Appendix — Cleveland Board of Education v. Robert Anthony Reed, III
Supreme Court brief1980
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CLEVELAND BOARD OF EDUCATION, et al.,
Petitioners,
Ve
ROBERT ANTHONY REED, III, et al.,
Respondents.
i
INDEX TO APPENDIX
Page
Judgment of the United States Court of Appeals for
the Sixth Circuit entered on August 23, 1979... 1
Opinion of the United States District Court dated
Se a AT
Opinion of the United States District Court dated
Fenrunry 6 7976. ks 243
~ = eee
1
Nos. 76-2602-04, 78-3156-57
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ROBERT ANTHONY REEp III, et al.,
egies APPEAL from the
Plaintiffs-Appellees, United States Dis-
. trict Court for the
Northern District of
JaMEs A. Ruopes, et al., Ohio, Eastern Divi-
sion.
Defendants-Appellants. |
Decided and Filed August 23, 1979.
Before: Epwarps, Chief Judge, and Livety and
ENGEL, Circuit Judges.
Epwarps, Chief Judge. In this opinion we review the
findings of the District Judge and a lengthy record of trial
in a case charging the Cleveleand Board of Education and
the State Board of Education of Ohio with operating a
school system which was unconstitutionally segregated on
the basis of race. The District Judge found that in 1973,
when this case was filed, the Cleveland School Board was
operating such a dual school system:
In 1973, the District maintained 170 regular ele-
mentary, junior high, and senior high schools for its
pupils, approximately 57% of whom were black. Of
these 170 schools, 67 had student populations which
were 90-100% white and 83 had student populations
which were 90-100% black. Moreover, approximately
92% of all black students in the system attended one
2
or another of these 83 virtually all-black schools. De-
fendants have conceded the existence of systemwide
segregation in the Cleveland School District.
Reed v. Rhodes, 455 F.Supp. 546, 553 (N.D. Ohio
1978). [hereinafter Reed Ii. |
The District Judge recognized, however, that statis-
tical proofs of segregated schools, absent intentional segre-
gation on the part of school authorities, did not constitute
violation of the Fourteenth Amendment’s prohibition
against denial of the equal protection of the law. On the
issue of the Cleveland School Board’s intentions during
the years preceding the year of trial, 1973, he found,
“proof of systemwide constitutional violations [which]
supports a finding that the Cleveland school officials are
operating a dual school system, entitling plaintiffs to com-
prehensive systemwide relief.” Reed II, supra at 552.
The District Judge’s lengthy opinions reviewed over
200 school board policies, plans, decisions and episodes
which he found to represent intentional segregation. With
reference to the Supreme Court’s then most recent school
segregation decision, Dayton Board of Education v. Brink-
man, 433 U.S. 406 (1977), he held that “The ‘segregative
effect . . . on racial distribution’ [Dayton, supra at 420]
extends chronologically and geographically throughout
the district.” Reed II, supra at 552.
Our independent review of this record demonstrates
that it supports findings of intentional segregative prac-
tices having substantial systemwide effect. We affirm both
the liability finding and the District Judge’s holding that
the plaintiffs are entitled to systemwide relief against the
Cleveland School Board for the unconstitutional practices
found herein.
The District Judge also found that in 1964 the Cleve-
land Board of Education was operating a dual school
system consisting of schools for black children and schools
3
for white children. He also fourd that from 1964 down to
the date of trial, the School Board had a clear duty to de-
segregate the admittedly segregated school system it was
operating in 1964. He further found that in the succeeding
years the School Board not only did not act to desegregate
the schools, but on the contrary, acted so as to “exacer-
bate” segregation. Reed v. Rhodes, 422 F. Supp. 708, 792
(N.D. Ohio 1976) [hereinafter Reed I.] He termed the
Board’s policies as “containment” of black students and
found them to be intentional and to have a systemwide
impact. Reed II, supra at 556-57; Reed I, supra at 722,
726-27, 739, 759, 762, 769, 773, 782, 784, 788.
Our review of this record supports the District Judge’s
findings of fact in this regard and we find no fault in his
conclusions of law, as stated above. The findings of fact
certainly cannot be termed clearly erroneous, and the con-
clusions of law which pertain to his 1973 findings and his
1964 findings are both entirely consistent with the opinions
of the Supreme Court in Columbus Board of Education v.
Penick, 47 U.S.L.W. 4924 (U.S. July 2, 1979), and Dayton
Board of Education v. Brinkman, 47 U.S.L.W. 4944 (U.S.
July 2, 1979). In the Columbus case, in his opinion for the
Court, Justice White said:
[T]he District Court repeatedly emphasized that
it had found purposefully segregative practices with
current, systemwide impact. 429 F. Supp., at 252,
259-260, 264, 266; Pet. App. 95; 583 F. 2d, at 799.
And the Court of Appeals, responding to similar argu-
ments, said:
“School board policies of systemwide appli-
cation necessarily have systemwide impact. 1)
The pre-1954 policy of creating an enclave of
five schools intentionally designed for black stu-
dents and known as ‘black’ schools, as found by
the District Judge, clearly had a ‘substantial’ —
indeed, a systemwide — impact. 2) The post-
1954 failure of the Columbus Board to desegre-
q
gate the school system in spite of many requests
and \‘emands to do so, of course, had systemwide
impact. 3) So, too, did the Columbus Board’s
segregative school construction and siting policy
as we have detailed it above. 4) So too did its
student assignment policy which, as shown above,
produced the large majority of racially identifi-
able schools as of the school year 1975-1976. 5)
The practice of assigning black teachers and ad-
ministrators only or in large majority to black
schools likewise represented a systemwide policy
of segregation. This policy served until July 1974
to deprive black students of opportunities for
contact with and learning from white teachers,
and conversely to deprive white students of simi-
lar opportunities to meet, know and learn from
black teachers. It also served as discriminatory,
systemwide racial identification of schools.” 583
F. 2d, at 814.
Nor do we perceive any misuse of Keyes [ Keyes v.
School District No. 1, 413 U.S. 189 (1973) ], where we
held that purposeful discrimination in a substantial
part of a school system furnishes a sufficient basis for
an inferential finding of a systemwide discriminatory
intent unless otherwise rebutted, and that given the
purpose to operate a dual school system one could
infer a connection between such a purpose and racial
separation in other parts of the school system. There
was no undve reliance here on the inferences permit-
ted by Keyes, or upon those recognized by Swann
[Swann v. Charlotte-Mecklenburg Board of Educa-
tion, 402 U.S. 1 (1971) ]. Furthermore, the Board was
given ample opportunity to counter the evidence of
segregative purpose and current, systemwide impact,
and the findings of the courts below were against it
rig cla sa a 429 F. Supp., at 260; Pet. App. 95,
02, 105.
Columbus Board of Education v. Penick, supra at 4928
(footnotes omitted ).
If we substitute Cleveland for Columbus in the Su-
preme Court language quoted above, and substitute in
5
numbered sentence 1) “an east side enclave of many
schools” for the phrase “an enclave of five schools,” and in
numbered sentence 2), substitute “post-1964” for. “post-
1954,” and in numbered sentence 4), the school years “1973
and 1975” for the school year “1975-1976,” the paragraph
approved from this court’s Columbus opinion becomes di-
rectly applicable to the Cleveland case.
When we turn to the defendant State Board of Educa-
tion, the stiuation we find in the Cleveland case again
parallels that which we found in the Columbus case.
On the heels of the Supreme Court decision in Dayton
Board of Education v. Brinkman, 433 U.S. 406 (1977), this
court remanded the original liability findings of the District
Judge for reconsideration under the standards mandated
therein. The District Judge chose to respond to this court’s
remand by joining his response with his remedial orders.
In the year which intervened, this court was required to
deal with the Dayton standards as they apply to the ques-
tion of state liability in somewhat greater detail and
specificity:
While we believe that what we have quoted from
the District Judge’s opinion must be regarded as a
general finding of intentional support of segregation
by the State Board, it may well be argued that the
Dayton opinion requires more detailed findings of fact
pertaining to 1) the State Board’s knowledge (if any)
of the Columbus Board’s intentional segregative prac-
_ tices, 2) the State Board’s failure to protest or restrain
them by withholding funds, 3) the State Board’s con-
tinuance of support in the face of such knowledge,
4) the motivation of the State Board in failing to in-
vestigate the reasons for de facto segregation, and 5)
the effect of findings if any, under 1, 2, 3 and 4 above,
as suggested in Dayton, supra at 420. ty
Penick v. Columbus Board of Education, 583 F. 2d
787, 818 (6th Cir. 1979), aff'd 47 U.S.L.W. 4924 (U.S.
July 2, 1979). :
ee
While in some respects the findings of segregative
purpose on the part of the state serve to meet the Dayton
requirements, Dayton appears to us to negate a state lia-
bility finding entered principally on the ground of failure
of the state to compel iis subdivision to comply with the
United States Constitution. As we have indicated in the
Columbus opinion, knowledge by the state of intentional
segregative practices on the part of the local board and
intentional support of the local board in pursuing such
practices appear to be requirements for a finding of con-
stitutional violation. For these reasons, the question of state
board liability is again remanded to the District Court for
answers to the questions posed in Penick v. Columbus
Board of Education, and quoted above.
THE LEGAL BACKGROUND OF THIS CASE
This court has recently reviewed the history of the
concept of equality before the law from the Declaration
of Independence down to 1954, when Brown v. Board of
Education, 347 U.S. 483 (1954), was decided. See Penick
v. Columbus Board of Education, 583 F.2d 787, 789-91
(6th Cir. 1978), aff'd 47 U.S.L.W. 4924 (U.S. July 2, 1979).
In that same opinion we also set forth the fundamental
Supreme Court law on school segregation as it has devel-
oped from Brown to Dayton Board of Education v. Brink-
man, 433 U.S. 406 (1977).
This latter review is directly applicable to our present
case. The Supreme Court opinion in Brown I held that the
general constitutional guarantee of “equal protection of
the laws” must be applied to public education:
The language of the opinion was simple and di-
rect. The opinion of the Court in Brown v. Board of
Education, (henceforth Brown I, supra) said:
We must consider public education in the
light of its full development and its present place
7
in American life throughout the Nation. Only in
this way can it be determined if segregation in
public schools deprives these plaintiffs of the
equal protection of the laws.
Today, education is perhaps the most im-
portant function of state and local governments.
Compulsory school attendance laws and the great
expenditures for education both demonstrate our
recognition of the importance of education to our
democratic society. It is required in the perform-
ance of our most basic public responsibilities,
even service in the pore forces. It is the very
foundation of good citizenship. Today it is a prin-
cipal instrument in awakening the child to cul-
tural values, in preparing him for later profes-
sional training, ae 9 in helping him to adjust
normally to his environment. In these days, it is
doubtful that any child may reasonably be ex-
pected to succeed in life if he is denied the oppor-
tunity of an education. Such an opportunity,
where the state has undertaken to provide it, is a
right which must be made available to all on
equal terms.
We come then to the question presented:
Does segregation of children in public schools
solely on the basis of race, even though the physi-
cal facilities and other “tangible” factors may
be equal, deprive the children of the minority
group of equal educational opportunities? We
believe that it does.
Id. at 492-93.
The opinion of the Court then proceeded to over-
rule Plessy v. Ferguson, [163 U.S. 537 (1896) ]. The
dispositive sentences were:
We conclude that in the field of public edu-
cation the doctrine of “separate but equal” has no
place. Separate educational facilities are inherent-
ly unequal. Therefore, we hold that the plaintiffs
and others similarly situated for whom the actions
have been brought are, by reason of the segrega-
tion complained of, deprived of the equal pro-
tection of the laws guaranteed by the Fourteenth
Amendment.
Brown I, supra at 495.
Twelve years later, after great resistance to de-
segregation and many delays in carrying out the
Supreme Court’s ruling, the Court handed down
Green v. County School Board, 391 U.S. 430 (1968).
The opinion by Justice Marshall said:
The burden on a school board today is to
come forward with a plan that promises realisti-
cally to work, and promises realistically to work
now
Id. at 439 (emphasis in original).
Three years later, Chief Justice Burger (again for
a unanimous Court) wrote in Swann v. Charlotte-
Mecklenburg Board of Education, 402 U.S. 1 (1971):
The objective today remains to eliminate
from the public schools all vestiges of state-im-
posed segregation.
Id. at 15.
oO o a
In Green, we pointed out that existing policy
and practice with regard to faculty, staff, trans-
portation, extracurricular activities, and facilities
were among the most important indicia of a segre-
gated system. 391 U.S., at 435. Independent of
student assignment, where it is possible to iden-
tify a “white school” or a “Negro school” simply
by reference to the racial composition of teachers
and staff, the quality of school buildings and
equipment, or the organization of sports activi-
ties, a prima facie case of violation of substantive
constitutional rights under the Equal Protection
Clause is shown.
Id. at 18.
In Swann the District Judge's opinion referred to
a white/black ratio of 71-29%. As to this the opinion
of the Court said:
a eee
9
If we were to read the holding of the Dis-
trict Court to require, as a matter of substantive
constitutional right, any particular degree of ra-
cial balance or mixing, that approach would be
disapproved and we would be obliged to reverse.
The constitutional command to desegregate.
schools does not mean that every school in every
community must always reflect the racial com-
position of the school system as a whole.
We see therefore that the use made of mathe-
matical ratios was no more than a starting point
in the process of shaping a remedy, rather than
an inflexible requirement. From that starting
point the District Court proceeded to frame a de-
cree that was within its discretionary powers, as
an equitable remedy for the particular circum-
stances. As we said in Green, a school authority's
remedial plan or a district court’s remedial decree
is to be judged by its effectiveness. Awareness of
the racial composition of the whole school system
is likely to be a useful starting point in shaping a
remedy to correct past constitutional violations.
In sum, the very limited use made of mathemati-
cal ratios was within the equitable remedial dis-
cretion of the District Court.
Id. at 25 (footnote omitted).
Chief Justice Burger then turned to the publicly
disputed question of bus transportation as part of a
desegration plan:
The importance of bus transportation as a
normal and accepted tool of education policy is
readily discernible in this and the companion case,
Davis [v. Board of School Commissioners, 402
U.S. 33 (1971)]. The Charlotte school authorities
did not purport to assign students on the basis of
geographically drawn zones until 1965 and then
they allowed almost unlimited transfer privileges.
The District Court’s conclusion that assignment
of children to the school nearest their home serv-
ing their grade would not produce an effective
10
dismantling of the dual system is supported by
the record.
Id. at 29-30 (footnote omitted ).
The Swann opinion dealt more thoroughly than
any other opinion of the Court with the method of
proof of constitutional violations and the Court’s
remedial powers: when such violations were found. It
will be quoted extensively later in this opinion. For
the moment, we conclude this digest of Swann with
two of Chief Justice Burger's most meaningful sen-
tences:
As with any equity case, the nature of the viola-
tion determines the scope of the remedy. In de-
fault by the school authorities of their obligation
to proffer acceptable remedies, a district court
has broad power to fashion a remedy that will
assure a unitary school system.
Id. at 16.
Until the 1970's school desegregation cases were
largely limited to Southern states. Then came a case
where unconstitutional segregation had been found in
the Park Hill district of Denver, Colorado. In Keyes
v. School District No. 1, 413 U.S. 189 (1973), Justice
Brennan wrote:
Nevertheless, where plaintiffs prove that the
school authorities have carried out a systematic
program of segregation affecting a substantial
portion of the students, schools, teachers, and
facilities within the school system, it is only com-
mon sense to conclude that there exists a predi-
cate for a finding of the existence of a dual school
system. Several considerations support this con-
clusion. First, it is obvious that a practice of con-
centrating Negroes in certain schools by structur-
ing attendance zones or designating “feeder”
schools on the basis of race has the reciprocal
effect of keeping other nearby schools predomi-
nantly white. Similarly, the practice of building
a school — such as the Barrett Elementary School
Oth cA OEE ce
ne ae See San ee
1l
in this case — to a certain size and in a certain
location, “with conscious knowledge that it would
be a segregated school,” 303 F. Supp., at 285,
has a substantial reciprocal effect on the racial
composition of other nearby schools.
Id. at 201-02 (footnote omitted).
a oO —
In short, common sense dictates the conclu-
sion that racially inspired school board actions
have an impact beyond the particular schools
that are the subjects of those actions.
Id. at 203.
