Appendix — Indianapolis Board of School Commrs. v. Metropolitan School District

80-129 JUL 28 1980

No.

| MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

BOARD OF SCHOOL COMMISSIONERS OF THE

CITY OF INDIANAPOLIS, INDIANA, et al.,

Cross-Petitioners,

V.

THE METROPOLITAN SCHOOL DISTRICT OF

PERRY TOWNSHIP, MARION COUNTY, INDIANA, et al.,

Petitioners.

CROSS PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

IPS APPENDIX

WILLIAM L. TAYLOR

CENTER FOR NATIONAL POLICY

REVIEW

Catholic University Law School

Washington, D.C. 20064

202/832-8525

JOHN Woop

BAMBERGER AND FEIBLEMAN

45 North Pennsylvania

Indianapolis, Indiana 46204

Attorneys for Cross-Petitioners

ee

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

INDEX

Page

District Court Opinion, dated August 18, 1971 ............ la

District Court Opinion, dated July 20, 1978 00.00.0000... 10a

Supplemental Memorandum of Decision, dated Decem-

SOE iy. SUITE sicccseéciichtdlisceiesssntcnn sin seetanstbpchibbconieted cannes 44a

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APPENDIX

UNITED STATES DISTRICT COURT

S. D. INDIANA

INDIANAPOLIS DIVISION

No. IP 68-C-225

UNITED STATES OF AMERICA,

. Plaintiff,

THE BOARD OF SCHOOL COMMISSIONERS OF THE

CITY OF INDIANAPOLIS, INDIANA, et al.,

Defendants.

Aug. i8, 1971

(Including only 661-665 and 673-674)

C. Housing Policy

Before turning attention to the schools, however, an-

other area of segregation needs mention, and that is in

the matter of housing. Just as was the case in Virginia,

so in Indianapolis persons of African descent were pres-

ent from the beginning. It has been recorded that on the

very mission which resulted in the location of the new

state capitol on the banks of Fall Creek, Governor Jen-

nings was accompanied by a Negro boy known to history

only as Bill.*7 More to the point, Ephriam Ensaw, a freed

man who worked for wages, settled in the new town,

along with various white settlers, even before the sur-

veyors had finished staking the lots.** However, by the

time the first German and Irish immigrants had been

imported in 1836 to work on the Central Canal, most

Negroes were to be found in “Colored Town,” on the out-

skirts of the mile square,*® and were later concentrated

in the area around Indiana Avenue.

27 Leary, Indianapolis The Story of a City (1970), p. 8

(hereinafter “Leary’’).

28 Tbid., p. 13.

2° Tbid., p. 50.

2a

Segregation in the housing of Negroes in Indianapolis

has persisted at least until the date of the filing of this

action.” As the evidence in this case discloses without

conflict, Negroes were discouraged from purchasing homes

in predominantly “white” neighborhoods by various meth-

ods: white realtors refused to show such homes to Ne-

groes (and no Negro real estate broker was permitted to

become a member of the Indianapolis Real Estate Asso-

ciation until 1962), a two-price system was used: a real-

istic market price to whites and a ridiculously inflated

price to Negroes, lending institutions refused to finance

homes sought to be purchased by Negroes in “white”

areas. Those pioneering Negroes who nevertheless over-

came all obstacles and succeeded in purchasing such a

home were then harassed by such devices as threatening

and obscene telephone calls, stones hurled through win-

dows, neighborhood ostracism, etc.*' Certain streets and

other landmarks, such as Fall Creek, White River, cer-

tain railroad tracks, ete., were regarded at different times

as barriers to be hurdled by Negroes at their peril.

In addition to pressures of the foregoing type, applied

by individual whites, residential segregation was also en-

forced by law, in many instances. Perhaps the best known

method was by means of the racial covenant which, when

inserted into a deed or plat of a real estate subdivision,

limited ownership of the lot to persons of the white race.

As may be noted from a cursory observation of plats

recorded in the plat books kept in the office of the re-

corder of Marion County, many of the better known sub-

%° The Civil Rights Act of 1968, Pub.L. 90-284, 82 Stat. 81,

42 U.S.C. §§ 3601 et seq. was not fully effective until] Decem-

ber 31, 1969, and its effects have barely begun to be felt.

31 One who received such treatment was Mr. Grant Hawk-

ins, a graduate of Indiana University, successful businessman,

and first Negro member of the School Board. For a more

detailed discussion, see Thornbrough, pp. 22-29.

3a

divisions, such as Williams Creek Estates, Broadmoor

Estates, Meridian Hills, Highwoods Addition, Forest

Hills, Wellington Estates, Fall Creek Highlands, Green-

slopes, Wynedale, Ellenberger Plaza, and Meridian-Kess-

ler Terrace, contained such covenants, which were rou-

tinely enforced until held unconstitutional in 1948.

As shown by the evidence herein, the City of Indian-

apolis took official action to enforce segregation in 1926

when the City Council, with only one dissenting vote,™

adopted General Ordinance No. 15, making it unlawful

for any Negro “‘to establish a home-residence on any prop-

erty located in a white community or portion of the

municipality inhabited principally by white people * * *,”

or for a white person to commit the same act in a Negro

community. The ordinance imposed a fine and imprison-

ment for violation, and further provided that each seven

days maintenance of such a residence would be deemed

a separate offense.** Passage of the ordinance was noted

by The Indianapolis News, then and now one of Indiana’s

leading newspapers, which stated that “Sincere convic-

tions are represented in the ordinance * * *” and “Pa-

tience and forbearance are called for.” ** When the

Marion Circuit Court held the ordinance unconstitutional

a short time later, The Indianapolis News had a plan of

32 The plats of Kessler Park and Crippin’s River Park Addi-

tion were recorded with racial covenants in 1949, after they

had already been held unconstitutional by the Supreme Court

in Hurd v. Hodge, 1948, 334 U.S. 24, 68 S.Ct. 847, 92 L.Ed.

1187.

%8 The Honorable Edward B. Raub voted in the negative.

%4 The Mayor and most members of the City Council of this

period (not including Raub) had been elected with the sup-

port of the Ku Klux Klan. For a short summary of the Klan

era see Leary, Ch. 23.

85 The Indianapolis News, editorial, March 16, 1926.

4a

action. “One thing should be done as soon as possible,”

it editorialized, ‘and that is to pave the streets in colored

neighborhoods, and make them so attractive that there

will be no desire to get out of them * * *. The surround-

ings should be made as good as those in white sections,

so that there may be no reason for leaving them.” ** As

recently as July 4, 1963, the major Indianapolis news-

papers, in their real estate want ad columns, used the

designation “for colored,” or “col.” in describing residen-

tial property in certain sections of the city.

It is common knowledge that in many small towns and

a few larger ones in Indiana the custom that Negroes

were not allowed to stay overnight was so invoidable that

it had the force of law and was actually enforced by local

officials.*7 Thus today it is noticeable that almost no

Negroes are to be found in communities adjoining the

School City of Indianapolis. Marion County has three

municipalities other than Indianapolis, all contiguous to

the School City. Beech Grove, an industrial community

of 13,432, has a Negro population of 19. Speedway City,

a similar type community, has 68 Negroes out of a total

population of 14,951, while Lawrence has 216 Negroes

out of a total population of 18,997. Of Marion County’s

792,299 residents, 134,474 or 17% are Negro. Of these,

approximately 122,086, or 98.5% are confined to the cen-

tral area served by the defendant School Board.”*

The Bureau of the Census recognizes approximately

250 standard metropolitan statistical areas in the 1970

census.*® Such an area is a county or group of contiguous

counties which contains at least one city of 50,000 or

36 Thid., November 24, 1926.

87 Thornbrough, p. 21.

38 All statistics are based upon the 1970 census.

39 Bureau of the Budget, Standard Metropolitan Statistical

Areas (1967, as supplemented).

Ba

more inhabitants and which according to certain criteria,

are socially and economically integrated with the central

city. The Indianapolis Metropolitan Statistical Area has

1,109,882 inhabitants and includes, in addition to Marion

County, the contiguous counties of Boone, Hamilton, Han-

cock, Hendricks, Johnson, Morgan, and Shelby. The 1970

census figures reflect a total of 2,849 Negroes out of a

total population of 317,583 residing in these seven subur-

ban counties, a percentage of 0.897.

D. School Policies to 1949

In early Indiana, as has been seen, the Negro lacked

many of the rights which are the ordinary attributes of

citizenship. The plain fact is that, although entitled to

certain rights under Indiana law, such as the right to

own property and the right to personal liberty, Negroes

were not considered to be citizens of the State until the

adoption of the Fourteenth Amendment to the Constitu-

tion of the United States.*° For this reason, many of the

rights conferred upon citizens by the successive Indiana

Constitutions were construed as not applying to Negroes.

Thus in an early case it was held that Negro children

could not attend school with white children over the pro-

test of a white parent, even if they paid their own tui-

tion.*! A statute in faxge in 1861 barred Negroes, mulat-

toes and the children of mulattoes from admission to the

common schools.** After the adoption of the Fourteenth

Amendment, the General Assembly in 1869 enacted a law

providing, for the first time, for the education of Negro

children, but providing also for them to be organized into

separate schools. The statute provided that if there were

not a sufficient number of such children within attending

40 Cory, et al. v. Carter, 1874, 48 Ind. 327.

41 Lewis v. Henley, et al., 1850, 2 Ind. 332.

42 Draper, Trustee, et al. v. Cambridge, 1863, 20 Ind. 268.

6a

distance to form a school in one district, several districts

could be consolidated; and if there were not enough to

be consolidated within a reasonable distance, “the trustee

* * * shall provide such other means of education for

said children as shall use their proportion, according to

members, of school revenue to the best advantage.” **

The case of Cory et al. v. Carter “* was commenced by

Carter, a Negro parent of school age children, against

the school officials of Lawrence Township, Marion County,

to compel them to accept his children as pupils in the

“white” district school, such officials having failed to pro-

vide any school in that or any adjoining district near

enough for his children to attend, whereby they were

denied the right to attend any school at all. He secured

an order of mandate from the Marion Superior Court,

but the Supreme Court reversed, holding that under the

1869 Act Negro children were not entitled to admission

in common schools provided for the education of white

students. This holding was reaffirmed in subsequent

cases.*°

In about 1868 Indianapolis erected a new school house

and, anticipating the 1869 legislation, assigned the old

building on Market Street for the education of Negro

children.*® A separate elementary school was opened

there in the fall of 1869. Thus at the very inception of

public education for the Indianapolis Negro child, he was

segregated by virtue of State law. As will be demon-

strated later, de jure segregation in the elementary

43 Acts 1869, Ch. 16, § 8, p. 41.

44 Note 40, supra.

45 Greathouse v. Board of School Com’rs, 1926, 198 Ind. 95,

151 N.E. 411; State ex rel. Mitchell v. Gray, et al., School

Trustees, 18838, 93 Ind. 303; State ex rel. Oliver, et al. v.

Grubb, Trustee, 1882, 85 Ind. 213.

46 Leary, p. 118.

Ta

schools continued virtually without change until this ac-

tion was filed, one hundred years later. The situation

with respect to high schools has taken a more erratic

course.

Indianapolis’s first high school was Shortridge, followed

by Emmerich Manual Training and Arsenal Technical.

For more than fifty years no separate high school for

Negro students was established, and after 1877 school

children of both races were permitted to select the high

school of their choice, attending on an integrated basis.‘

However, with impetus provided by a petition from the

Indianapolis Chamber of Commerce, the School Board on

December 22, 1922, adopted a resolution authorizing the

construction of a “Colored High School.” When such

school, Crispus Attucks, was opened in September, 1927,

all Negro high school students were forthwith compelled

to attend it, regardless of their place of residence in the

city. In 1935, Ch. 16 of the Acts of 1869 was further

amended to require the Board to provide transportation

for Negro students required to travel more than a certain

distance by reason of its segregation policies.** Thus was

instituted the policy of tax-paid transportation of school

children (bussing).

