Petition — Bowen v. United States

OTIS R. BOWEN as Governor of the State of Indiana;

THEODORE L. SENDAK, as Attorney General of the

State of Indiana;

HAROLD H. NEGLEY, as Superintendent of Public In-

struction of the State of Indiana;

THE INDIANA STATE BOARD OF EDUCATION, a

public corporate body,

Petitioners,

vs.

UNITED STATES OF AMERICA,

and

DONNY BRURELL BUCKLEY,

ALYCIA MARQUESE BUCKLEY, By their parent and

next friend, Ruby L. Buckley, on behalf of themselves

and all Negro school age children residing in the area

served by original defendants herein,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIROUIT

THEODORE L. SENDAK

Attorney General of Indiana

DONALD P. BOGARD

Chief Counsel

WILLIAM F. HARVEY

Special Counsel

ATTORNEYS FOR

PETITIONERS

Office of Indiana Attorney General

219 State House

Indianapolis, Indiana 46204

Telephone: (317) 633-6249

C. K Pauley & Co., Inc., Indianapolis

233 mR

TABLE OF CONTENTS 3

| Page

Table of Authorities ok ii

Opinions Below 2

Jurisdiction 3

Question Presented for Review 3

Constitutional and Statutory Provisions Involved — 3

F a a ean aE 5

I. Course of Proceedings Below ................. aw Ty

A. Indianapolis I PE RE, So Nie) RO 5

B. Indianapolis Iii 1 7

C. Indianapolis IV 3 13

II. Facts Material to Question Presented 16

Reasons for Allowance of the Writ 18

I. This Court should exercise its power of super-

vision over the Seventh Circuit which has, in

effect, ignored the order of remand from this

Court C / SRE PLO ON 18

r . 18

B. LP. S. should be desegregated within its

» — 19

. i

e

1 r .

TABLE OF AUTHORITIES

Cases Page

Austin Independent School District v. United States,

97 S. Ct. 517 (1976) 19

Dayton Board of Education v. ee - U.S. 406

1 18

Green v. County School Board of New Kent County,

Virginia, 391 U.S. 430 (1968) 9

Hills v. Gautreaux, 425 U.S. 284 (1976) —

Milliken v. Bradley, 418 U.S. 717 (1974) 12, 17, 18,

19, 20, 22, 23

Pasadena City Board of Education v. Spangler, 427

. l

Spencer v. Kugler, 326 F. Supp. 1235 (D. C. N. J., 1971) 25

Swann v. Charlotte- Mecklenburg Board of Education,

,, IT TERS eee aOR 9, 19, 26

U.S.A. v. Board of School Commissioners, 332 F. Supp.

. eae 3, 6, 19, 21

U.S.A. v. Board of School Commissioners, 474 F. 2d 81

(7th Cir., 1973) —

U.S.A. & Buckley v. Board of School Commissioners,

368 F. Supp. 1191 (S.D. Ind., 1973) 3, 9, 21, 22

U.S.A. & Buckley v. Board of School Commissioners,

503 F. 2d 68 (7th Cir., 1974) 3, 12, 23

U.S.A. & Buckley v. Board of School Commissioners,

419 F. Supp. 180 (S. D. Ind., 1975) 3,17

U.S.A. & Buckley v. Board of School Commissioners,

541 F. 2d 1211 (7th Cir., 1976) | 2, 14, 24

Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977) 5, 14, 18, 25

Washington v. Davis, 426 U.S. 299 (1976) ............5, 14, 18, 20

ii

TABLE OF AUTHORITIES—OContinued

Constitutional and Statutory Provisions

Pages

Fourteenth Amendment to the Constitution of the

United States « &F

20 U.S.C. §1712 —. ̃ͤ—— 23

J | eases 3

28 U.S.C. 8 1343(3) 3 7

28 U.S.C. § 2101 (e) 3

I —T—TT—0—0T—0— 7

899090 0011111111111 7

42 U.S.C. 8 1983 7

9 7

221% —— 4,5

. 14, 17, 25, 26

Rule 19 (1) (b) of the Rules of the . Court of

the United States * 3

IN THE

Supreme Court of the United States

October Term, 1977

OTIS R. BOWEN as Governor of the State of Indiana;

THEODORE L. SENDAK, as Attorney General of the

State of Indiana;

HAROLD H. NEGLEY, as Superintendent of Public In-

struction of the State of Indiana;

THE INDIANA STATE BOARD OF EDUCATION, a

public corporate body,

vs.

UNITED STATES OF AMERICA,

and

DONNY BRURELL BUCKLEY,

ALYCIA MARQUESE BUCKLEY, By their parent and

next friend, Ruby L. Buckley, on behalf of themselves

and all Negro school age children residing in the area

served by original defendants herein,

Respondents.

Petitioners,

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH OCIROUIT

Petitioners’, Otis R. Bowen, as Governor of the State of

Indiana; Theodore L. Sendak, as Attorney General of the

———

r

9 7

State of Indiana; Harold H. Negley, as Superintendent of

Public Instruction of the State of Indiana; and the Indiana

State Board of Education, a public corporate body (here-

after State Defendants) respectfully pray this Court issue

a Writ of Certiorari to review the Opinion of the United

States Court of Appeals for the Seventh Circuit (hereafter

Seventh Circuit) issued on February 14, 1978, in Cause

Numbers 75-1730 through 75-1737, 75-1765, 75-1936, 75-1965,

and 75-2007, on remand from this Court. 429 U.S. 1068

(1977).

*

OPINIONS BELOW

The opinion of the Seventh Circuit on remand was issued

on February 14, 1978, and has not been officially reported.

That Opinion has been appended hereto at page A-1. The

Order of this Court remanding the case to the Seventh

Circuit may be found at 429 U.S. 1068 (1977), and the

Opinion of the Seventh Circuit which was vacated and re-

manded may be found at 541 F.2d 1211 (7th Cir., 1976).

A-31. The decision by the United States District Court for

the Southern District of Indiana, Indianapolis Division

(hereafter District Court) which gave rise to the appeal to

the Seventh Circuit may be found at 419 F.Supp. 180 (S.D.

Ind., 1975). A-68.

Superintendent of Schools; Erle A. Kightlinger, as President of the

Board of School Commissioners; Jessie Jacobs, Carl J. Meyer, Paul E.

Lewis, Lester E. Neal, Constance R. Valdez, W. Fred Ratcliff, Members of

the Board of School Commissioners of the City of Indianapolis; The Met-

ropolitan School District of Lawrence Township, Marion County, Indiana;

The Metropolitan School District of Perry Township, Marion County,

Indiana; The Metropolitan School District of Warren Township, Marion

County, Indiana; The Metropolitan Sehool District of Wayne Township,

Marion County, Indiana; The Metropolitan School District of Decatur

Township, Marion County, Indiana; The Franklin Township Community

School Corporation, Marion County, Indiana; The Metropolitan School

Distriet of Washington Township, Marion County, Indiana; The School

Town of Speedway, Marion County, Indiana; The School City of Beech

Grove, Marion County, Indiana; Citizens for Quality Schools, Ine.;

Coalition for Integrated Education; Indiana State Teachers Association.

Other decisions by the District Court and the Seventh

Circuit in this case are 332 F.Supp. 655 (S.D. Ind., 1971),

af d. 474 F. 2d 81 (7th Cir., 1973), cert. denied 413 U.S. 920

(1973) ; 368 F.Supp. 1191 (S.D. Ind., 1973), af d. 503 F.2d

68 (7th Cir., 1974), cert. denied 421 U.S. 929 (1975). Those

decisions are appended to the Petition for Writ of Certio-

rari in No. 76-515.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. §1254(1) and Rule 19(1)(b) of the Rules of this

Court, to review an opinion of the Seventh Circuit which

has so departed from the scope of the order of remand by

this Court as to call for an exercise of this Court’s super-

visory power because the Seventh Circuit has ignored the

order of remand from this Court and has decided a federal

question in a way in conflict with applicable decisions of

this Court.

The opinion of the Seventh Circuit was issued on Febru-

ary 14, 1978. This Petition is timely in that it is filed prior

to the expiration of the ninety (90) day period allowed by

28 U.S.C. § 2101(c).

QUESTION PRESENTED FOR REVIEW

Whether the decision of the Seventh Circuit so ignored

the Order of Remand to require this Court to exercise its

power of supervision over that Court and to reverse its

decision on an important federal question which has been

decided contrary to the applicable decisions of this Court.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourteenth Amendment to the Constitution of the

United States provides, in part, as follows:

§1. Citizenship— Due Process of law — Equal

protection.—All persons born or naturalized in the

United States, and subject to the jurisdiction there-

of, are citizens of the United States and of the state

wherein they reside. No state shall make or enforce

en

2

—

4

any law which shall abridge the privileges or immu-

nities of citizens of the United States; nor shall any

state deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

— its jurisdiction the equal protection of the

ws.

§5. Power to enjoin amendment.—The congress

shall have power to enforce, by appropriate legis-

lation, the provisions of this article.

42 U.S.C. § 2000c-6 provides, in part, as follows:

(a) Whenever the Attorney General receives a

complaint in writing—

(1) signed by a parent or group of parents

to the effect that his or their minor children,

as members of a class of persons similarly situ-

ated, are being deprived by a school board of

the equal protection of the laws, . . .

and the Attorney General believes the complaint is

meritorious and certifies . . . that the institution

of any action will materially further the orderly

achievement of desegregation in public education,

the Attorney General is authorized, after giving

notice of such complaint to the appropriate school

board or college authority and after certifying that

he is satisfied that such board or authority has had

a reasonable time to adjust the conditions alleged

in such complaint, to institute for or in the name of

the United States a civil action in any appropriate

district court of the United States against such par-

ties and for such relief as may be appropriate, and

such court shall have and shall exercise jurisdiction

of proceedings instituted pursuant to this section,

provided that nothing herein shall impower any of-

ficial or court of the United States to issue any

order seeking to achieve a racial balance in any

school by requiring transportation of pupils or stu-

dents from one school to another or one school dis-

trict to another in order to achieve such racial bal-

ance, or otherwise enlarge the existing power of the

court to insure compliance with constitutional stan-

dards. The Attorney General may implead as de-

fendants such additional parties as are or become

necessary to the grant of effective relief hereunder.

STATEMENT OF THE CASE

The Petition arises from an opinion issued by the Seventh

Circuit on February 14, 1978, remanding the Indianapolis

school desegregation case to the District Court for further

findings of fact’’ following remand to the Seventh Circuit

with instructions to that Court to reconsider the case in

light of Village of Arlington Heights v. Metropolitan Hous-

ing Development Corp., 429 U.S. 252 (1977) and Washing-

ton v. Davis, 426 U.S. 299 (1976).

L

Course of Proceedings Below

A.

“Indianapolis 1*”

The original Indianapolis lawsuit was commenced on

May 31, 1968, when the United States of America filed a

Complaint in the District Court which was assigned cause

number IP-68-C-225. The action by the United States was

brought pursuant to 42 U.S.C. § 2000c-6(a) and (b), and

was tried by the Court on July 12-21, 1971. Defendants

in the aforementioned complaint were the Board of School

Commissioners of the City of Indianapolis, its Superin-

tendent of Schools, and members of its Board.

On August 18, 1971, the District Court issued its ‘‘ Memo-

randum of Decision’’ holding that I.P.S. was guilty of de

2The District Court has characterized its various decisions in this

matter as follows: Indianapolis I is 332 F. Supp. 655 (S.D. Ind., 1971);

Indianapolis II is 368 F. Supp. 1191 (S.D. Ind., 1973); Indianapolis

III is 368 F. Supp. 1223 (S.D. Ind., 1973); Indianapolis IV is 419

F. Supp. 180 (S. D. Ind., 1975).

~. . —

—— eee

jure segregation. The District Court’s findings in that trial

were that the LP. S. School Board constructed three high

school buildings in 1961, 1963, and 1967, the placement of

which constituted acts of de jure segregation within LP. S.

The Court permanently enjoined the defendants, their

successors in Office, officers, agents, employees and all

those in active concert or participation with them from

‘‘discriminating on the basis of race in the operation of

the Indianapolis School System,’’ and further ordered the

defendants to take seven steps to ‘‘fulfill their affirmative

duty to achieve a nondiscriminatory school system.’’ 332

F.Supp. at 680. In that regard the Court instructed the

Plaintiff to bring in additional parties to seek ‘‘such relief

as to the plaintiff seems justified, 332 F.Supp. at 680, in-

cluding the possibility of the creation of a metropolitan

school district for the area of LP. S. and the surrounding

school districts.

In that opinion the District Court speculated that a

desegregation plan within IL. P.. only might not ‘‘work’’

because of the possibility of an ‘‘exodus’’ of white families

from that school district.

The Petitioners herein were never parties to that pro-

ceeding in any manner. They did not present any evidence

or examine any witnesses. They did not receive any notice

of the proceedings and did not participate in the appeal

thereof.

On September 7, 1971, pursuant to the order of the

District Court, the United States filed a ‘‘Motion to Add

Parties Defendant’’ and an order was entered on the same

date which made twelve (12) school corporations defend-

ants in the previously concluded case. However, the United

States requested no relief against any of those twelve (12)

school corporations, and no relief has since been demanded

by the United States against those schools or any other

added defendant.

— U— ——

—— ees

—

7

On September 10, 1971, the original defendants filed

their Notice of Appeal to the Seventh Circuit from the

final judgment entered on August 18, 1971. The District

Court’s opinion was affirmed, 474 F. 2d 81 (7th Cir., *

Cert. denied 407 U.S. 920 (1973).

B.

“Indianapolis II“

On September 14, 1971, a Motion to Intervene as Party

Plaintiff was filed by Donny Brurell Buckley and Alycia

Marquese Buckley who purported to intervene as repre-

sentatives of a class comprised of Negro school age children

in Marion County, Indiana. A ‘‘ Complaint in Intervention“

was filed with the motion, using the same cause number

as the previously concluded case. That Complaint named

the Board of School Commissioners of the City of Indian-

apolis, et al., as defendants, and named the Superintendent

of Public Instruction of the State of Indiana and nineteen

school districts as added defendants. The ‘‘Complaint in

Intervention’’ was brought pursuant to 42 U.S.C. § 1983,

28 U.S.C. § 1343 (3) and the Fourteenth Amendment to

the Constitution of the United States.

On October 21, 1971, an Amended Complaint was filed

by intervening plaintiffs which named the Governor, the

Attorney General, and the Indiana State Board of Educa-

tion, a public corporate body, as added defendants. That

complaint sought relief pursuant to 42 U.S.C. §§ 1983 and

1988, 28 U.S.C. §§ 1343 (3), 2201 and 2202, and the Four-

teenth Amendment to the Constitution of the United States.

The Petitioners herein and the other added defendants

filed motions with the District Court asking, in the new

trial involving them, that they not be bound by the findings

and evidence of the preceding trial and judgment.

— gn

In its Entry of December 30, 1971, the District Court

denied those motions, but held that the Defendants could

contest the issues raised in the first trial.

In its Entry of February 2, 1973, the District Court set

a trial date and stated:

. . The Trial will be limited to the issues formed

on the amended complaint of the intervening plain-

tiffs .. . and the answers thereto.’’

In a ‘‘Pre-trial Conference the day before the com-

mencement of the trial in the new action, the District

Court reversed itself and held that its findings in the first

trial were res judicata in the second trial; hence the find-

ings against LP. S. stood as before.

Trial of the new action occurred before the District Court

on June 12, 1973 through July 6, 1973, and those proceed-

ings were reopened by the Court on its own motion on

July 18, 1973. In that trial the parties were IP. S.; ten

(10) school systems located in Marion County, Indiana’ ;

ten (10) school systems located outside of Marion County,

Indiana‘ ; and the State Defendants.

Two days after the District Court reopened the proceed-

ings and took evidence, it issued its ‘‘Memorandum of

Decision.’’ In that Decision the Court refound the acts

of de jure segregation on the part of I.P.S., and held that

those acts were ‘‘imputed’’ to the Indiana State Board

of Education and the State Superintendent of Public In-

struction. The Court entered orders against all but one

of the added Defendant school districts even though it

found that there were no acts on de jure segregation at-

tributable to any of the added defendant school districts.

* Those ten school systems include eight township schools and two

schools serving a town and city located within Marion County, Indiana.

Their combined enrollment in 1972-73 was approximately 77,611 children.

* Those ten schools were located in six Indiana counties surrounding

Marion County, Indiana in which I. P. S. is located.

—— — ——

368 F.Supp. at 1208-1210. That finding has never been con-

tested by any party in these entire proceedings.

The District Court did enter findings against the Indiana

State Board of Education and the Superintendent of Public

Instruction. Those findings were that the findings against

LP.S. in the first trial, ie., that the placement of three

high school buildings constituted acts of de jure segrega-

tion, were ‘‘imputed”’ to the State Defendants. No other

specific findings were entered against any state officials.

The District Court stated that it could desegregate I. P. S.

within its own boundaries:

‘‘In other words, it is apparent that as a sheer

exercise in mathematics, it would be possible for this

Court to order desegregation of I. P. S. on a 58.9%-

41.1% basis, or some similar thereto, 80 that no

school could, for the time being, be racially identi-

fiable as a black school . . .’’ 368 F.Supp. at 1198.

