# Hobson Ex Rel. Hobson v. Hansen

> District Court, District of Columbia · June 19, 1967 · 269 F. Supp. 401

URL: https://www.frixlaw.com/law-library/cases/1800940

## Case

- **Full name:** Julius W. HOBSON, Individually and on Behalf of Jean Marie Hobson and Julius W. Hobson, Jr., Et Al., Plaintiffs, v. Carl F. HANSEN, Superintendent of Schools of the District of Columbia, the Board of Education of the District of Columbia Et Al., Defendants
- **Court:** District Court, District of Columbia
- **Decided:** June 19, 1967
- **Citations:** 269 F. Supp. 401; 1967 U.S. Dist. LEXIS 10662
- **Precedential status:** Published
- **Opinion:** Opinion by Wright
- **Judges:** J. Skelly Wright
- **Cited by:** 149 later opinions in the Frix Law Library

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## Opinion text

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
*406
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.
1
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
2
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.
3
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.
4
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
5
— 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.
6
It is now true that east of the Park the city is very heavily Negro.
7
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.
8
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.
9
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.
10
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.
11
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.
13
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,
14
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,
15
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,
16
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.
17
(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.
18
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.
19
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
*416
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
20
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.)
21
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
22
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.
23
The court also discredits two administration spokesmen’s claim that Western
*417
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.)
*422
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
*423
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
anc
on March 29, 1967, 380 F.2d 385 , which adopted Judge Wisdom’s opinion, though prefixing it with six paragraphs of text.
158
. This is one of the holdings, or readings, of Dowell v. School Board,
supra
Note 156.
159
.
Compare
the NLRB’s remedy of permanently “disestablishing” company-dominated unions, which it anounced in Carpenter Steel Co., 76 N.L.R.B. 670 (1948).
See
Freund,
Civil Rights and the Limits of Law,
14 Buffalo L.Rev. 199, 205 (1964).
160
. The only figures in the record are the meagre ones reported in Findings I-D.
161
. 42 U.S.C. §§ 2781-2791 (1964), as amended.
162
. 20 U.S.C. §§ 241a — 241Z (Supp. I 1985).
163
. 20 U.S.C. §§ 236-244 (1964), as amended, 20 U.S.C. § 244 (8) (Supp. I 1965).
164
. See T. Emerson, D. Haber & N. Dorsen, Political and Civil Rights in the United States 1779 (3d ed. 1967).
Bee also
Rousselot,
Achieving Equal Educational Opportunity for Negroes in the Public Schools of the North and West: The Emerging Role for Private Constitutional Litigation,
35 Geo. Wash.U.Rev. 698, 712-718 (1967) ; Horowitz,
TJnseparate but Unequal
— The
Emerging Fourteenth Amendment Issue in Public School Education,
13 U.C.L.A. L.Rev. 1147 (1966).
165
. The crime which
Plessy
committed was that in applying its standard it concluded that
de jure segregated facilities
were or could be equal. The Court, ruling in
Brown
that deliberately segregated schools were
inherently
unequal, implicitly accepted the separate but equal frame of reference, exploding it from the inside so far as its application to
de jure
schools was concerned.
166
.
See
Kaplan,
Segregation Litigation and the Schools
— Part
II: The General Northern Problem,
58 Nw.U.L.Rev. 157, 158-159 n. 3 (1963).
167
. See Baker v. Carr, 369 U.S. 186, 226 , 82 S.Ct. 691, 715 , 7 L.Ed.2d 663 (1962): discrimination-in-fact is bad when it “reflects
no
policy, but simply arbitrary and capricious action.” (Justice Brennan’s emphasis.) The record here indicates, moreover, that not all the inequalities have been thoughtless.
The government classification in this case results from the neighborhood policy which assigns students according to residential zones, and also from the numerous but deliberate government allocative decisions the sum of which represents the inequalities the court has found.
168
. See Leflar & Davis,
Segregation in the Public Schools
— 1953, 67 Harv.L.Rev. 377, 398 (1954). It is instructive that another court has provided a remedy when the only disparity found was in the number of uncertified teachers. Matter of Skipwith, 14 Misc.2d 325 , 180 N.Y.S.2d 852 (Dom.Rel.Ct.1958).
