United States v. Yonkers Board of Education Opinion

    UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OP AMERICA,
Plaintiff,

-and-

voNY.i&ivK >':rs branch-national association
.'FOR THE ADVANCEMENT OF COLORED PEOPLE, 

si • y
Plaintiffs-Intervenors,

* -against-
Ŷ lrÔ JKERS BOARD OF EDUCATION; CITY 
O’.OF YONKERS; and YONKERS COMMUNITY
n: IVET. ELOPMENT AGENCY,

80 CIV 6761 (LBS)

OPINION

Defendants.
-SL'S. , > -

Tn̂EPpEARANCES: (See next page) November 20, 1985

LEONARD B. SAND, U.S.D.J,



APPEARANCES
UNITED STATES DEPARTMENT OF JUSTICE 
Attorneys for Plaintiff United States 

Civil Rights Division 10th and Pennsylvania Avenue, N.W.
Washington, D.C. 20530 JOSHUA P. BOGIN, ESQ.
KENNETH BARNES, ESQ.
MICHAEL L. BARRETT, ESQ.
SARAH VANDERWICKEN, ESQ.
MICHAEL H. SUSSMAN, ESQ.Attorney for Plaintiffs-Intervenors N.A.A.C.P.
186 Remsen Street 
Brooklyn, New York 11201
VEDDER, PRICE, KAUFMAN, KAMMHOLZ & DAY 

Attorneys for DefendantsCity of Yonkers and Yonkers Community Development Agency 
1 Dag Hammarskjold Plaza 
New York, New York 10017 
MICHAEL W. SCULNICK, ESQ.
GERALD S. HARTMAN, ESQ.
BUTZEL, LONG, GUST, KLEIN & VAN ZILE 

Attorneys for Defendant 
Yonkers Board of Education 

1881 First National Building 
Detroit, Michigan 48226 
JOHN B. WEAVER, ESQ.
JOHN H. DUDLEY, ESQ.MARK T. NELSON, ESQ. ^
/Y / oA £>/̂  s O'ffmbro ̂  /4> 'HALL, DICKLER, LAWLER, KENT & HOWLEY 

Attorneys for Defendant 
Yonkers Board of Education 

460 Park Avenue New York, New York 10022 
PAUL WHITBY, ESQ.
UNITED STATES DEPARTMENT OF JUSTICE 

Attorneys for Third-Party Defendant 
Department of Housing & Urban Development 

Civil Division10th and Pennsylvania Avenue, N.W.
Washington, D.C. 10530 
RAYMOND M. LARIZZA, ESQ.
CALVIN E. DAVIS, ESQ.
KIRK VICTOR, ESQ.
JOHN W. HEROLD, ESQ.Office of LitigationUnited States Department of Housing & Urban Renewal 
451 7th Street, S.W.
Washington, D.C. 20410



TABLE OF CONTENTS

INTRODUCTION
HOUSING;
I. BACKGROUND................................................  1
II. STATEMENT OF CLAIMS AND LEGAL STANDARDS ..................  4
III. THE CITY'S EARLY ACTIVITIES UNDER THE NATIONAL HOUSING

ACT OP 1949 .............................................. 7
A. The Procedure for the Selection and Approval of

Sites for Public Housing...................   8
B. Site Selection for the City's 1949 Allocation of

Public Housing Units .................................. 9
C. Site Selection for Senior Citizen Housing. . .......... 23
D. The City's Campaign to Produce Sites for

Relocation Housing .................................... 26
E. The Nature and Effect of the Recurring Pattern

of Public Opposition .................................. 36
IV. THE RIVERVIEW PERIOD........................................ 50

A. Overview of Projects Approved..........................51
B. The Continuing Opposition to Subsidized Housingin the City's Heavily White Neighborhoods................ 54
C. The Pattern of Opposition and Apparent Acquiescence. . . 58

1. The City's campaign to Produce PrivatelySponsored Projects .........................  58
2. The Candeub & Fleissig Survey and the City's

1970 Memorandum of Understanding with the UDC. . . .  60
3. The Glenwood/Ridge Avenue Project and Rockledge

Heights.............................................. 68
4. Seven Pines.......................................... 72
5. Parkledge............................................ 75



D. The City's Explanations for its Confinement
of Subsidized Housing to the Southwest................ 84
1. Reliance on HUD's Express Directions..............  85
2. The Absence of Private Developer Proposals

In the E a s t ...................................... 91
3. Support for the Projects Among the

Minority Community................................ 93
4. The Unsuitability of East Side Sites.............. 98
5. The Pursuit of a Legitimate Planning Strategy to

Use Subsidized Housing to Rebuilt the Southwest . . 105
V. THE CITY'S ACTIVITIES UNDER THE HOUSING AND CC»4MDNITY

DEVELOPMENT ACT OP 1974.................................. 117
A. Subsidized Housing Under the Housing and Community

Development Act of 1974 .......................... 117
B. The Section 8 Existing Program...................   118
C. Section 8 New Construction Housing for

Senior Citizens .................................. 132
1. The City's Actions.............................. 132
2. The Effect of the City's Actions................ 138

D. Subsidized Housing for Families Under the HAPs
for Years I through I V . ............................ 140

E. The Palmer Road Site................................ 143
F. Actions Subsequent to the 1980 Contract

Conditions.......................................... 150
1. Salisbury Gardens ............................  151
2. The Neustadter S i t e ............................ 154
3. School 4........................................ 156

VI. THE EFFECT OF THE CITY'S ACTIONS ON THE RACIAL
CONFIGURATION OF YONKERS ................................ 169

VII. CONCLUSIONS OF L A W ........................................ 180



SCHOOLS;

I. THE CLAIMS OP UNLAWFUL SCHOOL SEGREGATION...................195
II. LEGAL STANDARDS............................................ 198
III. THE YONKERS PUBLIC SCHOOL SYSTEM ........................  207
IV. THE BOARD OF EDUCATION.................................... 220

A. School Openings, Closings, and Attendance Zone Changes 220
1. Introduction........................................ 220
2. School Openings.................................... 237

a. Martin Luther King, Jr. Elementary School . . . 238
b. School 1 0 ................................. . 254
c. Commerce Middle School.......................... 271

3. School Closings.................................... 271
a. School 1........................................ 272
b. 1976 School Closings............................ 279
c. Longfellow Middle School........................ 298

4. Attendance Zone Changes............................ 311
a. Schools 16 and 25 ............................ 322

B. Equal Educational Opportunity.......................... 317
1. Physical Characteristics............................ 318
2. Staff.............................................. 3233. Students............................................ 333
4. Educational Programs and Resources.................. 337
5. Integration and Educational Opportunity ...........  347

C. Vocational Education: Steering and Screening of
Minority Students ................................  349

D. Special Education...................................... 370
E. Teacher and Administrative Staff Assignments ........ 389
F. Refusal to Implement Desegregative Reorganization Plans 403

1. Introduction........................................ 403
2. NYU Report.......................................... 407
3. Phase II............................................ 439

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V. THE CITY..................................................479
’A. Interrelationship Between Housing Practices and

School Segregation.............................. 479
B. Budgetary Control.................................... 486
C. Mayoral Appointment of School Board Members.......... 494
D. School Site Selection................................ 511

1. Yonkers High School.............................. 512
2. Saunders Trades and Technical High School. . . . 515

E. Other City Involvement in School Affairs ..........  520
1. Attendance Zone Changes.......................... 520
2. City Council Resolutions........................ 522
3. School 4 ........................................ 523

VI. CONCLUSIONS OP L A W ......................................532
A. Jurisdiction........................................ 532

1. The Board of Education...........................532
2. The C i t y ........................................ 533

B. Liability............................................ 542
1. The Board of Education...........................543

a. Independent Conduct of School Authorities . 543b. Denial of Equal Educational Opportunity . . 552
c. Subsidized Housing Discrimination ........  555

2. The City .........................................569

VII. CONCLUSION............ 589

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INTRODUCTION

After nearly one hundred days of trial, during which 
eighty-four witnesses testified and thirty-eight depositions, as 
well as thousands of exhibits, were received in evidence, this Court 
is called upon to decide whether the City of Yonkers and the 
Yonkers Board of Education have intentionally created or maintained 
racial segregation in the City's housing and schools. Before 
embarking on that task, we pause to make clear why that is the 
issue, and why it falls upon this Court to resolve it.

First, the primary issue in this case is whether the City 
Qjf Yonkers and the Yonkers Board of Education 
segregated its housing and schools, since it is clear that by all 
relevant standards, Yonkers and its public school system are, in 
fact, racially segregated. The principal question in controversy 
is whether the segregated condition of the City's housing and 
schools resulted from the force of circumstances unintended by 
those who made the decisions which shaped the housing and schools 
of the community, or whether this condition resulted from an intent 
to segregate by race.

This Court is called upon to resolve this controversy 
because the United States Department of Justice has commenced and 
has maintained, through two administrations, an action alleging 
that the housing and schools in Yonkers have been intentionally 
segregated by race, and the Yonkers NAACP has intervened in that 
action.—'̂ The action was brought after efforts at conciliation of 
the "schools" portion of this litigation failed but with the the

\aaM c, -Vc (.XjvAoie, Vo (jtru /c W a

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Board of Education) that the initiation of this suit would not end 
efforts to resolve this controversy consensuallyMindful of the 
cost which this litigation has entailed,the divisiveness which 
it has engendered, the need for community support for voluntary 
remedial action to be successful —  in short, the overall 
desirability of a resolution which originated with the parties 
themselves —  more than the usual efforts at settlement were made.
This included appointment of a Special Master, whose sole function 
was to attempt to bring the parties to a consensual resolution.
See separate Opinion filed this date. By the closest of margins, 
the fruits of these efforts, an agreement among the Board of 
Education, the United States and the NAACP, conditional upon 
funding by the City Council, was rejected by that body. Hence, all 
efforts to consensually resolve this matter having failed, the task 
is ours and we shall proceed to discharge it.

We set forth below, in detail commensurate with the 
voluminous and complex nature of the record, the findings of fact 
and conclusions of law which lead to our determination that the 
plaintiffs have sustained their burden of proving that Yonkers' 
housing and schools have been intentionally segregated by race. In 
performing this inquiry, we have examined the actions of many 
officials who we are certain were entirely well-meaning public 
servants acting in accordance with their perception of what was 
feasible in the political and socioeconomic circumstances of 
Yonkers and in the best interests of that community. In many
instances, acts were taken by elected officials in response to

GzHAS'nWuir oP ooic'n wMembets of the Bcferd of Education also acted\ ubder similar '

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circumstances. We are not passing moral judgments with respect to 
the actions of those who steered the destiny of Yonkers; nor do we 
suggest that the implementation of measures contrary to the 
political climate of the times would have been an easy task. Our 
inquiry is whether, under applicable legal standards, actions taken 
by the City of Yonkers and the Board of Education, with respect to 
housing and public schools, were in whole or in part intentionally 
segregative. We find that they were, for the reasons set forth 
below.

-Ill-



HOUSING

I. BACKGROUND
The City of Yonkers is one of the five largest cities in 

the State of New York. Its population, according to 1980 census 
figures, is 195,331. Yonkers is located in Westchester County and 
is bounded on the west by the Hudson River, on the east by the Bronx 
River, on the south by the City of New York, and on the north by the 
Village of Hastings-on-Hudson and the Town of Greenburgh. The City 
is approximately three to three and one-half miles wide, four to 
six miles long, and encompasses some eighteen to twenty square 
miles. It is divided lengthwise by a series of ridges and valleys 
which run north to south, roughly parallel to the Hudson River. 
The Saw Mill and Nepperhan Rivers flow through the more western 
valleys.

Over the course of the nineteenth century, Yonkers 
evolved from what was primarily a farming village into a signifi­
cant industrial and commercial center. This development was
concentrated in the Southwest section of the City in the areas

\along and between the Nepperhan, Saw Mill and Hudson Rivers, and 
along the Hudson River Railroad, which opened in 1849. Factories 
were built along the rivers, and a central commercial district, 
known as Getty Square, developed between the factories and along 
the railroad. From the latter portion of the nineteenth century up 
to World War II, Getty Square was the hub of commerce for 
Westchester cities along the Hudson as far north as Peekskill. 
With the factories, came large amounts of worker housing —

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generally poor in quality and heavily clustered in the valleys of 
the Southwest section of the City. The Northwest and East sections 
of Yonkers remained largely rural until the early 1920s when the 
Saw Mill River Parkway opened and a pattern of low density suburban 
housing development began. The pattern continued and accelerated 
with the construction of the Harlem Division Railroad, the Bronx 
River Parkway, the New York State Thruway, and the Sprain Brook 
Parkway —  all of which run in a north-south direction and provide
commuters with easy access to New York City*

The three decades following World War II were the time of 
greatest housing development in Northwest and East Yonkers. Initi­
ally, the primary form of development was the single family housing 
subdivision. Somewhat later, in the 1960s and 1970s, multi-family 
apartment buildings were built in increasing numbers along the 
major arterial routes and the commuter rail lines.

As the Northwest and East sections of the City expanded, 
however, the Southwest entered a period of decline. The housing 
stock deteriorated, and was not replaced or renovated on any 
significant scale. In 1954, with the closing of the Alexander 
Smith Carpet Mills, the Southwest's largest employer, the area 
began to lose its industrial base. In addition, the Getty Square 
central business district began to stagnate, a phenomenon attribut­
ed primarily to lack of adequate highway access and parking, and to 
increased competition from shopping malls such as the Cross County 
Shopping Center.

In 1949, with the passage of the National Housing Act of 
1949, the City embarked upon a series of urban renewal and

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subsidized housing programs that have continued to the present day. 
Both programs have been largely confined to the Southwest section 
of the City. As of 1949, the City had two subsidized housing 
projects (the 550-unit Mulford Gardens and the 250-unit Cottage 
Place Gardens), both of which were located in Southwest Yonkers. 
Between 1949 and 1982, thirty-six more subsidized housing projects 
were developed, thirty-four of which are also located in Southwest 
Yonkers.-' The two exceptions are Curran Court, a 186-unit project 
for senior citizens on Martin Ray Place in East Yonkers, and Hall 
Court, a 48-unit project for families in an East Yonkers neighbor­
hood known as Runyon Heights. In all, the Southwest contains 6,644 
or 97.7% of the City's 6,800 existing units of subsidized 
housing.—^

The extreme concentration of subsidized housing that 
exists in Southwest Yonkers today is matched by an extreme concen­
tration of the City's 18.8% minority population.—'̂ According to 
1980 census figures. Southwest Yonkers accounts for 37.5% of the 
City's total population, but contains 80.7% of the City's minority 
population. Seven of the Southwest's seventeen census tracts have 
a minority population greater than 50%. Six more have a minority 
population ranging between 25% and 50%. None has a minority 
population that is less than 9%.

In contrast, only two of the thirty-two census tracts 
outside the Southwest have a minority population greater than 6%. 
One is census tract 7, whose 28.6% minority population is clustered 
in the southern end of the tract, where it abuts Southwest Yonkers 
and along the Hudson Division Railroad on the western edge of the

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7 /tract.-' The second is census tract 18 in East Yonkers, which
contains Runyon Heights, a longstanding enclave of black home 
owners, and the site of Hall Court, the only subsidized housing 
project for families that is located outside Southwest Yonkers. 
The minority population of census tract 18 is 79.8%. The remaining 
thirty census tracts have minority populations ranging from 1.5% to
6.0%, with half having less than 3%. GX 1225.1, 1225.6.-8/

II. STATEMENT OP CLAIMS AND LEGAL STANDARDS 
Plaintiffs contend that the existing concentration of 

subsidized housing in Southwest Yonkers reflects a pattern and 
practice of housing discrimination by the City in violation of 
Title VIII of the Civil Rights Act of 1968 (also known as the Fair 
Housing Act)—' and the equal protection clause of the fourteenth 
amendment to the United States Constitution.— '*̂

Specifically, plaintiffs contend that City officials, in 
response to constituent pressures, have made the preservation of 
existing patterns of racial segregation a controlling factor in 
site selection for subsidized housing. According to the 
plaintiffs, subsidized hous>ing for families has been equated with 
minority housing, and for that reason, has been confined to the 
disproportionately minority areas of the City —  most often, the 
downtown area of Southwest Yonkers. Subsidized housing for senior 
citizens is alleged to have been less consistently identified with 
minority housing, and therefore less consistently confined to 
minority areas. Nonetheless, according to plaintiffs, it, too, has 
met racially influenced resistance from area residents, often based

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Vhat it miqht be converted to housing for families, on the concern that it mign
Plaintiffs contend ttat the Saw Mill Sivet Pathway has been vtewe 
aa the battier separating overwhelmingly white East Yonhets tom 
the racially mixed ,and. since the mid-lS60s. 
minority) population of Southwest Yonkers, and that City o
have been consistently unwilling, even when strongly presse

w K racial barrier by placingfederal authorities, to breach that. . families east of the Saw Mill Rivet Parkway.
subsidized housing for families eas

The City, in turn, contends that its selection of sites
tor subsidized housing has been in no respect discriminatory, and
that any segregative effect which the site selections may have a
was entirely unintended. In particular, the City insists that the

V Of subsidized housing in Southwest Yonkersextreme concentration of suosiaiz
reflects only a consistent strategy, adopted for reasons unrelated
to race, to use subsidized housing to help rebuild

 ̂ that strategy, the City argues that it wasYonkers. In defense of that strar gy,
1. 14-ant-Q as well as by its own planningrecommended by outside consultants as wel

d .. wii-h and indeed even encouraged staff, and that it was consistent wit ,
by, federal housing and urban renewal policy.

AS the contentions of the parties suggest, the primary
, Kofore US is Whether the actionsfocus of the inquiry now before us i

nasari-aicpn with discriminatory inten_t challenged by plaintiffs were undertaken w
.. specifically, the intent to create or maintain racra 
segregation. Rn action which merely has the unintended ^  o 
creating or maintaining racial segregation violates nerther 
constitution, of Rrlington Heja>lts v. M e t r o p o l i t a n . ^

U.S. aSl, 2S4-ES ,1971,

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Heights I) (citing Washington v. Davis, 426 U.S. 229 (1976)), nor, 
except in certain limited circumstances, the Fair Housing Act.—

A plaintiff is not required to prove, however, that 
segregative intent was the sole or even primary motive underlying 
the defendant's actions. Indeed, as the Supreme Court noted in 
Arlington Heights I,

[rlarely can it be said that a legislature or 
administrative body operating under a broad 
mandate made a decision motivated solely by a 
single concern, or even that a particular 
purpose was the "dominant" or "primary" one.
In fact, it is because legislators and admini­
strators are properly concerned with balancing 
numerous competing considerations that courts 
refrain from reviewing the merits of their 
decisions, absent a showing of arbitrariness 
or irrationality. But racial discrimination 
is not just another competing consideration.
When there is a proof that a discriminatory 
purpose has been a motivating factor in the 
decision, this judicial deference is no longer 
justified.

429 U.S. at 265-66 (footnotes omitted).
A policy of racial segregation, in other words, is imper­

missible even as a secondary motive for action, and "cannot be 
justified by the good intentions with which other laudable goals 
are pursued." Gautreaux v. Chicago Housing Authority, 296 F.Supp. 
907, 914 (N.D.Ill. 1969), (citing Brown v. Board of Education, 347 
U.S. 483 (1954)); see also Cooper v. Aaron, 358 U.S. 1, 16 (1958) 
(quoting Buchanan v. Warley, 245 U.S. 60 (1917)); United States v. 
City of Parma, 494 F.Supp. 1049, 1054 (N.D.Ohio 1980), aff'd in 
relevant part, 661 F.2d 562 (6th Cir. 1981), cert, denied, 456 U.S. 
926 (1982).

The factors that are to be considered in determining 
whether actions were taken with discriminatory intent include the

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degree of any discriminatory effect; the historical background of 
the actions; the specific sequence of events leading up to the 
actions; the presence or absence of departures from normal 
procedures or substantive criteria; and the legislative history of 
the actions. Arlington Heights I, supra  ̂ 429 U.S. at 266-68.— ^

To prove a pattern and practice of discrimination, a 
plaintiff must prove that it was a regular (although not necessari­
ly uniform) practice of the defendant to act with discriminatory 
intent. See United States v. City of Parma, supra, 494 F.Supp. at 
1095. And in determining whether the plaintiff has carried that 
burden of proof, the court must view the evidence as a whole. Id. 
at 1055 (citing cases) . As the District Court for the Northern 
District of Ohio explained in United States v. City of Parma;

The character and effect of a general policy is 
to be judged in its entirety, and not by 
dismembering it as if it consisted of unrelated 
parts... Even intrinsically lawful acts may 
lose that character when they are constituent 
elements of an unlawful scheme.

Id. (citations omitted) . In large part, this rule is no more than a 
reminder of the general rule of evidence that when actions having a 
particular effect are repeated, the inference is stronger that the 
effect of the actions was Intended. See 2 Wigmore, Evidence § 312 
(3d ed. 1940).

III. THE CITY'S EARLY ACTIVITIES UNDER THE NATIONAL HOUSING ACT OF 
1949

Upon passage of the National Housing Act of 1949, the 
City of Yonkers quickly applied for the federal housing assistance 
made available under Title III of the Act, and just as quickly

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encountered a serious obstacle to its ability to make use of the 
assistance. The City's announcement of the first proposed site for 
a public housing project to be funded under the Act (a site in 
Northwest Yonkers) prompted immediate and strong opposition from 
area residents and civic associations. The phenomenon was one 
which would repeat itself with respect to most of the other sites 
subsequently proposed, and would strongly influence the willingness 
of the Planning Board and the City Council to approve the sites. 
The result was the loss of available and badly needed federal 
housing assistance, the repeated compromise of stated planning 
objectives, and, eventually, endangerment of the City's entire 
urban renewal program due to the City's consequent inability to 
provide relocation housing for those displaced by urban renewal. 
The sites that prompted community opposition almost invariably were 
those in overwhelmingly white East and Northwest Yonkers or the 
overwhelmingly white areas of Southwest Yonkers. The few sites 
that appear to have prompted little or no community opposition, and 
that successfully emerged from the site selection process, tended 
to be in the- more heavily minority areas of the City —  and in 
particular, in and around the downtown area of Southwest 
Yonkers.-^/

A. THE PROCEDURE FOR THE SELECTION AND APPROVAL OF SITES FOR 
PUBLIC HOUSING

Title III of the National Housing Act provides funds for
the construction of public housing —  that is, low-income housing

14/owned and operated by a local housing authority.— ' Under the Act, 
the housing authority applies for a "reservation" of funds

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sufficient to build a certain number of housing units. Sites are 
then selected by the housing authority, submitted for any necessary 
local approvals, and once locally approved, submitted to the 
federal authorities.

The agency authorized to proposed, construct, and operate 
public housing in Yonkers is the Yonkers Municipal Housing 

Authority ("MHA"), a public corporation organized in the 1930s 
pursuant to New York's Public Housing Law. Under that law, any 
projects undertaken by the MHA must be approved by a majority vote 
of both the City's Planning Board and the City Council, or (if the 
Planning Board disapproves), by a three-quarters majority of the 
City Council.

The City Council consists of twelve members plus the 
Mayor, all of whom are elected for two-year terms. Throughout the 
years in question, each of the City's twelve wards held a separate 
election to choose a representative on the Council. The only
member chosen in a city-wide election was the Mayor, who serves on 
the Council as a Councilmember-at-large.

The Planning Board and the MHA Board each consists of 
seven members. Planning Board members are appointed by the Mayor; 
MHA Board members are appointed by the City Manager, who, under the 
City Charter, is the chief executive and administrative officer of 
the City, and who, in turn, is appointed by the City Council.

B. SITE SELECTION FOR THE CITY'S 1949 ALLOCATION OF PUBLIC HOUSING 
UNITS

City officials were eager to take advantage of the 
housing assistance made available under Title III of the 1949

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Housing Act. Due to the rapidly deteriorating condition of the 
housing stock in the Southwest, there was, in general, a serious 
need for decent low-cost housing in Yonkers. In addition, the 
construction of public housing was perceived to be important to the 
urban renewal plans which the City had begun to formulate in 
response to the urban renewal assistance made available by Title I 
of the 1949 Act.

Title I established a program of loans and capital grants 
for slum clearance and redevelopment; the program contemplated that 
cities would acquire and clear blighted land, prepare the site, and 
then sell or lease it to private enterprises for redevelopment. 
Title I also required, however, that the cities provide "decent, 
safe and sanitary" housing for persons displaced from urban renewal 
areas, and city officials considered public housing to be the only 
likely source of relocation housing for families living in urban 
renewal areas. GX 1058.16.

In August of 1949, a few months after the passage of the 
1949 Act, the City applied for a reservation of 1,000 units of 
public housing, and received an allocation of 750 units. The 
deadline for site submission was August of 1950. It took the City 
nine years, however, to approve a sufficient number of sites to 
make use of that first year's allocation of public housing units, 
and the chief reason for the delay was recurring community 
opposition to the various sites proposed.

The MHA announced its first proposed site in February of 
1950. The site was a vacant parcel of land on Nepperhan and Roberts 
Avenue, an overwhelmingly white area in Northwest Yonkers. GX

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1225.41. Among the stated reasons for the selection of the site 
was that the use of vacant land (as opposed to a site which required 
clearance of existing structures) was less costly and would 
eliminate the need for relocating those displaced by the clearance 
of the site —  a task that had proven to be a major obstacle to the 
timely completion of Cottage Place Gardens, the second of the 
City's two existing public housing projects. GX 1058.5; 1053.27.

Within a week of the MHA's announcement of the 
Nepperhan/Roberts site, however, a neighborhood group called the 
Rose Hill Community Association adopted a resolution opposing the 
choice. Copies of the resolution were sent to the MHA, the City 
Planning Board and the City Council. GX 1058.6, 1058.9. A few days 
later, the Yonkers Council of Civic & Taxpayers Associations joined 
the opposition. GX 1058.8. The Rose Hill resolution urged that 
public housing be used to clear slums, and it maintained that the 
Nepperhan/Roberts site was, in any case, inappropriate for public 
housing due to inadequate school, transportation, and shopping 
facilities. "Locating this project in a present slum area," the 
resolution added, "would not have a school problem as the school 
probably already exists." GX 1058.9. The Nepperhan/Roberts site 
was subsequently disapproved by the Planning Board, GX 1058.17, an 
action which prompted a letter of commendation from the Yonkers 
Council of Civic & Taxpayers Associations. GX 1058.22.

At least two other sites formally proposed by the MHA 
soon thereafter likewise prompted strong community opposition. 
Indeed, the volume of complaints received by the Mayor's office 
with respect to the various sites being considered for public

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housing was so great that two members of the City Council were 
appointed to attend MHA meetings, consult with the MHA Board, and 
in general "let the public know that the [City] Council [had] an 
interest" in site selection. GX 1204.4.

The two sites in question —  Park Hill Avenue at Van 
Cortlandt Park Avenue and Lake Avenue —  were both in heavily white 
areas of Southwest Yonkers. GX 1225.41. In addition, both were 
originally supported by the councilmen representing the wards in 
which the sites were located (the seventh and sixth wards 
respectively), and then subsequently opposed by those councilmen, 
after local residents had made their own opposition known. Seventh 
ward residents appeared at a Planning Board meeting held to 
consider the Park Hill Avenue site and submitted a petition in 
opposition. A resident identifying himself as a spokesman for the 
group stated that "it was not in the best interests of the City of 
Yonkers and certainly not to the best interests of adjacent 
property owners, to place this project on this site." GX 1058.24. 
The resident contended that the "terrain [was] irregular" and that 
the project "would have a tendency to harm property values in the 
neighborhood...." Id. A few days later, a new article reported 
that the councilman for the seventh ward, who had previously asked 
that his ward be surveyed for possible sites, had written to the 
Chairman of the City Planning Board (with a copy to press), asking 
that the Park Hill Avenue site be excluded from consideration and 
expressing his disappointment that the Nepperhan/Roberts site in 
Northwest Yonkers had been rejeced. GX 1058.25. No further action 
was taken on the seventh ward site.

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Similarly, a site on Lake Avenue in the sixth ward was 
originally recommended by the ward councilman and approved by the 
Planning Board and City Council. GX 1058.31, 1058.37, 1058.43, 
1058.47. A subsequent attempt to expand the site, however, 
resulted in strong public opposition to both the expansion and the 
site itself. Representatives of an ad hoc committee of sixth ward 
residents appeared at a Planning Board meeting to present a 
petition in opposition and to speak against the site. GX 1058.47. 
The committee's objections were repeated at two additional Planning 
Board meetings held several weeks later, at which time the ward 
councilman announced that he, too, was now opposed to the site. GX 
1058.48; GX 1058.51. The Planning Board voted unanimously to 
disapprove the requested extension, and the following week the MHA 
voted to abandon the site. GX 1204.6. Area residents appeared at 
the MHA meeting with a petition bearing 1,000 signatures which, 
they maintained, "barely scratch[ed] the surface of those who 
object to the site." rdj_ A spokesman for the protesters mentioned 
in passing the inadequacy of school and transportation facilities, 
but then characterized those as "minor objections," and stated that 
the "real objection" to a housing project on the site was the 
effect that it would have on property values in the area. He 
predicted that it would cause "financial ruin" to neighboring 
property owners. Id.

By December of 1950, three months had passed since the 
deadline for submitting sites for the City's 1949 allocation of 750 
public housing units, yet the City had approved and put into 
development only one site. The site was on Palisade Avenue, in one

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of the more heavily minority areas of Southwest Yonkers, slightly 
to the south of, and halfway between, the City's two existing 
public housing projects. GX 1225.41. The site had apparently 
prompted no public opposition, and although the City's Planning 
Director had suggested that the site was better suited for 
industrial use, it had been approved and was scheduled for 274 
units of public housing. GX 1058.37; 1058.38.

In December, a federal official appeared at a meeting of 
the MHA and told the City that it faced imminent loss of the nearly 
500 units remaining in its reservation unless additional units were 
put into development immediately. GX 1204.7. The official also 
cautioned that funding decisions for future years would take into 
account whether the City had been able to make use of previous 
allocations. Id. The City responded by voting to increase the 
number of units scheduled for the Palisade Avenue site to 415, 
despite a prior recommendation by the Planning Board that the size 
of public housing be limited to 250 units so as "to reduce their 
impact on the neighborhoods where they are located" and so that 
they might "be better integrated with, other types of housing 
existing or to be built in the project areas." GX 1058.16 at 11767. 
When the 413-unit Schlobohm Houses opened on Palisade Avenue, all 
of the City's 1,213 units of public housing were concentrated 
within several blocks of each other in Southwest Yonkers.

In 1951 through 1953, efforts continued to find 
approvable sites for the more than 300 public housing units 
remaining in the City's 1949 allocation. Eleven sites were 
formally proposed by the MHA (six in the Southwest, two in the

-14-



Northwest, and three in East Yonkers) , but none was approved and 
submitted to the federal authorities, and the remaining units of 
public housing were lost by the City when the funding legislation 
expired in 1953.— ^

Once again, the period was characterized by pervasive 
community opposition to the various sites proposed. City officials 
were heard to observe during these years that there seemed to be 
opposition to every site proposed, GX 1058.65, that "[s]ome civic 
organizations are in favor of public housing as long as you don't 
put it in their neighborhood," GX 1059.4, and that the more time 
that was given to the consideration of a site, the more objections 
there were. GX 1204.13. The Yonkers Council of Civic & Taxpayers 
Associations meanwhile continued to urge that public housing be 
used solely to clear slums, GX 1058.102; 1059.6, and it was joined 
in that position by other residents, GX 1059.1; 1058.86, and even, 
on occasion, by some councilmen. GX 1204.13.

At least eight of the eleven sites formally considered 
during these years (including all three east side sites) prompted 
opposition from area residents, local civic associations, and ward 
councilmen.— / And once again, a dominant concern —  particularly 
in connection with the sites proposed in East Yonkers —  was the 
effect that a public housing project would have on surrounding 
property values.

With respect to one East Yonkers site, for example, a 
letter sent to the Planning Board and quoted by the press objected 
to the prospect of being "uprooted" from the neighborhood and 
stated that it was "a well-known fact that slum-clearance projects

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often lead to the eventual deterioration of the surrounding 
community by the element which they attract." GX 1059.5. Various 
neighborhood associations likewise contended that selecting one of 
the East side sites proposed "would be seriously detrimental to 
Ithel well-being ... and Interest" of area residents and indeed of 
the City as a whole. GX 1059.7; see also GX 1059.6; 1059.8;
1059.9. The president of one of those associations suggested to 
the City Planning Board that the East side sites under 
consideration should be reserved for the same "class of people now 
there," GX 1059.9, and argued that the "people a public housing 
project would serve" would in any case find it burdensome to travel
to East Yonkers. Id.

Edward O'Neill, the councilman for the East side ward in 
which the proposed sites were located, likewise argued strongly 
against their appropriateness for public housing. Soon after the 
sites were announced, O'Neill publicly declared that he was "not 
opposed to low-rent housing, but it was inconceivable to thlml that 
it should be located in areas where there is no possible need for it 
and where those areas 'cannot possibly handle it." GX 1059.6. 
O'Neill noted that "practically every civic and social group in 
[his own and a neighboring East side) ward has gone on record 
strongly opposing the location of low rent housing on premium 
land," and that since the East side schools were already 
overcrowded, the addition of 335 families "would cause Irreparable 
harm." Id^ m  addition, O'Neill appeared at a Planning Board 
meeting held to consider the sites and argued that putting public 
housing in "fine, residential" communities would be "a body blow to

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[the City's] finances." GX 1059.9; GX 1059.10. O'Neill appealed
to the Board "as- property owners," suggesting that they surely knew

what public housing does to the surrounding 
areas. If you put housing in an area not 
desirable for it you do a disservice to the people in that neighborhood. Many people have 
sunk their last cent into their homes.

GX 1059.10.
Like the sites opposed by area residents in 1950, the 

eight sites opposed in 1951 through 1953 all were in areas of the 
City that were overwhelmingly white. GX 1225.41. Two of the three 
sites for which there is little or no evidence of opposition —  
including one (the Waring site) which was strongly supported by 
some civic associations and councilman as "ideal" for public 
housing —  were in the downtown (and more heavily minority) portion 
of Southwest Yonkers. Id.— MHA members characterized the Waring 
site as a "realistic" choice that had the "greatest chance" of 
winning City Council approval and proposed it twice as the final 
deadline for site submission drew near in 1953. GX 1059.4; 
1204.18. The Planning Board, however, rejected the site each time, 
explaining that it was poorly situated for residential use and in 
an area that was already overcongested. GX 1059.11; 1059.17.

In 1956, under new funding legislation, the City was able 
to renew its reservation of the 335 public housing units remaining 
in its 1949 allocation. However, when site selection efforts 
resumed in 1956, the pattern of community opposition resumed as 
well. Despite formal consideration of at least eight sites in 1956 
and 1957, and despite repeated expressions of concern by City 
officials that readily available housing assistance might once

-17-



again be lost, and that the City's urban renewal plans might be 
delayed for lack of relocation housing, see e.g., GX 1060.16; 
1060.23; 1060.25; 1060.41; 1062.2; 1062.19, the City did not 
approve a single site for public housing.

Four sites (two in Southwest Yonkers and two in East 
Yonkers) were formally proposed by the MHA in 1956. Three prompted 
vigorous community opposition; the fourth (Western Avenue in 
Southwest Yonkers) was opposed by the Planning Board on the ground 
that it was in the path of a proposed arterial route. None was 
approved by the City Council.

With respect to two of the three sites that prompted 
community opposition —  St. Nick's Oval in East Yonkers and a site 
on Fillmore and Garfield Streets in Southwest Yonkers (commonly 
known as the Russian American Memorial Park or RAMP site) —  the 
pattern was the same as in previous years. The sites were in 
overwhelmingly white neighborhoods, GX 1225.41, and were vigorously 
opposed by area residents and neighborhood associations at rallies 
and in petitions and letters. See generally GX 1060.

The third site, however, presented a variation on the 
theme. The site (Ridgeview Avenue) was in Runyon Heights, a long­
standing and self-contained enclave of black homeowners in East 
Yonkers, and its proposal produced the first apparent evidence of 
open discussion of the racial implications of site selection for 
public housing. An attorney for one of the Runyon Heights 
neighborhood associations told the City Council that the trend had 
moved "away from putting housing sites in minority areas, as it has 
a tendency to create slums" and argued that the City "must give

-18-



this area a chance to break its bounds," saying that "if we drop a 
housing project in there, it will never have a chance." P-I 105- 
17. A spokesman for the Yonkers branch of the NAACP similarly 
declared that the organization was "disturbed" to find a project 
being proposed for an area that was so heavily minority, warning 
that the project could become a "Negro project" and the school that 
served it a "Negro school." Id. A representative of the Urban 
League of Westchester County also appeared before the City Council 
and opposed the project, arguing that studies had shown that when a 
housing project was put in a predominantly black area, it became 
"difficult to obtain [a] nonsegregated occupancy." Id.

At two City Council sessions attended by some 400 to 
1,000 area residents, the Council voted to disapprove all three 
sites —  actions which reportedly prompted applause and cheers from 
the audience. GX 1060.23; 1060.40; P-I 105-42. Although the 
votes were unanimous, there were expressions of concern by some 
council members about the effect of the votes since the new 
deadline for site submission was only a few days away. Id. As the 
last site (St. Nick's Oval) was disapproved, one councilman 
observed that he felt the vote was "signing the death knell" for 
the city's reservation of housing units, and that the City could 
not hope to obtain urban renewal funds unless it had a place to 
relocate displacees. P-I 105-42.

However, the City was able to obtain yet another 
extension of the deadline, and site selection efforts continued. 
In 1957 and 1958, community opposition was a frequent topic of 
discussion in site selection meetings and press reports. See 
generally GX 1062, 1063. In January of 1957, for example, the

-19-



councilman for the fourth ward proposed a tenth ward site, saying 
that its relatively isolated location made it "a natural" for 
public housing since "no indignant citizens could come and 
protest." GX 1062.1. Protests were reported, however, by the 
tenth ward councilman, who promised to defeat the proposal. GX 
1062.3, and the MHA voted unanimously to reject the site. GX 
1062.5.

Meanwhile, two Southwest Yonkers sites were proposed by 
private developers for Mitchell-Lama projects, a state-funded 
subsidized housing program for middle-income (and, therefore, 
usually white) residents. The proposals prompted no opposition, 
and the City Council readily approved the tax abatements needed to 
enable the two projects —  Sunset Green (a 70-unit cooperative on 
Hawthorne Avenue) and Sunnyside Manor (a 121-unit rental building 
on Sunnyside Drive) —  to go forward. GX 1061; 1066.

In the spring of 1958, the MHA tried again and proposed 
five more sites for public housing. Three were in Southwest 
Yonkers (Stanley Avenue; School Street; and Western Avenue); and 
two were in East Yonkers (the old School 1 site and Smart Avenue). 
GX 1063.2. Emmett Burke, the Secretary-Director of the MHA, 
described the sites to the Planning Board as "the least 
objectionable" of those surveyed but nonetheless that there would 
be "a lot of objections on the grounds of race or age in certain 
sites." GX 1063.8. Burke went on to observe that "[mjany people 
simply do not want public housing." Id. The Planning Board 
approved the Stanley Avenue, Smart Avenue, and School 1 sites, and 
disapproved the School Street and Western Avenue sites (the latter

- 20-



for the second time) on the ground that lay in the path of a
proposed arterial route. Id. Two of the sites approved by the
Planning Board were in overwhelmingly white neighborhoods; the
third (the School 1 site) was in Runyon Heights. GX 1225.41.

In April, as the City Council was preparing to consider
the proposed sites, a letter was sent to the council members from a
committee claiming to have been delegated by twelve taxpayer and
civic associations "to acquaint each and every member of the [City]
Council with the fact that there is tremendous opposition to
additional low rent public housing in Yonkers." P-I 106.26 (GX
1063.13). The letter went on to state that;

We personally prefer a public referendum with 
time to acquaint each and every citizen with the full facts on public housing. Where will 
these tenants come from? How will we provide 
schools? How much will it cost us over the 
years? What safeguards do we have against our 
having to absorb the overflow from Puerto Rico 
or Harlem? Where will the people go that will 
have to vacate their private homes?

Id. The letter closed by saying that "each and every one of your
constituents is looking to you to again knock down this latest
attempt on the part of the public housing group to shove off on the
citizens of Yonkers something that the majority does not want."
Id. A week later, the City Council voted to refer the proposed
sites to its committee on housing. GX 1065.15.

The following month, as the Council again prepared to
vote on the sites. Mayor Kristensen publicly observed that "we're
running into the same situation we customarily do and have done
over the past nine years or so, that is, everyone wants housing,
but no one wants it in his neighborhood.... The time is coming when

- 21-



we are going to get those 335 units one way or another." GX 
1063.17.

On May 27, 1958, nearly nine years after the City 
received its 1949 allocation of public housing units, the City 
Council finally approved two sites for the last of the units in the 
allocation. In addition, a third site was approved for 108 units 
of senior citizen housing (a newly authorized form of public 
housing). The three sites approved were School Street and the 
School 1 site for family housing and the Western Avenue site for 
senior citizen housing. GX 1063.18.

In making its choices, the Council appears to have given 
little weight to the views of its Planning Board. The School 
Street and Western Avenue sites were strenuously lobbied against by 
the Planning Board on the ground that they would interfere with 
construction of an arterial system that was critical to the future 
health of the downtown area. GX 1063.8; 1063.17; see also Tr. 
9621-24 (Pistone) . Yet, both sites were approved by the 
Council.— '̂ In addition, the Planning Board recommended the 
Stanley Avenue and Smart Avenue sites —  and indeed the City's 
Planning Director, Philip Pistone, had characterized the latter as 
"ideal." GX 1063.8; Tr. 9616-17 (Pistone). Yet, the Smart Avenue 
site was strongly opposed by area residents and the ward 
councilwoman, and both sites were rejected by the Council. GX 
1063.8; 1063.18; 1063.19.

Following a by-now familiar pattern, the sites rejected 
were in overwhelmingly white areas of the City, and both sites 
approved for family housing were in heavily minority areas. GX

- 2 2 -



1225.41. Only the Western Avenue site which was to be used for 
senior citizen housing was in a heavily white area, and even that 
site was not far from blocks with a significant minority 
population. I d ^

C. Site Selection for Senior Citizen Housing
For the next few years, the City focused primarily on 

public housing for senior citizens —  an activity that proved 
somewhat less controversial but not entirely problem-free. In 
1961, a proposal to put 300 units of predominantly senior citizen 
housing on Garden Street just north of Schlobohm Houses (the 413- 
unit project built on Palisade Avenue in the early 1950s) was 
approved with no apparent community or official opposition, GX 
1064.1-.5, despite that fact that with Schlobohm Houses in place, 
the area already contained an amount of public housing that was far 
in excess of what the Planning Board had recommended. See, HOUSING 
III.B supra. A subsequent attempt to expand the site in 1962, 
however, did prompt opposition on the ground that it would result 
in an overconcentration of public housing units in the area. GX 
1064.14, 1064.15, 1064.19. The Planning Board initially
disapproved the expansion, then three months later voted 3-2 (with 
two members absent) to reverse itself. GX 1064.16; GX 1064.19; 
1064.20. A colloquy that immediately preceded the second vote 
suggests that little had changed from the preceding years. 
Planning Director Philip Pistone stated that he would prefer to 
have senior citizen housing "dispersed," and that there was no 
reason why it should all be concentrated in one area ... one ward."

-23-



GX 1064.20. In response, a Board member stated simply that, "what 
you say is interesting, but when you come up before the [City] 
Council, every councilman objects to it." Id. The Planning 
Board's vote was subsequently challenged and held invalid on the 
ground that the full Board had not been present. GX 1064.21; GX
1064.23. The City Council then deferred consideration of the 
expansion, and it was apparently pursued no further. GX
1064.24. ̂ /

Instead, a new round of efforts was undertaken to find 
sites for senior citizen housing. In February of 1963, the MHA 
proposed eight sites —  four in Southwest Yonkers and four in East 
Yonkers. GX 1069.7.— '̂ The sites were announced as proposed sites 
for senior citizen housing, but the Secretary-Director of the MHA 
was quoted by the press as saying that the sites might also be 
considered for family housing. GX 1069.7. Protests quickly arose 
with respect to three of the East side sites, and these sites were 
largely dismissed by the MHA's Secretary-Director at a subsequent 
Planning Board meeting. GX 1069.10; 1069.11; 1069.13; 1069.15. 
The Lincoln Park Taxpayers Association, writing in opposition to 
the sites, raised familiar concerns about decreasing property 
values and adverse effects on the "character of the community." GX 
1069.11. The Association urged, as other groups had in the past, 
that public housing be used solely to clear slums. Id. No 
distinction was drawn between public housing for senior citizens 
and public housing for families. Concern was simply expressed that 
the placement of any public housing in the area would be "at the 
sacrifice of real estate values in the community, and [that]

-24-



declining real estate values would be followed by neglect and 
deterioration of the neighborhood." Id.

The following month, in early March of 1963, the Housing 
Committee of the City Council recommended approval of two of the 
other sites for senior citizen housing —  Martin Ray Place in East 
Yonkers (where temporary veterans housing had been located) and a 
site on Ashburton Avenue and Seymour Street in Southwest Yonkers —  
and the Council scheduled a site selection hearing for March 26th. 
GX 1069.20. The next day, the MHA withdrew the remaining six sites
from consideration. GX 1069.21.

In the weeks before the hearing, the Board of Education 
and the PTA opposed selection of the the Martin Ray Place site on 
the ground that it had been promised to the Board for a much needed 
expansion of School 31. GX 1069.22; 1069.25. In addition, the 
Pastor of St. Joseph's Church opposed the selection of the 
Ashburton/Seymour site on the ground that there was already a 
serious overconcentration of public housing in the downtown 
Southwest Yonkers area. GX 1069.24. Both protests were reiterated 
at the City Council hearing. GX 1069.26; 1069.28. No neighborhood 
or civic associations appear to have joined the opposition, 
however, and faced with a firm site selection deadline of April 1 
(the deadline having already once been extended), and with a 
reported 1,800 to 2,000 applications for senior ciizen housing, the 
Council voted to approve both sites. GX 1069.27; 1069.28. The 
thirty-two unit Kristensen Houses (on Seymour Street) and the 186- 
unit Curran Court (on Martin Ray Place) opened in 1967. C-1700.

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D. The City's Campaign to Produce Sites for Relocation Housing
From 1958 (when the last of the City's 1949 allocation of 

public housing units for families was finally put into development) 
through 1965, no apparent efforts were made to increase the City's 
stock of public housing for families. The only additional family 
housing approved during this time came with the decision to devote 
the City's Jefferson-Riverdale (or "Stage I") urban renewal area 
(an area just southwest of City Hall in downtown Yonkers) to 
middle-income housing. In the spring of 1962, the City Council 
approved, without apparent objection, a tax abatement for a 544- 
unit Mitchell-Lama project to be called Phillipse Towers, GX 
1067.5; 1067.11, and the project opened in September of 1964. GX 
1067.13.

The City's long period of inactivity with respect to the 
development of low-income family housing does not appear to have 
been based on any perception that what had been characterized as a 
"desperate" need for such housing —  both in general and as a 
relocation resource —  had been met. A strong indication that the 
need had not been met came in 1965, when HUD notified the City that 
its preliminary application for its Stage II (or "Riverview") urban 
renewal project had been rejected. The project would have involved 
the relocation of 1,300 families, and was rejected on the ground 
that the City's relocation track record for the Stage I project had 
been poor. HUD set a maximum relocation workload of 300 families 
for the Stage II project. GX 1071.13; 1078.4. In response, the 
City embarked on a vigorous campaign to find and approve sites for 
family housing. Joining in the effort was the newly formed

-26-



Yonkers Urban Renewal Agency ("YURA").— / As in previous years, 
however, community opposition proved to be a major stumbling block.

In the months after HUD rejected the City's initial Stage 
II urban renewal application, the need for more public housing as a 
source of relocation housing, and the problem of persistent 
community opposition to sites proposed for such housing, were 
frequent topics of discussion in meetings held among City agencies 
and with the federal authorities. See generally GX 1078. In one 
meeting, the Mayor was asked to explain the nature of the City 
Council's objections to two Southwest Yonkers sites (one between 
Stanley and Riverdale Avenues and another on Culver Street). GX 
1078.3. The Mayor replied that the two ward councilman involved 
"feel that their wards are being declared 'blighted areas' and they 
are not too happy about it because it will affect the voting." Id.

A subsequent meeting in April of 1965 among George 
Piantadosi (the acting director of YURA), Philip Pistone (the 
City's Planning Director), and Emmett Burke (Secretary-Director of 
the MHA) yielded a list of twelve possible sites for public 
housing. GX 1078.8.— / In an apparent attempt to deflect 
potential opposition to the sites, it was agreed that a press 
release would be issued listing the sites but identifying them 
merely as "sites under discussion," and that no individual would be 
identified on record as supporting specific sites. Id.

The anticipated opposition came to pass the following 
month. The MHA submitted eleven sites (nine from the joint list 
plus two others) to the Planning Board and the City Council. GX 
1078.12; 1078.21.— / The three East Yonkers sites on the list as

-27-



well as two sites in the overwhelmingly white Nodine Hill area of 
Southwest Yonkers prompted letters and petitions in opposition from 
area residents, civic associations, and (in the case of the two 
East side sites in the twelfth ward) from the ward councilman, 
Nicholas Benyo. GX 1078.15; 1078.17-19; 1078.23; 1078.26-28. 
Councilman Benyo protested to the Planning Board that the areas 
"still [had] not recovered from the heavy invasion of apartment 
buildings" there and that "[a]ny further concentration of 
population would lead to a rapid deterioration of the entire area." 
GX 1078.15.

As the Planning Board and City Council were preparing to 
act on the sites. The New York Times published a story on the 
controversy, describing at some length "the split between suburban 
conscious East Yonkers and urban conscious West Yonkers." GX 
1078.16. The article reported that previous projects had been 
"built in slum areas, reinforcing what planners call socio-economic 
ghettos," and quoted one resident of East Yonkers as saying that 
her family had "saved for years to move out of the city," and that 
"now they want to put right next door everything we tried to get 
away from." Id. Another East Yonkers resident was reported to 
have explained that it wasn't that she didn't believe in racial or 
social or economic integration ... but [that] those people from 
Yonkers would feel so out of place here ... it would not be fair to 
them." Id.

The Times article was cited to City officials in a letter 
from the pastor of a Southwest Yonkers church, who said that its 
reference to reinforcing socio-economic ghettoes "sums up our

-28-



argument" against the placement of more subsidized housing in the 
downtown area of Southwest Yonkers. GX 1078.22. "Basically," the 
letter declared, "this is out and out discrimination not only 
against negroes, but against lower-income whites as well." Id.; 
see also GX 1078.14,

In May of 1965, the Planning Board voted to disapprove 
all of the sites except four in Southwest Yonkers. GX 1078.28. The 
only comment recorded in the Planning Board minutes with respect to 
the two twelfth ward sites in East Yonkers was that Councilman 
Benyo and his constituents were opposed to the site. Id. One week 
later, the City Council referred all eleven sites to its committee 
on housing, where they remained until April of the following year. 
GX 1078.32.

In December of 1965, with the matter still in committee, 
Emmett Burke, the Secretary-Director of the MHA, sent a memo to the 
City Council asking for a decision on the sites. The Council, in 
turn, referred Burke's memo to YURA, which replied merely that 
public housing was indeed needed for relocation housing, but that 
it would "not presume to recommend for or against any of the sites 
selected." GX 1078.43. Nevertheless, at a meeting held the same 
day with a citizen's advisory committee, George Piantadosi, the 
acting director of YURA, criticized the City Council for "doing 
nothing" about public housing, and one of the committee members 
suggested that the committee undertake its own site investigation. 
GX 1078.44.

In February of 1966, Burke wrote to the City Manager, 
asking again "for serious and immediate consideration" of the

-29-



eleven possible housing sites. GX 1078.48. He explained that 
there were eighty-seven unused housing units from a previous 
reservation that might still be available to the City, but that he 
could not justify attempting to retain or expand the reservation 
(as would be necessary if future relocation needs were to be met) 
unless housing sites were approved and ready for development. Id.

Two months later, the Council's Housing and Urban Renewal 
Committee finally acted, recommending the same four sites that the 
Planning Board had approved eleven months earlier. GX 1078.51. 
Recalling the pattern of previous years, the sites not recommended 
by the committee were in areas of the City that were overwhelmingly 
white, and the four sites recommended were in areas of the 
Southwest that were, or were rapidly becoming, heavily minority. 
GX 1225.42; 1225.44.

The committee's recommendation was strongly criticized 
by the Yonkers Council of Churches, the NAACP, CORE, and a member 
of the Yonkers Human Rights Commission. The groups noted that all 
four sites were located in the "core" or "ghetto" area of the City, 
and they suggested that the selection represented acquiescence on 
the part of the Council to the "phenomenal pressure" put on it by 
the residents of other areas of Yonkers and "portend[ed] a greater 
ghettoization of those neighborhoods whose 'powerless' and 
'voiceless' residents could not generate the same kinds of 
'pressures' as could the other residential neighborhoods where" 
sites had been proposed. GX 1078.58, 1078.60, 1078.62, 1078.64.

In addition, the groups noted that three of the sites 
were densely occupied and presented serious relocation problems,. GX

-30-



1078.58, 1078.60, 1078.64, an assessment with which YURA concurred. 
GX 1078.66. The groups gave qualified support to the fourth site 
(on Hawthorne Avenue) as representing the "lesser of evils," but 
urged the City to adopt a policy of "scattering" its public housing 
throughout the City. GX 1078.58, 1078.60, 1078.62, 1078.64.

The following month, in May of 1966, the City Council 
voted to approve the Hawthorne Avenue site and to refer the other 
three back to committee. GX 1078.62; GX 1078.63. However, due to 
an apparent breakdown of communication between the Council and YURA 
on one side and the MHA on the other, the site was not submitted to 
HUD for another several months.

When the site finally was submitted, HUD declared it to 
be unacceptable. The City was advised by the Regional 
Administrator in HUD's New York office that the Hawthorne/Riverdale 
site was "marginally feasible" and presented problems with respect 
to the "potential concentration of minority groups." GX 1078.94. 
The HUD official urged consideration of alternate sites, especially 
"scattered sites." Id.; 1078.106. In reply, YURA wrote that an 
"evaluation of family incomes, size, and other criteria indicate 
that a very well balanced racial mix will result from relocating 
just our urban renewal relocatees" and that "the fears you express 
about the creation of a 'racial ghetto' will depend largely on the 
admission practices of the [MHA]." GX 1078.98. Two months later, 
in November of 1966, HUD formally notified the City that it would 
take no immediate action on the Hawthorne/Riverdale site and asked 
for the submission of alternate sites. See GX 1078.111.

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Later that month, amid public calls by the Chamber of 
commerce and the yonters Economic Development Corporation for the 
approval of sites for relocation housing so that the City's urban 
renewal plans would not be delayed any further, GX 1078.113, 
1078.115, 1078.116, 1078.120, the City Manager, as Chairman of
y„BA, wrote to the City Council stressing the importance of publrc 
housing to the future of urban renewal in the City and "urgently 
requestlingl" i-ediate reexamination of all the sites in committee 
as well as consideration of expanding the Hawthorne/Riverdale site.

GX 1078.118,
At one YORA meeting. City Manager Adler expressed the 

hope that at least one more site -  namely, the Bronx River Road 
site in East Yonkers -  could be approved, but noted that 
-telverytlme a site comes up a councilman will say -not in my
ward.- GX 1078.117. Later in the meeting, it was announced that

u The task was to beYURA would undertake its own search for sites.
handled by a subcommittee of YURA'S Citizens Advisory Committee 
,-CAC"), who. according to Plantadosi, were "going to war to get

sites for us."
The CAC subcommittee's efforts resulted in a list o 

nineteen sites scattered throughout the City. GX 1078.124. None, 
however, was developed for public housing, nor does it appear from
the record that any serious study was given to the list. The only

a have had was to further publicize the effect the list appears to have naa was
. • ovisted to the placement of publicdegree of opposition that existed to r

housing in any heavily white area of Yonkers.

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The existence of the CAC list first came to public 
attention after a joint meeting among the MHA, YURA, the Yonkers 
Commission on Human Rights, and the YURA-CAC, at which City 
officials debated whether the list should be released to the press. 
GX 1078.125; 1078.39. According to press accounts, which dubbed 
the list the "secret renewal sites," two councilmen, Alfred Del 
Bello and Jesse Eisen, expressed concern about the pressure that 
would be brought to bear on councilmen unless the public was 
educated about the need for site selection on a city-wide basis. 
GX 1078.125; 1078.126; 1078.128. "[C]ouncilmen," Eisen warned, 
"will have to have a great deal of intestinal fortitude." GX 
1078.125. Del Bello added that he did not think the City's 
councilmen had "sufficiently strong shoulders to consider sites no 
n*3tter what time of year" it was. Fear was reportedly expressed by 
several speakers that "the public is not yet ready to accept the 
federal government's plan for racial and economic integration on a 
citywide basis." Nonetheless, Councilmen Eisen and Chema expressed 
support for the concept of scattered sites, with Eisen quoted as 
saying "Let's not scatter them in Southwest Yonkers." id.

The CAC list was obtained and published by the press a 
few weeks later, causing, in the words of YURA members, "a great 
deal of alarm in the community." GX 1078.133.

The Taxpayers Organization of North East Yonkers invited 
George Piantadosi, the acting director of YURA, to speak to the 
group about the CAC list. Instead, Piantadosi wrote to the group, 
reassuring them that CAC's role was solely an advisory one, that 
the consideration of any of the sites was still in early stages.

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and that a "thorough study" of each was called for and would 
include consideration of the "attitude of the local coimnunity 
toward accepting public housing." GX 1078.138. The list of 
nineteen sites was passed on to the City Manager in January of 1967 
with the CAC's recommendation that five be given further study. GX 
1078.135; 1078.136. There is no indication in the record that the 
CAC's recommendation was followed or that the list was put to any 
other use.

On the same day that the CAC list was published, the City 
Council's housing committee referred seven sites to the Council —  
all but three of the remaining ten from the MHA's original list. GX
1078.129. Two of the sites not referred were East side sites (one 
on Texas Avenue and another on Sweetfield Circle) that had since 
been acquired in whole or in part by private developers. GX
1078.130. Six of the sites referred to the Council were in 
Southwest Yonkers; one (a site on Bronx River Road) was in East 
Yonkers.

As in previous years, announcement of the sites prompted 
opposition from civic associations and, with respect to two sites 
on Garfield and Fillmore Streets (essentially the same RAMP area 
proposed in 1956), a mass protest rally. GX 1078.144; 1078.145. 
The opposition was noted at a YURA meeting, with Planning Director 
Pistone observing that people "all adopt the same attitude; don't 
put public housing in my backyard," and that they were "not too 
receptive to explanations." GX 1078.144.

In February of 1967, the City Council held a meeting to 
vote on the seven sites. As the debate preceding the vote made

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clear, the Council faced a choice between continued placement of 
public housing in and around downtown Yonkers, in some of the 
City's most heavily minority areas, or acceptance of the concept of 
scattering public housing throughout the City so as not to 
reinforce economic and racial segregation. In its votes, the 
Council chose the former. The worst of the sites in terms of 
immediate proximity to other projects (a site on Palisade Avenue 
and Carlisle Place) was rejected, but so too were the two RAMP 
sites in the overwhelmingly white Nodine Hill area of Southwest 
Yonkers as well as the only site left on the list that was in East 
Yonkers (the site on Bronx River Road). Another Southwest site 
(between Stanley and Riverdale Avenues) was deferred to a future 
meeting, and two sites on Croton Terrace —  a heavily minority area 
in the Southwest neighborhood known as the Hollow —  were approved. 
GX 1078.151; 1078.152. Two weeks later, the remaining Southwest 
site (also in an area with a high minority population) was also 
approved. GX 1078.155. The three sites approved were the same 
ones that had been recommended ten months earlier by the Council's 
housing committee but vigorously opposed on the grounds that they 
presented serious relocation problems and would lead to a further 
overconcentration of public housing in one area of the City.

During the debate preceding the Council's vote, it was 
noted that the federal authorities were urging "scattered site" 
housing, and that the City's urban renewal funds depended upon 
producing acceptable sites for relocation housing. GX 1078.152. 
Several councilman, as well as the newly elected Mayor, James 
O'Rourke, spoke in favor of scattered site housing generally and

-35-



the Bronx River Road site in particular. Id.; Tr. 790-91 (Wilson); 
Tr. 7227-30 (King) . One councilman stated that the site "does seem 
to fit what everyone has been looking for," while another declared 
"we have an obligation to take advantage of it." GX 1078.152. The 
ward councilmen for both the Bronx River Road and RAMP sites 
strongly opposed their selection, however, and the final vote on 
the sites (taken after a recess during which the Council went into 
closed session) was eight to five against the Bronx River Road site 
and eleven to two against the RAMP. Id.; Tr. 7229-30 (King).

A few weeks after the February vote, the City's 
Congressional Representative, Richard Ottinger, publicly attacked 
the sites that had been approved, contending that they would 
"promote racial and social segregation." GX 1078.158. In May of 
1967, HUD notified the City that it would not approve the sites 
that had been submitted, GX 1078.163, with that notification, the 
City's Stage II urban renewal project officially came to a halt.

E. The Nature and Effect of the Recurring Pattern of Public 
Opposition

There is little room for doubt that the pattern of 
community opposition described above significantly affected the 
City's site selection for public housing. Despite repeated 
statements by City officials about the urgency of the City's need 
for public housing, nine years passed before the City approved a 
sufficient number of sites to make use of a single year's 
allocation of public housing units. During that time, the City 
more than once risked the loss of its funding allocation, and in 
any event, forfeited the opportunity to apply for additional

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allocations of federal assistance. Nor did the pattern of delays 
and disapprovals cease even when HUD made clear that the City's 
urban renewal programs would not go forward unless acceptable sites 
were approved and submitted.

In addition, it is clear that the delays were not 
occasioned by a lack of suitable sites. The minutes of agency 
meetings repeatedly quote city officials and other on-the-scene 
observers as stating that the chief source of the City's site 
selection difficulties was community opposition a view that is 
corroborated by the record of approvals and disapprovals for the 
years in question.

City Council approval was rarely given in the face of 
organized opposition to a proposed site by area residents or civic 
associations. Indeed, over the course of eighteen years and the 
consideration of dozens of sites, it was given only twice. The 
first such approval (a site on Frederic Street in 1951) took 
fourteen months to obtain, carried by a single vote, and became a 
campaign issue in the next election. For reasons unspecified in 
the record, the site was subsequently abandoned. See GX 1058.

The second and only other site which the record shows to 
have been approved despite organized community opposition is the 
site of Loehr Court, a 108-unit senior citizen housing project on 
Western Avenue in Southwest Yonkers (one of the three sites 
approved by the Council in 1958). The Park Hill Residents 
Association sent a letter to the City Council announcing its 
unanimous opposition to the Western Avenue site, and according to 
the testimony of former ward councilman William Tully, some 300 
residents of his ward attended the site selection meeting. Former

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councilman Tully testified that he had been "irritated" to have 
been "put on the spot" in front of his constituents, and he 
suggested that at least part of the reason for his failure to 
persuade the Council to reject the site was the fact that he was a 
Republican on a heavily Democratic Council. Tully Dep. 14-15, 17, 
25-26.

Whatever the reason, the Western Avenue site clearly was
the exception rather than the rule. With respect to nine of the
twelve other sites approved by the Council for public housing

%

during the eighteen years in question, there is no evidence 
whatever of organized opposition by area residents or civic 
associations.— '̂ With respect to two (Stanley/Riverdale and 
Hawthorne/Riverdale) , there is some indication that the sites may 
have been opposed in the past, but no evidence of current 
opposition. With respect to the last (Lake Avenue), opposition 
arose only after the site had been approved, and the site was 
subsequently abandoned. In contrast, the numerous sites that were 
the subject of organized community opposition were either 
disapproved by the Council, referred to and left in Committee, or 
for other reasons, never the subject of formal action by the 
Council.

Plaintiffs suggest that the reason for the City Council's 
extreme responsiveness to community opposition was the ward system 
under which the City Council operated, and in particular what 
plaintiffs contend was an unofficial "councilmatic veto power" held 
by ward councilman over matters of importance affecting their 
wards. While a description of the phenomenon as a "veto power" 
suggests a greater formality and certainty than appears to have

-38-



obtained, it is indeed clear from the evidence for these, as well 
as subsequent years, that the support of the ward councilman 
generally was, and was perceived to be, critical to a site's 
prospects for approval by the City Council. Numerous past and 
present City officials, including councilman themselves, testified 
to the existence of a strong tendency to defer to the views of the 
ward councilman. Alfred Del Bello, for example, who was a 
councilman for 1966 to 1969 and Mayor of Yonkers from 1970 to 1973, 
testified that the ward councilman was "normally allowed to lead 
the issue" in matters affecting his ward, and that as a result City 
officials tended to consult the ward councilman to determine 
whether or not his support could be obtained for a project. Tr. 
1178-79. Without that support, according to Del Bello, "it was 
usually much more difficult to get approvals out of the Council." 
I^; see also Tr. 1180-86; 1192-93. Walter Webdale, the Director 
of YURA from 1967 to 1971, likewise acknowledged that it was 
"difficult to conceive" of getting Council approval for a 
subsidized housing site without having the support of the ward 
councilman, and Morton Yulish, the City's Director of Development 
from 1971 to 1974, characterized that fact as an "unwritten rule" 
which was "very clear to all who worked with the City Council." 
Webdale Dep. 186; Tr. 858-60 (Yulish); see also Tr. 987-88 
(lannacone); 1666-70 (O'Rourke); 1869 (Schneider); 2813-14 
(Arcaro).

In addition, numerous counciImembers acknowledged that 
their own position with respect to sites proposed for subsidized 
housing in their wards was, in turn, strongly influenced by the

-39-



views of their constituents. Some explained it on the basis of a 
belief that people had a "fairly good right to determine" what they 
would see when they looked out their windows. See, e.g., Tr. 1676- 
78 (O'Rourke). Others suggested, more pragmatically, that they 
viewed their prospects for re-election as depending upon it. See, 
e.g., Cola Dep. 80-81; Tr. 992-93 (lannacone); cf. Tr. 1874-77 
(Schneider); Webdale Dep. 484. And there is abundant evidence 
that their constituents encourage that view. See, e.g., Tr. 1197-98 
(Del Bello); P-I 106-26 (GX 1063.13).

It is true, as the City has emphasized, that a number of 
the sites rejected during these years were disapproved by the 
Planning Board as well as the City Council, or were never presented 
to the Council after their disapproval by the Planning Board. But 
even with respect to those sites, there is reason to conclude that 
community opposition, and its effect on the City Council, played a 
major role in their rejection. With respect to the influence of a 
Planning Board disapproval on a subsequent City Council vote, the 
record suggests that the Council's reliance on the views of its 
Planning Board was selective. When a Planning Board disapproval 
was accompanied by community opposition (as it was, for example, in 
the case of sites on St. Nick's Oval and Bronx River Road) , the City 
Council tended to likewise disapprove the site. When a Planning 
Board disapproval was not accompanied by community opposition, 
however, (as in the case of the School Street site in 1958), the 
City Council was willing to override even a strong vote of 
disapproval by the Planning Board.

Moreover, the Planning Board itself was not immune from

-40-



lobbying by area residents or their representatives. At the first 
sign of community opposition, a council committee was formed to 
meet with site selection agencies and to "let the public know that 
the Council [had] an interest" in site selection. GX 1204.4. Ward 
councilmen also regularly appeared at site discussion sessions of 
the MHA and the City Planning Board or wrote to the agencies to 
report on the reaction of the neighboring community to a proposed 
site. e,q,, GX 1058.36; 1204.4; 1204.13; 1059.6; 1063.8; 
1078.15. In addition, area residents and civic associations also 
contacted the Planning Board and other site selection agencies 
directly. Copies of resolutions and petitions in opposition were 
routinely sent to the Planning Board, and groups also appeared in 
person to speak against particular sites. See, e.g., GX 1058.6; 
1059.1; 1059.7-1059.9; 1060.14; 1060.38; 1069.10; 1078.17-1078.19.

To be sure, the record contains evidence that planning 
criteria —  that is, factors such as cost, zoning, the physical 
suitability of the site, future plans for the area in general or 
the site in particular, availability and adequacy of public 
facilities such as schools, shopping, transportation, etc. —  were 
regularly discussed by the MHA and the Planning Board and sometimes 
stated as the basis for their decisions. The record also contains 
abundant evidence, however, that these agencies were acutely aware 
of the requirement of Council approval, and of the unlikeliness 
that the approval would be forthcoming if there was significant 
community opposition to a site. See, e.g., GX 1059.2; 1059.4; 
1059.14; 1062.1; 1062.4; 1063.4; 1063.8; 1063.10; 1063.17; 1064.19; 
1064.20; 1078.110; 1078.117; 1204.7; 1204.18. Moreover, with

-41-



respect to some sites (for example, the Bronx River Road and 
Texas/Georgia Avenue sites proposed in 1965) no reasons apart from 
community opposition were offered at the time of their disapproval 
by the Planning Board. GX 1078.28.

In addition, the pattern of Planning Board approvals and 
disapprovals further suggests that the presence or absence of 
community opposition was an important factor in the decisionmaking 
process. With respect to East side sites, most notably, the 
Planning Board's decisions (like the City Council's) follow a 
general pattern in which the sites that were disapproved were ones 
that prompted opposition from area residents and civic 
associations, see GX 1059 (Coyne Park, Raybrook Road, Midland 
Avenue); GX 1060 (St, Nick's Oval, Ridgeview Avenue); GX 1078 
(Bronx River Road, Sweetfield Circle, Texas/Georgia Avenues), and 
those that were approved were ones for which there is no evidence 
of such opposition. GX 1063 (old School 1 site, Martin Ray 
Place). The single exception to the pattern was the Smart Avenue 
site, which Planning Director Pistone characterized as "ideal," and 
which the Planning Board approved notwithstanding the objections of 
the ward councilwoman. But the site ceased to be an exception when 
it came up before the Council itself, where it was rejected.

The sites that generally escaped community opposition, 
and thus successfully emerged from the site selection process, are 
heavily concentrated in the downtown area of Southwest Yonkers. 
See Appendix A. Indeed, more than half of the total public housing 
units built during those eighteen years (713 units out of a total 
of 1,365) were concentrated in two adjacent Southwest projects

-42-



(Schlobohm Houses and Walsh Gardens) which in turn were only a few 
blocks away in one direction from the 800 units of public housing 
contained in Mulford Gardens and Cottage Place Gardens (the two 
projects built in the 1940's), and a few blocks away in the other 
direction from the 278 public housing units contained in Calgano 
Homes (the School Street project approved in 1958). Thus, by 1963, 
more than 80% of the City's existing or planned public housing was 
located within a several-block area of Southwest Yonkers. Yet, 
despite this extreme concentration of public housing units in one 
area of the City, the additional sites that were approved in 1966 
and 1967 (but rejected by HUD) were all located near that same 
area.

The City has sought to explain this extreme concentration 
as the result of a plan to use public housing to rebuild the 
Southwest Yonkers. In this regard, the City places chief reliance 
upon a series of Master Plan Reports published by its Planning 
Department in the late 1950's and 1960's. C-1504; C-1505; C-1506. 
Those reports, however, do little more than confirm an undisputed 
fact; that Southwest Yonkers was the area in greatest need of 
urban renewal. The reports in no respect recommend concentrating 
the City's public housing in and around the downtown area of 
Southwest Yonkers. In fact, the Yonkers Central Business District 
(CBD) Study, published in June of 1959, expressed concern about the 
"lower family income concentrations in the immediate periphery of 
the CBD." C-1503. And the Land Use and Community Facilities Plan, 
published in June of 1961, specifically called for a mix of income 
levels to be represented in the residential portion of the

-43-



Southwest's redevelopment. C-1505.
The City has suggested that its planners viewed public 

housing as the only mechanism available to the City to initiate 
redevelopment on slum clearance sites and thus pursued a plan of 
using public housing as the "seed investment" to attract the other 
development contemplated by the Master Plan. But that argument is 
not supported by the record.

Neither the Planning Department's recommendations, nor
its approvals, were limited to sites in Southwest Yonkers. Indeed,
the first and only consistent proponents of the view that public
housing should be restricted to the "blighted areas" of Southwest
Yonkers were not City officials at all, but civic associations
protesting sites that had been proposed in their own neighborhoods.
See, e.q., GX 1058.6; 1058.102; 1069.11. In contrast, the Planning
Department's first, and apparently only, detailed position paper on
public housing for this period —  a "proposed methodology for site
selection" issued in May of 1950 —  targeted neither the Southwest
nor areas of blight as the only appropriate sites for public
housing. GX 1058.16. In fact, one of the specific sites
recommended in the report —  a site at Palmer Road and Stratton
Street —  was in an unblighted (and overwhelmingly white) area of
Central Yonkers just west of the Saw Mill River Parkway. Id.; see
also GX 1225.41; C-1805A. For reasons that are not apparent from

26/the record, the site was never pursued.— '
Nor were many other of the Planning Department's initial 

or subsequent recommendations adopted. As noted earlier, for 
example, the 1950 report recommended that public housing projects

-44-



be limited to 250 units so as to "reduce their impact" on the 
surrounding area -  a recommendation that was abandoned by City 
officials when it became apparent that the City was suffering from 
a shortage of "politically suitable" sites which was at least as 
serious as its need for public housing. Cf^, 1062.4.
Likewise disregarded was the Planning Board’s strong opposition to 
the selection of sites that would prevent construction of a 
proposed arterial route which the planners considered to be
critical to the eventual revitalisation of the City’s CBD.

nor, certainly, can the sites selected in 1965 and 1966
be explained on the basis of any plan to use public housing to 
revitalise the Southwest. The chief criterion for sites during 
those years was "universally accepted" to be that the sites be 
vacant so as to add to the City’s supply of relocation housing and 
avoid any further reduction or loss of federal urban renewal 
assistance. GX 1078.67: see also, e ^ ,  GX 1078.8. Yet, vacant 
and properly soned sites in East Yonkers were rejected in favor of 
four southwest sites which posed significant relocation problems of 
their own and which were rejected on that ground (among others) by 
h o d . Par from contributing to efforts to revitalise Southwest 
Yonkers, the City’s choice of sites brought those efforts to a

halt.
It is, in short, difficult to discern any plan at work in 

the Citys site selection process during these years, except for an 
apparent determination to avoid, at virtually any cost, a 
confrontation with community opponents of public housing.

There is also considerable evidence to suggest that this

-45-



community opposition was based, at least in part, upon the race of 
the potential occupants of public housing. Indeed, with respect to 
the years from 1965 to 1967 (as will be the case with respect to 
future years as well) there is scarcely any basis for doubt that 
race was a factor in the opposition. City officials themselves 
publicly identified the issue before them as being whether the 
residents of Yonkers were "ready" for the economic and racial 
integration being urged upon the City by HUD, by groups such as the 
NAACP and the Council of Churches, and by one of YURA's own 
citizen's committees —  the Relocation and Minority Housing 
Subcommittee of the Citizens' Advisory Committee. generally GX
1078; ^  also HOUSING III.D supra. M o r e o v e r ,  Alfred Del Bello, 
one of the City officials closely involved in those events, 
acknowledged at trial (as did other City officials involved in the 
events of subsequent years) that his constituents equated public 
housing with minorities, and that race was "definitely" a factor in 
much of the opposition that arose during the site selection 
process. Tr. 1194-97 (Del Bello); see also Tr. 7237-38 (King).

The evidence for the years preceding 1965 is decidedly 
less dramatic. But even with respect to those years, there is 
considerable evidence suggesting that race was at work in the 
sustained community opposition that existed to the placement of 
public housing in any but a few areas of the City. As an initial 
matter, the pattern of opposition itself strongly suggests a racial 
influence. Sites proposed in East or Northwest Yonkers, or the 
heavily white areas of Southwest Yonkers, almost invariably 
prompted strong community opposition. Sites proposed in the more

-46-



heavily minority areas generally did not.— In addition, the 
exceptions to the pattern tend to reinforce, rather than weaken, 
the inference to be drawn. The few sites in white areas that 
prompted little or no opposition were for senior-citizen or middle- 
income (Mitchell-Lama) housing, whose occupants were more likely to 
be heavily white. See, e.g., Tr. 878-80 (Yulish); 994-95 
(lannacone) . Indeed, the distinction between low-income and 
middle-income housing is particularly well illustrated by the 
remark of a City official recorded in the minutes of a YURA meeting 
in 1966. Amid a discussion of the need to prompt the City Council 
to take action on the public housing sites that were still buried 
in committee, George Piantadosi observed that it was now possible 
to place public housing tenants in Mitchell-Lama units, and that 
the way to get the Council to produce sites for public housing was 
to tell it that they planned to do so. GX 1078.44; see also GX 
1078.23; 1078.66.

To be sure, there is little evidence of overtly racial 
statements by opponents of public housing. And former councilman 
Edward O'Neill, who strongly and successfully opposed three sites 
proposed in his east side ward in 1953, testified that he believed 
race played no role in site selections because "nothing was ever 
expressed for the record to indicate that it did play a role." 
O'Neill Dep. 102. The former councilman went on to acknowledge, 
however, that racial opposition was "certainly ... nothing anybody 
would put into words." Id. at 189.

Nor is direct evidence of a racial influence wholly 
lacking. At least one group of citizens expressed concern in 1958

-47-



>about havin, to "absorb tbe overflow fro™ Harle™ or Puerto Rico." 
p-l 106-26 (GX 1063.13). Rnd durin, at least one Planning Board 
.eetin, that san.e year tbe Secretary-Director of tbe MHA expressly 
stated that some of tbe sites under discussion could be expected to
prompt objections on grounds of race. GX 1063.8.

Moreover, beginning with the very first sites proposed, a 
common theme in the objections has been concern about declining 
property values, the "deterioration" of the neighborhood, the 
undesirable "element- attracted by public housing, and insistence 
that public housing properly belonged in "blighted areas," not 
■residential communities." See HODSIMG III.B through III.D suE£a. 
such objections in and of themselves may not be sufficient to 
indicate that a racial influence was at wort. However, when those 
objections are combined with a pattern of opposition that also 
suggests a racial influence, it becomes significantly harder to 
accept the argument that the concerns were purely economic.

It becomes harder still when, as here, there is also 
evidence that although YonXers had, until the mld-1960's, a 
relatively small and stable minority population, GX 1225.1, rt was 
very much a racially divided city. In this regard, it rs
noteworthy that Runyon Heights was not created or
black enclave merely by chance or -associatlonal preferences that 
were unrelated to racial discrimination. Recording to the City's 
long-time Planning Director, Philip Pistone, the neighborhood was 
founded on a large tract of land owned by a state senator who 
regularly brought busloads of residents from Harlem there for 
weekend picnics, during which he would auction off parcels of the

-48-



land. Tr. 9508-09 (Pistone). As the neighborhood developed, any 
contact with the overwhelmingly white Homefield area immediately to 
the north was severely discouraged when the Homefield Neighborhood 
Association purchased and maintained a four-foot strip of land as a 
barrier between the streets of the two neighborhoods. Tr. 2740-42 
(Downes); see also SCHCX5LS IV.A.3.a infra. And the objections 
raised by Runyon Heights residents to the first site proposed there 
for public housing in 1956 make clear that the area was perceived 
to be the only one open to blacks in East Yonkers. See GX 1060.12, 
1060.16. While this history does not, of course, warrant any 
general presumptions about the subsequent acts of City officials, 
it does markedly increase the significance of the fact that the 
only site selected for family public housing which is not in 
Southwest Yonkers is in Runyon Heights.

Similarly note^rthy are the circumstances surrounding 
the construction of Cottage Place Gardens, the City's second public 
housing project. In apparent response to concerns expressed in the 
late 1930's by community leaders about the difficulties blacks were 
encountering in obtaining decent, and affordable housing in the 
private market, the City resolved to build a public housing project 
"for Negroes" and set about finding a suitable site on which to do 
so. See GX 1053. Various sites were rejected on the ground that 
the level of minority concentration there was not sufficiently 
high, and the site eventually selected in 1940 was in one of the 
most heavily minority areas of Southwest Yonkers. GX 1225.41; P-I 
360.

The significance of Cottage Place Gardens is twofold.

-49-



First, the circumstances surrounding its construction suggest that 
private market discrimination played a major role in maintaining 
the pockets of minority concentration which existed in Southwest 
Yonkers through the mid-1960's (when those pockets of concentration 
began to expand significantly), and that City officials were well 
aware of that discrimination. And in this regard, what is 
suggested by Cottage Place Gardens is decisively confirmed by the 
credible testimony of various Yonkers residents, as well as that of 
the City's former Director of Relocation, and by contemporaneous 
City documents describing the extreme difficulty that minorities 
had in finding relocation housing when they were displaced by urban 
renewal. See, e.q., Tr. 428-56 (Smith); 527-29 (Gibson); 2333-43 
(Stores); 1933-95 (Trommer); GX 1068.1; 1068.3-1068.4; 1068.11; see 
also GX 1068.5.

In addition, with respect to the actions of City 
officials, the history of Cottage Place Gardens illustrates what 
would otherwise be merely a matter of common sense: that City 
officials were fully capable of comparing the relative minority 
concentration of various parts of the City, and of the Southwest, 
and then choosing a site that would best preserve existing patterns 
of segregation.

Once again, it bears emphasis that the history of Cottage 
Place Gardens does not, of course, automatically taint any 
subsequent actions taken by the City. However, with respect to the 
extreme degree to which the City's subsequent site selections in 
fact conformed to community pressures, and and the extreme degree 
to which those pressures in fact followed a racially identifiable

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pattern, the history of Cottage Place Gardens —  together with the
other evidence presented regarding private market discrimination
and its acknowledged effect on minority relocation opportunities —
strongly diminishes any likelihood that those phenomena were merely
coincidental and unrelated to an intent to preserve existing

29 /patterns of segregation.— '

IV. THE RIVERVIEW PERIOD
In sharp contrast to the preceding eighteen years, the 

period from 1968 to 1972 was a highly productive one for the 
development of subsidized housing in Yonkers. Sites were approved 
for fifteen subsidized housing projects for families (totalling 
2,647 housing units> and two subsidized housing projects for senior 
citizens (totalling 290 housing units) . Most of the sites were 
approved during the years of 1970 and 1971.̂  ̂ All seventeen sites 
were in Southwest Yonkers.

It is clear from the record that this productivity was 
attributable in large part to a series of conscious decisions on 
the part of City officials to concentrate, at least for the 
present, on sites which were "politically feasible." It is equally 
clear that sites outside of Southwest Yonkers remained politically 
infeasible because of continuing opposition to subsidized housing 
on the part of area residents and civic associations —  an 
opposition based, at least in significant part, upon fear of an 
influx of minorities into what were (and remain today) 
overwhelmingly white neighborhoods.

s\



A. Overview of Projects Approved
During the years in question. City officials largely 

abandoned reliance on the construction of public housing as a 
relocation resource, and turned instead to the subsidized housing 
programs known as S 221(d)(3) B.M.I.R. and S 236 housing. Under 
these programs the housing was constructed, owned, and operated by 
not-for-profit sponsors rather than a local housing agency. The 
sponsors received a low-interest mortgage that was subsidized and 
often insured by HUD, and were required, in return, to observe 
rental and income-limit schedules established by HUD* The 
guidelines were targeted for moderate-income households, but 
additional rental subsidies were available to make some or all of 
the units accessible to low-income households as well. Since the 
projects were required to be self-sustaining, tax abatements from 
the local government were generally needed in order to make the 
projects financially feasible.

All fifteen of the projects for families approved during 
this period were S 221(d) (3) B.M.I.R. or S 236 projects. Eight 
were sponsored by private non-profit or limited-profit groups; the 
remaining seven were sponsored by the New York State Urban Develop­
ment Corporation ("UDC”), a public benefit corporation created by 
the New York State legislature in 1968 to participate in housing, 
commercial, and industrial development throughout the state.

The seven UDC projects were constructed pursuant to 
written agreements ("Memoranda of Understanding") between the City 
and the UDC, which were authorized by the City Council and executed 
on behalf of the City by the City Manager. Five of the seven

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projects (totalling 1,201 units of housing) were constructed 
pursuant to a single Memorandum of Understanding authorized and 
executed in July of 1970. The five projects are Frazier Homes (21 
units) at the intersection of Warburton and Lamartine Avenues; the 
Dorado (188 units) at the intersection of Warburton and Ashburton 
Avenues; Whitney Young Manor (195 units) near the intersection of 
Nepperhan and Ashburton Avenues; and Riverview I (454 units) and 
II (343 units) on Riverdale Avenue in the City's Stage II urban 
renewal area. The sixth UDC project, the 300-unit Seven Pines, was 
constructed pursuant to a Memorandum of Understanding approved in 
June of 1971 and is located on Glenwood Avenue at the foot of Trevor 
Park. The seventh and final UDC project, the 310-unit Parkledge 
Apartments, was constructed pursuant to a Memorandum of Understand­
ing approved in June of 1972 and is located on Yonkers Avenue, 
immediately west of the Saw Mill River Parkway.

The eight privately sponsored S 221(d)(3) and S 236 
projects for families, which were largely the result of recruiting 
efforts by the director and staff of YURA, see HOUSING IV.C.l 
infra, were constructed pursuant to City Council resolutions which 
granted the sponsor a substantial tax abatement in return for an 
agreement to give preference in both initial and subsequent rentals 
to persons displaced by urban renewal projects. The first such 
resolution was passed in January of 1968 for Jefferson Terrace, a 
64-unit project between Highland Avenue and Jefferson Street. GX 
1079.25. The next was Highland Terrace (96 units), a few blocks to 
the south, approved in July of 1968, C-453, followed by 10 Orchard 
Street (an 8-unit rehabilitation) in April of 1970, GX 1147.10;

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Messiah Baptist (130 units) on Highland Terrace in May of -1970, C- 
552; Waverly Arms (28 units) on Waverly Street in October of 1970, 
C-561; 164-170 Buena Vista Avenue (a 12-unit rehabilitation) in 
March of 1971, C-534; Cromwell Towers (317 units) at Locust Hill 
Avenue and Cromwell Place in July of 1971, C-747; and Jackson 
Terrace (181 units) on Riverdale Avenue south of Vark Street in 
November of 1971, C-509.

The remaining two projects approved during this period 
were senior citizen projects. Flynn Manor, a 140-unit public 
housing project on Riverdale Avenue at Post Street, was approved by 
the City Council in June of 1970, C-102; and Father Finian Sullivan 
Towers, a 150-unit Mitchell-Lama project, received preliminary 
approval in November of 1970, 6X 1099.11, and final approval in 
October of 1973. GX 1099.19.
B. The Continuing Opposition to Subsidized Housing in the City's 

Heavily White Neighborhoods
For sixteen of these seventeen projects, there is little 

or no evidence of community opposition prior to the project's 
approval by the City Council. Only Parkledge —  the final UDC 
project —  appears to have encountered any significant community 
resistance. There is, however, abundant evidence of continuing 
community opposition to subsidized housing in certain areas of 
Yonkers. The opposition is, as before, evident in the heavily 
white areas of the City, particularly those east of the Saw Mill 
River Parkway. The sites approved by the City are, without 
exception, west of the Saw Mill River Parkway, and with three 
exceptions, in the more heavily minority areas of the Southwest. 
GX 1225.44. The exceptions are the two senior citizens projects

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(both of which appear to have been heavily white since opening, C- 
1650), and Parkledge, which is located immediately west of the Saw 
Mill River Parkway, and which was chosen in response to insistence 
by HUD that the City select a site outside of areas of minority 
concentration.

As before, there is relatively little evidence that the 
residents of the City's heavily white areas expressly mentioned 
race as a reason for opposing subsidized housing in those areas. 
But see HOUSING IV.C.3 infra. Nonetheless, there can be no serious 
doubt that the opposition was, on the whole, racially influenced. 
Numerous former city officials —  including those directly involved 
in the selection of sites for subsidized housing during this period 
—  acknowledged at trial that they themselves believed the 
opposition they encountered was indeed based, at least in part, 
upon race. See Tr. 1193-97, 1378-79 (Del Bello); 875-80; 1066-67 
(Yulish); Webdale Dep. 487-88; 497-98; Tr. 983-86, 994-95 
(lannacone); 2792-94, (Arcaro); 1861-67 (Schneider).

As noted earlier, former East side councilman and Mayor 
Alfred Del Bello, testified that his constituents equated 
subsidized housing with minorities, Tr. 1197, and that "race was 
definitely a consideration in many of the demonstrations and 
visible opposition we had.” Tr. 1194.

Walter Webdale, the Director of YURA from the spring of 
1967 through the fall of 1971, testified more guardedly but to the 
same effect. Webdale acknowledged that the high level of emotion 
which prevailed at public meetings on subsidized housing was 
characteristic of issues that are "racially tinged." Webdale Dep.

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487-88; 497-98. "At many meetings, there was no logic left to the 
meeting," Webdale explained, "and so one would have to assume there 
was something more than the size of the street, the water, the 
sewer, etc." Id. at 498. Webdale also testified that there was 
"tremendous fear" about subsidized housing in Yonkers, which was 
overcome in "some areas" but not in others, id. at 336-37; 562, and 
he cited the approval of the Parkledge project in 1972 as an 
example of one case in which that fear was overcome. Id. at 338.

Morton Yulish, who was the Administrator of the City's 
Department of Development from the fall of 1971 to early 1974, and 
who in 1971 and 1972 led the efforts to obtain City approval for a 
site outside areas of minority concentration, testified that he 
encountered intense opposition to subsidized housing in East 
Yonkers; that he believed the opposition to be based, at least in 
part, upon race; and that he shared his views on the subject with 
Mayor Del Bello and City Manager Seymour Scher. Tr. 1066-67. 
Yulish testified that the issues raised "on the surface" were 
generally whether tax abatements should be granted outside of urban 
renewal areas; whether the "residential character" of single­
family neighborhoods should be changed; and whether the federal 
government should b^ permitted to control what would happen in the 
City's neighborhoods. Id. at 875. However, Yulish considered 
those issues often to be "smokescreens" for underlying racial 
fears, id. at 875-80, and he testified that at many meetings, the 
issue of race was "very thick in the air." Id. at 1066-67. "The 
bottom line," according to Yulish was that "there was no way that 
you could ... get public support, and then after the fact get

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councilman support, to build large-family, predominantly black 
assisted housing on the other side of the [Saw Mill River] 
Parkway," Tr. 879-80.

Both Yulish and Gregory Arcaro, a planner with the City 
from 1968 to 1970 and from 1972 to 1980, further testified that 
many of those who lived in East Yonkers had moved there from the 
Bronx and other areas of New York City, and had expressed strong 
fears that subsidized housing would lead to the same 
"deterioration" which they had sought to escape. Tr. 2792-93 
(Arcaro); 1064-67 (Yulish); see also McLaughlin Dep. 77-78. In 
addition, there is evidence of a widespread belief that part of the 
reason for the sharp rise in the City's minority population from 
the mid-196b's on was an influx of minorities displaced by the 
urban renewal that had taken place in White Plains. See, e.g., Tr. 
841-45 (Yulish); 1728-33 (O'Rourke). As a result, according to 
Yulish, some people in Yonkers equated urban renewal with "large 
infusions of minorities into a city ill-equipped to cope with 
them," Tr. 843, and they were uninterested in pursuing urban 
renewal unless they could "get even" by sending the people 
displaced by urban renewal back to White Plains. Id.

David Bogdanoff, a builder who worked closely with City 
officials on a number of subsidized housing projects during these 
years, characterized racially influenced opposition to subsidized 
housing as simply a "fact of life at that time" in most 
predominantly white communities. Tr. 10,224. Bogdanoff testified 
that there was a "tremendous fear" in East Yonkers (as in most

-57-



predominantly white communities) that placing subsidized housing 
there would result in an Invasion of minorities, and that -of 
course" it influenced where he could build. Tr. 10,224-25, see 
also 10,197-99, Logue Dep. 112. i„ fact, Bogdanoff volunteered 
that if he had attempted to tell the residents of any heavily white 
community that construction of subsidized housing need not result
in an invasion of minorities, he -would have been howled down with 
laughter." Tr. 10,197.

Pattern of Opposition and Apparent A r c . -------
The pattern of sites selected during this period, and the 

circumstances under„whlch they were selected, taken together with 
the testimony described above, strongly suggests that City 
officials likewise came to view racially Influenced opposition to 
subsidized housing in East Yonkers as a -fact of life,- and came to
view acquiescence in that fact of life as the price of urban 
renewal in Yonkers.

p^oiecS'" Campaign to Produce Privately SDonsor.d

When Walter Webdale arrived in Yonkers in April of 1967 
as the first permanent director of the Yonkers Drban Renewal 
Agency, he found the City's Stage IX urban renewal project at a 
standstill due to an Inability to provide relocation housing. For 
the past eighteen years, community opposition to public housing had 
seriously hindered site selection and had effectively ruled out 
sites in all but the most heavily minority areas of the City. Two 
months before Webdale's arrival, amid typically strong community



opposition to several sites proposed in East Yonkers, the City 
Council had rejected all proposed sites except for several located 
in the heavily minority downtown area of Southwest Yonkers. Those 
sites, in turn, were rejected by HUD one month after Webdale's 
arrival. See, HOUSING III.D supra.

Webdale's first task thus became the removal of the "road 
block" that the lack of relocation housing presented to the Stage 
II urban renewal project, GX 1079.4,, and he responded by 
undertaking an extensive campaign to bring about the construction 
of S 221(d) (3) and S 236 projects. See, e.g., GX 1079.8; 1079.17; 
1079.26; 1080.14; 1081.8; 1082.1; 1086.6; 1207.3; Webdale Dep. 
72, 89-90; Tr. 10,182-83 (Bogdanoff). Webdale and his staff at 
YURA located sites, solicited sponsors, and provided the sponsors 
with a broad range of technical and political support, including 
assistance in preparing applications to HTO, see, e.g., GX 1079.18; 
1082.2; 1083.9; and submissions to the City Council, see, e.g., 
GX 1079.34; 1079.53; 1083.32; planning and construction design, 
see, e.g., GX 1079.52; 1083.11; 1084,5; and meeting with 
federal, city and school officials, see, e.g., GX 1079.45; 1083.31; 
1083.32; 1084.1.^^ Although Webdale looked at sites outside of 
Southwest Yonkers, and although his office publicly stated that 
projects were expected to be built "on scattered sites in various 
parts of the city," GX 1079.61a, Webdale limited his efforts at 
recruiting sponsors for S 221(d)(3) and S 236 projects to Southwest 
Yonkers. See, e.g., Webdale Dep. 56-58, 137-38, 243-44,

So limited, site selection and approval proved far less 
difficult than in previous years. Although the minority and other

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community groups continued to press for scattered-site housing, see 
HOUSING IV.D.3 infra, and although concerns continued to be raised 
about the increasing concentration of subsidized housing in the 
Southwest, see HOUSING IV.D.4 and 5 supra, the sites designated for 
the S 221(d) (3) and S 236 projects prompted little apparent opposi­
tion from area residents (indeed, some were actively supported by 
area residents, see HOUSING IV.D.3 infra), and they were approved 
without incident by the City Council.

2. The Candeub & Fleissiq Survey and the City's 1970 
Memorandum of Understanding with the UPC

In 1969, while the campaign to produce privately 
sponsored projects was underway in the Southwest, a citywide vacant 
land survey, jointly commissioned by the City, the Yonkers Chamber 
of Commerce, and the ubc,^ was made pubfic. The result, as in 
previous years, was Immediate and apparently effective opposition 
from the residents of East and Northwest Yonkers. The survey was 
summarily abandoned, and sites in the downtown area of Southwest 
Yonkers were designated soon thereafter for five subsidized housing 
projects (totalling 1,200 units) to be sponsored by the UDC.

The survey in question arose as part of the City's 
efforts to persuade the Otis Elevator Company, one of the City's 
largest employers^ to remain in Yonkers. Otis had indicated that 
it needed either to expand its existing facilities or relocate 
elsewhere, and in 1968 the City asked the newly created UDC for 
assistance in its efforts to retain Otis. C-579.

Among the areas in which the City sought assistance was 
in the relocation of some 1,000 predominantly minority families 
from the riverfront area designated for the Otis expansion. Id.;

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GX 1096.47. To that end, the UDC, the City, and the Yonkers Chamber 
of Commerce hired the consulting firm of Candeub & Fleissig to 
identify "available sites within the City for the construction of 
low and moderate income housing ... [with] special attention ... to 
the potential development of open land sites.” C-592.

In May of 1969, Candeub & Fleissig produced a list of 
ninety-eight vacant sites in Yonkers, and a ranking of those sites 
according to their feasibility for the construction of subsidized 
housing. GX 1096.50; P-I 150-80. Twenty-two of the ninety-eight 
sites were in Southwest Yonkers; the remaining seventy-six were 
scattered throughout East and Northwest Yonkers. GX 1225.43. With 
the assistance of Planning Director Philip Pistone, eleven sites 
were designated for further study. Tr. 9768, 9872 (Pistone); GX
1096.60.

Word of the Candeub 6 Fleissig survey quickly reached the 
City Council. Alfred Del Bello, who was at that time the 
Democratic candidate for Mayor as well as the tenth ward 
councilman, called upon Walter Webdale "to supply our local news 
media with a map of all proposed sites or an explanation of why they 
are being kept secret. GX 1096.56.

On Jun»^ 5„ the local press published a description of 
eleven sites, and re{k>rted that the list had been obtained from a 
map in YURA's offices which bore the legend "Sites architecturally 
feasible for low and middle income housing." GX 1096.60. Four of 
the sites were in, or on the border of. Southwest Yonkers; the 
remaining seven were spread across Northern Yonkers. GX 1225.43;
1096.60.

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Publication of the list created an uproar in Yonkers. 
See, e.q., Tr. 9870 (Pistone); 1703 (O'Rourke), GX 1096.98. 
Adding to the concern was the knowledge that the UDC's state 
charter gave it the power to condemn land and override local zoning 
ordinances, thus potentially removing control over site selection 
from local bodies such as the City Council. Tr. 1703 (O'Rourke).

On June 10, Mayor James O'Rourke issued a statement in 
response to "recent articles in the press relating to 'scattered 
site housing,' stimulated by public officials for unworthy 
political reasons and calculated to pander to public fear and 
agitation." GX 1096.63. The Mayor emphasized the importance of 
the Otis expansion project to Yonkers, and explained that "[a]s in 
all projects such as these, to break the bottleneck of initial 
relocation, several sijtes of decent . housing ̂ ^will be required 
outside the project areas." Id.

The Mayor added, however, that no site proposals had, as 
yet, been made, and indicated that in determining site feasibility, 
"profound consideration" would be given to "maintaining the 
integrity and character of neighborhoods”; "maintaining the 
integrity of property values"; and "preserving the integrity of 
needed parks and recreation lands.” Id. The Mayor closed his 
statement with the assurance that public hearings and discussions 
would be held before any sites were selected. Id.

A petition in opposition to the sites located in 
Northeast Yonkers was sent to the Mayor, the City Council, and the 
Planning Board. GX 1096.65. The grounds for opposition listed in 
the petition were that subsidized housing projects would have a

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detrimental effect on property values and "could blight the areas"; 
would violate existing zoning laws; would take away needed park and 
recreational lands; and would overtax school and transportation 
facilities. Id. The petition called for "public hearings ... on 
notice” before any action was taken on the sites, and declared in

-‘5closing that:
It is reliably reported that these sites and 
the others mentioned in The Herald Statesman of 
June 5, 1969, are part of a proposed program 
for use of state funds to transfer N. Y. City 
residents into suburbs. If that is advisable it could be accomplished better by not creating 
conflict with or downgrading existing estab­
lished resident;^! areas. ....

Id.
A meeting^was tĵ ld on June 12 between City Qfficials and 

the UDC. The following, day, the press reported that according to 
Mayor O'Rourke, the UDC had said that it would refrain from 
imposing specific sites on Yonkers, but would "pull out” of the 
renewal project unless "scattered sites” were selected. GX 
1096.66.

Two days later, some 500 residents of the fifth ward in 
East Yonkers appeared a.% a meeting with City officials to protest 
the sites identified ,in their area. GX 1096.71; Tr. 1711 
(O'Rourke). According to press accounts, the City officials in 
attendance included fifth ward councilman Andrew O'Rourke; Mayor 
O'Rourke; and Mayoral candidate Del Bello. All three sought to 
reassure the audience that the matter of site selection would be 
given careful study by the City Council, and that use of the UDC's 
power to override zoning laws would be resisted. Id. Del Bello, in 
particular, called upon the UDC to leave the selection of sites to

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the City Council in order to "put the citizens' minds at ease." id. 
The meeting also resulted in the formation of a Citizens Committee, 
led by Councilman O'Rourke, to study the sites identified in the 
Candeub & Fleissig study.

On June 17, the UDC sent a telegram denying that it had 
threatened to pull out of the renewal project if scattered housing 
sites were not selected and emphasizing that "only upon the City's 
recommendation and request" would UDC become involved in construct­
ing housing anywhere within the City of Yonkers. GX 1096.74.

Several days later. Mayoral candidate Del Bello also 
pubicly disputed the Mayor's version of the June 12th meeting, 
saying that in fact the UDC had offered to conform to the City's 
wishes. GX 1096.78. Del Bello further criticized the Mayor's 
"divisive attitude,” and suggested that to move the City forward, 
"we must stop threatening the people and start understanding and 
implementing their wishes." Id.

Del Bello offered as alternatives to scattered site hous­
ing the acquisition of surplus land along the arterials then being 
constructed; leased relocation housing in existing structures;

J  ..

acquisition of parcels made vacant by fire and demolitions of 
substandard buildings; and the use of the "checkerboard strategy" 
to relocate individuals within an urban renewal area. GX 1096.100.

On July 10, a meeting was held among the City Council, 
representatives of the UDC, the Yonkers Economic Development 
Corporation ("YEDC") (a local business group), and the UDC's 
Citizens Advisory Committee ("CAC") to discuss sites for relocation 
housing. GX 1096.89. According to press accounts, twelve sites

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were proposed by the YEDC as possible sites for relocation housing, 
"touching off a passionate debate over racism." Id. Three of the 
five "primary" sites were reported to be located "deep in Yonkers' 
ghetto areas" and were criticized as such by the CAC Chairman, the 
Rev. William Gallagher; Vice Chairman Kenneth Skinner; and CAC 
member Msgr. John Harrington. Id. At the same meeting, a 
representative of the UDC reportedly reiterated that the agency 
"will not do anything the City does not want us to do" with respect 
to housing sites, and that it would not intervene in the City's 
internal disputes. Id.

In September, the Westchester County Board of Supervisors 
adopted a resolution, introduced by the Yonkers supervisors, 
calling for representatives of.' tbencounty to introduce and lobby 
for state legislation to curb the UDC's power to override local 
zoning laws. GX 1096.103. The resolution recited that the UDC had 
proposed subsidized housing for sites in Yonkers where it would 
"comjpletely destroy the residential character of the adjacent 
neighborhoods" and violate the City's zoning laws. Id.

Internal UDC memoranda circulated in September of 1969 
indicate that Mayor O'Rourke asked the UDC to "ease off" on the 
issue of scattered site housing until after the November elections, 
and that the UDC CAC was eager to issue a statement in support of 
scattered site housing but had, to date, been dissuaded by UDC 
officials from doing so. GX 1096.101; 1096.105; 1096.106.

On September 29, the UDC sent Mayor O'Rourke a letter 
which notified him that the Otis Elevator Company had rejected the 
UDC's expansion proposal (thus largely ending the UDC's involvement

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with Otis) , but which offered to go forward with the housing 
component of the proposed riverfront renewal area. GX 1096.107. 
The letter added that:

The Citizens Advisory Committee is presently 
examining low and moderate income housing sites, and could be in a position to recommend 
a number of sites throughout the city shortly.
I understand also that the City Council has 
been seriously reviewing scattered site hous­
ing locations throughout Yonkers. We are 
available to discuss the housing solutions with you and other city officials at any time.

Id.
No further action appears to have been taken on the

Candeub & Fleissig sites in the moilths preceding the election. In
November, Councilman Del Bello defeated incumbent Mayor O'Rourke in
the mayoral race. Also defeated was incumbent third ward Councilman
William Schneider, who ascribed his defeat, in part, to his support
of scattered site housing. Tr. 1874-77; 1909.

Del Bello promptly abandoned the Candeub & Fleissig
survey. As he explained at trial:

I thought [the Candeub & Fleissig survey] was 
the wrong way to go, that it would build far more resistance on the part of the public to 
any housing whatsoever, and that if I had 
succumbed to the same position that Mayor 
O'Rourke- had adopted, I could pretty well - assure the people of Yonkers we would never 
produce any housing. I was dedicated to 
producing housing, and I had to find a political course that would allow us to get it 
constructed. And the course I chose was to not 
shotgun the issue, be very site specific, not 
to tilt at windmills, to use another 
expression, but to deal with sites that were realistic, that we could get approved and to 
get on to the process of building housing.

Tr. 1288-89.

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By April of 1970, three months after Mayor Del Bello had 
taken office, Webdale and City Manager Seymour Scher had negotiated 
a draft agreement with the UDC to build 1,400 units of housing at 
four locations. 6X 1088.8. All four were in Southwest Yonkers, 
within a several block radius of the Getty Square area. GX 
1225.44. Three months later, a final version of the Memorandum of 
Understanding (calling for 1,200 units at three of the locations) 
was formally presented to the YURA Board and approved that same 
day. C-612. The following day, it was approved by the City Council 
as well. C-613.

One of the sites involved was the City's Stage II 
(Riverview) urban renewal area, which had originally been planned 
for commercial re-use, but which (over the strong objection of the 
City's Planning Director Philip Pistone) had been redesignated for 
combined commercial and residential re-use shortly after Walter 
Webdale's arrival in 1967. See HOUSING IV.D.l infra. Plans had 
begun soon after for the joint construction of a school and 
subsidized housing complex on the Riverview site, see SCHOOLS

- I 'IV.A.2.b infra, with the housing intended to serve the dual 
function of providing a source of relocation housing for those 
displaced by urban renewal projects, and encouraging a return of 
middle-income whites into the area. See, e.g., GX 288; 1088.6. 
The July 1970 Memorandum of Understanding with the UDC doubled the 
number of housing units previously scheduled for the site. Compare 
GX 1088.6 with GX 1088.8 and C-6112.

The other three projects approved in the Memorandum — the 
Dorado, the Frazier Homes, and Whitney Young Manor —  were intended 
to provide relocation housing for the (predominantly minority)

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population displaced by the Otis Expansion and by urban renewal in 
one part of a Southwest neighborhood known as the Hollow. S e e , 

e . q , , Webdale Dep. 172, 231-32; Lenaz Dep. 73, 232-33, 251; Tr. 
10,451-52 (Yost); C-606; GX 1097.14; 1144.4; 1120.16.

Neither the site selection for the three new projects, 
nor the doubling of the number of units scheduled for the Riverview 
site, appears to have been put to any public discussion during the 
rapid negotiation and extraordinarily rapid approval of the Memo­
randum of Understanding with the UDC. Nor were the matters submit­
ted to the Planning Board for review. Tr. 9771, 9822 (Pistone).

3. The Glenwood/Ridqe Avenue Project and Rockledqe Heights
During the same months in which the July 1970 Memorandum 

of Understanding was.under negotiation, Walter.Webdale began meet­
ing with a group known as the Clergy of Yonkers ("COY") and 
developer David Bogdanoff (both.,, of whom were involved in the 
construction of other subsidized housing projects in the Southwest) 
regarding a proposal for the construction of a subsidized housing 
project for families near Glenwood and Ridge Avenues, at the 
northern border of Southwest Yonkers. The blocks immediately 
surrounding the proposed site, as well as those to the north and 
west, were overwhelmingly white, but there were a number of blocks 
with a 20-50% minority population to the Southeast. GX 1225.44; Tr. 
10,191 (Bogdanoff). The project was intended to be a source of 
relocation housing for the Nepperhan Arterial extension, federal 
approval of which had been delayed due to a lack of an adequate 
relocation plan. GX 1207.3; 1099.8.

A developer, builder, architect, and attorney were hired, 
and (as he had with respect to previous projects) Bogdanoff absorbed

- 68-



the cost of the preliminary analysis. Tr. 10,190. At least $18,000 
worth of work was completed, and COY and Bogdanoff met with Webdale 
and Scher in the spring of 1970 to present their plans for the 
project. Id. at 10,191-92.

Bogdanoff testified that soon thereafter, Scher reported 
to him that there was "strong neighborhood feeling" against the 
project, led by the pastor of a large Catholic church in the area. 
Id. at 10,192. The church group announced that it planned to use the 
site for senior citizens housing, and Scher asked Bogdanoff to "help 
him out" in the matter. Id. Bogdanoff testified that he suggested 
to COY that it "withdraw graciously," and that he be allowed to 
absorb the loss "rather than to develop a principle fight which 
would get no place and would just tremendously increase the serious

• V' ' •racial antagonisms that existed within the City.” Id. Webdale 
likewise had reason to believe the church group's opposition to the 
family project was racially based. He testified that he had been 
told that members of the group had said that they "feared an influx 
of blacks into the neighborhood” would result if the project were 
built. Webdale Dep. 184-85; 579-581.

COY acceded to Bogdanoff's request to withdraw, GX 
1099.11; 1099.12, and with the assistance of MHA Secretary-Director 
Emmett Burke, the church group received Planning Board and City 
Council approval for its proposed senior citizens project within a 
matter of months. GX 1099.9; 1099.11. The project was named in 
honor of the pastor of the church. Father Finian Sullivan, and 
opened in 1973. Charles Cola, who in 1971 was elected councilman of 
the sixth ward (in which the project was located) testified that he

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supported the project, and that if he had not, he "wouldn't have 
been elected," Cola Dep. 81. The occupancy data in evidence for the 
project describes it as 100% white. C-1650.

Fear about an influx of minorities was also expressed by 
area residents (and reported in the press) with respect to a 
proposed subsidized housing project known as Rockledge Heights. The 
site in question was in a predominantly white area of far Southwest 
Yonkers, on the bed of the old Putnam Railroad line near Wolfe 
Street.

In the spring of 1970, the site was proposed for an 85- 
unit S 236 project to be used for relocation housing. GX 1105.1; 
1105.2; 1105.5. Webdale kept the ward councilman, Dominick
lannacone, informed of the progress of the plans, GX 1105.2; GX 
1105.3; noted the likelihood of "objections by the community

—  - J i i v '  * rconcerning the usual public facilities, schools, etc." GX 1105.3,
•* • 1and asked that if the councilman had any comments, to please let him 

know "during these early phases." Id.
Councilman lannacone initially supported the project, Tr. 

990 (lannacone)^ but then, as he explained at trial, he "got some 
flak on it." Id. at 991. Some area residents complained to him 
about the loss of the railroad bed as a parking facility. Id. 
Others who knew him better approached him privately and said they 
didn't want the housing because they didn't want any blacks there. 
Id. at 991-92. lannacone testified that he was, at the time, a new 
councilman, and wouldn't have been elected the next time "with all 
those people against me," id. at 992-93, and that he accordingly 
told the City Manager he was opposed to the project, citing his

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constituents' concern about the loss of their parking facility. Id. 
at 992. lannacone then attempted, unsuccessfully, to change the 
zoning for the site from multi-family to S-100, a highly rectrictive 
single-family zoning classification. GX 1105.10.

In late summer of 1971, the City Council voted seven to 
six to approve the project but then immediately voted unanimously to 
reconsider the vote and referred the matter to the Real Estate 
Committee, which was chaired by lannacone. GX 1105.14. A press 
account, the accuracy of which was confirmed by lannacone at trial, 
reported that the site had been "buried” in lannacone's committee, 
and that he had "vowed not to let the project out of his committee 
until he had the council votes to kill it." GX 1105.16; see also Tr. 
933 (lannacone). The article also reported that-'the project had 
"created opposition among' area residents, mostly white, who are 
fearful that black and Pû e*rto Rican families would move in." GX 
1105.15. lannacone's position was reported to be tfiat he was now in 
favor of senior citizen housing for the site but against housing for 
families because parking, traffic, and local services would be 
strained.” Id. No further vote was‘taken on the site by the City 
Council, id., and lannacone again tried (but again without success) 
to have the zoning of the site reclassified from" multi-family to 
single-family. GX 1105.21; 1105.23.

lannacone acknowledged that his publicly stated reasons 
for opposing the project were pretextual, and that his opposition in 
fact was in response to his constituents* racially influenced 
opposition. Tr. 991-993, 1526-29. The words "low-income," 
lannacone explained, connoted "poverty, minorities, blacks, Puerto

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Ricans or Hispanics." Id. at 994. Senior citizen housing created 
less opposition^ according to lannacone, so long as the words "low 
income" were avoided. Id.

4. Seven Pines
During that same summer, HUD notified the City that its 

continued receipt of urban renewal funds would be conditioned on the 
approval of a site for subsidized housing that was outside the 
City's areas of minority concentration. See HOUSING IV.C.5 infra. 
As a result, scattered site housing once more became (as it had been 
during the time of the Candeub & Fleissig survey) a highly public 
issue.

The site of the Seven Pines project, located in the third 
ward on the nor,them border of Southwest Yonkers, was not considered 
by City officials to be a "scattered site," but., in January of 1972, 
James Walsh, the n̂ awly elected councilman for the third ward, sought 
to rescind the City's agreement with the UDC to build the project, 
arguing that it could lead to scattered site housing.

The Seven Pines site was among^ those listed in the 
original April 1970 draft agreement with the UDC but was dropped 
from the first round of UDC projects apparently out of concern on 
the part of City officials that too much tax abatement not be 
granted at once. The site was considered again by the UDC in April 
of 1971 along with two east side sites (the Robin Hill Day Camp site 
and a site at Mile Square and Tuckahoe Roads), GX 1098.15, and in 
June of 1971 the City Council authorized a memorandum of 
understanding with the UDC for the construction of 300 units of 
subsidized housing on the Seven Pines site. C-753.

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The Seven Pines site was considered by City officials to 
be in a deteriorating neighborhood. A "mass exodus" of whites was 
believed to have occurred over the preceding decade, GX 1119.85, 
and City officials expressed the hope (as they had with respect to 
Riverview as well) that the Seven Pines project would "stabilize" 
the area and bring middle-income whites back to Southwest Yonkers. 
Id.; GX 1119.44? GX Tr. 901, 903-04 (Yulish); Webdale Dep. 434. 
The City Council's approval of the proposed project was unanimous. 
C-753.

A number of months later, however, in January of 1972, the 
project came before the City Council again to obtain a waiver of 
several aspects of the City's Building Code and local zoning 
requirements with respect-^to height. Public hearings were held, and 
the newly elected ward- councilman#^James Walsh, vigorously opposed 
the project, ^seeking^ firstr (unsuccessfully) to rescind the UDC 
agreement and then seeking to defeat the zoning and building waivers 
that were required for the project to go forward. See, e.g., GX 
1119.8; 1119.19; 1119.62.

Walsh's campaign against the project lasted some three 
months during which time he assailed the height of the building, its 
likely effect o ie  area schools^ and traffic, the "windfall” the 
developer had received in selling the property to the UDC, and the 
loss of tax revenue created by an "unnecessary" tax abatement for a 
middle income building. Id. The arguments were characterized by 
Webdale as "the typical litany of issues.” Webdale Dep. 432-33.

Walsh also argued, however, that Seven Pines represented a 
threat that a site on the east side of the City would be developed

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next, GX 1119.8, 1119.20, and, in the words of a UDC memorandum 
summarizing the situation, that the "defeat of this project by a 
unified front would guarantee that no scattered site developments 
would occur." GX 1119.20.

In response. City and UDC officials discussed the 
usefulness of meeting with Walsh to assure him that no additional 
sites would be chosen without consulting the ward councilman, GX 
1119.21. In addition they publicly made statements to that effect, 
GX 1119.8, and privately considered whether the UDC should, if 
necessary, invoke its override powers. GX 1119.10.

