Appendix — School District of Omaha v. United States

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Supreme Court U.S

FILED

} NOV 22 1977

MICHAEL RODAK, JR., CLERK

In The

Supreme Court of the Auited States

October Term, 1977

no, 2% -728

THE SCHOOL DISTRICT OF OMAHA,

STATE OF NEBRASKA, et al.,

Petitioners,

vs.

UNITED STATES OF AMERICA,

and

NELLIE MAE WEBB, et al.,

Respondents.

APPENDIX TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE EIGHTH CIRCUIT

{>—

Kennetu B. Hotm

GeraLp P. LAavGHLIN

Micuar. G. LessMANN

Davip M. PEpERSEN

Barap, Hotm, McEacuen, PEDERSEN,

Hamann & Hacoart

1500 Woodmen Tower

Omaha, Nebraska 68102

(402) 344-0500

Attorneys for Petitioners

COCKLE PRINTING CO., 1822 St. Mary's Ave., Omaha

< -_.e—_— +--+ -we- .

-——— ~

In The

Supreme Court of the United States

October Term, 1977 “

= feos

THE SCHOOL DISTRICT OF OMAHA,

STATE OF NEBRASKA, et al..

Petitioners,

vs.

UNITED STATES OF AMERICA,

and

NELLIE MAE WEBB, et al.,

Respondents.

APPENDIX TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE EIGHTH CIRCUIT

INDEX

Pages

District Court Memorandum Opinion On Motion

For Preliminary Injunction 22

District Court Order On Motion For Preliminary

SII sistcisc-o:ddlachenseineiiccishesMimschicseesCiaadabialiniadiibendainassiniiin ey

District Court Memorandum Opinion On Motion

I ice alld cae lla alleen

District Court Order On Motion To Intervene 40

District Court Memorandum Opinion On The Merits. 41

INDEX—Continued

Pages

District Court Order On The Merits 2000... 99

Eighth Cireuit — eikantiiens Decision On

The Merits . icine ae a ah ale rae

Eighth Cireuit poe Na Re LSI W et irae Ir 134

Eighth Cireuit Order On Petition For aeaiin eatin 136

Eighth Cireuit Order On Motion To Recall And

Stay Mandate Pe SE RN te Rt Ml 137

Eighth Cireuit Amended J shi he TL a ol 138

District Court Opinion Approving Plan For De-

IID, ivncctecaenissnstanascsdipaaaelindapliienegiioaeinaedniindin nisinintianei 139

District Court Order vanes Its Plan For De-

III... > saciccictshat tsimsicincneiicnsisssipiceiriccanisideiieceidmaanubaaiaaiaaaan

District Court Opinion On Motion For New Trial

On Its Plan For Desegregation _..... Aen a ed See OIE 165

Eighth Cireuit Order Setting Appeals For A

UIIIUIIIIIE dcsiiat\Gsich-uisniesclaesceeeeeiaoseniahegisbamnpnormeenetaeimeanehcnand =

Kighth Circuit ere On The Plan For Desegre-

IIIT “<oicil:iasl einechabltsentincy ica ltotabeedelelaan cilciuciaenpanisnedidideatbantalisinih 172

Eighth Cireuit Opinion On Remand From The

United States Supreme Court 2... ccc ccceeeeeeeeeeee 175

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRIC’ OF NEBRASKA

CIV. 73-0-320 _

UNITED STATES OF AMERICA,

Plaintiff,

Vs.

THE SCHOOL DISTRICT OF OMAHA,

STATE OF NEBRASKA, et al.,

Defendants.

MEMORANDUM OPINION

(Filed October 26, 1973)

This matter is before the Court on the motion of plain-

tiff for a preliminary injunction pursuant to Rule 65,

Federal Rules of Civil Procedure. A full evidentiary

hearing was held on this motion with all parties given

ample opportunity to present their positions to this Court,

the hearing having been completed on August 30, 1973.

The present prayer for injunctive relief stems from a

ecmplaint filed in this Court by the United States Depart-

ment of Justice on August 10, 1973, alleging a cause un-

der Title IV of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-6 (a) and (b), and the Fourteenth Amendment to

the Constitution of the United States. The complaint al-

leges that the named defendants have engaged in racial

discrimination in the operation of the Omaha Public

~School System, located in Douglas and Sarpy Counties,

Nebraska, and prays for broad equitable relief enjoining

defendants from discriminating on the basis of race or

color in the operation of the Omaha Public School System

and requiring the school system to adopt and implement

a plan to eliminate the alleged discriminatory practices

so as to establish a unitary public school system in,

Omaha in compliance with the Fourteenth Amendment to

the Constitution of the United States. This Court has

jurisdiction over the subject matter of this action under

28 U.S.C. § 1345 and 42 U.S.C. § 2000e6(a) and (b).

The present motion for a preliminary injpnction prays

that this Court prohibit the opening of Martin Luther

King Middle School (located in the Omaha School Dis-

trict) on September 4, 1973, as anything other than an

integrated school, and further prays that the transfer

policy presently in effect in the Omaha Public School

System be enjoined from operating pending a full trial

on the merits of this matter.

FINDINGS OF FACT

The defendant School District of Omaha (district) has

within its boundaries the City of Omaha and part of

Sarpy County, Nebraska. Millard and Ralston public

schools and District 66 are excluded. The school district

operates 73 elementary schools, 12 junior high schools,

and 8 senior high schools within its boundaries. For the

1972-73 school year, 63,125 students were enrolled in the

district. Of these 49,383 were white; 12,220 were black;

and 1,521 Spanish surnamed American, American Indian

and Oriental. The percentage of black students was 19.4

per cent.

As to the racial composition broken down into the

various school levels, the high schools were 17.48 per cent

black; the junior highs were 16.51 per cent black in 1972-

73; and the elementary schools were 2.12 (sic) per cent

black in 1972-73. The black population in the City of Omaha

and the number of black school-age children has increased

noticeably since 1950. The Negro population in 1940 was

5.4 per cent: in 1950, 6 per cent and in 1968, 8.3 per cent,

of the total population in Omaha. Between 1950 and

1960 the number of school-age black children increased

110 per cent. In 1950, 52 per cent of the black people

lived in three census tracts in the eastern portion of

Omaha which were bounded by 24th Street to 30th Street

as the east and west boundaries and Cuming Street and

Bedford Street as the north-south boundaries. In 1960

these same three tracts held less than 30 per cent of the

total black population and the neighboring census tracts

7, 8, 9. 12 and 13A, all were more than 50 per cent Negro,

and tracts 14 and 52 had 46 to 37 per cent black popula-

tion respectively. Reference to the census tracts on page

36 of defendants’ Exhibit 51 shows that the movement

between 1950 and 1960 was north and somewhat west

of what it had heen in 1950.

SEGREGATION

As to the senior high schools, Omaha Technical High

School, located in the approximate center of the school

district, and towards the eastern portion thereof, enrolled

a student body of 94.68 per cent black during 1972-73.

North High, located north of the Technical attendance

boundaries, was 31.13 per cent black in 1972-73 and

Central High, immediately east of Tech High, had 30.36

per cent black in the school year. Three of the high

schools (Bryan, located in the southeastern portion of the

school district, Burke High, located in the west central

portion of the school district, and Northwest, located in

that general area of the school district) all enrolled less

than 10 black students during the 1972-73 school year

which amounted to less than 1 per cent of their student

enrollment.

As to the junior high schools, Horace Mann Junior

High, whose attendance boundaries are generally speak-

ing within the area of Omaha Technical High School,

enrolled 97.95 per cent black students in 1972-73. Monroe

Junior High, located to the east of Mann and to the

immediate northwest of Tech High School attendance

boundaries, enrolled 40.99 per cent black students in

1972-73. Four of the junior high schools, Bancroft,

Beveridge, Bryan and Marrs, enrolled ten or less black

students in 1972-73, which were less than 2 per cent of

their student enrollments. Bancroft and Marrs attend-

ance boundaries are in the southern portion of the dis-

trict in relation to Mann and Monroe and somewhat east

therein in certain portions. Bryan is in the southernmost

portion of the district and its area is the same as that

of Bryan hich school. Beveridge Junior High is located

in the western part of the school district and its bound-

aries correspond with the southern portion of Burke High

School.

Of the elementary schools, eleven of the seventy-three

were over 75 per cent black and 3 of those eleven were

over 90 per cent black. Thirty of the elementary schools

had less than one per cent and of those thirty, twelve

had no black students enrolled during the 1972-73 school

year. The elementary schools with the greater precent-

age of black students were all located in east central and

northeast portion of the Omaha School District and the

City of Omaha. Those elementary schools that had the

least percentage of black students in 1972-73 were located

primarily in the western and southern parts of the Dis-

trict in the City of Omaha.

ASSIGNMENT OF BLACK FACULTY

(a) Elementary schools

In the school year 1962-63, there were 55 black elemen-

tary teachers assigned to majority black elementary

schools.'. There were only 56 black elementary faculty

members in the district. Clifton Hill, which along with

Franklin, is an elementary school in an attendance zone

which will feed into the Martin Luther King Middle

School (King), turned majority black between 1966-67 and

1967-68. The first black faculty was assigned to that

school in 1968-69. Franklin turned majority black in

1966-67 and its first black faculty member was assigned

in 1965-66 when Franklin was 44 per cent black.

(b) Junior high schools

In 1964-65 there were 21 black faculty members at the

junior high level. Nineteen were assigned to Horace

Mann Junior High, which was 97 per cent black, and the

other two were assigned to Tech Junior High which was

61 per cent black. In 1967-68, there were 32 black

teachers in the junior high schools, 25 of which were

assigned to Horace Mann (98 per cent black), 5 to Tech

Junior High (89 per cent black), and 2 to Monroe Junior

High (80 per cent black). In the 1971-72 school year

there were 56 total black faculty members at the junior

high school level, 27 of which went to Mann (98 per cent

1. Reference in these findings to a ‘‘majority black’ school in-

dicates one with a black enrollment of over 50 per cent. The

government's reference to ‘‘predominantly black’’ schools dur-

ing the hearing was expressed to the Court to indicate those

with 65 per cent or more black enrollment. References here-

in also indicate that percentage.

black), and 18 of which were assigned to Tech Junior

High (91 per cent black).

(ce) High schools

The first black faculty at the high schocl level was

assigned in 1963-64. During that year Technical High

School turned majority black and 2 black faculty mem-

hers out of the total of 3 were assigned to that high

school. In 1963-64, the other faculty member was as-

signed to North High (9 per cent black). Central High

(13 per cent black) had no black faculty members.

In 1972-73, 44 of the 49 black facvlty members in the

high school level were assigned to Tech (95 per cent

black), Central (30 per cent black) and North (31 per

cent black).

It would thus appear that there has been in the district

an assignment of black faculty to those schools which

have the greater amounts and/or majority of black stu-

dents in their student bodies. (See also Government

Exhibit No. 1.)

BUILDING SITES AND FEEDER ZONES

(a) Site location

The planning for the new Martin Luther King Middle

Schoo] (King), which is to open in the present school

year 1973-74, was started by the school board some six -

years ago and the final decision to construct King was

made approximately two years ago. King is located

within the boundaries of the Clifton Hill elementary

zone.’

The stated purpose of the King middle schoo] (a rela-

tively new idea in the district encompassing the fifth,

sixth and seventh grades) was to relieve overcrowding at

Clifton Hill Elementary and Franklin Elementary schools

and to do away with the use of portables and cottages at

those schools.’

Prior to the construction of King, there is evidence

that some opposition to its location was communicated

to the Omaha School Board. Mr. Damian D. Lacroix,

a member of the Board of Education during 1969-70,

testified that he had some reservations as to its con-

struction because King was located in such a manner

that the eastern boundary of the school is a railroad

track and that it would be predominantly black. Mr.

Lacroix submitted a resolution in February, 1970, which

is marked as Exhibit 32, which inter alia analyzed the

segregation patterns in the School District and suggested

that some desegregative action be taken. In August,

1970, the district responded to this resolution (defend-

ants’ Ex. 12) and this response indicated its attitude that

some revision was necessary and that such revision in the

form of assignment of Negro faculty throughout the dis-

trict was contemplated and would be done as soon as

possible without depleting the existing staff and would

be implemented with the employment of new personnel.

It also points out that the number of schools with some

Negro enrollment increased from 41 in 1964 to 75 in

1970 and defendants’ Exhibit 4 substantiates this and

extends it to show that in 1972 there were 95 schools

3. ‘‘Portables’’ are temporary movable classroom structures that

are moved to and from schools to accommodate increased

student enrollment. They generally consist of one classroom

per portable unit.

“Cottages are homes in the neighborhood nearby the schoo!

proper which have been renovated and converted to classroom

facilities.

with some minority (not necessarily black) enrollment.

Thus, there was an increase in the number of minority

children that were attending school and in fact from

1962-72, the percentage of minority students attending

majority white schools increased 20 per cent and the per

cent of minority students who had attended schools with

80 per cent minority enrollment decreased from 66 to

46 per cent.

Opposition to the building of King at its present loca-

tion was also voiced by Mr. Tim J. Rouse who has been a

school board member since 1971. He pointed out that

prior to his election, and afterwards, he expressed con-

cern over King and its segregative potential. In addition,

he opposed it because of its physical location and its lack

of through streets and access roads. He preferred that

it be built further west so that the attendance boundaries

would produce a more evenly dispersed racial balance.

At no time did any of the members of the Board express

to him that the reason for building King at its present

location was to defeat integration. The primary and

stated purpose as conveyed to him was to eliminate over-

crowding at Clifton Hill and Franklin.

Also opposition was voiced by an Angeline C. Wead

who has lived in the Franklin school zone since December,

1963. Ms. Wead was president of the Franklin School

P. T. A. in 1968 and in that capacity had some discussions

relative to the proposed Martin Luther King Middle

School with the Omaha Public School System. She indi-

eated that her position, which was relayed to the School

Board at a meeting in 1968, was that although there

was considerable overcrowding at Franklin, overcrowding

would be preferable to a new building because, with the

residential patterns in the state of flux, by the time it

(King) was built, blacks would have moved into that area

and it would be 90 to 95 per cent black. She suggested

the concept of an educational park with the school being

moved further west with its eastern boundary on 45th

Street.

Doctor Joe E. Hanna, who has been associate superin-

tendent of the district since the fall of 1969, testified

that during the spring of 1968 he was called upon to

discuss the new concept of the middle school with citizen

groups and at that time met with the Northwest Com-

munity Counsel and with parents of the Franklin ele-

mentary school and residents within that zone. The

groups’ response at that time was a strong endorsement

of the middle school concept. At a subsequent meeting

at which Doctor Hanna took part, in 1968, the middle

school concept was again explained and Hanna testified

that the members of the community present at that meet-

ing exhibited disenchantment with the existing facilities

at Franklin and they were concerned with the improvised

classrooms and the ill-repair of the building. He testi-

fied that he did not recall anyone objecting to the school

(Xing) for the reason that it would not accomplish in-

tecration.

(b) Feeder zones

Clifton Hill and Franklin Elementary Schools are the

two designated ‘‘feeder schools’’ whose elementary stu-

dents reaching fifth. sixth and seventh grade levels will

attend King. Clifton Hill is 89 per cent black and

Franklin is 75.6 per cent black and the estimated enroll-

ment at King is te be in excess of 65 per cent black.

Clifton Hill turned majority black in 1966-67 and Frank-

lin turned majority black in 1967-68.

Junior high school students from Clifton Hill have

traditionally been assigned to Monroe Junior High Schoo!

which is a majority white school with 41 per cent black

students in 1972-73 and 25 per cent black students in

1971-72. It was assigned as a feeder zone to Monroe

Junior High at a time when both Monroe and Clifton Ilill

were 100 per cent white. In 1972-73, there were a number

of portable classroom units and cottages at Clifton Till

and Franklin.

Evidence was offered to show that some points in

those majority white attendance zones surrounding Clif-

ton Hiil and Franklin zones are closer in distance to

King than some points in Clifton Hill and Franklin.

The goverment’s position is that the School System

designated Franklin and Clifton Hill, which are majority

black, as feeder zones to King when it would have been

more in line with the neighborhood school concept to

feed students into that school who were closer to King

and that failure to do so indicates a desire on its part

to allow the whites in those majority white schools to

stay out of black schools even though it requires further

traveling distances for all concerned. Thus, it argues, a

segregative intent should be inferred. The evidence

supports the view that apparently some white students

live closer to King than do blacks, yet those whites are

allowed to go to a predominantly white school while

requiring blacks who live ferther from King, to attend

that institution.

