# Petition — Dayton Board of Education v. Brinkman

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 441 U.S. 903

## Text

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

A.

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.

Woaseias Anadadiabed .: 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:

ee

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.

(C) Rescission of the Board’s Resolutions

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.”

7a

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 such con-

struction to be racially neutral, rendering the following as a
finding of fact:

“(c) Site selection and construction

“(9) Since 1954 the school board of Dayton has con-
structed 14 new elementary schools and 69 elementary
school 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 construction of elementary
schools are 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
reasonable minds might reasonably differ on selection
and construction of some schools, sufficient evidence has
not been presented that school construction was segrega-
tive in nature other than to provide schools in white
neighborhoods which remain predominately white and

schools in black neighborhoods which remain predom-
inately black.

62a

“(10) Five new high schools and fourteen high
school additions have been constructed in the past eigh-
teen years. Construction of some high schools followed
the pattern of construction 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 proportion of whites
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 bur-
den of showing that the defendant Board exercised those
options presented in an improper fashion.”

On appeal, the appellants contend that there is substantial
evidence in the record to support their claim that the Dayton
Board’s practices in school construction had a segregative
effect and contributed substantially to the alleged present
duality in pupil assignment. The record reveals that in the
period of greatest expansion of the Dayton school system,
from the late 1940’s to the mid 1960's, the great majority of
new schools and additions were located by the Board in either
virtually all black or all white areas. Of 24 new schools
constructed between 1950 and the present, 22 opened 90
per cent or more black or white. The following table con-
tains some examples:

% Black % Black

Date of at Pupils

High Schools Opening Opening 1972-1973
Patterson 1954 0.0 32.9
Belmont 1956 0.0 5.2
Meadowdale 1960 0.0 10.6

Dunbar 1962 92.3 100.0

Elementary Schools

Orville Wright 1952 0.0 8.1
Miami Chapel 1953. . 100.0 99.8
Horace Mann 1954 0.0 3.1
Bell Haven 1954 0.0 17.1
Hickorydale 1957 0.0 32.5
Meadowdale Elem. 1957 0.0 12.6
Louise Troy (Primary) 1957 100.0 99.1
Shoup Mill 1958 0.0 3.8
Carlson 1958 95.0 99.0
Jackson Primary 1960 99.9 99.7
McNary Park (Primary) 1964 100.0 100.0
Res. Park (Primary ) 1966 96.5 100.0
Valerie 1966 0.0 24.0

On the issue of school construction practices, Dr. Foster
testified as follows:

“Q. Dr. Foster, would you at this point tell me if you
made an inquiry into the question which I think related
to the construction issues of site selection?

"A. Yes.
“Q. And what was that inquiry?

“A. In terms of the use of site selections to maintain
segregation, in the new construction sites from 1950
which we have already discussed to the present, many
of these have helped to promote and to irapact and lock
in segregated or isolated situations either in the inner
city or in the suburbs, and I think this is true in terms
of both school segregation and housing segregation, that
is, in terms of its effects. First of all, in the area of the
white suburban expansions which are farthest from the
center of the city which is all black, and these were,
of course, more inaccessible at the time of construction
than they are now. We have Valerie which was built in
1966 which is almost at the extreme north of the district.
We have Meadowdale High School built in 1960 and
Meadowdale Elementary built in 1957 to the north of

64a

the district. We have Shoup Mill built in 1958 and to
the nearly extreme north. The south and east of the
furthest white suburban expansion, we have Eastmont,
on the extreme east built in 1965. We have Wilbur
Wright to the northeast built in 1952, Horace Mann to
the southeast built in 1954, and Belmont High School in
the southeast built in 1956.

“Now, contrary-wise, in the inner city during this time
there were a couple of examples of schools which were
built into locked-in situations in terms of segregation, and
in fact these schools were surrounded by other schools
which were all black. That would be McNary in 1964
and Jackson Primary in 1960.

“Q. Dr. Foster, in your experience, use of the primary
unit in close proximity to elementary schools, has this
been a matter reflective of segregation practices in your
experience?

“A. Yes. It is in a sense very much nothing more
than an addition. They are on the same campus and for
all practical purposes they are really one school.

“Q. What effect does this have on the existing racial
concentrations?

“A. Well, it tends to secure it and to further insure
that those schools are going to remain segregated and
that the system as a whole is going to remain segregated.”

Based on this evidence, the appellants dispute the District
Court’s conclusion that the Dayton Board’s school construction
practices were not a part of the cumulative violation. The
appellants contend that on facts similar to those presented in
this case the Supreme Court in Swann, supra, 402 U.S. at
20-21, found major constitutional violations on which a Dis-
trict Court could fashion a remedy.

(C) Grade Structure and Reorganization

The appellants’ primary objection in this area is to the
establishment of a middle school system in the 1971-72 school

65a

year which allegedly had a segregative effect. Dr. Foster
testified as follows:

“My conclusion is that the establishment of the middle
schools in 1971 resulted in the establishment of four out
of five schools that were clearly racially identifiable, there-
fore, increasing or maintaining segregation as opposed to
availing the opportunity of decreasing it.”

Further, after the establishment of the new middle school
structure, the Ohio State Department of Education gave the
following advice to Dayton school authorities:

“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 school children. Along with many other affirmative
duties which the Dayton Board must fulfill, correction
of this particular offense must occur.”

The District Court found that the boundaries established
for the middle schools in September 1971 had “neither segre-
gative nor integrative effect.” The appellants submit that
this finding means, under applicable legal standards, that
the Board acted unconstitutionally to maintain segregation in
the face of an opportunity to accomplish substantial desegre-
gation. The appellants assert that the action of the Dayton
Board was intentional because the Board was aware of de-
segregation alternatives but instead choose a plan whose
predictable impact was not to further integrate the Dayton
school system.

(D) Transfers and Transportation

Finally, the appellants contend that transfer and transporta-
tion practices of the Dayton Board, which might have held
promise to accomplish further desegregation, have operated
to maintain segregation and further earmark schools as “black”

66a

or “white.” In support of this contention, the appellants cite
evidence that curriculum, hardship and disciplinary transfers
have operated frequently to assign white children from “black
schools” to “whiter schools” and black children from “white
schools” to “blacker schools.” Further; there is evidence in
the record revealing that the Board assigned tuition pupils
from outside the district on a dual basis; white pupils were
assigned to white schools and black pupils were assigned to
black schools.

The testimony of John Harewood, Assistant Superintendent
of Dayton schools in charge of administration, reveals two
instances in which children were bused “intact” with the effect
of segregating children on a racial basis in separate class-
rooms within schools. In 1963, white children from Ruskin
School were transported intact to separate classes in the
mixed Central School. In the spring of 1968, some of the
black children from Edison School, which had been partially
destroyed by fire, were similarly segregated within a number
of white schools throughout the city.

The District Court’s only conclusion in the area of transfer
and transportation practices was with regard to the school
system’s Freedom of Enrollment program. The District Court
required that program be revised for Dayton high schools so
that transfers for purpose of improving racial balance take
precedence over curriculum transfers.

On the basis of the evidence adduced, the appellants’ legal
argument in this area is that the transfer and transportation
practices of the Dayton Board had the “clear effect of ear-
marking schools according to their racial composition” which
is proscribed by Keyes v. School District No. 1, Denver, Colo-
rado, 413 U.S. 189, 202 (1973).

(E) Conclusion as to Other Alleged Constitutional
Violations

As hereinabove indicated in Section IV of this opinion, the
appellants have raised serious questions with respect to wheth-

67a

er the District Judge’s failure to include these four school
practices within the cumulative violation was supported by
substantial evidence. In view of our holding in Section V
hereof, we conclude that it is unnecessary at this stage to pass
on whether the District Judge’s findings of fact with respect
to these four school practices is supported by substantial
evidence.

~

V. Remedy

As more fully described in Section I hereof, the District
Court ordered the Dayton Board of Education to submit a
desegregation plan that conformed to all requirements of law.
Subsequently, the four-member majority of the Dayton Board
submitted an eleven point plan characterized by the appellants
as a “free choice plan.” Other plans were submitted to the
District Court by the three-member minority of the Dayton
Board and Dayton Classroom Teachers’ Association. Without
holding a hearing on the remedy issue, the District Court
approved the plan of the Dayton Board majority with one
modification.

The appellants’ primary contention on appeal is that the
desegregation plan approved by the District Court is inade-
quate to remedy the cumulative violation found by the Dis-
trict Court. We agree.

On receipt of the Board majority plan, the District Court
was obliged “to assess the effectiveness of . . . [the] proposed
plan in achieving desegregation . . . . in light of the circum-
stances present and the options available in each instance.”
Green v. County School Board, 391 U.S. 430, 439 (1968).
The appellants assert that the circumstances present here,
namely a cumulative violation, required a remedy of “all-out
desegregation.” Keyes, supra, 413 U.S. at 214. The appellants
further assert that the plan of the Board minority would
accomplish such “all-out desegregation” and that therefore we
should remand this case te the District Court with instructions
that it order the plan of the Board minority implemented.

68a

Today we simply hold that the remedy ordered by the
District Court is inadequate, considering the scope of the
cumulative violations. The case is remanded to the District
Court for proceedings to formulate a desegregation plan for
the Dayton school system consistent with the remedial guide-
lines outlined in Keyes, supra, and Swann, supra. This hold-
ing does not necessarily require the District Court to imple-
ment the plan of the Board minority, but “all vestiges of state-
imposed segregation,” Swann, supra, 402 U.S. at 15, must be
eliminated.

In formulating a desgregation plan, the District Court of
course will adhere also to the guidelines enunciated by the
Supreme Court in Milliken v. Bradley, -— U.S. —— (No. 73-
434, July 26, 1974), reversing Bradley v. Milliken, 484 F. 2d
215 (6th Cir. in banc 1973).

Once the plaintiffs-appellants have shown that state-imposed
segregation existed at the time of Brown (or any point there-
after), school authorities “automatically assume an affirmative
duty . . . to eliminate from the public schools within their
school system ‘all vestiges of state-imposed school segrega-
tion.’” Keyes, supra, 413 U.S. at 200. When such a showing
has been made, “racially neutral” plans which fail to counter-
act the continuing effects of past school segregation are inade-
quate. Id. at 210-13.

