Petition — Dayton Board of Education v. Brinkman

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KODAK, JR. CLERK |

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

DAYTON BOARD OF EDUCATION,

WILLIAM E, GOODWIN,

JOSEPHINE GROFF and

JAMES D. HART,

Petitioners,

Vv.

MARK BRINKMAN,

PATTY BRINKMAN and

PHILLIP BRINKMAN,

° By Their Mother and Next Friend, Donna

Brinkman, et al.,

(Additional Respondents Inside Cover)

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DAVID C. GREER

LEO F. KREBS

BEISER, GREER & LANDIS

of counsel

600 First National Bank Building

Dayton, Ohio 45402

Counsel for Petitioners

COURT INDEX PRESS, INC. — 215 E. Ninth Street, Cincinnati, Ohio 45202 — (513) 241-1450

Additional Respondents:

Jesse Montague, Jr. and Debbora Montague,

by their Mother and Next friend, Arva Montague;

Debbora Mitchell,

by her Father and Next Friend, John Mitchell;

Robbin J. Kent, Michael J. Kent and Leslie A. Kent,

by their Father and Next Friend Henry K. Kent;

Claudius R. Walker, Frserieea M. Walker and Bernice L.

Walker, by their Father and Next Friend, C. R. Walker, Jr.;

Rubin Atitia Jackson and Lahmarie Jackson,

by their Mother and Next Friend, Winona Jackson;

National Association for the Advancement of Colored People;

John J. Gilligan, Governor of the State of Ohio, ete.;

William J. Brown,

Attorney Generel of the State of Ohio;

Ohio State Board of Education;

Martin W. Essex, Superintendent of Public Instruction,

Ohio Department of Education;

Terry Lawson;

Leo A. Lucas;

Jane Sterzer;

Wayne M. Carle,

Superintendent of Dayton School District.

I. OPINIONS BELOW

Il. JURISDICTION

Ift.

TABLE OF CONTENTS

QUESTIONS PRESENTED

In A School Desegregation Case Is A Finding

Of A Systemwide Violation Justified By The

Application Of Judicially Created Presump-

tions Of Systemwide And Continuing Intent

and Effect To Proof Of Isolated Segregative

Practices That Had Been Eliminated From

The School System Long Before Suit Was

Ree rent pee er eT Tepe

Is The Effect Of Board Actions, Viewed

Under A Natural And Foreseeable Result

Test, Sufficient To Establish Segregative

Intent In A School Desegregation Case? ...

Once Constitutional Violations Have Been

Established In A School Desegregation Case,

Is The Imposition Of A Systemwide Racial

Balance Plan Justified In The Absence Of

Proof That Such A Plan Reasonably Approx-

imates The Racial Distribution of School

Population That Would Have Occurred In

The Absence of Such Violations? .........

Is The Imposition of Any Remedy In A

School Desegregation Case Justified In The

Absence Of Proof That Any Of The Plain-

tiffs Bringing The Action Had Been Injured

Or That The Action Is Maintainable As A

Re, Ch a ee We se sews 6

oe ee Se eee ee eae Ae of ee ee a

IV.

CONSTITUTIONAL AND STATUTORY PRO-

VESIONS ENVGR WEE? 5 .25555snneete oeees 3

REASONS FOR GRANTING THE WRIT ....... 7

A. The Sixth Circuit’s Adoption Of Legal Pre-

sumptions Of Systemwide And Continuing

Segregative Intent And Effect From Isolated

Practices That Existed Before Brown I And

That Had Been Eliminated Long Before

Initiation Of This Desegreation Action Is

In Conflict With Kawi. ...00 55. <d.ccnecs tases 8

1. The Sixth Circuit Adopted An Erroneous

Standard Of Assessing Evidence In De-

segregation Cases When It Attached A

Pivotal And Determinative Significance

To Conditions In 1954. ................ 9

2. The Sixth Circuit Adopted An Erroneous

Standard of Assessing Evidence In De-

segregation Cases When It Applied Arti-

ficial Presumptions of Intent and Effect

To Impose An Impossible Burden Of

Proof On The School Board In The Ab-

sence Of A Showing That At The Time

Of Suit There Was Purposeful State-

Imposed Segregation In A Substantial

Portion Of The School System. .......... ll

B. The Use Of A Natural And Foreseeable

Result Test To Determine Segregative Intent

Conflicts With Washington v. Davis, Arling-

ton Heights And Dayton. .................. 13

VII.

CONCLUSION

mi.

C. The Imposition Of A Systemwide Racial Bal-

ance Plan In The Absence Of Proof That

Such A Plan Reasonably Approximates The

Racial Distribution Of Student Population

That Would Have Occurred In The Absence

Of A Constitutional Violation Is Contrary

To The Holdings Announced in Dayton. ...... 15

1. The Sixth Circuit Misconstrued The Re-

quirement Of Establishing Incremental

Segregative Effect In Desegregation

Cases And Misplaced The Burden of

ee ee ee ea Sead ces ee 16

2. The Sixth Circuit Adopted An Erroneous

Remedial Standard Which Imposes Upon

A School Board An Affirmative Duty To

Diffuse Black And White Students

Throughout The School System Without

Regard To The Distribution of Students

That Would Have Taken Place In The

Absence of Constitutional Violations. .... 18

Imposition Of A Remedy Where There Is A

Failure To Prove Standing Is Contrary To

Established Judicial Precedent. .............. 20

7: Ss

SOoZEF Ra =

iv,

INDEX TO APPENDIX

Page

Findings Of Fact And Opinion Of Law Of District

Court Dated February 7, 1973 .................. la

Supplemental Opinion On Remedy Of District

Court Dated July 13, 1973 ..................... 26a

Opinion Of Court Of Appeals Dated August 20,

copy SEE IA Foes UIE FRG rae Ie open ae 32a

Order Of District Court Relating To Submission

Of Plan Dated January 7, 1975 .................. 70a

Order Of District Court Adopting Plan Of Dayton

Board Of Education Dated March 10, 1975 ...... 73a

Opinion Of Court Of Appeals Dated June 24,1975... 89a

Remand Judgment Of Court Of Appeals Dated

cn ba cg ERSTE Ope mtr LC LS 97a

Order Of District Court of December 29,1975 .... 99a

Judgment Of District Court of December 29, 1975 107a

Order Of District Court of March 23, 1976 ...... 110a

Judgment Of District Court of March 25, 1976 .... 1l4a

Order Of District Court of May 14, 1976 :....... 117a

Opinion Of Court Of Appeals Dated July 26, 1976 .. 118a

Opinion Of Supreme Court Dated June 27, 1977 .. 124a

Findings Of Fact And Conclusions Of Law of

District Court Dated December 15, 1977 ........ 142a

Opinion Of Court Of Appeals Dated July 27, 1978 189a

Vv.

CITATIONS

Cases: Page

Austin Independent School District v. United States,

429 U.S. 990 (1976) Goce dmas eek ae eae 15, 19

Bailey v. Patterson, 369 U.S. 31 (1962) ........--.+-. 21

Bradley v. Milliken, 519 F.2d 679 (6th Cir. 1975) .... 24

Brennan v. Armstrong, 483 U.S. 672 (1977) .......--. 25

Brinkman v. Gilligan, 503 F.2d 684 (6th Cir. 1974) ;

(Dayton 1) ...... cece cece nee c ee eee e nee eenceeees

Brinkman v. Gilligan, 518 F.2d 853 (6th Cir. 1975)

{Beiies Yoo. ssh cea 2

Brinkman v. Gilligan, 539 F.2d 1084 (6th Cir. 1976)

(Dayton III), vacated and remanded sub nom.,

Dayton Board of Education v. Brinkman, 433 U.S. :

406 (1977)... ccc cece eee cece nee e ence ee eeeaeees

Brinkman v. Gilligan, Civil No. 78-3060 (6th Cir.

filed July 27, 1978) (Dayton IV) ........++-+++++5: 2

Brown v. Board of Education, 347 U.S. 483 (1954) P

(Brown 1) 2... cece ccccccsccccccecccceecerceees

Columbus Board of Education v. Penick, No. A-124

(S.Ct. filed August 11, 1978, J. Rehnquist, on appli-

cation for stay) ......... cece cece cece eeeeeeeees 8-9

Davis v. Schultz, 453 F.2d 497 (3rd Cir. 1971) ........ 21

Dayton Board of Education v. Brinkman, 433 U.S. |

406, 97 S.Ct. 2766 (1977) (Dayton) ..........-- ee

Hart v. Community School Board, 512 F.2d 37 (2nd ‘eo

oe | Peererrerrr rer rrr tt ert.

Kauffman v. Dreyfus Fund, Inc., 434 F.2d 727 (3rd

Cir. 1970), cert. denied, 401 U.S. 974 (1971) .... 21

VI.

Keyes v. School District No. 1, Denver, Colorado,

i+ is Se Fe | | ePeerr errr eerie ere cee 10

N.A.A.C.P. v. Lansing Board of Education, 559 F.2d

1042 (6th Cir.), cert. denied, 434 U.S. 997 (1977) .. 25

O’Shea v. Littleton, 414 U.S. 488 (1974) ............ 21

Pasadena City Board of Education v. Spangler, 427

Oe, Fe CO is Vaden Scenes cies Bake 21

School District of Omaha v. United States, 433 U.S.

eo: , BRneNre CEE e ge hn aren een 25

Soria v. Oxnard School District Board of Trustees,

488 F.2d 579 (9th Cir. 1973), cert. denied 416 U.S.

OBE LI hig cov dasind 454440550 per ee anes 25

Swann v. Charlotte-Mecklenburg Board of Education,

Be Be Ey: | Sa cre ree here eae 20

United States v. School District of Omaha, 565 F.2d

127 (8th Cir. 1977), cert. denied, — U.S. — (1978) .. 25

Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977) .. 13, 14, 21

Washington v. Davis, 426 U.S. 229 (1976) ........ 13, 14

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

DAYTON BOARD OF EDUCATION,

WILLIAM E. GOODWIN,

JOSEPHINE GROFF and

JAMES D. HART,

Petitioners,

Vv.

MARK BRINKMAN,

PATTY BRINKMAN and

PHILLIP BRINKMAN,

Bv Their Mother and Next Friend, Donna

Brinkman, et al.,

Respondents.

United States Constitution: PETITION FOR A WRIT OF CERTIORARI TO THE >

Woaseias Anadadiabed <0. 55. ov ovidek so hdaceaces 3 UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Statutes:

OP UE BREE) inks Hiei is eee 2

ae er RR ES. el es Sere 3 The petitioners Dayton Board of Education; an individual

S Board member, William E. Goodwin; and two former Board

GD RE a i ans 6 i's 000d auntie sips 4 members, Josephine Groff and James D. Hart, pray that a

ae tht ee yee 1 writ of certiorari issue to review the judgment and opinion

5s Gentile tide A 4 of the United States Court of Appeals for the Sixth Circuit

entered on July 27, 1978.

I. OPINIONS BELOW

The opinion of the Court of Appeals, entered on July 27,

1978 and not yet reported (Dayton IV), appears in the ap-

pendix to this petition (App. 189a) as does the unreported

opinion of the District Court which was entered on De-

cember 15, 1977 (App. 142a).

The June 27, 1977 opinion of this Court remanding the

action to the District Court is reported at 433 U.S. 406

(1977) (Dayton). The three previous opinions of the Sixth

Circuit in Brinkman v. Gilligan are reported at 539 F.2d 1084

(1976) (Dayton III), vacated and remanded sub nom., Dayton

Board of Education v. Brinkman, 433 U.S. 406 (1977); 518

F.2d 853 (1975) (Dayton II); and 503 F.2d 684 (1974) (Day-

ton I).

II, JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

III. QUESTIONS PRESENTED

A. In A School Desegregation Case Is A Finding Of A Sys-

temwide Violation Justified By The Application Of Ju-

dicially Created Presumptions Of Systemwide And

Continuing Intent And Effect To Proof Of Isolated Seg-

regative Practices That Had Been Eliminated From The

School System Long Before Suit Was Filed?

B. Is The Effect Of Board Actions, Viewed Under A Natural

And Foreseeable Result Test, Sufficient To Establish Seg.

regative Intent In A School Desegregation Case?

C. Once Constitutional Violations Have Been Established In

A School Desegregation Case, Is The Imposition Of A

Systemwide Racial Balance Plan Justified In The Absence

Of Proof That Such A Plan Reasonably Approximates The

Se ee

Racial Distribution Of School Population That Would

Have Occurred In The Absence Of Such Violations?

D. Is The Imposition Of Any Remedy In A School Desegre-

gation Case Justified In The Absence Of Proof That Any

Of The Plaintiffs Bringing The Action Had Been Injured

Or That The Action Is Maintainable As A Class Action?

IV. CONSTITUTIONAL, AND STATUTORY

PROVISIONS INVOLVED

A. Fourteenth Amendment To the United States Consti-

tution, Section 1:

. nor shall any such State . . . deny to any person

within its jurisdiction the equal protection of the law.”

B. United States Code, Title 28:

§ 1343. Civil rights and elective franchise

The district courts shall have original jurisdiction of

any civil action authorized by law to be commenced by

any person:

(1) To recover damages for injury to his person or

property, or because of the deprivation of any right or

privilege of a citizen of the United States, by any act

done in furtherance of any conspiracy mentioned in sec-

tion 1985 of Title 42;

(2) To reco,er damages from any person who fails to

prevent or to aid in preventing any wrongs mentioned in

section 1985 of Title 42 which he had knowledge were

about to occur and power to prevent;

(3) To redress the deprivation, under color of any

State law, statute, ordinance, regulation, custom or usage,

of any right, privilege or immunity secured by the Con-

stitution of the United States or by any Act of Congress

providing for equal rights of citizens or of all persons

within the jurisdiction of the United States;

(4) To recover damages or to secure equitable or

other relief under any Act of Congress providing for the

protection of civil rights, including the right to vote.

C. United States Code, Title 42:

§ 1981. Equal rights under the law

All persons within the jurisdiction of the United States

shall have the same right in every State and Territory to

make and enforce contracts, to sue, be parties, give evi-

dence, and to the full and equal benefit of all laws and

proceedings for the security of persons and property as

is enjoyed by white citizens, and shall be subject to like

punishment, pains, penalties, taxes, licenses, and exac-

tions of every kind, and to no other.

§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory, subjects, or causes to be subjected, any citizen

of the United States or other person within the jurisdic-

tion thereof to the deprivation of any rights, privileges,

or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress.

D. Ohio Revised Code, Chapter 33:

§ 3313.48 Free Education To Be Provided; Minimum

School Year.

The Board of Education of each city, exempted village,

local and joint vocational school district shall provide

for the free education of the youth of school age within

the district under its jurisdiction at such places as will

be most convenient for the attendance of the largest

number thereof.

Vv. STATEMENT OF THE CASE

The history of this litigation during the period from its

inception on April 17, 1972 until the decision rendered by this

Court on June 27, 1977 is set forth in Dayton Board of Edu-

cation v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766 (1977)

(Dayton). On remand, pursuant to this Court’s directive, the

District Court conducted evidentiary hearings which com-

menced on November 1, 1977. Considering all of the evi-

dence presented at the various trials and hearings of this

action in the light of the principles established by this Court

the District Court concluded that the plaintiffs had failed

to establish a right to relief. On December 15, 1977 it ac-

cordingly entered an order dismissing the plaintiff's complaint

(App. 188a).

The District Court based its order on a detailed series of

findings of fact and conclusions of law (App. 142-188a). In

considering historica! isolated incidents of constitutional vio-

lations it found that there was no proof of any incremental

segregative effect from such actions (App. 147-149a), Exist-

ing racial imbalance was not found to be a result of any

intentional segregative act or acts on the part of the Dayton

Board, but rather the simple reflection of residential living

patterns in the geographic area served by the school syst

(App. 149-150a). y ol system

Faculty assignment and hiring practices were reviewed.

While such practices involved purposeful separation of teach-

ers by race until 1951, all vestiges of these earlier practices

had disappeared by 1969 — some three years before this liti-

gation was instituted (App. 153a). Moreover, these earlier

practices were specifically found not to have had any incre-

mental segregative effect (App. 154a). The Trial Court. on

the basis of the evidence, found that racial identifiability of

schools was determined by their student composition and

not by faculty assignment (App. 153-154a).

Attendance zones were held not to have been created

with any discriminatory intent (App. 155a). Transfer policies

were found to be non-discriminatory with the exception of

a practice of transfers involving Shawen Acres Orphanage stu-

dents — a practice which ceased in the early 1950’s and which

was held not to have had any incremental segregative effect

(App. 158-159a). Site selection, construction, uses of porta-

bles and school utilization practices were found not to have

involved any intent to discriminate and not to have had any

incremental segregative effect (App. 173-180a).

Although Dunbar High School was established as a volun-

tary black school in 1933, the census data established that

Duuabar would have been all black by 1960 even if it had

not been a school for voluntary attendance (App. 169-171a).

Establishment of the old Dunbar High School was accordingly

held not to have had any incremental effect on the situation

existing in the school system when suit was filed in 1972.

