Appendix — Board of School Comm'Rs. v. Buckley

76-5208

iN THE

Supreme Court of the Gn

OcToBER TERM, 1976.

No.

THE BOARD OF SCHOOL COMMISSIONERS OF THE CITY OF

INDIANAPOLIS, et al.,

Petitioners,

vs.

DONNY BRURELL BUCKLEY and ALYCIA MARQUESE BUCKLEY,

by their parent and next friend, Ruby L. Buckley, on behalf of themselves

and all Negro school age children residing in the area served by the original

defendants; UNITED STATES OF AMERICA; THE METROPOLITAN

SCHOOL DISTRILT OF DECATUR TOWNSHIP, MARION COUNTY,

INDIANA; THE FRANKLIN TOWNSHIP COMMUNITY SCHOOL

CORPORATION, MARION COUNTY, INDIANA; THE METROPOLI-

TAN SCHOOL DISTRICT OF LAWRENCE TOWNSHIP, MARION

COUNTY, INDIANA; THE METROPOLITAN SCHOOL DISTRICT OF

PERRY TOWNSHIP, MARION COUNTY, INDIANA; THE METRO-

POLITAN SCHOOL DISTRICT OF WARREN TOWNSHIP, MARION

COUNTY, INDIANA; THE METROPOLITAN SCHOOL DISTRICT OF

WAYNE TOWNSHIP, MARION COUNTY, INDIANA; THE METRO-

POLITAN SCHOOL DISTRICT OF WASHINGTON TOWNSHIP,

MARION COUNTY, INDIANA; THE SCHOOL CITY OF BEECH

GROVE, MARION COUNTY, INDIANA; THE SCHOOL TOWN OF

SPEEDWAY, MARION COUNTY, INDIANA; OTIS R. BOWEN, as

Governor of the State of Indiana; THEODORE SENDAK, as Attorney

General of the State of Indiana; HAROLD H. NEGLEY, as Superintendent

of Public Instruction of the State of Indiana; THE INDIANA STATE

BOARD OF EDUCATION, a public corporate body; INDIANA STATE

TEACHERS ASSOCIATION; THE HOUSING AUTHORITY OF THE

CITY OF INDIANAPOLIS,

Respondents.

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

SIGMUND J. Bex

JAMES W. BEAi;

Joun Woop,

BAMBERGER & FEIBLEMAN,

500 Union Federal Building,

Indianapolis, Indiana 46204,

(317) 639-5151,

Aitorneys for Petitioners.

Gunthorp Warren Printing Company. Chicago e Financial 66565

Supreme Court of the Gnited States

OcToBER TERM, 1976.

THE BOARD OF SCHOOL COMMISSIONERS OF THE CITY OF

INDIANAPOLIS, et al.,

Petitioners,

vs.

DONNY BRURELL BUCKLEY and ALYCIA MARQUESE BUCKLEY,

by their aco! age chien veg in the rex wrved by the go

and all children residing in wn area served

defendants; ATES OF ; THE MET OPO AN

SCHOOL pisTmicr OF DECATUR TOWNSGIP. MARION COUNTY,

INDIANA; THE FRANKLIN TOWNSHIP COMMUNITY SCHOOL

CORPORATION, MARION COUNTY, INDIANA; THE METROPOLI-

TAN SCHOOL DISTRICT OF LAWRENCE TOWNSHIP, MARION

COUNTY, INDIANA; THE METROPOLITAN SCHOOL DISTRICT OF

PERRY TOWNSHIP, MARION COUNTY, INDIANA; THE METRO-

POLITAN SCHOOL DISTRICT OF WARREN TOWNSHIP, MARION

COUNTY, INDIANA; THE METROPOLITAN SCHOOL DISTRICT OF

WAYNE TOWNSHIP, MARION COUNTY, INDIANA; THE METRO-

POLITAN SCHOOL DISTRICT OF WASHINGTON TOWNSHIP,

MARION COUNTY, INDIANA; THE SCHOOL CITY OF BEECH

GROVE, MARION COUNTY, INDIANA; THE SCHOOL TOWN OF

SPEEDWAY, MARION COUNTY, INDIANA: OTIS R. BOWEN, as

Governor of the State of Indiana; THEODORE SENDAK, as Attorney

General of the State of Indiana; HAROLD H. NEGLEY, as Superintendent

of Public Instruction of the State of Indiana; THE INDIANA STATE

BOARD OF EDUCATION, a public corporate ; INDIANA STATE

TEACHERS ASSOCIATION; THE HOUSING A ORITY OF THE

CITY OF INDIANAPOLIS,

Respondents.

INDEX.

PAGE

Appendix A: Opinions Below .................0005. Al

Court of Appeais—Majority ................... Al

Court of Appeals—Dissent .... ............... A26

District Court—Memorandum of Decision ........ A36

District Court—Judgment .............000008s A47

District Court—Memorandum of Decision (July 20,

TOCED cncednnds cbhatdeddccecenweecranchancs AS1

District Court—-Supplemental Memorandum of De-

cision (December 6, 1973) ........--000e000: A95

Appendix B: Judgment Sought To Be Reviewed ....... All4

Appendix C: Amended Complaint of Intervening Plain-

GE cccccsecccccdonncesssodnndesegeadeceness A115

Appendix D: Constitution and Statutes .............. A122

Constitutional Provision:

United States Constitution, Fourteenth Amend-

Mee BE ccecccevtéensdsceessnescedées A122

Federal Statute:

ee Gs Ge BD EGEE cece cdsccccescoctccees A122

ST as Ge BE POED cocecoceccconcesdncese A123

SOG. B&G. 8 UVES ccvceccccccccossovsess A124

SOG. & GC. OEPED ccccciccccsccedvccsess A124

SOS, GB CG. OS TGES occecccccccapecccevess A125

SOC. BCS. BGR coccccccveccccecccsde’ A125

OT. BS. 8 UGES ecccccccecdcvsocesesss A126

Indiana Statute:

Indiana Acts 1974, P. L. 94, Codified as I. C.

DC. ses ceneesetediecsotdnadear A126

Al

APPENDIX A.

OPINIONS BELOW.

In THE UNITED STATES CouRT OF APPEALS

For the Seventh Circuit.

Nos. 75-1730 through 75-1737, 75-1765, 75-1936, 75-1964,

75-1965, and 75-2007 |

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

Donny BRURELL BUCKLEY, ALYCIA MARQUESE BUCKLEY, by

their parent and next friend Rusy L. BUCKLEY, on behalf of

themselves and all Negro school age children residing in the

area served by the original defendants herein,

Intervening Plaintiffs-A ppellees,

vs.

BoarD oF SCHOOL COMMISSIONERS OF CITY OF INDIANAPOLIS,

INDIANA, et al.,

Defendants-A ppellants.

Appeals from the United States District Court for the Southern

District of Indi Indi lis Divisi

No. IP-68-C-225

S. Hucu DiLun, Judge.

Argued December 3, 1975—-Dezided July 16, 1976

Before FAIRCHILD, Chief Judge, SwyGeErT and Tone, Circuit

Judges.

A2

SwyGERT, Circuit Judge. This is the third review of succes-

sive desegregation orders in a suit brought in 1968 by the

United States against the Board of School Commissioners of

the City of Indianapolis. The issue before us, as in Milliken v.

Bradley, 418 U. S. 717 (1974), concerns the appropriate exer-

cise of federal equity jurisdiction. The district court found two

violations of the Equal Protection Clause upon which it based

the interdistrict remedies that are at issue on this appeal. The

first was the failure of the state to extend the boundaries of

the Indianapolis Public School District (IPS) when the munici-

pal government of Indianapolis and other governmental units in

Marion County, Indiana, were replaced by a consolidated

county-wide government called Uni-Gov. The second violation

was the confinement of all public housing projects (in which

98 percent of the residents are black) to areas within the

boundaries of the City of Indianapolis.

On the basis of these violations the district court determined

that a limited interdistrict remedy would be appropriate. The

court ordered a transfer of black IPS students in grades 1-9

to suburban school districts (except two) within Marion County

in such number as to cause the total enrollment of pupils

in the suburban schools to be 15 percent black after the transfer.

The district court also enjoined the Housing Authority of

the City of Indianapolis from constructing any future public

housing projects inside the boundaries of IPS and from renovat-

ing a housing project known as Lockefield Gardens for other

than elderly persons.

On the basis of the entire record and the findings of the

district court, we affirm.

The History of the Case

The history of this litigation was described in our most recent

opinion, United States v. Board of School Commissioners of

A3

City of Indianapolis, Indiana, 503 F. 2d 68, 71-75 (7th Cir.

1974), cert. denied, 421 U. S. 929; nonetheless, a brief summary

is appropriate.

There have been four phases in this suit. In /ndianapolis 1

the sole issue was racial segregation within the schools in the

Indianapolis Public School District. Judge Dillin, after noting

Indiana's official policy of school segregation until 1949, re-

viewed the conduct of IPS since that year and found the school

district guilty of de jure segregation. United States v. Board of

School Commissioners of City of Indianapolis, Indiana, 332

F. Supp. 655 (S. D. Ind. 1971).

The court then ordered the United States to add as defendants

other school districts in the metropolitan area in order to provide

the proper setting for consideration of the appropriateness of a

metropolitan remedy. The Government complied with the order.

The Buckley plaintiffs, representing a class of black school

children, were granted permission to intervene. They joined as

defendants several state officials and additional school districts.

On appeal this court affirmed, finding that there was a clear

pattern of purposeful discrimination in the gerrymandering of

school attendance zones, in the segregation of faculty, in

the use of optional attendance zones among the schools, and in

school construction and placement—a “[P]attern of decision

making which . . . reflected a successful plan for de jure segrega-

tion.” United States v. Board of School Commissioners of City

of Indianapolis, Indiana, 474 F. 2d 81, 84-88 (7th Cir. 1973),

cert. denied, 413 U. S. 920.

After remand from this court, the district court in Indianapolis

II took up the problem of fashioning a remedy. One of the issues

at trial was the constitutionality of the Uni-Gov Act. The court

ordered a remedy without reaching this question. The court

found that a meaningful permanent desegregation plan could

not be accomplished within the boundaries of IPS, based upon

evidence that when the percentage of blacks in a given school

A4

approaches 25 to 30 percent white flight accelerates, resulting in

resegregation. United States v. Board of School Commissioners

of City of Indianapolis, Indiana, 368 F. Supp. 1191 (S. D. Ind.

1973). The court further found that the State of Indiana, its

officials, and agencies by various acts and omissions promoted

segregation and inhibited desegregation within IPS, so that the

state which was ultimately charged under the Indiana law

with the operation of its public schools had a continuing affirm-

ative duty to desegregate the Indianapolis school system.

The court then ordered a broad interdistrict remedy which

encompassed the entire metropolitan area including school dis-

tricts outside of Marion County. The court held it was the duty

of the state, through its General Assembly, to devise its own

plan of desegregation, with the understanding that if it failed to

do so within a reasonable time the court would have the

authority and duty to formulate its own plan. As interim relief,

the court ordered IPS to effect pupil reassignment for the 1973-

1974 school year sufficient to bring the number of black pupils

in each of its elementary schools to approximately 15 percent.

In response to the court’s order for the interim relief, IPS

submitted a desegregation plan. The court rejected it as inade-

quate and appointed a two-member commission to develop a

plan. This plan was approved by the court and has been imple-

mented. The district court also ordered IPS to transfer to certain

defendant school districts a number of black pupils equal to 5

percent of the 1972-1973 enrollment of each transferee school

(with certain exceptions). (This portion of the order was stayed

incident to subsequent proceedings.) United States v. Board of

School Commissioners of City of Indianapolis, Indiana, 368

F. Supp. 1223 (S. D. Ind. 1973).

In Indianapolis III the court issued a supplementary opinion

in which Judge Dillin proffered recommendations to the State

of Indiana for implementing a desegregation plan. In response,

the General Assembly adopted a bill that provides for the adjust-

AS

ment of tuition among the transferor and the transferee districts

and for the reimbursement of transportation costs by the state

whenever a federal or state court makes certain findings.’

On appeal from Indianapolis II and Indianapolis III this

court, besides affirming the commission’s interim IPS plan,

affirmed the district court’s holding that the State of Indiana, as

the ultimate body charged with responsibility of operating its

public schools, “[H]as an affirmative duty to assist the IPS

Board in desegregating IPS within its boundaries . . . .” United

States Vv. Board of School Commissioners, 503 F. 2d 68, 80 (7th

Cir. 1974), cert. denied, 421 U. S. 929. This court, however, in

accordance with Milliken v. Bradley, 418 U. S. 717 (1974),

reversed the district court’s order pertaining to the interdistrict

remedy as to those school districts outside of Uni-Gov (Marion

County). That portion of the order pertaining to the interdistrict

remedy within Uni-Gov was vacated and remanded for further

proceedings. We said:

The district court should determine whether the establish-

ment of the Uni-Gov boundaries without a like reestablish-

ment of IPS boundaries warrants an interdistrict remedy

within Uni-Gov in accordance with Milliken. 503 F.2d

at 86.

1. The Indiana Statute, Acts 1974, P. L. 94, § 1; I. C. 1971,

20-8.1-6.5-1, Burns Ind. Stat. Ann. § 28-5031 (1971), provides in

pertinent part:

This chapter applies solely in a situation where a court of the

United States or of the State of Indiana in a suit to which the

transferor or transferee corporation or corporations are parties

has found the following: (a) a transferor corporation has

violated the equal protection clause of the Fourteenth Amend-

ment to the Constitution of the United States by practicing

de jure racial segregation of the students within its borders; (b)

a unitary school system within the meaning of such Amendment

cannot be implemented within the boundaries of the transferor

corporation, and (c) the Fourteenth Amendment compels the

Court to order a transferor corporation to transfer its students

for education to one or more transferee corporations to effect

a plan of desegregation in the transferor corporation which is

acceptable within the meaning of such Amendment.

A6

On remand, in Indianapolis IV (unreported opinion), the

district court held another evidentiary hearing on Uni-Gov and

housing practices within Marion County. In regard to Uni-Gov

Judge Dillin found:

The evidence clearly shows that at the time of the

passage of the Uni-Gov Act in 1969, various annexation

plans and school consolidation plans had bogged down on

the local level because of the aforementioned opposition of

the suburban school corporations within Marion County,

and their patrons... . When the General Assembly [which

under state and federal law had a duty to alleviate segrega-

tion in IPS] expressly eliminated the schools from con-

sideration under Uni-Gov, it signaled its lack of concern

with the whole problem and thus inhibited desegregation

[sic] IPS.

Referring to the suburban Marion County units of government,

he stated:

They have resisted school consolidation, they resisted civil

annexation so long as civil annexation carried school an-

nexation with it, they ceased resisting civil annexation only

when the Uni-Gov act made it clear that the schools would

not be involved. Suburban Marion County has resisted the

erection of public housing projects outside IPS territory,

suburban Marion County officials have refused to cooperate

with HUD on the location of such projects, and the customs

and usages of both the officials and inhabitants of such

areas has [sic] been to discourage blacks from seeking to

purchase or rent homes therein, all as shown in detail in

previous opinions of this Court.

With respect to the public housing authorities the district judge

said:

The evidence is undisputed that each and every public

housing project constructed and operated by the added

defendant HACI is located within IPS territory, in some

instances just across the street from territory served by one

of the added defendant school corporations. Each of such

’

-*

A7

locations was approved—in some instances selected in the

first place—by the added defendant Commission. The latter

institution has had county-wide zoning jurisdiction at all

times during the construction of 10 out of the 11 public

housing projects for families, and HACI has at all times

had the authority to erect public housing within the City

of Indianapolis, and within five miles of the corporate limits

of such city. The residents of said public housing projects

are approximately 98% black (except in projects for the

elderly), and their children all attend school in IPS. The

location of these housing projects by instrumentalities of the

State of Indiana has obviously tended to cause and to

perpetuate the segregation of black pupils in IPS territory.

Based on these findings and those set forth in his former

opinions, Judge Dillin ruled that an interdistrict remedy was

necessary to effect desegregation within IPS. He again found that

if desegregation were limited to IPS, schools within IPS would

become 42 percent black, and that this percentage exceeded the

“tipping point” at which resegregation would occur. He com-

mented: —

The Court of Appeals has called the attention of this

Court to the rule of law that “white flight” is not an

acceptable reason for failing to dismantle a dual school

system. 503 F.2d 80, citing United States v. Scotland Neck

City Board of Education, 407 U.S. 484, 491, 92 S.Ct.

2214, 2218, 33 L.Ed.2d 75 (1970). However, it does not

follow that this Court must ignore the probability of white

flight in attempting to formulate guidelines for IPS to

follow in accomplishing the final desegregation of its

schools. In other words, as this Court sees it, white flight

may not be used as an excuse for inaction; it may, however,

supply the reason for a particular kind of action.

