Full opinion text
INTRODUCTION This is a class action brought by black registered voters of Boston, seeking declaratory and injunctive relief against Boston’s Mayor, City Council, School Committee, Election Commissioners and City Clerk. The suit challenges the at-large voting procedure for election of members of the Boston School Committee. Plaintiffs claim that, due to a combination of circumstances, the at-large system effectively cancels out, dilutes and minimizes the voting strength of the Boston black community in School Committee elections. This, they say, deprives black residents of constitutional and statutory rights. They seek a declaration to this effect as well as injunctive relief. The defendants disagree. They claim, first of all, that this action is barred by the doctrines of res judicata or collateral estoppel. They also defend on the merits, denying that plaintiffs’ voting power has been diluted or that they have been deprived of constitutional or statutory rights by the at-large system. The court has jurisdiction over this matter under 28 U.S.C. §§ 1343(3) and 1343(4), and 42 U.S.C. §§ 1971(d) and 1973j(f) (The Voting Rights Act). The power of this court to issue injunctive relief is granted by 28 U.S.C. §§ 2201 and 2202. This action arises under 42 U.S.C. §§ 1971, 1973, 1981 and 1983, and the First, Thirteenth, Fourteenth and Fifteenth Amendments of the United States Constitution. Hearings on the merits in this case consumed thirty days, during which time the court heard testimony from thirty-two witnesses, recorded in some 3400 pages of transcript. More than 200 exhibits were introduced. Upon review of the evidence and the law, this court holds: 1) that the plaintiffs are not barred from bringing this suit by either res judicata or collateral estoppel and 2) that the deficiencies of the challenged at-large election system do not deprive plaintiffs of any constitutional or statutory right. I RES JUDICATA AND COLLATERAL ESTOPPEL On September 9, 1969, a complaint was filed in this district in the case of Owens, et al. v. School Committee of Boston, 304 F.Supp. 1327 (D.Mass.) The plaintiffs in that case alleged that Section 18 of the Boston City Charter, insofar as it provided for the at-large election of School Committee members, violated their constitutional rights. On November 4, 1969, plaintiffs' motion for a preliminary injunction was denied. Owens v. School Committee of Boston, 304 F.Supp. 1327 (D.Mass.1969). Two and a half years later, in an unreported one-sentence order, Judge Ford allowed the defendant School Committee’s motion to dismiss for failure to state a claim. Owens v. School Committee of Boston, CA 69-934-F (D.Mass. March 31, 1972). His decision was not appealed. It is this final judgment which the defendants claim bars the present action, either by operation of the doctrine of res judicata or by collateral estoppel. Three prerequisites control the application of these two doetriries: 1) entry of a final judgment on the merits in the first action; 2) identity of the causes of action adjudicated (res judicata), or identity of the issues fully and fairly litigated (collateral estoppel), and 3) identity or privity of parties in the two actions. IB J. Moore, Federal Practice ¶ 0.401, at 11 et seq.; Lawlor v. National Screen Service Corp., 349 U.S. 322, 326, 75 S.Ct. 865, 99 L.Ed. 1122 (1955); Mendez v. Bowie, 118 F.2d 435, 440 (1st Cir.), cert. denied, 314 U.S. 639, 62 S.Ct. 76, 86 L.Ed. 513 (1941). Analyzing Owens and the instant case, it is clear that Judge Ford’s dismissal for failure to state a claim is a decision on the merits, satisfying the first prerequisite. While the thrust of the complaint in Owens, as here, was a challenge to the at-large voting system, application of both res judicata and collateral estoppel may be limited when substantial shifts occur in the factual and legal underpinnings of a cause of action. See, e. g., Chapman v. Meier, 420 U.S. 1, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975); Whitcomb v. Chavis, 403 U.S. 124, 162-63, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971). Important factual and legal developments have occurred during the seven years that have passed since the Owens decision. A 1974 referendum calling for a change in the challenged election procedure was defeated. This court and the Court of Appeals for the First Circuit have determined that there has been official de jure segregation of the Boston public schools, and that they are racially imbalanced in violation of state law. Boston’s school children have been bused as part of a federal court-ordered integration program. Moreover, since Owens, the Supreme Court has substantially clarified the guidelines to be employed by district courts in weighing the merits of challenges to at-large voting systems. White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). Finally, the parties bringing this action are neither identical to, nor in privity with those in Owens, thus precluding application of either res judicata or collateral estoppel. No class was ever certified in Owens. As a result, the decision binds only the named plaintiffs and those in privity with them. See, e. g., Board of School Commissioners of the City of Indianapolis v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975); Gonzales v. Cassidy, 474 F.2d 67 (5 Cir. 1973); Citizens for Community Action at the Local Level, Inc. v. Ghezzi, 386 F.Supp. 1, 5-6 (W.D.N.Y.1974) vacated on other grounds sub nom. Town of Lockport, New York v. Citizens for Community Action at the Local Level, Inc., 423 U.S. 808, 96 S.Ct. 11, 46 L.Ed.2d 24 (1975); Paddison v. Fidelity Bank, 60 F.R.D. 695, 697 (E.D.Pa.1973). This court, therefore, is not precluded by the decision in Owens from adjudicating this case on the merits. II LEGAL CONSIDERATIONS AFFECTING AT-LARGE ELECTION SYSTEMS Two recent Supreme Court eases present detailed guidelines to be employed in assessing the constitutionality of at-large voting systems, Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971) and White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). The plaintiffs in Whitcomb challenged, among other things, the at-large voting system for General Assembly seats in Marion County, Indiana. A three-judge panel determined that the challenged at-large system did violate the constitutional rights of Marion County blacks. In reaching this conclusion, the court found that an identifiable minority population existed within Marion County .that had special and unique interests in various areas of substantive law, but whose voting strength had been minimized by a number of factors. One such factor was that the selection of candidates had been controlled by white dominated political parties, seriously limiting the opportunity of blacks to vote for prospective legislators who would be responsive to their needs. The court concluded that redistricting of Marion County was essential to remedy the situation and, further, that reapportionment of the entire state was needed to avoid an imbalance created by the redistricting of Marion County. The Supreme Court reversed. The Court reemphasized each citizen’s inalienable right to participate fully and effectively in the political processes of his or her state, including the election of legislators. Weighing the effect of multi-member districts on this right, the Court reiterated that such districts, though suspect and subject to challenge, are not, per se, unconstitutional. [Multi-member district systems] may be subject to challenge where the circumstances of a particular case may “operate to minimize or cancel out the voting strength of racial or political elements of the voting population.” . . . But we have insisted that the challenger carry the burden of proving that multimember districts unconstitutionally operate to dilute or cancel the voting strength of racial or political elements. Id. 403 U.S. at 143-44, 91 S.Ct. at 1869, 29 L.Ed.2d at 376 [Citations omitted]. In coming to the conclusion that there were “major deficiencies” in the lower court’s decision, the Supreme Court emphasized certain key factors: 1) The challenged multi-district system was not conceived or operated as a purposeful device to further discrimination. 