Q o cm
[W]e hold that a finding of intentionally segre-
gative school board actions in a meaningful por-
tion of a school system, as in this case, creates a
presumption that other segregated schooling
within the system is not adventitious. It estab-
lishes, in other words, a prima facie case of un-
lawful segregative design on the part of school
authorities, and shifts to those authorities the
burden of proving that other segregated schools
within the system are not also the result of inten-
tionally segregative actions.
Id. at 208.
The importance of intentional discrimination, as
opposed to discriminatory impact from racially neutral
causes, was further emphasized by the Supreme Court
in Washington v. Davis, 426 U.S. 229 (1976), where
the Court, in an employment discrimination case, said:
The central purpose of the Equal Protection
Clause of the Fourteenth Amendment is the pre-
vention of official conduct discriminating on the
basis of race. It is also true that the Due Process
Clause of the Fifth Amendment contains an equal
protection component prohibiting the United
States from invidiously discriminating between
individuals or groups. Bolling v. Sharpe, 347 U.S.
497 (1954). But our cases have not embraced the
12
proposition that a law or other official act, with-
out regard to whether it reflects a racially dis-
criminatory purpose, is unconstitutional solely
because it has a racially disproportionate impact.
Id. at 239 (emphasis in original).
[I]n Dayton Board of Education v. Brinkman, 433
U.S. 406 (1977), the Supreme Court reemphasized
the component of intentional discrimination which
had been stressed in Keyes and the necessity for
matching the scope of the remedy to the nature of the
violation which had been outlined in Swann:
The duty of both the District Court and the
Court of Appeals in a case such as this, where
mandatory segregation by law of the races in the
schools has long since ceased, is to first deter-
mine whether there was any action in the conduct
of the business of the school board which was in-
tended to, and did in fact, discriminate against
minority pupils, teachers, or staff. Washington v.
Davis, supra. All parties should be free to intro-
duce such additional testimony and other evi-
dence as the District Court may deem appro-
priate. If such violations are found, the District
Court in the first instance, subject to review by
the Court of Appeals, must determine how much
incremental segregative effect these violations had
on the racial distribution of the Dayton school
population as presently constituted, when that
distribution is compared to what it would have
been in the absence of such constitutional viola-
tions. The remedy must be designed to redress
that difference, and only if there has been a sys-
temwide impact may there be a systemwide
remedy. Keyes, 413 U.S., at 213.
Dayton, supra at 420.
We note that in the Dayton case Justice Rehn-
quist’s opinion cites with approval every case except
one which we have quoted “| Diy Indeed, in the long
history of the United States Supreme Court desegre-
gation law which has been written since 1954, no case
has purported to overrule or cast in doubt any of the
ee wen
eT ne teeter Sanna
Nal a ee ea 4. tn PM Mae
13
prior precedents which began with Brown v. Board
of Education.
Penick vy. Columbus Board of Education, supra at
792-94.
In the Supreme Court’s opinion in Columbus Board of
Education v. Penick, supra, the language employed proves
to be again specifically applicable to our present case and
represents a definitive statement of school desegration law
which we, of course, are required to follow:
The Board insists that, since segregated schooling
was not commanded by state law and since not all
schools were wholly black or wholly white in 1954,
the District Court was not warranted in finding a dual
system.” But the District Court found that the “Colum-
° Both our dissenting Brethren and the separate concurrence
put great weight on the absence of a statutory mandate or author-
ization to discriminate, but the Equal Protection Clause was aimed
at all official actions, not just those of state legislatures. “[N]o
agency of the State, or of the officers or agents by whom its powers
are exerted, shall deny to any person within its jurisdiction the
equal protection of the laws. Whoever, by virtue of public position
under a State government, . . . denies or takes away the equal
protection of the laws . . . violates the constitutional inhibition;
and as he acts in the name and for the State, and is clothed with
the State’s power, his act is that of the State.” Ex parte Virginia,
100 U.S. 339, 347 (1880). Thus, in Yick Wo v. Hopkins, 113 U.S.
356 (1886), the discriminatory application of an ordinance fair on
its face was found to be unconstitutional state action. Even actions
of state agents that may be illegal under state law are attributable
to the State. United States v. Price, 383 U.S. 787 (1966); Screws v.
United States, 325 U.S. 91 (1945). Our decision in Keyes v. School
Dist. No. 1, 413 U.S. 189 (1973), plainly demonstrates in the
educational context that there is no magical difference between
segregated schools mandated by statute and those that result from
local segregative acts and policies. The presence of a statute or
ordinance commanding separation of the races would ease the
plaintiff's problems of proof, but here the District Court found that
the local officials, by their conduct and policies, had maintained a
dual school system in violation of the Fourteenth Amendment. The
Court of Appeals agreed, and we fail to see why there should be
a lesser constitutional duty to eliminate that system than there
would have been had the system been ordained by law.
14
bus Public Schools were officially segregated by race
in 1954,” Pet. App. 94 (emphasis added); and in any
event, there is no reason to question the finding that
as the “direct result of cognitive acts or omissions”
the Board maintained “an enclave of separate, black
schools on the near east side of Columbus.” 429 F.
Supp., at 236. Proof of purposeful and effective main-
tenance of a body of separate black schools in a sub-
stantial part of the system itself is prima facie proof
of a dual school system and supports a finding to this
effect absent sufficient contrary proof by the Board,
which was not forthcoming in this case. Keyes, supra,
at 203."
Columbus Board of Education v. Penick, supra at
4925-26. (Footnote 6 omitted ).
THE EVIDENCE OF INTENTIONAL SEGREGATION
The critical question in this case, as in the Columbus
case, is whether or not the Cleveland Board’s policies were
intentionally segregative.
As we noted on the first page of this opinion, defend-
ants concede the segregated character of the Cleveland
‘It is argued that Dayton Board of Education v. Brinkman (1),
433 U.S. 406 (1977), implicitly overruled or limited those portions
of Keyes and Swann approving, in certain circumstances, inferences
of general, systemwide purpose and current, systemwide impact
from evidence of discriminatory purpose that has resulted in
substantial current segregation, and approving a systemwide
remedy absent a showing by the defendant of what part of the
current imbalance was not caused by the constitutional breach.
Dayton I does not purport to disturb any aspect of Keyes and
Swann; indeed, it cites both cases with approval. On the facts
found by the District Court and affirmed by the Court of Appeals
at the time Dayton first came before us, there were only isolated
instances of intentional segregation, which were insufficient to give
rise to an inference of systemwide institutional purpose and which
did not add up to a facially substantial systemwide impact. Dayton
Board of Education v. Brinkman (II), post, at —.
15
schools. The sole question, therefore, is whether the un-
disputed segregation established in this record was inten-
tionally created by actions of defendants or their predeces-
sors in office.
1) The Statistics of Segregation. In his opinion finding
for the plaintiffs, the District Judge first noted the statis-
tically segregated character of the Cleveland schools:
During at least the last 20 years, patterns of racial
isolation in the Cleveland public school system have
become steadily more pronounced. This situation is
illustrated by a review ot the percentage of all students
attending regular Cleveland Public schools whose
school was a one-race school:
1940: 88.37%
1950: 74.09%
1955: 71.55%
1960: 79.09%
1970: 86.07%
1975: 88.21%
Looking only to the above statistics, one could reason-
ably conclude that the Cleveland school system was in
essentially the same postion with respect to racial
integration in both 1940 and 197:5. A single statistical
measure seldom is a full representation of an actual
situation. In trying to understand racial patterns in the
recent history of the Cleveland public school system,
another measure sheds additional light on the subject.
Examining the percentage of black students attend-
ing regular schools which were one-race schools in
various years indicate that from 1940 to 1974, there
was a steady trend toward concentration of black
students in segregated schools:
1940: 51.03%
1950: 58.08%
1955: 57.72%
1960: 76.03%
1970: 90.00%
1975: 91.75%
16
These figures show that with one exception, the pro-
portion of black students in the Cleveland public
schools who have been regularly receiving their
education in an integrated setting has steadily di-
minished during the past 35 years.
Reed I, supra at 711. (Footnotes omitted. )
Analysis of this record also shows that in 1975, out of
a total of 175 schools, 71 schools were over 99% black,
while 48 other schools either had no black students at all
or fewer than 1% black students. As the District Judge
found, 92% of all black students in the Cleveland school
system were concentrated in “one race” (90% or more
black) schools. Reed I, supra at 711. Such a severely seg-
regated racial distribution in itself strongly suggests school
board policy rather than chance. We recognize, however,
the Board’s claims that these results flowed either from
the segregative policies of others or from its own “racially
neutral” neighborhood school policy, and we turn to ex-
amine the more specific evidence pertaining to Cleveland
Board intentions throughout the years concerning race
segregation.
2) The Segregation of Teachers. This record shows
that teacher assignment by race was a systemwide policy
up to the filing of this complaint — and beyond. The Dis-
trict Judge’s opinion said:
The Court found massive teacher segregation to
have been the rule in the Cleveland Public Schools for
the recent past and continuing at the time of trial.
During the period from 1969-1973, 84% of the black
elementary and junior high school teachers and 90%
of the black senior high school teachers taught in
schools which were 90% black in student enrollment.
The Court found that there was almost perfect cor-
relation between the race of a school’s student enroll-
ment and the race of its faculty. Thus, intentional
segregative faculty assignment directly touched every
school in the Cleveland system. The Court found that
17
the teacher assignment practices and policies of the
defendants constituted systemwide de jure segrega-
tion.
Reed II, supra at 566-67.
In his first opinion in this case, the District Judge
detailed the reasons for these conclusions:
FACULTY ASSIGNMENT
During the course of the trial, plaintiffs sought to
establish that the Cleveland School Board assigned its
faculty on the basis of race — black teachers to pre-
dominantly black schools and white teachers to
predominantly white schools. Numerous statistical
exhibits were offered into evidence by both plaintiffs
and the local board, from which the reasonable and
necessary inferences have been drawn.
In PX-341, plaintiffs listed all of the Cleveland
elementary schools in ascending order according to
their 1973 proportional black student enrollment. Also
listed was the number of black faculty members
assigned to that school for each year from 1969-73.
Presented in such a manner, the graphic impact of
PX-341 is both immediate and obvious: as a school’s
black student percentage increased, so too did the
number of black faculty assigned to that school.
As an example, in 1973, there were 17 elementary
schools with a black student enrollment of 11.64 or
less. All of these schools had either no black faculty
from 1969-73 or did not receive their first black
teacher during that period until 1973. Of these latter
schools, two had four black faculty members and the
remaining fifteen schools had no more than two.
At the other end of the spectrum, of the 30
elementary schools that were 100% black in 1973,
25 had at least 15 black faculty members.
This direct correlation between the racial compo-
sition of a school’s student body and that of its faculty
repeats itself with regard to both junior and senior
18
high schools. In 1972, there were 12 junior high
schools that were majority white and 15 junior high
schools that were majority black. The majority white
schools had a total of 55 black teachers while the
majority black schools had 475 black teachers.
Among the senior high schools, the pattern re-
mained unchanged. The six majority white schools
had 35 black teachers in 1972, while the six majority
black schools had 387 black teachers.
During the — in question (1969-72), at least
84% of the black elementary and junior high school
teachers and 90% of the black senior high school
teachers in the Cleveland public school system taught
in schools that had at least 90% black student enroll-
ments.
In the face of such overwhelming statistical evi-
dence, it is impossible to find such a vast disparity
in the racial composition of faculty to be adventitious.
The correlation between the racial makeup of a
school’s student body and its faculty is direct and con-
sistent. It can only be the result of a pattern and
practice by the local board of assigning teachers on
the basis of race.” Neither can there be any doubt
that this faculty assignment policy contributed sig-
nificantly to the racial identifiabi ity of the schools
involved.
The school board was adamant in its insistence
that exhibits such as PX-341 be updated to include
‘Such a conclusion is supported by the testimony of Mr.
Russell Davis, who served the Cleveland Board of Education in
various capacities over a period of 37 years. With regard to the
board’s assignment policy, Mr. Russell Davis stated:
“Well, I don’t know whether you want to call it policy or
custom or understanding or whatever it is, but if you were
black, you went to a school with a predominantly black
enrollment.” Tr. at 1585.
Mr. Davis stated that such policy continued at least until his
retirement in 1965.
Ae te
19
1975 figures for faculty assignment. Such additional
figures would reflect some progress made in the area
of face integration. Such progress is both necessary
and highly commendable. But board actions taken
after the initiation of this lawsuit are far less proba-
tive than policies followed for a significantly longer
period prior to the institution of legal proceedings.
The school board correctly asserts that teachers
are not a fungible commodity capable of random as-
signment. While it is true that most teachers are
certified in one area, that fact cannot be viewed as
responsible for the total racial imbalance that char-
acterized faculty assignments within the Cleveland
School system from 1969-72. Given the relative simi-
larity of curricula offered, particularly on the ele-
mentary school level, it is incomprehensible that a
better racial mix among the faculty could not have
been achieved.
By the same token, the shortage of qualified
teachers during the 1960s cannot be viewed as the
cause of the segregated condition of the Cleveland
school system’s faculty. That there were fewer teach-
ers available to be hired is of little relevance to the
assignment of those teachers already under the school
board’s employ. The board would argue that since it
was a “seller's market” and competition was keen
among local school boards for the limited supply of
teachers, the board was forced to accede to new
teachers’ requests for assignment to a_ particular
school. Implicit in this argument is the premise that
black teachers preferred to teach in black schools
and white teachers preferred assignment to white
schools. Nowhere in the record does this implication
leave the shadows of inference and emerge into the
cold light of fact. In addition the shortage of teachers
had significantly diminished by 1969, the commence-
ment of the period covered by PX-341. Finally, even
if the choice of assignment represented the quid pro
quo for a new teacher’s accepting a position in the
Cleveland system, such a bargain would have to yield
to the constitutional mandate of a unitary school
20
system. If the price for garnering a new teacher is
the perpetuation of a segregated faculty, then the
school board must look elsewhere, for the price is con-
stitutionally prohibitive.
The segregative nature of the school board’s as-
signment of principals need not be inferred since
such a policy was expressly admitted by the board.
The deliberate and calculated assignment of black
principals to black junior and senior high schools
was done in the name of creating “role models.” What-
ever its effect in that regard, such a policy clearly
added to the racial identifiability of the schools in-
volved. The board sought to ameliorate the segrega-
tive effect of this policy by assigning white assistant
principals in tandem with black principals. The fact
remains, however, that the assignment of black prin-
cipals to black schools is yet another board-created,
artificial indicia of a school’s racial identity.
It is important to note that the ability to identify
a “white” or “black” school merely by reference to the
racial composition of its faculty and administration
constitutes a prima facie violation of the e ual protec-
tion clause. Swann v. Charlotte-M dekloakure Board
of Education, 402 U.S. 1, 18, 91 S.Ct. 1267, 28 L.Fd.2d
994 (1971). Other courts have been quick to dismiss
the “role model” rationale as a basis for the assign-
ment of faculty and staff:
“Whether the Board’s excuse for this action, to
provide black role models for black students, is
the real motivation behind the staffing according
to race is legally irrelevant . . .
It is not contended by this court that minor-
ity role models are not important for minority
students. Racial and ethnic pride has its value.
But; in the constitutional scheme, a higher value
in the hierarchy is integration. Integration, and
the understanding it fosters, will provide both
black and white role models for both black and
white children.” Arthur v. Nyquist, 415 F.Supp.
904 (W.D.N.Y. 1976).
21
United States v. School District of Omaha,
ar ay 530, 538-39 (8th Cir. 1975), cert. denied
423 U.S. 946, 96 S.Ct. 361, 46 L.Ed.2d 289 (1975).
It should be noted that exhibits such as DX-1163-
65 reflect considerable pas in the area of facul
integration. Whether that task has been completed,
or is close to completion, is a question best left for
another day. How far the local oard has come, and
how far they may yet have to go, will be addressed
in the proceedings sure to follow in this action.
Reed I, supra at 786-88.
The Supreme Court has consistently held that assign-
ment of black teachers to black schools and white teachers
to white schools was an important indication of intentional
segregation because it helped mark the schools as black
or white. Swann v. Charlotte-Mecklenburg Board of Edu-
cation, 402 U.S. 1, 18 (1971); Green v. County School
Board, 391 U.S. 430, 435 (1968); Columbus Board of Edu-
cation v. Penick, 47 U.S.L.W. 4924, 4926 (U.S. July 2,
1979).
We believe the District Judge was correct in finding
that the Cleveland Board’s policy of teacher (and admin-
istrative ) assignment of black personnel to black schools
up to the filing of this case “contributed significantly to
the racial identifiability of the schools involved.” Reed I,
supra at 787.
