Memoranda from Coke to Ellis Re: Bifurcation of Desegregation Cases in the Federal Courts; Attorney Notes

    MEMORANDUM 

70: Ron L. Ellis 

FROM: Tanya E. Coke 

RE: Bifurcation of school desegregation cases in the 
federal courts 

DATE: July 20, 1992 

A review of opinions in several major school 

desegregation cases suggests that bifurcating trials into a 

liability and a remedy phase is a common, if not ordinary, method 

of proceeding within the federal courts. I found no opinions 

that explicitly addressed the propriety of bifurcation in the 

context of a desegregation case, or that suggested that counsel 

had formally moved to bifurcate the proceedings. Nevertheless, 

in all of the opinions included herein, the district court 

restricted its initial ruling to the issue of the defendant 

school boards’ liability and ordered further proceedings on the 

question of remedies. 
’ 

In fact, the U.S. Supreme Court in Brown v. Bd. of 
  

Education considered the issue of remedy separately from their 
  

finding that the Topeka Board of Education had practiced 

unconstitutional segregation. In Brown I, 347 U.S. 483 (1954), 

the Court wrote that in hearing the consolidated cases, "the 

consideration of agprpriate relief was necessarily subordinated 

to the primary question -- the constitutionality of segregation 

in public education." Id. at 495. After deciding the question 

of liability in favor of the plaintiffs, it ordered the cases 

 



  

2 

restored to the docket and requested the parties to present 

further argument on the question of relief as previously 

formulated by the Court.'Id. See also Brown II, 349 U.S. 298, 
  

299 (1955). The Court reasoned that a separate and more detailed 

briefing was needed "in order that we may have the full 

assistance of the parties in formulating decrees." Id. Among 

the remedial questions to be decided in Brown II was how the 
Ld 
  

district courts should be instructed to arrive specific terms for 

decrees in school desegregation cases. Brown, 347 U.S. at 495, 

n. 13. Ultimately, the Court held that trial courts must work 

with school officials in shaping remedies ("school authorities 

have primary responsibility for elucidating, assessing and 

solving these problems . . .). Brown, 349 U.S. 298, 299 (1958), 

In Taylor v. Board of Education, 191 F.Supp. 181 
  

(S.D.N.Y. 1961), a suit brought by black parents against the New 

  

! The Court framed the remedial issues as follows: "Assuming 

it is decided that segregation in public schools violates the 

Fourteenth Amendment 
(a) would a decree necessarily follow providing that, 

witin the limits set by normal geographic school 

districting, Negro children should forthwith be admitted 

to schools of their choice, or (b) may this Court, in the 

exercise of its equity powers, permit an effective 

gradual adjustment to be brought about from existing 

segregated systems to a system not based on color 

distinctions? . . . (a) should this Court formulate 

detailed decrees in these cases; (b) if so, what specific 

issues should the decres reach; (c) should this Court 

appoint a special master to hear evidence with a view to 

recommending specific terms for such decrees; (d) should 

this Court remand to the courts of firs instance with 

directions to frame decrees in these cases, and if so 

what general directions should the decrees of this Court 

include and what procedures should the courts of first 

instance follow in arriving at the specific terms of more 

detailed decrees?" Brown, 347 U.S. at 495. 

 



  

| » 

%® 0 

3 

Rochelle Board of Education, the district court held that the 

defendants had intentionally maintained a segregated school 

system in violation of onstituion and the dictates of Brown v. 
  

v 

Board of Education. While the opinion is unclear as to whether 
  

the court actually barred testimony as to remedy during the 

course of the trial, in concluding his order Judge Kaufman wrote 

that it was "unnecessary at this time to determine the extent to 

which each of the items of the relief requested by plaintiffs 

will be afforded." Id. at 198. Instead, the court stated that 

it would defer consideration of remedies until the school board 

had presented a plan for desegregation, "said Yesesvenation to 

begin no later than the start of the [following] school year." 