When Walsh's efforts to stop the project failed, he 
introduced a resolution addressed to "̂ the majority of 
councilmembers*'Who supEX)rted Seven Pines and who, "in opposition to 
the objedtions of community organizations throughout the City," have 
"expressed the"concept of supporting subsidized ' housing ... 
throughout, the City." GX 1119.62. The resolution called on those 
counciImembers to

submit to the agenda of the City Council, at 
the next regularly stated Council meeting, a 
firm RieSOlUtion giving one sitev located with­
in the confines of the Ward they represent, on which they confirm' their ‘ support for subsi­
dized housing, through either URA or UDC auspices','allowing them to build with complete ̂ 
impunity of zoning laws, confirming their 
willingness to give tax abatement on such 
structures and re-confirming their support of 
the Seven Pines concept as being the proper 
housing concept for the future of the City of 
Yonkers.

Id. The Council voted 8 to 5 to refer the resolution to the Real
31/Estate Committee, from which it appears never to have emerged.— '

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5. Parkledqe
Three months after the end of Walsh's campaign against 

Seven Pines, and in response to a year of steady pressure from HUD 
to approve a site for subsidized housing that was outside the 
City's areas of minority concentration, the City Council approved a 
site on Yonkers Avenue immediately west of the Saw Mill River 
Parkway.

Since at least mid-1970, HUD had been actively 
encouraging the City to adopt a "balanced housing program."— ^ In 
July of 1971, it determined that stronger action was required. 
During that month, Grace Malone, the Director of the Fair Housing 
and Equal Opportunity Division of HUD'a New York Area Office, wrote 
a memorandum concluding that, the City of ,Yonkers' relocation 
housing programs wete in violation of the civil rights laws and 
recommended disapproval of the City's Year II NDP application (the 
major source of federal urban renewal funds for the City). P-I 
180-249. The basis of Malone's conclusion and recommendation was 
the City's failure to provide relocation housing opportunities for 
minorities outside of areas of minor^.ty concentration. Id.

As a result of Malone's memo, Malone and other HUD 
representatives held.a series of meetings with City officials in 
July through November of 1971. The City was advised to submit 
substantiation of its "alleged efforts to achieve balanced site 
selection in Yonkers”; a submission was made; and HUD officials 
concluded at an internal meeting that the "program management staff 
should immediately Impress upon the applicant the urgency for 
presenting sites for development outside Southwest Yonkers." P-I

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180-256.
On September 3, 1971, Walter Webdale and City Manager 

Seymour Sober met with HUD officials and identified eight sites 
outside of areas of minority concentration that "could be pursued." 
Id. Four were in East Yonkers (including the Robin Hill Day Camp 
and Mile Square/Tuckahoe Road sites which had appeared in the April 
1971 draft agreement prepared by the UDC); two sites were in 
Northwest Yonkers; one was just north of the Seven Pines site; and 
the remaining site was in far Southwest Yonk^s. Id.

In November, Malone revised her recommendation regarding 
the City's NDP application to conditional approval, with the 
condition being that the next housing_site selected by the City be 
one of the eight sites^identified by Scher and Webdale. Id. This 
specific condition apparently was never communicated to City 
officials, but it was made clear that HUD would re;quire a site 
outside the City's areas of minority concentration, and that the 
HUD officials involved preferred a site East of the Saw Mill River 
Parkway. Tr.840-411, 863-65; 1128-33 (Yulish); see also, e.q., 
Cola Dep. 147-51;,,^Tr. 1004-06 (lannacone) .

The task of binding an acceptable site fell principally 
to Morton Yulish, who had come to Yonkers in October of 1971 as the 
first Administrator of the City's newly created Department of 
Development.^'^ Yulish testified that he had frequent discussions 
with Mayor Del Bello and City Manager Scher about scattered site 
housing, and that they told him, in essence, that they had been 
unsuccessful in achieving it, and that it was his turn now. Tr. 
845-46. In addition, Yulish testified-that Del Bello and Scher

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explained that City Council approval would be required for any 
site, and that it would be hardest to obtain for sites East of the 
Saw Mill River Parkway "given the lack of support for such housing 
from those constituencies and the Council's historic lack of ... 
guts ... in dealing with these kinds of unpopular matters." Id. at 
849-50.

Former Mayor Del Bello testified more diplomatically, but 
to the same effect. He explained that East side councilmen were 
subject to a "terrible amount of pressure" from their constituents 
to oppose subsidized housing proposals, and that "in almost every 
case the councilman was forced to respond to that pressure." Tr. 
1197-98. Del Bello also confirmed that the opposition of the East 
side councilman had-been effective. All ofthe City's subsidized 
housing projects were located in the Southwest, he testified, 
because "counciljnen wouldn't, approve sites in any other areas. 
These were the only sites we could.get approved," Id. at 1193.

In describing his efforts to find a scattered site, 
Yulish testified that "quite honestly we were looking for the most 
politically doable, route. The first way to do that was to find a 
site outside of racial impaction, but not wholly on the east side, 
which would have been the preferred route, but we did not limit 
ourselves to that. We went out and looked at sites all over 
Yonkers." Id. at 865.

Yulish testified that on some of the trips he was alone, 
"just doing reconnaissance," that on some he was with the field 
staff to analyze suitability, and that others "were political 
excursions" in which Yulish, Scher, and on occasion Planning

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Director Pistone, would go and "test the political waters with the 
particular councilmen." Id. at 866-67. Pistone's testimony with 
respect to his dealings with Yulish (and indeed his testimony with 
respect to all "political" matters) was characterized by a 
professed inability to recollect, and an obvious unwillingness to 
discuss, the subject. Pistone testified that he "vaguely" recalled 
being asked by Yulish whether the political obstacles with respect 
to certain East side sites were surmountable, and that he "might 
have said" that they weren't surmountable. Tr. 9897-98 (Pistone).

Yulish testified that from the fall of 1971 to the spring 
of 1972 he spoke, at least in general terms, with all of the East 
side councilmen, and attended a dozen or more meetings with 
neighborhood associations that he described as unforgettable 
because of the hostility he encountered. Id. at 865-67; 1060-64. 
In addition, he testified that his efforts to secure support for an 
East side site were particularly hampered by the^activities of what 
he termed the "hit squads” or "truth squads," whose active members 
included third ward Councilman James Walsh and Angelo Martinelli, 
the Republican candidate ini the 197r mayoral campaign. Tr. 899- 
901. According' to Yulish, these groups would visit the 
neighborhood associations,/sometimes at the same time that' Yulish 
and other City officials did, other times separately, and vocally 
oppose the administration's housing program, arguing, for example, 
that allowing the DDC to build in Yonkers was a violation of home 
rule, or that the City should be trying to attract industry, not 
building housing. Id. Also involved in what Yulish characterized 
as the "constant attack" and attempts to keep the issue of

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subsidized housing "at a boiling point" was the Yonkers Home News 
and Times» a weekly paper published by Mayoral candidate 
Martinelli's brother. Id.

Soon after the November election. The Herald Statesman, 
the City's daily newspaper, published the results of a poll among 
new councilmembers on the issue of scattered site housing. GX 
1098.70. Five were opposed; two were in favor (Councilmen Eisen 
and Chema from Southwest Yonkers); and six declared themselves 
undecided (among them newly re-elected Mayor Del Bello). 
Councilman Mancusi was quoted as saying he would support scattered 
site housing only if there were one new project in each ward. 
Councilman lannacone stated that he would vote against any new 
housing proposal' unless it had the support ' of the-'community. 
Councilman O'Rourke declared- himself "irrevocably against 
scattered housing," stating that "[a]s a social proposition it is 
found lacking. Most of these developments will be filled with 
people from outside Yonkers." Id.; see also Tr. 1728-29 
(O'Rourke).

In December'of 19̂ 71, Yulish reported to HUD that he would 
continue his efforts to obtain approval for a subsidized housing 
site outside of areas of minority concentration but candidly warned 
that it would have to be "in an area with surmountable political 
obstacles outside of the areas of concentration." GX 1098.81.

Yulish testified that particular efforts were made to 
persuade twelfth ward Councilman James McLaughlin to support a site 
on Texas Avenue. McLaughlin, Yulish explained, was someone willing 
to talk to them, who wouldn't "immediately go to the press ...

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saying they are conniving in my ward to build housing and I stopped 
it Tr. 869, and that he was also "probably the gutsiest one 
of all who might be willing to take the heat." Id. at 871.

Yulish testified that he. City Manager Scher, and 
McLaughlin visited the site at dusk to avoid attracting attention, 
and that he and Scher basically "pleaded" with McLaughlin to 
consider how critical the Otis expansion project was to the 
City,and to see that "there were larger issues here than just the 
political heat of a group of neighborhood people screaming and 
yelling for their narrow self-interest." Id. at 869-70. City 
Manager Scher, according to Yulish, "bent over backwards" to offer 
McLaughlin and other ward councilmen benefits such as street work 
or a small park that they^could use to,persuade their constituents 
to accept a subsidized housing project. Tr.. 870771.

According to Yulish, McLaughlin.asked for time to "test 
the waters," saying he wanted to do it but knew it was "going to be 
hell." Tr. at 871. McLaughlin acknowledged at trial that his 
eventual answer to Yulish wa^,that it would be "political suicide" 
to support the site. McLaughlin Dep. 98-99; see also Tr. 871. 
(Yulish) .

Yulish also testified to meetings with eleventh ward 
Councilman John Hanney, second ward Councilman Peter Mancusi, and 
fifth ward Councilman Andrew O'Rourke. In each case, according to 
Yulish, the councilmen set up meetings with neighborhood 
associations, which Invariably proved to be hostile, and following 
which the councilman deferred to the wishes of his constituents. 
Tr. 865-66, 871-78, 880-81.

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Councilman Hanney, according to Yulish, just "sat back 
and watched us get crucified." Id. at 872.— ^ Similarly, Yulish 
testified. Councilman Mancusi arranged an unforgettably "chaotic" 
meeting with the Lincoln Park Taxpayers Association regarding 
possible use of the old Lincoln High School site, and then asked 
Yulish after the meeting "What do you want me to do? I don't 
control them. They elect me." Tr. at 881; see also Tr. 865.

Yulish*s encounter with Councilman O'Rourke concerned
the Robin Hill Day Camp site in far Northeast Yonkers, which had
been mentioned several times in recent years as a possible site for
subsidized h o u s i n g . Y u l i s h  testified that like the other east
side councilmembers, O'Rourke suggested that they "take it to the

$
neighborhood,” and that he would go by what his constituency told 
him. Tr. 877. Yulish testified that the meetings were "hostile" 
and "highly emotiotially charged,” and that afterwards O'Rourke 
simply told him that he ”didn't think it would work.” Tr. 877.

Former councilman O'Rourke disclaimed any recollection 
of the meetings with Yulish, and testified that he believed he 
would have remembered such meetings if they had occurred. Tr. 
1688-90. He did, however, acknowledge that not long after the time 
during which the Robin Hill site repeatedly arose as a possible 
site for subsidized housing, he changed his position on the use of 
the site for conventional multifamily apartments, and subsequently 
supported (for the first and only time in his eight years on the 
Council) the zone change needed to permit such a use. Tr. 1680-84; 
1690-93; 1726-27. O'Rourke also acknowledged that the developer's
proposal contained a restrictive convenant limiting the use of the

-fl-



property to luxury low-rise condominiums. Tr. 1690-93.
In the spring of 1972, Yulish invited the Regional 

Director of HDD's New York Area Office, S. William Green, to visit 
Yonkers. Yulish testified that he hoped Green would "jar the 
Council” into taking seriously its obligation to build housing 
outside of areas of racial concentration. Tr. 1139-41.

Green came to Yonkers in early April and told City 
officials that if the City did not build subsidized housing outside 
of its inner city areas, it would in effect be disqualifying itself 
from millions of dollars in federal redevelopment funds. Tr. 
1140-50 (Yulish); GX 1207.10; 1119.132. The clear substance of 
Green's message, according to Yulish»cwaa that "enough is enough in 
this particular area.? Tr. 1147^50. '̂ Yulish asked HUD to confirm 
in writing that the Otis expansion NDP grant weui conditioned upon 
approving a scattered housing site, GX 1119.130, and HUD replied 
that all of the City's urban reneweil funds would be cut off unless a 
scattered site was approved. GX 1119.32.

Shortly after Green's visit to Yonkers in early April, 
City officials and the UDC took action on plans for a 324-unit 
subsidized housing project that had been proposed by a developer 
several months earlier. C-778; C-780; C-781; C-783; C-784. The 
site of the proposed project was the so-called RAMP site on Yonkers 
Avenue next to the Saw Mill River Parkway. The site was on the 
border of the predominantly white neighborhood known as Nodine 
Hill, and had been proposed for public housing a number of times in 
the preceding decade but strongly opposed by area residents and 
Ward Councilman Moczydlowski. See HOUSING III.B and III.D.

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Unlike previous years, however, City officials were able 
to win Moczydlowski's support. A major reason for their success in 
doing so appears to have been the fact that many of Moczydlowski's 
constituents were employed by Otis Elevator Company and faced the 
loss of their jobs if the City forfeited its federal urban renewal 
funds for the Otis expansion. Tr. 885-86; 1013-14 (Yulish).

Nonetheless^ Moczydlowski expected, and in fact 
received, pressure to. oppose the project from his constituents. 
Tr. 1018 (Yulish). Councilman Cola described the public hearings 
on the project as so "volatile" that you were lucky "if you 
remembered your name after you left there." Cola Dep. 149. Yulish 
testified that the crowd "filled out into the hallways" at the 
hearings, with action on the,site deferred at least once in part 
because^of the Council's^ reluctaneice to act ."in the midst of this 
fury." Tr. 1022.

City o^iciala > met with Moczydlowski numerous times 
during the course of neighborhood and City Council meetings to 
"bolster his support for the project." Id. at 1019. Design 
changes were madetto respond .to,community concerns that the access 
route to the project not run through a single-family area, id. and 
the councilman was- not discouraged from., telling his predominantly 
white constituents that they would be given preference in the 
rental of the project. Tr. 1015, 2142-45, 2148-49.

The project was unanimously approved by the City Council 
in June of 1972. GX 1119.100. A short time later. Councilman 
Moczydlowski resigned his seat on the Council and accepted an 
appointment as City Clerk. Councilman Cola testified that it was

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commonly accepted that Moczydlowski's prospects for re-election 
were "not too great," and that his appointment as City Clerk was no 
coincidence. Cola Dep. 97-98.

The Parkledge project was offered to HUD as the City's 
"precedent toward creating greater mobility to minority families 
and individuals." P-I 180-281. In fact, however, Parkledge proved 
to be the City's last new construction subsidized housing project 
for families. Although the UDC continued for a time to have access 
to a sizable supply of S 236 funds (despite a nationwide moratorium 
imposed on the program in January of 1972), and encouraged the City 
to "take advantage" of those available funds, no new family 
projects were p u r s u e d G X  1120.59. In January of 1974, Angelo 
Martinelli' took, office as Mayor, having^ strongly advocated during 
his campaign:that the City impose its own moratorium on subsidized 
housing, Tr. 7432^33 (Martinelll), and no additional projects were 
approved for a number of years. When subsidized housing 
development for families resumed, it was initially limited to the 
rehabilitation of existing structures in Southwest Yonkers. 
Subsequently, the City agreed, at least in theory, to support the 
construction of subsidized housing for families in East Yonkers, 
but as late as 1982, the City Council had yet to support a specific 
site. S ^  HOUSING V infra.

D. The City's Explanations for its Confinement of Subsidized 
Housing to the Southwest

The City contends that its confinement of nearly 3,000 
units of new subsidized housing to Southwest Yonkers during this 
period occurred for reasons unrelated to any racially influenced

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community opposition to the placement of the housing elsewhere; and 
it has offered a number of arguments in support of that 
contention.— / Viewed in the context of the record as a whole, the 
arguments are not persuasive. Some are not supported by the 
record. Others are of marginal relevance. Still others suggest 
only that many of the City officials involved with subsidized 
housing during this period were otherwise well-intentioned 
individuals who accepted the constraints imposed by the racially 
influenced opposition to subsidized housing in East and Northwest 
Yonkers, but within those constraints, attempted to do as much good 
as possible. Whether taken singly or collectively, the City's 
arguments fail to alter the conclusion compelled by the record as a 
whole that the confinement of subsidized housing to Southwest

«fYonkers was, as Mayor Del Bello himself suggested, due to the fact 
that Southwest sites were the only ones that the City Council would 
approve. Tr. 1192-93.

1. Reliance on HUD's Express Directions 
The City first suggests that the decision to confine sub­

sidized housing to the Southwest was largely HUD's. In support of
tthat suggestion, the City points to the testimony of Walter 

Webdale, the City's Director of Urban Renewal from 1967 to 1971, 
who stated that the City's exclusive focus on the Southwest for 
subsidized housing was due, at least in part, to express instruc­
tions from HUD officials to build relocation housing in or near the 
City's urban renewal areas. Webdale Dep. 154, 156, 165-66.

However, there is little evidence to support Webdale's 
suggestion that HUD instructed the City to concentrate exclusively



on sites in the Southwest, and considerable evidence to the 
contrary. No other City official testified to having received, or 
heard of, such an instruction. No HUD official testified to having 
given such an instruction. Indeed, at least one HUD official 
expressly testified that the location of subsidized housing was for 
the locality to determine. Tr. 5612-13 (Lapadula). Nor has the 
City pointed to any written instruction from HDD either requiring 
or suggesting that only sites in and around ufban renewal areas be 
considered.-^^

To be sure, there was a very real economic advantage to 
be gained from choosing urban renewal land as the site for a 
subsidized housing project: the land could be sold to the 
developer at a greatly reduced price with the federal government 
subsidizing much of the price’ reduction. Tr. 5860-63 (Lapadula). 
That economic advantage'fialls" short of a formal restriction of 
subsidized housing to urban renewal areas. Nor could it even be 
argued to have operated as a ^  facto restriction since most of the 
City's subsidized housing projects were in fact not located within 
urban renewal areas.

Similarly, there is little dispute that HDD'policies 
over the years reflected changing views iihd'emphases, and that at 
least in the mid-to-late 1960's, there was a general concern about 
avoiding the charge made in earlier years that urban renewal too 
often Involved "black removal" —  that is, the clearance of an area 
of its largely minority occupants, with no provision made for 
relocation housing. See, e.q., Tr. 10,692-95 (Portman). In light 
of this general concern, it is reasonable to assume that HDD may

- 86-



have encouraged the City to put some of its relocation housing near 
the major urban renewal areas. Cf. Tr. 8698-704 (Kane). There is 
no basis for concluding, however, that HUD directed the City to 
locate all of its relocation housing in or near urban renewal areas 
—  particularly in light of the concern expressed by HUD as early 
as 1966, and steadily from mid-1970 on, about the segregative 
effects of concentrating all subsidized housing in the City's 
downtown area. See HOUSING III.D and IV.C.5, supra.

In addition, the contemporaneous actions of Webdale and 
other City officials further suggest that HUD did not instruct the 
City to confine subsidized housing to urban renewal areas or their 
immediate vicinity. Webdale acknowledged that he himself looked at 
sites that were removed from urban renewal areas, see Webdale Dep. 
58, 137, 479, and his office at least once publicly stated that 
after completion of Jefferson Terrace (the first privately 
sponsored subsidzed housing project), other projects would be built 
on scattered sites throughout the City. GX 1079.66. The City and 
the UDC also hired the firm of Candeub & Fleissig to survey the City 
and identify possible sites for relocation housing — a considerable 
waste of time and money if relocation housing were in fact limited 
to sites in and around urban renewal areas. Moreover, even 
assuming the unlikely proposition that Candeub & Fleissig somehow 
misconstrued its assignment, the furor that erupted when the survey 
was released could have been easily put to rest by announcing that 
HUD had directed relocation housing to be placed only in and around 
urban renewal areas. It seems highly unlikely that City officials 
would have forgone such an easy means of defusing community



opposition if, in fact, it had been available to them. Yet, 
recalling the pattern of previous years, the only apparent mention 
of restricting relocation housing to urban renewal areas was made 
by a representative of a Northeast Yonkers neighborhood group. See 
GX 1096.65.

Finally, we note that Webdale himself appeared to retreat 
somewhat from his broad statements about HUD's policy on relocation 
housing by acknowledging later in his testimony that HUD's 
instructions may have related only to the Stage II urban renewal 
area. Webdale Dep. 499-500.

However, even if limited to the re-use of the Stage II 
urban renewal area, Webdale*s testimony is still at variance with 
the record as a whole. Webdale testified that while the re-use of 
the Riverview urban renewal^area may have been a "local determina­
tion" in theory, the decision to have at least some residential re­
use in fact was made by HUDv Webdale Dep. 29-33, 588-90. According 
to Webdale, residential re-use was mandated by HUD so that 
relocation housing would^ be available for those displaced by the 
Stage II and other urban renewal projects. Id. at 33.

However, the' statutory requirement, and HUD's general 
policy, was merely that relocation housing be provided somewhere 
within the locality. See, e.g., Tr. 6936-37 (Schiffman). Only if 
it were deemed difficult or impossible to place relocation housing 
elsewhere would such a requirement become, in effect, a requirement 
that urban renewal areas be used for relocation housing. There is 
no question that HUD made the statutory requirement with respect to 
relocation housing clear to City officials. Any conclusions about

- 88-



the effect of that requirement in Yonkers, however, appears to have 
been made by City officials themselves rather than HUD.

Webdale's testimony that HUD determined the specific re­
use of the Stage II urban renewal area was not supported by any 
other City or HUD official. Indeed, Planning Director Philip 
Pistone testified directly to the contrary. Tr. 9865, 10,008
(Pistone).

In addition, the record indicates that the issue of re­
use was vigorously debated by City officials. GX 1057.1; C-254;
C-259; C-262. The Master Plan called for commercial re-use of the 
area, and prior to the reduction of the project size by HDD in 1965, 
commercial re-use indeed had been contemplated. Planning Director 
Pistone maintained, as he would continue to do well into 1970 that 
notwithstanding the-reduction in size, commercial re-use of the 
area waa.both feasible and essential to the future economic health 
of the City. Tr. 9864-68, 9877-78 (Pistone); 2779-80 (Arcaro).

Pistone held to his position even after wholly commercial 
re-use was rejected as unfeasible by several consulting reports 
prepared for the City in 1966 and 1967 (another curious waste of 
time and money if in fact the re-use had been determined by HUD). 
C-255; C-261; C-1546;' Pistone contended that the reports were
merely statistical studies prepared by people who knew little about 
Yonkers. C-262. Nonetheless, YURA decided in 1967 to recommend a 
combined commercial and residential re-use, with commercial 
development to the north, and residential development in the 
southern portion of the urban renewal area. C-262; GX 1079.

To be sure, there is evidence that the need for

-89-



relocation housing figured in the re-use determination. See, e.g., 
Tr. 9866 (Pistone). However, there is little if any indication in 
the contemporaneous evidence of the re-use debate that any City 
official (including Webdale himself) believed that as a matter of 
HUD policy, the urban renewal area could not be put to solely 
commercial use if an adequate amount of relocation housing were 
built elsewhere. Instead, the conclusion that appears to have been 
reached is that other locations were unavailable for such housing. 
In a June 1967 letter to Congressman Ottinger, most notably, 
Webdale explained that it was "absolutely imperative that some 
residential use remain in the Project Area, since the Relocation 
Program for problem families (i,e., apartment construction under 
FHA 221(d)(3)) depends on this type of housing.” 6X 1087.12.

.  ̂ The City's prior history of, site rejections suggests why 
those in need^ of subsidized housingu.were considered "problem 
families” in 1967^ and the reaction^^ to the Candeub & Fleissig 
survey two years later made clear that those families would remain 
a problem. Thus, it is scarcely surprising that immediately 
following the public reaction to the Candeub. & Fleissig survey. 
City officials doubled the number of housing units previously 
designated for the Stage II site.^

In sum, there is little evidence to support the City's 
assertion that the decision to confine subsidized housing to the 
Southwest was largely HDD's. The evidence suggests, instead, a 
conclusion by City officials that the opposition to subsidized 
housing outside of Southwest Yonkers effectively transformed the 
requirement that adequate relocation housing be provided into a

-90-



need to build as much subsidized housing as possible in the 
Southwest. The responsibility for that conclusion, however, 
clearly rests with the City and not HUD.

2. Absence of Private Developer Proposals in the East
The City also argues that the location of all subsidized 

housing projects in the Southwest during this period can, at least 
in part, be explained by the absence of proposals by private 
developers for projects in the East and Northwest an absence the 
City attributes to higher land costs and lack of developer interest 
in East Yonkers for subsidized housing.

Like the last, th'is argument in essence seeks to shift 
the responsibility for site selection to another entity, and like 
the last, the effort is not persuasive.

The City acknowledges as it must, that the development of 
subsidized housing projects during this period was by no means the

i
result of the City's passive acceptance of sites brought to it by 
private developers or the UDC. Beginning with Walter Webdale's 
arrival in the spring of 1967, the City pursued a course of active 
support and encouragement of privately sponsored subsidized housing 
projects in the Southwest. See HOUSING IV.C.l supra. No

*  f  . r-1 i  < J *- J, . .comparable outreach was made for the Northwest or East. Indeed, as 
the City itself points out, its focus on the Southwest was clearly 
communicated to developers. See City's Proposed Findings of Fact 
at p. 56-57; see also Tr. 10,182-83; 10,196-97 (Bogdanoff).

In light of the City's actions, the absence of proposals 
by private developers for projects in the East or Northwest is 
unsurprising. David Bogdanoff, the builder of Jefferson Terrace

-9/



and Jackson Terrace, and a participant in the abandoned proposal 
for family housing on what is now the site of Father Finian 
Sullivan Manor, testified that in general developers could build 
only on sites where the local government would provide assisance in 
acquiring the land. Id. at 10,140-44. Otherwise, according to 
Bogdanoff, there was no hope of meeting the cost limitations 
imposed by HUD. Id. Thus, the absence of developer proposals 
seems less a function of high land costs being unique to East and 
Northwest Yonkers, than the availability of City assistance being 
unique to the Southwest.

Similarly unpersuasive is the City's suggestion that 
those interested in subsidized housing were not interested in 
locations outside of the Southwest. Bogdemoff made clear that his 
decision to concentrate on Southwest sites waa pragmatic. Choosing 
the same metaphor., used,-, by Mayor .Del Bello in his.testimony, 
Bogdanoff explained that he had little interest in "tilting at 
windmills.” Tr. 10,144, 10,229. In Northwest and East Yonkers, 
Bogdanoff indicated. City support was lacking, community support 
was lacking, racial fears wene strong, and so,he decided to "build 
where we ... could build," produce the housing "now and let the 
world catch up with this-problem, ” and in the meantime "at least 
try to set an example in an area where we know the need exists and 
we know that we have the potential of doing it" as opposed to 
working on projects "that would never happen." Tr. 10,299; see 
also 10,143-45, 10,179-80, 10,224-25.

In light of Bogdanoff's own experience with the Father 
Finian Sullivan site, see HOUSING IV.C.3 supra, his conclusion that

95*



a project "would never happen" without community or City support 
seems particularly sound. And especially after the reaction to the 
Candeub & Fleissig survey, there could be little reasonable 
expectation of community or City support of a site in the East or 
Northwest. Thus, the absence of private developer proposals in the 
East or Northwest is neither surprising nor at variance with the 
conclusion suggested by the record as a whole. A builder's 
understandable reluctance to risk the loss of time and money on 
projects that are likely to be opposed by the community (and 
therefore by the City as well) says little about what the builder 
would have done if either community or City support had been a 
realistic possibility.

The City cannot - participate in tĥ '' creation of an 
atmosphere that would strongly discourage proposals for subsidized 
housing in East or Northwest Yonkers, and then defend the resulting 
concentration of subsidized housing in the Southwest on the ground 
that there were no proposals to put it elsewhere.

3. Support for the Projects Among the Minority Community
The City also argues that the support of the minority 

community for subsidized housing in Southwest Yonkers during this 
period precludes a~finding that the City acted with segregative 
intent. In this regard, the City emphasizes that both the 
privately sponsored and UDC-sponsored projects were supported by, 
and in three cases even initiated by, the minority community in 
Southwest Yonkers.

The Messiah Baptist project was proposed and sponsored by 
the Messiah Baptist Church. C-539; C-5443. Waverly Arms was



proposed and sponsored by the Community Memorial CME Church. C-554 
through C-557. And Whitney Young Houses, one of the first-round 
UDC projects, was proposed and co-sponsored by the Yonkers 
Community Improvement Corporation (YCIC), a predominantly minority 
community group, and the Westchester Urban League. C-643, C-644; 
Gunthorpe Dep. 22; Lenaz Dep. 20-25, 66.

In addition, two of the other first-round UDC projects, 
the Dorado and the Frazier Homes, which were located near the Otis 
Elevator expansion area and designated as relocation housing for 
the predominantly minority residents of that area, appear to have 
been supported by the surrounding community, see, e.g., Tr. 1346-47 
(Del Bello), and there is also evidence of support among the 
minority community for Parkledge, the UDC ‘ project located on 
Yonkers Avenue,- immediately west of the Saw Mill River Parkway. 
See, e.g., Tr.- 2269 (Yulish); 578-79 (Gibson); but see Tr. 8385- 
87 (Keith).

The City can scarcely maintain, however, that its 
officials believed that the minority community in Yonkers wanted 
all subsidized housing confined to the^Southwest section of the

V23,City,'^ As early as 1959, minority groups had begun expressing 
concern aboub tho segregative effects of locating subsidized 
housing in heavily minority areas, see HOUSING III.B supra, and 
from the mid-1960's on, there is evidence of regular and often 
public expression by minority and other community groups, and even 
by some City officials, of support for the concept of scattered- 
site housing^ and concern about the segregative effects of 
concentrating the City's subsidized housing in one part of the



City. In November of 1970, for example, a Southwest Yonkers com­
munity group wrote to protest the "oversaturation of low-income 
housing" in the area, contending that the continued concentration 
of such housing there would "inevitably lead[] to the creating and 
perpetuating of ghettoes." GX 1094.50. Similarly, in April of 
1972, a petition from the "residents and property owners of the 
Hollow" urged the City to adopt a policy of scattered-site housing, 
contending it was "morally right and [would], in the long run, 
benefit the entire city. GX 1144.11. See also, e.g., GX 1074.5; 
1079.7; 1081.7; 1081.8; 10^3.8; 1098.86; 1119.67; 1119.81; 
1119.86; 1119.136; 1144.8-.10; 1144.13; 1176.16; 1206.2; HOUSING 
III.D supra.

To be sure, there is also evidence of concern among some 
members of the* minority community about preventing the phenomenon 
of "black removal." Indeed, that concern appears to have figured 
in the support among the Otis relocatees for the Dorado and Frazier 
Homes, and in the sponsorship of Whitney Young Manor in the Hollow, 
where there was considerable racial tension between the older, 
largely Slavic, millworkers who lived there and the steadily 
increasing number of black and Hispanic residents. See, e.g., 
Lenaz Dep. 42-43,''250-51; GX 1144.5.

But if the City seeks to characterize its selection of 
sites for subsidized housing as a response to the concerns of the 
minority community, then it was, at best, a one-sided response. 
Concerns about the ability to remain in Southwest Yonkers were 
accommodated. Concerns about having the opportunity to live 
elsewhere in Yonkers were not.

Moreover, as the City itself has stressed, the Southwest



community, both white and minority, was faced with housing 
conditions that could fairly be characterized as desperate. See, 
e.q., 1083.41. The residents of the Northwest and East could
comfortably ignore the need for subsidized housing and urban 
renewal in Yonkers. The residents of the Southwest could not. And 
given the public reaction to the CAC list in 1967, the Bronx River 
Road sites that same year, and the Candeub & Fleisig survey in 
1969, one could well conclude, as indeed several witnesses 
suggested they did, that the possibility of obtaining City Council 
approval for sites outside of Southwest Yonkers in the foreseeable 
future was remote. See, e.q., Tr. 7252-53 (King); 536-40, 564-66, 
573-75 (Gibson). Thus, even if the minority community had not made 
its support of scattered-site housing clear, there would have been 
little basis under the circumstances that prevailed in Yonkers for 
construing minority proposals or support for Individual projects as

v/i . . “ O  . - -  ■ 'I ■- 7 ' 7

an expression of preference for having all subsidized housing 
located in Southwest Yonkers.

No City official testified that he believed that the 
minority community wanted to confine subsidized housing to the 
Southwest. To the contrary, many City officials —  including Mayor

^ , f 1 ’•'15 • . . .  ; teDel Bello and Walter Webdale —  acknowledged their awareness of 
that community’s desire to disperse the housing throught the City. 
Tr. 1313-15 (Del Bello); Webdale Dep. 318, 488; see also, e.q., 
Tr. 9772, 9992 (Pistone); 845-46 (Yulish). Even Gerald Lenaz, a
program manager for the UDC, who met with community groups in 
connection with most of the first-round UDC projects, and who 
testified at greatest length about "black removal" concerns.



acknowledged that minority groups also expressed considerable 
frustration at the City's refusal to approve sites outside of 
Southwest Yonkers. Lenaz Dep. 242-43.

Similarly, no City or UDC official suggested that the 
site for Parkledge was chosen over East side sites because of a 
belief that minorities preferred to remain in Southwest Yonkers. 
Nor could minority support of Parkledge reasonably be construed as 
such a preference. At HUD's insistence, the City had at last 
designated a site outside of an identifiable area of minority 
concentration, and it was a site that had been vigorously and 
successfully opposed in the past. See HOUSING III.B and III.D 
supra. Although the site, like all the others, was in Southwest 
Yonkers,.and although, as CDA employee Herman Keith,observed, the 
site was adjacent to the heavily minority area of the Hollow, Tr. 
8385-87, it unquestionably represented at least some progress. 
Thus, the existence of minority support is not surprising. As 
William Gibson, a black resident of Yonkers and member of the UDC- 
CAC succinctly explained, "at least we could see" the Saw Mill 
River Parkway from Parkledge, ”and^ the next step might win us 
over." Tr. 578-79.

Far from negating the suggestion that City officials 
acted with segregative intent in their selection of sites for 
subsidized housing, the evidence concerning the position of the 
minority community makes clear that both the public and City 
officials were acutely aware of the potentially segregative or 
integrative effects of site selection.

97



4. The Unsuitability of East Side Sites
The City also contends that the various sites considered 

in East and Northwest Yonkers during this period were, for reasons 
unrelated to any racially influenced community opposition, 
generally not suitable for subsidized housing. According to the 
City, the sites listed in the Candeub & Fleissig survey, as well as 
the other East side sites that were considered for possible UDC 
projects during the HUD-mandated search for a "scattered site," 
presented significant problems relating to cost, zoning, 
topography, traffic patterns, proximity to public facilities, and 
various other physical planning considerations.

However, there is little persuasive evidence to suggest 
that any of the sites.proposed outside of Southwest Yonkers were in 
fact rejected on the basis of planning, criteria. With respect to 
the Candeub & Fleissig sites, for example. Planning Director 
Pistone testified that he "never had much of an opportunity to do 
anything with those sites. Tr. 9771. Nor, it would appear, did any 
other City official. The list was announced, successfully 
campaigned against by Mayoral candidate Del Bello, and promptly 
abandoned upon his election. See HOUSING IV.C.2 supra.

To be sure,) the-quality of the Candeub, & Fleissig survey 
was roundly criticized by the City and UDC officials who testified. 
Walter Webdale, for example, discussed it as little more than "a 
catalogue of vacant land." Webdale Dep. 66; see also Logue Dep. 
72, 74, 195 ("a buckshot thing"; did not present UDC with "an 
abundance of easy choices"); Tr. 1284, 1295-97 (Del Bello) 
(included unrealistic, foolhardy, ludicrous sites). And it may

qs



well be the case that some of the sites were in fact "ludicrous" 
from more than a political perspective. However, even with respect 
to the eleven sites selected by Pistone and others for further 
study —  at least some of which Pistone characterized at the time 
as feasible —  Tr. 9767-68, 9873, 9942 (Pistone), City officials 
appear to have simply assumed that the sites were not feasible, 
rather than determining whether or not they were.— ^

Similarly, although the City contends that the RAMP site 
"emerged" as the most feasible "scattered site," it is not apparent 
from the record that this process of emergence was governed by 
planning criteria. The single east side site formally identified 
to HUD as an alternative that was considered but rejected was the 
old Lincoln High School sit« —  a site. Planning Dixm^ctor Pistone 
characterized as_suitable, but which was the subject of one of the 
"unforgettable"^ neighborhood association meetings testified to by 
Morton Yullsh. C-802; Tr. 9896-98 (Pistone); see HOUSING IV.C.5 
supra. Other east side sites were apparently considered by the UDC 
but not pursued for reasons unspecified in the record. When asked 
about various sites, Walter Webdale (who by then had moved to the 
UDC) stated simply that, the sites the UDC pursued were those that 
got a positive response from the City. Webdale Dep. 661-63. He 
went on to acknowledge that the only such site was the RAMP site. 
Id.— ^ Thus, here too the evidence suggests a presumption rather 
than a determination that east side sites were unsuitable.

In the Southwest, by contrast, particularly with respect 
to the first-round UDC projects, there appears to have been a

-99-



presumption in favor of suitability. As noted earlier, none of the 
new sites in the first-round projects (Whitney Young, The Dorado, 
and Frazier Homes) were submitted to the City Planning Board for 
review; nor was the decision to double the number of units for the 
Riverview site. Riverview I and II were approved without a firm 
indication of the income-mix of housing that would be put there (a 
curious gap for what was considered the centerpiece of the City's 
efforts to lure middle and upper income whites back to the 
Southwest). See HOUSING IV.D.5 infra. The Dorado and Frazier 
projects were approved without any financial feasibility study 
whatsoever; and when one was undertaken several months later, the 
donation of City-owned land (in addition to the tax abatements 
contemplated) was required in order to make the projects feasible. 
C-617. Similar City assistance,was also required for Whitney Young 
(in the form of the, donation of City owned lemd) , C-616; for 
Parkledge (in the form of an lafter-the-fact declaration of part of 
the site to be an urban renewal area in order to enable a federally 
subsidized write-down of land costs), C-787; and for Jefferson 
Terrace, Messiah Baptist, and Waverly Arms, (in the form of a 
discounted sale of land condemned or otherwise acquired by the 
City) GX 1079.61ar.^1083.25; 1084.21.

In addition, it is noteworthy that many of the Southwest 
sites were far from perfect from a physical planning perspective. 
For example, Jackson Terrace, Messiah Baptist, Parkledge and the 
Buena Vista projects all required variances for the absence or 
inadequacy of parking facilities. GX 1081.16a; 1082.32; 1083.25; 
Tr. 2129 (Yulish). Jackson Terrace, Messiah Baptist, and Seven 
Pines exceeded height restrictions and required variances on-that

/dO



ground. GX 1083.25; JjiO.35; Tr. 10,185 (Bogdanoff). Jefferson 
Terrace, Jackson Terrace, Messiah Baptist, and Parkledge had 
topographical problems which added to construction costs. GX 
1082.1; . Tr. 10,185, 10,208, 10,213 (Bogdanoff); Tr. 1031 
(Yulish); Webdale Dep. 227-28. The Dorado and Frazier Homes were 
in areas zoned for commercial or industrial use. GX 1120.35; 
122-23. Whitney Young was in an area designed in the Master Plan 
for industrial re-use. Tr. 9822 (Pistone). Riverview I and II 
were in an area designated in the Master Plan for commercial re­
use. Tr. 9515 (Piatone). Parkledge was located on a heavily 
trafficked street, was relatively far from shopping, and was served 
by schools considered to be overcrowded. Tr. 1031 (Yulish); 9774 
(Pistone); Webdale Dep. 261^3; ̂ GX 1098.85r see also GX 1060 (on 
the objections raised to> the site by area residents in 1956). 
Parkledge also«^required^ a choiceobetween, routing the project's 
traffic through a single-family neighborhood or creating a 
dangerous left-turn onto Yonkers Avenue. (The latter was chosen 
over the objections of the City's traffic planners). Tr. 1023-26 
(Yulish). . '

Similar and even"^identical problems have been offered to 
explain why particular sites outside of Southwest Yonkers were 
rejected or never seriously pursued. Yet, all of the Southwest 
sites described above were approved, most with little hesitation, 
while sites outside of Southwest Yonkers were rejected with little 
apparent study. Significantly, not a single City official 
testified that he believed there to be an absence of suitable sites 
for subsidized housing outside of Southwest Yonkers. Indeed, both

\o\



Planning Director Philip Pistone and former Deputy Planning 
Director Gregory Arcaro testified that suitable sites were in fact 
available. Tr. 9749 (Pistone); 2798-800 (Arcaro). Particularly 
in light of the strong evidence of community opposition to sites 
proposed outside Southwest Yonkers, there is no basis in the record 
for concluding that the apparent presumption against East and 
Northwest sites was motivated solely (or even largely) by planning 
criteria.

The City has also suggested that because S 236 projects 
were subject to land acquisition and construction costs calculated 
on a per unit basis, sites in the Northwest and East were generally 
not feasible unless legitimate standards of acceptable density were 
compromised. However, the cost limitations imposed upon S 236 
projects were by no means cast in stone. See, e.g., Tr. 6942-46, 
7078-87 (Monticciolo). The land acquisition costs for the Messiah 
Baptist project in Southwest Yonkers, for example, far exceeded the 
applicable ceiling. C-1706. Similarly, the UDC routinely exceeded 
S 236 cost limits, and even specifically advised the City that it 
had the ability to underwrite excess land acquisition'costs. Tr. 
853-54 (Yulish)

In addition, there is no persuasive evidence to suggest 
that the same techniques used to reduce land costs in Southwest 
Yonkers —  that is, donation or below-market sale of land owned or 
acquired by the City, or the designation of pockets of blight as 
urban renewal areas —  could not have been used in East and 
Northwest Yonkers. In fact, a survey of City-owned land was even 
urged by the UDC in 1971 and acknowledged to "make sense" by City



Manager Seymour Sober. GX 1098.1. The technique of aggregating 
projects that was used to make the 28-unit Frazier Homes project 
feasible could also have been considered for sites owned outside of 
Southwest Yonkers as could the technique of combining subsidized 
housing with other structures such as commercial facilities or even 
a school (as was done with respect to Riverview I and II) ^ 
Moreoverf it bears emphasis that Northwest and East Yonkers were by 
no means exclusively single-family areas. Multiple family 
dwellings were prevalent and steadily increasing, see fn. 36 supra, 
thus making generalizations about acceptable density likely to be 
over-simplifications

To be sure, serious questions of policy are implicated 
whenever a taxi-abatement is .granted or City-land is donated or sold 
at a discount, and it is not inconceivable that a locality might 
conclude, even in the absence of community opposition, that such 
actions are inappropriate in particular- areas of the City. 
However, these issues of policy appear to have been raised not by 
City officials, but by area residents- in petitions and at emotion- 
filled meetings.There is no evidence of any reasoned debate of 
the issues among City officials.

The app»ent absence of any serious consideration of East 
side sites is particularly noteworthy in view of the significant 
disadvantages of the course being followed by the City. Land that 
was zoned or designated for commercial or industrial use was given 
over instead to housing at a time when it was generally agreed that 
serious efforts should be made to increase the City's industrial 
and commercial tax base. See, e.g., Tr. 2870 (Arcaro) . Subsidized

\o5



housing was increasingly concentrated in and around the downtown 
area despite warnings that it could further hinder the prospects 
for coimneccial revitalization. S e e , e . g , , Tr. 2779-82, 2865-70 
(Arcaro); 9773 (Pistone); GX 1172.1; 1080.8; 1090.5; 1093.8. 
Yet, there is little evidence that the pros and cons of dispersing 
at least some of the City's subsidized housing were ever seriously 
considered by City officials. Not even when the failure to 
designate a site in East Yonkers risked the loss of the City's 
badly needed urban renewal funds is there any apparent evidence 
that East side sites were considered beyond a preliminary testing 
of the "political waters."

The apparent absence of any serious consideration of 
specific East side sites. merely reinforces the suggestion of the 
record as a whole that the option of putting subsidized housing in 
East Yonkers was not considered politically feasible. ■

In addition, the history of the City's $ 23 Leased 
Housing Program provides further indication that the total 
confinement of subsidized housing projects to the Southwest was not 
the result of the- universal unsuitability of East side sites. 
Under the S 23 prog ran,, the City rented apartments in privately 
owned buildings and then, using federal rent subsidies, sublet them 
to low-income tenants.

As City officials acknowledged in descriptions of the 
program, S 23 housing was specifically intended to promote 
dispersal of low-income housing throughout a community. P-I 160- 
36, P-I 160-43. Indeed, Walter Webdale expressly represented to 
HUD in 1971 that the S 23 program was being used to provide



relocation housing "throughout the City." P-I 160-31.
Yet, the record indicates that from the inception of the 

program in 1969 through its phasing out in the mid-1970's, all, or 
virtually all, of the leased units were located in Southwest 
Yonkers buildings. P-I 160-26; P-I 180-249; GX 1176.24; 1176.28; 
Tr. 2895-97 (Arcaro) . The record also indicates that the S 23 
tenants were overwhelmingly minority, C-405; P-I 161; GX 1114.6; 
that when the possibility of renting units in buildings in heavily 
white areas was first raised at a CAC meeting in 1967, "it was 
questioned whether realtors and 'city fathers' would approve," GX 
1079.6; and that the City in fact agreed to consult with each 
councilmember before using S 23 housing in his or her ward. GX 
1176.17. .... .

Thus, even^with respect to.a subsidized housing program 
which the City claimedrjto be using for the dispersal of low-income 
housing, and which created few, if any, of the problems 
traditionally cited as grounds for opposing subsidized housing in 
the East (zoning, increased density, traffic congestion, etc.), see 
P-I 160-43, the housing was once again essentially confined to 
Southwest Yonkers. The result is difficult to explain except by 
reference to the race of the tenants.— ^

5. Pursuit of a Legitimate Planning Strategy to Use 
Subsidized Housing to Rebuild the Southwest

The argument most vigorously pressed by the City is that 
the confinement of subsidized housing sites to Southwest Yonkers 
during this period reflected a legitimate planning strategy to use 
subsidized housing to revitalize that section of the City. 
Subsidized housing was used, according to the City, as a "seed

loS



investment" to encourage private-market residential and commercial 
development in the Southwest, and to encourage a return of middle 
and upper income whites to the area.

The overall failure of that strategy cannot seriously be 
disputed. Seven of the eight privately sponsored subsidized 
housing projects rented up, and remained, heavily minority, with 
five of the seven having an initial minority tenancy in excess of 
80%. C-1650.^^ Nor did the UDC-sponsored projects fare better. 
Id. Indeed, when Riverview I and II opened in 197S, large numbers 
of units were kept vacant, and large numbers of minority applicants 
kept waiting, while unsuccessful efforts were made to attract 
whites to the projects. That practice eventually led to a 
complaint filed'-by the NAACP-^nd asconsent' decree^ altering the 
rental policies. Although efforts to attract whites continued, 
Riverview became^and remained, predominantly minority. C-1650. In 
addition, the concentration of subsidized housing in Southwest 
Yonkers is widely viewed to have seriously hindered, rather than 
helped, the economic revitalization of the area. See, e.g., Tr. 
9773 (Pistone)y 7688^(Martinelli).

The City contends, however, that its strategy was both 
reasonable (if unsuccessful) and unrelated to any ' racially 
influenced opposition to the placement of subsidized housing 
elsewhere. In support of its contention, the City points to the 
testimony of David Portman, its expert witness on urban planning, 
and to the existence of the City's Community Renewal Plan, a report 
issued in June of 1970.

Dr. Portman testified that under then-prevailing



planning standards it was reasonable for the City to place 
relocation housing in or near urban renewal areas and to attempt to 
use subsidized housing to upgrade the neighborhood and attract 
commercial and private residential development. Tr. 10,207-10, 
10,714-20. Dr. Portman disagreed with the opinion of Paul 
Davidoff, the government's expert, that the concentration of 
subsidized housing in the Southwest stigmatized the area (thus 
discouraging private residential and commercial development), and 
suggested that in any case, the failure to reinvest would have been 
perceived as a- public abandonment of the Southwest, which would 
have had an even greater stigmatizing effect. Id.

However, Dr. Portman subsequently acknowledged that 
avoiding the. appearance- of abandonment did -not require that all 
subsidized housing be built in the Southwest, Tr. 10,727-28, 
10,744, and that it also would have been reasonable to pursue a 
middle ground —  that is, to put some subsidized housing in the 
Southwest and some elsewhere. While Dr. Portman declined to 
express an opinion on whether that alternative would have been 
preferable, he did acknowledge that as.^ .planner he "probably" 
would have presented the alternative to t)̂ e City as something to 
consider. Id.- Drv» Portman also subsequently acknowledgi^d that it 
would have been preferable if the City's "seed investment" in the 
Southwest had not been largely limited to subsidized housing, but 
had included more in the way of arterial widening and other 
physical improvements. Tr. 10,834-37.

Dr. Portman offered no opinion on whether the City's 
confinement of all subsidized housing to the Southwest was in fact

lOl



related to the strong opposition to subsidized housing that was 
evident in Northwest and East Yonkers. Nor, in light of his 
concessions about the alternatives available to the City, does his 
testimony offer any significant support for a conclusion that the 
two were, in fact, unrelated.

The second item emphasized by the City —  its Community 
Renewal Plan ("CRP") —  was prepared as part of the City's 
Community Renewal Program, a federally funded study "to measure the 
intensity of community problems which affect the quality of life in 
Yonkers and to set forth a systematic program for their elimination 
or reduction." C-337 at 26601. Plans for undertaking a Community 
Renewal Program in Yonkers began in March of 1966, and the 
following summer ,YURA Director Walter Webdale hired Patrick Kane 
and his consulting firm, KRS Associates, to assist in the project. 
C-325; C-328> Tr,„̂ 8677, (Kane). KRS was made responsible for 
project coordination, the physical planning aspects of the study, 
and the preparation of the CRP. C-337.

The CRP set forth in general terms a long-range program 
for the redevelopment of the Southwest and a more specific short- 
range program for the years 1970 through 1975. The recommendations 
in the short-range pjrogram included the use of federal funds to 
construct subsidized housing in Southwest Yonkers, and the use of 
the "checkerboard strategy" to maintain an adequate supply of 
relocation housing. Id.; Tr. 8707-08 (Kane)

However, the circumstances of the Plan's preparation 
undermine its significance as support for the contention that the 
City's activities during these years were unaffected by racially

loS



influenced opposition to the placement of subsidized housing 
outside Southwest Yonkers. Patrick Kane testified that in 
formulating the plan he met with City officials and Yonkers 
residents extensively and learned, inter alia, of the City's urban 
renewal and subsidized housing history, of the "stalemate" that had 
been created by the lack of relocation housing, and most 
significantly, of the concerns that existed in East Yonkers with 
respect to potential change of the "character" of the neighborhood 
—  concerns that Kane understood to include the possibility of 
"racial alterations of the homogeneous composition of the 
community." Tr. 8680-81, 8689-91, 8709-14, 8734, 8787, 8802-03, 
8910 (Kane).

Kane....testified thatr ,heA felt "compelled by -law and 
conscience" to disregard the racially influenced fears of East 
Yonkers residents^ Tr. 8910. However, he also acknowledged that 
those fears made selection of subsidized housing sites in East 
Yonkers "all but impossible." Tr. 8803. Kane did not recommend 
the impossible. Instead, he left the question of the racial 
homogeneity of EastrYonkezs^to another day, Tr. 8706, 8721-22, and 
focused instead on Southwest Yonkers. Tr. 8737. As a result, 
while the CRP may suggest that City officials were not entirely 
alone in their perception of political realities in Yonkers, it 
does not suggest that the City's actions with respect to subsidized 
housing were not based, at least in significant part, upon that 
perception.

Moreover, it is not apparent from the record that Kane's 
recommendations carried any significant weight with City officials.



While there is evidence showing that Kane was in fact involved in a 
number of the City's planning activities between 1967 and 1970, the 
various City officials who testified about site selection for 
subsidized housing during those years did not suggest that the 
selections were made in reliance upon Kane's advice. Indeed. 
Walter Webdale dismissed the entire Community Renewal Program as 
being of little importance to the City's planning efforts, 
explaining that ”[i]t was formally put together, but there wasn't 
that much cooperation in the City to make it really function as it 
was designed to function." Webdale Dep. 381-82; see also GX 
1088.28. ^

In general, the testimony of the City officials who were 
closely involved with subsidized'housing and urban renewal during 
these years contains little to suggest that the total confinement 
of subsidized housing to the Southwest was the result of an 
affirmative plan to use subsidized housing to revitalize the area. 
Walter Webdale stated flatly that YURA went into the subsidized 
housing business only because the MBA had failed to provide the 
necessary relocation housing for the City's urban renewal projects. 
Webdale Dep. 74-75; 241f^ 592. And'apart from-his unsupported 
suggestion that he' was- compelled by HUD to limit the agency's 
housing activities to urban renewal areas, see HOUSING IV.D.l 
supra, Webdale*3 explanation for the confinement of subsidized 
housing to the Southwest was simply that he believed a "two for 
one" approach which combined subsidized housing and redevelopment 
"was the prudent and wise thing to do." Webdale Dep. 244. The 
respect in which it was "prudent and wise" is suggested by

llO



Webdale's further acknowledgement that the public's attitude toward 
subsidized housing was a "significant barrier" to the City's 
ability to provide relocation housing, and that he had heard 
various councilmen say that they wouldn't survive politically if 
they supported subsidized housing projects in their wards. Webdale 
Dep. 484-85, 562.

In the same vein, the testimony of Mayor Del Bello 
conveys primarily an awareness of the urgency of the need for 
subsidized housing, and of the limitations imposed by community 
opposition. Although by the time Del Bello took office in January 
of 1970 there had been some progress made toward removing the 
relocation "roadblock" to the City's Stage II urban renewal 
project, the^need-for subsidized housing-as a relocation-resource 
remained acute. ' Ih addition- to-Stage IT, the planned clearance for 
the Otis expansion was estimated to require the relocation of some 
1,000 families, and there were other projects in the works as well. 
Tr. 1326-30 (Del Bello); 835-37 (Yulish). Moreover, as Mayor Del 
Bello explained, the City "had people living in desperate, horrible 
conditions,"'and he-contended that "the best thing [they] could do 
as public officials was- to get them in safe, decent standard 
housing." Tr. 1214-15; see also Tr. 834 (Yulish); 8707 (Kane); 
Lenaz Dep. 18, 23, 37 (describing "tremendous sense of urgency" 
communicated by the Del Bello administration to the UDC in early 
1970).

Although Del Bello testified that subsidized housing was 
intended to play a role in the City's redevelopment strategy by 
stopping the spread of blight in the Southwest, Tr. 1326, he did 
not suggest that it was for that reason that subsidized housing was

///



confined to the Southwest. To the contrary, as noted earlier, Del 
Bello acknowledged that the reason sites in the Southwest were the 
only ones chosen was that "councilraen wouldn't approve sites in any 
other areas.” Tr. 1193.

Also noteworthy, as suggested earlier, is the apparent 
absence of discussion or debate among City officials about the 
proper location of relocation housing. Instead, there is only 
evidence of off-hand remarks which suggest that at least for the 
time being, discussion was considered unnecessary. At a 1971 CAC 
meeting, for example, in the course of a discussion about the newly 
opened Jefferson^ Terrace^ it. waâ  i suggested ithat the apparent 
success of the project be publicized so as to "produce a greater 
understanding of how the S 236 program works and perhaps help to 
alleviate some of the opposition to locating these buildings in 
North and East Yonkers.” GX 1079.63. Similarly, at a City Council 
hearing held that same year, one of the sponsors of Jackson Terrace 
successfully urged a reluctant City Council to grant the project 
several variances, arguing that ”in light of the announcement of 
the Federal Authority, in regard to scattered site housing, which, 
I presume, will tie up this Council for some time in its dilemma, 
Jackson Terrace may be the only source of housing for some time to 
come.” GX 1082.32; see also GX 1090.5; 1108.3; 1189.1.

Particularly conspicuous is the absence of any formal 
discussion among City officials or with the public about the 
selection of sites for the 1,200 units of subsidized housing 
provided for in the City's first Memorandum of Understanding with 
the UDC. Nor can that absence be explained by a lack of issues



worthy of discussion. To be sure, the agreement offered a massive 
supply of relocation housing, the need for which few would have 
disputed. However, there was reason to question whether all of 
that badly needed relocation housing belonged in and around the 
downtown area. The agreement added 1,200 subsidized units to more 
than 500 also in progress for an area that was already considered 
by the City's Planning Director to be overconcentrated with 
subsidized housing. GX 1090.5; GX 1093.8; Tr. 2779-82, 2865-70 
(Arcaro); 9773 (Pistone). In addition, the Whitney Young site was 
in an area designed in the Master Plan for industrial re-use and 
was considered by Planning Director Pistone to be an "excellent" 
industrial site. Tr. 9822. Had he been consulted about the site,

r I . - -•« ■ ^ . t

Pistone testified, he would have opposed it on that ground. Id. 
Similarly, the sites for the Dorado and Frazier Arms were in areas 
designated for commercial and Industrial re-use, and one of the 
sites had been rejected by HUD a few years earlier on the ground 
that it was unsuitable for residential use. C-583.

In addition, while at least some City officials may have 
considered the rejection of wholly commercial re-use for the Stage

■ K •II urban renewal area long since settled (although Pistone 
testified he attempted to persuade newly elected Mayor Del Bello to 
reconsider the issue, Tr. 9877), it is nonetheless peculiar that 
the decision to abandon previous plans for a half-commercial re­
use, and instead double the amount of housing, was made without any 
apparent formal or public discussion. The only apparent public 
debate of the decision came several years later in 1972 when 
members of the Yonkers Economic Development Corporation attempted



to prevent construction of the 343-unit Riverview II, proposing 
instead a commercial "superblock". Cola Dep. 38, 42. By that 
time, however, the City was either unwilling or unable to 
reconsider plans for the area.

Equally deserving of discussion was the reasonableness of 
expecting Riverview to lure middle-income whites back to the 
Southwest. The City points to the success of Fhillipse Towers, the 
Mitchell-Lama project just across the street from Riverview, as 
reason for optimism about Riverview's own chances of success. And 
in fact, Phillipse Towers was, at that time, widely viewed as a 
well-integrated and well-managed complex, which had exerted a 
stabilizing influence on the neighborhood.

However, the" circumstances of Riverview's construction 
were clearly different. It was to be part of a large infusion of 
subsidized hodiing^in and around the downtown area (500 privately 
sponsored units and 1,200 UDC-sponsored units), and a substantial 
minority tenancy for that subsidized housing was virtually certain. 
See, e.q., Webdale Dep. 54-55. Indeed, a UDC memorandum prepared 
along with the draft agreement in April of 197D described the first 
round UDC projects as helping to provide relocation housing for the 
nearly 1,000 black families living in substandard housing in the 
general area. GX 1088.8. Yet, there is no evidence of any formal 
or public discussion about the possible effect of these 
circumstances on Riverview's ability to attract white tenants.— '̂

Moreover, Phillipse Towers was a middle-income project 
while Riverview was, at the time of Council approval, partly low-

/ / V



income and mostly undetermined. The July 1970 Memorandum of 
Understanding called for a mix of 20% low income, 10% low income 
elderly, and 70% to be "primarily" middle income with subsequent 
market studies to determine the percentage of moderate income and 
conventional units, GX 1088.12. However, a UDC marketability study 
completed in April had already determined conventional units to be 
"completely unmarketable" and middle-income units unmarketable on 
any significant scale. C-606. Yet, there is no evidence of any 
discussions among City officials about the wisdom of approving a 
project without a firmer indication of the type of housing that 
would be put there, nor evidence of any studies or discussions 
about the effect of changes in income mix on the likely tenancy. 
Instead, as noted earlier, the UDC agreement was simply presented 
to the YURA Board ' and approved without apparent debate, and 
approved by the" City - Council the following day. See HOUSING 
IV.C.2 supra.

We do not find, as plaintiffs have suggested, that these 
circumstances indicate that the City had no intention of attempting 
to attract an integrated tenancy to any of the projects, or that it 
had no genuine hope ̂ however ill-founded) of successfully doing so. 
There is credible evidence that- efforts were made (apart from the 
practices that gave rise to the NAACP complaint), and that hope did 
in fact exist for creating something other than an "unsalvageable 
ghetto." GX 1978,32> see, e.g., Tr. 10,157-59, 10,182-83, 10,196- 
97 (Bogdanoff).

However, a policy of excluding minorities from all areas 
of a city except one cannot be justified by attempts to encourage

IIS



integration in the remaining area, see, e.q., Gautreaux v. Chicago 
Housing Authority, supra, 296 P.Supp. at 914, and it is clear that 
the City's actions with respect to subsidized housing during these 
years were motivated, at least in part, by such a policy. The 
circumstances under which the City acted, taken together with the 
testimony of its own former officials, permit little doubt that the 
role which subsidized housing came to play in Southwest Yonkers 
during these years was, in significant part, the result of 
perceived necessity —  due to racially influenced community 
opposition to the placement of the housing elsewhere —  rather than 
nondiscriminatory design.

Our conclusion in this regard is reinforced by the 
circumstances leading up to the City' s'Approval of the RAMP site in 
order to satisfy HUDS*s requirement that a "scattered” housing site 
be approved. On the record before us, the selection of the RAMP 
site cannot persuasively be explained as part of a strategy to 
rebuild the Southwest, nor as the result of the unavailability of 
East side sites, but only as an indication of the extreme degree to 
which community-support (and therefore City Council support) was 
lacking for the placement of housing equated with minorities in 
East Yonkers.^ " ’ ’ ■ - • .



V. THE CITY'S ACTIVITIES UNDER THE HOUSING AND COMMUNITY DEVELOPMENT ACT OF 1974
In the years following the Riverview period, in response 

to continuing federal pressure, the City's planners made several 
attempts to promote at least some dispersion of subsidized housing 
in Yonkers. The discriminatory pattern of previous years
continued, however, and at virtually every turn, their efforts were 
opposed by the City Council. The result has been the continued
concentration of all subsidized housing for families, and virtually
all subsidized housing for senior citizens, in Southwest Yonkers.

A. Subsidized Housing Under the Housing and Community Development 
Act of 1974

With the enactment of the Housing and Community
Development Act of 1974 (HCDA), the major federal urban renewal 
programs were replaced by the Community Development Block Grant 
(CDBG) program, under which a community may apply for annual block 
grants to be used for community development activities such as slum 
clearance and infrastructure improvement. Among the requirements 
for CDBG eligibility is the development and approval by HUD of a 
Housing Assistance Plan (HAP) for the community. The HAP surveys 
the housing conditions in the community; describes the housing 
needs of lower income households, and specifies the type and 
location of housing assistance to be provided. One of the goals of 
the HCDA is to promote dispersal of subsidized housing 
opportunities (particularly for minorities), and one of the 
criteria by which a HAP is judged is the extent toiijhich it furthers 
that goal. See, e.g., Tr. 9802, 9934-35 (Pistone); 10,465-66
(Yost); 6335-36 (Diamond). A grantee's performance under the CDBG

in



program is measured, in part, by the efforts made toward providing 
the housing assistance specified in the HAP.

The primary program for housing assistance under the HCDA 
is the Section 8 Program, under which rental subsidies are paid to 
a landlord on behalf of eligible tenants. The Section 8 program is 
subdivided into several categories: new construction, substantial 
rehabilitation, moderate^rehabilitation, and existing housing. 
Under the new construction and rehabilitation programs, development 
proposals are made directly to HUD in response to the publication 
of a Notice of Funding Availability (NOPA), The local government 
is then invited to review the proposal for consistency with its HAP 
and to offer any other comments it may have. The review is 
generally known as a S 213(a) review (a reference to the provision 
of the HCDA which, requires it) .

Under- the Section 8 Existing Program, a local housing 
agency applies to>HUD (again in response to a NOFA) for a certain 
number of Section 8 Existing Certificates for distribution to 
eligible families or individuals. Certificate holders can then use 
the certificates to obtain an apartment from a landlord willing to 
accept the certificate in-lieu of a designated portion of the rent, 
which is then paid by the.local housing authority on behalf of the 
certificate holder.
B. The Section 8 Existing Program

In March of 1915, the City submitted its first Housing 
Assistance Plan (HAP). C-1086. The Year I (1975-76) HAP 
identified —  as would all subsequent HAPs in evidence —  
significant needs for subsidized housing among both the senior

11^



citizen and family populations in Yonkers. M.; C-1087 through C- 
1091. The basic strategy proposed in the Year I HAP to work toward 
meeting those needs was new construction of subsidized housing for 
senior citizens in East Yonkers; rehabilitation of existing 
structures for families primarily in Southwest Yonkers; and the 
use of Section 8 Existing Certificates by both families and senior 
citizens. C-1086. With respect to the lattermost, the Year I HAP 
called for the City to apply for 100 Section 8 Existing 
Certificates to be split equally among senior citizens and 
families.

As City officials acknowledged at trial, the fifty 
Section 8 Existing Certificates represented the sole aspect of the 
Year I HAP that offered' any significant chance of dispersing at 
least some subsidized housing for families into the overwhelmingly 
white neighborhoods of East and Northwest Yonkers. Tr. 10,430-36 
(Yost); 7348 (Yodice). It was also one of the first aspects of 
the HAP to be rejected by the City Council. That rejection, 
together with the City's subsequent actions with respect to the 
Section 8 Existing Program, provide what may be the single most 
persuasive indication of the degree' to which segregative intent has 
figured in'the City's subsidized housing activities.

In August of 1975, in response to word from HUD that 100 
Section 8 Certificates had been set aside for Yonkers, City Manager 
J. Emmet Casey submitted the City's application for the certifi­
cates. GX 1164. Several weeks later, on September 2, 1975, Casey 
sent a memorandum to the Mayor and the City Council requesting 
official authorization for the City to participate in the program.



and urging the Council to act expeditiously so that HUD would not 
reallocate the certificates to another community. GX 1104.7. (The 
Mayor was now Angelo Martinelli, who had defeated Mayor Del Bello 
in the 1973 election, and who had campaigned as an opponent of any 
additional construction of subsidized housing in Yonkers. Tr. 
7432-33.)

On September 10, 1975, the City Council met, and on the 
motion of Councilmember Walsh, referred the matter to committee. 
GX 1104.9. Alphons Yost, who had succeeded Morton Yulish as the 
Administrator of DOD, and who also headed the Yonkers Community 
Development Agency (formerly the Yonkers Urban Renewal Agency), 
testified at trial that it was apparent to him at the September 
10th Council meeting that the Council would not, authorize the 
City's participation in ther Section 8 .Existing ^Program. Tr. 
10,521-22. Nonetheless, in the City's S 213(a) review submitted 
the following month, Casey told HUD that the application for fifty 
senior citizen and 50 family certificates was consistent with the 
City's HAP and "fully supported by the City administration." GX 
1104.10. . . -

On November 14, 1975, HUD notified Casey that the City's 
Section 8 Existing application, had been conditionally approved 
subject to the receipt within ten days of a resolution by the 
"governing body of the Agency authorizing participation in the 
Section 8 program." GX 1104.15. Yost asked the CDA's attorney 
whether a resolution from the CDA Board would suffice, but was told 
that it would not. GX 1104.16; 1104.17.

Two months later, on January 21, 1976, Yost reported in a

■3^



memorandum to City Manager Casey that HUD had told him that unless 
the City Council passed a resolution authorizing the City's 
participation in the program on or before the first week of 
February, the 100 certificates would "in all probability" be 
reallocated to another community. GX 1104.17. Yost also noted 
that the "Council [had] been agonizing over this aspect of our 
Housing Assistance Plan for some time and [had] not come to a 
conclusion as to their dispositional desires." Id.

On January 27, 1976, the City Council met and voted seven 
to six against authorizing the City to participate in the Section 8 
Existing Program. Mayor Martinelli who attended the meeting and 
voted against the program, testified that he had no recollection of 
any discussion that may have**"̂ preceded the vote. Tr. 7491-96 
(Martinelli). Alphons Yost* likewise- professed to recall little 
about the Council's position on the issue. Tr. 10,522-32.

Others, however, testified that the Council's opposition 
was based on the geographic mobility the program would give to 
those of low and moderate income. City planner Gregory Arcaro, for 
example, testified that while there was little public discussion of 
the program, there were numerous informal discussions with City 
officials, and that̂  he was asked more than once whether it was true 
that the City would have no control over where the certificates 
were used. Tr. 2848-57. People would ask, Arcaro explained, 
whether the certificate holders could in fact "go anywhere," 
including buildings in East Yonkers. M .  Arcaro testified that he 
was told by Yost and the City Manager that some councilmembers 
opposed the program because of its mobility, but that he could

19̂ 1



recall little specific discussion as to why, "other than what we 
probably knew in our heads." Tr. 2855-56; see also Tr. 10,325 
(Hanney). Herman Keith, a CDA employee who also attended the 
January 27th meeting, confirmed that the basis of the objections to 
the program was that the certificate holders could "seek housing 
anywhere in the City." Tr. 8415-16. Keith also testified that he 
believed that those who objected to the program were concerned that 
minorities would move to East Yonkers. Id.

Also in attendance at the January 27th meeting was 
Winston Ross, then president of the Yonkers Branch of the NAACP, 
who spoke in favor of the program. Tr. 3833-34. Ross testified 
that in the discussion preceding the vote, a number of 
councilmembers stated that they were opposed to the use of Section 
8 Existing Certificates for families in their wards, an4 that at 
least one opposing councilmember likened the program to scattered 
site housing. Tr. 3834-36. Five of the six councilmembers who 
joined Mayor Martinelli in voting against the program represented 
wards that were totally or partly east of the Saw Mill River 
Parkway. Tr. 3836; GX 1104.3.

Two days after the vote, Ross sent a letter to each of 
the councilmembers^ who^^h^d voted against the Section 8 Existing 
Program urging them to reconsider. GX 1104.3. The letter stated 
that:

In a time when there is a desperate need for 
adequate and safe housing for the elderly and 
low-income families to reject a program that 
doesn't cost the City of Yonkers and provides 
some relief for a number of citizens shows an 
insensitivity to their needs.
Section 8 Existing Housing Program would aid



families in finding decent housing without 
affecting the city's tax base through tax 
abatements as in other subsidized programs. To 
raise the issue of "scatter site housing" when 
speaking of 100 units equally split between 
low-income and elderly Yonkers residents shows 
a lack of understanding of housing concepts and 
smacks of racism.Id.
A memorandum sent the same day from Alphons Yost to City 

Manager Casey (with copies to the Mayor and various councilmembers 
and other City officials) reported that on the day after the 
Council voter Yost told Jed Abrams, a HUD official, that he "was 
having difficulty in getting the administration to go along with" 
the Section 8 Existing Program as outlined in the Year I HAP. GX 
1104.19. Yost told Abrams that since the HAP "placed heavy 
emphasis on senior citizen domiciles through new construction and 
since no new construction has been started under Section 8,'due to 
a lack of mortgage monies, we felt that we must therefore change 
the specified needs" to 100 Section 8 Existing Certificates for 
senior citizens. Id.

Yost reported that Abrams' initial reaction was that the 
change "might require a major revision to the plan necessitating a 
long term reviewing process," but that after consultation with his 
superiors, Abrams suggested an "alternate solution." Yost's 
memorandum stated that:

The alternate solution suggested was one in 
which the City would request, through Council resolution, that the 100 units for existing 
housing in the first year's application be 
allocated to senior citizens only and with a 
back-off alternative being that the 50 units presently specified in the HAP for senior 
citizens be authorized with no action to be 
taken on the 50 units earmarked for families.



Id, Yost observed that "with these conditions the councilmatic 
objections should be somewhat abated," and urged that since the 
issue "turned into a major discussion item" at the last Council 
meeting, a committee meeting be held "as soon as possible." Id.

But despite HUD's apparent willingness to accommodate 
"councilmatic objections" to the use of the Section 8 Existing 
Program for families, Yost expressed concern about the possible 
consequences of the City's actions. The following month, in 
February of 1976, Yost wrote a memorandum to Deputy City Manager 
Vincent Castaldo, enclosing a recent national housing newsletter 
which he described as "clearly indicat[ing] how seriously HUD 
considers the dictates of the” HCDA and "also reflect[ing] HDD's 
concern [that]- low inccMne housing, [not be limited] to sub-standard
areas.' GX 11Q4.21. The memorandum then went on to-recount the
Council's rejection of the Section 8 Existing Program, and warned 
that ”[i]f this matter is not resolved in a way that HUD feels 
comfortable with we would be putting all subsequent CD monies in 
jeopardy." Id.

Castaldo. distributed copies of Yost's memorandum to Mayor 
Martinelli and City councilmembers. P-I 171-19. Castaldo's 
covering memorandum stated-simply that:

I am transmitting herewith copy of letter from 
Department of Development Director, A1 Yost, 
concerning Section 8 Housing and how it may affect the block grant to the Community Devel­
opment Agency.
As soon as we have received final information 
from HUD, I will advise you further.

Id.
By mid-March of 1976, the Council had not taken any



further action with respect to the Section 8 Existing Program, nor, 
apparently, had HUD acted upon a written request by Yost for "HUD's 
official response" to the City's plan to alter its Section 8 
Existing application from fifty senior citizen and fifty family 
certificates to 100 senior citizen certificates. GX 1104.20. On 
March 19, 1976, Yost wrote a memorandum to Castaldo (who had since 
become City Manager) outlining the results of some thinking he had 
done about the Section 8 Existing Program "and the qualms of 
certain of the Council relating thereto." GX 1104.23.

Yost's memorandum began by noting that "the Section 8 
Existing Program does not require that people be moved from one 
place to another, so there should be no concern on that score on the 
part of the Council..” Id. That fact, Yoet. suggested, plus HUD's 
apparent willingness to convert all the Section 8 Existing Certifi­
cates called for in the Year I HAP to certificates for senior 
citizens "should be sufficient for councilmatic approval." Id.

Noting, however, that the Council "unfortunately" had yet 
to give that approval, Yost suggested another means of 
"sweeten[ingl the pot," Id, He suggested that "each councilman be 
allowed to recommend to the Agency eight worthy individuals in 
their respective Wards who qualify for the Section 8 Existing 
Program and the Agency would give those people priority such that 
each Councilman could get full credit for whatever his involvement 
turns out to be." Id. "With this kind of a program," Yost conclud­
ed, "I feel that even the allocation of fifty family and fifty 
elderly units becomes viable since the apportionment of each would 
be made by the councilman involved." Id.

ia6



On April 27, 1976, eight months after the City's original 
application for Section 8 Existing Certificates, the City Council 
voted nine to three to authorize the City to apply for 100 Section 8 
Existing Certificates for use by senior citizens. GX 1104.26. On 
May 12, 1976, HUD notified the City that it would be awarded 50 
certificates for senior citizens (the amount originally provided 
for in the Year I HAP). GX 1104.31.

The City's Year II and Year III applications for the 
Section 8 Existing Program were likewise limited to certificates 
for senior citizens.— ^ Not until 1978 did the City apply for any 
Section 8 Existing Certificates for families. And even when it 
finally did so, relatively few were put into use, and fewer still 
put into use outside of Southwest Yonkers. As of February 1982, 
only thirty-six certificates for families were in use (out of at 
least 120 awarded to the City), and only three were in use outside 
of Southwest Yonkers. GX 1225.38.— ^

In addition, not a single certificate held by a minority 
member (whether family or senior citizen) was in use outside of 
Southwest Yonkers. All twenty-seven of the minority holders 
of family certificates lived in Southwest Yonkers, as did all 
forty-three of the minority holders of certificates for senior 
citizens. In contrast, twenty-four certificates were in use by 
whites outside Southwest Yonkers. Id.

The City contends, and indeed has represented to HUD, 
that it has made significant efforts to encourage landlords in 
non-minority areas to participate in the Section 8 Existing 
Program. See, e.g., Tr. 6715-17 (Forman). However, there is no

\9XS>



evidence in the record of any significant outreach to East Yonkers 
landlords.— ^ Fred Stillman, for example, who owned or managed a 
number of apartment buildings in East Yonkers and who was well 
known to City officials because of his involvement in the 
management of Seven Pines and Riverview II, testified that he has 
never been approached by City officials about possible 
participation in the Section 8 Existing Program. Stillman Dep. 6- 
8, 127. In addition, and more significantly, a City official 
acknowledged at trial that a list of contacts presented to HUD as 
evidence of the City's efforts to expand the use of the Section 8 
Existing program by minorities in non-minority areas consisted of a 
list of buildings in Southwest Yonkers. Tr. 7391-93 (Yodice); see 
also Tr. 6715-17! (Forman)..

Moreover, the CDA's general record o£ administering the 
Section 8 Existingr Program was so poor that^ HUD made repeated 
efforts from 1979 to 1981 to persuade the City to transfer the 
program (together with what remained of the Section 23 Leased 
Housing program) to the MHA, even at one point conditioning an 
award of Section 8 certificates upon the transfer. GX 1104.70, see 
also GX 1104.68, GX 1104.72; Tr. 7142-43 (Abrams). Yet, the City 
strenuously and successfully resisted the transfer, arguing to HUD, 
inter alia, that the CDA was "more responsive to the elected 
officials of the City." GX 1125.8, at 32,234; see also GX 1125.4 
through GX 1125.7.

City officials were well aware of the possible 
consequences of failing to comply with HDD's wishes. CDA official 
Joseph Pacitto warned the City Manager in 1979 that if the transfer

19̂ 7



was not effected the City was risking the loss of a significant 
amount of future federal housing assistance, a loss he contended 
would be

tragic and unfortunate. When you consider that 
there is a waiting list of over 800 people requiring Section 8 Existing Housing assis­
tance, we will be denying these people what 
they deserve and desperately need.

GX 1125.5. Yet, the City Council defeated the legislation
necessary to effect the transfer by a vote of ten to two, GX 1125.7,
and even subsequently passed a second resolution affirmatively
opposing the transfer. GX 1125.8^ at 32j222.

In addition, when the MHA itself applied to HUD in 1981
for 105 Section 8 Existing Certificates (fifty-seven for families;
forty-eight for->senior citizens)', the City strongly objected. GX
1125.9 through GX 1125.13. The City Council passed a resolution
declaring that the MHA*s authority to provide^low-income housing
assistance was limited to senior citizens, and in its S 213(a)
review of the application, City Manager Fox notified HUD that the
City "disapprove[dl■ the MHA's application based upon the "policy
directive" reflected in the City Council's resolution. GX 1125.12,

The City's actions with respect to the Section 8 Existing
Program are inexplicable except by reference to the anticipated
race of the certificate holders. Throughout the years in question
there was-a serious (and indeed, in the words of at least one City
official, "desperate") need for Section 8 Existing Certificates for
families as well as senior citizens. GX 1125.5; see also, e.g.,
Tr. 10,469-71 (Yost); C-1086 through C-1091. In addition, the
certificates were a form of assistance that Imposed no financial



burden on the City. No tax abatement was required, as in the case 
of most subsidized housing projects, and included with the grant of 
the certificates were funds payable to the City for the cost of 
administering the program. Tr. 2853 (Arcaro). Moreover, like the 
Section 23 Leased Housing Program, Section 8 Existing Certificates 
offered a way to disperse low Income housing without adding to the 
density of a neighborhood (as a subsidized housing project might) 
and without raising any other real or Imagined physical planning 
problems.

Yet, for three years, the City refused entirely to apply 
for Section 8 Existing Certificates for families; failed to use 
many of the certificates eventually applied for; failed to make 
any significant efforts to promote their use outside Southwest 
Yonkers; sought ? to conceal from HUD the extremely limited 
geographic scope of its outreach efforts; resisted efforts by HUD 
to transfer the program to an agency perceived by the City to be 
less "responsive to elected City officials"; and opposed the 
efforts of that agency to obtain certificates on its own.

In pursuing, those actions, the City consciously forfeited 
badly needed federal housing assistance, consciously risked even 
greater forfeitures of federal assistance, and consciously avoided 
an opportunity ta lessen the severe concentration of subsidized 
housing and minorities that existed (and exists today) in Southwest 
Yonkers.

The various attempts the City has made to explain its 
actions on race-neutral grounds are plainly inadequate and at 
variance with the record. The City has contended, for example.



that the City Council insisted on a Year I application of 100 
senior citizen certificates because it had determined the need for 
senior citizens to be "more compelling." However, there is no 
evidence that this was the basis of the Council's actions, and 
considerable evidence to the contrary. Moreover, the City's 
explanation fails to explain why an application for fifty senior 
citizen certificates (and none for families) was the acceptable 
"back-off alternative." GX 1104.19.

Nor can that alternative be explained by a belief among 
the Council that no need existed for families. There is no 
evidence that any councilmember held such a belief, and the City's 
own HAPS, as well as the testimony of its planners and other 
officials make clear that such a need indeed existed. See, e.g., 
GX 1125.57 C-1086 through C-1091; Tr. 2844-53 (Arcaro); Tr. 
10,469-71 (Yost).

Equally unsupported in the record, and equally 
implausible, is the City's suggestion that the City Council 
declined to participate in the Section 8 Existing program for 
families because it "recognized that HUD's rent guidelines were 
inadequate to attract" landlords^ of units large enough for 
families. The testimony and memorandum of HUD's Area Economist 
Paul Bannett, upon which the City heavily relies, establishes no 
more than that Bannett told his colleagues at HUD that the City's 
failure to apply for Section 8 Existing Certificates for families 
would be entirely indefensible but for the then-current 
inadequacies in the program's rent schedule. See Tr. 6262 
(Bannett); C-1291. Such evidence may explain why HDD did not

I'iO



exert more pressure on the City to apply for the certificates. 
(Although in that respect it must be evaluated together with HUD's 
troubling willingness to accommodate "councilmatic qualms" about 
the mobility which the certificates gave to recipients of housing 
assistance. See GX 1104.19.) But that evidence in no way suggests 
that concerns about inadequate rent schedules motivated the City's 
actions. In addition, it is hard to believe that such a concern 
would have militated against accepting housing assistance that was 
readily available and cost-free to the City.

Nor can we accept the City's suggestion that rent 
schedules alone explain the current distribution of Section 8 
Existing certificates in Yonkers. Even if the current 
concentration of certificates in the Southwest were largely 
attributable to the greater number of apartments there that are 
within the program's price range (and on that point the record is 
unclear) , rent schedules do not explain why it is that the only 
certificates in use outside Southwest Yonkers are held by whites.

When City officials first learned about the Section 8 
Existing program, they expressed concern that it would "wrest[] 
away" the local control enjoyed under the S 23 leased housing 
program (in which City officials selected the buildings the tenants

n »

would live in>. GX 1104.1; see also GX 1104.11. And early 
consideration was given to the prevention of its use in East 
Yonkers by "problem families.” GX 1176.23. The events described 
above make abundantly clear that the families who represented a 
"problem" to the City Council were minority families, and that (at 
the behest of the City Council) the City initially resisted

\ '5 \



participation in the program because it gave minority families the 
potential ability to relocate to East Yonkers. The record also 
strongly suggests that when it was clear this potential ability 
could not, in all likelihood, be realized without significant City 
assistance, the City intentionally withheld the assistance needed 
to enable the program to serve as a tool for integration, and 
resisted efforts to transfer the program to an agency that might do 
otherwise.

Even if no other evidence of discriminatory actions were 
available with respect to the post-Riverview period, the evidence 
concerning the Section 8 Existing program alone would be sufficient 
to satisfy plaintiffs' burden of proving that the pattern and 
practice of discrimination evident in previous years has continued 
up to (and indeed past) the filing of the present action. However, 
the Section 8 Existing program is by no means the only evidence 
available in this regard.

C. Section 8 New Construction Housing for Senior Citizens
1. The City's Actions
The City's actions with respect to the location of 

Section 8 new construction housing for senior citizens provide 
additional evidence that the pattern of previous years continued. 
Here, too, initial efforts by the City's planners to disperse the 
housing were opposed by the City Council.

In explaining the designation of East Yonkers for new 
construction for senior citizens, the Year I (1975) HAP noted that 
97% of the City's subsidized housing was located in Southwest



Yonkers, and that choosing East side sites would "minimize
relocation, and offer greater selectivity in housing
accommodations." C-1086 at 25,053. The HAP also stated that:

West Yonkers locations would be acceptable 
only if very favorable design, locational and neighborhood impact considerations could be 
demonstrated. Developers must be aware that solicitation for Section 8 subsidized new con­
struction outside the East Yonkers areas must 
have the most compelling of design, locational 
and neighborhood arguments in order to be 
placed into consideration.

Id. (emphasis in original).
Three months after the Year I HAP was submitted, however, 

the City Council passed a resolution purporting to amend the HAP to 
specifically include a proposed site on Highland Avenue in 
Southwest Yonkers^ and directing^ that the resolution be forwarded 
to HUD. 6X 1112.5; 1112;9. When HUD nonetheless appeared
reluctant to process the proposal^ DOD Director Alphons Yost sent 
HDD another copy of the Council resolution "to reaf^rm the 
intention of the City Council to recommend that [the Highland 
Avenue site] be approved." GX 1112.10. Yost's letter also 
"reminded" HUD that the City's Year I HAP "allows for Section 8 
developments in unspecified areas of West Yonkers" but omitted to 
mention that the HAP also stated that such sites were to be 
considered only upon "the most compelling of design, locational and 
neighborhood arguments." C-1086. Yost sent a copy of the letter 
to the would-be developer of the Highland Avenue site, stating that 
the City would immediately initiate and process a [formal] 
amendment to the Year I HAP and "guarantee[ing] that the Year II 
HAP would 'specifically include' the Highland Avenue site," as

\'i'b



indeed it did. GX 1112.11; C-1087.
The City's strong support of the Highland Avenue site was 

by no means a response to "the most compelling of design, 
locational and neighborhood arguments" in its favor. When the 
developer first approached DOD Director Yost with his proposal, 
Yost discouraged him, explaining that it was DOD's goal to disperse 
subsidized housing through East Yonkers. GX 1112.1. Yost 
simultaneously conceded, however, that DOD "had a long way to go 
before that became the.City pollcviJ*-- id>, and the developer (thus 
alerted) successfully appealed to Mayor Martinelli for support. 
See, e.q., GX 1112.1; 1112.5; 1112.11. The subsequent support
came despite a highly negative review of the proposal by the City's 
planners, see GX 1112.3, and the site's inclusion in the Year II 
HAP was, according to an internal City memorandum written by Yost, 
"dictated by [the] City Council." GX 1190.10.

Nor was the City Council's influence limited just to the 
addition of the Highland Avenue site. In that same memorandum, 
Yost observed that "[slince we seem to be lacking in support for 
senior citizen's developments in East Yonkers, I believe a review 
of other appropriate sites in West Yonkers would be appropriate." 
Id. Accordingly, the Year II (1976-77) HAP listed four acceptable 
Southwest sites and deleted the language requiring the "most

rcompelling of arguments" before a Southwest site would be
considered. C-1087. The unsurprising result has been that all of
the Section 8 new construction projects for senior citizens that
were built during this period (including several projects strongly

52/criticized by the City's planners) are in Southwest Yonkers.— '



The history of Midland Mews, a proposal rejected by the 
City in 1975, suggests the extreme degree to which support was in 
fact lacking for east side sites, and also confirms that (as in 
previous years) race was a factor in that lack of support.

The Midland Mews proposal, which would have provided some 
forty units of housing for senior citizens on Midland Avenue in 
East Yonkers, was presented to the City at a meeting between the 
developer, the architect, and City planning officials in January of 
1975. GX 1113.1. In a memorandum to the files written several days 
later, Lawrence Blumenthal, Deputy Development Planning Director, 
noted that the proposal had been well received by City planning 
officials:

The^housing ... is properly scaled; in its jux-  ̂
taposition next to single family homes. It makes a fine transition from a S-50 [single­
family] to a B [business] zone. The building will require minor variances for parking —  to 
allow ten percent*parking as is customary for 
the Elderly rather than 150 percent as re­
quired, and a reduction in the allowable square feet per unit. Pistone believes these requests 
are justified.

The Planning Branch [of DOD] and the Plan­
ning Bureau [headed by Pistone] agree that the 
site is well suited for housing for the Elderly 
vis-a-vis public transportation, shopping, 
recreation, etc. as well as its location in the 
eastern half of the city.Id.
Despite the views of the City's planners, however, the 

Zoning Board of Appeals twice denied the necessary parking variance 
at meetings attended by area residents who spoke against the 
project.

Most of the objections raised had little to do with the 
number of off-street parking places provided for in the proposal.

l?)5



At the first session in June of 1975, when the issue finally came up 
for discussion at 1:00 A.M., area residents made clear that they 
were opposed to the entire idea of the project. GX 1113.4; GX
1197.2. One neighborhood spokesman contended, for example, that 
the project was simply "incongruous with the character of the 
neighborhood, like wearing a high hat and turtle-neck sweater at a 
formal ball." GX 1197.2, at 53. He also contended that traffic 
congestion was inevitable, claiming that while a bus line was 
nearby, every one in a low-income area "has some kind of jalopie." 
Id. at 415; see also 463-68. Another spokesman raised what the 
City's planners have referred to as the standard litany of 
inadequacies (proximity to shopping, churches, etc.), at 463- 
66, which, judging from the planners' memo on the proposal, had 
little or no basis in fact. GX 1113.1; see also Tr. 2805-08 
(Arcaro).

Comments at the aecond Zoning Board session similarly 
suggested concern with the effect of putting "low income" housing 
(even for senior citizens) in the area. One spokesman from the 
earlier meeting returned and contended that the housing would 
become a "tenement" and create "the seeds of a ghetto," and even 
predicted that "Ashburton Avenue [a heavily black area of the 
Southwest] will probably move up there en masse." GX 1197.3 at 
568-69. Another speaker protested as a "witness for the last few 
years [of] what has been happening in the areas of Yonkers where 
the houses are being deteriorated, [and where there is] more 
crime." at 584. Another also referred to Ashburton Avenue and 
declared that the developer wanted to "build another slum." at

I 5C0



585; see also id. at 590. The area's ward councilman also attended 
the meeting but declined an invitation to speak, saying that the 
Corporation Counsel had advised him the variance would have to be 
passed by the City Council as well, and that he would then "have the 
opportunity to protect [his] constituents through [his] choice on 
the Council." at 592.

One possible explanation for the stated concerns that 
"Ashburton Avenue" would move to the project may be found in the 
fair housing statement which the developer filed with HUD, in which 
he indicated that he hoped to attain a 20% minority representation 
in the project by attracting "[e]lderly blacks and Puerto Ricans 
who are now located in west Yonkers.” GX 1113.2. In addition, 
planner Gregory Arcaro testified th2tt concern was expressed at the 
Zoning Board hearing that the housing might be converted into 
housing for families. Tr. 2808.

In any event, the opposition of City officials likewise 
appears to have had little to do with planning considerations. The 
type of parking variance sought, but twice refused for the project, 
had been and would, continue ta, be routinely granted for senior 
citizen projects in. the Southwest. See, e.g., Tr. 2951-52 (Arcaro) 
(citing St. Casimir's, Father Finian Sullivan Towers, Lane Hill, 
and Monastery Manor as examples). Moreover, the City's planners 
and (at least with respect to the second variance application) the 
City's traffic engineer believed the number of parking spaces 
provided for by the plan was adequate. GX 1113.1; GX 1113.5; Tr. 
2951-52 (Arcaro).

Significantly, the number of parking spaces provided by

137



the plan was not even mentioned by the City in its § 213(a) review 
of the proposal. GX 1113.8. Instead, the City criticized the
project on the ground that it lacked nearby shopping, was adjacent 
to single family homes, was of an inappropriate scale and height, 
and was "undesirable” for senior citizens because of an "unsightly 
car lot" nearby. M .  The City's characterization of the proposal 
thus is directly inconsistent with the conclusions of the City's 
planners as reported in Blumenthal's January memo. Compare GX 
1113.1 with GX 1113.8.

Nor is there any evidence that the planners had 
reconsidered their earlier views. Instead, there is simply a 
memorandum from DOD Director Alphons Yost to planner Gregory 
Arcaro, written shortly after the second Zoning Board meeting,
directing him to "set up whatever meetings you feeltare appropriate

«

to establish the City's position against this particular proposal." 
GX 1113.7 (emphasis added).. At trial, Yost contended that the City 
had not become predisposed against the project, but could offer no 
other explanation for the directive contained in his memorandum. 
Tr. 10,427-28 .(Yoat) ̂  .

2. The Effect of the City's Actions.
The City has argued that under the procedures for funding 

Section 8 new construction proposals, the final decision with 
respect to the proposals was, in any case, HDD's. In this regard, 
the City notes that its negative S 213(a) review for Midland Mews 
was not binding upon HDD, and that HDD was therefore free to fund 
the project despite the City's objections, but independently chose 
not to. Similarly, the City points out that its positive reviews

\3g



for each of the various Southwest proposals submitted to HUD did 
not require HUD to fund those projects. In essence, the City 
argues that its actions were inconsequential.

The argument is unpersuasive for several reasons. First, 
it unreasonably assumes that the City's review had little or no 
effect on HDD's funding decisions. Since the very purpose of the 
statutorily required review is to allow local input in the 
decisionmaking process, it is, as a general matter, unlikely that 
local opposition to a project would carry little weight. See, 
e.q., GX 1112.22. Moreover, as the City itself has emphasized. 
Section 8 funds were scarce, and the competition for them keen. 
Thus, if two or more proposals were competing for the same pool of 
funds (as was the case with respect to Midland Mews and the Lane 
Hill Apartments, a Southwest project supported by the City), it is 
especially unlikely that the'City's support of one and opposition 
to the other would be inconsequential.

In addition, the argument ignores the potential effect of 
a City^s willingness to lobby for a particular proposal. In this 
regard, it is particularly noteworthy that two of the Southwest 
projects constructed during thid period were initially turned down 
by HUD either for lack of funds or on substantive grounds, but 
continued to be strongly supported by the City and were eventually 
approved and funded by HDD. See, e.q., C-1196, C-1197, C-1206 
(Monastery Manor); P-I 134-14, 134-74, 134-104 (St. Casimir's). 
There is no reason to believe that if Midland Mews had been 
similarly supported, it nonetheless would have failed to receive 
funding.

1



Finally, the City's argument ignores the effect of its 
actions on the likelihood that other developers would come forward 
with east side proposals in the future. Midland Mews was supported 
by the City planners; required only a parking variance that had 
been, and would continue to be, granted to Southwest projects; and 
was fully consistent with the Year I HAP's stated goal of 
constructing subsidized housing for senior citizens in East 
Yonkers. Yet, it was rejected by City officials after area 
residents had made their strong and racially influenced opposition 
to the project known. Although the City's negative S 213(a) review 
of Midland Mews sought to assure HUD that it would support a more 
suitable proposal, GX 1113.8, the City's actions surely made it 
more likely that few, if any, other proposals for east side 
projects would be forthcoming. Cf. HOUSING IV.D.2 supra.—

d ; Subsidized Housing for Families Under the HAPs for Years I 
Through IV

The third basic element of the City's Year I (1975-76) 
HAP (in addition to the Section 8 Existing Program and new 
construction of subsidized housing for senior citizens) called for 
meeting the subsidized housing needs of families through the 
rehabilitaiton of existing structures in Southwest Yonkers; no 
goal for new construction was designated. That approach was 
repeated in each of the City's next three HAPs as well. C-1087 
through C-1089.

Although no explanation is offered in the HAPs for the 
decision to limit new construction to the construction of 
subsidized housing for senior citizens, the City has offered a

\40



number of reasons in support of that decision. First, the City 
suggests that the decision to meet family housing needs through 
rehabilitation was consistent both with the purposes of the HCDA 
(which encourages rehabilitation of existing structures) and with 
its own efforts to rebuild Southwest Yonkers. In addition, the 
economics of housing construction are said to militate in favor of 
new construction for senior citizen housing and rehabilitation of 
existing structures for families.— '̂ Finally, the City contends 
that both its own planners and HUD's Area Economist Paul Bannett 
determined that in view of the large number of family housing units 
constructed in the preceding years, and the large number of 
vacancies in those units, new construction of subsidized housing

- »u  > I I 1 • 'llfor families was ill-advised.
With respect to the lattermost point, however, Bannett 

testified that he was unaware that the vacancies in question were 
being artificially maintained in an effort to attract white 
tenants. Tr. 6091-96, 6120-21; see HOUSING IV.D.5 supra.
Moreover, former City Planner Gregory Arcaro testified without 
contradiction that none of the City's planners construed those 
vacancies as a sign that there was an oversupply of family housing 
units on the market* Tr. 3140-43 (Arcaro). In addition, each of 
the City's HAPs for the years in question indeed shows a 
significant need for housing assistance for families in Yonkers. 
C-1086 through C-1089. Thus, to the extent the City is suggesting 
that a lack of need led to the lack of new construction for 
families, we find the argument unpersuasive.

None of the remaining reasons cited by the City for its

/HI



decision to focus on rehabilitation instead of new construction, or 
a combination of the two, is implausible. However, those reasons 
leave the picture somewhat incomplete. As an initial matter, it is 
clear that in light of the extreme concentration of subsidized 
housing in Southwest Yonkers, and the heavily minority occupancy of 
that housing, any additional construction of new subsidized housing 
in Southwest Yonkers was precluded. Only rehabilitation could be 
limited to the Southwest. C-1086; see also HOUSING V.C.5 supra. 
Thus, the alternative facing the City was not simply a choice 
between new construction or rehabilitation but also one between 
Southwest and East Yonkers as the location for future subsidized 
housing for families.

In addition, although one major goal of the HCDA is 
indeed, as the City notes, to encourage rehabilitation of existing 
structures, another is to encourage dispersal of housing 
opportunities for minorities. See HOUSING V.A supra. The strategy 
adopted in the City's HAP did little to further that latter goal, 
and it did even less once the Section 8 Existing Program for 
families had been deleted. Indeed, no other housing strategy could 
have been significantly 1«ore segregative.— ^

Especially’ iW light of the City's past practice of 
discrimination in the selection of sites for subsidized housing, it 
seems unlikely that this effect was unintended. In addition, there 
are two other factors which further suggest that it was not. 
First, there is credible evidence that those who developed the Year 
I HAP believed that the City Council would be unwilling to support 
the placement of subsidized housing for families in East Yonkers,



and thus chose senior citizen housing as the vehicle for addressing 
h u d's concern that the City promote the dispersal of subsidized 
housing opportunities. See, e.g., Tr. 2845-46, 2855-58, 3133-38 
(Arcaro); GX 1112.4; see also Tr. 10,447-48 (Yost).

In addition, the subsequent fate of the Section 8 
Existing Program and of the HAP's stated preference for east side 
sites for new senior citizen housing suggests that that belief was 
well-founded. Indeed, in light of the City Council's demonstrated 
lack of support for subsidized housing in East Yonkers, even when 
limited to senior citizens, and its opposition to participation in 
the Section 8 Existing Program for families, we find it virtually 
impossible to conclude that the City's four-year long failure to 
support new construction of subsidized housing for fcunilies was 
entirely race-neutral. Instead, that failure seems clearly to be a 
continuation of the City's longstanding practice of excluding 
subsidized housing from East Yonkers based, at least in part, upon 
the race of the anticipated occupants.

E. The Palmer Road Site
In 1979, for the first time since the approval of the 

Curran Court in 1963, the City Council approved a site for 
subsidized housing that is east of the Saw Mill River Parkway. 
Like Curran Court, the site approved on Palmer Road between Millard 
and Ellison Avenues was for some 45 units of senior citizen 
housing. The project was not a Section 8 new construction 
proposal. (Despite four years of listing East Yonkers as an 
appropriate area for Section 8 new construction for senior

l4'3



citizens, the City still had yet to support an east side proposal.) 
Instead, the Palmer Road site was proposed, along with a site on 
Willow Street in Southwest Yonkers, by the MHA for public housing 
for senior citizens. Both sites were approved by the City Council 
in the summer of 1979. GX 1118.34; GX 1118.45.

The site selection efforts that culminated in the 
approval of the Palmer Road and Willow Street sites began in 
December of 1978. In response to a sizable waiting list for Curran 
Court, the MHA resolved to look into the possibility of building 
additional public housing for senior citizens, noting however, that 
an obstacle to doing so was the difficulty of finding ”a site in the 
eastern section of [the] City that would meet the approval of the 
local legislative body." GX 1118.2.

In March of the following year, the Board of the MHA 
approved an application to HUD for the reservation of 100 units of 
public housing. GX 1118.3. The City Council approved the 
application on the condition that it be limited to public housing 
for senior citizens, and also approved a Contract of Cooperation 
with the MHA that was likewise limited to senior citizen housing.r
GX 1118.5; 1125.2; 1227. The MHA submitted the application to HUD, 
indicating that no sites had yet been selected but that they would 
be outside existing areas of minority concentration. GX 1118.7.

The following month, in April of 1979, the MHA approved 
three sites for the 100 units of housing. GX 1118.8. Two of the 
sites —  Palmer Road and Boyd Place at Bronxville Road in Northeast 
Yonkers —  were approved unanimously. Id. The third site — Willow 
Street in Southwest Yonkers —  was approved by a vote of four to



three, with its opponents contending that the area was already 
"oversaturated" with subsidized housing for senior citizens. Id.; 
GX 1118.12. Shortly after the Boyd Place site was approved, 
however, the owner placed lumber on the site, and applied for 
building permits to construct single-family homes. GX 1118.18; 
1118.20; 1118.17. Upon learning of the issuance of the permits, 
the MHA withdrew the site. Id.

On May 1, 1979, the Planning Board held a hearing to 
consider the Willow Street and Palmer Road sites. No opposition 
was voiced to the Willow Street site, and it was approved 
unanimously. GX 1118.18. The Palmer Road site, however, proved 
more controversial. During a lengthy, and at times heated, 
discussion between area residents and City officials, objections 
were raised witfî  respect to the inadequacy of parkirig in the area, 
the site's distance from shopping facilities, and its location in a 
floodplain. Area residents insisted they were not "anti-senior- 
citizen" or (as Emmett Burke of the MHA suggested) "anti-public- 
housing", but simply concerned about the suitability of the site. 
Id. The Planning Board voted unanimously to defer action on the 
site.

Sev^eral days later, in a letter to the President of the 
Longvale Homeowners Association, who had spoken against the project 
at the Planning Board hearing, the Reverend E. Roy Burchell of the 
West Center Church in nearby Bronxville acknowledged the "risk" 
that the project might cause "the complexion of [the! community to 
change somewhat" by bringing in outsiders, but nonetheless urged 
support for the project. GX 1118.23. A copy of his letter was sent

\ ^ S



to the Planning Board. On May 14, the Planning Board voted
four to one to approve the site. GX 1118.26.

On June 12, the City Council approved the site as well 
(together with the Willow Street site), but not without a long and 
heated public hearing. GX 1118.32; 1118.34. Speaking in favor of
the site, Emmett Burke of the MHA called upon the City Council to 
break down "the invisible wall between east and west Yonkers," and 
argued that HUD wanted senior citizen housing to be built
throughout the City and would no longer agree to building only in 
West Yonkers. GX 1118.32. Numerous senior citizens spoke in favor 
the site as well. However, numerous East honkers homeowners, and 
ward councilman John Hanney, spoke against the site, arguing that 
there had been an absem:e of community imput in selecting the site 
and that other sites were available.- Burke replied that other 
sites, including some suggested by Hanney, had in fact been
considered, but that Hanney- had "played games” with sites,
"withdrawing them as fast as [he] suggested them.” j^. Several
hours after the session had opened, the Council voted nine to
three, with one abstention, to approve the, site. All three
opposing votes, as- well as the abstention,-^-came from east side 
counci Imembers.

Within a week of the Council's vote, however, the owners 
of the Palmer Road site filed suit to challenge the legality of the 
Planning Board approval, contending that insufficient public notice 
had been given. Upon the advice of the City's lawyers, the
Planning Board scheduled another hearing. GX 1118.35; 1118.39.

On the day of the hearing, some seventy East Yonkers



residents appeared to speak against the Palmer Road site. The 
residents contended that the site was unsuitable for senior 
citizens because of its distance from shopping and other 
facilities; because of the limited availability of public 
transportation; and because the neighborhood was noisy and unsafe. 
GX 1118.39; 1118.41.

Past and present MHA Board members in attendance at the 
meeting made clear they considered the objections pretextual. One 
noted that "no one ever asked about transportation for the senior 
citizens as long as we were building in a neighborhood that they 
didn't live in," and suggested that there was an "unspoken, concern" 
that minorities would move into the project. Another said the 
"heart of [the] opposition" is simply that the residents don't want 
public housing in their neighborhood. Id. Another characterized 
the objections as the' sort of "lame excuses” always raised to 
subsidized housing. One opponent explained in reply that they 
were "not uncompassionate people" or "aristocratic snobs," but were 
"just suggesting that there are alternative sites in the area that 
should be considered." The Planning Board deferred action on 
both the Palmer Rbid and Willow Street sites—  the latter at the 
request of MHA Chairman Emmett Burke, who contended that HUD was 
not likely to approve Willow Street unless Palmer Road was offered 
as well. Id.

A second Planning Board hearing was held the following 
week, at which time the Board voted to approve the Palmer .Road 
site. A City Council hearing and re-approval followed several days 
later. GX 1118.42-1118.44; 1118.48. These hearings, as well, were



marked by long and heated debate about the Palmer Road site. Id. 
The issue of race^ alluded to in previous hearings, arose again as 
Antonio Lombardi, Chairman of the Housing Committee of the Yonkers 
NAACP, urged the approval of Palmer Road and other sites in East 
Yonkers. GX 1118.42. Lombardi contended that scattered site 
housing was "long past due," and suggested that the past failures 
to approve scattered sites reflected "a concerted effort to create 
segregated neighborhoods" in Yonkers. W. William Gibson 
expressed a similar view, recounting his experiences as a member of 
the UDC-CAC when efforts were being made to find scattered sites 
for UDC Projects. "Racism and ignorance are still alive," Gibson 
declared, "sites have been offered and withdrawn ... offered, then 
withdrawn, and we are still playing the same game." Id.

Meanwhile, area residents continued to offer various and 
even (as Emmett Burke observed) contradictory objections to the 
site. Palmer Road was declared unsuitable by some because of its 
location in a floodplain, and by others (including the owner of the 
site and ward councilman Hanney) because of its value as a "prime 
builcfing site." GX 1118.43; 1118.48. Nor did the opposition end 
with the Council's reapproval of the site. The owner subsequently 
attempted to- obtain' building permits for a 50-unit private 
development, GX 1118.50, and the Longvale Homeowners Association as 
well as a number of individual residents maintained a steady 
correspondence with HUD, protesting various aspects of the approval 
process and challenging the merits of the site itself. See 
generally GX 1118.

Others, however, wrote to HUD in support of the proposal.



contending that the concentration of subsidized housing in 
Southwest Yonkers represented "racial and economic segregation ... 
practiced ... by the city with the aid of the federal government." 
GX 1118.83; 1118.85; 1118.89; 1118.99. The City Manager
likewise wrote to HUD in support of the project, asking that it 
receive the "highest priority" for processing. GX 1118.71.

In one letter, Emmett Burke explained that "fear of 
public housing” had provoked opposition to Palmer Road, as it had 
in the past with respect to many other East Yonkers sites, and he 
urged HUD to assist the City "in crushing the wall that keeps 
public housing out of the east section" of Yonkers. GX 1118.57. In 
another letter written several months later, urging HUD to approve 
a particular method of construction^ for Palmer Road, Burke reported 
that: The Justice Dept, has made a public issue of 

the concentration of public housing in the West 
section of our City. This action has made 
segregation an open and serious problem. This 
problem has existed for some years and is now a 
public issue. The minorities are keeping a close watch on developments on the Palmer site, 
and confer with us regularly.

GX 1118.115. As of the end of trial, the Palmer Road project was 
under construction.

The City places considerable emphasis on the approval of 
the Palmer Road site, contending that it proves that it was not 
impossible to obtain City Council approval of an East Yonkers site 
for subsidized housing, and that sites could be approved despite 
the opposition of the councilman for the ward in which the site was 
located.

However, the circumstances surrounding the approval of



Palmer Road scarcely negate the existence of a pattern established 
over the course of thirty years of site selection. Nor, for 
several reasons, can the approval of Palmer Road be viewed either 
as a complete or a permanent departure from that pattern. First, 
in light of the proposal's status as senior citizen housing, and 
the evidence showing a continued pattern of discriminatory actions 
with respect to the Section 8 Existing Program, see HOUSING V.B 
supra, the approval of Palmer Road cannot be viewed as evidencing 
an abandonment of the pattern of racially influenced opposition to 
the placement of subsidized housing for families in East Yonkers. 
In addition, subsequent events make clear that the pattern was not, 
in fact, abandoned.

P. Actions Subsequent to the 1980 Contract Conditions
The activity of the Justice Department mentioned in 

Emmett Burke's letter of August, 1980 referred to indications that 
a lawsuit was being contemplated against the City of Yonkers, and 
to the Department's involvement in HDD's decision in June of 1980 
to impose conditions upon the City's receipt^of its Year VI CDBG 
funds. The most significant of those conditions, required the City 
"to take all actions, within its, control to provide for the 
construction of 100 newly created units" of subsidized housing for 
families "located outside of areas of minority concentration." GX 
1140.1. The number of units represented the goal which was 
designated in the City's Year V HAP (the first such goal designated 
by the City) and which the City had made no progress toward 
implementing.

160



In the two years following the imposition of the 1980 
contract conditions, the City Council failed to support a single 
site for subsidized housing for families. One site actively 
supported by the City's planners was strongly lobbied against by 
newly elected Mayor Gerald Loehr and opposed by the City Council. 
In addition, with respect to two other sites designated as likely 
sites for subsidized housing, actions l̂aving the effect of 
rendering the sites unavailable for subsidized housing were taken 
or attempted by the City Council. And at least with respect to one 
of the sites, that effect was clearly intended.

1. Salisbury Gardens
In May of 1980, a proposal was submitted to HUD for the 

development of Salisbury Gardens, a Section 8 new construction 
project ont Salisbury Road and Sadore Lane in East Yonkers. GX
1132.4. As originally proposed, the project was to consist of 
eighty units for senior citizens and twenty units for families; the 
planned number of family units was increased to forty-two in July. 
GX 1132.8.

The site was in a census tract specifically designated 
for new construction- in the City's current HAP, and properly zoned 
for the project. GX 1132.4; 1132.8; C-1090. In addition, since 
the site was owned by the proposed developer, and since the 
developer planned to perform some of the contracting work himself, 
no tax abatement was required in order to make the project 
financially feasible. Tr. 1600 (Walsh). Moreover, as the 
developer's attorney pointed out to City officials, the project 
could be offered in partial satisfaction of the newly imposed 1980

16 \



contract conditions. Tr. 1628-29 (Walsh).
The initial reaction from City officials was highly 

positive. The City Manager Engene Fox advised HUD by letter in 
July that the City "endorse [d] and support [ed] the proposal, and 
urged "expeditious approval" of the project, noting that it was in 
conformity with the City's HAP; that the proposed developer had 
"excellent reputation"; and that the project could be developed 
"'as of right' without any further City approvals." GX 1132.7.

Less than a week after Fox's letter was mailed, however, 
h u d's Housing Division received a telephone call from a "very 
upset" Edward Fagan, the councilman for the ward in which the site 
for Salisbury Gardens was located. GX 1132.12. Fagan told HUD 
that the project was "in the backyard of the local democratic 
leader" and "next to a large and well-organized apartment 
building," and he asked HUD to send him a copy of the proposal, 
saying that he felt he would have difficulty obtaining it through 
the City Manager's office. Id.

Over the next six weeks, growing opposition to the 
project was expressed by area residents and City officials, and 
communicated to HUD. The Northeast Homeowners/Tenants Association, 
for example, met with Councilman Fagan and sent a letter to HUD 
registering their "strong objection" to the project. P-I 268-16. 
Mayor Loehr wrote to HUD as well, contending that the project would 
"adversely impact[] the quality of life in this established 
residential area." GX 1132.23. Loehr also sent a mass mailing to 
area residents expressing his concern about the "unacceptable 
burden" the project would impose on the neighborhood. GX 1132.21;



1132.25; 1132.26. Loehr's letter included the name and address of 
the Area Manager of HUD and urged area residents to "express 
[their] concerns" to him about Salisbury Gardens. Id.

On September 2, the City Council held a public hearing on 
the project. The hearing, which was advertised by flyers urging 
residents to "Be there 1 ...Show your concern.. .Stop them nowi", was 
well-attended by area residents who spoke against the project. GX 
1132.29; 1228. Various counciImembers spoke strongly against the 
project as well, frequently eliciting applause and cheers from the 
audience. GX 1228, at 45-80. Councilman Fagan, for example, 
declared that:

The people in Sadore Lane don't want good 
works. They want results.^ They want to see 
this application turned down. They want to 
save their neighborhood. They don't want to 
flee again.

Id. at 75-76. East side councilmen Nicholas Longo and Michael 
Cipriani, both strong opponents of putting subsidized housing in 
East Yonkers, see HOUSING V.F.3 infra, similarly declared that the 
City Manager "better damn well find a way to tell HDD that we don't 
want this," j^. at 70 (Longo), and urged the Mayor and every 
councilmember "to support and hear what the constituents of the 
tenth ward are saying." at 72 (Cipriani). At the close of 
discussion, a resolution was unanimously adopted stating the City 
Council's opposition to the project, directing the City Manager to 
withdraw his letter of support, and directing the City Clerk to 
send a copy of the resolution to HDD. GX 1132.30.

HUD continued to process the project, but a virtual 
moritorium was placed on Section 8 funding soon after the



proposal's submission, and despite extra efforts by some HUD 
officials to obtain funds for the project, P-i 268-30A, it was not 
funded.— /

2. The Neustadter Site
A few months later, the City submitted to HUD, in partial 

compliance with the 1980 contract conditions, an inventory of 
fourteen- sites that were outside of areas of minority
concentration. GX 1140.9. All fourteen were east of the Saw Mill 
River Parkway. Most would have required a zoning change in order 
to be used for subsidized housing. Planning Director Pistone 
privately expressed the opinion that with the possible exception of 
a site on Trenchard Street (the School 4 site), there was virtually 
no chance that the necessary zoning changes would be approved. GX 
1132.45; Tr. 1642-44. (Walsh).

HUD reviewed the sites and notified the City in April of 
1981 that only three sites "appeared to be free from substantial 
impediments to the feasible development of housing." GX 1140.23; 
see also GX 1140.16; 1140.18; 1140.29. The three sites were the
School 4 site; the Neustadter site at McLean and Central Park 
Avenues; and 1919 Central Park Avenue. HUD asked the City to 
provide within thirty daysi a description of the steps necessary to 
make the sitesavailable for subsidized housing. GX 1140.23. That 
same month, the City Council voted to approve the City's Year VII 
CDBG application, but only after the deletion of any expressions of 
intent to promote the placement of subsidized housing in East 
Yonkers. See GX 1229, at 85-128.

In May of 1981, the City replied to HDD's inquiry, saying

iS 'f



that with respect to the Neustadter site, a petition was at present 
before the City Council to change the zoning to allow commercial 
use; that the School 4 site was at present still held by the Board 
of Education, and that "no schedule [had] been established" for its 
transfer to the City; and that on November 25, 1980 (three weeks 
after the list of sites had been sent to HUD), the City Council had 
rejected a petition to change the zoning of the third site, 1919 
Central Park Avenue, to high density residential use, the result of 
which was that a new zoning petition could not be submitted for 
consideration except upon a three-quarters vote of the City 
Council. GX 1140.29.

Shortly after the City's May 1981 letter, the City 
Council approved the zone change permitting commercial use on the 
Neustadter site. GX 1140.̂ 43. The use of the site had been 
publicized as presenting a ,choice between a "shopping center or 
low-income housing," with ward councilman Cipriani publicly stating 
that his vote would be guided by his constituents. GX 1117.10. 
During the same public discussions. Mayor Loehr stated the federal 
government was pressing the City to develop subsidized housing in 
East Yonkers, that it could not at present "compel" the City to do 
so because of existing zoning patterns, but that in view of the 
litigation pending in court (a reference to the present action, 
which had been filed in December of 1980) he could not speak for the 
future. Id. Both Councilman Cipriani and Councilman Longo took 
credit in a subsequient election campaign for having blocked 
subsidized housing on the Neustadter site by voting for the 
Waldbaum's development. Tr. 7801-13 (Longo); GX 1302.10. The



following year, beginning in March of 1982, efforts were made to 
sell School 4 for private development as well.

