Hobson Ex Rel. Hobson v. Hansen

J. SKELLY WRIGHT, Circuit Judge

*

:

SUMMARY

In Bolling v. Sharpe, 347 U.S. 497 , 74 S.Ct. 693 , 98 L.Ed. 884 (1954), the Supreme Court held that the District of Columbia’s racially segregated public school system violated the due-process clause of the Fifth Amendment. The present litigation, brought in behalf of Negro as well as poor children generally in the District’s public schools, tests-the current compliance of those schools-with the principles announced in Bolling, its companion case, Brown v. Board of

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Education of Topeka, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954), and their progeny. The basic question presented is whether the defendants, the Superintendent of Schools and the members of the Board of Education, in the operation of the public school system here, unconstitutionally deprive the District’s Negro and poor public school children of their right to equal educational opportunity with the District’s white and more affluent public school children. This court concludes that they do.

In support of this conclusion the court makes the following principal findings of fact:

1. Racially and socially homogeneous schools damage the minds and spirit of all children who attend them — the Negro, the white, the poor and the affluent— and block the attainment of the broader goals of democratic education, whether the segregation occurs by law or by fact.

2. The scholastic achievement of the disadvantaged child, Negro and white, is strongly related to the racial and socioeconomic composition of the student body of his school. A racially and socially integrated school environment increases the scholastic achievement of the disadvantaged child of whatever race.

3. The Board of Education, which is the statutory head of the public schools in the District, is appointed pursuant to a quota system which, until 1962, for over half a century had limited the Negro membership of the nine-man Board to three. Since 1962 the Negro quota on the Board has been four, one less than a majority. The city of Washington, which is the District of Columbia, presently has a population over 60% Negro and a public school population over 90% Negro.

4. Adherence to the neighborhood school policy by the School Board effectively segregates the Negro and the poor children from the white and the more affluent children in most of the District’s public schools. This neighborhood school policy is relaxed by the Board through the use of optional zones for the purpose of allowing white children, usually affluent white children, “trapped” in a Negro school district, to “escape” to a “white” or more nearly white school, thus making the economic and racial segregation of the public school children more complete than it would otherwise be under a strict neighborhood school assignment plan.

5. The teachers and principals in the public schools are assigned so that generally the race of the faculty is the same as the race of the children. Thus most of the schools can be identified as “Negro” or “white,” not only by reference to the predominant race of the children attending, but by the predominant race of the faculty as well. The heaviest concentration of Negro faculty, usually 100%, is in the Negro ghetto schools.

6. The median annual per pupil expenditure ($292) in the predominantly (85-100%) Negro elementary schools in the District of Columbia has been a flat $100 below the median annual per pupil expenditure for its predominantly (85-100%) white schools ($392).

7. Generally the “white” schools are underpopulated while the “Negro” schools generally are overcrowded. Moreover, all of the white elementary schools have kindergartens. Some Negro schools are without kindergartens entirely while other Negro schools operate kindergartens in shifts or consecutive sessions. In addition to being overcrowded and short on kindergarten space, the school buildings in the Negro slums are ancient and run down. Only recently, through the use of impact aid and other federal funds, have the Negro slum schools had sufficient textbooks for the children’s use.

8. As they proceed through the Washington school system, the reading scores primarily of the Negro and poor children, but not the white and middle class, fall increasingly behind the national norm. By senior high school the discrepancy reaches several grades.

9. The track system as used in the District’s public schools is a form of ability grouping in which students are divided in separate, self-contained curricula or tracks ranging from “Basic”

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for the slow student to “Honors” for the gifted.

10. The aptitude tests used to assign children to the various tracks are standardized primarily on white middle class children. Since these tests do not relate to the Negro and disadvantaged child, track assignment based on such tests relegates Negro and disadvantaged children to the lower tracks from which, because of the reduced curricula and the absence of adequate remedial and compensatory education, as well as continued inappropriate testing, the chance of escape is remote.

11. Education in the lower tracks is geared to what Dr. Hansen, the creator of the track system, calls the “blue collar” student. Thus such children, so stigmatized by inappropriate aptitude testing procedures, are denied equal opportunity to obtain the white collar education available to the white and more affluent children.

Other incidental, but highly indicative, findings are as follows: a. The June 1964 — December 1965 study by the Office of the Surgeon General, Army, shows that 55.3% of the 18-year-olds from the District of Columbia failed the Armed Services mental test, a higher percentage than any of the 50 states, b. The average per pupil expenditure in the District’s public schools is only slightly below the national average. The 1964-65 Bureau of the Census Report on Governmental Finances shows, however, that the District of Columbia spends less per capita on education generally than all states except Arkansas and Tennessee, c. The same report shows that the District of Columbia spends more per capita on police protection than all states without exception. In fact, the District of Columbia spends more than double any state other than Nevada, New York, New Jersey and California. The inferences, including those bearing on the relationship of the quality of education to crime, which arise from these findings are obvious. Indeed, the National Crime Commission’s Task Force Report: Juvenile Delinquency and Youth Crime indicates that the very deficiencies in the District’s public school system noted by the record in this case — prejudging, through inappropriate testing, the learning abilities of the disadvantaged child as inferior to the white middle class child; placing the child in lower tracks for reduced educa-' tion based on such tests, thus implementing the self-fulfilling prophecy phenomenon inherent in such misjudgments; placing inferior teachers in slum schools; continuing racial and economic segregation of pupils; providing textbooks unrelated to the lives of disadvantaged children ; inadequate remedial programsjfpr offsetting initial psychological and social difficulties of the disadvantaged child— all have contributed to the increase in crime, particularly juvenile crime.

In sum, all of the evidence in this case tends to show that the Washington school system is a monument to the cynicism of the power structure which governs the voteless capital of the greatest country on earth.

Remedy

To correct the racial and economic discrimination found in the operation of the District of Columbia public school system, the court has issued a decree attached to its opinion ordering: 1. An injunction against racial and economic discrimination in the public school system here. 2. Abolition of the track system. 3. Abolition of the optional zones. 4. Transportation for volunteering children in overcrowded school districts east of Rock Creek Park to underpopulated schools west of the Park. 5. The defendants, by October 2, 1967, to file for approval by the court a plan for pupil assignment eliminating .the racial and economic discriminatioh found to exist in the operation of the Washington public school system. 6. Substantial integration of the faculty of each school beginning with the school year 1967-68. 7. The defendants, by October 2, 1967, to file for approval by the court a teacher assignment plan fully integrating the faculty of each school.

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The United States is invited to intervene in these proceedings to assist in implementing the decree, to suggest changes in the decree, and to take whatever other steps it deems appropriate in the interest of public education in the District of Columbia.

FINDINGS OF FACT

I. Student Segregation

A.

De Jure Segregation and Bolling v. Sharpe.

Until 1954 the public schools in the District of Columbia were racially segregated by law.

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The school system was divided up into Division I (white) and Division II (Negro), each with its own elementary and junior and senior high schools, each with teaching and administrative personnel of the one race only. The two Divisions were capped at the top by a single Superintendent. A few administrative committees also cut across Division lines.

The Negro schools, though entirely disjointed from Division I, were denied the consolation of equality which the separate-but-equal doctrine had promised. In 1949 the monumental Strayer Report

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thoroughly documented the comparative inferiority of Division II: its classrooms were considerably more crowded, its buildings older and shabbier, its curricula narrower, its counseling services less adequate, its supplies more scarce.

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The next year our Court of Appeals upheld the constitutionality of the District’s segregated school system, Judge Edgerton dissenting. Carr v. Corning, 86 U.S.App.D.C. 173 , 182 F.2d 14 (1950). Only months later, however, the Supreme Court issued decisions which clearly threatened the viability of the separatébut-equal doctrine as it applied to public school education. Sweatt v. Painter, 339 U.S. 629 , 70 S.Ct. 848 , 94 L.Ed. 1114 (1950); McLaurin v. Oklahoma State Regents, 339 U.S. 637 , 70 S.Ct. 851 , 94 L.Ed. 1149 (1950). Heedful that this doctrine was in its twilight, in the early fifties the school administration began readying itself for desegregation should that be decreed. Participating in these explorations was Dr. Carl F. Hansen, then in charge of Division I elementary schools and of the curriculum for all

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schools, and since 1958 the Superintendent of Schools.

In 1950 seven Negro students, of whom Spottswood T. Bolling was alphabetically the first, filed suit in federal court seeking admission to Sousa Junior High, a Division I school. On May 19, 1954, in Bolling v. Sharpe, 347 U.S. 497 , 73 S.Ct. 693 , the companion case to Brown v. Board of Education, 347 U.S. 483 , 74 S.Ct. 686 , the Supreme Court ruled that segregation in Washington’s schools was incompatible with the due process clause of the Fifth Amendment. For the argument on remedy

Bolling

and

Brown

were consolidated. A year and two weeks after

Brown

I, the Court in

Brown

II, 349 U.S. 294 , 75 S.Ct. 753 , 99 L.Ed. 1083 (1955), issued its famous decree of “all deliberate speed” and, noting that “[substantial progress has been made in the District,”

supra

at 299, 75 S.Ct. at 756 , remanded

Bolling

to the District of Columbia federal district court. A month later, whether because by that time plaintiffs had all graduated from the District’s schools or for other reasons, the

Bolling

action was dismissed.

B.

The Board’s Desegregation Plan.

1. As the Board of Education correctly understood, the

Bolling

decision affected the constitutional rights not of the complainants alone but of the entire Negro community in the District. Accordingly, within the week after

Bolling

and

Brown

I, the Board of Education released a plan for desegregation, one drawn up tentatively by the school administration the year before, widely known as the Corning Plan after the then Superintendent. By the opening of school in September 1955 it was in full effect.

As for placement of students, the plan embraced and asserted a policy, with modifications, of neighborhood schools. That is, geographical boundaries were traced around each school, the school somewhere near the center of the defined area; with the significant exceptions noted below in Sections I — D—3 and I — E of these findings, students attending public school and residing within each enclosure were required to go to the school inside that enclosure. (Tr. 135). Elementary school districts were kept compact enough so that most youngsters could easily walk to the schools from their homes, usually a distance of less than half a mile. (Tr. 3728, 3730.) Junior high school zones were of greater size — several elementary schools “feeding” into one junior high — and senior high zones were more inclusive still.

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2. Neighborhood elementary schools have undeniable advantages. Neither school nor parents need bear any transportation expenses, since the school is within walking distance of home. For the same reason, the safety hazards and the expense of time involved in getting from home to school are held at a minimum ; also, students may conveniently return home for lunch, and, with no school bus to catch, may linger after school with school work or after-school activities. Locating schools within the neighborhoods facilitates a closer relationship between school and parents, and gives the student a chance to make friends during the school day with the children, of his own age who live near his home. (Tr. 3120-3121; 4047-4049; 5031-5035; 6091-6094, 6194-6196.)

For junior and senior high schools, however, the relevant “neighborhoods” so expand that the advantages said to accrue with neighborhood schools in great part attenuate.

(See

Tr. 198.) As shown above, those advantages primarily depend on a neighborhood school only a reasonable walk from home; and the maps of school zone lines in the city make it clear that most Washington secondary school students must rely on

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some form of transportation in getting to and from school.

C.

Washington Residential Patterns.

Adoption of a neighborhood policy for student assignment inevitably impresses the racial residential patterns within the city on the schools with dramatic consequences. This section of the findings, drawing on evidence scattered through the exhibits, will try to sketch those patterns in the large. Below, to begin, are figures graphing the gradual displacement of whites by Negroes in the city and in its schools.

Year Per Cent Negro City Per Cent Negro School

1900 32%

1930 27% 32%

1940 28% 39%

1950 35% 50.1%

1953 40% 56.8%

1960 55% 79.7%

1965 61+% 89.4%

1966 90.2%

(Ex. V-13; Ex. 7; Ex. 26; Ex. 146.)

Washington’s white families, then, are increasingly few in number; further their residences are heavily concentrated in one area of the city, the area west of Rock Creek Park

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— the western fourth, approximately, of the truncated District diamond. The Park is a verdant curtain which draws through the city. It has long been true that virtually every residence west of the Park is white.

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It is now true that east of the Park the city is very heavily Negro.

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Twenty-seven years ago whites constituted at least a one-third minority in every neighborhood in the city. (Ex. A-16, pp. 310-314). But the rapid white out-migration from Washington into the Virginia and Maryland suburbs ever since 1948, the year of peak white population, has evidently depleted the supply of whites in many areas.

By the time of Bolling v. Sharpe, segregated residential patterns blighted the city. Since then the conditions have worsened. White families have deserted the Northeast, and the white population has greatly thinned in the high Northwest and in the quadrant of the city south and east of the Anacostia River. It is a painful irony that in the very decade in which society has intensified its efforts in facing up to the race question, residential segregation in Washington has become yet more complete.

Many whites still do live east of the Park, especially in the corridor between the Park and Parkway and 16th Street, including the fashionable DuPont Circle area, and in the socially variegated Capitol Hill area. But they enroll few children in the public school system, some because they are unattached and the others because, though married, they either are without children of public school age or place their children in private schools.

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D.

Segregation 1954-1967.

Adoption of a neighborhood school policy by Washington school officials in 1954 marked a thorough and commenda

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bly rapid abandonment of the formally segregated school structure of the preceding century. Nevertheless, it cannot be gainsaid that these officials were doubtless aware that its adoption would lead to a school system still considerably segregated in fact.

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There is no direct evidence that they intended this result; on the question of intent,

see

Section F-5 below. But the tendency toward segregation they accentuated by establishing various special student-assignment exceptions to the neighborhood principle — “optional” zones, an “optional feature,” and a psychological upset provision (these will be individually discussed below)- — ■ all calculated to release many white students from any obligation to attend their neighborhood school if that school should be predominantly Negro. The degree of actual integration which the neighborhood school policy, so qualified, in fact achieved in the years immediately following

Bolling

the record does not clearly show; all we know is that in 1954-55 27% of all Washington’s schools were 100% of one race or another; a year later this figure was 17%. (Ex. 7, p. 49.) Dr. Hansen’s track system, instituted in the high schools in 1956 and extended downward to the junior high and elementary schools in 1959, had the tendency of resegregating the races within the individual school.

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In 1958-59, an elementary school racial count uncovered the following information:

1958-59

Per Cent Negro Number of Elementary Schools

90-100% 68

80-90% 10

70-80% 7

60-70% 6

50-60% 3

40-50% 1

30-40% 1

20-30% 2

10-20% 1

0-10% 18

(Ex. 8, p. 9.)

Beginning with the school year 1962-63 the record is profuse with detail. Here is the racial breakdown of all the schools, first for that year and then for the 1966-67 school year just drawing to a close.

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Elementary Schools

Per Cent Negro Number of Schools

Pupils 1962-63 1966-67

85-100% 94 109

67-85% 11 9

33-67%

12

4 4

15-33% 3 4

0-15% 17 9

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Junior High Schools

Per Cent Negro Number of Schools

Pupils 1962-63 1966-67

85-100% 17 22

67-85% 2 3

33-67% 1 1

15-33% 2 0

0-15% 1 1

Senior High Schools

85-100% 6 8

67-85% 0 1

33-67% 3 1

15-33% 1 0

0-15% 1 1

In 1962-63, of the 13 elementary schools west of the Park, 12 were predominantly (85-100%) white. (The last, Jackson, was 83% white.) The five other predominantly white schools were on the other side of the Anacostia River. This year (1966-67) every one of 11 predominantly white schools at the three levels (9 + 1 + 1) is west of the Park, and so are all four 67-85% white schools. The only schools west of the Park which are

not

predominantly white are Western High and Gordon Junior High, both in the 33-67% class.

E.

Efforts to Correct De Facto Segregation.

At this juncture it becomes relevant to inquire into the efforts the school administration has undertaken, if any, to lessen the massive actual segregation which these figures reveal.

1. One witness, a school system engineer, testified that since 1962 the school system has ventured on a limited policy of integration, although one generally confined within the neighborhood principle. (Tr. 3609-3615, 3660-3668, 3725-3726, 3758-3760.) This policy, as he defined it, takes effect when more than a trivial number of whites happen to live in neighborhoods in which, for reasons unrelated to race, schools are due to be built. The substance of the alleged policy is that in these circumstances the new schools will be carefully placed within the neighborhoods so that their white enrollment when they open will be as high as possible. The hope is that the attractiveness of the new school will fasten the white families to the neighborhood, and perhaps lure other white families in; the witness’ claim was that this integration factor is sometimes as important a factor as cost in settling on the location of a new school.

