Appendix — Dayton Board of Education v. Brinkman
Supreme Court brief1979
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APPENDIX war 3 8
Volume II | MICHAEL ROBAK, JR..CLENK
IN THE eee ee
SUPREME GOURT 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.,
Respondents.
On Writ Of Certiorari To The United States Court Of Appeals
For The Sixth Circuit
Petition For Certiorari Filed October 13, 1978
Certiorari Granted January 8, 1979
TABLE OF CONTENTS
Volume II
Page
VII. RELEVANT PARTS OF THE RECORD OF
TWENTY VOLUMES TRANSCRIBED DUR-
ING THE VIOLATION HEARING HELD
IN DISTRICT COURT IN NOVEMBER
AND DECEMBER OF 1972 (R. I.)
(Continued from Volume I)
V. Testimony of William Marquardt ........ 351-352
W. Testimony of Nelson Whiteman ......... 352-367
X. Testimony of Walter M. Bagwell ........ 367-382
Y. Testimony of Ralph Curk ............... 383-413
Z. Testimony of William Goff ............. 413-423
AA. Testimony of Lorana Madeline Dorsey .. .423-424
VIII. RELEVANT PARTS OF THE RECORD OF
THE REMEDIAL HEARING HELD IN
DISTRICT COURT IN FEBRUARY OF
1975 (R. ID.) ... 6... eee ee ee ee reese eee ypees 425
A. Testimony of Robert O. Greer .......... 425-428
B. Testimony of Gordon Foster ............ 429-433
IX. RELEVANT PARTS OF THE RECORD OF
THE REMEDIAL HEARING HELD IN DE-
CEMBER OF 1975 AND JANUARY OF
rete N Gee cevss es veces cecees 433
A. Testimony of William M. Gordon ....... 433-437
B. Testimony of Larry W. Hughes ......... 438
C. Testimony of John B. Maxwell .......... 438-439
D. Testimony of Gordon Foster ........... 439-443
II.
X. RELEVANT PARTS OF THE RECORD OF
FOUR VOLUMES TRANSCRIBED DURING
THE REMAND HEARING HELD IN DIS-
TRICT COURT IN NOVEMBER OF 1977
ee ei eat ae
A. Court and Counsel Commentary .........
Wayne M. Carle .........:.eeeeeeeeees
John Treacy ........cccceccesscesecece
EE TN oi vi cn ec dessscssnesiuunn
QA nO &
Page
351
V. TESTIMONY OF WILLIAM MARQUARDT.
[R. I. 1721-1722, Vol. 17]. Q. Would you state your name,
please?
A. Willard Marquardt.
Q. And are you associated with the Dayton Board of
Education? p
Yes, sir.
In what position, Mr. Marquardt?
Director of Athletics and Physical Education.
How long have you held that position?
I think this is my fourteenth year.
And just what does this position involve?
Well, it involves a great deal of all the athletic scheduling
and hiring of officials and trying to get sites to play ballgames
and physical education and health and safety quite a lot.
Q. Are you involved in any type of city league that is in
existence in the City of Dayton?
A. Yes. Our office makes all the league schedules for all
sports.
Q. What teams comprise the City League?
A. We have eleven of them. Do you want me to name
them?
Q. Are they the high schools in the City of Dayton?
A. Yes, they are all eleven high schools.
Q. Now, have you made a search of the minutes of the
Athletic Board to determine when Dunbar became a member
of the Dayton City League?
A. Yes, sir. Dunbar was a full member of the Dayton City
League in 1948.
Q. And since you have been Athletic Director of the Day-
ton Board of Education, has Dunbar participated in the City
League with all other high school teams in this league?
A. Yes, sir, they have.
rOPOP OP
352
[R. I. 1736, Vol. 17] Q. Do you get into the question of
whether or not other teams — the question of whether or not
there are other teams that the teams may schedule besides the
City League games?
A. No, sir. Each school has a faculty manager of athletics
and they are responsible for making up the complete schedule
of non-league games. They can make them either at their
school or away, whichever they desire.
Q. And in football and basketball there has been this
innercity competition between all the eleven teams in the
City League, is that correct?
A. Yes, sir.
W. TESTIMONY OF NELSON T. WHITEMAN.
[R. I. 1737, Vol. 17] Q. Would you state your name,
please?
A. Nelson Whiteman.
Q. And are you presently associated with the Dayton
Board of Education?
A. Yes, sir.
Q. And what position do you hold?
A. Principal of Patterson High School.
[R. I. 1739-1747, Vol. 17] Q. How many classes or grades
were involved in this school at that time?
A. At that time, three years, three grade levels; tenth,
eleventh, and twelfth.
Q. And how long was Patterson Cooperative a three-grade
school?
Unitil 1968.
And what three grades would that have been?
Ten, eleven, and twelve.
Now, you indicated that it was a vocational type school?
OPor
we
353
A. Right.
Q. How were the students recruited for attendance — first
of all, was this an all citywide school?
A. Yes, sir.
Q. How were the students selected or recruited during
the period of time that you were there, from 1953 up until
the spring of 1967?
A. We had a team of coordinators and counselors that
visited the other high schools in the city and put on an as-
sembly program for the ninth grade students in those schools to
explain to them the opportunities that were available at Pat-
terson Cooperative High School.
Q. And did you visit or did the teams visit all of the
high schools?
A. Yes, sir.
Q. And were you a part of this team?
A. Yes, sir.
Q. What high schools did you visit?
A. Oh, I visited Fairview and Belmont, Wilbur Wright,
Stivers, Roth, Roosevelt and Dunbar.
Q. Now, during the period of time that you were in the
Patterson Cooperative High School, from 1953 through the
time it became a four-year high school, were there any spaces
available for any additional students in this school?
A. Yes, sir.
Q. Now, during this period of time, up until it became a
four-year high school, were there any efforts made by the staff
at Patterson to obtain more black students at Patterson?
A. Yes. In one incident I can recall particularly in Feb-
ruary of 1965, we had a special luncheon for the principals and
guidance counselors of the black schools in Dayton to try to
enlist their help, to encourage more black students to attend
Patterson.
Q. And this would have been when, in ’65 did you say?
A. February of 1965.
Q. Now, Patterson became a four-year high school in 1968?
A. Right.
354
Q. At this time your recruiting would have taken place, I
take it, in the spring of 1967, when applications would have
been received?
A. No, your applications would have been received in the
spring of 1968 for the fall of 1968.
Q. All right. Could you tell us what were the considera-
tions tl at went into or how you decided to select the freshman
students that were taken into the student body in the fall of
1968?
Well, I’m not sure I know exactly what you are asking
me.
Q. All right. Let me restate the question.
A. Okay.
Q. Your procedure before was to visit the high schools.
A. Correct.
Q. Now, as I understand it — well, let’s go back to 1968.
On the applications, what considerations — when you became
a four-year high school, were there an increase in applications
at that time?
A. Yes.
Q. What were the number of increases?
A. Well, when we were a three-year high school we never
had as many as five hundred applications for any one year.
We were going to shoot for five hundred applicants at the
freshman level, and the first year we had 1200 applicants.
Q. Now, how did you decide to select the students from
the various schools when it became a four-year high school?
A. Well, when it became a four-year high school the selec-
tion of students then took place at the elementary level, at
the completion of the elementary school, rather than at the
freshman level of the high school, and we decided that the
fair way to do it would be to give every school so many places
of those students that were to be selected.
The first thing we did was to establish the total enrollment
of eighth grade students that year, citywide, both public and
private schools.
355
That was right in the neighborhood of 5,000 students. We
were shooting for an enrollment of 500 that year. So we guar-
anteed every elementary school that we would take ten per-
cent of their total eighth grade enrollment.
Q. And that was ten percent of each elementary school
in the City of Dayton?
A. That’s right.
Q. And did you do that for the start of the year for
1968-69?
A. Yes.
Q. Now, were there any other criteria or selection processes
that were gone into rather than, I guess we call it, the ten
percent?
A. No. Again, I'm not sure I understand your question.
Q. Of the students that applied, where did they apply for
admission to the school?
A. Well, we had a printed application form that they could
pick up either from their counselor or their principal, which-
ever it happened to be, and they could return the application
blank completed and signed by their parent to their counselor
or principal, and then we made a return visit to the school for
an interview with each student.
Q. Now, at any time after it became a four-year high
school, was the policy for selecting students changed?
A. Yes.
Q. And would there have been a change in the year 1970-
71?
A. 1970-71?
Yes, we went to a selection criteria that Dr. Durant, along
with Dr. Goff, helped us to work out to make the selection
more objective. .
Q. And could you explain that?
A. Well, I don’t know what you mean.
Q. What do you mean by being more objective?
A. Well, it was felt that the counselors of our school had
too much authority in the selection of students previous to
356
that, and that the selection should be more objective than
subjective.
Q. And was there any change then in the policy of selection
in the year prior to 1971-72, the registration period?
A. Yes.
Q. What was that change?
A. That year, which would be the present freshman class,
the students were selected by lottery.
Q. And was there any basis or change in that at that time?
A. No.
Q. Were there any criteria established for percentages on
ratio on black or white or female or male?
A. Yes. Again, the first thing established is the total num-
ber of eighth graders in the city, and then the percentage of
black students citywide, so the percentage of black students
citywide is the same as the percentage of black students except
in our freshman class.
Q. And that became effective what year?
A. This year, this school year.
CROSS-EXAMINATION
BY MR. LUCAS:
Q. Let’s, if we can, put the policy in reverse order.
You said in 1971-72 students were selected by lottery?
A. That's right.
Q. Now, does the 10 percent rule still apply?
A. Yes, sir.
Q. So you get your pool. Is it from all of the elementary
schools you take? You see how many eighth graders you have?
A. Right.
Q. And 10 percent from every school are eligible to go into
the pool, is that right?
A. Well, it’s not 10 percent every year. The percentage
depends on the total enrollment of eighth grade students city-
wide.
The percentage may vary from one year to the other.
357
Q. Okay. When was the 10 percent rule instituted? Was
that 1968?
A. That was the first year we were shooting for 10 percent.
Q. Okay. That 10 percent has been dropped, is that
correct?
A. Well, the percentage varies from year to year, de-
pending on the total enrollment.
Q. So there is no flat 10 percent rate?
A. That’s right. The flat figure is 500 freshmen each year.
Q. Now, before 1968 how did a child get into the school,
before you had the freshman class?
A. Okay. A freshman in another high school would make
application directly to the vocational division he wanted to
enroll in.
Q. The vocational division at Patterson, is that right?
A. Right.
Q. He would not go through his counsellor and be in
turn recommended to you?
A. No. We visited the schools, and as we visited we visited
the high schools, and put the presentation on for the fresh-
man class, and as we visited they could pick up application
blanks and other literature from us, but then they returned
them directly to us.
[R. I. 1748-1764, Vol. 17] Q. All right. And then the
counsellors made the decision as to how many students would
get in. And how many would you take in an average class
before 1968?
A. Well, before 1968 we would take most anyone that
applied, providing he was passing and had a good attendance
record.
Q. Okay. Before that time, since 1914, really, when it
was founded, Patterson had operated below capacity, is that
correct?
A. That’s right.
358
Q. In 1968 — I’m sorry. Let's go back.
Were you there in 1953?
A. I came there in the fall of 1953.
Q. All right. Was there any black teachers at Patterson
at that time?
A. No, sir.
Q. Were there any black counsellors?
A. No, sir.
Q. And the admission process was through black counsel-
lors, is that — I’m sorry. Through the counselling department
in each division?
A. Yes.
Q. All right. And how long a period was it before you
had any black teachers at Patterson?
A. I can’t answer that exactly. In the early ’60’s we had
one black teacher in the medical arts department, but I can’t —
Q. I’m sorry? What department?
A. Medical arts, but I can’t tell you the years.
Q. Allright. When did you get your first black counsellor?
A. ’68 or ’69.
Q. So until that time the primary admitting unit, or until
1968 at least, the admission process was through the counsel-
lor, and you had no black counsellors, is that correct?
A. That’s correct.
Q. By 1969 how many black teachers did you have?
A. 1968?
Q. Yes.
A. I don’t know that we had any. I can’t say for sure but
I don’t know that we had any in 1968.
Q. Was it the 69-70 school year that you got your first
black counsellor?
A. I would guess the 69-70 school year, yes.
Q. Right. Now, was it the 68-69 school year that you
had the policy change about the 10 percent?
A. No. The ’68-69 school year was the first year for the
freshman class.
Q. All right.
359
A. And the 10 percent was established for the first year
because the total enrollment city-wide was 5,000, and we
were shooting for a mark of 500 freshmen.
Q. So you took the 10 percent for each school for the ’68-69
school year?
A. Right.
Q. That’s what I want to understand.
Now, what was the admission process, the ‘68-69 school
year? If you can just sort of trace for me, what the average
child who was interested in Patterson, what process would he
follow to get in?
A. Okay. In the 68-69 year we visited the elementary
schools and: we put on a program that was very similar to the
one we put on in the high schools, to present to the students
the opportunities that were available to them at Patterson
Co-op.
Q. Was this an all white presentation team?
A. In ’68-69, probably.
Q. Go on.
A. We left then application blanks in the elementary
_ schools for the students to pick them up from either their
counsellor or their principal. In some schools they didn’t have
counsellors at the elementary level, so they had to pick them
up from the principal's office.
They had to take them home, have them completed, and
signed by the parents, and returned to the counsellor in their
elementary school.
We then went back and interviewed those students and
made our selection from those that applied.
Q. Now, when you say we, do you mean the team or the
usual counsellors from each department?
A. A team of counsellors.
Q. Isee. And do you generally draw your team, one from
each department in the school?
A. We did, yes, the first year, and we did when we were
visiting high schools. .
Q. So essentially it was still the same initial process through
360
the counsellors, except the source of applications was more
organized?
A. Right.
Q. Is that a fair statement?
A. Yes.
Q. All right. Assuming you had 10 percent from each
school — I am not sure yet I understand how it works. Can
we do it with numbers?
A. Yes.
Q. Give me an example of a school you had a freshman
class to fill. Ro
A. Let’s say Westwood School had 100 eighth graders. We
were going to take 10 from Westwood School. Now, they
may only have 10 apply, but we will take those 10. If they
had 40 apply, we would take 10 from the 40, but if they have
100, we still will take 10.
Q. Using the 10 percent figure, that would be sufficient
to give you a full freshman class?
THE COURT: Let me ask one question, if I may. You
indicated you conducted a lottery. Is it a lottery at each school
that has in excess of the percentage number?
THE WITNESS: I am not sure I understand your ques-
"tion.
THE COURT: All right. Let’s assume this example; You
have 100 eighth graders and you are going to take 10. Forty
apply. Do you conduct a lottery among those 40?
THE WITNESS: Yes.
° ° oO
Q. The lottery was not in effect in 1968-69?
A. No. The lottery was only in effect for the present school
ear.
: Q. I think you have got me cleared up on 1968-69. How
many new students did you take in?
A. Five-hundred.
Q. Is that all freshmen that year?
A. No. Well, the 500 was freshmen. I didn’t answer your
question correctly, and I am sorry. The 1968-69 school year,
361
we had to take two classes, a freshman and a sophomore class.
We took 500 freshmen or approximately 500 freshmen.
Q. Now, before you added the freshman class to the school,
am I correct that you started with sophomores and they stayed
in the school full time and took the regular curriculum and
at the lith and 12th grades they worked two weeks and had
two weeks of study?
A. That’s right.
Q. So, their first year coming into the school was a ques-
tion of Ketting them a job. They had a regular curriculum in
the school unit; is that correct?
A. That’s right.
Q. And that continues today even though you have four
grades, freshmen and sophomore students have their school-
ing in the self-contained school unit and in the 11th and 12th
grades they do the two weeks of work and two weeks of
schooling?
A. That’s right.
Q. Are there any students in the 11th and 12th grades
who do not do the two weeks on and two weeks off and
take just only school courses?
A. From time to time there are, yes.
Q. I mean, is a student absolutely required to do the
work part of the program under the four years school that
you now have?
A. Yes, that is part of his program.
Q. What if you can’t get him a job? I don’t want to use
kicked out, but is he sent back to another school?
A. No, not always. We keep them. Sometimes they are,
sometimes they aren’t, depending on the student and the
circumstances, but normally a student that is doing well in
school and has the job potential, we will keep him until
we find him a job.