Plaintiff's Exhibits 18 through 25 and defendants’ Ex-

hibits 17 and 45 all deal with the distances and routes

used by the people relative to this showing. Plaintiff’s

Exhibit 20 would seem to show that there are points in

the Harrison, Rosehill and Fontenelle attendance zones

that are as close or clcser to King than are certain

portions of the attendance boundaries in the Clifton Hill

and Franklin areas. Harrison was 1.2 per cent black in

1972-73; Rosehill was 9.6 per cent black; and Fontenelle

was 17.7 per cent black. Exhibit 20 also shows that cer-

tain points in Saunders, Walnut Hill, and Yates elemen-

tary attendance zones are closer to King or as close as

were certain points in the Franklin and Clifton Hill

areas. Saunders wes 1.6 per cent black, Yates was 14.5

per cent black, and Walnut Hill was 8.7 per cent black

in 1972-73. Plaintiff’s Exhibit 17A indicates that some ©

of these attendance zones are not adjacent to the Clifton

Hill zone in which King is located, although all of those,

including others not specifically mentioned in these find-

ings, are in the general area surrounding King. By

reference to the testimony of Ms. Aleksa, research

analyst for the Department of Justice, and the direct

examination of Mr. Joseph E. Chase, coordinator of

Public Information Services for the district, it is seen

that there is a discrepancy between the measurements

taken by the government and those taken by the school

district. This is also indicated by reference to defend-

ants’ Exhibits 45 and 17. However, notwithstanding the

discrepancy, the Court notes that by general reference to

plaintiff’s Exhibit 17A, or any of the other exhibits that

fairly and accurately represent the various elementary

attendance zones surrounding the Clifton Hill zone in

which King is located, it can be ascertained that there

are some of these zones which have areas closer in dis-

tance to King than some areas in the Clifton Hill and

Franklin zones. If the district had designated, for

example, Harrison or Walnut Hill, rather than Franklin,

as the feeder zone for King, there may have been a result

of a more integrated King. However, if that had been

done, students in the southwest corner of Harrison and

the southwest corner of Walnut Hill would also have been

a great distance from King and perhaps farther than the

furthest distance between King and Clifton Hill or

Franklin. Thus, a designation of one of those pre-

existing zones would have also been inconsistent with the

neighborhood school concept. On the other hand, a re-

drawing of the attendance zone boundaries before desig-

nating the feeder zones could have eliminated the distance

question and would have been more consistent with the

neighborhood school concept by shortening the distance

to be traveled by all conrerned, black or white.

In conclusion, it would appear that King will relieve

overcrowding at Franklin and Clifton Hill, but it may

become a predominantly black school. There is some

evidence that the district was aware of opposition from

the black community as to its location, and with the

distance factors taken into consideration, there may well

be a question presented with reference to validity of the

neighborhood school concept and policy as advanced by

the district.

USE OF PORTABLES

The government contends that the use of portables

and cottages in the Franklin and Clifton Hill zones, the

failure to transport grades from those areas into outlying

white majority zones, and the failure to adjust bound-

aries between the elementary attendance zones in order

to gain a more balanced racial percentage, indicate segre-

gative intent on the part of the district. As alluded to,

portables were utilized by the school district at Franklin

and Clifton Hill elementary schools over the preceding

years. In addition, cottages were also utilized at Clifton

Hill. Although portable classroom units are utilized

throughout the school district, in recent years the num-

ber of portables at Franklin and Clifton Hill surpasses

those placed in other schools in the district.

As far back as 1962, the Omaha Board of Education

realized that a slow growth in membership was predicted

in the Franklin elementary school, and recommended that

the building be maintained at its capacity through bound-

ary adjustments with neighboring schools. The adjust-

ment of attendance boundaries is only one of many ways

to deal with increased student enrollment and may not

be used as frequently as other methods in the district,

but the district did utilize transportation of grades,

boundary adjustments, and elimination of transfers in

certain schools throughout its history to accommodate

increased enrollments. (See government Ex. 14). No

such boundary adjustments were made at the Franklin

School as recommended, but rather, in 1964, an addition

was made to that school in the form of a multiple room

structure and a lunch facility. In 1962 through 1964,

Franklin was not yet a majority black school and did

not become such until 1967-68, turning predominantly

black in the following years and remaining so in school

year 1972-73. During the school years 1964 through 1971,

a number of portables were added to the school, com-

prising a total of 13 such units, and by 1972-73, the

school had some 15 portables at its location. During

these years, the predominantly white elementary schools

surrounding Franklin (Walnut Hill, Saunders and Yates),

decreased in enrollment and at times were under capacity,

although perhaps not to the extent shown by the plain-

tiff’s exhibits due to the discrepancy in the methods of

computing capacity. In either event, those schools were

operating at total enrollments which, from the evidence

before this Court, was by the very terms of the district’s

policy economically unsound inasmuch as its studies in-

dicated that schools of less than 500 enrollment involve

higher overhead costs than those which enroll from 500

to 1000 pupils. Some of the students in the Franklin

school zone were as close or closer to those predominantly

white schools as they were to Franklin elementary school.

During the years referred to above, Walnut Hill added

two portable classrooms and Saunders elementary school

added a two-room annex.

In the years 1962-71, portables and cottages were also

added to the Clifton Hill elementary school to relieve

the ever-increasing student enrollment therein. By

1970-71, Clifton Hill had seven cottages and four portable

classrooms on its site. During the above-mentioned years,

the elementary schools adjacent to Clifton Hill (Walnut

Hill, Rosehill, and Fontenelle), which were predominantly

white, were at times under capacity, subject to the same

question of degree as was present with reference to

Franklin. Again, the location of Clifton Hill attendance

boundaries indicates that some students living therein

were as close or closer to the aforementioned predomin-

antly white schools as they were to Clifton Hill.

The district offered evidence of maps which purported

ito show, by years, the ‘‘dividing’’ lines in both Franklin

and Clifton Hill which represented a showing that in the

area east of the line the population was black and to

the west thereof it was predominantly white. These maps

and the lines indicated thereon were developed by utiliz-

ing the 1970 census maps and analyzing the location of

the black population in prior years by reference thereto,

and are admittedly not totally free from possible error

due to the somewhat complex method of attempting to

pleee the line in prior years on the basis of a subsequent

year’s census. However, if they are reasonably accurate,

the evidence would indicate that if any boundary changes

had been made between Franklin or Clifton Hill during

the years in question, in an attempt to take a portion of

the students from those areas and put them into one or

more of the surrounding predominantly white and some-

what under capacity elementary schools, the result may

very well have increased segregation in the Franklin

end Clifton Hill Schools. The adjustments would pre-

sumably have occurred in those areas of Franklin and

Clifton Hill zones which were a greater percentage white,

thus depleting the white population therein and leaving

those schools even more segregated.

Notwithstanding the possible segregative effects of

boundary adjustments, the fact remains that evidence

was offered to show that it was possible for the district

to have transferred certain classes out of Franklin and

Clifton Hill zones into the adjacent areas which would

have helped relieve overcrowding in those schools, and

may have eliminated the addition of the number of

portables and cottages that were otherwise required

therein to accomodate the rising enrollments. It appears

that this could have been done without doing damage to

the neighborhood school concept because certain portions

of the school areas in Franklin and Clifton Hill are rela-

tively close to the elementary schools surrounding them

which were mentioned above, and transferring entire

grades had been done on prior occasions. The cost factor

in transporting students in order to transfer an entire

grade is certainly a major consideration, but there is like-

wise considerable expense involved in providing portables

and renovating cottages.

OPTIONAL ZONES

The general practice in the district is that children

in elementary school zones go to certain junior high

schools within the general geographical locations of those

elementary schools when they attain junior high age.

However, the school system does operate several optional

areas. If a student lives in a non-optional elementary

zone, he may be directed to go to a certain junior high

school. If he lives in an optional elementary zone, he is

given an option to attend a number of different junior

high schools.‘

Technical Junior High School, located in a portion of

the Technical Senior High building, was closed after the

school year, 1971-72. At that time it had an enrollment

of 551 black students and 48 white students. Tech Junior

High, majority black since 1962-63, became predominantly

black in 1966-67. In 1971-72, certain elementary zones

had options to attend Tech Junior High: Walnut Hill

(5.2 per cent black) located to the east and somewhat

north of Tech, had an option to go to either Tech, Lewis

and Clark (which is located to the west and south of

Walnut Hill elementary zone) and Norris Junior High

(which is located directly south of Walnut Hill). Tech

Junior High was 90 per cent black, Norris was .7 per

eent black and Lewis and Clark was 1.7 per cent black.

Saunders (2.8 per cent black) located just south of

Walnut Hill elementary zone, had an option to go to these

same junior high schools. Conestoga (93.7 per cent

black), had an option to attend Tech Junior High or

Horace Mann Junior High—the latter being 97.8 per cent

black at that time, and located north of the Technical

High School; Mason (2.1 per cent black) located to the

4. Another example of the use of an optional policy occurred

when Tech Junior High was closed after 1971-72. At that time

the majority black schools were given an option of having

the seventh grade of their elementary school continue for a

one-year period. Plaintiff argues that this shows an attempt

to ‘‘wed’’ the blacks to their black community. However,

this option was also given to the parents at the other feeder

schools for Tech Junior High if they could get enough pupils

and, therefore, this option neutralizes the option given to the

majority black schools as to the segregative intent to be in-

ferred therefrom.

south of Tech and in the southeastern portion of the

Omaha school district, had an option to aitend Tech or

Bancroft Junior High (.4 per cent black) and some had

the option of attending Norris Junior High. The elemen-

tary zones that feed directly into Tech Junior High with

no option during the 1971-72 school year were Central

grade, which was over 20 per cent black; Franklin, which

was over 85 per cent black; Kellom which was over 90

per cent black; and Yates, which was 12 per cent black.

As pointed out above, Walnut Hill, Saunders, Conestoga

and Mason had options to attend Tech Junior High, along

with other junior high schools. Saunders, Walnut Hill

and Mason were predominantly white, as were Central

grade and Yates.

Even with this number of predominantly white elemen-

tary schools feeding into Tech Junior High in the years

1971-72, the student enrollment at that junior high during

the year 1971-72 was 90.9 per cent black and only 48

white students were in attendance that year. Walnut Hill

and Saunders are within a mile of Tech Junior High, yet

in 1971-72, only 1 white student from each of those

schools attended Tech Junior High. This would indicate

that the students in those predominantly white optional

schools exercised their options to attend other junior high

schools and the ones without options utilized the schools’

transfer policy which will be discussed, mfra, to transfer

out of Tech Junior High and into another school. It

would appear from looking at the map that elementary

students in the Mason zone would likely have had to

travel farther to North or Bancroft than they would have

had they gone to Tech Junior High. The same is true

as to Walnut Hill, as it is generally with Saunders.

During the 1971-72 school year approximately 600 stu-

dents were enrolled at Tech Junior High School. There

was evidence offered which would show that the capacity

for Tech Junior High, at least in 196465, was 795 pupils.

This determination was based on a 30 pupil per class-

room computation. However, the evidence shows that

this number is not necessarily the best for educational

purposes and is not an accurate number to determine the

school’s capacity hecause inner-city schools, as Tech

Junior High, have lower teacher-student ratios as a

policy of the school. Junior high classes are smaller

generally speaking, than elementary classes and special

education classes, which Tech Junior High had, are neces-

sarily smaller. Thus, there is evidence that the capacity

of the schools based on the 30 pupils per classroom was

not necessarily a proper guideline and that some of the

capacities listed in the various studies are not accurate.

It would appear that capacity at Tech Junior High was

not es large as indicated in the government’s exhibit 8A.

However, whether or not its enrollment was under ea-

pacity at this time, the optional zones in effect in 1971-72

were instrumental in allowing Tech Junior High, which

was located in a predominantly white neighborhood as of

1970, to become predominantly black.

From the testimony and various exhibits, it would

seem that the most apparent reason for assigning certain

elementary zones as optional zones to the surrounding

junior high schools is that those schools generally are

adjacent to the optional zones. For example, surround-

ing Walnut Hill is Lewis and Clark on the west, Norris

on the north and Tech on the east. Surrounding Saun-

ders is Lewis and Clark on the west; Norris on the south:

and Tech on the east. Since the distance factor was

material and important in designating various optional

schools, this has some bearing and makes the option:!!

zones more reasonable in this case.

Also the government points out that white students

are not always allowed to transfer out of black areas.

In 1957-58, Franklin elementary seventh and eight!

«raders were assigned to Tech which was then predomin-

antly white. It further points out that one of the explan-

ations for fewer students going to Tech Junior High:

from Mason in 1971-72 could very well be the fact thot

between Tech Junior High and Mason is a stretch of

primarily business and commercial-industrial and also the

Dodge Street interchange was going through in 1965-66

at the time that Mason was converted to a K through 6

institution, and its seventh and eighth graders were

assigned to different areas.

All the evidence taken together would seem to show

that the use of these optional zones may have had some

segregative effect, but the question remains whether

segregative intent is a valid inference.

GRADE STRUCTURES

This particular area is somewhat related to that of

the optional zones. The district started developing plans

for a junior high system in the 1950’s with Monroe

Junior High. This was followed by Norris, Indian Hills,

Horace Mann, McMillan and Lewis and Clark. Technical

Junior High was designated as such in the early 1960’s.

The district’s policy is that of phasing out all K-8 facil-

ities.’ During the school year 1964-65, there were certain

elementary schools that still had K-8 and, therefore, were

not assigned to any junior high schools. They are as

follows: Jackson (.3 per cent black); Mason (3.7 per

cent black); Pershing (@ per cent black); Sherman (.5

per cent black); Walnut Hill (2.5 per cent black): and

Yates (.3 per cent black). By consulting the exhibits

concerning elementary school attendance areas, one can

see that all of these schools were in the general vicinity

of Tech Junior High and the Franklin, Clifton Hill

areas.

Of the schools above mentioned that were still K-8 in

1964-65, Walnut Hill converted in 1967-68 and it started

that school year with 98.2 per cent white. The students

eligible for junior high in Walnut Hill were given options

to attend Lewis and Clark, Norris or Tech as pointed out

above. Saunders converted in 196465 when it was 100

per cent white and was given similar options to attend

Lewis and Clark, Norris or Tech Junior High. Mason

5. Kindergarten through eighth grade.

was converted in 1965-66 at which time it was 97.3 per

cent white and had options to attend Bancroft, Norris or

Lewis and Clark. Plans were made to convert Yates for

the school year 1969-70 (when it was predominantly

white) but due to opposition from various parents, it was

continued as K-8 for another year. This plan to convert

Yates was apparently just a proposal when the various

parents spoke against it, and the following year, 1970-71,

the seventh and eighth grades were closed, even though

there was some continued protest that it not be closed.

Jackson, Pershing and Sherman are elementary zones

that still have seventh and eighth grades and, hence, no

options. Central Park, Monmouth Park and Miller Park

all converted in 1958-59 at which time they were 100 per

cent white and they were not given options but were

assigned specifically to McMillan Junior High which was

then 100 per cent white and continues to be a predomin-

antly white school.

The government’s position is that since there were

a number of predominantly white schools in an area

around Tech Junior High and Horace Mann Junior High

(both majority black) that were still K-8 schools as late

as 1964-65, there is an indication that the district was

allowing the students in those predominantly white ele-

mentary zones to stay there two years longer rather than

directing them to exercise an option to attend Tech

Junior High or some other school zone that was pre-

dominantly black. Its position is also based on the fact

that the elementary zones that converted most recently

were those surrounding the black areas in Omaha and

thus it infers that this was a final holdout in an attempt

to allow elementary school zones to keep themselves and

their predominantly white enrollment together and not

force children to attend junior high schools which would

probably be in an area with a greater black percentage

than were their elementary zones.

_ The district contends iat the conversion from K-8 to

K-6 is historically a gradual process. It maintains that

the conversions to K-6 facilities in the district have not

been managed in such a way as to increase or encourage

segregation and attempts to show a logical basis for such

late conversions by evidence to the effect that the schools

in question were ones which were to have been assigned

to a number of junior highs in the City that were

eventually not constructed and thus were converted only

when the decision not to construct those schools was

finally made. These junior high schools were: (a) a

central city junior high school which was to be located

essentially south of the business district in Omaha; (b)

one on Western Avenue, located some twelve blocks north

of Dodge Street, the main east-west street in the City

of Omaha, running from 50th Street to 78th Street, from

83rd Street to 90th Street, and from 90th to 96th Street

(this latter junior high school later merged into Lewis

and Clark); (c) a junior high in Miller Park, the site for

which the district failed to acquire and which ultimately

merged into what is now MeMillan Junior High located in

the northern part of the district and on the eastern

boundaries thereof (the building of McMillan at this

place isolated the Sherman elementary zone which is

located just directly east and adjacent to the McMillan

zone and the Pershing zone which is located to the south-

east of Sherman and directly south of the Omaha Eppley

Airfield; this would seem to explain the reason why these

two schools have not yet been converted from K-8 to

K-6); (d) a junior high along Paxton Boulevard, which

runs between 31st and 32nd Streets in the northern part

of Omaha, which was not built because of changing con-

ditions and circumstances.