169
. This reluctance is evident in other school system practices and incidents: a. Two years ago the boundary line between Rabaut and Paul Junior Highs was redefined in order to avoid splitting up a small minority of white students between those two predominantly Negro schools, b. There was an “optional feature” in the Board’s desegregation plan, allowing students to remain in the schools they were attending when
Bolling
was handed down even if outside their own neighborhoods as defined by the 1954 reorganization. It apparently expired of its own terms no later than 1960.
See
Mapp v. Board of Educ., 6 Cir., 373 F.2d 75 , 77 (1967); Dowell v. School Board, W.D.Okla., 244 E.Supp. 971, 974-975 (1965),
affirmed,
Board of Ed. of Oklahoma City, etc. v. Dowell, 10 Cir., 375 F.2d 158 (1967),
cert. denied,
387 U.S. 931 , 87 S.Ct. 2054 , 18 L.Ed.2d 993 (May 29, 1967). c. Another practice permitted white students who alleged they would be psychologically unnerved by integration to flee from the predominantly Negro schools in their neighborhoods into public schools with greater white enrollment elsewhere in the city, a practice obviously giving encouragement to misrepresentations and to nascent prejudice in the young. There is no evidence as to whether this practice or any variant thereof is still in existence.
See
Goss v. Board of Educ., 373 U.S. 683 , 83 S.Ct. 1405 , 10 L.Ed.2d 632 (1963).
170
. Davis v. Board of School Comm’rs, 5 Cir., 364 F.2d 896, 901 (1966).
171
.
See
1 U. S. Civil Rights Comm’n, Racial Isolation in the Public Schools 52-54 (1967); NAIRO, Public School Segregation and Integration in the North 25-26 (1963).
172
. United States v. Jefferson County Bd. of Educ., 5 Cir., 372 F.2d 836 (1966),
reaffirmed en banc,
380 F.2d 385 (March 29, 1987) ; Kemp v. Beasley, 8 Cir., 352 F.2d 14 (1965); Bradley v. School Board, 4 Cir., 345 F.2d 310 ,
vacated on other grounds,
382 U.S. 103 , 86 S.Ct. 224 , 15 L.Ed.2d 187 (1965).
173
. Western, one of the options in each of the high school zones, is an integrated school (the only such high school in the city) the white enrollment at which has slumped all the way from 73% to 41% since 1962. Defendants do
not
say that the design of these zones is to infuse white students into a school in danger of losing its integrated character. Any argument that this purpose underlies the zones would shipwreck on the fact that two years ago, the very time when the danger at Western was first materializing, the Roosevelt-Western zone was amended to include an option to attend
Wilson
High School, which is predominantly white.
174
.
See
the cases establishing the crucial First Amendment doctrine that the dangerous or violent reactions of listeners is no reason for curbing the speaker’s right to free expression.
E. g.,
Cox v. State of Louisiana, 379 U.S. 536 , 85 S.Ct. 453 , 13 L.Ed.2d 471 (1965). There is a difference, of course: while the police may restrain or arrest the unruly onlookers, they cannot halt the emigration by white families from the city, or bar them from enrolling their children in private schools. Pierce v. Society of the Sisters, 268 U.S. 510 , 45 S.Ct. 571 , 69 L.Ed. 1070 (1925). But while the end of
de jure
segregation in the South has led to massive withdrawals of white students in some school districts, this has never been thought to provide a legal defense against desegregation, nor has white withdrawal ever been advanced as a justification for neighborhood gerrymandering, which optional zoning closely resembles.
175
. Carolyn Stewart, the only teacher plaintiff, advised the court the day trial began that, while she would remain nominally a party, she disclaimed all “financial, legal, or moral responsibility” for counsel, his conduct and his arguments.
176
.
See
Louisiana v. United States, 380 U.S. 145, 154-155 , 85 S.Ct. 817 , 13 L.Ed. 2d 709 (1965) (voting registration qualifications “frozen” as remedy for past registration discrimination); Ross v. Dyer, 5 Cir., 312 F.2d 191, 194 (1962); Miller v. School Dist., D.S.C., 256 F.Supp. 370, 378 (1966) (calling for elimination of “all vestiges” of teacher segregation).
177
.