The witness conceded that the policy had never been clearly articulated, or embodied in a written memorandum, or even approved by the School Board, originating instead with Dr. Hansen. And other evidence verifies that this testimony that integration is considered in locating school sites is simply untrue. In September 1964, two years after he supposedly announced this policy, Dr. Hansen notified the Board that integration was ignored in the placement of new schools, that to do otherwise would be futile (given the rapid racial transitions in mixed neighborhoods) and “bad educational planning.” (Ex. 36(c), p. 23.)

2. An instance of the school system’s concern for student integration is the

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WISE program, discussed in these findings at III-H-6 below. Now still in the planning stage, WISE is designed to upgrade the secondary schools in the southern half of the region west of the Park, in the hope that these school improvements will stabilize this presently integrated neighborhood. Financially the program will depend exclusively on federal grants under impact aid or other national statutes.

3. Two exceptions which the school administration has carved from its neighborhood policy may in operation be achieving slight integration; if this results, however, it is fortuitous, for the school administration disavows here any intention to integrate.

a. The first of these exceptions is that youngsters with mental or emotional disabilities, most of them Negro, through the years have been bused at public expense from their homes into special instructional classes meeting in approximately 35 elementary schools throughout the city. (Tr. 139, 2256-2257.) This past year slightly more than 100 such students, half of them Negro, were so deposited in the schools west of the Park. (Ex. 146.) At the receiving schools, of course, these disabled students are segregated into special classrooms set aside for their use and generally separated from the regular student body of the school.

b. A child attending a school overcrowded to a point well above stated capacity may be allowed to transfer to certain underutilized schools designated “open.”

(See

Tr. 125, 136, 183, 2257, 2879; Ex. A-35(c), pp. 18-19, 36; Ex. N-9.) Since none of the 11 “open” schools in 1965-66 was predominantly (85-100%) Negro, the open school policy evokes the possibility of integration, although this is no part of the purpose of the school administration, which apparently looks forward to ending the transfers as soon as adequate facilities can be erected in the now overcrowded areas. Further, there are inhibitions on the right to transfer. The students are, first, responsible for furnishing their own transportation. At least this has been true until a year ago, and the recent departure establishing busing is apparently limited to situations where the regular school is overcrowded to the extreme point of requiring shifts or consecutive half-day sessions.

{See

Defendants’ Proposed Findings, p. B-10.) Of course, the failure to provide transportation in effect biases the open-school policy in favor of families fortunate enough economically to shoulder transportation expenses. It is unclear, moreover, whether, once the conditions of under- and overcrowding are satisfied, the student’s right to transfer is absolute, or whether clearance on academic or other grounds must be secured from or renewed by some school official. For whatever reason, many and in some cases most of the students transferring into the predominantly white schools west of the Park are white students who would otherwise have attended schools with higher Negro concentrations.

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4. The attitude toward curing segregation on the part of the school administration is adequately exposed by the circumstances surrounding Dr. Hansen’s report to the Board in 1964. In June of that year the Washington Urban League presented a report on school segregation to the Board of Education in open meeting. This Urban League submission (Ex. A-36(b)) urged the Board, first, to declare officially that actual integration is one of its policy objectives, and, next, to create a permanent advisory committee on integration; finally, it spelled out concrete if limited steps which

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the Board could take in the direction of integration. These included busing Negroes into underutilized predominantly (85-100%) white schools, making rather slight amendments in certain secondary school zones (in one instance merely rotating the Cardozo zone, now a north-south rectangle, 90 degrees), abolishing several optional zones (defined below), and establishing three fourth- through sixth-grade educational centers in lower Georgetown, Mount Pleasant and the upper Northwest, each one serving an area now parcelled out among three elementary schools.

The Board profusely thanked the Urban League for its civic interest and requested Dr. Hansen to analyze its several proposals. Dr. Hansen’s evaluation (Ex. A-36(c)), turned in to the Board on September 1, 1964, denied that “segregation,” even

“de facto segregation,”

was the right word for Washington’s schools,

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insisted that the Board’s 1954 policy statement on ending

de jure

segregation sufficed in its content as a statement of racial policy (Ex. A-35(a), p. 45), argued that the League’s suggestions were “evil in principle” and probably unconstitutional insofar as they inclined toward color consciousness rather than color blindness on the part of the school system, and condemned them for entailing or auguring “abandonment” of the neighborhood school policy, his administration’s commitment to which he vigorously reaffirmed. The Board of Education, after receiving a reply brief by the Urban League (Ex. A-36(d)) pointing out that Dr. Hansen had not come to grips with many of its specific recommendations,

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took no action. (Tr. 1437-1439.)

5. From all the evidence, including the Urban League episode and the collapse upon analysis of the professed integration policies respecting school placement, the court is forced to the conclusion that the school administration’s response to the fact and dilemma of segregation has been primarily characterized — at its best- — by indifference and inaction. School officials have refused to install actual integration as an objective for administration policy, or even to recognize that in the District segregation is a major problem. Over the years they have expressed little interest in and done nothing about locating schools on the borders of white and Negro communities, or busing students from east of the Park into the underutilized schools west of that divide to achieve integration, or building schools in the Park accessible from east and west alike, or Princeton planning contiguous schools,

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or establishing large educational complexes drawing students from throughout the city; its present $300,000,000 six-year plan for expansion and construction envisages none of these alternatives. (Tr. 3713-3715, 3724.) Many of these ideas, indeed, have apparently never been considered.

(See

Tr. 2974, 2977, 3749.) Dr. Hansen, for example, although he has himself examined the literature on educational parks, has not ordered any studies undertaken

re

their local usefulness, nor has he broached the subject with the Board, or even with his own staff, at least until this suit got under way.

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(Tr. 179-182, 975, 3669-3670.)

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The truth may be that school officials have given up on integration primarily because they have noted the low number of whites in the schools in recent years. But so long as so many of the remaining white pupils continue to be sent to 85-100% white schools, the possibilities for integration have hardly been exhausted.

F.

School Administration Policies Encouraging Segregation.

The next step is to focus attention on those additional school administration departures from the neighborhood school system which come wrapped in racial implications and bear directly on the question of the school administration’s racial intent. These fall under four headings.

1. Beginning after

Bolling,

individual whites who were seriously upset by the prospect of integration were suffered on an individual basis to transfer to white schools, in the teeth of the 1954 Board order ruling expressly to the contrary. (Ex. 7, p. 44;

see

p. 46.) And apparently professions of psychological upset were accepted at face value without investigation of their authenticity.

(See

Tr. 3068-3069, 3119.) The record is unclear as to whether this practice has been discontinued; the court notes one report that it was still functioning

circa

I960.

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2. Under the so-called “optional feature” of the school system’s desegregation plan, students registered in one school at the time of

Bolling

were allowed, if that school stayed underenrolled, to remain there until graduation instead of attending their neighborhood school; indeed unless the student requested transfer to his neighborhood school he apparently continued in the school he had been attending. (Ex. 7, p. 46.) While this feature had some affirmative válue in minimizing the disruption in students’ lives occasioned by desegregation, another of its obvious functions was to let white students living in heavily Negro neighborhoods stay in their still predominantly white, though beyond the neighborhood, schools. The feature expired no later than 1960, since by then all students had graduated from their 1953 schools.

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3. Two years ago the school administration revised the tentative borders drawn around the new Rabaut Junior High (which finally opened last fall) admittedly in order to accommodate an organization called Neighbors, Inc. (Tr. 2790-2818.) Neighbors, Inc. represents a community that is centered around Takoma Elementary School, which until very recently was thoroughly integrated. The organization protested the original line because it would have sliced the Takoma district in two, dividing the white Takoma studentry up between Paul and Rabaut Junior Highs, in each of which they would be engulfed by a large Negro majority, rather than concentrating the whites in Paul alone.

4.

Optional zones.

Sometimes, the administration has replaced hard and fast geographical school boundaries with, what it calls “optional zones.”

a.

Crestwood and Kalorama Triangle zones.

As an illustration, presently every student living in the integrated. Crestwood area between 16th Street and the Park north of Piney Branch Parkway may choose to attend either predominantly (85-100%) Negro MacFárland Junior High, the neighborhood school only a few blocks to the east, or integrated (33-67%) Gordon, far away on the other side of the Park. Similarly, the older brother may enroll at either Roosevelt (predominantly Negro), his nearby neighborhood high school (adjoining MacFarland), or Western (integrated) or Wilson (predominantly white), each close to two miles to the west. The young student living in that area has an option between Powell Ele

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mentary School (predominantly Negro), in his neighborhood a short walk away, and Hearst (predominantly white), at a distance of 10 minutes by car just off Wisconsin Avenue. (Tr. 3053-3054; Ex. N — 1, p. 27.)

Directly south of Crestwood, in the Kalorama Triangle area, optional zones afford the student a choice between Cardozo High and Western, and between Banneker Junior High and Gordon. His natural “neighborhood” schools are plainly Cardozo and Banneker, both predominantly Negro.

All these zones

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were marked out when the school lines were drawn anew in the wake of

Bolling.

(Tr. 2957.) At that time all the schools in question were operating at less than capacity. (Tr. 2845-2846.) Despite this evidence, an assistant school superintendent maintained at first on the stand that the purpose behind creation of these zones was to relieve overcrowding at the schools within the territory of which the zones naturally fell. (Tr. 2859, 2862.) The next day the witness retracted this explanation, confessing that the primary original purpose for the zones was to afford whites the opportunity to avert attendance at the Negro schools to which they were otherwise destined. (Tr. 2956-2958, 2978.)

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The court accepts this explanation. And while claiming that presently the zones also function to lessen overcrowding at the schools just east of 16th Street, the witness did not assert that the racial purpose for these zones has vanished (Tr. 2977-2985), and the court has no reason so to find.

b.

Dunbar zone.

Elsewhere in Washington optional zones also appear. Sometime after 1960, Washington’s Southwest was given its selection between Dunbar High School, which is overwhelmingly Negro, and Ballou, then mostly white but on the other side of the Anacostia River. When Ballou became overcrowded and began reporting substantial Negro majorities, it was replaced as the optional zone alternative by Western, a less crowded and racially mixed school, although a great distance away. This school year, the 35 white students living in that zone without exception elected to attend Western, as did 19 of the 86 Negroes with residences there. (Tr. 6713.)

The school administration professes

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to the court that its purpose here is only to allow every student in the zone, white and Negro alike, to attend a genuinely integrated school. (Tr. 2852, 2982.) Its solicitude for the Negro student’s opportunity for exposure to an integrated education the court discredits. Since 1954 the administration has carved optional zones for race-oriented reasons only where significant islands of whites are found, never in neighborhoods which lack white enclaves, never, for example, in the almost exclusively Negro neighborhoods directly to the east of 14th Street feeding Shaw and Garnet-Patterson, which in fact are closer to Western High School than the Dunbar optional zone is. Further, the court can judicially note that the new Southwest, as school officials well know, is largely composed of urban-renewal affluent whites easily able to absorb the expense of transportation, and impoverished Negro families making do in public housing. Any equality here would be on a par with the majestic even-handedness of the ordinance which Anatole France cherished.

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The court also discredits two administration spokesmen’s claim that Western

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replaced Ballou as one of the optional zone schools only because Ballou became overcrowded. (Tr. 548-549, 2661, 2982-2983.) As Ballou’s enrollment increased, so did its percentage of Negroes in attendance (now 85%); since the conceded function of this optional zone is to provide access to an integrated secondary school, race as well as (if not rather than) overcrowding must have induced the substitution.

c.

Junior high zones.

Two junior high school optional zones — between Paul and Backus and between Francis and Gordon — were created after formal desegregation, again so that the white student could choose to attend a distant school with a considerable white percentage rather than the overwhelmingly Negro school in his neighborhood. (Tr. 2865-2867, 2985.) Both zones were recently abolished, although in neither instance because the school administration had at last rejected this line of social reasoning. Rather, it was the opening of Rabaut Junior High this fall which spelled the end of the old Paul-Backus zone, while the Francis-Gordon zone was finally integrated into Gordon to decrease overcrowding at Francis.

d.

Deal-Gordon zone.

One other optional zone eased the withdrawal of students from an integrated junior high (Gordon) into the city’s one predominantly white junior high school, Deal.

(See

Tr. 152-171, 2858.) Beginning back in the 1940’s when both were Division I white high schools, an optional zone lay between Wilson and Western Senior Highs. At that time Deal fed into Wilson, Gordon into Western; these are today’s arrangements also. The Wilson-Western optional zone until 1963 fell entirely within Gordon’s province. Parents in the zone who preferred Wilson High School complained to Superintendent Hansen about the junior high assignment to Gordon. Ostensibly their reasoning was that their children suffered the awkwardness of having to acquire wholly new classmates when they graduated from Gordon into Wilson, and that families were inconvenienced by having children simultaneously attending Gordon and Wilson, at opposite directions from the zone itself. In 1963 the Superintendent, in response to these complaints, converted the zone from compulsory Gordon to Gordon-Deal optional territory. Two years later, admittedly because a civil rights group publicly argued that the zone parents were principally seeking a white school, the Superintendent changed directions, not only returning the junior high optional zone to the Gordon district, but merging the senior high zone into the exclusively Western district.

Although, the Superintendent testified, the 1963 change was an “unwise decision because of the racial overtones,” “The racial overtones,” he said, “are interjected into this by others.” (Tr. 165, 166.) The zone parents’ pre-1963 professed non-racial grievances do, however, seem disingenuous, since the inconvenience they cited they had invited upon themselves by choosing Wilson rather than Western High School for their older children. Further, that the Superintendent granted such relief upon the civil rights group’s protest evidently reflected his concession that one apparent intent of the zone parents was segregatory. Accordingly, the court finds that the underlying motive of at least some of the zone parents, not unappreciated by the Superintendent, lay in their preference for the greater white enrollment at Deal and Wilson.

5.

Conclusion.

Once nearly complete student segregation is shown in a school system in which

de jure

segregation had formerly been the rule, when challenged the burden falls on the school board to show that the observed segregation stems from the application of racially neutral policies. In this litigation defendants have exposed and explained their neighborhood policy and shown

*418

that this is the agent responsible for the segregation.

Spotlighting the racial purpose hidden behind the optional zones, plaintiffs invite the court to find that the seeming racial neutrality of the neighborhood school policy itself is only a front that school officials adopted and adhered to because they intended the racial segregation they knew it would produce.

The court, however, is convinced, first, that, whatever the trends in recent educational thought, in 1954 the Board of Education sincerely believed in the neighborhood school policy and the legitimate values they saw it as furthering. Accordingly, the court cannot conclude that its segregatory potential was the reason the Board inaugurated the neighborhood policy 13 years ago. Actually, the whole question of the Board’s motives in 1954 spins in a kind of unreality. Undoubtedly the Board then felt that, at least for elementary schools, it had been all but ordered by the Supreme Court to install such a policy; except for the deviations caused by

de jure

segregation, neighborhood elementary schools were virtually the unquestioned orthodoxy throughout Northern urban education. The Supreme Court itself indicated in

Brown

II a year later that it too seemingly assumed that as a matter of course desegregating school districts would fall back upon the neighborhood school norm. 349 U.S. 297 , 300-301, 75 S.Ct. 753 (1955). The court is also impressed that the Board plunged into almost immediate action, not even waiting to see whether

Brown

II might not occasion a retreat by the Court from the high ground it staked out in

Brown

I.

Nor is any idea of intentional segregation necessary to explain why the neighborhood policy has been continued in the interim between 1954 and the present. Organizational inertia and conservatism, added to what the court finds to be the continued good faith aspects in the Board’s approval of the neighborhood policy, are easily adequate explanations.

But the fact that the Board believes in neighborhood schools for racially neutral reasons which alone suffice to explain the initiation and retention of that policy does not settle the matter; for these facts in no way cancel the possibility that the Board has concurrently favored it for racial reasons which are forbidden. If a valid purpose is in fact joined by an outright segregatory purpose, the court has no " doubt that a

de jure

case has been established. On this issue, however, the burden of proof returns to plaintiffs; school board officials, having demonstrated their legitimate intentions, can hardly be asked or expected to prove the nonexistence of a secret illicit accompanying intent.