Q. And if you are unable to find him a job because of
the depressed labor market or what have you, would you
just keep him on through graduation?
A. Yes.
362
Q. And he gets the same kind of degree the other students
do?
. Toe .
r on you said that in 1970-71 there was another policy
changing that that Dr. Durant and Dr. Goft had worked out,
some policy criteria for acceptance of children?
. Yes.
9 What was the reason for adoption of this ger dh
A. Well, there has always been in some of the other schools
the feeling that the counsellors from our school or the cO-
ordinators from our school had been too subjective in their
selection and not objective enough in the criteria selection rat-
ing scale that they devised which was an attempt to become
more objective rather than as subjective as it had been.
Q. You say this has always been a problem? |
A. As long as I have been there.
Q. Is an asoiain that came about in 1968-69? You
have had a problem before?
A. No, we have always had the problem.
Q. As I understood it, you took in anyone who was in
‘ good standing before that because you had plenty of excess
P . .
ok That’s right, but the criticism was there in spite of
it. ,
. [am sorry .
: The criticism was there in spite of it. . '
Q. Even though you took everybody who applied an
was in good standing?
A. That's right. :
. You didn’t reject anyone
: Only those that were failing or had poor attendance
ds. .
ts In 1970-71, was there any particular acceleration of
this criticism as a result of the adding of the freshman class?
A. Yes. ry
Q. Was that the first time you actually limited enroll-
ment at Patterson?
—.
363
A. No, no. The limited enrollment was in 1968-69.
Q. And therefore, in 1970-71, you had this criticism and
you attempted to deal with it by setting up these criteria?
A. That’s correct.
Q. And I take it that didn’t satisfy the criticisms.
A. That’s right.
Q. So, you adopted what you call a lottery method in
1971-72 where you take the percentage city-wide depending
on you needs in terms of an entrance class which is 500?
A. Right.
Q. You take the same percentage from each school?
A. The same percentage from each school.
Q. Is it the percentage of the 500 that you divide up among
all the schools or do you take a percentage of the — suppose
School A has 500 people who want to go to Patterson whereas
School B only has 2. Do they still get the same 8 percent
or 7 percent quota?
A. Yes,
Q. So that a child going to one school where there are
more children applying for Patterson may be excluded from
Patterson because his school’s quota is filled; is that right?
A. Would you state the question again?
Q. Okay. Let’s take Jackson Elementary. Suppose under
the quota you can take 10 children.
A. Okay.
Q. You can take 10 children from Jackson and you have
40 who want to go.
A. Okay.
Q. Obviously there are 30 children who don’t get to go
to Patterson.
A. Right.
Q. Whereas Shoup Mill might have 2 children who want to
go to Patterson and have a quota which would permit 5 or 6
more children to go. Is there any provision for filling the va-
cancy by letting some of those other children from Jackson
who wanted to go take up that gap in the quota?
A. Yes.
4
364
Q. How do you work that?
A. Once a quota for each school has been established and
selected, then those schools who have not met their quota, all
the students that have not been selected go into a city-wide
pool and then they are selected from that.
Q. And how do you get your racial quota now?
A. How do we get it now?
Q. Well, you told us how you figured it. You took all
eighth graders in the city and then you took or you figured out
what percentage black that was and that was the percentage
you tried to have in your annual class; am I right?
A. Right.
Q. And all I am asking is how do you go about doing that?
Does it automatically happen that you get that percentage
black or do you have to use some other techniques to achieve
the percentage of blacks that there are in the eighth grade
system?
A. You have confused me with your question.
Q. Let me go back. It is my fault, I am sure.
Let’s assume that your percentage of black children in the
eighth grade is such that you require 200 black children in
the entering freshman class.
A. Yes.
Q. Suppose under the formula, the way it works on a
lottery, you only get 150. How do you go about getting the
other 50?
A. Well, the city-wide pool is divided into boys, girls, black
and white, and they will select them out of the city-wide pool.
Q. And you don’t use a lottery on that pool?
A. Yes.
Q. Well, how do you make sure you get the extra 50 black
children in my example?
A. Well, we ask the computer service to draw us the extra
fifty blacks out of the city-wide pool, be they boys or girls.
Q. If there are 500 blacks in the pool, then you take 50 by
lottery from the black pool; is that right?
A. Yes.
365
~
Q. What is the purpose of setting up these criteria?
A. You mean the percentage of black and white?
Q. Yes. What is the purpose for doing that?
A. It goes back to our original purpose, I think, of trying
to get as good a cross section from the entire city as we can
possibly get.
s You say your original purpose. How far back does that
go
; A. In 1968 when we became a four-year high school. That
is the way we set it up then.
ne In ees y get a cross section from the city as a whole
you have to look at factors such as race and s d thi ;
this sort; is that. correct? ia von sd
A. Yes, sir.
Q. And that’s the technique that the scho i
ol
has devised for doing? ies
Yes.
ag fora black children were in Patterson in 1968?
Yes.
I do not know.
Approximately?
Are you talking about percentage-wise or numbers?
Either way.
I can’t answer that.
POPOrPOrO>
° ee re °
A. If I read this correctly, in 1968,
right wi ae = percent, Am i
Q. Right. What about the other >
that on the exhibit? pee. ius _
A. 1969, 22.2 percent; 1970, 29.8 percent: bs
and 1972, 32.9 percent. percent; 1971, 31 percent;
Q. How about 1963, do you have that figure on there?
1963, yes. That is 1.8 percent.
- How do you account for the small nu
mb
students in Patterson in those years? Sct
366
A. What year are you talking about?
Q. 1963 and 1966.
A. I am not certain I can account for that period. We
visited the black high schools the same as we visited all other
high schools. I know that black students were reluctant to
come to Patterson High School much moreso than students
from other high schools, and I don’t know the reason for that.
Q. Were they discouraged from coming in any way?
A. Not to my knowledge.
Q. Were they not told of the difficulty getting them jobs
because of the discrimination in the job market?
Were they told that?
Yes.
We certainly didn’t tell them that.
The counselors didn’t tell them that?
No, sir.
. How do you know that? Were you present when coun-
selors met with the students?
A. Iwas on the counseling teams that visited.
Q. Would you agree with Superintendent French when
he said that that was the reason why blacks were not taken
into Patterson, because you couldn’t place them in jobs?
A. That may have been one of the reasons, but we certainly
didn’t tell students that, and we never discussed that in any
kind of a staff meeting in our building.
Q. Was it a problem that you had?
A. I don’t know that it was a problem because we never
had enough black students in those days to test it.
Q. Do you recall in 1958 at the time that the policy was
announced the policy changed adding of the extra grade at
Patterson making a statement that you were still working on
this area of job discrimination by employers and there is still
some areas where there are problems but it is being eliminated?
A. Yes, I can remember that.
Q. Do you remember making that statement?
A. I don’t remember making the statement, no, but I can
remember us working on that problem because there was
QOFroOror
367
some job discrimination, but we never had an opportunity to
test it to any extent.
MR. LUCAS: Your Honor, I have a clipping I would like
to exhibit to the witness and see if it refreshes his recollection.
2. sa that refresh your memory of that meeting?
. No.
X. TESTIMONY OF WALTER M. BAGWELL.
[R. I. 1780-1782, Vol. 18] Q. Would you state your name
please?
Walter M. Bagwell.
And where do you live, Mr. Bagwell?
5531 Wolfe Road, Dayton, Ohio.
And are you presently employed?
Yes, I am.
And where are you employed?
At the Sinclair Community College, Director of Physical
ry
POR >OPOPO>
And basically what do you do at Sinclair?
Responsible to the Board and coordinator between the
aa and the contractor for the construction of the col-
ege.
Q. And what is Sinclair?
A. It is a junior college.
Q. Is this a new building that was constructed?
A. It’s 4 new building.
Q. And before your position with Sinclair College, where
else were you employed?
2 : ey eyo by the Dayton Board of Education.
- And in what capacity were yo ] -
i ss ty you employed by the Day:
A. As Assistant Superintendent in char
ge of business.
THE COURT: In charge of what? ye
THE WITNESS: Business.
368
Q. And how long did you hold that position?
A. Iwas acting superintendent from June until November,
1953, as an appointee to the job in November of 1953 until
June of 1969.
Q. And is that your first association with the Dayton Board
of Education, June of ’53?
A. No. I came with the Board in June or July of ’52 as
assistant tq. Mr. Carlson who was the Business Manager.
Q. Yof were assistant, then, and took over as Business
Manager the following year?
A. Right.
Q. And as Business Manager, what were your duties or
what did your job involve? ;
A. Primarily I was responsible for the operation and main-
tence of the existing plant which included the cafeterias
maintenance and operation, for the planning and recommenda-
tion of architects in the construction of new buildings.
[R. I. 1783-1784, Vol. 18] Q. Could you tell us during
the period of time that you were with the Board what cri-
teria you used for site selection of new buildings?
A. Well, primarily the site selections were in the area
where the children were and, of course, along with that was
the economics of it. The schools work closely with the city
in locating their schools adjacent to playgrounds if they
happen to be in the same area where the students were
located or lived.
Q. Were there any other factors that you took into con-
sideration?
* A. Yes. All of the schools had to be within walking distance
which the Board had set up from their homes to the school
site, and this was normally the case. Transportation was not
provided for them unless it happened to be a hazardous situa-
tion for them such as highways that had no sidewalks or rail-
roads that had to be crossed.
369
Q. Now, you indicated that you were building the build-
ings where the children were. Did you take into consideration
where they may be?
A. Yes. We bought a couple of sites on the basis of antici-
pated enrollments on the basis of plans that had been sub-
mitted to the City Planning Board, and we bought sites for
those locations with the intent that if the development went
ahead, we would build schools there.
Q. How did you determine where the children were going
to be or may be?
A. From the plans and plats that were submitted to the
Planning Board, we received a copy of those for review to get
an idea of the layouts to see that there was adequate walk-
ways that would permit access from the plats by streets or
by dedicated easements that would lead to the schools.
[R. I. 1788, Vol. 18] Q. And where is Carlson located
again? :
A. Carlson is on the southern end of Gettysburg and
Germantown. It would be the west and north corner.
Q. And what were the considerations that went into lo-
cating that school there?
A. Well, it was the site size. It was economic. So we
had students who were across the street from Gettysburg,
across the street from Carlson. We had quite a development
going in the rear of Carlson School that abutted it. There
was a possibility that the Veterans Administration would dis-
pose of quite a bit of their land that was going into housing
projects, and at one time plans were set up, but they did
not crystallize. Part of the land was bought off or given to
the University of Dayton for their west campus. But quite
a bit of it did go into development.
Q. And does the University of Dayton still own that land?
A. They still own that land. They have some 75 acres
there, I believe.
370
[R. I. 1790-1797, Vol. 18] Q. The next school that we have
is Gardendale, and that is located where?
A. That’s Gardendale, and that —
Q. If you could, general locations, locating it for the rec-
ord, please?
A. It is west. On Western Avenue and Gettysburg. The
west side of Gettysburg and what would be the extension
of Western Avenue. Western Avenue wasn’t extended at that
time.
Q. And could you tell us what considerations went into
locating that school there?
A. Gardendale, one of the main considerations at the time
of building Gardendale was the school wanted to develop a
program to house all of its mentally retarded students who
were at that time being housed in Orville Wright, which was
on the opposite side of the city, and since all of those stu-
dents were transported to the site, it didn’t matter too much the
location of the school, since we transported them from all
parts of the county, or of the city district, and a number of
them came from out of the district. But the school was primari-
ly developed for the mentally retarded, and then there was
part of the Townview area in the back that was developing,
and so additional rooms were added to that schoo! in order to
make it some 20 to 23 rooms, I believe.
Q. Was there ever any consideration or any fact given
to the possible annexation of the school district into the
Townview area?
A. At one time there was a discussion of Townview coming
into the school district.
Townview would be where, what part?
A. Right at that location.
Q. Around here?
A. That’s right.
Q.
A.
52)
Which would be on the west of Gardendale?
Yes. It adjoins the Gardendale School, abuts up against
the school district.
—P
371
Q. How many rooms were constructed for the mentally
retarded?
A. I believe there were eight rooms which were self-
contained, that is, had their own toilet facilities, storage and
everything else, plus they had utilization of the gymnasium
facilities and the other special items, such as industrial arts,
home ec areas.
Q. Do you know why you had to place those children in a
school in the Dayton System?
A. I’m not sure. They had been with the school system
for quite some time. The Board had taken on that responsi-
bility. It may have been mandated by the State law, that we
maintain and take care of them.
Q. The next school that we have then is Hickorydale, and
that was built when?
A. Hickorydale was built in 1957, and that is south of the
Belle Haven area.
Q. And again to what part of the city?
A. That’s in the western part of the city. The northwest
part. It is between the Gettysburg and the Belle Haven area.
That school was also built adjacent to some 40 acres of city
park, and we have some 10 or 11 acres there that we developed.
And did you give us the year that that was —
1957, I believe it was.
That was the date of construction?
Yes.
And what other factors went into consideration of lo-
cating Hickorydale?
A. Well, the fact that students were there to relieve Belle
Haven. That was primarily it. That and the fact that it was
adjacent to the city location, but that area was developing all
the way to the north and south of it, all the way up to the
Hillcrest area and then going south toward what would be
England, Queens Avenue and those streets that were de-
veloped.
Q. The next school that we have is Jackson Primary, and
when was that built?
(OF Oro
372
Jackson Primary was built in 1960.
And that was’ —
On the same site as the Jackson Elementary.
And Jackson is located where?
It’s in the west side of the city, southwest part.
And why was it located where it was, on that site?
Well, all of our primary schools are on the same site
as the original building, the elementary part, and it would have
been a matter of having to go out and pick another site that
was out of the district, or not as centrally located. Many of
the students, in the primary schools, they were brought to
school by their older brothers and sisters who walked them
to school, and so this would have been another problem of
placing them in a different location. It was just an ideal
location to put it in.
Q. Was this located because of the students’ need there
again?
A. Yes. It shortened up the playground, which we were
limited in, because of the street locations and the industrial
site to the west and the railroad to the north, but we had made
an attempt earlier to try to save the play area by putting it
down in a certain corner of the site, but the long-range plans
of the city is to have Route 35 come through there, and so we
had to move it at the insistence of the city.
Q. That would be the extension of Route 35, and it is
now a four-lane highway on the eastern side of the city?
A. Right. It stopped at the river, or just beyond the river.
Q. And that is stopped as of now where? Where is it
stopped?
Well, it stops just beyond the interchange of 75 and 35.
In other words, somewhere right around here?
Right in that location.
In this location?
Right. .
And there was plans for extending 35 westward?
That's right. And it would come through down Home
>rO>rOoro>
~
rPOrOPO>
373
Avenue and that area, so it was the city’s plan at that time
that the possibility that the school would be in the wrong
location, and they wanted us to move it, so they asked that
we move it. So we redesigned it and relocated it.
Q. The next school that we have is Jefferson, Jefferson
Primary.
That was constructed when?
A. Jefferson Primary was constructed in 1967. That’s on
the same site — it’s in the Daytonview area and it —
Q. You will have to find exactly which part of the Dayton-
view area we are talking about.
A. The northwest area of the city. The immediate north-
west, if you want to call it that. Just north of Wolfe Creek,
which you have your pointer on there, and it would be Broad-
way — not Broadway — I’m not sure what would be the right
description of-it.
Q. This was located where the elementary school was?
A. That’s right. Located where the Jefferson Elementary
school is, which was built in 1915 or 1916.
Q. What year did you say this was constructed?
A. 1967.
Q. Now, what considerations went into locating this school]
there?
A. There was quite a bit of discussion held with the city
about the possibility of acquiring land at the lower part of
Jefferson District.
Q. Excuse me. Where would that have been?
A. That would have been south of the Jefferson School
site, down here near what would be the Ferguson-Broadway
area.
Q. South of the —
A. District.
Q. South of the present location?
A. Of the present location. It would be Oxford — some
five or six blocks south of it.
But the purpose of that was to — there was great need for
recreational area in that district because of the fast increase
374
in the number of students, and so the city had in their long-
range plans to acquire land, some eight to ten acres, near
Broadway and Riverview and the Ferguson area, and we talked
to them about the possibility of moving up their timetable
and acquiring land that we could have built a school on with
them, and we would acquire land along with their 10 acres,
and we would have a decent site and a decent play area,
because the present Jefferson site is kind of limited in area.