Id. When school officials later tried to appeal the order and 

extend the date set for filing a desegregation plan, the Second 

Circuit dismissed the action for want of jurisdiction on the 

basis that the district court’s order was not yet final. Taylor 

v. Board of Education, 288 F.2d 600, 602 (2d Cir. 1961). The 
’ 

  

court held that when a district court has simply found 

segregation by a school board to be unconstitutional and has 

directed the board promptly to submit a plan for remedying it, 

without any further "injunction," the decision is not complete, 

and therefore not appealable. Id. at 602. 

In 1971, the U.S. Supreme Court held in Swann v. Charlotte- 
  

Mecklenburg Bd. of Ed, 402 U.S. 1, 28 L.Ed.2d 554, 91 S.Ct. 1267 
  

(1971), that a school board has broad discretion to formulate 

educational policy, including plans to remedy racial segregation 

 



  

4 

within their school systems. The court in Swann wrote that 

"absent a finding of a constitutional violation," such remedy 

formulation "would not be within the authority of a federal 

court." Swann, 402 U.S. at 16. Only where a school system has 

defaulted on their obligation to proffer an acceptable plan for 

desegregation, the court held, would the courts have the power to 

fashion a remedy to assure a unitary school system. Id. This 

language in Swann appears to endorse, if not mandate, a two stage 

proceeding in which school authorities, once held liable under 

Brown, are to be afforded the opportunity to formulate and 

present a plan before the district court orders remedial action. 

Since Swann, the district courts have continued to hear 
  

cases in more or less informally bifurcated proceedings. In 

United States v. Board of School Commissioners of Indianapolis, 
  

332 F.Supp. 655 (S.D. Ind. 1971), aff’d, 474 F.2d 81 (7th Cir. 

1973), cert. denied, 413 U.S. 920 (1973), the district. court 
  

prihcipally addressed itself to two issues relating to liability: 

whether the school district had deliberately pursued a policy of 

segregating black students from white students as of the date of 

the Brown I decision; and if so, whether the Board had since 

changed its policy to eliminate such desegregation. In its 

opinion finding the school board in violation of the Fourteenth 

Amendment, the district court did order the board to adopt a 

number of specific remedies immediately. These included the 

reassignment of faculty, the relocation of a black high school, 

and the implementation of a voluntary transfer policy that would 

 



  

5 

enhance desegregation. Id. at 678, 680. However, the court 

stated that it also "[r]ecogniz[ed] that the orders thus far made 

will not result in significant desegregation of majority black 

schools immediately, unless the voluntary transfer . . . policies 

are unusually successful," and therefore ordered defendants to 

file comprehensive plans for racial desegregation with the court 

before the start of the next school term. Id. at 681. The court 

announced that it would hear and decide the question of further 

remedies separately in a later proceeding. Id. In an opinion 

issued four years later, the district court ordered the busing of 
¥ 

black students to outlying districts. U.S. v. Bd. of Sch. 
  

commissioners of Indianapolis, 419 F.Supp. 180 (1975). This and 
  

subsequent orders on the issue of appropriate remedies were also 

separately appealed. See U.S. v. Bd. of Sch. Commissioners, 541 
  

F.2d 1211 (1976), vacated and remanded, 429 U.S. 1068, 97 S.Ct. 
  

802, 650 L.Ed.2d 786 (19717).% 

* The litigation around the desegregation of Boston’s public 

schools in the mid-1970’s explicitly followed dual lines of 

inquiry. In its initial order, the district court described the 

15-day trial in Morgan v. Hennigan, 379 F.Supp. 410 (D.Mass. 
  

1974) as one that "concerned only the liability issues of the 

  

2 The U.S. Supreme Court remanded the case for reconsi- 

deration of mixed questions of liability and remedy in what became 

an interdistrict case (i.e., whether the district court had 

jurisdiction to compel desegregation remedies affecting outlying 

suburban corporations). See School Bd. of Indianapolis, 573 F.2d 
  

400 (7th Cir. 1978); 456 F.Supp. 183 (S.D. Ind. 1978); 506 F.Supp. 

657 (S.D. Ind. 1979) (remedy only). 

 



  

: L 

6 

case, as contrasted with issues relating to the possible remedy." 

Id. at 416. Judge Garrity wrote that "[t]he court’s primary task 

is to determine whether the defendants have intentionally and 

purposefully caused or maintained racial segregation in 

meaningful or significant segments of the Boston public school 

system in violation of the Fourteenth Amendment." Id. at 425. 

