# Appendix — School District of Omaha v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1978
- **Citation:** 434 U.S. 1064

## Text

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.

sy
Ww

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

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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 “

—

——

47
(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

48

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.

in

49

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-

50

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+

ol

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.

33

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

vo

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

56

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.

a

ST

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,

08

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,

60

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:

61

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

62

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

64

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-

65

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

66

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

67

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

68

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
1,352 © 1,882 13 1,778 2 2,477 31,7276
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.

—_—

69

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

70

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 :

il

‘“‘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

to

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

73

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

i4

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

7)

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

76

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

77

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

78

(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-

79

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-

#0

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.

81

(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
Kennedy 698 733 «35 4 8=©6667 0 —s( 662 —5
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.

82

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.

84

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

85

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

%6

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
of any pupil because of the pupil’s rave. The order
should prohibit the defendants’ conditioning the grant
of a requested transfer upon the applicant’s submis-
sion to futile, burdensome or discriminatory admin-
istrative procedures. If there is to be an absolute
abandonment of the dual attendance area and ‘feeder’
system, if initial assignments are to be on a nondis-
criminatory and voluntary basis, and if there is to be
a right of free choice at reasonable intervals there-
after, consistent with proper administrative proced-
ures as may be determined by the defendants with
the approval of the District Court, the pupils, their
parents and the public generally should be so in-
formed.’’ (Emphasis in original.)

See alsv, Taylor v. Board of Education of City School
District of New Rochelle, 294 F. 2d 36 (2d Cir. 1961),
cert, denied, 368 U. S. 940; Bell v. School City of Gary,
Indiana, 324 F. 2d 209 (7th Cir. 1963). cert. denied, 377
U. S. 924 (1964).

In conclusion, the Court finds that the transfer policy
of the defendants is constitutionally permissible, is not
violative of the Constitution and was neither conceived
nor maintained with a segregntive intent.

Vl. HIRING AND ASSIGNMENT OF
BLACK FACULTY AND STAFF

The plaintiff and intervenors allege that the segrega-
tive intent of the defendants is also evident from the

87

School District's policies concerning the hiring and
placement of teaching faculty and staff.

In 1940-41 the first two black teachers were employed
hy the defendant Sehool District and were assigned to
Long Elementary School (predominantly black). The
School District at this time had over 2,000 black students.
By 1973-74 there were 227 black teachers and over 12,000
bleck students in the Omaha Public Schools. From
1940-41 through 1958-59, all of the black teachers em-
ployed by the School District were assigned to elementary
schools and all of these schools were majority black. No
black teachers were assigned to majority white schools
until 1962-63.

The first black teachers were assigned to a junior high
in 1959-60 when Horace Mann Junior High was opened
(1959-60 enrollment: 71 per cent black). Seven of the

‘ twenty-three teachers assigned to Mann were black.

Black teachers were first assigned to a majority white
junior high in 1964-65. Between 1959-60 and 1971-72
(when Technical Junior High was closed) the large ma-
jority of black junior high faculty were assigned to
majority bleck junior highs (i.e., Mann or Tech), al-
though only once did black teachers comprise a majority
of the faculty at either of these schools.

Black faculty members first taught in the senior high
schools in 1963-64, when two were assigned to Technical
Senior High (51 per cent black) and one to North (9
per cent black).

The plaintiff and intervenors have also offered the tes-
timony of six black persons who at some time were em-
ployed in the Omaha Public Schools, but whose treatment
by the defendant School District with respect to hiring
and placement is alleged to have been racially diserimin-
atory. Three of these black people are currently employed
by the School District, one as an assistant superintendent,
one as a junior high principal, and one as a senior high
assistant principal. The other three are no longer with
the school system. The experiences of a white assistant

88

superintendent concerning his hiring and placement by
the School District have been offered by the defendants,
as well as other documentary evidence. From this mater-
ial and that in the preceding paragraphs, the Court makes
the following findings:

(1) Through the early 1960’s a very small number of
black teachers was employed by the School District in
comparison to the number of black persons enrolled as
students. However, there is little evidence of any kind
concerning the availability of black teachers during this
time period, and what little evidence there is would indi-
cate that there were few qualified black teachers to be
hired. The evidence does show that in the 1950’s and
early 1960’s teachers of both races were employed by the
School District even though they did not have the proper
state certification. There is insufficient evidence to show
an intentionally racially discriminatory policy of the
School District with respect to hiring for any time period.

(2) There is evidence which demonstrates that through
the early 1960’s the School District had a policy of plac-
ing black faculty members solely in schools with majority
black enrollments.

(3) There is evidence which demonstrates that through
the early 1960's, the School District refused to place qual-
ified black secondary teachers at the secondary level.
These people were employed but placed at the elementary
level. The number of black teachers so treated was small,
and this same situation was also applicable to some white
teachers for certain years. However, there was no pat-
tern shown for white teachers as there was for black
teachers.

In 1963 the School District began an active recruit-
ment program for minority personnel. Extensive trips
were made by principals and other representatives of the
School District to several states for the purpose of visit-
ing college campuses with substantial numbers of black
students. These representatives explained the Omaha
Public School System to minority colleze students and

89

encouraged applications. The schools visited have been
primarily black colleges and universities in the southern
and western United States. The success of recruitment
has been periodically re-evaluated and new schools have
been added to the list if those previously visited have not
produced a sufficient number of applications. The fol-
lowing chart deals with the hiring of black faculty since
the institution of this recruitment program:

Black Black Black Su-
Teachers Faculty pervisory

at as and
Total Black Majority Per Cent Admin-
Faculty in Black of Total istrative
District Schools Faculty Personnel

1963-64 76 72 4.1 3
1964-65 104 @ 5.2 5
1965-66 105 94 5.1 13
1966-67 123 109 5.8 15
1967-68 136 116 6.1 12
1968-69 160 139 6.9 18
1969-70 164 128 6.8 22
1970-71 186 137 7.5 25
1971-72 186 149 7.0 38
1972-73 214 121 7.7 42
1973-74 227 unavailable 8.0 41