2) Absent evidence demonstrating less opportunity for them to participate in the political processes, the election of a disproportionately low number of ghetto residents as legislators, standing alone, did not prove invidious discrimination. Significant to the Court was the absence of any evidence that blacks in Marion County were not allowed to a) register, b) vote, c) choose a political party and participate in its affairs, including the selection of candidates. 3) The plaintiffs had not established that their interests diverged significantly from those of other citizens within the multimember district, or that the special needs of the ghetto residents had been ignored by the elected representatives. The Court observed that “the voting power of ghetto residents may have been ‘can-celled out’ as the District Court held, but this seems mere euphemism for political defeat at the polls.” Id. 403 U.S. at 153, 91 S.Ct. at 1874. On the record before us plaintiffs’ position comes to this: that although they have equal opportunity to participate in and influence the selection of candidates and legislators, and although the ghetto votes predominantly Democratic and that party slates candidates satisfactory to the ghetto, invidious discrimination nevertheless results when the ghetto, along with all other Democrats, suffers the disaster of losing too many elections. But typical American legislative elections are district-oriented, head-on races between candidates of two or more parties. As our system has it, one candidate wins, the others lose. Arguably the losing candidates’ supporters are without representation since the men- they voted for have been defeated; arguably they have been denied equal protection of the laws since they have no legislative voice of their own. This is true of both single-member and multi-member districts. But we have not yet deemed it a denial of equal protection to deny legislative seats to losing candidates, even in those so-called “safe” districts where the same party wins year after year. Id. The mere fact that one interest group or another concerned with the outcome of Marion County elections has found itself outvoted and without legislative seats of its own provides no basis for invoking constitutional remedies where, as here, there is no indication that this segment of the population is being denied access to the political system. Id. 403 U.S. at 154-55, 91 S.Ct: at 1875. While acknowledging that at-large systems did have many defects, the Court reaffirmed its prior decisions holding that multi-member districts were not necessarily unconstitutional. In our view, however, experience and insight have not yet demonstrated that multi-member districts are inherently invidious and violative of the Fourteenth Amendment. . . . The short of it is that we are unprepared to hold that district-based elections decided by plurality vote are unconstitutional in either single- or multi-member districts simply because the supporters of losing candidates have no legislative seats assigned to them. Id. at 159-160, 91 S.Ct. at 1877. The other major decision in this area is White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). The relevant portions of that opinion examined the at-large voting procedure in two Texas state legislative districts, Dallas and Bexar Counties, which, the lower court had found, had unconstitutionally diluted the voting power of blacks and Mexican-Americans. In describing the standard to be applied in assessing the impact of multi-member districts on voting rights, the Court said: Plainly, under our cases, multimember districts are not per se unconstitutional . . But we have entertained claims that multimember districts are being used invidiously to cancel out or minimize the voting strength of racial groups. . To sustain such claims, it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. The plaintiffs’ burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question— that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice. White v. Regester, Id. at 765-66, 93 S.Ct. at 2339. (Citation omitted). (Emphasis supplied). In upholding the lower court’s finding that in Dallas County the at-large system was “not equally open” to minority groups, the Supreme Court noted particularly: 1) the history of official racial discrimination in Texas that even affected the rights of blacks to register and vote; 2) the Texas rule that required a majority vote as a prerequisite to nomination in a primary; 3) the ballot “place” rule that essentially reduced at-large elections to a series of head-to-head contests; 4) the fact that only two blacks had been elected as members of the Dallas County legislative delegation since Reconstruction; 5) the fact that the Democratic Party slate was controlled by a white-dominated organization — the Dallas Committee for Responsible Government— that had no need for black support to win elections, and that demonstrated a commensurate lack of concern for black needs, and 6) the use of racial campaign tactics by white candidates to defeat black or white candidates who had overwhelming black support. Concerning the situation in Bexar County, the Court noted: 1) the existence of Mexiean-Americans as “an identifiable class for Fourteenth Amendment purposes . ” ; 2) historical mistreatment of Mexican-Americans, who made up 29% of the county’s population, in the areas of employment, economics, health and politics; 3) cultural and language barriers making participation in political and community life most difficult; 4) a history of poll taxes and highly restrictive registration procedures, with resultant low Mexican-American registration; 5) as a “residual impact of this history” the fact that only five Mexican-Americans had served in the Texas Legislature since 1880, and 6) the insensitivity of the Bexar County legislative delegation to Mexican-American interests. Reaffirming that Whitcomb “did not hold that every racial or political group has a constitutional right to be represented in the state legislature,” the Supreme Court went on to state that the District Court . did, from its own special-vantage point, conclude that the multimember district as designed and operated in Bexar County, invidiously excluded Mexican-Americans from effective participation in political life, specifically in the election of representatives to the Texas House of Representatives. On the record before us, we are not inclined to overturn these findings, representing as they do a blend of history and an intensely local appraisal of the design and impact of the Bexar County multi-member district in the