Q. We are still talking about this proposed area?
A. We wanted to build that school there, but there was
quite a bit of public discussion about it and the feeling was
that if we built the school there that since the trend of the
black movement was north, that we would take a great num-
ber of the blacks out of the Jefferson District and would whiten
up the Jefferson Elementary School. So this wouldn’t be the
thing to do, so the final.decision was to put the whole school
on the same site rather than put the primary school at the
lower level.
Q. Then this site was located at the present elementary
site?
A. Right. On the present elementary site. We acquired
some additional land there to try to relieve the loss of play
area, but that had been a slow process because they are large
homes and the development would have been extensive.
[R. I. 1812-1814, Vol. 18] Let’s get back to the schools.
The next school we have is Dunbar, and that was built when?
A. That was built in 1962, and that is on Rich Avenue
down here in the Miami Chapel area.
Q. And why was that built?
A. That was to relieve the Roosevelt area schooi, and there
was certainly in the early considerations of that school some
discussion to hold it or to build it along the Germantown
area and to eliminate a lot of the substandard housing in that
ait
375
area to try to put together a site of some 25 or 35 acres there,
but the cost involved and the time that would have been spent
in running down the absentee owners and vacating the streets
and what have you, to get a decent size would have been
prohibitive in cost, and then it came to our attention the land
of Dr. Washington who had the acreage not too far south of
it which we got 52 acres for quite considerably less and
which had all of the facilities except for the streets already
available; that is, sewer and water.
Q. The next school that we have is Meadowdale which is
located up on the same side as Meadowdale Elementary and
that was built when?
A. That was built in 1960.
Q. And what considerations went into locating that school?
A. Well, we acquired that land also along with the site to
build the elementary and the area was developing. I forgot
the name of the construction people, but we kept in close
touch with them and we stated the areas that we wanted to
use eventually for a high school and we acquired that. As a
matter of fact, I think the developer had given the city
something like three acres of ground and we used a park in
that area which the city threw in to the School Board to be
used as part of the site. That is our Fairview High School.
Q. Now, the next one we have is Patterson, and that’s a
co-operative school and that is located where?
That is in Downtown Dayton.
That was built when?
1952. That’s the co-op school.
And where is that located did you say?
That is at First and Sinclair.
And why was that located in that particular area?
That is where the old Patterson Parker High School
was built and it was expanded and we bought land adjacent
toit. Eventually we bought the whole block and expanded the
high school. The vocational school serves all of the districts.
Q. And finally the last one is Roth High School which is
out on the far, far west side.
POPP O >
376
A. That was built in 1959.
Q. What considerations went into that?
A. That was also a relief of high school students and to
serve them in that area. We at one time discussed building
the school on Third Street as a means of trying to get it
closer to transportation, but difficulties developed and we
found that land could be obtained in greater quantity and
much less price at Hoover Avenue and Elmhurst or the
Elmhurst extension, so we bought 30-some acres at that point
and built the school there.
Q. Now, there have been additions onto the existing build-
ings, have there not?
A. Right.
What considerations went into determining what ad-
ditions should be placed on buildings?
A. Well, most of the additions were to serve the young-
sters in their school district, and if the district increased in
size, then we just added the additions to the school and we
tried quite often to acquire additional ground to increase a
site if it were possible, but if we were to try to build in a
square, we would get into the problem of having a smaller
school size perhaps since the additions in themselves wouldn't
be worth putting a new school up * * °
[R. I. 1816, Vol. 18] Q. Mr. Bagwell, you came to the
system in 1952?
A. Right.
Q. Did you teach or do anything else in the school system
prior to this time?
A. I acted as Superintendent in charge of the building in-
spector for the City of Dayton prior to that.
Q. Are you familiar with the standards for minimum site
size recommended by the State for elementary schools?
A. Iknow what the minimums were. They used to say five
acres to start with and one acre for every hundred students.
Q. There is a formula?
A. Yes.
377
R. I. .
‘: ! eels ti Vol. 18] . Q. Are you also familiar with
cmiieiae endations for minimum sizes and maximum sizes of
ole rade that ma elementary school should have a
sO many students and should
— - certain number of students? eso eg ne
‘ ere are recommendations o» that Th
; ere .
sonal feelings about what makes a large school or sm i. h a
or ~~ school or bad school. eae
- What are the recom j ini
an element oo. oo for minimum size for
a : pin ne sure I could give you what the educators say
pet - 500 to 600 is a good school for the ele-
i wih sod ee yet = I would probably want to
90 to at the most if it were ib
re. oo it is not economically Ro ga seen
Pe ut you wouldn't go below five or six hundred for
te et pad high would you go for elementary?
: > ad my druthers, I would probably like to say f
r six hundred. With hindsight, I would say — ca
* thle et ge ever sig with a problem where you
it not to to t i i
mee aa e size that it eventually went to
A. idn’
aad < nae t have too much to do with the sizes that the
0. The recommendations sometimes were com-
oy — a year and train them.
} i i
you make recommendations in connection with
the cost of maint
enance w
sizes? hen the schools got over certain
378
A. Yes. I made recommendations, but it was —
information that in the larger schools — well, in fact, in a
cases, the larger the school, usually you had a greater per-
centage of vandalism at it. |
Q. Did you not in fact recommend against the location
of certain schools and placing of units in particular seen
because you know what would happen in terms of enrollmen
and impaction in that area?
A. I think the one that I readily recall I was against the
location of was the Jefferson Primary School.
[R. I. 1824-1826, Vol. 18] Q. Asa preliminary question,
were you around when the schools were opened and did you
see to it that everything was ready to start operation?
A. Right. a
Q. Did you attend the dedication ceremonies
?
A. Not when I could get out of them .
Q. But you were familiar and checked with the school
when it was in operation to make sure it was within the
warranties?
A. Right.
Q. po ies your attention now to the Belle Haven School
which was in the northwest area —
A. Right.
Q. yo you aware that that school opened with a 100
ent white faculty?
ge Right, although I would assume it would be because
it was in that neighborhood at that time.
Q. Now, the Carlson School, that opened with a 100 per-
cent black faculty, did it not? .
Well, if it didn’t, it was close to it.
Eastmont, did it open with a 100 percent white faculty?
Right.
ck did it open with a 100 percent black faculty?
No, white.
rOPrPOr
379
Q. I am sorry, 100 percent white faculty, and that’s the
one that you say a developer offered the School Board space,
the free land if they would build a school in that area; correct?
A. He offered the land that they could build a school on
it if it would fit the needs of the school area; that is, if it was
located in the site that would be adjacent to the youngsters.
Q. Mr. Bagwell, are you familiar with the advertising for
new subdivisions where they say new school to be built in
this area and new church, new shopping center?
A. Yes.
Q. The developer in this case gave you how many acres?
A. Twelve acres, I believe.
Q. And when that school opened, it was a white school or
black school?
A. White school.
Q. And white faculty?
A. White faculty.
THE COURT: Mr. Lucas, I will permit you to pursue
this, it is cross-examination. I would observe that this issue
has been really well-developed in this case. I am completely
familiar with the position that the plaintiffs have taken, and
you have well-documented it. I think there is no question
that there were schools staffed by white faculties and schools
staffed by black faculties, but it is also my understanding and
it has been well documented that at a point in time this was
specifically changed. Now, referring to my original state-
ment, I will permit you to go forward. I really don’t see
the pertinence at this point in the case of spending time on
that issue.
MR.LUCAS: Your Honor, as understand, the evidence was
presented that the schools were built where children were
and we understand arguments flow from that and we are
trying to show the school was identified wherever it was built
by its faculty.
THE COURT: All right.
380
[R. I. 1828-1829, Vol. 18] Q. The Hickorydale, where is
that located? Is that to the west?
A. That’s in the west and northwest areas, just south of
Belle Haven School District. It is along the Wolfe Creek side.
Q. How large a school is that?
A. I don’t know what it is at this point. It was at one
time something like 30 or 35 classrooms, so it could have been
seven or eight or nine-hundred.
Q. In 1972 enrollment indicates that there are only 475
pupils in that school. Was there a fire or anything else that
happened to the building?
A. No. One of the things that might have affected the
enrollment in many of these schools is the fact that they are
getting into programs that will take more of the space for any
number of things. It could have been reduced classroom size.
When I started with the system there was 35 in the class-
room. That’s the average. And over the years they reduced
it down to something less than 30, 28, 27, in that area, which
would affect the kind of enrollment you have also.
But they have also several programs housing some of the
school areas. Part of the area may have been taken up by
development of the cafeterias, which until after I left the
school system, we did not have cafeterias except in the high
schools and in the special schools.
Q. Do you know whether any of that took place in
Hickorydale?
A. I couldn’t tell you that.
Q. You don’t know?
A. No. I know a cafeteria took part of it, but that may
have been just the gymnasium and some other areas.
Q. Were there 35 classrooms there?
A. I don't know that.
Hickorydale?
Q. Yes.
A. It says 14 — no.
Q. Pardon?
381
A. Fourteen classroom, and then eight, so it’s 22.
4 I. 1848, Vol. 18] A. Right.
- And so instead you built additions i
ti 32 5 sina particular area
hd a "gen the problem of boundary adjustment,
Q. Would you agree that in eff
Id ect then, when you add —
put a addition to a school, that as far as that obit is con-
cerned, you determine the boundaries and they are coextensive
with the origi ;
aaa boundaries of the school? Is that a fair
A. I would say so.
Q. Pardon?
A. Yes.
Q. All right. So that if a school i
ol is already 100 percent
ye and you are making an addition to that seid a
in effect have determined the boundaries to be that creatin
a hundred percent black school unit? ,
A. That's right, in most cases it was.
Q. Allright. And for those primaries that opened a hun-
dred percent black or white, th
ves alll thieee tenus attache? , the same would be true, although
A. Right.
em bt ? tee i Vol. 18] A. Right. I would assume any-
& 1 would say on the percentages of the faculty would
be — I i
vl would tend to agree with you because I don’t know
aes Riad lee For being in the area it was and the
policy the Board followed, I would assume there would be
black student body and black staff. :
Q. Did the Roth and Meadowdale planning go on at
approximately th i
one y the same time? Meadowdale was opened
382
A. About 10 or 12 years ago. Let’s see, Meadowdale here
is listed as 1960.
Q. And Roth was opened when?
A. In 1959, the year before, so construction would have
been underway and Meadowdale and Roth and Dunbar prob-
ably would all have some construction or planning going on
at the same time.
And Belmont was what year?
1952-53, that year.
Was there an addition to Belmont High School?
Yes, there was.
What year?
Probably 1966, somewhere in there.
POrPOre
Would you hand the witness Exhibit C?
Would you look under the school Shoup Mill, please?
All right.
. And for the year 1968-69, how many students were
enrolled at that school?
A. 365.
Q. And under Valerie for the year 1969-70, how many
were enrolled in that school?
A. 1969-70, 486.
Q. Then, going to one other question that was asked you
on this transportation across the railroad tracks, you indicated
that that was a matter of no access there.
"A. That’s right. I believe that I can readily recall it was
a Grant School District in which there were students east of
the railroad and the Board used to transport them back and
forth, but when the access was developed across there, that
transportation was eliminated.
OFrO”
383
Y. TESTIMONY OF RALPH CURK.
[R. I. 1864-1879, Vol. 18] Q. Could you give us your
name, sir?
Ralph Curk.
Where do you live?
7210 Noretta Court.
What is your present occupation, Mr. Curk?
Retired.
And from what are you retired?
Director of Research of the Dayton Board of Education.
. (Can you give us the history of your association with the
Dayton School System as a student teacher or member of the
Administration?
A. Well, it started as kindergarten student at Edison School
through seventh grade at Edison, grade 8 at Weaver, grade 9
at Parker, graduated from Stivers High School, got my Bachelor
of Science Degree at Indiana Central University and came
back to Dayton as a teacher in 1928. I was a teacher at Clear-
view for three years and went to Roosevelt for three years,
was Director of Research for 18 years, and retired in
June, 1968.
Q. What subject matter did you teach at Roosevelt, Mr.
Curk?
A. General science and chemistry.
Q. Were you involved in any administrative duties in addi-
tion to your teaching duties there?
A. Well, I wouldn’t consider them administrative. I was
a student counselor.
Q. When did you leave Roosevelt and go to the Central
Office as Director of Research?
A. 1950.
Q. And when did you retire from that position?
A. 1968.
. Can you tell us what your duties were as Director of
Research for the Dayton School System?
A. Well, primarily it had to do with the budget, estimating
OPrOroro>
384
the tax duplicate and the financial revenues, projecting the
expenditures over a period of years anticipating the size of
operating levies that the School Board might have to ask the
voters to supply, the analysis of the census, projecting school
enrollments, projecting the need for a staff and, well, I suppose
anything financial eventually found its way over my desk
whether I was directly involved in it or indirectly involved in it.
‘2. What individuals and positions comprised the Execu-
tive Staff of the Dayton School Administration during this
18-year period that you were associated with them?
A. We were very fortunate in our Superintendent as being
a true executive, and he would have staff meetings consisting
of the three Assistant Superintendents, the Director of Pupil
Personnel, the Clerk Treasurer, and myself on the staff.
Q. Can you identify the individuals that filled the staff
positions during that 18-year period?
A. The Assistant Superintendent in charge of curriculum
was Dr. Howard Boda, the Assistant Superintendent in charge
of Staff Personnel was Homer Royer, and when I first went
down, the Assistant Superintendent in charge of Business was
Frank Carlson and replaced by Mason Bagwell, and the Di-
rector of Pupil Personnel was Harold Armstrong who later
retired and was replaced by Mr. Goff.
Q. When did Mr. Goff assume that position?
A. I think it was in 1964.
Q. Does that cover the group?
A. And did I mention the Clerk Treasurer? He always
sat in on the staff meeting.
Q. Who was the Superintendent of the System during this
period?
A. Mr. Robert French.
Q. Is he associated with the School System at the present
time?
A. He is a member of the Board of Education?
Q. As part of your administrative duties during this 18-
year period, were you consulted with respect to the drawing
of attendance and optional zones, Mr. Curk?
385
A. Quite often Mr. Armstrong would have a problem, and
since I was involved in anticipating enrollments in various
areas, he would come up and consult with me. We would go
out and drive the area, examine it for hazards, accessibility,
distance, and get a feel for the problems as presented to him
at that time. Then, he would from that observation and dis-
cussion between he and I come up with a recommendation
to the staff, and then in staff meeting we would have a chance
to tear it apart and cuss and discuss it and then Mr. French
along with Mr. Armstrong would have the recommendation
for the Board. .
Q. Did your same practice continue after Mr. Armstrong
was replaced by Dr. Goff in 1964?
A. Not to the same extent, but the inter-offce communi-
cation of these problems and their recommendation, I was
always notified of that.
Q. Were you retained by the Dayton Board of Education
in connection with this lawsuit, Mr. Curk?
A. Yes, sir.
Q. And what have you done in connection with this case?
A. Well, after four and a half years, I had forgotten quite
a bit. So, in order to refamiliarize myself with some of the
things that happened in those years, I went back to the Board
and, of course, after four and half years my files were defunct.
So I went down to the attendance department and asked for
copies of the monthly enrollment in October. The first two
weeks, and I understand now it is the first week in October,
is used as a basis of reporting to the State Department for the
foundation program. So, I got copies of the enrollment from,
I think it is, 1941, and I didn’t have time to complete it, but
it did give me the attendance pattern of the schools. I went
over the exhibit that Mr. Krebs supplied for me that had the
building information on it and also went to the vault where
all the minutes of the Board of Education were kept, and I
used the index to look up items of schools that I had forgotten
about, boundaries and boundary changes and things of that
386
nature that were a matter of record in the Board of Education
minutes to refresh my memory.
Q. Now, your deposition was taken in this case on Octo-
ber 24, was it not? :
A. I think that was the date.
Q. At that time had you completed your study and analysis
that you have described to us?
A. I have refamiliarized myself with a lot more since then.
Q. How long before your deposition had you actually been
retained in this case?
A. I don’t remember. I know the Board met on Thursday
night and it was at that meeting that I was retained and Mr.
Krebs called me to come down on Friday, and he outlined
schedually what he would like for me to do to assist in this
matter, and I think it was the following Tuesday. So, I
probably had about a week and two days since to go back
over some of the things that had happened while I was down
there before the deposition.
