# Liddell v. Board of Education

> District Court, E.D. Missouri · April 12, 1979 · 469 F. Supp. 1304

URL: https://www.frixlaw.com/law-library/cases/9321395

## Case

- **Full name:** Craton LIDDELL, a minor, and Earline Caldwell, and The National Association for the Advancement of Colored People, and City of St. Louis, and Janice Adams, and Mary Puleo, representing the Involved Citizens Committee, and United States of America, Plaintiffs-Intervenors v. The BOARD OF EDUCATION OF the CITY OF ST. LOUIS, STATE OF MISSOURI, and Daniel L. Schlafly, and the State of Missouri
- **Court:** District Court, E.D. Missouri
- **Decided:** April 12, 1979
- **Citations:** 469 F. Supp. 1304
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Meredith
- **Judges:** Meredith
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Adams v. United States, 620 F.2d 1277 (1980).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9321395

## Opinion text

TABLE OF CONTENTS
I. CASE HISTORY AND PROCEDURAL POSTURE.
II. FINDINGS OF FACT.
A. Stipulation of Facts.
B. The Board of Education.
C. State of Missouri and the State Board of Education.
D. Pre-Brown Conditions.
1. Dual school system.
2. Discriminatory laws.
3. Demographics.
4. Board activities.
E. 1954-56 Desegregation Plan.
F. Resegregative Factors.
1. Socio-demographic changes in St. Louis.
2. Housing segregation.
3. Title I.
G. Resulting De Facto Resegregation.
1. Transitions in the schools.
2. Changing pattern in school enrollment (excluding Harris Teacher's College).
3. Racial imbalance in the St. Louis public schools.
4. Schools referred to as vestiges.
H. Actions of the Board.
1. Adoption of the neighborhood school system.
2. Student transfers.
a. Transfers concomitant to desegregation.
b. Permissive transfers.
c. Special transfers.
*1308 3. Boundaries and feeder patterns.
4. Redistricting.
5. Transportation.
a. Intact busing.
b. Busing 1964-78.
6. School construction.
7. School closings.
8. Schools with city-wide enrollment,
a. The Technical high schools.
9. Staff.
a. Faculty.
b. Non-certificated personnel.
c. Administrators.
d. Pupil-teacher ratio.
10. Curriculum and facilities.
a. Curriculum.
b. Facilities.
c. Retentions and withdrawals.
11. Magnet schools.
a. Admissions to the magnet schools.
III. CONCLUSIONS OF LAW.
A. Governing Constitutional Principles.
B. Effectiveness of the 1954-56 Desegregation Plan.
C. Burden of Proof.
D. Racial Imbalance in the St. Louis Schools.
IV. POSITIONS AND PLANS OF THE PARTIES.
V. APPENDIX.
A. Racial Composition of the Enrollment in the
St. Louis Elementary and Secondary Schools by District.
1. Year 1972-73.
2. Year 1975-76.
3. Year 1978-79.
B. Consent Judgment and Decree, December 24, 1975.
*1309
MEMORANDUM
MEREDITH, Chief Judge.
This matter was tried to the Court. The Court makes the following findings of fact and conclusions of law:
I. CASE HISTORY AND PROCEDURAL POSTURE.
This is a school desegregation case involving the public schools of the City of St. Louis, Missouri. On February 18, 1972, plaintiffs, who are representatives of the Concerned Parents of North St. Louis, filed their initial complaint. Plaintiffs represent school age children and their respective parents and next friends residing in the metropolitan school district of the City of St. Louis. Plaintiffs (hereinafter Liddell, et al.), each of whom is black, brought this action as a class action on behalf of themselves and all other school age children and their parents in that area. Plaintiffs named as defendants the Board of Education of the City of St. Louis, State of Missouri, and its members (hereinafter Board), in their official capacities, as well as the then Acting Superintendent of Schools and the District Superintendents of the Board of Education of the City of St. Louis, all in their official capacities.
In their initial complaint, Liddell, et al., alleged jurisdiction under 28 U.S.C. §§ 1343 (3) and 1343(4), 28 U.S.C. § 2201 , 42 U.S.C. §§ 1983 , 1988, and 2000d, and the Fourteenth Amendment to the Constitution of the United States.
Liddell, et al., alleged that the defendants, by their methods of maintaining and operating the school system, have perpetuated racial segregation and discrimination in the St. Louis City School system. Lid-dell, et al., further alleged that the defendants have so acted as to incorporate segregated residential patterns into the schools, to allocate educational resources in a discriminatory manner, and to perpetuate a dual biracial school system, thus failing in their affirmative duty to establish and maintain unitary public schools.
Liddell, et al., prayed that defendants be enjoined to take all steps reasonably necessary to establish a nonsegregated, nondiscriminatory school system, and be required to submit a plan for the allocation of educational resources, geographical boundaries and transportation routes, as well as staff and pupil assignments which will satisfy the Fourteenth Amendment requirements. In addition, Liddell, et al., asked for costs, attorneys’ fees, and other relief.
Defendants answered this complaint, denying the material allegations, on April 19, 1972.
On October 3, 1973, after discovery proceedings by the parties, the Court allowed this action to be maintained as a class action pursuant to Rules 23(a) and. (b)(2) of the Federal Rules of Civil Procedure, and notice of the pendency of the class action was duly published. The Court also, by public notice, invited other interested parties to intervene on or before December 1, 1973.
On October 30, 1973, defendants filed a motion to join as additional parties defendant the Governor, the Attorney General, the Commissioner of Education of the State of Missouri, the State Board of Education of Missouri, the St. Louis County Superintendent of Education, and the twenty school districts in St. Louis County which constitute the first two tiers of school districts adjoining the defendant school district of the City of St. Louis. The motion was denied on December 1, 1973.
On February 28, 1974, the Court requested that the parties file a written Stipulation of Facts. This was done on June 7, 1974. Exhibits filed with the stipulation have been supplemented to provide statistical material for the school years up to 1975-76.
On June 21, 1974, after proper publishing of notice to prospective members of the class and other interested parties, the Court, noting that no party had requested intervention, ordered that the cause might continue as a class action.
On December 24, 1975, the parties to this action entered into a consent judgment and *1310 decree which the Court approved. (The consent decree is set out in full in Appendix B.) The consent decree was based on a denial by the Board of Education that plaintiffs’ charges were true, and a recognition that there was racial imbalance in the school system despite the Board’s efforts to integrate the system.
The Board agreed to take further affirmative action in order to overcome the effect of residential patterns and to alleviate racial imbalance in the City schools. The Board agreed to progressively increase the percentage of minority teachers in every school, so that, in 1976-77, 10%, in 1977-78, 20%, and in 1978-79, 30% of the teachers at each school would be of the race that was in the minority at that particular school. This was to be done by voluntary transfers if possible, but otherwise by mandatory assignment despite any contracts, tenure, or seniority agreements to the contrary. This goal has been substantially met even though all parties did not agree to the continuation of the program.
In addition, defendants agreed to strive to increase integration by their manner of providing classroom space, to study realignments of feeder schools, to consider elementary magnet schools and special subject high schools, both with city-wide enrollments, and to attempt to improve the curriculum, all in an effort to relieve the residence-based racial imbalance in the City schools.
On December 24, 1975, the Court ordered publication of the consent decree and notice was ordered to all interested parties that they might object to the consent judgment by filing a statement before Friday, January 16, 1976.
On January 16, 1976, objections to the consent decree were filed by the Missouri State Teachers Association, St. Louis District; the St. Louis Teachers Union, Local 420, American Federation of Teachers; and the St. Louis Teachers Association.
A group of black students and their parents and next friends, together with the National Association for the Advancement of Colored People, Caldwell, et al. (hereinafter NAACP), also filed their objections and applied to intervene as representatives of the class.
Both plaintiffs 1 and defendants objected to the intervention of the NAACP and moved to dismiss the objections and motion to intervene.
Liddell, et al., further argued that because of their intimate knowledge of the particulars of the St. Louis City Schools situation, they were better able to structure solutions on a local level than a bureaucratic national organization like the NAACP would be.
After a hearing on January 23, 1976, all objections and applications for intervention were denied by this Court. Only the NAACP appealed from that order.
On December 13, 1976, the U. S. Court of Appeals for the Eighth Circuit reversed the order of this Court and allowed the appellants’ motion to intervene. Liddell v. Caldwell, 546 F.2d 768 (8th Cir. 1976). The only issue before the Eighth Circuit was the right of the NAACP to intervene. As the appeal was interlocutory, the Court of Appeals did not consider the merits of the consent decree.
On January 28, 1977, the appeals court denied the defendants’ motion for a stay of mandate pending petition for certiorari, and said that the consent decree, although interlocutory as to remedy, still obliged the parties to go forward with implementation of a desegregation plan and to make “every effort to achieve the greatest possible degree of actual desegregation, taking into account *1311 the practicalities of the situation.” Davis v. Board of School Comm’rs. of Mobile County, 402 U.S. 33, 37 , 91 S.Ct. 1289, 1292 , 28 L.Ed.2d 577 (1971).
On February 25, 1977, this Court granted leave to Caldwell, et al., or the NAACP, to intervene and made them parties to this cause, “adopting the original complaint as filed February 18, 1972, and the stipulation of fact, filed by the original parties herein on June 7, 1974, in the same manner and with like effect as if named as original parties to this cause.”
By submission of reports on February 28 and March 10, 1977, the defendants filed their plan for desegregation, pursuant to the requirements of the consent decree. The measures proposed in these reports include (i) the establishment of fully integrated junior high schools, (ii) expansion of the magnet school program, including the establishment of a new magnet high school, (iii) expansion of the integrated enrollment in two alternative high schools, Metro and O’Fallon Technical, (iv) emphasis on permissive transfers to improve desegregation, (v) adjustment in transportation to improve desegregation, (vi) in-service training and other collateral services, (vii) an educational park, and (viii) a metropolitan remedy. A financial report, filed on March 15, 1977, set forth the estimated costs for the programs contemplated, and the projected cost allocation between the Board and the Department of Health, Education and Welfare (HEW).
On March 28, 1977, the United States Department of Justice was allowed to intervene as amicus curiae, having declined to intervene as a party. Subsequently two groups of parents and pupils representing white students in the St. Louis public schools, identified as the Involved Citizens Committee (and also as Puleo, et al.) and the Concerned Parents for Neighborhood Schools (Adams, et al.), and the City of St. Louis were allowed to appear as amici curiae.
In May, 1977, Liddell, et al., the NAACP, and the United States Department of Justice submitted their separate alternative plans for desegregation under the consent decree. The NAACP also moved to enforce its own desegregation plan by an injunction.
In its order of July 13, 1977, the Court noted that the only part of the Board’s plan to which all parties agreed was the magnet school program. Therefore the defendants proceeded with that program. As it would be inconsistent with due process to direct that the contended portions of the plan be implemented immediately, without a hearing, the remainder of the plan could not be implemented in 1977. The Court ordered a July 25, 1977, hearing on the proposed plans. Therefore, the motions of intervening plaintiffs NAACP and of amicus curiae United States Department of Justice, requiring immediate implementation of their own plans, were denied, and the subsequent reversal of position and separate motions by intervening plaintiffs NAACP and the United States Department of Justice requesting immediate implementation of the Board’s plan were denied so that an orderly hearing might be held. The defendants’ motion to dismiss the alternate plans of Liddell, et al., the NAACP, and the United States was denied.
At that time, in the light of the recent Supreme Court cases, Milliken v. Bradley, 433 U.S. 267 , 97 S.Ct. 2749 , 53 L.Ed.2d 745 (1977); Dayton Board of Education v. Brinkman, 433 U.S. 406 , 97 S.Ct. 2766 , 53 L.Ed.2d 851 (1977), and School District of Omaha v. U. S., 433 U.S. 667 , 97 S.Ct. 2905 , 53 L.Ed.2d 1039 (1977), it became necessary for this Court to determine whether, in fact, there had been any constitutional violation by the defendants. There was no determination of a constitutional violation made in the Stipulation of Facts or in the consent decree.