Plaintiffs’ evidence in support of their accusation comes from the optional zones, the Rabaut incident, the now discontinued optional feature, and the emotional upset provision, present status unknown. All of these conspire to identify the actual attitude of the school administration — though not necessarily of the Board

24

— toward attendance by whites at predominantly Negro schools. The substance of that attitude is, simply, that whites should not be compelled to attend them.

This attitude, it must quickly be said, is not, even once converted into policy, at all an absolute. Often it comes into conflict with other school system policies, principally that of neighborhood schools. On occasion, clashes between these two forces can be averted and the two reconciled, as when a simple retracing of a line in 1965 prevented the splitting up of each half of a small white colony between two predominantly Negro junior highs. Usually, when the two do collide, it is the neighborhood policy which prevails, leaving a few white students trapped in a predominantly Negro school. But sometimes, instead, it is the neighborhood pol

*419

icy which recedes, leaving in its backwash an optional zone or another stratagem.

We know then (1) that the school administration under the Superintendent is reluctant to assign white pupils to predominantly Negro schools, if only because of the pressure from influential white parents that action stirs. We also know (2) that in this school system where the very large majority of the students is Negro, the neighborhood policy succeeds in placing white students in such a way that few of them are required to attend heavily Negro schools. This evidence, the court feels, is not enough to show that in any real sense the Board of Education has adhered to the neighborhood policy with a segregatory design. However, given the two circumstances above, it is impossible not to assume that the school administration is affirmatively satisfied with the segregation which the neighborhood policy breeds.

G.

The Vices of Segregation.

1. The court finds that actual integration of students and faculty at a school, by setting the stage for meaningful and continuous exchanges between the races, educates white and Negro students equally in the fundamentals of racial tolerance and understanding. None of the parties to this suit, indeed, oppose this formulation, and they further agree that learning to live interracially is, or in a democracy should be, a vital component in every student’s educational experience. (Tr. 185, 200-201, 611-612; 3065-3069; 5074-5076; Defendants’ Proposed Findings, p. B-6.)

Elementary school integration enables the very young of either race to accept each other as persons before racial attitudes and prejudices have a chance to intrude and harden (Ex. A-24, pp. 27-28); Negro and white children playing innocently together in the schoolyard are the primary liberating promise in a society imprisoned by racial consciousness. If stereotypic racial thinking does set in, it can best be overcome by the reciprocal racial exposure which school integration entails.

25

(Tr. 5084.)

2. The court also finds that a Negro-student in a predominantly Negro school, gets a formal education inferior to the-academic education he would receive, and. which white students receive, in a school which is integrated or predominantly white. And integration of the Negro into the white classroom need not diminish the achievement of the white students. Dr. Coles,

see

Note 25, testified that in schools whose integration he has witnessed white achievement has held steady, or even as a result of integration slightly improved. (Ex. A-24, pp. 30, 34.) Dr. Marvin Cline of Howard University reported that in the instances he has studied of Negroés bused into white schools white achievement has never declined. (Tr. 6558.) Busing of this type has been undertaken in Baltimore,

see-

Note 26, and, according to defendants’ witness, achievement testing has shown that the integration has had no negative-effect on white performance. (Tr. 5088.)

Asked about an Office of Education report concluding that the white school offers the Negro student academically a “better educational opportunity,” Dr-

*420

Hansen, the only defendant to testify on this score, volunteered that he accepted that conclusion, subject only to his reservation that efforts at integration are self-defeating if white students react by withdrawing from the city public schools. (Tr. 197-198.) Dr. Hansen was corroborated by Dr. James Coleman of Johns Hopkins University, Dr. Cline, and Dr. Coles, all of whom testified that Negro students’ educational achievement improves when they transfer into white or integrated educational institutions. (Tr. 880; 1770, 6558; Ex. A-24, pp. 20, 25, 38.) It might be expected that adjusting to a very new situation would inhibit the Negro students’ achievement for a while; but measurable jumps sometimes, though not always, can be recorded even in the first round of testing after integration (Tr. 6560); adjustment apparently more often assumes the form of productful stress than of incapaciting trauma. (Ex. A-24, p. 22.)

26

Their consignment to predominantly Negro schools, as Dr. George B. Brain, former superintendent of Baltimore schools and defendants’ expert, indicated, causes Negroes to feel that they are being discriminated against (Tr. 5084), or, as a Negro teenager told Dr. Coles, “contained.”

27

(Ex. A-24, p. 37.) It would be morally callous, and factually inaccurate, to suggest that their assumption that these schools wear “a badge of inferiority” stems solely from their free choice “to put that construction upon it.”

28

It was, again, Dr. Brain who testified that the nation in abolishing Negro slavery merely released the Negro into the bondage of an informal social and economic caste system cemented together by bias and discrimination. Despite the revolution of the last 13 years, these attitudes remain distressingly pervasive forces in race relations even today. What it means to be Negro in America thus “becomes a psychological fact in [the] daily lives” of Negro children, who are the heirs and victims of these traditions of prejudice, significantly influencing their attitudes toward study and education; understandably, in their view the predominantly Negro school is “part of a history of exile and bondage.” (Ex. A-24, pp. 25, 26, 37.) And Negroes read

*421

in the eyes of the white community the judgment that their schools are inferior and without status, thus confirming and reinforcing their own impressions. Particularly this is true in Washington, where the white community has clearly expressed its views on the predominantly Negro schools through the behavior of white parents and teachers who, the court finds, in large numbers have withdrawn or withheld their children from, and refused to teach in, those schools.

(E. g.,

Tr. 72,186-187.)

In an evironment defined by such unhealthy attitudes, it should not be surprising that the predominantly Negro schools show a pronounced intrinsic tendency to slide in a pathological direction. This of course affects the schools’ teachers, of whatever race, whose own demoralization and low expectations (Ex. A-24, pp. 35-36), communicated back to the children, contribute further to the schools’ social disintegration in a vicious though understandable circle.

II. Personnel Segregation and Discrimination

A.

School Board.

The nine members of the Washington School Board by law are appointed by the judges of Washington’s federal district court. 31 D.C.Code § 101 (1961), upheld in Hobson v. Hansen, D.D.C., 265 F.Supp. 902 (1967). The legislation expressly provides that three of the nine Board members shall be women and that members shall serve for three-year terms. The judges’ practice in carrying out their duties under the statute, which is silent on this question, has been to appoint Board members for staggered terms, filling three positions in each of a three-year cycle.

From 1882 on, the Board of Education, then named the Board of School Trustees, operated under an Act of Congress which expressly stated that the Board would have “nine members only (three colored).” Act of July 1, 1882, 22 Stat. 142 . This racial provision was omitted from the 1900 and 1906 statutes, the latter of which, commissioning the District Court judges to appoint the Board, is the law we operate under today. Beginning in 1906, the year the present statute took effect, and with no variation for 56 years thereafter, three of the nine Board members so appointed by the court were of the Negro race. This situation endured until 1962, since which time the court has consistently maintained the level of Negro membership on the Board at four, no more or less, and, of course, one vote short of a majority. (Ex. V-6.) Absent any rebuttal or explanation of these facts, and none has been forthcoming or, indeed, can easily be imagined, this court must conclude that for well over half a century membership on the Board of Education has been governed by a precise and unyielding racial quota; five years ago the Negro quota was increased to four, but the fact of the quota itself survived. In light of the fact that well over 60% of the city’s population and more than 90% of the public school enrollment are Negro, and assuming a quota system should be tolerated at all, the four-member quota gives Negroes less than proportional representation on the Board.

B.

School Personnel Discrimination

Following below are figures detailing the racial composition of the District public school system staff. As in Section I, again the school years represented are 1962-63 and 1966-67.

Per Cent Negro

1962-63 1966-67

Superintendent 0% (0/1) 0% (0/1)

His highest assistants 50% (5/10) 36% (4/11)

Other central officers 46% 61%

Principals and assistant principals 56% 69%

Teachers 73% 78%

(Ex. M-4; Court Ex. 2.)

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On this record the school administration cannot justly be accused of discriminatorily refusing to hire Negroes as teachers or to appoint Negroes to school principalships. Plaintiffs do advance the charge, though, that discrimination has insinuated into the selection of the school system’s key administrative officers, relying on the fact that only four of the 12 highest rungs on the hierarchy, and none of the positions at the very summit, are filled by Negroes.

But inasmuch as at least 30% of Washington’s population, and a greater share of the metropolitan area, are white, and since in hiring administrators the Board of Education can, should and does seek talent beyond local horizons in other cities’ school systems (Tr. 39, 2670), these figures carry very little probative value. Also, the court is mindful that centuries of exclusion and inferior education have depressed the present supply of Negroes qualified to fill ranking administrative positions. For these reasons, the court cannot conclude that the school administration on account of race has refused to appoint or promote eligible Negro candidates to the crucial positions in the governing structure.

C.

Segregation of School Personnel.

1. Though asserting no claim that Negro teachers are unable to gain employment in the District schools because of color, plaintiffs do insist that once hired Negro teachers are the victims of segregation in school assignments. The M-series of exhibits which affords the ammunition for this charge jumbles together teachers, counselors and librarians into one single category. This category the court christens “faculty,” or sometimes merely “teachers,” a fair enough substitute, since within the “faculty” teachers heavily predominate. The appropriate statistics follow below.

29

Elementary Schools

1962-63 1966-67

Number of Schools 100% 85-99% 64' 20 84 52 39 91

with 67-85% 7' 17

Per Cent 33-67% 15 10

Negro 15-33% 3 4

Faculty 1-15% 0% 3 17 20 8 13

Junior High Schools

Number

of 85-100% 12 16

Schools 67-85% 3 7

with 33-67% 6 3

Per Cent 15-33% 1 0

Negro 0-15% 1 1

Faculty

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Senior High Schools

Number

2 of 85-100% 2

4 Schools 67-85% 2

3 with 33-67% 3

1 Per Cent 15-33% 1

1 Noero 0 — 15% 3

Faculty

These tabulations carry dramatic and suggestive value in their own right. Of 135 elementary schools, 57 — over 40%— are minus even a single emissary from the other race. Only 17 of the 135 fall within the category (67-85%) which reflects the teacher racial count for the schools as a whole; and only ten of them are eligible for the integrated 33-67% class. The truth is transparent that no concept of a random distribution of teachers is capable of accounting for or rationalizing these results.

2. The inferences of intentional teacher segregation which arise from these figures are confirmed and elaborated by the analysis below, which knits together all the data on the racial patterns of students, teachers and school principals.

30

The first three pairs of charts show the racial concentration among the faculties in the elementary, junior and senior high schools, compared with the racial characteristics of the schools’ student bodies, for the school years 1962-63 and 1966-67. In the second series we see the correlation between the student racial character of the schools and the race of the principals who serve there.

*424

*425

<^hat all these figures place beyond dispute is that to a significant if not startling degree teachers and principals have been assigned to schools where their own race mirrors the racial composition of the schools’ student bodies) In a nutshell, white schools are usually paired with white faculties, Negro schools with Negro faculties; and integrated schools have integrated faculties.

Thus, for example, of the 109 predominantly (85-100%) Negro elementary schools in the District today, 90 have predominantly Negro faculties; of the others, all but five have faculties within the 67-85% range. Every school more than one-third white currently is assigned a faculty more than one-third white; at all but one of the 13 elementary schools that are more than two-thirds white the faculty is at least two-thirds white also. And perhaps the most provocative fact is that four years ago 15 of 17 predominantly white schools had

100%

white faculties. The mathematical possibility of this concentration of the relatively few white teachers in the school system’s relatively few white schools happening by chance defies calculation by methods available to mere laymen.

The pupil-teacher-principal racial correlations which are distilled from these tables do not, to be sure, work out with invariable precision as to every school; but even the deviations can be accounted for to a great extent in terms themselves, consistent with these correlations. School student bodies, for example, often swiftly jump from 40% to 75% Negro, or from. 75% to 95% ; therefore, even if the race of the faculty does respond to that of the student body, given the constraints on. teacher transfer and the finite number of yearly retirements, a lag in time of a few years should be expected before the faculty accomplishes the corresponding-racial change. This time lag is responsible for many of the deviations noted above. Only 19 of the 109 predominantly Negro schools in 1966-67 had other than predominantly Negro- faculties; the Negro student enrollment at seven of these 19 had been less than 85% in 1962-63, and for each of these seven the number of Negroes on the faculty grew markedly during the four-year interval. Evidently these faculties are in the process of catching up, racially. Others of the 19 may well have had substantial white enrollment prior to 1962.

Moreover, since 22% of all teachers,, but merely 9.2% of the students, are-white, at all grade levels we should expect some tendency, even if the correlations-hold, for faculties to have slightly higher white percentages than the student bod

*426

ies. A glance at the tables verifies that this tendency is apparent in the elementary schools and rather pronounced in the senior highs, where a typical school faculty is one category less Negro than the student body. It can be predicted that a like statistical inclination will be at work with respect to school principals, since a full 31% of them presently are white. Indeed, the facts show that any school with as many as 15% whites is more likely than not to have a white principal; and in schools more than one-third white, white principals are virtually the rule.

Finally, of the 19 predominantly Negro elementary schools without correspondingly Negro faculties, the court has stumbled on the fact that 14 of these serve relatively affluent neighborhoods,

i. e.,

where median family income in 1960 exceeded $6,000. Of the 27 elementary schools both affluent and predominantly Negro only 13 have predominantly Negro faculties.

(See

Ex. F-2.)

3.

Teacher Placement Policies.

When the raw data disclose personnel segregation as pervasive as this in a formerly

de jure

school system, and so thoroughly matched on a school-by-school basis with the racial make-up of the studentry, the burden falls on the school administration to clear the record by showing at a minimum that racially neutral policies are responsible for this result. The burden shifts from plaintiffs in large part because the figures themselves are persuasive circumstantial evidence of intentional segregation, but also because only the Board and the Superintendent have full information on their own teacher-assignment policies.

31

Postponing until Section 4 the question of how principals are assigned, the court now turns to the school system’s teacher placement mechanisms, insofar as defendants presented them at trial.

a.

1954-55.

Until 1954, of course, Washington school faculties were officially segregated by law. Assessing the faculty situation after the thunderbolt of Bolling v. Sharpe, the Board of Education quickly arrived at two decisions which it publicly announced. First, for the future teacher assignments and transfers would be predicated on merit rather than race; but second, the structure of faculty segregation which then prevailed would not be disturbed. That is, teachers would remain in their present assignments unless relocated pursuant to the ordinary rules governing teacher transfer. These rules will be elucidated in Section 3-c; it sufficés here to say that they exclude compelling a teacher to transfer for the sake of integration (the Superintendent feels such transfers would be “totalitarian” (Tr. 77)), and that the success even of a voluntary transfer request depends on such fortuities as a vacancy in the other school to transfer into.

It must have been crystal-clear from the outset that teachers would be reluctant to depart from schools where they were established and secure and brave transfer, at their own request, into institutions with faculties from which they had previously been barred because of their race. The Board’s policies thus plainly entailed the entrenchment and perpetuation of the teacher segregation of the past with a minimum of change. The court finds that at least a part of today’s segregation is attributable to the Board’s 1954 failure to shuffle faculties and thereby undo the

de jure

segregation which had theretofore been the rule. (Tr. 2897.)

This factor’s contribution to present segregation can most readily be discerned in a few of the elementary schools in the Northwest where, because of dwindling student enrollment, teachers as they

*427

retire are sometimes not replaced. Elsewhere, the influence of the inertia of the pre-1954 system seems slight. Eastern, McKinley and Roosevelt, the three former Division I high schools which within a few years of 1954 became predominantly Negro, today have 22%, 25% and 30% white faculty respectively. Cardozo and Dunbar, the two old Division II schools which have never lost their predominantly Negro status, have 11% and 21% teachers white. The differences between the former three and the latter two are not great; further, it is far from clear that the whites teaching at the three are carry-overs from bygone

de jure

days; and in each of the three it is certain that at least 70% of today’s faculty

(viz.,

all the Negroes) attached themselves to these schools subsequent to

Bolling.

This alone attests to the speed of teacher turnover. Indeed, other evidence corroborates that the faculty turnover rate in the District schools is high. In a single school year (1965-66), for example, the District schools employed at least 750 teachers new to this system (Ex. 35; Ex. 36); for 1948 the Strayer Report computed the turnover at 12%. (Ex. A-16, p. 53.) Because of speedy turnover, the perpetuation of the 1954 structure mathematically does not go very deep into the reasons why today’s faculty racial patterns appear as they do. The court therefore turns to the evidence respecting the school system’s current and recent policies for teacher placement.

b.

