Brown v. Board Of Education Of Topeka

892 F.2d 851

57 Ed. Law Rep. 1167

Oliver BROWN, et al., Plaintiffs,

and

Charles Smith and Kimberly Smith, Minor Children, By Their

Mother And Next Friend, Linda Brown Smith, et al.,

Intervening Plaintiffs-Appellants,

v.

BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS, et

al., Defendants-Appellees.

No. 87-1668.

United States Court of Appeals,

Tenth Circuit.

Dec. 11, 1989.

Rehearing and Rehearing En Banc Denied Jan. 29, 1990.

Christopher A. Hansen (Richard Jones, Wichita, Kan., Charles Scott, Sr., Charles Scott, Jr., Kansas City, Mo., and Joseph Johnson, Topeka, Kan., with him on the brief), American Civil Liberties Union Foundation, for plaintiffs-appellants.

Dan Biles, of Gates & Clyde, Overland Park, Kan., Carl Gallagher, Asst. Atty. Gen. (Robert T. Stephan, Atty. Gen. with him on the brief), and K. Gary Sebelius (Ann L. Baker, Charles D. McAtee and Charles N. Henson with him on the brief) of Eidson, Lewis, Porter & Haynes, Topeka, Kan., for defendants-appellees.

Before McKAY, SEYMOUR and BALDOCK, Circuit Judges.

SEYMOUR, Circuit Judge.

1

"[O]nce you begin the process of segregation, it has its own inertia. It continues on without enforcement." 1 This comment by one expert on segregation in schools succinctly summarizes the state of affairs in Topeka. As a former de jure segregated school system, Topeka has long labored under the duty to eliminate the consequences of its prior state-imposed separation of races. Brown v. Board of Educ., 349 U.S. 294 , 75 S.Ct. 753 , 99 L.Ed. 1083 (1955). The district court concluded that Topeka has fulfilled that duty, and that the school system is now unitary. Because we are convinced that Topeka has not sufficiently countered the effects of both the momentum of its pre-Brown segregation and its subsequent segregative acts in the 1960s, we reverse. Specifically, we hold that the district court erred in placing the burden on plaintiffs to prove intentional discriminatory conduct rather than according plaintiffs the presumption that current disparities are causally related to past intentional conduct. We are convinced that defendants failed to meet their burden of proving that the effects of this past intentional discrimination have been dissipated. We also reverse the district court's holding that the Topeka school district has not violated Title VI. However, we affirm the court's dismissal of the Governor of the State of Kansas and its ruling that the State Board of Education bears no liability for segregation in Topeka's schools.

I.

LEGAL HISTORY

2

Prior to 1954, a Kansas statute permitted certain cities to maintain separate schools for white and black children below the high school level. In 1941, however, the Kansas Supreme Court held segregation in Topeka's junior high schools to be unconstitutional. See Graham v. Board of Educ., 153 Kan. 840 , 114 P.2d 313 (1941) (separate facilities not equal). Topeka was thus legally permitted to operate segregated schools only at the elementary level. The Topeka Board of Education operated such a system. In 1951, black citizens of Topeka filed a class action challenging the constitutionality of the Kansas law authorizing school segregation. Brown v. Board of Educ., 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954) (Brown I ), followed, beginning a new era of American jurisprudence by bringing an end to the doctrine of "separate but equal" and declaring segregation unconstitutional.

3

The Topeka Board of Education did not wait for the decision in Brown I before taking steps towards desegregating Topeka's elementary schools. It began that process in 1953 by permitting black students to attend two formerly all-white schools. It then gradually increased the number of schools black students might attend. Accordingly, when the Supreme Court considered the question of the relief appropriate in school desegregation cases, it noted that "substantial progress" had already been made in Topeka. Brown v. Board of Educ., 349 U.S. 294, 299 , 75 S.Ct. 753, 756 , 99 L.Ed. 1083 (1955) (Brown II ). On remand, the district court criticized one aspect of the Board's desegregation plan but described it overall as "a good faith effort to bring about full desegregation in the Topeka Schools in full compliance with the mandate of the Supreme Court." Brown v. Board of Educ., 139 F.Supp. 468, 470 (D.Kan.1955). The court retained jurisdiction of the case, and the decision was not appealed.

4

Nineteen years later, in 1974, the Office of Civil Rights (OCR) of the Department of Health, Education, and Welfare (HEW) notified the Topeka school district that it was not in compliance with section 601 of Title VI of the Civil Rights Act of 1964. 2 After the Topeka Board of Education failed to adopt a plan designed to remedy the noncomplying conditions identified by OCR, HEW began administrative enforcement proceedings against the Topeka school district. The Board filed suit in federal court and obtained a preliminary injunction against the administrative proceeding on the ground that the district court's 1955 decision was a final order, and that the school district was still operating under that court order and still subject to the court's jurisdiction. HEW was thereby precluded from taking administrative action. See generally Brown v. Board of Educ., 84 F.R.D. 383, 390-91 (D.Kan.1979). In 1976, the Board submitted a plan acceptable to HEW, and both the administrative proceeding and the suit in federal court were dismissed. The Board implemented the plan over the next five years.

5

In 1979, a group of black parents and children sought to intervene in Brown as additional named plaintiffs on the ground that they were members of the original class and that the original named plaintiffs no longer had a sufficient interest in the matter to represent their interests. The intervenors asserted that Topeka has failed to desegregate its schools in compliance with the Supreme Court's mandate, and that the Topeka school district currently maintains and operates a racially segregated school system. Their request to intervene was granted. 3 See Brown, 84 F.R.D. 383 . A long discovery and motion stage followed the granting of the intervenors' motion.

6

Trial took place in October 1986. The court found the Topeka school district to be an integrated, unitary school system. Brown v. Board of Educ., 671 F.Supp. 1290 (D.Kan.1987). The court also held that the Topeka school district had not violated Title VI of the Civil Rights Act of 1964, dismissed the Governor of Kansas from the case, and found that the State Board of Education bore no liability for racial conditions in the school district. This appeal followed.

II.

BRIEF FACTUAL HISTORY

A. Population Change

7

In 1950, Topeka's population was approximately 10% black. While Topeka's population grew significantly until 1970 and then dropped, the black percentage of the population remained approximately the same. The Hispanic population of Topeka has been slightly less than 5% since 1970. Other minorities make up less than 1.5% of the population.

8

The distribution of Topeka's population has changed more significantly than its composition. In general, the outer parts of Topeka, particularly on the western side, have grown considerably in population, while the inner city has declined. Until recently, the western side of Topeka was almost exclusively white. The black population of Topeka was concentrated in a few areas in the center of the city in the 1950s; it has since spread widely throughout the eastern part of the city and has gradually begun to move into the western side of Topeka.

9

The percentage of black and minority children in the Topeka schools has long been higher than the percentage of blacks and minorities in the Topeka population as a whole and has risen over time. In 1952, black students constituted 8.4% of the total number of students in Topeka. By 1966, the percentage of black students in the Topeka school district was 11.6% and the percentage of minority students was 16.0%. In 1975, black students constituted 14.7%, and minority students 20.9%, of the school population. The latest figures used at trial, those for the 1985 school year, showed 18.4% black and 25.95% minority children in the system.

B. Elementary Schools

10

In 1951, four Topeka elementary schools were reserved for black children, Buchanan, McKinley, Monroe, and Washington. Eighteen elementary schools educated white children. Black children were bused to their schools; white children attended neighborhood schools. 671 F.Supp. at 1291 . Under the four-step plan approved by the district court in 1955, all elementary schools were to be opened by September of 1956 to black and white children under a neighborhood school policy. Id. at 1293 . As a result of the new neighborhood school policy, three schools remained all- or virtually all-black (Buchanan (100%), Monroe (100%), Washington (99.4%)), and two others became more than 20% black in a school district with a black elementary student population of less than 10%. 4 McKinley was closed.

11

During the late 1950s, the school district acquired by annexation the Avondale (outer Topeka, south) and Highland Park (middle and outer Topeka, east) school districts as well as other territory on the edges of the district. Existing schools within the acquired area were either primarily white or primarily black. As school enrollments grew and the population began to shift, the school district began to close elementary schools in the inner part of the city and open them in the rapidly growing outer part of the city. Two of the closed schools were former de jure black schools (Buchanan, and Washington); another de jure school (McKinley) had already been closed. The new schools were built in the newly acquired white areas and opened with all or virtually all white students.

12

Racial statistics were not kept in an organized fashion from 1956 to 1966. In 1966, the school district operated thirty-five elementary schools. There were some white students in every school. Minority students were present in thirty-two schools. Nineteen of the schools were 90 + % white. An additional seven schools were 80-90% white. Four schools were more than 50% minority, and a fifth was almost 50%. The highest percentage of minority students was 93.1% (Parkdale), and the lowest was 0% (Lyman, McEachron, and Potwin). Sixty-five percent of white students attended 90 + % white schools and an additional 18.7% attended 80-90% white schools. Close to half of all minority students attended 50 + % minority schools. 5

13

A second major reorganization of the elementary schools took place in the late 1970s, after the HEW complaint was filed. Eight elementary schools closed over a six-year period, including the last of the four former de jure black schools (Monroe). In September 1982, when the reorganization had ended, minority and white students were present in each of the district's twenty-six elementary schools. 6 Five schools were 90 + % white, and another seven were 80-90% white. Four schools were 50 + % minority, two of them were schools that had been 50 + % minority since 1966. The highest percentage of minority students was 60.6% (Highland Park North), and the lowest was 3.4% (McClure). Close to one-quarter of all white students attended the 90 + % white schools, and another third attended 80-90% white schools, totalling 58% overall. The percentage of minority students in 50 + % minority schools was 35.5%. 7 This was the status of the elementary schools three years after plaintiffs moved to intervene in this lawsuit on the grounds that the school system had not met its mandate to desegregate.

14

With one or two exceptions, the relative percentages of white and minority students in the elementary schools have changed only by two or three percentage points since that time. The most significant change is that the schools with the highest white percentages have gained some minority students. Thus, in 1985, the lowest percentage of minority students in any school was 7.2% (McClure). 8

C. Secondary Schools

15

In 1954, the Topeka school district operated six junior highs and one high school. Two schools were 90 + % white, and three were 80 + % white. The estimated percentage of black students at the junior high schools ranged from 1.7% (Roosevelt) to 30% (East Topeka). 9 While the dissent emphasizes that segregation was not mandated by law for the secondary schools when Brown I was decided, and the student bodies were racially mixed, Linda Brown Smith testified that the junior high school she attended in 1955 (Curtis) had an all-white faculty. 10 When she entered Topeka High school, she recalls that it had one black faculty member. 11

16

During the late 1950s-early 1960s period of annexations and building, two junior high schools joined the school system, and three junior highs were built. At the high school level, Highland Park high school was annexed, and Topeka West high school was built. All of these schools were in the newly acquired white outer part of the school district and opened as white or primarily white schools. 671 F.Supp. at 1299 .

17

In 1966, there were thus eleven junior high and three high schools. At that time, the average minority percentage for the junior high and high schools was 15.3% and 14.9%, respectively. 12 Of the junior highs, five had 90 + % white students and another three had 80-90% white students; one had 50 + % minority students. The highest percentage of minority students at one school was 61.8% (East Topeka), and the lowest percentage was 0% (Capper). Of the high schools, Topeka High was nearly one-quarter minority, Highland Park High had close to 15% minority students, and Topeka West had .4% minority students. French junior high school opened in 1970 in the southwestern part of the school district as a primarily white school. 671 F.Supp. at 1299 .

18

The reorganization of the late 1970s in response to the HEW complaint included the junior high schools. Two junior highs closed in 1975. In 1980, five more junior highs closed and two schools were opened as the district shifted from a junior high (6-3-3) to a middle school (6-2-4) format. In 1981, after the end of the reorganization, there were six middle schools in the Topeka school district. Two were 90 + % white and one was 80-90% white. The highest percentage of minority students was 45.7% (Eisenhower) and the lowest 5.5% (French). By 1985, the relative percentages at some schools had altered by approximately 5%, but the pattern across the district had not changed. 13 The percentage of minority students at the three high schools was 39.8% (Highland Park), 32.5% (Topeka High), and 5.25% (Topeka West) in 1981, and 33.6% (Highland Park), 30.9% (Topeka High), and 7.9% (Topeka West) in 1985.

III.

THE PARTIES

19

All of the parties to this case have changed. The original plaintiff children have long since left the Topeka school system. The school district has been reorganized, and the State Board of Education came into existence in 1969. These changes have affected the posture of the litigation to some extent. The original named plaintiffs represented black elementary school children and their parents. Current named plaintiffs represent black children throughout the school system and their parents. The school district grew considerably in size as the city of Topeka annexed territory, although the school district's boundaries were fixed about 1960 while the city continued to grow. The district was also renamed Unified School District # 501 as part of a state-wide reorganization of school districts in 1965. 671 F.Supp. at 1292 . The State Board of Education is the product of a 1966 state constitutional amendment. Its powers differ considerably from those of its predecessor. Id.; Brief for Individually-Named Defendants Associated with the State Board of Education at 1, 3-4.

IV.

GENERAL PRINCIPLES OF UNITARINESS

20

Unitariness is a finding of fact reviewed under the clearly erroneous standard. 14 Before we assess the status of school desegregation in Topeka, we set forth the principles that guide our consideration of the unitariness issue.

21

The district court defined a unitary school system as "one in which the characteristics of the 1954 dual system either do not exist or, if they exist, are not the result of past or present intentional segregative conduct of" the school district. 671 F.Supp. at 1293 . 15 These are necessary ingredients in a unitariness determination because once a violation is found, "[t]he Board has ... an affirmative responsibility to see that pupil [and faculty] assignment policies and school construction and abandonment practices 'are not used and do not serve to perpetuate or re-establish the dual school system.' " Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 538 , 99 S.Ct. 2971, 2979 , 61 L.Ed.2d 720 (1979) (Dayton II ) (quoting Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 460 , 99 S.Ct. 2941, 2948 , 61 L.Ed.2d 666 (1979). An additional essential requirement of unitariness, however, is whether "school authorities [have made] every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation." Davis v. Bd. of School Comm'rs, 402 U.S. 33, 37 , 91 S.Ct. 1289, 1292 , 28 L.Ed.2d 577 (1971); see also Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 26 , 91 S.Ct. 1267, 1281 , 28 L.Ed.2d 554 (1971).

22

To determine whether a school district has become unitary, therefore, a court must consider what the school district has done or not done to fulfill its affirmative duty to desegregate, the current effects of those actions or inactions, and the extent to which further desegregation is feasible. 16 After a plaintiff establishes intentional segregation at some point in the past and a current condition of segregation, a defendant then bears the burden of proving that its past acts have eliminated all traces of past intentional segregation to the maximum feasible extent.

A. Current Condition of Segregation

23

The actual condition of the school district at the time of trial is perhaps the most crucial consideration in a unitariness determination. The plaintiff bears the burden of showing the existence of a current condition of segregation. The case law is decidedly unclear as to the precise meaning of that term. 17 In our view, a plaintiff must prove the existence of racially identifiable schools, broadly defined, to satisfy the burden of showing a current condition of segregation. Racially identifiable schools may be identifiable by student assignment alone, in the case of highly one-race schools, or by a combination of factors where the school is not highly one-race in student assignment.

24

"What is or is not a segregated school will necessarily depend on the facts of each particular case. In addition to the racial and ethnic composition of a school's student body, other factors, such as the racial and ethnic composition of faculty and staff and the community and administration attitudes toward the school, must be taken into consideration."

25

Keyes v. School Dist. No. 1, 413 U.S. 189, 196 , 93 S.Ct. 2686, 2691 , 37 L.Ed.2d 548 (1973).