The Trial Court further found that there was no segregative

intent with respect to the creation of the new Dunbar High

Scxool in 1962 (App. 171a).

The one adverse finding made in the previous decision of

the District Court — the maintenance of optional attendance

zones between contiguous schools throughout the district —

was reexamined in the light of additional evidence presented

at the hearings following the remand. The evidence demon-

strated neither segregative intent nor segregative effect in the

establishment and maintenance of optional zones (App. 162-

169a).

As was confessed by one of the experts called by the plain-

tiffs at the post-remand hearings, the Dayton Board had really

done nothing to separate the races for at least two decades be-

fore this case came to trial (TR. 2: 1027). As an official

of the plaintiff NAACP admitted, the worst thing that can

be said in retrospect about the Dayton schools is that they

reflect the racial imbalance of the geographic neighborhoods

they serve (TR. 2: 1036-1042a).

After the dismissal of their complaint, the plaintiffs filed

a notice of appeal to the Sixth Circuit Court of Appeals. On

January 16, 1978 the Sixth Circuit issued a stay order holding

in effect pending appeal the systemwide racial balance plan

which had been imposed prior to this Court’s decision in

Dayton. On June 27, 1978 the Sixth Circuit reversed the

District Court’s dismissal of the case, and it entered a final

order reinstating the systemwide racial balance plan (App.

217a). Applications for a stay were denied, and students in

the Dayton system are still being transported to distant

school buildings under a plan that cannot stand under the

facts presented and the constitutional principles applicable to

those facts.

VI. REASONS FOR GRANTING THE WRIT

{n its prior opinion this Court expressed the view that,

while this case raises issues important to the law of desegre-

gation, it “is every bit as important for the issues it raises

as to the proper allocation of functions between the district

courts and the courts of appeals within the federal judicial

system.” Dayton Board of Education v. Brinkman, 433 U.S.

406, 97 S.Ct. 2766, 2770 (1977). That statement was not

only accurate; it was prophetic. Indeed, it is necessary to

broaden the statement at this point to encompass the alloca-

tion of functions between the Supreme Court and the courts

of appeals as well as between the courts of appeals and the

district courts.

Having been reversed by this Court, the Sixth Circuit pro-

ceeded at its first opportunity to ignore and distort the con-

stitutional principles which have been carefully delineated

by this Court and to construct a whole new jurisprudence of

desegregation. If each of the circuits in our federal system

is free to rewrite the law applicable to desegregation cases

according to its own independent concept of what that law

should be, there is no reason for this Court to grant a writ

of certiorari. If inferior federal courts lack the right to secede

from the federal judicial system, however, then a writ of

certiorari must be granted in order to permit this Court to

eradicate the doctrinal aberrations that have been devised

by the Sixth Circuit with the aim of achieving a desired re-

sult of systemwide racial balance without regard to the facts

determined by the District Court or to the law determined by

this Court.

A. The Sixth Circuit’s Adoption Of Legal Presumptions

Of Systemwide And Continuing Segregative Intent

And Effect From Isolated Practices That Existed Be-

fore Brown I And That Had Been Eliminated Long

Before Initiation Of This Desegregation Action Is In

Conflict With Keyes.

The efforts of the Sixth Circuit to rewrite the law of de-

segregation in this action have already elicited the following

comments from one Justice of this Court:

“.. The Sixth Circuit has misinterpreted the mandate

of this Court’s Dayton opinion.”

“. . . The Sixth Circuit . . . evidenced an unduly grudg-

ing application of Dayton.”

“The Sixth Circuit is apparently of the opinion the pre-

sumptions in combination with such isolated violations,

can be used to justify a systemwide remedy where such

a remedy would not be warranted by the incremental seg-

regative effect of the identified violations. That is cer-

tainly not my reading of Dayton and appears inconsistent

with this Court’s decision to vacate and remand the Sixth

Circuit’s opinion in Dayton III.”

Columbus Board of Education vy. Penick, No. A-124 (S.Ct.

filed August 11, 1978, J. Rehnquist, on application for stay).

Since the author of these words was also the author of this

Court’s opinion in Dayton, his interpretation of that opinion

should be accorded considerable weight. An analysis of the

ways in which the Sixth Circuit has distorted and displaced

prior applicable decisions of this Court should justify Mr.

Justice Rehnquist’s prediction that at least four justices would

vote to grant certiorari in this action.

1. The Sixth Circuit Adopted An Erroneous

Standard Of Assessing Evidence In Desegrega-

tion Cases When It Attached A Pivotal And

Determinative Significance To Conditions In

1954.

At the core of the Sixth Circuit’s decision is an adoption

of what might be called the “poison in the well” theory. If

there were any segregative practices extant in a school system

in 1954 when this Court’s historic decision in Brown v. Board

of Education was rendered, an affirmative duty arose on the

part of the school board to achieve a racial balance of students

throughout the system. Judicially created presumptions of

systemwide and continuing intent and effect may then be

applied to place upon the board a burden of proof that

can only be satisfied by a showing that it had achieved

a racial balance of students throughout the system at the time

suit was filed. If such a balance has not been achieved by

board action, the only way of removing the poison from the

well is by imposing such a balance by a federal court decree.

This novel approach was first suggested in the amicus brief

filed by the Department of Justice in Dayton, and it was

picked up by the plaintiffs in the oral arguments presented

in that case. It was tacitly rejected by this Court in Dayton,

and it represents a complete inversion of prior decisions of this

Court. In order to establish de jure segregation, the plain-

tiffs in this case or any other case are required to prove a

current condition of segregation resulting from intentional

state action. Keyes v. School District No. 1, Denver, Colorado,

413 U.S. 189, 205 (1973). Historical background is relevant

only to the extent it sheds light on the question whether

a current condition of state-imposed segregation exists. Ibid.

The cart-before-the-horse approach of the Sixth Circuit is in

direct conflict with this Court’s opinion in Keyes. Whether

suit is filed in 1964, 1974 or 2054, the focus of judicial atten-

tion should be on the conditions existing at the time of suit

rather than ten, twenty or one hundred years earlier. By

shifting the focus from present to past and with the aid of un-

supported presumptions that pre-Brown I acts affected the en-

tire system, the Sixth Circuit concluded that the Dayton Board

was operating a dual system in 1954 and was under a duty to

desegregate its schools for the following twenty-four years

(App. 194a, 205a, 213a). This conclusion was further ex-

acerbated by the reviewing court’s imposition on the defendant

board of the burden of proving the negative propositions not

only that all of its post-1954 acts were free of segregative

intent, but also that the racial imbalance existing when suit

was filed in April of 1972 was not caused by unlawful seg-

regative design (App. 205-206a).

It is tempting to engage in a quarrel over the Sixth Cir-

cuit’s analysis of the pre-1954 evidence. For example, it is

difficult to square the label “dual system” with a situation

which involved in 1954 some fifty per cent of black students

attending racially mixed rather than all black schools (See

Deft’s Exhibit AU). It is the doctrinal aberration created by

the Sixth Circuit, however, which compels the attention of

this Court and justifies the granting of a writ of certiorari in

this case. The rule of Keyes should not be subverted, and

historical background should not be transmogrified into a

determinative focus in order to produce a desired result

through artificial presumptions and shifting burdens.

2. The Sixth Circuit Adopted An Erroneous

Standard Of Assessing Evidence In Desegre-

gation Cases When It Applied Artificial Pre-

sumptions Of Intent And Effect To Impose An

Impossible Burden Of Proof On The School

Board In The Absence Of A Showing That At

The Time Of Suit There Was Purposeful

State-Imposed Segregation In A Substantial

Portion Of The School System.

Having abandoned the doctrinal focus on a current con-

dition of state-imposed segregation in favor of its “poison in

the 1954 well” theory, the Sixth Circuit proceeded to make

two other fundamental errors which serve to make a decision

in favor of a school board impossible in this or any other

case. These errors will be analyzed in detail in succeeding

sections of this petition. They require mention here be-

cause of the role they play in creating the artificial presump-

tions and reversed burdens which are the props on which rest

the Sixth Circuit’s findings on liability.

First, the Court rendered “effect” synonymous with “in-

tent” insofar as determining the presence of constitutional vi-

olations is concerned. Next, it expressed the view that the

Dayton Board in 1954 had an affirmative duty not simply

to remedy the effects of past segregative practices, but “to

diffuse black and white students throughout the Dayton

school system” (App. 212a).

If segregative practices in 1954 impose an affirmative duty

to diffuse black and white students throughout a school sys-

tem, then it is obvious that anything less than such a dif-

fusion can only be the result of a breach of that duty. If

“effect” is synonymous with “intent,” then such a breach must

be considered intentional. Since the duty to diffuse applies

to the entire system, every act or omission is presumed to

have a systemwide effect. The school system is perceived

as a seamless web which vibrates in all its reaches whenever

any part is touched. Thus, the fact that there were four all

black schools in 1954 is presumed to have a segregative effect

on all schools in the system.

The fact that black and white students were not diffused

throughout the system creates a presumption of continuing

effect. Since “the relevant inquiry is whether at the time

of Brown I, or any time thereafter, defendants were operating

a dual school system” as defined by the Sixth Circuit, a finding

of segregative practices with effects that lingered in 1954

shifts the burden of proof to the School Board regardless of

what the situation may have been eighteen years later when

suit was filed. (See App. 202-205a). The burden becomes

one of demonstrating diffusion. It cannot be satisfied in this

or in any other desegregation case because the demographics

of population distribution will simply not produce such a

diffusion.

The judicial manipulation of isolated and long-abandoned

segregative practices into a conclusion of a current system-

wide constitutional violation defies common sense and con-

flicts with the controlling decisions of this Court. A pre-

sumption may be defined as an inference as to the truth of a

proposition based on probable reasoning in the absence of ac-

tual proof or disproof. It serves no other purpose in the de-

termination of litigation, and if it is not based on probable

reasoning it does not deserve to be adopted as a presumption.

To conclude, as does the Sixth Circuit, that intent and

effect are synonymous does not accord with probable reason-

ing; the surgeon does not intend to kill.the patient who dies

while undergoing the operation that carries a risk of mortality.

To conclude, as does the Sixth Circuit, that every isolated

segregative act has a systemwide and continuing effect does

not accord with probable reasoning; much of the historical

evidence in this case was buried beyond the reach of memory

until dredged up by the plaintiffs for forensic purposes. To

conclude, as does the Sixth Circuit, that in the absence of con-

stitutional violations black and white students would be dif-

fused throughout the Dayton school system does not accord

with probable reasoning; indeed, the record contains evi-

dence indicating that the distribution of students that existed

in the system when suit was filed would have been the same

even if every action of the Board in the last seventy-eight

years had been racially neutral by 1978 standards.

The “presumptions” employed by the Sixth Circuit are

not “presumptions” in the legal sense of that term; they are

simply artificial tools employed to rationalize a desired re-

sult. Unless this Court accepts jurisdiction, a precedent will

have been established which not only conflicts with the lead-

ing desegregation decisions issued by this Court, but also

requires with scant regard for evidence a finding of con-

stitutional violations in any school desegregation case that

could conceivably be filed anywhere in this country.

B. The Use Of A Natural And Foreseeable Result Test

To Determine Segregative Intent Conflicts With

Washington v. Davis, Arlington Heights And Dayton.

The Sixth Circuit’s decision in this case is not only in di-

rect conflict with this Court’s decision in Keyes; it is also

in direct conflict with this Court’s decisions in Washington

v. Davis, 426 U.S. 229 (1976), and Village of Arlington Heights

v. Metropolitan Housing Development Corp., 429 U.S. 252

(1977).

In remanding Dayton this Court specifically directed the

District Court to make new findings in light of the discrimina-

tory intent requirements set forth in those decisions. 433 U.S.

at —, App. at 136-137a. In compliance with this remand order,

the District Court made a detailed analysis of intent as it

related to the various Board policies and practices (App. 142-

186a). The Sixth Circuit rejected these findings and instead

premised its findings of segregative intent upon a presumption

of segregative purpose arising from a natural, probable and

foreseeable result test (App. 203-204a, 213a).

Common sense dictates the rejection of such an approach

to resolving a question of segregative intent: The approach

reflects the “Alice in Wonderland” logic that “justifies” the

plaintiffs’ argument that since it is foreseeable that whites

will leave a school system unless they have no means of

escaping a racially mixed school situation, any act of a school

board less than achieving racial balance throughout the en-

tire system is an intentional act of segregation. Building a

school in a black area is an intentional segregative act since

the school will serve a predominately black population; build-

ing a school in a white area is an intentional segregative act

since the school will serve a predominately white population;

building a school in a racially mixed area is an intentional

segregative act since the existence of such a mix will en-

courage whites to leave the area. Under the plaintiffs’ and

the Sixth Circuit’s view, any act on the part of the Board that

falls short of systemwide racial balance is by definition an

intentional segregative act. Common sense demurs.

The decisions of this Court in Washington v. Davis and

Village of Arlington Heights likewise reject the “effect” test

which the Sixth Circuit has attempted to engraft upon the

law in this area. In Washington v. Davis the primary con-

trolling issue in cases of this nature was defined as “purpose

or intent to segregate”; “intent” was equated with “state con-

trivance to segregate” and “a purposeful device to discrimi-

nate.” 426 U.S. at 240, 246. In Arlington Heights this Court

elaborated upon its prior decisions by expressly setting forth

guidelines for the determination of the crucial issue of intent

to segregate. Conspicuously absent was any reference to a

natural, probable and foreseeable result test. 429 U.S. at

—, 97 S.Ct. at 564. Finally, the foreseeability test utilized

by the Sixth Circuit in this action is in direct conflict with

this Court’s implicit rejection of such a test in Austin Inde-

pendent School District v. United States, 429 U.S. 990 (1976).

It is impossible to square the Sixth Circuit’s decision in

Dayton IV with these decisions. This Court should not sit

idly by while an inferior appellate court proceeds blandly to

rewrite an entire body of law and to overrule from below

applicable decisions of this Court in order to secure what

is deemed a socially desirable result. .

C. The Imposition Of A Systemwide Racial Balance Plan

In The Absence Of Proof That Such A Plan Reason-

ably Approximates The Racial Distribution Of Stu-

dent Population That Would Have Occurred In The

Absence Of A Constitutional Violation Is Contrary

To The Holdings Announced In Dayton.

While the Sixth Circuit’s handling of the issue of consti-

tutional violations in this case is marked by clear-cut con-

flicts with and novel departures from prior decisions of this

Court, its handling of the issues of causation and remedy pre-

sents an even more striking conflict with the precise mandate

of this Court in its prior consideration of this litigation. The

mandate in Dayton was concise and unambiguous:

“If such violations are found, the District Court in the

first instance, subject to review by the Court of Appeals,

must determine how much incremental segregative effect

these violations had on the racial distribution of the Day-

ton school population as presently constituted, when that

distribution is compared to what it would have been in

the absence of such constitutional violations. The remedy

must be designed to redress that difference, and only if

there has been a systemwide impact may there be a

systemwide remedy.”

433 U.S. at —, 97 S.Ct. at 2775. The Sixth Circuit proceeded

past what can only be considered a complete misreading of

the term “incremental segregative effect” to reach a totally

different concept of remedy.

1. The Sixth Circuit Misconstrued The Require-

ment Of Establishing Incremental Segregative

Effect In Desegregation Cases And Misplaced

The Burden Of Proof On That Issue.

In addressing the subject of remedy the Sixth Circuit quotes

the very passage we have just quoted from Dayton, and then

proceeds to redefine “incremental” in terms of its seamless

web presumption of systemwide and continuing effects in-

stead of in terms of the increment or difference between the

racial separation that would have occurred in the absence of

constitutional violations and the racial separation that has

occurred in the presence of such violations.

“The word ‘incremental’ merely describes the manner in

which segregative impact occurs in a northern school case

where each act, even if minor in itself, adds incrementally

to the ultimate condition of segregated schools. The

impact is ‘incremental’ in that it occurs gradually over the

years instead of all at once as in a case where segregation

was mandated by state statute or a provision of a state

Constitution.”

(App. 214-215a).

This Court described a result; the Sixth Circuit describes a

process. If the Sixth Circuit has correctly stated the meaning

this Court intended to convey by the words “incremental seg-

regative effect,” those words — which seemed so clear when

issued in 1977 — contained hidden ambiguities that require a

gloss in 1978. If the Sixth Circuit has misconstrued this Court’s

meaning, that misconstruction must be corrected before it

serves further to distort the law in this area.

The Sixth Circuit’s conception of “incremental effect” as

describing a process rather than a result was a natural offshoot

of the artificial presumptions it employed in considering the

violation side of the case. Indeed, its discussion of the alleged

error of the District Court in allocating the burden of proof

on the issue of incremental segregative effect to the plaintiffs

works a fusion between the violation stage and the remedy

stage of the case. See App. 216a. It reasserts its view that once

segregative practices are found to have existed in 1954 there

is a “presumption that the current racial composition of the

school population reflects the systemwide impact of those vio-

lations” (App. 216a). The obvious corollary to this presump-

tion is a presumption that but for a systemwide impact of

violations there would have been a homogenous distribution

of black and white students throughout the system.

