A Middlesex Superior Court judge is currently deliberating on a motion to dismiss the charges against the defendants in the Commonwealth Day School case, one of the most controversial legal battles in the city.

Charged with conspiracy and racial discrimination for allegedly forcing the predominantly Black grammar school out of their Brattle Street neighborhood, the defendants continue to seek an end to the case, now in its third year of litigation.

Lawyers for the defendants asked the court on October 13 to prevent the case from going before a jury.

The defendants include Arthur and Jean Brooks, Ralph Z. and Charlotte Sorenson, Inspectional Services Commissioner Joseph P. Cellucci, Public Works Commissioner William Summers and two other city officials.

Chester A. Janiak, one of the defense attorneys, said this week that there is no factual evidence to back up charges of racial discrimination by the defendants.

"Even accepting the allegations as true, the plaintiff's case has no merit under the law," said Harvey J. Wolkoff, a second defense attorney for the case.

But despite the claims of the defense, the plaintiffs--the parents of 16 students enrolled at the school for the short time it was located on Brattle Street--are pushing to bring their case before a jury. They say theirs is a legitimate case of race discrimination that deserves a jury trial.

"This case is an extremely strong case of discrimination," said Margaret A. Burnham, who is representing plaintiffs Milton J. Benjamin and Joan Wallace-Benjamin, the parents of one of the students at the school "This [the dismissal request] is an effort to delay the matter."

"There are real grounds for there to be a jury trial," said Wallace-Benjamin, who is the president of the Urban Eastern Massachusetts League, a civil rights service advocacy organization. "It's a travesty if we are not able to."

In October 1990, the parents filed a suit charging that four Cambridge residents and four Cambridge officials had cooperated in a scheme to oust the elementary school from its location on Brattle Street for racial reasons.

The neighbors of the school allegedly used zoning board licensing and accreditation challenges to make it difficult for the school to get a license for operation. "We felt that the discrimination on the basis of race was inherent in the way the school was treated," said Milton Benjamin. "It impaired the ability of the school to get its license and accreditation... The neighbors forced the school to be burdened by constant legal attacks and forced parents like ourselves to move our kids.

The school sold its Brattle Street property in 1989 and moved back to its Newbury Street location in Boston, where it had previously operated for 12 years.

"The claim is that they didn't want Afro-American children there," said Bernham. "They wanted to make sure that the neighborhood remained white."

But the defendants maintain that the objection to the school was based on the noise level and traffic that a 150-student institution would have brought to their neighborhood.

"The Sorensons did not want any heavy intensive use of the building 20 feet away from their house," said Harvey J. Wolkoff.

And Wolkoff said that the claim of racial discrimination was "a lot of nonsense," blown out of proportion by the media and Cambridge residents.

"The entire controversy has substantial negative implications for the exercise of first amendment rights," said the lawyer. "The cry of racism is infringing upon first amendment rights."