Q. During your period of tenure with the Dayton School
System, what was the practice of the systeza with respect to
distribution of supplies to the various schools?
A. Well, it is always on a per pupil basis. Again, I used
the October report, the special report to determine the en-
rollment in each individual school, the kindergarten enroll-
ment, the special education enrollment, the industrial arts
enrollment, the home economics enrollment and all of that,
and each one of those had a specific rate or amount of money
that was multiplied by the number of pupils in the particular
building, and that was compiled and given to the purchasing
department.
Q. You may complete your answer, Mr. Curk.
A. I need to have part of it read back to see where I was.
A. And the purchasing department would notify the
principal or the responsible person in the representative build-
ings and that would be the basis for expenditure of the next
year’s budget.
387
Q. All right. Was the practice the same with respect to
each school in the system?
A. Yes, sir.
Q. Were there ever any junior high schools in the Dayton
School System?
A. The junior high program started, oh, in the middle or
late twenties, I think maybe 1925 or 1967, and then in the
middle or late thirties Dr. Oley from the Ohio State University
headed up a survey commission. I forget the title of it, but
the sum and substance and result of that was a recommendation
that the Dayton Board of Education eliminate its junior high
school and go from a 1 through 8 and 9 through 12 organi-
zation.
Q. Was that recommendation accepted?
A. It was accepted and the junior high school was elim-
inated in September 1940.
Q. After the elimination of the junior high school in 1940
were there ever instances where 7th and 8th graders were
assigned to specific high schools?
A. Quite often.
Q. What were the reasons for that and when did it occur?
A. The reasons for it would be overcrowding in the ele-
mentary buildings, and it would be a temporary condition
until arrangements could be made to provide classroom space
to accommodate them in their own building or maybe a new
building constructed.
Q. Can you tell me what high schools in the system were
affected by this?
A. Well, Dunbar, Roosevelt, Kiser, Colonel White, and
Stivers. I am not sure of Belmont and Wilbur Wright, whether
they ever had 8th graders or 7th and 8th graders. I would
have to check my records on that, and I don’t know if they
are complete enough to give me that information.
Q. There has been some evidence here concerning assign-
ment of the 7th and 8th graders from Garfield or Willard
Schools to Dunbar in the early ’40’s, I believe 1942. Do you
388
have any records to indicate what the situation was on
assignment of students throughout the system at that time?
A. Well, when I took my attendance patterns and copied
them off from the child accounting record, and that was one
of the reasons I did it, to get a feel for this, and there was
evidence I think, if my memory serves me correctly, that in
1942, the year in question, Roosevelt and Kiser, I think,
either Kiser or Colonel White, I think there are two other
schools other than Dunbar that housed 8th graders or 7th
and 8th graders.
Q. Mr. Curk, with respect to Garfield, or Willard students
who received temporary assignments in the 7th or 8th grade
to Dunbar High School, can you tell us whether those students
retained the option of going on to Dunbar or Roosevelt High
School after completing their 8th grade education?
A. Yes, they would have.
Q. Are you familiar, Mr. Curk, with the boundary changes
affecting Garfield, Willard, and Wogaman that were adopted
by the Board in December of 1952?
A. Yes, I am.
Q. And can you tell us the circumstances leading up to
those changes and what was done?
A. Iam not sure whether it is 1952 or 1953 or when it was,
but Mr. French called Representative leaders of the various
west side organizations in for a conference, and he explained
to them what we had planned to do in our building program
to provide school facilities for the mushrooming school en-
rollment and said that we can do one of two things. We can
enlarge Garfield and Willard the same as we are doing for
all the other buildings in the city, or we can shrink those
boundaries and not add onto those buildings to take care of
the increased density of population would allow some of the
students in the periphery of those respective districts to attend
integrated school systems, such school districts as Edison,
Irving, and Whittier and so on.
* °
ni ot rt
389
Q. And what plan was actually adopted by the Board
that you referred to?
A. Well, I think it was Plan B they recognized the oppor-
tunity and elected Plan B, and that was what was recom-
mended to the Board, and that was the plan adopted.
Q. And just so the record will be clear, which plan was
the B plan?
A. That was to shrink the boundaries around Garfield and
Willard, and add what was taken away to the peripheral
schools, to increase the enrollment pattern at the integrated
schools.
Q. In the establishment of the Roth High School attend-
ance zone in 1959, was race taken into consideration?
A. No, sir, it was not,
Q. At the time the attendance zone was established, were
you asked to make any survey as to the race of the prospective
students at Roth High School?
A. I evidently was. I don’t remember the circumstances.
But I was shown a report that I had made and it was a guessti-
mate more than anything else, because looking from the map
and estimating that a hundred percent of the school would be
feeding into Roth, and a hundred percent of this school, or 75
percent, or 80 percent, or 20 percent, whatever the case might
be, and then applying that percentage to the guess of the
enrollment pattern of the respective schools involved, I came
up with an estimate that I thought that the Roth High School
might open with a certain percentage of black students.
Q. And in addition to your check of the races of potential
students in connection with Roth, were you also requested to
compile information concerning racial distributions of stu-
dents in the year before the Garfield-Willard and Wogaman
boundary changes?
A. There again is one that I have forgotten. In the day
of my deposition, I think I was asked a similar question, and
I said definitely not. That day at lunch Mr. Krebs just showed
me an exhibit that he had received, and I said I wonder
390
where that came from, because the way it is dated I would
have done it, and I don’t remember it.
And then later on, at the Board of Education offices, a
member of the staff said here’s a little goodie that you might
remember, there’s a worksheet, so I will have to admit that I
did prepare the study and while the complete report wasn’t
on the exhibit, it was just excerpts from it, I suppose that’s all
that was left, but it seems for, I think it was a five-year period,
starting in 1947 and ending in ’51-’52, at that time the princi-
pals reported at the end of the year — one of the questions
on the principals’ report to the State Department was the
number of Negros enrolled in that particular school that par-
ticular year.
Now, I have inferred from the reading of the excerpts that
that evidently was my source of information, and I think I
commented at the time that it was not reliable because it
didn’t represent the actual black enrollment at any one day,
but the gross enrollment for that particular school year.
So that part of my deposition to the counsel, To Mr.
Diamond, I was in error, but I was not aware of it at the time.
Q. Except for these isolated incidents, in 1952, and then
in connection with the Roth guesstimate in 1959, did you ever
compile or maintain any statistics concerning the race of
students in the system during your 18 years as Director of
Research?
A. No. We were not conscious of that, at least I wasn’t,
because at that time it was madatory that we take the census
enumeration each May for all of the school-aged children from
five through seventeen.
Well, we asked our census enumerators to include anybody
born in May at the time that they took the house to house
contact, and so we had it from birth through seventeen.
The only information that involved us too much in our
projected enrollment figures was the number of parochial
students.
Now, we were allowed to ask — the enumerators were al-
391
lowed to ask if they were going to send their children to
parochial schools or to public schools.
So that final tabulation for each school district would indi-
cate to me the number that were attending public schools and
the number attending parochial schools, and that the the inti-
mation that I used to develop the survival rate or experience
formula for each school district in the projected enrollment.
Race was not involved.
Q. Did you have anything to do with the Ohio Civil Rights
Commission student surveys that were made in 1963 and
subsequent years?
A. No, I did not.
Q. Except for the 1952 attempt to provide more interracial
experiences by shrinking the boundaries of certain black ele-
mentary schools, did the race of potential students ever play
any role in the setting of attendance or optional zones in the
Dayton School System?
A. No, sir, it did not.
Q. What factors were taken into consideration in fixing
attendance and optional zones?
A. Well, I suppose the prime factor would be availability
of space and then the next would be the distance factor. Any
hazards that would be present, going to and from school, and
accessibility.
I think those four would be the major factors that we took
into consideration.
[R. I. 1882-1897, Vol. 18] Q. All right. Let’s move to
this eastward path. The next one we would encounter would
be the Roosevelt-Colonel White optional area, would it not?
A. That's right. 7
Q. Most of that option was originally established in 1951,
as I understand it, is that correct?
A. Yes. It was a change in the original high school
boundary between the Fairview-White complex and Roose-
velt. The original boundary was at Oxford Avenue, extending
392
from Salem over to a point west of Philadelphia. And “0
this optional area in 1951 came along and went from iene
to Lexington to Grand and Superior. So there are t -
blocks north and south that extended from Salem Avenue to
Rosedale.
Salem Avenue on the east side?
That’s right.
And can you give me the other one?
Superior Avenue on the south.
. Allright. This would be Superior Avenue running east-
est to what is now the complete area?
ok I would assume that is Superior. That is the general
location of it, yes, sir.
Q. All right. Then it went where?
A. To Rosedale.
Q. All right.
A. And then south on Rosedale to Riverview. Just one line
there. .
Q. And then where on Riverview? | ae
A. And then west and northwest on Riverview to I t in
it’s pretty close to what used to be called Bessie Little Bridge,
or Alcott Avenue came down there, so the extension of Alcott
to Wolfe Creek, and then up to Athens, north to Athens, and
then east on Athens to Philadelphia, south on Philadelphia to
Oxford, and east on Oxford to point of beginning. ;
Q. In what attendance zonc had that area been prior to the
creation of this option in 1951?
A. Roosevelt. Has
Q. How long had it been in Roosevelt district?
A. Well, the original was 1940. This is ’51. It would be
Bo was the reason for setting up the optional zone
in 1951?
A. Well, this was a little unusual. /
If you will remember, one of our factors in setting up
OFroreo
393
boundaries was distance, and here we are attempting to have
a point equidistant from one campus to a split campus.
So at the time that was done, they had to consider both of
the distance to the Colonel White area, which housed 9th
and 10th grades, and also the distance to the Fairview build-
ing, which housed 11th and 12th grades.
So that was a little difficult to do.
And then as the transportation pattern and city transit
changed and we were in the process of our building program
to give relief to various buildings, they decided to make this
an optional area, and while doing so they had to make it as
fair for those 9th and 10th graders, and also include the 11th
and 12th graders. So that was the reason, I think, for the
extension, clear to the west side.
Because as you know, as it goes west, the accessibility to
Fairview increases because it is directly up Philadelphia Drive,
and I don’t know exactly where the gasoline bus made its loop.
I think it was around Cornell, but it might have been far-
ther north, up around Otterbein. I’m not sure.
But there was a gasoline bus which facilitated transporta-
tion on Philadelphia, the same as the city transit change trans-
portation on Salem Avenue.
THE COURT: Mr. Curk, why should this not have been
transferred to the Colonel White-Fairview District? Why
make it an optional zone?
THE WITNESS: Well, Your Honor, I think it dates back
to — when 1940 came along, prior to that time to my know-
ledge there were no high school boundaries. For years any-
body in Dayton had a choice between Steel and Stivers. And
then Roosevelt came along in the ’20’s and I’m not aware of
any hard lines being drawn in the ’20’s. So we had a choice
of three high schools.
And then when the junior high school program was elim-
inated and some of these junior high school buildings were
converted to high school complexes, it was decided then to
make hard lines between these high schools that were then
394
in existence, and I think that is the first time they ever
attempted it, and they had quite a period of resisting change.
THE COURT: What date was this that these lines were
drawn?
THE WITNESS: 1940.
THE COURT: This is now 11 years later?
THE WITNESS: Yes. .
THE COURT: Why would there be an optional zone
created 11 years after you have set up boundary lines?
THE WITNESS: Well, the original lines was again an
attempt, I think, to equate the distance between these two
complexes and Roosevelt, and if you looked at the eastern
side of this optional zone and compare it with Fairview, it
is farther, much farther to Fairview than it is to Roosevelt,
but yet if you compare the distance from that eastern line
to Colonel White, it is much closer than it is to Roosevelt.
And then as you go westward, the distance factor changes.
So whether that is sufficient reason for not doing it, Your
Honor, I don’t know but I’m positive that that was part of
the consideration.
THE COURT: Do you have any record, or is there any
record of requests that this be made optional for those students
who would otherwise go to Roosevelt?
THE WITNESS: Yes, it is a matter of record.
You sec, your Honor, I just happened to live three doors
south of Oxford when I was teaching at Roosevelt, when this
change was made, and just two doors from me there was a
child who tried to give a false address so that he would be
in the Fairview District instead of the Roosevelt District, and
that was quite common. There was a great deal of pressure
and requests to the Board to change the boundaries to suit
one or more of their conveniences. And this was resisted, as
I say, until 1951, when the transportation pattern, the city
transit pattern had changed, and the accessibility was a
factor that had greater impact, I think, on the decision than
the lack of it before.
395
THE COURT: And if I understand your answer correctly,
this is really a matter of convenience and only that?
THE WITNESS: I think it was, sir, yes, sir.
THE COURT: Was there anything else?
THE WITNESS: To my knowledge, no, nothing else was
considered.
THE COURT: No. I’m not talking of the convenience of
the students only. It was the convenience of the parents and
convenience of the Board, is that correct?
THE WITNESS: Well, I don’t know how to answer con-
venience to the Board.
THE COURT: Well, if there were pressures both ways, this
is a political body, and political bodies are amenable to pres-
sure.
THE WITNESS: So if they succumb, well, it is a greater
convenience to them, I would agree.
THE COURT: You may proceed, Mr. Greer.
Q. In setting up this optional area in 1951, or any of the
other optional areas, setting them up in this manner instead of
changing hard boundaries, were previous patterns of attend-
ance taken into consideration?
A. Well, I think that’s generally true and accepted, that
once a child has been in a school, the older children coming
along have a tendency to want to attend the same school.
Also, if they are attending an elementary school that happens
to be divided between two high schools, and their friends are
going to one and they are going to another, there is a reluctance
to accept that. So in that context, I think you are correct. The
attendance pattern does influence some of these desires.
Q. Now, if we leave out Fairview High School for a minute
and just consider access from this area to Roosevelt or to
Colonel White, what can you tell us about the physical charac-
teristics of the area as they reflect on access to those two
schools?
A. Well, we had a bridge across Wolf Creek at Summit
Street. There is a bridge across Wolf Creek at Rosedale, which
is in about the center of the optional area, and there is a bridge
396
across Wolf Creek at, as I referred to, the end of Riverview,
the Bessie Little Bridge.
So those three streets would have to be their main approaches
from this area north of Little Creek to Rosedale.
Now, Rosedale I am very familiar with because that was my
path when I taught at Roosevelt.
On the west side of Rosedale, it was occupied by the Dayton
Tire and Rubber Company. Their plant was not adjacent to
Rosedale, and in the years before they expanded, this was just
an open field and not utilized as a parking lot as it is now.
The area on the east side of Rosedale, between the railroad
and Western Avenue, was sort of a holding yard for the packing
company in there that was located at the corner of Rosedale and
Western, and then the Pennsylvania Railroad, was directly, oh,
I would say within one city block south of Riverview, and on
the west side it served the Dayton Tire and Rubber Company
and its switch yards, on the east side there were a number of
coal yards between the railroad and Riverview, and down close
to Summit Street was a large company, Simmons, Board and
White. .
Does that answer your question? Is that what you have in
mind?
Q. That answers me on the southern end.
What physical factors are there that would have some bear-
ing on access at the north, as far as students in that area going
up towards Colonel White?
A. Well, I don’t know of any.
Of course, Salem Avenue was the main artery through there,
but there were many connecting streets that would allow these
people to move north to Colonel White, many connecting
streets and cross streets.
I don’t think there were any physical barriers on the north
side, between this area and Colonel White.
Q. As I understand it, the problem really was not access to
Colonel White, but following on to Fairview High School after
the completion of Colonel White.
397
A. There again, it was a distance factor that was added onto
it.
Q. And you indicated about the change in the patterns
of the City Transit Bus Company.
What, in 1951, were the public transportation patterns from
this area to the vicinity of Fairview High School?
A. Well, I don’t know the exact year that it changed, but
in the early years the City Transit had a line that crossed the
Main Street bridge, the Miami River, Main Street bridge,
turned up River Road, up Forest Grove, up Forest Grove to
Neil, Five Oaks, went up Five Oaks, or down Five Oaks, over
to Salem Avenue, and up Salem to Catauqua Drive where it
made its loop.
And then there was a line on Salem Avenue —
Q. First of all, the east end of this optional zone was on
Salem Avenue, is that right?
A. That's correct, and this bus facility going up to Colonel
White or past — relatively past Colonel White went out to
Fairview, would come out on Salem, maybe four or five blocks
north of Oxford Avenue, before it hit Salem.