The court went on to examine for evidence of intentional 

discrimination the school board’s policies toward districting, 

student transfers, the assignment and promotion of faculty and 

staff, utilization of facilities, and admission to its vocational 

and college preparatory campuses. After finding that the 

defendants had purposefully acted with discriminatory intent to 

segregate, Judge Garrity declared that "the defendants are under 

an ’affirmative obligation’ to reverse the consequences of their 

unconstitutional conduct." Id. at 482. The court broadly 

outlined several "remedial guidelines" for fulfilling this 

obligation, but scheduled for the following week a separate 

hearing to consider the details of a state plan for desegregation 

already then under proposal.®? Id. at 483. Judge Garrity also 

ordered defendants to "begin forthwith the formulation and 

implementation of plans which shall eliminate every form of 

  

3 These remedial guidelines were limited to broad statements 

to the effect, for example, that the primary responsibility for 

desegregation lay with the school committee; that school 

authorities have the affirmative duty to take whatever steps are 

necessary (including busing, redistricting, and involuntary school 

and faculty assignments) to achieve a unitary system; and that the 

time allowed for compliance would be only that reasonably necessary 

to design and implement a remedial plan. Id. at 482. 

 



  

7 

racial segregation in the public schools of Boston . . . I 14. 

at 484. 

The appeal to the First Circuit was similarly limited to the 

district court’s findings on liability because (in the words of 

the court of appeals) the district court, "(h]aving found such 

deliberate design [to segregate], left the question of remedy to 

  
a future time." Morgan v. Kerrigan, 509 F.2d 580, 583 (1st Cir. 

1974). In a separate opinions issued some two years later, the 

district court addressed the remedy phase of the Boston school 

  

case. Morgan v. Kerrigan, 401 F.Supp. 216 (D.Mass. 1975). At 

{ 

issue on appeal to the First Circuit in Morgan v. Kerrigan, 530 
  

F.2d 401 (1st Cir. 1976) was whether the defendants could 

present, "for purposes of tailoring remedies," evidence of 

residential segregation during the remedy phase of the case, once 

the liability phase had been concluded. Id. at 407. The court 

of appeals described the history of the bifurcated proceedings in 

the case as follows: 

"The liability phase came to an end in 1974 with a 

district court finding of substantial segregation in 

the entire school system intentionally brought about 

and maintained by official action over the years. 

Morgan v. Hennigan, 379 F.Supp. 410 (D.Mass. 1974). We 

affirmed, Morgan v. Kerrigan, 509 F.2d 580 (lst Cir. 

1974), and the Supreme Court denied certiorari, 421 

U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975). While 

the liability issues were being considered on appeal, 

the district court, after its decision on June 21, 

1974, began its exploration of appropriate remedies. 

The period from June, 1974, to May, 1975, was occupied 

with the addition of parties to the litigation, 

hearings as to the nature, scope and objectives of a 

plan, submission and criticism of various plans, 

consideration of all proposals and preparation of a 

plan by a panel of masters, and, finally, the issuance 

of a revised plan by the district court on May 10, 

  

  

 



  

8 

1975, followed by a Memorandum Decision and Remedial 

Order. 

Morgan, 530 F.2d at 405-406. One of the defendant organizations 

had attempted to file a desegregation plan based on the theory 

that segregation in certain schools was the result of residential 

housing patterns, rather than of any official or intentional 

action of the school board. The defendants argued that the court 

should reopen the proceedings to consider, for purposes of 

tailoring remedies, the impact of demographic conditions on 

particular schools. The district court refused to accept this 

plan and its supporting evidence, and the Court of Appeals for 

the First Circuit affirmed, on grounds that this "evidence was 

irrelevant at the remedy stage of the case and that the issue 

raised by the offer had been litigated and finally decided in the 

liability phase of these proceedings." Id. at 407. The First 

Circuit ultimately affirmed the district court’s plan and 

implementation order for the remedial stage ("Phase II") of the 

litigation. Id. at 431. 