3) Segregative Intent in School Site Selection and Con-
struction. The District Judge also found deliberate segre-
gative intent in the Cleveland Board’s site selection and
construction program for new schools and for additions
to existing schools. In his opinion on remand he said:
E. CONSTRUCTION OF
NEW SCHOOL FACILITIES
The placement of school facilities on particular
sites is an action with a singular capacity to mie
either integration or segregation. Few decisions made
22
by school officials are more irreversible. While school
officials are not required to predict correctly shifting
demographic patterns in every instance, they are re-
— to use reasonable prudence to avoid predict-
ably segregative decisions. The Court recognizes that
the task is more difficult in communities undergoing
rapid change than in settled neighborhoods. How-
ever, the evidence demonstrated conclusively that
these defendants made segregative building placement
decisions regardless of whether the surrounding com-
munity was settled or changing. Few schools were
sited so as to avoid the predictable result of racial
segregation. The Court found that in each of the
instances cited below the defendants built schools
which they knew would be racially segregated, and
intended such results. Segregative site selection com-
bined as here with segregative student assignment
policies and practices contributed to creation of a
segregated dual school system.
CONSTRUCTION
Record Evidence
Schools 422 Considered by
Involved Year F.Supp. the Court
116. Carver 1954 725 PX 16; 74; 128;
33-11; 323
117. Chestnut 1955 726-28 PX 275-33; 17;
74; 388-15;
323
118. Giddings 1970 758-59 PX 285-3; 28;
388-27; 389
119. Dike 1971 732 PX 276-8; 29;
388-23; 389
120. Williams 1951 737-38 PX 287-35; 14;
74; 388-83
121. Brewer 1955 738-39 PX 287-21; 17;
74; 388-9;
389; 323
122. Cranwood 1958 738-39 PX 291-2; 20;
74; 388-21;
389
Schools
Involved
123. deSauze
124.
125.
126.
127.
128.
129.
130.
131.
132.
133.
134.
135.
136.
Orr’
Attucks
Rockefeller
Ireland
Raper
Buckeye-
Woodland
Wade Park
Marion-
Sterling
Case
Morgan
Pasteur
Lake
Landis
1961
1963
770-71
770-71
770-71
770, 772
Record Evidence
Considered by
the Court
PX 287-22; 25;
74; 389
PX 289-41; 17;
74; 388-63;
389
PX 21; 74;
388-2; 389
PX 23; 74;
388-72; 389
PX 275-28; 24;
74; 323;
388-41; 389
PX 289-51; 23;
74; 388-68;
389
PX 29; 223; 389
PX 289-66; 390;
389
PX 389-390-
388-52; 323
PX 289-24; 389;
390; 388-12;
388-13
PX 293-69; 21;
74; 388-59;
389
PX 293-20; 21;
74; 388-65;
389
PX 293-66; 23;
74; 388-45;
389
PX 293-68; 74;
388-46; 389
24
Record Evidence
Schools 422 Considered by
Involved Year F.Supp. the Court
137. Howe 1965 770,772 PX 293-96; 389,
388-39
138. Forest Hill PX 293-48; 26;
Parkway 1968 774-76 389; 388-35
139. Bethune 1965 772 PX 338-6; 389;
271; TR
976-981;
1283-87;
1504-05
140. Eas* Clark PX 294-4; 390;
Relief 1975 779 389
141. Johnson 1955 780-81 PX 289; 17; 74
142. Brooklawn 1957 781-82 PX 298-2; 389;
19; 74; TR
2464-2465
F. ADDITIONS TO EXISTING SCHOOLS
Almost as irreversible as building a school in the
wrong place is the practice of expanding such a school
once it is in place. The defendants built hundreds of
new classrooms, ostensibly to relieve overcrowding
or to anticipate new enrollments. Each such decision
offered these defendants the option of locating the
addition so as to either promote or alleviate racial
segregation. Obviously, the decision to build an addi-
tion onto a school which is 100% black is a decision
to expand the number of black students contained on
that particular site. Such containment decisions not
only kept black schools black and white schools white
but they also prevented black (or white) students
from attending other schools. Thus, each segregative
building of a new school or addition to an existing
school has a predictable reciprocal impact. The Court
finds that the defendants built such additions to
further an overall scheme of racial segregation, to
prevent or reduce the likelihood of black and white
students attending school together. Illustrative of such
deliberately segregative decisions are those cited by
this Court and listed below.
eS ee ee aeaeewy
25
ADDITIONS
Schools 422
involved Year _—_—*F Supp.
143. Quincy 1940 731
144. Irving 1961 731
145. Gracemont 1949 736-37
146. Williams 1953 738
147. Gracemont 1958 740-41
148. Mt.Pleasant 1964 747
149. Wade Park 1954 753-55
150. Waring 1956 754
151. Orr 1956 754
152. Parkwood 1954 767-68
153. Holmes 1955 769
154. Holmes 1957 769
155. Doan 1957 769
156. Iowa-Maple 1963 . 774
157. East Clark 1960 1775
158. Brooklawn 1972 781
Reed II, supra at 561-62.
Record Evidence
Considered by
the Court
PX 284-1; 1; 74;
388-67
PX 275-29; 23;
74; 388-42
PX 287-27; 11
PX 287-36; 15;
74; 388-83
PX 287-30; 20;
74; 388-29;
389
PX 290-14; 271;
74; 388-69;
389
PX 289-56; 16;
74
PX 289-67; 18:
74; 389
PX 289-50; 18:
74; 389
PX 293-74; 16;
74; 388-64
PX 293-56; 293-
57; 17; 19;
74; 388-37;
389
PX 293-56; 293-
57; 17; 19;
74; 388-37;
389
PX 293-43; 19;
74; 388-24:
389
PX 293-63; 74:
388-40; 389
PX 294-2; 29.
74; 388-17
PX 298-4; 30;
223; 389;
TR 2464-65
26 27
atterns which, when combined with “neighborhood
iby fen este moter — .. gee eres soe further lock the school] system into the mold
by this record, to be highly significant both in supporting of separation of the races. Upon a proper showing a
the segregative intent findings of the District Judge and | district court may consider this in fashioning a
his finding of systemwide impact. remedy.
In ascertaining the existence of legally imposed
In the Swann opinion Chief Justice Burger commented
: 4 school segregation, the existence of a pattern of school
upon the importance of school construction policies:
The construction of new schools and the closing
of old ones are two of the most important functions
of local school authorities and also two of the most
complex. They must decide questions of location and
capacity in light of population growth, finances, land
values, site availability, through an almost endless
list of factors to be considered. The result of this will
be a decision which, when combined with one tech-
nique or another of student assignment, will deter-
mine the racial composition of the student body in
each school in the system. Over the long run, the
consequences of the choices will be far reaching.
People gravitate toward school facilities, just as
schools are located in response to the needs of people.
The location of schools may thus influence the pat-
terns of residential development of a metropolitan
area and have important impact on composition of
inner-city neighborhoods.
In the past, choices in this respect have been
used as a potent weapon for creating or maintaining
a state-segregated school system. In addition to the
classic pattern of building schools specifically intended
for Negro or white students, school authorities have
sometimes, since Brown, closed schools which ap-
peared likely to become racially mixed through
changes in neighborhood residential patterns. This
was sometimes accompanied by building new schools
in the areas of white suburban expansion farthest
from Negro population centers in order to maintain
the separation of the races with a minimum departure
from the formal principles of “neighborhood zoning.”
Such a policy does more than simply influence the
short-run composition of the student body of a new
school. It may well promote segregated residential
a a le
construction and abandonment is thus a factor of
great weight.
Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1, 20-21 (1971).
See also Columbus Board of Education v. Penick, 47
U.S.L.W. 4924, 4926-27 (U.S. July 2, 1979).
4) The School Board’s Cooperation in Building Segre-
gated Housing. Significant also on the issue of segregative
intent is the District Judge’s discussion and findings con-
cerning segregated housing and its relation to the Cleve-
land Board’s school construction program assisting such
housing construction:
HOUSING
The instant action was filed as related to housing
cases previously heard by this court. Plaintiffs’ counsel
felt that residential segregation was inextricably re-
lated to school segregation and the expertise devel-
oped during the housing cases would be a valuable
asset in evaluating the evidence to be presented in
this case.
That Cleveland is a residentially segregated city
is beyond dispute and conceded by all parties to this
action. Defendants argue that these residential pat-
terns are the result of outside forces beyond their
control and that they merely put schools “where the
children are,” as reflected by their purported neigh-
borhood school policy. Plaintiffs, on the other hand,
contend that this residential condition is merely one
facet in an overall policy of containment perpetrated
by city, state, and federal agencies, as well as factions
of the private real estate industry.
28
The role of the federal government in the crea-
tion and perpetration of segregated housing is docu-
mented in the Federal Housing Administration’s
(FHA) underwriting manual as it was distributed
during the 1930s. That document contained a bla-
tantly separationist policy as reflected by the admoni-
tion to FHA appraisers that they be aware of any
“infiltration of inharmonious racial or nationality
groups’ into a neighborhood. Such an incursion was
deemed to have an adverse effect and neighborhoods
were assured of receiving a high FHA rating only
if exclusionary devices such as zoning regulations and
restrictive covenants were prevalent in the area. The
FHA manual actually recommended that restrictive
covenants with regard to race be included in deeds.
Such restrictive covenants were judicially enforced
until such practice was decl:red unconstitutional in
Shelley v. Kraemer, 334 (US. 1, 68 S.Ct. 836, 92
L.Ed. 1161 (1948). Despite the Supreme Court ac-
tion, the FHA continued to recommend the use of
restrictive covenants until 1950. In that year, the
FHA did a complete about-face, and refused to fi-
nance properties subject to such restrictive covenants.
It was not until the 1962 Executive Order with regard
to equal opportunity in housing that restrictive cov-
enants were viewed as a cloud on the title and ex.
cepted by title companies in their policies, at least
until 1969. Thus, for a period approaching 20 years,
the federal government, through the FHA, was “the
leading exponent of racial discrimination in housing
and residential segregation” (TR. at 709).
No discussion of the Cleveland housing situation
would be complete without some mention of the role
of the Cuyahoga Metropolitan Housing Authority
(CMHA). That organization, and its policies, were
the subject of prior litigation in this court. See, e.g.,
Banks v. Perk, 341 F.Supp. 1175 (N.D. Ohio 1974)
wherein CMHA practices were found to have con-
tributed to the residentially segregated condition of
the city. The effects of such conduct extended far
beyond the walls of the individual housing estates,
A A Il it nase
29
In keeping with the local school board’s policy of
putting schools “where the children are,” several
tacilities were constructed to service public housing
estates."’ As might be expected, the racial composition
of such schools was the mirror image of their respec-
tive estates. The combination of CMHA’s discrimina-
tory housing policies and the school board’s construc-
tion program resulted in the creation of racially
identifiable schools.
The relationship between CHMA policies and the
Cleveland School Board is shown by PX-323. That ex-
hibit lists CMHA estates and the public schools that
service those estates. As previously noted, virtually
all of the schools reflect the racial composition of
their respective estates.
One of the first CMHA projects was Carver Park.
Built in 1942, it was 99.9% black in 1973. Hayes ele-
mentary school was 97.5% black at the time Carver
Park was opened and 100% black in 1973-74. Simi-
larly the 1970 addition to the Garden Valley estate
was 100% black when opened and 100% black in
1973. Chesnutt elementary school was 99% black in
1970 and 100% black in 1973. Grdina was 100% black
for those same years. The King Kennedy estate was
99% black at opening and 100% black in 1973 as was
Dike elementary school which services that project.
The Miles Heights estate and Brewer elementary
school as well as the Wilson estate and Ireland school
are additional examples of an overwhelming black
project being serviced by an overwhelmingly black
school. All of the above projects 2nd schools are
located on the east side of Cleveland.
The CHMA ai ones on the west side project the
same type of relationship. Lorain Square was 0%
black in 1973 as was Washington elementary school.
‘8 Charles Beard, planner for the City of Cleveland Planning
Commission, testified that assurances by school officials with regard
to the availability of classroom space was a prerequisite to federal
funding of public housing (TR. at 986-987).
30
The Park Denison project was 0% black in 1973 while
the Denison school was .1% black in 1973-74. This
racial correlation es itself for virtually all of the
27 CHMA projects listed in PX-323.
It is clear that the presence of racially segregated
public housing in conjunction with school boar pol-
icies operated to spawn racially segregated schools.
There can be little doubt that this result was the
natural, probable, foreseeable, and actual effect of the
school board’s “neighborhood school policy.”
The interrelation of housing and school patterns
has become an accepted fact of life, see e. g. Hart v. ©
Community School Board, 383 F.Supp. 699, 706
(E.D.N.Y. 1974), affd, 512 F.2d 37 (2d Cir. 1975).
Equally clear is the fact that a local school board can-
not use private discrimination to shield itself from an
allegation of exclusionary attendance areas, Brewer v.
School Board of City of Norfolk, 397 F.2d 37, 41-42
(4th Cir. 1968 (et. banc) ). See also, United States v.
School District of Omaha, 521 F.2d 530, 537 n. 11
(8th Cir. 1974), cert denied, 423 U.S. 946, 96 S.Ct.
361, 46 L.Ed.2d 280 (1975).
“when school officials have followed for at least
a decade a persistent course of conduct which
intentionally incorporated residential segregation
into that system’s schools that conduct is uncon-
stitutional, Morgan v. Hennigan, 379 F.Supp.
410, 470 gry 1974) affd 509 F.2d 580 (Ist
Cir. 1974), cert. denied 421 U.S. 963, 95 S.Ct.
1950, 44 L.Ed.2d 44 (1975).
Thus, the local school board actively contributed
to the racially segregated nature of the CMHA pro-
jects by agreeing to construct schools to service ” ial
projects knowing that those schools, as well as the
projects themselves were destined to be racially iden-
tifiable from their inception. In addition, the board
policy knowingly embodied existing residential seg-
regation that was the result of, among other things,
prior FHA policies and practices. Under such circum-
stances, the board’s “‘neighborhood school policy’
aM Cat te
31
was not, and could not be, racially neutral.” Arthur
v. Nyquist, 415 F.Supp. 904, 968 (W.D.N.Y. 1976).
“The school board should not be heard to plead
that its neighborhood school policy was racially
neutral when in fact ‘state action under the color
of law’ produced or helped to produce the seg-
regated neighborhoods in the first place.” Oliver
v. Kalamazoo Board of Education, 368 F.Supp.
143, 183 (W.D. Mich. 1973), aff'd 508 F.2d 178
(6th Cir. 1974), cert. denied 421 U.S. 963, 95
S.Ct, 1950, 44 L.Ed.2d 449 (1975).
The natural, probable, foreseeable, and actual effect of
the local school board’s application of the neighbor-
hood school policy was to create or perpetuate a seg-
regated school system. See United States v. Texas
Education Agency, 532 F.2d 380 (5th Cir. 1976).
Reed I, supra at 788-90.
We believe that the Cleveland Board’s willing acqui-
escence in the construction of one-race schools for other
public (or private) agencies that were building segregated
housing also represented systemwide proof of segregative
intent in the development of an admittedly segregated
school system.
5) The Board’s Segregative Intent as Shown by the
Use of Racially “Intact” Busing and the Segregation of
Black Children in “White” Schools. One of the Cleveland
Board's policies which seems in itself to speak volumes
about the intentions of the Board, concerns its method of
meeting the impossibly overcrowded condition of the
“black” schools in the Hough area in the years 1955-1961.
The District Judge’s opinions refer repeatedly to the
employment of devices referred to as “relay classes” and
“transportation classes.” Relay classes, as disclosed by this
record, represented the employment of overcrowded
schools on half-day shifts as far as the school children were
concerned, each shift, morning and afternoon, being 314
32
hours of classroom attendance. The transportation classes,
on the other hand, involved busing children from over-
crowded schools to less crowded schools. In many in-
stances the less crowded schools were white, but in this
period the classes from the black schools were kept “in-
tact. —a word which clearly was a euphemism for “segre-
gated” within the receiving school. And even after com-
munity protests had forced the Cleveland Board “to
diffuse” the transportation classes in the receiving schools
the black children were, not even in diffusion, accorded
equal protection of the law, as we will see below. On this
subject the District Judge said:
The vast majority of the schools that employed
relay classes had majority or predominantly black
student enrollments,” Similarly, almost all of those
schools that were forced to utilize “transportation
classes” were majority or predominantly black.
