# Appendix — Cleveland Board of Education v. Robert Anthony Reed, III

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1980
- **Citation:** 445 U.S. 935

## Text

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

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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. =
built two permanent structures in this area, one an ex- Total 3329/4200 3272/4200

tremely small, virtually all-white school with an abnormal
grade structure and the other a virtually all-black school
which three years after its opening was operating with
221 available pupil stations. This figure happens to be

at .

114

One thing should be made clear. The court is not suggest-
ing that all construction activity in this area was inappro-
priate. It recognizes that this was an area where new
homes were being constructed. Rather, the court concludes
that less construction was required and could have resulted
in more integration.

Plaintiffs allege that in 1958 an addition was con-
structed at Gracemount (27.3%, 829/840}. In its response,
the board states that the purpose was not to add new
classroom space but rather to replace a temporary unit
already existing at the school. PX 74 reveals that this
construction, however the defendant might characterize
it, resulted in an additional 105 pupil stations at Grace-
mount. Noteworthy, too, is the fact that the board, in
its own response, states that the enrollment at Gracemount
was steadily decreasing for the five year period imme-
diately preceding the construction.

It is also significant that Gracemount, in 1958, was
not overcrowded (830/840). Given the fact that schools
in the Hough area were bursting at the seams in 1948,
it is difficult to explain the decision to add unnecessary
classroom space to a school that was not overcrowded
and whose enrollment had been steadily decreasing.

An analysis of the surrounding schools, once again,
is revealing:

1958 1959
Rickoff 93.3% 970/1150 168% 993/1155
Cleaveland 47.6% 748/1120 51.7% 1158/1120
Beehive 93.4% 668/1015 55.3% 7854/1015
Williams 0% 468/490 0% 491/490

115

Since all of the above schools (with the marginal
exception of Williams) were operating well below capacity,
the only reason for construction at Gracemount would
be to add capacity so as to foreclose the possibility of
some of its students being re-assigned to Rickoff, Moses
Cleveland, or Beehive, all of which had substantially higher
percentages of black students.

In 1962, a boundary change was effected whereby
part of the Beehive (80.2%) attendance area was trans-
ferred to Brewer (99.6%). This process was repeated
in 1964 when the racial percentages of the two schools
were 83.9% and 99.6%, respectively.

These boundary: changes appear to have had only a
minimal impact on the racial isolation at Brewer and other-
wise appear to reflect a reasonable utilization of the two
schools involved. In addition, the boundary changes re-
duced the number of school children who had to cross
the Erie Railroad tracks.

Noteworthy, though, is the School Board’s sense of
priorities with regard to overcrowding in this general area
during the time period involved. While slight overcrowd-
ing at Beehive precipitated these boundary changes, noth-
ing was done to relieve serious overcrowding at Cranwood ©
(62: 15.7%; ’64: 26.6%). Cranwood had a capacity of
only 175 and was over enrolled by 67 in 1962, and by
92 in 1964. Moses Cleaveland (62: 79.1%; 64: 85.8%)
was under capacity in these same years by 73 students
and 34 students. It would appear that the board was
unwilling to adopt the boundary change approach so as
to relieve the Cranwood overcrowding for fear that assign-
ing pupils to an identifiably black school would contribute
to the “tipping” of the neighborhood.

116

In 1967 the Emile B. deSauze school opened 93.4%
black with an enrollment of 528 and a capacity of 840.
Assuming deSauze was opened in 1966, it most probably
was planned around 1964, or at the very least, using 1964
data. The following chart depicts the area-wide situation
at that time.

1964 enrollment/capacity

Brewer 99.6% 482/560
Moses Cleaveland 85.8% 1086/1120
Gracemount 93.2% 610/945
Williams 39.4% 561/490
Beehive 83.9% 1048/1015
Cranwood 26.6% 267/175
4054/4305

As the above chart shows, the area had approximately
251 pupil stations available in 1964 which might reasonably
have been viewed as insufficient to accommodate growth
in student population in the area. Thus, it was reasonable

».. to construct an additional school in the area. The issue,

‘ however, is the site selection for the new school.