TRANSFER POLICIES

In addition to the fact that Tech High School and

Central High School are ‘‘open’’ schools,° and in con-

6. This means generally that students of high school age who

do not live in those zones have a choice of going to those high

schools if they choose to do so. The students who live in the

Tech or Central zones, however, must attend the high school

in their respective zone.

junction with the optional zone policy which was dis.

cussed, supra, the district also has another method by

which students can attend areas other than those in whicl)

they live and those which may be closer to their homes.

This method is commonly referred to as the ‘‘open

transfer’’ policy, which was introduced into the system

in 1964 during the administration of Doctor Paul A.

Miller, who was then Superintendent of Schools. It

resulted from the study and recommendation of a bi-

racial committee which was appointed by the Mayor of

Omaha in the Spring of 1963. The following conditions

vovern the ability to transfer from the zone of residence

to another school:

(1) The achievement level of the pupil requesting

transfer shall equal the average level of achievement of

the pupils in the grade in the school to which the transfer

is being requested.

(2) The school to which the pupil is transferring

cannot be an overcrowded school. .

(3) Transportation of pupils is the responsibility of

the parents. ,

_ (4) The transfer request must be in writing on an

individual basis.

(5) Permission to transfer shall not be granted until

enrollments are ascertained.

Prior to the adoption of this policy, transfers were

allowed only for reasons of health or hardship. Students

could not transfer for the reason that the student did

not want to attend a school with black pupils, or because

he felt that he was going to an inferior school or because

the educational progress in another school was superior

in his opinion. The primary and stated purpose of the

open transfer policy of 1964 was to encourage and up-

grade the academics of the school system. The program

was viewed as having no connection with segregation or

integration.

To utilize this policy, parents make written request

for transfer which request is placed on file with the

particular school which is desired. The district then

communicates with the principal of the school in question

to determine the space and specific problems involved

and al& communicates with the parents to suggest alter-

native methods if space is not available or if for some

reason transfer cannot be granted. Aside from the five

determining factors set forth above, other considerations

include special education or medical problems. In addi-

tion, the administration of the school also looks to prob-

lem situations or learning situations and may grant a

transfer in a situation where a student may stand a

better chance to succeed in the transferee school. Finan-

cial hardship cases are also considered.

The transfer request forms do not include a space for

designation of the race of the applicant. However, the

district does maintain records which happen to show the

race of some students and at times there are interviews

by the administration with the parents of the student

requesting the transfer. Approximately one-third of the

transfer requests are dealt with on an interview basis.

Additionally, the transfer request forms have a space for

the requesting party to indicate any reasons as to why

the request is made. There was testimony that these

reasons are not necessarily taken into account in the

granting or denying of transfer requests, but they are

often utilized in hardship cases. This is a matter o,

practice, not of any standard policy.

Once a student obtains a transfer to a particular

school, he must re-apply for a transfer if he desires to

attend that particular school, or another outside his

attendance zone for the next year. If he wishes to choose

another school available to him under an option (other

than the one initially chosen) he must likewise obtain

a special transfer. The same procedure is applicable in

the ease of high school level transfers.

At the time this transfer policy was introduced there

was some evidence of opposition from members of the

minority race that this program would work against the

poor and the black students because of the requirement of

equal achievement and the parents having to transport

their children. Additionally it was argued that the re-

quirement that the size of the class in the receiving school

be no larger than the size of the class of the transferor

school would have an adverse effect due to the fact that

the inner-city school classes generally were smaller than

others pursuant to school policy.

However, Dr. Miller testified that he knew of no in-

stance where a transfer was denied on the basis of

achievement levels during his tenure except for situations

where an individual who needed a special education class

attempted to transfer from a school that employed such

classes into a school which did not. He further testified

that tue ultimate purpose of the policy was to encourage

transfers into better schools for all children concerned.

As to the actual results of this transfer policy, the gov-

ernment introduced Exhibits 26, 26A, B, and C, which

purport to represent certain transfer requests by black

and white students out of majority black schools into pre-

dominantly white schools during the school year 1970-71.

(There was considerable controversy over the founda-

tional soundness of these exhibits.) Plaintiff’s Exhibit 26

indicates that there were white transfers allowed out of

black schools into predominantly white schools specifi-

cally for racial reasons, as well as others. However, the

exhibit does not include transfers by white students from

a majority white school to another majority white school

which is less white than the school to which he had been

originally assigned. Also there were no computations

as to the number of white students transferring from

majority white schools into majority black schools. The

testimony of a government attorney who participated in

examining the school records and photographing them,

one William C. Graves, indicated that the rule of thumb

followed in preparing the exhibit was to separate out any

requests that may have had a potential racial] effect.

either segregative or desegregative. At the time the

government witnesses were looking through this file,

they had no idea as to the race of the children involved

and they later attempted to correlate the race with the

students. Graves explained that they photographed

transfers from majority black into majority white schools

and from majority white into majority black schools and

additionally noted any transfer requests that were ap-

proved which appeared to consider a racial reason, no

matter what the schools were. He testified that they also

considered those requests which were denied and which

had listed a racial reason. The district’s evidence _on

this question indicated that certain portions of Exhibit

26 were substantially less than accurate, specifically

those sections dealing with the transfers of black students

from majority black schools to majority white schools.

The district pointed out that there were a number of

transfers from black schools to Benson West school. The

transferor schools in this case were Holy Name, which

is located in Franklin and Clifton Hill attendance zones,

and Kennedy elementary school, which is a majority

black school, as well as others. (See defendants’ Exhibits

21 through 38.) The government’s research analyst,

Cindy Aleksa, testified from her notes that apparently

no photographs were taken of any transfer requests to

Benson West. There were 24 to 25 students involved in

these transfers from black schools to majority white

Benson West, and therefore, Exhibit 26, page 10, which

indicates the total black transfers out of elementary

schools to predominantly white schools in 1970-71 is

claimed to be inaccurate by 50 per cent. The district

also pointed out that some of the dates in Exhibit 26

were misleading and failed to include situations where the

school district denied transfers for racial reasons, as

where a white mother in Clifton Hill sought a transfer

for her child to Fontenelle Park and gave as a reason the

fact that more white girls would be in Fontenelle Park

for her to associate with. This request was denied.

Thus, there were certain discrepancies pointed out in

Exhibit 26 regarding the number of black students who

were allowed to transfer to predominantly white schools

and regarding the nature of the transfers which were

allowed from black schools to majority white schools.

Although the evidence shows that black students were

granted transfers on nearly as equal a percentage as were

white students, and that black students did transfer to

white schools, it also appears that some black students were

denied access to a majority white school (Lewis and

Clark) for the school year 1970-71 for the reason that

it was overcrowded, whereas at the same time some white

students were allowed to transfer from majority black

schools into that school.

It would appear that Exhibit 26 has some probative

value for the government’s contentions as to the transfer

issue but that the exhibit is incomplete and inconclusive.

This issue should be better investigated and thoroughly

presented at trial where the exhibit can be comprehensive

and the evidence in connection therewith fully developed

by both parties.

INTEGRATION

Some integration of school children has occurred in

the school district over the past years. In some of the

predominantly black schools in the district, the member-

ship of black students declined from 1967-68 to 1972-73

(defendants’ Exhibit 48). Furthermore, the evidence

shows that although there has been an increase in the

number of schools with a predominantly minority en-

rollment (80 per cent or more), the total percentage of

the total minority attending those schools has dropped

20 per cent since 1962. Additionally, schools with some

minority enrollment have increased noticably in the last

ten years and, in 1972, 45 ver cent of the total minority

students attended majority white schools (defendants’

Exhibit 4). Although this reference to ‘‘minority’’ in-

cludes Orientals, Indians, and Spanish surnamed Ameri-

cans, as well as black students. it does show a trend of

some integration occurring in the district since 1962.

CONCLUSIONS OF LAW

The relief requested by the plaintiff, to wit: a pre-

liminary injunction, is traditionally viewed as relief of

an extraordinary nature and does not purport to be a

disposition of the matter on its merits. An injunction,

since it is viewed as an extraordinary remedy, is not

routinely granted. Yakus v. United States, 321 U.S. 414

(1944); Sierra Club v. Hickel, 433 F.2d 24, 33 (8th Cir.

1970) aff’d, 405 U. S. 727 (1972); Checker Motors Corp.

v. Chrysler Corp., 405 F.2d 319, 323 (2nd Cir.), cert.

denied, 394 U.S. 999 (1969); Huron Valley Publishing

Co. v. Booth Newspapers, Inc., 336 F.Supp. 659, 661

(E. D. Mich. 1972). As stated in Benson Hotel Corp. v.

Woods, 168 F.2d 694, 696 (8th Cir. 1948):

‘‘The application for such an injunction does not

involve a final determination on the merits; in fact,

the purpose of an injunction pendente lite is not to

determine any controverted right, but to prevent a

threatened wrong or any further perpetration of

injury, or the doing of any act pending the final

determination of the action whereby rights may be

threatened or endangered, and to maintain things

in the condition which they are in at the time...

until the issue can be determined after a full hear-

ing.’’

See also Hamilton Watch Co. v. Benrus Watch Co., 206

F.2d 738, 742 (2nd Cir. 1953); Perry v. Perry, 190 F. 2d

601, 602 (D. C. Cir. 1951).

This Court soundly supports the foregoing view of the

nature of such ee Pre relief. Due to the time factor

involved in the present situation, and in the majority of

the situations where this type of remedy is pursued, it

is not the province nor the design of this Court to provide

a finding on the ultimate issues of law and fact at this

time. Such a finding should be made only after all

parties have had ample opportunity to employ the liberal

discovery processes offered by the Federal Rules and to

otherwise prepare the matter in detail for presentation

to this Court in a manner conducive to sound and de-

liberate legal determination. With the foregoing in

mind, the Court will proceed to analyze the present issues

within these legal concepts.

The granting or denying of injunctive relief at the

preliminary stage of any matter requires the considera-

tion of a number of varying factors. The two that pre-

sent the starting point in any such determination are

(1) the question of ultimate success on the merits; and

(2) irreparable harm to be suffered by those seeking such

relief in the absence of the same being granted. The

Eighth Cireuit Court of Appeals has recently held that

when viewing the first of these factors, the Court must

determine whether the movant, herein the Justice De-

partment, has sustained its burden of showing ‘‘substan-

tial probability of success at trial.” Minnesota Bearing

Co. v. White Motor Corp., 470 F. 2d 1323, 1326 (8th Cir.

1973). In assessing the relative merits of a prayer for

injunctive relief, the following formulation of factors to

be considered within the two foregoing major considera-

tions is instructive:

‘“(1) The significance of the threat of irreparable

harm to plaintiff if the injunction is not granted;

4 (2) The state of the balance between this harm and

the injury that granting the injunction would inflict

on defendant;

‘*(3) The probability that plaintiff will succeed on

the merits; and

‘*(4) The public interest.’’

11 C. Wright and A. Miller, Federal Practice and

Procedure, Section 2948 at 430-431 (1973).

See e. g., Kansas-Nebraska Natural Gas Company v. City

of St. Edward, 135 F. Supp. 629 (D. Neb. 1955) (Dele-

hant, J.). Cf. Middle West Motor Freight Bureau v.

Umited States, 433 F. 2d 212, 241 (8th Cir. 1970), cert.

denied, 402 U. S. 999 (1971).

~I!

PROBABILITY OF SUCCESS

The Court has carefully studied the cases cited by both

the district and the government in their respective briefs,

as well as other cases, in the area of school segregation.

Certain general and well-known principles seem to be

clear.

De jure, or deliberate, racial segregation in public

schools is violative of the equal protection clause of the

Fourteenth Amendment of the United States Constitution.

Brown v. Board of Education, 374 U. S. 483 (1954). In

order to support a finding of de jure segregation, it is not

necessary that there be complete separation of the races.

The actions of a school board may be sufficient to con-

stitute de jure segregation without being based on a state

law, or even if they are in derogation of state law forbid-

ding segregation. United States v. Board of School Com-

missioners of Indianapolis, Indiana, 332 F. Supp. 655

(S. D. Ind. 1971), aff’d, 474 F. 2d 81, 83 (7th Cir. 1973),

cert. denied, 41 U.S. L. W. 3673 (June 25, 1973).

A neighborhood school plan is not unconstitutional

per se and is permissible if impartially maintained and

administered, even though the result is racial imbalance.

United States v. Board of Education, Independent School

District No. I, Tulsa County, Oklahoma, 429 F. 2d 1253

(10th Cir. 1970), aff’d after remand, 459 F. 2d 1253 (10th

Cir. 1972), vacated and remanded on other grounds, 41

U.S. L. W. 3671 (No. 72-190, June 26, 1973). A school

district has no affirmative obligation to achieve a bal-

ance of the races in the schools when the existing imbal-

ance is not caused by school policies and is the result of

housing patterns and other forces over which the school

administration has no control, but it does not follow from

the absence of a duty to achieve racial balance that a

Board may deliberately select sites to achieve racial segre-

gation. Davis v. School District of the City of Pontiac,

309 F. Supp. 734 (E. D. Mich. 1970), aff ’d and remanded,

443 F. 2d 573 (6th Cir.), cert. denied, 404 U.S. 913

(1971), vacated and remanded in part, 474 F. 2d 46 (6th

Cir. 1972). Deal v. Cincinnati Board of Education, 369

F. 2d 55 (6th Cir. 1966), cert. denied 389 U. S. 847 (1967),

aff’d after remand, 419 F. 2d 1387 (6th Cir. 1969), cert.

denied, 402 U. S. 962 (1971). If residential racial dis-

crimination exists, it is immaterial that it results from

private action. In some cases the school board still ean-

not build its exclusionary attendance areas upon private

racial discrimination. United States v. Board of Educa-

tion, Independent School District No. 1, Tulsa County,

Oklahoma, supra. If a neighborhood school policy is

formulated with no intent or purpose to maintain segre-

gation or to segregate, then no constitutional duty exists

to desegregate even if racial imbalance exists. There is

no affirmative duty to change school attendance districts

by the mere fact that shifts in population either increase

or decrease the percentage of either black or white pupils.

Bell v. School District, City of Gary, Indiana, 324 F. 2d

209 (7th Cir. 1963), cert. denied, 377 U. 8. 924 (1964) ;

Downs v. Board of Education, 336 F. 2d 988 (10th Cir.

1964), cert. denied, 380 U. S. 914 (1965).

A school board may not purposefully tailor the com-

ponents of a neighborhood school attendance policy so as

to conform to the racial compositions of the neighbor-

hoods and its school district, nor may it build upon pri-

vate residential discrimination. Spangler v. Pasadena

City Board of Education, 311 F. Supp. 501 (C.D. Cal.

1970) ; United States v. School District 151 of Cook Coun-

ty, IUimois, 286 F. Supp. 786 (N.D. Ill.), aff'd, 404 F. 2d

1125 (7th Cir. 1968).

Acts of omission can be as serious as acts of commis.

sion where a Board of Education has contributed to and

played a major role in the development and growth of a

segregated situation and could support a finding that the

Board is guilty of de jure segregation. Davis v. School

District of Pontiac, supra, 309 F. Supp. 734.

The decision of where or where not to construct new

schools when combined with one technique or another of

student assignment may very well determine the racial

osition of the student body in each school in the

ie People tend to gravitate towards school facilities

just as schools are located in response to the needs of the

people. Swan v. Charlotte-Mecklenberg Board of Educa-

tion, 402 U. S. 1 (1971). In this connection, open trans-

fer policies are not in themselves unconstitutional. How-

ever, where the intended and inevitable effect of such a

policy is to aggravate and increase racial segregation, ac-

tion should be taken to eliminate those segregative effects.

Monroe v. Board of Commissioners, 391 U. S. 450 (1968).

The practice of a school district in its assignment of

faculty members on the basis of race, in such a manner

that those faculty member assignments allow the school

to be recognized and considered a ‘*black’’ or **white

school, is not consistent with the protection of the Four-

teenth Amendment. Swan v. Charlotte Mecklenberg Roard

of Education, supra, 402 U. S. 1; Kelly v. Althewmer, Ar-

kansas Public School District, 378 F. 2d 483, 498-499 (8th

Cir. 1967).

recent pronouncement by the Supreme Court in

Pie v. School District No. 1, Denver, Colo., 41 U.S.