But there was another line on Salem Avenue that looped
around Salem and north, which was south of the northern
part of this boundary, and then those lines were consolidated,
and the line that traversed Salem Avenue from north-southward
was combined with the other line and went out to Catauqua,
up Catauqua, and as I understand it, I think it now loops
around Catauqua, Hillcrest, Philadelphia and back on Salem.
Q. All right. If we look to the west side of the option,
which went down to Riverview, what was its access situation?
A. Well, as I mentioned, this gasoline bus — and of course,
I was familiar with the bus coming down Philadelphia and
going down Riverview to Salem Avenue, and then crossing
the bridge there and going on downtown, but the exact north-
ern culmination or loop of that gasoline bus I am not quite
sure of, whether it is on Otterbein or where it was.
Q. What about the access from this area in 1951 by public
transportation to Roosevelt?
398
A. Well, there was no crosstown public transportation. If
the students elected to use public transportation to get to
Roosevelt, they would have to use either the Salem Avenue line
or the gasoline bus, go downtown and transfer to the Third
Street line and go west on Third Street to Roosevelt.
Q. Now, this optional area was later expanded to its present
form, was it not?
A. Yes, sir.
Q. When was that done, why, and what was involved?
A. Well, by 1959, I think, was the first graduating class
from Colonel White. So the Fairview-White complex was
divided, I think, in 1955, 54 or °55.
Q. If you want to refer to any notes that you may have,
why feel free to do so, Mr. Curk.
A. Well, if that date is important, I'll try to do it.
My note here says 12-4-58, when the boundary line was
changed.
So the concept of the four-year high school at Fairview and
the four year high school at Colonel White would be effective
in the ’57-58 school year, when Colonel White would have its
first juniors and then in ’58-59 it had its first seniors and first
graduating class.
THE COURT: Mr. Curk, this has been referred to as the
Colonel White-Roosevelt optional zone. Do I understand that
after 1958 this was a three-way optional zone, also including
Fairview, or was it limited to Colonel White and Roosevelt?
THE WITNESS: No. It was a three-way option, between
Colonel White and Fairview — I mean Colonel White and
Roosevelt, and Fairview and Roosevelt.
The line between the Fairview and Colonel White was
drawn so that Philadelphia, the lower part of Philadelphia, was
still a part of Colonel White area, and it came up to, I think it
was Otterbein Avenue, and then extended east.
THE COURT: I’m not interested really in the specifics.
All I want to know is do I understand that any student living
in that area could have chosen one of those three schools?
399
THE WITNESS: No. They could have chosen Fairview
and Roosevelt, on the west side.
THE COURT: Do I understand that this is really two
optional areas?
THE WITNESS: Two optional areas.
THE COURT: All right. Roosevelt versus Fairview and
Roosevelt versus Colonel White. It was not a three-way
option?
THE WITNESS: Not a three-way option, no.
Q. What was involved in the change that was made along
about the time that Colonel White became a four-year high
school?
A. Well, the area bounded by the east by Salem Avenue
was moved southward from Superior to Riverview and on down
to Wolfe Creek.
Now, Superior to Riverview is a long square, and Riverview
to Wolf Creek is a short square and that extended over to
Rosedale, which was the beginning of the former optional area.
So it was bounded on the east by Salem Avenue, on the west
by Rosedale, on the north by Superior, and on the south by
Willard.
[R. I. 1898-1899, Vol. 18] Q. Let’s proceed on east to the
Kiser-Colonel White option, which I understand was estab-
lished in 1962. What can you tell us concerning that optional
area?
A. My memory is faulty there, Mr. Greer. I don’t remem-
ber that. I’m sure that it was considered at staff, brought up
at Staff and discussed, but I have no recollection of it at all.
Q. In reviewing the records of the Board, what can you
tell us about the racial characteristics of the students at each
of those schools in 1962, when the option was created?
A. Well, we have no record for 1962. The closest record
we have would be the 1963 Ohio Survey and at that time Kiser
was 2.7 and Colonel White was 1.1 percent black.
400
Q. And what can you tell us about the capacities of the
two schools at the time this option was created?
A. Kiser was one of those schools that was a combination
junior high school-high school. In other words, at one time
it housed the 7th, 8th, 9th, 10th and 11th grades, back in the
mid-thirties and then it was converted to a high school and its
attendance zone traditionally has not been as densely popu-
lated as the other attendance zones or the other high schools
in the city.
So I would assume that the capacity of Kiser, there was
always available space there, and enrollment would be low after
the junior high days.
Q. Was this optional zone taken out of the old Kiser at-
tendance zone or out of the old Colonel White attendance
zone?
A. Out of the Colonel White attendance zone.
Q. All right. Let’s move on then to the last of the four
high school optional areas, which is an area on the east side of
Dayton between Wilbur Wright and Belmont, is it not?
[R. I. 1904-1918, Vol. 19] Let’s start with the optional area
that exists between Belle Haven School and Ft. McKinley
School.
Can you tell us when that was created and why it was not
created with hard lines?
A. It was created in 1955, and there were two factors in-
volved in that. One was accessibility and the other was
hazards.
Q. What were the accessibility and hazard factors involved?
A. Well, the streets could not have openings to the east
to Salem Aveune which would involve the accessibility, and,
of course, Salem Avenue is a major artery and would offer a
hardship factor or hazard factor.
Q. The next optional area if we start at this same end of
401
the map and work our way east would be the two optional
areas that presently exist between Residence Park and Jane
Addams. Can you tell us when they were created and why
they weren’t drawn with hard lines?
A. In September of 1959, the large one in particular, the
entrance to this residential area is off of Hoover Avenue and
had no access to the south to Jane Addams School, and in
order to exit from this area, they are actually closer to
Residence Park before they can continue on their way to
Jane Addams, so it is an accessibility factor. The little one
square block is about as equadistant as you can get.
Q. As to the Belle Haven-Ft. McKinley and the larger Jane
Addams Residence Park optional areas, was there any consid-
eration given to potential development?
A. Well, I think the way districts were drawn was with
anticipation of future residential development to open up
accessibility, and after that had materialized, it would logically
belong in that particular attendance zone.
Q. Do you know whether the development that was antici-
pated in those small areas actually has come about?
A. Well, to my knowledge, neither one had developed to
the point in the Belle Haven-Ft. McKinley, to the east of Ft.
McKinley or to the south to Jane Addams.
Q. Going further east, then, to the next optional area which
is an optional area between Westwood Elementary School and
Jackson Elementary, can you tell us when that option was
created and why it was drawn other than by hard lines?
A. That was in 1952, and again the area is about as equa-
distant as you can get between Jackson and Westwood, and it
was changed to an option area because of the hazard of the
young children crossing Third Street which is a main east-west
artery through the city, carrying not only the city traffic, but
U. S. 35 traffic.
Q. Was there anything distinctive about the way that op-
tion operated with respect to classes in either school?
A. Yes. This was an unusual situation because of the
402
hazard. It developed that in 1952, the first year that it was in
operation, it involved only kindergarten through grade 3. Then,
each subsequent year another grade level was added. In other
words, the third grader that had optioned to Westwood would
remain there for the fourth grade and the following year for
the fifth grade and so on, so it was progressive upward by
grade level in successive years.
Q. Which way did the option run?
A. It was originally part of Jackson and was optioned to
Westwood and I think the records from the Board minutes will
show that later on it was changed and made a part of West-
wood with an option to Jackson. :
Q. Continuing east through the city and crossing the river,
the next one we come to is an optional area between Lincoln
and Horace Mann Elementary Schools, is it not?
A. Yes. That area was made optional in 1957 and again
by the request of parents, and it probably would be farther
to Horace Mann than to Lincoln, but yet it is an area right at
the intersection of Wayne and Wilmington Avenue, and Wil-
mington Avenue would be a direct route to Horace Mann.
To get to Lincoln, they would have to wind in and out and
turn course, so directness and the fact it was practically equa-
distant would be involved.
Q. The next optional area as we move east is between
Cleveland and Belmont Schools, is it not?
A. Yes. That is a triangular effect. It is an area between
Watervalete on the south and Wayne Avenue on the north,
and Watervalete probably has greater traffic than Wayne Ave-
nue, but they were trying to encourage the youngsters to go to
Belmont, but they had the option of going to Cleveland if they
so desired, but either way they had to cross a main thorough-
fare.
Q. What was the reason for not making that an area in
one or the other district with hard lines?
A. I think the attendance pattern there probably was the
major factor or convenience to the people living in the area
—ee ->-
a
+ eae ee
403
and using the criteria to determine a hard line, it probably
wasn't there, no justification to say this is that much closer
or that much farther and so on.
Q. Continuing then to the east, the next optional area
would be one between Grand and Belmont Eelementary
School, would it not?
A. Yes. That area again, the distance factor is probably
about the same between the two schools and again it was con-
venient to the parents in the area with not justification to refuse
their request.
Q. And finally we have an optional area between Lewton
School and Eastmont, I believe, isn’t it?
A. This was an unusualssituation in that it involved two
principal streets, Quimby Lane and Shafer Road, that exited
to the north on Xenia Avenue, or U.S. 35 and they were not
completed to the south, so that they would access to the
Eastmont School. So they would have to exit from this area
to the north and then go either east or west, east of Lewton or
west to Eastmont, or vice versa. Excuse me.
West to Lewton and east to Eastmont.
Q. Is that Eastmont and Kemp?
A. Eastmont and Kemp. Not Eastmont and Lewton. This
isn’t Quimby Lane then.
Well, even so the people in this area here have — excuse me.
I should stand on the other side.
The people in this area here would have to go around this
way and there is no exit from this residential pattern to
Eastmont.
These people can come across this way.
These people have no access to this except going in and
around about way. There is Woodman Drive, which recently
is a very highly traveled street. That formerly had not been
cut through. But now that is cut through and it is almost like
a peripheral highway.
404
So I would say there it would be two factors: Hazard and
accessibility.
Q. Now, if we recede into the past during your tenure
with the School Board, there were at least up until 1969 when
the Stivers boundary changed, two other optional high school
areas were there not, between Stivers and Wilbur Wright and
Stivers and Belmont?
A. Yes, sir.
Q. And can you tell me when those options were created
and why they were not created with hard lines?
A. Well, they were created in 1956 with the opening of
Belmont, and the Belmont area relieved the Stivers School Dis-
trict more than Wilbur Wright, and the optional area between
Stivers and Belmont was at the extreme south and accessibility
to either of the schools was difficult.
Q. Let's go to elementary schools prior to 1972, and during
the period that you were with the School Board, there was at
one time an optional area between Fort McKinley and Fair
port, was there not?
A. Yes, sir, and that was two factors involved in that:
Accessibility and hazards.
Q. What were the nature of the accessibility and hazard
problems that caused that to be drawn as an optional area?
A. The difficulty to getting to Salem Avenue on the east.
They would probably have to go west to Gettysburg, and
the crossing at Gettysburg and Salem Avenue is quite a
difficult crossing.
Q. At one time there was also an optional area between
Fairport and Fairview Elementary Schools, was there not?
A. Yes. That was part of Fairview, made optional to Fair-
port. Again it was the Salem Avenue traffic hazard.
Q. What was the date that that was created?
A. Ihave 1960.
Q. Now, at one time there were two options, were there
not, between Fairport and Cornell Heights?
405
A. Yes. Again it was in 1960, and this was new residential
development where accessibility was definitely a factor, be-
cause there were not through streets and it was hoped that
eventually development would continue those streets so that
there would be more direct access.
Q. At one time there was an optional zone between
Jefferson and Cornell Heights, was there not?
A. The only difficulty there was that these two squares
south of Cornell were about three blocks long. It was between
Princeton Park and Cornell, and on Oxford Avenue to the
south — the first through street south of Princeton Park, and
it extended from Everett Drive to Vernon Place to Windsor
to Rosedale. But these three very long blocks north of Prince-
ton Park had no dividing line between them in order to
make them equidistant. There is no natural line. You just
have to follow maybe a property line on this side of the street
and a property line on the other side. So since it was a distance
almost equidistant, it was made an optional area.
Q. What about an optional area that existed between Jeffer-
son and Brown at one time? What was the reason that was
made and why was it made without hard lines?
A. Well, there again it was a crossing at Cornell and Salem
Avenues. That was a hazardous crossing.
Q. What about the optional zone that formerly existed
between Jefferson and Edison?
A. This area involved the — again, I shouldn’t take time to
name streets, but it was about equidistant and more direct to
Jefferson and more roundabout crossing the railroads and so
on to Edison.
Q. What about the optional area that once existed be-
tween Westwood and Gardendale? When was that created?
A. That was in 1957.
Q. What was the reason for drawing that as an optional
area rather than with hard lines?
A. Well, this was one of those unusual situations where
the boundary line was drawn close to Westwood in order to
give it as much relief as possible, but also recognizing that
406
Gettysburg Avenue, which they would have to cross to get to
Gardendale School, was a four-lane highway.
Q. Were there any other access factors in that area between
the optional area and Gardendale School?
A. Well, they weren’t insurmountable, because they were
so close to the school, even though they had to wind their way
around to get there, it wouldn’t have caused that much extra
distance.
Q. What about an optional area that formerly existed
between Residence Park and Jackson for students at the
Veterans Administration?
A. The north boundary of the Veterans Administration was
Third Street, which was the south boundary of Residence Park.
The east boundary of the Veterans Administration was the
west boundary of Jackson. And I think it was in 1951, the
Board of Education passed a resolution that if there were
elementary school children residing with their parents on this
facility they would have the option to Residence Park or
Jackson.
Q. Was there formerly an option betwee -
nS Abed y p n Greene and Gar
A. Greene and Garfield?
Q. Yes.
A. I'm not aware of that.
Q. Was there formerly an option between Irving and Wil-
lard Schools? aay
A. Yes.
Q. And there were three options in a row there, weren’t
there, on kind of a diagonal?
A. Yes. They involved Willard and Irving, Willard and
Whittier, and Miami Chapel and Whittier, and those were
three triangles, two of which were bounded on two sides by
railroads and the third was bounded on one side by a railroad.
Q. And what was the reason that they were set i
De Phir y et up without
407
A. Because of the hazard giving the option not to cross the
railroad.
Q. Then, as we move on through the city, there was at one
time an option between Cleveland, Lincoln, and Franklin
Elementary Schools, was there not?
A. That was caused by the construction of Highway 35
and its exit ramps which changed the accessibility factor ma-
terially.
Q. What was the reason for not drawing that one with
hard lines?
A. Well, I think it was left to the pleasure of the parents
how they were going to instruct their children to go to school
because of the difficulty of access.
Q. Now, at one time were there some elementary school
optional areas involving Orville Wright Elementary School?
A. Orville Wright and Kemp, the eastern area I have it as
approximately equadistant, and the southern area was acces-
sibility.
Q. Was there any reason for drawing those as optional areas
rather than hard lines?
A. Again, there is no justification to refuse the request
of parents.
oO ° oO
Q. Mr. Curk, you testified this morning you obtained the
racial counts which are found in PX-104; that is, the 1940 to
1951 racial data, that you obtained these from principals’
reports?
A. 1940 to 1951?
Q. I think 1947 to 1951. I am sorry.
A. Well, I don’t remember the report, Mr. Lucas, but there
is an attached document to that which indicated that I did get
it from the principals’ report as I gave in direct testimony this
morning.
Q You said that the principals reported at the end of the
year and one of the questions on the principals’ report to
the State Department of Education was the number of Negroes
enrolled in that particular school that particular year.
408
A. That’s my understanding, yes. wae,
Q. So, from 1947 to 1951, at least, the principals’ reports
carried that information to the staff, is that right?
A. Evidently. I don’t remember it, but evidently from that
document. ‘
[R. I. 1921-1922, Vol. 19] Q. And you were present and,
therefore, knew what the decision-making process was during
that period of time? :
A. Normally I was present, yes, sir.
Q. And I believe you also stated that after Dr. Goff took
Mr. Ammstrong’s place — was it in 1964?
A. I think that was the year.
Q. But you were not as involved but was kept advised of
any major decisions and memorandum; is that correct?
A. That's correct.
Q. And did you go to the Parker School?
A. I did.
Q. Maybe I am embarrassing you, but can you give the
year you went to Parker School?
A. Well, let’s see. I will have to count backwards. It
would be in the year 1919-1920, I think.
