Appendix — Lansing Board of Education v. National Ass'n for Advancement of Colored People
Supreme Court brief1977
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FILED
OCT 20 1977
Volume I, Pages 1 to 184
Nees CLERK
IN THE msi
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1977
No... 77 = 600
LANSING BOARD OF EDUCATION, a Body Corporate; and Members of
the LANSING BOARD OF EDUCATION: viz., VERNON D. EBERSOLE,
CLARE D. HARRINGTON, MICHAEL F. WALSH, RAY A. HANNULA,
JOAN HESS, J. C. WILLIAMS, BRUCE ANGELL, JOSEPH E. HOBRLA and
MAX D. SHUNK,
Petitioners,
VS.
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE,
Lansing Branch; CYNTHIA TAYLOR, JUDITH TAYLOR and ANDREA
TAYLOR, by Their Father and Next Friend, JAMES R. TAYLOR; MELINDA
LEA HEDLEY, CHRISTINE MICHELE HEDLEY, DOUGLAS JOHN HEDLEY
and DANIEL JOSEPH HEDLEY, by Their Mother and Next Friend, JOAN L.
HEDLEY; PETER MILLER and ELIZABETH MILLER, by Their Father and
Next Friend, CHARLES MILLER; FRANK J. PENNONI and JAMES PENNONI,
by Their Mother and Next Friend, KATHLEEN PENNONI; and DAVID KRON
and LISA KRON, by Their Father and Next Friend, WALTER V. KRON,
Respondents.
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
To the United States Court of Appeals for
the Sixth Circuit
FRED C. NEWMAN
510 Stoddard Building
Lansing, Michigan 48933
Attorney for Petitioners
St. Louis l.aw Printing Co.. Inc.. 812 Olive Street 63101 314-231-4477
ee
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1977
No. ..
LANSING BOARD OF EDUCATION, a Body Corporate; and Members of
the LANSING BOARD OF EDUCATION: viz., VERNON D. EBERSOLE,
CLARE D. HARRINGTON, MICHAEL F. WALSH, RAY A. HANNULA,
JOAN HESS, J. C. WILLIAMS, BRUCE ANGELL, JOSEPH E. HOBRLA and
MAX D. SHUNK.
Petitioners,
VS.
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE,
Lansing Branch; CYNTHIA TAYLOR, JUDITH TAYLOR and ANDREA
TAYLOR, by Their Father and Next Friend, JAMES R. TAYLOR; MELINDA
LEA HEDLEY, CHRISTINE MICHELE HEDLEY, DOUGLAS JOHN HEDLEY
and DANIEL JOSEPH HEDLEY, by Their Mother and Next Friend, JOAN L.
HEDLEY; PETER MILLER and ELIZABETH MILLER, by Their Father and
Next Friend, CHARLES MILLER; FRANK J. PENNONI and JAMES PENNONI,
by Their Mother and Next Friend, KATHLEEN PENNONI; and DAVID KRON
and LISA KRON, by Their Father and Next Friend, WALTER V. KRON,
Respondents.
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
To the United States Court of Appeals for
the Sixth Circuit
CONTENTS OF APPENDIX
Volume I
Court Opinions:
August 10, 1973, District Court opinion and prelimi-
nary injunction
6 2.63 6.2 6 ee © ee 6 2 6 a 6.8 et oe Ce 8 2 S86 8 2
October 3, 1973, Court of Appeals opinion denying
application for stay
December 19, 1975, District Court opinion re liability
and continuing cluster plan
6 2.8 6.2 8 6.6 2 woe 6.2 Se. oie 2.-s
December 19, 1975, District Court order enjoining de-
fendants from giving force to resolutions of 2-1-73,
that cluster plan remain in effect until ordered dif-
ferently, that Lansing Board of Education submit by
3-1-76 plans to remedy constitutional violations; con-
ference and hearing to be held 3-4-76
July 26, 1977, Court of Appeals opinion affirming Dis-
trict Court judgment entered December 19, 1975...
Volume II
Testimony, Excerpts From:
Boucher, Kathryn
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Candoli, Dr. I. Carl
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Davis, George T., Jr. ..
Ebersole, Vernon
Page
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159
161
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Exhibits:
Boundary Change Resolution of March 28, 1957, af-
fecting Main Street School ....
Boundary Change Resolution of July 8, 1957, Affecting
Michigan, Verlinden and Kalamazoo School Areas: .
Elementary Schoo! Enrollments History ............
Ethnic Count Reports:
Se erp ere rere Peer re te
Sopmemtbet BB, STS. voc ccc ce ccaveccnsescnes
Ethnic Count Without Clusters or One Way Busing...
Excerpts:
Foreword of the 1972 Citizens’ Advisory Committee
on Education Opportunity Report ............
TARR SIGE on kc ccscivce te easeceteseses
1965 Citizens’ Advisory Committee Report ........
Proceedings on Proposed Stipulations ............
Report to Lansing Board of Education Relating to
Impact of the Cluster Program on Reading and
NN Ng OR a hey oie re ee oe 379
Extract from Report to Human Relations Committee. . 382
History of Development of Lansing School District ... 387
Kalamazoo Elementary School History ............. 389
Lincoln School Closing Resolution ................ 390
ee ee ee eee 393
Negro Enrollments at Main, Michigan, Lincoln and
DS hetete ss Bee eee ees lata os. 394
Phasing Out of Kalamazoo and Michigan Avenue
I i ea Coe a is a 395
Record of School Site Sizes, Building Construction, Ad-
dition and Modernization ..................... 397
River Island Census Tracts 1970 ................. 400
River Island Elementary School Attendance Areas.... 401
Se I OP I gg vn ccc ec casceusxees 402
Verlinden Non-Resident Pupils ................... 404
PRELIMINARY INJUNCTION
(Filed August 10, 1973)
United States of America
In the District Court of the United States
for the Western District of Michigan
Southern Division
National Association for the Advancement of
Colored People, etc., et al.,
Plaintiffs,
VS.
Lansing Board of Education, et al.,
Defendants.
The jurisdiction of this court is properly invoked under
28 USC Sections 1331(a), 1343(3) and (4), this being a suit
in equity authorized by 42 USC Sections 1983, 1988 and
2000d. Jurisdiction is also invoked under 42 USC Section
1981 and further invoked under 28 USC Sections 2201 and
2202. this being a suit seeking a declaration that the February
1, 1973 resolutions of the Lansing Board of Education are un-
constitutional, and seeking also other relief.
Individual plaintiffs are children or parents of children who,
as a result of the June 29, 1972 desegregation plan adopted
by the Lansing Board of Education, attend desegregated schools.
Plaintiff, National Association for the Advancement of Colored
People, Lansing Branch, is an unincorporated association which
sues on behalf of its membership who are members of the plain-
tiff class. Plaintiffs are bringing this action on their own behalf
and on behalf of all pei ons in the City of Lansing similarly
tv
situated. The class action is proper under Fed. R. Civ. P. 23.
Because of the notoriety of the case in Lansing, the members
of the plaintiffs’ class have adequate notice.
The matter presently before this court is the plaintiffs’ motion
for a preliminary injunction to restrain the defendant Board
of Education from implementing certain of its resolutions of
February 1, 1973. The implementation of these resolutions
would effectively revise the Board's formal Policy Statement on
Equal Educational Opportunity and would also nullify the de-
segregation plan which was voluntarily adopted by the Board
on June 29, 1972, and which was partially implemented by the
Board beginning in September 1972.
|
For the purposes of ruling on the plaintiffs’ request for a pre-
liminary injunction, this court need comprehensively review
only those developments in Lansing public education which
have taken place since the middle 1950's, with special atten-
tion to elementary schools. The most significant developments
have involved the growth of a pronounced racial concentration
in some West Side elementary schools, the growth of a pro-
nounced ethnic concentration in the north-central section of the
city, and the varied responses of the Lansing Board of Educa-
tion to these disturbing situations. This court finds the following
facts and circumstances.
In 1950, Black people in Lansing numbered only 2,979 out
of a total population of 92,129, or a little over 3%. By 1960,
the proportion had changed to 6,745 Blacks out of a total of
107,807, or slightly over 6%.
Most Blacks lived on the West Side of Lansing, in the south-
ern part of what is known as the River Island area. Following
a common demographic pattern, Black people in the 1950's
—
moved into previously white neighborhoods in the River Island
section, and the racial composition of elementary schools
changed accordingly.
One such school was affected in this fashion was Main Street.
In September 1956, the school was slightly overcrowded and
65% Black. At that time, the overcrowding was eliminated
and the proportion of Blacks was reduced to 55% by an adjust-
ment of boundaries. However, Blacks continued to move into
the Main Street School service area, and the number of Blacks
in the school continued to increase. Confessing that its original
attempt to reverse the trend toward a segregated school had
failed, the Board appointed a committee to make further recom-
mendations. Among other things, this committee suggested an
additional boundary change, or, alternatively, the immediate
construction of an elementary school in the Heatherwood area
to the northwest of Main Street School. The Board rejected
the proposed boundary change because it was unwilling to re-
quire children to travel the “unreasonably long distances” judged
to be necessary to make the change effective. The Board also
refused to construct a new elementary school since this would,
according to the Board, require the vacating of satisfactory
facilities and postpone the construction of new schools badly
needed elsewhere. Finally concluding that the increased Black
enrollment at Main was the result of Blacks moving into the
service area, the Board resolved to abandon further efforts to
keep Main integrated, and further resolved to maintain equal
educational opportunity through a variety of special programs.’
After 1957, the Board made no changes in the boundaries
of Main Street School.” Subsequently, in the early 1960's, Main
1 Lansing Board of Education, Minutes, March 28, 1957. PI.
Ex. 12.
* Additional Stipulations, No. 4. A map showing River Island at-
tendance areas is in West Side Educational Fecilities Ad Hoc Com-
mittee, “Report and Recommendations on River Island Elementary
Schools, February 24, 1972,” App. III-F, Addendum No. 1, Pl. Ex.
6. [Hereinafter cited as “River Island Report 1972.”]
Street School became overcrowded, and two mobile units had to
be added.* At the same time, nearby Verlinden School, about
14 blocks, slightly over a mile, north of Main Street School was
underutilized, having two vacant classrooms by 1965. Ver-
linden, in contrast to Main, was predominantly white. Similarly,
predominantly white Barnes School, 1.2 miles southeast of Main,
had one vacant classroom.* Although there was no evidence
as to the transportation policies of the Board in the late 1950's
or early 1960's, there was documentary evidence suggesting
that during the 1971-72 school year Lansing transported only
those students who lived more than 1.5 miles from their schools,
except in cases of special needs or services.” If the 1.5 mile
distance is accepted as a reasonable outer limit, it appears that
many children in the Main Street service area could have been
assigned. Probably this would not have been true as to Barnes,
since the Grand River runs between Main and Barnes.
As the Board abandoned efforts to keep Main Street School
racially integrated through boundary adjustments, it apparently
established special transfer policies which accelerated the trend
toward the school’s becoming overwhelmingly Black. Since the
Board retains special transfer statistics for only five years, and
for a time was precluded from keeping any statistics on the basis
of race, precise statistics are unavailable for the late 1950's on
the operation of the Board’s special transfer policies. Mrs.
Clinton Canady, Jr., who served on the Lansing Citizens’ Com-
mittee on School Needs, established by the Board in 1959, in-
dicated that the Committee was disturbed by the large number
of transfers out of Black schools, and especially from Main
. * “Mobile United Locations—Historical Record 1962-1973.” Def.
x. 16.
* Education Committee of the Lansing Branch NAACP, “Report
of the Education Committee of the Lansing Branch NAACP, Janu-
ary 1963-March 1965,” compiled by Hortense G. Canady, Chairman
at 20. Pl. Ex. 4. [Hereinafter cited as “NAACP Report 1965.”]
” “River Island Report, 1972,” App. ILI-F, at 4.
Street School to predominantly white Verlinden for purely racial
or allegedly “medical” reasons. Both parties acknowledged that
some special transfers also went from Michigan Avenue School,
which was becoming predominantly Black in the early 1960's,
to Verlinden. In its 1961 Report to the Board, the Citizens’
Committee recommended that a policy be established which
would “discourage and prevent transfer for reasons of race,
natienality, or religion.””
The first hard statistics presented to the court on those trans-
fers are contained in the Lansing Public Schools’ “Report to
Human Relations Committee,” made in 1964. A chart of “Spe-
cial Transfers to Schools, 1962-63, 1963-64” lists “Schools
Receiving Special Transfers” and, for each of the two school
years measured, “Total Transfers,” and the number of “Mexi-
can,” “Negro,” “Oriental,” and “American Indian” transfers
within this total. Since these four minority groups are the only
ones customarily measured in Lansing, it is proper to infer that
subtracting the number of minority transfers from the total of
all transfers will give the number of white transfers. During the
1962-63 school year, Verlinden School, which was about 95%
White, received a total of 25 transfers, of whom 20 were White
and 5 were Black. During the 1963-64 school year, Verlinden
received a total of 33 transfers, of whom 17 were White and
16 were Black. During 1962-63, the next highest number
of total transfers to any school other than Verlinden was 3,
during 1963-64, 5.‘
These statistics do not tell the full story of the special transfers
in the early 1960's. They do not show, for example, the service
area from which the students transferred to Verlinden. How-
6 Lansing Citizens’ Committee on School Needs, “Report of the
Lansing Citizens’ Committee on School Needs,” May 1961, at 17.
Pi. Ex. 3.
7 Lansing Public Schools, “Report to Human Relations Com-
mittee,” June 25, 1964, at 154-155. [Hereinafter cited as “Human
Relations Report 1964.”]
—
ever, testimonial and documentary evidence suggested that the
White Verlinden transfers came primarily from the Main Street
School service area and exclusively from the Main Street and
Michigan Avenue service areas combined." Since the majority
of the students who were allowed to transfer in 1962-63 and
1963-64 were White, and the majority of students in both Main
(90%) and Michigan (74%) Schools was Black, the obvious
effect of allowing the special white transfers was to accelerate
the “White flight” from the schools affected.
The Board’s statistics likewise do not state why students were
allowed to transfer in such relatively large numbers into Ver-
linden School. The Bgard’s “Policy Statement No. 6121: Equal
Educational Opportunity,” adopted on June 4, 1964,® stated the
following with respect to transfers:'°
“The Board of Education recognizes that on occasion it
has been necessary to deviate from the attendance-area
concept and assign students to schools far removed from
their homes. This has been done to eliminate overcrowding
of certain schools. In individual cases, a student has been
allowed to attend a school other than the one to which he
normally would be assigned. Such transfers have been au-
thorized only because of the particular, individual needs
of the student—usually curricular needs—which one school
is prepared to meet, another is not.”
The suggestion was also made that each student was trans-
ferred for a bona fide “health” or “medical” reason.
* Testimony of Mrs. Clinton G. Canady, Jr., and Mr. William L.
Webb, Acting Director of Instructional Support and Director of
= ‘co Lansing School District; “NAACP Report 1965,”
at 4-5, >
* Reprinted in full in “Human Relations Report 1964,” at 2-8.
Amicus Ex. A.
'’ “Human Relations Report 1964,” at 8.
The plaintiffs, in contrast, contend that the Board's system
of special transfers in the Main-Michigan-Verlinden area
amounted to a cOnscious departure from the neighborhood
school policy in a situation where adherence to the policy would
have produced a more even racial distribution among some
s. ols, at least temporarily. The evidence shows that the
charge that the Board was operating a special transfer system
which had a discriminatory effect was made repeatedly in the
early 1960's. As late as the Spring of 1965, the Lansing
NAACP Education Committee complained that the Board had
not acted to discourage and prevent special transfers on the
basis of race, as the Citizens’ Committee had recommended in
1961."!
In its 1964 Policy Statement, the Board said it allowed de-
partures from the regular neighborhood school policy in order
to relieve overcrowding. Perhaps the special transfer of a few
Black students to Verlinden (5 in 1962-63 and 16 in'T963-64)
can be attributed to attempts to relieve overcrowding at Black
schools. (The plaintiffs thought the Black transfers merely in-
dicated a desire on the part of Blacks to avoid racially imbal-
anced schools.) However, if the relatively high number of spe-
cial white transfers was for the purpose of relieving overcrowd-
ing, then it appears that the Board was operating the system with
discriminatory effect, as already pointed out. A majority of
those transferred to Verlinden were white, while both Main and
Michigan were predominantly Black.
The second reason given by the Board in 1964 for allowing
special transfers was to meet students’ individual needs, “usually
curricular.” At trial the defendant did not attempt to justify
the unusually large number of transfers to Verlinden as “cur-
ricular”. Parenthetically, if the transfers were for curricular rea-
sons, this would merely raise additional questions as to the
‘1 “NAACP Report 1965,” at 5.
ee
reasons for the curricular superiority of white Verlinden and the
relative inferiority of Black Main and Michigan.