Another Act of the 1935 General Assembly is instruc-

tive. A law enacted in 1907 had directed township trust-

ees to abandon all schools under their charge at which

the average daily attendance had been twelve or fewer

pupils. The 1935 act*® added the following proviso:

“Provided, further, that nothing in this act, or in the act

47 Acts 1877, Ch. 81, § 1, p. 124, had amended Ch. 16 of the

Acts of 1869 to require admission of Negro students to white

schools, if no separate school of comparable grade was pro-

vided for Negroes.

48 Acts 1935, Ch. 296, § 1, p. 1457.

* Acts 1935, Ch. 77, § 1, p. 231.

8a

to which it is amendatory, shall authorize the discontinu-

ance of any school exclusively for colored pupils where

such school is the only school for colored pupils in such

school corporation, and any such school heretofore dis-

continued by the operation of such act shall be re-estab-

lished.” (In gum, trustees were ordered by the State to

furnish a separate school building and teacher for the

instruction of, for example, one Negro child attending

primary school, rather than permit that child to attend

a white school).

In 1947, two bills were introduced in the General As-

sembly, each of which had as its purpose the elimination

of segregation based on race, color, creed, etc., in the

public school system. In due time, a public hearing was

held on one of the bills by the House Committee on Edu-

cation, at which time the then Superintendent of Schools

of defendant Board, pursuant to its authorization, ap-

peared and spoke in opposition. Neither bill passed. How-

ever, in 1949 an Act was passed which required desegre-

gation, on a phased basis.®” Thus ended, at least for a

time (see Part VII), the official State policy of segre-

gation.

x ” * *

B. Low-Rent Housing Projects

Low-rent housing projects within the School City have

significantly affected the racial composition of the schools.

A project typical of this kind is constructed at the

periphery of an established Negro residential area and,

for that reason among others, attracts a Negro occu-

pancy, which is eventually reflected in the racial compo-

sition of the school that serves the area in which the

project is situated.

5° Acts 1949, Ch. 186, p. 603; Burns Ind.Stat.Ann, §§ 28-

6106 to 28-6112 (1970), as amended I.C. 1971, 20-4-1-7 to

20-4-1-13.

9a

Such an effect is to be seen in several elementary

schools, including: School 67, in which Negroes consti-

tuted 4% of the student body in 1968-69 and 30.9% in

1970-71, owing to the opening of Eagle Creek Village at

Tibbs Avenue and Cossell Road; School 112, in which

Negroes constituted 13.7% of the student body in 1968-

69 and 42.9% in 1970-71, owing to the opening of Ray-

mond Villa, at Raymond Avenue and Perkins Street;

School 71, in which Negroes constituted 10.8% of the

student body in 1965-66 and 92.6% in 1970-71, owing to

the opening of Hawthorne Place at 32nd Street and

Emerson Avenue; and School 99, in which there were no

Negro students in 1968-69 and in which Negroes consti-

tuted 33.9% of the student body at the end of the 1970-

71 school year, owing to the opening of Beechwood Gar-

dens at 30th Street and Graham Avenue.

Housing projects of the kind just described not only

have racial consequences for the schools; each of them

tends to represent, as well, a demand for a significant

amount of school space. Eagle Creek Village, Raymond

Villa, and Beechwood Gardens necessitated additions to

Schools 67, 112, and 99, respectively, each of which cost

about $1,300,000. Salem Village, at 30th Street and

Baltimore Aevnue, necessitated the construction of a

complete school (School 110), which has served a vir-

tually all-black student body since it was opened in

1966."

81 The plaintiff United States of America, which of course

sponsors federally supported housing projects, has suggested

a finding that the locations of six of the ten projects opened in

the School City since 1965 have tended to promote integra-

tion in those instances. There is insufficient evidence to sup-

port such a finding.

10a

UNITED STATES DISTRICT COURT

S. D. INDIANA

INDIANAPOLIS DIVISION

No. IP 68-C-225

UNITED STATES OF AMERICA,

Plaintiff,

DONNY BRURELL BUCKLEY and ALYCIA MARQUESE BUCK-

LEY, by their parent and next friend, RuBy L. BUCKLEY,

on behalf of themselves and all Negro school age chil-

dren residing in the area served by original defendants

herein,

Intervening Plaintiffs,

v.

THE BOARD OF SCHOOL COMMISSIONERS OF THE

CITY OF INDIANAPOLIS, INDIANA, et al.,

Defendants,

OTIS R. BOWEN, as Governor of the

State of Indiana, et al.,

Added Defendants,

CITIZENS FOR QUALITY SCHOOLS, INC.,

Intervening Defendant,

COALITION FOR INTEGRATED EDUCATION,

Amicus Curiae.

HAMILTON SOUTHEASTERN SCHOOLS,

HAMILTON COUNTY, INDIANA, et al.,

Additional Added Defendants.

July 20, 1973

lla

As Corrected Nov. 12, 1973

Supplemental Opinion Dec. 6, 1973

MEMORANDUM OF DECISION

DILLIN, District Judge.

I.

v

Introduction

This is a school desegregation action originally brought

by the United States on May 31, 1968, pursuant to Sec-

tion 407(a) and (b) of the Civil Rights Act of 1964, 42

U.S.C. § 2000c-6(a) and (b) against The Board of School

Commissioners of Indianapolis, Indiana (hereinafter

IPS), the members of the Board, and its appointed Su-

perintendent of Schools.

On August 18, 1971, this Court found and concluded

that IPS was guilty of unlawfully segregating the public

schools within its boundaries. That decision was unani-

mously affirmed by the United States Court of Appeals

for the Seventh Circuit and review was denied by the

Supreme Court of the United States, without dissent.

United States v. Board of Sch. Com’rs, Indianapolis, Ind.,

D.C., 332 F.Supp. 655, aff’d 7 Cir., 474 F.2d 81, cert.

den., 413 U.S. 920, 93 S.Ct. 3066, 37 L.Ed.2d 1041

(1973). Such issue is res judicata.

In contemplating a remedy to vindicate the rights of

Negro school children, this Court concluded that it could

have ordered a massive “fruit basket” scrambling of stu-

dents within IPS to achieve exact racial balancing. But

the Court also concluded that in the long run, given the

steadily rising percentage of Negro pupils within IPS, the

racial composition of IPS would become nearly all Negro

because of an acceleration in the departure of white

families with children from IPS. In this connection the

12a

Court discussed the “tipping-point” factor—the point at

which white exodus from a school unit is accelerated by

increase of Negro students beyond a certain variable

percent, and noted that the tipping-point/resegregation

problem would become insignificant if the boundaries of

IPS were enlarged to include all of Marion County and a

portion of its contiguous metropolitan region. The Court

does not consider its conclusions in this area as res

judicata.

In order to provide an appropriate adverse setting for

further consideration of the legal and practical appropri-

ateness of a metropolitan plan, the Court ordered the

plaintiff United States to secure the joinder of necessary

parties and seek further relief to determine the answers

to certain questions posed by the Court.

On September 7, 1971, the United States (hereinafter

the Government), pursuant to such order, moved to add

as parties defendant all school corporations in Marion

County, other than IPS. The motion was granted. How-

ever, the Goverrnment failed to assert any claims or seek

any relief against such added defendants. A few days

later the Buckley plaintiffs filed their petition to inter-

vene in this action in their own right and as representa-

tives of a class consisting of Negro school age children

residing in Marion County, Indiana, who are required to

attend segregated schools operated by IPS. The petition-

ers alleged that their interests and those of the class they

represented were not being adequately protected by the

original plaintiff, the United States, because the Govern-

ment had failed to seek relief against the added school

defendants. The Court granted the petition to intervene

on September 14, 1971.

The Buckley intervening plaintiffs (hereinafter plain-

tiffs) eventually joined as added defendants Edgar D.

Whitcomb (since succeeded by Otis R. Bowen), as Gov-

ernor of the State of Indiana; Theodore Sendak, as At-

l3a

torney General of Indiana; John J. Loughlin (since suc-

ceeded by Harold H. Negley), as Superintendent of Pub-

lic Instruction of the State of Indiana; The Indiana State

Board of Education, and nineteen school corporations

within and without Marion County, Indiana (including

the ten in-county corporations joined by the Government),

as follows:

Marion County

The Metropolitan School District of Decatur Town-

ship (hereinafter Decatur)

The Franklin Township Community School Cor-

poration (hereinafter Franklin)

The Metropolitan School District of Lawrence

Township (hereinafter Lawrence)

The Metropolitan School District of Perry Town-

ship (hereinafter Perry)

The Metropolitan School District of Pike Township

(hereinafter Pike)

The Metropolitan School District of Warrén“Pown-

ship (hereinafter Warren)

The Metropolitan School District of Washington

Township (hereinafter Washington)

The Metropolitan School District of Wayne Town-

ship) (hereinafter Wayne)

School City of Beech Grove (hereinafter Beech

Grove)

School Town of Speedway (hereinafter Speedway)

Boone County

Eagle-Union Community School Corporation (here-

inafter Eagle)

l4a

Johnson County

Greenwood Community School Corporation (here-

inafter Greenwood)

Hamilton County

Carmel-Clay Schools (hereinafter Carmel)

Hancock County

Greenfield Community School Corporation (here-

inafter Greenfield)

Mt. Vernon Community School Corporation (here-

inafter Mt. Vernon)

Hendricks County

Avon Community School Corporation (hereinafter

Avon)

Brownsburg Community School Corporation (here-

inafter Brownsburg)

Plainfield Community School Corporation (herein-

after Plainfield)

Morgan County

Mooresville Consolidated School Corporation (here-

inafter Mooresville)

The geographical areas served by IPS and added de-

fendants, with the exception of Greenfield, and Union

Township of Eagle-Union, are reflected on Figure 1.

Also represented thereon, for reasons which will here-

after appear, are territories or parts of territories served

by certain other school corporations bordering on Marion

County, namely, Clark-Pleasant Community School Cor-

poration (Clark) and Center Grove Community School

Corporation (Grove) of Johnson County; Delaware and

Fall Creek Townships, a part of Hamilton Southeastern

School Corporation of Hamilton County; Sugar Creek

l5a

Township, a part of Southern Hancock County Commu-

nity Schools (Hancock) of Hancock County; and Moral

Township, a part of Northwestern Consolidated School

Corporation of Shelby County (Northwestern) of Shelby

County.

The intervening defendant Citizens of Indianapolis for

Quality Schools, Inc., is a not-for-profit corporation whose

members are parents of children in IPS. Its initial at-

tempt to intervene in this action, in opposition to the

original complaint of the Government, was denied by

this Court, although the Court permitted it to attend the

original trial, present argument, and file a brief amicus

curiae. The ruling was appealed and affirmed. United

States v. Board of Sch. Com’rs, Indianapolis, Ind., 466

F.2d 573 (7 Cir. 1972). Subsequently, however, inter-

vention was permitted and intervening defendant par-

ticipated fully in the most recent trial.

Coalition for Integrated Education is an unincorpo-

rated association of individuals favoring a metropolitan

plan of school desegregation, which filed a petition for

leave to appear amicus curiae for the purpose of pre-

senting a desegregation plan, and a supplemental motion

for leave to file a brief. The names of the members of

the association are attached to the original petition. The

motion for leave to file a brief as amicus curiae is

granted. The Court reserves ruling on the petition to file

a plan, as premature.

II.

The Issues

The issues of fact submitted for trial are as follows:

1. Whether or not desegregation of IPS within its

present boundaries (sometimes referred to as an “In-

dianapolis Only Plan”) can be accomplished as required

by the equal protection clause of the Fourteenth Amend-

loa

ment in such a manner as to “work,” within the mean-

ing of Green v. County School Board, 391 U.S. 430, 88

S.Ct. 1689, 20 L.Ed.2d 716 (1968): “The burden on a

school board today is to come forward with a plan that

promises realistically to work...”

2. Whether or not any of the added defendant of-

ficials of the State of Indiana, their predecessors in of-

fice, or the added defendant The Indiana State Board

of Education have acted to promote segregation, or failed

to carry out duties imposed upon them by law in such

a manner as to promote segregation or inhibit desegrega-

tion within IPS.

3. Whether or not any of the added defendant school

corporations have acted to promote segregation either

within IPS or within their own boundaries.

The issues of law presented are as follows:

1. Whether or not the acts of de jure segregation here-

tofore found to have been practiced by IPS can be im-

puted to the State of Indiana such that appropriate State

officials or agencies may be directed to afford relief to

vindicate the Fourteenth Amendment rights of plaintiffs

and their class.