From 1964-65 through 1972-73, 47.5 per cent of all cer-
tificated (i.e., those possessing appropriate Nebraska
teaching certificates) black applicants were offered teach-
ing contracts, and 37 per cent were hired. Some 10.5 per
cent did not accept the contracts. For the same time
period, 25.1 per cent of all white certificated applicants
were hired (no statistics were kept on the percentage of
white applicants offered contracts but who rejected them
during 1964-69). During 1969-70 through 1972-73, 50.6

90

per cent of all certificated black applicants were offered
teaching contracts, and 39.9 per cent were hired. For the
same period, 24 per cent of all certificated white appli-
cants were offered contracts and 19 per cent were hired.

CONCLUSION

The Court concludes that the School District has never
had a policy of discriminating against black teachers in
hiring. The School District did, from approximately 1940
through the early 1960’s, have a policy of placing black
teachers in majority black schools only, and also had a
policy of confining qualified black secondary teachers to
the elementary grades. However, these placement policies
were discarded in approximately 1963 and the Court con-
cludes from all the evidence that substantial progress has
been made in eradicating the effects of these policies. This
has been due in large measure to affirmative action taken
by the School District not only as to placement but also
as to hiring.

There is also some evidence that in evaluating the ef-
fectiveness of teachers preparatory to assigning them to
schools, the School District felt that black teachers would
have greater success than white teachers in working with
black students. Also, there is some evidence that the
School District felt that having successful black role mod-
els was important for black children, and particularly
with regard to male teachers at the elementary level.
Whatever may be the relative merits of this theory, and
the Court intimates no opinion on this point, the Court
finds that the School District held this belief in good
faith, and that this fact is entitled to some weight in any
ultimate conclusion regarding segregative intent on the
part of the Schoo! District."

18. If this theory is in fact erroneous educationally speaking, the
School District was not the only entity in the community in
error. One of the criticisms of the Omaha Ministerial Alli-

(Continued on following page)

91

VII. GENERAL CONSTRUCTION

The plaintiff and intervenors argue that segregative
intent can also be inferred from an examination of the
School District’s new school construction program. ‘This
includes construction of Martin Luther King Middle
School, the motives for construction of which were probed
extensively at the preliminary injunction hearing, 367 F.
Supp. at 183, et seq.

There is no claim that the defendants have operated
rundown or physically inferior buildings for the schools
with substantially black enrollments. The argument,
rather, is that the School District has constructed new
schools knowing that the racial composition at these
schools would be either predominantly black or predom-
inantly white and that, therefore, the School District
acted with segregative intent in building these schools.

The evidence shows that from 1951 through 1973, thirty-
nine new school buildings or additions were erected by the
School District, of which thirty-seven opened with pre-
dominantly white or predominantly black enrollments.
Twenty-one of these buildings or additions were con-
struced from 1964 through 19. J, and all of them opened
predominantly white or black. Certainly School District
officials did know or should be charged with knowing, the
racial compositions at these schools. But to say that th:
School District, therefore, acted with segregative intent
simply does not follow and cannot be stated.

92

Of the thirty-nine new schools opened since 1951, twen-
ty-one were built in predominantly white residential areas
added to the Schoo! District since 1955. There either
were no schools available in these areas or the existing
schools were inadequate to serve the neighborhood. The
remaining eighteen were constructed throughout the area
served by the School District in 1955, in residential areas
substantially white, substantially black and mixed. The
evidence does not disclose any sort of pattern of concen-
trating new schools in black neighborhoods or neighbor-
hoods changing from white to black. In short, there sim-
ply was no pattern of ‘‘containment’’ as charged by the
plaintiff and intervenors. New schools and additions
were placed either as a means of coping with increased
enrollments or as replacements for older, inadequate fa-
cilities.

It is undoubtedly true that many of these new schools
could have opened with substantially less polarized racial
enrollments if the School District had taken affirmative
action in that regard—e. g., by changing attendance bound-
aries, exchanging grades between different schools, or
mass transportation. But absent any segregative pattern,
the Court finds the placement of new schools and addi-
tions to be entirely consistent with the defendants’ neigh-
borhood school policy. Therefore, the failure of the de-
fendants to take such affirmative action is not evidence
of segregative intent.

VIII. HOUSING

There has been considerable evidence introduced by
the intervenors for the purpose of proving the existence
of residential segregation in the City of Omaha over the
past three decades, and of establishing some basis upon
which the defendant School District can be held respon-
sible for this situaticn. This evidence has generally fallen
into two categories:

(1) Involvement of the Omaha Public Schools with
the housing situation;

93

(2) Discriminatory practices attributable to city, state
and federal agencies or governments.

(1) Involvement of the Omaha Public School System

The evidence in this category has been introduced for
the purpose of proving four propositions:

(a) That there is substantial residential segregation in
the City of Omaha, especially in its newer subdivisions.

(b) That this segregation has been caused to a sub-
stantial degree by segregatory practices of real estate
companies—e.g., through restrictive covenants, restricted
home listings, and the exclusion of blacks from employ-
ment in the real estate industry.

(ec) That the defendant School District has consulted
with real estate companies concerning the location of
schools and proposed subdivisions.

(d) That this consultation constituted substantial in-
volvement in the development of segregated subdivisions,
which is evidence of the School District’s general segrega-
tive intent.

The Court assumes, without deciding, the validity of
point (a). Because of the Court’s findings with respect
to Points (c) and (d), none are required concerning point
(b), and the Court hesitates to venture unnecessarily into
an area in which the principal persons involved (the real-
—. have had no opportunity to present evidence in their

The Court does find that the School District has, from
approximately 1950 to the present, consulted with real es-
tate companies concerning the location of schools in resi-
dential subdivisions. The evidence also shows that at
least one prominent realty company has given some school
land to the District outright, and has sold and continues
to sell other school land to the District at the company’s
cost. The evidence is clear that this company has had no
input concerning the size or racial composition of any
such school.