At trial, most of the plaintiffs’ evidence with re-
gard to the use of transportation classes involved the
tollowing schools during the indicated time periods:
Year Sending School Receiving School
1961 Chesterfield Murray Hill
1961 Columbia Murray Hill
1961 Doan Murray Hill
1961 Hough Murray Hill
1961 Orr Murray Hill
1961 Marion Rockefeller
1961-66 lowa-Maple _ Longfellow
1961-62 Holmes Longfellow
1961-63 Hazeldell Brett
1962-66 Hazeldell Memorial
1963-66 Hazeldell Murray Hill
1963 Pasteur Longfellow
1964-66 Iowa-Maple ___ Brett
1° Of the 26 schools with relay classes, 17 were 90-100% black,
3 were 60-90% black, and 5 were 0-10% black between 1955-6].
ee
33
In virtually all of the above cases, the gee
school was predominantly black, overcrowded, an
implementing relay classes. The receiving schools were
under-utilized and predominantly white. On its face,
besides being a highly practical, albeit educationally
inferior, answer to the problem of overcrowding, the
busing program initiated by the Board would also
appear to have been highly integrative. But like man
other integrative opportunities presented to the Board,
this one, although not ignored, was prostituted into a
segregative device.
From the time of the creation of transportation
classes on January 29, 1962 until March 10, 1964, such
classes were bused “intact.” The pupils involved
formed at their sending school and, complete with
teacher, were transported as a unit to the receiving
school. Once there, they remained “intact” forming
a single, separate, isolated, and insulated educational
unit. There was evidence presented that during this
period every attempt was made to keep the trans-
ported students separate from the remainder of the
student body at the predominantly white receivin
schools. Dr. Theobald of the Cleveland School iad
who took part in the organization and implementa-
tion of the busing program, and in fact made the
decision to bus the children intact, testified that this
degree of separation was required for “safety as well
as educational reasons.” It was not until March 10,
1964 that the local board, under severe pressure from
local civil rights groups such as the United Freedom
Movement, agreed to the cessation of intact busing
and the “diffusion” of the transported pupils through-
out the student body of the receiving school. This
marked the first time that the integrative potential of
the busing program had been tapped, but once again,
board action abrogated the beneficial effects of this
achievement of some degree of integration.
From the start, the busing program was consid-
ered a stop-gap measure to relieve overcrowding and
eliminate relay classes. The real answer, in the eyes
of the Board, lie’ [sic] in the creation of additional
34
school facilities. During the early 1960's, while trans-
portation classes were in effect, the Board was en-
gaged in a feverish school construction program, par-
ticularly in the Hough and Glenville areas. The need
for such construction, as well as its devastating racial
effects, is fully discussed in the detailed oul of
those areas, supra. Suffice it to say that black students
were bused intact, and then reluctantly diffused, only
until such time as additional, raciall impacted schools
could be built, and the tiaeiedted’: students restored
to their prior racially isolated condition of contain-
ment. It is not necessary to determine whether this
program of intact busing, standing alone, would be
a sufficient predicate for a finding of liability against
the local board, for it is but one facet of a “consistent
and deliberate policy of racial isolation and segrega-
tion, Amos v. Board of School Directors of the City
of Milwaukee, 408 F.Supp. 765, 819. (E.D.Wis. 1976).
Reed I, supra at 783-84.
We have compared these findings to the testimonial
record and find them fully supported. They certainly can-
not be found to be clearly erroneous.
We note appellants’ argument that the impact of the
relay class and intact busing policies had been “attenuated”
first by “diffusion” of black students in the receiving schools
and then by new school construction. The District Judge
found however, that the “diffusion” of black students in
the white receiving schools had been quite different from
desegregation. In fact, defendants’ witness Dr. Theobald
admitted that separation by race continued during “diffu-
sion” had hardly served to “attenuate” the “impact” of the
constitutional violation on her:
. I am going to ask you some questions about
the [1358] experiences that you had when you were
at Memorial Elementary School. Do you recall any of
those experiences? A.’ Yes.
Q. Now, when you were placed in the classroom
by the teacher, were the transportation students
35
placed in one particular area of the room? A. We
were at the back of the room.
Q. When you say “at the back,” were you placed
in one row or one section or how? A. Straight across
in a row.
Q. Now, the students that you recall that were
on transportation from Hazeldell and Memorial
Schools, were they black, white, integrated, or ex-
actly what was the racial composition, if you recall?
A. We were black, all black.
Q. Now, when you were in the third grade — I
believe you said 3-AP A. Yes.
Q. Were there any white kids that rode your
bus? A. No.
Q. Now, can you tell me of the treatment that
you received at Memorial from the teacher? A. Well,
at Memorial we were more or less, I guess that [1359]
they called it “harassed,” but we weren’t aware of
it back then. We were not allowed to particivate in
any of the activities of the receiving school because
we were just visitors, and we didn’t take gym. We
didn’t eat lunch —
Q. I will go into it specifically, but let me put
some questions to you: You said you were not per-
mitted to attend all school functions. Do you remem-
ber any all school assemblies during the time that
you were at Memorial? A. Yes; I remember some.
Q. Tell me about them. A. During Christmas
the neonle were caroling in the hallway, and the white
veoples was taken out of the room, and we were to
lay our heads down, or we had work to do.
Q. These were students in your class? A. Yes.
Q. And when vou sav, “We had to lay our heads
down,” who is “we”? A. The black students that were
transported to there.
QO. Who gave you instructions? A. The teacher
did.
Q. Did this hapnen on one occasion or more
than one? [1360] A. On manv occasions. We were
told to lay our heads down when they left the room.
ee eee Te Le ee ee
36
Q. Do you know where they went? A. Some-
times they went to gym or some type of recess, or
went to an assembly, whatever it was; and when it
was time for them to leave out of the room, we were
told to lay our heads down or do work.
Q. What work? A. Some type of work to keep
us occupied while they were out of the room.
Q. Do you recall takin while you were
at Memorial? A. No. core ale
Q. Did you ever recall any other students in
ais class taking gym while you were at Memorial?
. No.
Q. The white students that had been the ones
not on transportation, do you recall whether or not
they took gym? A. They did take gym.
Q. How do you know? A. Because a bell would
ring. This was after lunch, and certain days, I believe
Wednesday or some period during the week, and they
would leave. Then there was the ones that wanted to
look out [1361] of the window, and you could see
them out taking gym.
Q. Where did they take gym? A. In the play-
ground.
_ Q. And were the students on transportation per-
mitted to take gym? A. Not in my class, no.
P; — you were there, did you ever take
gym? A. No.
Q. How long were you there? A. About a year.
Q. Now, during the recess, or — strike that. Dur-
ing the lunch hour what did the students on trans-
portation do? A. Well, we were sitting across in a
row, which meant the white students were in front of
us, and we had to move to the right-hand side of the
room, and the whites moved to the lefthand side, and
we ate our lunch on the righthand side of the room.
Q. So the students were segregated during th
lunch hour? A. Right; yes, sir. ' ie
37
Since the District Judge did not base his principal
findings on this testimony, we quote it only as general sup-
port for his conclusion that the segregation practiced by
the Cleveland School Board in the early ’60s in the Hough
area had a continuing impact. This is particularly true
since the record establishes that the students who were,
like Flonnoy, “transported” and “diffused” returned
(when, as a result of new school construction, these poli-
cies ended ) to newly constructed 97% black schools. One
of the lessons which Cleveland’s black students learned
was that the Cleveland school system assigned them status
inferior to that given white students — regardless of the
American constitutional promise of “equal protection of
the laws.”
6) Segregative School Board Devices. The District
Judge in this case repeatedly referred in his two lengthy
opinions to a Cleveland School Board policy which he
described as “containment” of black students. We interpret
his use of this word as being his shorthand for description
of policies of intentional racial segregation. Over and
above the major School Board policies which have been
discussed in the first five numbered sections of this opinion,
the District Judge also discussed at great length individual
instances of the Cleveland School Board’s use of various
devices which had the effect of promoting racial segrega-
tion in the schools. These included the employment of
optional zones, boundary changes, special transfers, use
of private rental facilities and the use of portable class-
rooms.
By title alone these devices might appear to be normal
and wholly permissible school board administrative tactics.
But under each heading, particularly in his second opinion
on remand, the District Judge made specific findings of
intentional employment of each of these devices to effect
racial segregation. :
38
a) Optional Zones. As to the use of optional zones, the
District Judge found 36 instances where “the defendants
knew in each instance cited that the predictable result of
giving white or black students the option of attending
predominantly white or black schools would be student
choices which would create or intensify racial segrega-
tion.” He further held, “the Cleveland defendants default-
ed in meeting their constitutional obligation by the use of
a pattern of predictably segregative optional zones.” Reed
II, supra at 559-60.
We have reviewed each of his findings as to these
optional zones in both his original opinion and his opinion
on remand. While we might not have seen the facts
exactly as he has if we had been situated in the courtroom
and had heard the testimony, nothing in this record allows
us to say that his findings of segregative intent in relation
to the employment of these optional zones are clearly
erroneous.
b) Boundary Changes. As to boundary changes, the
District Judge found:
In 53 instances involving a total of 43 schools, the
Court found that the defendants made changes in
boundaries in a manner which, predictably, resulted
in racial segregation. The information available to the
defendants at the time they acted was such that the
segregation created was determined by the Court to
be deliberate and also avoidable. In some instances
the boundary changes created segregation where none
previously existed. In other instances, the changes
intensified a racial identifiability which was known, or
should have been known, to exist by the defendants.
In the face of the evidence submitted, and the failure
of the defendants to offer credible racially neutral
explanations for the resulting segregation, the Court
found each of the following boundary changes to
have been acts of de jure segregation. [The District
39
Judge listed 53 instances of boundary changes involv-
ing 43 schools. |
Reed II, supra at 558-59.
In these instances also we make the same comments,
namely, that our review of the Judges’ two opinions against
the lengthly record of this trial does not provide any basis
for our holding that the 53 instances at 43 schools de-
scribed by the Judge as representing boundary changes
which were acts of intentional segregation was clearly
erroneous.
c) Special Transfers. The District Judge found that
the policy of the Cleveland School Board to allow indi-
vidual students on application to transfer from one school
to another was “a significant factor in the shift in enroll-
ment patterns in junior and senior high schools during the
period 1965 to 1970.” Reed II, supra at 558-59. He found
that the special transfer policy was employed so as to
allow white students to transfer from predominantly black
junior and senior high schools to predominantly white
junior and senior high schools, and that while the yearly
number of such transfers was intentionally segregative on
the part of the Board. His findings are not clearly erroneous.
d) Use of Private Rental Facilities and Portable Class-
rooms. The District Judge also found that on a significant
number of occasions — 18 in all — the Board employed the
use of rental facilities or portable units “to either create
or intensify existing racial segregation.” Reed II, supra at
564. In many of these instances he found that the portables
or rental units were employed by the Board to increase
the capacity of black schools at a time when white schools
within feasible distance had underutilized capacity.
Again, our review of the record does not allow these
findings to be held to be clearly erroneous.
40
APPELLANTS’ ARGUMENTS
What has been said above appears to us to respond
to all except two appellants’ arguably meritorius argu-
ments. The remaining matters which require comment
are appellants’ contentions 1) that the District Judge mis-
used School Board school capacity figures, and 2) that he
employed in some instances distance measurements with-
out identifying the source, which measurements varied
from and served to contradict testimony of School Board
witnesses.
As to the school capacity figures, it is established by
this trial record that they came from exhibits prepared
by the Cleveland School Board. The District Judge recog-
nized that varying usages of the buildings might serve to
vary student classroom capacity. But he also held that
the School Board, as the originator of the capacity figures
and as the sole source of information concerning changes
in said capacity, had the duty to present the changes, if
any, in the trial record rather than to postulate or assert
changes after trial.
As to appellants’ argument on this score, we find no
merit. Appellants, during the trial, and after this issue had
been once argued in this court and had been remanded,
had ample opportunity to make their record had they
seen fit to do so.
The measurement argument, however, does give us
concern. In the four instances (out of a total of 214 dis-
cussed by the District Judge) appellants point out that
the District Judge used different “walking distances” than
those set forth by the Board in its uncontradicted re-
sponses.” In two other instances appellants point out that
the District Judge adopted a court measurement to con-
tradict measurements supplied by the School Board at trial.
41
While the District Judge’s language suggests to us
that he was engaged in use of maps which might have
been subject to judicial notice, he clearly did not say so
or comply with the provisions applicable to judicial notice
contained in Rule 201, Federal Rules of Evidence.
Again we note that on remand of this case, after this
issue had been briefed and argued in this court, appellants
were afforded an opportunity to present additional evi-
dence, which opportunity was declined. Nonetheless, we
feel that the District Judge was in error in employing any
evidence dehors the record except in compliance with
Rule 201 of the Federal Rules of Evidence, and we elimi-
nate from our consideration any findings of discrimination
made by the District Judge in the six instances referred
to above, and we rely only upon the systemwide policy
violations found in numbered sections two, three, four,
five and six.
SUMMARY
In each of the sections of this opinion numbered two,
three, four and five, we have dealt with School Board
practices or policies which we find to have been intention-
ally segregative and substantial in their impact upon the
entire school system. In numbered section six, we have
dealt with a number of School Board administrative de-
vices which we have held, as did the District Judge, to
have been employed intentionally for segregative purposes.
The employment of optional zones, boundary changes,
special transfers and the use of private rental and portable
classrooms in this case in view of the number of such
usages and the large number of students affected thereby
cannot properly be termed isolated, in our judgment, but
must likewise be held in sum total to have had system-
wide impact. With such massive evidence of intentional
discrimination as we have found in numbered sections two,
42
three, four, five and six, we now hold that the racially
segregated school assignment system described in num-
bered section one was not “adventitious” or due to “neu-
tral” causes, but was, on the contrary, intentional.
From the record taken as a whole, it appears clear to
us that the District Judge was wholly warranted in finding
that the Cleveland schools in 1964 were segregated by
race, and that in the years between 1964 and 1975, the
Cleveland Board of Education had a duty to desegregate
that system which it completely failed to perform.
Further, we hold that as of the filing of this complaint
in 1973 and the completion of trial in 1975, the record
disclosed, as the District Judge found, intentional practices
of a system-wide nature on the part of the Cleveland School
Board which required his finding that “defendants’ inten-
tional discriminatory action has infected every part of the
system, mandating the finding that defendants have oper-
ated a de jure segregated dual school system in Cleveland.”
Reed II, supra at 568.
Our review of this entire record shows that this find-
ing is fully warranted by the evidence and can under no
circumstances be held to be clearly erroneous. It is there-
fore affirmed.
THE REMEDIAL ORDER
In the very recent opinion of the Supreme Court in
Columbus Board of Education v. Penick, supra, the Court
said:*
It is also urged that the District Court and the
Court of Appeals failed to observe the requirements
1A portion of this quotation was employed earlier in the
opinion on pages 3 and 4. However, we believe it bears repetition
in complete context at this point.
43
of our recent decision in Dayton I, which reiterated
the accepted rule that the remedy imposed by a court
of equity should be commensurate with the violation
ascertained, and held that the remedy for the viola-
tions that had then been established in that case
should be aimed at rectifying the “incremental segre-
gative effect” of the discriminatory acts identified.”
In Dayton I, only a few apparently isolated discrimi-
natory practices had been found; yet a systemwide
remedy had been imposed without proof of a system-
wide impact. Here, however, the District Court re-
peatedly emphasized that it had found purposefully
segregative practices with current, systemwide im-
18 Petitioners have indicated that a few of the recent violations
specifically discussed by the District Court involved so few students
and lasted for such a short time that they are unlikely to have any
current impact. But that contention says little or nothing about the
incremental impact of systemwide practices extending over many
years. Petitioners also argue that because many of the involved
schools were in areas that had become predominantly black resi-
dential areas by the time of trial the racial separation in the
schools would have occurred even without the unlawful conduct
of petitioners. But, as the District Court found, petitioners’ evidence
in this respect was insufficient to counter respondents’ proof. See
Village of Arlington Heights vy. Metropolitan Housing Dev. Corp.,
429 U.S. 252, 271 n. 21 (1977); Mt. Healthy School Dist. Bd. of
Education v. Doyle, 429 U.S. 274, 287 (1977). And the phenomenon
described by petitioners seems only to confirm, not disprove, the
evidence accepted by the District Court that school segregation is
a contributing cause of housing segregation. 429 F. Supp., at 259;
see Keyes, 413 U.S., at 202-203; Swann, 402 U.S., at 20-21.
