Record and brief — Ohio State Board of Education v. Reed

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81-1330 [ita

JAN 15 1982

in Che ALEXANDER L. STEVAS

Supreme Court of the Neikh Bis

October Term, 1981

No.

THE OHIO STATE BOARD OF EDUCATION AND

SUPERINTENDENT OF PUBLIC INSTRUCTION,

Petitioners,

vs.

ROBERT ANTHONY REED, III, et al,

AND

GARY L. PENICK, et al,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOK THE SIXTH CIRCUIT

Mark Patrick O'NEILL

2500 Terminal! Tower

Cleveland, Ohio 44113

(216) 241-6602

Counsel for Petitioners

January 15, 1982

QUESTIONS PRESENTED

1. On what basis may a state board of education be

deemed to have violated its duty under the Equal Pro-

tection Clause of the Fourteenth Amendment for failing

to discover and eliminate intentionally segregative prac-

tices by a local board of education?

2. Should a state board of education be held in

violation of the Equal Protection Clause for not discover-

ing and correcting intentional segregative practices by a

local board of education in the abseace of any finding.

conformable to Keyes ©. School Board No. 1, 413 U.S. 189

(1973), that its failure was attributable to its own “in-

tentionally segregative policy’?

3. Should a state board of education, which has been

guided by contemporary case law in exercising its over-

sight responsibilities toward local school distrets, be held

in violation of the Equal Protection Clause for failing to

correct practices of a local school district which are not

unlawful at the time, if such practices are judicially de-

termined at a later date to be unconstitutional?

TABLE OF CONTENTS

PEE KeRdareresscénstdneusccsccccccténecseses

SEE 5 6 nue Sdcuek cnanekkensauecsddises

QUESTIONS PRESENTED .............ccceeeeee

CONSTITUTIONAL PROVISION INVOLVED ......

STATEMENT OF THE CASE ................06..

i I IN os ann ak cececdesddgecdes

B. Historical Background ...................:-

C. The Court of Appeals’ Test for the Liability of

the State Defendants ...................0:-

1. THIS CASE PRESENTS IMPORTANT QUES-

TIONS CONCERNING THE CONSTITU-

TIONAL RESPONSIBILITY OF STATE

BOARDS OF EDUCATION TO ELIMINATE

THE INTENTIONALLY SEGREGATIVE

PRACTICES OF LOCAL BOARDS OF ED-

I ie iutund ces ccanhesdeensesedss

2. THE TEST FOR THE CONSTITUTIONAL

RESPONSIBILITY OF THE OHIO STATE

BOARD OF EDUCATION, AS APPLIED BY

THE COURT OF APPEALS, CONFLICTS

WITH DECISIONS OF THIS COURT

WHICH REQUIRE A FINDING OF “INTEN-

TIONALLY SEGREGATIVE POLICY” BY A

BOARD OF EDUCATION BEFORE IT MAY

BE DEEMED TO BE IN VIOLATION OF

THE EQUAL PROTECTION CLAUSE OF

THE FOURTEENTH AMENMENT ........

CE CscWeedescchtundveeenasckseWasee’

als dake i

TABLE OF CITATIONS

Arthur v. Nyquist, 573 F. 2d 134 (2nd Cir., 1978), cert.

denied, 439 U.S. 860 (1978) ..............-. 205.

Board of Education v. State, 45 Ohio St. 555 (1888) ...

Board of Education of School District of City of Dayton

v. State ex rel. Reese, 114 Ohio St. 188 (1926) ......

Bradley v. Milliken, 484 F. 2d 215 (6th Cir., 1973) ....

Brown v. Board of Education, 437 U.S. 483 (1954) ....

Buchanan v. Evans, 423 U.S. 963 (1975) ............

Clemons v. Board of Education of Hillsboro, 228 F. 2d

OD (0M Cie, BIDDD oo. ccc conc cccccccccccecs:

Columbus Board of Education v. Penick, 443 U.S. 449

i <Soc cat au eeul ou ccKeve cl eek keNeee ae’

Craggett v. Cleveland Board of Education, 234 F. Supp.

381 (N.D. Ohio, 1964), aff'd, 338 F. 2d 941 (6th Cir.,

SE Sedo cau ahah be eekns.s cd dascuned acd cnuekees

Dayton Board of Education v. Brinkman, 433 U.S. 406

Ss EY A RUUD ccc cccccaccccvccucce

Deal v. Cincinnati Board of Education, 369 F. 2d 55 (6th

Cir., 1966), affd after remand, 419 F. 2d 1387 (6th

Cir., 1969), cert. denied, 402 U.S. 962 (1971) ......