Leaving aside the problem that these are artifical concepts

created to justify an end rather than logical inferences based

on reasonable probability, we can see that the Sixth Circuit’s

approach cuts across both issues of remedy and violation. If

the defendant is required to rebut the systemwide impact pre-

sumption, he should also be required to rebut the corollary

presumption that without such systemwide impact the distribu-

tion of black and white students would have been uniform

throughout the system.

Once again the Sixth Circuit has carried the law of desegre-

gation through the’ looking glass. The issues of violation and

of remedy are to be given separate consideration under the

mandate of this Court. Just as a plaintiff in a tort case must

in the first instance carry the burden of establishing both

negligence and causation, the plaintiff in a case of this nature

must in the first instance carry the burden of establishing both

constitutional violations and the incremental segregative effect

of those violations. The burden-shifting principles established

in Keyes do not extend to the remedy stage of the case, and

the language of this Court in Dayton certainly phrases the

burden of establishing incremental segregative effect as a

plaintiffs burden.

Once the question of incremental segregative effect has been

reached, a constitutional violation has of necessity been found

to exist. If this Court intended to place the burden of proof

on the defendant instead of on the plaintiff, it would have

phrased the task in terms of demonstrating that the racial

distribution of the school population would not have been

significantly different in the absence of the violation. Instead,

the task was phrased in the positive terms of showing the incre-

mental segregative effect of the violations on the racial distri-

bution of the school population as presently constituted. Thus,

while this Court did not specifically address the placing of the

burden of proof in Dayton beyond saying that “[i]t is for the

finder of fact to make the complex factual determinations in

the first instance,” its phrasing of the nature of the task is in

terms of an affirmative plaintiffs burden rather than a negative

defendant’s burden. This placement of the burden of proof is

likewise in accord with the traditional principles governing

non-desegregation cases.

2. The Sixth Circuit Adopted An Erroneous

Remedial Standard Which Imposes Upon A

School Board An Affirmative Duty To Diffuse

Black And White Students Throughout The

School System Without Regard To The Distri-

bution Of Students That Would Have Taken

Place In The Absence Of Constitutional Vio-

lations.

In its rush to place what it deems sociological desirable ends

ahead of constitutional means, the Sixth Circuit did little more

than shove aside the questions of proximate cause implicit in

this Court’s analysis of the issue of incremental segregative

effect. In its entanglement with result-oriented presumptions,

it also ignored the plain implications of that issue for remedy

determination. Once constitutional violations with a lingering

effect in 1954 are found — and in view of the seamless web

theory of systemwide and continuing effects, almost any pre-

1954 violation will produce such a finding — nothing short of

a systemwide racial balance plan will suffice as a remedy.

What happened to the careful weighing of the difference

between what is and what would have been and the “complex

factual determinations” contemplated by this Court in Dayton?

They simply disappear in the Sixth Circuit’s presumption that

present racial imbalance is a reflection of the systemwide im-

pact of constitutional violations. In the Sixth Circuit’s view any

school system which is free from the taint of segregative acts

would reflect a racial balance of students uniformly throughout

its schools. Perhaps the most telling phrase in the entire

opinion of the Sixth Circuit is its indication that the existence

of the effects of past segregative practices in 1954 gives rise

to “an affirmative duty” on the part of the School Board “to

diffuse black and white students throughout the . . . school

system” (App. 212a). If such is the duty, it can hardly be

satisfied by anything less than such a diffusion, and the only

appropriate remedy is the achievement of approximate racial

balance of students through mandatory busing.

Such, however, is not the duty as defined by Dayton and

prior decisions of this Court. The imposition of a systemwide

racial balance plan in the absence of any evidence to suggest

that the Dayton system would have been integrated to such

an extent if no constitutional violations had ever occurred is

in direct opposition to the reasoning expressed in Austin Inde-

pendent Schooi District v. United States, 429 U.S. 990 (1976).

As stated in Austin, which was cited with approval in Dayton,

there must be evidence “in the record available to us to sug-

gest that absent those constitutional violations the . . . school

system would have been integrated to the extent contemplated

by the plan.” Ibid.

In this case no such evidence exists. The Trial Court held

that the preponderance of the evidence did not establish that

any of the actions of the Dayton Board had any incremental

segregative effect. This holding was supported by the un-

controverted demographic and historical evidence that the

« racial composition of the Dayton schools has been consistent

with the residential pattern of the school district and that the

optional attendance zones which were created by the Board

had no incremental segregative effect.

In the face of this evidence and in spite of the guidelines

carefully delineated by this Court in Dayton, the Sixth Circuit

simply presumed that but for constitutional violations the

Dayton system would have been racially balanced. In accord-

ance with this irrational presumption, it simply reinstated the

systemwide, racial balance plan (App. 217a). It thus added

another error to the conflicts between its reasoning and the

constitutional principles established by the controlling deci-

sions of this Court.

D. Imposition Of A Remedy Where There Is A Failure

To Prove Standing Is Contrary To Established Ju-

dicial Precedent.

At every stage of this litigation from the time it was filed

in April of 1972, the Dayton Board has asserted its denial that

the plaintiffs have any standing to sue. This issue was raised

in Dayton. Presumably, the remand for the taking of addi-

tional evidence was intended to give the plaintiffs another

opportunity to rectify this defect. As in the pricr evidentiary

hearings, however, no plaintiff testified at the remand hearing

and there was no evidence introduced at that hearing to estab-

lish that any plaintiff or any member of the class which he or

she reportedly represented was excluded from any school in

the Dayton system on account of race. This hiatus in the

proof is fatal. Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1 (1971).

There is no evidence anywhere in the records of this action

that any of the plaintiffs sustained any injury or that any of

them was deprived of any constitutional right. In thesabsence

of any such evidence, the plaintiffs have no standing, and

they cannot prevail in this action. Village of Arlington Heights

v. Metropolitan Housing Development Corp., 429 U.S. 252

(1977); O’Shea v. Littleton, 414 U.S. 488, 493-94 (1974).

The propriety of this action under Rule 23 of the Federal

Rules of Civil Procedure is dependent upon proof by the in-

dividual plaintiffs that they are members of the class they

purportedly represent. Bailey v. Patterson, 369 U.S. 31 (1962).

It is also dependent upon certification by the district court of

this suit as a class action. Pasadena City Board of Education

v. Spangler, 427 U.S. 424 (1976). Neither of these require-

ments was met.

The record in this case is completely devoid of any testi-

mony whatsoever that any of the plaintiffs were children or

parents of children who are or were or would be attending

any school within the Dayton school system or that any of

them resided within the geographic boundaries of the Dayton

system. There is no evidence that any of the plaintiffs are

members of the class that was allegedly, directly or indirectly,

excluded from any school because of their race. In the absence

of such proof, this action cannot be maintained as a class

action. Davis v. Schultz, 453 F.2d 497 (3rd Cir. 1971); Kauff-

man v. Dreyfus Fund, Inc., 434 F.2d 727 (3rd Cir. 1970), cert.

denied, 401 U.S. 974 (1971).

In addition to the failure of the plaintiffs to establish that

any of them was a member of a class he or she purportedly

represented, there was no determination by the District Court

that this action was maintainable as a class action. This

failure,~in and of itself, defeats the right of the plaintiffs to

maintain the action as a class action.

VII. CONCLUSION

Something is obviously wrong when two courts, purporting

to follow the same specific guidelines, reach diametrically

opposed results. The Sixth Circuit, in reversing the District

Court's outright dismissal of the plaintiffs’ complaint, says

that the District Court “misunderstood” this Court’s mandate.

Mr. Justice Rehnquist, in examining the Sixth Circuit’s rein-

statement of a mandatory racial balance busing plan affecting

every school and every student in the system, suggests that

the misunderstanding came at the appellate level. It is clear

that someone has misconstrued the principles which this Court

has attempted to establish. We respectfully submit that it is

equally clear that a failure of this Court to resolve the resulting

confusion will lead to further doctrinal aberrations in an area

of law that directly affects the daily lives of a large percentage

of the population of this country.

An analysis of the Sixth Circuit’s opinion in this case reveals

it as little more than a compendium of conflicts with the

controlling decisions of this Court in Dayton, Arlington

Heights, Washington v. Davis, Austin and Keyes. The Dis-

trict Court, pursuant to the plain mandate placed before it,

first attempted to determine whether there is in the Dayton

school system a current condition of racial separation caused

by intentional segregative acts of the Dayton Board. It then

proceeded to determine how much incremental segregative

effect, if any, was caused by such acts, as compared with the

conditions of racial separation that would have occurred in the

absence of those acts. The factual determinations may have

been complex, but they were honestly and objectively made

and thoroughly grounded with supporting references to the

record.

The Sixth Circuit rejected this approach and analysis. In-

stead of focusing on current conditions, it focused on 1954

and concluded as a matter of doctrine that if the school sys-

tem reflected any effect of segregative practices at that time,

the School Board had from that time forward an affirmative

duty to diffuse black and white students throughout the sys-

tem. The only way of discharging that duty would be to

demonstrate that a systemwide racial balance of students exists;

the obvious remedy for anything less than such a diffusion is

the accomplishment of such a diffusion by judicial decree.

Against this doctrinal framework, the task of making complex

factual determinations is replaced by the shifting of impossible

burdens to the school board and the substitution of presump-

tions for proof. It is presumed that the intent of actions is the

same as their effect; it is presumed that any action has system-

wide and continuing implications; it is presumed that racial

imbalance is a result of segregative acts; it is presumed that

in the absence of segregative acts racial balance would occur.

On this procrustean bed the facts in any desegregation case

are easily stretched to achieve the predetermined result and

remedy. $

We respectfully submit that the Sixth Circuit has abandoned

the constitutional principles established by this Court and

substituted for those principles a novel and different law of

desegregation. The desirable sociologic end is, in the Sixth

Circuit’s view, clear, and any doctrinal means to achieve that

end is justified. When the means to the end becomes rewrit-

ing the law as imposed by the Supreme Court and rewriting

the facts as found by the Trial Court, however, the jurispru-

dential result is chaos!

The District Judge in his conscientious and consistent effort

to apply the law to the facts of this case has thus far succeeded

only in demonstrating the impossibility of serving two quarrel-

ing masters. His judgments have now been reversed on four

successive occasions, three times by the Sixth Circuit when he

followed the legal doctrines established by this Court and

once by this Court when he followed the mandate of the

Sixth Circuit. This is a situation of judicial turmoil that should

not be condoned.

The attitude of the Sixth Circuit toward the developing law

in northern desegregation cases has been apparent since Judge

Edwards’ emotional concurring opinion was issued on a remand

of the Detroit case in 1975:

“I join my colleagues in the drafting and issuance of

today’s order because any final decision of the United

States Supreme Court is the law of the land. But con-

science compels me to reveal how deeply I disagree with

the decision which we are enforcing.”

Bradley v. Milliken, 519 F.2d 679, 680 (6th Cir. 1975). Ina

remarkable opinion, he went on to declare that any distinction

between northern cases and southern cases was “a formula for

American apartheid” and this Court’s decision in the Bradley

case was more “fraught with disaster for this country” than

any Supreme Court decision since the Dred Scott case. It

appears that in Dayton IV this shout of resistance has taken

the more subtle, though still rebellious form of reworking con-

stitutional doctrines to assure that federal courts achieve the

same sociologic result in states which had no statutory or

constitutional mandate for segregated schools as occurred in

southern states where such mandates existed.

Unless this Court is willing to delegate the rewriting of

constitutional law to intermediate appellate courts on a circuit-

by-circuit basis, it should feel compelled to grant certiorari

in this case and analyze the doctrinal changes that are being

wrought by the Sixth Circuit. Those changes do not affect

simply the Dayton school system. The issue goes far beyond

Dayton, although the Dayton system has by reason of the

Sixth Circuit’s resistance to the principles established by this

Court led through six years of litigation that can only be

perceived as bewildering by the public eye.

The Columbus case has been determined by the Sixth Circuit

according to the same novel standards and either is or will be

before this Court on a petition for a writ of certiorari. The

Cleveland case has been briefed and argued before the Sixth

Circuit and is presently awaiting decision. Other desegrega-

tion cases are pending in the district courts of the circuit, and

the district judges to whom those cases are assigned require

guidance in view of the obvious conflicts between the pro-

nouncements of this Court and those of the Sixth Circuit.

Without clarification by this Court the new doctrines which

have been created in the Sixth Circuit may spread to other

circuits as weil. It was necessary to remand systemwide de-

segregation plans for analysis in terms of Dayton standards in

both the Eighth Circuit and the Seventh Circuit. School Dis-

trict of Omaha v. United States, 433 U.S. 677 (1977); Bren-

nan v. Armstrong, 433 U.S. 672 (1977). There has been

a continuing willingness in several circuits to replace the

Arlington Heights standards for determining intent with

effect. See, e.g., United States vy. School District of Omaha,

565 F.2d 127 (8th Cir. 1977), cert. denied, — US. —

(1978); N.A.A.C.P. v. Lansing Board of Education, 559 F.2d

1042, 1047 (6th Cir.), cert. denied, 434 U.S. 997 (1977); Hart

v. Community School Board, 512 F.2d 37, 51 (2d Cir. 1975).

But see Soria v. Oxnard School District Board of Trustees,

488 F.2d 579, 585 (9th Cir. 1973), cert. denied, 416 U.S. 951

(1975).

This Court has not held that mandatory busing to achieve a

systemwide balance of black and white students is required

in any situation where present racial imbalance is coupled with

evidence of the existence of pre-1954 segregative practices.

Yet such a holding is the result required in any desegregation

case if the theories promulgated by the Sixth Circuit are to

prevail. Present students would be penalized for violations

by past school boards despite the fact that no student affected

by such violations is currently attending any school in the dis-

trict. Nothing in the Constitution, in principles of equity or

in prior decisions of this Court can be deemed to justify or

‘rationalize such a result.

This case, therefore, does not simply demand a restatement

of established principles; it requires the curbing of new doc-

trines that threaten to sweep the law of desegregation from the

constitutional moorings which this Court has established.

For all these compelling reasons, a writ of certiorari should

be granted.

Respectfully submitted,

DAVID C. GREER

LEO F. KREBS

BIESER, GREER & LANDIS

600 First National Bank Building

Dayton, Ohio 45402

(513) 223-3277

Attorneys for Petitioners

APPENDIX

A. DISTRICT COURTS FEBRUARY 7, 1973

FINDINGS OF FACT AND OPINION OF

LAW.

(Filed February 7, 1973)

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Civil No. 72-137

MARK BRINKMAN, et al.,

Plaintiffs,

JOHN J. GILLIGAN, Governor

of the State of Ohio, et al.,

Defendants.

FINDINGS OF FACT AND

MEMORANDUM OPINION OF LAW

This is a school desegregation suit brought as a class action

by the parents of black children attending schools operated

by the defendant Dayton (Ohio) Board of Education. This

Court has proper equity jurisdiction under the Equal Pro-

tection Clause of the Fourteenth Amendment to the United

States Constitution; see Brown v. Board of Education, 347

U.S. 483, 495 (1954); 349 U.S. 294,, 300-301 (1955), and

under 28 U.S.C.A. §§ 1981 and 1983, 42 U.S.C.A. § 1343.

This matter is before the Court upon the briefs, stipulations

and exhibits presented by the respective parties; and upon

the record adduced during expedited hearing conducted by

Court from November 13 through December 1, 1972. The

limited question before the Court at said hearing was whether

acts by the defendant Dayton School Board have created

segregated educational facilities in violation of the Equal

Protection Clause.

Having carefully examined the evidence presented, the

Court, pursuant to Rule 52(a), Fed. R. Civ. P., enters the fol-

lowing findings of fact and memorandum opinion of law.

FINDINGS OF FACT

A. Historical Perspective

(1) The evidence presented has established isolated but

repeated instances of failure by the Dayton School Board to

meet the standards of the Ohio law mandating an integrated

school system.’ Such instances include a physical segregation

into separate buildings of pupils and teachers by race at the

Garfield School in the early 1920's, a denial to blacks of access

_to swimming pools in high schools in the 1930’s and 1940’s and

1Section 3313.48, Ohio Revised Code, provides in relevant part

that:

“[t]he Board of Education of each city . . . shall provide

for the free education of the youth of school age within the

district under its jurisdiction at such places as will be most

convenient for the attendance of the largest number thereof . . .”

This has been the law of Ohio since February 22, 1887, when it was

enacted by 85 Ohio Laws 34. The statute was upheld and enforced

in 1888 by the Supreme Court of Ohio in Board of Education v. State,

45 O.St. 555, as follows:

“Section 4008 having been repealed by the Act of the General

Assembly passed February 22, 1887 (84 Ohio Law 34), separate

schools for colored children have been abolished and no regula-

tion can be made under 4013 that does not apply to all children,

irrespective of race or color:”

the exclusion, between 1938 and 1948, of black high school

teams from the city athletic conference.?