Finally, the suggestion was made that each transfer was for
a bona fide “health” or “medical” reason which existed apart
from the desire of some to escape from predominantly Black
schools to a nearby white one. The problem with this account
is the inherent improbability of relatively large number of white
students having special health difficulties requiring them to at-
tend Verlinden (20 in 1962-63, 17 in 1963-64), while the next
highest school received only 3 special transfers in 1962-63 and
5 in 1963-64. The wide disparity between Verlinden and other
schools suggests that the major reason for transferring t> Ver-
linden was other than medical, and the statistics on the racial
balance of Main, Michigan and Verlinden lend credibility to
the charge that the transfers to Verlinden were racially moti-
vated and allowed by the Board with the factor of race prin-
cipally in mind.
Thus, it appears probable to this Court, weighing all the
relevant evidence submitted to date, that the “neighborhood
school policy” was not administered in a racially neutral manner
in the late 1950’s and early 1960's in the River Island area,
and specifically with respect to the Main, Michigan and Ver-
linden schools. It is probable that the boundaries established
under the “neighborhood school policy” in the Main-Michigan-
Verlinden area were deliberately frozen in the late 1950's, after
previous adjustments at Main, in order to contain Blacks in a
few schools and in order to avoid integrating Verlinden. The
large number of special transfers to Verlinden and the rela-
tively short distances involved suggest that the distance from
Main Street and Michigan Avenue School service areas to Ver-
linden was not in fact so great as to preclude boundary adjust-
ments in order to achieve a more even racial distribution without
the necessity of resorting to transportation of students by bus.
Similarly, it appears probable that the Board sanctioned special
transfers from Main and Michigan Schools with the conscious
purpose and obvious effect of allowing white students to escape
from predominantly Black schools and with the effect, too, of
accelerating the trend towards an even more severe racial con-
centration.
Apart from the matters of boundaries and special transfers,
the Lansing Board was in the middle 1960°s becoming increas-
ingly conscious of the severe racial concentration which existed
in several elementary schools. In 1964, Lansing had 16,654
elementary students in 39 elementary schools. Of these 1,694,
or about 10%, were Black, and about 77% of these attended
only four schools: Lincoln had 173 students, all Black; Main
Street School had 424 Black of 444, about 95%, Kalamazoo
School had 454 Blacks out of 558, about 81%; Michigan Ave-
nue School had 276 Blacks out of 373, about 74%. At the
other end of the spectrum, 15 elementary schools had no Blacks
enrolled, and 10 other elementary schools had less than 10
Blacks.'-
On June 4, 1964, the Lansing Board of Education adopted
the first of a series of important resolutions, a “Policy Statement
on Equal Educational Opportunity,” generally acknowledging
its obligation to provide equal educational opportunity to all
children insofar as it was able to do so. “Today's schools,” the
statement said
“must provide each child with an equal opportunity to
learn and to fulfill his innate potential. The schools must
assist each child in discovering and developing his poten-
tialities, and must aid each child in recognizing his inherent
worth to himself and to society.
12 Additional Stipulations, No. 14. “Human Relations Report
1964,” at 9-10.
— von
The Board of Education shall not establish or know-
ingly sustain any condition which is detrimental to a child's
sense of individual worth, providing it is wthin the power
of the Board to change such condition.”
At the same time, the Board asserted that its attendance areas
for elementary and secondary schools had been established on
a geographical basis without regard to race, creed, religion or
national origin. While acknowledging that this neighborhood
school policy resulted in an “imbalance of minority group
pupils,” the Board stated that this circumstance resulted from
factors beyond the control of the Board, and stated that the
policy would continue.'*
In the fall of 1964, the Board initiated a policy of trans-
porting students out of the River Island area in order to
relieve overcrowding and to relieve racial isolation of White
schools in other parts of the Lansing School District. This
policy continued until the initiation of a more comprehensive
transportation plan in the 1972-73 school year. Complementing
this practice was the closing of two predominantly Black schools
in the River Island area, Lincoln in 1965, and Kalamazoo in
1970. (In 1968, the Board resolved to close all predomirantly
Black schools in the River Island area, but this resolution was not
fully executed before the 1972-73 school year.) Before 1972,
the transportation of elementary school children to reduce ra-
cial concentrations in the elementary schools was one-way,
and the majority of the children transported was Black.'* Dur-
ing the 1971-72 school year, 510 students were transported
'S Reprinted in “Human Relations Report 1964,” at 5-8. Em-
phasis added. In 1963, the People of the State of Michigan adopted
a new Constitution which provided, “Every school district shall pro-
vide for the education its pupils without discrimination as to
religion, creed, race, color, or national origin.” Art. VIII, Sec. 2. The
Board's Policy Statement is properly in accordance with this pro-
vision.
'4 Stipulation No. 26.
a i
—
for the purpose of reducing racial isolation. Of these, 460, or
about 909: , were Black, and 50, or about 10°, were White.
During the same year, 1.900 Whites were transported for pur-
poses other than integration.!”
While taking these steps to ameliorate the difficulties in the
River Island area, the School Board decided it needed more
detailed information and more informed citizens opinion and
recommendations concerning additional steps which might be
taken. On February 11, 1965, the Lansing Board of Education
resolved to create a Citizens’ Advisory Committee on Educa-
tional Opportunity, to be composed of citizens from all parts of
the district. Among other things, the Committee was charged
with making a comprehensive examination of steps to be taken
to insure an equa! educational experience for all children resid-
ing in the school district and an examination, too, of the possi-
bility of realignment of school service areas.'®
In the course of their study, the Committee collected sta-
tistics on the racial composition of Lansing schools, The data
collected on the fourth Friday of the 1965 school year revealed
a total of 17,882 elementary school students, of which 1,853,
or approximately 10.3% were Black. Of 48 elementary schools
existing at that time, 11 had no Black students whatsoever, 7 had
either 1, 2, or 3 Black students. On the other hand, several
schools were disproportionately Black: Main was 86% Black,
Kalamazoo was 79.3% Black; Michigan was 71.3% Black. Six
other elementary schools were between 11.5% and 20.5%
Black. In addition, the Committee made a more detailed study
i> Testimony of William L. Webb.
'* Citizens’ Advisory Committee on Educational Opportunity,
“Report of the Citizens’ Advisory Committee on Educational Oppor-
tunity,” Submitted to the Board of Education, June 23, 1966, App.
A, at 52-53. [Hereinafter cited as “Citizens’ Committee Report
1966.” }
a 12 a»
of many schools. On the basis of all their collected data, the
Committee reported, “Lansing has segregated schools.”"*
The Committee also studied the effects of segregation. “The
work of the Committee,” according to its 1966 Report, “in-
volved first-hand observation of the effects of segregated educa-
tion. Meetings of the committee of the whole, meetings of
subcommittees. and individual study and evaluation led to a
unanimous conclusion that de facto segregation in our educa-
tional system has done and will continue to do great harm both
to the individuals involved and to the community as a whole. The
committee believes that segregated education and quality educa-
tion are not compatible. . . .” Similarly, the Committee con-
cluded that “segregated education is unequal education.”'*
Several recommendations followed from these conclusions.
Among other things, the Committee recommended that an exist-
ing policy of transporting children from over-crowded schools
to other areas of the city continue. (The overcrowded schools
were mostly Black, and those transported were consequently
mostly Black.) The Committee also recommended that the
largely Black schools be phased out completely, and the chil-
dren transported to other areas of the city. Over the long run,
said the Committee, consideration should be given to a variety
of positive programs designed to achieve an integrated, quality
education. '®
Following the receipt of the Citizens’ Advisory Committee
Report, the Lansing Board of Education amended its Policy
Statement on Equal Educational Opportunity to read, in part,
as follows:
-——_— -——-——
'* Id., App. R-3, at 88-89; 3-4. Italics in original.
's Id. at 2, 7.
'' Id. at 9-12
— . -
“Equal educational opportunity is most possible to
achieve in schools where there is reasonable balance in the
racial composition of the studert population. It shall be
the goal of this school district to achieve such balance.
This Board of Education believes that in any racially-mixed
community segregated education and quality education are
not compatible and that steps must be taken to insure that
the school system advances further toward the goal of true
equality of educational opportunity.
The Board of Education shall not knowingly establish
or sustain any condition which is detrimental to a child's
sense of individual worth, and shall actively seek to find
ways to change these conditions when such conditions in-
hibit learning.
. . However painful the admission, the Lansing Board
of Education accepts as a fact that this school district has
racially imbalanced schools. Further, it believes not only
that segregation is wrong; it asserts with equal conviction
that integration is right. The Board of Education recog-
nizes the educational values inherent in the neighborhood-
school concept. On the other hand, this Board believes that
when neighborhood schools result in segregated education
and that deviation from the neighborhood-school concept
can mean integrated education, that such deviation is much
more desirable.”*”
Between 1967 and 1971, the Lansing Board of Education
and the administrative authorities conducted further studies and
made further recommendations concerning all aspects of the
problem of providing an equal, quality education for all Lansing
*° Adopted Jan. 19, 1967. Reprinted in “In-Service Training:
Board Members and Administrators, Lansing, Mi. January 27 and
29, 1972,” [unpaginated]. Pl. Ex. 9. [Hereinafter cited as “In-Service
lraining.”’)
—"
students. By 1971, the original 1966 Citizens’ Advisory Com-
mittee Report was somewhat dated, so the Board resolved to
establish a new and second Citizens’ Advisory Committee on
Educational Opportunity. Among other things, the Committee
was to review the 1966 Report and make new recommendations
where necessary; to review the existing policies and official state-
ments of the Board regarding equal educational opportunity,
and recommend additions or changes; and to recommend to the
Board a plan and timetable for the final desegregation of all
schools in the district. On the basis of 1971-72 school year sta-
tistics, the Committee concluded that Lansing elementary schools
were “still segregated, in terms of governmental requirements.”’2!
An examination of all the relevant statistical evidence pre-
sented to the Court, including the stipulations of the parties, has
revealed the following about the Lansing School District during
the 1971-72 school year, on the eve of the adoption of the de-
segregation plan which is the principal subject of this litigation.
The District covered an area of approximately 50 square miles,
extending in many places beyond the boundaries of the City of
Lansing itself. About 33,000 students live in the District. Of
these 4,600, or about 14%, were Black; 2,400, or about 7%,
were Spanish-American, and .3% were American Indians. About
18,800 students attended the 48 elementary schools. Of these
students, approximately 2,600, or 14%, were Black; 1,400, or
7%, Spanish-American. Two elementary schools were pre-
dominantly Black: Main Street School was 85% Black and
Michigan Avenue School was approximately 80% Black and
10% Spanish-American. Cedar School, in the northern part of
Lansing outside the River Island area was 49% Spanish-Amer-
ican, 40% White, and 4% Black.?*
*1 Citizens’ Advisory Committee on Educational Opportunit
“Report of the Citizens’ Advisory Committee on Shesdiend Op.
portunity, April 20, 1972,” at i. [Hereinafter ci cae! \p-
_ ** Lansing School District, “Proposal for Assistance Under Pub-
lic Law 92-318, Title VII—Emergency School Aid,” [1972], at 5.
a ee
In addition to allegations that the School Board intentionally
committed numerous acts and omissions which have contributed
to severe racial concentration among elementary school students
since the late 1950's, the plaintiffs allege that the defendant en-
gaged in discriminatory employment practices in the early 1950's
and the discriminatory assignment of minority teachers to mi-
nority schools until very recently.
There is uncontradicted evidence that the School Board was
engaged in discriminatory hiring practices in the past. The first
minority teacher was not hired until 1950?* Mrs. Olvia I. Letts,
who is Black, and now an area principal and principal of Horse-
brook School, testified that she originally applied for work as
an elementary teacher in Lansing in January 1951. The Assist-
ant Superintendent, Mr. Averill, wrote her that Lansing schools
were not hiring Blacks at that time. Subsequently, Mrs. Letts
was hired, and she became the first Black elementary school
teacher in the Lansing system. Jerusha H. Bonham, who is
also Black, and who is now a social worker for the Lansing Pub-
lic Schools, testified that when she first applied for employment
with the Lansing public schools in July 1953, she was told that
Lansing had already hired its “quota” of Blacks for the season.
Subsequently, the Lansing Schoo! District began hiring more
minority personnel, including Spanish-Americans in addition to
Blacks, but the District has not hired the same proportion of
minority personnel as the proportion of minority students.** The
following chart illustrates this fact:
Pi. Ex. 2. {Hereinafter cited as “1972 Proposal.””] “River Island Re-
port 1972,” App. III-F, at 1. “Ethnic Count Report, Five Year
Period Nov. 1967-Dec. 1971,” stipulated as accurate, Additional
Stipulations, No. 18. Stipulations 2, 7, 10, 15. Some slight dis-
crepancies appear among various statistical stipulations and docu-
mentary statistics accepted as accurate. These discrepancies are
minor, and do not affect the ultimate conclusions.
23 Additional Stipulations, No. 12.
24 Id.
ae
PERCENTAGE OF MINORITY PERSONNEL
AND MINORITY STUDENTS?"
Percent Percent
Minority* of Total Minority
Year Personnel* * Personnel Students
1967-68 66 3.8% 14 %
1968-69 70 4.2% 15.3%
1969-70 92 5.1% 16.7%
1970-71 130 7.9% 18.7%
1971-72 154 9.2% 20.4%
* “Minority” includes Black and Spanish-American.
** “Personnel” includes certified Administrators, Coordinators,
and Elementary and Secondary School Teachers.
Thus, it appears probable that the Lansing School District
has engaged in discriminatory hiring practices in the past.
However, the present Superintendent of Schools, Dr. Carl I.
Candoli, testified that there has been no discrimination in hir-
ing practices for the last two years, and there is no reason to
doubt this testimony as to present policies.
The plaintiffs aiso contend that the Lansing School District
has assigned minority teachers in a racially discriminatory fash-
ion. It was stipulated that “the Board of Education has exer-
cised a policy of assigning Black teachers to predominantly
Black Schools, disproportionately; with the two remaining Black
schools, Main and Michigan, having 33° and 40% minority
teachers respectively.”*° In January of 1972, 7 elementary
g
q , L g
** Additional Stipulations, No. 13.
i i
schools which had 10% or less minority student enrollment
had no minority teachers at all.** Thus, in the absence of an
explanation from the Board for these differences, it appears
probable that the Board has to a significant degree discrimi-
natorily assigned minority teachers to minority schools.
The plaintiffs also contend that the physcial facilities of pre-
dominantly Black schools have been inferior to those of White
schools in the Lansing School District. While it appeared that
some of the schools in the River Island area, including pre-
dominantly Black schools, were below the District average in
one or more respects, it did not appear that these deficiencies
were so significant that the schools were unsafe or inoperable.
Moreover, the Schoo! Board has apparently made an effort to
keep River Island facilities up to standard through moderniza-
tion and the acquisition of equipment through federal funds.
Thus, to the extent that the problem of overcrowding and its
attendant difficulties can be separated from the problem of
facilities, it does not appear that the Board has acted discrim-
inatorily with regard to physical plant or equipment.
As the 1971-72 school year drew to a close, the Lansing
School Board reviewed the history of the problem of racial and
ethnic concentration in the elementary schools, and consid-
ered the recommendations of the Citizens’ Advisory Committee
on Educational Opportunity, whose Report had been submitted
in April. The Committee had suggested the adoption of one
of three alternative plans for the integration of the District.
The Committee stated that its plans had been framed in rec-
ognition of the parameters established by legal decisions ren-
dered since the early 1950's on the subject of desegregation of
public education.“** On June 1, the Board resolved to con-
sider its own cluster plan for desegregation at a subsequent
meeting.
27 Testimony of Mr. Dwayne Wilson; “In-Service Training.”
274 “Citizens’ Committee Report 1972,” at vii.
=
On June 15, 1972, James E. Slack and others, as next
friends of minor children, filed a civil action in the Circuit
Court of the State of Michigan in and for Ingham County
against the Board of Education of the Lansing School District
and others, charging that the consideration, adoption, and im-
plementation of the proposed cluster plan would violate their
constitutional rights. The Circuit Court issued a temporary re-
Straining order preventing the Board from considering or adopt-
ing its plan. As a result of a petition filed by the Defendant
on June 19, 1972, the cause was removed to this court. After
a hearing held on June 26, the temporary restraining order was
set aside. Subsequently, by stipulation of the parties the cause
was dismissed without prejudice.