However, the Court then stated that the desegregation

of LP.S. could not be permanently accomplished within

its own boundaries, primarily because of the possibility

of resegregation within a matter of two or three years.“

368 F. Supp. at 1198.

Therefore, contrary to Green v. County School Board

of New Kent County, Virginia, 391 U.S. 430 (1968), Swann

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

(1971), and Pasadena City Board of Education v. Spangler,

427 U.S. 424 (1976), the District Court was not looking for

a plan that promised realistically to work now, but one

that promised to work, it believed, for all time. Compare

Swann, supra, at pages 31 and 32.

There was nothing in the Buckley complaint which in

any way raised the question of the adequacy of an ‘‘Indian-

apolis only plan’’. The United States has never stated a

claim for relief against the added defendants for any

alleged segregatory acts. In fact, in oral argument, the

—

10

United States stated: Upon the evidence that has been

presented, we are unable to discern the existence of such

violations’’. (T. 1973, p. 2818). Further, concerning the

state defendants’’, the position of the United States was,

we have seen no evidence of segregatory acts perpetrated

by the state defendants.’’ (T. 1973, p. 2819).

The issuc of the feasibility of an Indianapolis only plan

was put in the case by the District Court as it stated

expressly during the presentation of the defendants’ case

in the 1973 trial:

‘(T]he purpose of this hearing is to concern itself

with the method by which desegregation of the de

jure segregated Indianapolis Public School City...

shall be accomplished within the confines of the

school city, or shall be a larger geographical area

be considered [sic] . . . (T. 1509-1510)

But the Court did not deny that a desegregation plan

within I.P.S.—which had a ratio of sixty (60) per cent

white and forty (40) per cent black—could be accomplished.

Rather, the Court wanted to effect a desegregation plan

for I.P.S. which, in terms of racial balance, would always

be ‘‘stable’’. Compare Pasadena City Board of Education

v. Spangler, supra. The gist of the Court’s concept of

desegregation was not a workable plan now, but a plan

which once done would forever function in the particular

way it was first decreed:

In my opinion of 1971, I suggested it might be

more practical to put more emphasis on the word

‘work’ than on the word ‘now’—which is why we are

all here, I suppose. So. . . I am interested in finding

out... whether or not it is practical, feasible, and

workable to desegregate the Indianapolis School

System within its own boundaries. I don’t mean

‘Is It Mathematically Possible to Do It!“ There is

no use to take up all this time and all of this expense

trying to determine if it is theoretically possible to

+ NO Smee. Eee ne Oe

11

desegregate a school system which has 60 per cent

white and 40 per cent black.

Obviously . . it is mathematically possible. Any

first grade student of mathematics knows that.

(Emphasis supplied) (T.1973, pp. 1512-1513.)

In the entire record there is not a single piece of evi-

dence which disputed the court’s conclusion that a work-

able plan can now be effected in LP.S. It was not disputed

by any party in the trial, including the intervening plain-

tiffs and the United States.

Notices of appeal to the Seventh Circuit were filed by

the original defendants and all added defendants by August

16, 1973, and on September 18, 1973, the United States

filed its notice of appeal. The Seventh Circuit heard oral

argument on February 20, 1974, and issued its decision

on August 21, 1974, affirming the District Court in part,

and holding that: .

Ss state officials have, by various acts an

2 promoted segregation and inhibited de-

segregation within IPS, so that the state, as —

ageney ultimately charged under Indiana law wit

the operation of the public schools, has an affirma-

tive duty to assist the IPS Board in desegregating

IPS within its boundaries (see Part IV hereof.)

The Seventh Circuit also held that the addition of the

added defendants to the second lawsuit (after the Indian-

apolis I case was already on appeal), and binding those

added defendants to the findings of Indianapolis I, was not

a denial of due process.

Further, the Seventh Circuit reversed the District Court 8

rulings relating to a metropolitan remedy beyond Marion

County, Indiana, and remanded the case to the District

Court for further proceedings regarding a multi-district

remedy within Marion County, Indiana. Certiorari was

denied on April 21, 1975. 95 S.Ct. 1654 (1975).

—ñ———— —

12

In its opinion the Seventh Circuit pointed out that the

District Court had found that the added defendant school

corporations were not guilty of any segregatory or dis-

criminatory acts. On the basis of Milliken v. Bradley, 418

U.S. 717 (1974), the Court held that the added defendant

school corporations beyond the Uni-Gov boundaries’’ were

not subject to the inter-district remedies imposed upon

them by the District Court. The Seventh Circuit interpreted

Militken as follows:

Tbe Supreme Court further concluded that, even

if state agencies participated in the maintenance of

the Detroit system, as the lower courts had held, it

did not follow that an inter-district remedy would

be constitutionally justified or required.“ 503 F.2d

at 79, 80.

After discussing various questions which had been raised

on appeal, the opinion of the Seventh Circuit concluded:

. .. In accordance with Milliken v. Bradley .. .

we reverse the district court’s findings, conclusions,

orders and rulings insofar as they pertain to a

metropolitan remedy beyond the Uni-Gov bound-

aries; insofar as they pertain to a remedy within

the boundaries of Uni-Gov, we vacate those rulings

and remand for further proceedings consistent with

that decision. The district court should determine

whether the establishment of the Uni-Gov bound-

aries without a like reestablishment of IPS bound-

aries warrants an inter-district remedy within Uni-

Gov in accordance with Milliken.“ Id. at 86.

Finally, the Court specifically instructed the District

Court to disregard so-called white flight’? and to cease

utilizing white flight“ considerations to delay complete

desegregation within IL P. S. The District Court was directed

promptly to formulate a decree which would eliminate de-

segregation existing within I. P. S. Id. at 80 and 86.

13

“Indianapolis IV“

The Seventh Circuit remanded the case to the District

Court specifically to determine whether a change in the

civil boundaries of the City of Indianapolis without a cor-

responding change in the boundaries of the School City of

Indianapolis warranted an interdistrict remedy.

However, in a Pre-Trial Entry dated December 13, 1974,

following a Pre-Trial Conference on December 2, 1974, the

District Court stated inter alia, that:

4 . . the remaining issues appeared to be, at a

minimum, the following: (a) The effect, if any, of

the passage of the ‘‘Uni-Gov’’ Act in perpetuating

de jure segregation within the boundaries of IPS,

and (b), the effect, if any, of housing and zoning

laws, rules, regulations, and customs in Marion

County, Indiana, and its various political subdivi-

sions upon the de jure segregation of IPS.

On March 18, 19, 20, and 24, 1975, the District Court held

the trial which had been ordered by the Seventh Circuit and

issued its Memorandum of Decision’’ and Judgment“

on August 1, 1975. In that decision the District Court made

a number of generalized and sweepingly conclusory state-

ments without citation to any subsidiary facts or record

evidence to support them.

Those statements related to public housing as developed

by the Housing Authority of the City of Indianapolis and

that because of the location of certain housing projects in

IPS the State of Indiana ‘‘tended to cause and to per-

petuate the segregation of black pupils in IPS territory.’’

The District court concluded that because of the location

of a few public housing projects within IPS, segregation

within IPS was continued. But there was no finding that

the housing projects found in the territory of I. P. S. caused

interdistrict segregation, or caused racial segregation in

—— —

—

—

— —

14

the additional Marion County School systems. There could

not have been such a finding because there was no evidence

to support it, and it would have been contrary to massive

evidence introduced at trial.

The same kind of treatment was given to ‘‘Uni-Gov’’.

The District Court found that Uni-Gov ‘‘inhibited desegre-

gation with IPS“. There was never a finding that Uni-Gov

caused inter-district segregation, or prevented black stu-

dents from attending other Marion County Schools.

As a remedy for these ‘‘violations’’ the District Court

ordered a one-way transfer of black students from I.P.S.

to the suburban school districts so that each suburban dis-

trict would have a black student population of fifteen

percent.

On appeal, a divided Seventh Circuit affirmed the District

Court order, stating that:

Because, in 1969, 95 percent of the blacks in

Marion County lived in the inner city and segrega-

tion in its schools was under attack in federal court,

it is clear to us that Uni-Gov and its companion 1969

legislation were [A] substantial cause of interdis-

trict segregation.’ Milliken v. Bradley, 418 U.S. 717,

745 (1974), and ‘{C]ontributed to the separation of

the races by . . . redrawing school district lines.

Id. at 755 (Stewart, J., concurring). 541 F.2d, at

1220.

The Seventh Circuit recognized that ‘‘Uni-Gov was a

neutral piece of legislation on its face with its main pur-

pose to efficiently restructure civil government within

Marion County,“ but stated that the Indiana General As-

sembly should have considered ‘‘the needs of the school

system [I.P.S.] in the Uni-Gov Legislation.“ 541 F.2d, at

1220. (Emphasis Supplied). Thus, a constitutional viola-

tion was not required by the Seventh Circuit.

After remand from this Court for further consideration

in light of Village of Arlington Heights, supra, and Wash-

15

ington v. Davis, supra, the Seventh Circuit remanded the

case to the District Court for further findings of fact in a

thirty-one page document which contained the Seventh

Circuit’s opinion, a concurring opinion, and a dissenting

opinion. In that dissent Judge Tone pointed out the futile-

ness of remand to the District Court, stating at pages 30-31

of the slip opinion, Appendix A-29:

If the issue of discriminatory purpose had not

been previously addressed by the parties or the trial

court, and had first entered the case because of the

Supreme Court’s remand, it would be appropriate

for us to remand to the District Court for the taking

of evidence and findings on that issue. But that issue

was previously in the case. Discriminatory purpose

was specifically pleaded in paragraph 10 of the

intervening plaintiff's amended complaint, and evi-

dence was offered in an attempt to prove that alle-

gation after our last remand.’ This was not an irrele-

vant allegation and it was not treated as such by

counsel for the intervening plaintiffs, who under-

standably wanted two strings to their bow,“ by coun-

sel for the defendants, or by the district judge. The

proof failed, and the district judge carefully, as J

read his opinion, refrained from finding the presence

of discriminatory purpose. The tenor of his findings

on both the Uni-Gov and public housing issues was

such that it is inconceivable that he would not have

found discriminatory purpose if he had believed it

warranted by the evidence. 419 F.Supp. at 182-183.

In this tenth year of the litigation, I think that

should be an end to the matter. The usual rule should

be applied, and we should not send the case back

to permit the intervening plaintiffs to make another

attempt to prove allegations they have already tried

but failed to prove, while a complete remedy for

intra-district violations conclusively adjudicated in

1973 (474 F. 2d 81) is delayed on the chance that an

interdistrict remedy will ultimately emerge.’ (Em-

phasis supplied.) .

— — roe —

16

5 Which was for a determination of “whether the establishment

of the Uni-Gov boundaries without a like reestablishment of IPS

boundaries warrants an inter-district remedy within Uni-Gov in

accordance with Milliken.” 503 F.2d 68, 86.

* That the Court would hold as it did in Washington v. Davis,

426 U.S. 229 (1976), was, at the very least, foreseeable as 4

possibility. See 426 U.S. at 239-245; and see my earlier dissent,

541 F.2d at 1224.

The brief for the United States filed in the Supreme Court in

connection with the 1976 appeals and petitions for certiorari in

that Court stated as follows:

The United States commenced this suit to challenge racial

Full relief has been delayed for several years, however, while

the district court has considered an expanded, inter-district

remedy that the United States did not seek. In our view this

delay has been fruitless, because the evidence has not demon-

strated any purposeful inter-district racial discrimination of

the sort that would justify an inter-district mandatory reas-

signment of students.

II.

Facts Material to Question Presented

The Intervening Plaintiffs filed their Amended Com-

plaint in this Cause on October 21, 1971, alleging in Para-

graph 10 thereof:

10. Section 314 of Chapter 173 of 1969, Burns

Ind. Stat. Ann. § 48-9213 (1970 Cum. Supp.), which

chapter is known as the ‘‘Consolidated First Class

Cities and Counties Act’’ is unconstitutional and

void insofar as its [sic.] purports to exempt from

the scope and effect of said act the consolidation of

all school corporations within Marion County, In-

diana. The purpose and effect of such exemption,

as further implemented and enabled by the provi-

sions of Chapter 186 of the Acts of 1961, Burns Ind.

Stat. Ann. § 28-2338 to 28-2347 (1968 Cum. Supp.)

and Chapter 52 of the Acts of 1969, Burns Ind. Stat.

Ann. § 28-2346a (1970 Cum. Supp). have been and

are to perpetuate segregation on the basis of race

and to inhibit desegregation in the public schools

and school systems of Marion County. (Emphasis

supplied).

17

The District Court has issued three reported decisions

in this case which, pursuant to Rule 52 of the Federal

Rules of Civil Procedure, constitute the findings of facts.

Those finding and decisions encompass. seventy-six pages

of the Federal Supplement.

The ‘‘Consolidated First Class Cities and Counties Act’’

(hereafter Uni-Gov), LC. 18-4-1-1 et seg., which consoli-

dated certain functions of the civil government of the City

of Indianapolis and the County of Marion, was passed by

the Indiana General Assembly in 1969 and took effect in

1970. Although Uni-Gov was effective two years before

the District Court found segregation to exist in LP. S., its

effective date was also two years after the commencement

of this lawsuit.

The only theory of the District Court in this case is, and

always has been, that in some way, the General Assembly

of Indiana should have anticipated that a United States

District Court would, at a time in the future, find segrega-

tion to exist in LP. S. Thus, the Legislature, accordingly,

should have organized some form of school system in the

entire metropolitan area of Indianapolis, but failing that,

in the entire Marion County area, which would have placed

a determined number of black students in certain undefined

and unknown school in the municipal City of Indianapolis.

Failing to do that, anticipatorily, would then mean an

act of segregation on the part of the State, which would

allow the District Court to enter its ‘‘remedy’’ orders,

thereby complying in the District Court’s judgment and

that of one member of the Court of Appeals, with this

Court’s requirement in Milliken, supra. As the District

Court stated, 419 F.Supp., at 183:

. When the General Assembly expressly elimi-

nated the schools from consideration under Uni-Gov,

it signaled its lack of concern with the whole prob-

lem and this inhibited desegregation with [in] I. P. S.

18

But that is not causality, and it is not consistent with nor

does it even recognize the law as established by this Court

in Milliken v. Bradley, supra, Pasadena City Board of

Education v. Spangler, supra, and Dayton Board of Educa-

tion v. Brinkman, 433 U.S. 406 (1977).

REASONS FOR ALLOWANCE OF

THE WRIT

This Court should exercise its power

of supervision over the Seventh Circuit

which has, in effect, ignored the order

of remand from this Court.

A.

Introduction

On January 25, 1977, this Court granted the petition for

writ of certiorari to the Seventh Circuit which was filed by

these same Petitioners herein, vacated that Court’s Judg-

ment of July 16, 1976, and remanded the case for further

consideration in light of Village of Arlington Heights v.

Metropolitan Housing Development Corp., supra., and

Washington v. Davis, supra.

Those two cases are not related to this case factually.

Their relationship is found in this Court’s holding that an

intentional act to discriminate or segregate, with such act

having a causal effect, is required on the part of a state

defendant before a federal court’s equity power may be

invoked.

The Seventh Circuit ignored that remand order, and, in

a three-opinion, thirty-one page document, remanded the

case to the District Court for further findings of fact. Pe-

titioners would submit, based upon the extensive record in

this case, that the action of the Seventh Circuit is com-

28 unjustified, and is simply delaying the desegregation

of I. P. S.

19

B.

LP. S. should be desegregated within its own

boundaries

The final plan for desegregation of LP. S. is long overdue.

The United States brought suit against LP. S. in 1968, and

the District Court found I.P.S. guilty of de jure segrega-

tion in 1971. U.S. v. Board of School Commissioners, 332

F.Supp. 655 (S.D. Ind., 1971). That decision was affirmed

by the Seventh Circuit, 474 F.2d 81 (7th Cir., 1973), and

certiorari was denied, 407 U.S. 920 (1973). Thus, the stu-

dents of LP.S., who have been denied their constitutional

rights, have been waiting since 1973 to have those rights

fully redressed. Obviously, an entire high school class has

come and gone.

The Petitioners would submit that the seemingly inter-

minable litigation which has been predicated on the theories

of the intervening plaintiffs and the District Court can

no longer be continued because those theories have been

repeatedly struck down by this Court. See Milliken v. Brad-

ley, 418 U.S. 717 (1974) and Austin Independent School

District v. United States, 97 S.Ct. 517 (1976).

The Solicitor General has acknowledged the futility of

those theories, stating on page 11 of his brief to this Court

in No. 76-515:

The United States commenced this suit to chal-

lenge racial discrimination by and within LP.S. It

prevailed on its claims. Full relief has been delayed

for several years, however, while the district court

has considered an expanded, inter-district remedy

that the United States did not seek. In our view

this delay has been fruitless, because the evidence

has not demonstrated any purposeful inter-district

racial discrimination of the sort that would justify

an inter-district mandatory reassignment of stu-

dents. (Emphasis supplied).

In Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971), this Court clearly established the power

— ——U—U—ñ́ — —

— —

— — — — - — —

of a district court in a school desegregation case, stating at

page 16:

In seeking to define even in broad and general

terms how far this remedial power extends it is im-

portant to remember that judicial powers may be

exercised only on the basis of a constitutional viola-

tion.

- As with any equity case, the nature of the io-

lation determines the scope of the remedy .. . (Em-

phasis supplied).

That principle was emphatically reaffirmed in Milliken v.

Bradley, supra, wherein this Court stated, at page 744.

The controlling principle consistently expounded

in our holdings is that the scope of the remedy is

determined by the nature and extent of the constitu-

tional violation .. Before the boundaries of sepa-

rate and autonomous school districts may be set

aside by consolidating the separate units for reme-

dial purposes or by imposing a crossdistrict remedy,

it must first be shown that there has been a constitu-

tional violation within one district that produces a

significant segregative effect in another district.

Specifically, it must be shown that racially discrimi-

natory acts of the state or local school districts, or of

a single school district have been a substantial cause

of interdistrict segregation ... (Emphasis supplied).

In Washington v. Davis, supra, this Court stated, at

page 2048:

. . . The school desegregation cases have also ad-

hered to the basic equal protection principle that the

invidious quality of a law claimed to be racially dis-

criminatory must ultimately be traced to a racially

discriminatory purpose. That there are both pre-

dominantly black and predominantly white schools

in a community is not alone violative of the Equal

Protection Clause. The essential element of de

jure segregation is ‘a current condition of segrega-

tion resulting from intentional state action. . the

21

differentiating factor between de jure segregation

and so-called de-facto segregation . .. is purpose or

intent to segregate.’ Keyes v. School District No. 1,

413 U.S. 189, 205, 208 (Emphasis supplied).

Nevertheless, The Seventh Circuit on remand from this

Court stated, at page 19 of the slip opinion, A-18:

In Washington v. Davis, 426 U.S. 229 (1976), the

Supreme Court held that state action is not racially

discriminatory within the meaning of the Equal Pro-

tection Clause unless the action was taken for the

purpose of discriminating between the races. If

Davis did not change the law, it at least changed

the way lower courts had consistently interpreted

it. Because that case was decided after the instant

case was last before the district court, neither the

Government nor the intervening plaintiffs offered

any evidence showing a racially discriminatory pur-

pose. Statements in earlier opinions in this case sug-

gesting that there was no showing of discriminatory

purpose should be disregarded in view of the fact

that such showing was not deemed relevant at the

time. Accordingly, we must remand this case so

that the district court may make findings on the

question of intent consistent with Davis and Arling-

ton Heights. (Emphasis supplied.)

In the first trial of this matter the District Court found

that I. P. S. was guilty of de jure segregation. 332 F.Supp.

at 658. The District Court reaffirmed that finding in the

second trial, but expressly stated that none of the other

separate and independent school districts involved therein

was guilty of any de jure segregation. 368 F.Supp. 1191,

at 1203. Thus, there was a violation in one school district,

but no interdistrict violations.

That finding of no de jure segregation has never been

challenged on appeal and is the controlling finding in this

case.

Although there has been an attempt to justify an inter-

district remedy through ‘‘state action,“ the only findings

i

‘ 22

against the State Defendants were that ‘‘appropriate agen-

cits’’ of the State Board of Education and the Superin-

tendent of Public Instruction approved three school sites

within LP.S., which approval constituted acts of de jure

segregation, and that:

. . . Officials of the State charged with oversight of

the common schools have done almost literally noth-

ing, and certainly next to nothing, to furnish leader-

ship, guidance, and direction in this critical area. . .

368 F. Supp., at 1203.

Thus, the State Superintendent and Board of Education

failed to ‘‘act affirmatively in support of the law [which]

was an omission tending to inhibit desegregation.’’ 368

F.Supp. at 1203.

In regard to school site approvals, this Court said in

Milliken v. Bradley, supra, 418 U.S., at 751, that:

.. . evidence was specifically limited to proof that

school site acquisition and school construction with-

in the city of Detroit produced de jure segrega-

tion within the city itself. Id., at 235-238. Thus,

there was no evidence suggesting that the State’s

activities with respect to either school construction

or site acquisition within Detroit affected the racial

compositions of the school population outside Detroit

or, conversely, that the State’s school construction

and site acquisition activities within the outlying

districts affected the racial composition of the

schools within Detroit.

Likewise, there is no finding in this case that school site

approvals within I.P.S. affected the racial composition of

the added defendant schools. Thus, on remand to the

District Court after Milliken v. Bradley, supra., the only

valid finding remaining against any State Defendant was

that:

. . . the state officials have, by various acts and

omissions, promoted segregation and inhibited de-

segregation within I.P.S., so that the state, as the

agency ultimately charged under Indiana law with

the operation of public schools, has an affirmative:

duty to assist the IL P. S. Board in desegregating

I. P. S. within its boundaries (see Part IV hereof).

503 F. 2d, at 80.

Those various acts and omissions’’ have never been listed

in any manner, and no intent to promote segregation or to

inhibit desegregation has ever been found.

In the nearly ten years of litigation in this case, with

three extensive trials, thousands of pages of testimony,

hundreds of exhibits, and scores of witnesses, there has

never been one witness who has ever testified that he or

she or his children were ever excluded from any school in

any school system other than I:P.S. because of the race of

that person.

The task here is not to produce a result in the name of a

remedy merely because that result may appear desirable

to some persons in the community, or to a federal district

court. ‘‘That there are both predominantly black and pre-

dominantly white schools in a community is not alone viola-

tive of the Equal Protection Clause. Washington v. Davis

supra, at 2048.

‘‘(T]he remedy is necessarily designed, as all remedies

are, to restore the victims of discriminatory conduct to the

position they would have occupied in the absence of such

conduct.’’ Milliken v. Bradley, supra, 418 U.S. at 746. In

that regard, Congress has provided in the Equal Educa-

tional Opportunities Act of 1974, 88 Stat. 516, 20 U.S.C.

§ 1712 that:

——

— — ———

24

In formulating a remedy for a denial of equal edu-

cational opportunity or a denial of the equal protec-

tion of the laws, a court .. shall seek or impose only

such remedies as are essential to correct particular

denials of equal educational opportunities or equal

protection of the laws. (Emphasis supplied).

The District Court’s remedial plan in this case cannot

survive under the principles of the controlling cases and

the Acts of Congress. It is unlikely to the point of impos-

sibility that, but for any racial discrimination that might

have had an interdistrict effect, every school district in

Marion County would have had approximately 15 percent

black students. There is nothing in the entire record of

this case which indicates that the fixing of the school bound-

aries of I. P. S. or the failure to expand them, or the site se-

lection of public housing, prevented the almost completely

uniform distribution of students which the District Court’s

order required, and which the Seventh Circuit affirmed.

Likewise, the errors in the Seventh Circuit’s 1976 opin-

ion concerning low income housing by the Housing Author-

ity for the City of Indianapolis (hereafter H. A. C. I.), 541

F. 2d 1211, at 1222-23, are of the same nature as discussed

above. The majority opinion accepted the District Court’s

determination that the effect of locating ten public housing

projects in I.P.S. was to increase black school enrollment in

I. P. S. because of a 98 percent black occupancy in that pub-

lic housing.

But even assuming, arguendo, that that was the effect of

the housing site selection, and assuming that the site selec-

tion increased the number of black students in LP. S., it

does not show racial discrimination in all school systems

in Marion County. The majority in that Court and the Dis-

trict Court merely used this school case for a collateral at-

tack on what was assumed to be racial discrimination in

public housing, an assumption that was made because a sub-

stantial number of persons living in those housing projects

are black.

It was for that reason that this Court directed the Sev-

enth Circuit’s attention to the holding in Arlington Heights

v. Metropolitan Housing Development Corp., supra, where-

in this Court stated, 429 U.S., at page 264:

Our decision last Term in Washington v. Davis,

426 U.S. 229 (1976), made it clear that official action

will not be held unconstitutional solely because it re-

sults in a racially disproportionate impact. ‘‘ Dispro-

portionate impact is not irrelevant, but it is not the

sole touchstone of an invidious racial discrimina-

tion.“ Id. at 242. Proof of a racially discriminatory

intent or purpose is required to show a violation of

the Equal Protection Clause. . (Emphasis sup-

plied).

See also Hills v. Gautreaux, 425 U.S. 284 (1976).

The Uni-Gov and public housing holdings in the Seventh

Cireuit's majority opinion, and in the District Court, were

not founded on a principle of constitutional law, but on the

proposition that a State has an affirmative duty to eliminate

racially disproportionate populations in schools, public

housing, or other areas, regardless of whether the State

or state action caused and intended that racial concentra-

tion. But in Spencer v. Kugler, 326 F.Supp. 1235 (D.C.

N. J., 1971), aff’d. 404 U.S. 1027 (1972), this Court summa-

rily affirmed the district court’s holding that even extreme

racial imbalance, without more, does not authorize a court

to revise neutrally established school district lines, and

thus, the State would have no legal duty to do so.

— —— — — — —— ũ Uk „%

C.

Conclusion

All issues of fact and law have been thoroughly tried

and briefed through three trials and their subsequent ap-

peals. School segregation has been found only in one school

district, i.e., I. P. S., and all other school districts have been

expressly found not to be guilty of any school segregation.

The Uni-Gov statute which was alleged in the Amended

Complaint to have been responsible for segregation within

I.P.S. has been found to be a racially neutral piece of leg-

islation.

Therefore, there is no need for any further proceedings

or any further attempt to find facts that do not exist. The

issue in this case is, and always has been, the desegregation

of the Indianapolis Public School system.

In Swann, supra, this Court stated at page 22:

The constant theme and thrust of every holding

from Brown I to date is that state-enforced separa-

tion of races in public schools is discrimination that

violates the Equal Protection Clause. The remedy

commanded was to dismantle dual school systems.

We are concerned in these cases with the elimina-

tion of the discrimination inherent in the dual school

systems, not with myriad factors of human existence

which can cause discrimination in a multitude of

ways on racial, religious, or ethnic grounds. The tar-

get of the cases from Brown I to the present was the

dual school system. The elimination of racial dis-

crimination in public schools is a large task and one

that should not be retarded by efforts to achieve

broader purposes lying beyond the jurisdiction of

school authorities. One vehicle can carry only a lim-

ited amount of baggage. It would not serve the im-

portant obiective of Brown I to seek to use school

desegregation cases for purposes beyond their scope.

. . . (Emphasis supplied.)

27

Since the District Court and the Seventh Circuit have

been unable to find any interdistrict segregation and no con-

tributing state action to the segregation of I.P.S. in almost

ten years of litigation, and since the Seventh Circuit has

ignored the order of remand from this Court by ordering

the case remanded to the District Court for further find-

ings of fact, this Court should exercise its power of super-

vision over the Seventh Circuit, and issue the writ for

which these Petitioners pray.

Respectfully submitted,

THEODORE L. SENDAK

Attorney General of Indiana

DONALD P. BOGARD

Chief Counsel

WILLIAM F. HARVEY

Special Counsel

Office of the Attorney General

219 State House

Indianapolis, Indiana 46204

Telephone: (317) 633-6249

APPENDIX

— ——3—gk—— —

—

1

INDEX TO APPENDIX

Opinion of the United States Court of Appeals for

the Seventh Circuit, Nos. 75-1730 through 75-1737,

75-1765, 75-1936, 75-1965 and 75-2007, dated Feb-

. —— ——

Opinion of the United States Court of Appeals for

the Seventh Circuit, Nos. 75-1730 through 75-1737,

75-1765, 75-1936, 75-1965 and 75-2007, dated July

8 fF ft ff Re See

Memorandum of Decision of the United States Dis-

trict Court for the Southern District of Indiana,

Indianapolis Division, No. IP. 68-C-225, dated

August 1, 1975 (419 F. Supp. 180)...

IN THE

United States Court of Appeals

FOR THE SEVENTH CIRCUIT

Nos. 75-1730 through 75-1737, 75-1765, 75-1936, 75-1965,

and 75-2007

Unrrep States or AMERICA,

Plaintiff-Appellee,

and

Donny Brurett Buck.ey, et al.,

Intervening Plaintiff s-A ppellees,

V.

Boarp or Scnoot Commissioners or Tue City or Inpt-

ANAPOLIS, IN DIANA, et al.,

Defendants-A ppellants.

On Remand from the Supreme Court

of the United States.

Fesruary 14, 1978

Before Famcump, Chief Judge, Swycert and Tone,

Circuit Judges.

Swycert, Circuit Judge. Our decision today is a con-

tinuation of protracted litigation which began in 1968 over

whether and to what extent the public schools of Indi-

anapolis must be desegregated. In our most recent opinion,

we affirmed the district court’s order calling for the busing

——

A-2

of black students from within the Indianapolis Public

School District (‘‘IPS’’) to schools which are outside

IPS but within Marion County (‘‘Uni-Gov’’). United

States v. Board of School Commissioners, 541 F.2d 1211

(7th Cir. 1976). The Supreme Court vacated our judgment

and remanded the case to this court for further considera-

tion in light of Village of Arlington Heights v. Metropoli-

tan Housing Development Corp., 429 U.S. 252 (1977), and

Washington v. Davis, 426 U.S. 229 (1976), which require

proof of racially discriminatory intent or purpose to show

a violation of the Equal Protection Clause. See 429 U.S.

1068 (1977). For the reasons and in the areas set forth

below, we now remand this case to the district court for

further findings of fact.

I

Because of the age of this suit, its sheer size, the number

of parties which have intervened or have been added during

the course of the proceedings, and the fact that this case

has made several trips through the appellate process, we

think it would help to summarize the present posture of

this case, namely, to identify those issues which have been

settled and those which remain unresolved. Before pro-

ceeding to do so, however, it is important to understand

the three geographical areas which have at some point

been the subject of this litigation. As illustrated by the

diagram below, those three areas include: (1) IPS, whose

boundaries are coterminous with the City of Indianapolis

(before Uni-Gov), (2) suburban school districts within

Marion County and, since the enactment of the Uni-Gov

Act in 1969, within the boundaries of the City of Indianap-

The history of this litigation was deseribed in our most recent opinion.

See 541 F.2d 1211, 1212-15 (7th Cir. 1976), vacated and remanded,

429 U.S. 1068 (1977).

A-3

olis (after Uni-Gov),? and (3) school districts which are

outside of and adjacent to Marion County.

Kenticon

County

Delevere

| 1 =

Bonne 7 ’

County Ceogle Cley Fall Creek 4

>

—— 20 —.

a

z

°

a

Guilford

(Piatnftelé

tee 6

: Freese

Krown Madiron tthite Aiver|~ “x. *

(or tie) (Conter 2 Clark

Crove) | Pleasent

Shelby

County f

93 Johnscn County

sore 114 aes |

2 Under the Uni-Gov Act, Ind. Code §§ 18-4-1-1 et seq., the boundaries

of the City of Indianapolis were expanded to and became coextensive

with the boundaries of Marion County. The new consolidated city is now

called the City of Indianapolis. Ind. Code § 18-4-1-4. This new city in.

eludes all territory within Marion County except for the cities of

Beech Grove, Lawrence, and Speedway (“excluded cities”) which are

permitted to carry on as separate municipal corporations. Ind. Code

§ 18-4-1-2. Cities in these excluded territories may still vote in mayoral

and eity-eounty council elections, however, and they receive certain

benefits from the consolidated City of Indianapolis. See Dortch v. Lugar,

225 Ind. 545, 266 N.E.2d 25, 35-37 (1971).

A-4

On August 18, 1971, the district court found that the

Indianapolis School Board was deliberately operating a

de jure dual system on May 17, 1954 (date of Brown I),

and had not changed its policies since that year in order

to eliminate that de jure segregation. United States v.

Board of School Commissioners, 332 F. Supp. 655 (S. D.

Ind. 1971). In affirming, this court said, IIIt is clear that

the district court found a purposeful pattern of racial

discrimination based on the aggregate of many decisions

of the Board and its agents.’’ 474 F.2d 81, 84 (7th Cir.),

cert. denied, 413 U.S. 920 (1973). After reviewing the dis-

trict court’s findings regarding the gerrymandering of

school attendance zones, the segregation of faculty, the

use of optional attendance zones among the schools, and

the pattern of school construction and placement, we held:

‘‘(T ]he evidence of both segregatory intent and causation

is substantial enough to support the district court’s find-

ings.’’ Id. at 85.

On remand, the district court determined that state

officials are ultimately charged under Indiana law with the

responsibility of operating the public schools. The court

further determined that these officials had caused and

promoted segregation within IPS, so that the State had

an affirmative duty to assist the IPS Board in desegre-

gating its schools. 368 F. Supp. 1191 (S.D. Ind. 1973).

