Appendix — Dayton Board of Education v. Brinkman
Supreme Court brief1977
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Supreme Cour, U. S&
FILED ~~
APPENDIX MAR 8 1977
manerte | MICHAEL RODAK, JR, CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1976
No. 76-539
DAYTON BOARD OF EDUCATION,
WILLIAM E. GOODWIN,
JOSEPHINE GROFF and
JAMES D. HART,
Petitioners,
Vv.
MARK BRINKMAN,
PATTY BRINKMAN, and
PHILLIP BRINKMAN,
By Their Mother and Next Friend,
Donna Brinkman, et al.,
Respondents.
On Writ Of Certiorari To The United States Court Of Appeals
For The Sixth Circuit
Petition For Certiorari Filed October 18, 1976
Certiorari Granted January 17, 1977
If.
TABLED OF CONTENTS
RELEVANT DOCKICT ENTRIES
OPINIONS BELOW
A.
District Court’s February 7, 1975 find
ings of fact and opinions of law
District Courts July MB. 1973 supple
mental Opinion on remedy
Court of Appeals August 20, 1974
Opinion
District Court's order of January 7, 1975
relating to submission of plan
District Court's order of March 10, 1975
adopting the plan of the Dayton Board
of Education
Court of Appeals June 24, 1975
opinion
Court of Appeals’ June 24, 1975 remand
judgment
District Court's December 29, 1975
order
District Court's December 29, 1975
judgment
District Court’s March 23, 1976 order .
District Court’s March 25, 1976 judg-
mene
District Court's May 14, 1976 order
Court of Appeals’ July 26, 1976 opinion
“LEVANT RULINGS AND MOTION
Ruling of Trial Court raade at opening
of hearing held on violation issue in
November and December of 1972
Pave
26-31
32-69
70-72
59-96
97-98
99-106
107-109
110-113
114-116
117
118-123
124
lV.
Vi.
B. Motion of Dayton Board relating to
RN awe eer ee gs eee eee es
C. Rulings of Trial Court made at remedial
hearings in) December of 1975) and
March of L976
RELEVANT PORTION OF STATEMENT
OF PLAINTIFFS COUNSEL MADE AT
OPENING OF TIEARING ON VIOLA-
TION HELD IN NOVEMBER AND DE-
CEMBER OF 1972
RELEVANT DESEGREGATION PLANS
PILED WITH DISTRICT COURT .....
A. Plan submitted by Dayton Board in
compliance with order of February 7,
a J2CSe a eteciony cxaien asta es
B. Portion of Plan submitted by Dayton
Board in compliance with order of
i 2. pc cc calS osha wardens Meow
C. Portion of Plan submitted by plaintiffs
in compliance with order of January
Re ce abs 6 oa ba aaa ee ens
D. Portion of Plan transmitted by Dayton
Board in December of 1975... 2.2.0... ..
E. Report of the Master, John A. Finger,
Jr. , REWER Caw kA RE RS OME?
RELEVANT PARTS OF TIE RECORD
OF TWENTY VOLUMES TRANSCRIBED
DURING THE VIOLATION HEARING
HELD IN) DISTRICT COURT IN NO-
VEMBER AND DECEMBER OF 1972
(RAL)
125-130
130
131
131-144
144-154
154-156
176
Testimony of Hubert D. Poore
1. Commentary of Trial Court) and
plaintiffs: counsel o...........
2. Poore testimony ........
Testimony of Ruth Annette Williams. .
Testimony of Tlomer Royer ... 2... ..
Testimony of Phyllis B. Greer ........
Testimony of Mary White
Testimony of Robert IL. Green... 2...
Testimony of Robert: Reese, Sr.
Testimony of John Uarewood
Testimony of Ella Lowrey ......
Testimony of Martin FE. Sloan
Testimony of Herbert Carroll .
Testimony of Doris Brown
Testimony of Grace Toles
Testimony of Lelia 1. Francis ........
Testimony of David George Carter
Testimony of Karl Tacuber ....
Testimony of Wayne M. Carle ....
Testimony of Lloyd Lewis, Sr.
Testimony of Gordon Foster .
Testimony of Nelson Whiteman .. .
Testimony of Walter M. Bagwell
Testimony of Ralph Curk .............
Testimony of William Goff ...........
Testimony of Lorana Madeline Dorsey .
Page
176
176-177
178-180
ISI
IS]
IS1-191
191-195
195-197
197-199
288
288-289
289-290
290-291
VIL.
VIl.
RELEVANT PARTS OF THE RECORD
Ol TIE REMEDIAL TLEARINGS TELD
IN DISTRICT COURT IN FEBRUARY OF
LOTS (RR. IL)
A. Testimony of Robert O. Creer
B. Testimony of Gordon Foster ......
RELEVANT PARTS OF THE RECORD
OF Till REMEDIAL, HEARING HELD
IN DECEMBER OF L975 AND JANUARY
OF 1976 (R. UL) 2...
A. Testimony of William M. Gordon .
B. Testimony of Larry W. Hughes
C. Testimony of John B. Maxwell
D. Testimony of Gordon Foster ...
Page
291
291-295
295-299
300
300-304
304
304-305
305-309
I RELEVANT DOCKET ENTRIES
3-30-73
4-24-73
7-13-73
7-23-73
$-13-73
8-20-74
Complaint filed in District Court.
Plaintiffs file application in District Court for hear-
ing on the request for preliminary injunction for
1972-73 school year.
Answer of Defendants Dayton Board, James D. Hart,
William EK. Goodwin and Josephine Groff filed) in
District Court.
District Court holds hearing on violation issues as
framed by the District Court.
District Court issues its Findings of Fact and Memo-
randum Opinion of Law.
Plans of Dayton Board, minority members of Dayton
Board and Superintendent filed with District Court.
Plaintiffs file in District Court objections to the plan
proposed by the Board majority.
District Court issues its supplemental order on
remedy.
Plaintiffs file notice of appeal with District Court.
Defendants Dayton Board, et al., file notice of ap-
peal with District Court.
Court of Appeals issues opinion affirming District
Court’s holding of a cumulative violation and re-
mands for formulation of an adequate desegregation
plan.
District Court issues order requiring submission of
plans.
Plan of Dayton Board filed with District Court.
Alternative plan of plaintiffs filed with District Court.
2-17-75
to
9-90-75
3-10-75
3-18-75
to
Vi.
District Court holds hearings on plans submitted.
District Court issues order on remedy.
Plaintiffs file notice of appeal with District Court.
Court of Appeals issues opinion and remands action
to District Court.
District Court Order requiring Dayton Board to sub-
mit plan on or before 12-1-75 and appointiag Dr.
John A. Finger as consultant.
Order of District Court relating to establishment of
guidelines for plan.
Dayton Board submits desegregation plan to District
Court for consideration.
District Court held hearing on plans submitted to
Court.
District Court's order and judgment ordering redis-
tribution of pupils and appointing Dr. John A.
linger, Jr. as Master.
District Court's supplemental order correcting fac-
tual issue in 12-29-75 order.
Motion filed with District Court by Dayton Board to
alter or amend judgment.
Master files report with District Court and hearing
set.
District Court held hearings on report of Master.
District Court's final order relating to desegregation
plan.
4-15-76
4-19-76
9-11-76
5-14-76
6-1-76
6-16-76
7-26-76
7-28-76
8-16-76
8-17-76
8-19-76
10-27-76
VII.
Judgment entry of District Court embodying order
of 3-23-76 filed.
Notice of appeal filed by Dayton Board with Dis
trict Court.
Application of Dayton Board for stay.
Order of District Court denying stay.
Application of Dayton Board to District Court for
modification of report of Master.
Order of District Court granting modification except
as relates to eighth graders.
Motion of Dayton Board directed to Court of Ap
peals to stay judgment.
Order of Court of Appeals denying stay.
Order of Court of Appeals aflirming District Court's
judgment of March 25, 1976.
Motion of Dayton Board directed to Court of Ap
peals to stay judgment pending writ of certiorari.
Order of Court of Appeals denying motion for stay.
Application to Associate Justice of Supreme Court
for stay.
Request for stay denied by Associate Justice; writ of
certiorari filed with Supreme Court.
Request for certification and transmittal of record
filed with District Court.
Petition for writ of certiorari granted by Supreme
Court.
Il. OPINIONS BELOW.
A. DISTRICT COURTS FEBRUARY 7, 1973
FINDINGS OF FACT AND OPINION OF
LAW.
(Filed February 7, 1973)
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF OHO
EASTERN DIVISION
MARK BRINKMAN, et al.,
Plaintiffs,
Vv.
JOHN J. GILLIGAN, Governor
of the State of Ohio, et al.,
Defendants.
FINDINGS OF FACT AND
MEMORANDUM OPINION OF LAW
This is a school desegregation suit brought as a class action
by the parents of black children attending schools operated
by the defendant Dayton (Ohio) Board of Education. This
Court has proper equity jurisdiction under the Equal Pro-
tection Clause of the Fourteenth Amendment to the United
States Constitution; see Brown v. Board of Education, 347
U.S. 483, 495 (1954); 349 U.S. 294,, 300-301 (1955), and
under 28 U.S.C.A. $§ 1981 and 1983, 42 U.S.C.A. § 1343.
This matter is before the Court upon the briefs, stipulations
and exhibits presented by the respective parties; and upon
the record adduced during expedited hearing conducted by
]
2
Court from November 13 through December 1, 1972. The
limited question before the Court at said hearing was whether
acts by the defendant Dayton School Board have created
segregated educational facilities in violation of the Equal
Protection Clause.
Having carefully examined the evidence presented, the
Court, pursuant to Rule 52(a), Fed. R. Civ. P., enters the fol-
lowing findings of fact and memorandum opinion of law.
FINDINGS OF FACT
A. Historical Perspective
(1) The evidence presented has established isolated but
repeated instances of failure by the Dayton School Board to
meet the standards of the Ohio law mandating an integrated
school system." Such instances include a physical segregation
into separate buildings of pupils and teachers by race at the
Garfield School in the early 1920's, a denial to blacks of access
to swimming pools in high schools in the 1930's and 1940's and
1 Section 3313.48, Ohio Revised Code, provides in relevant part
that:
“[t]he Board of Education of each city . . . shall provide
for the free education of the youth of school age within the
district under its jurisdiction at such places as will be most
convenient for the attendance of the largest number thereof .. .”
This has been the law of Ohio since February 22, 1887, when it was
enacted by 85 Ohio Laws 34. The statute was upheld and enforced
in 1888 by the Supreme Court of Ohio in Board of Education v. State,
45 O.St. 555, as follows:
“Section 4008 having been repealed by the Act of the General
Assembly passed February 22, 1887 (84 Ohio Law 34), separate
schools for colored children have been abolished and no regula-
tion can be made under 4013 that does not apply to all children,
irrespective of race or color:”
3
the exclusion, between 1938 and 1948, of black high school
teams from the city athletic conlerence.?
Prior to Brown, however, physical isolation of black students
ended, swimming pools were no longer restricted, and black
athletic teams competed on an equal basis with all other
Dayton High Schools.
While arguably consistent with the social mores of the
times, the treatment of black children during this period was
at least inhumane and by present standards, reprehensible.
The practices of the Dayton School Board were also, during
that period, in contravention of Ohio law as cited in n.l,
supra. Both by reason of the substantial time that has elapsed
and because these practices have ceased, however, the fore-
going will not necessarily be deemed to be evidence of a
continuing segregative policy.
(2) Not to be dismissed on a deminimus theory are the
practices of the Dayton School Board with regard to the
hiring and placement of its teachers. In the past thirty-odd
years three separate policies have been followed. Until the
decade of the 1930's, there was little, if any, hiring of black
teachers. Those who were hired were used in instruction of
predominately black classes. During and following World
War II the black population of Dayton substantially in-
creased. Black teachers were hired in greater number, al-
though such teachers did not teach in schools which were
predominately white. While there is no direct evidence that
black teachers were forbidden to teach white children at any
school, in practice few actually did. Some evidence consistent
with the assumption that black educators and black principals
would be more understanding, sympathetic, and inspiring to
black students has been suggested to the Court.
2 For a period in the 1930's and 1940's, the Shawen Acres Orphan
Home sent its black and white wards to different schools. Some white
children of medical personnel of the Veterans Hosnital in Dayton were
bused by the hospital to “white” schools. The Dayton School Board,
while not initiating these practices, condoned and assisted them.
4
In the 1951-52 school year, the policy of assigning black
teachers only to black schools ended and black teachers were
gradually assigned to white or mixed schools. By 1963, under
a policy designated as one of “dynamic gradualism,” at least
one black teacher had been assigned to all eleven high schools
and to 35 of the 66 schools in the entire system.
By 1969 each school in the Dayton system had an integrated
teaching staff consisting of at least one black faculty member.
In the fall of 1971, pursuant to an agreement with the De-
partment of Health, Education & Welfare (H.E.W.), the
Dayton Board of Education commenced assigning faculty in
such a manner that the ratio between black and white teachers
in each school substantially reflected the ratio between black
and white teachers in the system as a whole. Pursuant to
this agreement the teaching staff of the Dayton Public Schools
became and still remains substantially integrated.
By 1969 the Dayton School Board employed more black
teachers than any other of the 20 largest school districts in
Ohio. At that time 28.6% of all teachers were black while
38.3% of all students were black. For the school years 1971-72
and 1972-73, blacks comprised 387 of the non-teaching, non-
administrative personnel employed by the Board of Education.
Employment of blacks in other positions such as skilled crafts-
men, however, remains substantially below the percentage of
black students population or the percentage of black teachers
and black administrators.
(3) In 1933. the Paul Lawrence Dunbar High School was
established. Dunbar High School was intended to be, and did
in fact became, a black high school, with an all black teacher
and pupil population. At the time of its creation, there were
no school attendance zones in Dayton and students were
permitted liberal transfers. Attendance at Dunbar was vol-
untary.
In the 1940's and early 1950's, after reorganization into a
K-8, 9-12 grade structure, high school and elementary school
5
attendance zones were established and encerced in Dayton.
Dunbar continued to exist as a city-wide all-black high school
until it closed in 1962.
B. The Dayton Public School System Today
(a) Racial Imbalance
(4) The great majority of all schools in the Dayton system
today have student populations which are racially imbalanced,
consistent with the black-white population and geographical
distribution thereof as shown by the 1970 census.* Except at
the Patterson Co-op High School, where in the past few years
a concerted effort has been made to enroll more _ black
students, no effort has been made by the school board of
Dayton to balance by race the student population at any
particular school. See Appendix A, post at 15.
(b) Attendance Zones
(5) There has been presented no evidence of boundary
changes that would channel blacks or whites into specific
schools or would restrict blacks from attending any school.
Where construction of new schools has required boundary
changes, they have been rational, reasonable and within the
sound discretion of the Board of Education. No irregular
school zones have been created, white students have not been
bused past black schools to white schools, nor have black
students been bused past white schools to black schools.
3 The 1970 census for the city of Dayton indicates 71 census tracts,
45 with a black population of less than 15%, eight with a black
population between 15% and 85%, and six with a black population
of 85% to 100%.
While the Dayton School District is not geographically identical to
the city limits of the City of Dayton, the variations are non-significant
in the context of the areas’ black-white population.
6
(6) The Dayton School District contains 57 elementary
school attendance areas. No evidence has been presented of
gerrymandered boundary lines and the attendance districts are
regular in shape. Boundary line changes have occurred only
when new schools were constructed tor the purpose of re-
lieving overcrowding in existing ones. See Appendix A, post,
at p. 15.
(7) The middle school program was established on Jan-
uary 4, 1971. Middle schools consist of grades 6,7 and 8 The
middle school program has to date been only partly effectu-
ated in the Dayton system. Elementary schools (kindergarten
through eight) are still in operation as well as primary schools
(kindergarten through five), and middle schools (six through
eight). At the present time there are five middle schools in
Dayton: Cornell Heights, Longfellow, MacFarlane, Whittier,
and Orville Wright. For the racial compositions of these
schools, see Appendix A, post, at p. 15.
Attendance boundaries for the middle schools were estab-
lished in September, 1971, and have neither segregative nor
integrative effect.
(8) There are presently eleven high schools in Dayton,
ten of which have specific attendance areas. The eleventh,
Patterson Co-op High School, enrolls students from the entire
district for its vocational education program. The black per-
centage of attendance at Patterson High School has increased
due to an altering of recruitment techniques, from 2.0% in
1963 to 32.9% in 1972. No evidence has been presented that
under the present selection system the admision of blacks
is denied or discouraged or that the system is segregative in
effect.
Dayton has constructed five high schools since 1954 and
has altered attendance zones where necessary to accommodate
the overcrowding of existing high schools. Other than such
alterations, no attendance zone boundaries have been changed.
No evidence of the establishment of high school boundary
lines for the purpose of creating white high schools and black
high schools has been presented.
ii egen
7
(c) Site selection and construction
(9) Since 1954 the school board of Dayton has constructed
14 new elementary schools and 60 elementary school additions.