Hart v. Community School Bd. of Brooklyn, 497 F.2d 1027 (2d 
  

Cir. 1974) is another of several cases which raised the question 

of whether a district court’s order, finding liability but only 

ordering the submission of remedial plan, was appealable. See 

also Tavlor v. Board of Ed. of New Rochelle, supra. The district 
  

court in Hart (in an oral opinion) had found that the Coney 

Island junior high school at issue was unconstitutionally 

segregated. Without entering a final order or issuing an 

 



  

9 

injunction, the district court directed the school board and city 

housing authority to submit desegregation plans within the next 

year. Judge Weinstein later held hearings on the remedial plans 

submitted, rejected them as inadequate, and postponed the date 

for desegregation pending the formulation of a new plan to be 

developed with the assistance of a special master. Hart, 383 

F.Supp. 699 (E.D.N.Y. 1974)* The black and Hispanic plaintiffs 

in the case here attempted to appeal from the court’s 

postponement of the desegregation. The 2nd Circuit dismissed the 

  appeal, holding that as per Taylor v. Bd. of Ed. of New Rochelle, 

Y 

288 F.2d 600 (2nd Cir. 1961), a district court’s opinion that 

ruled on the question of liability while reserving the issue of 

remedy, was not to be considered a final order. 

In Reed v. Rhodes, 422 F.Supp. 708 (N.D. Ohio 1976), black 
  

parents and the NAACP brought suit against city and state 

educational officials, alleging they had intentionally 

perpetuated racial segregation of students in the Cleveland 

public schools. While the district court made no mention of the 

trial having been formally bifurcated, its lengthy opinion 

  

4 Judge Friendly of the Second Circuit characterized the lower 

court opinion as stating that "in accordance with the invariable practice, 

local school authorities must be given an opportunity to prove an 

acceptable plan for eliminating the illegal segregation at this 

school.’" Id. at 1029 (emphasis added). After receiving the 

recommendations of the school board and special master, the 

district court ultimately ordered the school to implement a magnet 

program that would attract majority students and, failing that, to 

institute a program of busing. Hart, 383 F.2d 769 (E.D.N.Y. 1974). 

 



: @ 

  

10 

addressed only issues of liability. After finding that the 

Cleveland Board of Education had intentionally maintained a 

segregated school system, chief Judge Battisti appointed a 

special master to assist the court and "legitimately affected 

interest groups" in fashioning a remedy. Id. at 797. The court 

ordered the city and state school boards to submit a proposed 

plan for desegregation within 90 days. In Reed, the court also 

took the step of certifying the action for an interlocutory 

appeal, writing that "there [was] substantial ground for 

difference of opinion" in the case. Id. The court here 

suggested that, given this circumstance, the defendants” ability 

to appeal the finding of liability before the conclusion of the 

remedy stage "may materially advance the ultimate termination of 

the litigation." Id. 

In fact, a protracted series of appeals followed the initial 

opinion in Reed. Nevertheless, these appeals also proceeded in a 

bifurcated manner, addressing issues of liability and remedy 
Ld 

severally. See Reed v. Rhodes, 559 F.2d 1220 (1977) (remanding 
  

for reconsideration re: liability); 455 F.Supp. 546 (N.D. Ohio 

1978) (liability); 607 F.2d 748) (remanding for reconsideration re: 

state officials’ liability); cert. denied, 445 U.S. 935, 100 
  

s.ct. 1329, 63 L.Ed. 2d 770 (1980); 500 F. Supp. 404 (N.D. Ohio 

1980) (liability); 662 F.2d 1219 (1981) (affirming finding of 

liability). only after issuing its second opinion regarding 

liability (on remand by the 6th circuit for reconsideration in 

light of several intervening Supreme Court decisions), did the 

 



  

11 

district court two years later enter a remedial order. See Reed 
  

v. Rhodes, 455 F.Supp. 569 (N.D. Ohio 1978); 581 F.2d 570 
  

(1978) (modifying a subsequent, unpublished remedial order by 

district court); 500 F.Supp. 363 (N.D. Ohio 1981) (remedy) . 

This practice of bifurcated proceedings appears to have 

continued into the "modern" era of desegregation litigation. 