VI. Other Directions on Remand

In its Supplemental Order on Remedy, dated July 13, 1973,
the District Court suggested that its disposition of the case
appeared “to require the dismissal of those non-Dayton defen-

dants.” We disagree with this suggestion as to the State
defendants.

The District Court is directed to keep the State defendants
as parties to this action. Although, according to the District
Court order of procedure, evidence as to a state violation was
supposed to be excluded from the initial trial, the follow-

69a

-ing evidence was adduced: The Dayton school district is

chartered by the Ohio State Department of Education, and
without such a charter, the district would be without power
to operate and could not receive state aid. Ohio Revised
Code, §§ 3301.16 and 3317.01. Since an Ohio Attorney Gen-
eral’s opinion dated July 9, 1956, the State Department of
Education has known that it has an affirmative duty under
both Ohio and federal law to take all actions necessary, in-
cluding, but not limited to, the withholding of state and
federal funds, to prevent and eliminate racial segregation in
the public schools. Finally, during the years in question in
this case, the Dayton school district was denied any allocation
of state funds for pupil transportation, although such funds
were made available to most suburban and rural school dis-
tricts in the state.

VII. Other Issues

Several other issues were presented which do not now
require discussion. All contentions of the parties contrary to
the conclusions reached in this opinion have been carefully
considered and are found to be without merit.

VIII. Conclusion

The District Court’s holding of a cumulative violation of the
appellants’ constitutional rights, as contained in its Findings
of Fact and Memorandum Opinion of Law dated February
7, 1973, is affirmed.

Since we conclude that the remedy prescribed by the Dis-
trict Court is inadequate, the case is remanded to the District
Court with directions to revise and supplement its order of
July 13, 1973, entitled “Supplemental Order on Remedy,” so
as to formulate, in accordance with the guidelines hereinabove
set forth, a desegregation plan for the Dayton school system
and for other proceedings to that end not inconsistent with
this opinion.

70a

D. DISTRICT COURTS JANUARY 7, 1975 OR-
DER RELATING TO SUBMISSION OF PLAN.
(Filed January 7, 1975)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MARK BRINKMAN, et al.,

Plaintiffs,
V.
JOHN J. GILLIGAN, Governor
of the State of Ohio, et al.,
Defendants.

ORDER

This matter comes before the Court pursuant to remand by
the United States Court of Appeals for the Sixth Circuit and
following informal conferences called by the Court limited to
one attorney for the plaintiffs and one attorney for the de-
fendants. The Court would be remiss if it did not recognize
the contributions of plaintiffs’ attorney, Louis Lucas, and de-
fendants’ attorney, David Greer, whose research, counsel and
suggestions materially assisted the Court in the preliminary
phase of this matter.

Based upon such conferences, the controlling decisions in
this Circuit, and the state of the law on the subject as an-
nounced by the Supreme Court of the United States, the
Court concludes that it is now appropriate to deal with

7la

specific plans. The parties, including the plaintiffs, the de-
fendant Board of Education of Dayton, and the Board of
Education for the State of Ohio will confer and prepare plans
either jointly or separately for submission to this Court which
will accomplish the following ends and satisfy the requirements
set forth in the opinion of the United States Court of Appeals
for the Sixth Circuit, 503 F.2d 684 (1974).

In the twenty years that have elapsed since Brown v. Board
of Education, 347 U.S. 483 (1954), large numbers of American
cities have faced the problem that now confronts Dayton and
have adopted varying methods to solve it. Able, conscientious,
and knowledgeable experts in this field have developed. De-
partments of government, both state and national, are anxious
to assist. The experience of other cities and the available ex-
perts should be consulted by the parties in the ultimate solution
of this problem. Such devices as “pairing” of schools, “cluster-
ing” of schools, alterations of attendance boundaries, “magnet”
schools, feeder patterns, increasing school capacity, new con-
struction and voluntary transfers, should all be considered.
No known desegregation device should be overlooked. The
proposals of the Board of Education, both those presented in
response to this Court’s Order of February, 1973, and those
suggested in the informal discussions above referred to should
not be abandoned. The thought and planning that preceded
these proposals should not be ignored. These proposals have
not been considered unresponsive; they have been considered
insufficient. They do represent a base for further expansion.

The Court draws particular attention to the proposal of the
Dayton School Board to construct magnet schools in the down-
town area. It may well be that further development of this
concept might achieve the desired goals as to high schools
on a voluntary basis.

The Dayton freedom of enrollment program should not be
abandoned. It, too, may contribute in great measure to a
solution of the problem.

Deliberately absent from the foregoing suggestions is that
of transporting students to accomplish racial balance. It does

72a

not require much wisdom or foresight to recognize that this
coercive solution is the least satisfactory. The Court will con-
sider transportation of students only as a last resort and only
after careful inquiry has established that no other solution
exists.

One word of admonition: This is not a problem that will
disappear by itself. It is concerned with basic constitutional
rights that every public official, including this Court, is sworn
to uphold.

In February of 1973, this Court observed that no peaceful
community could long exist where two separate societies
viewed each other from ever higher walls of suspicion and
distrust. The tragic events of the past three months in the
city of Boston, Massachusetts, have confirmed this observation
with distressing consequences.

With full respect for the Board’s knowledge and ability; with
full recognition of its representative responsibilities; and with
full faith in its dedication and good will, the Court now re-
quests the Board of Education to report upon the months of
study and planning that have been completed as they relate to
a solution of the problem herein.

The Board of Education will submit its plan to the Court on
or before February 1, 1975. A completed plan will be made
available for public inspection on or before January 20, 1975.
Should it appear necessary, hearings on such plan and any
other submitted by interested parties will be held on or before
February 15, 1975.

It is so ORDERED.

/s/ CARL B. RUBIN
United States District Judge

73a

E. DISTRICT COURTS MARCH 10, 1975 ORDER
ADOPTING PLAN OF DAYTON BOARD OF
EDUCATION.

(Filed March 10, 1975)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Civil No. 72-137

MARK BRINKMANN, et al.,

Plaintiffs,
v.
JOHN J. GILLIGAN, Governor
of the State of Ohio, et al.,
Defendants.

ORDER

This matter is before the Court pursuant to remand by the
United States Court of Appeals for the Sixth Circuit. In ac-
cordance therewith this Court on January 7, 1975, directed the
School Board of the City of Dayton to submit a plan of
desegregaiion by February 1, 1975 consistent with such Order
of Remand. Subsequently, plaintiffs also filed a plan and a
hearing on both was held February 17, 19, and 20, 1975.

I. Basis of Court’s Consideration

In order to place this Court’s consideration of any remedial
plan in a proper context certain introductory observations

should be made:

74a

1. All desegregation efforts must be tested initially against
the principle that separate facilities limited to blacks and
whites are forbidden;'

2. Racial balance, i.e., a reflection of the district percentages
in each school is not a Constitutional right equivalent to the
principle above enunciated;?

3. It is not the function of district courts to operate public
school systems, to determine social values, or to engage in re-
structuring of communities, personal attitudes, or sociological
benefits, except as these matters may bear upon Constitutional

rights.*
To the foregoing the court would add the following which

1“In the field of public education the doctrine of ‘separate but equal’
has no place. Separate educational facilities are inherently unequal”;
Brown v. Board of Education, 347 U.S. 483 (1954) (Brown 1).

2 Swann v. Board of Education, 402 U.S. at page 24:

“If we were to read the holding of the District Judge to require as a
matter of substantive Constitutional rights any particular degree of racial
balance or mixing, that approach would be disapproved and we would
be obliged to reverse. The Constitutional command to desegregate
schools does not mean that every school in every community must
always reflect the racial composition of the school system as a whole.

See also: Milliken v. Bradley, U.S. —— (1974), 94 S.Ct. 3112
at p. 3125.

“The failure of an educational agency to attain a balance on the
basis of race, color, or sex or national origin of students among its schools
shall not constitute a denial of equal educational opportunity or equal
protection of laws.” 20 U.S.C. § 1704.

3 “School authorities are traditionally charged with broad power to
formulate and implement educational policy and might well conclude,
for example, that in order to prepare students to live in a pluralistic
society each school should have a prescribed ratio of Negro to white
students reflecting the proportion for the district as a whole. To do this
as an educational policy is within the broad discretionary powers of
school authorities; absent a finding of a Constitutional violation, how-
ever, that would not be within the authority of a federal court.” Swann
v. Board of Education, supra.

75a

may be deemed findings of fact whether implicit in or ex-
plicated by previous opinions of this Court.

1. The State of Ohio does not now, nor has it since 1887
mandated a dual system of public education. To the contrary,
84 Ohio Law 34, dated February 22, 1887, specifically required
a unitary public school system.

2. The defendant School Board of the City of Dayton had
engaged in activities which were segregative in effect and
which did impinge upon the Constitutional rights of st»dents
in such system. At no time, however, did defendant maintain
a dual system of education.

3. Overt evidences of such segregative activities have been
eliminated both by action of the Board of Education and by
previous Order of this Court but the effect thereof may not.

II. Duty of District Courts

With the determination that acts of segregation did occur it
is now necessary to examine the duty imposed upon this Court
under such circumstances. While there is a variation in the
description of such duty, this Court elects to be guided in
this matter by the following: “In fashioning and effectuating
the decrees, the courts will be guided by equitable principles.
Traditionally, equity has been characterized by a practical
flexibility in shaping its remedies and by a facility for adjust-
ing and reconciling public and private needs.” Brown v.
Board of Education, (Bi wn Il), 349 U.S. 294.

There is, however, a final admonition in Swann that bears
careful attention: “As with any equity case, the nature of the
violation determines the scope of the remedy.” Swann v.
Board of Education, supra at p. 16.4

“A subsequent determination by the Supreme Court of the United
States in Lemon v. Kurtzman, 411 U.S. 192 (1973) holds there is broad
discretionary power granted to trial courts in shaping equity decrees.
Lemon, it should be pointed out, is not a school desegregation case.