light of past and present reality, political and otherwise. Id. at 769-70, 93 S.Ct. at 2341. A subsequent Fifth Circuit decision, which has applied the White and Whitcomb decisions, provides substantial additional guidance on the proper circumstances where an at-large voting system may be found violative of the Constitution. In Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973), aff’d on other grounds, sub. nom East Carroll Parish School Board and East Carroll Parish Police Jury v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976) the full bench of the Fifth Circuit reversed a panel approval of the at-large system for election of a Louisiana School Board and Police Jury. In finding the challenged system unconstitutional, the court articulated the Whitcomb and White standards as follows: Where it is apparent that a minority is afforded the opportunity to participate in the slating of candidates to represent its area, that the representatives slated and elected provide representation responsive to minority’s needs, and that the use of a multi-member districting scheme is rooted in a strong state policy divorced from the maintenance of racial discrimination, Whitcomb v. Chavis, supra, would require a holding of no dilution. Whitcomb would not be controlling, however, where the state policy favoring multi-member or at-large districting schemes is rooted in racial discrimination. Conversely, where a minority can demonstrate a lack of access to the process of slating candidates, the unresponsiveness of legislators to their particularized interests, a tenuous state policy underlying the preference for multi-member or at-large districting, or that the existence of past discrimination in general precludes the effective participation in the election system, a strong case is made. Such proof is enhanced by a showing of the existence of large districts, majority vote requirements, anti-single shot voting provisions and the lack of provision for at-large candidates running from particular geographical subdistricts. Id. at 1305. (Footnotes omitted). Based on these guidelines, the Fifth Circuit examined the long history of racial discrimination in Louisiana, particularly in the field of voting. The court noted that during a forty year period, 1922-1962, not a single black had been permitted to register in the parish. The court recognized the detrimental effect of Louisiana’s majority-vote rule in primaries on the opportunity for access to the political process by minority groups. Significant also to the Fifth Circuit conclusion was that the multi-member system was a recent innovation, unsupported by a strong state policy. In the court’s view, these factors outweighed the circumstances that some blacks had successfully sought electoral office, or that there had been no specific showing that the representatives elected by the at-large scheme neglected minority interests. The teachings of these cases cannot be compressed into any neat axioms. But their critical underlying theme is that cognizable minority groups must have a meaningful opportunity to participate in political affairs by having access to the political process. “[Ajccess to the political process [is] . . . the barometér of dilution of minority voting strength.” Zimmer v. McKeithen, supra at 1303. See also Chapman v. Meier, 420 U.S. 1, 17, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975). In determining whether political failure is an unhappy but legitimate consequence of competition, or an intolerable manifestation of invidious racial discrimination, a district court must undertake “an intensely local appraisal of the design and impact of the . . . multi-member district in the light of past and present reality, political and otherwise.” White v. Regester, supra, 412 U.S. at 769-770, 93 S.Ct. at 2341. Such an appraisal has been undertaken by this court in the instant case. The Boston School Committee election system has been analyzed in the light of certain factors, listed below, that have been determined relevant and significant in prior decided cases. None of these factors is controlling. Rather, it is the cumulative impact of the analysis that compels this court’s decision. The court has assessed the facts of this case with the following questions in mind: 1. Do blacks in Boston comprise an identifiable group for purposes of this suit? 2. Do the elected candidates look for support from blacks? 3. Are those elected aware of and responsive to the needs of blacks? 4. Has there been a history of racial campaign tactics by successful candidates? 5. Are School Committee elections characterized by bloc voting along racial lines? 6. Has there been a history of invidious racial discrimination in Massachusetts, especially in the area of voting? 7. Is the challenged election system characterized by procedures that discourage or deny access of blacks to the political process? 8. Is “bullet” voting, a tactic permitting minorities to maximize the potential of their voting power, allowed under the present system? 9. Is there a ballot “place” rule in Boston’s School Committee elections? 10. Is there a majority vote requirement before a candidate can move from a preliminary to the final election? 11. What is the proportion of successful black candidates, or black sponsored candidates, in relation to the community’s ethnic and racial population breakdown, both in the primary and final elections? 12. Who decides who may be a candidate for the Boston School Committee? Is the opportunity to run for election open to all, or is it controlled by political parties or other private power sources? 13. Do blacks find themselves isolated, culturally or otherwise, from Boston’s mainstream? 14. Is there legitimate, rational support for the state policy favoring multi-member or at-large districts? 15. Are black registration and voting rates substantially lower than the rates of the population as a whole? Ill FINDINGS OF FACT A) Background up to 1960 In 1787, Prince Hall, a black veteran of the Revolutionary War, petitioned the Massachusetts Legislature on behalf of the black citizens of Boston. Hall’s plea was that “our children . . . now receive no benefit from the free schools in the town of Boston which we think is a great grievance . . ..” His petition was ignored. Despite this lack of response, a school for black children was founded in 1798 at the home of Prince Hall. In 1800, a request to the City of Boston for support of the school was turned down. 4 In the 1820’s, this school, known then as the Smith School, was taken over by the City and operated as a separate school for black children. In 1849, the parents of children in the Smith School unsuccessfully petitioned for its abolition and for the inclusion of black children into the white school system. Litigation followed and in Roberts v. City of Boston, 59 Mass. 198 (1850), the Supreme Judicial Court found no denial of equal rights to black students stemming from the school system’s policy of segregation. More than a century ago, in 1875, the existing at-large system for electing the Boston School Committee was adopted. It has been suggested that its adoption was part of an attempt to blunt the potential political impact of the newly-arriving Irish. At the time the at-large system was adopted, blacks comprised only about I. 5% of Boston’s population, which in 1875 was in the neighborhood of 300,000. During the last half of the nineteenth