26

Although virtual one-race schools "require close scrutiny," they are not always unconstitutional. 18 Swann, 402 U.S. at 26 , 91 S.Ct. at 1281 . Their existence in a system with a history of de jure segregation, however, establishes a presumption that they exist as the result of discrimination and shifts the burden of proof to the school system. Id. The presence of essentially one-race schools is thus sufficient to satisfy a plaintiff's initial burden of showing a current condition of segregation.

27

Courts have used various standards to define "one-race schools." 19 Standards may appropriately differ from school district to school district because the percentage of minority students may likewise vary. 20 Whatever the minority percentage district-wide, however, it is clear that a school with 90 + % students of one race is a predominantly one-race school. 21 Moreover, this is true whether the students at the school in question are white or minority. 22

28

Where racial imbalance in student assignment is still extreme in a system that formerly mandated segregation, appellate courts have reversed findings of unitariness without looking to other factors. 23 However, no particular degree of racial balance is required by the Constitution. 24 A degree of imbalance is likely to be found in any heterogeneous school system. Therefore, the existence of some racial imbalance in schools will often not be conclusive in itself.

29

Where numbers alone are insufficient to define racially identifiable schools, courts look to demography, geography, and the individual history of particular schools and areas of the city. 25 While a multi-race school cannot be classified as racially identifiable merely by tallying up the race of the students who attend it, such a school may be racially identifiable "simply by reference to the racial composition of teachers and staff, the quality of school buildings and equipment, or the organization of sports activities," among other factors. Swann, 402 U.S. at 18 , 91 S.Ct. at 1277 . 26 These factors alone can establish a prima facia case of a constitutional violation. Id. Therefore, a plaintiff may prove a school to be racially identifiable by factors that may, but need not, include student assignment.

B. The Parties' Burdens

30

Once a plaintiff has proven the existence of a current condition of segregation, the school district bears the substantial burden of showing that that condition is not the result of its prior de jure segregation. Under the relevant Supreme Court decisions, mere absence of invidious intent on the part of the school district is not sufficient to satisfy its "heavy burden" of proof; the district's duty is to act affirmatively, not merely to act neutrally.

31

"[T]he measure of the post-Brown I conduct of a school board under an unsatisfied duty to liquidate a dual system is the effectiveness, not the purpose, of the actions in decreasing or increasing the segregation caused by the dual system. As was clearly established in Keyes and Swann, the Board had to do more than abandon its prior discriminatory purpose. The Board has had an affirmative responsibility to see that pupil assignment policies and school construction and abandonment practices 'are not used and do not serve to perpetuate or re-establish the dual school system.' "

32

Dayton II, 443 U.S. at 538, 99 S.Ct. at 2979 (emphasis added) (citations omitted). See also Swann, 402 U.S. at 26 , 91 S.Ct. at 1281 (burden on school board to establish current racial composition of schools not the result of their present or past actions). The school district must show that no causal connection exists between past and present segregation, not merely that it did not intend to cause current segregation. The causal link between prior and current segregation is not snapped by the absence of discriminatory intent alone, or even by a firm commitment to desegregation, where it is not accompanied by action that in fact produces a unified school district. Id.

33

The dissent clearly has misconstrued the parties' burdens. The emphasis throughout the dissent is on the necessity of plaintiffs proving a current condition of intentional segregation before any burden shifts to the school district. Although the revised dissent has removed a number of its prior references to "intentional" when discussing "current condition of segregation," and contends that it has not misapplied the burden, the tenor of the current version of the dissent belies this assertion. See Dissent at 892 ("In a former de jure system, plaintiffs may establish the prima facie case by proving that there is a current condition of intentional segregation") (emphasis added); id. at 904 ("a plaintiff may satisfy his initial burden of proof by relying upon evidence of 'recent and remote intentionally segregative actions' of the school board") (emphasis added); id. at 917 ("This court misses the mark if it is implying that intent is not relevant in this case."); id. at 920 ("intent, whether proven by direct or circumstantial evidence, remains an essential element."); id. at 920-921 ("It is clear that to sustain the presumption, the plaintiffs were required to prove 'a current condition of segregation from intentional state action.' ") (emphasis added); id. at 952 ("The requirement of a current condition of segregation resulting from past or present segregative intent (as opposed to segregation resulting from voluntary demographic change), prior to the operation of the presumption, allows a school system to redeem itself.") See also Dowell v. Board of Educ., 890 F.2d 1483 , 1519 (10th Cir. 1989) (Baldock, J., dissenting) ("To understand the problems with this court's approach, it is necessary to understand how the burden of proof is allocated before a school district becomes unitary. In a system that was statutorily or officially dual, plaintiffs may establish the prima facie case by proving that there is a current condition of intentional segregation; that the de jure system or its vestiges remain or were reestablished in part of the school system.") (emphasis added).

34

On the contrary, however, once a school system has been declared unconstitutional because of the existence of de jure segregation, "[u]ntil the ... School System achieves unitary status, official action that has the effect of perpetuating or reestablishing a dual school system violates the defendants' duty to desegregate." Pitts v. Freeman, 755 F.2d 1423, 1427 (11th Cir.1985) (emphasis in original); see also, e.g., Morgan v. Nucci, 831 F.2d 313, 329 (1st Cir.1987) ("[T]he fact that a particular school policy or program may be 'racially neutral,' in that it no longer reflects discriminatory animus, does not prove that the effects of prior discrimination have been purged"). Even the dissent in Dayton II recognized that "the affirmative duty renders any discussion of segregative intent after 1954 gratuitous." 443 U.S. at 542-43, 99 S.Ct. at 2982-83.

35

The dissent falls into this error by viewing this case as one of initial liability. The cases the dissent relies on for its statements about plaintiffs' need to prove intentional segregation are all cases describing a plaintiff's duty to establish de jure segregation in the first instance. See, e.g., Columbus Bd. of Educ. v. Penick, 443 U.S. 449 , 99 S.Ct. 2941 , 61 L.Ed.2d 666 (1979) (dissent at 892, 903-904, 911, 917); Keyes (dissent at 892, 903-904, 919, 920-21). This is not such a case. As in Swann, plaintiffs here are alleging that a school system which has already been declared unconstitutional in earlier years has never fulfilled its affirmative duty to eradicate the effects of that segregation. Under these circumstances, plaintiffs need only show that current racial disparities exist, not that such disparities are the result of current intentional segregation on the part of the school board. See Swann, 402 U.S. at 26 , 91 S.Ct. at 1281 . This is not a liability case in which plaintiffs must prove that the school board has committed unconstitutional acts; that was established in 1954.

36

Where a plaintiff has established segregation in the past and the present, it is "entitled to the presumption that current disparities are causally related to prior segregation, and the burden of proving otherwise rests on the defendants." 27 School Board of the City of Richmond v. Baliles, 829 F.2d 1308, 1311 (4th Cir.1987); see also Dayton II, 443 U.S. at 536, 99 S.Ct. at 2978 (systemwide nature of de jure schools in 1954 "furnished prima facie proof that current segregation ... was caused at least in part by prior intentionally segregative official acts [and] judgment for the plaintiffs was authorized and required absent sufficient countervailing evidence by the defendant school officials."); Keyes, 413 U.S. at 211 n. 17, 93 S.Ct. at 2699 n. 17 (after de jure segregation is established, "the burden becomes the school authorities' to show that the current segregation is in no way the result of those past segregative actions."); Vaughns v. Board of Educ., 758 F.2d 983 , 991 (4th Cir.1985) (same). This presumption ensures that subconscious racial discrimination does not perpetuate the denial of equal protection to our nation's school children. 28 A focus on provable intent alone would deny a remedy to too many Americans.

37

The dissent asserts that under this view of the law, liability in this case would be frozen as of 1954 and "we merely would decree a remedy based upon the failure of the school board to have absolute racial balance at every school and much of this court's opinion ... would be superfluous." Dissent at ----. Of course, liability is not frozen; it just remains until the school board, not the plaintiffs, bears the burden of proving that current racial disparities in the school system are not the result of the prior segregated school system.

38

Contrary to the district court's apparent conclusion, see 671 F.Supp. at 1297 , remoteness in time does not make past intentional acts less intentional. See Dayton II, 443 U.S. at 535-36, 99 S.Ct. at 2977-78; Keyes v. School Dist. No. 1, 413 U.S. 189, 210-11 , 93 S.Ct. 2686, 2698-99 , 37 L.Ed.2d 548 (1973). The passage of time merely presents an opportunity for a school district to show that the presumptive relationship between the de jure system and the current system is so attenuated that there is no causal connection. See id. at 211 , 93 S.Ct. at 2699 .

39

What the school district has done to integrate is crucial in determining whether the causal link between the prior segregation and the current disparities has been severed. The district may carry its burden by showing that it has acted affirmatively to desegregate. Absent such proof, the court must presume that current segregation is the result of prior intentional state action. A showing that the school district has not promoted segregation and has allowed desegregation to take place where natural forces worked to that end is insufficient.

40

The ultimate test of what the school district has done is its effectiveness, most significantly its effectiveness in eliminating the separation of white and minority children. 29 While a district is not always required to choose the most desegregative alternative when it selects a particular option, 30 the result of the sum of the choices made by the district must be to desegregate the system to the maximum possible extent. 31 Furthermore, the school district may "not ... take any action that would impede the process of disestablishing the dual system and its effects." Dayton II, 443 U.S. at 538, 99 S.Ct. at 2979.

41

One choice frequently made by school districts, and the one made in Topeka, is to use a neighborhood school plan as the basis for student assignment. Neighborhood schools are a deeply rooted and valuable part of American education. 32 To the extent that neighborhoods are themselves segregated, however, such plans tend to prolong the existence of segregation in schools. 33 Thus, they must be carefully scrutinized. They are not "per se adequate to meet the remedial responsibilities of local boards." Davis, 402 U.S. at 37 , 91 S.Ct. at 1292 ; see United States v. Board of Educ., Indep. School Dist. No. 1, Tulsa County, 429 F.2d 1253 (10th Cir.1970). 34

42

Neighborhood school plans must be both neutrally administered and effective. A plan that is administered in a scrupulously neutral manner but is not effective in producing greater racial balance does not fulfill the affirmative duty to desegregate. 35 It is equally important that a plan's neutrality be more than surface-deep. We have specifically held that when minorities are concentrated in certain areas of the city, neighborhood school plans may be wholly insufficient to fulfill the district's affirmative duty to eliminate the vestiges of segregation. Tulsa County, 429 F.2d at 1258-59 . Even when neighborhood school plans hold the promise of being effective, courts must recognize that the school district's choices on such questions as where to locate new schools, which schools to close, how to react to overcrowding or underutilization, and what transfer policy to offer, all have obvious impact on the school attendance boundaries the district can draw under a neighborhood school plan. 36 If these choices are not made with an eye toward desegregation, a neighborhood school plan may "further lock the school system into a mold of separation of races." Swann, 402 U.S. at 21 , 91 S.Ct. at 1278 . Ultimately, whether the use of a neighborhood school plan in a particular case is consistent with a school district's duty to desegregate turns on whether the "school authorities [have made] every effort to achieve the greatest possible degree of actual desegregation taking into account the practicalities of the situation." Davis, 402 U.S. at 33 , 91 S.Ct. at 1290 . Contrary to the dissent's suggestion, dissent at 897, a school district which chose a neighborhood school system in 1954 is not insulated from a later contention that neighborhood schools did not result in desegregation. 37 "A school system is not ... automatically desegregated when a constitutionally acceptable plan is adopted and implemented, for the remnants of discrimination are not readily eradicated." Ross v. Houston Indep. Sch. Dist., 699 F.2d 218, 225 (5th Cir.1983). 38

43

Actions the school district has not taken are also relevant in considering what the district has done. A school district which has not made use of such classic segregative techniques as gerrymandering, discriminatory transfer policies, and optional attendance zones is more likely to have fulfilled its duty to desegregate than a district that has done so. 39 Similarly, a school district that has made use of the various techniques available to encourage voluntary desegregation is more likely to have fulfilled its duty than one that has not. 40 Such techniques may include, for example, the establishment of magnet schools and vigorous official encouragement of desegregative transfers.

44

Finally, objective proof of the school district's intent must be considered. How a district lobbies its patrons and government agencies on issues that affect desegregation, whether it seeks and then heeds the desegregation recommendations of others, and the cooperativeness of the district in complying with court orders, for example, bear on the manner in which the district has shaped the current conditions in the school district. 41

C. Maximum Practicable Desegregation

45

What more can and should be done, if anything, is the final component in a determination of unitary status. 42 Essentially, a defendant must demonstrate that it has done everything feasible. Courts must assess the school district's achievements with an eye to the possible and practical, but they must not let longstanding racism blur their ultimate focus on the ideal. 43

46

In most unitariness cases, the school district has been implementing a court-approved desegregation plan under active court supervision. The question is usually whether closer adherence to the plan is practical or whether the plan has achieved its objectives. 44 The district court in such cases has been intimately involved with the process of desegregation and is well aware of the obstacles it faces. The court can thus make an informed judgment on the possibilities of further desegregation. Where the school district has complied with the desegregation plan to the best of its ability, and has done what can be done in spite of the obstacles in its way, it is reasonable to conclude that no further desegregation is feasible. 45

47

The present case is one of those rare ones in which the unitariness determination is not directly tied to the execution of a particular desegregation plan. In such a case, the consideration of whether further desegregation is practicable must include the obstacles that are likely to stand in its way, and whether they may be circumvented without imperiling students' health or the educational process. See Swann, 402 U.S. at 30-31 , 91 S.Ct. at 1282-83 . Where there are no significant barriers to desegregation, or such barriers as exist may be overcome without undue hardship, further desegregation is practicable. See id. at 28 , 91 S.Ct. at 1282 (mere awkwardness or inconvenience is no barrier to carrying out desegregation plan).

48

In sum, when a school system was previously de jure, a plaintiff bears the burden of showing that there is a current condition of segregation. It may do so by proving the existence of racially identifiable schools. The school district must then show that such segregation has no causal connection with the prior de jure segregation, and that the district has in fact carried out the maximum desegregation practicable for that district. We now apply these legal principles to Topeka.

V.

THE FINDING OF UNITARINESS

49

Because Topeka's schools formerly operated under a system of de jure segregation, "[t]he board's continuing obligation ... [has been] 'to come forward with a plan that promises realistically to work ... now, ... until it is clear that state-imposed segregation has been completely removed.' " Columbus Board of Educ. v. Penick, 443 U.S. 449, 459 , 99 S.Ct. 2941, 2947 , 61 L.Ed.2d 666 (1979). Prior to this case, no court had pronounced the Topeka school system unitary; hence, this duty never dissipated. The district court concluded, however, that the effects of de jure segregation have been eliminated in Topeka. On appeal, plaintiffs attack this determination.