Integration policies.

First should be noted defendants’ insistence that for the past few years, though not before, its policy has been to exert a “maximum” and “concerted” effort to integrate school faculties. This effort allegedly has expressed itself along two fronts. White teachers are encouraged to volunteer for placement in Negro schools; and when the qualifications of hypothetical applicants for a position are exactly equal, the candidate will be preferred whose race will integrate that school’s faculty. (Tr. 68, 69, 77-78, 107, 2880, 2989.) The court notes that the entire discussion of these integration policies at trial was in the context of the rules controlling teacher transfers from .one school to another; it is a murky question whether these policies profess any relevance to the initial assignment of incoming teachers.

A further caveat is that the policies are couched in terms of achieving “biracial” faculties — by which the administration means simply less than 100% of one race.

(E. g.,

Tr. 73, 75.) It is evident that once token teacher integration breaches the color barrier in a school, the school administration policies slacken off or expire.

Efforts along the persuasion front, in any event, have admittedly and not surprisingly proved barren of fruit. (Tr. 68, 3013.) For all the record shows they were equally barren of effort. There was testimony at several points that the Superintendent formally asked his staff to encourage teachers to volunteer for the inner city ghetto; whether assistant superintendents or others took any systematic action on the basis of this request is another question. It may be true that the other aspect of the policy— the provision for resolving deadlocks among candidates by considering race— has led to the placement of one or two Negroes in “white” schools. (Tr. 2276;

see also

Tr. 3116-3117.) There is no evidence that under this program any Negro teachers were placed in any predominantly (85-100%) white schools or in any schools west of the Park,

c.

Teacher transfer.

Once a teacher has been assigned to a school, his subsequent placement is governed by the rules for teacher transfer, explored in some detail at trial. Occasionally, because of personality conflicts, the opening of a new school, the need for specialized teachers, or reasons of like character, teachers are involuntarily shifted from one school to another. Other transfers are voluntary. Some of the rules covering voluntary transfer policy are clear. No tenured or “permanent” teacher may transfer into any school if its faculty is already 70% permanent or more; proper applications for

*428

transfer will be honored in the order received.

On further standards governing treatment of transfer requests, administration spokesmen disagreed. Dr. Hansen argued that for the last four years transfer requests have met stiff resistance, winning approval only when clearly justified by considerations of health or “education.” (Tr. 68-69, 2273.) Moments later he stated that his administration has approved transfers for teachers wanting to serve at schools nearer their homes — a factor of convenience unrelated to education or health. (Tr. 2276.)

Assistant Superintendent John D. Koontz then proceeded to testify that the first transfer application received for a given opening is automatically granted, unless it offends the 70% permanent teacher rule (Tr. 2896, 3022); the transferor’s motives, by this account, are neither investigated nor evaluated. Mr. Koontz is the officer immediately in charge of teacher transfers in all secondary schools. (Tr. 108, 2610.) For this reason the court resolves the conflict of testimony in his favor. Furthermore, it was the Superintendent who admitted that many white teachers have transferred from Negro to white schools during the last ten years, “not always necessarily because of the difference in race.” (Tr. 2275.) The court finds, as this statement certainly recognizes, that some white teachers originally assigned to Negro schools have purposefully escaped therefrom via the transfer process.

It is doubtful, however, that racially-minded transfers have been common enough to afford a complete explanation, even when coupled with the continuing influence of

pre-Bolling

teacher segregation, for the dearth of white teachers in the predominantly (85-100%) Negro schools. Moreover, there is no reason in the record to assume that Negro teachers once assigned to predominantly white schools are eager to transfer away; therefore the court is still quite in the dark as to why the faculties of so many of the predominantly white schools are or have been so impeccably unintegrated. The missing ingredient, of course, in the account so far of teacher placement is the rule or rules which control the initial placement of freshman teachers. On these rules the court now steadies its focus.

d.

Original teacher assignment.

Once the decision is reached to employ a teaching candidate somewhere in the system, the matter returns to the assistant superintendent for elementary (or secondary) schools, who is responsible for the actual assignment. One rule recently postulated by the school administration concerning these assignments is an analogue of the 70% rule for transfers : certified teachers are placed, whenever possible, in schools with low percentages of permanent teachers.

Other than this, defendants merely assert and repeat that assignments are governed by merit and need alone.

(E. g.,

Tr. 69; Ex. L-4.) This is an unhelpful, evasive response. Annually a school system as large as ours with hundreds of vacancies each year must fill a dozen vacancies at every level,

e. g.,

fourth grade, high school math. An equal number of candidates get approved as qualified to teach in Washington’s schools, at least temporarily. To say that 12 new fifth grade teachers, to return to the example above, are sorted out among the 12 elementary schools needing these teachers on the basis of merit alone is an expression pregnant with little if any meaning.

In the record the court does find a scrap or two of evidence which begin to sketch out the real assignment processes. The Pucinski Task Force

32

reported that school principals informally recruit candidates for openings in their schools,

*429

the assistant superintendents then acceding to the preferences which the principals voice. (Ex. A-3, p. 44;

compare

Tr. 4041

with

Tr. 6024.) And one of defendants’ exhibits may or may not indicate that the incoming teacher’s own preferences are consulted by the assistant superintendent.

33

If these preferences are consulted, it is unclear whether they are respected only if the reasons supporting them are worthy of respect,

e. g.,

that one school is an excessive distance from home even by car.

(See

Tr. 3042, 6023.) If these reasons explaining teacher preferences are not reviewed for justifiability, then the unhappy facts that many white teachers are disinclined to serve in Negro schools (Tr. 72) and that a few Negro teachers hesitate to go to white schools (Tr. 2901) assume obvious relevance, as does the responsibility of the Board and school officials for pandering to any racial prejudices of the teachers.

In short, defendants have not shown that policies and practices free of racial criteria have been responsible for the patterns of teacher segregation in the District; many darkened areas still are clinging to the architecture of their teacher assignment policies, and it was on defendants that the duty to illuminate these areas fell. Accordingly, the court finds that an intent to segregate has played a role in one or more of the stages of teacher assignment. As to which of those stages, there is some suggestion in the record of self-segregation on the part of the teachers. But beyond that, the court cannot forget one remarkable fact: in 1962-63, eight years after “integration,” in a school system short on white students and white teachers, the faculties of 15 of 17 predominantly white schools were

100%

white. Since the record shows that many Negro teachers are quite willing to teach in white schools, absent further explanation— none was proffered — only one reasonable inference can be drawn: principals or assistant superintendents have deliberately excluded Negro teachers from these positions. The patterns of teacher segregation persisting, although in a less extreme form, and no evidence having been offered of any change in policy or practice since 1962, the court concludes that elements of deliberate segregation by such officials continue. The exact proportions of the responsibility for the present teacher segregation — the locus of primary guilt: teachers, principals, or higher school officials — the court does not and need not identify.

4.

Placement of Principals.

The factual data on principal segregation was reported in Section C-2-b above. The heart of this report was that neither in 1962-63 nor in 1966-67 was there even a single Negro principal or assistant principal in any school more than two-thirds white; this must be compared with the fact that system-wide 56% of all such school officials in 1962-63 — and 69% currently — are Negro. Testimony at trial verified that none of the white elementary schools in the Northwest has had a Negro principal at any time since desegregation. (Tr. 3076.) The court now seeks the explanation for these findings. For the reasons stated in Section 3, the burden of providing this explanation, the data having made out a

prima facie

case for intentional segregation, shifts to defendants.

After Bolling v. Sharpe, no dismantling for principals of the old Division I/II structure was carried out; principals, like teachers, stayed on in their 1953 assignments until their retirement, or unless transferred or promoted pursuant to the ordinary course of school business. But, as with teachers, the turnover has been rapid enough to minimize the present impact of this fact; since 1958 there have been 85 appointments of principals and assistant principals in the secondary schools alone, including all three positions at predominantly white Wilson High School. (Tr. 2890, 2962.)

*430

The court, in seeking the sources of present racial patterns among principals, must therefore zero in on the post

-Bolling

standards regulating principal appointment and assignment.

When a principalship falls vacant the school administration advertises for applicants. Such advertisements for the last several years have withheld the name of the school, although doubtless this information informally circulates. One advertisement may advert to several openings at the same level — say, several elementary school assistant principal-ships. Those who apply then run the gauntlet of interviews with an examining board which looks at “credentials, experience, this, that, and the other thing." (Tr. 2966.) The examining board submits its recommendations to the Superintendent who, after indicating his own preferences, turns the files over to the Board of Education, which must ultimately approve every appointment. If only one position is vacant, the victor in the competition gets that assignment. But if several positions are open, then, once the Board of Education identifies its several choices, the responsibility returns to the assistant superintendent for making specific assignments, matching up principal with school.

The court, regrettably, has been given scant evidence as to the criteria this officer employs in deciding on these assignments. Evidence was introduced concerning his reasoning in filling assistant principalships at Eastern, a ghetto high school, and Wilson, the overwhelmingly white high school in the Northwest. Miss Green, a Negro, had for many years been counselor at Spingarn, another ghetto school. Mrs. Carroll, white, was a tenured member of Wilson’s faculty. Miss Green was assigned to Eastern rather than Wilson because of her wide experience with the problems of lower class Negro adolescents. Mrs. Carroll was kept at Wilson for reasons of her acquired feel for the problems of its white, college-bound student body. (Tr. 2972-2973, 2994-3001.) These decisions were, as Assistant Superintendent Koontz said, “in a sense, racial * * * ” with respect to the “background of a person.” (Tr. 2994.)

The court at this point encounters a fork in the road. Some explanation must be found for the utter absence of Negro principals in the 67-100% white public schools — a condition which is the product of the appointments recommended by the examining board and of the assignments made by the assistant superintendent when two or more principals are appointed together. That the examining board or assistant superintendent assigns principals to schools on a racial basis is one obvious candidate. However, the GreenCarroII incident leads the court to wonder about an alternative explanation. The court is willing to assume that, for the same reason of relevant experience the school administration selected Mrs. Carroll for the Wilson post, a great number of the other official positions in the 67-100% white schools have been filled by promoting faculty members with years of teaching experience in the school in question, or transferring in someone from another white school equally middle class. If this is so, then the selection of those principals for the white schools has not been racially based in a narrow sense. But, unfortunately, it also indicates that principal assignment is a derivative of teacher assignment — which we already know to be intentionally segregatory. Since Negroes have been discriminatorily fenced out of teaching positions in white schools, it is a simple

a fortiori,

under this explanation, that they have not been eligible for the principalships in any of these schools. Because the exclusion of Negroes from administrative positions in the white schools is, under this theory, a direct product of intentional teacher segregation, it is a fit subject for constitutional criticism. This being so, it becomes unnecessary to decide whether a substantial number of principals have

not

been recruited from within the white schools for reasons of appropriate experience, and if so, whether the selection of these

*431

principals has been guided by a practice of deliberate segregation.

III. Equality in the Distribution op Educational Resources

Plaintiffs complain that, in dividing up the available educational wealth among the schools, the school administration has repeatedly favored white schools west of the Park, while shortchanging schools primarily attended by Negroes and especially the Negro poor. In this part of the opinion the court renders what findings are appropriate in the categories of school-resource analysis which were developed at trial. Testimony and argument focused chiefly on elementary schools, although the evidence (largely official data and reports) rather indiscriminately submitted for the court’s consideration often documented the situation for secondary schools as well. When on occasion the court does not explicitly discuss junior and senior high schools, it may be presumed that for those categories no noteworthy secondary school inequalities were found.

A.

Age of Buildings.

“The age of a school building is a factor in obsolescence and generally a criterion of safety and service.”

34

The chart below shows the age of elementary school buildings in the District.

(Ex. E-l.) Negroes, it appears, are housed in the newest but also in the oldest elementary school buildings in the city; the predominantly (85-100%) white structures were virtually all built in the late 1920’s and early 1930’s. A disturbing fact not evident from the chart itself is that the

slum

schools,

i. e.,

those located in areas where the median family income in 1950 fell short of $5,000,

35

have a disproportionate share of the most ancient structures; the median age of the ghetto school is almost 60 years. The comparable age for schools with predominantly Negro enrollments in middle-income or middle-class neighborhoods is only 41 years.

The high concentration of poor Negroes in the school system’s oldest buildings has come about not by Board of Education design, but as one consequence of its neighborhood school policy; poor Negroes happen to live in the vicinities of the oldest usable schools. Another outgrowth of that policy is the disproportionately high concentration of Negroes

*432

in schools built since 1940. New schools are erected where increased density of student population overloads existing facilities; and the areas of mushrooming population within the city in the last 25 years have mostly been overwhelmingly Negro or rapidly in process of becoming so. A large number of additions to ■overcrowded existing schools have been put up in recent years; these schools, for the identical reason, have highly Negro enrollments.

B.

Physical Condition and Educational Adequacy.

Schools which have been built here in the last eight years are equipped with •cafeterias and several other facilities, including auditoriums, health units and auxiliary classrooms; few of these features were known to the schools erected at earlier dates. Built sturdily 35 to 45 years ago, the schools west of the Park, although still in fine condition structurally, lack these facilities.

The school buildings which date back "to 1925 or earlier typically are “eight-room buildings with very large classrooms, poor natural lighting, large cloakrooms, huge open central hallways, basement toilets, and small paved play space or no play space at all.” (Ex. A-16, p. 401.) Most of them, as the figures in Section A indicated, are located in the Negro ghettos; unquestionably they, and the newer slum schools equally, are unable to escape being tarnished by the cancerous squalor which characterizes the slums.

During 1948-49 the Strayer Committee exhaustively analyzed each District school building, assigning numerical ratings for every school feature, from the topography of the site to the adequacy of the fire protection system. Its judgment was that 36 elementary schools, four junior highs and three high schools were so dilapidated or inferior that, generally, any further investment in them would be wasteful. It is a melancholy fact that 18 of the elementary schools, two junior and one senior high continue in use today as regular school buildings, as follows:

Junior High Senior High Elementary

Number

of 85-100% 17 2 1

Schools 67-85% 1

with 33-67%

Per Cent 15-33%

Negro 0-15%

Students

(Ex. A-33, pp. 24-26.) Of the 20 predominantly Negro schools on this list all but one are located in slum areas.

During the coming six years, under a plan adopted in August 1966, the school system will build 71 new elementary schools, or additions to older structures; and 32 other elementary school buildings will be modernized. (Ex. 75.) Many of the new buildings will go up where minor population explosions have generated the need; also, however, this six-year plan aims at junking schools whose facilities now are below a minimum level of educational tolerability. (Tr. 3605.) The Board is thus in the midst of a good faith effort to bring all the educational plants in the city up to rudimentary levels.

C.

Library Books, Libraries, Librarians.

Until two years ago the school administration budgeted the elementary schools no money at all for the purchase of library books. Any books the schools acquired were paid for by private gifts or donated directly by the PTA or other public-spirited groups; in one instance a District elementary school was given books by a suburban school which was

*433

enjoying a surplus. By June 1966 only 40 schools had as many as a thousand volumes on their shelves; system-wide, the average was a meager one-half book per student. No scarcities marred the predominantly white schools, however; there the median library books per student tally was a more impressive four and one-third. (Ex. H-3.) Also, the predominantly (85-100%) white high school, Wilson, had a greater number of library books per student than any other senior high; and Gordon, predominantly white, was in the upper half of the junior high rankings.

When elementary schools have managed to gather space and books enough for a viable library, the school administration has sometimes intervened and furnished a trained librarian to manage it. In 1965-66, of 133 elemental y schools, 90 had libraries, exactly half of which were presided over by professional librarians. (Ex. H-4.)

36

Included in the 90 schools with libraries were all 11 predominantly white elementary schools, but only 64% of the predominantly Negro schools and 47% of the Negro schools in slum areas. A greater percentage of predominantly Negro schools than white had librarians.

Sadly, even these figures on the number of libraries somewhat exaggerate current reality; in at least 30 of the schools counted here as having libraries, the rooms so designated are plainly makeshift and inadequate, “a scrounging operation.” (Tr. 6143.) There are, however, more hopeful signs for the future. Of the 45 schools without libraries in 1965-66,26 at least had space which can be converted to library rooms in the near future. All schools built since 1950 include rooms specifically designed as libraries. Through new construction, additions and reclamation of space presently used as classrooms, the school administration says it intends to equip every elementary school with a library by 1973. And with the aid of Title II of the Elementary and Secondary Education Act of 1965, the individual schools are now annually getting half a dollar per student for library book purchase (Ex. F-7; Tr. 614); the administration has identified its ultimate goal as five books per student in each school. (Tr. 2685, 3967-3971.)