The board, in its response, states that deSauze was
built to relieve overcrowding at Beehive, which, in 1964,
was only marginally overcrowded. By placing deSauze
in the extreme southeast corner of the city, its student
population could come only from Beehive (64: 83.9%)
and Brewer (’64: 99.6%). Under these circumstances,
deSauze was predestined to, and did in fact, open predom-
inantly black (’67: 93.4%).

At the same time that Beehive went slightly over-
capacity, the situation at Cranwood was much more severe

117

(64: 26.6%; 267/175). If deSauze had been placed in
the vicinity of Oakdale and East 154th Streets, it could
have absorbed the overcrowding at Beehive, as well as
the excess students from Cranwood. The result would
have been an integrated school, not a foreseeably and
predominantly black school.

It should also be noted that Cranwood became a full
K-6 school in 1968 and that this change necessitated an
addition to the school. Yet another addition was built
in 1969. It must be assumed that the decision to convert
Cranwood to a K-6 school was made well in advance
of its implementation. Had deSauze been constructed be-
tween Brewer and Cranwood, the need for the construc-
tion of additions at Cranwood could have been obviated.

The year 1967 was also marked by the construction
of the Adlai E. Stevenson school (99.3%, 680/875). In
order to create an attendance area for Stevenson, several
boundary changes were effected. A portion of the Wil-
liams (99.4%, 354/560) was given to Stevenson as was
part of the Gracemount (99.8%, 945/945) area. Both
Moses Cleaveland (97.9%, 1174/1120) and Rickoff (99.8%,
1083/1155) contributed part of their attendance areas to
Gracemount.

By this time, the affected area had become virtually
all black so that these actions did not actively add to
the racial impaction of the area. There simply were no
integrative alternatives to be found, and the underlying
problem of overcrowding was resolved by these actions.
It is indeed ironic that the absence of integrative alterna-
tives was in large measure due to the prior segregative
acts of the Board, which refused to make step-by-step
boundary changes while there remained a significant pro-
portion of white students in the area schools.

a

118

Cranwood became a full K-6 school in 1968 when
an addition consisting of 9 classrooms was opened. At
that time, Cranwood was 82.5% black with an enrollment
of 575. As a result of the change in grade structure,
a boundary change was effected so that 4th-6th graders
in the Cranwood attendance area could now attend Cran-
wood rather than Miles (51.58%, 747/700) and Moses
Cleaveland (98.05%, 1177/1120).

It should also be noted that in 1967, prior to the
addition at Cranwood, some Cranwood students were trans-
ported to deSauze (93.37%, 528/840). All of the above
actions appear defensible, especially since the only integra-
tive alternative would have been Miles (51.6%) which
was overcrowded and, in fact, the school from which the
Cranwood K-4-6’s were retrieved.

In 1968, some Cranwood (82.5%, 623/600) students
were assigned to deSauze (99.05%, 317/840) where space
was available. In 1969, an additional 12 classrooms were
constructed at Cranwood, which in that year had an enroll-
ment of 821. Given the enrollments of the surrounding
schools, the addition appeared necessary, there being no
viable integrative alternatives to the construction. Once
again, these specific actions by the Board appear defen-
sible.

Finally, in 1969, part of the attendance area for Bee-
hive (98.6%, 888/1015) was transferred to deSauze (100%,
354/850).

This action by the Board points up the problems cre-
ated by deSauze’s site selection which was alluded to in
the analysis of that school’s construction.

The board states that this action was taken to relieve
overcrowding at Beehive and had the added advantage
of allowing pupils in the affected area to attend school

ae

119

without having to cross the railroad tracks that bisect
the Beehive attendance zone.

Whether Beehive was actually overcrowded in 1969
is questionable. According to PX 39, Beehive had 888
pupils while the board places the figure at 1006. Neither
figure exceeds Beehive’s PX 74 capacity of 1015.

Although this action eliminated the need for some
Beehive pupils to cross the railroad tracks, a large portion
of the Beehive area was south of the tracks and children
living there were not so fortunate. The placement of
deSauze was in complete disregard for safety considera-
tions which the board had stressed so strongly.

If deSauze had been constructed in the area of Oak-
dale and E. 154th Street, much would have been achieved.

First, the school would have drawn its student popula-
tion from Beehive and Cranwood, and opened integrated.
Second, the railroad tracks would have become a natural
boundary and no student attending either Beehive or the
relocated deSauze would have had to cross those tracks.