The construction follows the pattern of growth in the Dayton
area and follows the specific policy of “building schools where
children are, or where they are expected to be.” New con-
struction of elementary schools was largely on the periphery
of the center city. There are instances of errors in Board
planning in that some areas have not developed as expected
and other developed areas have not become part of the
Dayten School District, as expected. There are examples of
schools operating substantially below capacity. While reason-
able minds might reasonably differ on selection and construc-
tion of some schools, sufficient evidence has not been presented
that school construction was segregative in rature other than
to provide schools in white neighborhoods which remain pre-
dominantly white and schools in black neighborhoods which
remain predominantly black.
(10) Five new high schools and fourteen high school
additions have been constructed in the past eighteen years.
Constructions of some high schools followed the pattern of con-
struction of elementary schools in that sites selected were
away from the center of the city and in neighborhoods which
were predominately white. Other sites could have been
selected near the center of the city in black neighborhoods.
Such schools would arguably, at least, have had a larger pro-
portion of white attending such schools.
Site selection is a matter of judgment and no evidence
has been presented that the Board of Education failed to use
neutral criteria in its choices. In the construction of schools,
the Board, over the years, has been presented with options.
Plaintiffs have failed to sustain their burden of showing that
the defendant Board exercised those options presented in an
improper fashion.
5
(d) Optional zones
(11) The Board of Education of the Dayton School Dis-
trict has from time to time created optional zones. Optional
zones are dual or overlapping attendance areas which allow
children residing within them a choice among two or more
schools. Some optional attendance zones were created where
the more distant school geographically had better access;
some were created where the more distant school did not
require the crossing of busy intersections, commercial areas, or
railroad tracks. Many were created for the convenience of
parents. There has been evidence that at times this last con-
cept embraced desires motivated by racial considerations.
Seven optional elementary zones and four optional high school
zones exist at the present time. All of the others have been
abolished. See Appendix B, post at 16.
The majority of optional zones had no racial significance at
the time of their creation. The Westwood-Jackson, Roosevelt-
Colonel White, and Fairview-Roth zones may have consti-
tuted exceptions to this general rule and we cannot con-
clude that these did not have adverse racial effects. Similarly,
although none of the elementary school optional zones today
have any significant potential effects in terms of increased
racial separation, the same cannot be said of the high school
optional zones. Two of these zones, those between Roosevelt
and Colonel White and between Kiser and Colonel White,
are by far the largest in the system and have had the most
demonstrable racial effects in the past.
(e) Freedom of Enrollment
(12) By two separate actions the Board of Education has
established a “freedom of Enrollment” policy. On May 29,
1969, action was taken whereby the parents of a pupil in good
standing in the Dayton Public School District could request
9
assignment of the pupil to any school building within the
district where space was available to accommodate him.
Three priorities were established.
(1) Students residing within the attendance area of
a school building shall have first priority to assign-
ment to that building.
(2) Students meeting the requirements for a course
available only in the particular building shall have
second priority for attendance in that building;
(3) A student desiring enrollment in any building for
whatever reason shall have third priority in that
building, providing his enrollment will contribute
to improved racial balance in that building.
The action of May, 1969, further provided that transportation
would be the responsibility of the parents.
On January 3, 1972, the Board of Education resolved to
continue the Freedom of Enrollment policy with the exception
that the Superintendent and his staff were directed to develop
and submit before the start of the second semester of the
1971-72 school year a plan providing for the free transporta-
tion of the students participating in such program. Such free
transportation was adopted by the Board prior to the filing of
the complaint herein.
(13) Applications for transfer and dispositions thereof
during the school years 1969-1970, 1970-71, 1971-72, 1972-73,
are set forth in Appendix C, post, at 17. There is no evidence
that the Freedom of Enrollment system has been unfairly op-
erated or that black students have been denied transfers
because of their race. There is evidence that the capacity of
transferee schools has been underestimated and that projec-
tions of future enrollment are substantially overestimated. A
neutrally administered freedom of enrollment system might in
the future reduce somewhat racial imbalance and remove com-
munity perception of “black” and “white” schools. However,
as the Freedom of Enrollment system is presently constituted,
its input towards that goal has been slight. Requests for
10
transfer have at no time exceeded 1.5% of the total student
enrollment.
C. School Board Action — December, 1971
January, 1972
(14) At the general clection in November, 1971, the
electors of the school district of Dayton elected three mem-
bers for a four year term commencing January 1, 1972. Issues
at such election involved the matter of school attendance
zones and transportation of pupils. Two incumbent mem-
bers of the Board ran for reelection, one did not. One in-
cumbent was reclected and two new members of the Board
were added. On December 8, 1971, the L971l Board met to
consider resolutions dea’ing with transportation of students
and zone attendance lines. All members present were duly
elected, qualified and acting members of the Board, although
two of them were so-called ‘lame ducks,” who would not be
members of the Board after December 31, 1971.
The Board adopted several resolutions. These resolutions
recognized the existence of racial segregation in the Dayton
schools, the role played by the Board in the creation of the
racial patterns and the concommitant responsibility of the
Board to eradicate these patterns through affirmative action.
The types of affirmative action recognized included the clim-
ination of the old attendance zones and the transportation of
students for the purpose of achieving the city-wide racial
balance of students. These resolutions, which are set forth in
part in Appendix D, post, at 18-22, were adopted by the Day-
ton School Board by a vote of 5-2.
Immediately thereafter, one member of the Board who had
voted with the majority, requested reconsideration anc’ was
improperly ruled out of order. The Board met subsequently
on December 6, 1971 [sic], and January 3, 1972. At the end
of the latter meeting, the Board ended its term of office
and the 1972 Board took its place. On Jannary 3, at its first
meeting, the 1972 Board rescinded the resolutions passed on
11
December 8. Since the 197L Board had passed out of ex-
istence, the action of the L972 Board on January 3, 1972, was
not in the nature of a reconsideration but instead was a re-
cission of the previous action.
The right of the majority to override protected minority
rights has clear limitations in our constitutional democracy,
See Reitman v. Mulkey, 387 U.S. 369 (1967); Hunter v.
Erickson, 393 U.S. 385 (1969); also see Alkire v. Cashman,
—— F.Supp. —— ($.D. Ohio E.D. 1972). The recission in
early 1972 of the resolutions adopted by the L971 School Board
constituted an independent violation of the Equal Protection
Clause rights enjoyed by the black minority of Dayton. See
Bradley v. Milliken, 433 ¥.2d 897 (C.A.6 1970); Oliver v.
Kalamazoo Board of Education, 346 V.Supp. 766 (W.D. Mich.
§.D. 1971), aff'd. 448 F.2d 635 (C.A.6 1971).
OPINION
An examination of the decisional law of this circuit does
not provide an identifiable category for the Dayton Public
School System. Ohio law, unlike the law of many Southern
states, has never mandated the separation of the races in
public school; to the contrary, since 1887 it has specifically
prohibited this practice. See n.1, supra. The Dayton system
is a square peg for the round holes of Memphis, Knoxville,
and other southern cities.4 It is, however, also a round peg
4 Compare, for example, the intransigence of the Nashville School
Board in Kelley v. Metropolitan County Bd., F.2d Nos. 71-
1778 & 79 (C.A. 6 May 30, 1972). See also Northcross v. Board of
Education of Memphis, 120 V.2d 546 (C.A.6 1970), aff'd. 397 U.S.
232 (1970); 444 F.2d 1179, 1184 (C.A.6 1971); Goss v. Board of
Education of Knoxvilic, 301 F.2d 164 (C.A.6 1962); 305 F.2d 523
(C.A.6 1962); 406 F.2d 1183 (C.A.6 1969); 444 F.2d 632 (C.A6
1971); motion for implementation order denied, 403 U.S. 956 (1971);
Robinson v. Shelby County Board of Education, 442 ¥.2d 259 (C.A.6
1971); Mapp v. Board of Education of City of Chattanooga,
F.2d (C.A.6 October 11, 1972), rehearing en banc granted
F.2d (C.A.6 1972).
for the square hole that is Cincinnati in Deal v. Board of
Education® in Deal, which dealt with an urban school sys-
tem organized under the laws of Ohio, there was no finding
that the actions of the school board had contributed in any
fashion to the segregation of the Cincinnati public schools.
We have not found the Keyes situation of the trauster of whites
to remaining predominately white schools.¢ We have not
found the Bradley altered attendance zones or the transfer
programs that allowed whites to escape trom identifiably black
neighborhood schools.?, We have not found the Daris pattern
of racial discrimination.®
What we have found are racially imbalanced schools, op-
tional attendance zones, and recent Board action, which are
cumulatively in violation of the Mqual Protection Clause. We
hold that the totality of these findings require intervention by
this Court under the mandate of Brown v. Board of Education,
supra.
We do not hold that a school board may not in its wisdom
determine to establish ‘neighborhood schools.” Gilliam v. School
Board of Hopewell, 315 2d 325; Deal, supra; Goss, supra.
But an “optional attendance zone” is a limitation upon this
$369 F.2d 55 (C.A.6 1966); 419 P.2d 1387 (C.A.6 1969), eert. den
402 U.S. 962 (1971).
6 Keyes Vv. School District No. 1, 303 F.Supp. 279, 289 (D.C. Colo.
1969); 313 F.Supp. 61, 90 (D.C. Colo, L970), aff'd. in part, rev'd. in
pert, 445 F.2d 990 (CLA.10 1971), cert. granted - - US —
(1972).
7 Bradley vy. Milliken, 338 VF. Supp. 582) (ED. Mich. 1971), aff'd.
——— Fl - . Nos. 72-1809, 72-1814 (C.A.6 Dee. 8, L972), re-
hearing en bane granted - ood - (CA. 6, Jan. 16, 1973). See
also Clemons vy. Board of Education of Hillsboro, 228 F.2d 853 (C.A.6
1956).
8 Davis v. School District of Pontiac, 443 V.2d 573 (C.A.6 1971),
cert. den. AOA US. 913 (1971).
13
concept and if carried to an ultimate conclusion, effectively
destroys it. Tha school board elects to use the neighborhood
school concept, it must do so fully and completely. Where
there are hazards, natural or artificial, it must so adjust the
boundaries in order to protect the children it intends to edu-
cate. Tt may not employ optional zones either to destroy or
dilute the neighborhood school concept,
In addition, there appear to be aspects of the system which
may in the future become sevregative in effect unless steps
are now taken that will retard these undesirable tendencies.
Without secking to calibrate the degree of sewrecation that in-
heres in individual policies of the Board, we hold that these
must be reflashioned in such manner as to avoid such future
racially isharmonious potential,
Accordingly, the Dayton School Board is hereby instructed
to prepare and present to this Court within sixty (60) days
a plan that will accomplish the following:
(1) Abolish al) optional attendance zones presently re-
maining with the Dayton school system;
(2) Restate the priorities for high school attendance
in the freedom of enrollment plan in order that no
student of a minority race may be denied attend-
ance at-oany high school in’ the Dayton Public
School System and so that transfers for purpose of
improving racial balance take precedence over cur-
riculum transters,
(3) Maintain faculty assigument policies that will re-
flect in each school the approximate ratio of black
to white faculty throughout the district.
(4) Vstablish hiring policies that will enable the clerical
and maintenance personnel hired by the school
board of Dayton to approximate the proportion of
black-to-white ratio of the Dayton School District.
The foregoing enumerated specifics shall be considered as a
minimum. The plan submitted by the defendant Board shall
14
in all other respects conform to the requirements of law.
Swann v. Charlotte-Mecklenburg Board of Education, 402
U.S. 1 (1970); Davis v. Board of School Commissioners of
Mobile County, Ala., 402 U.S. 33 (1970).
Irrespective of the determination of this Court there will
remain in the city of Dayton a substantial black population
entitled as a matter of law to equality in education, housing,
and job opportunity. No peaceful community can consist of
two separate societies viewing cach other with mistrust and
suspicion from ever higher walls of separation. Education has
been historically in our country and remains to this day, one
of the primary means of overcoming barriers of class, status and
occupation,
A court can only enjoin upon a school board its legal duty.
It cannot reach the infinitely more sensitive moral obligation
that defies legal measurement. We commend to the School
Board of the City of Dayton its moral obligation to provide
the highest possible level of education equally for all children
entrusted to its care, without distinction or bias or partiality.
/s/ CARL B. RUBIN
United States District Judge
15
APPENDIX A, FEBRUARY 7, 1973 FINDINGS OF FACT
RACIAL COMPOSITION OF DAYTON PUBLIC
SCHOOLS (1971-1972)
Elementary schools — ‘ Black:
1. Jane Addams .... 81.7 27. Jackson Primary .. 98.8
SS ere 0.6 28. Jellerson Ele. 2... 60.1
3. Belle Haven ..... 5.0 29. Jellerson Primary . 57.1
4. Belmont) ........ 0.0 Se ED venccdewes 0.0
i, 3 0b a Sua we 0.6 ~— eee 0.0
rere 99.0 32. Lincoln ........ 0.0
7. Cleveland ........ 0.0 We bed eedbcee. 46
ee 5.7 34. Horace Mann .... 0.2
9. EKastmont ........ 0.0 35. MecGuilfey . 02... 14.4
ree 97.3 36. MeNary Park .... 99.4
11. emerson ........ 6.8 37. Meadowdale Ele. 8.0
12. Fairport ........ 0.1 38. Miami Chapel .... 99.9
13. Pairview 39. Patlerson-Kennedy — 0.0
Mlementary .... 1.7 MO. Residence Park Ele. 98.8
14. Ft. Mckinley 2... 0.0 At. Residence Park Pri. 99.3
ID. Franklin ........ 0.0 42. Ruskin 2.2.0.0... 7.0
16. Gardendale 2.2... 28.5 A3. Shiloh... 00... 0.1
17. Getiysburg ...... 9.2 44. Shoup Mill ...... 7.1
1S. Gorman ........ 2021 5. Louise Troy ..... 100.0
19. U.S. Grant ...... 0.1 MG. Valerie .......... 75
20. Grace A. Greene .. 96.8 7. Van Cleve ...... 1.1
21. Ilawthorne 2.2... 0.0 AS. Washington ...... 19.4
22. Hickorydale ...... 6.6 49. Weaver ........ BY
23. Highview ........ 97.0 50. Webster ..0...... 0.0
24. finflman ........ 0.0 51. Westwood ....... 99.4
eee 99.0 52. Wogaman _..... 100.0
26. Jackson Elementary 99.!
Of 52 elementary schools in use as of September, 1972,
29 are more than 90% white and 15 are more than 90% black
The balance range from 19.4% to GOA black.
16 . ° 17
Middle schools — % Black: P . APPENDIX B TO FEBRUARY 7, 1973 FINDINGS OF FACT
l. MacFarlane ............ . 99.6 EXISTING OPTIONAL ZONES
0 a errr 99.3 Percentage Black
3. Cornell Heights .......... 80.5 School Population
4. Longicllow 64.) Optional Zone Date ol At date of
Lm . I Wri ht ae ae ab at . a1 Creation creation 1972-73
5. Orville rae ang 4d oa snitinnindentaitinihe seeiaeianaieade xt entrant
Elementary schools:
lL. Belle tlaven/ 1955 0.0 17.7
High Schools — % Black: hort Mckinley 0.0 2.6
1. Dunbar ...... Payee 100.0 2. Residence Park/ 1954 a. 100
‘'_ 100.0 Jane Addams 29.3 b. 78.7
i se a 95.5 3. Westwood Ele./ 1952 0.0 99.7
ne lg QS (
4. Colonel White ............ 54.6 Jackson Ele. 399) 99.9
5. Patterson Co-op 329 : : 4. Lincoln/ 1997 0.0 0.6
“* O41 IloraceMann 0.0 3.1
I Sci vn vcsehudees ses 14.0 o fe 9. Cleveland/ 1956 0.0 0.5
8. Meadowdale 10.6 Belmont Ele. 0.0 9.4
5 a ee 9.8 6. Grant/ 1997 ©. 0.0 0.:3
10. Wilbur Wright ............ 9.2 Boumont ” ~_ rape
IL. Bel ae 7. Eastmont 1957 c. 0.0 0.7
— are rrr _. om "parm 0.0 58
High schools:
Ll. Fairview/ 1965 0.9 ¢. 24.1
Roth 53.5 ¢. 95.4
2. Roosevelt/ 195] 31.5 100.0
Colonel White — extended 1958 0.0 514.6
3. Kiser/ 1962 2.7 ¢. 95
Colonel White ll ec, 54.6
t. Wilbur Wright/ 1956 2.2 b. 9.2
Belmont High 0.0 5.2
‘ , a. Figures not available
b. Figures as of 195]
c. Figures as of 1963-1964
18
APPENDIX C TO FEBRUARY 7, 1973 FINDINGS OF FACT
FREEDOM OF ENROLLMENT APPLICATIONS
1969-70
1970-71 1971-72 1972-73
White applications 133 78 47
Black applications 695 757 741
Totals 828 835 788
White approvals 50 39 23
Black approvals 421 460 460
Totals 47] 499 ——s 483
White disapprovals 83 76 15
Black disapprovals 274 260 187
Totals 357 336 202
White disapprovals
(Lack of classroom space ) 16 8 12
Black disapprovals
(Lack of classroom space ) 164 174 166
Total disapprovals 180 182 178
(Lack of classroom space )
19
APPENDIX D TO FEBRUARY 7, 1973 FINDINGS OF FACT
RESOLUTIONS OF TH DAYTON SCIHIOOL, BOARD
At the December 8, 1971, meeting of the Dayton School
Board, the following three resolutions were passed, each by a
5-2 vote:
RESOLUTION SEEKING JOINT ACTION TO END
SEGREGATION IN) EDUCATION, TIOUSING
AND EMPLOYMENT IN THE MIVTROPOLIPTPAN
DAYTON AREA
WHEREAS, the Committee of 75, in reporting to this Board,
has called renewed attention to the widespread racial and
economic isolation of pupils in the Dayton Public Schools
and in schools of the metropolitan Dayton area.