*# Although the District Court in this case discussed in its
major opinion a number of specific instances of purposeful segrega-
tion, it made it quite clear that its broad findings were not limited
to those instances: “Viewing the Court’s March 8 findings in their
totality, this case does not rest on three specific violations, or
eleven, or any other specific number. It concerns a school board
which since 1954 has by its official acts aggravated, rather than
alleviated, the racial imbalance of the public schools it administers.
These were not the facts of the Dayton case.” Pet. App. 94.
AA
pact. 429 F. Supp., at 252, 259-260, 264, 266; Pet.
App. 95; 583 F. 2d, at 799."° And the Court of Appeals,
responding to similar arguments, said:
“School board policies of systemwide application
necessarily have systemwide impact. 1) The pre-
1954 policy of creating an enclave of five schools
‘ntetifionaliy designed for black students and
known as ‘black’ schools, as found by the District
1° Mr. Justice REHNQuIST’s dissent erroneously states that we
have “reliev[ed] school desegregation plaintiffs from any showing
of a causal nexus between intentional segregative actions and the
conditions they seek to remedy.” Post, at ——. As we have expressly
noted, both the District Court and the Court of Appeals found that
the Board’s purposefully discriminatory conduct and policies had
current, systemwide impact — an essential predicate, as both courts
recognized, for a systemwide remedy. Those courts reveal a much
more knowledgeable and reliable view of the facts and of the
record than do our dissenting Brethren.
16“For example, there is little dispute that Champion, Felton,
Mt. Vernon, Pilgrim and Garfield were de jure segregated by direct
acts of the Columbus defendants’ predecessors. They were almost
completely segregated in 1954, 1964, 1974 and today. Nothing has
occurred to substantially alleviate that continuity of discrimination
of thousands of black students over the intervening decades.” 429
F. Supp., at 260 (Footnote omitted).
“The finding of liability in this case concerns the Columbus
school district as a whole. Actions and omissions by public officials
which tend to make black schools blacker necessarily have the
reciprocal effect of making white schools whiter. ‘[I]t is obvious
that the practice of concentrating Negroes in certain schools by
structuring attendance zones or designating “feeder” schools on
the basis of race has the reciprocal effect of keeping other nearby
schools predominantly white.’ Keyes [, supra, at 201]. The evidence
in this case and the factual determinations made earlier in this
opinion support the finding that those elementary, junior, and
senior high schools in the Columbus school district which presently
have a predominantly black student enrollment have been sub-
stantially and directly affected by the intentional acts and omissions
of the defendant local and state school boards.” 429 F. Supp., at
266.
ee ee
As esate ans te
= cae ee OE
45
Judge, clearly had a ‘substantial’— indeed, a
systemwide — impact. 2) The post-1954 failure
of the Columbus Board to desegregate the school
system in spite of many requests and demands to
do so, of course, had systemwide impact. 3) So,
too, did the Columbus Board’s segregative school
construction and siting policy as we have detailed
it above. 4) So too did its student assignment
policy which, as shown above, produced the
large majority of racially identifiable schools as
of the school year 1975-1976. 5) The practice
of assigning black teachers and administrators
only or in large majority to black schools likewise
represented a systemwide policy of segregation.
This policy served until July 1974 to deprive
black students of opportunities for contact with
and learning from white teachers, and conversely
to deprive white students of similar opportunities
to meet, know and learn from black teachers. It
also served as discriminatory, systemwide racial
identification of schools.” 583 F. 2d, at 814.
Nor do we perceive any misuse of Keyes, where
we held that purposeful discrimination in a substan-
tial part of a school system furnishes a sufficient basis
for an inferential finding of a systemwide discrimina-
tory intent unless otherwise rebutted, and that given
the purpose to operate a dual school system one could
infer a connection between such a purpose and racial
separation in other parts of the school system. There
was no undue reliance here on the infefences per-
mitted by Keyes, or upon those recognized by Swann.
Furthermore, the Board was given ample opportunity
to counter the evidence of segregative purpose and
current, systemwide impact, and the findings of the
courts below were against it in both respects. 429 F.
Supp., at 260; Pet. App. 95, 102, 105.
Columbus Board of Education v. Penick, 47 U.S.L.W.
4924, 4928 (U.S. July 2, 1979).
Since this represents far more authoritative discussion
of the circumstances under which a systemwide remedy
46
such as that appealed from here may be ordered than we
could construct, and since we find the language quoted
immediately above fully applicable to the remedial order
entered in this case, we therefore affirm the liability find-
ings and orders based thereon, and the remedial orders
addressed to the Cleveland Board of Education and orders
based thereon. Orders bearing on remedy addressed to
the State Board of Education must, of course, await Dis-
trict Court action on the remand previously ordere’ in
this opinion.
The stay order entered 1/8/79 in this case is hereby
vacated.
47
MEMORANDUM OPINION AND ORDER
(Filed August 31, 1976)
BatTTIstTI, C.J.
During at least the last 20 years, patterns of racial
isolation in the Cleveland public school system have be-
come steadily more pronounced. This situation is illus-
trated by a review of the percentage of all students at-
tending regular* Cleveland Public schools whose school
was a one-race** school:
1940: 88.37%
1950: 74.09%
1955: 71.55%
1960: 79.09%
1970: 86.97%
1975: 88.21%
Looking only to the above statistics, one could reasonably
conclude that the Cleveland school system was in essen-
tially the same position with respect to racial integration
in both 1940 and 1975. A single statistical measure seldom
is a full representation of cn actual situation. In trying to
understand racial patterns in the recent history of the
*As used in this opinion, this term is best defined in the
negative. It excludes vocational schools which draw students
from the entire city and schools for children with special prob-
lems. Generally, it includes schools with general or comprehen-
sive curricula, serving attendance zones delineated by school
officials to include immediately surrounding areas.
**A school will be considered a one race school when its
student population is 90% or more one race.
48
Cleveland public school system, another measure sheds
additional light on the subject. Examining the percentage
of black students attending regular schools which were
one-race schools in various years indicates that from 1940
to 1974, there was a steady trend toward concentration of
black students in segregated schools:
1940: 51.03%
1950: 58.08%
1955: 57.72%
1960: 76.03%
1970: 90.00%
1975: 91.75%
These figures show that with one exception, the proportion
of black students in the Cleveland public schools who have
been regularly receiving their education in an integrated
setting has steadily diminished during the past 35 years.
These statistics and the underlying situation which
they describe give rise to many troubling questions. Most
of these questions however are beyond the purview of this
court in resolving the issue now before it. In reviewing
the above facts as well as all of the evidence included in
the voluminous record in this case, the court has sought an
answer to a single question of constitutional law. To what
extent, if any, are the defendants in this case, public offi-
cials and public agencies, responsible for creating or for
maintaining or both the segregated situation in the Cleve-
land public schools?
The plaintiffs are certain named students in the Cleve-
land public school system and their parents and the Na-
tional Association for the Advancement of Colored People.
They are proceeding on behalf of all persons in the state
of Ohio who are similarly situated to them. Their com-
plaint alleges that the defendants, the Governor and Attor-
a teen eee canteens
SoA at rites
_—
au Mn ~s eAnripengentigeh ok nssnoie: nes
49
ney General of Ohio, the State Board of Education, the
Superintendent of Public Instruction of the Ohio Depart-
ment of Education, the Cleveland Board and its individual
members and the Superintendent of the Cleveland City
Schools, under color of state law, have pursued policies,
customs, practices or usages in operating the Cleveland
public school system in a manner that had the “purpose
and effect of perpetuating a segregated public school
system.”
It is deceptively easy to state the three elements which
the plaintiffs must prove to establish their case. The court
has the guidance of many recent court opinions explicating
what duties the 14th Amendment of the Federal Constitu-
tion imposes on public officials in operating programs of
public education. At the outset, it is useful to summarize
the state of the law to focus the task of this court.
The Constitutional guarantees afforded under the
Fourteenth Amendment entered a new era in 1954 with
the landmark decision of the Supreme Court in Brown v.
Board of Education, 347 U.S. 483 (1954). That case, which
serves as the benchmark in the area of school desegrega-
tion, set forth a holding, the simplicity and brevity of which
belied its national import:
“in the field of public education the doctrine of ‘separate
but equal’ has no place. Separate educational facilities
are inherently unequal. Therefore, we hold that the
plaintiffs and other similarly situated. ... are, by rea-
son of the segregation complained of, deprived of the
equal protection of the laws guaranteed by the Four-
teenth Amendment... .” Id. at 495.
In the wake of Brown, trial and appellate courts sought
to ascertain what school districts bore the brand of uncon-
stitutional duality and how such districts should be dis-
50
mantled and reconstructed in a unitary fashion. Initial
efforts were in the south. Northern school desegregation
cases constitute a relatively recent development.*
As in so many areas of the law, the critical issue in
school desegregation cases is intent. It is an amorphous
term that can mean different things in different factual and
legal contexts. Because intent is such a subjective element,
existing in pure form only in the minds of individual peo-
ple, courts have found it necessary to discern evidence of
intent through an analysis of its objective manifestations.**
This is admittedly an artificial mechanism, but one not
unknown to other areas of the law,*** and without which,
courts would be hard put to protect individual rights.
At the outset it should be noted that the instant action
does not involve a statutorily mandated dual school system
that is segregated on the basis of race. Such systems were
particularly prevalent in the south and were ultimately
*For a detailed and exhaustive list of “northern and west-
ern” school desegregation cases, see United States v. School Dis-
trict of Omaha, 521 F.2d 530, 535 n.7 (8th Cir. 1975).
**The reason for resorting to such an “objective” test for
intent was set forth by Judge Grufein in what has become an
oft-quoted passage:
“To say that the foreseeable must be shown to have been ac-
tually foreseen would invite a standard almost impossible of
proof save by admissions. When we consider the motivation
of people constituting a school board, the task would be even
harder, for we are dealing with a collective will. It is dif-
ficult enough to find the collective mind of a group of legis-
lators. It is even harder to find the motivation of local citi-
zens, many of whom would be as reluctant to admit that
they have racial prejudice as to admit that they have no
sense of humor.” Hart v. Community School Board, 512 F.2d
37, 50 (2d Cir. 1975) (footnote and citation omitted).
***The Sixth Circuit Court of Appeals in Oliver v. Michigan
State Board of Education, 508 F.2d 178 (6th Cir. 1974) found an
analogy in the practice in employment discrimination cases, id. at
182 n.6, while the Second Circuit made additional reference to
civil rights and criminal cases, Hart v. Community School Board,
512 F.2d 37, 50 (2d Cir. 1975).
51
struck down in Brown.* The segregation alleged in this
case was not imposed by legislative fiat but rather is al-
leged to have been the result of purposeful action on the
part of the defendants. This is to say that the segregation
complained of is alleged to be de jure as opposed to de facto.
The distinction transcends far more than semantics for the
dichotomy between the two conditions appears to remain
a very viable one.**
What then, is the yardstick against which the conduct
complained of will be measured? The applicable law in
this regard was set forth perhaps more succinctly in Oliver
v. Michigan State Board of Education, 508 F.2d 178 (6th
Cir. 1974). Therein the Sixth Circuit Court of Appeals
stated:
“A finding of de jure segregation requires a showing of
three elements: (1) action or inaction by public offi-
cials (2) with a segregative purpose (3) which actually
results in increased or continued segregation in the
public schools. A presumption of segregative purpose
arises when plaintiffs establish that the natural, prob-
able and foreseeable result of public officials’ action or
inaction was an increase or perpetuation of public
school segregation. The presumption becomes proof.
unless defendants affirmatively establish that their
action or inaction was a consistent and resolute appli-
*The scope of the decision in Brown, of course, was not
limited exclusively to statutorily mandated dual school systems.
“The target of the Brown holding was clear and forthright:
the elimination of state-mandated or deliberately maintained
dual school systems with certain schools for Negro pupils and
others for white pupils.” Milliken v. Bradley, 418 U.S. 717,
737 (1974) (emphasis added).
**See e.g., Keyes v. School District No. 1, 413 U.S. 189, 208
(1973), wherein the Supreme Court stated that the differentiating
factor between de facto and de jure segregation was the intent
to bring about segregation.
52
cation of racially neutral policies.” Id. at 182 (footnote
omitted). :
In almost the same breath, the court went to great
lengths to say that the inquiry does not go to individual
motives or prejudices, but rather to the overall condition
that has been brought about as a result of official action.
“When constitutional rights are involved, the issue is
seldom whether public officials have acted with evil
motives or whether they have consciously plotted with
bigotry in their hearts to deprive citizens of the equal
protection of the laws. Rather, under the test for de
jure segregation, the question is whether a purposeful
pattern of segregation has manifested itself over time,
despite the fact that individual official actions, con-
sidered alone, may not have been taken for segregative
purposes and may not have been in themselves consti-
tutionally invalid.” Id. at 182-83.
It is thus clear that the necessary intent upon which a
finding of de jure segregation is predicated, may be evi-
denced by the natural and foreseeable effects of the official
practices and policies pursued, Hart v. Community School
Board of Education, 512 F.2d 37, 50 (2d Cir. 1975). These
condemning effects can be either the creation of a segre-
gated condition or the continuation of an existing seg-
regated condition that may have found its genesis in
extrinsic forces, Morgan v. Kerrigan, 509 F.2d 980, 585 (1st
Cir. 1974).
The underpinning of this approach in the area of school
desegregation is the Supreme Court’s holding in Keyes v.
School District No. 1., 413 U.S. 189 (1973). The precise
holding of that case was:
“that a finding of intentionally segregative school board
actions in a meaningful portion’of a school system, as
— Artis Bent Nad ns « “
eens Sae N bem Che thie
ee
53
in this case, creates a presumption that other segre-
gated schooling within the system is not adventitious.
It establishes in other words, a prima facie case of un-
lawful segregative design on the part of school author-
ities, and shifts to those authorities the burden of
proving that other segregated schools within the sys-
tem are not also the result of intentionally segregative
actions.” Id. at 208.
Thus, courts have combined the test for de jure segregation
with the holding of Keyes to articulate the applicable stan-
dard of liability in a school desegregation case:
“We hold that a presumption of segregative intent arises
once it is established that school authorities have en-
gaged in acts or omissions, the nature, probable and
foreseeable consequence of which is to bring about or
maintain segregation. When that presumption arises,
the burden shifts to the defendants to establish that
‘segregative intent was not among the factors that
motivated their actions.’” United States v. School
District of Omaha, 521 F.2d 530, 535-36 (8th Cir. 1974)
(citing Keyes, footnote omitted).
Noteworthy, too, is the recent case of Washington v. Davis,
44 US.L.W. 4789 (U.S. June 7, 1976). While that case
provides additional guidance in the area of racial discrim-
ination and equal protection of the law, it does not min-
imize the role of effect in the formula for ascertaining
intent.
Washington, supra, involved a constitutional challenge
to the testing procedures utilized by the District of Colum-
bia in the recruitment of potential police officers. <A lit-
eracy test was administered to all such applicants, regard-
less of race. The test was also commonly used for
evaluating other job applicants throughout the federal
54
government. It was revealed, however, that approximately
four times as many black applicants to the Metropolitan
Police Force failed the test as did whites.* The claim of a
denial of due process and equal protection of the law was
based solely on the racial disparity contained in the test
results.
The court, in responding to plaintiffs’ due process
claim stated:
“our cases have not embraced the proposition that a law
or other official act, without regard to whether it re-
flects a racially discriminatory purpose, is unconstitu-
tional solely because it has a racially disproportionate
impact.” Id. at 4792.
Thus, it is clear that evidence of disparate racial impact,
standing alone, is insufficient to sustain a cause of action
based upon an alleged deprivation of constitutional rights.
This is nothing more than a restatement of the widely
accepted proposition that the mere presence of racial im-
balance, without more, will not support a claim of uncon-
stitutional segregation. See e.g., Hart v. Community School
Board, 512 F.2d 37, 45-46 (2d Cir. 1975).
It should be noted, however, that the decision in
Washington is in no way a departure from the existing
State of the law, particularly with regard to the inferring
of intent from effect.
“It appears that these statistics apply only to applicants to
the Metropolitan Police Force and do not reflect test scores
throughout the federal bureaucracy. See Davis v. Washington,
512 F.2d 956, 969 n.10 (D.C. Cir. 1975) wherein the court refers
to test results for applicants (emphasis added) and states that
such data was obtained through discovery proceedings. Pre-
sumably, the defendants would have access to, and therefore
provide, only test scores of aspiring police officers. If four
times as many blacks failed the test as did whites throughout the
federal government, then the discriminatory effect would be
clearly foreseeable.
ee ee
55
“Necessarily, an invidious discriminatory purpose may
often be inferred from the totality of relevant facts,
including the fact, if it is true, that the law bears more
heavily on one race than another .. . Nevertheless, we
have not held that a law, neutral on its face and serving
ends otherwise within the power of government to
pursue, is invalid under the Equal Protection Clause
simply because it may affect a greater proportion of
one race than of another. Disproportionate impact is
not irrelevant, but it is not the sole touchstone of an
invidious discrimination forbidden by the constitution.”