century, several blacks were elected to the legislature. In 1896, however, Boston’s predominantly black ward was redistricted, with the result that no black was elected to the legislature for “many, many years.” Tr. 2404. During the same period, one black was elected to the School Committee and eleven to the City Council. Tr. 2405. In 1906, the size of the Boston School Committee was set at five. At that time the population of Boston was a little over 2% black. From the post-Civil War period to the present, blacks have been the victims of discrimination in such areas as housing, employment and education. During this same period, at least up until recent years, Irish and Italians, among other minorities, were subject to discrimination similar in nature and scope, if not intensity and impact. B) Background since 1960 Boston is divided into 22 wards and 252 precincts. In 1970, Boston’s population was 641,071, of which some 104,685 were black. Today, the vast majority of blacks in Boston live in the three contiguous neighborhoods of Roxbury, Dorchester and the South End. Blacks comprise a majority of the population in four wards: Ward 8, Roxbury, east and south, (51% black); Ward 9, Roxbury, central, South End, (74% black); Ward 12, Roxbury, east, (90% black) and Ward 14, Dorchester, west, and Mattapan, (76% black). Certain precincts of Wards 4, 10 and 11 adjoining these neighborhoods and 13, Columbia Point, have a black majority population. The remaining Boston wards have a black population of less than 15%. Although Boston contains many ethnic neighborhoods, the relative concentration of Boston’s black population in one area is greater than for any other sizeable ethnic group. The median income of the black family is considerably lower than the city-wide average, although the poorest area in Boston, Charlestown, is overwhelmingly white. Boston’s black population has suffered from a disproportionately high level of unemployment and under-employment. Generally the level and quality of education is lower for blacks than for the average inhabitant of this city. As for the physical condition of the area in which the bulk of the black people in Boston live, this court has said: . In Boston the term “Roxbury” probably carries many of the connotations which “Harlem” does in New York City. Unfortunately, streets in disrepair, burned out houses left standing, and rubbish left on side streets in parts of Roxbury cannot help but intensify the identification of parts of this section of the city. Morgan v. Hennigan, 379 F.Supp. 410, 471 (D.Mass.), aff’d sub nom. Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 1974), cert. denied 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975). Recent decisions in this Circuit have recognized continuing discrimination against blacks in a variety of areas. Associated General Contractors of Mass. Inc. v. Altshuler, 490 F.2d 9, 18 (1st Cir. 1973), cert. denied 416 U.S. 957, 94 S.Ct. 1971, 40 L.Ed.2d 307 (1974), dealt with attempts to remedy deep-rooted discrimination against blacks in the construction trades. Discriminatory practices in hiring firefighters have been struck down in Boston Chapter, N.A. A.C.P., Inc. v. Beecher, 504 F.2d 1017 (1st Cir. 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975). A similar suit has forbidden discrimination in the recruitment and hiring of Boston’s police. Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972). In Arrington v. Massachusetts Bay Transportation Authority, 306 F.Supp. 1355 (D.Mass.1969) the hiring practices for transit authority drivers and collectors were found to be discriminatory. Finally, in the course of its decision in Morgan v. Hennigan, supra, this court found racial discrimination in the Boston School Committee’s hiring of school personnel, 379 F.Supp. at 463 et seq., as well as a reluctance to eliminate or reduce the effects of such discrimination. As noted above, the black community suffers residential isolation to a much greater degree than other groups in the city. This pattern is both a cause and effect of the educational segregation that has been tolerated and even promoted by the action of the School Committee. Morgan v. Hennigan, supra, 379 F.Supp. at 470. C) School Committee Elections Since 1961 Given this background, the recent involvement of the black community in School Committee politics can best be understood through an analysis of the figures and issues prominent in the School Committee elections since 1961. 1961 Election The fundamental issue in the 1961 campaign was the quality of education offered the school children of Boston by the School Committee. Issues relating to race were not prominent. A significant force in the 1961 School Committee election was the Citizens for Boston’s Public Schools (Citizens), a multiracial organization. Its efforts were directed towards electing School Committee members who would enhance the quality of educational opportunities for all Boston’s children. In 1961, this group supported four candidates, including Melvin King, a black. The four Citizens candidates shared a campaign coffer and espoused a common platform. Twenty candidates, including the four Citizens candidates, filed nomination petitions. A preliminary election was held on September 26, 1961. All four Citizens candidates came in among the top ten and so moved on to the final election in November. In the final election, two of the Citizens candidates, William E. O’Connor and Arthur Gartland, placed second and fifth respectively and thus became members of the School Committee. Melvin King ran seventh and, therefore, was not elected. He was the only black candidate in either the preliminary or the final election that year. This was King’s first attempt at public office. He was thirty-two years old and had earned a B.S. as well as an M.A. in education. King had been actively involved in running youth programs in the South End of Boston and was well known in that area. At least at the outset of that campaign, however, his contacts with other areas of the city were limited. Notwithstanding the fact that this was his first venture as a candidate, King did very well in many areas of the city that were not predominantly black, and carried the black areas of the city with large majorities. But King suffered from the chronic, two-headed problem plaguing black political candidates, Boston’s small black population, and relatively low registration and voting rates among black citizens. A comparison of 1961 registration and voting rates of persons in predominantly black wards with the same figures in predominantly white wards demonstrates that, with some exceptions, the overall participation — factoring in both registration and voting — was less in the predominantly black wards than in the white wards. In the 1961 final election, 47% and 60% of the eligible voters in Wards 9 and 12, the predominantly' black wards at the time, were registered, versus 69% of the voters in the city as a whole. Moreover, only 30% and 25% of Wards 9 and 12 actually voted, compared to 33% of the city as a whole. The result is that, of the eligible residents of Wards 9 and 12, only 14% and 15% voted, versus 23% of the city as a whole. Most candidates on the Boston political scene look to their own ethnic group as a solid base upon which to build support. Plaintiffs have argued in fact that “support of their own community” is “a necessary ingredient to a black candidate’s victory.” Plaintiff’s brief p. 31. Black candidates are inevitably disadvantaged, therefore, by relatively low black participation in the registration and voting process. Of the ten named plaintiffs in this case, only two voted in School Committee elections in the years 1965-1975. 