A. Burden of Proof

50

Plaintiffs argue initially that the district court improperly required them to prove intentional discriminatory conduct on the part of the school district over the course of the decades instead of according them the benefit of a presumption that current segregation stems from the prior de jure system. Plaintiffs quote a number of sentences from the district court's opinion as support for their argument that the court placed on them the burden of proof on intent. Brief for Plaintiffs-Appellants at 27. 46 The court itself expressed some confusion as to the proper burden of proof. 671 F.Supp. at 1295 . We have considered both these citations and the tenor of the district court's opinion as a whole, and we are convinced that the court focused too greatly on the school district's lack of discriminatory intent. Although the percentage of minority students in Topeka is lower than in other cities involved in desegregation cases and consequently the statistics alone do not appear as egregious, we are persuaded that this overemphasis on the school district's intent led the court to make the same errors as did the district court in Dayton II. It failed "to apply the appropriate presumption and burden-shifting principles of law." Brinkman v. Gilligan, 583 F.2d 243, 251 (6th Cir.1978), aff'd sub nom. Dayton Board of Education v. Brinkman, 443 U.S. 526 , 99 S.Ct. 2971 , 61 L.Ed.2d 720 (1979). 47

51

The district court made the following findings: that the neighborhood school attendance boundaries drawn in 1955 had the effect of maintaining segregation; that the construction of new schools since that time had the effect of "promot[ing] racial separation"; that the reassignment of students from previous de jure schools to adjacent schools with higher-than-average percentages of minority students had the effect of increasing those percentages; and that the assignment of faculty had the effect of placing minority faculty disproportionately at schools with higher-than-average minority student percentages. 671 F.Supp. at 1300, 1301, 1304-05 . It is clear from the court's other findings that the school district's use of space additions, its siting of Topeka West high school, its drawing of attendance boundaries, and its failure to adopt various reorganization plans did not further the process of desegregation. Id. at 1298-1301, 1308-09 . Nevertheless, the court's discussion of most of these aspects of Topeka's history ends with the conclusion that because these actions were not taken with the intent to discriminate and were consistent with a "race-neutral" neighborhood school plan, they did not promote segregation. 48 The court evidently believed that if these two criteria, i.e., no intent to discriminate and consistency with a race-neutral neighborhood school plan, were met, the school district's actions would pass constitutional muster. The Supreme Court has made clear, however, that a "race-neutral" neighborhood school policy is not sufficient where it fails to remedy de jure segregation:

52

"Absent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems.

53

"... 'Racially neutral' assignment plans proposed by school authorities to a district court may be inadequate; such plans may fail to counteract the continuing effects of past school segregation resulting from discriminatory location of school sites or distortion of school size in order to achieve or maintain an artificial racial separation. When school authorities present a district court with a 'loaded game board,' affirmative action in the form of remedial altering of attendance zones is proper to achieve truly non-discriminatory assignments. In short, an assignment plan is not acceptable simply because it appears to be neutral."

54

Swann, 402 U.S. at 28, 91 S.Ct. at 1282 (emphasis added). 49

55

While we agree with the district court's findings that the current school administration is not presently acting with discriminatory intent--indeed, there is evidence that the present school board has some commitment to desegregation--we are persuaded that the court failed adequately to weigh the conduct of the school district for the past thirty years, and the current effects of that conduct. The court erred by limiting the school district's burden merely to showing that it had nondiscriminatory reasons for acting as it did. As thirty years of desegregation law have made clear, the Constitution requires more than ceasing to promote segregation. See part IV supra. "[T]he measure of the post-Brown I conduct of a school board under an unsatisfied duty to liquidate a dual system is the effectiveness, not the purpose, of the actions in decreasing or increasing the segregation caused by the dual system." Dayton II, 443 U.S. at 538, 99 S.Ct. at 2979. A lack of intent to discriminate is therefore insufficient. "In short, [a student] assignment plan is not acceptable simply because it appears to be neutral." Swann, 402 U.S. at 28 , 91 S.Ct. at 1282 . Mere adherence to a race-neutral but ineffective neighborhood school plan is insufficient. In general, any course of action that fails to provide meaningful assurance of prompt and effective disestablishment of a dual system is unacceptable. Wright v. Council of City of Emporia, 407 U.S. 451, 460 , 92 S.Ct. 2196, 2202 , 33 L.Ed.2d 51 (1972). The district court did not heed this mandate. While it did find that the school district had taken some actively desegregative actions, we are convinced that the court's overall conclusion as to unitariness was fatally infected by the inadequacy of the burden of proof standard to which it held the school district.

B. The Evidence

56

In order to assess the district court's finding of unitariness under the appropriate burden of proof and the general principles we have outlined, we turn to a more specific review of the record. As a general matter, it is important to note that much of the record evidence consists of statistics and other undisputed facts. 50 Our differences with the district court lie mainly in how the essentially undisputed facts are assessed in light of the school district's mandate to dismantle the segregated school system. We believe that the district court's finding of unitariness is flawed by the undue deference it gave to the school district's neighborhood school policy and by the court's failure to give proper weight to its own findings that certain actions and omissions by the school district had a segregative effect. 51 Cf. Diaz v. San Jose Unified School Dist., 733 F.2d 660, 674 (9th Cir.1984) (en banc) ("In making its determination in respect to the Board's intent, the district court erred in failing to give weight to the cumulative impact of the evidence"; district court's findings that defendants acted without segregative intent held clearly erroneous).

57

1. Current Condition of Segregation in Topeka

58

The district court found that "there are disparities in the racial makeup of various schools' enrollments," and that "[p]laintiffs have demonstrated that in general there are a greater than average number of minority faculty and staff in schools with a greater than average number of minority students." 671 F.Supp. at 1295, 1304 . Like most courts, however, the district court did not discuss separately the issues of current segregation and the causal connection between that segregation and the prior de jure segregation.

59

As we have pointed out, the simplest and most compelling evidence of segregation is the presence of predominantly one-race schools. In a system such as Topeka's, however, in which the minority student population is relatively small, there may be a number of primarily white schools even though minority students are spread through a significant number of other schools. In such a system, it is the concentration of minority students that is usually the hallmark of discrimination. 52 Because the significance of mostly white schools is therefore not necessarily as great in a mostly white system as it would be in a system with a heavy minority population, we focus on the broader form of racial identifiability discussed in part IV A above. In support of their argument that there is currently segregation in Topeka, plaintiffs point primarily to student assignment, and faculty and staff assignment. 53 We consider each in turn, and then together.

60

a. Student Assignment

61

Each of the experts who testified at trial used a different standard for determining whether a school was racially identifiable in student assignment. Plaintiffs' main experts, Mr. Lamson and Dr. Foster, each used standards that took the percentage of black or minority students actually enrolled in the elementary or secondary schools (26% in 1985), and then added and subtracted some number to obtain a range within which they did not consider schools to be racially identifiable on the basis of student assignment alone. Their methods differ to some extent, but for 1985 either method leads to a range of 11-41% (26% plus or minus 15%). 54 The school district's primary expert on this issue, Dr. Armor, used an absolute rather than a relative standard. In his view, desegregated schools should optimally have 20-50% minority students, regardless of the percentage of minority students in the system. Dr. Armor also allowed a variance, which resulted in a range of acceptability of 10-60%. 55

62

As plaintiffs point out, under any of these methods there are schools in Topeka that are racially identifiable by student assignment. Even under the most generous of these numerical standards, proposed by the school board's expert, there are six elementary and three secondary schools that are racially identifiable by student assignment.

63

Notwithstanding the dissent's view that the statistics regarding the percentages of minorities in the racially overbalanced schools do not add up to a current condition of segregation, we believe the figures speak for themselves. See supra at 856-58. In this connection, the charts in the dissent showing the racial inventories over the years at Belvoir, Hudson, Highland Park North, Lafayette, Quinton Heights, and Lowman Hill speak more eloquently about the current condition of segregation in Topeka than words ever could. See dissent at 936 n. 43; 938 n. 44; 939 n. 45; 939-40 n. 46; 941-42 n. 47; 946 n. 51.

64

b. Faculty and Staff Assignment

65

To determine racial identifiability by faculty/staff assignment, plaintiffs again used a standard based on the actual percentage of minority employees and a range of a few percentage points above and below that number. The school district contested the accuracy of plaintiffs' standard but presented no alternative one. We do not adopt plaintiffs' standard, but instead evaluate the data on its face. 56

66

In 1985, the percentage of minority faculty/staff in the Topeka school system was 11.2% for the elementary schools and 12.65% for the secondary schools. In the elementary schools, the percentage of minority faculty/staff at individual schools ranged from 0% to 33.3%. Nine schools had less than 5% minority faculty/staff, and two had more than 25%. 57 In the secondary schools, the percentage ranged from 2.5% to 24.7%. One school had less than 5% minority faculty/staff, an additional three schools had less than 10%, and one had more than 20%. 58

67

Faculty/staff data have been kept only since 1973 and, except for 1981, that data does not distinguish between faculty and staff. Rec., ex. vol. IV, at 263-68. Faculty/staff includes managerial personnel at both the school and district level, teacher aides, clerical/secretarial employees, skilled and technical employees, and service workers, as well as teachers and other professional staff. The distinction between faculty and staff is particularly relevant because the percentage of minority employees has always been lower than the minority student population, and has fallen steadily at the elementary level over the period such data was kept. Moreover, minorities are represented more heavily in staff positions than in faculty positions. In 1985, for example, district-wide statistics showed that 11.3% of elementary teachers and 8.0% of secondary teachers were minorities, while 19% of teacher aides and 20% of service workers were minorities. Rec., vol. IV, at 268. Any one faculty/staff person listed at any one school is thus more likely to be a teacher aide or service worker than a teacher.

68

We recognize that the small number of faculty and staff at any one school means that the presence or absence of one minority employee may have a considerable effect on the school's minority percentage. Nevertheless, we see no obviously neutral reason why McClure elementary school has no minority employees among its 25 faculty/staff and Topeka West high school has 3 among 120, while Avondale East elementary school has 10 minority faculty/staff out of a total of 31 employees and Robinson middle school has 12 out of 49.

69

c. Factors considered together

70

Because faculty/staff assignment is largely within the control of the school district, it is a potent tool for demonstrating that the district does or does not itself identify certain schools as white or minority. It also provides an opportunity for undoing some of the harm of segregated student assignments, because both white and minority students may benefit from the presence of minority role models. See Washington v. Seattle School District, No. 1, 458 U.S. 457, 472 , 102 S.Ct. 3187, 3196 , 73 L.Ed.2d 896 (1982) ("white as well as Negro children benefit from exposure to ethnic and racial diversity in the classroom"). Conversely, if the district disproportionately assigns minority faculty/staff to those schools with the highest percentages of minority students, the district is in effect reinforcing the identification of particular schools as white or minority. This practice of disproportionate assignments also reinforces the irrational notion that minority teachers are inferior and not fit to teach white children.

71

In Topeka, although the correlation is not completely uniform, see 671 F.Supp. at 1305 , there is a clear pattern of assigning minority faculty/staff in a manner that reflects minority student assignment. This correlation is fatal to the school district's effort to show a lack of current segregation. Both student assignment and faculty/staff assignment can be expected to vary from school to school, the former because of population distribution, and the latter, to a lesser extent, because of differing teacher credentials. When they vary together, as they do in Topeka, leading to schools that are noticeably more white or more minority in both students and faculty, it is difficult to posit a neutral explanation. 59 The school district has not attempted to provide one.

72

Moreover, when we look beyond the numbers, we find that the schools that are marked as white or minority by their students and faculty/staff are also so marked by their geography, the residential population in their attendance areas, and by their history. Of the six racially identifiable elementary schools detected by Dr. Armor's method, five are now and always have been attended almost exclusively by white students. They are located on the western and northwestern edges of the school district, areas with mostly white populations. 60 The same is true of the three secondary schools. See infra part V B(2)(c)(vii). The one remaining elementary school, Belvoir, is located on the eastern edge of the school district. The area has long been inhabited by a significant minority population, and the school's student population is now and has been for over twenty years more than half minority. See infra part V B(2)(c)(i). Finally, the correlation between student assignment and faculty/staff assignment is not a one-year fluke. The same correlation has existed throughout the course of this litigation. See infra part V B(2)(b)(ii). Considering all of these factors together, there is sufficient evidence to support plaintiffs' contention that there is a current condition of segregation in Topeka. 61 2. The Causal Link Between De jure Segregation and the Current Condition of Segregation

73

Brown I established that the Topeka school system was one of de jure segregation. Because there is a current condition of segregation, we turn our attention to the causal link between these two conditions of segregation, which must be assessed in light of the burden and factors set out in part IV B, supra. We are convinced that the school district failed to meet its burden of showing the absence of this link. This failure, which the district court did not see because it failed to impose on defendants the proper burden of proof, is the key to our reversal.

74

Timing is central to an assessment of the Topeka school district's actions. After what was described as a "good faith" beginning, Brown, 139 F.Supp. at 470 , the course the school district followed in the late 1950s and early 1960s may fairly be characterized as segregative. The decade from 1956 to 1966 is important because it established a framework from which the school district subsequently deviated very little. 62 A period of quiescence then followed, during which the system was simply administered as it stood. It was not until HEW threatened to withhold federal funds in the mid-1970s that the school district undertook some positive action to desegregate its schools. After that brief flurry of action, the school district again turned its attention elsewhere, but to its good fortune the oft-maligned forces of demography began to work in its favor. Two things are apparent from the record. First, Topeka has largely acted as if it had fulfilled its duty to desegregate at the conclusion of the four-step plan implemented in the 1950s. Second, although Topeka's schools have in fact become less segregated in the last decade, this lessening of segregation is due in part to forces beyond the control of the school district. Moreover, those desegregative actions which the school board did undertake were primarily the result of pressure from the federal government, or were instituted after this lawsuit was filed. 63 Although its record is better than that of many other school districts, Topeka has engaged in voluntary desegregation with little enthusiasm.

75

a. The general pattern in each decade

76

i. The mid-50s to mid-60s

77

This period was one of significant change in the Topeka school district. Most notably, the district expanded greatly with several city-imposed annexations at the end of the 1950s, the beginning of a spurt in population growth and shift to the newly annexed areas, and the school district's consequent opening of new schools in this outer white part of Topeka. As the white population moved outwards, the inner city population became increasingly heavily minority, and inner city schools were closed.

78

The mid-60s found the Topeka school system still heavily segregated. While the numeric polarization between schools had decreased to some extent systemwide, 64 and minority students were somewhat less concentrated, 65 the number of schools serving primarily white children had increased. Geographic polarization also increased, as a result of the building of so many primarily white schools on the outer edges of the district. Plaintiffs introduced evidence tending to show that the school district's use of portable classrooms and optional attendance zones served to maintain segregation by concentrating students of one race at certain schools. The school district's expert, Dr. Clark, conceded that his study of changes in attendance zone population because of changed attendance boundaries led him to conclude that one such boundary change might have had segregative effects not explainable solely by demographic shifts. 66

79

We have no doubt that during this period the school district in fact maintained and perhaps promoted a segregated system by current standards. Moreover, the system that existed after the wave of school openings and closings ended, i.e., the location of schools and the race of their students, formed the basis for the current elementary system. Therefore, while the school district should not be judged primarily by actions now twenty or more years in the past, neither can those actions be ignored.

80

ii. Mid-60s to Mid-70s

81

This period was one of quiescence in the school district. Enrollment in the Topeka school system peaked in 1969, substantially ending the need for new school buildings. Outer Topeka continued to grow in white population, particularly in the western part of the city. Minority population began to spread out of its highly concentrated central areas into eastern Topeka.

82

The only significant change in the school system at the end of this period was that the number of virtually all-white schools dropped. At the elementary level, 19 out of a total of 35 elementary schools were virtually one-race in 1966; 13 out of a total of 34 were virtually one-race in 1974. 67 The change at the secondary level was even less: from 6 out of 14 schools in 1966, to 5 out of 15 schools in 1974. This change took place primarily in schools on the outskirts of the southeastern part of Topeka, the area into which minorities were spreading. The school district's conduct during this period can thus be summarized as letting demographic forces work without interference or encouragement. This also means that schools already heavily minority were allowed to increase in minority population. 68 It is apparent that while Topeka did not promote a segregated school system during this period, it maintained the system then in effect notwithstanding its affirmative duty to eliminate segregated schools.

83

iii. Mid-70s to the present

84

In 1974, the HEW compliance action began the third phase of the Topeka school system since Brown I. At the elementary level, HEW cited unequal facilities for minority and white children as well as "student racial compositions not consonant with a unitary plan." Five elementary schools were specifically listed as having "substantially disproportionate minority student compositions clearly the result of a former dual pattern of operation." At the secondary level, HEW found that the junior high schools attended by most minority students were inferior in facilities to those schools attended largely by white students. In addition, the district's transfer plan was criticized. 69 The Board denied that the district was in noncompliance and obtained an injunction against further HEW administrative proceedings. Nevertheless, the Board agreed to take "administrative steps to assure a more perfect unitary school district." 70 It developed and implemented two plans largely approved by HEW.