Judge Dillin therefore ordered the transfer of 6,533 students

from IPS to other school districts in Marion County. An addi-

tional 3,000 students were to be transferred in the second year

of the plan, raising the proportion of black students in the

A8

suburban schools to 15 percent.* No transfers were ordered to

Washington and Pike Townships, which already had black popu-

lations of 12 and 4 percent. The district court also enjoined the

Housing Authority from building any more family housing

projects in IPS territory and from renovating an all black project

called Lockefield Gardens. Finally, the Buckleys were awarded

attorneys’ fees under 20 U. S. C. § 1617.

All the defendants have appealed. The defendants other than

the Housing Authority challenge the interdistrict transfers

ordered by the district court. The Housing Authority challenges

the injunction against it. On the other side, the Buckleys, to-

gether with an amicus curiae, the Coalition for Integrated Edu-

cation, argue for affirmance of the district court order. The

United States argues that the finding of interdistrict violations

should be sustained but seeks modification of the portion of the

order calling for mandatory interdistrict transfers of students. It

argues for affirmance of the injunction against the Housing

Authority.

II

Facts Pertinent to This Appeal

A. Residential and School Demography of Marion County

In 1969 when Uni-Gov was created, 95 percent of the blacks

in Marion County lived in Indianapolis. Only about 50 percent

of the whites in the county lived in the city. The black popula-

tion continues to grow within the core city as reflected by the

ratios in the schools. The percentage of black students in IPS

increased from 36 percent in 1968 to 42 percent in 1975. The

1974-1975 black/white ratio in IPS was 57.22 percent white

sand 42.16 percent black. On the other hand, the overall ratio in

Marion County was 74.87 percent white and 24.40 percent

2. IPS will be obligated to pay the suburban school districts the

cost of educating the transferred pupils. See supra, n. 1.

A9

black.* For the years 1974-1975 the racial composition of the

suburban school districts within Marion County was as follows:

Percentage of Percentage of

Township White Black

Decatur 99.83 9

Franklin 99.35 54

Lawrence 95.50 2.9

Perry 98.64 .23

Warren 98.61 .73

Wayne 97.87 1.19

Beech Grove 99.64 .04

Speedway 99.10 72

B. Uni-Gov

Until 1969 the boundaries of IPS corresponded roughly to

the boundaries of the City of Indianapolis, and the other Marion

3. The black population in Marion County is reflected by the

following map. "

1973

Percentage of Black Residents in Marion County

(Percentage of Black Students in Marion County Schools)

asst

pewrnvrewreere

Lig s ALS BLA t Lt aL BLAS BL hd

Ash «

Al0

County school districts were truly suburban. In 1969, however,

the so-called Uni-Gov Act, which is officially titled the

“First Class Consolidated Cities and Counties Act,” Acts 1969,

ch. 173, § 101; I. C. 1971, 18-4-1-1 et seq., Burns Ind. Stat.

Ann. §§ 48-9101 et seq. (1971), transformed Marion County

into a consolidated metropolitan government. School districts

were specifically excluded from Uni-Gov.

Uni-Gov is governed by a mayor and council. Its purpose

was to efficiently reorganize civil government within Marion

County. Previously, there had been a splintering of govern-

mental responsibility into loosely controlled agencies with

overlapping jurisdictions. Uni-Gov has succeeded to most of the

functions of county government and of numerous special service

districts. It has also succeeded to the functions of the City of

Indianapolis and provides municipal services such as police

and fire protection within the approximate area of the old city.

The Act contains provisions for expanding the areas in which

Uni-Gov delivers these municipal services. See, e.g., I. C. 1971,

18-4-12-36 (fire district); I. C. 1971, 18-4-12-8 (police

district).

Uni-Gov has not, however, replaced all existing governmental

units in Marion County. For example, the airport authority, the

county courts, the building authority, and the hospital corpora-

tion were excluded from Uni-Gov. The so-called “excluded

cites” of Speedway, Perry, and Lawrence retain their own local

governments which provide municipal services in those areas.

Nonetheless, Uni-Gov has significant powers even in the ex-

cluded cities. It is in charge of air pollution regulation, building

code enforcement, and municipal planning and thoroughfare

control. Moreover, the citizens of the excluded cities vote in

Uni-Gov elections.

C. History of Public Housing

Between 1966 and 1970 the Housing Authority built and

opened for occupancy ten housing projects for low-income

All

families. These and Lockefield Gardens, which was built during

the depression, are the only public housing projects for family

occupancy in Marion County, although other forms of sub-

sidized housing are available. All ten projects were built within

the boundaries of IPS. These projects opened with 50 to 75

percent black occupancies and are now 98 percent black.

The Housing Authority was authorized under state law to

construct projects within Indianapolis and within five miles of

the city’s boundaries. Federal funding could be obtained only

if the Housing Authority entered into a cooperation agreement

with the municipality or other civil governmental entity having

jurisdiction over the territory in which it desired to build. The

City of Indianapolis entered into a cooperation agreement with

the Housing Authority, but no other governmental entity in

Marion County did so, even though the Housing Authority

approached the county commissioners about an agreement.

Since 1969, when Uni-Gov became effective, the Housing

Authority has apparently had the authority to construct projects

outside the old city limits, except in the Towns of Speedway,

Lawrence, and Beech Grove, without the need for cooperation

agreements. No housing projects have been commenced within

or outside IPS since that time nor are any planned. The record

does not show why. There are presently pending applications for

approximately 3,000 families.

The Housing Authority argued that suitable sites did not

exist outside the City of Indianapolis because services such as

public transportation would have been unavailable. There was

evidence, however, that these services could have been arranged.

The evidence showed that public transportation routes could

have been extended to areas of demonstrated need, that food

stamp distribution offices could have been established at the

projects, that sewage services could have been obtained by con-

tract with the city, and that police and fire protection could have

been obtained from the city.

Al2

Six of the housing projects are on the IPS boundary lines

or within a few blocks thereof. For example, Clearstream

Gardens was located on the IPS side of a street which divided

IPS and Warren Metropolitan School District. A witness for the

Housing Authority under questioning by the district court, was

unable to state why, “from the standpoint of these criteria you

mentioned,” there was “any difference at all between the location

on the east side or the west side of Emerson Avenue.” The

other projects and their locations are set forth below.* These

projects contain between 900 and 1,000 family units and house

a substantial number of black school children.

D. History of School District Boundaries

Until 1969, under a variety of laws which are discussed below,

the IPS boundaries were largely coterminous with the city

boundaries. Under a 1931 act, the boundaries of IPS were

made coterminous with those of the city. Acts 1931, ch. 94,

$1; I. C. 1971, 20-3-11-1, Burns Ind. Stat. Ann. § 28-2601

(1971).° Until 1959, boundaries of school districts and munici-

palities were also coterminous elsewhere in Indiana, with some

4. Rowney Terrace is ten blocks north of Clearstream Gardens

on the same boundary line between IPS and Warren Metropolitan

School District (MSD).

Raymond Villa is approximately four blocks north of the boundary

line between IPS and Beech Grove.

Laurelwood is in a narrow peninsula of IPS that is surrounded on

three sides by Perry MSD.

Concord Village is approximately one-half mile from the Speed-

way boundary.

Eagle Creek is on the boundary line between IPS and Wayne

MSD.

5. Acts 1963, ch. 310, § 4; I. C. 1971, 20-3-11-33, Burns Ind.

Stat. Ann. § 28-2633 (1971), provides that the 1931 act remains

in effect except to the extent that its various provisions are inconsist-

ent with the 1959 act discussed in the text. The provision of the

1931 act making IPS boundaries coterminous with those of Indian-

apolis is inconsistent with the 1959 act and consequently was not

reenacted by the 1963 act. The 1963 act did not purport to affect the

provisions of the 1961 act discussed in the text.

Al3

exceptions, and the IPS boundaries merely reflected the gen-

erally prevailing condition.

In 1959 the Indiana School Reorganization Act, Acts 1959,

ch. 202, §1; I. C. 1971, 20-4-1-1 et seq., Burns Ind. Stat.

Ann. § 28-3501, n (1971), created a complex scheme for con-

solidating school districts. Consolidations under the Act reduced

the number of school districts outside Marion County from

990 to 305. Some 70 percent of reorganized districts were

not coterminous with other units of civil government. In some

cases consolidated school districts crossed county lines.

Marion County, however, was an exception. School districts

there were not consolidated. The Marion County Reorganiza-

tion Committee, appointed pursuant to the Act, initially recom-

mended that all school systems in the county be merged into

one, but the unanimous opposition of the suburban school dis-

tricts defeated the merger proposal. There is no evidence that

this opposition was racially motivated. The Committee’s ill-

fated consolidation proposal was intended to “develop equal

educational opportunities for all children in Marion County,”

and to “eliminate the confusion of school transfers and disloca-

tions involved in annexation proceedings.”

The most substantial reasons against consolidation noted in

the Committee’s report were that a consolidated school district

would be large, with consequent loss in citizen participation

and interest in school affairs, and that merger would result in

increased school taxes in IPS and two of the suburban districts.

The Committee explained that the consolidation plan “had no

widespread support—only organized opposition,” and that it

did not wish to “force a plan (however sound in its conception)

upon an unwilling or reluctant public.” So, although it believed

the arguments in favor of its plan far outweighed the opposition

6. The district judge’s comment is pertinent. “In fact, the evi-

dence shows that, with a few exceptions, none of the added defend-

ants have had the opportunity to commit such overt acts because the

Negro population residing within the borders of such defendants

ranges from slight to none, . . . ” United States v. Board of School

Commissioners, 368 F. Supp. at 1203.

Al4

arguments, the Committee, as the district court found,

“fRJeversed itself and proposed a plan which, with minor ex-

ceptions . . . froze all existing school corporations in Marion

County according to their then existing 1961 boundaries.”

United States v. Board of School Commissioners, 368 F. Supp.

1191, 1203 (S. D. Ind. 1973). The Committee thereby aban-

doned both its merger plan and a less radical plan which would

have restructured school boundaries on what the Committee

regarded as a more rational basis than existing boundaries.

Accordingly, the plan adopted in 1962, after approval by the

state, did not significantly change boundaries in Marion County,

but left those boundaries coterminous with those of civil govern-

mental bodies.

As a result of the 1959 Reorganization Act, school boundaries

in most of the state were frozen and thereafter unaffected by

municipal annexations. In 1961, however, special legislation

was enacted to give the schools within Marion County the

flexibility lost by the 1959 Reorganization Act. Acts 1961, ch.

186, § 1; I. C. 1971, 20-3-14-1 et seq., Burns Ind. Stat. Ann.

§ 28-3610 (1971). Under the 1961 act extension of the bound-

aries of a civil city automatically extended the corresponding

school district boundaries unless the school city and the losing

school corporation mutually agreed that the school city territory

would not expand with the civil city. The school district whose

territory was to be taken could also oppose the civil annexation

in a remonstrance suit. The annexation powers of the city,

however, proved to be illusory, for they were effectively frus-

trated by remonstrance litigation."

Another means of annexation under the 1961 act was by

mutual agreement between school corporations. IPS (and other

school districts with boundaries corresponding with those of

a civil city) also had a unilateral power of annexation subject

to the right of the school district whose territory was to be taken

7. This frustration of the city’s annexation efforts was one of

the reasons for Uni-Gov given by Mayor Lugar in his testimony

before the district court.

AlS

to oppose by remonstrance. No wae action was taken by

IPS under this provision.

In summary, until 1969, the combined action of the State of

Indiana and its political subdivisions had the effect of leaving

the boundaries of the City of Indianapolis and IPS substantially

the same despite statewide school district consolidations made

under the 1959 act. True, IPS could expand independently of

the city, but the city’s annexation prima facie carried IPS with

it. Although it turned out that no annexations occurred, the

policy of the state, as expressed in the 1961 legislation, was

that IPS would expand along with the city.

In 1969, after this action was filed, two other acts were

adopted. One act, Acts 1969, ch. 52, § 3; I. C. 1971, 20-3-14-9,

Burns Ind. Stat. Ann. § 28-3618 (1971), adopted sixteen

days before Uni-Gov was enacted, amended the 1961 act by

abolishing the power of IPS to follow municipal annexations.

Another act, Acts 1969, ch. 239, § 407; I. C. 1971, 18-5-10-25,

Burns Ind. Stat. Ann. § 48-722 (1971), limited the remon-

strances against municipal annexations to a few, simple, fairly

objective grounds.

Ill.

The overall issue in this appeal is whether the limited

interdistrict remedy ordered by the district court is supported

by the record and is in accord with the legal principles enunci-

ated in Milliken v. Bradley, 418 U. S. 717 (1974). Subsumed

in the issue are two questions: (1) whether the establishment

of Uni-Gov boundaries without a like reestablishment of IPS

boundaries warrants an interdistrict remedy within Uni-Gov,

and (2) whether the district court correctly enjoined the Hous-

ing Authority of the City of Indianapolis from locating any

additional publicly funded housing projects within the bound-

aries of IPS and from renovating any existing facility for other

than the elderly.®

8. The school district defendants argue that our mandate limited

inquiry on remand to Uni-Gov itself. It is true that our remand

(Continued on next page)

Al6

In our opinion, Milliken’s essential holding is contained in

the following language written by Mr. Chief Justice Burger:

The controlling principle consistently expounded in our

holdings is that the scope of the remedy is determined by

the nature and extent of the constitutional violation.

Swann, 402 U. S., at 16. Before the boundaries of separate

and autonomous school districts may be set aside by

consolidating the separate units for remedial purposes or by

imposing a cross-district remedy, it must first be shown that

there has been a constitutional violation within one district

that produces a significant segregative effect in another

district. Specifically, it must be shown that racially dis-

criminatory acts of the state or local school districts, or

of a single school district have been a substantial cause of

interdistrict segregation. Thus an interdistrict remedy

might be in order where the racially discriminatory acts

of one or more school districts caused racial segregation

in an adjacent district, or where district lines have been

deliberately drawn on the basis of race. In such circum-

stances an interdistrict remedy would be appropriate to

eliminate the interdistrict segregation directly caused by

(Continued from preceding page)

“(Flor further proceedings consistent with” Milliken v. Bradley was

qualified by the. specific direction to “[De]termine whether the

establishment of the Uni-Gov boundaries without a like reestablish-

ment of IPS boundaries warrants an inter-district remedy within

Uni-Gov in accordance with Milliken.” United States v. Board of

School Commissioners, 503 F. 2d 68, 86 (7th Cir. 1974), cert.

denied, 421 U. S. 929. This direction, however, was itself qualified

by a footnote quoting from passages in the opinion of the Court

in Milliken and in Mr. Justice Stewart’s concurring opinion. Both

passages mention the drawing of schoo! district lines on the basis

of race as a possible ground for interdistrict relief; the former also

includes as a possible ground discriminatory acts of other school

districts; and the latter mentions “[P]urposeful, racially discriminatory

use of state housing or zoning laws” by state officials. Jd. at n. 23.

We interpret the mandate as sufficiently broad to permit considera-

tion of official conduct which arguably bears a historical relationship

to the failure to expand the IPS boundaries to match those of Uni-

Gov, which includes the failure to change IPS boundaries during the

1959-1962 Indiana school reorganization program and the failure to

locate any public housing outside the IPS boundaries. On the inter-

vening plaintiffs’ theory of the case, which the district court adopted,

this course of conduct was a part of a pattern, of which Uni-Gov

was also a part.

Al7

the constitutional violation. Conversely, without an inter-

district violation and interdistrict effect, there is no consti-

tutional wrong calling for an interdistrict remedy. (em-

phasis added.) Milliken v. Bradley, 418 U. S. 717, 744-45.

That holding was further explicated in Hills v. Gautreaux, 44

U. S. L. W. 4480, 4484 (U. S. April 20, 1976), where Mr.

Justice Stewart wrote:

The Court’s holding that there [Milliken v. Bradley]

had to be an interdistrict violation or effect before a federal

court could order the crossing of district boundary lines

reflected the substantive impact of a consolidation remedy

on separate and independent school districts. The District

Court’s desegregation order in Milliken was held to be an

impermissible remedy not because it envisioned relief

against a wrongdoer extending beyond the city in which

the violation occurred but because it contemplated a judicial

decree restructuring the operation of local governmental

entities that were not implicated in any constitutional viola-

tion.

In Milliken the majority opinion also noted that, “[I]n its

present posture the case does not present any question concerning

possible state housing violations.” Milliken v. Bradley, supra at

728, n. 7. Mr. Justice Stewart, in his concurring opinion, ex-

plicitly explained the relevance of housing discrimination as

it relates to an interdistrict remedy in school desegregation cases.

Mr. Justice Stewart wrote:

Were it to be shown, for example, that state officials had

contributed to the separation of the races by drawing or

redrawing school district lines, . . . by transfer of school

units between districts, . . . or by purposeful, racially dis-

criminatory use of state housing or zoning laws, then a

decree calling for transfer of pupils across district lines

or for restructuring of district lines might well be appro-

priate. Jd. at 755.

With these holdings in mind we turn to the issue of Uni-Gov

as it relates to an interdistrict violation.