Prior to Brown, however, physical isolation of black students

ended, swimming pools were no longer restricted, and black

athletic teams competed on an equal basis with all other

Dayton High Schools.

While arguably consistent with the social mores of the

times, the treatment of black children during this period was

at least inhumane and by present standards, reprehensible.

The practices of the Dayton School Board were also, during

that period, in contravention of Ohio law as cited in n.l,

supra. Both by reason of the substantial time that has elapsed

and because these practices have ceased, however, the fore-

going will not necessarily be deemed to be evidence of a

continuing segregative policy.

(2) Not to be dismissed on a deminimus theory are the

practices of the Dayton School Board with regard to the

hiring and placement of its teachers. In the past thirty-odd

years three separate policies have been followed. Until the

decade of the 1930’s, there was little, if any, hiring of black

teachers. Those who were hired were used in instruction of

predominately black classes. During and following World

War II the black population of Dayton substantially in-

creased. Black teachers were hired in greater number, al-

though such teachers did not teach in schools which were

predominately white. While there is no direct evidence that

black teachers were forbidden to teach white children at any

school, in practice few actually did. Some evidence consistent

with the assumption that black educators and black principals

would be more understanding, sympathetic, and inspiring to

black students has been suggested to the Court.

2 For a period in the 1930’s and 1940's, the Shawen Acres Orphan

Home sent its black and white wards to different schools. Some white

children of medical personnel of the Veterans Hospital in Dayton were

bused by the hospital to “white” schools. The Dayton School Board,

while not initiating these practices, condoned and assisted them.

In the 1951-52 school year, the policy of assigning black

teachers only to black schools ended and black teachers were

gradually assigned to white or mixed schools. By 1963, under

a policy designated as one of “dynamic gradualism,” at least

one black teacher had been assigned to all eleven high schools

and to 35 of the 66 schools in the entire system.

By 1969 each school in the Dayton system had an integrated

teaching staff consisting of at least one black faculty member.

In the fall of 1971, pursuant to an agreement with the De-

partment of Health, Education & Welfare (H.E.W.), the

Dayton Board of Education commenced assigning faculty in

such a manner that the ratio between black and white teachers

in each school substantially reflected the ratio between black

and white teachers in the system as a whole. Pursuant to

this agreement the teaching staff of the Dayton Public Schools

became and still remains substantially integrated.

By 1969 the Dayton School Board employed more black

teachers than any other of the 20 largest school districts in

Ohio. At that time 28.6% of all teachers were black while

38.3% of all students were black. For the school years 1971-72

and 1972-73, blacks comprised 38% of the non-teaching, non-

administrative personnel employed by the Board of Education.

Employment of blacks in other positions such as skilled crafts-

men, however, remains substantially below the percentage of

black students population or the percentage of black teachers

and black administrators.

(3) In 1933, the Paul Lawrence Dunbar High School was

established. Dunbar High School was intended to be, and did

in fact became, a black high school, with an all black teacher

and pupil population. At the time of its creation, there were

no school attendance zones in Dayton and students were

permitted liberal transfers. Attendance at Dunbar was vol-

untary.

In the 1940’s and early 1950's, after reorganization into a

K-8, 9-12 grade structure, high school and elementary school

attendance zones were established and enccrced in Dayton.

Dunbar continued to exist as a city-wide all-black high school

until it closed in 1962.

B. The Dayton Public School System Today

(a) Racial Imbalance

(4) The great majority of all schools in the Dayton system

today have student populations which are racially imbalanced,

consistent with the black-white population and geographical

distribution thereof as shown by the 1970 census.* Except at

the Patterson Co-op High School, where in the past few years

a concerted effort has been made to enroll more black

students, no effort has been made by the school board of

Dayton to balance by race the student population at any

particular school. See Appendix A, post at 15.

(b) Attendance Zones

(5) There has been presented no evidence of boundary

changes that would channel blacks ~r whites into specific

schools or would restrict blacks from attending any school.

Where construction of new schools has required boundary

changes, they have been rational, reasonable and within the

sound discretion of the Board of Education. No irregular

school zones have been created, white students have not been

bused past black schools to white schools, nor have black

students been bused past white schools to black schools.

3 The 1970 census for the city of Dayton indicates 71 census tracts,

45 with a black population of less than 15%, eight with a black

population between 15% and 85%, and six with a black population

of 85% to 100%.

While the Dayton School District is not geograp\.ically identical to

the city limits of the City of Dayton, the variations are non-significant

in the context of the areas’ black-white populativn.

(6) The Dayton School District contains 57 elementary

school attendance areas. No evidence has been presented of

gerrymandered boundary lines and the attendance districts are

regular in shape. Boundary line changes have occurred only

when new schools were constructed for the purpose of re-

lieving overcrowding in existing ones. See Appendix A, post,

at p. 15. ees

(7) The middle school program was established on Jan-

uary 4, 1971. Middle schools consist of grades 6,7 and 8. The

middle school program has to date been only partly effectu-

ated in the Dayton system. Elementary schools (kindergarten

through eight) are still in operation as well as primary schools

(kindergarten through five), and middle schools (six through

eight). At the present time there are five middle schools in

Dayton: Correll Heights, Longfellow, MacFarlane, Whittier,

and Orville Wright. For the racial compositions of these

schools, see Appendix A, post, at p. 15.

Attendance boundaries for the middle schools were estab-

lished in September, 1971, and have neither segregative nor

integrative effect.

(8) There are presently eleven high schools in Dayton,

ten of which have specific attendance areas. The eleventh,

Patterson Co-op High School, enrolls students from the entire

district for its vocational education program. The black per-

centage of attendance at Patterson High School has increased

due to an altering of recruitment techniques, from 2.0% in

1963 to 32.9% in 1972. No evidence has been presented that

under the present selection system the admision of blacks

is denied or discouraged or that the system is segregative in

effect. Pk

Dayton has constructed five high schools since 1954 and

has altered attendance zones where necessary to accommodate

the overcrowding of existing high schools. Other than such

alterations, no attendance zone boundaries have been changed.

No evidence of the establishment of high school boundary

lines for the purpose of creating white high schools and black

high schools has been presented.

(9) Since 1954 the school board of Dayton has constructed

14 new elementary schools and 60 elementary schoo! additions.

The construction follows the pattern of growth in the Dayton

area and follows the specific policy of “building schools where

children are, or where they are expected to be.” New con-

struction of elementary schools was largely on the periphery

of the center city. There are instances of errors in Board

planning in that some areas have not developed as expected

and other developed areas have not become part of the

Dayton School District, as expected. There are examples of

schools operating substantially below capacity. While reason-

able minds might reasonably differ on selection and construc-

tion of some schools, sufficient evidence has not been presented

that school construction was segregative in nature other than

to provide schools in white neighborhoods which remain pre-

dominantly white and schools in black neighborhoods which

remain predominantly black.

(10) Five new high schools and fourteen high school

additions have been constructed in the past eighteen years.

Constructions of some high schools followed the pattern of con-

struction of elementary schools in that sites selected were

away from the center of the city and in neighborhoods which

were predominately white. Other sites could have been

selected near the center of the city in black neighborhoods.

Such schools would arguably, at least, have had a larger pro-

portion of white attending such schools.

Site selection is a matter of judgment and no evidence

has been presented that the Board of Education failed to use

neutral criteria in its choices. In the construction of schools,

the Board, over the years, has been presented with options.

Plaintiffs have failed to sustain their burden of showing that

the defendant Board exercised those options presented in an

improper fashion.

(d) Optional zones

(11) The Board of Education of the Dayton School Dis-

trict has from time to time created optional zones. Optional

‘zones are dual or overlapping attendance areas which allow

children residing within them a choice among two or more

schools. Some optional attendance zones were created where

the more distant school geographically had better access;

some were created where the more distant school did not

require the crossing of busy intersections, commercial areas, or

railroad tracks. Many were created for the convenience of

parents. There has been evidence that at times this last con-

cept embraced desires motivated by racial considerations.

Seven optional elementary zones and four optional high school

zones exist at the present time. All of the others have been

abolished. See Appendix B, post at 16.

The majority of optional zones had no racial significance at

the time of their creation. The Westwood-Jackson, Roosevelt-

Colonel White, and Fairview-Roth zones may have consti-

tuted exceptions to this general rule and we cannot con-

clude that these did not have adverse racial effects. Similarly,

although none of the elementary school optional zones today

have any significant potential effects in terms of increased

racial separation, the same cannot be said of the high school

optional zones. Two of these zones, those between Roosevelt

and Colonel White and between Kiser and Colonel White,

are by far the largest in the system and have had the most

demonstrable racial effects in the past.

(e) Freedom of Enrollment

(12) By two separate actions the Board of Education has

established a “freedom of Enrollment” policy. On May 29,

1969, action was taken whereby the parents of a pupil in good

standing in the Dayton Public School District could request

assignment of the pupil to any school building within the

district where space was available to accommodate him.

Three priorities were established.

(1) Students residing within the attendance area of

a school building shall have first priority to assign-

ment to that building.

(2) Students meeting the requirements for a course

available only in the particular building shall have

second priority for attendance in that building;

(3) A student desiring enrollment in any building for

whatever reason shall have third priority in that

building, providing his enrollment will contribute

to improved racial balance in that building.

The action of May, 1969, further provided that transportation

would be the responsibility of the parents.

On January 3, 1972, the Board of Education resolved to

continue the Freedom of Enrollment policy with the exception

that the Superintendent and his staff were directed to develop

and submit before the start of the second semester of the

1971-72 school year a plan providing for the free transporta-

tion of the students participating in such program. Such free

transportation was adopted by the Board prior to the filing of

the complaint herein.

(13) Applications for transfer and dispositions thereof

during the school years 1969-1970, 1970-71, 1971-72, 1972-73,

are set forth in Appendix C, post, at 17. There is no evidence

that the Freedom of Enrollment system has been unfairly op-

erated or that black students have been denied transfers

because of their race. There is evidence that the capacity of

transferee schools has been underestimated and that projec-

tions of future enrollment are substantially overestimated. A

neutrally administered freedom of enrollment system might in

the future reduce somewhat racial imbalance and remove com-

munity perception of “black” and “white” schools. However,

as the Freedom of Enrollment system is presently constituted,

its input towards that goal has been slight. Requests for

10a

transfer have at no time exceeded 1.5% of the total student

enrollment.

C. School Board Action — December, 1971

January, 1972

(14) At the general election in November, 1971, the

electors of the school district of Dayton elected three mem-

bers for a four year term commencing January 1, 1972. Issues

at such election involved the matter of school attendance

zones and transportation of pupils. Two incumbent mem-

bers of the Board ran for reelection, one did not. One in-

cumbent was reelected and two new members of the Board

were added. On December 8, 1971, the 1971 Board met to

consider resolutions dealing with transportation of students

and zone attendance lines. All members present were duly

elected, qualified and acting members of the Board, although

two of them were so-called ‘ame ducks,” who would not be

members of the Board after December 31, 1971.

The Board adopted several resolutions. These resolutions

recognized the existence of racial segregation in the Dayton

schools, the role played by the Board in the creation of the

racial patterns and the concommitant responsibility of the

Board to eradicate these patterns through affirmative action.

The types of affirmative action recognized included the elim-

ination of the old attendance zones and the transportation of

students for the purpose of achieving the city-wide racial

balance of students. These resolutions, which are set forth in

part in Appendix D, post, at 18-22, were adopted by the Day-

ton School Board by a vote of 5-2.

Immediately thereafter, one member of the Board who had

voted with the majority, requested reconsideration and was

improperly ruled out of order. The Board met subsequently

on December 6, 1971 [sic], and January 3, 1972. At the end

of the latter meeting, the Board ended its term of office

and the 1972 Board took its place. On January 3, at its first

meeting, the 1972 Board rescinded the resolutions passed on

lla

December 8. Since the 1971 Board had passed out of ex-

istence, the action of the 1972 Board on January 3, 1972, was

not in the nature of a reconsideration but instead was a re-

cission of the previous action.

The right of the majority to override protected minority

rights has clear limitations in our constitutional democracy.

See Reitman v. Mulkey, 387 U.S. 369 (1967); Hunter v.

Erickson, 393 U.S. 385 (1969); also see Alkire v. Cashman,

—— F.Supp. —— (S.D. Ohio E.D. 1972). The recission in

early 1972 of the resolutions adopted by the 1971 School Board

constituted an independent violation of the Equal Protection

Clause rights enjoyed by the black minority of Dayton. See

Bradley v. Milliken, 433 F.2d 897 (C.A.6 1970); Oliver v.

Kalamazoo Board of Education, 346 F.Supp. 766 (W.D. Mich.

§.D. 1971), aff'd. 448 F.2d 635 (C.A.6 1971).

OPINION

An examination of the decisional law of this circuit does

not provide an identifiable category for the Dayton Public

School System. Ohio law, unlike the law of many Southern

states, has never mandated the separation of the races in

public school; to the contrary, since 1887 it has specifically

prohibited this practice. See n.1, supra. The Dayton system

is a square peg for the round holes of Memphis, Knoxville,

and other southern cities.4 It is, however, also a round peg

4 Compare, for example, the intransigence of the Nashville School

Board’ in Kelley v. Metropolitan County Bd., F.2d Nos. 71-

1778 & 79 (C.A. 6 May 30, 1972). See also Northcross v. Board of

Education of Memphis, 420 F.2d 546 (C.A.6 1970), affd. 397 USS.

232 (1970); 444 F.2d 1179, 1184 (C.A.6 1971); Goss v. Board of

Education of Knoxville, 301 F.2d 164 (C.A.6 1962); 305 F.2d 523

(C.A.6 1962); 406 F.2d 1183 (C.A.6 1969); 444 F.2d 632 (C.A.6

1971); motion for implementation order denied, 403 U.S. 956 (1971);

Robinson v. Shelby County Board of Education, 442 F.2d 259 (C.A.6

1971); Mapp v. Board of Education of City of Chattanooga,

F.2d (C.A.6 October 11, 1972), rehearing en banc granted

F.2d —— (C.A.6 1972).

}2a

for the square hole that is Cincinnati in Deal v. Board of

Education. In Deal, which dealt with an urban school sys-

tem organized under the laws of Ohio, there was no finding

that the actions of the school board had contributed in any

fashion to the segregation of the Cincinnati public schools.

We have not found the Keyes situation of the transfer of whites

to remaining predominately white schools.6 We have not

found the Bradley altered attendance zones or the transfer

programs that allowed whites to escape from identifiably black

neighborhood schools.?, We have not found the Davis pattern

of racial discrimination.®

What we have found are racially imbalanced schools, op-

tional attendance zones, and recent Board action, which are

cumulatively in violation of the Equal Protection Clause. We

hold that the totality of these findings require intervention by

this Court under the mandate of Brown v. Board of Education,

supra.

We do not hold that a school board may not in its wisdom

determine to establish ‘neighborhood schools.” Gilliam v. School

Board of Hopewell, 345 F.2d 325; Deal, supra; Goss, supra.

But an “optional attendance zone” is a limitation upon this

5 369 F.2d 55 (C.A.6 1966); 419 F.2d 1387 (C.A.6 1969), cert. den.

402 U.S. 962 (1971).

6 Keyes v. School District No. 1, 303 F.Supp. 279, 289 (D.C. Colo.

1969); 313 F.Supp. 61, 90 (D.C. Colo. 1970), affd. in part, rev'd. in

part, 445 F.2d 990 (C.A.10 1971), cert. granted —— USS.

(1972).

7 Bradley v. Milliken, 338 F.Supp. 582 (E.D. Mich. 1971), aff'd.

— F.2d , Nos. 72-1809, 72-1814 (C.A.6 Dec. 8, 1972), re-

hearing en banc granted F.2d —— (C.A. 6, Jan. 16, 1973). See

also Clemons v. Board of Education of Hillsboro, 228 F.2d 853 (C.A.6

1956).

8 Davis v. School District of Pontiac, 443 F.2d 573 (C.A.6 1971),

cert. den. 404 U.S. 913 (1971).

13a

concept and if carried to an ultimate conclusion, effectively

destroys it. If a school board elects to use the neighborhood

school concept, it must do so fully and completely. Where

there are hazards, natural or artificial, it must so adjust the

boundaries in order to protect the children it intends to edu-

cate. It may not employ optional zones either to destroy or

dilute the neighborhood school concept.

In addition, there appear to be aspects of the system which

may in the future become segregative in effect unless steps

are now taken that will retard these undesirable tendencies.

Without seeking to calibrate the degree of segregation that in-

heres in individual policies of the Board, we hold that these

must be refashioned in such manner as to avoid such future

racially disharmonious potential.

Accordingly, the Dayton School Board is hereby instructed

to prepare and present to this Court within sixty (60) days

a plan that will accomplish the following:

(1) Abolish all optional attendance zones presently re-

maining within the Dayton school system;

(2) Restate the priorities for high school attendance

in the freedom of enrollment plan in order that no

student of a minority race may be denied attend-

ance at any high school in the Dayton Public

School System and so that transfers for purpose of

improving racial balance take precedence over cur-

riculum transfers;

(3) Maintain faculty assignment policies that will re-

flect in each school the approximate ratio of black

to white faculty throughout the district.

