Respondents Brief — Dayton Board of Education v. Brinkman

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Supreme Court, U.S

~ FILED

APR 51977

—— LD

IN THE

ICHAEL RODAK, JR., CLERK

Supreme Court of the United eras |

OcToBER TERM, 1976

No. 76-539

Dayton Boarp or Kpucation, et al., Petitioners,

Mark BRINKMAN, et al., Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Sixth Circuit

BRIEF FOR RESPONDENTS

Ropert A. Murpiy Pau. R. Dimonp

NorMAN J, CHACHKIN O’Brien, Moran & Dimond

Wituiam E. CALDWELL 210 East Huron Street

Lawyers’ Committee For Ann Arbor, Michigan 48104

Civil Rights Under Law

520 Woodward Building

733 Fifteenth Street, N.W.

: , Salky & Henderson

») 4 e

Washington, D. C. 20005 525 Commerce Title Building

RicHArD AUSTIN Memphis, Tennessee 38103

Suite 1500

First National Bank Building

Dayton, Ohio 45306

Louis R, Lucas

Ratner, Sugarmon, Lueas,

NATHANIEL R. JONES

1790 Broadway

New York, New York 10019

Attorneys for Respondents

Press or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

TABLE OF CONTENTS

Page

ee A ccc ceeeeshneusdaseanans iil

PRBLAMINARY STATEMENT ......ccvcccccccccsescenes 1

CoUNTERSTATEMENT OF QUESTIONS PRESENTED ........ 3

I Oe OE SI oon 646b bn deennnntdenennss 3

Mis Ee ED hid cwhicede st caccucededscas 3

i Te SN ED 65606066 ccddcnenddesiicae 7

C. The Pre-Brown Dual System ...............4.. 8

a D. Continuation of the Dual System After Brown... 20

1. Faculty and Staff Assignments .......... 20

2. Optional Zones and Attendance Boundaries 24

3. The Board’s Rescission of Its Affirmative

SD . ¢ikendeheantsdndskédnaisaenbenns 30

K. The District Court’s Decision and Supplemental

- Se Ge DED ‘Saceeddctecsncuneesnease 35

i EL I “ba Zbnn can eucudes deaedieeriencdonsn 43

G. Remedial Proceedings ................000008: 45

eS GP SID in. 66.6600 60 benddndaskeiaes 55

BN nd n 65.064 06b 06s ce bbasenndededetessunnses 56

I. The Board Operated a Basically Dual School

System at the Time of Brown Which Was Not

Disestablished Prior to Implementation of the

Desegregation Plan Ordered Below .......... 58

A. A Dual System Existed in the Dayton Pub-

lic Schools at the Time of Brown] ........ 61

B. The Board Never Complied With Brown II 68

ITI.

Table of Contents Continued

Page

II. Alternatively, Plaintiffs Made Out an Unre-

butted Prima Facie Case of System-Wide In-

tentional Segregation Requiring a Similar

SE: cdudeawdwesdtuceunaeinedheendes sue

A. Plaintiffs’ Made Out a Prima Facie Case of

System-Wide De Jure Segregation ........

B. The Board Has Failed to Rebut Plaintiffs’

IY I od i od eee eens

The System-Wide Desegregation Plan Ordered

Below Does Not Impose a Fixed Racial Balance

as a Matter of Substantive Constitutional Right,

and the Plan Contains No Other Impermissible

SE | Suds Kddewevenueaetenckansecenaces

A. The Courts Did Not Order a Fixed Racial

Balance Either for Now or for Ever ......

B. The Board’s Resegregation Argument Is

WEE RK eROASKNHEEEE 564 OR C08 46.0000056

IV. Plaintiffs Have Standing to Bring This Case in

Their Own Right and as Representatives of the

DT [hie vesdeceiGeksekhantteteekindaens ss

Re reel as Se a Ek oh a Cael Oe

Be ae a a a ee i ee ah

1. School Construction, Closing and Site Selection. .

2. Grade Structure and Reorganization ...........

3. Pupil Transfers and Transportation ...........

ERE RE ie eg Re OA Ng Ne a eee eae

Table of Authorities iii

Cases: Page

Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973)

SE EE ccdcuconndcchsedescneoseseoensrcance 31n

Alexander v. Holmes County Bd. of Educ., 396 U.S.

EP GENE Sev ondnccesencecessevensecsveseseses 90n

Armstrong v. Brennan, 539 F.2d 625 (7th Cir. 1976).. 66n

Barrows v. Jackson, 346 U.S. 249 (1953) ...........-. 100n

Bazter v. Savannah Sugar Refining Co., 495 F.2d 437

(5th Cir.), cert. denied, 419 U.S. 1033 (1974)..... 8in

Berenyi v. District Director, 385 U.S. 630 (1967) ..... 81n

Board of Educ. v. State, 45 Ohio St. 555, 16 N.E. 373

DEE bdneceneedeeteanbunesssavesenraswesnsns 8

Board of Educ. of School Dist. of City of Dayton v.

State ex rel. Reese, 114 Ohio St. 188, 151 N.E. 39

‘cshdcckadedniuenenssevantedesethanneetes 11

Board of School Comm’rs v. Jacobs, 420 U.S. 128

EEEEED wane ccecescddenessteseteccicoecvasseses 99

Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973) (en

banc), aff’d in part & rev’d in part, 418 U.S. 717

EEUED cogecetccccscepeeceecscotssocceusss 66n, 75n

Brinkman vy. Gilligan, 539 F.2d 1084 (6th Cir. 1976),

cert. granted sub nom., U.S. —— (Jan. 17,

DE a ckcucedeednteebes uber shbeneeees ss 2, passim

Brinkman v. Gilligan, 518 F.2d 853 (6th Cir.), cert. de-

nied sub nom., 423 U.S. 1000 (1975) ........ 2, passim

Brinkman v. Gilligan, 503 F.2d 684 (6th Cir. 1974) 2, passim

Brown v. Board of Fduc., 349 U.S. 294 (1955) ...3, passim

Brown v. Board of Educ., 347 U.S. 483 (1954) .. 56, passim

Brown v. Weinberger, 417 F.Supp. 1215 (D.D.C. 1976). 31n

Castaneda v. Partida, 45 U.S.L.W. 4302 (U.S. March

8 ror re 65n

Clemons v. Board of Educ. of Hillsboro, 228 F.2d 853

eee 65n

Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972) ........ 81n

Cooper v. Aaron, 358 U.S. 1 (1958) ............--. 56, 93

Costello v. United States, 365 U.S. 265 (1961) ....... 81n

Dandridge v. Williams, 397 U.S. 471 (1970) ......... 73n

Davis v Board of School Comm’rs, 402 U.S. 33 (1971)

41, 59n, 69

Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976)...... Sin

Drummond v. Acree, 409 U.S. 1228 (1972) .......... 86n

Gonzales v. Landon, 350 U.S. 920 (1955) ............ 8in

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

58, 70, 71, 72

iv Table of Authorities Continued

Page

Hart v. Community School Bd. of Educ., 512 F.2d 37

it i MT .¢accedecacanssevevanstehend ean’ 66n

Higgins v. Board of Educ. of City of Grand Rapids,

508 F.2d 779 (6th Cir. 1974) ..........eeceees 46, 47

Hunter v. Erickson, 393 U.S. 385 (1969) ......... 78n, 81n

Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364

See Gk DE eacennenecdesdencanncssstsacese 81n

Kelsey v. Weinberger, 498 F.2d 701 (D.C. Cir. 1974).. 31n

Keyes v. School Dist. No. 1, 413 U.S. 189 (1973). . 3, passim

Loving v. Virginia, 388 U.S. 1 (1967) ............... 81n

McDaniel v. Barresi, 402 U.S. 39 (1971) ........ 59n, 71n

McLaughlin v. Florida, 379 U.S. 254 (1964) ......... Sin

Milliken v. Bradley, 418 U.S. 717 (1974) ............ 87n

Monroe v. Board of Comm’rs, 391 U.S. 450 (1968) ....

56, 58n, 70, 93

Monroe v. Pape, 365 U.S. 167 (1961) ............... 68n

Morgar *. Kerrigan, 509 F.2d 580 (1st Cir. 1974), cert.

dented, 421 U.S. 963 (1975) ....... cc ccccccccces 66n

New York Times Co. v. Sullivan, 376 U.S. 254 (1964).. 81n

North Carolina State Bd. of Educ. v. Swann, 402 US.

— 8 eer eraser ore 59n, 71n, 77n

Nowak v. United States, 356 U.S. 660 (1958) ........ Sin

Nyquist v. Lee, 402 U.S. 935 (1971), aff’g 318 F.Supp.

710 (W.D. N.Y. 1970) (three-judge court) ...... 77n

Oliver v. Michigan State Bd. of Educ., 508 F.2d 178

(6th Cir. 1974), cert. denied, 421 U.S. 963 (1975)

66n, 84

Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424

DD cc6duhwesenddined wane 54, 56, 88n, 92, 98, 99 100

Pettway v. American Cast Iron Pipe Co., 404 F. 2d 211

ro oe eee ee Be 81n

Plessy v. Ferguson, 163 U.S. 537 (1896) ............ 68

Potts v. Flax, 313 F.2d 284 (Sth Cir. 1963) .......... 101n

Raney v. Board of Educ., 391 U.S. 443 (1968) ....... 58n

Rodriquez v. East Texas Motor Freight, 505 F.2d 40

(5th Cir. 1974), cert. granted, 44 U.S.L.W. 3670

Oe eo 100n

Schneiderman v. United States, 320 U.S. 118 (1943)... 81n

Senter v. General Motors Corp., 532 F.2d 511 (6th Cir.

DE Kacaveucnedenensiedeedentudassetoucedess 100n

Shapiro v. Thompson, 394 U.S. 618 (1969) ......... 84n

Smith v. Board of Educ., 365 F.2d 770 (8th Cir. 1966) 95

Sosna v. Iowa, 419 U.S. 393 Dy kencacvaessiasses 99

Table of Authorities Continued Vv

Page

Stanton v. Stanton, 45 U.S.L.W. 3506 (U.S. Jan. 25,

MEN Shbgbseh ERD ech eeeeesbecpedveccecsoneeces 63n

Swann vy. Charlotte-Mecklenburg Bd. of Educ., 402

SMe et CUED cavcdeneusessaccececscasese 40, passim

Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 905

DD ccéneeeseneesrgnesgssesearndapacegavons 100n

United States v. Board of School Comm’rs, 322 F.

Supp. 655 (S.D. Ind. 1971) ...........eeeeeee 12n

United States v. Chesterfield County School Dist., 484

PBS FO CEG Cbs. TBF) oc cccccccccccccccccseces 81n

United States v. Montgomery County Bd. of Educ.,

Se Wed, MD CID cc ccccceccccpeccesececeseos 23

United States v. New York, N.H. & H.R.R., 355 US.

sence ad ec auheg sens 60n6esanese tes 78n

United States v. School Dist. of Omaha, 521 F.2d 530

(8th Cir.), cert. denied, 423 U.S. 946 (1975).. 66n, 75n

United States v. Texas Educ. Agency, 467 F.2d 848

(Gt Cir. 1973) (em Game) ..ncccccccccccccccees 75

Village of Arlington Heights v. Metropolitan Housing

Dev. Corp., 45 U.S.L.W. 4073 (U.S. Jan. 11, 1977)

65n, 78n

Warth v. Seldin, 422 U.S. 490 (1975) .............. 98

Washington v. Davis, 426 U.S. 229 rn, Pied Buns é

5n, 71n, 78n, 81n

Whitely v. Wilson City Bd. of Educ., 427 F. od 179 (4th

SE, MED cddebeehenbeeeeeanecearcaceceseoess 100n

Woodby v. Immigra.ion & Naturalization Service, 385

ee st teeadaeheadncecnesse ee sess 81n

Wright v. Council of City of Emporia, 407 U.S. 451

DEED: SbbGd dd dh eeececcoeseuennccscesescoseses 71n

Statutes and Rules:

20 U.S.C. §4 1701 et seq. (Equal Educational

Opportunities Act of 1974) .............505. 46, 86n

SD UBD. GEFEBID) 2c cccccccccccccccccccccsccces 46, 86n

Ps GED eve c ccc sccccccccsccsoccesceces 46

i i | ES PPTTTTETTIITrTriLiTrrii Tree 4

43 UB.C. $6 19638-1968 2... cccccccccccccccscccess 4

42 U.S.C. § 2000d (Title VI of the Civil Rights Act

OE TED cedcccccccecccscccccccssceccoss 4, 23, 30, 74

vi Table of Authorities Continued

Page

Ouse Bev. Conn 6 SRRRGE 2... oc ccccccccssecscenuuanen 34n

SS Cane Baws BB .cccccsccsecccessccesdscausneenae 8

} FF, SE Ef OS ae 96, 99, 100n

mule GB, Fun BB Csv, Be .ccvccccscoscesesecuneee 50

Rule 801(d) (2), Fen. R. Evip. ... 2... 0. cee cece eee eee 99

Other Authorities:

C. McCormick, Law or Evinence (1954) ............ 81n

Moore’s Freperat Practice (2d ed. 1974) ........ 97, 100n

J. Wicmore, Evipence (3d ed. 1940) ............ 78n, 81n

McBain, Burden of Proof: Degrees of Relief, 32 Cauir.

Aa Bay. B63 (IBGE) .. ccccccccnccscesesesaua 81n, 82n

Note, Reading the Mind of the School Board: Segre-

gative Intent and the De Facto/De Jure Distine-

tion, 86 Yatz L.J. 317 (1976) ..... cc ccccccvces 65n

Notes of the Advisory Committee on 1966 Amend-

ments to Bate EB. .o..csccccopecasswssenseenune 100n

Ohio Attorney General Opinion No. 6810 (July 9,

IMT. 32n

IN THE

Supreme Court of the United States

OcroBER TERM, 1976

No. 76-539

Dayton Boarp or Epucation, et al., Petitioners,

Mark BrINKMAN, et al., Respondents,

On Writ of Certiorari to the United States Court of Appeals

for the Sixth Circuit

BRIEF FOR RESPONDENTS

PRELIMINARY STATEMENT

At least two good thines are happening in Dayton,

Ohio, this school year for the first time ever. Black

and white children are attending public school to-

gether in significant numbers, and their attendance in

this fashion is pursuant to a desegregation plan which

is fair and equitable to both races and demeaning to

neither. Second, the Equal Protection Clause of the

Fourteenth Amendment to the Constitution as appli-

cable to public education is receiving substantial vindi-

eation in the Dayton school district. These happy re-

sults derive from unhappy circumstances; longstand-

ing policies and practices of de jure segregation re-

quiring federal judicial intervention. This lawsuit has,

to date, produced numerous hearings, opinions and or-

ders in the district court, three appeals and one denial

of certiorari. The case appears considerably more com-

plex than it actually is, however, primarily because the

district judge grappled most ineffectively with settled

constitutional principles and terminology and most re-

luctantly with the facts. But the essential determina-

tive facts have been found by the courts below or they

are uncontestable. On the basis of these facts, the

United States Court of Appeals for the Sixth Cireuit

Court hfs, on three separate occasions, adjudged plain-

tiffs’ constitutional right to a system-wide remedial

plan of pupil desegregation based on the nature and

extent of the violation. Brinkman v. Gilligan, 503 F.2d

684 (6th Cir. 1974) [hereinafter, ‘‘Brinkman I’’]; 518

F.2d 583 (6th Cir.) [** Brinkman II’), cert. denied sub

nom., 423 U.S. 1000 (1975); 539 F.2d 1084 (6th Cir.

1976) [‘* Brinkman ITTI’’), cert. granted sub nom.,

U.S. — (1977) (the instant case). Following Brink-

man II the district court appointed a Master and,

upon receipt of his report, ordered into effect a plan

of desegregation which has considerable potential for

uprooting two-thirds of a century of unabated state-

inflicted racial separation in the Dayton publie schools.

That plan has been approved in Brinkman III as a

fair, sensitive, flexible and otherwise equitable re-

sponse to the entrenched constitutional wrong.

In proper perspective, therefore, this ease raises the

following:

COUNTERSTATEMENT OF QUESTIONS PRESENTED

1. Did the Dayton Board of Education meet its bur-

den of showing that it dismantled the basically dual

school system inherited at the time of Brown v. Board

oy Education, 347 U.S. 483 (1954), following which the

system-wide racial segregation extant at the time of

trial adventitiously reappeared ?

2. Did the Dayton Board, under Keyes v. School

District No. 1, 413 U.S. 189 (1973), rebut plaintiffs’

prima facie case of system-wide intentional segrega-

tion?

3. If the Dayton Board failed to meet either of these

burdens, did the system-wide remedial plan of pupil

desegregation approved below require a fixed racial

balance or otherwise constitute an abuse of equitable

discretion ?