Although Uni-Gov was a neutral piece of legislation on its

face with its main purpose to efficiently restructure civil govern-

Al18

ment within Marion County, it cannot be analyzed in isolation

if its impact on school district boundaries is to be clearly per-

ceived. Rather it must be considered in conjunction with the

two other acts adopted in 1969. (See supra pp. 12-13.)

For some time Mayor Lugar had expressed his desire to

embark on a more aggressive annexation program in order

to bring a greater part of the urbanized area under the city’s

control. The concept of Uni-Gov was promoted as a more viable

alternative to lengthy annexation litigation.* The suburban school

corporations and their legislative representatives were obviously

aware that if Uni-Gov did not pass and the civil city was forced

to embark on a more aggressive annexation program as a last

resort to reorganizing governmental services, IPS boundaries

would automatically extend with the civil city boundaries

under the 1961 Annexation Act.’® In order to avoid this un-

desired result Chapter 52, 1969 Acts was enacted sixteen days

before Uni-Gov was adopted. This Act repealed the provision

in the 1961 Act which provided for automatic extension of

school city boundaries with the extension of civil city boundaries.

Chapter 239, 1969 Acts was also adopted, limiting remon-

strances against municipal annexations to a few, simple, fairly

objective grounds.

It must be kept in mind that at this time both the General

Assembly and the suburban school districts knew that this

action was pending in district court. These “fail safe” measures

indicated a legislative intent (reflecting local sentiments) that

by one means or another the boundaries of IPS would not

expand with those of the civil city. We say this because a court

is entitled to draw reasonable and logical inferences from

9. Prior city administrations had not strongly pursued civil

annexations and those that had been adopted were being effectively

thwarted by remonstrances in the courts.

10. Under the 1961 Annexation Act the only way to avoid

automatic extension of the school city boundaries, other than by

remonstrance, was by mutual agreement between the acquiring and

losing school corporations that the school city boundaries would not

extend with the civil city boundaries.

Al9

probable consequeiices of changes in the law and the evident

purpose of such changes.

Because, in 1969, 95 percent of the blacks in Marion County

lived in the inner city and segregation in its schools was under

attack in federal court, it is clear to us that Uni-Gov and its

companion 1969 legislation were “[A] substantial cause of inter-

district segregation.” Milliken v. Bradley, 418 U. S. 717, 745

(1974), and “[C]ontributed to the separation of the races by

. . . redrawing school district lines. . . .” Jd. at 755 (Stewart, J.,

concurring).

The General Assembly, under both federal law as expressed

in Brown v. Board of Education, 349 U. S. 294 (1955), and

in Green v. County School Board, 391 U. S. 430 (1968),

and Indiana law as expressed in Acts 1949, ch. 186, §§ 1-6, 8,

as repealed by Acts 1973, P. L. 218, § 1; I. C. 1971, 20-8.1-2-1

—20-8.1-2-7, Burns Ind. Stat. Ann. § 28-5304 (1971), had

an obligation to alleviate the segregated condition in IPS. The

record fails to show any compelling state interest that would

have justified the failure to include IPS in the Uni-Gov legisla-

tion. The desirability for a unitary civil government should not

have precluded the General Assembly from considering the needs

of the school system in its decision to enact Uni-Gov. As we

noted earlier, the most substantial reasons advanced against

the consolidation of the schools in Marion County when it

was under consideration in 1959 were that a consolidated school

district would be large, with consequent loss of citizen participa-

tion, and that it would increase taxes. These considerations,

although apparently not racially motivated, cannot justify

legislation that has an obvious racial segregative impact. Ad-

ministrative convenience cannot be a justification for violating

the Equal Protection Clause. The district court correctly ob-

served, “When the General Assembly expressly eliminated the

schools from consideration under Uni-Gov, it signaled its lack

of concern with the whole problem and thus inhibited desegrega-

tion with [sic] IPS.”

A20

In summary, we are convinced that the essential findings

for an interdistrict remedy found lacking in Milliken are supplied

by the record in the instant case.'In Milliken the Supreme

Court noted that the Detroit school boundaries were coterminous

with the civil city boundaries and “[W]ere established over a

century ago by neutral legislation . . . .” Milliken v. Bradley,

418 U. S. 717, 748 (1974). The Court also observed the district

court did not find that the segregative acts within Detroit effected

segregation within the other districts. Jd. at 721. Furthermore,

the suburban school districts had not participated in the proceed-

ings, id. at 722, and finally, there had been no evidence of

any racially discriminatory acts of the state which had been

substantial causes of interdistrict segregation, id. at 745. The

remedy chosen by the district court required a consolidation

of fifty-four districts “into a vast mew super school district,”

id. at 743.

Indianapolis presents an entirely different situation. The

Indianapolis Legislature [sic] acted directly in passing Uni-Gov,

thereby creating the existing situation which confines black

students within IPS. Moreover, the suburban governmental units

made it politically expedient that Uni-Gov not include the

schools.

In this case we are dealing with a situation in which but

for certain events chargeable to the state, Marion County would

be either a consolidated school district under the 1959 School

Reorganization Act or IPS would have been expanded with the

civil city of Indianapolis under Uni-Gov. In this context there

is nothing talismanic about the word “district”, for school district

lines are not sacrosanct. Milliken, supra at 744. The following

hypotheticals are helpful in analyzing the problem.

(a) City A has one school district, coterminous with

City A. The Government brings a suit, alleging de jure

segregation in the city schools, particularly in the north-

east portion of the city. The defendant school board agrees

that the northeast portion of the city must be desegre-

gated, but argues that a district wide remedy is unnecessary,

A21

that is, that only the schools in the northeastern portion of

City A need be affected. On these facts, Keyes v. School

District No. 1, 413 U. S. 189, 208 (1973), would control.

(b) City B has one school district that is coterminous

with city boundaries. Perhaps fearing an impending de-

segregation suit, City B decides to contract its school

district boundaries so that the school district encompasses

the bulk of the central city while the outlying areas of

the city organize their own school districts. On these facts,

no federal court in a desegregation suit would hesitate in

ordering the crossing of district lines to effect a remedy.

(c) City C decides to expand its boundaries and

annexes the suburbs surrounding it into a unitary civil

government. However, it retains its school district bound-

aries, previously coterminous with its former city bound-

aries. In every other respect it provides full city services in

and exercises full city authority over the newly acquired

territory. These facts are analogous to those of the case at

bar. In the event of a meritorious desegregation suit in

hypothetical City C, a district court could properly order

an interdistrict remedy under Milliken.

There is no dispute that a school district may not contract its

territory in order to avoid desegregation. Cf. Wright v. Council

of City of Emporia, 407 U. S. 451 (1972). Conversely, a city

should not be permitted to extend its boundaries in order to

avoid desegregation.

Evans v. Buchanan, 393 F. Supp. 428 (D. Del. 1975),

, a =< ae , 44 U. S. L. W. 3299 (1975), is a

case which is factually analogous to the instant case in many

respects and in accord with Milliken. In Evans the district court

had to consider the segregative effects of the Education Ad-

vancement Act of 1968, a Delaware school reorganization

statute, which explicitly excluded the Wilmington district from

a general reorganization of Delaware school districts. Although

the district court concluded that the provisions excluding the

Wilmington district from school reorganization were not pur-

posefully, racially discriminatory, this did not end its inquiry.

A22

The court noted, “Statutes that do not explicitly deal with race

but have a pronounced racial effect, . . . can also establish sus-

pect racial classifications.” Evans v. Buchanan, supra at 441.

It further stated that “[WJhere a statute, either explicitly or

effectively, makes the goals of a racial minority more difficult

to achieve than other related governmental interests, the statute

embodies a suspect racial classification and requires a par-

ticularly strong justification.” Jd. The court therefore held that

the Education Advancement Act, although racially neutral on

its face, “{H]ad a significant racial impact on the policies of the

State Board of Education, . . .” id. at 442-443, and thereby

constituted a suspect classification. In effect, the statute pre-

vented a predominantly black school district from being reor-

ganized with a predominantly white suburban school district

while other districts in the state were able to consolidate. The

court finally concluded that “Neither . . . interest in preserving

a historic school district boundary, nor the interest in maintain-

ing districts with enrollments below 12,000 .. .,” id. at 445,

was a compelling state interest and did not justify the exclusion

of Wilmington in the Education Advancement Act. On this

basis the district court ordered an interdistrict remedy. The

Supreme Court summarily affirmed.

In light of the above we find that the limited interdistrict

remedy ordered by the district court was proper.

IV.

We now turn to the housing issue. As we stated above 95

percent of the black residents of Marion County live in the

inner city. Surrounding the inner city are suburbs populated

largely by white residents. This phenomenon may have many

causes, but we think the district judge was correct in finding

as the primary reason discrimination in the availability of

housing opportunities for blacks in the suburbs. We are in

agreement with Judge Dillin’s statement:

A23

+ Although it is undoubtedly true that many factors enter

into demographic patterns, there can be little doubt that

the principal factor which has caused members of the

Negro race to be confined to living in certain limited

areas (commonly called ghettos) in the urban centers

in the north, including Indianapolis, has been racial dis-

crimination in housing which has prevented them from

living any place else. United States v. Board of School

Commissioners, 68 F. Supp. 1191, 1204 (S. D. Ind.

1973).

Although the Housing Authority had jurisdiction outside the

IPS boundaries, it did not locate any of the public housing

projects in that territory. Instead, all ten of the public housing

projects whose occupancy is 98 percent black were located

within IPS. It is obvious that there is a close relationship be-

tween the racial balance in housing and the racial balance in

schools. As Judge Dillin found in his 1971 opinion, “Low-

rent housing projects within the School City have significantly

affected the racial composition of the schools.” United States

Vv. Board of School Commissioners, 332 F. Supp. 655, 673

(S. D. Ind. 1971). He reaffirmed this in his most recent deci-

sion, “The location of these housing projects by instrumentalities

of the State of Indiana has obviously tended to cause and to

perpetuate the segregation of black pupils in IPS territory.” The

record supports these findings and clearly shows a ‘purposeful,

racially discriminatory use of state housing.” Milliken v.

Bradley, 418 U. S. 717, 755 (1974) (Stewart, J., concurring).

The Government’s statement in its brief supports this view:

Given that a disproportionate number of blacks are both

in low income categories and were already concentrated

in IPS and considering the predominantly black composi-

tion of the pool of applicants for the H.A.C.I. low-income

housing projects, it is a reasonable inference that this

action would and did have a further impact upon the

racial compositions of schools and school districts in Marion

County. |

The Housing Authority contends the district court had no

authority to enjoin it from building additional public housing

A24

within IPS and from renovating Lockefield Gardens for other

than the elderly because the court could not lawfully find a

constitutional violation by HACI in confining its housing

projects to IPS territory. The evidence presented above, how-

ever, is to the contrary.

By locating its projects within IPS and in many cases near

all black neighborhoods, the Housing Authority significantly

contributed to the disparity in residential and school popula-

tions between the inner city and the suburbs. Its acts produced

discriminatory effects both within IPS and the suburbs. The

relief ordered by the district court was directed to correctinr.

the effects of those past discriminatory acts. Accordingly, the

district court did not abuse its discretion in enjoining the Housing

Authority from building additional projects within IPS. That

part of the injunction that relates to Lockefield Gardens was

also proper since permitting it to be used for family housing,

where school children are undoubtedly involved, would only

further aggravate the school segregation problem.

V.

The Government contends that the mandatory transfer of

students between IPS and the suburban schools ordered by the

district court is improper. After conceding the import of Milli-

ken, the propriety of interdistrict relief, and noting the specific

finding of facts found by the district court to have substantially

caused segregation in the other districts, the Government con-

cludes the district court’s order was an abuse of discretion.

We are confused by the Government’s reasoning. We fail to

see how the district court abused its discretion when it was

clearly acting within the guidelines of Milliken. It was not an

abuse of discretion merely because the Government would have

preferred another remedy.

Furthermore, the Government’s arguments are inconsistent.

On the one hand, it demands that segregation be eliminated

A25

root and branch from within IPS; on the other, it condemns

the only relief which can make its demand a reality. We are

surprised the Government seriously offers voluntary transfer as

an alternative to mandatory transfer as a means to effectuate

its goal of complete desegregation. History has taught us that

“freedom of choice” plans produce negligible results. Green v.

County School Board, 391 U. S. 430 (1967).

Even if we were to agree with the Government that voluntary

transfers are desirable, Indiana law provides no secure mech-

anism for achieving this result. The Government suggests that

voluntary transfers can be made in accordance with Acts 1973,

P. L. §1; I. C. 1971, 20-8.1-6-1, Burns Ind. Stat. Ann.

§ 28-5001 (1971), which permits transfers under certain condi-

tions." We do not agree, however, that this law is sufficient

to provide for the kind of transfers the district court ordered.

The language in the statute is permissive and vague (a trans-

fer may be granted if the school corporation feels a child may

be better accommodated in another school) and does not con-

template transfers for desegregation purposes. We could hardly

believe we were carrying out our duty to dismantle segregation

root and branch if we were to choose this law to accomplish

our goal.

11. The statute provides:

Transfer—General order.— The governing body of any

school corporation may grant an order of transfer upon proper

application by the parent of any child who resides in that corpo-

ration if it feels the child may be better accommodated in the

public schools of another school corporation of this state or of

an adjoining state. In determining whether a child can be

better accommodated, such matters as the proximity of the

schools to the residence of the child desiring the transfer, the

kind and character of the roads, the means of transportation,

and the crowded conditions of the school shall all be pertinent.

If there is no high school in the school corporation in which a

child resides, the governing body shall grant an order of trans-

fer. When a transfer is granted under this section, transfer

tuition shall be paid as provided in this chapter.

A26

The limited interdistrict remedy ordered by the district court

is supported by the record and in accord [sic] the legal principles

enunciated in Milliken.

In affirming the district court’s order, we suggest that the

court monitor the transferance of black pupils from IPS to the

other school districts periodically, perhaps on a yearly basis, in

order that modifications, if necessary, may be made. This is in

the hope that segregation and discrimination will be completely

eradicated within IPS in furtherance of the goal of equal op-

portunity proclaimed two hundred years ago in the Declaration

of Independence.”

AFFIRMED,

Tone, Circuit Judge, dissenting.* There are only two possible

interdistrict constitutional violations, in view of our decision on

the second appeal, United States v. Board of School Commis-

sioners, 503 F. 2d 68 (7th Cir. 1974), cert. denied, 421 U. S.

929 (1975), as the majority recognizes. These two possibilities

are Uni-Gov and the Housing Authority’s location of public

housing, as to both of which the District Court heard evidence

and made findings on remand.

12. Su plementing Judge Tone’s footnotes to his dissent, the

author of this opinion acknowledges extensive borrowing from Judge

Tone’s original draft of an opinion, particularly with respect to the

factual background of this case. That use made my task easier,

and I am indeed grateful.

* The writing of the court’s opinion was initially assigned to me,

my tentative vote at conference having been to affirm. After I had

devoted much time toward the preparation of an opinion, I came

to the view reflected in this dissent. The writing of the court’s —

was therefore reassigned to Judge Swygert, who was already

burdened with his share of the work of the Seventh Circuit but

nevertheless had to find time for this case. While the results of

my work on the record, which I made available to him, were I

hope of some use in connection with the writing of his opinion,

he got a very late start because of the circumstances just described.

J recite this intramural history to record the reason for the unusual

delay between oral argument and decision and the fact that Judge

Swygert is not respons ble for that delay.

A27

’ Whether these state actions violated the Equal Protection

Clause depends upon the existence of a racially discriminatory

purpose. Disproportionate effect on minorities without dis-

criminatory purpose is not enough. If this was not clear after

James V. Valtierra, 402 U.S. 137 (1971), Jefferson v. Hackney,

406 U. S. 535, 548-549 (1972), and Keyes v. School District

No. 1, 413 U. S. 189, 208 (1973), it was made so by Washing-

ton Vv. Davis, 44 U. S. L. W. 4789 (U. S., June 7, 1976). The

Court squarely held in the latter case that equa! protection is

denied only when the state acts with a racially discriminatory

purpose:

“[O]ur cases have not embraced the proposition that a

law or other official act, without regard to whether it

reflects a racially discriminatory purpose, is unconstitu-

tional solely because it has a racially disproportionate

impact. [Original emphasis.]

* + * > ©

“The school desegregation cases have . . . adhered to the

basic equal protection principle that the invidious quality

of a law claimed to be racially discriminatory must ulti-

mately be traced to a racially discriminatory purpose. That

there are both predominantly black and predominantly

white schools in a community is not alone violative of the

Equal Protection Clause.

* * ~ * e

“. . . Disproportionate impact is not irrelevant, but it is

not the sole touchstone of an invidious racial discrimination

forbidden by the Constitution.” 44 U.S.L.W. at 4792, 4793.

The record before us does not contain findings or evidence

that the state acted with a racially discriminatory purpose in

connection with Uni-Gov or public housing siting.’ An essential

element of an equal protection violation is therefore missing.