See
United States v. Logue, 5 Cir., 344 F.2d 290 (1965), where a voting registration qualification that the applicant be “sponsored” by a registered voter was held unconstitutional as applied to Negroes, since past voting discrimination was the cause of the absence of registered voters who were Negro and therefore willing to serve as sponsors for other Negroes.
See also
Meredith v. Fair, 5 Cir., 298 F.2d 696 (1962)
(semble). And see
Guinn v. United States, 238 U.S. 347 , 35 S.Ct. 926 , 59 L.Ed. 1340 (1915) (invalidating Oklahoma’s “grandfather” clause).
178
.
Compare
Monroe v. Pape, 365 U.S. 167 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961); United States v. Classic, 313 U.S. 299 (1941); Matter of Skipwith, 14 Misc.2d 325, 344 , 180 N.Y.S.2d 852, 871 (Dom.Rel. Ct.1958). For a teacher to flunk one of his students because the student was a Negro, for example, plainly would be government action proscribed by the Constitution.
179
. Kelley v. Altheimer, Ark. Pub. School Dist., 8 Cir., 378 F.2d 483 , 491 (April 12, 1967) ; Brown v. County School Board, W.D.Va., 245 F.Supp. 549 (1965).
180
. Kelley v. Altheimer,
supra
Note 179, 378 F.2d at 491; United States v. Jefferson County Bd. of Educ., 5 Cir., 372 F.2d 836 , 883-886 (1966),
reaffirmed en banc,
380 F.2d 385 (March 29, 1967).
181
.
E. g.,
Kier v. County School Board, W.D.Va., 249 F.Supp. 239, 247, 249 (1966); Wright v. County School Board, E.D.Va., 252 F.Supp. 378, 383-384 (1966).
182
.
See
Downs v. Board of Educ., 10 Cir., 336 F.2d 988 , 997 (1964),
cert. denied,
380 U.S. 914 , 85 S.Ct. 898 , 13 L.Ed.2d 800 (1965).
183
.
See
the cases cited in Notes 176 and 177,
supra.
184
.
See
Findings of Fact I-B-2; Deal v. Cincinnati Board of Educ., 6 Cir., 369 F.2d 55, 60 (1966); Springfield School Comm. v. Barksdale, 1 Cir., 348 F.2d 261, 264 (1965).
185
. This finding reads: “Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of law. * * * ” 347 U.S. 483, at 494 , 74 S.Ct. 686, at 691 , 98 L.Ed. 873 .
186
. 1 U. S. Comm’n on Civil Rights, Racial Isolation in the Public Schools ch. 3 (1967). The Commission’s statistical methods have been criticized. Bowles & Levin,
Equality of Educational Opportunity: A Critical Appraisal
(1967) (unpublished).
187
. Barksdale v. Springfield, D.Mass., 237 F.Supp. 543, 546 ,
rev’d on other grounds,
1 Cir., 348 F.2d 261 (1965); Blocker v. Board of Education, E.D.N.Y., 226 F.Supp. 208, 227-229 (1964).
188
.
E.
g., Mass.Gen.Laws ch. 71, § 37C-37D; ch. 15, §§ 1I-1K (1965);
Memorandum of New York State Commissioner of Education,
8 Race Rel.L.Rep. 738 (1963) ;
see Resolution of Baltimore City Board of School Commissioners, id.
at 1226-1227. The
Report of the Advisory Committee on Racial Imbalance and Education to the Massachusetts Board of Education
has been published as Because It Is Right — Educationally (1965).
189
. Pettigrew & Pajonas,
Social Psychological Considerations of Racially-Balanced Schools;
Seaholes,
Impact of Racial Imbalance and Balance,
both appendices to Because It Is Right — Educationally,
supra
Note 188; Fischer,
Race and Reconciliation: The Role of the School,
in The Negro American 491 (K. Clark & T. Parsons ed. 1966).
See also
the reports of the testimony of Professor Pettigrew in Barksdale v. Springfield School Comm., D.Mass., 237 F.Supp. 543, 546 ,
rev’d on other grounds,
1 Cir., 348 F.2d 261 (1965) (“[Rjacially imbalanced schools are not conducive to learning”), of Dr. Kenneth B. Clark in Matter of Skipwith, 14 Misc.2d 325, 337-338 , 180 N.Y.S.2d 852, 855-866 (Northern segregated conditions “depress the ability of children to learn”), and of professors of education and sociology in Deal v. Cincinnati Board of Education, S.D.Ohio, 244 F.Supp. 572, 580-581 (1965),
aff’d,
6 Cir., 369 F.2d 55 (1966) (“[A] racially unbalanced school seriously affects a child’s ability to learn”).
189a
. The record in this case affirmatively shows that predominantly Negro schools are held in very low repute by white teachers and parents. See Findings 1-6-2.