94

The Court does not, however, find that this constitutes
such a level of involvement with subdivision development
as to make the School District responsible for any segre-
gation which may have occurred. School District offi-
cials, to properly perform their duties, must be aware of
areas of residential development and the possibility of
annexation of new subdivisions to the District. It is,
therefore, only prudent for these officials to consult with
developers concerning the providing of school services for
these areas. This prudence is both logistical, in terms of
the most desirable location of school facilities, and fiscal,
in terms of acquiring sites at the lowest possible cost.
There is no indication whatsoever that the School Dis-
trict desired, encouraged, or promoted any residential
segregation. Further, there is no evidence that the racial
composition of these subdivisions was ever discussed or
considered by School District officials in any consulta-
tions with real estate companies.

(2) Other governmental activity

The intervenors have also introduced evidence for the
purpose of showing that acts and practices of certain
bodies in various levels of government have contributed
to a segregated residential condition in the School Dis-
triet, for which, through application of its neighborhood
school policy, the School District must now be held re-
sponsible. This evidence concerned the location of fam-
ily-oceupied public housing projects by the Omaha Hous-
ing Authority (an agency of the City of Omaha) and the
placement of families by race within those projects from
1938 to the mid-1950’s; legislation passed by the State of
Nebraska in 1965 which prohibited real estate brokers or
salesmen from refusing to show, sell, rent or lease prop-
erty on the basis of race unless the owner so specified :
judicial enforcement of restrictive covenants by the State
of Nebraska prior to 1948; and policies of the Federal
Housing Administration in the 1930’s concerning the un-
derwriting of home mortgages where the sales would in-
troduce ‘‘inharmonious’’ racial or nationality groups.

9h

The intervenors’ theory with respect to this evidence
is not that the Schoo] District’s failure to prevent these
policies and practices is evidence of segregative intent, but
that since these are governmental bodies and agencies,
their conduct constitutes state action for which the School
District must now provide some remedy. The Court is
aware that this theory has been adopted by some courts,
Hart v. Community School Board of Brooklyn, New York
School District No. 21, No. 72-C-1041 (E.D.N.Y., Filed
January 28, 1974); Oliver v. Kalamazoo Board of Educa-
tion, 368 F. Supp. 143 (W.D. Mich. 1973). However, as-
suming the validity of this theory, upon which the Court
does not pass, the Court simply does not agree that the
evidence introduced herein is of a character sufficient to
show state action as the substantial cause of racial imbal-
ance in the Omaha Public Schools. The evidence intro-
duced on this point consists entirely of isolated incidents
or practices, most of which took place from two to four
decades ago. Compare the substantial governmental ac-
tivity related in Hart and Uliver, supra. This Court sim-
ply does not feel that the incidents aud practices intro-
duced in evidence are of sufficient probative value to per-
mit the Court to conclude that the individual or combined
actions of the city, state and federal governments have
been a substantial factor in causing purported current
residential segregation within the Schoo] District.

CONCLUSION

As stated previously, this litigation has been focused
upon the second requirement in Keyes, namely, whether
the current racial imbalance in the Omaha School System
was intentionally caused or maintained by the defendants.
Further, as is apparent, we are dealing with a school sys-
tem which has developed on the neighborhood plan and
which has traditionally been so maintained. We are not
confronted here with a dual system, operated either statu-
torily or constitutionally, but rather with an historic uni-
tary system based upon a neighborhood school plan. There
can be no doubt that such a plan, if administered without

96

an intentionally segregative policy practiced in a meaning-
ful or significant portion of the system, is constitutionally
valid regardless of some resulting degree of racial imbal-
ance. In Deal v. Cincinnati Board of Education, 369 F. 2d
55 (6th Cir. 1966), the Court stated at page 60:

Appellants, however, pose the question of whether
the neighborhood system of pupil placement, fairly
administered without racial bias, comports with the
requirements of equal oppertunity if it nevertheless
results in a creation of schools with predominantly or
even exclusively Negro pupils. The neighborhood sys-
tem is in wide use throughout the nation and has been
for many years the basis of school administration.
This is so because it is acknowledged to have several
valuable aspects which are an aid to education, such
as minimization of safety hazards to children in
reaching school, economy of cost in reducing transpor-
tation needs, ease of pupil placement and administra-
tion through the use of neutral, easily determined
standards and better home-school communication.

Justice Powell, in Aeyes, at page 246, stated that the
legitimacy of the neighborhood concept rests on even more
basic grounds:

Neighborhood school systems, neutrally adminis-
tered, reflect the deeply felt desire of citizens for a
sense of community in their public education. Public
schools have been a traditional source of strength to
our Nation, and that strength may derive in part
from the identification of many schools with the per-
sonal features of the surrounding neighborhood.
Community support, interest, and dedication to public
schools may well run higher with a neighborhood at-
tendance pattern: distance may encourage disinter-
est. Many citizens sense today a decline in the inti-
macy of our institutions—home, church, and school—
which has caused a concomitant decline in the unity
and communal spirit of our people. I pass no judg-
ment on this viewpoint, but I do believe that this

97

Court should be wary of compelling in the name of
constitutional law what may seem to many a dissolu-
tion in the traditional. more personal fabric of their
public schools.