76a

Two events that bear upon the scope of appropriate remedy
have occurred since August 20, 1974, the date of the appellate
holding in this case. These events may well have changed
both “the nature of the violation” and the “scope of the
remedy.” They require further discussion.

First: Effective October 20, 1974, the Congress of the
United States adopted the Equal Educational Opportunities
Act, 20 U.S.C. § 1701 et seq.5

Section 1701 declares it to be the policy of the United States
that:

“1. All children enrolled in public schools are entitled to
equal educational opportunity without regard to race, color,
sex, or national origin; and

2. The neighborhood is the appropriate basis for determin-
ing public school assignment.”

Section 1712 imposes a limitation upon courts in the fol-
lowing language: “In formulating a remedy for a denial of
equal educational opportunity or a denial of equal protection
of the laws, a court . . . shall seek or impose only such remedies
as are essential to correct particular denials of equal educational
opportunity or equal protection of the laws. [Emphasis added]

In § 1713 is listed a priority of remedies and in § 1714 there
is a specific limitation which holds: “No court... shall pur-
suant to § 1713 of this Title order the implementation of a
plan that would require the transportation of any student to
a school other than the school closest or next closest to his
place of residence which provides the appropriate grade level
and type of education for such students.”

Second: On December 6, 1974, the United States Court of
Appeals for the Sixth Circuit decided George and Carolyn
Higgins v. Board of Education of the City of Grand Rapids,
(No. 73-2189), —— F.2d —— (1974). The Court in Higgins

5 The effective date of the above act is said to be, “On and after the
sixtieth day after August 21, 1974.”

77a

tollowed Deal v. City of Cincinnati Board of Education, 369
F.2d 55, cert. denied 389 U.S. 847, in these words: “Deal
[upheld] the constitutionality of retaining neighborhood
schools where racial imbalance has not been caused by any
discrimination on the part of school officials.”

If the nature of the violation determines the scope of the
remedy, it becomes critical to determine whether or not there is
an unremedied district-wide segregative act. This Court found
in its Order of July 13, that specific segregative acts, since
eliminated; the existence of optional attendance zones, now
eliminated; and conditions of racially imbalanced schools to-
gether required action by the federal courts.

We do not deal with a mandated dual school system; we do
not deal with actions taken on a school-by-school basis.”
We do deal with a system that has in the past permitted
segregative practices to exist. The issue, therefore, is whether
a plan iuitended to improve the educational opportunities for
all students without a school-by-school restructuring basis is
appropriate. ‘This Court holds at this time that it is.

III. Plaintiffs’ Plan

The plaintiffs have urged upon this Court a plan which
will assign students among the Dayton schools in a black/white

6 Higgins mentions Brinkman vy. Gilligan on page 19. This Court
respectfully suggests that the following sentence contained therein:
“These three findings were held in their cumulative effect to be enough
to reflect de jure segregation.”, requires for full significance an exam-
ination of the specific holding of the court. See footnote 7 infra.

7 The only district-wide action of the defendants involved the rescis-
sion of resolutions in January of 1970. The United States Court of
Appeals dealt with the issue as follows:

“We hold that the findings of fact upon which the District Court based
its conclusion of accumulative violations are not clearly erroneous but to
the contrary are amply supported by the evidence. Fed. R. Civ. P.
52A. 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. Brinkman v.
Gilligan, 503 F.2d 684 at 693.

78a

ratio approximating the district-wide ratio for such schools
with a variation of 15%, plus or minus, from the mean.® To
accomplish this, the plaintiffs would create “clusters” of ele-
mentary schools, additional middle schools, and redistricted
high schools. The term “cluster” is taken to mean a group of
schools, usually more than two, within a common attendance
district to which students will be sent irrespective of proximity
to their place . f residence.? Plaintiffs’ plan is a comprehensive
one; it was carefully prepared and well-presented. It will
do what the plaintiffs urge must be done. It is not intended
to, nor will it, in and of itself, provide alternate educational
programs or seek innovative learning experiences. In the
plaintiffs’ view, these are obligations of any school board irre-
spective of the integration or segregation of the schools. Since
this question is not before the Court, it will not be ruled upon.

In the Order of Remand by the United States Court of
Appeals for the Sixth Circuit, the following appears:

“In formulating a desegregation plan, the District Court, of
course, will adhere also to the guidelines enunciated by the
Supreme Court in Milliken v. Bradley, -— U.S. ——, 94 S.Ct.
3112 (1974).”

The majority opinion by Chief Justice Burger includes the
following: “Viewing the record as a whole, it seems clear that
the District Court and the Court of Appeals shifted the pri-
mary focus from a Detroit remedy to the metropolitan area
only because of their conclusion that total desegregation of
Detroit would not produce the racial balance which they per-
ceived as desirable. Both courts proceeded on an assumption
that the Detroit schools could not be truly desegregated — in

8 According to the testimony the appropriate percentages of Black
students for the year 1974-1975 are:

Elementary Schools 44.2%
Middle Schools 68.7%
High Schools 45.5%

9 Portions of the record dealing with this transportation are included
herein as Appendix A.

79a

their view of what constituted desegregation — unless the
racial composition of the student body of each school sub-
stantially reflected the racial composition of the population of
the metropolitan area as a whole... . In Swann which arose
in the context of a single independent school district the Court
held, ‘If we were to read the holding of the District Court to
require as a matter of substantive Constitutional rights any
particular degree of racial balance or mixing, that approach
would be disapproved and we would be obliged to reverse;
402 U.S. at 24.

The clear import of this language from Swann is that de-
segregation in the sense of dismanteling a dal school system
does not require any particular racial balance in ‘each school,
grade or classroom.” 94 S.Ct. at 3125.

It would seem, therefore, that whether the area in question
is a single school district as in Swann or in multi-school districts
as in Milliken, the obligation does not exist to create racial bal-
ance which is in essence the sole function of the plaintiffs’ plan.

Accordingly, this Court holds that a comprehensive plan,
such as plaintiffs suggest, is not required at this time. We
hold also that plaintiffs’ plan as presented is violative of the
Equal Educational Opportunities Act, 20 U.S.C. § 1701, et
seq., and particularly §§ 1713 and 1714.

IV. The Defendant’s Plan

The defendant’s plan was presented to the Ccurt in a 17 page
memorandum with a 26 page exhibit of tables and statistics
and a 69 page appendix. It also contains much extraneous
material. Only the “magnet” program and the “learning cen-
ters” concept require comment.

A magnet high school'® with programs not offered at home

high schools and “satellite” magnet programs intended to
attract students from their high schools and districts of resi-

10 The term “magnet high school” is deemed to mean a school open
to all students with programs sufficiently attractive that students will
elect to attend. The Stivers-Patterson vocational complex is one exam-
ple of a magnet school.

80a

dence is proposed. If successful, the magnet program will
provide an opportunity to students, both black and white, to
obtain additional educational advantages equally attractive to
both. Magnet schools are an acceptable desegregation device.
20 U.S.C. § 1713(f).

The magnet’s schools are supplemented by “learning cen-
ters” for foreign languages and business education for 6th, 7th,
and 8th grades; career motivation for 4th and 5th grades;
science for 5th, 6th, 7th and 8th grades; and a science en-
vironmental center for the 6th grade.

Learning centers to which students are transpor*ed are inte-
grative in concept. Plaintiffs assert that such transportation is
also violative of 20 U.S.C. §§ 1713 and 1714 since it would
require bussing of students to schools other than the school
closest or next closest to his or her place of residence. We
leave this argument for another day and another court. We
hold only that the plan comports with the Congressional de-
claration of policy set forth in 20 U.S.C. § 1701.

The overall plan is desegrative in intent; it is not violative of
Brown v. Board of Education, supra, and it does not appear to
violate the mandate of the United States Court of Appeals for
the Sixth Circuit so long as the following limitations are
observed:

1. All programs including the magnet schools and the
learning centers must be so located that the burden of
transportation is substantially equal upon both black
and white students;

2. The composition of all classes must be no less than the
mean for the appropriate schools plus or minus 15%;"'

3. The faculty assigned to all programs must reflect the
racial percentages of faculty within the system as a
whole;

11 See Footnote 9.

8la

4. The amount of time of student assignment to classes
in learning centers shall not be less than 20% of such
student’s total instructional time.

It is entirely possible that the proposed program will not
attract an appropriate number of black and white students and
might instead further segregate the Dayton school system.
Because it is innovative, because it offers the opportunity for
alternative quality education, and because it has been proposed
by a board of popularly elected officials, the Plan should be
given a fair trial. The Board’s plan will be accepted provision-
ally for the school year 1975 — 1976. The provisional accep-
tance requires this Court once more to continue jurisdiction of
this matter.

There is an omission in the comprehensive plan submitted
by the defendants. It is not possible to determine whether
the numerous desegregative techniques set forth in this Court’s
Order of January 7, 1975, have been fully investigated. It is not
known, for example, whether adjustments of existing school
attendance zones would reduce concentrations of black and
white attendance. It is not known whether feasible pairing or
clustering of schools could be accomplished without bussing
violative of the Equal Educational Opportunities Act.

Accordingly, the defendants are directed to conduct such a
study and to report to this Court on or before October 1, 1975,
of the results thereof on a school-by-school basis. Further hear-
ings will thereupon be held and an alternative plan consistent
with the Equal Educational Opportunities Act will be estab-
lished on or before January 1, 1976.

In the event defendants are unable by the methods approved
in July of 1973 and those approved by this Order to accomplish
what this Court deems to be adequate progress in complying
with the Equal Educational Opportunities Act and the man-
date of the United States Court of Appeals for the Sixth Circuit,
such alternative plan will become effective for the school year
beginning in September, 1976, and for all school years
thereafter.