4. Do plaintiffs have standing to bring this action

in their own right and as representatives of the class?

STATEMENT OF THE CASE

A. Prior Proceedings

Black and white parents and their minor children

attending the Dayton, Ohio publie schools, and the

Dayton Branch of the National Association for the

Advancement of Colored People [hereinafter, ‘‘plain-

tiffs’’], filed their complaint April 17, 1972 in the

United States District Court for the Southern District

of Ohio. Defendants included the Dayton Board of

Edueation and its individual members, and the Super-

intendent of the Dayton Publie Schools [hereinafter

‘‘netitioners”’ or ‘Dayton Board” or ‘‘Board’’], and

the Governor, Attorney General, State Board of Edu-

eation and Superintendent of Publie Instruction of

Ohio (hereinafter, ‘‘State defendants’’].' Plaintiffs

alleged that all of these defendants were responsible

for operating a racially segregated public school sys-

- 7 yore the Fourteenth Amendment and

ederal civil rights statutes, 4 S.C, -

en oat 4 2 U.S.C. §§ 1981, 1983

Trial limited by the district court to whether the

Dayton public schools are unlawfully segregated by

race pursuant to actions of the Dayton Board began

November 13, 1972 and concluded on December 1. On

February 7, 1973 the district court issued its Findings

of Fact and Memorandum Opinion of Law concluding

that various actions on the part of the Dayton Board

defendants and their predecessors ‘‘are cumulatively

in violation of the Equal Protection Clause.’’ A.12.’

The Court thereupon ordered the Dayton Board to

*The State defendants are not parties to this a l

orders have been entered against them below. The Siete Saperin.

tendent and the State Board of Education have, however, filed an

amicus brief with this Court, the principal purpose of which

appears to be to get this Court to prejudge an issue now pending

in the district court: a motion filed by the Dayton Board seeking

an order requiring the State defendants to participate in the

implementation of the desegregation plan ordered below. We cau-

tion only that the figures set out in the State Board’s amicus brief

(pp. 2-3) have not been tested in the adversary process, and no

assumptions about them are warranted.

b, » * ”’ references are to the printed two-vol i

With respect to matters not included in the comaiie. — rs

the original record in the same manner employed by petitioners

See Pet. Br. at 17n.1. ‘‘R.I.’’ refers to the pages in the eon-

secutively-paginated twenty-volume transcript of the November-

December, 1972 violation trial; ‘‘R.II.’’ to the transcript of the

February 1975 remedial hearing; and ‘‘R.III.’’ to the December

1975 and March 1976 remedial hearing. ‘‘PX”’ refers to plain-

tiffs’ evidentiary exhibits and ‘‘DX’’ to those of dsfeniente.

submit a remedial plan of desegregation; the Dayton

Board purported to comply through a submission of

March 29, 1973. A.131-44. By its Supplemental Order

on Remedy filed July 13, 1973 (A.25-31), the district

court, while expressing disappointment at the Board’s

submission, approved the Board’s limited proposal on

a tentative basis. Both plaintiffs and defendants ap-

pealed.

On August 20, 1974 the Court of Appeals for the

Sixth Circuit filed its opinion in Brinkman T, 508 F.2d

684 (A.32-69). The court of appeals affirmed the dis-

trict court’s finding that the Dayton school system

was being operated in violation of the Constitution,

but the court of appeals also concluded that the

Board’s proposed cure for that violation was inade-

quate in light of the seope of the violation. A.68. Ac-

cordingly, the case was remanded to the district court

to formulate a constitutionally adequate desegregation

plan. The Dayton Board did not seek review in this

Court of the judgment in Brinkman I.

On remand the district court, by order of January

7, 1975 (A.70-72), directed the submission of new de-

segregation plans, upon which (A.144, 154) a hearing

was held on February 17, 19 and 20, 1975. On March

10, 1975 the district court entered an Order provision-

ally adopting another limited plan submitted by the

Board. A.73-84. The plaintiffs immediately appealed

seeking summary reversal on the ground that the plan

and the reasoning adopted by the district court were

plainly inadequate and in direct conflict with the man-

date of the court of appeals.

On June 24, 1975 the court of appeals issued its

opinion in Brinkman IT, 518 F.2d 853 (A.89-96). The

court denied plaintiffs’ motion for summary reversal

because of the short time remaining before commence-

ment of the 1975-76 school year; but the eourt re-

manded the case with directions that the district court

“adopt a system-wide plan for the 1976-77 school

year that will conform to the previous mandate of

this Court and to the decisions of the Supreme Court

in Keyes and Swann.”’ A.96. The court of appeals di-

rected that its mandate issue forthwith. The Dayton

Board sought review in this Court, and certiorari was

denied on December 1, 1975, 423 U.S. 1000. On remand,

following evidentiary hearings and the appointment

of a Master, the district court entered an order on

March 23 (A.110-13) and a judgment on March 25 (A.

114-16), modified by order of May 14, 1976 (A.117),

essentially adopting the desegregation plan reeom-

mended by the Master but granting the Board the

option to implement cqually effective alternatives,

Defendants’ appeal was heard on an expedited basis,

and the court of appeals issued its decision in Brink-

man ITT on July 26, 1976, 539 F.2d 1084 (A.118-23).

The court rejected the Board’s objections to the plan

of desegregation approved by the district court. The

court of appeals and Circuit Justice Stewart denied

the Board’s applications for stay on August 16 and

August 19, 1976, respectively. The plan thus became

operative at the start of the 1976-77 school year, as

required by Brinkman IT and confirmed by Brinkman

M11, This Court granted the Dayton Board’s petition

for a writ of certiorari on January 17, 1977.

The various opinions and orders below will be de-

scribed in greater detail as they appear chronologically

in the remainder of this Statement. Part B provides a

summary overview of the Dayton school district. Parts

C and D below then describe the facts adduced at the

November 1975 violation trial. (The facts relating to

violation issues which have been reserved for decision

by the court of appeals are summarized in Appendix

A, attached hereto.) The remaining parts summarize

the lower courts’ opinions and orders, as well as the

facts adduced at the remedial hearings which are per-

tinent to the disposition of the ease in this Court.

B. The Dayton District

As reflected in the report (A.157-58) of the Master

appointed by the district court, the city of Dayton,

Ohio, has a population of 245,000 and is located in the

east-central part of Montgomery County in the south

western part of the state of Ohio, approximately 50)

miles due north of Cincinnati. The Dayton school dis-

trict is not coterminus with the city; some parts of the

echool district include portions of three surrounding

townships and one village, while some portions of the

city are included in the school districts of three al

jacent townships. The total population residing within

the Dayton school district houndaries is 268,000; the

school pupil population in 45,000, slightly less than

50% of whom are black, Prior to implementation of

the desegregation plan here at issue, the vast majority

of black and white pupils had separately attended

schools either virtually all-white or all-black in their

pupil racial composition, F.g., A. 49-1, 311-315 (PX

9A-2E), 502-506 (PX 100A-100F), 588-589 (DXCU).

The Dayton district is bisected on a north/south line

by the Great Miami River. Historically, the black

population has been concentrated in the south-central

and southwest parts of the city, primarily on the west

side of the Miami River and south of the east-west

Wolf Creek. See A.577-79 (1940, 1950 and 1960 census

tract maps). The black population continues to be con-

centrated in the southwest quadrant, but there is now

also a substantial black population in the northwest

quadrant across Wolf Creek. Extreme northwest Day-

ton and most of the city east of the Miami River are

and have been heavily white in residential racial com-

position. See A.580 (1970 census tract map).

Geographically and topographically there are no

major obstacles to complete desegregation of the Day-

ton school district. A.121. The Master determined that

where pupil transportation is necessary, the maximum

travel time would be about twenty minutes. A.162. As

found by the Board’s experts, due to the compact na-

ture of the system, ‘‘the relative closeness of the Day-

ton Sehools makes long-haul transportation[,] an

issue in many cities[,] moot here.’’ A.304, Thus, there

is no issue whether the time or distance of transporta-

tion is here excessive or otherwise poses any threat

to the health or education of pupils.

C. The Pre-Brown Dual System

In 1887 the state of Ohio repealed its school segre-

gation law and attempted to legislate the abolition of

separate schools for white and black children. 85 Ohio

Laws 34. That statute was sustained the following year

by the Supreme Court of Ohio. Board of Education v.

State, 45 Ohio St. 555, 16 N.E. 373 (1888). The laud-

able goals of that legislation were not attained in Day-

ton until the current school year.

The facts of racial segregation in the Dayton publie

schools, as revealed by the record before the Court,

begin in 1912.° In that year school authorities assigned

* Many of the facts set forth in this part of the statement were

admitted by all Dayton Board defendants in their responses to

Louise Troy, a black teacher, to a elass of all-black

pupils just inside the rear door of the Garfield school ;

all other classes in this brick building were occupied

by white pupils and white teachers. About five years

later, four black teachers and all of the black pupils

at Garfield were assigned to a four-room frame house

located in the back of the brick Garfield school build-

ing with its all-white classes. Shortly thereafter, a two-

room portable was added to the black *‘annex mak-

ing six black classrooms and six black teachers located

in the shadow of the white Garfield school. A four-

room “permanent”? structure was later substituted

(about 1921 or 1922), and eight black teachers were

thus assigned to the eight all-black classrooms im the

Garfield annex. A.209-11.*

About 1925 school authorities learned that two black

children, Robert Reese and his sister, had been at-

plaintiffs’ pre-trial Requests for Admissions, served on October 13,

1972. The Superintendent and three Board members filed responses

separate from those of the Board and its four “majority mem-

bers. These facts were also the subject of extensive and largely

uncontroverted evidence at trial.

In 1917 the black classes in the black annex at Garfield con-

tained about 50 black children per room, A.210. Thereafter, Mrs.

Ella Lowrey, a black teacher for several decades in the Dayton

system, taught a class of 42 black children when white ys

inside the brick building had classes of only 20 white pupils.

_—~ Lowrey’s service began in 1916 and continued through

1963. with several years’ interruption at various times. In her

words, ‘‘doing 40 years service in all in Dayton, . . I never

taught a white child in all that time. I was always in black

schools, black children, with black teachers.’’ A.215, (At one time

during this early history prior to 1931, one black teacher, Maude

Walker, taught an ungraded class of all-black boys at the Weaver

school. All other black teachers in the system were assigned to the

black annex at Garfield. A. 186.)

tending the Central school under a false address, even

though they lived near the Garfield school. They had

accomplished this subterfuge by walking across a

bridge over the Miami River River. A.197.° The Reese

children were ordered by school authorities to return

to the Garfield school, but their father refused to send

them to the black Garfield annex. Instead, he filed a

lawsuit in state court seeking a writ of mandamus to

compel Dayton school authorities to admit children

of the Negro race to public schools on equal terms with

white children. A. 198. In a decision entered of record

on December 24, 1925, the Court of Appeals of Ohio

denied a demurrer to the mandamus petition. This de-

cision was affirmed by the Ohio Supreme Court and

‘During this time, there apparently were some other black

children also in ‘‘mixed’’ schools. For example, Mrs. Phyllis

Greer attended ‘‘mixed”’ classes at Roosevelt high school for three

years prior to 1933. A.182. But even when they were allowed to

attend so-called ‘‘mixed’’ schools, black children were subjected

to humiliating discriminatory experiences within school. At Roose-

velt, for example, black children were not allowed to go into the

swimming pool and blacks had separate showers while Mrs. Greer

was there (A, 183-83); while Robert Reese was at Roosevelt, there

were racially separate locker rooms and blacks were allowed to

use the swimming pool, but not on the same day whites used it

A.198-99, At Steele High School, black children were not allowed

to use the pool et all during this period. A.290-91.

Even in the ‘‘mixed’’ classrooms black children could not eseape

the official determination that they were inferior beings because

of the color of their skin, Mrs. Greer vividly remembers, for ex-

ample, ‘‘when I went to an eighth grade social studies class I was

told by a teacher, whose name I stil] remember, . . . that even

though I was a good student I was not to sit in front of the

class because most of the colored kids sat in the back.’’ A.183.

And she remembers with equal clarity that, while in the second

grade at Weaver, she ‘‘tried out for a Christmas play and my

teacher wanted me to take the part of an angel and the teacher who

was in charge of the play indicated that I could not be an angel

_.. beeause there were no colored angels.’’ R.1.479.

Dayton school authorities were specifically reminded

that state law prohibited distinetions in publie sehool-

ing on the basis of race. Board of Education of School

District of City of Dayton vy. State ex rel. Reese, 114

Ohio St. 188, 151 N.E. 39 (1926).

Following this state court decision Robert Reese

and a few of his black classmates were allowed to at-

tend school in the brick Garfield building, but the black

annex and the white brick building were otherwise

maintained. Black children were allowed to attend

classes in the brick building only if they asserted them-

selves and specifically so requested. A.212-13. Other-

wise, they ‘were assigned to the black teachers in the

black annex and the black classes.’’ A.213.°

The black pupil population continued to grow at

Garfield, and another black teacher was hired and as-

signed with an all-black class placed at the rear door

of the brick building. A.213. In 1932 or 1933, Mrs.

Lowrey (see note 4, supra), was also placed in the

brick building, again with an all-black class ‘‘in a little

cubbyhole upstairs,’’ making ten black teachers with

ten black classes at Garfield. A.214. Finally, around

1935-36, after most of the white children had trans-

ferred out of Garfield, school authorities transferred

all the remaining white teachers and pupils in the

brick building to other schools and assigned an all-

° During the pendency of the Reese case, the eight black teachers

assigned to the Garfield annex were employed on a day-to-day

basis because school authorities did not know whether the black

teachers were going to be in the Dayton system after the lawsuit.

Black teachers would not be needed if the courts required the

elimination of all-black classes, since the Board deemed black

teachers unfit to teach white children under any circumstances.

A.211-12.

black faculty and student body to Garfield. A.186-187,

214-15, 524 (PX 150 1); PX 155 (faculty directories).’

But the black pupil population was growing during

these years, and even the conversion of Garfield into

a blacks-only school was not sufficient to accommodate

the growth. So, with the state court decision in the

Reese case now eight years old, the Dayton Board con-

verted the Willard school into a black school. The

conversion process was as degrading and stigmatizing

as had been the creation and maintenance of the Gar-

field annex and the ultimate conversion of the brick

Garfield into a black school. In the 1934-35 school year,

six black teachers (who were only allowed to teach

black pupils) and ten white teachers had been assigned

to the Willard school. In September of 1935, all white

teachers and pupils were transferred to other schools,

and Willard became another school for black teachers

and black pupils only. A.186-87, 524 (PX 150 I); PX

155 (faculty directors).

At about this same time, the new Dunbar school,

with grades 7-9, opened with an all-black staff and an

all-black student body. A.524 (PX 150 1).* The Board

7 Throughout this period and until 1954, black children from a

mixed orphanage, Shawn Acres, were assigned across town to the

black classes in the black Garfield school, while the white orphan

children were assigned to nearby white classes and white schools.

A.181-82. This practice was terminated following the Brown deci-

sion in 1954 at a time when the black community in Dayton was

putting pressure on the school administration to stop mistreating

black children. A.483 (PX 28).

* Mr. Lloyd Lewis, who was present at its inauguration, testified

that the Dunbar school ‘‘was purposely put there to be all black

the same as the one in Indianapolis [the Crispus Attucks school,

see United States v. Board of School Comm’rs, 332 F. Supp. 655,

665 (S.D. Ind. 1971)] that I had left.’’ R.I. 1378. Dunbar was

resolution opening Dunbar stated that grades 7 and

8 were to be discontinued at Willard and Garfield’ and

‘that attendance at the ... Dunbar School be optional

for all junior high school students of the 7th, 8th, and

9th grade levels in the city.’’ A.227, 539 (PX 161 A).

Of course, this meant only all black junior high stu-

dents, since Dunbar had an all-black staff who were

not permitted by Board policy to teach white children.

A.186, 228; PX 155 (faculty directors).

Within a very short time, grades ten, eleven and

twelve were added to the black Dunbar school. Then in

1942, just two years after the Dayton school authori-

ties had reorganized to a K-8, 9-12 grade structure,

the Board again assigned the seventh grades from the

all-black Willard and Garfield schools to the all-black

Dunbar school. A.227, 520 (PX 161 B). Black chil-

dren from both the far northwest and northeast sec-

tions of the school district traveled across town past

many all-white schools to the Dunbar school. A.190;

R.I. 1226-27. Many white children throughout the west

side of Dayton were assigned to Roosevelt high school

past or away from the closer but all-black Dunbar high

school. See PX 47 (overlay of 1957 attendance boun-

daries)."° Although some black children were allowed

also excluded from competition in the city athletic league until

the late 1940’s, thereby requiring Dunbar teams to travel long

distanees to compete with other black schools, even those located

outside the state. A.183, 205-06 ; R.1.569-70.