Q. Was Parker a city-wide ninth grade school?
A. I think it was at that time.
Q. So, just one grade was in that building?
A. That correct.
Q. Do you recall how many students that involved at that
time? One
A. I have no way of knowing.
Q. Was that building still in use when you came with the
System as an Administrator?
A. Yes, it was.
Q. Now that I have referenced that, can you give any
idea of the size of the building in terms of capacity?
A. Well, it was put to a different use, of course, in sub-
sequent years, and that would probably decrease the number
of students that it could accommodate due to its different usage,
but I would still hesitate to hazard a guess.
409
Q. But it was the co-op school for Patterson; is that correct?
A. That is correct.
Q. Now, this was a city-wide ninth grade. Were there any
other ninth grades in the System that you know of?
A. Not to my knowledge.
Q. And that was part of the junior high setup that the
System had back then?
A. This is before the junior high, sir.
Q. That’s right. Junior high started in the ’20’s?
A. That’s correct.
Q. O. K.
Were there attendance boundaries for other schools at that
time? I take it the attendance boundary for the ninth grade
was the entire city limits.
A. Yes, sir.
° ° °
[R. I. 1928-1931, Vol. 19] A. Before I could answer that
question, the foreword to that table says “The following table
is based upon the present rating capacity of each building”,
and so forth, Pages 8, 9, 10 and 25, I guess it is, of this survey.
Q. The next paragraph though says “The estimated num-
ber of pupils from Mad River Township was based upon esti-
mates secured from the county superintendent’s office and
our own experience table.”
I guess my first question is, at the time this report was
prepared were the Mad River children coming in to those
schools?
A. Evidently so, yes, sir.
Q. And am I reading the table correctly to say that 636
was the number and that the numbers that appear thereafter
are the projections that you are making?
A. I think that would be correct.
Q. Do you know whether or not the enrollment patterns
actually continued as projected or did they drop off or cease?
A. Are you talking about the Mad River students?
Q. Yes, sir.
410
A. I don’t remember whether I continued updating that
attendance record or not.
Q. How long did they continue to utilize space in those
schools?
A. I can’t answer that question either, because it is recom-
mended and I think whatever the year was, I think they were
in the process of erecting their own high school building, and
it wasn’t two years after that they stopped bussing their chil-
dren in.
Q. They provided the bussing into these schools?
A. Oh, yes.
Q. And did this affect in any way your capacity decisions
in terms of having to add the capacity of various schools
because of this influx of students?
A. No. When you say various schools, you are referring
to what, sir?
Q. Assume, and I’m trying to read your table, and if I
am wrong please correct me, but this Mad River assignment
applies to Kiser, Wilbur Wright and Stivers only.
A. And it is a heading which applies to their new high
school.
Q. This says available space in high school buildings, and
the last column has Mad River High School pupils, so I assume
that that affects those three schools and only those three
schools?
A. Well, the projection included the new high school.
That’s what I’m trying to tell you. There is a column for
the new high school, and the other columns would be adjusted
accordingly.
Q. And you are in effect including in your projection of
high school needs at that time building and space then for
these Mad River Township children?
A. No, I don’t think so, bebcause I think as I read trying
to prepare my answer for you, on Page 8 I said excluding the
Mad River Township pupils. I think that is on Page §.
Q. “They do not include any large number of tuition
4li
pupils such as those that we receive from Mad River Town-
ship.”
The question is, does the table in Part V, where you have
those additional numbers in the right-hand column, is that
reflected at all in the utilization figures that you have for those
other schools; Kiser, Wilbur Wright and Stivers?
A. No. For instance, just to check, in 1955-56, 225, 330
would be 555, and 289 would be 844, and 714, you come up
with your 1522. Well, it’s blurred so that could not include
the 763 that is out to the right-hand table or column.
Q. Well, this column says that is available space, and I
take it that means in 1955-56 there were 225 spaces in Kiser,
300, and it looks like 360 spaces in Wilbur Wright, and 289
spaces in Stivers; is that correct?
A. I think that would be correct.
Q. All right. That indicates that you have whatever the
sum of that is in spaces available as of ’55-56, and then you
are projecting a new high school to add a total of 714 spaces,
is that correct, because it doesn’t exist. You projected it.
A. Yes.
Q. All right. So that the sum of the total, in the second
to last column, would be the sum of extra space available, as-
suming the new high school was built?
A. That’s correct.
Q. So that you have that much extra space, 1588, or maybe
1533. It’s a little blurred.
A. Yes. Projected for that particular year.
There would be that much extra space, and you pro-
jected you would have 753 Mad River pupils for that period,
didn’t you?
A. Correct.
Q. Thank you for clearing that up.
Now, in your deposition you told Mr. Diamond that you
never considered race whatsoever.
A. In projecting enrollments, that is absolutely correct.
412
[R. I. 1953-1954, Vol. 19] Q. Are you familiar with what
areas that you were doing transportation in before you retired?
A. That was not my domain, but I was familiar with some
of them, yes.
Q. Can you give me several illustrations?
A. Well, in the northeast was probably most difficult.
Formerly, the northeast area was all transported to McGuffey,
Webster and Allen, and then it was reduced to Webster and
Allen and that, of course, was again an accessibility pattern
as well as distance, and then in the extreme northwest, the
people out around the extreme upper left of the map.
Q. Can you refer to it by school zone now?
A. Well, it is in the Shiloh zone.
Q. Thank you.
A. And those people were bused into Shiloh.
Q. They would have gone to Meadowdale at that time?
A. Well, the period I am talking about, they went to Fair-
view.
Q. Was there any transportation down in the southeast
area?
A. There was at one time transportation in the Wogaman
area when Wogaman was overcrowded and the bus went down
in the southern Harrison Township area.
Q. When Wogaman was overcrowded what period would
that have been, approximately?
A. Well, I think that would cover a span of years. I don't
know.
Q. Fifties or sixties?
A. I am referring to early ’50’s before Highview was con-
structed, Highview being constructed it had a tendency to
relieve Wogaman, and then —
Q. Highview —
A. Do you want me to continue?
Q. Highview, I believe, was built in 1951.
A. I think so.
Q. All right. You say that the Wogaman children were
taken to where?
413
A. Well, the Highview District was a part of the Wogaman
District at that time, and Wogaman was overcrowded and
pupils were bussed, I think, to Irving.
Q. You mentioned something about Harrison Township.
A. Well, the southern part of that area at that time was
not in the city, but a part — now wait a minute. It might
have been, but it was formerly southern Harrison Township.
Maybe it was in the city at that time. I can’t say for sure.
Q. The Highview School when it opened was only one
percent black?
A. That’s right.
Q. Were the white children being taken to Irving?
A. Well, I presume so.
Q. Instead of going to Wogaman which was overcrowded
and which was black, they were taken to Irving?
A. That’s right.
Z. TESTIMONY OF WILLIAM GOFF.
[R. I. 1959, Vol. 19] Q. Try to keep your voice up so I can
hear you way back here and let’s start out by asking your
name.
A. William Goff.
Q. Where do you live, Mr. Goff?
A. In Dayton, Ohio, 918 Debbie Court.
Q. What is your occupation?
A. I am Assistant Superintendent of Schools for Student
Development.
Q. How long have you held that position?
A. Just over eight years.
I have been Assistant Superintendent for four years. I have
been in Dayton for eight years.
Q. Can you give us your educational background?
A. Yes. I attained a Bachelor's Degree in Psychology at
414
Ohio State and Master’s Degree in Psychology at Ohio State
University and the Doctorate in Exceptional Children Guid-
ance and Educational Administration at Ohio State.
[R. I. 1962-1963, Vol. 19] Q. What had been the practice
of the Board with respect to transportation of students insofar
as distances are concerned?
A. You mean prior to this policy?
Q. Prior to and after 1966.
A. Well, after 1966 the policy as it is stated here, did estab-
lish a 1.2 radial distance from an elementary school, that is
outside the 1.2 mile, being a transportation area.
It also set up a series of criteria for high school transporta-
tion, too. The State law, as you are probably aware, does
require only that students who are in elementary schools be
transported if they are two miles or more from their school
of attendance. This was at this time.
Q. All right. Was that the practice and policy of the
Board?
A. The practice of the Board made use of the permissive
part of the law which allowed over one mile from the school.
So the 1.2 mile policy that was established here fit into the
practice that was being exercised in 1966.
Q. What were the financial implications of the Board's
transportation policy in the 60's?
A. Well, as a flat rate school district, the district received
nothing for any kind of transportation of regular students.
There was reimbursement for handicapped children attend-
ing Gorman School for Crippled Children.
[R. I. 1998, Vol. 20] A. The primary limitation in setting
up the sites was the one and a half mile direct travel distance
which was the transportation policy so that the youngsters
could walk to the school rather than be involved in transporta-
415
tion. There were a number of other sites suggested, were there
not? If I can name a few, tell me if I am correct. Jane Ad-
dams was suggested as a middle school, was it not?
Q. Jane Addams, Meadowdale, Brown, Emerson, Kiser
were those some of the other schools?
A. I think some of these were identified in an Ohio State
study prior to the time that we finally set them up, yes, sir.
Q. Emerson is actually a former junior high school; is that
correct?
A. I believe so.
Q. And that would make it particularly suitable for con-
version to a middle school?
A. Yes.
ra oe" “ poet mee 19] Q. Try to keep your voice up,
r. Gott, because the Reporter also has to get
A. Isee. All right, iG ea:
The middle school, we looked for possibilities of middle
school placement on the east side, on the west side, and in
the north part of the city. :
We had the assistance of Ohio State Universi
sity through a
grant that they had to put youngsters on large maps so a
we knew where they were, since we do not have a central
file system right now on every youngster, and with these maps
we establish the individual schools in three sections of the
city using what buildings we felt could be most adaptable to
a middle school, and those who could best handle the eight
to five youngsters.
Q. Was there any new construction involved?
A. No, sir.
Q. What students interracial experi i
perience, if any, were af-
fected by the establishment of the five middle schools? Maybe
you had best take them one at a time.
What about Orville Wright?
416
A. At Orville Wright, as far as a racial integration at that
school, this was improved for the six to eight level by bringing
youngsters who were formerly attending Washington Ele-
mentary School.
F ranklin Elementary School, nothing was accomplished
there as far as any racial improvement.
At Kemp School, the racial improvement there as noted on
this exhibit, was due pri narily to a housing development, not
to a change in the boundary.
And in Washington School, Washington Elementary School,
this did bring more white youngsters into Washington School.
It brought white youngsters into Washington School who had
not previously been with black children at this particular age
level, and of course, it took out some of the older black chil-
dren to go to Orville Wright.
Q. Allright. And are the various mixtures and nonmixture
of the races in the other middle schools shown on this Exhibit
AW?
A. Yes, they are. ae
Q. Was there any reason for not establishing more than
these five middle schools?
A. Well, it was felt that to begin with, with five middle
schools, it was a pretty big bite in itself, and so basically this
was an arbitrary decision, really, not to go into the whole
district at once.
We were also introducing the individually guided educa-
tional program into the middle schools and into their feeder
schools. So this, too, meant another kind of planning and re-
organization for those schools.
Q. What is your relationship to the freedom of enrollment
program that has been effected in the Dayton School System
since its adoption in May of 1969? ahctek
A. The associate director for student relations administers
the program itself.
I am his direct supervisor, and we work together when
problem situations come up in the interpretation of the policy
or how we would administer it.
417
Mr. Carroll is directly responsible for that, but he is a mem-
ber of my staff.
Q. All right. The Court is already fully familiar with the
policy and the various priorities in it.
Could you tell us just how the mechanics of the freedom
of enrollment works? Are there cutoff dates or when is enroll-
ment in the program effected? |
A. Well, there is a time, and it has been twice a year
enrollment dates, when youngsters may make applications for
freedom of enrollment.
Administratively we would like to have a cutoff date simply
to be able to clean things up. Our practice has been that we
do accept youngsters even right on to until the time that
the second semester begins, or the first semester and the fall
begins. So we actually have no cutoff date. We have a begin-
ning enrollment date when youngsters and their families are
asked then to send their application in.
Q. How are enrollments projected for the freedom of
enrollment program?
A. The guidelines that Mr. Carroll and I worked together
on were simply to contact the principales of schools where
youngsters had requested transfer and to get a number from
those schools at various grade levels where the principal felt
that he would have room. There is a comparison of this with
the tentative organization that the principal must submit to
the staff development department in the spring in order to
plan for teachers for the coming year.
Q. What is the tentative organization for each school and
how is it developed?
A. I guess a staff development person can answer this
better, but primarily the principal and his staff must assess and
make projections of their enrollments, relate this to their
classroom space, and the number of teachers they then have,
and then present that particular relationship to the staff
development department for review.
There are various criteria established in Title I schools as
ee en a
418
opposed to non-Title I schools. That is, the ratio, and I'm
sorry, I don’t remember these, but they differ for a center
city school as oposed to a suburb, that is, the Title I being a
lower pupil-teacher ratio. So the principal then uses this
figure to estimate how many teachers he is going to need for
the coming year.
Q. All right. And is the capacity insofar as freedom of
enrollment is concerned tied in with the tentative organiza-
tion worked out for each school by these various criteria?
A. Well, the principal himself is normally — for instance,
right at this period of time, for transfers, he doesn’t have a
tentative enrollment. We are asking him if he has a vacancy
for second semester. For the second semester he has a
tentative enrollment, or a TO worked out, so that we can
make some judgment as to whether or not he does have room
in relation to what he is asking for as far as teachers are con-
cerned. But we have depended upon the principal to give
us this figure.
Are you aware of anything to indicate that the free-
dom of enrollment program has not worked in a fair and im-
partial manner for all students in the system?
A. No, sir, I’m not.
Q. According to Defendants’ Exhibit AD, in the present
school year, there are only 178 students out of more than
50,000 in the System who were denied transfers under the
freedom of enrollment program because of classroom space.
Are those figures and similar figures in the other exhibits
concerning freedom of enrollment accurate to the best of your
knowledge?
A. Yes, they are.
Q. What are hardship and emergency transfers, Dr. Goff?
A. These are individual kinds of situations which develop
with a child or a student in a school which are a program in
his adjustment or in his making progress in school, and each
of these individual situations is reviewed to see whether or
not it is apropriate to make any school transfers or whether
419
any other kinds of changes need to be made to assist that
youngster in his school development.
Q. Let me refer you to Plaintiffs’ Exhibit 16, which sum-
marizes the hardship and emergency transfers for the present
school year.
Do racial considerations play any part in hardship or emer-
gency transfers, Dr. Goff?
A. No, sir, not within this policy at all.
Q. What are special education transfers?
A. These are youngsters who are evaluated by school
psychologists in relation to abilities, in relation to achievement,
performance in school, and if eligible for state standard self-
contained classes for educable mentally retarded, they are
then placed into such a class with the parents’ permission.
If there is no such class available for a particular age
range at a school, that youngster is transferred to the nearest
school where there is such a class available.
Q. Do racial considerations play any part in such transfers
or assignments?
A. No, sir, they do not.
Q. What are disciplinary transfers?
A. I would assume the question really parallels the hard-
ship and the passionate kind of transfers that does involve an
evaluation of a situation in which a youngster has been involved
in a discipline kind of way.
And if it is indicated that a school transfer would be helpful
in improved adjustment for this youngster, such a transfer
might be made.
Q. Do disciplinary transfers occur both within and without
the context of the freedom of enrollment program?
A. Actually, they are without the context of the freedom
of enrollment program. Disciplinary transfers are not con-
sidered freedom of enrollment transfers.
Q. And what are the criteria by which such transfers would
be made?
420
A. Well, there would be a number of these. Actually we are
looking at the child’s immediate kind of adjustment in a par-
ticular kind of situation. But before a transfer would normally
be made, we would also be expecting some other kind of sup-
porting help for that youngster really outside the school
system in most cases.
A caseworker from the Family and Children’s Services, from
the Juvenile Court, a continuing treatment program with a
child guidance center, a children’s psychiatric hospital under
psychiatric treatment.
We look for something to give support to the child beyond
just a matter of his being transferred from one school to
the other.
Q. Do racial considerations play any part in these kind of
transfers?
A. No, sir.
Q. Now, during your tenure with the Board, there have
been a few special transfer situations involving Jefferson, Edi-
son and Westwood Schools, have there not?