190
. Fiss,
Racial Imbalance in the
Schools:
The Constitutional Concepts,
77 Habv.L. Rev. 564, 570 (1965).
191
.
See
B. Bailyn, Education in the Fobming oe Amebican Society 9, 15 (1960) ; S. Kimball & J. McClellan, Education and the New Amebica 39-40 (1962), for the primacy of the school as the institution which mediates between a child’s family and neighborhood and the adult outside world.
192
. See H. Mann, The Republic and the School 8, 32-33 (L. Cremin ed. 1957) ; L. Cbemin, The Amebican Common School: An Histobic Conception 55-62 (1951).
To align Mann, therefore, with those who currently applaud “neighborhood” schools which isolate Negro from white, impoverished from affluent, and one ethnic group clustered in one corner of a city from all other citizens is inadequate educational history. Since in Mann’s time the age of the motor car lay far beyond the horizon, schools within walking distance from home were simply an imperative; and, given his contemporary housing patterns, the multiple integration Mann insisted on could be achieved within the neighborhood school’s frame.
193
.
See
N. Glazeb & D. Moynihan, Beyond the Melting Pot ch. 1 (1963).
194
.
Brief for the Committee of Law Teachers Against Segregation in Legal Education,
34 Minn.L.Rev. 289, 319-320 (1950). The authors included Thomas I. Emerson, John P. Frank, Erwin N. Gris-wold and Edward Levi.
195
. The other side of the coin is the situation to the west of the Park. There the neighborhood policy produces student bodies which, in the northern half, are ■all 85-100% white and, in the south, are more than two-thirds white in each of the elementary schools. No other school ■anywhere in the District is currently so much as 67% white. And these white ■student bodies combine with the segregatory assignment of white teachers, the inbreeding of white principals, a depth ■of trained, experienced teachers, and a luxury of extra space. The upshot is a cluster of schools, physically set apart by the Park, primarily white and objectively superior, essentially constituting a school system unto itself.
196
.
E. g.,
McGowan v. State of Maryland, 366 U.S. 420 , 425 429, 81 S.Ct. 1101 , 6 L.Ed.2d 393 (1961); Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522 , 79 S.Ct. 437 , 3 L.Ed.2d 480 (1959). This, in essence, seems to be the test borrowed by the four Courts of Appeals which have ruled that
de facto
segregation is not unconstitutional. Deal v. Cincinnati Bd. of Educ., 6 Cir., 369 F.2d 55 (1966); Gilliam v. School Bd., 4 Cir., 345 F.2d 325 ,
vacated,
Bradley v. School Board, 382 U.S. 103 , 86 S.Ct. 224 , 15 L.Ed.2d 187 (1965); Downs v. Board of Educ., 10 Cir., 336 F.2d 988 (1964),
cert. denied,
380 U.S. 914 , 85 S.Ct. 898 , 13 L.Ed.2d 800 (1965); Bell v. School City of Gary, 7 Cir., 324 F.2d 209 (1963),
cert. denied,
377 U.S. 924 , 84 S.Ct. 1223 , 12 L.Ed.2d 216 (1964).
197
. The eases listed in the above paragraphs, while not all written in exactly these terms, have long been understood as reasoning in the direction indicated.
See
Horowitz,
Unseparate But Unequal —The Emerging Fourteenth Amendment Issue in Public Education,
13 U.C.L.A. L.Rev. 1147, 1155-1159 (1966); Van Alstyne,
Student Academic Freedom and the Rule-Making Powers of Public Universities: Some Constitutional Considtions,
