# Petition — Bowen v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1004%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 824 ## Text 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 | ! | | 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 uni [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1004%3A1. Public record. Not legal advice.