In the commendable national concern for alleviating
public school segregation, courts may have overlooked
the fact that the rights and interests of children af-
fected by a desegregation program also are entitled to
consideration. Any child, white or black, who is com-
pelled to leave his neighborhood and spend a signifi-
cant time each day being transported to a distant
school suffers an impairment of his liberty and his
privacy. Not long ago, James B. Conant wrote that
‘*(a)t the elementary school level the issue seems
clear. To send young children day after day to dis-
tant schools by bus seems out of the question.’’ A
community may well conclude that the portion of a
child’s day spent on a bus might be used more cre-
atively in a classroom, playground, or in some other
extracurricular school activity. Decisions such as
these, affecting the quality of a child’s daily life,
should not lightly be held constitutionally errant.
(Footnote omitted.)

This Court has made a careful and painstaking review

of the record and excellent briefs before it and has care-
fully considered the arguments and theories of all parties
to this litigation, as advanced by competent and well-
qualified counsel. From all the evidence before it, and
from reviewing the many cases dealing with the segrega-
tion problem, this Court is convinced that this record
simply does not justify the finding and determination that
the school authorities in question intentionally discrimi-
nated against minority students by practicing a deliberate
policy of racial segregation. Without such a finding, the
law does not require that a school system developed on the

98

neighborhood plan, honestly and conscientiously framed
and administered, without intention or purpose to dis-
criminate racially, must be set aside or abandoned because
a racial imbalance in certain schools sometimes is the re-
sult. See Bell, supra.

This Court has no authority, nor any directive, to sub-
stitute its opinion for what would constitute a good policy
or better policy for that of the School Board unless the
policy in question is violative of the Constitution. As
stated in Davis v. School District of Pontiac, 474 F. 2d
46, 48 (6th Cir. 1973) (Kent, J., dissenting) :

[T}here is no authority in a court of equity to im-
pose upon parties to the action remedies which the
trial judge may think would be a good policy. Policy
is for the school authorities, except as and unless
such policy creates a condition which offends the
Constitution.

This Court does not claim to have all the answers to
the problems of racial imbalance within some of the pub-
lic schools in our community or in our state or in our na-
tion. But the Court would observe that the many differ-
ent answers and proposed remedies are best left to the
sound judgment and discretion of the appropriate offi-
cials and the citizens in the communities involved, with
the provision, of course, that such judgments and discre-
tion be exercised within the framework of the Fourteenth
Amendment and without discrimination based upon race,
creed, religion or color.

Therefore, in accordance with this Memorandum Opin-
ion, an order will be entered this day dismissing the com-
plaints of the plaintiff and intervenors herein.

By the Court:

/s/ Albert G. Schatz
Judge, United States District Court.

99

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.,

De ¢Mlants.

ORDER

(Filed October 15, 1974)

Pursuant to the Memorandum Opinion of the Court
filed this day, the complaints of the plaintiff and inter-
venors are hereby dismissed, with all parties to pay their
own costs.

IT IS SO ORDERED.
By the Court:

/s/ Albert G. Schatz,
Judge, United States District Court.

100

IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

No. 74-1964
No. 74-1993

UNITED STATES OF AMERICA,
Plaintiff-Appellant,
and
NELLIE MAE WEBB, et al.,
Plaintif fs-Intervenors-A ppellants,
Vs.
SCHOOL DISTRICT OF OMAHA, et al.,
Defendants-A ppellees.

Appeal from the United States District Court for the
District of Nebraska.

Submitted: April 17, 1975
Filed: June 12, 1975

Before JONES, Senior Circuit Judge,* and HEANEY
and BRIGHT, Circuit Judges.

HEANEY, Circuit Judge.

The issue presented by this appeal is whether the un-
disputed racial segregation which exists in the Omaha
public schools denies to black students the equal protec-
tion of the laws guaranteed by the fourteenth amendment.
Because segregated educational facilities were never man-
dated by law, it is conceded that a finding of unconstitu-
tionality is dependent on a finding that the segregation
was brought about or maintained by intentional state ac-
tion. We conclude that sufficient evidence was presented

* WARREN L. JONES, Senior Circuit Judge, Fifth Circuit, sitting
by designation.

101

to establish that segregation in the Omaha School District’
was intentionally created and maintained by the defend-
ants.’ Accordingly, we require that the Omaha School
District be integrated, establish guidelines for achieving
that goal, and remand to the District Court to supervise
the process.

I. THE SEGREGATED NATURE OF THE
SCHOOL DISTRICT.

The Omaha public schools are segregated. The Dis-
trict Court so found, and the defendants do not contest
that finding. Nevertheless, we briefly describe the seg-
regated nature of the schools. In 1973-74, the School Dis-
trict of Omaha had a student population of 60,502, of
whom 20% were black. It operated eight high schools,
twelve junior highs, one middle school (grades 5-7), and
seventy-eight elementary schools. Over 50% of the black
students in the District attended schools which had an
80% to 100% black enrollment,’ while 73% of the white

1. The District embraces most of the City of Omaha and part
of Sarpy County, Nebraska.

2. The defendants are the School District of Omaha [District],
the Superintendent of Schools for the District, and the twelve
members of the Board of Education for the District.

3. The following chart represents the number of black students
who attended schools which were 35% or more black in 1973

74:
Black Enrollment
Total Black _in Schools 35%
Enrollment or More Black
Elementary Schools 6,876 5,638
Junior High Schools 2,634 2,291
High Schools 2,452 1,355

11,962 9,284

102

students attended schools with black enrollments of less
than 5%.

At the high school level, Tech was 96% black, and
shared a common attendance zone with Central, which was
32% black. North was 36% black, Benson was 14% black,
and South was 3% black. The remaining three high
schools enrolled less than fifteen black students.

At the junior high level, Horace Mann was 97% black,
Monroe was 39% black, McMillan was 36% black, Indian
Hill was 19% black, Hale was 10% black, and Lewis and
Clark was 5% black.‘ The six remaining junior high
schools had enrollments of less than 3% black. One mid-
dle school, Martin Luther King, opened in September,
1973, with an 82% black enrollment.