2. Whether or not appropriate State officials or agen-

cies have the power to direct reorganization of IPS with

other school corporations, or to direct the transfer or

exchange of IPS pupils to or with other school corpora-

tions in order to vindicate such rights.

3. Whether or not this Court may act in the manner

just described to vindicate such rights if responsible of-

ficials or agencies of the State fail to do so within a

reasonable time.

17a

ITI.

Viability of an Indianapolis Only Plan

As stated above, the Court in its original opinion ex-

pressed some doubts as to whether or not a stable de-

segregation plan could be established within the confines

of IPS, based upon the evidence adduced at that trial,

which was all to the effect that when the percentage of

Negro pupils in a given school approaches 40%, more

or less, the exodus of white pupils from such a school

becomes accelerated and irreversible, resulting in re-

segregation. However, additional evidence on this issue

was adduced at the recent trial, and the Court bases its

findings exclusively upon such latter evidence.

Having considered such evidence, the Court finds it to

be a fact that when the percentage of Negro pupils in a

given school approaches 25% to 30%, more or less, in

the area served by IPS, the white exodus from such a

school district becomes accelerated and continues, as dem-

onstrated by Figure 2. All witnesses agreed that once

a school becomes identifiably black, it never reverses to

white, in the absence of redistricting. Therefore, progres-

sions from white to black are irreversible once the critical

percentage has been reached in the absence of interven-

tion through redistricting. Below the critical percentage,

however, schools tend to remain stable, as demonstrated

on Figure 3. With further reference to Figure 3, it will

be noted that there is one elementary school within IPS

which has remained stable over the past five years with

a high degree of integration. This lone exception is

School 86, which the Court judicially knows to be lo-

cated in the Butler-Tarkington area of the city, men-

tioned in the testimony as an area in which the resi-

dents, black and white, have worked together for the

past several years in a community relations program de-

signed to maintain the stability of the neighborhood as

18a

an integrated community. The results achieved show

dramatically that such a program can be made to work,

but unfortunately the other statistics illustrate all too

well that the Butler-Tarkington situation is the excep-

tion and not the rule.

The Court has no reason to find or believe that a

crash IPS-wide community relations program, even if one

were in progress (and none is), would achieve a system-

wide stabilization in time to preserve the entire system

from becoming identified as racially black. The Court

further finds that, given the present percentage of Negro

pupils in the IPS system, which has risen to 41.1%

since the previous trial, and the further fact that black

enrollments in IPS will in the near future surpass white

enrollments therein, as graphically illustrated on Figure

4, the right of plaintiffs and their class to attend schools

which are not racially identifiable, as provided by the

equal protection clause of the Fourteenth Amendment,

cannot be accomplished within the present boundaries of

IPS in a way that will work for any significant period

of time.

In other words, it is apparent that as a sheer exercise

in mathematics, it would be possible for this Court to

order desegregation of IPS on a 58.9%-41.1% basis, or

some basis similar thereto, so that no school could, for

the time being, be racially identifiable as a black school.

As a matter of fact, IPS announced rather dramatically

during the recent trial that such a plan would be put

into effect for the coming school year, but rejected such

plan at its recent meeting of July 16, 1973, as the

Court knows judicially. As demonstrated, however, such

a plan, if put into effect, would have the effect of an im-

mediate acceleration of white students into suburban

white enclaves or private schools, so that IPS as a whole

would predictably have a black majority within a matter

19a

of two or three years. This is not the Court’s idea of a

plan which “promises realistically to work.”

On the other hand, the alternative to such a plan is

to limit desegregation to figures which are statistically

tolerable insofar as “white flight” is concerned, such as

to provide that schools which now contain few or no

Negro students accept additional numbers of the minority

race, not to exceed perhaps 20% to 30%. Such a plan

would, of course, have the effect of affording education

in a desegregated setting to those minority race students

attending schools in which they would make up the mi-

nority of 20% to 30%; but considering the total percent-

age of minority race students in the IPS, system, it is

equally obvious that such a plan would leave a large

number uf schools with a minority percentage in excess

of 50%, which would not only make them racially iden-

tifiable schools, but would once again accelerate white

flight from those particular schools.

On this key question as to whether a meaningful de-

segregation plan could be put into effect within the con-

fines of IPS, the Court heard expert opinions from nu-

merous witnesses called by each side. As usual, they

disagreed. However, in the Court’s opinion, a clear pre-

ponderance of the expert opinion was that no feasible

plan could be devised. Those who testified to the con-

trary tended to qualify their opinions, and in some in-

stances the facts presented by such witnesses simply

did not support their conclusions.

For example, Dr. Mercer, a witness called by the Gov-

ernment, testified as to numerous facts having to do

with desegregation efforts in the State of California, and

presented the City of Riverside as a city where desegrega-

tion was apparently working well. However, it developed

that the Riverside plan was put into effect voluntarily,

accompanied by much community relation effort sponsored

by the school and the local news media, and finally that

20a

the percentage of minority race students in the entire

system was less than 25%. None of these facts have

any relation to the situation in Indianapolis. On the other

hand, the witness’s own Figure 7, which is the last sheet

of Government Exhibit 14, discloses the sharp and dra-

matic drop in “other-white” students in Inglewood, Pasa-

dena, and San Francisco following public announcement

that such schools would be required to desegregate, later

followed by the filing of legal actions to accomplish such

end. (The term “other-white” in California refers to

those persons called “Anglos” in Denver and simply

“whites” or “Caucasians” in Indianapolis. The Cali-

fornia “other-white”’ is a white who does not have a

Spanish surname. )

The testimony of another defense expert, Dr. Hooker,

was completely demolished by cross-examination showing

that in his published articles he had expressed views

opposite to those given in this case, and Dr. Dodson

testified that a metropolitan plan would be superior to

one limited to IPS.

The solution, therefore, must be to look elsewhere, if

this can be done within the law.

IV.

Responsibility of the State of Indiana

In its previous opinion of August 18, 1971, the Court

devoted several pages of its opinion to tracing the his-

tory of segregation within Indiana beginning 1800,

demonstrating that the State, through its legislative, ex-

ecutive, and judicial branches had practiced all manner

of discrimination against Negroes, not only in the field

of education, but in housing and innumerable sectors of

their social and economic life, as well as in the area of

civil rights. 332 F.Supp. pp. 658-665. None of such re-

grettable history, of which the Court then took judicial

2la

notice, has been refuted by any added defendant, with

the exception of a quibble about the effect of certain

school laws passed in 1961 and thereafter. The Court

therefore incorporates such previous history into this

opinion by reference, save to the extent that its discus-

sion of Acts of the General Assembly of 1961 and there-

after will be reviewed further hereafter.

Before entering into a discussion as to the specific

acts or omissions of State officials having a bearing on

the problems of segregation and desegregation, it seems

appropriate at this point to set out in detail the role

of the State in public education in Indiana, touched

upon rather briefly in this Court’s previous opinion.

The original seaboard colonies were, of course, founded

in the 17th and 18th Centuries, when the concept of

public education was unheard of. As a result, such

schools which existed therein in the early days were

either church supported or were supported strictly by

private funds. The relics of that system linger today in

various states which evolved from the original colonies

so that, for example, the decision in Bradley v. School

Board of City of Richmond, Virgnia, 462 F.2d 1058 (4

Cir. 1972), (“Richmond”), based its decision reversing

an order of the District Court for a metropolitan de-

segregation plan in Richmond and surrounding counties

primarily on the basis that the operation of public schools

within the different counties of the Commonwealth of

Virginia is a matter of local option, and that, if the

option be exercised, the power to operate, maintain and

supervise the public schools in a given county is in the

exclusive jurisdiction of the local school board and not

the state.

However, following the successful conclusion of the

Revolutionary War, it was foreseen by the Congress that

an educated citizenry was vital to maintaining an en-

lightened self-government as provided for in the Con-

22a.

stitution, and hence the education of all citizens became

a concern of the Government. Thus it was that when

the Northwest Territory was formed out of lands for-

merly claimed by the Commonwealth of Virginia, the

Northwest Ordinance of 1787 provided:

“Religion, morality and knowledge, being necessary

to good government and the happiness of mankind,

schools and the means of education shall forever be

encouraged.” Art. III.

The State of Indiana along with the states of Michi-

gan, Ohio, Illinois, Wisconsin, ete., were, of course, later

formed out of the Northwest Territory, and such states

accordingly provided by their respective constitutions for

the establishment of systems of public education. The

original 1816 Constitution of Indiana, Sections 1 and 2,

Article 9, paraphrased the above quoted language from

the Northwest Ordinance and provided that it should be

the duty of the General Assembly to provide by law for

a general system of education, ascending in a regular

graduation from township schools to a state university

wherein tuition would be free, and equally open to all.

Article 8, Section 1, of the present Constitution, adopted

in 1851, carries forward the duty of the State in the

following language:

“Knowledge and learning, generally diffused through-

out a community, being essential to the preservation

of a free government; it shall be the duty of the

General Assembly to encourage, by all suitable means,

moral, intellectual, scientific, and agricultural im-

provement; and to provide, by law, for a general

and uniform system of Common Schools, wherein

tuition shall be without charge, and equally open to

all.”

Under the 1851 Indiana Constitution, the common

schools as a whole are made a state institution. Ratcliff

23a

v. Dick Johnson School Tp., 204 Ind. 525, 185 N.E. 143

(1933); Ehle v. State, 191 Ind. 502, 183 N.E. 748

(1922) ; City of Lafayette v. Jenners, 10 Ind. 74 (1857).

The State owns and maintains the common schools just

as it does its public institutions of every kind. State

v. Haworth, 122 Ind. 462, 23 N.E. 946 (1890). School

corporations within the system only hold title to such

schools as trustees and the State has the right to change

trustees by annexation at will. Board of School Com’rs

v. Center Tp., 143 Ind. 391, 42 N.E. 808 (1896). The

legislature may consolidate schools by resolution without

notice to the voters or without any referendum or elec-

tion. Fruit v. Metropolitan Sch. Dis. of Winchester, etc.,

241 Ind. 621, 172 N.E.2d 864 (1961).

It was the intention of the framers of the Constitution

to place the common schools under the direct control and

supervision of the State. Green Castle Township v. Black,

5 Ind. 557 (1854); State v. Eddington, 208 Ind. 160,

195 N.E. 92 (1935). The authority over the schools

and school affairs resides exclusively within the dominion

of the legislature and the school system is a centralized

and not a localized form of school government. Gruber

v. State, 196 Ind. 436, 148 N.E. 481 (1925); Jordan

v. City of Logansport, 178 Ind. 629, 99 N.E. 1060 (1912) ;

State v. Ogan, 159 Ind. 119, 63 N.E. 227 (1902); State

v. Haworth, supra; State v. Eddington, supra.

Under Article 8 of the Indiana Constitution, the power

of the General Assembly to regulate the school system

is practically unlimited. Kostanzer v. State, 205 Ind.

536, 187 N.E. 337 (1933). The employees of a school

corporation undertake their duties not as officers of local

units of self government but as officers of the public

school system, which is a State institution. State v. Ed-

dington, supra.

The General Assembly has the power to prescribe the

terms of the employment contracts to be executed by

24a

school corporations, Indiana ex rel. Anderson v. Brand,

303 U.S. 95, 58 S.Ct. 448, 82 L.Ed. 685 (1937), and the

power to provide a general system of licenses for those

desiring to teach. Stone v. Fritts, 169 Ind. 361, 82 N.E.

792 (1907).

While the State in acting directly to carry out its

educational functions under Article 8, Section 1, is not

forbidden to create and use local corporations for that

purpose, it assumes responsibility for the conduct of these

corporations. Such corporations were and still are in-

voluntary corporations established as part of the school

system of Indiana and are but agents of the State for

purposes of administering the State system of education.

Indiana ex rel. Anderson v. Brand, supra; Campbell v.