D.

School Congestion.

The school administration has reckoned a figure for every Washington public school defining the maximum student capacity it can decently accommodate. The chart below relates the extent to which the elementary schools exceeded that capacity in 1965-66.

*434

(Ex. L-ll.) In short, the disparity between the patterns of overcrowding in predominantly Negro and white schools

37

is of very striking force. ■ Inequalities apart, the overcrowding in the predominantly (85-100%) Negro schools is of fearsome dimensions. These schools are in, as one school official volunteered, an “emergency situation.” (Tr. 2823.) In practical terms, what overcrowding entails is larger classes,

38

the shoehorning of students into spaces never intended to be used as classrooms, thereby depriving the schools of the auxiliary uses for which they were designed

(see

Tr. 6138), and in the few worst schools, split or double sessions

(see

Defendants’ Proposed Findings, p. B-10).

For junior high schools, the predominantly white (Deal) and the integrated (Gordon) schools each rank among the least crowded third of all junior highs. For high schools the Negro/white variation is even more prominent. Wilson, the one predominantly white high school, has been holding constant in the vicinity of only 92.3% of capacity; Western (integrated), growing slowly, now records 101.1%. The other high schools, all predominantly Negro, reach at least 108.4% (Roosevelt), leaping as high as 127.1% (Cardozo). (Ex. L-ll.)

The cure for overcrowding prescribed by the Board is construction of new schools in the heavily congested areas,

see

Sections A and B,

swpra,

and the provisional allowance of transfers from the buildings with the worst overcrowding into certain schools running below their student capacities designated as receiving or “open” schools for transfer purposes.

See

Section I-E-3-b.

E.

Quality of Faculty.

1.

Teacher experience.

Defendants volunteered the information, confirmed by the Task Force report, that teachers in the “older schools with stable or declining enrollments,” namely, the white elementary schools west of the Park, have had significantly greater teaching experience than the faculties at the Negro elementary schools. (Ex. 51, p. 2; Ex. A-3, pp. 15-17.) Defendants, however, denigrate the significance of this attribute, picturing the young teacher fresh from the university who may predictably turn in the superior teaching performance. All this may be true, but it remains beyond denial that, other factors equal, experience is a real asset for a teacher, as it is for any professional. The Washington school system’s pay scale, in proportioning salary to the number of years of teaching experience, is a testimonial to this fact. Moreover, it cannot be questioned that the initial few years of teaching make an enormous contribution to a teacher’s competence. A superior percentage of teachers at the predominantly (85-100%) white schools, the Task Force report shows, have these

*435

vital first years of experience to fall back on. Consistent with their denial of the relevance of experience, defendants have no plans in the works for the mitigation of this element of imbalance.

2.

Faculty education.

A greater number of teachers in the predominantly white than in all other elementary schools have graduate school degrees. This finding, suggested by the per pupil expenditure data, is confirmed by figures gathered by the Task Force. (Ex. A-3, pp. 15-17.)

3.

Temporary teachers.

A temporary teacher is one whose curriculum vitae is absent one or more of the various qualifications which the Board of Education otherwise requires of its teachers. If, as has regularly happened in recent years, teacher vacancies remain unfilled after the list of certified, qualified teachers has been exhausted, the assistant superintendents are authorized to hire enough temporary teachers to staff the schools adequately. Temporary teachers differ from their certified colleagues in that they are incapable of acquiring tenure rights; further, while at first they and the certified teachers draw identical salaries, after six years their pay hits a ceiling, their tern» porary status forfeiting their right to the yearly pay increase which permanent teachers thrive on. The school administration’s recent deletion of certain certification requirements will undoubtedly convert numbers of temporary teachers to permanent status.

It was the view of the Strayer Report in 1949 that “the large percentage of temporary teachers employed from year to year in the public school system of the District of Columbia presents an administrative problem of major concern, baffling in its implications.” (Ex. A-16, p. 50.) Since 1949 the problem if anything has become more acute; the number of temporary teachers in the schools, increasing steadily nearly every year, rose from 14.8% in 1948 to 19.1% in 1956-57, then soared to 40.0% in 1964-65. (Ex. A-16, p. 51; Ex. L-2.) In almost 50 elementary schools last year temporary teachers comprised a majority.

What is noteworthy is that at both primary and secondary levels the predominantly (85-100%) white schools, and those schools alone, have escaped an honest share of the burden. The chart below registers the percentage of temporary teachers on elementary school staffs in 1965-66.

(Ex. L-9; Ex. A-3.)

For junior high schools, Deal (predominantly white), with 26% temporary teachers, was by a wide margin in a better position than any other junior high; the predominantly Negro junior high schools had a median figure of 43%. As for senior highs, Wilson, the predominantly white school, had only 31% temp

*436

orary teachers, which is 13% below the next lowest school; the predominantly Negro high school median was near 50%. (Ex. L-9.)

The reason why this and the other teacher inequalities has come about is somewhat obscure. It apparently has something to do with teacher transfer practices, and with the fact that in recent years, when so many candidates have lacked certification, the white schools have done little hiring. There is little evidence that the school system has deliberately assigned the best faculties to the white schools, but at the same time it is not possible to say that the illegal aspects in the teacher assignment process,

see

Findings II-C have been without influence in the development of these inequalities.

In its only and rather belated attempt to equalize the discomfort of the temporary teacher situation, the school administration has recently ruled that tenured teachers are ineligible for transfer into schools where 70% of the faculty already have permanent status, and that there is a preference for placing incoming certified teachers at schools with few •of the same.

Defendants, joined on this point by the American Federation of Teachers,

amicus,

argue that temporary teachers are hardly inferior to those who are certified and permanent. Certainly the sterility of many college education courses, ■enrollment in which is one typical certification requirement, is very well known and widely deplored, and no claim can reasonably be made that every certified teacher outperforms every one of his temporary cohorts. But it would be unduly arrogant for this court to assert that the certification qualifications have no bearing on teacher quality. Especially for a teacher in his freshman year in the schools, for example, even a mediocre college course in teaching methods and curricula may be of great help. And those teachers who flunk the written examination the District requires have little to recommend them. If the school administration itself truly believed in the irrelevancy of its qualifications, it would abolish them all.

F.

Textbooks and Supplies.

The yearly expenditures in the schools for reference books, textbooks, and the various other school supplies run according to a uniform annual per-student figure which the school administration calculates. (Ex. F-7.) Individual school totals for a coming school year have their bases in the attendance figures at each school at the time the year before when the calculations are made, a practice which prejudices schools with expanding enrollments; textbook shortages so accruing can be met, however, by emergency textbook allocations in the course of the school year.

In 1964-65 the school administration, with money harvested from the federal impact aid program, purchased sufficient textbooks and reference material to cure deficiencies then reported by the school principals. Approximately $603,-000 was devoted in that school year to textbook purchases (Ex. 1-1), with allotments included for several predominantly white schools west of the Park in seeming violation of the congressional injunction, quoted below, that impact aid spending be concentrated in the slums.

Yearly expenditures for textbooks and supplies, thus, have been standardized, and all schools measure up to certain minimum levels. These facts fall short, of course, of guaranteeing that the depth of these materials at the various schools, accumulated through the years, is equitably in balance, and the court is aware of repeated complaints in the community of the outright absence of textbooks in some schools. But if such disparities do exist, plaintiffs have failed to bring them to light.

G.

Per Pupil Expenditures.

The figures below tabulate the median per pupil expenditure for the District elementary schools for the year 1963-64. Only expenditures from the schools’ share of the congressional appropriation for the District are represented here.

*437

That school year preceded enactment of two generous federal statutes, both of which identify slum schools as their intended beneficiaries

(see

Section H,

infra);

and the figures do not include grants received in that year under other federal aid-to-education statutes, a few of which similarly earmark the schools or projects for which they are intended. The data therefore facilitate the court’s exploration of the equities in the school administration’s distribution of assets among the schools in precisely those situations when the policies and purposes of distribution come squarely within its control.

Median 85-100% $292

39

for 67-85% 292

Schools 33-67% 273 ~l with L Per Cent 15-33% 325 J $306

Negro 0-15% 392

Students

These figures command attention, in view of our surprise that a sum as great as $100 should have separated the predominantly (85-100%) white from the predominantly Negro, indeed from virtually all the other elementary schools in the District. A review of the rankings further reveals that five of the eight highest-cost schools were predominantly white, while of the 25 cheapest schools, 23 were predominantly Negro and all 25 were more than half Negro. A quick rearrangement of the data uncovers this even more troublesome fact: the median per pupil expenditure for the 13 elementary schools west of the Park was

$k%k-

Confronted with these spectacular differentials, defendants argue they are paper statistics only, unrepresentative of the educational resources actually devoted to or expended at the various schools.

40

In fact defendants do succeed in proving that a fraction of the $100 differential in 1963-64 can be accounted for by circumstances which do not betoken real inequalities in educational opportunities. Special, untypically small classes for children with physical or emotional disabilities meet in special classrooms in several of the predominantly white schools; the high expenditure for these few needy students drives the school-wide average up. Most of the higher-cost elementary schools are very small; larger schools can save on certain costs which do not vary with the size of the school — administrators’ salaries, particularly — and on other important economies of scale. Further, many of the very high-cost white schools are under-crowded, operating at much less than capacity. This further elevates the per pupil expenditure for items, like heat, which remain constant for a school no matter what its degree of utilization.

So

wasteful in this regard are several of the

*438

white schools west of the Park that last year the Government Accounting Office proposed they be phased out as classroom buildings. (Tr. 3719-3724.) The Board decided not to carry out this recommendation; instead it is cutting into the bounty of empty classrooms by converting the classrooms in a few of these schools into office space for school-system administrative officials. But in other schools rooms are vacant.

To a great extent, however, defendants’ own evidence verifies that the comparative per pupil figures do refer to actual educational advantages in the high-cost schools, especially with respect to the caliber of the teaching staff. A study of the 1962-63 per pupil expenditures disclosed that the average teacher salary at the 26 most expensive elementary schools (median: $387) was $7,742, compared with $5,864 in the bottom 26 (median: $246). At defendants’invitation, the court assumes that a like differential characterized salaries between high-cost predominantly white and all other schools a year later. Teacher salary is an index summarizing several factors: years of experience; graduate degrees ; permanent/temporary status. The court assumes, again at defendants’ invitation, that the predominantly white schools hold a profound advantage for each of these salary determinants. But these elements point with cogent force to teacher superiority in the predominantly white schools.

Even once all these extenuations and explanations have been introduced, the court is still without confidence that the very disturbing $100 (or $132) margin has been wholly accounted for. Neither the graduate-degree nor the temporary-teacher factors can have very dramatic impact on the per pupil expenditure: the maximum salary increase to which the extra degrees entitle the teacher is $500; and only a minor number of temporary teachers has served in the schools for as many as six years, the time when the ceiling on temporary teachers’ salaries sets in. While the Pucinski Task Force did indeed turn up substantial differences in years of experience for teachers in predominantly white and in other schools, it is not altogether clear that these differences are sufficiently drastic to result in so great a spread in the per pupil expenditure figures.

And other possible explanations for the differentials falter. The study of the 1962-63 figures discovered that teacher-pupil ratios that year were lower in the high-cost schools, driving per pupil expenditure upward; defendants, however, here have denied that classes are of smaller size in the predominantly white schools, and one puzzling exhibit comes to the aid of their denial.

See

Note 38

swpra.

That study also highlighted the age of the higher-cost schools, contending that maintenance costs accelerate as school buildings approach obsolescence. But this explanation cannot be resorted to here, since in the main the predominantly Negro schools are older than the structures west of the Park; and it is the poor Negroes who are shunted into the •oldest buildings in the District. If any schools demand a fortune for maintenance and upkeep, it should be the likes of Shaw Junior High (1902) and Gage Elementary (1904) in the heart of the ghetto, not the buildings concededly in excellent physical shape beyond the Park divide. Yet the overall expenditures at Shaw and Gage ($279) are quite low. Gage, moreover, also has a very old building and a low enrollment, factors which inexorably lead, defendants say, to higher budgets. So have Madison, Pierce and Lenox Annex, and yet these three schools rank among the lowest ten ($248, $235, $235).

H.

Curricula and Special Programs.

Following below is a catalogue of courses and extraordinary services offered by the Washington public school system at one or more selected schools.

1.

Kindergarten.

Unlike many American urban school systems, the Washington schools have avoided undertaking responsibility for providing kindergarten education on a universal basis. Attendance at kinder

*439

garten is not compulsory (Tr. 183), or even possible on a voluntary basis unless the neighborhood elementary school has a surplus of classroom space after its first through sixth graders have been taken care of. As a matter of fact, space in the white elementary schools is liberally available; every youngster in those neighborhoods applying to enroll in kindergarten is accommodated. (Tr. 626.) But at many Negro schools there are waiting lists. (Tr. 627.) “From 1956 to 1965, 6,236 children on waiting lists for kindergarten were denied admission for lack of space.” (Ex. A-3, p. 10.) 1965-66 began with 445 children inscribed on the waiting lists at the various schools, 100 of whom remained thereon through the finish of that school year. (Tr. 626.) Forty-five youngsters were excluded last September from kindergarten into two predominantly Negro elementary schools alone. (Tr. 6184-6185.) Other schools have rather unsatisfactorily evaporated their waiting lists only by shortening kindergarten class time to as little as two hours a day, then running three sessions each day consecutively. (Tr. 4068-4069.)

If oversubscription prevents a five-year-old from enrolling in his own school’s kindergarten class, he may despite the neighborhood rule sign up at any other elementary school able to advertise kindergarten vacancies; but his parents apparently must supply his transportation. (Tr. 6184.)

It is not clear whether the six-year building program now in its initial stages, apart from the question of whether it will be outstripped by unpredictedly rapid population spurts, has as one of its objectives the creation of enough class space to afford every interested youngster a kindergarten experience in his neighborhood school.

2.

Honors Track.

Only a small number of predominantly Negro elementary schools offer the Honors “Track,” the highest rung in the school system’s track system of ability grouping. By contrast, virtually all of the predominantly white elementary schools have Honors Tracks. These figures will be arrayed in the findings on the track system below.

3.

Model School Division.

The most ambitious enterprise launched by the school system in this decade is the Model School Division, a geographically compact area in the Northwest embracing 25 schools, most of them in the Negro ghetto, including 13 at the elementary level. The Division is to function as a laboratory for educational experiments aimed at alleviating students’ cultural and academic deficiencies; the hope is that the more successful innovations can be applied to the entire school system, or at least to all those local schools which must regularly cope with underprivileged youth. Approved by the Board of Education in 1964, the Division swung into operation in March 1965, and by fall 1965 75 projects had been initiated, including ungraded primary classes, remedial reading instruction using modern techniques, and occasional visits to the theater. A year later, however, only one of these projects had proved itself unequivocally worthwhile, an internship teacher-training program (Tr. 478-479); and the Division had run into criticism from the Pucinski Task Force, which suggested that it “to date has been, for the most part, a deplorable disappointment.” (Ex. A-3, p. 70.)

The Division has been financed primarily by the Office of Economic Opportunity under Title II of the Economic Opportunity Act of 1964, 42 U.S.C. §§ 2781-2791 (1964), as amended, via the United Planning Organization, Washington’s community action agency. The Economic Opportunity Act generally requires a 10% local contribution, § 2788, but that may be met by imputing the value of volunteers’ services. Presently at least one of the Division’s important programs is being funded under Title I of the Elementary and Secondary Education Act of 1965, 20 U.S.C. §§ 241a-241i (Supp. I 1965). Additional backing has come from other titles of the 1964 Act, and also from the U. S. Office of

*440

Juvenile Delinquency under 42 U.S.C. § 2542 (1964), the Ford Foundation, and a few generous private corporations. (Ex. 1, p. 34.)

4.

Impact aid programs.

The federal impact aid legislation, 20 U.S.C. §§ 236-244 (1964), which requires no matching funds, supplies federal financial assistance to school districts whose tax base is cut into by federal ownership of local property, or which enroll large numbers of children who live on federal property. On the theory that the District of Columbia is sufficiently compensated by the public school component of the general appropriation it annually receives from Congress, until 1964 it had not been eligible for impact aid grants.- In that year Congress, noting that if any school district is federally impacted Washington’s is, amended the statute to include the District. 20 U.S.C. § 244 (8) (Supp. I 1964). This amendment, stapled to the National Defense Education Act Amendments of 1964, was acquiesced in by the House managers at conference. They reported back to the House as follows:

“It * * * is the opinion of the conferees that insofar as is consistent with good educational administration, these funds be used to improve the quality and standards of the educational offerings in the underprivileged attendance areas of the city.”

