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Judge Bows Out of Boston Desegregation Case; State Board To Supervise Future Compliance

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Keeping a self-imposed deadline to end his personal supervision of Boston's desegregation case, U.S. District Judge W. Arthur Garrity Jr. last month issued orders establishing a two-year "transitional" period during which the state board is to monitor the city's schools.

The orders, which took effect Jan. 3, create a framework for reaching a "consensual resolution of disputes" that may arise over some 400 remedial orders issued throughout the 10-year-old case.

In its supervisory capacity during the transitional period, the Massachusetts Board of Education is authorized to determine the school district's compliance with court orders, in addition to negotiating and mediating disputes between the parties.

The state board's expenses will be paid from a separate account which is to be maintained in the amount of $90,000 each year, according to Judge Garrity's orders.

"These orders mark an appropriate new phase in the lengthy and complicated process toward effecting a complete remedy in this case," Judge Garrity said in a memorandum accompanying his disengagement orders. "The court now embarks on a transitional course of disengagement as it commences a process of returning to the parties the responsibility for complying with the requirements of the Constitution."

"A logical next step, after success in this transitional phase, might be to remove this case from the 'active docket,"' Judge Garrity wrote, citing the precedent established in the Swann v. Charlotte-Mecklenberg Board of Education case.

That case, the first in which busing was used to achieve racial balance in the schools, has been inac-tive in federal court for the past seven years. In the event that the state board is unable to resolve the dispute, according to Judge Garrity's orders, "a party may seek judicial resolution of the dispute."

"This framework is not a substitute for judicial action, but a screen prior to judicial action, to ensure that all possible efforts have been expended toward a satisfactory resolution," Judge Garrity wrote in his orders.

The Boston Public Schools have been under the partial control of Judge Garrity since 1974, two years after 14 black parents filed--and won--a class-action suit against the Boston School Committee charging that black students in the city's public schools were being denied equal educational opportunities.

Legally Entangled Suit

Although not the oldest, the Boston case has been one of the most complex and legally entangled desegregation suits, involving about 400 orders in the past eight years. The order to bus thousands of students caused racial violence to erupt in the city and thousands of white students to leave the public schools.

Since 1974, enrollment in Boston schools has declined by more than 30,000 students, from about 95,000 at the start of court-ordered busing to less than 60,000 last year.

Despite his desire for a "clean break" from the court's control, Robert R. Spillane, Boston's superintendent, said last week that he is pleased with the process established in Judge Garrity's orders.

Mr. Spillane said the orders are "at least an attempt to step aside. ... We now have an opportunity, while still in this transition period, to come out with some plans that have been in the works for several months," he said, referring specifi-cally to the area of student assignments. Under the terms of the orders, the state board is responsible for reviewing and approving the school department's plans in connection with student assignments, transportation, staffing, special education, bilingual education, vocational and occupational education, student discipline, institutional pairings, and several other areas.

"I believe we can work with the state board of education," Mr. Spillane said, adding that the department understands "education better than a federal judge."

A more serious problem, according to Mr. Spillane, is the existing conflict between the two attorneys representing the black plaintiffs. "We can't have serious negotiations unless [Larry J. Johnson of the Center for Law and Education and Thomas I. Atkins, general counsel for the National Association for the Advancement of Colored People] put down their guns and go to the peace table," he added.

Mr. Johnson said last week that he has not met with Mr. Atkins, whom Judge Garrity permitted to intervene on behalf of the black plantiffs last year during the consent-decree process. Mr. Atkins opposes the freedom of choice in student assignments that is advocated by Mr. Johnson. Speaking about Judge Garrity's orders, Mr. Johnson said that he still has some concern about the court's disengagement because "the plaintiffs do not share the confidence the court has in the school department." But he added, "We are pleased with the mechanism set up giving access to the court."

"We have no problem with giving the school department a two-year chance," Mr. Johnson said. "The question is whether they will comply."

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