® These two black elementary schools served grades 7 and 8,

whereas the system prior to 1940 was otherwise generally organized

on a K-6, 7-9, 10-12 grade-structure basis. R.I. 1871.

Prior to 1940, no high schools had attendance boundaries.

R.1.1886, The black Dunbar school was located in close proximity

to the Roosevelt high school (see PX 47) which, although it always

had space, apparently had too many black children. Along with

to attend Roosevelt, those who became ‘behavior

problems’? were transferred to Dunbar. A.184, And

other black children from various elementary schools

were either assigned, channeled, or encouraged to at-

tend the black Dunbar high school. A.238-39, R.1. 574."

Even these segregative devices were not sufficient to

contain the growing black pupil population. So be-

tween 1943 and 1945, the Board, by way of the same

gross method utilized to convert the Willard school

Steele and Stivers, these high schools were located roughly in the

center of the city and served high schoo] students throughout the

city. (In addition, the Parker school had been a city-wide single-

grade sclfool which served ninth graders. R.I.1921-22; A.288-89.)

In 1940 attendance boundaries were drawn for the high schools

with the exception of Dunbar and a technical school (whose name

varied), both of which long thereafter remained as city-wide

schools. See note 22, infra, and accompanying text.

Dunbar continued until 1962 as a city-wide all-black high school.

In that year the Dunbar building was converted into an elemen-

tary school (renamed McFarlane) with attendance boundaries

drawn to take in most of the students previously attending the

all-black Williard and Garfield schools, which were simultaneously

closed. MeFarlane opened with an all-black faculty and all-black

pupil population, At the same time, a newly-constructed Dunbar

high school opened with both asigned faculty and students over

90% black. A.315 (PX 2E), 316 (PX4), 508 (PX 130C), 248;

PX3.

The most effective means of forcing black children to attend

the blacks-only Dunbar, of course, was the psychological one of

branding them unsuited for association with white children, See

note 5, supra. As Mr. Reese testified, he ‘‘chose’’ Dunbar over

Roosevelt after suffering the humiliation of being assigned to

separate locker rooms, separate showers, and separate swimming

pools at Roosevelt: ‘‘I wanted to be free. I felt more ai home at

Dunbar than I did at Roosevelt .. . You couldn’t segregate me

at Dunbar.’’ A.199. Similarily, Mrs. Greer testified: ‘‘I went to

Dunbar because I felt that if there was going to be—if we were

going to be separated by anything, we might as well be separated

by an entire building as to be separated by practices.’’ A.183.

into a black school, transformed the Wogaman school

into a school officially designated unfit for whites.

White pupils residing in the Wogaman attendance

zone were transferred by bus to other schools, to which

all-white staffs were assigned. By September 1945 the

Board assigned a black principal and an all-black fae-

ulty with an all-black student population to the Woga-

man school, A.183-84, 200, 524 (PX 1501); PX 155

faculty directories).

Still other official devices were used to keep blacks

segregated in the publie schools. One such device, re-

sorted to regularly during the 1940’s and early 1950's,

was to cooperate with and supplement the discrimina-

tory activities of Dayton public housing authorities.

Throughout this period, racially-designated publie

housing projects were constructed and expanded in

Dayton. A.178-79, 510 (PX 143 B). In 1942, the Board

transferred the black students residing in the black

DeSoto Bass public housing project to the Wogaman

school (A.540 (PX 161 X )), and a later overflow to

the all-black Willard school, rather than other schools

that were equally close (A.185), while transferring

white students from the white Parkside publie hous-

ing project to the McGuffey and Webster schools and

the eighth grades from those schools to the virtually

all-white Kiser school. A.540, Then in the late 1940's

and early 1950’s, the Board leased space in white and

black public housing projects for classroom purposes,

and assigned students and teachers on a uniracial basis

to the leased space so as to mirror the racial ecomposi-

tion of the publie housing projects. A.179-80, 513-23

(PX 143 J).

By the 1951-52 school year (the last year prior to

1964 for which enrollment data by race is available),

the Dayton Board was operating what southern edu-

eators would immediately recognize as a dual school

system. During that year there were 35,000 pupils en-

rolled in the Dayton district, 19% of whom were black.

There were four all-black schools, officially designated

as such: Willard, Wogaman, Garfield and Dunbar.

These schools had all-black faculties and (with one

exception, an assignment made that school), no black

teachers taught in any other schools. PX 3. In addi-

tion, there were 22 white schools with all-white faecul-

ties and all-white student bodies. And there was an

additional set of 23 so-called ‘‘mixed’’ schools, 7 of

which had less than 10 black pupils and only 11 of

which had black pupil populations greater than 10%

(ranging from 16° to 68%). A.506 (PX 100K).

These latter schools were generally located in the area

surrounding the location of the 4 designated all-black

schools. These few schools with substantial racial mix,

however, were marked by patterns of racially segre-

gatory and discriminatory practices within the school,

and, with the one exception noted above, none had any

black teachers. Eighty-three percent of all white pu-

pils attended schools that were 90% or more white in

their pupil racial composition. Of the 6,628 black pu-

pils in the system, 3,602 (or 54°.) attended the four

all-black schools with all-black staffs; and another

1,227 (or 19% ) of the system’s black pupils were as-

signed to the adjacent schools which were about to be

converted into ‘‘black”’ schools (see note 12, infra, and

accompanying text). Thus, 73°. of all black students

attended schools already or soon to be designated

**black.”’

In December 1952 the Dayton Board confronted its

last pre-Brown opportunity to correct the officially-

imposed school segregation then extant. Instead, the

Board acted in a manner that literally eemented in the

dual system and promised racially discriminatory pub-

lie schooling for generations to come. What the Board

did is referred to in the record as the West-Side Re-

organization, and it involved a series of interlocking

segregative maneuvers.

At this time, the Board was under pressure, as its

record reflect, from ‘‘the resistance of some par-

ents to sending their children to school in their dis-

trict beeause it is an all negro [sic] school.’’? A.499

(PX 75). In response, the Board constructed a new

all-black school (Miami Chapel) loeated near the all-

black Wogaman sehool and adjacent to the black De-

Soto Bass public housing project; Miami Chapel

opened in 1953 with an all-black student body and an

85°, black faculty. A.316 (PX 4). The Board altered

attendance boundaries so that some of the children

in the four blacks-only schools were reassigned to the

four surrounding schools with the next highest black

pupil populations; and, through either attendance

boundary alterations or the creation of optional zones,

it reassigned white students from these mixed schools

to the next ring of whiter schools, A.257-65, 283-84;

PX 123." And the Board began to assign black teach-

12'The boundaries of the black Garfield and Wogamon schools

were retracted, thereby assigning substantial numbers of black

children to the immediately adjacent ring of ‘‘mixed’’ schools

with the highest percentage of black pupils: Jackson (already 36%

black in the 1951-52 school year), Weaver (68% black), Edison

(43% black), and Irving (47% black). A.506 (PX 100E). Jack-

son and Edison were re-zoned to include more black students, and

their outer boundaries were effectively contracted through the

creation of ‘‘optional zones’’ so that white residential areas be-

came attached, for all practical purposes, to the next adjacent

ring of ‘‘whiter’’ schools. Thus, the Board brought blacks in one

end and allowed whites to escape out the other in these ‘‘transi-

ers to these formally mixed schools, thereby confirm-

ing their identification as schools for blacks rather

than whites. A.259-60; PX 3.

This latter aspect of state-imposed segregation—

i.e., faculty assignments on a racial basis ‘‘ pursuant

to an explicit segregation policy of the Board”’ (A.56)

—also underwent a slight change in school board pol-

icy. Prior to this time, as previously noted, the Board

would not allow black teachers to teach white children

under any circumstances; black teachers were assigned

only to all-black schools, and white teachers were as-

signed only to white and ‘‘mixed”’ schools. Accord-

ingly, in the 1951-52 school year, the Board substituted

a new, But equally demeaning, faculty assignment

policy (A.481 (PX 21)):

The school administration will make every ef-

fort to introduce some white teachers in schools

in negro [sic] areas that are now staffed by ne-

groes [sic], but it will not attempt to force white

teachers, against their will, into these positions.

The administration will continue to introduce

negro [sic] teachers, gradually, into schools hav-

ing mixed or white populations when there is evi-

dence that such communities are ready to accept

negro [sic] teachers.

tion’’ schools. The Board also created optional zones in white

residential areas contained within the boundaries of the original

four schools for blacks only, so that whites could continue to

transfer out of these all-black schools. A.257-65. Prior to 1952

whites had been freely allowed to transfer to ‘‘whiter’’ schools,

but such transfers were abolished in 1952. A.262, 482 (P X28).

Optional zones were thus substituted for the prior segregatory

transfer practice. (The optional-zone technique is discussed in

greater detail at pages 24-30, infra.

WD Se ee te. a eS

This faculty policy, incredibly, was contained in a

statement of the Superintendent disavowing the ex-

istence of segregated schools in the Dayton district.”

At the time of this Court’s May 17, 1954 decision in

Brown v. Board of Education, therefore, Dayton

school officials were operating a racially dual system

of public education. This segregation had not been

imposed by state law; indeed, it was operated in open

defiance of state law.

13JTn 1954 the Superintendent made a further statement, which

included the following: ‘‘All elementary schools have definite

boundaries and children are obliged to attend the school which

serves the area in which they reside. The policy of transfers from

one school to another was abolished two years ago when the

boundaries of several westside elementary schools were shrunken,

permitting a larger number of Negro children to attend mixed

schools.’’ A.482 (PX 28). As we have seen (see note 12, supra),

however, the elimination of free transfers was accompanied by a

new device, optional zones, which served the same purpose of

allowing whites to avoid attendance at black or substantially black

schools.

The Superintendent’s 1954 statement also contains the follow-

ing (A.483) :

About two years ago we announced a policy of attempting

to introduce white teachers in our schools having negro [sic]

population. We have not been too successful in this regard

and at the present time have only 8 full or part-time teachers

in these situations. There is a reluctance on the part of white

teachers to accept assignments in westside schools and up to

the present time we have not attempted to use any pressure

to force teachers to accept such assignments. The problem of

introducing white teachers in negro [sic] schools is more dif-

ficult than the problem of introducing negro [sic] teachers

into white situations. There are several all-white schools which

in the near future will be ready to receive a negro [sic]

teacher.

As we shall also show (see pages 20-24, infra), this race-based as-

signment of faculty continued for almost two more decades as a

primary device for earmarking schools as intended for blacks or

whites.

D. Continuation of the Dual System After Brown

Consideration of the Board’s segregatory conduct

following this Court’s decision in Brown may be di-

vided into six general areas: (1) faculty and staff

assignments, (2) optional zones and attendance boun-

daries, (3) Board rescission of a Board-adopted plan

of desegregation, (4) school construction, closing and

site selection, (5) grade structure reorganization, and

(6) pupil transfers and transportation. We summar-

ize seriatim the facts relating to the first three areas.

The facts pertaining to the latter three areas, and

their legal significance, have been contested by the

Board, and the court of appeals has reserved decision

with respect to these practices. Since in our view dis-

position of this issue is not essential to affirmance of

the judgment below, we have summarized the facts re-

lating to these latter three areas in Appendix A, at-

tached hereto.”

1, Faculty and Staff Assignments

The Board continued to make faculty and staff as-

signments in accordance with the racially diserimina-

tory policy announced in 1951 (see page 18, supra)

“One of the three areas discussed in this part of the State-

ment—faculty and staff assignments—was discussed by the court

of appeals in Brinkman I in part IV of its opinion, entitled “Other

Alleged Constitutional Violations,’’ on which the court reserved

decision. A.56-67, But ‘‘Staff Assignment’’ (A.56-61) is included

in that part of the opinion only because of plaintiffs’ contention,

implicitly rejected by the district court (see page 37, infra), that

staff assignments at the time of trial continued to be made on a

racially discriminatory basis. It is clear from the court of appeals’

unqualified determination of the pre-1971 facts pertaining to staff

assignments that the appellate court did not consider these prac-

tices to be the subject of dispute or of adverse district court find-

ings. See note 47, infra.

at least through the 1970-71 school year. For example,

in the 1968-69 school year, the Board assigned 633

(85% ) of the black teachers in the Dayton system to

schools 90% or more black in their pupil racial com-

positions, but only 172 (9%) of the white teaciers to

such schools. The Board assigned only 72 (9%) of the

black teachers to schools which were 90% or more

white, but 1,299 (70°.) of the white teachers were

assigned to such schools. A.320 (PX 5D).

Prior to the 1968-69 school year, the Board main-

tained teacher applications on a racially separate

basis. Onee teachers were hired, their records were

kept on various racial bases which were used to segre-

gate teachers and schools. Substitute teacher files were

color-coded by race and substitutes assigned on a

racially dual basis. And the Board restricted the hir-

ing, transfer, and promotion of black teachers pri-

arily to black or ‘“‘changing’’ schools while white

assignments or transfers to these schools were dis-

couraged. A.191-95, 201, 204-05, 187-91; PX 3; R.L.

673-88, 536-542, 731-35, 742,50, 762-69. Principals, as-

sistant principals, counselors, coaches and other cleri-

cal and classified personnel were assigned on an even

more strictly segregated basis. A.486 (PX 42), 234,

191-93. Thus, from at least 1912 through 1968 the as-

signment of personnel in the Dayton school system

fit perfectly the classical mold of state-imposed segre-

vation: such assignments mirrored the racial compo-

nition of student bodies at new schools and additions,’

and continued to correspond to the racial identity of

16 The Board assigned faculty members to these new schools and

additions so as to reflect the pupil racial composition at —_.

thereby tailoring them as “‘black’’ or “white in accordance wit

the Board’s policy. A.316-17 (PX 4), 275; R.1.1860.

those schools already all-black or in transition."® White

teachers similarly were assigned in disproportionate

numbers to the predominantly white schools.” It was

therefore possible at anytime during this period to

identify a ‘‘black’’ school or a ‘‘white’’ school any-

where in the Dayton system without reference to the

racial composition of pupils.

In November of 1968 the United States Department

of Health, Edueation and Welfare { hereinafter,

“THEW’’) began an investigation of the Dayton public

schools to determine whether official policies and prac-

**In the 1963-64 school year, for example, the Board assigned

40 of 43 new full-time black teachers to schools more than 80%

black in their racial compositions. A.319 (PX 5A). Although

somewhat less obvious, this practice was equally effective in

identifying the formerly mixed schools as changing or black by

assigning more than token black faculty only to these schools and

thereafter assigning increasing numbers of black teachers only

to these schools. PX 3; A.195-97, 224. As articulated by Mrs.

Greer, a long-time black student, teacher and administrator in

the system (see note 5, supra), the ‘‘assignment of staff to go

along with the neighborhood change was the kind of thing that

gave the impression of the schools being designed to be black,

because black staff increased as black student bodies increased.”’

A.191.

* Thus, for example, in the 1968-69 school year, the Board con-

tinued to assign new teachers and transfers according to the fol-

lowing segregation practice (A.319 (PX 5A)):

Schools with Schools with

predominantly predominantly

white student black student

enrollment enrollment

Black Teachers 40 95

White Teachers 223 64

As the Superintendent testified, ‘‘it is obvious in terms of the

new hires and transfers for that year the predominating pattern

was the assignment of black teachers to black schools and white

teachers to white schools.’’ A.233.

tices with respect to race were in compliance with

Title VI of the Civil Rights Act of 1964. By letter of

March 17, 1969, the Acting Director for the Office of

Civil Rights of HEW notified the Dayton Superin-

tendent (and the chief state school officer) that - fa]n

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.”? A.415 (PX 114). Following this

determination the Dayton Board agreed with HEW

to desegregate all 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

(A.416 (PX 11F)), in aecordance with the principles

set forth in this Court’s decision in United States v.

Montgomery County Board of Education, 395 U.S. 225

(1969). At that time, the Dayton professional staff

was approximately 70% white and 30% black; the

Board-HEW agreement required complete staff de-

segregation by September 1971. A.417. Nevertheless,

bv the time of trial in November 1972, it was still pos-

sible to identify many schools as ‘‘black schools’’ or

‘‘white schools’? solely by the racial pattern of staff

assignments.”

' a 2

No non-racial explanation for the Board s — ay

tory of assigning faculty and staff on a racial basis _

possible.” Nor can the impact of this manifestation 0

18The manner in which the Board’s assignment of its profes-

sional staff at the high schoo} level, for example, still served i

racially identify schools, athough considerably less yap y

than prior to the 1971-72 school year, is demonstrated by a - e

set out by the court of appeals in Brinkman I. A.57, pe ye r,

classified personnel (e.g., secretaries, clerks, custodians and wr 7

teria workers) continued to be assigned on a racially segregate

basis, A.234.