82a

V. The Dayton School Board

The willingness of this Court to accept defendant's plan at
this time is dictated in part by the attitude of the School Board
in the City of Dayton. This Court has not been faced with the
problems of Tudge James B. McMillan who dealt with a re-
calcitrant school board in Swann v. Charlotte Mecklenburg
Board of Education, supra, nor with those of Judge W. Arthur
Garrity, Jr., who has dealt with a contumacious school board in
Boston. Any reasonable plan submitted by a board which has
demonstrated good faith is entitled in the first instance to care-
ful consideration by a court and in cases of doubt to have
such doubt resolved in its favor. Good faith is a two-way
street.

VI. Progress of the Case

The pace at which desegregation cases proceed through the
courts has been a source of concern by courts and a source of
‘ frustration for litigants.'2 It has frequently been observed
that over 21 years has elapsed since Brown v. Board of Educa-
tion, supra, and the problem appears far from solved. It can
even be asserted that the magnitude of the problem has in
fact increased in that time. To postpone yet again the ultimate
determination of this matter may appear to the plaintiffs to be
a further delay of their rights. A chronology of the significant

12 The complexities of school desegregation have resulted in the fol-
lowing instances of prolonged litigation:

a. Guoss v. Board of Education of the City of Knoxville, Tennessee,
original District Court opinion, 186 F.Supp. 559 (1960), recent opinion
of United States Court of Appeals for the Sixth Circuit, 444 F.2d 632
(1971);

b. Kelly v. Board of Education of the City of Nashville (subsequently
Metropolitan County Board of Education of Nashville), original District
Court opinion, 139 F.Supp. 578 (1956), recent opinion of the United
States Court of Appeals for the Sixth Circuit, 463 F.2d 732 (1972).

c. “These appeals represent another installment of an already lengthy
serial: ‘The desegregation of the Memphis Public School System’. The
initial chapter of this story was written in 1960 . . .” Northcross v. Board
of Education of Memphis City Schools, 466 F.2d 890 (1972).

83a

dates in this proceeding might held to place the matter in its
proper context.

This case was filed in May of 1972. It was heard on the
merits in November of 1972.

A Findings of Fact and Memorandum Opinion of Law was
filed in February of 1973. An Order imposing integrative
remedies upon defendants was filed in July of 1973. During
the school year 1973 — 1974 and 1974 — 1975 these remedies
were in effect.

The Order of Remand by the United States Court of Appeals
for the Sixth Circuit became effective in October of 1974. The

Order herein will at the minimum be effective for the school
year 1975 — 1976.

While this is hardly a model of speed and dispatch, it is con-
sistent with the magnitude of the problem that must be solved.

In the mass of rhetoric, emotional outbursts, and demo-
goguery that have attended the progression of many school de-
segregation cases, a few voices have been heard to suggest a
rule of moderation. One such by Senior Judge Clifford O’Sul-
livan of the United States Court of Appeals for the Sixth
Circuit bears repetition:

“The hope or dream that one day we will have become
a people without any motivation borne of our differing
racial beginnings will have a better chance of fulfillment
if patience accompanies our endeavors. Strident and
truculent judicial commands could indeed exacerbate
what now remains of racial bias and prejudice.”
Goss v. Board of Education of the City of Knoxville, Ten-
nessee, 444 F.2d 632 at 640.

VII. Conclusion
In view of the foregoing, the Court holds as follows:

1. The plan of the defendants as modified herein wiil have
an integrative effect upon the Dayton school system and is
provisionally adopted for the school year 1975 — 1976.

84a

2. The plan of the plaintiffs is violative of The Equal
Educational Opportunities Act, 20 U.S.C. § 1701, et seq., and
imposes a burden upon the defendant school board beyond
that which it is presently required to bear.

3. The state of the law in desegregation cases, the Order of
Remand in this case, and the Congressional intent in the Equal
Educational Opportunities Act, supra, do not require the adop-
tion of a mathematical ratio plan wherein each school, grade
or classroom of the district shall contain any particular balance
of black and white students representative of the district as a
whole.

4. Where the previous actions of a school board indicate
only a difference of opinion on a subject concerning which
reasonable minds may reasonably differ, bad faith will not be
presumed and a proposal, although novel and untried, will
be given an opportunity for success.

5. In view of the developments, subsequent to August 20,
1974, the Court is of the opinion that holdings herein re-
garding the Equal Educational Opportunities Act involve a
controlling question of law as to which there is substantial
grounds for difference of opinion and an immediate appeal
from this Order may materially advance the ultimate termina-
tion of the litigation. Accordingly, the Court does so certify in
accordance with 28 U.S.C. § 1292(4)(b). An application for
appeal in accordance with this determination shall not stay the
proceedings in this Court.

It is so ORDERED.

/s/ CARL B. RUBIN
United States District Judge

85a

APPENDIX A TO MARCH 10, 1975
ORDER

. . . after this matter was raised during the Louisville argument
in the Sixth Circuit, and the Court’s inquiry was whether or
not the Act of Congress could overcome the constitutional
provisions which were being enforced by the courts, and I
think I had related that to the witness. I am not sure, but I
was present when the Sixth Circuit asked that question, and
that conformed with my earlier reading of the Broomfield
Amendments which had a similar purpose but, however, had
the same saving clause about the power of the courts is not
impaired where necessary to remedy a constitution violation.

THE COURT: Well, we are not going to debate the consti-
tutionality of an Act of Congress. I am concerned with the
presentation of a plan where it is somewhat peripheral as to the
consideration of this Act.

Mr. Greer, you may continue.

CONTINUATION OF CROSS EXAMINATION
BY MR. GREER:

Q. Yesterday, Doctor Foster, we discussed the schools that
were left unaffected by your pairing and clustering at the
elementary level, and the two examples of the contiguous
pairing in your plan. Let’s move on to the other nine clusters
that comprise your elementary school plan. Each of those nine
clusters involve a substantial amount of required bussing of
school children to schools beyond those that are closest or next
closest to their place of residence; isn’t that correct?

A. I believe that is correct, yes.

Q. Let’s look, for example, at cluster F of your group. A
child in the Lewton school district which is in the eastern part
of Dayton is required to spend grades 4 and 5 in Edison school
which is on the west side of Dayton; is that not right?

A. That's right.

86a

Q. And am I not also correct that the following schools are
closer to the Lewton district: Eastmont, Grant which you are
converting to a middle school —

A. Would you hold that just a minute so I can make a
note of those?

Q. Sure.

A. Allright. Between Lewton and Edison you are speaking
of?

Q. That’s correct.

A. And what are the schools again?

Well, let me just list them off It would be Eastmont,
Kemp, Washington which in your original plan you were going
to close, Franklin, Cleveland, Belmont, Horace Mann and
then another school that you are planning to turn into a middle
school which is Ruskin, Huffman, Webster, Emerson, Patter-
son, McGuffey, Hawthorne which is your original plan was
going to be closed, Irving and Whittier.

A. Well, if you are talking about a direct line between
the two schools, you couldn’t possibly get all those schools in
between the two you are speaking of.

Q. My question wasn’t phrased in terms of the way the
crow flies. It is whatever schools are closer to the residence of
a child living in the Lewton district, and all of those schools
would be closer to that child’s residence; isn’t that true?

A. You mean as the crow flies?

Q. Let’s get a lame crow and say going in any direction.
Let’s make an arc just so we know the distance of what is closer
to a child living in the Lewton district.

A. It would say it generally might be true, but to say it was
true, I would want to go to the map.

THE COURT: Why don’t you do that, Doctor

THE WITNESS: How many schools did you name alto-
gether?

BY MR. GREER:

Q. Eighteen different schools.
A. All right.

87a

Q. And the same type of situation, of course, would be true
in that cluster with respect to students living in the Edison
district who would be going over to the east end of Dayton in
grades 1 through 3; isn’t that true?

A. Yes.

Q. If we turn to cluster C, a child in the first or second
grade at Eastmont would be required to be bussed beyond
some seventeen or eighteen closer schools in order to attend
classes at Highview; isn’t that correct?

A. Yes.

Q. And vice versa the same kind of situation would be true
for a child living in the Highview district during grades
3 to 5P

A. Yes.

Q. If we look on cluster I, the required bussing between
Gardendale and Shiloh passes by ten school zones which are
closer to the residences of the children in those two affected
school districts; isn’t that right?

A. Without counting them, I would believe that is probably
accurate, yes.

Q. And without going through the tedium of each of these
clusters, isn’t it true that the same kind of cross-town required
bussing affects students in 24 out of the 28 school zones that
are paired or grouped in clusters under your proposal?

A. Again without counting, I would believe that would
probably be accurate, yes.

Q. And you have before you the statistics, of course, as
to the number of children enrolled in these various schools,
don’t youP

A. Yes.

Q. Am I not correct in each year something in the area of
9,000 students under your plan would be bussed beyond the
second closest school to their place of residence?

A. Pardon me just a second.

Well. I don’t get quite that many. At a quick count, I get
something like 7,000.

88a

Does that comprise all of the students in these 24 out of
28 school Zones?

A. It would comprise the students in the clusters that you
referred to, and our count should be the same because my
counts were the same as your staff person that testified about
students being bussed in the clusters.

Q. Right. What you just computed for me has been the
nine out of the eleven clusters that we started talking about
today?

A. That’s correct.

89a

F. COURT OF APPEALS’ JUNE 24, 1975
OPINION.

(Filed June 24, 1975)

No. 75-1410

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

MarK BRINKMAN, ET AL.,

Plaintiffs-Appellants,| APPEAL from the
United States District
' Court for the South-
Joun J. GILLIGAN, ET AL., ern District of Ohio.

Defendants-Appellees.

Vv.

Before: Pumuirs, Chief Judge, and Peck and MILLER, Circuit
Judges.

Prutuips, Chief Judge. For a second time this court is called
upon to review the constitutionality of a plan ordered by the
District Court for the school system of Dayton, Ohio, to remedy
cumulative constitutional violations found to exist in that school
system. Reference is made to the previous decision of this
court, reported at 503 F.2d 684 (6th Cir. 1974), for a de-
tailed recitation of facts and issues.