It is difficult to understand how the reasonableness
of the above analysis escaped the board, unless it was
deliberately ignored. Students in the present deSauze area
can walk to Brewer by using side streets to reach Tarking-
ton, which dead ends at Brewer. Had deSauze been lo-
cated as the court suggests, it would have eliminated the
crossing of the railroad tracks and provided the board
with an integrated school together with the potential to
relieve overcrowding at several others.

&

SOUTHEAST CORRIDOR

For purposes of analysis, the court has focused the
evidence by considering the conduct of school authorities

120

as it related to discrete geographical areas of the school
system. In developing a chronological understanding of
how conditions evolved in each area, the court has then
been able to compare what was happening in different
areas at different times. Any method used to organize
such a voluminous record at some point must be recognized
to be somewhat arbitrary. The focus of activity with
regard to student assignment decisions shifted gradually
over the years. Thus, the next grouping of incidents to
be considered is perhaps the most difficult to understand,
as it involves a geographical area where the conduct ex-
amined did not radiate from a center, but rather involves
incidents occurring along a corridor between the Central
and Beehive areas, considered supra.

The first incident in this area considered in the plain-
tiffs’ proofs was the creation in 1928 of two contiguous
optional zones, one allowing students from Lafayette (’40:
38.4%) to attend Rice (’40: 0.77%), if they so chose, and
the other allowing the reverse option. The data is not
available to analyze the effect of these options when they
were created. Their continuance from 1940 to at least
1964 appears to have had a foreseeably segregative effect
as Rice was less than 5 percent black through 1959 and
only 12.4 percent black in 1964. Meanwhile Lafayette
was more than 50 percent black from 1944 on and more
than 90 percent black from 1954 on. Since the options
created a situation where children exercising the option
from each zone might literally cross each other’s path,
there appears to be no convincing safety explanation for
this zone. The explanation of local school authorities that
it might have been the result of parental pressure to have
children attend the older Rice school, which the parents
might have attended as children themselves, is unconvinc-
ing since Lafayette had been open nine years at the time

121

of the creation of the optional zone, according to P.X.
223.

In 1938 an optional zone was created allowing children
from a portion of the Rickoff (’40: 8.9%) attendance area
to go to Fulton (’40: 11.78%), if they so chose. Again
there is no data which allows the court to assess the
impact of this action at the time it was taken. However,
in contrast to the dual optional zones just discussed, the
creation of this particular zone appears to have been
neutral in terms of racial effect. Both schools were experi-
encing 2 general gradual increase in the proportional black
enrollment which was roughly parallel. It does not appear
that the effect of the zone was to allow white students
to attend a plainly identifiable white school nor to channel
black students to an identifiably black school rather than
the school to which they would normally be assigned.
The termination of the zone in 1960 also appears justified,
as the sending school was under enrolled while the receiv-
ing school was somewhat over enrolled. The pattern of
allowing Rickoff students various other options, discussed
below, however, does suggest that this action should not
be judged separately, but as part of the series of decisions
made with regard to Rickoff. This is done, infra.

In 1940, three optional zones were created in this
area, the effect of which was to contribute to the identifica-
tion of the sending school as the “black” school and the
receiving school as the “white” school in each instance.
The first of these zones allowed children from an area
of the Cleaveland (7.4%, 1065/1120) attendance area to
go to Corlett (3.1%, 524/630). During the 20 year period
from 1940 to 1960, this zone gave white children residing
in the affected area the option of avoiding Cleaveland
which was becoming progressively more black during the
1940s. That the zone did not operate in an integrative

122

manner is evident from the fact that Corlett’s black enroll-
ment remained very small during the 1940s and in fact
dropped from 3.05 percent in 1940 to 2.7 percent in 1950.
When Cleaveland became more than 50 percent black in
1949, Corlett had a black enrollment of only 14.8 percent.
The argument of the local defendants that the zone was
created because of safety considerations is unconvincing.
Where safety is the true concern, the convincing response
is a boundary change.