1963 Election In 1962, the Education Committee of the National Association for the Advancement of Colored People (NAACP) began vigorously pressing the Boston School Committee on the issue of de facto segregation. The NAACP contended that the School Committee should acknowledge the existence of de facto segregation in the Boston school system and then take steps to end it. In addition, the School Committee was pressed to deal with issues involving racial discrimination in the assignment of permanent teachers, the hiring of black teachers and administrators, and racially-biased textbooks. The NAACP continued to meet with the School Committee in 1962 and into 1963. Progress was made in some areas, but the School Committee would not concede the existence of de facto segregation in the Boston public schools. In June of 1963, black public school students supported a boycott of the Boston schools. This “stay-out” was organized by the Massachusetts Freedom Movement, a group based in the black community. The boycott received wide attention in the press. In the fall of 1963, King was again a Citizens slate candidate. It was more difficult in 1963, however, for Citizens candidates to find sympathetic voters and committed campaign workers in the “high-numbered” wards — West Roxbury, Hyde Park and Dorchester — where sentiment against the boycotts and the positions of the NAACP was high. Again, the candidates on the Citizens slate shared campaign funds and espoused a common philosophy, and again two of the Citizens candidates, William O’Connor and Arthur Gartland, were successful. Melvin King, the only black candidate, succeeded in finishing among the top ten in the preliminary election. In the final election, he finished seventh, as he had done in 1961. But, in addition to running well in the black wards, King ran first in Ward 4, second in Ward 5 and fifth in Ward 11, which were not and are not predominantly black. Again, he was hampered by the fact that the blacks registered and voted at levels substantially below the level of electoral participation of the city as a whole. For example, the percentages of eligible residents of Wards 9 and 12 who registered and voted in the final election were respectively ten percent and five percent below the city average of 42%. 1965 Election In February 1964, black students staged a second boycott of the Boston public schools to protest the continuing refusal of the School Committee to address directly the problem of de facto segregation in the city’s school system. In' January of 1964, the then chairman of the School Committee opened the year with the comment that the Boston public schools were not inferior but were plagued by an “inferior” type of student, referring to the black students. Also in 1964, Governor Peabody appointed a commission, headed by Owen Kiernan, the Chairman of the State Board of Education, to study the issue of segregation in the Boston schools. The following year, 1965, the Kiernan Commission reported that racial imbalance did exist in the Boston schools. This report led to passage in April 1965, by the Massachusetts legislature, of the Racial Imbalance Act, which mandated the racial balancing of Boston’s schools. That year Gartland, alone of the five School Committee members, urged that the recommendations of the Kiernan report be adopted so as to remedy the problem of segregation in the Boston schools. All these events received extensive coverage in the various news media. Simultaneously, efforts were begun to increase the number of black registered voters. In 1964, the Boston Election Commission, in conjunction with the League of Women Voters and the NAACP, began a mobile registration drive. This approach involved a first-time effort to reach out into the community to find and register qualified but unregistered voters. In the fall of 1964, Edward W. Brooke, a black, was elected to a second term as Attorney General of the Commonwealth of Massachusetts. He carried the city of Boston, defeating his opponent, James W. Hennigan, a white, by 123,122 votes to 115,627. In 1965, King again ran as a Citizens endorsed candidate, as did Gartland and three others. O’Connor, a Citizens endorsed candidate in 1961 and 1963, ran without the Citizens endorsement. All five Citizens candidates survived the preliminary election but lost in the final, Gartland finishing sixth and King, seventh. King did well in Wards 4, 5 and 21, in addition to the predominantly black wards. In 1965, the participation of eligible residents from predominantly black wards was virtually equal to, or only slightly below, the participation rate for the city as a whole. The rate of participation of black residents in the 1965 election was some 1.5% below that of white residents. In all succeeding elections, there has been a greater disparity between the two rates. From 1961 to 1965, tension increased over the issues relating to segregation in the Boston public schools. The Racial Imbalance Act and the possibility of busing or redistricting as methods to integrate the school system became increasingly prominent issues. Candidates, like Gartland and King, who favored the recognition and solution of the problem of segregation in the Boston schools, found substantial portions of Boston’s electorate veering away from them. King found it more difficult to attract white campaign workers and to organize in white areas. This was particularly so in those sections most adamant in their opposition to the Racial Imbalance Act, such as the Dorchester-Neponset area, Wards 15, 16 and 17, and South Boston, Wards 6 and 7. At candidates’ nights and other public appearances, all the candidates found the voters concerned with the issue of segregation and the potential methods for eliminating it. At times, it became very difficult for any candidate, white or black, to discuss in any depth general issues of quality education. 1967 and 1969 Elections No black candidate ran for the School Committee in 1967. The rates of participation for predominantly black Wards 9 and 12 were 15% and 1% below the city-wide average of 46%. The Citizens Committee did not run a slate after 1965. The tide of emotion on the issue of race abated somewhat as the State Board of Education began the task of attempting to enforce the Racial Imbalance Law. Efforts were constantly made to repeal the law, spearheaded by, among others, School Committee member Louise Day Hicks. In 1967, however, a black man, Thomas Atkins, former executive secretary of the local NAACP and closely connected with the de facto segregation controversy, ran for the Boston City Council. In Boston, the City Council elections are an exact parallel to the School Committee at-large election procedure. The only difference is that the preliminary election for the City Council reduces the field to eighteen, from which nine are selected in the final election. Out of forty-four candidates running in the 1967 preliminary election for City Council, Atkins ran fifteenth. In the final election he ran seventh out of eighteen and thus became a member of the Boston City Council, the first black member in recent history. In 