We affirmed this holding on appeal. 503 F.2d 68, 80 (7th

Cir. 1974), cert. denied, 421 U.S. 929 (1975). These rulings,

finding both the Board all the State guilty of de jure

segregation within IPS, now constitute the law of this

case.“ Accordingly, the parties and the courts are pre-

8 The doctrine of the law of the case has been explained by the Supreme

Court as follows:

When matters are decided by an appellate court, its rulings, unless

reversed by it or a superior court, bind the lower court. Thus a cause

proceeds to a final determination. While power rests in a federal court

that passes an order or decision to change its position on subsequent

A-5

cluded from reexamining them. Desegregation remedies

within the confines of IPS are therefore wholly appropriate.

The district court when fashioning a remedy was under-

standably concerned with the problem of white flight.“

The court was opposed to a desegregation plan limited

solely to IPS because evidence showed that such a plan

would accelerate the white exodus with the resultant effect

of resegregating the Indianapolis schools. The only feasible

permanent desegregation plan, in the district court’s view,

was to order an interdistrict remedy which encompassed

the entire metropolitan area, including the suburban dis-

tricts within Marion County and the adjacent districts

outside of the county (areas 2 and 3 in the diagram above).

368 F. Supp. 1191 (S.D. Ind. 1973).

This court, under Milliken v. Bradley, 418 U.S. 717

(1974), reversed the district court’s order pertaining to

the interdistrict remedy as to those school districts outside

Marion County (area 3). 503 F.2d 68, 86 (7th Cir. 1974),

cert. denied, 421 U.S. 929 (1975). This holding, as the one

inculpating the State and the school board within IPS, is

subject to the law of the case principle and therefore is

closed to further examination.

The only issue before us, then, is whether the district

court in the exercise of its equity jurisdiction may impose

an interdistrict remedy which includes the transfer of

students from IPS to the suburban districts within Marion

County. Resolution of this issue necessarily presupposes

an affirmative answer to each of the following subsumed

questions: (1) whether at least one of the predicates for

metropolitan relief as enunciated in Milliken v. Bradley,

is present, and (2) whether the relevant acts or omissions

review in the same cause, orderly judicial action, except in unusual

circumstances, requires it to refuse to permit the relitigation of matters

or issues previously determined on a former review. Insurance Group

Committee v. Denver & Rio Grande R.R., 329 U.S. 607, 612 (1947).

- ———4—ẽ—ẽ̃ —— ——ẽv — ey

*

A6

of state or local officials were motivated, at least in part,

by a racially discriminatory purpose or intent as articu-

lated in Washington v. Davis and Arlington Heights.

As will become more apparent below, resolution of these

two preliminary questions requires remanding this case

to the district court. On remand, the task of the district

court is to make further findings of fact from evidence

already in the record or, if necessary, as supplemented by

additional evidence.

II

Any decision as to whether interdistrict school desegre-

gation remedies may be imposed must begin with a con-

sideration of the principles enunciated by the Supreme

Court in Milliken v. Bradley, 418 U.S. 717 (1974). The

Court in reversing the proposed interdistrict remedy in

that case did not foreclose all metropolitan desegregation

plans. As said in Hills v. Gautreaux, 425 U.S. 284, 298

(1976):

Nothing in the Milliken decision suggest a per se

rule that federal courts lack authority to order

parties found to have violated the Constitution to

undertake remedial efforts beyond the municipal

boundaries of the city where the violation oc-

curred.

The underlying principle controlling the question of

whether an interdistrict remedy is appropriate is that

„the scope of the remedy is determined by the nature

and extent of the constitutional violation.“ 418 U.S. at

744. Interdistrict relief was found impermissible in

Milliken because there was no evidence that either the

State or any of the suburban school districts had engaged

in unconstitutional activity which had a cross-district

effect. Id. at 748. The interdistrict decree was therefore

impermissible because it was not commensurate with the

A-7

constitutional violation to be repaired. See Gautreaux, 425

U.S. at 294.

Before a court may impose an interdistrict remedy, a

constitutional violation, i.e., intentional state action, must.

exist which has significant segregative interdistrict effects.‘

Milliken, 418 U.S. at 744-45; Gautreaux, 425 U.S. at 294-96.

The Court in Milliken gave several examples of violations

having an interdistrict effect, including actual district line

crossings by students, deliberate drawing of district lines

on the basis of race, and state actions that affect residential

patterns by influencing the location of families with school

children. 418 U.S. at 745; 418 U.S. at 755 (Stewart, J.

concurring).

The district court in the instant case found two viola-

tions upon which it based the proposed interdistrict reme-

dies. See 419 F. Supp. 180 (S.D. Ind. 1975). The first was

the failure of the State to extend the boundaries of IPS

when the municipal government of Indianapolis and the

other governmental units in Marion County were repla2ed

by a consolidated county-wide government called Uni-

Gov.“ The second violation was the segregative housing

practices by the State and its agents, such as the confine-

ment of all public housing projects (in which 98% of the

residents were black) to areas within the boundaries of

the ‘‘old’’ City of Indianapolis. We must address each

of these areas to determine whether they can form the

basis for imposing interdistrict remedies under Milliken.

A

Whether the reestablishment of boundaries of the City

of Indianapolis without the like reestablishment of IPS

* The place where the constitutional violation occurred is irrelevant for

imposing interdistrict relief. It makes no difference whether the violation

is inter- or intra-district. The crucial question is rather whether the

violation caused or created a eross-distriet or interdistriet effect.

A-8

boundaries can form a basis for imposition of an inter-

district remedy within the ‘‘enlarged’’ City of Indianapolis

requires a finding of intentional state action which causes

a significant segregative interdistrict effect. To under-

stand whether the Uni-Gov Act and its companion legis-

lation meets the standards of Milliken requires a brief

review of the history of school district boundaries in

Indiana.

At Indiana common law, the boundaries of a school dis-

trict and of a civil city were coterminous; when a city

expanded its corporate limits, the school boundaries ex-

panded correspondingly.’ This rule was codified as to IPS

by a 1931 Act which provided that the boundaries of IPS

were to be coterminous with those of the City.* In 1959

the Indiana General Assembly enacted the School Reor-

ganization Act’ which had the effect or reducing the

number of school districts outside Marion County from

990 to 305. 541 F.2d at 1217. The reorganized districts,

however, were not tied to the boundaries of civil govern-

ment and indeed some of the consolidated school districts

even crossed county lines.“ Once the school districts were

5 See cases cited in 332 F. Supp. 655, 675 n. 86 (S.D. Ind. 1971).

® Acts 1931, ch. 94, § 1, provided in relevant part:

In each civil city of this state having . . . more than three hundred

thousand inhabitants there shall be a common school corporation here-

inafter called the “school city” whose duties shall be co-extensive with

the corporate boundaries of such civil city.

Although this Act was amended in 1955 in order to increase the size of

the IPS Board, the provision concerning the boundaries of IPS remained

unchanged. Acts 1955, ch. 123, § 1.

On March 15, 1969, two days after the Uni-Gov Act was signed into

law, section 1 of the 1931 Act was again amended, this time deleting

all reference to the correspondence of boundaries of IPS and Indianapolis.

Acts 1969, ch. 283, §1; Ind. Code § 20-3-11-1.

Although the 1931 statute applied only to the City of Indianapolis, the

boundaries of school districts and municipalities were also coterminous

elsewhere in Indiana. See 541 F.2d at 1217.

7 Acts 1959, ch. 202, § 1; Ind. Code §§ 20-4-1-1 et seq.

Some seventy percent of the reorganized districts were not coterminous

with other units of civil government. 541 F.2d at 1217.

A-9

consolidated, their boundaries were frozen and were no

longer tied to civil annexation. For a variety of reasons,

all attempts failed to consolidate IPS with any of the other

ten suburban school districts within Marion County.“

In 1961 special legislation was enacted to give the Marion

County schools the flexibility lost by the 1959 Reorganiza-

tion Act.“ Under this legislation extension of the bound-

aries of a civil city automatically extended the correspond-

ing school district boundaries." In summary, with the

exception of the two year period 1959-61, the expressed

policy of the State of Indiana until 1969 was that IPS

would expand as the City of Indianapolis expanded.

Against this backdrop, two pieces of legislation were

enacted by the Indiana General Assembly in 1969. Most

notable was the Uni-Gov Act which transformed the ‘‘old’’

City of Indianapolis and the rest of Marion County into a

® See 541 F.2d at 1217-18. See also 368 F. Supp. at 1203-04.

10 Acts 1961, ch. 186; as amended, Ind. Code § 20-3-14.

11 Section 9 of the 1961 statute, which applied only to the City of

Indianapolis, provided in pertinent part :

(a) Whenever the boundaries of any civil city are extended by a

civil annexation . . . the boundaries of the school city which has juris-

diction over the area of such civil city or the major portion thereof

shall be correspondingly extended by virtue of such civil annexation.

The expansion of the school boundaries under this provision was automatic

unless the school city and the losing school corporation mutually agreed

against expansion of school corporations. Section 9(¢). In addition,

the school corporation whose territory was to be taken could oppose the

civil annexation in a remonstrance suit. Section 9(b). Under this provi-

sion, however, a remonstrance to both school and civil annexation was

necessary.

Chapter 186 of the Acts of 1961 also provided for two means wherein

IPS could expand independently of the city. Section 3 permitted expan-

sion if the IPS Board and the losing school corporation mutually agreed

that IPS could expand. Section 4 gave IPS the unilateral power of

annexation subject to the right of the losing school district to oppose by

remonstrance on educational grounds only. Ind. Code §§ 20-3-14-3 to

20-3-14-6. No significant action was taken by IPS under these two pro-

visions because they proved to be ineffective.

A-10

consolidated government.!“ Uni-Gov succeeded to most of

the functions of the city and county governments and of

numerous special service districts.”

Under prevailing Indiana law prior to 1969, the expan-

sion of the City of Indianapolis to the Marion County lines

carried out by the Uni-Gov Act would have automatically

caused the concomitant expansion of IPS. But sixteen

days before final passage of the Act, the General Assembly

repealed section 9 of the 1961 Act.“ This repeal for the

first time separated the boundaries of IPS and the City of

Indianapolis. This action had the effect of preventing the

expansion of IPS boundaries. But for the repeal of the

1961 Act, IPS would now be coextensive with Marion

County and this case would have a far different cast.“

While we cannot say that this was done with a discrimina-

tory purpose of intent because the district court has never

12 This Act was officially entitled the “Consolidated First-Class Cities

and Counties Act.” Acts 1969, ch. 173, § 101; Ind. Code §§ 18-4-1-1 et seq.

See n. 2, supra.

18 Schools were specifically excluded from Uni-Gov as were some other

governmental units, including inter alia, airport authority, health and

hospital corporations, county department of welfare, housing authority,

etc. Ind. Code §18-4-3-14. Most of these units, including the schools,

were previously independent having a corporate and legal identity separate

from the City of Indianapolis. Many of these units had been reorganized

freeze the boundaries of IPS; the Act did not even mention boundaries.

The sole effect of Uni-Gov on the schools was to maintain their prior

i t status.

14 Acts 1969, ch. 52, § 2.

15 Four pieces of legislation were adopted by the 96th Session of the

General Assembly in 1969 which affected IPS and its boundaries. These

statutes were all enacted within eighteen days of each other. On February

25, the General Assembly repealed section 9 of the 1961 Act which had

i the automatic expansion of IPS boundaries. Acts 1969; ch. 52

$2; Ind. Code § 20-3-14-11. On the same day, the General Assembly

A-1¹

addressed the question and for that reason the case must be

remanded, see Part III isfra, it is clear that this repeal and

the other legislation enacted satisfied any formal tes for

state action.

The situation here thus differs from Milliken in at least

one important aspect. In Milliken the school boundaries

which limited the area into which a remedy could extend

had apparently developed without consideration of race.

At least no one appears to have contended that the bound-

aries were the product of racially invidious decisions of

the State. In the instant case the legislature has, while this

litigation was pending, chosen to enlarge the boundary of

the City of Indianapolis for many municipal purposes while

retaining the old IPS boundary for school purposes.“ As

was shown, this separation of the Indianapolis city bound-

ary from the school district boundary was contrary to

the State’s traditional policy.

added section 9(a) to the 1961 Act. This amendment effectively nullified

the 1931 Act which had defined the boundaries of IPS as being cotermi-

nous with those of the City of Indianapolis. Acts 1969, ch. 52, §3; Ind.

Code § 20-3-14-9,

On March 13, 1969, the Uni-Gov Act was signed into law. Acts 1969,

ch. 173. Seetion 314 of that chapter provided in pertinent part:

All other municipal corporations . . shall not be affected by this Act

. Without limiting the generality of following enumeration, such

municipal corporations, . . shall include . . . any school corporation,

all or part of the territory of which is in the Consolidated City or

County. Ind. Code § 18-4-3-14.

Two days later, on March 15, the General Assembly amended the 1931

Act, eliminating the provision that IPS boundaries must be coextensive

with those of the City of Indianapolis. Acts 1969, ch. 283, §1; Ind.

Code § 20-3-11-1.

16 This is not therefore a case, as in Milliken, where the state merely

failed to redraw school district lines which may have been neutrally

drawn initially. Rather, this case is more similar to those where the

state actually redraws the district lines. See, ¢.g., Wright v. Council of

City of Emporia, 407 U.S. 451 (1972); United States v. Scotland Neck

Board of Education, 407 U.S. 484 (1972). Here the 1969 repeal of the

1961 Aet prevented and froze what would have been a natural expan-

sion of the IPS boundaries when the City of Indianapolis expanded to

the county lines.

|

A-12

State action being present, our query next turns to

whether that action caused significant segregative district-

wide effects. In what way did the State’s choice of re-

taining the old IPS boundary in lieu of expanding it with

the City boundary have a segregative impact? It did so,

we think, in curtailing the power of IPS to remedy its

own violations. Had IPS expanded with the City, it could

have accomplished desegregation by spreading its black

schoo] population throughout a larger area, much as the

district court ordered. If IPS were recalcitrant about cor-

recting its own violation, the district court could have more

readily ordered such dispersal of the black school popula-

tion without curtailment of district lines. This very law-

suit, challenging racial segregation in Indianapolis, was

already pending when the legislative choice was made to

confine IPS to its old boundary rather than make it coter-

minous with the City. In short, the combined 1969 legisla-

tion had the effect of ensuring that the effort to desegre-

gate IPS (which had been initiated a year earlier by the

Department of Justice) would not extend to the white

suburban areas.

In light of the above, we hold that the passage of Uni-

Gov and its companion legislation meets the requirements

of Milliken and therefore can be used as a basis for impos-

ing an interdistrict remedy if the district court finds that

the General Assembly, in enacting the series of legislation,

acted with a discriminatory intent or purpose.

B

It is generally agreed that racial residential patterns

are reflected in the student composition of an area’s public

schools and that racial segregation in public schools and

racial segregation in housing are integrally interrelated.”

* If a school system follows a neighborhood attendance policy, as does

IPS, the racial composition of a residential area directly affects the

racial composition of the schools.

A-13

Metropolitan Indianapolis is no exception to this phenome-

non. In 1970, 98.5% of all black people in Marion County

lived in the ‘‘old’’ City of Indianapolis, the area served by

IPS. 332 F. Supp. at 663. Thus we find that blacks are con-

centrated in the ‘‘old’’ city while the suburbs are almost en-

tirely populated by whites. This racial division in residen-

tial patterns is reflected in the public schools of metropoli-

tan Indianapolis. During the 1968-69 academic year, 96.8%

of all black students within Marion County attended schools

served by IPS. Thus IPS was at the time this suit was

PERCENTAGE OF BLACK STUDENTS IN

MARION COUNTY SCHOOL DISTRICTS

— — - — ä ͤ—ꝙL

School Distriet 1968-69 1976-77 net

| &

8

+

N

lellL&

Slel |

—

A

4 en! | | oof

N x

Sere

ro 2

++$+4++ +

* Less than one percent. „*

filed and continued to be“ racially segregated from the

outlying school districts.”

18The overall black student population in Marion County has in-

creased from 21% in 1968-69 to 26% in 1976-77, a net increase of five

pereent. As the following table shows, however, this increase has not

been uniform among the school districts.

The evidence thus shows IPS is becoming increasingly black (45%

in 1976-77 v. 34% in 1968-69), while the suburbs remain overwhelmingly

white. In 1976-77 the percentage of black students in seven of the ten

suburban Marion County school districts was still less than two percent.

10 IPS is only one of eleven school districts in Marion County, the

area covered by Uni-Gov. Although IPS serviced fifty-two percent of

all Marion County publie school students during the 1976-77 academic

year, it serviced ninety percent of all the black students. The following

;

1

J

oa

*

A-14

Ss

District Percent of Total Percent of Total

— Student Enrollment Black Enrollment

in County in County

IPS 52% 90%

Beech Grove 2 *

Decatur 3 oe

F h li 2 —

Lawrence 6 1

P 8 1

Pike. 3 2

Speedway 1 *

Warren 7 ro

Washington 9 6

Wayne 8 1

101%** 100%

(156,812) (40,695)

* Less than one-half of one percent.

„The total of 101% is due to rounding off to the nearest whole number

for purposes of readability.