3. School 4
School 4 was one of seven schools closed by the Board of 

Education in 1976. See SCHOOLS IV.A.3.b infra. The site was zoned 
"M" at the time of the school's closing, permitting multi-family 
residential development, and in an April 1976 memorandum regarding 
possible re-uses of the closed schools. Planning Director Philip 
Pistone recommended that the school be converted into apartments. 
GX 1187.2. However, the Board of Education did not return the 
school to the City until 1982, and for the intervening six years 
the school remained vacant, with the cost of its annual upkeep 
estimated at $40,000 to $50,000.^ Tr. 7542-43 (Martinelli); see 
also SCHOOLS V.E.3 infra.^

Between 1976 and 1979, several companies expressed inter­
est in the school for commercial re-use. VSP Co., a video software 
manufacturer, offered $250,000 for the school in 1978, but was 
encouraged by Mayor Martinelli to purchase School 7 instead, which 
had been returned to the City soon after its closing in 1976. VSP 
Co. followed the Mayor's advice and purchased School 7 for $10,000, 
with the City agreeing to provide $100,000 worth of renovation. Tr.
7516- 21, 12,342-43 (Martinelli). Martinelli, who had campaigned 
strongly against the closing of School 4, testified that he still 
harbored hopes at the time that the school would be reopened. Tr.
7517- 18 (Martinelli).

Then, beginning in the summer of 1979, School 4 began to 
be discussed as a possible site for subsidized housing. A

l5u>



committee formed by Councilman Hanney to investigate alternative 
sites for the public housing scheduled for Palmer Road offered 
School 4 as one possibility, but the suggestion was rejected by 
Emmett Burke of the MHA on the ground that City Council members had 
expressed a "preference for private development" of the site. GX 
1118.117. Soon thereafter, in September of 1979, Ward Councilman 
Cipriani and Twelfth Ward Councilman Longo, whose own ward ended a 
few yards away from School 4, petitioned for a change of zoning for 
the site from "M" (multi-family) to "T" (two-family houses) —  a 
petition that was characterized by at least One Planning Board 
member as intended to "give the community some peace of mind." GX
1170.5. The Planning Board unanimously recommended against the 
change on the grounds that“ "multifamily residential" was the best 
classification for the site, and that any "downzoning" might 
diminish the potential sale price to the City, P-I 199-31. 
Nonetheless, the City Council unanimously approved the zoning 
change. P-I 199-35.

The effect of the change was to require any developer who 
sought to use the property for a purpose other than two-family 
homes to apply to the Zoning Board for a variance, or to the 
Planning Board and City Council fdr re-zoning. The change had no 
effect on commercial developers (who would have faced the same 
course with the original zoning in place) , but it did have the 
effect of preventing an "as of right" development of a multi-family 
residential building.

In August of 1981, in response to an inquiry from HUD 
about the specific steps the City was taking to facilitate the

161



development of subsidized housing, the City reported with respect 
to School 4 that the Board of Education was "somewhat hesitant 
about relinquishing property under its control while the current 
litigation is taking place," but that the City was "actively 
encouraging" the Board to do so "in an effort to allow future 
development of rental housing." GX 1140.43. In addition^ the City 
reported that it had recently informed two minority developers of 
the nationwide set-aside of 1,500 subsidized housing units for 
minority contractors and "encouraged them to solicit some of these 
units [for] sites within the City of Yonkers." Id.

In a letter written two weeks earlier, however, to a 
minority contractor who had responded to the City's announcement, 
the CDA merely referred the developer to HUD for the necessary 
information about minority set-asides, and noted that the City had 
received "preapproval" of three out of fourteen sites submitted to 
HUD but that one was to be developed by Waldbaum's; another would 
require a three-quarters vote of the City Council before a zoning 
change could be considered; and the third was "still in the 
possession of the Yonkers Board of Eduction.” GX 1140.41. No 
mention was made of the City's on-going "active encouragement" of 
the Board to release the site to make it available for subsidized 
housing.

Indeed, despite the City's representations to HUD that it 
was actively attempting to effect the expeditious transfer of the 
school, see, e.g., GX 1140.43, Tr. 8577-80 (Miecuna), the only 
evidence of such efforts relate to the City's rapid response to a 
proposal to develop the site with luxury housing.



On March 16, 1982, a representative of a developer wrote 
to City Manager Sal Prezioso expressing interest in the site. GX 
1170.9. Two days later, Prezioso forwarded the correspondence to 
Superintendent of Schools Joan Raymond, asking for a response at 
her "earliest convenience." GX 1170.10. Less than a week later, 
Raymond replied that the matter was before the Board's Facilities 
Committee and that she had "strongly recommended" that the Board of 
Education take action. GX 1170.11. In contrast to the minority 
contractor who was merely advised that School 4 was still under the 
control of the School Board, the proposed developer of luxury 
housing was sent a copy of Superintendent Raymond's letter and 
assured by the City Manager that "[a]s soon as matters are brought 
to fruition, we shall be in touch with you." GX 1170.14. Three 
months after the developer had written to City Manager Prezioso 
(and six years after the school had been closed) , School 4 was 
returned to the City. P-I 199-52.

A few days later, the City Council passed a resolution 
creating citizen's committees to study and recommend to the City 
Council the appropriate re-use for Schools 4 and 15 (the latter 
also an east side school closed in 1976). P-I 199-53. At a 
community meeting attended by newly re-elected Mayor Martinelli, 
Ward Councilman Cipriani appointed the School 4 committee's five 
members. All five were white and all five lived in the 
overwhelmingly white neighborhood surrounding School 4. None 
except Walter Forrester, who was subsequently chosen by the group 
as chairman, had any prior experience with development or zoning 
issues. Tr. 7928-29 (Cipriani).

is^



The appointment of a citizen's committe to recommend a 
re-use for School 4 was, as Mayor Martinelli acknowledged at trial, 
unprecedented. Tr. 7546 (Martinelli). The procedure had not been 
used in the past for any of the other closed schools nor, 
apparently, for any other City-owned property. The only roughly 
comparable Instance in evidence was Mayor Martinelli's subsequent 
appointment, in the spring of 1983, of a citizen's committee to 
recommend whether a site in Southwest Yonkers should be sold to the 
Hudson River Association for use as a community center (with the 
investment of approximately $650,000 of the City's COBG funds). 
There, however, Martinelli deliberately chose committee members who 
did not live in the immediate area so that the proposal would be 
evaluated objectively, and four' out of five of the committee 
members chosen lived in East Yonkers. ’ Tr. 7550-52; 12,352-55 
(Martinelli). With respect to the School 4 committee. Mayor 
Martinelli stated simpiy'“ that Ward Councilman Cipriani had
requested that the committee consist of area residents, and that he 
had acceded to that request. Tr. 7551-52.—

The committee was given no criteria by which to evaluate 
proposals, nor was it advised to contact Planning Director Pistone 
or any other City official involved with planning or development. 
Nor did it do so —  despite the inexperience of its members in 
matters relating to planning and development. Tr. 7555 
(Martinelli); 8057 (Forrester). (Nor, in another departure from 
standard procedure, did the City Council solicit the Planning 
Board's views before voting on the committee's eventual recom­
mendation. Tr. 9810 (Pistone).)

\lpO



The Committee was not given a list of developers or any 
assistance in obtaining such a list. Instead, it was told that the 
City would publicize the committee's existence and arrange for 
developers to contact it. Tr. 7554 (Martinelli) ; 8056-57 
(Forrester) . A press release was issued announcing the existence 
of the committee, but no other efforts appear to have been made to 
find potential developers. P-I 199-53; Tr. 7931 (Cipriani).

Shortly after the committee was formed, two developers 
called to express interest in School 4. One was Melvin Weintraub 
from Morelite Construction, who proposed to convert the building 
into condominuims and construct townhouses on the school playground 
across the street. The other was Leon Lauterbach, who on behalf of 
his client DomlttlC' Yannl, was the one who originally contacted the 
City Manager about the site, and who proposed to convert the school 
into rental units. Tr. 8052-53 (Forrester).

Some two weeks after th'6'committee's formation, a meeting 
with held with Melvin Weintraub. Weintraub presented a set of 
renderings of the proposed project, based on blueprints of the 
school which he had obtained from the City, and indicated that the 
starting sales price for “the condominiums would' be $100,000 to 
$125,000. Tr. SOSa-dl (Forrester). According to Forrester, the 
general reaction of the committee was that "for that kind of price, 
people would come in that we would like to live in the 
neighborhood." Tr. 8065. The committee did not discuss a selling 
price for the school with Weintraub. Forrester testified that the 
sales price was not the committee's job, that its sole function was 
to recommend the "best use of the property," and that the sole

\ i s \



criterion for determining best use was "the use that would best fit 
the neighbors." Tr. 8062,8071.

Another developer, Luciano Martirano, also appeared at 
the meeting with Weintraub, saying that he had heard about the 
committee and was interested in developing the property with two- 
family homes. An appointment was made for Martirano to come back 
and present a proposal, but according to Forrester, he never 
reappeared and never submitted a proposal. Tr. 8067-69.

Several weeks later, the committee held its second and 
only other meeting with a prospective developer, at which Leon 
Lauterbach's client, Dominic Yanni, proposed conversion of School 4 
into apartments to rent at approximately $175 per room. Although 
the City had initially,_^been responsive to Yanni's expression of 
interest in the site,_he had subsequently been unable to obtain 
blueprints of the school from the City. As a result, his proposal 
was limited to an oral presentation, without accompanying sketches. 
Tr. 8069-70 (Forrester).

After Yanni left, the committee discussed the proposals 
that had been presented. According to Forrester, everyone was in 
favor of Weintraub*s proposal for condominiums, and as a result, 
Forrester called Yanni thSj next day and told him he need not go the 
expense of preparing sketches of his proposal. Forrester also 
called Ward Councilman Cipriani and reported that the committee had 
selected a proposal for condominiums. Forrester explained that the 
committee felt that apartment dwellers might be "transient," 
whereas condominium owners would have a vested interest in the 
property and therefore care for it properly. Tr. 8071-74



(Forrester). At trial, Forrester acknowledged that he knew Yanni 
owned an apartment building next to School 4, and that he had had no 
particular experience with those apartments that led him to believe 
that apartments represented a threat to the stability of the 
neighborhood. Tr. 8076-78.

Later that month, on August 12, a meeting was held for 
area residents at which the committee gave its recommendation for 
the re-use of School 4. C-1381. The recommendation was unanimously 
approved, and the committee was instructed by Ward Councilman 
Cipriani to file a report with the City Council. Tr. 8075-77 
(Forrester).

The committee filed its report, and on September 14, 
1982, the City Council passed a resolution authorizing the City 
Manager to obtain two appraisals of the property. C-1373. On the 
basis of those appraisals, the City set a minimum sale price of 
$230,000. C-1376. The City also wrote to HUD in October reporting 
that it had received "firm commitments of interest" from a 
developer to build "moderate income condominiums" on the School 4 
site and asking for leave to remove the site from the inventory of 
possible sites for subsidized housing that had been submitted by 
the "prior administration." C-1374. HUD granted the request, and 
CounciImen Longo and Cipriani co-sponsored a local law that would 
permit the sale of School 4, without public bidding, to Morelite 
Construction (Weintraub's company) for $230,000. A public hearing 
on the sale was scheduled for December 21, 1982. C-1375; GX 
1170.28.

A week before the hearing. Councilman Longo and Cipriani



sent a letter to their constituents reporting that "a problem ha[d] 
developed" with respect to the proposed sale of School 4. GX 
1170.28; Tr. 7784-87 (Longo); 7970-71 (Cipriani). The letter
explained that:

in 1980, then City Manger Gene Fox and former 
Mayor Gerald Loehr recommended the School #4 as
a site for subsidized housing....As a result
of the Loehr-Fox action, the NAACP has 
threatened to stop the city from selling the 
property for any use other than low-income housing.

GX 1170.28. The letter then went on to urge residents to attend the
upcoming City Council hearing, claiming that

At this point, the Council is almost equally 
divided between the condominium proposal and 
the wishes of the NAACP. Your attendance and your opinion will be extremely helpful at the 
Public Hearing scheduled for 8:00 P.M.

The public hearing held on December 21, was so well- 
attended that a television monitor waa set up to enable the 
overflow from the Council chamber to watch the proceedings from an 
adjoining room. The audience was heavily white, and the discussion 
itself, a videotape of which has been received in evidence, was 
emotionally charged, with expressions of concern about the effect 
that subsidized housing would have on the "character" of the 
neighborhood, and frequent exhortations by counciImembers to heed 
the "will of the community." GX 1226; see also Oxman Dep. 123-29; 
Cola Dep. 169-71.

A number of residents, most of whom were black, opposed 
the sale. Those speakers described the racial segregation that 
existed in Yonkers, and the events leading up to the submission of 
the list of sites to HUD. The final speaker, who was white, spoke

1C£



of how blacks had ruined neighborhoods in the Bronx, claiming that 
the buildings originally were "in fine shape" but had 
"deteriorated" when the blacks moved in. The speaker then stated 
that he supported the condominium proposal because he didn't want 
the same thing to happen in Yonkers, and closed by saying, "I'm not 
a good speaker ... but I think you get the idea." The audience 
responded with an ovation.

During the Council discussion that followed. Ward 
Councilman Cipriani urged the Council to support the proposal for 
condominiums, saying that it was a concept that his constituents 
had adopted, and that he would "follow it as long as [he was] an 
elected councilman." Cipriani contended that the issue was not one 
of black versus white, but then went on to claim that he had earlier 
supported the concept of subsidized housing for the site as long as 
it was limited to housing senior citizens.

One Councilmember, Katherine Carksy, raised several 
concerns about the procedure by which the school was being sold. 
Carsky objected to being asked to approve the sale without having 
been shown the developer's {uroposal, and she reminded the Council 
that it had not long ago passed- a resolution requiring public 
bidding for the sale of City property. In addition, she questioned 
Longo and Cipriani's estimate that $600,000 in annual tax revenue 
would be derived from the condominiums (an estimate which Longo and 
Cipriani acknowledged at trial to have been inflated by a factor of 
ten, Tr. 7973 (Cipriani); 7788-89 (Longo)), and she noted that the 
current zoning of the site was inconsistent with the proposed use. 
Carsky suggested that if the site were first rezoned and then bid

l u S



on, a higher sales price would be realized by the City.
CounciImember Cipriani replied that
It's not a question of dollars ... It's a 
question of concept, as to what the 
neighborhood would like to see, just like ... 
the concept of what your neighborhood near Palmer Road would like to see.

Cipriani's statement was greeted with applause and cheers, 
following which, he added "we will change that zone when the 
concept fits the people, not before."

Councilmember Longo stated that the decision to forgo 
public bidding was a matter of "trust" in the developer, explaining 
that another developer might get the required zoning change and 
then change the use of the site. Longo objected to frustrating the 
will of the community by denying it a developer it-trusted and also 
stated-.that "many of us are concerned" about not delaying the 
project. - .

Four other counciImembers, including Mayor Martinelli, 
likewise deferred to the "will of the community." Mayor Martinelli 
said that he supported the condominium proposal on the ground that 
people ought to "have, a right ... to decide what happens to" their 
neighborhood. Councilmembers MacDonald and Jacono agreed that it 
was important for communities to be permitted to decide how sites 
would be used, and Councilmember Spreckman stated that she was 
there "as a representative of the people, to see that the people 
get what they want." Spreckman indicated that she supported public 
bidding as a general rule, but not where the community had clearly 
made its wishes known.

The only councilmember other than Carsky to oppose the



sale was Harry Oxman, who stated that he would be against the sale 
until it was known what "problems" the City would have as a result 
of the pending litigation. Oxman also observed that the 
concentration of so much subsidized housing in the Southwest had 
"almost annihilated" Getty Square.

At the close of the meeting, the City Council voted 
eleven to two to sell the site. In response to the City Council's 
vote, Plaintiff-intervenors applied to this Court for a preliminary 
injunction forbidding the sale of School 4. The City subsequently 
consented to the hold the sale in abeyance pending resolution of 
this litigation.

The City has argued that since it was under no duty to 
retain School 4 for possible use as a subsidized housing site, it 
cannot be held liable for attempting to sell it. It is well 
settled, however, that actions which are otherwise lawful lose that 
character when they are undertaken' for a discriminatory purpose. 
See, e.q., United States v. City of Parma, supra, 494 F.Supp. at 
1099. And in light of the historical background and sequence of 
events leading- up' to the attempted sale; the procedural 
irregularities and disregard of standard considerations which 
attended it; and the nature of the debate preceding the Council's 
vote, it is difficult to imagine a clearer case of an action taken 
for a discriminatory purpose.

The prime movers of the zone change and attempted sale of 
School 4 were counciImembers who made no secret of their opposition 
to the placement of subsidized housing (at least for families) in 
East Yonkers. Indeed, their own campaign literature has described

\{S>1



them as "leading the fight" against it. GX 1301.9; 1302.10. And 
the record makes clear that School 4 came to be viewed as a primary 
battleground in that fight. The attempted sale was not a routine 
and race-neutral disposition of surplus property, but an effort to 
ensure that the site could not be used for the construction of 
subsidized housing in East Yonkers. As such, it reflects a clear 
intent on the part of City officials to continue the thirty-year 
pattern of discriminatory actions that has operated to exclude 
subsidized housing for families from East and Northwest Yonkers.— ^



VI. THE EFFECT OF THE CITY'S ACTIONS ON THE RACIAL CONFIGURATION OF YONKERS

The City contends that regardless of whether its actions 
with respect to subsidized housing are found to have been motivated 
by segregative intent, it cannot be held liable for those actions 
since they did not significantly contribute to the extreme 
condition of segregation that exists in Yonkers today. The City's 
contention is without merit.

While the record contains apparently conflicting 
evidence on the question of whether the City's actions significant­
ly exacerbated the level of minority concentration in Southwest 
Yonkers (the point on which the City's argument focuses), there can 
be no doubt that the City's actions have played a significant role 
in the preservation of East and Northwest Yonkers as overwhelmingly 
white communities.— '̂ Indeed, it is difficult to imagine a pattern 
of actions by City officials that could have done significantly 
more in this regard. Not one of the City's twenty-seven subsidized 
housing projects for families is located in any of the overwhelm­
ingly white neighborhoods of East and Northwest Yonkers. Twenty- 
six are located in (or, in the case of Seven Pines, literally on the 
border of) Southwest Yonkers; the twenty-seventh is in Runyon 
Heights, a minority enclave in East Yonkers. Section 23 leased 
housing has likewise been largely confined to buildings located in 
the Southwest, and the Section 8 Existing program (which is subject 
to no formal geographic control by the City) was for several years 
limited to senior citizens, and even after its expansion to include 
families, appears to have been actively promoted only to Southwest



Yonkers landlords.
Moreover, this is not a case in which City officials 

simply neglected to consider sites outside Southwest Yonkers for 
family housing. Instead, it is a case in which sites were 
repeatedly considered and then rejected after the residents of 
those overwhelmingly white communities made their strong objections 
known. It is also a case in which it was generally acknowledged, at 
least as early as 1966, that what was at issue in their site 
selections was whether the Yonkers community was "ready" to accept 
racial integration. See HOUSING III.D supra. As a result, it is 
clear that the City's actions not merely preserved but strengthened 
existing patterns of segregation by appearing to condone, or at 
least respect, the segregative sentiment that prevailed in East and 
Northwest Yonkers. If City officials themselves appear unable or 
unwilling to breach a racial barrier, it becomes all the more 
unlikely that-individual minorities will be encouraged to try, or 
that individual whites will be encouraged to abandon the attitudes 
that have erected that barrier.— ^ Cf., e.g., Reitman v. Mulkey, 
387 U.S. 369 (1967); Shelley v. Kraemer, 334 U.S. 1 (1947).

Thus, at least with respect to the issue of the City's 
liability for its actions, the precise effect of the actions on the 
Southwest is largely beside the point. In light of the clear 
effect of those actions on the racial composition of East and 
Northwest Yonkers, no more is required to confirm that the actions 
did indeed contribute significantly to the extreme condition of 
segregation that exists in Yonkers today. A plaintiff need not 
prove, with mathematical exactness, the precise effect of

I "70



discriminatory actions in order to establish the defendants' 
liability for those actions. See, e.g., Armstrong v. O'Connell, 
463 F.Supp. 1295, 1309-10 (E.D.Wis. 1979).

Nonetheless, it bears noting (if only to guide future 
consideration of appropriate remedial measures) that the evidence 
belies the City's contention that its actions did not significantly 
exacerbate the concentration of minorities in the Southwest.

The period between 1960 and 1980 was marked by striking 
demographic shifts in the City as a whole, and in the Southwest in 
particular. During those years, and particularly beginning in the 
mid to late 1960's, the citywide minority population increased by 
325%, and 94% of that increase was concentrated in Southwest 
Yonkers and census tract:-? (a tract on the northern border of the 
Southwest, which contains the Seven Pines housing project). GX 
1225.1; 1225.4;- 1225.6.^^ During those same years. Southwest 
Yonkers also lost nearly half-of -itS'Vhite population, resulting in 
a total rise in the level of minority concentration from 6.7% to 
40.4%. GX 1225.1. The population of East and Northwest Yonkers, 
in contrast, remained overwhelmingly white. See HOUSING I supra 
(discussing the level< of minority concentration in the various 
census tracts of East and Northwest Yonkers)

Plaintiffs contend that this markedly increased 
concentration of minorities in the Southwest is, in significant 
part, the result of the City's placement of more than 5,000 units 
of subsidized housing there (compared to less than 200 units 
elsewhere, none of which was family housing in a white area of the 
City). Specifically, plaintiffs contend that the City's actions

1-71



with respect to subsidized housing "stigmatized" the Southwest as a 
minority area, thus making it more likely that minorities would 
seek housing there, and more likely that whites would leave. The 
City, in turn, contends that the population shifts that have 
occurred in the Southwest are primarily attributable to the large 
stock of substandard (and therefore low-cost) housing there and the 
general trend toward suburbanization among upwardly mobile whites, 
with subsidized housing having no significant incremental 
effect.— ^

The weight of expert testimony on this point strongly 
favors the plaintiffs. . Paul Davidoff, an expert witness in 
housing, who testified on behalf of the United States, and Diana 
Pearce, an expert witness,on housing and school segregation, each 
testified persuasively, on the basis of their general experience 
and studies in their respective fields, that the City's 
concentration of subsidized housing in the Southwest was indeed 
likely to have stigmatized it as a minority area. Tr. 180-81, 258- 
59 (Davidoff); 8178-95 (Pearce). In further support of her view. 
Dr. Pearce presented a series of,, "microneighborhood" maps which 
strikingly illustrate the general increase in minority 
concentration that^ tended to follow construction of the City's 
subsidized housing projects. P-I 352.^^

In addition, and perhaps most significantly, plaintiffs' 
position even finds support in the testimony of the City's own 
expert witness on urban planning. Dr. Portman initially professed 
disagreement with plaintiffs' experts, but offered an explanation 
that suggested agreement more than disagreement (namely, that total



abandonment of the Southwest might have had an even greater 
stigmatizing effect), and then conceded, when pressed, that there 
was "some logic" to the view expressed by plaintiffs' experts. Tr. 
10,728-35 (Portman).

We agree that particularly when account is taken of the 
effect of the City's actions on the racial composition of East and 
Northwest Yonkers, there is considerable logic to the view 
expressed by plaintiffs' experts. When, as here, the City's 
actions with respect to subsidized housing have been found to have 
significantly contributed to the average minority member's 
inability (for reasons of race as well as economics) to find 
housing outside of Southwest Yonkers, it begs reason to suggest 
that thos» actions played no significant part in the circumstances 
that caused 94%. of a large citywide increase in minorities to be 
concentrated in and around the Southwest.

Nor is it likely that those actions played no significant 
part in the Southwest's simultaneous loss of nearly half its white 
population. GX 1225.1. Common sense suggests, and the record as a 
whole confirms, that if obvioua actions are being taken to preserve 
the overwhelmingly white character of all areas of a city except 
one, the incentive for whites to remain in that area will be 
significantly diminished. Indeed, decisive support for plaintiffs' 
theory of stigmatization is found in the concerns repeatedly 
expressed or alluded to in Yonkers by minority and church leaders 
seeking to stop further concentration of subsidized housing in the 
Southwest; by white residents of East Yonkers seeking to prevent 
the construction of subsidized housing there; and by some City



officials themselves, who sought to blunt the stigmatizing effect 
by trying, in large part unsuccessfully, to attract more whites to 
the Southwest's projects. See, e.g., HOUSING III.D, IV.B, IV.D.3, 
IV. D. 4, and IV.D. 5 supra.— ^

The only significant evidence offered by the City in 
rebuttal is a statistical analysis of the City's census tract data 
undertaken by Eric Hanushek, who testified as an expert witness in 
urban economics. Broadly summarized. Dr. Hanushek testified that 
at least when certain other likely contributing factors are also 
taken*̂  into^ account (namely, the large stock of nonsubs id i zed low- 
cost housing in the Southwest; the general minority presence there; 
and the trend toward suburbanization among upwardly mobile whites) , 
it does not appear probable that subsidized housing development in 
Yonkers played ' any significant incremental role in the sharp 
increase in minority concentration that has occurred in the 
Southwest. See Tr. 9053-113.

However, there are many reasons to question the probative 
value and. Indeed, the relevance of Dr. Hanushek's analysis, 
particularly when it is weighed against the evidence supporting 
plaintiffs' contrary contention. First, as Dr. Hanushek himself 
acknowledged, his conclusion was based solely on statistical 
probabilities derived from the City's census tract data, not from 
any study of the history of subsidized housing in Yonkers. 
Moreover, the factors analyzed by Dr. Hanushek were conceded to be 
overlapping and mutually reinforcing, thus complicating consider­
ably the statistical analysis by which the probable individual 
contribution of each factor is derived. Tr. 9071, 9160-62.



Although Dr. Hanushek nonetheless expressed confidence in the 
capacity of his statistical methods to derive meaningful 
probabilities, the mechanics of those methods did not prove 
sufficiently capable of articulation to allow the Court to share 
that confidence.

Finally, and by far most significantly. Dr. Hanushek 
conceded that various circumstances which could not be taken into 
account in his study might significantly affect the reliability of 
his calculations, Tr. 9133-39. And among those circumstances is 
the very one cited by plaintiffs as the primary basis for their 
contention that subsidized housing indeed contributed to the sharp 
rise in minority concentration in the Southwest.

The point .can best., be illustrated in a somewhat 
simplified form. Dr. Hanushek's analysis reflects, at least in 
significant part, a judgment that the amount of subsidized housing 
in the Southwest was, in comparison to the amount of other low-cost 
housing there, sufficiently low so as to suggest that its presence 
probably had no significant incremental effect on minority 
concentration.,;^ However, .15 the subsidized housing carries with it 
the stigma of having been adjudged to be minority housing, and 
therefore unsuitable foe.other areas of the city, the placement of 
that housing in the Southwest may have had a far greater influence 
on the resulting level of minority concentration than would 
otherwise be suggested by the ratio of subsidized to nonsubsidized 
low-cost housing in the area. Since Dr. Hanushek's analysis cannot 
detect, much less measure that added influence, it must assume its 
absence. As a result, the analysis fails to address, much less



rebut, the evidence tending to show that subsidized housing did 
exert a stigmatizing influence. Instead, it merely suggests that 
if no particular stigma was attached to subsidized housing, it 
probably had no significant incremental effect on the concentration 
of minorities. As a result, even if the calculation of 
probabilities is reliable, the underlying assumption renders the 
analysis irrelevant to our inquiry.

One final aspect of the evidence presented during Dr. 
Hanushek's testimony is so misleading as to require separate, 
although brief, discussion. Using the figures derived from his 
analysis. Dr. Hanushek projected the probable racial composition of 
a hypothetical Yonkers in which no subsidized housing whatever had 
been built. That projection estimated the probable difference to 
be limited to a decrease of some 78 to 98 individuals among the 
entire Southwest population. C-1704,"

For the various reasons described above (chief among them 
the assumption that subsidized housing carried with it no 
particular racial stigma), the projection is, in any event, wholly 
unreliable. But "''it ̂ ls^“rendered especially misleading by an 
additional assumption, for" which Dr. Hanushek offered no 
justification and which is totally unrealistic' and unfounded —  
namely, that if no subsidized housing had been built in Yonkers, 
the same amount of housing would have remained available in the 
private market.

The City has since suggested that the assumption is a 
reasonable one since there is evidence tending to show that 
private-market units were removed at roughly the same rate at which



subsidized housing units were built. See Tr. 10,730 (Portman) 
(discussing the figures for the 1970's). But even assuming that 
the City's construction of subsidized housing did not result in any 
significant increase in the overall density of the Southwest, it by 
no means follows that if no subsidized housing had been built, the 
density of the Southwest is likely to have remained constant. To 
the contrary, the record makes-^clear that much of the housing stock 
in the Southwest was rapidly deteriorating, thus leading to a 
steady loss of density unless the units were repaired or replaced. 
In addition, the record makes equally clear that the private market 
was unlikely to undertake that task on any significant scale. 
Indeed, as the City itself has emphasized in another context, it 
was precisely the absence of private-market interest in the 
Southwest which made 'some form of federally funded urban renewal 
there essential, and which in turn made the construction of 
subsidized housing'"somewhere in Yonkers equally essential! Thus, 
the "hypothetical" Yonkers described by Dr. Hanushek is, on the 
basis of the record before us, so unrealistic that any conclusions 
that may be drawn about it are simply irrelevant to this case.

In addition, it bears emphasis that the City could, in 
any event, have hoped to gain little by comparing the effect of its 
actions with that of what its own expert witness in urban planning 
described as the "worst case" alternative —  failing to construct 
any subsidized housing anywhere in the city, and thereby failing to 
obtain urban funds, and thus consigning Southwest Yonkers to 
continued and increasingly serious deterioration. Tr. 10,737 
(Portman) . Obviously, the only relevant comparisons to be made are

177



with the effects of the alternatives reasonably available to the 
City and under circumstances reasonably likely to occur. Dr. 
Hanushek's analysis made no attempt at such comparisons. Indeed, 
he acknowledged that the limitations of the analytical methods 
available to him did not permit such comparisons to be made. Tr. 
9214-15.

A passing attempt to compare the effect of reasonable 
alternatives was made in a question put to Dr. Portman about the 
probable effect that constructing 200 units of family housing in 
East Yonkers would have had on the level of minority concentration 
in Southwest Yonkers. But Dr. Portman's response —  that, in his 
opinion, it would have had no significant effect —  was also made

I

in passing and is surely overbroad. Tr. 10,738 (Portman). It
seems clear that the likely effect would depend on such variables 
as when the housing was built, what else was put in its place in the 
Southwest, and what other actions were being taken to promote fair 
housing in East and Northwest Yonkers. Moreover, even if Dr. 
Portman's opinion is credited, the construction of only 200 units 
elsewhere was not the only alternative open to the City. Finally,

•• • I < ‘

as suggested at the outset of this discussion, however uncertain 
the effect of the alternative may have been with respect to 
Southwest Yonkers, its likely effect with respect to East and 
Northwest Yonkers is clear. As Dr. Portman himself appeared to 
acknowledge, even the construction of so small an amount as 200 
units of family housing in East Yonkers would have been likely to 
have exerted a significant integrative influence on the area. Tr. 
10,786-88 (Portman).

n s



A recurrent theme in the City's arguments to the Court 
has been that it is under no affirmative duty to promote 
integration through the construction of subsidized housing. But 
the absence, in the abstract, of such an affirmative duty does not 
equal a license to discriminate in decisions relating to subsidized 
housing. It does not, for example, equal a license to refuse to 
build subsidized housing, despite a need for it, on the ground that 
it might result in racial integration. See, e.q., United States v. 
City of Parma, supra. Nor does it equal a license to make the 
preservation of existing patterns of segregation a factor in site 
selection. See, e.q., Gautreaux v. Chicaqo Housinq Authority, 
supra.

Nor, it should be emphasized, is this a case in which the 
claim of segregatiye intent must rest merely on a failure to take, 
despite the opportunity and reason to do so, a sufficient number of 
actions having an integrative effect. Instead, it rests on a 
thirty-year practice of consistently rejecting the integrative 
alternative in favor of the segregative —  a practice that had the 
unsurprising effect of perfectly preserving, and significantly 
exacerbating, existing^patterns of racial segregation in Yonkers.



VII. CONCLUSIONS OF LAW

It is commonplace among courts and commentators that the 
task of determining whether actions were taken with discriminatory 
intent is a difficult one. Intent has been characterized as an 
"elusive, subjective concept," Hawkins v. Town of Shaw, 461 F.2d 
1171, 1172 (5th Cir. 1972) (en banc) (per curiam), and particularly 
difficult to identify when the intent at issue is the "collective" 
intent of a legislative or administrative body. See, e.g., Palmer 
V. Thompson, 403 U.S. 217, 224-25 (1971); Hart v. Community School 
Board of Education, New York School District #21, 512 F.2d 37, 50 
(2d Cir. 1975). The task of determining intent is further 
complicated by the likelihood that>,there, may be, little or no direct 
evidence of discriminatoxy. intent«r̂  especially with respect to 
actions taken during the past few decades, due to the growing 
unacceptability of overtly bigoted behavior, and a growing 
awareness of the possible legal consequences of such behavior. Cf. 
Smith V. Town of Clarkton, 682 F.2d 1055, 1064-65 (4th Cir. 1982); 
Arlington Heights II, supra, 558 F.2d at 1290;, United States v. 
City of Parma, supra, 494 F,.Suppjj,̂  at 1054.

In some reapeots, the case at hand might, seem to present 
an unusually difficult exercise in determining intent. What is at 
issue is not a single action, or series of actions, undertaken by a 
single group of individuals, but more than thirty years of 
subsidized housing activity, for which a sizable and changing group 
of City officials shared responsibility. We are aware of only two 
prior cases that are of even roughly comparable scope, see United

\%0



States V. City of Parma  ̂ supra; Gautreaux v. City Housing 
Authority  ̂ supra» and in neither case were the challenged actions 
defended with the vigor and sophistication with which the City of 
Yonkers has defended its actions here.

For several reasons, however, our conclusion that 
plaintiffs have sustained their burden of proving a pattern and 
practice of discrimination is a relatively easy one. First, as 
suggested at the outset of this Opinion, when the segregative 
effect of an action is extreme, or when there is a series of actions 
having a consistently segregative effect, the inference is stronger 
that the effect of the actions was intended. E.q., Arlington 
Heights I, supra, 429 O.S. at 266; Washington v. Davis, 426 U.S. 
229, 241-42 .(1976); Yick Wa v. Hopkins, 118 U.S. 356 (1886). Here, 
the segregative effect of the actions challenged by plaintiffs has 
been remarkably consistent and extreme,^ It is, to say the least, 
highly unlikely that a pattern of subsidized housing which so 
perfectly preserved the overwhelmingly white character of East and 
Northwest Yonkers came about for reasons unrelated to race. See 
Gautreaux v. Chicago Housing Authority, supra, 296 F.Supp. at 910; 
United States v. City of Parma, supra, 494 F.Supp. at 1097.

In addition, despite the considerable span of time 
involved, and the various .changes in City personnel and in the 
structure of the subsidized housing programs themselves, there have 
been several constants in the development of subsidized housing in 
Yonkers which strongly suggest that these segregative effects were 
not adventitious. One constant has been the emergence of strong 
community opposition following the proposal, or even the



preliminary discussion, of sites for subsidized housing for 
families when those sites are in the heavily white areas of Yonkers 
—  in particular. East Yonkers.

Another constant has been a political structure likely to 
make community opposition unusually effective. Plaintiffs have 
established that the operation of tthe City's ward system provided 
strong incentive for individual councilmen to defer to the views of 
their constituents on subsidized housing, and for the Council as a 
whole to defer to the views of the ward councilman. Cf. Gautreaux
V. Chicago Housing Authority, supra, 296 F.Supp. at 91i'-(discussing 
the effect of Chicago's ward system) . Plaintiffs have also 
established that this phenomenon was well known to the Planning 
Board, the CDA, the MHA, and others who worked with the City in the 
development of subsidized housing. Cf. United States v. City of 
Parma, supra, 494 F.Supp. at 1096 (discussing the effect of 
attitudes expressed by City leaders on subordinate local 
officials).

A third constant has been the extreme consistency with 
which the sites that have prompted opposition in East Yonkers and 
other heavily white areas have in fact been subsequently rejected, 
abandoned, or otherwise opposed by City officials.

These constants strongly suggest that whatever 
differences in personnel or programs there may have been throughout 
the years, subsidized housing in Yonkers has been characterized by 
a common theme: racially influenced opposition to subsidized
housing in certain areas of the City, and acquiescence in that

61/opposition by City officials.— '

isa-
i



The City has cited cases in which courts have cautioned 
against determining the nature of community opposition, or its 
effect on City officials, largely on the basis of the "bigoted 
comments of a few citizens." Arlington Heights II, supra, 558 F.2d 
at 1292; see also Angell v. Town of Manchester, 3 E.O.H.C. H 15,398 
(D.Conn, 1981); United States v. City of Birmingham, supra. But 
this is clearly not such a case. A finding that there has been 
sustained racially influenced,community opposition to the placement 
of subsidized housing in certain areas of Yonkers would not be 
based simply on the fact that in 1958, for example, a group of 
citizens sent City Council members a letter in opposition to 
subsidized housing which expressed concern about having "to absorb 
the overflow from Harlem and Puerto Rl^9 ,”_or that as late as 1982, 
a white resident of East Yonkers was met with loud applause from an 
overwhelmingly ....white audience .when he spoke against subsidized 
housing at a City Council session, contending that blacks had 
ruined neighborhoods in the Bronx and that he did not want the same 
thing to happen in his neighborhood. Such statements form only a 
small part of the evidence v̂ hich suggests , that the community 
opposition in question.was racially„|.nfluenced.

As suggested above, among the most persuasive indications 
of racial influence here is the extreme consistency with which 
community opposition has arisen when the site proposed was in a 
heavily white area of the City —  especially East Yonkers. Of all 
the many East Yonkers sites proposed or publicly discussed in the 
course of more than thirty years (with the exception of those in 
heavily black Runyon Heights), only one site appears to have

I



prompted little or no community opposition —  the site of Curran 
Court, a senior citizens project that has been virtually all white 
since opening. The uniformity of opposition to sites in over­
whelmingly white East Yonkers argues strongly against a finding 
that the opposition was genuinely site-specific and race- 
neutral.— ^

Further indications of a racial aspect to the opposition 
include the evidence that there was longstanding and, since the 
mid-1960's, increasing racial polarization in Yonkers, cf., e.g., 
Kennedy Park Homes Association v. City of Lackawanna, 436 F.2d 108, 
113 (2d Cir. 1970), cert, denied, 401 U.S. 190 (1971); Smith v.
Town of Clarkton, supra; United States v. City of Parma, supra;

'  . ' . j a

the evidence that subsidized housing for senior citizens (which, 
unlike subsidized housing for families, tended to be heavily white)

* .i* r*>

often provoked less opposition in heavily white areas, cf., e.g., 
Atkins V. Robinson, 545 F.Supp. 852, 874 (E.D.Va. 1982), aff'd, 
733 F.2d 318 (4th Cir. 1984); United States v. City of Birmingham,' J
supra; United States v. City of Parma, supra, 494 F.Supp. at 1091- 
94; Gautreaux v. Chicago Housing Authority, supra, 296 F.Supp. at 
912; and the nature of the objections most often raised —  objec- 
tions based upon the "incongruity" of putting a subsidized housing 
project in a particular area; the belief that subsidized housing 
should be restricted to "slum" areas; concern about deterioration 
of the neighborhood and property values; and what City officials 
themselves disparaged as the "standard litany" of inadequacies. 
Such objections can be convenient substitutes for explicitly racial 
statements, and they have been construed as such when appearing in



conjunction with other evidence of discriminatory intent. See, 
e.q., Smith v. Town of Clarkton  ̂ supra; United States v. City of 
Birminqhamt supra; United States v. City of Parma, supra.

Finally, and most significantly, there is the testimony 
of the City's own officials and other on-the-scene observers. 
Numerous City officials —  including a former mayor —  and others 
who were directly involved in site selection acknowledged at trial 
that they themselves believed that much of the community opposition 
they encountered was racially influenced —  specifically, 
influenced by the fear that subsidized housing would result in an 
"invasion" of minorities into the area.

To be sure, the evidence does not support a finding that 
the community opposition was- based wholly upon race, or that the 
position of every community opponent was based, at least in part, 
upon race. But such findings couBi rarely',' if ever, be made; nor 
are they required here.” What required, and what the evidence 
clearly supports, is a finding that the desire to preserve existing 
patterns of segregation has been a significant factor in the 
sustained community opposition’ to subsidized housing in East 
Yonkers and other overwhelmlnqly white areas of the City. See 
Smith V. Town of Clarkton;'' supra, 682' F.2d at 1066; United States 
V. City of Birmingham, supra, 538 F.Supp. at 826.

The evidence is equally clear that City officials 
consistently responded to that opposition. While a single instance 
of the rejection or abandonment of a proposed action following the 
emergence of community opposition may not create a strong inference 
that the decision was a response to the opposition, a pattern of



opposition followed by rejection or abandonment is another matter, 
particularly when the political system controlling the decision­
making process is shown to be hypersensitive to adverse community 
reaction. Here, as noted above, there is evidence of a pattern of 
more than thirty years' duration, and of a political system in 
which the ward councilman exercised unusual Influence over the 
Council as a whole, and in which ward residents, in turn, exercised 
unusual Influence over the ward councilman.

In addition, the record is replete with contemporaneous 
statements and trial testimony by City officials and other on-the- 
scene observers which further suggest that for more than thirty 
years, the site selection process for subsidized housing was 
dominated by the unwillingness of the'City Council to approve or 
support a site in the face of’community opposition. The single 
most notable, but by no means only, testimony in confirmation of 
the effect of community opposition was that of former Mayor Alfred 
Del Bello, who testified to the "tremendous pressure" put on East 
Yonkers counciImembers by the opponents of subsidized housing, and 
who stated flatly that the reason why the numerous sites selected 
during his administration were air in Southwest Yonkers was that 
they were the only sites the City Council would approve.

The City has suggested that the plaintiffs are required 
to prove, on a vote-by-vote basis, that the desire to appease 
racially influenced community opposition was the deciding factor 
for a specific, identified majority of the City Council or other 
City agency responsible for each action at issue in the case.— If 
indeed this were the legal standard, however, the burden of proving

\SCd



discriminatory intent would no longer be merely difficult, but 
instead virtually impossible. And, in fact, it clearly is not the 
standard.

To the contrary, it is well established that the intent 
of collective actions can, and often must, be established 
circumstantially. See Arlington Heights I, supra, 429 U.S. at 266- 
68. For, as one court observed, "[ilf proof of a civil right 
violation depends on an open statement by an official of an intent 
to discriminate, the Fourteenth Amendment offers little solace to 
those- seeking its protection," Dailey v. City of Lawton, 425 F.2d 
1037, 1039 (10th Cir. 1970). And as the Supreme Court noted in 
Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 
(1979): The inquiry [into intent] is practical. What a 

legislature or any official entity is 'up to* 
may be plain from the results its actions 
achieye, or the results they avoid. Often it is made clear from what has been called, in a 
different context, "the give and take of the 
situation."

442 U.S. at 279 n.24 (citation omitted).
Here, based upon the pattern of actions taken, the

Ipolitical structure of the decisionmaking process, and the 
statements of City officials and others involved in City affairs, 
there can be little doubt that with respect to the selection of 
sites for subsidized housing, appeasement of racially influenced 
community opposition was an important factor for a very 
"significant percentage of those who were responsible for the 
city's conduct," United States v. City of Birmingham, supra, 538 
F.Supp. at 828.

The City has offered various alternative explanations for



the pattern of sites approved by City officials, but the 
explanations are plausible only if evaluated in the abstract. When 
applied to the record, none raises any significant doubt about the 
effect of conmunity opposition on site selection.

The explanation most vigorously pressed by the City is 
that the concentration of sites in Southwest Yonkers reflects 
nothing more than a strategy to use subsidized housing to 
revitalize the Southwest. That explanation, however, is simply not 
supported by the record. With respect to the pre-Rivervlew period 
(HOUSING III supra) there is little in the record to suggest that 
there was a conscious decision to focus on the Southwest in 
choosing sites for subsidized housing, and much to suggest the 
contrary. Withr respect to the Rlvervlew period, there is little^to 
suggest that any ' decisions to do so were unrelated to the 
continuing community opposition to the placement of subsidized 
housingelsewhere in the' City. Indeed, the sequence of events 
preceding site selections during this period, and the testimony of 
former Mayor DelBello and others, strongly suggest the contrary. 
With respect to the post-Riverview period (HOUSING V supra), the 
continued concentration of subsidized housing in the Southwest in 
fact ran counter to' at least some aspects of the stated planning 
strategy of the City.^^

Nor does the record support the City's suggestion that 
despite the evidence of pervasive community pressures, the site 
selection process over the years was governed by the routine 
application of standard planning criteria. In addition to the 
strikingly predictable effect that the existence of community



opposition had on the fate of proposed sites, the record reflects 
repeated disregard of Planning Board objections or recommendations; 
inconsistent application of stated planning criteria; and, in 
general, varying degrees of scrutiny depending upon whether the 
site in question was east or west of the Saw Mill River Parkway. 
See Arlington Heights I, supra, 429 U.S. at 267.

Nor, it should be emphasized,! is there any basis for 
doubt that City officials were fully aware that the course they 
were pursuing wais one of segregation. The potentially segregative 
or integrative effect of site selections was publicly addressed at 
least as early as 1958; and from the mid-1960's on, the issue was 
regularly raised by community leaders, HUD representatives, and the 
City'S'own officials. Cf., e.g;r United States v. City of Parma, 
supra, 494 P.Supp. at 1097 (segregative effect not only 
foreseeable, but actually foreseen).

Yet, City officials continued to accede to community 
opposition which they believed, according to their own testimony, 
to be influenced by fear that construction of subsidized housing 
would result in an' invasion* of minorities into the surrounding 
area. Indeed, during* the'"post-Riverview" period, numerous City 
officials not only responded- to, but,* in the words of the campaign 
literature of some, "led^the fight against subsidized housing in 
East Yonkers." That "fight" has included, moat notably, a three- 
year refusal to apply for Section 8 Existing Certificates for 
Families —  a refusal this Court finds inexplicable except on the 
basis of fear that minorities might use the certificates to 
relocate to East Yonkers —  and the attempted sale of School 4 (a



site widely viewed as a potential site for subsidized housing in
East Yonkers) under circumstances which provide a virtual
compendium of the factors that courts have been charged to look for
in order to detect the presence of discriminatory intent. See
Arlington Heights I, supra, 429 U.S. at 266-68.

In short, we find the unusual scope and complexity of
plaintiffs' contentions to be matched by evidence of discriminatory
intent that is itself unusual in its strength and abundance.
Having considered the evidence in its entirety, this Court is fully
persuaded that the extreme concentration of subsidized housing that
exists in Southwest Yonkers today is the result of a pattern and
practice of racial discrimination by City officials, pursued in
response to constituent pressures to select or support only sites
that would preserve existing patterns of racial segregation, and to
reject or oppose sites that would threaten existing patterns of
segregation. This pattern of discriminatory actions is evident as
early as the first selection of sites for public housing under the
National Housing Act of 1949, and it has continued, unbroken,
through the attempted sale of School 4 in 1982.^^

Two remaining issues merit brief discussion. One
concerns the effect of HUD's involvement in the City's subsidized
housing activitiesr the second, the City's contention that
regardless of whether race had been a factor in site selection, the

72/results would have been precisely the same.— '

During the course of trial and in its post-trial 
submissions, the City has raised a variety of arguments relating to 
the effect of HUD's approval of the sites upon which subsidized

1 ^0



housing has been constructed in Yonkers. In particular, the City 
has urged that HUD is entitled to great deference in its 
determination that each of the sites complied with all legal 
requirements, and even that HUD's approval "insulates" the City 
from any liability with respect to those sites.

However, the City has cited no case, nor are we aware of 
any, which has held that a site's approval by HUD creates any 
presumption that segregative intent was not at work in its 
s e l e c t i o n . N o r  do we believe that such a presumption would be 
appropriate, at least in the present case. As an initial matter, 
the case before us is a pattern and practice case, the very essence 
of which is a recognition that the illegal basis of actions may 
emerge clearly only when the actions are viewed together. See 
United States v. City of Parma, supra, 494 P.Supp. at 1055 (citing 
cases). In such a case, any approval of individual actions 
necessarily must carry limited weight.

In addition, the record before us does not suggest that 
h u d's various approvals reflected an informed and considered 
judgment that the City's actions were not motivated, in whole or in 
part, by segregative intent. Indeed, the record reflects repeated 
expressions of concern about the basis of the City's actions, and 
repeated instances in which those concerns were pursued 
incompletely or not at all. Moreover, there is evidence that on 
more than one occasion the City misrepresented to HUD the extent of 
its efforts to achieve at least some measure of geographic 
dispersal of subsidized housing in Yonkers. In light of these 
circumstances, and in the context of the record as a whole, HUD's



actions do not negate a finding that the City has engaged in a 
pattern and practice of housing discrimination.

Nor do HUD'S actions "insulate" the City from liability 
for the consequences of that discrimination. HUD has no power to 
excuse discriminatory acts or to waive, on behalf of those injured 
by them, the right to seek a remedy. Nor is the City's duty not to 
discriminate defined simply as a duty to comply with HUD's orders. 
Thus, HUD's longstanding "failure to insist" that the City 
construct at least some subsidized housing for families in East 
Yonkers —  a failure the City has repeatedly stressed —  has no 
bearing on the City's liability for the consequences if its 
persistent refusal to do so is later challenged and found to have 
been motivated by segregative intent.— ^ In the face of abundant 
evidence of a longstanding practice of racial discrimination in 
site selection for subsidized housing, the City cannot escape 
liability on the ground that HUD did not do more to encourage or 
compel the City to abandon that practice.

The remaining argument made by the City against entry of 
judgment for plaintiffs is based upon the principle that such a 
judgment is unwarranted if the defendant can establish that the 
same actions would have been taken even in the absence of a dis­
criminatory motive. See Mt. Healthy City School District Board of 
Education v. Doyle, 429 U.S. 274, 287 (1977)? Arlington Heights I,
supra, 429 U.S. at 270 n.21 26/ In this regard, the City contends
that the need for Improved housing and general revitalization in 
Southwest Yonkers was so pressing that, whether or not race was a 
factor in site selection, precisely the same sites would have been

1^5-



chosen. In support, the City points to the Community Renewal Plan 
prepared by Patrick Kane of KRS Associates, an outside planning 
consultant, and the testimony of David Portman, the City's expert 
witness on urban planning.

However, for many of the same reasons that this evidence 
failed to support the City's contention that its site selections 
were jji fact unrelated to race, it likewise fails to suggest that 
the same sites would have been selected even if race had not been an 
issue. While Dr. Portman testified that an extreme concentration 
of subsidized housing in the Southwest would not have been 
unreasonable from a planning perspective, he also acknowledged that 
it was not the only means of responding to the needs of the area, 
not even necessarily a preferable means. Such testimony scarcely 
suggests a strategy so compelling that it would have been pursued 
even if the decisionmaking process had not been influenced by the 
perceived need to select sites that would maintain existing 
patterns of segregation. Similarly, Patrick Kane's recommended 
plan, as reflected in the CRP, tells little about what might have 
happened in Yonkers if race had not been an issue in site selection 
since the plan itself was recommended after thorough research into 
past and present attitudes in Yonkers —  research which Kane 
acknowledged to have led him to believe that there was pervasive 
community opposition to subsidized housing in East Yonkers, that 
the opposition was racially influenced, and that the prospects for 
approval of any site there were virtually nonexistent.

Moreover, much of the same evidence which has confirmed 
that this racially influenced community opposition did in fact have



an effect on site selection —  namely, evidence of disregard or 
compromise of previously stated planning objectives; failures to 
consult the City's Planning Bureau; the testimony of the City's 
Planning Director with respect to his opposition to many of the 
sites chosen by the City; the differing levels of scrutiny given to 
sites depending upon whether they were located east or west of the 
Saw Mill River Parkway; and inconsistent application of planning 
criteria —  also preclude any rational finding that precisely the 
same sites would have been selected even if race had not been a 
factor. In this regard, it bears particular emphasis that the 
widely acknowledged negative effects (economic as well as racial) 
that have resulted from the concentration of subsidized housing in 
Southwest Yonkers did not become apparent only after the facb. 
Instead they were the subject of repeated warnings (often from the 
City's own Planning Director) which were repeatedly ignored by City 
officials.

In ̂ um, the record clearly demonstrates that race has had 
a chronic and pervasive influence on decisions relating to the 
location of subsidized housing in Yonkers. While the precise 
configuration of subsidized housing which would have arisen in the 
absence of that influence necessarily remains a matter of 
speculationr it is clear that "but for* that influence, a 
sighnificantly different result would have obtained. See Givhan v. 
Western Line Consolidated School District, 439 U.S. 410, 416-17 
(1979).



SCHOOLS
I. THE CLAIMS OF UNLAWFUL SCHOOL SEGREGATION 
This case is similar in some respects to the many cases 

which have arisen since the Supreme Court's 1954 decision in Brown 
V. Board of Education declaring that state-mandated racial 
segregation in public schools was unlawful. In subseguent cases, 
when a particular public school system has been found to be 
racially segregated, that condition has typically arisen as a 
result of a variety of complex and interrelated acts and omissions, 
rather than the overtly discriminatory operation of a statutorily- 
mandated dual school system. Thus, although racially segregated 
school facilities mandated by statute have been outlawed in New 
York State since the early 1900's, N.Y. Educ. Law §3201 (McKinney 
1970), this fact is merely the beginning of our inquiry, for we 
must determine whether the numerous actions and omissions of the 
responsible City and school authorities in Yonkers have 
nevertheless created or maintained a segregated school system with 
the impermissible segregative intent proscribed by federal statute 
and by the Constitution.

In three significant respects, however, this case is
different from the typical school desegregation case: the
plaintiffs in this case have joined claims of unlawful school

■ • • '17/segregation with claims of governmental housing discrimination; 
plaintiffs have alleged that both the City and the Board should be 
held liable for the intentional segregation of the Yonkers public 
schools; and resolution of plaintiffs' claims requires us to
consider whether governmental housing discrimination is relevant to 
the determination of liability for school segregation.



Plaintiffs allege that the Board, by various acts and 
omissions, has caused the Yonkers public school system to become 
and remain racially segregated. Plaintiffs have sought to
establish that the Board has engaged in various types of conduct 
which were intended to bring about and perpetuate such segregation. 
These segregative practices may be summarized in six major 
categories; (1) a pattern of segregative decisions with respect to 
the opening and closing of schools, .and the alteration of 
attendance zone boundaries for racial reasons; (2) the assignment 
of faculty and administrative staff according to the racial
composition of the students at individual schools; (3) the 
discriminatory classification, transportation, and other treatment 
of minority Special Education students; (4) the steering of
minorities into vocational education programs and the subsequent 
screening of minorities out of such programs and into inferior 
general academic programs; (5) the failure to provide minority 
students with equal educational opportunities; and (6) the failure 
to adopt, for racial reasons, various desegregative school
reorganization and educational reform plans. Plaintiffs allege 
that these acts and omissions constitute a sufficient basis for a 
finding of unlawful school segregation independent of any actions
or omissions on the part of the City.

In response, the Board alleges that the racial imbalance
that exists in many of the district's schools has been caused by 
social, economic and demographic factors that are beyond its 
control. The Board contends that the various acts and omissions 
noted above were not intentionally segregative (or, in some

\^G)



instances, not in fact segregative regardless of intent) and that 
Board policies were essentially irrelevant in any event to the 
causes of racial imbalance in the schools. In addition, the Board 
contends that no affirmative action is constitutionally required of 
it to alleviate racial imbalance in the schools not caused by any 
intentionally segregative acts of the Board, and that adherence to 
its neighborhood school policy has been race-neutral in intent and 
is in any event an insufficient legal basis for a finding of
liability.

As for the City, plaintiffs have sought to establish its 
liability for school segregation based on a number of factors, all 
of which have allegedly served to create and maintain racial 
imbalance in the Yonkers public schools. Plaintiffs claim that the 
City has intentionally confined the construction and placement of 
subsidized housing to Southwest Yonkers in part to confine minority 
students to public schools in this area of the city, and that such 
conduct is, standing alone, a basis for finding the City liable for 
the racial segregation of the schools. In addition, plaintiffs 
contend that the City's involvement in educational affairs 
including the site selection process for newly constructed schools; 
the Mayor's appointment of Board members; and the City Council's 
budgetary control over the Board and "will of the Council" 
resolutions —  has given the City significant influence and 
effective control over the Board and has been designed in part to 
perpetuate the racial segregation of the Yonkers public schools. 
Plaintiffs contend that the City's influence and control over 
school affairs, together with its subsidized housing practices.

n n



constitute adequate grounds for holding the City liable for the
racial segregation of the schools.

The City contends that neither its housing practices nor
its involvement in school affairs are a proper basis for a finding 
of municipal liability for the racial segregation of Yonkers public 
schools. The City argues that a policy of restricting the location 
of subsidized housing to Southwest Yonkers, whether or not 
violative of Title VIII and the Constitution, does not constitute 
legal grounds for a finding of unlawful school segregation and 
that, as a factual matter, its housing practices have not caused or 
exacerbated racial segregation in the Yonkers public schools. The 
City also argues that it has neither legal nor practical control 
over the Board of Education and thus is not responsible for the 
segregation of the Board-operated schools. The City has attempted 
to show that the City's budgetary appropriation power, the mayoral 
appointments to the Board, the City's involvement in school site 
selection, and City Council resolutions have not resulted in City 
control over the school district and have not been used to 
intentionally cause or maintain racial segregation in the Yonkers
public schools.

II. LEGAL STANDARDS
The legal standards governing the school desegregation 

portion of this case have evolved from the Supreme Court's historic 
decision in Brown v. Board of Education, 347 U.S. 483 (1954). In 
Brown, the Supreme Court held that statutorily imposed separate 
school facilities for blacks and whites were unconstitutional.



Since that decision, a myriad of school desegregation cases have 
established that less blatant forms of racial segregation in public 
schools are similarly unlawful. It is equally clear, however, that 
the mere existence of racially segregated schools does not 
constitute a federal constitutional or statutory violation. 
Columbus Board of Education v. Penick, 443 U.S. 449, 464 (1979); 
Keyes v. School District No. 1, 413 U.S. 189, 198 (1973); Alexander 
V. Youngstown Board of Education, 675 F.2d 787 , 791 (7th Cir.
1982); Arthur v. Nyguist, 573 F.2d 134, 141 (2d Cir.), cer_^
denied, 439 U.S. 860 (1978). Similarly, the mere existence of ^  
facto segregation does not create an obligation on the part of a 
school board to alleviate or rectify such segregation. See Diaz v. 
San Jose Unified School District, 733 F.2d 660, 664 (9th Cir. 1984) 
(en banc), cert, denied, 105 S.Ct. 2140 (1985); Alexander v. 
Youngstown Board of Education, supra, 675 F. 2d at 791; Parent 
Association of Andrew Jackson High School v. Ambach, 598 F.2d 705, 
713 (2d Cir. 1979) ("If there is no ^  jure segregated school
system, there is no judicially-enforceable constitutional 
obligation, under existing law, to take affirmative action to 
remedy racial imbalance."). Under current legal standards,
plaintiffs have the burden of demonstrating that (1) the Yonkers 
public schools are racially segregated; (2) such segregation was 
created or maintained by the intentionally segregative conduct of 
governmental authorities; and (3) such conduct has affected the 
school system as a whole. See Keyes v. School District Nq.„_l, 
supra, 413 U.S. at 205-09 (1973); Arthur v. Nygui^, supra, 573
F.2d at 141.



Each of these elements has been explored in prior school 
desegregation decisions. As for the first element, the existence 
of racial segregation need not be numerically absolute so long as 
the public schools are substantially segregated and racially 
identifiable. Arthur v. Nyguist, 415 F.Supp. 904, 912 n.9
(W.D.N.Y. 1976), aff'd on reconsideration, 429 F.Supp. 206
(W.D.N.Y. 1977) , aff'd in part and rev'd in part on other grounds,
573 F.2d 134 (2d Cir.) , cert, denied, 439 U.S. 860 (1978); see also 
Keyes v. School District No. 1, supra, 413 U.S. at 196. Blacks and 
hispanics are to be considered as a group in determining whether 
the school system is racially segregated. S ^  Ke^M v. School 
District NO. 1, supra. 413 U.S. at 197-98; v. Community School
Board of Education, New York School District #21, 512 F.2d 37, 45 
n.lO (2d Cir. 1975); see also Alioto Dep. 34; Schainker Dep. 32;
Tr. 10,973-74 (Jacobson).

The second element encompasses a number of legal 
concepts: causation, state action and intent. As for caustion,
the conduct of school authorities need not be the sole cause of 
racial segregation, but such conduct cannot be of trivial or ^  
minimus impact. Plaintiffs must demonstrate that the defendant's 
conduct has contributed in a substantial manner to the creation or 
perpetuation of racial segregation. Berry v. School District of 
Benton Harbor, 442 F.Supp. 1280, 1292 (W.D.Mich. 1977). In
addition, the "conduct" of school authorities includes omissions as 
well as affirmative acts. Thus, although the mere failure to act, 
without more, does not form the basis for a finding of ^  l^re 
segregation, see Hart v. Community School Board, supra, 512 F.2d at

Q O O



48; Brody-Jones v. Macchiarola, 503 F.Supp. 1185, 1248 (E.D.N.Y.
1979), the inaction of school authorities may be considered along 
with evidence of school board action in determining whether the 
racial segregation of the public schools has been brought about or 
maintained in an unlawful manner. See Parent Association of Andrew 
Jackson High School v. Ambach, supra, 598 F. 2d at 714; NAACP v. 
Lansing Board of Education, 559 F.2d 1042, 1046-47 (6th Cir.),
cert, denied, 434 U.S. 997 (1977); Morgan v. Kerrigan, 509 F.2d 
580, 586 (1st Cir. 1974), cert, denied, 421 U.S. 963 (1975).

The intent requirement has been discussed previously in 
this Opinion. See HOUSING II supra. In applying this require­
ment, many of the school desegregation cases of the 1970's relied 
in significant part on evidence that the conduct of the relevant 
school authorities had a foreseeably segregative impact. Some 
courts went so far as to hold that a

presumption of segregative purpose arises when 
plaintiffs establish that the natural, prob­
able, and foreseeable result of public offici­
als' action or inaction was an increase or per­
petuation of public school segregation. The 
presumption becomes proof unless defendants 
affirmatively establish that their action or 
inaction was a consistent and resolute appli­
cation of racially neutral policies.

Oliver V. Michigan State Board of Education, 508 F.2d 178, 182 (6th
Cir. 1974), cert, denied, 421 U.S. 963 (1975); see United States
V. Texas Education Agency, 532 F.2d 380, 388-89 (5th Cir.), v a c a M
and remanded sub nom. Austin Independent School District v. United
States, 429 U.S. 990 (1976); United States v. School District of
Omaha, 521 F.2d 530 , 536 (8th Cir.), cer_^ denied, 423 U.S. 946
(1975); see also Hart v. Community School Board, supra, 512 F.2d

’̂Ol



at 51. While the Supreme Court, in Dayton Board of Education v. 
Brinkman, has rejected the use of such a presumption as a means of 
establishing segregative intent or shifting the burden of 
persuasion on the intent issue to the defendant, 443 U.S. 526, 536 
n.9 (1979), the Court nevertheless reaffirmed that proof of
foreseeable consequences is one type of quite relevant evidence of 
racially discriminatory purpose." Id.; see also Columbus Board of 
Education v. Penick, supra, 443 U.S. at 464-65 (foreseeable effect 
of decision is "one of the several kinds of proofs from which an 
inference of segregative intent may properly be drawn"); Alexand^ 
V. Younqstown Board of Education, supra, 675 F.2d at 792-93 (court 
may infer discriminatory intent from acts or policies with foresee- 
ably segregative result; inference is permissible rather than
mandatory) .

In evaluating whether the decisions of school authorities 
were motivated by segregative intent, courts have analyzed evidence 
of foreseeable impact in conjunction with other evidence or 
surrounding circumstances in order to determine whether the 
challenged decision was intentionally segregative. Thus, while a 
presumption of intent does not automatically flow from evidence of 
foreseeability, an inference of intent may be appropriate where a 
foreseeably segregative decision is made despite the existence of 
less segregative alternatives which were consistent with the 
educational objectives or policies of school officials or were even 
more in keeping with these goals or policies. See Arthur v. 
Nvauist, supra, 573 F.2a at 142;'̂ / United S t a ^  v. Board of 
School Commissioners of Indianapolis, 573 F.2d 400, 413 (7th Cir.),

3 o Q



cert, denied, 439 U.S. 824 (1978); Penick v. Columbus Board of
Education, 429 F.Supp. 229 , 240-41 (S.D.Ohio 1977), aff d in part 
and vacated in part, 583 F.2d 787 (6th Cir. 1978), a f 443 U.S. 
449 (1979); Berry v. School District of Benton Harbor, 494 F.Supp. 
118, 123 (W.D.Mich. 1980). The lack of a persuasive or credible 
explanation for lonezeenbly n-gregative conduct of school 
authorities may also justify an inference that such conduct was 
intentionally segregative. See United States v. Texas Education 
Agency, 600 F.2d 518, 528-29 (5th Cir. 1979); Arthur v. Nyguist, 
supra, 415 F.Supp. at 939-41; Berry v. Benton Harbor, supra, 494 
F.Supp. at 123. A consistent pattern of foreseeably segregative 
decisions may also suggest that the resulting segregative 
consequences were intentional, rather than accidental or 
unavoidable, in nature. Parent Association of Andrew Jackson
High School v. Ambach, supra, 598 F. 2d at 713; United— Stat^ v. 
Board of School Commissioners of Indianapolis, supra, 573 F.2d at 
412. In short, the Court must examine all the relevant facts and 
circumstances surrounding the foreseeably segregative decisions of 
school authorities in order to determine whether a finding of
segregative intent is warranted.

As noted previously, foreseeable segregative impact is 
not the only evidence upon which a finding of segregative intent 
may properly be based. A court may also examine the historical 
background of decisions, the specific sequence of events leading up 
to such decisions, departures from normal procedural sequence or 
substantive criteria normally considered important by the 
decisionmaker; contemporaneous evidence concerning the

3 03



decisionmaking process; or the testimony of decisionmakers 
regarding the purposes of official acts. In addition, proof that 
officials were responsive to the discriminatory purposes of others 
in making a decision may be relied upon to establish segregative 
intent. See HOUSING II supra. If plaintiffs are successful in
establishing their prima facie case of intentional segregation of
Yonkers public schools, the burden is then on the defendant to
establish that the same segregative conduct would have occurred 
"even had the impermissible purpose not been considered." Village 
of Arlington Heights v. Metropolitan Housing Development Corp_̂ , 420 
U.S. 252, 271 n.21 (1977); see Brody-Jones v. Macchiarola, supra,
503 F.Supp. at 1238.

Third, the intentionally segregative conduct of school
authorities must result in the creation or perpetuation of racial 
segregation throughout the school district; that is, the 
segregation must be systemwide. Plaintiffs need not specifically 
show, however, that every school or student was affected by the 
unlawful conduct of the defendant. Rather, plaintiffs must 
demonstrate that school authorities have effectuated an 
intentionally segregative policy in a meaningful or significant 
portion of the school system. Such proof creates a presumption 
that the racial segregation of the remaining segment of the system 
is not inadvertent, and places a burden of proof on the defendant 
to show that other segregated schools within the system are not 
also the result of intentionally segregative conduct. Ke^es v. 
School District No. 1, supra, 413 U.S. at 208-11.

Considerable ambiguity exists as to the relevance of a

^ 0 4



school board's application of a neighborhood school assignment 
policy to its liability for school segregation. A number of courts 
have concluded that adherence to such a policy is not a £er ^  
violation of the Constitution. These decisions have observed that 
the application of such a policy is supported by a variety of 
nondiscriminatory considerations and therefore m.ay generally be 
considered a permissible, albeit segregative, form of official 
action. See Keyes v. School District No. 1, supra, 413 U.S. at 245- 
48 (Powell,J., concurring in part and dissenting in part); Spangler 
V. Pasadena City Board of Education, 611 F.2d 1239, 1244-45 (9th 
Cir. 1979) (Kennedy,J., concurring); United States v. Texas 
Education Agency, 564 F.2d 162, 168-69 & n.9 (5th Cir. 1977),
petition for rehearing denied, 579 F.2d 910 (5th Cir. 1978) (en 
banc), cert, denied, 443 U.S. 915 (1979); NAACP v. Lansing Board 
of Education, supra, 559 F.2d at 1049; Deal v. Cincinnati Board of 
Education, 369 F.2d 55, 60 (6th Cir. 1966), cert, denied, 389 U.S. 
847 (1967); Brody-Jones v. Macchiarola, supra, 503 F.Supp. at 1247. 
Thus, a school district with no prior history of d e jrure
segregation is not required to abandon its neighborhood school
policy merely because adherence to such a policy results in the
perpetuation of segregated schools. See Diaz v. San Jose Unified
School District, supra, 733 F.2d at 664.

It is also apparent, however, that the mere invocation of 
the neighborhood school policy as a defense to a school 
desegregation lawsuit is not dispositive of the liability 
determination. Instead, a school board’s alleged application of 
and adherence to a neighborhood school policy must be examined in

5o5



the context of other official acts and omissions in order to 
determine whether the policy exists and is in fact free of 
segregative purpose or intent. Among the most relevant factors to 
consider is the extent to which the neighborhood school policy is 
applied in a consistent manner; for example, the use of optional 
or non-contiguous attendance zones or out-of-district student 
transfer policies has been relied upon as evidence that a 
neighborhood school policy is either non-existent or sufficiently 
marked by segregative exceptions so as to be an implausible
explanation for school segregation. Columbu^— Board— of
Education v. Penick, supra, 443 U.S. at 461-42 & n.8-9; A r t h u r v. 
Nyquist, supra, 573 F.2d at 145 n.21; NAACP v. Lansing Board_gf 
Education, supra, 559 F.2d at 1056-57; ArmstronS v. O'Connell, 451 
F.Supp. 817, 829-30 (E.D.Wis. 1978); Berry v. Benton Harbor,
supra, 442 F.Supp. at 1325-26. In rejecting the neighborhood
school policy defense, courts have also relied upon a school 
board's selection of segregative student assignment or school 
construction policies where less segregative alternatives were 
available which could have been implemented without violating the 
district's neighborhood school policy. See D j ^  v. San Jose 
Unified School District, supra, 733 F.2d at 665. Finally, a number 
of courts have held that a school district's adherence to a
neighborhood school policy is constitutionally unacceptable where 
discriminatory public housing practices have contributed to the 
racial segregation of the neighborhoods, a conclusion we will 
explore further in our Conclusions of Law. See SCHOOLS VI.B.l.c 
infra. In short, a full examination of the facts and circumstances 
surrounding a school board's formulation of and adherence to a

30 (o



neighborhood school policy is appropriate in determining whether 
the segregative impact of such a policy is the result of 
impermissibly discriminatory intent.

III. THE YONKERS PUBLIC SCHOOL SYSTEM 
The Yonkers School District and Yonkers Board of 

Education were established in 1831. GX 125. The Yonkers School 
District is coterminous with the geographic boundaries of the City 
of Yonkers. According to state law, the Board is an independent 
municipal corporation subject to the control of the New York State 
Board of Regents and the Commissioner of Education. N.Y.Const., 
Art. 5, S 4; N.Y. Educ. Law §§ 305, 2551 (McKinney 1970). The 
Board is an agent of the state and is charged with the responsibil­
ity of providing education for public school children in the city. 
The Board consists of nine members who are appointed by the Mayor 
for five year staggered terms of office. Among the Board's powers 
is the authority to hire the Superintendent of Schools, the school 
district’s chief administrative officer.-^/ The Superintendent and 
his or her administrative staff are often involved in the 
development and implementation of policies affecting school 
construction and closings, the setting and changing of attendance 
zone lines, grade structure, personnel policies, and other 
educational matters. The Board is ultimately responsible for 
determining and approving the policies of the school district with
respect to the aformentioned matters.

The City of Yonkers also has specific legal powers
relating to the operation of the Yonkers public schools. Under



state law, the Yonkers City Council is empowered to appropriate an 
annual budget for the school district. The Mayor of Yonkers is 
also responsible under state law for appointing members of the 
Board of Education. City officials also have participated in the 
selection of sites for the construction of schools and in a variety 
of other educational matters. The manner in which these leaal 
responsibilities and participating roles have in fact been 
exercised and the resulting impact on the Yonkers public schools 
will be explored further in our discussion of the City's liability
for the racial segregation of the schools.

The segregation of the Yonkers public schools is best 
understood against the backdrop of the demographic changes 
occurring in the city and the Board's role in minimizing and 
exacerbating these trends. To a large extent, the development of 
the racial segregation in the Yonkers public schools has reflected 
the residential segregation of geographic areas surrounding these 
schools. We have previously described in some detail the 
demographic development of the city, HOUSING I su£ra, and we
incorporate that discussion herein. We will discuss the 
development of the district's school system and its increasing 
racial segregation in further detail as part of our findings 
regarding school openings and closings and school attendance zone
changes. See SCHOOLS IV.A.1 infra.

AS an initial matter, it is helpful to understand the
geographic, structural, numerical, and other characteristics of the 
Yonkers public schools.22’/ as of the 1980-81 school year, the 
Yonkers public school system was comprised of twenty-three

ao8



elementary schools, two combined elementary/middle schools, Eour 
middle schools, and five high schools. The elementary schools 
consist of grades K-6, with three schools enrolling a small number 
of pre-kindergarten (pre-K) students as well.^'/ Two schools, 
Emerson and Twain, contain students from grades K-8. (The 
elementary school portion of Twain is also referred to as School 
11; the elementary portion of Emerson is also referred to as 
School 34). The middle school portions of these schools draw 
students from elementary school attendance areas other than that of 
their respective elementary school components. The five high 
schools consist of four general academic high schools and the 
Saunders Trades and Technical High School, a districtwide 
vocational and technical school in Central Yonkers. The district 
also operates a Career Center for high school students and post­
graduate individuals, offering various occupational education 
programs. SB 746, at 114.^ Most of the district's schools also 
enroll students who have been assigned to one of the district’s 
Special Education programs. The attendance zone maps for the 
Yonkers public schools are included as Appendix B, C and D to this 
Opinion. See SB 626-628. The school zone boundaries reflect those
in existence as of the 1980-81 school year.

The decline in white population in Yonkers and the 
simultaneous rise in minority residents has been reflected in 
public school enrollments as well. This phenomenon is reflected in 
the following table:

Q o ‘=|



Yonkers Pnhlic School Student Population

Year
1967
1970
1975
1980

SJ/White
25,875
25,049
21,514
13,840

% White 
85 
82 
72 
63

Minor i ty 
4,421 
5,583 
8,195
8,023

% Minority 
15 
18 
28
37

Total
36,296
30,632
29,709
21,863

GX 64. Thus, from 1967 to 1980 , the district's white student 
enrollment declined by over 12,000, or 47%; minority student
enrollments rose by over 3,600, or 81%.

The decline in white student enrollment during the 1970's
is also reflected in the non-public school enrollments during this
period of time;

Year
1969
1970 
1975 
1980

Yonkers Non-Public School Student Population 
White % White Minority % Minority 
10,011 94 612 6
9,291 93 706 7
7,071 88 970 12
6,149 79 1,654 21

Total
10,623
9,997
8,041
7,803

SB 98. As these figures reflect, the non-public school white 
student enrollment has decreased at a slower rate than for public 
schools, while the non-public school minority enrollment has 
increased at a far more rapid rate. White student enrollment has 
declined by almost 4,000 students, or 39%; minority student 
enrollment has increased by just over 1,000 students, or 170%^

^ l O



The general decline in student enrollment is reflected in 
attendance figures for individual public schools as well. From 
1973 to 1980, only five of the district's 25 elementary schools 
experienced an increase in enrollment —  Schools 10, 18, 19, 23 and 
27, all in Southwest Yonkers. On the secondary school level, only 
two schools have experienced increases in student enrollment during 
this period —  Saunders, primarily because of its 1980 relocation 
to the recently built Burroughs facility; and Yonkers High School, 
which was relocated in 1974 to a newly constructed facility and 
enrolls students from the School 10, 18, 19, 23 and 27 attendance 
zones.

The extent to which a school system is racially
segregated can be determined by examining a number of factors: the 
racial composition of each school's student body, the racial 
composition of the school's faculty and staff, the community's and 
school administration's perceptions or attitudes toward the 
schools, and the physical characteristics of the schools. Keyes v.
School District No. 1, supra, 413 U.S. at 196; Berr^ v. Benton
Harbor, supra, 442 F.Supp. at 1298. An evaluation of these
criteria reveals that the racially segregated nature of the Yonkers
public schools is systemwide.

By 1980-81, the school year in which this suit was filed,
the segregated nature of the Yonkers public schools' student 
enrollment was clear. The following represents the racial 
enrollment data for the district's twenty-five elementary schools, 
six middle schools and five high schools.

3  \ \



chool Location Wh i te Minor i ty Total
5 Central 373 (90%) 42 (10%) 415

6 SW 4 (21%) 219 (98%) 223

8 NE 307 (99%) 2 (1%) 309

9 SW 150 (37%) 254 (63%) 404

10 SW 45 (10%) 416 (90%) 461

11(Twain) SE 440 (96%) 18 (4%) 458

13 SW 503 (62%) 307 (38%) 810

14 SE 393 (96%) 16 (4%) 409

16 NW 235 (90%) 27 (10%) 262

17 SE 255 (98%) 8 (2%) 263

18 SW 177 (25%) 519 (75%) 696

19 SW 96 (19%) 400 (81%) 496

21 SE 381 (94%) 23 (6%) 404

22 NW 222 (90%) 24 (10%) 246

23 SW 366 (55%) 303 (45%) 669

25 NW 39 (12%) 276 (88%) 315

26 NE 249 (94%) 15 (6%) 264

27 SW 206 (43%) 278 (57%) 484

28 NE 257 (95%) 14 (5%) 271

29 NE 252 (98%) 6 (2%) 258

30 SE 316 (93%) 25 (7%) 341

31 NE 155 (79%) 41 (21%) 196

32 NE 237 (93%) 19 (7%) 256

King SW 14 ( 2%) 554 (98%) 568

34(Emerson) NW 223 (90%) 25 (10%) 248

TOTAL 5,895 (61%) 3,831 (39%) 9,726

Q  \ 9-



Middle Schools

School

Emerson (7-8) 
Fermi (6-8) 
Hawthorne (7-8) 
Longfellow (6-8) 
Twain (7-8) 
Whitman (7-8) 

TOTAL

Location White Minor i ty Total

MW 301 (63%) 178 (37%) 479
SW 134 (38%) 221 (62%) 355
sw 222 (31%) 493 (69%) 715
SW 13 ( 6%) 216 (94%) 229
SE 646 (96%) 27 ( 4%) 673
NE 604 (94%) 35 ( 6%) 639

1,920 (62%) 1,170 (38%) 3,090

School

High Schools 

Location Wh i te Minority Total

Gorton NW 634 (53%) 573 (47%) 1,207

Lincoln SE 1,599 (98%) 38 ( 2%) 1,637

Roosevelt NE 1,388 (91%) 134 ( 9%) 1,522

Saunders Central 733 (84%) 144 (16%) 917

Yonkers SW 875 (38%) 1,422 (62%) 2,297

TOTAL 5,269 (70%) 2,311 (30%) 7,580

SUBTOTAL, ALL SCHOOLS 13,084 (64%) 7,312 (36%) 20,396

Special Education 666 (53%) 583 (47%) 1,249

Pre-kindergarten 46 (51%) 44 (49%) 90

Career Center 39 (38%) 64 (62%) 103

TOTAL, ALL SCHOOLS 13,840 (63%) 8,023 (37%) 21,863

3i3



Thus, in 1980, nineteen out of twenty five elementary 
schools were over 80% white or 80% minority. Almost one-half of 
the elementary schools' minority enrollment —  1865 students, or
4 9 % —  attended five schools in West Yonkers. Three of these 
schools were at least 90% minority; the other two —  Schools 19 and
2 5  were 81% and 88% minority, r espect ively. Over 70% of the
district's white elementary school students attended schools with 
at least 90% white students.

Racial imbalance among the district's secondary schools, 
while not as stark as on the elementary school level, was 
nevertheless clear for the majority of these schools. The two East 
Yonkers middle schools. Twain and Whitman, had between them only 
sixty-two minorities among their 1,312 students, or 5% of the 
district's minority middle school enrollment; the district's three 
Southwest Yonkers middle schools, Fermi, Hawthorne and Longfellow, 
each were at least 62% minority and enrolled 79% of the district's 
minority middle school students. Only one middle school —  Emerson 
Middle School in Northwest Yonkers —  can be characterized as a 
racially balanced school.

The district's “regular high schools followed a similar 
pattern of racial imbalance. Lincoln and Roosevelt, the two East 
Yonkers High Schools, enrolled 8% of the district's minority high 
school students. Yonkers High School, a 62% minority school in 
Southwest Yonkers, enrolled 62% of the district's minority 
students; along with Gorton, the two West Yonkers high schools 
enrolled 92% of the district's regular minority high school
students.



In sum, 64% of the district's white students were 
enrolled in schools of at least 90% white students, while 28% of 
the district's minority students were enrolled in schools with at 
least 80% minority enrollment. While some schools, such as School 
13 (38% minority). School 23 (45%), School 31 (21%), and Emerson
Middle School (37%) fairly reflect the racial population of Yonkers 
and the school population in particular (37% minority) , most 
schools in the district are identifiably white or minority based on 
the factors discussed above. Oliver v. Michigan State Board_of
Education, supra, 508 F.2d at 183.

Other attributes of the Yonkers public schools also serve
to delineate them.as racially identifiable. The racial imbalance 
of the school district's faculty and administrative staff is 
similar to the imbalance in student enrollments in its pattern of 
racial imbalance at all grade levels of the school system. As set 
forth in more detail later in these findings, the bulk of . the 
district's minority staff members are assigned to schools with 
predominantly minority student enrollments. Many of the district's 
predominantly white schools, on the other hand, have few, or in 
some cases, no minority staff. While this disproportion has been 
reduced somewhat in recent years, the racial imbalance is still
significant. See SCHOOLS IV.E infra.

The differences in the physical facilities of Yonkers
public schools also adds to the racial identif iabili ty of the 
school system. As will be discussed in greater detail, the 
predominantly minority elementary schools are generally smaller, 
have less recreational space, and are generally charcteristic of



the minority, more urban character of Southwest Yonkers. See GX 
1005. Middle schools with predominantly minority student bodies 
are significantly older, more limited in site size and recreational 
facilities, and similarly reflect their predominantly minority 
urban surroundings. Differences in the district's high school 
facilities, while considerably less drastic than on the elementary 
school level, are nevertheless detectable. See SCHOOLS IV.B.l
infra.

The community's and school officials' perceptions of the 
Yonkers public schools also support our finding that the Yonkers 
public school system as a whole is racially segregated. The racial 
identifiability of these schools generally reflects the demographic 
makeup of the communities in which these schools are situated, 
particularly at the elementary school level where neighborhood 
school assignments are largely responsible for this correlation. 
The evidence demonstrates that community and administrative 
personnel generally associate schools in Southwest Yonkers as 
minority schools, particularly Schools 6, 10, 18, 19, and King,
which have long been considered minority schools. The only three 
exceptions to the general correlation of geographic location and 
racial identifiability are School 13, a 38% minority school located 
in the Southeasternmost section of Southwest Yonkers (an 
historically white area); School 23, a 45% minority school, located 
north of School 13; and School 25, an 88% minority school abutting 
the Hudson River in Northwest Yonkers. Even Schools 13 and 23 are 
identifiably minority to the extent that they border on elementary 
school zones for School 21 (6% minority) and School 17- (2%

91G



minority), and to the extent that the School 23 zone includes a 
large identifiably minority subsidized housing project (Whitney 
Young Houses). School 25 is located within a narrow strip of land 
which, along with Runyon Heights, has historically been more 
heavily populated by minorities than any other area outside of 
southwest Yonkers. The school's enrollment consists in part of 
students from the Seven Pines subsidized housing project and aouts 
the School 16 (10% minority) zone, an area which has long been an
identifiably white school zone.

On the secondary school level, the pattern is somewhat
less consistent but nevertheless clear. Longfellow has long been 
considered a minority school, with Hawthorne and Fermi more 
recently gaining this general reputation despite the fairly even 
balance among white, black and hispanic students at each of these 
schools. The district's high schools fall within a similar 
pattern. Although some black community members consider Yonkers 
High School (62% minority) to be an integrated school, Ryer Dep. 
29; ^  also Tr. 12,912-13 (Dodson), it is nevertheless clear to
the Yonkers community that Yonkers High School and Gorton High 
School are the two high schools in which the vast majority of the 
city's minority students are enrolled. Yonkers High School 
receives students from the School 10, 18, 19 and King elementary 
school zones; Gorton receives students from the School 6, 25 and 
King zones and was considered a school marked by racial 
disturbances and minority identifiability even prior to achieving 
its predominantly (i.e., over 50%) minority status in 1982. Tr. 
5505-06 (Minervini); ^  SCHOOLS IV.F.2 infra. In sum, community

S\1



and school administration perceptions are consistent with the other 
indicia ot racial segregation which exist in the Yonkers public
school system.

In order to properly evaluate many of the acts and 
omissions of the Board with resoect to student assignment policies 
and other enrollment-related practices, it will be necessary to 
refer to numerical evidence of school capacity. The available
capacity data for presently operating and previously closed public 
schools are summarized in Appendix E to this Opinion. As these 
figures reflect, significant variations among the particular 
sources of capacity data are generally the exception rather than 
the rule. In analyzing the feasibility of particular courses of 
action, we will note these variations (for example, by giving a 
range of capacity figures and the' source of these figures) to the
extent applicable.

The Yonkers public school system has undergone many 
grade reorganizations throughout its history, particularly in 
recent years. Originally organized in a K-8, 9-12 fashion, the
district gradually moved toward a more typical elementary-middle 
(or junior high^)-high school structure subsequent to the creation 
of eight middle school attendance zones in 1938. Some facilities, 
such as Schools 16, 25 and 27 in West Yonkers and Schools 4, 5, 8, 
11, 14, 15 and 17 in East Yonkers, continued to serve both
elementary and middle school students until the 1950's and early 
1960's, when additional middle schools such as Lincoln, Gorton and 
Whitman were constructed and expanded. By 1967-68, the district

218



was organized primarily in a K-6, 7-9, 10 12 pattern.
Since 1967, the district's grade structure has undergone 

considerable change. The opening of King Intermediate School m  
1969 brought about the distict's first 4-6 school, and with it a 
number of K-3 feeder schools. By 1972, the K-5 elementary school 
was introduced and eventually became the district's most common 
grade structure when the Board adopted Superintendent Robert 
Alioto's 1973 school reorganization recommendations. The stated 
reasons for recommending implementation of a K-5, 6-8, 9-12 grade 
structure were the fewer discipline problems and increased 
opportunities for educational innovation and individualized 
instruction- at- the elementary; school level, and the closer 
intellectual^ physical, psychological, and social resemblance 
between sixth and seventh graders than between fifth and sixth 
graders. Before this pattern became even nearly uniform, however, 
the city's fiscal crisis and change in superintendents led to a 
reformulation of grade structure. As part of the 1977 Phase II 
school reorganization proposal. Superintendent Joseph Robitaille 
and his staff recommended the’■adoption of a K-6, 7-8, 9-12 grade 
structure. This recommendation was based on a variety of factors: 
more efficient space utilization; increased teacher and parent 
involvement; the fiscal savings of providing education to sixth 
graders in elementary, rather than middle, schools; and the 
emotional, physical, psychological and educational features of 
eleven-year olds. This proposal was adopted in 1978 and was fully 
implemented at the elementary school level by 1980 and at the

Vsecondary school level by 1981.

s n



IV, THE BOARD OF EDUCATION
A. School Openings, Closings, and Attendance Zone Changes

1. Introduction
The Yonkers school district has witnessed a substantial 

number of school openings, school closings, and attendance zone 
changes during the past forty years. While each of these decisions 
raises its own particular issues and has had a separate racial 
impact, they are all similar in their more geographically limited, 
rather than systemwide, effect. In general, the Board's practices 
in these areas can be examined individually to determine the 
existence of segregative impact and segregative intent.. 
Nevertheless, decisions regarding the opening or closing of a 
particular school have generally been accompanied by related 
adjustments in attendance zones or student assignments. Our 
discussion of Board practices will reflect this interconnection.

A summary of school openings, closings, and attendance 
zone changes is set forth below.

- ■ • u



ELEMENTARY SCHOOLS

School Quadrant Opening Date Closing Date Attendance Zone Change
Since 1950

1 NW 1872 19 54 -

2 SW 1891 1945-/ -

3 SW 1884 1976 1965, 1972, 1975
4 SE 1885 1976 1963, 1965
5 Central 1884 - 1954, 1963, 1976
6 SW 1889

’ r

- 1953, 1966, 1973
7 SW 1887 1976 1963
8 NE 1892 - 1951, 1952, 1954, 1973
9 SW 1894 . r 1963, 1965, 1970, 1976
10 SW 1972 - —

llV SE 1898 1965, 1976
12 SW 1898 1976

: 1 . "  -
1953, 1963, 1973

13 SW 1901 - 1973, 1976
14 SE 1902 - 1952, 1976
15 NE 1902 1976

« ) .
1951

16 NW 1902
.  '  1 ‘ C

- 1953, 1963, 1964, 
1968, 1970, 1976,

17 SE 1903 - - 1952, 1963, 1973, 1976
18 SW 1904 - 1973, 1976
19 SW 1906 - 1965, 1972, 1975, 1976
20 SW 1907 1930^/ -

21 SE 1914 — 1963, 1976

(footnotes on following page)

2 1



ELEMENTARY SCHOOLS 
(continued)

School Quadrant Opening Date Closing Date Attendance Zone Changessince 1950

22 NW 1914 - 1963
23 SW 1918 - 1973, 1976
24 NW 1930 1976 1954, 1963
25 NW 1930 - 1953, 1963, 1964, 1968, 

1973
26 -NE 1936 - 1976
27 SW 1930 - 1976
28 NE 1951 - 1976
29 NE 1951 - 1958-
30 SE 1952 ’< - 1963, 1973 .
31 NE 1953 1982-/ 1976
32 NE 1958 - naec

King SW 196? - 1973, 1976
34®/ NW 1963 — —

a/ Converted into Franklin Junior High School, 
b/ Part of Twain facility.
c/ Converted into Longfellow Junior High School, 
d/ Converted into elementary magnet school, 
e/ Part of Emerson facility.

aaa



MIDDLE AND JUNIOR HIGH SCHOOLS

School Quadrant Opening Date Closing Date Attendance Zone ChangesSince 1953

Burroughs Central 1969 1978-/ 1973, 1976
Commerce SW 1 9 7 3 3 / 1976 -

Emerson NW 1963 - 1973, 1976, 1978
Franklin/
Fermi SW

1926, 1945-/, 
1974j,/

- 1954, 1958, 1963, 1973, 1976

Gorton NW 1954 1973 1963, 1969
Hawthorne SW 1925 - 1958, 1963, 1969, 1973, 1976
Lincoln SE 1953 1972 1963, 1969
Longfellow SW 1930-i/ - 1954, 1963, 1969, 1973, 1976
Roosevelt NE 1954 1959 -

Twain SE 1925, 1971-/ - 1953, 1963, 1973
Whitman NE 1959 — 1963, 1969, 1978

HIGH SCHOOLS
School Quadrant Opening Date Closing Date Attendance Zone ChangesSince 1953

Commerce SW 1930-i/ 1974 -

Gorton NW 1923 - 1963, 1973
Lincoln SE 1957 - 1963, 1973
Roosevelt NE 1926 - 1963, 1973
Saunders SW 1911, 1980-/ - -

Yonkers SW 1927, 1945^/, 
1974 i/ 1957, 1963, 1973

(footnotes on following page)

2 3 3



FOOTNOTES

closing of Ssundcrs Tradss and Tschnical High School 
facility and relocation of Saunders to Burroughs facility.
Represents relocation of Gorton Junior High School students to 
Conunerce facility.

h/ Represents relocation of Franklin Junior High School students to 
~ School 2 facility and relocation of Yonkers High School students 

to Franklin facility.
i/ Represents opening of new Yonkers High School» relocation of 
~ Franklin Junior High School students to old Yonkers High School 

facility, and renaming of Franklin Junior High School as Fermi 
Middle School.

i/ Represents opening of High School of Commerce and relocation of 
Longfellow Junior High School to School 20 facility.

k/ Represents opening of new Twain Junior High School facility.

3 a 4



As the above tables indicate, prior to 1940 the school 
district had constructed twenty-five elementary and seven secondary 
schools. In 1940, the City's minority population was 3.3%, with 
most minority students residing in the School 1, 6, and 18 atten­
dance zone areas. In addition, subsidized housing had just begun 
to be developed in Southwest Yonkers; the concentration of minori­
ties in that area was the result of pre-existing demographic 
patterns. Beginning in 1950, after a fourteen-year hiatus in 
school construction, the district opened a number of new elementary 
and secondary schools primarily in response to the continued 
increase in population density in the northeastern portion of 
Yonkers. SB 848. This school construction was also consistent, 
with a 1934 Columbia University study of the Yonkers School 
District which predicted increased population growth in East 
Yonkers and recommended that school construction plans be formulat­
ed accordingly. SB 10, at 210, 242-43, 248, 256. Elementary
Schools 28, 29, 31 and 32 were built between 1950 and 1957 in North­
east Yonkers, an area which experienced a 64% increase in popula­
tion density during this time. GX 40, at 20. Similar school con­
struction occurred on the secondary school level as well: Lincoln 
and Whitman Middle Schools were opened to serve the Northeast and 
Southeast Yonkers communities, and Emerson Elementary/Junior High 
School was opened in 1963 in response to similar population 
increases in Northwest Yonkers. In 1954, Gorton and Roosevelt High 
Schools expanded to include middle school students, and in 1957 
Lincoln Middle School began to enroll high school students 
previously attending Yonkers High School.

.



By 1963, the school district had constructed and opened 
the vast majority of its public schools. By this time, the concen­
tration of minorities in Southwest Yonkers had increased, including 
significantly minority populations in the attendance zones for 
School 7 (23% minority in 1961) , 18 (23% minority) and 19 (32% 
minority). Cf. GX 56 (10% elementary school districtwide average 
in 1961) . While privately-induced segregated housing patterns had 
continued during this time, the City's segregative involvement in 
the site selection and construction of subsidized housing was not 
at the open and notorious level of later years, nor is there 
evidence establishing a direct relationship at that time between 
the Board's and City's activities. In short, the record suggests 
that the Board's school construction decisions prior to the mid- 
1960's were neither intentionally segregative viewing them in 
isolation, nor a deliberate incorporation or enhancement of public­
ly or privately created residential segregation in the city.

As a result of the district's construction of new school 
facilities, the attendance zone boundaries for existing schools 
began to shrink. On the elementary school level, attendance zones 
for Northeast and Central East Yonkers elementary schools became 
smaller as five new elementary schools were opened. The 1963 open­
ing of Emerson Elementary School caused a similar contraction of 
the neighboring School 16 zone. On the middle school level, this 
phenomenon did not arise until the 1960's, when the opening of 
Emerson and Burroughs Junior High Schools in 1963 and 1969, respec­
tively, resulted in the contraction of the disproportionately 
minority Gorton and Longfellow zones as well as smaller reductions

3 3 G



of the Franklin, Lincoln and Whitman zones. The 1957 opening of 
Lincoln High School halved the attendance zone for the dispropor­
tionately minority Yonkers High School in Southwest Yonkers, which 
rose from an estimated 14% to an estimated 22% minority enrollment.

The effects of this gradual contraction of school zones 
was accompanied by the first signs of community isolationism or 
separation with respect to the public schools. As the Northeast 
Yonkers community population expanded in the 1950's, residents 
bordering on the relatively well-to-do Scarsdale and Bronxville 
communities became identified with these non-Yonkers communities, 
while the Southwest Yonkers minority population slowly but steadily 
began to grow. The "sectional preoccupation" with respect to 
schools, recognized in a 1957 New York State Education Department 
survey of the Yonkers school system, GX 40, at 23, was consistent 
with community opposition to the development of subsidized housing 
in the East Yonkers area. See HOUSING III.E supra.

The period between 1950 and 1965 was also marked by a 
number of physical additions to existing school facilities. GX 
644. On the elementary school level, the most significant of these 
additions, most of which were made to provide additional classroom 
space, were expansions of Schools 13 and 27 in Southwest Yonkers, 
and Schools 28, 29, 30, 31 and 32 in Northeast and Central East 
Yonkers. School 13, originally a twelve-classroom facility, added 
eleven classrooms in 1967 and an additional ten rooms in 1969, at a 
time when its minority enrollment was 5%. In 1960, School 27, at 
the time an approximately 2% minority school, added fifteen 
classrooms to its previous four-room capacity. GX 56. Additions



to East Yonkers schools occurred primarily between 1955 and 1965, a 
pattern consistent with the population influx of those years. SB 
849. On the secondary school level, the most significant additions 
were an expansion of Hawthorne Middle School, which encompassed the 
School 13 and 27 attendance zones, and Roosevelt High School, which 
included the School 29, 31 and 32 zones and part of the School 30 
zone.

Since the mid-1960's up to the filing of this action, the 
district has constructed, or otherwise opened in existing 
facilities, six schools: School 10 and King Elementary Schools, 
Burroughs, Commerce and the new Twain Junior High Schools, and the 
new Yonkers High School. The district has also closed nine 
schools: six elementary schools (3,4,7,12,15,24), two middle 
schools (Burroughs, Commerce), and one vocational high school 
(Commerce). (This excludes the closing of four school facilities - 
- Franklin and Gorton Junior High Schools, Yonkers High School, and 
Saunders Trades and Technical High School —  and relocation of 
their student bodies to other facilities bearing the same or new 
name.)

We note at the outset that since 1970, the Board's school 
openings and closings have been primarily segregative in effect. 
The district's two newest elementary schools both opened as 
racially identifiable, predominantly minority facilities —  School 
10 (73%) and King (57%) . The two newest secondary schools also 
opened as predominantly or disproportionately minority schools ■—  
Commerce Middle School (53%) and the new Yonkers High School (34% 
in 1973 (versus 16% districtwide high school average), increasing



to 57% by 1975). Of the nine schools closed since 1970, three of 
them were among the district's most racially balanced schools — the 
High School of Commerce (19%), School 24 (19%), and Burroughs 
Middle School (19%).̂ '̂  Two closings —  Schools 4 and 15 — simply 
resulted in the transfer of virtually all-white student bodies to 
virtually all-white schools. Only the School 12 and Commerce 
Middle School closings constituted attempts to eliminate heavily 
racially isolated minority schools, and only the Commerce closing 
resulted in significantly desegregative student reassignments to 
predominantly white schools.

The Board has redrawn attendance zone boundaries many 
times during the course of the past fifty years. These changes, 
which have generally been formulated initially by the district's 
administrative staff and then approved by the Board, have been 
implemented for a wide variety of reasons. Several of these 
changes have had little or no racial implications either in their 
effect or their intent and thus will not be discussed further in 
our findings. Others have been made as part of more significant 
school reorganization decisions, such as school openings or 
closings. Only in a few instances has a series of attendance zone 
changes occurred which were unrelated to any school opening or 
closing decision —  changes involving Schools 16 and 25 in 
Northwest Yonkers, and changes involving Schools 6, 9 and 12 in 
Southwest Yonkers. Nevertheless, in order to properly evaluate the 
school opening, closing and related attendance zone changes which 
have occurred, some introductory remarks are in order.

Both plaintiffs and the Board have submitted maps



reflecting attendance zone boundaries for Yonkers public schools. 
GX 1,3,5,7,9,11,13,15,17,19,21,23,25,27,29,31,33,35,37; SB 626- 
628. These maps reflect attendance zones for the elementary and 
middle school levels since 1938, and high school attendance zones 
since 1954, the years in which these attendance zones were formally 
established.

Attendance zone boundaries were first established prior 
to the presence of significant numbers of minorities in Yonkers. 
As the minority population of Southwest Yonkers and the white 
population of East Yonkers have grown, attendance zones have been 
altered to reflect these demographic changes. In general, students 
are assigned to the school in the geographic attendance zone or 
district in which they live. This "neighborhood school policy" 
applies for elementary, middle and academic high school students; 
it has not and does not apply for the district's vocational- 
technical schools, which have enrolled students from throughout the 
city and have had no attendance zone boundaries. Although 
adherence to this policy has generally been consistent on the 
elementary school level, with minor variations between contiguous 
school zones in the same geographic quadrant of Yonkers, the 
testimony of Board members and other school officials reflects that 
the neighborhood school assignment policy is considerably more 
flexible on the middle school and high school level. Fareri Dep. 
208; Hicks Dep. 195-97; Lester Dep. 79; Weiner Dep. 144, 282; Tr. 
11,582 (Guerney) .

Since the 1930's, the Yonkers School District has not 
generally provided subsidized transportation for students between



home and school. The district does provide such transportation, in 
the form of contracted van or bus service or public transportation 
subsidies, for Special Education students (for whom transportation 
must be provided under state law; see N.Y. Educ. Law § 2554(18) 
(McKinney 1981))^ and for students attending special enrichment 
programs at schools outside their home attendance zone. GX 877. 
In addition, a number of students travel to school by using either 
public bus transportation or by obtaining privately-contracted bus 
transportation services. Most of these students are of either 
junior high or senior high school age: students attending Twain, 
Whitman and Emerson Middle Schools and all of the city's high 
schools have at various times used bus transportation to attend 
school. Similar transportation exists at the elementary school 
level for a small number of the district's twenty-five elementary 
schools; specifically. Schools 26, 31 and 32 in Northeast Yonkers, 
and School 22 in Northwest Yonkers. Gold-Marks Dep. 18; Tr. 5330- 
31 (Frauenfelder) ; Tr. 11,241 (Guerney). Prior to the filing of 
this lawsuit, the Yonkers PTA was responsible for obtaining and 
coordinating the use of privately-contracted bus transportation. 
Tr. 5328-29 (Frauenfelder).

There are several exceptions to the district's general 
attendance zone student assignment policy. First, Special Educa­
tion students have, to varying degrees throughout the school dis­
trict's history, been assigned to schools outside the district in 
which these students reside. S ^  SCHOOLS IV.D infra. Second, the 
Board at various times has created options for students to attend a 
choice of particular schools. The most notable options have been



(1) an option created in 1978 for former Burroughs Middle School 
students living in the old School 24 zone to attend either Whitman 
or Emerson Middle School; see SCHOOLS IV.F.3 infra; (2) a policy 
allowing Japanese-American students living in the School 25 zone to 
attend School 16; see SCHOOLS IV.A.4.a infra; and (3) a policy of 
allowing students to attend School 10 out-of-district and allowing 
students living in the School 10 zone to attend School 19; Tr. 
13,013-14 (Dodson); Frank Dep. 279-80.

Third, students may apply on an individual basis for an 
out-of-district transfer from their assigned school zone to a 
school in another area of the district. Since 1971, the district 
has employed written guidelines which school officials use to 
determine whether such transfers should be granted. Transfer 
requests are evaluated on a case-by-case basis and are generally 
granted for educational, psychological, physical or medical 
reasons, or based on "extenuating circumstances." In addition, 
transfers are routinely granted to any student who moves out of a 
school attendance zone prior to the student's last year in the 
school; thus, sixth, ninth and twelfth graders are permitted to 
stay in the school of their former residence for their last year in

Si,the school.iLi/ The out-of-district transfer process is flexible 
enough to allow for transfers not falling within any particular 
category, and has in one or two instances either been applied in a 
manner which would appear to exceed even the broad categories noted 
above, or has simply been circumvented. Batista Dep. 61-62 
(transfer of Councilmember's child from Gorton to Roosevelt); Hicks 
Dep. 20-27 (transfer of black Board member's child from

2 ^ 3 .



predominantly minority school to integrated, educationally 
superior school). On the record before us, however, these 
instances appear to constitute segregative aberrations rather than 
indicia of any consistent or well-established pattern of improper, 
racially segregative student transfers. Cf. Arthur v. Nyquist, 
supra, 415 F.Supp. at 936-39 (transfer policy allowed 2,000-4,000 
white students to attend out-of-district schools, many involving 
transfers from predominantly black to predominantly white schools); 
Berry v. Benton Harbor, supra, 442 F.Supp. at 1312-13.

The Board's effort to demonstrate the absence of a 
pattern of segregative school openings, closings and attendance 
zone boundary changes consisted of the testimony and mathematical 
analysis of Dr. David Armor. Dr. Armor, a sociologist with 
expertise in statistical analysis, prepared a change-by-change 
analysis of each school boundary change beginning in 1951 for 
elementary schools, 1953 for middle schools, and 1957 for high
schools. See SB 810.6—810.8.

For years prior to 1967-68, the school year in which
school enrollment data by race first became available. Dr. Armor 
essentially reconstructed school racial enrollments by analyzing 
census tract data at the census block l e v e l . U s i n g  this data, 
he estimated the school age population within particular census



blocks and then aggregated the number of school-age whites and 
minorities living in the census blocks comprising particular 
attendance zones. For these years, Dr. Armor analyzed the
numerical and racial impact of school boundary changes by comparing 
the estimated racial enrollments of the affected schools the year 
before the change with the anticipated enrollment after the change, 
a number derived by adding or subtracting the estimated number of
students who were rezoned.—

For years beginning with 1967-68, Dr. Armor analyzed the
boundary changes in two ways: first, by comparing the actual
racial enrollment data of the affected schools in the year before 
the change with the expected school enrollment after the change, a 
number derived by adding or subtracting the estimated number of 
students rezoned. Dr. Armor also analyzed those post-1967 changes 
by comparing pre-change actual school enrollment to the actual 
school enrollment in the year subsequent to the change. The
difference between the post-change expected enrollment and post­
change actual enrollment consists of demographic changes occurring 
during the year of' the boundary change, i^e^r shifts in the 
affected school zone's school age population, and differing birth 
rates among incoming and graduating classes at a particular school.

Dr. Armor analyzed the segregative or desegregative 
effect of school attendance zone boundary changes by using two 
mathematical indices. One, the dissimilarity ("D") index, measured 
the extent to which the affected schools in any given boundary 
change were rendered either more or less racially imbalanced 
relative to each other. The second, the exposure ("E") index.

2 2 ) ^



measured the extent to which the students attending the schools 
affected by a particular boundary change experienced more or less 
interracial contact, that is, exposure to members of another race, 
as a result of the change. While the manner in which these indices 
were actually calculated is somewhat more intricate than our brief 
description suggests, the basic concept can be illustrated by an 
example.

Assume for simplicity a school district with two 
elementary schools. School A, a 0% minority school with 100 
students, and School B, a 50% minority school with fifty whites and 
fifty minorities. If the attendance zone boundary between these 
two schools were redrawn in such a manner that ten white students 
from School A were rezoned into School B's attendance zone, while 
ten minority students from School,B were rezoned into School A's 
attendance zone, thus resulting in School A having 10% minorities 
and School B having 40% minorities, this boundary change would be 
desegregative under Dr. Armor's analysis: The D index would 
decrease, i.e., show a desegregative effect, since Schools A and B 
would now be more racially balanced relative to each other (10% and 
40% minority) than they were before the change (0% and 50% 
minority); the E index would also decrease since the minorities 
originally in School B would now be in contact with a greater 
number of the available white students attending the schools in 
question.

Using the D and E indices. Dr. Armor concluded that of 
the thirty elementary school boundary changes, four were 
significantly-^^’̂segregative, ten were significantly desegregative.

27):)



and fifteen had no significant effect one way or the other (the 
opening of School 10 in 1972 was found to have had a mixed effect 
according to the D index: the expected change was segregative, but 
the actual effect was desegregative) . On the secondary school 
level. Dr. Armor concluded that of the nineteen middle school 
boundary changes, three were significantly segregative, four were 
significantly desegregative, and eleven had no significant effect 
in either direction (the opening of Commerce Middle School in 1973 
was found to have had a mixed effect similar to the School 10 
opening). As for the five high school boundary changes. Dr. 
Armor's analysis found that one was significantly segregative and 
four had no significant effect.

The difficulty which we have with Dr. Armor's analysis is 
not that it tells us too much, but that it fails to take into 
account a number of considerations which we consider relevant, 
indeed critical, to our analysis of both segregative effect and 
intent. The analysis, by limiting its scope to the specific 
schools directly involved in a particular boundary change, fails to 
consider the impact of particular changes on neighboring schools or 
on the districtwide racial balance. Whether or not the Board had 
any obligation to make boundary changes in a manner which increased 
districtwide racial balance, it is inaccurate and misleading to 
view boundary changes in isolation without consideration of the 
historical events preceding and reasons prompting a particular 
change; see SCHOOLS IV.A.3.a infra (School 1); the feasibility 
and relative desegregative effect of alternatives to the boundary 
changes actually made;^'^ see SCHOOLS IV.F.2 infra (Commerce);



SCHOOLS IV.A.3.C infra (Longfellow); the community's and school 
officials' perception of a particular change which, though 
mathematically desegregative with respect to the particular schools 
involved, further delineates a particular school, neighborhood or 
area of the city as identifiably white or minority; see SCHOOLS 
IV.A.2.b infra (School 10); SCHOOLS VI.F.2 infra (Commerce); and 
the effect of these perceptions on subsequent demographic patterns 
affecting both housing choices and school attendance decisions. 
The ability of a school board to both foresee and affirmatively 
alter the development of school racial enrollment patterns beyond 
the limited scope of any particular change renders a purely 
intraschool analysis of racial imbalance a somewhat unrealistic 
appraisal of the actual* effects of boundary changes on the racial 
balance and identiflability of schools both directly and indirectly 
affected by a boundary change; A more searching inquiry into the 
Board's attendance zone changes is thus necessary in order to 
evaluate plaintiffs' claim that such changes were intentionally 
segregative.

We now turn to an analysis of specific school openings, 
closings and boundary changes in order to determine whether these 
actions may be characterized in whole or in part as intentionally 
segregative acts which furthered the segregation and racial 
identiflability of the Yonkers public schools.

2. School Openings
As we have already noted, the district has opened six 

schools over the fifteen years preceding the filing of this action.



Three of these school openings and related attendance zone changes, 
involving two elementary schools (School 10 and King) and one 
middle school (Commerce) merit further discussion, for plaintiffs 
claim that these openings and related attendance zone changes 
represent intentionally segregative decisions by the Board and, 
with respect to School 10, the City, which further identified 
Southwest Yonkers schools as predominantly minority facilities.

a. Martin Luther King, Jr. Elementary School
King Elementary School is a virtually all-black school 

located several blocks north of Getty Square in Southwest Yonkers. 
Although King has operated as a virtually all-black school 
throughout the mid to late 1970's, the opening of King was designed 
as one of the first intentionally integrative efforts of the 
Yonkers School District. Several factors are relevant in examining 
the reasons for the Board's unsuccessful efforts to effectuate 
school desegregation at King and its surrounding schools; the 
circumstances underlying the planning and construction of an 
additional school in the Southwest Yonkers area, the site selected 
for the school, the circumstances surrounding the naming of the 
school, the drawing and re-drawing of King's attendance zone 
boundaries, alterations in the school's grade organization, and the 
interrelationship of these events with the conditions in
surrounding elementary schools.

The construction of King was originally based on the need 
to accommodate the increasing student enrollment at Schools 6 (78% 
minority in 1967-68) and School 12 (64% minority in 1967-68), two



of the district's most racially imbalanced and overcrowded 
elementary schools. In order to properly understand the reasons 
for the segregated nature of Schools 6 and 12 and the need for an 
additional school in that area of the city, some background is in 
order.

The racial identifiability of School 6 has existed for 
virtually as long as the district's elementary school boundaries 
have been in existence. School 6 is located in an area of 
historically heavy minority concentration in Southwest Yonkers; its 
attendance zone embraces the Cottage Place Gardens housing project, 
whose estimated minority student population during the 1950's and 
1960's was equal to or greater than School 6's minority enrollment. 
Tr. 11,883-84, 11,890 (Armor). By 1953, School 6 had an estimated 
minority enrollment of 29%, the second highest minority enrollment 
in the district. School 25, located directly north of School 6 
along Warburton Avenue, was a comparatively whiter school, with an 
estimated 4% minority enrollment in 1953.

In 1948 and 1953, two changes were made to the attendance 
zone boundary between these two schools. In each instance, areas 
which had a lesser percentage of minority students than the School 
6 zone as a whole were rezoned from School 6 to School 25. Although 
student enrollment data is not available for the 1948 change. 
School 6 had greater classroom capacity at the time. GX 644. By 
1953, each school had added additional classroom space; prior to 
the 1953 boundary change. School 6, with eighteen classrooms, had 
an estimated 477 students, and School 25, with fifteen classrooms, 
had an estimated 409 students, and was thus at least equal to

331



School 6 in its percentage capacity enrollment.
The first boundary change was prompted by the district's 

previous exclusion of the children of two black families living 
near the School 6/25 border, at the same time that whites living in
the School 6 zone, further south from School 25 than these blackTfamilies, were permitted to atfi&nd School 25. Tr. 459-63, 502-12 
(Smith). In response to complaints from black parents regarding 
the above student ̂ assignments, the district redrew the attendance 
zone boundary line dividing Schools 6 and 25 so as to include both 
white students previously attending School 25 out-of-district as 
well as the two black families noted above.^^

The segregative effect of the 1953 boundary changes to 
School 6's attendance zone was also relatively limited. School 6's 
northern re«a.t£^ in the
reassignment'^/''a'n" estimated twenty-seven white and f ive-̂ rntnority 
students (16% minority) to School 25. At the same time. School 6's 
eastern boundary was extended to include an estimated twenty-two 
white and eight minority' students (27% minority) from School 12. 
These two changes caused" School 12' to deeline, in slightly 
desegregative^fashion, from 17% to 1&% minority, while School 6 s 
minority enrollment rose .slightly-from 29% to 30% minority. Thus, 
while the 1948 boundary change between Schools 6 and 25 may be 
fairly characterized as emanating from an attempt to temporarily 
maintain School 25 as a virtually all-white school, the numerical 
effect of these boundary changes suggests that they did relatively 
little to further establish either School 6 or School 25 as 
racially identifiable elementary schools.



From 1953 to 1969, School 6's attendance zone boundary 
lines remained unchanged, but the school became increasingly
imbalanced in its racial enrollment. From an estimated 30% 
minority in 1953, the school increased to 45% minority by 1961 and
78% by 1967. White student enrollment declined from 332
(estimated) to 126 students during this fourteen-year interval, 
while minority enrollment at the school increased from 143
(estimated) to 225 in 1961, then more than doubled over the next 
six years to 453 in 1967. By the mid to late 1960's, the rapidly 
increasing minority enrollment led to severe overcrowding at the
school.

The attendance zone boundaries between Schools 9 and 12 
also were altered a number of times during the 1960's. The 
attendance zone for School 9, located on Fairview Street in Central 
West Yonkers, is located just north of the zone for School 12, a 
substantially more minority-populated area which encompassed the 
Mulford Gardens and Schlobohm subsidized housing projects. Since 
1938, the boundary line separating these two schools had been 
located along Loehr Place, thus dividing students from Mulford 
Gardens between the two schools. In 1963, the district redrew the 
boundary between Schools 9 (15% minority) and 12 (42% minority) in 
a northern direction. As a result, former School 9 students living 
in Mulford Gardens, an estimated 28% of whom were minorities, were 
reassigned to School 12. Although the percentage of white students 
involved in the change had a slightly desegregative effect on 
racially identifiable School 12 (at the time the second highest 
percentage minority elementary school in the district), the change

3 4 1



also resulted in the reassignment of approximately 40% of School 
9's minority student population to a significantly more racially 
imbalanced school. To the extent that school capacities may have 
been a relevant factor, the available evidence suggests that such a 
boundary change was inadvisable. School 9, with a capacity of 
approximately 560 (Phase II) to 605 (NYU Report) students, had 430 
students prior to the change; the receiving School 12, with 
capacity for approximately 476 (Phase II) to 520 (NYU Report) 
students, had 458 students, or almost full capacity, prior to the 
change.

In 1966, an estimated seventy-eight sixth grade students 
from School 6 (78% minority) were reassigned to School 9 (14% 
minority). This change was prompted by the increasingly severe 
overcrowding at School 6, a condition which necessitated not only 
the aforementioned reassignment but also the construction of 
additional classroom space in School 6. As a result of this 
reassignment of sixth grade students. School 9's minority 
enrollment (in absolute numbers) nearly doubled.