Id. at 4792-93.
The holding in Washington, supra, is totally reconcilable
with the test for de jure segregation articulated in Oliver
v. Michigan State Board of Education, 508 F.2d 178 (6th
Cir. 1974) and Berry v. Benton Harbor School District, 504
F.2d 238 (6th Cir. 1975). Those cases authorized a pre-
sumption of segregative purpose from the fact of foresee-
able segregative result. Oliver, supra, at 182. That pre-
sumption could be overcome only by affirmative proof of
“a consistent and resolute application of racially neutral
policies.” Id. The policy complained of in Washington, viz.
the administering of the literacy test, was unequivocally
racially neutral even though the results of the test, and
therefore its effect, were not. Under those circumstances,
and in accordance with the precise terms of Oliver, there
could be no permissible presumption of segregative intent.
Therefore, the only source of culpability in Washington
was actual segregative purpose or motivation and it was
this state of mind that was found lacking.
One additional comment is necessary. The evidence
adduced at trial encompassed far more than mere segrega-
tive effect. Many of the incidents established at trial, such
as intact busing and certain schocl construction, can be
56
rationally attributed only to a deliberate and conscious
desire to create or perpetuate a segregated condition. As
to these incidents, therefore, there is no need to resort to
the inferring of intent from effect, although such an infer-
ence would be entirely permissible. The requisite intent
sufficient to find de jure segregation was clearly and inde-
pendently established.
The plaintiffs are seeking relief from both local and
State officials. Each set of defendants, the local school
officials, the state school officials, the Governor and the
Attorney General, are alleged to have caused or maintained
the segregated nature of the Cleveland school system. It is
therefore necessary to examine the nature of the authority
vested in each set of defendants and the evidence as to how
this authority was exercised. Absent a showing of a dele-
gation of authority from one set of defendants to another,
the liability of any of the defendants cannot be shown
vicariously. At any particular time, however, the conduct
of one set of defendants could give rise to an obligation of
another set of defendants to take action. In determining
whether any of the defendants denied the plaintiffs their
constitutional rights, the derivative nature of their obliga-
tions must be kept in sight.
A detailed understanding of what was happening at
the local level, therefore, is necessary before determining
the nature of the liability of the various parties, if any, for
the segregated conditions which all parties admit exist in
the Cleveland system. In their arguments to the court,
the plaintiffs characterized this case as consisting of lit-
erally hundreds of Segregatory incidents. The evidence
as to these incidents was submitted primarily in documen-
tary form. The court has considered all of this material
exhaustively and the conclusions of this analysis are set
forth at length, infra.
SS beet Oee Wee Se
PN aah OE OEM WOT Bante? a
57
In interpreting the evidence in the record, the court
has faced a number of recurring questions or problems.
A general discussion of these issues and the approaches
which were taken toward them will aid in the under-
standing of the court’s treatment of specific factual ques-
tions. First, while the evidence in this case is voluminous,
one question which it does not answer directly is what the
racial composition of any given residential area was at any
specific time. This information is crucial in assessing the
intent and effect of many of the local defendants’ actions.
Given the period of time which the plaintiffs’ proofs span,
it would be virtually an impossible task to produce direct
evidence on this question for each area and each time
period as to which the plaintiffs’ alleged incidents raise
the question. Testimony about general patterns at trial
from several witnesses who had firsthand knowledge of
the residential racial patterns in Cleveland during various
parts of the period from 1940 to the present had been
helpful to the court in tackling these individual factual
questions. The plaintiffs also prepared maps showing res-
idential racial information as shown by the decennial
census from 1940 forward. In addition to \mese sources,
whenever such a factual question has arisen, the court has
looked at the percentage of black students enrolled in
schools in the particular area under consideration for pe-
riods preceding and following an alleged segregatory action
by the local school officials and inferred from that the
probable racial composition of area affected in the specific
time frame.
In terms of volume, the majority of the plaintiffs’
proofs focused on specific pupil assignment decisions made
by local school officials over a 35 year period. These in-
cluded boundary changes, creation of optional zones, use
of rerited facilities for classrooms, additions to existing
58
schools of both permanent and temporary classrooms and
other facilities, construction of new schools and closing of
old schools. In analyzing these individual events, no easy
formula emerged for judging when a specific incident had
a segregatory effect. Actions which on their face might
appear integrative on closer examination frequently were
found to have enhanced emerging segregative patterns.
For instance, the local defendants have suggested in some
of their responses to these specific alleged incidents that
where the sending school had a lower proportion of black
students than the receiving school, the incident was prima
facie integrative and bore no further scrutiny. In some
instances where a reassignment was made to send students
from a ‘“‘whiter” to a “blacker” school, there was an integra-
tive result, as suggested by the local defendants. However,
on other occasions the reassignment decision appeared to
have had the effect of drawing black students primarily
from the “whiter” to the “blacker” school. Conversely,
every reassignment decision in which the sending school
had a higher proportion of black students than the receiving
school did not necessarily have the effect of isolating black
students. The court has examined each alleged incident
to determine its effect and, if that effect was segregatory,
whether such a result was foreseeable.
Much of the plaintiffs’ case focuses on the use to which
Cleveland school officials put their available facilities.
Some incidents to which the plaintiffs call the court’s
attention are situations where predominantly black schools
appear to have been overcrowded, sometimes to the extent
of requiring the use of portable classrooms or rented space
or both and sometimes involving use of half-day sessions
or “relay classes” in educational jargon. In these instances,
the plaintiffs have indicated “nearby” majority white
schools which appear to have had available space that
eT Te nn ee .
59
might have been used to obviate resort to such education-
ally undesirable solutions to overcrowding. In other inci-
dents on which the plaintiffs have focused, they allege
that boundary changes or creation of optional zones were
undertaken with the intent or effect or both of identifying
one of the two schools involved as the “black” or the
“white” school. In several of these situations, the local
defendants’ proffered explanation for the changes has been
that they were necessary due to the overcrowding of one
of the schools involved.
Against this background, the issue of the “capacity”
of any given school became one of the most sharply dis-
puted issues in the case. In presenting their case, the
plaintiffs relied, where possible, on the capacity figures
computed by the Cleveland Board’s own employees from
1952 to 1963 as represented in P.X. 74. The local defen-
dants attacked the use of such figures, arguing that capaciy
was a variable figure, not an immutable figure which could
be derived from application of any of several unchanging
formulae. It was noted that a change in the average pupil-
teacher ratio throughout the system could radically change
any set of capacity figures. Other policy decisions, such
as Superintendent Briggs’ program to have a library in
every elementary school in the system and participation
in school meal programs requiring space for food prepara-
tion and serving, also diminished the space available for
basic classroom instruction. Further, various witnesses for
the local defendants noted the varying impact which dif-
ferent types of classwork, e.g. typing, music, or science or
language laboratory work, had on the basic capacity of a
school. But beyond such general observations, the local
defendants have not assisted the court in untangling what
they insist is a very knotty problem. Given the wealth
of information which local school officials have on year-to-
60
year operations of the schools within their district, the
court must note the failure of the local board to come
forward with the specific data which it urged was necessary
to the resolution of questions where Capacity was a factor.
(See transcript of closing arguments at 277 to 280).
In Higgins v. Board of Education of Grand Rapids, 395
F. Supp. 444 (1973), the Capacity of specific schools was
also “hotly disputed by the parties.” Judge Engle char-
acterized and framed the issue as follows:
“The issue assumes great importance in determining
the motives and intent of Board action concerning
attendance zones, additions to existing buildings, new
construction, and feeder patterns. The facts were
involved, but the question for the court’s consideration
was relatively simple: how, under the circumstances
at a given time, would a school board fairly and
realistically employ its available classroom space, with-
out any intent to discriminate?” Id. at 462.
The utility in this formulation of the problem is that it
recognizes that in assessing the evidence in school cases,
basic capacity figures are not used for their intrinsic
validity, but rather as a point of departure for comparison
of school use at any given time.
Any difficulties which the court might have encoun-
tered in dealing with the collateral issue of capacity were
Significantly diminished by the fact that the issue generally
arose in the context of elementary schools. In assessing
the significance of enrollments which were either above
or below the stated capacity, the court assumed that factors
such as variations in curriculum from school to school
were not nearly as significant at the elementary level
as at the secondary level. Jn making such an assumption,
the court was guided by statements in the local defendants’
a Dea AR AN I Fa 2 a
61
publications on the meaning of capacity which distinguish
between the problems in computing and interpreting capac-
ity figures for secondary schools (P.X. 117 at 8-9) and
elementary schools (P.X. 117 at 23-24.) At the elementary
level, the court regarded the capacity figures as an indi-
cation of the relative potential for use of various schools.
The court recognizes this to be a theoretical measure and
has considered the various specific conditions, which the
local defendants brought to the court’s attention, that
would have lowered or raised such potential.
The court relied heavily on P.X. 74 on the issue of
capacity, but this exhibit had specific information only
for the period from 1952 to 1963. The plaintiffs offered
a document prepared by the Cleveland City Planning Com-
mission in December 1971 which purported to give capacity
figures for Cleveland schools as of that date, P.X. 223.
Apparently capacity as reported in this document was
computed by a different formula than that which the school
employees used in P.X. 74. The court found that these
estimates tended to be higher than capacities calculated
on the assumptions used in P.X. 74. Accordingly, where
possible, the court has calculated its own capacity estimate
for schools not listed in P.X. 74 or for schools which
have had additions since 1963. In doing so, the court
assumed that a new classroom in an elementary school
could accommodate 35 students, where enrollments were
pressing, without being considered overcrowded. As with
all capacity figures, these estimates were relied upon only
for their relative value.
Much documentary evidence was submitted to the
court concerning specific assignment decisions of the local
defendants. This evidence has for the purpose of clarity
been analyzed by geographical area and, within such anal-
yses, generally in chronological order. Following this de-
62
tailed examination the court has addressed the general
issues of relay classes, intact busing, special transfers, fac-
ulty assignment, housing and neighborhood school policy.
CENTRAL AREA
In 1940, approximately 15 percent of the students in
the Cleveland Public Schools were black. Slightly more
than half of these students were enrolled in 10 regular
schools which were plainly identifiable as black inasmuch
as black students constituted 90 to 100 percent of the
enrollments of those schools. Of course, the other obvious
way of describing this situation, as the proverbial optimist
might do, is to say that almost half of the black students
in the system were being educated in situations with a
Significant number of white students. From the point
of view of the present polarized conditions in the Cleve-
land system, such a situation is almost enviable. Some
Statistical measures of integrated or segregated conditions
in the system, particularly the percentage of all students
in essentially one race Schools, are almost the same for
the years 1940 (88.37%) and 1975 (88.21%). However,
comparison of this measure with a Statistic which focuses
on the impact on black students in the system, the percent
of black students in essentially one-race schools, 51.3%
in 1940 and 91.75% in 1975, aids in understanding the
basic issue in this case. At issue is whether black students
in the Cleveland public schools have been denied equal
access to the benefits which a unitary public educational
system provides.
All of the defendants have maintained that the present
Situation in which over 90 percent of the black students
in the system are attending one-race schools has evolved
as a result of private actions over which they had no
control and in which they had no involvement. The plain-
7
Se FO Antanas Tilly baat PORES Bene REI te BLS Te Barns
nw ete ONG LS
simi,
63
tiffs’ proofs essentially date from 1940, and the court has
been asked to scrutinize many specific acts of the local
school officials which occurred long before any of the
present individual defendants had come to their present
positions. Despite the apparently mooting effect of the
passage of time as to many of these incidents, the court
undertook such a detailed analysis. The overriding inquiry
in the course of examining the older incidents in the record
was to determine what factor the actions and policies
of school officials had played in giving rise to the under-
lying residential segregation which the defendants now
argue is a defense.
During the decade of 1940-50, the total enrollment
in Cleveland public schools dropped significantly from
114,769 in 1940 to 94,186 in 1950. During this period there
was a moderate rise in the number of black children en-
rolled in Cleveland public schools from 16,772 in 1940
to 24,849 in 1950. This indicates the effects of the economic
depression of the 1930s and of World War II on the average
size of families as well as the effect of suburban develop-
ment attracting young white families outside the city lim-
its. The increase in school age black children appears ~
to have been in part the result of in-migration of black |
families drawn to Cleveland by the prospect of employ-
ment, particularly in the many industrial plants in this
area. In 1940, the eight regular elementary schools in
the system had black student enrollments in excess
of 95 percent and all were in the Central Area, as desig-
nated by the local school authorities. At the same time,
there were an additional 58 regular elementary schools
which had some black students, enrolled, although their
percentage in the schools’ enrollment in most instances
was relatively small. One may infer that as of 1940 the
residential patterns, which were to emerge as more black
families moved to Cleveland was not predestined. Testi-
64
mony at trial was to the effect that the real estate market
in Cleveland was managed in such a way that black con-
sumers were afforded the opportunity to bid for housing
only in ceri» 1 areas. In this respect, the concept of the.
neighborhood school was meaningful according to the
plaintiffs as a signal to all concerned of who should expect
to be able to make their home in any neighborhood at
any particular time. With this in mind, it is useful to
examine in a chronological order the student assignment
decisions which were being actively made during the 1940s
and 1950s to see if such signals were being broadcast.
A number of the schools operating in the Central
Area in the 1940s have since been closed. It is clear
that boundary changes or other assignment decisions con-
cerning these schools exclusively could have no continuing
direct effect. (See, for instance, the alleged incidents dis-
cussed in the local defendants’ response documents E-1,
E-2, and E-3.) Tracing the student assignment decisions
which affected the enrollment at Rutherford B. Hayes
Elernentary School during the 1940s and 1950s, one detects
a distinct pattern of color-conscious conduct on the part
of school officials.
In 1940, overcrowding was plainly a problem at Case-
Woodland (0.81%, 807/630)* and was also considered
*For convenience and brevity, the relevant data for schools
discussed is given parenthetically throughout the text. Where
a percentage figure is given, it refers to the proportional black
enrollment. The relation of the enrollment to capacity is shown
in one of two ways, either as a fraction or as a single plus or
minus figure. In fractional figures, such as this one, the numer-
ator indicates the number of students reported to have been en-
rolled in the particular year, and the denominator indicates the
estimate of capacity. Where there is a single plus or minus figure,
it represents the remainder when the enrollment (sometimes
taken from P.X.74) has been subtracted from the capacity esti-
mate. Unless otherwise indicated, parenthetical data is for the
year of the alleged incident. Where the data is for another year,
oa year is shown without the first two numerals, as in ’42 for
1
65
a problem at Burroughs (96.27%, 1154/1225). The next
year the school officials by rescinding a 1933 boundary
change which had transferred part of the Rutherford B.
Hayes attendance area to Burrough and a 1935 boundary
change transferring an additional portion of the Hayes
attendance area to Case-Woodland, attempted to deal with
those overcrowding situations. In 1941 it appears that
Hayes (833/980) did have some available space which
could be used to help alleviate overcrowding, but it does
not appear that this would have been sufficient to thor-
oughly solve the overcrowding at one of the two send-
ing schools, Case-Woodland (864/630). Adjacent to the
Case-Woodland attendance area and sharing a long bound-
ary with it was Mayflower (809/1085). There is no ex-
planation as to why its available space was not used to
help relieve overcrowding at Case-Woodland. One fact
is known. Both Case-Woodland (40: 77.57%; ’41:
94.91%; °42: 95.9%) and Mayflower (40: 79.35%; °41:
87.76%; ’42: 85.6%) had experienced significant increases
in the ratio of black students in their enrollment. May-
flower which was on the periphery of what appears to
have been the major overwhelmingly black residential area
in the city did not have as high a black ratio in
its enrollment as Case-Woodland. On the basis of this
single incident and particularly in light of the relatively
slight difference in proportional black enrollment at the
two schools, it is difficult to draw any conclusions as
to the practices or motivations of school officials which
caused this omission. Subsequent events, however, may
shed some additional light on the matter.
