# Respondents Brief — Dayton Board of Education v. Brinkman > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0761%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1977 - **Citation:** 429 U.S. 1060 ## Text Supreme Court, U.S ~ FILED APR 51977 —— LD ee 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, Ve 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 ii 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 la la 4a 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, v. 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- 2 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: 3 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- 4 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. 5 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 6 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 7 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 8 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 9 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.) 10 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. 11 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. 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 13 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 14 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. 15 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), 16 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 17 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- 18 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 19 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. 20 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. 21 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. 22 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. 23 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- ’ 24 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 25 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. 26 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 — 27 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 28 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. ee © Pr ITT 2... ee 29 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 30 (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 ol 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). 32 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. : : ! ; ; « 3 : - ve. SPS RD. 33 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- 34 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). 36 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- 37 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 38 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.”’ 39 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 o: 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» 41 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. 42 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 43 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 44 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 45 .. . 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. 46 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 47 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, . 48 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- ; 49 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. 50 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, 51 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, 52 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 D3 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 54 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 5D 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 56 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 es > ea 57 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 58 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 - ee 59 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). 60 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 re ee ee Seen I vn 61 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 ev [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0761%3A6. Public record. Not legal advice.