Undoubtedly there are many contributing causes for

racial segregation. But however complex the problem, it

is clear that if residential segregation results from current

or past segregative housing practices, there is a causal

relation between those practices and the segregated

schools.” Therefore, if the state has participated in or

contributed to these segregative housing practices either

directly (e.g., selective location of public housing) or in-

directly (e.g., involvement in discriminatory practices in

the private housing market), it can be said that the state

caused, at least in part, the segregation in schools.

That segregative housing practices can be the basis

of an interdistrict school desegregation remedy was sug-

table shows the present racial disparity between IPS and the outlying

districts.

20 The converse is also true: the racial composition of a school can

also affect residential patterns. This is partierJarly so for couples with

young families, one of the most residentially mobile groups in society.

Although choice of location largely depends on available housing and

economies, it also depends to a degree on the local schools. The influence

A-15

gested by Mr. Justice Stewart’s concurrence in Milliken.”

Justice Stewart noted that if school segregation flows from

a ‘‘purposeful, racially discriminatory use of state housing

laws, then a decree calling for the transfer of pupils across.

district lines might well be appropriate.’’ 418 U.S. at 755.

In Evans v. Buchanan, 393 F. Supp. 428 (D. Del. 1975),

the district court justified submission of a metropolitan

remedy for school desegregation in part on governmental

involvement in fostering segregated housing, which in turn

caused segregation in the schools. The three-judge court

in Evans found the development of ‘‘identifiable black

schools mirrored population shifts,’’ and that those popula-

tion shifts resulted in part from ‘‘assistance, encourage-

ment, and authorization by governmental policies. Id.

at 434. The Supreme Court summarily affirmed this deci-

sion, 423 U.S. 963 (1975), and the Third Circuit subse-

quently affirmed the actual imposition of an interdistrict

of school patterns was noted by the Supreme Court in Swann v. Board

of Education, 402 U.S. 1, 20-21 (1971):

People gravitate toward school facilities, just as schools are located

in response to the needs of people. The location of schools may thus

influence the patterns of residential development of a metropolitan

area and have important impact on composition of inner-city neigh-

borhoods.

It [location and closing of schools] may well promote segregated

residential patterns which, when combined with “neighborhood zoning,”

further lock the school system into the mold of separation of the races.

Upon a proper showing a district court may consider this in fashioning

a remedy.

See also Keys v. School District No. 1, 413 U.S. 189, 202-03 (1973).

Schools can also affect people other than families with school-aged

children. Realtors, homeseekers, and prospective tenants often use the

local schools (and their racial composition) as a key indicator as to the

kind of neighborhood an area is or will become.

*1 The Court in Milliken explicitly stated that “in its present position,

the ease does not present any question concerning possible state housing

violations,” 418 U.S. at 728 n. 7, noting that the issue had not been

considered by the court of appeals. Thus Milliken did not foreclose the

use of housing violations as a basis for imposing interdistrict remedies

as some would suggest. See 541 F.2d at 1228 n. 8 (Tone, J., dissenting).

a

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A-16

remedy. 555 F.2d 373 (3d Cir. 1977), modifying and af g,

414 F. Supp. 328 (D. Del. 1976).

Considering the foregoing observations, we hold that an

interdistrict desegregation remedy is appropriate if the

following circumstances are shown to exist (given the

fact that there is a vast racial disparity between IPS and

the surrounding school districts within the ‘‘new’’ City of

Indianapolis): (1) that diserminatory practices have

caused segregative residential housing patterns and popu-

lation shifts; (2) that state action, at whatever level, by

either direct or indirect action, initiated, supported, or

contributed to these practices and the resulting housing

patterns and population shifts; and (3) that although the

state action need not be the sole cause of these effects, it

must have had a significant rather than a de minimis effect.

Finally, an interdistrict remedy may be appropriate even

though the state discriminatory housing practices have

ceased if it is shown that prior discriminatory practices

have a continuing segregative effect on housing patterns

(and in turn on school attendance patterns) within the

Indianapolis metropolitan area.

The record shows that the district court already hus

received evidence and has made certain findings in the area

of housing discrimination. See Indianapolis I, 338 F. Supp.

at 1204-05; Indianapolis IV, 419 F. Supp. at 183-85. It is

important, however, that on remand the district court

specify what state responsible housing practices of a dis-

criminatory nature, if any, have resulted, at least in part,

in segregative residential patterns. This is necessary not

only to determine initially whether an interdistrict remedy

is appropriate, but also to fashion an appropriate remedy.”

22In Dayton Board of Education v. Brinkman, 45 U.S.L.W. 4910

(June 27, 1977), the Supreme Court held that a district court, upon

ing a constitutional violation, must first determine how much in-

eremental effect the violations had on the racial imbalance in the schools.

As a remedy can be designed to redress only the difference between the

A-17

C

Although we hold that either the enactment of Uni-Gov

and its companion legislation or state discriminatory hous-

ing practices may provide a basis for implementing inter-

district relief, we must address one further point. The

suburban school officials may not maintain that their

districts must be excluded from any interdistrict remedy

because they may be innocent of committing any constitu-

tional violations, and that they should not be held respon-

sible for the acts of the state legislators or other state

subdivisions such as a local housing authority or a zoning

board. The commands of the Fourteenth Amendment are

directed at the state and cannot be avoided by a fragmenta-

tion of responsibility among various agents. Cooper v.

Aaron, 358 U.S. 1, 15-17 (1958). If the state has contributed

to the separation of the races, it has the obligation to

remedy the constitutional violations. That remedy may

include school districts which are its instrumentalities and

which were the product of the violation. Thus, if state

discriminatory housing practices have a substantial inter-

district effect, it is appropriate to require school authorities

to remedy the effects even though they did not themselves

cause this aspect of school segregation. As Chief Justice

Burger said in Milliken:

Of course, no state law is above the Constitution.

School district lines and the present laws with re-

spect to local control, are not sacrosanct and if they

conflict with the Fourteenth Amendment federal

present racial distribution and what it would have been in the absence

of constitutional violations, specific and Jetailed findings are required on

remand.

28 That a remedy may include agencies of the state not themselves

implicated in the constitutional violation was again recognized in Milliken.

In that case the Court acknowledged that a desegregation remedy could

have included the suburbs had the evidence shown that the violations by

the Detroit school board produced significant interdistriet segregative

effects. Milliken v. Bradley, 418 U.S. 717, 744-45, 748 (1974). See also

Hills v. Gautreaur, 425 U.S. 284, 292-94, 296 n. 12 (1976).

Brace ee ee we

A-18

courts have a duty to prescribe appropriate reme-

dies. 418 U.S. at 744.

III

Even though segregative action for which the state or

its agents may have been responsible comes within the

governing principles of Milliken, the district court on re-

mand must also determine whether that action (or inaction)

was made with a racially discriminatory purpose.

In Washington v. Davis, 426 U.S. 229 (1976), the Su-

preme Court held that state action is not racially discrim-

inatory within the meaning of the Equal Protection Clause

unless the action was taken for the purpose of discriminat-

ing between the races. If Davis did not change the law,“

it at least changed the way lower courts had consistently

interpreted it.“ Because that case was decided after the

instant case was last before the district court, neither the

Government nor the intervening plaintiffs offered any

evidence showing a racially discriminatory purpose.“

Statements in earlier opinions in this case suggesting that

there was no showing of discriminatory purpose should be

disregarded in view of the fact that such showing was not

deemed relevant at the time. Accordingly, we must remand

this case so that the district court may make findings on

24 See, e.g., Palmer v. Thompson, 403 U.S. 217 go oe me

25 See, e. g., cases collected in Washington v. Davis, 426 U.S. at n.

12. — 2 in Hawkins v. Town of Shaw, 461 F.2d 1171 (5th Cir.

1972) (en banc), one of the decisions explicitly disapproved in Davis,

the court stated: “In order to prevail in a case of this type it is not

necessary to prove intent, motive or purpose to discriminate on the part

of city officials.” Id. at 1172.

26 As J Tone recognized in dissenting in our previous opinion:

The —5 do not argue that the evidence shows a racially dis-

eriminatory purpose. In their briefs, filed before the decision in Wash-

ington v. Davis, the government assumes, and the intervening plaintiffs

argue, that such a purpose need not be shown. United States v. Board

of School Commissioners, 541 F.2d 1211, 1226 (7th Cir. 1976).

A-19

the question of intent consistent with Davis and Arlington

Heights.

Because of the protraction of this litigation, we make

the following observations with the hope that this matter

can be expedited and that further appeals can be avoided.

The key to an understanding of Washington v. Davis can

be found in the following passages. Courts must adhere

to the basic equal protection principle that the invidious

quality of a law must ultimately be traced to a racially dis-

criminatory purpose. . . This is not to say that the neces-

sary discriminatory racial purpose must be expressed or

appear on the face of the statute, or that a law’s dispropor-

tionate impact is irrelevant in cases involving Constitution-

based claims of racial discrimination. . . . Disproportionate

impact is not irrelevant, but it is not the sole touchstone of

an invidious racial discrimination forbidden by the Con-

stitution.’’ 426 U.S. at 240-42.

The Court amplified its intent requirement in Village of

Arlington Heights v. Metropolitan Housing Development

Corp., 429 U.S. 252 (1977). It noted that Davis does not

require a plaintiff to prove that the challenged action

rested solely on racially discriminatory purposes.“ Nor

must it be shown that the intent to discriminate was the

dominant or primary purpose. Rather the segregative in-

tent need be only a ‘‘motivating factor in the decision’’ to

establish a constitutional violation.“ Id. at 265-66.

*7 Thus a complainant does not have to establish that “but for“ the

segregative intent the decision would not have been made. Such rigorous

proof is not required not only because of the extreme evidentiary diffi-

culties in proving that fact, see Washington v. Davis, 426 U.S. at 253

(Stevens, J., concurring); Palmer v. Thompson, 403 U.S. 217, 224-25

(1971), but also because an illicit motive may be only subordinate and

still affect the outcome of a decision. See Best, Palmer v. Thompson: An

Approach to the Problem of Unconstitutional Legislative Motive, 1971

Sup. Ct. Rev. 95, 119.

~ —

—ͤ——'— — — tae

A-20

The Court in Arlington Heights further stated: Deter-

mining whether invidious discriminatory purpose was a

motivating factor demands a sensitive inquiry into such

circumstantial and direct evidence of intent as may avail-

able.’’ Id. at 266. The first and often the most probative

indicia of discriminatory purpose is the disproportionate

impact or effect a law or other official act may have.“ In

some circumstances impact alone may be sufficient.” For

example, where the discriminatory impact is great that

impact may ‘‘demonstrate unconstitutionality because in

various circumstances the discrimination is very difficult

to explain on nonracial grounds.’’ 426 U.S. at 242. As

Mr. Justice Stevens observed in his concurrence in Davis,

‘‘when the disproportion is.. dramatic... it really does

not matter whether the standard is phrased in terms of

purpose or effect. Id. at 254.

Where the effect or impact is not so great so as to itself

infer segregative intent, a number of factors were noted to

be relevant by the Court in Arlington Heights. They

include:

(1) the historical background of the decision, par-

ticularly if it reveals a series of official actions

taken for invidious purposes;

(2) the specific sequence of events leading up to the

challenged decision ;

(3) departures from the normal procedural se-

quence ;

(4) substantive departures, particularly if the fac-

tors usually considered important by the deci-

sionmaker strongly favor a decision contrary

to the one reached; and

28 The impact of the official action is usually the first factor to be

examined because, regardless of the presence of a segregative intent, a law

without a discriminatory impact does not give rise to a cause of action.

2° This is not to say that it is the impact or effect which triggers the

constitutional violation. Rather, when the discriminatory purpose be-

comes so stark, it becomes obvious that there could be no other basis

for the action other than a discriminatory one.

A-21

(5) the legislative or administrative history. of a

decision. 429 U.S. at 267-68.

Discriminatory purpose is inferred from considering the

totality of the available circumstantial evidence. Davis,

426 U.S. at 229. Even if no individual act carries un-

mistakable signs of racial purpose, a clear pattern is

sufficient to give rise to a permissible inference of segre-

gative intent. Armstrong v. Brennan, 539 F.2d 625, 637

(7th Cir. 1976).

Arlington Heights, while amplifying the intent require-

ment set forth in Davis, did not answer the crucial ques-

tion of what type of intent a plaintiff must show in order

to make out a prima facie case under the Equal Protection

Clause. In short, Arlington Heights instructed the lower

courts where to look for the required intent without defining

its imminent nature. It is clear, however, that the Davis

requirement of discriminatory purpose is not scienter (as

known in the criminal law) and is not the subjective motives

of individuals state officials, be they legislators or members

of a local school or zoning board.“ Such a test would pose

an impenetrable evidentiary barrier for plaintiffs, for in

an age when it is unfashionable for state officials to openly

express racial hostility, direct evidence of overt bigotry will

be impossible to find. Because a subjective test fails to

measure the presence of discriminatory purpose when

officials act discreetly, it is an outdated tool in the enforce-

ment of the Equal Protection Clause.“

0 Thus the terms “purpose” and “intent” must be distinguished from

the word “motive” which usually refers to the subjective intent of indi-

viduals.

314 subjective test for intent has other crippling disadvantages as

well. Under such a standard, it is unclear whose intent it is appropriate for

the courts to examine. For example, it was the General Assembly which

enacted the Uni-Gov Act and its companion legislation. Arguably, we

therefore ought to scrutinize the legislative history of that legislation as

well as any other records of what the members of the General Assembly

were thinking during that period for evidence of subjective diserimina-

A-22

There is, however, a more fundamental barrier to the

use of a subjective standard of intent which would direct

courts to evaluate the motives of the individuals who com-

prise an institution or state agency. It has been established

since Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 130-31 (1810),

that a court may not invalidate legislation based on the im-

proper motives of the legislators who enacted it. In Palmer

v. Thompson, 403 U.S. 217, 224-26 (1971), the Supreme

Court held that legislation that could be justified by racially

neutral reasons could not be attacked on the ground that

legislators were motivated by racial bigotry. Moreover, the

Court in Davis held that this aspect of Palmer remained

law, by interpreting Palmer as holding ‘‘that the legitimate

purposes of the ordinance . . . were not open to impeach-

ment by evidence that the councilmen were actually moti-

vated by racial considerations.’’ 426 U.S. at 243. If

discriminatory purpose is required for a constitutional vio-

lation, the inevitable conclusion is that the ‘‘segregative

purpose or intent’’ relevant for equal protection analysis

differs from the motivation of individual decisionmakers.

It is clear, therefore, that discriminatory purpose for

constitutional analysis is to be gleaned not from individual

officials but from the relevant governmental institutions.

tory intent. But which legislators’ minds should we consider? Only those

who voted in favor of the legislation? But what of those legislators who

voted for legislation but did not harbor any racial motive? Should

their votes be discarded? Likewise, should the votes of those who were

racially motivated be considered in judging the legislation? As Mr. Justice

Stevens observed in Washington v. Davis, “A law conscripting clerics

should not be invalidated because an atheist voted for it.” 426 U.S. at 253.

There is a more basic problem in limiting a search to the subjective

motives of the individual legislators. To so limit our inquiry is to ignore

the fact that the legislature frequently is nothing but a conduit for the

desires of the individuals or interest groups which have influence and

sources of power. To be comprehensive in our search we would have to

examine their motives. At that point, however, we would be in a quan-

dary, for there is no way to determine with any certainty the degree to

which bigotry on the part of these persons or interest groups actually

affected the General Assembly’s decision.

A-23

As a subjective test would be impossible to apply in such

circumstances, the courts are driven to adopt an objective

criterion in determining whether the challenged state ac-

tion is imbued with a segregative intent or purpose. Such

criterion must include an examination of the institutional

policy that underlies the action.“ (By ‘‘policy’’ we mean a

deliberate course of action, selected among alternatives,

that is deemed advantageous or expedient.) We agree

with the Sixth Circuit when it said:

A presumption of segregative purpose arises when

plaintiffs establish that the natural, probable, and

foreseeable result of public officials’ action or in-

action was an increase or perpetuation of public

school segregation. The presumption becomes proof

unless defendants affirmatively established that their

action or inaction was a consistent and resolute ap-

plication of racially neutral policies. NAACP v.

Lansing Board of Education, 559 F.2d 1042, 1046-47

(6th Cir. 1977), quoting Oliver v. Michigan State

Board of Education, 508 F.2d 178, 182 (6th Cir.

1974).

Thus if plaintiffs establish either that the governmental

action or inaction under scrutiny does not further the

governmental policies or that the government ignored

less segregative options which would have furthered its

policies as effectively as the more segregative option it

chose, see Armstrong v. Brennan, 539 F.2d 625, 636 (7th

Cir. 1976), then a prima facie case of discriminatory intent

or purpose has been made out. This inference is justifiable

because governmental institutions must be presumed to

have knowledge of the natural and foreseeable conse-

quences of their action of inaction, and because there are

rarely significant nonracial reasons for preferring a more

rather than less segregative alternative.

82 See generally, Note, Reading the Mind of the School Board: Segre-

gative Intent and the De Facto De Jure Distinction, 86 Yale L. J. 317,

333-43 (1976).