L. W. 5002 (June 21, 1973), requires that the government

must prove not only that segregated schooling exists, but

also that it was brought about or maintained by ager

tional action. The following quote from a recent case 0

Booker v. Special School District No. 1, Minneapolis,

Minn., 351 F. Supp. 799, 807-808 (D. Minn. 1972), sets

forth what this Court believes to be the general rule and

the outline of proot necessary to demonstrate a violation

of the Fourteenth Amendment:

‘‘However, it is beyond dispute that:

(a) if the state and/or the school administration

has taken any action with a purpose to segregate,

and

I f creating or

(b) if that action has had the effect o

aggravating segregation in the schools of the Dis-

trict, and

(ce) if segrégation currently exists, and

(d) if there is a causal connection between the acts

of the school administration and the current con-

dition of the segregation,

then there is segregation which is imposed by law;

and such is prohibited by the Fourteenth Amendment

to the Constitution.’’

This constitutes de jure segregation and is violative of the

Fourteenth Amendment.

The evidence presented by the government has been

primarily designed to show specific acts of the school dis-

trict, to wit: transfer policy, attendance zones, teacher

assignment, schoo] site location and portable classroonis,

in an attempt to demonstrate that these particular acts

have a bearing on the intent of the school district when

the results of those actions are determined. To be sure,

the cases cited by the government and those found by the

Court’s independent research indicate that these factors

in the proper context are indicia of segregative intent.

However, the Court also notes that there is evidence pre-

sented of reasonable school-related reasons for introduc-

ing and implementing such plans and in the absence of

findings at this stage of segregative intent, no affirmative

duty attaches to the school district. The finding of seg-

regative intent necessarily requires the Court to infer

such intent from certain objective acts. This is not-easily

done and cannot be done or justified in the state of the

present record. The fact finding process that this Court

must undertake in determining subjective intent from ob-

jective manifestations requires a full hearing on the

merits. Therefore, although the Court at this stage might

see a possibility of the government’s prevailing on the

merits when the matter is fully tried, it does not find at

this stage of the proceedings that there appears to be a

substantial probability of ultimate success at trial.

‘

IRREPARABLE HARM

As pointed out above, the injury or harm that will oc-

cur to the movant-plaintiff is of the utmost importance

in the consideration of the relief now requested. However,

the harm to be suffered by the opposing party Is also

properly considered. See, e. g., Penn Galvanizing Co. v.

Lukins Steel Co., 468 F. 2d 1021, 1023 (3rd Cir. 1972);

Sierra Club v. Hickel, supra, 433 F. 2d at 33; Congress

of Racial Equality v. Douglas, 318 F. 2d 95, 97 (5th Cir.),

cert, denied, 375 U. S. 829 (1963). The Court has at-

tempted to determine and weigh the harm that will be

suffered by all concerned if this injunction is granted or

denied. The government rests its main contention of ir-

reparable harm on the fact that a Constitutional right

will be denied the children who are forced to remain in

segregated schools if the injunctive relief is not granted.

It also contends that children will be forced to leave an

integrated school, Monroe, and go to a segregated school,

King. In addition, it maintains that irreparable harm

will be suffered if King is allowed to be opened and stig-

matized as a ‘‘black” school. On the other hand, the dis-

trict maintains that at this late date, an injunction closing

Martin Luther King or requiring it to be immediately in-

tegrated, would require changes in student assignments,

teacher assignments, and would require that many pupils

return to Franklin and Clifton Hill, both of which were

severely overcrowded before the construction of King.

As to the transfer policy, the government maintains that

all that would be required is that the students be returned

to the school which they attended last year. In rebuttal,

the district maintains that changing the schools which

students will attend at this late date will create serious

problems with parents who have provided for babysitters

for their children in a certain area of their work; in-

terrupt curriculum in the schools; interrupt extra-curricu-

lar activities; and generally result in a state of confusion

if relief must be administered before this coming Tuesday,

September 4, 1973.

The Court is not unmindful of the fact that its deter-

mination of irreparable injury to the respective parties

must depend somewhat on its determination of the likeli-

hood of success on the merits. As pointed out above, the

government certainly indicates some possibility of suc-

ceeding on the merits, but it has failed to prove a sub-

stantial likelihood of success at this point. The Court

finds that the harm to the district and all the children

of the Omaha School District at this point, including the

class which the plaintiff represents, would be greater than

the harm in continuing ‘‘possible” unconstitutional segre-

gation. The Court reaches this conclusion after careful

deliberation and is aware of the possible injury or harm

that may be incurred by the students if a violation of the

Fourteenth Amendment is found to exist after a full

hearing on the merits. On the other hand, at the present

time, a granting of this injunction would require many

students to return to portables and cottages used at Clif-

ton Hill and Franklin where overcrowded conditions have

clearly existed which King is at least in part designed

to alleviate. Further, the confusion resulting by re-

voking all the transfers given this summer would be mam-

moth, as would the confusion with reference to the re-

planning and re-programming of curriculum, extra-cur-

ricular activities and teacher assignments.

In addition to balancing the relative harms that

would be suffered by the defendants or plaintiff and the

class it represents in this suit, the Court when analyzing

the granting or denying of a preliminary injunction, may

also legitimately consider the public interest. Yakus v.

United States, supra, 321 U.S. at 414.—Phe Court finds

that the public interest in opening schools on September

4, 1973, in a re’atively unconfused and stable manner, is

important to the children and may very well alleviate and

cause less problems than would any purported segregated

situation.

In conclusion, this Court finds that the motion for a

preliminary injunction should be denied. In doing so, it

in no way indicates that the government does not have a

possibility of success at the trial herein. The denial stems

from the evidence so far presented and in the record to

date there has been no showing of substantial probability

of success. In order to ascertain the intent of the dis-

trict over the years in question, a full hearing on the

merits is clearly required, so that this Court can carefully

examine and weigh the facts within the context of their

occurrence. As stated in Webb v. Board of Education

of the City of Chicago, 223 F. Supp. 466 (N. D. I. 1963),

which involved strikingly similar issues to the questions

presented here:

‘‘It is not necessary for the Court to determine at this

time the respective merits of these contentions. We

need only note that substantial questions of fact are

raised as to whether the segregation complained of

is the result of an active and intentional design of

the defendants."’

Accordingly, plaintiff’s motion for a preliminary in-

junction is denied, the order of denial being separately

entered herein.

By the Court:

/s/ Albert G. Schatz,

Judge, United States District Court

IN THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF NEBRASKA

CIV. 73-0-320

UNITED STATES OF AMERICA,

Plaintiff,

Vs.

THE SCHOOL DISTRICT OF OMAHA, STATE

OF NEBRASKA, et al.,

Defendants.

ORDER

(Filed August 31, 1973)

This matter coming on for hearing on the plaintiff's

Motion for Preliminary Injunction, and the Court being

fully advised in the premises,

IT IS ORDERED, ADJUDGED AND DECREED that

said motion be and the same is hereby denied; that a

memorandum opinion containing the Court’s findings of

fact and conclusions of law will be prepared and filed by

the Court in accordance with this order, at a later date.

DATED this 31st day of August, 1973.

By the Court:

/s/ Albert G. Schatz,

Judge, United States District Court

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

CIV. 73-0-320

UNITED STATES OF AMERICA,

Plaintiff,

and

NELLIE MAE WEBB, et al.,

Applicants for Intervention,

vs.

THE SCHOOL DISTRICT OF OMAHA,

State of Nebraska, et al.,

Defendants.

MEMORANDUM OPINION

(Filed November 27, 1973)

This matter is before the Court on motion for interven-

tion, or in the alternative for consolidation, filed by the

above-named applicants, in a cause pending before this

Court since August 10, 1973. Applicants move for the

entry of an order allowing their intervention as plaintiffs

pursuant to Rule 24 (a) (2), Federal Rules of Civil Pro-

cedure. Alternatively, applicants seek intervention pur-

suant to Rule 23 (b) (2). In the event intervention is de-

nied, applicants move that the Court consider the com-

plaint filed by them as initiating a separate action and

that the same be consolidated with the pending action pur-

suant to Rule 42 (a).

Applicants are black parents and their children who re-

side within the Omaha Public School System. The chil-

dren-plaintiffs attend schools in the system. The com-

plaint filed by the applicants and attached with their mo-

tion for intervention alleges that officials of the Omaha

Public School System have engaged in racial discrimina-

tion in the operation of the Omaha Public Schools in vio-

lation of the Fourteenth Amendment to the United States

Constitution. On August 10, 1973, the Attorney General,

on behalf of the United States, filed suit in this Court pur-

suant to Title IV of the 1964 Civil Rights Act (42 U.S.C.

§ 2000e-6 (a) and (b)) against the Board of Education of

the School District of Omaha, its members and the Super-

intendent of the Omaha Schools. This complaint also al-

leges, inter alia, that defendants have engaged in racial

discrimination in the operation of the Omaha Public

School system in violation of Title IV of the Civil Rights

Act of 1964 and the Fourteenth Amendment to the Con-

stitution of the United States.

Applicants herein assert that they are entitled to inter-

vene in the aforementioned suit filed by the Attorney

General as a matter of right pursuant to Rule 24 (a) (2),

supra. This Rule (intervention of right) provides that

‘‘upon timely application, anyone shall be permitted to

intervene in an action: * * * when the applicant claims an

interest relating to the property or transaction which is

the subject of the action and he is so situated that the

disposition of the action may as a practical matter im-

pair or impede his ability to protect that interest, unless

the applicant’s interest is adequately represented by ex-

isting parties.’’

So far as this matter is concerned, Rule 24 (a) (2) es-

tablishes three conditions for intervention of right: the

applicant’s interest must relate to the property or trans-

action which is the subject of the principal action; appli-

cant must be so situated that the disposition of the main

action may as a practical matter impair or impede his

ability to protect that interest; and that applicant’s in-

terest is not adequately represented by existing parties.

The Court has no doubt that the claims of the applicants

herein relate to the transaction which is the subject mat-

ter of this action and that applicants are situated so that

a disposition of the action herein may, as a practical mat-

ter, impair or impede their ability to protect their in-

terest. However, the Court finds that the motion to in-

tervene, as a matter of right, must fail because of the

third condition, supra.

So far as adequacy of representation is concerned, the

controlling rule is well settled ‘‘that representation is ade-

quate if there is no collusion between the representative

and an opposing party, if the representative does not

have or represent an interest adverse to the applicant,

and if the representative does not fail in the fulfillment of

his duty.’’ Peterson v. United States, 41 F.R.D. 131 (D.

Minn. 1966). See also Stadin v. Union Electric Co., 309

F. 2d 912 (8th Cir. 1962), cert. denied, 373 U. S. 915

(1963). All of these conditions have been met in this

ease. Clearly there has been no collusion between the

existing parties, and indeed, there is no allegation or evi-

dence of any collusion, or of any nonfeasance or neglect

of duty. Further, the representative (plaintiff, United

States of America) does not have or represent an interest

adverse to the applicants-intervenors. Their respective

goals are neither conflicting nor potentially conflicting and

both the representative-plaintiff and applicants pursue the

same end result. Nor can it be said, and it does not ap-

pear that the applicants seriously contend, that plaintiff

has failed in any segment of its duty to assert the inter-

ests that the intervenors would support. Counsel for

plaintiff have acted vigorously and efficiently in this re-

gard and the record thus far reflects diligence and thor-

oughness. This Court has no doubt that applicants have

been and still are afforded more than adequate represen-

tation by the plaintiff.' See United States v. Board of

School Commissioners, Indianapolis, 466 F. 2d 573 (7th

Cir. 1972), cert. denied, sub nom, 410 U. S. 909 (1973) ;

Moore v. Tangipahoa Parish School Board, 298 F. Supp.

288 (E. D. La. 1969).

Applicants urge a liberal interpretation and construc-

tion of Rule 24(a) (2) and it would appear that the

Courts in this District and the Court of Appeals for the

Eighth Circuit have traditioi.ally followed this view. How-

ever, as stated in Peterson v. United States, supra, * lib-

erality, however, does not equate with rights of indiscrim-

inate intervention.’ The bounds of the Rule are to be

observed. ’’

Alternatively, applicants pray for leave to intervene

under Rule 24 (b) (2), Federal Rules of Civil Procedure,

providing for permissive intervention. This Tule, as ap-

plicable here, provides that upon timely application, any-

one may be permitted to intervene in an action when the

1. “When intervenors claim they are not being adequately rep-

resented by the Government, courts should be very hesitant

to hold such representation inadequate, ‘at least in the absence

of any claim of bad faith or malfeasance on the part of the

ent * * * ’ Sam Fox Publishing Co. v. United States,

U. S. 683, 689, 81 S. Ct. 1309, 1313, 6 L. Ed. 2d 604;

vy. Board of Education of Manhasset, supra, 229 F.

. at 715. See generally, 4 Moore’s Federal Practice, Par.

24.08.” Moore v. Tangipahoa Parish School Board, 298 F.

Supp. 288, 292, n. 10 (E. D. La. 1969).

‘

applicants’ claim or defense and the main action have a

question of law or fact in common. If these conditions

are met, the trial court may, in its discretion, permit in-

tervention if to do so would not unduly delay or prejudice

adjudication of the rights of the original parties.

It is beyond dispute that the claims of intervenors are

hased upon common questions of law and fact with the

issues raised in the main action and, although not entirely

prompt, the intervention sought here cannot be said fo

be completely untimely. Although the issues in the main

action have been made up and drawn since September 18,

1973, and although a lengthy hearing has heretofore been

held with regard to plaintiff’s motion for a preliminary

injunction, and although discovery proceedings have al-

ready been instituted, the longest portion of the road lies

ahead. In view of these conditions having been met. this

Court may permit intervention under Rule 24(b) (2),

supra, if to do so would not unduly delay or prejudice

adjudication of the rights of the original parties, and in

this connection the Court believes tuere will be no undue

delay nor will the presence of the applicants-intervenors

interfere with or prejudice the rights of the present par-

ties so far as an adjudication on the merits is concerned.

[t should be noted here that so far as discovery proceed-

ings are concerned, the Court has already, as of the day

the motion to intervene was heard, permitted the appli-

cants to participate in any discovery which was to be c2r-

ried out pending this Court’s determination of whether to

allow intervention herein.

However, in permitting intervention under Rule 24/1)

(2), which the Court is allowing, the intervention will }b«-

subject to the following conditions in order to protect the

interests of the original parties and permit due and effi-

cient administration of justice :’

2. Permissive intervention is often made conditional in order tu

protect the interests of the existing parties. See generally.

(Continued on following page)

(1) Intervenors will not be permitted to assert any

defenses or claims previously adjudicated by the Court;

(2) Intervenors may not reopen any questions that

have previously been decided by the Court;

(3) All evidence heretofore adduced, prior to inter-

vention, shall stand and be read as evidence bearing upon

the existence and enforceability of the alleged rights and

claims of intervenors, so far as pertinent thereto, and

shall be considered by the Court in the determination of

said rights and claims subject to such objections to said

evidence as were made during the presentation thereof;

(4) All evidence adduced in this cause prior to inter-

vention and proof or disproof of points common to the

alleged claims of the original plaintiff and intervenors

shall stand as evidence, to be considered by the Court on

such common points;

(5) Discovery proceedings initiated or already com-

pleted shall stand without duplication.

It is, therefore, the order and ruling of this Court that

the applicants’ motion to intervene as a matter of right

is denied: that applicants’ motion for permissive interven-

tion is hereby granted, subject to the conditions as set

forth herein above; that in view of the Court’s ruling on

applicants’ motion for intervention, it is unnecessary for

the Court to discuss or determine applicants’ motion for

(Continued from previous page)

C. Wright and A. Miller, Federal Practice and Procedure,

Section 1922 (1972); Stell v. Savanah-Chatham County Board of

Education, 255 F. Supp. 8& (S.D. Ga. 1966); Knowles v. Board

of Public Instruction, Leon County, Florida, 405 F. 2d 1206 (5th

Cir. 1969): Galbreath v. Metropolitan Trust Co. of California,

134 F. 2d 569 (10th Cir. 1943); Mathieson v. Craven, 247 F. 223

(D. Del. 1917).

consolidation under Rule 42 (a). A separate order is en-

tered this day.

By the Court:

/s/ Albert G. Schatz

Judge, United States District Court

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

CIV. 73-0-320

UNITED STATES OF AMERICA,

Plaintiff,

and

NELLIE MAE WEBB, et al.,

Applicants for Intervention,

VS.

THE SCHOOL DISTRICT OF OMAHA,

State of Nebraska, et al.,

Defendants.