Since the Court’s ruling in Milliken v. Bradley, 433 U.S. 267, 97 
  

S.Ct. 2749, 53 L.Ed.2d 745 (1977), schools desegregation 

litigation has increasingly focused on the scope of relief and 

the legality of plans for its financing. The procedural history 

of these cases suggests that the complexity of the issues 

involved -- for example, the creation of magnet schools, 

compensatory programs and cost sharing arrangements between state 

and local boards -- have made separate hearings on remedy 

something of a necessity. In Milliken, for example, the federal 
  

district court in Detroit conducted extensive hearings in regard 

to remedy before ordering that compensatory programs in reading, 

teacher training and counseling be instituted at state expense. 

See Milliken, 433 U.S. at 267. It was this remedial order that 
  

became the focus of appeal to the U.S. Supreme Court in Milliken 
  

1, 418 U.S. 717, 94 8.Ct. 3112, 41 L.Bd.24 (1974) and Milliken 
  

IX, 433 U.S. 267, (1977). In Jenkins v. Missouri, a relatively 
—   

recent desegregation case from Kansas City, the district court 

held the State of Missouri and the Kansas City school board 

liable for unconstitutional acts of segregation and ordered the 

defendants to submit a plan for achieving a unitary school 

 



  

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12 

system. Jenkins, 593 F. Supp 1485, 1506 (W.D.Mo. 1984). After 

separate hearing on remedy, the court held that need for a 

unitary system justified a broad program of remedies to attract 

and maintain nonminority enrollment, as well as an income tax 

surcharge necessary to finance it. Jenkins, 639 F.Supp. 19 

(W.D.Mo. 1985), aff’d 855 F.2d 1295 (38th Cir. 1988). .The court 

later held additional hearings and issued separate orders on 

other aspects of the remedial plan, including the school 

district’s long-range program for capital improvements. See 

Jenkins, 672 F.Supp. 400 (W.D.Mo. 1987). Finally, in a recent 

case from the Second Circuit, the district court found City of 

Yonkers’ officials and school board members liable for 

intentional segregation in the city’s subsidized housing and 

public schools. Yonkers v. Bd. of Education, 624 F.Supp. 1276 
  

(S.D.N.Y. 1985). After receiving proposals from the parties and 

conducting an evidentiary hearing, the court issued a remedy 

order, reported at 635 F.Supp. 1538 and 1577 (1986). The court 

of appeals for the Second Circuit affirmed the finding of 

liability and upheld the district court’s order that magnet 

schools be implemented forthwith. Yonkers, 837 F.2d 1181 (2nd 

cir. 1987), cert. denied, 486 U.S. 1055, 108 S.Ct. 2821, 100 
  

L.Ed.2d 922 (1988). 

TEC 

 



  

MEMORANDUM 

TO: Ron L. Ellis 

FROM: Tanya E. Coke 

RE: Bifurcation of school desegregation cases in the 
federal courts 

DATE: July 15, 1992 

A review of opinions in several major school 

desegregation cases suggests that bifurcating trials into a 

liability and a remedy phase is a common, if not ordinary, method 

of proceeding within the federal courts. I found no opinions 

that explicitly addressed the propriety of bifurcation in the 

context of a desegregation case, or that suggested that counsel 

had formally moved to bifurcate the proceedings. Nevertheless, 

in all of the opinions included herein, the district court 

restricted its initial ruling to the issue of the defendant 

school boards’ liability and ordered further proceedings on the 

question of remedies. 

In Taylor v. Board of Education, 191 F.Supp. 181 
  

(S.D.N.Y. 1961), a suit brought by black parents against the New 

Rochelle Board of Education, the district court held that the 

defendants had intentionally maintained a segregated school 

system in violation of Constitution and the dictates of Brown v. 
  