The overcrowding at Schools 6 and 12 led to a revision in 
the district's school construction plans. In 1965, the City 
Council adopted a school capital improvement program which provided 
for the construction of an elementary school on the Brandt Farm 
site in North Central Yonkers. Soon thereafter, however, school 
officials recognized that the rapidly increasing enrollments in 
Southwest Yonkers elementary schools and the overcrowding at 
Schools 6 and 12 necessitated the construction of an additional 
school in the Southwest Yonkers area. In April 1966, the Board

2AA.



changed the location of the school district's new elementary school 
to the Pitkin Park area on Locust Hill Avenue, virtually around the 
corner from School 6 and approximately four blocks from School 12. 
In doing so, the Board also decided to establish the new school as 
the school district's first intermediate (grades 4-6) school, 
relieving Schools 6 and 12 of their fourth, fifth, and sixth grade 
students. GX 434.

The site selected for the district's new school made 
racial integration a somewhat less than likely prospect. The site 
selected for the school was a heavily minority-populated area of 
Southwest Yonkers, approximately four blocks north of Getty Square, 
the downtown area of the city. In 1964 or 1965, Eugene Radko, then 
principal of School 6 and King's first principal, suggested to 
Superintendent Stanley Wynstra that the school be built at a 
location approximately one-quarter to one-third of a mile north of 
the Pitkin Park area. Tr. 4453-55 (Radko). Although the site 
suggested by Radko was located in the attendance zone for School 9, 
an approximately 17% minority (1967-68) school, Radko's suggestion
was not based on racial considerations but on the greater school-

/age population density in that more northern area. Tr. 4455. 
This suggestion was not pursued further by Radko or Superintendent 
Wynstra, and the school was constructed at the Locust Hill Avenue
site, located between Schools 6 and 12.

Although the school was located in a predominantly 
minority area of the city, the record suggests that this was done 
to relieve neighboring school facilities of their steadily 
increasing enrollments, and not as a deliberately segregative

3 + 3



decision to isolate or identify King as a minority school. To the 
contrary, in 1968, the Board decided to add the fourth, fifth and 
sixth grade students from School 9 to the King feeder pattern, thus 
adding an integrative component to the already unique intermediate 
grade structure of the school.

The drawing of the original boundary lines for the King 
school was an issue of considerable dispute at trial. According to 
the proffered testimony of Rabbi Abraham Klausner, a leader of the 
Clergy of Yonkers' Education Committee who lived in the School 16 
area, the Board originally planned to draw the King attendance zone 
so as to include a virtually all-white three-block area of the 
School 16 (0% minority in 1967-68) zone which, several years 
earlier, had been rezoned from the School 25 (41% minority in 1967- 
68) zone. See SCHOOLS IV.A.4.a infra. According to Klausner, the 
plan to include this so-called "dogleg" area of the School 16 zone 
in the King feeder pattern (by including it in School 9's 
attendance zone) was strongly opposed by residents of the School 16 
area, who did not want to be reassigned from highly regarded (and 
identifiably white) School 16 to King, a school which was already 
being perceived by community members as an educationally inferior 
minority school. As a result, the Board allegedly reconsidered its 
more expansive King attendance zone proposal and excluded the 
northern portion of the School 16 dogleg area. Tr. 4526-32 
(Klausner proffer). The attendance zone map below depicts the 
portions of the School 16 attendance zone to which the above 
discussion refers.

.



tr v  ' D  S O S  .
n  t V  t: R

Elementary School District Lines, 1969
(cross-hatched area represents "dogleg" portion 
of School 16 zone)

Elementary School District Lines, 1970
(cross-hatched area represents portion of "dogleg" 
included in King feeder zone)



The record, however, weighs against a finding that such 
segregative conduct occurred. No evidence exists of the Board's 
consideration of such a plan; Board member Robert Jacobson was 
unaware of any such proposal being suggested by the administration 
or considered by the Board. Tr. 10,932-37. It is thus unclear 
whether the proposed northern boundary adverted to by Klausner was 
anything more than community hearsay or a preemptive response to an 
anticipated but yet-to-be introduced attendance zone proposal. In 
any event, objective evidence weighs against the feasibility of 
such a proposal: in 1969 King enrolled 701 students, or 93% 
capacity, and by the following year, was at 102% capacity. In 
addition, in 1970, after community members urged the school 
administration to consider including a portion of the School 16 
dogleg area in the School 9 zone, the district in fact reassigned 
students from this area to School 9, which in turn fed into King and 
thereby raised King's white enrollment from 43% to 51%. The re­
zoned area included the area surrounding North Broadway and High 
Street, the same area which residents of the School 9 community had 
urged school officials to include in the King feeder zone. See Tr. 
4480-81 (Radko). This action was taken and adhered to despite the 
administration's acknowledgement of the "potential explosiveness" 
of the King situation, GX 460, and despite the fact that including 
more white students in the School 9 zone left King at more than full 
capacity. It also was consistent with other evidence of the 
Board's contemporaneous interest in effectuating school desegrega­
tion in other areas of Southwest Yonkers. C-352; SCHOOLS IV.A.2.b 
infra. Thus, while there is evidence suggesting that School 16 
community members had voiced opposition to the possibility, never



implemented, of an even greater inclusion of School 16 students 
into the King feeder pattern, it is simply not reasonable to 
conclude that the original drawing and subsequent expansion of the 
King attendance zone was, in light of the aforementioned 
circumstances, segregative conduct by the Board.

Controversy surrounded the naming of the school as well. 
The school was originally referred to as School 33, in keeping with 
the district's historic practice of naming elementary schools by 
number. In February 1969, the Yonkers NAACP submitted a proposal 
to the Board that the school be named after the recently slain 
Martin Luther King, Jr. GX 441. School officials were originally 
reluctant to adopt this proposal for fear of identifying the school 
as a minority school and because of a disinclination to depart from 
the consistent practice of naming elementary schools by number. 
Tr. 4541 (Radko); Tr. 5048-49 (Jacobson). However, the district's 
alternate proposal to name a section of the school's library after 
Dr. King was strongly denounced by members of the black community, 
with Yonkers NAACP President Reverend Serenus Churn reportedly 
describing the proposal as an example of "latent racism in the 
Board of Education." GX 442, 443, 445. The Board reconsidered and 
voted to name the school after Dr. King, thus creating the first 
non-numbered elementary school in the district. GX 444. The 
Board's reversal on this issue was supported and applauded by 
community members. GX 446, 4+4-.

Regardless of the subsequent racial segregation which 
occurred at King, the record establishes that the Board planned the 
opening of King with the hope that the school would serve as a 
significant step towards correcting racial imbalance in the



Southwest Yonkers public schools. Testimony of school officials 
and various written communications with state education officials 
all reveal the integrative intent of the Board and administration 
in the opening of King. Tr. 4063, 4089 (Sobel) ; Tr. 5052
(Jacobson); Tr. 5203-04 (Morris) (re Superintendent Paul Mitchell); 
GX 452, 915. Whether this intent was predicated on an overly
optimistic assumption about the ability to attract and maintain 
white students at the school, the record does not reveal an 
optimism so unrealistic so as to be regarded as insincere or 
pretextual. At the time of King's opening, nearly all the students 
who were reassigned to the school were introduced to a school 
environment significantly more racially integrated than those of
the schools they previously attended.

After the opening of King in 1969, however, the efforts
to establish King as a racially balanced intermediate school began 
to disintegrate. The actual opening of the school itself detracted 
from the integrated image which the Board had sought to create. 
The school opened in April 1969 with students coming from 
predominantly minority Schools 6 and 12; School 9 students did not 
attend King until the following school year. -Tr. 4466 (Radko).
The addition of three black teachers to King's faculty raised the 

minority faculty percentage to more than two-and-a-half times the 
districtwide average. In May 1970 (one month prior to the end of 
the school year), Eugene Radko was reassigned to predominantly 
white School 9 (and eventually to School 11) and was replaced as 
principal by Nellie Rice, who is black. This reassignment, while 
motivated in part by Radko's outspoken behavior concerning the



setting of the northern boundary of the King feeder zone, Tr. 4492- 
93, 4498-99 (Radko), was also prompted by philosophical 
disagreements between Radko and the central administrative staff 
over decentralization in school management, and by Rice's excellent 
reputation as principal for School 9. Tr. 4540 (Radko); Schainker 
Dep. 111.

The following year, the Board extended the School 9 zone 
westward in the manner described previously, decreasing King's 
minority enrollment from 57% to 49%. The protests of School 9 
parents did not subside. In December 1970, a petition signed by 
434 parents was submitted to school officials in which parents 
expressed concern over King's academic and discipline problems and 
urged the Board to restore the School 9 and 16 attendance zones to 
their pre-existing status. GX 453. The Board, however, did not 
alter the School 9 attendance zone boundary during that or the 
following (1971-72) year. Shortly thereafter, white students from 
the School 9 area began to withdraw from the King feeder pattern, 
apparently either relocating or enrolling in private schools in the 
area; the number of white students at King dropped from 392 in 
1970-71, to 224 in 1971-72, a 43% decline. (The grade 4-6 white 
student enrollment at the four non-public schools in the King 
feeder zones (Sacred Heart, St. Michael's, Halsted, and St. 
Joseph's) declined only 7% (583 to 542 students) during this same 
interval. SB 98). As the total enrollment at King declined from 
767 students in 1970 to 746 students in 1971 and 652 students in 
1972, the minority enrollment rose from 49% to 70% to 78%.

The first of two segregative attendance zone changes



occurred in 1972, when School 9 was eliminated as a King feeder 
school. As a result. School 9 third graders continued to attend 
School 9 the following year. Of the approximately fifty-three or 
fifty-four students involved, thirty-two were white and the 
remainder minority. One year later, the racial identiflability of 
King increased when the district rescinded its plan to operate King 
as a grade 4-6 intermediate school and converted it to a K-5 
elementary school. As a result of these two changes. King's 
minority enrollment increased from 70% to 87%.

The decision to remove School 9's fourth graders from the 
King feeder zone is traceable to the timetable set forth in the 
district's 1973 Reorganization Plan, in which Superintendent Alioto 
recommended that the district's schools be organized on a K-5, 6-8, 
9-12 basis. Since under the plan School 9 was scheduled to 
reacquire fourth and fifth grade students in 1973—74 pursuant to 
its conversion to a K-5 elementary school, there was apparently 
little reason to assign School 9 fourth graders to King in 1972 
only to have them reassigned back to School 9 the following year. 
Although the School 9 change was made months before the 
introduction of the 1973 Reorganization Plan, Alioto had previously 
expressed his interest, as early as 1971, in converting the 
district's grade structure to a K-5, 6-8, 9-12 pattern as soon as 
possible. Tr. 10,937-38 (Jacobson); Tr. 13,054-55 (Pitruzzello). 
Yet, other than the conversion of School 11 and Twain Middle School 
into K-5 and 6-8 schools, respectively. King was the only school to 
be reorganized in this manner prior to implementation of the 1973 
reorganization plan. Unlike School 9, Schools 6 and 12, both

250



predominantly minority schools, continued to feed students into 
King in 1972-73.

Several factors, however, render a finding of segregative 
intent in these circumstances unwarranted. Numerical evidence 
suggests that such intent was not present: the fourth grade School 
9 students were 41% minority, as compared with 70% King; the 
withdrawal of the School 9 fourth graders increased the percentage 
minority enrollment at King by approximately 3%, an increase which, 
as noted above, would have occurred in any event one year later. In 
addition, this reassignment, even though segregative, does not 
explain the district's simultaneous decision to retain fifth and 
sixth grades from the School 9 zone at King during the 1972-73 
year, even though School 9 had well over 100 students under its 
recommended operating capacity and thus could have accommodated 
such a reassignment. In addition, documentary evidence concerning 
conditions at King in March 1972 suggests that the retention of 
incoming School 9 fourth grade students the following term was 
based on anticipated limits on King's enrollment capacity, 
projected increases in fourth grade enrollments, and class size. 
GX 455. Such a finding would also be inconsistent with both the 
district's refusal to comply with the community's earlier demands 
to restore the School 9 and 16 boundaries to their pre-King status, 
as well as the district's express rejection in 1974 of a 
Councilman's request that school officials rezone the dogleg area 
of School 9 into the virtually all-white School 16 zone in which 
this area had previously been included, a proposal which was 
rejected specifically because it would have decreased the white

2 5 \



student population at 28% minority School 9. SB 214; Tr. 13,436 
(Frank).

The 1973 Reorganization Plan's conversion of King from an 
intermediate to an elementary school completed the transformation 
of King from an integrated intermediate school to another of the 
many identifiably minority elementary schools in Southwest Yonkers. 
The conversion of King from a 4-6 to a K-5 school in 1973 was 
segregative both as to King and as to several surrounding schools 
as well. King's new attendance zone was created from sections of 
the School 6 (97% minority) and School 12 (86% minority) zones; the 
newly organized King elementary school opened as an 87% minority 
school. Although the change had a desegregative effect on School 9 
(18% to 31% minority), it simultaneously increased the already- 
heavily minority enrollment percentages at three neighboring 
schools (6, 12, 25). This change was accompanied by a similar rise 
in minority faculty at the school, which by 1973 had a 42% minority 
staff. Both student and staff minority percentages increased 
throughout the 1970's, reaching levels of 98% and 37% (after a high 
of 53% in 1975-76), respectively, in 1980. This increase in King s 
minority enrollment was due primarily to the 1976 school closings, 
see SCHOOLS IV.A.3.b infra, and the conversion of the district s 
elementary schools from K-5 to K-6 facilities in 1980.

Despite the foreseeably segregative consequences of 
King's conversion, however, the evidence regarding the district's 
conversion of King to an additional K-5 elementary school does not 
support an inference of segregative intent. The elementary school 
grade reorganization recommended in Superintendent Alioto's 1973

^ 5 5



Reorganization Plan was not a significant source of controversy, 
much less racial opposition, at the time and was in and of itself a 
rational educational objective which was supported by school 
officials and community members as well. Although the conversion 
of King to a K-5 elementary school was contrary to the Board's 
earlier desire to utilize King as a desegregative catalyst in an 
increasingly minority area of Southwest Yonkers, the history of 
King clearly demonstrates the interrelationship between the 4-6 
grade configuration and the district's attempt to promote racial 
integration in the area to the extent possible. By 1973, King, a 
78% minority school with a steadily declining white enrollment, was 
realistically well past the point at which meaningful integration 
could be successfully achieved, absent measures far beyond any of 
the changes previously considered by the district. Although the 
Board failed to persist in its prior efforts to create an 
integrated school in the area, the major factors underlying the 
increased minority identifiability of King the site selection, 
the naming of the school, and the white flight caused primarily by 
the district's intransigence with respect to the demands of the 
School 9 community for a segregative reassignment of its students 
—  cannot reasonably be construed as evidence of segregative intent 
by the Board. In light of the previous integrative efforts at King 
and the other aforementioned circumstances inconsistent with 
inferences of segregative intent, we are unable to conclude that 
the 1973 conversion of King into a K-5 elementary school was part 
of a consistent pattern of segregative acts by the Board from which 
a finding of segregative intent may properly be made.

253



b. School 10
School 10, an elementary school, is located between the 

Riverview I and II subsidized housing projects on Riverdale and 
Hawthorne Avenues in Southwest Yonkers, between Getty Square and 
the Hudson River. The idea for the construction of School 10 
originated from the Board's desire to replace the physically 
inadequate School 19, located three to four blocks south of School 
10. P-I 51-34, at 11. This plan was part of a more comprehensive 
proposal to construct a new intermediate (grades 4-6) school in the 
southern part of the School 3 zone, drawing students from School 3 
(34% minority in 1967), 19 (68% minority) and 27 (5% minority) and 
thus improving the racial balance of schools in the Southwest 
Yonkers area. During the late 1960's, the Board received $125,000 
in capital improvement funds for the planning of this intermediate
school. P-I 51-48, 51-49, 51-55, 51-58.

The Board originally considered locating the new School 
10 in the city's second urban renewal area, several blocks south of 
its present location, in order to relieve Schools 3 and 19 of their 
overcrowded conditions. Tr. 9335-36, 9406 (Curran). In the spring 
of 1967, Walter Webdale, Director of the Yonkers Urban Renewal 
Agency ("YURA"), met with Superintendent Wynstra and Deputy 
Superintendent Irving Goldberg and asked them to consider locating 
the school in the Riverview urban renewal area to the north, where 
the City was planning to construct several hundred units of 
subsidized housing. GX 284, 285; Webdale Dep. 201. The inclusion 
of the school in the City's urban renewal project was to serve as 
the City's statutory non-cash contribution for the Riverview urban

.



renewal project, thus enabling the City to receive credit from the 
federal government towards its share of urban renewal expenditures 
and allowing the Board to construct a new school without a 
reduction in its capital improvement budget. In July 1967, the 
Board, in accordance with Webdale's proposal, passed a resolution 
requesting the City to provide a five acre site in the Riverview 
urban renewal area for the construction of a replacement school tor 
School 19. GX 302. The five acre site size was in conformity with 
New York State Education Department standards and was communicated 
by Superintendent Wynstra to webdale. GX 235! Tr. 4977
(Jacobson). The City Council also approved the proposal. C-711.

The construction of School 10 was designed as part of a 
self-contained neighborhood concept for the Riverview urban renewal 
area. With the City having made the decision (over the objections 
of Planning Director Philip Pistone) to make residential re-use of 
the City's second urban renewal area, the City began planning the 
construction of its new housing development. According to a March 
1968 letter written by Webdale to HUD Assistant Regional 
Administrator for Urban Renewal Charles Horan, the school was to 
serve 400 families from the Riverview housing project, 540 families 
from Phllllpse Towers (the predominantly white Mltchell-Lama middle 
income housing project located directly across from Riverview), and 
100 families from a small area to the west of Riverview. 
one year earlier, Phllllpse Towers residents had expressed to state 
officials their dissatisfaction with the deterioration in the 
neighborhood and with School 19, a school they described as -over­
crowded, overburdened and dilapidated," and noted their Impatience



with the progress of the City's urban renewal program. GX 315. 
City and HUD officials hoped, however, that the construction of new 
housing and school facilities would result in the stabilization and 
rejuvenation of the then-deteriorated neighborhood. Tr. 1353-55 
(Del Bello); Tr. 2267-68 (Yulish) . The City hired architects to 
assist them in the design of the Riverview project, a design which 
had been developed elsewhere in the northeast area of the country. 
Tr. 1354-55 (Del Bello).

By 1968, YURA, led by Walter Webdale, became increasingly 
involved in the planning and construction of School 10. In his 
letter to HUD official Horan, Webdale urged HUD to approve the 
City's urban renewal funding application for Riverview, stating his 
belief that a majority of the Riverview residents would be "middle 
income young families." GX 270. During the remainder of that 
year, the original conception of the school underwent significant 
change. Communications from Webdale to various City and HUD 
officials, written between March and December of 1968, reflect that 
School 10 was now being planned as an additional K-3 primary school 
which would relieve School 19 of its overcrowding, and that School 
19 would continue to enroll students from the area. GX 270, 288, 
313, 314. The school's site was now specified as one acre for the 
school itself, with additional space for parking and outdoor 
recreational facilities. GX 286, 313. By the fall of 1968, 
Webdale began to press school officials to begin construction of 
the school by the following year in order to demonstrate to HUD 
officials the City's commitment to the urban renewal project. GX 
286, 287, 314; Webdale Dep. 206-08.

350.



In February 1969, the Board submitted preliminary site 
plans to Webdale. According to subsequent correspondence between 
City and school officials, these plans reflected the Board's 
understanding that the school would be located between Riverdale 
and Hawthorne Avenues, with a play area and fountains located 
between the school and Riverdale Avenue. GX 297, 300, 301. By 
January 1970, the Board's architect had finished the site plans for 
the school. These plans continued to provide for a school site, 
located between the two avenues, with a play area, trees, shrubs 
and fountains in front of the school but no other buildings 
separating the school's play area from Riverdale Avenue. GX 294- 
296; Tr. 4972, 4989 (Jacobson). At the same time, Webdale assured 
community members that the Riverview project would include adequate 
play space for the school. GX 291.

The plans of the Board's architect were consistent with 
the school district's planned development of the School 10 facility 
itself. The school was designed as the district's first "open 
school," a school without walls in which students would be taught 
in an unstructured and flexible interior environment by teachersr
with special training in the innovative open education instruction 
technique. The schools's open interior was premised on the general 
openness of the school's surrounding environment. While the open 
school concept was an untested concept in the district, school 
officials were enthusiastic about the school and were optimistic 
that the attractiveness of the open school concept, along with the 
juxtaposition of the school to Phillipse Towers and the proposed 
income quotas for Riverview tenants which were communicated to the

251



Board,— ^ would result in a racially balanced student enrollment at 
the school. See generally Alioto Dep. 10; Tr. 4776-77 (Jamieson); 
Tr. 5108 (Jacobson); Tr. 5205-06 (Morris) (re Superintendent 
Mitchell); Tr. 9836-38 (Minervini) ; Tr. 11,406-08 (Guerney); Tr. 
11,673-74 (Leahy).

By late 1969, Webdale continued to press forward with the 
City's efforts to commence construction of School 10. With the 
application for federal funds for the City's Riverview urban 
renewal project still pending, Webdale asked Superintendent 
Mitchell to send HUD officials a letter, identical to the one which 
Webdale had written a year-and-a-half earlier, requesting that HUD 
approve its federal urban renewal funds grant application. GX 317, 
381. In early 1970, Webdale communicated to City Manager Thomas 
Groux and City Councilmember Jesse Eisen that it was "extremely 
important" for the City Council to approve funding for the school's 
construction "at the earliest possible date" and urged the City 
Council to take steps to secure the abandonment of surrounding 
streets in the area so that construction could commence by the 
spring. GX 292, 293.

The remainder of 1970 was occupied by further planning of 
Riverview and the commencement of construction of School 10. 
During this period, the City's plans for the Riverview housing 
project were undergoing significant change. As of February, 
neither the type of redevelopment or redeveloper for Riverview, nor 
the income breakdown for the housing units, had been decided, with 
the UDC mentioned as a possible developer. According to YURA 
minutes dated February 13, 1970, the stated goals of the urban



renewal program continued to be to provide relocation housing for 
urban renewal displacees and to "encourage an influx of new people 
into the area who have for years been leaving." GX 334, at 2. 
These minutes also reflect that the housing contemplated for the 
school would include 300 to 400 units and that construction of the
school would commence in April. Id.

In March, the Board's site plans for School 10 were
submitted to the City and YUBA. GX 300, 301. By that time, the ODC 
had been named as developer of Rlvervlew. P-I 150-112, 150-112A.

By April, City officials had tentatively agreed with the 
ODC to construct four housing projects in Southwest Yonkers for 
1,400 units of housing, including 850 units at Rlvervlew, in 
addition to the contemporaneous development of several privately 
sponsored housing projects in that area. GX 1088.8. In July, a 
memorandum of understanding between the City and the UDC providing 
for 1,200 units of housing, including 800 units at Rlvervlew, was 
approved by YURA and the City Council. As discussed previously, 
there was little public discussion or planning board consideration 
of these plans or the changes which had occurred. See HOUSING 
IV.C.2, IV.D.5 supra, school officials continued to plan to use 
school 10 as a means of relieving School 19 of its primary grade 
students, leading eventually to the closing of School 19 and the 
oonstructlon of a new intermediate school for Schools 3, 19 and 27. 
P-I 51-64 (June 1970 letter from Assistant Superintendent Gallagher
to City Budget Director Casey).

At a January 1971 UDC Citizens Advisory Committee
meeting, RlvervleWs architect discussed problems which had arisen

2 5 i



concerning the design of the Riverview complex, particularly with 
respect to the location of School 10 in the center of the site and 
the resulting incompatability of the 400 Riverview Stage I housing 
units and the school's "necessary open space." GX 305. Proposed 
solutions included the construction of scaled or sloping apartment 
buildings, the conversion of the school's parking lot into a play 
area, and the construction of commercial units and a day care 
center, instead of apartments, on Riverdale Avenue. In a 
March 1971 meeting, Webdale and City Manager Seymour Scher notified 
Board member Charles Curran and Acting Superintendent Gallagher of 
the change in plans for Riverview, including the reduced school 
site size and the erection of a seven-story apartment building and 
retail complex in front of the school on Riverdale Avenue. GX 297, 
301.

Board members and school officials strongly and 
unanimously denounced the proposed change in plans; as Board member 
Jacobson described it, "the Board of Education, everyone, literally 
exploded." Tr. 4990; see also Tr. 9838 (Minervini). A number of 
alternative courses of action were considered by the school 
district. The Board considered taking legal action against the 
City and the UDC and was advised by outside counsel that the Board 
would be justified in not accepting the proposed site based on 
YURA'S alleged breach of contract. GX 300, SB 631. Board member 
Siragusa opposed opening the school in light of the revised plans, 
while Board member Curran requested that the City acquire the site 
originally sought by the Board in 1967. Tr. 5419-23, 9406-07. In 
October 1971,^^ Superintendent Alioto asked City Manager Scher to

2 U O



"forestall the arbitrary action" of YURA, the effect of which was 
described by Alioto as "cannabaliz[ing] the school site" and 
creating an "airshaft" school surrounded by apartment houses and 
devoid of adequate play space. GX 301; see also GX 303. Scher 
informed Alioto that the elimination of the planned play area in 
front of the school was a necessary cost saving measure, and that 
YURA had developed an alternate plan for the school site which 
included two play areas —  one in front of the school, and the other 
in the rear of the school in a space which had originally been 
slated for parking. Scher suggested that the apartment building 
along Riverdale Avenue would act as a protective "barrier" between 
the School 10 students and the street. GX 297.

Superintendent Alioto remained unpersuaded and pursued 
the Board's protest with City and URA officials. In December, 
Alioto was informed by Scher that elimination of the proposed 
forty-one unit low and moderate income apartment building which was 
to be located in front of the school would be economically 
infeasible and would "financially prohibit" the entire Riverview 
Stage I urban renewal project, and would deprive the City of 
"critically needed" relocation housing. GX 299. Scher assured 
Alioto that plan revisions could be made to provide for 100 feet of 
partly covered open space in front of the school and that the 
proposed placement of the school and housing project "would provide 
an attractive open area, ... suitably landscaped" and sufficient 
for recreational purposes. Id.

At a December 1971 meeting of school. City, and UDC 
officials, Webdale (by that time employed by the UDC) suggested

2G1



that the commercial units previously planned for the ground floor 
along Riverdale Avenue would be removed to allow for fifty-five 
feet of open space along Riverdale Avenue in front of the school, 
and that additional space along Riverdale Avenue would be provided 
for in the development of the Riverview Stage II housing project. 
GX 298. By this time, with construction of School 10 nearing
completion, the Board was essentially faced with the choice of 
rejecting the school site as revised, thereby jeopardizing the 
City's urban renewal funding and leaving students in the
overcrowded and physically inferior School 19 facility, or
accepting the partly constructed School 10 facility despite its 
substantial site limitations and relieving School 19 of its 
overcrowding. On December 16, Alioto notified Scher that the 
Board, while remaining "concerned with the intrusion of this
structure in front of the school building, yet being aware of their 
overall civic responsibility and the impact of further delays to 
the Urban Renewal Development," agreed to the proposed modification 
of the school site design. GX 306. As a result, construction 
continued along Riverdale Avenue, with the additional apartment 
building almost totally obscuring School 10 from view and 
eliminating the originally planned outdoor play area in front of 
the school. By April 1972, the Board had approved a proposal by the 
City's architect to eliminate the fifty-five foot open space in 
front of School 10 and instead construct a plexiglass enclosure 
along Riverdale Avenue for use as a recreation area for the school. 
GX 309, Tr. 4991 (Jacobson) Tr. 5420-23 (Siragusa). As a result, 
the school was barely visible from the street, with the sign



identifying School 10 placed on the back of the school building, 
facing Hawthorne Avenue.

The effect of these modifications to School 10's site was 
clearly detrimental. Superintendent Alioto recalled that the 
erection of the additional housing units in front of the school 
undermined the school's potential for drawing students to the 
school. Alioto Dep. 10. Board members Jacobson and Siragusa also 
described the school site in distinctly negative terms, a 
perception shared by others in the community. Tr. 4992, 5420-22. 
A newspaper editorial decried the City's use of the land along 
Riverdale Avenue for additional apartments and described the result 
as creating a "new ghetto school." GX 303.

The school building itself, however, was still considered 
an educationally positive contribution to the school district, 
affording school officials the opportunity to test the open school 
education concept in Yonkers. Tr. 5002 (Jacobson); Tr. 9838 
(Minervini) . As the opening of School 10 approached, school 
officials eagerly prepared for the opening of the district's first 
open school: faculty members were given special instruction in the 
open school teaching method, and School 6 teachers implemented an 
instructional program for first graders modeled after the open 
school method. Tr. 4823 (Jamieson); Tr. 11,636-37 (Leahy); GX 
476. A number of university and foreign educators visited the 
school, and the 1972 NYU Report observed that the facility 
presented the district with "an opportunity to conceive imaginative 
uses not normally afforded in existing facilities." GX 115, at 
264; SB 183; Tr. 11,644-45 (Leahy).



The problems with the school's site size persisted 
subsequent to its opening in 1972. With the construction of 
Riverview I and II still ongoing around the school site. School 10 
opened as a K-4 school with a 76% minority enrollment, drawing 
students from the bulk of School 19's former attendance zone. By 
that time, school officials also notified the URA and UDC that the 
school would be converted into a K-5 elementary school, a change 
which was in accordance with Superintendent Alioto's 1973 
Reorganization Plan but which intensified the inadequacy of the 
school's already limited recreational facilities. GX 309; Tr. 
11,643, 11,651 (Leahy). School officials had continued difficulty 
in securing adequate play space for School 10 students, with a 
conflict arising over the use of paved space in the rear of the 
school for parking rather than recreation. GX 307, 312, 322; Tr. 
11,642 (Leahy). The district's ability to provide adequate play 
space also was limited by the steeply sloped nature of the space in 
the rear of the school, an area which Riverview's Program Manager 
suggested could be '"imaginitively designed to provide an 
interesting play experience." GX 322. The glass-enclosed area 
along Riverdale Avenue was' seldom"'used for recreational purposes in 
part because of the ongoing construction in front of the school, a 
condition which caused considerable inconvenience for School 10 
students. Tr. 4784-85 (Jamieson); Tr. 4992, 4999-5000 (Jacobson); 
Tr. 11,643-44 (Leahy). The difficulties in securing recreational 
space persisted throughout the 1970's, with the two concrete spaces 
in front and back of the school continuing to serve as the school's 
only availble outdoor play areas. The inadequacy of School 10's



outdoor facilities was compounded by the structural limitations of 
the school itself, specifically, the building's low ceilings and 
lack of a gymnasium.

By 1973, a number of community groups and City officials 
expressed increasing concern over the construction of the 
additional 339 units of housing contemplated by the Riverview II 
urban renewal project. In a letter to the Governor of New York, the 
Yonkers Economic Development Corporation sought to delay 
construction of Riverview II, with the ultimate goal of adopting an 
alternative use for the site and relocating the project to a "lower 
density area in another part of Yonkers." GX 330. The 
organization specifically expressed its concern over the impact of 
the additional housing units on population density in the area, in 
light of both the physical inadequacies of the school site, 
Riverview's proximity to numerous other subsidized housing projects 
in the area, and the " [d] iff iculty in renting to maintain fair 
racial balance." W.  City CounciImembers Goodfriend and Goldman 
sponsored a resolution requesting a nine month delay in the 
construction of Riverview II in order to re-evaluate the use of the 
site and the impact of the additional housing units on School 10's 
facilities. GX 275. Mayor Del Bello expressed to Webdale, and 
mayoral candidate Angelo Martinelli was reported to have expressed, 
similar concern over the Riverview II project's expected impact on 
population density in the area and the project's physical 
obstruction of School 10. GX 328, 329.

Construction of Riverview II nevertheless proceeded as 
previously scheduled. By that time. City officials had expressed



their disappointment with the Riverview project and implicitly 
acknowledged the predominance of housing-related objectives and 
desires with respect to the project. In a May 1974 letter to UDC 
Director Webdale requesting alterations in the design of the 
Riverview parking gargage, CDA Acting Director Alphons Yost stated 
that

Yonkers has been most cooperative with you and 
your organization in the Riverview Development 
and, in hindsight, some of our compromises may 
not have been in the beat interest of the City.
These compromises include the partial blocking 
of P.S. 10 along Riverdale Avenue, to allow for 
more units and the deletion of open space for garage use at the corner of Prospect Street and 
Hawthorne Avenue. Since, these compromises 
were in your best interest and not the City's, we trust you will give this request your full 
consideration.

GX 324.
In 1975, the construction of Riverview I and II was 

completed. The Riverview II building was located closer to 
Riverview I than had originally been planned in 1971. School 10 
was (and is) almost completely obscured from view, with 
approximately thirty feetr of space along Riverdale Avenue 
separating the Riverview I and II apartment buildings. GX 1005. 
In 1975, School 10 was 83% minority, the fourth highest minority 
enrollment in the district, and employed an increasingly 
disproportionate number of minority staff.

The circumstances surrounding the planning, construction 
and opening of School 10 had an impact on ttve district's other 
Southwest Yonkers elementary schools, particularly School 19. As 
recently as June 1970, school officials continued to plan towards 
the eventual closing of School 19 —  a school with no gym, a small



play area, and in need of extensive rehabilitation —  and the 
construction of an intermediate school in the southern part of the 
urban renewal area to serve Schools 3, 19 and 27. P—I 51—64. By 
early 1972, plans to build a new intermediate school for the School 
3/19/27 area had been abandoned. P-I 51-71. Thereafter, City 
planning officials suggested that School 19 undergo major 
rehabilitation rather than closing. GX 311. As a result, $250,000 
in capital funds were allocated to the rehabilitation of School 19. 
P-I 51-87.

School officials, however, adhered to their original 
desire to close the school. In January 1974, in response to a 
request by Assistant Superintendent Anton Jungherr for input 
regarding the planned rehabiliation of School 19, Assistant 
Director of Elementary Education Joseph Guerney recommended against 
incurring major expenditures to rehabilitate School 19 without at 
least implementing some redistricting of students in the area in 
order to improve school utilization. Guerney noted that School 10 
was 400 to 500 students under full capacity; at that time. School 3 
was still overcrowded and School 19 was underutilized. P-I 19-27; 
GX 64. In February, Assistant Director of Pupil Personnel Donald 
Batista informed Superintendent Alioto of a recommendation, agreed 
upon by school officials, to close School 19 at the end of the year 
and transfer its students to School 10, along with a recommended 
transfer of School 3 students to School 27, a 12% minority school 
with considerable available space. GX 507. By April, these school 
officials reiterated their agreement that School 19 should be 
closed, and school officials began to investigate the cost savings

3(^1



of closing the school. GX 961; P-I 19-30.
The proposed closing of School 19 generated considerable

opposition from the School 19 community. School 19 parents were 
concerned primarily with the perceived inadequacies of School 10, 
including its lack of adequate recreational space, the larger class 
sizes which would result at School 10, and a dissatisfaction with 
the open education program at the school. GX 961; SB 198, 608; Tr. 
4768 (Jamieson). In addition, although School 10 was well under 
full capacity at the time. Board members concluded that the large 
number of housing units nearing completion at Riverview would lead 
to increased enrollments at the school, thus inhibiting their 
ability to close School 19. Tr. 5424, 5466 (Siragusa); Tr. 5512- 
13 (Minervini). As a result of these considerations, the 
deteriorating School 19 facility remained open. The following 
year, the overcrowding at School 3 and underutilization at School 
19 led to the reassignment of approximately ninety-five students 
(seventy-six minorities) from the northern part of School 3 (63%
minority)-s attendance zone to School 19 (82% minority). SB 615; 
Tr. 11,215-16 (Guerney) One year later. School 3 was closed as
part of the district*s fiscally motivated school closings, and 
additional minority students were reassigned to School 19. S ^  
SCHOOLS IV.A.3.b supra. Thus, in two years. School 19*s enrollment 
virtually doubled (275 to 547) as the district effectively 
abandoned its longstanding plans to close the school. By 1976, 
school 10 (85% minority) and School 19 (78% minority) were two of 
the most predominantly minority elementary schools in the district

5 6 ^



The evidence concerning the planning, construction and 
opening of School 10 clearly demonstrates the Board's subsidiary 
role in the decisionmaking process and the predominance of the 
City's residential objectives in the development of the Riverview 
project. Each critical decision with respect to School 10 was 
resolved by adherence to the City's independent concerns rather 
than the school district's educational goals, all of which had a 
distinctly negative impact on the district's efforts to develop an 
attractive and integrated "open school." The strong resistance 
with which the various alterations to School 10 were greeted by 
school officials and the practical infeasibility of alternative 
courses of action undermine any argument that the Board's reluctant 
acquiescence in the City's conduct concerning the development of 
School 10 reflects any meaningful degree of Board control over the 
development of the school.

Likewise, the evidence regarding the nature and extent of 
the Board's involvement in the decisions which contributed to 
School 10's racially segregated condition demonstrates that its 
actions were not designed to achieve this result. Ct. Reed v. 
Rhodes, supra, 607 F.2d at 728-30; Berry v. Benton Harbor, supra, 
442 F.Supp. at 1298-99. The undermining of the open school concept 
at School 10 and the resulting racial consequences for elementary 
schools in the area instead resulted in significant part from 
decisions in which both the Board's role and educational objectives 
were secondary to those of the City. In light of the Board s 
original plans for the school and the circumstances surrounding its

3 6 ^  .



reluctant acquiescence in subsequent modifications to the school 
site, the foreseeably segregative impact of the Board's conduct on 
School 10's racial enrollment does not support an inference of 
segregative intent by the Board. We find that the plaintiffs have 
failed to demonstrate that the Board's site selection, planning, 
and opening of School 10 was motivated by segregative intent.

2no



c. Commerce Middle School
The opening of Commerce Middle School was part of the 

Board's consideration of a series of school reorganization 
proposals prepared by the New York University School of Education. 
Eor a discussion of the Board's conduct with respect to Commerce 
Middle School, ^  SCHOOLS IV.F.2 infra.

3. School Closings
Until recently, school closings had been relatively rare 

in Yonkers. Between 1950 and 1973, School 1, in Runyon Heights, 
was the only school closed by the Board. In 1973, the High School 
of Commerce, one of the district's specialized occupational high 
schools, was closed pursuant to Superintendent Alioto's 1973 
Reorganization Plan. The remainder of the school closings occurred 
as a result of the district's 1976 School Closing and 1977 Phase II 
reorganization plans. The 1976 school closings, prompted by the 
city's fiscal crisis, involved six elementary schools (3,4,7,12,- 
15,24) as well as the Commerce Middle School. The closing of 
Burroughs Middle School in 1978 was accompanied by the relocation 
of the Saunders Trades and Technical High School to the Burroughs 
facility, a course of action which was recommended as part of the 
Phase II plan, and the reassignment of Burroughs students to other
middle schools in the district.

The closing of Burroughs and the High School of Commerce
ace significant primarily because of the other interrelated school 
organization changes which occurred contemporaneously. These

a n \



changes are therefore discussed elsewhere in these findings. See 
SCHOOLS IV.F.2 infra (Commerce closing); SCHOOLS IV.F.3 infra 
(Burroughs closing). The remainder of the district's school 
closings —  the closing of School 1 in 1954 and the 1976 school 
closings and related attendance zone changes — are discussed below. 
In addition, the Board's failure to close or implement attendance 
zone changes with respect to Longfellow Middle School is also 
discussed as part of our examination of school closings.

a. School 1
School 1, formerly the district's oldest elementary 

school, was located in the Runyon Heights area of Northwest 
Yonkers. Runyon Heights constitutes the only area of heavy minori­
ty population outside of the Southwest Yonkers area. The Runyon 
Heights area is bounded on the west by the Saw Mill River Parkway, 
on the south by Tuckahoe Road, on the east by the New York Thruway, 
and on the north by Curtis Road. Runyon Heights is also bounded on 
the north by a thin strip of land, owned by the Homefield 
Neighborhood Association, which effectively seals off the Runyon 
Heights minority community from the surrounding white neighborhood 
to the north. Tr. 2740-42 (Downes). To this day, Runyon Heights 
streets terminate in a dead-end just below this strip. In 
addition, the original deeds for many properties in the Homefield 
area contained racially restrictive covenants prohibiting the sale 
of such properties to non-whites. Tr. 2375 (Guzzo); Tr. 2733-35
(Downes).

Although attendance zone maps are not available for years

a i 3 .



prior to 1938, the testimony of several persons who attended School 
1 during the 1930's established that students from outside the 
Runyon Heights area attended the school at one time. Specifically, 
students from the virtually all-white Homefield community, located 
north of Runyon Heights, as well as from largely white areas which 
were east, south and west of Runyon Heights, attended School 1. 
These white students rendered School 1 a racially integrated 
facility, with white students comprising roughly one-half to two- 
thirds of the student body, even though Runyon Heights Itself was a 
predominantly minority community. See general^: Tr. 2582-85 
(Mareno), 2636 (Williams), 2672-74 (McRae), 2718-22 (Downes).

The 1938 attendance map reveals that the school district 
drew the School 1 attendance zone boundaries so as to track 
precisely the aforementioned strip of land to the north and the Saw 
Mill River Parkway to the west, thereby reassigning students from 
the Homefield community to virtually all-white School 22, a North­
west Yonkers school somewhat farther away from Homefield than 
school 1 and located on the other side of the Saw Mill River 
Parkway. In addition, the southern boundary of the School 1 zone 
was drawn along Tuckahoe Road, thereby reassigning white students 
previously attending School 1 to virtually all-white School 5. The 
resulting School 1 attendance area was the smallest in Yonkers, 
even though the School 1 facility subsequently suffered from severe 
underutilization problems which contributed to its eventual 
closing. Other neutral justifications, if any, for this particular 
drawing of the School 1 attendance zone boundaries are absent from



the record. Based on the available evidence, the original drawing 
of School I's attendance zone boundaries constituted deliberate, 
racially motivated gerrymandering, done in a manner which carefully 
incorporated privately created residential segregation.

The consequences of this attenance zone change were 
striking. School 1 quickly became a heavily minority school, 
reaching an estimated 91% minority in 1950, and an estimated 99% 
minority at the time of its closing in 1954. The facility was 
substantially underutilized; in 1950, it enrolled approximately 100 
students while maintaining capacityfor 240 (as of 1954). GX 2, at 
3; SB 810.2. This underutilization resulted in double-grade 
sessions at the school, i ^ ,  the assignment of teachers to 
combined first and second, or third and fourth, grade classes. The 
first three black teachers hired by the Board were assigned to 
School 1, thus further identifying it as a minority school.

Simultaneously, all-white schools in areas surrounding 
the School 1 zone were suffering from increasing ov^crowding. 
School 22 in particular was beset by overutilization problems; by 
1950, plans were made to build additions to the facility to relieve 
this condition. GX 420. In 1950, School 22*s enrollment was 314 
students (all white)Trising to 393 by 1954; its capacity was 390 
(as of 1954). School 5, less than a mile south of Runyon Heights, 
enrolled 630 K-6 students (all white) in 1950 and 844 K-8 students 
by 1954; its capacity was 960 (as of 1954). GX 2. School 8, while 
considerably farther from Runyon Heights than Schools 22 or 5, was 
severely overcrowded. The school enrolled 878 students (two minor­
ities) in 1950; the School 8 building, however, only had capacity

2 ^ ^  •



for 690 students (as of 1954), a condition which necessitated the 
use of a basement annex in a nearby housing development as 
classroom space. GX 4 2 3 . Elementary school maps indicate that 
particular ereas in the attendance zones for each of these three 
schools (22,5,8) were closer to School 1 than to the school in 
whose attendance zone they were then included, a condition of which
the Board was aware. SB 626; GX 423.

By 1953, efforts were made by School 1 community members 
to expand the School 1 zone in order to ameliorate the underutili­
zation problem at the school and simultaneously relieve the over­
crowding of neighboring schools as well —  a suggestion which also 
would have had a clearly desegregative effect on School 1. Several 
members of the Runyon Heights community appeared before the Board 
in representative capacities, repeatedly urging the redistricting 
of School 1 to include those students previously eliminated from 
the School 1 zone. GX 423, 424. These efforts were consistent with 
the prevailing attitude of the Runyon Heights community, which 
favored redistricting rather than the then-apparent plans to close 
the school. Tr. 2610-12 (Mareno). The proposal was also clearly 
feasible from a capacity standpoint: at the time of its closing. 
School 1 had room for approximately 140 additional students, not 
including the potential for an even larger enrollment had the Board 
voted to build extensions to School 1 (as it had done with various
other schools at or about that time).

These efforts proved unavailing. In March 1954, two 
months before the decision of the United States Supreme Court in 
Brown V. Board of Education, the Board voted to close School 1. GX

3 T 5  ■



428a; SB 32. The stated reasons for the Board's decision were non- 
racial, namely, the desire to "provide better education at less 
cost to the city," an apparent reference to the elimination of 
double-grade classes and the closing of the underutilized school. 
GX 425. The Board resolution also alluded to the age of the build­
ing, noting that School 1 was built in 1872, with additions built 
in 1900, 1917 and 1936. SB 32. Based on subsequent events,
however, it is reasonable to conclude that the desire to dismantle 
the district's lone majority black school also animated the Board's 
decision. See Tr. 2611 (Mareno) . School 1 students were reas­
signed to Schools 5 and 24, with a resulting desegregative effect 
on the latter schools. SB 810.6, at 2 (School 5 - 1% to 8% minori­
ty; School 24 -1% to 18% minority) . When the decision was 
protested and legally challenged by black parents from the School 1 
community, the New York State Commissioner of Education rejected 
the legal challenge, relying in part on a letter from the Yonkers 
NAACP stating that the Board's decision was "the most realistic 
solution to this long-standing problem." GX 427. Superintendent 
Wynstra thereafter wrote to the NAACP, thanking them for their 
role in "clarifying our intent and action" in closing School 1. SB 
803; see also SB 754.

The Board argues that the NAACP's position on the School
[DO/1 closing demonstrates the propriety of the decision.'— ' The 

NAACP's support of the Board's decision, however, must be viewed in 
context. Because the Board had consistently refused to consider 
and implement the alternative of redrawing attendance zone lines in 
the Runyon Heights/Homefield area so as to maintain School 1 as an 
integrated facility, the NAACP as well as other groups _and



individuals who might have otherwise opposed the closing of School 
1 were essentially faced with a Hobson's choices support the 
dosing of the Runyon Heights neighborhood school^ even in light of 
the resulting burdens on black students, or oppose the closing and 
thus perpetuate what was at the time the only majority black school 
in Yonkers. Only after the Board rejected the repeated redistrict­
ing suggestions of the Runyon Heights community and decided instead 
to close School 1 did the NAACP support the Board's decision as 
"the most realistic solution to this long-standing problem." 
Viewed in this light, the NAACP's eventual support of the Board's 
decision to close School 1 cannot immunize the decision from 
scrutiny.

At first blush, the Board's decision to close School 1 is 
troubling. While School 1 students were reassigned to schools 
within one mile of Runyon Heights, the redistricting proposed by 
the School 1 community would have involved no greater, and in 
certain instances, a lesser travel burden for Homefield or School 5 
students, who at one time made the very trip to School 1 envisioned 
by the suggested redistricting. The redistricting proposal also 
would have eliminated the problematic double-grade classes at 
School 1 and presumably would have avoided the need for some of the 
additional classroom construction at School 22 one year later. The 
two double classes at School 24 could also have been easily elimin­
ated by transferring students from a neighboring school zone, for 
example, portions of the attendance zone for School 16 (which, at 
135% capacity, was so overcrowded that the district planned to 
erect partitions in study halls in order to accomodate its

Q l l



students) could have been transferred to the neighboring School 24 
zone. The closing of School 1 also deprived the Runyon Heights 
community of its neighborhood school, a loss which was followed by 
a number of subsequent reassignments of Runyon Heights students 
during the 1970's. Moreover, the Board's decision preserved an 
ail-white school experience for Homefield students, consistent with 
the Board's deliberately segregative attendance zone boundary 
changes of prior years.

The Board's decision to close School 1, however, must be 
viewed in context. The decision to close the school, prior to 
Brown, resulted in the elimination of the district's only predomin­
antly minority school and the desegregation of two virtually all- 
white schools. It also eliminated double-grade classes at all 
three schools, a result which would otherwise have involved 
considerable redistricting of other school zones. In addition, the 
reassignment of students to School 1 not only would have 
perpetuated the all-white character of Schools 5 and 24, but also 
would have done nothing to eliminate the all-white character of 
School 22. Since portions of both the School 22 and School 5 zones 
had previously been eliminated from School I's attendance zone, it 
is difficult to find that the district's willingness to close 
School 1 and reassign its minority students to two virtually all- 
white schools, including School 5, was done to perpetuate racial 
imbalance at School 22. Finally, in terms of current segregative 
effect, the School 1 closing has increased racial balance at other 
elementary schools to which Runyon Heights students have been 
assigned -  Schools 5 and 24, when School 1 was



closed; East Yonkers' School 31, after School 24 was closed in 
1976; and East Yonkers' School 8, after School 31 was converted 
into an elementary magnet school in 1982. While the reassignment 
of Runyon Heights students in 1954, 1976 and 1982 has resulted in 
travel burdens more significant than those imposed on practically 
any other community in Yonkers, we do not believe that such 
burdens, particularly when imposed in a desegregative spirit, were 
impermissibly discriminatory either in purpose or in effect. See 
Parent Association of Andrew Jackson High School v. Ambach, supra, 
598 P.2d at 714 n.6 (inconvenience of transportation for minorities 
permissible as part of voluntary desegregation effort); Higgins v. 
Board of Education of Grand Rapids, 508 P.2d 779, 793 (6th Cir. 
1974). Indeed, it is not unreasonable to infer that School 1, 
built in 1872 and thus twelve years older than any other elementary 
school in operation at the time of its closing, would have been a 
prime candidate for closing as part of the district's 1976 School 
Closing plan and thus would have resulted in substantially the same 
student reassignments as actually occurred. In sum, we conclude 
that the Board's decision to close School 1 and its subsequent 
reassignment of Runyon Heights elementary school students do not, 
in light of the aforementioned circumstances, constitute intention­
ally segregative or discriminatory acts and do not have current 
segregative effects on the district's elementary schools.

b. 1976 School Closings
By the mid-1970's, the racial segregation of Yonkers 

public schools was already quite pronounced. In 1970, seven

ai°\



Southwest Yonkers elementary schools (3,6,12,18,19,25,King) had 
disproportionately (45% to 85%) minority enrollments and enrolled 
74% of the minority elementary school students in the district, 
while all of East Yonkers' elementary schools were at least 95% 
white. By 1975, twelve Southwest Yonkers schools (3,6,7,10,12,18, 
19,25, King, Longfellow, Commerce,Yonkers High) had predominantly 
(over 50%) minority student enrollments, constituting 66% of the 
district's minority students; seventeen schools in East and North­
west Yonkers (8,1 1 ,1 4 ,1 5 ,1 6 ,17,21,22,28,29,30,32,34,Emerson,Twain, 
Whitman,Lincoln) were at least 95% white. Similar racial imbalance 
was reflected in the school district's principal and teaching 
assignments as well; six of the seven black principals employed by 
the Board in 1975 worked in schools of at least 75% minority 
student e n r o l l m e n t . A t  the same time, the demographic charac­
teristics of Yonkers were undergoing similar segregative changes, 
including the City's addition of sixteen subsidized housing 
projects, all of them located in Southwest Yonkers.

The school integration policy of New York State education 
authorities also began to reflect considerably more flexibility in 
its approach to the question of school desegregation. As late as 
1972, the state continued to adhere to its previously stated 
commitment to integrated education and its recognition of the 
inherent inequality of segregated schools. Recognizing the 
recently increasing "passions" surrounding the issue of busing, the 
Regents nevertheless deplored the "emotional misapprehensions 
concerning the issue. The state concluded that

[ulntil residential and occupational integra­
tion becomes a reality in this nation —  the

3SO



ultimate sign that skin color has lost its evil 
fetish — the judicious and reasonable use of 
]i[jotor vehicles may be in many instances the 
only instrument available to enable local com­munities to meet constitutional requirements 
and educational goals.

GX 909.4
By 1974, however, the Regents stated that such transpor­

tation was appropriate where "demonstrably necessary to achieve 
integrated education" and that competing considerations of health 
and safety of children, particularly those of elementary school 
age, must also be recognized and respected. GX 909.5. In 1975, the 
state issued additional statements reaffirming and expanding upon 
its previous policies concerning transportation and integration. 
The Regents stated that, in its view, racial integration did not 
imply or require quantitative racial balance in all schools within 
a district but that serious efforts should nevertheless be made to 
bring about equal educational opportunity, including racial and 
ethnic integration. The Regents stated that "if a school district 
avails itself seriously and truly of available means to integrate 
its student population, then it should not be required to establish 
or maintain particular ratios of students from different ethnic 
origins." GX 909.6. One month later, the Regents expanded upon 
its previous statement. It noted the controversial nature of the 
use of busing as a means of achieving racial integration in
schools, stating that

[w]e also understand that busing has become a 
source of serious argument not alone because some of its opponents may be illiberal, or 
racist, but also because many responsible 
people, black and white, do not regard the massive transportation of pupils out of their 
neighborhoods for purposes of achieving racial



balance to be productive in the education of 
our children.

GX 909.7.
While it reaffirmed its commitment to the creation of 

integrated schools as an essential means of assuring equal 
opportunity for quality education, the Regents declared that such a 
goal was to be pursued by utilizing a number of methods, including, 
but not limited to, use of "judicious and reasonable transporta­
tion" of pupils. The Regents specifically noted that magnet 
schools, open enrollment or optional transfer plans, the closing of 
unneeded schools, and compensatory education programs were also 
appropriate methods of achieving this goal.

At the same time, the Board was confronted with 
increasing demands for desegregation of the Yonkers public schools. 
In response to written requests by the NAACP that the Board take 
immediate action to remedy the racial imbalance of the schools, GX
925.1,925.5, the Board created, in October 1975, a Task Force for 
Quality Education ("Task Force") for the purpose of examining and 
proposing methods for alleviating the problem of minority isolation 
and insuring quality education for Yonkers public schools students. 
GX 925.7; P-I 59-9; Tr. 9858-59 (Minervini) . The Task Force, 
comprised of members of community and religious organizations and 
other Yonkers citizens, set as its primary goal the issuance of a 
report containing findings regarding and recommended solutions to, 
the issues of quality education and racial imbalance. The imple­
mentation of a remedial plan was tentatively scheduled to commence 
by September 1976.

The efforts of the Task Force, however, were quickly

2 ^ ^



overshadowed. Instead, the 1975-76 school year was marked most 
prominently by the onset of the city's severe financial crisis. On 
November 13, 1975, a state of financial emergency in Yonkers was 
declared by New York State and an Emergency Financial Control Board 
("EFCB") was established to oversee the fiscal affairs of the city 
and school district. In addition to implementing assorted city- 
imposed budgetary cutbacks totalling approximately $6 million for 
the 1975-76 school year, the Board was required by the EFCB to 
implement an additional $9.7 million in budget reductions (approxi­
mately half of the city's total budget deficit) by July 1, 1977. GX 
777.

The mandated reduction of the school's budget was imple­
mented in two stages: a $2.3 million reduction for 1975-76, and 
the remaining $7.4 million for 1976-77. These cutbacks were 
initiated in early 1976 by eliminating over 500 professional and 
non-professional staff positions in the district, including over 
250 teaching positions. These cutbacks affected a wide array of 
educational programs, including the elimination of the district's 
pre-K program and the termination of fifteen reading teachers. In 
addition, the district eliminated over 100 school crossing guard 
positions, resulting in community protests and a number of 
accidents involving children walking to school. SB 838-844. In 
December 1976, the City Council passed a resolution requesting the 
Task Force to delay for six months the issuance of its final 
report. GX 141. The Task Force complied with this request.

The second stage of budget reductions took the form of a 
proposal to close seven schools and eliminate additional staff



positions. As a result of these cutbacks, additional educational 
programs were curtailed or eliminated, including the More Effective 
Schools program at Schools 6 and 12, the Head Start program, and 
the English-as-a-Second Language bilingual instruction program. GX 
777, 780, 783, 787.

In March 1976, Superintendent Robitaille submitted to the 
Board a detailed proposal recommending the closing of six elemen­
tary schools (3,4,7,12,15,24) and one middle school (Commerce). 
These schools were chosen in accordance with a point system which 
was designed to weigh five factors —  physical characteristics, 
special areas (e.g., library, gym, cafeteria), internal character­
istics (e.g., class size and utilization), cost of operation, and 
population and enrollment (including racial balance) —  in order to 
determine the most suitable schools for closing. The use of objec­
tive criteria was also designed to help the school administration 
to justify its decisions to close particular schools in anticipa­
tion of the strong community opposition which the proposal was 
likely to engender.

The decisions to close particular schools were in fact 
based on an evaluation of primarily race-neutral criteria. Most of 
the schools recommended for closing were severely underutilized, 
with several schools operating at roughly half capacity. Schools 3 
and 4 were the oldest schools in the district, and, along with 
School 7, were in need of substantial renovation and rehabilita­
tion. Most of the schools suffered from a variety of physical 
inadequacies, such as the lack of a cafeteria (School 12) or play­
ground space (School 7). The closing of Commerce, the only middle



school closed as part of the district's 1976 school closings, was 
also recommended primarily because of the substantial savings 
realizable from staff reductions and the schools's severe under­
utilization and racial imbalance (77% minority, versus 28% 
districtwide middle school average). GX 567. In addition, an 
effort was made to close schools in such a manner as would allow for 
the reassignment of students to schools within walking distance 
from their homes; the Board lacked sufficient funds to provide
transportation for reassigned students.

In March 1976, the Board held a series of public hearings
on the administration's proposal. Not surprisingly, the anticipa­
ted resistance to particular school closings was quite forcefully 
expressed by community members. Similar opposition was also 
brought to the Board's atention in the form of numerous written 
protests and position papers from various community organizations 
and members. Opposition to the proposed closing of Schools 4 and 
15, predominantly white (97% and 99%, respectively, in 1975-76) 
schools in East Yonkers, was particularly intense. This opposition 
was devoid of racial overtones; in fact, none of the contemplated 
reassignments of School 4 or School 15 students involved any 
significant degree of desegregation. Instead, the opposition to 
these school closings was based primarily on the loss of each 
community's neighborhood school and the resulting burdens involved 
in being reassigned to other surrounding schools in the East 
Yonkers area. Among the most frequently cited problems or budens 
were traffic and parking difficulties at reassigned schools and 
safety concerns regarding children walking to their newly assigned



school. Parents in the School 15 area were led by Mayor Angelo 
Martinelli in a group walk to demonstrate the travel burdens which 
would be imposed on School 15 students if the Board decided to 
close the school. The reassignment of School 4 students to Schools 
14,17 and 21 was also opposed because of the community's assertion 
that students would have to travel longer, more hazardous walking 
routes; complaints were made about thirty to forty-five minute 
travel times over hazardous and hilly terrain. Opposition was also 
expressed regarding the configuration of neighboring school 
buildings and other facility-related concerns. See SB 574-578.

Southwest Yonkers community members also opposed the 
closing of their neighborhood elementary schools. This opposition 
was based in part on the overcrowding which community members 
claimed would result at neighboring schools (the closing of Schools 
3,7 and 12 involved the reassignment of 1,193 students; the 
closing of Schools 4 and 15 entailed the reassignment of 601 
students). Concerns were also expressed by the School 3 PTA 
regarding the racial consequences of the School 3 closing and the 
resulting white flight which it claimed would result if white 
School 3 students were reassigned to more heavily minority School 
19; the PTA instead urged that School 19 be closed as the district 
had previously contemplated. GX 519. The Commerce PTA expressed 
concern that the closing of Commerce Middle School would dissipate 
the benefits of perceived educational improvements at the school, 
and asked that any redistricting of schools be done on an east-west 
basis in order to alleviate racial imbalance. GX 776.

Notwithstanding the community's opposition to the

3 ^ 6



various school closings, on April 13, 1976 the Board approved the 
administration's school closing plan. GX 780. Community 
opposition, however, was by no means completely dissipated by the 
Board's decision. In particular, the strong community resistance 
to the two East Yonkers school closings intensified subsequent to 
the Board's approval of the administration's plan. Several Board 
members, including Anne Bocik, Robert Jacobson and Angelo Paradiso, 
were subjected to various forms of personal harassment (picketing 
and verbal threats) as a result of the Board's decision to close 
two East Yonkers elementary schools. Tr. 5066 (Jacobson); Tr. 
5313-15 (Morris); SB 581. Mayor Martinelli commissioned a safety 
study for the purpose of demonstating the hazards of reassigning 
School 4 and 15 students to neighboring schools. Tr. 7635-44 
(Martinelli). A sit-in was conducted at the Board of Education 
building in protest of the School 15 closing. Tr. 11,268 
(Guerney). The School 15 community, with the help of Seelig Lester 
(appointed to the Board in November 1976) , opened an alternative 
"freedom school" in the School 15 area rather than send their 
children to Schools 26 and 28. The Citizens Committee for Quality 
Education proposed the creation of a magnet program at School 15 in 
an attempt to secure its reopening. GX 941. Mayor Martinelli, in a 
written appeal to New York State Commissioner of Education Ewald 
Nyquist, expressed his belief that the Board's decision to close 
seven schools was arbitrary and capricious and should be immediate­
ly reconsidered. GX 283. Martinelli and Lester also met with 
Nyquist to protest the closing of School 15. Tr. 7624 
(Martinelli). Legal proceedings were instituted by parents, of



children formerly attending School 15 and were pursued all the way 
to the New York Court of Appeals in an unsuccessful effort to over­
turn the Board's decision. SB 272. Southwest Yonkers community 
members also voiced objections to the Board's decision and 
expressed concern that the Board might reconsider its closing of 
East Yonkers schools without similarly considering the reopening of 
Southwest Yonkers schools. SB 302. Notwithstanding this 
persistent and uniformly negative reaction to the Board's decision, 
the school closings were implemented, as recommended, beginning 
with the 1976-77 school year.

In numerical terms, the racial effects of the 1976 school 
closings and student reassignments may be summarized as follows:

238



H O O L S  C L O S E D

Geograph. No. Studts
School Location W M

3 SW 178 369 67%

4 SE 317 7 2%

7 SW 135 206 60%

12 SW 10 295 97%

oo
15 NE 275 2 0%

24 NW 205 50 20%

Commerce SW 120 407 77%!b/

13 
19
27
11
14
17 
21

18 
23
9

16
King
26
28 '
5
31

Emerson
Fermi
Hawthorne
Longfellow

R E C E I V I N G S C H 0 •0 L S ^

Actual
Geograph. 
Location

Estimated . 
No. Studts— 
W M

%
Before Minority

After
Expected

SW 36 43 19% 23% 26%SW 78 146 79% 70% 78%
SW 47 200 15% 43% 52%
SE 50 1 4% 4% 5%SE 134 3 4% 3% 6%SE 56 1 2% 2% 3%SE 73 2 2% 2% 4%

SW 40 61 61% 61% 61%SW 95 145 31% 41% 41%

SW 4 32% 54% 52%NW 66 3I/ 1% 2% 5%SW 6 171 83% 87% 98%

NE 103 1 8% 7% 6%NE 172 1 2% 1% 2%

Central 189 15% 11% 9%
NE 1 53^/ 7% 23% 27%

Central 46 73 15% 21% 26%NW 55 55 3% 10% 17%SW 11 68 48% 52% 56%SW 7 57 50% 53% 54%
SW 21 163 81% 83% 90%

a/ The districtwide elementary school average in 1975-76 was 30% minority, 
b/ The districtwide middle school average in 1975-76 was 28% minority.
c/ The expected enrollments are derived from district estimates based upon computations of racial 

enrollments for the affected schools. Tr. 11,902 (Armor); SB 806.
d/ Reflects former School 9 students reassigned to School 16. 
e/ Reflects former School 5 students reassigned to School 31.



A more detailed examination of the 1976 school closings 
reveals a mixture of desegregative and segregative consequences, 
all of which were foreseen by both the administration and the 
Board.

The closing of School 3 is a prime example of this mixed 
result. The closing of School 3 eliminated an increasingly 
racially identifiable school from Southwest Yonkers. The 
reassignment increased the racial enrollment of School 13 and, to a 
less favorable extent, School 27. School 27 was expected to change 
from 15% below the districtwide average to 13% above the 
districtwide average; it actually became a 52% minority school, 
22% above the districtwide average. This change, however, was 
designed to be and was viewed by both Board officials and the Task 
Force as an integrative step. Tr. 9842 (Minervini); Tr. 12,926 
(Dodson). On the other hand, a large number of minorities was 
reassigned to School 19, a physically inferior and heavily minority 
school.

The two school closings in East Yonkers were limited both 
in racial effect and desegregative intent. The closings eliminated 
two racially isolated (i.e., over 95% white) schools and provided 
an opportunity for a sizable number of School 15 students to attend 
a somewhat more racially balanced facility. On the other hand, the 
closings left the vast majority of students in similarly racially 
imbalanced white schools. In addition, the elimination of Schools 
4 and 15, both of which were underutilized facilities (80% and 70%, 
respectively) , limited the opportunities which might otherwise have 
existed for future desegregation via the reassignment of minority



students from educetionally and physically Inferior Southwest 
Yonkers schools.

The closing of elementary schools in Southwest Yonkers 
presents a similar amalgamation of positive and negative racial 
effects. The closing of School 7 eliminated a racially imbalanced 
minority school but did little to improve the racial balance of 
neighborhing schools to which School 7 students were reassigned. 
School 23, which formerly had a minority enrollment almost equal to 
the districtwide average, became an increasingly and eventually 
predominantly minority school. Nevertheless, the large number of 
white and minority students reassigned to School 23 were afforded 
an opportunity to attend what was at the time a significantly more 
racially balanced facility. The Board failed to reassign minority 
students from School 7 to School 17, a 2% minority school approxi­
mately one-and-a-quarter to one-and-a-half miles from the eastern 
portion of the School 7 zone, rather than to School 23, slightly 
over .one-half mile away, even though the Board simultaneously 
reassigned 127 (124 white) former School 4 students over one mile 
to School 14. The capacity and projected enrollment figures relied 
upon by the school administration, however, would appear to justify 
the Board's failue to adopt this alternative. Even without such a 
change. School 17 was projected to be only thirty-two students 
below capacity, while School 23 was projected to be 198 students
below capacity.

The closing of School 12, while salutary insofar as 
eliminated a highly racially imbalanced school from Southwest 
Yonkers, was largely segregative in its ultimate impact. Both

2 V



School 9 and King became more racially imbalanced, solidifying 
King's identifiably minority image and tipping School 9, a previ­
ously racially balanced (32% minority) school, into predominantly 
minority status as well. While a fair number of black students 
were reassigned to School 9 and thus were provided with an 
opportunity to attend a more racially balanced school, a number of 
white students underwent the opposite experience as a consequence 
of being reassigned from School 9 to virtually all-white School 16. 
Thus, the elimination of one racially imbalanced school created or 
solidified the racial identifiability of three surrounding schools.

The School 24 closing was similar to the closing of 
School 12 in terms of its domino-like reassignment of students. 
The closing of this racially balanced school was of fairly negative 
racial consequence for School 24 students themselves, who were 
reassigned from a 20% minority to an 11% minority facility. It was 
also similar to other school closings in the district in which 
racially balanced schools, including schools located in Central 
Yonkers which were thus particularly amenable to desegregation, 
were closed by the Board. See SCHOOLS IV.A.1 supra. On the other 
hand, a number of School 5 students from the Runyon Heights area, 
all but one of whom were minorities, were reassigned to School 31 
in East Yonkers. Although this desegregative step deprived 
minority Runyon Heights students, for the second time, of their so- 
called neighborhood school experience by reassigning them to a 
school located across two major highways and roughly twice as far 
away as their former school, it was effectuated primarily in order 
to improve racial balance at School 31. Tr. 9842 (Minervini); Tr.



11,262 (Guerney)^
The closing of Commerce Middle School was significantly 

more desegregative in its racial consequences than was initially 
planned. The closing of Commerce eliminated a heavily racially 
imbalanced and educationally inferior school from Southwest 
Yonkers. The Commerce closing originally involved the anticipated 
reassignment of roughly 40% of its minority students to Longfellow, 
a plan which would have been segregative both for the reassigned 
students and for the Longfellow facility itself. The actual effect 
of the Commerce closing, however, was significantly more 
desegregative than the original enrollment projections indicated: 
in particular, Emerson's minority enrollment increased by ninety- 
two students, and Burroughs' by 117; Longfellow's minority 
enrollment increased by only twenty-four. These figures are 
consistent with the testimony of Director of Secondary Education 
John Guzzo and Commerce principal Patricia DiChiaro that efforts 
were made to reduce much of the originally anticipated segregative 
effect of the Commerce closing, primarily by reassigning more 
minority students to predominantly white Emerson and Burroughs. In 
fact, a comparison of the district's reassignment planning document 
and the district's 1967-77 middle school attendance zone lines 
confirms that a significantly minority-populated portion of the 
originally proposed Longfellow zone, including Pine Street, Grove 
Street and Ravine Avenue, was eventually included in Emerson s 
attendance zone. Compare GX 567 w i ^  SB 627; see al^ GX 430. In 
addition, this comparison reveals that a minority-populated portion

2 1 3



of the originally proposed Burroughs zone, including Grant Park, 
St. Joseph's Avenue, and the Burke Housing project, was also 
rezoned to Emerson. Thus, in reassigning Commerce students, the 
district succeeded in improving the racial balance at two 
previously heavily white middle schools —  an effort whose 
significance was recognized by Emerson administrative staff later 
that year. See P-I 34-17.

The Commerce closing was not without segregative 
consequences. Minority enrollment increased at Fermi, Hawthorne, 
and Longfellow, all of which became or remained predominantly 
minority schols. In addition, as a consequence of the Commerce 
closing, feeder patterns from Southwest Yonkers elementary schools 
to middle schools were divided in a fashion unknown in any other 
area of the district, with students from heavily minority School 6 
and King attending four middle schools. In addition, the alterna­
tive of reassigning students to either Twain (1% minority) or 
Whitman (2% minority) in East Yonkers was rejected because of the 
travel distance which would have been involved, despite the request 
of the Commerce PTA that students be reassigned on an east-west 
basis, see GX 776, and the fact that some students reassigned to 
Hawthorne, Emerson and Burroughs would now be taking public transp­
ortation to school in any event. Tr. 12,653 (DiChiaro). Enrollm­
ent and capacity figures for 1976 and 1977 suggest that 
reassignments to Whitman in particular would have been feasible; 
Whitman, with a stated capacity ranging from 1,025 (Engineering 
Department) to 1,200 (1976 School Closing Plan), had an anticipated
en ro l lm en t  of 829 for 1976.  G X 1 2 6 .  The rea s s ign m en t  of w h ites  and

•



minorities to Fermi and Hawthorne did result in a more racially 
integrated experience for those students. The reassignment of 
minorities to Fermi, however, was effectuated in spite of the oppo­
sition of Fermi parents, both white and minority, to the assignment 
of additional minority students to the school, opposi-tion which 
was based on a concen that the school would become racially identi­
fiable if additional minorities were assigned there. Tr. 2483-84 
(Guzzo). Yet given the fact that significantly more minorities 
were assigned to Emerson than both Fermi and Longfellow, despite 
the geographic proximity and substantial underutilization of the 
latter two schools, it is difficult to find that the assignment of 
minorities to these predominantly minority schools was a delibera­
tely segregative act. The evidence regarding the closing of 
Commerce is instead consistent with the testimony of Superintendent 
Robitaille and others that the 1976 school closings and student 
reassignments as whole constituted attempts to effectuate modest 
improvements in racial balance, with more comprehensive efforts at 
school desegregation to be implemented in subsequent years.

On balance, the record suggests that fiscal, rather than 
racial, considerations were clearly the predominant factors 
underlying the decisions to close particular schools. The point 
system used by Superintendent Robitaille and his staff illustrates 
the extent to which racial balance, while a factor in determining 
the most suitable schools for closing, was only one of many 
relevant factors which were considered by school officials. To be 
sure, desegregative measures were also implemented where possible 
to do so in a manner consistent with the Board's overall fiscal

■



objectives. Indeed, both the testimony of school officials and 
evidence of the numerical and racial impact of the school closings 
and student reassignments reflect the limited yet observable 
desegregative steps taken by the Board. On balance, however, the 
inconsistent racial consequences of the 1976 school closings and 
student reassignments, as compared with the more consistently 
followed race-neutral reasons underlying those same decisions, 
illustrate the order of priorities which underlie the district's 
school closing decisions.

The Board's guarded receptivity to more desegregative 
alternatives to the 1976 School Closing plan is further evidence of 
its fiscal, rather thaa desegregative,, priorities at the time. 
When confronted by school closing and reassignment alternatives 
encompassing a more aggressive pursuit of school desegregation, the 
Superintendent and his staff adhered to their initial 
recommendations, in some instances deliberately delaying school 
desegregation efforts for a future time. For example, the NAACP 
recommended to the Superintendent and Board that they consider 
closing the educationally troubled and underutilized School 6 (98% 
minority) and Longfellow Middle School (81% minority) and reassign 
their students in a desegregative manner. The NAACP also suggested 
the redrawing of high school attendance zone boundaries in order to 
alleviate increasing racial imbalance. Curtis Giddings, the 
Board's sole minority member, voted against the school closing plan 
primarily because of the plan's failure to make significant headway 
in eliminating racial imbalance in the district's schools. 
Giddings acknowledged, however, that the Board's primary concern

2 ‘=\(p



was fiscal while his was racial, and that the plan did make some 
improvement in racial balance. SB 867. According to NAACP 
President Winston Ross and Superintendent Robitaille, the failure 
to adopt these proosals also reflected both the perceived 
infeasibility of their present implementation and the 
Superintendent's intention to recommend that these schools be 
closed as part of a future desegregation plan. Tr. 3604-06 (Ross); 
Tr. 4616-18 (Robitaille). Similarly, the Board's response to these 
suggestions acknowledged that the school closing plan was "not 
primarily concerned with desegregation and integration, but rather 
a fiscal solution to a monetary problem" and that some of the 
suggested alterntlves would hopefully "be forthcoming." P-l 58-54.

In sura, the effect of the 1976 school closings on the 
racial balance of Yonkers public schools was decidedly mixed; 
while some aspects were desegregative, the rejection of 
alternatives for avoiding increased racial imbalance and for 
furthering desegregation reflect the district's decision to 
temporarily create or perpetuate racial imbalance until a more 
comprehensive desegregation plan could be developed. Given the 
circumstances in which the school closing plan was formulated and 
the reasons for its implementation, the liability of the Board for 
creating and maintaining racial segregation in the schools more 
appropriately turns on the circumstances underlying its subsequent 
failure to rectify the known segregative consequences of the 1976 
School Closing plan.



c. Longfellow Middle School
The racially segregated condition of Longfellow Middle 

School, like the vast majority of the district's other schools, has 
been perpetuated primarily because of segregative omissions rather 
than affirmative acts: the failure either to close the school and 
reassign its students elsewhere, or to reassign students from other 
schools to Longfellow. The failure to eliminate the racial
segregation at Longfellow represents the culmination of a long 
history of increasing racial imbalance at the facility, decreasing 
justification for keeping the facility open, repeated proposals to 
close the facility, and the repeated rejection of such proposals as 
the school became increasingly underutilized and racially 
segregated. The circumstances surrounding the continued racial 
imbalance at Longfellow is thus illustrative of the racial 
imbalance at many of Southwest Yonkers' public schools. Because of 
the particularly extensive nature of Longfellow's racial imbalance, 
physicial inadequacy, and proposals for closing, however, we will
discuss it separately in our findings.

Since 1930, the Longfellow Middle School has been located
in the former School 20 elementary school building, a relatively 
small facility with no outdoor recreational space. Racial 
imbalance at Longfellow, located in the northeast section of the 
Southwest Yonkers area, has existed at least as far back as 1950, 
the year in which numerical evidence of estimated student 
enrollments is first available. In 1950, Longfellow's estimated 
minority enrollment was larger than any other junior high school in 
the district: the school was only 12% minority, but it also



enrolled 41% of the district's junior high school minority 
students. SB 810.3. Since that time, the increasing racial 
imbalance at Longfellow has arisen partly because of the population 
growth in the Central West and Northwest Yonkers areas. This 
population growth led to the opening of several new junior high and 
middle schools and the repeated contraction of the Longfellow 
attendance zone. The effect of these school openings on 
Longfellow's student enrollment is reflected in the following 
table:

N W

SchoolDate Opening
% Minority, Before

Expected Decrease (Increase) in Number of Longfellow Students
% Minority, 

After
’ W M

1954 Gorton 15% 72 0 16%
1963 Emerson 22% 228 108-/ 16%
1969 Burroughs 43% 42 (16)^/ 48%
1973 Commerce 79% 22 11 82%

a/ Includes estimated reassignment of seven whites and one minority 
“ to Franklin Junior High School. SB 810.7.
b/ Represents (a) estimated reassignment of ninety-three whites to 
“ Burroughs and (b) estimated reassignment of fifty-one whites and 

sixteen minorities from Gorton. SB 810.7.



Prior to 1963, the Longfellow attendance zone included 
areas of Central and Northwest Yonkers on both sides of the Saw 
Mill River Parkway. Until 1954, students attended both Longfellow 
and the Longfellow annex, located in Central Yonkers, east of the 
parkway. In 1954, the annex became part of the School 5 
elementary/middle school facility and Gorton Junior High School was 
opened. From 1954 to 1963, Longfellow continued to draw students 
from the Runyon Heights and Homefield areas, both of which are east 
of the parkway and north of Tuckahoe Road. By 1960, Longfellow was 
17% minority and, along with 17% minority Hawthorne, enrolled 71% 
of the district's middle school minority students.

The two most significant contractions of the Longfellow 
zone occurred when Emerson and Burroughs Junior High Schools were 
opened. These changes were either not significantly segregative in 
effect or not segregative in intent insofar as Longfellow was 
concerned. The 1963 redistricting of predominantly white Homefield 
residents from Longfellow to the newly opened Emerson facility, 
although responsive to residents' pressure for such a change, was 
based on race-neutral considerations. The construction of a new 
junior high school facility in Northwest Yonkers had been 
recommended in 1957 by the New York State Department of Education. 
GX 46, at 30. By 1960, the population growth in Northwest Yonkers 
prompted Superintendent Wynstra to recommend the acquisition of 
what is presently the Emerson site for the construction of a 
combined elementary/junior high school facility. SB 851. By 1963, 
Longfellow was operating at 107% to 135% capacity, whereas Emerson 
was operating at less than 60% capacity just after its opening.

3oo.



During the remainder of the 1960's, Longfellow's total 
student enrollment remained relatively constant. SB 810.7; GX 64 
(1963 - 540 students (estimated); 1967 - 530 students; 1969 -573 
students). The significant increase in Longfellow's percentage 
minority student enrollment from 1963 to 1969 was caused primarily 
by the combination of two numerically inverse trends: increasing 
minority population in the Longfellow attendance area, which 
included the Mulford Gardens and Schlobohm subsidized housing pro­
jects, and the decline in white enrollment at Longfellow during 
this same period. From 1963 to 1967, Longfellow's white student 
enrollment declined from 455 to 331, while its minority student en­
rollment during this same period increased from eighty-five to 199. 
By 1967, Longfellow was 38% minority, the most heavily minority 
junior high school in the district. While some of this increase 
may be explained by demographic forces unrelated to conduct of the 
Board, it is reasonable to conclude that some portion of these 
changes was attributable to the educational inadequacies at the 
school, see, e.g., GX 605, as well as the increasing minority 
population concentration in that area.

The opening of Central Yonkers' Burroughs Junior High 
School in 1969 was the result of increased overcrowding in 
surrounding middle and K-8 elementary schools. The need for an 
additional junior high school facility in Central Yonkers due to 
the anticipated population growth in the area was recognized as 
early as 1960 by Superintendent Wynstra and the Board's Buildings 
and Sites Committee. SB 851. By 1969, the student enrollments at 
five surrounding schools with junior high students (5, 8, Whitman,

3o1



Gorton, Lincoln) were in excess of maximum capacity; two of these 
schools (Schools 5 and 8) were combined elementary/middle schools. 
At that time, Longfellow enrolled 676 students, with a stated 
capacity ranging from 650 (Phase II) to 820 (Engineering 
Department).

The effect of the Burroughs opening on Longfellow was 
racially segregative: an appreciable number of whites residing 
west of the Saw Mill River Parkway were reassigned to Burroughs. 
Those students, though they resided within approximately one mile 
of Longfellow, were even closer to the new and physically superior 
Burroughs facility. In addition, fifty-one white and sixteen 
minority students were reassigned from Gorton to Longfellow, thus 
ameliorating the segregative effect of the aforementioned 
reassignment. Following the Burroughs opening, both Burroughs and 
Longfellow were operating at approximately the same level of 
capacity. These factors, and the absence of evidence indicating 
that racial factors were considered in opening Burroughs, support a 
finding that the reassignment of white students from Longfellow to 
Burroughs was not deliberately segregative in whole or in part.

The moat significant segregative changes in Longfellow's 
enrollment occurred during the three years following Burroughs' 
opening. During this time, Longfellow's white student enrollment 
dropped by 147 students, over half of its 1969 white student 
enrollment. Since the Board made no attendance zone changes and 
the schools' minority enrollment remained relatively constant 
during this period (289 to 302 minority students), it is reasonable 
to infer that many white students either relocated or enrolled in



private junior high schools in the Longfellow areaji^ As noted 
earlier, at least some of this decline is reasonably attributable 
to Longfellow's recognized inadequacy as a junior high school 
facility and the increase in minority population in that area of 
the city. Indeed, by this time, discussions regarding the 
inadequacies of the Longfellow facility and the proposed closing of 
the school were evident. In 1967, the Longfellow PTA urged the 
Board to reassign Longfellow students to Emerson, a proposal 
prompted largely by the perceived inadequacies of Longfellow's 
indoor and outdoor facilities. GX 605. The Board's 1969 capital 
budget request included an allocation for the conversion of 
Longfellow into an elementary school. P-I 51-57. By around 1970, 
Board members were beginning to consider closing Longfellow based 
primarily on its increasing racial imbalance as well as the 
relative quality of educational opportunity at the school. Tr. 
5440 (Siragusa). Superintendent Mitchell's plans for converting 
Longfellow contemplated the reas-signment of Longfellow Junior 
High School students to the recently opened Burroughs facility. P- 
I 51-64.

The closing of Longfellow was considered more seriously 
in 1972 as part of the district's consideration of a variety of 
proposals for reorganizing the district's secondary schools. See 
SCHOOLS IV.F.2 infra. Several proposals were considered for clos­
ing Longfellow and using the facility either for a variety of other 
educational uses (e.g., as an elementary school or alternative high 
school) or as a facility for adult programs, drug programs, or 
sheltered workshops. GX 760, at 44,945; 761, at 42,808; 762, at

5 o 3



42,825.
While the closing of the Longfellow facility was 

considered beneficial, the reassignment of its students to other 
schools was considered problematic. The proposal which appears to 
have received most serious consideration was to close Longfellow 
and Franklin Junior High Schools and reassign their students to the 
old Yonkers High School facility as soon as the new Yonkers High 
School facility was opened. GX 115, at 43; 761, at 42,808.
Franklin, like Longfellow, had been repeatedly recognized to be a 
physically inadequate facility. The 1973 Reorganization Plan 
adopted by the Board, however, recommended only that Franklin be 
closed and its students reassigned to the old Yonkers High School, 
renamed Fermi Middle School. Although there is a dearth of direct 
evidence explaining Why only Franklin was recommended for closing, 
it is reasonable to conclude that the desire to avoid opening Fermi 
as a racially identifiable middle school was a primary 
consideration. According to Board member Rosemarie Siragusa, the 
proposed reassignment of Longfellow students to Commerce (as part 
of the proposed opening of Commerce Middle School) was considered 
inadvisable for similar reasons. Tr. 5442-43. Second, similar 
concerns were expressed by white and minority Fermi parents three 
years later when the district proposed the closing of Commerce and 
the reassignment of some of its mostly minority students to Fermi. 
As an alternative to the proposed reassignment of Longfellow 
students to Fermi, Siragusa suggested to Superintendent Alioto and 
Board members that Longfellow students be reassigned to Twain 
Middle School^ a recently opened 3% minority school in Southeast

3 o 4  .



Yonkers. According to Siragusa, this proposal was rejected because 
of the long travel distances between the two schools and the 
perceived inability of Longfellow parents either to provide 
(through carpools) or to pay for the necessary transportation. Tr. 
5442-45.

As a result, the Longfellow Middle School emerged 
virtually unaffected by the 1973 Reorganization Plan. The Commerce 
and Fermi Middle School openings had relatively little effect on 
Longfellow. Only thirty-three Longfellow students were reassigned 
to Commerce in 1974, a year after its opening. No students were 
reassigned to Fermi, which opened as a 41% minority middle school. 
By 1974, Longfellow was 76% minority, and had begun what was to 
become an uninterrupted decline in its student enrollment.

The Board's conduct since 1974 has consisted of a 
continued failure to implement desegregative proposals involving 
the Longfellow facility. As noted elsewhere in these findings, at 
least three specific proposals to close Longfellow were made in the 
mid to late 1970's. In 1976, the NAACP suggested that Longfellow 
be closed as part of the district's fiscally motivated school 
closing plan. In a letter to the Board, Yonkers NAACP President 
Winston Ross stated that the school's racial imbalance, age, and 
physical condition made Longfellow a desirable candidate for 
closing. GX 779. Ross also suggested that the elementary school 
portions of Emerson and Twain Middle Schools be closed to create 
additional room for the reassignment of Longfellow students. Id. 
Ross noted that the additional school closings would reduce racial 
imbalance and would provide additional finanacial resources for

3o5



program enrichment and rehiring of specialized school staff, id.
While the desirability of closing Longfellow was 

recognized by the school administration, the Board's response to 
Ross stated that the school closing plan was concerned primarily 
with fiscal, rather than desegregative, considerations and 
suggested that Ross' proposals would be given future consideration. 
P-I 58-54. Consistent with the Board's position. Superintendent 
Robitaille decided that, based on Longfellow's age, high racial 
imbalance and surrounding redevelopment in the community, the 
school's closing would be recommended as part of the 
administration's forthcoming desegregation plan. Tr. 4631 
(Robitaille) .

In its 1977 Phase II Reorganization Plan, the 
administration recommended that the Board close Longfellow and 
return the facility to the City. The plan also proposed the 
closing of Emerson Elementary School (School 34) and the conversion 
of the Emerson facility into a two-year middle school.

The Board's failure to close Longfellow as recommended in 
Phase II is, as will discussed further (see SCHOOLS IV.F.3 
infra), difficult to explain in race-neutral terms. The school's 
size, age, underutilization and racial imbalance, in addition to 
the sizeable financial savings to be gained from the closing of a 
middle school, made it a prime candidate for such action. The 
capacity of the district's other middle schools also made 
Longfellow's closing a feasible alternative and a desegregative one 
as well. In particular. Twain Middle School (2% minority) was 
operating below its stated capacity; in 1978-79, the school year

3 o g >



following Phase II's rejection. Twain Middle School was operating 
from 245 (Phase II) to 390 (Engineering Department) students below 
capacity, and thus could have absorbed a substantial portion of 
Longfellow's 426 students. By 1980, the conversion of the 
district's middle schools from grades 6-8 to 7-8 left Twain with 
673 middle school students, below half its full capacity. While 
Twain was certainly a considerable distance from the Longfellow 
attendance zone, such distances or other travel-related burdens did 
not prevent the district from simultaneously reassigning Burroughs 
students an even greater distance to Whitman, in Northeast Yonkers, 
in the aftermath of Phase II. Tr. 2522-24 (Guzzo) . Some Twain 
students in the northwest portion of that school's attendance zone 
were also travelling a considerable distance (approximately two- 
and-a-half miles) to attend school. Financial considerations also 
would not have posed a significant problem, given the state's 
reimbursement policy with respect to transportation for purposes of 
desegregation and the fiscal savings to be generated by closing 
Longfellow.i^/ In addition, the district made no efforts to 
consider the use of, or assist in arranging, privately-contracted 
transportation for Longfellow students, as it had done several 
times elsewhere in the district. Tr. 2521 (Guzzo). Instead, the 
Board kept the 89% minority school open, despite the recognized 
inadequacy of its facilities, its racial imbalance, and the 
increasing underutilization of the school.

The district also failed to adopt alternative measures 
for lessening racial imbalance at Longfellow, namely, reassigning 
former Burroughs students to the school. This proposal was

3o1



suggested to the Board while the 1977 Phase II reorganization plan 
was still under consideration. Phase II recommended that Burroughs 
be converted into the new Saunders Trades and Technical High School 
facility and that Longfellow (as well as Fermi Middle School in 
Southwest Yonkers) be closed. GX 98, at 16-17. At an April 1978 
Board meeting and in a May 1978 letter to Board President John 
Romano, the Longfellow PTA urged the Board to consider reassigning 
Burroughs students to Longfellow in an effort to promote greater 
racial balance at the school and thus prevent the closing of the 
school, as was recommended in Phase II. GX 679, 852. The letter 
stated that this proposal would enable the Board both to avoid 
closing the two remaining centrally located middle schools in the 
district (Burroughs and Longfellow) and to achieve desegregation on 
the middle school level without rsort to busing. GX 852. Indeed, 
both Longfellow and Fermi were located on the same side of the Saw 
Mill River Parkway as the westernmost portion of the Burroughs 
zone, just a fraction of the distance between this area and 
Whitman. Longfellow also was the very school to which students 
from this area had been assigned prior to the opening of Burroughs 
in 1969. In fact, students from the School 5 and former School 24 
attendance areas had never before been assigned to either Emerson 
(in Northwest Yonkers) or Whitman (in Northeast Yonkers); since
1938, these students had historically attended Longfellow,

iC57’Burroughs or the former School 5 Middle School.— '
With Phase II's proposal to close Longfellow and Fermi 

still pending, the Board voted in April 1978 to reassign Burroughs 
students to Emerson and Whitman Middle Schools. GX 679. Although

3 o S



one month later the Board unanimously expressed its disapproval of 
the Phase II plan, it adhered to its reassignment of Burroughs 
students because of the possibility that Longfellow would 
eventually be closed. As a result. Burroughs students were 
reassigned up to four miles to Whitman, prompting over 100 families 
from the predominantly white western portion of the former 
Burroughs zone to request assistance from the Board in securing 
privately contracted transportation to attend Whitman. GX 880; P-i 
69-47.

Although the closing of Longfellow was still a subject of 
some discussion among school officials in 1978 and 1979, the Board 
continued to maintain the school in its severely underutilized and 
racially imbalanced condition. In May 1979, Director of Special 
Services Robert Dodson recommended to Superintendent Joan Raymond 
that the district close Longfellow and reassign its students to the 
nearby Fermi Middle School. Dodson noted that this proposal would 
eliminate the problem of Longfellow's racial imbalance and would be 
feasible from a capacity standpoint. GX 754. Although Dodson 
could not recall why this proposal was not adopted, he noted that 
he had heard discussions concerning the Justice Department's 
prelitigation investigation into this case and the resulting 
uncertainty which school officials harbored as to the future state 
of the schools. Tr. 13,212-14. It is also reasonable to infer 
that this particular reassignment would have been resisted, as it 
had in earlier years, because of the racial imbalance which would 
have resulted at Fermi, a 58% minority school which would have 
become 72% minority had Dodson's proposal been adopted. 
Consideration was apparently not given either to reassigning

•



Longfellow students to schools in East Yonkers, or to reassigning 
former Burroughs students, who were now attending Whitman and 
Emerson, to either Longfellow or Fermi.

We recognize that the initial failure to reassign 
students to Longfellow or Fermi was caused primarily by the 
possibility that these two schools would be closed. We also 
recognize that the Longfellow facility's physical inadequacies made 
reassignments to the school a less than optimal prospect. It 
certainly cannot be suggested, however, that a school district can 
credibly justify its refusal to close an underutilized, heavily 
minority school based on the transportation burdens involved in 
reassigning its students, yet allow it to simultaneously reassign 
nearby white students to a newer, physically superior school over 
four miles away because of the possibility, never implemented, that 
the predominantly minority schools would eventually be closed. Cf. 
NAACP V. Lansing Board of Education, 429 F.Supp. 583, 603-04 
(W.D.Mich. 1976), aff'd, 559 F.2d 1042 (6th Cir.), cert, denied, 
434 U.S. 997 (1977). The racial imbalance and severe underutiliza- 
ation of Longfellow and Fermi, as well as fiscal and facility- 
related considerations, made either the closing of Longfellow 
and/or Fermi or reassignments to Longfellow and/or Fermi superior, 
less segregative alternatives to the one consistently adhered to by 
the Board.

As of 1980, Longfellow was 94% minority, by far the 
district's most segregated middle school. The school was operating 
at 31% (Engineering Department) to 40% (Phase II) capacity, also 
well below any other school in the district. The school remained

3io



open despite its physical and educational inadequacies, the 
costliness of maintaining it in its underutilized state, and the 
foreseeable decline in its enrollment, see GX 98, at 2-8 —  the 
very factors which compelled the district to close seven schools in 
.1976. Although the groundwork for Longfellow's racial imbalance 
was laid before the Board played any significant deliberately 
segregative role with respect to the school, the Board's conduct 
during the 1970's served to maintain the school's increasing racial 
imbalance. While neutral reasons predominated in the Board's
failure to close the school in earlier years, by the late 1970's 
racial considerations played an increasing role in both the 
proposals to close the school and the failure to adopt these 
proposals. Based on the above, we find that the continued
operation of Longfellow as a racially segregated and severely 
underutilized middle school was not only a foreseeable consequence 
of the Board's inaction but was in part the result of the Board's 
general unwillingness to implement desegregative measures in the 
Yonkers public schools. See Berry v. Benton Harbor, supra, 442 
F.Supp. at 1308-10 (discussing failure to remedy segregation at 
junior high schools),

4. Attendance Zone Changes
a. Schools 16 and 25
Schools 16 and 25 are located less than one mile apart in 

the Northwest Yonkers area, just east of the Hudson River. School 
16 is located on North Broadway and School 25 is located to the 
southwest on Warburton Avenue. The two schools are separated by a

3 n .



steep hill which, according to geological surveys and personal 
observation, is one of the steepest hills in Yonkers. The hill 
slopes from North Broadway downward to Warburton Avenue and the 
river. School officials testified that during the winter they must 
travel on fairly circuitous routes in order to avoid the hill 
separating the two schools. Tr. 4544-45 (Radko); Tr. 11,176-77 
(Guerney).

Prior to 1953, some students attending School 25 resided 
in an area as far east of the school as North Broadway, at the top 
of the hill. At that time, few minorities lived in the School 16 or 
25 areas; the estimated elementary school enrollments in 1950 were 
0% minority at School 16, and 4% (thirteen students) minority at 
School 25. SB 810.2. Starting in the mid-1950's, an increase in 
the minority population residing in the School 25 area occurred. 
This increase was occasioned by the first boundary change, in 1953, 
between Schools 25 (4% minority) and 16 (0% minority); thirty-five 
white students were reassigned from School 25 to School 16. While 
this boundary change was segregative in its impact, the rezoned 
area was located at or near the top of the hill separating Schools 
25 and 16 and thus made the trip to school for the affected students 
more manageable from a topographical standpoint. Such considera­
tions were in fact expressly noted by the Board less than one year 
later with respect to the middle school assignment of School 25 
students. GX 717. The Board also had just redrawn the School 6 
attendance zone boundaries so as to include whites in the School 25 
area, and percentage minority enrollments at School 16 (513 whites) 
and 25 (392 whites, seventeen minorities) were virtually identical



at the time of the boundary change.
Minority enrollment at School 25 steadily increased over 

the next fifteen years, reaching 41% in 1967; School 16 remained 
almost totally (99%) white during this period of time. During the 
1960's, three boundary changes occurred between the two schools. 
The effects of these changes are as follows;

BEFORE CHANGE STUDENTS REASSIGNED AFTER CHANGE

Year % Minority, 
School 25 % Minority, 

School 16
from.
w

25 to 16 
M % Minority 

School 25 , % Minority 
School 16

1963 14%^/ 0%-/ 9 0 14% 0%
1964 14%^/ o%2/ 23 9 13% 2%
1968 42% 1% 6 0 43% 1%

a/ Based on 1961-62 school enrollment data. Tr. 11,902 (Armor).
For a number of reasons, we find that these changes 

constitute a pattern of segregative acts by the Board sufficient to 
give rise to a finding of segregative intent.

The 1963 change is the most troubling. The rezoned area 
(Arthur Place) is located closer to Warburton Avenue (and School 
25) than to North Broadway (and School 16). Thus, students living 
in this area had to travel even farther up and down the hill between 
the two schools as a result of the boundary change. While the route 
separating Arthur Place from Warburton Avenue is a steep and 
winding one, the longer route separating Arthur Place and North 
Broadway is also difficult to negotiate. And while the disparity 
in racial enrollments at the two schools was fairly small according

313



to Dr. Armor's estimates, it is reasonable to conclude, based on 
the fact that these estimates were based on actual enrollment data 
of earlier years and that West Yonkers was undergoing a period of 
significant demographic change at the time, that the actual 
disparity was appreciably greater.

As for the 1964 boundary change, several factors persuade 
us that racial factors may not have been a factor in this 
particular change. First, the inclusion of several minorities in 
this change actually had a desegregative effect on both Schools 16 
and 25.— Second, contemporaneous evidence regarding the change 
demonstrates that safety and convenience factors were actually 
considered by school officials in implementing this change. SB 
638. In this particular instance, an examination of topographical 
and attendance zone maps does not undermine the legitimacy of these 
factors: the rezoned area is located closer to North Broadway than 
to Warburton Avenue. Third, while the district failed to reassign 
these students to Schools 9 (12% minority in 1961-62) or 6 (45% 
minority), both of which were considerably closer than School 16, 
capacity and school enrollment data suggests that overcrowding at 
Schools 6 and 9 (a condition which was soon to lead to the planning 
and construction of the King Intermediate School) made such a 
reassignment infeasible.

The 1968 boundary change involved six students from an 
area located closer to both located closer to both Warburton Avenue 
and School 25 than to North Broadway and School 16. The boundary 
change thus required the affected students to travel a hilly and 
more lengthy route to School 16. The area in question also was near

314-



an area subsequently characterized by community opposition to the 
assignment of its students in a desegregative fashion, see SCHOOLS 
IV.A.2.a supra, SCHOOLS V.E.l infra, suggesting that such 
opposition played a role in the 1968 School 16/25 boundary change. 
By this time, the racial imbalance between the two schools was 
substantial, making the segregative impact of the boundary change 
clearly foreseeable.

Additional evidence persuades us that the topographical 
considerations noted above cannot fully explain the segregative 
boundary changes involving Schools 25 and 16. Such considerations 
have often been overcome in implementing particular student 
assignments in Yonkers. For example, the closing of School 15 in 
1976 resulted in the reassignment of students over hilly terrain to 
Schools 26 and 28; the closing of School 1 in 1954 resulted in 
students travelling up the steep hill to School 5; Japanese- 
American students living in the northernmost portion of the School 
25 zone have been assigned to School 16. While neutral 
considerations justified the boundary changes and resulting travel 
burdens which students were forced to endure in each of these 
c a s e s , t h e  frequent imposition of such travel burdens undermines 
the Board's argument that topographical considerations 
necessitated the School 16/25 boundary changes. The Board's 
contention is particularly unpersuasive in light of its previous 
inclusion of the North Broadway area of the School 16 zone —  
located at the top of the School 16/25 hill in School 25's 
attendance zone. In addition, the fact that School 25 students must 
travel over the same hilly terrain to attend either Emerson or

3i5



Longfellow Middle School also is inconsistent with reliance on 
topographical considerations to justify the boundary changes 
between Schools 16 and 25. See Tr. 5476 (Siragusa).

We recognize that even school administrators widely known 
for their commitment to school desegregation have noted the 
topographical features of the School 25/16 area in considering 
whether to implement desegregative boundary changes between the two 
schools. Tr. 5414-15, 5475 (Siragusa) (discussion with Superinten­
dent Mitchell); see also Tr. 11,034 (Jacobson). Yet a careful 
examination of the specific boundary changes which have been 
effectuated in the School 16/25 area, the racial impact of these 
changes, and the inconsistent or unpersuasive invocation of 
topographical considerations to explain these changes, convince 
this Court that the changes which occurred constituted a pattern of 
conduct designed to perpetuate the increasing racial imbalance 
between the two schools. We conclude that the evidence supports a 
finding that the racially imbalanced condition of Schools 25 and 16 
has been caused in part by deliberately segregative conduct in the 
redrawing of attendance zone boundaries between these two schools.

3ICp



B. Equal Educational Opportunity
Ths disparitias bstwaan schools in Southwest Yonkers and 

elsewhere in the Yonkers School District are not only racial, but 
educational as well. A substantial amount of evidence in this case 
-has focused on both the inadequacies of Southwest Yonkers schools 
as educational facilities and the efforts of the Board to deal with 
these inadequacies. An examination of several of the most 
significant characteristics which are relevant in determining the 
quality of a school's educational program firmly establishes some 
general conclusions which are relevant to plaintiffs allegations 
of unlawful segregation and discrimination; namely, the existence 
of disparities in educational opportunities available at racially 
identifiable white and minority schools, the recognition by Board 
members and school officials of these disparities, the partly 
successful efforts of the Board and school officials to ameliorate 
the effects of some of these disparities, and the racially 
influenced failure of the Board to correct other known disparities.

The quality of education provided at any school, as well 
as the community's and school administration's perceptions of the 
school, is influenced largely by a number of key school-related 
attributes: physical characteristics, such as building and site
size, age, playground space, and the general condition of the 
facility; teaching and administrative staff characteristics, 
including their level of experience, their expectations of student 
ability, and their rate of turnover, or movement in and out of a 
particular school; student-related characteristics, including 
student mobility or turnover rates, size of student enrollments and

3 H



school overcrowding, and disciplinary problems among students; and 
educational programs or curriculum, including curricular offerings 
and programs for the advanced, the average, and the below-average 
student. Each of these categories will be discussed in turn.

1. Physical Characteristics
In general. Southwest Yonkers public schools bear all the 

marks of the typical urban school facility, while the East and 
Northwest Yonkers schools are distinctly more suburban in nature. 
In terms of building and site size, schools in Southwest Yonkers 
are, as a general matter, indisputably inferior. The five most 
heavily minority elementary schools. Schools 6, 10, 19, 25, and 
King, have an average site size of 1.83 acres (range; .93-2.52); 
the nine most heavily white elementary schools (at least 90% white) 
average 4.84 acres in site size (range; 1.33-9.53). The three 
predominantly minority middle schools, all located in Southwest 
Yonkers, have an average site size of 2.4 acres (range; .8-3.8); 
the two East Yonkers middle schools average 9.5 acres (range; 6.8- 
12.2). Yonkers and Gorton High Schools in West Yonkers are 8.0 and 
6.38 acres, respectively; Lincoln and Roosevelt High Schools in 
East Yonkers are 23.41 and 12.64 acres, respectively. GX 644.

The physical disparities in the school buildings 
themselves were accurately summarized in a 1977 report to the 
district's school facilities committee. The report, prepared by 
Director of Elementary Education Joseph Guerney, noted that 
Southwest Yonkers elementary schools generally suffered from a lack 
of classroom space, limited instructional areas for educational

3i^



specialists (e.g.. music, art, reading), and inadequate cafeteria 
facilities. The report noted that these problems existed only to 
a limited extent" in Northwest Yonkers schools and were "not 
apparent" in East Yonkers schools. GX 483. Similar disparities 
have existed, and to some extent continue to exist, at the 
secondary school level as well. Since 1930, Longfellow Middle 
School has been located in the former School 20 elementary school 
facility, a building which has long been recognized by school 
officials and parents as a physically inadequate middle school 
facility and has been repeatedly recommended for closing. GX 605; 
Tr! 12,868-69 (Dodson); SCHOOLS IV.A.3.C supra. Until 1974, 
Yonkers High School was located in the old Franklin Junior High 
(presently Fermi Middle School) facility; the physical inadequacies 
of this facility led parents to complain bitterly and even to 
request that the high school attendance zone boundaries be redrawn 
so that a more equalized distribution of physical facilities and 
educational opportunities could be achieved. GX 493, 494, 619. 
Franklin Junior High School was located in the former School 2 
elementary school facility, a building whose physical inadequacies 
led to its closing in 1974. Hawthorne Middle School used several 
storage closets as classrooms during the 1970's as a result of the 
school's physical limitations and high student enrollments. The 
School 10 facility was constructed in contemplation of its use as a 
K-3 primary school but has since been used as a K-6 elementary
school.

In terms of age, the Yonkers public schools are 
relatively evenly distributed between East and West Yonkers. Most



of Yonkers' public schools were built long before the presence of 
substantial numbers of minorities and prior to the development of 
subsidized housing in Southwest Yonkers. By 1930, the district had 
constructed Schools 1-25 and School 27 and approximately one-half 
of the presently utilized secondary school facilities. While 
Southwest Yonkers middle schools are substantially older than their 
East Yonkers counterparts, three of the four regular schools built 
since 1968 are located in the Southwest Yonkers area: King (1968) , 
School 10 (1972) , and Yonkers High School (1974) . In addition, 
most of the district's oldest elementary schools in both East 
(Schools 4 and 15) and West Yonkers (Schools 3, 7, and 12) were 
closed in 1976. Even with equally old facilities, however, such as 
Southwest Yonkers' School 6 (opened in 1889) and East Yonkers' 
School 8 (opened in 1892), the physical condition and overall 
reputation of School 6 is generally considered by Board members to 
be inferior. Tr. 5037-38 (Jacobson); Weiner Dep. 412-14.

The most striking disparity in physical facilities is in 
the playground and recreational space at West and East Yonkers 
schools. Many of the district's newer East Yonkers schools, such 
as Schools 26, 28, 29, 30 and 32, all have sizable grass-covered 
play areas outside the school building. Several Southwest Yonkers 
elementary schools, on the other hand, have little or no playground 
space; instead, they generally contain small, cement— covered play 
areas in back of the school. While some of these inadequacies, 
such as the lack of play space at Schools 7 and 12, were eliminated 
in 1976 as part of the district's school closings, substantial 
disparities still remain, particularly at School 6, see Tr. 4610



(Robitaille) , GX 475, 476 , School 10, which is both surrounded by 
the Riverview subsidized housing project and has inadequate indoor 
recreational space as well, Tr. 4992 (Jacobson); Tr. 11,642-43 
(Leahy), and School 19, where most of the available play area is 
used for parking. Tr. 13,471 (Steinberg). Longfellow and Fermi 
Middle Schools in Southwest Yonkers have no outdoor recreational 
facilities, and until 1974 Yonkers High School (then located in the 
Fermi facility) suffered from a similar inadequacy. Even among 
schools with no play space of their own, such as King (Southwest) 
and School 22 (Northwest), disparities exist with respect to the 
nearby available recreational space.

The impact of these disparities is significant. School 
officials recognized that adequate recreational facilities were not 
only important to a student's physical development but were an 
important ingredient in enabling students to better benefit from 
the instructional aspects of the educational process as well. Tr. 
4610 (Robitaille). School principals testified that inadequate 
recreational facilities were likely to result in increased 
disciplinary problems at the school. See Tr. 4713-14 (Jamieson); 
Tr. 12,773 (Marra).

The importance of a school's physical condition to the 
quality of educational experiences available at the school, as well 
as to the students' and community's perceptions of the quality of 
these experiences, has been recognized by school officials both 
within and outside the Yonkers school system. A 1957 survey of the 
Yonkers Public Schools recognized that the inadequacies of a 
school's physical attributes and overall condition are difficult to

3 ^ 1



overcome even with the leadership of competent and dedicated 
adminstrators and staff. GX 42, at 27. The study also noted the 
impact that such inadequacies had on students, specifically, that 
students perceive an indifference on the part of educational 
authorities as a result of poor conditions at their school. at 
39. This conclusion was shared by school officials as well. See GX 
609.

While most of the Yonkers public schools have suffered at 
one time from various inadequacies in their physical condition. 
Southwest Yonkers schools have generally been more seriously 
affected in this respect. Elementary schools such as Schools 3, 6, 
7, and 19 were and in some instances still are regarded as 
particularly inferior facilities. The various physical 
inadequacies at Schools 3 and 7 were recognized by various school 
officials, see GX 518, 524, 526, and led in part to their closing in 
1976. GX 126, at 6-8. Other schools, such as Schools 6 and 19, 
have been repeatedly singled out as wholly inadequate facilities 
and have been repeatedly recommended for closing as a result. Tr. 
4973 (Jacobson); Tr. 5424 (Siragusa); Tr. 5512-13 (Minervini); Tr. 
11,205-07 (Guerney); GX 507. School 19's condition was recognized 
as particularly inadequate, but the district refrained from 
expending financial resources to improve the school's condition 
because of the anticipated, but never effectuated, closing of that 
facility. P-I 19-27; Schainker Dep. 249-50. The deficiencies in 
physical conditions at East Yonkers schools, on the other hand, 
were substantially less severe in nature. See, e.g., GX 454 
(School 32); P-I 8-17 (School 8); Tr. 4754 (Jamieson) (comparing

33.a



Schools 19 and 30) .
The Board did make some attempts to eliminate some of 

these disparities; for example, the district closed Franklin and 
Commerce— ^ Middle Schools, both of which had significant problems 
with respect to their overall physical condition and the adequacy 
of their physical plant. GX 559; Tr. 2472 (Guzzo); Tr. 12,645 
(DiChiaro). In addition, the recent construction of King 
Elementary School and Yonkers High School resulted in the addition 
of two modern and well-equipped facilities to Southwest Yonkers. 
Tr. 12,901 (Dodson); SB 654. School lO's "school without walls" 
structure, designed specifically for an open education teaching 
philosophy, was considered unique and impressive from an internal 
structural point of view. SB 183. In addition, the fiscal 
limitations on the district's ability to improve or expand existing 
Southwest Yonkers facilities was not without impact on East Yonkers 
schools. See, e.g., SB 573 (difficulties with expansion of 
Roosevelt High School). Nevertheless, the record as a whole 
reflects the existence of more significant deficiencies in physical 
conditions at many of ̂ Southwest Yonkers' elementary and middle 
schools. These inadequacies, along with the physical disparities 
noted above, have resulted in inequalities in the educational 
opportunities available to the many minority students attending 
Southwest Yonkers schools. Alioto Dep. 47-48.

2. Staff
With respect to teaching and administrative staff, 

plaintiffs have attempted to demonstrate the denial of equal

3^:5



educational opportunity to students attending disproportionately 
and predominantly minority schools in three ways; (1) the relative 
inexperience of teachers in such schools, as compared with teachers 
in identifiably white schools; (2) the high turnover of faculty and 
administrative staff in disproportionately minority schools; and 
(3) the low teacher expectations of student abilities in such 
schools.

Statistical and testimonial evidence submitted by both 
plaintiffs and the Board demonstrate that, in general,
predominantly or disproportinately minority schools in Southwest 
Yonkers have been staffed by teachers with fewer years of 
experience than staff assigned to other schools in the district.

Plaintiffs submitted numerical evidence concerning 
teacher experience levels for the years 1960-76. GX 88—90, 93d. 
This analysis includes the experience levels for English, math, 
science, and social studies teachers. The analysis did not include 
reading or other teachers assigned to work in specially funded 
remedial programs, and did not include art, business, language, 
music, physical education, or shop teachers. Tr. 3374-75 
(Sweeney). The exclusion of these teachers has its benefits and 
drawbacks; "while it provides greater comparability in terms of the 
types of faculty employed systemwide, as opposed to teachers in 
particular remedial or other unevenly distributed programs, it 
consequently understates the size of a school's faculty and total 
years of experience of that faculty, and excludes teachers who were 
utilized on a full-time basis in some of these schools. To the 
extent that the trends highlighted in this analysis .. are

3 ^ 4



corroborated by the testimony of school officals and by the Board’s 
more inclusive analysis for the years 1976-80, however, plaintiffs 
statistical evidence concerning teacher experience levels is 
informative. In 1961-62, schools in East and Northwest Yonkers 
actually had lower overall teacher experience levels. Of the ten 
elementary schools with less than 1% minority students, four had 
teacher experience levels below the districtwide average of 11.31 
years, including the three schools (26, 29, 32) with the lowest 
averages (below six years) in the district. Of the five schools 
with over 20% minority enrollments, three schools (6, 7, 19) had 
faculties with greater than the districtwide average in experience.
A similar pattern existed at the secondary school level as well. 
GX 88.

By 1967-68, the trend had changed somewhat; the range in 
teacher experience at 40% (or more) minority elementary schools was 
5.61-7.88 years; similarly, the range at less than 1% minority 
elementary schools was 5.50-8.00 years —  all below the 8.45 years 
districtwide average. Of the six schools with staffs averaging 
over ten years in experience, however, four schools (4, 16, 21, 22) 
were less than 4% minority (the other two were School 5 (11%
minority) and School 27 (9% minority)). Experience levels at the
secondary school level remained relatively even.

By 1971-72, the divergence in staff experience levels 
began to clearly materialize. Of the seven elementary schools with 
at least 40% minority enrollments, six of them were below the 
districtwide average (7.15 years) in teacher experience, ranging 
from 3.33 to 6.19 years. Of the thirteen elementary schools with

3<55



under 5% minority enrollments, only two of them had below average 
teacher experience levels (School 21 - 5.31 years; School 14 - 6.25 
years). Of the four schools with staffs averaging over ten years 
in experience, three schools (17, 30, 32) were virtually all-white 
schools in East Yonkers.

By 1973-74, this trend appeared at the high school level 
as well: Gorton (24% minority) and Yonkers (34% minority) had
staffs averaging 5.89 and 9.22 years of experience, respectively, 
while Lincoln (3% minority) and Roosevelt (7% minority) had staffs 
averaging 11.12 and 12.15 years of experience, respectively. By 
1 9 7 5 -7 5  ̂ the year in which the city's fiscal crisis resulted in 
substantial reductions in teaching staff, seven of the district s 
eight predominantly minority schools had average teacher experience 
levels below the 10.60 years districtwide average, including the 
four schools with the most inexperienced staffs in the district 
(Schools 6, 10, 19 and 25, ranging from 4.75-7.53 years). As in 
1971-72, eleven of the district's thirteen most predominantly white 
(less than 5% minority) elementary schools had staffs with greater 
than average experience levels (ranging from 10.86-16.64 years). A 
similar disproportion existed at the high school level as well.—  

The Board's analysis, SB 807, reflects two significant 
differences in teacher experience levels. First, it includes all 
instructional staff, rather than teachers in the four categories 
examined by plaintiffs. Second, it reflects the termination of 
over 250 faculty members in 1976, a disproportionate number of whom 
were less experienced teachers assigned to Southwest Yonkers 
schools, Tr. 2569 (Guzzo); Tr. 4578-79 (Robitaille); GX 774,-775,

3



and the resulting reassignment of more experienced teachers to 
these schools.

While the overall teacher experience levels increased as 
a result of the 1976 staff terminations, the disproportion in 
relative staff experience continued. In 1976-77, all seven of the 
district's predominantly minority elementary schools had staffs 
with below average experience levels, with four of them maintaining 
staffs with under ten years average teacher experience (versus 12.3 
years districtwide average). All three Southwest Yonkers middle 
schools had staffs with less than average experience (range: 8.3- 
9.8 years), while three of the other four middle schools in the 
district had staffs with greater than average experience levels 
(range: 10.8-13.6 years). A similar pattern existed at the high
school level as well.

By 1979-80, the relative imbalance in teacher experience 
levels, and resulting impact on educational opportunity, had been 
substantially reduced. Although the pattern at the elementary 
school level was similar to that of prior years —  again, all seven 
of the district's predominantly minority elementary schools had 
staffs with less than the districtwide average experience —  the 
range of average teacher experience at these schools had increased 
to 9.9-13.4 years (as to compared to 14.2 years districtwide 
average), a significant increase from the 4.75-7.53 years range of 
four years earlier. In addition, the imbalance in teacher
experience was even smaller at the middle school level, and was 
essentially non-existent at the high school level. Thus, while
imbalances persisted at lower grades, the marked increase in



absolute experience levels at predominantly minority schools 
reduced the problems associated with the imbalance in experience 
levels of earlier years, when both imbalance and significantly 
greater inexperience (in absolute number of years) among teachers 
in Southwest Yonkers schools combined to create more significant 
disparities in teacher experience levels among the district's 
public schools.