1968, the Election Commission program for registering voters was drastically expanded and a specific effort was made to register black voters. The Commission initiated the practice of maintaining registration offices year round, five days a week, both at City Hall and at sixteen “little city halls” in various areas of the city. In addition, registration centers were maintained at sites selected in collaboration with the NAACP and other agencies and groups in the black community, and at major Transit Authority stations in black residential areas. By statute, Mass.Gen.Laws ch. 51 § 42B, the Election Commission is required to set up a registration station any time that ten registered voters report that there are ten unregistered voters at their principal place of activity. These registration efforts were spearheaded by Alfred Brothers, a black, who in 1968 was one of the four city election commissioners. Since 1968, the greatest part of commission resources has been dedicated to registration of voters in areas of minority population. In planning its efforts to increase voter registration, the Election Commission concentrates on those areas where registration is the lowest. Its philosophy is to locate and register potential voters, particularly minority voters. In the 1969 preliminary election for School Committee, one black candidate ran but did not survive the preliminary election. There was, therefore, no black candidate in the final election for School Committee. Twenty-eight percent of the city’s eligible residents voted, versus 18% in Ward 9 and 26% in Ward 12. In addition, in Wards 8 and 14, which by this time were substantially black, 22% and 17% of the eligible residents voted. In 1969, however, Atkins ran successfully for a second term on the Boston City Council. His victory was impressive, and his tactics in achieving it were described in detail by Paul Parks, a black man who was then one of Atkin’s campaign managers for the election, and who is now Secretary of Education of the Commonwealth of Massachusetts. Tom Atkins set up, fed into the computer the data from all other black, any other black candidates who had run for office. He fed those into the computer, where they got their votes from; then he took candidates who had been considered liberal, and he fed those into the computer. So he knew exactly every area of the city where he could get any kind of vote out of at all. And then, once he identified by precinct and street, in many cases, where these people came from, then he went out and after that vote. And he didn’t campaign anywhere else but exactly where he saw that vote being able to be gotten. So he didn’t expend his energy or waste time trying to run in areas that he didn’t see that strength coming from. And he pulled an awfully high number of his own strength out. Tr. at 282-83. Atkins’ approach in one particular area of the city was enlightening, as described by Mr. Parks. I remember in West Roxbury there was a question about some trucks going to the dump, and there had been some problems about that. And Tom took a position in favor of the citizens, and went out and actively took a position. . . And he actually went out and took part in that issue, which was a very hot issue in West Roxbury at that time. And he got a fairly decent vote out of West Roxbury for this effort. In putting together his campaign, Atkins, who at the time was a student at Harvard Law School, took advantage of resources at Harvard University, in the form of fellow students as campaign workers, advice from professors and access to computers. The result of these efforts was that, in the final election, Atkins ran second in the race for City Council, ahead of sixteen white candidates. His vote was exceeded only by that of Louise Day Hicks. 1971 Election During 1971, the desegregation controversy began to boil once more as the State Board of Education threatened to impose sanctions on Boston for failure to comply with the Racial Imbalance Act. Controversy arose over the Lee School, a newly constructed elementary school, which the School Committee had promised would be opened racially balanced. In order to accomplish this, the School Committee had planned the transfer of some 350 white students from the overcrowded Fifield and O’Hearn Schools. The School Committee at first gave the students the option of remaining at their old schools or transferring to Lee. When it was pointed out that this option would effectively eliminate the possibility of Lee opening as an integrated school, the option was eliminated by a 3-2 vote of the School Committee. In the preliminary election for School Committee, defendant Kerrigan, who had opposed withdrawal of the option, received more votes toward his re-election than any other candidate. Thereafter, at a meeting of the School Committee on September 21, School Committeeman John Craven changed his vote, creating a 3-2 majority in favor of permitting the white students to remain at their old schools. The Lee School eventually opened as a racially imbalanced, predominantly black school. The transfer of the white students to Lee School would have relieved overcrowding at both the Fifield and O’Hearn Schools and would not have required any busing. See Morgan v. Hennigan, supra, 379 F.Supp. at 431. The minutes of the September 21 School Committee meeting depict a gathering very much in the nature of a political rally. Various political candidates, including defendant, then Congresswoman, Louise Day Hicks, rose to state their support for the new majority position of the School Committee. Many speakers voiced their opposition to redistricting and the racial balancing of Boston's schools. It was in this atmosphere that Patricia Bonner-Lyons, a black woman, made her first attempt at public office. She received broad-based black support. Many white groups and organizations also endorsed Bonner-Lyons, including The Boston Globe, the Democratic Committees of Wards 4 and 5, the racially-mixed Amalgamated Meat-cutters and Butchers Workers Union and the Americans for Democratic Action. Forty percent of Bonner-Lyons’ campaign workers were white. She maintained two campaign offices, one in a white area and one in a black area of the city. Bonner-Lyons, at the time of her first race for School Committee, was twenty-three years old and had only worked in one prior campaign. She had moved to Boston in 1964, but from 1964 to 1968 had attended college in Missouri. In 1971, she was working at the New England Baptist Hospital as a medical technician. She was chairwoman of the Young Workers Liberation League, a Socialist organization. Some attempted to put a “Communist” tag on her candidacy, but Bonner-Lyons felt that the publicity she received as result of her affiliations actually benefited her politically. The thrust of Bonner-Lyons’ campaign was to emphasize the low quality of the Boston public school system. She emphasized, as well, her support of the Racial Imbalance Act. Bonner-Lyons’ views on this subject aroused vehement opposition in certain areas of the city, including South Boston, parts of Hyde Park, West Roxbury, Jamaica Plain, East Boston and Charles-town. Occasionally, she was the subject of verbal harassment. Bonner-Lyons involved herself extensively with the registration of new voters. Her campaign workers distributed literature urging registration. The Model Neighborhood Board and other groups and agencies within