  

Board of Education, 347 U.S. 483, 98 L.Ed.2d 873 (1954). While 

the opinion is unclear as to whether the court actually barred 

testimony as to remedy during the course of the trial, in 

concluding his order Judge Kaufman wrote that it was "unnecessary 

 



  

2 

at this time to determine the extent to which each of the items 

of the relief requested by plaintiffs will be afforded." Id. at 

198. Instead, the court stated that it would defer consideration 

of remedies until the school board had presented a plan for 

desegregation, "said desegregation to begin no later than the 

start of the [following] school year." Id. When school 

officials later tried to appeal the order and extend the date set 

for filing a desegregation plan, the Second Circuit dismissed the 

action for want of jurisdiction on the basis that the district 

court’s order was not yet final. Taylor v. Board of Education, 
  

288 F.2d 600, 602 (2d Cir. 1961). The court held that when a 

district court has simply found segregation by a school board to 

be unconstitutional and has directed the board promptly to submit 

a plan for remedying it, without any further "injunction," the 

decision is not complete, and therefore not appealable. Id. at 

602. 

In 1971, the U.S. Supreme Court held in Swann v. Charlotte- 
  

Mecklenburg Bd. of Fd, 402 U.S. 1, 28 L.E4d.2d 554, 9) S.Ct. 1267 
  

(1971), that a school board has broad discretion to formulate 

educational policy, including plans to remedy racial segregation 

within their school systems. The court in Swann wrote that 

"absent a finding of a constitutional violation," such remedy 

formulation "would not be within the authority of a federal 

court." Swann, 402 U.S. at 16. Only where a school system has 

defaulted on their obligation to proffer an acceptable plan for 

desegregation, the court held, would the courts have the power to 

 



  

3 

fashion a remedy to assure a unitary school system. Id. This 

language in Swann appears to endorse, if not mandate, a two stage 
  

proceeding in which school authorities, once held liable under 

Brown, are to be afforded the opportunity to formulate and 

present a plan before the district court orders remedial action. 

Since Swann, the district courts have continued to hear 
  

cases in more or less informally bifurcated proceedings. In 

United States v. Board of School Commissioners of Indianapolis, 
  

332 F.Supp. 655 (S.D. Ind. 1971), aff’qd, 474 F.24 81 (7th Cir. 

1973), cert. denied, 413 U.S. 920 (1973), the district court 
  

principally addressed itself to two issues relating to liability: 

whether the school district had deliberately pursued a policy of 

segregating black students from white students as of the date of 

the Brown I decision; and if so, whether the Board had since 

changed its policy to eliminate such desegregation. In its 

opinion finding the school board in violation of the Fourteenth 

Amendment, the district court did order the board to adopt a 

number of specific remedies immediately. These included the 

reassignment of faculty, the relocation of a black high school, 

and the implementation of a voluntary transfer policy that would 

enhance desegregation. Id. at 678, 680. However, the court 

stated that it also "[r]ecogniz[ed] that the orders thus far made 

will not result in significant desegregation of majority black 

schools immediately, unless the voluntary transfer . . . policies 

are unusually successful," and therefore ordered defendants to 

file comprehensive plans for racial desegregation with the court 

 



A 

before the start of the next school term. Id. at 681. The court 

announced that it would hear and decide the question of further 

remedies separately in a later proceeding. Id. In an opinion 

issued four years later, the district court ordered the busing of 

black students to outlying districts. U.S. v. Bd. of Sch. 
  

Commissioners of Indianapolis, 419 F.Supp. 180 (1975). This and 
  

subsequent orders on the issue of appropriate remedies were also 

separately appealed. See U.S. v. Bd. of Sch. Commissioners, 541 
  

F.2d 1211 (1976), vacated and remanded, 429 U.S. 1068, 97 S.Ct. 
  

802, 650 L.Ed.2d 786 (1977). 

The litigation around the desegregation of Boston’s public 

schools in the mid-1970’s explicitly followed dual lines of 

inquiry. In its initial order, the district court described the 

15-day trial in Morgan v. Hennigan, 379 F.Supp. 410 (D.Mass. 
  

1974) as one that "concerned only the liability issues of the 

case, as contrasted with issues relating to the possible remedy." 

Id. at 416. Judge Garrity wrote that "[t]he court’s primary task 

is to determine whether the defendants have intentionally and 

purposefully caused or maintained racial segregation in 

meaningful or significant segments of the Boston public school 

system in violation of the Fourteenth Amendment." Id. at 425. 