Following public hearings and extensive public discussions,
the Board of Education, on June 29, 1972, resolved to adopt
its proposed cluster plan. In the extensive Preamble to its
Resolution, the Board noted that it had fully considered the
1972 Citizens’ Advisory Committee recommendations and also
the information and comments submitted to it during public
hearings. The Board further stated its conclusion that there re-
mained in Lansing several elementary schools which were, “by
definition, segregated schools.” The Board finally reaffirmed
the 1964 Policy Statement on Equal Educational Opportunity,
including in its brief that segregation in schools was wrong
and integration in schools was right, and went on to adopt the
cluster plan in order “to further progress toward equalization
of educational opportunity in the Lansing School District.”?*
The full desegregation plan as adopted by the Board includes
provisions for three cluster groups, two to be implemented in
1972-73, and one to be implemented in addition during 1973-
74. The plans involve only grades three through six. No kin-
dergarten, first, or second grade students are involved in any
of the three clusters. According to the original schedule, fur-
*~ Lansing Board of Education, Minutes, June 29, 1972. Pl. Ex. 8.
Bettie ect scree tas
— se
ther study and planning was to take place during the period
1972-74 to the end of developing and implementing additional
clusters as the need appeared.
Clusters One and Two were implemented in September,
1972, and remained in existence throughout the 1972-73 school
year.
Cluster One involves four schools, Main Street, Barnes Ave-
nue, Elmhurst, and Lewton. The operation of Cluster One re-
quired the elimination of the fifth and sixth grades as Barnes
and Lewton Schools and the elimination of the third and fourth
grades at Main and Elmhurst Schools. Transportation is re-
quired as follows in Cluster One: (A) All of the third and
fourth grade students are transported from Main to Elmhurst.
(B) All of the fifth and sixth grade students are transported
from Barnes to Main. (C) All of the third and fourth grade
students are transported from Elmhurst to Barnes and Lewton.
(D) All of the fifth and sixth grade students are transported
from Lewton to Elmhurst.-* The distances involved are not
great. The approximate distance between Elmhurst and Barnes
is .8 mile; between Elmhurst and Lewton, 1.2 miles; between
Barnes and Main, 1.2 miles; between Main and Elmhurst, 2.1
miles; between Main and Lewton, 2.6 miles. While travel time
depends on traffic patterns and other variables the plaintiffs
offered a formula to estimate the average travel time. Multiply
the first miles by five minutes and each subsequent mile by two
minutes.*” Thus, by this formula, the average time to travel
the longest distance involved in Cluster One, 2.6 miles, is 8.2
minutes.
Cluster Two likewise involves four schools: Michigan Ave-
nue, Maple Hill, Cavanaugh, and Everett. The operation of
Cluster Two required the elimination of the fifth and sixth
2" Additional Stipulations, No. 8.
%® Distance Chart, Pl. Ex. 10.
———
= — 2) —
grades at Cavanaugh and Maple Hill and the elimination of
the third and fourth grades at Everett and Michigan Avenue
schools. Transportation is required as follows in Cluster Two:
CLUSTERS ONE AND TWO*'
% Minority*
The parties have stipulated as to the impact of the cluster
plans on the racial and ethnic composition of the schools in-
' * “Minority” includes Black and Spanish-American.
volved. The following chart illustrates the changes which have
(A) All of the fifth and sixth grade students are transported Cluster One 1967-68 1968-69 1969-70 1970-71 1971-72 1972-73
f Cc ichigan.
rom Cavanaugh to Michigan. (B) All of the third and fourth Main 97% 97% 86% 87% 89% 62%
grade students are transported from Everett to Cavanaugh and
Maple Hill. (C) All of the fifth and sixth grade students are Barnes 6% 5% 6% 6% 1% 16%
transported from Maple Hill to Everett. (D) All of the third Elmhurst 4% 8% 9% 8% 7% 18%
and fourth grade students are transported from Michigan to 1
Cavanaugh; some of the fifth and sixth grade students are _ _Lewton 0% 0% 1% 13% 10% a1%
transported from Michigan to Everett.*! The approximate dis-
tances involved are as follows: Between Cavanaugh and Ev- : Cluster Two
erett, .8 mile; between Everett and Maple Hill, .4 mile; between Maple Hill 1% 11% 16% 17% 13% 23%
Cavanaugh and Michigan, 3.4 miles; between Michigan and ;
Everett, 3.6 miles.** The longest travel time, computed ac- eae — — _ sated ia =
cording to plaintiffs’ formula, is approximately 10.2 minutes. ) Cavanaugh 0% 1% 3% 4% 4% 23%
| Everett 2% 2% 2% 2% 4% 16%
:
:
taken place. The column 1971-72 indicates the percentage of
each school which was minority in the last full school year
before the clusters were implemented. The 1972-73 column
indicates the composition of the schools with the clusters in
effect.
%1 Additional Stipulations, No. 8.
*2 Distance Chart, Pl. Ex. 10.
OO a Ss Oe Ee OA IE RR Re NS
When implemented, Cluster Three will involve five schools:
Grand River, High, Oak Park, Cedar and Post Oak. Cluster
Three will require the elimination of the third and fourth grades
at Grand River and Pe | Oak Schools, and the elimination of the
fifth and sixth grades at High, Oak Park and Cedar Schools. The
plan requires transportation of third and fourth grade students
from both Grand River and Post Oak to both High and Oak
Park-Cedar. Fifth and sixth grade students will be transported
from High to Post Oak and from Oak Park-Cedar to Grand
River.** As with the other clusters, the distances involved in
Cluster Three are not great. The approximate distance between
33 From Stipulation No. 15.
34 ing Board of Education, Minutes, June 29, 1972, App. C.
Pl. Ex. 8. Neither the testimonial nor documentary evidence on
Cluster Three was an extensive as that on Clusters One and Two.
—=
Grand River and High is .4 mile; between Grand River and Oak
Park-Cedar, .8 mile; between High and Post Oak, 1.8 miles; and
between Post Oak and Oak Park-Cedar, 2.6 miles. Again ap-
plying the travel time formula, it appears that the average time
to travel the longest distance involved in Cluster Three will be
8.2 minutes.*°
The impact of the implementation of Cluster Three on the
racial and ethnic composition of the schools involved*** is illus-
trated in the following chart:
CLUSTER THREE
% Minority
(Black and Spanish-American)
1967- 1968- 1969- 1970- 1971- 1972-
68 69 70 71 72 ro
Cedar 41% 41% 46% 45% S55% 58%
Grand River 32% 27% 31% 38% 35% 38%
Oak Park 17% 25% 30% 31% 36% 41%
Post Oak 4% 4% 4% 3% 3% 6%
High 28% 31% 34% 34% 34% 33%
*Data for 1967-68 through 1972-73 school years from Stipula-
tion No. 15.
**Data for 1973-74 from Lansing School District, “Proposal
for Assistance under Public Law 92-318, Title VII—“Emer-
gency School Aid,” Table I, at 6. Pl. Ex. 2.
*° Distance Chart, Pl. Ex. 10.
1973-
74%*
48 %
43%
41%
10%
31%
** Since the Board adopted Cluster Three after extensive study
of the general problem and with the goal of reducing undue racial and
ethnic concentration in the schools affected, in the absence of evi-
dence or argument from either party to the contrary, it is assumed
that Cluster Three would accomplish the intended result.
ell
—
Before the cluster plans could be implemented, some Lansing
residents undertook to delay or prevent the implementation of
the cluster-school plan by removing from office those Board
members who had voted to adopt the plan, and replacing them
with members who were hostile to the desegregation program.
Recall petitions were circulated, signed, and duly filed. A recall
election was scheduled for November 7, 1972.
On October 17, 1972, the National Association for the Ad-
vancement of Colored People and individual students and their
parents who reside in the Lansing school district filed the present
action in this court. The plaintiffs asked the court to enjoin
the pending recall election and also requested a declaratory
judgment and an injunction to prevent the Board from repealing,
replacing, or otherwise nullifying the cluster-school plan which
the Board had adopted on June 29. Following a hearing, this
court on October 27, 1972, refused to enjoin the recall election,
but retained jurisdiction on the other matters in this cause.
The election of November 7, 1972, resulted in the recali
of five members of the Lansing Board of Education who
had voted in favor of the cluster-school plan of June 29.
The resultant vacancies were filled in a special election held on
January 11, 1973.
At its meeting of February 1, 1973, the newly constituted
Board amended Policy Statement 6121 on Equal Educationai
Opportunity to omit, in addition to other language, the following:
“It is the position of this Board that there are three
ingredients to a successful program for disadvantaged
children: compensatory education, improvement of self-
concept, and social and racial integration. It is also the
position of this Board that this school system must devise
some means of providing for each of these ingredients . . .
Equal educational opportunity is most possible to achieve
in schools where there is reasonable balance in the racial
=
composition of the student population. It shall be the goal
of this school district to achieve such balance. This Board
of Education believes that in any racially-mixed community
segregated education and quality education are not com-
patible and that steps must be taken to insure that the
school systems advances further toward the goal of true
equality of educational opportunity.
The Board of Education shall not knowingly establish
or sustain any condition which is detrimental to a child’s
sense of individual worth, and shall actively seek to find
ways to change these conditions when such conditions in-
hibit learning.”
The Board amended Policy Statement 6121 in this fashion
because (1) it rejected the idea that there was segregated educa-
tion in Lansing; (2) it concluded that there is a vagueness about
“better racial balance”; (3) it believed that better racial balance
did not necessarily improve the educational opportunities of the
school children.**
At the February | meeting, the Board adopted the following
Resolution rescinding the June 29, 1972 plan:
“Whereas, this Board of Education recognizes that there is
a wide diversity of feelings in the community to the cluster
plan as an educational experiment, and, whereas, there is
no conclusive research or evidence to support the con-
tention that the cluster plan, as conceived and instituted
does or will improve the educational achievement of the
pupils affected, and, whereas the Board feels that the
neighborhood family school is preferred for elementary
students by the majority of the citizens of this school dis-
trict, and, whereas the cooperation of parents is essential
‘6 Proceedings on Proposed Stipulations, May 24, 1973, at 8-9.
—> .
to the well being of any school system, and, whereas, the
community's financial support is vital to the operation of
the school district, and, whereas there are no schools in this
system where an ethnically-imbalanced student population
has resulted from an act of de jure segregation; now, there-
fore, be it resolved that in accordance with the revised
policy 6121, the cluster plan as adopted on June 29, 1972,
be rescinded at the end of this school year (June 30, 1973)
The Resolution went on to state that the attendance patterns
which existed in 1971-1972 in kindergarten through sixth grade
would be restored.**
The above table, “Clusters One and Two,” indicates the effect
of rescission on the schools involved in the two clusters. The
1972-73 column, as noted, is the percentage of minority stu-
dents in each cluster school with the clusters in effect. If the
plan were effectively rescinded, it is reasonable to predict that
these schools would return to approximately the percentage of
minority students which prevailed in 1971-72. Although the
percentages of minority pupils could be expected to vary slightly
in 1973-74 from the 1971-72 percentages because of shifts in
neighborhood racial composition, the historical record indicates
that neighborhood shifts rarely take place with such extreme
rapidity that the variation would be significant during the period
a preliminary injunction would be in effect. The pending ex-
pansion of the Capitol complex in the Michigan Avenue School
area will probably displace some Black people, but this should
not change the proportion of Blacks in the old Michigan Avenue
attendance area. Should a large number of Blacks suddenly
move into one or more of those school attendance areas which
was predominantly White in 1971-72 in violation of all rea-
sonable expectations, then the terms of a preliminary injunction
could be altered to meet the new conditions.
‘* Proceedings on Proposed Stipulations, May 24, 1973, at 10-11.
—=— =
The table “Cluster Three” indicates what would happen if
the cluster were not implemented.
On February 27, 1973, at a hearing before this court in
the present case, the plaintiffs moved for a temporary restrain-
ing order, which was denied. Leave was granted to the plain-
tiffs to file a supplemental complaint, which they did immedi-
ately. In that complaint, the plaintiffs requested, among other
things, a preliminary injunction (a) requiring the defendant to
cease and desist from effectuating the revision of that Equal
Educational Opportunity Policy of the Lansing School District
and the nullification of the plan of June 29, 1972, to desegregate
the Lansing School District; and (b), requiring the defendant to
reinstitute the plan of June 29, 1972, to desegregate the Lansing
School system and to take all steps necessarily attendant thereto.
It is this request for a preliminary injunction which is now
before the court.
Defendant denies that the plaintiffs are entitled to the re-
quested preliminary injunction. Defendant contends that the
plaintiffs have made no showing that their constitutional rights
have been violated, or are about to be violated, or that the plain-
tiffs have suffered or will suffer irreparable harm.
II
Conclusions
I. The court finds that many elementary schools in the
Lansing School District were, at least from the late 1950's un-
til the implementation of the cluster school plan in September
1972, segregated.
| The latest Supreme Court desegration decision stated, “What
is Or is not a segregated school will necessarily depend on the
facts of each particular case. In addition to the racial and
ethnic composition of a school’s student body other factors,
ee ee eee ee ee
0 veel bbe
Peni
— ja
such as the racial and ethnic composition of faculty and staff
and the community and administration attitudes toward the
school must be taken into consideration.” Keyes v. School
District No. 1, 41 U.S.L.W. 5002, 5005 (June 21, 1973).
Previously the Court wrote:
“In Green [Green v. County School Board, 391 U.S. 431,
20 L.Ed. 2d 716, 88 S.Ct. 1689 (1968)], we pointed out
that the existing policy and practice with regard to fac-
ulty, staff, transportation, extra-curricular activities, and
facilities were among the most important indicia of a
segregated system. 391 U.S., at 435. Independent of a
student assignment, where it is possible to identify a ‘white
school’ or a ‘Negro school’ simply by reference to the
racial composition of teachers and staff, the quality of
school buildings and equipment, or the organization of
sports activities, a prima facie case of violation of sub-
stantive constitutional rights under the Equal Protection
Clause is shown.
“When a system has been dual in these respects, the first
remedial responsibility of school authorities is to elimi-
nate invidious racial distinctions. Swann v. Charlotte-
Mecklenburg Board of Education, 402 U.S. 1, 18, 28
L.Ed.2d 554, 91 S.Ct. 1267 (1971).”
In 1964, before the closing of Lincoln School, about 77%
of Lansing’s Black elementary school children were concen-
trated in 4 of Lansing’s 39 elementary schools. Lincoln School
was 100% Black; Main, about 95%; Kalamazoo, about 81%,
and Michigan, about 74% Black. At the other end of the
spectrum, 15 elementary schools had no Blacks whatsoever
enrolled. In a school district in which about 10% of all ele-
mentary students were Black, these schools were segregated
by any standard that has come to the court’s attention. In
1965, Lincoln School was closed, and in 1970, Kalamazoo
School was likewise closed. In 1972-73, Main Street School
— vo
was 85% Black and Michigan Avenue School was about 80%
Black and 10% Spanish-American. Those students in the
southern portion of the River Island area who were without
neighborhood schools were bussed to schools, usually White,
in other parts of the city. However, while the school closings
and transportation reduced the number of segregated schools
and likewise reduced the racial isolation of many students, the
burden of this integration effort fell overwhelmingly on Blacks.
During the 1971-72 school year, about 90% of the 510 stu-
dents who were transported for purposes of integration were
Black. Mindful of the requirement that the court consider
“transportation” as one of the indicia of a segregated system,
Swann, supra, 402 U.S. at 18, the court cannot say that the
reduction of the number of segregated schools by busing mostly
Blacks significantly altered the segregated nature of Lansing
elementary schools. Furthermore, the Lansing School District
has assigned Black teachers to predominantly Black schools,
disproportionately, and this policy continued in effect with re-
spect to Main and Michigan in 1971-72. Finally, the conclu-
sion is inescapable that both the Lansing community and the
school authorities have regarded the elementary schools as seg-
regated. The two Citizens’ Committees which reported in 1966
and 1972 found the schools to be segregated, and the Board
of Education found likewise in crucial policy statements and
resolutions in 1964, 1967, and 1971.
2. The Lansing Board of Education adopted the cluster plan
on June 29, 1972, in orcer to meet what it reasonably con-
ceived to be its constitutional obligations under the Michigan
Constitution and laws under the Fourteenth Amendment of
the United States Constitution. Given the factual background,
the Board reasonably concluded that Lansing elementary
schools were segregated, that in the racially-mixed Lansing
community segregated education and quality education were
not compatible, and that further steps had to be taken to in-
sure that the school system advanced toward the goal of true
equality of educational opportunity.
Sl eee ee) wee
ee ee ee ee
ee ee ee ee? ee a ee ee 2 ere | ee Mer ey
a ee
The Board likewise had firm grounds for concluding that it
had a constitutional duty to adopt a desegregation plan.