A-24

IV

The district court’s injunctive order against the Housing

Authority of the City of Indianapolis (‘“HACI’’) must

also be reexamined in light of Washington v. Davis and

Arlington Heights for reasons which we shall develop.

But first we state the facts as shown by the record before

us.

Upon remand from this court in 1974, the district court

entertained a cross-complaint brought by the IPS Board

against the Metropolitan Development Commission of

Marion County (‘‘Commission’’) and the HACI, which

were brought into the case as additional defendants. The

cross-complaint alleged that the Commission and HACI

materially contributed to segregation in IPS by consist-

ently building public housing projects within the borders

of IPS rather than in suburban areas, despite HACI 8

authority to build housing within five miles of the eity

limits and the Commission’s county-wide jurisdiction. The

court found that the Board’s allegation was correct, and

concluded that the inevitable effect of this policy was to

increase the racial disparity between IPS and the suburban

school districts because 98% of public housing tenants were

black.

The court placed a major part of the responsibility for

the lack of public housing in the suburbs on the resistance

of suburban officials to the movement of blacks into their

areas. It found:

Suburban Marion County has resisted the erection

of public housing projects outside IPS territory,

suburban Marion County officials have refused to

cooperate with HUD on the location of such projects,

and the customs and usages of both the officials and

inhabitants of such areas has been to discourage

blacks from seeking to purchase or rent homes

therein, all as shown in detail in previous opinions

of this Court. 419 F. Supp. at 183.

A-25

To remedy the segregative effect of the placement of public

housing projects, the court enjoined HACI from building

future projects within IPS.” It also prohibited HACI

from reopening Lockefield Gardens, a vacant project, to 3

anyone but elderly tenants. Id. at 186.

The district court’s injunction rested on the conclusion

that HACI and the Commission had violated the Equal

Protection Clause. The court’s holding was based on two

findings: first, HACI and the Commission always located

public housing within IPS even though they had authority

to build in the suburbs; and second, suburban officials con-

sistently resisted the construction of public housing out-

side of IPS. Although the court’s findings show that the

policies pursued by HACI and the Commission produced

racial discriminatory effects, under Davis and Arlington

Heights discriminatory impact alone does not generally

demonstrate a constitutional violation.

The district court did not determine whether HACI or

the Commission acted with an invidious purpose in limiting

the construction of public housing to IPS. Accordingly, it

will be necessary to vacate the order and remand the case

to the district court to make findings whether HACI and

the Commission acted with discriminatory intent. If they

did, an injunctive order similar to the one appealed from

would be appropriate.

But it is also possible that the actions of both agencies

were totally devoid of discriminatory intent, and they failed

to build public housing in the suburbs solely because sub-

urban officials would not permit them to do so. Such a

finding, however, would not end the inquiry. If it is deter-

mined that some or all of the suburbs resisted public

housing or refused to cooperate with HACI’s effort to go

beyond the boundaries of IPS on racial grounds and with

$8 HACI was not prohibited under the order from building projects

outside of IPS.

.

A-26

the segregative intent to confine the black people of Marion

County to the black ghetto of the inner city, such a

determination alone would justify an injunctive order simi-

lar to the one appealed from.“

We also remand the interdistrict busing order for the

reasons outlined in this opinion. Although the district

judge’s previous findings and discussions indicate that

he had in mind the principle stressed in Dayton v. Brink-

man, .... U.S. .... (1977), namely, that once a constitutional

violation is found, the court must tailor the scope of the

remedy to fit the nature of the violation, we believe that the

district court should explicitly consider the appropriate

application of that principle to the formulation of any in-

terdistrict remedy.

The orders appealed from are vacated and the case is

remanded for further proceedings consistent with this

opinion.

Famcump, Chief Judge, concurring. I interpret the di-

rections given by the Supreme Court on remand as re-

quiring a determination whether or not (1) the state’s

separation of the municipal boundary from the school dis-

trict boundary was done with intent to maintain the

34 It is true that the suburbs were not uamed as defendants in the IPS

Board’s cross-complaint. This fact is irrelevant, however, to the question

of whether the requested injunctive relief should be granted against

HACI. Ordinarily a person should not be held legally accountable for

the action of a third party. But in the factual situation before us that

axiomatic proposition is inapplicable. It does not matter whether HACI

itself had a discriminatory intent in limiting public housing to ISP or

whether the suburbs with discriminatory intent refused to cooperate, thus

preventing HACI from expanding public housing projects beyond the

IPS boundary. The result was the same and HAClI, as a public agency,

should not be free from an injunctive order merely because its conduct

was forced from the outside. It should also be kept in mind that the

remedy sought by the cross-complaint is against HACI—not against the

suburbs—and therefore the inquiry may be extended to what if any

suburban conduct with discriminatory intent influenced the action of

HACI.

A-27

concentration of black students in IPS schools and (2)

the Housing Authority’s (and Commission’s) choices in the

location of housing were made with similar discriminatory

intent. If the record required us to say as a matter of law

that there was no such intent, we would reverse and direct

denial of interdistrict relief and dismissal of the cross-

complaint against HACI. If it required us to say as a

matter of law that such intent was present, we would either

affirm the decree, modify it, or reverse and remand for

modification by the district court.

I agree with Judge Swygert that existence or absence

of intent cannot be determined as a matter of law from

the present record, particularly since that issue was rot

really tried, and therefore agree that we should reverse and

remand for further proceedings and findings on the issue of

intent. If such intent be found with respect to ( 1) or (2),

or both, the district court should impose an appropriate

interdistrict desegregation remedy. If such intent be found

with respect to (2), the district court should also enter an

appropriate injunction against HACI (and Commission). I

concur in reversal with those directions.

I agree, generally, with Parts I and II of the opinion

prepared by Judge Swygert.

With all respect, I do not subscribe to all the matters

stated in Part ITI. In particular, I do not agree with the

analysis of the issue of intent in terms of type, sub-

jective test, or ‘‘standard”’ of intent.

I recognize, to be sure, the difficulties attendant upon

determination of the ‘‘intent’’ with which an action is

taken by a state legislature or other multi-member govern-

mental body. It is often difficult to identify the group of

individuals who controlled a particular decision and whose

individual purposes in making it are therefore the most

significant.

A-28

Fundamentally, however, the intent of a body of individ-

uals with respect to a particular act of the body must be

determined by the same process as an individual’s intent

is determined. It is to be inferred from acts (including

acts and statements of individuals which can reasonably be

attributed to the body) and surrounding circumstances

(including foreseeable consequences of the act in question).

This is essentially a fact finding process. The Supreme

Court has provided guidance in Arlington Heights, 429

U.S. at 266-68. As the Court stated:

The foregoing summary identifies, without purport-

ing to be exhaustive, subjects of proper inquiry in

determining whether racially discriminatory intent

existed.

429 U.S. at 268.

Part IV deals with the injunction entered upon the IPS

cross-complaint, forbidding HACI ta build future public

housing within IPS. I agree that there must be a finding

as to the intent with which HACI chose the locations of its

projects.

Where a suburb had power to prevent HACT from locat-

ing a project within it, that suburb’s attitude would be

relevant in the process of finding whether HACI acted

with discriminatory intent in deciding to build elsewhere.

Once HACI were found, however, to have acted with

discriminatory intent, it is hard to see how the guilt or

innocence of various suburbs would affect the scope of

an injunction against HACI.

If and to the extent that relief were sought against a

suburb on a claim that it violated rights either by prevent-

ing students from attending its schools or by preventing

people from obtaining housing within its borders, its dis-

criminatory intent would, of course, be relevant.

Tone, Circuit Judge, dissenting. I remain of the view,

stated in my dissent when the case was here before cer-

A-29

tiorari and remand, 541 F.2d at 1224, that the record

contains no evidence that would support a finding of

racially discriminatory purpose with respect to either

Uni-Gov or selection of public housing sites. There is no

need to repeat what was said there.

If the issue of discriminatory purpose had not been

previously addressed by the parties or the trial court,

and had first entered the case because of the Supreme

Court’s remand, it would be appropriate for us to remand

to the District Court for the taking of evidence and find-

ings on that issue. But that issue was previously in the

ease. Discriminatory purpose was specifically pleaded in

paragraph 10 of the intervening plaintiffs’ amended com-

plaint, and evidence was offered in an attempt to prove

that allegation after our last remand.’ This was not an

irrelevant allegation and it was not treated as such by

counsel for the intervening plaintiffs, who understandably

wanted two strings to their bow, by counsel for the de-

fendants, or by the district judge. The proof failed, and the

district judge carefully, as I read his opinion, refrained

from finding the presence of discriminatory purpose. The

tenor of his findings on both the Uni-Gov and public hous-

ing issues was such that it is inconceivable that he would

not have found discriminatory purpose if he had believed

it warranted by the evidence. 419 F.Supp. at 182-183. In

this tenth year of the litigation, I think that should be an

end to the matter. The usual rule should be applied, and

we should not send the case back to permit the intervening

plaintiffs to make another attempt to prove allegations

1 Which was for a determination of “whether the establishment of the

Uni-Gov boundaries without a like reestablishment of IPS boundaries

warrants an inter-district remedy within Uni-Gov in accordance with

Milliken.” 503 F. 2d 68, 86.

2 That the Court would hold as it did in Washington v. Davis, 426 U.S.

229 (1976), was, at the very least, foreseeable as a possibility. See 426

U.S. at 239-245; and see my earlier dissent, 541 F.2d at 1224.

|

|

A-30

they have already tried but failed to prove, while a com-

plete remedy for intra-district violations conclusively ad-

judicated in 1973 (474 F.2d 81) is delayed on the chance

that an interdistrict remedy will ultimately emerge.’

Turning to the issues on remand, I shall not attempt

to state the respects in which I disagree with the opin-

ion announcing the judgment of the court, which are for

the most part apparent from my earlier dissent, except

to say that until now the District Court and this court

have recognized that the only material distinctions be-

tween the facts in this case and those in Milliken v. Bradley

lay in Uni-Gov and the siting of public housing projects by

HACI. As for Part III of the opinion, with all respect, I

do not think we make the district judge’s task any easier by

providing him with an advisory interpretation of Supreme

Court decisions (which he can read as well as we can) when

we cannot agree among ourselves how they should be

interpreted.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

8 The brief for the United States filed in the Supreme Court in con-

nection with the 1976 appeals and petitions for certiorari in that Court

stated as follows:

The United States commenced this suit to challenge racial diserimina-

tion by and within IPS. It prevailed on its claims. Full relief has been

delayed for several years, however, while the district court has con-

sidered an expanded, inter-district remedy that the United States did

not seek. In our view this delay has been fruitless, because the evi-

dence has not demonstrated any purposeful inter-district racial dis-

crimination of the sort that would justify an inter-district mandatory

reassignment of students.

A-31

Unrrep States or America,

Plaintiff-Appellee,

Donny Baux. Buckizy AND Atycia Marquess Bucxkuey,

BY THEIR PARENT AND NEXT FRIEND Rusy L. Buck.ey, on

BEHALF OF THEMSELVES AND ALL NEGRO SCHOOL AGE CHIL-

DREN RESIDING IN THE AREA SERVED BY THE ORIGINAL DEFEND-

ANTS HEREIN, INTERVENING

Plaintiff s- Appellees.

v.

Boarp or School Commissioners or Ciry or INDIANAPOLIS,

INDIANA, ET AL.

Defendants-Appellants.

Nos. 75-1730 through 75-1737, 75-1765, 75-1936,

75-1964, 75-1965 and 75-2007.

UNITED STATES COURT OF APPEALS,

SEVENTH CIRCUIT.

Arcuep Dec. 3, 1975. Domo Juty 16, 1976

Before FAIRCHILD, Chief Judge, and SWYGERT and

TONE, Circuit Judges.

SWYGERT, Circuit Judge.

This is the third review of successive desegregation

orders in a suit brought in 1968 by the United States against

the Board of School Commissioners of the City of Indian-

apolis. The issue before us, as in Milliken v. Bradley, 418

U.S. 717, 94 S. Ct. 3112, 41 L.Ed.2d 1069 (1974), concerns the

appropriate exercise of federal equity jurisdiction. The

district court, 419 F.Supp. 180, found two violations of the

Equal Protection Clause upon which it based the inter-

district remedies that are at issue on this appeal. The

first was the failure of the state to extend the boundaries of

A-32

the Indianapolis Public School District (IPS) when the

municipal government of Indianapolis and other govern-

mental units in Marion County, Indiana, were replaced by

a consolidated county-wide government called Uni-Gov.

The second violation was the confinement of all public

housing projects (in which 98 percent of the residents are

black) to areas within the boundaries of the City of Indian-

apolis.

On the basis of these violations the district court deter-

mined that a limited interdistrict remedy would be appro-

priate. The court ordered a transfer of black IPS students

in grades 1-9 to suburban school districts (except two)

within Marion County in such number as to cause the total

enrollment of pupils in the suburban schools to be 15 per-

cent black after the transfer. The district court also en-

joined the Housing Authority of the City of Indianapolis

from constructing any future public housing projects in-

side the boundaries of IPS and from renovating a housing

project known as Lockefield Gardens for other than elderly

persons.

On the basis of the entire record and the findings of the

district court, we affirm.

The History of the Case

The history of this litigation was described in our most

recent opinion, United States v. Board of School Commis-

sioners of City of Indianapolis, Indiana, 503 F.2d 68, 71-75

(7th Cir. 1974), cert. denied, 421 U.S. 929, 95 S.Ct. 1654,

44 L.Ed.2d 86, nonetheless, a brief summary is appropriate.

There have been four phases in this suit. In Indianapolis

I the sole issue was racial segregation within the schools

in the Indianapolis Public School District. Judge Dillin,

after noting Indiana’s official policy of school segregat 1

A-33

t

until 1949, reviewed the conduct of IPS since that year and

found the school district guilty of de jure segregation.

United States v. Board of School Commissioners of City of

Indianapolis, Indiana, 332 F.Supp. 655 (8.D.Ind.1971).

The court then ordered the United States to add as de-

fendants other school districts in the metropolitan area in

order to provide the proper setting for consideration of the

appropriateness of a metropolitan remedy. The Govern-

ment complied with the order. The Buckley plaintiffs, rep-

resenting a class of black school children, were granted per-

mission to intervene. They joined as defendants several

state officials and additional school districts.

On appeal this court affirmed, finding that there was a

clear pattern of purposeful discrimination in the gerry-

mandering of school attendance zones, in the segregation

of faculty, in the use of optional attendance zones among the

schools, and in school construction and placement—a

Plattern of decision making which . . reflected a suc-

cessful plan for de jure segregation.’’ United States v.

Board of School Commissioners of City of Indianapolis,

Indiana, 474 F.2d 81, 84-88 (7th Cir. 1973), cert. denied,

413 U.S. 920, 93 S.Ct. 3066, 37 L.Ed.2d 1041.

After remand from this court, the district court in

Indianapolis II took up the problem of fashioning a remedy.

One of the issues ai trial was the constitutionality of the

Uni-Gov Act. The court ordered a remedy without reaching

this question. The court found that a meaningful permanent

desegregation plan could not be accomplished within the

boundaries of IPS, based upon evidence that when the per-

centage of blacks in a given school approaches 25 to 30

percent white flight accelerates, resulting in resegregation.

United States v. Board of School Commissioners of City of

Indianapolis, Indiana, 368 F.Supp. 1191 (S.D.Ind.1973).

The court further found that the State of Indiana, its

officials, and agencies by various acts and omissions pro-

A-34

moted segregation and inhibited desegregation within IPS,

so that the state which was ultimately charged under the

Indiana law with the operation of its public schools had a

continuing affirmative duty to desegregate the Indianapolis

school system.

The court then ordered a broad interdistrict remedy

which encompassed the entire metropolitan area including

school districts outside of Marion County. The court held

it was the duty of the state, through its General Assembly,

to devise its own plan of desegregation, with the under-

standing that if it failed to do so within a reasonable time

the court would have the authority and duty to formulate

its own plan. As interim relief, the court ordered IPS to

effect pupil reassignments for the 1973-1974 school year

sufficient to bring the number of black pupils in each of its

elementary schools to approximately 15 percent.

In response to the court’s order for the interim relief,

IPS submitted a desegregation plan. The court rejected

it as inadequate and appointed a two-member commission

to develop a plan. This plan was approved by the court

and has been implemented. The district court also ordered

IPS to transfer to certain defendant school districts a num-

ber of black pupils equal to 5 percent of the 1972-1973 en-

rollment of each transferee school (with certain excep-

tions). (This portion of the order was stayed incident to

subsequent proceedings.) United States v. Board of School

Commissioners of City of Indianapolis, Indiana, 368

F.Supp. 1223 (S.D.Ind.1973).

In Indianapolis III the court issued a supplementary

opinion in which Judge Dillin proffered recommendations to

the State of Indiana for implementing a desegregation plan.

In response, the General Assembly adopted a bill that

provides for the adjustment of tuition among the transferor

and the transferee districts and for the reimbursement of

A-35

transportation costs by the state whenever a federal or

state court makes certain findings.