A trial to this Court was to determine the following: whether there has been any constitutional violation on the part of defendants, and, if so, what is its nature and extent. If a constitutional violation were found, the Court would consider implementing remedies, matching the extent and scope of any remedies found necessary to the extent and scope of any violation which may be found.
*1312 By order of July 14, 1977, the trial date was postponed to October 17, 1977, in order to permit the State defendants to prepare for trial.
Before commencement of the trial, the United States Department of Justice (hereinafter Department), 2 Puleo, et al., or the Involved Citizens Committee, Adams, et al., or the Concerned Parents for Neighborhood Schools, and the City of St. Louis 3 were allowed to intervene as parties plaintiff. The State of Missouri, the Missouri State Board of Education, and the State Commissioner of Education were made parties defendant.
This case was tried to the Court in thirteen trial weeks at five different settings between October 17, 1977, and May 26, 1978. During the 13 weeks of trial, 39 witnesses testified in person and one by deposition. About 1,200 exhibits were received in evidence. The trial proceedings covered 7,115 pages of transcript. The trial addressed both issues of liability and remedy.
II. FINDINGS OF FACT.
A. Stipulation of Facts.
The Stipulation of Facts was filed by the original parties, Liddell, et al., and the Board, on June 7, 1974, pursuant to a February 28, 1974, request by the Court. This request came after the Court had, by public notice, invited any interested parties to intervene in this class action.
The Stipulation of Facts consists of 50 pages of description and facts concerning the St. Louis public schools to which the original parties agreed and are bound.
Subsequent to the filing of the Stipulation of Facts, other parties have intervened as parties plaintiff.
When Caldwell, et al., (NAACP), sought to intervene in the class action, they did not attempt to “assert a right to relitigate or undo the factual stipulations of the parties.” Liddell v. Caldwell, 546 F.2d 768, 770 (8th Cir. 1976). The Eighth Circuit described the Stipulation of Facts in the following manner: “the stipulation appears to fairly set forth the basic history and statistics of the St. Louis school system.” Id. at 770 .
The February 25, 1977, order of this Court granting the application for intervention of Caldwell, et al., (NAACP), specifically provided that the intervenors adopt the Stipulation of Facts “in the same manner and with like effect as if named as original parties.” This Court also held in the order of July 13, 1977, that all parties are bound by the Stipulation of Facts.
B. The Board of Education.
The original defendants are the Board of Education of the City of St. Louis, which is a metropolitan school district, a body corporate, created and governed by the statutes of the State (hereinafter referred to as the Board), and the following persons who are sued in their respective official capacities at the time the suit was filed: the twelve members of the Board, the Acting Superintendent of Schools, and the five District Superintendents of the districts into which the school system of the City is administratively divided.
The Board has the supervision and government of the public schools and public school property within said district; and in its name the Board may sue and be sued; purchase, receive, hold and sell property, and do all things necessary to accomplish the purposes for which the school district is organized.
Under the laws of Missouri, all titles to property granted to the City of St. Louis by the United States or the State of Missouri for school purposes, and the title to all school lands and other property of every kind within the City of St. Louis are vested in the Board.
The laws of Missouri require the Board to organize annually by electing a president, *1313 vice-president and secretary from its members, and to appoint a superintendent of schools; and that should the superintendent of schools be unable to perform his duties as required by law, or if the office of superintendent becomes vacant, the Board shall appoint an acting superintendent to serve during the period of disability of the superintendent or the vacancy in the said office.
The laws of Missouri vest the Board with general and supervising control, government and management of the public schools and public school property in said City of St. Louis, and generally with all powers in the administration of the public school system in said City, inter alia, the following:
(a) to appoint the officers, agents and employees it deems necessary and proper and fix their compensation; (b) to make, amend and repeal rules and bylaws for the government, regulation and management of the public schools and school property in said City; (c) to examine, qualify and employ teachers; (d) to purchase and hold all property, real and personal, deemed by it necessary for the purpose of public education; (e) to build and construct improvements for such purposes, and sell the same; (f) to levy taxes authorized by law for school purposes; and (g) to provide for the gratuitous transportation of pupils to and from schools in cases where by reason of special circumstances pupils are required to attend schools at unusual distances from their residences.
Furthermore, as provided by statute, the Board is subject to rules promulgated by the State Board of Education on a number of subjects, including accreditation, classification and requirements for the schools of each class, and is supervised by the State Board in some respects.
Pursuant to the laws of the State of Missouri, the Board appointed a Superintendent of Schools, and during his leave of absence in the school year 1971-72, an Acting Superintendent of Schools was appointed for that year. These officials have statutory authority (subject to the approval of the Board of Education of the City of St. Louis, or under regulations made by the State Board of Education), inter alia, as follows:
(a) to appoint a treasurer;
(b) to appoint a commissioner of school buildings;
(c) to appoint associate and assistant superintendents;
(d) to prepare and administer the annual budget of the school system;
(e) to have general supervision of the school system, including its various departments and physical properties, course of instruction, discipline and conduct of schools, textbooks and studies; and
(f) to have general supervision of all school buildings, apparatus, equipment and school grounds and of their construction, installation, operation, repair, care and maintenance.
The boundaries of the School District of the City which is administered by the Board are coterminous with those of the City of St. Louis itself. These boundaries, which comprise 61.37 square miles, have remained the same since their establishment by the legislature in 1876. Compare § 5271, R.S. Mo.1879 with § 46.145, R.S.Mo.1969. The City of St. Louis is also a county but separate and distinct from St. Louis County which adjoins the City of St. Louis.
C. State of Missouri and the State Board of Education.
Prior to 1954, the Missouri Constitution provided separate schools for black and white pupils. Art. IX, § 1(a), Mo.Constitution, 1945. Several state statutes served to implement that provision by providing for the distribution of separate school moneys (§ 161.020, R.S.Mo.), separate enumerations and the transfer of black pupils between districts (§§ 163.130, 164.030, 165.117, 165.-297, R.S.Mo.). The legislature acted promptly in response to Brown v. Board of Education of Topeka, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954). State funding for separate black and white schools was repealed at the next regular session of the General Assembly. Laws of 1955 at 520. *1314 The remaining statutes were repealed in 1957. Laws of 1957 at 452.
In 1961, laws were enacted prohibiting discrimination in housing (Chapter 213, R.S. Mo.), employment (Chapter 296, R.S.Mo.), and public accommodations (Chapter 314, R.S.Mo.). The latter chapter by its terms is applicable to schools. Enforcement of these laws was vested in the Missouri Commission on Human Rights. No other laws were enacted, nor were any laws amended which expressly or by implication required or permitted school districts to make distinctions between black and white pupils, or which encouraged districts to resist the removal of vestiges of the dual system within their districts.
The Missouri State Board of Education has constitutional and statutory authority to “supervise instruction” in the public schools of Missouri (Art. IX, § 2(a), Mo.Constitution, 1945), and to otherwise effectuate the educational policies of the State. § 161.092, R.S.Mo.1969 (as amended, Cum. Supp.1975). The State Board distributes state aid on an annual basis to local school districts pursuant to a formula taking into account, inter alia, numbers of pupils served and local tax effort. § 163.031, R.S.Mo.1969 (as amended, Supp.1977).
State aid may be withheld only if a school district fails to: (a) operate its schools for a minimum number of days, (b) maintain adequate financial records, (c) levy a minimum property tax, or (d) compute average daily attendance as prescribed by law. § 163.021, R.S.Mo.1969 (as amended, Cum.Supp.1975).
The State Board has statutory power to provide state aid in the transportation of students and to approve all school bus routes traveled by school buses. § 163.161, R.S.Mo.1969 (as amended, Supp.1977).
St. Louis, as a “metropolitan district,” is empowered to transport pupils to and from schools “where by reason of special circumstances pupils are required to attend schools at unusual distances from their residences.” § 162.621(8), R.S.Mo.1969.
All other districts are subject to statutory mileage criteria. § 167.231, R.S.Mo.1969 (as amended, Supp.1977).
The determination of pupil assignments and transfers, the drawing of attendance zones and feeder patterns, the selection of sites for schools and additions, and the assignment of faculty are within the discretion of local school officials, and are not shown to be routinely reported to the State.
The State Board is responsible for approving applications from the St. Louis Board for aid under Title I of the Elementary and Secondary Education Act of 1965 and such aid is also subject to final approval by the Department of Health, Education and Welfare (HEW).
The evidence shows that the State of Missouri effectively removed all barriers at the state level to the desegregation of the schools. There is no showing that any actions of the State, the State Board of Education, or the Commissioner of Education of the State of Missouri had a segregative effect or in any way hindered desegregation.
D. Pre-Brown Conditions.
1. Dual school system.
Prior to the decision in Brown v. Board of Education of Topeka, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954), the public schools of the State of Missouri were segregated pursuant to state constitutional and statutory law. As of that time the public schools maintained and operated by the Board had a total enrollment of 90,327 pupils, comprising the following:
*1315 Over 30,000 children in St. Louis attended private and parochial schools, a relatively low percentage of that number being black.
Prior to 1954 the Board operated seven (7) high schools limited to white students. These schools were Beaumont, Central, Cleveland, McKinley, Roosevelt, Soldán, and Southwest high schools. There were two (2) high schools limited to black students. These schools were Sumner and Vashon. There were also two vocational or technical schools, one black and one white.
Under the dual school system white students were assigned to schools on the basis of proximity to their homes. Black children did not have neighborhood schools, but were instead bused to the black schools at the core of the City. Separate, overlapping attendance zone lines were maintained for black schools and white schools. This resulted in some extremely large attendance zones for black schools.
2. Discriminatory laws.
Segregation was eliminated in the following public facilities and community services in the indicated years. The Catholic schools were desegregated in 1947. Nondiscrimination was made the law in City employment in April, 1946. White teachers were employed in black segregated schools prior to 1955. The St. Louis area ball parks were desegregated and St. Louis University was integrated in 1944. Washington University was integrated in 1947. The St. Louis theaters were desegregated in 1951. The St. Louis recreational facilities were desegregated in 1950, and the public transit system was desegregated in 1953.
In 1918, an attempt was made to impose segregated housing on the City’s population. Over the opposition of City officials, a segregated housing ordinance was passed by initiative petition. This ordinance was immediately struck down by the courts and was never enforced. Nevertheless, as of 1954, segregation in housing existed due to private discriminatory practices and actions and policies of the Federal Housing Administration.
3. Demographics.
A quick review of St. Louis demographics prior to 1954 reveals a tendency of certain groups of common race, national origin, religion, and economic means to settle in certain areas of the City. This tendency has resulted in some homogeneous residential patterns despite the heterogenity of the population of St. Louis as a whole. Although grouping in homogeneous residential patterns was evident prior to 1954, all groups remained highly mobile. Pockets of blacks were residing throughout St. Louis, although much of the black population lived in the area immediately north of the downtown area. The tremendous mobility of the St. Louis population was to be shown in demographic changes after 1954.
The population of St. Louis grew until 1950, when the population was 856,796. The racial composition in St. Louis was then 82.1% white and 17.9% black. In 1950, the white population in St. Louis had declined by 4,253 from 707,283 whites in 1940. White attendance in the St. Louis public schools had also declined as of 1950.
4. Board activities.
The St. Louis Board of Education anticipated the outcome of the Brown decision and in 1953 began to prepare for desegregation.