H.Rep. 1916, 88th Cong., 2d Sess., p. 14 (1964), U. S. Code Cong. & Admin. News 1964, p. 4056.

The District’s impact aid allowance, as determined by the statutory arithmetic, is $4,300,000. This the District received in full for 1965-66 and 1966-67, after having hastened to collect a quarter of this figure at the tail end of the school year 1964-65. (Ex. 1-7.) The most expensive items in the portfolio of 40 programs subsidized by impact aid in 1965-66 were extra school counselors ($470,000), additional school supplies including charts and globes ($459,000), and free breakfast and other kitchen provisions.

5.

ESEA programs.

The Elementary and Secondary Education Act of 1965 was the expression of a crucial new federal commitment to the vitality of public school education. Title I of that Act held out the lure of 100% federal assistance for programs which engage the “special educational needs of educationally deprived children.” 20 U.S.C. § 241a (Supp. I 1965). The District’s annual entitlement under the Title I formula is more than $6,350,000. (Ex. 1-7; Ex. 1-8.) Included for 1965-66 was $1,270,000 for “environment improvement” of slum schools, almost $1,-000,000 for efforts to identify at an early age those youngsters who in high school will be particularly “drop-out prone” (Tr. 588), and $125,000 for an early-morning curriculum of calisthenics followed by hot breakfasts for ghetto children.

6.

WISE.

The southern half of the region west of Rock Creek Park is Washington’s most thoroughly integrated area, both residentially and in school enrollments. The District hopes to make this area more attractive, and hence more stable, by strengthening the junior and senior high schools under a program now in gestation dubbed Washington Integrated Secondary Education, or WISE. (Tr. 462-466.) The WISE prospectus optimistically envisions “maximum community involvement,” “a vital, dynamic attitude * * on the part of school administrators and staff,” and freewheeling student discussion of “controversial issues.” (Ex. 1-6.)

The energy driving WISE will be federal grants. On the theory that slightly less than a third of the students within the WISE boundaries come from comparatively poor neighborhoods, the District applied $30,000 of impact aid funds for WISE in its planning stage. (Tr. 466-467.) If officials finally determine that impact aid can properly be applied to WISE, it will provide all the financing when WISE at last begins its career in earnest; if unavailable, the school administration will turn to Title III of ESEA, 20 U.S.C. §§ 841-848

*441

(Supp. 1 1965) (innovative projects; not limited to slum schools) or other federal sources. (Ex. N-ll; Tr. 462, 2659.)

7.

Miscellany.

There are additional federal statutes which bestow benefits on some but jess than all of Washington’s schools. Under the special milk program, 7 U.S.C. § 1446 (1964), for example, milk is distributed daily at low cost in schools serving low-income areas. And the schools won an $85,000 grant from the Office of Education for experiments dealing with the problems growing out of desegregation. Beyond all these federal programs stand a number of projects sponsored by PTA’s or various private benefactors which likewise are selective among schools in their impact. As one instance, the Eugene Meyer Foundation, to which the community certainly owes its gratitude, has financed a cluster of enterprises under the rubric Urban Service Corps. Drawing in volunteers from the affected communities, these programs provide children in certain underprivileged schools with an array of academic, cultural and athletic opportunities. (Ex. 1, pp. 1-32.)

Finally, according to the Board’s publication Innovations in Instruction (Ex. 1), there is a handful of programs each operating in one or a few schools, the cost of which the Board of Education itself defrays out of its share of the District’s congressional appropriation. At Cardozo High School, for example, 60 students have participated in career training and placement sessions. Jefferson Junior High is currently experimenting rather successfully with its curricula and with new methods of class and school organization.

I.

Individual Schools in Transition.

Defendants focus attention on five elementary schools which switched from white to Negro majorities between 1962-63 and 1965-66, offering data in support of the argument that the educational resources devoted to these schools increased over these years, or at least that the schools held their own. These schools are Congress Heights (from 4% Negro to 53%), Shepherd (from 18% to 53%), Takoma (from 49% to 65%), Draper (from 49% to 91%), and Hendley (from 40% to 91%). The court’s caution is alerted by the fact that defendants have omitted to mention or introduce figures for three other schools in which Negroes captured the majority between these years: Randle Highlands (from 11% to 58%), Ketchem (from 9% to 58%), and Jackson (from 16% to 59%).

Even for the schools they select, defendants have failed to show that their racial transitions have been unaccompanied by any restraints on their receipt of educational resources, except for library books where the increase in their number of volumes was very substantial. In four of the five schools, the number of certified teachers improved over the course of these years; but in every one of the five the number of temporary teachers also went up. (Ex. 21.) It is very doubtful that the overall increment for the five of one librarian and two counselors is anything but representative of like increases in the Washington schools during this period system-wide. Finally, between 1962-63 and 1964-65 the per pupil expenditure at these five schools increased by an average of $14. (Ex. 23.) But between 1963-64 and 1964-65 (the only years for which the requisite figures are available), two of the three schools not mentioned by defendants incurred losses in the per pupil expenditure figure. (Ex. F-l; Ex. F-8.) And what is more conclusive is that during these years the average expenditure per student throughout all the schools advanced nearly $30. (Ex. F-5.)

J.

Conclusion.

The collapse, however, of defendants’ argument above entails no significant consequences. What the demonstration was apparently intended to repel was the idea that the Negro schools have been deliberately and discriminatorily deprived of supplies by school officials. This, indeed, is one aspect of plaintiffs’ argument. But it is not one which the court can accept. The causes of the inequal

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ities are relatively objective and impersonal. School officials can be faulted, but for another reason: that in the face of these inequalities they have sometimes shown little concern. It is one thing, to be precise, when crowded residential conditions shut Negro children, and them alone, out of kindergarten in the nearby schools; it is something else when school officials acquiesce in the situation once it arises by standing passively by, circulating promises of more adequate school buildings years hence.

IV. The Track System

The District of Columbia school system employs a form of ability grouping commonly known as the track system, by which students at the elementary and secondary level are placed in tracks or curriculum levels according to the school’s assessment of each student’s ability to learn. Plaintiffs have alleged that the track system — either by intent or by effect — unconstitutionally discriminates against the Negro and the poor. In support of this claim they— ■and the defendants in meeting it — have .introduced a massive array of testimonial and documentary evidence. The court will first turn its attention to the beginnings of the track system before moving on to a discussion of the evidence concerning the present-day operation of ability grouping in the District.

A.

Origin.

The track system was approved for introduction into the Washington school system by the Board of Education in 1956, just two years after the desegregation decision in Bolling v. Sharpe. As Superintendent Hansen has conceded, ■“to describe the origin of the four-track system without reference to desegregation in the District of Columbia Public Schools would be to by-pass one of the most significant causes of its being. Desegregation was a precipitant of the four-track development in the District’s high schools * * *.”

41

Plaintiffs, citing this concession and certain observable segregatory effects of the track system, have claimed that the principal motivation behind the system was and is to resegregate the races in violation of the

Bolling

decision. Defendants have denied this, arguing that the track system is and always has been a legitimate pedagogical method of providing maximum educational opportunity for children of widely ranging ability levels; and that any racial effect is but an innocent and unavoidable coincidence of ability grouping.

There is evidence which on its face supports defendants’ claim that racial considerations were irrelevant to the decision to adopt the track system. Yet, as in certain other administrative decisions where defendants have purported to act without regard to race, the taint of segregation hangs heavy over their actions. Although Dr. Hansen has maintained that the origins of the four-track curriculum “clearly precede the event of desegregation,”

42

there is no escaping the fact that the track system was specifically a response to problems created by the sudden commingling of numerous educationally retarded Negro students with the better educated white students.

On May 17, 1954, the day Bolling v. Sharpe was handed down, there were 44,897 white students (43%) and 59,963 Negro students (57%) in the District schools. By the following September 73% of the schools were — in varying degree- — -racially mixed. Until that time no one was aware of the overall achievement level of the Negro students because achievement scores had not been reported on a city-wide basis in the old Division II (Negro) schools. However, soon after integration Dr. Hansen, then Assistant Superintendent in charge of senior high schools, began to receive “reports of very serious retardation in

*443

achievement in the basic skills * *.”

43

The results of a reading and arithmetic achievement test taken by tenth grade students early in 1955 and for the first time reported on a city-wide basis confirmed the reports: (1) Both reading and arithmetic scores ranged from second to beyond twelfth grade; (2) nearly 25% of the students were at or below sixth grade level in reading, and 44% were at or below sixth grade level in arithmetic.

44

The low achievers were predominantly from the Division II schools. (Tr. 381.) It was the discovery of this large number of academically retarded Negro children in the school system that led to the institution of the track system.

Given these unhappy consequences of “separate but equal” education, Superintendent Hansen cannot be faulted for moving in 1955 to treat the casualties of

de jure

segregation. The court is persuaded that Dr. Hansen personally was then and is now motivated by a desire to respond — according to his own philosophy — to an educational crisis in the District school system. On the other hand, the court cannot ignore the fact that until 1954 the District schools were by direction of law operated on a segregated basis. It cannot ignore the fact that of all the possible forms of ability grouping,

45

the one that won acceptance in the District was the one that — with the exception of completely separate schools — involves the greatest amount of physical separation by grouping students in wholly distinct, homogeneous curriculum levels. It cannot ignore that the immediate and known effect of this separation would be to insulate the more academically developed white student from his less fortunate black schoolmate, thus minimizing the impact of integration; nor can the court ignore the fact that this same cushioning effect remains evident even today. Therefore, although the track system cannot be dismissed as nothing more than a subterfuge by which defendants are attempting to avoid the mandate of Bolling v. Sharpe, neither can it be said that the evidence shows racial considerations to be absolutely irrelevant to its adoption and absolutely irrelevant in its continued administration. To this extent the track system is tainted.

46

The court does not, however, rest its decision on a finding of intended racial discrimination. Apart from such intentional aspects, the effects of the track system must be held to be a violation of plaintiffs’ constitutional rights.

(See

Opinion of Law.) As the evidence in this case makes painfully clear, ability grouping as presently practiced in the District of Columbia school system is a denial of equal educational opportunity to the poor and a majority of the Negroes attending school in the nation’s capital, a denial that contravenes not only the guarantees of the Fifth Amendment but also the fundamental premise of the track system itself. What follows, then, is a discussion of that evidence— an examination of the track system; in theory and in reality.

B.

Track Theory.

Basic to an understanding of the conflict between the parties in this lawsuit is an appreciation of the theory that motivates the track system as it operates in the District school system. The most comprehensive statement of that theory can be found in Dr. Hansen’s book, Four Track Curriculum For Today’s High Schools, published in 1964.

47

Although

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Dr. Hansen disclaims full responsibility for creating the track system, a reading of his book leaves no doubt that it was his firm guiding hand that shaped that system in its essential characteristics.

48

Thus, as principal architect of the track system and as Superintendent of Schools, Dr. Hansen presumably can be looked to as the authoritative spokesman on the subject.

Purpose and philosophy.

Dr. Hansen believes that the comprehensive high school (and the school system generally) must be systematically organized and structured to provide differing levels of education for students with widely differing levels of academic ability. This is the purpose of the track system. In expressing the track system’s philosophy Dr. Hansen has said, “Every pupil in the school system must have the maximum opportunity for self-development and this can best be brought about by adjusting curriculum offerings to different levels of need and ability as the pupil moves through the stages of education and growth in our schools.” (Ex. 9, C-16:

How We Are Meeting Individual Differences.)

And he has identified as the two objectives on which the track system is founded: “(1) The realization of the doctrine of equality of education and (2) The attainment of quality education.”

49

Student types.

Within the student body Dr. Hansen sees generally four types of students: the intellectually gifted, the above-average, the average, and the retarded. He assumes that each of these types of students has a maximum level of academic capability and, most importantly, that that level of ability can be accurately ascertained. The duty of the school is to identify these students and provide a curriculum commensurate with their respective abilities. Dr. Hansen contends that the traditional school curriculum — including the usual two-level method of ability grouping— does a disservice to those at either end of the ability spectrum.

The gifted student is not challenged, so that he becomes bored, lazy, and perhaps performs far below his academic potential; his intellectual talents are a wasted resource. The remedy lies in discovering the gifted student, placing him with others of his own kind, thereby stimulating him through this select association as well as a rigorous, demanding curriculum to develop his intellectual talent.

50

Indeed, “the academically capable student should be required as a public necessity to take the academically challenging honors curriculum.”

51

On the other hand, continues Dr. Hansen, the retarded or “stupid” student typically has been forced to struggle through a curriculum he cannot possibly master and only imperfectly comprehends. Typically he is slow to learn and soon falls behind in class; he repeatedly fails, sometimes repeating a grade again and again; he becomes isolated, frustrated, depressed, and — if he does not drop out before graduation — graduates with a virtually useless education. Here the remedy is seen as separating out the retarded student, directing him into a special curriculum geared to his limited abilities and designed to give him a useful “basic” education — one which

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makes no pretense of equalling traditionally taught curricula.

52

In short, Hansen views the traditional school curriculum as doing too little for some students and expecting too much of others. As for the latter type, whom Dr. Hansen characterizes as “the blue-collar student,” going to school — a “white-collar occupation”— can be an artificial experience.

“Twelve years of white-collar experience is unrealistic preparation for the young man or woman who will suddenly make the change into work clothes for jobs in kitchens, stockrooms, street maintenance or building construction.

*• # * * * * *

“One reason [for education’s failure to meet the needs of the blue-collar student] * * * is that it is at best an environment artificially created for the education of the young. From the beginning of his career in school, the child enjoys the comforts of a protected and unrealistic environment. Most of the Nation’s classrooms are insulated from reality. To many students what happens in the classroom has little connection with what happens outside the classroom.

“Another reason * * * is that the school environment excludes most of the sterner discipline of the work-a-day world. * * * ”

53

Tracking.

In order to tailor the educational process to the level appropriate to each student, Dr. Hansen adopted the track system. Each track is intended to be a separate and self-contained curriculum, with the educational content ranging from the very basic to the very advanced according to the track level. In the elementary and junior high schools three levels are used: Basic or Special Academic

54

(retarded students), General (average and above-average), and Honors (gifted). In the senior high school a fourth level is added: the Regular Track, a college-preparatory track intended to accommodate the above-average student.

The significant feature of the track system in this regard is its emphasis on the ability of the student. A student’s course of instruction depends upon what the school system decides he is capable of handling. “It took a while for everybody on the [working] committee to understand that

ability was to be the primary key to the placement in a curriculum sequence, and that this factor, not the subject-matter emphasis, was one of the unique characteristics of the four-track system.”

55

Flexibility.

Dr. Hansen, while assuming that some students can be educated to their maximum potential in one of the four curricula, also anticipates that not all students will neatly or permanently fit into a track. Thus a second important assumption underlying the track system is that tracking will be a flexible process. Flexibility encompasses two things: First, although a student today may demonstrate an ability level which calls, for example, for placement in the General Track, a constant and continuing effort must be made to assure that he is at his true ability level. This calls for instruction directed toward correcting any remediable educational problems which account for the student’s present poor performance; and it calls for close analysis and counselling to determine whether these remediable deficiencies exist and when they have been sufficiently corrected. When the latter is determined, the student is to be upgraded to the next higher track. Second, even though a student may not be in a position to make an across-the-board move from one track to another, his ability level may be such that he needs to take courses in two track levels on a subject-by-subjeet basis. This process, known as cross-tracking, is critical: it

*446

is the mechanism the system relies upon to assure that students whose ability levels vary according to particular subjects are not thwarted in developing their strong areas because their weak areas result in their being placed in a lower curriculum level. It also serves as a way of selectively raising the intensity of instruction on a subject-matter basis as a part of the process of gradually upgrading a student.

Fundamental assumptions.

To summarize, the track system’s approach is twofold. The separate curriculum levels are for some the maximum education their abilities permit them to achieve. For others, a track is supposed to be a temporary assignment during which a student’s special problems are identified and remedied in whatever way possible. The express assumptions of this approach are three:

First,

a child’s maximum educational potential can and will be accurately ascertained.