1. The criterion of racially discriminatory purpose is, of course,

often not easy to apply. Even if, in any given case, a body such as a

legislature or school board can be said to have a collective intent (see

R. Dickerson, The Interpretation and Application of Statutes 67,

et seq. (1975)), that intent is often difficult to ascertain. See Justice

(Continued on next page)

A28

One other governing principle should be noted at the outset.

Milliken v. Bradley, 418 U. S. 717 (1974), in language we are

not free to ignore, focused on the constitutional right to be

vindicated. Amplifying the statement quoted by the majority

that “the scope of the remedy is determined by the nature and

extent of the constitutional violation,” id. at 744, the Supreme

Coiift said“fW6 pages later:

“Disparate treatment of white and Negro students occurred

within the Detroit school system, and not elsewhere, and

on this record the remedy must be limited to that system.

“The constitutional right of the Negro respondents

residing in Detroit is to attend a unitary school system in

that district. Unless petitioners drew the district lines in a

discriminatory fashion, or arranged for white students

residing in the Detroit District to attend schools in Oakland

and Macomb Counties, they were under no constitutional

duty to make provisions for Negro students to do so.

The view of the dissenters, that the existence of a dual

system in Detroit can be made the basis for a decree

requiring cross-district transportation of pupils, cannot be

supported on the grounds that it represents merely the

devising of a suitably flexible remedy for the violation of

rights already established by our prior decisions. It can be

supported only by drastic expansion of the constitutional

right itself, an expansion without any support in either

(Continued from preceding page) %

Powell’s concurrence in Keyes, 413 U. S. at 217, 233-234. For

this reason Justice Stevens, concurring in Washington v. Davis,

observed that “the line between discriminatory purpose and dis-

criminatory impact is not nearly as bright, and perhaps not quite

as critical, as the reader of the Court’s opinion might assume,”

and based his concurring vote, in a manner reminiscent of Justice

Harlan’s concurring opinion in Hunter v. Erickson, 393 U. S. 385,

393 (1969), on the objective indicia that the governmental action

was grounded on neutral principle. In the case at bar, this problem

is not as knotty as it often is. Uni-Gov satisfies the neutral principle

standard, and the search for collective legislative intent, which able

counsel must have made, seems to have turned up no evidence what-

soever of racially discriminatory purpose on the part of anyone

responsible for the legislation. The housing siting decisions are in

a similar posture.

A29

constitutional principle or precedent.” Jd. at 746-747

(footnote omitted).

That Milliken controls here, apart from the additional evidence

on Uni-Gov and public housing, was of course recognized in our

decision on the second appeal, in which we reversed the portion

of the District Court's order calling for interdistrict relief outside

the Uni-Gov territory. That decision was a recognition that, in

the language of Milliken, “(t]he constitutional right of the

Negro respondents residing in [IPS] is to attend a unitary school

system in that district,” id., and an interdistrict remedy is not

an appropriate means of vindicating that right. The question now

is: What other constitutional rights, violation of which calls

for an interdistrict remedy, were shown on remand to have been

violated by Uni-Gov and the siting of public housing projects?

The majority does not seem to me to answer that question.

The District Court did not find that the legislative decision

to exclude IPS from Uni-Gov was racially motivated.? The

record would not have supported such a finding in view of both

the absence of any direct evidence of such a motivation and the

presence of such evidence as the historic context of opposition

to county-wide school consolidation on non-racial grounds,® the

2. Such a finding cannot be inferred from the District Court’s

statement that by not consolidating the schools under Uni-Gov, the

General Assembly “signaled its lack of concern with the whole prob-

lem and thus inhibited desegregation with[{in] IPS.” Apart from

doubt about whether there is any evidence that Uni-Gov had an

inhibiting effect on desegregation, as distinguished from not promot-

ing desegregation, the court has merely described an effect and not

a purpose. A “lack of concern” does not amount to a racially

discriminatory purpose. The siate, like Michigan in Milliken, was

under no direct constitutional duty to adopt interdistrict measures,

and a duty to act could hardly arise from the fact that failure to

act would “signal a lack of concern.”

3. There is no evidence, as the majority recognizes, that the

opposition to consolidation of Marion County School districts under

the Indiana School Reorganization Act of 1959 (Ind. Code § 20-4-

1-1, et seq.), was racially motivated. Nor is there any evidence that

the failure to consolidate after that time or opposition to civil

annexation was racially motivated. The District Court, in the course

(Continued on next page)

A30

decision to leave other government units out of Uni-Gov,* the

fact that all school boundaries elsewhere in the state were

already frozen, and the non-racial reasons and the haphazard

fashion in which civil annexation had taken place in the past,

which had done nothing to establish rational school boundaries.*

The appellees do not argue that the evidence shows a racially

discriminatory purpose. In their briefs, filed before the decision

in Washington v. Davis, the government assumes, and the

intervening plaintiffs argue, that such a purpose need not

be shown.

(Continued from preceding page)

of the hearing on remand after our decision on the second appeal,

spoke of the purpose of certain exhibits as being offered “to prove

or tend to prove that the present division of Marion County into

eleven separate school districts is something that happened because

of reasons pertaining primarily to school finances as well as to the

desire of non-IPS schools to maintain local autonomy rather than

for reasons of separating students based on race. . . . I presume that

if the Government or the intervening plaintiffs had some evidence

to the contrary that they would be cross-exainining, or examining

along those lines.” [March 1975 Tr., Vol. III, pp. 359-360.]

Neither the government nor the intervening plaintiffs offered any

“evidence to the contrary” or cross-examined along the lines referred

to.

4. Among those other governmental units were the Airport

Authority, the Health and Hospital Corporation, the County Depart-

ment of Welfare, the Building Authority, and the Library Districts.

See Ind. Code § 18-4-3-14. The so-called “excluded cities” of Speed-

way, Perry and Lawrence [sic] retained their own local governments,

which provide municipal services in those areas, although Uni-Gov

has the responsibility even in those areas for air pollution regulation,

building code enforcement, municipal planning, and thoroughfare

control.

5. The record indicates that the reasons for this and the resulting

irregularities in the boundaries of Indianapolis were that in many

instances residents protested annexation because they felt the city

would not provide them with services commensurate with the addi-

tional tax money they would be paying (not an uncommon reason

for opposition to annexation by municipalities large and small

throughout the country), and in other instances commercial devel-

opers sought and gained the annexation of land they owned because

they wanted benefits that could be obtained through annexation.

Thus whether this land was annexed depended in large part upon

the position taken by the owners of the land affected. [March 1976

Tr., Vol. Il, pp. 219-220.]

A31

A search in the opinion of this court’s majority for a

finding of racially discriminatory purpose will be unproductive.

The majority finds (text at notes 9 and 10) that the General

Assembly did not want IPS boundaries to expand with the city

boundaries whether or not Uni-Gov was adopted* but does not

follow with a statement that this desire or the actions effectu-

ating it were racially motivated. Instead it goes on to state,

citing Milliken, that “Uni-Gov and its companion 1969 legis-

lation were ‘a substantial cause of interdistrict segregation’ . . .

and ‘contributed to the separation of the races by . . . redrawing

school lines. . . ..”’ But under Milliken, as explained in

Washington v. Davis, cause and effect are not enough. A racially

discriminatory purpose is necessary. The closest the majority

comes to finding a racially discriminatory purpose is in the

abstract statement, at the end of the paragraph containing the

three hypotheticals, that “a city should not be permitted to

extend its boundaries in order to avoid desegregation.” I believe

that if this court intended to find as a fact that Uni-Gov was

adopted with a racially discriminatory purpose, in the face of

the failure of the District Court to find, and of the appellees

to argue, that there was such a purpose, it would do so directly

and state the evidentiary basis for that finding. As stated above,

I believe there is no such basis in the record.

The majority attempts to avoid the necessity of finding

discriminatory purpose by postulating an affirmative duty to

desegregate under Green v. County School Board, 391 U. S.

6. This inference is drawn from the adoption of Chapter 52,

1969 Acts (Ind. Code § 20-3-14-9) seven days before the adoption

of Uni-Gov and the adoption of Chapter 239, 1969 Acts (Ind. Code

§ 18-5-10-25). The effect of these two acts was to eliminate the

automatic expansion of IPS boundaries to match the expansion of

city boundaries and to limit remonstrances against annexations.

These acts were rendered nugatory by the adoption of Uni-Gov.

7. Failing to redraw the school district lines does not seem

to me to be “redrawing school district lines,” but this is not important

to an analysis of the problem, because the controlling question is

whether, however the legislature’s action is described, it was taken

with a racially discriminatory purpose.

A32

430 (1968), and the Indiana statutes. It is doubtful that the

Indiana legislature could impose on itself by statute the duty

to pass additional statutes, and, if it could, violation of such

a duty would not give rise to a federal constitutional claim.

Milliken’s teaching is that the state’s constitutional duty under

Green is commensurate with the violation, which, apart from

the Uni-Gov events themselves, was a violation of the rignt to

attend a unitary school system within IPS. Under Milliken, there

can be no affirmative duty to use interdistrict means to remedy

intradistrict violations; for if such a duty existed, the State of

Michigan surely violated it in that case, which would have

mandated the interdistrict remedy rejected by the Supreme

Court, and there was no reason in the case at bar to exclude

the territory outside Uni-Gov from the scope of our remand

on the second appeal.

Evans v. Buchanan, 393 F. Supp. 428 (D. Del. 1975),

affd, 96 S. Ct. 381 (1975), on which the majority relies, does

not in my Opinion support affirmance. That case, unlike the case

at bar, involved a prior interdistrict violation mandating the

adoption of interdistrict measures by state authorities. The dis-

trict court opinion in Evans shows de jure segregation before

Brown Vv. Board of Education, 347 U. S. 483 (1954), was

practiced on an interdistrict basis in the Wilmington area. 393

F. Supp. at 427. The state failed to carry its burden of showing

that these past acts of segregation had become so attenuated

that “the current segregation is in no way the result of those

past segregation actions,” Keyes v. School District No. 1, supra,

413 U. S. at 211, n. 17; in fact, post-Brown acts contributed to

continued interdistrict segregation, see 393 F. Supp. at 434-436.

Consequently, there was an affirmative duty to remedy the

interdistrict violation, and the Delaware reorganization statute,

by barring consolidation as a way of doing so, “contravene[d]

the implicit command of Green v. County School Board . . . that

all reasonable methods be available to formulate an effective

remedy.” North Carolina State Board of Education v. Swann,

402 U. S. 43, 46 (1971).

A33

The majority relies on the “racial impact” theory espoused

by the district court in Evans. The summary affirmance of the

three-judge district court’s judgment does not necessarily imply

approval of that court’s reasoning, and that reasoning clearly

cannot stand after Washington v. Davis.

In short, there is no finding and no evidence that the

exclusion of IPS from Uni-Gov was racially motivated, and

by all objective criteria Uni-Gov was racially neutral state

action. Uni-Gov left untouched the boundaries of IPS, which

had been established for racially neutral reasons. The changes in

civil boundaries and reallocations of civil governmental functions

made by Uni-Gov had no effect on the constitutional rights of

school children in IPS.

Public Housing

The District Court, while unconvinced by the reasons given

for the selection by the Housing Authority of certain sites near

the periphery of the City of Indianapolis, made no findings that

any of the Housing Authority’s decisions were racially moti-

vated. As the majority notes, under federal statute (42 U. S. C.

§ 1415(7)(b)(i)) and HUD guidelines, the Housing Authority

could not obtain federal funds for a project in the absence of a

cooperation agreement with the local governmental authority

obligating the latter to provide essential governmental services;

and as the District Court found, “Suburban Marion County

officials have refused to cooperate with HUD on the location of

such projects.” It is apparent from the record and the District

Court’s findings that this was the real reason housing projects

were built only within the City of Indianapolis before the effec-

tive date of Uni-Gov. There was no finding and no evidence that

the refusals were racially motivated. Failure of local authorities

to enter into these agreements, without more, does not give rise

to an inference of racially discriminatory purpose, even though

the projects are to be occupied by large numbers of blacks. See

James V. Valtierra, supra, 402 U. S. at 141; see also Metro-

A34

politan Housing Development Corp. v. Village of Arlington

Heights, 517 F. 2d 409, 412-413 (7th Cir. 1975), cert. granted,

96 S. Ct. 560 (1975). As these cases hold, the state’s location

of low-rent housing projects for racially neutral reasons, even

though it has a disparate effect on minority groups is not subject

to strict scrutiny. James v. Valtierra, supra, 402 U. S. at 141;

Metropolitan Housing Development Corp. v. Village of Arling-

ton Heights, supra, 517 F. 2d at 413.* As the majority notes,

the record is silent as to why no housing projects were com-

menced within IPS since the effective date of Uni-Gov. Absent

a showing of discriminatory intent, I find no ground on which

to sustain the injunction against the Housing Authority.

Relief

In the absence of an interdistrict violation, there should be no

interdistrict relief against the school corporation defendants. If

I believed the majority were correct in finding interdistrict viola-

tions, I would agree that the remedy ordered by the District

Court is within its discretiém.and would not have this court sub-

stitute its discretionary judgment ee « the District Court

8. The majority does not rely on other“acts of the state and

private parties that had the effect of confining biegks to the IPS

area, to which the brief of the United States refers+ [hese acts

which include recording racial covenants, discriminatoty FHA

loan practices and private discrimination by brokers, sellers;“end

others, were referred to by the District Court as “customs and usages

of both the officials and inhabitants of such areas” which “dis-

courage[d] blacks from seeking to purchase or rent homes therein,

all as shown in detail in previous opinions of this Court.” While the

District Court was no doubt correct in this statement, the findings

referred to and the evidence supporting it were all in the record

at the time of the last appeal, when we held that Milliken precluded

relief outside Marion County, and are simiJar to findings and

evidence in Milliken. See 418 U. S. at 724, 728 n. 7. If these facts

had sufficed to justify an interdistrict remedy, the Supreme Court in

Milliken would presumably either have affirmed on the familiar

principle that a reviewing court will affirm on any basis supported

by the record, even if not relied on by the lower court, or else would

have remanded for further consideration of the housing issue. See,

e.g., Dandridge v. Williams, 397 U. S. 471, 475 n. 6 (1970).

A35

by ordering only the voluntary-transfer remedy urged by the

government. In this connection, I do note that even when no

constitutional violation has occurred, Indiana law provides relief

to a student who is prevented by school district lines from

attending the school nearest his home, Ind. Code § 20-8.1-6-1,

et seq., and the school authorities seem to be obligated to grant

such relief. State ex rel. Smitherman v. Davis, 283 Ind. 563,

571, 151 N. E. 2d 495, 498 (1958).

I further believe that since the Housing Authority, unlike

HUD in Hills v. Gautreaux, 44 U. S. L. W. 4480 (U. S. April

20, 1976), has nct been found to have engaged in purposefully

discriminatory and therefore unconstitutional conduct, no relief

against that agency is warranted.

A36

UNITED STATES DisTRICT COURT,

Southern District of Indiana,

Indianapolis Division.

No. IP 68-CA-225.

UNITED STATES OF AMERICA,

Plaintiff,

DoNNY BRURELL BUCKLEY, ALYCIA MARQUESE BUCKLEY, by

their parent and next friend, Ruby L. Buckley, on behalf of

themselves and all Negro school age children residing in the

area served by original defendants herein,

Intervening Plaintiffs,

vs.

THE BoaRD OF SCHOOL COMMISSIONERS OF THE CITY OF

INDIANAPOLIS, INDIANA; Kar R. KALp, as Superintendent of

Schools; MARTHA McCarDLE, as President of The Board of

School Commissioners; WILLIAM M. S. Myers, Cari J.

MEYER, PauL E. Lewis, LESTER E. NEAL, CONSTANCE R.

VALDEZ, W. FRED RATCLIFF, Members of The Board of

School Commissioners of the City of Indianapolis,

Defendants,

Otis R. BOWEN, as Governor of the State of Indiana; THEODORE

SENDAK, as Attorney General of the State of Indiana; HAROLD

H. NEGLEY, as Superintendent of Public Instruction of the

State of Indiana; THE METROPOLITAN SCHOOL DISTRICT OF

DECATUR TOWNSHIP, MARION COUNTY, INDIANA; THE

FRANKLIN TOWNSHIP COMMUNITY SCHOOL CORPORATION,

MARION COUNTY, INDIANA; THE METROPOLITAN SCHOOL

DisTRICT OF LAWRENCE TOWNSHIP, MARION COUNTY, IN-

DIANA; THE METROPOLITAN SCHOOL DISTRICT OF PERRY

TOWNSHIP, MARION COUNTY, INDIANA; THE METROPOLITAN

SCHOOL DisTRICT OF PIKE TOWNSHIP, MARION COUNTY,

INDIANA; THE METROPOLITAN SCHOOL DISTRICT OF WARREN

A37

TOWNSHIP, MARION CouNTY, INDIANA; THE METROPOLITAN

SCHOOL DISTRICT OF WASHINGTON TOWNSHIP, MARION

CounTY, INDIANA; THE METROPOLITAN SCHOOL DISTRICT OF

WAYNE TOWNSHIP, MARION CouNTY, INDIANA; SCHOOL CITY

OF BEECH GROVE, MARION CouNTY, INDIANA; SCHOOL TOWN

OF SPEEDWAY, MARION CouNTY, INDIANA; THE METROPOLI-

TAN DEVELOPMENT COMMISSION OF MARION COUNTY; THE

HOUSING AUTHORITY OF THE CITY OF INDIANAPOLIS; THE

INDIANA STATE BOARD OF EDUCATION, a public corporate

body;

Added Defendants,

CITIZENS FOR QUALITY SCHOOLS, INC.;

Intervening Defendant,

COALITION FOR INTEGRATED EDUCATION;

Amicus Curiae.