the city made massive efforts to register voters. Beyond this, black churchmen and the NAACP attempted to maximize black voting impact by urging that black voters “bullet vote” — that is, vote for Bonner-Lyons only. In the September preliminary election for School Committee, Bonner-Lyons finished ninth in a field of fourteen, defeating five white candidates. In the final election, she came in eighth and failed to become a member of the School Committee. As in other years, the percentage of registration and turn-out in the predominantly black areas of the city, both in the preliminary and final elections, tended to be below the registration and voting percentages for the city as a whole. Forty-three percent of the eligible residents of Boston voted, whereas 33% of Ward 8, 34% of Ward 9, 41% of ward 12, and 32% of the eligible residents of Ward 14 voted. In the fall of 1972, about one year after the Bonner-Lyons’ loss, U.S. Senator Edward Brooke won re-election to his second term, carrying the City of Boston against his white opponent, John Droney, the Middlesex County District Attorney, 93,218 votes to 81,061. 1973 Election In March of 1973, the School Committee adopted a resolution authorizing the distribution through the schools of notices publicizing an anti-busing rally to be held on April 3. In response to a law suit filed by pro-Racial Imbalance Law parents, the School Committee amended its authorization of additional rally notices by including the statement that they were prepared by the Home and School Association and not by the Committee. See Bonner-Lyons v. School Committee of City of Boston, 480 F.2d 442, 443 n. 2 (1st Cir. 1973). The Annual Report of the Home and School Association for 1972-73 states: Busing was and is the leading issue with parents and teachers throughout the City of Boston . . . . The first “Protest March” was held on April 3, 1973 and other marches followed. Bonner-Lyons was again a candidate for School Committee, the only black to run. She was the victim of physical threats and, sometimes, assaults. At a campaign event in South Boston High School, the tires of her car were punctured. The words “Nigger Lover” were written on a campaign worker’s house. She lost workers who decided that it was too dangerous to support her. Because of the shoving or jostling she received, Bonner-Lyons hired two bodyguards — one to stay with her and one with her car. Eventually she decided not to campaign in those areas of the city where she felt animosity towards her was the strongest. Despite this adversity, Bonner-Lyons ran tenth out of a field of twenty-two in the preliminary election. In the final election she finished ninth. The voter turn-out in this “off-year” election was extremely low city-wide. Only about 18% of Boston’s eligible residents voted. Even among eligible residents who were registered, only 30% voted. Thirteen percent of the eligible residents of Ward 8 voted, 13% of Ward 9, 17% of Ward 12 and 11% of Ward 14. 1975 Election During the two years preceding the 1975 election, the public’s attention was even more intensely focused on racial issues affecting Boston’s public schools. Probably the most significant relevant event in these two years was the finding by this court that Boston’s public schools had been unconstitutionally segregated by the purposeful actions of the School Committee and the superintendent of schools. Morgan v. Hennigan, 379 F.Supp. 410 (D.Mass.) aff’d sub nom. Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 1974), cert denied, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975). The finding was based on a history of school committee actions and inactions spanning a decade, involving overcrowding and underutilization of facilities, placement of portable classrooms, use of new facilities, districting, feeder patterns, open enrollment policies, and hiring and assignment of faculty and staff, which intentionally brought about and maintained a dual school system in Boston. Morgan v. Kerrigan, 401 F. Supp. 216, at 224 (D.Mass. 1975), aff’d 530 F.2d 401 (1st Cir. 1976) cert. denied, 426 U.S. 935, 96 S.Ct. 2649, 2648, 49 L.Ed.2d 386 (1976). In addition, orders from the Massachusetts Supreme Judicial Court required the School Committee to apply the plan submitted to them by the state in order to assure such compliance in the 1974 — 75 school year. This court’s decision ordered the School Committee and the superintendent to “begin forthwith the formulation and implementation of plans which shall eliminate every form of racial segregation in the public schools of Boston, including all consequences and vestiges of segregation previously practiced by the defendants.” 379 F.Supp. at 484. The description of the fall of 1974 by this court portrays the atmosphere in the city. The opening of school under the state plan in September of 1974 was accompanied by some violence and much fear. School buses were stoned, their windows broken and some children cut by shattered glass. Angry crowds of white parents and students gathered in front of schools to protest the entry of black students assigned there. Student boycotts of varying effectiveness were organized. Many students stayed home or were kept home by their parents out of fear for their personal safety. Several city high schools were the scenes of racially-connected fights and incidents. As the school year continued, violence subsided, then recurred. . . . Even today [June 5, 1975] 166 state and local police officers are stationed in the halls of South Boston High School and another 134 are stationed in the vicinity during school hours. In December a white student was stabbed inside South Boston High School by a black student. Community residents gathered and surrounded the high school building, trapping black students inside until a decoy operation by police permitted the departure of the black students. . As these events were occurring, planning was renewed for the development of a citywide desegregation plan to be implemented in September 1975. After several hearings on proposals of the parties as to its terms, the court entered an order on October 31,1974 establishing the filing date and general contents of a student desegregation plan to be filed by the defendants. . Progress reports were duly filed by the defendants, but on the deadline for filing its plan, December 16, the school committee by a three to two vote refused to approve for filing with the court the plan developed by the school department at the school committee’s direction and about which the progress reports had been made. Morgan v. Kerrigan, supra, 401 F. Supp. at 225-26 (D.Mass. 1975). The atmosphere was inflamed by the statements of certain politicians. For example, defendant Hicks, during a period of extreme racial tension in the fall of 1974, issued a written statement with two other white politicians, reading in part: Why is there resistance in South Boston. Simply stated, it is because it is against our children’s interest to send them to school in crime infested Roxbury . There are at least one hundred black people walking around who have killed white people during the past two years. They have gone unapprehended. Defendant Hicks admitted at trial that she signed this statement. She stated she did not believe the statement to be racially inflammatory. At a hearing on a motion by plaintiffs in the Morgan case to hold the three committee members in civil and