Second,

tracking will enhance the prospects for correcting a child’s remediable educational deficiencies.

Third,

tracking must be flexible so as to provide an individually tailored education for students who cannot be pigeon-holed in a single curriculum.

C.

The Tracks.

1.

Honors.

Purpose.

The Honors Track is for the gifted student, its purpose being to provide him with- an enriched, accelerated curriculum and to stimulate scholarship by placing him with similarly gifted students. (Ex. 9, C-16; Ex. B-ll, pp. 162-163.)

Criteria.

Elementary school children are eligible for Honors classes upon “recommendation by the principal and teacher, based upon the pupil’s school record and physical maturity with achievement at least one year beyond national norms in reading and arithmetic * * (Ex. 9, C-16.)

At the junior high school level the student is judged in terms of the following: “1. Scholastic ability; 2. History and good study habits; 3. Emotional and physical stability; 4. Achievement-test scores above grade level in English and mathematics; 5. Interest in being in the Honors Track; 6. Approval of parents and principal.”

{Ibid.)

For senior high school the criteria are as follows:

“The student is admitted to this curriculum only on his own election and only if he is eligible. Eligibility for the honors curriculum requires the following: (a) demonstrated ability to do difficult academic work as shown by previous academic record; (b) ability to read two or more grades above grade level; (c) achievement test scores in the upper quartile in standardized tests ir. language and mathematics ; (d) mental ability indicated to be in the upper quartile; (e) emotional and physical stamina for difficult work; (f) demonstrated enthusiasm for honors placement; and (g) the written approval of parents or guardians.

“If a student shows a general aptitude for honors placement, he may be programmed in the curriculum even if he is deficient in up to two of the foregoing prerequisites.” (Ex. B-ll, p. 52.)

56

Structure.

Honors classes do not begin until the fourth grade. (Tr. 242.) At that time an eligible student may be placed in a separate Honors class at his own school, if there are enough other eligible students to warrant setting aside classroom space and assigning a teaeh

*447

er. (Tr. 6189.) If there are not, apparently an Honors group might be organized within the regular classroom (Ex. 9, C-16) — although this would seem to be contrary to the concept of having wholly separate curricula. More commonly, the student has to transfer to the nearest school having an Honors class to obtain such instruction. (Tr. 6121, 6189-6190.)

Curriculum.

In elementary school the Honors curriculum is an accelerated and enriched version of the standard curriculum. (Tr. 4032-4034; Ex. 9, C-16; Ex. 95.) The same is generally true for the junior high school; in addition, some senior high school subjects are offered to ninth graders. (Ex. 9, C-16.)

In senior high school the content of the various curriculum levels is significantly different, as are graduation requirements. To graduate from the senior high school Honors Track the student must complete 18 Carnegie units,

57

16 of which are required and 1% elective. The required subject areas are English (4 units), mathematics (Algebra I and II, and plane geometry; 3 units), foreign language (4 units), social studies (ancient-medieval history, U. S. history, and U. S. government; 2% units), and science (biology, chemistry and physics; 3 units). (Ex. B-ll, p. 60.) There is a wide selection of electives, including many advanced academic subjects. (Ex. G-l, pp. 3-13.)

2.

Regular.

Purpose.

This is a college preparatory track, found only at the senior high school level. It “provides the hard-core of academic offerings normally required for college entrance.” (Ex. 9, C-16.) According to Dr. Hansen, it merely continues the advanced curriculum found in all high schools having a two-level curriculum sequence

(i. e.,

college preparatory and terminal) (Ex. B-ll, pp. 35-183), although he suggests embodying it in a track level tends to enhance its prestige and effectiveness in stimulating scholarship.

(Id.

at 41.)

Criteria.

To qualify for the Regular Track the student must have:

“ * * * (a) demonstrated ability to do academic work successfully as indicated by the student’s scholastic record ; (b) ability to read at grade level or above; (c) achievement scores in standardized tests at or above grade level in language and mathematics; (d) mental ability at or above high normal; (e) physical and emotional stamina to undertake a demanding program of studies; (f) interest in doing college preparatory work; and (g) written approval of parents or guardians,” (Ex. B-ll, p. 52.)

Another version of these requirements includes the statement that the student must have “generally, high normal IQ, or above * * (Ex. G-l, p. 14.)

Curriculum.

Sixteen Carnegie units must be completed to graduate from the Regular Track. Of these, 10% are in these required subjects: English (4 units), foreign language (2 units), mathematics (algebra, geometry; 2 units), science (biology, chemistry or physics; 1 unit), and social studies (U. S. history, U. S. government; 1% units). (Ex. B-11, pp. 60, 62.) As in the case of the Honors curriculum, offered electives include a number of advanced academic subjects. (Ex. G-l, pp. 13-23.)

3.

General.

Purpose.

At the elementary and junior high school levels the General curriculum serves the bulk of the students, excepting only those considered bright enough for Honors or slow enough for Special Academic. (Tr. 233-234; Ex. 9, C-16.)

At the senior high school level, however, the nature of the General Track becomes more specific. It is expressly a curriculum “designed to serve students, of normal intelligence levels who plan to go to work immediately upon graduation.” (Ex. 9, C-16.)

Curriculum.

For elementary and junior high schools the General curriculum

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is simply a normal primary or secondary program. (Tr. 4038-4034; Ex. 9, C-16; Ex. 95.) However, given the fairly broad range of ability levels in the General Track, there is subgrouping of students so as to narrow the range of differences; thus there may be a slow General group and a fast General group.

(See

Ex. 9, C-16.)

In senior high school, in keeping with its terminal nature, the pure General curriculum is vocationally oriented. (Ex. G-l, pp. 26-38; Ex. 9, C-16; Ex. B-ll, pp. 63-67.) Students who desire a college preparatory curriculum must, for the most part, elect courses from the Regular Track, but may do so only if qualified for the more advanced instruction. (Ex. B-ll, pp. 63-65.)

(See

Section E,

infra.)

Sixteen Carnegie units are required for graduation, 7x/2 of them in these required subjects: English . (4 units), mathematics (general mathematics, business arithmetic, or — if qualified — algebra; 1 unit), science (descriptive biology; 1 unit), social studies (U. S. history, U. S. government;

iy2

units). (Ex. B-ll, p. 64.)

4.

Special Academic (Basic).

Purpose.

The Special Academic Track is for those students who have been variously described as “slow learners,” “retarded,” “academically retarded,” “retarded slow learners,” or “stupid.” (Tr. 233, 400-401; Ex. B-ll, pp. 37, 46, 48, 131-132.) Its purposes are to provide a useful education for students whose limited abilities prevent them from successfully participating in the normal curriculum; and to give remedial instruction in the basic subjects — especially reading and arithmetic — to those students who can eventually qualify for upgrading to the General curriculum. (Ex. B-ll, pp. 48,67; Ex. 9, C-16.)

Criteria.

In general, the criteria for Special Academic Track placement are inability to keep up with the normal curriculum, emotionally disturbed behavior, an IQ of 75 or below, and substandard performance on achievement tests. (Tr. 233, 257, 323.)

In junior high “in order to be transferred from Basic to General Track,

in general

the student must be functioning at no more than 2 years below grade level in reading and arithmetic. * * * In cases where the pupil does not meet this standard BUT there is evidence of diligence, recent growth, and good study habits in the fundamental skills, the student may be given trial placement in the General Track.” (Ex. 9, C-16.) (Emphasis in original.)

In senior high school Special Academic placement is recommended when

“(a) a student is functioning three or more years below grade level as shown by achievement tests (at sixth grade or below in reading and mathematics in the ninth grade); (b) his preceding academic record shows him to be unable to cope at a minimum level with traditional content in language and mathematics; (c) his teachers believe him to be in need of placement in the basic track; (d) his mental retardation is indicated by an I.Q. index of 75 or below.” (Ex. B-ll, pp. 52-53.)

Dr. Hansen has said that “academic retardation in this curriculum is severe, particularly in reading.”

(Id.

at 67.)

School policy used to be that students identified as belonging in the Special Academic Track were mandatorily required to enroll in that curriculum. “Admission to the upper three curricula should be selective. Thé student who is ineligible because of low achievement should not be admitted to the traditional high school program.” (Ex. B-ll, p. 48.) This policy, followed in elementary and junior high schools as well as in the high schools, was amended in the fall of 1965 to require parental consent for Special Academic placement. Most parents, however, acquiesce in the school’s recommendation. (Tr. 321-323.)

Structure.

Elementary school children may be placed in the Special Academic Track as early as the first grade, although most wind up there after an attempt at the normal first and perhaps second grade curriculum. Some schools

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place all Special Academic children in one class, so that youngsters ranging from first to sixth grade age levels may be taught in the same classroom; actually, the age spread may be even greater since Special Academic students who do not progress academically to a point where they can be promoted into the junior high school level remain in elementary school until they pass their thirteenth birthday. Other schools divide the track into two groups, the primary Special Academic (grade levels one through three) and the intermediate Special Academic (grade levels four through six), thus reducing the age spread. (Tr. 1049-1051,6209-6217; Ex. 9, C-16.)

At least at the elementary school level, Special Academic classes are ungraded. A child’s grade level equivalent is ascertained from his scores on standardized or informal achievement tests. Whereas the child in the General curriculum can usually be expected to progress at the rate of one grade level per year, the Special Academic student typically will progress at a much slower rate. For those who continue to learn at this slower rate, the Special Academic Track will be a permanent assignment until such time as the child passes his thirteenth birthday and is moved on into- the junior high school Special Academic Track. (Tr. 6209-6214; Ex. A-33, p. 34, No. 9.) It is not clear whether classes are ungraded in the secondary schools.

A major distinction of the Special Academic Track is that classes are to be kept relatively small, the usual pupil-teacher ratio being about 18 or 20 to one. (Tr. 4039, 6105.) This is to enable more individualized attention than is possible in a larger class.

Dr. Hansen has indicated that teachers in the Special Academic Track need to be specially prepared to deal with the special problems that characterize slow learners. (Ex. B-ll, pp. 141-148.)

58

-The great majority of those teaching in the Special Academic Track, however, either have had no formal training in special education or have had very little. (Tr. 912-913; Ex. A-ll, Ex. A-12.) About half of the teachers are nontenure, or temporary. (Tr. 539F.)

Curriculum.

The Special Academic curriculum at the elementary and junior high school level can be characterized as a highly simplified, slower-paced version of the standard curriculum. The concepts taught are simpler; the vocabulary is easier, the words being less complex and fewer in number; instructional materials may be simplified versions of materials used in the normal classroom,

59

the effort being made to keep pace with the child’s age-level interests while at the same time reducing subject content to his grade-level ability. There is an emphasis on “basic” subjects — reading, English, and arithmetic. (Tr. 6105-6115; Ex. 105-116; Ex. 9, C-16.)

At the senior high school level, in addition to carrying forward the simplified course content, the curriculum focuses on preparing the student for a variety of low-skill vocations. (Ex. B-ll, ch. 8; Ex. 9, C-16.) Graduation requirements in the Special Academic Track are 16 Carnegie units, 9% in these required subjects: English (4 units), mathematics (arithmetic'; 2 units), science (basic science; 1 unit), social studies (social studies, U.' S. history, and U. S. government; 2% units), business education (basic business; 1 unit). The elective courses are in such areas as home economics, shop (all at the low-skills level), or business-related functions (typing, filing, office machine operation, etc.). (Ex. B-ll, pp. 67-68; Ex. G-l, pp. 43-50.)

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5.

Junior Primary.

The Junior Primary is an ability-grouped class intermediate between kindergarten and first grade. Its purpose is to bring children up to a level of readiness for normal first grade instruction, the usual problem being inadequate preparation in reading-readiness skills. Some students in Junior Primary have not had kindergarten training (many Negro children do not attend kindergarten because of lack of space;

60

other children simply are not enrolled by parents); others are slow learners who have not' fully developed in kindergarten.

A decision as to whether a child requires Junior Primary placement is based on his score on a standard aptitude test and the teacher’s judgment. For those students who have not had kindergarten, however, the test score would have to be the controlling factor since the child would not have had any prior contact with the school and thus would not be known to a teacher.

Of those who go into Junior Primary, some advance directly into the second grade, but most go into regular first grade after spending a year or less in the special class. And for some children Junior Primary is simply preliminary to placement in the Special Academic Track. (Tr. 229-231; 4030, 4069-4070; 6095-6097, 6183-6186; Ex. 9, C-16.)

TABLE A

ELEMENTARY SCHOOLS

Basic Track General Track Regular Track Honors Track

School Year No. % No. No. % No. Total

1962- 1963 2,839 3.3 69,908 95.0 1,269 1.7 74,016

1963- 1964 2,876 3.8 Unknown

*

Unknown 75,807

1964- 1965 2,984 3.9 72,971 94.6 1,196 1.5 77,151

1965- 1966 2,495 3.1 75,762 95.1 1,382 1.8 79,639

1966- 1967 1,919 2.4 Unknown Unknown 81,513

JUNIOR HIGH SCHOOLS

1959- 1960 2,569 11.9 18,068 83.3 1,045 4.8 21,682

1960- 1961 3,124 13.0 19,455 81.1 1,419 5.9 23,998

1961- 1962 3,457 13.1 21,356 80.9 1,570 6.0 26,383

1962- 1963 4,218 15.0 22,215 78.9 1,722 6.1 28,155

1963- 1964 4,499 15.5 22,758 78.3 1,793 6.2 29,050

1964- 1965 4,209 14.4 23,253 79.5 1,799 6.1 29,261

1965- 1966 2,767 9.5 24,181 84.9 1,585 5.6 28,533

1966- 1967 2,193 6.9 Unknown Unknown 29,182

SENIOR HIGH SCHOOLS

1958- 1959 3,026 22.6 5,575 41.7 3,884 29.0 892 6.7 13,377

1959- 1960 2,904 22.0 5,594 42.4 3,795 28.8 900 6.8 13,193

1960- 1961 2,321 18.3 5,572 44.1 3,780 29.9 969 7.7 12,642

1961- 1962 2,074 16.1 5,692 44.2 4,002 31.1 1,106 8.6 12,874

1962- 1963 1,799 12.6 6,455 45.3 4,856 34.0 1,155 8.1 14,265

1963- 1964 1,760 10.8 7,812 48.0 5,628 34.6 1,075 6.6 16,275

1964- 1965 1,629 9.0 8,941 49.6 6,426 35.6 1,035 5.8 18,031

1965- 1966 1,451 7.9 9,355 50.5 6,710 36.2 1,007 5.4 18,523

1966- 1967 Unknown Unknown Unknown Unknown 18,858

(Tr. 1030; Ex. 146; Ex. B-4; Ex. B-16; Ex. C-15; Ex. P-5; Ex. P-6.)

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D.

Track Distribution.

Table A,

swpra,

summarizes the available data regarding the distribution, past and present, of District students among the various tracks in the elementary and secondary schools. This Table will be cited with regard to particular findings where relevant.

Plaintiffs have relied strongly on the empirical evidence regarding the distribution of students to prove how the effect of the track system is to discriminate against the lower class and the Negro students, who constitute a májority of the student population in the District public schools. Defendants have acknowledged that enrollment in the tracks is related to the socio-economic status of a student, but they deny that any racial bias is operating. The court will review the evidence on both counts.

1.

Socio-economic and racial patterns.

The following Tables summarize the available data giving the distribution of students among the various tracks at the secondary school level, the data being for the school years 1964-65 and 1965-66.

