Background In the wake of the Court of Appeals decision, United States v. City of Yonkers, 96 F.3d 600 (2d Cir. 1996) and in the absence of any stay pending a ruling by the Supreme Court of the United States on the State's petition for certiorari, and in response to a motion by the City of Yonkers with the support of the NAACP and YBOE petitioning the U.S. District Court to issue an order requiring the State to provide financial relief sufficient to further the EIP I ordered by the Court in 1986. 635 F. Supp. 1538, the Court, on June 9, 1997, ordered that the Monitor "report and recommend to the Court what steps, if any, need be taken to implement fully EIP I including, but not limited to, the proportion of EIP I related costs which the State Defendants should bear." The Order was specific in its direction not to consider EIP II or vestige-related costs which are currently not ordered and subject to a scheduled review by the Court. Issues

On May 13, 1986, Judge Sand issued a sweeping remedial order for the desegregation of the Yonkers public schools (United States v Yonkers Bd. of Educ., 635 F. Supp. 1538, affd 837 F.2d 1181, cert denied ___ US ___, 108 S Ct 2821, supra). The order pertaining to the instant controversy read in pertinent part:

In 1986, Judge Sand approved the "Educational Improvement Plan" ("EIP I") recommended to him by the judicially-appointed Monitor. See Yonkers Branch v. Yonkers Bd. of Educ., 635 F.Supp. 1538 (S.D.N.Y. 1986) (" Yonkers II"). Yonkers I and Yonkers II were affirmed. See United States v. Yonkers Bd. of Educ., 837 F.2d 1181 (2d Cir. 1987) (" Yonkers III"). EIP I recommended school closings, magnet schools, voluntary busing, and student and staff reassignment. The City and the YBE immediately began implementing this plan.

In spite of the length, care, and detail of this Court's opinion, the City resisted (and at times even stood in contempt of) the District Court's efforts to remedy the City's intentional racial discrimination. On May 13, 1986, the District Court entered a separate order in the school segregation portion of the case, see United States v. Yonkers Bd. of Educ., 635 F.Supp. 1538 (S.D.N.Y. 1986), which spawned a separate history of litigation that is not directly relevant to the present appeal. On August 2, 1988, the District Court found both the City and several individual City Council-members in civil contempt of its earlier remedial orders.

A year later, the district court issued its remedial order for the Yonkers schools. See United States v. Yonkers Bd. of Educ., 635 F. Supp. 1538 (S.D.N.Y. 1986) (Sand, J.) ("Yonkers II"). Its stated goal was to achieve the desegregation of the student population in every school in the system by the 1987-88 school year.

A year later, the district court issued its remedial order for the Yonkers schools. See United States v. Yonkers Bd. of Educ., 635 F. Supp. 1538 (S.D.N.Y. 1986) (Sand, J.) (" Yonkers II"). Its stated goal was to achieve the desegregation of the student population in every school in the system by the 1987-88 school year.The principal tools for achieving that goal were the creation of City-funded magnet programs to attract non-minorities to predominately minority schools and the adoption of a "controlled choice" system for student assignments. See Yonkers III, 837 F.2d at 1215.

The early history of this litigation and the events leading to it have been explored extensively in prior published opinions of this Court and the district court. The action, charging housing and school segregation in violation of the Equal Protection Clause and various federal civil rights statutes, was commenced by the United States in 1980, was joined by NAACP, and was pursued as a class action against the City, the Board, and the Yonkers Community Development Agency. After a lengthy trial, the district court found those defendants liable for intentional discrimination in housing and education, see 624 F. Supp. 1276 (1985) ("Yonkers I"), fashioned remedial orders, see 635 F. Supp. 1538 and 1577 (1986) ("Yonkers II"), and entered judgment accordingly. This Court affirmed the judgment of the district court in all respects. See 837 F.2d 1181 (1987) ("Yonkers III"), cert. denied, 486 U.S. 1055 (1988).

After evidentiary hearings during which the City raised no objection to the construction of the new school, the district court on May 13, 1986, entered its Order for Desegregation of the Yonkers Public School System, which required, among other things, the construction of a new junior high school. See United States v. Yonkers Bd. of Educ., 635 F.Supp. 1538, 1540-43 (S.D.N.Y. 1986). The district court's orders finding the City and the Board liable and ordering remedies for desegregation were affirmed by this court.

The NAACP plaintiffs were granted leave to intervene and file an amended complaint, and the suit was certified as a class action. The State defendants were not then parties to the action. After a lengthy trial, the district court found the original defendants liable, 624 F.Supp. 1276 (S.D.N.Y. 1985), fashioned remedial orders, 635 F.Supp. 1538 and 1577 (S.D.N.Y. 1986), and entered judgment accordingly. This Court affirmed the judgment of the district court in all respects. 837 F.2d 1181 (2d Cir. 1987), cert. denied, 486 U.S. 1055, 108 S.Ct. 2821, 100 L.Ed.2d 922 (1988).

In United States v. Yonkers Bd. of Educ., 837 F.2d 1181 (2d Cir. 1987), cert. denied, ___ U.S. ___, 108 S.Ct. 2821, 100 L.Ed.2d 922 (1988), familiarity with which is assumed, this Court affirmed a judgment of the United States District Court for the Southern District of New York (Sand, J.), see 624 F.Supp. 1276 (S.D.N.Y. 1985), that held, inter alia, defendants the City and Yonkers Board of Education ("the Board") liable for racial segregation of Yonkers public schools and directed them to undertake measures to remedy that segregation. This Court also affirmed three subsequent remedial orders issued by the district court, including a School Remedy Order entered May 13, 1986, see 635 F.Supp. 1538 (S.D.N.Y. 1986). The School Remedy Order was issued following the submission of two proposed remedial plans by the Board and responses by the government and plaintiffs-intervenors NAACP. The plan adopted in the order included provisions for school closings, dedicated and attendance-area magnet schools, a voluntary student transfer program, and the appointment of a Monitor "empowered to make recommendations to the Court with respect to changes she/he believes necessary to make the plan more effective," id. at 1552.