(4) Establish hiring policies that will enable the clerical

and maintenance personnel hired by the school

board of Dayton to approximate the proportion of

black-to-white ratio of the Dayton School District.

The foregoing enumerated specifics shall be considered as a

minimum. The plan submitted by the defendant Board shall

l4a

in all other respects conform to the requirements of law.

Swann v. Charlotte-Mecklenburg Board of Education, 402

U.S. 1 (1970); Davis v. Board of School Commissioners of

Mobile County, Ala., 402 U.S. 33 (1970).

Irrespective of the determination of this Court there will

remain in the city of Dayton a substantial black population

entitled as a matter of law to equality in education, housing,

and job opportunity. No peaceful community can consist of

two separate societies viewing each other with mistrust and

suspicion from ever higher walls of separation. Education has

been historically in our country and remains to this day, one

of the primary means of overcoming barriers of class, status and

occupation.

A court can only enjoin upon a school board its legal duty.

It cannot reach the infinitely more sensitive moral obligation

that defies legal measurement. We commend to the School

Board of the City of Dayton its moral obligation to provide

the highest possible level of education equally for all children

entrusted to its care, without distinction or bias or partiality.

/s/ CARL B. RUBIN

United States District Judge

l5a

APPENDIX A, FEBRUARY 7, 1973 FINDINGS OF FACT

RACIAL COMPOSITION OF DAYTON PUBLIC

SCHOOLS (1971-1972)

Elementary schools — % Black:

1. Jane Addams .... 81.7 27. Jackson Primary .. 98.8

S.A eae aan 0.6 28. Jefferson Ele. .... 60.1

3. Belle Haven ..... 5.0 29. Jefferson Primary . 57.1

4. Belmont ........ 0.0 om Ns eee vdanes 0.0

|. ere a 0.6 3l. Lewton........ 0.0

CC icici wane 99.0 32. Lincoln ........ 0.0

7. Cleveland ........ OO Gi SOR it, 4.6

eee re 5.7 34, Horace Mann .... 0.2

9. Eastmont ........ 0.0 35. McGuffey ...... 14.4

ee ees 97.3 36. McNary Park .... 99.4

11. Emerson ........ 6.8 37. Meadowdale Ele. 8.0

IS. FeO a esse’ 0.1 38. Miami Chapel .... 99.9

13. Fairview 39. Patterson-Kennedy 0.0

Elementary .... 1.7 40. Residence Park Ele. 98.8

14. Ft. McKinley .... 0.0 41. Residence Park Pri. 99.3

1D FR, e@acosss 0.0 TD cd vesas 7.0

16. Gardendale ...... 28.5 ee eee 0.1

17. Gettysburg ...... 5.2 44. Shoup Mill ...... 7.1

16. Gorman os es 21.1 45. Louise Troy ..... 100.0

19. U.S. Grant ...... 0.1 WD, FV noe wks 7.5

20. Grace A. Greene .. 96.8 47. Van Cleve ...... 1.1

21. Hawthorne ...... 0.0 48. Washington ...... 19.4

22. Hickorydale ...... 6.6 49. Weaver ........ 99.9

23. Highview ........ 97.0 50. Webster ......... 0.0

24. Huffman ........ 0.0 51. Westwood ....... 99.4

ee | Bree ee 99.0 52. Wogaman ...... 100.0

26. Jackson Elementary 99.1

‘

Of 52 elementary schools in use as of September, 1972,

29 are more than 90% white and 15 are more than 90% black.

The balance range from 19.4% to 60.1% black.

l6a

Middle schools — % Black:

High Schools — %

—_—

ne 99.6

Bs TOE a bindu seve suas 99.3

3. Cornell Heights .......... 80.5

4. Longfellow ............. 64.1

5. Orville Wright .......... 8.1

Black:

Dy SE. 'ceb veceausee ue 100.0

SS eee 100.0

Dee 5s oh ls anes nan 95.8

4. Colonel White ............ 54.6

5. Patterson Co-op ......... 32.9

Scented caweeeran 24.1

1 GE choc steee eee 14.0

8. Meadowdale ............ 10.6

Bante assoc ee 9.8

0. Wilbur Wright ............ 9,2

ee PRR AEN, a, 5.2

17a

APPENDIX B TO FEBRUARY 7, 1973 FINDINGS OF FACT

EXISTING OPTIONAL ZONES

Percentage Black

School Population

Optional Zone Date of

Creation

Elementary schools:

l. Belle Haven/ 1955

Fort McKinley

2. Residence Park/ 1954

Jane Addams

3. Westwood Ele./ 1952

Jackson Ele.

4. Lincoln/ 1957

HoraceMann

5. Cleveland/ 1956

Belmont Ele.

6. Grant/ 1957 c.

Belmont

7. Eastmont 1957 c.

Lewton

High schools:

l. Fairview/ 1965

Roth

2. Roosevelt/ 1951

Colonel White extended 1958

3. Kiser/ 1962

Colonel White

4. Wilbur Wright/ 1956

Belmont High

Figures not available

Figures as of 1951

c. Figures as of 1963-1964

At date of

creation

0.0

0.9 c.

53.5 ¢c.

31.5

0.0

2.7 «.

2.2 b.

0.0

1972-73

17.7

2.6

100

78.7

99.7

99.9

0.6

3.1

0.8

9.4

0.3

9.4

0.7

5.8

24.1

95.8

100.0

54.6

9.8

54.6

9.2

5.2

18a

APPENDIX C TO FEBRUARY 7, 1973 FINDINGS OF FACT

FREEDOM OF ENROLLMENT APPLICATIONS

1969-70

1970-71 1971-72 1972-73

White applications 133 78 47

Black applications 695 757 741

Totals 828 835 788

White approvals 50 39 23

Black approvals 421 460 460

Totals 471 499 483

White disapprovals 83 76 15

Black disapprovals 274 260 187

Totals 357 336 202

White disapprovals

(Lack of classroom space ) 16 8 12

Black disapprovals

(Lack of classroom space ) 164 174 166

Total disapprovals 180 182 178

(Lack of classroom space )

19a

APPENDIX D TO FEBRUARY 7, 1973 FINDINGS OF FACT

RESOLUTIONS OF THE DAYTON SCHOOL BOARD

At the December 8, 1971, meeting of the Dayton School

Board, the following three resoluticas were passed, each by a

5-2 vote:

RESOLUTION SEEKING JOINT ACTION TO END

SEGREGATION IN EDUCATION, HOUSING

AND EMPLOYMENT IN THE METROPOLITAN

DAYTON AREA

WHEREAS, the Committee of 75, in reporting to this Board,

has called renewed attention to the widespread racial and

economic isolation of pupils in the Dayton Public Schools

and in schools of the metropolitan Dayton area.

NOW, THEREFORE, BE IT RESOLVED by the Board of

Education of the City School District of Dayton:

1. That this Board hereby recognizes and admits that racial

and economic segregation exists in the Dayton schools

because of the actions and inactions of this and predeces-

sor boards in the establishment of attendance districts, the

location and expansion of school buildings, pupil assign-

ment practices, design of curriculum suitable to urban

needs, the assignment of teachers and other staff, and the

conduct of student activity programs; the past actions or

inactions of the Ohio General Assembly, the State Board

of Education, and other agencies of Federal, state, and

local government in contributing to the development and

continuation of segregated housing, education, and em-

ployment in the Dayton metropolitan area and other

parts of Qhio; and the actions and inactions of lending

agencies, real estate interests, employers, unions, private

schools, colleges, churches, and other organizations that

have reinforced segregation.

2. That this Board recognizes that past actions or inactions

20a

of the Board of Education and residential racial segrega-

tion are interdependent phenomena.

3. That this Board recognizes that the black minority popu-

lation of the Dayton metropolitan area, as illustrated by

the existence of schools of opposite racial composition in

districts with contiguous district lines, essentially is con-

tained within the central city of Dayton, as a result of

discriminatory practices. Such containment works against

a viable integrated school system within the city, and the

Board asserts that a truly effective solution is possible

only through a metropolitan approach.

4. That this Board of Education recognizes that racial and

economic integration of student bodies in each school is

imperative to providing equal educational opportunity, a

broad curriculum capable of serving the individual needs

of pupils, and a democratic environment in which future

citizens can be prepared to live in America’s multi-ethnic

society.

RESOLUTION ASKING FOR STATE ASSISTANCE

TO DESEGREGATE PUBLIC SCHOOLS

WHEREAS, The Committee of 75 has recommended school

integration on a metropolitan basis, and

WHEREAS, the State of Ohio has responsibility and authority

for the operation of public schools, and the State Board

of Education has the duty to administer the laws relating

generally to the operation of the schools, and

WHEREAS, the Ohic Attorney General has ruled that the

State Board of Education has the authority to restrict

funding in any school district in which said Board finds

as a matter of fact that racial segregation exists,

NOW, THEREFORE, BE IT RESOLVED by the Board of

Education of the City School District of Dayton:

2la

1. That this Board hereby petitions the State of Ohio and

the State Board of Education (a) to obtain from Ohio

Civil Rights Commission, U.S. Office of Education and

such other sources as it may deem useful, data on racial

isolation of faculty, staffs and pupils within and among

the several school districts as presently constituted in

the metropolitan Dayton area; (b) to develop guidelines

and criteria as may be necessary to assure an education-

ally and socially viable mix of pupils, within the socio-

economic characteristics of the metropolitan area as a

whole; (c) to require said districts to cooperate in pre-

paring and implementing a plan for assignment of faculty,

staffs and pupils in accordance with said guidelines and

criteria, and (d) to assure adequate funding from state

and district sources to continue the operation of the

schools and the implementation of said plans throughout

the period of transition and thereafter.

2. That said plans be developed by September 1, 1972 and

fully implemented not later than September 1, 1973.

3. That the Clerk of the Board forward a true copy of this

resolution to the Governor of the State of Ohio, the

Speaker of the House of Representatives, the President

« of the Ohio Senate and the President of the State Board

of Education.

RESOLUTION ORDERING THE RACIAL AND

ECONOMIC INTEGRATION OF PUPILS IN THE

DAYTON PUBLIC SCHOOLS

WHEREAS, the Board of Education of the Dayton City

School District recognizes a moral and legal duty to

provide quality non-segregated education for all students

in the district, and,

WHEREAS, integrated education is vital to the achievement

22a

of quality education for all pupils, black and white, rich

and poor, and,

That this Board view the racial and ethnic mix of the

Dayton City School District and of the metropolitan area

as assets; that this population, if reflected in each school,

could itself contribute to people’s learning from each

other; and that as a whole, the metropolitan area repre-

sents a nearly ideal cross section of the nation that could

permit schools here to become a model of American

democracy in action.

That this Board hereby invites and urges agencies of the

federal, state, and local governments and organizations of

religious, business, labor, education, communications,

civic service, and real estate to assist the Board in de-

segregation of Dayton schools and to pledge publicly

their accelerated efforts to bring about desegregation in

housing, education and employment throughout the Day-

ton metropolitan area.

That the Clerk of The Board be and hereby is directed

to forward a true copy of this resolution to the following:

Governor of the State of Ohio

President of the State Board of Education

Speaker of the Ohio House of Representatives

President of the Ohio Senate

Montgomery County Members of the Ohio Genera

Assembly and United States Congress. —

Montgomery County Commissioners

Dayton City Commissioners

Montgomery County Council of Governments

City Plan Board

Miami Valley Regional Planning Commission

Miami Valley Regional Transit Authority

Metropolitan Housing Authority

Apartment Owners Associations

Area Progress Council

23a

Assembly of Area Councils

Chairmen of Democratic and Republican Organizations

Community Affairs Committee

Congress of Representative East Dayton Organizations

Dayton Advisory Council on Education

Dayton Area Board of Realtors

Dayton Area Chamber of Commerce

Dayton Area Junior Chamber of Commerce

Dayton Building Trades Council

Dayton Classroom Teachers Association

Dayton-Miami Valley AFL-CIO

Dayton Model Cities Planning Council, Inc.

Dayton Public Service Union

Dayton Urban League

Deans of Area Colleges of Education

Elementary Principals Association

Metropolitan Churches United

Miami Valley Consortium of Colleges and Universities

Montgomery County Community Action Agency

Montgomery County Council of PTAs

National Association for the Advancement of Colored

People

Ohio Association of Public School Employees

Presidents Club

Secondary Principals Association

Southern Christian Leadership Conference

WHEREAS, the Fourteenth amendment to the United States

Constitution and the mandate of the United States

Supreme Court in Brown v. Board of Education decision

and subsequent court decisions place an affirmative duty

to dis-establish the segregated attendance patterns which

result in whole or in part from its actions and inactions

in order to equalize educational opportunity, and,

WHEREAS, segregated educational opportunity and unequal

educational opportunities for minority and poor students

now exist in the Dayton public schools, and,

24a

WHEREAS, this inequality exists as a result of the acts and

omissions of the Board and preceding Boards in their

decisions concerning the site selection of school buildings,

size of school buildings, changes and adoption of school

attendance boundaries, pupil assignment practices,

faculty and staff hiring and assignment practices and,

WHEREAS, this Board has requested and received reports of

findings and recommendations from the State Department

of Education and the Committee of 75,

NOW, THEREFORE, BE IT RESOLVED by the Board of

Education of the City School District of Dayton that it

is the policy of this Board that each school shall enroll

pupils in a manner which substantially reflects the racial

and economic characteristics of the district as a whole.

The Board recognizes that implementation of this policy

requires departure from past practices and requires

special planning to assure a smooth transition. The Board

therefore directs:

That the superintendent in consultation with professional

staff and the representatives of employee organizations,

design and implement a mandatory program of in-service

education involving all staff members to prepare staff for

changes in enrollments and to develop an individualized,

multi-ethnic curriculum in each school.

That Dayton Advisory Council on Education be re-

quested to organize a Community Involvement Advisory

Committee and a Lay Citizens Financial Review Com-

mittee to advise the superintendant during the course of

planning and implementing integration programs, as

recommended by the Committee of 75.

That the superintendent be and hereby is directed to

develop and implement plans for the racial and economic

integration of pupils using the following guidelines and

criteria:

25a

a. Attendance districts as presently constituted are re-

scinded effective September 1, 1972.

b. No building shall have a racial composition and family

income characteristics substantially disproportionate to

the district as a whole.

c. After determination of building capacities and racial

and economic characteristics of attendance areas,

pupils will be assigned to a school in which such

assignment would contribute to a mix as in b. above.

d. Freedom of Enrollment policy with the exception of

transfers for course enrollment shall be eliminated

by September 1, 1972.

e. Desegregation is to be completed by September, 1972.

f. Nothing herein shall be construed to limit the estab-

lishment of magnet, demonstration, specialized or

other education complexes, provided that the sites for

instruction meet the criterial in c. above.

g. Transportation shall be held to a minimum, but is

specifically included as one means of implementing

this policy.

this policy statement, recommendations of the Committee

of 75, are hereby adopted and may be used in planning

and implementing school integration.

That the superintendent report on progress and problems

concerning implementation of this policy at least every

sixty days and that a program for continuous evaluation

throughout the phases of implementation be developed

by July 31, 1972.

That the superintendent prepare applications for supple-

mentary financial assistance from state, federal and other

sources that may become available to improve the quality

of education and achieve the goals of the Committee of

75 report.

26a

B. DISTRICT COURT'S JULY 13, 1973 SUPPLE-

MENTAL OPINION ON REMEDY.

(Filed July 13, 1973)

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Civil No. 72-137

MARK BRINKMAN, et al,

* Plaintiffs

JOHN J. GILLIGAN, Governor

of the State of Ohio, et al,

Defendants

SUPPLEMENTAL ORDER ON REMEDY

Pursuant to order of this Court dated February 7, 1973, the

defendant School Board of the City of Dayton has submitted

a desegregation plan for consideration. A separate plan has

been submitted by the minority members of the Dayton School

Board, as has one by the Dayton Classroom Teachers’ Associa-

tion, whose motion to file as amicus curiae in this matter is

hereby GRANTED. Exhaustive memoranda have likewise

been filed by interested parties. The matter is now before the

court for determination.

The plan submitted by the defendant Board contains eleven

points: Four are directed to the specific requirements imposed

by this Court and seven are in response to the Court’s sugges-

27a

tion that additional action be undertaken. Such additional ac-

tion was not specifically mandated by the Court. We do, how-

ever, note our disappointment at the limited nature of Points

V through XI. While defendant School Board can assert that

it was not required by the Court to go as far as it has, a re-

sponse can be made with equal accuracy that the community

relies on the elected members of the School Board to approach

the present problem in a sensitive and understanding fashion.

The Board’s proposals, unfortunately, do not convince us that

they have completely attained this desired goal.