The Fourteenth Amendment of the United States Constitu-
tion provides in Section 1 that “No state shall . . . deny to
any person within its jurisdiction the equal protection of the
laws.” (Emphasis supplied.) In Brown I, decided in 1954, the
Supreme Court found that “separate educational facilities” were
“inherently unequal,” and declared that state-sponsored segre-
gation violated the Equal Protection Clause of the Fourteenth
Amendment, Brown v. Board of Education of Topeka, 347
U.S. 483, 495, 98 L.Ed. 873, 74 S.Ct. 686. Subsequently, in
Brown II, the Court ordered desegregation “with all deliberate
speed,” 349 U.S. 294, 301, 99 L.Ed. 1083, 75 S.Ct. 753
(1955). Conscious of their obligations under the United States
Constitution, the people of the State of Michigan in 1963
adopted a new State Constitution containing the following
provisions: **
ARTICLE VIII. Education.
“Encouragement of education. Section 1. Religion, moral-
ity and knowledge being necessary to good government and
the happiness of mankind, schools and the means of education
shall forever be encouraged.
“Free public elementary and secondary schools; dis-
crimination. Section 2. The legislature shall maintain
and support a system of free public elementary and sec-
ondary schools as defined by law. Every school district
shall provide for the education of its pupils without dis-
crimination as to religion, creed, race, color or national
origin.
’S The following parallels this court's previous discussion of the
subject of the impact of Michigan law on desegregation suits in Oliver
v. Kalamazoo Board of Education, 346 F.Supp. 766, 778-779 (W.D.
Mich), aff'd. 448 F.2d 635 (6th Cir. 1971).
—_— a
In their explanatory address to the people required by the
Legislature,” the Delegates to the Michigan Constitutional
Convention stated, “The anti-discrimination clause is placed
in this [Education] section as a declaration which leaves no
doubt as to where Michigan stands on this question.”*° (Em-
phasis supplied. )
The Michigan Constitution of 1963 established a State
Board of Education with broad authority over public educa-
tion. Article VII, Section 3 of this Constitution provides:
Leadership and general supervision over all public ed-
ucation, including adult education and instructional pro-
grams in state institutions, except as to institutions of
higher education granting baccalaureate degrees, is vested
in a state board of education. It shall serve as the general
planning and coordinating body for all public education,
including higher education, and shall advise the legislature
as to the financial requirements in connection therewith.”
{Emphasis added.]
In addition, the Constitution created a Civil Rights Com-
mission to secure the equal protection of the civil rights of the
people of Michigan.
Article V, Section 29, of the 1963 Constitution of the State
of Michigan, provides as follows:
“Civil rights commission; members, term, duties, ap-
propriation. Sec. 29. There is hereby established a civil
rights commission which shall consist of eight persons,
not more than four of whom shall be members of the
same political party, who shall be appointed by the gov-
** Act No. 8, April 17, 1961, Michigan Public Acts of 1961, at 8.
*” Michigan Constitutional Convention of 1961-62, “What the
Proposed New State Constitution Means to You,” 77 (1962).
ae prea a
a
ernor, by and with the advice and consent of the senate,
for four-year terms not more than two of which shall ex-
pire in the same year. /t shall be the duty of the commis-
sion in a manner which may be prescribed by law to in-
vestigate alleged discrimination against any person because
of religion, race, color or national origin in the enjoyment
of the civil rights guaranteed by law and by this constitu-
tion, and to secure the equal protection of such civil rights
without such discrimination.”
Pursuant to their constitutional mandate, the State Board of
Education of Michigan and the Michigan Civil Rights Com-
mission declared the following:
“Joint Policy Statement of the State Board of Educa-
tion and Michigan Civil Rights Commission on Equality
of Education Opportunity.
“In the field of public education, Michigan’s Constitu-
tion and laws guarantee every citizen the right to equal
educational opportunities without discrimination because
of race, religion, color or national origin. Two depart-
ments of state government share responsibility for up-
holding this guarantee. The State Board of Education
has a constitutional charge to provide leadership and
general supervision over all public education, while the
Michigan Civil Rights Commission is charged with secur-
ing and protecting the civil right to education.
“In addition to the declaration of public policy at the
State level, the United States Supreme Court, in the case
of Brown v. Board of Education, ruled: ‘that in the field
of public education the doctrine of “separate but equal”
has no place. Separate educational facilities are inher-
ently unequal.’
“The State Board of Education and the Michigan Civil
Rights Commission hold that segregation of students in
— >)
educational programs seriously interferes with the achieve-
ment of the equal opportunity guarantees of this state and
that segregated schools fail to provide maximum oppor-
tunity for the full development of human resources in a
democratic society.
“The State Board of Education and the Civil Rights
Commission jointly pledge themselves to the full use of
their powers in working for the complete elimination of
existing racial segregation and discrimination in Michi-
gan’s public schools. It shall be the declared policy of
the State Board of Education that in programs admin-
istered, supervised, or controlled by the Department of
Education, every effort shall be made to prevent and to
eliminate segregation of children and staff on account of
race or color.
“While recognizing that racial imbalance in Michigan
schools is closely related to residential segregation pat-
terns, the State Board of Education and the Civil Rights
Commission propose that creative efforts by individual
schoo! districts are essential and can do much to reduce
or eliminate segregation. Local school boards must con-
sider the factor of racial balance along with other educa-
tional considerations in making decisions about selection
of new school sites, expansion of present facilities, re-
organization of school attendance districts, and the trans-
fer of pupils from overcrowded facilities. Each of these
situations presents an opportunity for integration.
“The State Board of Education and the Civil Rights
Commission emphasize also the importance of democratic
personnel practices in achieving integration. This requires
making affirmative efforts to attract members of minority
groups. Staff integration is a necessary objective to be
considered by administrators in recruiting, assigning, and
promoting personnel. Fair employment practices are not
only required by law; they are educationally sound.
NB hn hE RS OP all oe ert Bh gt Wt A ll Ct ia at lle BRS i 8 Net. mt — ROI Cae a
Yvan tales
—_— —
“The State Board of Education and the Civil Rights
Commission further urge local school districts to select
instructional materials which encourage respect for diver-
sity of social experience through text and illustrations and
reflect the contributions of minority group members to
our history and culture. A number of criteria are enu-
merated in ‘Guidelines for the Selection of Human Rela-
tions Content in Textbooks,’ published by the Michigan
Department of Education.
“The State Board of Education and the Civil Rights
Commission believe that data must be collected period-
ically to show the racial composition of student bodies
and personnel in all public schools, as a base line against
which future progress can be measured. Both agencies
will begin next month to assemble information on the
present situation.
“To implement these policies the State Board of Edu-
cation has assigned staff of the Department of Education
to work cooperatively with the Civil Rights Commission
and local school authorities for the purpose of achieving
integration at all levels of school activity. The Michigan
Civil Rights Commission also stands ready to assist local
school boards in defining problem areas and moving af-
firmatively to achieve quality integrated education.
“Adopted and signed this twenty-third day of April,
1966,” and it is signed by all of the members of the State
Board of Education and the Michigan Civil Rights Com-
mission. The Chairman of the Civil Rights Commission
at that time was The Honorable John Feikens, who is
presently a United States District Judge in the Eastern
District of Michigan.
This court finds that in adopting the desegregation plan of
June 29, 1972, the Lansing Board of Education acted in ac-
cane Silica
cordance with the mandate of the 1963 Constitution of the
State of Michigan and of the policy directives of the Michigan
State Board of Education and the Michigan Civil Rights Com-
mission.
The Lansing Board of Education is a state body, and as
such is directly subject to the requirements of the Fourteenth
Amendment of the United States Constitution.
In Brown I, supra, the Supreme Court, looking “to the
effect of segregation itself on public education,” 347 U.S., at
492, found that “separate education facilities are inherently
unequal,” /d., at 495, and, when sponsored by the state, are a
violation of the Equal Protection Clause of the Fourteenth
Amendment. /d. Where a constitutional violation has been
committed, the Supreme Court said in Brown II, supra, school
boards had a constitutional duty to desegregate “with all de-
liberate speed,” 349 U.S., at 301.
Since the Board of Education had immediate control over
all Lansing public elementary schools, and since the schools
were in fact segregated, the Board could reasonably conclude,
and in fact it did conclude, that it had a constitutional duty to
enact a desegregation program. Since the Board was invested
with immediate power to act, the conclusion would be the
same whether or not the segregation was originally and ex-
clusively the result of positive acts of the State. As Judge
Damon Keith observed in Davis v. School District of Pontiac:
“When the power to act is available, failure to take the
necessary steps so as to negate or alleviate a situation
which is harmful is as wrong as is the taking of affirma-
tive steps to advance that situation. Sins of omission can
be as serious as sins of commission.” 309 F.Supp. 734,
741-742 (E.D. Mich. 1970).
In this respect, the case before the court is analogous to
previous cases which have been before the Sixth Circuit Court
0 Oe Oe tte) op:
Ie, alt he OND OE TAA Te et Ine 08 tts em Lag
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om
of Appeals. In Detroit; the Board of Education, ca April 7,
1970, voluntarily adopted a plan establishing new high school!
attendance areas. Observing that implementation of the plan
would result in an improved racial balance in the schools af-
fected, the Sixth Circuit concluded that the plan was “the
voluntary action of the Detroit Board of Education in its effort
further to implement the mandate of the Supreme Court” in
school desegregation decisions handed down since 1954. Brad-
ley v. Milliken, 433 F.2d 897, 902 (6th Cir. 1970). Similarly,
in Kalamazoo, the Board of Education, on May 7, 1971,
adopted a plan for the redefinition of attendance areas designed
to increase substantially racial integration in previously segre-
gated schools. Noticing the similarity to Bradley, supra, this
court found that Kalamazoo’s integration plan was adopted
for the purpose of protecting rights guaranteed by the Four-
teenth Amendment. Oliver, supra, 346 F.Supp. at 780, 781.
In ruling on this preliminary injunction, this court does not
have to decide. and does not decide, whether the Lansing Board
of Education was under a constitutional obligation to adopt
its desegregation plan on June 29, 1972, or whether the plan
would meet that obligation if it did exist. Bradley, supra, 433
F.2d 904; Oliver, supra, 346 F.Supp. 779-780.
3. Nullification of the June 29, 1972 desegregation plan by
the Lansing Board of Education would have the result of re-
segregating the schools involved in Clusters One and Two,
and, as to all three clusters, would have the effect of impeding
and frustrating the implementation of a plan adopted to pro-
tect the constitutional rights of minority students under the
Fourteenth Amendment.
Absent a showing of massive population shifts since 1971-72,
there can be no doubt that the abolition of Clusters One and
Two would significantly increase racial concentration in the
schools affected, relative to the 1972-73 school year, and return
them to their formerly segregated state. It is obvious that aboli-
— vm
tion of these two clusters would frustrate the implementation of
the Board’s plan to protect constitutional rights.
Cluster Three, scheduled to be implemented at the start of
the 1973-74 school year, was adopted to protect and advance
the constitutional rights of minority students affected. Nullifica-
tion of the June 29, 1972 plan would have the effect of im-
peding and frustrating this program to protect and advance the
constitutional rights of the minority students involved. Oliver,
supra, 346 F. Supp. at 780, 781.
4. Under the existing circumstances, the nullification of the
June 29, 1972 desegregation plan by the Lansing Board of
Education is unconstitutional state action to impede, delay, ob-
struct, and nullify a program lawfully adopted for the purpose
of protecting rights guaranteed by the Fourteenth Amendment.
Bradley, supra, 433 F.2d 902-903; Oliver, supra, 346 F. Supp.,
780, 781, aff'd. 448 F.2d 635.
In Bradley, supra, the Detroit Board of Education adopted
a plan designed to provide a better racial balance in the high
schools. The legislature of the State of Michigan then passed
a law the effect of which was to rescind or nullify the Detroit
desegregation plan. Citing a number of Supreme Court and
lower court decisions, the Sixth Circuit held the legislative act
unconstitutional. The Court emphatically declared:
“State action in any form, whether by statute, act of the
executive department of a State or local government, or
otherwise, will not be permitted to impede, delay or frus-
trate proceedings to protect the rights guaranteed to mem-
bers of all races under the Fourteenth Amendment.” 433
F.2d 902.
The Kalamazoo case involved a set of facts substantially
similar to Bradley, except that it concerned the attempted nulli-
fication of a voluntarily adopted desegregation plan by the Kala-
mazoo School Board, instead of by the legislature. In granting
ss
=
the motion for a preliminary injunction restraining the nullifica-
tion, this court, relying on Bradley, found the attempted nullifi-
cation to be unconstitutional state action which would impede
the efforts of the Board to protect rights guaranteed by the
Fourteenth Amendment, Oliver, supra, 346 F. Supp., 780, 781.
This Court's decision to grant the preliminary injunction was
upheld on appeal. Oliver, supra, 448 F.2d 635.
The significant facts in the present case relative to the nullifi-
cation of the desegregation plan are virtually identical to those
in the Kalamazoo case in all significant respects. As in Kala-
mazoo, the Lansing schools were formerly segregated and the
Board of Education adopted a desegregation plan in order to
protect what is reasonably believed to be the constitutional
rights of minority students. As in Kalamazoo, the obvious effect
of the nullification of the desegregation plan would be to impede
and frustrate the protection of the constitutional rights of all
the minority students affected by the program. The Kalamazoo
case, as the present one, was at the preliminary injunction stage
when this ruling was made.
5. On the basis of the foregoing findings and conclusions,
the court has concluded that the grant of the preliminary injunc-
tion is appropriate in this case.
Giving effect to the Lansing Board of Education’s February
1, 1973 resolutions nullifying the June 29, 1972 desegregation
plan would irreparably harm the plaintiffs because it would de-
prive them of rights guaranteed by the Fourteenth Amendment
of the United States Constitution and implemented by the anti-
discrimination provision of the 1963 Constitution of the State
of Michigan, Article VIII, Section 2. The rights of the plaintiffs
and the members of their class are to be restored to their status
prior to the adoption of the resolution of February 1, 1973, and
these rights are to be preserved pending a full hearing on the
merits, or further order of the court.
an tiiien
The plaintiffs have made a sufficient showing of a likelihood
of success on the merits.
There is no agreement among the parties as to what the plain-
tiffs must prove in order to prevail on the merits. The plaintif*s
contend that they need not establish de jure segregation in Lans-
ing, but they have offered proof of several de jure acts in case
they are wrong in this contention. The defendant contends that
the plaintiffs must establish that it intentionally created and main-
tained a dual school system in order to be entitled to any remedy.
Assuming without deciding that the plaintiffs must ultimately
prove de jure segregation in order to be entitled to a remedy,
the court concludes that the evidence indicates that the proba-
bility that the Lansing Board of Education has engaged in acts
of de jure segregation. Specifically, the defendant appears inten-
tionally to have frozen Main Street School boundaries to contain
Blacks in that school and to avoid integrating Verlinden School;
to have operated a special transfer system with discriminatory
effect; to have in the past engaged in discriminatory hiring prac-
tices; and intentionally to have assigned a disproportionate num-
ber of minority teachers to minority schools. This conclusion is
consonant with Keyes, supra.
While this court has had to make some tentative assessments
of the evidence for the purposes of ruling on the motion fcr a
preliminary injunction, these assessments are not in the least
ultimately dispositive of the issue of de jure segregation since all
the evidence has not yet been submitted to the court.
Although each motion for a preliminary injunction must be
carefully considered on its own merits, the court notes that many
of the relevant facts and most of the applicable law in this case
are very closely analogous to those in the Kalamazoo case, Oliver,
supra. Since the Sixth Circuit affirmed this court’s grant of a
preliminary injunction in Oliver, supra, 448 F.2d 635, this court
* os weno
—= —
has been especially attentive to the basic principles of Oliver in
exercising its discretion in this case.
In granting the preliminary injunction in this case, the court
emphasizes that the June 29, 1972 desegregation plan was wholly
and voluntarily drawn up by the Lansing Board of Education
and school authorities with local conditions exclusively in mind.
Since the local Board is more familiar with Lansing than the
court, this court has presumed, for the purposes of the prelimi-
nary injunction, that the plan was well suited to protect and ad-
vance the rights of minority students in the Lansing School Dis-
trict. Consequently, the preliminary injunction does not move
a single step beyond what the local authorities originally pro-
mulgated, but seeks only to restrain the Board from irreparably
harming the plaintiffs and the members of their class pending
final decision on the merits.
It Is Therefore Ordered that the February 1, 1973 resolutions
of the Lansing Board of Education reversing the Policy State-
ment on Equal Educational Opportunity and rescinding the de-
segregation plan of June 29, 1972, are unconstitutional, void
and of no effect. The Board of Education, its agents and other
persons acting in concert with them are hereby enjoined and
restrained from giving any force or effect to these February 1,
1973 resolutions.