In 1943, Hayes which was 98% black appears to have
become seriously overcrowded. Its enrollment was 1605,
while its basic capacity as reported in 1952 was 980. There
appear to have been no additions or closings of classrooms
at the school between 1943 and 1952. Even allowing for
66
the possibility of a higher acceptable teacher-pupil ratio
in the 1940s than in the 1950s, the need for some remedy
was and is clear. A portion of the Hayes attendance
area was transferred to the Sterling Elementary School
attendance zone in December 1943. The 1943 percentage
of black students enrolled at Sterling was 78.5 and its
1952 capacity is shown as 630. Its 1943 enrollment was
675, but by 1943 standards arguably it might have had
some available space. This boundary change appears to
have been somewhat integrative. Further relief came with
the conversion of Outhwaite (later Alfred Benesch) to
a regular elementary school in the fall of 1944. Outhwaite
also drew students from two other overwhelmingly black
schools, Case-Woodland and Gladstone. It opened 99.07%
black. But to fully evaluate the significance of these
boundary changes, it is necessary to determine whether
they solved the underlying problem of overcrowding, and,
if not, whether further remedial actions were rejected
because of racial considerations.
The overcrowding problem at Hayes did not end. Its
1944 enrollment of 1159, while a considerable reduction
from the 1943 figure, would still overtax a structure with
a theoretical capacity of approximately 980. Additional
resources appear to have been available. A school with
at least as much available capacity as Sterling was Marion
with a 1943 enrollment of 557 of whom 49 percent were
black. While its 1952 capacity is reported at 560, in 1942
when it had an enrollment of 553, it is reported to have ©
had one closed classroom. Marion did not share a bound-
ary with Hayes, but it was approximatley the same distance
from other portions of the Hayes attendance area as Ster-
ling was from the area affected by this boundary change.
A school which did share an attendance boundary
with Hayes was Waring Elementary School, which was
67
also approximately the same distance from portions of
the overcrowded Hayes attendance zone as Sterling was
from the actually affected area. Waring clearly appears
to have had available pupil stations in 1943. Its 1943
enrollment was 588, while its basic capacity in 1952 was
630. This capacity figure presumably ii ‘orpcrates an as-
sumption of a lower acceptable student-te.cher ratio than
would be reflected by the 1943 average practice. Interest-
ingly, in 1944 Waring’s enrollment dropped to 514. Black
students constituted 4.4 and 7.0 percent of Waring’s enroll-
ment in 1943 and 1944 respectively.
The resources of Marion and Waring were not mar-
shalled to solve overcrowding at the overwhelmingly black
Hayes despite their accessibility which appears nearly
equal to that of Sterling. Safety: factors do not appear
to be a plausible explanation for these omissions. The
Hayes, Sterling, Marion and Waring attendance areas were
sliced by crosstown streets. However, a child living in
the northern part of the Hayes attendance area would
encounter no more traffic hazards going north to Waring
than south to Hayes. Accordion-like boundary changes
transferring part of the Sterling area to Marion and in
turn more of the Hayes area to Sterling would have led
to a fuller solution of the Hayes overcrowding problems.
One common characteristic of both Marion and Waring
was that less than half of their enrollment was black.
One might infer that there was a reticence on the part
of school officials to introduce more black students into
these schools. Such an inference would be supported by
evidence of other similar behavior by school authorities
during this time period.
The opening of Outhwaite as an elementary school
suggests an inclination of school planners to contain blacks.
The attendance area of the new school was completely
68
surrounded by schools which were in excess of 90 percent
black, which conferred upon it the dubious distinction
of becoming the second thoroughly impacted black school
in the Cleveland public school system. An impacted school,
as the term will be used in this opinion, is one which
could not be integrated by a redrawing of boundaries
with contiguous schools, all of which are in excess of
90 percent black. The first such school in the Cleveland
system was Dike Elementary School. The court is aware
that in opening Outhwaite as an elementary school, school
officials were converting an existing board-owned facility
to a new use. During a period of war, as this was, ob-
viously new construction would have to be viewed as
an unlikely alternative. The court is also equally aware
of the fact that the concentration of black families with
school-age children which necessitated the opening of a
new elementary school was not largely the result of the
workings of the private real estate market. Rather the
opening of Outhwaite as an elementary school coincided
with the opening of Carver Park Housing Project, a public
housing estate planned for occupancy by blacks. As dis-
cussed elsewhere in this opinion, the planning of public
housing was coordinated with agencies providing public
services, assurances that public services will be provided
being a necessary prerequisite to the construction of the
project. Thus school officials were involved in this public
housing site decision and its foreseeable result of residential
concentration by race. This concentration, in turn, resulted
in an impacted black school.
Another measure allegedly aimed at relieving the over-
crowding at Hayes (99.7%, 1159/980) in 1944 was the
creation of an optional zone at the south end of the Hayes
area allowing students from that zone to attend Case-
Woodland (92.8%, 724/630).* This approach is subject
69
to two criticisms. First, in seeking to relieve overcrowd-
ing at one school, it exacerbated a similar problem at
another school, when, as discussed above, this was not
the only possible alternative. Second, there is no explana-
tion as to why the school officials addressed the problem
with optional zone, rather than a boundary change. While
the relative disparity in the proportional black enrollment
at the sending and receiving schools is not large in abso-
lute terms, there is the possibility that the optional zone
contributed to the loss of white students at Hayes from
1943 (98.0% black of 1605 or, conversely, approximately
30 non-black students) to 1944 (99.7% black of 1159 or,
conversely, 3 or 4 non-black students).
The enrollment at Hayes continued to increase through
the 1940s in spite of the assignment adjustments discussed
above. In September 1948, the school officials again sought
to ameliorate the problem at least partially with a bound-
ary change assigning upper elementary students from a
designated portion of the Hayes area to attend Sterling.
Clearly Hayes which had an enrollment of 1262 in 1947
and 1352 in 1948 after this change and a theoretical capacity
of only 980 was in need of relief. But the choice of
Sterling as the source of that relief again strongly suggests
that school officials were not neutrally considering all
of the alternatives available to them. In 1947, the Sterling
enrollment was 658, already 28 students over its theoretical
capacity of 630, as shown in P.X. 74. In 1948, after this
boundary change its enrollment had increased to 723. In
ameliorating one problem of overcrowding, school officials
were contributing to the creation of another. Again, if
this were the only alternative available to school officials,
it would be reasonable to more evenly distribute the
pressures of overcrowding. It was not the only alternative.
Waring was still operating with an enrollment, 548 in
1947 and 575 in 1948, which was less than its basic capacity
70
of 630. Since the reassignment measure adopted at this
time affected only older elementary students, students from
the northern portion of the Hayes attendance area could
have reasonably been assigned to Waring. The most appar-
ent distinguishing characteristic between Sterling and War-
ing at this time was the proportion of black students in
their enrollment, 88.8% and 4.0% respectively. Notable
is the fact that Waring’s proportional black enrollment
had in fact decreased from 7.0% in 1944. Given the nature
of the remedial action taken in 1948, the court concludes
that reasonable school officials acting in a color-blind fash-
ion would have transferred some of the upper elementary
students from the 98:7% black Hayes to the 4.0% black
Waring.
There is one point about the court’s evaluation of
various decisions by school officials which should be made
clear. Clearly since the 1940s, there has been an enormous
rethinking as to how public officials should treat racial
issues. Indeed this process continues to this very moment.
The cuurt does not conclude that the school officials who
engaged in the various conduct discussed here were neces-
sarily acting with actual malice toward black students.
In fact, the court assumes the contrary. The court has
undertaken this minute analysis not to cast aspersions
upon particular individuals who were responding in all
probability to the social and political pressures of the
day. Throughout the school system, they were facing prob-
lems of mobility in the population and later of population
explosion, the so-called post-war baby boom, of a magni-
tude that was difficult to predict. Clearly developments
in the community called for responsive action from school
officials. At the same time, constitutional principles re-
quired that those actions meet certain standards in afford-
ing all students in the Cleveland public schools an equal
education. Even prior to Brown v. Board of Education,
71
supra, it was understood that black children were entitled
to-educational programs and opportunities equal to those
afforded their white counterparts.
In this spirit, the court must conclude that the vari-
ous actions and inactions in dealing with overcrowding
at Hayes during the 1940s, considered as a whole, are
strong evidence of a pattern and practice at that time
to contain black students in overwhelmingly black schools.
This was done despite the fact that the crowded conditions
in these black schools must be viewed as indicia of their
inequality when compared with nredominantly white
schools.
On several occasions, the “solution” to overcrowding
was to shift students to another predominantly black school
which was already overcrowded itself, e.g. Sterling and
Case-Woodland. At the same time, the resources of essen-
tially white under enrolled schools, most notably Waring,
were not used in resolving problems of over-crowding.
It is fair to conclude that this conduct by school officials
was interpreted as a signal to families in the real estate
market that the Waring attendance area would remain
a white “neighborhood.”
Another incident during this time period which sug-
gests that, where ameliorative action was necessary, con-
tainment of black students in identifiably- black schools
was a practice, is the 1947 boundary change in which
a southern portion of the Marion attendance area (64.3%,
644/560) was transferred to Mayflower (97.0%,
942/1085). The court assumes that the whites attending
Marion lived primarily in the northern section of the
school’s attendance zone, that is in areas abutting the pre-
dominantly white neighborhoods which were in the St.
Clair Elementary School attendance area. Conversely the
court assumes that the children affected by this boundary
eaves SS ee eae Oe ee ee ee eee eee 7
12
change were primarily black children. Based on likely
conditions, the record indicates that a less segregative alter-
native to Mayflower was Harmon (87.7%, 293/535). Ac-
cording to the School Housing Report for 1947, Harmon
had six closed classrooms while Mayflower had one. As
a single incident, the decision to send students, most or
all of whom were presumably black, to a 97% black school
rather than an 87% black school does not suggest the
worst kind of manipulation. As part of a pattern, how-
ever, it cannot be ignored.
At the end of the decade of the 1940s, the concentra-
tion of black residents continued to be most heavy in
the Central area of the Cleveland School System. By
1950, there were 13 regular elementary schools which had
proportional black enrollments in excess of 95 percent,
as opposed to the 10 such schools in 1940. These schools
formed a core. Four shared no boundaries with any
school having a black enrollment of less than 90 percent.
Six had enrollments substantially in excess of their capac-
ity as calculated by school officials in 1952. Only one
of these schools had any closed classrooms, Gladstone with
four such rooms. A summary of relevant statistics for
these predominantly black schools follows:
Cain ean tal
oo — vr
a Oe ee
a ee
73
proportion enrollment/ closed
black capacity classrooms
Bolton 98.8% 829/1050 0
Burroughs 100.0% 1053/1225 0
Case-Woocdland 99.5% 777/630 0
Giddings 99.7% 670/775 0
Gladstone 100.0% 500/735 4
Hayes 97.6% 1350/980 0
Irving 96.2% 707/600 0
Dike 100.0% 590/665 0
Kinsman 95.7% 1446/945 0
Mayflower 95.4% 802/1085 0
Outhwaite 98.0% *n/a/1155 0
Wooldridge 99.0% 792/700 0
Quincy 99.6% 750/665 0
In contrast, they were ringed by 12 schools, all but three
of which had proportional black enrollments substantially
below the percentage of black students in the Cleveland
Public Schools at the time (26.7%). Eight of these schools —
had enrollments which were at least 200 students below
their basic capacity as calculated in 1952. One school
had an enrollment significantly over capacity, Hough. Ac-
cording to the 1950 School Housing Report, these schools
had a combined total of 51 closed standard classrooms.
For comparison, the same 1950 statistics listed for the
core school are listed for the ring schools herewith:
*As hereinafter used, the abbreviation n/a stands for not
available.
74
proportion enrollment/ closed
black capacity classrooms
Boulevard 7.34% 395/700 4
Dunham 17.66% 1138/1125 0
Harmon 87.81% 230/535 6
Hough 10.98% 1148/1015 0
Observation 81.67% 311/910 0
Mt. Auburn 0% 260/700 8
St. Clair 18.37% 283/490 6
Tod 30.15% 252/490 7
Waring 6.77% 576/630 0
Warren 5.85% 259/770 9
Woodland 2.49% 562/595 0
Woodland Hills 4.22% 332/455 1
At the very least, the above figures indicate an uneven
management of these various schools. The task before
the court, however, is not to review generally the adminis-
tration of the schools over the time period covered by
the plaintiffs’ evidence in this case. Rather, as has been
indicated before, the task brought to the court is to deter-
mine whether the Cleveland Public Schools were operated
as a truly unitary system. On the facts above, the color-
blindness of school officials during this period must be
questioned.
Assuming that the practice in the early 1950s was
to assign approximately 35 students to an elementary
class—an assumption which plainly gives the local board
the benefit of the doubt—the 51 unused classrooms in
the “ring” schools could have accommodated 1785 students.
walt.
75
School officials ought to have utilized such presently avail-
able facilities, if possible, before opening any additional
schools. Step-by-step changes would have achieved the
end of making the fullest use of these otherwise under
utilized “‘ring” schools.
Instead in 1950, the school officials dealt with over-
crowding in the core schools by converting part of the
Longwood Vocational School for Girls into a primary (K-3
School). Longwood Primary School (100%, 271/?—dual
use of school makes PX 74 capacity figure unreliable for
this year) opened with a totally black enrollment which
had been drawn from Mayflower (’49: 897/1085; ’50:
95.39%, 802/1085), Sterling (’49: 723/630; ’50: 89.49%,
674/630), Case-Woodland (’49: 797/630; ’50: 99.49%
777/630), and Hayes (49: 1409/980; ’50: 97.56%, 1350/
980). As the 1949 enrollments at the latter three schools
reveals, action to deal with overcrowding at the sending
schools was plainly needed. The initial difficulty with
the action taken by the school officials in partially convert-
ing Longwood is that the overcrowding in three of the
four sending schools appears to have not been fully re-
solved. If all the schools within this area of the city
were similarly overcrowded, this result would have had
to be tolerated. There were, however, at least five schools
which were reported to have unused standard classrooms
that might have been incorporated in a plan of step-by-
step boundary changes to relieve the overcrowding ad-
dressed by the opening of Longwood Primary School.
These schools were:
76
closed proportion
classrooms black
Warren 9 5.85%
Tod 7 30.16%
Harmon 6 87.1 %
Gladstone 4 100.0 %
Marion 1 68.95%
Total 27
Utilization of these available classrooms theoretically
would have created 945 pupil stations. The aggregate
overenrollment at Sterling, Case-Woodland, and Hayes in
1950 (that is, enrollment minus capacity totalled for the
three schools) was 561. While Gladstone and Harmon
had black enrollments which were in the same range as
the three overcrowded schools, the low ratio of black stu-
dents at Warren and Tod is notable. The high number
of available classrooms at these two schools strongly sug-
gests that student assignment policies concerning this area
of the school system were being managed to keep these
schools as white as possible. Physical barriers which might
otherwise define “neighborhoods” should not be taken
aS excusing unnecessary waste of available school re-
sources with such a deterimental impact on a suspect class
of students.
Indeed, to the extent that school attendance zones
were supposed to reflect some underlying sociological
structure, school officials apparently: viewed such patterns
as being more flexible in essentially all black residential
areas than in other areas. In January 1951, a portion
of the Longwood Primary School, (100%) attendance zone
was transferred back to the Mayflower area (98.6%, 836/
ott eee ee =
717
1085). The incident is a minor one, as certainly there
was available space at Mayflower and it affected only
one block. Moreover, whatever its original .direct effect,
it could not be continuing as both the sending and receiv-
ing schools have since been closed. The incident is instruc-
tive, however, because of the two changes which this area
underwent (Mayflower to Longwood in September 1950
and Longwood to Mayflower in January 1951) within a
five month period.
The number of children attending Cleveland Public
Schools increased dramatically during the decade of the
1950s, reflecting the so-called “baby-boom” following
World War II as well as continued in-migration of new
families to the city. By 1955, the total public school enroll-
ment (113,067) was almost equal to the 1940 figure (115,-
769) and still growing rapidly. New school construction
was plainly going to be needed. Various decisions made
in the course of this new construction appear to have
had foreseeable effects which bear close scrutiny.
In 1954, Longwood (100%, 810/770) was converted
from a primary school to a regular elementary school.
Students were assigned from areas formerly in the Ster-
ling, Case-Woodland, Mayflower and Hayes attendance
areas. The act of creating more room for elementary
students is not itself subject to criticism. The problem
is that the overcrowding in the sending schools which
precipitated this conversion was not completely resolved,
as the figures below indicate, and apparently more could
have been done.