The second optional zone created in 1940 was from
Rickoff (8.9%, 932/1155) to Dickens (5.5%, 636/1015).
From the following enrollment figures, it is obvious that
the zone operated as an escape valve for white students
in the affected area until at least the late 1950s:

"40 "45 50 D5 60
Rickoff 8.9% 14.0% 25.1% 70.7% 97.5%
Dickens 5.5% 7.2% 8.6% 31.9% 88.2%

Again the proffered safety explanation of the local defen-
dants is unconvincing, all the more so since the zone created
the safety hazard of having to cross 140th Street, appar-
ently at least a major local traffic artery, for the students
exercising the option.

The third optional zone also involved Rickoff, allowing
children from yet another part of the attendance area
to go to Corlett (3.1%, 524/630), if they so chose. While
it is true that the receiving school in this instance was
closer to the affected area, the safety factors on which
the Board relies are not persuasive. This is particularly
so in view of the numerous options which were being
created for various parts of the Rickoff area at this time.
Again the suggestion that parental desire to have children
attend the same elementary school which the parent might

123

have attended does not seem persuasive when the sending
school had been open for such a considerable period.
Parental pressure may have been involved, but the generat-
ing circumstances appear to be other than those suggested
by the local defendants. Since Corlett remained a pre-
dominantly white school until the 1950s, while Rickoff
became increasingly black, the effect of the continuation
of the zone was plainly segregative for a period of at
least 20 years.

Four of the five optional zones considered thus far
in regard to the corridor area appear to have been calcu-
lated to remove whites from schools which were becoming
increasingly black. The absence of convincing racially
neutral explanations for the creation of these zones points
strongly to the conclusion that this was not only the fore-
seeable effect, but the purpose of these actions. Such
a conclusion is further bolstered by the fact that there
is no suggestion that problems of over enrollment existed
at any of the sending schools to explain the sudden interest
in creating optional zones in this area. These four optional
zones are apparently still in existence. Now all of the
schools involved are overwhelmingly black, so the continu-
ing direct effect of these zones as contributing factors
to the present racial isolation existing in Cleveland schools
must be viewed as de minimis. This does not undo, how-
ever, their indirect contribution to the current residential
segregation. Had school authorities not acted so as in
essence to direct white students away from certain‘schools,
families with school age children might have made dif-
ferent decisions with respect to staying in the general
area or moving into it. A notable characteristic of the
corridor area, which the present discussion addresses, was
that there were a number of schools in the area which
had some degree of stable integration cver significant time

124

periods. This suggests that for some time the underlying
residential patterns in this area were developing in a fairly
integrated way. The actions of school authorities in chan-
nelling white students away from some schools in such
circumstances must be viewed as contributing to the desig-
nation of certain residential areas as “black neighbor-
hoods,” i.e. portions of the attendance area of schools such
as Rickoff and Lafayette. Thus the actions of the school
officials appear to have contributed to racial residential
concentration, which might not otherwise have developed.
This type of relationship between the actions of school
officials and emerging residential patterns is discussed in
greater detail, infra.

In 1944, the Lafayette (53.5%, 583/1085) to Rice
(0.9%, 5382/1120) optional zone was expanded. That the
intent in expanding this zone was not to promote inte-
gration at Rice by encouraging the transfer of some black
students from Lafayette is clear from the fact Rice re-
mained less than 50 percent black until 1967, 23 years
after the creation of this option. The foreseeable effect
was to give white students in the affected area an escape
valve from the increasingly black Lafayette to the over-
whelmingly white Rice. The only explanation offered by
the local defendants was that Rice was the “parent” school,
Lafayette having opened later, and that parents would
want their children to attend the school which other mem-
bers of the family had attended. This explanation is sim-
ilar to that offered to explain the 1928 creation of the
dual optional zones between Lafayette and Rice. Clearly
the court must conclude that the local defendants were
desperate in making such an argument. While school loy-
alties do develop, they are not so intense at the elementary
school level in common experience to cause an otherwise
unnecessary assignment decision 25 years after the “new”
school had opened.