It Is Further Ordered that the June 29, 1972 Lansing Board
of Education plan be reinstated and that its provisions be im-
plemented at the appropriate times. Specifically, Cluster One,
involving Main, Barnes, Elmhurst and Lewton Elementary
Schools, and Cluster Two, involving Maple Hill, Michigan,
Cavanaugh and Everett Elementary Schools, are to be imple-
mented during the 1973-74 school year and thereafter as or-
dered, just as they were during the 1972-73 school year. Cluster
Three, involving Cedar, Grand River, Oak Park, Post Oak,
and High Elementary Schools, is to be implemented at the be-
—_— Tn
ginning of the 1973-74 school year, and thereafter as ordered,
just as originally scheduled in the June 29, 1972 plan. The
Board is enjoined to take all steps necessary to ensure that
Clusters One, Two and Three will go into operation at the be-
ginning of the 1973-74 school year. The Board is also enjoined
to implement the various subsidiary aspects of the June 29,
1972 plan, as they relate to the operation of Clusters One, Two,
and Three.
It Is Further Ordered that the Lansing Board of Education
make immediate inquiries to the appropriate agencies of the
United States Government to determine whether federal funds
are or may be available to assist the Lansing School District in
implementing the order of this court. If any such funds are or
may be available, the Board is ordered to prepare the necessary
applications as quickly as possible and to submit them as soon
as possible.
It-Is Further Ordered that the Board carry out all aspects of
the order of this court in good faith.
It ls Further Ordered that this order shall take effect immedi-
ately, and shall remain in effect until the further order of this
court, or until a final resolution of this cause on the merits.
Dated: August 10, 1973.
Noel P. Fox
Chief District Judge
—
OPINION OF THE COURT
(U.S. Court of Appeals—Sixth Circuit)
(Filed October 3, 1973)
No. 73-8119
National Association for the Advance-
ment of Colored People, Lansing )
Branch, et al., Appeal from the
Plaintiffs-Appellees, United States Dis-
v. trict Court for the
Western District of
Lansing Board of Education, a Body Michigan.
Corporate, et al.,
Defendants-Appellants. |
Before: Phillips, Chief Judge, Peck and Lively, Circuit Judges.
Per Curiam. This case is before the Court on an emergency
application for stay pending appeal of an order of the District
Court granting a preliminary injunction in a school desegrega-
tion case. The injunction directs the Board of Education of
Lansing, Michigan to reinstate a desegregation plan adopted by
that Board on June 19, 1972. Schools in Lansing tentatively
are scheduled to commence on September 6, 1973.
The record shows that as early as 1964, the Lansing Board of
Education became concerned because certain elementary schools
in that system were in process of becoming segregated. During
the ensuing years certain study groups and ad hoc committees
were appointed to study the problem and to make reports to
the Board of Education. These reports are summarized in some
detail in the preliminary injunction issued by District Judge
— —
Noel P. Fox in the present case. Based in part on the reports of
such studies and after numerous public hearings and extensive
public debate, the Lansing Board of Education on June 19,
1972, adopted a desegregation plan, commonly known as the
“Cluster Plan”, involving students in grades 3 through 6 in 13
of Lansing’s 50 elementary schools. This plan does not involve
high schools or junior high schools.
The “Cluster Plan” met with public opposition resulting in a
recall election directed against the five members of Education
who supported it. All five members of the Board who voted for
the “Cluster Plan” were recalled.
Five new Board members were elected in January, 1973. At
the first regularly scheduled meeting of the Board as reconsti-
tuted, the “Cluster Plan” was rescinded effective at the end of
the 1972-73 school year. The District Court found that this
rescission would have the effect of reassigning many Lansing
elementary students back to their previously segregated schools.
It is the established rule of this Circuit that the granting or
denial of a preliminary injunction will not be disturbed on ap-
peal unless contrary to some rule of equity or the result of im-
provident exercise of judicial discretion. Oliver v. School Dis-
trict of City of Kalamazoo, 448 F.2d 635 (6th Cir. 1971) and
cases therein cited.
In a somewhat analogous situation which arose in a school
desegregation case involving the public schools of Detroit, this
Court held that District Judge Stephen J. Roth did not abuse
his discretion in denying an application for a preliminary in-
junction. Bradley v. Milliken, 433 F.2d 897, 904 (6th Cir.
1970). This Court has upheld the determinations of District
Courts in school desegregation cases, as well as other cases,
when properly supported by the pleadings and evidence, even
though different results may be reached in different cases. See,
Goss ¥. Board of Education, — F.2d — (6th Cir. (en banc)
July 18, 1973).
— ie
We hold that the District Judge did not abuse his discretion
in granting the injunction on the record in the present case.
The Board of Education further urges the granting of a stay
on the authority of the “Broomfield Amendment,” Public Law
92-318, 86 Stat. 235, §803, known as the “Education Amend-
ments Act of 1972.” We hold that this statute has no application
in the present case. See, Drummond v. Acree, 409 U.S. 1228,
93 S. Ct. 18 (1972).
This case is beofre this Court on appeal, the notice of appeal
having been filed August 14, 1973. The order of the District
Court granting the preliminary injunction is an appealable or-
der. (28 U.S.C. §1292(a)). The emergency application for stay
pending appeal is denied. Further, this Court concludes that it
is manifest that the questions on which the decision of this case
depends do not require further argument. Rule 8, Sixth Circuit
Rules. See, Keyes v. School District 1, — U.S. —, 41 U.S.L.W.
5002 (July 21, 1973); Bradley v. Milliken, —F.2d — (6th
Cir. (en banc) June 12, 1973); Mapp v. Board of Education
of Chattanooga, 477 F.2d 851 (6th Cir. (en banc) April 30,
1973); Davis v. School District of City of Pontiac, 433 F.2 573 >
(6th Cir.), cert. denied, 404 U.S. 913 (1971).
Either following the plenary hearing on the merits or before
the plenary hearing, the District Judge specifically is authorized
to make such modifications in the plan implemented by the
interlocutory injunction as he may find to be appropriate. Kelly
v. Metropolitan Board of Education of Nashville, 463 F.2d 732
(6th Cir. 1972), cert. denied, 409 U.S. 1001; Oliver v. School
District of City of Kalamazoo, supra, 448 F.2d at 636.
Affirmed.
— von
OPINION
(U. S. District Court—Western District of Michigan—
Southern Division)
(National Association for the Advancement of Colored People,
etc., Et Al., Plaintiffs,
VS.
Lansing Board of Education, Etc., Et Al., Defendants)
(Filed December 19, 1975)
This school desegregation suit was commenced in 1972 to
determine whether the Lansing Board of Education violated
the constitutional rights of the district's schoolchildren by deny-
ing them equal educational opportunity on the basis of race.
The court recognizes that the issues involved are of par-
ticular interest and vital significance to all Lansing area citi-
zens. Therefore, this opinion is aimed at communicating the
factual and legal bases for the court’s decision, not only to the
parties and reviewing courts, but also to the community. For it
is the hope of the court that a sincere civic involvement in im-
plementing the terms of this decision will help improve the
school system and strengthen the community, for citizens of all
races, and for their children.
The jurisdiction of this court is properly invoked under 28
USC Sections 1331(a), 1343(3), and (4), this being a suit in
equity authorized by 42 USC Sections 1983, 1988 and 2000d.
Jurisdiction is also invoked under 42 USC Section 1981 and
further invoked under 28 USC Sections 2201 and 2202, this
being a suit seeking a declaration that the February |, 1973
ee
—_ ae
resolutions of the Lansing Board of Education are unconstitu-
tional, and seeking also other relief.
Individual plaintiffs are children or parents of children who,
as a result of the June 29, 1972 desegregation plan adopted
by the Lansing Board of Education, attend desegregated schools.
Plaintiff, National Association for the Advancement of Colored
People, Lansing Branch, is an unincorporated association which
sues on behalf of its membership who are members of the plain-
tiff class. Plaintiffs are bringing this action on their own behalf
and on behalf of all persons in the City of Lansing similarly
situated. The class action is proper under Fed. R. Civ. P. 23.
Because of the notoriety of the case in Lansing, the members
of the plaintiffs’ class have adequate notice.
The original and supplemental complaints alleged that actions
of the Lansing Board of Education, especially the rescission
of the June 29, 1972 desegregation plan (by its resolutions of
February 1, 1973), were purposely taken to achieve segregative
effects, in violation of the Thirteenth and Fourteenth Amend-
ments to the United States Constitution, and the Michigan Con-
stitution. Plaintiffs’ allegations that defendant has violated Michi-
gan’s State Constitution may properly be entertained by this
court under the doctrine of pendent jurisdiction.
Following a full evidentiary hearing, the court issued a pre-
liminary injunction on August 10, 1973, restraining the defend-
ant Board of Education from implementing certain of its resolu-
tions of February 1, 1973. The implementation of these resolu-
tions would have effectively revised the Board’s formal Policy
Statement on Equal Educational Opportunity and would have
nullified the desegregation plan which was voluntarily adopted
by the Board on June 29, 1972 and partially implemented by
it beginning in September 1972. The issues presently before the
court are whether this preliminary relief should be made per-
— =
manent, and whether school board officials are responsible for
segregative conditions in the Lansing school system requiring
further remedial action.
The essence of plaintiffs’ complaint in this case is an allega-
tion of constitutional violations involving an inequity or in-
equality in public education deliberately created, maintained,
and perpetuated by school officials. For reasons discussed in
detail throughout this opinion, the court finds that the Lansing
elementary schools' have in fact been racially segregated and
that these segregative conditions are being perpetuated even
now. The court finds as a matter of demonstrable fact and
established law that this condition of segregation resulted in
inequitable and unequal educational opportunities for Black
and White students. Educational inequity is a necessary conse-
quence of racial discrimination in and separation of the schools.
The reasons which explain this fact are complex, being intri-
cately rooted in the tortured history of race relations of this
nation. Over the years, Black experience has been unique in
American history. No other racial or ethnic minority was sys-
temmatically enslaved by the White majority. Rather than having
suffered the temporary discomfort and annoyance of social
ostracism common to first-generation European ethnic groups,
Blacks for hundreds of years were subjected to legally and
socially institutionalized economic, spiritual, psychological, so-
cial and educational deprivation.
It is appropriate to note Gunnar Myrdal’s observation on
slavery in his classic, An American Dilemma, in his chapter on
“Inequality of Justice:”
1 Lansing secondary schools were not made an issue in this case,
since they were integrated in 1966 pursuant to a plan adopted by the
Board of Education. The Board successfully defended this plan in
litigation brought against it. Jipping, et al. v. Lansing School Dis-
trict, 15 Mich. App. 441 (1968), leave to appeal denied by Supreme
Court of Michigan, 382 Mich. 760 (1969).
<<
“Under slavery the Negro was owned, bought, and sold
as property; he was worked, housed, fed, and prevented
from doing what he wished if it was contrary to the in-
terests of his master. In general, the Negro slave had no
‘rights’ which his owner was bound to respect. Even if in
legal theory the slave was given the status of a person under
the law as well as the status of property, it was the latter
viewpoint which, in practice, became the determining one.
In the very relationship between master and slave it was
inherent that—without recourse to courts—force and
bodily punishment and, under certain circumstances, even
the killing of the slave was allowed. *. . . (A)Il slaveholders
are under the shield of a perpetual license to murder,’
exclaimed Hinton R. Helper in his unsparing onslought
on the plantation class and the slavery institution. Thomas
Jefferson saw clearly the moral danger of the slavery in-
stitution:
‘The whole commerce between master and slave
is a perpetual exercise of the most boisterous pas-
sions, the most unremitting despotism on the one part,
and degrading submissions on the other. Our children
see this, and learn to imitate it. . .. The man must be
a prodigy who can retain his manners and morals un-
depraved by such circumstances. And with what
execration should the statesman be loaded, who, per-
mitting one half the citizens to trample on the rights
of the other, transforming those into despots, aiid these
into enemies, destroys the morals of one part, and the
amor patriae of the other. . . . {Can} the liberties of a
nation be thought secure when we have .-.:noved their
only firm basis, a conviction in the minds of the people
that these liberties are the gift of God? That they are
not to be violated but with His wrath? Indeed, |
tremble for my country when I reflect that God is just;
—
that His justice cannot sleep forever. “? (Emphasis
supplied. )
Unfortunately, White attitudes originally attendant to the in-
stitution of slavery persisted after the adoption of the Thirteenth
Amendment. Although legal slavery died, Americans created,
during the four decades after the Civil War, a new legal and
social pattern of discrimination based upon race. Many of these
forms of institutionalized repression have persisted to the present,
with the result that Black Americans are often denied the equal-
ity to which they are entitled in our constitutional democratic
republic.
Inextricably intertwined with the dominating inescapable
heritage of slavery and all its attendant dehumanizing ramifica-
tions, every aspect of the human condition of many Black people
in America today is almost irremediably repressed. These con-
tinuing inhuman conditions of uncivilized servitude and inferior
status have become known as vestiges of slavery.
The effects of this historical status of subservience and for-
malized inferiority continue to be pervasive. Past barriers to
personal fulfillment and attainment cannot reasonably be mini-
mized in assessing current impediments to equal opportunity.
In the context of past officially sanctioned and present subtly in-
sidious and invidious private and public racial discrimination
against Black people as a class, a school environment which for
whatever reason involves marked, disproportionate racial con-
centration inherently generates acute consciousness of race. As
situated in segregated surroundings, this inflated consciousness
triggers artificial, unrealistic personal reactions based on mis-
conceived but, in view of historical predicates, understandable
individual perceptions of the significance of racial differences.
* At 530-531 (1944).
—_— a
Although disproportionate racial concentration of Black chil-
dren in the schools might not have adverse consequences in all
times and places, it certainly does in the context of the present
forms of social organization, which are conditioned by legacy of
slavery. One of the adverse effects of racial segregation is in the
area of individual achievement.
Segregated Black children tend to infer that they are isolated
from the White majority because of their race, and, drawing on
their observations of the deprivations experienced by Black
adults, they also tend to infer that their own potential is limited
because of their race. It is not surprising that Black children
have evidenced reduced self-esteem in a segregated environment
and concomitant diminished motivation to succeed. The cultur-
ally-induced lack of self-esteem and diminished motivation in
turn operate to measurably reduce achievement.
Individual growth in the educational system occurs not only
in the area of achievement, the acquisition of cognitive skills,
but also in the areas of social and psychological development.
Segregation is perhaps more detrimental to the Black student's
social and psychological development than to his achievement
level. Finding himself isolated to a significant degree from the
bulk of the White population, witnessing the disparate superiority
of the status of White adults over Black adults in many circum-
stances, and perhaps further observing a pronounced under-
representation of Blacks in positions of leadership in his school,
where this is the case, the Black child may become reluctant to
assert himself in the presence of Whites and unduly pessimistic
concerning his ability to interact or compete successfully with
Whites of his own generation. *
Teacher reaction to segregated educational circumstances
frequently operates to the disadvantage of students. Dubbed by
* 1 U.S. Commission on Civil Rights, Racial Isolation in the
Public Schools 114 (1967).
——
some researchers as a kind of “self-fulfilling prophecy,” the im-
pact on Black students of teacher expectations based on race
has been demonstrated by several studies. Affected by racial
stereotypes as well as by actual patterns of disparate Black-White
performance levels in the general society, teachers may tend
to “teach down” to Black children, expecting and therefore
eliciting low levels of performance.
The negative impact of racially segregated schools is not con-
fined exclusively to Black students. White students may also
react to racial isolation in ways harmful to themselves. White
pupils are apt to form an irrational attitude of inherent superior-
ity and are apt to develop an unrealistic concept of homogeneous
society in which certain values enjoy universal acceptance. Simi-
larly, because of their cultural isolation, segregated White chil-
dren tend to lose sight of those fundamental values of our con-
stitutional system which, while respecting individual differences,
favor free access and wide social mobility to all persons regard-
less of race, creed, or national origin, and which thereby promote
a healthy interchange among persons of different backgrounds.
The state of mind fostered by racial and cultural isolation
heightens racial conflicts and divisiveness in the country and
thus adversely affects the domestic tranquility the Constitution
was designed to promote. White students who have been edu-
cated in segregated public schools are thus ill-prepared to deal
with the pluralistic society which actually exists in the adult
world beyond the classroom.
In part because of segregated schools, as Charles E. Silberman
has written:
“{T]he public schools are failing dismally in what has
always been regarded as one of their primary tasks—in
Horace Mann’s phrase, to be ‘the great equalizer of the con-
ditions of men,’ facilitating the movement of the poor and
disadvantaged into the mainstream of American economic
—=
and social life. Far from being ‘the great equalizer,’ the
schools help perpetuate the differences in conditions, or at
the very least, do little to reduce them. /f the United States
is to become a truly just and humane society, the schools
will have to do an incomparably better job than they are
now doing of educating youngsters from minority-group
and lower-class homes.”* (Emphasis supplied. )
The subject of race in America and the consequences of racial
segregation in the schools might be explored at much greater
length. However, it clearly appears that in the context of modern
America, segregated education is detrimental to both Black and
White students, creating specially for Black students, psycho-
logical and social difficulties which have a substantial adverse
impact on overall individual development. Segregated educa-
tion plainly denies equal educational opportunity.