City of Indianapolis, 155 Ind. 186, 57 N.E. 920 (1900) ;

Freel v. School City of Crawfordsville, 142 Ind. 27, 41

N.E. 312 (1895). Such corporations may only exercise

the authority given them by the State, Ratcliff v. Dick

Johnson School Tp., supra; Ehle v. State, supra, and the

conduct and practices of these agent corporations must be

considered acts of the State. Hummer v. School City of

Hartford City, 124 Ind.App. 30, 112 N.E.2d 891 (1953),

overruled in part on other grounds, Flowers v. Bd. of

Com’rs of County of Vanderburgh, 240 Ind. 668, 168

N.E.2d 224 (1960).

Robinson v. Schenck, 102 Ind. 307, 1 N.E. 698 (1885),

held that it was constitutional for the legislature to

provide by general law for local school authorities to levy

school taxes. Some of the general language in that case

could suggest that local school corporations are to be

treated as local units of self-government, as in Virginia.

To clear up such an implication, the Supreme Court of

Indiana in State v. Haworth, supra, made it clear that

Robinson did not change the relationship of school cor-

porations as agents of the State. The majority opinion

specifically rejected the dissenting opinion’s argument

based on Robinson that the school corporations in the

25a

State are units of self-government in which local control

of the schools is left with the people within such cor-

poration. The majority held instead that the authority

and control of schools and school affairs is vested ex-.

clusively in the General Assembly and. that such affairs

are intrinsically matters of State concern and not of a

local jurisdiction. “In such matters, the State is a unit,

and the legislature the source of power.” To the same

effect, see Ft. Wayne Community Schools v. State, 240

Ind. 57, 159 N.E.2d 708 (1959).

To summarize in the words of the court in State v.

Mutchler, 232 Ind. 580, 115 N.E.2d 206 (1953) :

“The people of Indiana have translated into a funda-

mental constitutional postulate the belief that the

general diffusion of knowledge and learning through-

out a community is essential to the preservation of

free government, and in harmony with this constitu-

tional postulate the Constitution recognizes that the

business of education is a governmental function

and makes public education a function of state gov-

ernment as distinguished from local government....

It was evidently the intention of the framers of the

Constitution to place the common schools under the

direct control and supervision of the state, and

make it a quasi-department of the state government,

a centralized and not a localized, form of school gov-

ernment.” (Emphasis added.)

The Indiana statutes on education are testimony to

the constitutional and decisional history just discussed.

The Indiana State Board of Education and its predecessor

have been given great powers, and “It shall be the duty

of the board to coordinate the work of the various com-

missions so as to bring about an effective and an (sic)

unified school program and to make determinations in

matters of jurisdiction between such commissions in ac-

26a

cordance with the law, but all actions of the commissions

within their respective jurisdictions shall be final.” The

“commissions” are on general education, textbook adop-

tion, and teacher training and licensing. Indiana Code

1971, 20-1-1-1 & 20-1-1-2, Burns Ind.Ann.Stat. (herein-

after “Burns’”) § 28-101, 28-102.

Following said Section 20-1-1 of the Indiana Code of

1971, the first section having to do with schools, there

follow some 349 solid pages of statutes enacted by the

General Assembly regulating virtually every phase of

school operation, printed single space, on unusually wide

paper, in a type style reminiscent of that used in the

exclusions section of an insurance policy. The annotated

version of these laws occupies two complete volumes of

Burns, comprising some 1,154 standard pages (but with

annotations in small type), exclusive of indices and pocket

parts. Burns, Vol. 6, parts 3 and 4. The administrative

rules and regulations concerning education consume an

additional 126 pages. Burns Ind.Adm. R. & Reg., Title

28. For obvious reasons, the Court will attempt no sum-

mary of this vast compendium, except to say generally

that all phases of the operation of the public schools

are regulated, in one way or another, by the State.

Of particular importance here, however, should be noted

the statute, in effect from 1949 until 1972, which vested

in the commission on general education of The Indiana

State Board of Educaton the power and duty to regulate

new school sites and buildings or any modifications of or

additions to existing buildings, and established a division

of schoolhouse planning under a director to be appointed

by the state superintendent of public instruction with the

approval of the governor. IC 1971, 20-1-2-1 to 20-1-2-6,

Burns 28-301 to 28-306. Such law was repealed in 1972,

but only because it was at such time replaced by a similar

law. IC 1971, 20-1-1-6, as added 1972; Burns 28-109

(Pocket supp.).

27a

Questions identical to those presented in this action

have been considered by the Court of Appeals for the

Sixth Circuit in Bradley et al. v. Milliken et al., 484 F.

2d 215 (1973). In upholding the trial court’s determina-

tion that a metropolitan remedy would be appropriate to

accomplish desegregation of the public schools of De-

troit, it based its holding upon discriminatory practices

on the part of both the Detroit school board and the

State of Michigan found to be “significant, pervasive and

causally related” to the segregation in the Detroit school

system. 3

The discriminatory practices of the Detroit school

board were, in general, acts of commission identical to

those found to have occurred in Indianapolis, such as

gerrymandering school attendance zones, making bound-

ary changes which promoted segregation, providing op-

tional attendance zones in “changing” areas, assigning

teachers and staff so as to mirror the racial complexion

of a school’s student body, assigning students to ele-

mentary and high schools according to the racial pat-

terns of the feeder schools, selecting sites for new schools

and building additions to existing schools in such a fash-

ion as to separate the races, etc.

As between the four discriminatory practices charged

to the State, the Sixth Circuit held:

“The clearest example of direct State participation

in encouraging the segregated condition of Detroit

publie schools, however, is that of school construc-

tion in Detroit and the surrounding suburban areas.

Until 1962 the State Board of Education had direct

statutory control over site planning for new school

construction. During that time, as was pointed out

above, the State approved school construction which

fostered segregation throughout the Detroit Metro-

politan area. ... Since 1962 the State Board has

28a

continued to be involved in approval of school con-

struction plans.”

In the case at hand the evidence shows that Arlington

High School was opened in 1961 with a Negro enrollment

of 0.23%, Northwest High School was opened in 1963

with a Negro enrollment of 0.0%, and John Marshall

High School was opened in 1967 with a Negro enrollment

of 0.3%. Inspection of maps in evidence discloses that

Arlington is less than a mile from the extreme northeast

corner of IPS, Marshall is squarely on the extreme east

line of IPS, and Nortwest slightly less than a mile from

the extreme west line of IPS. This Court found in its

previous opinion, and finds once again, that the place-

ment of such schools constituted acts of de jure segrega-

tion on the part of IPS. The former holding has already

been affirmed by the Seventh Circuit, 474 F.2d at pp.

87, 88. See Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554

(1971).

Here, as in Michigan, the sites for the three high

schools mentioned were necessarily approved by the ap-

propriate agencies of defendants The Indiana State

Board of Education and the Superintendent of Public

Instruction. On the authority of Bradley, these were acts

of de jure segregation on the part of officials of the State.

Similar examples could be pointed out with regard to

site selection for construction and enlargement of ele-

mentary schools, but the foregoing examples are so ob-

vious that there is no need to labor the point.

Further, at all times since 1949, the Indiana statute

forbidding racial segregation in educational opportunity

has been in effect, IC 1971, 20-8-6-1 et seq., Burns 28-6106

et seq., and the mandate of the Supreme Court of the

United States in Brown v. Board of Education of To-

peka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954),

29a

has been the law since 1954. According to the evidence

in this case, the officials of the State charged with over-

sight of the common schools have done almost literally

nothing, and certainly next to nothing, to furnish leader-

ship, guidance, and direction in this critical area. Even

at this late date, the division of equal educational op-

portunity of the Indiana Department of Public Instruc-

tion, headed by the State Superintendent, consists of but

four staff members and a secretary, to cover the entire

State of Indiana, dnd has only been in existence for the

past two years pursuant to a Federal grant. The Court

finds that the failure of the State Superintendent and

the Board of Education to act affirmatively in support of

the law was an omission tending to inhibit desegregation.

V.

Acts of Added Defendant School Corporations

There was no evidence that any of the added defendant

school corporations have committed acts of de jure segre-

gation directed against Negro students living within their

respective borders. In fact, the evidence shows that,

with a few exceptions, none of the added defendants have

had the opportunity to commit such overt acts because

the Negro population residing within the borders of such

defendants ranges from slight to none, as illustrated on

Figure 5. However, with respect to the added defendants

situate within Marion County, the evidence is that when

the Marion County School Reorganization Committee, ap-

pointed pursuant to the Indiana School Reorganization

Act of 1959, IC 1971, 20-4-1-2, Burns 28-3501 et seq.,

made its initial and unanimous recommendation that all

of the school systems in Marion County be merged into

one metropolitan system, the added Marion County de-

fendants were unanimous in their opposition to the plan

(which was, however, favored by IPS). Subsequently,

80a

and for the stated reason that in its opinion the metro-

politan plan could not be adopted in view of the suburban

opposition, the Reorganization Committee completely re-

versed itself and proposed a plan which, with minor

exceptions having to do with areas within Center Town-

ship, froze all existing school corporations in Marion

County according to their then existing 1961 boundaries.

Thus school reorganization in Marion County, rather

than reorganizing anything except the name and method

of school government as to certain added defendants, did

nothing at all. By way of contrast, the evidence is that

on a state-wide basis reorganizations pursuant to the Act

of 1959 ultimately resulted in reducing the number of

school corporations by approximately 50%, and created

school corporations merging what had formerly been sepa-

rate corporations in cities, towns, and their adjoining

unincorporated areas, as well as merging what had for-

merly been separate township systems into consolidated

systems. Some of the latter mergers extended across

county lines, as reflected by defendant Wayne’s Exhibit

D. As to IPS, this farcical “reorganization” had the ef-

fect of making it technically a reorganized school cor-

poration, and thus hampered its ability to be further

reorganized without complying with all of the cumber-

some procedures of the 1959 Act and other crippling

legislation.

That the added defendants had a legal right to resist

the recommendation of the School Reorganization Com-

mittee under existing law cannot be denied. At the same

time, it is apparent that confining IPS to its existing

territory had the effect, which continues, of making it

first difficult and now impossible to comply with the law

requiring meaningful desegregation.

At this point the Court deems it appropriate to con-

sider briefly the question as to why Figure 5 reflects such

8la

a remarkable absence of Negro citizens from the terri-

tories of the added defendants with the exception of

Washington and Pike (those Negro citizens residing in

Wayne are concentrated in that part of Wayne which

is within IPS, according to school enrollment figures).

Such absence is particularly glaring under the evidence,

which reflects virtually no Negroes in Speedway, which

has within its borders Detroit Diesel Allison Division of

General Motors Corporation, the largest single employer

of labor in Marion County; virtually none in Beech

Grove, which houses the shops of the Penn Central Trans-

portation Company; virtually none in Warren outside

IPS, although Western Electric, situate in Warren Town-

ship, employs thousands of persons who busily make all

the telephones for American Telephone and Telegraph.

Equally remarkable is the absence of Negroes from Law-

rence, which has the vast Army Finance Center located

some two miles east of its high school. Either it must

be concluded that Negroes, unlike other citizens, simply

do not like to live near their places of employment (and

all of the employers mentioned are equal opportunity

employers), or there must be some other reason.

In Richmond the court said, among other things, “We

think that the root causes of the concentration of blacks

in the inner cities of America are simply not known... .”

This Court finds that statement incredible. Although it

is undoubtedly true that many factors enter into demo-

graphic patterns, there can be little doubt that the prin-

cipal factor which has caused members of the Negro race

to be confined to living in certain limited areas (com-

monly called ghettos) in the urban centers in the north,

including Indianapolis, has been racial discrimination in

housing which has prevented them from living any place

else.

In the trial just concluded a witness called by the

added defendants conceded that Negroes have been se-

32a

verely limited in their search for housing in the In-

dianapolis area to properties advertised in local news-

papers as “for colored,” and experts called by the Gov-

ernment testified that discrimination has been a root

cause of the black central city phenomenon.

The Court sees no point in laboring the obvious. If

racial discrimination did not exist in the United States,

Indiana, and the Indianapolis metropolitan area, it

would not be necessary to have laws against it. Yet the

past ten years have brought forth a spate of such laws,

local and national, preceded by reports of investigating

commissions without end, all pointing up what. every

citizen knows—that discrimination is yet with us in a

nation which daily pledges that it is “. . . one nation,

under God, indivisible, with liberty and justice for all.”