At the elementary level, three schools (Kennedy, Loth-
rop, and Conestoga) were over 90% black. An additional
seven were between 75% and 90% black, two were be-
tween 50% and 75% black, two were between 35% and
50% black, ten were between 10% and 35% black, three
were between 5% and 10% black, and eighteen were be-
tween 1% and 5% black. Thirty-three elementary schools
were either all white or had less than 1% black enrollment.

The faculties were also segregated. In 1972-73, the
latest year for which figures were provided in the rec-
ord, the District employed 193 black teachers. Of that
number, 121 or 62% were assigned to majority black
schools,§’ and 159 or 82% were assigned to the twenty-

4. Tech Junior High was 91% black in its final year of oper-
ation, 1971-72.

5. Hereinafter. we use the following terms used by the parties
and the District Court: ‘‘Majority’’ white or black means that
the enrollment at a given school is at least 50% of the desig-
nated race. ‘‘Predominantly’’ white or black means that the
enrollment is at least 65°* of the designated race.

103

three schools which had a black enrollment exceeding 25%.
Thus, only 18% of the black teachers were assigned to
the seventy-five schools with enrollments less than 25%
black.

At the high school level, 23 of the 49 black teachers
were assigned to Tech (95% black), and 44 black teachers
(90% of the total) were assigned to the three high
schools with more than 30% hlack enrollment: Tech, Cen-
tral and North. Only five black high school teachers
were assigned to the five remaining high schools, and
two of those were assigned to Benson, which was 10%
black. One high school, Northwest, had no black teachers.

At the junior high level, 18 of the 38 black teachers
were assigned to Mann (98% black). and 28 black teach-
ers (74% of the total) were assigned to the three junior
high schools with more than 30% black enrollment: Mann,
McMillan and Monroe. The ten remaining black teachers
were assigned to five junior high schools. Four junior
high schools had no black teachers.

At the elementary level, 79 of the 106 black teachers (or
75%) were assigned to ten schools with black enrollments
of over 75%, and 86 black teachers (81% of the total)
were assigned to the sixteen elementary schools with
black enrollments exceeding 25%. The remaining 20 black
elementary teachers were sprinkled over the sixty-two
schools with less than 25% black enrollment. Lothrop
elementary (96% black) had more black elementary teach-
ers than those sixty-two schools combined. At least
forty-six elementary schools with predominantly white
enrollments did not have a single black faculty member.

No discussion of the segregated nature of the Omaha
public schools would be complete without mention of the
segregated housing patterns in the city and some of the
reasons therefor. The area in which most of the black
community resides is commonly referred to as the ‘‘ Near
North Side.” The area encompassed by that term has
changed as blacks have spread out from the core area,
particularly toward the northwest. Newly developing
residential areas on the periphery of the city, as well as

104

older residential areas beyond the Near North Side’s
‘encroachment pattern,’’ remain almost exclusively white.

The evidence established that segregated housing pat-
terns in the city were the result of discriminatory state
and private actions. Between 1938 and 1953, the Omaha
Housing Authority opened five large family-oceupied pub-
lic housing projects. Four were constructed in, or adja-
cent to, the Near North Side, and each was over 99%
black in 1973. One was located in South Omaha, and be-
came a ‘‘white project.’ The Housing Authority en-
couraged racially discriminatory housing assignment by
allowing white applicants for public housing to turn down
openings in ‘‘black’’ projects while remaining at the top
of the priority list. Compare Gautreaua v. Chicago Hous-
ing Authority, 296 F. Supp. 907 (N.D. Ill. 1969). By
1955, the school board was aware of the segregated nature
of the housing projects and was struggling to cope with
large increases in black enrollment causing overcrowding
at Druid Hill, Kennedy, Kellom, Lake, and Lothrop ele-
mentary schools.°

Private racial discrimination in the housing market
was also prevalent. It was common for racial covenants
to be included in deeds even after Shelley v. Kraemer, 334

6. An early school report published in 1951 recognized that

* * * There is a tendency toward the restriction of the
residence of Negroes, which has caused a certain amount

of geographical segregation. * * *
That report also stated:

* * * Segregation, even though it is a result of residence
rather than administration, is most undesirable educa-
tionally. Certainly it is a factor which must be taken into
consideration in the redistricting of the elementary schools
and in the location of new school structures.

Later reports by and large ignored racial segregation in the
schools.

105

U.S. 1 (1948). In 1953, the Code of Ethics discouraged
realtors from selling property to blacks in a white neigh-
borhood. In the late 1960’s, sellers were given an option
by the realtors to cross out a sentence barring discrimi-
nation in listing agreements. And, at least from 1965
through 1968, it was common practice to put the word
‘‘CONDITIONS” on any multiple listing where the seller
had indicated that he did not wish to sell the property
to minorities. Approximately one-third to one-half of
— listing cards during that period had this nota-
on.

Il. THE LEGAL STANDARD GOVERNING PROOF
OF UNCONSTITUTIONAL SCHOOL SEGREGATION

Although Brown v. Board of Education, 347 U.S. 483
(1954), dealt only with a school system in which segrega-
tion was mandated by law, it has since been made clear in
a series of ‘‘northern and western”’ cases’ that no inten-