By the time the Brown decision has handed down a number of steps had been taken by the Board, including: interracial activities for principals, teachers and students; introduction of teaching materials portraying contributions of different ethnic groups to American life; comprehensive programs to improve the teaching of human relations in the schools; working with church groups, civil rights groups and other community organizations to prepare the community for desegregation and to obtain community support for desegregation; and arrangements to familiarize Board members, school officials and community leaders with the experience of a desegregated public school system. The pre-Brown activities of the Board also included the preparation of plans for the desegregation of the school system. The administrative staff of the Board be *1316 gan preparing a desegregation plan for implementation as soon as the Supreme Court acted.
This anticipatory work by the Board was praised at the time of Brown in that it made possible an early completion of the integration program for St. Louis. Irving Dilliard, chief editorial writer for the St. Louis Post-Dispatch, made the following comments on the Board’s efforts in his editorial of May 19, 1954:
“Ready acceptance in St. Louis is indicated by the reception of the [Brown I] decision here. Much to its credit, the Board of Education has anticipated the result and has in hand plans for developing a single school system. It can be hoped that this program is already far enough along on paper that it can be completely worked out and put into effect next September. Three months is a substantial period. Accommodation of the ruling through the summer vacation season would be a splendid achievement for the second largest city in the country (after Baltimore) with a segregated school system.”
E. 1954-56 Desegregation Plan.
On June 30, 1954, the Attorney General of the State of Missouri ruled that the provisions of the Constitution and laws of Missouri requiring segregation were superseded by Brown and were unenforceable. By that time, to wit, on June 22, 1954, the Board had already adopted a three step program for desegregation of the St. Louis public schools. The first step provided for desegregation at the junior college, teachers college level and in those classes which provided services on.a city-wide basis. This first step was completed by September 1954.
The second step provided for desegregation of all high schools (except for the technical high schools) and also for desegregation of the adult education program. The third step provided for desegregation of the two existing technical high schools and all regular elementary schools. The plan was implemented over a two year period, from 1954 to 1956. 4
The three point program eliminated race as a required criterion in determining eligibility- to enroll in any public school of the system. After the adoption of this program, students were assigned to the schools in accordance with the following general principles to govern the integration process for students, which were adopted by the Board at the said meeting of June 22,1954:
a. The areas to be served by each elementary and each secondary school will be established by new boundaries. In drawing these boundaries, the purpose will be to provide the best use of the facilities of a given school by the students living in the area of that school.
b. These boundaries will provide each school with a district which it will serve. Students must attend school -in the district in which they live, with the following exceptions:
(1) The proper school authorities may transfer students from one district to another to relieve overcrowding.
(2) Students already enrolled in a school, but not resident in its new district may, but are not required, to continue at that school until they graduate. This privilege will be granted, however, only if the particular school is not overcrowded.
For the accomplishment of these objectives, IBM cards were prepared for city blocks showing the number of students without any consideration of race or color. All reference to race or color was eliminated in the records of the St. Louis Public School System from 1954 until 1962, 5 when the first racial count was taken pursuant to the rec *1317 ommendation of the U. S. Commission on Civil Rights.
The new attendance boundaries for elementary schools were drawn by a high level black administrator, James Armstrong Scott, who used the following procedure:
a. All principals of all elementary schools were required to send the grades and residence addresses of each of their students to a central office, where the information was reduced to IBM cards, which were then sorted by the city block on which each of the students resided.
b. Mr. Scott was then supplied with a separate sheet of paper for each city block, on which sheet was printed the number of public school students residing on that block and the grades which they attended. There was no other information on the sheet. The names, ages, race, and home addresses of the children were all deleted.
c. Attendance boundaries were then drawn for each school, using as the criteria only proximity to the school building and building school capacity, giving consideration for natural barriers such as major thoroughfares and distance.
Mr. Scott was instructed “to do the whole job” and to rely on the following factors alone:
“To draw the lines objectively by the use of IBM cards and to decide each district on the — in terms of building capacity, that is if it’s a five hundred school which would hold five hundred children. And on distance, so that the children would not have to go too far. And on the basis of safety, so that they wouldn’t have to cross dangerous spots. And in the case of some, on the basis of transportation because even with the best districting, some children did have to ride to school.”
(Scott deposition, pp. 8-9.)
Subsequent to the establishment of the new boundaries, there was a series of meetings and communications with parents, and the new boundaries were publicized in the newspapers in advance of their implementation. The new elementary boundaries were approved by the Board in its meeting of March 8, 1955.
One of the effects of the redistricting in 1954 was to bring about equalization of students in attendance at the various schools. As Scott testified:
“In some schools, especially toward the edge of the black area, there were schools of white children that had some empty rooms and they were redistricted to take down the numbers from the black schools. For years the black schools, the teachers had about forty-five children to a room; whereas, in most of the white schools there were about thirty-five children. But when we redistricted in 1954-55, we tried to have every school in the city, black or white, average the same number of pupils per room.”
(Scott deposition, pp. 49-50.)
The high school boundaries were redrawn by Mr. Sellman, using the same method as Mr. Scott used. The new boundaries were publicized and interested groups and organizations, including the NAACP, the Urban League, PTA and other civic and religious groups were invited to inspect and comment on them. No complaints were received and the boundaries were approved by the Board on December 14, 1954.
The plan formulated by the Board, described above, succeeded in desegregating the previously dual school system. 6 The level of desegregation achieved through the plan was substantial and system-wide. Almost 60% of the black high school students chose to attend the previously all white school in their new district attendance area, with the result that six of the seven previously all white high schools had a racially mixed enrollment. At the elementary school level about two-thirds of the total enrollment were attending interracial schools. 7
*1318 The Board’s desegregation plan encompassed desegregation of the faculty, discussed infra, the administration, and the Board itself. Since April 18,1955, there has been no time when the 12-member Board did not include at least one black member, two since the school year 1960-61, three since the school year 1962-63, and four since the school year 1970. There have been four black presidents elected by their colleagues on the Board.
Special committees were appointed by the Board to deal with desegregation policies and procedures. The first was a staff committee of three members, of which James A. Scott, a black assistant superintendent, was chairman from the establishment of the committee on November 14, 1961. The second was a continuing committee on integration, consisting of four members of the Board, which was created on September 10, 1963, and was first chaired by the Reverend John J. Hicks, one of the black Board members.
The Board’s desegregation plan received widespread support in 1954 from civil rights supporters. Wylie Davis, in his study on St. Louis which was a Report to the Civil Rights Commission in 1962, praised the effectiveness of the Board’s plan:
“The 1954-56 transitions, then, were solidly conceived and brilliantly carried off. They represented a signal breakthrough in human relations, and everywhere those who prize man’s dignity were properly impressed.”
As a result of the Board’s 1954-56 desegregation plan, a unitary public school system was achieved in St. Louis.
F. Resegregative Factors.
After the 1954-56 desegregation plan was implemented, several forces, outlined below, which are beyond the Board’s control, impeded further integration and caused resegregation in the St. Louis public schools.
1. Socio-demographic changes in St. Louis.
In its origin and for many decades thereafter the population of the City was predominantly white. The more recent decades, however, show a sizeable and consistent increase in the black population of the City, with a large loss of the white population and a significant loss of the total population. Since no issue is raised in this ease as to any race or ethnic group other than black, and since the aggregate of all such other minority groups is negligible in itself, they are combined with “whites.”
The census data show the extent of this transition over the years since 1940:
Year Total Population Black % Black
1940 816,048 108,765 13.3%
1950 . 856,796 153,766 17.9%
1960 750,026 214,377 28.6%
1970 622,236 254,191 40.9%
1977* 523,000 229,980 44.0%
*The 1977 figure is an estimate.
During the period from 1950 to 1970 the “net out-migration” 8 of whites from the City amounted to over 400,000 while blacks showed an overall increase of over 100,000.
*1319 The exodus of whites and affluent blacks from the City to St. Louis County was caused and accelerated by a variety of mutually reinforcing factors; combination of widespread automobile ownership and building of expressways; abundance of land in the County which could be developed with modern homes, contrasted with the nonavailability of such land in the City and the age of the City’s buildings which were found less desirable to satisfy the lifestyle of a post-war affluent society; and the pull of jobs in the County due to the very sizeable growth of employment opportunities provided by large manufacturers and businesses which became located in the County.
This movement from the City to St. Louis County is reflected in the following statistics of the United States census with regard to the racial composition of the County’s population:
Year Total Population White % Black
1940 274,230 261,840 4.5%
1950 406,349 389,336 4.1%
1960 703,532 683,652 2.7%
1970 951,353 902,002 4.8%
The white exodus to the suburbs in the 1950’s and 1960’s was accompanied, and partially caused or accelerated by the movement of the blacks from the inner-city area to the central west end and later to the northwest areas of the City and into the County. Factors in this black migration from the inner-city were the economic upgrading of former poverty and low income level families, and the impact of razing slum areas in preparation for new housing developments such as the Mill Creek area (declared blighted in 1953), J. J. Cochran (1953), Capt. N. 0. Pruitt (1955), Wm. L. Igoe (1956), G. L. Vaughan (1957, 1963), J. M. Darst (1956), and A. M. Webbe Apartments (1961). The slum razing resulted in large-scale displacement of black residents of the inner-city, the majority of whom migrated to the west end.
Intra-city movement and dislocation of blacks was also produced by the clearance required for the development of the highway system, including Highways 55, 44, 70, and 40. These displacements resulted in a major intra-city migration of blacks from the traditional inner-city to the central west end and to the northwest areas of the City and into the County.
Prior to the 1960 census only 2% of the blacks in St. Louis lived west of Kingshighway. By April, 1963, over 25% of the black population lived west of Kingshighway.
The west end area of St. Louis (Union to Hodiamont and Delmar to Page) went from about 60% black in 1962 to almost 100% black today.
The black out-migration from the inner-city to the west end and northwest St. Louis has resulted in high population density in the receiving areas. In many instances the shifting of blight, as dwellings became unprofitable to the landlords and unlivable for the tenants, resulted in the downgrading and the eventual abandonment of neighborhoods, which caused a continuous search by blacks for a better neighborhood.
Another result was the depopulation of previously heavily occupied areas. During the westward, northward and northwestward expansion of the black population of the City between 1950 and 1970, fifty percent of the blacks moved out of the older black areas. This is reflected in the following statistical analysis by the 26 health districts into which the City has been divided since before 1950:
*1320
*1321
The number of health districts with 10% or more black population (of all ages) increased from 8 in 1950 to 15 in 1970 and during the same period the number of health districts with more than 40% black population increased from 4 to 12. The percentages of blacks computed from the total population of each health district in 1950, 1960, and 1970 were as follows:
*1322
In 1970 the bulk of the black population (of all ages) of St. Louis was concentrated in a comparatively small area of the City which included about 60% of 156 elementary school districts.
During the last few decades the proportion of black students enrolled in the City’s public schools has consistently been greater than the proportion of the City’s total black population. This is caused by a number of factors, including the fact that a higher proportion of black families than white is in the child-bearing age group; a higher proportion of white pupils than black attend private and parochial schools; and that elderly whites represent a large portion of the white population which remained in the City, whereas a large proportion of 'those who moved to the suburbs have been young and middle-age families with children.
In 1950 the black population was 17.9% of the total population of the City, while in the same year, black elementary school enrollment accounted for 30.8% of the total enrollment. By 1970 the City’s black population was 40.9% of the total while black pupils made up 65.6% of the elementary school enrollment. In 1977 black enrollment in elementary schools was up to 72.7%, while the total black population of the City was estimated at 44%. The black student enrollment covers a wider geographical area than the overall black population.
Together with the massive shift in the black- population to the central west end and the northwest areas of the City, there was a shift in the geographic concentration of school-age children. This relocation of school age children needs to be compared with the higher use of the public schools by black children than by white children and explains the tremendous overcrowding of public schools in the northwest portions of the City.