THE BOARD OF SCHOOL COMMISSIONERS OF THE CITY OF IN-

DIANAPOLIS, INDIANA,

Cross-Claimanis,

vs.

THE METROPOLITAN DEVELOPMENT COMMISSION OF MARION

CouNTY; THE HOUSING AUTHORITY OF THE CiTy OF IN-

DIANAPOLIS,

Cross-Defendants.

MEMORANDUM OF DECISION.

This case comes before the Court for further hearing, pursuant

to the direction of the Court of Appeals for the Seventh Circuit.

503 F. 2d 68 (1974) cert. den. _....... U. §. ..... 43 USLW

3571 (April 21, 1975). The previous history of the case, and

of various related actions, is fully set out at 503 F. 2d 71-75,

and will not be repeated here. The names of certain defendants

sued in a representative capacity, and whose terms have expired,

have been deleted and their successors substituted.

This Court was specifically directed to determine whether the

establishment of the Uni-Gov boundaries of the City of Indianap-

A38

olis' without a like re-establishment of Indianapolis Public

Schools boundaries warrants an interdistrict remedy within Uni-

Gov in accordance with Milliken v. Bradley, 418 U. S. 717,

94 S. Ct. 3112, 41 L. Ed. 2d 1069 (1974). Pursuant to such

direction, a further evidentiary hearing was held, beginning

March 18, 1975, and the parties have submitted both oral argu-

ment and briefs, all of which have been considered. The Court

has also given consideration to other matters raised by the plead-

ings and evidence, and to matters of Indiana Law, all as will

more fully appear.

The defendant Board of School Commissioners (IPS) on

September 29, 1971, brought into the case as additional defend-

ants, The Metropolitan Development Commission of Marion

County (Commission) and The Housing Authority of the City

of Indianapolis (HACI), and by way of a cross-complaint

charged them with implementing policies which contributed to

the segregation of IPS. Declaratory relief was demanded. ‘These

issues were not taken up heretofore, but in its pretrial entry of

December 13, 1974 the Court ruled that, in addition to the Uni-

Gov issue, the issue of the effect, if any, of the housing and

zoning laws, rules, regulations and customs in Marion County,

Indiana and its various political subdivisions upon the de jure

segregation of IPS, would be considered. The greater part of the

evidence introduced at the March hearing was on the latter

subject.

The issue regarding housing and zoning laws was not mooted

by Milliken. To the contrary, the concurring opinion of Mr.

1. The boundaries of the city, pursuant to Uni-Gov, are co- |

extensive with the boundaries of Marion County, except that the

cities of Beech Grove and Lawrence (“excluded cities”) amd the

unincorporated town of Speedway (“excluded town”) are permitted

to carry on as separate municipal corporations within the territory

of the consolidated City of Indianapolis. Citizens of these communi-

ties have a dual status—for example, a Beech Grove voter may

vote for Mayor of Indianapolis, members at large of the City

County Council, Mayor of Grove, and city councilmen of

Beech Grove.

A39

Justice Stewart, which constituted the decisive vote as between

an otherwise evenly balanced Court, stated, “Were it to be

shown . . . that state officials had contributed to the separation

of the races by drawing or redrawing school district lines . . .;

or by purposeful, racially discriminatory use of state housing or

zoning laws, then a decree calling for transfer of pupils across

district lines or for restructuring of district lines might well be

appropriate.” 418 U. S. at 755.

The evidence is undisputed that each and every public housing

project constructed and operated by the added defendant HACI

is located within IPS territory, in some instances just across the

street from territory served by one of the added defendant school

corporations. Each of such locations was approved—in some

instances selected in the first place—by the added defendant

Commission. The latter institution has had county-wide zoning

jurisdiction at all times during the construction of 10 out of the

11 public housing projects for families, and HACI has at all

times had the authority to erect public housing within the City

of Indianapolis, and within five miles of the corporate limits of

such city. The residents of said public housing projects are

approximately 98% black (except in projects for the elderly),

and their children all attend school in IPS. The location of these

housing projects by instrumentalities of the State of Indiana has

obviously tended to cause and to perpetuate the segregation of

black pupils in IPS territory.

The evidence in the record, as taken in all hearings, clearly

shows that the suburban Marion County units of government,

including the added defendant school corporations, have con-

sistently resisted the movement of black citizens or black pupils

into their territory. They have resisted school consolidation,

they resisted civil annexation so long as civil annexation carried

school annexation with it, they ceased resisting civil annexation

only when the Uni-Gov act made it clear that the schools would

not be involved. Suburban Marion County has resisted the erec-

tion of public housing projects outside IPS territory, suburban

A40

Marion County officials have refused to cooperate with HUD

on the location of such projects, and the customs and usages

of both the officials and inhabitants of such areas has been

to discourage blacks from seeking to purchase or rent homes

therein, all as shown in detail in previous opinions of this Court.

In its most recent opinion, 503 F. 2d at 80, the Court of

Appeals specifically concluded, with this Court, that state

officials of the State of Indiana “have, by various acts and

omissions, promoted segregation and inhibited desegregation

within IPS, so that the state, as the agency ultimately charged

under Indiana law with the operation of the public schools, has

an affirmative duty to assist the IPS Board in desegregating

IPS within its boundaries. . . .” Inasmuch as certiorari has

been denied by the Supreme Court, the finding that the State

has promoted segregation and inhibited desegregation within

IPS is, quite obviously, the law of the case. The new findings of

this Court that the Commission and HACI have been guilty of

such acts simply amplifies such earlier findings. The action

of these agencies in confining poor blacks to the inner city has

directly and proximately contributed to cause the suburban

school districts within Marion County, other than Washington

Township and Pike Township, to be and remain segregated

white schools, with segregated white faculties and administrative

staffs.

The evidence clearly shows that at the time of the passage

of the Uni-Gov Act in 1969, various annexation plans and

school consolidation plans had bogged down on the local level

because of the aforementioned opposition of the suburban

school corporations within Marion County, and their patrons.

However, the General Assembly of Indiana, with its members

elected on a state-wide basis, was not, or should not have

been, subservient to local pressures, and undoubtedly could

have legislated a county-wide school system for Marion County

as easily as it legislated a county-wide civil government. Under

existing law, both Federal as expressed in Brown v. Board of

A4l

Education, 349 U. S. 294, 75 S. Ct. 753, 99 L. Ed. 1083

(1955), and in Green v. County School Board, 391 U. S. 430,

88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968), and the law of Indiana

as expressed in Acts 1949, Ch. 186, p. 603, Burns Ind. Stat.

Ann. §§ 28-6106-28-6112 (1970), it had a duty to alleviate

the segregated condition then existing in IPS. When the General

Assembly expressly eliminated the schools from consideration

under Uni-Gov, it signaled its lack of concern with the whole

problem and thus inhibited desegregation with [sic] IPS.

The Court finds that the establishment of the Uni-Gov

boundaries without a like re-establishment of IPS boundaries,

given all of the other facts and circumstances set out in this

and former opinions of this Court, warrants a limited inter-

district remedy within all of Marion County, Indiana, as here-

after described.

Recently, the General Assembly has taken some steps to meet

its duty under the law—specifically by passing P. L. 94 of the

Acts of 1974, Burns Ind. Stat. Ann. §§ 28-5031-28-5040,

I. C. 1971, 20.-8.1-6.5-1, et seq., as added 1974. The Court of

Appeals in its opinion at 503 F. 2d 74 refers to this statute

as “rigidly limited in its application,” which may well be, but

in any event it does expressly recognize the power both of

United States district courts and of the courts of the State to

make orders regarding the transfer of pupils from one school

corporation to another if certain conditions be found to exist,

and affords a State policy and means for paying the costs of

such inter-district relief, all of which was lacking in Milliken.

Specifically, the statute provides a means and method whereby

a transferor school corporation may pay a transferee school

corporation for the cost of education ot a pupil transferred from

the One to the other in compliance with a court order issued

under the following conditions:

(1) In a suit where the transferor or transferee corporation

or corporations are parties, the Court must have found the

following:

A42

(a) A transferor corporation has violated the equal

protection clause of the Fourteenth Amendment to the

Constitution of the United States by practicing de jure

racial segregation of the students within its borders;

(b) A unitary school system within the meaning of

such amendment cannot be implemented within the bound-

aries of the transferor corporation; and

(c) The Fourteenth Amendment compels the Court to

order a transferor corporation to transfer its students for

education to one or more transferee corporations to effect

a plan of desegregation in the transferor corporation

which is acceptable within the meaning of such amend-

ment.

In the case at hand, we have a suit in which all of the

school corporations in Marion County, Indiana are parties, and

in which this Court has made, and now reiterates, the following

findings:

(a) The defendant Board of School Commissioners of

Indianapolis, Indiana (IPS) has violated the equal protection

clause of the Fourteenth Amendment to the Constitution of the

United States by practicing de jure racial segregation of the

students within its borders. United States v. Board of Sch.

Com’rs, Indianapolis, Ind., 332 F. Supp. 655 (S. D. Ind.

1971), affd 474 F. 2d 81 (7 Cir.), cert. den. 413 U. S. 920,

93 S. Ct. 3066, 37 L. Ed. 2d 1041 (1973).

(b) A unitary school system within the meaning of such

amendment cannot be implemented within the boundaries of

IPS. “In the long haul, it won’t work.” 332 F. Supp. at 678.

This Court found as a fact in its opinion of July 20, 1973,

368 F. Supp. 1197, et seq., that within the IPS boundaries

resegregation of desegregated schools occurs when the per-

centage of black students in a given school approaches 25%

to 30%, more or less. That finding has not been challenged by

anyone. Therefore, in a school corporation in which the per-

centage of black pupils has now reached more than 42% over

all, and with the Court of Appeals having ordered this Court

A43

to take further steps to desegregate the same, 503 F. 2d 80,

the Court is placed in an impossible situation unless the transfer

for education of a substantial number of black IPS pupils to

school corporations other than IPS is accomplished.

The Court therefore makes the following additional finding:

(c). The Fourteenth Amendment compels the Court to

order IPS to transfer a substantial number of its black students

to various added defendant school corporations for education

in order to effect a plan of desegregation in the transferor cor-

poration which is acceptable within the meaning of such amend-

ment.

The Court of Appeals has called the attention of this Court

to the rule of law that “white flight” is not an acceptable

reason for failing to dismantle a dual school system. 503 F. 2d

80, citing United States v. Scotland Neck City Board of Educa-

tion, 407 U. S. 484, 491, 92 S. Ct. 2214, 2218, 33 L. Ed. 2d

75 (1970). However, it does not follow that this Court must

ignore the probability of white flight in attempting to formulate

guidelines for IPS to follow in accomplishing the final desegre-

gation of its schools. In other words, as this Court sees it, white

flight may not be used as an excuse for inaction; it may, however,

supply the reason for a particular kind of action.

This approach requires the Court, once again, to review

applicable statistics. “The Constitution does not compel any

particular degree of racial balance or mixing, but when past

and continuing constitutional violations are found, some ratios

are likely to be useful starting points in shaping a remedy...”

North Carolina Bd. of Ed. v. Swann, 402 U. S. 43, 91 S. Ct.

1284, 28 L. Ed. 586 2d (1971).

For the school year 1974-75, there were 77,732 pupils

enrolled in IPS, excluding kindergarten and special education

students. Of these 44,756, or 57.57%, were white and 32,976,

or 42.43%, were black. Virtually all schools had an enrollment

of at least 15% black pupils, and 19 elementary schools and

one high school had enrollments in excess of 80% black. As

A44

the Court understands the order of the Court of Appeals, this

group of 20 schools must be further desegregated. As stated

above, this Court has previously found that to require all schools

to enroll about 42.43% black pupils would immediately accel-

erate white flight and unbalance the entire system beyond saving.

The Court respectfully declines to stultify itself by giving any

such direction.

The Metropolitan School Districts of Washington Township

and Pike Township are integrating rather rapidly, as a result

of demographic changes, so that Washington had a black per-

centage cf approximately 15% and Pike a black percentage of

approximately 12% for the past school year. These percentages

seem likely to increase for the coming year. If the percentage of

black students in the other suburban districts within Marion

County were equivalent to that of Washington Township, ap-

proximately 9,525 black students would need to be transferred

to such districts. The Court finds that the Fourteenth Amend-

ment compels it to order IPS to transfer, and for the added

defendant school corporations, other than Pike and Washington,

to receive approximately such number of black students, over

a period of time, in order to effect a plan of desegregation within

IPS which is acceptable within the meaning of such amendment.

Transfers shall not include kindergarten nor special education

students, and such students shall not be counted for the purpose

of determining the number of transferees to each school corpo-

ration. Further, for the school year 1975-76, transfers will be

limited to students in grades 1-9, inclusive, for a total of about

6,533 students, with the understanding that a student once

transferred to a suburban school corporation will continue in

such corporation until graduation from high school, unless the

residence of such student is moved from IPS.

The number of students to be transferred to a particular

school corporation shall be in such number as to cause the total

enrollment of pupils in such school corporation, after the trans-

fers have been accomplished, to be approximately 15% black.

As an example, Beech Grove City Schools for the school year

A45

1974-75 had an all whiic enrollment of 1,865 in grades 1-9,

excluding special education. The 1,865 should be 85% of the

school population after transfer; therefore 1% would be

21.9411, and 15% would be 15 x 21.9411 or 329. Approxi-

mately 329 black students would be transferred from IPS to

Beech Grove in grades 1-9 for the coming school year. For the

ensuing years, the original transferees would continue in the

Beech Grove schools, and a new first grade group in an appropri-

ate number would be transferred. Transfers by grade should be

proportionate to the number of students enrolled per grade in

the transferee schools for the past school year. Fortunately, the

reports on classroom space filed by the added defendants reflects

that, without exception, there is ample space available in which

to house the transferees; also, IPS has ample transportation

facilities available.

It is possible that transfers of black students to Washington

Township shonld be made for education at the J. Everett Light

Career Center; ruling on this point is reserved pending clari-

fication as to certain statistical information in the record.

With regard to the present transfer of pupils, as above de-

scribed and as will be more particularly set out in an accompany-

ing order and judgment, the respective superintendents of the

transferee school corporations involved, or their nominees, are

directed to meet with the superintendent of IPS, or his nominees,

forthwith in order to work out the exact names, numbers, and

grades of pupils to be transferred. Reasonable deviations from

exact statistical scheduling are anticipated, and may be agreed

upon, subject to the approval of the Court. Disagreements, if

any, shall be promptly referred to the Court for resolution. The

transfers shall be effective, and transfer of pupils shall begin

on the first day of the 1975-76 school year at each of the

various transferee schools.

Once the transfer pupils have been identified, the defendant

IPS is directed to submit to the Court a final plan for desegre-

gation of the remaining schools within IPS. Alternate plans may

A46

be submitted, in the discretion of IPS. Such plan or plans shall

consider the high schools, as well as elementary schools. Kinder-

garten students and special education students need not be taken

into account in computing black-white ratios in the various

schools. Such plan or plans shall be submitted on or before

October 15, 1975 and, if one be approved, it shall be put into

effect at the beginning of the second semester of the 1975-76

school year, except as the Court may otherwise order.

As previously found, the location by HACI of all of its

public housing facilities within IPS territory has had a major

influence toward keeping black students confined within IPS,

while at the same time keeping the suburban school systems

virtually all white. Such conduct should and will be enjoined,

so as to prohibit HACI from locating any additional public

housing units within the boundaries of IPS. Furthermore, HACI

should and will be enjoined from reopening Lockefield Gardens,

a public housing project which is now vacant, to tenants other

than the elderly.

The case for the intervening Buckley plaintiffs and their

class was filed and has been presented by John O. Moss and

John Preston Ward. The Court previously found them entitled

to recover their reasonable attorneys fees and expenses, pur-

suant to 20 U. S. C. § 1617, but no fees have as yet been

awarded, and the Court of Appeals has requested a further

finding on the issue. 503 F. 2d 86. It is the Court’s opinion

that the Buckley plaintiffs should be regarded as the “prevailing

parties,” within the meaning of such statute, if the rulings of

this Court relating to transfer of pupils become final, since they

are the only parties who have contended for a remedy going

beyond the IPS strait jacket.

Orders will be entered in accordance with this memorandum.

Dated this Ist day of August, 1975.

/s/ S. HucH DILuin,

S. Hugh Dillin,

Judge.

