Appeal from order of the United States District Court for the Eastern District of New York, Edward R. Neaher, J., granting one-year stay of judgment declaring New York City's Chapter 1 program unconstitutional and denying motion to clarify and resettle judgment. Affirmed.
Before: FEINBERG, Chief Judge, TIMBERS and NEWMAN, Circuit Judges.
Appellants, federal taxpayers, challenge an order of the United States District Court for the Eastern District of New York, Edward R. Neaher, J., which stayed for one year its judgment declaring unconstitutional New York City's Chapter 1 program.*fn1 They also appeal from Judge Neaher's refusal to clarify and resettle the judgment. For the reasons stated below, we affirm the order of the district court.
This suit was filed in the district court in 1978. In a prior appeal, this court reversed the district court's decision granting summary judgment to the Secretary of Education, the Chancellor of the City Board of Education, the Chancellor of the City Board of Education and intervenors representing parents of children receiving Chapter 1 services in religious schools. 739 F.2d 48 (2d Cir. 1984) (Friendly, J.), aff'd sub nom. Aguilar v. Felton, 473 U.S. 402, 105 S. Ct. 3232, 87 L. Ed. 2d 290 (1985). The Supreme Court affirmed our determination that sending public school teachers in to the City's sectarian schools to provide Chapter 1 instruction to children attending those schools violated the establishment clause. Familiarity with both decisions is assumed.
After the mandate of this court was entered in the district court, appellants moved shortly before the start of the 1985-86 school year to enjoin use of public school teachers in the City's sectarian schools, effective 30 days from the entry of the judgment. The Chancellor had already filed an "Initial Report" with the district court, setting forth various alternatives under consideration by the City and indicating that he required "at least until September 1986 to develop and implement an alternative plan." In September 1985, the district court held a hearing on this issue. After the hearing, appellants submitted an alternative proposal for a temporary stay with another hearing to be held after appellees submitted a progress report in 60 days.
While permanently enjoining use of Chapter 1 funds for public school teachers on religious school premises, Judge Neaher's order stayed the judgment
until the start of the September 1986 school year, on condition that the Chancellor . . ., commencing December 2, 1985, and each 60 days thereafter, submit a written report to the Court and to counsel for the plaintiffs describing in reasonable detail the progress being made to conform the City's Title 1 plan to the requirements of this judgment.
Appellants then moved for an order resettling and clarifying the judgment, which was later denied. They now appeal from the judgment entered after the remand and from denial of the motion to resettle.
Appellants contend that the district court erred in granting a year-long stay, conditioned only on the filing of bi-monthly progress reports. They argue that, by allowing the admittedly unconstitutional plan to continue for another school year, Judge Neaher failed to place a sufficient burden of compliance on the City. Furthermore, appellants claim that the City has not been acting in good faith. In particular, they criticize the City's failure to develop alternatives after the current plan was held unconstitutional by this court in 1984 and the City's consideration of a plan that would use vans parked near the religious schools, which, they argue, would also be unconstitutional. Appellants also claim that the nature of the City's reporting obligation under the district court's order requires clarification. In any event, they maintain that the City's December 2, 1985 report demonstrates that the district court's stay should be ended and a plan using public school premises to deliver Chapter 1 instruction immediately implemented. Finally, they claim that the district court should be directed to enter judgment granting summary judgment in their favor, as required by this court, and striking the words "on entanglement grounds" from the order the judge did issue. Use of this phrase, appellants argue, ignores the fact that the program was held to violate the Constitution on both entanglement and effects grounds.
Appellees argue that, in view of the logistical and administrative problems associated with developing a plan for such a large school system, a one-year stay was well within the district court's discretion. They stress the lack of harm which would result from continuation of the program for another year, citing the comment from this court's prior opinion that the program "apparently has done so much good and little, if any, detectable harm." 739 F.2d at 72. See also 105 S. Ct. at 3239 (Powell, J., concurring). Furthermore, they contend that this court, in that opinion, contemplated such a stay. Appellees also argue that modification of the stay, including its immediate termination, must be sought from the district court in the first instance, and, since that has not been done, the issue cannot be considered on this appeal. Similarly, they stress that the constitutionality of any particular remedial alternative is not before us at this time. Finally, appellees claim that failure to enter summary judgment for plaintiffs was harmless and reference to "entanglement grounds" as the basis for the decision is a correct reading of the Supreme Court's decision or, at most, harmless error.
In reviewing the orders of district court in this case, we are constrained by a very limited standard of review. The district court has broad discretion to fashion an equitable remedy that meets the practical demands of the situation, as well as the requirements of the Constitution. See, e.g., Lemon v. Kurtzman, 411 U.S. 192, 200-01, 36 L. Ed. 2d 151, 93 S. Ct. 1463 (1973). The district judge's actions can be set aside only if they constitute an abuse of discretion. See id. at 200. In addition, as appellees note, we previously directed that "the district ...