From 1953 to date, the racial composition of the pupils attending the public schools of the City, excluding Harris Teacher’s College, has been as follows:
*1323
2. Housing segregation.
The evidence of housing segregation in St. Louis is undisputed in the record. The Report of the U. S. Commission on Civil Rights, “Racial Isolation in the Public Schools,” 1967, gives St. Louis as an example of “severe” residential segregation.
Prior to 1954 a pattern of racial housing segregation prevailed in the City and discriminatory restrictions against blacks were enforced by the courts and agencies of the State of Missouri. Dolan et al. v. Richardson et al., 181 S.W.2d 997 (Mo.App.St.L., 1944); Shelley v. Kraemer, 355 Mo. 814 , 198 S.W.2d 679 (en Banc, 1946) rev’d, 334 U.S. 1 , 68 S.Ct. 836 , 92 L.Ed. 1161 (1947); and Jones v. Alfred H. Mayer Co., 255 F.Supp. 115 (E.D.Mo.1966), aff’d, 379 F.2d 33 (8th Cir. 1967), rev’d, 392 U.S. 409 , 88 S.Ct. 2186 , 20 L.Ed.2d 1189 (1968).
After 1954 certain discriminatory practices against blacks continued to exist in the City, such as:
*1324 (a) the failure of the City to enforce building codes and the strict adherence to use of brick in building,
(b) red-lining of areas by insurance companies and lenders,
(c) segregated policy of the Federal Housing Administration (FHA), and
(d) newspaper listing of separate for “colored” ads.
The fact that government policies and action have been a major force in developing and maintaining housing discrimination against blacks is undisputed in the record. The Department of Housing and Urban Development (HUD) is and for many years has been guilty of intentional housing segregation and has been so found by some federal courts. (Testimony of Dr. Gary Orfield, expert witness for the Department of Justice.)
In a 1975 article entitled “White Flight Research: Its Importance, Perplexities and Possible Policy Implications,” Dr. Orfield states:
“White Flight as a Triumph of National Housing Policy. The phenomenon described as ‘white flight’ by students of school desegregation is often seen, in another light, from another angle, as a true triumph of the basic tools of U. S. housing policy during the post-World War II period. Facilitating white suburbanization has been a basic goal, explicitly at first and implicitly to this day.”
Dr. Morrison, an expert demographer, testified in a similar vein that federal policies on the interstate highway program, housing and FHA refusal of insurance on inner-city mortgages resulted in white movement to the suburbs and in housing segregation of blacks in the City.
3. Title I.
Following the enactment and implementation of the Elementary and Secondary Education Act of 1965, 20 U.S.C. § 241a et seq. (hereinafter ESEA), a large number of schools were provided and have been operated by the Board with federal assistance. The purpose of this federal program is to “bring better education to millions of disadvantaged youth who need it most” “because of the strong correlation between educational under-achievement and poverty,” as stated in the Senate Report (U.S.Code Congressional and Administrative News, 89th Congress, First Session, 1965, pp. 1446, 1450 and 1449). Federal funds were made available to the Board under Title I of the ESEA for students living in the areas (46 in 1972) of the City which have been declared eligible upon meeting the specified standards of economic disadvantaged conditions of its resident children (federally determined percentage of Aid to Dependent Children (ADC) recipients).
Federal Title I funds are disbursed each fiscal year by the Department of Health, Education and Welfare (hereinafter HEW) to the State of Missouri school authorities. This money is in turn allotted to the individual school district. The Title I programs for the St. Louis school district are developed by the Board and approved by State of Missouri officials and by HEW. Recipients of federal Title I funds are obliged to report to HEW officials respecting Title I projects and programs. The evidence shows that HEW officials have visited and viewed St. Louis Title I projects.
Title I funds are earmarked for services, including, where necessary, the construction of school facilities, for “the special educational needs of educationally deprived children in school attendance areas having high concentrations of children from low-income families.” 20 U.S.C. § 241e(a)(l)(A).
HEW regulations are designed to carry out the policy of Title I. These regulations require that school attendance areas be designated, 9 that certain areas be designated as project areas under Title I, and that the Title I services/project be carried out in the locations best suited to serve the needs of the children.
Most of the eligible areas under Title I criteria in St. Louis are and have been *1325 racially characterized by black predominance. Since the Title I program was started in 1965, the total number of elementary schools designated to receive Title I services ranged from 81 to 98 per school year, with an enrollment of between 86% and 97% black. These Title I schools constitute most of the schools in the system which have a major racial imbalance in their enrollment. In 1977-78, there were 82 elementary schools which received Title I services. 94.8% of the students enrolled in these Title I schools were black. Of the 90 virtually all black elementary schools in 1977-78, 73 were Title I schools.
The evidence shows that in St. Louis, where virtually all of the areas having high concentrations of children from low-income families are black, Title I requirements focusing on poverty and educational needs rather than purely educational needs, which the Board urged should be the main criterion, have led or contributed to the identifiability of a large number of schools as black and in furthering the concentration of black students therein.
The Board has operated Title I programs and built schools with Title I funds according to the following HEW regulation:
Ҥ 116.17 Project covered by an application.
(a) An application for a grant under Title I of the Act by a local education agency (other than a State agency directly responsible for providing free public education for handicapped children or for children in institutions for neglected or delinquent children) shall set forth a project for educationally deprived children residing in a project area composed of school attendance areas having high concentrations of children from low-income families . which project shall have been designed specifically to meet special educational needs of those educationally deprived children. The project itself shall be carried out at locations where the needs of the educationally deprived children can best be served. It may involve the participation of educationally deprived children residing outside the project area if such a participation will not dilute the effectiveness of the project with respect to children residing in the project area.”
45 C.F.R. § 116.17 (1972). 10
This regulation, in essence, required the Board, which needed federal Title I funds to implement remedial programs for educationally deprived children, to spend the Title I funds on children from eligible attendance areas (virtually all black). Although the project need not be carried out in the Title I designated area, the project still had to serve Title I children (virtually all black). Thus, if Title I children were assigned to non-Title I schools, the Title I programs would still have to have been taught separately. This situation would have had the same impact as intact busing. These requirements had the effect of excluding most white children from the Title I programs.
Although § 116.17(a) allows the participation of educationally deprived children not from Title I areas to participate in Title I projects, this allowance is curtailed by the requirement that such participation will not dilute the effectiveness of the Title I project for Title I children. In St. Louis this dilution prohibition effectively excluded non-Title I white students from participating in Title I projects. An example of this prohibition was the Title I funding of two specialized high schools.
Both Work Study and Lincoln were planned as racially mixed specialized high schools, with voluntary attendance by the students. Both were funded under Title I, ESEA. Although the federal requirements limit eligibility of attendance to students living in an area which has been declared a Title I eligibility area, a 10% enrollment from other areas was first permitted in these schools but was later (1972) prohibited by the federal authorities.
Work Study was scheduled to open in 1969, but it was not completed until January 1970. Faculty and administration were racially mixed since the time when they were engaged in the preparation of the *1326 program in temporary facilities, and before the school was opened to the students. By the time the school opened the ratio of the student body was 92.6% black and 7.4% white.
The Lincoln high school was opened in 1966, after the Board acquired and renovated the educational building of Temple Israel for use as an opportunity school for students with special adjustment problems. The student body was composed of 266 black (94%) and 17 white (6%) students. By 1973 all students were black.
The dilution factor is especially important in light of the fact that Title I has not been fully funded by Congress and not all Title I eligible students can receive services. This makes it all the more necessary for the Board to concentrate its funds on the areas having the highest concentration of poverty students. These areas are mostly black.
The prohibition against diluting a Title I project has not been the only barrier to mixing Title I eligible students (primarily black) with other students. As has been stated above, it has been the policy of HEW to restrict the use of Title I funds to eligible students from eligible areas. When students have moved to a non-eligible area, they have no longer been eligible for Title I benefits. The regulations have not indicated (and have, indeed, suggested otherwise) that Title I students moved by a school district to a school in a non-Title I area (when no court ordered desegregation plan was in effect) would continue to be eligible for Title I services. 11
The evidence in the record shows that the Board followed and had to follow the regulations set out by HEW to receive Title I funding, which the Board needed. There is no evidence of any segregative intent by the Board with respect to how Title I funds were used.
G. Resulting De Facto Resegregation.
1. Transitions in the schools.
As a result of the resegregative forces described above, with the resulting massive population movements — out-migration of whites to the suburbs, intra-city migration of blacks — many transitions occurred in the St. Louis public schools. These transitions illustrate the great mobility of both black and white populations. These changes were largely unforeseeable and/or beyond the control of the Board.
The major transition in St. Louis after the Brown decision was the change from a majority white system to a majority black school system. Another major change was the substantial increase in student population (mostly black) in the west and northwest areas of the City and a decrease in enrollment in the southern areas of the City. Much of the white migration from St. Louis was from the west and northwest areas of the City. This white population was rapidly replaced by a larger black population, causing a dense black population in the west and northwest areas of St. Louis.
The intra-city population changes noted above are reflected in the transition of a number of schools from well racially mixed student bodies to virtually all black enrollment (more than 90%). In the 1962-63 school year there were 30 regular elementary schools with black enrollment in the range from 10% to 80%. Of these, 14 reached a black enrollment of over 91% by the school year 1973-74. This transition is shown in the following tabulation:
*1327
An analysis of the statistical data available during the period from 1953 to 1973 shows that of the 24 schools which reached a black pupil enrollment of approximately 50%, 22 increased that ratio to approximately 90% within the average period of 3.59 years, with a minimum of two years for seven schools and a maximum of eight years in the case of one school. Both schools which in 1972-73 had an enrollment still under the 90% level involved special attendance areas: (a) the Stix school’s attendance zone is located in the area around the Hospital group, Kingshighway, the Washington University Medical School and related facilities which enhance the presence of a sizeable number of white families of child-bearing age; and (b) the other school, Waring, represents a unique situation, because of the adjoining controlled integrated neighborhood of Laclede Tpwne and its nature of a demonstration center for Harris Teacher’s College with city-wide optional attendance. 12
Of the 25 public schools of the City which reached a black enrollment of approximately 70%, within the average period of 2.04 years, ranging from one year for five schools to eight years in the case of one school, 24 out of these 25 schools reached the 90% level of black enrollment. The only exception as of 1972-73 was Waring, which was a specifically controlled situation, as previously stated. 13
The record shows that the experience in St. Louis has been that stable integration in a particular school is generally achieved only when the percentage of blacks remains below 50%. When the percentage of blacks in an integrated situation reaches about 50%, what was an integrated enrollment becomes an all black or virtually all black enrollment.
The racial transitions in schools once the student enrollment reaches about 50% black is one major reason for the racial imbalance in the west and northwest area schools. Another reason is the dense concentration of blacks in those areas.
The impact upon the public school system of all of the massive population movements encompassing migration into and within the City and subsequent heavy concentration of blacks in the west and northwest portions of the City, compounded by the major migration of whites from those areas, resulted in staggering problems for the Board, particularly as to planning and capacity.
*1328 Great shifts in population caused some areas to lose much of the school population while other areas gained large numbers of students in a very short period of time. A striking example of this is set out in “Urban Decay in St. Louis” by the Institute for Urban and Regional Studies of Washington University (1972). This report showed that schools in the central section of the City lost up to 35% of their initial population in six months whereas the northwest area gained as much as 25% new students in the same amount of time.
Other examples of student transience are noted by the Board. Superintendent Kottmeyer advised the Board in 1960 that “between the closing of school in June and the opening of school in September one out of every five children in the elementary schools will be residing at a different address and attending a different school.” (Board meeting, April 12, 1960.)