ORDER

(Filed November 27, 1973)

_ This matter coming on for hearing on applicants’ mo-

tion to intervene as a matter of right under Rule 24(a)

(2), Federal Rules of Civil Procedure, or in the alterna-

tive, to intervene pursuant to Rule 24(b)(2), of said

Rules, or in the event intervention is denied, that the

Court consider the complaint filed by them as a separate

action for consolidation with the pending action pursuant

to Rule 42(a), and the Court being fully advised in the

premises,

IT IS ORDERED that applicants’ motion for inter-

vention as a matter of right pursuant to Rule 24(a)(2),

Federal Rules of Civil Procedure, is denied;

IT IS FURTHER ORDERED that applicants’ motion

for leave to intervene under Rule 24(b)(2) is granted,

subject to the conditions as set forth in the Memorandum

Opinion herewith filed. It is unnecessary to discuss and

determine applicants’ motion for consolidation under

Rule 42(a).

IT IS FURTHER ORDERED that defendants are

granted twenty (20) days from the date hereof to respond

to intervenors’ complaint filed herein.

BY THE COURT:

/s/ Albert G. Schatz

Judge, United States District Court

IN THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF NEBRASKA

CIV. 73-0-320

UNITED STATES OF AMERICA,

Plaintiff,

and

NELLIE MAE WEBB, et al.,

Intervenors,

vs.

THE SCHOOL DISTRICT OF OMAHA,

State of Nebraska, et al.,

Defendants.

MEMORANDUM OPINION

(Filed October 15, 1974)

This school desegregation case was filed by the United

States on August 10, 1973, under the authority of 42

U.S.C. § 2000e-6 (a). Jurisdiction is also present under

28 U.S.C. $1345. The defendants are the School Dis-

trict of Omaha, State of Nebraska; the Superintendent

of Schools for the School District; and the twelve mem-

bers of the Board of Education for the School District.

The plaintiff’s complaint alleges that the defendants hate

engaged in racial discrimination in the operation of the

Omaha Public Schools in violation of Title IV- of the

Civil Rights Act of 1964 and the Fourteenth Amendment

to the United States Constitution. The defendants deny

that the Omaha Public Schools have been operated in a

manner which discriminates against any students on the

basis of race, and affirm the School District’s adherence

to a racially neutral neighborhood school assignment pol-

icy.

The plaintiff's complaint was accompanied by a mo-

tion for a preliminary injunction. A full evidentiary

hearing was held, and the motion was denied, United

States v. School District of Omaha, State of Nebraska,

367 F. Supp. 179 (D. Neb. 1973). Thereafter, certain

black children attending the Omaha Public Schools and

their parents, representing a class of all other similarly

situated black children and their parents, were permitted

to intervene as plaintiffs in this lawsuit under Rule 24

(b), Fed. R. Civ. P., 367 F. Supp. 198 (D. Neb. 1973).

The trial of this case was begun on March 4, 1974, and

concludued on March 20, 1974. A schedule for the prep-

aration of post-trial briefs and proposed findings of fact

was established, and the entire matter was submitted to

the Court on June 5, 1974.

The Omaha Public Schools have never been operates!

under a statutorily or constitutionally required dual sys-

tem. Therefore. the legal principles upon which claims

with respect to this school system must be resolved are

those set forth by the Supreme Court in Keyes v. School

District No. 1, Denver, Colorado, 413 U. S. 189 (1973).

Under Keves, a constitutional violation is found where:

(1) There is a current condition of racial segrega-

tion; and

(2) This condition has been caused or maintained by

intentional state action.

There is no question here that the actions of the de-

fendants constitute state action. Nor is it open to doubt

that there is a substantial degree of racial imbalance with-

in some of the Omaha Public Schools. The issue upon

which this litigation is focused is whether the racial im-

balance has been intentionally caused or maintained by

the defendants.

A determination of the intent of a person or a public

body with respect to action or inaction on any question

is necessarily difficult. In evaluating the evidence intro-

duced at trial the Court has kept in mind certain prin-

ciples concerning the finding of intent:

(1) The burden of proof on this issue lies upon the

plaintiff and the intervenors to show an intentionally seg-

regative policy practiced in a meaningful or significant

portion of the school system. The burden then shifts to

the defendants to show that their actions as to any other

segregated schools within the system were not motivated

by segregative intent. Keyes, 413 U. S. at 208-9.

(2) There are very few school desegregation cases in

which the defendants admit segregative intent. Such in-

tent must then be inferred from objective actions of the

defendants. United States v. Board of School Commis-

sioners of Indianapolis, Indiana, 474 F. 2d 81 (7th Cir.

1973). cert. denied, 413 U. S. 920 (1973).

(3) There is some dispute among the parties concern-

ing how the Court is to weigh the natural and foreseeable

consequences of the defendants’ decisions to act or not to

act in any given area. Prior to Keyes, it had been held

that school boards were accountable for the natural and

foreseeable consequences of their actions, regardless of in-

tent or motivation, United States v. Texas Education

Agency, 467 F. 2d 848, 863-5 n. 25 (5th Cir. 1972). This

view no longer appears to be the law in light of the Keyes

emphasis on intent. The Ninth Circuit has specifically so

held, Johnson v. San Francisco Unified School District,

No. 71-1877 (Filed June 21, 1974); Soria v. Oxnard School

District Board of Trustees, 488 F. 2d 579 (9th Cir. 1973).

But the error reversed in Johnson and Soria was the re-

jection by the trial courts of the importance of determin-

ing intent, not the method of determining it. This Court

is of the opinion that the natural and foreseeable conse-

quences of the defendants’ actions are neither determina-

tive nor immaterial, but rather constitute one additional

factor to be weighed in evaluating the defendants’ overall

intent. Oliver v. Kalamazoo Board of Education, 368 F.

Supp. 143 (W. D. Mich. 1973).

I. BACKGROUND

The defendant School District of Omaha has within its

boundaries the majority of the City of Omaha, Nebraska,

as well as a part of Sarpy County, Nebraska. A portion

of Omaha in the southwest sector of the City is served

by School District 66. The schools operated by the de-

fendants, however, are commonly referred to as the Oma-

ha Public Schools. United States census data show that

in 1940 there were 12,015 black citizens in Omaha, com-

prising 5.3 per cent of the population. By 1950 the num-

ber was 16,311, or 6.5 per cent of the total. In 1960 it

was 25,155, or 8.3 per cent, and in 1970, it was 34,431, or

9.9 per cent. By way of comparison, the percentage of

black students enrolled in the Omaha Public Schools has

increased from 6.6 per cent in 1940 to 9.4 per cent in 1950,

to 14.2 per cent in 1960, to 18.6 per cent in 1970, and to

19.8 per cent in 1973-74.

During the 1950's, black persons in Omaha resided gen-

erally in an area known as the Near North Side, bounded

roughly by Cuming Street on the south, Wirt Street on

the north, 33rd Street on the west, and Florence Boule-

vard on the east. Census tract information is available

which was compiled by the School District of Omaha as

required by state law and which shows the concentration

of black school age children, ages five through twenty,

throughout the City on a scale of less than one per cent,

one to twenty-five per cent, twenty-six to fifty per cent,

fifty-one to seventy-five per cent, and seventy-six to one-

hundred per cent. This information shows that in 1952-

53, the only elementary attendance zone with as high as

seventy-six to one-hundred per cent black school age

children was the Long school zone. This zone sits almost

directly in the center of the Near North Side. The only

zones with fifty-one to seventy-five per cent black school

age children were Lake, immediately to the northeast of

Long, and Howard Kennedy, immediately to the north-

west of Long. The only zone with twenty-six to fifty per

cent black school age children was Kellom, immediately

to the southeast of Long. Various other zones had one to

twenty-five per cent black school age children, and they

were scattered near the schools above mentioned and in

the eastern and southeastern portion of the School Dis-

trict.

By 1959-60. there were seventy-six to one hundred per

cent residential concentrations of hlack school age chil-

dren in the Long, Howard Kennedy and Lothrop (im-

mediately north of Lake) zones. Fifty-one to seventy-

five per cent concentration resided in the Lake and Druid

Hill (immediately north of Kennedy and west of Loth-

rop zones). The only twenty-six to fifty per cent con-

centration was again in Kellom. One to twenty-five per

cent concentrations resided on the north and southwest

fringes of the above-mentioned schools, in two isolated

schools in the central portion of the District, and in a

— of seven zones in the southeastern portion of the

istrict.

By 1969-70, there were seventy-six to one hundred per

cent residential concentrations of black school age chil-

dren in the Long, Kennedy, Lake, Kellom, Lothrop and

Druid Hill zones. Fifty-one to seventy-five per cent con-

centrations resided in the Monmouth Park (immediately

to the northwest of Druid Hill), Saratoga (immediately

to the north of Lothrop) and Franklin (immediately to

the west of Lonz and Kennedy) zones. Twenty-six to

fifty per cent concentrations resided in the Clifton Hill

(immediately to the west of Franklin, Kennedy and Druid

Hill), Central Park (immediately to the west of Mon-

mouth Park) and Indian Hill (in the southeastern portion

of the District) zones. Schools with one to twenty-five

per cent concentrations generally bordered the above-

mentioned zones. Thus, by 1969-70, the last year for

which these census tracts are in evidence, there can be

seen a definite increase in the concentration of black school

age children residing in the northern and eastern portions

of the District, including the area referred to in the 1950’s

as the Near North Side, and a gradual increase in concen-

tration in the zones to the west and north of the Near

North Side. Also, there was by 1969-70 a small but ap-

parently growing concentration of black children resid-

ing in the southeastern portion of the District.

II. ELEMENTARY SCHOOLS

For the school year 1973-74, there were seventy-nine

elementary schools within the defendant School District,

serving 33,495 students, of whom 6,876 (or approximately

twenty per cent) were black. The elementary schools are

the heart of the defendants’ neighborhood school policy.

Geographic boundaries are drawn for each school and

the students living within the boundaries of a certain

school are expected to attend that school.

The plaintiff and intervenors allege that in the ele-

mentary schools the defendants have departed from the

neighborhood school policy in two ways and that these

departures have been made with segregative intent. They

are:

(1) The adding of capacity to relieve overcrowding

(2) The alteration of attendance zones.

—

——

(1) THE ADDING OF CAPACITY

There have been periods in the operation of the Omaha

Public School System in which many of the elementary

schools have enrolled numbers of students in excess of

the published capacities for those schools. The School

District’s response to these overcrowding problems has

generally been either to increase the capacity at the

existing schools by use of tempo classrooms, or

to construct new schools (the discussion of which is found

at page 42, infra.). The earliest use of temporary class-

rooms by the defendant School District which is reflected

in the record is in the early 1950’s, and the evidence

shows an increasing use of temporary classrooms through-

out the 1960’s and to the present time. Currently there

are substantial numbers of temporary classrooms in

schools with high black enrollments. However, there are

also substantial numbers of such units in the far northern

and western portions of the School District, in predomin-

antly white schools located in predominantly white resi-

dential areas.

As diseussed earlier in this opinion, there has been a

weneral shifting of the concentration of the black student

population within the School District in the northerly

and westerly directions from the area once known as

the Near North Side. There has been no showing that

the placement of temporary classrooms has corresponded

to this shifting, and there is no support in the record

for a conclusion that these units have been placed in

certain schools for the purpose of containing black stu-

dents in those schools.

The plaintiff and intervenors complain specifically of

the placement of temporary classrooms at Franklin and

Clifton Hill schools. These schools have adjacent atten-

dance zones and are located in the north-central portion

of the School District. The racial compositions of both

schools have followed a parallel course: predominantly

white throughout the 1950’s;' majority white in the mid-

1960’s; majority black in the mid-late 1960’s; currently

predominantly black. Thus, the enrollments at these

schools reflect the black residential shift mentioned

earlier. Also, both of these schools began experiencin :

increasing enrollments in the early to mid-1960'’s. The

School District’s response was to supply these buildings

with temporary classrooms. By 1971-72, Franklin was

over-capacity by 317 pupils and had thirteen tempvur-ry

classrooms, while Clifton Hill was 255 pupils over ca-

pacity and had twelve temporary classrooms. The

schools adjacent to Franklin on the south, southwest and

west, are Yates, Saunders and Walnut Hill, respectively,

which have always been predominantly white and which

through 1971-72, hed generally been under the published

capacity. The schools adjacent to Clifton Hill on the

west and northwest are Rose Hill and Fontenelle, re-

spectively, which through 1971-72 were predominantly

white and under capacity.

The plaintiff and intervenors argue that substantial

reductions in racial imbalance at all the above-mentioned

schools would have resulted if the School District had

restructed the attendance requirements for these schools

(e. g., by redrawing boundaries or by reassigning grades

of students), and that the failure of the School District

to do so is evidence of segregative intent.

The Court agrees that some restructuring was possible

which would have increased a better racial balance at

all these schools, and that by continued restructuring

over the vears, a substantial degree of integration could

have been maintained. But it is also clear that at the

time in question, this restructuring of enrollments.

whether by the altering of attendance zones or by the

shifting of grades between schools, simpivy was not °

1. Throughout this litigation the parties have used the term

‘“‘predominantly”’ to refer to racial compositions in excess of

sixty-five per cent.

method used by the School District to alleviate over-

crowding. There is some evidence of such practices in

the 1950’s and early 1960’s, but the amount of this

restructuring was, even then, not substantial. By the

mid-1960’s, it is clear that the School District emphasized

use of temporary classrooms as the primary measure for

dealing with increased enrollments.

Further. the Court notes that the increase of capacity

by use of temporary classrooms had an integrative effect

for some schools. For example, from 1964-65 through

1972-73, the black enrollment at Miller Park increased

from seven to 245 (1.1 per cent to 40.5 per cent) and

the number of temporary classrooms increased from

zero to ten. From 1967-68 through 1972-73, the black

enrollment at Belvedere increased from 23 to 221 (2.5

per cent to 24.7 per cent) and the number of temporary

classrooms grew from zero to six. From 1962-63 through

1972-73, the black enrollment at Central Park grew from

three to 348 (.4 per cent to 46.9 per cent) and the

number of temporary classrooms grew from three to ten.

This evidence does not, of course, prove that the School

District used temporary classrooms with an integrative

intent. But it is some evidence that the Board acted with

no racial intent at all, and this is precisely the Court’s

conclusion. The evidence presented simply shows that

use of temporary classrooms was the School District’s

choice for dealing with the overcrowding; that there was

no pattern or design of placement of these classrooms on

a racially discriminatory basis; and that, therefore, any

segregative effects of the use of temporary classrooms

were not intentionally caused or maintained by the de-

fendants.

(2) ALTERATION OF ATTENDANCE ZONES

As mentioned previously, changes in elementary atten-

dance boundaries have been infrequent in the Omaha

Public Schools. There are two such changes, however,

which the plaintiff and intervenors allege had a segrega-

tive effect and which were made by the School District

to achieve that effect.

The first of these concerns Druid Hill and Monmouth

Park Schools. Between 1957-58 and 1958-59, a portion

of land just north and west of the Belt Line Railway

was removed from the Druid Hill (majority black) zone

and added to the Monmouth Park (predominantly white)

zone. There is no way of determining the number of

students involved in this transfer, nor their race, although

an inference is permissible from other exhibits and evi.

dence that this residential area was largely white. In

any event, the adjustment is plausibly explained by the

School District, and the Court finds that this explana-

tion is devoid of any segregative intent: in the spring

of 1958 a Druid Hill student crossing the Belt Line Rail.

road tracks going home for lunch was nearly struck by

a train. Thereafter, the portion of the Druid Hill zone

across the tracks and nearest to Monmouth Park Schoo!

was assigned to that school until 1965, when a cafeteria

was installed in Druid Hill.

The second boundary adjustment also occurred between

1957-58 and 1958-59, when a primarily white residential

section of the Webster (majority white) zone was re

moved from that school and added to the adjacent Yates

(predominantly white) zone. In 1959-60, the Webster

seventh and eighth grades were removed from that school

and assigned to Technical Junior High, which was

rapidly becoming majority black. The seventh and eighth

grades were retained at Yates. The plaintiff and inter-

venors allege that this boundary change between 1957-58

and 1958-59 thus permitted white seventh and eighth

grade students to avoid attendance at Technical Junior

High. The facts, however, show no sudden increase in

the Yates seventh and Eighth grade enrollment. The

Yates grade to grade progression for the 1959-60 seventh

and eighth grade students shows a relatively constant

pattern—1956-57 fourth and fifth grades: 45 and 33:

1957-58 fifth and sixth grades: 44 and 36; 1958-59 sixth

and seventh grades: 44 and 43; 1959-60 seventh and

--2+

eighth grades : 44 and 38. Thus, the Court concludes

that few, if any, seventh and eighth grade students were

thus excluded from Technical Junior High and that there

Was no segregative effect to this boundary change.