By a statute enacted February 22, 1887, the State of Ohio
abolished separate schools for white and Negro children.
Nevertheless, the District Court found that the Dayton school
system has failed in many particulars to meet the standards of
Ohio law mandating an integrated school system and to com-
ply with the equal protection clause of the fourteenth amend-
ment. Segregative acts and practices were found to have
occurred both before and after the decision of the Supreme

90a

Court in Brown v. Board of Education, 347 U.S. 483 (1954),
and to have continued down to the present time. These find-
ings of fact as to segregative practices in Dayton are set forth
in detail in our former opinion and will not be repeated here.
Suffice it to say that in our former opinion this court ruled
that the findings of fact of the District Court as to uncon-
stitutional practices on the part of Dayton School officials are
not clearly erroneous, but to the contrary are supported bv
substantial evidence.

Although the phrase “de jure” does not appear in our former
opinion, the meaning of that decision is that the Dayton
school system has been and is guilty of de jure segregation
practices. See Keyes v. School District No. 1, 413 U.S. 189
(1973).

We agreed with the District Court as to his findings of fact
in our former opinion, but held the remedy ordered by that
court to be inadequate, considering the scope of the consti-
tutional violations. We remanded the case to the District
Court with directions to formulate a desegregation plan for
the Dayton school system consistent with the remedial guide-
lines outlined in Keyes, supra, and in Swann v. Charlotte-
Mecklenburg Board of Education, 402 U.S. 1 (1971).

In our former opinion we said: .

Once the plaintiffs-appellants have shown that state-
imposed segregtation existed at the time of Brown (or any
point thereafter), school authorities “automatically as-
sume an affirmative duty .. . to eliminate from the pub-
lic schools within their school system ‘all vestiges of state-
imposed school segregation.” Keyes, supra, 413 U.S. at
200, 93 S.Ct. at 2693. When such a showing has been
made, “racially neutral” plans which fail to counteract
the continuing effects of past school segregation are in-
adequate. Id. at 210-213, 93 S.Ct. 2686. 503 F.2d at 704.

On remand the District Court required the plaintiffs and
the Board of Education to submit plans. The plaintiffs’ plan

9la

was rejected. The Board’s plan was adopted for the school
year 1975-76 with minor modifications.

The present appeal is from the decision of the District
Court implementing the Board’s plan. The question on ap-
peal is whether the Board’s plan conforms to the mandate of
this court in our decision reported at 503 F.2d 684. We
hold that it does not.

The plan approved by the District Court contains some
provisions which apparently might effect some improvements
in the segregated conditions found to exist in this school sys-
tem. Some of its key features are as follows:

1. The closing of Roosevelt High School, with its 100 per
cent black enrollment. The students previously enrolled at
Roosevelt High would be permitted to attend any high school
of their choice.

2. Creation of a downtown magnet high school at the
Central YMCA, with programs not offered at home high
schools, to serve a maximum of 300 students at any one time,
and satellite magnet programs intended to attract students
from their high schools and districts of residence, which could
serve not more than 375 students at any one time. The Dis-
trict Court said: “If successful, the magnet program will pro-
vide an opportunity to students, both black and white, to
obtain additional educational advantages equally attractive to
both.” The students would remain in their assigned schools
for all other instruction.

3. Creation of three magnet learning centers at which ele-
mentary students could participate in foreign language, career
motivation, and business education programs. The three cen-
ters together would serve about 880 students, who would re-
main in their assigned schools for other instruction.

4. Expansion of science centers to accommodate additional
elementary students. The centers would have a racially bal-
anced enrollment, and attendance would be mandatory, but
only ten percent of the student’s total instruction time would
be spent at the centers.

92a

5. A new vocational school for high school students, known
as Kiser Career Center, would be established. This school
would have a balanced racial composition, serving 210 stu-
dents on a free-choice basis.

6. Restructuring of Miami Chapel elementary school into
an alternative elementary school with enrollment optional
and on a full-time basis. Miami Chapel has a capacity of
over 700 students, but the Board anticipates that the school
as restructured will serve approximately 500 students. Miami
Chapel presently is an all-black school serving 380 students,
and there is some indication in the record that these students,
if not admitted to the restructured school, will be assigned
to the all-black Louise Troy or Wogaman schools.

7. Creation of a magnet alternative school for 150 inter-
mediate grade level students in an attempt to keep potential
drop-outs in school, without regard to race.

8. The freedom of enrollment and open enrollment pro-
grams put into effect earlier by the Board would be continued.

In approving this plan, the District Court added the follow-
ing provisions:

1. All programs including the magnet schools and the

learning centers must be so located that the burden

of transportation is substantially equal upon both
black and white students;

2. The composition of all classes must be no less than
the mean for the appropriate schools plus or minus
15%;

3. The faculty assigned to all programs must reffect
the racial percentages of faculty within the system
as a whole;

4. The amount of time of students assignment to classes
in learning centers shall not be less than 20% of such
student’s total instructional time.

This is essentially all the relief afforded by the District Court

93a

for the 1975-76 school year. The court expressed uncertainty
as to whether the plan would be completely effective and
ordered the Board to develop and file a more comprehensive
plan by January 1, 1976. The court stated that if the 1975-76
plan should prove to be ineffective, an alternate plan would
ol a for the school year beginning in September

The District Court described the approved plan as “deseg-
regative in intent” and concluded that it would have “an
integrative effect.” It appears that the plan contains some
significant curricular innovations and that it would be a step
toward integration of the Dayton school system. We believe
however, that more is required by the Constitution, by recent
decisions of the Supreme Court, including those herein cited
and by the previous mandate of this court. As the appellants
point out, under the plan approved by the District Court the
basic pattern of one-race schools will continue largely un-
abated. The plan does not even purport to dismantle Day-
ton’s one-race schools other than Miami Chapel and Roose-
velt High School, and even if the magnet plans are
successful, the vast majority of one-race schools will remain
identifiable as such. The District Court’s plan fails to eliminate

the continuing effects of past segregation and is, therefore
inadequate.

In the course of his opinion, the District Judge noted two
events which have occurred since our first opinion in this
case, both of which he thought supported the harrow remedy
he ordered on remand.

The District Court said:

First: Effective October 20, 1974, the Con

, 4 ; gress of the
United States adopted the Equal Educational Opportuni-
ties Act, 20 U.S.C. § 1701 et seq.

Section 1701 declares it to be th lic: ;
States that: e policy of the United

“1. All children enrolled in public schools are entitled

94a

to equal educational opportunity without regard to race,
color, sex, or national origin; and

2. The neighborhood is the appropriate basis for de-
termining public school assignment.”

Section 1712 imposes a limitation upon courts in the
following language: “In formulating a remedy for a de-
nial of equal educational opportunity or a denial of equal
protection of the laws, a court . . . shall seek or impose
only such remedies as are essential to correct particular
denials of equal educational opportunity or equal pro-
tection of the laws. [Emphasis added]

In § 1713 is listed a priority of remedies and in § 1714
there is a specific limitation which holds: “No court
... Shall pursuant to § 1713 of this Title order the imple-
mentation of a plan that would require the transporta-
tion of any student to a school other than the school
closest or next closest to his place of residence which
provides the appropriate grade level and type of educa-
tion for such students.”

Second: On December 6, 1974, the United States
Court of Appeals for the Sixth Circuit decided George
and Carolyn Higgins v. Board of Education of the City
of Grand Rapids, (No. 73-2189), 508 F.2d 779 (1974).
The Court in Higgins followed Deal v. City of Cincinnati
Board of Education, 369 F.2d 55, cert. denied 389 U.S.
847, in these words: “Deal [upheld] the constitutionality
of retaining neighborhood schools where racial imbal-
ance has not been caused by any discrimination on the
part of school officials.Ӣ

6 Higgins mentions Brinkman v. Gilligan on page 19. This
Court respectfully suggests that the following sentence con-
tained therein: “These three findings were held in their cumula-
tive effect to be enough to reflect de jure segregation.”, requires
for full significance an examination of the specific holding of the
court.

The Equal Educational Opportunity Act of 1974 by its terms
does not prevent the District Court from carrying into effect

%

95a

the previous mandate of this court. 20 U.S.C. § 1702(b)
expressly provides:

(b) For the foregoing reasons, it is necessary and
proper that the Congress, pursuant to the powers granted
to it by the Constitution of the United States, specify
appropriate remedies for the elimination of the vestiges
of dual school systems, except that the provisions of this
chapter are not intended to modify or diminish the au-
thority of the courts of the United States to enforce fully
the fifth and fourteenth amendments to the Constitution
of the United States. (Emphasis supplied. )

We construe the 1974 Act, read as a whole, as not limiting
either the nature or the scope of the remedy for constitutional
violations in the instant case.

There could be no possible merit in the contention that
the opinion of this court in Higgins, relating to the school
system of Grand Rapids, Michigan, altered in any way the
nature of the cumulative violations described in our former
opinion in the present case or the scope of the constitutional
remedy required by this court on the remand which we di-
rected in that opinion. The law in the present case is em-
bodied in the opinion of this court reported at 503 F.2d 684.
Our previous opinion is not changed in any way by Higgins,
which dealt with a different school system and a distinguish-
able factual situation.

Appellants have petitioned for summary reversal. Except
for the time factor, we would be inclined to grant this relief.
However, it obviously would be difficult if not impossible,
in the limited time now available, for the District Court to
formulate a comprehensive plan for the 1975-76 school term
and to put it into effect in September 1975 without disruption
of the large school system in the Dayton school district.

Instead of summary reversal, we remand this case to the
District Court with directions to modify the plan previously
approved for the 1975-76 school year so as to improve the racial

96a

balance before September 1, 1975, in as many of the remain-
ing racially identifiable schools in the Dayton system as
feasible.

We further direct that black students who attended the
Miami Chapel elementary school during the 1974-75 school
year, and who are not assigned to the restructured Miami
Chapel school, be assigned to other than all-black schools
during the 1975-76 school year.

The District Court already has expressed an intention to
adopt a revised and improved plan for the school year 1976-77.
On remand we direct that the court adopt a system-wide plan
for the 1976-77 school year that will conform to the previous
mandate of this court and to the decisions of the Supreme
Court in Keys and Swann. We direct that this plan be
adopted not later than December 31, 1975, so that it may be
placed in effect at the beginning of the new school year in
September 1976.