With this pervasive student transience, the Board was faced with the chore of constantly finding new places in schools for students. School enrollments in the west and northwest areas of the City increased beyond the capacity of existing facilities. The Board had the difficult task of planning for space for these students with the uncertainty of where further population shifts might place or dislocate these students.
The result of this problem was an imbalance in school utilization. In January, 1964, Community Resources issued its study “Elementary Education Facilities in St. Louis” which focused on this problem. The study states:
“We recognize that the problem is not one that has been created by any action of the school system. On the contrary it results from earlier difficulties, compounded by the gross and inadequately planned dislocation of the Negro population in St. Louis incident to the development of the Mill Creek program. Nevertheless, it is a problem which must be dealt with by the school system.”
The eventual result of the massive population shifts and changing school enrollments was the resegregation of many schools that were previously integrated.
Resegregation was first noted in the St. Louis schools in 1962 when racial data was again taken [no racial data was recorded from 1954-1962]. In May, 1962, the Committee on Desegregation, chaired by James A. Scott, gave a progress report which noted the socio-demographic dynamics in St. Louis and added:
“[T]his process of neighborhood transformation most frequently culminates in what is popularly called de facto “re-segregation” of previously desegregated schools. . . . These “re-segregated” schools reflect in general the social problems as well as the racial imbalance of the communities they serve.”
This same committee in 1963 noted that discriminatory housing practices impeded the progress of integration and contributed to resegregation in the schools.
Resegregation has continued until the present to the point that the following quote is applicable to St. Louis:
“Thus, while it is important to understand how the process of school and neighborhood resegregation proceeds, it is necessary to point out one inescapable fact: given constant density, a growing minority population that stays within the central city combined with a white population free to move out of the central city will inevitably produce an increasing number of segregated neighborhoods and segregated schools. As Arthur Stinchcombe, Mary McDill, and Dollie Walker note from studying this phenomenon in Baltimore, the city simply runs out of whites with whom blacks can integrate.”
Robert Wegmann, The Future of Big City-Schools (1977), p. 19.
2. Changing pattern in school enrollment (excluding Harris Teacher’s College).
As was noted above, no racial data on students was taken from 1953-54 through 1961-62. When racial data was reinstituted in 1962-63, major changes in school enrollment were noted. During that period the *1329 St. Louis public schools lost 10,291 white students, whereas the total enrollment for the same period increased by 18,770. 14 In 1953-54, blacks accounted for 34.5% of the total enrollment of 89,475, while whites consisted of 65.5% of the total. By 1962-63, blacks had attained the majority in student population, then accounting for 55.4% of the total system of 108,245 students.
From 1962-63 to 1967-68 the student population increased to the all-time high of 116,671 students. During this period approximately 5,066 white students left the St. Louis schools. The black majority increased to 62.9% of the student population.
From 1967-68 to 1971-72, the year this law suit was filed, the student population decreased to 108,680. During this period white student loss was approximately 7,779 and the black majority increased to 67.4% of the students.
From 1971-72 to 1978-79 the student population decreased to 73,222. White loss was accelerated to 16,821 white students over this period. The black majority increased to 74.5%.
3. Racial imbalance in the St. Louis public schools.
The following data pertaining to the years 1972-73, the year this suit was filed, 1975-76, the year the consent decree was entered, and 1978-79 is a summary of the racial compositions of schools in the years indicated.
In 1972-73, the St. Louis City public schools enrolled 105,617 students of whom 72,629 or 68.8% were black. Of the 181 elementary and high schools 15 operating, 148 enrolled 90% or more pupils of one race. Of these 148, 105 had 90% or more black enrollment and 43 were 90% or more white. Furthermore, 52 schools were 100% black and 15 schools were 100% white.
In the 1975-76 school year, when the consent decree was approved, the system enrollment in elementary and high schools was 87,610 students of whom 61,672 or 70.4% were black. Out of the 164 elementary and high schools operating, 133 enrolled 90% or more pupils of one race. Of these, 98 schools were 90% or more black, and 35 were 90% or more white. Also, 58 schools were 100% black and 15 schools were 100% white.
In the present (1978-79) school year, the system enrollment is 73,222 students of whom 54,584 or 74.5% are black. Out of the 157 elementary and high schools operating, 103 enrolled 90% or more pupils of one race. Of these, 88 schools have 90% or more black enrollment, and 15 have 90% or more white enrollment. Also 48 schools are 100% black and 3 schools are 100% white.
In addition to this data, the charts in Appendix A(l-3) show the racial compositions as to each school in the district for the above years.
The evidence shows that although racial imbalance is still present in the St. Louis system, there has been a substantial reduction in the racial isolation of white children.
4. Schools referred to as vestiges.
A certain number of schools which had a one-race enrollment in 1953 are claimed to have maintained virtually the same racial composition ever since. The continuity in the racial characteristics at such schools cannot be established with certainty because of the gap in racial statistics in schools from 1954 to 1962. The number of schools to which this applies is about 34 — 19 “black” schools and 15 “white” schools.
*1330 Of the 19 16 black schools, all have had some white students during the period from 1954 to 1979. The number of these students ranges from about 340 at Henry elementary school in 1961-62 to smaller numbers in other schools. All of these schools have also had some white faculty during the period in issue.
The evidence shows that in the areas of the City where the so-called black vestige schools are located, there have been rapid transmutations and inversions in the racial enrollment caused by the out-migration of whites and the intra-city migration of blacks who replaced those whites. These changes caused racial inversions in the “white” schools in the same area, resulting in virtually all black enrollment at those schools as well. Considering the demographics of the area of the City affecting both former “white” and “black” schools, there is no evidence that any of these 19 black schools are vestiges of a dual system. Rather, one can only conclude that these schools, along with other schools that changed from majority white to majority black and have remained majority black, 17 reflect the preponderance of black population in those areas of the City and the black majority in the school system since 1962.
In addition, all of the so-called black vestige schools have been Title I schools since the inception of that program in 1965. Title I schools are discussed in more detail elsewhere in this opinion.
Of the 15 so-called white vestige schools, all but one have enrolled black students during the period in question. All of these schools have had black faculty. These schools are not vestiges of prior state-imposed segregation.
H. Actions of the Board.
I. Adoption of the neighborhood school system.
Before 1954-55, the neighborhood school was the basis of assignment for all white students. Black children did not have neighborhood schools. With desegregation, the neighborhood school was adopted for all students and has been the basic principle in assigning children to elementary schools.
Under the neighborhood school concept, children in a given neighborhood are first to be seated in their neighborhood school. This concept was regarded by the Board as fostering a closer relationship between the home and the school, providing for the safety of children both in traveling to and from school and easier contact with the home in case of emergencies, and facilitating participation by children in extracurricular activities. Parents are also able to participate and more readily observe their children’s activities.
The neighborhood school is the most common form of assigning students to schools throughout the United States. The concept has many educational values, noted above, as well as economic and administrative advantages. The advantages of the neighborhood school concept are widely, although not uniformly, 18 supported by educators and laymen alike.
In 1962, the Desegregation Committee of the Board, chaired by James A. Scott, reported that in a study of cities over 300,000 people there was near unanimous approval among parents, teachers, citizens, and educational authorities of the neighborhood school. The study stated that:
*1331 “[T]he elementary school should be a neighborhood institution and that everything possible should be done to provide every child adequate school facilities within walking distance of his home.”
The original plaintiffs to this suit, Liddell, et ah, also supported the neighborhood schools in 1971 for the following reasons:
“As concerned parents in the Beaumont/Summer School District, we firmly believe that busing of our children is in direct opposition to the neighborhood school concept; and that busing is harmful emotionally, socially, and educationally to black children.
The black families in north St. Louis are trying to stabilize their neighborhoods. Our neighborhood schools are key factors in this stabilization.” 19
Letter of 1971 to the Board.
The size of a district served by a neighborhood school depends on the number of children residing in an area. In an area where relatively few children live, the geographical boundaries of a district served by an elementary school are apt to be large. The converse is also true — where the population is dense, the school attendance districts will be smaller. It has been noted in a statistical report entitled “The Status of Integration in the St. Louis Public Schools during the 1967-1968 School Year,” prepared by the Staff Committee on Integration of the Board, that:
“Analysis of these reports further indicates that the smaller the geographical unit from which a school receives its pupil population the more uni-racial its student personnel is likely to be.” 20
Some small school attendance districts in St. Louis are the result of dense population in some areas (predominantly black) of the City.
The record demonstrates that the neighborhood school concept has been applied neutrally by the Board as to black and white students since this policy was applied to both races under the unitary school system adopted in 1954-56.
The Board has departed from the neighborhood school concept in the following ways; busing for overcrowding and distance, student transfers, and attendance at city-wide, special, and technical schools. None of these have been used by the Board to depart significantly from the neighborhood school concept.
The neighborhood school policy has been of decisive importance 21 in a host of Board decisions concerning how and where students were and are educated, including decisions as to new school selection, construction, and school additions.
2. Student transfers.
a. Transfers concomitant to desegregation.
Desegregation in 1954-55 and the redrawing of attendance zone lines was accompanied by a student transfer policy (which had been in effect before desegregation) 22 which provided:
“Students already enrolled in a school, but not resident in its new district may, but are not required, to continue at that school until they graduate. This privilege will be granted, however, only if the particular school is not overcrowded.”
This policy was designed to. allow students to remain in the school of their origin in order to complete their graduating requirements rather than transfer schools. This policy applied only to students who had already attended the school in the previous *1332 district and lasted only until the student graduated.
Since no records of the race of students were kept from 1954 to 1962 it is impossible to conclude from the evidence how many students chose to exercise this option and what effect the policy had on desegregation.
Some evidence was offered to indicate that 40% of black high school students chose to remain in their formerly statutorily-designated all black schools and to graduate from those schools. This evidence indicates that 60% of the black high school students chose to attend the previously all white high schools. Had no option been available, it is impossible to know what greater percentage of black students would have been enrolled in interracial high schools.
There is no evidence as to the number of white high school, and white or black elementary students who opted to remain in their former schools to graduate.
b. Permissive transfers.
In 1963 the neighborhood school concept was questioned by some individuals and groups as rigid and not apt to facilitate integration in areas affected by segregative housing. The question was directly addressed by the Citizens Advisory Committee ([CAC] appointed by the Board in 1963 to study various aspects of the school system and to make recommendations to the Board) 23 which recommended adherence to the neighborhood school policy and also further recommended adding the open enrollment concept as another dimension to the basic neighborhood school concept. The Board adopted this recommendation which became known as permissive transfers.
Permissive transfers allow pupils to be enrolled in a different school from that of their neighborhood whenever space is available in the other school. Parents assumed the responsibility of transportation. When the transfer is granted, the pupil is allowed to continue his enrollment in the receiving school until graduation and is eligible to attend the high school of that district. This program, which was adopted on July 26, 1963, applied to a small number of children and has had a very limited effect in fostering further integration.
Policy changes made by the Board on June 14, 1976, were designed to further integration and to facilitate accessibility to schools by providing free transportation to the students.
c. Special transfers.
Transfers from neighborhood schools have also been allowed for such reasons as (1) curriculum not offered at their own school; (2) medical considerations; (3) an older brother or sister attending another school; or (4) employment of a parent in the receiving school’s vicinity.
Charges of abuse have been aimed at the first two categories.
(1) Curriculum transfers — During the period from 1955 to 1962, Soldán high school changed from 74% white to 90% black. German was not offered at Soldán, but was offered at Roosevelt, a southside predominantly white high school. Students wishing to study German could obtain a curriculum transfer to attend Roosevelt. Abuse of this “German transfer” allegedly allowed a substantial number of white students to escape the racially changing Soldán. The substantial number of transferees amounted to a little over four students per year in the years 1957-1961. The largest contingent, 29 transfers for German, occurred in 1962. 24 *1333 No subterfuge could be detected until 1962-63. German was offered as a course at Soldán in 1963-64 to end the subterfuge. The German incident illustrates the Board’s desire not to see transfers abused for racial motivations.