criminal contempt for voting to refuse to file a proposed plan as ordered by this court, School Committeeman Kerrigan, now a City Councilor and a defendant in this case, stated as a reason for his vote: I certainly am against the forced busing of school children. I have always been against the forced busing of school children. I ran for office stating that I would never vote for a plan that involved the busing of school children. It is unfortunate that is the way our society exists, the way the housing patterns are laid out, but the only way you are going to desegregate city schools is through forced busing. Quoted in Morgan v. Kerrigan, supra, 401 F. Supp. at 226. Just prior to this court’s decision in the Morgan case there was a special plebiscite on the question: Shall any Boston public school children be assigned to a particular Boston public school on the basis of race, sex or creed without the consent of their parents or legal guardians? The response to this question was an overwhelming “No.” Voter turn-out for this plebiscite, which was held on May 21, 1974, was extremely low — only 7.4% of Boston’s eligible residents voting. Voter response in those wards that were predominantly black was divided on this question. On June 4, 1974, a special election was held to consider various plans for changing the composition and mode of election of the School Committee. The voters were offered four plans from which to choose. The alternative receiving the greatest support was to be included in a subsequent referendum. Plan I would have continued the present at-large system, but increased the number of elected School Committee members to eight, with the Mayor- as the ninth member, ex officio. Plan II suggested dividing the city into eleven “zones” with two School Committee members to be elected from each zone. Plan III stated: The school committee to be abolished; the schools to be under the charge of a superintendent appointed by the mayor with the approval of a city-wide advisory committee; decentralized administration; a neighborhood school council in each school district composed of parents, teachers and residents, and a high school council in each high school composed of parents, teachers and students. Plan IV would have elected five members at-large and six from districts. In the Special Election, Plan III was the most popular, with 10,259 votes. Plan II received 8,088 votes, Plan IV 4,035 votes and Plan I, 1,461 votes. To the despair of its supporters, Plan III (which became Question 7 on the city-wide referendum held that fall) was condemned by anti-busing forces as a concession to pro-integration and pro-busing groups. Others objected to the proposal because they saw it as “The Mayor’s Plan”, an attempted by him to increase his power. There was extensive opposition to Question 7 in the form of signs, bumperstickers, leaflets and protest rallies organized by anti-busing groups. In the November 1974 election, the proposal was defeated 77,103 votes to 48,182.. Opponents of Question 7 included the organization Restore Our Alienated Rights (ROAR), The South Boston Information Center, The East Boston Information Center, The Mass Citizens Against Forced Busing and several leading white political figures. Plaintiffs assert that the campaign concerning, and the vote in response to, the Question 7 referendum taints the existing at-large procedure for electing the School Committee with racially discriminatory intent. Much of the opposition to Question 7 certainly was directed by forces resisting attempts to integrate Boston’s schools by means of busing. But the fact that anti-busing forces urged rejection of the proposed change to the existing at-large system does not establish that system as being an invidiously discriminatory scheme. First, many of the persons who actively opposed Question 7 had supported one of the other alternatives for changing the method of electing the School Committee offered in the June special election. One figure prominent in the East Boston Information Center, which opposed Question 7, had been active in the Committee to Elect Plan II. Another School Committee member, and a defendant in this suit, was the sponsor of Plan I. Second, many persons opposed Question 7 because they viewed it as a power grab by the Mayor. Finally, the evidence is not persuasive that the opponents of Question 7 explicitly perceived that proposal as an attempt to open the School Committee door to black voters, or that their opposition was an effort to keep that door closed. During 1974 various groups and elected officials met constantly in efforts to circumvent, mitigate, subvert or directly resist the efforts of the State Board of Education and the federal court to desegregate Boston’s public schools. In April of 1974, a march to the State House, sponsored by the “Save Boston Day Committee”, urged the repeal of the Racial Imbalance Law. During the year, the City Council chambers were used as the weekly meeting place of anti-busing and anti-integration forces. Large letters spelling but the acronym ROAR appeared in the windows of City Council members Hicks and O’Neil and loomed over Government Center Plaza in the heart of the city. In November of 1974, five black state representatives and one black state senator were elected from the city of Boston. The uproar over busing and the desegregation of Boston’s schools continued into 1975, and the campaign season that year concentrated with more intensity than ever on these issues. During 1974-75, Boston’s School system had begun desegregating, pursuant to a plan formulated by the State Board of Education, and reinforced by orders of this court. This period is known as Phase I. In June of 1975, this court issued a citywide desegregation plan that became known as Phase II. See Morgan v. Kerrigan, 401 F.Supp. 216 (D.Mass.1975), aff’d 530 F.2d 401 (1st Cir.), cert. denied, 426 U.S. 935, 96 S.Ct. 2648, 2649, 49 L.Ed.2d 386' (1976). In its Phase II decision this court noted, This is an election year in Boston and candidates are already campaigning for municipal offices. Many of them are proclaiming that they are for school desegregation but against forced busing. Morgan v. Kerrigan, supra, 401 F.Supp. at 239. Throughout 1975, the School Committee continued to resist busing. In affirming this court’s extensive plan for Phase II implementation of desegregation in Boston, the Court of Appeals noted: The overriding fact of the matter is that the district court in this case has had to deal with an intransigent and obstructionist School Committee majority. These elected officials engaged in a pattern of resistance, defiance and delay. Morgan v. Kerrigan, supra, 530 F.2d at 427. On May 23, defendant Hicks stated that Judge Garrity “has shown himself to be nothing more than a tool of black power advocates who will stop at nothing to gain control of this city . . . .” The judge was described as “Wellesley white” and “a man who is Irish but doesn’t want to be” carrying out the orders of “a man who is black but would rather be white . . The latter reference was to Thomas Atkins, then local executive director of the NAACP. The opening of schools in the fall of 1975 was accompanied by an extremely high level of tension. Conditions at South Boston High School became so grave that a receiver was eventually appointed and the school’s headmaster, full-time academic administrators and football coach were transferred.