This case is remanded to the District Court for further
proceedings consistent with this opinion.

The mandate of this court on the present appeal will issue
forthwith. The costs of this appeal are taxed against the
Dayton Board of Education.

97a
G. COURT OF APPEALS’ JUNE 24, 1975 RE-
MAND JUDGMENT.
(Filed June 24, 1975)

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 75-1410
MARK BRINKMAN, ET AL..,
Plaintiffs-Appellants,
Vv.
JOHN J. GILLIGAN, ET AL..,

Defendants-Appellees.

Before: Puiturs, Chief Judge, and Peck and MILuer,
Circuit Judges.

JUDGMENT

AppkEAL from the United States District Court for the South-
ern District of Ohio.

THIS CAUSE came on to be heard on the record from the
United States District Court for the Southern District of Ohio
and was argued by counsel.

On ConsIDERATION Wuenreor, It is now here ordered and
adjudged by this Court that the judgment of the said District
Court in this cause be and the same is hereby remanded for
further proceedings.

It is further ordered that Plaintiffs-Appellants recover from

98a ; 99a

the Dayton Board of Education the costs on appeal, as itemized H. DISTRICT COURTS DECEMBER 29, 1975
below, and that execution therefore issue out of said District ORDER.

Court if necessary. (Filed December 29, 1975)

ENTERED BY ORDER OF THE COURT
IN THE UNITED STATES DISTRICT COURT

John P. Hehman, Clerk FOR THE SOUTHERN DISTRICT OF OHIO
By /s/ GRACE KELLER WESTERN DIVISION
Grace Keller

Chief Deputy

Civi! No. C-3-75-304
Issued as Mandate: June 24, 1975 ee

COSTS: Amount to be determined later MARK BRINKMAN, et al.,
PC EE auanncnnncsmud S Plaintiffs,
Printing $ v.
Total $ JOHN J. GILLIGAN, et al.,
Defendants.
A True Copy. scitinicaaiaelia
Attest: ORDER
John P. Hehman, Clerk This matter is before the Court pursuant to Order of Re-
By /s/ GRACE KELLER mand by the United States Court of Appeals for the Sixth
Chief Deputy Circuit expressed in the following terms:

We direct that the Court adopt a system-wide plan for
the 1976-1977 school year that will conform to the pre-
vious mandate of this Court and the decisions of the
Supreme Court in Keyes and Swann.'

Pursuant to such remand, defendant Dayton Board of Edu-
cation and plaintiff NAACP presented plans to the Court.
Testimony and evidence in support thereof was presented on
December 8-9, 1975. A third plan based upon findings by
the late Dr. Charles A. Glatt, Court-appointed expert, was
presented by a group known as “Friends of Dr. Glatt” although
no evidence or testimony accompanied such plan. The Court
notes in passing the significant contribution of Dr. Glatt to
this most complex problem.

' Brinkman v. Gilligan, 518 F.2d 853 at 857.

100a

A determination of this matter and its future progress will
be considered under the following headings:

I. Standards of Examination
II. Master
III. Community Participation

IV. Conclusions of Law

I.
STANDARDS OF EXAMINATION

Given the predicate that the limited segregatory activities
found by this Court in its Order of February 7, 1973, brings
this matter within the ambit of Swann? and Keyes,’ the reme-
dy must be obvious. This Court now reaches the reluctant
conclusion that there exists no feasible method of complying
with the mandate of the United States Court of Appeals for
the Sixth Circuit without the transportation of a substantial
number of students in the Dayton school system. Based upon
the plans of both the plaintiff and defendant the assumption
must be that the transportation of approximately 15,000 stu-
dents on a regular and permanent basis will be required. No
contrary remedial suggestion has been offered by any person
or group. No authority has been found or cited that would
justify any other disposition.

An analysis of the two plans submitted discloses more a
difference of technique than a difference of result. In essence,
the plaintiffs would pair and cluster existing elementary schools
in a fashion to insure a racial balance approximating that of
the school district as a whole with existing attendance zones
of such schools remaining approximately intact. The existing

2 Swann v. Charlotte Mecklenburg Board of Education, 402 U.S. 1
(1973).

3 Keyes v. School District No, 1, 413 U.S. 189 (1973). .

10la

elementary schools would provide feeder patterns for the
appropriate high schools. Under plaintiff's plan almost every
student would at some time be transported to and from
school.

Defendants’ plan is based upon a series of choices to be
made by parents which will provide educational alternatives.‘
Defendants have agreed that there is nothing inherent in their
plan to prevent racial balancing appropriate to the district
as a whole and it is in this context that such plan has been
considered.

It would be foolish indeed to ignore the rhetoric that has
accompanied twenty years of the school desegregation prob-
lem. The catch phrases, “forced busing,” “quality education,”
“racial balance,” and “white flight,” have served as a form
of shorthand mainly to obscure rather than to clarify the
nature of the problem involved.

This Court’s position and determination can best be under-
stood by a reference to personal judicial philosophy as it bears
upon the overall subject of educational racial discrimination.

I believe that it is not the function of the United States
District Court to oversee the methods whereby children are
instructed. I believe that it is not the function of the United
States District Court to advance by judicial fiat any social
philosophy, however benign. The temptation to do either or
both has proved almost irresistible in the field of school de-
segregation.

The qualitative nature of education is a matter for local
determination. The citizens of a school district are entitled to
select, free from federal supervision, those elected representa-
tives who in the citizens’ collective opinion will best admin-
ister such school system. The citizens are entitled to deter-
mine the amount they are willing to pay for the educational

4 Counsel for the defendants has asserted that defendants have “sub-
mitted” a plan rather than “proposed” or “recommended a plan. In
view of this Court’s holding (page 8), the distinction appears irrelevant.

102a

facilities they desire. It might appear that the foregoing state-
ment is basic enough to be included in an eighth grade Gov-
ernment text. True. But the significance of this lesson ap-
parantly has been lost upon those who ignore its validity. It
is only when elected representatives deny equality of treat-
ment that federal courts should intervene.

It can be urged with assurance that in a pluralistic society
all children should be exposed at the earliest feasible time to
children of other backgrounds. True. I agree that both the
children and society itself will benefit. I do not agree, how-
ever, that a failure of exposure, in and of itself, amounts to a
constitutional deprivation correctable only by the federal
courts. In sum, there are aspirations of a peaceful and happy
society that do not rise to a constitutional level and are not
therefore attainable in a court of law.

Court deal with rights, not ethical behavior, not social
accommodations, but rights, rights guaranteed by the Constitu-
tion of the United States. That is avd should be the limit
of our function.

In contrast to the foregoing, it is a constitutional right en-
forceable in the federal courts that students, irrespective of
race or residence, shall share equally all facilities of a school
system, both the superior and the inferior.

The only feasible method of sharing requires a balancing in
each school between black and white students in a ratio ap-
proximating the system-wide balance. Insofar as either plan
wi!] result in an acceptable redistribution, such plan meets the
constitutional limitations set forth in both the Swann and
Keyes cases.

The defendants may adopt their own plan, may adopt the
plaintiffs plan, may combine the two, or any parts thereof,
provided that each school in the school district as of Septem-
ber 1, 1976, is desegregated as defined herein.

Alternate schools, traditional schools, magnet schools and
open schools are all acceptable if properly racially balanced:
None is acceptable if not.

103a

At this time the composition of the Dayton School District
is approximately 48% black — 52% white. So long as the
schools of the Dayton School District each reflect this district
ratio plus or minus 15%, they will be deemed to be de-
segrated.5 Accordingly, this Court does therefore ORDER
that as of September 1, 1976, each and every school in the
Dayton School District will have a pupil population approach-
ing the district percentage, but deviating no more than 15%,
plus or minus.

There is a specific and limited exception from the foregoing
that the Court will permit. Under the present system in
force in Dayton, Ohio, students commence attendance at a
specific high school in the tenth grade and remain there until
graduation some three years later at the end of the twelfth
grade. A high school is more than a collection of classrooms.
[t is an entity in which the students take deep pride. It is
frequently the first and often the last educational entity with
which students identify. There would appear to be something
unfair in a situation that might destroy the continuity of
athletic teams, student publications and activities. The one
or two years already spent in a high school has created a
loyalty that should be encouraged. There are all too few
such institutions still remaining in our society today.

Limited only to high school students and limited only to
the academic years of 1976-1977 and 1977-1978, the Court
will permit those students already enrolled in a specific high
school to graduate from that high school, even though the
ultimate determination of attendance boundaries would ex-
clude them therefrom. This privilege shall not be extended
to any student not already enrolled in the tenth or eleventh
grades of a specific high school.

The Court notes the following language in Swann:

5See Footnote 12, Higgins v. Board of Education of the City of
Grand Rapids, 508 F.2d 779 at 787 (6th Cir. 1974).

104a

The constitutional command to desegregate schools does
not mean that every school in every community must
always reflect the racial composition of the school system
as a whole.®

In a situation, however, where a specific school should deviate

further from the foregoing percentages by reason of geographic
location, the Court will consider such instances on a school-by-

school basis.

II.
MASTER

In the achieving of the redistribution required on a school-
by-school basis, the guidelines will be followed wherever
possible for elementary students.

1. Students may attend neighborhood walk-in schools in
those neighborhoods where the schools already have the
approved ratio;

2. Students should be transported to the nearest available
school;

3. No student should be transported for a period of time
exceeding twenty (20) minutes, or two (2) miles, which-
ever is shorter.

The logistics involved will be complex and time-consuming.
The establishment of attendance zones for each of the schools
will require supervision by this Court. Accordingly, in ac-
cordance with Rule 53 of the Federal Rules of Civil Procedure,
the Court does find that this case is one wherein exceptional
conditions require the appointment of a Master.