  

! The U.S. Supreme Court remanded the case for reconsi- 
deration of mixed questions of liability and remedy in what became 
an interdistrict case (i.e., whether the district court had 
jurisdiction to compel desegregation remedies affecting outlying 
suburban corporations). See School Bd. of Indianapolis, 573 F.2d 
400 (7th cir. 1978); 456 F.Supp. 183 (S.D. Ind. 1978); 506 F.Supp. 
657 (S.D. Ind. 1979) (remedy only). 

   



5 

The court went on to examine for evidence of intentional 

discrimination the school board’s policies toward districting, 

student transfers, the assignment and promotion of faculty and 

staff, utilization of facilities, and admission to its vocational 

and college preparatory campuses. After finding that the 

defendants had purposefully acted with discriminatory intent to 

segregate, Judge Garrity declared that "the defendants are under 

an ’affirmative obligation’ to reverse the consequences of their 

unconstitutional conduct." Id. at 482. The court broadly 

outlined several "remedial guidelines" for fulfilling this 

obligation, but scheduled for the following week a separate 

hearing to consider the details of a state plan for desegregation 

already then under proposal.? Id. at 483. Judge Garrity also 

ordered defendants to "begin forthwith the formulation and 

implementation of plans which shall eliminate every form of 

racial segregation in the public schools of Boston . . . 

at 484. 

The appeal to the First Circuit was similarly limited to the 

district court’s findings on liability because (in the words of 

the court of appeals) the district court, "[h]aving found such 

deliberate design [to segregate], left the question of remedy to 

  

2 These remedial guidelines were limited to broad statements 
to the effect, for example, that the primary responsibility for 
desegregation lay with the school committee; that school 
authorities have the affirmative duty to take whatever steps are 
necessary (including busing, redistricting, and involuntary school 
and faculty assignments) to achieve a unitary system; and that the 
time allowed for compliance would be only that reasonably necessary 
to design and implement a remedial plan. Id. at 482.  



  

  

6 

a future time." Morgan v. Kerrigan, 509 F.2d 580, 583 (1st Cir. 

1974). In a separate opinions issued some two years later, the 

district court addressed the remedy phase of the Boston school 

case. Morgan v. Kerrigan, 401 F.Supp. 216 (D.Mass. 1975). At 
  

issue on appeal to the First Circuit in Morgan v. Kerrigan, 530 
  

F.2d 401 (1st Cir. 1976) was whether the defendants could 

present, "for purposes of tailoring remedies," evidence of 

residential segregation during the remedy phase of the case, once 

the liability phase had been concluded. Id. at 407. The court 

of appeals described the history of the bifurcated proceedings in 

the case as follows: 

"The liability phase came to an end in 1974 with a 
district court finding of substantial segregation in 
the entire school system intentionally brought about 
and maintained by official action over the years. 
Morgan v. Hennigan, 379 F.Supp. 410 (D.Mass. 1974). We 
affirmed, Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 
1974), and the Supreme Court denied certiorari, 421 
U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975). While 

the liability issues were being considered on appeal, 
the district court, after its decision on June 21, 
1974, began its exploration of appropriate remedies. 
The period from June, 1974, to May, 1975, was occupied 
with the addition of parties to the litigation, 
hearings as to the nature, scope and objectives of a 
plan, submission and criticism of various plans, 
consideration of all proposals and preparation of a 
plan by a panel of masters, and, finally, the issuance 
of a revised plan by the district court on May 10, 
1975, followed by a Memorandum Decision and Remedial 
Order. 

  

  

Morgan, 530 F.2d at 405-406. One of the defendant organizations 

had attempted to file a desegregation plan based on the theory 

that segregation in certain schools was the result of residential 

housing patterns, rather than of any official or intentional 

action of the school board. The defendants argued that the court 

 



  

7 

should reopen the proceedings to consider, for purposes of 

tailoring remedies, the impact of demographic conditions on 

particular schools. The district court refused to accept this 

plan and its supporting evidence, and the Court of Appeals for 

the First Circuit affirmed, on grounds that this "evidence was 

irrelevant at the remedy stage of the case and that the issue 

raised by the offer had been litigated and finally decided in the 

liability phase of these proceedings." Id. at 407. The First 

Circuit ultimately affirmed the district court’s plan and 

implementation order for the remedial stage ("Phase II") of the 

litigation. Id. at 431. 