In conclusion, the Court finds that these two instances

of boundary changes were not prompted by any segrega-

tive intent of the School District, and with regard to the

Yates-Webster situation, the Court finds that there was

not even any segregative effect.

Ill; JUNIOR HIGH SCHOOLS

The plaintiff and intervenors allege that the operation

of the junior high system, especially as it concerns

Technical Junior High and Horace Mann Junior High

evidences segregative intent on the part of the Omaha

School District. They further allege that this segrega-

tive intent can be determined in three ways:

(1) Through the initial placement of the junior highs

= the establishment of elementary feeder schools for

em;

(2) Through the manner in which the elementary pro-

grams were converted from K-8 through K-6, including

the retention of some schools as K-8;

(3) Through the establishment of optional attendance

zones for some seventh and eighth grade students.’

2. The plaintiff and intervenors also allege that in two instances

the defendants deliberately formulated student assignment

policies so as to avoid sending white students to Technical

Junior High. The first of these concerns the defendants’ al-

leged practice of sending white ninth grade students from the

overcrowded Lewis and Clark Junior High past the Technical

facility to Central from 1960-61 through 1962-63. The second

concerns the failure of the defendants to provide Technical

High as an option for ninth grade students new to the City

or entering the public schools from parochial schools, both of

which dealt with certain limited areas of the School District.

(Continued on following page)

The plaintiff and intervenors argue that by these means

the School District has concentrated black students in

Technical Junior High and Horace Mann Junior High

and has permitted white students who live near these

schools to avoid mandatory assignment to them. The

School District denies the existence of segregative intent,

reaffirms its application of a racially neutral neighbor-

hood school policy, and offers explanations for deviations

therefrom.

(1) INITIAL PLACEMENT AND

FEEDER PATTERNS

Prior to approximately 1950, the Omaha School Dis-

trict provided instruction in two school settings, one for

grades K through 8, and another for grades 9 through

12. The junior high system, whereby grades 7 through 9

are offered and housed in a separate setting, was pro-

posed to the Omaha Public School System as early as

1917, although no action on this proposal was taken at

that time. The idea was revived in the 1951 Study of

Plant Facilities and Requirements published by the

Omaha Board of Edueation. Nine junior highs were pro-

posed—one for each of nine geographical portions of the

District. Some were to be housed in buildings to be con-

structed, some in converted elementary facilities, and one

(Technical Junior High) in a portion of a senior high

school building.

For the areas in which substantial concentrations of

black school age children later came to reside, two junior

(Continued from previous page)

The evidence on these points is far from clear, and does

not establish that these were indeed the defendants’ practices.

Moreover, there is no basis for determining the number of

students, if any, affected by these alleged policies. The Court,

therefore. does not consider them evidence of segregative in-

tent.

highs were proposed. The first of these was Technical

Junior High, located on the site of Technical Senior High

at 33rd and Cuming Streets, which was on the southwes-

tern border of the area known as the Near North Side.

The designated feeder elementary schools for Technical

Junior High and their racial enrollments for the 1951-52

sc ool year as compared to the 1973-74 school year are

as follows:

1951-52 1973-74

White Black White Black

Central Grade 431 5 107 21

Kellom 365 356 40 8470

Lake 254 8319 38 =141

Long’ 0 433 32 355

Webster 223 122 Closed after ’68-69

Yates 367 0 196 50

“—r 1,640 1,235 413 1,037

The second of these junior highs was to be made by re-

moving the elementary students from Druid Hill School

and converting it to a junior high. The feeder schools

and their racial enrollments for the 1951-52 school year

as compared to the 1973-74 school year are as follows:

3. Long has been replaced by Conestoga.

1951-52 1973-74

White Black White Black

Central Park 566 0 307 351

Druid Hill 260 55 35 308

Monmouth Park 400 0 98 353

Howard Kennedy 4 346 3 622

Lothro,; 511 258 11 627

Saratoga 587 0 77 922

TOTAL 2,328 659 531 2,783

By 1955, none of these junior highs, with the exception

of Technical Junior High on a limited basis, were in

operation. The 1955 Study of School Enrollment and

Plant Facilities published by the Omaha School Board

proposed a new system of eleven junior highs. For the

areas which then and later had substantial concentrations

of bleek school age children, three junior highs were pro-

posed. The first was again Technical Junior High, which

had already received the seventh and eighth grades from

KXellom and Central Grade Schools. The proposed feeder

schools for Technical Junior High and their racial enroll-

ments for 1955-56 as compared to 1973-74 are as follows:

1955-56 1973-74

White Black White Black

Franklin 683 19 80 554

Kellom 376 48] +0 470)

Webster 227 118 Closed after '68-69

TOTAL 1,286 618 120 1,024

In place of the converted Druid Hill Junior High of the

1951 study, the 1955 study proposed a Paxton Boulevar«l

junior high. The proposed feeder schools and their racial

enrollments for 1955-56 as compared with 1973-74 are:

1955-56 1973-74

_ White Black White Black

Central Park 680 0 307 351

Druid Hill | 241 175 35 308

Monmouth Park 537 0 98 353

Saratoga 649 3 77 522

TOTAL 2,107 178 517 —-:1,534

In addition to these, the 1955 Study also proposed a

Near North Side junior high, to be erected on the north-

ern edge of Adams Park, although the Board realized ac-

quisition of park property would be difficuit. The feeder

schools for this junior high and their racial enrollments

for 1955-56 as compared with 1973-74 are:

1955-56 1973-74

White Black White Black

Howard Kennedy 41 726 3 622

Lake 312 = 508 38 141

Long 34 480 32 355

( Conestoga )

Lothrop 382 603 11 627

TOTAL 769 2,317 84 1,745

During the vears 1956-62, a number of junior highs

were opened in the Omaha School District. Neither the

Paxton Boulevard junior high nor the Near North Side

junior high were among them. However, a new junior

high was constructed near Twentieth and Pratt Streets,

approximately five blocks north of the Near North Side.

This School, Horace Mann Junior High, opened in the

1959-60 school year. The racial enrollment at Mann was

177 white and 443 black in that year and has been pre-

dominantly black ever since. In 1958-59, McMillan Junior

High, also in a new building, was opened at 38th and

Redick Streets, to the north and west of Mann. It was

completely white when opened but the percentage of

blacks has steadily increased and in 1973-74, black stu-

dents comprised thirty-six per cent of the enrollment.

With respect to Technical Junior High, the foregoing

paragraphs describe the planned feeder schools. How-

ever, these plans never materialized. The actual evolu-

tion of the Technical Junior High* zone consisted of the

piece-meal designation of various elementary schools to

Technical Junior High as follows:

Year 7th& Enrollment at Enrollment at

8th Grades This School Technical Junior

Assigned to forthat Year High for that

Technical Year

Junior High

White Black White Black

Kellom 1950-51 402 350 66 76

Central Grade 1951-52 431 d 162. 135

_ Long 1955-56 34 480 171 162

Franklin 1957-58 618 18 274 273

Webster 1959-60 143 111 363 323

4. After the School District converted to the K-6-3-3 system, the

other junior highs eventually housed grades 7-9, and the senior

highs grades 10-12. At Tech, however, the junior high has

always housed only grades 7-8. while the senior high housed

grades 912. Central, North and South High Schools also

house ninth grade students.

On a geographical basis, these five schools were the

closest to Technical Junior High with the exception of

Yates and the possible exceptions of Saunders and Wal-

nut Hill, all of which were predominantly white from 1950

to the present.

After 1959-60, enrollment at Technical Junior High was

amplified only by its assignment as an optional junior

high for certain elementary schools and the designation

of Yates as a feeder school in 1970-71. In 1960-61 and

1961-62, Technical Junior High was majority white. In

1962-63, it turned majority black and from that point on,

the percentage of black students has risen steadily, reach-

ing over ninety-five per cent in the late 1960’s. The

junior high program at Technical was closed after the

1971-72 school year.

With the exceptions described below, students are and

have been assigned to junior high schools according to

the neighborhood school policy. Geographic boundaries

exist for each junior high which generally correspond to

the boundaries of designated elementary schools near that

junior high. Thus these elementary schools become feed-

ers for the junior highs. In some cases the junior high

boundary may not correspond exactly to the elementary

school boundary, and two students who attended the same

elementary school may be assigned to different junior

highs.

(2) CONVERSION FROM K-8 TO K-6

Most elementary schools lost their seventh and eighth

grades to junior high schools during the 1956-62 junior

high construction. As of the 1962-63 scho»l year, there

were sixteen elementary schools which were still housing

the seventh and eighth grades. These schools were lo

cated across the entire middle and eastern portion of the

School District, in both the north and south parts of the

City, and in both the black and white residential areas.

By the 1964-65 school year, only seven of these schools

remained K-8. Feur of these seven, Jackson, Mason,

Walnut Hill and Yates, were located such that the closest

junior high was Technical Junior High. Two of the

seven, Pershing and Sherman, were located such that the

closest junior high was Mann. For the school years 1964-

65 through 1971-72 all six of these elementary schools

had predominantly white enrollments, while Technical

Junior High and Mann were both predominantly black.’

Aside from certain limited testimony concerning Yates

School,® there is no direct evidence concerning the intent

of the defendant School District in failing to convert any

of the elementary schools from K-8 to K-6.

For the years 1964-65, through 1971-72, the number of

seventh and eighth grade students retained at these six

elementary schools is as follows :’

5. The seventh elementary school, Ashland Park, had a predom-

inantly white enrollment but was located closer to junior

highs other than Technical or Mann. It was converted to

K-6 in 1965-66.

6. In early 1969, officials of the School District proposed re-

moving the seventh and eighth grades from Yates and as-

signing these students to Technical Junior High, which was

approximately five blocks away. In 1968-69 Yates enrolled 54

seventh and eighth grade students and its total enrollment

was 317 white and 7 black. while the enrollment at Technical

Junior High was 25 white and 616 black.

Parents of Yates students attended a meeting of the

Board of Education in the Spring of 1969 and expressed op

position to having their children attend junior high in a

building that housed a senior high. The Board of Education

permitted a one-year delay, and the Yates seventh and eighth

grades were assigned to Technical Junior High beginning in

1970-71.

7. The racial composition of these seventh and eighth grades

is unknown. although presumably it mirrors that of the school

as a whole. During these years, each of the elementary

schools was predominantly white in total enrollment.

SCHOOL

Mason

Jackson

Walnut Hil)

Yates

Pershing

Sherman

1964-65 1965-66 1966-67 1967-68 1968-69 1969-70 1970-7) 1971-72

90 Converted to K-6

63 85 64 66 63 66 62 70

104 113 WwW Converted to K-6

58 70 70 52 54 34 Converted to K-6

110 103 87 70 55 49 52 50

125 114 128 19 116 WwW 119 123

Of these six schools, only Sherman and Pershing at any

time had enrollments in excess of their building capacity,

and never to a serious degree. On the other hand, Tech-

nical Junior High and Mann consistently had enrollments

somewhat below published capacity :

SCHOOL

Technica)

Junior High

1964-65 1965-66 1966-67 1967-68 1968-69 1969-70 1970-7) 1971-72

Bara ere ee es Te S.

653 795 630 795 667 795 637 795 64) 795 641 795 598 795 606 795

1000 1380 10511380 986 1380 880 1380 819 G80 827 1380 832 1380 882 1307

With respect to the four elementary schools closer to

Technical Junior High the only zone from which transpor-

tation to Technical would be difficult is Mason, where,

due to the commercial and highway development separat-

ing these areas, transportation would have posed a serious

problem.

With respect to the two elementary schools closer to

Mann, the situation is somewhat different. The Pershing

and Sherman zones are relatively isolated from the rest

of the School District in the northeastern corner thereof,

in areas sparsely populated and containing increasing

commercial and industrial development. The driving dis-

tances between the Sherman and Mann buildings is 1.7

miles, but the distance is greater for most of the Sher.

man zone. The driving distance hetween the Pershing

and Mann buildings is 3.1 miles.

The isolation of the Pershing and Sherman zones was

recognized by the School District in the 1955 Study of

School Enrollment and Plant Facilities, in which it was

recommended that a separate, smaller-than-usual junior

high facility be built at Sherman School to accommodate

both Sherman seventh and eighth grade students and

those from the expected annexation of East Omaha

(served by Pershing School). This annexation did occur

and the smaller junior high recommendation was made

again in 1962, but an expected population increase in the

area never materialized and this junior high was never

built. Pershing and Sherman are currently and always

have been K-8 schools, although for two years, 1960-61

and 1961-62, students from both schools had the option of

attending Mann (predominantly black), McMillan (pre-

dominantly white), or staying at their previous elemen-

tary school. The evidence does not permit a conclusion

as to how the options were exercised, if at all.

(3) OPTIONAL ATTENDANCE ZONES

The plaintiff and intervenors are also concerned with

the School District’s practice of creating optional attend-

ance zones for seventh and eighth grade students from

certain elementary schools near Technical Junior High.

The schools with these options were Mason, Saunders and

Walnut Hill. The following are relevant statistics for

the time period involved:

Driving Distance Racial Enrollment

to Optional in Year

School Junior Highs Option Created

White Black

Saunders 1.0 miles to Technical 1964-65

2.2 miles to Norris

2.5 miles to Lewis & Clark 178 0

Mason 1.9 miles to Technical 1965-66

2.7 miles to Norris

2.3 miles to Bancroft 447 12

Walnut Hill 1.3 miles to Technical 1967-68

3.3 miles to Norris

2.5 miles to Lewis & Clark 432 a

Technical Junior High

White Black Total Stated Capacity

1964-65 254 399 653 795

1965-66 223 407 630 795

1966-67 160 507 667 795

1967-68 69 568 637 795

Bancroft, Lewis and Clark and Norris Junior High

Schools were all predominantly white during this time

period.

The above information gives the statistical background

concerning the optional attendance zones; information

concerning the actual exercise of these options is avail-

able for the 1971-72 school year only and is as follows:

Children residing in the Walnut Hill zone:

Racial Composition

White Black

To Technical Junior High— 3 48 551

To Lewis and Clark —90 1,205 21

To Norris —5 1,407 10

Children residing in the Saunders zone:

To Technical Junior High— 1

To Lewis and Clark —21

To Norris —23

Children residing in Mason zone:

To Technical Junior High— 1

To Norris —25

To Bancroft Not Available 473 2

At the end of the 1971-72 school year, Technical Junior

High was closed. The Saunders and Walnut Hill options

were continued to Lewis and Clark and Norris, while the

seventh and eighth grade students from Mason were as-

signed either to Bancroft or Norris, depending upon

their street address.

In addition to these three optional attendance zones,

there have been nine other elementary schools throughout

the School District which either currently or in the past

have had options concerning junior high attendance. With

regard to eight of these nine schools, Connestoga, Harri-

son, Irvington, Pershing, Ponca, Rose Hill, Sherman

and Washington, the evidence indicates that exercise of

these options to the various junior high schools involved

had no significant segregative or integrative effect. The

ninth school was predominantly black (Druid Hill, 1966-

67: 25 white, 568 black). In 1967-68 seventh and eighth

graders in a portion of the Druid Hill zone were given

options to attend predominantly black Mann (1966-67; 2°

white and 963 black) or predominantly white MeMillan

(1966-67 : 1303 white and 119 black). Mann was approxi-

mately one mile aud MeMillan approximately two and «

half miles from the center of the optional zone. No pre-

cise records are in evidence concerning the exercise «f

this option, but for 1967-68, the total enrollment at Me.

Millan showed an increase of 42 black students and a de-

crease of 44 white students, while at Mann there was a

decrease of 105 black students and 1 white student. Thus,

the option, for the year 1967-68, had some integrative

effect. This option continues to the present.

CONCLUSIONS

The foregoing constitute the Court’s findings of fact

concerning the junior high system in the Omaha School

District. From these findings the Court is able to draw

certain conclusions. The first such conclusion is that there

was no segregative intent on the part of the defendant

School District in the establishment of the junior high

system or in its assignment of feeder schools for the

various junior highs. The evidence shows that the Dis-

trict’s proposals for the various junior highs were con-

sistently made on a geographical basis and that the race

of the students expected to attend these schools was never

a consideration. Of the junior highs which were ulti-

mately built and operated, there were at times two—

Technical and Mann—and there is currently one—Mann—

which have enrolled a predominantly black student body.