The findings made by the court in this case parallel those
made by the United States Supreme Court in Brown v. Board
of Education, 347 U.S. 483, 98 L.Ed. 873, 74 S.Ct. 686
(1954) [Brown I]. In addressing the precise issue of the effect
of racial separation on grade and high school students the Su-
preme Court in Brown quoted with approval language from
the District Court as follows:
“ “Segregation of white and colored children in public
schools has a detrimental effect upon the colored children.
The impact is greater when it has the sanction of law;
for the policy of separating the races is usually interpreted
as denoting the inferiority of the negro group. A sense of
inferiority affects the motivation of a child to learn. Segre-
gation with the sanction of law, therefore, has a tendency
to (retard) the educational and mental development of ne-
* Quoted in Senate Select Committee on Equal Educational Op-
portunity, Toward Equal Educational Opportunity, Sen. Rep. No.
ory 92nd Cong., 2d Sess., Part III. Inequity in Education 95
—_— =
gro children and to deprive them of some of the benefits
they would receive in a racially integrated school system.”
347 U.S. at 494. (Emphasis supplied.)
Although much may be said about the fact that Brown in-
volved obvious and conspicuous state action separating Blacks
and Whites by statute, with respect to the simple issue of whether
racial separation fundamentally poses a situation of inequity,
Brown was and is unequivocal. “Separate educational facilities
are inherently unequal.” 347 U.S. at 495.
II
The Fourteenth Amendment of the United States Constitution
declares, “No state shall . . . deny to any person within its
jurisdiction equal protection of the laws.”® The law is clear
that official action at any hierarchial level which denies the
plaintiffs equal protection of the laws is unconstitutional. Ex
parte Virginia, 100 U.S. 339, 346-347 (1880). It is established
that “under the Constitution and laws of Michigan, the public
school system is a State function and that local school districts
are instrumentalities of the State created for administrative con-
venience.”® Members of loca! school boards as well as mem-
bers of the State Board of Education and the Superintendent
of Public Instruction are State officers, agents of the State in
every Official respect.
Before entering upon the duties of their respective offices,
all are required by the Michigan Constitution of 1963, Art. II,
> Pertinent excerpts from Supreme Court cases interpreting the
Fourteenth Amendment are included in Appendices. App. A.
6 Bradley v. Milliken, 484 F.2d 215 (6th Cir., 1973) (en banc).
The analysis of State law concerning education in Michigan at 245-
249, is adopted and incorporated by reference for the purposes of
this opinion. App. B.
=
Sec. 1, to take and subscribe to the following oath or affirma-
tion: “I do solemnly swear (or affirm) that I will support the
Constitution of the United States and the constitution of this
state, and that I will faithfully discharge the duties of the office
of . . . according to the best of my ability.” Each officer thus
undertakes a personal and official responsibility to abide by the
Constitution of the United States and of Michigan.
The principal issue in this case is whether the defendant State
officers have denied the plaintiffs equal protection of the laws.
The Fifth Circuit, which has a vast experience with school
desegregation cases, recently rejected “the anodyne dichotomy
of classical de facto and de jure segregation.” Cisernos v. Cor-
pus Christi Independent School District, 467 F.2d 142, 148
(1972). That court held that a finding of unlawful segregation
would be supported by two distinct factual determinations.
“First, a denial of equal educational opportunity must be found
to exist, defined as racial or ethnic segregation. Secondly, this
segregation must be the result of state action.” While the spe-
cific quantity of state action and the severity of the segregation
necessary to sustain a constitutional violation was left to be
dealt with on a case by case basis, the court noted that, as a
general rule, it “need only find a real and significant relation-
ship, in terms of cause and effect, between state action and the
denial of educational opportunity occasioned by the racial and
ethnic separation of public school students.” Id. See Ap-
pendix C.
However, the Supreme Court, in Keyes v. School District
No. 1, 413 U.S. 189 (1973), assumed for the purposes of that
case that a finding of de jure segregation was required to sup-
port a finding of a constitutional violation. This court follows
the Supreme Court for the purposes of the present case, and,
like the Supreme Court, leaves for further adjudication in other
cases the question of whether something other than de jure
=
segregation constitute a violation of the Fourteenth Amend-
ment.
As a first step toward resolving this issue, the court has had
to ascertain the legal standards to be applied to determine
whether the defendants have been guilty of de jure segregation.‘
Although not as fully refined as the common law torts, the
major legal elements and conditioning factors of the constitu-
tional tort of de jure segregation® are reasonably clear.
“A finding of de jure segregation requires a showing
of three elements: (1) action or inaction by public officials
(2) with a segregative purpose (3) which actually results
in increased or continued segregation in the public schools.”
Oliver, supra, footnote ..., 508 F.2d at 182.
Ascertaining the Board's intentions is certainly difficult, but
it is not at all impossible. The starting place is the standards
and processes evolved by the common law for determining the
relevant state of mind of the defendant, or defendants, in an
intentional tort suit. The Supreme Court and the Sixth Circuit
Court of Appeals have said that one of the Congressional stat-
utes relied upon by the plaintiffs in this case, 42 USC Section
1983, should be read against the background of tort liability
that makes a man responsible for the natural consequences of
his actions. Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct.
473, 484, 5 L.Ed. 2d 492 (1961); Pierson v. Ray, 386 US.
547, 556, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288 (1967);
Puckett v. Cox, 456 F.2d 233, 235 (6th Cir. 1972); see
* The analysis of this court in this regard closely parallels its pre-
vious treatment of the issue in Oliver v. Kalamazoo Board of Edu-
cation, 368 F.Supp. 143 (1973); aff'd. sub. nom. Oliver v. Michigan
State Board of Education, 508 F.2d 178 (1974), cert. denied 421
U.S. 963 (1975).
* While the substantive requirements of the constitutional tort are
derived from the Fourteenth Amendment and to a lesser extent from
various implementation of statutes, this court has jurisdiction by vir-
tue of several jurisdictional statutes passed by Congress.
—
Fritzke v. Shappell, 468 F.2d 1072 (6th Cir. 1972). In gen-
eral, it is reasonable to infer that people intend the natural and
probable consequences of acts knowingly done or knowingly
omitted. Thus, in a case tried to a jury, it would be proper to
instruct that:
“In the absence of evidence in the case which leads the
jury to a different or contrary conclusion, you may draw
the inference and find that any person involved intended
such natura! and probable consequences as one standing
in like ciccumstances, and possessing like knowledge,
should reasonably have expected to result from any act
knowingly done, or knowingly omitted by such person. An
act, or failure to act, is knowingly done, if done volun-
tarily and intentionally, and not because of mistake or
accident or other innocent reason.”
Since intent may be proved by direct, indirect or circumstantial
evidence, all the facts and circumstances in evidence in the case
which may aid in the determination of state of mind may be
considered.'"
In the recent case of Bronson v. Board of Education, No.
75-1244, September 24, 1975, the Sixth Circuit confirmed the
course set in Oliver and further elucidated the meaning o} the
intent requirement.
“In Keyes, the Court emphasized that the ‘differentiating
factor between de jure and so-called de facto segregation
. IS purpose or intent to segregate. 413 U.S. at 208
(emphasis in original) . . . (T)he Supreme Court appears
* 2. Devitt and Blackmar, Federal Jury Practice and Instructions,
note 16 at Sec. 74.03. The term “other innocent reason” at the end
of the final sentence refers in this context not to defenses in the area
of causation or to such affirmative defenses as consent or self-defense,
but rather refers to matters analogous to mistake or accident which
would tend to negate knowledge or affirmative purpose.
1 6.
— ve
to have held that intent is synonymous with purpose in
determining whether a racial imbalance which is found
to exist in a school system that was never segregated by
state law results in a constitutional violation. In a school
system which was previously segregated by the state law
there is no requirement that intent be shown. The state
action requirement of the Fourteenth Amendment is not
on issue. On the other hand, in a school system which has
never been operated under a state requirement of separa-
tion of the races, de facto segregation may only be treated
as resulting from state action in violation of the Fourteenth
Amendment if it is shown to result from intentional acts,
ontission or policies of public officials or public bodies . . .
“(A) court may infer intent, which is a subjective fact
not easily proven, from evidence of racial imbalance ac-
companied by acts or omissions of a school board, the
natural and probable result of which is to produce or
perpetuate a segregated school system.” (Citing Oliver,
supra, and Berry v. Benton Harbor School District, 505
F.2d 238 (1975)). Bronson, slip opinion, pp. 7-8.
Under Keyes, in an intentional case, to be guilty of a con-
stitutional violation, the state and/or local authorities must
have in fact caused or maintained the segregated conditions
which are complained of. Under this theory, it is a complete
defense that the authorities have not at all caused or maintained
these conditions. Similarly, the defendants will not be held
legally responsible if they have only occasionally committed
segregative acts and these acts are of trivial importance and
bear no significant relation to the modern situation.
Rather, the standard must be that the defendants to a sub-
stantial degree contributed to the creation or maintenance of
segregated schooling in Lansing. In a tort case, it would be
proper to instruct the jury on the issue of proximate cause as
follows: “An injury or damage is proximately caused by an act
—_ =
or a failure to act, whenever it appears from the evidence in the
case, that the act or omission played a substantial part in bring-
ing about or actually causing the injury or damage; and that
the injury or damage was either a direct result or a reasonably
probable consequence of the act or omission.”"!
It is useful to note, as the Sixth Circuit did in Oliver, supra,
at 182-183, that “(w)hen constitutional rights are involved,
the issue is seldom whether public officials have acted with evil
motives or whether they have consciously plotted with bigotry
in their hearts to deprive citizens of the equal protection of the
laws. Rather, under the test for de jure segregation, the ques-
tion is whether a purposeful pattern of segregation has mani-
fested itself over time, despite the fact that individual official
actions, considered alone, may not have been taken for segre-
gative purposes and may not have been in themselves constitu-
tionally invalid. Davis v. School District of Pontiac, 443 F.2d
573, 576 (6th Cir., cert. denied, 404 U.S. 913 (1971)).
Benevolence of motives does not excuse segregative acts. As
the Supreme Court stated in Wright v. Council of City of
Emporia, 407 U.S. 451, 461 (1972), ‘The “dominant purpose”
test finds no precedent in our decisions . . . The existence of a
permissible purpose cannot sustain an action that has an im-
permissible effect.’ ”
In a similar vein, the Second Circuit has observed:
“. . . (W)e believe that a finding of de jure segregation
may te based on actions taken coupled with omissions
made, by governmental authorities which have the natural
and foreseeable consequences of causing educational segre-
gation. * * *
“To say that the foreseeable must be shown to have
been actually foreseen would invite a standard almost im-
'! 2 Devitt and Blackmar, supra, Sec. 73.18 (2d ed. 1970). Of
course, there might be more than one “proximate cause.” See pro-
posed jury instruction, Id. at Sec. 73.19.
—_—
possible of proof save by admissions. When we consider
the motivation of people constituting a school board, the
task would be even harder, for we are dealing with a col-
lective will. It is difficult enough to find the collective
mind of a group of legislators. See Palmer v. Thompson,
403 U.S. 217, 224-25 (1971); and see Keyes v. School
District No. 1, supra, 413 U.S. at 233-34 (Powell, J.,
concurring). It is even harder to find the motivation of
local citizens, many of whom would be as reluctant to
admit that they have racial prejudice as to admit that they
have no sense of humor.
“Speaking in de jure terms does not require us then,
to limit the state activity which effectively spells segre-
gation only to acts which are probably motivated by a de-
sire to discriminate. * * * Aside from the difficulties of
ferreting out a collective motive and conversely the injus-
tice of ascribing collective will to articulate remarks of
particular bigots, the nature of ‘state action’ takes its
quality from its foreseeable effect. The Fourteenth Amend-
ment is not meant to assess blame but prevent injustice.”
(Emphasis supplied.) Hart v. Community School Board
of Education, N.Y. School Dist. No. 21, 512 F.2d 37 (2nd
Cir. 1975), cited in U.S. v. School District of Omaha, No.
74-1964, 74-1993 (8th Cir., filed Jume 12, 1975).
Cf. Oliver, supra.
In order to fairly assess the alleged actions and inactions
of the defendants, and to determine what the foreseeable con-
sequences of these acts and omissions were, it is necessary to
consider the conditions existing when they occurred. To this
end, the court has carefully evaluated all of the voluminous
testimony and numerous exhibits put into evidence in this case
since it began.
=
For purposes of this opinion, the court need comprehensively
review only those developments in Lansing public education
which have taken place since the middle 1950's, with special
attention to the elementary schools. The most significant de-
velopments have involved the growth of a pronounced racial
concentration in some West Side elementary schools, the growth
of a pronounced ethnic concentration in the north-central sec-
tion of the city, and the varied responses of the Lansing Board
of Education to these disturbing situations.
In particular the court has focused its attention on a number
of acts and policies of the school board said by the plaintiffs
to be evidence of de jure segregation. Chief among these are
the rescission of the “cluster plan” for desegregating elementary
schools, adopted by the Board on June 29, 1972, and the
location and intended use of the new Vivian Riddle Elementary
School, which is presently under construction. Other policies
scrutinized by the court include those relating to mobile units,
medical transfers, attendance boundaries, faculty hiring and as-
signment, physical facilities, and racial integration efforts involv-
ing transportation primarily of black children.
The Supreme Court in Keyes, supra, at 196, stated: “What
is Or is not a segregated school will necessarily depend on the
facts of each particular case. In addition to the racial and
ethnic composition of a school’s student body other factors
such as the racial and ethnic composition of the faculty and
staff and the community and administration attitudes toward
the school must be taken into consideration.” Previously the
Court wrote:
“In Green (Green v. County School Board, 391 U.S.
431, 20 L.Ed.2d 716, 88 S.Ct. 1689 (1968)], we pointed
out that existing policy and practice with regard to faculty,
staff, transportation, extracurricular activities, and facilities
were among the most important indicia of a segregated
system. 391 U.S., at 435. Independent of student assign-
—
ment, where it is possible to identify a ‘white school’ or
a ‘Negro school’ simply by reference to the racial composi-
tion of teachers and staff, the quality of school buildings
and equipment, or the organization of sports activities, a
prima facie case of violation of substantive constitutional
rights under the Equal Protection Clause is shown.”
Based on the extensive evidence adduced at the preliminary
injunction hearing, the court ruled before trial that such a
prima facie showing had been made in this case, and that de-
fendants would therefore carry the burden of going forward at
trial. This shifting of the burden upon a presentation of a prima
facie case is commonplace judicial procedure, and its applica-
tion in school desegregation cases is not novel.'*
A presumption of segregative intent arises when plaintiffs
establish that the natural, probable and foreseeable result of
public officials action or inaction was an increase or perpetua-
tion of public school segregation. The presumption becomes
proof unless defendants affirmatively establish that their action
or inaction was a consistent and resolute application of racially
neutral policies. Oliver, supra, 508 F.2d at 182; Keyes, supra;
Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973) (en banc),
rev'd on other grounds, 418 U.S. 717 (1974); Davis v. School
District of Pontiac, 443 F.2d 573 (6th Cir. 1971), affg. 309
F.Supp. 734 (E.D. Mich. 1970).
The plaintiffs early in these proceedings established a prima
facie case that the defendants maintained policies and were re-
12 “This burden-shifting principle is not new or novel. There are
no hard-and-fast standards governing allocation of the burden of
proof in every situation. The issue, rather, ‘is merely a question of
policy and fairness based on experience in the different situations.’
9 J. Wigmore, Evidence §2486, at 275 (3d ed 1940). In the con-
text of racial segregation in public education, the courts, including
this court, have recognized a variety of situations in which ‘fairness’
and ‘policy’ require state authorities to bear the burden of explaining
actions or conditions which appear to be racially motivated. (Citation
of cases omitted. )” Keyes, supra, 413 U.S. at 209.
— ve
sponsible for acts and omissions which did have the natural fore-
seeable, probable and actual effects of contributing to and con-
tinuing segregative conditions in Lansing elementary schools.
Defendants have argued that the racial imbalance in Lansing
elementary schools, and many of the acts and omissions plain-
tiffs complain of, are the result of a neighborhood school policy,
consistently administered without regard to race.
However, the Supreme Court has made clear that facially
neutral practices, even those neutral in terms of “intent,” may
be illegally discriminatory in effect. Swann v. Charlotte-Meck-
lenburg Board of Education, 402 U.S. 1, 28 (1971); Griggs v.
Duke Power Co., 401 U.S. 424, 430 (1971). Thus, this court
has analyzed the evidence in this case to determine the foresee-
able effects of the defendants’ actions, as well as their motiva-
tions.
Ill
This court finds the following facts and circumstances.