19 School officials, of course, had absolute control over the place-

’

state-imposed segregation on student assignment pat-

terns by minimized. While that effect is not precisely

measurable, it is so profound that it could not have

a eliminated merely by desegregating faculties and

staffs.”

2. Optional Zones and Attendance Boundaries

. We have already shown how the Dayton Board uti-

lized optional zones and attendance boundary manipu-

lation as segregative devices in connection with the

1952 West-Side Reorganization (see pages 16-18, su-

pra). There are additional examples of both practices

which stand on their own as segregation techniques.

Optional zones are dual or overlapping zones which

alow a child, in theory, a choice of attendance between

two or more schools. A.241. Yet, the criteria stated by

the Board for the creation of both attendance boun-

daries and optional zones are precisely the same: they

constitute merely a type of boundary decision and

ment of their employees. Consequently, the Board’s historic race-

oriented assignments of faculty members intentionally earmarked

schools as ‘‘ black’’ or ‘‘ white.’’ A.274.

*° Dr. Robert L. Green, Dean of the Urban College and Pro-

fessor of Educational Psychology at Michigan State University,

described how such faculty-assignment practice ‘‘facilitates the

pattern of segregation’’ (A.197) in these terms (A.195) :

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 de-

segregation occurs, be it on a voluntary basis or under court

order, the effect remains that school is yet perceived 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.

See also A.274-75.

st A eT

serve no other educational or administrative purpose.

A.238, 279. Optional zones have existed throughout the

Dayton school district and have apparently been cre-

ated whenever the Board is under community pressure

which favors attendance at a particular school or dis-

favors attendance at a particular school, A.254; R.I.

1818-19. Other than for such purely ‘‘political’’ rea-

sons, there is no rationale which supports the estab-

lishment of an optional zone rather than the creation

of an attendance boundary, which is a more predict-

able pupil-assignment device (A.280); and optional

zones are at odds with the so-called ‘‘neighborhood

school concept.’’ A.12-15.

In many instances in Dayton optional zones were

created for clear racial reasons, as, for example, in the

West-Side Reorganization, while in other instances

the record reveals no known reason for their existence.

But even in these latter instances some optional zones

have had clear segregative effects. From 1950 to the

time of trial, optional zones existed, at one time or

another, between pairs of schools of substantially dis-

proportionate racial compositions in some fifteen in-

stances directly effecting segregation at some 30

schools.” In addition, at the high school level, Dunbar

remained in effect a city-wide optional zone for blacks

23'The West Side Reorganization in 1952-53 (see pages 16-18,

supra) involved six optional areas with racial implications: Wil-

lard-Irving, Jackson-Westwood, Willard-Whittier, Miami Chapel-

Whittier, Wogamon-Highview, and Edison-Jefferson, A.252-53,

257-65; see also note 12, supra. Other optional zones with demon-

strable racial significance at some time during their existence

include the following: Three optional zones between Roosevelt and

the combination Fairview-White; two optional zones between Resi-

dence Park and Adams; and optional zones between Westwood

and Gardendale, Colonel White and Kiser, Fairview and Roth,

Irving and Emerson, Jefferson and Brown, and Jefferson and

Cornell Heights. A.250, 253-54, 255, 268-69, 279-83; PX 47-51.

only through 1962 when it was converted into an all-

black elementary school (A.248, 269-71) (see note 10,

supra); and Patterson Co-Op remained a city-wide

and, through the 1967 school year, virtually all-white

optional attendance zone.” In conjunction with the

attendance-area high schools, these two special high

schoois operated as city-wide dual overlapping zones

contributing to the pattern of racially dual schools at

the high school level throughout the district. See R.1.

1518-21, 1483-84.

Actual statistics on the choices made by parents and

children in four optional areas are available. In each

instance the option @perated in the past, and in three

instances at the time of trial, to allow whites to trans-

fer to a ‘‘whiter’’ school. For example, in the Roose-

velt-Colonel White optional area, which was carved

out of Roosevelt originally, from the 1959-60 school

year through the 1963-64 school year a cumulative

total of 1,134 white but only 21 black students at-

tended Colonel White. A.464 (PX 15A1). Testimony

from a Dayton school administrator indicates that

from 1957 through 1961, although this optional area

was predominantly white, black students who lived in

the area attended Roosevelt which had become virtu-

ally all-black (Colonel White was 1% black). A.221-22.

*? The city-wide Patterson Co-op operated in a more subtle segre-

gative fashion than did Dunbar. In 1951-52, Patterson had no

black students and no black teachers (A.507 (PX 130B)); by

1963 its student body and faculty were only 2% black (A.508

(PX 130C)); and by 1968 the pupil population rose to 18.3%

black and the faculty to 3.5% black. A.509 (PX 130D). Students

were admitted to Patterson through a special process involving

coordinators and counselors, none of whom were black prior to

1968. A.286-88, Patterson has over the years served as an escape

school for white students residing in black or ‘‘changing’’ at-

tendance zones, particularly Roth and Roosevelt. R.I. 1483-84.

eS eit

—

The Roosevelt yearbook for 1962 shows that only three

white seniors from the optional area attended the

black high school. A.462 (PX 15A). As Mrs. Greer

testified, this optional area did ‘‘an excellent job of

siphoning off white students that were at Roosevelt.

A.190.”

Although many of these still-existing optional zones

had already fulfilled their segregative purpose by the

time of trial, over time they clearly contributed sub-

stantially to and facilitated school segregation.

Moreover, even by the time of trial several of these

optional areas continued to permit whites to escape

to ‘“‘whiter’’ schools, thereby further impacting the

black schools and precipitating additional instability

ond transition in residential areas.”

23 As another example, the Colonel White-Kiser option acquired

its racial implications after its creation in 1962 with sty he ou

transition of the Colonel White school, to which the Colone

White-Roosevelt option contributed in no smal] measure. At its

inception and for several years thereafter, when both schools were

virtually all-white, most children in the White-Kiser option area

chose White. As Colonel White began to acquire more black stu-

dents, whites chose Kiser more often until in the 1971-72 school

year, no white children chose the 46% black Colonel White school,

while 20 chose the 6% black Kiser school, A.465 (PX 15B1), 554.

The rebuttal figures provided by the defendants on the Resi-

dence Park-Jackson optional area are equally instructive, because

the figures relate to a time when the optional area did not even

exist by reason of the construction of the virtually all-black Carl-

son school and its assumption of the old Veterans Administration

optional area as its regular attendance zone. A.586, 587. In any

event, defendants’ exhibit shows that from 1957 through 1963

no children from the former V.A, optional area attended Jackson, -

while 32 whites (and 8 blacks) attended Residence Park. In the

1957-58 school year, Residence Park was basically white and Jack-

son was black, A.250-51; R.I. 377. (By 1961, however, Residence

Park had become 80% black. A.508 (PX 130C).)

2 From 1968 through 1971, when Roosevelt was a 100% black

Formal attendance boundaries, in conjunction with

optional zones, have also operated in a segregative

fashion; and in some instances firm boundaries were

also drawn along racial lines.** An example is the

boundary separating Roth and Roosevelt which was

drawn in 1959. Roth took almost all the white resi-

dential areas on the far west side of Dayton from

Roosevelt. At its opening, Roth had only 662 pupils,

while Roosevelt’s enrollment dropped by 602. Coupled

With the exodus of whites out of Roosevelt through

the Colonel White-Roosevelt optional area, almost all

whites were thereby transferred out of Roosevelt by

school, for example, 375 white children from Roosevelt-Colonel

White optional area attended Colonel White. A.464, Throughout

its life, then, this option has allowed very substantial numbers of

white children to avoid attending Roosevelt. By 1968, however, and

not atypically, the optional area had undergone significant racial

change and substantial numbers of black children were also at-

tending Colonel White. A.462-64, Plaintiffs’ expert, Dr. Foster

explained how optional attendance areas facilitate both educational

and racial segregation :

[T |he short term effect . . . is to allow whites to move out of

a school assignment that is becoming black . . . [A.255].

[GJ enerally where you have an optional zone which has

racial implications, you have an unstable situation that every-

one 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 , . . |'T| hese

[optional areas in Dayton] accelerated and precipitated furth-

er segregation... [A.254-55].

*° In some instances, and in addition to the official optional zones

attendance boundaries have not been enforeed for white children

when assigned to black schools. For example, a pupil locator map

made to assist in developing a middle school plan in the 1970-71

school year showed that many white children assigned by their at-

tendance zone to the predominantly black Greene school were ac-

tually attending predominantly white schools located on the other

side of Wolf Creek. R.1.1210-11, A similar situation existed in the

Carlson area. See note 23, supra.

Board action, in short order converting Roosevelt into

a virtually all-black school, A.268-69; PX 48 & 46.

(And, of course, the designation of Roosevelt as a

black sehool was evidenced, in the traditional way, by

assigning ever-increasing numbers of black teachers

to the school. PX 3.)

At about this same time, Meadowdale high school

also opened, but as a virtually all-white school, A.317

(PX 4). Opportunities were available for the place-

ment of such high schools and use of the excess capa-

city or the redrawing of the boundaries of Roth,

Roosevelt, Stivers, Fairview and Meadowdale in order

to accomplish desegregation. But school authorities

selected the alternatives that continued rather than

alleviated the extreme racial segregation at the high

school level. R.1. 1696-1700; PX 6; A.249, 268-69. This

pattern was capped in 1962 when a new Dunbar high

school opened with a virtually all-black faculty and a

defined attendance zone that produced a virtually all-

black student body. At the same time the Board con-

verted the old Dunbar high school building into an

elementary school (renamed MeFarlane), whose

newly-created attendance zone took in most of the stu-

dents in the zones for the all-black Williard and Gar-

field schools, which were closed, See note 10, supra.

Finally, the Board also persistently refused to re-

draw boundaries between, or pair, contiguous sets of

schools which had been, and were at the time of trial,

substantially disproportionate in their racial compo-

sitions. Examples of such contiguous pairs include

Drexel (8% black) and Jane Adams (79% black) ;

McGuffey (42% black) and Webster (1% black) or

Allen (1 % black); Irving (99% black) and Emerson

(9% black); Whittier (99% black) and Patterson

(0% black). PX 68, 62. Such alternatives to segrega-

tion—many of which were recommended by subordi-

nate school administrators and even the Ohio State

Department of Education (A.204-05, 419-55 (PX 12))

—were rejected by the Board.

3. The Board’s Recission of Its Affirmative Duty

As reflected in the foregoing pages, black citizens

of Dayton have been thwarted in their attempts to end

state-imposed racial segregation in their public

schools. Even aggressive action, such as that taken by

Robert Reese’s father when he went to court in 1926

to challenge intentional efforts to segregate his chil-

dren, was effectively blunted by Dayton school authori-

ties committed to separation of the races. See pages

9-12, supra. During another critical period, 1951-52,

the Board imposed the West-Side reorganization and

a new racially discriminatory faculty-assignment pol-

icy. See pages 16-19, supra, The black community’s re-

peated protests following Brown to the continued

segregation also were turned aside. See A.358-59, 456-

97, 459-61. By the late 1960’s, however, those who ob-

jected to state-imposed school segregation began to

gain allies, both in the white community in Dayton and

among state and federal agencies. As previously noted

(see pages 22-23, supra), HEW conducted a Title VI

compliance review in 1968 and forced the Board in

1969 to agree to end its racially dual faculty-assign-

ment practices. HEW had also noted the ‘‘substantial

duality in terms of race or color with respect to distri-

bution of pupils in the various schools .. .”’ ( A.415),

but the agency did not pursue this concern with simi-

larly aggressive action.”

** As is commonly known, from the frequent judicial declara-

tions on the subject, HEW has generally failed to fulfil] its Title

Also during these years, the Dayton Board, in the

1971 words of the State Department of Education,

‘‘nassed various and sundry resolutions . . . designed

to equalize and to extend educational opportunities,

to reduce racial isolation, and to establish quality

integrated education in the schools.’’ A.423, But these

were just words and informal ones at that. As the

State Assistant Superintendent for Urban Edueation

noted at the same time, there was a definite need for

action and not just words. A.422.

On April 29, 1971, the Board requested assistance

from the State Department of Education’s Office of

Equal Educational Opportunities to provide technical

assistance in the development of alternative desegre-

gation plans. The Board also authorized its President

to appoint a committee of community representatives

tu assist and advise the Board in connection with such

proposed plans. A.354-55.

The State Department of Education responded by

assembling a team of consultants and specialists to

evaluate data and make recommendations. Their re-

commendations were submitted to the Dayton Super-

intendent on Jur. 7, 1971. A.419-55. The State De-

partment advised the Dayton Board of its constitu-

tional and other legal obligations (A.435) (emphasis

in original) : |

Since the Board, as an agency of state govern-

ment, has created the inequality which offends

/ igati with respect to pupil desegregation in both the

ak nt te South. See, e.g., Adams Vv. Richardson, 480 F.2d

1159 (D.C.Cir. 1973) (en banc); Brown v. Weinberger, 417 F.

Supp. 1215 (D.D.C. 1976). And it has not been notably aggressive

even with respect to faculty segregation. See Kelsey v. Weinberger,

498 F.2d 701 (D.C.Cir. 1974).

the Constitution, the Ohio State Department of

Educatiou must advise that the Dayton Board of

Education clearly has an affirmative duty to com-

ply with the Constitution; that is, as the Supreme

ourt has stated, ‘‘to eliminate from the public

schools all vestiges of state-imposed segregation.”’

The State Department then turned its attention to a

list of alternatives, and urged the Dayton Board to

shoulder its constitutional obligations now (A.441)

(emphasis in original) :

Delaying tactics could be continued. The Board,

in spite of resolutions and overt commitment,

could choose to make only the slightest mandated

changes, and to utilize the best legal talent avail-

able to resist compliance with constitutional re-

quirements. Other school districts have chosen

this alternative, even as Dayton has used similar

methods in the past. However, the highest court

in the land has stated the constitutional offensive-

ness of state-imposed segregation of school-chil-

dren, and persisting delay clearly violates the oath

of office of members of the Board of Education

in the state of Ohio.

The State Department concluded by recommending ‘‘a

comprehensive plan’’ that would be a ‘‘constitutionally

valid and inoffensive, educationally sound, and mor-

ally proper’’ approach for ‘‘the Dayton Board of Edu-

cation, acting as an agency of Ohio State Govern-

ment ...’’ to take. A.444.”

*7 Under the terms of Opinion No. 6810, issued by the Ohio At-

torney General on July 9, 11/56, the State Department of Educa-

tion has the primary affirmative duty to see that local school dis-

tricts comply with their Fourteenth Amendment obligations with

respect to public schooling, A.597-606.

;

- ve.

SPS RD.

The Board-appointed advisory committee of com-

munity representatives became known as the ‘‘Com-

mittee of 75.’’ In his charge to the Committee, the

Dayton Board President stated: ‘*We have admitted

that the district is guilty of procedures which have led

to the racial isolation of school children.’”’? A.356. The

Committee issued its report in the fall of 1971. The

Report of the Committee of 75 (A.345-69) also urged

the Board to adopt a comprehensive plan and joined

the State Department in emphasizing ‘‘that time for

a change in Dayton has run out! We must act now.”

A.369.

On December 8, 1971 the Dayton Board of Educa-

tion, for the first time ever, responded with meaning-

ful action. It first ‘‘recognize[d] and admit[ted] 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 attend-

ance districts, the location and expansion of schoo!

buildings, pupil assignment practices, design of cur-

riculum suitable to urban needs, the assignment of

teachers and other staff, and the conduct of student

activity programs ... .’’ A.321. The Board then

adopted a program of actual system-wide desegrega-

tion and directed the Superintendent to implement

such a new pupil-assignment policy for the 1972-73

school year. The new policy consisted of two principal

parts: first, the existing attendance zones and the

Freedom of Enrollment policy“ were abrogated effec-

28'The Board’s Freedom of Enrollment policy was adopted in

1969. A.466-67. It had a very negligible, one-day desegregative ef-

fect (i.e., a few black students transferring to white schools), but

white students did not transfer to black schools, A.478 (PX 16D).

As the Superintendent testified, ‘‘the pattern . . . has been perva-

tive September 1, 1972; second, in their stead, a new

pupil-assignment policy was adopted, the goal of

which was that no schoo! would have a racial compo-

sition ‘‘substantially disproportionate to the district

as a whole.’’ A.329. Pursuant to the Board’s diree-

tions, the Superintendent of Schools adopted a plan

for Fall 1972 implementation prepared by Dr. Gordon

Foster and others of the Title IV Florida School De-

segregation Consulting Center of the University of

Miami. A.370-414.