A47

UNITED STATES District Court,

Southern District of Indiana,

Indianapolis Division.

* * (Title Omitted in Printing) * *

JUDGMENT.

The Court having this day filed a memorandum of decision in

the above entitled action (Indianapolis IV), containing various

findings requiring orders and judgments, such orders and ind:

ments are hereinafter set out.

Recognizing that some or all of the parties to this ‘tile

may wish to appeal the judgments entered herein by this Court

as to them, and as a convenience to all parties, this Court will

designate by separate subnumber that particular judgment di-

rected against each particular defendant or defendants, in order

that the parties appealing may properly designate in any notice

of appeal filed herein that particular judgment or judgments so

appealed. The defendant The Board of School Commissioners

of the City of Indianapolis, Indiana will be referred to as “IPS.”

a. IP 68-C-225A. It is ordered and adjudged that IPS is

directed to transfer to The Metropolitan School District of

Decatur Township, Marion County, Indiana, 567 negro students

to be enrolled in grades 1-9 for the 1975-76 school year, and

to make continuing transfers of such students for ensuing school

years, until the further order of the Court. Said transferee school

corporation is ordered to accept such transfer students and enroll

them accordingly. All of the foregoing shall be accomplished in

accordance with the applicable provisions of said Memorandum

of Decision, which are incorporated in this subparagraph as if

set forth herein.

b. IP 68-C225B. It is ordered and adjudged that IPS is

directed to transfer to The Franklin Township Community

A48

School Corporation, Marion County, Indiana, 326 negro stu-

dents to be enrolled in grades 1-9 for the 1975-76 school year,

and to make continuing transfers of such students for ensuing

school years, until the further order of the Court. Said trans-

feree school corporation is ordered to accept such transfer stu-

dents and enroll them accordingly. All of the foregoing shall be

accomplished in accordance with the applicable provisions of

said Memorandum of Decision, which are incorporated in this

subparagraph as if set forth herein.

c. IP 68-C225C. It is ordered and adjudged that IPS is

directed to transfer to The Metropolitan School District of

Lawrence Township, Marion County, Indiana, 930 negro stu-

dents to be enrolled in grades 1-9 for the 1975-76 school years,

and to make continuing transfers of such students for ensuing

school years, until the further order of the Court. Said transferee

school corporation is ordered to accept such transfer students

and enroll them accordingly. All of the foregoing shall be ac-

complished in accordance with the applicable provisions of said

Memorandum of Decision, which are incorporated in this sub-

paragraph as if set forth herein.

d. IP 68-C-225D. It is ordered and adjudged that IPS is

directed to transfer to The Metropolitan School District of

Perry Township, Marion County, Indiana, 1,555 negro stu-

dents to be enrolled in grades 1-9 for the 1975-76 school year,

and to make continuing transfers of such students for ensuing

school years, until the further order of the Court. Said trans-

feree school corporation is ordered to accept such transfer stu-

dents and enroll them accordingly. All of the foregoing shall be

accomplished in accordance with the applicable provisions of

said Memorandum of Decision, which are incorporated in this

subparagraph as if set forth herein.

e. IP 68-C-225E. It is ordered and adjudged that IPS is

directed to transfer to The Metropolitan School District of

Warren Township, Marion County, Indiana, 1,206 negro stu-

ents to be enrolled in grade 1-9 for the 1975-76 school year,

A49

and to make continuing transfers of such students for ensuing

school years, until the further order of the Court. Said trans-

feree school corporation is ordered to accept such transfer

students and enroll them accordingly. All of the foregoing shall

be accomplished in accordance with the applicable provisions

of said Memorandum of Decision, which are incorporated in

this subparagraph as if set forth herein.

f. IP 68-C-225F. It is ordered and adjudged that IPS is

directed to transfer to The Metropolitan School District of

Wayne Township, Marion County, Indiana, 1,383 negro stu-

dents to be enrolled in grades 1-9 for the 1975-76 school year,

and to make continuing transfers of such students for ensuing

school years, until the further order of the Court. Said trans-

feree school corporation is ordered to accept such transfer

students and enroll them accordingly. All of the foregoing shall

be accomplished in accordance with the applicable provisions

of said Memorandum of Decision, which are incorporated in

this subparagraph as if set forth herein.

g. IP 68-C-225G. It is ordered and adjudged that IPS is

directed to transfer to the School City of Beech Grove, Marion

County, Indiana, 329 negro students to be enrolled in grades

1-9 for the 1975-76 school year, and to make continuing trans-

fers of such students for ensuing school years, until the further

order of the Court. Said transferee school corporation is ordered

to accept | such transfer students and enroll them accordingly.

All of the foregoing shall be accomplished in accordance with

the applicable provisions of said Memorandum of Decision,

which are incorporated in this subparagraph as if set forth

herein.

h. IP 68-C-225H. It is ordered and adjudged that IPS is

directed to transfer to the School Town of Speedway, Marion

County, Indiana, 237 negro students to be enrolled in grades

1-9 for the 1975-76 school year, and to make continuing trans-

fers of such students for ensuing school years, until the further

order of the Court. Said transferee school corporation is ordered

A50

to accept such transfer students and enroll them accordingly.

All of the foregoing shall be accomplished in accordance with

the applicable provisions of said Memorandum of Decision,

which are incorporated in this subparagraph as if set forth

herein.

i. IP 68-C-225I. It is ordered and adjudged that IPS prepare

and file with the Court, on or before October 15, 1975, a plan,

or alternative plans, for the final desegregation of its schools,

taking into account the transfer of pupils ordered herein.

j. IP 68-C-225J. It is ordered and adjudged that The

Housing Authority of the City of Indianapolis be, and it is

permanently enjoined from constructing or in any manner ac-

quiring any structure within the area served by IPS for the

purpose of offering the same, or any parts or portions thereof,

for rent as a family type public housing project.

k. IP 68-C-225K. It is ordered and adjudged that The

Housing Authority of the City of Indianapolis be, and it is

permanently enjoined from renovating its presently owned

public housing project known as Lockefield Gardens for use

as a family type public housing project, or to utilize the same,

or any parts or portions thereof, for such purpose. Nothing

herein contained shall be construed as enjoining the use of such

structure for public housing for the elderly.

The Court retains continuing jurisdiction of this action, and

the parties thereto, together with the right to modify or supple-

ment any orders or judgments herein or heretofore made.

Dated this Ist day of August, 1975.

/s/ S. HucH Diu,

S. Hugh Dillin,

Judge.

AS1

UNITED STATES of America,

Plaintiff,

DONNY BRURELL BUCKLEY and ALYCIA MARQUESE BUCKLEY,

by their parent and next friend, Ruby L. Buckley, on behalf

of themselves and all Negro school age children residing in

the area served by original defendants herein, Intervening

Plaintiffs,

vs.

THE BOARD OF SCHOOL COMMISSIONERS OF THE CITY OF

INDIANAPOLIS, INDIANA, ET AL.,

Defendants,

Otis R. Brown, as Governor of the State of Indiana, et al.,

Added Defendants,

CITIZENS POR QUALITY SCHOOLS, INC.,

Intervening Defendant,

COALITION FOR INTEGRATED EDUCATION,

Amicus Curiae,

HAMILTON SOUTHEASTERN SCHOOLS, HAMILTON

CouNTY, INDIANA, ET AL.,

Additional Added Defendants.

No. IP 68-C-225.

UNITED STATES DisTRICT Court,

S. D. Indiana,

Indianapolis Division.

July 20, 1973.

As Corrected Nov. 12, 1973.

Supplemental Opinion Dec. 6, 1973.

A52

MEMORANDUM OF DECISION

DiLLwy, District Judge.

I.

Introduction

This is a school desegregation action originally brought

by the United States on May 31, 1968, pursuant to Section

407(a) and (b) of the Civil Rights Act of 1964, 42 U. S. C.

§ 2000c-6(a) and (b) against The Board of School Commis-

sioners of Indianapolis, Indiana (hereinafter IPS), the members

of the Board, and its appointed Superintendent of Schools.

On August 18, 1971, this Court found and comcluded that

IPS was guilty of unlawfully segregating the public schools with-

in its boundaries. That decision was unanimously affirmed by the

United States Court of Appeals for the Seventh Circuit and

review was denied by the Supreme Court of the Uinited States,

without dissent. United States v. Board of Sch. Com’rs, India-

napolis, Ind., D. C., 332 F. Supp. 655, affd 7 Cir. 474 F. 2d

81, cert. den., 413 U. S. 920, 93 S. Ct. 3066, 3°77 L. Ed. 2d

1041 (1973). Such issue is res judicata.

In contemplating a remedy to vindicate the righhts of Negro

school children, this Court concluded that it could Ihave ordered

a massive “fruit basket” scrambling of students within IPS to

achieve exact racial balancing. But the Court also concluded

that in the long run, given the steadily rising percentiage of Negro

pupils within IPS, the racial composition of IPS would become

nearly all Negro because of an acceleration in the departure

of white families with children from IPS. In this connection the

Court discussed the “tipping-point” factor—the point at which

white exodus from a school unit is accelerated by increase of

Negro students beyond a certain variable percenit, and noted

that the tipping-point/resegregation problem would become in-

AS3

significant if the boundaries of IPS were enlarged to include all

of Marion County and a portion of its contiguous metropolitan

region. The Court does not consider its conclusions in this area

as res judicata.

In order to provide an appropriate adverse setting for further

consideration of the legal and practical appropriateness of a

metropolitan plan, the Court ordered the plaintiff United States

to secure the joinder of necessary parties and seek further re-

lief to determine the answers to certain questions posed by the

Court.

On September 7, 1971, the United States (hereinafter the

Government), pursuant to such order, moved to add as parties

defendant all school corporations in Marion County, other than

IPS. The motion was granted. However, the Government failed

to assert any claims or seek any relief against such added de-

fendants. A few days later the Buckley plaintiffs filed their peti-

tion to intervene in this action in their own right and as repre-

sentatives of a class consisting of Negro school age children

residing in Marion County, Indiana, who are required to attend

segregated schools operated by IPS. The petitioners alleged that

their interests and those of the class they represented were not

being adequately protected by the original plaintiff, the United

States, because the Government had failed to seek relief against

the added school defendants. The Court granted the petition

to intervene on September 14, 1971.

The Buckley intervening plaintiffs (hereinafter plaintiffs)

eventually joined as added defendants Edgar D. Whitcomb

(since succeeded by Otis R. Bowen), as Governor of the State

of Indiana; Theodore Sendak, as Attorney General of Indiana;

John J. Loughlin (since succeeded by Harold H. Negley), as

Superintendent of Public Instruction of the State of Indiana;

The Indiana State Board of Education, and nineteen school

corporations within and without Marion County, Indiana (in-

cluding the ten in-county corporations joined by the Govern-

ment), as follows:

A54

Marion County

The Metropolitan School District of Decatur Township (here-

inafter Decatur)

The Franklin Township Community School Corporation

(hereinafter Franklin)

The Metropolitan School District of Lawrence Township

(hereinafter Lawrence)

The Metropolitan School District of Perry Township (here-

inafter Perry)

The Metropolitan School District of Pike Township (here-

inafter Pike)

The Metropolitan School District of Warren Township (here-

inafter Warren)

The Metropolitan School District of Washington Township

(hereinafter Washington )

The Metropolitan School District of Wayne Township (here-

inafter Wayne)

School City of Beech Grove (hereinafter Beech Grove)

School Town of Speedway (hereinafter Speedway)

Boore County

Eagle-Union Community School Corporation (hereinafter

Eagle)

Johnson County

Greenwood Community School Corporation (hereinafter

Greenwood )

Hamilton County

Carmel-Clay Schools (hereinafter Carmel)

Hancock County

Greenfield Community School Corporation (hereinafter

Greenfield )

A55

Mt. Vernon Community School Corporation (hereinafter

Mt. Vernon)

Hendricks County

Avon Community School Corporation (hereinafter Avon)

Brownsburg Community School Corporation (hereinafter

Brownsburg)

Plainfield Community School Corporation (hereinafter

Plainfield )

Morgan County

Mooresville Consolidated School Corporation (hereinafter

Mooresville)

The geographical areas served by IPS and added defendants,

with the exception of Greenfield, and Union Township of Eagle-

Union, are reflected on Figure 1. Also represented thereon, for

reasons which will hereafter appear, are territories or parts of

territories served by certain other school corporations bordering

on Marion County, namely, Clark-Pleasant Community School

Corporation (Clark) and Center Grove Community School

Corporation (Grove) of Johnson County; Delaware and Fall

Creek Townships, a part of Hamilton Southeastern School Cor-

poration of Hamilton County; Sugar Creek Township, a part

of Southern Hancock County Community Schools (Hancock)

of Hancock County; and Moral Township, a part of North-

western Consolidated School Corporation of Shelby County

(Northwestern) of Shelby County.

The intervening defendant Citizens of Indianapolis for Quality

Schools, Inc., is a not-for-profit corporation whose members are

parents of children in IPS. Its initial attempt to intervene in

this action, in opposition to the original complaint of the Govern-

ment, was denied by this Court, although the Court permitted it

to attend the original trial, present argument, and file a brief

amicus curiae. The ruling was appealed and affirmed. United

States v. Board of Sch. Com’rs, Indianapolis, Ind., 466 F. 2d 573

(7 Cir. 1972). Subsequently, however, intervention was per-

AS6

mitted and intervening defendant participated fully in the most

recent trial.

Coalition for Integrated Education is an unincorporated as-

sociation of individuals favoring a metropolitan plan of school

desegregation, which filed a petition for leave to appear amicus

curiae for the purpose of presenting a desegregation plan, and

a supplemental motion for leave to file a brief. The names of

the members of the association are attached to the original peti-

tion. The motion for leave to file a brief as amicus curiae is

granted. The Court reserves ruling on the petition to file a

plan, as premature.

IL.

The Issues

The issues of fact submitted for trial are as follows:

1. Whether or not desegregation of IPS within its present

boundaries (sometimes referred to as an “Indianapolis Only

Plan”) can be accomplished as required by the equal protection

clause of the Fourteenth Amendment in such a manner as to

“work,” within the meaning of Green v. County School Board,

391 VJ. S. 430, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968):

“The burden on a school board today is to come forward with

a plan that promises realistically to work . . .”

2. Whether or not any of the added defendant officials of

the State of Indiana, their predecessors in office, or the added

defendant The Indiana State Board of Education have acted

to promote segregation, or failed to carry out duties imposed

upon them by law in such a manner as to promote segregation or

inhibit desegregation within IPS.

3. Whether or not any of the added defendant school cor-

porations have acted to promote segregation either within IPS

or within their own boundaries.

The issues of law presented are as follows:

1. Whether or not the acts of de jure segregation heretofore

found to have been practiced by IPS can be imputed to the

AS7

State of Indiana such that appropriate State officials or agencies

may be directed to afford relief to vindicate the Fourteenth

Amendment rights of plaintiff and their class.

2. Whether or not appropriate State officials or agencies

have the power to direct reorganization of IPS with other

school corporations, or to direct the transfer or exchange of

IPS pupils to or with other school corporations in order to

vindicate such rights.

3. Whether or not this Court may act in the manner just

described to vindicate such rights if responsible officials or

agencies of the State fail to do so within a reasonable time.

Ii.

Viability of an Indianapolis Only Plan

As stated above, the Court in its original opinion expressed

some doubts as to whether or not a stable desegregation plan

could be established within the confines of IPS, based upon the

evidence adduced at that trial, which was all to the effect

that when the percentage of Negro pupils in a given school

approaches 40%, more or less, the exodus of white pupils from

such a school becomes accelerated and irreversible, resulting

in resegregation. However, additional evidence on this issue was

adduced at the recent trial, and the Court bases its findings

exclusively Wpon such latter evidence.

Having considered such evidence, the Court finds it to be a

fact that when the percentage of Negro pupils in a given school

approaches 25% to 30%, more or less, in the area served by

IPS, the white exodus from such a school district becomes ac-

celerated and continues, as demonstrated by Figure 2. All

witnesses agreed that once a school becomes identifiably black,

it never reverses to white, in the absence of redistricting. There-

fore, progressions from white to black are irreversible once the

critical percentage has been reached in the absence of interven-

AS5S8

tion through redistricting. Below the critical percentage, how-

ever, schools tend to remain stable, as demonstrated on Figure

3. With further reference to Figure 3, it will be noted that

there is one elementary school within IPS which has remained

stable over the past five years with a high degree of integration.

This lone exception is School 86, which the Court judicially

knows to be located in the Butler-Tarkington area of the city,

mentioned in the testimony as an area in which the residents,

black and white, have worked together for the past several

years in a community relations program designed to maintain the

stability of the neighborhood as an integrated community. The

results achieved show dramatically that such a program can be

made to work, but unfortunately the other statistics illustrate

all too well that the Butler-Tarkington situation is the exception

and not the rule.