85

These plans had some success. At the end of the reorganization, there were no 90 + % minority elementary schools, the attendance boundaries of two 90 + % white schools had been redrawn so that they were no longer one-race, and a third one-race white school had been closed. At the secondary level, two heavily minority and one primarily white junior high school had been closed, although the minority population of one other junior high school had risen significantly as a result of the reorganization. The school district's desegregation indices for elementary schools dropped significantly between 1975 and 1981. 71

86

Some of this decline, however, was the result of the movement of minorities into the western part of the school district. During the same six-year period, three additional elementary schools rose above the 10% minority level solely because of this demographic change. 72 This movement has continued. In 1985, two additional elementary schools were just barely no longer one-race for that reason. 73

87

The defendants' experts, Dr. Clark, see, e.g., rec., vol. XI, at 2338-39, and Dr. Armour, see, e.g., rec., vol. XIII, at 2579, the district court, see 671 F.Supp. at 1302-03, 1310 , and the dissent, see, e.g., dissent at 937, 938, 939, 941, all mistakenly believe that the changing demographics which resulted in unfavorable racial balances at various schools excuses the school board from achieving more acceptable racial balances. This view is clearly wrong where, as here, the school system is under an affirmative duty to dismantle a dual school system. "Until a unitary system is created, a school system is not absolved from this duty by reason of demographic changes." Vaughns v. Board of Educ., 758 F.2d at 988; see also, Lee v. Macon County Bd. of Educ., 616 F.2d 805, 809-10 (5th Cir.1980); cf. Tasby v. Wright, 713 F.2d at 91 n. 3, 93 (school districts' white population was 58.2% when lawsuit filed in 1970 and dropped to 29.53% by 1981; school district not yet unitary). It is only

88

"[w]hen state officials have not only made good-faith efforts to eliminate the vestiges of segregation, but have actually achieved a school system clean of every residue of past official discrimination, [that] immutable geographic factors and post-desegregation demographic changes that prevent the homogenation of all student bodies do not bar judicial recognition that the school system is unitary."

89

Ross v. Houston Indep. Sch. Dist., 699 F.2d at 225 . The school district's excuse for the racial imbalance which exists today in Topeka's schools is that shifting residential patterns caused the problem. That is an unacceptable excuse when the school district has never fully dismantled the effects of the prior de jure segregation.

90

Other changes that took place in Topeka from the mid-70s to the date of trial are as follows: elections to the Board were changed in 1976 to ensure that all parts of the city were fairly represented; the Board has now, and has had for some time, significant minority representation; in 1981, the district abandoned a slightly segregative majority-to-minority transfer policy for a transfer policy that is slightly desegregative; in 1984, while this trial was pending, a black superintendent was appointed; and, five days before the beginning of trial, the district adopted an explicit policy against discrimination in faculty and staff assignment. 74 These changes are deliberate and voluntary actions on the part of the school district, and constitute evidence that the district is, as it claims, now committed to desegregation. 75

91

There is no doubt that the Topeka school system has improved dramatically in the last ten years as far as desegregation is concerned. However, the system was equally undoubtedly in need of such improvement. The question now is whether these changes broke the causal link between the system that existed prior to them and the current system. Based on our review of the record, we have a definite and firm conviction that they did not. Approximately one quarter of Topeka's minority elementary students still attend three schools more than 50% minority, two of which have fallen into this category since at least 1966. One-race white schools have existed throughout the relevant period; many remain, and those that are no longer within the 90 + % white range are still heavily white schools. Most of the reorganization took place in the center of the school district; the schools on the periphery--the ones most clearly marked as minority or white schools--were largely unaffected. The distribution of faculty/staff has improved, but in 1985 there was still one school with no minority faculty/staff and eight schools with only one full- or part-time minority faculty/staff person, who may or may not be a teacher or other professional, and these schools are those same schools that have lacked minority faculty/staff since the 1960s. This is a system improved, but it is still the same system.

92

b. Individual Factors

93

Green v. County School Board, 391 U.S. 430, 435 , 88 S.Ct. 1689, 1693 , 20 L.Ed.2d 716 (1968), identified faculty, staff transportation, extracurricular affairs, and facilities as facets of school operations that must be considered in determining racial identifiability of schools. Swann added student attendance, school siting, opening and closing, and the drawing of attendance boundaries as factors to be weighed. Swann, 402 U.S. at 25-29 , 91 S.Ct. at 1280-83 . The district court made detailed findings as to most of these. We discuss below those factors that most clearly demonstrate the continuing causal link between past and present segregation.

94

i. Student assignment over time

95

We begin by considering the subsequent history of the schools in existence at the time of Brown II. No real pattern emerges. Seventeen elementary schools have more or less maintained the same racial identity for the last twenty years, while nine have changed. For the most part, the major shifts in student attendance mandated by the school district have had relatively little effect, although there has been some improvement in the last ten years. 76 Nevertheless, the record convinces us that the causal connection between the Topeka school system in 1955 and the same system in 1985 has not been broken. The school district has unquestionably had the opportunity to draw up and execute a scheme designed to lead to comprehensive desegregation. Moreover, Topeka does not have the kind of geographical barriers that have sometimes frustrated desegration plans. 77 Its minority population is spread over half the city, not concentrated in hard-to-reach enclaves. 78 It has altered the attendance boundaries of almost every school and closed many of them; it has in place a slightly desegregative transfer plan that potentially could be significant; and it has apparently faced little or no racially-motivated opposition from the community. 79 Nonetheless, there is, we repeat, no pattern to the changes over the years. There should have been one. We simply see no evidence that Topeka dedicated itself to desegregation prior to the reopening of this case. 80 Although former members of the Board testified that they did not vote for plans with segregative effects, they did not testify that they regularly took desegregation concerns into account. 81 The reaction of at least one Board member to the white flight of the 1950s and 1960s was "What could we do? We can't make people not move, no way." 82 After hearing the testimony of the Board members, the district court commented, "I am not interested in just any intentional acts that would hinder integration. I am also wondering if there is any action taken by this school board and past school boards to promote that integration, rather than hinder.... [A]re we going to get to this ...?" Rec., vol. XII, at 2534. This perceptive question focused on precisely what is missing from the school district's evidence. By no stretch of imagination can the school district's conduct be characterized as acting "with all deliberate speed" to "convert to a unitary system in which racial discrimination would be eliminated root and branch." 83

96

We do not ignore the changes made to the school system in the late 1970s. In our view, however, the effect of these changes was to make a system that was highly segregated as to student assignment into a system that is still segregated, although somewhat less so.ii. Faculty/staff assignment over time

97

Plaintiffs do not dispute the district court's finding that the hiring of minority faculty and staff is not now discriminatory. 671 F.Supp. at 1304 . They do challenge the court's conclusion with respect to the assignment of faculty and staff. They point out that the court in fact found that the assignment of faculty/staff is disproportionate, and they argue that this disproportion, and its consistency over time, is "one of the classic indices of a segregated school system." Brief for Plaintiffs-Appellants at 38. They criticize the district court for having unduly minimized the import of this evidence of segregation.

98

For example, while it is true that all of the district's schools have been within 10% of the average percentage minority faculty/staff at least once in the last ten years, 671 F.Supp. at 1305 , that statement is misleading considering that the percentage of minority faculty/staff in the system as a whole has ranged only from 9.9% to 16% in the last ten years at the elementary level and is currently about 11%. Thus, in 1975, when the average percentage was 9.9%, schools with no minority faculty or staff were still technically within 10% of the average. The 10% once-in-ten-years standard includes both McEachron, which had no minority faculty/staff for nine of the 13 years for which such statistics have been kept and in the last three years has had only one minority faculty/staff member out of approximately 25, and Lowman Hill, which has never had less than 15% and has once had more than 30% minority faculty/staff during the same time period. Furthermore, while it is true, as the district court noted, that the percentage of minority faculty/staff assignment has not invariably tracked the percentage of minority students, there is nevertheless a distinct pattern of correlation. McClure, for example, which has had more than 5% minority students only in 1979 and 1985, has had no minority faculty/staff since 1979, while Avondale East, which has generally had minority student percentages in the 30s and 40s has also generally had minority faculty/staff percentages in the 20s and 30s. Finally, because our data does not distinguish between faculty and staff, and because minority employees are more heavily represented as staff than as faculty, it is quite possible that the one minority faculty/staff person at McEachron, for instance, is a janitorial staff person or other service worker rather than a teacher or other professional role model.

99

The long-standing pattern of imbalances coupled with the tracking of student assignment percentages is strong evidence of a dual system because, as pointed out above, faculty/staff assignment is far less difficult to adjust than a factor such as student assignment. While the ratio of minority faculty/staff in schools with different levels of minority students has improved over the twelve years that records have been kept, that improvement alone does not alter the pattern. It merely makes it less dramatic.

100

There is one area in which the Topeka school system is clearly desegregated. Minorities are well-represented, indeed statistically over-represented, at the managerial level. Several principals are minorities, as is the current superintendent. This is both laudable in itself and an indication that whatever bias lingers in the assignment of faculty/staff is not deliberate. Nevertheless, although there has been improvement in this area, racial disparity does in fact linger because the school district has not consciously addressed the problem. 84 Inertia has thus led to the maintenance, albeit in less striking form, of a system that has kept white faculty at primarily white schools and minority faculty at predominantly minority schools.iii. Attendance boundaries and how (not) changed

101

Attendance boundaries determine the neighborhoods from which neighborhood schools draw their students. They can be used as an important tool in either imposing or undoing segregation under an ostensibly race-neutral neighborhood school policy. We do not disagree with the district court's finding that attendance boundaries have not been drawn in recent years with racial animus. In the past, however, the school district drew boundaries with significantly segregative effects, although for the most part it avoided obvious gerrymandering. Many of the schools affected by segregative boundary changes were subsequently closed, and other schools lost their status as predominantly minority schools bordered by schools with much lower percentages of minority students when minorities moved into the residential areas of the bordering schools.

102

A number of existing schools do have peculiar-looking attendance boundaries. Randolph has an arm jutting out to the east. Stout and Quinton Heights both include areas to the north and east some distance away from the school building. In the case of Randolph and Stout, the extensions have a desegregative effect. The reverse is true of Quinton Heights' current boundaries. See infra Part V B(2)(c)(v). As far as the record reflects, the current boundaries of Randolph and Stout are the only examples that Topeka has manipulated attendance boundaries in order to desegregate. Again, when it altered attendance boundaries the school board failed to use the opportunity in most instances to further desegregation, despite its affirmative duty to do so.

103

As the district court acknowledged, the most serious example of segregative attendance boundaries is Lowman Hill. Lowman Hill's attendance area is a more or less square area with the school located in the center. Plaintiffs point out that this area includes, and has included for the last 25 years, two areas of heavy minority population. These areas are now part of a general central Topeka minority population, but were relatively isolated when Lowman Hill's boundaries were first drawn to include them. Within the last ten years, three elementary schools bordering the Lowman Hill area, one with a minority student percentage significantly lower than Lowman Hill's, have closed. 85 The closings did not affect the minority student percentage at Lowman Hill. It remains a school with a heavy minority percentage bordered by schools with much lower minority percentages. It also remains the school whose attendance boundaries include the only significant group of minority population in the northwestern quarter of the school district. See infra Part VI B(2)(c)(vi).

104

The history of Lafayette is similar although not as extreme. The border between Lafayette and State Street, the school to Lafayette's north, has functioned as the boundary between the mostly white area served by State Street and the school to its north and the heavily minority area served by Lafayette and the schools to its south and southwest. Lafayette has long had twice the minority population of State Street; thus, since 1966, Lafayette's minority population has ranged from 52% to 69% while State Street's has ranged from 27% to 34%. 86 See infra Part VI B(2)(c)(iv).

105

While the boundaries of Loman Hill and Lafayette are consistent with a neighborhood school policy, as held by the district court, the original decisions to draw them to include the black population of the area had a segregative effect which the school district has never undone. The school district may not draw segregative attendance boundaries, maintain them for decades, and then take shelter behind the neutrality of its recent inaction. See Swann, 402 U.S. at 21 , 91 S.Ct. at 1278 .iv. Location of new schools

106

All of the elementary schools and all but one of the secondary schools opened by the school district since Brown II were built in the white outer part of the district. Robinson middle school, which serves the central part of Topeka, is the sole exception. Furthermore, many of these schools were built near to the edges of the district. Plaintiffs criticize both the location of these schools and the fact that they opened at all. With respect to the location, they argue that Topeka deliberately placed new schools as far as possible from minority residential areas in order to polarize the district into white outer and minority inner schools. With respect to the new schools themselves, they argue that Topeka should have taken advantage of the underutilized inner schools; that is, that Topeka should have voluntarily bused white children from outer Topeka to the inner city schools instead of putting up new buildings.

107

Almost all of the building in question took place in the late 1950s and early 1960s, before the Supreme Court made clear that prior de jure school districts must do more than operate a neutral system. Green, 391 U.S. 430 , 88 S.Ct. 1689 . Moreover, the city was annexing new territory during that time, a matter beyond the control of the school district, and it is not entirely unreasonable for the district to build schools "where the children are." Nevertheless, the erection of so many schools devoted to educating white children had a significant segregative effect on the district. See infra Part V B(2)(a)(i). While the building of new schools to accommodate an influx of white children arguably had a legitimate basis at the time, the school district did nothing to diminish the segregative effect of those schools, even after it became clear that school districts under an unfulfilled duty to desegregate must do more than operate a facially neutral neighborhood school system. As we have said, neighborhood school plans are permissible if they are effective in actually reducing segregation. School openings and locations are a crucial variable in such plans. Swann, 402 U.S. at 20-21 , 91 S.Ct. at 1278-79 . In Topeka, school openings under the neighborhood school plan in fact worked to increase segregation. A school district conscious of its constitutional duty would have attempted to counteract that effect. See Diaz v. San Jose Unified School District, 733 F.2d 660, 667-69 (9th Cir.1984) (en banc), cert. denied, 471 U.S. 1065 , 105 S.Ct. 2140 , 85 L.Ed.2d 497 (1985). Topeka did nothing.

108

v. School closings

109

In contrast to school openings, the majority of school closings took place in the central and middle parts of Topeka. Like school openings, this pattern was dictated largely by the population shift to the outer part of the school district. Plaintiffs do not contend that schools were closed for any other reason, or that the impact of the closings was borne primarily by minority students. They focus instead on the effect of school closings, primarily on the opportunity closings provided for more equitably distributing students to other schools. They contend that school closings of highly segregated schools were not desegregative in practice because the school district simply reassigned the students at those schools en masse to a nearby school which then took over the segregated status of the school closed. The evidence supports this contention for the 1950s and 1960s. Although most of the receiving schools remained schools with a majority of white students, plaintiffs argue that these reassignments served to identify the schools to which the school district would subsequently channel minority students. School closings in the 1970s and beyond had less segregated effects. In this decade, the effects of closings have been mixed. A few school closings were desegregative. These later closings have not completely undone the effect of the earlier closings, however. On the whole, most school closings in the 1970s cannot be said to be either segregative or desegregative.

110

In sum, although the hiring of minority faculty and staff became nondiscriminatory, and even included significant representation of minorities in management, the district nevertheless maintained racial imbalance in the assignment of faculty and staff. In addition, the location of new schools intensified the system's dual nature. The drawing of attendance boundaries and other means of reassigning students were rarely used to desegregate. The closing of schools is the most significant desegregative device Topeka utilized. Even here, it is only in a few cases that a closing can unqualifiedly be characterized as desegregative. As we stated earlier, Topeka notably failed to focus its efforts on the complete eradication of the effects of prior segregation.