On January 3, 1972, however, a newly-constituted

Dayton Board” rescinded the prior Board’s action of

December 8, 1971, refused to consider the plan adopted

by the Stiperintendent, reinstated the Freedom of En-

roliment policy and reimposed the segregated attend-

ance zones, A.331-53." Plaintiffs instituted this action

on April 17, 1972, and the case went to trial in Novem-

ber 1972.

At that time, the Dayton school district was segre-

gated by race, as it always had been. In the 1971-72

school year (when the complaint was filed), there were

sive down through the years, that no white students, regardless of

from where they came, or the purpose,, were assigned to black

schools.’’ A.232,

2° Three new members of the seven-member Board had been elect-

ed the previous November to take office in January.

*° By its actions, the new Board made it clear to the Superin-

tendent that he would not be permitted to exercise his independent

authority over the assignment of pupils (see On1o Rev. Cope §

3319.01) to implement the desegregation plan. R.I. 1096, The stat-

ute just cited vests the local Superintendent of Schools with the

responsibility to ‘‘assign the pupils of the schools under his super-

vision to the proper schools and grades,’’ except with respect to

the assignment of pupils to schools outside their schoo] districts

of residence, where board approval is necessary.

69 schools in the Dayton district; 49 of them had stu-

dent enrollments 90% or more one race (21 black, 28

white). Of the 54,000 pupils enrolled, 42.7% were

black; 75.94% of all black students were assigned to

the 21 black sehools. A.314 (PX2D)." Thus, although

the system was larger, it was basically the same dual

system that existed at the time of Brown (see page

15-16, supra).

Every school which was 90% or more black in 1951-

52 or 1963-64 or 1971-72, and which was still in use at

the time of trial (1972-74 school year) remained 90%

or more black. Of the 25 white schools in 1972-73 (see

note 31, supra), all opened 90% or more white and, if

open, were 90% or more white in 1971-72, 1963-64,

and 1951-52. A.315 (PX 2E). See also Brinkman I,

A.50-51.

E. The District Court’s Decision and Supplemental Order

on Remedy

On February 7, 1973, the district court entered its

Findings of Fact and Memorandum Opinion of Law.

A.1-14. The district court dealt with the parties’ con-

tentions and the evidence in a cursory fashion. It made

21Tn 1972-73 there were 68 schools, of which 47 were virtually

one-race (22 black, 25 white). Fully 80% of all classrooms were

virtually one-race, (Of the 50,000 pupils in the district that year,

44.6% were black), A.311 (PX 2A).

22 It was also the same one that existed in the 1963-64 school

year (the first year after Brown for which racial data is available).

In that year there were 64 schools in the Dayton system, of which

57 had student enrollments 90% or more one race (13 black, 44

white). Of the 57,400 pupils in the district that year, 27.8% were

black. Yet 79.2% of all the black pupils were enrolled in the 13

black schools; and 88.8% of all pupils were enrolled in the 13 black

schools; and 88.8% of all pupils were enrolled in such one-race

schools. A.313 (PX 2C).

few specific findings of subsidiary fact, devoting most

of its attention to surprisingly general and imprecise

ultimate findings and conclusions. And it never shifted

the burden of proof from plaintiffs despite the prior

history of segregation.

With respect to the extensive and largely uncontro-

verted proof of pre-Brown racial discrimination, the

court noted the “isolated but repeated instances of

failure by the Dayton School Board to meet the stand-

ards of the Ohio law mandating an integrated school

system.’’ A.2. The court concluded (A.3) :

While arguably consistent with the social mores

of the times, the treatment of black children dur-

ing this period was at least inhumane and by

present standards, reprehensible. . . . Both by

reason of the substantial time that has elapsed

and because these practices have ceased, however,

the foregoing will not necessarily be deemed to be

evidence of a continuing segregative policy.

With respect to the Dunbar high school, the court

found that it ‘‘was intended to be, and did in fact

become, a black high school, with an all black teacher

and pupil population . ... [that] continued to exist

as a city-wide all-black high school until it closed in

1962.’’ A.4-5. Except to note the black Garfield annex

in the 1920’s the court made no findings with respect

to the other black schools or the Board practices with

respect to public housing projects. The court also ig-

nored the West-Side Reorganization (except to note

that the Westwood-Jackson optional zone had “racial

significance at the time of its creation.’’ A.8). No

findings were made concerning the 1962 conversion of

Dunbar into the all-black McFarlane elementary serv-

ing the former all-black Willard and Garfield attend-

ance areas and the opening of a new Dunbar high

school with a virtually all-black faculty and student

body.

With respect to faeulty and staff, the court found

that the Board’s intentionally segregative assignment

policies and practices could not ‘‘be dismissed on a

deminimus theory.’? A.3. The court found, however,

that “‘[b]y 1969 each school in the Dayton system had

an integrated teaching staff consisting of at least one

black faculty member,’’ and that faculty were there-

after ‘‘substantially integrated’? pursuant to the

Board’s agreement with HEW. A.4. The district court

further found that the Board’s employment of blacks

in certain ‘‘positions such as skilled craftsmen . . . re-

mains substantially below the percentage of black

students population or the percentage of black teach-

ers and administrators.’’ A.4.

As to the pattern of one-race schooling at the time

of trial, the court found that the ‘“‘great majority of

all schools” in Dayton are ‘‘racially imbalanced, con-

sistent with the black-white population and geographi-

eal distribution thereof as shown by the 1970 census.”

A5." With the exception of recent affirmative efforts

nel

88 The court apparently uses the terms ‘‘racial imbalance’’ and

‘racial balance’’ to mean, respectively, segregated and not segre-

gated. In the ‘‘racial imbalance’’ part of its opinion, the court

directs the reader’s attention to attached Appendix A, which lists

each Dayton school and its 1971-72 racial composition. The court

summarizes the elementary school situation in these words: ‘‘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 60.2% black.’’ A.15. It seems fairly clear

that the judge is referring to the 90%-plus one-race schools when

he says that the ‘‘great majority . . . are racially imbalanced.

A.5. And it is completely clear that the court does not equate ‘‘ra-

cial balance’’ with the system-wide black/white ratio, for no school

to desegregate Patterson Co-Op high school, ‘‘no ef-

fort has been made by the school board of Dayton to

balance by race the student population at any particu-

lar school.’’ A.5.

The court generally found the Board’s practices

concerning school construction and site selection, at-

tendance boundaries and grade structure reorganiza-

tion, and transfers to be ‘“‘rational . . . and within the

sound discretion of the Board”’ (A.5.), ‘‘neither segre-

gative nor integrative’? (A.6), ‘‘neutral’? (A.7), or

not ‘‘unfairly operated.”? A.9. Conceding that the

Board could have exercised its discretion differently

to choose among available alternatives which might

have integrated the schools (A.7), the court nonethe-

less found that ‘‘plaintiffs have failed in their burden

of showing that the defendant board exercised these

options in an improper fashion.’’ A.7. The court also

found: (1) unspecified ‘errors in board planning”’

apparently intensifying school segregation (A.7); (2)

a pattern of construction of new elementary schools

and additions in ‘‘white neighborhoods” and ‘black

neighborhoods’? which opened and remain ‘‘predomi-

nantly’? one-race (id); (3) the construction and loea-

tion of new high schools ‘‘which followed the pattern

of construction of elementary schools in that sites

were selected away from the center of the city’’ in one-

race areas (A.7); (4) a January 4, 1971 reorganiza-

tion of middle schools having ‘‘neither segregative

nor integrative effect’? (A.6); and (5) a ‘‘free trans-

fer’’ program which failed even to ‘‘reduce somewhat

has a pupil population correlating with that figure (which is about

43% black for the 1971-72 year). If ‘‘raeial balance’’ meant that,

the court would have said every school (rather than just the ‘‘great

majority’’) is ‘‘racially imbalanced.”’

racial imbalance and remove community perception of

‘black’ and ‘white’ schools.” A.9. (See Appendix A,

attached here, for a summary of the evidence with

respect to these practices.)

With respect to optional zones, the court discussed

the record with similar imprecision, but found, on

balance, that plaintiffs had met the burden of proof

imposed by the court. The court found that ‘‘many

{optional zones] were created for the convenience of

parents. There has been evidence that at times this last

concept embraced desires motivated by racial consid-

erations.” A.8. “‘[R]acial significance’? was attached

to the creation of Westwood-Jackson, Roosevelt-Col-

onel White, and Fairview-Roth. Id. Without other-

wise making findings as to the role of optional zones

over time, the court found 11 current zones (7 at the

elementary and 4 at the high school level). Although

the elementary optional zones do not ‘‘today have any

significant potential effects in terms of increased racial

separation, the same cannot be said of the high school

optional zones.”’ Id.

With respect to the 1972 Board’s rescission of the

1971 Board’s desegregation program, the court re-

jected _a ‘“‘parliamentary rules’? argument by the

Board and concluded that the 1972 Board’s action

‘‘was not in the nature of a reconsideration but in-

stead was a rescission. of the previous action.”’ A.11.

As such, it ‘‘constituted an independent violation of

the Equal Protection Clause rights enjoyed by the

black minority of Dayton.’’ Id.

Turning to the developing law applicable to chal-

lenges to non-statutory racial segregation, the court

: . - . : P sé

coneeded its confusion and spoke of this case as ‘*‘a

square peg for the round holes” of southern cases and

‘‘a round peg for the square holes of’’ northern eases.

A.11-12. The court concluded (A.12):

What we have found are racially imbalanced

schools, optional attendance zones, and recent

Board action, which are cumulatively in violation

of the Equal Protection Clause. We hold that the

totality of these findings require intervention by

this Court under the mandate of Brown v. Board

of Education .... 7

The court further noted that optional attendance

zones are totally inconsistent with ‘‘the neighborhood

school concept.’ A.12-13.

‘Without secking to calibrate the degree of segre-

gation that inheres in individual policies of the

Board,” the court directed the Board to submit a plan

whieh would (1) abolish all presently remaining op-

tional attendance zones, (2) restate the Freedom of

Enrollment policy so that ‘‘no student of a minority

race may be denied attendance at any high school in

the Dayton Public School System and so that transfers

for purpose of improving racial balance take prece-

dence over curriculum transfers,’ (3) ‘‘[m]aintain

faculty assignment policies that will reflect in each

school the approximate ratio of black to white faculty

throughout the district,’ and (4) ‘‘[e]stablish hiring

policies that will enable the clerical and maintenance

personnel hired by the school board of Dayton to ap-

proximate the proportion of black-to-white ratio of

the Dayton School District.” A.13 These four specific

criteria were deemed ‘‘minimum”’ aspects of the plan

which, in addition, ‘‘shall in all other respects con-

form to the requirements of law. Swann v. Charlotte-

Mecklenberg Board of Education, 402 U.S. 1 (1971);

AA te ae LIM»

Davis v. Board of School Commissioners of Mobile

County, Ala., 402 U.S. 33 (1971).”’ A.13-14.

On March 29, 1973 the Dayton Board submitted a

purported “plan’’ to the district court which re-

sponded to the four specifics of the district court’s or-

der but went no further in the way of pupil desegrega-

tion.* In essence the plan submitted by the Board

merely expanded the ‘‘free choice’’ options which the

district court had previously found (A.9-10) to be of

negligible impact on the segregated pattern of pupil

assignments. The Board refused to submit to the court

an alternative plan of actual desegregation supported

by the Superintendent and three of the seven Board

members. (A plan was also proposed by the Dayton

Classroom Teachers Association.) Plaintiffs filed ob-

jections to the plan submitted by the Board majority,

and requested adoption of the more effective plan pre-

pared by the Superintendent and the Board minority.

On July 13, 1973, the district court, without a hear-

ing, entered an order approving, with one modifica-

iton, the relevant portions of the plan submitted by

the Board majority, although the court expressed its

‘disappointment at the limited nature’’ of the remain-

ing aspects of the plan. A.27. Because this Court’s

**The plan submitted by the Board majority contained diseus-

sion of seven points in addition to the four particular requirements

of the district court’s opinion, These points related to “cultural

exchanges,’’ ‘‘control and learning centers,’’ “musical stereopti-

cons,’’ and the like, all having nothing to do with actual school

desegregation but requiring considerable busing and expense. A.

131-144.

35 The district court modified the Board's Freedom of Enrollment

proposal with respect to high school students. The court-ordered

modification did not impose ‘‘majority to minority’’ transfers,

which limit transfers to those that have desegregative impact.

decision in Keyes v. School District No. 1, 413 U.S. 189

(1973), had intervened between the district court’s

February decision on violation and its July remedial

order, the court apparently felt constrained to make

some additional points about the scope of the Board’s

constitutional obligation. Relying on the dissenting

part of Mr. Justice Powell’s separate opinion in

Keyes, the district judge listed a number of non-segre-

gative aspects of the Board’s current operation.” The

court concluded (A.30) :

Ilowever, there has been evidence which indi-

cates that the affirmative promotion of integra-

tion through these essential functions of ‘the

Boayd 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 of 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. All of such actions must henceforth be ex-

amined for their ‘‘integration impact.”’

Rather, the court modification provided ‘‘free choice’’ to all high

school students of any high school, subject to priorities for those

presently enrolled in a school and to space limitations, A.27-28.

** The court found, inter alia, that ‘‘{t]here is presently no evi-

dence of a failure of equality of facilities, instructions and ecur-

ricula 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.’’ A.30. This

holding was surprising, as the district court had refused to allow

any party to introduce proof concerning inequalities in these par-

ticulars. R.I, 419-25, 1970, 1903. (HEW, in its 1969 Title VI non-

compliance letter to the Dayton Board, found ‘‘that students at

Roosevelt High School are not afforded the same educational op-

portunity as other students in [the] system.’’ A.416. )

ee a ee ee ee es —

re te hw ek. 6 SE

a A CE en

The court ordered ‘‘a retention of jurisdiction while

a reasonable period of time is given to the School

Board for this purpose.’’ A.31. The court, however, did

not consider or apply the standards established by the

Court in Keyes to determine the scope of the Board’s

constitutional obligation or in evaluating the evidence

of violation or the adequacy of proposed plans.

Plaintiffs’ appealed and the Board cross-appealed

to the United States Court of Appeals for the Sixth

Circuit.

F. Brinkman I

On August 20, 1974 the Court of Appeals for the

Sixth Circuit filed its opinion on plaintiffs’ appeal

and the Board’s cross-appeal. A.32-69. Upon a careful

review of the portions of the record placed in dispute,

the court of appeals affirmed the district court’s con-

clusion that there had been a cumulative violation of

the Equal Protection Clause, based on the long history

of unabated one-race schooling, the extensive use of

optional zones to promote segregation, and the pur-

poseful rescission of a system-wide program of de-

segregation. Moreover, because the Board did not con-

test the pre-Brown violation, the court found it un-

necessary to review the evidence and district court

findings in this regard. A.56.

The court also found it unnecessary to decide

whether the 1972 Board’s rescission of the 1971

Board’s desegregation plan was an independent vio-

lation of plaintiffs’ constitutional rights. Decision on

this issue was unnecessary in the court’s view because

of its conclusion that at the relevant time the Board

was under an affirmative constitutional duty to de-

segregate; consequently, a rescission of affirmative

action taken in accordance with that constitutional

obligation served to compound the initial constitu-

tional violation. A.55-56. The court of appeals also

concluded that prior to Brown the Dayton Board’s

faculty-assignment practices were carried out pursu-

ant to ‘‘an explicit segregation policy of the Board,”

and that the Board *‘effectively continued in practice

the racial assignment of faculty through the 1970-71

school year.’’ A.50; see also note 14, supra. With re-

spect to site selection and school construction, grade

structure reorganization, pupil transfers and trans-

portation, and current faculty practices, the court of

appeals detailed some of the considerable evidence

suppoyting plaintiffs’ claim that the Board’s practices

in these areas also constituted independent constitu-

tional violations. A.61-66. The appellate court, how-

ever, reserved decision on the ‘‘serious question with

respect to whether the District Judge’s failure to in-

clude these . . . practices within the cumulative viola-

tion’’ (A.66-67) was supportable because of its view

that the Board otherwise was under an affirmative

obligation to desegregate. A.67.

The court found the ‘free choice’? remedy ordered

by the district court ineffective and, therefore, consti-

tutionally inadequate ‘‘considering the scope of the

cumulative violations’; the case was accordingly re-

manded with directions that a plan of desegregation

be developed consistent with the remedial guidelines

of Keyes and Swann. A.67-68. Quoting from Keyes,

413 U.S. at 200, the court concluded (A.68) :

Once the plaintiffs-appellants have shown that

state-imposed segregation existed at the time of

Brown (or any point thereafter), school authori-

ties ‘‘automatically assume an affirmative duty

ee) ee ee ene

eh cant Pad. ts

seems ws

.. . to eliminate from the public schools within

their school system ‘all vestiges of state-imposed

school segregation.’’’ . . . When such a showing

has been made, ‘‘racially neutral’? plans which

fail to counteract the continuing effects of past

school segregation are inadequate.