2 Law in Tbans.Q. 28 (1965); McKay,
Political Thickets and Crazy Quilts, Reapportionment and Equal Protection,
61 Mich.L.Rev. 645, 664 — 676 (1963) ; Comment,
Equal Protection and the Indigent Defendant: Griffin and Its Progeny,
16 Stan.L.Rev. 394, 397-405 (1964) ; Casenotes, 80 Habv.L.Rev. 176 (1966), 70 Habv.L.Rev. 126 (1956).
And see Harper, supra,
383 U.S. at 680-686 , 86 S.Ct. 1079 (Harlan, J., dissenting).
That the equal protection standards to be applied in cases dealing with racial classifications and laws infringing fundamental rights are thus similar does no offense to the assumption that the former are the far more uniformly unconstitutional. This difference comes, however, less from the governing standards themselves than from the pattern of results of the standards as applied. Not until another national emergency arises,
see
Korematsu v. United States, 323 U.S. 214 , 65 S.Ct. 193 (1944), will outright racial discriminations be backed by a legitimate, let alone overriding, governmental purpose; but such purposes may frequently be discoverable in the case of evenhanded laws which, unavoidably, touch vital personal interests.
198
. While in the District it is whites who are the minority, Negroes are unable to translate their superior numbers into political power, for the obvious reason that citizens in the District are disenfranchised with respect to local government. Ultimate responsibility for the District’s schools is lodged in the Congress and its District Committees; immediate responsibility in a Board of Education on which until last week Negroes had only a minority vote, and only a one-third vote when the basic decisions on desegregation were reached in 1954. And since they are neither elected nor reelected, but appointed by the judges of the District Court, Negro Board members are neither responsive nor responsible to the public will of the local, largely poor Negro community.
Compare
Fiss,
supra
Note 190, at 610-611.
199
. The court does not object to the primary conclusion of the Seventh Circuit in Bell v. School City of Gary, 324 F.2d 209 (1963),
cert. denied,
377 U.S. 924 , 84 S.Ct. 1223 (1963), that curing segregation is not so automatically paramount an interest that “little, if any, consideration need to be given to the safety of the children, convenience of pupils and their parents, and costs of the operation of the school system.”
Id.
at 212. On the contrary, these factors should be carefully assessed; but integration must also be given its due and considerable weight.
See also
Evans v. Buchanan, D.Del., 207 F.Supp. 820, 824 (1962), which uses a weighing approach; Fiss,
supra
Note 190, at 598-612.
200
. It is clear that a transfer policy which does not encompass provision of transportation would be a very weak instrument for achieving integration. It is illuminating that under the school system’s open transfer policy, designed to relieve overcrowding, only 200 elementary school students, many of them white, have availed themselves of the transfer option (they are included in the figures below). For most elementary school students a transfer policy without transportation is a right without substance.
Here are the student capacities and 1966-67 enrollments of the elementary schools west of the Park. The figures in parentheses are the numbers of Negroes enrolled in each school.
School Capacity Enrollment
Eaton 510 419 (51)
Fillmore 270 116 (20)
Jackson 270 93 (21)
Janney 600 514 (25)
Hardy 330 201 (60)
Hearst 300 285 (34)
Hyde 240 138 (30)
Key 300 206 (42)
Lafayette 690 731 (17)
Mann 300 228 (13)
Murch 690 601 (18)
Oyster 270 315 (40)
Stoddert 300 200 (24)
Eleven of these 13 schools are underutilized. Given the 1966-67 enrollments, 662 Negroes could be imported into these 11 even if no school is allowed to become more than 40% Negro; 833 Negroes, 50%; 1109 Negroes if all places are filled.
201
.
E. g.,
Pettigrew & Pajonas,
supra
Note 189, at 104. This remedy also serves as a temporary measure for the relief of the disparate overcrowding in the Negro schools.
See
Section III,
supra.
In gauging its advisability, the court balances against its costs its cumulative power to improve two unconstitutional conditions.
202
. Wanner v. County School Bd., 4 Cir., 357 F.2d 452 , 457 & n. 7 (1966); Springfield School Comm. v. Barksdale, 1 Cir., 348 F.2d 261 (1965).
Another of Dr. Hansen’s arguments pertained to the Urban League’s recommendation that Negro students be bused involuntarily. The court’s order includes no such provision and therefore this argument does not apply.
203
.
See
1 U. S. Commission on Civil Bights, Bacial Isolation in the Public Schools eh. 4 (1967); Levenson,
Educational Implications of De Facto School Segregation,
16 W.Bes.L.Bev. 545 (1965).
204
.
See
Beport oe the White House Conference, To Fulfill These Bights 77 (1966); Harvard Graduate School of Education, Education for Pittsburgh (1966).