On appeal from Indianapolis II and Indianapolis III

this court, besides affirming the commission’s interim IPS

plan, affirmed the district court’s holding that the State of

Indiana, as the ultimate body charged with responsibility

of operating its public schools, [Has an affirmative duty

to assist the IPS Board in desegregating IPS within its

boundaries. United States v. Board of School Com-

missioners, 503 F. 2d 68, 80 (7th Cir. 1974), cert. denied,

421 U.S. 929, 95 S.Ct. 1654, 44 L.Ed.2d 86. This court, how-

ever, in accordance with Milliken v. Bradley, 418 U.S. 717,

94 §.Ct. 3112, 41 L.Ed.2d 1069 (1974), reversed the district

court’s order pertaining to the interdistriet remedy as to

those school districts outside of Uni-Gov (Marion County).

That portion of the order pertaining to the interdistrict

remedy within Uni-Gov was vacated and remanded for

further proceedings. We said:

The district court should determine whether the

establishment of the Uni-Gov boundaries without a

like reestablishment of IPS boundaries warrants an

inter-district remedy within Uni-Gov in accordance

with Milliken. 503 F. 2d at 86.

1 The Indiana Statute, Acts 1974, P.L. 94, §1; I. C. 1971, 20-8.1-6.5-1,

Burns Ind.Stat.Ann. § 28-5031 (1971), provides in pertinent part:

This chapter applies solely in a situation where a court of the United

States or of the State of Indiana in a suit to which the transferor or

transferee corporation or corporations are parties has found the fol-

lowing: (a) a transferor corporation has violated the equal protection

clause of the fourteenth amendment to the Constitution of the United

States by practicing de jure racial segregation of the students within

its borders; (b) a unitary school system within the meaning of such

amendment cannot be implemented within the boundaries of the trans-

feror corporation, and (e) the fourteenth amendment compels the

court to order a transferor corporation to transfer its students for

education to one or more transferee corporations to effect a plan of

desegregation in the transferor corporation which is acceptable within

the meaning of such amendment.

— = ee. eT

oor

A-36

On remand, in Indianapolis IV, 419 F.Supp. 183, the

district court held another evidentiary hearing on Uni-Gov

and housing practices within Marion County. In regard to

Uni-Gov Judge Dillin found:

The evidence clearly shows that at the time of the

passage of the Uni-Gov Act in 1969, various annexa-

tion plans and school consolidation plans had bogged

down on the local level because of the aforemen-

tioned opposition of the suburban school corpora-

tions within Marion County, and their patrons... .

When the General Assembly [which under state and

federal law had a duty to alleviate segregation in

IPS] expressly eliminated the schools from con-

sideration under Uni-Gov, it signaled its lack of

concern with the whole problem and thus inhibited

desegregation [sic] IPS.

Referring to the suburban Marion County units of gov-

ernment, he stated:

They have resisted school consolidation, they re-

sisted civil annexation so long as civil annexation

carried school annexation with it, they ceased resist-

ing civil annexation only when the Uni-Gov act made

it clear that the schools would not be involved. Sub-

urban Marion County has resisted the erection of

public housing projects outside IPS territory, sub-

urban Marion County officials have refused to co-

operate with HUD on the location of such projects,

and the customs and usages of both the officials and

inhabitants of such areas has [sic] been to discour-

age blacks from seeking to purchase or rent homes

therein, all as shown in detail in previous opinions of

this Court.

With respect to the public housing authorities the district

judge said:

The evidence is undisputed that each and every

public housing project constructed and operated by

the added defendant HACTI is located within IPS

territory, in some instances just across the street

A-37

from territory served by one of the added defendant

school corporations. Each of such locations was ap-

proved—in some instances selected in the first place

—by the added defendant Commission. The latter

institution has had county-wide zoning jurisdiction

at all times during the construction of 10 out of the

11 public housing projects for families, and HACI

has at all times had the authority to erect public

housing within the City of Indianapolis, and within

five miles of the corporate limits of such city. The

residents of said public housing projects are ap-

proximately 98% black (except in projects for the

elderly), and their children all attend school in IPS.

The location of these housing projects by instru-

mentalities of the State of Indiana has obviously

tended to cause and to perpetuate the segregation of

black pupils in IPS territory.

Based on these findings and those set forth in his former

opinions, Judge Dillin ruled that an interdistrict remedy

was necessary to effect desegregation within IPS. He

again found that if desegregation were limited to IPS,

schools within IPS would become 42 percent black, and

that this percentage exceeded the ‘‘tipping point“ at which

resegregation would occur. He commented:

The Court of Appeals has called the attention of

this Court to the rule of law that white flight“ is

not an acceptable reason for failing to dismantle a

dual school system. 503 F. 2d 80, citing United States

v. Scotland Neck City Board of Education, 407 U.S.

484, 491, 92 S.Ct. 2214, 2218, 33 L.Ed.2d 75 (1970).

However, it does not follow that this Court must

ignore the probability of white flight in attempting

to formulate guidelines for IPS to follow in accom-

plishing the final desegregation of its schools. In

other words, as this Court sees it, white flight may

not be used as an excuse for inaction; it may, how-

ever, supply the reason for a particular kind of

action.

„

A-38

Judge Dillin therefore ordered the transfer of 6,533

students from IPS to other school districts in Marion

County. An additional 3,000 students were to be trans-

ferred in the second year of the plan, raising the proportion

of black etudents in the suburban schools to 15 percent.“

No transfers were ordered to Washington and Pike Town-

ships, which already had black populations of 15 and 12

percent. The district court also enjoined the Housing

Authority from building any more family housing projects

in IPS territory and from renovating an all black project

called Lockefield Gardens. Finally, the Buckleys were

awarded attorneys’ fees under 20 U.S.C. § 1617.

All the defendants have appealed. The defendants other

than the Housing Authority challenge the interdistrict

transfers ordered by the district court. The Housing

Authority challenges the injunction against it. On the other

side, the Buckleys, together with an amwus curiae, the

Coalition for Integrated Education, argue for affirmance of

the district court order. The United States argues that the

finding of interdistrict violations should be sustained but

seeks modification of the portion of the order calling for

mandatory interdistrict transfers of students. It argues for

affirmance of the injunction against the Housing Authority.

II

Facts Pertinent to this Appeal

A. Residential and School Demography of Marion County

In 1969 when Uni-Gov was created, 95 percent of the

blacks in Marion County lived in Indianapolis. Only about

50 percent of the whites in the county lived in the city. The

black population continues to grow within the core city as

reflected by the ratios in the schools. The percentage of

2 IPS will be obligated to pay the suburban school districts the cost of

educating the transferred pupils. See supra n. 1.

A-39

black students in IPS increased from 36 percent in 1968 to

42 percent in 1975. The 1974-1975 black/white ratio in IPS

was 57.22 percent white and 42.16 percent black. On the

other hand, the overall ratio in Marion County was 74.87

percent white and 24.40 percent black.“ For the years 1974

1975 the racial composition of the suburban school districts

within Marion County (other than Pike and Washington)

was as follows:

1973

Percentage of Black Residents in Marion County

(Percentage of Black Students in Marion County Schools)

Percentage of Percentage of

Township White Black

Decatur 99.83 9

Franklin 99.35 1

Lawrence 95.50 2.9

Perry 98.64 .23

Warren 98.61 73

Wayne 97.87 1.19

Beech Grove 99.64 04

Speedway 99.10 72

8 The black population in Marion County is reflected by the following

map. a

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A-40

B. Uni-Gov

Until 1969 the boundaries of IPS corresponded roughly

to the boundaries of the City of Indianapolis, and the other

Marion County school districts were truly suburban. In

1969, however, the so-called Uni-Gov Act, which is officially

titled the ‘‘Consolidated First-Class Cities and Counties

Act,“ Acts 1969, ch. 173, § 101; I. C. 1971, 1841-1 et seq.,

Burns Ind. Stat. Ann. §§ 48-9101 et seg. (1971), transformed

Marion County into a consolidated metropolitan govern-

ment. School districts were specifically excluded from

Uni-Gov.

Uni-Gov is governed by a mayor and council. Its purpose

was to efficiently reorganize civil government within Marion

County. Previously, there had been a splintering of govern-

mental responsibility into loosely controlled agencies with

overlapping jurisdictions. Uni-Gov has succeeded to most

of the functions of county government and of numerous

special service districts. It has also succeeded to the func-

tions of the City of Indianapolis and provides municipal

services such as police and fire protection within the ap-

proximate area of the old city. The Act contains provisions

for expanding the areas in which Uni-Gov delivers these

municipal services. See, e. g., I. C. 1971, 18-4-12-36 (fire

district) ; I. C. 1971, 18-4-12-8 (police district).

Uni-Gov has not, however, replaced all existing govern-

mental units in Marion County. For example, the airport

authority, the county courts, the building authority, and the

hospital corporation were excluded from Uni-Gov. The

so-called excluded cities’’ of Speedway, Perry, and Law-

rence retain their own local governments which provide

municipal services in those areas. Nonetheless, Uni-Gov

has significant powers even in the excluded cities. It is in

charge of sir pollution regulation, building code enforce-

ment, and municipal planning and thoroughfare control.

A-41

Moreover, the citizens of the excluded cities vote in Uni-

Gov elections.

C. History of Public Housing

Between 1966 and 1970 the Housing Authority built and

opened for occupancy ten housing projects for low-income

families. These and Lockefield Gardens, which was built

during the depression, are the only public housing projects

for family occupancy in Marion County, although other

forms of subsidized housing are available. All ten projects

were built within the boundaries of IPS. These projects

opened with 50 to 75 percent black occupancies and are

now 98 percent black.

The Housing Authority was authorized under state law

to construct projects within Indianapolis and within five

miles of the city’s boundaries. Federal funding could be

obtained only if the Housing Authority entered into a

cooperation agreement with the municipality or other civil

governmental entity having jurisdiction over the territory

in which it desired to build. The City of Indianapolis en-

tered into a cooperation agreement with the Housing Au-

thority, but no other governmental entity in Marion County

did so, even though the Housing Authority approached the

county commissioners about an agreement.

Since 1889, when Uni-Gov became effective, the Housing

Authority has apparently had the authority to construct

projects outside the old city limits, except in the Towns of

Speedway, Lawrence, and Beech Grove, without the need

for cooperation agreements. No housing projects have been

commenced within or outside IPS since that time nor are

any planned. The record does not show why. There are

presently pending applications for approximately 3,000

families.

.

:

5

A-42

The Housing Authority argued that suitable sites did not

exist outside the City of Indianapolis because services such

as public transportation would have been unavailable. There

was evidence, however, that these services could have been

arranged. The evidence showed that public transportation

routes could have been extended to areas of demonstrated

need, that food stamp distribution offices could have been

established at the projects, that sewage services could have

been obtained by contract with the city, and that police and

fire protection could have been obtained from the city.

Six of the housing projects are on the IPS boundary lines

or within a few blocks thereof. For example, Clearstream

Gardens was located on the IPS side of a street which

divided IPS and Warren Metropolitan School District. A

witness for the Housing Authority, under questioning by

the district court, was unable to state why, ‘‘from the stand-

point of these criteria you mentioned, there was any dif-

ference at all between the location on the east side or the

west side of Emerson Avenue.“ The other projects and

their locations are set forth below.“ These projects contain

between 900 and 1,000 family units and house a substantial

number of black achool children.

D. History of School District Boundaries

Until 1969, under a variety of laws which are discussed

below, the IPS boundaries were largely coterminous with

the city boundaries. Under a 1931 act, the boundaries of

IPS were made coterminous with those of the city. Acts

1931, ch. 94, §1; I. C. 1971, 20-3-11-1, Burns Ind.Stat.Ann.

4 Rowney Terrace is ten blocks north of Clearstream Gardens on the

same boundary line between IPS and Warren Metropolitan School Dis-

triet (MSD).

Raymond Villa is approximately four blocks north of the boundary

line between IPS and Beech Grove.

Laurelwood is in a narrow peninsula of IPS that is surrounded on

three sides by Perry MSD.

A-43

§ 28-2601 (1971).* Until 1959, boundaries of school districts

and municipalities were also coterminous elsewhere in Indi-

ana, with some exceptions, and the IPS boundaries merely

reflected the generally prevailing condition.

In 1959 the Indiana School Reorganization Act, Acts 1959,

ch. 202, § 1; LC.1971, 20-4-1-1 et seg., Burns Ind. Stat. Ann.

§ 20-4-1-1 et seq. (1975), created a complex scheme for con-

solidating school districts. Consolidations under the Act re-

duced the number of school districts outside Marion County

from 990 to 305. Some 70 percent of the reorganized dis-

tricts were not coterminous with other units of civil govern-

ment. In some cases consolidated school districts crossed

county lines.

Marion County, however, was an exception. School dis-

tricts there were not consolidated. The Marion County Re-

organization Committee, appointed pursuant to the Act,

initially recommended that all school systems in the county

be merged into one, but the unanimous opposition of the

suburban school districts defeated the merger proposal.

There is no evidence that this opposition was racially moti-

vated.“ The Committee’s ill-fated consolidation proposal

was intended to ‘‘develop equal educational opportunities

Coneord Village is approximately one-half mile from the Speedway

boundary.

Eagle Creek is on the boundary line between IPS and Wayne MSD.

5 Acts 1963, ch. 310, §4; 1.C.1971, 20-3-11-33, Burns Ind. Stat. Ann.

§ 28-2633 (1971), provides that the 1931 act remains in effect except to

the extent that its various provisions are inconsistent with the 1959 act

discussed in the text. The provision of the 1931 act making IPS bound-

aries coterminous with those of Indianapolis is inconsistent with the

1959 act and consequently was not reenacted by the 1963 act. The 1963

act did not purport to affect the provisions of the 1961 act discussed in

the text.

The district judge’s comment is pertinent. “In fact, the evidence shows

that, with a few exceptions, none of the added defendants have had the

opportunity to commit such overt acts because the Negro population

residing wtihin the borders of such defendants ranges from slight to

none, . . United States v. Board of School Commissioners, 368 F.Supp.

at 1203.

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A-44

for all children in Marion County,’’ and to ‘‘eliminate the

confusion of school transfers and dislocations involved in

annexation proceedings.’’

The most substantial reasons against consolidation noted

in the Committee’s report were that a consolidated school

district would be large, with consequent loss in citizen par-

ticipation and interest in school affairs, and that merger

would result in increased school taxes in IPS and two of

the suburban districts. The Committee explained that the

consolidation plan ‘‘had no widespread support—only or-

ganized opposition,’’ and that it did not wish to ‘‘force a

plan (however sound in its conception) upon an unwilling

or reluctant public.’’ So, although it believed the arguments

in favor of its plan far outweighed the opposition argu-

ments, the Committee, as the district court found, IRle-

versed itself and proposed a plan which, with minor excep-

tions . . . froze all existing school corporations in Marion

County according to their then existing 1961 boundaries.’’

United States v. Board of School Commissioners, 368 F.

Supp. 1191, 1203 (S.D.Ind.1973). The Committee thereby

abandoned both its merger plan and a less radical plan

which would have restructured school boundaries on what

the Committee regarded as a more rational basis than ex-

isting boundaries. Accordingly, the plan adopted in 1962,

after approval by the state, did not significantly change

boundaries in Marion County, but left those boundaries

coterminous with those of civil governmental bodies.

As a result of the 1959 Reorganization Act, school bound-

aries in most of the state were frozen and thereafter unaf-

fected by municipal annexations. In 1961, however, special

legislation was enacted to give the schools within Marion

County the flexibility lost by the 1959 Reorganization Act.

Acts 1961, ch. 186, § 1; I.C.1971, 20-3-14-1 et seg., Burns Ind.

Stat.Ann. § 28-3610 (1971). Under the 1961 act extension

of the boundaries of a civil city automatically extended the

A-45

corresponding school district boundaries unless the school

city and the losing school corporation mutually agreed that

the school city territory would not expand with the civil

city. The school district whose territory was to be taken

could also oppose the civil annexation in a remonstrance

suit. The annexation powers of the city, however, proved to

be illusory, for they were effectively frustrated by remon-

strance litigation.’

Another means of annexation under the 1961 act was by

mutual agreement between school corporations. IPS (and

other school districts with boundaries corresponding with

those of a civil city) also had a unilateral power of

annexation subject to the right of the school district

whose territory was to be taken to oppose by remon-

strance. No significant action was taken by IPS under this

provision.

In summary, until 1969, the combined action of the State

of Indiana and its political subdivisions had the effect of

leaving the boundaries of the City of Indianapolis and IPS

substantially the same despite statewide school district con-

solidations made under the 1959 act. True, IPS could ex-

pand independently of the city, but the city’s annexation

prima facie carried IPS with it. Although it turned out that

no annexations occurred, the policy of the state, as ex-

pressed in the 1961 legislation, was that IPS would expand

along with the city.

In 1969, after this action was filed, two other acts were

adopted. One act, Acts 1969, ch. 52, § 3; I.C.1971, 20-3-14-9,

Burns Ind.Stat.Ann. § 28-3618 (1971), adopted sixteen days

before Uni-Gov was enacted, amended the 1961 act by abol-

ishing the power of IPS to follow municipal annexations.