However, there appears in the record no evidence to indi-

cate desire or design by the School District that this

should oceur. In both the 1951 and 1955 Studies, the

combined enrollments of the feeder schools for the junior

highs which ultimately became Technical and Mann were,

as of those years, predominantly white. The only pro-

posed junior high with feeder schools enrolling even a

combined majority of black students was the 1955 Near

North Side junior high, the erection of which was recog-

nized then to be improbable, and which was, in fact, never

built.

The evidence shows a constant increase in the concen-

tration of black school age children in the areas to the

north and west of what was once known as the Near

North Side, and this increase is reflected in the racial en-

rollment of the various feeder schools, and consequeutly

in the junior highs.

With respect to the conversion of K-8 schools to the

K-6 system, the Court finds that this policy in itself was

racially neutral and was not indicative of any segregative

intent. The policy was not totally applied to all schools

at the same time and certain exceptions were made which

deviated from the conventional neighborhood school basis

and which plaintiff and intervenors argue demonstrate a

segregative intent. However, as stated at the outset, the

burden of proof here is upon plaintiff and intervenors to

show an intentionally segregative policy practiced in a

meaningful or significant portion of the school system.

Only then does it hecome incumbent upon the defendants

to prove that their actions or non-actions were not moti-

vated by segregative intent. The Court is not of the

opinion that plaintiff and intervenors have met this

burden in connection with this particular policy. First of

all, the record shows that Mason converted to K-6 br

1965-66, Walnut Hill by 1967-68, and Yates by 1970-71.

The record is unclear and undeveloped as to the status

of Jackson at this time, although there is some evidence

to indicate that the K-8 policy is still in existence at that

school. The record further shows that Yates was per-

mitted a one-year delay from 1969-70 to 1970-71 for con-

version because of a request from the parents of the

Yates students based upon the opposition to the children

attending a junior high (Technical) which was housed

with the senior high. There is some evidence as to the

personal opinions of a school board member and a schou!

board employee as to the reason for the parents’ request

having to do with racial factors, but the Court considers

this testimony to have little, if amy, probative value and

it is not persuasive of the plaintiff and intervenors’ con-

tentions. Furthermore, if this particular policy was

creating or continuing a racial imbalance, it was remedied

by 1970-71 which would have heavily discounted an

‘intentionally segregative policy practiced in a mean-

ingful or significant portion of the school system.” Also,

heavily discounting such segregative intent is the fact

that a portion of an adjacent zone (Webster) was trans-

ferred to the Yates zone in 1969 which thereby increased

the black enrollment at Yates from two per cent to thir-

teen per cent.

Furthermore, the Court concludes that the geographic

isolation of the Sherman and Pershing schools was and is

a sufficient reason for the School District to permit the

seventh and eighth grade students to remain in those

buildings and that this decision is consistent with the

District’s neighborhood school policy. The Court further

concludes that the necessary segregative intent has not

been demonstrated by the plaintiff and intervenors with

reference to the seventh and eighth grades at Jackson,

Mason, Walnut Hill and Yates, and that the reasons

advanced for those respective retentions of K-8 policy

until 1970-71 were not motivated by or indicative of a

segregative intent on the part of the defendants practiced

in a meaningful or significant portion of the school sys-

tem.

Considering next the optional attendance zones, the

Court finds that the maintenance of such a system pre-

sented a necessary and reasonable deviation from the

neighborhood school policy. Historically, and most fre-

quently during the 1960’s, optional zones were frequently

used when the junior high schools came into being and

were in existence throughout the District. The optional

zone from Walnut Hill in 1967-68 was created when

enrollments at Monroe Junior High made it impossible to

assign Walnut Hill as a feeder school to that particular

junior high school, which would have been the most

desirable arrangement inasmuch as Walnut Hill fell with-

in the Benson High attendance area, Benson High and

Monroe occupying the same site. In the same year that

the Walnut Hill optional zone was created, seventh and

eighth grade students in a portion of the Druid Hill

zone, which was predominantly black, were given the

option of attending Mann Junior High (predominantly

black) or McMillan Junior High (predominantly white),

even though McMillan was approximately one and a half

miles farther away from this area than Mann. Insofar

as the Mason optional zone is concerned, this was created

in 1965 when Bancroft Junior High first opened in order

to give the seventh and eighth graders from that area

an alternative in transversing a commercial area and

extensive interstate highway construction in order to

reach Technical Junior High. Saunders Elementary

School had never been proposed as a feeder school for

Technical Junior High, either in 1951 or 1955. In these

years there was a proposal that a portion or all of

Saunders be assigned to the Dundee or Western Avenue

Junior High respectively. The Dundee and Western

Avenue Junior Highs ultimately merged in what was to

be known as Lewis and Clark which, because of the

availability of open land space, was located at the west-

ernmost part of the zone which it was to serve. Saunders,

therefore, was made an optional zone to Lewis and Clark

or Technical or Norris in 1964-65 when the record shows

that enrollments at Technical Junior High were up and

enrollments at Lewis and Clark were down. From this

evidence, the Court concludes that in these three in

stances, the Schoo! District deviated from the neighbor-

hood school policy for sound, administrative reasons, and

its judgment was not hased upon racial reasons or a

segregative intent. In this connection, it should further

be noted that a significant measure of racial balance was

achieved so far as Druid Hill was concerned because of

this optional zone policy which, again, would discount

overall an intentionally segregative policy. It is here

noteworthy to point out the observation made by the

Court in the case of Higyins v. Board of Education.

Grand Rapids, Michigan, No. CA 6386 (W.D. Mich.,

Filed July 18, 1973), Slip Opinion at 34-35, which is

applicable to the instant case:

To anyone endeavoring with objectivity to consider

the contentions of the parties, the most singular

impression is of the unending dilemmas which face

the school officials of a large urban system. It is

altogether too easy for one, desiring in advance a

particular result, to assign to any Board action that

motive and that effect which most likely will support

the personal predilection. Particularly difficult is

the necessary task of examining Board action in the

light of the circumstances as they existed at a given

time, of alternatives available, of knowledge of what

the future would or would not bring to the system,

and of viewing each action or inaction in the light of

its impact on the whole.

IV. HIGH SCHOOLS

At the present time there are eight senior high schools

in the Omaha Public School System. Three of these

(Bryan, Burke and Northwest) have been opened within

the past sever. years and are located in the far south,

western and northwestern portions of the School District,

respectively. They were built in predominantly white

residential areas, and have always had predominantly

white enrollments. The remaining five schools, Benson,

Central, North, South and Technical, have all been in

operation for at least forty years. Three of these five

have specified attendance zones—Benson in the mid-

northwestern portion of the District; North in the north-

eastern portion of the District; and South in the south-

eastern portion of the District. Central and Technical

share the same attendance zone in approximately the

middle and eastern portion of the District. Technical is

north and west of Central and is located approximately

at the southern boundary of the Near North Side area

which area comprises the largest precentage of black

population in the City. In addition to serving this mutual

zone, Central and Technical are and have always been

open enrollment schools, which means that a student from

any attendance zone may choose to attend Central or

Technical rather than the high school serving his or

her zone. These are the only open enrollment schools.’

9. At one time South was also an open enrollment school, but

the evidence does not show that this was ever a significant

factor in determining racial enrollment at any Omaha High

Schools.

1936-37

1941-42

1946-47

1951-52

1956-57

1961-62

1966-67

1971-72

1973-74

From 1936 to 1945 Technical High had the largest stu-

dent body in the School District, enrolling over 3,000

students annually, with a peak of 3,771 in 1940-41. Tech-

nical consistently enrolled the largest number of black

students during this time period, with a high of 320, or

approximately nine per cent of the student body, in

1941-42. |

Around 1945, Technical began experiencing a steady

decline in total enrollment to the point that for 1973-74

Technical enrolled only 710 students. At the same time

there has been a consistent increase in the percentage of

black students at Technical, and in 1973-74, blacks com-

prised 96 per cent of the student body.

This development has not been paralleled at any other

high school. Figures introduced in evidence disclose the

following concerning the five schools which have served

the School District throughout this time:

Per Cent

BENSON == CENTRAL, «= WORTH = SOUTH TECHNICAL

Tota) tay Tota} oo Total — Total —— Total Black

1,507 o' 203 8 2,001 2 2,803 2 2,96 6

1.162 O 2,93 49 4,740 1 2,915 2 3,35 #89

1,334 0 1,699 12 1,595 1 2,373 2 2,418 10

1.18 OO 1,455 1 1,531 1 2,183 3 1,879 18

1,985 0 1,758 13 1,794 3 2,619 2 1,537 44

2,095 1 2,008 18 2,165 18 2,521 2 1,453.69

1,89 8 8=67 2,078 262,178 Ss 26s 609s—ikts«éi RBC

1,637 14 = 2,078 32si«i890 36st 3 710 9%

10. Percentages are rounded to the nearest whole number.

—_—

in the 1950’s, published reports of the School District

listed Technical as thirty per cent below capacity, Central

as filled to capacity, and the three other high schools as

overcrowded. In the late 1950’s and early 1960’s addi-

tions at Benson, North and South relieved the over-

crowding somewhat at those schools. However, South

High experienced severe overcrowding from 1961-62 to

1964-65 and Benson was seriously overcrowded from

1962-63 through 1971-72. Yet, from 1959-60 through 1971-

72, Technical, even though it housed Technical Junior

High in a wing of the total facility, had excess capacity of

from 680 to 1,500 students. This situation as it developed

et Technical Senior High was known to the administration

of the Omaha Public Schools. Mr. Carl Palmquist, the

principal at Technical during the 1950’s and 1960’s, re-

peatedly notified the Superintendent of Schools and his

staff orally and in writing that Technical was in danger

of becoming an ail-black school.

It is clear that the success of the open school and

mutual zone policies at Technical, insofar as the reten-

tion of a sufficiently high enrollment is concerned, were

dependent upon the attractiveness of Technical to stu-

dents throuchout the District. It is also clear that in

the last twenty-five years, fewer and fewer white students

have been attracted to Tech. The plaintiff and inter-

venors allege that a substantial contributing cause to this

situation has been the School District’s intentional deter-

ioration of the quality of education offered at Technical.

The Court disagrees and finds that the operation of

Technical does not disclose segregative intent on the part

of the defendants and to the contrary, shows a determina-

tion on the part of defendants to upgrade both the physi-

cal plant and the quality of education at this school.

Furthermore, as far as Tech’s majority black status

is Prntean seme Court reiterates that racial balance is

not required under the Constitution and there can be and

are many instances were one-race schools within a District

are plainly permissible under the law. It is only where

the imbalance is caused by a segregative intent on the

part of the School Board and where the imbalance

thereby reaches the proportion of constitutional violation

that the Court may supplant its judgment and policy for

that of the School District. As stated in Swann v.

Charlotte-Mecklenburg Board of Education, 402 U.S. 1

(1971), at pages 25 and 16:

The record in this case reveals the familiar phen-

omenon that in metropolitan areas minority groups

are often found concentrated in one part of the city.

In some circumstances certain schools may remain all

or largely of one race until new schools can be pro-

vided or neighborhood patterns change. Schools all

or predominantly of one race in a district of mixed

population will require close scrutiny to determine

that school assignments are not part of state-

enforced segregation.

In light of the above, it should be clear that the

existence of some small number of one-race or

virtually one-race schools within a district is not in

and of itself the mark of a system that still practices

segregation by law.

School authorities are traditionally charged with

broad power to formulate and implement educational

policy and might well conclude, for example, that in

order to prepare students to live in a pluralistic

society each school should have a prescribed ratio of

Negro to white students reflecting the proportion of

the district as a whole. To do this as an educational

policy is within the broad discretionary powers of

school authorities; absent a finding of a constitu-

tional violation, however, that would not be within

the authority of a federal court.

See also, Spencer v. Kugler, 326 F.Supp. 1235 (D.N. J.

a aff'd. 404 U.S. 1027 (1972), where the Court

sta :

‘“‘The schools . . . are racially imbalanced by

reason of N.J.S. 18A:8-1 to 42 and N.J.S 18A:38-1

to 24, which sets school district boundaries thereby

rendering racial balance mathematically impossible in

many districts, thus providing unequal educational

opportunities. The State has taken no steps to

achieve racial balance by reason of the mathematical

composition of the geographical area which comprises

the school district, has not attempted to redraw school

district lines to achieve racial balance, has not pro-

vided funds for compensatory education to overcome

adverse educational effects of racial imbalance.’’ Id.

at 1237.

Plaintiff’s substantive claim rests wholly on the

assertion that there is an affirmative constitutional

duty to achieve racial balance among the several dis-

tricts of a state system of public schools; and that

a failure to do so is in violation of Fourteenth

Amendment rights. 7d. at 1238.

The Court in Swann draws a critical distinction

between those states which have a history of dual

school systems and a separation of the races which

has continued through ‘‘freedom-of-choice’’ and

‘geographical zoning’’ plans which create the illu-

sion of conforming to law, and those wherein so-

called ‘‘de-facto’’ segregation results from housing

patterns and conventional drawing of school district

zones. Id. at 1242.

A continuing trend toward racial imbalance caused

by housing patterns within the various schoo] districts

is not susceptible to federal judicial intervention.

The New Jersey Legislature has by intent maintained

a unitary system of public education, albeit that

system has degenerated to extreme racial imbalance

in some school districts; nevertheless, the statutes in

question as they are presently constituted are con-

stitutional. Jd. at 1243.

The evidence discloses that from at least the late 1930’s

through the 1950’s, Technical offered a comprehensive

curriculum, with courses in both college preparatory and

vocational areas. Tech had the most advanced vocational

program in the School District, and a substantial portion

of the students attending Technical did so because of this

program. Extensive vocational instruction was also

offered at South.

In the early 1960's, the interest of high school students

in vocational education diminished District-wide, and

greater importance was placed on colleze preparation.

Also, in the 1960’s officials at Tech became aware that

black students (Technical turned majority black in 1963-

64) were having difficulty finding employment in certain

skilled areas. As a result of these two factors, Tech

dropped its instruction in certain vocational areas, e. g.,

electronics and instrumentation—and added programs in

other vocational areas, such as auto mechanics and culin-

ary arts, where job accessibility for blacks was greater.

The interest of high school students in the vocational

programs at Technical has continued to decline to the

point that many areas of the school and much equipment

are not currently in use. The Court does not find, how-

ever, that the potential for an excellent vocational educa-

tional program at Technical has in any way diminished.

The equipment and facilities are present, are of high

quality, and are equal to and in some areas superior to,

those of any high school in the District. In the 1960’s,

the curriculum at Tech changed in other ways as well.

Certain of the foreign languages (e.g., French and

German) were eliminated because of decreased student

interest (although Spanish and Latin were retained).

Also the orchestra was removed. On the other hand,

programs such as R.O.T.C., guidance and health (for

girls) and an audio-response English program were ini-

tiated.

Also, in the early 1960’s, a program of what is known

as ‘‘special education’’—i.e., classes geared particularly

to students who have not progressed satisfactorily aca

demically or who have learning disabilities—was insti-

tuted at Tech. Tech was the only high school which had

these classes for the first few years, and as many as two

hundred students participated in this program in any one

year. Eventually the other high schools initiated such

classes, although the dates in which they did so are un-

known. The plaintiff and intervenors argue that students

from across the District who needed special education or

who had histories of disciplinary problems in school were

channeled into Tech, and that thus, the ability of the Tech

students as a whole and the attractiveness as a high

school were further reduced. There is not sufficient evi-

dence to support this claim. To the contrary, the evidence

discloses that the special education program at Technical

was designed to serve the students already enrolled at

that school, not students from other schools. Concerning

disciplinary problem students, there is evidence that Tech

received such students from other schools and transferred

such students out of its own facility to other schools, and

there is no evidence of the relative numbers of these stu-

dents.

Prior to the start of the 1971-72 school year, Tech ex-

perienced what several witnesses have described as ‘‘dis-

ruptions’’ of an unspecified character and number. There

is considerable evidence that many students at Technical

at this time were dissatisfied with the content and struc-

ture of courses offered, the manner of instruction, the

treatment of Technical by the central administration of

the School District, and the physical plant at Technical.

The state of the record does not permit findings as to the

factual basis for this dissatisfaction. However, in re-

sponse to the students’ action, and in cooperation with

various citizens’ groups and an outside consulting firm,

the School District made several changes at Tech for the

school year 1971-72. The building itself was repaired

and renovated; some faculty assignments were changed ;

and the curriculum was altered substantially. The evi-

dence shows that the academic program at Tech from

1971-72 to the present has been basically individualized.