Finally, the court rejected all other ‘contentions of

the parties contrary to the conclusions reached in [its ]

opinion ...’’ A.69.

G. Remedial Proceedings.

Following the Sixth Circuit’s remand in Brinkman

I, the district court entered an order on January 7,

1975 directing the Dayton Board and any other inter-

ested parties to submit proposed plans of desegrega-

tion. A.70-72. The Board submitted a proposed plan

(A.144-54), and plaintiffs also submitted a plan pre-

pared by Dr. Gordon Foster, who had earlier prepared

a plan of desegregation for the Board pursant to its

desegregation resolutions adopted in December 1971.

See page 34, supra. The plan submitted by the Board

was essentially a modification of the prior plan which

had been found inadequate by the court of appeals in

Brinkman I. Basically, it was a modified ‘‘freedom of

choice’? plan calling for the establishment in some

schools of programs not offered in others. These spe-

cial-program schools would be called ‘‘magnet schools

and ‘‘learning centers.’’ The programs offered were

to be designed to attract a limited bi-racial enrollment

on a voluntary and, in the main, part-time basis. See

A.144-54. At best, the Board’s ‘‘curriculum plan

would have entailed actual full-time desegregation for

only about 3,000 students, and another 3,400 students

were to be affected only on a part-time basis. A.296-98.

Plaintiffs plan, in contrast, was a plan of actual sys-

tem-wide desegregation. See A.298-99,

On March 10, 1975, following a hearing on

held February 17, 19, and 20, 1975, the to =

entered its order (A.73-84). The court found that

[p]laintiffs’ plan is a comprehensive one; it was

carefully prepared and well-presented.”’ A178, But the

court rejected plaintiffs’ plan (A.79); and adopted in-

stead, on a provisional basis, the plan submitted by

defendants. A.79-81. The court reasoned that two in-

tervening events ‘‘may well have changed both ‘the

nature of the violation’ and the ‘scope of the rem-

edy.’ * A.76. The first of these ‘‘events’”’ was the de-

cisior in Higgins v. Board of Education of the City

of Grand Rapids, 508 F.2d 779 (6th Cir. 1974), a case

in which the Sixth Circuit had affirmed a district court

judgment that pupils had not been unconstitutionally

segregated on the basis of race. The second ‘“‘event’’

was the Equal Educational Opportunities Act of 1974

20 U.S.C. §§ 1701 et seq. The court determined that

this Act required rejection of plaintiffs’ plan. A.79

Accordingly, the court adopted the Board’s plan on

a provisional basis, although it recognized the very

limited nature of the Board’s proposals, as well as its

failure to consider more promising alternative me-

thods of accomplishing desegregation. The Board was

directed to study the feasibility of adopting more si ;

nificant measures for the following school year. A 81

The court certified its order for appeal pursuant to

the provisions of 28 U.S.C. § 1292(b), because of its

belief that its holdings with respect to the Equal Edu-

cational Opportunities Act “involve a controllin

question of law as to which there is subutuatiod

grounds for a difference of opinion. . . .”’ A.84.

asolprondlansts. ei

SC tO ¥ satwed

Plaintiffs immediately appealed, moving for sum-

mary reversal and requesting specific remedial direc-

tives from the court of appeals. On June 24, 1975, the

court of appeals issued its opinion in Brinkman II.

A.89-96. The court reiterated its previous opinion in

Brinkman I to the effect that the Board was guilty of

‘“Ts]egregative acts and practices . . . both before and

after the decision of the Supreme Court in Brown...

[which] have continued down to the present time.”’

A.89-90. The court added: ‘“‘Although the phrase ‘de

jure’ does not appear in our former opinion, the mean-

ing of that decision is that the Dayton school system

has been and is guilty of de jure segregation prac-

tices.” A.90. Upon analysis of the Board’s plan as

approved by the district court, the court of appeals

determined that the plan did not conform to the man-

date in Brinkman I. A.91. The court recognized that

the Board’s plan ‘‘contains some significant curricular

innovations and that it would be a step toward inte-

gration of the Dayton school system,’’ but that it ‘‘does

not even purport to dismantle Dayton’s one-race

schools other than Miami Chapel and Roosevelt High

School, and even if the magnet plans are successful,

the vast majority of one-race schools will remain iden-

tifiable as such.’’ A.93. The court of appeals rejected

the district court’s view that the two intervening

‘‘events’’—the Sixth Cireuit’s decison in Higgins and

the Equal Educational Opportunities Act—supported

the limited remedy ordered. The court construed the

Act, in accordance with the terms of 20 U.S.C. § 1702

(b), ‘‘as not limiting either the nature or the scope of

the remedy for constitutional violations in the instant

ease.”’ A.95. With respect to the second ‘‘event,”’ the

eourt said: “‘There could be no possible merit in the

contention that the opinion of this court in Higgins,

relating to the school system of Grand Rapids, Michi-

gan, altered in any way the nature of the cumulative

violations described in our former opinion in the

present case or the scope of the constitutional remedy

required by this court on the remand which we directed

in that opinion.’’ A.95, Indicating that it would be in-

clined to grant plaintiffs’ motion for summary re-

versal but for the difficulties of developing a ‘‘com-

prehensive plan’’ for the 1975-76 school year sched-

uled to begin in September, the court remanded the

case to the district court with directions (1) to de-

segregate as many one-race schools as possible by

September, 1975, (2) to enjoin the Board from re-

assigning the Miami Chapel black students to other

all-black schools, and (3) to ‘‘adopt a system-wide plan

for the 1976-77 school year that will conform to the

previous mandate of this court and to the decisions of

the Supreme Court in Keyes and Swann.’ A.96. The

court of appeals directed that its mandate issue forth-

with, and the Board’s application for a writ of cer-

tiorari was subsequently denied by this Court. 423

U.S. 1000 (1975).

Upon the remand in Brinkman IT, the district court

appointed an expert, Dr. Charles Glatt, to examine the

system and make desegregation recommendations. Dr.

Glatt was murdered in the midst of his work. There-

after, both plaintiffs and the Board presented plans

to the district court, pursuant to its order of Novem-

ber 5, 1975. The Board’s plan had been prepared by a

team of experts appointed by the Board. The Board

had voted to submit the plan to the court, but, by vote

of 4-3, the Board had refused to approve the plan.

A.305, The plan prepared by the Board’s experts uti-

lized diverse choice, zoning and curriculum differentia-

;

tion mechanisms for desegregation, poe the plan did

ot specify actual pupil assignments, and no provision

re sc oenieitiia waa included. R. ILL. 38-40, 52, 6i-

69, 101, 136-37, 149-51, 206-20, 252-53. Both plaintiffs

experts and the Board’s experts were in agreement,

however, that approximately 15,000 pupils would have

to be transported under either the Board’s plan or

plaintiffs’ plan, and that, because of Dayton’s compact

nature and the efficiency of its thoroughfares, com:

plete, effective desegregation could be accomplished

without presenting any threat to the health, safety or

education of schoolchildren due to factors of time,

distance and amount of transportation. A.304; RTH.

924: “A Jesegregation Plan for the Dayton, Ohio

Public Schools,’ at 127, 138 (Dee. 2, 1975) [the

Board’s plan].

Following a December 8, 1975 hearing, the district

eourt entered an order on December 29, 1975 on the

plans submitted. A.99-106, After summarizing the na- ”

ture of the plans, the limited nature of federal judicial

intervention, and the Board’s broad discretion in mat-

ters of administrative and education policy (A.100-

02), the court made the following statement (A.102) :

In contrast to the foregoing, it is a constitu-

tional right enforceable in the federal courts that

students, irrespective of race or residence, shall

share equally all facilities of a school system, both

the superior and the inferior.

The only feasible method of sharing requires

a balancing in each school between black and

white students in a ratio approximating the sys-

tem-wide balance. Insofar as either plan will re-

sult in an acceptable redistribution, such plan

meets the constitutional limitations set forth in

both the Swann and Keyes cases.

The defendants may adopt their own plan, may

adopt the plaintiffs’ plan, may combine the two,

or any parts thereof, provided that each school

in the school district as of September 1, 1976, is

desegregated as defined herein.

Observing that the system was 48% black and 52°

white, the court stated that any school would be

deemed desegregated if it ‘‘reflectf{ed] this district

ratio plus or minus 15%.’’ A.103. The court ordered

the Board to implement a plan seeking to achieve for

each school a ‘pupil population approaching the dis-

trict percentage, but deviating no more than 15%,

plus or minus.’’ 7d. The court set forth two excep-

tionsto this requirement. First, it allowed all students

already enrolled in high schools to remain at their

present school through graduation because of the im-

portance the court attached to high school “loyalty.”

Id. Second, citing Swann, 402 U.S. at 24, the court

held that “‘where a specific school should deviate fur-

ther from the foregoing percentages by reason of geo-

graphic location, the Court will consider such in-

stances on a school by-school basis.’ A.104. The court

then appointed Dr. John A, Finger (who had been

the district court’s expert in Swann) to act as Master

pursuant to Rule 53, Fep. R. Crv. P., to work out the

details of a plan with Dayton school officials. The

following guidelines were set for the Master with re-

spect to elementary students (A.104) :

1. Students may attend neighborhood walk-in

schools in those neighborhoods where the schools

already have the approved ratio;

2. Students should be transported to the nearest

available school ;

_ detteoeks pein,

3. No student should be transported for a period

of time exceeding (20) minutes, or two (2) miles,

whichever is shorter.

The court also appointed a citizens board to monitor

the plan for a period of at least three years. A.105.

The court concluded its order with four conclusions of

law: (1) “fA school system composed of schools where

the attendance meets the district ratio plus or minus

15% is a desegregated system as contemplated in

Keyes ... and Swann...” (A.105-06) ; (2) “*Varia-

tions from the foregoing may be permitted in excep-

tional circumstances without destroying the desegre-

gation of such system’’ ( A.106) ; (3) So long as such

a desegregated system is established, ‘*Te]ducational

techniques, experimental schools and expanded parent

choice are not matters relating to constitutional depri-

vations. . .”’ (id.); and (4) the Board ‘“‘must provide

adequate transportation for all students affected by re-

assignment to comply with this Order.”’ Jd. A judg-

ment in conformity with this order was entered on the

same day. A.107-109.

On March 15, 1976 the Master submitted his report.

A.157-75. The Master recommended that elementary

schools be desegregated primarily on the basis of the

common technique of pairing schools. With respect

to high schools, the Master relied on a program of

choices and random assignments limited by racial

guidelines. Under his plan, the Master estimated that

the maximum distance of travel for any student would

be somewhat in excess of 5 miles, but that the longest

travel time ‘“‘should not exceed 20 minutes.”’’ A.162.

The district court conducted a hearing on the Mas-

ter’s report on Mareh 22 and 23, 1976. At this hearing,

the Dayton Board requested several modifications of

the Master’s plan: to be allowed to reassign pupils to

paired schools in advance in the Spring by the central

administration, rather than by the school principals

on the first day of the 1976-77 school year ; to be -

lowed to exchange paired schools (with no transfer of

teachers) on an annual rather than semi-annual basis;

to be allowed to assign high school students on -

graphic-zone rather than choice and pees

ment bases; and to phase in the elementary plan over

three years (including withholding some 8 schools

from the desegregation plan for the 1976-77 year)

RIT. 288-89. The Board presented no argument ion

timeny, or any other evidence that any school or child

should be excluded from the plan because of an | e0

graphic location or claim of excessive distance ed ti

involved in reassignment and transportation. | ~

On March 23, 1976 the district court entered its final

order approving the proposed desegregation plan of

the Master, with modifications, and directing the Day-

ton Board to implement the plan for the 1976-77

school year. A.110-13. The court gave the Board the

discretion either to implement the Master’s report or

the Board’s proposed modifications, except insofar as

the Board sought a three-year phase-in of the plan at

the elementary level. A.110-11. The district ont ae

expressed its willingness to consider proposed modifi-

cations to the plan at any time from any party. A.112

A judgment was entered on March 25, 1976 in assted-

ance with the March 23 order. A.114-16. Thereafter,

the Dayton Board sought six additional modifications

which, with one exception (concerning the exclusion

of eighth graders from the plan), the district court ap-

proved by an order of May 14, 1976. A.117. be

~ Oba

The Dayton Board then appealed, and their appeal

was heard by the Sixth Circuit on an expedited basis.

The court of appeals issued its decision in Brinkman

ITI on July 26, 1976. A.118-23. The court of appeals

noted that although its decision in Brinkman TI had

ordered system-wide desegregation, the Board

proposed no plan to achieve this mandate and

made no showing of the existence of conditions

related to the topography of the Dayton area, lo-

eation of natural or artificial barriers, geographic

isolation or similar considerations which might

militate against an order requiring cross-district

transportation of pupils. [A.121.]

As to the Board’s argument that the district court’s

guiding standard that each school should be within the

district-wide racial ratio, plus or minus 15%, the

court of appeals said (A.121-22) :

Rather than establishing a fixed mathematical re-

quirement as the Board claims it does, this for-

mula provides a flexible basis of pupil assignment

similar to that approved by the Supreme Court in

Swann, supra. The flexibility of the district

court’s judgment is further illustrated by the ex-

emption of two entire grades of high school stu-

dents, the provision for variations from the plus

or minus 15% requirement ‘in exceptional cir-

cumstances’? and the options granted the Board

which permitted it to choose alternate methods of

achieving desegregation rather than being re-

quired to follow in every detail the plan submitted

by the Master. We view the use of mathematical

ratios in this case as no more than ‘‘a useful start-

ing point’’ in shaping a remedy for past discrimi-

nation. Swann, supra, 402 U.S. at 25.

As to the language in the district court’s order of

December 29, 1975 pertaining to a constitutional right

of all students to “share equally all facilities of a

school system, both the superior and the inferior,’ the

court of appeals said (A.122) :

When considered out of context and read liter-

ally the quoted language does appear to create a

right which the federal courts have never recog-

nized. However, in the context of the order this

statement appears to be nothing more than an

affirmation that a system-wide desegregation plan

must necessarily involve all facilities of a school

system and that pupil assignments will be made

as required to eliminate the vestiges of past dis-

crimination without regard to the comparative

quality of the various facilities. Be that as it may,

the quoted language does not appear in the judg-

>» . . . . .

ment, which is the instrument this court reviews

on appeal.

Finally, the court of appeals dealt with an argument

raised by the Board for the first time at oral argu-

ment: that the district court’s order required periodic

changes in the Dayton plan to maintain a fixed racial

balance in perpetuity in violation of this Court’s inter-

vening decision in Pasadena City Board of Education

v. Spangler, 427 U.S. 424 (1976). The court found that

this contention was completely without merit: “The

short answer to this argument is that the judgment

directs no changes after the 1976-77 school year.”’

A.123. The court noted that the plan ordered by the

district court ‘‘established the first constitutionally

sufficient desegregation plan for the Dayton system.

If adjustments to this plan are sought by any of the

parties in future years the district court will neces-

sarily consider the limitations of Spangler in dealing

with such requests.’ Jd.

eg eee

Thereafter, both the court of appeals and Mr. Jus-

tice Stewart, as Circuit Justice, denied the Board s

applications for a stay of the judgment in Brinkman

IIT, and the Board implemented the plan at the start

of the 1976-77 school year. On January 17, 1977, this

Court granted the Board's petition for writ of cer-

tiorari.

“>

Y OF ARGUMENT

1. The linchpin of petitioners’ case is their claim

that the Dayton Board has never operated a racially

dual school system as defined by this Court’s decisions.

If that claim is mistaken, their case falls. As set forth

in the Statement of the Case, supra, there can be no

doubt that a basically dual system existed at the time

of Brown v. Board of Educ., 347 U.S. 483 ( 1954), and

was never dismantled until the federal-court interven-

tion here. Thus, a district-wide desegregation plan was

constitutionally required under Swann V. Charlotte-

Mecklenburg Board of Educ., 402 U.S. ( 1971), to dis-

mantle the dual system which existed in Dayton at the

time of Brown and which continued to flourish there-

after. See pages 58-71, infra.

29. Petitioners’ case also falls on an alternative

ground: the wide-spread de jure segregation extant at

the time of Brown, coupled with racially diserimima-

tory faculty and pupil assignment practices there-

after and the rescission of the Board’s single under-

taking of its affirmative obligations, constituted a

prima facie case of system-wide intentional segrega-

tion which the Board has failed to rebut. The plan

ordered below was therefore mandated by the ‘‘all-out

desegregation’? commands of Keyes v. School Dist. No.

1, 413 U.S. 189 (1973), and Swann. See pages 72-85,

infra.