Such racial discrimination, which has been tolerated

by the State at the least, and in some instances has been

actively encouraged by the State, as set out in this

Court’s previous opinion, has had, as its end result, the

creation of an artificial unrepresentative community, as

pictured by the exhibits in this case. At the very least

it may be said that Negroes have consistently been de-

prived of the privilege of living within the territory

of the added defendants by reason of the customs and

usages of the communities embraced within such bound-

aries, and of the State.

The foregoing should not be taken to mean that this

action is one having to do with discrimination in hous-

ing, and this Court does not consider that a school de-

segregation action is one in which it is appropriate to

attempt to remedy such discrimination, past or present.

However, when it may be demonstrated that, as here,

the discriminatory customs and usages mentioned have

had a demonstrably causal relationship to segregation in

the schools, such factor should not be casually swept

under the table as in Richmond,

83a

VI.

Conclusions of Law

The Court concludes, as a matter of law, as follows:

1. The acts of de jure segregation heretofore found to

have been practiced by IPS can be, and are imputed to

the State of Indiana.

2. The Superintendent of Public Instruction, The In-

diana State Board of Education, and other responsible

agents and agencies of the State of Indiana, and the State

itself, have each practiced de jure segregation, both by

commission and omission.

3. The General Assembly of the State of Indiana has

the power, and it is its duty, to devise a metropolitan

plan of common school education in the Indianapolis

metropolitan area, which may be to direct the reorgani-

zation of IPS with other school corporations, in whole or

in part, or to direct the transfer or exchange of IPS

pupils to or with other school corporations, in such a

manner as to vindicate the Fourteenth Amendment rights

of plaintiffs and all Negro children presently within the

jurisdiction of IPS to attend desegregated, non-racially

identifiable schools.

4. If the General Assembly fails to act in the manner

described within a reasonable time, this Court has the

power and the duty to devise its own plan, and to order

the defendant and the added defendant school corpora-

tions, State Superintendent of Public Instruction, and The

Indiana State Board of Education to implement the same.

In short, paraphrasing the holding of the Sixth Circuit

in Bradley et al. v. Milliken et al., supra, this Court holds

that the record establishes that the State has committed

de jure acts of segregation and that the State controls

the instrumentalities whose action is necessary to remedy

the harmful effects of the State acts. There can be little

84a

doubt that a federal court has both the power and the

duty to effect a feasible desegregation plan. Indeed, such

is the essence of Brown II. Brown v. Board of Education,

349 U.S. 294, 300-301, 75 S.Ct. 753, 99 L.Ed. 1083

(1955). In the instant case the only feasible desegrega-

tion plan involves the crossing of the boundary lines be-

tween IPS and adjacent or nearby school districts for

the limited purpose of providing an effective desegrega-

tion plan. The power to disregard such artificial barriers

is all the more clear where, as here, the State has been

guilty of discrimination which had the effect of creating

and maintaining racial segregation along school district

lines. United States v. Scotland Neck Board of Educa-

tion, 407 U.S. 484, 489, 92 S.Ct. 2214, 33 L.Ed.2d 75

(1972) ; Wright v. City of Emporia, 407 U.S. 451, 463,

92 S.Ct. 2196, 33 L.Ed.2d 51 (1972); United States v.

State of Texas, 447 F.2d 441, 443-444 (5 Cir. 1971);

Haney v. County Board of Education of Sevier County,

429 F.2d 364, 368 (8 Cir. 1970). See also Davis v. Board

of School Commissioners, 402 U.S. 38, 36-38, 91 S.Ct.

1289, 28 L.Ed.2d 577 (1971).

There exists, however, an even more compelling basis

for this Court’s crossing artificial boundary lines to cure

the State’s constitutional violations. The instant case

calls up haunting memories of the now long overruled

and discredited “separate but equal doctrine” of Plessy

v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256

(1896). If we hold that school district boundaries are

absolute barriers to an IPS school desegregation plan, we

would be opening a way to nulify Brown v. Board of

Education which overruled Plessy, supra.

VII.

The Area of a Viable Metropolitan Plan

In considering a metropolitan plan, it is apparent that,

to name a few factors, the area should be reasonably

35a

compact in size in relation to its center, should not be

separated by massive natural obstacles, and otherwise

should be adaptable to the reasonably speedy transporta-

tion of school children. Also, it would seem only reason-

able to examine whether or not the area to be considered

has significant common interests with the area hub. The

Court now examines the situation with regard to the area

depicted on Figure 1.

In the first place, the Court knows judicially that the

entire area consists of virtually flat land, gently sloping

from the northeast to the southwest with a fall of ap-

proximately 150 to 200 feet in approximately 35 miles.

The area contains no natural barriers of any conse-

quence; two fairly sizeable reservoirs, Geist and Eagle

Creek, are located northeast and northwest, respectively,

and pose no obstacle to movement of people to or from

the center of the area, while White River is little larger

than a robust creek, and is crossed by numerous bridges.

With a very few exceptions, such as added defendants

in their roles as employers, all industrial plants and other

major places of employment within the area are concen-

trated either within the boundaries of IPS or are within

a few city blocks of such boundaries in Wayne and War-

ren Townships and the towns of Speedway and Beech

Grove. Indeed, as the evidence discloses, many of the

added defendant school corporations are the largest single

employers of labor within their respective borders!

The employment situation is represented on Figure 6,

which shows graphically that, with the exception of the

City of Greenfield (not shown on Figure 1), more than

half (in most cases more than 60%) of the residents of

each unit shown on Figure 1 are employed in Marion

County—as a practical matter in IPS, or within a few

city blocks thereof. If the rather substantial number of

workers who did not list their place of employment are

distributed in proportion to those who did, it is apparent

that the true percentage of Marion County workers in

the area is even higher than as indicated.

86a

The employment picture just described results in huge

flows of traffic from the “bedroom” townships primarily

to Center, Warren and Wayne Townships of Marion

County each weekday morning, and back again each

evening. In order to accommodate this flow of traffic, the

Indianapolis area, with a huge assist from the Federal

government, is blessed with an extraordinarily efficient

highway network. The central area is completely looped

by Interstate Highway I-465, a six-lane, divided, limited

access highway, typical of such highways in the Inter-

state System. The loop varies in its distance from Monu-

ment Circle, the hub of downtown Indianapolis, from as

little as 4.50 miles, due south, to as much as 11.50 miles

to the nothwest, averaging perhaps six or seven miles in

distance from such central reference point. Additionally

there are no less than seven additional legs of Interstate

highways branching off of I-465, and in some instances,

coming inside the I-465 loop. Specifically, I-74 runs

northwest and southeast from I-465, I-69 runs northeast

from I-465, I-70 runs southwest and due east from I-465

(with construction in progress to link up both legs

through the center of this city), and I-65 runs north-

west and southeast from I-465 (I-65 will also link both

of its legs through the center of the city, and the north

leg is already open from I-465 to 11th and Meridian

Streets, in downtown Indianapolis).

In addition, there are many other multilane highways

leading into, out of, and through the central area, many

of which are divided, such as S. R. 67 to the southwest

and northeast, U.S. 40 due east and west, S. R. 431 and

U.S. 31, each running due north and south to southeast,

S. R. 37 south and northeast, and S. R. 100, running

along the north and east sides, just inside I-465. Such

routes, and other main highways, are illustrated on Fig-

ure 7.

Virtually all points of interest for cultural, sports, and

higher educational activities are located within IPS. For

37a

example, as the Court knows judicially, Butler University,

Marian College, Indiana Central College, the Indianapolis

campus of Indiana and Purdue Universities are so located,

as are the Indianapolis Zoo, the Children’s Museum, the

Indiana State Fairgrounds, the Indiana Capitol and office

buildings, all major federal offices, Clowes Hall (an out-

standing theater for the performing arts), the Indian-

apolis Sports Arena, the Indianapolis Convention Center,

etc. The Indianapolis Art Museum directly adjoins an

IPS boundary, as does the Indianapolis Motor Speedway

(located in Speedway).

Just as the working parents of the suburbs drive back

and forth to work each day, so are most suburban chil-

dren bused to and from school. As shown on Figure 8,

out of 114,696 students in suburban schools, 90,266 or

78.7% are bused. The State reimburses each school

corporation a portion of the cost of busing each child.

(Also, it should be noted, the State reimburses each

added defendant, except Speedway, a substantial portion

of its costs or operation, according to a complicated

formula.) These bus routes are extremely time consum-

ing, as anyone knows who has the misfortune to follow

a bus down the highway, since the custom in the suburban

areas is to pick up the children on virtually an individual

basis. However, assuming that children walk to a central

school or other convenient point, such as most IPS pupils

do, and are then transported non-stop to their designated

school of attendance via the major traffic arteries (during

which period of transportation they would be going op-

posite to the flow of commuter traffic, and hence not im-

peded by it) the Court is of the opinion that—given

logical and most convenient assignments—virtually all

students could be delivered in thirty minutes. Thirty or

even forty-five minutes is not an unreasonable time, and

aitogether comparable to that required for such trans-

portation elsewhere in Indiana.

38a

As shown in Figure 4, previously referred to, the

white pupil enrollment within IPS is sharply falling,

while that of Negro pupils is rising. On the other hand,

the population of each area in which added defendants

operate their schools, and the areas of non-defendant

school districts adjoining Marion County are rapidly

rising in population, virtually all white. These changes

are illustrated in Figures 9, 10, and 11.

It was argued by added defendants that the Negro

birth rate and in-migration had declined to the point

where further increase in the black school population

would not occur. This not only begs the question of white

migration to the suburbs, but cannot be demonstrated

statistically, as shown by Figure 12, reflecting that esti-

mated black enrollments in grade 1 in 1973 virtually

equal black births in Indianapolis in 1967—an obvious

statistical improbability without continued in-migration.

With regard to the defendant Greenfield, Union Town-

ship of Eagle-Union and certain omitted townships of

the non-defendants Hamilton Southeastern, Southern

Hancock, and Northwestern, the Court is of the opinion

that the distances involved are impractical, and therefore

makes no recommendation that they be included in a

metropolitan plan. The Court does recommend that all

other added defendants be included in the metropolitan

plan, as well as Eagle-Union to the extent of Eagle Town-

ship.

The Court observes that, on the basis of the applicable

figures, the General Assembly may also wish to add the

non-defendants Center Grove, Clark-Pleasant, Southern

Hancock, Hamilton Southeastern to the extent of Dela-

ware and Fall Creek Townships, and Northwestern to

the extent of Moral Township to the plan. Its ability to

do so is undoubted. State v. Mutschler, supra. However,

the Court can make no finding or recommendation with

respect to these corporations until such time as they have

39a

had their day in court. Intervening plaintiffs are directed

to interplead such corporations as additional added de-

fendants forthwith.

VIII.

Constitutionality of Certain Indiana Statutes

Questions posed by the Court in its previous opinion

inquired as to the constitutionality of certain Indiana

statutes, specifically Chapter 186 of the Acts of 1961, IC

1971, 20-3-14-1, 20-3-14-10, Burns 28-2338, 28-2346, 28-

2347 (1968 Cum.Supp.) ; Chapter 52 of the Acts of 1969,

IC 1971, 20-8-14-9, Burns 28-2346a (1970 Cum.Supp.),

and Chapter 173 of the Acts of 1969, IC 1971, 18-4-1-1

to 18-4-5-4, Burns 48-9101 et seq.

In the opinion of the Court such statutes, along with

the application or the misapplication of the School Reor-

ganization Act of 1959, certainly placed IPS in a strait

jacket. However, in view of the Court’s other findings

and conclusions, it is unnecessary to consider the question

of unconstitutionality.

IX.

Interim Relief

The Court is of the opinion that it would be without

jurisdiction to order the exchange of pupils between IPS

and added defendants at this time. It is Negro children

of IPS and not suburban children who are being deprived

of a constitutional right, and so long as the various school

corporations remain separate the Court believes that it

would have no basis to direct that a suburban child be

transported out of its own school corporation. How-

ever, the Court knows of no reason why added defend-

ants should not immediately accept a reasonable number

of Negro children from IPS on a transfer basis, effective

as*of the beginning of the 1973-74 school year, and it is

so ordered. In this connection, the evidence shows that

40a

virtually all added defendants routinely exchange or

transfer pupils for various educational purposes. The

Court can think of no more important form of special

education for a Negro child than going to school in an

integrated environment.