The overall trend in teacher experience levels, a trend 
recognized by school officials and Board members, Tr. 4614-15 
(Robitaille) ; Tr. 5039 (Jacobson); Alioto Dep. 48; Schainker Dep. 
110; ^  also Tr. 4065 (Sobel) , was caused by a variety of
interrelated factors. The primary source of the disparity was the 
teacher transfer provisions of the district's collective bargaining 
agreements with the Yonkers Federation of Teacher, the teachers' 
union. Under these agreements, which have been in effect since 
1969, teachers presently employed in the school district were 
afforded the right to apply for a staff vacancy, on a seniority 
basis, before the Board could hire additional staff from outside 
the district to fill the position. This provision has resulted in 
a general movement of more experienced teachers from West Yonkers 
to East Yonkers schools, a trend which was established almost 
immediately after the implementation of the seniority transfer 
provision in 1969. As both Board members and teachers themselves 
recognized, this west to east movement was caused primarily by the 
generally superior reputation of East Yonkers schools, a reputation 
created in part by smaller class sizes, superior physical 
conditions, and the "easier" teaching conditions in those schools.



This phenomenon was also attributed to a concomitant "burnout" 
among West Yonkers teachers, caused largely by the general absence 
of the aforementioned conditions in Southwest Yonkers schools. As 
a result, staff openings were created in Southwest Yonkers schools 
and were generally filled by newly hired teachers with less 
experience than other teachers in the district.

Plaintiffs do not contend, and we do not find, that 
experienced teachers are necessarily or inherently more capable 
than new teachers. Indeed, in Southwest Yonkers schools, some 
principals preferred to have younger teachers on their staff 
because of their flexibility, receptivity to change and educational 
innovation, and the "new blood" which these teachers brought to 
their respective schools. Tr. 11,636-38 (Leahy); Tr. 12,589
(DiChiaro); Tr. 13,472 (Steinberg). However, both Yonkers school 
officals and educational surveys performed for the school district 
recognized that, as a general matter, a balance of experienced and 
inexperienced teachers was desirable from an educational standpoint 
and the acknowledged lack of such a balance among the district's 
schools (elementary schools in particular) was a contributing 
factor to the inequality of educational opportunities among the 
district's schools. Tr. 4615 (Robitaille); Tr. 13,232 (Dodson); 
Alioto Dep. 47-48; GX 41, at 40; 587. While this lack of overall
balance in teacher experience was ameliorated somewhat in recent 
years by the systemwide increase in teacher experience levels, the 
disparity in experience levels prior to that time served to deprive 
Southwest Yonkers students of a level of educational opportunity 
available elsewhere in the district. And as with the teacher



assignment practices which led to the disproportionate presence of 
minority teachers in Southwest Yonkers schools, SCHOOLS IV.E 
infra, the Board did little in the early to mid-1970's to alter the 
often-signifleant disparities in teacher experience levels.

Staff turnover, particularly in certain Southwest 
Yonkers schools, also detracted from the quality of educational 
experiences provided to students. The generally more demanding 
conditions at Southwest Yonkers schools and the resulting eastward 
movement of more experienced teachers in the district served to 
increase the frequency with which Southwest Yonkers staff members 
were replaced. Specific instances of unusually high staff turnover 
occurred at School 10, where fourteen of the seventeen teachers 
originally hired by the Board in 1972 had left the school after 
only two years of operation. This turnover had a particularly 
negative impact on the quality of educational instruction at the 
school because of the need for, and resulting lack of, staff 
members who were specially trained in School 10's open education 
teaching methods, a factor recognized by School 10's first three 
principals, Tr. 4797-4803 (Jamieson); Tr. 11,633, 11,636-41
(Leahy); Tr. 13,320 (Cantor), and by the Board as well. Tr. 9838 
(Minervini) . The turnover among principals at School 10 was of 
similarly negative effect; in five years, the school was led by 
three different principals, each with their own distinct 
educational approach. Frequent turnover among principals in 
Southwest Yonkers schools existed in Commerce Middle School (three

3 3 0



principals during its three-year existence) and King Elementary 
School (three principals in its first four years) as well.

Again, not all staff turnover was without underlying
educational benefit: the determination of some Southwest Yonkers 
school principals to implement measures designed to eliminate 
staff-related educational inadequacies at particular schools 
contributed to the staff turnover at these schools. Schainker Dep. 
83-84; Tr. 4749-51 (Jamieson). Still, the existence of generally 
more frequent turnover at many of the district's disproportionately 
minority schools detracted from the educational opportunities 
available at these schools, a fact which was recognized by at least 
one Board member, Tr. 10,983 (Jacobson), and several school 
principals,. Tr. 4713 (Jamieson); Tr. 11,657 (Leahy); Tr. 12,975- 
76, 13,155 (Dodson), and which was a source of concern among
community members as well. GX 547 (School 25 PTA).

Teacher expectations epitomize the manner in which 
intangible and unquantifiable components of the educational process 
can impact upon student achievement and the educational atmosphere 
of a school. Schainker Dep. 246, 261; Tr. 4712-13 (Jamieson). 
While the record, particurlarly the documentary record of school 
principal evaluations and budget requests, reflects that many of 
Southwest Yonkers' school staff members were concerned with and 
dedicated to the educational welfare of minority students, some 
departures from this pattern existed and were recognized by several 
school officials and special task forces. A number of Southwest

331



Yonkers schools were afflicted at various times by attitudes among 
administrative or instructional staff that minority students were 
less capable of educational achievement, a condition which 
obviously impacted negatively on student achievement. Assistant 
Superintendent of Schools Stanley Schainker testified that 
particular problems of this sort existed at Schools 6, 18, and King 
elementary schools. Commerce and Longfellow Middle Schools, and 
Yonkers High School. Schainker Dep. 60-65, 78-82, 113-16, 143-49, 
251; GX 455. The low expectations or general lack of educational 
atmosphere at School 6 existed primarily during the late 1960's to 
early 1970's, and was recognized by parents and school officials. 
Tr. 4329 (Barrier);- Tr. 4821 (Jamieson), Tr. 5043-46 (Jacobson). 
The problems which Schainker noted at Commerce and Yonkers were 
consistent with the findings of task forces assigned to investigate 
educational conditions at the schools as well as the observations 
of community members. GX 559; Tr. 5240-42 (Morris).

Not all of the district's predominantly minority schools 
were similarily affected by discriminatory staff attitudes; the 
administrative and instructional staff at School 10 and Hawthorne 
Middle School, for example, were generally depicted as being 
generally devoid of similarly low educational expectations of their 
students. In addition, the more severe problems noted above, such 
as those at Schools 6 and 18, were generally rectified by school 
officials by removing those employees considered responsible for 
those conditions. Schainker Dep. 72, 74, 80-81. We are unable to 
conclude on the record before us that the discriminatory attitudes 
noted above were, in light of the district's recognition of and

3 3 a



attempts to ameliorate this problem, evidence of the district's 
implementation of a policy of intentional discrimination. Never­
theless, the evidence concerning teacher expectations, including 
the district's need to take the remedial steps described above, 
demonstrates an awareness of the educational problems created by 
segregated schools and of the adverse consequences on minority 
students.

3. Students
The quality of educational opportunities available to 

students in Yonkers public schools may also be measured in part by 
characteristics relating to the students themselves. One of the 
most troubling features of Southwest Yonkers schools is the 
unusually high turnover in their student populations. The high 
mobility of minority students in Southwest Yonkers was primarily 
the result of considerable demographic change in the area, caused 
in part by the City's urban renewal efforts and the concomitant 
displacement and relocation of Southwest Yonkers residents. 
Plaintiffs have submitted numerical evidence of districtwide 
student turnover for the 1975—78 period which unmistakably 
demonstrates the significantly higher student turnover in the 
district's predominantly minority schools. GX 815. This 
phenomenon was also the constant object of attention of principals 
and school officials in earlier years. School "Background 
Information" reports prepared by school principals highlight 
particularly severe instances of high student turnover: 500 
students entering or leaving School 19 in 1971-72, when its total

3 3 3



student enrollment was 669 (GX 539; Tr. 12,716 (DeFino)); 140 
students entering or leaving School 10 during its first year, when 
the school's total enrollment was 239 students (GX 506); 184 
students entering or leaving School 3 in 1974 (GX 518). See ai^ GX 
526 (School 7); Tr. 13,246-47 (DeFino) (School 18); GX 601 
(Franklin Middle School).

The impact of the high student turnover in Southwest 
Yonkers schools and the district's response to it are both 
troubling. It is difficult to overstate the disruptive effect of 
such turnover and the consequences for all students involved. Many 
school officials recognized the negative impact which the high 
degree of student turnover had on the educational process at 
Southwest Yonkers schools. Tr. 4762-64 (Jamieson); Tr. 5040, 10,925 
(Jacobson); Tr. 13,269 (DeFino); Schainker Dep. 247-48. This 
phenomenon was particularly disruptive in Yonkers since much of the 
student turnover consisted of movement between schools within the 
city itself, rather than in and out of the district as a whole. Tr. 
10,925 (Jacobson).

Although the demographic phenomenon of student turnover 
was largely beyond the school district's control, the Board did 
relatively little to alleviate the negative effects of student 
turnover. Until recently, attempts to achieve conformity among 
textbooks used in various elementary schools, particularily among 
geographically proximate Southwest Yonkers schools, were largely 
unsuccessful; such conformity was initiated in Southwest Yonkers 
schools only as late as 1978 or 1979. Tr. 4762 (Jamieson); Tr. 
13,269 (DeFino); Weiner Dep. 149. In addition, while school

334-



officials encouraged relocating parents to keep their children in 
the school at which they began the school year, no attempts were 
made to more formally restrict the movement of students among 
schools even where transfers involved (as they often did) movement 
between neighboring schools, such as between Schools 3, 10, 18, 19, 
and King. Tr. 4762-63 (Jamieson); Tr. 13,241-42, 13,268-70 
(DeFino). While these circumstances do not lead this Court to the 
conclusion that the Board's failure to adequately address the 
problem of student turnover was racially motivated, we have little 
doubt that its failure to do so, even where feasible, resulted in a 
significant impairment of the quality of education provided to 
students in predominantly minority Southwest Yonkers schools.

Many Southwest Yonkers secondary schools were also 
characterized by a disproportionately high number of student 
suspensions. School officials were concerned about the 
disproportionately high incidence of suspensions at a number of 
Southwest Yonkers secondary schools and the disproportionate number 
of minority student suspensions throughout the district's schools, 
and developed a disciplinary code in order to rectify this 
condition. GX 59-60; Tt. 13, 166-67 (Dodson). School officials 
recognized that certain schools, particularly Yonkers High School, 
suffered from an overemphasis on disciplinary, rather than 
instructional, aspects of the educational process, Tr. 4638 
(Robitaille) , and that disciplinary problems were in part the 
result of inadequacies in the educational programs at these 
schools. GX 604 (Hawthorne); Tr. 4727-28 (Jamieson) (Schools 6, 
10, 19). A related problem during the early to mid-1970's involved



the inappropriate length of disciplinary sanctions imposed at 
several Southwest Yonkers secondary schools, a problem which 
prompted protests by members of the black community and 
instructions by Superintendent Alioto to James Barrier, his 
community relations consultant, to ensure that disciplinary 
guidelines were adhered to by school principals. Tr. 4342-44 
(Barrier); GX 559.

An additional characteristic of most Southwest Yonkers 
schools is their generally more crowded conditions. Particularly 
since the 1976 closing of three of Southwest Yonkers' twelve 
elementary schools and the simultaneous elimination of the More 
Effective Schools (MES) program in which smaller classes were 
provided. Southwest Yonkers public schools have been significantly 
closer to full capacity than their East Yonkers counterparts. By 
the mid-1970's, the City's segregative pattern of subsidized 
housing site selection and construction had resulted in the 
addition of several § 236 family housing projects in Southwest
Yonkers, contributing to the steadily increasing minority student 
enrollment in the area. From 1970 to 1975, minority student 
enrollments in Southwest.Yonkers elementary schools (3,6,7,9,12, 
18,19,23,King) increased from 2,699 to 2,927 students, despite the 
fact that all but one (School 19) of these schools changed from K-6 
to K-5 during this period, and despite the fact that the decline in 
birth rates which occurred during the mid to late 1960's was 
beginning to have an impact on overall school enrollment. GX 126, 

2, 6. The increasing imbalance in school utilization was
recognized by the Board's Task Force for Quality Education by and

3 3 ^



Superintendent Robitaille and his staff, and became one of the 
foundations for the administration's Phase II reorganization plan. 
See SCHOOLS IV.F.3 infra. As result of the Board’s failure to 
adopt Phase II, this imbalance persisted, with notable segregative 
exceptions (School 6, Longfellow), up to the filing of this

'̂ 7action.—

4. Educational Programs and Resources
Considerable evidence has been introduced by both 

plantiffs and the Board concerning the nature, extent, and quality 
of educational programs and curricular offerings available to 
students at Southwest Yonkers schools. Briefly stated, the Board 
has attempted to establish that the provision of federally and 
locally funded and Board-created special remedial programs at 
Southwest Yonkers schools is evidence both of the equality of 
educational opportunities in the district as well as the absence of 
intentionally created inequalities (to the extent that inequalities 
do exist) . Plantiffs have sought to establish that despite the 
additional resources provided by the Board, curricular inequalities 
nevertheless exist in Southwest Yonkers schools and that additional 
resources have failed to ameliorate the detrimental impact of the 
other inequalities in educational opportunities and resources 
provided by the Board.

Since the mid-1960's, the Board has annually received 
federal funds specifically designated for schools which have low 
achievement levels and are located in low-income areas. These 
federal programs provide eligible schools with monetary resources 
over and above the school's annual budgetary allotment, and have



resulted in additional remediation and enrichment programs, 
additional staffing, and in some instances additional equipment and 
supplies, in predominantly minority Southwest Yonkers schools. 
Elementary schools have been the primary recipients of these 
additional resources.

During the 1960's, the primary federally funded remedial 
education program in Southwest Yonkers schools was Project Orbit. 
The purpose of Project Orbit was to provide students in eligible 
schools with additional remedial instruction in reading and math. 
Project Orbit provided eligible schools with reading and math labs, 
additional books and supplies, and additional staff to complement 
regular classroom instruction and to provide more individualized 
instruction to participating students. During the late 1960's, 
Project Orbit also provided funds for summer programs in reading 
and science for students in Project Orbit schools.

Project Orbit was replaced in the early 1970's by 
federally funded Title I programs. See 20 U.S.C. § 2701 et seq̂ . 
Like Project Orbit, Title I funding resulted in additional reading 
and math programs and individualized instruction at schools with 
low-achieving, low-income, students. At various times during the 
1970* s. Title I funds were used to establish a number of other 
educational programs geared toward students in Southwest Yonkers 
predominantly minority schools. SB 746. For example, a bilingual 
program for the district's hispanic students was provided at 
Schools 10, 18, and 19 and at Hawthorne Middle School (the
district's most heavily hispanic middle school). Tr. 11,183-84

t'̂ /(Guerney).—
A variety of other locally funded supplementary



educational programs were established at Southwest Yonkers schools 
during the 1960's and 1970's. The More Effective Schools (MES) 
program, for example, provided students at Schools 6, 10, and 12
with an opportunity to receive more individualized supplementary 
instruction from additional staff, until the elimination of this 
program in 1976 as part of the school district's budget reductions. 
Tr. 10,981 (Jacobson); Schainker Dep. 110; SB 653. Programs for 
high-achieving students were also established at a number of 
Southwest Yonkers schools, for example, the High and Wide program 
at School 18 and the AIM (Alternatives for Instructionally 
Motivated) program at School 10. Tr. 11,191-92 (Guerney). During 
the late 1960's to mid 1970's, the district established a Home With 
Books reading program (later called Reading Improvement Service 
Everwhere, or RISE) in School 7 in which volunteers from the 
community worked with students in an effort to improve their 
reading skills. The program was highly regarded by Superintendent 
Mitchell and was eventually extended to eleven schools in the 
Southwest Yonkers area. Tr. 13,347-51 (Pistone); SB 89.

The infusion of additional resources into Title I schools 
was not a complete panacea for all the educational and curricular 
difficulties which existed in Southwest Yonkers schools. A number 
of elementary schools still suffered from inadequacies in the 
quality and extent of instructional materials which were available. 
Tr. 13,500 (Steinberg); P-I 19-33 (School 19); GX 475, 476 (School 
6), GX 526 (School 7). While these inadequacies were not universal 
in nature —  King Elementary School, for example, was recognized as 
having a wealth of quality instructional materials and supplies



(Tr. 12,721 (DeFino)) —  a review of the numerous budgetary
requests and school descriptions in evidence reflects the generally 
more serious and frequent nature of these particular inadequacies 
at Southwest Yonkers schools. The open school educational program 
at School 10, though designed, as an innovation in educational 
instruction which would improve the prospects for racial
integration at the school, instead was beset with a number of
difficulties, including the loss of its originally planned
recreational space and the frequent turnover of its instructional 
and administrative staff, which detracted considerably from the 
quality of the educational opportunities available at the school. 
These difficulties were not only perceived by parents in the 
community, who resisted the potential reassignment of their 
children to School 10, but were recognized by school officials as 
well. Tr. 4620-26 (Robitaille); Tr. 4777-84, 4788-94 (Jamieson); 
Tr. 5007-08 (Jacobson). In addition, the remedial programs 
provided at Southwest Yonkers schools did little to alleviate the 
inequalities in school facilities, staff experience and turnover, 
and student mobility, all of which impacted on the quality of 
educational opportunities, including special remedial programs, 
available at these schools. The record supports the conclusion 
that the Board did not deliberately fail, for partly racial 
reasons, either to provide remedial or other special instructional 
programs or to fairly allocate its programmatic resources among the 
district's white and minority schools. Cf. Berry v. Benten Harbor, 
supra, 442 F.Supp. at 1306. The record is also consistent, 
however, with the conclusion reached by Board members Jacobson and



Siragusa, as well as Assistant Superintendent Schainker, that 
Southwest Yonkers schools were educationally inferior despite the 
additional programmatic resources that were infused into those 
facilities. Tr. 5035, 10,959-61 (Jacobson); Schainker Dep. 106- 
,10; Siragusa Stip. II 3.

The additional resources provided by the Board at Title I 
schools also did not cure the educational program deficiencies at 
West Yonkers secondary schools. Commerce and Hawthorne Middle 
Schools both suffered during the early to mid-1970's from 
inadequacies in their reading programs, a problem which a 1972 New 
York State Department of Education study found to exist in a number 
of Southwest Yonkers schools, GX 499, at 43,700 (finding "serious 
unevenness" in quality of reading programs, with ineffective 
programs at inner-city schools), and prompted Superintendent Alioto 
to make the improvement of reading programs and reading achievement 
levels the educational priority of his superintendency. The 
Commerce reading program was considered the worst in the district 
partly because of teacher ineffectiveness, GX 564; Tr. 13,312 
(Cantor), and led, along with other instructional and facility- 
related problems, to the creation of a special task force to 
investigate and develop solutions for the various educational 
problems at the school. GX 559, 561. While some modest
instructional improvements (for example, a program for gifted 
students) were made during Commerce's last year in operation, the 
school was generally regarded by school officials as an 
educationally troubled school throughout its brief three—year 
existence. Hawthorne also suffered from teacher-related

34'



inadequacies in its reading program and a lack of advance subjects 
available at other middle schools, two problems which contributed 
to the school's poor image among school officials and community 
members alike. Tr. 13,501-04 (Steinberg); GX 601. Once again, 
school officials made an effort to implement corrective measures 
for educational problems similar to those which had existed at 
Commerce. Tr. 12,687-90 (DiChiaro); GX 604. Efforts were made to 
improve instructional and programmatic offerings at the school, for 
example, the Plus Program, a remedial reading and math 
instructional program; an honors foreign language program; a 
Regents algebra course for gifted children; and Target Success, a 
human relations program at the school. Tr. 12,621-23. These
efforts have been followed by a notable improvement in the
achievement levels at the school.

Similar disparities in educational programs have existed 
among the district's high schools as well. Roosevelt High School 
has long been considered a high school of high educational quality, 
with Lincoln High School in Southeast Yonkers also enjoying at one 
time a reputation as an academic "elite" school. Tr. 5061 
(Jacobson); Tr. 10,991-92; Jungherr Dep. 8; Natella Dep. 63-64; 
Schainker Dep. 96-97. These reputations have developed not only as 
a result of the quality of the educational opportunities available 
at these schools but also as a consequence of the significant 
program inadequacies at the district’s two West Yonkers high
schools.

The educational problems afflicting Gorton High School, 
discussed elsewhere in these findings, see SCHOOLS IV.F.2 infra,

3 4 a



stemmed in significant part from the inferiority of its non- 
academic, non-occupational "general" program. While the race- 
related disturbances of the late 1960's and early 1970's subsided 
by 1974 or 1975, both the causes and consequences of these 
disturbances have survived to a certain extent. GX 598. The 
district has made some modest efforts to improve the educational 
opportunities at the school: auto and industrial arts programs
were developed as a result of the 1973 Reorganization Plan; a 
three-year (1973-76) National Humanities Foundation (NHF) grant 
expanded cultural opportunities and increased individualized 
instruction at the school, Tr. 13,532-35 (Richards); SB 822; and 
by 1978 Gorton offered the full range of Regents and advanced 
placement courses available at the district’s East Yonkers high 
schools. Stipulation of the Parties Concerning Course Listings
at Roosevelt, Lincoln, Gorton, and Yonkers High Schools During 
1978-1979 School Year. Nevertheless, the rejection of the NYU 
Report's more comprehensive reform proposals (proposals based in 
part on the inadequacy of Gorton's general program £ee SCHOOLS 
IV.F.2 infra) and the remaining inequality in some course offerings 
(particularly English and.social studies electives), along with the 
previously discussed disparities in educationally related 
characteristics of the district's high schools, have resulted in 
the perpetuation of Gorton's comparatively less favorable status as 
an educational institution.

Yonkers High School has also suffered from similar 
inadequacies in its educational program. In the late 1960 s, the 
inadequacy of the school's general program was protested by the

343



Yonkers PTA and was recognized by school officials as well. GX 
619 , 645; Tr. 2445-46 (Guzzo) . The school also suffered from a 
high rate of teacher absenteeism and what school officials 
characterized as general staff ineffectiveness. GX 621. These 
problems, combined with the continued use of the inadquate Linden 
Street facility pending the long-awaited construction and 
completion of the new Yonkers High School building, resulted in 
students receiving a generally less adequate educational experience 
than was available at East Yonkers high schools.

In September 1973, ninth grade students from Hawthorne 
and Longfellow Middle Schools were reassigned to Yonkers High 
School in accordance with the district's 1973 grade reorganization, 
thus increasing the already substantial overcrowding at the school. 
Becasue of the overcrowding and the infeasibility of transferring 
students to the district's other similarly overcrowded high schools 
(Lincoln High School in Southeast Yonkers was approximately 263 to 
365 students above the capacity figure used in the NYU Report), the 
new Yonkers High School was opened February 1974, prior to the 
completion of the building's construction. Tr. 12,899-901
(Dodson).

The high school's educational problems did not disappear 
after the opening of the new Yonkers High School facility. In 
addition to the school's curricular inadequacies, the district 
initially encountered significant administrative difficulties with 
the new but unusually large facility, leading to student 
disturbances both inside and outside the school. GX 624-626. 
Emphasis was placed on maintaining discipline, with a concomitant

2)44-



failure to develop adequate educational programs for students at 
the school. Alioto Dep. 110; Tr. 5240 (Morris). Even disciplinary 
order was somewhat lacking due in part to the reluctance of 
teachers to discipline male black students. Schainker Dep. 116-17, 
252-53; Tr. 2457—58 (Guzzo); GX 637. Instructional and curricular 
inadequacies were recognized by several school officials as a 
significant problem contributing to the distruptive atmosphere at 
the school. See Alioto Dep. 50-51; Tr. 2460-61 (Guzzo); GX 627.

The curricular and administrative difficulties at 
Yonkers High School lead to the creation of a special task force in 
October 1974. After working for several weeks on a full-time basis 
at the school in an effort to address these problems, the task 
force concluded that the school suffered from significant 
inadequacies in its organizational structure, its teaching staff 
and guidance department, and its instructional program. GX 637. 
As a result of the task force's evaluation of the school's 
operations, a new organizational structure was created with overall 
administrative responsibilities delegated to a coordinating 
committee comprised of the school's principal and three members of 
the district's central administrative staff. GX 628. Dr. Edward 
Vollbrecht, Director of Secondary Education and a member of the 
coordinating committee, also acknowledged the need to address the 
curricular deficiencies at the school. GX 631 ("Major problem is 
in course offerings not administrative organization of school."). 
The aforementioned difficulties were followed by a significant 
decrease in Yonkers High School's white student enrollment and 
hence an increase in its percentage minority enrollment. GX 64;

3 4 S



see also GX 624.
While the initial organizational difficulties associated 

with the opening of the new facility subsided, other educational 
and curricular inadequacies persisted throughout the 1970 s. 
During the late 1970's, the school's principal, Joesph Farmer, 
repeatedly noted the student management problems at the school, 
including disciplinary and mobility-related problems and high 
teacher absenteeism, the latter of which led to the use of the 
library as a holding facility for otherwise unsupervised classes. 
In addition. Farmer recognized the continuing need to improve the 
curricular offerings at the school, including the expansion of 
occupational education alternatives for students who were either 
uninterested in or incapable of attending Saunders. GX 632, 634, 
635; see also Tr. 4638 (Robitaille). By 1980, at which time the 
school had become predominantly minority in its student enrollment 
and continued to be disproportionately minority in its teaching 
staff, the school's program offerings had improved, with
occupational educational and industrial arts courses substantially 
comparable to those available at other high schools in the 
district. Nevertheless,.Yonkers High School's reputation in the 
community has remained one of educational inferiority as compared 
to the district's other high schools. Hicks Dep. 59; Tr. 5308 
(Frauenfelder).

5 . Integration and Educational Opportunity
The disparities in educational opportunities provided in 

Yonkers public schools have had two significant race-related

3 4 ^



consequences. First, the disparities in the quality of educational 
programs and facilities have combined with the school system’s 
racial imbalance to reinforce the already existing residential 
segregation in the city. The link between the quality of education 
at particular schools in Yonkers and residential housing choices is 
well-established: this relationship was recognized by parents, GX
203, 276, and principals, GX 551, was testified to by realtors, Tr. 
2744-49 (Downes); Tr. 11,773-74 (O'Keefe), and even affected the 
housing choice of the 1975 Acting Superintendent of Schools. 
Jungherr Dep. 8. Cf. Higgins v. Board of Education of Grand 
Rapids, supra, 508 F.2d at 788. Similarly, the link between the 
racial identiflability of a school and the residential segregation 
of the surrounding neighborhood has been recognized by both courts 
and City officials. See SCHOOLS V.A, V.E.l infra. The relative 
inequality in educational opportunities available at Southwest 
Yonkers predominantly minority schools has contributed to the 
identification of minority schools in Yonkers as educationally 
inferior schools, with the two characteristics becoming virtually 
inseparable. This confluence of racial identiflability and 
relative educational opportunity has served to reinforce the 
segregative demographic patterns which have evolved in the City.

Second, the equalization of educational opportunites and 
the alleviation of racial imbalance in Yonkers public schools were 
not unrelated goals. Rather, as racial imbalance worsened and 
educational disparities persisted, various school officials 
recognized that the elimination of the former was an important step 
in eliminating the latter. The value of racial integration was not

34-1



bsssd solsly on ths socisl snd ©duc3tiori3l bsn©fits to b© dsriv©d 
from th© physic3l juxt3 position of whit© 3nd minority stud©nts, or 
th© "melting pot" 3 sp©ct of such integrstion, e.g. , Tr. 4072 
(Sobel); Tr. 5449-51 (Sirsguss); GX 892 (1972^Operstion Outr©3ch 
report by Bo3 rd heelth educ3tion employees noting existence of 
significent reciel prejudice emong students in 3ll-white end ell- 
bl3 ck schools end ebsence of such prejudice 3t School 5 (14%
minority). School 23 (17% minority), end School 24 (24% minority), 
three of the district's four most rscislly bslsnced elementsry 
schools). Instead, the disparities in school facilities, student 
enrollments (as a percent of capacity), teacher experience levels 
and expectations, and secondary school curricular offerings were 
problems which were likely to persist absent some desegregative 
technique which would have helped to reduce or eliminate some or 
all of these disparities. Consistent with these race-related 
considerations, three school superintendents, the Board's Task 
Force for Quality Education, New York State education officials, 
and other Yonkers school officials concluded that the equalization 
of educational opportunities and the elimination of racial 
segregation in Yonkers public schools were interrelated goals. Tr. 
2487 (Guzzo); Tr. 4065-73 (Sobel) ("had the schools been
desegregated many of these conditions [disparities in physical 
facilities, staff experience, and curriculum completion, and lack 
of interracial contact] would have been alleviated ); Tr. 4325 
(Barrier) (re Superintendent Alioto); Tr. 4671-77 (Robitaille); GX 
123, at 2 (same)("quality education for all children ... cannot be 
accomplished without integration"); Tr. 5203 (Morris)(re

3 4 S



Superintendent Mitchell) (recalling statements by Superintendent 
Mitchell that Yonkers children could not be getting equal education 
as long as they were segregated); Tr. 5385-90 (Tobin); Tr. 5450-52 
(Siragusa) (”[S]eparate and equal ... is [not] a possibility in 
our particular case. I am not talking about any place anywhere 
else."); Tr. 12,977-78 (Dodson). It is in this light that the 
Board's repeated failure to implement educational and desegregative 
school reorganization plans must be evaluated.

C. Vocational Education; Steering and Screening of M inority 
StudenTs

Prior to 1974, the Yonkers School District operated two 
specialized high schools, the High School of Commerce and the 
Saunders Trades and Technical High School (Commerce was closed in 
1974). Until 1980, Saunders was located in the Getty Square area 
in the heart of downtown Southwest Yonkers. Commerce was located 
several blocks north of Saunders, also in Southwest Yonkers. The 
enrollment at these schools was and is not limited by attendance 
zone boundaries but is districtwide; students from all over the 
city are permitted to attend the schools. Nevertheless, Saunders' 
geographic location has contributed to the fact that most of its 
students lived in West Yonkers. GX 645; P-I 45-156.

Saunders is generally regarded as a school for students 
who are interested in entering a particular trade or technical 
field. Although until recently the enrollment at Saunders was 
exclusively male, the school is currently open to members of both 
genders. The Saunders curriculum consists of a variety of 
vocational and technical course offerings, in addition to

3 4 1



traditional academic subjects. Vocational, or industrial, courses 
include auto mechanics, carpentry, electricity, machine shop and 
printing; technical course offerings include architectural design 
and technical electricity. GX 680. The Saunders program is 
designed to prepare students for college education as well as 
provide them with skills which will enable them to move directly
into the labor force upon graduation.

The High School of Commerce, whose student population was 
largely female, offered a variety of specialized commercial or 
business courses, such as bookkeeping, clerical practice, office 
machines, and secretarial practice, as well as courses in 
cosmetology, dressmaking, food trades and retailing.

During the 1930's to 1950's, the reputation of Saunders 
and, to a lesser extent. Commerce, was unfavorable. Saunders was 
known as the "dumping ground" for students who were perceived to be 
generally less capable of performing in a normal academic program. 
Tr. 4965 (Jacobson); Alioto Dep. 36; Natella Dep. 10-11. A 1934 
study of the Yonkers public schools by Teachers College concluded 
that Saunders was used as a school for academically retarded pupils 
who were assigned to junior high school industrial courses with the 
tacit understanding that they would attend Saunders. SB 12, at 
235. This reputation was fairly well known by both students and 
school officials in Yonkers as a matter of general reputation and 
via complaints by black parents to school officials.

A number of plaintiffs' witnesses testified that, as 
black students in Yonkers during this period of time, they were 
encouraged by guidance counselors to enroll in the vocational

35o



programs at Saunders and Commerce. According to Dr. Henry 
Williams, Saunders was recommended based on its less academically 
demanding program and because it would make black students more 
readily employable, Tr. 2640-41 (Williams), an explanation which 
was given in support of attendance at Commerce as well. Tr. 3519— 
20 (Ross). In some instances, students were encouraged to attend 
Saunders or Commerce even though the student had expressed a 
preference for an academic high school program. Tr. 2675-79 
(McRae); Tr. 3516-24 (Ross). A 1959 report by the Board's 
Advisory Board on Vocational Education also described a process of 
"[p]sychological bludgeoning" of students whereby they were told 
that they would be left back unless they agreed to transfer to one 
of the district's vocational schools. GX 663, at 5; see also 
Natella Dep. 10-11. The report also noted that hard-to-teach 
students would be "unloaded" at Commerce in a similar manner. Id. 
at 6. A number of students were able to avoid enrollment in an 
undesired vocational program only after their relatives intervened 
on their behalf. Tr. 2679-80 (McRae); Tr. 3521-24 (Ross).

Although racial enrollment data for Saunders and Commerce 
is not available for years prior to 1967, the testimony at trial 
suggests that the schools' minority enrollment was substantial. 
For example, Winston Ross recalled that during the 1950's a 
significant number of Runyon Heights students attended Saunders or 
Commerce rather than the virtually all-white Roosevelt High School 
in East Yonkers. Tr. 3667; see also Tr. 2683-84 (McRae). Several 
witnesses also testified that this "steering" process was 
experienced by them personally and by their fellow black

351



classmates. Tr. 2639-43 (Williams); Tr. 2683-85, 2709-10 (McRae). 
Dr. Williams recalled that this persistent encouragement of 
Saunders' trade programs to black students was at variance with the 
advice given to academically undistinguished white students at that 
time. Tr. 2651-52, 2665-67.

One Board witness, Joseph Guerney (who is white), 
testified that he also was encouraged by a guidance counselor to 
attend Saunders because of his siblings' prior attendance at the 
school and his family's purported financial inability to send him 
to college. However, other white witnesses testified that, as 
white students attending school at or about this time, they either 
did not meet with school officials prior to entering academic high 
schol programs or were not advised to attend the non—academic high 
schools for reasons of, among others, prior academic achievement or 
family tradition. Tr. 4442 (Radko); Tr. 4966 (Jacobson). Thus, 
even if "steering" of students to Saunders and Commerce was not 
exclusively based on a single, racial criteria, it appears from the 
record that black students were fairly frequently the subjects of 
such treatment and experienced a form of counselling not typically 
experienced by white students. No statistical data was introduced, 
and apparently is not available, concerning the number of students 
who were affected by this process or the extent of its dispropor­
tionate impact on blacks. However, the testimony of then-students 
of Yonkers public schools suggests that blacks were the more
frequent recipients of such treatment.

A similar process of steering black students also
occurred with respect to particular programs within individual high



schools themselves. One practice involved advising or encouraging 
students to enroll in a high school's general, or social-civic, 
program, a program geared generally for non-college bound students, 
instead of the regular academic, or Regents, program. Again, 
although statistical information is not available, the testimony 
suggests that blacks were enrolled in greater numbers in the 
general, rather than the academic, program. Tr. 2622-33 (Mareno). 
Several witnesses recalled their experiences as black students 
being advised to enroll in the social—civic program at particular 
schools. Tr. 2595 (Mareno); Tr. 2641-43 (Williams); Tr. 4300-01 
(Barrier); Peace, Jr. Stip. M  7-9. These students were either 
not advised of the alternative of enrolling in the academic 
program, Tr. 2597-98 (Mareno), or were encouraged to take the 
social-civic program despite stated preferences for the academic 
program. Tr. 2644-65 (Williams); Tr. 4300-01 (Barrier). In one 
instance, black students were forced to wait in the principal's 
office at Roosevelt for a number of days and were encouraged to 
attend Gorton High School before being allowed, with the help of 
parental intervention, to attend classes at Roosevelt. Tr. 2724 
(Downes). Once again, black students often were permitted to 
enroll in the academic program only after the intervention of their 
parents on their behalf. Tr. 2645 (Williams); Tr. 4301 (Barrier). 
Peace, Jr. Stip. HH 7-9. Black parents testified that their 
children encountered similar impediments as well. Hamilton Dep. 
69-71.

Many of the aforementioned witnesses have gone on to 
achieve considerable success in their career endeavors. While-this

353



may, at first blush, indicate that their experiences as black 
students in the 1930's through 1950's were educationally 
inconsequential, a more persuasive inference is that their success 
was achieved in spite of, rather than because of, the 
aforementioned "steering" which they experienced as students in the 
Yonkers public schools. In any event, the extent of their 
individual achievements in no way ameliorates the discriminatory 
treatment to which they were subjected during this period of time.

The probative force of these practices, in terms of 
current segregative impact, is somewhat limited, particularly since 
Saunders' reputation as a "dumping ground" has been long discarded, 
and the High School of Commerce has since been closed. The 
"steering" of blacks into general and vocational programs is 
nevertheless relevant insofar as it is evidence of the early 
existence of a pattern of discriminatory treatment to which 
minority students have been exposed over time in the Yonkers public

\ ‘-yschools
The inferior reputation of Saunders and Commerce was 

fairly dramatically altered when, in 1958, the Board decided to 
establish entrance requirements for vocational programs at these 
schools. According to the standards eventually adopted by the 
Board in 1962, students were to be accepted into Saunders and 
Commerce up to the available capacity of the schools' facilities. 
In the event a particular program had more applicants than its 
available capacity would permit, students were to be selected based 
upon a ranking determined by the receiving school. This ranking 
was based on a student's grades, achievement and aptitude test

354



scores (with particular emphasis on math and reading scores), and 
the recommendations of guidance counselors. Students who were 
unable to secure admission to Saunders at the ninth grade level, 
during which time Saunders students would participate in an 
-exploratory program at the school, would be invited to reapply the 
following year.

The implementation of screening standards for Saunders 
and Commerce was not universally supported. Specifically, the 
Yonkers High School PTA expressed its concern to Superintendent 
Wynstra that former Saunders and Commerce students who failed to 
gain admission to these schools and would instead be attending 
Yonkers High School would be "discriminat(edl against ... by sheer 
neglect" because of the lack of adequate programs at the school. 
GX 647. Wynstra assured concerned community members that adequate
provisions would be made for such students. GX 653.

The Saunders admission process was essentially two- 
tiered. Initially, guidance counselors at the district's junior 
high schools would solicit students who were interested in the 
Saunders program by taking them on a tour of the Saunders facility. 
Applications were then made available to students interested in 
applying to any of Saunders' vocational programs. After applica­
tions were submitted by interested students, guidance counselors 
would gather the aforementioned academic and testing information 
concerning each applicant. The counselor would sometimes, though 
not always, include a personal recommendation for the applicant. 
The application did not specifically indicate the applicant's race, 
but included the applicant's name, address, junior high school and

2)35



guidance counselor's personal recommendation.
The completed application was then forwarded to Saunders 

for a determination as to admittance. Saunders' guidance
counselors made initial recommendations regarding admissions based 
on the aforementioned information and, in some rare instances, 
personal interviews. The principal of Saunders maintained
authority to make the final decision as to admissions. Students 
were notified of the admission decision and, if rejected from the 
ninth year program, were permitted to reapply the following year.

At Saunders, admission decisions were generally made 
along the lines noted previously, i.e. , an examination of program 
capacity, the number of applicants, and each student's academic 
qualifications and individual guidance counselor recommendations. 
There was also testimony that indicated that the admissions process 
was somewhat more flexible than it appeared on paper. Part of the 
evaluative process engaged in by school officials was an inquiry 
into an applicant's behavior. Specifically, junior high school
guidance counselors were instructed that students who were 
considered disciplinary problems were inappropriate candidates for 
admission to Saunders. Tr. 13,389, 13,413-16 (Zaroff); Alioto
Dep. 35; Schainker Dep. 32. In addition, some students were
accepted on the basis of "special circumstances" or political 
influence; Angelo Paradiso, Saunders' principal from 1964 to 1973, 
would simply direct Saunders guidance counselors to admit such 
students in addition to those who had already been selected.

The objective criteria relied upon by guidance counselors 
at Saunders were less than well-suited to the task for which they

3 5 G



were used. School officials relied upon a variety of standardized 
tests, such as the Differential Aptitude Test, the Stanford 
Achievement Test, and the Otis-Gamma IQ Test, which were found in 
1972 and 1973 to be outdated or otherwise considered inappropriate 
as measuring devices of student ability. GX 517, 662. Although 
the use of some of these tests was discontinued in the late 1960's 
to early 1970's, at least one (the Stanford Achievement Test) was 
apparently still in use as late as the 1977-78 school year. GX 661. 
Notwithstanding the use of these objective screening standards, the 
academic capabilities of Saunders* students were by no means 
entirely consistent with the school's reputation as a superior 
educational institution. During the late 1970*s, students at 
Saunders were recognized as suffering from serious deficiencies in 
both reading and math skills, a problem which was addressed by 
remedial instruction. Tr. 12,838-39 (Marra). And although the 
aforementioned screening criteria were invoked only when the number 
of applicants exceeded Saunders’ program capacity limits, the 
school’s favorable reputation made the admissions process a fairly 
competitive one. The evidence thus suggests that the criteria used 
for selecting applicants to Saunders were in fact relied upon in 
making admission decisions. GX 674 (approximately 60% of 
applicants accepted from 1971-73); Alioto Dep. 101-02.

The late 1960’s and early 1970's were also marked by 
increasing dissatisfaction with the Saunders facility itself and a 
rapidly increasing enrollment at the now highly regarded school. 
The physical inadequacies of the school, by far the oldest and 
smallest high school in the district, had long been recognized by

3 5 ^



school officials. These inadequacies contributed to a 1968 
proposal to close Saunders and Commerce and to construct a new 
facility for the district's occupational, vocational, and technical 
programs. GX 645, at 53-55, 165-67. In 1973, the district again 
considered proposals to close both Saunders and Commerce and to 
distribute their programs throughout the district's other high 
schools. GX 115. In March 1973, the Board decided to close
Commerce and decentralize its occupational programs; on the other 
hand, it decided to maintain Saunders as a self-contained facility 
and to expand its occupational course offerings to include some of 
Commerce's technical programs. GX 114. By 1974, school and City 
officials were actively engaged in finding a suitable site for the
location of a new Saunders facility.

The capacity of the Saunders facility was recognized as 
increasingly inadequate. The facility was considered capable of 
enrolling anywhere from 600 (NYU Report) to 875 (Engineering 
Department) students, or approximately one-half the capacity of 
Gorton, the district's smallest regular high school. Despite the 
increasing popularity of the Saunders program, no physical 
additions were made to the facility after 1964. GX 644; Tr. 13,408 
(Zaroff). Superintendent Alioto recalled that in the early 1970 s, 
the Saunders auditorium had been subdivided for use as additional
classroom space. Alioto Dep. 101.

Saunders' limited capacity, however, did not prevent a 
steady increase in its student population. In 1969-70, Saunders 
enrollment was 483; this figure increased steadily during the 
1970's, reaching a maximum of 831 in 1975-76 and remaining above

3 5 ?



800 students until just before the relocation of Saunders in 1980.
This increase in student enrollment during the early to 

mid 1970's was largely devoid of black students. While enrollment 
at Saunders increased by 155 students between 1971 and 1975, the 
number of black students rose by only two. GX 64. During this 
period, the disproportionately low number of blacks at Saunders 
became increasingly evident. In 1969-70, Saunders was 2.7% black 
(versus 9.1% districtwide high school average); in 1972-73, 
Saunders was 3.8% black (versus 11% average); by 1975-76, Saunders 
was 4.2% black (versus 16.1% average). This disproportion was even 
more noticeable when compared to the geographically proximate West 
Yonkers high schools: in 1972-73, Gorton and Yonkers were 21.3%
and 20.3% black, respectively; by 1975-76, the schools were 25.8%

. I "Vand 32% black, respectively.—
In addition to the above screening process, two factors

contributed to the disproportionately high number of whites and low 
number of blacks at Saunders. A large number (approximately 80%, 
according to Reginald Marra, principal of Saunders beginning in 
1974) of Saunders' white students came from the Southwest Yonkers 
area, and approximately one-third came from parochial schools in 
that area. The return of these students to the public school 
system, as well as the enrollment of public school students at 
Saunders, was due not only to Saunders' favorable reputation but 
also to the undesirability of attending either Yonkers or Gorton 
High School, two West Yonkers high schools with considerably higher 
percentage minority enrollments than Saunders and perceived to be 
educationally inferior to the district's other high schools.



Gorton was also experiencing race-related disturbances at that 
time, an additional factor leading to the increased enrollment of 
white Southwest Yonkers students in the Saunders program. GX 674.

Another reason for the low minority enrollment at 
Saunders related to the school's prior reputation in the community. 
According to Robert Dodson, school principal and administrator, and 
Herman Keith, Yonkers NAACP President and Advisory Council for 
Occupational Education— '̂ member, minority students were reluctant 
to enroll at Saunders because of the school's previous reputation 
as a dumping ground for minority students. Tr. 8522-23 (Keith); 
13,008-09 (Dodson). This problem was exacerbated by a lack (until 
recently) of affirmative recruitment efforts designed to attract 
more minority applicants to the school, and inadequacies in the 
procedures (again, until about 1977) for informing students of the 
status of their applications and for reminding rejected eighth 
grade applicants of the opportunity to reapply the following year.
GX 665, at 40,560; P-I 75-25, at 39,199.

Saunders' identifiably white character was also evident 
in its faculty and administrative staff. Between 1968-69 and 1975- 
76, Saunders never had more than two minority faculty members and 
was consistently below the districtwide average minority faculty 
percentage. During these years, Gorton and Yonkers High Schools, 
the district's two West Yonkers high schools, consistently exceeded 
the districtwide average for minority faculty. For example, in 
1974-75, at the height of Superintendent Alioto's minority faculty 
recruitment efforts, Gorton had ten minority faculty members (10.3% 
of its staff) and Yonkers had twenty-one (14.2%); Saunders had



only two (3.6%). In each year during the 1969-76 period, Yonkers 
or Gorton (or both) had at least one minority principal or 
assistant principal; Saunders had no minority principal or 
assistant principal during this period of time.

School officials were aware of and concerned about the 
fact that Saunders, located in the most heavily minority area of 
the city, was becoming an increasingly white school. Superinten­
dent Alioto recognized that the school's selection process 
"appeared to systematically exclude minority youngsters," Alioto 
Dep. 35/ a conclusion reached by other school district officials as 
well. Schainker Dep. 32-36; Tr. 5511 (Minervini). The limited 
presence of minorities at Saunders was coupled with the recognized 
inadequacies of occupational programs at the district's regular 
high schools, a problem which the district slowly began to address 
subsequent to its rejection of the 1972 NYU Report's more far- 
reaching proposals.

The High School of Commerce, on the other hand, did not 
suffer from similar disproportionality in its minority student 
enrollment. Although the selection process at Commerce was 
governed by substantiallysimilar admissions criteria, GX 655, 657, 
minority enrollment at Commerce was consistently higher than the 
districtwide average:



% Minority, % Mino:
Year Commerce All High

1967 12 9
1970 14 12
1973 19 16

Although evidence concerning the Commerce admissions process is 
scant, it is reasonable to infer from these figures that the 
Saunders admissions process was considerably more competitive and 
was influenced to a greater extent by the student behavior-related 
criteria described above.

During the early 1970's, limited efforts were made to 
increase the availability of occupational and vocational programs 
to minority students. In 1973, the Board voted to close the High 
School of Commerce and establish a limited number of occupational 
programs at other high schools in the district. Other, more 
comprehensive proposals, such as the NYU Report's recommendation to 
close Saunders and decentralize vocational instruction programs 
throughout the district's high schools, were rejected. In 
addition, simultaneous attempts were made to revise the admissions 
criteria for Saunders. In the early 1970's. Superintendent Alioto 
and Assistant Superintendent Schainker met with Angelo Paradiso, 
Saunders' principal, to discuss the lack of minorities at Saunders 
and the admissions procedures being used at the school. Paradiso 
refused to produce admissions information requested by Schainker 
and, according to Alioto, defended the admissions process as being 
primarily responsible for the increasingly favorable reputation of 
the school. Alioto Dep. 36; Schainker Dep. 32-33. No changes were



made in the admissions procedures, and Paradiso ultimately resigned 
in 1973 in part because of this dispute with Superintendent Alioto. 
Reginald Marra, Saunders' principal from 1974 to 1983, adhered to 
the admission standards used in prior years. Tr. 12,784-85, 
12,821-22 (Marra).

The controversy surrounding the disproportionately low 
minority enrollment at Saunders reached a head in the mid-1970's. 
In 1976, Bertram Wallace, Director of Occupational Education, 
sought detailed information on the admissions process at Saunders 
in an effort to determine whether vocational program opportunities 
could be expanded. In particular, Wallace was concerned with the 
expansion of such opportunities so as to include more minority 
students. Tr. 12,825-26 (Marra). Wallace's efforts coincided with 
the increasing concern of minority community members regarding the 
low number of minority students at the school. P-I 75-25, 75-27. 
Wallace was successful in obtaining substantially greater federal 
funding for vocational education programs than had been received 
previously by the school district. Alioto Dep. 146. According to 
Reginald Marra, however, no action was requested of or taken by him 
in response to Wallace's inquiries regarding minority student
enrollment at Saunders. Tr. 12,825-26.

In 1977, the Advisory Council for Occupational Education 
appointed a committee to review admissions procedures at Saunders. 
The committee, comprised of Nicholas D'Angelo, a Saunders graduate 
and Chairman of the Advisory Council, Hector Ghimenti, executive 
director of the Yonkers Human Rights Commission, and Herman Keith, 
was given the task of reviewing Saunders' admissions procedures in

3 G 3



part to insure that "selection be made in a fair, unbiased" manner.
GX 665. The committee’s report, id^, after noting the increasingly 
competitive nature of the Saunders admissions process and 
describing the procedures used for selection, concluded that 
students were selected on the basis of "merit only" with particular 
emphasis on reading and math scores. The report stated that
applicants for the ninth grade exploratory program were rejected 
largely because of space limitations but that most of the rejected 
applicants were accepted upon reapplying the following year. No 
findings were made regarding the disproportionately low number of 
minorities at Saunders; the only recommendation which specifically 
referred to minority students was that greater effort be made to 
increase reading and math scores, particularly at Fermi and 
Hawthorne, two middle schools with predominantly minority student 
populations (56% and 53%, respectively, in 1976-77).

The Board's efforts to improve the district's vocational 
education program culminated in the long-recommended closing of the 
old Saunders facility in 1979 and the relocation of Saunders' 
vocational programs to the newer and larger Burroughs facility, 
located in Central Yonkers, in 1980. This decision resulted in 
increased capacity for vocational and occupational education 
programs and a concomitant increase in minority enrollment in these 
programs. In 1976, Saunders enrolled 777 students, thirty-eight 
(4.9%) of whom were black; in 1980, ninety-nine (10.8%) of 
Saunders' 917 students were black. This increase in minority 
enrollment also coincided with increased recruitment efforts by 
school officials, beginning in 1979, designed to encourage minority

3 G 4



students to apply to the school. Tr. 12,749-50 (Marra).
As a result of the disproportionately low percentage of 

minority students at Saunders during the 1960's and 1970’s, such 
students were enrolled in greater numbers in the district's 
remaining high schools. These high schools, however, were 
generally reluctant to assume the task of providing vocational 
program opportunities because of the availability of such programs 
at the district's vocational schools. While some expansion of 
vocational programs in the regular high schools did occur during 
the 1970's, the extent of this expansion was limited and far below 
that which had been previously recommended, most notably in a 1968 
NYU study on Occupational Education For Youth in the City of 
Yonkers, GX 645, and in the 1972 NYU Report. GX 115. As a result, 
many students were enrolled in the so-called general program, which 
was neither academic nor occupational in nature. GX 645, at 17-18 
(referring to general program as a "grey area" of education).

The inadequacies of the general program at Yonkers high 
schools have been discussed elsewhere in these findings. 
SCHOOLS IV.B.4 supra. Of particular relevance here is the fact 
that these inadequacies have often been recognized in conjunction 
with recommendations to expand opportunities for students enrolled 
in high school general programs to receive instruction in 
vocational and occupational education. A 1968 study by the New 
York University School of Education and a 1969 Chicago-based 
educational consultant's Master Plan for Occupational Education 
both noted the failure of the general program to meet the 
educational needs of the non-academic pupil and the lack of



adequate occupational or vocational instruction at the district's 
non-specialized high schools. GX 645, at 42-44; GX 646, at 30-31, 
46-48. This problem was particularly evident at Gorton and Yonkers 
High Schools, which by 1971-72 enrolled 84% of the district's non- 
vocational high school minority students. Although large numbers 
of white students were affected by the deficiencies of the general 
program, the widespread nature of the program at the district's two 
disproportionately minority schools (Gorton, for example, was 
described as having 70% of its students in the general program; ^  
GX 115, at 36), along with the apparent disproportion of minorities 
in the general program itself, Tr. 2445 (Guzzo), resulted in many 
of the district's high school minority students being deprived of 
academic and vocational education opportunities comparable to those 
provided elsewhere in the district. The inadequacies of the 
general program, and the disproportionate number of minority 
students in the two high schools most affected by these 
inadequacies, continued through the 1970's. Tr. 2447-54 (Guzzo); 
see SCHOOLS IV.B.4 supra.

The question of whether there has been unlawful discrimi­
nation in the operation of vocational programs in Yonkers public 
schools is a difficult one. Direct evidence of discriminatory 
intent is absent from the record: no evidence was presented which 
demonstrates that school officials established entrance require­
ments at Saunders in order to exclude minorities from the school; 
no evidence exists of any minority student being denied admission



at Saunders in part because of their race. The disproportionate 
impact of the selection process was not as extreme as in other 
instances of Board conduct and was primarily felt by black students 
only. The use of somewhat similar admissions criteria at the 
former High School of Commerce was accompanied by disproportionate­
ly hiqh numbers of minority students at the school. In addition, 
while the Saunders admissions criteria contained an element of 
subjectivity, the admissions process lacked more obvious pre­
requisites, such as regularly conducted interviews or special 
entrance examinations, which may have served either to discourage 
or to exclude minority students from applying or enrolling at the 
school. C t . Arthur v. Nyguist, supra, 415 F.Supp. at 942-43.

Several factors, however, persuade us that a finding of 
unlawful segregation is warranted. The increase in the dispropor­
tionately low representation of blacks at Saunders mirrored the 
increasingly competitive admissions process (and thus the 
heightened use of educationally less than precise criteria for 
admission) and the steadily increasing enrollment at the school. 
The increasingly competitive nature of the Saunders admissions 
process during the early 1970's was itself caused in part by the 
acknowledged inferiority of educational programs at West Yonkers 
high schools. This condition, which had a disproportionate impact 
on minorities, makes the Board's failure to address the exclusion 
of minorities from Saunders even more troublesome: the recognized 
inadequacies of the general program at Yonkers and Gorton should 
presumably have led to at least some efforts to provide equal 
educational opportunities for minority students by including- them

3  o n



in the district's vocational education program at Saunders. The 
school district, though aware of the systematic exclusion of 
minorities which resulted from the Saunders admissions process, did 
relatively little until the late 1970's to eliminate the 
•discriminatory impact of the methods by which students were chosen. 
Cf. Morgan v. Kerr igan , supra , 509 F.2d at 594; Arthur v. Nyqu ist, 
supra, 415 F.Supp. at 942-43. While some attempts were made in 
1973 to address the issue of the disproportionately low number of 
minorities at Saunders, these efforts were ultimately unsuccessful 
and abandoned and resulted in no significant change in the 
admissions process. The school's limited capacity also does not 
adequately account for the district's ability to enroll steadily 
increasing numbers of students, few of whom were black, at the 
school. Finally, the direct evidence concerning the steering of 
minorities into inferior educational programs prior to Saunders' 
transformation into a reputable vocational school supports the 
inference that the disproportionately low number of blacks at 
Saunders was in part the result of the effects of this 
discriminatory treatment on the desire of black students to enroll 
at the school.

The disproportionate impact of the Saunders selection 
process has recently shown a significant decline. From 1977-78 to 
1980-81, the minority enrollment has increased from approximately 
10% to 15.7%; during this period, the districtwide high school 
minority enrollment remained relatively constant 30.1% in 1977- 
78, and 30.5% in 1980-81. Yet while the recent efforts to recruit 
minority students, as well as the expanded opportunities now



available to all students by virtue of the relocation of the 
Saunders program to newer and larger facilities in 1980, have 
rendered the exclusion of minorities from vocational programs less 
likely or foreseeable, the recent nature of these developments does 
not preclude our finding of discriminatory intent. Cf. Arthur v. 
Nyqu i s t, suor a, 415 F.Supp. at 941, 943. On the contrary, in
1972, Saunders' black student enrollment was 3.8%, less than one- 
third of the district's 11% high school average black student 
enrollment; as recently as 1979, the black student enrollment at 
Saunders was 9.8%, substantially less than the 17.7% districtwide 
high school average and less than one-third of the 32% average at 
West Yonkers high schools. While the 1977 Advisory Council report 
found neither discrimination nor subjectivity in the Saunders 
screening process as it then existed, this finding does not 
outweigh the significance of school administrators' earlier 
recognition of the systematic exclusion of minorities from Saunders 
and the subsequent failure, until recently, to meaningfully address 
this condition in a way which would result in increased enrollment 
of minorities at Saunders. In sum, we conclude that the racially 
disproportionate consequences of the Saunders admissions process, 
the Board's failure to address this condition, and the other 
circumstances surrounding this disproportions!ity are sufficient 
to support a finding of intentionally created segregation of and 
discrimination against minorities as of the institution of this 
action.

3(0^



D. Special Education
The history of the Yonkers school district's Special 

Education program is perhaps the most striking illustration of the 
fine line, running throughout the school desegregation portion of 
this case, between benign intentions and actions with unfortunate 
consequences, and similar actions which are also prompted by race- 
related factors or concerns.

Several types of Special Education classes have existed 
over the years for various classifications of mentally and 
physically handicapped children. These classes have included 
classes for the trainable mentally retarded (TMR); emotionally 
handicapped (EH); physically handicapped (PH); neurologically 
impaired (NI); and hearing, visual and language impaired. Tr. 4244 
(Malanga); P-I 78-12. In addition, and of primary concern here, 
the district's Special Education program has included classes for 
the Educable Mentally Retarded (EMR), Emotionally Disturbed (ED) , 
and Learning Disabled (LD).

Prior to the mid-1970's, the procedures for assigning 
students to Special Education classes were fairly ill-defined. See 
Schainker Dep. 10-11 (describing process as "fuzzy"). During this 
time period, the referral of a student for Special Education 
instruction originated from individual teachers operating without 
the aid of written guidelines. A student was referred initially to 
a school psychologist, who would perform an evaluation of the 
student. The results were then forwarded to the school principal, 
who would decide whether to refer the student to the district s 
Special Education screening committee, the Committee on- the

3 1 0



Handicapped ("COH"). After evaluating the recommended reference, 
the COH would decide whether the student should be enrolled in a 
Special Education class. If the student was assigned for Special 
Education instruction, the COH would designate a specific program
classification for the student.

Special Education classes were assigned to schools in the 
district on a space-available basis, with such determinations being 
made in June of the preceding school year. The criterion of space 
availability resulted in the frequent movement of Special Education 
classes between schools from year to year and also led to the 
placement of such classes in non-standard classroom facilities 
(e.q., a sub-basement) within the schools themselves. Tr. 4243, 
4246, 4252 (Malanga). As a result. Special Education students 
experienced frequent disruptions in school assignments unlike those 
experienced by other students in the district.

Space availability was and has been determined largely by 
school principals, who have frequently resisted the placement of 
Special Education classes in their buildings. Over the years, the 
stated reasons for this resistance have varied. Oftentimes, 
principals would indicate that they lacked the building capacity 
for Special Education classes, thus requiring school officials to 
find available space elsewhere. Tr. 4253 (Malanga). In other 
situations, the resistance has been more ill-defined and unrelated 
to any tangible impediments to the inclusion of Special Education 
programs; an unexplained but firm resistance to the incorporation 
of such programs, GX 693; an unwillingness to assume the burdens 
of another school's Special Education programs, GX 695, Tr. 4256-58

3 ^ 1



(Malanga); or the "inhospitable climate" in a school, emanating 
from the resistance of teachers and parents to Special Education 
programs, GX 696. Robert Dodson, the school official responsible 
for directing the Special Education program in the mid to late 
1970's, testified that, in his opinion, resistance to the placement 
of Special Education programs in particular schools was often 
pretextual and in fact represented race-related opposition to the 
incorporation of such programs. Tr. ]j3,028-29.

The 1960's were marked by an increasingly disproportion- 
ate number of minorities in Special Education programs. In 
1961, elementary school Special Education classes were 22% minori­
ty, while the remaining elementary school enrollment was 10% minor­
ity. GX 56. By 1967-68, Special Education classes were 43% 
minority, as compared with a 14% districtwide minority student 
enrollment. As of 1971-72, the Special Education program was 40% 
minority, or double the 20% minority student enrollment 
districtwide.

The disproportionate number of minorities in Special 
Education programs was considered by school officials to be the 
result of discriminatory assumptions made and processes used by 
school district staff regarding the behavior of minority students. 
See Schainker Dep. 18-19; see also Alioto Dep. 117-18. School 
officials recalled that minority students exhibiting aggressive or 
"acting out" behavior often simply would be referred to the 
school's principal for placement in a Special Education class, a 
referral that would be recommended for disciplinary purposes. Tr. 
5081 (Jacobson); Schainker Dep. 18. The Special Education program



was perceived by school officials and community members as a 
"dumping ground" for blacks. Tr. 11,052, 11,081 (Jacobson); GX 
690.

As a result of the district's referral process, two 
fairly distinct categories of Special Education students evolved, 
each being identifiable primarily by the enrolled students' race. 
Minorities were typically assigned to ED classes, while white 
students were assigned to EH, and later LD, classes. See Alioto 
Dep. 40; Tr. 4144, 4164 (Carman); Tr. 13,024, 13,161 (Dodson). By 
1972, white students represented approximately 75% of all students 
in the LD program; the ED program, on the other hand, was virtually 
the precise opposite, with over 70% minorities. GX 689.

Another feature of the Special Education program was the 
frequent placement of disproportionately minority classes in out- 
of-district, predominantly white schools. GX 703, at 4. As far 
back as the 1950's, predominantly minority Special Education 
classes were placed in virtually all-white schools. Tr. 2408—10 
(Guzzo) (Twain Junior High School). During the 1960's, the 
district's first ED classes were placed in School 15, a virtually 
all-white elementary school in Northeast Yonkers. Tr. 4243-45 
(Malanga). In 1967-68, School 15 had six minorities (2%) in its 
regular program and four minorities (100%) in its ED class. By 
1972-72, the school enrolled three minorities (1%) in the regular 
program and eleven minorities (69%) in its two Special Education 
classes (one ED (seven students) and one LD (nine students)). GX 
64, 686. A similar situation existed at Schools 16 and 4 as well. 
In 1967-68, School 16 enrolled no blacks and two hispanics (0.4%

313



minority), whereas its Special Education class had nine blacks 
(64%). By 1971-72, the disproportion, while considerably smaller, 
was still quite noticeable: eiqht regular program minorities (2%), 
as compared to ten Special Education minorities (39%) (at least 
thirteen of the school's twenty-six Special Education students were 
in ED classes). GX 64, 686. In School 4's TMR classes, there were 
four hispanics (1%) in the regular program in 1967-68, as compared 
to nineteen blacks and three hispanics (20%) in Special Education 
classes; by 1971-72, the school had five regular program hispanics 
(1% minority), as compared to twenty blacks and three hispanics 
(24%) in Special Education classes. Although the absolute number 
of students placed in ED classes was relatively small, the combined 
effect of the disproportionate number of minorities in such classes 
and the frequent placement of such classes in virtually all-white 
schools was striking; by 1972, forty-nine of the districts sixty- 
three elementary school ED students, approximately 75% of whom were 
minorities, attended six elementary schools (15, 16, 22, 28, 31, 
32), four of which were located in East Yonkers and all of which had 
at least a 97% white student enrollment in regular programs. GX 
64, 686, 689.

Other practices affecting Special Education students 
further earmarked them in a distinctly negative manner. Because 
school assignments were generally made without regard to a 
student's residence. Special Education students were often 
transported lengthy distances directly and even diagonally across 
the city. Such trips were often well over one hour in length and 
sometimes up to two hours long each way. GX 694, at 53,543;- Tr.

3 7 ^



4172 (Carman). These students, a disproportionate number of whom 
were minorities, arrived at their school earlier or later than 
other students and left school earlier than other students. In 
some instances. Special Education students entered their school 
through separate entrances to the building. Tr. 4245-46 (Malanga); 
Tr. 4292-93 (Hammer). Such students were kept in separate 
classrooms during the course of the school day; these classrooms 
were often located in secluded areas of the school such as sub- 
basements or otherwise empty floors. Tr. 4243-52 (Malanga). 
Special Education students generally ate lunch and took gym classes 
and recesses separately from other students and often did not

. . .  I'C-/participate in other school activities with other students. To 
the limited extent that Special Education students did come into 
contact with other students in the school, this interaction was 
often negative in origin. For example, at 98% white School 15, a 
former student recalled that the predominantly minority Special 
Education students were used as examples of "poor, bad behavior.” 
Tr. 4289 (Hammer).

All of the aforementioned practices had what can fairly 
be described as a severely stigmatizing impact which was recognized 
by other students in the school, by school officials, and by 
community members. Special Education students were perceived by 
other students to be "different ... and bad," Tr. 4294, 4296 
(Hammer), students whom white children "were not supposed to have 
anything to do with in school" and who "had something wrong with 
them," Tr. 5196 (Morris), and who were called "retards," id. One 
principal testified that students were afraid to go to the bathroom

315



or play in the playground because they feared the presence of ED 
students. Gold-Marks Dep. 40-41. Joan Malanga, a former Special 
Education Coordinator (1972-79) and teacher, testified that School 
15 parents and community members protested the presence of her 
"niggers" in their school and sought to have them removed. Tr. 
4248 .

Even more disturbing is the degree to which the policy of 
assigning minority Special Education students to virtually all- 
white schools has contributed to stereotypical generalizations 
about all minorities, not just Special Education students 
themselves. Because disproportionately minority Special Education 
classes were often assigned to overwhelmingly white schools in 
which few other minority students were enrolled, the interaction of 
white students with minorities often consisted primarily of 
interaction with Special Education students. The often vivid 
testimony of parents, PTA members, and school officials clearly 
demonstrates the discriminatory generalizations which this 
practice engendered. PTA Council President and parent Susan Morris 
recalled her childrens' perception that "the terms 'nigger' and 
'retards' were interchangeable," an impression which stemmed from 
the fact that their contact with blacks consisted basically of 
minority Special Education students in their school. Tr. 5196. 
Robert Dodson expressed his concern to other school officials that 
the placement of minority Special Education students in virtually 
all-white schools would have a negative impact on parents, teachers 
and students' perceptions of Southwest Yonkers students in general. 
Tr. 13,027. Dr. Gary Carman, the district's Special Education

37(2.



Director from 1972 to 1975, similarly concluded that where "the 
total experience of those youngsters in that east side school as 
related to black children were [Special Education] kids" --children 
who Dr. Carman believed "had to be viewed by other children as less 
worthy" —  then it would be "easy for me to believe that they would 
generalize that to all blacks." Tr. 4157. Several other witnesses 
testified to similar effect. See Tr. 5309-10 (Frauenfelder)
(Council of PTA's President); Tr. 4427 (Butler) (School 22 PTA 
President); Tr. 5417 (Siragusa) (Council of PTA's President and 
Board member). The district's Special Education practices have 
thus had an impact beyond the particular minority students in the 
classes themselves. Indeed, an additional, likely consequence of 
the district's Special Education program practice — resistance to 
the desegregation of public schools —  has been recognized by 
school officials as well. For instance, at School 32, a 7% 
minority school in 1980 which had disproportionate numbers of 
minorities in its ED classes,blacks enrolled in the school s 
regular program have had difficulty gaining acceptance in the 
school as a result of the district's placement of 
disproportionately minority Special Education classes at the 
school. Tr. 4840-41 (Jamieson).

By the early 1970's, the district's discriminatory 
treatment of minority Special Education students was recognized 
with increasing frequency and concern by school officials. At a 
1971 meeting of the Yonkers Commission on Human Rights, Dr. 
Dorothy Morrison, until 1972 the Director of Special Education, 
acknowledged that students, a large number of whom were minorities.

3ni



were frequently assigned to Special Education classes as a result 
of pressure from principals and teachers to remove these students 
from regular classes. GX 688. Superintendent Alioto and his staff 
also recognized the need to address the problem of discriminatory 
placement of minorities in Special Education programs, one 
characteristic of what he concluded was the worst Special Education 
program in the state. Alioto Dep. 38; ^  also Schainker Dep. 9-
13.

In August 1972, the district hired Dr. Gary Carman, an 
individual with extensive training and background in special 
education, to direct the district's Special Education program. Dr. 
Carman observed that the Yonkers school district, like many other 
school districts around the country, was placing Special Education 
students in self-contained classrooms and that Special Education 
classes contained disproportionate numbers of minorities. He noted 
in particular the high representation of minorities in particular 
programs, such as ED classes, a phenomenon which he had observed in 
rural communities elsewhere. Nevertheless, Dr. Carman also 
testified that the Yonkers school district's Special Education 
program was the most inhumane he had ever seen. Tr. 4156. His 
conclusion, like Superintendent Alioto's, was based in part on the 
(district's practice of assigning students to schools all over the 
district on a space-available basis, a practice which Dr. Carman 
recognized not only as lacking any particular educational 
justification but also as burdensome and stigmatizing to Special 
Education students. He also based his conclusion on the physical 
segregation, or failure to "mainstream," students in the schools to

3'78



which they were assigned as well as the manner in which these 
students entered and departed from school. Tr. 4156. Dr. Carman 
testified that based on his experience both in New York and 
elsewhere, he "knew of no causes, medical causes, social causes, 
biological causes that could possibly account" for the dispropor­
tionate number of minorities in Yonkers' ED classes. Tr. 4144.

Although Dr. Carman indicated at trial that he found no 
evidence that school officials or teachers acted "with the 
intention of discriminating against" minorities in their operation 
of the Special Education program, Tr. 4224, he nevertheless 
recognized that racial factors played a significant role in Special 
Education program decisions. In a series of letters to various 
school officials in 1973 and 1974, Dr. Carman attributed the 
disproportionate minority enrollment in the district's Special 
Education ED classes to the "inherent racism" of white persons and 
"cultural differences" between minority children and the district's 
professional staff. He noted that prior to 1972, children were 
placed in ED classes in particular "because they were disrupting 
classroom environments, or experiencing school failure and were 
members of racial minorities," and that once they were so assigned, 
these students rarely were able either to return to regular classes 
or to graduate. GX 690, 691. Dr. Carman reaffirmed these findings
when he recognized at trial that

I believe that white people, and I include 
myself, view blacks and other minorities 
stereotypically and the amount of racism, I 
personally believe it exists in most of us. I 
also believe it exists in most blacks. I think 
that is what was operating when I looked at the overrepresentation of minority children in 
special education.



I don't believe that the staff in the City 
of Yonkers said let's put this black kid in 
soecial education because he is black. I think 
they said let's put this kid in special 
education because he is disturbed, and they 
thought that in large part because of his black 
behavior.

Tr. 4,236-37.
We recognize the difficulty of the decisions which were 

required of school officials in their operation of the Special 
Education program. Placement decisions involved evaluations based 
primarily on a student's exhibited behaviorial tendencies and thus 
almost inevitably called for partly subjective determinations. 
Nevertheless, the evidence does not suggest that the Yonkers school 
district's Special Education program was simply another in a series 
of flawed Special Education programs then in existence. As noted 
previously, both Dr. Carman and other school officials acknowledged 
that the program was unusually discriminatory in its impact and 
that the evaluative process, even though a difficult one, was 
particularly prone to unwarranted racial assumptions. Asked
whether black children were difficult to control in a regular 
classroom environment. Carman replied that this was the case in 
Yonkers. I wouldn't say dif,ficult by nature." Tr. 4225. In 
addition, some of these practices, such as the transportation of 
minority Special Education students to largely white schools on 
what essentially amounted to an intact basis, are not similarly 
explainable on such grounds. We recognize that discriminatory
practices in this area, as elsewhere in the operation of the school 
system, were not simply the result of racial hatred or any ill- 
conceived desire to subject minority children to highly



stigmatizing and inferior treatment. However, the practices and 
decisions governing the Special Education program, however 
innocently arrived at, were in part the product of racially-related 
criteria and judgments which cannot be dismissed as educationally 
or legally justifiable. In short, the record demonstrates that 
prior to the mid-1970's, the discriminatory consequences of the 
school district's Special Education program were the result of 
decisions and actions in which impermissible racial factors played
a significant part.

The district's response to Dr. Carman's initial findings 
consisted of basic agreement with his evaluation of the Special 
Education program and a concerted effort towards improvement. In 
November 1972, school officials conducted a three-day workshop 
sponsored by the state's education department at which many of the 
aforementioned problems were discussed. GX 692. Soon thereafter, 
under Dr. Carman's leadership, the district began to implement a 
number of recommended changes in the operation of its Special 
Education program. Among the most significant changes which
occurred was an alteration in the location of Special Education 
classes. As a result of the Board’s adoption of Superintendent 
Alioto's 1973 school reorganization proposals, the school district 
was divided geographically into quadrants and Special Education 
students were assigned whenever possible to schools within their 
quadrant. GX 114, at 3; Tr. 4169-70 (Carman). Consequently,
Special Education students began to experience a reduction in the 
distance and duration of their trip to school, and the stigmatizing 
effect of placing minority Special Education students in virtually

3^1



all-white schools was substantially reduced.
Other changes in the operation of the Special Education 

program were made as well. Dr. Carman became chairman of the COH in 
order to give himself an opportunity to personally ensure that the 
decision to place minority children in Special Education classes 
was properly made. In addition, parental participation in the 
screening process was increased by making them voting members of 
the COH. Finally, in the fall of 1973, the district began to return 
Special Education students to regular classes. These students 
continued to receive Special Education assistance from a resource 
teacher, who typically would provide special instruction outside
the regular classroom setting.

These changes produced fairly quick results. Although 
Dr. Carman was not asked to and had not conducted individual, case- 
by—case evaluations prior to making his recommendations for reform 
in order to determine the reasons for the disproportionate number 
of minorities in particular Special Education programs, in 1973 
some ED students were returned to regular classes at his suggestion 
and the overwhelming majority of them remained in these classes. 
Tr. 4167. The number of_students referred to ED classes declined 
from forty—two in 1972—73 to six in 1973—74. GX 691. In addition, 
available statistics suggest that the disproportionate number of 
minorities assigned to ED classes in predominantly white elementary 
schools also declined. For example, while the number of Special 
Education students in School 16 (2% minority) in 1971-72 was
twenty-six,— ^ ten of whom were minorities, in 1975-76 these 
numbers were twenty-eight and five, respectively. At School 12 (4%



minority), the number of minorities in Special Education programs, 
including ED classes, decreased from fourteen out of thirty-five in 
1971-72, to zero out of fourteen in 1975-76. By 1975-76,
approximately 11% of the ED students in predominantly white

. . 1̂ 1/elementary schools were minorities.— “
After Dr. Carman left the Yonkers School District in 

1975, responsibility for the Special Education program was assumed 
by Director of Special Services Robert Dodson, a minority school 
administrator who had participated in the district's 1972 workshop 
but was not trained in special education, and Assistant Director 
for Special Education Joan Malanga. The next several years were 
marked by additional efforts in certain areas of the Special
Education program and the perpetuation or reappearance of
previously recognized problems with the program. Under Dodson, the
district established within each school a School Pupil Review Team, 
or SPURT. These committees, consisting of professionals similar to 
those that comprised the COH, were designed to increase the 
referring school's role in determining whether to refer a student 
to a Special Education program, with the goal of reducing the 
number of referral determinations to be made by the COH. In
addition, efforts were made to include Special Education students 
in extracurricular activities at their assigned schools, in keeping 
with Dr. Carman's efforts to mainstream such students into the 
schools' regular programs.

On the other hand, a number of other problems were left 
unaddressed, and previous patterns of disproportionality in the 
placement of minorities in ED classes and in virtually all-white



schools reappeared. In 1976, the space availability criterion 
continued to be used for elementary and middle school referrals, a 
circumstance which Malanga noted was disruptive, burdensome and 
would not have been a problem had the affected students been 
assigned to regular, rather than Special Education, programs. GX 
697. This policy also resulted in the increased incidence of 
assigning minority Special Education students to of ten-distant, 
predominantly white schools in which they represented a significant 
portion of the school's total minority student enrollment, a trend 
which was discernable both for Special Education students generally 
and ED students in particular. In 1975-76, only four elementary 
schools with less than 15% minority student enrollments had 
minority Special Education student enrollments comprising over 20% 
of the school's total' minority student population; by 1980-81, 
there were nine such schools, seven of which had minority Special 
Education student enrollments comprising over 30% of the school's 
total minority student population. As for ED students, in 1975-76 
approximately zero to five ED students at heavily white (less than 
5% minority) elementary schools were minorities. By 1979-80,
approximately twenty-seven to thirty-seven ED students at heavily 
white (less than 11% minority) schools were minorities. SB 812. 
Malanga recognized this phenomenon and its stigmatizing 
consequences at the time but testified that the school
administration reacted with "indifference" and, in one instance, 
assigned an ED class to heavily white School 22 despite the 
school's previous inhospitable reception to, and inadequate 
facilities for. Special Education programs. Tr. 4262-63, 4279. In



1979-80, School 22 was 9% minority (twenty-two minorities), with 
seven minorities in its eleven-student ED program. S3 812.

The d i spropor tionate referral of minority students to 
Special Education programs, particularly ED classes, eventually 
became the subject of investigations by state education officials 
and the United States Department of Education's Office of Civil 
Rights. Those investigations culminated in findings reaffirming 
that such disproportion did in fact exist and, according to the 
federal investigative findings, was "the result of methods of 
administration which subject[ed minority ED students] to 
discrimination." GX 699. Donald Batista subsequently assumed 
responsibility for directing the Special Education program and, 
under his direction, the district reevaluated many of the students 
then assigned to ED classes. Under Batista's direction and in 
response to the aforementioned governmental investigations, the 
district compiled in September 1980 a revised procedural manual for 
the COH to use in operating the district's Special Education 
program. SB 466.

One month after the filing of this action, the United 
States Department of Education and the Board reached an agreement 
whereby the Board undertook to implement certain remedial measures 
relating to the operation of its Special Education program. 
According to the Department of Education, these procedures, if 
fully implemented, would ensure compliance with Title VI and the
regulations thereunder. SB 479, 480.—

The Board, in its trial brief, contends that its decision 
to place black Special Education students in predominantly white

3 ^ 5



schools was preferable to the more segregative alternative of 
placing these students in predominantly minority schools in 
Southwest Yonkers. In its post-trial submissions, the Board argues 
further that its placement of disproportionately minority Special 
Education classes in East Yonkers schools was justified by greater 
space availability at these facilities and, in any event, cannot be 
considered racially segregative. In our view, the Board's 
contention unduly minimizes the severely stigmatizing consequences 
of its "integrative" approach; in similar circumstances, such 
actions have consistently been found to be discriminatory despite 
their facially "integrative" consequences. See Reed v. Rhodes, 607 
F.2d 714, 730 (6th Cir. 1979), cert, denied, 445 U.S. 935 (1980); 
Armstrong v. O'Connell, supra, 451 F.Supp. at 852; Berry v. 
Benton Harbor, supra, 442 F.Supp. at 1306. The continuation of
this practice in the mid to late 1970’s despite an awareness of 
this stigmatization and its effect on the community's perception of 
minority students substantially undermines any argument that the 
Board's integrative approach was designed for any benevolent or 
racially desegregative purpose, or was preferable to placing such 
students in predominantly minority, geographically more proximate 
schools. Moreover, the Board ignores the fact that desegregation 
of the schools to which Special Education students were assigned 
would have substantially avoided the stigmatizing effects of its 
Special Education school assignment policy. Even the retention of 
Special Education students at their predominantly minority 
neighborhood schools would have at least been consistent with the 
Board's regular assignment practices and would have also avoided

3 ^ ^



the stigmatizing and burdensome effects of its conduct. Indeed, 
to the extent the district's Special Education program assignment 
policy contributed to racial stereotyping and resistance to 
desegregation and thus made community acceptance of desegregative 
reorganization plans more unlikely, the policy did have indirect 
segregative consequences on the racial composition of Yonkers 
public schools. Given the inconsistent and otherwise suspect 
application of the space availability criterion and the Board's 
awareness of its discriminatory consequences, we cannot accept 
either space availability or the absence of any racial 
"segregation" of minority Special Education students as sound, 
consistent or neutral justifications for the discriminatory manner 
in which the Special Education program was conducted.

The evidence as a whole supports the conclusion that the 
Special Education program has at various periods of time and in 
various ways been operated in an unlawfully discriminatory manner. 
The striking disproportion in minority student enrollment in 
Special Education classes prior to 1972, the evidence of the 
assumptions and attitudes which influenced the referral process, 
and the various ways in which Special Education students were 
treated once referred, are persuasive evidence that the Special 
Education program was operated in an impermissibly discriminatory 
manner. While the substantive judgments of school officials in 
this particular area are not easy ones either to make or to review, 
the unique disparities in the treatment of minority Special 
Education students in Yonkers' public schools —  as evidenced by 
their disproportionate presence in such programs, as well as the

3 ^ 1



other practices affecting such students and their known, avoidable 
and highly stigmatizing effects —  make deference to educational 
decisionmaking judgments unwarranted in this situation. Cf. Berry 
V. Benton Harbor, supra, 442 F.Supp. at 1307-08 (intact busing and 
assignment of minority students from demolished minority school to 
predominantly white school not justified by fact that classes were 
part of state program for deprived areas, even if school district 
obtained additional funds as a result). Compare Alvarado v. ^  
Paso Independent School District, 426 F.Supp. 575, 609, 615 
(W.D.Tex. 1976) (finding no liability where implementation of 
special education diagnostic program was not accompanied by 
disproportion in number of minority students in classes for 
mentally retarded), aff'd, 593 F.2d 577 (5th Cir. 1979). The 
placement of disproportionate numbers of minority Special Education 
students in predominantly white schools lacked any plausible 
justification rooted in current educational practice and resulted 
in a compounding of the discriminatory manner in which Special 
Education students were treated. Such assignments, like the
assignment of faculty and staff, were not constrained or compelled 
by "neighborhood school" considerations or any other topographic or 
demographic factor. Rather, the Board's assignment practices for 
Special Education students were clearly inconsistent with its 
general neighborhood school policy and were allowed to continue to 
a significant extent despite the district's awareness of the 
stigmatizing consequences of these practices. Although significant 
and partly successful efforts were made during the mid-1970's to 
improve several aspects of the district's Special Education

3^^



program, other stigmatizing practices either resurfaced or were 
permitted to continue. This factor, together with the spillover 
effects of the district's previous discriminatory practices and 
their impact on school desegregation generally, demonstrates that 
the historically discriminatory operation of the Special Education 
program continued to have discriminatory effects as of the filing 
of this action.

E. Teacher and Administrative Staff Assignments
The racial identifiability of Southwest Yonkers public 

schools has developed not only with respect to students but also 
with respect to teachers and administrative staff. While the 
absolute number of minority staff members'-^ and the methods by 
which they have been assigned have varied over time, the dispropor­
tionate representation of minority staff in schools with a 
disproportionate or predominant number of minority students has 
been a constant feature of Southwest Yonkers schools.

Prior to the late 1960’s, the Yonkers school district 
employed few minority teachers or administrators. At least two of 
the first three black teachers hired by the district from 1946 to 
1950 were assigned either to School 1 or School 6, the two most 
heavily minority schools in Yonkers at the time. Hamilton Dep. 
4^29-30; GX 985. The number of minority staff increased over the 
next several years; for example, by 1958, Longfellow Junior High 
School, which had a relatively small but disproportionately 
minority student enrollment, had three black teachers on its staff. 
Tr. 13,004 (Dodson). By the mid-1960's, Yonkers High School, which 
in 1967 enrolled 36% of the district's high school minority



students, had three black teachers as well. Tr. 2420 (Guzzo).
By 1967-68, the Yonkers school district employed ninety- 

seven minority staff members, comprising 7% of its total staff. By 
this time, the disproprortionate representation of minority staff 
in disproportionately minority schools was beginning to emerge. Of 
the eight elementary schools with greater than 10% minority staff, 
four of them, including the two schools with the highest percentage 
of minority staff, were less than 20% non-minority schools (4,9, 
22,32). The four elementary schools with no minority staff 
members, however,'-^/ were all schools with at most 13% minority 
student enrollments (11,13,16,23). The seven — ^ elementary 
schools with over 25% minority enrollments, all but one of which 
(School 24) was located in Southwest Yonkers, employed 40% of the 
district's minority elementary school staff. As for the district s 
junior high schools, 75% of the minority staff was assigned to the 
three schools, all in Southwest Yonkers, with the highest minority 
student enrollments in the district. The four secondary (junior 
and senior high) schools with minority student enrollments greater 
than the districtwide average employed 31% of the district s total 
secondary school staff, but employed 52% of the minority secondary
school staff.

In the late 1960's and early 1970's, the Board, primarily 
under the leadership of Superintendents Mitchell and Alioto, made 
increased efforts to recruit minority teachers and administrators 
to the school district. This period was also occasioned by an 
alteration in the district's hiring procedures; as of 1972, hiring 
decisions previously made by the Personnel Department were now to

3“lo



be made by school principals themselves by selecting applicants 
from central personnel files and interviewing them for positions in 
their schools. GX 798. The district's increased recruitment 
efforts resulted in an accompanying rise in minority staff from 
ninety-five (1967) to 133 (1970) to 174 (1975).

At the same time, the district's procedures for assigning 
or transferring teachers to particular schools became more formally 
structured. In 1969, the Board and the Yonkers Federation of 
Teachers entered into their first collective bargaining agreement. 
This agreement, which has remained substantially the same since 
1969 insofar as teacher assignment practices are concerned, affords 
teachers the right to transfer voluntarily to available positions 
in the district's other schools, with priority based on order of 
seniority. Thus, the hiring and assignment of new faculty has been 
effectively limited to filling vacancies not otherwise filled by 
already-employed teachers exercising their seniority rights.

The collective bargaining agreement also limits the 
district's ability to require teachers to transfer involuntarily. 
Nevertheless, the agreement reserves to the Board the power to 
implement such transfers "when judged to be in the best interest of 
the school system." GX 794, at 30; GX 795,at 32; GX 110, at 33; 
GX 108, at 33. Despite this residual flexibility in staff 
assignments and the Board's awareness of the increasing 
disproportion of minority teachers in minority schools during the 
early 1970's, this provision was rarely exercised.

At the time of the Board's initial contractual agreement 
with the Yonkers Federation of Teachers, the disproportion in



minority staff at predominantly minority schools was becoming 
increasingly clear. In five elementary schools with over 50% 
minority student enrollments (6,12,19,25,King), twenty of the 
district's forty-six minority elementary school teachers were 
employed. Two schools in particular —  School 19 (83% minority)
and King (57% minority) —  employed 26% of the district's 
elementary school minority staff. In contrast, seventeen
elementary schools had one or no minority staff members; eleven of 
these schools had at least 95% white student enrollments. On the 
middle school level, nineteen of the district's twenty-seven minor­
ity staff members were assigned to the three most heavily minority 
middle schools, all of which were located in Southwest Yonkers. A 
similar pattern existed at the high school level as well.

By 1972-73, this disproportion had become even more 
pronounced. Schools 6,12,19,25 and King now employed thirty-six,
or 54%, of the district's sixty-seven elementary school minority

1staff. The three most heavily minority middle schools—  employed 
69% of the district's middle school minority staff, a disproportion 
similar to that which existed at the high school level.

The extent to which the increasing disproportion in 
minority staff at predominantly minority schools was the result of 
a deliberate "role model" policy is an issue of considerable 
dispute. The existence of a racially based assignment policy was 
fairly well-established in Yonkers public schools with respect to 
principals, whose assignment was governed by district officials 
rather than by collective bargaining agreement. Both Assistant 
Superintendent Stanley Schainker and Board member Rosemarie

312



Siragusa acknowledged that minority principals were deliberately 
assigned to schools with greater minority student enrollments. 
Schainker Dep. 22, 224-25; Tr. 5427-28 (Siragusa). Other Board
members who disavowed the existence of a "role model" policy did so 
only with respect to teachers rather than principals. Tr. 9844-45 
(Minervini) ; Tr. 10 ,947 (Jacobson). Both Jacobson and Joseph 
Guerney, Director of Elementary Education, acknowledged that 
district officials had control over such assignments unimpeded by 
the district's collective bargaining agreement with the teachers' 
union. Tr. 11,007; Tr. 11,517. As a result of the district's 
administrative staff assignment policy, all eight of the principals 
who were either hired or reassigned during Superintendent Alioto's 
tenure were placed in identifiably minority schools. GX 464; Tr. 
11,007-010 (Jacobson); Tr. 11,521-30 (Guerney). Of the thirteen 
minority principals and assistant principals in Yonkers in 1974-75, 
nine were assigned to predominantly minority schools and two others 
were assigned to Yonkers High School (42% minority) , the district s 
most heavily minority high school at that time. Prior to 1979, 
only one minority prinicipal had been assigned to an identifiably 
white school, and this principal (Hattie Becton) was subsequently 
reassigned to King (90% minority at the time). GX 64; Tr. 11,008 
(Jacobson). This assignment policy thus served to further 
establish Southwest Yonkers schools as identifiably minority 
schools.

The existence of a "role model" assignment policy for 
teachers, however, is not borne out by the weight of the evidence. 
The only clear evidence as to the existence of such a policy for



teacher assignments was proffered by Board member Siragusa. 
According to Siragusa, this policy originated from Superintendent 
Alioto and Assistant Superintendent Schainker and was agreed to by 
the Board. Tr. 5427-28; Siragusa Stip. 1M[ 2a-2c. Schainker
acknowledged that the district's efforts to hire minority teachers 
occurred at a time when administrators "were operating under the 
assumption ... that minority youngsters need appropriate role 
models", but his testimony regarding the existence of a role model 
policy was concerned primarily with the district s hiring efforts 
with respect to administrative personnel. Schainker Dep. 22, 224- 
26. School principal Robert Dodson acknowledged that a segregative 
assignment policy was followed with respect to Special Education 
teachers, Tr. 13,018-19, but also testified that he was not 
instructed by Superintendent Alioto to assign minority teachers as 
role models in minority schools. Tr. 12,919. While Dodson's
hiring efforts as Yonkers High School principal yielded an increase 
in minority staff from eight (1970-71) to twenty-one (1974-75) and 
were supported by Alioto, Dodson recalled that Alioto had stated 
that "it was very important that all students, white and black, 
view blacks in professional roles...." Tr. 12,919. And while
Superintendent Robitaille acknowledged that the School 6 principal 
had sought to develop a staff with a racially segregationist 
attitude, he could not recall the existence of a general role model 
policy for teacher assignments and testified that such assignments, 
while frequently resulting in minority staff being placed in 
minority schools, were based on the staff member's years of 
experience. Tr. 4613-14. Finally, the Task Force for Quality

3 ^ 4



Education's finding that there was an attempt at certain schools, 
such as King (53% minority faculty, 96% minority students, 1975- 
76), to place black teachers at predominantly minority schools, Tr. 
3722 (Ross) , this conclusion was drawn from an examination of 
statistical information and was not based on a finding that a 
general "role model" assignment policy existed for all Southwest
Yonkers schools.

Several witnesses, including two Board members previ­
ously called as witnesses by plaintiffs, testified as to the 
absence of any such role model policy for teacher assignments. 
Board members Robert Jacobson and George Minervini disavowed the 
existence of such a policy, and Joseph Guerney, Director of 
Elementary Education, also testified to similar effect. Tr. 9844- 
45; Tr. 10,947; Tr. 11,235-37. In addition, three principals from 
South-west Yonkers schools all testified that they neither knew of 
nor practiced a "role model" policy. Tr. 12,589-90 (DiChiaro) 
(Commerce and Hawthorne Middle Schools); Tr. 13,243-44 (DeFino) 
(Schools 18 and 19); Tr. 13,487-88 (Steinberg) (School 19 and
Hawthorne Middle School). Although principals were generally
encouraged to hire minority staff, the record does not establish 
that only Southwest Yonkers principals were encouraged to do so. 
Schainker Dep. 22; Tr. 13,023 (Dodson). Thus, the record supports 
a finding that a "role model" policy was not the reason for the 
disproportionate assignment of minority teachers to minority 
schools.

The absence of a "role model" assignment policy for 
teachers, however, does not compel the conclusion that, the

3“i5



increased disproportion of minority staff at minority schools was 
fortuitous and unintentional. The foreseeablity of the increased 
racial segregation of staff members and the district s limited 
efforts to alleviate the imbalance together suggest that the 
resulting assignment of minority staff to minority schools was a 
practice which the Board approved of and intended to continue. The 
combination of the frequent exercise of transfer rights in a 
largely west to east direction, the resulting increase in vacancies 
at disproportionately minority schools, the contemporaneous 
affirmative efforts to hire minority staff, and the district's 
failure to exercise its reassignment prerogative resulted, quite 
obviously, in the vast majority of minority faculty being assigned 
to Southwest Yonkers schools and essentially made the use of any 
more explicit "role model" policy unnecessary. Given the school 
district's deliberately segregative pattern of administrative 
staff assignments and the racial disproportionality in teacher 
assignments prior to the collective bargaining agreement, it is 
reasonable to_ infer that the subsequent pattern of assigning 
minority teachers to disproportionately minority schools was 
considered desirable and was deliberately unaltered.

By 1974“75, four of the five elementary schools with over 
20% minority staff were at least 80% minority (6,12,19,King) and 
had black principals, while nine of the thirteen elementary schools 
with no minority faculty (and a white principal) were at least 97% 
white (8,11,15,16,17,21,28,29,32). The secondary schools were 
similarly disproportionate in minority staff representation; the 
three middle schools with over 10% minority staff were all over 50%



minority (Longfellow, Hawthorne, Commerce), and the two high 
schools with over 10% minority staff were the district’s most 
heavily minority high schools (Yonkers (42% minority) and uorton 
(30% minority). These five schools employed 68% of the minority 
staff assigned to the district's thirteen secondary schools.

The district's affirmative hiring efforts during Super­
intendent Alioto's term were also accompanied by a steady flow of 
white teachers from Southwest to East Yonkers schools. As 
discussed previously, ^  SCHOOLS IV.B.2 su£ra, such transfers were 
induced primarily by the recognized and perceived preferability of 
teaching in educationally superior East Yonkers schools. Conse­
quently, the. number of minority teachers in predominantly white 
schools declined. None of the district's seventeen predominantly 
(greater than 90%) white elementary schools experienced an increase 
in the number of minorities on their faculty from 1971 to 1975; ten 
of these schools actually experienced declines in minority staff, 
and four others continued to employ no minority staff.

The district's staff assignment practices were marked by 
other discriminatory or otherwise negative features. The minority 
teachers who were assigned to East Yonkers schools were often 
Special Education teachers who were deliberately assigned to such 
schools because of the disproportionate number of minority students 
in Special Education classes. Tr. 13,018-19 (Dodson); see a ]^ 
Tr. 2408-09 (Guzzo). In addition, minority teachers who were 
employed in Yonkers public schools often taught non-academic 
subjects such as music, physical education, health, typing or home 
economics. GX 587 (Gorton); Tr. 2412-14, 2420 (Guzzo) (Franklin,

3 ^ 1



Hawthorne, Yonkers High); Tr. 4287 (Hammer) (Whitman, Roosevelt); 
Tr. 13,151-52 (Dodson) (Yonkers High). The general west to east 
movement of teachers also resulted in the assignment of the bulk of 
the district's less experienced staff to heavily minority Southwest 
Yonkers schools. See SCHOOLS IV.B.2 supra.

While the Board was well aware of the significant racial 
imbalance in staff assignments, limited efforts were made to 
renegotiate the district's collective bargaining agreement so as to 
give the district more flexibility in assigning and/or transferring 
teachers within the school system. While some discussion of the 
desirability of such an effort occurred at or about the beginning 
of Dr. Robitaille’s super intendency in 1975, Tr. 5525-26 
(Minervini) ; Tr‘.‘''5949^'THobitailleT’; these efforts were not only 
unsuccessful and, according to the district's chief labor 
negotiator, eventually abandoned in negotiations with the teachers' 
union, Tr. 13,174-75 (Dodson), but in 1977 the Board agreed to 
specific limitations on its ability to implement involuntary 
transfers of school teachers. Compare GX 795̂  at 32 with GX 110, at 
33 (authorizing involuntary transfers only for health, safety, or 
other reasons in accordance with mutually understood past 
practices, or"̂ to provide students with unique educational skill or 
learning experience).

The Robitaille super intendency of 1975-78 was marked by a 
recognition of the aforementioned racial segregation of school 
staff, and limited efforts to rectify that condition. Superinten­
dent Robitaille assigned to Joseph Guerney the responsibility of 
recruiting minority teachers for positions at East Yonkers schools



and sought to assign at least one minority teacher to every public 
school in Yonkers. This effort was only minimally successful. The 
number of elementary schools with no minority staff was reduced 
from eleven (1975-76) to five (1978-79), and the number of minority 
staff in predominantly white East and Northwest Yonkers schools, 
which had decreased from eighteen (1970—71) to nine (1974-75) 
during Superintendent Alioto's tenure, rose slightly to eleven 
(1978-79). These increases, however, were overshadowed by
increased minority staff in heavily minority Southwest Yonkers 
schools. For example, the number of minority staff in predomi­
nantly minority Schools 6, 10, 19 and King increased from twenty- 
five (1974-75) to thirty-two (1978-79). This increase in minority 
staff at Southwest Yonkers schools occurred despite the staff term­
inations implemented as part of the district's fiscally induced 
budget reductions of the mid—1970's, layoffs which affected most 
severely the less experienced minority teachers in Southwest 
Yonkers schools. See SCHOOLS IV.B supra. For example. School 6, 
whose minority faculty dropped from 47% (1975-76) to 14% (1980-81),1 I
suffered a 38% loss in its faculty as a result of the 1975-76 
teacher layoffs. GX 64, .75.

By the end of Dr. Robitaille's superintendency, the 
racial identifiability of the school district's faculty remained 
clear. The five elementary schools with over 15% minority staff 
were Schools 6 (98% minority students) , 10 (87%) , 19 (78%) , 25
(85%) and King (97%); the five elementary schools with no minority 
staff were Schools 8 (3% minority students), 17 (3%) , 21 (3%) , 29 
(2%) and 32 (7%). King Elementary School alone had more minority



staff (sixteen) than all of the East Yonkers elementary schools 
combined (seven). GX 64. A similar pattern existed at the
secondary school level as well.

As of 1980, the disproportion in minority staff at minor­
ity schools was still fairly severe. The four elementary schools 
with over 20% minority staff {10,19,25 ,King) had from 79% to 97% 
m i nor ity student enr olImen t s and employed thirty — four of the 
(district's seventy—six minority elementary school staff. Over half 
(thirty-nine of seventy-six, or 51%) of the district's minority 
elementary school staff were assigned to five elementary schools 
with at least 70% minority enrollments. Of the five schools with 
no minority staff, four of them had at least 93% white student 
enrollments (17,21,29,32). ' The'three middle schools with'over 10% 
minority staff were Fermi (58% minority students), Longfellow 
(92%), and Hawthorne"(64%). Although tHese schools employed less 
than half the total number of middle school staff ih the district, 
they employed twenty-four of the thirty-nine^"^ minority middle 
school staff. On the high school level, the two schools with over 
10% minority staff were Gorton (44% minority students) and Yonkers 
(56%), schools which employed forty-three of the district's fifty- 
six minority high school staff members. The distribution of 
minority principals and assistant principals, while improved from 
previous years, was still imbalanced even as late as 1980. 
Although the district had more schools with over 90% white 
enrollments than schools with greater than 50% minority 
enrollments, six of the district's eleven minority principals and 
assistant principals were assigned to predominantly minority

4 0 0



schools while only three were assigned to over-90% white schools.
In sum, the racial disproportion in minority faculty and 

administrative staff assignments has been a constant feature of 
Yonkers public schools. The clearly foreseeable and foreseen 
effect of the district's affirmative hiring of minorities, when 
combined with the collective bargaining agreement's transfer 
provisions and the general west to east flow of white teachers, was 
to sharply increase the number of minority teachers in Southwest 
Yonkers schools. The district made no demonstrated efforts to 
invoke its reassignment powers to counterbalance this phenomenon 
and made limited and largely unsuccessful efforts to renegotiate 
the contractual provisions to which it bound itself in 1969. While 
we recognize the practical -'difficulties'which would have 
accompanied such efforts, this does not excuse the Board's failure 
to take any significant and lasting steps to reverse the racial 
disproportion which existed prior "to the 1969 agreement and which 
was solidified and intensified during subsequent years. 
Armstrong v. Brennan, 539 F.2d 625, 635 (7th Cir. 1976) , vacated„_qn 
other grounds, 433 U.S. ^ 2  (1977); Morgan v. Kerrigan, su£ra, 509 
F.2d at 595-96;'̂ '̂  Berry v. Benton Harbor, supra, 442 F.Supp. at 
1280, 1301. The Board's awareness of and acquiescence in the
racial disproportionality of staff assignments is particularly 
troubling since neighborhood school policies, concern over 
transportation burdens, and patterns of residential segregation 
played no role in the formulation of staff, as opposed to student, 
assignment policies and practices. Morg^ v. Hennigan, 379
F.Supp. 410, 456 (D.Mass.), aff'd, 509 F.2d 580 (1st Cir. 1974),



cert, denied, 421 U.S. 963 (1975). The collective bargaining
agreement, moreover, in no way explains the racially 
disproportionate pattern in staff assignments which had already 
become evident in years prior to the effective date of the first 
agreement, a disproportion which was apparent to school officials 
when the agreement was entered into. See Armstrong v. Brennan, 
supra. Such disproportion, in an area of public school operation 
in which residential segregation and student assignment-related 
concerns are essentially irrelevant, is of particular probative 
value in determining whether the racial segregation of teaching and 
administrative staff has been unlawfully created. S ^  ^̂ t̂hur v. 
Nyquist, . supra, 415 F.Supp.. a,t 945. _The collective bargaining 
agreement - restrictions also cannot explain _the deliberate 
assignment of principals and Special Education teachers on a race­
conscious basis, a policy whose purported benevolence is outweighed 
by constitutional concerns of race neutrality. See Diaz v. San 
Jose Unified School District, supra, 733 F.2d at 670; Arth_^ v. 
Nyquist, supra, 415 F.Supp. • at 946. The aforementioned 
considerations persuade us. that ,the assignment of disproportionate 
numbers of minority staff to predominantly minority Southwest 
Yonkers schools was in part the result of a desire to, and in fact 
did, create and perpetuate racial imbalance among Yonkers staff 
members consistent with the racial segregation of the Yonkers 
public schools, and had a segregative impact on those schools.

4 0  3



F, Refusal to Implement Desegregative Reorganization Plans
1. Introduction
Plaintiffs seek to establish the segregative intent of 

the Board and its liability for the segregation of Yonkers public 
schools based in part on its persistent refusal to adopt and 
implement proposals for desegregating the schools. Briefly stated, 
plaintiffs allege that the Board's responsiveness to racially 
motivated community opposition to such proposals Was tantamount to 
an impermissible official recognition or effectuation of private 
discriminatory desires consistent with its other discriminatory 
acts and omissions, and thus forms the basis for holding the Board 
liable for the segregation which its conduct contributed to and 
maintained. Primary among the "examples of such conduct is the 
Board's refusal to adopt the desegregative components of the 1972 
NYU Report or the 1977"Phase II reorganization plan.

The nature of community opposition to, and the reasons 
underlying the Board's rejection of, the NYU Report proposals and 
the Phase II plan are beat examined against the backdrop of prior 
desegregative efforts of the Board and school administration.

The desirability of reducing the increasingly severe 
racial imbalance iit Yonkers public schools had been recognized well 
before the Board's consideration of proposals for desegregating the 
schools. in 1963, the New York State Commissioner of Education 
issued a letter to all state public school superintendents and 
board presidents in which he expanded upon previously articulated 
state policy concerning school desegregation and emphasized the 
necessity of insuring that racial imbalance, and its concomitant

4 0 3



interference with the providing of equal educational opportunity, 
be eliminated.!^/ In response, the Board issued a resolution 
recognizing its commitment to the stated policies of state 
educational authorities and noted the responsibility of the 
community as well as the Board in alleviating racial imbalance in 
the schools and in pursuing efforts in other areas, such as 
housing, which also would achieve this goal. GX 924. At the time, 
the racial segregation of the Yonkers public schools was beginning 
to emerge. No predominantly minority schools existed at the time; 
on the elementary school level, however, the r^ial identifiability 
of School 6 (45% minority in 1961-62), 12 (41%) and 19 (32%) , three 
elementary schools containing 47% of the district's minority 
elementary school children, was well-established by that time. 
Recognizing the state policy on segregation and the emerging racial 
imbalance of the schools, the Board, in 1966, notified the New York 
State Education Department of its interest in implementing a 
program to eliminate racial imbalance. GX 911.

In 1968 and 1969, the'New York State Board of Regents 
fgj^terated its previously stated commitment to the elimination of 
racial segregation in the state's public schools. It noted the 
importance of eliminating racial segregation as a means of 
providing equal educational opportunity and stated its opposition 
to recently enacted state legislation prohibiting school boards 
from altering school boundaries or attendance zones for the purpose 
of eliminating racial segregation in the public schools 
legislation which was subsequently declared unconstitutional. See 
Lee V. NvQuist, 318 F.Supp. 710 (1970), aff'd, 402 U.S. 935 (1971).

4 o 4



The first significant recognition of the need to address 
the racial imbalance of Yonkers public schools occurred during the 
superintendency of Paul Mitchell. Mitchell expressed his concern 
that the racial segregation of the schools prevented students from 
receiving an equal education and was by all accounts deeply 
committed to rectifying this disparity. Tr. 4060-61 (Sobel); Tr. 
4969-70 (Jacobson); Tr. 5203 (Morris); Tr. 13,136-37 (Dodson). 
During his brief tenure as superintendent, some initial steps were 
taken in recognition of the district’s increasing racial imbalance. 
These steps consisted primarily of the planned opening of the King 
Intermediate School and School 10 as racially integrated Southwest 
Yonkers schools; efforts to recurit minority staff; and a series 
of human relations workshops, conducted for teachers and 
administrative staff, which were designed to sensitize school 
personnel to the needs of minority students, particularly blacks. 
The workshops were also considered an initial step towards the 
eventual implementation of a desegregation plan for the district's 
schools. By this time, specific desegregation proposals began to 
be considered in the district. For instance. Superintendent 
Mitchell discussed with school principals the possibility of 
redrawing high school^"attendance zone lines on an east—west basis 
so as to improve racial balance in the district's high schools. 
Tr. 13,137-39 (Dodson).

During the 1969-70 school year, the district also sought 
the assistance of state education officials in addressing the 
problem of racial imbalance. Superintendent Mitchell met with Dr. 
Morton Sobel, a specialist in educational integration for the New

4 o b



York State Division of Intercultural Relations in Education, and 
secured Sobel's assistance in the district's initial integration 
efforts. Sobel discussed with school officials the district's 
proposed application for financial assistance from the state's 
"Racial Balance Fund" and suggested that the district establish a 
task force for purposes of evaluating the school district's racial 
imbalance and developing an integration plan. GX 914; Tr. 4059-60 
(Sobel). In July 1970, two months after the Board adopted a 
resolution recognizing the need to address the problem of racial 
imbalance, GX 913, the district submitted an application for state 
financial aid for developing further plans for eliminating racial 
imbalance in addition to those steps which the district had already 
taken. GX 915. This application was^.granted and funds were 
provided to the district in September of 1970, just after the death
of Superintendent Mitchell. GX 916.

During the spring and sumner of 1970, Sobel also visited
several schools in Yonkers and met with various teachers and 
administrators. He concluded that various educational deficiencies 
existed at the district's predominantly minority, schools. Tr.
4072. upon discussing these problems and proposals for desegregat­
ing the schools,-however, Sobel was told by school officials that 
the community was opposed to desegregation of the schools. Tr.
4073, 4075. This community resistance was experienced first hand 
by sobel later that year when he returned to Yonkers to determine 
how the state money previously granted to the district was being 
used, sobel and Susan Morris, a vice president of the Council of 
PTA's, both recalled that at a Council of PTA's meeting held for



the purpose of discussing school desegregation issues, remarks were 
made which reflected community opposition to the concept of school 
desegregation, opposition which was based partly on the perceived 
decline in the quality of education which would result in predomi­
nantly white East Yonkers schools. Tr. 4076-77 (Sobel); Tr. 
5209-12 (Morris). This community resistance also was reflected in 
discussions which Sobel had with James Gallagher, the Acting Super­
intendent at the time. Despite the expressed concern of state 
officials that its funds were not being used as planned and that 
the Board not wait until a permanent replacement for Superintendent 
Mitchell was appointed before it began to address the problem of 
racial imbalance, Gallagher expressed his reluctance to pursue 
desegregation effo^Cs because of the interim nature of his 
appointment and community tesistahce to such'Isfforts. Tr. 4074-75 
(Sobel). As a result, efforts to develop comprehensive proposals 
for alleviating the increasing "racial "imbalance among the 
district's public schools were essentially discontinued.

2. NYU Report
The district's' shift in' priorities from racial 

desegregation to educational improvement characterized the early to 
mid-1970's. Among tfie'most comprehensive proposals for'improving 
educational opportunities and reorganizing the district's schools 
were those set forth in a 1972 report prepared by a study team from 
the New York University School of Education. The NYU Report was 
the result of a variety of problems which Superintendent Alioto 
recognized upon joining the Yonkers School District in 1971. 
Alioto recognized the inconsistent grade organization in the

Aoi .



schools, particularly at the elementary school level. He noted the 
limited accessability of occupational and vocational programs based 
primarily on the use of screening criteria at Saunders, the 
district's primary vocational education facility, and the limited 
availability of vocational and occupational programs at the 
district's regular secondary schools. In addition, he recongnized 
the inequality of educational opportunity within the district, 
particularly with respect to the inadequate facilities and 
inexperienced teachers which characterized many of Southwest 
Yonkers' predominantly or disproportionately minority public 
schools. Finally, . Alioto recognized the increasing racial 
imbalance in the schools and the need to address this condition.

Aa,. additional element of the school district's 
reorganization.plans involved the Gorton facility. The school had 
grown to be an increasingly minority facility as a result of the 
opening of Emerson Junior High School in 1963 and the resulting 
southern shift in Gorton's attendance zone boundary. During the 
late 1960*s and early 1970's, Gorton began experiencing a series of 
racial disturbances caused in part by increasing student 
dissatisfaction ,, with the. nature and variety of educational 
programs at the school, r .^oth of these conditions contributed to 
Gorton's reputation as a racially troubled and educationally 
inferior school. Black students protested the recognized 
inadequacies of the school's non-academic, or general, program (GX 
645; see also Alioto Dep. 70; GX 571) and complained that they 
were being steered into these programs by school officials. Tr. 
4305-08, 4366 (Barrier); Tr. 13009-010 (Dodson); Peace, Jr.



Stip. 11 6-8 . While many of the problems cited by students were 
addressed by the district in accordance with an agreement entered 
into among Gorton students and school officials, for example, 
improvements in Afro-American curricular offerings and the creation 
of secondary school Human Relations Councils, GX 568, the 
inadequacy of the school's general program, and complaints of 
steering of minority students into the program, persisted. Alioto 
Dep. 70; Tr. 3892-94 (Ross); Tr. 4308, 4366-67 (Barrier); GX 
571. These difficulties were compounded by the mixture of both 
junior and senior high school students at the school, a condition 
which had a negative impact particularly 2unong the junior high 
school students at the facility. GX 586; Tr. 10,992-93 
(Jacobson); Alioto Dep. 70-71.

..,,a , Ik ; ■'
Gorton's negative reputation i n c r e a s e d a s  the 

aforementioned conditions persisted. The school's unstable 
condition reached a peak in 1971 and 1972 when the presence of 
police officers in the building became a fairly common occurrence 
and Acting Superintendent James Gallagher moved his office to 
Gorton in order to deal with the disturbances at the school. Tr. 
4316-20 (Barrier). At the same time, the white student enrollment 
at Gorton began. to decline, from 1,147 students in 1970 to 938 
students in 1972, partly as a result of student fears concerning 
the continued disturbances at the school and the academic 
inadequacy of the Gorton general program. GX 570, 575, 584, 591, 
593, 595.

Superintendent Alioto's response to these various 
problems was essentially two-fold. First, Alioto hired James



Barrierf 3 blsck former police officer» to serve ss his Specisl 
Consultant for Community Relations. Barrier s primary
responsibility was to serve as a liaison between school officials 
and community members, with particular emphasis on communicating 
the concerns of the black community to school officials and 
alleviating the racial tensions at Gorton. Barrier also worked as 
a liaison between school officials and the police department and 
sought to minimize the presence of police at the school. Tr. 4314-
17 (Barrier); Alioto Dep. 6 6 .

Barrier was also instructed by Superintendent Alioto to 
gather information on the extent of racial imbalance in the 
schools. Soon after, however. Barrier was told by Alioto to cease 
work in this area; based on Alioto's discussions with community 
members and school^ officials, Alioto believed that it would be 
politically infeasible to proceed with desegregative efforts in the 
schools at that time. Tr. 4325-26 (Barrier). Alioto's discussion 
with Barrier was consistent with a viewpoint Alioto had expressed 
to other school officials as well. According to Board member 
Robert Jacobson,

' ’ • 1 r »
There is no question [Alioto] said it and he said it to many psople. He said it could never 
be sold in the Yonkers community. Any kind of 
totally city-wide racially balanced program 
would be politically infeasible.

Tr. 5054. Similarly, Dr. Morton Sobel recalled that in discussing 
the issue of school desegregation with Superintendent Alioto, he 
was informed by Alioto that "there was great community resistance 
and that it was unfeasible to try to develop a desegregation plan 
and then implement it." Tr. 4079. Alioto instead supported, and

^ \ o



dlsucssed with City officials, an approach to school desegregation 
which involved the use of scattered site housing within the city.

Alioto Dep. 16-17.
Second, in October 1971 Superintendent Alioto commis­

sioned the New Yort University School of Education's Center for 
Educational Research and Field Services to perform a study of the 
Yonkers public schools. The study team was asked to examine the 
physical capacity of school buildings, grade organization patterns, 
and educational program offerings, and was asked to make dVudent 
enrollment projections a. well, all with a view towards making 
recommendations for improving the structure and educational 
programs of Yonkers public schools. GX 115 , at Iv. The study team 
was not asked to, andu did not, address- the issue' of racial 
Imbalance in the schools. Tr. 1 3 ,0 6 5 -6 5 , i r ,0 9 3 ,  1 3 ,1 0 9 -1 5

(Pitruzzello). Members of the study team, including Dr. Philip 
Pltruzzello, its director, visited the schools and spoke with 
principals and staff prior to the preparation of their report.

in March 1972 , the New York University study team issued 
its report, "A Study of the Yonkers Public Schools: Facilities, 
Demography, Organlzstion.- GX 115 . The NYU Report noted the 
limited nature of vocational and occupational programs in the 
district and the educational desirability of decentralizing these 
programs throughout the dlatrlcfs high schools. The Report also 
noted the related inadequacies of educational offerings in 
particular schools, for example, the non-academic, non-vocational 
general program, particularly at Gorton, which provided students 
-with few options ... beyond the basic curriculum....- Id. at 36.