111

c. Individual schools

112

The dissent spends a great deal of time attacking our analyses of individual schools. The main point of that attack is that the increasing minority percentages for these schools resulted from demographics, not from school board actions. As we have previously stated, however, a school district is not absolved by demographics from its affirmative duty to desegregate before it achieves unitariness. See supra at 876-77.

113

Plaintiffs describe the history of the school district as one of targeting certain schools as minority. According to plaintiffs, while the identity of those schools shifts as population moves, the district as a whole is always polarized into schools with clear racial identities. We therefore consider what the district did and did not do with respect to individual schools.

114

i. Belvoir elementary school

115

Belvoir is and has been since the 1960s a school with one of the highest minority populations in the district. The school was annexed in the late 1950s and lies on the eastern edge of the current district boundary. Two federal housing projects were built within its attendance area in 1963 and 1965. Since 1966, its student population has never been less than 50% minority. 87 It is located in an area of minority population that was bordered by white populations to the north and south and a minority population to the west when the school was annexed. The bordering areas are now all areas with substantial minority populations.

116

Belvoir's boundaries were once altered to take in part of the attendance areas of a school that was closed. That closing did have a modest desegregative effect at Belvoir, but it did not change Belvoir's status as the school with the highest minority percentage in the system. Although it is no longer surrounded by schools with markedly lower minority percentages, it remains an east-side minority school as opposed to the west-side white schools. It cannot be said that the neighborhood school plan has been effective in desegregating Belvoir.

117

ii. Hudson elementary school

118

The school district built Hudson in 1963 in newly annexed territory. It is on the southeastern edge of the district and opened as a primarily white school. While the passage of time has dissipated Hudson's identity as a white school, this change is due solely to the spread of minorities into its attendance area, not to any action by the school district. The school was 46.55% minority in 1985-76. Rec., ex. vol. IV at 171.

119

iii. Highland Park North elementary school

120

Highland Park North was annexed to the school district in the late 1950s. Its percentage of minority students has risen significantly over the years: 21.6% in 1966, 42.1% in 1975, and 57.9% in 1985. This rise was paralleled by a shift in the surrounding residential population from primarily white to heavily minority. This shift is characteristic of the eastern part of the city, where Highland Park North is located. The only significant action the school district took with respect to Highland Park North was to assign it Parkdale students when that school closed. This reassignment increased Highland Park North's minority percentage at a time when it was already high.iv. Lafayette elementary school

121

Lafayette was a white school in the Topeka school system at the time of Brown I. It was 13.7% black at the end of the four-step plan in 1956. Federally subsidized housing projects were built in Lafayette's area in 1961 and 1962. By 1966, the school was 54.5% minority (26.1% black). The school was then a transition school between Parkdale elementary school to the southwest, with 85% minority students, and Sumner, State Street, and Rice elementary schools to the north and east, with 12.3%, 27.5% and 3% minority students, respectively. Belvoir, to the south, had approximately the same percentage of minority students. Lafayette has remained 55-65% minority (25-50% black). In 1985, Lafayette was 56.8% minority (41.4% black). It remains a transition school between schools with higher minority percentages to the south and lower percentages to the north and west.

122

The closing of three schools affected Lafayette's boundaries. We have insufficient information to evaluate one closing, in the 1960s, and the other two closings had negligible effects on Lafayette's minority percentages. Under its neighborhood school plan, the school district simply maintained Lafayette as a school with disproportionate minority percentages.

123

v. Quinton Heights elementary school

124

Quinton Heights was a white school at the central southern part of the school district in the 1950s. At the end of the four-step desegregation plan it was 7.3% black. In 1959, Pierce, an annexed black school, and in 1964, Van Buren, a formerly all-white school, were closed and some of their students sent to Quinton Heights. Quinton Heights' attendance boundary was extended to the north as a result. 88 By 1966, its minority student percentage was 36.4%. It was bordered by heavily minority Monroe elementary school to the northeast and otherwise by primarily white schools, including schools to the south annexed in the late 1950s.

125

Plaintiffs characterize the reassignments in the 1960s as part of a process of focusing Quinton Heights as a school for black students. In 1966, Quinton Heights' minority student percentage was seventh highest out of thirty-five elementary schools, and its minority population bordered two schools with much lower minority percentages (Central Park, with 15.5%, and Polk, with 11.5%). Indeed, on the maps available to us, it is quite noticeable that Polk's boundaries in 1970 correspond closely to a patch of white population surrounded by minority population assigned to other schools, including Quinton Heights. 89

126

Two adjacent schools were closed during the 1970s. Each time, Quinton Heights' boundary was extended northwards. It is thus clear that Quinton Heights' current boundaries are the result of continued manipulation by the school district. They extend far into minority areas to the north and east of the school building and cross many natural barriers. 90 Quinton Heights is a "neighborhood" school only in the sense that some of its students do live in the immediate area of the school building. Most do not. Quinton Heights is entirely the product of the school district's actions; as such, the district may not disclaim responsibility for the makeup of the students who attend it.

127

vi. Lowman Hill elementary school

128

Lowman Hill was a white school in the pre-Brown Topeka school system. It had 17.4% black students at the end of the four-step plan in 1956. During the next decade a number of small adjustments were made to optional attendance zones around the school. Plaintiffs describe these adjustments as a process of drawing Lowman Hill's boundaries to include as many black and as few white students as possible. In 1959, an all-black school, Buchanan, was closed and its students sent to Lowman Hill. By 1966, Lowman Hill was 49.6% minority. The minority percentage at the five surrounding schools ranged from .2% to 15.6%. It is noticeable on the maps in the record that in 1970 Lowman Hill's boundaries included the only two significant areas of minority population in that part of Topeka. 91

129

Lowman Hill's minority student percentage has ranged in the 40s since that time, dipping briefly into the high 30s in the early 1980s. It was not affected in any significant way by the reassignment of students due to the closing of neighboring Clay elementary school in 1975 and Polk in 1979; while its boundaries expanded somewhat, the student population it acquired was apparently of the same makeup as its existing population. Thus, the history of Lowman Hill is that the boundaries drawn in the 1950s and 1960s largely remain, as do their effects. Lowman Hill still has a significantly higher minority student percentage than its neighbors, although the disparity between them is less (in 1985, Lowman Hill was 41.9% minority while its four neighbors ranged from 7.7% to 31.5%). The school appears to have been designed and maintained as a school with a concentration of minority students. At best, it has been neglected in recent decades. See infra Part V B(2)(b)(iii).

130

vii. Predominantly white schools

131

Eight elementary schools were at time of trial and have been during the course of this litigation primarily white schools. 92 Even in 1985, only three of these schools crossed the 10% minimum that the school district's expert proposed, and did so only just barely. 93 The schools are in or near the western part of the district. Similarly, at the time of trial two middle schools and one high school--one-third of the secondary school system--were, and had been since they opened, primarily white schools. They too are in the western part of Topeka.

132

Plaintiffs focus on Topeka West High School as the quintessential example of deliberate channeling of white students to schools in the western part of the school district. The school was opened in 1961 six blocks from the western edge of the school district, the part of the district most distant from centers of minority population. Consequently, it was then and remains now a school with more than 90% white students, while the percentage of minority students at the other two high schools has been higher than average. Little evidence was introduced on the other white schools that has not already been discussed elsewhere. See infra Part V B(2)(b)(iv). To summarize, these schools were either annexed or built by the school district in the late 1950s and early 1960s. They opened as white schools with white faculty/staff and have largely remained so. The school district offered no evidence that it had ever attempted to eliminate these schools' identity as schools for white children.

133

3. Maximum Practicable Desegregation in Topeka

134

We look at last away from what has been done and what should have been done to what can still be done. The feasibility of further measures was not a focus of the case, and there was little evidence on the question. The district court explicitly found that "[a]t any time, more could have been done to achieve racial balance in the schools." Other courts that have found school systems to be unitary have specifically found that additional desegregation was impracticable. 94 Similarly, courts have refused to find school systems unitary where greater integration is achievable. 95

135

It is apparent from this record that further desegregation in Topeka is not constrained by geographic obstacles as in some other cities. 96 Furthermore, out of the panoply of desegregation tools that have been developed, Topeka at present apparently uses only one: its minimally effective majority-to-minority transfer plan. We have no reason to think that Topeka has exhausted the repertoire available for desegregating schools. For example, it has failed to try magnet schools or to aggressively encourage voluntary transfers to improve racial balance. 97

136

Indeed, there is every reason to believe that further desegregation in Topeka is feasible. The present commitment of the school board and district administration, the already widespread distribution of minorities, and the expected continued movement of minorities into western Topeka should make the course of further desegregation relatively smooth.

137

It was suggested at trial that further desegregation is, in effect, not worth the trouble. Under questioning from counsel for the State Board of Education, plaintiffs' expert Foster admitted that in the 1985 school year the movement of only 265 elementary students, or 3% of all elementary students, and 77 secondary students, or 1.2% of all secondary students, would have been sufficient to bring all of Topeka's schools into plaintiffs' 15 + /% range. Dr. Foster pointed out that this figure was arrived at by simply removing students from schools outside the 15 + /% range, without analyzing where they would go or which students would take their place. The actual movement of students would thus be more complex and burdensome than the numbers suggest. Dr. Foster also pointed out that such an approach would move schools now just beyond the 15% range to just within it, an improvement he did not find greatly desegregative as it would preserve the existence of schools differing by 30% in their minority percentage and thus still marked as minority or white schools. 98 A similar analysis was performed with respect to faculty/staff. 99

138

The exercise above is illuminating in a number of respects. First, it indicates again that the desegregation plan which must be developed may not be too burdensome, a circumstance for which all can be thankful. Second, it reminds us of the dangers of focusing on numbers alone. Although numbers are usually the focus of desegregation plans, racial balance in itself is not the goal. The goal is to wipe out the effects of prior segregation. Setting target ranges is one means to that goal. It is clearly not the only one. Furthermore, as we have emphasized, schools are not racially identifiable by student and faculty assignment alone.

139

The lack of evidence or any attempt to argue that further desegregation is impracticable is perhaps the largest flaw in the school district's case. When the law requires the maximum desegregation reasonably feasible, and evidence suggests that more can be done, unitariness must await the implementation of those further steps. When it can be said that Topeka can do no more to eradicate the effects of past segregation and segregative acts, the Topeka school system may be declared legally unitary.

C. Conclusion on Unitariness

140

After reviewing the record, we have concluded that there is a current condition of segregation in Topeka. Contrary to the district court, we are convinced that this condition is causally connected to the prior de jure system of segregation. This causal connection for the most part does not stem from active promotion of segregation. Topeka has generally heeded the prohibition against this form of discrimination.

141

Our basic disagreement with the district court is centered around the fact that the duty to desegregate requires more. What Topeka did not do is actively strive to dismantle the system that existed. It opened and closed schools with little or no thought given to the effect of such actions on segregation, and observed the segregative or desegregative effects of such actions with indifference. Even those school board decisions that had some desegregative effect were not carried out in such a manner as to disestablish the dual system. For example, rather than integrate the former de jure black schools, Topeka gradually closed them. Their students were then reassigned virtually en masse to other schools, which then took on the same minority-school identity.

142

The shifting distribution of Topekans throughout the city sometimes hindered, sometimes aided, the cause of desegregation, but the school district sought neither to reduce the impact of the former nor to encourage the effects of the latter. It simply administered the system, with due regard for economic efficiency and the quality of education in the district, but without a commitment to undoing the segregated structure of that education. Consequently, it permitted Topeka's schools to fall into three categories: schools that are now and always have been white, schools that are now and long have been heavily minority, and others. As we have noted, the mere existence of racially identifiable schools does not violate the Constitution. Where prior de jure segregation exists, however, we are convinced that permitting white schools and minority schools to remain racially identifiable as such without significant efforts to the contrary is in effect to permit the continuation of a dual system of education. Based on the evidence set out above, we have a definite and firm conviction that the district court erred when it found the Topeka school system to be unitary. Cf. Pitts v. Freeman, 755 F.2d 1423 (11th Cir.1985); Diaz, 733 F.2d 660 ; Adams v. United States, 620 F.2d 1277 (8th Cir.1980) (en banc); Brinkman v. Gilligan, 83 F.2d 243 (6th Cir.1978), aff'd sub nom. Dayton Board of Education v. Brinkman, 443 U.S. 526 , 99 S.Ct. 2971 , 61 L.Ed.2d 720 (1979).

VI.

TITLE VI

143

Plaintiffs argue that the school district violated both section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and 34 C.F.R. § 100.3 (b). Section 601 forbids programs and activities receiving federal funds from discriminating on the basis of race, among other factors, 100 and 34 C.F.R. § 100 contains regulations implementing Title VI. The Topeka school system receives federal funds.

144

The Supreme Court held in Regents of the University of California v. Bakke, 438 U.S. 265 , 98 S.Ct. 2733 , 57 L.Ed.2d 750 (1978), that discrimination under Title VI is to be measured by the constitutional standard of the Equal Protection Clause. Id. at 284-87 , 98 S.Ct. at 2745-47 . Because we have concluded that Topeka's school system is not unitary under constitutional standards, we necessarily reverse the district court's holding that the school district has not violated Title VI.

VII.

STATE DEFENDANTS

145

The state of Kansas intervened as a defendant in Brown I to defend the constitutionality of the Kansas law permitting segregation. It was not again actively involved in the litigation of the case until May 1980, when the Governor and members of the State Board of Education were joined as defendants for the purpose of granting injunctive relief. 101 The district court granted summary judgment before trial for the Governor on both the constitutional and Title VI claims. After trial, it held that the State Board of Education was not responsible for the racial conditions in the Topeka school district. We affirm both of these rulings.

146

The supreme executive power of the state of Kansas is vested in its Governor, who "shall be responsible for the enforcement of the laws of this state." Kan. Const. art. I, § 3. One of the Governor's powers is that of reorganizing state executive agencies. "[C]onstitutionally delegated functions of state officers and state boards" are exempt from this reorganization power. Id. § 6(a). The State Board of Education is such an exempt state board. Id. art. 6, § 2; State ex rel. Miller v. Board of Education, 212 Kan. 482 , 511 P.2d 705, 709 (1973). Because the State Board of Education is the Kansas organ of government responsible for education, these provisions limit the Governor's executive power over education to that embodied in the power to enforce the laws of Kansas. Plaintiffs have not suggested that any Kansas law is now implicated in this litigation. The Governor is not vested by the provisions cited above with the power to enforce federal law, and plaintiffs have not shown any other source of such power. The district court was correct in concluding that the Governor is not able, under state law, to comply with such injunctive relief as may be ordered in this case. It was therefore proper to dismiss him from the case.

147

The correct disposition of the case against the members of the State Board of Education is more difficult to resolve. Kansas, like many other states, assigns the primary responsibility for the day-to-day management of public schools to local school authorities. See Kan. Const. art. 6, § 5. At the time of Brown I, the Kansas Constitution provided for a Superintendent of Public Instruction with limited authority. In particular, this officer did not have the authority to exercise general supervision of the public schools. Miller, 511 P.2d at 708 . Apparently, the only method used by the state to encourage segregation was the permission granted by the law struck down in Brown I for segregation below the high school level. The Kansas legislature promptly repealed this statute in its next full session after Brown I, and has since enacted civil and criminal laws against racial discrimination. See Kan.Stat.Ann. §§ 21-4003, and §§ 44-1001 et. seq. This history is in contrast to the actions of other states that have been held liable for promoting segregation. 102 Moreover, the state was never held expressly liable for the actual segregation in Topeka's schools.