NOW, THEREFORE, Blk IT RESOLVED by the Board of
Education of the City School District of Dayton:
1. That this Board hereby recognizes and admits that racial
and economic segregation exists in the Dayton schools
because of the actions and inactions of this and predeces-
sor boards in the establishment of attendance districts, the
location and expansion of school buildings, pupil assign-
ment practices, design of curriculum suitable to urban
needs, the assignment of teachers and other staff, and the
conduct of student activity programs; the past actions or
inactions of the Ohio General Assembly, the State Board
of Education, and other agencies of Federal, state, and
local government in contributing to the development and
continuation of segrecated housing, education, and em-
ployment in the Deyloy metropolitan area and other
parts of Ohio; and the actions and inactions of lending
agencies, real estate interests, employers, unions, private
schools, colleges, churches, and other organizations that
have reinforced segregation.
2. That this Board recognizes that past actions or inactions
20
of the Board of Education and residential racial segrega-
tion are interdependent phenomena.
3. That this Board recognizes that the black minority popu-
lation of the Dayton metropolitan area, as illustrated by
the existence of schools of opposite racial composition in
districts with contiguous district lines, essentially is con-
tained within the central city of Dayton, as a result of
discriminatory practices. Such containment works against
a viable integrated schoo! system within the city, and the
Board asserts that a truly effective solution is possible
only through a metropolitan approach.
4. That this Board of Education recognizes that raciel and
economic integration of student bodies in each school is
imperative to providing equal educational opportunity, a
broad curriculum capable of serving the individual needs
of pupils, and a democratic environment in which future
citizens can be prepared to live in America’s multi-ethnic
society.
RESOLUTION ASKING FOR STATE ASSISTANCE
TO DESEGREGATE PUBLIC SCHOOLS
WHEREAS, The Committee of 75 has recommended schoo!
integration on a metropolitan basis, and
WHEREAS, the State of Ohio has responsibility and authority
for the operation of public schools, and the State Board
of Education has the duty to administer the laws relating
generally to the operation of the schools, and
WHEREAS, the Ohio Attorney General has ruled that the
State Board of Education has the authority to restrict
funding in any school district in which said Board finds
as a matter of fact that racial segregation exists,
NOW, THEREFORE, BE IT RESOLVED by the Board of
Education of the City School District of Dayton:
21
1. That this Board hereby petitions the State of Ohio and
the State Board of Education (a) to obtain from Ohio
Civil Rights Commission, U.S. Office of Education and
such other sources as it may deem useful, data on racial
‘isolation of faculty, staffs and pupils within and among
the several school districts as presently constituted in
the metropolitan Dayton area; (b) to develop guidelines
and criteria as may be necessary to assure an education-
ally and socially viable mix of pupils, within the socio-
economic characteristics of the metropolitan area as a
whole; (c) to require said districts to cooperate in pre-
paring and implementing a plan for assignment of faculty,
staffs and pupils in accordance with said guidelines and
criteria, and (d) to assure adequate funding from state
and district sources to continue the operation of the
schools and the implementation of said plans throughout
the period of transition and thereafter.
2. That said plans be developed by September 1, 1972 and
fully implemented not later than September 1, 1973.
3. That the Clerk of the Board forward a true copy of this
resolution to the Governor of the State of Ohio, the
Speaker of the House of Representatives, the President
of the Ohio Senate and the President of the State Board
of Education.
RESOLUTION ORDERING THE RACIAL AND
ECONOMIC INTEGRATION OF PUPILS IN THE
DAYTON PUBLIC SCHIOOLS
WHEREAS, the Board of Education of the Dayton City
School District recognizes a moral and legal duty to
provide quality non-segregated education for all students
in the district, and,
WHEREAS, integrated education is vital to the achievement
6.
22
of quality education for all pupils, black and white, rich
and poor, and,
That this Board view the racial and ethnic mix of the
Dayton City School District and of the metropolitan area
as assets; that this population, if reflected in each school,
could itself contribute to people’s learning from each
other; and that as a whole, the metropolitan area repre-
sents a nearly ideal cross section of the nation that could
permit schools here to become a model of American
democracy in action.
That this Board hereby invites and urges agencies of the
federal, state, and Jocal governments and organizations of
religious, business, labor, education, communications,
civic service, and real estate to assist the Board in de-
segregation of Dayton schools and to pledge publicly
their accelerated efforts to bring about desegregation in
housing, education and employment throughout the Day-
ton metropolitan area.
That the Clerk of The Board be and hereby is directed
to forward a true copy of this resolution to the following:
Governor of the State of Ohio
President of the State Board of Education
Speaker of the Ohio House of Representatives
President of the Ohio Senate
Montgomery County Members of the Ohio General
Assembly and United States Congress.
Montgomery County Commissioners
Dayton City Commissioners
Montgomery County Council of Governments
City Plan Board
Miami Valley Regional Planning Commission
Miami Valley Regional Transit Authority
Metropolitan Ilousing Authority
Apartment Owners Associations
Area Progress Council
23
Assembly of Area Councils
Chairmen of Democratic and Republican Organizations
Community Affairs Committee
Congress of Representative East Dayton Organizations
Dayton Advisory Council on Education
Dayton Area Board of Realtors
Dayton Area Chamber of Commerce
Dayton Area Junior Chamber of Commerce
Dayton Building Trades Council
Dayton Classroom Teachers Association
Dayton-Miami Valley AFL-CIO
Dayton Model Cities Planning Council, Inc.
Dayton Public Service Union
Dayton Urban League
Deans of Area Colleges of Education
Elementary Principals Association
Metropolitan Churches United
Miami Valley Consortium of Colleges and Universities
Montgomery County Community Action Agency
Montgomery County Council of PTAs
National Association for the Advancement of Colored
People
Ohio Association of Public School Employees
Presidents Club
Secondary Principals Association
Southern Christian Leadership Conference
WHEREAS, the Fourteenth amendment to the United States
Constitution and the mandate of the United States
Supreme Court in Brown v. Board of Education decision
and subsequent court decisions place an affirmative duty
to dis-establish the segregated attendance patterns which
result in whole or in part from its actions and inactions
in order to equalize educational opportunity, and,
WHEREAS, segregated educational opportunity and unequal
educational opportunities for minority and poor students
now exist in the Dayton public schools, and,
24
WHEREAS, this inequality exists as a result of the acts and
- omissions of the Board and preceding Boards in their
decisions concerning the site selection of school buildings,
size of school buildings, changes and adoption of school
attendance boundaries, pupil assignment practices,
faculty and staff hiring and assignment practices and,
WHIIEREAS, this Board has requested and received reports of
findings and recommendations from the State Department
of Education and the Committee of 75,
NOW, THEREFORE, BE IT RESOLVED by the Board of
Education of the City School District of Dayton that it
is the policy of this Board that each school shall enroll
pupils in a manner which substantially reflects the racial
and economic characteristics of the district as a whole.
The Board recognizes that implementation of this policy
requires departure from past practices and requires
special planning to assure a smooth transition. The Board
therefore directs:
That the superintendent in consultation with professional
staff and the representatives of employee organizations,
design and implement a mandatory program of in-service
education involving all staff members to prepare staff for
changes in enrollments and to develop an individualized,
multi-ethnic curriculum in each school.
That Dayton Advisory Council on Education be re-
quested to organize a Community Involvement Advisory
Committee and a Lay Citizens Kinancial Review Com-
mittee to advise the superintendant during the course of
planning and implementing integration programs, as
recommended by the Committee of 75.
That the superintendent be and hereby is directed to
develop and implement plans for the racial and economic
integration of pupils using the following guidelines and
criteria:
25
a. Attendance districts as presently constituted are re-
scinded effective September 1, 1972.
b. No building shall have a racial composition and family
income characteristics substantially disproportionate to
the district as a whole.
c. After determination of building capacities and racial
and economic characteristics of attendance areas,
pupils will be assigned to a school in which such
assignment would contribute to a mix as in b. above.
d. Freedom of Enrollment policy with the exception of
transfers for course enrollment shall be climinated
by September 1, 1972.
e. Desegregation is to be completed by September, 1972.
f. Nothing herein shall be construed to limit the estab-
lishment of magnet, demonstration, specialized or
other education complexes, provided that the sites for
instruction meet the criterial in c. above.
g. Transportation shall be held to a minimum, but is
specifically included as one means of implementing
this policy.
That to the maximum feasible extent consistent with
this policy statement, recommendations of the Committee
of 75, are hereby adopted and may be used in planning
and implementing school integration.
That the superintendent report on progress and problems
concerning implementation of this policy at least every
sixty days and that a program for continuous evaluation
throughout the phases of implementation be developed
by July 31, 1972.
That the superintendent prepare applications for supple-
mentary financial assistance from state, federal and other
sources that may become available to improve the quality
of education and achieve the goals of the Committee of
75 report
26
B. DISTRICT COURT'S JULY 13, 1973 SUPPLE-
MENTAL OPINION ON REMEDY.
(Filed July 13, 1973)
IN THE DISTRICT COURT OF TIE UNITED STATES
FOR THE SOUTHERN DISTRICT OF OLLO
EASTERN DIVISION
Civil No. 72-137
MARK BRINKMAN, et al,
Plaintiffs
Vv.
JOHN J. GILLIGAN, Governor
of the State of Ohio, et al,
Defendants
SUPPLEMENTAL ORDER ON REMEDY
Pursuant to order of this Court dated February 7, 1973, the
defendant School Board of the City of Dayton has submitted
a desegregation plan for consideration. A separate plan has
been submitted by the minority members of the Dayton School
Board, as has one by the Dayton Classroom Teachers’ Associa-
tion, whose motion to file as amicus curiae in this matter is
hereby GRANTED. Exhaustive memoranda have likewise
been filed by interested parties. The matter is now before the
court for determination.
The plan submitted by the defendant Board contains eleven
points: Four are directed to the specific requirements imposed
by this Court and seven are in response to the Court’s sugges-
27
tion that additional action be undertaken. Such additional ac-
tion was not specifically mandated by the Court. We do, how-
ever, note our disappointment at the limited nature of Points
V through XI. While defendant School Board can assert that
it was not required by the Court to go as far as it has, a re-
sponse can be made with equal accuracy that the community
relies on the elected members of the School Board to approach
the present problem in a sensitive and understanding fashion.
The Board’s proposals, unfortunately, do not convince us that
they have completely attained this desired goal.
We turn to the four points of the plan required by the
Court’s order. Point I eliminates the optional zones and their
attendant segregatory effects. Point II] provides for non-
racially based faculty assignment practices. Point IV provides
for the proper hiring policies of classified personnel. Points I,
III and IV are in accord with the requirements of the Court's
previous order and as to them, the plan of defendant School
Board of the City of Dayton is hereby APPROVED.
Point Il, however, which deals with F reedom of Enrollment
Priorities, docs not entirely meet the required standards. It
will be conditionally accepted for elementary schools and
middle schools for the school year 1973-74. It will not be
accepted for the high schools.
As to the Dayton high schools, the Board is hereby cirected
to achieve the following:
(1) Any student cligible to attend a Dayton public high
school may attend any high school within the Day-
ton Public School district, provided that students
presently enrolled in high schools shall have first
priority to complete their education therein.
(2) Each incoming ninth grade class and all vacancies
in the tenth, eleventh and twelfth grade classes
shall be filed from those pupils seeking admission.
Where there is insufficient capacity for all pupils
secking admission, a random selection plan shall be
used,
28
(3) Only insufficient capacity shall be deemed reason
to exclude any applying pupil.
(4) Transportation shall be the responsibility of the
Board of Education for all students eligible and
approved for transfer outside of the attendance
area of such students’ residences.
The defendant Board of Education will submit to this Court
within thirty (30) days of the date of this Order a revised
plan to comply with the above. Included in such plan will be
a listing of the pupil capacity by grade of each of the high
schools within the Dayton Public School District. Plaintiffs
will be granted an opportunity to present evidence as to such
capacity. The foregoing admission p!an shall not apply to the
Patterson-Stivers Vocational High School.
There remain for consideration two further questions which
the Court has reserved: The matter of the so-called Metropoli-
tan School District and the status of defendants State of Ohio
through its Governor and the Ohio Department of Education.
The findings by the Court in its Order of February 7, 1973,
and the dispositten of the Board of Education's plan appear
to moot the metropolitan question and to require the dismissal
of these non-Dayton defendants. Plaintiffs are hereby granted
thirty (30) days within which to file memoranda on either or
both of these questions. Defendants are granted thirty (30)
days from the date of such filing to file answer memoranda and
plaintiffs are granted thirty (30) days from defendants’ filing
to file reply memoranda. An evidentiary hearing will be
granted upon either of such questions upon the showing of a
need therefor.
This supplemental Order has been delayed pending study
of the decision of the Supreme Court of the United States in
Keyes v. School District No. 1, Denver, Colorado, —— U.S.
——, 42 U.S.L.W. 5002 (June 21, 1973). The Keyes case dealt,
for the first time, with a large northern city whose school
29
system had never been operated under mandatory segregation
laws, but which had nevertheless acted in a way that helped
create a racially segregative system. It is significant both as a
major landmark in the continuing definition of the Equal Pro-
tection clause within the context of school desegregation that
began with Brown v. Board of Education, 347 U.S. 483 (1954);
and as an indication of the views and attitude of the present
Supreme Court. It will of necessity have a major impact upon
the future direction of the public school systems in the United
States including the one in Dayton, Ohio.
The concurring opinion of Justice Powell must rank among
the clearest and most logical expositions of a most troubling and
difficult subject. This court proposes to follow the rationale
set forth by Justice Powell. We place the burden upon the
Board to comply to the fullest extent possible with the views
stated therein. We place particular significance on the follow-
ing statement of Justice Powell:
“The Term, “integrated school system,’ presupposes, of
course, a total absence of any laws, regulations or policies
supportive of the type of ‘legalized’ segregation con-
demned in Brown.
“A system would be integrated in accord with consti-
tutional standards if the responsible authorities had taken
appropriate steps to: (i) integrate faculties and admin-
istration; (ii) scrupulously assure equality of facilities,
instructions and curricula opportunities throughout the
district; (iii) utiliz. their authority to draw attendance
zones to promote integration; and (iv) locate new schools,
close to old ones, and determine the size and grade cate-
gorics with the same objective in mind. Where school
authorities decide to undertake the transportation of stu-
dents, this also must be with integrative opportunities in
mind.”
This Court likewise adopts as its guiding definition the fol-
lowing statement from Justice Powell:
30
“An integrated school system does not mean, and indeed
could not mean, in view of the residential patterns of
most of our major metropo'itan areas, that every school
must in fact be an integrated unit. A school which hap-
pens to be all or predominately white or all or predomin-
ately black is not a ‘segregated’ school in an unconstitu-
tional sense if the system itself is a genuinely integrated
one.
Keyes v. School District No. 1, Denver, supra, 41 U.S.L.W.
at 5012.
Relating the standards established by Justice Powell to the
Dayton situation, the Court has found that appropriate steps to
integrate faculties and’ administration have been instituted
and will be continued. There has been and there will be an
increasing level of transportation of students for the purpose
of promoting integrative opportunities through the Freedom
of Enrollment priorities.
There is presently no evidence of a failure of equality of
facilities, instructions and curricula opportunities nor has there
been a persuasive proof that the Board, in recent times, drew
attendance lines or built new facilities for the avowed purpose
of minimizing integration. However, there has been evidence
which indicates that the affirmative promotion of integration
through these essential functions of the Board has not held an
important place in the Board’s priorities.
The Powell rationale will operate prospectively. The Board's
planning and implementation units must become capable ot
and sensitive to the racial effects which flow from the drawing
of attendance lines, the construction and improvement of
school facilities and the assignment of faculty, staff and pupils.
Al! of such actions must henceforth be examined for their
“integration impact.”