The Court has no reason to find or believe that a crash IPS-

wide community relations program, even if one were in progress

(and none is), would achieve a system-wide stablization in time

to preserve the entire system from becoming identified as racially

black. The Court further finds that, given the present percentage

of Negre pupils in the IPS system, which has risen to 41.1%

since the previous trial, and the further fact that black enroll-

ment in IPS will in the near future surpass white enrollments

therein, as graphically illustrated on Figure 4, the right of

plaintiffs and their class to attend schools which are not racially

identifiable, as provided by the equal protection clause of the

Fourteenth Amendment, cannot be accomplished within the

present boundaries of IPS in a way that will, work for any signifi-

cant period of time.

In other words, it is apparent that as a sheer exercise in

mathematics, it would be possible for this Court to order de-

segregation of IPS on a 58.9%-41.1% basis, or some basis

similar therto, so that no schoo! could, for the time being, be

racially identifiable as a black school. As a matter of fact, IPS

announced rather dramatically during the recent trial that such

AS9

a plan would be put into effect for the coming school year, but

rejected such plan at its recent meeting of July 16, 1973, as the

Court knows judically. As demonstrated, however, such a plan,

if put into effect, would have the effect of an immediate ac-

celeration of white students into suburban white enclaves or

private szhools, so that IPS as a whole would predictably have a

black majority within a matter of two or three years. This is

not the Court’s idea of a plan which “promises realistically to

work.”

On the other hand, the alternative to such a plan is to limit

desegregation to figures which are statistically tolerable insofar

as “white flight” is-concerned, such as to provide that schools

which now contain few or no Negro students accept additional

numbers of the minority race, not to exceed perhaps 20% to

30%. Such a plan would, of course, have the effect of afford-

ing education in a desegregated setting to those minority race

students attending schools in which they would make up the

minority of 20% to 30%; but considering the total percentage

of minority race students in the IPS system, it is equally obvious

that such a plan would leave a large number of schools with

a minority percentage in excess of 50%, which would not only

make them racially identifiable schools, but would once again

accelerate white flight from those particular schools.

On this key question as to whether a meaningful desegrega-

tion plan could be put into effect within the confines of IPS,

the Court heard expert opinions from numerous witnesses

called by each side. As usual, they disagreed. However, in the

Court’s opinion, a clear preponderance of the expert opinion

was that no feasible plan could be devised. Those who testified

to the contrary tended to qualify their opinions, and in some

instances the facts presented by such witnesses simply did not

support their conclusions.

For example, Dr. Mercer, a witness called by the Govern-

ment, testified as to numerous facts having to do with desegra-

tion efforts in the State of California, and presented the City

A60

of Riverside as a city where desegregation was apparently

working well. However, it developed that the Riverside plan

was put into effect voluntarily, accompanied by much com-

munity relation effort sponsored by the school and the local

news media, and finally that the percentage of minority race

students in the entire system was less than 25%. None of these

facts have any relation to the situation in Indianapolis. On the

other hand, the witness’s own Figure 7, which is the last sheet

of Government Exhibit 14, discloses the sharp and dramatic

drop in “other-white” students in Inglewood, Pasadena, and

San Francisco following public announcement that such schools

would be required to desegregate, later followed by the filing

of legal actions to accomplish such end. (The term “other-

white” in California refers to those persons called “Anglos” in

Denver and simply “whites” or “Caucasians” in Indianapolis.

The California “other-white” is a white who does not have a

Spanish surname. )

The testimony of another defense expert, Dr. Hooker, was

completely demolished by cross-examination showing that in

his published articles he had expressed views opposite to those

given in this case, and Dr. Dodson testified that a metropolitan

plan would be superior to one limited to IPS.

The solution, therefore, must be to look elsewhere, if this

can be done within the law.

IV.

Responsibility of the State of Indiana.

In its previous opinion of August 18, 1971, the Court

devoted several pages of its opinion to tracing the history of

segregation within Indiana beginning 1800, demonstrating that

the State, through its legislative, executive, and judicial branches

had practiced all manner of discrimination against Negroes,

not only in the field of education, but in housing and innumer-

able sectors of their social and economic life, as well as in the

area of civil rights. 332 F. Supp. pp. 658-665. None of such

Aé1

regrettable history, of which the Court then took judicial notice,

has been refuted by any added defendant, with the exception

of a quibble about the effect of certain school laws passed in

1961 and thereafter. The Court therefore incorporates such

previous history into this opinion by reference, save to the

extent that its discussion of Acts of the General Assembly of

1961 and thereafter will be reviewed further hereafter.

Before entering into a discussion as to the specific acts or

omissions of State officials having a bearing on the problems

of segregation and desegregation, it seems appropriate at this

point to set out in detail the role of the State in public educa-

tion in Indiana, touched upon rather briefly in this Court's

previous opinion.

The original seaboard colonies were, of course, founded in

the 17th and 18th Centuries, when the concept of public educa-

tion was unheard of. As a result, such schools which existed

therein in the early days were either church supported or were

supported strictly by private funds. The relics of that system

linger today in various states which evolved from the original

colonies so that, for example, the decision in Bradley v. School

Board of City of Richmond, Virginia, 462 F. 2d 1058 (4 Cir.

1972), (“Richmond”), based its decision reversing an order of

the District Court for a metropolitan desegregation plan in Rich-

mond and surrounding counties primarily on the basis that

the operation of public schools within the different counties of

the Commonwealth of Virginia is a matter of local option, and

that, if the option be exercised, the power to operate, maintain

and supervise the public schools in a given county is in the

exclusive jurisdiction of the local school board and not the

state.

However, following the successful conclusion of the Revolu-

tionary War, it was foreseen by the Congress that an educated

citizenry was vital to maintaining an enlightened self-govern-

ment as provided for in the Constitution, and hence the educa-

tion of all citizens became a concern of the Government. Thus

A62

it was that when the Northwest Territory was formed out of

lands formerly claimed by the Commonwealth of Virginia, the

Northwest Ordinance of 1787 provided:

“Religion, morality and knowledge, being necessary to

good government and the happiness of mankind, schools

and the means of education shall forever be encouraged.”

Art. Il.

The State of Indiana along with the states of Michigan, Ohio,

Illinois, Wisconsin, etc., were, of course, later formed out of

the Northwest Territory, and such states accordingly provided

by their respective constitutions for the establishment of systems

of public education. The original 1816 Constitution of Indiana,

Sections 1 and 2, Article 9, paraphrased the above quoted

language from the Northwest Ordinance and provided that it

should be the duty of the General Assembly to provide by law

for a general system of education, ascending in a regular gradua-

tion from township schools to a state university wherein tuition

would be free, and equally open to all. Article 8, Section 1, of

the present Constitution, adopted in 1851, carries forward the

duty of the State in the following language:

“Knowledge and learning, generally diffused throughout

a community, being essenial to the preservation of a free

government; it shall be the duty of the General Assembly

to encourage, by all suitable means, moral, intellectual,

scientific, and agricultural improvement; and to provide,

by law, for a general and uniform system of Common

Schools, wherein tuition shall be without charge, and

equally open to all.”

[1-3] Under the 1851 Indiana Constitution, the common

schools as a whole are made a state institution. Ratcliff v. Dick

Johnson School Tp.; 204 Ind. 525, 185 N. E. 143 (1933);

Ehle v. State, 191 Ind. 502, 133 N. E. 748 (1922); City of

Lafayette v. Jenners, 10 Ind. 74 (1857). The State owns and

maintains the common schools just as it does its public institu-

tions of every kind. State v. Haworth, 122 Ind. 462, 23 N. E.

946 (1890). School corporations within the system only hold

A63

title to such schools as trustees and the State has the right to

change trustees by annexation at will. Board of School Com’rs

v. Center Tp., 143 Ind. 391, 42 N. E. 808 (1896). The legisla-

ture may consolidate schools by resolution without notice to the

voters or without any referendum or election. Fruit v. Metro-

politan Sch. Dis. of Winchester, etc., 241 Ind. 621, 172 N. E.

2d 864 (1961).

[4,5] It was the intention of the framers of the Constitu-

tion to place the common schools under the direct control and

supervision of the State. Green Castle Township v. Black, 5

Ind. 557 (1854); State v. Eddington, 208 Ind. 160, 195 N. E.

92 (1935). The authority over the schools and school affairs

resides exclusively within the dominion of the legislature and

the school system is a centralized and not a localized form of

school government. Gruber v. State, 196 Ind. 436, 148 N. E.

481 (1925); Jordan v. City of Logansport, 178 Ind. 629, 99

N. E. 1060 (1912); State v. Ogan, 159 Ind. 119, 63 N. E.

227 (1902); State v. Haworth, supra; State v. Eddington,

supra.

[6] Under Article 8 of the Indiana Constitution, the power

of the General Assembly to regulate the school system is

practically unlimited. Kostanzer v. State, 205 Ind. 536, 187

N. E. 337 (1933). The employees of a school corporation

undertake their duties not as officers of local units of self govern-

ment but as officers of the public school system, which is a

State institution. State v. Eddington, supra.

[7] The General Assembly has the power to prescribe the

terms of the employment contracts to be executed by school

corporations, Indiana ex rel. Anderson v. Brand, 303 UV. S. 95,

58 S. Ct. 443, 82 L. Ed. 685 (1937), and the power to provide

a general system of licenses for those desiring to teach. Stone v.

Fritts, 169 Ind. 361, 82 N. E. 792 (1907).

[8] While the State in acting directly to carry out its educa-

tional functions under Article 8, Section 1, is not forbidden to

create and use local corporations for that purpose, it assumes

A64

responsibility for the conduct of these corporations. Such cor-

porations were and still are involuntary corporations established

as part of the school system of Indiana and are but agents of the

State for purposes of administering the State system of educa-

tion. Indiana ex rel. Anderson v. Brand, supra; Campbell v.

City of Indianapolis, 155 Ind. 186, 57 N. E. 920 (1900);

Freel v. School City of Crawfordsville, 142 Ind. 27, 41 N. E.

312 (1895). Such corporations may only exercise the authority

given them by the State, Ratcliff v. Dick Johnson School Tp.,

supra; Ehle v. State, supra, and the conduct and practices of

these agent corporations must be considered acts of the State.

Hummer v. School City of Hartford City, 124 Ind. App. 30,

112 N. E. 2d 891 (1953), overruled in part on other grounds,

Flowers v. Bd. of Com’rs of County of Vanderburgh, 240 Ind.

668, 168 N. E. 2d 224 (1960).

Robinson v. Schneck, 102 Ind. 307, 1 N. E. 698 (1885),

held that it was constitutional for the legislature to provide

by general law for local school authorities to levy school taxes.

Some of the general language in that case could suggest that

local school corporations are to be treated as local units of

self-government, as in Virginia. To clear up such an implica-

tion, the Supreme Court of Indiana in State v. Haworth, supra,

made it clear that Robinson did not change the relationship of

school corporations as agents of the State. The majority opinion

specifically rejected the dissenting opinion’s argument based on

Robinson fat the school corporations in the State are units of

self-government in which local control of the schools is left

with the people within such corporation. The majority held in-

stead that the authority and control of schools and school affairs

is vested exclusively in the General Assembly and that such

affairs are intrinsically matters of State concern and not of a

local jurisdiction. “In such matters, the State is a unit, and the

legislature the source of power.” To the same effect, see Ft.

Wayne Community Schools v. State, 240 Ind. 57, 159 N. E.

2d 708 (1959).

A65

To summarize in the words of the court in State v. Mutschler,

232 Ind. 580, 115 N. E. 2d 206 (1953):

“The people of Indiana have translated into a fundamental

constitutional postulate the belief that the general diffusion

of knowledge and learning throughout a community is es-

sential to the preservation of free government, and in

harmony with this constitutional postulate the Constitution

recognizes that the business of education is a governmental

function and makes public education a function of state

government as distinguished from local government. . . .

It was evidently the intention of the framers of the Con-

stitution to place the common schools under the direct

control and supervision of the state, and make it a quasi-

department of the state government, a centralized and not

a localized, form of school government.” (Emphasis

added. )

The Indiana statutes on education are testimony to the con-

stitutional and decisional history just discussed. The Indiana

State Board of Education and its predecessor have been given

great powers, and “It shall be the duty of the board to coordi-

nate the work of the various commissions so as to bring about

an effective and an (sic) unified school program and to make

determinations in matters of jurisdiction between such commis-

sions in accordance with the law, but all actions of the commis-

sions within their respective jurisdictions shall be final.” The

“commissions” are on general education, textbook adoption, and

teacher training and licensing. Indiana Code 1971, 20-1-1-1 &

20-1-1-2, Burns Ind. Ann. Stat. (hereinafter “Burns”) § 28-

101, 28-102.

Following said Section 20-1-1 of the Indiana Code of 1971,

the first section having to do with schools, there follow some 349

solid pages of statutes enacted by the General Assembly regu-

lating virtually every phase of school operation, printed single

spaced, on unusually wide paper, in a type style reminiscent of

that used in the exclusions section of an insurance policy. The

annotated version of these laws occupies two complete volumes

of Burns, comprising some 1,154 standard pages (but with an-

A66

notations in small type), exclusive of indices and pocket parts.

Burns, Vol. 6, parts 3 and 4. The administrative rules and regu-

lations concerning education consume an additional 126 pages.

Burns Ind. Adm. R. & Reg., Title 28. For obvious reasons, the

Court will attempt no summary of this vast compendium, except

to say generally that all phases of the operation of the public

schools are regulated, in one way or another, by the State.

Of particular importance here, however, should be noted the

statute, in effect from 1949 until 1972, which vested in the com-

mission on geneal education of The Indiana State Board of Edu-

cation the power and duty to regulate new school sites and build-

ings or any modifications of or additions to existing buildings,

and established a division of schoolhouse planning under a di-

rector to be appointed by the state superintendent of public in-

struction with the approval of the governor. IC 1971, 20-1-2-1

to 20-1-2-6, Burns 28-301 to 28-306. Such law was repealed

in 1972, but only because it was at such time replaced by a simi-

lar law. IC 1971, 20-1-1-6, as added 1972; Burns 28-109

(Pocket supp.).

Questions identical to those presented in this action have been

considered by the Court of Appeals for the Sixth Circuit in

Bradley et al. v. Milliken et al., 484 F. 2d 215 (1973). In

upholding the trial court’s determination that a metropplitan

remedy would be appropriate to accomplish cmmaiie of

the public schools of Detroit, it based its holding upon discri-

minatory practices on the part of both the Detroit school board

and the State of Michigan found to be “significant, pervasive and

causally related” to the segregation in the Detroit school system.

The discriminatory practices of the Detroit school board were,

in general, acts of commission identical to those found to have

occurred in Indianapolis, such as gerrymandering school attend-

ance zones, making boundary changes which promoted segrega-

tion, providing optional attendance zones in “changing” areas,

assigning teachers and staff so as to mirror the racial complex-

ion of a school’s student body, assigning students to elementary

A67

and high schools according to the racial patterns of the feeder

schools, selecting sites for new schools and building additions to

existing schools in such a fashion as to separate the races, etc.

As between the four discriminatory practices charged to the

State, the Sixth Circuit held:

“The clearest example of direct State participation in en-

couraging the segregated condition of Detroit public

schools, however, is that of school construction in Detroit

and the surrounding suburban areas. Until 1962 the State

Board of Education had direct statutory control over site

planning for new school construction. During that time,

as was pointed out above, the State approved school con-

struction which fostered segregation throughout the Detroit

Metropolitan area. . . . Since 1962 the State Board has

continued to be involved in approval of school construc-

tion plans.”

[9] In the case at hand the evidence shows that Arlington

High School was opened in 1961 with a Negro enrollment of

0.23%, Northwest High School was opened in 1963 with a

Negro enrollment of 0.0%, and John Marshall High School was

opened in 1967 with a Negro enrollment of 0.3%. Inspection of

maps in evidence discloses that Arlington is less than a mile

from the extreme northeast corner of IPS, Marshall is squarely

on the extreme east line of IPS, and Northwest slightly less than a

mile from the extreme west line of IPS. This Court found in its

previous opinion, and finds once again, that the placement of

such schools constituted acts of de jure segregation on the part

of IPS. The former holding has already been affirmed by the

Seventh Circuit, 474 F. 2d at pp. 87, 88. See Swann v. Char-

lotte-Mecklenburg Board of Education, 402 U. S. 1, 91 S. Ct.

1267, 28 L. Ed. 2d 554 (1971).

Here, as in Michigan, the sites for the three high schools men-

tioned were necessarily approved by the appropriate agencies

of defendants The Indiana State Board of Education and the

Superintendent of Public Instruction. On the authority of Brad-

ley, these were acts of de jure segregation on the part of officials

A68

of the State. Similar examples could be pointed out with regard

to site selection for construction and enlargement of elementary

schools, but the foregoing examples are so obvious that there

is no need to labor the point.

[1%] Further, at all times since 1949, the Indiana stat-

ute forbidding racial segregation in educational opportunity

has been in effect, IC 1971, 20-8-6-1 et seq., Burns 28-6101 et

seq. and the mandate of the Supreme Court of the United States

in Brown v. Board of Education of Topeka, 347 U. S. 483, 74

S. Ct, 686, 98 L. Ed. 873 (1954), has been the law since

1954. According to the evidence in this case, the officials of

the State charged with oversight of the common schools have

done almost literally nothing, and certainly next to nothing, to

furnish leadership, guidance, and direction in this critical area.