A. Yes, sir.
Q. I'll refer you to Defendants’ Exhibit BA.
Q. Now, the Court is already familiar with these three
situations, I think, so I will try to confine my questions to
just certain aspects of them.
First of all, can you tell me the circumstances that led up
to the Jefferson transfers and what caused those transfers to
stop?
A. The Jefferson transfers were due to the crowded situ-
ation on that Jefferson campus.
Q. Were the Westwood transfers a situation similar to the
Jefferson transfers?
A. Yes, sir.
Q. And on the transfers from the Edison students follow-
ing the Edison fire, was there a meeting of administrators the
week following the fire, in April of 1968?
?
421
A. Yes, sir, there was.
Q. Were you present at that meeting?
A. Yes, I was.
Q. Was any plan adopted at that meeting regarding the
assimilation of those students and the schools to which they
were transferred?
A The plan adopted for the remainder of that school year
was to transfer the teachers with the students to the schools
to which they were assigned.
Q. Did the administrators the week following the fire adopt
any plan with regard to what would be done the following
fall?
A. I know of no plan being adopted for the following fall.
My impression was that we were dealing with an immediate
situation at this time and we felt that these youngsters should
not be disrupted from their normal class.
[R. I. 1991-1994, Vol. 20] Q. You were with the system
in 1970, is that correct?
A. Yes.
Q. Are you familiar with the transfer of two children
named Fielder (spelling) F-i-e-l-d-e-r, from Roth to another
school in the system?
I believe it resulted in a law suit in which the Dayton School
System was involved?
A. Yes, sir. I remember the case, not the details.
Q. I believe these students were Rob and Beverly Fielder,
who were attempting to transfer from Roth.
Do you know what school they were attempting to go to?
A. No, sir, I don’t recall specifically.
Q. Do you know what happened in that case?
A. As best I can recall, the case involving the girl in the
family was brought to a preliminary kind of hearing in court.
Q. Let me ask you and see if I am correct.
The School Board did oppose the transfer of the students as
422
had been requested by the parents, and the parent filed suit,
is that correct?
A. I’m sorry, Mr. Lucas. I have not prepared to look
up that particular case. I just don’t recall.
Q. I have a newspaper clipping.
Q. Does that refresh your memory somewhat?
A. Yes. Thank you.
Q. Dr. Goff, am I correct that the students was, after the
litigation in court, subsequently given a medical transfer from
Roth?
A. Yes, sir. That appears to be the way that it is, as I
recall from this.
Q. Théy did attempt to transfer without citing a medical
reason, the Board denied it, and after the litigation I think
the Board’s possession was sustained, is that correct, but the
student was subsequently permitted a medical transfer?
A. No, sir. As I would recall it from the information you
have given me here, it was a decision worked out with the
court that a medical transfer would be an appropriate kind
of thing in this situation. There were two youngsters involved,
and the girl was given the medical transfer on the basis of
medical information submitted.
Q. And is it your understanding that that medical infor-
mation was not submitted initially, is that correct, with the
application?
A. As best I can recall, yes, sir.
THE COURT: Mr. Lucas, before you leave this, may I
ask the witness one or two questions.
What was the Board’s reason for denying the transfer,
Dr. Goff?
THE WITNESS: Well, I would assume there was no
specific reason for it, Your Honor.
THE COURT: I though that the School Board operated
under freedom of choice.
423
I am aware of the priorities, by the way, but I am curious
as to what reason was assigned for the refusal to permit this
child to transfer?
THE WITNESS: Well, as best I can recall it would be
simply because they weren’t the girl nor the boy, qualified
under the freedom of enrollment to be transferred.
THE COURT: They sought to transfer from Roth to
what school? _
THE WITNESS: Again, I believe it was Fairview, but I
am not sure whether that was in there or not. It was to another
school other than Roth, though.
THE COURT: Were these students black or white?
THE WITNESS: White.
THE COURT: You may proceed.
Q. In fact, there have been a number of medical certificates
given for students who sought transfers for medical reasons,
is that correct?
A. Yes, sir. Medical reasons would be a reason to authorize
a transfer.
A.A. TESTIMONY OF
LORANA MADELINE DORSEY.
[R. I. 2013, Vol. 20] Q. Was there a swimming pool?
A. Yes.
Q. When you were there, how many black students were
there? Were there a lot or a few?
A. Not over 25, as I recall.
Q. All right. Were black students permitted to use the
pool?
A. No.
Q. Was there a meeting between black students and the
representatives of the school?
A. There was.
424
Q. And what was the purpose of the meeting?
A. To ask the reason why we weren't permitted to use
the swimming pool. They would take it under consideration
they said, but nothing came of it.
THE COURT: Mr. Lucas, I would like a date.
MR. LUCAS: Yes, sir.
BY MR. LUCAS:
Q. When did you graduate from Stele?
A. 1930.
425
VIII. RELEVANT PARTS OF THE RECORD OF THE
REMEDIAL HEARINGS HELD IN DISTRICT
COURT IN FEBRUARY OF 1975 (R. IL).
A. TESTIMONY OF ROBERT O. GREER.
[R. II. 156-157] Q. What advice did you give with respect
to the subject first of just pairing of schools?
A. Our advice after consultation with regional specialists
and others was that pairing in the city of Dayton would seem
to be not appropriate at this time in 1975.
Q. And why is that?
A. You are quite familiar I am sure, Mr. Lucas, with the
different enrollment patterns and enrollment fluctuations since
1968 and since 1971 and 1972. The Dayton School System
has lost a little over 10,000 pupils, a little over 1,500 in the
high school grades and the others in elementary. That is
one complete high school. You could pull out of the other
7,500 several elementary schools.
When you look at this loss pattern and we looked at the
proximity of buildings now existing, you would have to have
close proximity of different types of buildings racially in order
to make the kind of switch and pairing that is necessary.
Q. You are assuming only contiguous pairing; is that cor-
rect?
A. No. Do you want me to complete that?
THE COURT: Please continue.
THE WITNESS: It was our feeling that if pairing were
done with contiguous kinds of pairing, that this, then, would
require a number of boundary changes, a number of pairing
changes within rather rapid periods of time. The turnover
rates in most of the big cities including Dayton in pupil pop-
ulation is very rapid. You may find some classrooms that
change completely during a grading period because of mo-
bility of the population, black and white.
426
Therefore, it seemed unwise to us to advise at this time
using a method that has not been working too well either in
other systems during the last five years or in the city of Dayton
based on the enrollment pattern.
[R. II. 182-87] Q. Now, if I understood your earlier tes-
timony correctly, you have indicated that in your opinion
one of the problems with pairing and similar concepts in
Dayton arises from the mobility of the Dayton population.
A. Right.
Q. With respect to mobility within the school system
itself, could you explain to us what you mean?
A. This is what worried us when we listened to the various
reports and went back over our mobility excuses over the past
five years at least. I don’t know whether people in big cities
like Dayton move because of jobs or housing or because they
are forced to move because of absentee landlords or what.
That wasn’t our purpose to find out, but in fact children and
parents do move frequently in a city such as this and they are
moving frequently here from one area to another, and as
I said earlier, I think, to Mr. Lucas in response to one of his
questions, you may have an entire room in a grade level change
every six weeks.
Now, this is an awful thing for a teacher to face who doesn’t
understand all these varied kinds of people without staff de-
velopment, and it is an awful thing to try to pin down enough
to say let’s pair this building with this building right across
here and in a number of cases as you look at Dayton, you are
going to be pairing an all black building with an all black
building and that is not going to help anything or if you pair
it with a building that may be all anglo in certain sections,
you are pairing poverty with poverty and that doesn’t answer
any question.
It was our belief that the system should look at the methods
which would bring together a multi-ethnic and multieconomic
kind of grouping with their offerings or at least offer some
427
kind of method which would bring more of different kinds
of people in different economic levels together so they could
all learn about everybody's contributions without pairing poor
and poor or black and black.
I don’t know. Did I answer your question?
Q. Yes. I think you did.
You also discussed a different type of mobility which was
mobility out of the school system itself, and could you explain
for us what has been the pattern in Dayton and in similar
communities with regard to that kind of mobility?
A. Well, in any system where you have over an extended
period of time confrontation and lack of confidence and cred-
ibilty of the system, and in credibility of the system I don’t
mean to be derogatory about Dayton. This has happened
in every big city in this country where people have lost con-
fidence in State Departments of Education as well. They say
none of us are doing anything. You can immediately start
looking for the flight of people to the suburbs, the greener
pastures, and at first we looked and we said okay, white is
running. That was the common term, and we took a good
hard look and we found out the affluent black was running too,
and we were all running from the poor and from those who
we considered less learned. We were running from the places
where industry had decayed in a city. We were running from
where jobs were different and we all seemed to want to find
the place that was perfect for us on the fringes of a city.
First you moved to one edge of the city and then completely
out of it and if you follow the pattern in Dayton, it is just like
every other big place where this has gone on for a period of
years.
Now, if the affluent whites move and the affluent blacks run
either outside or to parochial schools or some other place, you
have left a city of poverty and whatever. It can be black,
it can be Appalachia, or anything else, any kind of mix, but
you just have a poor city and a poor school system.
What we were trying hopefully to discuss with the School
Board when we met with them and the Administration was
428
get your minds on building the kind of quality that will hold
all the people in the system and then if you have got to build
buildings to get them back together, then build a better rat
trap and call the population back. You might as well do it
as a school system because the businessmen are sitting out
there waiting until the whole thing decays and they will buy
it up and build up the most beautiful kind of city all over
again and maybe the same folk that are in it won't even be
there.
I apologize, Your Honor.
THE COURT: To the contrary Mr. Greer, in a problem
that has complexities beyond my ability to understand, you
have been very helpful.
You may proceed, Mr. Greer.
BY MR. GREER:
Q. Has the experience with certain types of desegregation
plans including pairing techniques been to accelerate this
movement out of the inner city process you have described?
THE WITNESS: As I answered before, in specific in-
stances, pairing just wouldn’t work because of the types of
youngsters and economic level of the areas and the fact that
usually in inner city you will find a number of elementary
schools have been built as the black population increased in
the inner city. Another elementary school was stuck up to take
care of the overload, so you had so many black schools until
there is hardly anything to pair them with, and if you did pair
across, it is with another elementary of poverty over here at
the other racial level that happened to get stuck on the edge
of that ghetto.
The poor are always there with us, and I don't care what
color they are, cities have just stuck them in these situations,
so the level and quality of educational offerings is not good
for white or black.
429
B. TESTIMONY OF GORDON FOSTER.
R. II.
. a II. 199] Q. State your full name and occupation,
A. Gordon Foster. I am a prof iversi
A. G , i a professor at the U
“—— in Coral Gables, Florida. eee
R. LUCAS: Doctor Foster’s qualificati
been tendered to the Court. a a
THE COURT: Yes.
BY MR. LUCAS:
Q. Doctor Foster, have you had an opportunity to examine
Defendant's proposed plan of desegregation?
A. Yes, I have.
[R. II. 223-227] Q. Do you know what the approximate
cost of the total magnet school program has proposed in the
Board’s plan was?
A. AsI recollect, it was around three or four million dollars.
Q. I believe the record will speak on that.
Turning your attention to the other
el t
programs, can you identify them? PE delleoant
A. There were three magnet
programs. One was mod
foreign languages at Carlson which would include three blocks
8 a ed in terr 3 of timing with approximately 120 children
“m : ock which would make a potential of 360 students. I
eve this was intended to be held on Opposite days or
opposite schedule from the science busin that i
ess so ,
interefere with that. at it wouldn't
There was a business education skills pro a
and this was for grades 6, 7 and 8 which nite cua
approximately 300 students, and the third program ane
Kemp which was a career motivation center which was an-
ticipated to interest approximately 220 students at the fourth
430
i k. This
d fifth grade centers for two two-hour session a week
“es hi much like the current career opportunities pro-
that are being offered all over the country.
a All right. Is it your understanding that these are all
part-time programs?
A. That's correct.
Q. And that the base enrollment in each school at Carlson
d Huffman would remain the same?
a ‘That's correct, and the children would be transported
in.
Q. Is it your understanding that these programs would use
only the excess capacity at the respective buildings?
A. Yes. i
Q. Have you examined the freedom of enrollment policies
and the results of the freedom of enrollment and transfer
policies in the plan?
A. Yes, I have.
Q. Can you describe those results?
A. Well, as I understand the plan, there were two basic
plans that had to do with freedom of enrollment or open
enrollment. One was called open enrollment which was for
high schools only, and that was started just a year ago :
January of 1974, and to the best of my knowledge, I foun
no reports of how many children moved for open enrollment
in this program in a desegregated section. There were no
numbers reported at all by race. .
Q. Is that the one where they have an enrollment period
prior to the opening of school?
A. I understand a child picks three choices, a first, second
and third choice and he runs through a randomized process
of some sort and if he doesn’t get in that, why, then, he is
assigned to his nearest high school, capacity being considered.
The freedom of enrollment is essentially what we call a
majority-minority transfer program, and the figures for =
are given in Exhibit A to the Board's plan. Well, it is ry y
Exhibit B. The figures are 391 in the high school for the
‘Sanne
FS ee ee
eieteaiaed
ee ne ee ee
431
1973-74 school year, and a total of 346 at the elementary and
middle schools for that year. Those figures which add up to
737 coupled with carryovers from prior years of 613 and a
second semester figure for 1973-74 of 258 give a total of 1,608
students in schools other than their neighborhood schools.
Q. How many of those were black children going to pre-
dominately white schools?
A. Well, I have a racial breakdown of receiving schools
only for the one year of 1973-74, first semester. That was the
737 figure.
The way I read the data, all but nine of those would be
black children going to white schools which I believe was
your question.
Q. Viewing the entire desegregation proposal of the Board
of Education proposal and the number of children affected
by such a plan, do you have an opinion as to its effectiveness
as a plan of desegregation?
A. Yes. My opinion is that basically it is a curriculum
plan rather than a desegregation plan, that something like a
total, a maximum of 6,400 part-time and full-time students
could be affected by this plan, and many of those would only
be in partially desegregated situations at best. Out of this
approximately 6,400 maximum figure, about 3,000 would be
what we might call full-time desegregated students. Those
would be the ones at Stivers-Patterson Co-Op and Kiser and
Miami Chapel Elementary School.
Secondly, there is no guarantee of the desegregative effect
we all know of this program. I think some of the programs
are likely to achieve some desegregation although minimal
and some will maybe strike out.
Based on past experience in other systems, one would have
to be somewhat less than optimistic about the total effect.
I think we have mentioned the fact that in the schools where
there is just a program such as at Roth, Dunbar, Huffman,
Carlson and Kemp, desegregation is essentially not desegrega-
tion. It is just a group of kids coming in in an intact group.
432
Q. In a what?
A. It is a group of pupils being transported into those
schools in an intact group, sometimes in smaller groups, but
always staying apart from the rest of the school program.
[R. Il. &.8] Q. Doctor Foster, at the request of the Plain-
tiffs, have you prepared a desegregation proposal which has
been submitted to the Court and to the Defendant School
Board?
A. I have, yes.
[R. Ul. 231-233] Q. Did you have that as any sort of
inflexible standard or was that a goal?
A. No. I think you will find in the estimates of the in-
dividual schools that some of them got a little bit outside that
range. The object, in other words, was not to racially balance
a system but to remove the racial identifiability of any indi-
vidual school insofar as possible. There is quite a difference.
The techniques as in most desegregation plans were to take the
easier things first and see what that would do.
The way the demographic situation rests in Dayton, there
are very few instances where you can redraw zone lines be-
tween contiguous schools and effect any degree of desegrega-
tion. The schools that are in the buff area between the white
population and black population generally are already in a
desegregated mix, and then when you get farther out from
that center of desegregation, you run into a situation where
you are contiguous no longer and at that point you need to
consider pairing or clustering.
As was stated this morning or at least partially stated,
clustering or grouping is an extension of pairing. Pairing is
essentially two schools put together. A clustering or grouping
can be two or more.
In a system that is approximately even in racial makeup,
433
pairing works very well if capacity is the same because you
can pair one 50-45 per cent black school usually with a white
schoo! on the opposite side, only it would be like 90 per cent
versus 90 per cent.
Where you run into clustering more than two schools, you
usually do it because you have a diiferential in the capacity
which necessitates putting more than two schools together
to come out.