Dr. John A. Finger of Providence, Rhode Island, is hereby
appointed Master to supervise such undertaking. Such
Master will have all of the powers set forth in Rule 53(c),

6 Swann, supra at page 24.

105a

Fed. R. Civ. P., and will at the earliest possible time submit
to this Court a report indicating the number of students by
race who will attend each of the schools in the Dayton school
system in accordance with the direction set down heretofore.
An opportunity will be given to the defendant to obtain
promptly information regarding parent choices as outlined on
payes 81-83 of the defendant’s plan. Such Master will receive
out-of-pocket expenses and compensation for his services
rendered ir. such amount as the Court may determine. Pre-
vious Orders of this Court directing assistance to Dr. Finger
will apply equally to his service as Master.

III.
COMMUNITY PARTICIPATION

The parties are in agreement that a citizens board should
be appointed to monitor the plan as ultimately adopted and
to insure that it functions in accordance with the Order of
this Court. Such a board composed of representative citizens
of the community will be appointed for a period not to exceed
three years. The Court will reserve the right to extend or
to terminate the services of such board, should such prove
advisable. Defendants are directed to make space available
for the needs of such board, to provide necessary secretarial
and clerical assistance, and to make available at all reasonable
times such information as the board may from time to time
require. The members of this board will serve without com-
pensation, but will be reimbursed for out-of-pocket expenses
which will be taxed as court costs in this matter.

‘

IV.
CONCLUSIONS OF LAW
A.

A school system composed of schools where the attendance
meets the district ratio plus or minus 15% is a desegregated

106a

system as contemplated in Keyes v. School District No. 1 and
Swann v. Charlotte Mecklenburg Board of Education.

B.

Variations from the foregoing may be permitted in excep-
tional circumstances without destroying the desegregation of
such system.

C.

Educational techniques, experimental schools and expanded
parent choice are not matters relating to constitutional de-
privations so long as the requirements of Conclusion of Law
A are followed.

D.

Defendant, Dayton Board of Education, must provide ade-
quate transportation for all students affected by reassignment
to comply with this Order.

It is so ORDERED.

/s/ CARL B. RUBIN
Carl B. Rubin
United States District Judge

107a

I. DISTRICT COURTS DECEMBER 29,. 1975
JUDGMENT.

(Filed December 29, 1975)

UNITED STATES DISTRICT COURT
FOR THE
SOUTHERN DISTRICT OF OHIO

Civil Action File No. C-3-75-304

MARK BRINKMAN, et al.,

Plaintiffs,
v.

JOHN J. GILLIGAN, et al.,
Defendants.

JUDGMENT

This action came on for hearing before the Court, Hon-
orable Carl B. Rubin, United States District Judge, pre-
siding, and the issues having been duly heard and a decision
having been duly rendered,

It is Ordered and Adjudged that limited only to high school
students and limited only to the academic years of 1976-1977
and 1977-1978, the Court will permit those students already
enrolled in a specific high school to graduate from that high
school, even though the ultimate determination of attendance
boundaries would exclude them therefrom. This privilege
shall not be extended to any student not already enrolled in
the tenth or eleventh grades of a specific high school. Where
a specific school should deviate further from the foregoing
percentages by reason of geographic location, the Court will
consider such instances on a school-by-school basis.

108a

In the achieving of the redistribution required on a school-
by-school basis, the guidelines will be followed wherever
possible for elementary students.

1. Students may attend neighborhood walk-in schools
in those neighborhoods where the schools already have
the approved ratio;

2. Students should be transported to the nearest avail-
able school.

3. No student should be transported for a period of
time exceeding twenty (20) minutes, or two (2) miles,
whichever is shorter.

The establishment of attendance zones for each of the schools
will require supervision by this Court. Accordingly, in accord-
ance with Rule 53 of the Federal Rules of Civil Procedure,
the Court does find that this case is one wherein exceptional
conditions require the appointment of a Master.

Dr. John A. Finger of Providence, Rhode Island, is hereby
appointed Master to supervise such undertaking. Such Master
will have all of the powers set forth in Rule 55 (c), Fed. R.
Civ. P., and will at the earliest possible time submit to this
Court a report indicating the number of students by race who
will attend each of the schools in the Dayton school system
in accordance with the direction set down heretofore. An
opportunity will be given to the defendant to obtain promptly
information regarding parent choices as outlined on pages
81 — 83 of the defendant’s plan. Such Master will receive
out-of-pocket expenses and compensation for his services ren-
dered in such amount as the Court may determine. Previous
Orders of this Court directing assistance to Dr. Finger will
apply equally to his service as Master.

The parties are in agreement that a citizens board should
be appointed to monitor the plan as ultimately adopted and
to insure that it functions in accordance with the Order. A
board composed of representative citizens of the community

109a

will be appointed for a period not to exceed three years. The
Court will reserve the right to extend to or terminate the
services of such board, should such prove advisable. Defen-
dants are directed to make space available for the needs of
such board, to provide necessary secretarial and clerical assist-
ance, and to make available at all reasonable times such in-
formation as the board may from time to time require. The
members of this board will serve without compensation, but
will be reimbursed for out-of-pocket expenses which will be
taxed as court costs in this matter.

A school system composed of schools where the attendance
meets the district ratio plus er minus 15% is a desegregated
system as contemplated in Keyes v. School District No. 1 and
Swann v. Charlotte Mecklenburg Board of Education.

Variations from the foregoing may be permitted in excep-
tional circumstances without destroying the desegregation
of such systems.

Educational techniques, experimental schools and expanded
parent choice are not matters relating to constitutional de-
privations so long as the requirements of Conclusion of Law
A are followed.

Defendant, Dayton Board of Education, must provide ade-
quate transportation for all students affected by reassignment
to comply with this Order.

Dated at Dayton, Ohio, December 29, 1975

JOHN D. LYTER, CLERK
/s/ Rebecca J. Ellis, Deputy

110a

J. DISTRICT COURT'S MARCH 23, 1976 ORDER.
(Filed March 23, 1976)

No. C-3-75-304

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MARK BRINKMANN, et al,

Plaintiffs,
v.

JOHN J. GILLIGAN, et al,
Defendants.
ORDER

This matter is before the Court for consideration of the
Master's report heretofore filed. Pursuant to the filing of such
report a hearing was held March 22 and 23, 1976, in accordance
with Rule 53(e)(2) of the Federal Rules of Civil Procedure.
At such hearing the parties were given an opportunity to pre-
sent evidence and testimony.

Upon consideration of such report and the testimony and
evidence presented, the Court is of the opinion that such report
should be disposed of as follows:

I,
ELEMENTARY SCHOOLS

That portion of the Master’s report dealing with the deseg-
regation of elementary schools in the Dayton School District
by the device of pairing is in keeping with the mandate of the
United States Court of Appeals for the Sixth Circuit and the
order of this Court dated December 29, 1975. Accordingly,
such pairing assignment is hereby adopted.

The Master’s report recommends a semiannual exchange of
paired schools with a similar exchange assignment of teachers.

lla

Defendant Dayton Board of Education has proposed an annual
exchange without movement of teachers (Board Exhibit CW).

Subject to the limitations set forth on page 5 of this Court’s
order of December 29, 1975,’ defendant may adopt either
method.

The proposal of defendant Dayton Board of Education seeks
a three-phase implementation over a three year period. In
view of the mandate of the United States Court of Appeals
for the Sixth Circuit, 518 F.2d 833 at 857, such “phase in” is
hereby rejected.

Certain elementary schools will be desegregated by zone
change. Such zone changes as are recommended in the Mas-
ter’s report are hereby approved.

Il.
HIGH SCHOOLS

The Master's report for desegregating high schools recom-
mends a selection by students plus a random assignment where
necessary ( Master’s report pp. 15-18). Defendant has suggest-
ed an assignment program by specific attendance districts
(Board Exhibit CV).

Subject to the limitations set forth on page 5 of this Court's
order of December 29, 1975, and subject further to the excep-
tion for high school juniors and seniors set forth on pages 5
and 6 of such order, defendant may adopt either method of
assignment.

1“At this time the composition of the Dayton School District is
approximately 48% black — 52% white. Sv long as the schools of the
Dayton School District each reflect this district ratio plus or minus
15%, they will be deemed to be desegregated. Accordingly, this Court
does therefore ORDER that as of September 1, 1976, each and every
school in the Dayton School District will have a pupil population
approaching the district percentage, but deviating no more than 15%,
plus or minus.”

112a

Il.
MISCELLANEOUS

The report of the Master dealing with “Handicapped and
Special Education Program,” “Magnet Schools,” and “Magnet
Programs for Grades 6, 7 and 8” are hereby adopted.

Defendant’s attention is directed again to the following por-
tion of the order of December 29, 1975:

“Alternate schools, traditional schools, magnet schools
and open schools are all acceptable if properly racially
balanced. None is acceptable if not.”

IV.
FURTHER PROPOSALS

The order of reference heretofore referred to directed the
Master to report upon particular issues. Portions of the
Master’s report not dealing with those particular issues will be
deemed personal recommendations of such Master and not
requiring action by this Court.

This order is intended to be a final and appealable order
and a determination pursuant to the mandate of the United
States Court of Appeals for the Sixth Circuit.

No determination herein shall be deemed to bar the sub-
mission of any other plan to this Court that would be consistent
with the standards set forth in the order of December 29,
1975. The Court will at all times entertain a motion by any
party for consideration of any specific procedure and approval
will be freely granted so long as the restrictions above set
forth are adhered to.

It must be obvious to all parties concerned that the longer
an opportunity is given for students, teachers and the com-
munity to understand a specific plan, the easier a transition
period will be. In any proposal for a change after this date,
the Court will take into consideration the amount of “lead
time” available prior to September 1, 1976. In the event the
Court determines that a proposed change should be adopted

113a

but that insufficient time remains prior to September 1, 1976,
such improvement may be adopted effective September 1,
1977, or such other date as might appear appropriate at the
time.

V.
SUMMARY

Defendant has raised five objections to the report of the
Master:

1. Pupil assignment should be made by the central ad-
ministration; ‘

2. Pupil assignment should be made in the spring of 1976;

3. Transfer of elementary students should be made on a
yearly rather than on a semester basis;

4. The Elementary School Plan should be a three*phase
plan and

5. High School assignment should be on the basis of geo-
graphic zone rather than upon choice and random
assignment.

The Court has disposed of such objections as follows: With
the exception of Objection 4 which has been rejected, the
defendant Dayton Board of Education may assign students
by action of the central administration, may assign students
this spring, may transfer elementary school students on an
annual basis, and may assign high school students by geo-
graphic zones.