As shown by the evidence, Negro pupils constituted

39.5% of the 1972-73 enrollment of IPS, but constituted

but 24.3% of the total enrollment in Marion County and

19.5% of the total enrollment in the Figure 1 area for

the same period. Although a perfect racial balance in

each school is not required by law and will not be ordered,

the General Assembly will presumably give careful con-

sideration to these relative percentages. Also, the Gen-

eral Assembly should keep in mind that “tokenism” will

not, in the Court’s opinion, meet constitutional require-

ments.

With respect to IPS itself, it is not true that children

of both races may not be transported or otherwise ex-

changed. As repeatedly pointed out by this and all other

Federal courts in the land, following, as we must, the

pronouncements of the Supreme Court of the United

States, there is nothing sacred about the attendance zones

within a school corporation, no constitutional right in a

student to atend a particular school (except that a child

of a minority race has a right to attend a desegregated

school), and so IPS must immediately take steps to reduce

the amount of segregation in its system. However, final

relief cannot be had until the General Assembly acts, or

this Court is compelled to devise its own plan because

of default on the part of the General Assembly.

The Court has given consideration to the average daily

attendance in the various schools of added defendants,

as shown by the evidence, and is pleased to note that such

averages are all well below that permited by State author-

ities. If each school accepted transfer of 5% of its pr’es-

ent enrollment, this would amount to an average of little

4la

more than one child per classroom, which is certainly

a reasonable figure and one well below what the Court

believes a proper metropolitan plan would accomplish.

However, exceptions should be noted in two instances—

that of Pike and Washington.

Washington already has a Negro percentage of 11.29%

and Pike a percentage of 8.17%. Washington has an

exemplary record of fair treatment of its minority stu-

dents, and has also aggressively added minority race

members to its faculty and staff. Primarily, however,

because of their present minority enrollments, transfers

to these added defendants should be limited.

It is therefore considered and ordered that, as interim

measures, the following be accomplished prior to the

beginning of the 1973-74 school year:

1. IPS is directed to transfer to each of the added

defendants, except Washington and Pike, a number of

Negro students equal to 5% of the total 1972-73 enroll-

ment of each transferee school, respectively, to transfer

to Washington 1% of its 1972-73 white enrollment, and

to Pike 2% of its white enrollment for the same school

year. Provided, however, that the number of students

who attended school in Union Township of Boone County

for such school year shall be deducted from the Eagle-

Union total before applying said percentage.

2. IPS shall not be required to transfer kindergarten

students, nor students commencing their twelfth year.

The numbers of students in such grades enrolled in

added defendants’ schools for the year 1972-73 shall,

however, be counted in arriving at the total to which

the applicable percentage figure shall be applied.

3. Each of the added defendants is directed to ac-

cept such transferee students and enroll them accord-

ingly.

424

4, The cost of transportation and tuition of such stu-

dents shall be the obligation of IPS: provided, that IPS

shall be entitled to a credit for any excess State reim-

bursement paid to a transferee corporation if any, as a

result of the presence of transferred pupils.

5. If any teachers presently employed by IPS are

rendered surplus as a result of this order, and addi-

tional teachers are needed by any added defendant as a

result hereof, first consideration shall be given by such

added defendant to employing a qualified IPS teacher.

6. The added defendants and IPS, through their re-

spective boards, superintendents, or other designated

agents are ordered to meet together forthwith, and to

continue to meet until the various logistical problems

made necessary by this order are resolved. Unresolved

issues, if any, may be referred to the Court for ruling.

7. IPS is directed to rearrange the enroilment pat-

terns in its elementary schools, effective at the beginning

of the 1973-74 school year, such that each school will

have a minimum Negro enrollment of in the area of

15%. The pairing or clustering of schools, and realign-

ment of school assignment zones will be employed. Pair-

ing or clustering should be of schools in close proximity,

if possible. Such action will result merely in an expan-

sion of the neighborhood or community school concept,

and reduce the necessity of busing. if after utilizing

such procedures, certain schools do not meet the required

numbers, pairing or clustering of schools in non-con-

tiguous zones will be resorted to. Swann, 402 U.S. at

28, 91 S.Ct. 1267.

8. If transportation of pupils is required to accom-

plish the result just ordered, IPS and defendant officials

of IPS are instructed that transportation of students of

the two races shall be generally proportionate. However,

nothing herein should be construed as preventing IPS

43a

from closing obsolete, heavily black schools if no longer

needed for student housing, and in such event it will

necessarily follow, in some cases, that a disproportionate

number of black students will require transportation.

9. IPS is further directed to rearrange the feeder

patterns of its high schools, so as to secure enrollment

of Negro students in each school more nearly approach-

ing their numbers in the system. Specifically, the num-

ber of such students in Thomas C. Howe High School

should be increased to the area of 25%, and that at

Shortridge reduced to not more than the area of 60%.

In making transfers of high school pupils to added de-

fendants, the Board should also keep in mind that Negro

percentages at Arlington and Broad Ripple are already

somewhat past the 40% level, and should be reduced, if

possible.

10. All defendants who have not done so are directed

to institute appropriate in-service training courses for

their respective faculties and staff, and otherwise to

orient their thinking and those of their pupils toward

alleviating the problems of segregation.

In this last connection, the Court was pleased to learn

from the evidence of the recognition given to Negro

students by their fellow white students in the few subur-

ban schools which they attended, and of the honors, both

scholastic and otherwise, which such Negro students have

earned in such schools. These facts, put in evidence by

added defendants, indicate to the Court that children are

basically inclined towards judging each other on the

merits and that, if permitted to follow their own decent

instincts, will accept each other on the basis of equality,

without racial hatred. There just may be a message in

this evidence for the adult world.

11. John O. Moss and John Preston Ward, attorneys

for intervening plaintiffs and their class, are entitled to

44a

recover thei# reasonable attorneys fees and expenses, and

intervening plaintiffs are entitled to recover their costs.

Such attorneys are directed to submit their respective

petitions for fees and allowances. Apportionment of the

cost of same is reserved.

12. The Court retains continuing jurisdiction herein.

All of the above is considered ordered, and adjudged

this 20th day of July, 1973.

SUPPLEMENTAL MEMORANDUM OF DECISION

I. Introduction

Heretofore, on August 18, 1971, the Court filed herein

its Memorandum of Decision, incorporating its findings

of fact and conclusions of law, and making certain

interim orders, with respect to the issues presented by

the complaint of the original plaintiff, United States of

America, and the answer of the original defendants,

The Board of School Commissioners of the City of Indian-

apolis, the individual members of such Board, and the

Board’s appointed Superintendent of schools. Such de-

cision, which will be referred to hereafter as “IJndian-

apolis I,” is reported in D.C., 332 F.Supp. 655, aff'd,

474 F.2d 81 (7 Cir. 1973), cert den., 413 U.S. 920, 93

S.Ct. 3066, 37 L.Ed.2d 1041 (1993).

Thereafter, on July 20, 1973, the Court filed herein

a second Memorandum of Decision, incorporating its

findings of fact and conclusions of law, and making

certain interim orders, with respect to certain issues

presented by the complaint of the original and added

plaintiffs, Donny Brurell Buckley, et al. and the answers

of the original and added defendants. Such decision will

be referred to hereafter as “Indianapolis II,” is reported

ante, p. 1191, 37 Ind.Dec. 524, and is now on appeal to

the Court of Appeals for the Seventh Circuit, Nos. 73-

1968 to 73-1984, incl.

45a

The key decision made in /ndianapolis I was that the

Indianapolis public school system (hereafter “IPS’”) was

being operated by the original defendants, and had been

operated by their predecessors in office, as a system

practicing de jure segregation of students of the Negro

race. It wz. therefore held that the Negro students were

being denied the equal protection of the laws, as guar-

anteed by the Fourteenth Amendment. Brown v. Board

of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873

(1954). Certain interim measures tending to prevent

further segregation were ordered, pending consideration

of the questions to be presented and later decided in

Indianapolis IT, it being understood that the law required

the defendants to take affirmative action to desegregate

IPS. Green v. County School Board, 391 U.S. 430, 88

S.Ct. 1689, 20 L.Ed.2d 716 (1968).

The key decisions made in Indianapolis II were that

(1) as a practical matter, desegregation promising a

reasonable degree of permanence could not be accom-

plished within the present boundaries of IPS, and (2)

added defendant officials of the State of Indiana, their

predecessors in office, the added defendant The Indiana

State Board of Education, and the State itself have, by

various acts and omissions, promoted segregation and

inhibited desegregation within IPS, so that the State, as

the agency ultimately charged under Indiana law with

the operation of the public schools, has an affirmative

duty to desegregate IPS.

The court also held in Indianapolis II that IPS could

be effectively desegregated either by combining its terri-

tory with that of all or part of the territory served by

certain added defendant school corporations, into a metro-

politan system or systems, and then reassigning pupils

within the expanded system or systems thus created, or

by transferring Negro students from IPS to added de-

fendant school corporations, either on a one-way or an

46a

exchange basis. It further held that the State, through its

General Assembly, should be first afforded the oppor-

tunity to select its own plan, but that if it failed to do

so within a reasonable time, the Court would have the

power and the duty to promulgate its own plan, and place

it in effect. Bradley et al. v. Milliken et al, 484 F.2d

215 (6 Cir. 1973). See Baker v. Carr, 369 U.S. 186,

82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Reynolds v. Sims,

377 U.S. 533, 84 S.Ct. 1862, 12 L.Ed.2d 506 (1964).

By way of affirmative relief pending action by the

General Assembly, the Court ordered IPS to effect pupil

reassignments for the 1973-74 school year sufficient to

bring the number of Negro pupils in each of its ele-

mentary schools to approximately 15%, which has been

accomplished. The Court also directed IPS to transfer

to certain added defendant school corporations, and for

such corporations to receive and enroll, a number of

Negro students equal to 5% of the 1972-73 enrollment

of each transferee school, with certain exceptions. This

order was, on August 8, 1973, stayed by the Court until

the 1973-74 school year by an order made in open court

but not previously reduced to writing.

At this time, certain matters have been presented to

the Court, both formally and informally, which require

further rulings in the premises. Such rulings are now

made, as hereafter set out, as supplementary to or, in *

some instances, in lieu of rulings heretofore entered in

Indianapolis II, as heretofore modified.

II. The Question of a “Reasonable Time” for

State Action

As stated, it was the Court’s conclusion that the State

should be afforded the opportunity, for a reasonable

period of time, to discharge its affirmative duty to de-

segregate IPS. The question has arisen as to how long

a time is reasonable.

47a

As the Court knew judicially at the time it entered

its decision in Indianapolis II, the General Assembly was

scheduled to organize in November, 1973, for a session

to begin in early January, 1974. It has so organized,

and numerous bills have already been introd’ »ed—none,

to the Court’s knowledge, having to do with the subject

at hand. As the Court also knows judicially, various

legislative leaders have publicly announced that the com-

ing session is expected to be short, and targeted for con-

clusion within a matter of a month or so.

Under the circumstances, considering the urgency of

the problem presented, the fact that members of the

General Assembly have had since July 20, 1973 to con-

sider the problem, and the anticipated length of the com-

ing legislative session, the Court considers a reasonable

time within which the General Assembly should act to

be the end of its January, 1974 session or February 15,

1974, whichever date is sooner. The Court also considers

that any legislation adopted by the General Assembly on

the subject of the desegregation of IPS should be effec-

tive for the 1974-75 school year.

III. The Duty of the General Assembly

In its opinion in Indianapolis II, the Court pointed

out in section IV thereof that the ultimate responsibility

for the operation of all public schools in Indiana lies in

the General Assembly, and that it has the undoubted

power to desegregate IPS by appropriate legislation,

citing the Indiana Constitution and some twenty cases

decided by the Indiana Supreme and Appellate Courts.

It also held that it was the General Assembly’s duty to

do so, based upon its findings from the evidence that

it is not possible for the IPS School Commissioners to

bring about a lasting desegregation within IPS bound-

aries.