(2) Medical transfers — Charges of abuse concerning medical transfers have been raised in connection with the opening of the then majority white Northwest high school. The Board was aware that such abuses in medical transfers from majority black Beaumont high school to Northwest might take place. Attention was drawn to the matter at a Board meeting and the Board was warned that the requests for medical transfers might be forthcoming and that they would be denied. 25 There is no evidence that the abuses actually occurred. This incident demonstrates that the Board affirmatively guarded against racially motivated abuses of transfers.
There is no evidence that special transfers established any pattern of abused discretion or that they resulted in any significant degree of resegregation.
S. Boundaries and feeder patterns.
As was stated above, the boundaries that were drawn in 1954-55 to effectuate a unitary school system were neutral and nondiscriminatory.
In later years the Board made many boundary changes to meet increasing and/or shifting student populations. Changing school capacities such as those caused by completion of new buildings and additions in some areas of the City and by decreased enrollment and closed schools in others necessitated boundary adjustments.
The policy of the Board in drawing school boundaries was to ensure that every effort was made to secure maximum integration consistent with the following criteria; building capacity, distance, safety from the viewpoint of minimizing traffic hazards and hazardous topographical barriers, and, as to high schools, transportation facilities.
Boundary changes subsequent to the 1954-55 changes were drafted or reviewed by the integration committees of the Board. Some suggested boundary changes were not implemented due to disapproval by these committees.
Although boundary changes were made in accordance with the above stated integration goals, boundaries have had little effect in St. Louis, especially as to elementary schools, because of the City’s demography and racial distribution. 26
The evidence shows that boundaries have not been gerrymandered by the Board. Boundary changes were made in conformance with the Board’s neighborhood school policy.
The issue as to high school boundaries is feeder patterns, or the manner in which elementary school students are assigned to attend the different high schools.
Various specific charges are made that the Board manipulated feeder patterns to achieve desired racial proportions in the high schools. Representative allegations are separately addressed here.
(a) Vashon high school.
In 1955 when dual boundaries were eliminated, the attendance area of the L’Overture and Attacks elementary schools (statutorily black schools under the dual statutory system and black afterwards) were assigned to feed into McKinley high school (statutorily white). The initial set of boundaries resulted in 1,437 whites and 211 blacks attending McKinley in January, 1955.
For the 1955-56 school year parts of the above areas were reassigned to Vashon high school (statutorily black), thus reducing by half the number of blacks going to integrated McKinley and instead going to unintegrated Vashon.
*1334 At the same time, however, attendance areas feeding into Vashon were reassigned to then integrated Central high school. These adjustments in feeder patterns did not materially affect integration.
In 1963-64 Vashon high school was moved from its original building, which became the new site for Harris Teacher’s College, 27 to the former Hadley high school site. This move is charged to have had a segregative impact. Before the move, Vashon was 100% black; afterwards the school was 99.7%. Thus the move had little effect on integration.
(b) Soldán high school.
Between 1956-62 Soldán high school changed from a well-integrated school to a virtually all black school. Plaintiffs charge that manipulation of boundaries contributed to this phenomenal change. The record does not support this charge, but rather shows that the switch was caused by widespread migration of whites out of this area of the City and replacement by black residents.
Soldán became virtually all black (99.2%) in 1962. In 1965-66 (when Soldán was 99.4% black) the Board reassigned Stix elementary school (84.2% white) from Soldán to Southwest high school (99.6% white). A close examination of the evidence reveals that this switch had an integrative impact. Whereas the black percentage at Soldán remained constant, the percentage of black students at Southwest steadily increased, partly as a result of Stix (which became increasingly arid finally majority black) students being assigned to feed Southwest. It is to be noted that when Stix became majority black it was not reassigned to Soldán.
(c) Beaumont and Central high schools.
In 1967-68 the Eliot elementary school (predominantly white) was transferred as a feeder school from Beaumont high school to Central high school. Eliot was originally assigned to feed Beaumont in 1964 when Beaumont was 61.0% black in an effort to protect the biracial enrollment of Beaumont. Eliot was assigned to Beaumont until the 1967-68 school year when the black percentage had increased to 96.2% despite the presence of Eliot students.
At the same time Central’s black enrollment was increasing so that by 1967-68 there was a racial mix of 33.2% black and 66.8% white.
The feeder change had the effect of maintaining a racial mix at Central for some time when any effort at Beaumont was futile. Central became majority black in 1970-71 and is currently virtually all black.
4. Redistricting.
In the two decades from 1954 to 1974 the administrative structure of the public schools of the City has undergone substantial changes, directed to provide a higher degree of decentralization of authority and responsibility at the local administrative level. The system which has been in effect since the school year 1970-71 changed the administrative structure from a horizontal one of separate groups of elementary schools and of secondary schools to a vertical restructure. The system was reorganized into five administrative districts, each headed by a District Superintendent of whom three are black. One of the reasons for the administrative change was to afford new opportunities for improving desegregation through inter-district activities. The new districts were planned to include high schools with different racial compositions.
Each administrative district includes two academic high schools and an approximately equal number of regular elementary schools which become feeder schools for the high school in the geographical boundary in which they are located. These districts are identified by the names of their high schools. In the 1972-73 school year the districts were constituted as follows: Banneker: Central-Vashon District with 25 elementary schools and six branches; McKinley-Roosevelt District with 25 elementary schools and five branches; Cleveland-Southwest District with 28 elementary schools; Beaumont-Sumner District with 21 *1335 elementary schools and 11 branches, and Northwest-Soldan District with 20 elementary schools and 11 branches. In the course of the school year 1972-73 two branches were added to Beaumont and one to Soldán.
5. Transportation.
Busing has been used by the Board as a measure to relieve overcrowding. Students are transported from the overcrowded schools to schools with excess capacity located elsewhere in the district.
Due to the demographic conditions of the City, with heavy overcrowding in schools of predominantly black enrollment and vacant space available in schools with predominantly white enrollment, this busing has consisted mostly of black students going to predominantly white schools. In some instances white students were bused to schools which had a pupil enrollment of more than 90% black.
Busing has not been a favored measure for overcrowding due to opposition by parents of both races and because the value of the neighborhood school is lost. Busing has been shown to be educationally unsound, costly, and disruptive. Busing has therefore been used only when necessary to relieve overcrowding and to a lesser degree for distance problems.
a. Intact busing.
Busing was organized for some time prior to the 1954-56 desegregation plan in self-contained units, otherwise known as intact busing. This method of busing involved transporting entire classrooms of children to a receiving school to be taught as a separate class. The transported classroom was treated as part of the sending school, not of the receiving school. This method of busing was adopted for administrative convenience. 28 time scheduling, and educational reasons.
Implementation of the 1954 -56 desegregation plan and its attendant redistricting relieved much of the overcrowding in both elementary and high schools, and thus in the years immediately following 1954 few pupils were transported. Due to the massive migration of people (mostly black) into the west end of the City, and the failures in 1960 and 1961 of voters to pass bond issues to construct new schools in overcrowded areas, overcrowding became a major problem in the early 1960’s. These students (mostly black) were bused for the most part to otherwise virtually all white schools on the south side of St. Louis.
When busing once again became necessary the Board continued to use the preBrown method of intact busing. Intact busing was applied neutrally as to white and black student classes. White students were transported intact to white schools (as shown in 1963 at the Fremont elementary school. As was recognized in the 1962 Report to the Civil Rights Commission, intact busing was administered without segregative intent: “It may fairly be inferred that segregation in the St. Louis receiving schools has been an adventitious incident of unprejudiced motivations.” (p. 274 of the Report.)
Complaints were raised in 1962 that intact busing resulted in the separation of the transported students from many of the activities of the local students. This separation was alleged to be segregative and discriminatory.
In 1963 the Board voted to terminate the practice, effective in 1964. This action was taken in accordance with the recommendations of the Citizens Advisory Committee and the two Integration Committees of the Board. The change in policy resolved a controversy which had arisen in 1963 between the Board and the NAACP over the segregative impact of the busing policy. The Board had filed a declaratory judgment action in this federal district court for a determination of the intact busing issue. The NAACP filed a countersuit in this same Court charging the Board with constitutional violations concerning intact busing, segregated boundaries and faculties, and other practices that allegedly fostered segrega *1336 tion. Eventually the two actions were consolidated.
In the fall of 1964 new schools financed with the funds of a March, 1962, bond issue became available for occupancy, thus relieving the need for extensive busing. The intact busing system was eliminated and was replaced by block busing.
In October, 1964, the Board and the NAACP moved the Court for dismissal of the consolidated suits. The motions were sustained as no justiciable issues were left to litigate. The NAACP recognized that the issues had been resolved in part; busing of blacks had been reduced to a minimum, intact busing was terminated, faculty integration was proceeding satisfactorily, and other issues had been met in part by the Board.
Busing was reorganized in 1964 into the block method. The city blocks from which the children are transported are regarded for practical purposes as part of the receiving schools. Transported pupils are fully integrated into all classes and activities of the receiving schools.
Busing based on the block method has been used since 1964 when busing has been necessary. The intact method has been disregarded for more than 14 years. 29
The evidence shows that the Board’s defunct intact busing policy had a disproportionate impact on black children, not because of any segregative intent of the Board, but because black children, being from the overcrowded areas, were bused more often than whites.
b. Busing 1964-78.
Despite new school construction in densely populated areas of St. Louis to offset overcrowding, busing has remained necessary for some students.
The charges leveled at the Board with respect to busing after 1964 are as follows: (1) the majority of students bused are black, (2) white students are bused to majority white schools, (3) black students are bused to majority black schools, and (4) black students who are bused to white schools are bused in small enough numbers so as not to disturb the predominantly white characteristic of the schools. The charges will be addressed separately. As a partial backdrop for this discussion the following information is set out.
In the school years 1972-73 and 1973-74, the statistics on the busing program of the Board show the following:
*1337 The black pupils bused for overcrowding in the school years 1972-73 and 1973-74 went to schools with pupil enrollment of the following composition:
Of the 832 white pupils bused for overcrowding in 1972, 48 went to 12 schools with pupil enrollment more than 90% black. Of the 575 white pupils bused for overcrowding in 1973, 27 went to six schools with pupil enrollment more than 90% black.
(1) Black students are more often bused for overcrowding because the schools in the areas of the City from which they are bused have the most serious and persistent overcrowding problem. (Whites are more often bused for distance than are blacks.) It is also to be noted that since 1962 black students have been in the majority in the St. Louis schools. In 1972 when the percentage of black students bused was 75.8%, blacks accounted for 68.8% of the school system.
(2) White students from majority white schools (virtually all are in south St. Louis) who were bused for overcrowding were generally sent to other south St. Louis schools with excess capacity. On close examination of busing routes, nothing was improper about where these students were assigned. White students bused for overcrowding have been bused at times by the Board to virtually all black (90-100%) schools.
The record also shows that schools toward the center of the City which had vacancies were often utilized to further integration. There is also no evidence (and no charge) that white students were bused past black schools with space to other white schools. 30 The converse is also true.
(3) Of the black students transported for overcrowding in 1974-75, 63.7% were assigned to schools having an enrollment 90-100% black. The figure for 1975-76 was 67%.
Black students were bused for overcrowding in 1974-75 to 15 predominantly white schools. The figure for 1975-76 was 13 schools.