The Report then set forth several plans for addressing these 
problems, each including a number of overlapping recommendations. 
The primary recommendations fell into three general categories:

(1) A grade reorganization to a uniform K-5, 6-8 , 9-12 
grade structure. Under the district's then-existing grade 
structure, the schools lacked a consistent pattern of grade 
organization, with most sixth graders attending the district's 
elementary schools. Elementary schools included two K-3's, two K- 
4's, six K-5's, and twenty K-6 's, along with King Intermediate (4- 
6 ) School. The four regular high schools included two 9-12 schools 
and two 10-12 schools. Consistent with- Superintendent Alioto's 
expressed desire for reorganizing the district's grade structure, 
the NYU Report recommended that the district’reassign^ sixth graders 
to middle schools and expand the high schools to include ninth 
grade students. . ,

(2) A high school "variable access” plan. Under this 
plan, particular occupational programs would be distributed among 
the district's regular high schools so that each school would have 
a more comprehensive educational program. As part of this proposal, 
the North Yonkers (Roosevelt and Gorton) and South'Yonkers (Lincoln 
and Yonker^) high schools would be paired so that students at one 
school could attend the other school on its geographic "tier", at 
which particular occupational programs would be available. The 
Report recommended closing the High School of Commerce and 
distributing its occupational courses among the district's regular 
high schools, and converting the Saunders Trades and Technical High 
School into an Occupational Area Center at which students from

4l2



regular high schools could receive instruction in various advanced 
occupational programs. As an additional, alternative component of 
this proposal (Plan I of the Report), the Report suggested the 
conversion and physical expansion of Central Yonkers' Burroughs 
Junior High School into a districtwide high school at which 
technical and health programs would be offered. at 36-40. The 
Report also proposed that School 5, located within two blocks of 
Burroughs, be converted into a replacement middle school for 
Burroughs, with School 5 students being reassigned to Schools 16, 
17, 22, 24, and 25. Id. at 43.

(3) Reorganizing the district's Northwest Yonkers 
secondary schools. At the time the NYU Report was issued, Gorton 
was a combined junior and senior h^gh school facility, Emerson was 
a combined elementary and junior high school facility, and Commerce 
was an occupational high school. Among the NYU Report proposals 
were (a) the relocation of Gorton High School to Emerson and the 
relocation of Emerson Elementary and Junior High School to Gorton 
(Plans I (id. at 40, 46) and II (id. at 47)); and (b) the 
relocation of Gorton Junior High School students to Commerce (with 
Commerce's occupational^programs being distributed throughout the 
district's other.high schools) (Plan III (id. at 49)).

Late in 1972, the district conducted a two-day retreat 
for purposes of discussing the recommendations of the NYU Report. 
The contemporaneously prepared documents summarizing the opinions 
expressed at this conference reflect the controversial nature of 
the educational reforms proposed by the Report. GX 760-762. 
Virtually every facet of the school district's grade and program

4 i 3



structure was critically examined, a number of alternatives to the 
KYO Report proposals were developed and discussed. Each proposal 
involved a multitude of recopnised advantages and disadvantages, 
relating to educational wisdom, fiscal and political feasibility, 
community acceptance, space utilization, and racial impact. Prom 
these records, it is clear that the racial effects of the various 
proposals was a significant factor which was considered in 
evaluating the recommendations of the NYD Report and the 
alternatives suggested by the dlstrlcfs'own administrative staff.

Race-related concerns were frequently expressed with 
respect to the proposed relocation of Gorton'Junior High School 
students to a new commerce' Middle School. Specifically, the
probabllitf'that 'Co«m«ce’-.^'iid open SS a virtually all-black
middle schoi'rw«"t‘e V i t i ^ l y " ' W ^ " ‘« ^ ‘ rt'a-dls»dv.ntage of -the 
proposed movement oi Go'rCon studenti to that facility, while the 
district was committed to alleviating the unrest at Gorton by 
removing junior high school students from the facility, the 
segregative Impact of transferring them to Commerce was clearly 
foreseen. GX 760,' at' 44,9J« ' ("Comiiirce may become an all-black 
school") , 44,938 ("Commerce could 6 e all black"), 44,939 ( Commerce 
becoming b.sic.liy ̂ i black school")V OX 762, “at 42,820 ("Racial 
Distribution - all black"). As an alternative to the HYO Report's 
"Plan H I "  proposal, a task group suggested that students from 
Emerson could be assigned to Commerce along with Gorton Junior High 
school students and King sixth graders. OX 760, at 44,941. 
proposals were made which contemplated the reassignment of all or 
part of the Emerson Junior High School student body to Commerce.



GX 760, at 44,941; GX 761, at 42,808. This proposal was made for 
the purpose of improving the racial balance of Commerce and of West 
Yonkers schools in general, consistent with the widely supported 
elimination of the junior high school component at Gorton. See GX 
760, at 44,939, 44,944. The proposed reassignment of Gorton High 
School and graduating Emerson Junior High School students to a 
newly converted Emerson High School facility, along with the 
conversion of Gorton into the new Saunders area occupational 
center, was also supported as a means of improving Gorton's 
negative image, improving racial balance among West Yonkers 
schools, and .expanding the facilities available for occupational 
education programs. ^

The closins,Qf Emerson £lementary School, although not 
expressly^examined in this, regard, woul4, have been feasible from a 
capacity standpoint. In light of both the anticipated decline in 
elementary school enrollment and the proposed K - 6  to K-5 grade 
reorganization, the capacity of elementary schools in the Northwest 
Yonkers area, such as Schools 22, 16, 24, and 5, would likely have 
been sufficient to .accomodate the anticipated K-5 enrollment at 
Emerson. In 1973-74, Emerson bad 458 R-5 students} Schools, 22, 16, 
24 and 5 had available capacity for.anywhere from 483 (Phase II) to 
551 (Engineering Department) students. In addition, alternatives 
suggested by the district's task group contemplated either the 
construction of a new elementary school in the Emerson area or the 
reassignment of Emerson students to Schools 16 and 22, with School 
16 students being reassigned to Schools 9 and 25. GX 760, at 
44,941. The latter portion of this proposal in particular was



Id. at 44,944.
respite t.e teco^nized advantages of the proposal

the task otoup also teoognlsed that It would be convert Emerson, the tasR gro p
ww# i-h- anticipated resistance of tne problematic primarily because of the anticrpa

1 r*Y 760. at 44f946“47. 
Emerson community to the proposa . , ^4 of
specifically, school officials noted that the ^ - - - ^ a l l
Emerson Elementary School etudents would be po
Lpossible. and would cause an -uproar, because of that community s
resistance to being redistrict.d into neighboring
schools IS. ai. and as -  two of which (School. IS and
previously enro lled  students from the Emerson area. _
Officials also expressed concern regarding the travel distance

Middle school'students would have' to endure 
Which Emerson Middle Schoo  ̂ ranee between the
travelling to Commerce (maps indi

rft«ni*rce varies from approximately Emerson Middle School zone and Comm
one-and-a-half to four miles,. School officials noted that

mmunlty would also be opposed to the creation of a hlg 
smerson community ^^^^^tional criticism of the overall
school in the area. Id. An aaoii^

thrust of the , 7

imbalance are too prominent In this plan.- Id. at 44,9 .
another proposal for alleviating the Corton situation

f„volved the reassignment of Corton dunior High °

.Merson. hlioto Oep. n ,  Tr. s m  ^
(Siragusa). This proposal was considered superior the
Report's recommended use of Emerson as an expanded high sc oo ^
terms of the adeguacy of Emerson's physical facilities, while a so

41 (p



preserving the previously recognized benefits of relieving Gorton 
of its junior high school student population. This plan, however, 
Slso would have entailed the reassignment of Emerson Elementary 
School students to neighboring schools in Northwest Yonkers, a 
proposal Which, as noted previously, was viewed as problematic 
because of likely community opposition to such a plan.

The high school variable access proposal was equally 
controversial. Among the stated advantages of the proposal were 
the expansion of occupational education opportunities for students, 
improvement in the school dlstriofs racial balance, and the 
minimisation of Gorton's negative Imag- and the concomitant 
increase in west Yonkers property values. GX 760, at 4 4 ,9 3 5 . 
Among the dlsadvangates recognised by school officials were the 
transportation burdens (time, cost, distance) Involved, the 
elimination of the Saunders self-contained concept of providing 
vocational and occupational education instruction in one-facility, 
administrative and logistical difficulties, and the anticipated 
community opposition to the plan and its negative Impact on East 
Yonkers property values. Id. at 44,936, 44,947,„44,953. A general 
resistance to change on the part of the.community- (and Saunders and 
Commerce alumni in particular) was considered as- an impediment to 
successful implementation of the variable access plan. id. at 
44,936; GX 761, at 42,811.

in January 1973, four public hearings were held to 
discuss the NYU Report proposals. The recorded summaries of these 
hearings reveals strong community opposition to the proposals. GX 
767, P-i 57-21, 57-23. Much of the opposition concerned the

4 H



proposal to close Saunders and the High School of Commerce and to 
decentralize their vocational and occupational education programs 
throughout the district's regular high schools. In particular, 
community members expressed concern regarding the financial burdens 
which the decentralization of vocational and occupational programs 
would entail, as well as the transportation burdens which would be 
involved with respect to the proposed use of Saunders as an area 
occupational center. Similar transportation concerns were 
expressed with respect to the variable access component of the plan 
and the proposed conversion of School 5 from an elementary to 
middle school facility.-^^ Written statements and notices of 
community members also reflected concern with the perceived "mass 
busing* called for by tliê  Report;’''* GX 765, 766; 76»; This 
expression of opposition' to busing was consistent with the 
Roosevelt High School (5% minority) community's expression of 
opposition two years earlier to the possibility of busing Roosevelt 
students to Lincoln High School (1% minority). SB 861.

Some recognition of the" variable access proposal's 
racial implications" was expressed' at the hearings. One parent 
interpreted the "proposal" simply as an attempt to improve racial 
balance. Another Northeast Yonkers resident"suggested that high 
schools be paired on a north-south, rather than west-east, basis, 
based on the perceived lesser transportation burdens of such an 
alternative. P-I 57-23, at 44,660. While this suggestion was not 
explicitly race-related, most Northeast Yonkers residents would 
have endured a relatively lengthy trip regardless of the direction 
of transportation under the variable access plan. Although one

41?”



reason for this suggestion may have been the perceived disparity in 
the educational quality of the district's East and West Yonkers 
high schools, Tr. 5217-23 (Morris), another parent recognized that 
"[i]f we divide East and West there would be a large racial
imbalance." P-I 57-23, at 44,662.

The proposed reorganization of Emerson and Gorton also 
provoked opposition from community members. Opposition was 
expressed at the hearings to any proposal for reassigning Emerson 
students to Gorton, with parents suggesting they would refuse to 
send their children to Gorton. GX 767, at 42,842. Opposition to 
this proposal was articulated in other ways as well. For example, 
a flyer entitled "SAVE EMERSON" warned that converting Emerson into 
a secondary* school for Emersonr and Gorton students- would mean that 
"Students who attend Gorton would, therefore, come to the [Emerson] 
school," GX 768 (emphasis in original), and that Emerson Elementary 
School students would’be'reassigned to Gorton or other schools in 
the area. Id.

The racial component of the opposition to the 
Emerson/Gorton reorganisation proposals was recognized by several 
witnesses at trial. Board members recognized that racial concerns 
existed with respect'to tJfe proposed Gorton/Emerson redistricting, 
a concern which was consistent with the racially related concerns 
arising out of the redistricting of primarily white Homefield 
students to Gorton as part of the 1973 school reorganization. Tr. 
5057-58 (Jacobson); Tr. 5509-10 (Minervini). PTA President Susan 
Morris also noted that racial opposition to the NYU Report 
proposals existed particularly with respect to the Northwest



Yonkers redistricting proposals. Tr. 5221-22. Board member 
Rosemarie Siragusa supported the proposed transfer of Emerson and 
Gorton students to a new Commerce Middle School but recognized the 
community opposition to that proposal, opposition which was 
expressed in terms of the safety of Emerson students having to 
travel to that area of the city as well as the lower academic 
standards which these students would experience as a consequence of 
that proposal. Tr. 5430-37.

Two weeks after the' last public hearing on the NYU 
Report, Superintendent Alioto presented his 1973 Reorganization 
Plan to the Board.-GX 114. In general, the Plan contained the least 
drastic and most segregative proposals which had been suggested 
both in the NYD^ Report^ itself-^nd,. as alternatives to the Report 
proposals. The Plan recommended reorganizing the school district's 
grade structure to<̂ a. uniform K-S, 6-8 , 9-12 system, along with the 
addition of̂  a pre-K program in the district's elementary schools. 
The Plan rejected the NYU Report's variable access approach to 
expanding vocational and occupational education opportunities. 
Instead, the Plan provided for the rehabilitation of, and additions 
to, the district's bigh^ school facilities ̂ Hncluding Saunders) and 
the placement-of m>>limited number of additional vocational and 
occupational programs in - each of the district's regular high 
schools. The Plan recommended the addition of automotive shops and 
commercial lab space at Gorton, the addition of five occupational 
facilities and rehabilitation of science labs at Roosevelt, and the 
addition of occupational and automotive shops at Lincoln. 
According to the Plan, the new Yonkers High School, scheduled to

4-ao



open the following year, would be designed to include space for 
occupational facilities. As for the district's vocational schools, 
the Plan reconunended the closing of the High School of Commerce and 
the decentralization of its commercial programs throughout the 
district's other high schools, and the rehabilitation and expansion 
of the Saunders facility, including the transfer of some of 
Commerce's technical programs (e.g,, data processing, food trades, 
fashion design) to Saunders. According to the Plan, the purpose of 
the occupational education proposals was to provide academic 
students with an opportunity to obtain "hands on” experience 
previously unavailable in the district's high schools and to better 
prepare the non-academic student foe the world of work. GX 114, at
22-23. ' ?C r  r »r:< -4 ■ s

The^,,1973 Reorganization Plan also, proposedl., two 
significant attendance zone^ boundary changes,-^nd^ related student 
reassignments. First, high school students and graduating Emerson 
Middle School students from the predominantly white Homefield 
neighborhood were reassigned from East Yonkers' Roosevelt High 
School (6 % minority) to. West, Yonkers' Gorton, High School (24% 
minority). The reassignment of. Roosevelt students involved the 
redrawing of the attendance isone, boundary dividing the Roosevelt 
and Gorton attendance areas. The simultaneous reassignment of 
Emerson graduates was in part the result of this boundary change 
(i.e., for Emerson graduates living in the Homefield area) and in 
part the result of the overall conversion of the district's schools 
to a K-5, 6-8 , 9-12 grade structure (i.e., for other Emerson 
graduates). Second, the Plan recommended that Gorton Junior High



School students be transferred to the Commerce facility. The Plan 
did not recommend the transfer of students from any other middle 
school to Commerce.

Superintendent Alioto concluded by proposing a three- 
year period for implementation of the reorganization plan. In 
March 1973, the Board approved the reorganization plan. GX 114, at 
2 .

As a result of the district's implementation of the 1973 
Reorganization Plan rather than the NYU Report proposals, the 
evolving segregation of the district's schools remained 
substantially unaltered. No student movement between the distrct's 
regular high schools was effectuated despite the recognition that 
racial integration would be an advantageous result,jof the variable 
access plan. The Saunders facility remained intact despite the 
realization that the school's physical Inadequacies and screening 
process was presently resulting in the inaccessibility of 
vocational and occupational education opportunities to many 
minority students. The racially balanced High School of Commerce 
was closed and was replaced by a predominantly minority middle 
school. No desegregative reorganizations were effectuated at the 
elementary school level, as would have occurred under some of the 
NYU Report proposals. •• i •

While substantive differences between the NYU Report and 
the 1973 Reorganization Plan give rise to some doubt about the 
extent to which educational motives were responsible for the 
rejection of the NYU Report proposals, the 1973 Reorganization Plan

4aa



itself was not devoid of educational justifiability. In issuing 
the Plan, Superintendent Alioto noted that, in his opinion, the NYU 
Report "overemphasize[d] the occupational training aspect of our 
instructional programs” and that he preferred instead to "focus on 
improvements that would affect both the academic and vocational 
training aspects of the Yonkers educational system." GX 114, at 
10. In addition, while the closing of the High School of Commerce 
resulted in the loss of the district's most racially balanced (21% 
minority) high school, the decentralization of Commerce's technical 
and commercial programs was a valid educational objective which 
benefitted^ all of the district*s other high schools and was in fact 
recommended in the NYU Report. The decision to maintain the bulk 
of the dls’trlc?tf*̂ S’'’vocational programs i n ' the Saunders facility 
rather than* distribute? them* dlsttfctwide ‘ is* partly a matter of 
educational philosophy' (the self-contained vocational school 
versus the comprehensive high school) over which school officials 
may and did legitimately disagree. School officials did recognize 
the advantage of making these programs more accessible to a larger 
percentage of students, the'‘recognized lack of minorities at 
Saunders, and the repeatedly acknowledged physical inadequacies of 
the Saunders facility^'’* The plan, however, along with Superinten­
dent Alioto*s simultaneous efforts to alleviate the racially 
disproportionate impact of the Saunders screening process, see 
SCHOOLS IV.C supra, was designed to address each of these concerns, 
albeit in more limited fashion than the NYU Report proposals.

The reasons underlying the rejection of the NYU Report 
proposals and adoption of the 1973 Reorganization Plan, however, go

4 2 3



beyond those which were stated in the Plan itself. Indeed, 
previously expressed concerns of school officials which gave rise 
to the NYU Report itself are somewhat difficult to reconcile with 
the plan eventually adopted by the Board. Both Superintendent 
Alioto and Board member Robert Jacobson recognized that the 1973 
Reorganization Plan, in recommending the partial duplication of 
occupational and vocational programs in each of the district's high 
schools, was more costly than the NYU Report p r o p o s a l s . T r .  

11,074 (Jacobson); GX 114, at 36. While the district's willingness 
to expend more than would have been required under the NYU Report 
is not inherently unjustifiable, it is somewhat at odds with the 
prior characterization of various aspects of the NYU Report as 
advantageous (wh«n coats would be lower) or disadvantageous (when 
costs'would b«"higher). GX 760r at 44,9^35-37, 44,939, 44,945. In 
addition, the NYU Report proposals would have afforded substantial­
ly greater opportunity for equalizing educational opportunities for 
students attending the aca<^emically troubled Yonkers and Gorton 
High Schools, particularly for students in- the schools' general 
programs, and' would have"resulted in more efficient and economical 
facility utilization with respect to the providing of vocational 
and occupational':;education programs. Tr. 13,060-67 (Pitruzzello) ; 
GX 760, at 44,395.

The testimony of school officials is consistent with the 
concerns expressed at the time of the 1973 Reorganization Plan and 
demonstrates that the rejection of the NYU Report proposals was 
substantially the result of the perceived political infeasibility 
of its adoption and implementation based primarily on the

4 ^ ^



conununity's opposition to these proposals. According to Assistant 
Superintendent Stanley Schainker, a number of City Council members, 
in addition to community members and Saunders' staff and alumni, 
opposed the NYU Report recommendations, particularly the proposed 
conversion of Saunders into an area occupational center and the 
decentralization of its vocational and occupational programs. 
Schainker Dep. 39-45. Both Schainker's and Superintedent Alioto's 
description of the extent to which political considerations were 
taken into account in the administration's formulation of the 1973 
Reorganization Plan reflect that the rejection of the NYU Report 
proposals was based in significant part on the perceived inability 
of obtaining City Council budgetary approval of the plan. Alioto 
Dep. 42; Schainke;; Dep. 44;̂ ..see, also gx 17Q.j . testimony also 
demonstrated that political, considerations influenced not only the 
district's proposals concerning....Saunders, but. also the entire 
reorganization plan, in that the administration concluded that its 
insistence on widely unpopular proposals, apart from their 
educational merit, would endanger all other aspects of the plan. 
Alioto Dep. 4lT43r.,, Schainker Dep. 40-45.

The desegregative consequences . of the NYU Report 
proposals were recognized toth as an advantage and an impediment to 
their implementation. The racial implications of student movement 
between East and West Yonkers high schools were recognized by 
school officials as well as community members. Community members 
repeatedly voiced their opposition to "mass busing" even though the 
NYU Report proposals entailed no mandatory or involuntary student 
reassignments and even though many students were currently using

4 a S



similar methods of transportation to attend high school. Although 
the interschool transportation called for under the variable access 
proposal was characterized as unnecessarily disruptive and 
burdensome and was consistent with previously expressed community 
opposition to non-desegregative busing, several school officials 
who were involved in the evaluation of the NYU Report proposals and 
were present at the public hearings concluded that opposition to 
the student reassignment provided for under the variable access 
proposal was also race-related in nature. - Tr. 5222-24 (Morris); 
Tr. 5057-58, 11,073-74 (Jacobson); Alioto Dep. 45; Schainker 
Dep, 100-02; see also Tr. 4189-91 fCarman) Schools officials 
also acknowledged that such concerns influenced the school 
district's' rejection'o^’the NYU Report proposals^and its adoption 
of the 1973 Reorganisation Plan,'despite the recognized educational 
and fiscal validity of the NYU Report proposals; Tr. 5057-58 
(Jacobson); Schainker Dep. 101-02.

Other concerns, although expressed in neutral terms, also 
carried with them race-related implications or overtones. Concerns 
regarding' the decreased quality of education that would have 
resulted from the west to east* movement of students, Tr. 5220 
(Morris), while'normally'somewhat difficult to accept as entirely 
race-neutral, are even less credible in the context of the variable 
access proposal, where voluntary interschool movement of students 
would have occurred for purposes of receiving instruction in 
occupational and vocational education courses, rather than in 
traditional academic subjects such as English or math where 
disparities in achievement levels (as measured by achievement test



scores) have existed among white and minority students in Yonkers 
public schools.

Another reason for the rejection of the NYU Report 
variable access proposal was the educational disparity between East 
and West Yonkers schools and the consequences which school 
officials believed would flow from implementation of a variable 
access plan in light of this disparity. Superintendent Alioto 
recognized the possibility that implementation of the variable 
access plan at that time would have resulted in white flight from 
Yonkers public schools. According to Alioto, given the disparity 
in the educational quality of the district's high schools, the 
movement of students from Bast to West Yonkers schools would have 
resulted-in th«< "abandonment of the publicsschool»'by the middle 
class and, therefore, would be counterproductive." Alioto Dep. 46- 
47. This concern wae particularly^ evident with respect to the 
proposed Roosevelt-Gorton tier, in view of the recognized 
inadequacy of Gorton's general program as well as the recent 
disturbances at the school. While some of the disruptiveness at 
Gorton was remedied by removing junior -high school students from 
the school, it cannot be said that the administration's evaluation 
of the community's perception of Gorton, and the likely 
consequences of this perception, was unreasonable; the existing 
disparities in the non-curricular aspects of the educational 
programs at Yonkers high schools made Alioto's assessment of the 
likely community response to the variable access plan a realistic 
one.

The record as a whole persuades this Court that at the

^ 3 1



time of the adoption of the 1973 Reorganization Plan, the Board's 
acts and omissions were designed in part to delay any comprehensive 
attempt to alleviate racial imbalance until such attempts could 
more readily be accepted by the community. The 1973 Reorganization 
Plan can best be characterized in the words of its principal 
drafter, as a comparatively limited, non-desegregative "first step” 
in reorganizing the structure and equalizing the educational 
opportunities afforded in the Yonkers public schools. Alioto Dep. 
47; see also Tr. 5058 (Jacobson). The extent to which the Board's 
conduct in this instance represents part of a consistent and 
deliberate pattern of perpetuating racial imbalance rather than a 
sincere effort to improve the chances of achieving successful 
school desegregation in future years is more meaningfully evaluated 
by exraining the Board's subsequent encounters with proposals for 
desegregative reorganization of the Yonkers public schools.

The overwhelming weight of credible evidence 
demonstrates that the Board's decision to transfer Gorton Junior 
High School students to Comnerce was■a known segregative'act. The 
contemporaneous statements and testimony of school officials 
establishes that absent^ the reassignment of- Emerson Junior High 
School students to Commerce, the new Commerce Middle School was 
very likely to be a predominantly minority school. Tr. 5437 
(Siragusa); Tr. 12,660-62 (Dodson); see also GX 760, at 44,936, 
44,938, 44,939; GX 762, at 42,820. Although Superintendent Alioto 
testified that there was a "good opportunity to integrate" Commerce 
upon its opening, Alioto Dep. 73-74, this conclusion was based



primarily upon the school's previous ability, as a districtwide 
occupational education high school, to attract a substantial white 
female population to the school's special technical progreuns and is 
somewhat inconsistent with his earlier recognition that his staff 
had concluded that Commerce would be a predominantly minority 
school. See id. at 70-71. In any event, this testimony is not 
consistent with the weight of other evidence demonstrating the 
administration's contemporaneous recognition that the reassignment 
of Gorton Junior High School students to Commerce would result in
the creation of a predominantly black school.

Commerce did in fact open in 1973 as. a predominantly 
minority middle school, with a 53% minority enrollment (as compared 
to Gorton Junior High School's 41% minority enrollment the year 
before, and the 22% districtwide average). During Commerce Middle 
School's first year, the facility housed both reassigned Gorton 
Junior High School students as well as students still attending the 
High School of Commerce's occupational education programs. The 
middle school's attendance zone was the same as Gorton's previous 
junior high school boundaries.

One year, later. Commerce Middle School's attendance 
zone boundary was expanded southward, extending as far south as the 
Getty Square area in the heart of Southwest Yonkers. As a result, 
additional students from the Longfellow and Hawthorne attendance 
zones were reassigned to Commerce, a decision which foreseeably 
aggravated the already significant racial imbalance at Commerce. 
GX 557. At the same time, the High School of Commerce was finally 
closed and its occupational programs were distributed to the



district's regular high schools and to the Saunders Trades and 
Technical High School. Commerce's minority enrollment increased in 
1974 to 70%, and subsequently increased to 77% by 1975-76, the year 
in which the Board decided to close the school.

The extent to which the opening of Commerce Middle School 
was an intentionally segregative act requires a more detailed 
Inquiry into the alternatives considered and rejected by the Board. 
As an initial matter, we note that the decision to remove Gorton's 
junior high school students from the Gorton facility is not a 
matter of dispute. Based on the increasingly negative image of 
Gorton and the fact that the disturbances at the school were partly 
the result of the presence of junior high school students at the 
facilityr the Board concludedr:that'< the reassignment of Gorton's 
junior high school students elsewhere in the district was 
necessary. What is disputed, ho%rever, is the manner in which these 
students, were reassigned.

The proposed reassignment of all of Gorton's and 
Emerson's junior high school students to Commerce and the 
conversion of Emerson into a high school facility was recognized as 
troublesome in a number of race-neutral respects. The conversion 
of Emerson into a high, school facility for Gorton High School and 
graduating Emerson Junior Higb̂  School students was uniformly 
recognized as problematic based on the inadequacy of the Emerson 
facility as a high school. This proposal would also have been 
problematic in view of the substantial increase in the number of 
students who would have been enrolled at the school. While Emerson 
enrolled 1,296 students (618 in elementary school) in 1972-73,

4 3 0



Emerson would have had a high school enrollment of approximately 
If400 students the following year (the enrollment at Gorton High 
School in 1973-74) under the aforementioned proposal. Addition­
ally, the reassignment of Emerson Middle School students from the 
northernmost portions of the Emerson zone would have entailed a 
travel burden, in terms of both distance and terrain, which would 
have been among the most burdensome in the district. SB 627; GX 
760, at 44,946. (The additional travel distance for students 
reassigned from Gorton to Commerce was relatively small in 
comparison). Finally, it is unlikely that community opposition to 
the closing of Emerson Elementary School and the reassignment of 
its students to neighboring schools was related to race. Portions 
of the Emerson Elementary School zone had previously been included 
in the attendance zones^ for Schools 22 and 16, both of which were 
still virtually all-white (99% and 97%, respectively) in 1972-73. 
Schools 5 and 24 also were predominantly white (14%- and 24% 
minority, respectively) and relatively free of the educational 
inadequacies of. many Southwest Yonkers elementary schools; 
reassignment to cither of these schools was thus- unlikely to 
engender significant race-related opposition. Only to the extent 
that reassignment of Emerson students to School 25 (63% minority) 
was anticipated would a significant potential have existed for 
race-related community opposition to the closing of Emerson 
Elementary School.

The difficulties which attended the above proposal, 
however, do not similarly explain the Board's refusal to implement 
other feasible alternatives to the creation of an additional

431



racially imbalanced middle school in Southwest Yonkers. The 
proposed reassignment of a portion of Emerson's 8% minority junior 
high school student population to Commerce would have substantially 
reduced the segregative effect of the Commerce opening and would 
have obviated any need to redraw the Longfellow or Hawthorne 
attendance zones so as to assign additional students to the 
underutilized Commerce facility. Under this proposalf the Emerson 
facility could have continued to operate as a combined 
elementary/junior high school facility and thus would have avoided 
the substantial community opposition either to closing the 
elementary school or to converting Emerson into a high school 
facility. This proposal also would have avoided the capacity and 
facility-related ̂ difficulties of* converting Emerson into a high 
school facility; Gorton could have continued to serve, as it in 
fact did, as the Northwest Yonkers high school. Travel-related 
burdens of Emerson students reassigned to Commerce could also have 
been minimized by reassigning only those students living in the 
southernmost portion of the Emerson Junior High School zone. The 
distance which such students would have had to travel to attend 
school at Commerce would ̂have** been considerably less than that 
travelled by many of 'East Yonkers* ̂ Whitman, Burroughs and Twain 
junior high school students at that time. In light of the above, it 
is reasonable to infer that race-related concerns of the community 
contributed to the failure to implement this proposal. Tr. 5221-22 
(Morris); Tr. 5509-10 (Minervini); see also Tr. 5057 (Jacobson).

The decision to reassign Gorton students to Commerce, 
rather than Emerson, is also difficult to credibly explain without

4 3 2



regard to the obvious racial consequences of such a decision. 
While Emerson may have been considered inadequate as a high school 
facility for an increasing number of students, we are not similarly 
convinced that this facility would have been inadequate as a middle 
school for a lesser number of students. The school was originally 
designed to be convertible into a junior high school facility, SB 
851, was recognized as a beautiful and spacious facility by at 
least one Board member, Tr. 5431 (Siragusa), and was considered an 
"excellent junior high school facility" by members of the Gorton 
community as well. GX 605 (1967 letter to Board). The repeated 
proposals, made by school officials and community members alike, to 
close Emerson Elementary School and convert Emerson into an 
exclusively middle school facility also suggest that the 1973 
proposal to reassign Gorton students to Emerson was feasible. See, 
e.q., GX 98, at 16 (1977 Phase II proposal), 750 (1977 proposal by 
Director of Pupil Personnel Jerry Frank), 779 (1976 proposal by 
Yonkers NAACP President Winston Ross). We are thus not persuaded 
that Emerson was unsuitable as a middle school facility and thus
unable to accomodate the reassignment of Gorton students to that*
school. W

The alternative of reassigning Gorton students to Emerson 
was also feasible from a capacity standpoint. From 1967 to 1972, 
the Emerson facility housed over 1,300 students every year, 
reaching a high of 1,394 students (699 elementary, 695 junior high) 
in 1967. Under the aforementioned reorganization proposal, 
Emerson's enrollment would have decreased from 1,286 to approxi­
mately 1,000 students (the combined middle school enrollment at

4-33



Emerson and Commerce for 1973-74) , with a probability of further 
decreases in future years due to anticipated overall declines in 
student enrollment. GX 115, at 125. To the extent that Emerson 
would nevertheless have been overcrowded as a result of the 
reassignment of Gorton Junior High School students, some of this 
overflow could have been fairly easily eliminated by reassigning 
some Gorton students to the nearby, recently opened Burroughs 
Middle School facility, whose enrollment had declined from 1,143 
(1970-71) to 731 (1972-73).

The district's desire to avoid the additional "tensions" 
which the proposed reassignment of Gorton students to Emerson might 
have created, Alioto Dep. 71, is not inconsistent with the 
conclusion that racial concerns were a factor in the Board's 
failure to adopt this proposal. On the contrary, a number of 
subsequent incidents which occurred at Emerson confirm the 
existence of such concerns and their recognition by school 
officials. During the year in which the Board approved the 1973 
Reorganization Plan, over one-third of the fifty-four minority
students at Emerson Middle School were transferred to Burroughs in

)
response to race-related concerns of the Emerson community 
regarding the presence of minority students at the school. 
According to Superintendent Alioto and James Barrier, this transfer 
was effectuated for the purpose of insuring the safety of minority 
students who had been enrolled at the school in light of 
altercations which had occurred between students at the school and 
the Emerson community's opposition to the attendance of minority 
students at Emerson. Tr. 4333-38 (Barrier)?— '̂ Alioto Dep. 67-68.

4 3 ^



While these minority students were assigned to predominantly white 
Burroughs Middle School (9% minority) in Central Yonkers, the 
segregative nature of the reassignment insofar as Emerson was 
concerned was consistent both with the school district's 
recognition of race-related resistance to any significant 
integration of Emerson students with minorities from the West 
Yonkers area, and with the race-related tensions which arose at 
Emerson three years later when minority students from Commerce were 
reassigned there. Tr. 2562-65 (Guzzo).

Superintendent Alioto's testimony that the reassignment 
of Gorton students to a separate facility was designed to provide 
them with an improved educational opportunity is not a persuasive 
explanation for the segregative^opening of Commerce. First, this 
explanation is troublesome in light of the anticipated predomi­
nantly minority nature of the school and the attendant educational 
problems which typically existed at_such schools —  problems which 
Alioto recognized with respect to other Southwest Yonkers schools, 
Alioto Dep. 47-49, and which were quick to materialize at Commerce 
itself. GX 559, 561.. Second, the primary reason underlying the 
removal of Gorton^Junior High School students from the Gorton 
facility was the undesirable mixture of junior and senior high 
school students in the same school; the reassignment of Gorton 
students to Emerson would not have resulted in a similar problem. 
Third, there is little evidence to suggest that Gorton students 
would not have received an improved educational experience at 
Emerson. Finally, Alioto's explanation does not dispel the 
otherwise persuasive showing that racial considerations were a

‘̂ 7 ) 5



significant impediment to the reassignment of Gorton students in 
any desegregative fashion.

The Board's reliance upon two educational report 
recommendations in adopting the proposal to move Gorton students to 
Commerce does not compel a contrary conclusion. The NYU Report 
itself regarded the plan in which this particular proposal was 
contained (Plan III) as the "least desirable" plan because of its 
inconsistency with the educationally-related proposals suggested 
elsewhere in the report. GX 115, at 52. More significantly, 
neither this report nor the 1969 Master Plan for Occupational 
Education, GX 646, considered the racial impact of such a proposal, 
the potential community opposition to such a proposal and the 
reasons therefor, or the Board's reasons for implementing this 
proposal as against feasible alternatives.

In sum, we find that racial factors played a significant 
role in the Board's segregative opening of Commerce Middle School. 
Cf. NAACP V. Lansing Board of Education, supra, 559 P.2d at 1055-56; 
Arthur V. Nyquist, supra, 415 F.Supp. at 934-36. The opening of 
the Commerce Middle School certainly did not reverse, and indeed 
the reasonable inference is that it reinforced, the image of

• r
Southwest Yonker-s schools as inferior and predominantly minority 
schools, particularly in the minds of Northwest Yonkers residents 
whose children avoided attending school with the former Gorton 
Junior High School students for several years longer than would 
otherwise have been the case. The opening of Commerce Middle 
School was consistent with other segregative actions —  the 
rezoning of white students from School 1 to School 22; the transfer

42>C>



of Runyon Heights students from Emerson to Burroughs; the pattern 
of segregative attendance zone changes between Schools 16 and 25 —  
which preserved for many years the ability of Northwest Yonkers 
students to attend virtually all-white public schools.

The Board's decision to redistrict the Homefield 
neighborhood is not inconsistent with our findings with respect to 
both the segregative opening of Commerce and the rejection of the 
NYU Report's variable access proposal. The stated reasons for the 
Homefield redistricting related to improving educational and 
program coordination and alleviating overcapacity at Roosevelt. GX 
744; SB 167. The overcapacity explanation is confirmed by 
numerical evidence: in 1972-73 Roosevelt had 1,901 students and 
was thus surpassing its recommended capacity;^ Gorton, on the other 
hand, had only 945 high school students and substantial space as a 
result of the reassignment of its junior high school students to 
Commerce. Other evidence suggests that the redistricting was also 
designed as a desegregative measure. A school administration task 
group recommended a similar redistricting proposal as an alterna­
tive to the NYU Report, analternative which was considered 
advantageous from a desegregative perspective. GX 760, at 44,941, 
44,944, 44,948 (redistcicting Roosevelt students to West Yonkers 
schools "gets more whites into the districts. The only way to save 
the west side of the city from turning entirely black..."). Two 
school officials similarly recalled that the Homefield redistrict­
ing was implemented in order to improve the racial balance at 
Gorton. Tr. 2535 (Guzzo); Tr. 9839-40 (Minervini).

The Homefield redistricting, however, was not fully



implemented the following year. Although the boundary lines for 
North Yonkers high schools were redrawn in 1973, the district 
allowed some students to continue attending Roosevelt the following 
year. Thus, while seventy-two students from the Homefield area 
attended Gorton in 1973-74, thereby reducing the racial imbalance 
between North Yonkers' high schools, sixty students continued to 
attend Roosevelt, and thirty-seven of them attended despite the 
district's normal policy of permitting only "last grade" students - 
- here, seniors at Roosevelt High School —  to continue attending 
their former school in the aftermath of a school zone change. Tr. 
13,444-45, 13,450-51 (Frank). While no direct evidence was offered 
to explain the district's reasons for this policy departure, 
community members had-strongly opposed'the redistricting, citing a 
variety of concerns including transportation burdens, disparities 
in educational quality,- and the types of students who attended 
Gorton. GX 191, 575, 579. Several school officials also ack­
nowledged that residents of the Homefield community had expressed 
what they considered to be partly race-related concerns regarding 
this redistricting planip' Tr. 5060-61 (Jacobson); Tr. 9839-40 
(Minervini); see also Tr. 4421 (Butler). Thus, although the 
effect of this policy departure was relatively short-lived —  only 
eleven or twelve students with Homefield addresses^^^ have attended 
Roosevelt rather than Gorton since 1973 (Tr. 13,444-48 (Frank)), 
the delayed implementation of this reassignment is consistent with 
the Board's contemporaneous rejection of all other desegregative, 
more comprehensive reorganization proposals for Yonkers public 
schools.

4^3'



3. Phase II
The Board’s most serious consideration of a proposal to 

desegregate the Yonkers public schools began in 1977 when Superin­
tendent Robitaille's administration introduced the "Phase II" 
reorganization plan. This plan was designed to address the many 
problems, including racial imbalance, that remained largely 
unresolved after the implementation of the district's fiscally 
motivated school closings of the previous year. In order to 
properly evaluate the reasons for the Board's failure to adopt the 
desegregative aspects of Phase II, and the nature of the community 
opposition allegedly responsible therefor, a detailed description 
of Phase II is in order.

The Phase II plan was designed to address a variety of 
problems afflicting the Yonkers public schools: financial 
constraints resulting from the fiscal crisis of the prior years; a 
continuing decline in student enrollment within the district, due 
primarily to the declining birth rate of the last several years and 
the loss of students to private and parochial schools; the 
resulting underutilization of school facilities within the 
district; and racial imbalance throughout the school district.

The plan's recognition of the multifaceted problems 
affecting the school district mirrored the recommendations of the 
Task Force for Quality Education which, in June 1977, issued its 
final report. The report recognized the racial segregation of many 
of the district's schools and attributed this fact to "segregated 
housing patterns, socioeconomic deprivation, and systematic 
racism," GX 938, at 2, the last of which referred to societal



attitudes. Tr. 8518 (Keith). The Task Force urged the Board to 
consider the school district's fiscal, enrollment and racial 
problems "not as separate problems, but symptoms of the ailment of 
a troubled school district." GX 938, at 7. The methods 
recommended for reducing racial imbalance included redrawn 
attendance zone lines, school closings (including the use of 
district-provided transportation for reassigned students), feeder 
schools (so that elementary school students could all attend the 
same middle and high school), specialized high schools, human 
relations workshops, and increased hiring of minority faculty and 
staff. Id. at 7-11.

The brief history of the Task Force was marked by events 
which presaged the overwhelming community opposition to Phase II. 
The initial announcement of the committee's formation excluded any 
mention of integration based on a determination by Task Force 
members that its inclusion would arouse community hostility towards 
the Task Force’s efforts. Tr. 3695 (Ross). The Task Force held 
numerous public meetings during December 1976 and the early months 
of 1977 despite similar concerns regarding the community opposition 
which such meetings might engender. Tr. 3748-50 (Ross). At these 
meetings, the anticipated resistance materialized. In addition to 
expressions of community opposition to busing, GX 935, East Yonkers 
community members expressed concern that the transfer of West 
Yonkers students to their schools would lead to a decline in 
educational standards and student achievement and would create 
disciplinary problems in their schools. Tr. 3613 (Ross, Task Force 
member); Tr. 5381-82 (Tobin, Task Force member); Tr. 12,978-80



(Dodson). Written concerns were also expressed to school officials 
that the Task Force was unduly concerned with racial imbalance and 
not sufficiently interested in improving the overall quality of 
education in Yonkers public schools. P-I 59-43, 59-44. In 
general, the work of the Task Force was greeted with less 
enthusiasm and support as time progressed, due primarily to the 
school district's fiscal emergency, see SCHOOLS IV.A.3.b supra, and 
changes in Board personnel, see SCHOOLS V.C infra. Upon issuing 
its report in June 1977, the Task Force was discharged.

In August 1977, Superintendent Robitaille and his admini­
strative staff issued the "Phase II School Reorganization" plan. 
GX 98. Phase II incorporated some of the Task Force's 
recommendations^^ and, like the Task Force's Report, recognized 
the interrelationship between the school district's fiscal 
enrollment, utilization and racial problems. The plan's 
recommendations included:

(1) a reorganization of the district's schools from a R- 
5, 6-8, 9-12 to a K-6, 7-8, 9-12 grade structure, (i.e., moving 
sixth graders back into the elementary schools) , a proposal de­
signed in part to better utilize the district's school facilities;

(2) the closing of three of the school district's seven 
middle schools (Longfellow, Fermi, Burroughs) and the concomitant 
elimination of the K-6 portion of the Emerson Elementary/Middle 
School —  recommendations made possible by the proposed grade 
reorganization described above;

(3) the relocation of the Sounders Trades and Technical 
High School to the Burroughs Middle School facility, a proposal 
prompted by the physical inadequacies of the Saunders facility and

M l



the InfeasiblUty of conetruotin, a new Saunders facility,
(4) the Closing of school 6 (98. minority), with a con­

comitant northward expansion of its attendance zone and reassign­
ment Of its students to underutilized elementary schools for 
purposes of improving racial balance; and

(5) the Yonkers Plan for school desegregation.
The Yonkers Plan was based on the significant Imbalance 

in racial enrollments and in school utilization. Superintendent 
Robltallle and his staff acknowledged that the dlstrlcfs general 
policy Of asslging students on a 'neighborhood school' basis had 
resulted in the racial Imbalance of many of the dlstrlcfs 
elementary schools. The plan also noted the degree of flexibility 
Inherent in the neighborhood school concept, stating that the 
concept was not definable by school capacity, by the size of a 
school's student population, by the geographic area serued by a 
school, by the student's ability to go home for lunch, or even by 
the distance between the school and the student's home. m  

addition, the plan emphasized the inefficiency of the district's
facility and staff underutilization and the fiscal consequences of 
these conditlona.iHS' GX 98, at 24-27.

Dnder the Yonkers Plan, elementary and middle school 
attendance zones were to be redrawn so that each school would have 
a maximum of fifty-five to sixty students per grade, or 
approximately 500 students per elementary school, the size of each 
school's attendance zone would thus be determined by the relative 
population density surrounding each school. students residing 
inside a redrawn school attendance zone boundary would be assigned

>4'4'3.



to the school contained within that boundary. Students residing 
outside the redrawn boundary would be transported by the district 
to another school so as to positively affect the racial balance of 
the receiving school. at 28. The plan noted that under state 
law, the state would reimburse the City for 90% of the costs 
incurred in transporting elementary and middle school students 
assigned to schools more than one-and-a-half miles from home. Id. 
The anticipated result of the plan was more effective utilization 
of school facilities through the substantial elimination of over­
utilized and underutilized schools, and the reduction of racial 
imbalance among elementary and, through feeder patterns, middle and 
senior high schools as well. The plan recommended that the 
district obtain professional consulting and computer assistance in 
order to designate specific students for reassignment. The 
plan did estimate, however, that 20% or less of Yonkers' elementary 
public school students would be directly affected by the transpor­
tation plan. Id. at 28, 31.

The financial benefits of the Phase II plan were consid­
erable, Phase II contemplated substantial savings in addition to 
those achieved through the school budget reductions of the prior 
year. According to the Phase II proposal, the 1976 closing of 
seven schools would save the City an estimated $17,500,000 over a 
ten year period. The proposed closing of Saunders and conversion 
of Burroughs into the district's vocational school entailed 
estimated expenditures totalling $2,500,000, or $17,500,000 less 
than the cost of constructing a new Saunders facility. According 
to the plan, the remainder of the Phase II proposals would result

4-^3



in net savings of $28,650,750 over a ten year span, stemming 
primarily from the recommended school closings and resulting 
consolidation of educational staff. Transportation costs arising 
out of the Yonkers Plan were estimated at $400,000 per year, 90% of 
which would be reimbursed by the state the following year. GX 98, 
at 22. These financial benefits were virtually unquestioned by the 
Board and were not a source of significant controversy during the 
consideration of Phase II. Tr. 11,764 (O'Keefe).

The several months between the August 1977 Issuance of 
Phase II and the March 1978 public hearings on the report were 
marked by what can best be characterized as overwhelming community 
opposition to the plan. Among the several recommendations included 
in the Phase-II report, the Yonkers Plan^was clearly the primary 
object of attention.' The manner in which community sentiment was 
expressed was multifaceted -— a fIyer-proclaiming opposition to the 
proposed busing of minority students into East Yonkers schools and 
East Yonkers students into Southwest Yonkers schools (GX 903); 
letters warning that Phase II would lead to white flight from East 
Yonkers neighborhoods (GX 832, 838)); a boycott of the schools in 
protest of the busing aspect of Phase II (GX 845); and written 
reports of various community groups (SB 659 (November 1977 report 
of Lincoln Park Taxpayers Association); SB 734 (March 1978 report 
of Taxpayers Organization of North East Yonkers); SB 759 (January 
1978 position paper of Yonkers Federation of Teachers); GX 838 
(January 1978 letter of Lincoln Park Taxpayers Association Presi­
dent) ; GX 842 (February 1978 position paper of Yonkers NAACP)). 
Virtually all of these reports expressed strong disapproval of the



Ph«e H  plan for reasons similar to some of those expressed at the 
public heatings held in March 1978, including the loss of 
neighborhood schools and the attendant burdens of such a loss, the 
lack of any improvement in the quality of education as a result of 
the Plan, and the failure to present alternatives to the busing 
proposal. Cf. GX 842 (Yonkers NAACP position paper explaining its 
decision to file complaint with united states Department of Health, 
Education and Welfare concerning racial segregation of Yonkers 
public schools). These reports urged the Board to consider 
alternatives to Phase II, including magnet schools, open enrollment 
Plans, and voluntary busing. SB..734, at 13, see also SB 660, at 2 
(May 1978 position paper of Citizens Committee for Quality 
Education). other written expressions of opinion, however, 
reflected race-related opposition to the Phase II plan. GX 832 
(letter to Superintendent Robitaille expressing concern that busing 
■•blacks s hispanics' into out east side schools- would be 
detrimental to neighborhood and suggesting that Task Force be 
renamed ■•Racist Force us- to take out children and gol-), GX 838 
(letter stating that community group was -unalterably opposed- to 
■compulsory (non-voluntary) busing for racial purposes as an end in 
itself), GX 903 (flyer protesting busing of East Yonkers students 
and busing of -the black children (3,000 in number) to our 
neighborhood schools-), see also GX 616 (letter expressing 
opposition to busing students into Emerson Middle School).

Community members also expressed uncertainty about which 
students would be affected by the transportation element of the 
Phase II plan. Tr. 11,273-74 (Guerney). Superintendent Robitaille 
made efforts to alleviate this concern, specifically, he attended

4 4 5



meetings in East Yonkers at which he explained that, based on 
school utilization and enrollment patterns, the transportation 
envisioned under the Yonkers plan would involve primarily west to 
east busing. Tr. 5908-09 (Robitaille); P-I 69-24. These efforts 
were consistent with the description of the plan's effects as 
reported by the Yonkers daily newspaper. GX 831.

In spite of the community's initial reaction to Phase II, 
the plan remained unaltered from the time of its submission to the 
Board to the public hearings the following spring. The Phase II 
plan received little formal consideration by the Board during this 
time. In October 1977, the Board hired an architect for the 
purpose of developing plans for the widely supported conversion of 
Burroughs into the new Saunders vocational school̂ ."̂  868. The 
Board held one public meeting early in 1978 to discuss the Phase II 
plan. Tr. 5903 (Robitaille). In January 1978, the Yonkers NAACP 
filed a formal complaint with the United States Department of 
Health, Education and Welfare regarding the racial segregation of 
the Yonkers public schools. SB 758; Tr. 3957-58 (Ross). The NAACP 
was subsequently associated by some community members with the 
busing proposal contained in the administration's Phase II plan. 
GX 845, 903. In March, Board members James O'Keefe and Seelig 
Lester attended a conference in Albany at which they discussed the 
Buffalo school district's desegregation program with Buffalo's 
school superintendent. Tr. 13,660 (Lester); SB 612.

During the months preceding the public hearings on Phase 
II, the plan's lack of detail regarding the students who would be 
reassigned under the Yonkers Plan was discussed by school



officials. Joseph Guerney, Director of Elementary Education, 
attempted to determine which students would be directly affected by 
the Yonkers Plan through the use of a pin map, an effort which 
proved unsuccessful. Tr. 11,312-13 (Guerney). Although several 
Board members recalled that they asked Superintendent Robitaille to 
provide greater detail concerning this aspect the plan, Tr. 11,740 
(0 Keefe); Tr. 13,581-82 (Lester), neither the Board nor the 
administration employed an outside consultant to assist in develop­
ing the desired level of specificity despite Guerney's recommenda­
tion that an outside consultant be retained and the Phase II plan's 
own recognition that such assistance would eventually be necessary 
to implement the plan. Tr. 11,329-30 (Guerney); GX 98, at 28. The 
testimony of Seelig Lester suggests.' thafe- Board members disagreed 
with Superintendent Robitaille- over whether greater specificity 
would, as a tactical matter, increase or-decrease .the chances for 
generating community support for the plan. Tr. 13,616-17. The 
Board eventually decided to leave the plan as it was in the hopes of 
generating community support conditioned on greater specificity, 
rather than pursue efforts to develop greater specificity prior to 
the public hearings on Phase II.

)In March 1979, the Board—  ̂ conducted four public 
hearings on Phase II at secondary schools in each of the city's 
four geographic quadrants. GX 943.1, 943.2, 945.2. While 
opposition to the plan was nearly universal, the nature of the 
opposition was somewhat more divergent. The hearing at Fermi 
Middle School in Southwest Yonkers was marked by substantial 
opposition to several aspects of Phase II, including the proposed



closing o£ Fermi and School 34 (Emerson Elementary School) as well 
as the proposed K-5 to K-6 grade reorganization. Moat of the 
dlscnsslon, however, consisted of almost unanimous opposition to 
the Yonkers Plan as a means of deaegregratlng the Yonkers public 
schools. Three reasons predominated: the disproportionate burden 
on west Yonkers students which Individuals perceived to be a
consequence of the plan and Its related school closing proposals 
(GX 945.2, at 7,8,32):'^ a resistance to the plan's Implicit 
recommendation that the quality of education for Southwest Yonkers 
students be Improved by busing them to predominantly white East 
Yonkers schools rather than by Improving West Yonkers schools
themselves (Id. at 5,14)1 and opposition ' to the assignment of
students away from theU neighborh<iod schools (id. at 4,14,28). 
several persons suggested the use of magnet schools as an
alternative to the plan's'buslng pro(;iial. Id. at 9,11,32.

The hearing at Lincoln High School In East Yonkers was 
considerably more acrimonious. Much of the opposition was focused 
on the proposed use of busing. Numerous community members and 
spokespersons for'varlous community organizations cited a variety 
of objections to the busing proposal. Including the perception that 
busing would not result in an Improvement In the quality of 
education, safety and time considerations regarding the transporta­
tion of students to and from school, and the plan's potential for 
interfering with a student's ability to participate In extra­
curricular activities or to attend after-school religious classes. 
A number of speakers also suggested, and criticized the Phase II 
plan for falling to consider, alternative methods for achieving



school desegregation, such as magnet schools, open enrollment or 
voluntary transfer plans. Several speakers warned that the 
implementation of the busing proposal would lead to white flight 
from East Yonkers schools and that they personally would refuse to 
allow their children to be bused to school. Several school 
officials also recalled hearing comments expressing the concern 
that the plan would result in Yonkers becoming "another Bronx," 
referring to the community deterioration and slumlike conditions 
associated with the Increased minority population in New York 
City's northernmost borough, located just south of Yonkers. Tr. 
2491-93 (Guzzo); Tr. 11,794 (O'Keefe); Lester Dep. 62-63; see
HOUSING IV.B supra

, ,,,,,S o m e  of the-, opposition to Phase II_ was expressed in 
consideredaLy more racially hostile form. This sentiment was most 
often evident in the,audience's treatment of the small number of 
speakers who spoke in favor of the plan. The Chairman of the 
Yonkers Human Rights Commission was booed and shouted at throughout 
his presentation; upon mentioning Brown v. Board of Education, and 
the need for integration, i in the, Yonkers public schools, he was 
booed, shouted at and^was unable to complete his statement. GX
943.2, at 11-12. elderly black woman, upon mentioning the 
prospect of busing from West to East Yonkers and the idea that 
children should learn from one another, was booed and shouted at to 
such an extent that the hearing was adjourned. at 27-28. The 
President of the Yonkers Council of PTAs was booed when she stated 
that "[t]his is the first time I can ever say that I am ashamed that 
I am white." Id. at 45.

4^^



other opponents of the plan also expressed what can 
fairly be described as attitudes with racial overtones. one 
speaker physically cut a miniature American flag (conduct which 
provoked an angry rebuke from Board member John Romano, who was 
present at the hearing) in an effort to show that "[o]ur flag has 
been torn apart," alluding to the "minority flag which refuses to 
get into the main web of our country, our system, just like all 
other minorities had to do." Id, at 22-23. Another person spoke 
against the busing of School 30 students in Southeast Yonkers to 
other schools and noted the willingness to accept children from 
other areas "but with some reservations as to the total effect on 
the quality of education" at the school. at 10. This
opposition ta the proposed . reassignment of minority students to 
East Yonkers schools was consistent with mother, more racially 
explicit expressions of similar sentiment at the time. See page 

supra.
Not surprisingly, no explicit racial epithets were used 

by persons making public statements at the hearing. See Hart v. 
Community School Board, supra. 512 P.2d at 50. However, several 
witnesses testified thatthey heard community members make specific 
racial slurs both inside and outside the hearing room, including 
comments referring specifically to the possibility of minority 
students attending East Yonkers schools. Tr. 1003 (lannacone) 
(comments included "they are going to send blacks, and they are 
going to send niggers and they are going to send spicks out here"); 
12,990-93 (Dodson) (characterizing audience comments, including 
"We don't want those children", as "disgusting"); see also Roshkind

4 5 0



Dep. 34, 65-66. In sum, there is substantial credible evidence 
that a significant amount of community opposition to Phase II, as 
articulated in the public record and within the hearing of several 
witnesses at trial, was racial in nature.

As noted previously, much community opposition to Phase 
II was expressed in terms of opposition to "busing." Given the 
history preceding the Phase II proposal, opposition to busing was 
understandable. The Yonkers School District had ceased to provide 
subsidized transportation in the 1930's; thus, unlike many other 
cities in the country faced with the problem of racial imbalance, 
Yonkers was not a community in which busing was a widespread and 
traditionally used form of free transportation. While the use of 
both public'^'snd 'privately-contracted bus transportation., at the 
secondary school level has-been a frequently used, method of 
travelling to- 'achool in Yonkers, the usê ' of buses has been 
relatively infrequent on the elementary school level. Even in 
these instances, the nature and extent of such transportation has 
been relatively modest in comparison to some of the transportation 
which was contemplated under Phase II. Many of the concerns 
expressed regarding the proposed busing of elementary school 
students were similar to those expressed by East Yonkers community 
members who protested the 1976 closing of Schools 4 and 15, where 
racial concerns were not a factor in the community's opposition to 
the Board's school closings and student reassignments. The fact 
that the 1976 school closings were so adamantly opposed, while not 
a complete explanation of the community opposition to Phase II, is 
nevertheless evidence of the sincerity of the community's belief in

451



egarding the potential loss of neighborhood schools.
• however, persuade this Court that

opposition to busing was Dar^ia^^ ".. , P«tially pretextual In nature. First
veral of the suggested alternatives to the Phase II , 

wodld have regulred transportation of students I s l d e l ^ J e ^ ^  
nsighhorhood school tone, suggesting that at least so„e of th‘I
ace-neutral concerns which were exoreas-fie expressed concerning the YonkAra plan were pretextual a « w conkers

Phase II Plan I• Plan, such as the Infringement on a studenfs ability to 
participate In extracurricular activities, the time and distancehTirr"hood, and the perceived lack of Improvement in rw- -ra - I • ' In. ̂ QUftXi.fcv
acatlon, would have also existed under the -voluntary, busing o 

open enrollment plans suggested bv
members. community and Board

Phase II T  ^aaapregatlve alternatives to
also was somewhat Inconsistent with the com m u n ltys

previous attitude towards similar proposals In the district. The 
school district's ««
racial Imb 1imbalance were greeted by community resistance to the
prospect of school deseqreoatlon eegregation. ^  SCHOOLS IV.P.l, iv p 2
IHEra. The high school variablA  ̂ •̂ ’.2
1 9 7 2  mn, p " “ ""ended In the
«  2 inn, Beport, involving the creation of specific occupational
and vocational programs at each of the dlstrlcfs high schools, was
rongly opposed by community members In part for reasons similar
Chose expressed with respect to Phase II. such opposition

4 ^ ^



suggests not only that the prospect of voluntary transportation was 
in fact not regarded as desirable or acceptable but also that the 
community's endorsement of magnet schools or open enrollment plans 
was not entirely sincere. The community's reaction to the efforts 
of the Task Force was also indicative of its unreceptive attitude 
toward school desegregation. Although the Task Force was 
responsible for exploring^ and in fact recommended, a wide variety 
of methods for desegregating the schools, the Task Force, like the 
NYU Report proposals, was Instead equated by some with "busing", an 
issue which became a primary focal point of community discussion. 
Tr. 3612-13 (Ross); Tr. 8363 (Keith); P-I 59-36, 59-43, 59-47A.

More importantly, the aforementioned race-neutral 
concerns about, bus transpor.tatioivr also.,,,cannot satisfactorily 
explain the. East Yonkers community's opposition to west to east 
transportation of - predominantly, minority students. While such 
sentiment was not the universally held position of East Yonkers 
citizens —  some receptivity to the enrollment of minority students 
in East Yonkers schools was expressed —  the frequent expression of 
such opposition both,prior to and during the consideration of Phase 
II cannot be ignored».o Such opposition, moreover, was consistent 
with the strong, longstanding community opposition to the location 
of subsidized housing in East Yonkers described previously in our 
findings. In sum, while some of the concerns expressed regarding 
busing were sincerely held and non-racial in origin, we also find 
that a significant amount of opposition to busing was pretextual 
and represented race-related opposition to the Phase II plan.

The testimony of Board members also demonstrates that

453



community opposition was, in significant part, based on race. 
Although Board members generally recognized the loss of neighbor­
hood schools as an important component of community opposition, 
racially influenced community opposition to Phase II was also 
recognized as a significant element of the community's resistance 
to the plan. Robert Jacobson, a past member of the Board who 
attended the Phase II hearings and met several times with Board 
members, stated that the Board believed, and that he was convinced, 
that the "basis of the community reaction —  was racism." Tr. 
5063. Quentin Hicks, the Board's only minority member at the time 
of the Phase II proposal, testified to his conclusion that communi­
ty members, whites and minorities alike, were opposed to racial 
integration in any-form and that "[bjlack children must learn in 
black schools," a conclusion which was consistent with his observa­
tions concerning community reaction to the Phase II plan. Hicks 
Dep. 67-70, 145-46, 217; SB 815, at 30. Even Board members who 
testified that they did not believe race was a significant factor 
in community opposition to Phase II nevertheless acknowledged that 
at least some of the. community opposition was racially based. Tr. 
11,741-42, 11,794 (O'Keefe); Tr. 13,668 (Lester).

The testimony of other school officials similarly 
reflects that community opposition to Phase II was racially 
influenced. John Guzzo, Director of Secondary Education, recalled 
the community's resistance to the assignment of West Yonkers 
students to East Yonkers schools, and stated that he was "ashamed" 
at the comments he heard at the Lincoln High School hearing. Tr. 
2488-92. Robert Dodson, Director of Special Services, also

454-



perceived community resistance to west to east busing based on 
comments and remarks he heard expressed at the Phase II hearings. 
Although he acknowledged that much of the publicly articulated 
opposition was based on an unwillingness to be bused from one's 
neighborhood school —  a concept whose existence he questioned —  
much of the undercurrent at these hearings, including references to 
"those children" and comments which he characterized as 
"disgusting," convinced him that the public was generally 
unreceptive to relieving racial imbalance in the schools, Tr. 
12,978-93. Dodson concluded that racial opposition to Phase II was 
substantially responsible for the Board's rejection of the plan. 
Tr. 13,144. The observations of Audrey Roshkind, at the time a 
Council of PTA'S’ offices and .^.subsequently a Board member, and 
Dominick lannacone, former City CounciImember,. led them to draw 
similar conclusions. Roshkind Dep. 69-74 (race: was a factor in 
Phase II community opposition, partly based on fear of west to east 
busing); Tr. 1557-63 (lannacone) (majority of Phase II community 
opposition racially based and similar to community opposition to 
subsidized housing).

Dr. David Armor, the Board's expert witness, testified 
that, based on his examination of the Phase II hearing transcripts 
and tapes, the community opposition to Phase II was similar to the 
Los Angeles community's opposition to mandatory desegregation, 
opposition which he had concluded, after a detailed study of Los 
Angeles citizens was based on sincerely held, non-racial 
factors. Tr. 11,954-79. We have a number of difficulties with 
this analysis and with the conclusion reached by Dr. Armor based on

45^



this analysis, namely, that community opposition to Phase li was 
predominantly not racially motivated. Tr. 11,983. Dr. Armor's 
conclusion was based on what he concluded was substantial community 
support for the assignment of minority students to East Yonkers 
schools; the testimony of school officials, oral and written state­
ments made both inside and outside the Phase II hearings, and the 
treatment of pro-Phase II speakers at the Lincoln hearing itself 
significantly undercut the validity of this factual premise. in 
addition, the substantial differences between the two communities 
compared by Dr. Armor, for example, the geographical size of the 
district (and resulting incremental burdens imposed by busing) 
further limit the usefulness of this comparison in determining the 
nature of community op^sition to Phase II. Thus, responses which 
may well have had a genuine basis in fact'in Los Angeles may well 
have been inapposite, or at least less plausible, with respect to 
Yonkers. Similarly, community opposition based on a fear of creat­
ing "another Bronx," while meaningless in a comparison of the Los 
Angeles and Yonkers communities' reaction to desegregation plans, 
take on particular meaning in the context of' this case. This 
distinction becomes even more significant in light of the prior 
history of partly pretextual’ opposition to subsidized housing in 
areas of the Yonkers community substantially the same as those most 
vocally opposed to Phase II —  a factor which Dr. Armor conceded 
would be relevant in evaluating the sincerity of opposition to 
mandatory busing. Tr. 12,539. Finally, Dr. Armor's analysis did 
not take into consideration more privately-expressed sentiments and 
school officials' perceptions of community attitudes, both of which



are of importance in determining the nature of community to Phase 
II.

Two of the proposals contained in Phase II were eventual­
ly adopted and implemented by the Board. First, in an April 1978 
meeting held shortly after the public hearings on Phase II, the 
Board considered a resolution to relocate the Saunders Trades and 
Technical High School to the Burroughs facility. Over the objec­
tions of community members who claimed that the Board's separate 
consideration of this Phase II proposal was a "political move" and 
an attempt at "evading the integration issue," the Board unanimous­
ly adopted the 'resolution';' GX 679.* BUtroughS'was closed at’the end 
of the 1977-78 school year, and Saunders was relocated to the 
Burroughs facility after the- 1979-80 schoor year. Second, the 
Board eventually adopted a grade reorganization proposal similar to 
the one contained in Phase I I . I n  1980, the district's schools 
were converted into K-6 elementary, 7-8 middle (except for 
Longfellow and Pernri,' ' both of which continued to enroll sixth 
graders), and 9-12 high schools.

The Board's treatment of the desegregative components of 
Phase II, however, consisted of unanimous disapproval of the plan. 
In a May 1978 workshop meeting attended by Board members and Super­
intendent Robitaille, the various reasons for community and Board 
opposition to Phase II were discussed. SB 815, 816.1, 816.2. The 
opposition of Board members was based primarily on criticisms 
already expressed by the community, namely, the opposition to 
busing as a means of achieving greater racial balance and the

4 b ^  .



associated problems presented by the transportation of students 
away from their neighborhood schools. The Board's concern with 
busing centered around Phase II's reliance on mandatory, rather 
than voluntary, means of achieving desegregation. Board members 
cited the widespread community opposition to mandatory busing, 
including the opposition of minorities, as well as its potential 
for encouraging further declines in enrollment, or white flight, 
from the schools, as the primary reasons for the plants infeasibil­
ity. Several Board members, however, also commented on the some­
what illogical nature of community opposition to the use of such 
transportation per se. SB 815, at ^1 (O'Keefe) ("the busing issue 
... I find hard to understand, because I ride around this city, 
particularly^ as I'̂ dts*' arourtd others contmunlt-ies" throughout this 
nation, and wChder'^why air^ these yellow buses are running around. 
If there is' something so immoral ared dirty and bad about putting a 
child on a bus and sending him to school, I have to ask the question 
to those people who would suggest that busing somehow by very 
essences is immoral, bad.”); 27 (Lester) ("please stop using words 
like 'forced busing'-*"’... everyplace in the State of New York, 
young people are forced to*ride on buses to get to school —  not for 
purposes of integration — 'not for purposes of correcting racial 
imbalance, for purposes of getting to school.").^^^

Virtually every Board member also expressed preferences 
for other, voluntary methods of desegregation, most notably, the 
use of magnet schools and open enrollment plans. The educational 
virtues of magnet school programs were cited as the primary 
advantages of such plans. The discussion also reflected the Board

4 6 3



members' perception that the process of school desegregation would 
have to be a slow and gradual one; the Board's discussion of magnet 
school programs focused on their recommended utility primarily at 
the high school level. at 14 (Paradiso) , 28 (Lester) , 34-35
(Romano); see also id. at 30 (Hicks). Superintendent Robitaille 
noted that the magnet school alternatives contemplated by the Board 
would also entail transportation of students out of their neighbor­
hood school zones, and that Integration efforts which focused first-nron the high school level were particularly inadvisable. at
30-31.

The Board's recognition of race-related resistance to 
school desegregation was limited primarily to the concerns 
expressed by Southwest Yonkers community members. Anne Bocik 
stated that minority students and administrators from minority 
schools "said that they would like to be with their own." M. at 9. 
Quentin Hicks related that black parents had expressed concern 
about having their children transported out of their neighborhood 
to "roam in the white jungle on that bus” and stated that ”as long 
as I'm on the school board I'll make sure it doesn't happen." Id.

•  ’  t  r l  ?  . . . .at 30.
■ n t S i  r  :-i

On the whole, the thrust of the workshop discussion 
consisted of the Board's recognition of the community's unwilling­
ness to countenance an involuntarily-imposed desegregation 
proposal, such as Phase II, and one which did not carry with it any 
perceived improvement in the quality of education.-^^^ No final 
recommendations or resolutions were arrived at by the Board prior 
to the meeting's adjournment. None of the desegregative aspects of

4-5^



the Phase II plan was formally voted on, either at that meeting or 
at anytime thereafter.

The most immediate causes for the Board's failure to 
adopt Phase II thus consisted of a recognition of the infeasibility 
of its implementation over the strong objections of the community 
and a disagreement with the administration's choice of school 
desegregation methods. The Board workshop meeting and the trial 
record reflect the Board's recognition of the strong community 
opposition to Phase II, opposition which largely coincided with 
that of the Board members themselves. Several Board members also 
acknowledged the importance of community sentiment in formulating 
their position on Phase II and in developing an alternative to 
Phase II's desegregative proposals. Tr. 11,770-71 (O'Keefe)? GX 
843, at 2 (Paradiso); SB 815, at 17,19 (Spencer); Weiner Dep. 73, 
309? ^  also Tr. 5065-66, 10,965-66 (Jacobson). Indeed, the
possible recurrence of the threats and personal harassment which 
several Board members had experienced in the aftermath of the 1976 
school closings placed considerable pressure on the Board during 
its consideration of Phase II. Tr. 5313-15 (Prauenfelder)? Tr. 
5065-66 (Jacobson). The overall conclusion of the Board was that ai I
voluntary desegregation plan would be more acceptable to the 
community and more likely to achieve the Board's stated desegregat­
ive goal.

The initial failure to implement an alternative desegre­
gation plan was also due primarily to a conflict between Superin­
tendent Robitaille, who claimed that magnet schools were an 
inadequate and ineffective means of achieving school desegregation



and involved fiscal burdens which would be problematic for the 
district, and Board members, who stated a belief in the efficacy of 
such desegregative methods. Thus, in the aftermath of the Phase II 
hearings and the Board workshop. Superintendent Robitaille
continued to favor adoption of the Phase II plan up to the time of 
his departure from the school district in June 1978. Tr. 4700
(Robitaille). During this time, however, school officials were 
also instructed by Superintendent Robitaille to investigate the use 
of magnet schools in other cities. These officials eventually 
submitted a report to Interim Superintendent John Humphrey
subsequent to Dr. Robitaille's departure from the school district. 
Tr. 13,195-96, 13,276-77 (Dodson).

Superintendent Robitaille's departure from the district
• M i J  H  T  i t i i> f - ' f  r  r* *' . .  i • ^

prompted an extensive search by the Board for a replacement. In
the wake of Phase II's demise, the Board's stated objective was to
hire an individual who was not committed to any particular desegre­
gative method, such as Superintendent Robitaille's perceived 
commitment to busing, but was willing to consider a variety of
approaches to the school desegregation issue. Tr. 13,079-81.
13,126-27 (Pitruzzello). After approximately nine months, the 
Board hired Dr. Joan Raymond, an assistant superintendent from 
Chicago who had been involved in integrating the faculty of the 
Chicago public schools, as the new Superintendent of Schools, a 
post she presently occupies.

The nature and extent of the Board's responsiveness to 
community opposition to school desegregation is discernible most 
clearly from the Board's acts and omissions between the time of

Ac? \



Phase II's rejection in mid-1978 and the institution of this 
lawsuit two-and-a-half years later. Although Superintendent 
Robitaille's departure and the Board's search for a new superin­
tendent hindered to some degree the district's ability to develop 
and implement desegregative school reforms, the Board, during the 
interim superintendency of John Humphrey (who was also a candidate 
for the Superintendent's position) and the super intendency of Joan 
Raymond, did virtually nothing either to implement any of the 
desegregative proposals suggested in Phase II or to develop and 
implement any of the desegregative alternatives suggested by the 
Board and community members. The failure to close either School 6 
or Longfellow Middle School resulted in the perpetuation of 
virtually all-minority schools (99% and 9(Jl''mlnority, respisctively, 
in 1978-79) even'though both schools were significantly underutil­
ized, regarded as educationally inferior and physically inadequate, 
and had been recommended for closing on several prior occasions. 
Financial considerations also clearly justified the proposed school 
closings; the closing of a middle school in particular would have 
resulted in estimated savings of approximate!^$100,000 per year in 
operating costs, or approximately $500,000 per year in total costs. 
GX 98, at 22; Tr. 4679-86‘(Robitaille).

We recognize that the decision to close a school is an 
unpopular one and that opposition to' such school closings was 
expressed at at least one West Yonkers Phase II hearing. Yet the 
Board's failure to pursue such measures was in marked contrast to 
the Board's willingness, just two years earlier, to implement 
similarly cost-effective school closing proposals over substantial

4 & 2



and similarly vigorous community opposition. While the Board was 
relatively steadfast in its decision to close schools in 1976 
despite the strident protests of the affected communities regarding 
the loss of their neighborhood schools, the Board, faced with 
considerably less race-neutral opposition to Phase II, acted in a 
substantially more acquiescent fashion despite the school 
district's previously acknowledged commitment to rectifying the 
segregative conditions left unresolved by the 1976 school closings, 
its prior recognition that desegregation of the public schools was 
an important step towards equalization of educational opportunities 
in the district, and the financial consequences of the Board's 
inaction. A primary difference between the 1976 school closings and 
several Phase II proposals'wascthe clearly-deaegregatlve impact of 
the contemplated reassignments from heavily minority schools, a 
factor which appears ta have lncreased>^rather than decreased, the 
Board's reluctance to close admittedly underutilized and physically 
inferior schools. It is reasonable to conclude that the Board's 
persistence in failing to implement any proposal for desegregating 
the schools was based in part on- itS’ awareness of community 
opposition to the desegregative reassignment of Southwest Yonkers 
students which the Phase- II proposals would have likely 
entailed.̂ -̂ ^

Similarly, the Board's professed enthusiasm for magnet 
school or open enrollment programs as desegregative alternatives to 
Phase II was followed by a marked absence of implementation 
efforts. No magnet school, open enrollment, or other voluntary 
desegregation plan was adopted at any time prior to the institution

4G3



of this lawsuit.^/ Seelig Lester, although a self-aotnowledged 
proponent of magnet schools who had previously helped create such 
schools as a deputy superintendent of schools in New York City, 
failed to make any such proposals and in fact opposed an open 
access proposal for the Yonkers high schools in 1980. Tr. 13,677. 
A proposal for an open enrollment plan received no response and was 
not pursued. Tr. 13,186-87 (Dodson). An oft-repeated suggestion 
that the district close Longfellow, made again in May 1979 by 
Robert Dodson to Superintendent Raymond, was not adopted. GX 7 5 4 . 
AS late as the summer of 1980, community opposition to racial inte­
gration was perceived as an obstacle to school desegregation 
efforts in Yonkers. Tr. 13,143 (Dodson), m  short, despite indi­
cations that the Board recognised the need -to address and remedy 
the racial segregation of the school district, the Board's conduct 
during the two-snd-a-half years subsequent to the Phase II hearings 
and the three-and-a-half year period following the plan's introduc­
tion, constitutes a pattern of inaction with respect to school 
desegregation quite inconsistent with the affirmative measures 
taken in the face o* comw.i,iiy opposition to the fiscally motivated 
school closings and budgetary cutbacks of' 1 9 7 6 ,^^

Other circumstances suggest that the nature of the 
Board's responsiveness to community opposition was partly race- 
related. The Board was aware of the considerable amount of west to 
east busing contemplated under Phase II and thus could reasonably 
foresee that Phase II was not likely to result in any significant 
dismantling of the neighborhood school concept, as feared by East 
Yonkers community members. See pagesMfcl-Q?infra. The Board's

4G4-



purported reliance on this expression of East Yonkers community 
opposition is thus difficult to reconcile with the predictable 
consequences of both the Phase II plan as a whole or some of its 
more limited desegregative aspects. While Southwest Yonkers 
residents also expressed considerable opposition to Phase II, this 
opposition was based not only on the potential loss of neighborhood 
schools but also on the perceived disproportionate burdens which 
would be imposed by the plan; there is little evidence, however, to 
suggest that the Board's failure to adopt Phase II was based in any 
significant part on this concern. Instead, evidence of the Board's 
recognition of Southwest Yonkers community opposition was more 
directly related to race-related considerations, considerations
which cannot be relied upon as neutral reasons for failing to adopt

■
all or part of Phase II.

The perceived absence of an improvement in the quality of 
education also cannot explain the Board's treatment of Phase II in 
light of its rejection of that plan coupled with its subsequent 
inaction. We have little doubt that part of the community's
opposition to Phase II was based on the educational inequality 
between East and West Yonkers schools; apart from race-related 
factors, students in East Yonkers would have had little reason to 
express enthusiasm for attending what were widely regarded by both 
community members and school officials as educationally inferior 
schools. The Board's rejection of Phase II and its subsequent 
inaction, however, does not reflect a legitimate, race-neutral 
recognition of the educational concerns of either East or West 
Yonkers residents. The substantial west to east movement of



students provided for under Phase II would likely have improved 
educational opportunties for those students previously attending 
smaller, more crowded and educationally inferior schools. The 
magnet school programs so frequently mentioned as preferable, more 
educationally valuable desegregative tools were noticeably absent 
in the years following the Board's consideration of Phase II. 
Other alternatives suggested by community members, such as open 
enrollment or voluntary transfer plans, not only were not approved 
or implemented but also would have presumably failed to avoid the 
perceived educational deficiencies of the Phase II transportation 
plan. The Board's failure to implement either all or part of Phase 
II, or any alternative plan which would have been consistent with 
the legitimate educational ̂ concerns''of the community, undermines 
the credibility of the aforementioned race-neutral explanation for 
the Board's perpetuation of racial imbalance in the Yonkers public 
schools. .

The Phase II plan's self-acknowledged lack of specificity 
does not adequately^and credibly explain the Board's refusal to 
adopt Phase III. The consunity's expression of concerns regarding 
who would be affected by the- plan does lend credence to the non- 
racial aspect of c<»munity opposition to Phase II: if the question 
of whether someone would be directly affected by the plan was 
considered relevant or important in determining one's reaction to 
the plan, such a concern would suggest that opposition was premised 
in part on being bused out of one's neighborhood school zone, 
rather than having others bused into one's school. In addition, 
although the plan expressly called for the closing of Southwest

4 < ^



Yonkers' School 6, Longfellow Middle School and Fermi Middle 
School, and thus contemplated at least some west to east busing, 
the relative underutilization of East Yonkers school facilities and 
the retention of sixth graders in elementary school (as recommended 
in Phase II) are factors whose effect may not have been easily 
predictable by community members.

The community's expression of specificity concerns, 
however, does not explain the Board's conduct with respect to Phase 
II. While the significance of enrollment and utilization data may 
not have been so easily discerned by community members, the Board 
was certainly aware of what was likely to be the predominantly west 
to east direction of student movement under Phase II. The Board 
recognized as a general matter that Southwest Yohkets schools were 
relatively crowded and tha€' three of them were' recommended for 
closing, while East Yonkers schools were relativ(^ly underutilized 
and none were recommended for closing. Tr. '11,790-91 (O^Keefe). 
Joseph Guerney had estimated that approximately 1,800 to 2,000 
students would have been bused under the Yonkers Plan, and that the 
closing of School 6 (with its expanded boundary) alone would have 
accounted for at least 300 of those students.' Tr. 11,296-97? GX 
82, 83. Student enrollment and school capacity data for the 
following (1978-79) school year also reveals the extent to which 
transportation would have been in a predominantly west to east (or 
to a more limited extent, southwest to northwest) direction. Using 
the Phase II report's capacity figures, the three most underutil­
ized elementary schools in the district approximately 50% of 
capacity) were all at least 93% white schools, two in Northeast

Ar<̂l



Yonkers (26,32) and one in Northwest Yonkers (22). Of the next 
seven most underutilized schools (50-60% capacity), five (8,17, 
28,29,31) were in East Yonkers, one (34) was in Northwest Yonkers, 
and the only school in Southwest Yonkers operating below 60% 
capacity —  99% minority School 6 —  was recommended for closing 
and thus likely would have been a source of west to east busing. Of 
the thirteen most underutilized schools (at or below 70% of 
capacity), only two (16,25) were in or near Southwest Yonkers; of 
the six most fully utilized (at least 80%) schools, all were in 
Southwest Yonkers, and five of them were over 40% minority. (The 
exception was School 13, a 32% minority school in the southeastern- 
most portion of Southwest Yonkers). Thus, although the precise 
quantification and identification of students who would have been 
directly affected By the Yonkers FlanPis not revealed by the above 
data, the overall trend is* fairly clear; *>

The allegedly uncertain effect of retaining sixth graders 
at the elementary school level also does not credibly explain the 
Board's purported specificity-based rejection of Phase II. The 
likely effect of the proposed grade reorganization is consistent 
with the conclusioiT’thet most busing would have been in a west to 
east direction. Six Northeast Yonkers elementary schools (8,26, 
28,29,31,32), all of which were under 60% capacity, were already K- 
6 elementary schools and thus would have been unaffected by the 
grade reorganization. In addition, the retention of sixth graders 
at the elementary school level would have affected Southwest as 
well as Southeast Yonkers elementary schools: Southeast Yonkers 
elementary schools had an average of sixty-eight fifth grade



students (12% of their average capacity) in 1977-78 who would have 
remained at these schools under the Phase II plan; Southwest 
Yonkers elementary schools (not including School 6) had an average
of eighty-one fifth grade students, also 12% of their average 
capacity.

Any perceived lack of specificity became a clearly 
subsidiary concern subsequent to the public hearings on Phase II. 
The issue of specificity was virtually absent from both the Phase 
II public hearings and the Board's May_ 1978 workshop meeting and 
was simply not pursued when community opposition to Phase II became 
clear. The Board's failure to resolve the specificity issue 
subsequent to the public hearings on Phase II, along with the far 
more frequent expression of substantive objections to the. Phase II 
plan, pursuade us that the Board's rejection of Phase II was not 
attributable in any significant way to the plan's lack of 
specificity.

The Board's failure to implement all or part of Phase 
II's desegregative proposals, or any alternatives to these 
proposals, is in many respects consistent with the Board's previous 
failure to implement desegregative reorganization proposals and the 
district's recognition of the community's resistance to school 
desegregation. Beginning in 1970, the record discloses an aware­
ness by school officials of the community's opposition to 
desegregation and a concomitant failure by school officials to 
adopt and implement educationally and fiscally sound proposals 
which would have helped rectify the recognized racial imbalance in 
the district. While the initial failure to pursue or implement



desegregative school reorganization proposals was premised on the 
purported infeasibility of their present implementation, the 
refusal to implement such proposals in the late 1970's occurred in 
temporal and factual context which renders a finding of deliberate 
perpetuation of racial segregation appropriate: the increased 
racial imbalance among the district's schools; the increasingly 
visible racial opposition to correcting this condition; the 
increased demands for desegregative action; an increasing 
realization that such action was an important ingredient in 
eliminating disparities in educational opportunities in the 
district; a community increasingly afflicted by segregative 
governmental housing practices animated by community opposition to 
the presence*^of subsidized housing in "areas outside of Southwest 
Yonkers; and" tbe failure"'to address the problem of racial 
imbalance in the schools in any meaningful fashion- in the years 
following the rejection of Phase II in a manner consistent with the 
Board's stated reasons for rejecting the plan. In our view, the 
record makes clear that the initial reluctance to implement 
desegregative school reorganization plans evolved into a persistent 
failure to adopt measures to correct recognized educational and 
racial imbalances in the district in part because of their 
desegregative consequences. From the foregoing, we find the 
Board's failure to meaningfully address the problem of racial 
imbalance subsequent to its consideration of Phase II is more 
readily explainable as a reflection of the community's resistance 
to desegregation rather than the race-neutral concerns of the 
community.

4-'70



The only desegregative student reassignment made by the 
Board in the aftermath of Phase II involved the reassignment of 
predominantly minority Runyon Heights students to Whitman Middle 
School (5% minority) in Northeast Yonkers. This reassignment 
occurred as a consequence of the Board's decision to convert 
Burroughs Middle School into the new Saunders facility. The 
reassignment of Runyon Heights students had been anticipated by 
NAACP member Herman Keiths among others, before the Phase II 
hearings, in light of the strong community support for the reloca­
tion of Saunders to Burroughs. At a February 1978 meeting of the 
Advisory Council for Occupational Education, Keith (a member of the 
Council) expressed his concern that this reassignment would be 
burdensome for Runyon Heights*students and urged that the Saunders 
proposal not be treated separately from the remainder of the Phase 
II Plan. 6X 432̂ ^̂  As Keith had anticipated, the Board eventually 
approved the Saunders proposal but rejected all of the desegrega­
tive components of the Phase II plan. Burroughs students were 
reassigned to Whitman and Emerson Middle Schools, with the Runyon 
Heights community included in the new Whitman zone.

The actual- edfeeti of reassigning of Runyon Heights 
students to Whitman was considerably smaller than attendance zone 
maps might suggest. Parents from the Runyon Heights community 
expressed concerns about the cost and inconvenience of attending 
Whitman and urged school officials to allow students from this area 
to attend Emerson Middle School (32% minority) instead. Tr. 
11,733-34 (O'Keefe). The district, however, adhered to its 
original decision to reassign such students to Whitman; students

4 ^ 1



who still wished to attend Emerson were permitted to apply for an 
out-of-district transfer in accordance with the district's general 
attendance policy. GX 734; Frank Dep. 244-48. As a result, 
minority enrollment at Whitman increased from twenty-three students 
xn 1977 to only thirty-seven students in 1978; although twenty-four 
minorities who attended Burroughs in 1977 as seventh graders were 
reassigned to Whitman and Emerson, Whitman's eighth grade minority 
enrollment in 1978 was only four students greater than its seventh 
grade minority enrollment during the preceding year. GX 53, 64. 
With the simultaneous reassignment of over 300 white students from
Burroughs to Whitman, Whitman remained a 5% minority school in 
1978.

The reassignment of Runyon Heights students was part of a 
more comprehensive reassignment of students living in the western 
portion of the Burroughs zone. This reassignment of Burroughs 
students began in 1977, prior to the development and consideration 
of the Phase II plan but in anticipation of the soon-to-be-proposed 
conversion of Burroughs into the new Saunders. First, the district 
reassigned Burroughs ninth graders to Roosevelt High School. GX 
847; SB 810.7. Second, the district decided to eliminate the 
sixth grade at Burroughs: sixth graders living in the Burroughs 
zone attended their respective elementary schools (5,8,31,32), and 
approximately eighty-five students residing west of the Saw Mill 
River Parkway in the former School 24 zone were scheduled to attend 
Emerson Middle School. GX 743, 750, 847; Prank Dep. 242, 269-70. 
Third, the district decided to reassign Burroughs' current sixth 
graders, approximately sixty-nine in number, to Emerson. GX 743.



Thus, Burroughs was converted from a grade 6-9 junior high school 
in 1976-77 to a grade 7-8 middle school in 1977-78.

When Burroughs was closed as anticipated in 1978, parents 
from the former School 24 zone expressed conflicting preferences as 
to which middle school they wanted their children to attend the 
following year. Some parents, including members of the Runyon 
Heights community, wanted their children to attend Emerson (32% 
minority) in nearby Northwest Yonkers; other parents, residing in 
the westernmost portion of the former School 24 zone, asked to have 
their children assigned to Whitman (5% minority), located a consid­
erably farther distance away in Northeast Yonkers on the other side 
of the Saw Mill River Parkway. The former group was concerned 
about the cost -and inconvenience of having students travel over 
four miles to Whitman; the latter group expressed their desire that 
their children be permitted to attend Whitman along with the rest 
of their School 5 classmates who resided east of the parkway. Tr. 
2502-04 (Guzzo); Frank Dep. 244-48.

The new middle school boundary line was redrawn along the 
parkway, thus including the westernmost portion of the former 
School 24 zone in Emerson‘a attendance zone. At the same time, the 
Board granted an option to approximately sixty-five or seventy 
students, some of whom resided in the westernmost portion of the 
Burroughs zone, to attend Whitman rather than Emerson. GX 734; Tr. 
2577-78 (Guzzo); Prank Dep. 258-59. While the option was express­
ly granted for 1978 only, a majority of the students in this area 
have continued to attend Whitman by obtaining out-of-district 
transfers to the school. GX 734; Frank Dep. 244-48, 258-59. These

4 ^ 3



students also have generally continued their secondary school 
education at Roosevelt High School (9% minority in 1980) in North­
east YonkerSf rather than at Gorton High School (47% minority in 
1980) in Northwest Yonkers. Frank Dep. 258-59.

While the options to attend Whitman rather than Emerson 
was segregative in its impact, racial considerations do not appear 
to have been a factor in the district's initial decision to grant 
the options. John Guzzo testified that the granting of these 
options was readily permitted because of the wide disparity in 
available capacity at the two facilities at that time. Tr. 2577. 
His testimony is supported by the numerical evidence of student 
enrollments at the two schools: in 1977-78, Emerson had 784 
students, or 92%^of. its middle school capacity; Whitman had 480 
students, or 40% (Phase II) to 47% (Engineering Department) of its 
capacity. The following year, a significant disparity still 
existed: Emerson was operating at 102% capacity, while Whitman was 
operating at 68% to 80% capacity.

On the other hand, neither the assignment of Burroughs 
students to Whitman, nor the Whitman/Emerson option, can be 
satisfactorily reconciled with other student assignment alterna- 
tives rejected by the Board. The willingness to assign former 
Burroughs students over four miles to Whitman undermines the extent 
to which travel and distance concerns can satisfactorily explain 
the Board's persistent refusal to reassign other students in a 
similar fashion for desegregative purposes. These concerns are 
particularly unpersuasive with respect to the reassignment of 
students from some of Southwest Yonkers' more underutilized and

‘̂ 14-



physically inadequate facilities ~  for example. School 6 and
Longfellow, which were recommended for closing in Phase II   for
whom subsidized transportation would have been provided. The
district's willingness to assign middle school students consider­
able distances from their homes primarily where such assignments 
bore no desegregative consequences is inconsistent with its failure 
to do so in circumstances where both racial and educational factors 
made such assignments advisable. The granting of options to attend 
Whitman rather than Emerson also does not explain the failure to 
consider transferring Burroughs students to Longfellow or Fermi, 
two predominantly minority and severely underutilized middle 
schools in Southwest Yonkers. See SCHOOLS IV.A.3.C supra. Any 
desegregative effect which resulted from reassigning Runyon Heights 
students to.Emerson or Whitman was thus clearly outweighed by the 
segregative reassignment of other Burroughs students to these two 
schools.

As a result of the Board's refusal to adopt any of the 
desegregative proposals of Phase II, the school district's acknow­
ledged facility unde|rutnization,  ̂educational inequality, and 
racial imbalance continued. By 1980, the district's schools, now 
organized primarily on a K-6, 7-8, 9-12 basis, were still operating 
at significantly disproportionate capacities. On the elementary 
school level, three schools were operating at less than 50% 
capacity Schools 26, 31 and 32, all of which were predominantly 
white schools located in Northeast Yonkers. Of the next seven most 
underutilized schools (all below 60% capacity), four were at least

4 n 5



95% white schools in East Yonkers (8,17,28,29), two were 90% white 
schools in Northwest Yonkers (22,34), and the seventh was School 6, 
a 98% minority school which remained open despite its recognized 
physical inadequacies, severe underutilization and racial 
imbalance. In contrast, of the six most fully utilized elementary 
school facilities in the district (over 80% capacity), all of them 
were in Southwest Yonkers, and four of them were predominantly 
minority schools (10,18,27,King). (The other two were School 13 
(38% minority) and School 23 (45% minority)). On the middle school 
level, the pattern was reversed: by far the two most fully 
utilized facilities were Emerson (94% capacity) and Twain (89% 
capacity), both of which served predominantly white neighborhoods 
which were closer to the severely underutilized and predominantly 
minority Longfellow school. Twain, a 4% minority school, also 
served neighborhoods which ^were roughly equidistant to the 
underutilized Fermi Middle School (62% minority) in Southwest 
Yonkers.

The costliness of such underutilization was not, and 
indeed cannot be, seriously disputed. The school district 
administration had recognized, and the Board was aware, that each 
elementary school closing would have resulted in savings of 
approximately $200,000 to $250,000 per year; as noted previously, 
each middle school closing would have saved approximately $500,000 
per year, including $100,000 per year in operating costs. Tr. 
4679-80 (Robitaille); Tr. 11,605 (Guerney); GX 98, at 21-22; see 
also Pareri Dep. 157-60. Given the acknowledged fiscal instability 
of the City and school district and the projected decreases in



future student enrollment, at least some efforts to redress this 
condition would normally have been expected. While fiscal 
imprudency or inefficient management and operation of a school 
system is not necessarily indicative of improper intent, the 
present record persuasively demonstrates departures from 
previously followed neutral considerations and a failure to rectify 
recognized educational and fiscal problems primarily where racial 
consequences were also present. The failure to adopt either Phase 
II or any desegregative portion of, or alternative to, the Phase II 
plan, or to remedy the recognized educational and school 
utilization disparities within the school system, thus transcends 
mere inefficiency or lack of sound educational judgment. The 
record demonstrates that racial factors were responsible in 
significant part for the Board's failure to alleviate the 
segregated condition of Yonkers public schools.

In sum, this Court concludes that racially related 
factors were in part responsible for the community oppostion to 
Phase II and for the Board's subsequent failure to implement either 
this plan or any other desegregation proposal. We are fully 
mindful of the controversial nature of busing, the many responsible 
authorities who have propounded both its virtues and its short­
comings, and even legislative expressions regarding busing as an 
integrative tool of last resort. It is not the function of this 
Court to deal at this stage of the proceedings with this difficult 
sociopolitical and educational conflict. It is our duty, however, 
to determine whether the Board's conduct under the facts and 
circumstances of this case reflected what it perceived to be the

4 ^ 7



partly racially influenced concerns or attitudes of others. Based 
on our review of the recorded and documented expressions of 
community opposition to Phase II; the testimony of Board members 
and other school officials regarding the nature, both actual and 
perceived, of community opposition to Phase II; the objectively 
favorable financial and utilization-related benefits of the plan; 
the Board's failure to meaningfully respond to and implement the 
alternatives suggested by the community and by Board members 
themselves; the previous circumstances leading up to the Board's 
failure to Implement Phase II or any other desegregative alterna­
tive, including the integration-related pronouncements of state 
education authorities; the Board's inconsistent treatment of 
busing for non-integrative purposes; and the inconsistency or 
unpersuasiveness of other proffered explanations for the Board's 
inaction, we find that the Board's failure to implement a 
desegregation plan for the Yonkers public schools was prompted in 
part by the community's racial resistance to school desegregation. 
The legal consequences of the Board's failure to desegregate the 
Yonkers public schools is a separate issue which is discussed below 
in our Conclusions of Law.

4T ?



V. THE CITY
The operation of the Yonkers public school system is the 

legal responsibility of the Board of Education. In practical 
terms, however, the present condition of Yonkers public schools 
cannot be understood without examining the manner in which the City 
of Yonkers, through its elected officials, has been involved in 
educational affairs. A 1957 New York State Education Department 
study of the Yonkers public schools concluded that "[t]he people of 
Yonkers in actual fact have two boards of education operating their 
schools. The city council and manager constitute one board and the 
legally designated board of education the other." GX 45, at 17. 
The City's role in the operation of the school system and the 
racial consequences of the City's policies and practices concerning 
both housing and schools, are the subjects of the remainder of our
findings.
A. Interrelationship Between Housing Practices and School 

Segregation
The impact of the City's housing practices has not been 

limited to the perpetuation and exacerbation of residential 
segregation in Yonkers. Rather, the City's pattern of confining 
subsidized housing to Southwest Yonkers and its persistent refusal 
to locate such housing in other areas of the city has contributed 
to the perpetuation of school segregation as well.

AS with the impact of the City's site selection practices 
on residential segregation in Yonkers, the evidence suggests that 
the segregative impact of the City's housing practices on the 
schools was not purely inadvertent, unknowing or unavoidable. 
While the City is not responsible for the formulation of attendance

4 ^ ^



zones or student assignment policies, it cannot credibly deny its 
awareness of the Board's adherence to a neighborhood school policy 
and the segregative impact of its housing practices on the schools 
in light of this fact. E ^ ,  Tr. 1100 (Yulish), Tr. 2884-85, 3097- 
99 (Arcaro), GX 385. On the contrary, the city persisted in its 
failure to pursue desegregative housing practices, such as 
scattered site housing, despite the suggestions of school officials 
and others that such practices were necessary to avoid the 
segregative impact of the City's geographically confined subsidized 
housing practices on Southwest Yonkers schools. Alloto Dep. 16-18, 
Tr. 4323-26 (Barrier), see also Tr. 13,150 (Dodson), GX 272, GX 
1094.50 (1970 letter from homeowners' association to City Council 
and Mayor stating that Tt]he continuance of minority racial 
concentration in this or any other area can lead to a busing 
situation in the Immediate future which all of us wish to avoid.-), 
C-352. Indeed, the evidence demonstrates more directly that the 
City's aversion to the desegregative development of subsidized 
housing in Yonkers was based in part on community opposition to the 
racial Impact which such housing would have had on the Bast and 
Northwest Yonkers community, including its schools. Tr. 986 
(lannacone), p-i 106-26 (GX 1063.13), see also HODSING VII supra, 
SCHOOLS V.E.l ijjf^. The City's segregative housing practices also 
were adhered to despite an awareness that these practices would 
result in the enrollment of additional students in physically 
inadequate Southwest Yonkers schools ( e ^ ,  GX 198, 272, 385, 
1095.9, P-I 110-9, SCHOOLS IV.A.2.b supra). a condition which 
resulted in dlstrlctwlde disparities in school facility utilization

A-io



and eventually led to the school district administration's 
formulation of the Phase II plan. That the Board failed to 
minimize or eliminate the impact of the City's housing practices on 
the schools in no way negates the fact that, as a factual matter, 
the City's housing practices contributed to the perpetuation and 
aggravation of residential segregation and the resulting 
segregation of the schools. The above evidence, together with the 
evidence of the City's intentional perpetuation of residential 
segregation, demonstrates that the City not only was aware of the 
overall impact of its subsidized housing practices on Yonkers 
public schools but also intended to preserve the racially 
segregative impact of these practices on the schools.

In addition to the testimony of the City's expert. Dr. 
Eric Hanushek, regarding the impact of the City's housing practices 
on minority residential patterns, the Board's expert. Dr. Armor, 
analyzed the impact of these practices on Yonkers public schools. 
Dr. Armor's analysis was designed to determine what the racial 
composition of particular schools would have been had particular 
subsidized housing projects not been built. Dr. Armor calculated 
the number of students (by race) in specific subsidized housing 
projects and in the school to which these students were assigned. 
He then recalculated the minority enrollment in the school by 
hypothetically removing the subsidized housing project and placing 
a vacant tract of land in its stead, thus reducing the school's 
enrollment by the number of students residing in the housing 
project.

Dr. Armor found that the removal of two subsidized

431



housing projects in 1950 would have had no "significant" (5% or 
more) impact on the minority enrollment in the schools to which 
these students were assigned. He found that the removal of four 
projects in 1960 would have had no significant impact on the 
affected schools for two projects, and a segregative impact (v̂ _ê , 
a greater percentage minority student enrollment) for the other two 
projects (Schlobohm and Schools 6 and 12, and Mulford Gardens and 
School 12) . He found that the removal of eight projects in 1970 
would have had no significant impact on the affected schools for 
seven projects and a segregative impact for one project (Phillipse 
Towers and School 19). Finally, he found that the removal of nine 
projects in 1980 would have had no significant impact on the 
affected schools for seven projects and a desegregative impact for 
two projects (Schools 7 and 19). Based on the above analysis. Dr. 
Armor concluded that the placement of subsidized housing in 
Southwest Yonkers did not cause the Southwest Yonkers schools to 
become increasingly segregated. Tr. 11,882-900.

Like Dr. Hanushek's analysis. Dr. Armor's analysis unduly 
minimizes the confirmatory impact which the City's government- 
sponsored housing practices had on the already developing private 
residential segregation in the city and on the segregation of the 
schools. Even though the analysis established that minority
population growth in subsidized housing projects was generally not 
more rapid than in their surrounding neighborhoods, it disregards 
the extent to which the City's geographically uniform selection of 
subsidized housing sites and the concomitant increase in the 
absolute number of minority students in particular schools both

A'Ja



were likely to cause whites to leave the surrounding neighborhoods 
and discouraged whites from moving into those neighborhoods. Tr. 
8211 (Pearce). In addition, Dr. Armor acknowledged that the 
obvious impact of the City's housing practices was to preserve the 
racial segregation of Southwest Yonkers schools in comparison to 
East and Northwest Yonkers schools. Dr. Armor recognized that 
schools in these latter two areas would have had significantly 
greater minority student enrollments if subsidized housing projects 
with rent-ups similar to those which existed in Yonkers had been 
located in these areas. Tr. 11,900-01. In light of the above and 
our previous discussion of the segregative impact of the City's 
site selection practices, see HOUSING VI supra, we find that the 
evidence persuasively demonstrates that the City's housing 
practices were responsible in significant part for perpetuating and 
exacerbating the systemwide racial segregation of Yonkers public 
schools. See also Arthur v. Nyguist, supra, 415 F.Supp. at 968; 
cf. Armstrong v. O'Connell, 463 F.Supp. 1295, 1304 (E.D.Wis. 1979) 
(rejecting analysis by Dr. Armor of segregative impact of school 
board's discriminatory acts since analysis "assumes that ... no 
other neutral and nondiscriminatory actions would have been taken", 
ignores psychological effects of discriminatory acts, and fails to 
consider that discriminatory conduct "may have an effect beyond 
that felt by the persons, or in the schools or districts of
immediate impact").

With respect to the impact of school segregation on 
housing patterns. Dr. Armor also questioned the extent to which the 
racial composition of a school, apart from the racial composition



of the surrounding neighborhood, was a significant factor in 
causing residential segregation. Tr. 12,156-57 . Dr. Pearce, on
the other hand, testified that the racial composition of a school 
was an important factor in shaping residential relocation and
housing choices. Tr. 8211, 8307-08.

While the precise quantification of the impact of school 
segregation on housing patterns is an elusive task, the inter­
relationship between the racial composition of schools and the 
impact on residential segregation has been repeatedly recognized by 
courts examining the causes and effects of school segregation. 
Columbus Board of Education v. Penick, supra, 443 U.S. at 465 n.l3; 
Keyes v. School District No. 1, supra, 413 U.S. at 202; United 
States V. Board of School Commissioners of Indianapolis, supra, 573 
F.2d at 408-09 n.20; NAACP v. Lansing Board of Education, supr_a, 
559 F.2d at 1049 n.9; Armstrong v. O ’Connell, supra, 463 F.Supp. 
at 1307; Evans v. Buchanan, 393 F.Supp. 428, 436-37 (D.Del.), 
aff'd, 423 U.S. 963 (1975); Hart v. Community School Board of 
Brooklyn, New York School District # 21, 383 F.Supp. 699, 706 
(E.D.N.Y. 1974), aff'd, 512 F.2d 37 (2d Cir. 1975). As the courts 
noted in Arthur v. Nyguist, if school desegregation suits "have 
shown anything, they have demonstrated convincingly, in the words 
of Judge Weinstein, that ' [h]ousing and school patterns feed on 
each other. The segregated schools discourage middle class whites 
from moving into the area and the segregated housing patterns lead 
to segregated schools.' Hart v. Community School Board, supra, 383 
F.Supp. at 706." 415 F.Supp. at 968 (footnote omitted). Also
probative of this phenomenon is the direct evidence indicating -that 
City officials in Yonkers were aware of and in some instances

4'?'^



attempted to accommodate the segregative consequences of this 
interrelationship through the alteration of school attendance zone 
lines. See SCHOOLS V.E.l infra. We find that the racial 
segregation of Yonkers public schools, as in many other 
communities, has contributed to the residential segregation of the 
City both in deterring relocation to and in encouraging relocation 
from areas with racially imbalanced minority schools.

To be sure, demographic residential patterns and 
perceptions regarding the quality of schools are also important 
factors in determining individual housing choices. See SCHOOLS 
IV.B.5 supra. Yet in a community such as Yonkers, where patterns 
of racial segregation closely parallel disparities in the 
educational quality of schools, it is unrealistic and impracticable 
to separate the impact of the racial composition of the schools on 
housing patterns from the community's perceptions regarding the 
relative educational opportunities available in Yonkers public 
schools. And to the extent that housing choices in Yonkers have 
been based on demographic features, the City's discriminatory 
housing practices have, as already noted, contributed to the 
segregative demographic patterns upon which such housing choices 
were based. It is this contribution to, perpetuation of, and 
enhancement of the school-housing spiral the placement of
subsidized housing virtually exclusively in Southwest Yonkers, the 
direct impact of this practice on residential and school 
segregation in the city, and the resulting impact on private 
housing and school choices, leading to further segregation —  for 
which the city bears substantial responsibility.

^ ^ 5



B. Budgetary Control
The Yonkers School District is, by virtue of state law, 

fiscally dependent on the City of Y o n k e r s . U n d e r  state law, the 
Board must prepare each year an itemized budget of its estimated 
expenditures for the following fiscal year. In Yonkers, this 
budget is prepared initially by the Superintendent of Schools and 
his or her staff and consists of a line-by-line itemization of 
specific expenditures. The bulk of the school district's budget 
typically consists of expenditures for salaries and employee 
benefits for instructional staff; building maintenance and 
utilities; debt service payments for school construction and 
rehabilitation, and educational program and curricular development 
expenses.

Once the Board adopts the budget, it is submitted to the 
City Manager, who is responsible for reviewing budget requests for 
all City departments. The City Manager reviews the budget on a 
line-by-line basis in order to determine its overall reasonable­
ness. The budget is then submitted to the City Council's budget 
committee, at which time a line-by-line review is again performed. 
The City Council also holds public hearings on the school 
district's budget request, as with other City department budgets. 
State law provides that the City Council may increase, diminish or 
reject any item in the budget other than fixed costs for which the 
City is liable. Once the City appropriates a specific dollar 
amount for the total school district budget, the Board is permitted 
to spend the allocated funds for any educational purpose. Since 
the bulk of the school budget consists of fixed costs, or



"mandated" expenses, such as personnel costs, reductions in the 
Board's budget request typically affect educational programs and
services. Tr. 5025 (Jacobson).

Apart from the Board's annual budget appropriation, the
Board has also utilized the "special estimate" procedure as a means 
of receiving additional operating funds. The special estimate is a 
specific request for additional funds from the City to be used for 
a specific purpose, such as school construction and rehabilitation, 
specific educational programs such as summer school and adult
education, or educational materials and equipment. The special 
estimate is either approved or disapproved by the City Council, a 
process which effectively results in a line-by-line review of 
school district budgetary needs. The procedure is thus an 
additional means by which City budgetary control over educational 
affairs may be exercised, a fact which prompted the New York State 
Education Department to recommend that the use of the procedure be 
eliminated. GX 45, at 20. While the City Council has in fact used 
the special estimate procedure in at least one instance to attempt 
to influence educational policy decisions of the Board, GX 194 
(return of special estimate in 1954 based on Board's decisions 
regarding Schools 1 and 2), the record as a whole reflects 
consistent City approval of special estimate requests. E ^ ,  GX 
177, 348, 349, 404. The special estimate thus represents a means 
for the City to exercise greater control over school affairs which
has in practice been generally uncontroversial.

The Board, like other City departments, also receives 
appropriations from the City for capital expenditures. Until the



mid-1960's, the Board received capital funds by submitting 
individual special appropriation requests for capital items 
directly to the Common Council (as the City Council was formerly 
known). Since 1964, the capital budget process has been 
significantly more elaborate. Capital expenditure requests for the 
Board and all City departments now take the form of five-year 
Capital Improvement Program, budget requests. The Board's capital 
budgets, which typically include requests for school construction, 
rehabilitation or expansion and the purchase of equipment, are 
submitted to the City's Capital Improvement Projects Committee, 
which collects and reviews capital expenditure requests for all 
City departments. Pursuant to City law (Local Law 12), the Board's 
capital budget request is submitted to the City's Planning Board 
for further examination in light of the City's Master Plan. The 
Planning Board then makes a budget allocation to the Board, a 
decision which is reviewable by the City Council.

Although the Board is an independent body under state 
law, the impact of this budgetary scheme has been to vest in the 
City considerable influence and indirect control over school 
affairs. Although former Mayor Alfred Del Bello (1970-74) and 
former City Manager Charles Curran (1952-63) testified that school 
budgets were subjected to less scrutiny than budgets of regular 
municipal departments, the fiscal dependency of the Board has 
nevertheless been accompanied by an indirect but increasing 
municipal role in determining how educational decisions are made by 
school officials. A 1934 Columbia University study team noted that 
"[i]n actual practice, the placing of responsibility for the school



budget in the hands of the [City] operates to center control of the 
educational program in the general municipal authority." SB 10, at 
2. Although state law permits the Board to spend its lump sum 
budget allocation as it sees fit, the report noted that the 
contention that the Board thus maintains full control over 
educational programs "seems scarcely to be justified in the light 
of the actions taken by the board of education in an attempt to 
balance its budget." Id. at 3. A 1957 New York State Education 
Department report echoed these findings, noting that although under 
state law the Board is solely responsible for the educational 
function in Yonkers, the city, largely because of its fiscal 
control over the school district, in fact has "two boards of 
education operating [its] schools." GX 45, at 17. The report 
observed that "Yonkers school officers have failed to do all they 
know needs to be done because of confusion of responsibility and a 
legal inability to provide the needed money" and recommended that 
state law be changed to give the Board greater fiscal independence
and responsibility over school affairs. 1^ . at 13-14.

The City's budgetary influence over school affairs has
continued throughout the 1970's. School officials have repeatedly 
recognized that the school district's fiscal dependency has in fact 
resulted in a politicization of educational affairs. For example, 
the school district's evaluation of the 1972 NYU Report proposals 
regarding the high schools occupational education programs was 
affected substantially by what school officials perceived to be the 
political infeasibility of their implementation. The district's 
responsiveness to these political concerns contributed to the

43^



rejection of the report's variable access proposal in favor of a 
more costly but more educationally limited reform. In this 
connection, Assistant Superintendent Stanley Schainker accurately
noted that

I think everyone here probably knows that the 
Yonkers School Board, in essence, or the school 
district was fiscally dependent upon the City 
of Yonkers and decisions made by the city 
manager, city council, mayor, et cetera,so it 
wasn't as if, you know, we had the ability to 
raise our own money that we needed to do what 
we talked about doing. We, in essence, had to 
convince another series of people, most of whom 
were elected by the community, and to the 
extent that the community resisted the idea, 
any idea, it seems to me that that would have some impact upon the people who owed election 
to those same individuals.

Schainker Dep. 
generally that

42-43. Similarly, Superintendent Alioto recognized

[Ojbviously any major expenditure level would 
require the consent of the City Council so in putting together, for example, the NYU report 
one would have to consider that we were treat­
ing with equity all parts of the City that would touch on all City Council geographic 
areas because the Council did not have a 
history of supporting —  let me put it another 
way. They sort of had a policy of jealously 
guarding. If their pothole wasn't getting 
fixed, nobody's would and I think that had to 
be a major consideration in putting together a 
package for reform or change.

Alioto Dep. 42.
The impact of the Board's fiscal dependency was 

observable in a number of instances during the 1970's. School 
officials both expressly and implicitly acknowledged the effect of 
the City's budgetary control over educational decisionmaking and 
the gradual attempt by City officials to exercise greater control 
over school affairs largely by virtue of their economic

4°IC



relationship with the Board. This phenomenon was manifested in a 
number of ways; for example. Board member Charles Curran's 
perception that the City Manager was attempting to take over the 
Board, GX 157; the Mayor's creation of a Citizen's Budget Advisory 
Committee to supplement the City's own budgetary review process —  
a committee which engaged in a detailed analysis of the Board s 
budget requests and a questioning of the Board's educational needs 
and goals, GX 167, 168; the City budget director's critical
assessment of the Board's occupational education budget requests, 
GX 351; Superintendent Alioto being assigned the responsibility of 
improving City/Board cooperation as his sole priority for 1975, GX 
128. While this scrutiny of educational funding is not inherently 
unjustifiable and was generally resisted by school officials, the 
fact remains that the City's indirect but significant role in 
shaping the educational programs in Yonkers public schools gave it 
significant influence over school affairs and in some instances 
impeded the Board's practical ability to effectuate educational
reforms.

The clearest example of the negative impact of the 
Board's fiscal dependency occurred in 1976 when the City's fiscal 
crisis resulted in sizable reductions in the school district's 
budget. The school district bore a significant share of the City's 
budget cutbacks, with the Board receiving 9.1% less than its annual 
budget request, a decrease of approximately $ 6 million. GX 160, 
207; Tr. 5161-63 (Morris). The 1976-77 school year was marked by 
further cuts in the school district's budget amounting to over $9 
million as a result of the state's imposition of fiscal restraints

4^1



on the city. These budget cutbacks had a significant disruptive 
impact on educational programs in the city, with Southwest Yonkers 
schools suffering from particularly severe reductions in staff and 
specialized or remedial educational programs. See SCHOOLS 
IV.A.S.b, IV.B.2 supra.

The influence of the City's budgetary power on school 
affairs was overshadowed by other concerns during the Board's 
consideration of the Phase II plan. Financial considerations 
with respect to the City's budgetary influence over school affairs 
played a relatively insignificant role in the Board's evaluation of 
the plan; the recommended school closings and primarily state- 
subsidized transportation would have resulted in net reductions in 
fiscal expenditures. Thus, to the extent that fiscal matters were 
at all relevant to Phase II, such concerns related primarily to the 
relative fiscal merit of the plan and its financial feasibility 
rather than a concern that the City's budgetary control over the 
Board would preclude its successful implementation. While City 
Council members and the Mayor publicly expressed opposition to the 
plan, the financial considerations noted above effectively 
minimized the issue of budgetary approval in the Board's 
consideration of Phase II.

While the City's budgetary influence and indirect control 
over educational affairs has impeded the Board's ability to 
exercise its responsibility for operating the Yonkers public 
schools in a truly independent manner, the record does not 
demonstrate that the detrimental impact of the Board's fiscal



dependency has been the result of budgetary actions by the City 
intended to perpetuate the racial segregation of the Yonkers public 
schools. This conclusion, however, is more a consequence of the 
Board's own inaction rather than any absence of segregative intent 
on the part of the City: because of the Board's independent
failure to put forth any significant desegregative school reorgani­
zation proposal requiring the City's budgetary approval, we are 
unable to and need not determine whether the City would or would 
not have acted in a manner consistent with its actions relating to 
subsidized housing, mayoral appointments, or other areas of school 
affairs. While the school district's rejection of the 1972 NYU 
Report was influenced by the perceived infeasibility of obtaining 
City Council approval, the City was essentially never afforded an 
opportunity to formally indicate its budgetary approval or 
disapproval of the plan. Although the effect of the City's 1976 
budget cutbacks on the school district, and Southwest Yonkers 
public schools in particular, was severe, the fiscal considerations 
underlying this action dispel any argument that racial factors 
played any role in the City's action. Finally, the City's 
willingness to fund school desegregation plans —  a telling 
indication of its segregative or desegregative intent (Arth^ v. 
Nyquist, supra, 573 F.2 d at 145) —  was not tested by virtue of the 
Board's refusal to adopt any such plans prior to the filing of this
lawsuit.

4 ^ 3



C. Mayoral Appointment of School Board Members
In addition to the City’s budgetary control over the 

Yonkers School District, the Mayor plays a significant role in 
educational affairs through the power of appointment. Under the 
New York State law, the Mayor of Yonkers is empowered to appoint 
members of the Board for five-year terms of office. Once 
appointed. Board members are subject to removal only for a refusal 
to serve or neglect of duties. N.Y. Educ. Law § 2553(3), (8 )
(McKinney 1981). The Mayor has generally maintained little 
personal contact with his appointees subsequent to their 
appointment to the Board. Tr. 11,729 (O'Keefe); Tr. 13,577
(Lester).

Prior to the terms of Angelo Martinelli, Yonkers' Mayor 
from 1974-79 and 1982 to the present time, many Board members 
served more than one term and were frequently reappointed by mayors 
other than those who initially appointed them to the Board. Over 
the twenty-five years prior to Mayor Martinelli's terms of office, 
twenty-two of the Board's thirty-three trustees were reappointed by 
a successor mayor. SB 486. In contrast, not a single Board member 
who was serving at the time of Martinelli's 1973 election as Mayor
was reappointed. Id.