7. See, e.g., Milliken v. Bradley, 41 L. Ed. 2d 1069 (1974) (De
troit); Keyes v. School District No. 1, 413 U. S. 189 (1973)
(Denver); Hart v. Community School Bd. of Ed., N. Y. Sch.
Dist. No. 21, 512 F. 2d 37 (2nd Cir. 1975) (New York City);
Morgan v. Kerrigan, 509 F. 2d 580 (ist Cir. 1974), cert. denied,
43 U.S.L.W. 3601 (1975) (Boston); Oliver v. Michigan State
Board of Education, 508 F. 2d 178 (6th Cir. 1974), cert. denied,
43 U.S. L.W. 3601 (1975) (Kalamazoo); Berry v. School Dist.
of City of Benton Harbor, Mich., 505 F. 2d 233 (6th Cir. 1974);
Brinkman y. Gilligan, 503 F. 2d 684 (6th Cir. 1974) (Dayton);
Johnson v. San Francisco Unified School District, 500 F. 2d
349 (9th Cir. 1974); Soria v. Oxnard School District Board of
Trustees, 488 F. 2d 579 (9th Cir. 1973), cert. denied, 416 U. S.
951-952 (1974); United States v. Board of Sch. Com’rs of In-
dianapolis, Ind., 474 F. 2d 81 (7th Cir.), cert. denied, 413 U. S.
920 (1973); Kelly v. Guinn, 456 F. 2d 100 (9th Cir. 1972), cert.
denied, 413 U.S. 919 (1973) (Las Vegas); Davis v. School Dis-
trict of City of Pontiac, Inc., 443 F. 2d 573 (6th Cir.), cert.
denied, 404 U. S. 913 (1971); United States v. School District

(Continued on following page)

106

tionally segregated school system can be tolerated under
the Constitution. It is equally clear that the ‘‘intent’’
which triggers a finding of uncounstitutionality is not an
intent to harm black students, but simply an intent to
bring about or maintain segregated schools. Thus, even
if a school board believes that ‘‘separate but equal’’ is
superior for black children, that belief will not save the
intentional segregation from a finding of unconstitution-
ality. ‘‘Benevolence of motives does not excuse segrega-
tive acts."’ Oliver v. Michigan State Board of Education,
508 F. 2d 178, 182-183 (6th Cir. 1974), cert. denied, 43
U.S. L. W. 3601 (1975). See also Burton v. Wilmington
Parking Authority, 365 U. S. 715, 725 (1961); Hart v.
Community School Bd. of Ed., N. ¥. Sch. Dist. No. 21,
512 F. 2d 37, 50 (2nd Cir. 1975).

Since segregation in the Omaha public schools was
obvious at the time of trial, the only question presented
to the District Court was whether or not the defendants
intended to bring about or maintain that condition. The
District Court properly recornized that segregative in-
tent usually must be inferred. It held, however, that the
burden of proving such intent rested at all times on the
appellants, and concluded that the appellants had failed
to meet that burden, despite its findings that various acts
and omissions of the defendants had the natural, probable

(Continued from previous page)

151 of Cook County, Ill., 432 F. 2d 1147 (7th Cir. 1970), cert.
denied, 402 U. S. 943 (1971); Taylor v. Board of Ed. of City
Sch. Dist. of New Rochelle, 294 F. 2d 36 (2nd Cir.), cert.
denied, 368 U. S. 940 (1961); Clemons v. Beard of Education
of Hillsboro, 228 F. 2d 853 (6th Cir.), cert. denied, 350 U. S.
1006 (1956): Husbands v. Pennsylvania, 43 U.S.L.W. 2427
(E. D. Pa. March 31. 1975): Rooker v. Special School Dist. No.
1, Minneapolis, Minn., 351 F. Supp. 799 (D. Minn. 1972):
Spangler v. Pasadena City Board of Education, 311 F. Supp.
501 (C. D. Calif. 1970).

107

foreseeable and actual consequence of creating and main-
tining segregation.®

We hold that a presumption of segregative intent
arises once it is established that school authorities have
engaged in acts or omissions, the natural, probable and
foreseeable consequence of which is to bring about or
maintain segregation. When that presumption arises,
the burden shifts to the defendants to establish that ‘‘seg-
regative intent was not among the factors that motivated

8. The district Court found in several instances that the seg-
regative results were not only foreseeable, but that the de-
fendants had conscious knowledge of the likelihood of such
results, particularly with respect to faculty assignment, school
construction and the deterioration of Tech High.

9. The use of presumptions in civil rights cases is not a novel
one. See Keyes v. School District No. 1, supra at 209. See
also Comment, Unlocking the Northern Schoolhouse Doors, 9
HARV. CIV. RIGHTS CIV. LIB. L. REV. 124, 141 (1974) As
the Supreme Court said in Keyes:

* * * In the context of racial segregation in public educa-
tion, the courts, including this Court, have recognized a
variety of situations in which “fairness” and “policy”
require state authorities to bear the burden of explaining
actions or conditions which appear to be racially moti-
vated. Thus, in Swann, 402 U.S., at 18 * * * we observed
that in a system with a “history of segregation,” “where
it is possible to identify a ‘white school’ or a ‘Negro
school’ simply by reference to the racial composition of
teachers and staff, the quality of school buildings and
equipment, or the organization of sports activities, a prima
facie case of violation of substantive constitutional rights
under the Equal Protection Clause is shown.” * * * Nor
is this burden-shifting principal limited to former statutory
dual systems. * * *

Keyes v. School District No. 1, supra at 209-210 (Emphasis
supplied).

108

their actions.” Keyes v. Sci.vol District No. 1, 413 U.S.
189, 210 (1973).

Two other Circuits have recognized a presumption
hased on the natural, probable and foreseeable conse-
quences test. Hart v. Community School Bd. of Ed., N.Y.
Sch. Dist. No. 21, supra at 50-51; Oliver v. Michigan
State Board of Education, supra at 182. The Second
Circuit reasoned :

* * * [W]e believe that a finding of de jure segrega-
tion may be based on actions taken, coupled with
omissions made, by governmental authorities which
have the natural and foreseeable consequence of caus-
ing educational segregation. * * *

To say that the foreseeable must be shown to have
been actually foreseen would invite a standard al-
most impossible of proof save by admissions. When
we consider the motivation of people constituting a
school board, the task would be even harder, for we
are dealing with a collective will. It is difficult
enough to find the collective mind of a group of
legislators. See Palmer v. Thompson, 403 U. S. 217,
224-25 * * * (1971); and see Keyes v. School District
No. 1, supra, 413 U. S. at 233-34 * * * (Powell, J.,
concurring). It is even harder to find the motiva-
tion of local citizens, many of whom would be as re-
luctant to admit that thev have racial prejudice as
to admit that they have no sense of humor.