All of the foregoing being subject to the limitations of this
Court’s order of December 29, 1975.

All other questions still remaining before the Court, such
as payment of attorney fees and the sharing of costs among
the several defendants herein are hereby continued for further
disposition.

IT IS SO ORDERED.

CARL B. RUBIN
United States District Judge

1l4a

K. DISTRICT COURT'S MARCH 25, 1976 JUDG-
MENT.
(Filed March 25, 1976)

UNITED STATES DISTRICT COURT
FOR THE
SOUTHERN DISTRICT OF OHIO

Civil Action File No. C-3-75-304

MARK BRINKMAN, et al.,
Plaintiffs,

V.

JOHN J. GILLIGAN, et al.,
Defendants.

JUDGMENT

This action came on for hearing before the Court, Honor-
able Carl B. Rubin, United States District Judge, presiding,
and the issues having been duly heard and a decision having
been duly rendered,

It is Ordered and Adjudged that upon the consideration of
the Master’s report and the testimony and evidence presented
in accordance with Rule 53(e)(2) of the Federal Rules of
Civil Procedure, that such report should be disposed of as
follows:

I ELEMENTARY SCHOOLS: That portion of the Mas-
ter’s report dealing with the desegregation of elementary
schools in the Dayton School District is hereby adopted. De-
fendant Dayton Board of Education has proposed an annual
exchange without movement of teachers (Board Exhibit CW);
the Master's report recommends a semiannual exchange of
paired schools with a similar exchange assignment of teachers.

ll5a

Subject to the limitations set forth on page 5 of this Court’s
Order of December 29, 1975, defendant may adopt either
method. Certain elementary schools will be desegregated by
zone change. Such zone changes as are recommended in the
Master's report are hereby approved.

If HIGH SCHGOLS: The Master’s report for desegre-
gating high schools recommends a selection by students plus
a random assignment where necessary (Master’s report pp.
15-18). Defendant has suggested an assignment program
by specific attendance districts (Board Exhibit CV). Subject
to the limitations set forth on page 5 of this Court’s Order
of December 29, 1975, and subject further to the exception
for high school juniors and seniors set forth on page 5 and
6 of such order, defendant may adopt either method of assign-
ment.

III MISCELLANEOUS: The report of the Master deal-
ing with “Handicapped and Special Education Program,”
“Magnet Schools,” and “Magnet Programs for Grades 6, 7, and
8” are hereby adopted. Defendant's attention is directed
again to the following portion of the order of December 29,
1975: “Alternate schools, traditional schools, magnet schools
and open schools are all acceptable if properly racially bal-
anced. None is acceptable if not.”

IV FURTHER PROPOSALS: No determination herein
shall be deemed to bar the submission of any other plan to
this Court that would be consistent with the standards set
forth in the order of December 29, 1975. The Court will
at all times entertain a motion by any party for consideration
of any specific procedure and approval will be freely granted
so long as the restrictions above set forth are adhered to.

In any proposal for a change after this date, the Court will
take into consideration the amount of “lead time” available
prior to September 1, 1976. In the event the Court deter-
mines that a proposed change should be adopted but that
insufficient time remains prior to September 1, 1976, such

116a

improvement may be adopted effective to September 1, 1976,
such improvement may be adopted effective September 1,
1977, or such other date as might appear appropriate at the
time.

The following objections were raised by Defendant and are
disposed of as follows:

1. Pupil assignment should be made by the central ad-
ministration;
GRANTED;

2. Pupil assignment should be made in the spring of 1976;
GRANTED;

3. Transfer of elementary students should be made on a
yearly rather than on a semester basis;
GRANTED;

4. The Elementary School Plan should be a three-phase
plan;
REJECTED;

5. High School assignment should be on the basis of geo-
graphic zone rather than upon choice and random assignment;
GRANTED;
THE FOREGOING BEING SUBJECT TO THE LIMITA-
TIONS OF THIS COURTS ORDER OF DECEMBER 29,
1975.

All other questions still remaining before the Court are
hereby continued for further disposition.

APPROVED FOR ENTRY:
/s/ CARL B, RUBIN .

Carl B. Rubin
United States District Judge

JOHN D. LYTER, CLERK
/s/ REBECCA J. ELLIS
Rebecca J. Ellis, Deputy

Dated at Dayton, Ohio, this
24th day cf March, 1976.

117a

L. DISTRICT COURT'S MAY 14, 1976 ORDER.
(Filed May 14, 1976)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Civil No. C-3--75-304

MARK BRINKMAN, et al.,
Plaintiffs,

Vv.

JOHN J. GILLIGAN, et al.,
Defendants.

ORDER

This matter is before the Court on the motion of defendant
Dayton Board of Education dated May LI, 1976, to modify
the Report of the Master. Such motion is in six branches.
The first five branches of such motion refer to matters that
appear to be within the limits of modification set forth by
this Court in its Order of March 23, 1976. Such five branches
are hereby GRANTED.

The request in branch no. 6 is not within the permissive
changes in the Order of March 23, 1976 and such branch

of motion is hereby DENIED.

It is so ORDERED.

/s/ CARL B. RUBIN
Carl B. Rubin
United States District Judge

118a

M. COURT OF APPEALS’ JULY 26, 1976 ORDER.
Decided and Filed July 26, 1976

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

—

NO. 76-1854

—_— — —_ -_—_- -

Mark BrINKMAN, et al., )

Plaintiffs-Appellees, APPEAL from the

United States District

Court for the South-
Joun J. Grnuican and DayTon BoarD| ern District of Ohio.

oF EpucaTIon, et al.,

Defendants-Appellants.

Vv.

Before: Pumps, Chief Judge; Peck and Livery, Circuit
Judges.
- Per Curtam. The Dayton, Ohio Board of Education (the
Board) appeals from a judgment of the district court entered
on March 25, 1976 which implemented its desegregation order
and judgment of December 29, 1975. This court has cor-
sidered two previous appeals in this litigation and our opin-
ions are published at 503 F.2d 684 (1974) and 518 F.2d na
(1975). This court concluded that the desegregation order

119a

from which the second appeal was taken (by the plaintiffs)
was inadequate and we remanded the case to the district court
with specific instructions, as follows:

On remand we direct that the court adopt a systemwide
plan for the 1976-77 school year that will conform to the
previous mandate of this court and to the decisions of
the Supreme Court in Keyes and Swann. We direct that
this plan be adopted not later than December 31, 1975,
so that it may be placed in effect at the beginning of the
new school year in September 1976. 518 F.2d at 857.

After considering a plan proposed by the plaintiffs and
one “submitted” but not “proposed” or “recommended” by
the Board, the district court filed an order and a judgment on

December 29, 1975. The judgment provided, in part, as fol-
lows:

A school system composed of schools where the at-
tendance meets the district ratio plus or minus 15% is a
desegregated system as contemplated in Keyes v. School
District No. 1 and Swann v. Charlotte Mecklenburg Board
of Education.

Variations from the foregoing may be permitted in ex-
ceptional circumstances without destroying the desegre-
gation of such systems.

The judgment also permitted high school students already en-
rolled at a particular school to graduate from that school
regardless of attendance zone boundaries. The judgment con-
tained guidelines to be followed “wherever possible for ele-
mentary students”:

1. Students may attend neighborhood walk-in schools
in those neighborhoods where the schools already have
the approved ratio;

2. Students should be transported to the nearest avail-
able school.

3. No student should be transported for a period of

120a

time exceeding twenty (20) minutes, or two (2) miles,
whichever is shorter.

Dr. John A. Finger, Jr. was appointed Master to establish
attendance zones and a citizens board was authorized to mon-
itor “the plan.”

On March 15, 1976 the Master filed a report containing
recommended desegregation plans for the elementary schools
and the high schools of the Dayton system. The report
contemplated achieving desegregation of the elementary
schools by a combination of redefining attendance areas and
the pairing of schools. Under the plan proposed for the high
schools attendance zones would be the primary tool. In a
judgment entered March 25, 1976 the district court adopted
the portion of the Master’s report dealing with the elementary
schools and approved the Master’s recommended zone
changes. However, the Board was given the option of mak-
ing annual exchanges between paired schools without a move-
ment of teachers or semi-annual exchanges of both pupils
and teachers as recommended by the Master. The judgment
also permitted the Board to implement high school desegrega-
tion by employing an assignment program by specific attend-
ance districts rather than following the Master’s proposal of
permitting school selection by students plus random assign-
ments as necessary to achieve the mandated plus or minus
15% range. The court denied the Board’s proposal for a three
year phase-in of the elementary school plan.

The March 25 judgment contained this additional provision:

IV FURTHER PROPOSALS: No determination here-
in shall be deemed to bar the submission of any other
plan to this Court that would be consistent with the
standards set forth in the order of December 29, 1975.
The Court will at all times entertain a motion by any
party for consideration of any specific procedure and ap-
proval will be freely granted so long as the restrictions
above set forth are adhered to.

l2la

On appeal the Board argues that the remedy ordered by
the district court exceeds the scope of the violations. It is
argued that the district court has adopted a fixed percentage
formula to achieve racial balance in the Dayton schools con-
trary to the holding of the Supreme Court in Swann v. Char-
lotte-Mecklenburg Board of Education, 402 U.S. 1 (1971).
The Board relies particularly upon the Court's statement that
the constitutional requirement for school desegregation does
not mean that “every school in every community must always
reflect the racial composition of the school system as a whole.”
Id. at 24.

This court has previously held that the practices of the
Dayton school system constituted de jure segregation, citing
Keyes v. School District No. 1, Denver, 413 U.S. 189 (1973).
Brinkman, supra, 518 F.2d at 854. Though this court ordered
systemwide desegregation, the Board proposed no plan to
achieve this mandate and m

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1894%3A01. Public record. Not legal advice.