We turn to the four points of the plan required by the

Court’s order. Point I eliminates the optional zones and their

attendant segregatory effects. Point III provides for non-

racially based faculty assignment practices. Point IV provides

for the proper hiring policies of classified personnel. Points I,

III and IV are in accord with the requirements of the Court’s

previous order and as to them, the plan of defendant School

Board of the City of Dayton is hereby APPROVED.

Point II, however, which deals with Freedom of Enrollment

Priorities, does not entirely meet the required standards. It

will be conditionally accepted for elementary schools and

middle schools for the school year 1973-74. It will not be

accepted for the high schools.

As to the Dayton high schools, the Board is hereby directed

to achieve the following:

(1) Any student eligible to attend a Dayton public high

school may attend any high school within the Day-

ton Public School district, provided that students

presently enrolled in high schools shall have first

priority to complete their education therein.

(2) Each incoming ninth grade class and all vacancies

in the tenth, eleventh and twelfth grade classes

Where there is insufficient capacity for all pupils

seeking admission, a random selection plan shall be

used.

28a

(3) Only insufficient capacity shall be deemed reason

to exclude any applying pupil.

(4) ‘Transportation shall be the responsibility of the

Board of Education for all students eligible and

approved for transfer outside of the attendance

area of such students’ residences.

The defendant Board of Education will submit to this Court

within thirty (30) days of the date of this Order a revised

plan to comply with the above. Included in such plan will be

a listing of the pupil capacity by grade of each of the high

schools within the Dayton Public School District. Plaintiffs

will be granted an opportunity to present evidence as to such

capacity. The foregoing admission plan shall not apply to the

Patterson-Stivers Vocational High School.

There remain for consideration two further questions which

the Court has reserved: The matter of the so-called Metropoli-

tan School District and the status of defendants State of Ohio

through its Governor and the Ohio Department of Education.

The findings by the Court in its Order of February 7, 1973,

and the disposition of the Board of Education’s plan appear

to moot the metropolitan question and to require the dismissal

of these non-Dayton defendants. Plaintiffs are hereby granted

thirty (30) days within which to file memoranda on either or

both of these questions. Defendants are granted thirty (30)

days from the date of such filing to file answer memoranda and

plaintiffs are granted thirty (30) days from defendants’ filing

to file reply memoranda. An evidentiary hearing will be

granted upon either of such questions upon the showing of a

need therefor.

This supplemental Order has been delayed pending study

of the decision of the Supreme Court of the United States in

Keyes v. School District No. 1, Denver, Colorado, —— US.

——, 42 U.S.L.W. 5002 (June 21, 1973). The Keyes case dealt,

for the first time, with a large northern city whose school

29a

system had never been operated under mandatory segregation

laws, but which had nevertheless acted in a way that helped

create a racially segregative system. It is significant both as a

major landmark in the continuing definition of the Equal Pro-

tection clause within the context of school desegregation that

began with Brown v. Board of Education, 347 U.S. 483 (1954);

and as an indication of the views and attitude of the present

Supreme Court. It will of necessity have a major impact upon

the future direction of the public school systems in the United

States including the one in Dayton, Ohio.

The concurring opinion of Justice Powell must rank among

the clearest and most logical expositions of a most troubling and

difficult subject. This court proposes to follow the rationale

set forth by Justice Powell. We place the burden upon the

Board to comply to the fullest extent possible with the views

stated therein. We place particular significance on the follow-

ing statement of Justice Powell:

“The Term, “integrated school system,’ presupposes, of

course, a total absence of any laws, regulations or policies

supportive of the type of ‘legalized’ segregation con-

demned in Brown.

“A system would be integrated in accord with consti-

tutional standards if the responsible authorities had taken

appropriate steps to: (i) integrate faculties and admin-

istration; (ii) scrupulously assure equality of facilities,

instructions and curricula opportunities throughout the

district; (iii) utilize their authority to draw attendance

zones to promote integration; and (iv) locate new schools,

close to old ones, and determine the size and grade cate-

gories with the same objective in mind. Where school

authorities decide to undertake the transportation of stu-

dents, this also must be with integrative opportunities in

mind.”

This Court likewise adopts as its guiding definition the fol-

lowing statement from Justice Powell:

30a

“An integrated school system does not mean, and indeed

could not mean, in view of the residential patterns of

most of our major metropolitan areas, that every school

must in fact be an integrated unit. A school which hap-

pens to be all or predominately white or all or predomin-

ately black is not a ‘segregated’ school in an unconstitu-

tional sense if the system itself is a genuinely integrated

one.

Keyes v. School District No. 1, Denver, supra, 41 U.S.L.W.

at 5012.

Relating the standards established by Justice Powell to the

Dayton situation, the Court has found that appropriate steps to

integrate ficulties and administration have been instituted

and will be continued. There has been and there will be an

increasing level of transportation of students for the purpose

of promoting integrative opportunities through the Freedom

of Enrollment priorities.

There is presently no evidence of a failure of equality of

facilities, instructions and curricula opportunities nor has there

been a persuasive proof that the Board, in recent times, drew

attendance lines or built new facilities for the avowed purpose

of minimizing integration. However, there has been evidence

which indicates that the affirmative promotion of integration

through these essential functions of the Board has not held an

important place in the Board’s priorities.

The Powell rationale will operate prospectively. The Board’s

planning and implementation units must become capable of

and sensitive to the racial effects which flow from the drawing

of attendance lines, the construction and improvement of

school facilities and the assignment of faculty, staff and pupils.

All of such actions must henceforth be examined for their

“integration impact.”

These are long range goals and a further opportunity should

be given to the Dayton School Board in which to plan and

implement them. Accordingly, while this Court is most re-

3la

luctant to continue a “federal receivership” of the Dayton

School System, see Keyes v. School District No. 1, Denver,

supra, 41 U.S.L.W. 5022 (Rehnquist, J. dissenting), it would

seem that a proper disposition of this problem requires a re-

tention of jurisdiction while a reasonable period of time is given

to the School Board for this purpose. Therefore, as to these

long-range criteria, the Court will re-examine the Dayton

School System at the end of academic year 1973-74 and de-

termine, at that time, whether or not additional judicial action

is required.

Nothing that we have said today should be interpreted as a

repudiation of the neighborhood school concept. To the con-

trary, it is this concept which often represents the bedrock

strength of the public school systems and steps may be properly

taken to preserve it. See Keyes v. School District No. 1,

Denver, supra, 41 U.S.L.W. 5018-5020 ( Powell, J., concurring

in part and dissenting in part); Deal v. Cincinnati Board of

Education, 396 F.2d 55, 60 (C.A.6 1966). Where school lines

in Dayton have been drawn without improper racial intent,

they will be allowed to stand. Where they have not yet been

drawn, as in the case of the still embryonic system of middle

schools, they should be drawn in such a way as to maximize

integrative goals.

The essential principle which guides this Court is a para-

phrase from Swann v. Charlotte-Mecklenburg Board of Educa-

tion, 402 U.S. 1 at pages 15-16.

It is the function of the federal courts only to eliminate a

deprivation of constitutional rights; it is the duty of local school

boards to operate and maintain integrated school systems.

IT IS SO ORDERED.

/s/ CARL B. RUBIN

United States District Judge

} 32a

C. COURT OF APPEALS’ AUGUST 20, 1974

OPINION.

(Filed August 20, 1974)

Nos, 73-1974-75

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Mark BRINKMAN, ET AL.,

Plaintiffs-Appellants,

Vv.

Joun J. GILLIGAN, ET AL., APPEAL from the

Defendants-Appellees.| United States District

tren nnn nnn nn nnn nnn nnn nnn nnn n nn nana anna: | Court for the South-

Mark BrINKMAN, ET AL., ern District oi Ohio,

Plaintiffs-Appellees,| Eastern Division.

Dayton BoarD OF EDUCATION,

Defendants-Appellants.

Before Puutuies, Chief Judge, and Peck and Miter, Circuit

Judges.

Prutuirs, Chief Judge. This is a school desegregation case

directed against the public school system of Dayton, Ohio.

For the reasons set forth below, we affirm in part and remand

the case to the District Court for further proceedings.

Plaintiffs-appellants are black and white Dayton parents who

bring this class action on their own behalf, on behalf of their

minor children, and on behalf of all others similarly situated.

33a

In addition, the National Association for the Advancement

of Colored People (NAACP) joined as a party plaintiff. The

complaint named the Governor of Ohio, the Attorney General

of Ohio, the Ohio State Board of Education, the Superin-

tendent of Public Instruction of the Ohio Department of Edu-

cation, the Dayton Board of ‘Education, the six individual

members of the Dayton Board and the Superintendent of the

Dayton School District as parties defendants.’ The Dayton

Board of Education has cross appealed.

I. Chronology of Proceedings

In their complaint filed on April 17, 1972, appellants sought,

inter alia, an injunction enjoining the Dayton defendants from

continuing their allegedly unconstitutional policy of operating

the public schools in Dayton in a manner that perpetuated

racial segregation. The complaint further averred numerous

racially discriminatory practices for which the State defendants

had allocated educational resources.

The complaint was filed in the United States District Court

for the Southern District of Ohio, Eastern Division, which is

located at Columbus, Ohio, rather than in the Western Division

at Dayton (the situs of the subject schools) on the basis that

the State defendants were domiciled in Franklin County

(Columbus). Motions to dismiss for failure to join necesary

parties and for improper venue and alternative motions to

transfer the action to the District Court at Dayton were filed

by the State defendants, the Dayton Board of Education and

three individual Dayton Board members. On June 22, 1972,

the District Court overruled the motions to dismiss for im-

proper venue and denied the motions to transfer, but did not

' Hereinafter, the Governor, Attorney General, State Board of

Education, and the Superintendent of Public Insiruction will some-

times be referred to collectively as the “State defendants.” Here-

inafter, the Dayton Board of Education, its members, and its Super-

intendent sometimes will be referred to collectively as the “Dayton

defendants.”

34a

rule on the motion to dismiss for want of necessary parties.

Thereafter, on July 24, 1972, the Dayton defendants and the

State defendants filed their answers denying the material alle-

gations of the plaintiffs’ complaint.

In accordance with the proposed order of procedure, an ex-

pedited hearing before District Judge Carl B. Rubin, was con-

ducted from November 13 through December 1, 1972, limited

to the single issue of whether the school system of Dayton was

a segregated one by reason of acts of the Dayton Board of

Education. On February 7, 1973, the District Court filed its

Findings of Fact and Memorandum Opinion of Law in which

it found that (1) racially imbalanced schools, (2) optional at-

tendance zones, and (3) rescission by the Dayton Board of

Education of three resolutions calling for racial and economic

balance in each school in the Dayton system were “cumula-

tively in violation of the Equal Protection Clause” of the

Constitution. In its February 7, 1973, decision, the District

Court ordered the Dayton Board to submit a plan which would

(1) abolish all optional zones, (2) restate the priorities of the

Board’s Freedom of Enrollment program so that racial trans-

fers would take precedence over curriculum transfers, (3)

maintain faculty assignment practices so that each school

would continue to reflect the approximate ratio of the total

black to white faculty in the Dayton system, and (4) establish

hiring practices that would enable the clerical and main-

tenance personnel employed by the Board to approximate the

proportion of black-to-white population existing within the

Dayton system. The District Court further stated that the

foregoing elements “shall be considered as a minimum” and

that the plan to be submitted by the Board should otherwise

conform in all respects to the requirements of law, citing

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

1 (1971) and Davis v. Board of School Commissioners of

Mobile County, 402 U.S. 33 (1971).

In compliance with the February 7, 1973, order of the Dis-

trict Court, the Dayton Board on March 19, 1973, submitted

35a

a desegregation plan to the District Court. This plan con-

tained eleven points which are summarized below:

I. Elimination of Optional Zones — eliminated optional

attendance zones for elementary and high school

students.

II. Freedom of Enrollment Priorities — revised the sys-

tem’s Freedom of Enrollment program in accord-

ance with a specified set of priorities.

III. Faculty Assignment Practices — provided that fac-

ulty assignments for each school in the system

should reflect the ratio of white to black faculty in

the entire system.

IV. Hiring Policies for Classified Personnel — provided

that blacks would be hired for classified positions,

e.g. clerical, custodial and food service staff, to

reflect the proportion of the black-to-white pop-

ulation residing within the Dayton School District.

V. Science Environmental Program — proposed the

establishment of a city-wide elementary science

program guided by a trained staff working at four

centers. The program was to be mandatory and

children were to be bused to produce a racial mix

that approximates the ratio between black and

white students in the system as a whole.

VI. Patterson-Stivers Vocational High School — com-

bined two existing vocational schools into a new

unified cooperative school with a district-wide at-

tendance area.

VII. The Musical Stereopticon — formed an elementary

and high school band orchestra and chorus on an

all-city basis.

VIII. Integrated Athletics — required schools that have no

minorities on their teams to schedule schools that

do have minorities represented. High schoo! sched-

ules were to be administered by a central athletic

office to insure that racial isolation did not exist.

36a

IX. Minority Language Program — required all class-

room teachers and administrators at the elementary

school level to participate in a series of in-service

workshops on linguistic differences that exist in

American English.

X. Living Arts Center — created departments in art,

creative writing, dance and drama to permit stu-

dets, teachers, and parents to expand their knowl-

edge in these areas.

XI. Control Centers — created rumor control centers,

school guidance centers, and area learning centers

to create a more secure climate for quality educa-

tion in the school system.

In addition to the plan submitted by the Dayton Board, sep-

arate plans were submitted to the District Court by the

minority members of the Dayton Board and the Dayton Class-

room Teachers’ Association. The Board minority submitted its

more comprehensive plan because it believed that the plan of

the Board majority would maintain the status quo and hence

did not comply with the February 7, 1973, order of the District

Court to conform in all respects with Swann, supra, and Davis

supra. Further, the plaintiffs-appellants filed objections to the

plan of the Board majority primarily on the grounds that the

majority plan “froze in” the present unconstitutional system of

segregation and would fail to eliminate racialy identifiable

schools when other alternative remedies, such as busing of

children to other schools, were available.

On July 13, 1973, after considering the three desegregation

plans before it, the District Court issued its Supplemental

Order on Remedy. The District Court essentialy accepted

the plan of the Board majority except that the Dayton Board

was ordered to submit a freedom of choice plan for the Dayton

high schools. The District Court, however, expressed its

“disappointment at the limited nature of Points V through XI”

37a

of the plan of the Board majority, and stated that the desired

goal was not attained completely by the majority plan.

The District Court then stated:

‘There remain for consideration two further questions

which the Court has reserved: The matter of the so-called

Metropolitan School District and the status of defendants

State of Ohio through its Governor and the Ohio De-

partment of Education.

“The findings by the Court in its Order of February 7,

1973, and the disposition of the Board of Education’s

plan appear to moot the metropolitan question and to re-

quire the dismissal of these non-Dayton defendants. Plain-

tiffs are hereby granted thirty (30) days within which to

file memoranda on either or both of thes questions. De-

fendants are granted thirty (30) days from the date of

such filing to file answer memoranda and plainiffs are

granted thirty (30, days from defendants’ filing to file

reply memoranda. An evidentiary hearing will be granted

upon either of such questions upon the showing of a need

therefor.”

The District Court concluded its July 13, 1973, order as fol-

lows:

“Nothing that we have said today should be interpreted

as a repudiation of the neighborhood school concept. To

the contrary, it is this concept which often represents the

bedrock strength of public school systems and steps may

be properly taken to preserve it. See Keyes v. School

District No. 1, Denver, supra, 41 U.S.L.W. 5013-5020

(Powell, J., concurring in part and dissenting in part);

Deal v. Cincinnati Board of Education, 396 F.2d 55, 60

(C. A. 6 1966). Where school lines in Dayton have been

drawn without improper racial intent, they will be allowed

to stand. Where they have not yet been drawn, as in the

case of the still embryonic system of middle schools, they

should be drawn in such a way as to maximize integrative

goals.

88a

“The essential principle which guides this Court is

a paraphrase from Swann v. Charlotte-Mecklenburg Board

of Education, 402 U.S. 1 at pages 15-16.

“It is the function of the federal courts only to elimin-

ate a deprivation of constitutional rights; it is the duty of

local school boards to operate and maintain integrated

schools systems.”

Following the July 13, 1973, order of the District Court, the

plaintiffs-appellants in a letter dated July 26, 1973, reminded

the District Court that by its own order of procedure evidence

with respect to the metropolitan and state aspects of the con-

troversy had been excluded from the earlier hearing. On

August 10, 1973, the Dayton Board submitted a revised plan

incorporating the court’s freedom of choice plan for the Dayton

high schools. The plaintiffs-appellants filed their notice of

appeal from the two orders of the District Court on July 23,

1973. The Dayton Board cross appealed from those orders on

August 13, 1973.

Thereafter, on September 25, 1973, the Dayton Board moved

this court to dismiss the pending appeal of the plaintiffs-

appellants for want of jurisdiction on the ground that no final

order had been entered by the District Court. In an unre-

ported order filed on January 17, 1974, this court denied the

Dayton Board’s motion to dismiss, saying:

“Said motion to dismiss is hereby denied, it appearing

to the court that the District Judge’s supplemental order

on remedy, dated July 13, 1973, approves a proposed

desegregation plan with added instruction as to how it

is to be carried into effect, and hence, appears to be in

the nature of a temporary injunction under 28 U.S.C.