78
54
63 enrollment/ 03 54
enrollment capacity % black % black
Sterling 735 758/700 89.4% 63.1%
Case-Woodland 859 711/630 99.0% 99.4%
Mayflower 881 802/1085 98.8% 97.9%
Hayes 1473 1069/980 98.4% 98.9%
In responding to the plaintiffs’ description of the various
boundary changes associated with the 1954 conversion of
Longwood, the local defendants note that at least one
step-by-step boundary change was made. That is, after
some Sterling students were reassigned to Longwood, some
Marion students were assigned to Sterling. It is notable
that after these changes the proportion of black students
at Sterling dropped from 89.4% in 1953 to 63.1% in 1954.
Harmon at this time was substantially under enrolled (°53:
89.8%, 307/535; °54: 89.9% 307/535). If the objective
of the school officials had been full utilization of avail-
able facilities, it would seem that further step-by-step
boundary changes should have been made to involve Har-
mon in the plan to relieve overcrowding. The reason-
able boundary adjustment would have been to assign stu-
dents from the northwest panhandle of Marion (’53:
66.4%, 634/560; °54: 67.2%, 568/560) to Harmon. See
1947 boundary map). The local defendants’ explanation
for not involving Harmon in this redistricting plan is that
access problems existed, citing the problem of walking
under railroad bridges. Neither the 1947 nor the 1967
map of school attendance zones indicate any railroad lines
in the area between Harmon and Marion.
In absence of a sufficient neutral explanation for the
failure to involve Harmon in resolving overcrowding in
ee Dee eee eee
i, Mee. Zatlhpthd Fete Wie
ee ei ae et el eee
Mas Lait dic les CRORE,
79
the area at the time, the court finds it necessary to consider
what racially motivated reasons might have accounted for
this omission. As noted above, the one step-by-step bound-
ary change which the school officials did undertake appears
to have resulted in a substantial reduction of the propor-
tion of black students enrolled at Sterling. The end of
seeking to establish Sterling as a more integrated school
would be laudable when considered in a vacuum. If this
was at least one of the goals of this redrawing of bound-
ary lines, however, its execution would be subject to sev-
eral criticisms. First, the increase in integration at Ster-
ling appears to have been at the expense of isolating black
students formerly assigned to Sterling to the totally segre-
gated Longwood. Second, the unwillingness to assign stu-
dents from Marion to Harmon not only isolated the Harmon
students, but wasted valuable and limited resources of
the school system at a time and place where there was
obvious need. Finally, the failure to use all of Harmon’s
available space resulted from the school officials’ conscious
unwillingness to assign white students from Marion
(67.2%) to the significantly more black Harmon (89.9%),
this undercuts the local defendants’ assertion that the
neighborhood school policy has continuously been applied
in a racially blind fashion. The various questions raised .
by the conversion of Longwood to a regular elementary
school and the consequent boundary changes would not
loom very large except for the pattern which emerges
from several school openings at about the same time, in
particular Chesnutt and Clara Tagg Brewer, discussed
infra.
In 1954, George Washington Carver (98.8% 730/590)
Elementary School also opened. Unlike Longwood,
which was an existing board-owned facility, Carver was
newly constructed. Thus, school officials had a full mea-
en eee reer ree
we
80
sure of control over site selection. Its students were drawn
from areas which, formerly had been part of the Hayes,
Burroughs and Outhwaite attendance. In 1951, the initial
planning year for Carver, these three sending schools had
the respective proportional Dlack enrollment as follows:
97.9%, 99.6% and 98.5%. It was clearly foreseeable that
Carver would open a virtually all-black school. The only
schools which might have presented integrative alterna-
tives, assuming that children were to walk to school, were
Sterling (’54: 63.3%, 758/630), Dunham (’54: 47.7%,
1638/1125 and Waring (54: 8.3%, 576/630). Sterling
and Dunham were both experiencing over enrollment, and
the relatively small amount of available space at Waring
could not absorb the burgeoning student population in
the area ultimately served by Carver. The result of this
school construction was plainly containment of blacks in
an overwhelmingly black school.
Whether a different site selection for Carver might
have been possibly less segregative in effect is a difficult
question, given the commercial development to the north
of the actual Carver site. The relevant observation, how-
ever, is that in 1954, ironically the year in which Brown
v. Board of Education was decided, the Cleveland Board
of Education opened the first newly constructed school
which from its inception was essentially an all-black school.
This event surely should have signaled school authorities
that integrated education in Cleveland would be the excep-
tion and not the rule for both black and white students,
unless the “neighborhood” school policy was tempered.
Instead the policy appears to have been implemented in
such a way as to contain blacks even where integration
was not only feasible, but where the alternative resulted
in gross disparities in utilization of adjacent “black” and
“white” schools. This is illustrated by the events in the
Kinsman area.
EA ete lath Wir Po. oo!
a agitehisbhlinaest Dinscot
50a AAAS Wi ernas Chobe Se
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4
:
;
81
Kinsman was accommodating 500 students more than
its basic capacity of 945, in other words, it was over enrolled
by more than 50%. It shared boundaries with Boulevard
(7.34%, 395/700, 4 closed standard classrooms), Mt. Au-
burn (0%, 260/700, 8 closed standard classrooms), Wood-
land (2.49%, 562/595, 0 closed standard classrooms), and
Woodland Hills (4.22%, 332/445, 1 closed standard class-
room). A double set of railroad lines did separate the
Kinsman area from all of these schools. However, the
distance and the safety factors which would have been
‘involved in assigning upper elementary Kinsman students
to Mt. Auburn and Boulevard do not appear to outweigh
the benefit of relieving the gross overcrowding at Kinsman.
Likewise, Tod shared the western boundary of Kinsman
and had over two hundred theoretically available pupil
stations. At this time, the Sidaway Bridge apparently
provided access from the Kinsman area to Tod, as evi-
denced by its boundary at the time. The available space
at Mt. Auburn, Boulevard and Tod was more than suffi-
cient to solve the obvious overcrowding at Kinsman in
1940, and yet school officials allowed it to sit idle. This
state of facts seems explicable only in terms of a deliberate
effort on the part of school officials to preserve the identifi-
cation of the “ring” schools as “white schools.” By their
inaction, school officials joined in transmitting the message
that blacks were not welcome in these neighborhoods.
They contributed to erfective designation of areas as white
neighborhoods or black neighborhoods. Subsequent ac-
tions by school officials only bolster this conclusion.
As the local defendants acknowledge in their response
E-168, crowded conditions existed at Kinsman from 1944
to 1959. School officials did undertake certain actions
to alleviate this continuing problem. But in each instance,
these remedial efforts contained blacks in overwhelmingly
82
black schools. Thus some Kinsman students were assigned
to Rawlings Junior High (’44: 84.1%, 59: 100%) School
from 1944 until 1959. During the 1950s, two schools were
planned and constructed to draw students from Kinsman;
Chesnutt (’55: 99.54%, 660/630) and Anton Grdina (’59:
97.6%, 687/665).
In reviewing the evidence, the student reassignment
decisions made pursuant to the opening of Chesnutt in
1955 stand out as among the most blatant actions of school
officials in deliberately separating students by race. In
1954, the year prior to the epening of Chesnutt, Kinsman
(98.75%, 1771/945) had an enrollment which was 826
students above its theoretical capacity! While some Kins-
man classes were being held at Rawlings Junior High
School (’54: 99.65%, 1120/1567), even if all of the theo-
retically available space at Rawlings were marshalled for
use for the overflow of Kinsman students, there would
still have been an aggregate over enrollment at Kinsman
of approximately 400 students. In 1954 in addition to
drawing students from Kinsman the new Chesnutt also
drew students from Wooldridge (99.8%, 787/700) and
Tod (’53: 28.7%, 251/490; 54: 6.38%, 188/490), which
shared a long boundary with Kinsman. As a result of
this latter change, Tod had a marked decrease in its total
and its proportional black enrollment. Prior to the opening
of Chesnutt, the walking distance from the western portion
of the Kinsman attendance area to Tod was relatively.
short because of the existence of a footbridge, the Sidaway
Bridge, which spanned Kingsbury Run. Prior to the open-
ing of Chesnutt, the Tod attendance area included an
area northeast of Kingsbury Run. Obviously, the Sidaway
Bridge was part of the access route for the children from
this area. When the Chesnutt boundaries were drawn,
this area was included in its attendance zone. The appar-
ent effect of this was to remove virtually all of the black
2 gre ROR tA ES et etch ek o'r
83
students attending Tod to Chesnutt and to cause a substan-
tial enrollment drop in the already drastically under uti-
lized Tod. Consideration of the safety of elementary school
children daily traversing a footbridge was clearly a matter
which school officials could reasonably consider. But in
the instant incident, the continuing severe over enrollment
which plagued Kinsman until the opening of Anton Grdina
in 1959 suggests strongly that the motive of the school
officials was as much*containment of racial minorities as
it was safety considerations. Subsequent to the construc-
tion of Chesnutt, the Sidaway Bridge was not maintained.
Although its framework still exists, it is now in an un-
usable state of disrepair and is closed. The physical sepa-
ration which has since evolved between these two resi-
dential areas is such that, to reach one from the other,
it is necessary to travel over a mile on surface streets
through industrial areas. In seeking to justify the failure
to utilize available space at Tod, the local defendants have
relied on this distance as being prohibitively far for an
elementary school child to walk.
The blind acceptance of this position would ignore
the role of public agencies in creating or destroying con-
necting arteries between neighborhoods. In this particular
instance, the local defendants stressed that Sidaway Bridge
was no longer operative and a literal chasm existed be-
tween these two neighborhoods. But their description of
the area stops again literally half-way. Kingsbury Run
which creates the gulf between Tod and the present Ches-
nutt/Anton Grdina areas has been filled in to a point
just several hundred feet southeast of Sidaway Bridge.
This was done apparently to allow for the building of
homes in the Garden Valley area. The families who came
to occupy these homes were a major source of the increased
enrollment in the Kinsman area in the 1950s. The filling
of Kingsbury Run for this construction left only a small
84
valley with sloping sides of perhaps 100 feet separating
the Garden Valley residences from the Tod. area. Yet
no access was created between the neighborhoods, and,
as discussed above, the one existing access route was per-
mitted to fall into disrepair. This is an extremely unusual
pattern. One reasonably might expect that at least one
access route between these areas would have -been de-
veloped by the city to facilitate public safety, i.e. access
of fire and police vehicles. This did not occur.
Since the topographical modifications in this area, all
that was necessary to allow school children to have access
from one area to the other was the construction of a
few hundred feet of sidewalk. The omission of the city
in taking any actions to establish connections between
these areas can reasonably be viewed as conduct by public
officials aimed at fostering the virtual total racial segre-
gation of both these neighborhoods. The court is not so
naive as to believe that school officials could not have
worked with city officials to have such a sidewalk con-
structed, if all of these public officials were not seeking
to promote the separation of these neighborhoods. The
1954 change in the Tod attendance area appears to have
been a part of a pattern of public action directed at encour-
aging this separation. In fact, it appears to have been
the coupe de grace which cleaved these two neighborhoods
from one another. Under these circumstances, the court
views any reliance by the local defendants on the exist-
ing physical isolation of the Tod area as a defense to
the racial isolation at Tod school as unacceptable in view
of the role which their predecessors appear to have taken
in bringing about this separation.
The inaccessibility of the available space.at Tod con-
tinued to be significant into the late 1960s in sim Dle.terms
of efficient utilization of school facilities, For ease of
_— © Loe att
etehanininit nied Tae 4, Te ae
ent teeeNely
Sew Dee Bilal Li Rat OOE RRA Cato!
85
reference, the enrollment and proportion of black students
enrolled at Tod from 1953 through 1970 are listed below:
enrollment/capacity proportion black
1953 251/490 28.7 %
1954 188/490 6.38%
1955 174/490 1.15%
1956 197/490 2.54%
1957 200/490 2.50%
1958 202/490 1.49%
1959. 100/490 1.00%
1960 169/490 59%
1961 185/490 0%
1962 213/490 0%
1963 n/a n/a
1964 209/490 0%
1965 n/a — n/a
1966 n/a n/a
1967 237/490 1.68%
1968 230/490 0%
1969 216/490 92%
1970 206/490 1.78%
In 1959, an addition to Chesnutt (97.5%, 863) was built:
raising its capacity from 630 to 875. In the same year,
the newly constructed Anton Grdina Elementary School
(97.6%, 687/665) opened, providing further relief for the
continued overcrowding at Kinsman (’58: 99.27%, 1361/
980, 59: 100%, 979/980). But for the five years prior
to this construction, both Chesnutt and Kinsman had been
86
seriously over enrolled, while the utilization rate at Tod
was consistently under 50%. In the early 60s, for the
most part the overcrowding at these schools appears to
have been resolved, although sometimes enrollments
slightly exceeded theoretical capacity.
Then in August 1967, Kinsman was razed by a fire,
necessitating the emergency reassignment of its students
by the opening of classes in the fall. (The last available
figures for Kinsman are from 1964 and show the school
to be 100% black and to have an enrollment of 941/945.)
Students were reassigned to Grdina (100%, 1049/1015) *,
Chesnutt (100% 849/875), and Dike (100%, 638/805).
Those assigned to Dike were taken to school by bus. Giv-
ing full consideration to the emergency conditions, the
court is compelled to view at least the reassignment of
students to Dike as deliberately segregative. Kinsman,
as of the date of the last available figures had a totally
black student population. After the fire its students were
assigned to three likewise totally black schools. Two of
these schools were apparently within walking distance of
the Kinsman attendance area. To enable students to attend
Dike, however, the school authorities provided bus trans-
portation to Dike. Oddly, while the local defendants pro-
vided the court with measurements of the purported dis-
tances from Kinsman School to nine other schools in the
general area, they overlooked the distance from Kinsman
to Dike. The court’s measurement of this distance is 8,100
feet. Of course, when the decision was made to bus Kins-
man students, walking distances were of little relevance.
The decision to bus a group of all black students to an
all-black school could only be viewed as not being evidence
of intentional segregation, if it could be convincingly dem-
*Reflects new capacity based on addition of 9 classrooms to
Grdina in 1963.
Sn ae ieee ee
87
onstrated that there were no available integrative alterna-
tives.
Although Kinsman was a totally black school, its at-
tendance area apparently bordered areas with substantial
numbers of white residents whose children attended public
schools. The plaintiffs have. called attention to several
schools which presented integrative opportunities and had
1967 enrollments which were less than their basic capacity:
1967
enrollment/capacity proportion black
Tod 237/490 1.68%
Union 408/490 0.98%
Wayne 453/665 36.42%
Rice 504/1120 50.59%
Mt. Auburn 379/700 « 53.56%
The only one of these schools for which the local defen-
dants offer any explanation for not availing themselves
of the integrative alternative is Tod. The school officials
note that there was no furniture available for the use
of Kinsman students at Tod. They fail to explain why |
classroom furniture could not have been transported to
Tod. They also note that one or two of the Tod class-
rooms were in need of replastering. Such maintenance
could have been accomplished within a month if school
officials had any commitment to achieving integration
where possible. Finally, the school authorities note that
Tod is across Kingsbury Run from the Kinsman attendance
area. As noted above, the decision to use bus transporta-
tion minimizes any dangers to the children’s safety. The
local defendants’ explanations for rejecting Tod as a loca-
tion for reassigning. Kinsman students are unconvincing.
The court finds that Tod was not considered as a site
88
for reassignment of Kinsman students because it would
have been inconsistent with the Board’s practice of main-
taining Tod as a white school. The Board’s intention to
so operate Tod has been clear since 1954 when its enroll-
ment dropped from, 251 to 188 and the proportion of blacks
enrolled dropped from 28.7% to 6.38% and then to 1.15%
in 1955.
The court is compelled to note what it. perceives as
a lack of candor in the response E-19 by the local
defendants. As noted previously, though the Board found
walking distances to be relevant to its reply, it neglected
to include the distance to Dike. More significantly, other
measurements of distances appear to be significantly in
error, including the following: a
Board’s figure Court’s measurement
Union 11,900’ 7,800
Boulevard 7,900’ 4,900’
Mt. Auburn 8,400’ 6,100’
This appears to be one of the more blatant segregative
incidents in the record of this case.
At the southeastern edge of the core of black schools,
a series of student assignment decisions hint at the sensi-
tivity of school officials to the race of students affected
by changes. Thus in 1948, overcrowding at Quincy (99.9%,
748/665) was addressed by a boundary change assigning
part of its attendance area to
This text is long and has been trimmed here. Open the source document for the complete record.
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