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

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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

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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

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Appendix — Cleveland Board of Education v. Robert Anthony Reed, III · 445 U.S. 935 | Frix