§ 1292(a)(1) (1970).”

We have heard oral arguments and the case is now before

the court for decision.

39a

II. Historical Background of School Segregation in

Dayton

Ohio law has long mandated an integrated public school

system. Ohio Revised Code, § 3313.48, provides in relevant

part:

“The board of education, of each city, exempted village,

local, and joint vocational school district shall provide for

the free education of the youth of school age within the

district under its jurisdiction, at such places as will be

most convenient for the attendance of the largest number

thereof.”

This has been the law of Ohio since February 22, 1887, when

it was enacted by 84 Ohio Laws 34. That statute was upheld

by the Supreme Court of Ohio in 1888 in Board of Education

v. State, 45 Ohio St. 555, 556, 16 N.E. 373, in which the court

stated:

“[S]ection 4008 having been repealed by the act of the

general assembly passed February 22, 1887 (84 Ohio L.

34), separate schools for colored children have been

abolished and no regulation can be made under section

4013, that does not apply to all children irrespective of

race or color.”

Further, the District Court made the following historical

determination, that is not challenged on appeal, as a finding of

fact:

“(1) The evidence presented has established isolated

but repeated instances of failure by the Dayton School

Board to meet the standards of the Ohio law mandating

an integrated school system. Such instances include a

physical segregation into separate buildings of pupils and

teachers by race at the Garfield School in the early 1920’s,

a denial to blacks of access to swimming pools in high

schools in the 1930’s and 1940’s and the exclusion, be-

tween 1938 and 1948, of black high school teams from the

city athletic conference.” (Footnotes omitted. )

40a

The physical segregation into separate buildings of pupils and

teachers by race was ruled illegal in Board of Education of

School District of City of Dayton v. State, ex rel. Reese, 114

Ohio St. 188, 189, 151 N.E. 39 (1926).

In 1956, following Brown v. Board of Education, 347 U.S.

483 (1954), the Ohio Attorney General ruled that the Ohio

State Board of Education had the primary responsibility for

administering the laws relating to the distribution of state and

federal funds to local school districts and that such funds

should not be distributed, absent good and sufficient reasons,

by the State Board to local school districts which segregated

pupils on the basis of race in violation of Brown. Despite

protests over the past twenty years from the Dayton branch of

the NAACP and others, the Dayton Board has maintained a

system wherein the great majority of schools today have stu-

dent populations which are racially imbalanced. The State

Board of Education has permitted this system to continue

with a steady flow of state and federal money.

On March 17, 1969, the Acting Director of the Office for

Civil Rights, United States Department of Health, Education

and Welfare (HEW), notified the Dayton School authorities

that, as a result of a compliance review conducted by federal

officials, his office had concluded that the Dayton school dis-

trict was not complying with Title VI of the Civil Rights

Act of 1964. In particular, the Acting Director stated:

“An analysis of the data obtained during the review estab-

lishes that your district pursues a policy of racially mo-

tivated assignment of teachers and other professional staff.

Thus, all Negro principals are assigned to predominantly

Negro schools, as are 11 of the 14 Negro assistant prin-

cipals; 156 out of 181 Negro high school teachers are

assigned to schools where Negroes constitute 92 percent

of the total enrollment. Over 85 percent of the Negro

elementary teachers instruct in schools having a prepoan-

derence of Negro pupils, and only 14 percent of teachers

4la

of the white race are in schools where Negroes are in the

majority. The assignment of counsellors and coaches fol-

lows a similar pattern.

“The existence in your district of a substantial duality in

terms of race or color with respect to distribution of

pupils in the various schools, is a matter of concern to us.

The fact appears to be that of a total of 5,627 Negro high

school pupils, approximately 85 percent are concentrated

in 3 high schools in which the percentage of Negro

attendence ranges from 92.3 percent to 100 percent.

Similarly, 15,479 (approximately 85 percent) Negro ele-

mentary pupils attend 20 out of the 53 elementary

schools in your district. It is noteworthy that in 17 of

these 20 schools, Negroes constitute 90-100 percent of

the total enrollment.

“Our review also indicates that students at Roosevelt

High School are not afforded the same educational oppor-

tunity as other students in your system.”

On June 7, 1971, the Ohio State Department of Education

presented a series of recommendations to the Dayton Board

on how to achieve constitutionally required desegregation. In

its letter conveying the recommendations, a State Department

of Education report stated:

“As the resolution of April 29, 1971 (of the Dayton

Board), admitted, ‘the Dayton Board of Education

recognizes that unequal educational opportunities for

minority students now exists.’ Inequality of such op-

portunities, for minority and majority students, has

characterized the Dayton public school system through-

out its history.

“Since the Board, as an agency of state government, has

created the inequality which offends the Constitution, the

Ohio State Department of Education must advise that the

Dayton Board of Education clearly has an affirmative

42a

duty to comply with the Constitution; that is, as the

Supreme Court has stated, ‘to eliminate from the public

schools all vestiges of state-imposed segregation.’ ”

In particular, the State Department report was especially criti-

cal of the process of conversion to feeder and middle schools,

stating that the following seemed to be occurring:

“1. two sets of schools will be totally black;

“2. racial isolation will actually be increased in one set

of schools; and

“3. only in the Dayton View area, which was previously

integrated, could conversion to middle schools

possibly result in reduction of racial and economic

isolation and insulation.

“If what appears to be happening with middle schools is

in fact happening, then Dayton has only added one more

action to a long list of state-imposed activities which are

offensive to the Constitution and which are degrading

to schoolchildren. Along with many other affirmative

duties which the Dayton Board must fulfill, correction of

this particular offense must occur.”

Although the recommendations of the State Department were

not complied with in full, the State Board of Education con-

tinued to aid in financing the operation of Dayton schools.

Finally, pursuant to the resolution of the Dayton Board

passed at its April 29, 1971, meeting, the President of the

Dayton Board appointed a broadly representative committee

to evaluate and advise the Board on plans to reduce racial

isolation and improve educational opportunities in Dayton.

This committee became known as the Committee of 75, al-

though its membership was later expanded to include eleven

students. At its first meeting, on August 30, 1971, the Com-

mittee was charged as follows by the Board President:

43a

“We recognize, and the statistical data substantiates, the

fact that unequal educational opportunities for the poor

and black students now exist in the Dayton School Dis-

trict. The Board of Education has gone on record by

setting quality integrated education as its goal. We have

admitted that the district is guilty of procedures which

have led to the racial isolation of school children.

“It is this committee’s responsibility to establish the evai-

uation elements to be applied to a developed plan or plans

and advise the Dayton Board of Education accordingly.

We do hope that you would set up guidelines and/or

methods by which the community will become meaning-

fully involved.

“You are an arm of the Dayton Board of Education with

the task of supplying input to the Board. It remains the

responsibility of the Board of Education to make official

approval of your point. We feel very strongly that the

establishment of this committee is not an attempt to

abdicate its responsibility or delegate its authority, but

rather an attempt to utilize the enrichment of citizen

participation. It is hoped that the school councils, and

organized groups of school-oriented citizens of the school

district, will be an avenue you may use for additional

participation.

“If there be a fear that you are here to architect a master

plan for ‘busing’ — ‘t’'ain’t true.’ You are here in an at-

temp to supply your input of the ingredients for excellen-

cy to any plan that the administration and/or consultants

may recommend. It is our sincere hope that when a plan

is set for implementation, it should be that one or the one

that embraces the wishes of the citizens of the Dayton

School District and not one imposed by federal, state or

court mandate.”

After several months of study, the Committee of 75 issued

its report in the late fall of 1971. The report recognized the

44a

Dayton Board’s casual responsibility for the condition of

segregation and the imperative need to end one race school-

ing, and suggested the following tentative approaches to ac-

complish desegregation in the Dayton school system:

“6.

“8.

Segregated education, because it perpetuates and

condones economic and racial isolation, is both il-

legal and inferior.

The school children of Dayton have suffered far too

long under the crippling handicaps imposed by

racial and economic isolation.

We must resolve now as a total community to end

inferior segregated education once and for all.

Time is running out. Unless we act now the divi-

sions generated by segregation will destroy us.

Unless we act now court orders may impose upon

us what all of us will regret.

Initiative in the struggle against segregated educa-

tion belongs to the Dayton Board of Education. We

cannot wait for housing and job patterns to change

while we defy the law of the land.

To lift the plague of segregated education in Dayton

immediate appeal must be addressed to the school

systems surrounding Dayton as well as to the ap-

propriate state and national agencies involved.

Desegregation is not enough. To end racial and

economic isolation we must not rest until we have

achieved true integration, until the differing ethnic

and racial groups among us are able to live side by

side in mutual respect.

The personal cost of achieving such true integration

will be high because to achieve such integration we

must persist in dialogue until the differences that

divide us have been resolved. We can no longer

allow the fear of busing (to) stifle such dialogue.

45a

“9. The financial cost of true integration will also be

high. At least 1 per cent of the current budget, ex-

clusive of federal and state grants, should be allo-

cated to this sector.

“10. Integrated quality education requires constant vigi-

lance. We must not only develop support systems

to undergird every group involved in the changes

proposed but we must nurture these groups by con-

tinuing attention to curricula, buildings, and in-

service training.”

The report of the Committee of 75 concluded as follows:

“Summary. The presence and magnitude of the problem

before us needs to be recognized by all the citizens of

Dayton. Quality integrated education can help stop the

flight to the suburbs, break the cycle of poor education,

and the lack of job skills which handicap the minorities.

The cost of this type of education will be small in relation

to the total benefits society will reap.”

Thereafter, at its regular meeting on December 8, 1971, the

Dayton Board of Education passed three resolutions in re-

sponse to the report of the Committee of 75. The first resolu-

tion provided, in part, as follows:

“WHEREAS, the Committee of 75, in reporting to this

Board, has called renewed attention to the widespread

racial and economic isolation of pupils in the Dayton

Public Schools and in schools of the metropolitan Day-

ton area.

“NOW, THEREFORE, BE IT RESOLVED by the Board

of Education of the City School District of Dayton:

“1. That this Board hereby recognizes and admits that

racial and economic segregation exists in the Dayton

schools because of the actions and inactions of this

and predecessor boards in the establishment of at-

tendance districts, the location and expansion of

school buildings, pupil assignment practices, design

46a

of curriculum suitable to urban needs, the assignment

of teachers and other staff, and the conduct of student

activity programs; the past actions or inactions of the

Ohio General Assembly, the State Board of Educa-

tion, and other agencies of Federal, state, and local

government in contributing to the development and

continuation of segregated housing, education, and

employment in the Dayton metropolitan area and

other parts of Ohio; and the actions or inactions of

lending agencies, real estate interests, employers,

unions, private schools, colleges, churches, and other

organizations that have reinforced segregation.

“2. That this Board recognizes that past actions or inac-

tions of the Board of Education and residential racial

segregation are interdependent phenomena.

“3. That this Board recognizes that the black minority

population of the Dayton metropolitan area, as illus-

trated by the existence of schools of opposite racial

composition in districts with contiguous district lines,

essentially is contained within the central city of Day-

ton, as a result of discriminatory practices. Such

containment works against a viable integrated school

system within the city, and the Board asserts that a

truly effective solution is possible only through a

metropolitan approach.

“4, That this Board of Education recognizes that racial

and economic integration of student bodies in each

school is imperative to providing equal educational

opportunity, a broad curriculum capable of serving

the individual needs of pupils, and a democratic en-

vironment in which future citizens can be prepared

to live in America’s multi-ethnic society.”

The second resolution passed by the Dayton Board at its

December 8, 1971, meeting requested the assistance of the

state and federal governments in desegregating Dayton public

schools. The third resolution declared the Board policy to be

that each school in the system should enroll pupils in a manner

47a

which substantially reflected the racial and economic character-

istics of the district as a whole and directed the school super-

intendent to implement a plan of desegregation according to

the following guidelines:

“a. Attendance districts as presently constituted are

rescinded effective September 1, 1972.

“b. No building shall have a racial composition and

family income characteristics substantially dispropor-

tionate to the district as a whole.

c. After determination of building capacities and racial

and economic characteristics of attendance areas,

pupils wili be assigned to a school in which such as-

signraent would contribute to a mix as in b. above.

“d. Freedom of Enrollment policy with the exception of

transfers for course enrollment shall be eliminated by

September 1, 1972.

e. Desegregation is to be completed by September, 1972.

“f. Nothing herein shall be construed to iumit the estab-

lishment of magnet, demonstration, specialized or

other education complexes, provided that the sites for

instruction meet the criteria in c. above.

g. Transportation shall be held to a minimum, but is

specifically included as one means of implementing

this policy.”

Each of the three Board resolutions passed by a 5 to 2 vote

after a motion to table the resolution had failed by a 4 to 3

vote.

Subsequently, on January 3, 1972, the newly constituted

Dayton Board, the composition of which had been changed by

the local elections of November 1971, officially rescinded the

three resolutions passed by the prior Board at its December

8, 1971 meeting. The rescission of the three resolutions oc-

curred by votes, respectively, of 4 to 3, 4 to 2, and 4to2. The

effect of the rescissions was to reinstate the existing attendance

zones and the system’s Freedom of Enrollment program for

48a

the 1972-73 school year. The present action was filed on

April 17, 1972.

Ill. The Constitutional Violations Found by the

District Court

The District Court found three constitutional violations in

the Dayton school system, namely, (A) racially imbalanced

schools, (B) optional attendance zones, and (C) the Dayton

Board’s rescission of the three resolutions. These were held by

the District Court to be “cumulatively in violation of the

Equal Protection Clause.” Further, the District Court stated

that the rescission of the resolutions “constituted an indepen-

dent violation” of the constitutional rights of the black minority

in Dayton.

We hold that the findings of fact on which the District

Court based its conclusion of a cumulative violation are not

clearly erroneous but, to the contrary, are amply supported by

the evidence. Fed. R. Civ. P. 52(a). However, we do not pass

upon the question at the present time as to whether the

rescission of the Board resolutions in and of itself constituted

an independent violation of the Constitution.

(A) Racially Imbalanced Schools

The District Judge made the following finding of fact:

“The great majority of all schools in the Dayton system

today have student populations which are racially im-

balanced, consistent with the black-white population and

geographical distribution thereof as shown by the 1970

census. Except at the Patterson Co-op High School, where

in the past few years a concerted effort has been made to

enroll more black students, no effort has been made by

the school board of Dayton to balance by race the student

population at any particular school.” (Footnote omitted. )

With respect to this finding of fact, the District Judge

appended the following chart which graphically demonstrates

the racial imbalance in Dayton’s sixty-eight public schools.

oP er.

ERI = ithe FOR Mile =

OO AO ONAL RAO Ni al EIT le Rei Ne AOTC AEM Ct, ADE A

ee eet. ees

49a

RACIAL COMPOSITION OF DAYTON PUBLIC

SCHOOLS (1971-1972)

Elementary schools — % Black:

1. Jane Addams ..... 81.7 27. Jackson Primary .. 98.8

pias eee 8 0.6 28. Jefferson Ele. ..... 60.1

3. Belle Haven...... 5.0 29. Jefferson Primary 57.1

4. Belmont ......... i ae ee 0.0

DS peeved’ <s OO Gi, TOWOR «25. .s.as 0.0

RE pects vas SO8 a. iimodin.........:. 0.0

7. SORE. cccns Be Se ere 46

EE SS sass 03 os 5.7 34. Horace Mann .... 0.2

9. Eastmont ........ 0.0 35. McGuffey ........ 14.4

ee aoe. 97.3 36. McNary Park..... 99.4

BE OR reiki 6.8 37. Meadowdale Ele. 8.0

ae ee 0.1 38. Miami Chapel .... 99.9

13. Fairview Ele. ..... 1.7 39. Patterson-Kennedy 0.0

14. Ft. McKinley ..... 0.0 40. Residence Park Ele. 98.8

a 0.0 41. Residence Park Pri. 99.3

16. Gardendale ...... rn 7.0

17. Gettysburg ....... a err esir 0.1

a eee 21.1 44. Shoup Mill ....... 7.1

pk a 0.1 45. Louise Troy ...... 100.0

20. Grace A. Greene .. 96.8 46. Valerie .......... 7.5

21. Hawthorne ....... 0.0 47. Van Cleve ....... 1.1

22. Hickorydale ...... 6.6 48. Washington ...... 19.4

23. Highview ........ G70: @. Weavet .....0.>.: 99.9

a | ee 0.0 50. Webster ......... 0.0

ee ere 99.0 51. Westwood ....... 99.4

26. Jackson Ele. ...... 99.1 52. Wogaman ....... 100.0

Of 52 elementary schools in use as of September, 1972, 29

are more than 90% white and 15 are more than 90% black.

The balance range from 19.4% to 60.1% black.