148

It is not necessary for us to decide whether requiring more of the state at this point would be consistent with the principle that a remedy may be no broader than the scope of the violation found, because plaintiffs have not shown that the State Board of Education has the power to act as they would have it act. The Kansas Constitution provides both for the State Board of Education and for locally elected school boards. The State Board is given the power of "general supervision" of the local boards. Kan. Const. art. 6, §§ 2, 5. The Kansas Supreme Court has defined this power as "something more than to advise but something less than to control." Miller, 511 P.2d at 713 . Among the powers of the State Board is accreditation of schools. Plaintiffs argue that the State Board could have withheld accreditation of segregated schools, citing evidence that the Board is empowered to withhold accreditation on this basis. 103 The evidence refers, however, to hypothetical situations such as an official policy of not hiring black teachers or complete segregation of students. This does not establish that the State Board had the power to deny accreditation under the facts of this case. In addition, exhibits in the record show that the State Board was aware that there was actual segregation in some Kansas cities, and drew up a number of proposals to provide advisory assistance to these cities in desegregating. 104 These proposals are consistent with the State Board's argument that its role is primarily advisory in the area of desegregation.

149

Kansas statutes authorize local school boards to appoint employees to serve at the board's pleasure, set attendance boundaries, open and close schools, and adopt all necessary rules and regulations. Kan.Stat.Ann. §§ 72-8202e, 72-8212, 72-8213. These tools are the primary means of desegregating. No evidence suggests that the State Board exercises control over these tools. Plaintiffs argue that after Brown I some agency of the state had a duty to ensure that desegregation occurred. We are not persuaded that any authority other than the Topeka school district had then or has now the power to desegregate Topeka's schools.

VIII.

CONCLUSION

150

In concluding, we begin by stressing what we do not have in Topeka. We do not have a school system or a community actively resisting desegregation. Nor, on our record, has Topeka ever interposed the kind of obstacles to desegregation found in other cities. In recent times, the school district has won national recognition for its innovative work on its curriculum and has been honored with various awards for the excellence of its schools. In short, the Topeka school district is actively engaged in improving the education of its students.

151

This active engagement has largely been directed at concerns other than desegregation, however. Once the four-step plan approved by the district court in the 1950s was implemented, Topeka did not until very recent times, on our record, give serious consideration to the question of whether the duty imposed by Brown II had been fulfilled, save under the urging of HEW. Although that urging led to distinct improvements, for the most part the Topeka school district has exercised a form of benign neglect. The duty imposed by the Constitution, and articulated in numerous cases by the highest court in this land, requires more.

152

We reverse the finding of the district court that the Topeka school system is legally unitary. We remand the case to the district court for the formation of an appropriate remedy.

153

BALDOCK, Circuit Judge, dissenting.

154

It is not by accident that the court begins its opinion in the liability phase of this case with a quote from the plaintiffs' expert, Mr. William Lamson. 1 For in deciding that the U.S.D. 501 school board operates a dual school system with respect to student assignment, the court has relied heavily on the plaintiffs' theory of the case as supported by the testimony of Mr. Lamson. In deciding that the board operates a dual system with respect to faculty assignment, the court has adopted the plaintiffs' theory in large part, but impermissibly has made its own factual findings after an ad hoc evaluation of the evidence. See, e.g., Court's Opinion at 870 ("We do not adopt plaintiffs' standard, but instead evaluate the data on its face.").

155

In this case, the plaintiffs contended that the school board operated a dual school system as evidenced by: 1) racial identifiability in student and faculty/staff assignment, 2) inferior facilities, equipment, curriculum and instruction at schools with higher black enrollments, 3) lower minority test scores, and 4) survey attitudes indicating that some schools were perceived as white schools and others as minority schools. See generally rec. vol. I, doc. 242 (amended complaint). 2 On the other hand, the defendants contended that the plaintiffs' measures of "racial identifiability" alone, given the historically small percentage of minority students and faculty/staff did not indicate a current condition of intentional segregation based upon either 1) present discrimination or 2) a failure to eliminate the vestiges of past state-imposed segregation. Defendants suggested that de facto and racially neutral considerations, rather than de jure segregation, explained the assignment of students and faculty/staff. 3 Defendants also contended that recent school boards were committed to pursuing racial balance in student and faculty/staff assignment, and equal educational opportunity. Finally, defendants relied upon the implementation of two desegregation plans after Brown v. Board of Educ. (Brown I), 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954), and explained other steps taken to achieve and maintain a unitary system. The district court found in favor of the defendants on all issues and declared the system unitary. Brown v. Board of Educ., 671 F.Supp. 1290 (D.Kan.1987). On appeal, plaintiffs challenge the district court's judgment concerning student and faculty/staff assignment.

156

If appellate courts were empowered to make findings of fact, perchance the approach of this court on the issues of student and faculty/staff assignment could be justified. But for reasons which the Supreme Court has made clear, we must accept the factual findings of the district court unless they are clearly erroneous. Fed.R.Civ.P. 52(a); Anderson v. City of Bessemer City, 470 U.S. 564, 573-76 , 105 S.Ct. 1504, 1511-13 , 84 L.Ed.2d 518 (1985); see also Alexander v. Youngstown Bd. of Educ., 675 F.2d 787 , 792-93 (6th Cir.1982). Although this court acknowledges that the district court's finding of unitariness must be upheld unless clearly erroneous, Court's Opinion at 859, the court has failed to give effect to this principle. Instead, this court has duplicated "the role of the district court" and has impermissibly engaged in "an exercise in appellate factfinding." See Jenkins v. Missouri, 807 F.2d 657, 667 (8th Cir.1986) (en banc). This is apparent throughout the court's opinion, but is especially salient in the court's characterization of what really occurred in Topeka during each decade subsequent to Brown I, a characterization which totally ignores the district court's findings and forgets that we do not try cases at the court of appeals. See Court's Opinion at 874-877. The same evidence that the district court found wanting this court accepts. This court is "engaging in an original evaluation of the voluminous and ofttimes contradictory record seeking an ultimate conclusion more satisfactory than that reached by the district court." Jenkins, 807 F.2d at 668 .

157

The court claims that the district court erred because it misunderstood the burden of proof in this desegregation case. Court's Opinion at 854, 866-67. If that is true, why does the court not remand the case to thedistrict court for appropriate findings in accordance with the correct presumption and burden-shifting principles, given that this is very much a record case? See infra note 6; Vaughns v. Board of Educ., 758 F.2d 983 , 992 (4th Cir.1985) (court remanded for new findings in light of correct legal principles). Instead, the court makes its own factual findings and remands the case for an appropriate remedy.

158

Moreover, I do not agree with this court that the district court "failed 'to apply the appropriate presumption and burden-shifting principles of law.' " Court's Opinion at 867 (quoting Brinkman v. Gilligan, 583 F.2d 243, 251 (6th Cir.1978), aff'd, Dayton Board of Educ. v. Brinkman (Dayton II), 443 U.S. 526 , 99 S.Ct. 2971 , 61 L.Ed.2d 720 (1979)). This court compares the district court's action with that of the errant district court in Dayton II. The comparison misses the mark primarily because, as this court points out, Dayton II, like most of "[t]he Supreme Court desegregation cases[,] involved school systems in which the degree of segregation was sufficiently great that the parties did not seriously dispute on appeal that the plaintiffs had satisfied their burden on" ["the existence of a current condition of segregation."]. Court's Opinion at 859-60 n. 17, 859-60. While the "Dayton public schools [were] 'highly segregated by race'[.]" 4 Court's Opinion at 859 n. 17 (quoting Dayton II, 443 U.S. at 529, 99 S.Ct. at 2974), this is not so in Topeka. Here, there exists a genuine issue of fact as to whether there is even a current condition of segregation, particularly in the absence of any one-race minority or virtually one-race minority schools in this district. To be sure, there are eight 90% + white schools (ranging from 6.23% to 9.43% minority); however, those schools have steadily increased in minority enrollment over the years, and this is a system in which 31 out of 34 schools are majority white in student assignment. See infra note 18. Of the three schools that are majority-minority in student assignment, the greatest concentration is 61.86% minority. Id. This court's overinclusive approach to racial identifiability leads it to an incorrect finding that there is a current condition of segregation in Topeka.

159

The court begins by saying that, in a former de jure system, a school is racially identifiable and part of a current condition of segregation if it deviates, plus or minus (±) 15% or 20% or some other arbitrary amount, from a system-wide average of minority composition. See Court's Opinion at 869-70, 872-73 n. 59, 873; but see Price v. Denison Indep. School Dist., 694 F.2d 334, 360-64 (5th Cir.1982) (statistical racial identifiability not necessarily indicative of liability). Numbers reflecting the racial composition of student and faculty/staff assignment within a school system are absolutely critical in both the liability and the remedial phase of a school desegregation case. However, statistical measures of racial identifiability are measures of racial balance, a valid sociological objective, but not a constitutional command with respect to student assignment. Nevertheless, this court determines that once a plaintiff has shown statistical racial identifiability in a former de jure system, the plaintiff has established a current condition of segregation. Court's Opinion at 859-60, 869-70.

160

If a school is not racially identifiable as to student assignment by statistical measures, that certainly does not suggest an absence of segregation to this court. Rather one must look to a "broadly defined," Court's Opinion at 859-60, concept of racial identifiability which considers "demography, geography and the individual history of particular schools and areas of the city," in an effort to find liability. Id. at 861. Although the court acknowleges that one-race schools may evolve from "modern urban demography and geography," id. at 860 n. 18, and that "the mere existence of racially identifiable schools does not violate the Constitution," id. at 886, it completely fails to incorporate these observations in its analysis of this system. Nor does it consider other statistical measures relied upon by the district court which support a finding of no current condition of segregation and compliance with the affirmative duty to dismantle the dual system. See id. at 869-72, 876 n. 71. What the court has done is to apply an absolute presumption against the Topeka schools from the outset because of de jure status in 1954. Even if the presumption applies, the court has given no weight to the substantial evidence concerning de facto influences on racial composition in those schools. Although the court ratifies its conclusion concerning a current condition of segregation with descriptive references to geography, residential population and history, there is no attempt to consider causation in light of the substantial demographic testimony offered by defendants. Id. at 873, 876-77.

161

The district court implicitly recognized, Brown, 671 F.Supp. at 1295 , "that once a court has found an unlawful dual school system," School Bd. v. Baliles, 829 F.2d 1308 , 1311 (4th Cir.1987), the plaintiffs are " 'entitled to the presumption that current disparities are causally related to prior segregation, and the burden of proving otherwise rests on the defendants.' " See Court's Opinion at 863 (quoting Baliles, 829 F.2d at 1311 ); see also Dayton II, 443 U.S. at 537, 99 S.Ct. at 2979 (1979); Keyes v. School Dist. No. 1, 413 U.S. 189, 210-11 , 93 S.Ct. 2686, 2698-99 , 37 L.Ed.2d 548 (1973); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 25-26 , 91 S.Ct. 1267, 1280-81 , 28 L.Ed.2d 554 (1971) (discussing remedy once a violation is established). If the system has achieved unitariness, the presumption ends. Baliles, 829 F.2d at 1311 ; Riddick v. School Bd., 784 F.2d 521 , 543 (4th Cir.1986).

162

In a former de jure system, plaintiffs may establish the prima facie case by proving that there is a current condition of intentional segregation, that the de jure system or its vestiges remain or were reestablished in part of the school system. Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 464, 467 , 99 S.Ct. 2941, 2950, 2951 , 61 L.Ed.2d 666 (1979); Keyes, 413 U.S. at 200, 210 , 93 S.Ct. at 2693, 2698 . Even an isolated condition of current segregation, resulting from past or present segregative acts, would violate the affirmative duty to eliminate the dual system and its vestiges and to convert to a unitary system in which racial discrimination is eradicated. Dayton II, 443 U.S. at 537, 99 S.Ct. at 2979; Columbus, 443 U.S. at 459 , 99 S.Ct. at 2948 ; Swann, 402 U.S. at 15 , 91 S.Ct. at 1275 ; see also L. Tribe, American Constitutional Law 1498-1500 (2d ed. 1988) (discussing Supreme Court school desegregation cases).

163

That critical finding shifts the burden of proof to the defendants because it provides "a sufficient basis for an inferential finding of system-wide discriminatory intent" which in turn will be applied to explain "racial separation in other parts of the school system." Columbus, 443 U.S. at 467-68 , 99 S.Ct. at 2951-52 . At that point, the defendants must come forward with "proof sufficient to support a finding that segregative intent was not among the factors that motivated their actions." Keyes, 413 U.S. at 210 , 93 S.Ct. at 2698 . If intent cannot be disproved, the defendants must show that their "past segregative acts did not create or contribute to the current segregated condition," in the other parts of the system. Id. at 211 , 93 S.Ct. at 2699 ; see Dayton II, 443 U.S. at 538, 99 S.Ct. at 2979 ("Board has a 'heavy burden' of showing that actions that increased or continued the effects of the dual system serve important and legitimate ends").

164

The district court correctly cited Keyes and Swann in its discussion concerning the burden of proof and noted that the factual justification in this case for the legal presumption was doubtful. 5 Brown, 671 F.Supp. at 1295 , 1295 n. 4 & 5. I take this to mean that the plaintiffs simply had not proven a current condition of segregation (a constitutional violation) in the Topeka schools which would warrant sustaining the presumption. But the district court went further when it focused on the defendants and held that, in the alternative and regardless of any presumptions in favor of the plaintiffs, the defendants had proven the existence of a unitary system. Id. Merely because the district court properly discussed an absence of discriminatory intent does not negate the fact that in this record 6 there is evidence tending to show that any past segregative acts of this school district are not responsible for schools currently which do not approach the system-wide minority average. See infra pt. VII, p. 935 (analyzing schools which court claims are racially identifiable and segregated). Indeed, this court at various points acknowledges an absence of evidence of segregative intent by current school officials. Court's Opinion at 868 ("we agree with the district court's findings that the current school administration is not presently acting with discriminatory intent"), see also id. at 880, 886; but see id. at 872, (concerning faculty/staff assignment in 1985-86, "it is difficult to posit a [racially] neutral explanation") ,879 & id. at 883 ("It is thus clear that Quinton Heights' current boundaries are the result of continued manipulation by the school district."). The district court also considered circumstantial evidence of past segregative intent manifesting itself in the current system, concerning the prima facie case and beyond. Of course, the district court had much quantitative and qualitative evidence to evaluate. Having performed its required task, it found that "the district's student and staff assignment criteria do not have the effect of discriminating against students because of their race." Brown, 671 F.Supp. at 1310 (denying relief based on Title VI regulation) (emphasis added). Because the record supports the district court's determination that there is not unlawful segregation in Topeka and that the system is unitary, albeit on conflicting evidence, I respectfully dissent.

165

In its opinion, the court dismisses my dissent as a product of misconstruing the principles of school desegregation law. Court's Opinion at 862-63, 867 n. 47, 868 n. 49, 869 n. 51. Apparently, the court views the affirmative duty to eliminate segregation and its vestiges as completely independent from, if not inconsistent with, the intent inquiry. To be sure, those statutory dual systems operating at the time of Brown I automatically assumed an affirmative duty to eliminate not only the dual system, but also the effects of that dual system on present school operations. Keyes, 413 U.S. at 200 , 93 S.Ct. at 2693 . However, the initial affirmative duty arises from the presence of intentional segregation whether once commanded by statute or practice.