Another act, Acts 1969, ch. 239, § 407; I.C.1971, 18-5-10-25,

7 This frustration of the city’s annexation efforts was one of the

reasons for Uni-Gov given by Mayor Lugar in his testimony before the

district court.

*

77 eee

A-46

Burns Ind.Stat.Ann. § 48-722 (1971), limited the remon-

strances against municipal annexations to a few, simple,

fairly objective grounds.

III

[1] The overall issue in this appeal is whether the lim-

ited interdistrict remedy ordered by the district court is

supported by the record and is in accord with the legal prin-

ciples enunciated in Milliken v. Bradley, 418 U.S. 717, 94

S.Ct. 3112, 41 L.Ed.2d 1069 (1974). Subsumed in the issue

are two questions: (1) whether the establishment of Uni-

Gov boundaries without a like reestablishment of IPS

boundaries warrants an interdistrict remedy within Uni-

Gov, and (2) whether the district court correctly enjoined

the Housing Authority of the City of Indianapolis from lo-

cating any additional publicly funded housing projects

within the boundaries of IPS and from renovating any ex-

isting facility for other than the elderly.“

® The school district defendants argue that our mandate limited inquiry

rants an inter-district remedy within Uni-Gov in accordance with

Milliken.” United States v. Board of School Commisioners, 503 F.2d 68,

86 (7th Cir. 1974), cert. denied, 421 U.S. 929, 95 S.Ct. 1654, 44 L. Ed. ad

racially discriminatory use of state housing or zoning laws” by state

officials. Id. at n. 23. We interpret the mandate as sufficiently broad to

- sderati of official inet which bly 1 7

the 1959-1962 Indiana school reorganization program and

tocate any publie housing outside the IPS boundaries.

A7

In our opinion, Milliken 's essential holding is contained

> the following language written by Mr. Chief Justice

urger:

The controlling principle consistent} unded

in our holdings is that the scope of the remedy is de-

termined by the nature and extent of the constitu-

tional violation. Swann v. Charlotie-M ecklenburg

Brd. of Education, 402 U.S. 1, at 16, 91 S. Ct. 1267, at

1276, 28 L.Ed.2d 554. Before the boundaries of sepa-

rate and autonomous school districts may be set

aside by consolidating the separate units for re-

medial purposes or by imposing a cross-district

remedy, it must first be shown that there has been a

constitutional violation within one district that pro-

duces significant segregative effect in another dis-

trict. Spectfically, it must be shown that racially dis-

criminatorꝝ acts of the state or local school districts,

or of a single school district have been a substantial

cause of mterdistrict segregation, Thus an interdis-

trict remedy might be in order where the racially

discriminatory acts of one or more school districts

caused racial segregation in an adjacent district, or

where district lines have been deliberately drawn or.

the basis of race. In such circumstances an interdis-

trict remedy would be appropriate to eliminate the

interdistrict segregation directly caused by the con-

stitutional violation. Conversely, without an inter-

district violation and interdistrict effect, there is no

constitutional wrong calling for an interdistrict rem-

edy. (emphasis added.) Milliken v. Bradley, 418 U.S.

717, 744-45, 94 S.Ct. 3112, 3127, 41 L.Ed.2d 1069.

That holding was further explicated in Hills v. Gautreaua,

425 U.S. 284, 296, 96 S.Ct. 1538, 1545, 47 L.Ed.2d 792 (1976),

where Mr. Justice Stewart wrote:

The Court’s holding that there [Milliken v. Brad-

ley] had to be an interdistrict violation or effect be-

fore a federal court could order the crossing of dis-

trict boundary lines reflected the substantive impact

of a consolidation remedy on separate and inde-

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A-48

school districts. The District Court’s deseg-

regation order in Milliken was held to be an imper-

missible remedy not because it envisioned relief

against a wrongdoer extending beyond the city in

which the violation occurred but because it contem-

plated a judicial decree restructuring the operation

of — governmental entities that were — impli-

cated in any constitutional violation.

In Milliken the majority opinion also noted that, ‘‘[I]n its

present posture, the case does not present any question

concerning possible state housing violations.’’ Milliken v.

Bradley, supra, 418 U.S. at 728, n. 7, 94 S. Ct. at 3119. Mr.

Justice Stewart, in his concurring opinion, explicitly ex-

plained the relevance of housing discrimination as it re-

lates to an interdistrict remedy in school desegregation

cases. Mr. Justice Stewart wrote:

Were it to be shown, for example, that state officials

had contributed to the separation of the races by

drawing or redrawing school district lines, . . . by

transfer of school units between districts, . .. or

urposeful, racially discriminatory use of state

rn. or zoning laws, then a decree calling for

transfer of pupils across district lines or for restruc-

turing of district lines might well be appropriate. Id.

at 755, 94 S. Ct. at 3132.

With these holdings in mind we turn to the issue of Uni-

Gov as it relates to an interdistrict violation.

Although Uni-Gov was a neutral piece of legislation on

its face with its main purpose to efficiently restructure civil

government within Marion County, it cannot be analyzed

in isolation if its impact on school district boundaries is

to be clearly perceived. Rather it must be considered in

conjunction with the two other acts adopted in 1969. (See

supra pp. 1217-1218.)

For some time Mayor Lugar had expressed his desire

to embark on a more aggressive annexation program in

A-49

order to bring a greater part of the urbanized area under

the city’s control. The concept of Uni-Gov was promoted

as a more viable alternative to lengthy annexation litiga-

tion.“ The suburban school corporations and their legisla-

tive representatives were obviously aware that if Uni-Gov

did not pass and the civil city was forced to embark on a

more aggressive annexation program as a last resort to

reorganizing governmental services, IPS boundaries would

automatically extend with the civil city boundaries under

the 1961 Annexation Act.“ In order to a pid this undesired

result Chapter 52, 1969 Acts was enacted sixteen days be-

fore Uni-Gov was adopted. This Act repealed the provision

in the 1961 Act which provided for automatic extension of

school city boundaries with the extension of civil city

boundaries. Chapter 239, 1969 Acts was also adopted,

limiting remonstrances against municipal annexations to

a few, simple, fairly objective grounds.

It must be kept in mind that at this time both the General

Assembly and the suburban school districts knew that this

action was pending in district court. These fail safe“

measures indicated a legislative intent (reflecting local

sentiments) that by one means or aonther the boundaries

of IPS would not expand with those of the civil city. We say

this because a court is entitled to draw reasonable and

logical inferences from probable consequences of changes

in the law and the evident purpose of such changes.

Because, in 1969, 95 percent of the blacks in Marion Coun-

ty lived in the inner city and segregation in its schools was

® Prior city administrations had not strongly pursued civil annexations

and those that had been adopted were being effectively thwarted by

remonstrances in the courts.

10 Under the 1961 Annexation Act the only way to avoid automatic

extension of the school city boundaries, other than by remonstrance, was

by mutual agreement between the acquiring and losing school corporations

that the school city boundaries would not extend with the civil city

boundaries.

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A-50

under attack in federal court, it is clear to us that Uni-

Gov and its companion 1969 legislation were [A] substan-

tial cause of interdistrict segregation.’’ Milliken v. Brad-

ley, 418 U.S. 717, 745, 94 S.Ct. 3112, 3127, 41 L.Ed.2d 1069

(1974), and ‘‘[C]ontributed to the separation of the races

by . . . redrawing school district lines. Id. at 755,

94 S8. Ot. at 3132. (Stewart, J., concurring).

[2,3] The General Assembly, under both federal law as

expressed in Brown v. Board of Education, 349 U.S. 294,

75 S.Ct. 753, 99 L.Ed. 1083 (1955), and in Green v. County

School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716

(1968), and Indiana law as expressed in Acts 1949, ch. 186,

§§ 1-6, 8, as amended Acts 1973, P.L. 218, §1; I. C. 1971,

20-8.1-2-1—20-8.1-2-7, Burns Ind.Stat.Ann. § 28-5304 (1971),

had an obligation to alleviate the segregated condition in

IPS. The record fails to show any compelling state interest

that would have justified the failure to include IPS in the

Uni-Gov legislation. The desirability for a unitary civil gov-

ernment should not have precluded the General Assembly

from considering the needs of the school system in its deci-

sion to enact Uni-Gov. As we noted earlier, the most sub-

stantial reasons advanced against the consolidation of the

schools in Marion County when it was under consideration

in 1959 were that a consolidated school district would be

large, with consequent loss of citizen participation, and that

it would increase taxes. These considerations, although

apparently not racially motivated, cannot justify legisla-

tion that has an obvious racial segregative impact. Admin-

istrative convenience cannot be a justification for violating

the Equal Protection Clause. The district court correctly

observed, ‘‘When the General Assembly expressly elimi-

nated the schools from consideration under Uni-Gov, it

signaled its lack of concern with the whole problem and thus

inhibited desegregation with [sic] IPS.“

A-51

In summary, we are convinced that the essential findings

for an interdistrict remedy found lacking in Milliken are

supplied by the record in the instant case. In Milliken the

Supreme Court noted that the Detroit school boundaries

were coterminous with the civil city boundaries and

‘(Were established over a century ago by neutral legis-

lation. Milliken v. Bradley, 418 U.S. 717, 748, 94 S.Ct.

3112, 3129, 41 L.Ed.2d 1069 (1974). The Court also ob-

served the district court did not find that the segregative

acts within Detroit effected segregation within the other

districts. Id. at 721, 94 S.Ct. 3112. Furthermore, the sub-

urban school districts had not participated in the proceed-

ings, id. at 722, 94 S.Ct. 3112, and finally, there had been

no evidence of any racially discriminatory acts of the state

which had been substantial causes of interdistrict segrega-

tion, id. at 745, 94 S. Ct. 3112. The remedy chosen by the dis-

trict court required a consolidation of fifty-four districts

into a vast new super school district,’’ id. at 743, 94 S.Ct.

at 3126.

Indianapolis presents an entirely different situation. The

Indianapolis Legislature acted directly in passing Uni-Gov,

thereby creating the existing situation which confines black

students within IPS. Moreover, the suburban governmental

units made it politically expedient that Uni-Gov not include

the schools.

[4] In this case we are dealing with a situation in which

but for certain events chargeable to the state, Marion Coun-

ty would be either a consolidated school district under the

1959 School Reorganization Act or IPS would have been ex-

panded with the civil city of Indianapolis under Uni-Gov.

In this context there is nothing talismanic about the word

„ distriet“, for school district lines are not sacrosanct.

Milliken, supra at 744, 94 S.Ct. 3112. The following hypo-

theticals are helpful in analyzing the problem.

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A-52

(a) City A has one school district, coterminous

with City A. The Government brings a suit, alleg-

ing de jure segregation in the city schools, particu-

larly in the northeast portion of the city. The

defendant school board agrees that the northeast

portion of the city must be desegregated, but argues

that a districtwide remedy is unnecessary, that is,

that only the schools in the northeastern portion of

City A need be affected. On these facts, Keyes v.

School District No. 1, 413 U.S. 189, 208, 93 S.Ct. 2686,

37 L.Ed.2d 548 (1973), would control.

(b) City B has one school district that is cotermi-

nous with city boundaries. Perhaps fearing an im-

pending desegregation suit, City B decides to con-

tract its school district boundaries so that the school

district encompasses the bulk of the central city

while the outlying areas of the city organize their

own school districts. On these facts, no federal court

in a desegregation suit would hesitate in ordering

the crossing of district lines to effect a remedy.

(c) City C decides to expand its boundaries and

annexes the suburbs surrounding it into a unitary

civil government. However, it retains its school dis-

trict boundaries, previously coterminous with its

former city boundaries. In every other respect it

provides full city services in and exercises full city

authority over the newly acquired territory. These

facts are analogous to those of the case at bar. In

the event of a meritorious desegregation suit in hy-

pothetical City C, a district court could properly or-

der an inter-district remedy under Milliken.

There is no dispute that a school district may not contract

its territory in order to avoid desegregation. Cf. Wright v.

Council of City of Emporia, 407 U.S. 451, 92 S.Ct. 2196,

33 L.Ed.2d 51 (1972). Conversely, a city should not be per-

mitted to extend its boundaries in order to avoid desegre-

gation.

Evans v. Buchanan, 393 F.Supp. 428 (D.Del.1975), af d,

423 U.S. 963, 96 S.Ct. 381, 46 L.Ed.2d 293 (1975), is a case

A-53

which is factually analogous to the instant case in many

respects and in accord with Milliken. In Evans the district

court had to consider the segregative effects of the Educa-

tion Advancement Act of 1968, a Delaware school reor-

ganization statute, which explicitly excluded the Wilming-

ton district from a general reorganization of Delaware

school districts. Although the district court concluded that

the provisions excluding the Wilmington district from

school reorganization were not purposefully, racially dis-

criminatory, this did not end its inquiry. The court noted,

„Statutes that do not explicitly deal with race but have a

pronounced racial effect, . . can also establish suspect

racial classifications.’’ Evans v. Buchanan, supra at 441. It

further stated that ‘‘[W]here a statute, either explicitly or

effectively, makes the goals of a racial minority more dif-

ficult to achieve than other related governmental interests,

the statute embodies a suspect racial classification and re-

quires a particularly strong justification.’’ Id. The court

therefore held that the Education Advancement Act, al-

though racially neutral on its face, ‘‘{H]ad a significant

racial impact on the policies of the State Board of Educa-

tion, . . id. at 442-443, and thereby constituted a suspect

classification. In effect, the statute prevented a predomi-

nantly black school district from being reorganized with a

predominantly white suburban school district while other

districts in the state were able to consolidate. The court

finally concluded that Neither .. interest in preserv-

ing a historic school district boundary, nor the interest in

maintaining districts with enrollments below 12,000

id. at 445, was a compelling state interest and did not justi-

fy the exclusion of Wilmington in the Education Advance-

ment Act. On this basis the district court ordered an inter-

district remedy. The Supreme Court summarily affirmed.

In light of the above we find that the limited interdistrict

remedy ordered by the district court was proper.

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4-54

IV

We now turn to the housing issue. As we stated above

95 percent of the black residents of Marion County live in

the inner city. Surrounding the inner city are suburbs pop-

ulated largely by white residents. This phenomenon may

have many causes, but we think the district judge was cor-

rect in finding as the primary reason discrimination in the

availability of housing opportunities for blacks in the sub-

urbs. We are in agreement with Judge Dillin’s statement:

Although it is undoubtedly true that many factors

enter into demographic patterns, there can be little

doubt that the principal factor which has caused

members of the Negro race to be confined to living in

certain limited areas (commonly called ghettos) in

the urban centers in the north, including Indianap-

olis, has been racial discrimination in housing which

has prevented them from living any place else.

United States v. Board of School Commissioners,

368 F.Supp. 1191, 1204 (S.D.Ind.1973).

Although the Housing Authority had jurisdiction outside

the IPS boundaries, it did not locate any of the public

housing projects in that territory. Instead, all ten of the

public housing projects whose occupancy is 98 percent black

were located within IPS. It is obvious that there is a close

relationship between the racial balance in housing and the

racial balance in schools. As Judge Dillin found in his 1971

opinion, Low- rent housing projects within the School City

have significantly affected the racial composition of the

schools.“ United States v. Board of School Commissioners,

332 F.Supp. 655, 673 (S.D.Ind.1971). He reaffirmed this in

his most recent decision, ‘‘The location of these housing

projects by instrumentalities of the State of Indiana has

obviously tended to cause and to perpetuate the segregation

of black pupils in IPS territory.“ The record supports

these findings and clearly shows a ‘‘ purposeful, racially dis-

criminatory use of state housing. Milliken v. Bradley, 418

A-55

U.S. 717, 755, 94 S.Ct. 3112, 3132, 41 L.Ed.2d 1069 (1974)

(Stewart, J., concurring). The Government’s statement in

its brief supports this view:

Given that a disproportionate number of blacks are

both in low income categories and were already con-

centrated in IPS and considering the predominantly

black composition of the pool of applicants for the

H. A. C. I. low-income housing projects, it is a rea-

sonable inference that this action would and did

have a further impact upon the racial compositions

of schools and school districts in Marion County.

15] The Housing Authority contends the district court

had no authority to enjoin it from building additional pub-

lic housing within IPS and from renovating Lockefield

Gardens for other than the elderly because the court could

not lawfully find a constitutional violation by HACI in

confining its housing projects to IPS territory. The evi-

dence presented above, however, is to the contrary.

By locating its projects within IPS and in many cases

near all black neighborhoods, the Housing Authority sig-

nificantly contributed to the disparity in residential and

school populations between the inner city and the suburbs.

Its acts produced discriminatory effects both within IPS

and the suburbs. The relief ordered by the district court

was directed to correcting the effects of those past dis-

criminatory acts. Accordingly, the district court did not

abuse its discretion in enjoining the Housing Authority

from building additional projects within IPS. That part of

the injunction that relates to Lockefield Gardens was also

proper since permitting it to be used for family housing,

where school children are undoubtedly involved, would

only further aggravate the school segregation problem.

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