Hart v. Community School Bd. of Brooklyn, 497 F.2d 1027 (2d 
  

Cir. 1974) is another of several cases which raised the question 

of whether a district court’s order, finding liability but only 

ordering the submission of remedial plan, was appealable. See 

also Taylor v. Board of Ed. of New Rochelle, supra. The district 
  

court in Hart (in an oral opinion) had found that the Coney 

Island junior high school at issue was unconstitutionally 

segregated. Without entering a final order or issuing an 

injunction, the district court directed the school board and city 

housing authority to submit desegregation plans within the next 

year. Judge Weinstein later held hearings on the remedial plans 

submitted, rejected them as inadequate, and postponed the date 

for desegregation pending the formulation of a new plan to be 

developed with the assistance of a special master. Hart, 383 

 



  

8 

F.Supp. 699 (E.D.N.Y. 1974)%® The black and Hispanic plaintiffs 

in the case here attempted to appeal from the court’s 

postponement of the desegregation. The 2nd Circuit dismissed the 

appeal, holding that as per Taylor v. Bd. of Ed. of New Rochelle, 
  

288 F.2d 600 (2nd Cir. 1961), a district court’s opinion that 

ruled on the question of liability while reserving the issue of 

remedy, was not to be considered a final order. 

In Reed v. Rhodes, 422 F.Supp. 708 (N.D. Ohio 1976), black   

parents and the NAACP brought suit against city and state 

educational officials, alleging they had intentionally 

perpetuated racial segregation of students in the Cleveland 

public schools. While the district court made no mention of the 

trial having been formally bifurcated, its lengthy opinion 

addressed only issues of liability. After finding that the 

Cleveland Board of Education had intentionally maintained a 

segregated school system, Chief Judge Battisti appointed a 

special master to assist the court and "legitimately affected 

interest groups" in fashioning a remedy. Id. at 797. The court 

ordered the city and state school boards to submit a proposed 

  

3 Judge Friendly of the Second Circuit characterized the lower 
court opinion as stating that "in accordance with the invariable practice, 
local school authorities must be given an opportunity to prove an 
acceptable plan for eliminating the illegal segregation at this 
school.’" Id. at 1029 (emphasis added). After receiving the 
recommendations of the school board and special master, the 
district court ultimately ordered the school to implement a magnet 
program that would attract majority students and, failing that, to 
institute a program of busing. Hart, 383 F.2d 769 (E.D.N.Y. 1974). 

 



  

9 

plan for desegregation within 90 days. In Reed, the court also 

took the step of certifying the action for an interlocutory 

appeal, writing that "there [was] substantial ground for 

difference of opinion" in the case. Id. The court here 

suggested that, given this circumstance, the defendants’ ability 

to appeal the finding of liability before the conclusion of the 

remedy stage "may materially advance the ultimate termination of 

the litigation." Id. 

In fact, a protracted series of appeals followed the initial 

opinion in Reed. Nevertheless, these appeals also proceeded in a 

bifurcated manner, addressing issues of liability and remedy 

severally. See Reed v. Rhodes, 559 F.2d 1220 (1977) (remanding 
  

for reconsideration re: liability); 455 F.Supp. 546 (N.D. Ohio 

1978) (liability); 607 F.2d 748) (remanding for reconsideration re: 

state officials’ liability); cert. denied, 445 U.S. 935, 100   

S.Ct. 1329, 63 L.Ed. 2d 770 (1980); 500 F. Supp. 404 (N.D. Ohio 

1980) (liability); 662 F.2d 1219 (1981) (affirming finding of 

liability). Only after issuing its second opinion regarding 

liability (on remand by the 6th circuit for reconsideration in 

light of several intervening Supreme Court decisions), did the 

district court two years later enter a remedial order. See Reed 
  

  Vv. Rhodes, 455 F.Supp. 569 (N.D. Ohio 1978): 581 F.24 570 

(1978) (modifying a subsequent, unpublished remedial order by 

district court); 500 F.Supp. 363 (N.D. Ohio 1981) (remedy). 

TEC