48a

In reviewing that opinion, it now occurs to the Court

that it perhaps placed undue stress on the General As-

sembly’s power, and not enough on its duty; this failure

of direction on the part of the Court may account for

the General Assembly’s seeming lack of attention to the

problem to date, as the Court has no reason to doubt

that the able members of that body will do their sworn

duty to support the Constitution, once that duty is more

clearly defined. By “sworn duty,” the Court of course

refers to the oath taken by each member of the General

Assembly pursuant to Article 6, Clause 3 of the Consti-

tution of the United States, which reads, in applicable

part, as follows:

“. . (T)he Members of the several State Legisla-

tures, and all executive and judicial Officers, both

of the United States and of the several States, shall

be bound by Oath or Affirmation, to support this

Constitution; ...”

As to what that duty entails, in this instance, may be

best ascertained by the guidelines laid down by the

Supreme Court of the United States, whose decisions

and interpretations of the Constitution are final and

binding on all citizens, including elected and appointed

public officials, unless thereafter changed by that Court

or by Constitutional amendment. Marbury v. Madison

(U.S.) 1 Cranch 187, 2 L.Ed. 60 (1803). It is such

guidelines which this Court has endeavored to follow to

date in this rather difficult case—not because of any

personal views of the Court, but for the simple reason

that they constitute the law of the land, in every State

and Territory, and the Court, pursuant to its own oath,

may do no less. These guidelines, expressed in direct quo-

tation from significant opinions of the Supreme Court,

are as follows:

“Does segregation of children in public schools solely

on the basis of race, even though the physical fa-

49a

cilities and other ‘tangible’ factors may be equal,

deprive the children of the minority group of equal

educational opportunities? We believe that it

does. ...

“We conclude that in the field of public education

the doctrine of ‘separate but equal’ has no place .. .

Plaintiffs . . . are, by reason of the segregation

complained of, deprived of the equal protection of

the laws guaranteed by the Fourteenth Amend-

ment. ...” Brown v. Board of Education of Topeka,

347 US. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954)

(Brown I)

“

.

. (T)he courts may consider problems related

to administration, arising from the physical condi-

tion of the school plant, the school transportation

system, personnel, revision of school districts and

attendance areas into compact units to achieve a

system of determining admission to the public schools

on a nonracial basis, and revision of local laws and

regulations which may be necessary in solving the

foregoing problems. .. .” Brown v. Board of Edu-

cation of Topeka, 349 U.S. 294, 75 S.Ct. 7538, 99

L.Ed. 1088 (1955) (Brown IT)

. (T)he members of the School Board and the

Superintendent of Schools are local officials; from the

point of view of the Fourteenth Amendment, they

stand in this litigation as the agents of the State...

“Article 6 of the Constitution makes the Constitu-

tion the ‘supreme, Law of the Land.’... (T)he fed-

eral judiciary is supreme in the exposition of the

law of the Constitution. . .. It follows that the

interpretation of the Fourteenth Amendment en-

unciated by this Court in the Brown Case is the

supreme law of the land, and Art 6 of the Consti-

50a

tution makes it of binding effect on the States “ ‘any

Thing in the Constitution or Laws of any State to

the Contrary notwithstanding.’ Every state legisla-

tor and executive and judicial officer is solemnly

committed by oath taken pursuant to Art. 6, cl. 3,

‘to support this Constitution.’ ... No state legisla-

tor or executive or judicial officer can war against

the Constitution without violating his undertaking

to support it... .” Cooper v. Aaron, 358 U.S. 1, 78

S.Ct. 1401, 3 L.Ed.2d 5, 19 (1958)

“Delays in desegregating school systems are no

longer tolerable.” Bradley v. School Board ef Rich-

mond, 382 U.S. 108, 86 S.Ct. 224, 15 L.Ed.2d 187

(1965)

“The burden on a school board today is to come for-

ward with a plan that promises realistically to work,

and promises realistically to work now.

” a © * *

“The obligation of the district courts ... is to assess

the effectiveness of a proposed plan in achieving

desegregation. ... The matter must be assessed in

light of the circumstances present and the options

available in each instance.

” * ” + ' ”

“*“FRreedom of choice” is not a sacred talisman; it

is only a means to a constitutionally required end—

the abolition of the system of segregation and its

effects. ... (I)f it fails to undo segregation, other

means must be used to achieve this end.’” Green

v. County School Board of New Kent County, 391

U.S. 480, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968)

“We do not hold that ‘free transfer’ can have no

place in a desegregation plan. But like ‘freedom of

choice,’ if it cannot be shown that such a plan will

further rather than delay conversion to a unitary,

5la

non-racial, nondiscriminatory school system, it must

be held unacceptable.” Monroe v. Board of Commis-

sioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d

733 (1968)

“Nearly 17 years ago this Court held, in explicit

terms, that State-imposed segregation by race in

public schools denies equal protection of the laws.

At no time has the Court deviated in the slightest

degree from that holding or its constitutional under-

pinnings....

“The objective today remains to éliminate from the

public schools all vestiges of state-imposed segrega-

tion....

“If school authorities fail in their affirmative obliga-

tions under these holdings, judicial authority may

be invoked. Once a right and a violation have been

shown, the scope of a district court’s equitable pow-

ers to remedy past wrongs is broad, for breadth and

flexibility are inherent in equitable remedies.

* * * * * *

“The school authorities argue that the equity powers

of federal district courts have been limited by Title

IV of the Civil Rights Act of 1964, 42 USC § 2000c.

The language and the history of Title IV shows that

it was enacted not to limit but to define the role of

the Federal Government in the implementation of

the Brown I decision... .

” * * ” * *

“.. The proviso in § 2000c-6 is in terms designed

to foreclose any interpretation of the Act as expand-

ing the existing powers of federal courts to enforce

the Equal Protection Clause. There is no sugges-

tion of an intention to restrict those powers or with-

52a

draw from courts their historic equitable remedial

powers. ...

* * * * * ”

“ ,. . Bus transportation has been an integral part

of the public education system for years. .. .

Eighteen million of the Nation’s public school chil-

dren . . . were transported to their schools by bus

in 1969-70 in all parts of the country.

“ , . The District Court’s conclusion that assign-

ment of children to the school nearest their home

serving their grade would not produce an effective

dismantling of the dual system is supported by the

record.

“Thus the remedial techniques used in the District

Court’s order [pairing, busing, etc.] were [well]

within that court’s power to provide equitable re-

lief. . . .” Swann v. Charlotte-Mecklenburg Bd. of

Ed., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554

(1971)

“As we have held, ‘neigh orhood school zoning’...

is not the only constitutionally permissible remedy;

nor is it per se adequate to meet the remedial re-

sponsibilities of local boards. Having once found a

violation, the district judge or school authorities

should make every effort to achieve the greatest

possible degree of actual desegregation, taking into

account the practicalities of the situation. A district

court may and should consider the use of all avail-

able techniques including restructuring of attendance

zones and both contiguous and noncontiguous at-

tendance zones. . . . The measure of any desegrega-

tion plan is its effectiveness.

“On the record before us, it is clear that... inade-

quate consideration was given to the use of bus

transportation and split zoning. ...” Davis v. Board

53a

of School Commrs., 402 U.S. 33, 91 S.Ct. 1289, 28

L.Ed.2d 577 (1971)

“Just as the race of students must be considered in

determining whether a constitutional violation has

occurred, so also must race be considered in formu-

lating a remedy. To forbid, at this stage, all assign-

ments made on the basis of race would deprive

school authorities of the one tool absolutely essential

to fulfillment of their constitutional obligation to

eliminate dual school systems.

“Similarly, the flat prohibition against assignment

of students for the purpose of creating a racial

balance must inevitably conflict with the duty of

school authorities to disestablish dual school sys-

tems. ... (T)he Constitution does not compel any

particular degree of racial balance or mixing, but

when past and continuing constitutional violations

are found, some ratios are likely to be useful start-

ing points in shaping a remedy....

“We likewise conclude that an absolute prohibition

against transportation of students assigned on the

basis of race, ‘or for the purpose of creating a bal-

ance or ratio,’ will similarly hamper the ability of

local authorities to effectively remedy constitutional

violations. . . .(B)us transportation has long been

an integral part of all public educational systems,

and it is unlikely that a truly effective remedy could

be devised without continued reliance upon it.”

North Carolina Bd. of Ed. v. Swann, 402 U.S. 48,

91 §.Ct. 1284, 28 L.Ed.2d 586 (1971)

IV. Guidelines of this Court—General

It is, of course, recognized by the Court that it can-

not issue a positive order to the General Assembly to

enact specific legislation. It is for such reason that the

54a

Court has suggested several different methods by which

the General Assembly could approach the problem of

effectively desegregating IPS, and it does not imply that

there may not be other equally effective methods which

may occur to that body.

Within the context of what has been suggested as

possible alternatives, however, the Court offers further

observations, as follows:

(1) With respect to the concept of one metropolitan

school district, embracing the area designated in Figure

1, attached to the Court’s opinion in Indianapolis II, it

is apparent that some advantages would be obtained from

such a system. To name a few, a uniform tax base

would be provided for the education of the more than

200,000 pupils in the combined system, and economy in

operation could be achieved through central purchasing

and reduction of administrative overhead. Complete de-

segregation would be simplified. On the other hand, it

may be that such a system would be too large in terms

of difficulty of administration and remoteness of the cen-

tral office from school patrons.

(2) With respect to the concept of creating various

new metropolitan districts—for example, six or eight to

replace the present twenty-four pictured on Figure 1, it

is apparent that some of the advantages above noted

would be reduced, and some of the disadvantages im-

proved. Another alternate, of course, would be to create

one metropolitan system for taxing purposes, which in

turn would be subdivided into several semi-autonomous

local districts. So long as IPS and the local districts are

each effectively desegregated, the method used would be

constitutionally immaterial.

(3) With respect to the concept of permitting the

present school corporations shown on said Figure 1 to

remain as is, insofar as geography and control is con-

cerned, such a solution would of course preserve local

55a

autonomy, and this Court would have no reason to dis-

approve such a solution, so long as each such corporation

is required to participate in the desegregation of IPS.

Put in other terms, local autonomy for such corpora-

tions is, under the law of Indiana, a privilege—not a

right—all as discussed in detail in /ndianapolis II. The

consideration for permitting the various corporations to

continue their separate existences might therefore be

stated to be their participation in a meaningful plan

to desegregate IPS. Some of the pertinent facts which

the General Assembly may wish to consider in this re-

gard are set out in the next two sections hereof.

V. Transfer of Pupils

When speaking of the transfer of pupils, the first

logical question is as to the numbers involved. In this

connection, the focus must be on the elementary schools

within IPS which were not affected by the interim plan

adopted by the Court for the present school year, and

which have an enrollment of Negro pupils exceeding

80%. There are nineteen such schools, fourteen of which

have Negro enrollments in excess of 97%. Two addi-

tional schools have enrollments exceeding 60%, and

should also be considered. The total enrollment of black

students in these 21 schools, excluding kindergarten and

special education students, is approximately 11,500.

The General Assembly might order the exchange of all

or a substantial part of these 11,500 students with stu-

dents from the suburban school corporations. For pur-

purposes of illustration, if it were determined to de-

segregate such schools on the basis of approximately

85% white—15% black, then about 9,775 black children

would need to be transferred to suburban schools, and

about the same number of non-black children would need

to be transferred to IPS.

There is case law to the effect that transfers of stu-

dents must be made on an approximately equal basis in-

56a

sofar as the races are concerned, unless there is good rea-

son why this should not be done. In such cases it has

been held that to impose the “burden” of being trans-

ported wholly or largely upon students of one race is yet

another form of racial discrimination and in violation of

the Fourteenth Amendment rights of the group trans-

ported. United States v. Texas Education Agency, 467

F.2d 848 (5 Cir. 1972); Lee v. Macon County Board of

Education, 448 F.2d 746 (5 Cir. 1971) ; Haney v. County,

Board of Education of Sevier County, 429 F.2d 364 (8

Cir. 1970). Such cases, if followed, would seem to man-

date so-called “two-way” busing, absent compelling rea-

sons to the contrary.