3. The system-wide remedy already in place in the

Dayton publie schools is fair and equitable and is de-

signed to remedy the constitutional violation. It is a

plan of actual desegregation under Swann and Keyes.

The plan is not “racial balance,” nor does it require

annual adjustments contrary to Swann or Pasadena

City Board of Educ. v. Spangler, 427 U.S. 424 (1976).

Petitioners’ further claim that the plan will inevitably

result in resegregation is not supported by the record

and is irrelevant under this Court’s decisions in Brown

v. Board of Educ., 349 U.S, 294 (1955) [‘* Brown IT},

Cooper Vv. Aaron, 358 U.S. 1 (1958), and Monroe vy.

Board of Comm’rs, 391 U.S. 450 (1968). See pages

89-94, infra.

4. Finally, petitioners’ attack upon plaintiffs’ status

to prosecute this case is unwarranted. Plaintiffs in-

clude black and white pupils in the Dayton public

schools who have suffered from petitioners’ prior de

jure segregated system of schooling and are now for

the first time attending schools in transition to a ra-

cially unitary system. Under Spangler, plaintiff's

stake in this controversy is real and their standing

cannot be questioned. See pages 95-101, infra.

ARGUMENT

Before this Court, petitioners claim that the court of

> ea

this argument the Board relies upon imprecise lan-

guage in the various opinions and orders of the district

court which have been superseded by the judgments

of the court of appeals. Then, by interweaving ex-

cerpts from this free-wheeling language with equally

selective citations to the extensive evidentiary record

and even less-frequent references to the three deci-

sions of the court of appeals, petitioners assert that

the gaps between the system-wide remedy ordered he-

low and any unconstitutional conduct on their part is

so great that the conclusion is inescapable that the

court of appeals has defined racial imbalance as a per

se violation of plaintiffs’ substantive constitutional

rights. See Pet. Br. at 15-30.

We agree with petitioners that there are noticeable

differences in pitch between the decisions of the court

of appeals and those of the district court; and that the

district judge did all he could on the first remand to

avoid compliance with the court of appeals’ mandate

in Brinkman I to remedy the violation. Cf. Pet. Br. at

15-16, 28. We also agree that there are interstices in

the decisions and orders entered below. But we find it

considerably easier to fill in these gaps than do peti-

tioners. The settled portions of the record bring the

remedy flush with the constitutional violation and make

constitutionally unassailable the determination below

that plaintiffs are entitled to system-wide relief from

the extensive de jure segregation of the Dayton publie

schools.

appeals has acted out of a desire to impose upon the

Dayton school district system-wide racial balance as a

matter of substantive constitutional right. To support

Petitioners necessarily concede that an ‘‘affirmatiy

duty arises to dismantle and to eliminate the identifi.

ability of one-race schools . .. [where there is} a fin L

ing of a dual system mandated by state statute - '

dual system predicated upon evidence establishing

state-imposed segregation in a substantial portion of

the school district.’’ Pet. Br. at 15. We concede that

there was no Ohio statute mandating a dual system in

Dayton after 1887. But there has been a dual sehool

system in Dayton spanning two-thirds of ‘anton

albeit one created and maintained by petitioners id

their predecessors in direct defiance of state law rs

In Green Vv. County School Board, 391 U.S. 430

(1968), and companion cases,” this Count refined t] ,

command of Brown 11 that school districts aieatien

statutory dual systems must ‘effectuate a imeneiiteen

to a racially non-diseriminatory school system ' 349

US. at 301. Green emphasized that although the Court

in Brown IT had recognized that the transition would

not be easy, ‘‘[s]ehool boards... then operating stat

compelled dual systems were nevertheless ie

charged with the affirmative duty to take cain

steps might be necessary to convert to a unitary systen

in which racial discrimination would be eliminated r t

and branch.’’ 391 U.S. at 437-38. Finally, in Swan “ j

Charlotte-Mecklenburg Board of Education, 402 U g

* Raney v. Board of Educ., 391 U

Board of Comm'rs, 391 U.S. 450 (1968). oe oes ees

- ee

1 (1971), and companion cases,” the Court held that

the command “to dismantle dual school systems” (id.

at 22) entails making ‘‘every effort to achieve the

greatest possible degree of actual desegregation. ...

[and] warrants a presumption against schools that are

substantially disproportionate in their racial compo-

sition.’’ Td. at 26.

In Keyes v. School District No. 1, 418 U.S. 189

(1973), the Court for the first time addressed the con-

stitutional principles applicable to school segregation

in the so-called “northern” context in which state law

did not: mandate racial segregation at the time of

Brown. Because of the absence of state laws mandat-

ing school segregation in this context, the Court deter-

mined that plaintiffs challenging such school segrega-

tion under the Fourteenth Amendment “must prove

not only that segregated schooling exists but also that

it was brought about or maintained by intentional state

action.” Id. at 198. In other words, plaintiffs must

prove “‘de jure segregation’? which is differentiated

from “adventitious” segregation by official “* purpose

or intent to segregate.”’ Id. 208 (emphasis in original).

Although the initial burden of proof in such eases is

therefore on the plaintiffs, the Court also held (1d. at

201) :

[ W Jhere plaintiffs prove that the school author-

ities have carried out a systematic program of seg-

regation affecting a substantial portion of the stu-

dents, schools, teachers, and facilities within the

school system, it is only common sense to conclude

that there exists a predicate for a finding of the

existence of a dual school system.

38 Davis v. Board of School Comm’rs, 402 U.S. 33 (1971); Me-

Daniel v. Barresi, 402 U.S. 39 (1971) ; North Carolina State Board

of Educ. v. Swann, 402 U.S. 43 (1971).

In Keyes the Court reviewed lower cou i

ms rt findi

—~ eh ame = eae ro respect to the Park

re he distriet, hac n ‘*‘found guilty

ae ogre ty gery poliey at be ~

’ PO, ° 34.090 of Denver’

— | Aaa including indies "et re i

ementary pupils, over two-thirds o juni

— papils, and over two-fifths 2 ‘ae Me ee

a peal “% ae ae h a to the ote 4

ystem, however, the lower courts in Keye

had found no such deliberate segregative ie oo

practices, This Court mevattindens enamine @ar “

mess coo ogee of segregating blacks

le pertion of a school district have a “reciproe

effect on the remainder of the district: a ™

sense dictates the conclusion that racially inspi ; F

school board actions have an impact beyond the a

rr porn schools that are the subjects of those te ‘

. at 203; see also id. at 201-203. Consequently, a di ' l

system may be found to exist upon * proof of state

imposed segregation in a substantial portion of the

district. .. ."* Id. at 203. The Court held that the De

ver school district's ‘deliberate racial segregati ol

policy with respect to the Park Hill schools Fouahl be

sufficient to] constitute[] the entire Denver heey >.

tem a dual school system” (id. at 204), unle ‘the

school board could show ‘that Park Hil] mea he : "

arated from the rest of the Denver school distr 4 ; .

a separate, identifiable, and unrelated unit.”’ Id. at 205,

- = sree also noted that where such a *‘northern’”’

lal system is found, ‘tas in eases j )

i ses Involving statutor

dual systems, the school iti ciieaatins

] , the s authorities have an affi

is ne i alirmative

oy to effectuate a transition to a racially oni die-

criminatory school system.’”’ Jd., quoting Brown Hl

ee ee Seen

In determining whether school authorities have met

this ‘affirmative duty,” the Court explained one of

the reasons supporting the Swann presumption against

one-race schools in a system with such a history of

segregation (413 U.S. at 211):

a connection between past segregative acts and

present segregation may be present even when not

apparent and... close examination is required be-

fore concluding that the connection does not exist.

Intentional school segregation in the past may

have been a factor in creating a natural environ-

ment for the growth of further segregation.

A. A Dual System Existed In The Dayton Public Schools At

The Time Of Brown I.

The record in the instant case, which we have de-

tailed at pages 8-19, supra, conclusively shows the

existence of such a dual school system in Dayton at the

time of Brown. At that time, a substantial majority

of the black publie school children in Dayton attended

schools which had been deliberately created or con-

verted into schools for blacks only. And almost all black

teachers in the system were assigned to these blacks-

only schools pursuant to an explicit and degrading

policy of racial discrimination. This state-imposed sys-

tem of intentional segregation was probably as perfect

as it could have been without the aid of a state law

mandating absolute apartheid.” No showing was or

% As shown in the Statement, supra, the Board was operating

about 50 schools at the time of Brown. Of the 35,000 pupils in the

system, 19% were black. At least 54% of the system's black stu-

dents were attending four schools officially designated for blacks

only, and at least another 19% of the black pupils in the system

were attending five other schools that had just been effectively

converted (one had just been constructed) into black schools. Thus,

about three-fourths of all black pupils attended black schools, and

could have been made that the resulting segregation

was cabined_ ‘within a separate, identifiable or unre-

lated unit”? (Keyes, 413 U\S. at 205) of the Dayton

school district. Under K eyes, therefore, no conclusion

is permissible except that the Dayton Board was oper-

ating a dual system at the time of Brown.

Petitioners assert the contrary, however, as they

must; their entire brief is premised on the assertion

that there was never such a dual system in Dayton.

They cite no evidence to support this claim, and they

cite no finding by the court of appeals. Nor do they

refer to the district court's initial findings of fact and

conclusions of law to support the proposition that

nurkes or breaks their ease. Rather. they refer to lan-

guage written for the first time by the district court

on remand following the court of appeals’ reversal in

Brinkman I of the district court’s “free choice”’ rem-

edy. Pet.Br. at 10, 19, 30. This language of the district

court makes no reference to the controlling standards

announced in Keyes the year before. Its total content

is as follows (A.75, 77):

1. The State of Ohio does not now, nor has it

since 1887 mandated a dual system of publie edu-

cation. To the contrary, 84 Ohio Law 34, dated

February 22, 1887, specifically required a unitary

publie school system.

2. The defendant School Board of the City of

Dayton had engaged in activities which weve

segregative in effeet and which did impinge upon

the Constitutional rights of students in such S\s-

tem. At no time, however, did defendant maintain

a dual system of education.

83% of the system’s white pupils attended virtually all-white

schools. See pares 15-16, supra.

bP no

3. Overt evidence of such segregative tee

have been eliminated both by action of the ners

of Education and by previous Order of this Cou

ffee ‘eof may not.

but the effect there 5 fia

i 1andated dual system;

do not deal with a mandated « system ;

wets not deal with actions taken on a wae by:

school basis. We do deal with a system that has

the past permitted segregative practices to exist.

. , .

i por i s’ claim.

These words will not support petitioner ‘

We recognize that ‘[j]udges who are — =

higher court sometimes need oo [an] out : ae

that “[f]or this reason opinions on vy ery

occasionally be read with tolerance and um crag

ing. . . .'”” Petitioners, however, 7 _ pes

above-quoted language “establishes that the | Hl

district was not operating a mandated dual sy os -

proscribed in Brown I . fand was ve gul Bo

state-imposed segregation in a one a s - 0M

cant portion of the district wees ] et.Br. at 19." a

are several reasons why petitioners contention ” a

tenable, whether the district court s language Is view¢

with sympathy or critical analysis.

First, as previously noted, the district i ae

erences to the ‘dual system” were made at the ye

edial stage of this case following a reversal = ro

mand fer remedy by the court of appeals. The ry e

court made no such finding and offered no = on

clusion in its opinion issued immediately oe g

trial on the merits. Indeed, at that time a co ‘ =

not dispute the existence of a dual system at the time

(Stevens, J., dissenting in part).

Brown, Rather, the court’s first opinion simply dis-

counted the eggregious facts of pre-Brown diserimina-

tion because of its view that ‘‘[b]oth by -reason of the

substantial time that has elapsed and because these

practices have ceased, ... [they] will not necessarily

he deemed to be evidence of a continuing segregative

policy.”’ A.3. That off-hand disposition, of course,

turned ont to be a legal mistake in light of this Court’s

subsequently-issued opinion in Keyes, 413 U.S. at

210-11:

We reject any suggestion that remoteness in

time has any relevance to the issue of intent. If

the actions of school authorities were to any de-

“gree motivated by segregative intent and the seg-

regation resulting from those actions continues

to exist, the fact of remoteness in time certainly

does not make those actions any less ‘‘inten-

tional.’’

But even after the Keyes opinion heeame available,

the district court did not reassess this mistake; in-

stead, its only discussion of Keyes focused exclusively

upon the dissenting part of Justice Powell’s separate

opinion, A.29-31; see also note 36, supra, and accom-

panying text.

Second, the language of the district court reveals

no understanding of the term ‘‘dual system.’’ As

nearly as one can tell from reading the distriet court’s

‘dual system’’ references—indeed, from reading the

March 10, 1975 order in its entirety—the district court

believed that a dual svstem could not exist unless man-

dated by state law. This notion, of course, was also

expressly rejected in Keyes. 413 U.S. at 201-204.

Third, whatever the district court may have meant

in that order, it was squarely rejected by the subse-

a en 2

quent decision of the court of appeals in Brinkman IT.

In that opinion, the Sixth Cireuit, stating that it

would have granted plaintiffs’ motion for summary

reversal but for the time factor, held (A.90):

Although the phrase ‘‘de jure’’ does not appear

in our former opinion, the meaning of that deci-

sion is that the Dayton school system has been and

is guilty of de jure segregation practices. See

Keyes v. School District No. 1, 418 U.S. 189

(1973).

Petitioners’ reliance on the district court’s language

in the March 1975 order is therefore unfounded be-

‘ause that order has been displaced by the court of

appeals in accordance with this Court’s decision in

Keyes."

“’This ease does not call for further elaboration of the Keyes

‘‘nurpose of intent to segregate’’ standard, 413 U.S, at 208 (em-

phasis in original). See also Castaneda vy. Partida, 45 U.S.1..W.

4302 (U.S. March 23, 1977); Arlington Heights v. Metropolitan

Housing Dev. Corp. 45 US.LW. 4073 (US. Jan, Vi, 1977) ;

Washington v. Davis, 426 U.S, 229 (1976). While we do not under-

stand the standard to require us to accuse petitioners and their

predecessors of subjective racial malevolence, cf. Note, Reading

the Mind of the School Board: Segregative Intent and the De

Facto/De Jure Distinction, 86 Yaue L.J. 317 (1976), the record

here supports such an accusation. But we also think it clear that

inquiry into the subjective motive of the decision-maker is not re-

quired, As Justice Stewart has written, while he was a Sixth Cir-

euit Judge, in Clemons v. Board of Educ. of Hillsboro, 228 F.2d

853, 859 (6th Cir. 1956) :

The Board’s action was... not only entirely unsupported

by any color of state law, but in knowing violation of the Con-

stitution of the United States. The Board’s subjective purpose

was no doubt, and understandably, to reflect the ‘spirit of the

community’ and to avoid ‘racial problems,’ as testified by the

Superintendent of Schools, But the law of Ohio and the Con-

stitution of the United States simply left no room for the

Board’s action, whatever motives the Board may have had.

Similarly, the lower courts in the ‘‘northern’’ school cases decided

Fourth, and finally, the claim that the Dayton Board

never operated a dual school system is wrong as a mat-

ter of uncontestable fact. Although the court of ap-

peals can be eriticized to some extent for occasionally

adopting the loose approach to constitutional termi-

nology that pervades the district court’s opinions and

orders, it is at least unmistakably clear from the court

of appeals’ judgment that it thought plaintiffs had

proved their entitlement to a system-wide remedy. It

is that judgment which we appear here to defen!

Moreover, it is also plain from the court of appeals’

determination of facts in both Brinkman T and Brink-

man IT that it believed that plaintiffs had proved

intehtional segregation of system-wide magnitude.

While there may be some dispute as to whether the

court of appeals precisely anchored its holding on the

existence of a dual system at the time of Brown,"

in the post-Keyes era have generally not required plaintiffs to

prove subjective racial animus. See, e.g., Armstrong v. Brennan,

539 F.2d 625 (7th Cir. 1976); United States v. School Dist. of

Omaha, 521 F.2d 530 (8th Cir.), cert. denied, 423 U.S, 946 (1975) ;

Hart v. Community School Bd. of Educ., 512 F.2d 37 (2d Cir.

1975); Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 1974), cert.

denied, 421 U.S. 963 (1975); Oliver v. Michigan State Bd. of

Edue., 508 F.2d 178 (6th Cir. 1974), cert. denied, 421 U.S, 963

(1975); Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973), aff’d

in relevant part, 418 U.S. 717, 738 n.18 (1974). Rather, these cases

require only a showing of objective purpose or intent to segregate

* We believe, however, that a fair reading of the court of ap-

peals’ opinions shows its recognition of the existence of a de jure

segregated system at the time of Brown. First, in Brinkman J, the

court diseusses the ‘‘ Historical Background of School Segregation

in Dayton.’’ A.39-48. In this discussion, the court recounts that

in the face of Ohio law outlawing racially discriminatory school-

ing since at least 1888 and a 1926 Ohio Supreme Court decision

expressly informing the Dayton Board not to segregate schools on

the basis of race, the Dayton Board nonetheless, as found by the

_—

- Weare EY.