The Lansing School District was organized in 1847 by the
merger of three districts serving “upper, middle, and lower”
towns in what was to become the City of Lansing. The City of
Lansing and the school district expanded slowly and in 1949
had an area of about 11 square miles.
Between 1958 and 1965 the Lansing School District grew
rapidly, as part or all of 12 neighboring school districts were
annexed. The size of the District increased so that presently it
is approximately 50 square miles, much larger than the city
proper.
The Black population of Lansing likewise grew in the ’50’s,
though not quite as dramatically. In 1950, Black people in
Lansing numbered only 2,979 out of a total population of
92,129, or a little over 3%. By 1960, the proportion had
—_— =
changed to 6,745 Blacks out of a total of 107,807, or slightly
over 6%.
Most Blacks lived on the West Side of Lansing, in the south-
ern part of what is commonly known as the “River Island
area.”'* Following a familiar demographic pattern, Black people
in the 1950's moved into previously white neighborhoods in the
West Side section, and the racial composition of elementary
schools changed accordingly.
Attendance Zone Boundaries
One such school which was affected in this fashion was Main
Street. In September 1956, the school was slightly overcrowded
and 62% Black. At that time, the overcrowding was elimi-
nated and the proportion of Blacks was reduced to 55% by an
adjustment of boundaries which took a two-block area from the
Main attendance zone and gave students living in that area the
option of attending either Kalamazoo or Lincoln school.'* How-
ever, Blacks continued to move into the Main Street School
service area, and the number of Blacks in the school continued
to increase.
13 The term “River Island area” is used interchangeably in this
opinion with “the West Side” to denote the area bounded on three
sides by the Grand River and on the west side by the city limits and
school district boundary. The name “River Island” was coined by
a school administrator seeking to avoid untoward connotations from
“West Side Story.” It is by no means an island; geographically iso-
lated from other parts of the school district. To the contrary, it
comprises the city’s Central Business District and the state Capitol,
and is readily accessible from all other parts of the city. The parties
have not suggested that it is a “separate, identifiable, and unrelated
section of the school district,” Keyes v. School District No. 1, 413
U.S. at 205, and the court finds on the evidence that it is not. On
the basis of its examination of maps, verbal testimony and census
and other demographic data, this court finds that Lansing School
District, for purposes of this case, is to be treated as a single, un-
divided district.
14 “Boundary Changes, 1947-76,” Def. Ex. 84.
— \
The Board of Education said it “considered that the trend of
an increasing ratio of Negro to White enrollment at the Main
Street School could develop into complete segregation, a situa-
tion noi conducive to satisfactory race relations.”!° In 1957, con-
fessing that its original attempt to reverse this trend toward a
segregated school had failed, the Board appointed a committee
in response to a request by parents, to analyze the conditions
and recommend corrective measures. Among other things this
committee suggested an additional boundary change, or, alterna-
tively, the immediate construction of an elementary school in
the Heatherwood area to the northwest of Main Street School.
The Board rejected the proposed boundary change for the rea-
son discussed below. The Board also refused to construct a new
elementary school since this would, in its view, require the vecat-
ing of satisfactory facilities and postpone the construction of new
schools badly needed elsewhere. Finally concluding that the
increased Black enrollment at Main was the result of Blacks
moving into the service area, the Board resolved to abandon fur-
ther efforts to keep Main integrated, and further resolved to
maintain equal educational opportunity through a variety of
special programs. '®
The stated reason for the Board’s refusal to change boundaries
as its committee recommended was that such alterations “can-
not accomplish any material results unless some children travel
unreasonably long distances, in some cases completely across a
school district and into the district of a distant school.”!7
Re-examination of this statement in light of the geographical
realities is revealing. The school district which students would
have had to go “completely across” to get into the “distant” dis-
trict was a two-block wide strip of the Michigan service area
2 ¥ Board of Education, Minutes, March 28, 1957, PI.
x. 12.
16 Id.
17 Id.
—
which extends between Verlinden and Main, and is the site of
Sexton High School. Of course, any students switched from the
Verlinden to the Main area would have had to walk more than
two blocks to actually get to school, but the map clearly shows
that over one-third of the Verlinden service area is within a mile
of the Main Street schoolhouse door. (Def. Ex. 82.) Lansing
School District's policy is that students are close enough to walk
to school unless they live over a mile and a half from school.
Indeed, a request that same year from White Main Street
parents who wanted the board to change boundaries so their
children could go to White Verlinden School instead of Black
Main Street School, shows that parents did not consider the dis-
tance unreasonably great. It also shows that they did not con-
sider the high school campus a barrier to their access to the ele-
mentary school on the far side of it.'*
This request by White parents that the boundary lines be
gerrymandered to allow their children to go to the White Ver-
linden School was presented to the Board at about the same
time as a related request by Black parents that the Board change
boundaries to reduce concentration of Black students at Main.
The Board asked representatives of Blacks and Whites to work
together to resolve their differences, and after a less than co-
operative beginning, they finally did so.'* As noted above, no
boundary changes were made by the Board at that time in re-
sponse to these requests. In fact, since 1957, the Board has
never altered the boundaries of the Main Street School service
area,*” although the 1966 Citizens’ Advisory Committee recom-
mended that boundary changes might be appropriate.?*
18 The court also observes from the maps in evidence that there
are routes on regular city streets between the two service areas,
which do not cut through the high school grounds, and which would
appear to be the most natural way to traverse the area.
1% Testimony of Clarence Rosa, Tr. 65-66.
2° Def. Ex. 84; Additional Stipulations, No. 4.
21 Pl. Ex. 5, p. 10.
~~ +
_—
The Board’s prediction about the trend toward complete seg-
regation was borne out, as Main Street eventually became over
90% Black.**
In September 1957, the Board altered the boundary lines
among Michigan and Verlinden and Kalamazoo by removing
three blocks (two of which were residential) from Michigan and
making them part of Verlinden, and transferring roughly the
same size area from Kalamazoo to Michigan. The area trans-
ferred from Michigan to Verlinden was all-White; there were
no minority residents living there at the tirme.?°
The reason for the alteration is not entirely clear—it was
stipulated that if Lansing School District Information Services
Director John Maars had testified, he would have stated that it
was overcrowding at Kalamazoo Street School. Exhibit 84,
“Boundary Changes,” prepared by the school administration at
the court's request, indicates that the reason was “to balance en-
rollments” among Michigan, Verlinden, and Kalamazoo. The
difference in the choice of terms appears to have some signifi-
cance, since Exhibit 84, which outlines and states reasons for
all boundary changes in the district since 1948, distinguishes
between changes to relieve overcrowding, and changes to bal-
ance enrollments. Indeed, it appears from looking at the whole
transaction that if one of these three schools whose enrollments
were balanced was overcrowded, it was Kalamazoo. This, be-
cause while Michigan gave up area to Verlinden, it simultane-
ously took on territory from Kalamazoo.
The view from the perspective of the Michigan Street School
alone is puzzling, if not suggestive. Michigan had a capacity
larger than the other schools involved.?* For the year 1957-58,
22 Testimony of William L. Webb, Tr. 146.
ax —— in open court, 10-20-75; Answer to Interrogatory
24 “1968 Facility Planning Study.” Pl. Ex. 38; Def. Ex. 82.
— =
and for a number of years before and after that, Michigan’s en-
rollment was significantly below capacity. Yet in 1957 the
Board removed an all-White area from this school zone to al-
ready White Verlinden, with no apparent net change in the total
size of the Michigan service area. (Michigan and Verlinden
schools are about equi-distant from the area in question; Michi-
gan is slightly closer.)
The Verlinden service area at this time had almost no Blacks.
In 1950 it was virtually all White, and by 1960, it was still nearly
99% White. (Def. Ex. 24A, B.) The Michigan service area on
the other hand, was overwhelmingly White in 1950, but by
1960 had a substantial number of Black residents. And Kala-
mazoo, already in 1950, was one of the two schools in the most
heavily Black portion of the city (the other being Main). The
court finds that a significant and growing number of Blacks
resided in the Michigan attendance area at this time, and that
the trend was evident by the late 1950's, as the boundary changes
in question were being discussed or taking place. Dr. Remick
testified that using census data his office could have predicted
these trends based on the northward migration of Lansing’s
Black population, but no analysis was done. The effects of
these population shifts on the school areas involved if not obvi-
ous were at least foreseeable.
Considered in this context then, it appears that the boundary
changes in 1959 “to balance enrollment” among the three schools
had at least two important consequences. First, it removed an
entirely White area from Michigan, which had a substantial and
growing number of Biacks, and placed it in Verlinden, which
had always been, and remained at that time, nearly all White.
Second, while taking this White area from Michigan the Board
simultaneously added to Michigan an area from a substantially
Black school service zone.
Attendance zone alterations which have the effect of exacer-
bating racial imbalance and isolation have been found in nu-
EEE
=
merous cases to be indicia of segregative intent. See Oliver;
supra; Bradley v. Milliken, supra, 484 F.2d at 221-236; Davis
v. School District of Pontiac, supra, 443 F.2d at 576; Keyes,
supra, 445 F.2d 990, 1001; United States v. Board of School
Commissioners of Indianapolis, 474 F.2d 81, 85-86 (7th Cir.,
cert. denied 413 U.S. 920 (1973.))
After 1957, the Board made no changes in the boundaries of
Main Street School.*° Subsequently, in the early 1960's, Main
Street School again became overcrowded, and two mobile units
were placed there.?° During the time mobile units were used at
Main, some space was available at Verlinden, but no boundary
changes were made. (The use of mobile units is discussed in
greater detail below.) Between 1957 and 1972, a number of
committees and study groups recommended to the Board that
boundary changes be made to rectify racial imbalances, but it
does not appear from the record that any such changes were
made.
The rigidification of attendance zone boundaries around
schools attended by the majority of Black students had the pre-
dictable and actual effect of “cementing” Black students into
special areas and particular schools within those areas, and of
preserving many other areas and schools for Whites. Oliver v.
Kalamazoo Board of Education, supra, at 166, aff'd, Oliver v.
Michigan State Board of Education, supra, at 183-84.
Related to this is the fact that between 1949 and 1965 there
were 18 separate annexations of neighboring school districts
by the Lansing School District. Def. Ex. 799A, B. Many of these
*° Def. Ex. 84; Additional Stipulations, No. 4. A map showing
River Island attendance areas is in West Side Educational Facilities
Ad Hoc Committee, “Report and Recommendations on River Island
Elementary Schools, February 24, 1972,” App. III-F, Ad
No. 1, Pl. Ex. 6. ry pp , Addendum
. — Unit Locations—Historical Record 1962-1973.” Def.
x. 16.
_—
annexed districts brought with them buses which they had been
using, and continued to use, for transportation of their pupils
to and from school. Def. Ex. 83. Each of these annexations pre-
sented the Board with an affirmative opportunity to re-examine
the attendance zone boundaries of the district, and to work to-
ward racial integration. Instead, in each instance, the Board
chose neither to reorganize service areas nor to initiate any
other action which would have minimized discriminatory racial
isolation.
Too often, public officials act routinely on such matters, ig-
noring alternatives and failing to consider the natural and fore-
seeable consequences of their actions. While each annexation
or similar agenda item has peculiar significance for a specific
area or group of people, the school board has responsibility for
and control over the entire district. It cannot be myopic. In
order to discharge their obligations properly, school board mem-
bers must look at the implications of each decision they make,
in light of the best interest of the total district. Local school
boards throughout the country have been no notice at least
since the Brown decision in 1954 that they have a duty to eradi-
cate discriminatory racial isolation. This duty should be con-
stantly on the minds of school board members as they decide
questions like boundary changes through annexation, transfers
to relieve overcrowding, and selection of new sites. The Michi-
gan State Board of Education and Michigan Civil Rights Com-
mission articulated this idea well in their Joint Policy Statement
when they stated that “(e)ach of these situations presents an
opportunity for integration.”*?
Transfers
As the Board abandoned efforts to keep Main Street School
racially integrated through boundary adjustments, it established
27 See p. 61, infra.
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special transfer policies which further exacerbated the problem
of racial isolation. A Student Transfer Policy was adopted by
the Board of Education in 1957 which permitted students to
transfer because of emotional need, based on physician’s state-
ment. That policy, while neutral on its face, had the effect of
accelerating the segregated nature of certain Lansing elementary
schools. A policy which allows transfers from racial minority
schools to racial majority schools, even when restricted, is tanta-
mount to an authorization for White students to flee and is a
means for the perpetuation of segregation. Davis v. Board of
School Commissioners, 414 F.2d 609 (1969); Monroe v. Board
of Commissioners, 391 U.S. 450 (1968); Goss v. Board of Edu-
cation, 373 U.S. 683 (1963).
The policy was used by a large number of students to flee
from predominantly Black Main and Michigan schools to Ver-
linden, a predominantly White school. A substantial number
of those transferring were White students, though Whites made
up a relatively small portion of the Main and Michigan student
bodies.
The disproportionate use of this policy by White students,
alleging emotional need to transfer into White schools, was
widely recognized as an abusive practice. The Board of Educa-
tion knew about misuse of the policy as early as 1961, when the
Committee on School Needs, established by the Board, recom-
mended that the transfer policy be changed, stating that “the
school system, rather than contributing further to the problem
of segregation, must make positive efforts towards ameliorating
the situation.”** Hortense Canady, who served on the Committee,
testified that it was disturbed by the large number of transfers
out of Black schools, and especially from Main Street School to
predominantly White Verlinden, for purely racial or allegedly
“medical” reasons. Both parties acknowledged that some special
transfers also went from Michigan Avenue School, which was
“* Pl. Ex. 3, p. 17.
—_—
becoming predominantly Black in the early 1960's, to Verlinden.
In its 1961 Report to the Board, the Citizens’ Committee recom-
mended that a policy be established which would “discourage”
and prevent transfer for reasons of race, nationality, or re-
ligion.”*®
Since the Board keeps special transfer statistics for only five
years, and for a time was precluded from keeping any statistics
on the basis of race, the parties were unable to present data on
transfers for every year since 1957. However, stipulated evi-
dence was presented to the court showing that in 1962-63, 20
White students and five Black students transferred into Verlinden.
No other school had more than 3 students transferring into it
that year. In 1963-64, 17 Whites transferred into Verlinden, in
addition to 16 Black students, while the next highest number of
transfers to any other school was 5. At that time, Main was 95%
minority, Michigan 75% minority, and Verlinden was 6%
minority. Between 1966 and 1973, 48 White and 125 Black
students transferred into Verlinden. Thus for all the years for
which statistics are available, 85 White and 146 Black students
transferred into Verlinden.
These statistics do not tell the full story of the special trans-
fers in the early 1960s. They do not show, for example, the
service area from which the students transferred into Verlinden.
However, testimonial and documentary evidence suggested that
the White Verlinden transfers came primarily from the Main
Street School service area, and exclusively from the Main Street
and Michigan Avenue service areas combined.*® The figures
show that the policy was used by both Black and White students
to leave the Black schools, and indeed there is testimony indi-
cating that the policy was used by Black parents trying to get
29 Id.
30 Testimony of Hortense Canady and of William Webb at the
July 1973 proceedings; “Report of the Education Committee of the
Lansing Branch NAACP (1965),” Pl. Ex. 4.
ae
=
their children out of the segregated schools and into an inte-
grated setting. Testimony elicited by the defense counsel, e.g.,
showed that at least one prominent member of the NAACP used
the transfer policy to move his children to Verlinden.*' While
these figures might be construed as evidence of a neutral policy,
when they are considered in the context of the racial composi-
tions of the schools involved, it is clear that the policy had a
significant differential impact. During the years at issue, Main
Street School was 95% Black, until 1969-70, and even then it
was over 86% Black until the advent of the cluster program. In
1964, e.g., Main had only 20 nonminority students. Michigan
Avenue school similarly was over 70% Black during the 1960's,
and reached over 90% Black in the years immediately before
the cluster program began. It had 93 nonminorities in 1964. So
at a time when Main had 20 Whites, and the two Black schools
together had 113, it is reasonable to infer that allowing 20
Whites to transfer in one year, and 17 in the next, had a sig-
nificant impact on the racial makeup of these schools. In the
three-year period between 1966 and 1969, a total of 31 White
students attended Verlinden though they were nonresidents of
that attendance area; for the same three years combined, the
total number of White students at Main was 24.5 In 1967,
when Main had only nine Whites out of 312 students, 13 Whites
were allowed to transfer into Verlinden. Moreover, this oc-
curred at a time when Verlinden was becoming overcrowded,
according to William Webb, Director of Pupil Personnel for the
Lansing School District. When the policy was temporarily
changed in 1967, one of the reasons was that Verlinden was
becoming overcrowded.
The bare statistics likewise do not state why students were
allowed to transfer in such relatively large numbers into Ver-
31 Testimony of Vernon Ebersole, Tr. 561.
%2 Def. Ex. 15; Pl. Ex. 66, 67.