Evans v. Buchanan, 393 F. Supp. 428 (D. Del., 1975) ..

Green v. County School Board, 391 U.S. 430 (1968) ...

Keyes v. School Board No. 1, 413 U.S. 189 (1973) ....

Liddell v. Board of Education, City of St. Louis, 491

F. Supp. 351 (E.D. Mo., 1980) ................0-

Morgan v. Kerrigan, 379 F. Supp. 410 (D. Mass., 1974),

aff d, 509 F. 2d 580 (Ist Cir., 1975) ..............

Page

14,17

10, 14

iii

Page

Penick v. Columbus Board of Education, 583 F. 2d 787

(6th Cir., 1978), 663 F. 2d 24 (6th Cir., 1981) ..... 4,15

Reed v. Rhodes, 5300 F. Supp. 404 (N.D. Ohio, 1980),

607 F. 2d 714 (6th Cir., 1979), cert. denied, 445 U.S.

935 (1980), 662 F. 2d 1219 (6th Cir., 1981) ....... 4

Swann v. Charlotte-Mecklenberg Board of Education,

WS oso ocevcuccscacececcescocess 14

U.S. v. Board of School Commissioners of The City of

Indianapolis, 637 F. 2d 1101 (7th Cir., 1980) ....... 14

Washington v. Davis, 426 U.S. 229 (1976) ........... 17

INDEX TO APPENDIX

Page

Penick v. Columbus Board of Education

Opinion and Order of the District Court (January 8,

BEE wbncinensedeesasnawasaeeeleee 1

Judgment Entry of the District Court (January 8,

EE Ved vieenkwsced © au we ow anh Ween 37

Opinion of the Court of Appeals for the Sixth Circuit

TN ek, GED souk vac nnue sauna 38

Judgment Entry of the Court of Appeals (October 21,

GUND wvcendecdutseseedaedene eee 51

Reed v. Rhodes

Memorandum Opinion and Order of the District

Court (September 23, 1980) .................. 53

Judgment Entry of the District Court (September 24,

BOUIN sesh iocsvaberesncsssn eel 97

Opinion of the Court of Appeals for the Sixth Circuit

a 8 Rs er ee 98

Judgment Entry of the Court of Appeals (October 21,

BUUED cvccccscecseecsceeeeeeeesaueae 123

Plaintiffs’ Exhibit SL-46, Statement of Rufus Pierce

to State Board of Education, April 13, 1970 ...... 125

Ibid., Statement of Edith Gaines to State Board of

eiion, Gel BE, TEGO so + co skvccesesaucaeeas 126

Iu The

Supreme Court of the United States

October Term, 1981

No.

THE OHIO STATE BOARD OF EDUCATION AND

SUPERINTENDENT OF PUBLIC INSTRUCTION,

Petitioners,

vs.

ROBERT ANTHONY REED, III, et al,

AND

GARY L. PENICK, et al,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioners, The Ohio State Board of Education and

Superintendent of Public Instruction, pray that a writ of

certiorari issue to review the judgments and opinions of

the United States Court of Appeals for the Sixth Circuit

entered in these proceedings on October 21, 1981.

The adverse Reed respondents are the plaintiff class

consisting of all black children attending public schools

in the Cleveland, Ohio school district. The adverse Penick

respondents are the plaintiff class consisting of all black

children attending public schools in the Columbus, Ohio

school district. Additional respondents are the Cleveland

and Columbus Boards of Education and their superin-

tendents, the Ohio State Controlling Board, and the Audi-

tor of State. The United States has been amicus curiae in

the Cleveland case since it was invited by the District

Court to enter that case in 1977.

OPINIONS BELOW

This petition seeks the review of two decisions of the

United States Court of Appeals for the Sixth Circuit

which involve closely related questions concerning the

duties of the Ohio State Board of Education and Superin-

tendent of Public Instruction under the Equal Protection

Clause of the Fourteenth Amendment to correct de jure

segregation in the Cleveland and Columbus school dis-

tricts. The opinion in the Cleveland case is reported as

Reed v. Rhodes, 662 F. 2d 1219 (6th Cir., 1981). It af-

firmed the decision of the District Court which is reported

at 500 F. Supp. 404 (N.D. Ohio, 1980). The opinion of

the Court of Appeals in the Columbus case is reported as

Penick v. Columbus Board of Education, 663 F. 2d 24

(6th Cir., 1981). It affirmed an unreported decision of the

District Court for the Southern District of Ohio.