These are long range goals and a further opportunity should
be given to the Dayton School Board in which to plan and
implement them. Accordingly, while this Court is most re-
31
luctant to continue a “federal receivership” of the Dayton
School System, see Keyes v. School District No. 1, Denver,
supra, 41 U.S.L.W. 5022 (Rehnquist, J. dissenting), it would
seem that a proper disposition of this problem requires a re-
tention of jurisdiction while a reasonable period of time is given
to the School Board for this purpose. Therefore, as to these
long-range criteria, the Court will re-examine the Dayton
School System at the end of academic year 1973-74 and de-
termine, at that time, whether or not additional judicial action
is required.
Nothing that we have said today should be interpreted as a
repudiation of the neighborhood school concept. To the con-
trary, it is this concept which often represents the bedrock
strength of the public school systems and steps may be properly
taken to preserve it. See Keyes v. School District No. 1,
Denver, supra, 41 U.S.L.W. 5018-5020 (Powell, J., concurring
in part and dissenting in part); Deal v. Cincinnati Board of
Education, 396 F.2d 55, 60 (C.A.6 1966). Where school lines
in Dayton have been drawn without improper racial intent,
they will be allowed to stand. Where they have not yet been
drawn, as in the case of the still embryonic system of middle
schools, they should be drawn in such a way as to maximize
integrative goals.
The essential principle which guides this Court is a para-
phrase from Swann v. Charlotte-Mecklenburg Board of Educa-
tion, 402 U.S. 1 at pages 15-16.
It is the function of the federal courts only to eliminate a
deprivation of constitutional rights; it is the duty of local school
boards to operate and maintain integrated school systems.
IT IS SO ORDERED.
/s/ CARL B. RUBIN
United States District Judge
32
C. COURT OF APPEALS’ AUGUST 20, 1974
OPINION.
(Filed August 20, 1974)
Nos, 73-1974-75
UNITED STATES COURT OF APPEALS
FOR THE SIXTIT CIRCUIT
Mark BrRiINKMAN, ET AL.,
Plaintiffs-Appellants,
Vv.
Joun J. GILLIGAN, ET AL., APPEAL from. the
Defendants-Appellees.| United States District
raiment es eatin aa Court for the South-
Mark BrinKMAN, ET AL., ern District of Ohio,
Plaintiffs-Appellees,| Eastern Division.
v.
Dayton Boarp or EpucaTION,
Defendants-Appellants.
Before Pum.ies, Chief Judge, and Peck and Mit.er, Circuit
Judges.
Pumurs, Chief Judge. This is a school desegregation case
directed against the public school system of Dayton, Ohio.
For the reasons set forth below, we affirm in part and remand
the case to the District Court for further proceedings.
Plaintiffs-appellants are black and white Dayton parents who
bring this class action on their own behalf, on behalf of their
minor children, and on behalf of all others similarly situated.
Nn
IO
In addition, the National Association for the Advancement
of Colored People (NAACP) joined as a party plaintiff. The
complaint named the Governor of Ohio, the Attorney General
of Ohio, the Ohio State Board of Education, the Superin-
tendent of Public Instruction of the Ohio Department of Edu-
cation, the Dayton Board of Education, the six individual
members of the Dayton Board and the Superintendent of the
Dayton School District as parties defendants.'’ The Dayton
Board of Education has cross appealed.
I. Chronology of Proceedings
In their complaint filed on April 17, 1972, appellants sought,
inter alia, an injunction enjoining the Dayton defendants from
continuing their allegedly unconstitutional policy of operating
the public schools in Dayton in a manner that perpetuated
racial segregation. The complaint further averred numerous
racially discriminatory practices for which the State defendants
had allocated educational resources.
The complaint was filed in the United States District Court
for the Southern District of Ohio, Eastern Division, which is
located at Columbus, Ohio, rather than in the Western Division
at Dayton (the situs of the subject schools) on the basis that
the State defendants were domiciled in Franklin County
(Columbus). Motions to dismiss for failure to join necesary
parties and for improper venue and alternative motions to
transfer the action to the District Court at Dayton were filed
by the State defendants, the Dayton Board of Education and
three individual Dayton Board members. On June 22, 1972,
the District Court overruled the motions to dismiss for im-
proper venue and denied the motions to transfer, but did not
1 Hereinafter, the Governor, Attorney General, State Board of
Education, and the Superintendent of Public Instruction will some-
times be referred to collectively as the “State defendants.” Here-
inafter, the Dayton Board of Education, its members, and its Super-
intendent sometimes will be referred to collectively as the “Dayton
defendants.”
34
rule on the motion to dismiss for want of necessary parties.
Thereafter, on July 24, 1972, the Dayton defendants and the
State defendants filed their answers denying the material alle-
gations of the plaintiffs’ complaint.
In accordance with the proposed order of procedure, an ex-
pedited hearing before District Judge Carl B. Rubin, was con-
ducted from November 13 through December 1, 1972, limited
to the single issue of whether the school system of Dayton was
a segregated one by reason of acts of the Dayton Board of
Education. On February 7, 1973, the District Court filed its
Findings of Fact and Memorandum Opinion of Law in which
it found that (1) racially imbalanced schools, (2) optional at-
tendance zones, and (3) rescission by the Dayton Board of
Education of three resolutions calling for racial and economic
ba'ance in each school in the Dayton system were “cumula-
tively in violation of the Equal Protection Clause” of the
Constitution. In its February 7, 1973, decision, the District
Court ordered the Dayton Board to submit a plan which would
(1) abolish all optional zones, (2) restate the priorities of the
Board’s Freedom of Enrollment program so that racial trans-
fers would take precedence over curriculum transfers, (3)
maintain faculty assignment practices so that each school
would continue to reflect the approximate ratio of the total
b'ack to white faculty in the Dayton system, and (4) establish
hiring practices that would enable the clerical and main-
tenance personnel employed by the Board to approximate the
proportion of black-to-white population existing within the
Dayton system. The District Court further stated that the
foregoing elements “shall be considered as a minimum” and
that the plan to be submitted by the Board should otherwise
conform in all respects to the requirements of law, citing
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S.
1 (1971) and Davis v. Board of School Commissioners of
Mobile County, 402 U.S. 33 (1971).
In comphance with the February 7, 1973, order of the Dis-
trict Court, the Dayton Board on March 19, 1973, submitted
35
a desegregation plan to the District Court. This plan con-
tained eleven points which are summarized below:
I. Elimination of Optional Zones — eliminated optional
attendance zones for elementary and high school
students.
II. Freedom of Enrollment Priorities — revised the sys-
tem’s Freedom of Enrollment program in accord-
ance with a specified set of priorities.
III. Faculty Assignment Practices — provided that fac-
ulty assignments for each school in the system
should reflect the ratio of white to black faculty in
the entire system.
IV. Hiring Policies for Classified Personnel — provided
that blacks would be hired for classified positions,
e.g. clerical, custodial and food service staff, to
reflect the proportion of the black-to-white pop-
ulation residing within the Dayton Schoal District.
V. Science Environmental Program — proposed the
establishment of a city-wide elementary science
program guided by a trained staff working at four
centers. The program was to be mandatory and
children were to be bused to produce a racial mix
that approximates the ratio between black and
white students in the system as a whole.
VI. Patterson-Stivers Vocational High School — com-
bined two existing vocational schools into a new
unified cooperative school with a district-wide at-
tendance area.
VII. The Musical Stereopticon — formed an clementary
and high school band orchestra and chorus on an
all-city basis.
VIII. Integrated Athletics — required schools that have no
minorities on their teams to schedule schools that
do have minorities represented. High school sched-
ules were to be administered by a central athletic
office to insure that racial isolation did not exist.
36
IX. Minority Language Program — required all class-
room teachers and administrators at the elementary
school level to participate in a series of in-service
workshops on linguistic differences that exist in
American English.
X. Living Arts Center — created departments in art,
creative writing, dance and drama to permit stu-
dets, teachers, and parents to expand their knowl-
edge in these areas.
XI. Control Centers — created rumor control centers,
school guidance centers, and area learning centers
to create a more secure climate for quality educa-
tion in the school system.
In addition to the plan submitted by the Dayton Board, sep-
arate plans were submitted to the District Court by the
minority members of the Dayton Board and the Dayton Class-
room Teachers’ Association. The Board minority submitted its
more comprehensive plan because it believed that the plan of
the Board majority would maintain the status quo and hence
did not comply with the February 7, 1973, order of the District
Court to conform in all respects with Swann, supra, and Davis
supra. Further, the plaintiffs-appellants filed objections to the
plan of the Board majority primarily on the grounds that the
majority plan “froze in” the present unconstitutional system of
segregation and would fail to eliminate racialy identifiable
schools when other alternative remedies, such as busing of
children to other schools, were available.
Op July 13, 1973, after considering the three desegregation
plans before it, the District Court issued its Supplemental
Order on Remedy. The District Court essentialy accepted
the plan of the Board majority except that the Dayton Board
was ordered to submit a freedom of choice plan for the Dayton
high schools. The District Court, however, expressed its
“disappointment at the limited nature of Points V through XI”
37
of the plan of the Board majority, and stated that the desired
goal was not attained completely by the majority plan.
The District Court then stated:
‘There remain for consideration two further questions
which the Court has reserved: The matter of the so-called
Metropolitan School District and the status of defendants
State of Ohio through its Governor and the Ohio De-
partment of Education.
“The findings by the Court in its Order of February 7,
1973, and the disposition of the Board of Education's
plan appear to moot the metropolitan question and to re-
quire the dismissal of these non-Dayton defendants. Plain-
tiffs are hereby granted thirty (30) days within which to
file memoranda on cither or both of these questions. De-
fendants are granted thirty (30) days from the date of
such filing to file answer memoranda and _ plainiffs are
granted thirty (30) days from defendants’ filing to file
reply memoranda. An evidentiary hearing will be granted
upon either of such questions upon the showing of a need
therefor.”
The District Court concluded its July 13, 1973, order as fol-
lows:
“Nothing that we have said today should be interpreted
as a repudiation of the neighborhood school concept. To
the contrary, it is this concept which often represents the
bedrock strength of public school systems and steps may
be properly taken to preserve it. See Keyes v. School
District No. 1, Denver, supra, 41 U.S.L.W. 5013-5020
(Powell, J., concurring in part and dissenting in part);
Deal v. Cincinnati Board of Education, 396 F.2d 55, 60
(C. A. 6 1966). Where school lines in Dayton have been
drawn without improper racial intent, they will be allowed
to stand. Where they have not yet been drawn, as in the
case of the still embryonic system of middle schools, they
should be drawn in such a way as to maximize integrative
goals.
38
“The essential principle which guides this Court is
a paraphrase from Swann v. Charlotte-Mecklenburg Board
of Education, 402 U.S. 1 at pages 15-16.
“It is the function of the federal courts only to elimin-
ate a deprivation of constitutional rights; it is the duty of
local school boards to operate and maintain integrated
schools systems.”
Following the July 13, 1973, order of the District Court, the
plaintiffs-appellants in a letter dated July 26, 1973, reminded
the District Court that by its own order of procedure evidence
with respect to the metropolitan and state aspects of the con-
troversy had been excluded from the earlier hearing. On
August 10, 1973, the Dayton Board submitted a revised plan
incorporating the court’s freedom of choice plan for the Dayton
high schools. The plaintiffs-appellants filed their notice of
appeal from the two orders of the District Court on July 23,
1973. The Dayton Board cross appealed from those orders on
August 13, 1973.
Thereafter, on September 25, 1973, the Dayton Board moved
this court to dismiss the pending appeal of the plaintiffs-
appellants for want of jurisdiction on the ground that no final
order had been entered by the District Court. In an unre-
ported order filed on January 17, 1974, this court denied the
Dayton Board’s motion to dismiss, saying:
“Said motion to dismiss is hereby denied, it appearing
to the court that the District Judge’s supplemental order
on remedy, dated July 13, 1973, approves a proposed
desegregation plan with added instruction as to how it
is to be carried into effect, and hence, appears to be in
the nature of a temporary injunction under 28 U.S.C.
§ 1292(a)(1) (1970).”
We have heard oral arguments and the case is now before
the court for decision.
39
II. Historical Background of School Segregation in
Dayton
Ohio law has long mandated an integrated public school
system. Ohio Revised Code, $3313.48, provides in relevant
part:
“The board of education, of each city, exempted village,
local, and joint vocational school district shall provide for
the free education of the youth of school age within the
district under its jurisdiction, at such places as will be
most convenient for the attendance of the largest number
thereof.”
This has been the law of Ohio since February 22, 1887, when
it was enacted by 84 Ohio Laws 34. That statute was upheld
by the Supreme Court of Ohio in 1888 in Board of Education
v. State, 45 Ohio St. 555, 556, 16 N.Ie. 373, in which the court
stated:
“[Slection 4008 having been repealed by the act of the
general assembly passed February 22, 1887 (84 Ohio L.
34), separate schools for colored children have been
abolished and no regulation can be made under section
4013, that does not apply to all children irrespective of
race or color.”
Further, the District Court made the following historical
determination, that is not challenged on appeal, as a finding of
fact:
“(1) The evidence presented has established isolated
but.repeated instances of failure by the Dayton School
Board to meet the standards of the Ohio law mandating
an integrated school system. Such instances include a
physical segregation into separate buildings of pupils and
teachers by race at the Garfield School in the early 1920's,
a denial to blacks of access to swimming pools in high
schools in the 1930’s and 1940's and the exclusion, be-
tween 1938 and 1948, of black high school teams from the
city athletic conference.” (Footnotes omitted. )
40
The physical segregation into separate buildings of pupils and
teachers by race was ruled illegal in Board of Education of
School District of City of Dayton v. State, ex rel. Reese, 114
Ohio St. 188, 189, 151 N.E. 39 (1926).
In 1956, following Brown v. Board of Education, 347 U.S.
483 (1954), the Ohio Attorney General ruled that the Ohio
State Board of Education had the primary responsibility for
administering the laws relating to the distribution of state and
federal funds to local school districts and that such funds
should not be distributed, absent good and sufficient reasons,
by the State Board to local school districts which segregated
pupils on the basis of race in violation of Broten. Despite
protests over the past twenty years from the Dayton branch of
the NAACP and others, the Dayton Board has maintained a
system wherein the great majority of schools today have stu-
dent populations which are racially imbalanced. The State
Board of Education has permitted this system to continue
with a steady flow of state and federal money.
On March 17, 1969, the Acting Director of the Office for
Civil Rights, United States Department of Health, Education
and Welfare (ITEW), notified the Dayton School authorities
that, as a result of a compliance review conducted by federal
officials, his office had concluded that the Dayton school dis-
trict was not complying with Tithe VI of the Civil Rights
Act of 1964. In particular, the Acting Director stated:
“An analysis of the data obtained during the review estab-
lishes that your district pursues a policy of racially mo-
tivated assignment of teachers and other professional staff.
Thus, all Negro principals are assigned to predominantly
Negro schools, as are 11 of the 14 Negro assistant prin-
cipals; 156 out of 181 Negro high school teachers are
assigned to schools where Negroes constitute 92 percent
of the total enrollment. Over 85 percent of the Negro
elementary teachers instruct in schools having a prepon-
derence of Negro pupils, and only 14 percent of teachers
4]
of the white race are in schools where Negroes are in the
majority. The assignment of counsellors and coaches fol-
lows a similar pattern.
“The existence in your district of a substantial duality in
terms of race or color with respect to distribution of
pupils in the various schools, is a matter of concern to us.
The fact appears to be that of a total of 5,627 Negro high
school pupils, approximately 85 percent are concentrated
in 3 high schools in which the percentage of Negro
attendence ranges from 92.3) percent to 100 percent.
Similarly, 15,479 (approximately $5 percent) Negro cle-
mentary pupils attend 20 out of the 53) elementary
schools in your district. It is noteworthy that in 17 of
these 20) schools, Negroes constitute 90-100 percent of
the total enrollment.
“Our review also indicates that students at Roosevelt
High School are not afforded the same educational oppor-
tunity as other students in your system.”
On June 7, 1971, the Ohio State Department of Education
presented a series of recommendations to the Dayton Board
on how to achieve constitutionally required desegregation. In
its letter conveying the recommendations, a State Department
of Education report stated:
“As the resolution of April 29, 1971 (of the Dayton
Board), admitted, ‘the Dayton Board of Education
recognizes that) unequal educational opportunities for
minority students now exists.” Inequality of such op-
portunities, for minority and majority students, has
characterized the Dayton public school system through-
out its history.
“Since the Board, as an agency of state government, has
created the inequality which offends the Constitution, the
Ohio State Department of Education must advise that the
Dayton Board of Education clearly has an affirmative
42
duty to comply with the Constitution; that is, as the
Supreme Court has stated, ‘to eliminate from the public
schools all vestiges of state-imposed segregation.’ ”
In particular, the State Department report was especially criti-
cal of the process of conversion to feeder and middle schools,
stating that the following seemed to be occurring:
“I. two sets of schools will be totally black;
“2 racial isolation will actually be increased in one set
of schools; and
“3. only in the Dayton View area, which was previously
integrated, could) conversion to middle schools
possibly result in reduction of racial and economic
isolation and insulation.
