# Appendix — Dayton Board of Education v. Brinkman > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0761%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1977 - **Citation:** 429 U.S. 1060 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0761%3A2. Public record. Not legal advice.