So, essentially, the plan developed a serious of elementary
clusters. It left four schools the way they are and the original
plan recommended we close three schools, and I have an
amendment to that if we want to discuss that so that the plan
would not involve any closing of elementary schools.
IX. RELEVANT PARTS OF THE RECORD OF THE
REMEDIAL HEARING HELD IN DECEMBER OF
1975 AND JANUARY OF 1976 (R. IIL).
A. TESTIMONY OF WILLIAM M. GORDON.
[R. III. 18] Q. Could you state your name, sir?
A. William M. Gordon.
Q. And what is your employment?
A. I am an Associate Professor of Education at Miami
University.
Q. And what is your relationship to the plan which we
have presented to this Court?
A. I directed the team that put the plan together.
[R. III. 45-46] Q. Would you consider it an adequate
desegregation plan if all of the schools, the elementary schools
434
in Dayton which were presently identifiably black schools
ended up with the 70 percent black or the higher percentage
black and all of the formerly white schools ended up with
the higher percentage white?
A. I would hate to see that considered as an implemented
plan in the City of Dayton.
Q. Would you want to randomize the proportions?
A. Yes. I would say if that happened, that it would meet
those parameters, and if those parameters were acceptable to
the Court, I guess then that would be considered a desegre-
gated school system. I don’t think it is desirable.
Q. Would you consider that desegregation of the system?
A. No. I would much prefer to see the schools not identi-
fiable, and I think if a school has been historically a white
school and then just comes into the bare minimum figures,
that it probably would still be perceived as a white school or
a black school.
[R. III. 52] THE COURT: ° ° ° That continued to move
to the suburbs is not something that results from the desegre-
gation order, is it?
That has been going on in Dayton for the last 20 years?
A. It was established today approximately 11,000 white
youngsters and 900 black youngsters have left Dayton in the
last five years.
Q. There has been a substantial out white migration in
most urban centers; is that correct?
A. Yes.
Q. And that is without regard to desegregation; is that
correct?
A. Yes, it has been going on. In some instances with
desegregation and in some instances without.
435
[R. III. 61] Q. Am I correct that the open enrollment
program does not result in substantial desegregation?
A. Well, we are in Court here now, so I would say yes,
you are right.
Q. That is a conclusion at page 30 in your report, is it not?
A. Yes.
Q. Do you have figures indicating how many white stu-
dents chose formerly black schools on open enrollment? Is
that not set forth in the document?
A. Yes, it is in the document.
Q. Was it one, two or three?
A. It is a very small number. I think it was one. I am
not sure.
[R. III. 71] Q. If that pattern reflected that all of the
formerly black schools were one-third white and all the for-
merly white schools were two-thirds white, would that be a
racial pattern in your opinion?
A. Yes.
[R. III. 282-285] MR. LUCAS: This is an offer of proof
in connection with the testimony of Dr. Gordon. The Court
has indicated that plaintiffs could not inquire of Dr. Gordon
into the basis for the rejection of the concept of pairing and
clustering of schools, and in particular insofar as it pertains
to page two of the cover letter to the board transmitting the
board’s expert’s plan. ‘
That cover letter recited that the reason for not using pairing
and clustering was because such pairing and clustering tended
to cause white flight. Throughout the document marked Ex-
hibit A on behalf of defendants, there are references to white
flight and reasons why actual desegregation was not attempted
using one of the major criteria under the Swan case.
436
Reference is frequently made to the articles by James Cole-
man, one of which is appended as an appendix to the plan,
Exhibit A in this record.
If permitted to inquire by the Court, I would offer as Exhibit
I to this offer of proof and this record an article appearing in
the New York Times July 11, 1975 entitled “Coleman Concedes
Views Exceed His Race Data.”
In particular, I would have directed the witness’s attention
to the following paragraphs:
“In answer to questions, he said that his study did not deal
with busing, and that his arguments applied to trends in only
two or three southern cities.
“Some of the things I said went somewhat beyond the
data,” he said.
The New York Times article goes on to point out as follows:
“However, a thorough check of all 20 cities — in which key
officials in each were questioned by telephone — could find
no court-ordered busing, rezoning or any other kind of coerced
integration in any of the cities during the 1969-1970 period.”
Newspaper articles are appended throughout Exhibit A,
the proposal submitted to the Court by the board. Therefore,
this article would have been offered in response.
I would also offer a document which I will mark Exhibit II,
an article entitled “A Response to Professor James S. Cole-
man’s Recent Research and Statements on Educational De-
segregation Efforts” by Robert L. Green, Dean of College of
Urban Development and Professor of Educational Psychology
at Michigan State University, East Lansing, Michigan, and
Thomas Pettigrew, Professor of Social Relations at Harvard
University, Cambridge, Massachusetts.
I would have also offered an article appearing in, I believe,
the American Association of School Research Journal, the
exact title I cannot recall, an article titled “Reanalysis of Cole-
man’s ‘recent trends in school integration’” by Gregg Jackson
of the U. S. Commission on Civil Rights. That would have
been Exhibit III.
I would have also offered an article by Dr. Robert L. Green
437
entitled “On Professor James Coleman and busing — white
flight” as Exhibit IV.
As additional support, I would have offered an article from
the Dayton Daily News dated Sunday, December 7, 1975
written by Tom Teepen, editor for the Daily News editorial
pages. This would be Exhibit V. Similar articles from local
papers were offered by the defendants. This article is entitled
“SOS Exaggerating ‘White Flight’ Menace Not Up To Its
Billing”.
I would have also offered in evidence an article from the
Dayton Daily News dated December 8, 1975, page one, en-
titled “Dislikes busing, desegregation case puts Rubin on spot”
byline article by Jonathan Miller indicating that the Court
has expressed concern about some of the issues which could
have been explored had the Court permitted me to examine
the witness in full on this area. It is significant to note that
the article indicates that the Judge of this court is concerned
that a busing-based school desegregation plan “may so alienate
white members of the community that short-term school de-
segregation may lead to long-term city segregation.”
We do not represent that we know these to be the views of
the District Court, but that these have been represented to
the public at large as the views of the District Court. Of
course, the witness’s answers to questions might have led to
other lines of inquiry which would have further exposed the
reasons for their rejection of one of the Swan techniques tend-
ing to demonstrate their choice of a less effective alternative
reflecting on two factors; number one, good faith and, number
two, intent to segregate.
(End of proffer. )
438
B. TESTIMONY OF LARRY W. HUGHES.
[R. III. 111] Q. Dr. Hughes, did you agree with the
statement of the report that appears on page 127 that says
it has been found that the relative closeness of Dayton Schools
makes long-haul transportation an issue in many cities moot
here?
A. I generally agree with that statement. I think it makes
it a less pressing matter.
[R. III. 141-142] [Q.] What I am concerned about is
whether or not in desegregating elementary or secondary
schools, you should end up with a pattern of schools where all
the formerly black schools were 70 percent black and all the
white schools were 70 percent white.
A. I don’t think that would be good.
C. TESTIMONY OF JOHN B. MAXWELL.
[R. III. 200] Q. State your full name and your occupation,
please.
A. John B. Maxwell, Superintendent of Schools in Dayton,
Ohio.
[R. III. 202-204] Q. All right. Has the Board of Educa-
tion adopted any plan for submission to this Court?
A. No.
Q. Has the Board of Education taken a vote on submission
of a plan to this Court?
439
THE WITNESS: The Board voted 7-0 to submit the plan
but not approve it.
Q. All right. Was there a vote taken on the adoption of
the plan by the Board?
A. No.
Q. It was not a motion to adopt the plan, endorse it?
A. There was an amendment to the motion which was
defeated.
Q. And the amendment was of what nature, sir?
A. The amendment was to approve the plan, and this
amendment was turned down.
Q. And the vote was what?
A. 4to3.
Q. Did you make a recommendation to the Board as the
chief school officer for the District as to whether or not it
should approve this plan that has been submitted to the Court?
A. No, I didn’t.
° e oO
THE WITNESS: No, I did not.
Q. Has the Board taken any position with regard to some
other plan which it would approve for submission to this
Court?
A. No.
D. TESTIMONY OF GORDON FOSTER.
[R. III. 205] Q. State your full name and occupation,
please.
A. Gordon Foster. I am a professor of educational ad-
ministration at the University of Miami in Coral Gables,
Florida.
Q. Dr. Foster, your qualifications have previously been
furnished to the Court and you were qualified as an expert
with the Court.
440
THE COURT: There is no question. Dr. rage is an
expert in this field, and I am pleased to hear from :
: Okay. So, if we have a
R. III. 230-232] THE COURT:
schocd 33 percent black and 67 percent white, that is not
ially identifiable?
“TT oaTNES: No. I think what you ee hese :
i i hools, i ew
is I was speaking about the high sc =
the black schools
Js come in at 33 percent black and
pain in at 67 percent black or the formerly black schools os
white schools, then I would hold they still maintain Aig y
identifiability rather than if they came in randomize i
THE COURT: Then, racial identifiability is not a function
of percentage of students?
E WITNESS: No.
rae COURT: But you just said that a school formerly _
THE WITNESS: Well, then let me say that it is not the
- ; . . .
«Tie COUNT: And you would draw a distinction between
the 67/33 and the 36/64? The three percent would make
i ce to you?
: THE WITNiG#: No, I wouldn't argue too much ~~
that. The thing I would argue more about is, as I say, a
the formerly white schools are still predominantly white. ?
THE COURT: Let’s assume we turn it completely around.
We will take all the white schools and make them 30 mee
white and 70 percent black. What is your view of the racia
identifiability there?
TOE WHTNIGE: It would be a lot less than it would be
previously, but I think a randomized assignment so that you
don’t have any relationship to what went on previousiy, any
fixed relationship, is much better in terms of community per-
ception about racially identifiable schools.
THE COURT: You may proceed, Mr. Lucas.
44]
Q. Dr. Foster, is what you are saying that you cannot
consider any school in isolation from the system in which it
exists?
A. Yes. Well, that is one thing.
Q. Dr. Foster, are you familiar with efforts by some school
boards to set up a pattern whereby the white schools remain
whiter and the black schools remain blacker without reference
to particular systems?
Is that something that school systems sometimes try to do?
A. Yes, sir.
Q. Does that protect usually the controlling white popula-
tion or the white power in the School Board?
° e e
THE WITNESS: Quite often it does, yes.
° oO °
[R. III. 249-251] THE WITNESS: As I remember in my
response to you [the District Court], I said that that fact
coupled with the situation that all the formerly white schools
were in the 70 percent range and the formerly black schools
the other way around — I am sorry — all the formerly white
schools were at 30 percent black and the formerly black
schools were at 70 percent black coupled with this difference
in my opinion tended to make them racially identifiable.
THE COURT: You may proceed.
Q. As far as that type of thinking goes into racial iden-
tifiability, wouldn’t it be true even if you filled Dunbar High
School fully with white students, people in a few years are
going to recall that as being a so-called black school?
A. As a school that used to be a black school.
Q. And the same thing would be true if you filled Belmont
with entirely black students?
A. Yes, sir.
Q. But as far as your own definition of racial identifiability
442
is concerned, that is simply a situation where any school falls
drastically outside plus or minus 15 percent from the mean
percentage in the school district, isn’t that correct?
A. Well, that is part of it. The other part is what we dis-
cussed earlier, and ihat is that you can’t consider any one
school ia exclusion from the rest of the system. The biggest
problem is if you have all formerly white schools still pre-
dominantly white in a system like Dayton that is about 50-50
and all formerly black schools are prodminantly black. Then,
there are quite a few shades of lingering identifiability in my
opinion is what I am saying.
Q. This is the third time you have testified in this litigation,
is it not, Dr. Foster?
A. I think so.
Q. And do you recall testifying last spring in this case
saying, “Well, I think in the final analysis, racial identifiability
depends on the individual court’s judgment, but my definition
in a system that approaches 50 percent black and white would
be any school that falls outside drastically plus or minus 15
percent from the mean at any given level.”
A. That sounds reasonable that I so testified, yes, sir.
Q. And do you still feel that is a reasonable definition?
A. Yes, sir.
[R. III. 252] Q. Is it your feeling that in order for a
plan of desegregation to be appropriate, there must be an
approximate racial balance in every school in the system?
A. No, sir, not necessarily.
[R. III. 255-256] Q. Under your definition of racial iden-
tifiability, would it be fair to say that in the Dayton system
if each school had a one-third to two-thirds proportion of either
race, you would not consider the school to be racially iden-
tifiable?
vy)
443
A. That would depend on other circumstances also such
as faculty assignment, the sort of situation that I described
in option B of Dr. Gordon’s plan. Numerically, you are right.
I would consider those schools not to be racially identifiable,
but when coupled with the sort of problem that has been
described in option two of the high school plan, then I would
have some doubt.
Q. If you get beyond simply numerical consideration of
proportions so that you have a mixture of black and white
students in a school, don’t you get into situations that any
school in a black neighborhood is going to have a certain
type of perception or any school that has a certain name of
past history is going to have a certain type perception?
A. It has not been my experience, no, sir, in desegregated
systems. I think after a couple of years the public and the
school people, the pupils, everybody tends to begin to per-
ceive of schools as just schools and not as black schools or
white schools.
AA
X. RELEVANT PARTS OF THE RECORD OF FOUR
VOLUMES TRANSCRIBED DURING THE REMAND
HEARING HELD IN DISTRICT COURT IN NOVEM-+
BER OF 1977 (R. IV.).
A. COURT AND COUNSEL COMMENTARY.
[R. IV. 13-17, Vol. 1] THE COURT: Mr. Greer, you did
not. The thing that I took exception to was the notion that
there was some agreement to which the plaintiffs were not
party, and this article seemed to indicate that this might be
an issue that you wanted to raise, and I simply wanted to
foreclose the raising of that issue, namely a determination in
your absence, and I say again there was no arrangement of
any sort.
Now, if you have incorrectly interpreted the Court’s order
the opportunity for the plaintiffs to bring that to my attention
has always been present.
MR. GREER: Certainly.
THE COURT: Im simply not going to address myself to
that question. I was raising this for a somewhat different
purpose. I thank you, Mr. Greer, because frankly I had
forgotten. There are proceedings in this case you gentlemen
are more familiar with than I am. It’s been a long time since
this started. I sometimes feel I was a young man when it
began, but it was a limited purpose that I raised this question
at this time.
All right. One last observation, gentlemen, I am assuming
that the representations made to me by the plaintiffs as to
time, that I may rely upon it. I have set aside four days for
this case, and I would ask only that it not be a recapitulation
of the previous hearing held five years ago. I think the thrust
of the inquiry is set forth by the Supreme Court. I am in-
terested in specific instances.
I think, Mr. Lucas, that as I reread the record you and I
differed on a distinction that I tried to draw between motive
and intent, and I still adhere to my position. I think the
en ees
445
intent — evidence regarding intent is certainly admissible and
I will welcome it. Evidence regarding motive, whether it was
a motive of good purpose or bad purpose, really is not of
significance to me. Let me give you a specific example, which
I would say to you that I was somewhat troubled again by
newspaper stories that the plaintiffs were prevented from
presenting evidence of intent.
If, for example, it was a Board policy to have only black
teachers teach black students, the intent of that may well be
segregated in results. The argument by the plaintiffs that
their motive in doing that was to give black students an inferior
education as against the beneficent motive of the defendant
who would assert, well, we were doing this because we felt
that black teachers would provide an excellent example. I’m
really not interested in either position. I am interested or
might be interested in the fact of what was done and what
segregative effect that it had.
Okay, with those preliminaries out of the way, gentlemen,
Mr. Lucas, I will hear from you.
MR. LUCAS: Perhaps it might be helpful, your Honor,
if I commented on your Honor’s statement. I agree with the
Court entirely that there is a difference between evil motive
or motive of whatever nature and intentional action, and I
think the Supreme Court in all of the cases has talked about
the intent required as being an intentional doing of the act and
a foreseeable consequences test.
However, I would suggest that the Court consider the ques-
tion of the evil motive, since it has been specifically addressed
by the United States Supreme Court in the Wright vs. City of
Emporia, where Mr. Justice Stewart said the existence of an
evil motive may aggravate and make more plain the nature of
the constitutional violation and make the invidious nature of
the discrimination more binding, more lasting, and required
greater remedy. I don’t have the specific page cite, but I
would be happy to supply it to the Court. So I do think it
is relevant.
I will be the first to concede, your Honor, that some of the
446
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