“If what appears to be happening with middle schools is
in fact happening, then Dayton has only added one more
action to a long list of state-imposed activities which are
offensive to the Constitution and which are degrading
to schoolchildren. Along with many other affirmative
duties which the Dayton Board must fulfill, correction of
this particular offense must occur.”
Although the recommendations of the State Department were
not complied with in full, the State Board of Education con-
tinued to aid in financing the operation of Dayton schools.
Finally, pursuant to the resolution of the Dayton Board
passed at its April 29, 1971, meeting, the President of the
Dayton Board appointed a broadly representative committee
to evaluate and advise the Board on plans to reduce racial
isolation and improve educational opportunities in Dayton.
This committee became known as the Committee of 75, al-
though its membership was later expanded to include cleven
students. At its first meeting, on August 30, 1971, the Com-
mittee was charged as follows by the Board President:
43
“We recognize, and the statistical data substantiates, the
fact that unequal educational opportunities for the poor
and black students now exist in the Dayton School Dis-
trict. The Board of Education has gone on record by
setting quality integrated education as its goal. We have
admitted that the district is guilty of procedures which
have led to the racial isolation of school children.
“It is this committee's responsibility to establish the eval-
uation elements to be applied to a developed plan or plans
and advise the Dayton Board of Education accordingly.
We do hope that you would set up guidelines and/or
methods by which the community will become meaning-
fully involved.
“You are an arm of the Dayton Board of Education with
the task of supplying input to the Board. It remains the
responsibility of the Board of Education to make official
approval of your point. We feel very strongly that the
establishment of this committee is not an attempt to
abdicate its responsibility or delegate its authority, but
rather an attempt to utilize the enrichment of citizen
participation. It is hoped that the school councils, and
organized groups of school-oriented citizens of the school
district, will be an avenue you may use for additional
participation.
“If there be a fear that you are here to architect a master
plan for ‘busing’ — ‘taint true. You are here in an at-
temp to supply your input of the ingredients for excellen-
cy to any plan that the administration and/or consultants
may recommend, Jt is our sincere hope that when a plan
is set for implementation, it should be that one or the one
that embraces the wishes of the citizens of the Dayton
School District and not one imposed by federal, state or
court mandate.”
After several months of study, the Committee of 75 issued
its report in the late fall of 1971. The report recognized the
Ad
Dayton Board's casual responsibility for the condition of
segregation and the imperative need to end one race school-
ing, and suggested the following tentative approaches to ac-
complish desegregation in the Dayton school system:
“I. Segregated education, because it perpetuates and
condones economic and racial isolation, is both il-
legal and interior
“ ry" J “® . 4 ‘
2 The school children of Dayton have suffered far too
long under the crippling handicaps imposed by
racial and economic isolation.
“3 We must resolve now as a total community to end
inferior segregated education once and for all.
“4. Time is running out. Unless we act now the divi-
sions generated by segregation will destroy us.
Unless we act now court orders may impose upon
us what all of us will regret.
5. Initiative in the struggle against segregated educa-
tion belongs to the Dayton Board of Education. We
cannot wait for housing and job patterns to change
while we defy the law of the land.
“6. To lift the plague of segregated education in Dayton
immediate appeal must be addressed to the school
systems surrounding Dayton as well as to the ap-
propriate state and national agencies involved.
7. Desegregation is not enough. To end racial and
economic isolation we must not rest until we have
achieved true integration, until the differing ethnic
and racial groups among us are able to live side by
side in mutual respect.
“8. The personal cost of achieving such true integration
will be high because to achieve such integration we
must persist in dialogue until the differences that
divide us have been resolved. We can no longer
allow the fear of busing (to) stifle such dialogue.
45
“9 The financial cost of true integration will also be
high. At least 1 per cent of the current budget, ex-
clusive of federal and state grants, should be allo-
cated to this sector.
“10. Integrated quality education requires constant vigi-
lance. We must not only develop support systems
to undergird every group involved in the changes
proposed but we must nurture these groups by con-
tinuing attention to curricula, buildings, and in-
service training.”
The report of the Committee of 75 concluded as follows:
“Summary. ‘The presence and magnitude of the problem
before us needs to be recognized by all the citizens of
Dayton. Quality integrated education can help stop the
flight to the suburbs, break the cycle of poor education,
and the lack of job skills which handicap the minorities.
The cost of this type of education will be small in relation
to the total benefits society will reap.”
Thereafter, at its regular meeting on December 8, 1971, the
Dayton Board of Education passed three resolutions in re-
sponse to the report of the Committee of 75. The first resolu-
tion provided, in part, as follows:
“WILEREAS, the Committce of 75, in reporting to this
Board, has called renewed attention to the widespread
racial and economic isolation of pupils in the Dayton
Public Schools and in schools of the metropolitan Day-
ton area.
“NOW, THEREFORE, BE IT RESOLVED by the Board
of Education of the City School District of Dayton:
“I That this Board hereby recognizes and admits that
racial and economic segregation exists in the Dayton
schools because of the actions and inactions of this
and predecessor boards in the establishment of at-
tendance districts, the location and expansion of
school buildings, pupil assignment practices, design
46
of curriculum suitable to urban needs, the assignment
of teachers and other staff, and the conduct of student
activity programs; the past actions or inactions of the
Ohio General Assembly, the State Board of Educa-
tion, and other agencies of Federal, state, and local
government in contributing to the development and
continuation of segregated housing, education, and
employment in the Dayton metropolitan area and
other parts of Ohio; and the actions or inactions of
lending agencies, real estate interests, employers,
unions, private schools, colleges, churches, and other
organizations that have reinforced segregation.
“2. That this Board recognizes that past actions or inac-
tions of the Board of Education and residential racial
segregation are interdependent phenomena.
“3. That this Board recognizes that the black minority
population of the Dayton metropolitan area, as illus-
trated by the existence of schools of opposite racial
composition in districts with contiguous district lines,
essentially is contained within the central city of Day-
ton, as a result of discriminatory practices. Such
containment works against a viable integrated school
system within the city, and the Board asserts that a
truly effective solution is possible only through a
metropolitan approach.
“4. That this Board of Education recognizes that racial
and economic integration of student bodies in each
school is imperative to providing equal educational
opportunity, a broad curriculum capable of serving
the individual needs of pupils, and a democratic en-
vironment in which future citizens can be prepared
to live in America’s multi-ethnic society.”
The second resolution passed by the Dayton Board at its
December 8, 1971, meeting requested the assistance of the
state and federal governments in desegregating Dayton public
schools. The third resolution declared the Board policy to be
that each school in the system should enroll pupils in a manner
47
which substantially reflected the racial and economic character-
istics of the district as a whole and directed the school super-
intendent to implement a plan of desegregation according to
the following guidelines:
a. Attendance districts as presently constituted are
rescinded effective September 1, 1972.
“b. No building shall have a racial composition and
family income characteristics substantially dispropor-
tionate to the district as a whole.
ce. After determination of building capacities and racial
and economic characteristics of attendance areas,
pupils will be assigned to a school in which such as-
signment would contribute to a mix as in b. above.
“d. Freedom of Enrollment policy with the exception of
transfers for course enrollment shall be climinated by
September 1, 1972.
e. Desegregation is to be completed by September, 1972.
“f. Nothing herein shall be construed to limit the estab-
lishment of magnet, demonstration, specialized or
other education complexes, provided that the sites for
instruction meet the criteria in c. above.
“g. Transportation shall be held to a minimum, but is
specifically included as one means of implementing
this policy.”
Each of the three Board resolutions passed by a 5 to 2 vote
after a motion to table the resolution had failed by a 4 to 3
vote,
Subsequently, on January 3, 1972, the newly constituted
Dayton Board, the composition of which had been changed by
the local elections of November 1971, officially rescinded the
three resolutions passed by the prior Board at its December
8, 1971 meeting. The rescission of the three resolutions oc-
curred by votes, respectively, of 4 to 3, 4 to 2, and 4 to 2. The
effect of the rescissions was to reinstate the existing attendance
zones and the system’s Freedom of Enrollment program for
48
the 1972-73 school year. The present action was filed on
April 17, 1972.
III. The Constitutional Violations Found by the
District Court
The District Court found three constitutional violations in
the Dayton school system, namely, (A) racially imbalanced
schools, (B) optional attendance zones, and (C) the Dayton
Board's rescission of the three resolutions. These were held by
the District Court to be “cumulatively in violation of the
Equal Protection Clause.” Further, the District Court stated
that the rescission of the resolutions “constituted an indepen-
dent violation” of the constitutional rights of the black minority
in Dayton.
We hold that the findings of fact on which the District
Court based its conclusion of a cumulative violation are not
clearly erroneous but, to the contrary, are amply supported by
the evidence. Fed. R. Civ. P. 52(a). However, we do not pass
upon the question at the present time as to whether the
rescission of the Board resolutions in and of itself constituted
an independent violation of the Constitution.
(A) Racially Imbalanced Schools
The District Judge made the following finding of fact:
“The great majority of all schools in the Dayton system
today have student populations which are racially im-
balanced, consistent with the black-white population and
geographical distribution thereof as shown by the 1970
census. Except at the Patterson Co-op High School, where
in the past few years a concerted effort has been made to
enroll more black students, no effort has been made by
the school board of Dayton to balance by race the student
population at any particular school.” (Footnote omitted. )
With respect to this finding of fact, the District Judge
appended the following chart which graphically demonstrates
the racial imbalance in Dayton’s sixty-eight public schools.
49
RACIAL COMPOSITION OF DAYTON PUBLIC
SCHOOLS (1971-1972)
Elementary schools — % Black:
1. Jane Addams ..... 81.7 27. Jackson Primary .. 98.8
DB ccccceccenes 0.6 28. Jefferson Ele. ..... 60.1
3. Belle Haven ...... 5.0 29. Jefferson Primary 57.1
4. Belmont ......... 0.8 30. Kemp ..........- 0.0
GB, BR nce eccvcces GB Dh. Lewtee ..cccccces 0.0
GO Cemeeem ...ccccces 99.0 32. Lincoln .......... 0.0
7. Cleveland ........ OO Da. DMS cccccvcccces 46
BO Dewees ....ccccess 5.7 34. Hlorace Mann .... 0.2
9. Kastmont ........ 0.0 35. MecGufley ........ 14.4
ee eee 97.3 36. McNary Park ..... 99.4
ll. Emerson ......... 6.8 37. Meadowdale Ele. 8.0
12. Fairport ......... 0.1 38. Miami Chapel .... 99.9
13. Fairview Ele. ..... 1.7 39. Patterson-Kennedy 0.0
14. Ft. McKinley ..... 0.0 40. Residence Park Ele. 98.8
15. Franklin ......... 0.0 41. Residence Park Pri. 99.3
16. Gardendale ...... 28.5 42. Ruskin .......... 7.0
17. Gettysburg ....... S2 43. Shiloh ........... 0.1
18. Gorman ......... 91.1 44. Shoup Mill....... 7.1
19. U.S. Grant ....... 0.1 45. Louise Troy ...... 100.0
90. Grace A. Greene .. 96.8 46. Valerie .......... 7.5
21. Hawthorne ....... 0.0 47. Van Cleve ....... L.1
22. Hickorydale ...... 66 48. Washington ...... 19.4
93. Ilighview ........ 97.0 49. Weaver .......... 99.9
24. Wuffman ......... 0.0 50. Webster ......... 0.0
OE, TURE acccccesess 99.0 51. Westwood ....... 99.4
26. Jackson Ele. ...... 99.1 52. Wogaman ....... 100.0
Of 52 elementary schools in use as of September, 1972, 29
are more than 90% white and 15 are more than 90% black.
The balance range from 19.4% to 60.1% black.
50
Middle Schools — % Black:
1. MacFarlane ...... 99.6
2. Whittier ......... 99.3
3. Cornell Heights ... 80.5
4. Longfellow ....... 64.1
5. Orville Wright .... 8.1
High Schools — % Black:
ee Peerercrr. 100.0
9. Roosevelt ........ 100.0
_ 4% 95.8
4. Colonel White .... 54.6
5. Patterson Co-op .. 32.9
6. Fairview ......... 24.1
T, GEE ccccccsaces 14.0
8. Meadowdale ..... 10.6
DD Be ivcncecessss 9.8
10. Wilbur Wright .... 9.2
1l. Belmont ........- 5.2
Enrollment data from the Dayton system reveals the sub-
stantial lack of progress that has been made over the past
23 years in integrating the Dayton school system. In 1951-52,
of 47 schools, 38 had student enrollments 90 percent or more
one race (4 black, 34 white). Of the 35,000 pupils in the
district, 19 per cent were black. Yet over half of all black
pupils were enrolled in the four all black schools; and 77.6
per cent of all pupils were assigned to virtual one race schools.
“Virtual one race schools” refers to schools with student
enrollments 90 per cent or more one race. In 1963-64, of
64 schools, 57 had student enrollments 90 per cent or more
one race (13 black, 44 white). Of the 57,400 pupils in the
district, 27.8 per cent were black. Yet 79.2 per cent of all
black pupils were enrolled in the 13 black schools; and 88.8
per cent of all pupils were enrolled in such one race schools.
51
In 1971-72 (the year the complaint was filed), of 69 schools,
49 had student enrollments 90 per cent or more one race
(21 black, 28 white). Of the 54,000 pupils, 42.7 per cent
were black: and 75.9 per cent of all black students were
assigned to the 21 black schools. In 1972-73 (the year the
hearing was held) of 68 schools, 47 were virtually one race
(22 black, 25 white); fully 80 per cent of all classrooms were
virtually one race. (Of the 50,000 pupils in the district, 44.6
per cent were black).
Every school which was 90 per cent or more black in 1951-52
or 1963-64 or 1971-72 and which is still in use today remains
90 per cent or more black. Of the 25 white schools in
1972-73, all opened 90 per cent or more white and, if open,
were 90 per cent or more white in 1971-72, 1963-64 and 1951-
52.
(B) Optional Attendance Zones
The District Judge made the following finding of fact:
“(11) The Board of Education of the Dayton School
District has from time to time created optional zones.
Optional zones are dual or overlapping attendance areas
which allow children residing within them a choice
among two or more schools. Some optional attendance
zones were created where the more distant school geo-
graphically had better access; some were created where
the more distant school did not require the crossing of
busy intersections, commercial areas, or railroad tracks.
Many were created for the convenience of parents. There
has been evidence that at times this last concept embraced
desires motivated by racial considerations. Seven op-
tional elementary zones and four optional high school
zones exist at the present time. All of the others have
been abolished.
“The majority of optional zones had no racial signifi-
cance at the time of their creation. The Westwood-
Jackson, Roosevelt-Colonel White, and Fairview-Roth
52
zones may have constituted exceptions to this general
rule and we cannot conclude that these did not have
adverse racial effects. Similarly, although none of the
elementary school optional zones today have any signifi-
cant potential effects in terms of increased racial separa-
tion, the same cannot be said of the high schoo! optional
zones. Two of these zones, those between Roosevelt
and Colonel White and between Kiser and Colonel White,
are by far the largest in the system and have had the
most demonstrable racial effects in the past.”
The testimony of Dr. Gordon Foster, Director of the Florida
School Desegregation Consulting Center at the University of
Miami, indicates that the Colonel White-Roosevelt optional
attendance area is almost a classic example of segregation
practice:
“Q Dr. Foster, with reference, first of all, to the option
attendance zones, you described certain effects.
Are there short term as well as long term effects of
the ultilization of optional attendance zones?
“Yes. In the ones we talked about at the high
school level, if we can cite the Roosevelt-Colonel White
optional zone, and the following Colonel White-Kiser op-
tional zone, the short term effect it seems to me is to
allow whites to move out of a school assignment that
is becoming black, and I should point out that this is
not to say that in many cases that at a certain point
blacks also take advantage of this option.
“In the Colonel White-Kiser situation, for example, as
Colonel White has become blacker, we are at the point
where there are no whites apparently opting now to go
to Colonel White.”
Further testimony of Dr. Foster demonstrates the deleterious
effect that the optional attendance zones had on school integra-
tion in Dayton:
53
“() In what way do optional attendance areas affect
desegregation and the stability of pupil assignment to
particular schools?
“A. Well, essentially in my opinion they create in-
stability in the public in one way in terms of housing
choices where there are choices and in terms of per-
ception of whether a school is going black or staying
white, this sort of thing, so that generally where you
have an optional zone which has racial implications, you
have an unstable situation that everybody realizes is in
a changing environment. So, what it usually does is
simply accelerate whatever process is going on or work
toward the acceleration of the changing situation.
“Q. The optional attendance zones which you have
identified in your testimony today, what is your opinion
with respect to the effect or if there is any effect on racial
composition of schools in Dayton?
“A. Well, in my opinion, these accelerated and pre-
cipitated further segregation, and in those cases where
I was able to cite hard figures, I think that is very
definitely borne out, and f have no reason to believe that
in all the other cases the same thing was true although
I can’t cite actus’ pupil figures from year to year because
they simply aren't available.”