The Supreme Court has not specifically addressed

itself to this question. However, it is worthy of note

that in McDaniel v. Barresi, 402 U.S. 39, 91 S.Ct. 1287,

28 L.Ed.2d 582 (1971), that Court approved a desegrega-

tion plan adopted by the Clarke County (Ga.) Board of

Education which reassigned pupils in five heavily Negro

“ ‘pockets’”’ to other attendance zones, busing many of

them, without any corresponding busing of whites. Other

“one-way” busing plans have likewise been approved, de-

pending on the factual setting. Hart v. County School

Board, 459 F.2d 981 (4 Cir. 1972); Norwalk Core v.

Norwalk Board of Education, 423 F.2d 121 (2 Cir.

1970). Indeed, the Fourth Circuit has flatly held that a

pattern of assigning Negro students to formerly all-

white schools, without requiring similar travel on the

part of whites, does not violate the equal protection

clause of the Fourteenth Amendment. Allen v. Asheville

City Board of Education, 484 F.2d 902 (4 Cir. 1970).

Moreover, analysis of the cases cited in the preceding

paragraph indicates that they have been decided on their

particular facts, even though some of the language is in

terms of absolute requirements.

The Court does not find it necessary to attempt to

resolve this question in terms of constitutional absolutes,

57a

nor could it appropriately do so on the present record,

since the question has not been squarely presented. How-

ever, the record does contain undisputed evidence that

virtually all of the twenty-one IPS elementary schools

above referred to (located as shown on Figure 13, at-

tached) are substantially out of line with the require-

ments of present Indiana law and regulations establish-

ing minimum acreage requirements for elementary

schools. The regulations require seven acres for schools

with 200 or less pupils, plus an additional acre for each

additional 100 pupils or major fraction thereof. Burns’

Indiana Rules & Regs., § (28-415)-3. As reflected in Fig-

ure 14, attached, only one of these schools meets acreage

requirements. Most schools are grossly deficient in the

space required—for example, the pupil density at School

66 is 544.21 pupils per acre, and is 493.57 per acre at

School 42 and 481.33 per acre at School 73. By way of

comparison, the pupil density at School 42, taking into

consideration its enrollment and the State formula, should

be 57.58 pupils per acre. It is thus overcrowded by

857.18 % !

The evidence further shows that, with a Sew excep-

tions, the twenty-one schools in question are among the

older schools in the IPS system—some, dating back 100

years, more or less. Although there is no evidence that

the Board of School Commissioners has aot maintained

such schools as well as could be expected under the cir-

cumstances, it is a fair inference, subject to further

proof, that the type of construction, use of flammable

materials, etc., would fail by a wide margin to meet

safety standards for newly constructed schools. On the

other hand, the evidence discloses that the school plants

maintained by added defendant school corporations are,

for the most part, relatively new and in compliance with

acreage and safety standards.

On the basis of the foregoing facts, therefore, this

Court would not feel justified in condemning out of hand

a “one-way” suburban busing plan involving pupils from

58a

such of the twenty-one schools as may seem to the Board

on analysis, to afford inadequate educational plant fa-

cilities, viewed in the light of current standards. Addi-

tionally, such a plan would involve transportation of sub-

stantially fewer pupils, and therefore be less expensive.

Finally, unless convinced to the contrary by additional

evidence in an appropriate hearing, this Court is not

prepared to characterize busing as an unmitigated “bur-

den.” Although it might appear to a child to be “burden-

some” to be derived of walking to school in the warm

days of May and September (which presupposes that

children do not like to ride in motor vehicles with their

neighborhood friends—a somewhat novel concept to the

Court), the Court doubts that it would seem such a bur-

den to be transported in a heated bus through the rain,

sleet, and snow so familiar in this latitude during other

months of the school term. As pointed out in /ndian-

apolis IJ, nearly 80% of suburban pupils (more than

80% since the elimination of Greenfield) are bused to

school at the present time, without complaint.

The Court is not of the opinion that it would be wise

to require transportation of kindergarten pupils, pri-

marily because of their age, nor to transport special edu-

cation pupils because of the various special problems

which would inevitably arise in this regard. Further, the

Court recognizes that special problems arise with respect

to high school pupils, which might render their transfer

counterproductive once their high school training has

begun. As to pupils in grades 1-8, however, the Court

knows of no reason why transfer of pupils, in whatever

fashion the General Assembly may elect, would not be

reasonable and practical to accomplish the constitu-

tional duty imposed by the Supreme Court, with the

understanding, of course, that a transferred elementary

pupil would thereafter routinely continue to be trans-

ferred to the same transferee school corporation for con-

tinued education through high school.

59a

If, for example, transfers were made of Negro pupils

from those of the twenty-one schools failing to meet

modern standards to the schools of added defendants

situate within the geographical area depicted in said

Figure 1, all of those transferred would be afforded edu-

cation in a desegregated setting. It should be no great

task to desegregate the remaining school or schools within

IPS. The Court estimates, based on the statistics and

projections in the record, that it would be necessary for

the suburban schools within such Figure 1 area, exclud-

ing the Washington Township and Pike Township schools,

to accept transfer of IPS elementary pupils in grades

1-8 in number equivalent to approximately 15% of their

1973-74 enrollments in the same grades in order to ac-

complish this result.

After such transfers were accomplished, the racial per-

centages in each school to which transfers were made

would be approximately 87% white and 13% Negro—a

ratio which, by coincidence, would approximate that of

the nation as a whole. As regards Washington Town-

ship, its minority percentage as projected for the present

school year is already this high, so that general 1-8 trans-

fers to this defendant would not appear to be indicated;

however, the acceptance of pupil initiated transfers from

IPS to its Everett J. Light Industrial Center, to the ex-

tent that vacancies exist, might well be required. Pike

Township likewise has a substantial minority percentage

at this time; however, a number of transfers sufficient to

increase such percentage to a figure approximating that

of the other suburban schools should be considered.

VI. Costs and Mechanics of Transfers

One advantage of the dual transfer system would be

that if approximately equal numbers of pupils were

transferred to and from suburban schools, tuition, trans-

portation, and other costs wouid balance out as between

IPS and the various other corporations, and no additions

60a

to school plants would be necessary. On the other hand,

more pupils would be transported, thus increasing this

total cost, and such a system would continue the use of

the IPS antique buildings and grounds.

A one-way transfer plan would involve substantial tui-

tion payments from IPS to the transferee schools. To

the extent that such tuition applied only to the actual

per capita cost of instruction, utilities, maintenance serv-

ice, ete., no hardship would be imposed upon IPS, be-

cause it is apparent that IPS expense for such services

would be correspondingly reduced. However, the present

transfer law, IC 1971, 20-8.1-6-1 through 20-8.1-6-15, as

amended, Burns’ §§ 28-5001 through 28-5015, also con-

templates charges related to the fair value of the trans-

feree school plant, tax levies for building purposes, and

other items related to capital outlay of the transferee

school. Considering that the State of Indiana is itself at

fault in this matter, as previously found, the General

Assembly should consider whether the State should be

required to contribute the necessary amount to compen-

sate the transferee corporations for the use of their re-

spective plants. Such a provision, with an appropriate

formula, could be adopted as an amendment to the exist-

ing transfer law.

It is possible that the General Assembly could dis-

charge its duty in this matter simply by amending the

existing transfer law. The purpose of such law, as the

Court understands it, is to permit the better accommoda-

tion of school children. As pointed out in Section III

hereof, the Supreme Court of the United States has held

that for a minority child to be compelled to attend a

segregated school denies the Fourteenth Amendment

rights of such child: in effect, the child is not properly

accommodated. Therefore, if the transfer law were

amended to recognize transfers to accomplish desegrega-

tion of a school system which has been finally adjudged

6la

to have been segregated de jure (as is true in the case

of IPS), a basis would be established for other necessary

changes regarding time of payment of tuition, the share

to be borne by the State, the matter of responsibility for

and payment of the cost of transportation, and similar

details. Since the actual number or percentage of pupils

to be transferred is more of an administrative detail than

a legislative function, this matter could be left to the

discretion of the local school board or boards, subject to

the approval of the court having jurisuiction of the case.

VII. Vacation of Certain Previous Orders

The various orders contained in Indianapolis II, and

heretofore stayed by the Court, requiring certain trans-

fers of pupils from IPS to added defendants are each

vacated and set aside. It should be understood, however,

that the reason for this ruling is simply that it would

be inconsistent to permit such orders to stand, although

stayed, inasmuch as the General Assembly, in the exer-

cise of its discretion, may desire to adopt an acceptable

plan which would be inconsistent with such orders.

Moreover, the 5% order contained in Indianapolis II

was designated as a mere interim order, it having been

the Court’s opinion that such amount of transfers would

have been the most which could reasonably be expected to

be accomplished within the limited time between the date

of the order and the beginning of the 1973-74 schooi

term. As it happened, added defendants were able to

convince the Court that even this limited relief could not

be accomplished within the time available, hence the

stay. At this time the Court looks forward to a per-

manent solution to the problem of desegregating IPS,

which will either come from the General Assembly, as

it should, or from this Court in the event of legislative

default. From what has been said herein, it should be

apparent that the Court does not at this time consider

62a

5% transfers as an adequate permanent solution. Indeed,

if the solution is handed back to the Court by default,

additional scrutiny will necessarily be given to complete

consolidation along metropolitan lines.

However, by vacating its previous orders, it is not

the intention of the Court to render moot the appeals

now being prosecuted by added defendants. To the con-

trary, the Court is of the opinion that its conclusions of

law as contained in Indianapolis IJ, as modified and sup-

plemented herein, regarding the duty of the State to

desegregate IPS, the State’s power to adopt a metro-

politan plan or transfer plan for such purpose, and the

duty of the Court to promulgate such a plan in default of

State action within the time presented, all involve con-

trolling questions of law as to which there is substantial

ground for difference of opinion, and that an immediate

appeal from such rulings will materially advance the

ultimate termination of this litigation. It is therefore

respectfully suggested that the Court of Appeals deter-

mine said appeals on the merits, as provided in 28 U.S.C.

§ 1292 (b).

Further, the Court in its previous order of July 20,

1973, Indianapolis II, entered the following: “All de-

fendants who have not done so are directed to institute

appropriate in-service training courses for their respec-

tive faculties and staff, and otherwise to orient their

thinking and those of their pupils toward alleviating the

problems of segregation.” This order was not, and is not

stayed, and neither is it vacated. It therefore remains

as a continuing and final order, operating against added

defendant school corporations, and accordingly does not

appear to be moot.

[See following illustration]

\ = iia

2

‘Bre

wary

e w&

* 7 4/7)

roy

-< ‘ 7 Gt a

' Behe ER. L_

il

\

\ ai

INDIANAPOLIS cD

afte.

. ans tOat ttece X + Chesed

[7] « eo-et sieee me

A ws BF a4 = ea mM

1 853 3.4 14 250.88 60.92 411.81

27 845 1.75 13 482.85 65.00 742.84

4\ 1157 3.0 7 385.66 68.05 566 73

42 691 14 1? 493.57 §7.58 857.18

43 811 26 13 311.92 62.38 500.03

44 1036 35 15 296.00 69.06 428.61

45 864 2.5 14 353.60 63.14 560 02

48 589 36 11 163.61 53.54 305.58

53 1068 10.0 16 106.80 66.75 169.00

56 655 7 12 385.29 $4.58 705.91

60°" 1152 29 7 397.24 67.76 5a 24

63 383 15 9 255.33 42.55 600 07

66 1034 19 15 §44 21 68.93 789.51

ral 1274 02 18 155.36 70.77 219 52

73 1083 2.25 16 481.33 67.68 711.18

75 793 1.75 13 453.14 61.00 742 85

7 594 15 11 396.00 54.00 73333

83 496 11.0 10 45.09 49.60 -9.10

110 1296 10.6 18 122.26 72.00 194.26

Ken.” 552 15 eI 368 00 50.18 73335

** Schoo! 60 and Mapleton-Fall Creek School

* Kennedy Middle School

A-=Flementary Schools

fh-~—September 1972 Enrollment

C.--Acreage of School Site

0 —Minimum State Required Acreage

E--Pupils Per Actual Acre

fF ~ Pupils Per Minimum Required Acre

G-

~—Percent Overcrowded

Fig. 14