50a

Middle Schools — % Black:

l. MacFarlane ...... 99.6

S. Whittier ......... 99.3

3. Cornell Heights ... 80.5

4. Longfellow ....... 64.1

5. Orville Wright .... 8.1

High Schools — % Black:

5 Se es awe ein 100.0

& Roecsevelt ........ 100.0

Dh. PR aka ons a cher 95.8

4. Colonel White .... 54.6

5. Patterson Co-op .. 32.9

Ge hs sa cs 24.1

Fa) EE so ee hela 14.0

8. Meadowdale ..... 10.6

Oh SS Ge hckca sks aoe 9.8

10. Wilbur Wright .... 9.2

Eh. Memmomt ...4..... 5.2

Enrollment data from the Dayton system reveals the sub-

stantial lack of progress that has been made over the past

23 years in integrating the Dayton school system. In 1951-52,

of 47 schools, 38 had student enrollments 90 percent or more

one race (4 black, 34 white). Of the 35,000 pupils in the

district, 19 per cent were black. Yet over half of all black

pupils were enrolled in the four all black schools; and 77.6

per cent of all pupils were assigned to virtual one race schools.

“Virtual one race schools” refers to schools with student

enrollments 90 per cent or more one race. In 1963-64, of

64 schools, 57 had student enrollments 90 per cent or more

one race (13 black, 44 white). Of the 57,400 pupils in the

district, 27.8 per cent were black. Yet 79.2 per cent of all

black pupils were enrolled in the 13 black schools; and 88.8

per cent of all pupils were enrolled in such one race schools.

5la

In 1971-72 (the year the complaint was filed), of 69 schools,

49 had student enrollments 90 per cent or more one race

(21 black, 28 white). Of the 54,000 pupils, 42.7 per cent

were black; and 75.9 per cent of all black students were

assigned to the 21 black schools. In 1972-73 (the year the

hearing was held) of 68 schools, 47 were virtually one race

(22 black, 25 white); fully 80 per cent of all classrooms were

virtually one race. (Of the 50,000 pupils in the district, 44.6

per cent were black).

Every school which was 90 per cent or more black in 1951-52

or 1963-64 or 1971-72 and which is still in use today remains

90 per cent or more black. Of the 25 white schools in

1972-73, all opened 90 per cent or more white and, if open,

were 90 per cent or more white in 1971-72, 1963-64 and 1951-

52.

(B) Optional Attendance Zones

The District Judge made the following finding of fact:

“(11) The Board of Education of the Dayton School

District has from time to time created optional zones.

Optional zones are dual or overlapping attendance areas

which allow children residing within them a choice

among two or more schools. Some optional attendance

zones were created where the more distant school geo-

graphically had better access; some were created where

the more distant school did not require the crossing of

busy intersections, commercial areas, or railroad tracks.

Many were created for the convenience of parents. There

has been evidence that at times this last concept embraced

desires motivated by racial considerations. Seven op-

tional elementary zones and four optional high school

zones exist at the present time. All of the others have

been abolished.

“The majority of optional zones had no racial signifi-

cance at the time of their creation. The Westwood-

Jackson, Roosevelt-Colonel White, and Fairview-Roth

52a

zones may have constituted exceptions to this general

rule and we cannot conclude that these did not have

adverse racial effects. Similarly, although none of the

elementary school optional zones today have any signifi-

cant potential effects in terms of increased racial separa-

tion, the same cannot be said of the high school optional

zones. Two of these zones, those between Roosevelt

and Colonel White and between Kiser and Colonel White,

are by far the largest in the system and have had the

most demonstrable racial effects in the past.”

The testimony of Dr. Gordon Foster, Director of the Florida

School Desegregation Consulting Center at the University of

Miami, indicates that the Colonel White-Roosevelt optional

attendance area is almost a classic example of segregation

practice:

“Q. Dr. Foster, with reference, first of all, to the option

attendance zones, you described certain effects.

Are there short term as well as long term effects of

the ultilization of optional attendance zones?

“A Yes. In the ones we talked about at the high

school level, if we can cite the Roosevelt-Colonel White

optional zone, and the following Colonel White-Kiser op-

tional zone, the short term effect it seems to me is to

allow whites to move out of a school assignment that

is becoming black, and I should point out that this is

not to say that in many cases that at a certain point

blacks also take advantage of this option.

“In the Colonel White-Kiser situation, for example, as

Colonel White has become blacker, we are at the point

where there are no whites apparently opting now to go

to Colonel White.”

Further testimony of Dr. Foster demonstrates the deleterious

effect that the optional attendance zones had on school integra-

tion in Dayton:

53a

“Q In what way do optional attendance areas affect

desegregation and the stability of pupil assignment to

particular schools?

“A. Well, essentially in my opinion they create in-

stability in the public in one way in terms of housing

choices where there are choices and in terms of per-

ception of whether a school is going black or staying

white, this sort of thing, so that generally where you

have an optional zone which has racial implications, you

have an unstable situation that everybody realizes is in

a changing environment. So, what it usually does is

simply accelerate whatever process is going on or work

toward the acceleration of the changing situation.

“Q. The optional attendance zones which you have

identified in your testimony today, what is your opinion

with respect to the effect or if there is any effect on racial

composition of schools in Dayton?

“A. Well, in my opinion, these accelerated and pre-

cipitated further segregation, and in those cases where

I was able to cite hard figures, I think that is very

definitely borne out, and I have no reason to believe that

in all the other cases the same thing was true although

I can’t cite actual pupil figures from year to year because

they simply aren’t available.”

We conclude that the District Court correctly found that

the optional attendance zones used in Dayton were an element

of the cumulative violation of the constitutional rights of

the appellants.

The District Judge rendered the following as a finding of

fact:

“At the general election in November, 1971, the electors

of the school district of Dayton elected three members

for a four year term commencing January 1, 1972. Issues

54a

at such election involved the matter of school attendance

zones and transportation of pupils. Two incumbent mem-

bers of the Board ran for reelection, one did not. One

incumbent was relected and two new members of the

Board were added. On December 8, 1971, the 1971

Board met to consider resolutions dealing with transporta-

tion of students and zone attendance lines. All members

present were duly elected, qualified and acting members

of the Board, although two of them were so-called ‘lame

ducks, who would not be members of the Board after

December 31, 1971.

“The Board adopted several resolutions. These resolu-

tions recognized the existence of racial segregation in

the Dayton schools, the role played by the Board in

the creation of the racial patterns and the concommitant

responsibility of the Board to eradicate these patterns

through affirmative action. The types of affirmative action

recognized included the elimination of the old attendance

zones and the transportation of students for the purpose

of achieving the city-wide racial balance of students. . . .

“Immediately thereafter, one member of the Board who

had voted with the majority, requested reconsideration

and was improperly ruled out of order. The Board met

subsequently on December 6, 1971 [sic], and January 3,

1972. At the end of the latter meeting, the Board ended

its term of office and the 1972 Board took its place. On

January 3, at its first meeting, the 1972 Board rescinded

the resolutions passed on December 8. Since the 197]

Board had passed out of existence, the action of the 1972

Board on January 3, 1972, was not in the nature of a

reconsideration but instead was a rescission of the pre-

vious action.”

From this finding of fact, the District Judge concluded:

“The right of the majority to override protected minor-

ity rights has clear limitations in our constitutional dem-

ocracy. See Reitman v. Mulkey, 387 U.S. 369 (1967);

Hunter v. Erickson, 393 U.S. 385 (1969); also see Alkire

55a

v. Cashman, —— F.Supp. —— (S.D. Ohio E.D. 1972).

The rescission in early 1972 of the resolutions adopted

by the 1971 School Board constituted an independent

violation of the Equal Protection Clause rights enjoyed

by the black minority of Dayton. See Bradley v. Milli-

ken, 433 F.2d 897 (C.A. 6 1970); Oliver v. Kalamazoo

Board of Education, 346 F.Supp. 766 (W.D. Mich. S.D.

1971), affd. 448 F.2d 635 (C.A. 6 1971).”

The passage of the three resolutions and their subsequent

rescission by a Board of a different composition are factual

matters about which there is no dispute. As hereinbefore

stated, the record amply supports the District Judge’s findings

that racially imbalanced s :hools and optional attendance zones

were elements of the cumulative violation of the appellants’

constitutional rights. Accordingly, when the Dayton Board

at its December 8, 1971, meeting passed resolutions designed,

among other things, to eliminate racial imbalance and optional

attendance zones in Dayton schools, it was acting in a manner

consistent with its constitutional duties. Therefore, the re-

scission by a subsequent Board of these resolutions designed

to carry out the Board’s constitutional duties was an element

of the cumulative violation of the appellants’ constitutional

rights as guaranteed by the Equal Protection Clause of the

Constitution.

The question of whether a rescission of previous Board

action is in and of itself a violation of appellants’ constitu-

tional rights is inextricably bound up with the question of

whether the Board was under a constitutional duty to take

the action which it initially took. Cf. Hunter v. Erickson,

393 U.S. 385 (1960); Gomillion v. Lightfoot, 364 U.S. 339

(1960). If the Board was not under such a duty, then the

rescission of the initial action in and of itself cannot be a con-

stitutional violation. If the Board was under such a duty,

then the rescission becomes a part of the cumulative violation,

and it is not necessary to ascertain whether the rescission

ipso facto is an independent violation of the Constitution.

56a

In view of our conclusion in this case that the rescission

was a part of the cumulative violation of appellants’ constitu-

tional rights, we find it unnecessary to pass on the question

of whether the rescission by itself was a violation of those

rights,

We aftirm the District Court’s holding that racially imbal-

anced schools, optional attendance zones, and the Board's

rescission of the three resolutions are cumulatively in violation

of appellants’ rights guaranteed by the Equal Protection

Clause.

IV. Other Alleged Constitutional . Violations

On appeal, the appellants raise at least four other school

practices which purportedly maintained and expanded the

basically dual school system inherited at the time of Brown.

These practices are in the areas of (A) staff assignment, (B)

school construction, (C) grade structure and reorganization,

and (D) transfers and transportation. The District Judge

did not include any of these practices within his finding of

cumulative violation of the appellants’ constitutional rights.

(A) Staff Assignment

The record reveals that prior to the 1951-52 school year

the Dayton Board basically assigned all black teachers only

to schools with all black pupils and all white teachers to

schools with predominantly white student bodies pursuant to

an explicit segregation policy of the Board. In 1951-52, the

Board introduced a new policy ostensibly to integrate the

faculties, but which effectively continued in practice the

racial assignment of faculty through the 1970-71 school year.

In a letter dated March 17, 1969, the Acting Director of

the Office of Civil Rights of HEW notified the Dayton Board

that “an analysis of the data obtained during the (compliance )

review establishes that your district pursues a policy of racially

motivated assignment of teachers and other professional staff.”

Other relevant portions of this letter are contained in Sec-

tion II of this opinion. Following receipt of the letter, the

Dayton Board negotiated with HEW and agreed to desegre-

gate its staff so “that each school staff throughout the district

will have a racial composition that reflects the total staff of

the district as a whole” in accordance with the principles of

United States v. Montgomery County Board of Education,

395 U.S. 225 (1969). Thereafter, the Dayton Board realigned

its school staffs for the 1970-71 school year.

The appellants admit that progress has been made with

respect to eliminating segregative staff assignment, but allege

that the agreement with HEW has not been fulfilled in that

vestiges of the former practices persist which continue to

identify schools as “black schools” or “white schools.” As an

example, at the high school level, the following table was

presented by the appellants to demonstrate how Board assign-

ment of its professional staff still served to identify schools

as “black schools” or “white schools” in 1971-72 (w means

white, b means black):

Pupil Faculty

% Black % Black Principal Coaches

Belmont 5.2 23.1 w 10w, 2b

Wilbur Wright 9.2 98.5 w _:10w, 3b

Kiser 9.8 20.1 w 10w, 2b

Meadowdale 10.6 23.5 Ww 13w, 3b

Stivers 14.0 32.4 w 10w, 4b

Fairview 24.1 29.8 w 10w, 5b

Col. White ~ 5446 — 32.0 w 9w, 6b

Roth 95.8 43.5 b 9w, 7b

Roosevelt 100.0 47.4 b 8w, 8b

Dunbar 100.0 50.3 b Tw, 9b

The witness Dr. Robert L. Green, Dean of the Urban Col-

lege and Professor of Educational Psychology at Michigan

State University, testified as follows:

58a

“Q. Dr. Green, I believe I informed you that the

faculties were desegregated as a result of HEW action

in 1970.

“Do you have an opinion as to whether or not the

effects of this history of faculty assignment persist in

terms of identification of schools as black or white in

the school district after the changing of the faculties as

was done in this case?

“MR. GREER: Objection, your Honor.

“THE COURT: Overruled.

“A. Yes. The answer is yes, Mr. Lucas. When there

has been historical practice of placing black teachers in

schools specified as being essentially black schools and

white teachers in schools that are identified or specified

as being essentially white schools, even though faculty

desegregation occurs, be it on a voluntary basis or under

court order, the effect remains that school is yet per-

ceived as being a black school or white school, especially

if at this point in time the pupil composition of those

schools are essentially uni-racial or predominantly black

or predominantly white.

“Q. Dr. Green, you did examine the ’68-’69 statistics

for the Dayton School System, is that correct?

“A. Yes.

“Q. And did you in examining the data note any

correlation between the pupil composition of black or

white and the faculty composition black or white?

“A. Yes, I did, Mr. Lucas.

“Q. Do you have an opinion whether this is isolated

instances of correlation or is there any systematic pattern

to it?

“A. There seems to be a systematic pattern as it re-

lates to black teachers and the racial composition of

schools vis-a-vis black youngsters and white youngsters

being essentially placed in schools that are predominantly

white.”

59a

The witness Dr. Foster testified as follows:

“Q. ... In light of that history, could you give us

your opinion as to the effect, first of all, of that policy

before the change, in terms of identification of schools

as black or white and the effects of that change on the

present situation in the Dayton School System?

“MR. GREER: Objection.

“THE COURT: Overruled.

“A. Well, my opinion is that this policy and practice

before the change we assume took place, especially since

it is in a northern district, would indicate that the Board

is missing or has missed a golden opportunity to prove

that it does want to run a unitary system and remove

segregation practices insofar as it is able, because the

Board clearly, as I understand it, under most State laws,

or all State laws, can assign teachers willy-nilly in the

System wherever they want to. This is not a free choice

matter.

“Q. Is it also an annual option that the school Board

has?

“A. Yes, in terms of assignment. In terms of my

opinion on what this does, as recently changed, assuming

this, I would have to say that this does not remove by

any means the vestages of a segregated system since it is

only one component of several important aspects of a

system segregated or desegregated. I think it is a very

important component, and I think it is a step certainly in

the direction of desegregation, and a very positive step.

“But coupled with the other most important step of

pupil assignment, so long as the schools themselves re-

main segregated, as they certainly do at this time in my

opinion in Dayton, then the fact that teachers or staff

being desegregated, if we assume that doesn’t carry near

the weight it would if the total desegregation process

had taken place.”

60a . 6la

Dr. Wayne M. Carle, Superintendent of Schools in Dayton is, the error is still in the direction of the previous dis-

1 he ‘es ok a ik eae ek Sele: crimination. If the staff previously were 70 percent and

“BY MR. LUCAS:

“Q. Would you answer my preliminary question, then.

Did you agree with the HEW conclusion that there was

purposeful faculty and staff segregation in the Dayton

School System?

“MR. GREER: We would object to this, your Honor,

as it simply asks a self-serving conclusion of the witness.

“THE COURT: 1 am going to overrule your objection.

You may answer.

“A. There is no question but what that was so.

BY MR. LUCAS:

“Q. Now, Doctor, I think you stated that there had

been substantial faculty desegregation. Has there also

been staff desegregation and, if you will, limit it to

what you have defined as line personnel, principals, assist-

ant principals?

“A. There has been considerable desegregation of ad-

ministrative staff, but there still is a high correlation

between the race of pupils and the race of the administra-

tor.

° 2 2

“Now, today the percentage of black administrators is

around 32 or 33 percent, as I recall. That indicates less

discrimination in promotion, since there is more relation-

ship between the percentage of teachers, which now is

perhaps 34 or 35 percent, and administrators. But I

am saying that with respect to their assignment, and par-

ticularly at the high school level, there is an almost

perfect correlation between the race of the principal and

the predominating race in the school. All four black

high schools, for example, have black principals. All

the other high schools have white principals. So that

that considerable vestige of segregation still has not been

eliminated. There would be other instances, if you just

scan the statistics, in which previously all black or nearly

black staff similarly have weighted errors in them, thst

now should be, let’s say, 30 percent black, it may still

be 40 percent because of difficult factors in resolving it.

“In all cases, or probably in all cases, that error or that

difference is still weighted to the previously fully segre-

gated pattern, so that it is very difficult I think, to under-

stand the depth of segregation. It is so pervasive that

its vestiges are difficult. These are two areas in which

that is very obvious.”

(B) School Construction

The District Judge did not include the Dayton Board’s

school construction practices within the cumulative violation

because he found the underlying motives behind

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