We conclude that the District Court correctly fouud that
the optional attendance zones used in Dayton were an clement
of the cumulative violation of the constitutional rights of
the appellants.
(C) Rescission of the Board’s Resolutions
The District Judge rendered the following as a finding of
fact:
“At the general election in November, 1971, the electors
of the school district of Dayton elected three members
for a four year term commencing January 1, 1972. Issues
54
at such election involved the matter of school attendance
zones and transportation of pupils. Two incumbent mem-
bers of the Board ran for reelection, one did not. One
incumbent was relected and two new members of the
Board were added. On December 8, 1971, the 1971
Board met to consider resolutions dealing with transporta-
tion of students and zone attendance lines. All members
present were duly elected, qualified and acting members
of the Board, although two of them were so-called ‘lame
ducks,” who would not be members of the Board after
December 31, 1971.
“The Board adopted several resolutions. These resolu-
tions recognized the existence of racial segregation in
the Dayton schools, the role played by the Board in
the creation of the racial patterns and the concommitant
responsibility of the Board to eradicate these patterns
through affirmative action. The types of affirmative action
recognized included the elimination of the old attendance
zones and the transportation of students for the purpose
of achieving the city-wide racial balance of students. . . .
“Immediately thereafter, one member of the Board who
had voted with the majority, requested reconsideration
and was improperly ruled out of order. The Board met
subsequently on December 6, 1971 [sic], and January 3,
1972. At the end of the latter meeting, the Board ended
its term of office and the 1972 Board took its place. On
January 3, at its first meeting, the 1972 Board rescinded
the resolutions passed on December 8. Since the 1971
Board had passed out of existence, the action of the 1972
Board on January 3, 1972, was not in the nature of a
reconsideration but instead was a rescission of the pre-
vious action.”
From this finding of fact, the District Judge concluded:
“The right of the majority to override protected minor-
ity rights has clear limitations in our constitutional dem-
ocracy. See Reitman v. Mulkey, 387 U.S. 369 (1967);
Hunter v. Erickson, 393 U.S. 385 (1969); also see Alkire
55
v. Cashman, —— F.Supp. —— (S.D. Ohio E.D. 1972).
The rescission in early 1972 of the resolutions adopted
by the 1971 School Board constituted an independent
violation of the Equal Protection Clause rights enjoyed
by the black minority of Dayton. See Bradley v. Milli-
ken, 433 F.2d 897 (C.A. 6 1970); Oliver v. Kalamazoo
Board of Education, 346 ¥ Supp. 766 (W.D. Mich. S.D.
1971), affd. 448 F.2d 635 (C.A. 6 1971).”
The passage of the three resolutions and their subsequent
rescission by a Board of a different composition are factual
matters about which there is no dispute. As hereinbefore
stated, the record amply supports the District Judge’s findings
that racially imbalanced schools and optional attendance zones
were clements of the cumulative violation of the appellants’
constitutional rights. Accordingly, when the Dayton Board
at its December 8, 1971, meeting passed resolutions designed,
among other things, to eliminate racial imbalance and optional
attendance zones in Dayton schools, it was acting in a manner
consistent with its constitutional duties. Therefore, the re-
scission by a subsequent Board of these resolutions designed
to carry out the Board's constitutional duties was an element
of the cumulative violation of the appellants’ constitutional
rights as guaranteed by the Equal Protection Clause of the
Constitution.
The question of whether a rescission of previous Board
action is in and of itself a violation of appellants’ constitu-
tional rights is inextricably bound up with the question of
whether the Board was under a constitutional duty to take
the action which it initially took. Cf. Iunter v. Erickson,
393 U.S. 385 (1960); Gomillion v. Lightfoot, 364 U.S. 339
(1960). If the Board was not under such a duty, then the
rescission of the initial action in and of itself cannot be a con-
stitutional violation. If the Board was under such a duty,
then the rescission becomes a part of the cumulative violation,
and it is not necessary to ascertain whether the rescission
ipso facto is an independent violation oi the Constitution.
In view of our conclusion in this case that the rescission
was a part of the cumulative violation of appellants’ constitu-
tional rights, we find it unnecessary to pass on the question
of whether the rescission by itself was a violation of those
rights.
We affirm the District Court's holding that racially imbal-
anced schools, optional attendance zones, and the Board's
rescission of the three resolutions are cumulatively in violation
of appellants’ rights guaranteed by the Equal Protection
Clause.
IV. Other Alleged Constitutional Violations
On appeal, the appellants raise at least four other school
practices which purportedly maintained and expanded the
basically dual school system inherited at the time of Brown.
These practices are in the areas of (A) staff assignment, (B)
school construction, (C) grade structure and reorganization,
and (WD) transfers and transportation. The District Judge
did not include any of these practices within his finding of
cumulative violation of the appellants’ constitutional rights.
(A) Staff Assignment
The record reveals that prior to the 1951-52 school year
the Dayton Board basically assigned all black teachers only
to schools with all black pupils and all white teachers to
schools with predominantly white student bodies pursuant to
an explicit segregation policy of the Board. In 1951-52, the
Board introduced a new policy ostensibly to integrate the
faculties, but which effectively continued in practice the
racial assignment of faculty through the 1970-71 school year.
In a letter dated March 17, 1969, the Acting Director of
the Office of Civil Rights of HEW notified the Dayton Board
that “an analysis of the data obtained during the (compliance)
review establishes that your district pursues a policy of racially
motivated assignment of teachers and other professional staff.”
tend
Oi
Other relevant portions of this letter are contained in See-
tion IL of this opinion. Following receipt of the letter, the
Dayton Board negotiated with HEW and agreed to deseyre-
gate its staff so “that each school staff throughout the district
will have a racial composition that reflects the total staff of
the district as a whole” in accordance with the principles of
United States v. Montgomery County Board of Education,
395 U.S. 225 (1969). Thereafter, the Dayton Board realigned
its school staffs for the 1970-71 school year.
The appellants admit that progress has been made with
respect to climinating segregative staff assignment, but allege
that the agreement with HW has not been fulfilled in that
vestiges of the former practices persist which continue to
identify schools as “black schools” or “white schools.” As an
example, at the high school level, the following table was
presented by the appellants to demonstrate how Board assign-
ment of its professional staff still served to identify schools
as “black schools” or “white schools” in 1971-72 (w means
white, b means black):
Pupil Faculty
% Black © Black Principal Coaches
Belmont 5 es 23.1 Ww 10w, 2b
Wilbur Wright 9.2 98.5 Ww lOw, 3b
Kiser 98 20.1 Ww 10w, 2b
Meadowdale 10.6 23.5 w I3w, 3b
Stivers 14.0 32.4 Ww 10w, 4b
Fairview 24.1 29.8 Ww 10w, 5b
Col. White 4.6 32.0 w Iw, 6b
Roth 95.8 43.5 b Sw, 7b
Roosevelt 100.0 17.4 b 8w, 8b
Dunbar 100.0 50.3 b Tw, 9b
The witness Dr. Robert L. Green, Dean of the Urban Col-
lege and Professor of Educational Psychology at Michigan
State University, testified as follows:
58
“Q. Dr. Green, | believe [I informed you that the
faculties were desegregated as a result of [IEW action
in 1970.
“Do you have an opinion as to whether or not the
effects of this history of faculty assignment persist in
terms of identification of schools as black or white in
the school district after the changing of the faculties as
was done in this case?
“MR. GREER: Objection, your Honor.
“THE COURT: Overruled.
“A. Yes. The answer is yes, Mr. Lucas. When there
has been historical practice of placing black teachers in
schools specified as being essentially black schools and
white teachers in schools that are identified or specified
as being essentially white schools, even though faculty
desegregation occurs, be it on a voluntary basis or under
court order, the effect remains that school is yet per-
ceived as being a black school or white school, especially
if at this point in time the pupil composition of those
schools are essentially uni-racial or predominantly black
or predominantly white.
“Q. Dr. Green, you did examine the ‘68-69 statistics
for the Dayton School System, is that correct?
“A. Yes.
“Q. And did you in cxamining the data note any
correlation between the pupil composition of black or
white and the faculty composition black or white?
“A. Yes, I did, Mr. Lucas.
“Q. Do you have an opinion whether this is isolated
instances of correlation or is there any systematic pattern
to il?
“A. There scems to be a systematic pattern as it re-
lates to black teachers and the racial composition of
schools vis-a-vis black youngsters and white youngsters
being essentially placed in schools that are predominantly
white.”
59
The witness Dr. Foster testified as follows:
“QO. . .. In light of that history, could you give us
your opinion as to the effect, first of all, of that policy
before the change, in terms of identification of schools
as black or white and the effects of that change on the
present situation in the Dayton School System?
“MR. GREER: Objection.
“THE COURT: Overruled.
“A. Well, my opinion is that this policy and practice
before the change we assume took p'ace, especially since
it is in a northern district, wou'd indicate that the Board
is missing or has missed a golden opportunity to prove
that it does want to run a unitary system and remove
segregation practices insofar as it is able, because the
Board clearly, as | understand it, under most State laws,
or all State laws, can assign teachers willy-nilly in the
System wherever they want to. This is not a free choice
matter.
“Q. Is it also an annual option that the school Board
has?
“A. Yes, in terms of assignment. In terms of my
opinion on what this does, as recently changed, assuming
this, | would have to say that this does not remove by
any means the vestages of a segregated system since it is
only one component of several important aspects of a
system segregated or desegregated. J think it is a very
important component, and [ think it is a step certainly in
the direction of desegregation, and a very positive step.
‘But coupled with the other most important step of
pupil assignment, so long as the schools themselves re-
main segregated, as they certainly do at this time in my
opinion in Dayton, then the fact that teachers or staff
being desegregated, if we assume that doesn’t carry near
the weight it would if the total desegregation process
had taken place.”
60
Dr. Wayne M. Carle, Superintendent of Schools in Dayton
at the time of the trial, testified as foliows:
“BY MR. LUCAS:
“QO. Would you answer my preliminary question, then.
Did you agree with the LIEW conclusion that there was
purposeful faculty and. stall segregation in the Dayton
School System?
“MR. GREER: We would object to this, your Honor,
as it simply asks a self-serving conclusion of the witness.
“THE COURT: — Lam going to overrule your objection.
You may answer.
“A. There is no question but what that was so.
BY MR. LUCAS:
“QO. Now, Doctor, [| think you stated that there had
been substantial faculty desegregation, Has there also
been staff desegregation and, if you will, limit it to
What you have defined as line personnel, principals, assist-
ant principals?
“A. There has been considerable desegregation of ad-
ministrative staff, but there still is a high correlation
between the race of pupils and the race of the administra-
tor.
o ° °
“Now, today the percentage of black administrators is
around 32 or 33 percent, as | recall. That indicates less
discrimination in promotion, since there is more relation-
ship between the percentage of teachers, which now is
perhaps 34 or 35 percent, and administrators. But I
am saving that with respect to their assignment, and par-
ticularly at the high school level, there is an almost
perfect correlation between the race of the principal and
the predominating race in the school. All four black
high schools, for example, have black principals. All
the other high schools have white principals. So that
that considerable vestige of segregation still has not been
eliminated. There would be other instances, if you just
scan the statistics, in which previously all black or nearly
black staff similarly have weighted errors in them, that
61
is, the error is still in the direction of the previous dis-
crimination. Hf the staff previously were 70 percent and
now should be, let's say, 30 percent black, it may still
be 40 percent because of difficult factors in resolving. it.
“In all cases, or probably in all cases, that error or that
difference is still weighted to the previously fully segre-
gated pattern, so that it is very difficult L think, to under-
stand the depth of segregation. [It is so pervasive that
its vestiges are difficult. These are two areas in which
that is very obvious.”
(B) School Construction
The District Judge did not include the Dayton Board's
school construction practices within the cumulative violation
because he found the underlying motives behind such con-
struction to be racially neutral, rendering the tollowing as a
finding of fact:
“(ce) Site selection and construction
“(9) Since 1954 the school board of Dayton has con-
structed Lt new clementary schools and 69 clementary
school additions. ‘The construction follows the pattern
of growth in the Dayton area and follows the specific
policy of ‘building schools where children are, or where
they are expected to be.” New construction of elementary
schools are largely on the periphery of the center city.
There are instances of errors in Board planning in that
some areas have not developed as expected and other
developed areas have not become part of the Dayton
School District, as expected, There are examples of
schools operating substantially below capacity. While
reasonable minds might) reasonably diller on selection
and construction of some schools, sufficient evidence has
not been presented that school construction was segrega-
tive in nature other than to provide schools in white
neighborhoods which remain predominately white and
schools in black neighborhoods which remain predom-
inately black.
62
“(10) Five new high schools and fourteen high
school additions have been constructed in the past eigh-
teen years. Construction of some high schools followed
the pattern of construction of elementary schools in that
sites selected were away from the center of the city
and in neighborhoods which were predominately white.
Other sites could have been selected near the center
of the city in black neighborhoods. Such schools would
arguably, at least, have had a larger proportion of whites
attending such schools.
“Site selection is a matter of judgment and no evidence
has been presented that the Board of Education failed
to use neutral criteria in its choices. In the construction
of schools, the Board, over the years, has been presented
with options. Plaintiffs have failed to sustain their bur-
den of showing that the defendant Board exercised those
options presented in an improper fashion.”
On appeal, the appellants contend that there is substantial
evidence in the record to support their claim that the Dayton
Board's practices in school construction had a segregative
effect and contributed substantially to the alleged present
duality in pupil assignment. The record reveals that in the
period of greatest expansion of the Dayton school system,
from the late 1940's to the mid 1960's, the great majority of
new schools and additions were located by the Board in either
virtually all black or all white areas. Of 24 new schools
constructed between 1950 and the present, 22 opened 90
per cent or more black or white. The following table con-
tains some examples:
% Black % Black
Date of at Pupils
High Schools Opening Opening 1972-1973
Patterson 1954 0.0 32.9
Belmont 1956 0.0 5.2
Meadowdale 1960 0.0 10.6
Dunbar 1962 92.3 100.0
63
Mlementary Schools
Orville Wright 1952 0.0 8.1
Miami Chapel 1953 100.0 99.8
Horace Mann 1954 0.0 3.1
Bell THlaven 1954 0.0 17.1
Hickorydale 1957 0.0 32.5
Meadowdale Elem. 1957 0.0 12.6
Louise Troy (Primary) 1957 100.0 99.1
Shoup Mill 1958 0.0 3.8
Carlson 1958 95.0 99.0
Jackson Primary 1960 99.9 99.7
McNary Park (Primary) 1964 100.0 160.0
Res. Park (Primary ) 1966 96.5 100.0
Valerie 1966 0.0 24.0
On the issue of school construction practices, Dr. Foster
testified as follows:
“QO. Dr. Foster, would you at this point tell me if you
made an inquiry into the question which | think related
to the construction issues of site selection?
“A. Yes.
“Q. And what was that inquiry?
“A. In terms of the use of site selections to maintain
segregation, in the new construction sites from 1950
which we have already discussed to the present, many
of these have helped to promote and to impact and lock
in segregated or isolated situations cither in the inner
city or in the suburbs, and | think this is true in terms
of both school segregation and housing segregation, that
is. in terms of its effects. First of all, in the area of the
white suburban expansions which are farthest from the
center of the city which is all black, and these were,
of course, more inaccessible at the time of construction
than they are now. We have Valerie which was built in
1966 which is almost at the extreme vorth of the district.
We have Meadowdale High School built in 1960 and
Meadowdale Elementary built in 1957 to the north of
G4
the district. We have Shoup Mill built in 1958 and to
the nearly extreme north. The south and east of the
furthest white suburban expansion, we have Eastmout,
on the extreme east built in 1965. We have Wilbur
Wright to the northeast built in 1952, Horace Mann to
the southeast built in 1954. ond Belmont High School in
the southeast built in 1956.
“Now, contrary-wise, in the inner city during this time
there were a couple of examples of schools which were
built into locked-in situations in terms of segregation, and
in fact these schools were surrounded by other schools
which were all black. That would be McNary in 1964
and Jackson Primary in L960.
“QO. Dr. Foster, in your experience, use of the primary
unit in close proximity to elementary schools, has this
been a matter reflective of segregation practices in your
experience?
“A. Yes. It is in a sense very much nothing more
than an addition. They are on the same campus and for
all practical purposes they are really one school.
“QO. What effect does this have on the existing racial
concentrations ?
“A. Well, it tends to secure it and to further insure
that those schools are going to remain segregated and
that the system as a whole is going to remain segregated.”
Based on this evidence, the appellants dispute the District
Court's conclusion that the Dayton Board's school construction
practices were not a part of the cumulative violation. The
appellants contend that on facts similar to those presented in
this case the Supreme Court in Swann, supra, 402 U.S. at
20-21, found major constitutional violations on which a Dis-
trict Court could fashion a remedy.