166

Moreover, the intent inquiry is inclusive of whether a school board has acted affirmatively, not merely neutrally, to eliminate a dual system existing in 1954. A school board's proven failure to heed its affirmative duty and eliminate a dual system and its vestiges, whether that failure be by inaction or by conscious decision, is indicative of segregative intent and compounds the harm of an unconstitutional dual system. See Columbus, 443 U.S. at 461 , 99 S.Ct. at 2948 ("Whatever the Board's current purpose with respect to racially separate education might be, it knowingly continued its failure to eliminate the consequences of its past intentionally segregative policies."); see also Green v. County School Bd., 391 U.S. 430, 437-38 , 88 S.Ct. 1689, 1693-94 , 20 L.Ed.2d 716 (1968). In deciding whether a school system is unitary, the ultimate inquiry must be whether past or present segregative intent has been eliminated from the present school operations.

167

Thus, a current condition of purposeful separation may arise either from a failure to eliminate 1954 de jure segregation and its effects or by subsequent actions which are segregative in their own right. Stated another way, plaintiffs are entitled to a system-wide desegregation order upon a finding that there is current racial separation which is the result of segregative intent, past or current. Plaintiffs are not entitled to a system-wide desegregation order based upon proven de facto racial separation not attributable to the actions of the school board. Keyes, 413 U.S. at 208 , 93 S.Ct. at 2697 ("We emphasize that the differentiating factor between de jure segregation and so-called de facto segregation to which we referred in Swann is purpose or intent to segregate.") (emphasis in original). Thus, contrary to this court's reading of my dissent, I agree that school board action which has the effect of failing to disestablish the dual system violates the school board's affirmative duty. See Court's Opinion at 862 (quoting Pitts v. Freeman, 755 F.2d 1423, 1427 (11th Cir.1985)); Columbus, 443 U.S. at 449 , 99 S.Ct. at 2942 .

168

I must reject however, this court's contention that "[t]his is not a liability case in which plaintiffs must prove that the school board has committed unconstitutional acts; that was established in 1954." Court's Opinion at 862 (emphasis omitted). While this is not a case of initial liability, id. at 868, it is not a case like Swann, see Court's Opinion at 862, in which all parties agreed that the 1969 Charlotte-Mecklenburg school system was not unitary given the Supreme Court's 1968 Green decision, announced three years after the first desegregation plan implemented by that district in 1965. Swann, 402 U.S. at 7 , 91 S.Ct. at 1271 . In Swann, the issue was whether the district court was correct in selecting among alternative desegregation plans put forth by the parties. Id. at 11 , 91 S.Ct. at 1273. Contrary to this court's assertion, Court's Opinion at 862, 868 n. 49, ours is not now a remedy case. Upon the reopening of this case in 1979, some 24 years after the first court-approved desegregation plan, the district court's task was to determine whether liability for the prior de jure system remained. Unlike Swann, the parties in our case hotly contested this issue.

169

If the liability inquiry in this case was frozen as of 1954 as suggested by the court, id. at 862, we merely would decree a remedy based upon the failure of the school board to have absolute racial balance at every school and much of this court's opinion arguing that (1) there is a current condition of segregation, (2) the school board has failed to fulfill its affirmative duty, and (3) there is a link between present school operations and the prior de jure system, would be superfluous. The inquiry in this case is not so simple because two complex factual issues are involved. The first is whether current disparities in this case comprise a current condition of segregation given that there is not a single one-race minority or virtually one-race minority elementary, middle or high school, in this system. But if there is a current condition of segregation, the burden of proof would shift to the school board as discussed above. The next complex factual issue in the case then becomes whether the effects of any past intentional segregation have been eliminated. An "essential predicate" for a system-wide remedy in this case is that the "Board's purposefully discriminatory conduct and policies, had current, system-wide impact." Columbus, 443 U.S. at 466 n. 15, 99 S.Ct. at 2951 n. 15.

170

The court also claims that the defendants' experts, the district court and I have erred because we have considered the school board's proof that, having dismantled a dual school system, it is not liable for schools which do not approach the system-wide minority average in student assignment. See Court's Opinion at 876-77. Who could argue with the court's statement that demographic change does not excuse a school board's failure to comply with its affirmative duty to eliminate the effects of a dual system? Id. (relying on Vaughns, 758 F.2d at 988, and Lee v. Macon County Bd. of Educ., 616 F.2d 805, 809-10 (5th Cir.1980)). In both Vaughns and Lee, the appellate court was concerned with virtually one-race minority schools which had not lost their racial identities. Vaughns, 758 F.2d at 991; Lee, 616 F.2d at 808, 811 (5 one-race minority schools). The disagreement between the court's opinion and my dissent on this point is that I view the school board as having accomplished its affirmative duty and having eliminated the effects that may be charged to a once-dual system. All virtually one-race minority schools have been eliminated, and there are no schools on the threshold of virtually one-race minority status. In any event, the school board is allowed to prove that schools which do not approach the system-wide minority average are not the product of past or present segregative intent or, stated another way, the school board may prove that its recent and remote actions are not the cause of present racial imbalance. In Keyes, the Court recognized that school officials may defend by showing that current racial separation is not a product of past segregative actions. Keyes, 413 U.S. at 211 , 93 S.Ct. at 2698 . Although the passage of time does not make intentional segregative acts which occurred decades ago any less intentional, id. at 210-11 , 93 S.Ct. at 2698-99 , the effects of such action may well be attenuated, given the dynamic environment of a school system. The court's absolute refusal to consider this evidence is tantamount to imposing strict liability on the school board in the absence of perfect racial balance.I.

171

This action began when the original plaintiffs challenged Topeka's maintenance of a segregated system of schools for grades kindergarten through six (K-6). Brown v. Board of Educ., 98 F.Supp. 797 (D.Kan.1951), rev'd, 349 U.S. 294 , 75 S.Ct. 753 , 99 L.Ed. 1083 (1955). At the time, Topeka operated 22 elementary schools, 18 for white children and 4 for black children. Id. Many black children were bused a considerable distance to the 4 black schools. Id. at 798. The challenge involved both the contention that separate schools were inherently unequal and the contention that the physical facilities, curricula, faculty and student services of the black schools were inferior. Id. at 797-98. Circuit Judge Huxman, writing for a three-judge district court, adhered to precedent, Plessy v. Ferguson, 163 U.S. 537 , 16 S.Ct. 1138 , 41 L.Ed. 256 (1896), and held that separate but equal facilities were constitutional. Brown, 98 F.Supp. at 798-99 ; see generally In Memoriam, 474 F.2d preface at 13-14 (1973) (discussing judge's difficult decision). The district court entered as a finding of fact that the "physical facilities, the curricula, the courses of study, qualification of and quality of teachers, as well as other educational facilities in the two sets of schools are comparable." Brown, 98 F.Supp. at 798 . The judgment was appealed to the Supreme Court, with initial arguments during the 1952 Term.

172

During September 1953, and prior to the Supreme Court's opinion, the Topeka school board adopted a policy to terminate the maintenance of segregation in the elementary grades. Rec. ex. vol. II at 60. The board adopted the first step of a desegregation plan which terminated the white-only segregation at two elementary schools (Southwest & Randolph) and discontinued the board's supplied transportation to 15 black children in those districts. In January 1954, the board adopted the second step of the desegregation plan to become effective in September 1954. Rec. ex. vol. II at 61. The second step terminated the white-only segregation in 12 more elementary schools, eliminated transportation for black students in these 12 districts, and permitted black students to continue at their former schools, if desired. Id.

173

In May 1954, the historic decision of the Supreme Court reversed the three-judge district court. Brown I, 347 U.S. 483 , 74 S.Ct. 686 . The Court held that "the segregation of children in public schools solely on the basis of race" denied minority group children equal educational opportunities contrary to the fourteenth amendment. Id. at 493 , 74 S.Ct. at 691 . With respect to the Kansas case, the Court expressly found that the non-elementary grade levels of the public schools were "operated on a non-segregated basis." Id. at 486 n. 1, 74 S.Ct. at 687 n. 1. The Court did not alter the finding of the district court of substantial equality "with respect to buildings, transportation, curricula, and educational qualifications of teachers." Id. at 486 n. 1, 74 S.Ct. at 687 n. 1.

174

In February 1955, the Topeka board adopted the third step of the desegregation plan to become effective in September 1955. Rec. ex. vol. II at 63. The plan addressed the four black elementary schools (McKinley, Buchanan, Monroe and Washington). Under the third step, McKinley was closed, and Buchanan, Monroe and Washington were placed within the general framework of the elementary school attendance districts. Id. All elementary students affected were given the option of finishing elementary school in their present schools, with the exception of McKinley students. Children entering kindergarten in school year 1955-56 were given the option of attending the school they would have attended in 1954-55, had they been old enough.

175

Having decided the question of constitutional liability, the Court ordered further argument on a remedy and issued its next opinion concerning appropriate relief in May 1955. Brown v. Board of Educ. (Brown II), 349 U.S. 294 , 75 S.Ct. 753 , 99 L.Ed. 1083 (1955). The Court noted that "substantial progress" had been made in Kansas "from the transition to a system of public education freed of racial discrimination." Id. at 299 , 75 S.Ct. at 755 . Recognizing that full implementation of Brown I might "require solution of varied local problems" by school authorities, the Court remanded this case to the three-judge district court for consideration of whether the actions of school authorities constituted a good faith implementation of Brown I. Id. School authorities were to make a "prompt and reasonable start toward full compliance" with Brown I. Id. at 300 , 75 S.Ct. at 756 .

176

Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis.... They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system.

177

Id. at 300-01 , 75 S.Ct. at 756-57 . The district courts were to be guided by principles of equity and to retain jurisdiction during the transition period. Id. In June 1955, the Supreme Court mandate ordered the district court to take such actions "as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases." Id. at 301 , 75 S.Ct. at 757 .

178

On remand, the district court held a hearing on the formulation of a decree and judgment. In October 1955, the panel approved the plan already adopted and partially implemented by the Topeka board "as a good faith beginning to bring about complete desegregation." Brown v. Board of Educ., 139 F.Supp. 468, 470 (D.Kan.1955) (per curiam). The court characterized the plan as follows:

179

The central principle of the plan is that hereafter, except in exceptional circumstances, school children irrespective of race or color shall be required to attend the school in the district in which they reside and that color or race is no element of exceptional circumstances warranting a deviation from this basic principle.

180

Id. at 469 . The court noted that in several respects, which were minor and not discussed, the plan did not comply fully with the Supreme Court mandate. Id. One serious objection to the plan was that part which permitted kindergarten children to attend the school which they would have attended had they started school one year previously. But because that part was temporary and not part of the permanent plan, it did not defeat a finding of good faith.

181

At the hearing, the plaintiffs objected to certain schools, such as Buchanan, remaining all black. The district court rejected this as a defect in the plan, stating:

182

Desegregation does not mean that there must be intermingling of the races in all school districts. It means only that they may not be prevented from intermingling or going to school because of race or color.

183

If it is a fact, as we understand it is, with respect to Buchanan School that the district is inhabited entirely by colored students, no violation of any constitutional right results because they are compelled to attend the school in the district in which they live.

184

Id. at 470 . In 1973, the Supreme Court indicated that this limited interpretation of Brown was rejected in 1968 by its decision in Green, 391 U.S. at 437-38 , 88 S.Ct. at 1693-94 . Keyes, 413 U.S. at 200 -01 n. 11, 93 S.Ct. at 2693 -94 n. 11. Meanwhile, the district court retained jurisdiction of this case for the purpose of entering a final decree pending full compliance with the Supreme Court's mandate to desegregate. The court's order approving the plan was not appealed.

185

In December 1956, the Topeka board considered the fourth step of its plan to comply with the Supreme Court's mandate in Brown II as ordered by the district court. Rec. ex. vol. IV at 120. This final step of the plan was to become effective in September 1956, and eliminated the kindergarten option provision criticized by the district court. Rec. ex. vol. II at 66. The plan also required all elementary students moving into districts, not designated as optional districts between two or more elementary schools, to attend the elementary school in the requisite district, subject only to traditional exceptions. Id. at 66. Two board members opposed the plan's optional features as prolonging the time before complete integration. Id. at 67. Concern was expressed about the future of the teachers at the de jure black elementary schools. Id. Notwithstanding, the superintendent, under questioning from the board, indicated that no additional steps were contemplated and that the adoption of the plan brought Topeka "into full compliance with the law." Id.

186

The fourth step of the plan was opposed by the president of the NAACP, Mr. Burnette. Mr. Burnette told the board that the NAACP only took legal action in this case as a "last resort." Rec. ex. vol. IV at 120. He opposed the plan because "it would take seven long years to terminate racial segregation" and no steps had been taken to integrate black teachers. Id. at 120-21. The fourth step of the plan was approved in January 1956. Id. at 121. The plan had been implemented fully as of the 1960-61 school year, and by 1961-62, all elementary students, who had been permitted to continue at the school which they attended prior to implementation of step four of the plan, had completed their elementary education.

187

Two observations should be made at this point. First, the school board hardly can be faulted for implementing its plan to desegregate the elementary schools. In its revised opinion, the court has downgraded the school board's initial desegregation efforts from "a remarkably enlightened beginning in the mid-1950's," see Brown v. Board of Educ., No. 87-1668, slip op. at 42 (filed Jul. 2, 1989 & withdrawn Jul. 19, 1989), to "a 'good faith' beginning", Court's Opinion at 874 (quoting Brown, 139 F.Supp. at 470 ). This court then characterizes "[t]he mid-50s to mid-60s," as "no doubt" segregative under modern authority. Court's Opinion at 874-75. The board had the approval of the district court and federal authority well into the 1970's, including that of this circuit, which echoed the district court's conclusion that Brown I and Brown II, while prohibiting segregation, did not require concern with integrative racial balancing in neighborhood schools. 7 See Keyes v. School Dist. No. 1, 445 F.2d 990, 1005 (10th Cir.1971) ("We never construed Brown to prohibit racially imbalanced schools provided they are established and maintained on racially neutral criteria, and neither have other circuits considering the issue."), modified, 413 U.S. 189 , 93 S.Ct. 2686 , 37 L.Ed.2d 548 (1973); Board of Educ. v. Dowell, 375 F.2d 158 , 166 (10th Cir.) ("It is still the rule in this Circuit and elsewhere that neighborhood school attendance policies, when impartially maintained and administered, do not violate any fundamental Constitutional principles or deprive certain classes of individuals of their Constitutional rights."), cert. denied, 387 U.S. 931 , 87 S.Ct. 2054 , 18 L.Ed.2d 993 (1967); Downs v. Board of Educ., 336 F.2d 988 , 995-96, 998 (10th Cir.1964) (neighborhood schools which may result in racial imbalance not actionable; no duty to integrate), cert. denied, 380 U.S. 914 , 85 S.Ct. 898 , 13 L.Ed.2d 800 (1965); Bell v. School City of Gary, 324 F.2d 209, 213 (7th Cir.1963) (neighborhood school plan drawn with no intent or purpose to segregate is constitutional even if effect is that some schools will not be racially balanced), cert. denied, 377 U.S. 924 , 84 S.Ct. 1223 , 12 L.Ed.2d 216 (1964). Second, courts do not speak unless spoken to and cannot decide what is not before them. Here, the school board made hundreds of decisions since 1952 that the plaintiffs contend reflect segregative intent and effect, yet not until 1979 was the court asked to intervene. While this in no way would excuse noncompliance with the constitutional command to desegregate the schools, it does furnish a backdrop against which to understand the liability focus of this case.

II.

188

The amplification of Brown I and Brown II began with the Court's decision in Green, 391 U.S. 430 , 88 S.Ct. 1689 , 20 L.Ed.2d 716 (1968). The New Kent County, Virginia system was considerably smaller than the Topeka system, with an enrollment of 1300 students in two schools, approximately 57% black and 43% white. Id. at 432 , 88 S.Ct. at 1691 . The court considered a plan which allowed a student to choose between schools which were essentially one-race schools with respect to "faculty, staff, transportation, extracurricular activities and facilities." Id. at 435 , 88 S.Ct. at 1693 . In every way, the schools were a product of de jure segregation. Although students had a choice between schools, attendance patterns largely reflected the de jure system. Id. at 441 , 88 S.Ct. at 1696 . Eighty-five percent of the black children attended an all-black school. Id. at 441 , 88 S.Ct. at 1696 . The court made it clear that school boards operating state-compelled dual school systems at the time of Brown II "were ... clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." Id. at 437-38 , 88 S.Ct. at 1693-94 .