The traditional time schedule of quarters, semesters, etc.,

has been discarded so that students progress at their own

pace. Students may now take as much or as little of a

course as they are able to handle at any one time, and the

courses can be structured to fit the particular student’s

needs. Also Tech has considerable flexibility in its course

offerings. Varied faculty backgrounds permit the devis-

ing and implementing of courses not formerly offered, as

students’ needs and interests require. There has also

been an active student recruitment program at Technical,

both for full and part-time students.

V. SPECIAL TRANSFER POLICY

A. Introduction

One of the methods by which a student may attend a

school other than that in his zone of residence is by ob-

taining approval of the School District for a special trans-

fer. The origin of the special transfer policy was ex-

plained in the Memorandum Opinion following the pre-

liminary injunction hearing, 367 F. Supp. at 191. Initi-

ated in 1964, the policy has five formal prerequisites for

the granting of a special transfer:

(1) The achievement level of the pupil requesting a

transfer must equal the average level of achievement of

the pupils in the grade and schoo! for which the transfer

is being requested.

(2) The school to which the pupil is transferred can-

not be an overcrowded school. Capacities of schools shall

be determined by the staff and the Board of Education.

(3) The transportation of pupils is totally the re-

sponsibility of parents.

(4) The request must be a formal written request on

an individual basis.

(5) Permission for a transfer shall not be granted

until enrollments are ascertained.

In addition, in determining whether a transfer should

be granted, the Schoo] District considers inedical reasons,

family hardships, and problem or learning situations

where the School District feels a student may have a

better chance of success in the transferee school.

The plaintiff and intervenors allege that the transfer

policy has been operated in such a manner as to permit

white students to avoid attendance at neighborhood

schools which have substantial numbers of black students,

and that this is evidence of the School District’s segre-

gative intent. The School District denies that transfers

have ever been granted for racial considerations. Plain-

tiff and intervenors also assert that the transfer policy

discriminates against black students because of the trans-

portation and equal achievement requirements, but there

has been no evidence introduced at trial which would

support such allegations.

The transfer application form used by the School Dis-

trict has no space for indication of race, although correla-

tion with other student records could give the School Dis-

trict this information. The application form does have

a space for indication of the reason for transfer. A num-

ber of transfer applications have been introduced in evi-

dence on which racial reasons were voluntarily offered by

the parents. Some of these requests were granted and

some were denied. Other applications have been intro-

duced which list non-racial reasons, and again, some of

these were granted and some denied. The Court finds

the limited number of individual requests involved to be

of little probative value in determining whether the policy

as a whole was or was not administered with segregative

intent:

Of greater probative value are the extensive analyses

of the transfer policy’s operation prepared by both the

plaintiff and the defendants for the school years 1970-71

and 1971-72. Although both analyses are based upon

essentially the same underlying data, the approaches util-

ized and the portions of the data emphasized by each

party are different.

B. The government’s analyses

The plaintiff’s analyses classify each transfer approval

as segregative, desegregative or of no effect. A transfer

is termed segregative if it permits a student to change to

a school in which students of his race are in a percentage

at least ten per cent greater than that in the school in

his zone of residence. If students in his race are in a

percentage at least ten per cent less than that in the

school in his zone of residence, the transfer is desegrega-

tive. If the difference in percentage is within ten per

cent, either more or less, the approval has no effect. These

analyses and additional evidence of the government are

directed toward demonstrating segregative intent through

three avenues:

(1) The number of segregatory transfers in the School

District as a whole;

(2) The number of transfers by white students out of

predominantly black schools;

(3) The number of transfers by white students into

overcrowded majority or predominantly white schools.

(1) The School District as a whole

Graphs in the government's analyses list transfer ap-

provals for the years 1970-71 and 1971-72 as follows:

1970-71

Segre- Desegre-

Total gative gative No Effect

High Schools 1,024 413 203 408

Junior Highs 758 220 198 340

Elementary 1,770 608 202 960

TOTAL 3,552 1,241 603 1,708

1971-72

Segre- Desegre-

Total gative gative No Effect

High Schools 1,015 453 178 384

Junior Highs 830 325 174 331

Elementary 2,041 733 264 1,044

TOTAL 3,886 1,511 616 1,759

These totals do not include denials of transfer requests,

although this information is available elsewhere in the

plaintiff’s analyses.''

When denials are included, the totals are:

1970-71

Segre- Desegre-

Total gative gative No Effect

High Schools 1,138 423 274 441

Junior Highs 925 278 219 428

Elementary 1,952 615 285 1,052

TOTAL 4,015 1,316 778 41,921

(32.8%) (19.4%) (47.8%)

1971-72

Segre- Desegre-

Total gative gative No Effect

High Schools 1,472 484 369. 619

Junior Highs 1,102 411 253 438

Elementary 2,177 750 338 1,089

TOTAL 4,751 164 960 2146

(34.6%) (20.2%) (45.2%)

(2) Transfers out of predominantly black schools

In its transfer policy analyses, the government includes

charts showing the number and race of transfers out of

redominantly black schools or zones and the schools to

cf these transfers were made. Correlation of these

charts with other data in evidence permits the following

findings:

11. Denials are classified in this way: if the approval would

1970-71

1971-72

(a) Elementary schools—The predominantly black ele-

mentary schools have always been loented in a group in

the northeastern portion of the Sehool Distriet. In 1970-

71 there were 348 white transfers out of these predomin-

antly black elementary schools and the vast majority of

these were to nearby majority or predominantly white

schools. There were 274 black transfers out of the pre-

dominant!y black schools and the vast majority of these

were to other predominantly black schools. The total

number of elementary transfers for 1970-71 throughout

the District was 1,770.

In 1971-72 there were 361 white transfers out of the

predominantly black elementary schools and again they

were principally to nearhy majority or predominantly

white schools. There were 274 black transfers out of

predominantly black schools and they were principally to

other predominantly black schools. The total of the ele-

mentary transfers in the District was 2,041.

(b) Junior highs—In 1970-71 and 1971-72 there were

two predominantly black junior highs—Technical (1970-71

enrollment after transfers: 51 white, 540 black; 1971-72:

48 white, 551 black) and Mann (1970-71 enrollment af.-

ter transfers: 7 white, 825 bleck; 1971-72: 16 white, 863

black). Transfers for these years were as follows:

Technical From Mann

— to Majority Zone to ~~ fp meg

Transfers or Predomin- Transfers Majority or ota eae

From Tech antly White From Mann Predominantly —— g

Zone Schools Zone White Schools Transfers

White Black White Black White Black White Black White Black

68 16 68 16 25 144 2) 68 497 261

(ec) Senior highs—The only high school which has ever

been predominantly (or even majority) black is Technical.

As mentioned earlier, Technical shares an attendance

zone with Central. In 1970-71 there were 319 white trans-

fers from the Central-Technical zone’? with 250 of these

to South High. There were 158 black transfers out of

the Technical-Central zone, chiefly to Central, North and

Tech."

In 1971-72, there were 410 white transfers out of the

Tech/Central zone, with 315 of these to South. There

were 121 black transfers out of this zone, with the major-

ity to North.

C. The defendants’ analyses

As mentioned previously, the transfer policy analyses

offered by the School District differ from those of the

government in both the approach used and the data em-

phasized. The material presented in the defendants’

analyses can be grouped into three categories:

(1) The effect of transfers contributing to racial im-

balance on the School District as a whole.

(2) The effect of the transfer policy on eighty per

cent black schools and on majority white schools.

(3) The treatment of transfer requests of both races.

(1) The effect on the School District as a whole

The defendant School District classifies all transfers

granted for the years 1970-71 and 1971-72 as either con-

tributory or non-contributory to racial imbalance in the

schools. All schools are designated by racial enrollment

as predominantly white (greater than sixty-five per cent

white), majority white (greater than fifty per cent white,

and hence minority black), majority black (greater than

fifty per cent black and hence minority white), or pre-

dominantly black (greater than sixty-five per cent black).

All transfers by a student to a school in which his race is

in a more concentrated designation (e. g., a white student

transferring from a majority white school to a predomin-

antly white school) are termed contributory. All trans-

fers by a student to a school in which his race is in a con-

centration of the same designation or in a less concen-

trated designation (e.g., a black student transferring

from a majority black school to another majority black

school, or to a majority white school) are termed noncon-

tributory. Denials of requested transfers are not in-

cluded by the defendants in their analyses. The totals

for the two years in question are:

1970-71 1971-72

Con- Non-Con- Con- Non-Con-

tributory tributory tributory tributory

White 494 1,824 647 2,146

Black 108 752 116 782

TOTAL 602 2,576 763 2,928

(18.94%) (81.05%)'* (20.67%) (79.32%)

14. Although the underlying data for both the government’s and

the defendant’s analyses are essentially the same, compari-

son of the above figures with those reached by the govern-

ment for transfer approvals shows that the defendants’ totals

are noticeably smaller. The discrepancy is no doubt due in

large measure to the School District's omission from its

analyses of any transfers in which the student’s pre-transfer

school or zone of residence was listed on the request as a

combination zone (e. g., Central-Tech, or an optional zone,

e.g., Norris-Lewis and Clark, Lewis and Clark-Norris-Tech

Junior High, Hale-Morton). See footnote 12, supra.

(2) The effect on eighty per cent black schools and

majority white schools

A second phase of the School District’s analyses focuses

on the net effect of the transfer policy on the black en-

rollments at certain schools. The first group of schools

lists those in which the total enrollment was eighty per

cent or more black:

1970-71 1971-72

Blacks Blacks Net Blacks Blacks Net

Schools Before After Result Before After Result

Tech Sr. 991 1013 22 %%6 %1 —15

Mann Jr. 992 825 —167 980 863 —117

Tech. Jr. 483 540 57 £525 # 551 26

Conestoga 326 341 1 389 400 11

Druid Hill 410 424 14 385 397 12

Fairfax 64 64 0 62 63 1

Franklin 937 9066 —31 90 866 —39

Kellom 643 659 16 #49617 ~ 621 4

Lake 279 279 0 20 #257 7

Long 188 184 —4 -s .. --

Lothrop 937 922 —15 89 836 —13

Saratoga 701 692 -—9 639 639 0

TOTAL 7,649 7,582 —67 7,234 7,106 —128

Per cent of all black students in School District:

64.91% 64.33% —.58% 59.93% 58.86% —1.07%

15. Long was closed following the 1970-71 school year.

The second group of schools includes those schools in

which the total enrollment was fifty per cent or- more

white. Totals for the eighty-three such schools in 1970-71

and eighty-six in 1971-72 are as follows:

Blacks Before Blacks After Net Result

1970-71 2,947 (25.0%)'® 3,145 (26.7%) +198 (1.7%)

1971-72 3,675 (304%) 3,918 (32.5%) +243 (2.0%)

(3) Treatment of all transfer requests

The third phase of the evidence offered by the defend-

ants is a comparison of the treatment of black and white

transfer requests. This evidence shows the following:

1970-71 1971-72

Per Per

Number Cent Number Cent

Total Requests

by Whites 3,008 3,680

Approvals 2,638 87" 2,978 80

Denials 370 12 702 19

Total Requests

by Blacks 1,033 1,138

Approvals 910 88 942 82

Denials 123 11 196 17

The School District also points out that under the plain-

tiff’s analyses for 1970-71, 88.3 per cent of all white

transfer requests were granted, along with 88.9 per cent

of all black requests. For 1971-72, 81.3 per cent of all

white transfer requests were granted, along with 83.1 per

cent of all black transfer requests.

16. Percentage of all black students in the District.

17. Percentages are not carried out to decimal places.

D. Conclusion

Based upon all the exhibits and testimony received in

this case, the Court reaches the following conclusions con-

cerning the defendants’ special transfer policy:

(1) The operation of a special transfer policy is not

per se evidence of segregative intent. There are many —

legitimate ends which such a policy may serve. Kemp v.

Beasley, 352 F. 2d 14 (8th Cir. 1965). It is, however, a

deviation from the announced neighborhood school policy

and thereby is subject to close scrutiny.

(2) The race of the applicants has not been a factor

in the School District’s determination to grant or deny

special transfers. Requests by black students have been

granted with at least the same frequency as those of white

students.

(3) The segregative effect of the transfer policy on

the School District as a whole is slight. Under the plain-

tiff’s analyses, 1,316 transfer actions in 1970-71 and 1,645

in 1971-72 were segregative. Yet there were over 63,000

students in the Omaha Public Schools for those years, and

the segregative transfer actions, therefore, dealt with ap-

proximately 2.1 per cent and 2.6 per cent of the total

student enrollments, respectively. If the numbers of ap

proved transfers contributory to racial imbalance under

the defendants’ analyses are used, the percentages are

even smaller.

(4) The effect of the transfer policy on the predom-

inantly black schools is of greater consequence. The de-

fendants’ exhibits show that the black enrollments at

eighty per cent black schools (Why the defendants have

chosen eighty per cent is unclear; the figure sixty-five

per cent, representing ‘‘predominantly’’ black schools has

been used throughout the litigation by all parties.) has

decreased slightly after implementation of the transfer

policy. It is equally clear that the white enrollments at

these schools and all predominantly black schools have

decreased as a result of the policy.

The bare facts remain, however, that the special trans-

fers under the policy in question were not granted upon

any basis of racial conditions or considerations, and there

is no question but what these transfers have been granted

with the same frequency to black students as to white

students. Further, the achievement level requirement ap-

plies equally to both black students and white students.

Thus, the open transfer policy in question clearly meets

constitutional tests heretofore handed down repeatedly by

other courts. There is no prououncement on the precise

question by the United States Supreme Court. but approv-

al here would clearly be indicated by that Court in its

opinion in Goss v. Board of Education of City of Knoxr-

ville, 373 U.S. 683 (1963) wherein Justice Clark writing.

for a unanimous Court stated at page 688:

This is not to say that appropriate transfer pro-

visions, upon the parents’ request, consistent with

sound school administration and not based upon any

state-imposed racial conditions, would fall. Likewise,

we would have a different case here if the transfer

provisions were unrestricted, allowing transfers to

or from any school regardless of the race of the ma-

jority thervin.

In Bradley v. School Board of City of Richmond, Vir-

ginua, 345 F. 2d 310 (4th Cir. 1965), vacated on other

grounds, 382 U. S. 103 (1965). a case involving a transfer

policy substantially similar to the transfer policy in ques-

tion, the Court stated, at page 316, in approving the

transfer system:

It has been held again and again, however, that the

Fourteenth Amendment prohibition is not against

segregation as such. The proscription is against dis-

crimination. Everyone of every race has a right to

be free of discrimination by the state by reason of

his race. There is nothing in the Constitution which

prevents his voluntary association with others of his

race or which would strike down any state law which

permits such association. The present suggestion

that a Negro’s right to be free from discrimination

requires that the state deprive him of his volition is

incongruous.

The phrase from the second Brown decision to

which the plaintiffs refer lends no support to their

contention. The first paragraph of the opinion, in

which the phrase appears, clearly and precisely ex-

presses the proscription against ‘‘discrimination.’’

There is no hint of a suggestion of a constitutional

requirement that a state must forbid voluntary asso-

ciations or limit an individual’s freedom of choice ex-

cept to the extent that each individual’s freedom of

choice may be affected by the equal right of others.

A state or a school district offends no constitutional

requirement when it grants to all students uniformly

an unrestricted freedom of choice as to schools at-

tended, so that each pupil, in effect, assigns himself

to the school he wishes to attend.

This and other courts have repeatedly referred to

the legality and propriety of a system of free trans-

fers.

We first did so in Dillard v. School Board of City

of Charlottesville, 4th Cir., 308 F. 2d 920, 923-924.

In an opinion previously prepared by Senior Judge

Soper, subsequently adopted per curiam as the opin-

ion of the en banc court, there was approving refer-

ence to systems of unrestricted rights of transfer,

which were said to have been conspicuously success-

ful in Baltimore and in Louisville. Subsequently, in

Jeffers v. Whitley, 4th Cir., 309 F. 2d 621, while con-

demning a compulsive system sought to be justified

on the basis of assertions of volition of the pupils,

we indicated en bane our approval of a2 truly volun-

tary system under which at reasonable intervals reas-

onable alternatives were available to all pupils, so

that those who wished to do so might attend a school

with members of the other race. Finally, when this

ease was before us earlier, this Court, anticipating

the School Board’s implementation of a system of

free assignments and transfers, indicated its appro-

priateness, provided pupils, parents and the public in

general were all informed of it. We there said in

summary: (Footnote omitted.)

‘“e * * As we clearly stated in Jeffers v. Whitley,

309 F. 2d 621, 629 (4th Cir. 1962), the appellants are

not entitled to an order requiring the defendants to

effect a general inter-mixture of the races in the

schools but they are entitled to an order enjoining

the defendants from refusing admission to any school

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