Mayor Martinelli's election to office was followed by 
increased efforts to obtain greater influence over educational 
matters. The Mayor's initial efforts took a number of forms. Soon 
after his election. Mayor Martinelli spoke to Superintendent Alioto 
and the Board in executive session and indicated his interest in 
obtaining influence over Board personnel decisions relating to the



hiring of non-teaching staff such as custodians and groundskeepers. 
Mayor Martinelli's request provoked strong protests from school 
officials and Board members. Mayor Martinelli responded by 
emphasizing his power over Board appointments and his intention to 
exercise it in a manner which would make the Board more responsive 
to his educational goals. Tr. 5028-29 (Jacobson); Alioto Dep. 27- 
29; Jungherr Dep. 7-9.

The Mayor also sought to influence matters relating to 
student assignments. In April 1974, the Mayor requested that 
students from a small predominantly white area of the School 3 (60% 
minority) attendance zone be reassigned to School 27 (12%
minority). Donald Batista, the school district's Assistant 
Director of Pupil Personnel, recommended that the request be 
rejected, noting that the impact on student enrollment was 
negligible and that "[t]here is potential for a greater community 
reaction since it appears that the district line is being 
gerrymandered.” SB 206. As a result, the district line remained 
unchanged. Tr. 13,433—36 (Frank). During his tenure as Mayor, 
Martinelli also urged the Board to convert the school system into a 
K-8 , 9 - 1 2  grade structure, thus returning sixth, seventh and eighth 
grade students to elementary schools. This proposal was rejected
by the Board. Tr. 5089 (Jacobson).

In March 1974, the Mayor made his first Board
appointment, naming Angelo Paradiso to the Board. Paradiso, the 
principal of Saunders Trades and Technical High School from 1964 to 
1973, had resigned his post in 1973 after a dispute with 
Superintendent Alioto concerning the Saunders screening process and



Paradise's unwillingness to address the problem of the 
disproportionately low number of minorities at the school. Paradise 
was a stong advocate of the self-contained vocational school, 
rather than the comprehensive high school concept, an educational 
philosophy shared by Mayor Martinelli but which was slowly coming 
under increased scrutiny by school officials. GX 1018; Tr. 7676 
(Martinelli). Later that year. Mayor Martinelli appointed Paradise 
to the City's Saunders site selection committee, a committee 
established independently of the Board's committee to examine 
alternatives for the relocation of the school. GX 660.

Mayor Martinelli's second appointment was Curtis 
Giddings. Giddings, who is black, was chosen to replace Wiley 
Hammond, a retired school administrator, who was also black. Prior 
to his appointment, Giddings was a teacher, guidance counselor, and 
administrator in the New York City public school system. C-1424.

Mayor Martinelli's 1975 Board appointment were signifi­
cantly more controversial. On May 1, 1975, the Mayor appointed Anne 
Boeik and Morton Wekstein to the Board. GX 251. Like Paradiso, 
Boeik, a former Yonkers public school teacher and elementary school 
principal (Schools 18 and 24), had retired one year earlier under 
pressure from Superintendent Alioto's administration. According to 
Assistant Superintendent Stanley Schainker, Boeik's retirement was 
prompted by unfavorable job evaluations based on her performance as 
principal of School 18. This evaluation was based on her 
ineffectiveness in planning as well as her use of racial slurs and 
other racially insensitive behavior toward minority students. 
Boeik's treatment of minority students in this manner was recalled

+“10



by several administrators and school teachers in the district. Tr. 
4377 (Barrier); Tr. 5530-36 (Davis); Schainker Dep. 64-67; Gold- 
Marks Dep. 59-60, 104. Soon after her retirement from the
district. State Senator John Flynn wrote to Mayor Martinelli, 
recommending that Bocik be appointed to the Board based on her 
educational experience and her ethnic (Slavic) background. C-1405. 
Former City Councilman Nicholas Benyo, leader of Yonkers United 
Slavonian American League, also urged her appointment based on her 
ethnic background. Tr. 7669-70, 12,369 (Martinelli). Prior to her 
appointment. Board president George Minervini advised Mayor 
Martinelli not to appoint Bosic to the Board. Although Mayor 
Martinelli knew of Bosic's retirement from the school district, 
Martinelli testified that Minervini gave no explanation for his 
advice and that Martinelli did not request anv. Tr. 7667-70.

Morton Wekstein was Mayor Martinelli's personal 
attorney. At the time of his appointment to the Board, Wekstein's 
law partner was representing a number of school administrators who 
had been considered ineffective by Superintendent Alioto.

The appointment of Bocik and Wekstein to the Board was 
met with widespread protests and denunciations from various 
segments of the community. Representatives of the minority 
community publicly criticized the Bocik appointment based on her 
racially discriminatory behavior and filed a complaint with the New 
York State Education Department regarding the appointment. GX 226, 
at 46,049; Tr. 3554 (Ross). Wekstein's appointment was questioned 
because of his alleged conflict of interest. GX 226, at 46,048; 
251. In a press release. Superintendent Alioto stated that in



selecting "an ex-principal who was requested by me to retire early 
and an attorney from a firm which represented the Mayor himself as 
well as school district employees with grievances against the 
district. Mayor Martinelli was attempting to make "good his pledge 
to take over the Board of Education in retaliation for my 
persistent refusal to provide him with Board of Education jobs on 
which to build his political career." GX 136. Board president 
Robert Jacobson similarly decried the "definitely political nature 
of the appointments. GX 136,224. Upon being personally confronted 
about the Bocik appointment in particular, Mayor Martinelli 
defended his decision based on her ethnic background. Gold-Marks 
Dep. 63-65; ^  also Tr. 3554-55 (Ross). While Bocik served her
full five-year term, Wekstein resigned less than one year later 
based on his anticipated legal representation of Mayor Martinelli's 
brother, a long-standing client and owner of the Yonkers Home News 
and Times, in a lawsuit involving the City Council's designation of
an official newspaper. C-1408.

Two significant school-related events occurred between 
the Mayor's 1975 and 1976 appointments to the Board. First, in 
response to the concerns expressed by the Yonkers NAACP over the 
increasing racial imbalance in Yonkers public schools, the Board, 
led by Board president George Minervini, established the Task Force 
for Quality Education. Minervini appointed Winston Ross and Herman 
Keith of the Yonkers NAACP to serve as members of the ten-member 
Task Force. Second, the Board adopted a controversial and strongly 
opposed plan to close seven schools in order to comply with budget 
cutbacks imposed by the City as a result of its fiscal crisis.



Along with most of the East Yonkers community, Mayor Martinelli 
actively opposed the closing of Schools 4 and 15 in East Yonkers 
and participated in vigorous efforts to reverse the decision. 
SCHOOLS IV.A.S.b supra.

By this time. Mayor Martinelli's efforts to gain control 
over educational affairs through his Board appointments were 
increasingly recognized by Board members and school administrators 
alike. Retiring Assistant Superintendent Stanley Schainker noted 
that he was "deeply concerned about the increasing efforts of some 
to politicize the schools for their own personal aggrandizement 
and stated his belief that "those efforts already have had a 
negative impact upon the operations of the Board of Education." GX 
130. Other school officials similarly indicated that Mayor 
Martinelli had expressed his intent to exercise his appointment 
power in a manner which would give him control over the Board. 
Alioto Dep. 29; Tr. 11,083-85 (Jacobson); GX 224.

In the aftermath of Wekstein's resignation, Winston Ross 
wrote to Mayor Martinelli, requesting that he consider appointing a 
hispanic to the Board. GX 241. Mayor Martinelli responded by 
emphasizing that his appointment would be "based on the quality of 
the individual irregardless of racial background", GX 242, a 
position somewhat inconsistent with his recent ethnically- 
motivated appointment of Anne Bocik and his subsequent appointment 
of John Romano to the Board. In April 1976, Mayor Martinelli 
appointed James O'Keefe to the Board. O'Keefe, a realtor from 
Northeast Yonkers, was strongly opposed to the closing of School 15 
and led the Taxpayers of North East Yonkers organization in their



public opposition to the school closing. Upon being appointed to 
the Board, O'Keefe, like Martinelli, continued to press for a 
reversal of the Board's decision to close the school. GX 187; SB 
867.

As in 1975, the Mayor's 1976 Board appointments were 
controversial. In May 1976, the terms of George Minervini and 
Rosemarie Siragusa were scheduled to expire. One month earlier, 
Minervini, who had been instrumental in establishing the Task 
Force for Quality Education, appointed Siragusa to the Task Force. 
GX 931. Both Minervini and Siragusa were generally regarded as two 
of the Board's strongest advocates of school desegregation in 
Yonkers. Siragusa, like Minervini, also had voted to close Schools 
4 and 15, and had declined to accept the Mayor's invitation to 
participate in a "walk" in protest of School 15's proposed closing. 
GX 134, 255. The Council of PTA's recommended their reappointment, 
with Council of PTA's officer Audrey Roshkind recalling the 
"tremendous job" which Minervini had done as a Board member. 
Roshkind Dep. 140; Tr. 5296-97 (Frauenfelder) . The Yonkers NAACP 
also recommended that both trustees be reappointed to the Board. 
Tr. 3634-35 (Ross). Superintendent Robitaille, who had replaced 
Superintendent Alioto in December 1975, took the unusual step of 
personally recommending that the Mayor reappoint Dr. Minervini so 
that Minervini, the Board president who Robitaille described as an 
"exceptional individual," could lead the district "in a very 
difficult time." Tr. 4657-58. This recommendation was echoed by 
the endorsement of the Clergy of Yonkers as well. Tr. 4530 
(Klausner proffer) . Both Minervini and Siragusa expressed to Mayor

S o o



P4ai;tinelli their interest in continuing to serve as Board members.
Mayor Martinelli reappointed neither Minervini nor 

Siragusa to the Board. Although Mayor Martinelli testified that 
his decision to replace Dr. Minervini, a friend of the Mayor's, was 
ultimately made because of his membership on the Board which had 
previously agreed to add a job security clause to the teachers' 
contract, Tr. 12,372, Martinelli, in earlier testimony, expressed 
doubts that this factor influenced his decision. Tr. 7672-73.
Mayor Martinelli's refusal to even consider reappointing Siragusa 
was based not only on their disagreement on educational matters but 
also on her participation in political campaigns in which she 
opposed Martinelli's election as Mayor.^ Tr. 12,373-74
(Martinelli). While Mayor Martinelli denied that Minervini and 
Siragusa's position on busing was a factor in his decision not to 
j0 appoint them to the Board, Martinelli also acknowledged that by 
the time of the Phase II proposal the following year, he routinely 
asked Board candidates about their position on busing and that 
their response "probably weighed very heavily with me. Tr. 
12,411-12. Given the increased community awareness of school 
desegregation as an issue .which the Board and school administrators 
were beginning to address, the identification of the Task Force s 
efforts by some community members as supportive of "busing," the 
Mayor's own acknowledgement that busing became an issue of 
considerable importance in his appointment process, and the Mayor's 
subsequent appointments to the Board, we have difficulty concluding 
that Mayor Martinelli's refusal to reappoint either Minervini or 
Siragusa was not influenced by their generally well-known

5 b \



commitment to addressing the problem of racial imbalance in the 
Yonkers public schools and thus their potential willingness to
utilize busing as a method of doing so.

To replace Minervini and Siragusa, Mayor Martinelli 
appointed Joseph Spencer and John Romano to the Board. Spencer was 
a member (and later Chairman) of the Yonkers Conservative Party who 
supported the Mayor in his previous election campaigns but who had 
no prior particular involvement in educational matters. Spencer 
Dep. 21-23; Tr. 7674-75 (Martinelli). Romano, an attorney, was 
supported by the Congress of Italian-American Organizations and had 
helped pass state legislation enabling the City to use air rights 
for educational purposes, a technique which Mayor Martinelli had 
proposed in 1974 with respect to the Saunders Trades and Technical 
High School. Tr. 7676, 12,373 (Martinelli). Soon after their
appointment to the Board, Spencer and Romano voted against applying 
for state funding of the Board's Task Force for Quality Education.
P-I 59-24.

Mayor Martinelli's next Board appointment was made 
earlier than scheduled. The Board's decision to close Schools 4 
and 15 was followed by vigorous efforts to overturn the decision. 
In addition to instituting legal proceedings and engaging in 
various forms of public protest, the East Yonkers community also 
participated in two particular courses of action. First, members 
of the Board were subjected to repeated harassment and verbal 
abuse, with several trustees experiencing picketing of their 
businesses or homes. In September 1976, Board member Ian (Doug) 
Smith, a target of this harassment, resigned from the Board; In



his letter of resignation to Mayor Martinelli, Smith urged the 
Mayor to appoint an independent-minded trustee in order to ensure a 
balance in educational philosophies on the Board; in a letter 
appearing in the Hearld Statesman, Smith also bemoaned the 
"political machinations behind this personal harassment which led 
to his resignation. GX 162, 200. Smith's resignation was greeted 
with regret by community members and expressions of concern that 
the Mayor would respond by appointing a replacement who would 
enable him to gain control of the Board. GX 163, 261. At a Board 
meeting held immediately after Smith's resignation. Mayor 
Martinelli urged the Board to table a resolution calling for the 
return of the recently closed schools to the City. The Board, with 
non-Martinelli appointees Jacobson and Katherine Carsky 
dissenting, tabled the resolution. GX 187.

During the fall of 1976, the Northeast Yonkers community 
also established an alternative private school in response to the 
closing of School 15, action which prompted a lawsuit by the Board. 
One individual actively involved in opposing the School 15 closing 
and establishing the alternative school was Seelig Lester. Lester, 
an experienced educator who served previously as deputy superinten­
dent of the New York City public schools, was a strong advocate not 
only of reopening School 15 but also of the self-contained 
vocational school —  two positions known and shared by Mayor 
Martinelli. Tr. 7670-71, 12,406-07 (Martinelli); Lester Dep. 16- 
18. In November 1976, Dr. Lester was appointed to the Board. GX 
262. In May 1978, during the Board's consideration of Phase II, 
Lester became the first Board member to be reappointed by Mayor

5o3



Martinelli.
Mayor Martinelli's 1977 appointment to the Board, 

Dorothy DeRuve, was uncontroversial yet consistent with the nature 
of his prior and subsequent Board appointments. In May, Katherine 
Carsky's term as a Board member expired. Carsky, who had voted to 
close Schools 4 and 15 and opposed the delay in returning the 
schools to the City, had expressed to Mayor Martinelli her interest 
in continuing to serve on the Board. GX 205. Carsky was also 
supportive of the desegregative efforts of the Task Force for 
Quality Education. Tr. 3583-84 (Ross); see also Tr. 4663
(Robitaille). Mayor Martinelli instead appointed Dorothy DeRuve, 
a dental assistant from Northwest Yonkers, to the Board. Although 
the record fails to disclose whether Mayor Martinelli specifically 
inquired about DeRuve's position on busing, DeRuve opposed Phase II 
primarily because of the "assigned transportation" element of the 
plan. SB 815, at 6-9. In light of the Mayor's reliance on 
opposition to busing as a significant criterion in making his later 
Board appointments and the simultaneous and well-publicized efforts 
of the school district in the spring and summer of 1977 to 
formulate proposals for desegregating the schools, it is reasonable 
to infer that these considerations played some role in the Mayor's 
1977 Board appointment.

In April 1978, just after the public hearings on Phase 
II, Curtis Giddings, the Board's only black member, resigned from 
the Board after moving out of Yonkers. Yonkers NAACP President 
Winston Ross wrote to Mayor Martinelli, requesting that he appoint 
a black to replace Giddings. Ross specifically recommended former



Yonkers NAACP President Herman Keith based on his sincere 
enthusiastic interest" in the welfare of minority students. GX
238. Mayor Martinelli flatly rejected this recommendation based on 
Keith's previously expressed opposition to the Mayor s policies, 
and urged Ross to submit recommendations for persons "who at the 
very least have taken a neutral position with regards to the 
policies and programs which I espouse." GX 239. At the same time. 
Vice Mayor Arthur Freddolino introduced three resolutions in the 
City Council requesting that Mayor Martinelli not appoint new Board 
members until their position on busing was made public and that the 
Board not vote on Phase II until the Board's three new appointees 
were named by the Mayor. GX 143. Mayor Martinelli also had 
expressed his own opposition to the Phase II plan, opposition not 
only based on his firm stance against "forced busing" but also 
reflecting his belief that only three of the district's twenty-five 
elementary schools and one of the district's seven middle schools 
were racially isolated. Tr. 7650-54 (Martinelli). Cf. GX 64; 
SCHOOLS IV.A.3.b supra.

Mayor Martinelli's three Board appointments in April and 
May of 1978 were consistent with these criteria and his own 
personal opposition to Phase II. In April, Mayor Martinelli 
appointed Quentin Hicks, who is black, to replace Curtis Giddings. 
Hicks, a Republican Party district leader, had been active in the 
past in the Warburton Ashburton Ravine Project Area Committee (a 
group which advocated the use of scattered site housing in Yonkers) 
and had become known to Mayor Martinelli through their contemporan­
eous service on the committee. Tr. 7665-66 (Martinelli); Hicks



Dep. 37. The Hicks appointment, however, was immediately protested 
by members of the black community who believed that Hicks was not 
representative of their interests. Tr. 3647-51 (Ross); Tr. 8373
(Keith). Although Mayor Martinelli denied knowledge of Hicks' 
educational philosophy, Hicks' opposition to busing was consistent 
with the selection criteria used by Mayor Martinelli at the time 
and was publicly articulated by Hicks at the time of his 
appointment to the Board. Hicks Dep. 49. As became clear the 
following month, Hicks' opposition to Phase II was based not only 
on opposition to busing but also on his conclusion that both white 
and black community members were opposed to racial integration of 
the public schools. See SCHOOLS IV.F.3 supra. One year later, 
Hicks was reappointed to the Board by Mayor Martinelli. In 1981, 
Mayor Martinelli acknowledged to Herman Keith that his appointment 
of Hicks to the Board had been an embarrassment to the black 
community. Tr. 7665-66 (Martinelli); Tr. 8374-75 (Keith).

In May 1978, Mayor Martinelli made two appointments to 
the Board. First, the Mayor reappointed Seelig Lester to the 
Board, an appointment which was consistent with his past 
qualifications as well es his opposition to the Phase II plan. 
Second, Mayor Martinelli chose Robert Weiner to fill the seat 
vacated by Robert Jacobson. By that time, Jacobson, an active 
Board member who was generally supportive of the Phase II plan, had 
concluded that Mayor Martinelli's decision to replace Board members 
Minervini and Siragusa had effectively thwarted any possibility 
that Phase II would be adopted by the Board. Tr. 11,139
(Jacobson). Although Jacobson did not discuss with Mayor



Martinelli the possibility of being reappointed to the Board, 
Jacobson had already concluded that his reappointment was unlikely 
and that he probably would not have continued to serve in any 
event. Tr. 4963, 11,135, 11,146. Weiner, Mayor Martinelli's 
former campaign manager, had asked the Mayor a number of times to 
consider appointing him to the Board. Weiner Dep. 54-56. Weiner, a 
known opponent of busing, was selected by Mayor Martinelli based on 
their mutual opposition to the Phase II plan. Tr. 7677 
(Martinelli); Weiner Dep. 86. In May 1978, the Board, now 
comprised solely of Mayor Martinelli's appointees, held a special 
workshop meeting at which Board members expressed their unanimous 
opposition to Phase II. See SCHOOLS IV.F.3 supra.

The Mayor's final two appointments were relatively 
uncontroversial but not devoid of overtly political design. After 
appointing Joseph Sayegh, a doctor of medical research who had 
worked since 1962 on the Mayor's Community Relations Committee, the 
Mayor, in the midst of a re-election campaign in which the Board 
appointment process was a frequently debated issue, appointed 
Arthur Natella to the Board. Natella, a retired Yonkers school 
principal from Southeast Yonkers, was appointed by Mayor Martinelli 
on the day of a mayoral debate in Natella's home community in an 
effort to deflate the criticism of the Mayor's previous Board 
appointments and to garner the support of the community. 
Subsequent to his electoral defeat in November 1979, the Mayor 
issued his State of the City address. In addition to commending 
the quality of the school district's new Superintendent and Board 
trustees. Mayor Martinelli emphasized that "we now have a Board of

5on



Education fully committed to neighborhood schools which is of 
critical importance to neighborhood stability in this city!" GX 
848b.

After the City's new mayor, Gerald Loehr, took office, 
the Board appointment process was changed. Since 1980, candidates 
for Board appointment have been recommended by a blue ribbon panel 
consisting of twelve to fifteen members appointed by the mayor. 
The panel chooses a small number of qualified candidates and 
submits their selections to the mayor. By the time this lawsuit 
was commenced in December 1980, the Board had failed to develop and 
implement any desegregative portion of or alternative to the Phase 
II plan and continued to retain the previously closed and unused 
School 4 facility. Mayor Martinelli, re-elected in 1981, has 
reappointed all Board members whose terms have expired since that 
time and thus has not reappointed any new members to the Board.

The Mayor's appointments to the Board reflect in clear 
and unambiguous terms the politicization of educational affairs in 
Yonkers. The record demonstrates that Mayor Martinelli's Board 
appointment power was utilized in a manner which would enable him 
to obtain indirect but significant influence over school affairs, 
influence which he had been initially unsuccessful in obtaining 
more directly. While Board members were generally free of outside 
influence from the Mayor subsequent to their appointment, the 
conduct of Board members was generally consistent with the Mayor s 
intentions and objectives in appointing them to the Board. Even 
when his earlier appointees (i.e., Paradiso and Bocik) occasionally



disagreed with his positions, such as the 1976 proposal to close 
seven schools which Mayor Martinelli adamantly opposed, the 
subsequent conduct of these trustees (in voting to delay returning 
the closed schools to the City and in opposing Phase II) and of 
Mayor Martinelli's subsequent appointments to the Board was 
indicative of the Mayor's successful exertion of considerable 
influence over educational affairs in Yonkers.

Mayor Martinelli's appointments to the Board went beyond 
the mere exercise of ordinary political discretion. Beginning in 
1976, mayoral Board appointments also became more directly related 
to Board members' views on matters concerning school desegregation. 
While the isolated appointment of a busing opponent or the single, 
unwitting appointment of a trustee with less than admirable views 
concerning minorities or school desegregation is perhaps an 
insufficient basis for inferring impermissibly discriminatory 
intent, see Arthur v. Nyquist, supra, 415 F.Supp. at 959 (Mayor's 
appointment of single trustee based on trustee's opposition to 
busing insufficient evidence of discriminatory intent), this is not 
such a case. Here there is a pattern of appointments, 
reappointments, and failures to appoint over time, with the 
consistent result of impeding the efforts of the school district to 
address the racial imbalance of the schools. In addition, the 
appointment of Board members must be viewed not in isolation but in 
conjunction with other contemporaneous occurrences in the city. 
The increasing efforts to establish a Board firmly committed to 
neighborhood schools dovetailed neatly with the City's most 
concentrated development of family-populated subsidized housing

5o°\



projects in Southwest Yonkers t̂ or about the beginning of Mayor 
Martinelli's first term, and the subsequent resistance to the 
development of subsidized housing in East Yonkers during the 
remainder of Mayor Martinelli's terms in office. The two patterns 
were of a piece: the City's segregative housing practices and the 
Mayor's appointment of individuals opposed to "busing" contributed 
significantly to the confinement of minorities in Southwest Yonkers 
and the Board's failure to undo the segregative effects of these 
and other practices on the schools. And in a city where the 
segregated condition of "neighborhood schools" is in part the 
product of official municipal design, the commitment to the 
neighborhood school system by the head of that same municipality 
can hardly be considered race-neutral. Cf. Arthur v. Nyquist, 
supra, 415 F.Supp. at 968-69 (school board’s adherence to 
neighborhood school policy not race-neutral where city officials 
have engaged in segregative public housing practices) .

5io



D. School Site Selection
The City has also played a significant role in the selec­

tion of sites for new schools. This participation originates from 
the City's legal responsibility for appropriating funds for the 
acquisition of land and the construction of school facilities. The 
Board initiates the site selection process by deciding whether to 
build a new school and where it wants the school to be built. The 
City's Planning Bureau assists in the site selection process by 
analyzing demographic patterns and making land use recommendations. 
Once the Board selects a particular site, it must submit its 
request to the City Council, which has final authority to approve 
or reject the site. The City retains legal title to land acquired 
by the City Council and designated for educational use. However, 
once the land is so designated, the City has no legal power to 
dispose of the property until the Board votes to return the school 
to the City. N.Y.Educ. Law § 2556 (9)(McKinney 1981); Tr. 8922 
(Curran).

In actual practice, the City's involvement in school site 
selection decisions has been considerable. While only three site 
selection decisions have been made since 1967 School 10, Yonkers 
High School, and the new Saunders Trades and Technical High School
_City officials played a central role in each of them. The extent
of the City's involvement, its impact on the site selection and 
school construction process, and its effect on racial imbalance 
will be examined for each of these schools.

511



1. Yonkers High School
Yonkers High School has served as the district's high 

school for Southwest Yonkers students since its inception in 1927. 
The school also enrolled students from Southeast Yonkers until 
1957, when the Lincoln facility in Southeast Yonkers too on a high 
school component. In 1944, Yonkers High School was relocated to 
the former Franklin Junior High School facility on Linden Street in 
Southwest Yonkers, and Franklin students were relocated to the 
former School 2 elementary school facility just two blocks away. 
Although the relocations were originally implemented as temporary 
war-time measures, the schools remained in their respective
locations for the next three decades.

Over the years, these two facilities were increasingly 
recognized by school officials and community members as physically 
inadequate for their respective student bodies. By the mid-1960's, 
school officials actively began to consider the selection of a site 
for the construction of a new Yonkers High School. The Board 
investigated eleven potential sites, with major consideration given 
to the Leake and Watts property, the Sutherland-Pelton Park site, 
the Sullivan Oval, and War Memorial Park. In December 1967, the 
Board requested that the City acquire land located at Sullivan Oval 
for the construction of the school. The Sullivan Oval site, 
located in a predominantly white residential section of Southwest 
Yonkers, consisted of park land and recreational facilities. The 
site was selected based on an examination of eight factors; 
location, area, topography, procurement, acquisition costs, 
development costs, community, and safety and access. Sullivan

5 1 Q



Oval's larger site size, lower acquisition and development costs, 
and the absence of any relocation burdens on community members were 
the primary factors underlying the Board's recommendation. P-I 46- 
53.

The Board's selection of the Sullivan Oval site provoked 
immediate and widespread controversy in the community. A large 
number of community organizations and city residents and the 
Westchester County Department of Parks, Recreation and Conservation 
opposed the selection of the Sullivan Oval site primarily because 
of its alleged impact on the availability of already scarce park 
space for recreational use by community members. The Parks 
Department and several City Council members suggested War Memorial 
Park as an alternative site, while other community members 
suggested the Sutherland-Pelton site. GX 278; P-I 46-38, 46-40. 
War Memorial Park is located just northeast of Getty Square in the 
heart of Southwest Yonkers, and the Sutherland-Pelton site is 
located on McLean Avenue in the southernmost portion of Southwest 
Yonkers. Both areas contained greater concentrations of minority 
residents than the Sullivan Oval site. Tr. 5183, 5253 (Morris); SB
742.3. On the other hand, the PTA's of Southwest Yonkers' Schools 
3, 18 and 27, Longfellow Junior High School and Yonkers High School 
urged City Manager Frederick Adler to support the acquisition of 
the Sullivan Oval site based primarily on the already protracted 
use of what community members and school officials recognized was a 
physically confining and inadequate school facility, as well as the 
continued use of the former School 2 facility for Franklin Junior 
High School students. GX 278.6, 278.7, 278.8, 278.10, 278.13. In

513



the spring of 1968, the City Council rejected the Sullivan Oval
site. Tr. 5185 (Morris); P-I 46-60, 46-63.

The remainder of the year and the next was filled with 
continued controversy surrounding the site selection for the new 
Yonkers High School. Community members and school and City 
officials continued to debate the site selection issue along the 
lines noted above, with a general division of opinion along 
"recreational use" versus "educational use" lines. P-I 46-75, 46- 
85, 46-87. The Board was also asked by Southwest Yonkers
residents, PTA members and the Yonkers High School Redevelopment 
Committee to redistrict the city's high schools so as to provide 
for a more equitable distribution of "physical facilities and 
educational opportunities." GX 493, 494. The Board did not
implement this suggestion but continued to adhere to its selection 
of Sullivan Oval as the site for the new Yonkers High School. 
Finally, in 1970 the City Council reversed its position and 
approved the construction of the new Yonkers High School on the 
Sullivan Oval site. Tr. 1255, 1408-09 (Del Bello); GX 1093.8,
1094.20. Construction of the new school commenced thereafter and 
the school opened in February 1974, with Franklin Junior High 
School students relocated to the old Yonkers High School facility 
the following year.

While the assignment of Southwest Yonkers high school 
students to the inferior Linden Street facility was an unfortunate 
circumstance, the record is devoid of evidence which demonstrates 
either that the City's role in selecting a new site for Yonkers 
High School is evidence of its control over the Board or that the

5 1 4



City's or Board's role in selecting the site was at all affected by 
racial considerations. While the 1968-69 delay in selecting a site 
for the school was the result of the City Council's rejection of 
the Sullivan Oval site, this delay was influenced by non-frivolous 
concerns unrelated to racial or even educational factors. In 
addition, the Board adhered to its original site selection despite 
strong opposition to its decision and the City's initial rejection 
of the Sullivan Oval site. The site was eventually approved by the 
City and was the most predominantly white of the three sites under 
active consideration by the Board. While Yonkers High School is 
presently racially imbalanced (62% minority) as compared to the 
district’s other high schools (47%, 2%, and 9% minority), we find 
that this condition was not deliberately caused by the conduct of 
the City or the Board in selecting the site for the new school.

2. Saunders Trades and Technical High School
Until 1980 the Saunders Trades and Technical High School, 

the district's vocational school, was located in the Getty Square 
area in downtown Southwest Yonkers. The school was significantly 
smaller than the district's other high schools and had long been 
recognized as a physically inadequate facility. GX 43, at 31-32 
(1957 New York State Education Department study recommending 
replacement of Saunders facility). As the school's reputation 
improved during the late 1960's and early 1970's, attention turned 
to either rehabilitating and expanding the Saunders facility or 
finding a new location for the school. In 1973, the school 
district rejected the NYU Report proposal to close the school and

51^



decentralize its programs throughout the district's regular high 
schools. The Board instead adopted a plan to rehabilitate and 
expand Saunders and to augment its occupational course offerings. 
See SCHOOLS IV.F.2 supra.

In the spring of 1974, a Board study concluded that the 
cost of constructing a new facility was not substantially greater 
than the cost of rehabilitating and expanding the existing Saunders 
facility. C-1403. As a result, school and City officials began to 
investigate the possibility of either rehabilitating Saunders or 
constructing a new facility. P~I 45-53, 45-55, 45-56, 45-71, 45- 
72. The City retained a consulting firm to perform a study, to be 
completed by September 1, of the possible construction of a new 
facility. P-I 45-72. In October, after the Board requested that 
the City expedite the completion of the study, the City established 
its own committee to investigate the various alternative courses of 
action with respect to Saunders. P-I 45-72, 45-73; Jungherr Dep. 
28-30. In January 1975, Mayor Martinelli also suggested the 
formation of a joint committee, composed of City and school 
officials, to pursue the Saunders investigation. GX 155; C-1403;
Tr. 12,364-66 (Martinelli). The Board instead formed its own 
committee, with school officials also meeting with the City s 
committee to discuss possible locations for a new Saunders 
facility. P-I 45-79; Jungherr Dep. 32-35.

From the outset. City officials, led by Mayor Martinelli, 
irj favor of building a new Saunders on the existing site. At 

the time, the City was developing plans to build a new civic center 
in an area partly occupied by Saunders. Mayor Martinelli advocated

SiG



the construction of the civic center over the new Saunders
facility, a plan which would allow the City to build the school at a 
greatly reduced cost by selling the air rights over the school, as 
provided for under state law, to the developers of the civic 
center. In January 1975, the CDA also recommended the construction 
of the new Saunders on its existing site based on a variety of 
economic and space-related considerations. GX 660, at 49,083-86.

At the same time, the Board conducted its own 
investigation into possible locations for a new Saunders. In a 
series of meetings held in early 1975, the Board's committee 
discussed a number of sites, eventually narrowing the selection to 
the Cook Field site in New York City, War Memorial Field in
Southwest Yonkers, and Pelton Field, also in Southwest Yonkers. 
Id. at 49,080. The existing site was considered inappropriate
because of site size limitations, but the committee recognized the 
importance of considering the use of air rights to finance 
construction of the school. Id. at 49,080, 49,082, 49,087, 49,089 
90. By March 1975, the committee was considering the War Memorial 
site and a site at Yonkers and Midland Avenues in Southeast
Yonkers. Id. at 49,071.- (The committee briefly considered the 
Burroughs Middle School as well. _Î . at 49,071, 49,073.) At a 
March 31 joint meeting of the City and Board committees. Mayor 
Martinelli spoke in favor of the War Memorial Park site and the 
existing site. 1 6 . at 49,068. One day later, the Board's
committee recommended the acquisition of the Yonkers Avenue site. 
P-I 45-107.

The Board's recommendation was adamantly opposed by the

s n



city. Mayor Martinelli and Alphons Yost, acting director of the 
CDA, spoke with schools officials and strongly urged them to 
consider selecting a site in downtown Southwest Yonkers. School 
officials continued to believe that the Yonkers Avenue site was the 
best location for the new Saunders. However, school officials were 
also cognizant of the Mayor's position and the realization that 
City approval was necessary to obtain a site for the construction 
of a new Saunders facility. As a result, the Board reconsidered 
its earlier decision and recommended that the new school be built 
on the existing site. Jungherr Dep. 55-59; Alioto Dep. 84-86.

The construction of the new Saunders never materialized. 
The city's 1975 fiscal crisis necessitated drastic reductions in 
the school district's budget and effectively terminated the 
district's plans either to build a new Saunders or to renovate the 
existing facility. GX 126, at 5. By late 1976, after the 
district's school closings and other budgetary cutbacks, "rumors" 
began circulating concerning the possible relocation of Saunders to 
the Burroughs Middle School facility in Central Yonkers. P-I 75 
25, at 39,251. By the spring of 1977, studies were conducted 
regarding the feasibility of such a relocation, and in June 1977 
the Advisory Council for Occupational Education recommended that 
the Saunders school be relocated to Burroughs. P-I 75-27, at 
42,995-96. This recommendation became part of the administration s 
1977 Phase II plan, was fairly widely supported by community 
members, and was adopted by the Board in April 1978. SCHOOLS
IV.F.3 supra.

While evidence concerning the Saunders site selection

S'!?



process illustrates the City’s influence over school site 
selection, the City's predominance in the site selection process 
was limited in its ultimate impact. To be sure, the Board s 
acquiescence in the City's site preference is evidence of its 
recognition that its fiscal dependence on the City had to be 
considered in making decisions as to the location of Saunders. As 
with the new Yonkers High School, however, the Board ultimately 
selected and obtained, after some delay, a site other than that 
which was initially recommended by the City and chose a site based 
on a variety of factors, none of which related in any measurable 
way to race. The new Yonkers High School was located in the most 
predominantly white location under active consideration, and 
Saunders was relocated to the new, physically superior Burroughs 
facility in Central Yonkers. Although the Board's selection of the 
Burroughs site was prompted largely by financial constraints which 
essentially precluded the City-supported construction of a new 
facility on the existing site, GX 98, at 16-17, the Saunders site 
selection process eventually resulted in a practical solution which 
was widely supported by community members, school administrators 
and the Board. The selection of a new site for Saunders was also 
largely devoid of racial considerations of either a desegregative 
or a segregative nature. In sum, the Saunders site selection is 
illustrative not only of the City's effective control over this 
aspect of school affairs but also of the absence of racial 
considerations throughout the Saunders site selection process.



E. Other City Involvement In School Affairs
The City's involvement in school district affairs has 

been manifested in a number of other ways. Three particular forms
of involvement are discussed below.

1. Attendance Zone Changes
On a number of occasions, City officials have proposed 

alterations in school attendance zone boundaries. While earlier 
proposals were relatively free of racial significance, a number of 
proposed changes during the 1970's were Consistent in their 
potentially segregative impact on the district's schools.

A number of City Council resolutions ̂ aUring the late 
1960's to mid-1970's dealt with the redrawing of school attendance 
zone boundarTes. GX 363, 389'’, 395'. ^̂ For example, in 1969
Councilmember Del Bello introduced a City Council resolution 
requesting that the Board consider altering' a junior' high school 
boundary line so as to reassign students in the northeast corner of 
the virtually all-white Burroughs (5% minority) zone to virually 
all-white Whitman (2% minority). The resolution also requested the 
City Manager to examine the feasibility of contracting for bus 
transportation for the affected students if a change in district 
lines was not possible.' GX 363. The'resolution was referred to the 
Superintendent and Board, and the district line remained unchanged.
GX 364.

In April 1974, Mayor Martinelli requested that a small 
predominantly white area of the School 3 (60% minority) attendance 
zone be reassigned to School 27 (12% minority). Donald Batista, 
the district's Assistant Director of Pupil Personnel, recommended



that the request be rejected, noting that the impact on student 
enrollment was negligible and that "[t]here is potential for a 
greater community reaction since it appears that the district line 
is being gerrymandered." GX 131, SB 206. As a result, the district 
line remained unchanged.

In August 1974, Councilmember Walsh requested that the 
school district rezone the predominantly white dogleg portion of 
the School 9 (28% minority) zone into School 16's (3% minority)
attendance area. According to an analysis prepared at the time by 
Jerry Frank, the school district's court liaison, the reason for 
the change was to enable parents in the area "to avoid School 9." 
SB 214 The analysis noted that the proposed change, which 
involved thirty-seveh students, would not affect the "social mix" 
at School 16, but _̂ would decrease School 9's white student

'  ;  » r  ■

population. Id.? Tr. 13,433-36 (Frank). This proposal was not 
adopted by the district.

During the district's implementation of the 1976 school 
c lo s in gs ,^ .  Alphons,̂ Yost;,̂ .,the Director of the City's Department of 
Development, suggested that the district alter the boundary 
separating School 9 ,(30% minority) and 16 (1% minority) so as to
include the dogleg portion of the School 9 zone in School 16's 
attendance zone. This proposal, involving from eighty-three to 122 
students, was prompted by a landlord's difficulty in renting 
apartments in that area because of the racial composition of School 
9. GX 144, 383; Tr. 2885-89, 3100-05 (Arcaro) ; Tr. 10,371
( Y o s t ) T h i s  proposal was not adopted by the district.

Although the Board's consistent refusal to implement

5'51



City-proposed attendance zone changes obviated their potential 
segregative impact on the schools, the evidence of such proposals 
is nevertheless illuminating insofar as the City is concerned. 
These proposals demonstrate the City's awareness of the inter­
relationship between residential housing choices and the racial 
imbalance of the schools, a correlation which we have discussed 
previously in our findings. SCHOOLS V.A supra. More
important, the efforts of various City officials to accomodate the 
segregative impact of this interrelationship is additional evidence 
of the City's segregative intent with respect to public schools as 
well as subsidized housing.

2. City Council Resolutions . • i .
City officials have also used the procedure of passing 

non-binding City Council resolutions to express their opinion 
regarding educational matters. Over the years, these resolutions 
have addressed a variety of school-related issues, such as the 
addition, site selection, construction, opening, closing, and 
redistricting of schools,the need to arrange bus- transportation 
for students in particular areas', and the timing of Board 
decisionmaking. E.g., GX 141, 266, 359, 360, 362, 369, 379, 389,
390, 391, 395, 398, 425, 974.

The impact which such resolutions have had on school
affairs has been relatively modest. The nature of the school 
district's response to City Council resolutions has depended on 
whether the resolution at issue is perceived to be the expression 
of serious and genuine concern regarding a particular educational

53^



matter or merely political "posturing" by the City Council or the 
resolution's sponsor. Tr. 1267 (Del Bello). A number of City
Council resolutions, such as ones expressing opposition to the 
closing of School 31 and reguesting the Task Force for Quality 
Education to delay the issuance of its report, were followed by 
Board actions consistent with the City Council's desires, GX 141; 
Tr. 1263-64 (Del Bello), and a 1969 resolution regarding the need 
for additional schools in Northwest and East Yonkers was responded 
to in some detail by Superintendent Mitchell. GX 398. In most 
cases, however. City Council resolutions have been given little or 
no serious consideration by the Board or have been specifically 
rejected. Tr. 1410 (Del Bello); Tr. 8947 (Curran); Tr. 10,952, 
11,032 (Jacobson). For example, a 1954 resolution requesting the 
Board to reconsider its decision to close the virtually all-black 
School 1 was unsuccessful in achieving its goal, and a 1971 
resolution requesting the Board to rescind salary increases given 
to top school administrators was expressly rejected by the Board. 
C-1400. Thus, while City Council resolutions are indicative of the 
City's interest in and attempts to influence school affairs, there 
is an absence of concrete proof that these resolutions were a 
consistently successful means by which the City exercised any 
measurable degree of control over the Board.

3. School 4
The interrelationship between the City and the Board, and 

its effect on housing and school segregation, is illustrated with 
unmistakable clarity by the treatment accorded School 4. School 4,

523



an elementary school on Trenchard Street in Southeast Yonkers, was 
one of seven schools closed by the Board in April 1976 as part of 
its fiscally motivated budget reductions. We have already 
discussed the City's actions with respect to the School 4 facility 
subsequent to its closing in 1976. See HOUSING V F 3 su£ra. In 
this section of our findings, we focus specifically on the 
circumstances surrounding the Board's retention of the School 4 
facility.

School 4 was one of seven schools which the Board closed 
in April 1976; Schools 3, 7, and 12 and Commerce Middle School in 
Southwest Yonkers, Schools 4 and 15 in East Yonkers, and School 24 
in Northwest Yonkers. State law provides that once a school 
facility is no longer- needed for educational purposes, the Board 
"shall notify the common council of such fact ... and such common 
council ... may then sell or dispose of such property in the manner 
in which other real property owned by the city may be sold or 
disposed of___" N.Y. Educ. Law § 2 5 5 6  (9) (McKinney 1981). Immedi­
ately after the Board's decision to close the schools in 1976, City 
officials began to consider alternative plans for utilizing the 
school facilities in contemplation of the Board's returning these
properties to the City. GX 1187.1, 1187.2.

As discussed previously in our findings, the 1976 school 
closings generated enormous community opposition, especially in 
neighborhoods previously served by Schools 4 and 15. During the 
summer of 1976, community members continued to voice their 
objections to the school closings and urged the Board to reconsider 
its decision to close the schools. P-I 58-71, 58-74. Mayor

5 2 ^



Martinelli was also actively involved in seeking to reopen Schools 
4 and 15; with respect to School 4, Martinelli recommended that 
the Board reopen the facility as a K-8 school. Tr. 7543-45 
(Martinelli) . These efforts to reopen Schools 4 and 15 were 
unsuccessful, and the 1976-77 school year commenced with students 
from the closed schools reassigned to other schools in the 
surrounding neighborhoods.

Community opposition to the closing of Schools 4 and 15, 
however, did not subside. This opposition was expressed in a 
variety of forms: personal harassment of individual Board members; 
the creation of an alternative school in the School 15 community; 
the Mayor's commissioning of a traffic engineer to study the 
reassignment of former School 4 and 15 students; the institution 
of legal proceedings in New York State courts; and repeated 
expressions of opposition at Board meetings. See SCHOOLS IV.A.3.b 
supra. At a September 1976 Board meeting attended by Mayor 
Martinelli, a number of speakers, including the Mayor, urged the 
Board to reject a resolution to return all seven schools to the 
City. As a result of these "repeated requests," the Board voted to
table the resolution. GX 187.

The Board's subsequent disposition of most of the closed
schools was relatively uneventful. School 7 and Commerce Middle 
School were returned to the City later in 1976. Tr. 12,341, 12,348 
(Martinelli) . School 7 was sold in 1978 to a commercial buyer 
originally interested in acquiring the School 4 property, and 
Commerce was used as the City's Community Center. School 24 was 
retained by the Board for its own use in accordance with the 1976

5 2 ?



School Closing plan adopted by the Board, and was subsequently 
converted into a warehouse facility for the school district.

Schools 3 and 12 were not immediately returned to the 
City. At the time of its closing. School 3 was in poor physical 
condition and in need of extensive rehabilitation. GX 126, at 6. 
In 1977, City officials entered into discussions with Eugene 
Smilovic concerning the possibility of establishing a religious 
school in the School 3 facility. GX 1170.2; P—I 199—7 to —9, 119— 
14 to -17. After this proposal failed to materialize, the school 
facility was used by the Spanish Community Progress Foundation on a 
rent-free basis. Sometime in 1980, the Board returned the school 
to the City. Tr. 12,338-39 (Martinelli) ^ The facility was sold 
in 1981 to a developer interested in establishing a senior citizen 
housing project (The Hamilton Apartments).

School 12, a small elementary school facility located in 
a physically deteriorating commercial neighborhood in Southwest 
Yonkers, remained unused for several years after its closing in 
1976. In a July 1977 application to the New York State 
Preservation League, City Manager Vincent Castaldo recommended that 
the facility be used for housing as well as commercial use, or as a 
community services facility. P-I 77-9. However, no proposals for 
commercial use of School 12 were made to the City. The school was 
eventually leased by the Yonkers Community Action Program ("YCAP") 
and was sold to YCAP in September 1982 for a nominal consideration. 
C-1623; Tr. 12,346 (Martinelli). Although it is not clear when 
School 12 was actually returned to the City, the YCAP had 
possessory rights to the facility for some period prior to its

5'2G.



sale. Tr. 12,346. In any event, the circumstances surrounding the 
return of School 12 to the City were neither unusual nor 
controversial.

School 15 was considered for a number of potential re­
uses prior to the Board's decision to return the facility to the 
City in June 1982. In 1976, while City officials and community 
members engaged in vigorous efforts to reopen School 15, Planning 
Director Pistone suggested the possibility of converting the 
facility into a nursing home in the event it was returned to the 
City. GX 1187.2. This use was also proposed in the City's 1977 
application to the New York State Preservation League. P-I 77-9. 
By 1979, City officials were considering a proposal to convert the 
school facility into residential condominiums. P-I 199-22, 199-23. 
In 1980, Superintendent Raymond unsuccessfully sought funds to 
rehabilitate the school in order' to establish teacher training and 
enrichment programs there. GX 279a; P-I 45-173; Tr. 11,814-15 
(O'Keefe). School 15 was returned to the City in 1982 and a 
citizen's committee was established by the City Council to 
recommend a use for the School 15 site. In late 1983 and mid-1984, 
the City Council approved the committee's preliminary reports 
recommending that single-family homes be built on the School 15 
site. Tr. 7796-97 (Longo).

The fate of School 4, on the other hand, was the focus of 
considerably greater attention. Although community efforts to 
reopen the school eventually subsided during the 1977-78 school 
year, the Board did not return the school to the City for 
disposition. Despite the City's precarious fiscal condition and 
the drastic budgetary cutbacks implemented by the Board in 1976,



the Board retained the vacant School 4 facility, incurring expenses 
of approximately $40,000 to $50,000 a year to maintain the facility 
in a non-operative state. Tr. 7542-43 (Martinelli). By the late 
1970's the Board had apparently abandoned any serious plans to 
either reopen the school or use the facility for other educational 
purposes. Instead, by 1979 School 4 began to be mentioned as a 
potential site for Section 8 subsidized housing units, while the 
Board continued to hold onto the property while making no
educational use of the School 4 facility.

•phe City also exhibited little interest in either 
disposing of the facility or implementing some productive use. 
Subsequent to its closing in 1976, School. 4 was recommended or 
otherwise under 'consideration for-a a^'variety «of residential and 
commercial uses. P-I 199-6, 199-18^^ Such proposals, however, were 
generally resisted because of the possibility that City officials 
and community members would eventually persuade the Board to 
reverse its decision to close the school. Tr. 7517 (Martinelli). 
In 1978, VSP Co., a video and software'production center, expressed 
an interest in acqurring-«the School 4-facility. The City dissuaded 
VSP from acquiring School'4 and instead 'so-ld the- School 7 facility 
to VSP for a considerabiy'lower consideration.

During 1979, by which time the efforts to reopen School 4 
had subsided. School 4 began to be mentioned as a potential site 
for Section 8 subsidized housing. GX 1118.41, 1118.117; Tr. 7953- 
57 (Cipriani). In 1980, School 4 was included as one of fourteen 
possible housing sites submitted by the City to HUD, and was one of 
three sites which HUD subsequently found to be suitable for the

5 ^ ^



development of subsidized housing. P-I 199-37, 199-40. However, 
as discussed previously in our findings, the City's actions with 
respect to the facility were clearly inconsistent both with any 
serious limitations on its ability to utilize the School 4 facility 
as it deemed appropriate and with any sincere intent to secure its 
return for purposes of developing subsidized housing at that site. 
See HOUSING supra. As late as May 1981, City Manager Eugene 
Fox notified HUD that no schedule had been set for the return of 
School 4 to the City. GX 1140.29. In August 1981, Fox notified HUD 
that the City was still "continu[ing] to work towards effecting the 
transfer of Public School^4 from the Board in order to allow for 
its future use as subsidized housing. GX 1140.43; Tr. 8577-80 
(Schi^iman) . As of “the end of the yearhowever, the Board 
continued to retain the school in what w^s almost a six year period
of inaci:ivity. Tr. 7789 (Longo) .

In early 1982, Acting City Manager Theodore Garofalo was 
notified of a developer's interest in converting the School 4 
facility into condominiums. GX 1170.7-1170.8. On March 16, the 
developer expressed similar interest to his successor, Sal 
Prezioso. GX 1170.9“̂. Two days later', the Board and Superintendent 
Raymond were notified by Prezioso that a developer was interested 
in purchasing School 4 and converting it into luxury—type 
housing". GX 1170.10. Within days. Superintendent Raymond 
informed Prezioso that the Board was reviewing the matter and that 
she had strongly recommended that the Board take some action with 
respect to the "unused" School 4 and 15 facilities. GX 1170.11. 
Three months later, the Board, now indicating that it had no plans

5 ^ ^



to reopen the school or use the facility for any other educational 
function, returned the school to the City. P-I 199-52. 
Subsequently, the City proceeded toward the sale of the property to 
a private residential developer. An all-white citizen's committee 
from the School 4 area was appointed by Councilmember Cipriani to 
evaluate re-use proposals; the committee, unguided by City 
planning officials or criteria, met with three developers and 
recommended Morelite Construction Company, a condominium builder; 
and the City Council, without prior public bidding and after an 
acrimonious public hearing at which the community expressed strong 
approval of the condominium proposal and strong opposition to the 
possibility of developing subsidized housing at. the site, voted to 
sell School 4'.to Morelitev^ See HOUSING y.P;.3 supra.

The City's involvement in the treatment of School 4 is
illustrative of the subtle manner in which the City, assisted by 
the inaction of the Board, succeeded in its perpetuation of racial 
segregation in Yonkers. While there is little evidence of overt 
attempts to direct Board conduct through express communication or 
resolution discoueaging the return of School 4 to the City, the 
simultaneous actions of the City and..Board speak for themselves. 
Unlike its treatment- of the other schools closed in 1976, which 
were either returned that year to the City, put to other 
educational use, or were initially unable to attract interested 
developers or buyers. School 4 remained in limbo to the clear 
financial detriment of the City, while the City engaged in a series 
of acts designed to impede the use of School 4 as a site for 
subsidized housing. Like the mayoral appointment process or the

5 3 0



city Council's budgetary control over the school district, the 
City's conduct in this instance is not credibly justifiable simply 
by reference to state law. Instead, the Board’s retention of 
School 4 is illustrative primarily of the manner in which the City, 
by its acts and omissions, utilized its relationship with the Board 
to successfully avoid the development of subsidized housing in East 
Yonkers. The sequence of events surrounding the City's treatment 
of the inoperative School 4 facility constitutes persuasive 
evidence of the City's discriminatory intent and its perpetuation 
of residential, and consequently school, segregation in Yonkers.

• ;ad iciu'li c: - .ci [ i. i. C

b 3 l



VI. CONCLUSIONS OF LAW
A. Jurisdiction

In the school-related portion of this case, the United 
States seeks to enforce the provisions of Title IV, Title VI and 
regulations thereunder, the fourteenth amendment, and contractual 
assurances made by the Board in consideration of its continuing 
receipt of federal financial assistance. Complaint K 1. 
Jurisdiction is alleged to be proper under 28 U.S.C. S 1345, 42 
U.S.C. S 2000C-6, and 42 U.S.C. S 2000d-l. 1 2. The NAACP 
alleges violations of Title VI, 42 U.S.C. S 1981 et seq., the 
thirteenth and fourteenth amendments, and New York State law.'^^ 
Complaint 1 20; p.ll. Jurisdiction is alleged to be proper under 
28 U.S.C. -l?43(3r and (♦). Id. f 3. O '-

1. The Board of Education
The Board argues that the United States lacks standing 

and that this Court lacks jurisdiction over the United States' 
claims under either (1) Title- IV, because the NAACP (the private 
complaining partyp<^ was able to initiate and maintain legal 
proceedings on its owiv behalf, or (2) Title VI, because the United 
States Department of Education did not attempt -to secure voluntary 
compliance from the Yonkers School District prior to the initiation 
of this lawsuit, in accordance with applicable regulations. These 
contentions have been rejected in a previous Opinion of this Court. 
See United States v. Yonkers Board of Education, 80 Civ. 6761, slip 
op. at 1-2 (S.D.N.Y. Mar. 12, 1982). Accordingly, this Court has 
jursidlction pursuant to the aforementioned statutes over the

53a



claims of the United States alleging unlawful school segregation by 
the Board. The Court also has jurisdiction, pursuant to 28 U.S.C. 
S 1343(3) and (4), over the NAACP's claims of unlawful school 
segregation brought pursuant to S 1983 and Title VI.

2. The City
The City argues that the claims of the United States 

alleging unlawful school segregation, by the City must be dismissed. 
Specifically, the City contends that the four enumerated bases for 
the United States* claim of school segregation —  Title IV, Title 
VI, the fourteenth amendment, and contractual assurances by the 
Board —  cannot-properly serve as a basis for maintaining the 
school-related'-portion ofi this caae> againsir ithe Citŷ ^

The United States concedes that its Title VI claim is 
asserted solely against the Board, and not the City. See United 
States V. Yonkers Board of Education, 518 P.Supp. 191, 201
(S.D.N.Y. 1981). In addition, the United States does not contend 
that its contractual claim is asserted against the City.

As for the remainingigrounds, the City contends that the 
United States lacks standing to assert Bivens-type claims directly 
under the fourteentlt amendment, see id. at 201, and that no statute 
authorizes the United States to assert alleged violations of the 
fourteenth amendment. Therefore, the City argues, this Court lacks 
subject matter jurisdiction over the government's constitutional 
claim.

The City also argues that Title IV authorizes the 
Attorney General to initiate proceedings only against a "school

5 ^ 3



board" and not against an entity such as the City of Yonkers, and 
that the government's allegations of unlawful school segregation by 
the City are therefore not cognizable under Title IV. According 
to the City, its lack of control over Board conduct and its lack of 
responsibility for the operation of the Yonkers public schools 
preclude the United States from asserting a claim of unlawful 
school segregation against the City pursuant to Title IV.

As for the constitutional claim, several circuit courts 
have held that the United States lacks standing under the 
Constitution to assert the constitutional claims of others. See 
United States v. Philadelphia, 644 P.2d 187 (3d Cir. 1980) 
(challenging city police department practices); United States v. 
Mattson, 600 P.2d 1295 (9th Cir. 1979) (challenging conditions in 
state mental hospital); United States v. School District of 
Ferndale, 577 ,P.2d 1339,_ 1345-46 _ (6th Cir. 1978) (school 
desegregation suit brought under Equal Educational Opportunities 
Act); United States v. Solomon, 563 F.2d 1121 (4th Cir. 1977)

l 9 u(challenging conditions in state mental hospital) — ' see also 
Estelle V. Justicer ,42;(5 U.S. 925 (1976) (Rehnquist, J., joined by 
Burger,C.J., and Powell,J., dissenting from (̂ n̂ial of petition for 
writ of certiorari) (suggesting, in suit challenging state prison 
conditions^ that United States lacks inherent standing to assert 
constitutional claims of others). Cf. Halderman v. Pennhurst 
State School and Hospital, 612 P.2d 84, 90-92 (3d Cir. 1979) (en 
banc) (allowing United States to intervene in already-commenced S 
1983 suit but not deciding issue of governmental standing to 
initiate suit directly under Constitution), rev'd on other grounds.

5 3 4



451 U.S. 1 (1981). While the first three decisions cited above 
relied primarily on the absence of congressional authorization of 
the type of lawsuit initiated by the United States, the existence 
of Title IV does not necessarily compel the conclusion that the 
United States has standing to institute school desegregation cases 
directly under the Constitution as well. Indeed, the Ferndale 
decision is astute in its recognition that to permit the government 
to assert constitutional claims in school desegregation cases by 
suing directly under the Constitution would allow it to circumvent 
Title IVs procedural prerequisites to the assertion of equal 
protection violations in school desegregation cases. 577 F.2d at 
1345-46. Accordingly, the existence of statutory authorization to 
initiate, school desegregation cases & would appear to reinforce, 
rather than undermine, the conclusion that the United States lacks 
standing, directly under the Constitution., to assert the 
constitutional claims of others.

It is equally clear, however, that Title IV authorizes 
the United States...tp enforce the equal protection guarantee of the 
fourteenth amendment. See Brown v. Califaao, 627 F.2d 1221, 1232 
n.67 (D.C.Cir. 1980) ("[T]he Department of Justice has standing to 
enforce the guarantees of equal protection, as embodied in Title 
IV"); United States v. School District of Ferndale, supra , 577
F.2d at 1346 n.l2 ("Of course, there is nothing to prevent the 
Attorney General from asserting violations of the EEOA and the 
fourteenth amendment in the same complaint where relief is sought 
under both the EEOA and Title IV.") (emphasis deleted). This 
conclusion is supported by the language of the statute itself, see



42 U.S.C. S 2000c-6(a) ("Whenever the Attorney General receives a 
complaint ... that ... children ... are being deprived by a school 
board of the equal protection of the laws, ... the Attorney General 
is authorized ... to institute for or in the name of the United 
States a civil action..."), and has been implicitly recognized in 
prior school desegregation suits brought by the United States. See 
e.q., United States v. Texas Education Agency, 467 P.2d 848, 853 
(5th Cir. 1972) (en banc) (suit brought by United States under 
Title IV; court found equal protection violation); United States 
V. School District 151 of Cook County, 404 P.2d 1125, 1127-28 (7th 
Cir. 1968) (same), cert, denied, 402 U.S. 943 (1971); see also 
United States v. Massachusetts Maritime Academy, 762 P.2d 142, 148 
(1st Cir. 1985). Thus',-’the United' States haa^standing to enforce 
the equal protection clause of the- fourteenth amendment by virtue 
of the express statutory^ authorization provided by Title IV.

The remaining novel issue, then, is whether Title IV 
authorizes a suit by the United States against a municipal entity 
such as the City of Y o n k e r s I n  this regard, we note that the 
language- of̂  the statute is not^-as limited’as the City suggests. 
While referring to the government's'-'receipt of a complaint that a 
"school board* is denying- students the equal protection of the laws 
and the government's obligation to provide pre-litigation notice to 
the appropriate "school board" of such a complaint, the statute 
also authorizes the Attorney General to institute a civil action 
"against such parties and for such relief as may be appropriate." 
42 U.S.C. S 2000c-6(a). Thus, while Title IV enumerates procedural 
prerequisites to government-initiated school desegregation suits.

52>g



nothing in the statute expressly precludes the United States from 
initiating such suits against parties other than school boards so 
long as these prerequisites have been satisfied. In addition, the 
statute permits the government to implead "such additional parties 
as are or become necessary to the grant of ̂ effective relief 
hereunder," thus permitting the City to be properly included as a 
party to any remedial proceedings insofar as both the United States 
and the NAACP are concerned, Cf. Plaquemines Parish School Board 
V. United States, 415 F.2d 817 (5th Cir. 1969) (permitting addition 
of Commission Council to school desegregation case pursuant to 
Title IV in order* to prevent council £ro» transferring school 
property). Finallyc-, it is cleac;::that thiaCourt^has lurisdiction 
over the NAACP'a<constitutional claim, brought pursuant to S 1983, 
of unlawful school segregation by the City under 28 U.S.C. S 1343 
and thus the City is in any event a proper party to the liability 
phase of this lawsuit. See Arthur v, Nyquist, supra. Since 
allegations of intentional school segregation against parties other 
than school boards may be: made by private litigants, we see little 
policy justificatioit for more narrowly circwnscribing the scope of 
potential parties->who may be' included as defendants in school 
desegregation cases initiated by the government under Title IV, 
particularly since the statute expressly contemplates the 
impleading of additional parties by the government for purposes of 
implementing remedial measures.

The Sixth Circuit's interpretation of a similar provision 
contained in the Equal Educational Opportunities Act of 1974, 20 
U.S.C. S 1701 ^  seq. ("EEOA"), supports our conclusion that the

5 3 1



City may be included as a defendant in the school desegregation 
portion of this case pursuant to Title IV. In United States v. 
School District of Ferndale  ̂ supra  ̂ the Sixth Circuit upheld the 
Attorney General's authority to include state officials in a school 
desegregation action brought pursuant to the EEOA. That statute, 
like Title IV, authorizes the Attorney General to institute 
enforcement proceedings "against such parties, and for such relief, 
as may be appropriate." In Ferndale, the district court held that 
the state defendants (the State of Michigan, the Governor, the 
Michigan State Board of Education, and the Michigan Superintendent 
of Public Instruction) were not subject to suit under the EEOA 
because they were not the "educational agency” which had allegedly 
denied individuals theiight to equal educational opportunity. The 
court noted that the EEOA, unlike Title IV, does not authorize the 
Attorney General tOt implead.additional parties for purposes of 
granting relief for the statutory violations/ of educational 
agencies. 400 F.Supp. at 1138-39. The Sixth Circuit reversed, 
finding that the < indirect assistance^ provided by the state 
defendants through their^ financial > support of the local school 
district and their potential:involvement/in/future remedial phases 
rendered them "appropriate* parties to the litigation. 577 F.2d at 
1347-48. While the legal relationship between the state and local 
defendants in Ferndale and the City and school officials in Yonkers 
is not precisely analogous, the City's budgetary and other indirect 
involvement in school affairs and the more expansive provisions of 
Title IV provide an appropriate basis for permitting the government 
to include the City as a party to its Title IV enforcement action.

53^



We recognize that federalism and separation of powers 
principles have, in other circumstances, been recognized as 
relevant in determining the government's power to challenge the 
allegedly unconstitutional conduct of local governmental entities. 
See United States v. City of Philadelphia, supra, 644 F.2d at 199- 
203; United States v. Mattson, supra, 600 P.2d at 1300-01; United 
States V. Solomon, supra, 563 F.2d at 1128-29. The separation of 
powers concern of these decisions, however, was articulated as a 
reason for refusing to grant the United States standing to sue 
directly under the Constitution to challenge the allegedly unlawful 
operation of a state governmental entity. '̂ As noted previously, 
this holding was based primerrily on the- absence of any 
congressional authorization for the type of lawsuit initiated by 
the government, a circumstance which is not present in the instant 
case. The separation of powers concern of these decisions is thus 
inapposite in the circumstances of the instant case.

As for federalism concerns, we are unable to find any 
authority suggesting that the principle of federalism may serve as 
a legitimate impeddaient tOLthe initiation of school desegregation 
suits against any and all parties* who have contributed to the 
allegedly unlawful condition with the requisite intent. Indeed, we 
fail to see how the initiation of a school desegregation suit 
against a municipality is any more intrusive as a matter of 
federal-state relations than the initiation of such a suit against 
a school board, a suit which has never been considered to be 
inconsistent with our federal system of government. In this 
connection, we reject the City's reliance on the Board's

53‘i



responsibility under state law for the operation of the Yonkers 
public schools as a reason for precluding the government from 
proceeding against the City for the City's allegedly unlawful role 
in creating or maintaining the racial segregation of these schools. 
In light of the allegations of City involvement in school affairs 
and intentional housing discrimination, the City's separate legal 
status .under state law cannot properly serve as a limit on the 
scope of congressionally granted governmental authority under Title 
IV to enforce federal constitutional guarantees against state and 
local governmental authorities whose acts and omissions create or 
substantially"contribute to school segregation.

The Supreme Court*S' recognition of the importance of 
federalism principles in the development*of federal constitutional 
jurisprudence is not inconsistent with this conclusion. Three 
decisions in particular ̂’have become particularly noteworthy in 
their recognition of federalism principles as a limit on the 
authority of federal courts to intervene in the operations of state 
and local government entities. See National League of Cities v. 
Usery,̂ 426 U.S. 833 (1976); Rizzo v̂ . Goode, 423 U.S.̂  362 (1976); 
Younger v. Harris,** 401 U.S. 37 (1971). None of these decisions, 
however, suggest that municipal liability in the circumstances of 
the instant case would violate these federalism principles.

The Younger doctrine, setting limits on the extent to 
which federal courts may interfere with ongoing state judicial 
proceedings, is premised on the legitimate interest of the states 
in enforcing its own laws. 401 U.S. at 44-45, 51-52. Rizzo 
extended this principle to the executive branch of state and local

540



governments, holding that a federal court injunction ordering a 
local police department to implement a variety of prophylactic 
procedures designed to minimize misconduct by its employees 
violated federalism principles by unduly interfering in the 
internal affairs and operations of a police department whose 
policies and practices were not shown to be unlawfully 
discriminatory. 423 U.S. at 377-80. Neither case suggests that a 
local governmental entity whose policies and practices are shown to 
be intentionally discriminatory and result in the racial 
segregation of its housing and schools may not be held liable for 
such conduct in federal court, with appropriate remedies 
commensurate with the constitutional or statutory violation. 
Unlike, a atatê j,̂ ,̂ interest in.^enforcing state law or a police 
department*3 .̂ interest in developing its own operational procedures 
free of intensive federal^supervision,— ^ the City's alleged 
violation of Title VIII, along with its allegedly segregative 
conduct affecting Yonkers public schools, cannot lay similar claim 
to federal judicial deference based on the desire to avoid 
interference yith the legitimate operations of state and. local 
governmental entitij$f^ The government in this case does not seek 
to disrupt or obtain federal judicial supervision over the workings 
of a judicial, legislative or executive agency which has engaged in 
the legitimate and lawful exercise of its state authority; instead, 
it seeks to hold a municipality liable for its implementation of 
discriminatory policies and practices in violation of federal 
constitutional and statutory rights. As noted previously, the 
government's claims against the City are difficult to distinguish.

541



as a matter of federalism, from its claims against the Board; we 
find it inappropriate to create federalism-based obstacles to the 
government's initiation of either type of lawsuit.

As for Usery, the Supreme Court has recently overruled 
the Usery decision. See Garcia v. San Antonio Metropolitan Transit 
Authority, 105 S.Ct. 1005 (1985). We also note that the Usery 
decision, which held that certain areas of state governmental 
activity are constitutionally immune from federal regulatory power, 
in no way contemplated similar protection from the federal 
government's authority to enforce the substantive provisions of the 
fourteenth amendment. See Hunter v. Underwood, 105 S.Ct. 1916, 
1923 (1985); Monell v..Department of Social Services, 436 U.S. 
658, 690 n.54 (1978); . Fitzpatrick v. Bitzer. 427 U.S. 445, 453 n.9 
(1976). ,

In conclusion, we hold that the United Stjates has the au­
thority under Title IV to assert its claim of unlawful school 
segregation by the City of Yonkers, and that this Court has juris­
diction over the government's claim of unlawful school segregation 
by the City pursuapt^,t,a,28 U.S.C. $,1345 and 42 U.S.C. $. 2000c-6. 
This Court also has lujrisdiction over the NAACP's claim of unlawful 
school segregatioa by the City pursuant to 28 U.S.C. $ 1343(3) and 
(4) .

B. Liability
As noted at the outset of this Opinion, this case is not 

simply another in a long line of school desegregation cases. Few 
cases have involved tangible inequalities in educational

5 4 ^



opportunity, as we have discussed this term, which have so closely 
paralleled and become intimately bound up with racial imbalance. 
Few cases have arisen in a political setting in which school board 
policy was as subject to municipal influence as in Yonkers. No 
case has ever previously been brought in which a court was asked to 
determine the liability of state actors for both housing and school 
segregation. And no case has ever considered the legal 
ramifications of the confluence of these unique and important 
considerations. We must therefore examine closely each of these 
considerations, together with the other acts and omissions of the 
school board, in order to determine whether legal responsibility 
for the racial segregation of-Yonkers public schools may properly 
be placed with the Board or the^City,'^r both. ^

1. The Board of Education
a. Independent Conduct of School Authorities
The record has demonstrated an absence of any consistent 

pattern of segregative school openings or closings or racial 
gerrymandering ofattendance nlines which have had systemwide 
segregative impact. Individoel, deliberately segregative school 
opening, closing,-<sand attendance zone decisions, however, have 
occurred. The consistent impact of these decisions —  the setting 
and adherence to School I's original attendance zone boundaries 
(1938 to 1954), the events leading up to attendance zone boundary 
changes between Schools 6 and 25 (1948), the pattern of segregative 
changes to the attendance zone boundary separating Schools 16 and 
25 (1953-68), the reassignment of minority Runyon Heights students



from Emerson to Burroughs (1973), the opening of Commerce Middle 
School (1973) —  was to avoid the assignment either of Northwest 
Yonkers white students to disproportionately minority schools or of 
minority students to disproportionately white Northwest Yonkers 
schools. While most of these decisions were followed by subsequent 
developments with respect to the particular school or group of 
students which were desegregative in varying degrees —  the closing 
of School 1 (1954), the redrawing of the School 6/25 attendance 
zone boundary (1948), the reassignment of Runyon Heights students 
from Burroughs to Whitman (1978), the closing of Commerce Middle 
School (1976) —  these decisions nevertheless have reinforced the 
racial imbalance between Southwest and Northwest Yonkers schools 
and thus contributed to the racial identifiability of these areas.

The segregated condition of many Southwest Yonkers 
schools (elementary schools in particular) cannot be similarly 
traced to affirmative, intentionally segregative changes in 
attendance zones or student assignment decisions. The Board, 
however, has not completely eschewed segregative decisionmaking inr
other areas of school operations affecting Yonkers public schools-. 
In four areas, the Board has engaged in unlawfully discriminatory 
acts and omissions^ all of which have had systemwide impact and 
have served to perpetuate racial segregation in public schools and 
discriminatory attitudes in the Yonkers community. Thus, while the 
Board's perpetuation of school segregation in Yonkers was not overt 
or explicitly proclaimed, the Board has affirmatively contibuted to 
an appreciable degree to this condition.

One area in which the Board has exhibited segregative

5 4 4



intent with current segregative impact is in the assignment of 
faculty and administrative staff. The intentional segregation of 
school faculty is an important factor in evaluating whether a 
school board has acted with segregative intent in the operation of 
its school system as a whole. See Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S. 1, 18 (1971); Diaz v. San Jose Unified 
School District, suprar 733 F.2d at 670; Reed v. Rhodes, supra  ̂
607 F.2d at 725; Oliver v. Michigan State Board of Education, 
suprar 508 F";2d at 185; Arthur v. Nyquistr supra> 415 F.Supp. at 
945. While such segregation does not establish a prima facie case 
of intentional segregation of students, see Columbus Board of 
Education v. Penick, suprat"443 U.S. at 536 n.9, it is nevertheless 
a significant indicatioiK’of school board intent in general. In 
additioRr whil« the segregation" of faculty is not necessarily a 
substantial or' significantf causal factor in the perpetuation or 
exacerbation of school segregation, see Diaz v. San Jose Unified 
School District, 518 F.Supp. 622, 641 (N.D.Cal. 1981), rev'd on 
other grounds, 733 F.2d 660, 670 (9th Cir. 1984) (en banc), cert, 
denied, 105 S.Ct.’2140 ( 1 9 8 5 ) Alexander V. Youngstown Board of 
Education, 454 F.Supp.' 9857 1072 (N.D.Ohio 1978), aff*d, 675 F.2d 
787 (6th Cit. 1982) ?""" Higgins v. Board of Education of Grand 
Rapids, 395 F.Supp. 444, 478-79 (W.D.Mich. 1973), aff*d, 508 F.2d 
779 (6th Cir. 1974), such segregation frequently has been found to 
be a significant contributor to school segregation. See Reed v. 
Rhodes, supra, 607 F.2d at 725; NAACP v. Lansing Board of 
Education, supra, 559 F.2d at 1052; Morgan v. Kerrigan, supra, 509 
F.2d at 597-98; Armstrong v. O’Connell, supra, 463 F.Supp. at

546 .



1306-07.
The Board's staff assignment practices are significant 

both as a matter of intent and segregative impact. The assignment 
of disproportionate numbers of minority staff to disproportionately 
minority schools in Southwest Yonkers served as a clear indication 
that racial segregation was acceptable even where residential 
segregation and transportation concerns did not impede the 
implementation of race-neutral assignment policies. While the 
mathematical extent of staff segregation in Yonkers public schools 
was not overwhelming, the Boardss assignment policies had an 
appreciable impact on the schools, with their most segregative 
impact occurring^ during the period of most * intensive subsidized 
housing develo^nnent in Southwest Yonkers. Cf. Diaz v. San Jose 
Unified School District, supra, 518 F.Supp. at 641 (Insignificant 
segregative impact found where froulty segregation exceeded 15% 
minority staff in any one school in only two instances) . The 
segregation of staff not only impacted upon Southwest and East 
Yonkers schools in a racially segregative fashion, but also was 
exacerbated by the relative inexperience of̂  minority staff members 
and by the assignment of minority Special Education teachers to 
predominantly white schools. Cf. Morgan v. Kerrigan, supra, 509 
P.2d at 596; Berry v. Benton Harbor, supra, 442 F.Supp. at 1301- 
02. The district's belated and limited efforts to rectify this 
condition did not eliminate the segregative impact of its previous 
assignment practices. Like the City's confinement of subsidized 
housing to Southwest Yonkers, the Board's staff assignment 
practices are most significant by virtue of the confirmatory impact



which they had on racial segregation in Yonkers public schools as a 
whole.

The Board's vocational education program has also been 
affected by the discriminatory practices over the years. The 
steering of minority students into such programs^ followed by the 
continued adherence to knowingly segregative screening policies, 
both operated to deprive minorities (particularly blacks) of equal 
educational opportunities on the secondary school level. As with 
staff assignments, school < authorities were for many years 
relatively unresponsive to the acknowledged disproportion in 
minority enrollment in vocational programs and did relatively 
little to^>-overcome the previously created disincentives for 
enrolling in these programs. A» a consequencer’minority students 
were disproportionately affected by inadequacies in the secondary 
school curriculum at Gorton and Yonkers High Schools, a condition 
which also existed for several years.

The district's operation of its Special Education 
program, while not "segregative” in and of itself, was nevertheless 
marked > by discriminatory treatment of minority students which 
served to reinforce* community^, opposition to >desegregation. 
Minority students not only were assigned in disproportionate 
numbers to such classes but also were accorded treatment entirely 
inconsistent with the Board's general neighborhood school policy. 
While the district made concerted efforts to rectify discriminatory 
aspects of the program, the impact of its prior practices, along 
with other unremedied practices, continued up to the filing of this 
lawsuit. The operation of the Special Education program reinforced

54-n



discriminatory community attitudes toward minorities in a manner 
consistent with the City's implicit recognition of and 
responsiveness to similar attitudes in its development of 
subsidized housing policies. Cf. United States v. Texas Education 
Agencyy supra> 600 P.2d at 526-27 (foreseeable and unforseen 
segregative impact of intentionally discriminatory act constitutes 
part of constitutional violation); Arthur v. Nyquist, su£ra, 415 
F.Supp. at 929 (discussing significance of school board conduct 
which contributes to discriminatory attitudes of white community 
members).

The Board's student assignment practices on the secondary 
school level were also marked in some instances by segregative 
intent^ ' While the Boa<d closed' Commerce^ in 19*76‘ and reassigned 
some of its minority students to Emersonr this action was taken 
only after the Board*s deliberately segregative opening of Commerce 
three years earlier. In addition, the district maintained the 
Longfellow and Fermi facilites in an underutilized and racially 
imbalanced condition despite the availability of additional space 
at physically superiorH 'predominantly white East Yonkers schools 
and the proximity of whltd East'Yonkers middle school students to 
these two Southwest Yonkers schools. The frequently mentioned 
possibility of effectuating desegregation among the district's high 
schools was acted upon only in 1973 (the Homefield redistricting) 
despite the acknowledged limited relevance of neighborhood school 
policy considerations in determining secondary school student 
assignments.

The Board's rejection of desegregative school

54« .



reorganization proposals is also relevant to the liability 
determination. Under similar circumstances, The Supreme Court has 
held that

The question of whether a rescission of previ­
ous board action is in and of itself a violat­
ion of appellants' constitutional rights is 
inextricably bound up with the question of 
whether the Board was under a constitutional 
duty to take the action which it initially 
took.... If the Board was not under such a 
duty, then the rescission of the initial action 
in and of itself cannot be a constitutional vi­
olation. If the Board was under such a duty, 
then the rescission becomes a part of the cumu­
lative violation, and it is not necessary to 
ascertain whether the rescission ipso facto is an independent violation of the Constitution.

Dayton Board of Education v, Brinkman, 433 U.S. 406, 414 (1977)
(quoting Brinkman v. Gilliqan, 503 F.2d 684, 697 (6th Cir.
1974)).-^ Other courts have similarly noted that the rejection of
integrative proposals, while not unlawful by itself, is evidence of
segregative intent which, along with other evidence of intent, can
form the basis for a finding of unlawful school segregation.
Armstrong v. Brennan, supra, 539 F.2d at 636 ("In finding
discriminatory intent, the District Court could properly consider,
together with other evidence, defendants' refusal to adopt
integration proposals [citations omitted], even though that refusal
alone would not prove the requisite intent."), vacated on other
grounds, 433 U.S. 672 (1977)— ;̂ Oliver v. Michigan State Board of
Education, supra, 508 F.2d at 186 (revocation of desegregation plan
"in light of the prior cumulative constitutional violation by the
school authorities, is further evidence of the Board's racially
segregative purpose").

Consistent with the above principles, the rejection of or

5 ^



failure to implement school desegregation plans has been the basis 
for a finding of unlawful segregation in two general contexts. 
First, the failure to implement school desegregation plans, 
particularly when in response to racially motivated community 
opposition, has been deemed unlawful where the state has previously 
been found to have operated a dual school system. See Swann v. 
Charlotte-Mecklenburq Board of Education, supra, 402 U.S. at 13; 
Green v. County School Board, 391 U.S. 430, 437-38 (1968); Cooper 
V. Aaron,, 358 U.S. 1, 15-16 (1958). In such cases, a school board 
is under a legal obligation to eliminate the segregative effects of 
prior ^  jure segregation, and courts have held that community 
resis.l̂ ance to the performance of such an obligation cannot justify 
a failure to remedy school segregation. See, e.g., United States 
V. Scotland Neck City Board of Education, 407 U.S. 484, 491 (1972); 
Monroe v. Board of Commissioners of Jackson, 391 U.S. 450, 459 
(1968).

Second, the refusal to implement desegregation plans has 
been held to constitute a basis for a finding of unlawful school 
segregation wheter thia, refusal has been combined with other 
affirmative acts of segregation. In the principal cases in which 
such findings have been made, the respective school boards were 
also found to have engaged in a number of other acts involving 
student assignment policies which were clearly consistent, in terms 
of segregative intent, with the refusal to desegregate. See Arthur 
V. Nyquist, supra, 573 F.2d at 144-45 (redistricting of high 
school, language transfer policy, districting of junior high 
school, use of optional attendance zone areas, discriminatory

55^ ■



vocational school admission policy, and racially discriminatory 
staff recruiting and assignment); Armstrong v. Brennan, supra, 539 
F.2d at 629-32 (pattern of segregative boundary changes, intact 
busing, open transfer policy, and faculty segregation); Morgan v. 
Kerrigan, supra, 509 F.2d at 586-98 (segregative reassignments and 
use of portable classrooms in response to overcrowding, use of 
segregative feeder patterns and transfer options, open enrollment 
and controlled transfer policies, discrimination in staff 
assignment and promotion^^and segregative redistricting); Oliver 
V. Michigan State Board of Education, supra, 508 F.2d at 185-86 
(segregative attendance zone policy, school construction and siting 
policy, staff assignment policy, conscious^ neg^lect of opportunities 
to decrease segregation, lack of minority staff)? United States v. 
School District 151, supra, 404 P.2d at 131-32 (segregative 
transfer policy, boundary changes,' busing policy, and faculty 
assignments, affecting three of district's six schools).

In our view, the Yonkers Board of Education's refusal to 
adopt desegregative school reorganization proposals does not fall 
precisely within' elther"“ceHi^9ory of cases: ' The Board has not 
failed to fulfill an obligation to dismantle a dual school system; 
nor has it engaged in what, standing alone, could fairly be 
characterized as a significant number of affirmative acts of 
intentional segregation in the area of student assignments, 
particularly on the elementary school level. This fact, however, 
does not end our inquiry into the legal significance of the Board's 
failure to adopt desegregative reorganization plans for Yonkers 
public schools. In our opinion, two other critical factors must be

551



examined before this issue can be properly resolved.

b. Denial of Equal Educational Opportunity
The Yonkers public schools not only are racially 

segregated, but also are unequal in the quality of educational 
opportunity afforded to students in these schools. As a factual 
matter, the existence of such disparities has clearly worked to the 
disadvantage of minority students, who for many years have received 
their educational instruction in generally inferior facilities, 
from generally less experienced staff, in generally more overcrowed 
and unstable conditions. On the secondary school level, minority 
students were generally more likely to be deprived of the full 
benefits of the district's academic and vocational programs.

The' significance of the disparities in educational 
opportunity in Yonkera public schools lies, for these purposes not 
in the manner of their creation but in the reasons underlying their 
perpetuation. Disparities in the quality of school facilities, the 
scope of curricular offerings, staff experience, or student 
enrollment and turnoverwere not created by discriminatory 
allocations of funds- or other resources; some disparities existed 
well before the presence of significant numbers of minorities in 
the city. Cf. Bell v. Board of Education, Akron Public Schools, 
491 P.Supp. 916, 941 (N.D.Ohio 1980), aff'd, 683 F.2d 963 (6th Cir. 
1982); Berry v. Benton Harbor, supra, 442 F.Supp. at 1306. At the 
same time, however, the Board's more recent conduct served to 
perpetuate many of these inequalities, thus depriving many minority 
students of an educational experience comparable to that available



at other public schools in Yonkers. Such a condition was not
simply a foreseeable result of the Board's segregative policies and
practices. Cf. NAACP v. Lansing Board of Education  ̂ supra, 429
F.Supp. at 602-04; Oliver v. Kalamazoo Board of Education, 368
F.Supp. 143, 174-75 (E.D.Mich. 1973) (school board found liable
where result of board's school construction and boundary policy was
that "old schools were left to Blacks"), aff'd, 508 F.2d 178 (6th
Cir. 1974), cert, denied, 421 O.S. 963 (1975). Rather, this is a
case in which school authorities essentially acknowledged the
disparities in educational opportunity in the district and the fact
that some form of desegregative school reorganization would be
necessary to alleviate these disparities.. The district did
implement some^ measures to address these inequalities, such as
closing old, racially imbalanced schools in Southwest Yonkers
(1976), the, consequent rise in staff experience^in those schools,
and improvements in secondary school curriculum. However, the
district repeatedly refused to implement more comprehensive
desegregative measures to correct these disparities —  the failure
to proceed with desegregation efforts in the early 1970's, the
rejection of the NYU Report proposals,^and the refusal to adopt any
of the Task Force- or Phase II desegregation proposals or any 

0alternative to these proposals —  partly because of the 
desegregative consequences which such proposals would have 
entailed. This racially influenced failure to implement 
desegregative school reorganization proposals resulted in the 
perpetuation of the remaining educational inequalities among the 
district's schools.

5^3



The identiflability of schools as "minority" and "white" 
based on educational and physical disparities has been considered 
an indication of unlawful segregation in cases involving state- 
mandated dual school systems, see Swann v. Charlotte-Mecklenburq 
Board of Education, supra,.402 U.S. at 18, and in cases in which 
school authorities have otherwise been responsible for creating 
unlawfully segregated schools by their own discriminatory conduct, 
see Oliver v. Michigan State Board of Education,-supra, 508 P.2d at 
185; Berry v. Benton Harbor, supra, 442 F.Supp. at 1302. While the 
disproportionate expenditure or allocation of resources to benefit 
white schools rather than minority schools is one obvious basis for 
a finding of intentional discrimination in the provision of 
educational opportunity, see Berry v. Benton Harbor, supra, 442 
F.Supp. at 1306, we believe that these disparities have legal 
significance here as well. The denial of educational opportunities 
in Yonkers has transcended the lack of the "melting pot" effect of 
racial integration; it has instead been characterized by tangible 
inequalities in the quality of education similar to those which 
characterized the inherently unequal segregated schools proscribed 
in Brown and its progeny. In this case, although the City's 
intentional housing discrimination contributed substantially to 
the continued confinement of minorities in educationally inferior 
schools, the school board also knowingly maintained and perpetuated 
considerable inequality in educational opportunity in the schools, 
its failure to rectify this condition being partly attributable to 
its refusal to Implement reorganization proposals such as the NYU 
Report proposals (or suggested alternatives), the Task Force

5 ^ 4



proposals. Phase II, or any desegregative alternative to these 
plans. In our view, the significant disparities in educational 
opportunity described in our factual findings and the circumstances 
surrounding their perpetuation are important factors in determining 
whether the Board is legally responsible for perpetuating the 
segregated condition of Yonkers public schools.— '̂

c. Subsidized Housing Discrimination
The' manner in which-the racial-segregation of Yonkers 

public schools has developed requires us to examine the relevance 
of a city's discriminatory housing practices to the liability of 
school authorities for school segregation. Cf. Arthur v. Nyquist, 
supra, 573 P.2d at 145 n.22 (expressly declining to determine 
relevance of public housing descrimination in school desegregation 
case); Hart v. Community School Board, supra, 512 P.2d at 56 
(city, state and federal housing authorities held not liable on the 
merits for housing policies); Brody-Jones v. Macchiarola, supra, 
503 P.Supp. at 1236~37 & n.27 (absence of findings regarding 
governmental housing practices; court noted that housing authority 
was not a party to litigation). While we do not decide this case on 
an entirely clean slate, the collective wisdom of the courts with 
respect to this issue has yet to result in a consistent legal 
principle capable of definitive application to the unique 
circumstances of this case.

Several earlier school desegregation cases discussed the 
relevance of public housing discrimination in the context of 
determining the constitutionality of school board adherence to a

5S5



neighborhood school policy. These cases generally held that a 
school board's application of a neighborhood school student 
assignment policy was constitutionally unacceptable where 
disciminatory public housing practices had contributed to the 
racial segregation of the neighborhoods. See United States v. 
Texas Education Agency  ̂ supra» 467 F.2d at 863-64 n.22 ("When the 
segregated housing patterns are the result of 'state action', we 
are faced with double discrimination.”) (emphasis in original); 
Arthur V. Nyquist, supra, 415 F.Supp. at 968-69 ("Given the 
purposeful residential segregation in the City of Buffalo, the 
School Board's 'neighborhood school policy* was not, and could not 
be, racially neutral."); Oliver v. Kalamazoo Board of Education, 
supra, 368 F.Supp. at 183 ("The school board should not be heard to 
plead that its neighborhood school policy was racially neutral when 
in fact 'state action under the color of, law' produced or helped to 
produce the segregated neighborhoods in the first place.”). But 
see Deal v. Cincinnati Board of Education, supra, 369 F.2d at 60 
n.4 (evidence of public and private housing discrimination properly 
excluded from school desegregation case,against school board).

More recently, courts have expressed some reservations as 
to the legal validity of this conclusion. Starting with the 
opinion of three Supreme Court Justices in Austin Independent 
School District v. United States, 429 U.S. 990 (1976), and 
continuing with a series of Sixth Circuit rulings, recent school 
desegregation decisions have suggested that school officials cannot 
be held liable for racial imbalance in the schools which results 
from the discriminatory housing practices of other governmental

5 5 0 >



actors. See Austin  ̂supra, 429 U.S. at 994 (Powell,J., concurring, 
joined by Burger,C.J., and Rehnquist,J.) ("The principal cause of 
racial and ethnic imbalance in urban public schools across the 
country —  North and South —  is the imbalance in residential 
patterns. Such residential patterns are typically beyond the 
control of school authorities. For example, discrimination in 
housing —  whether public or private —  cannot be attributed to 
school authorities. Economic pressures and voluntary preferences 
are the primary determinants of residential patterns.”) (footnote 
omitted); Bell v. Board of Education, Akron Public Schools, 683 
F.2d 963, 968 (6th Cir. 1982) ("Under [the argument that a school 
board otherwise innocent of segregative intent is liable for the 
discriminatory, housing practices of other governmental agencies] 
the discriminatory conduct of the FHA in making housing loans and 
local housing authorities in the construction and rental of public 
housing is attributable to school boards. Such a proposal places 
too heavy a burden on the schools to remedy wrongs for which they 
are no more or less responsible than the plaintiffs, the courts, 
the churches,^ the Congress or other institutions. Plaintiffs do 
not suggest how the schools, after a finding of liability, would go 
about remedying this problem or what kind of order a federal court 
could enter that might as a practical matter have a chance of 
changing the fact that black and white families live in separate 
neighborhoods in most towns and cities."); Higgins v. Board of 
Education of Grand Rapids, supra, 508 F.2d at 788-89 ("In Deal ..., 
this Court decided that discrimination by other than school 
authorities cannot be relied upon as the sole basis for showing a

5 S 1



violation by the school board."); Bronson v. Board of Education 
of the City School District of Cincinnati, 578 P.Supp. 1091, 1104- 
OS (S.D.Ohio 1984) (citing Bell and Deal); see also Jenkins v. 
Missouri, No. 77-0420-CV-W-4, slip op. at 42 (W.D.Mo. June 5, 1984) 
(denying interdistrist school desegregation remedy).

In addition, some of the earlier precedents discussed 
previously have either lost some of their precedential weight or 
are factually distinguishable from this case. The Texas Education 
Agency decision also held that a school board's assignment of 
students and implementation of school site selection and 
construction policies based on segregated housing patterns, whether 
publicly or privately caused, is unconstitutional; a subsequent 
decision^-ln that litigation more explicitly equating adherence to a 
neighborhood school policy in a residentially segregated district 
with segregative intent was vacated by the Supreme Court in Austin. 
429 D.S. at 991-92 n.l. Arthur v. Nyquist, decided prior to 
Austin, Involved evidence of a host of school board acts and 
omissions which were designed to perpetuate and enhance segregation 
in the schools. In* the instant caser the record contains 
substantially less (or no) evidence of many of the classic 
segregative student assignment techniques —  optional or non­
contiguous attendance zones; segregative out-of-district transfer 
policies; a pattern of segregative school openings, closings, or 
racial gerrymandering of attendance lines —  some of which were 
found to exist to a significant degree in Arthur.

The legal relevance of public housing discrimination to 
school segregation, however, has not been definitively resolved. A

553



number of cases decided prior to Austin expressly or implicitly 
declined the opportunity to examine the relevance vel non of public 
housing discrimination in a school desegregation case. See 
Milliken v .  Bradley ̂ 418 U.S. 717, 728 n.7 (1974); Swann v .  

Charlotte-Mecklenburq Board of Education, supra, 402 U.S. at 23; 
Arthur V.  Nyquist, supra, 573 F.2d at 145 n.22; see also Oliver v .  

Michigan State Board of Education, supra, 508 F.2d at 183-85 
(affirming lower court finding of segregative intent on other 
grounds). Even the Sixth Circuit's decisions are premised on the 
notion that housing discrimination cannot serve as a basis for 
finding school board liability for school segregation in the 
absence of any evidence that school officials themselves have 
engaged in̂ <̂ intentionally segregative conduct,' a circumstance not 
present here. Bell /v. Board of Education, Akron Public Schools, 
supra, 683 F.2d at 968; Higgins v. Board of Education of Grand 
Rapids, supra, 508 F.2d at 788. Since Austin, only one case, 
decided less than two months after the Supreme Court's 1979 
Columbus and Dayton school desegregation decisions, has reaffirmed 
the principles enunciated in Arthur and Oliver. See Reed v. 
Rhodes, 607 F.2d 714, 730 (6th Cir. 1979), cert, denied, 445 U.S. 
935 (1980).- In Reed, however, the court's finding of segregative 
intent was based not simply on the school board's adherence to a 
neighborhood school student assignment policy despite the existence 
of public housing discrimination, but on the school board's willing 
and repeated construction of schools to service public housing 
projects which the board knew from the outset would be racially 
identifiable. Id. at 729-30; see also Oliver v. Kalamazoo Board

55 “1-



of Education  ̂ supra  ̂ 368 F.Supp. at 171-72 (school board's 
cooperation with real estate developers in constructing school for 
private housing development in previously undeveloped area of city 
constituted intentional promotion and creation of residential and 
school segregation). If any trend in the law can be discerned, it 
consists of an increasing focus on whether some meaningful 
connection exists between the policies of public housing officials 
and the policies of school board officials. See Reed v. Rhodes, 
supra; Bronson v. Board of Education, supra, 578 F.Supp. at 1104- 
05; Brody-Jones v. Macchiarola, supra, 503 F.Supp. at 1236-37 n.27 
(absence of findings regarding governmental housing practices "does 
not preclude consideration of the extent to which defendant school 
officials by. their actions and _inaction may. deliberately have 
sought to build upon and enhance the effects, of existing 
residential segregation”).

A number of factors convince us that the existence of 
subsidized housing discrimination in Yonkers must be accorded legal 
relevance in determining whether school authorities may be held 
legally accountable for the segregation of Yonkers public schools. 
Of primary significance is the fact that the City has been found 
liable, under relevant legal standards, for intentionally 
maintaining and exacerbating racial segregation in Yonkers. This 
determination reflects the fact that a state actor in Yonkers has 
been found to have unlawfully contributed to a condition of racial 
segregation in the community's housing, with a segregative impact 
on its public schools, while another state actor in Yonkers has 
largely failed to alleviate (and in some ways has exacerbated) the

5<̂o



racial segregation of that same community's schools. it is 
undisputable that a hypothetical single state agency which controls 
the operation of, and engages in the racial segregation of, both 
housing and schools —  by confining for racial reasons the city's 
subsidized housing to one section of the city, while simultaneously 
adhering to a neighborhood school policy of student assignment —  
can be held liable for such conduct. It is inconceivable that 
state action may be fractionalized such that two state agencies 
could be permitted to collectively engage in precisely the same 
conduct, yet avoid legal accountability for the identical result. 
It is this principle which we believe underlies the earlier cases 
involving the relevance of public housing segregation to school 
board liability: where^^schopl officials,, knowningly adhere to a 
segregative student assignment policy which is consistent with city 
officials' unlawfully segregative conduct in housing, such a policy 
cannot, as a legal matter, be considered race-neutral. To hold 
otherwise would advance no significant constitutional principle of 
equality or non-discrimination, and would simply lend credence to a 
legal doctrine which permitted school segregation to withstand 
constitutional scrutiny solely by virtue of the two-pronged nature 
of the state action which intentionally contributed to, 
perpetuated, and enhanced this condition.

The relevance of subsidized housing discrimination in 
Yonkers to school board liability is highlighted by the process by 
which school segregation was effectively insured. Even 
acknowledging that the Board and City are separate actors under 
state law, the manner in which mayoral appointments to the Board

SG'



were made in Yonkers rendered this legal separation an artificial 
and constitutionally insignificant one. These appointments not 
only reflected a pattern of decisionmaking by a municipal authority 
consistent with the discriminatory practices of other municipal 
officials; through these appointments, the City and Board also 
created a consistency between housing and school policies which the 
Board had previously resisted. The record also persuasively 
undermines any argument that this consistency between the City's 
confinement of subsidized housing to Southwest Yonkers and the 
school board's failure to implement any significant desegregative 
school reforms was coincidental; rather, the combination of the 
City's housing policies, the mayoral appointment of Board members 
and the subsequent inaction of '"the Board amounted to an 
interrelated governmental effort to preserve the integrity of 
"neighborhood schools” whose racial segregation was governmentally 
sanctioned and steadfastly maintained. In our view, liability for 
school segregation cannot properly rest on artificial distinctions 
between "City" and "Board" conduct which do not reflect the 
practical interrelationship between the policies of these state 
actors. Where a city official exercises power over school board 
appointments as a means of furthering the city's segregative 
objectives and discouraging comprehensive reform, it would be 
anomalous to hold simultaneously that a school board's effectuation 
of these objectives is irrelevant in determining its liability for 
resulting school segregation.

The Board's failure to act is also not merely an 
unadorned "omission" which alone cannot ordinarily support a

S G 2



finding of unlawful segregation. Cf. Hart v. Community School 
Board, supra  ̂ 512 F.2d at 48 ("We assume that mere inaction, 
without any affirmative action by the school authorities, allowing 
a racially imbalanced school to continue, would amount only to de 
facto rather than ^  jure segregation."). Apart from the Board's 
other acts and omissions which perpetuated racial segregation in 
various aspects of the school district's operation, the Board's 
failure to adopt Phase II— ^ or any other substitute or alternative 
plan was a failure to act emanating from a pattern of mayoral 
appointments of Board members who would be considerably less 
inclined to act to undo the segregative impact of prior housing and 
school policies. The Board's conscious- neglect of the racial 
imbalance of the Yonkers public schools was thus not an isolated, 
race>neutral failure to alleviate segregation, but instead 
solidified the segregative impact of the official acts and 
omissions of housing and school authorities preceding it.

The interconnection between mayoral appointments to the 
Board and the Board's subsequent failure to remedy the racial 
imbalance in the schools is made strikingly apparent by comparing 
the Board's conduct prior and subsequent to the district's most 
concerted exeunination and consideration of the problem of school 
segregation. Prior to Mayor Martinelli's complete replacement of 
incumbent Board members in 1978, school officials had rejected, 
ignored or resisted virtually all of the City's frequently 
segregative initiatives: the request to reconsider the closing of 
School 1; the site selection for the new Yonkers High School; 
changes in plans for the construction of School 10; proposed

5^3



attendance zone boundary changes during the mid-1970's; the 
proposed conversion of the school system to a K-8, 9-12 grade 
structure. As Mayor Martinelli appointed new members to the Board, 
school district affairs gradually became increasingly more in tune 
with the City's own objectives: the tabling of a school board 
resolution to return closed school facilities to the City; the 
rejection of Phase II; the failure to implement any alternative 
proposal for alleviating the racial imbalhtnce of the schools. The 
Board's refusal to take steps to desegregate the schools not only 
reflected the'bpposition of a community which had for years played 
a similar role in causing and sustaining the City's discriminatory 
housing practices, but also was consistent with the Mayor's 
acknowliedged preferencii' for neighborhood schools,' whose segregated 
condition had been maintained and exacerbated by such practices. 
In these circumstances, we conclude that it is reasonable and 
proper to hold the Board jointly liable with the City for 
perpetuating the racial imbalance of Yonkers public schools.

The Board's reliance on its neighborhood school policy 
cannot properly ' immunize its ' resulting perpetuation of racial 
segregation in Yonkers public"schools. The Board's increasingly 
rigid adherence to' th<i policy is Inconsistent with both racial and 
non-racial considerations. Prior to the 1960's, the concept of 
neighborhood schools did not preclude susbtantial crosstown or out- 
of-neighborhood assignment of students, not only on the secondary 
school level but also on the elementary school level (the most 
notable examples being the segregative reassignment of white 
students from Schools 1 and 25 to virtually all-white Northwest

S G 4



Yonkers schools). The more steadfast application of the policy has 
instead paralleled the increased development of subsidized housing 
in Southwest Yonkers and has persisted despite the fact that 
relative school utilization, fiscal instability, and disparities in 
educational opportunity, in addition to racial imbalance, would 
have been expected to lead to at least some significant alteration 
of student assignment patterns. The policy also did not preclude 
the district from assigning Special Education students in a manner 
entirely inconsistent with neighborhood schooling, see Armstrong v. 
Brennan, supra, 539 F.2d at 636-37, and was of considerably less 
import on the secondary school level. And as noted above, the 
existence of Intentional housing discrimination which contributed 
to the confinement of minorities to Southwest Yonkers, together 
with the Board's application of an educational philosophy 
consistent with this practice, detracts significantly from the 
claim of race-neutrality

The Board's recognition that "white flight" from the 
public schools was a likely consequence of Phase II*s adoption, 
even if accurate, is not a legally acceptable explanation for its
actions and omissions. White flight may in certain circumstances>
be a proper consideration in devising and implementing a volunatry

■- ' - : i  O  I.J

desegregation plan. See Parent Association of Andrew Jackson High 
School V. Ambach, supra, 598 F.2d at 719-20; Higgins v. Board of 
Education of Grand Rapids, supra, 508 F.2d at 794. Yet the Board's 
refusal to adopt Phase II or to give serious consideration, either 
prior to or subsequent to Phase II, to any other significant 
desegregation proposal, belies any legitimate consideration of such

5 0 6



consequences as an explanation for its inaction. The Board's 
refusal to implement Phase II of any alternative plan resulted in 
the perpetuation of racial imbalance and educational inequalities 
of which the Board was long aware and had only begun to confront in 
any meaningful fashion at the time of the 1976 fiscal crisis. While 
the late 1960's and early 1970's were marked by some efforts to 
alleviate the increasing racial Imbalance in the schools, theij
segregative decisions made both at that time and afterward suggest 
that the white flight concern was advanced primarily in order to 
justify or explain the district's deliberate perpetuation of 
segregation rather than as a legitimate consideration in devising 
means by which to more effectively promote desegregation. See id. 
at 720; Brody-Jones v. Macchiarola, supra, 503 P.Supp. at 1242. 
The possibility of white flight cannot be invoked in an effort to 
avoid or abandon efforts to desegregate schools whose racial 
imbalance is the result of prior unlawful acts. See Hart v. 
Community School Board, supra, 383 F.Supp. at 742-43. We find its 
invocation equally untenable here, where the Board's own prior acts 
and omissions —  its assignment of minority Special Education 
students to predominantly white schools, its assignment of minority 
staff to predominantly minority schools, the continued disparities 
in educational opportunity at identifiably minority and white 
schools, and the rejection of the NYU Report proposals —  served to 
foster and encourage such attitudes. See Arthur v. Nyquist, 
supra, 415 F.Supp. at 929.

Based on all of the above considerations, we hold that 
the Board's failure to implement measures for alleviating

Q̂>(d



systemwide school segregation, in the context of the totality of 
all of its actions and omissions, is sufficient to render it 
legally responsible for the perpetuation of racial segregation in 
Yonkers public schools. All significant plans to effectuate 
systemwide desegregative school reorganizations and/or equalize 
educational opportunities in Yonkers met with disapproval or 
resistance: the efforts of state education authorities in the
early 1970's; the 1972 NYU Report proposals; the 1976-77 Task Force 
recommendations; the 1977 Phase II plan. Although the district was 
not without desegregative initiatives —  for example, the planned

. I
opening of School 10 and King, and school closings in 1976 which 
resulted in the elimination of a number of racially isolated 
schools and the reassignment of some students in a desegregative 
manner (to Schools 13, 27, 31, Emerson and Burroughs) —  even these 
measures were recognized merely as initial steps toward a more 
comprehensive alleviation of racial imbalance in Yonkers public 
schools. The Board's failure to implement any such plan, its 
knowing perpetuation of inequalities in educational opportunity,
and its other acts of intentional discrimination, were consistent

* ' ■ ■ __
with the principal segregative motive underlying the City's housing 
policies and practices: the general confinement of minorities to 
Southwest Yonkers.

The Board has likewise failed to satisfactorily establish 
that its segregative acts and omissions would have occurred "even 
if  racial considerations had been ignored. Indeed, certain 
features of school district operations, such as the steering of 
minorities, the Special Education program, and the assignment of

5 & 1



teachers and administrative personnel, would certainly have been 
different had racial factors not played the primary role which they 
actually did. At least some of the inequalities in educational 
opportunity discussed in our findings would surely have been 
remedied (or remedied more quickly) had desegregation not been one 
of the likely consequences of such action. To the extent the 
Board's persistent refusal to implement desegregative 
reorganization plans can even be evaluated on an "even if" basis, 
we are persuaded that, as with the City's consistently segregative 
subsidized housing site selections, a different pattern of 
decisionmaking would have occurred had the Board's awareness of and 
responsiveness to racially Influenced community opposition not been 
present.

In conclusion, we hold that the Board is liable for the 
racial segregation of Yonkers public schools.



2. The City
The liability of a municipal entity for the racial 

segregation of a state-created school system turns on the 
resolution of two questions: first, whether such an entity may
ever be subject to such liability; and second, under what 
circumstances such liability may be imposed.

The Second Circuit's decision in Arthur v. Nyquist 
answers the first question in the affirmative and sheds light on 
the second. In Arthur, the district court held the City of 
Buffalo's Common Council liable for the racial segregation of the 
Buffalo public schools based on the Common Council's opposition to 
school integration and its role in causing and maintaining 
segregated housings conditions. As for Its opposition to school 
integration, the court found that the Common Council had 
demonstrated its segregative intent in three ways. First, the 
Council adopted an ordinance barring the use of portable classrooms 
after the Board had agreed to purchase them in an effort to 
increase the capacity of white schools and thereafter reassign 
minority students to these schools. Second, the Council refused to 
provide funds for the implementation of a desegregative middle 
school program developed by the Board. Third, the Council insisted 
on limiting the number of blacks at a high school whose acquisition 
from the city's Catholic Diocese was under consideration by the 
Council. 415 F.Supp. at 953-55. The court also found that the 
Common Council and city housing authorities had helped cause or 
maintain residential segregation through its urban renewal program, 
in which dislocated black families were relocated in a

5(A



geographically limited, minority populated area of the city. The 
court held that the Common Council's segregative conduct with 
respect to housing constituted a separate and independent ground 
for holding it liable for the segregation of the Buffalo public 
schools. at 969.

The Court of Appeals affirmed the district court's 
determination of municipal liability solely on the ground that the 
Common Council "aided the Board [in resisting the State's order to 
integrate] by systematically denying funding to programs which 
would have encouraged integration." 573 P.2d at 145. The court 
did not examine the other school-related bases for the Common 
Council's liability and expressly declined to reach the issue of 
the relevance of th,e^.muDicipalit^t'8 role in furthering housing 
segregation. M. at 145 & n.22. Thus, although the holdings of 
the district court and the Court of Appeals differ with respect to 
the circumstances under which a municipal entity may be held liable 
for school segregation, both decisions recognize that a city may be 
held liable for the racial segregation of state-created public 
schools. _ 1

In support of its argument that the City is not a proper 
defendant in the. school desegregation portion of this case, the 
City cites Greenhouse v. Greco, 617 F.2d 408 (5th Cir. 1980), and 
United Black Firefighters of Norfolk v. Hirst, 604 F.2d 844 (4th 
Cir. 1979), for the proposition that the City's mere exercise of 
political influence over the Board is insufficient to render it 
liable for the segregation of the Yonkers public schools.

In Greenhouse, the Fifth Circuit held that the district

5 1 0



court did not abuse its discretion by dismissing the Diocese of
Alexandria (a church district encompassing twenty-nine counties of
the State of Louisiana) and the diocesan bishop and school
superintendent from a parochial school desegregation case.
Significant differences exist, however, between the church district
in Greenhouse and the City of Yonkers and their respective
relationships with the school systems at issue in each case. The
diocese and bishop had no legal relationship with or legal
authority over any of the church corporations which, like the
Yonkers Board of Education, were directly responsible for the
operation or the diocesan parochial schools. Thus, ”[a]ny and all
assistance rendered to each school by the Bishop and/or the Diocese
[wals entirely voluntary", and each church corporation was "subject
to the bishop's authority only by virtue of religious obedience to
canon law." at 411, 414. According to the court.

The weight wielded by the bishop consists of moral 
persuasion backed by possible religious sanctions. He 
simply does not have the legal power traditionally found 
in civil government, nor does he have the legal standing 
to carry out any Integration decrees which may eventually 
be issued by a federal court. It is apparent that only 
the individual church corporations maŷ ' respond in this 
regard.

Id. at 414 (footnote deleted). In Yonkers, the legal relationship
.-1 • ■

between the City and Board is significantly different. Despite 
their legal autonomy under state law, the City is legally 
responsible for allocating funds to the school district, for 
appointing school board members, and for retaining legal title to 
property designated for educational use. More importantly, the 
City may indeed be called upon to respond to school desegregation 
decrees issued by a federal court. See Arthur v. Nyquist, 712 F.2d

51



809 (2d Cir. 1983) (ordering city to appropriate additional funds 
to school board to enable board to implement school.desegregation 
plan), cert, denied  ̂ 104 S.Ct. 1907 (1984); see also United States 
V. Board of School Commissioners of Indianapolis, supra 
(restraining city housing authority from developing public housing 
projects in city as part of interdistrict school desegregation 
remedy). Finally, the City's capacity to significantly affect the 
racial composition of the City of Yonkers and the Yonkers public 
schools by virtue of its subsidized housing policies and practices 
and its involvement in school-related affairs far exceeds the 
practical capacity of the diocesan defendants in Greenhouse to have 
similarly affected the racial composition of the diocesan parochial 
schoolŝ ,. Thus, the,,concerns expressed by thê  F^th Circuit in 
Greenhouse are simply not apposite in determining the liability vel 
non of the City of Yonkers,in this case.

Hirst is more easily distinguished. In Hirst, an 
employment discrimination case brought by city fire department 
employees against various city departments and officials, the court 
dismissed plaintiffs' claim against the mayor and the City Council 
based on the absence ..of any allegation that these defendants could 
"control, or interfere with, the employment practices of the police 
department*" 604 P.2d at 846. The court also noted that 
plaintiffs' "assertion that the City Council creates laws affecting 
the Fire Department with no statement of how any such action 
discriminated against the plaintiffs" was insufficient to state a 
claim under the applicable civil rights statutes. Not only 
are such allegations present in the instant case, but the evidence

513



itself convincingly establishes both City involvement in school 
affairs and intentionally discriminatory conduct affecting both 
housing and schools. The allegations and evidence in this case 
thus establish far more than the mere exercise of political 
influence over the Board which the City contends is insufficient to 
render it liable for the segregation of Yonkers public schools.

In sum, we conclude that the City of Yonkers is a proper 
party to the school desegregation portion of this case and may be 
held liable for the racial segregation of Yonkers public schools. 
See Arthur v. Nyquist, supra; see also United States v. Board of 
School Commissioners of Indianapolis, supra. This conclusion is 
fully consistent with the decisions of the district and circuit 
courts in Arthur’ v. Nyquist,- with- the reasons stated in our 
discussion of jurisdiction over the claims asserted against the 
City, see SCHOOLS VI.A:;2 supra, and-, as-noted* beloir, with Supreme 
Court decisions involving school desegregation.We thus turn to 
the second question posed earlier: under what circumstances may a 
municipal entity be held liable for the segregation of public 
schools.

As noted above, the Court of Appeals in Arthur v. Nyquist 
relied solely on the Buffalo Common Council's budget-related 
conduct in upholding its liability for the segregation of the 
Buffalo public schools, without discussing or expressly declining 
to determine the relevance of other forms of municipal activity to 
the liability determination. This conclusion, however, is only the 
the beginning of our inquiry. While the Court of Appeals relied 
only on the Common Council's budget-related conduct in holding it



liable for the segregation of the Buffalo public schools, we do not 
read its decision as precluding reliance on other forms of 
municipal conduct, including but not limited to those discussed by 
the district court, which also demonstrate an intent to cause or 
maintain school segregation. Just as a school board can effectuate 
school segregation through a variety of methods, so too can a city 
exhibit segregative intent and cause segregation in its schools in 
a variety of ways. We see little reason to restrict the scope of 
our inquiry to budgetary matters without also examining whether the 
City's other actions and omissions involving housing. Board 
appointments, school site selection, and other involvement in 
school affairs were characterized by the segregative intent, and 
achieved the segregative result, proscribed by the Court of Appeals 
in Arthur.

The relevance of a municipal entity's discriminatory 
housing policies or practices to school segregation has been 
explored in another context. In United States v. Board of School 
Commissioners of Indianapolis, 573 P.2d 400 (7th Cir.), cert, 
denied, 439 U.S.‘ 824 (1978), the Seventh Circuit held that the 
discriminatory housing practices of a municipal housing authority 
could provide a basis for ordering interdistrict relief for school 
segregation. The court recognized that segregative housing 
practices are causally related to school segregation, and that 
Justice Stewart's concurring opinion in Milliken v. Bradley, 418 
U.S. 717 (1974), and the district court's decision in Evans v. 
Buchanan, 393 P.Supp. 428 (D.Del.), aff'd mem., 423 U.S. 963 
(1975) , both supported the imposition of an interdistrict school

5 1 &



desegregation remedy where governmental authorities had engaged in 
segregative public housing practices. The court concluded that the 
Housing Authority of the City of Indianapolis' policy of confining 
public housing projects within the boundaries of the Indianapolis 
Public School District, if found to be discriminatory in intent and 
segregative in its interdistrict effect, would support the 
implementation of an interdistrict school desegregation remedy 
involving the City of Indianapolis and its surrounding suburban 
school districts. at 408-10. On remand, the district court 
found that discriminatory intent existed, and as part of its 
interdistrict remedy, ordered the housing authority to refrain from 
developing any,, new low-rent public housing projects within the 
boundaries of the Indianapolis school district. 456 F.Supp. 183, 
192 (S.D.Ind. 1978); 419 P.Supp. 180, 186 (S.D.Ind. 1975). The 
Seventh Circuit upheld these findings and approved the relevant 
aspects of the district court's interdistrict remedy. 637 F.2d 
1101, 1108-11, 1114, 1117 (7th Cir.), cert, denied, 449 U.S. 838 
(1980).

The Indianapolis litigation is obviously not dispositive 
of the issue before this Court: it deals only with the predicate 
for imposing interdistrict relief for school segregation and thus 
neither authorizes nor precludes the imposition of municipal 
liability and the fashioning of "school-specific" relief— ^for the 
segregation of a city's public schools. Nevertheless, the 
Indianapolis litigation is relevant insofar as it recognizes the 
causal relationship between a city's, housing practices and their 
impact on the city's schools, and supports the conclusion that city

5 ^ 5



housing authorities can be held legally accountable in a school 
desegregation suit for discriminatory housing practices which 
contribute to the segregation of schools. The ordering of purely 
housing-related relief against the Indianapolis city housing 
authorities is consistent with the general principle of fashioning 
a remedy which is commensurate with the nature and extent of the 
violation; since the city's only involvement in causing or 
maintaining segregated schools was through its unlawful public 
housing practices, the remedy ordered consisted only of 
prohibitions against the continuation of such practices. This 
issue of remedy, however, does little to undermine the support for 
the principle of holding a city responsible for the school-related 
consequences of its segregative public housing practices. In the 
instant case, where the inquiry is purely intradistrict in scope, 
the reliance on unlawful municipal housing practices as a basis for 
assigning legal responsibility for school segregation is certainly 
no less appropriate than in Indianapolis. We conclude that the 
Indianapolis litigation and the district court's decision in Arthur 
both support the relevance of a city's segregative public housing 
practices in determining whether the city may properly be held

• 1 5 . » r

liable for the segregation of the city's public schools.
While the Supreme Court has not addressed either the 

question of whether a city may ever be held liable for segregation 
in schools or the relevance of a city's housing or other practices 
to such a determination, we believe that the principles enumerated 
in Indianapolis and Arthur are consistent with the Supreme Court's 
school desegregation precedents. In Swann v. Charlotte-Mecklenburg

'5n<^



Board of Education, the Supreme Court cautioned against using 
school desegregation cases "to achieve broader purposes lying 
beyond the jurisdiction of school authorities." 402 U.S. at 22. In 
Austin Independent School District v. United States, three 
Justices, concurring in the remand of a school desegregation suit 
for reconsideration in light of Washington v. Davis, noted in a 
similar vein that the principal cause of school segregation is 
racially imbalanced residential patterns and that "discrimination 
in housing —  whether public or private —  cannot be attributed to 
school authorities." 429 U.S. at 994. Neither case, however, 
intimates that a city cannot be held liable where its own 
intentionally segregative housing practices result in the 
segregation of schools. ~ln Swartn, the Court specifically declined 
to resolve the issue of "whether a showing that school segregation 
is a consequence of other types of state action, without any 
discriminatory action by school authorities, is a constitutional 
violation requiring remedial action by a school desegregation 
decree," at 23, thus leaving open the question not only of 
school board liability for the intentional discriminatory acts and 
omissions of others, but also of city liability for school 
segregation caused bjf the city's own intentionally discriminatory 
conduct. And in Austin, the concurring opinion spoke only of the 
liability of school authorities for the discriminatory housing 
policies of others; once again, the Court did not address the 
liability of governmental bodies, city or school, for their own 
discriminatory conduct. Indeed, if any trend can be discerned from 
the Court's school desegregation cases, it is that the

5̂ 1



discriminatory practices of governmental housing authorities may, 
in certain circumstances, be relevant to a determination of the 
causes of and remedies for school segregation. See Evans v. 
Buchanan, 423 U.S. 963 (1975), summarily aff'q 393 F.Supp. 428 
(D.Del. 1975); Milliken v. Bradley, supra, 418 U.S. at 755 
(Stewart,J., concurring). The Supreme Court's school desegregation 
cases thus do not at all evince disapproval of, and indeed tend to 
support, holding municipal authorities liable when such 
authorities, by their own conduct, have intentionally contributed 
to the racial segregation of state-created public schools. These 
decisions also are consistent with the conclusion that a city's 
housing practices are relevant in making this determination.