189

From 1955-1969, the Topeka school district underwent substantial transition. Due to annexation and unification between 1957 and 1964, the size of the district more than doubled, increasing from 16.60 to 37.45 square miles, which "fundamentally changed the system." See rec. vol. XI at 2399 (commenting upon changes from 1955-60). The population in Topeka grew until 1970, and thereafter declined. Rec. vol. XI at 2292-93; ex. vol. I at 12. This trend was reflected in school enrollment which has declined substantially in recent years. 8 The black and hispanic population increased significantly. Rec. ex. vol. I at 12. And the Topeka school board continued with its responsibility to eliminate de jure segregation and its vestiges.

190

In the 1955-56 school year, the board operated 23 elementary schools, 9 7 junior high schools, 10 and 1 high school. Brown, 671 F.Supp. at 1293 ; rec. ex. vol. IV at 38; supp. vol. XI at 186, 225. At the time of Brown I, the Court recognized that Topeka did not operate de jure secondary schools. Brown I, 347 U.S. at 486 n. 1. In the 1955-56 school year, black elementary students attended 18 out of 23 elementary schools. Brown, 671 F.Supp. at 1293 . At the elementary school level, the total black student population was 10.4% and three schools were 90 + % black (Buchanan, Monroe and Washington). See supra note 9. 45.6% of the black elementary students attended these three schools. Id. Thirteen elementary schools were 90 + % white. Id. At the junior high school level, the total black student population was estimated to be 11.2%. See supra note 10. There were no 90 + % black junior high schools, but 3 schools were 90 + % white (Holliday, Roosevelt & Capper).

191

In the 1968-69 school year, the school board operated 34 elementary schools, 11 11 junior high schools 12 and 3 high schools, 13 having added Highland Park High School in 1959 through annexation and Topeka West High School in 1961 through construction. Rec. ex. vol. IV at 64; supp. vol. XI at 225. The system had 25,737 students. Rec. ex. vol. IV at 65; see supra note 8. Three of the four initially de jure black elementary schools had been closed by the 1968-69 school year. McKinley was closed in 1955, Buchanan in 1959, and Washington in 1962. Brown, 671 F.Supp. at 1293 . Monroe, the only remaining de jure black elementary school (Monroe) had an enrollment which was 25% white. Id. At the elementary school level, the total minority 14 student population was 17.39% minority (12.40% black), and one school (Parkdale) was 90+% minority and three others were 50+% minority (Belvoir, Lafayette, Monroe). See supra note 11. Eighteen elementary schools were 90+% white. Id. At the junior high school level, the total minority student population was 16.50% (11.81% black). See supra note 12. There were no 90+% black junior high schools, but five junior high schools were 90 + % white (Capper, Eisenhower, Jardine, Landon & Roosevelt). Id. There were no 90+% black high schools, but one high school was 90+% white (Topeka West). See supra note 13. Minority students attended every school in the district, but in widely varying numbers. See supra notes 11-13.

192

In 1971, the Supreme Court provided greater guidance for the remedial phase of desegregation. Swann, 402 U.S. at 18 , 91 S.Ct. at 1277 . The Charlotte-Mecklenburg school system was considerably larger than the Topeka system, with an enrollment of more than 84,000 and 107 schools. Id. at 6 , 91 S.Ct. at 1271. The racial composition was 71% white and 29% black. To support liability, the Supreme Court mentioned that two-thirds of 21,000 black students in Charlotte city schools attended 21 schools which were 99+% black. Id. at 7, 91 S.Ct. at 1271. The district court's objective was to have the schools approximate the racial composition of the system, 71% white and 29% black. Id. at 9-10 n. 4, 91 S.Ct. at 1272-73 n. 4. To that end, the district court endorsed a plan that called for busing to achieve schools 9% to 38% black. Id. at 9, 91 S.Ct. at 1273.

193

As a remedial phase case, Swann is important because it speaks "to what extent racial balance or racial quotas may be used as an implement in a remedial order to correct a previously segregated system." Id. at 22, 91 S.Ct. at 1279. The school board argued that the district court erred by seeking racial balance in the 71%-29% range for each school. Id. at 23, 91 S.Ct. at 1279. The Court recognized that the district court's "use ... of mathematical ratios was no more than a starting point in the process of shaping a remedy, rather than an inflexible requirement," and was within the district court's equitable discretion. Id. at 25, 91 S.Ct. at 1280.

194

The Court spoke to whether there is any constitutional requirement of racial balance.

195

If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing, that approach would be disapproved and we would be obliged to reverse. The constitutional command to desegregate the schools does not mean that every school in the community must always reflect the racial composition of the school system as a whole.

196

Id. at 24, 91 S.Ct. at 1280. This is of paramount importance for this case because, despite the court's citation of this principle, see Court's Opinion at 861, 886, the court has not allowed it to operate. Rather, even after the Topeka board has implemented fully two desegregation plans and the system "improved dramatically in the last ten years as far as desegregation is concerned," Court's Opinion at 877, the liability focus of the plaintiffs and the court is unmistakably on the principle that more could have been done to achieve greater racial balance, that is more schools could approach the system-wide minority average in student assignment. See Court's Opinion at 876, 877-78, 882-84 (analyzing schools which plaintiffs suggest have "clear racial identities," id. at 882, and essentially criticizing school board decisions which resulted in these schools not approximating the system-wide average of minority students). However, "the fact that a school board's desegregation plan leaves some disparity in racial balance among various schools in the system does not alone make that plan unacceptable." Wright v. Council of the City of Emporia, 407 U.S. 451, 464 , 92 S.Ct. 2196, 2204 , 33 L.Ed.2d 51 (1972) (footnote omitted).

197

Equally important for this case is the Supreme Court's discussion in Swann of "whether every all-Negro and all-white school must be eliminated as an indispensable part of a remedial process of desegregation." Swann, 402 U.S. at 22 , 91 S.Ct. at 1279 . In a section entitled "One-Race Schools," the Court applied a common-sense approach to the problem of racial concentration in various parts of a metropolitan area.

198

The record in this case reveals the familiar phenomenon that in metropolitan areas minority groups are often found concentrated in one part of the city. In some circumstances certain schools may remain all or largely of one race until new schools can be provided or neighborhood patterns change. Schools all or predominantly of one race in a district of mixed population will require close scrutiny to determine that school assignments are not part of state-enforced segregation.

199

In light of the above, it should be clear that the existence of some small number of one-race, or virtually one-race, schools within a district is not in and of itself the mark of a system that still practices segregation by law. The district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation and will thus necessarily be concerned with the elimination of one-race schools.

200

Id. at 25-26 , 91 S.Ct. at 1280-81. When there has been intentional segregation in the past, there is a presumption against schools that are one-race minority or virtually one-race minority, and the school board has the burden of showing assignment is genuinely nondiscriminatory. Id. at 26, 91 S.Ct. at 1281; Price, 694 F.2d at 353-56 . The district court recognized this presumption, although it noted that this case does not "fit the Swann presumption easily." Brown, 671 F.Supp. at 1295 . Even though the proportion of minority students in this system is smaller than in many cases and there are no one-race minority or virtually one-race minority schools, the literal Swann presumption could be applied to the 90+% white schools. See Price 694 F.2d at 364-65 .

201

This court acknowledges the critical importance of a finding of "one-race" schools to support a current condition of segregation and liability overall. Court's Opinion at 860-61. The court correctly notes that the significance of "one-race" white schools in this case is limited because of Topeka's large majority white student population (74.05% in 1985). Id. at 869; see also Price, 694 F.2d at 364-65 (recognizing major purpose behind school desegregation cases is to secure rights of minority groups; literal compliance with Swann may not be required when system is heavily white and all schools are majority white). But the court departs from Swann when it imposes liability on the basis of student assignment in the absence of "one-race" minority schools or a district court finding of current intentional segregation. This court imposes liability for a lack of racial balance, while virtually ignoring the demographic testimony of defendants' expert (and other evidence adduced by the defendants), which was credited by the district court. See Court's Opinion at 869 n. 52 ("In a school system with a 26% minority student population, we think the number of schools in Topeka that approach or are over the 50% minority mark constitute persuasive evidence that the school system has not met its duty to desegregate.") (emphasis added).

202

In 1973, the Supreme Court added an important presumption which expanded the consequences of a current condition of intentional segregation in any part of a school system. Keyes, 413 U.S. at 208 , 93 S.Ct. at 2697 . The district court in that case had found contemporary and intentional segregation, including student and teacher assignment, with respect to schools in the Park Hill area in Denver, which were attended by almost 38% of the black student population. Id. at 199 , 93 S.Ct. at 2692 . Blacks comprised 14% of the students in the system, hispanics comprised 20%; for a system minority population of 34%. Id. at 195 , 93 S.Ct. at 2690 . Three of five elementary schools in the Park Hill area were 89+% minority; one junior high was 76+% minority and the other was 96+% minority. Id. at 199 n. 10, 93 S.Ct. at 2692 n. 10. Near Park Hill were 22 core city schools, all 22 were 70+% minority and 11 were 90+% black. The district court and the court of appeals essentially required independent proof that the core city schools were a product of official segregation. Id. at 205 , 93 S.Ct. at 2695 . The Court stated:

203

[W]e hold that a finding of intentionally segregative school board actions in a meaningful portion of a school system, as in this case, creates a presumption that other segregated schooling within the system is not adventitious. It establishes, in other words, a prima facie case of unlawful segregative design on the part of school authorities, and shifts to those authorities the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions.

204

Id. at 208 , 93 S.Ct. at 2697 . The Court emphasized that purpose or intent to segregate is what differentiates actionable de jure segregation from de facto segregation. Id. Thus, plaintiffs would be entitled to the Keyes presumption upon a showing of purposeful segregation in a meaningful part of the school system. Id. at 208-09 , 93 S.Ct. at 2697-98 . As noted, once the presumption is invoked, the defendant school board must come forward with evidence showing that "the existence of subsequent or other segregated schooling within the same system ... is not also the result of intentionally segregative acts." Keyes, 413 U.S. at 210 , 93 S.Ct. at 2698 . The school board must either disprove segregative intent or show "that its past segregative acts did not create or contribute to the current segregated condition." Id. at 211 , 93 S.Ct. at 2699 .

205

The framework in Keyes formed the basis for the Court's decisions in Columbus and Dayton II. These cases held that if a school board was operating a dual school system in 1954, even absent a state provision so allowing, a plaintiff may satisfy his initial burden of proof by relying upon evidence of "recent and remote intentionally segregative actions" of the school board. Columbus, 443 U.S. at 463-65 , 99 S.Ct. at 2949-51 (emphasis added); see Dayton II, 443 U.S. at 537, 99 S.Ct. at 2979. In both cases, the affirmative duty to eradicate the effects of past segregative conduct not only had been unfulfilled, but also segregative practices persisted. Columbus, 443 U.S. at 460-63 , 99 S.Ct. at 2948-49 ; Dayton II, 443 U.S. at 537, 99 S.Ct. at 2979. Either type of violation would satisfy the intent requirement under the fourteenth amendment; the basis for a system-wide remedy was "purposefully segregative practices with current segregative impact." Columbus, 443 U.S. at 466 , 99 S.Ct. at 2951 ; Dayton II, 443 U.S. at 537-38, 99 S.Ct. at 2978-79.

206

This court questions the applicability of Keyes and Columbus because those cases involved initial determinations of liability concerning policy-based dual, rather than statutorily dual, school systems. See Court's Opinion at 862. The court explains that the presumption developed in Keyes is limited only "to establish[ing] initial de jure segregation in a case where no statutorily mandated segregation exists." Court's Opinion at 863 n. 27; see also Columbus, 443 U.S. at 458 , 99 S.Ct. at 2946 (using Keyes presumption to establish system-wide segregation in 1954); Dayton II, 443 U.S. at 535, 99 S.Ct. at 2978 (same). According to the court, a different presumption "applies ... after either statutorily-mandated or policy-based de jure segregation has been established." Court's Opinion at 863 n. 27. The court then cites Dayton II in a later discussion for support. Court's Opinion at 863. However, like Columbus, Dayton II involved an initial determination of system-wide liability in Ohio where statutorily mandated segregation ceased after 1888. 443 U.S. at 534-35, 537, 99 S.Ct. at 2977-78, 2979; Columbus, 443 U.S. at 455-56 , 455 n. 4, 99 S.Ct. at 2945-46, 2945 n. 4. Segregation by official policy, not by statute, was at issue.

207

In both Columbus and Dayton II, the Keyes presumption was employed to decree a current system-wide remedy on the basis of recent and remote purposefully segregative action, including the failure to satisfy the affirmative duty to eliminate a dual system. Columbus, 443 U.S. at 467-68 , 99 S.Ct. at 2951-52 (discussing use of Keyes ); Dayton II, 443 U.S. at 537, 99 S.Ct. at 2979 (citing Keyes ), 443 U.S. at 534, 541-42, 99 S.Ct. at 2977, 2981-82 (consequences of 1954 dual system and intentionally segregative effect of actions since 1954 furnished basis of liability). Thus, the Supreme Court not only affirmed lower court findings of officially dual school systems as of 1954, but also approved current system-wide remedies based upon the authority of Keyes. Columbus, 443 U.S. at 467-68, 99 S.Ct. at 2951-52.

III.

208

In 1973, an action was filed against U.S.D. 501 and various other governmental defendants principally alleging that children in east and north Topeka (with higher concentrations of minority students) received inferior educational opportunities and facilities as compared to children in west and south Topeka. Johnson v. Whittier, No. T-5430 (D.Kan. filed Sept. 10, 1973). The filing of Johnson led to an investigation in November and December of 1973, by the U.S. Department of Health, Education and Welfare (HEW) to determine whether U.S.D. 501 was in compliance with Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Rec. ex. vol. II at 30.

209

In January 1974, HEW released its findings by letter. The findings of HEW are very similar to the plaintiffs' allegations in this case. Specifically, HEW determined four areas of non-compliance. First, HEW claimed that a "substantial number of ... schools continue to operate with student racial compositions not consonant with a unitary plan of student assignment capable of fully desegregating [the] district." Rec. ex. vol. V at 13. HEW found that five elementary schools "have substantially disproportionate minority student compositions clearly the result of a former dual pattern of operation." Id. The schools and minority percentages were: Monroe (73.98%), Lafayette (61.22%), Lowman Hill (49.08), Parkdale (91.81%) and Belvoir (71.90%). Id.; rec. ex. vol. II at 72. Second, optional attendance zones were criticized. In the "most extreme" (and only) case mentioned "students transferring from areas outside the Lafayette attendance area constitute approximately one-third of the minority enrollment." Rec. ex. vol. V at 13. Thus, HEW was concerned with transfers by minorities to schools with already high minority percentages. Third, HEW found that junior high school facilities in schools with higher minority percentages (Crane, 50.85%; Curtis, 28.90%; East Topeka, 63.32%; and Highland Park, 27.16%) generally were inferior to and older than the four schools with the lowest percentage of minority enrollment (French, 2.97%; Landon, 1.89%, Jardine, 2.13% and Capper, 1.23%). Id. at 13-14; rec. ex. vol. IV at 84 (1973-74 racial inventory). Fourth, HEW found that a larger percentage of minority students, as compared to white students, attended elementary schools with inadequate kindergarten rooms and s

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