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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1977
- **Citation:** 429 U.S. 1068

## Text

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 = ©

“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:

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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 )

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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

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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

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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).

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0744%3A2. Public record. Not legal advice.