* = *

Speaking in de jure terms does not require us, then,
to limit the state activity which effectively spells
segregation only to acts which are probably motivated
by a desire to discriminate. See Wright v. Council
of City of Emporia, supra, 407 U. S. at 461-62 * * °.
Aside from the difficulties of ferreting out a collec-
tive motive and conversely the injustice of ascribing
collective will to articulate remarks of particular viz
ots, the nature of the ‘“‘state action’’ takes its quality
from its foreseeable effect. The Faqurteenth Amend-

109

ment is not meant to assess blame but to prevent in-
justice.

Hart v. Community School Bd. of Ed., N. ¥. Sch. Dist.
No. 21, supra at 50 (Footnotes omitted.) Cf. Morgan v.
Kerrigan, 509 F. 2d 580, 588 (1st Cir. 1974), cert. denied,
43 U.S. L. W. 3601 (1975).'°

We have previously used language which supports the
use of a presumption in cases like this one:

* * * Simply to say there was no intentional gerry-
mandering of district lines for racial reasons is not
enough. As Mr. Justice Harlan once observed, ‘‘ [T]he
object or purpose of legislation is to be determined
by its natural and reasonable effect, whatever may
have been the motives upon which legislators acted.’’
New York ex rel. Parke, Davis & Co. v. Roberts, 171
U. S. 658, 681 ** * (1898) (dissenting opinion). * * *

Haney v. County Board of Education of Sevier County,
Ark., 410 F. 2d 920, 924 (8th Cir. 1969).

Because the District Court failed to recognize such a
presumption, it gave insufficient effect to its own factual
findings. We conclude that, in five decision-making areas,
the appellants produced substantial evidence that the de-
fendants’ actions and inactions in the face of tendered
choices had the natural, probable and foreseeable conse-
quence of creating and maintaining segregation. The
five areas include faculty assignment, student transfers,

10. In Bradley v. Milliken, 338 F. Supp. 582, 587, 592 (E. D. Mich.
1971), aff'd in part & vacated in part, 484 F. 24 215 (6th Cir.
1973), rev’d on other grounds, 41 L. Ed. 2d 1069 (1974), the
District Court found unconstitutional segregation based on a

and affirmed that portion of the District Court’s opinion, stat-
ing that, “‘under our decision last Term in Keyes * * * the
findings [of de jure segregation] appear to be correct.”’ Id.
at 1087 n. 18.

110

optional attendance zones, school construction, and the
deterioration of Tech High. The proof in each area was
sufficient in and of itself to trigger the presumption of
segregative intent.'' We also conclude that the defend-
ants failed to carry their burden of establishing that seg-
regative intent was not among the factors which moti-
vated their actions. Accordingly, we hold that the segre-
gation in the Omaha publie schools violates the Constitu-
tion and must be ‘‘eliminated root and branch.’’ Green

v. School Board of New Kent County, 391 U. S. 430, 438
(1968).

Ill. THE EVIDENCE ESTABLISHING
INTENTIONAL SEGREGATION.

A. FACULTY ASSIGNMENT

The history of faculty assignment in the Omaha public
schools demonstrates that the faculty segregation detailed

11. In light of the conclusive evidence of intentional segregative
practices by the school district, we have not addressed our-
selves to the appellants’ contention that the public and pri-
vate racial discrimination in housing provides an alternate
ground for ordering all-out school integration. However. we
do subscribe to the Fourth Circuit’s reasoning:

* * * If residential racial discrimination exists, it is im-
material that it results from private action. The school
board cannot build its exclusionary attendance areas upon
private racial discrimination. * * *

Brewer v. School Board of City of Norfolk, Va., 397 F. 2d 37.
41-42 (4th Cir. 1968) (en banc). See also United States v.
Board of Sch. Com’rs of Indianapolis, Ind., supra at 85-86, 88;
Kelly v. Guinn, supra at 105 n. 7; Spangler v. Pasadena City
Board of Education, supra at 522. Cf. Milliken v. Bradley.
supra at 1097 (Stewart, J.. concurring); Swann v. Charlotte-
Mecklenburg Board of Education, 402 U. S. 1, 7 (1971); John-
son v. San Francisco Unified School District, supra at 351.

11]

in Part I of this opinion resulted from intentional racial
discrimination. The Omaha school district hired its first
two black teachers in 1940-41, assigning them to majority
black elementary schools. During the next twenty-three
years, every black teacher hired by the District was
assigned to a majority black school. As of 1961-62, the
57 black teachers employed by the District were assigned
to seven majority black schools, and eighty majority
white schools did not have a single black teacher. No
black teachers were assigned to the secondary level until
1959-60, when seven were assigned to Mann Junior High,
which opened as the first majority black secondary school,
with a 71% black enrollment. No black teachers were as-
signed to the high school level until 1963-64, the first
vear in which a majority black high school existed. Two
black teachers were then assigned to Tech High (51%
black), and one was assigned to North (9% black).

In light of the foregoing evidence, the District Court
properly found that. from 1940 to ‘‘the early 1960’s,’’ the
schoo] district had

* * * a policy of placing black teachers in majority
black schools only, and also had a policy of confining
qualified black secondary teachers to the elementary
grades. eee

United States v. Schooi Dist. of Omaha [Omaha II), 389
F. Supp. 293, 318 (D. Neb. 1974).”

However, it erred in finding that the segregative place-
ment policies were ‘‘discarded in approximately 1963’’
and that

* * * substantial progress has been made in eradicat-
ing the effects of these policies. This has been due
in large measure to affirmative action taken by the

12. The deliberate racial discrimination in faculty assignment
was, in and of itself, a violation of the fourteenth amendment.