BIDS S20 metee ers.

the record irrefutably establishes such a system. See

note 39, supra.” Petitioners’ assertions of non-dualism

must accordingly be rejected.

district court, proceeded to do so, A.39-40. The court of appeals

did not elaborate on the evidence supporting this ‘‘historical deter-

mination’’ because ‘‘that is not challenged on appeal .. .’’ A.39.

Second, again in Brinkman I, the court of appeals notes the ‘‘basiec-

ally dual school system inherited at the time of Brown’’ and the

‘explicit segregation policy of the Board’’ prior to the 1951-52

school year and effective continuation thereafter, in discussing but

not deciding other violation issues on which it reserved decision.

A.56, Third, again in Brinkman T, the court of appeals, in describ-

ing the Board’s remedial obligations, held (A.68) :

Once the plaintiffs-appellants have shown that state-imposed

segregation existed at the time of Brown (or any point there-

after), school authorities ‘‘automatically assume an affirmative

duty .. . to eliminate from the publie schools within their

school system ‘all vestiges of state-imposed school segrega-

tion.’ ’’ Keyes, supra, 413 U.S. at 200.

Thus, the court of appeals, as required by Keyes, directly rejected,

on the facts of this case, the Dayton Board’s contention ‘‘that the

Brown IT rationale relied upon by the plaintiffs is only applicable

to those school districts where a dual system was compelled or

authorized by statute and has no applicability where a statutory

dual system has never existed.’’ Brief for Dayton Board of Edu-

eation, 6th Cir, Nos. 73-1974, -1975, at page 22. Finally in Brink-

man IT, the court of appeals reiterated this statement of the affirm-

ative obligation of a dual school system (A.90), and recounted the

long history of de jure segregation in the Dayton publie schools

(A.89-90).

** The existence of a dual system at the time of Brown thus need

not depend on the burden-shifting principles and evidentiary pre-

sumptions set forth in Keyes. See Argument II, infra. The exist-

ence of such a system is established as a matter of overwhelming

fact. We cannot conceive how the Dayton-style dua] system could

have lesser legal consequence than the Charlotte-Mecklenburg

type, for comparative example. There is a smal] factual difference,

of course, since in Dayton 75% of the students were directly seg-

regated by race in 1954, compared to 100% in Charlotte. To draw

from this factual difference a conclusion thet the two systems had

different long-run consequences, however, is to make finer socio-

aor.

When Brown I was decided on May 17, 1954, there-

fore, the Dayton Board became constitutionally ob-

liged to uproot the dual system it had spent at least

forty years creating in doubtful compliance with

Plessy v. Ferguson, 163 U.S. 537 (1896), and in open

defiance of equally-longstanding Ohio law. In the fif-

teen years following Brown the Dayton Board may

have complied in some respects with Plessy (see note

06, supra), but it ignored Brown.

B. The Board Never Complied With Brown II.

At this point petitioners’ case collapses in this Court

just as it did in the court of appeals. For once the ex-

isfence of a dual system at the time of Brown is estab-

lished, the remedial principles of Brown IT and its

progeny become applicable. See Keyes, supra, 413

U.S. at 200-203, 213-14: Brinkman 1, 503 F.2d at 704

(A.68); Brinkman IT, 518 F.2d at 854 (A.90). Under

these principles, the Board was obligated from the

time of Brown II to disestablish the basically dual

school system inherited. To fulfill that obligation, the

Board had to ‘‘make every effort to achieve the great-

est possible degree of actual desegregation ... [C]om-

pliance with its constitutional duty warrants a pre-

sumption against schools that are substantially dispro-

portionate in their racial composition.’’ Swann, supra,

402 U.S. at 26. Or, in the language of one of the Swann

logical distinetions than either social scientists or federal judges

are capable, or than the Fourteenth Amendment requires. Keyes,

413 U.S. at 200-03. And clearly the fact that this dual system was

ereated in defiance of, rather than being mandated by, state law

does not alter the constitutional consequences of the Dayton

Board’s intentional segregation at the time of Brown. Cf. Monroc

v. Pape, 365 U:S, 167, 194-201 (1961) (Harlan, J., coneurring).

ETS. pate es ede 2 TSS

companion cases, the Board was required to ‘‘make

every effort to achieve the greatest possible degree of

actual desegregation, taking into account the practi-

calities of the situation.’? Davis v. Board of School

Commissioners, supra, 402 U.S. at 37.

The Dayton Board has never contended that it has

met its affirmative obligation under these post-Brown

mandates. Nor could it. See A.5, 9-10.

Indeed, the courts below have found that instead of

‘‘eliminatfing] from the publie schools all vestiges of

state-imposed segregation’? (Swann, supra, 402 U.S.

at 15), petitioners and their predecessors aggravated

the constitutional violation by continuing to engage in

a number of racially discriminatory practices, lor

example, at least until federal intervention by IEW

in 1969, the Board persisted in the “racial assignment

of faculty’? (A.56) by assigning black teachers to

identifiably black schools and white teachers to identi-

fiably white schools. See pages 20-24, supra; Swann,

supra, 402 U.S. at 18; Keyes, supra, 413 U.S. at 209."

In addition, the Board, as found by the courts below,

intentionally employed optional attendance zones with

the segregative effect of identifying schools as black

** Petitioners appear to argue (Pet. Br. at 18) that the Board's

employment of substantial numbers of black teachers is evidence

of affirmative action. However, in school systems in almost every

state which had explicit segregation laws the proportionate num-

ber of black teachers was as substantial as in Dayton. And as in

Dayton, the ‘‘southern’’ districts also assigned pupils and teachers

to schools, in the words of Brinkman J, ‘‘pursuant to an explicit

segregation policy.’’? A.56, Thus, the presence of a substantial num-

ber of black teachers may in some cases be evidence of non-dis-

criminatory hiring; in others, it is the legacy of an explicitly dual

system of hiring and assigning teachers on a racial basis, as in

Dayton.

or white and allowing white children assigned to the

attendance areas for black schools to escape. See pages

24-30, supra. This device, reminiscent of the mainstay

of the ‘‘southern’’ style of dualism (see Green, supra,

391 U.S. at 432), was totally inconsistent with the

Board’s avowed purpose of operating under the

‘neighborhood school concept.’’ See, e.g., A.13.

Other Board action, at a minimum, was ineffective

in dismantling the dual system. For example, the

Board’s Freedom of Enrollment policy only perpetu-

ated the racial identity of schools. A.9-10; See note

28, supra. In practice, this policy operated as in-

effectively as the ‘‘freedom of choice’’ and ‘‘free trans-

fer’’ provisions condemned in Green and companion

cases as wholly inadequate desegregation techniques.

The Dayton policy was simply ‘‘a method [of]

achieving minimal disruption of the old pattern... .”’

Monroe y. Board of Commissioners, supra, 391 U.S.

at 458."

** While the district court declined to find segregative intent with

respect to several pupil-assignment practices, it did affirmatively

find that ‘‘no effort has been made by the school board of Dayton

to balance by race the student population at any particular school’’

(A.5), and that the ‘‘affirmative promotion of integration .. .

has not held an important place in the Board’s priorities.’’ A.30.

As previously noted (see note 33, supra), ‘‘ balance by race’’ and

‘racial imbalanee,’’ in the confusing usage employed by the dis-

trict court, mean, respectively unsegregated and segregated. The

district court’s findings that the Board’s zoning practices have had

‘“‘neither segregative nor integrative effect’’ (A.6), that the Board

used its site-selection and school-construction practices to locate

schools in one-race areas (A.7), and that the Freedom of Enroll-

ment policy was of negligible desegregative value (A.9), foreclose

any possibility that the Board has complied with Brown JJ. Al-

though these district court findings have been superseded by the

court of appeals’ decision in Brinkman I (A.61-67) reserving de-

cision on plaintiffs’ contention that the Board’s practices in these

;

}

Not until 1971 did the Board stand up to its sworn

duty and act decisively by adopting a system-wide

program of desegregation to comply with its duty to

convert to a unitary system. But this affirmative action

by the 1971 Board was quickly rescinded by the newly-

composed 1972 Board and the dual system reinstated.

See pages 30-35, supra. ‘This deliberate perpetuation

of the unconstitutional dual system can only have com-

pounded the harm of such a system.’’ Green, supra,

391 U.S. at 438.

Clearly and convincingly, plaintiffs have established

their entitlement to a system-wide remedy under this

Court’s controlling decisions in Brown II, Green,

Swann and Keyes.

areas constitute ‘“‘independent constitutional violation[s]’’ (Wash-

ington v. Davis, 426 U.S. 229, 243 (1976), quoting Wright v.

Council of City of Emporia, 407 U.S. 451, 459 (1972)), the law

of the case at least establishes that the Board never fulfilled its

affirmative obligations to dismantle the dual system. ‘‘ ‘Racially

neutral’ assignment plans,’’ are inadequate as a matter of law

when they ‘‘fail to counteract the continuing effects of past school

segregation resulting from discriminatory location of school sites

or distortion of school size in order to achieve or maintain an ar-

tificial racial separation.’’ Swann, supra, 402 U.S. at 28. The

Board’s pre-Brown practices presented just such a ‘‘ ‘loaded game

board,’ ’’ which required the Board in the post-Brown era to take

‘‘affirmative action in the form of remedial altering of attendance

zones . .. to achieve truly nondiscriminatory assignments.’’ /d.

Even if it be assumed arguendo that the Board was totally ‘‘color

blind’’ after Brown, that was plainly not enough, This Court has

denounced as wholly inadequate a policy that ‘‘exploits an appar-

ently neutral form to control school assignment plans by directing

that they be ‘eolor blind’; that requirement, against the back-

ground of segregation, would render illustory the promise of

Brown... .’’ North Carolina State Board of Educ. v. Swann, supra,

402 U.S. at 45-46. See also McDaniel v. Barresi, supra, 402 U.S. at

41.

Il. ALTERNATIVELY, PLAINTIFFS MADE OUT AN UNREBUTTED

PRIMA FACIE CASE OF SYSTEM-WIDE INTENTIONAL

SEGREGATION REQUIRING A SIMILAR REMEDY.

We think the foregoing argument is sufficient to

refute petitioners’ contention that plaintiffs are not

entitled to comprehensive relief. If for reasons not

apparent to us we are wrong, then we submit that

proper application of the burden-shifting principles

announced in Keyes is dispositive. This argument need

not be reached unless the Court determines that Brown

IT relief (1.e., as enunciated in Green and Swann) is

triggered only to eliminate the vestiges of that total

segregation mandated by express state laws existing

at the time of Brown I. In our view, that result would

balkanize the Fourteenth Amendment, giving it a dif-

ferent practical meaning for the North than it has for

the South. Even if we are wrong in reading Keyes,

413 U.S. at 200-03, 213-14, as specifically rejecting

that regional approach to remedy, the law of violation

settled by Keyes mandates system-wide relief for

plaintiffs.

A. Plaintiffs’ Made Out A Prima Facie Case Of System-Wide

De Jure Segregation.

There are four elements to our prima facie case

under the burden-shifting principles set out in Keyes:

(1) the ‘‘northern’’-style dual system extant at the

time of Brown; (2) the continued racial assignment

of faculty at least until 1969; (3) racially discrimina-

tory optional attendance zones created and maintained

throughout the post-Brown era; and (4) the 1972

Board’s rescission of the 1971 Board’s desegregation

program.”

“The court of appeals reserved decision on, and thereby sus-

De NO RE Ge ee Oe

nese ts! a.

1. Dayton’s 1954 dual system ‘‘did not relate to an

insubstantial or trivial fragment of the school system.”’

Keyes, supra, 413 U.S. at 199. Rather, it contained a

substantial majority of Dayton’s public school pupils

in schools intentionally segregated on the basis of race.

Moreover, virtually all faculty and staff were then de-

liberately assigned to schools on a racial basis, with

‘‘the clear effect of earmarking schools according to

their racial composition. ... ”’ Jd. at 202. It is there-

fore doubtful that there was not a racially identifiable

school in Dayton in 1954. See pages 15-19, supra. And

this extensive separation of the races was the direct

product of outspoken, official racial discrimination be-

ginning at least as early as 1912 and continuing, per-

haps with modification but surely without interrup-

tion, until 1954. It may not have been a perfect sys-

tem of complete segregation, but the breaches were few

and far between. See pages 18-19, supra.

2. The assignment of faculty and staff on the basis

of race continued with slight change until 1969, when

pended, the district court’s findings with respect to site selection

and school construction, grade structure and reorganization, and

pupil transfers and transportation, We have summarized the evi-

dence relating to these areas in Appendix A, attached hereto (see

note 14, supra). In our view, these facts prove beyond a reasonable

doubt and to a moral certainty that the entire Dayton system in

all relevant school administrative practices is infected with inten-

tional racial discrimination. It is also our firm belief, however, that

Argument I above is conclusive and the points made in this Argu-

ment II are more than adequate under the burden-shifting princi-

ples of Keyes, without regard to these reserved issues. If the Court

rejects both Arguments I and IT, however, then it will be necessary

for this Court either to evaluate the evidence set out in Appendix

A or, ‘‘rather than deal with the merits of the question in this

Court’’ (Dandridge v. Williams, 397 U.S. 471, 476-77 n.6 (1970) ),

to remand to the court of appeals for its disposition of these re-

served issues.

HEW, under its mandate of Title VI of the Civil

Rights Act of 1964, objected to the Board’s “policy

of racially motivated assignment of teachers and other

professional staff.’’ A.415.“ Only then did the Board

begin to effectively disestablish the dual system of

faculty and staff assignments. But simple faculty de-

segregation that late in the day was plainly not enough

to counter the entrenched effects of this longstanding

practice of intentional segregation, which for over 60

years had ‘‘earmark[ed] schools according to their

racial composition.’’. Keyes, supra, 413 U.S. at 202.

See note 20, supra, and accompanying text.”

3e We have previously outlined the evidence show-

ing the racially discriminatory operation of optional

** The court of appeals reserved ruling only on whether the ra-

cial identifiability of faculty assignments at the time of trial con-

stituted a continuing faculty-assignment constitutional violation.

See note 14 and page 44, supra.

more than just ‘‘earmark’’ schools as ‘‘black’’ or ‘‘white.’’ As the

court of appeals determined in Brinkman I, the Dayton Board

long ‘‘assigned all black teachers only to schools with all black

pupils ... pursuant to an explicit segregation poliey of the Board.”’

A.56, Through 1951 this ‘‘explicit segregation policy’’ never al-

lowed a black teacher to instruct a white child; as a result, every

time the Board assigned black teachers to a class or school, its ex-

plicit policy and unswerving practice was also to exclude or other-

wise transfer all white students (and their white teachers) to other

classrooms and schools and to assign only black students to these all-

black schools. See pages 8-15, 18-19, supra. There is little wonder

therefore that, when the Board in 1951-52 substituted an ostensibly

new policy concerned only with the racial preferences of white

teachers and white schools, the former policy ‘‘effectively continued

in practice through the 1970-71 school year.’’ A.56. And the effect

of this continuing racial practice on the identification of schools as

“*black”’ or ‘‘white’’ was nearly as great, albeit not as direct, as

the former policy.

o-~ aw

attendance zones. See pages 24-30, supra. This is a

classical segregation device, which the lower courts

have found to exist with considerable regularity in the

‘‘northern’’ eases;*’ and they have consistently con-

eluded that such optional zones are, in Judge Wis-

dom’s words, ‘‘unadulterated segregation.’’ United

States v. Teras Education Agency, 467 F.2d 848, 867

(5th Cir. 1972). Petitioners’ effort (Pet.Br. at 22-25)

to minimize the impact of this conceded unconstitu-

tional practice makes too little of the district court’s

findings and not enough of the record. The district

court’s general finding with respect to optional zones

specifically identifies four examples effecting segre-

gation at seven schogls (including one of the six op-

tional zones created in the West-Side Reorganization

in 1952 (see note 21, supra)). A.8. When the finding

of a city-wide blacks-only optional zone for high

school students is included (A.4-5),” all high schools.

were also directly affected by such ‘‘unadulterated

segregation.’’ In addition to city-wide zones, the un-

rebutted evidence shows that optional zones directly

effected segregation between some 15 pairs of schools

substantially disproportionate in their racial composi-

tion. See pages 25-26, supra. By any definition, 30

schools in a system with less than 70 schools relates to

much more than ‘‘an insubstantial or trivial fragment

of the school system.’’ Keyes, supra, 413 U.S. at 199;