205
.
See
Justice Burton’s opinion for the Court and Justice Frankfurter’s dissent in Morey v. Doud, 354 U.S. 457 , 77 S.Ct. 1344 , 1 L.Ed.2d 1485 (1957); Quaker City Cab Co. v. Commonwealth of Pennsylvania, 277 U.S. 389, 405-406 , 48 S.Ct.
*512
553, 72 L.Ed. 927 (1928) (Brandeis, J., dissenting) (state’s power to classify for taxation purposes). A rational basis will not suffice to validate all classifications, however.
See
pp. 506-508,
supra.
206
. “Capacity to learn” — rather than “ability” — -is a more precise description of the trait looked to in ability grouping. Although present ability is one element considered, the concept of ability grouping is to provide students with an education designed to help them realize their maximum potential — i. e., to progress as fast and as far as possible according to their innate capacity to learn.
See
Findings IV-B.
207
. Plaintiffs’ Reply Memorandum, p. 2. Thus defendants’ argument that ability grouping wins implicit support from its common usage in the United States, from various broad policy statements in Acts of Congress
(e. g.,
the National Defense Education Act of 1958, 20 U.S.C. § 401
et seq.),
and even from a strained reading of a phrase in Brown v. Board of Education, 347 U.S. 483 ,-494, 74 S.Ct. 686, 691 (1954) (“To separate them from others of similar age and qualifications solely because of their race * * * [is unconstitutional]”), is irrelevant. Defendants’ Brief pp. 42 — 45.
208
. Although plaintiffs have alleged that in origin and in present administration defendants through the track system were and are intentionally discriminating against the Negro students contrary to the mandate of Bolling v. Sharpe, 347 U.S. 497 , 74 S.Ct. 693 (1954), the evidence does not sustain them.
See
Finding IVA.
Of course, the track system is not insulated from constitutional infirmity simply because its motivation is not one of intended racial discrimination.
See
Note 167
supra
and accompanying text.
209
. Abilities that, as it turns out, are not real at all.
See
pp. 513-514,
infra.
210
.
See
Findings IV-D & F.
211
.
See e. g.,
Morey v. Doud, 354 U.S. 457 , 77 S.Ct. 1344 (1957); Skinner v. State of Oklahoma, 316 U.S. 535 , 62 S.Ct. 1110 , 86 L.Ed. 1655 (1942).
See generally
Tussman & ten Broek,
The Equal Proteetion of the Laws,
37 Calif.L. Rev. 341 (1949).
Given tlie nature of the right involved here and the class of persons affected, plaintiffs are entitled to careful judicial scrutiny of defendants’ professions that classifications are in fact based on actual ability to learn.
See
pp. 506-50S,
supra.
212
.
See generally
Findings IV-F.
Defendants have cited a number of cases for the proposition that courts will not enjoin the classification and assignment of pupils according to abilities as ascertained through the use of aptitude tests. Stell v. Savannah-Chatham County Bd. of Educ., 5 Cir., 333 F.2d 55 (1904); Evans v. Ennis, 3 Cir., 281 F.2d 385 (1960); Borders v. Rippy, 5 Cir., 247 F.2d 268 (1957); Youngblood v. Board of Pub. Instruction, N.D.Fla., 230 F.Supp. 74 (1964); Calhoun v. Members of Bd. of Educ., N.D.Ga., 188 F.Supp. 401 (1959); Jones v. School Bd., E.D.Va., 179 F.Supp. 280 (1959). These cases, however, are completely inapposite here, because in none of them did the courts have occasion to consider whether the tests used were in fact accurate in ascertaining innate ability.
213
.
Compare
Weyrauch,
Dual Systems of Family Law: A Comment,
in The Law of the Poor 457, 463 (1966).
214
. Clark v. Board of Educ., 8 Cir., 369 F.2d 661 (1966); Wheeler v. Durham City Bd. of Educ., 4 Cir., 363 F.2d 738 (1966).
*
Instructions are oral, test is- pictorial; verbal to extent of comprehending instructions as to wliat question is asking. (Tr. 3233.)
**
One principal testified that this test is optional.' (Tr. 4070.)
***
There has been no evidence as to how many students are tested under the optional program.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1800940. Public record. Not legal advice.