(C) Grade Structure and Reorganization
The appellants’ primary objection in this area is to the
establishment of a middle school system in the 1971-72 school
year which allegedly had a segregative eflect. Dr. Foster
testified as follows:
“My conclusion is that the establishment of the middle
schools in L971 resulted in the establishment of four out
of five schools that were clearly racially identifiable, there-
fore, increasing or maintaining segregation as opposed to
availing the opportunity of decreasing it.”
Further, after the establishment of the new middle school
structure, the Ohio State Department of Education gave the
following advice to Dayton school authorities:
“If what appears to be happening with middle schools
is in fact happening, then Dayton has only added one
more action to a long list of state-imposed activities which
are offensive to the Constitution and which are degrading
to school children. Along with many other affirmative
duties which the Dayton Board must fulfill, correction
of this particular offense must occur.”
The District Court found that the boundaries established
for the middle schools in September 1971 had “neither segre-
gative nor integrative effect.” The appellants submit that
this finding means, under applicable legal standards, that
the Board acted unconstitutionally to maintain segregation in
the face of an opportunity to accomplish substantial desegre-
gation. The appellants assert that the action of the Dayton
Board was intentional because the Board was aware of de-
segregation alternatives but instead choose a plan whose
predictable impact was not to further integrate the Dayton
school system.
(ID) Transfers and Transportation
Finally, the appellants contend that transfer and transporta-
tion practices of the Dayton Board, which might have held
promise to accomplish further desegregation, have operated
to maintain segregation and further earmark schools as “black”
66
or “white.” In support of this contention, the appellants cite
evidence that curriculum, hardship and disciplinary transfers
have operated frequently to assign white children from “black
schools” to “whiter schools” and black children from “white
schools” to “blacker schools.” Further, there is evidence in
the record revealing that the Board assigned tuition pupils
from outside the district on a dual basis; white pupils were
assigned to white schools and black pupils were assigned to
black schools.
The testimony of John Harewood, Assistant Superintendent
of Dayton schools in charge of administration, reveals two
instances in which children were bused “intact” with the effect
of segregating children on a racial basis in separate class-
rooms within schools. In 1963, white children from Ruskin
School were transported intact to separate classes in the
mixed Central School. In the spring of 1968, some of the
black children from Edison School, which had been partially
destroyed by fire, were similarly segregated within a number
of white schools throughout the city.
The District Court’s only conclusion in the area of transfer
and transportation practices was with regard to the school
system’s Freedom of Enrollment program. The District Court
required that program be revised for Dayton high schools so
that transfers for purpose of improving racial balance take
precedence over curriculum transfers.
On the basis of the evidence adduced, the appellants’ legal
argument in this area is that the transfer and transportation
practices of the Dayton Board had the “clear effect of ear-
marking schools according to their racial composition” which
is proscribed by Keyes v. School District No. 1, Denver, Colo-
rado, 413 U.S. 189, 202 (1973).
(FE) Conclusion as to Other Alleged Constitutional
Violations
As hereinabove indicated in Section IV of this opinion, the
appellants have raised serious questions with respect to wheth-
67
er the District Judge's failure to include these four school
practices within the cumulative violation was supported by
substantial evidence. tn view of our holding in Section V
hereof, we conclude that it is unnecessary at this stave to pass
on whether the District Judge's findings of fact with respect
to these four school practices is supported by substantial
evidence.
V. Remedy
As more fully described in Section [ hereof, the District
Court ordered the Dayton Board of Education to submit a
desegregation plan that conformed to all requirements of law.
Subsequently, the fouramember majority of the Dayton Board
submitted an cleven point plan characterized by the appellants
asa “lree choice plan.” Other plans were submitted to the
District Court by the three-member minority of the Dayton
Board and Dayton Classroom Teachers’ Association. Without
holding a hearing on the remedy issue, the District Court
approved the plan of the Dayton Board majority with one
Saal sae
modification.
The appellants’ primary contention on appeal is that the
desegregation plan approved by the District Court is inade-
quate to remedy the cumulative violation found by the Dis-
trict Court. We agree.
On receipt of the Board majority plan, the District Court
was obliged “to assess the effectiveness of... [the| proposed
plan in achieving desegregation .... in light of the circum-
stances present and the options available in each instance.”
Green v. County School Board, 391 U.S. 490, 459° (1968).
The appellants assert that the circumstances present here,
namely a cumulative violation, required a remedy of “all-out
desegregation.” Keyes, supra, 4V3 U.S. at 214. The appellants
further assert that the plan of the Board minority would
accomplish such “all-out desegregation” and that therefore we
should remand this case to the District Court with instructions
that it order the plan of the Board minority implemented.
6S
Today we simply hold that the remedy ordered by the
District Court is inadequate, considering the scope of the
cumulative violations. The case is remanded to the District
Court for proc. dings to formulate a desegregation plan for
the Dayton scl« . system consistent with the remedial guide-
lines outlined in Keyes, supra, and Swann, supra. This hold-
ing does not necessarily require the District Court to imple-
ment the plan of the Board minority, but “all vestiges of state-
imposed segregation,” Swann, supra, 402 U.S. at 15, must be
eliminated.
In formulating a desgregation plan, the District Court of
course will adhere also to the guidelines enunciated by the
Supreme Court in Milliken v. Bradley, -—— U.S. —— (No. 73-
434, July 26, 1974), reversing Bradley v. Milliken, 484 F. 2d
215 (6th Cir. in bane 1973).
Once the plaintiffs-appellants have shown that state-imposed
segregation existed at the time of Brown (or any point there-
after), school authorities “automatically assume an affirmative
duty . . . to eliminate from the public schools within their
school system ‘all vestiges of state-imposed school segrega-
tion.” Keyes, supra, 413 U.S. at 200. When such a showing
has been made, “racially neutral” plans which fail to counter-
act the continuing effects of past school segregation are inade-
quate, Id. at 210-13.
VI. Other Directions on Remand
In its Supplemental Order on Remedy, dated July 13, 1973,
the District Court suggested that its disposition of the case
appeared “to require the dismissal of those non-Dayton defen-
dants.”. We disagree with this suggestion as to the State
defendants.
The District Court is directed to keep the State defendants
as parties to this action. Although, according to the District
Court order of procedure, evidence as to a state violation was
supposed to be excluded from the initial trial, the follow-
69
ing evidence was adduced: The Dayton school district is
chartered by the Ohio State Department of Education, and
without such a charter, the district would be without power
to operate and could not receive state aid. Ohio Revised
Code, §§ 3301.16 and 3317.01. Since an Ohio Attorney Gen-
eral’s opinion dated July 9, 1956, the State Department of
Education has known that it has an affirmative duty under
both Ohio and federal law to take all actions necessary, in-
cluding, but not limited to, the withholding of state and
federal funds, to prevent and eliminate racial segregation in
the public schools. Finally, during the years in question in
this case, the Dayton school district was denied any allocation
of state funds for pupil transportation, although such funds
were made available to most suburban and rural school dis-
tricts in the state.
VII. Other Issues
Several other issues were presented which do not now
require discussion, All contentions of the parties contrary to
the conclusions reached in this opinion have been carefully
considered and are found to be without merit.
VIII. Conclusion
The District Court's holding of a cumulative violation of the
appellants’ constitutional rights, as contained in its Findings
of Fact and Memorandum Opinion of Law dated February
7, 1973, is affirmed.
Since we conclude that the remedy prescribed by the Dis-
trict Court is inadequate, the case is remanded to the District
Court with directions to revise and supplement its order of
July 13, 1973, entitled “Supplemental Order on Remedy,” so
as to formulate, in accordance with the guidelines hereinabove
set forth, a desegregation plan for the Dayton school system
and for other proceedings to that end not inconsistent with
this opinion.
70
D. DISTRICT COURTS JANUARY 7, 1975 OR-
DER RELATING TO SUBMISSION OF PLAN.
(Filed January 7, 1975)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OTILO
WESTERN DIVISION
Civil No. 72-137
MARK BRINKMAN, et al.,
Plaintiffs,
Vv.
JOUN J]. GILLIGAN, Governor
of the State of Ohio, et al.,
Defendants.
ORDER
This matter comes before the Court pursuant to remand by
the United States Court of Appeals for the Sixth Circuit and
following informal conferences called by the Court limited to
one attorney for the plaintiffs and one attorney for the de-
fendants. The Court would be remiss if it did not recognize
the contributions of plaintiffs’ attorney, Louis Lucas, and de-
fendants’ attorney, David Greer, whose research, counsel and
suggestions materially assisted the Court in the preliminary
phase of this matter.
Based upon such conferences, the controlling decisions in
this Circuit, and the state of the law on the subject as an-
nounced by the Supreme Court of the United States, the
Court concludes that it is now apprepriate to deal with
—
-_-
a ipee -—>~— — 2 ~~
71
specific plans. The parties, including the plaintiffs, the de-
fendant Board of Education of Dayton, and the Board of
Education for the State of Ohio will confer and prepare plans
either jointly or separately for submission to this Court which
will accomplish the following ends and satisfy the requirements
set forth in the opinion of the United States Court of Appeals
for the Sixth Circuit, 503 I’.2d 684 (1974).
In the twenty years that have elapsed since Brown v. Board
of Education, 347 U.S. 483 (1954), large numbers of American
cities have faced the problem that now confronts Dayton and
have adopted varying methods to solve it. Abie, conscientious,
and knowledgeable experts in this field have developed. De-
partments of government, both state and national, are anxious
to assist. The experience of other cities and the available ex-
perts should be consulted by the parties in the ultimate solution
of this problem. Such devices as “pairing” of schools, “cluster-
ing’ of schools, alterations of attendance boundaries, “magnet”
schools, feeder patterns, increasing school capacity, new con-
struction and voluntary transfers, should all be considered.
No known desegregation device should be overlooked. The
proposals of the Board of Education, both those presented in
response to this Court’s Order of February, 1973, and those
suggested in the informal discussions above referred to should
not be abandoned. The thought and planning that preceded
these proposals should not be ignored. These proposals have
not been considered unresponsive; they have been considered
insufficient. They do represent a base for further expansion.
The Court draws particular attention to the proposal of the
Dayton School Board to construct magnet schools in the down-
town area. It may well be that further development of this
concept might achieve the desired goals as to high schools
on a voluntary basis.
The Dayton freedom of enrollment program should not be
abandoned. It, too, may contribute in great measure to a
solution of the problem.
Deliberately absent from the foregoing suggestions is that
of transporting students to accomplish racial balance. It does
72
not require much wisdom or foresight to recognize that this
coercive solution is the least satisfactory. ‘The Court will con-
sider transportation of students only as a last resort and only
after careful inquiry has established that no other solution
exists.
One word of admonition: This is not a problem that will
disappear by itself. It is concerned with basic constitutional
rights that every public official, including this Court, is sworn
to uphold.
In February of 1973, this Court observed that no peaceful
community could long exist where two separate societies
viewed each other from ever higher walls of suspicion and
distrust. The tragic events of the past three months in the
city of Boston, Massachusetts, have confirmed this observation
with distressing consequences.
With full respect for the Board’s knowledge and ability; with
full recognition of its representative responsibilities; and with
full faith in its dedication and good will, the Court now re-
quests the Board of Education to report upon the months of
study and planning that have been completed as they relate to
a solution of the problem herein.
The Board of Education will submit its plan to the Court on
or before February 1, 1975. A completed plan will be made
available for public inspection on or before January 20, 1975.
Should it appear necessary, hearings on such plan and any
other submitted by interested parties will be held on or before
February 15, 1975.
It is so ORDERED.
/s/ CARL B. RUBIN
United States District Judge
73
E. DISTRICT COURT'S MARCH 10, 1975 ORDER
ADOPTING PLAN OF DAYTON BOARD OF
EDUCATION.
(Filed March 10, 1975)
IN THI UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
KASTERN DIVISION
MARK BRINKMAN, et al.,
Plaintiffs,
Vv.
JOUN J. GILLIGAN, Governor
of the State of Ohio, et al.,
Defendants.
ORDER
This matter is before the Court pursuant to remand by the
United States Court of Appeals for the Sixth Circuit. In ae-
cordance therewith this Court on January 7, 1975, directed the
School Board of the City of Dayton to submit a plan of
desegregation by February 1, 1975 consistent with such Order
of Remand. Subsequently, plaintiffs also filed a plan and a
hearing on both was held February 17, 19, and 20, 1975.
I. Basis of Court's Consideration
In order to place this Court's consideration of any remedial
plan in a proper context certain introductory observations
should be made:
74
1. All desegregation efforts must be tested initially against
the principle that separate facilities limited to blacks and
whites are forbidden;'
2. Racial balance, i.e., a reflection of the district percentages
in each school is not a Constitutional right equivalent to the
principle above enunciated;?
3. It is not the function of district courts to operate public
school systems, to determine social values, or to engage in re-
structuring of communities, personal attitudes, or sociological
benefits, except as these matters may bear upon Constitutional
rights.
To the foregoing the court would add the following which
™“In the field of public education the doctrine of ‘separate but equal’
has no place. Separate educational facilities are inherently unequal”;
Brown v. Board of Education, 347 U.S. 483 (1954) (Brown 1).
2Swann v. Board of Education, 402 U.S. at page 24:
“If we were to read the holding of the District Judge to require as a
matter of substantive Constitutional rights any particular degree of racial
balance or mixing, that approach would be disapproved and we would
be obliged to reverse. The Constitutional command to desegregate
schools does not mean that every school in every community must
always reflect the racial composition of the school system as a whole.”
See also: Milliken v. Bradley, —— U.S. —— (1974), 94 S.Ct. 3112
at p. 3125.
“The failure of an educational agency to attain a balance on the
basis of race, color, or sex or national origin of students among its schools
shall not constitute a denial of equal educational opportunity or equal
protection of laws.” 20 U.S.C. § 1704. e
3 “School authorities are traditionally charged with broad power to
formulate and implement educational policy and might well conclude,
for example, that in ord’: to prepare students to live in a pluralistic
society each school shoud have a prescribed ratio of Negro to white
students reflecting the proportion for the district as a whole. To do this
as an educational policy is within the broad discretionary powers of
school authorities; absent a finding of a Constitutional violation, how-
ever, that would not be within the authority of a federal court.” Swann
v. Board of Education, supra.
75
may be deemed findings of fact whether implicit in or ex-
plicated by previous opinions of this Court.
1. The State of Ohio does not now, nor has it since 1887
mandated a dual system of public education. To the contrary,
84 Ohio Law 34, dated February 22, 1887, specifically required
a unitary public school system.
2. The defendant School Board of the City of Dayton had
engaged in activities which were segregative in effect and
which did impinge upon the Constitutional rights of students
in such system. At no time, however, did defendant maintain
a dual system of education.
3. Overt evidences of such segregative activities have been
eliminated both by action of the Board of Education and by
previous Order of this Court but the effect thereof may not.
II. Duty of District Courts
With the determination that acts of segregation did occur it
is now necessary to examine the duty imposed upon this Court
under such circumstances. While there is a variation in the
description of such duty, this Court elects to be guided in
this matter by the following: “In fashioning and effectuating
the decrees, the courts will be guided by equitable principles.
Traditionally, equity has been characterized by a practical
flexibility in shaping its remedies and by a facility for adjust-
ing and reconciling public and private needs.” Brown v.
Board of Education, ( Brown IL), 349 U.S. 294.
There is, however, a final admonition :n Swann that bears
caretul attention: “As with any equity case, the nature of the
violation determines the scope of the remedy.” Swann v.
Board of Education, supra at p. 16.4
4A subsequent determination by the Supreme Court of the United
States in Lemon v. Kurtzman, 411 U.S. 192 (1973) holds there is broad
discretionary power granted to trial courts in shaping equity decrees.
Lemon, it should be pointed out, is not a school desegregation case.
76
Two events that bear upon the scope of appropriate remedy
have occurred since August 20, 197-4, the date of the appellate
holding in this case. ‘These events may well have changed
both “the nature of the violation” and the “scope of the
remedy.” They require further discussion.
First: Effective October 20, 1974, the Congress of the
United States adopted the Equal Educational Opportunities
Act, 20 U.S.C. § 1701 et seq.3
Section 1701 declares it to be the policy of the United States
that:
“1. All children enrolled in public schools are entitled to
equal educational opportunity without regard to race, color,
sex, or national origin; and
2. The neighborhood is the appropriate basis for determin-
ing public school assignment.”
Section 1712 imposes a limitation upon courts in the fol-
lowing language: “In formulating a remedy for a denial of
equal educational opportunity or a denial of equal protection
of the laws, a court . . . shall seek or impose only such remedies
as are essential to correct particular denials of equal educational
opportunity or equal protection of the laws. {Emphasis added]
In § 1713 is listed a priority of remedies and in § 1714 there
is a specific limitation which holds: “No court. . . shall pur-
suant to $1713 of this Title order the implementation of a
plan that would require the transportation of any student to
a school other than the school closest or next closest to his
place of residence which provides the appropriate grade level
and type of education for such students.”