Why more busing of black students to white schools did not take place is obvious from reviewing the map of busing routes for 1972-73. The great majority of black students bused are from far north St. Louis. Students that were bused to majority white or south St. Louis schools from that area underwent very long cross-town bus rides. Nothing improper can be inferred from busing students to closer schools. 31
(4) As was noted above, the black students transported to predominantly white schools in South St. Louis were fully integrated into classes at those schools during this period. Transported students were kept in reasonable ratio to the number of local pupils. Plaintiffs charge that the Board operated an informal quota system which limited desegregative transportation *1338 of black students to white schools. The charge is without merit.
The policy of maintaining reasonable ratios of transported pupils to local students, which applied to both a receiving classroom and the receiving school, was based on the following reasons. A reasonable ratio standard would prevent any classroom from becoming overwhelmingly black, thus being susceptible to a charge of “intact” busing with token representation of white students. Transporting a large number of black students out of ratio to local white students would serve only to create majority black schools in south St. Louis. Finally, a great number of transported students in a school neither lends to the overall stability of a school nor to viable desegregation. 32
6. School construction.
The intra-city black migration, and resulting severe overcrowding noted above, were met by the Board not only with the short-range solution of extensive busing, but also with the use of rented premises and portable classroom units. Seventy-seven portable units were in operation in 1961, of which 67 housed entirely or predominantly black pupils. The other 10 portables were used in schools with integrated or predominantly white enrollment. In 1972, 17 schools, with predominantly black enrollment, used 95 portable classrooms on their premises. Furthermore, nonclassroom facilities in several schools with predominantly black enrollment were converted to classroom use, with the effect of increasing the black population of those schools.
Renting of facilities in congested areas was resorted to when feasible. Parents of children in areas where rented space was used favored this method of relief to overcrowding which retained the advantages of neighborhood schools.
For long-term relief of severe overcrowding, the Board resorted to permanent school construction in those areas where, as a re-suit of the northwest and westward intracity migration of the black population, the crowded conditions of the neighborhood exceeded the capacity of the existing schools. In turn, the new constructions and additions to existing schools in those neighborhoods resulted in small attendance zones.
The permanent constructions and additions made by the Board were authorized through a series of bond issues. The 1955 bond issue of $16,395,000 provided funds for 12 elementary schools, additions to O’Fallon and Southwest high schools, and seven school site expansions. The 1962 bond issue, totaling $23,180,000, provided funds for the construction of the new Northwest high school, additions to Southwest and McKinley high schools, 12 new elementary schools, and additions to others.
Both these bond levies for new school constructions or additions were explained to the voters and consistently received the affirmative vote of the predominantly black wards, including those where these improvements were to be located, to a higher degree than that of the City as a whole: in 1955 they ranged from 93% to 97% as compared with a city-wide vote of 83%; in 1962 the range was 79% to 89% as compared with a city-wide vote of 74%.
In a number of instances, in addition to O’Fallon, new constructions, additions and' adaptations of existing buildings for school use were planned by the Board as racially mixed situations:
(A) Northwest high school was planned in 1963 with an estimated percentage of black enrollment of 30%, and a projection of an ultimate increase to 40%. It was opened in 1964 with a student body of 344 black (26.4%) and 957 white (73.6%). It was expanded in 1968 with 12 additional classrooms. At that time the black enrollment was 42%. The increase in black enrollment was thereafter accelerated as follows: 1970, 62.3%; 1971, 78.6%; 1972, 90.4%; 1973, 97.0%; 1978, 98.7%.
*1339 (B) Twelve additional classrooms were constructed in the Central high school in 1968; at that time this school had a 41.6% black enrollment. It became 85.4% black in 1973-74. In 1978-79 the enrollment is 90.9% black.
(C) In 1961 a six classroom addition was built at the Scullin elementary school, which at that time had a racially mixed pupil enrollment. It became 99.1% black in 1966-67.
(D) The Peabody elementary school was planned to serve that integrated housing project in 1956. This racially mixed situation was reflected both as to student body and staff when it opened in September 1956. The first available statistics for 1962 show 746 black (79.6%) and 191 white (20.4%) pupils, and a faculty of 17 black and 10 white. By 1965 the black student body was 90.9% and has been over 99% since 1970.
(E-F) Both Work Study and Lincoln were planned as racially mixed specialized high schools on voluntary attendance by the students. Both were funded under Title I, ESEA. 33 Although the federal requirements limit eligibility of attendance to students living in an area which has been declared a Title I eligibility area, a 10% enrollment from other areas was first permitted but was later prohibited by the federal authorities.
Work Study was scheduled to open in 1969, but it was not completed until January 1970. Faculty and administration were racially mixed since the time when they were engaged in the preparation of the program in temporary facilities and before the school was opened to the students. By the time the school opened the ratio of the student body was 92.6% black and 7.4% white.
The Lincoln high school was opened in 1966, after the Board acquired and renovated the educational building of Temple Israel for use as an opportunity school for students with special adjustment problems. The student body was composed of 266 black (94%) and 17 white (6%) students. By 1973 all students were black.
(G) An example of planning a school in a racially mixed situation which could not be carried out is the projected Carver-Blumeyer elementary school, which was intended to service the integrated Blumeyer housing project. A two year effort by the Board failed because the selection of one site was blocked by a lawsuit, and the Housing Authority did not provide funding and the Board was unable to find other sources for the financing of the second site which was considered.
(H) Originally successful was the elementary school known as Howard Branch which was built in 1958. In 1962 the enrollment consisted of 201 black (58.1%) and 145 white (41.9%). By 1967 it was 93.1% black and has remained over 98% black since 1970.
(I) Metro was established as a specialized high school in 1972 by converting and adapting an existing building. Through special assignment of students furnished by the Board with bus passes, the small enrollment has been successfully controlled with 56 black and 56 white students in 1972 and 74 (52.1%) black and 68 (47.9%) white students in 1973. Metro has maintained a balanced enrollment. In 1978-79 the program enrolled 156 students, of whom 53.8% are black.
The above paragraphs demonstrate that the Board consistently selected, when possible, school sites to promote integration. The evidence also shows that many of the Board’s attempts to maintain integrated schools fell to demographic changes in the City. These changes were not foreseeable by and were beyond the control of the Board.
Much of the new school construction took place in areas of the City with a predominantly black population. Although the Board knew that these areas were predominantly black, 34 the Board also knew that *1340 existing schools in this area were grievously overcrowded and were grossly inadequate in number to serve the community.
Charges of intentional containment in connection with the Board’s construction policy are without merit. 35 The Stipulation of Facts reveals several attempts by the Board to locate integrated schools in fringe areas and areas which were likely to be and which were for a while integrated. These efforts did not enjoy prolonged success due to factors beyond the Board’s control. The construction of new schools in areas of dense population, where the children were, was in conformance with the Board’s neighborhood school policy which the Court finds on an examination of the entire record was supported by the majority of parents, administrators, citizens, and teachers, both black and white. 36 The construction avoided prolonged, extensive, and expensive busing which black parents consistently sought to avoid. 37 The record as a whole supports the Board’s construction policy. 38
The sites chosen for new school construction by the Board do not reflect any segregative intent. There is no evidence in the record that reveals that sites 39 other than those selected would have significantly furthered integration. 40 Sites were selected in response to pressing education and human needs of the time without regard to race. 41
*1341 7. School closings.
From 1955 to 1968 the number of students consistently increased, especially in the heavily black areas of central west and northwest St. Louis. This increase necessitated the building of schools in areas with severe overcrowding. After an all-time high student enrollment in 1967-68, student enrollment has consistently declined.
After 1967-68, new school construction slowed considerably and schools started to close because of declining enrollment. From 1970 to 1978 approximately 30 schools have been closed. Schools were closed by the Board for the sole reason of declining enrollment. The Board has never closed schools (nor is it charged) for racial reasons.
When schools were closed, the Board reassigned students in accordance with the neighborhood school policy so that students would be as close to home as possible. This meant assignment when possible to a contiguous school. When a branch school was closed, students were assigned to the main school in that district when possible. When space in a contiguous school was not available, there were efforts made by the Board to locate space in noncontiguous schools that would enhance integration. 42 Of the seven schools closed at the end of 1976-77, student reassignments were made with efforts toward integration.
When students from schools 90-100% black that were closed have been reassigned to other 90-100% black schools, this was done so that students could continue to receive Title I services. Both the closed and receiving schools were Title I schools or magnet schools.
8. Schools with city-wide enrollment, 43
The Board operates a number of specialized schools which enroll students on a citywide basis, thus achieving the maximum possible degree of integration. Examples are: (a) Harris Teacher’s College, which has been established and operated as the only local facility for the academic preparation of teachers; ’ in the school year 1972-73 it had an enrollment of 1,069, of whom 561 (52%) were black; (b) the technical high school (O’Fallon) which in 1972-73 had an enrollment of 3,308 students, of whom about 68% were estimated to be black; (c) the 13 special elementary schools, which in 1972-73 had an aggregate enrollment of 944 of which 78.3% were black; (d) three special centers for “gifted pupils” with an aggregate 19.6% black percentage of the total enrollment in the school year 1973-74; and (e) the Waring elementary school, which was reorganized in 1965 as a demonstration school interlinked with Harris Teacher’s College, has an open enrollment for students from any area of the City. Students graduating from Waring have the option of attending any high school of their choice. In the school year 1972-73 Waring had a 76.1% black enrollment, inclusive of transported pupils.
Schools with city-wide enrollment are not affected by neighborhood populations. Even this type of student enrollment has not been able to keep balanced racial enrollments. O’Fallon and Waring, which for several years had good records of integrated enrollment, have in recent times become virtually all black schools; O’Fallon, ninth and tenth grades, with 94.3% black students in 1978-79 and Waring with 89.1% black *1342 students in 1976-77, the last year before Waring became a magnet school.
Other schools which have been maintained and operated by the Board include the following with their respective 1972-73 enrollment and racial composition:
(1) Six “specialized high schools,” in which enrollment is open at the election of qualified students. These schobls offer specialized programs only and before 1974 did not offer a full high school curriculum. Beginning in the school year 1974-75, students were eligible to receive regular credits and a diploma from their specialized high school. The specialized high schools are as follows: (a) O’Fallon, discussed infra; (b) Metro, a pilot school without walls where students are offered educational experiences in the community outside the school premises for part of the day; (e)-(d) Martin Luther King and Delmar for mentally retarded; and (e)(f) two specialized high schools for students in poverty areas under Title I ESEA: Work Study for students who are identified as dropout-prone, to provide them with combined on the job training and accredited academic courses sufficient to qualify for graduation, and Lincoln for students with academic and behavior adjustment problems.
These specialized high schools had the following enrollment and racial composition in 1972-73: 44
*0'Fallon students were counted in the racial count of their academic high school for this year.
(2) Thirteen special elementary schools (with separate administrators in charge) designed and operated for pupils with special needs because of physical or mental handicaps or other problems. 45 These schools with their respective racial enrollment as of 1972-73 consist of the following:
*1343
(3) Eighty-two special schools for the mentally retarded, which are housed in rooms located in 82 regular elementary school buildings and are administered by those administrators. These schools had in 1973-74 an aggregate enrollment of 2,699 pupils, of whom 2,087 were black (77.3%) and 612 were white (22.7%). 46
(4) Three special centers for “gifted pupils” in the Busch, Mallinckrodt and Wade Schools, located in south St. Louis. In the school year 1973-74, these centers had an aggregate enrollment of 584 children, of whom 155 (19.6%) were black. 47 Mallinckrodt and Wade are now operated as magnet schools.
a. The Technical high schools.