61

TABLE B

Senior High School

Nbhd median income School_(oo) % Negro % S.Ac. enrollment (Basic) % Reg. % % Gen'l (Coll.Prep.) Honors

Dunbar $3.9 99.8% 16.7% 68.1% 15.6% None

*

1964

99.6 9.8 72.5 17.7 None

*

1965

Cardozo 4.4 99.5 18.2 56.4 22.4 3.0%. 1964

99.6 12.0 64.5 20.2 3.3 1965

Eastern 4.9 99.0 12.0 55.5 28.6 3.9 1964

99.5 10.4 54.4 33.4 l.S 1965

Splngarn 4.9 100.0 12.0 73.5 13.6 0.9 1964

100.0 13.4 74.5 11.4 0.7 1965

McKinley 5.2 99.0 4.9 39.9 49.2 6.0-1964

99.5 4.3 39.6 48.3 7.8-1965

Ballou 5.2 64.0 7.4 53.7 34.3 4.6 1964

76.0 9.9 52.7 33.9 3.5-1965

Anacostia 6.0

**

61.0 6.5 54.5 34.8 4.2-1964

74.0 7.9 55.1 33.2 3.8-1965

Roosevelt 6.0 98.5 5.5 57.2 32.9 4.4 1964

99.4 4.7 57.7 34.4 3.2' 1965

Coolldge 7.6 82.0 5.1 31.6 52.5 10.8-1964

90.0 3.8 33.5 52.5 10.2' 1965

Western 8.6 42.7 6.6 34.6 46.1 12.7 1964

52.5 7.4 32.7 47.7 12.2' 1965

Wilson 10.4 2.3 None

***

7.8 75.1 17.1 1964

6.3 None

***

8.1 80.0 11.» 1965

*452

TABLE C

Junior High Schools

School_ Nbhd median % Negro Income enroll-(00)_ment

*

_ % S.Ac. (Basic) % Gen'l % Honors

Ten-ell $3.5 99.5% 1964 17.4% 82.6% None

1965 13.7 86.3 None

Shaw 3.5 99.5 1964 36.0 64.0 None

1965 28.1 71.9 None

Stuart 4.5 94.5 1964 25.3 74.7 None

1965 22.0 78.0 None

Randall 4.5 97.5 1964 22.7 77.3 None

1965 18.3 81.7 None

Miller 4.5 100.0 1964 12.3 80.3 7.4

1965 7.0 85.7 7.3

Garnet-Patterson 4.5 99.9 1964 21.8 78.2 None

1965 15.3 84.7 None

Francis 4.5 95.0 1964 21.1 78.9 None

1965 15.1 84.9 None

Evans 4.5 100.0 1964 18.6 81.4 None

1965 16.3 83.7 None

Eliot 4.5 99.1 1964 13.3 82.1 4.6

1965 5.8 89.1 5.1

Browne 4.5 99.9 1964 25.1 72.9 2.0

1965 7.8 92.2 None

Banneker 4.5 99.5 1964 13.6 83.0 2.0

1965 15.5 80.8 3.7

Sousa 5.5 97.0 1964 16.3 79.3 4.4

1965 3.4 95.5 1.1

Langley 5.5 99.2 1964 10.2 89.8 None

1965 6.9 93.1 None

Kramer 5.5 54.5 1964 9.9 84.0 6.1

69.1 1965 7.4 86.8 5.8

Hlne 5.5 95.4 1964 14.1 85.9 None

1965 4.1 95.9 None

Douglass 5.5 99.0 1964 23.3 76.7 None

1965 8.6 91.4 None

Woodson 6.5 99.9 1964 12.1 86.5 1.4

1965 13.0 87.0 None

MacFarland 6.5 99.2 1964 6.9 88.3 4.8

1965 6.3 88.6 5.1

Hart 6.5 55.7 1964 6.6 84.7 8.7

74.0 1965 4.1 90.0 5.9

Paul 7.5 83.0 1964 5.5 78.1 16.4

88.1 1965 3.3 83.5 13.2

Taft 8.5 98.0 1964 8.5 83.9 7.6

1965 10.0 83.4 6.6

Backus 8.5 96.0 1964 5.9 86.9 7.2

1965 4.8 88.7 6.5

Gordon 9.5 41.5 1964 4.3 80.7 15.0

48.0 1965 3.4 84.3 12.3

Deal 10.5 1.0 1964 2.5 56.5 41.0

1.3 1965 None 56.0 44.0

Jefferson (unknown) 80.0 1964 8.5 61.8 29.7

81.0 1965 4.2 65.7 30.1

*453

a.

Socio-economic correlation.

Defendants have admitted that, as a general rule, the per cent of students in a given track will correspond to the income level of the neighborhood .served by that school. The higher the median income level, the greater the per cent of students who will be found in the higher tracks.

62

This general proposition has its exceptions. However, the exceptions fall within the middle-range schools where small variations can produce pronounced differences in relative position.

Senior high schools.

(1) Dunbar High School, the school serving the lowest income neighborhood ($3,000-$3,999 median), has not had an Honors Track since at least 1961. And, although it has had a Regular (college preparatory) Track during that period, the evidence shows Dunbar to have had the second lowest number of students in that curriculum in 1964 and 1965 (15.2% and 17.7% respectively). The only school with fewer students in college preparatory curricula (Regular and Honors) was Spingarn High, an all-Negro (100%), low-income ($4,000-$4,999) school having 14.5% in the Regular or Honors Tracks (13.6% arid 0.9% respectively) in 1964 and 12.1% (11.4% and 0.7%) in 1965.

(2) Wilson, the only high school serving the highest median income level ($10,000-$10,999), and having the fewest Negro students (2.3% in 1964; 6.3% in 1965), has not had a Special Academic Track since at least 1961. For both years over 90% of the students at Wilson were in the advanced curricula, the bulk of them in the Regular Track (75.1% in 1964; 80.0% in 1965), and a high percentage in Honors (17.1% and 11.9% respectively).

(3) Grouping the high schools into three economic levels — high ($7,000-$10,999), middle ($5,000-$6,999) and low ($3,000-$4,999) — the correlation between track placement and income is exact.

TABLE D

Income Level Number of Schools Per Cent Students In Special Academic and General Tracks 1964_1965

High 3 7.8 - 34.6% 8.1 - 40.1%

Middle 4 44.8 - 62.7 43.9 - 63.0

Low 4 67.5 - 85.5 64.8 - 87.9

Junior high schools.

The economic correlations found in the senior high schools are also found, generally, in the junior high schools.

(1) There were 25 junior high schools in 1964 and 1965. Of the 25, all offered a Special Academic Track in 1964; in 1965 one did not: Deal Junior High, serving the highest income level ($10,-000-$10,999). In 1964, 15 (60%) offered an Honors Track; in 1965 this dropped to 12, or less than 50%. Of those

without

an Honors Track in 1964, seven (70%) were in the low income group (11 schools) and three (30%) were in the middle income group (eight schools

63

); all five of the high-income-group schools had Honors Tracks. For 1965, nine of the 13 non-Honors Track

*454

schools were low income schools (69%); the other four (31%) were in the middle income range.

(2) The per cent of students in either the Special Academic or Honors Tracks does not show an exact

correlation

with income level. But, as a general matter, the enrollment range in the Honors Track does reflect a definite

upward

trend the higher the income level; conversely, Special Academic enrollment

decreases

as

income

level goes higher.

TABLE E

Income Level % in Special Academic 1964 1965 % in Honors 1964 1965

High 2.5 - 8.5% 0.0 - 10.0% 41.0 - 7.2% 44.0 - 6.5%

Middle 6.6 - 23.3 4.1 - 13.0 8.7 - 0.0 5.9 - 0.0

Low 12.3 - 36.0 5.8 - 28.1 7.4 - 0.0 7.3 - 0.0

(Jefferson: 8.5 4.2 29.7 30.1 )

Elementary schools.

The correlation continues at the elementary school level as indicated by Table F.

TABLE F

64

Per Cent Elementary Schools with Honors Tracks (1965)

Median Income Range ■ No. Schools No. with Honors Tracks Per Cent

Under $3,000 - $4,999 60 3 5.0

$5,000 - $6,999 40 6 15.0

$7,000 - $10,999 22 14 63.6

$11,000 and over ' _8 6 75.0

Total 130 29 22.2

(Ex. F-2; Ex. B-4;

see

Defendants' Proposed Findings, p. F-19.)

******

From all of the above data it is clear that a student’s chance of being enrolled in one of the more advanced tracks is directly related to his socio-economic background. The reason for this correlation will be examined in some detail in Section F,

infra.

Suffice it to say here that the relationship is foünded on the fact that academic achievement is strongly influenced by the kind of environment á child is born into and in which he'spends his childhood and early youth — his home, his community and his school. Income level happens to be a shorthand way of identifying those backgrounds that are more or less conducive to becoming a successful student.

b.

Racial correlation.

Defendants have gone to some pains to establish that everything about a student’s education under the track system can be explained by nonracial considerations. However, as even a hurried glance at the data just reviewed makes plain, for a majority of District schools and school children race and economics are intertwined : when one talks of poverty or low income levels one inevitably talks mostly about the Negro. This is evidenced by the most recent census data for the District of Columbia (1960) which shows the median annual income level to be $5,993 for all families; but for white families, the median is $7,692 whereas for Negro families it is $4,800. At

*455

least 50% of the Negro population can therefore be placed within a poverty range. (Ex. 124.)

Further evidence of the relationship between income and race can be seen in the following data.

Senior high schools.

(1) Of the 11 senior high schools, eight (72.6%) serve neighborhoods with income levels of $6,000 or below, the average being $4,000. The per cent Negro enrollment in those schools, using the 1965 figures, ranged from a low of 74.0% to a high of 100.0% ; the average was 93.5%.

(2) The two schools with a significant number of white students enrolled are Wilson (93.7%) and Western (47.5%). The median income level of Wilson is $10,374; of Western, $8,649.

(3) The court has already compared the enrollment patterns of Wilson with Dunbar and Spingarn, both low income Negro schools. It is also instructive to note that Wilson, the only predominantly white school, had all but 8% of its students in the Regular and Honors Tracks in 1964 and 1965; no other school was even close to that. The school that was closest was Coolidge High School, a predominantly (90.0%) Negro school serving a neighborhood with the third highest income level in the system ($7,650); but despite its relative affluence Coolidge nonetheless had almost 40% of its students in the lower, non-college preparatory tracks.

(See generally

Table B.)

Junior high schools.

(1) Of the 24 junior high schools whose income level is known, 16 were at or below the $6,000 mark, the average being about $4,700. In 1965 the per cent Negro enrollment in those schools ranged from 63.5% to 100.0% ; the average was 96.5%.

(2) In 1964 there were six schools

65

having from 99.0% to 17.0% white enrollment ; all six had Honors Tracks (whereas 40% of the schools did not). At least two of those schools were in the middle income range (one at $5,000-$5,999 and one at $6,000-$6,999; in addition, Jefferson was among the six schools and presumably fell within the middle range). There were six other middle income schools,

66

all having virtually all-Negro student bodies (the range going from 95.4% Negro to 99.9%); only three of them had Honors Tracks. And in 1965, this number dropped to two.

Elementary schools.

Table G shows the distribution of track offerings in the elementary schools in 1965 according to the racial characteristic of the schools. As the Table makes clear, income and race tend to coincide.

TABLE G

Per Cent Negro Enrollment Average Income Level (00) Number of Schools Having S/Ac. Track No._% Having Honors Track No. %

85-100% $ 5.0 108 88 81.5% 13 12.0%

67-85 5.5 4 3 75.0 2 50.0

33-67 8.1 7 3 72.0 3 42.0

15-33 7.1 3 2 67.0 2 67.0

0-15 11.4 11 None 0.0 9 82.0

(Ex. B-4; Ex. F-2; Ex. P-4.)

The pattern of Honors Track offerings found to exist in the junior high schools repeats in the elementary schools: the great majority of predominantly Negro schools do not provide Honors Tracks for their students. Indeed, only 16% of all Negro elementary school students were attending schools with Honors programs

*456

in 1965;,on the other hand, 70% of all white students had the advanced curriculum at their schools. (Ex. V-10.)

c.

Racial distribution within track levels.

Perhaps the most striking illustration of why it is impossible to accept defendants’ argument that a student’s race is irrelevant to the, kind of education he obtains is to be found when one examines the evidence concerning the racial breakdown of the enrollment in the Special Academic or Basic Track, the only track for which defendants maintain records according <to race. As a general rule, in those schools with a significant number of both white and Negro students a higher proportion of the Negroes will go into the Special Academic Track than will the white students. This pattern is shown by the next two tables.

TABLE H

67

School Year Total School Enrollment % Negro % White Ratio of Negroes to Whites in Special Academic Track % Negro % White

Elementary 1964 89.5 10.5 95.0 5.0

1965 91.0 9.0 95.0 5.0

Junior high 1964 87.6 12.4 94.7 5.3

1965 89.5 10.5 96.4 3.6

68

(Ex. B-4; Ex. C — 15; Ex. P-4; Ex. P-5.)

Thus, at both the elementary and junior high school levels the per cent of Negroes enrolled in the lowest track exceeds their proportionate representation in the total, student' body; conversely, the white enrollment in the Special Academic Track is significantly lower than the proportion of whites in the total school enrollment. This is shown, with greater particularity in Table I, below.

TABLE I

Racial Breakdown In the Special Academic Tracks In Junior High Schools Having Between 17% and 80% Whites School Years 1962-1965

Spec.Ac. Track Pupils in Track as % of Tot. White or Negro Enrollment

Col. 1 Col. 2 Col. 3 Col. 4 Col. 5

School_Year ‘ (, Whites (W) (N) % W : N (W) (N)

'Gordon 1962-63 74.0% 31 16 66.0% 4.2% 6.4%

1963- 64 68.6 25 26 49.0 3.9 9.5

1964- 65 58.5 14 31 31.0 2.4 7.8

Hart 1962-63 80.0 28 25 53.0 3.1 12.1

1963- 64 ’ 66.4 25 49 34.0 3.3 14.0

1964- 65 44.3 18 75 19.4 2.9 10.5

Jefferson 1962-63 26.0 9 66 12.0 6.1 17.8

1963- 64 20.8 10 44 18.5 8.4 10.0

1964- 65 20.0 8 47 14.5 6.6 10.0

Kramer 1962-63 65.5 39 30 56.5 5.4 8.1

1963- 64 55.5 48 41 54.0 7.8 8.4

1964- 65 45.5 44 71 39.0 9.1 12.6

Paul 1962-63 24.4 12 85 12.4 3.4 8.2

1963- 64 22.5 5 57 8.1 1.9 6.6

1964- 65 17.0 7 59 10.6 3.5 6.3

(Ex. P-5; Ex. P-6; Ex. P-7.)

*457

In these five junior high schools, the only ones with a significant biraciál enrollment, the per cent of white' students in the Special Academic Track Was consistently lower than the. per cent of whites .in the total school population

Ccompare

Col. 1

with

CoL 4); in all cases a higher proportion of the Negro students in these schools were in the lowest track than were the white students

(compare

Col. 5

with

Col. 6).

Clearly, then, race cannot be considered irrelevant in the operation of the track system. Even if the effects of tracking are not racially motivated, the Negro student nonetheless is affected.

2.

Effects of the distribution pattern.

The data just reviewed reveal the two important effects of the track system. First, tracking tends to separate students from one another according to socioeconomic and racial status, albeit in the name of ability grouping. Second, the students attending the lower income predominantly Negro schools — a majority of District school children — typically are confined to the educational limits of the Special Academic or General Track.

a.

Class separation.

The track system is by definition a separative device, ostensibly according to students’ ability levels. However, the practical effect of such a system , is also to group students largely according to their socio-economic status and, to a lesser but observable degree, to their racial status. Two examples will suffice to prove the point.

(1)

Western High School.

Western is a high school serving the neighborhood with the second highest income level ($8,-649). However, the 1965 enrollments in the Special Academic and Regular Tracks did not conform to the general rule linking income with track placement — three schools (Coolidge, Roosevelt, McKinley) of lower income levels than Western having fewer students in the Special Academic Track, and two of those (Coolidge, McKinley) having more in the Regular Track.

Defendants suggest as a reason for this deviation an influx of transfer students, implicit in which is the further suggestion that these were lower income students who would tend to gravitate to the lower tracks. (Defendants’ Proposed Findings, p. F-17.) Evidence shows that in 1965, 405 out-of-boundary students were enrolled in Western, representing 31% of the student body. A breakdown of Western’s enrollment by median income level as of May 1966 showed the following: 29.7 % of the students were from income levels below $5,000; 34.2% were from the $5,000-$6,-999 level; 10.7% were from the $7,000-$8,999 level; and 25!4% were from levels. $9,000 and above. (Ex. N-9; Ex. N-10.)

Accepting defendants’ explanation as correct serves to strengthen the economic-correlation finding. But more significantly, it proves the segregatory effect of tracking. Thus the indigenous upper class, predominantly white, Western student body is cushioned from the full impact, of a substantial influx of lower class outsiders. And ¡given the' predominance of the Negro in that class, there is a high probability that the cushioning-effect is racially as well as ■ economically related.

(2) Confirmation' of the cushioning effect from a racial standpoint is found in the data presented in Tables H and I,

supra,

where it was shown that Negro students in the “integrated” schools go-into the Special Academic Track in greater proportion than their white classmates. Although wh

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