Second: On December 6, 1974, the United States Court of
Appeals for the Sixth Circuit decided George and Carolyn
Higgins v. Board of Education of the City of Grand Rapids,
(No. 73-2189), —~- F.2d —— (1974). The Court in Higgins
5 The effective date of the above act is said to be, “On and after the
sixtieth day after August 21, 1974.”
tollowed Deal v. City of Cincinnati Board of Education, 369
F.2d 55, cert. denied 389 U.S. 847, in these words: “Deal
[upheld] the coustitutionality of retaining neighborhood
schools where racial imbalance has not been caused by any
discrimination on the part of school officials.”
If the nature of the violation determines the scope of the
remedy, it becomes critical to determine whether or not there is
an unremedied district-wide segregative act. This Court found
in its Order of July 13, that specific segregative acts, since
eliminated; the existence of optional attendance zones, now
eliminated; and conditions of racially imbalanced schools to-
gether required action by the federal courts.
We do not deal with a mandated dual school system; we do
not deal with actions taken on a_ school-by-school basis.”
We do deal with a system that has in the past permitted
segregative practices to exist. The issue, therefore, is whether
a plan intended to improve the educational opportunities for
all students without a school-by-school restructuring basis is
appropriate. This Court holds at this time that it is.
Ill. Plaintiffs’ Plan
The plaintiffs have urged upon this Court a plan which
will assign students among the Dayton schools in a black/white
6 Higgins mentions Brinkman vy. Gilligan on page 19. This Court
respectfully suggests that the following sentence contained therein:
“These three findings were held in their cumulative effect to be enough
to rellect de jure segregation.”, requires for full significance an exam-
ination of the specific holding of the court. See footnote 7 infra.
7 The only district-wide action of the defendants involved the rescis-
sion of resolutions in January of 1970. The United States Court of
Appeals dealt with the issue as follows:
“We hold that the findings of fact upon which the District Court based
its conclusion of accumulative violations are not clearly erroneous but to
the contrary are amply supported by the evidence. Fed. KR. Civ. P.
52A. However, we do not pass upon the question at the present time
as to whether the rescission of the Board resolutions in and of itself
constituted an independent violation of the Constitution. Brinkman v.
Gilligan, 503 F.2d 654 at 693.
78
ratio approximating the district-wide ratio for such schools
with a variation of 15%, plus or minus, from the mean.® To
accomplish this, the plaintiffs would create “clusters” of ele-
mentary schools, additional middle schools, and redistricted
high schools. The term “cluster” is taken to mean a group of
schools, usually more than two, within a common attendance
district to which students will be sent irrespective of proximity
to their place of residence.? Plaintiffs’ plan is a comprehensive
one; it was carefully prepared and well-presented. It will
do what the plaintiffs urge must be done. It is not intended
to, nor will it, in and of itself, provide alternate educational
programs or seek innovative learning experiences. In the
plaintiffs’ view, these are obligations of any school board irre-
spective of the integration or segregation of the schools. Since
this question is not before the Court, it will not be ruled upon.
In the Order of Remand by the United States Court of
Appeals for the Sixth Circuit, the following appears:
“In formulating a desegregation plan, the District Court, of
course, will adhere also to the guidelines enunciated by the
Supreme Court in Milliken v. Bradley, —— U.S. ——, 94 S.Ct.
3112 (1974).”
The majority opinion by Chief Justice Burger includes the
following: “Viewing the record as a whole, it seems clear that
the District Court and the Court of Appeals shifted the pri-
mary focus from a Detroit remedy to the metropolitan area
only because of their conclusion that total desegregation of
Detroit would not produce the racial balance which they per-
ceived as desirable. Both courts proceeded on an assumption
that the Detroit schools could not be truly desegregated — in
8 According to the testimony the appropriate percentages of Black
students for the year 1974-1975 are:
Elementary Schools 44.2%
Middle Schools 68.7%
High Schools 45.5%
9 Portions of the record dealing with this transportation are included
herein as Appendix A.
79
their view of what constituted desegregation — unless the
racial composition of the student body of each school sub-
stantially reflected the racial composition of the population of
the metropolitan area as a whole... . In Swann which arose
in the context of a single independent school district the Court
held, ‘If we were to read the holding of the District Court to
require as a matter of substantive Constitutional rights any
particular degree of racial balance or mixing, that approach
would be disapproved and we would be obliged to reverse;
402 U.S. at 24.
The clear import of this language from Swann is that de-
segregation in the sense of dismanteling a dal school system
does not require any particular racial balance in ‘each school,
grade or classroom.” 94 S.Ct. at 3125.
It would seem, therefore, that whether the area in question
is a single school district as in Swann or in multi-school districts
as in Milliken, the obligation does not exist to create racial bal-
ance which is in essence the-sole function of the plaintiffs’ plan.
Accordingly, this Court holds that a comprehensive plan,
such as plaintiffs suggest, is not required at this time. We
hold also that plaintiffs’ plan as presented is violative of the
Equal Educational Opportunities Act, 20 U.S.C. $1701, et
seq., and particularly §§$ 1713 and 1714.
IV. The Defendant's Plan
The defendant's plan was presented to the Court in a 17 page
memorandum with a 26 page exhibit of tables and statistics
and a 69 page appendix. It also contains much extraneous
material. Only the “magnet” program and the “learning cen-
ters” concept require comment.
A magnet high school'® with programs not offered at home
high schools and “satellite” magnet programs intended to
attract students from their high schools and districts of resi-
10 The term “magnet high school” is deemed to mean a school open
to all students with programs sufficiently attractive that students will
elect to attend. The Stivers-Patterson vocational complex is one exam-
ple of a magnet school.
50
dence is proposed. If successful, the magnet program will
provide an opportunity to students, both black and white, to
obtain additional educational advantages equally attractive to
both. Magnet schools are an acceptable desegregation device.
20 U.S.C. § 1713(f).
The magnet’s schools are supplemented by “learning cen-
ters” for foreign languages and business education for 6th, 7th,
and 8th grades; career motivation for 4th and 5th grades;
science for 5th, 6th, 7th and Sth grades; and a science en-
virenmental center for the 6th grade.
Learning centers to which students are transported are inte-
grative in concept. Plaintiffs assert that such transportation is
also violative of 20 U.S.C. §$ 1713 and 1714 since it would
require bussing of students to schools other than the school
closest or next closest to his or her place of residence. We
leave this argument for another day and another court. We
hold only that the plan comports with the Congressional de-
claration of policy set forth in 20 U.S.C, § 1701.
The overall plan is desegrative in intent; it is not violative of
Brown v. Board of Education, supra, and it does not appear to
violate the mandate of the United States Court of Appeals for
the Sixth Circuit so long as the following limitations are
observed:
1. All programs including the magnet schools and the
learning centers must be so located that the burden of
transportation is substantially equal upon both black
and white students;
bo
The composition of all classes must be no less than the
mean for the appropriate schools plus or minus 15%;"'
3. The faculty assigned to all programs must reflect the
racial percentages of faculty within the system as a
whole;
1 See Footnote 9.
Sl
4. The amount of time of student assignment to classes
in learning centers shall not be less than 20% of such
student’s total instructional time.
It is entirely possible that the proposed program will not
attract an appropriate number of black and white students and
might instead turther segregate the Dayton school system.
Because it is innovative, because it oflers the opportunity for
alternative quality education, and because it has been proposed
by a board of popularly elecied officials, the Pian should be
given a fair trial. The board's plan will be accepted provision-
ally for the school year 1975 — 1976. The provisional accep-
tance requires this Court once more to continue jurisdiction of
this matter.
There is an omission in the comprehensive plan submitted
by the defendants. It is not possible to determine whether
the numerous desegregative techniques set forth in this Court's
Order of January 7, 1975, have been fully investigated. It is not
known, for example, whether adjustments of existing school
attendance zones would reduce concentrations of black and
white attendance. It is not known whether feasible pairing or
clustering of schools could be accomplished without bussing
violative of the Equal Educational Opportunities Act.
Accordingly, the defendants are directed to conduct such a
study and to report to this Court on or before October 1, 1975,
of the results thereof on a school-by-school basis. Further hear-
ings will thereupon be held and an alternative plan consistent
with the Equal Educational Opportunities Act will be estab-
lished on or before January 1, 1976.
In the event defendants are unable by the methods approved
in July of 1973 and those approved by this Order to accomplish
what this Court deems to be adequate progress in complying
with the Equal Educational Opportunities Act and the man-
date of the United States Court of Appeals for the Sixth Circuit,
such alternative plan will become effective for the school year
beginning in September, 1976, and for all school years
thereafter.
82
V. The Dayton School Board
The willingness of this Court to accept defendant's plan at
this time is dictated in part by the attitude of the School Board
in the City of Dayton. This Court has not been faced with the
problems of Judge James B. McMillan who dealt with a re-
calcitrant school board in Swann v. Charlotte Mecklenburg
Board of Education, supra, nor with those of Judge W. Arthur
Garrity, Jr., who has dealt with a conii:macious school board in
Boston. Any reasonable plan submitted Uv a board which has
demonstrated good faith is entitled in the first instance to care-
ful consideration by a court and in cases of doubt to have
such doubt resolved in its favor. Good faith is a two-way
street.
VI. Progress of the Case
The pace at which desegregation cases proceed through the
courts has been a source of concern by courts and a source of
frustration for litigants.’ It has frequently been observed
that over 21 years has elapsed since Brown v. Board of Educa-
tion, supra, and the problem appears far from solved. It can
even be asserted that the magnitude of the problem has in
fact increased in that time. To postpone yet again the ultimate
determination of this matter may appear to the plaintiffs to be
a further delay of their rights. A chronology of the significant
12 The complexities of school desegregation have resulted in the fol-
lowing instances of prolonged litigation:
a. Goss v. Board of Education of the City of Knoxville, Tennessee,
original District Court opinion, 186 F.Supp. 559 (1960), recent opinion
of United States Court of Appeals for the Sixth Circuit, 444 F.2d 632
(1971):
b. Kelly v. Board of Education of the City of Nashville (subsequently
Metropolitan County Board of Education of Nashville), original District
Court opinion, 139 F.Supp. 578 (1956), recent opinion of the United
States Court of Appeals for the Sixth Circuit, 463 F.2d 732 (1972).
c. “These appeals represent another installment of an already lengthy
serial: “The desegregation of the Memphis Public School System’. The
initial chapter of this story was written in 1960...” Northcross v. Board
of Education of Memphis City Schools, 466 F.2d 890 (1972).
83
dates in this proceeding might held to place the matter in its
proper context,
This case was filed in May of 1972. It was heard on the
merils in November of 1972.
A Findings of Fact and Memorandum Opinion of Law was
filed in February of 1973. An Order imposing integrative
remedies upon defendants was filed in July of 1973. During
the school year 1973 — 1974 and 1974 — 1975 these remedies
were in effect.
The Order of Remand by the United States Court of Appeals
for the Sixth Circuit became effective in October of 1974. The
Order herein will at the minimum be effective for the school
year 1975 — 1976.
While this is hardly a model of speed and dispatch, it is con-
sistent with the magnitude of the problem that must be solved.
In the mass of rhetoric, emotional outbursts, and demo-
goguery that have attended the progression of many school de-
segregation cases, a few voices have been heard to suggest a
» of moderation. One such by Senior Judge Clifford O'Sul-
fivan of the United States Court of Appeals for the Sixth
Circuit bears repetition:
“The hope or dream that one day we will have become
a people without any motivation borne of our differing
racial beginnings will have a better chance of fulfillment
if patience accompanies our endeavors. Strident and
truculent judicial commands could indeed exacerbate
what now remains of racial bias and prejudice.”
Goss v. Board of Education of the City of Knoxville, Ten-
nessee, 444 F.2d 632 at 640.
VII. Conclusion
In view of the foregoing, the Court holds as follows:
1. The plan of the defendants as modified herein will have
an integrative effect upon the Dayton schocl system and is
provisionally adopted for the school year 1975 — 1976.
St
2. Tie plan of the plaintiffs is violative of The Equal
Educational Opportunities Act, 20 U.S.C. $ 1701, et seq., and
imposes a burden upon the defendant school board beyond
that which it is presently required to bear.
3. The state of the law in desegregation cases, the Order of
Remand in this case, and the Congressional intent in the Equal
Educational Opportunities Act, supra, do not require the adop-
tion of a mathematical ratio plan wherein cach school, grade
or c'assroom of the district shall contain any particular balance
of black and white students representative of the district as a
whole.
4. Where the previous actions of a school board indicate
only a difference of opinion on a subject concerning which
reasonable minds may reasonably differ, bad faith will not be
presumed and a proposal, although novel and untried, will
be given an opportunity for success.
5. In view of the developments, subsequent to August 20,
1974, the Court is of the opinion that holdings herein re-
garding the Equal Educational Opportunities Act involve a
controlling question of law as to which there is substantial
grounds for diflerence of opinion and an immediate appeal
from this Order may materially advance the ultimate termina-
tion of the litigation. Accordingly, the Court does so certify in
accordance with 28 U.S.C. § 1292(4)(b). An application for
appeal in accordance with this determination shall not stay the
proceedings in this Court. .
It is so ORDERED.
/s/ CARL B. RUBIN
United States District Judge
SS
APPENDIX A TO MARCIE 10, 1975
ORDER
. after this matter was raised during the Louisville argument
in the Sixth Circuit, and the Court's inquiry was whether or
not the Act of Congress could overcome the constitutional
provisions which were being enforced by the courts, and I
think I had related that to the witness. Lam not sure, but I
was present when the Sixth Circuit asked that question, and
that conformed with my earlier reading of the Broomfield
Amendments which had a similar purpose but, however, had
the same saving clause about the power of the courts is not
impaired where necessary to remedy a constitution violation.
THE COURT: Well, we are not going to debate the consti-
tutionality of an Act of Congress. 1 am concerned with the
presentation of a plan where it is somewhat peripheral as to the
consideration of this Act.
Mr. Greer, you may continue.
CONTINUATION OF CROSS EXAMINATION
BY MR. GREER:
Q. Yesterday, Doctor Foster, we discussed the schools that
were left unaflected by your pairing and clustering at the
elementary level, and the two examples of the contiguous
pairing in your plan. Let's move on to the other nine clusters
that comprise your elementary school plan. Each of those nine
clusters involve a substantial amount of required bussing of
school children to schools beyond those that are closest or next
closest to their place of residence; isn’t that correct?
A. I believe that is correct, yes.
QO. Let's look, for example, at cluster F of your group. A
child in the Lewton school district which is in the eastern part
of Dayton is required to spend grades 4 and 5 in Edison school
which is on the west side of Dayton; is that not right?
A. That's right.
86
Q. And am I not also correct that the following schools are
closer to the Lewton district: Lasunont, Grant which you are
converting to a middle school —
A. Would you hold that just a minute so I can make a
note of those?
Q. Sure.
A. Allright. Between Lewton and Edison you are speaking
ofP
Q. That's correct.
A. And what are the schools again?
Q. Well, let me just list them off It would be Fastmont,
Kemp, Washington which in your original plan you were going
to close, Franklin, Cleveland, Belmont, H[erace Mann and
then another school that you are planning to turn into a middle
school which is Ruskin, Huffinan, Webster, Emerson, Patter-
son, McGuffey, Hawthorne which is your original plan was
going to be closed, Irving and Whittier.
A. Well, if you are talking about a direct line between
the two schools, you couldn't possibly get all those schools in
between the two you are speaking of.
©. My question wasn’t phrased in terms of the way the
crow flies. It is whatever schools are closer to the residence of
a child living in the Lewton district, and all of those schools
would be closer to that child’s residence; isn’t that true?
A. You mean as the crow flies?
Q. Let's get a lame crow and say going in any direction.
Let’s make an arc just so we know the distance of what is closer
to a child living in the Lewton district.
A. It would say it generally might be true, but to say it was
truce, T would want to go to the map.
THE COURT: Why don't you do that, Doctor.
TIE WITNESS: How many schools did you name alto-
gether?
BY MR. GREER:
QO. Eighteen different schools.
A. All right.
Og ey i
——
87
(). And the same type of situation, of course, would be true
in that cluster with respect to students living in the Edison
district who would be going over to the cast cud of Dayton in
grades | through 3; isn’t that true?
A. Yes.
Q. If we turn to cluster C, a child in the first or second
grade at Mastmont would be required to be bussed beyond
some seventeen or eighteen closer schools in order to attend
classes at Highview; isn’t that correct?
A. Yes.
Q. And vice versa the same kind of situation would be true
for a child living in the Highview district during grades
3 to 5?
A. Yes.
©. If we look on cluster 1, the required bussing between
Cardendale and Shiloh passes by ten school zones which are
closer to the residences of the children in those two affected
school districts; isn’t that right?
A. Without counting them, [ would believe that is probably
accurate, yes.
Q. And without going through the tedium of cach of these
clusters, isn’t it true that the same kind of cross-town required
bussing affects students in 24 out of the 28 school zones that
are paired or grouped in clusters under your proposal?
A. Again without counting, IT would believe that would
probably be accurate, yes.
©. And you have before you the statistics, of course, as
to the number of children enrolled in these various schools,
don’t you?
A. Yes.
©. Am T not correct
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