Before desegregation in 1954-56, there were two technical high schools, Hadley for white students and Washington for black students. In September 1955, all technical ninth graders, both black and white, were sent to Hadley. Desegregation of the upper three grades was accomplished in September, 1956, upon the completion of a new technical high school, O’Fallon. Two new technical high school districts were drawn for the City. O’Fallon was designated to serve a much larger area than Hadley. 48
In 1962 Hadley was 95% black whereas O’Fallon was about 33% black. In 1963-64, pursuant to a recommendation of the Citi *1344 zens Advisory Committee, O’Fallon became the only technical high school for St. Louis. The Hadley school became O’Fallon Branch. Enrollment at O’Fallon and O’Fallon Branch was city-wide. Students had free choice to attend either location. After the consolidation of the technical schools, O’Fallon Branch (formerly Hadley) continued to be overwhelmingly black. O’Fallon eventually became majority black.
Starting in 1968-69, O’Fallon and O’Fallon Branch were used for half day vocational programs only and racial data was kept in the regular high schools which vocational students attended during the other half of the day. In 1977-78, racial statistics became available for full-time O’Fallon ninth graders. Of 946 ninth graders, 91.3% were black. In 1978-79, with statistics available for full-time O’Fallon ninth and tenth graders, of 1,559 students, 94.3% are black.
During the time when O’Fallon and Hadley were operated as two separate districts, some courses were offered at Hadley (Dry Cleaning and Pressing, Shoe Repair, Cafeteria Tea Room Service, Auto Repair) that were not offered at O’Fallon. Likewise, certain courses were offered at O’Fallon (Aero-Mechanics, Advanced Machine Shop, Pre-Engineering, Practical Nursing) that were not offered at Hadley. The different course offerings were designed to obtain maximum use of personnel, to avoid duplication of expensive equipment for the training of students with advanced standing, and to bring together those students with high mechanical and technical aptitudes regardless of race. O’Fallon was the site chosen for the more “advanced” courses because it had the necessary room available and Hadley did not. At this time students desiring to take a course not offered at their technical school could enroll in the other school. 49 Later, O’Fallon and O’Fallon Branch were one district with open enrollment.
No discrimination or segregative intent has been demonstrated with respect to the technical schools. 50
9. Staff,
a. Faculty.
Since 1954, when the Board’s desegregation plan was implemented, the Board’s integration policy regarding its teaching staff has been governed by the following general principles:
1. As always, the tenure rights of certificated (teaching) employees will be preserved.
2. Whenever possible, * * * teaching * * * employees will retain their present assignments. They will be transferred only to meet the needs of the service. 51
3. When vacancies occur, employees will be assigned to fill them on the basis of the competence and adaptability of an employee for a particular assignment.
4. Teachers will be appointed from a single rated list compiled from exami *1345 nation scores, without regard to race or color.
5. Promotions will continue to be made on the basis of merit.
This policy, which was formally reasserted in a July 9,1963, statement of the Board, has been qualified by the efforts of the Board to improve the racial balance in the instructional staff of the schools.
Various educational programs were developed by the Board to prepare teachers for integrated student bodies through preservice educational courses, in-service programs as apprentices in schools of a predominantly different racial composition, as well as seminars, workshops and special courses for teachers and administrators given at Washington and St. Louis Universities. Harris Teacher’s College has provided a number of courses in the problems of desegregation, human relations and black history, and through its demonstration school — Waring elementary school — has offered to prospective teachers a laboratory for quality education in a controlled racially mixed facility.
In the face of a severe teacher shortage in the 1950’s and 1960’s, particularly among black teachers, the Board actively and affirmatively sought out and hired black teachers. 52 In more recent years an increasing shortage of black teachers has been encountered at the high school level. This shortage is due in part to increased competition in employment opportunities with industry, government, and other school districts and colleges. Teachers appointed in the 1972-73 school year received their training in 30 different states.
In the decade from 1962 to 1972 the following changes occurred in the racial composition of the classroom teaching staff of the St. Louis public schools:
Year White Black Total
1962 1,804 (53.7%) 1,555 (46.3%) 3,359
1970 1,798 (46.6%) 2,060 (53.4%) 3,858
1971 1,823 (45.7%) 2,164 (54.3%) 3,987
1972 1,837 (46.4%) 2,128 (53.6%) -3,965
1973 1,638 (44.4%) 2,052 (55.6%) 3,690
To improve the racial balance of the teaching staff in the schools, the administration has endeavored to assign new teachers to schools having a pupil enrollment predominantly of the race other than that of the teacher, and encouraging transfers on a voluntary basis and through persuasion in the case of teachers with tenure. No compulsory transfer of teachers to achieve racial mixing was ordered by the Board. 53 Teachers’ seniority has traditionally been protected against involuntary transfers, which have remained limited to cases of decrease of teacher services in a school, and of unsatisfactory ratings. The evidence shows that the Board’s failure to implement *1346 mandatory teacher transfers was done in good faith without any segregative intent.
In fact, the reluctance on the part of some principals to have on their faculty personnel of the other race, and similar resistance on the part of some teachers and certain sections of the community have limited the degree of racial mixing of school faculties. 54 In spite of the efforts of the Board to improve the racial balance of the teaching staff in the schools of the system, in a large number of instances the faculty and local administrators in the regular elementary schools follow the racial pattern of the neighborhood where the school is located.
In a number of schools, however, the racial composition of the faculty did not mirror that of the students. The following examples apply to 1962-63:
*Those schools marked with an asterisk enrolled black students primarily as a result of intact busing. Even in this situation, black faulty was not closely matched to the black student population.
*1347 Where the evidence in the record demonstrates that faculty composition reflects or reflected the racial composition of the student body, there is and was minimal or no influence on the racial composition of the school. Where schools underwent drastic changes in racial composition, the change in faculty composition followed rather than preceded student changes. Racial identifiability of schools is not now and was not in the past a result of the Board’s failure to mandatorily achieve more racially balanced faculty. 55
Racial identifiability of schools in St. Louis is and has been the result of the City’s demographies. The following finding from Brinkman v. Gilligan, 446 F.Supp. 1232, 1239 (S.D.Ohio, 1977), rev’d 583 F.2d 243 (6th Cir. 1978), cert, granted sub nom. Dayton Board of Education v. Brinkman, - U.S. -, 99 S.Ct. 831 , 59 L.Ed.2d 31 (1979), is applicable to St. Louis:
“Many of plaintiffs’ witnesses asserted that the placing of black teachers in all-black schools had the effect of identifying that school as being black, thus impacting black children into black schools. .
“The Court believes the evidence to be to the contrary. In every specific instance brought to the Court’s attention in which black faculty were assigned to black schools, the school was already identifiable as being black because of the racial population of the students.”
Between 1962 and 1972, the Board reduced the number of regular elementary schools without black faculty from 50 to 30, and of the regular elementary schools without white faculty from 47 to 27. The number of high schools with one race faculty was decreased from 3 to 0.
In 1973 the regular elementary schools with all white faculty were reduced from 30 to 26. In the course of this school year there was a further reduction to 25.
The Board’s efforts culminated in the adoption of the Balanced Staff Policy statement of the Board of July 10, 1973. With consideration for the factors of competency, sex, experience, and age, this policy stages that the basic and guiding principle of the St. Louis public schools is “to maximize racial representation among its staff members at all levels and in all job classifications.” A three year schedule of implementation was projected by the Board.
During the years of implementation of the Balanced Staff Policy from 1973 to 1975, when the consent decree was entered, 139 teachers were transferred, 186 new teachers were assigned, and 45 administrators were transferred, for a total of 370, all to further racial balancing in accordance with the Board’s policy. After the Balanced Staff Policy was adopted, applicants for teaching positions have not been employed unless they accepted an assignment to a school which was predominantly the other race.
Since 1975, when the consent decree was signed, the Board’s policy in assigning teachers has been governed by paragraph 5 of that decree. Under paragraph 5, 10% in 1976- 77, 20% in 1977-78, and in 1978-79, 30% of the teachers at each school would be of the race that was in the minority at that particular school.
The process of compliance with paragraph 5 in the school years 1976-77 and 1977- 78 has been achieved, notwithstanding some resistance from part of the staff to the mandatory transfers which were necessary to implement the decree. Implementation in 1978-79 is in the process of being carried out. The mandatory assignment of staff under the consent decree has been effective in eradicating racial imbalance in faculty representation at all schools. The actions taken pursuant to the consent decree have fully remedied any past deficiency in staff assignments.
b. Non-certificated personnel.
Policies similar to those for teachers have governed the employment and promotion of *1348 non-certificated personnel since 1954. On October 13,1961, the hiring of non-certificated employees of the Board was placed under a centralized Merit System administered by the Superintendent of Instruction (later named Superintendent of Schools). In 1953 the percentage of black noncertificated employees was 16.7%. That percentage rose to 31.5% in 1963 and 61% in 1973.
Considering the aggregate of all employees, the Board has employed black personnel in a greater percentage than that of the adult black population in St. Louis.
c. Administrators.
Between 1962 and 1972 the Board increased black representation among its administrators from 33.2% to 59.6%. In 1976, 60.4% of the administrators were black.
In the decade from 1962 to 1972, more blacks than whites have been placed in high administrative positions with the Board, with the result that the number of blacks in those positions has increased from 5 (16.1%) in 1962 to 15 (44.1%) in 1972, compared with 26 (83.9%) whites in 1962 and 19 (55.9%) in 1972. Among the high positions occupied by blacks in 1972 were those of Deputy Superintendent (who was Acting Superintendent in 1971-72), Assistant to the Superintendent, Acting Director of Personnel (who was promoted to Director in 1973), Fiscal Control Officer, and Director of the Division of Curriculum Services.
As a result of the Balanced Staff Policy of July 10, 1973, 27 administrators were transferred to positions or locations which improved the racial mixture in each of those situations. Included were the assignments of a black district superintendent to the McKinley-Roosevelt district which is a district with a number of elementary schools having a completely white enrollment, and a white superintendent to the Northwest-Soldan district, which has a predominantly black attendance. At the level of elementary school principals, several assignments were made to provide representation of personnel of the race different from that of the majority of the staff and student body of those schools. In 1976 three of the five district superintendents were black.
d. Pupil-teacher ratio. •
The average pupil-teacher ratio has been progressively reduced over the years by the Board: from 36 pupils in the regular elementary schools in 1955 to 31 in 1971 and thereafter, to 27 in the academic high schools. These are averages and there are variations from school to school. During the year 1972-73 the average pupil-teacher ratio in the regular elementary schools having a black enrollment of between 90% and 100% was 30.2:1, while the ratio in the regular elementary schools with the opposite white enrollment was 31.2:1. Schools having less than 90% one race enrollment showed a pupil-teacher ratio of 30.4:1.
Comparable analysis and figures for the academic high schools in 1972-73 are as follows: the pupil-teacher average ratio was 25.8:1 in the academic high schools having an enrollment of between 90% and 100% black students, 26.7:1 for the academic high schools with comparable white enrollment and 23.4:1 in the high schools with less than 90% of either race.
A lower pupil-teacher ratio is found in the eight elementary schools of rooms of 15 and in each of the special elementary schools, where the ratio is 20 pupils per teacher, and 35 pupils in the instances where there are two teachers in the room. In the aggregate, the pupil population of these schools is predominantly black.
The pupil-teacher ratio in the six specialized high schools (exclusive of O’Fallon, whose students were counted in their academic high school) based on the averages for the first semester 1972-73 shows the following.
*1349
10. Curriculum and facilities,
a. Curriculum.
Over the years, after studies of, and upon the recommendations of its Committees on Integration, the Board has taken steps to (a) eliminate from the materials used in its schools pictures and expressions which were objectionable in terms of adverse racial implications, (b) promote black studies as an integrated aspect of the total curriculum for all children, and (c) provide special courses of black studies as part of the elective offerings in the academic high schools.
In the regular elementary schools, the instructional curriculum is the same for each school throughout the City, with the following exceptions: (a) the three gifted student centers have had their own programs, and (b) special remedial reading courses are provided in various schools. In the school year 1972-73 these programs were given in 71 schools by a total o

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9321395. Public record. Not legal advice.