We need not decide whether the district court's 
alternative holding in Arthur —  that a city's discriminatory 
housing practices alone form an independent basis for a finding of 
city liability for school segregation —  is a correct statement of 
the law regarding school s e g r e g a t i o n W e  believe that the 
housing-related practices of City authorities, along with the 
various ̂ other methods- by which City officials have influenced 
school district operations and thereby contributed to its racial 
segregation, are allt- relevant in determining whether the City's 
acts and omissions as a whole have resulted in the intentional 
creation or aggravation of racial segregation in the Yonkers public 
schools. The Supreme Court's school desegregation decisions have 
one common guiding principle: where governmental authorities, 
through various acts and omissions, intentionally create or 
maintain racially segregated schools, such authorities may be held

5 1 8



legally responsible for correcting this condition. in our view, 
these principles of intentional state action, causation and 
segregative impact, rather than the artificial fragmentation of 
responsibility for public schools based on state-created legal 
subdivisions of governmental authority, are more constitutionally 
relevant criteria for assessing the liability of city authorities 
for the segregated condition of the public schools located within 
their borders. The conduct of the City is no less "state action" 
than the conduct of the Board. We thus reject the contention that 
the Board's state-delegated responsibility for the operation of the 
Yonkers public schools somehow shields other governmental 
authorities from being held legally accountable when such 
authorities engage in intentionally segregative conduct with 
respect to these schools.

In this case, the City's housing practices are an 
important part of its overall intentionally segregative conduct. 
The City's confinement of subsidized housing virtually exclusively 
to Southwest Yonkers not only violated Title VIII and the equal 
protection clause but also had a clear impact on Yonkers public 
schools. The persistent and deliberate refusal to develop 
subsidized housing outside of Southwest Yonkers had clearly 
segregative consequences not only for residential conditions in the 
city; in light of the school district's historic neighborhood 
school policy, the perpetuation and exacerbation of racial 
imbalance in the school district was a natural, probable and 
actually foreseen consequence of the City's discriminatory housing 
practices as well. See Columbus Board of Education v. Penick,

5 1 " )  ■



supra, 443 U.S. at 464-65. Indeed, the unavoidable realization 
that opposition to a more geographically dispersed distribution of 
subsidized housing was related in part to the impact of such a 
housing policy on the community's schools, together with the City's 
own attempts to alter school attendance zone boundaries in a 
segregative manner, support our conclusion that the City's 
segregative intent was not limited to residential patterns in 
Yonkers. Just as a school board's alteration of attendance zone 
boundaries in a segregative manner may support a finding of 
intentional segregation of schools, see id. at 462* Reed v. 
Rhodes, supra, 607 P.2d at 734; NAACP v. Lansing Board of 
Education, supre^» 559 P.2d at 1049-51, similar proposals by City 
officials, especially when clearly based on racial considerations, 
also are probative of segregative intent. We recognize that the 
Board had sole legal authority to implement student reassignments 
or educational programs designed to reduce the racial segregation 
of the public schools and thus ameliorate the segregative impact of 
the City's housing practices. Yet the Board's failure to do so, as 
well as its other segregative acts and omissions, do not properly 
relieve the City, ̂ o m  legal responsibility for the fact that its 
own discriminatory housing practices contributed substantially to 
the systemwide perpetuation and exacerbation of racial segregation 
in both housing and schools. Cf. Arthur v. Nyquist, supra, 415 
P.Supp. at 969. The City's housing practices provide a strong 
basis for holding the City legally responsible for the racial 
segregation of the Yonkers public schools.

Although the geographic proximity of the Riverview

5 % o  .



project and School 10 provides a visually unambiguous example of 
the interrelationship between housing and schools, the basis for 
the City's liability for the segregation of School 10 and 
surrounding schools is no different than the basis for its 
liability for school segregation systemwide. Unlike the Board's 
opening of School 10, one of only two elementary schools opened by 
the Board since 1965, Riverview represented for the City one 
segment of a consistent and longstanding pattern of segregative 
subsidized housing development in Yonkers. And unlike the intent 
of the Board, for which the planning of School 10 represented part 
of a series of initial efforts to remedy racial imbalance in 
Southwest Yonkers schools, the City's development of Riverview,

11 j ! -along with other subsidized housing projects planned 
contemporaneously with it, represented the most concentrated 
portion of a pattern of subsidized housing development which was 
motivated at least in part by an intent to exclude minorities from 
East and Northwest Yonkers. Thus, regardless of whether some City 
officials may have at one time shared the Board's optimistic 
expectation that School 10 itself would be racially integrated, the 
City's conduct with respect to Riverview and School 10 can be 
viewed properly only as part of prior, contemporaneous, and 
subsequent housing practices which intentionally preserved racial 
segregation throughout the City as a whole.

The mayoral appointment of Board members is also relevant 
evidence of overall municipal intent to maintain the racial 
segregation of Yonkers public schools. The relevance of such 
conduct was implicitly acknowledged in Arthur, in which the

5«1



district court examined a mayoral appointment to the Buffalo Board 
of Education but concluded that the appointment of a single 
opponent of busing was insufficient evidence of discriminatory 
intent. Arthur v. Nyquist» supra, 415 F.Supp. at 959; cf. United 
States V. City of Birmingham, 538 F.Supp. 819, 826 (E.D.Mich. 
1982) (recall of City Commissioners who supported proposed 
integrated low-income housing project and appointment of 
replacements by City Commissioners who opposed project constitutes 
evidence of city's discriminatory intent in interfering with 
development of housing project), aff*d, 727 P.2d 560, 564-65 (6th 
Cir.), cert, denied, 105 S.Ct. 95 (1984 ). As noted previously, we 
find that the mayoral pattern of Board appointments —  the failure 
to reappoint Board members known for their commitment to school 
desegregation, the appointment and reappointment of individuals in 
a manner consistent with the Mayor's commitment to neighborhood 
schools, and the resulting perpetuation of the racial segregation 
which the City itself had deliberately contributed to and 
maintained —  is sufficient in the circumstances of this case to 
support a finding of segregative intent with a resulting systemwide 
segregative impact on Yonkers public schools.

The independent' legal status of the City and Board and 
the limited nature of the mayoral statutory appointment power does 
not, in our view, preclude a finding of municipal liability for 
school segregation based in part on mayoral appointments to the 
board. While a city's legal responsibility for the perpetuation of 
segregated schools cannot appropriately rest simply upon the 
imposition of vicarious liability for the independent acts and

S82



omissions of school officials who are responsible for and capable 
of changing this condition, to view the conduct of the Yonkers 
Board of Education independently of the circumstances and manner in 
which its members were selected would be to artificially separate 
city powers, policies and practices from educational affairs in a 
manner wholly inconsistent with the reality of public education in 
Yonkers. Although state law expressly provides for mayoral 
appointments and budgetary control, as well as the "independent" 
status of the Board, it in no way contemplates the deliberate 
perpetuation of racial segregation in housing and schools by those 
officials charged with the responsibility for administering these 
respective areas of activity. Of course, continued attempts to 
dominate or control Board members subsequent to their appointments 
might constitute additional persuasive evidence of improper motive. 
The absence of evidence of such occurrences in this case, however, 
does not diminish the relevance of the City's more subtle, yet 
significant, segregative influence over educational affairs. 
Indeed, a contrary rule would permit a municipality bent on 
perpetuating racial segregation to achieve immunity from federal 
remedial measures merely by allocating responsibilities to separate 
governmental agencies which nevertheless act for similar purposes. 
The combination of the City's segregative housing practices and 
mayoral appointments together have served to perpetuate racial 
segregation in Yonkers public schools and constitute sufficient 
grounds for a finding of municipal liability.

We are cognizant that this area of municipal activity, 
more so than any other, involves an inquiry into politically-

5«3  .



related affairs and activities which does not easily lend itself to 
review by the federal judiciary. In Mayor v. Educational Equality 
League, 415 U.S. 605 (1974), the Supreme Court cautioned against 
judicial interference in the discretionary appointment processes of 
local elected officials. In Mayor, plaintiffs alleged that the 
Mayor of Philadelphia's predominantly white appointments to a 
school board nominating panel constituted a violation of the equal 
protection clause. Plaintiffs sought an injunction barring the 
most recently selected panel from submitting nominees for board 
membership to the Mayor, and an order directing the Mayor to 
appoint a panel "fairly representative of the racial composition of 
the school community.” at 609. The Supreme Court dismissed 
the claim, holding that plaintiffs' proof of racial discrimination 
was not sufficiently reliable. According to the Court, an 
ambiguous statement by the Mayor about the racial composition of 
the 1969 board (rather than the 1971 panel), a Deputy Mayor's 
unawareness of certain black organizations in the city, and racial 
composition percentage comparisons which were considered 
meaningless based on the small size of the sample and the 
inappropriateness of using the population at large in making the 
comparisons, constituted evidence which was "too fragmentary and 
speculative” to support a claim of racial discrimination. at 
621. The Court also expressed its concern that "judicial oversight 
of discretionary appointments may interfere with the ability of an 
elected official to respond to the mandate of his constituency" and 
that such oversight raised "delicate issues of federal-state 
relationships...made particularly complex by the interplay of the

5 2 ^  •



Equal Protection Clause of the Fourteenth Amendment, with its 
special regard for the status of the rights of minority groups and 
for the role of the Federal Government in protecting those rights." 
Id. at 615; see also James v. Wallace, 530 F.2d 963 (5th Cir. 1976) 
(rejecting claim of discriminatory appointments by Governor of 
Alabama to state boards and commissions based on inadequacy of 
statistical evidence and discretionary nature of appointments). 
Because of the absence of reliable proof of racial discrimination, 
the Court did not resolve these constitutional concerns. 415 U.S. 
at 616.

While a constitutional challenge directed solely at the 
mayoral appointment process would present problems similar to those 
raised in Mayor and James, the instant case does not rest on such 
grounds. We do not find that the evidence of mayoral Board 
appointments itself establishes a constitutional violation 
requiring remedial relief in the form of new appointments or 
changes in appointment procedures. This is not a case in which 
this Court is effectively asked to order the Mayor "to exercise his 
discretion in a particular way." 415 U.S. at 615 (quoting Carter 
V. Jury Commission of Greene County, 396 U.S. 320 (1970) 
(challenging state governor's alleged discriminatory exclusion of 
blacks in discretionary appointments to county jury commission)). 
Rather, the evidence concerning mayoral appointments to the Board 
is relevant and significant in this case insofar as it provides 
circumstantial evidence of a pattern of decisionmaking consistent 
with other municipal acts and omissions designed in part to 
perpetuate the segregated condition of housing and schools in

5 8 5



Yonkers. To the extent that this segregation was caused in part by 
housing practices influenced by racially motivated community 
opposition to nondiscriminatory policies of subsidized housing site 
selection and construction, the Mayor's responsibility for 
responding to the concerns of this same community cannot reasonably 
preclude judicial examination of mayoral appointments to the school 
board. Moreover, the evidentiary pitfalls inherent in drawing 
conclusions about the racial composition of governmental boards or 
commissions from statistically limited and inapposite numerical 
evidence of disproportionate racial impact are not present here, 
where the extensive testimony of witnesses, the contemporaneous 
statements, perceptions and impressions of city and school 
officials and community members, and the more recent actions of the 
Board which have been consistent both with the Mayor's efforts to 
exercise greater control over school affairs and with the City's 
segregative housing practices, all provide a more than adequate 
supply of relevant information from which conclusions regarding 
intent and impact may be drawn.

The task of examining the motivations or reasons 
underlying the conduct of state and local governmental authorities 
is an admittedly delicate one, particularly where the 
decisionmaking process involves the exercise of discretion by 
locally elected officials. Yet the sensitive and elusive nature of 
this inquiry is inherent in the multitude of school desegregation 
cases which federal courts have been called upon to decide over the 
past decade. To ignore the circumstances surrounding the mayoral 
appointments to the Board in this case would be to immunize from



review a single but significant aspect of official decisionmaking 
which has collectively resulted not simply in a disproportionately 
low representation of minority ethnic groups on a particular 
governmental body, but in the city-wide racial segregation of 
public housing and public schools. Where discretionary mayoral 
appointments are neither examined in isolation nor challenged as 
impermissible in and of themselves, but are one aspect of an 
overall pattern of consistently segregative conduct occurring over 
several decades, the arguments for federal judicial noninterference 
in determining the causes and consequences of this exercise of 
official decisionmaking power become increasingly untenable. We 
conclude that an examination of the manner in which Board 
appointments were made in Yonkers is appropriate under the 
circumstances described above and- that such appointments, along 
with other segregative practices of the City and other evidence of 
involvement in educational affairs, constitute a sufficient basis 
for holding the City legally responsible for the racial segregation 
of Yonkers public schools

Not all of the City's school-related conduct was 
segregative in its ultimate impact. Indeed, the legal 
relationships which gave the City its most direct control over 
school affairs were generally not accompanied by racially 
segregative consequences to Yonkers public schools. The City's 
involvement in the site selection for Yonkers High School and 
Saunders Trades and Technical High School, while illustrative of 
the City's somewhat successful efforts to influence school district 
decisionmaking, eventually resulted in the selection of sites which



were preferred by the Board and were not racially segregative. 
Similarly, the City Council's budgetary power vested the City with 
considerable control over educational matters; this control, 
however, was not actually exercised in a manner which resulted in 
the perpetuation of racial segregation in Yonkers public schools. 
Cf. Arthur v. Nvouist, supra, 573 P.2d at 145. Nevertheless, the 
City's acts and omissions need not have been uniformly segregative 
in order to establish its liability for the segregation for which 
some of its conduct is responsible. See Arthur v, Nyquist, supra, 
415 F.Supp. at 913. Whether direct or indirect, the City's housing 
practices, the mayoral appointment of Board members, and other City 
involvement in school affairs are more than adequate evidence of 
the City's intentional perpetuation and exacerbation of racial 
segregation in Yonkers public schools. We therefore hold that the 
City is liablê ' for the racial segregation of Yonkers public 
schools.



CONCLUSION

Having found the defendants liable, it is appropriate that 
the remedy phase of these proceedings be addressed.

The Court will hold a scheduling conference on December 18, 
1985 at 9:45 A.M.

SO ORDERED.
Dated: New York, New York

November 20, 1985 L e o n a r d B  G ANOf

U.S.D.J.

-589-



FOOTNOTES

1/ The procedural history of this litigation is set forth
below.

On June 24, 1980, the Yonkers Board of Education ("the
Board") was notified that the United States Department of Education 
had determined that the racial segregation of the Yonkers school 
system was caused by actions and omissions of the Board and the 
City of Yonkers which violated Titles IV and VI of the Civil Rights 
Act of 1964, the fourteenth amendment, and contractual assurances 
made by the Board in consideration of its continuing receipt of 
federal financial assistance. GX 96.3, 96.4. The Board also was
invited to engage in efforts to bring the system into voluntary
compliance. GX 96.3. By a letter dated November 4, 1980, the 
Department of Education notified the Board that its efforts to 
obtain adequate voluntary compliance with Title VI had been
unsuccessful and that the determination of noncompliance would be 
referred to the United States Department of Justice unless the 
Board submitted an acceptable desegregation plan within ten days. 
GX 96.2. On November 17, 1980, the Department of Education, having 
determined that voluntary compliance could not be obtained,
referred the matter to the Department of Justice. GX 96.1.

On November 24, 1980, the Board filed a complaint seeking to 
enjoin the United States Departments of Education and Justice from 
instituting an action against it based on alleged violations of 
Title VI and seeking an order directing these departments to resume 
negotiations designed to achieve the Board's voluntary compliance 
with Title VI. On December 1, 1980, the Board's application for a 
temporary restraining order and preliminary injunction was denied. 
Yonkers Board of Education v. United States Department of 
Education, supra.

On December 1, 1980, the Attorney General of the United
States filed suit against the Board of Education, the City of 
Yonkers, and the Yonkers Community Development Agency ("the CDA"), 
alleging that the defendants had engaged in racial discrimination 
in the administration of the City's public schools and subsidized

-I-



housing programs. The defendants named in the housing portion of 
the suit are the City of Yonkers and the CDA (collectively "the 
City"). The complaint charges that those defendants "have 
intentionally followed a systematic pattern of selecting sites for 
public and subsidized housing projects that has effectively 
perpetuated and seriously aggravated residential racial 
segregation in the City of Yonkers, in violation of the 
Constitution, and of Title VIII of the Civil Rights Act of 1968." 
Complaint, 1 24. The defendants named in the school portion of the 
suit are the Yonkers Board of Education and the City of Yonkers. 
The complaint charges that the "segregated condition of the public 
schools operated by the School Board has been caused, in 
substantial part, by intentional, racially discriminatory actions 
and omissions" of the Board and the City. Complaint, 1 16.

On March 4, 1981, the Yonkers branch of the National 
Association for the Advancement of Colored People ("NAACP") and 
Regina Ryer, a minor by her next friend, Charlotte Ryer 
("plaintiff-intervenors"), moved to intervene in this suit as 
party-plaintiffs on behalf of themselves and all others similarly 
situated. On June 29, 1981, this Court granted Plaintiff- 
intervenors leave to intervene. United States v. Yonkers Board of 
Education, 518 F.Supp. 191, 201-03 (S.D.N.Y. 1981), and subsequent­
ly certified the action as a class action on behalf of all black 
residents of Yonkers who are currently residents of, or eligible to 
reside in, publicly assisted housing in Yonkers, or who are parents 
of students currently attending public school in Yonkers.

The City's answering papers asserted a counterclaim against 
the United States and a third-party complaint against the United 
States Department of Housing and Urban Development ("HUD"). 
Plaintiff-intervenors amended their complaint to add a claim 
against HUD. Plaintiff-intervenors' claim against HUD was settled 
by a Consent Decree approved by this Court on March 19, 1984. The 
City'*s counterclaim and third-party complaint were dismissed on 
September 18, 1984 on the grounds that they were barred by soverign 
immunity and that they failed to state a claim upon which relief 
could be granted. United States v. Yonkers Board of Education, 594

-5L-



F.Supp. 466 (S.D.N.Y. 1984).

2/ See Yonkers Board of Education v. United States Department
of Education, 80 Civ. 6658 (LBS), slip op. at 4-5 (S.D.N.Y. Dec. 1, 
1980) .

3/ See Transcript of Proceedings May 15, 1984, at 13,19.

4/ A list of the subsidized housing projects and a map
depicting their location appear as Appendix A to this Opinion. It 
should be noted that one of the projects. Seven Pines, is located 
across the street from the group of census tracts that are 
generally acknowledged to constitute Southwest Yonkers —  namely, 
census tracts 1-6 and 10-13, or (for the years from 1960 on) their 
subdivided equivalents. Thus, strictly speaking. Seven Pines is 
just across the northern border of Southwest Yonkers. However, as 
acknowledged by the City's own expert witness in urban planning, 
the project is, as a matter of urban topography, "as much or more 
related to the area to the south," Tr. 10,815-16 (Portman), and it 
accordingly is included in this Opinion as one of the thirty-six 
projects located in Southwest Yonkers. See also Tr. 402 
(Davidoff).

5/ Since 1982, at least three additional projects have been
approved and put into development in Yonkers. Two are in Southwest 
Yonkers: the conversion of a closed school on Hamilton Avenue into 
an 88-unit subsidized housing complex, and the construction of a 
55-unit project on Willow Street. The remaining 45-unit project is 
on Palmer Road in East Yonkers (the first East side project 
approved since 1963). All three projects are senior citizen 
projects.

When those units are added to the existing total, the 
Southwest will contain 6,787, or 97.1%, of the City's 6,988 
subsidized housing units.

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6/ The term "minority," as defined in plaintiffs' respective
complaints and in current census data, means those who are black or 
hispanic. Prior to 1970, the term "minority" as used in census 
data also included Asians and Indian-Americans and excluded "white 
hispanics," Tr. 122-24 (Davidoff); 11,947 (Armor), but at least 
with respect to the case before us, the discrepancy appears to have 
little or no significance. See fn. 63 infra.

7/ Census tract 7 is also the tract which contains Seven Pines,
a 300-unit project for families on the northern border of Southwest 
Yonkers. See fn 4 supra.

Q/ The City contends that Yonkers cannot be characterized as
highly segregated since, according to one commonly used index of 
segregation, Yonkers compares favorably to most other major urban 
cities. The index in question, however, measures only the level of 
integration within individual census blocks and thus is a highly 
misleading measure when, as in Yonkers, the percentage of 
minorities among the general population is relatively low, but most 
of the blocks in which a significant number of minorities live are 
heavily clustered in one or two areas of the city. See Tr. 416-19; 
422 (Davidoff) . The figures described above preclude any serious 
argument about the extreme degree of segregation that exists in 
Yonkers today.

9/ Section 804(a) of the Fair Housing Act prohibits practices
which "make unavailable or deny ... a dwelling to any person 
because of race, color, religion, sex, or national origin." 42 
U.S.C. S 3604(a). In keeping with the broad purposes of the Fair 
Housing Act, S 804(a) has been construed to reach "every practice 
which has the effect of making housing more difficult to obtain on 
prohibited grounds." United States v. City of Parma, supra, 494 
F. Supp. at 1053 (citing cases).

-



Section 813 of the Act authorizes the Attorney General to 
file suit when he has

reasonable cause to believe that any person or 
group of persons is engaged in a pattern or 
practice of resistance to the full enjoyment of 
any of the rights granted by [the Act], or that 
any group of persons has been denied any of the 
rights granted by [the Act] and such denial 
raises an issue of general public importance • « • •

42 U.S.C. § 3613. The Attorney General's determinations of reason­
able cause and general public importance are not reviewable. See 
United States v. City of Parma> supra, 494 F.Supp. at 1095 n.64. In 
addition, both the City of Yonkers and the CDA are "persons" within 
the meaning of 42 U.S.C. S 3613. See United States v. City of Black 
Jack, Missouri, 508 F.2d 1179, 1183-84 (8th Cir. 1974), cert.
denied, 422 U.S.C. 1042 (1975). Thus, jurisdiction is proper under 
42 U.S.C. S 3613.ISuits by private persons are authorized by § 812 of the Act. 
42 U.S.C. S 3612; see also Havens Realty Corp. v. Coleman, 455 U.S. 
363, 381 n.23 (1982).

10/ Although both the United States and Plaintiff-Intervenors
allege in their respective complaints that the housing practices of 
the City violate the Constitution as well as the Fair Housing Act, 
subsequent filings by the United States, including its proposed 
conclusions of law, refer only to violations of the Fair Housing 
Act. In light of the government's apparent abandonment of its 
constitutional claim with respect to the housing portion of the 
case, and the apparent lack of any significant distinction (at 
least on the facts of this case) between the constitutional and 
statutory claims, see fn. 71 infra, we need not reach the complex 
question of whether the government in fact has standing to raise a 
claim of housing discrimination that is based upon the fourteenth 
amendment to the Constitution. Cf. SCHOOLS VI.A.2 infra 
(discussing the issue as it relates to a claim of segregation in 
schools).

-5-



Plaintiff-intervenors' equal protection claim is cognizable 
as an alleged violation of 42 U.S.C. § 1983, Turpin v. Mailet, 591 
F.2d 426, 427 (2d Cir. 1979) (en banc) (per curiam), cert, denied, 
449 U.S. 1016 (1980), and jurisdiction is proper under 28 U.S.C. § 
1343(3) and (4). Plaintiff-intervenors' identical claim under the 
thirteenth amendment is dismissed, however, since the practices 
challenged do not involve actual conditions of slavery or involun­
tary servitude. See The Alma Society, Inc, v. Mellon, 601 F.2d 
1225, 1236-38 (2d Cir.) cert, denied, 444 U.S. 995 (1979).

11/ While a showing of discriminatory effect can establish a
pr ima facie case of a Fair Housing Act violation, it is not 
sufficient to entitle the plaintiff to relief unless the defendant 
has offered no race-neutral justification for its action. See
Robinson v. 12 Lofts Realty, 610 F.2d 1032, 1036-40 (2d Cir.
1979). Once, as here, a justification has been offered, at least
some level of inquiry into the defendant's intent is always
required. See fn 12 infra.

12/ With respect to claims brought under the Constitution, the
Court's inquiry is ended if it finds that the plaintiff has failed 
to sustain its burden of proving discriminatory intent. Arlington 
Heights I, supra, 429 U.S. at 270-71. With respect to the Fair 
Housing Act, however, most courts that have considered the question 
have held that in view of the broad purposes of the Act, and the 
difficulty of proving intent, relief may be appropriate in some 
cases even when discriminatory intent has not been positively 
established. See Robinson v. 12 Lofts Realty, supra, 610 F.2d at 
1036-38 (citing cases) .

The leading case in this regard is Metropolitan Housing 
Development Corp. v. Village of Arlington Heights, 558 F.2d 1283 
(7th Cir. 1977), cert denied, 434 U.S. 1025 (1978) ("Arlington
Heights II") , in which the Seventh Circuit identified four factors 
to be considered in determining whether the relief requested is 
warranted under the Fair Housing Act. Those factors are: (1) the
degree of discriminatory effect; (2) whether there is at least some

- (o -



evidence of discriminatory intent; (3) the defendant's interest in 
taking the challenged action; and (4) whether the remedy sought 
would compel the defendant to affirmatively provide housing for 
minorities or merely restrain the defendant from interfering with 
the efforts of others to do so. 558 F.2d at 1290-93. Clearly, the 
first three factors are merely a "relaxed" version of the Arlington 
Heights I intent inquiry, cf. Stingley v. City of Lincoln Park, 
429 F.Supp. 1379, 1389 (E.D. Mich. 1977), that is justified by the 
fourth factor —  the limited nature of the remedy sought.

In light of the strength of the evidence of intent in the 
case before us, it is unnecessary to reach the question whether 
entitlement to the broad remedial measures sought by plaintiffs 
here could be established under the relaxed "effects" standard set 
forth in Arlington Heights II.

13/ Prior tou 1969, the City Council was called the Common
Council. For the sake of simplicity, however, it is identified 
throughout this Opinion as the City Council.

14/ "Public housing" is one form of "subsidized housing" —  that
is, housing in which federal, state, or local funds are used in 
some fashion to reduce the rental rate (or, less frequently, the 
purchase price) of housing units for qualified families or 
individuals. Public housing was the predominant form of subsidized 
housing in Yonkers until the mid to late 1960's.

15/ The eleven sites were: Hawthorne Avenue, Prescott Street,
Prescott Field, Sullivan Oval, the Waring site, and the Jefferson- 
Riverdale (or "Stage I") urban renewal area (all in Southwest 
Yonkers); Boyce * Thompson and Frederic Street (in Northeast 
Yonkers)^ and Raybrook Road, Midland Avenue, and Coyne Park (in East 
Yonkers). GX 1058; 1059.

16/ The other five were the two sites in Northwest Yonkers and
three of the Southwest Yonkers sites; Hawthorne Avenue, Prescott 
Field, and Sullivan Oval. See generally GX 1058; 1059.

O '



17/ The third site (Prescott Street) was withdrawn almost
immediately after its proposal by the MHA and replaced with nearby 
Prescott Field, which, as noted above, was among the eight sites 
that prompted community opposition.

18/ While it is true, as the City notes, that the Council had
previously indicated some disfavor with the State's proposed 
arterial plan, the fact remains that its own planners still 
strongly supported the plan and strongly urged the City not to 
foreclose it by constructing housing on the Western Avenue and 
School Street sites. C-50; GX 1063.8; 1063.17; Tr. 9621-24 
(Pistone).

19/ The 48-unit Hall Court opened on the old School 1 site in
1962; the 108-unit Loehr Court opened that same year on Western 
Avenue; and the 278-unit Calgano Homes opened on School Street in 
1964. C-1700.

20/ The original plans for the Garden Street site went forward,
however, and the 300-unit Walsh Houses opened in 1967. C-1700.

21/ The East Yonkers sites were Martin Ray Place, Kingston
Avenue, Boyd Place/Bronxville Road, and Midland at Yonkers Avenue. 
The Southwest Yonkers sites were Center Place, Orchard Street, 
Ashburton Avenue at Seymour Street, and Riverdale Avenue at
Highland. Id.

22/ YURA was organized in 1964 as a semiautonomous agency with
the power to plan, undertake, and effectuate urban renewal
projects, subject to the approval of the City Council, and it
remained in operation until 1971. YURA was governed by a five- 
member board, which, pursuant to statutory requirement, consisted 
of the City Manager, the Mayor, the Corporation Counsel, the City 
Comptroller, and the City Planning Director.

In 1971, YURA was redesignated the Community Development
Agency (CDA), and its governing board was expanded to include two



City residents appointed by the Mayor with the advice and consent 
of the City Council.

23/ Four of the sites were in East Yonkers; Bronx River
Road/Crescent Place; Bronx River Road/Louisiana Avenue (the 
Steuber's Florist site); Texas/Georgia Avenues; and Sweetfield 
Circle. The remaining eight were in Southwest Yonkers; 
Palisade/Carlisle; Stanley/Riverdale; Culver Street; the Old Car 
Barn; Garfield/Fillmore (Prescott Street); Hawthorne/Riverdale; 
Croton Terrace; and Orchard Street.

24/ The three sites not submitted from the joint list were two
in Southwest Yonkers (Culver Street and Orchard Street) and one in 
East Yonkers (Bronx River Road/Louisiana Avenue). Added to the 
list were two additional sites on Croton Terrace and
Garfield/Fillmore Streets in Southwest Yonkers.

25/ The nine sites are; Palisade Avenue (now the site of
Schlobohm Houses); the Jefferson-Riverdale urban renewal area 
(approved for public housing in 1953 but later withdrawn from 
consideration by the MHA and now the site of the Mitchell-Lama 
project Phillipse Towers); School Street (now the site of Calgano 
Homes); the old School 1 site (now the site of Hall Court); Martin 
Ray Place (now the site of Curran Court) ; Ashburton/Seymour (now 
the site of the Kristensen Houses); Garden Street (now the site of 
Walsh Houses); and the two sites on Croton Terrace (rejected by HUD 
in 1967).

26/ The other two sites proposed in the report (Park Hill/Van
Cortlandt Park Avenues and Sullivan Oval) were likewise in 
overwhelmingly white and unblighted areas and likewise were never 
developed with public housing. Both sites encountered strong 
community opposition, and they advanced no farther than the 
Planning Board's recommendation. See GX 1058; 1059; see also
HOUSING II.B supra.

The 1950 report speaks generally of the desirability of



"coordinating" public housing construction with slum clearance and 
urban renewal but clearly does not equate such coordination with 
building only in or around downtown Southwest Yonkers. Nor does 
the evidence suggest that further study of planning principles or 
federal policy led the Planning Department to subsequently adopt 
that view. Indeed, as noted earlier, the minutes of a 1962 
Planning Board meeting quote Planning Director Pistone as 
advocating dispersion of subsidized housing and being told that his 
view was "interesting" but politically impractical —  following 
which exchange, the Planning Board voted to reverse a prior 
disapproval of a further addition of subsidized housing to the 
downtown area. GX 1064.19; see also HOUSING III.C supra.

27/ The City has noted that the grounds specified in HDD's final
letter rejecting the 1967 sites did not mention (as did its 
preliminary letter on the Hawthorne/Riverdale site) the problem of 
"potential concentration of minority groups." Compare GX 1078.163 
with 1078.94. Instead, the grounds specified by HUD for the
rejection were merely that acquisition costs were too high (causing 
the projects to be either economically infeasible or unacceptably 
dense) , and that the sites (all of which were occupied) promised to 
exacerbate rather than alleviate relocation problems. GX 1078.163.

However, the City has cited no evidence which suggests that 
City officials interpreted the omission as a retreat from HDD's 
previous indication that at least some dispersion of subsidized 
housing was called for in order to avoid concentrating minorities 
in one area of the City.

28/ The City has repeatedly emphasized with respect to various
sites that they were not in areas that were "predominantly 
minority." That observation means little, however, with respect to 
a City in which, as late as 1960, the citywide minority population 
was only 4.5% and only a handful of census blocks outside of Runyon 
Heights were "predominantly" (i.e., more than 50%) minority. GX 
1225.1.

\o-



A series of maps introduced by plaintiffs, which show 
minority concentration on a block by block basis, vividly 
illustrates the extreme degree to which the sites selected for 
subsidized housing tended to be in the more heavily minority areas 
of the City. GX 1225.41; 1225.42; 1225.44; 1225.45.

29/ The plaintiffs have included Cottage Place Gardens, as well
as Mulford Gardens, the City's first public housing project (the 
site for which was selected in 1939) as part of their allegations 
of a pattern and practice of racial discrimination by the City in 
the siting of subsidized housing in Yonkers. With respect to 
Mulford Gardens, however, there is virtually no evidence before us 
regarding the circumstances of its site selection, and thus the 
City's actions in that regard do not form part of the basis upon 
which we find the City to be liable for racial discrimination.

Nor, although we consider the question to be a closer one, 
do we believe it proper to view Cottage Place Gardens as the 
starting point of the pattern of discriminatory actions that so 
clearly followed. The City's actions concerning Cottage Place 
Gardens are significantly isolated in time, and distinguishable in 
circumstances, from the pattern that later arose. Indeed, with 
respect to the former point, it bears particular emphasis that the 
City appears to have abandoned the overt designation of "Negro 
housing" as early as 1941 and, so far as the record before us 
indicates, made no attempt to maintain a segregated occupancy in 
either Mulford Gardens or Cottage Place Gardens. See generally GX 
1052; 1053. The initial circumstances surrounding the construction 
of Cottage Place Gardens seem to us to be more an isolated vestige 
of an earlier and discredited era, than a part of the pattern and 
practice of actions for which the City may today be held liable.

Nonetheless, as we have noted, the circumstances surrounding 
the construction of Cottage Place Gardens remain relevant for the 
light they shed on subsequent actions taken by the City. And the 
location of Cottage Place Gardens remains relevant to any 
calculation of the effect of the City's subsequent actions. 
Indeed, in view of that fact, the question of whether Cottage Place



Gardens can be properly included in the basis of the City's 
liability may be chiefly an academic one. See fn. J 2 L  infra.

30/ Indeedr with respect to the design and management of the
projects, the City's involvement can be characterized not 
merely as lending a significant degree of assistance, but also 
as exercising a significant degree of control. See, e.g., GX 
1079.24; 1079.30; 1079.52; 1082.32; 1083.11; 1083.32; 1084.5; 
Webdale Dept. 186-88.

31/ The City has sought to dismiss Walsh's campaign against
Seven Pines as merely partisan politics —  the efforts of a 
newly elected Republican to embarrass the Democratic 
administration. However, to suggest that party affiliation 
played a role in the controversy in no way diminishes the 
significance of Walsh's choice of political capital.

32/ That encouragement began with the rejection of a site
proposed by the MHA for public housing in a heavily minority 
area of downtown Southwest Yonkers. The ground for rejection 
was publicly reported to be that the project would add to the 
area's racial imbalance; it was also reported thotHUD had told 
the City to look for sites in Northern and Eastern Yonkers. 
GX 1094.36; see generally GX 1094. One month later, the City 
Council approved the first-round Memorandum of Understanding 
with the UDC for the construction of 1,200 units of subsidized 
housing in and around the downtown area. See HOUSING IV.C.2 
supra.

33/ The Administrator of the Department of Development has
responsibility for coordinating and administering community 
planning and development functions, and for overseeing the 
operations of the three offices within the Department —  the 
Planning Bureau (formerly the Planning Department), the CDA, 
and the Bureau of Housing and Buildings.



Prior to joining the City's Department of Development, 
Yulish was Deputy Director of Operations in HUD's New York 
Area Office. In function, he replaced Walter Webdale, who, in 
turn, moved to the UDC in 1971.

34/ Former Councilman Hanney testified that he could not
recall meeting with Yulish to discuss subsidized housing 
sites. Tr. 10,073-74, 10,115-16.

35/ The Robin Hill Day Camp site was considered at least
three other times between 1970 and 1972 as a site for 
subsidized housing —  twice by the UDC (in June of 1970 and 
April of 1971) and once by the MHA in December of 1970 (in 
response to a HUD directive to consider scattered sites). The 
MHA proposed the site to the City Council and then withdrew it 
without explanation a few days later. The UDC prepared a 
draft memorandum of understanding for the Robin Hill site, but 
the proposal failed to go forward for reasons that are unclear 
from the record. Former UDC official Gerald Lenaz had a vague 
recollection of the site as "developable" but presenting 
acquisition problems. Lenaz Dep. 29, 34, 153-155; GX 1090.55; 
1090.56; 1090.58; 1097.22; 1097.25; 1098.15

36/ The City also challenges the characterization of the
opposition to subsidized housing in East and Northwest Yonkers 
as racially influenced, contending that the opposition in fact 
reflected nothing more than legitimate race-neutral concerns 
about density, traffic, overcrowding, and zoning. As 
indicated earlier, however, testimony of the City's own former 
officials and one who worked closely with them clearly 
suggests otherwise. See HOUSING IV.B. supra.

In addition, we note that former Mayor Del Bello 
specifically adddressed whether the opposition to subsidized 
housing that existed in certain parts of Yonkers could be 
characterized as simply opposition to high density, and he 
testified that it could not. Tr. 1421-22. Del Bello



acknowledged that arguments against high density construction 
arose in "just about every zoning case ... dealing with
residential development" whether subsidized or nonsubsidized. 
Id. at 1422. He went on to observe, however, that there were 
often modifications that could be made with respect to
nonsubsidized housing to make it acceptable to area residents, 
while with respect to subsidized housing "it was far more
difficult" —  a difference he ascribed to the "other factors 
that pertain, such as low income and minorities." Id.

Del Bello's assessment is well supported by the record, 
which shows that during the 1960's, and through the mid-
1970's, there was steady constrtiction of multifamily housing 
in East Yonkers, GX 1310 (more than 2,800 units in buildings 
of 50 units or more); that construction often occurred after 
zoning changes or vacancies had been granted, see, e.g., P-I 
185, Tr. 9824-26 (Pistone); and that some of the sites were 
ones for which subsidized housing had previously been proposed 
or discussed. See, e.g., Tr. 9681, 9685, 9826 (Pistone); 
2773-74 (Arcaro) GX 1225.48; 1225.49. Indeed, in at least one 
case during this period, consideration of the site for 
subsidized housing appears to have facilitated the zoning 
change needed to allow construction of conventional 
multifamily housing. See HOUSING IV.C.5 supra (the Robin Hill 
Day Camp site).

37/ Instead, the City has introduced evidence tending to show
that it was HDD's policy to give priority in funding to 
housing projects that were connected with another HUD-assisted 
program. C-1564; C-1565; C-1573. However, since there was no 
shortage of available funds during these years, this 
theoretical priority appears to have had no practical 
significance, Tr. 5805-06 (Lapaula). Nor has the City pointed 
to any evidence that the priority influenced its site 
selections.



38/ Webdale did not contend that HUD required or encouraged
the City to reach an agreement with the UDC to build 800 units 
of housing on the Riverview site. Indeed, no testimony by him 
was offered on the decision to double the number of units 
planned for the site. The only witness who offered any 
explanation for the change was Planning Director Philip 
Pistone, who suggested that the increase was brought about by 
City Manager Scher and Walter Webdale, the latter of whom 
believed the site should be used for relocation housing. Tr. 
9878-79.

39/ Nor, of course, is consent a justification for acting
with segregative intent. We raise the issue solely to assess 
the City's suggestion that it was responding to legitimate 
community concerns about the destruction of existing 
neighborhoods.

40/ The UDC appears to have been operating under a similar
presumption, at least during site selection for the first- 
round of UDC projects. Gerald Lenaz, a project manager for 
the UDC at thofctime, testified that during the extremely small 
amount of time he had to look at sites before the first
Memorandum of Understanding was signed in July of 1970, he 
basically came to the conclusion that all of East and
Northwest were, as a general proposition', not feasible for
subsidized housing for reasons of site configuration and
topography. Lenaz Dep. 18, 37, 38, 136, 196. •

41/ Webdale testified that he simply could not recall why the
other sites were rejected. Id. The record as a whole is 
equally vague.

42/ Former UDC official Gerald Lenaz acknowledged that the
technique of combining a small East side project with a larger 
Southwest project would work financially, but suggested that 
joint management of the two projects would be difficult since



the proper "community tenant association rapport" could not be 
achieved. Lenaz Dep. 215-16. The argument is decidedly less 
than compelling.

43/ The City has cited a December, 1971 letter from Morton
Yulish to HUD as evidence that high land costs in East Yonkers 
posed a significant obstacle to the construction of high land 
costs. C-633. However, the letter merely stresses the need 
for h u d 's willingness to provide rapid financial assistance 
should a site become available since

it would be embarrassing to all concerned if we 
had an opportunity to reverse a trend and let 
it fall by the wayside because the bureaucracy 
stood in our way or funds were not made 
available.

Id. Such a statement scarcely suggests that high land costs 
had been the chief obstacle to the development of subsidized 
housing in East Yonkers. And an earlier part of the letter, 
which has been quoted above, see HOUSING IV.C.5 supra, makes 
clear that it was not. The letter is the same one in which 
Yulish advised HUD that the site would have to be in "an area 
with surmountable political obstacles." Id.

44/ The City contends that it made a race-neutral and
legitimate decision to use the Section 23 program to enable 
rehabilitation of buildings in Southeast Yonkers. At minimum, 
however, such a use represents another example of the City's 
consistent choice of the segregative alternative in favor of 
the integrative with respect to subsidized housing. Moreover, 
in light of the City's representation to HUD about its use of 
the program, and its recognition of the program's intended 
purpose of encouraging dispersal of subsidized housing, the 
City's choice would appear to be a fully conscious one.

45/ The eighth project is Highland Terrace, a 96-unit
cooperative built in 1968 and granted a 90% tax abatement on 
the condition that ten of its units be leased to the City for 
relocation housing —  a quid pro quo the City apparently never

- . \ ( p



utilized. C-456; GX 1105.11. The racial composition of 
Highland Terrace cannot be established from the record since 
the figures offered in evidence appear to relate to a building 
that is not at issue in this case. C-1650.

46/ The City has emphasized that most of the sites approved
during this period are specifically listed in the CRP. This 
is scarcely suprising, however, since by the time the CRP was 
published in June of 1970, the City was already involved in 
the planning of fifteen of the period's seventeen projects. 
(The remaining two —  Parkledge and Cromwell Towers —  are not 
listed in the CRP.)

Clearly, the relevance of the CRP lies not in the fact 
that it summarized and sought to explain the City's current 
urban renewal and subsidized housing activities, but rather in 
whatever role its principal architect, Patrick Kane, had in 
guiding those activities, and whether that guidance (if any) 
suggests that the confinement of subsidized housing to 
Southwest Yonkers during this period occurred for reasons 
unrelated to racially influenced opposition to the placement 
of the housing elsewhere.

47/ At least on one significant point, the City appears to
have rejected the advice of Kane, who testified that Riverview 
I and II were "not consistent with the objections of the CRP" 
since they contained only subsidized housing rather than the 
combination of market rate and subsidized housing that would 
be required to attract a desirable mix of tenants. Tr. 8773- 
74, 8863.

48/ The only evidence of discussion of these issues among
City officials is a conversation vaguely recalled by Planning 
Director Philip Pistone between himself and City Manager 
Scher, which occurred at some point before final approval of 
the Memorandum of Understanding. Tr. 9884-85, 10,022.
According to Pistone, Scher asked him whether he thought

M l '



Riverview was likely to be successful in attracting middle- 
income whites back to that area of Yonkers. Pistone replied 
that once the families left, they were unlikely to return. 
Scher agreed, but said the City should try nonetheless. Id.

49/ On April 30, 1976 (while the Year I application was still
pending) , the City submitted its Year II application for an 
additional 100 certificates for senior citizens, GX 1104.29. 
The application was approved in September of that year. C- 
1299. In April of 1977, the City submitted its Year III 
application for an additional 45 certificates for senior 
citizens; none was awarded. C-1307.

50/ The number of family certificates awarded but unused may
in fact be even higher. Compare Tr. 7332-35 (Yodice) with C- 
1334.

 ̂o51/ The City has offered evidence of advertising flyers sent
to employers and community organizations in various parts of 
Yonkers. See C-1327 through C-1333. However, in light of the 
testimony of Yvonne Nargi, who served as a housing specialist 
for the Yonkers Commission on Human Rights from 1981 to 1983, 
such efforts can hardly be characterized as an outreach likely 
to be successful. Nargi testified that East Yonkers landlords 
were reluctant to accept Section 8 Existing Certificates 
unless "mandated" to do so —  a reluctance she ascribed to 
their feeling that "the element would be completely different 
in that community." Tr. 8096-97.

52/ Those projects are the Lane Hill Apartments (109 units);
Monastery Manor (146 units) (initially a Section 8 proposal 
and eventually funded under another federal program); St. 
Casimir's (264 units); and Kubasek-Trinity Manor (130 units). 
See Appendix A. On the planning objections raised to St. 
Casimir's and Monastery Manor, see GX 1139; 1100).

-15L-



Ironically, the would-be developer of the Highland Avenue 
site apparently lost interest in the site after HUD's initial 
rebuff of his proposal. The site was proposed for development 
again in 1978, however, triggering another struggle between 
the City's planners and the City Council, with the same 
outcome. By 1978, when the new proposal was made, the City's 
planners had regained some of the territory lost in the Year 
II HAP changes. See Tr. 2927-28 (Arcaro). The current (i.e.. 
Year IV HAP) no longer included a listing of Southwest sites 
and even specifically excluded (on grounds of 
overconcentration of subsidized housing) the census tract in 
which the Highland Avenue site was located. C-1089. In the 
City's section 213(a) review of the proposal, filed with HUD 
in August of 1978, the City Manager urged "most strongly" that 
the project be disapproved as inconsistent with the City's HAP 
and "detrimental to the physical and financial integrity" of 
the area. GX 1112.17. Like his predecessor, however, the 
developer successful! appealed to Mayor Martinelli for 
support. GX 1112.19; 1112.21. In November, the City Manager 
wrote to HUD withdrawing —  without explanation —  the City's 
objections to the proposal. GX 1112.10. In July of 1979, the 
City Manager wrote to HUD again, affirming the City's support 
for the project, and declaring it to be consistent with the 
numerical goals of the City's HAP. GX 1112.25. (The
project's inconsistency with theHAP's locational controls was 
not mentioned.) The present status of the proposal is 
unclear.

53/ And indeed, only one other east side proposal appears to
have been made for Section 8 senior citizen housing. The 
proposal was summarily rejected by the City, ostensibly for 
physical planning reasons, but in fact chiefly out of concern 
that the developer's primary interest in the proposal was a 
tax deduction. See GX 1115.14; Tr. 2959-60 3059-63 (Arcaro).



54/ The City suggests that the special facilities needed by
senior citizens (such as ramps and scald guards on the 
faucets) can be more economically provided through new 
construction than through rehabilitation of an existing 
structure. New construction is also more likely to be
feasible, according to the City, when the units involved are 
studio or one-bedroom units rather than the multi-bedroom 
units needed for families.

55/ The City contends that its additional designation of
Census Tract 22.02 in East Yonkers as appropriate for 
substantial rehabilitation, and its 1978 application for that 
same area to be designated a "Neighborhood Strategy Area" 
(under a HUD program that makes funding available for new 
construction and rehabilitation in areas targeted by the 
City), are concrete examples of its efforts to provide 
subsidized housing opportunities for minorities in East 
Yonkers, and are efforts that failed only because no building 
owners applied for the substantial rehabilitation funds and 
because HUD turned down the NSA application.

However, substantial rehabilitation is unlikely to have 
an integrative effect on a neighborhood unless the buildings 
to be rehabilitated are unoccupied. In addition, in light of 
the City's actions with respect to the east side preference 
stated in HAP for new construction for senior citizens, there 
is no basis for assuming that the City would have supported a 
proposal to rehabilitate a vacant building in Census Tract 
22.02 either under the general substantial rehabilitation 
program or the NSA program.

56/ The City contends that the City Council's opposition to
Salisbury Gardens cannot be attributed to the City since the 
City Manager is the officer authorized to speak for the City 
in section 213(a) reviews and since there is no evidence that 
he complied with the City Council's directive to withdraw the 
City's favorable section 213(a) review. In addition, the City

- 9X)-



contends that it cannot in any event be held liable for that 
opposition since the proposal was ultimately defeated by a 
lack of funding rather than the City Council's opposition to 
it. Both contentions are without merit.

The opposition expressed to the proposal was not 
expressed by an isolated City official, but by formal 
resolution of its governing legislative body. Nor was the 
City Council's action inconsequentialjif only in its effect on 
the likelihood that future proposals would be made for east 
side sites when Section 8 or other federal funds again became 
available. Cf. HOUSING III.C.2 and IV.C supra.

57/ At trial. Councilman Cipriani maintained that the role of
the committee was merely advisory, and that he had never 
suggested that the Council would necessarily adhere to the 
community's wishes. However, his prior statements under oath 
decidedly suggest otherwise. At his deposition in preparation 

trial, Cipriani testified that the committee was chosen 
so that the decision wouldn't be in the hands of the Council, 
and that choosing only area residents was seen as "a 
neighborhood idea —  like children going to school where they 
live." Tr. 7961-65.

58/ Councilmember Cipriani apparently was referring to a
meeting he had sometime between late 1980 and early 1981 with 
Maxwell Speiser, a developer who had expressed an interest in 
converting School 4 into subsidized housing, and who had been 
brought to Ward Councilman Cipriani by Emmett Burke of the 
MHA. Tr. 7919-21, 7953-57 (Cipriani); Speiser Dep. 72-79. 
Cirprlani testified at trial that the proposal was for senior 
citizen housing, that he had responded favorably, and that he 
had held a meeting with area residents on the subject. Tr. 
7919-21, 7953-57. Maxwell Speiser testified, however, that 
his expression of interest hadn't ben limited to senior 
citizen housing, and that Cipriani had merely told him the



site was unavailable since it was still being held by the 
Board of Education. Speiser Dep, 72-79.

59/ The presence of several categories of evidence remaining
in the record but not reviewed above should be noted. The 
plaintiffs have offered a considerable quantity of evidence 
relating to the City's alleged nonsupport of fair housing laws 
and principles. In addition, both the City and the plaintiffs 
have offered evidence on the City's alleged compliance or non- 
compliance with the 1980 contract conditions and subsequent 
"contract comments". Finally, the City has argued that it has 
cooperated in the Consent Decree approved by this Court 
between HUD and plaintiff-intervenor and that its cooperation 
is an indication of its good faith and nondiscriminatory 
intent.

We have found nothing in that evidence which is 
inconsistent with the pattern of discriminatory actions 
reviewed above. Nor, in light of the evidentiary strength of 
that pattern, do we consider it necessary to review evidence 
that further reinforces it.

. 0 ^



60/ Nor has the City attempted to argue this point. Instead,
it has merely suggested that circumstances beyond its control 
(such as the unsuitability of sites or the unavailability of 
funds) prevented the construction of projects in East and 
Northwest Yonkers. That suggestion, as our foregoing review 
of the evidence has made clear, is entirely at variance with 
the record.

61/ There is also evidence that the effect of the City's
actions in this regard was exacerbated by its decidedly less 
than vigorous support of fair housing laws. See, e.g., Tr. 
1950-95 (Trommer); 8093-8105, 8112-13 (Nargi) ; 10,580-83
(Yost); GX 1182.

62/ The percentage represented by the Southwest alone is 86%.
GX 1225.1.

63/ Plaintiffs have suggested that the small increase in
minority population shown for East and Northwest Yonkers 
between 1960 and 1980 (from 2.8% to 5.8%) may in fact be 
smaller still due to the inclusion in intervening years of 
"white hispanics" in the figures for minorit:ies. See fn. 6 
supra. The City, in turn, has suggested that this occurrence 
may also mean that the massive decline in the white population 
in Southwest Yonkers during those same years was slightly less 
massive. However, neither party has offered evidence to show 
that the adjusted figures (if they could be reconstrudfed) 
would likely be significantly different.

64/ The City also cites factors such as the failure of White
Plains to provide adequate relocation housing for those 
displaced by urban renewal and the more liberal social service 
and welfare policies followed by Westchester County as 
compared with New York City. But these factors merely explain 
why more minorities may have moved to Yonkers generally, not 
why they moved to the Southwest in particular. The-City has



also cited, without elaboration, testimony offered in passing 
to the effect that a higher birth rate prevails among 
minorities. Such a factor may indeed have contributed to the 
rise in the Southwest's rise in minority concentration but in 
no respect suggests that subsidized housing development did 
not likewise do so.

65/ The City has criticized Dr. Pearce's analysis as
inconclusive on the ground that any number of other factors 
might have accounted for that pattern. But such a criticism 
is unpersuasive unless accompanied by some reason to believe 
that the apparent pattern is, in fact, a false one. The City 
has suggested no such reason, nor do we perceive any.

66/ The City has suggested that its demonstrated difficulty
in attracting whites to various of the Southwest projects is 
attributable to the "narrow band" effect of the upper and 
lower income units on S 236 projects and thus provides no 
evidence that the concentration of subsidized housing in the 
Southwest stigmatized it as a minority area. However, while 
there is evidence to suggest that the "narrow band" effect did 
decrease the pool of eligible white applicants, it is clear 
from the record that it was not the only source of the City's 
difficulties. See, e.g., Tr. 10,158-59 (Bogdanoff)
(describing the "continuing hesitancy" of whites in Yonkers to 
move into subsidized housing).

67/ Although there are nominally two defendants in the
housing portion of this case —  the City of Yonkers and the 
CDA —  they have mounted a collective defense, and their 
liability will be discussed collectively.

68/ Nor, in the context of the record as a whole, can this
uniform community opposition to subsidized housing be 
persuasively explained as simply race-neutral opposition to 
any increases in the area's density. In this regard. Citizens



Committee for Faraday Wood v. Lindsay, 362 F.Supp. 651 
(S.D.N.Y. 1973), aff'd, 507 F.2d 1065 (2d Cir. 1974), cert. 
denied, 421 U.S. 948 (1975), upon which the City relies, is 
clearly distinguishable. Faraday Wood inyolved opposition to 
a single project, not a pattern of opposition coinciding with 
the steady construction of unsubsidized multifamily buildings 
in the area. In addition, the project at issue in Faraday 
Wood was primarily middle income, an income range in which 
minorities are not disproportionately represented, and thus 
the project's opposition and subsequent abandonment were held 
not to warrant the careful scrutiny traditionally given to 
actions involving low-income housing. 507 F.2d at 1068-69; 
see also United States v. City of Parma, supra, 494 F.Supp. 
at 1099 n.65. Finally, the court in Faraday Wood found there 
to be little or no other evidence that the opposition to the 
project was racially motivated.

■ V I t ,  . .  ■ ---------. ,

69/ In support^ the Cft^" has cited- two cases involving
challenges to a single action by a single body of officials. 
See United States v. City of Birmingham, supra; Robinson v. 
12 Lofts Realty Co., 610 F.2d 1032 (2d Cir. 1979). However, 
although both courts engaged in some vote tallying, neither in 
any way suggested that such a procedure was the only means of 
establishing the collective intent of i voting body. Nor, it 
should be added, did'either require a showing that a majority 
of the officials were influenced by racial discrimination. In 
City of Birmingham, the court defined the intent of a city as 
the intent of a "significant percentage of those responsible 
for the City's conduct." 538 F.Supp. at 828. In Robinson, 
the court stated that a collective vote was discriminatory if 
any of the individual votes needed for a majority was based on 
racial considerations. 610 F.2d at 1039-40. Such formula­
tions merely elaborate the general rule that plaintiffs must 
prove that discriminatory intent was indeed a factor (although 
not necessarily the sole or even dominant factor) in the 
challenged decisionmaking process, Arlington Heights! supra,



429 U.S. at 265-66. As such, those formulations are fully 
consistent with the approach that has been taken here.

70/ A significant portion of the City's proposed conclusions
of law is devoted to a lengthy review of federal housing 
statutes, regulations, and HUD publications, apparently 
intended, at least in part, to show that a reasonable and 
race-neutral city could have construed national housing policy 
as encouraging confinement of subsidized housing to Southwest 
Yonkers. Since the record clearly suggests, however, that 
this was not in fact how subsidized housing came to be 
confined to the Southwest, the arqumeat is irrelevant.

Nor is the City's review of national housing policy 
persuasive as an attempt to suggest that the City's actions 
are illegal only under recently enunciated standards. None of 
the materials cited by the City suggest, or can in any way be 
read as suggesting, that ‘the^'intentional confinement of 
subsidized housing to particular areas‘ef.a city-in order to 
preserve existing patterns of segregation is permissible.

71/ Strictly speaking, the City's liability under the Fair
Housing Act (the sole basis of the action brought by the 
United States) is limited to that portion of the pattern and 
practice of discrimination which occurred after April 11, 
1968, the effective date of the Act, see 42 U.S.C. § 
3603(a)(1), while its liability under the Cdfistitution (the 
second basis of' Plalntiff-intervenors' action) is premised 
upon the entire pattern and practice. However, the 
distinction appears to have little, if any, practical effect, 
since the measures that will be available and appropriate to 
remedy the effects of the City's discrimination are not likely 
to vary according to whether liability runs from 1950 or from 
1968.

72/ A third issue raised by the City —  the timeliness of
plaintiffs' suit —  can be dismissed without discussion.



Although many of the actions challenged by plaintiffs occurred 
years ago, they are part of a continuing pattern and practice 
of discrimination, and as such they remain subject to suit. 
See, e.q., Havens Realty Corp. v. Coleman, 455 U.S. 363, 380- 
81; United States v. Parma, supra, 661 F.2d at 573. The 
application of laches that has been urged by the City 
(limitation of plaintiffs' case to events that occurred no 
earlier than three years prior to the date on which suit was 
filed) would preclude any effective remedy for a pattern and 
practice of discrimination. The City's argument is without 
precedent and (at least on the facts of this case) wholly 
without merit.

73/ All but one of the cases cited by the City are inapposite
since they are limited to the review of a HUD finding that a 
proposed project complied with .specific statutory or 
regulatory requirements unrelated to the,intent with which a 
site has been selected. See Business Association of
University City v. Landrieu, 660 F.2d 867 (3d Cir. 1981); 
Aertsen v. Landrieu, 637 F.2d 12 .(1st Cir., ,1980); South East 
Chicago Commission v. HUD, 488 F.2d 1119 (7th Cir. 1973); 
Croskey Street Concerned Citizens v. Romney, 459 F.2d 109 (3d 
Cir. 1972) . Only one case cited by the City, Jones v. Tully, 
378 F.Supp. 286 (E.D.N.Y. 1974), aff'd, 510 F.2d 961 (2d Cir. 
1975) (per curiam), also included a claim of.discriminatory 
intent in site selection, and that case contradicts rather 
than supports the City's argument, since the court clearly 
made its own determination that there had been no 
discriminatory intent at work in the site selection, and in no 
respect suggested that the determination was based on any 
presumption arising from HUD's approval of the project. See 
378 F.Supp. at 293.

74/ The City contends that the United States has conceded the
individual legality of each of the site selections and thus 
cannot challenge their collective legality. It is clear,

•9^1'



however, that the United States has made no such concession. 
In saying that it does not contest HUD's approval of any 
individual sites, the United States has said no more than that 
it does not contend either that the sites were illegal under 
statutory or regulatory provisions unrelated to intent (e.g., 
HUD'S site selection criteria) , or that HUD knew or should 
have known any of the site selections to have been influenced 
by segregative intent. Such a statement does not preclude the 
United States from arguing, or this Court from finding, that 
when viewed together, and in the context of the record as a 
whole, the segregative intent underlying the site selections 
(and, hence, their illegality) clearly emerges.

75/ The City's related contention that its actions were legal
because they were in compliance with HUD site selection 
criteria or any^other regulations effective at time of site 
selection is similarly mistaken. Such regulations could not, 
and do not profess to, define the parameters of a city's duty 
not to. discriminate in site selection, .and compliance with 
them is not a safe harbor for those who, in fact, are found to 
have discriminated.

76/ We note in passing the questionable utility of performing
a separate "even if" analysis in a case such as this, 
involving; not simply the isolated dismissal of a public 
employee, cf. Givhan v. Western Line Consolidated School 
District, 439r>.U.S. 410 (1979); Mt. Healthy City School
District Board of Education v. Doyle, 429 U.S. 274 (1977) , but 
a discriminatory pattern and practice involving the acts and 
omissions of governmental entities over a significant period 
of time. This concern is particularly relevant where evidence 
concerning the existence or absence of segregative intent has 
been introduced by all parties and has been considered 
collectively in making our determination of liability. Cf. 
Diaz V. San Jose Unified School District, 612 F.2d 411, 515 
n.l (9th Cir. 1979). To the extent that the "even if"



analysis entails an examination of feasible alternatives to 
the segregative decisions made by the defendants or the 
significance of the non-racial factors allegedly relied upon 
in making those decisions, see Brody-Jones v. Macchiarola, 503 
F.Supp. 1185, 1243 (E.D.N.Y. 1979), we have perforpTaj such an 
examination in rendering our Findings of Fact. Nevertheless, 
we undertake a separate examination if only to underscore our 
conclusion that segregative intent was a motivating factor in 
the acts and omissions that have led to the perpetuation and 
aggravation of housing and school segregation in Yonkers. See 
SCHOOLS VI. infra.

'JR

-



77/ In a number of school desegregation cases in which the issue
of governmental housing discrimination has been raised, courts have 
noted that the relevant housing authorities were not joined as 
parties to the action. See, e.g., Higgins v. Board of Education of 
Grand Rapids, 508 F.2d 779, 789 (6th Cir. 1974); Deal v.
Cincinnati Board of Education, 369 F.2d 55, 60 n.4 (6th Cir,
1966), cert, denied, 389 U.S, 847 (1967); Brody-Jones v.
Macchiarola, 503 F.Supp. 1185, 1236-37 n.27 (E.D.N.Y, 1979);
Bronson v. Board of Education of the City School District of 
Cincinnati, 578 F.Supp. 1091, 1104 (S.D.Ohio 1984).

78/ There is considerable disagreement among the parties
regarding the continued validity of the Second Circuit's school 
desegregation decisions, particularly Hart v. Community School 
Board and Arthur v. Nyguist. In those decisions, the Second 
Circuit cited with approval the foreseeability test for determining 
the existence of segregative intent, Arthur v. Nyguist, supra, 573 
F,2d at 143^ Hart v. Community School Board, supra, 512 F.2d at 51. 
While this test was subsequently disavowed by the Supreme Court in 
Dayton, it is also clear that the Second Circuit's decisions did 
not rest entirely on the foreseeability presumption in upholding 
the district courts' respective findings of segregative intent. In 
Arthur, the Second Circuit described its decision in Hart as 
holding that "foreseeable consequences, while not specifically 
identifiable with intention, can provide evidence for its presence" 
and that "segregative intent could only be inferred in the context 
of an exarainationv o t  alternative policies available to state 
officials." 573 F.2d at 142. Moreover, a careful reading of the 
district and circuit court opinions in Arthur confirms that the 
findings of segregative intent did not rest solely on the foresee- 
abiity presumption but on an exeunination of alternative courses of 
action, the reasons proferred for the school board's segregative 
conduct, and the school board's response to the known segregative 
impact of its policies and practices. 415 F.Supp. at 930 (failure 
to amend language progrctm policy even though board was "obviously 
aware of its segregative impact"); 936 (school districting

1)0



decision is "an example of blatant segregative intent with clear 
segregative results"); 939 (knowing granting of transfers for 
"specious or blatantly discriminatory reasons"); 940-41
(deliberate adherence to segregative optional attendance zone 
policy for which "(n]o rational reason" was found; 942 (adherence 
to segregative screening criteria for vocational schools); 946 
(deliberately segregative staff assignment policy); 948-49
(failure to devise and implement desegregation plan in response to 
state integration order); 429 P.Supp. 206 (liability decision 
reaffirmed upon reconsideration in light of Supreme Court's 
decisions in Austin Independent School District v. United States, 
Washington v. Davis> and Arlington Heights v. Metropolitan Housing 
Development Corp.); 573 P.2d at 143-45 (affirming aforementioned 
findings of intent). In our viewr this mode of analysis is 
consistent with the Supreme Court's subsequent decisions in Dayton 
and Columbus regarding the .relevance of foreseeable segregative 
impact. See Alexander v. Youngstown Board of Education, supra» 675 
P.2d at. 792-93; Berry v. School District of Benton Harbor, 494 
P.Supp. 118, 123 (W.D.Mich. 1980).

79/ Since 1950, the school district has had five
superintendents: Stanley Wynstra (1950-68), Paul Mitchell (1968- 
70), Robert Alioto (1971-75), Joseph Robitaille (1975-78), and Joan 
Raymond (1979-present)

80/ It is important to note that our findings with respect to
the racial segregation of Yonkers public schools and our evaluation 
of evidence concerning the practices and policies governing the 
operation of these schools are based, unless specifically noted, on 
the schools as they existed in 1980 when this lawsuit was 
commenced. Almost five years have passed since that time, during 
which changes in racial balance, program offerings, and educational 
policies or practices have occurred, some of which this Court may 
well be unaware of and thus cannot be reflected in these findings. 
Where post-1980 occurrences have been shown to be relevant insofar 
as they represent a definite and recognizable continuation of a

3f.



previously existing policy or pattern of behavior, these 
occurrences have been discussed in our findings where applicable. 
All other post-1980 occurrences, while relevant to our formulation 
of remedial measures to correct the racial imbalance in the public 
schools, have not been relied upon in our determination of 
liability. United States v. Board of School Commissioners of 
Indianapolis, 474 P.2d 81, 89 (7th Cir.), cert, denied, 413 U.S. 
920 (1973).

81/ The pre-K program originated in a small number of Southwest
Yonkers elementary schools, and was expanded to many of the City's 
elementary schools as a result of a 1973 school reorganization 
plan. GX 64, 114. The program was drastically curtailed as a 
result of the school district's 1976 budget reductions. See 
SCHOOLS IV.A.3.b infra. In 1980-81, the pre-K progreun, operated in 
Schools 9,-18 and 25, enrolled 90 students and was 49% minority. No 
allegations or evidence of unlawful segregation have been presented 
by plaintiffs with^respect to the operation of the pre-K program.

82/ In 1980-81, the Career Center enrolled 103 students and was
62% minority. GX 64. No allegation or evidence of unlawful
segregation has been presented by plaintiffs with respect to the 
operation of the Career Center.

j
83/ "White?..includes Caucasian, Indian'^American, Asian-

American, and any other non-"minority" students. In 1980-81, there 
were 352 Asian/Pacific Island Americans (1.6%), 11 American 
Indian/Alaskan&<- (0.1%), and 13,477 Caucasians and other non- 
minorities (61.6%) enrolled in Yonkers public schools. SB 752.

84/ "Minority" includes black and hispanic students. See
SCHOOLS II supra.

85/ Middle schools include grades 6-8; junior high schools
include grades 7-9.



86/ In 1984, the school district converted seven Northeast
Yonkers elementary schools into K-8 facilities following the 
closing of Whitman Middle School for purposes of asbestos removal. 
Tr. 11,598 (Guerney).

87/ In 1982, the Board closed a tenth school. School 31, which
at the time was a 21% minority school. The Board converted the 
School 31 facility into a districtwide enrichment center for gifted 
and talented elementary school students.

88/ In 1980-81, there were 1,249 students enrolled in Special
Education programs, comprising 6% of the district's total public 
school enrollment.

89/ For an example of a segregative departure from this "last
grade" policy, see SCHOOLS IV.P.2 infra (Homefield redistricting).

90/ Two exceptions were made in this analysis to reflect the
existence of actual racial student enrollment data. One exception 
is for elementary school boundary changes made from 1962 to 1965: 
these changes are based on actual enrollment data for the 1961-62 
school year, at which time an actual count of student enrollment by 
race was made. Tr." 11,902 (Armor). A second exception is 
elementary school change # 15, a 1966 change whose racial effect is 
analyzed using 1967-68 actual racial student enrollment data. SB 
810.6, at 5. Unless otherwise noted, the estimated school 
enrollments computed by Dr. Armor are relied upon elsewhere in 
these findings, with particular limitations or caveats noted where 
applicable.

91/ For years prior to 1967-68, minorities included Asians and
Indian Americans, since census data prior to 1970 did not 
distinguish between different racial minority groups. Tr. 11,864- 
65, 11,947 (Armor).

■S3



92/ A segregative or desegregative effect was considered
"significant" if the D or E index changed by five or more points as 
a result of the boundary change. Tr. 11,905 (Armor).

93/ See Tr. 11,949 (Armor) (districtwide effect of boundary
change inappropriate measure of racial impact "unless one was sort 
of free to bring other ones into the process").

94/ The children of one of the black families actually attended
School 25 prior to the boundary change because of parental 
insistence that their children be permitted to attend the school. 
Tr. 460-61, 506-07 (Smith).

95/ No evidence was introduced regarding the feasibility of the
site suggested by Radko.

96/ The Board was told that the residents of Riverview would be
20% lower, 60% middle, and 20% upper income. Tr. 5107-08, 10,940- 
41 (Jacobson); see also Tr. 11,673 (Leahy).

97/ The reason for the seven-month gap between the March 1971
meeting and the October 1971 letter from Superintendent Alioto to 
City Manager Scher is not clear. According to Alioto*s letter, 
after Board representatives objected at the March 1971 meeting to 
the proposed revision in plans for School 10, "reconsideration was 
indicated" by YURA but "[n]o further advice was received" from 
YURA. According to Alioto, when the Board later approached Webdale 
about plans which the Board had heard about "through third parties" 
to build additional apartments along Riverdale Avenue, "they were 
advised that the land had been sold to developers." GX 301. 
According to Scher*s letter in reply, after the March 1971 meeting 
the City and YURA waited for a "formal reply which would indicate 
either active support or disapproval of this plan. The Urban 
Renewal Agency upon receiving no notification proceeded to sell the 
land to the developer who is presently constructing on site." GX 
297. According to Scher, construction work on the apartment

"5̂



building's foundation had commenced in October 1971. GX 299. The 
City's agreement-by-acquiescence explantion is hard to accept in 
these circumstances, given the strong objections voiced by school 

officials during the year, the clearly significant alteration in 
the school site which YURA had proposed, the previously close 
cooperation between YURA and the Board, and Webdale's repeatedly 
expressed desire to proceed expeditiously with the Riverview 
project.

98/ The reassignment of School 3 students to School 19 rather
than School 27, while segregative in its comparative impact, was 
based on School 19's underutilization rather than an attempt to 
limit minority enrollment at School 27. The suggested reassignment 
of School 3 students to School 27 involved a portion of the School 3 
zone which was still largely white, and was made contemporaneously 
with the recommended rejection^ of another proposed School 3/27 
redistricting based on the appearance of gerrymandering which theIlatter proposal created. GX 131. One year later, when School 3 was 
closed, the district rezoned, from School 3 to School 27, an area 
with substantially greater minority concentration than the 
predominantly white area which had been suggested for rezoning one 
year earlier.

99/ The idea of assigning students from the School 8 zone
to Runyon Heights' School 1 is not as radical as might first be 
imagined, despite the geographic distance between these two 
schools. The Grassy Sprain area in East Yonkers, for example, was 
approximately equidistant from Schools 1 and 8. Indeed, after 
School 24 was closed in 1976, students from Runyon Heights were 
assigned to School 31, which borders on the School 8 zone. This 
trip was considered by at least one Board member to be a safe route 
for students to travel "just down Tuckahoe Road." Tr. 9843 
(Minervini). Significantly, in 1982 School 31 was converted into a

5^*



specialized elementary school and the Runyon Heights area was 
rezoned into the School 8 attendance zone.

100/ In its Comments and Counter-Statements Regarding
Proposed Findings of Fact by Plaintiff-Intervenors and Plaintiff, 
the Board goes even further, arguing that the State Commissioner's 
decision, based in part on the NAACP letter, is res judicata as to 
the instant claim of intentional segregation. In light of our 
conclusions regarding the Board's decision to close School 1, we 
need not resolve this contention.

101/ The seventh principal worked at Yonkers High School,
whose 57% minority enrollment was more than double the districtwide 
high school average of 27%.

102/ The reassignment of students in this manner also
demonstrates a willingness to imjmse considerable travel burdens 
when community opposition to desegregation efforts was largely 
absent. See SCHOOLS III.F.3 infra.

103/ Longfellow's white student enrollment declined 52%
from 1969 to 1972. White student enrollment at Most Holy Trinity, 
St. Casimir's and St. Joseph's K-8 private schools, all located in 
Longfellow's attendance zone, experienced only a 25% decline in 
white seventh and eighth grade stodiint'enrollment (269 to 203
students) during the same period of time. SB 98.

104/ The total estimated ten-year cost of all transportation
called for under Phase II was $400,000. GX 99, at 22. The 
estimated savings in operating costs from closing a single middle 
school facility was approximately $100,000 per year, j^. at 21-22; 
the total savings (including staff-related costs) was approximately 
$500,000 per year. Tr. 4679-80 (Robitaille).

105/ A notable exception was the assignment of Runyon
Heights students from the School 24 zone to Emerson, an exception

,5(̂ .



which was eliminated in 1973 because of race-related factors. See 
SCHOOLS IV.P.2 infra.

106/ It is unclear whether the minorities included in this
boundary change included Asians. Tr. 11,947-48 (Armor). Given 
that the rezoned area in question is located in the southernmost 
portion of School 16'a attendance zone, closest to increasingly 
minority Southwest Yonkers, it is likely that at least some of the 
nine estimated "minorities" reassigned to School 16 were in fact 
black or hispanic. In any event, our analysis does not depend on 
the resolution of this uncertainty.

107/ Japanese-American students attended School 16 for the
purpose of participating in English-as-a-Second-Language programs 
provided at the school. Prank Dep. 261-62. The closing of School 
15 and reassignment of its students to Schools 26 and 28 was 
justified by fiscal considerations which forced the district to 
undertake oftentimes burdensome and inconvenient measures in an 
effort to comply with state-imposed^^ financial constraints. See 
SCHOOLS IV.A.B.b supra. The closing of School 1 resulted in the 
elimination of the district's only predominantly minority school. 
See SCHOOLS IV.A.3.a supra.

108/ The poor conditions at Commerce were in part the reason
for Superientendent Alioto's■creation'of a special task force in 
1974 to assess overall conditions at the school. GX 559.

109/ Disproportion at the middle school level was generally
absent during the years analyzed by plantiffs. Even here, however, 
minor trends are detectable: the most inexperienced staff in 1970 
and 1971 was at Gorton Junior High School (less than five years 
average experience), which at the time was also experiencing 
considerable race-related disturbances. See SCHOOLS rv.P.2 infra.

110/ Plaintiffs have submitted evidence of the
substantially lower reading and math achievement scores among third



and sixth grade students at predominantly minority schools during 
the 1979-80 and 1980-81 school years. GX 91-93, This evidence, to 
the extent it confirms that test scores are generally lower in 
Southwest Yonkers schools, is not controversial. We have 
difficulty, however, with the purpose for which it is apparently 
offered, namely, to show that minority students have been denied an 
equal educational opportunity in Yonkers public schools. Unlike 
attendance zone changes or school openings, whose numerical and 
racial impact can fairly readily be evaluated, we have little 
basis, and plaintiffs have failed to provide this Court with any, 
for drawing the conclusion that a verifiable correlation exists 
between the generally lower-than-average academic performance of 
minority students on achievement tests and the quality and extent 
of educational opportunities provided by the school district. This 
is not to say that the aforementioned conditions over which the 
Board had varying degrees of ̂ control._did not have a direct and 
significant impact on the educational opportunities available to 
minority students, or that student achievement levels did not have 
some effect on the community's perception of the quality of 
education at a particular school. However, we are cognizant of the 
degree to which other factors over which the Board lacks control, 
such as socioeconomic factors, have been recognized as having a 
significant influence on student achievement levels —  a 
correlation recognized not only by education and sociological 
experts, Tr. 12,329 (Armor), but also by Yonkers school officials 
themselves. See, e.q., GX 518, 604, 609; P-I 10-74; SB 654. In 
the absence of ̂ concrete and similarly persuasive evidence 
demonstrating the accuracy and statistically meaningful nature of 
the purported correlation between achievement test scores and the 
conduct of Yonkers school officials, we are unwilling to conclude 
on the basis of minority students' lower achievement test scores 
that such students have been denied the educational opportunities 
afforded other students in the district. See Bell v. Board of 
Education, Akron Public Schools, 491 F.Supp. 916, 941 (N.D. Ohio 
1980), aff'd on other grounds, 683 P.2d 963 (6th Cir. 1982).



The Board, on the other hand, also introduced evidence with 
respect to student achievement test scores. Dr. Armor analyzed 
fall 1981 and spring 1982 Metropolitan Achievement Test Series 
reading and math scores of fourth, sixth and eighth grade students 
by race and by socioeconomic status, and charted the rate of 
progress for these students by comparing their performance on these 
tests. Relying on the correlation between socioeconomic status and 
educational achievement. Dr. Armor then adjusted the achievement 
test scores for each student according to their socioeconomic 
level. Based on this analysis. Dr. Armor concluded that the 
achievement level of minority students in predominantly (over 55%) 
minority schools was equal to or greater than the achievement 
levels of minority students in racially balanced (25-55% minority) 
or predominantly white (under 25% minority) schools, after 
controlling for the socioeconomic status of all students. Tr. 
11,990-12,000 (Armor); SB 810.11-810.13.

r  • • -»  • • - i  -  ^  i

We have difficulty both with particular aspects of this 
analysis and with its^broader implications. As an initial matter, 
we may assume the validity of the correlation between socioeconomic 
status and student achievement upon which Dr. Armor's analysis 
relies. We note, however, that the negative impact of certain 
socioeconomic factors is not entirely beyond the ability of school 
officials to alleviate. For example, while student mobility caused 
by residential relocation, is a demographic phenomenon largely 
unrelated to Board acta or omissions, the Board was not without 
some ability to limit the educationally detrimental consequences of 
this phenomenon. See SCHOOLS IV.B.3 supra. Thus, to the extent 
that reliance on the correlation between socioeconomic status and 
student achievement carries with it the implication that school 
officials are powerless to either ameliorate or exacerbate the 
educational consequences of certain socioeconomic variables (thus 
factoring them out of the analysis), the analysis is somewhat 
misleading.



The underlying implications of the analysis are more 
disturbing. Various inadequacies in educational conditions at 
Southwest Yonkers schools and their impact on the quality of the 
educational process at these schools have been recognized by 
Yonkers school officials themselves and have been established to 
this Court's satisfaction. Just as lower test scores tell us 
little about the extent and success of the efforts of school 
officials to provide meaningful and equal educational experiences 
to all students, we have similar difficulty accepting the notion 
that higher socioeconomically-controlled test scores among 
minority students in racially imbalanced schools necessarily compel 
the conclusion that tangible and intangible educational 
inadequacies extant in Southwest Yonkers schools somehow either did 
not exist or did not impact negatively upon the students at these 
schools. Our task as we perceive it is to determine whether the 
Board failed to provide equal educational opportunities for Yonkers 
public school students, why that failure occurred, the measures 
taken by the Board to alleviate the inequalities which existed, and 
the explanations for and the legal consequences of the Board's acts 
and omissions ~  not whether minorities may have overcome the 
inequalities that existed in the district, or whether the existence 
of higher achievement teat scores among minorities in segregated 
schools somehow establishes the legality or educational superiority 
of such an environment. Assuming that the racial segregation in 
Yonkers public schools has been deliberately created or maintained 
by acts and omissions of the Board, we fail to see how superior 
performance on achievement tests by racially segregated minorities 
precludes this Court from ordering the eradication of such 
segregation.

Ill/ Prior to receiving Title I funds in any given year, the
district was required to submit a comparability report to the Title 
I Regional Program Office of the New York State Education 
Department, demonstrating that instructional materials and 
supplies available at Title I schools were comparable to materials 
and supplies at non-Title I schools. These comparability reports

WO.



were reviewed and accepted by the Regional Office for the years 
1976-80. Tr. 13,523-24 (Stipulation); SB 817-821.

112/ While we recognize that the above practices predate the
Supreme Court's decision in Brown v. Board of Education. The 
temporal remoteness of these discriminatory practices, especially 
in view of their subsequent segregative effect, does not undermine 
their legal relevance. See Keyes v. School District No. 1. supra, 
413 U.S. at 210-11; Arthur v. Nyquist. supra, 415 F.Supp. at 913.

We reject the Board's argument, stated in general terms but 
with particular relevance here, that it cannot be held liable for 
individual acts of employees (principals, guidance counselors, 
teachers) as not being pursuant to official policy of the Board. 
Assuming that the S 1983 principles upon which the Board relies 
govern the liability of a school board in a school desegregation 
case brought under Title IV and Title VI, cf. Rizzo v. Goode, 423 
U.S. 362, 377 (1976) (distinguishing school desegregation cases, in 
which board members' and administrators' own conduct resulted in 
racial segregation of schools, from S 1983 police misconduct case 
in which discriminatory acta of police officers were not traceable 
to unlawful policy of high-ranking police officials), the Board's 
conduct is nevertheless sufficient to give rise to legal 
responsibility for the discriminatory operation of the school 
district's vocational program. The Board's liability is not 
predicated on a theory of respondeat superior. Rather, the Board 
specifically delegated decision-making authority to Board
employees, and waa aware of and acquiesced in the discriminatory 
consequences of their acts with respect to the operation of 
vocational programs in the Yonkers public schools. The Board's
liability is thus not predicated on an isolated Instance of 
unauthorized discriminatory conduct by an employee against an 
individual victim, see Turpin v. Mailet, 619 F.2d 196 (2d Cir.), 
cert, denied, 449 U.S. 1016 (1980); Owens v. Haas, 601 F.2d 1242 
(2d Cir.), cert, denied, 445 U.S, 980 (1979), but on the Board's 
conduct in the face of a pattern of discriminatory acts and 
omissions over time. Particularly since this pattern was

%



consistent with the Board's own adherence to segregative practices 
elsewhere in the district at that time, see SCHOOLS IV.A.3.a supra, 
SCHOOLS IV.E. infra, the Board's inaction provides an even stronger 
basis for holding it legally responsible for the discriminatory 
conduct of its employees. In addition, the continued adherence to 
the Saunders screening criteria during the 1970's despite an 
awareness of its segregative consequences was a decision for which 
the Board and high-ranking school administrators, not school-level 
employees, were primarily responsible.

113/ Hispanics were not similarly represented in
disproportionately low numbers. During the eight year, 1969-77 
period, hispanics were represented at Saunders in a percentage 
equal to or greater than the districtwide high school average for 
six of those years. Hispanic enrollment at Saunders was 
disproportionately low only in comparison to hispanic enrollment at 
Yonkers High School.

114/ The Advisory Council' for Occupational Education was created 
pursuant to a state-imposed "requirement for school districts that 
receive Vocational Education Act funds. The sixteen-member council 
consists of persons from various business and community organizations 
and advises the Board on policy matters relating to occupational 
education. P-I 75-25.

115/ While the United Stiates indicated in interrogatory responses 
that it did not allege or seek to introduce evidence to demonstrate 
that any individual clarification decision'was the result of any 
individual employee's intentionally discriminatory conduct, see 
United States' Response to Yonkers Board of Education's Third Set of 
Interrogatories, at 61-62 (#33,35), this does not preclude an 
examination of the placement and referral process to determine whether 
the pattern of disproportlonality adverted in text, together with 
testimony and other evidence regarding the conclusions reached by 
school officials as to the reasons for such disproportion.



demonstrates that the operation of the Special Education program 
was affected by an intentionally discriminatory referral process. 
The interrogatory response reflects a limitation on the method by 
which such discrimination was to be proved, not a preclusion of the 
government's claim or the evidence actually submitted in support. 
Of course, any limitation which does exist does not apply either to 
the NAACP or to plaintiffs' claims of discrimination in the non­
referral aspects of the Special Education program, such as the 
transportation of disproportionately minority Special Education 
classes to virtually all-white schools.

116/ This practice was not universally followed. At School 4,
for example. Special Education students participated in art classes 
and assemblies. P-I 4-6.

117/ In 1979—80, School 32's Special. Education ED classes were
42% minority; the minority students in such classes constituted 42% of 
the school's total minority student enrollment. GX 64; SB 812.

118/ GX 64 indicates that School 16 had 26 Special Education
students in 1971-72. GX 686 indicates that School 16 had 13 Special 
Education students, all of whom were in ED classes. While this 
discrepancy may be due to enrollment fluctuations during the course of 
the school year, GX 686 is nevertheless helpful insofar as it 
indicates the particular type of at least some of the Special 
Education classes at the school.

119/ This number was computed by dividing the number of minority
Special Education students in predominantly white schools 
containing ED classes (five) by the total number of Special 
Education students in these schools (46). SB 812. This figure may 
well overstate the number of students in ED classes since some 
schools had both ED and other types of Special Education classes, 
and student enrollment data for each particular class was not 
introduced. Nevertheless, this evidentiary gap does not

^ 3



significantly affect the usefulness of examining minority student 
enrollment in ED classes on a comparative, year-to-year basis, in 
order to detect particular trends over time.

120/ The zero figure takes into account the possibility that
minority Special Education students in schools with both an ED and 
an LD class were all in the LD class. Looking only at those 
predominantly white elementary schools with ED classes only, the 
number of minority students in these schools increased from zero 
(out of four ED students) in 1975-76 to^27 (out of 52 ED students) 
in 1979-80. SB 812.

121/ The Board argues that the consensual resolution of the
United States Department of Education's charges regarding the 
district's Special Education program should preclude inquiry into 
the program as it existed prior to this resolution. We agree that, 
with respect to the United Stattes, the fact that the aforementioned 
allegations were consensually resolved cannot be relied upon by 
this Court as independent evidence of wrongdoing and that such 
resolution may eventually preclude the United States from 
challenging the sufficiency of the previously agreed-upon remedial 
measures during the remedial phase of this case. However, we 
adhere to our prior ruling that evidence of the Board's conduct in 
this area is admissible for the purposes of demonstrating 
segregative or discriminatory intent consistent with other evidence 
of discrimination or segregation in the operation of Yonkers public 
schools, and for the- purpose of demonstrating the segregative 
consequences of the Board's conduct in this area. Tr. 4132-40. 
See Dayton Board of Education v. Brinkman, 443 U.S. 526, 539 n.ll 
(1979); Arthur v. Nyquist, supra, 415 F.Supp. at 941. This 
conclusion is also supported by the fact that the Department of 
Education's findings do not address the propriety of other aspects 
of the district's treatment of minority Special Education students 
or the stigmatizing effects of such practices. We also note that 
the aforementioned evidentiary limitations urged by the Board are 
inapplicable insofar as the NAACP is concerned. Tr. 4140.



122/ The term "staff" is used to refer to teachers, principals,
and assistant principals. GX 64; Tr. 3184-85 (Sweezy).

123/ While GX 64 indicates that School 19 (68% minority) had zero
minority faculty, this information is not relied upon since this 
exhibit also Indicates that the total number of faculty at that 
school was five. GX 89 provides a more realistic and accurate 
indication of the size of the school's total faculty —  22 members. 
Given that six of the seven most disproportionately minority 
schools in Yonkers had at least two minority staff members in 1967- 
68, it is unreasonable to assume that none of the School 19 staff 
members were minorities.

124, This does not include School 19. See fn. \a.3 supra.

125/ This excludes the middle school staiC of the Gorton (grades
7-121-£acilityr-which-In toteil- employed-23^ minority staff members.

126, Schools 4, 8, 11, 14, 15, 17, 21, 22, 26, 28, 29, 30, 31, and
32.

127/ This number actually overstates the number of minority
middle school staff members in the district since it includes 
minority staff at the elementary school portion of the Emerson and 
Twain (grades K-8) facilities. Although, separate staff data by 
race is unavailable for 1980, in 1978-̂ 79 Emerson and Twain had a 
total of 12 minority staff members, only eight of whom were middle 
school staff. GX 52. /

128, The Commissioner stated that:

The position of the Department, based on the policy of 
the Regents and the principals of the Commissioner's 
Advisory Committee, is that the racial imbalance existing 
in a school in which the enrollment is wholly or predomi­
nantly Negro interferes with the achievement of equality

• VS



of educational opportunity and must therefore be elimina­ted from the schools of New York State.
If this is to be accomplished, there must be correc­

tive action in each community where such imbalance 
exists. In keeping with the principle of local control, 
it is the responsibility of the local school authorities in such communities to develop and implement the neces­
sary plans. It is recognized that in some communities, 
residential patterns and other factors may present 
serious obstacles to the attainment of racially balanced 
schools. This does not, however, relieve the school 
authorities of their responsibility for doing every­
thing within their power, consistent with the principles of sound education, to achieve^an equitable balance.

GX 909.1.

129/ For discussion of Superintendent Alioto's concerns
regarding the Special Education program, see SCHOOLS IV.D supra.

130/ The proposed conversion of School 5 was also criticized by
school officials and community members based on the perceived> -nil.. ..physical inadequacy of the facility as a middle school. GX 760, at
44,936; 765; 769.

131/ The cost of the NYU Report proposals ranged from $4.0 to
$7.3 million; the 1973 Reorganization Plan carried an estimated 
cost of $9.8 million. GX 114, at 40.

132/ This opposition to busing, in the context of a variant of
the magnet school concept, also t>ears relevance in evaluating the 
sincerity of facially race-neutral community opposition to the 
Phase II reorganization plan. See SCHOOLS IV.P.3 infra.

133/ In this connection, we reject Dr. Armor's conclusion that
the Commerce opening and related attendance zone changes were 
significantly desegregative. Dr. Armor's conclusion rests on the 
fact that the Commerce opening and subsequent reassignments from 
Hawthorne and Longfellow resulted in four schools which were more 
similar in terms of percentage minority enrollment {Coramerce-70%, 
Fermi-41%, Hawthorne-59%, Longfellow-76%) than was previously the



case (Gorton-54%, Fermi-40%, Hawthorne-36%, Longfellow-79%). (The 
Hawthorne 36% figure may have been somewhat understated due to the 
possible miscount of hispanics as whites. Tr. 11,944 (Armor). 
Even making the unlikely assumption that no demographic changes 
occurred during 1974, however, Hawthorne's minority enrollment 
prior to the Commerce opening would not have been farther from the 
districtwide average than its minority enrollment subsequent to the 
Commerce opening). First, this analysis falls to recognize the 
impact, in terms of community perceptions and racial 
identiflability, of opening an additional predominantly minority 
school in Southewest Yonkers —  a problem which was anticipated by 
school officials prior to the school's opening, was noted by school 
offlcals and community members at various times subsequent to its 
opening, GX 556, 557; Tr. 12,647 (DiChiaro), and eventually led to 
its closing, Tr. 4629 (Robitaille). Second, the above percentages 
reflect that each school (other than already heavily minority 
Longfellow) became more, rather thaa less, racially imbalanced when 
compared, to the^ 22%. minority districtwide average enrollment. 
Third, Dr. Armor acknowledged that because of the Intraschool focus 
of his analysis, that is, how schools* racial enrollments changed 
relative to each other, his analysis would have yielded an even 
greater desegregative effect had fewer whites been involved in the 
above reassignments and had each of the aforementioned schools thus 
emerged with minority enrollments of 70%, 65%, 65%,and 76%, 
respectively*’Tr. 12,101-03.

134/ As Barrier described it, he received
[c]alls fr(» parents, white parents. It is 
amazing how if you hold a position as special 
assistant or special consultant people somehow 
or another, I mean, just assume that you're 
white. So they told me a number of things 
about what was happening, I mean, and what 
those monsters were doing up there.

Tr. 4334. In describing a subsequent meeting at Emerson attended 
by hundreds of community members. Barrier recalled that the topic 
of discussion was



what can we do to bring back, I mean, our old 
Emerson High School to what it used to be.
Now, I don't know what it used to be, I mean, 
at the time before we had not had black 
students, that many black students, I mean, to have involvement.

Tr. 4336. According to Barrier, Runyon Heights minority 
students told him

that on their way home, I mean, people tried to 
run them off the road ... everyday, I mean, 
there was somebody attempting to run them over,
I mean, on the highway when they were on their 
way home, and I think the black students them­selves had fear, I mean, that they were going 
to be hurt.

Tr. 4338.
135/ This opposition also was manifested in the form of false

addresses being used by reassigned Homefield students in order to 
avoid attending Gorton High School, as well as the use of 
psychological reasons as a basis for requesting an out-of-district 
transfer back to Roosevelt. These practices were fairly limited, 
Tr. 4420 (Butler) (about 20 students); Jungherr Dep. 8-9 (five to 
20 students), and prompted the district to seek legal advice in an 
attempt to prevent the improper use of false addresses by Homefield 
students, GX 574; Tr. 13,462-63 (Frank), and thus do not‘ i.
constitute independent evidence of Board acquiescence in 
segregative community opposition to the Homefield redistricting.

136/ This number does not include Homefield students who used
false addresses in order to attend Roosevelt rather than Gorton. 
Tr. 13,463 (Frank); see fn. \ 3 ^ supra.

137/ Phase II did not include Task Force recommendations
concerning special high school programs. It did, however,
recommend the closing and relocation of Saunders, a recommendation 
which, as noted in text, infra, the Board eventually adopted and 
implemented.



138/ The report stated:
Sometimes one defines the neighborhood school as that area 
currently being served by a particular elementary school, 
but that raises several interesting points. At one time 
this city was served by a handful of schools; as the 
population increased, additional schools were built. When 
that happened, district lines changed, generally without 
fuss for one had a new building to attend. During the 1950's and 1960's district lines were in constant state of 
flux as schools were built to take care of the increase in 
school population. Now that the reverse is true, should not 
the reverse happen and district lines be modified when unneeded schools are removed from use?
My point is simple and that is there is no precise defin­
ition of a neighborhood school in this country nor in this 
city. There is a considerable variance in size, number of classes, geographic area, distance from school, and even in 
cost of operation. For exeunple, under our present setup we 
could have 35 children in a particular grade; that would 
cost us two teachers. In another nearby school we could 
have 55 children in the same grade and that would coat us 
two teachers. In the latter school we are educating 20 
additional children for next to nothing! The same is true 
of operational costs; at the present time we have a 
principal and a secretary serving a school of around 300 
pupils and in other school of 700 pupils we have a principal 
and a secretary. Obvioju[sly, one costa us much more.

GX 98, at 27.

139/ By March 1978, the Board, with one exception (Robert
Jacobson), tonsisted of persons appointed by Mayor Martinelli. Two 
months later,‘ 'Jacobst>n,~~ who was generally supportive of the 
district's desegregative efforts, was replaced by Robert Weiner, 
Mayor Martinelli*s former campaign manager. See SCHOOLS V.C infra.

140/ This opposition was consistent with previous expressions of
Southwest Yonkers community opposition, to Phase II. P-I 60-25.

141/ Although the transcript of the Lincoln High School hearing
does not include comments referring to the Bronx, the consistent 
testimony of three witnesses on this point does support the finding 
that such concerns were expressed either at the Lincoln hearing 
(the transcript of which is incomplete; GX 943.2, at 41), at



another hearing, or at other fora during the time the Phase II plan 
was being considered by the Board.

142/ This opposition to the reassignment of minority students to
East Yonkers schools is not inconsistent with community sentiment 
expressed at the time of the 1976 school closings. The relatively 
greater receptivity to having additional students attend East 
Yonkers schools was clearly understandable at the time of the 1976 
school closings in light of the considerably more drastic and 
undesirable alternative of having one's own school closed as a 
result of the district's budget cutbacks, and the possibility that 
assignment of additional students to East-Yonkers schools would 
enable community members to succeed in their efforts to reopen the 
schools. Tr. 11,753-54 (O'Keefe). In addition, as already 
discussed in text, after the 1976 school closings were implemented, 
the Task Force began, to encounter community opposition to the 
prospect of reassigning Southwest Yonkers minority students to East 
Yonkers schools.

143/ The study involved the direct questioning of 1,600 to 1,800
parents in order to determine both their stated reasons for 
opposing various desegregation plans and the sincerity of their 
responses. Tr. 11,956-57 (Armor).

144/ The City of Los Angeles is approximately 250 square miles;
Yonkers is approximately 21 square miles. Tr. 12,536 (Armor).

■ i  y . ■ 1 * 5 -

145/ The Board's approval of this reorganization followed the
recommendation of Superintendent Raymond's Curriculum Advisory 
Committee and was consistent with the grade reorganization proposal 
set forth in Phase II. GX 87a; P-I 45-173.

146/ For an example of the pretextual nature of opposition to
"forced busing”, see Weiner Dep. 395-400. Weiner recognized that 
the hypothetical assignment of students three miles from their 
homes due to uneven population distribution was unobjectionable.



In such a situation, students could choose from a variety of 
transportation options, including taking a bus; according to 
Weiner, such a plan would not involve "forced busing". However, 
when such assignments involve integrative objectives, Weiner 
characterized the use of buses to transport students to school in 
this situation as "forced busing".

147/ Concerns as to the time involved in busing students to
school played relatively little role in the Board's consideration 
of the plan. Superintendent Robitaille and his staff had 
concluded that the use of transportation, rather than walking, 
would have shortened the time required for many students to travel 
to school. Tr. 4698-99,

148/ As discussed earlier, community opposition to closing Fermi
or Longfellow was also based bn the perceived disproportion in 
transportation-related burdens whiclr would have resulted and the 
suggested alternative of reassigning other middle school students 
to these schools. The Board's inSctibn with respect to both 
rationales is discussed in text infra.

149/ In August 1980, the Board adopted a high school open access
plan for purposes of improving racial balance. P-I 60-46A. In 
view of the subsequent failure of the district to implement this 
plan and this Court's exclusion of post-bomplaint evidence 
concerning the reasons for this failure, we need not consider 
whether the Board’s Initial adoption of this plan constitutes 
evidence of meaningful efforts to address the problem of racial 
imbalance.

150/ The Board has proffered evidence concerning the
implementation of a number of magnet school programs during the 
last three years as evidence of the sincerity of its desegregative 
intentions at the time of Phase II. See Court Exhibit A, September 
19, 1984. As noted previously, it is this Court's judgment that 
events arising subsequent to the institution of this lawsuit are

>̂1



generally best dealt with at the remedial phase absent a showing 
that post-complaint conduct constitutes the continuation of an 
identifiable pattern of action or inaction which commenced prior to 
the filing of this lawsuit. See fn. SO supra. In this particular 
instance, we fail to see how the implementation of these programs, 
over four years after the Board's consideration of Phase II, is 
directly traceable to a pattern of pre-1980 conduct such that it 
should be presently considered as relevant to liability. Among the 
most significant intervening events occurring between the Board's 
rejection of Phase II and the subsequent creation of magnet schools 
are the institution of this action in 1980 and the rejection of a 
high school integration plan in 1981 —  events which in our opinion 
weigh against our finding that a meaningful connection exists 
between thê  rejection of Phase II and the implementation of these 
magnet school programs.

151/ Yonkers is one'of five school districts in ~New-York State
which is fiscally dependent bn the city in which it is located; the 
others are the New York City, Buffalo, Rochester, and Syracuse 
school districts. N.Y. Educ. Law S 2576 (McKinney 1981).

152/ Evidence concerning this proposal illustrates clearly the
City's awareness of the impact of a school's racial composition on 
residential housing choices. In a memo describing a meeting with 
Superintendent Robitaille, the City's Department of Development 
Administrator Alphons Yost stated that

Discussion centered on the North Broadway area 
of Yonkers and the perception which residents 
have of Schools 6, 9, 12, 16, 25, and King.
Contact with residents in the area indicates 
that this perception is greatly Influenced by 
the racial composition of the school. Resi­
dents use this perception in choosing whether 
to live within a school district. Of the six 
districts discussed, residents have stated 
that P.S. 16 [2% minority] has the best reputa­tion.



GX 144. When asked if any City officials at the meeting questioned 
this phenomenon, Gregory Arcaro, the Planning Department's Senior 
Planner, stated that "there was no disputing of that as an 
operative dynamic in the housing market," Tr. 2888,

153/ The Board had previously approved a proposal by
Superintendent Raymond, never implemented, to transfer adult 
education progreuns to the school. P-I 45-173.

154/ The NAACP's claim of unlawful school segregation is not
cognizable as a violation of the thirteenth amendment. See Alma 
Society, Inc, v. Mellon, 601 F.2d 1225, 1236-38 (2d Cir. 1979), 
cert, denied, 444 O.S, 995 (1980); Parent Association of Andrew 
Jackson High School v. Ambach, supra, 598 P.2d at 715. The NAACP's 
fourteenth amendment claim is cognizable as an alleged, violation of 
42 U.S.C. S 1983. See Turpin v. Mailet, 591 P.2d 426, 427 (2d Cir.
1979) (en banc) (per curium), cert, denied, 449 O.S. 1016 (1980).
Pinally» the clear weight of legal authority suggests that both the 
NAACP and the United States are empowered to sue to enforce the 
provisions of Title VI. See Guardians Association v. Civil Service 
Commission, 103 S.Ct. 3221, 3227-28 (1983) (White,J., joined by 
Rehnquist,J.); 3244-45 (Marshall,J.); 3250 (Stevens,J., joined by
Brennan,J., and Blackmun,J.) (holding that provisions of Title VI 
may be enforced in a private action against recipients of federal 
funds); Brown v. Califano, 627 P.2d 1221, 1232 n.67 (D.C.Cir.
1980) (Attorney General has authority to initiate Title VI
enforcement a c t i o n s ) United States v. Marion County School 
District, 625 P.2d 607, 609-17 (5th Cir. 1980) (same), cert.
denied, 451 U.S. 910 (1981).

In its complaint, the NAACP also requests that this Court 
exercise pendent jurisdiction over its allegation that the 
defendants' conduct violates state law and grant equitable relief 
for such violation. See Complaint f1 3,4; p.ll. The NAACP's state 
law claim has not been specifically addressed or pursued subsequent 
to the filing of its complaint except as noted herein. The Supreme

S3



Court also has recently held that federal courts are barred from 
awarding injunctive relief against state officials for violations 
of state law, and that this principle applies to state law claims 
brought into federal court under pendent jurisdiction. See 
Pennhurst State School and Hospital v. Halderman, 104 S.Ct. 900 
(1984). This Court therefore lacks jurisdiction to adjudicate the 
NAACP's state law claim.

155/ While Mattson and Solomon were followed by congressional
authorization of suits by the Attorney General challenging 
conditions of state mental hospitals, 42 U.S.C. S 1997, this 
subsequent development does not undermine and to a certain extent 
reinforces the conclusion that the United States lacks standing to 
bring suit directly under the Constitution absent statutory 
authorization to do so. S e e i n f r a  (discussing Ferndale).

156/ In the only other directly comparable decision involving
municipal liability for school segregation, the claims were 
asserted by private litigants under S 1983 and the fourteenth 
amendment. See Arthur v. Nyquiat, supra, 415 P.Supp. at' 909.

157/ The Rizzo decision also was based on the absence of any
proof that the defendant municipal authorities had played any 
affirmative role in the deprivation of constitutional rights by 
police department employees, a necessary prerequisite to municipal 
liability under S 1983. 423 D.S. at 373-77. The City does not
contend that its housing and school-related policies and practices 
are an insufficient predicate for liability in this respect.

158/ While Dayton involved the rescission of a previous school
board's resolutions acknowledging responsibility for creating 
segregative racial patterns and calling for various types of 
remedial measures, we see no constitutionally relevant distinction 
between such conduct and a school board's refusal to Implement a 
desegregation proposal in the first instance such that the latter



decision could be considered any less an indication of segregative 
intent.

159/ Although Armstrong was vacated and remanded by the Supreme
Court, the Court's decision was based on the "unexplained hiatus" 
between the lower court's findings and conclusions regarding 
segregative intent, and on the need for the lower courts to 
evaluate the Supreme Court's decision in Dayton Board of Education 
V. Brinkman (rendered two days earlier) in formulating a remedial 
plan. Brennan v. Armstrong, 433 D.S. 672, 672-73 (1977); see NAACP 
V. Lansing Board of Education, supra, 559 P.2d at 1047-48 & n.6. We 
do not interpret this subsequent development as undermining the 
legal principles for which Armstrong is cited in text.

1^0/ We note that a duty to alleviate racial segregation in
public schools had been imposed at one time as a matter of state law 
where such segregation denies minority students equal educational 
opportunities. See People v. San Diego Unified School District. 19 
Cal.App.3d 252, 96 Cal.Rptr. 658 (1971). The California appellate 
court based this duty on the previous judicially-established state 
law principle that school boards are required to take reasonably 
feasible steps to alleviate racial imbalance in schools regardless 
of its cause. at 665-66. As our discussion in text makes
clear, the Board's liability in this case is based on a 
considerably different legal foundation.

161/ Our conclusions with respect to the Board's failure to adopt
Phase II are not inconsistent with cases holding that no 
constitutional duty exists to transport students in order to 
achieve school desegregation. See Keyes v. School District No. 1, 
supra, 413 U.S. at 242 (Powell,J., concurring in part and 
dissenting in part); Deal v. Cincinnati Board of Education, supra, 
369 F.2d at 61. First, these cases hold that school boards are not 
required to bus students solely to alleviate racial imbalance. See 
Keyes v. School District No. 1, supra, 413 D.S. at 242; Deal v. 
Cincinnati Board of Education, supra, 369 F.2d at 61. While Phase

“̂ 5



II was primarily intended for this purpose, fiscal, utilization- 
related, and educational aspects of the plan were also present. 
Second, our decision is not predicated solely on the Board's 
rejection of Phase II; it is based both on the failure to implement 
Phase II, any desegregative component of Phase II, or any 
desegregative alternative to Phase II, as well as on the 
circumstances which led to the racial imbalance in Yonkers public 
schools prior to the development of Phase II.

162/ Both Bell and the Austin concurrence expressed reservations
regarding the relevance of public housing discrimination to school 
board liability based on the remedial difficulties in holding 
otherwise. In Bell, however, the court expressed concern regarding 
the manner in which school authorities "would go about remedying 
this problem or what kind of order a federal court could enter that 
might as a practical matter have a chance of changing the fact that 
black and white families live in separate neighborhoods.” 683 P.2d 
at 968. Bell thus emphasizes the importance of the City's presence 
in the instant case; remedial measures for the City's housing 
discrimination will indeed be designed to alleviate residential 
segregation in the city, and the development of school-related 
remedial measures in conjunction with such relief is certainly a 
realistic task. Cf. United States v. Board of School Commissioners 
of Indianapolis, supra; Arthur v. Nyquist, supra. In Austin, the 
concurring opinion's reservations were expressed in the context of 
its discussion of the overbroad nature of the remedial measures 
ordered by the lower court. 429 D.S. at 994. While we are fully 
mindful of the carefully circumscribed authority of federal courts 
to order relief for unlawful school segregation commensurate with 
the constitutional violation, we do not believe that our 
determination that the school board unlawfully failed to alleviate 
school segregation is inherently not susceptible to appropriate 
remedial action. Neither Bell nor Austin involved a judicial 
determination that city authorities had engaged in unlawful housing 
and school segregation. In ant event, we deal here only with



questions of liability; the nature and scope of any remedial 
action awaits the further stages of this litigation.

163/ The impact of the Supreme Court's school desegregation
precedents on both of the questions posed above is discussed at 
pages 5X)-7̂ inf ra.

164/ By "school-specific" relief, we refer to remedial measures
other than those dealing solely with the City's construction, 
development or location of subsidized housing; for example, 
ordering the City to fund the cost of implementing a desegregation 
decree involving the implementation of desegregative educational 
programs. See Arthur v. Nyquist, supra, 712 P.2d at ̂ |3 . In the 
Indianapolis litigation, the cost of implementing the interdistrict 
school desegregation plan was borne entirely by the. state. 677 
P.2d 1185 (7th Cir.), cert, denied, 459 U.S. 1086 (1982). The 
issue of allocating the^cost of remedying racial segregation within 
the Indianapolis school-district not before the court. Id. at 
1186 n.l, 1188 n.3.

165/ Similarly, we need not resolve the question whether the
City's involvement in, and indirect control over, the operation of 
Yonkers public schools constituted a degree of control whichw.
renders the City "equally culpable with school officials for the 
actual operation of the [ŝ ch«fol] system,” see NAACP Proposed 
Pindings of Pact and Conclusions of Law, at 41, or is otherwise an 
independent baslsfor imputing liability for school segregation to 
the City.

166/ The City also contends that judicial scrutiny of mayoral
appointments involves an inquiry into individual attitudes and 
beliefs which are protected by the first amendment and thus cannot 
be the basis for a finding of unlawful discrimination. This 
argument raisperceives the relevance of mayoral appointments in this 
case. Our function is not to determine whether the Mayor or his 
appointees' personal beliefs are unlawful, or whether an act of

5 1



appointment itself was a violation of the Constitution. We have 
instead focused on the reasons underlying the appointments, the 
circumstances in which the appointments were made, and the 
consequences of the appointments on the Yonkers school system in 
order to determine whether evidence concerning the mayoral 
appointment of Board members constitutes evidence of an intent to 
influence and control educational affairs in a manner consistent 
with other municipal conduct affecting Yonkers public schools. It 
is this intent, the ~*other acts and omissions of governmental 
authorities which were consistent with this intent, and the 
resulting impact of such acts and omissions on Yonkers public 
schools, which together form the basis for our finding of unlawful 
school segregation. See also United States v. Yonkers Board of 
Education, supra. 518 P.Supp, at 200.

6 ^ '



APPENDIX A

CITY OF YONKERS 
SUBSIDIZED HOUSING SITES

12

-s'



APPENDIX A - CONT''D

Proiect Type
Number of 
Units Approved Opened

1. Mulford Gardens(Emmett Burke Gardens)
Family 550 1938 1940

2. Cottage Place 
Gardens Family 250 1942 1949

3. Schlobohm Houses Family 413 1950 1953

4. Sunset Green Family 70 1957 1960

5. Sunnyside Manor Family 121 1957 1964

6. Loehr Court SeniorCitizen
108 1958 1962

7. Hall Court Family 48 1958 1962

8. Calgano Homes Family 278 1958 1964

9. Walsh Houses Senior
Citizen

300 1961 1967

10. Phillipse Towers Family 544 1962 1964

11. Kristensen Houses Senior
Citizen

32 1963 1967

12. Curran Court Senior
Citizen

186 1963 1967

13. Jefferson Terrace Family 64 1968 1971

14. Highland Terrace Family 96 1968 1969

15. Messiah Baptist Family 130 1970 1972

16. Flynn Manor Senior
Citizen

140 1970 1971

17. 10 Orchard St. Family 8 1970 1971

18. Riverview I Family 454 1970 1975

19. Riverview II Family 343 1970 1975



APPENDIX A - CONT'D

Project Type
Number of 
Units Approved Opened

20. Frazier Homes Family 21 1970 1973

21. The Dorado Family 188 1970 1973
22.. Whitney Young 

Manor
Family 195 1970 1974

23. Waverly Arms Family 28 1970 1972

24. Fr. Finian
Sullivan Towers

Senior
Citizen

150 1970* 1975

25. 164-170 Buena 
Vista Ave.

Family 12 1971 1971

26. Seven Pines Family 300 1971 1974

27. Cromwell Towers Family 317 1971 1974

28. Jackson Terrace Family 181 1971 1973

29. Parkledge Family 310 1972 1975

30. Lane Hill Apts. Senior
Citizen

109 1976 1980

31. Margaret Hughes 
Housing

Senior
Citizen

101 1977 1980

32. 28 Lamartine Terr. Mixed 82 1977 1979

33. 557 So. Broadway Mixed 14 1977 1979

34. St. Casimir's Senior
Citizen

264 1978 1980

35. 182 N. Broadway Family 62 1979 1981

36. Kubasek-Trinity 
Manor

Senior
Citizen

130 1979 1981

37. Monastery Manor Senior
Citizen

146 1979 1982

38. Post Street Apts. Family 55 1980 1981

* Preliminary approval; final approval given in October 1973.
-

Source; GX 1225.52; 1099.9; 1099. 11; C-1700.



APPENDIX B

~ T,krru^pfe

ELEMENTARY



APPENDIX C



APPENDIX D



APPENDIX E

Engineering Department figures are derived from the Board of 
Education's 1981 "Annual School Profiles" (GX 81) and the administra­
tion's 1977 Phase II plan (GX 98). These figures are based on the 
square footage of space available. GX 71; GX 98, at 14.

New York Univerity Report figures are derived from a 1972 New 
York University School of Education report containing various school 
reorganization proposals for the Yonkers public schools. Except as 
otherwise noted below, elementary school capacity is based on a 
"realistic operating capacity" of 90% of a school's theoretical 
student capacity; middle school capacity is based on a "realistic

r *  . * ,

operating capacity" of 80% of a school's theoretical student 
capacity, and high school capacity is based on a "realistic operating

-i ■
capacity" of 80-85% of a school's theoretical student capacity.

The 1976 School Closing Plan and 1977 Phase II figures are 
derived from two school reorganization plans developed by Superinten­
dent Joseph Robitaille and his staff. Elementary school capacity 
figures were derived by multiplying the number of available classrooms 
by a 28-student-per-classroom average, with allowance being made for 
special classroom uses in a particular school, e.q., Special Education 
instruction, funded educational program laboratories, and pre-K 
programs. GX 126. Secondary school capacity figures are based on a 
variety of program-related factors. GX 98, at 13. Differences 
between 1976 School Closing Plan and Phase II capacity figures 
(apparently attributable to changes in space utilization, e.g., for 
special programs) are noted where applicable.



APPENDIX E - CONT'D

School Capacity

Elementary Schools
Engineer ing 
Department 
(1977, 1981)

NYU
Report
(1972)

1977 Phase II 
(1976 School c; 

Plans
1 (closed 1954)

a/240 - -
2 (converted 1945) - - -
3 (closed 1976) - 661 672
4 (closed 1976) _ 500 504
5 - 750

b/
743 672

6 - 460 497 420
7 (closed 1976) - 661 560
8 - 550 581 560
9 - 604 605 560
10 - 725 - 532 (504)
11 (Twain) 650 639 644 (728)
12 (closed 1976) - 520 476
13 - 900 887 756 (859)
14 - 553 580 588 (616)
15 (closed 1976) - 320 448
16 - 475 473 448
17 - .425 394 476 (448)
18 - 900 875 868 (840)
19 - 650 635 672
20 (converted 1938) - - -
21 - 475 529 532
22 450 450 504
a/ This figure is derived from a 1954 building utilization report. 
~ GX 2, at 3.
b/ This figure is based on an 80% realistic operating capacity.

GX 115, at 43.



APPENDIX E - CONT'D

School Capacity

Engineer ing NYU 1977 Phase II
Elementary Department Report (1976 School Clos
Schools (1977,1981) (1972) Plans

23 . 850 634 756 (840)
24 (closed 1976) - 371 420
25 650 659 532
26 655 527 616
27 525 558 560 (504)

28 490 450 560
29 550 504 560 (588)
30 500 580 560
31 450 423 448
32 675 477 644 (672)
King 750 - 644
34 (Emerson) 375 - 448 (588)