Morgan v. Kerrigan, supra at 595.

112

School District not only as to placeme: but also as
to hiring.

Id. 318-319.

For the record demonstrates that, although the ‘‘affirma-
tive action program’’ brought more black teachers into
the system, the racially discriminatory assignment policies
were continued. Of 81 new black teachers hired between
1963 and 1969, 67 were assigned to majority black schools.
In 1972-73, 82% of all black teachers continued to be as-
signed to schools having a black enrollment exceeding
25%, even though such schools comprised only one-fourth
of the total number of schools in the District. In that
vear, fifty-one, or more than half, of the District’s ap-
proximately ninety-eight schools still did not have a single
black faculty member. Compare Swann v. Charlotte-
Mecklenburg Board of Education, 402 U. S. 1, 19-20
(1971); United States v. Montgomery County Board of
Education, 395 U. S 225, 232-233 (1969); Berry v. School
Dist. of City of Benton Harbor, Mich., 505 F. 2d 238, 240-
241 (6th Cir. 1974); Booker v. Special School Dist. No.
1, Minneapolis, Minn., 351 F. Supp. 799, 804-805 (D. Minn.
1972).

Since it was established that the faculty was segre-
gated on the basis of race—the natural, probable and
foreseeable consequence of which was to identfy some
schools as ‘‘black schools’’—a presumption of segregative
intent arose, and the burden shifted to the defendants to
prove that segregative intent was not among the factors
which motivated their decision making.’ This presump-

13. The Supreme Court has indicated that proof of faculty segre-
gation raises a presumption that the entire system has been
segregated as a result of intentional action. See Swann v.
Charlotte-Mecklenburg Board of Education, supra at 18. As
the Ninth Circuit has noted:

* * * (TJeacher assignment is so clearly subject to the
complete control of school authorities unfettered by such

(Continued on following page)

113
tion was not rebutted in the record."*

(Continued from previous page)

extrinsic factors as neighborhood residential composition
or transportation problems, that the assignment of an
overwhelmingly black faculty to black schools is strong
evidence that racial considerations have been permitted
to influence the determination of school policies and prac-
tices. e*ees

Kelly v. Guinn, supra at 107. See also Kemp v. Beasley, 389
F. 2d 178, 190 (8th Cir. 1968); Booker v. Special School Dist.
No. 1, Minneapolis, Minn., supra at 806-809. Cf. Cato v. Par-
ham, 403 F. 2d 12, 15 n. 7 (8th Cir. 1968).

14. The school district’s explanation for faculty segregation was
a belief that black ‘‘role models’’ should be assigned to teach
black children. This explanation is not sufficient to rebut
the presumption for three reasons. First, such a belief is un-
acceptable as a justification for racially discriminatory prac-
tices, since it is contrary to the factual underpinnings of
Brown v. Board of Education, 347 U. S. 483 (1954). See Cato
v. Parham, supra at 15 & nn. 6 & 7; Smith v. Board of Ed-
ucation of Morrilton Sch. Dist. No. 32, 365 F. 2d 770, 782 (8th
Cir. 1966). Cf. Morgan v. Kerrigan, supra at 596; Oliver v.
Michigan State Board of Education, supra at 185.

Second, such a belief—if truly held—reinforces rather
than undercuts the presumption of segregative intent with
respect to students, since it would logically suggest herding
black students into their own schools where they could be
taught by their proper black role models. The defendants
are thus hoist by their own petard.

Third, the school district’s explanation is belied by a 1966
report by the Superintendent. That report declared that the
ACLU’s request for non-white teachers in all Omaha public
schools “is currently unrealistic’ but that “(t]he climate
of our community has been increasingly receptive.” This
report suggests that the defendants were ‘‘effectuating the
discriminatory designs of private individuals.’ United States
v. City of Black Jack, Missouri, 508 F. 2d 1179, 1185 n. 3 (8th
Cir. 1974), quoting Dailey v. City of Lawton, 425 F. 2d 1037,
1039 (10th Cir. 1970). That is clearly unconstitutional state
action.

114

B. STUDE*T TRANSFERS

Prior to 1963-64, students in the District could transfer
to another school only for reasons of health or hard-
ship. In March of 1964, the school board initiated a new
transfer policy. That policy, which continued in effect
through the trial,!’ allowed any student to transfer if:

(1) the student’s achievement level was at least equal to
the average achievement level of the receiving school;
(2) the receiving school was not overcrowded; (3) the
student’s parents provided the transportation; and (4)
the request was a formal one.

The District Court found that the evidence concerning
the transfer policy was not sufficient to establish an in-
tent to segregate students, and premised that ultimate
conclusion on its specific findings that: (1) there was
‘no evidence’’ that the achievement level and transpor-
tation limitations discriminated against black students;'°

15. Counsel for the defendants stated at oral argument that this
transfer policy has been abandoned by the present school
board, and has been replaced by a policy permitting transfers
of right to minority students when the transfer will result in
better racial balance. While commendable, the new policy
does not affect the issue of intent underlying prior actions,
and is relevant only with respect to the remedy. See United
States v. Board of Sch. Com’rs of Indianapolis, Ind., supra at
89. Moreover, where, as here, a transfer policy simply gives
students the option to choose between identifiably black and
white schools, the relief provided is not sufficient. See Green
v. School Board of New Kent County, 391 U. S. 430, 438-442
(1968).

16. A report issued by the Mayor's Bi-Racial Subcommittee on
Education in 1966 stated that “‘[t]he 20 elementary schools
with lowest mean grade six reading scores * * * enroll the ma-
jority of Negro pupils in Omaha.’’ Similarly. in a 1967 letter
to the superintendent. Principal Carl Palmquist of Tech High

115

(2) the transfer policy was used equally by black and
white students and the board did not discrim

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0085%3A2. Public record. Not legal advice.