33 Testimony of Webb, Tr. 125.
t
~_ »o
linden school. The Board's “Policy Statement No. 6121: Equal
Educational Opportunity,” adopted on June 4, 1964,"* stated
the following with respect to transfers:*°
“The Board of Education recognizes that on occasion it
has been necessary to deviate from the attendance-area
concept and assign students to schools far removed from
their homes. This has been done to eliminate overcrowding
of certain schools. /n individual cases, a student has been
allowed to attend a school other than the one to which he
normally would be assigned. Such transfers have been au-
thorized only because of the particular, individual needs of
the student—usually curricular needs—which one school
is prepared to meet, another is not.” (&mphasis supplied. )
The suggestion was also made that each student was transferred
for a bona fide “health” or “medical” reason.
The plaintiffs, in contrast, contend that the Board's system
of special transfers in the Main-Michigan-Verlinden area
amounted to a conscious departure from the neighborhood
school policy in a situation where adherence to the policy would
have produced a more even racial distribution among some
schools, at least temporarily.
The testimony of the witnesses on this issue is particularly im-
portant, because of the gaps in the evidentiary data. There is
no record, e.g., of how many transfers, or of what race, took
place in the first five years under the policy. But there was
enough activity during this time to prompt a committee ap-
pointed by the Board to recommend a change in the policy be-
cause of misuse. Likewise, there is another two-year gap in
recordkeeping from 1964 to 1966, a significant period in light
‘4 Reprinted in full in “Human Relations Report 1964,” Pl. Ex.
21 at 5-8.
‘5 “Human Relations Report 1964,” at 8.
a. ee
— wa
of the large number of Whites who had transferred in the pre-
ceding years. Again, a committee appointed by the Board and
operating during the years for which there is now no concrete
data, found the policy was being abused by White students fleeing
Black schools on the pretext of “emotional need.” The records
that were kept showed only the receiving school, so again the
testimony of witnesses was important in determining the actual
effect of the policy on Black schools.
The 1961 report of the Committee on School Needs recom-
mended that the policy be changed to require verification by a
psychiatrist of the alleged emotional need. Kathryn Boucher,
who headed the subcommittee which dealt with this question,
and later became a school board member, testified that the
recommendation was based on the members’ knowledge of what
types of youngsters were being transferred, and their belief that
the policy was being abused.** Hortense Canady, who also served
on the Committee, testified that what prompted the recommenda-
tion in 1961 were “medical transfers of a various nature that
tended to transfer students in wholesale numbers from schools
that were becoming more progressively Black in student body
composition, and these students were being transferred to other
schools that were predominantly White schools.”*7 The Board,
which had appointed the committee in 1959, received the report
and was aware of its contents, but did not implement the recom-
mended change.
In light of the Board's report in 1964 to the Lansing Human
Relations Commission, incorporating Policy Statement No.
6121, set out above, the Board’s knowledge of the abuse at that
point in time might still be questioned. In that report, the board
Stated that “transfers have been authorized only because of the
particular, individual needs of a student—usually curricular
36 Tr. 606, 609.
** Transcript of July 17, 1973 proceedings, p. 19.
— _—
needs—which one school is prepared to meet, another is not.”
However, this report came at the end of a two-year period when
42% (58 of 139) of the transfers for the whole elementary
school district were into one White School, Verlinden, from
two Black schools, Main and Michigan. This either reflects ad-
versely on the credibility of the Board’s assertion, or indicates
a significant disparity between the curricular programs of the
White school and the Black schools.
At trial, the defendants did not attempt to justify the unusually
large number of transfers to Verlinden as curricular. Moreover,
the defendants have asked the court to make a finding that “the
basic curriculum is the same throughout all of the elementary
schools in Lansing School District.”°* Weighing the credibility
of the Board’s assertion, in light of the 1961 report to the Board
of abuses, and subsequent reports, as well as the testimony of
witnesses, the court finds that nothing in the 1964 report negates
the finding that the Board was aware of misuse of the transfer
policy at that time.
In 1965, the Education Committee of the Lansing NAACP
prepared and presented to the Board of Education a report
which, inter alia, critically discussed the transfer practices, and
made a finding that no action had been taken since the 1961
recommendation and that transfers were still being granted as in
the past.
The next year, 1966, the Board received the report of the
Citizens’ Advisory Committee, which it had appointed in 1965.
This report again put the Board on notice that the policy was
being misused. The committee wrote in its report:
“The committee has investigated the use of medical per-
mits obtained to enable a student from one school service
area to attend another school. To the degree that medical
** Def. Proposed Findings of Fact, XII, p. 10.
—
certification is both easily obtained and uncritically ac-
cepted, the attendance area standards of the school system
are being subverted.
“The committee recommends that the procedure for ob-
taining medical permits be revised to cope with those rela-
tively few cases where sound reasons may dictate a change
in school assignment for emotional reasons. /t recommends
that the Board of Education utilize the services of a clinical
psychologist or psychiatrist as part of the evaluation pro-
cedure.”** (Emphasis in original. )
Vernon Ebersole testified that he recalled, as a member of
the Board, that the Citizens’ Advisory Committee in 1966 con-
demned the transfer policy.
The court finds most persuasive the testimony of William
Webb, who as Director of Pupil Personnel was the school ad-
ministrator directly responsible for transfers for the past twelve
years. He testified that at the time the 1966 report was sub-
mitted, it was his feeling that the transfer procedures were being
misused, and that he conveyed this information to the Board.*”
In January 1967, the Board finally changed the policy so that
any transfer based on emotional instability wou'd require verifi-
cation of a psychiatrist. However, in June of that same year, the
Board rescinded the new policy and substituted one allowing
certification by either a physician or a psychiatrist—in effect,
requiring only a medical doctor’s approval, as before.
Finally, the suggestion was made that each transfer was for a
tona fide “health” or “medical” reason which existed apart from
the desire of some to escape from predominantly Black schools
to a nearby White one. The problem with this explanation, in
39 Pl. Ex. 5, p. 16.
4° Tr, 134.
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addition to its conflict with the evidence recounted above, is its
inherent improbability. The court does not find credible the
suggestion that relatively large numbers of White students had
special health difficulties requiring them to attend Verlinden (20
in 1962-63, 17 in 1963-64), while the next highest school re-
ceived only 3 special transfers in 1962-63 and 5 in 1963-64, nor
that such reasons necessitated the transfer of 231 students into
Verlinden in nine years.
The wide disparity between Verlinden and other schools sug-
gests that the majority reason for the transferring to Verlinden
was Other than medical, and the statistics on the racial balance
of Main, Michigan and Verlinden lend credibility to the charge
that the transfers to Verlinden were racially motivated, and al-
lowed with the factor of race principally in mind.
After carefully weighing the testimony of the witnesses, and
evaluating the relevant exhibits, the court is convinced, and finds
as a fact, that the transfer policy was abused in a way which
contrivuted to the segregative conditions in these schools, and
with the knowledge of school officials and the Board of Edu-
cation.
The Board’s intentional maintenance of the transfer policy,
and its refusal to change it, had the clearly foreseeable effect of
increasing racial identifiability of Main Street School, Michigan
Avenue School, and Verlinden School.
In Morgan v. Hennigan, Judge Garrity considered the re-
scission by the school board of a resolution it had passed modify-
ing a transfer policy. He found in that case, as the court does
here, that “the ‘neighborhood school’ policy was subordinated
to the white students’ presumed right to escape to safely white
out-of-district schools.” 379 F.Supp. 410, 456 (D. Mass. 1974).
Mobile Units
The school system’s placement of some mobile units is fur-
ther evidence of official action aggravating segregative ccndi-
7... er
—
tions. Cf. Keyes, supra, 413 U.S. at 202, and 445 F.2d at
1000-01. When Main Street School became overcrowded dur-
ing the period of the late 1950's and early 1960's, the Board of
Education could have made the decision to alter boundaries or
transport students to other attendance areas to relieve the situa-
tion. Instead, in 1962, it added two mobile units at Main Street,
thus contributing to and perpetuating the racial identifiability of
that school, which was well over 50% Black. During the time
that the Board used mobile units at Main, nearby Verlinden
Street School, in 1962-63, had only 330 students enrolled, but
a capacity of 368. Also during the period when Main had mo-
bile units nearby Barnes, with a capacity of 456, had actual
enrollment of 425 (1962-63), 396 (1963-64), and 409 (1964-
65). Verlinden is about 14 blocks, slightly over a mile, north of
Main Street School, and Barnes Avenue School is about 1.2
miles southeast of Verlinden. A study by the Education Com-
mittee of the Lansing NAACP showed, based on research by
Dr. John Porter, now Superintendent of Public Instruction, that
in 1962-63, Verlinden had two vacant classrooms, and Barnes
had one vacant classroom.*' Both Barnes and Verlinden were
predominantly White at the time.
Either through boundary changes or transportation of stu-
dents,** the school system could have utilized vacant spaces in
either of these schools to simultaneously relieve overcrowding
at Main and affirmatively enhance integration. But instead it
chose to use mobile units, containing, the Main Street School
population on that campus, despite the objections of parents and
community groups.** That transportation to relieve overcrowd-
‘1 Pl. Ex. 4, p. 20.
42 The court notes that while Verlinden was within walking dis-
tance for a substantial number of Main Street area students, use of
Barnes facilities probably would have required bus transportation
because the Grand River runs between Main and Barnes.
43 Community opposition to the use of mobile units at Main was
pronounced. After a meeting between the NAACP and the Main
—=—
ing and achieve integration was a viable alternative is demon-
strated by the fact that as a result of community displeasure with
the mobile units, some Main students were trassported to Wal-
nut beginning in the fall of 1964. (In fact, it appears that the
Board considered transportation as an alternative before it
placed the mobile units.)** The use of Walnut also shows that
the school board did not consider itself limited only to adjacent
attendance areas when seeking to remedy overcrowded condi-
tions in elementary schools.
Physical Conditions and Facilities
The maintenance of unequal facilities for Black and White
students is another important indicium of de jure segregation.
Cf. Oliver v. Kalamazoo Board of Education, supra, at 174-75;
Green, supra, at 435.
Although Lansing elementary school facilities in general were
adequately maintained, Michigan Avenue School was unques-
tionably an inferior facility, at least through the late 1960's and
early 1970's. During this time it was predominantly Black. A
Street PTA in April 1963, the PTA appointed a committee to meet
with the Board of Education to discourage additional use of mobile
units at Main. It was not until Fall, 1964, that some students were
transported to Walnut, and the mobile units were removed in the
spring of 1965. A Citizens’ Advisory Committee appointed by the
Board of Education in 1965 also recommended that temporary units
be removed from Main (PI. Ex. 5, p. 27). Former board member
Hortense Canady, who chaired the NAACP Education Committee,
testified that that committee not only made its recommendation, but
also circulated resolutions which were signed by citizens of the com-
munity, requesting that boundary changes, or some other method
than continuing to overcrowd the Main campus, be adopted. (Tran-
script of July 1973 proceedings, p. 25.) Board member Vernon
Ebersole also testified about objections voiced to the Board by some
Main Street parents about the use of mobile units. (Tr. 508.)
44 Pl. Ex. 4, p. 19.
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deteriorating interior, coupled with a high pupil per acre ratio,*®
and overheating problems serious enough to affect student per-
formance highlighted the inadequacies.
There was testimony that the main reason this building was
not adequately maintained, and was allowed to deteriorate, was
that the state had purchased or was about to purchase it. Since
the school would then be replaced with a new facility, the school
district wanted to make no major expenditures on the old build-
ing. Dennis Semrau testified that he was told when he became
principal at Michigan in 1968 that the building would be used
only three more years. It is still in use today, over seven years
later; a whole K-6 generation of students has gone through the
building since then.
The defendants have urged that the failure of the Board of
Education to act decisively with respect to Michigan was due to
uncertainties arising primarily from actions of state officials
planning the capitol expansion and a possible state highway
project involving Logan and Butler Streets. Whether school
Officials alone were responsible for the situation at Michigan
School, or whether state officials contributed to the problem, it
appears that the acts of public officials resulted in unequal fa-
cilities for this Black school. Many of the other conditions plain-
tiffs complain of were found in both Black and White schools,
but the only school allowed to operate under the inferior physi-
cal conditions existing at Michigan was this one, a Black school.
Aside from the unequal conditions at Michigan Avenue
School, the Lansing School District operated otherwise in a
racially neutral manner with regard to facilities. Schools were
(for the most part, but with important exceptions discussed else-
where in this opinion) attended by children who lived within the
+> The size of the Michigan Avenue School site is 1.34 acres,
smallest in the River Island Area, and fourth smallest of the 47 ele-
mentary schools in the district.
=
service area, and there is no evidence that school officials were
responsible for racially imbalanced residential patterns. The
same schools now used primarily by minority students were once
used by Whites. It appears that the buildings have been ade-
quately and equally maintained throughout the district. Equip-
ment and teaching materials at minority schools have been at
least equal, atid perhaps better, than those available at other
schools, due to the effective use of federal funds. There are a
few White schools with small site sizes, and schools with larger
sites are primarily in outlying areas annexed citer 1950.
However, these ameliorative factors do not change certain
unfortunate realities concerning the minority schools Heavily
minority schools tend to have the smallest sites, with the largest
number of pupils per acre of school area. As of 1972, the aver-
age acreage of school site areas was 8.2 acres for schools whose
enrollments was between 0% to 10% minority, 5.4 acres for
schools whose enrollment was between 11° and 31% minority,
and 3.2 acres for schools whose enrollment was 32° to 100%
minority. As of 1972, using figures which make allowance for
kindergarten students attending on a half-day basis, the average
number of pupils per acre for schools with between 0% and 10%
minority students was 54.99 pupils per acre, for schools be-
tween 11% and 31% minority, 91.09 pupils per acre, and for
schools between 32% and 100% minority, 150.91 pupils per
acre.*®
Not surprisingly, corollary figures show that there is less aver-
age acreage of playground area at minority schools, and a greater
number of pupils per acre of playground area. For example, in
1970, the mean number of pupils per acre of playground area
for the district was about 125, while for Kalamazoo it was about
475.47‘ The Lansing School District's 1968 Facility Planning
46 Stipulations filed October 15, 1975, Nos. 8, 9.
47 Pl. Ex. 45.
=
Study listed a number of schools where “playground activities
and physical education programs are extremely hindered by
lack of playground areas.” The list included all five schools with
minority enrollments in excess of 40° —Allen, Cedar, Kala-
mazoo, Main, and Michigan.** (There was testimony that school
Officials tried to compensate for this problem through use of
multi-purpose rooms and/or adjacent park areas, where avail-
able.)
Although school officials apparently maintained a racially
neutral policy of adequately maintaining facilities throughout
the district (with the noted exception of Michigan) the relative
size and conditions of substantially minority schools nonetheless
produced discriminatory effects because other discriminatory
acts and omissions were predicated on them.
A specific example is the closing of Kalamazoo Street School.
This facility was phased out gradually and finally closed in 1970,
according to board members largely because of dwindling en-
rollments.*" Yet there was no attempt made (from what appears
in the record) to bring White students in to Kalamazoo, filling
classrooms and simultaneously integrating the school, despite
the fact that when Kalamazoo was closed, its students were bused
out to White schools. Thus it is clear that busing was not the
impediment. If the problem was that school officials felt the
#s “1968 Facility Planning Study,” Pl. Ex. 38, p. 36; “1968
Ethnic Count Report,” Pl. Ex. 66.
** Board member Vernon Ebersole, asked by defense counsel
why he voted in 1969 to bus students from the Kalamazoo area, re-
plied: “The school was losing their population over a period of time
for the reasons I gave, the State Complex, the 1-496 Complex, to
the point where it was getting uneconomical to operate it with the
number of youngsters who would be attending.” Tr. 560.
See also, testimony of Ebersole, Tr. 519. Board member Joan
Hess testified that at the time Kalamazoo was phased out, it was
slowly losing most of its students because of the capitol complex,
Oldsmobile expansion, and highway projects. Tr. 426.
—
Kalamazoo campus, because of lack of playground facilities or
other inadequacies, was not good enough for continued use (not
satisfactory ior use by White students coming in), or at least that
it was relatively less adequate than the White schools to which
Kalamazoo area students were to be bused, then the discrimina-
tory effect is clear. Kalamazoo area students were denied the
right to attend their neighborhood school,*® and had to bear
the burden of one-way busing because their own school was in-
adequate. It has been previously noted that Kalamazoo had the
highest ratio of pupils per acre of playground area. Much more
significant is former board president Rosa’s testimony that as
Kalamazoo was phased out, the third floor was closed first,
because it was considered a hazard.*' If the Kalamazoo facilities
were not considered inadequate and inferior, the failure of school
official
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