125

In 1941 yet another optional zone was created, allowing
students in an additional portion of the Lafayette (38.4%,
5993/1085) attendance area to go to Rice (2.0%, 565/1120).
This time the local defendants indicate while the reason
for creating the optional zone is unknown, it did permit
children in the affected area to ride the 116th Street bus
to Rice. They do not, however, attempt to explain why
children would need to ride a bus to a school which was
3800 feet from the center of the affected area, when they
lived approximately 1600 feet from the school to which
they were originally assigned. The reason for the creation
of this optional zone, as well as the three previous optional
zones affecting these two schools is apparent when one
reviews the proportional black enrollment at the two
schools, as set forth below:

Rice Lafayette

1940 0.66% 38.40 %
1941 0.55 40.84
1942 0.8 43.8
1943 0.9 48.8
1944 —_— 53.5
1945 1.13 58.46
1946 1.45 65.40
1947 1.03 69.06
1948 1.99 72.07
1949 1.23 74.51
1950 1.48 78.33
1951 2.0 78.4
1952 2.4 86.5
1953 2.3 89.4

1954 2.41 91.58

126

Plainly the racial isolation at these two neighboring schools
did not just happen. It was the result of the manipulation
of assignment patterns within a supposedly racially neutral
neighborhood school program.

In 1951, an optional zone was created allowing students
in a certain portion of the Fulton (’51: 38.8%, 518/700)
attendance zone to go to Rickoff (’51: 29.9%, 625/1155).
Frankly, this action presents an analytical puzzle. If the
local defendants’ description of the area affected by this
boundary change is accurate, the affected area was not
contiguous to the attendance area of the receiving school,
according to the 1947 map showing attendance boundaries.
No explanation for the creation of such an unusual option
has been proffered by the local defendants. The sending
school was plainly closer to the affected area than the
receiving school. There was no problem of overcrowding
at the sending school. Both schools appear to have been
enrolling an increasing number of black students. The
receiving school did have a smaller percentage of black
students, however, and the reasonable conclusion appears
to be that white students in the affected area were being
afforded the opportunity to attend a “whiter” school, if
they so chose. Because of the above noted peculiarities,
however, the court reaches this conclusion with less cer-
tainty than it has in its analysis of other alleged incidents.

Students in a portion of the Mt. Auburn (1.4%, 289/
700) attendance area were given the option of attending
Woodland (8.1%, 614/595) from 1952 until 1967. (The
plaintiffs indicated that the option ran in the opposite
direction, but this is not in accord with the 1967 school
boundary map.) The defendants argue that this zone had
an integrative effect, inviting the assumption that the af-
fected area was a predominantly white residential area.
If this assumption is correct, so is the defendants’ argu-

127

ment. Certainly the option seems justified in terms of
distances, being approximately 2200 feet closer to the re-
ceiving school than to the sending school. On the other
hand, the action seems odd in view of the fact that the
sending school was operating at approximately 40 percent
of its capacity, while the receiving school was slightly
over enrolled. Without information on the predominant
racial composition of the affected area, which is not avail-
able to the court, it is not possible to determine whether
this action was racially neutral, integrative, or segregative.

In 1954, students living in a specified part of the
Lafayette (91.6%, 701/1085) area were given the option
to attend Mt. Pleasant (19.5%, 559/665). In reviewing
this zone, it should be noted that the explanation of the
school authorities based on distances appears to be founded
on faulty measurements. While the local defendants say
that Lafayette was 3,000 feet from the middle of the af-
fected area, the court measures the distance at roughly
2300 feet; similarly the distance to Mt. Pleasant was said
to be 1,600 feet, but the court measures that distance
at a minimum of 1,700 feet from the affected area. While
these figures would mean that Mt. Pleasant was approxi-
mately 600 feet closer to the center of the affected area,
such a relatively short savings in walking distance surely
could not justify having the children cross Kinsman, a
major thoroughfare, if safety were the paramount con-
sideration which the local defendants have steadfastly
maintained it to be. Further, the optional zone can not
be justified in terms of over enrollment. The only ap-
parent explanation is the disparate proportion of black
enrollment at the two schools. In 1954, Lafayette was
91.6% black. Although specific information on who lived
in the affected area is not available, the court concludes
that apparently when its black enrollment reached 90%

128

plus at Lafayette, the school authorities decided to provide
an escape valve to Mt. Pleasant for some of the white

children.

In 1955, two optional zones were created giving stu-
dents from specified portions of the Boulevard (8.2%, 462/
700) and Revere (0%, 848/1015) attendance areas the
choice of attending Mt. Pleasant (25%, 544/665). These
two zones appear to have been justified, since the receiving
school was considerably closer to the affected areas than
either of the sendin

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1282%3A2. Public record. Not legal advice.