Even at this late date, the division of equal educational oppor-

tunity of the Indiana Department of Public Instruction, headed

by the State Superintendent, consists of but four staff members

and a secretary, to cover the entire State of Indiana, and has

only been in existence for the past two years pursuant to a

Federal grant. The Court finds that the failure of the State

Superintendent and the Board of Education to act affirmatively

in support of the law was an omission tending to inhibit

desegregation.

V.

Acts of Added Defendant School Corporations

There was no evidence that any of the added defendant school

corporations have committed acts of de jure segregation directed

against Negro students living within their respective borders.

In fact, the evidence shows that, with a few exceptions, none

of the added defendants have had the opportunity to commit

such overt acts because the Negro population residing within the

borders of such defendants ranges from slight to none, as illus-

trated on Figure 5. However, with respect to the added defend-

A69

ants situate within Marion County, the evidence is that when

the Marion County School Reorganization Committee, ap-

pointed pursuant to the Indiana School Reorganization Act of

1959, IC 1971, 20-4-1-2, Burns 28-3501 et seq., made its

initial and unanimous recommendation that all of the school

systems in Marion County be merged into one metropolitan

system, the added Marion County defendants were unanimous

in their oppcsition to the plan (which was, however, favored

by IPS). Subsequently, and for the stated reason that in its

opinion the metropolitan plan could not be adopted in view of

the suburban opposition, the Reorganization Committee com-

pletely reversed itself and proposed a plan which, with minor

exceptions having to do with areas within Center Township,

froze all existing school corporations in Marion County accord-

ing to their then existing 1961 boundaries.

Thus school reorganization in Marion County, rather than

reorganizing anything except the name and method of school

government as to certain added defendants, did nothing at all.

By way of contrast, the evidence is that on 1 state-wide basis

reorganizations pursuant to the Act of 1959 ultimately resulted

in reducing the number of school corporations by approximately

50%, and created school corporations merging what had for-

merly been separate corporations in cities, towns, and their

adjoining unincorporated areas, as well as merging what had

formerly been separate township systems into consolidated sys-

tems. Some of the latter mergers extended across county lines,

as reflected by defendant Wayne’s Exhibit D. As to IPS, this

farcical “reorganization” had the effect of making it technically

a reorganized school corporation, and thus hampered its ability

to be further reorganized without complying with all of the

cumbersome procedures of the 1959 Act and other crippling

legislation.

That the added defendants had a legal right to resist the

recommendation of the School Reorganization Committee under

existing law cannot be denied. At the same time, it is apparent

A70

that confining IPS to its existing territory had the effect, which

continues, of making it first difficult and now impossible to

comply with the law requiring meaningful desegregation.

At this point the Court deems it appropriate to consider

briefly the question as to why Figure 5 reflects such a remark-

able absence of Negro citizens from the territories of the added

defendants with the exception of Washington and Pike (those

Negro citizens residing in Wayne are concentrated in that part

of Wayne which is within IPS, according to school enrollment

figures). Such absence is particularly glaring under the evi-

dence, which reflects virtually no Negroes in Speedway, which

has within its borders Detroit Diesel Allison Division of General

Motors Corporation, the largest single employer of labor in

Marion County; virtually none in Beech Grove, which houses

the shops of the Penn Central Transportation Company; vir-

tually none in Warren outside IPS, although Western Electric,

situate in Warren Township, employs thousands of persons who

busily make all of the telephones for American Telephone and

Telegraph. Equally remarkable is the absence of Negroes from

Lawrence which has the vast Army Finance Center located

some two miles east of its high school. Either it must be con-

cluded that Negroes, unlike other citizens, simply do not like

to live near their places of employment (and all of the em-

ployers mentioned are equal opportunity employers), or there

must be some other reason.

In Richmond the court said, among other things, “We think

that the root causes of the concentration of blacks in the inner

cities of America are simply not known . . .” This Court finds

that statement incredible. Although it is undoubtedly true that

many factors enter into demographic patterns, there can be

little doubt that the principal factor which has caused members

of the Negro race to be confined to living in certain limited

areas (commonly called ghettos) in the urban centers in the

north, including Indianapolis, has been racial discrimination in

A7l1

housing which has prevented them from living any place else.

In the trial just concluded a witness called by the added

defendants conceded that Negroes have been severely limited

in their search for housing in the Indianapolis area to properties

advertised in local newspapers as “for colored,” and experts

called by the Government testified that discrimination has been

a root cause of the black central city phenomenon.

The Court sees no point in laboring the obvious. If racial

discrimination did not exist in the United States, Indiana, and

the Indianapolis metropolitan area, it would not be necessary

to have laws against it. Yet the past ten years have brought

forth a spate of such laws, local and national, preceded by reports

of investigating commissions without end, all pointing up what

every citizen knows—that discrimination is yet with us in a

nation which daily pledges that it is “: . . one nation, under

God, indivisible, with liberty and justice for all.”

Such racial discrimination, which has been tolerated by the

State at the least, and in some instances has been actively en-

couraged by the State, as set out in this Court’s previous opinion,

has had, as its end result, the creation of an artificial unrepre-

sentative community, as pictured by the exhibits in this case.

At the very least it may be said that Negroes have consistently

been deprived of the privilege of living within the territory of

the added defendants by reason of the customs and usages of the

communities embraced within such boundaries, and of the State.

The foregoing should not be taken to mean that this action

is one having to do with discrimination in housing, and this

Court does not consider that a school desegregation action is

one in which it is appropriate to attempt to remedy such dis-

crimination, past or present. However, when it may be demon-

strated that, as here, the discriminatory customs and usages

mentioned have had a demonstrably causal relationship to seg-

regation in the schools, such factor should not be casually swept

under the table as in Richmond.

A72

VI.

Conclusions of Law

The Court concludes, as a matter of law, as follows:

[11] 1. The acts of de jure segregation heretofore found

to have been practiced by IPS can be, and are imputed to the

State of Indiana.

2. The Superintendent of Public Instruction, The Indiana

State Board of Education, and other responsible agents and

agencies of the State of Indiana, and the State itself, have each

practiced de jure segregation, both by commission and omission.

[12] 3. The General Assembly of the State of Indiana

has the power, and it is its duty, to devise a metropolitan plan

of common school education in the Indianapolis metropolitan

area, which may be to direct the reorganization of IPS with

other school corporations, in whole or in part, or to direct the

transfer or exchange of IPS pupils to or with other school cor-

porations, in such a manner as to vindicate the Fourteenth

Amendment rights of plaintiffs and all Negro children presently

within the jurisdiction of IPS to attend desegregated, non-

racially identifiable schools.

4. If the General Assembly fails to act in the manner

described within a reasonable time, this Court has the power

and the duty to devise its own plan, and to order the defendant

and the added defendant school corporations, State Superin-

tendent of Public Instruction, and The Indiana State Board of

Education to implement the same.

[13] In short, paraphrasing the holding of the Sixth Circuit

in Bradley et al. v. Milliken et al., supra, this Court holds that

the record establishes that the State has committed de jure acts

of segregation and that the State controls the instrumentalities

whose action is necessary to remedy the harmful effects of the

State acts. There can be little doubt that a federal court has

both the power and the duty to effect a feasible desegregation

A73

plan. Indeed, such is the essence of Brown II. Brown v. Board

of Education, 349 U. S. 294, 300-301, 75 S. Ct. 753, 99 L. Ed.

1083 (1955). In the instant case the only feasible desegrega-

tion plan involves the crossing of the boundary lines between

IPS and adjacent or nearby school districts for the limited pur-

pose of providing an effective desegregation plan. The power

to disregard such artificial barriers is all the more clear where,

as here, the State has been guilty of discrimination which had

the effect of creating and maintaining racial segregation alon:

school district lines. United States v. Scotland Neck Board of

Education, 407 U. S. 484, 489, 92 S. Ct. 2214, 33 L. Ed. 2c

75 (1972); Wright v. City of Emporia, 407 U. S. 451, 463,

92 S. Ct. 2196, 33 L. Ed. 2d 51 (1972); United States v.

State of Texas, 447 F. 2d 441, 443-444 (5 Cir. 1971); Haney

v. County Board of Education of Sevier County, 429 F. 2d 364,

368 (8 Cir. 1970). See also Davis v. Board of School Com-

missioners, 402 U. S. 33, 36-38, 91 S. Ct. 1289, 28 L. Ed. 2d

577 (1971).

There exists, however, an even more compelling basis for

this Court’s crossing artificial boundary lines to cure the State's

constitutional violations. The instant case calls up haunting

memories of the now long overruled and discredited “separate

but equal doctrine” of Plessy v. Ferguson, 163 U. S. 537, 16

S. Ct. 1138, 41 L. Ed. 256 (1896). If we hold that school

district boundaries are absolute barriers to an IPS school de-

segregation plan, we would be opening a way to nullify Brown

v. Board of Education which overruled Plessy, supra.

VII.

The Area of a Viable Metropolitan Plan

In considering a metropolitan plan, it is apparent that, to

name a few factors, the area should be reasonably compact in

size in relation to is center, should not be separated by massive

natural obstacles, and otherwise should be adaptable to the

A74

reasonably speedy transportation of school children. Also, it

would seem only reasonable to examine whether or not the

area to be considered has significant common interests with the

area hub. The Court now examines the situation with regard

to the area depicted on Figure 1.

In the first place, the Court knows judicially that the entire

area consists of virtually flat land, gently sloping from the north-

east to the southwest with a fall of approximately 150 to 200

feet in approximately 35 miles. The area contains no natural

barriers of any consequence; two fairly sizeable reservoirs, Giest

and Eagle Creek, are located northeast and northwest, respec-

tively, and pose no obstacle to movement of people to or from

the center of the area, while White River is little larger than a

robust creek, and is crossed by numerous bridges. With a very

few exceptions, such as added defendants in their roles as em-

ployers, all industrial plants and other major places of employ-

ment within the area are concentrated either within the bound-

aries of IPS or are within a few city blocks of such boundaries

in Wayne and Warren Townships and the towns of ‘Speedway

and Beech Grove. Indeed, as the evidence discloses, many of

the added defendant school corporations are the largest single

employers of labor within their respective borders!

The employment situation is represented on Figure 6, which

shows graphically that, with the exception of the City of Green-

field (not shown on Figure 1), more than half (in most cases

more than 60% ) of the residents of each unit shown on Figure

1 are employed in Marion County—as a practical matter in

IPS, or within a few city blocks thereof. If the rather substantial

number of workers who did not list their place of employment

are distributed in proportion to those who did, it is apparent

that the true percentage of Marion County workers in the

area is even higher than as indicated.

The employment picture just described results in huge flows

of traffic from the “bedroom” townships primarily to Center,

Warren and Wayne Townships of Marion County each week-

A75

day morning, and back again each evening. In order to ac-

commodate this flow of traffic, the Indianapolis area, with a

huge assist from the Federal government, is blessed with an

extraordinarily efficient highway network. The central area is

completely looped by Interstate Highway I-465, a six-lane,

divided, limited access highway, typical of such highways in the

Interstate System. The loop varies in its distance from Monu-

ment Circle, the hub of downtown Indianapolis, from as little

as 4.50 miles, due south, to as much as 11.50 miles to the north-

west, averaging perhaps six or seven miles in distance from such

central reference point. Additionally there are no less than seven

additional legs of Interstate highways branching off of 1-465,

and in some instances, coming inside the 1-465 loop. Specifically,

I-74 runs northwest and southeast from I-465, I-69 runs north-

east from I-465, I-70 runs southwest and due east from 1-465

(with construction in progress to link up both legs through the

center of this city), and I-65 runs northwest and southeast from

1-465 (1-65 will also link both of its legs through the center of

the city, and the north leg is already open from I-465 to 11th

and Meridian Streets, in downtown Indianapolis).

In addition, there are many other multilane highways lead-

ing into, out of, and through the central area, many of which

are divided, such as S. R. 67 to the southwest and northeast,

U. S. 40 due east and west, S. R. 431 and U. S. 31, each run-

ning due north and south to southeast, S. R. 37 south and

northeast, and S. R. 100, running along the north and east

sides, just inside I-465. Such routes, and other main highways,

are illustrated on Figure 7.

Virtually all points of interest for cultural, sports, and higher

educational activities are located within IPS. For example, as

the Court knows judicially, Butler University, Marian College,

Indiana Central College, the Indianapolis campus of Indiana

and Purdue Universities are so located, as are the Indianapolis

Zoo, the Children’s Museum, the Indiana State Fairgrounds, the

Indiana Capitol and office buildings, all major federal offices,

A76

Clowes Hall (an outstanding theater for the performing arts),

the Indianapolis Sports Arena, the Indianapolis Convention

Center, etc. The Indianapolis Art Museum directly adjoins an

IPS boundary, as does the Indianapolis Motor Speedway (lo-

cated in Speedway).

Just as the working parents of the suburbs drive back and

forth to work each day, so are most suburban children bused to

and from school. As shown on Figure 8, out of 114,696 stu-

dents in suburban schools, 90,266 or 78.7% are bused. The

State reimburses each school corporation a portion of the cost

of busing each child. (Also, it should be noted, the State reim-

burses each added defendant, except Speedway, a substantial

. portion of its costs of operation, according to a complicated

formula.) These bus routes are extremely time consuming, as

anyone knows who has the misfortune to follow a bus down

the highway, since the custom in the suburban areas is to pick

up the children on virtually an individual basis. However, assum-

ing that children walk to a central school or other convenient

point, such as most IPS pupils do, and are then transported

non-stop to their designated school of attendance via the major

traffic arteries (during which period of transportation they

would be going opposite to the flow of commuter traffic, and

hence not impeded by it) the Court is of the opinion that—

given logical and most convenient assignments—virtually all

students could be delivered in thirty minutes. Thirty or even

forty-five minutes is not an unreasonable time, and altogether

comparable to that required for such transportation elsewhere

in Indiana.

As shown in Figure 4, previously referred to, the white pupil

enrollment within IPS is sharply falling, while that of Negro

pupils is rising. On the other hand, the population of each area

in which added defendants operate their schools, and the areas

of non-defendant school districts adjoining Marion County are

rapidly rising in population, virtually all white. These changes

are illustrated in Figures 9, 10, and 11.

A77

It was argued by added defendants that the Negro birth rate

and in-migration had declined to the point where further in-

crease in the black school population would not occur. This

not only begs the question of white migration to the suburbs,

but cannot be demonstrated statistically, as shown by Figure

12, reflecting that estimated black enrollments in grade 1 in

1973 virtually equal black births in Indianapolis in 1967—an

obvious statistical improbability without continued in-migration.

With regard to the defendant Greenfield, Union Township of

Eagle-Union and certain omitted townships of the non-defend-

ants Hamilton Southeastern, Southern Hancock, and North-

western, the Court is of the opinion that the distances involved

are impractical, and therefore makes no recommendation that

they be included in a metropolitan plan. The Court does rec-

ommend that all other added defendants be included in the

metropolitan plan, as well as Eagle-Union to the extent of

Eagle Township.

The Court observes that, on the basis of the applicable

figures, the General Assembly may also wish to add the non-

defendants Center Grove, Clark-Pleasant, Southern Hancock,

Hamilton Southeastern to the extent of Delaware and Fal! Creek

Townships, and Northwestern to the extent of Moral Township

to the plan. Its ability to do so is undoubted. State v. Mutschler,

supra. However, the Court can make no finding or recommenda-

tion with respect to these corporations until such time as they

have had their day in court. Intervening plaintiffs are directed

to interplead such corporations as additional added defendants

forthwith.

VIL.

Constitutionality of Certain Indiana Statutes

Questions posed by the Court in its previous opinion in-

quired as to the constitutionality of certain Indiana statutes,

specifically Chapter 186 of the Acts of 1961, IC 1971, 20-3-14-1,

20-3-14-10, Burns 28-2338, 28-2346, 28-2347 (1968 Cum.

A78

Supp.); Chapter 52 of the Acts of 1969, IC 1971, 20-3-14-9

Burns 28-2346a (1970 Cum. Supp.), and Chapter 173 of the

Acts of 1969, IC 1971, 18-4-1-1 to 18-4-5-4, Burns 48-9101

et seq.

In the opinion of the Court such statutes, along with the

application or the misapplication of the School Reorganization

Act of 1959, certainly placed IPS in a strait jacket. However,

in view of the Court’s other findings and conclusions, it is un-

necessary to consider the question of unconstitutionality.

IX.

Interim Relief

[14] The Court is of the opinion that it would be without

jurisdiction to order the exchange of pupils between IPS and

added defendants at this time. It is Negro children of IPS and

not suburban children who are being deprived of a constitutional

right, and so long as the various school corporations remain

separate the Court believes that it would have no basis to direct

that a suburban child be transported out of its own

This text is long and has been trimmed here. Open the source document for the complete record.