JURISDICTION

The judgments of the Court of Appeals were entered

in both the Cleveland and Columbus cases on October

21, 1981, and this petition for certiorari was filed within

90 days of that date. This Court's jurisdiction is invoked

under 28 U.S.C. Section 1254(1).

QUESTIONS PRESENTED

1. On what basis may a state board of education be

deemed to have violated its duty under the Equal Pro-

tection Clause of the Fourteenth Amendment for failing

to discover and eliminate intentionally segregative prac-

tices by a local board of education?

2. Should a state board of education be held in

violation of the Equal Protection Clause for not discover-

ing and correcting intentional segregative practices by a

local board of education in the absence of any finding,

conformable to Keyes v. School Board No. 1, 413 U.S. 189

(1973), that its failure was attributable to its own “in-

tentionally segregative policy”?

3. Should a state board of education, which has been

guided by contemporary case law in exercising its over-

sight responsibilities toward local school distrcts, be held

in violation of the Equal Protection Clause for failing to

correct practices of a local school district which are not

unlawful at the time, if such practices are judicially de-

termined at a later date to be unconstitutional?

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Amendment XIV, Section 1:

.. . LNJor shall any State . . . deny to any person

within its jurisdiction the equal protection of the

laws.

STATEMENT OF THE CASE

A. Procedural History

The plaintiff classes instituted these actions in the

district courts to redress the claimed deprivation of rights

guaranteed under the Fourteenth Amendment to the Con-

stitution of the United States. Jurisdiction was invoked

under 28 U.S.C. Sections 1331(a), 1343(3) and (4), and

42 U.S.C. Sections 1981, 1983-1988 and 2000(d). The

defendants were the Cleveland and Columbus Boards of

Education, their superintendents, the State Board of Edu-

cation and Superintendent of Public Instruction, the Gov-

ernor, and the Attorney General. After lengthy trials the

district courts dismissed the Governor and Attorney Gen-

eral but found that the city school administrations had

been guilty of acts 2d omissions which were intended

to maintain racial segregation in the schools. The district

courts found that the State Board of Education and Super-

iatendent of Public Instruction (referred to hereafter as

the state defendants) failed to detect or correct the local

defendants’ acts of de jure segregation and were therefore

in violation of their Fourteenth Amendment duties.

On appeal, the district courts’ findings with respect

to the local school boards were affirmed,’ but the cases

were remanded to the district courts for further considera-

tion of the state defendants’ liability.* Further hearings

were conducted on that issue, resulting in additional find-

ings by the district courts and judgments against the state

defendants which were affirmed by the Court of Appeals

for the Sixth Circuit on October 21, 1981. Those judgments

are the ones which petitioners pray that this Court review.

In Cleveland, the District Court found that “the State

defendants either (1) had knowledge of the existence of

substantial intentional segregative practices by the Cleve-

land defendants, or (2) were confronted with information

of such magnitude that such knowledge could be imputed

to them; and that their failure to investigate and to correct

the violations was intentionally supportive of such prac-

tices.” (App. 76). The Court of Appeals held that the

District Court’s findings were not clearly erroneous. It

1 Reed v. Rhodes, 607 F. 2d 714 (6th Cir., 1979), cert. denied,

445 U.S. 935 (1980); Penick v. Columbus Board of Education, 583

F. 2d 787 (6th Cir., 1978), affirmed, Columbus Board of Education

v. Penick, 443 U.S. 449 (1979).

2 Reed v. Rhodes, 607 F. 2d 714, 718 (6th Cir., 1979); Penick

v. Columbus Board of Education, 583 F. 2d 787, 818 (6th Cir.,

1978). :

found that “the State Board had direct knowledge of the

Cleveland Board's intentional school segregative practices”

and that “the motivation (and the effect) of the State

Board on this total record must be held to be the per-

petuation of racial segregation.” (App. 113, 114).

In Columbus, the District Court found that the knowl-

edge which the state defendants had of practices in that

school district “other than that relating to faculty assign-

ments, does not rise to the level of actual knowledge of

intentional segregative practices.” (App. 31). However,

it concluded that the knowledge which the state defendants

did have would have caused a reasonable person, charged

with the same legal duties as the state defendants, “to

initiate an investigation into the causes of segregation in

the Columbus public schools.” (App. 31-32). The failure

of the state defendants to do this in Columbus was found

by the District Court to be “another manifestation of the

enduring policy of the State Board to let some other gov-

ernmental agency handle this emotionally-charged issue.”

(App. 32). The Court of Appeals held that the District

Court's findings were not clearly erroneous. It found that

“the State Board had direct knowledge of the Columbus

Board's intentional school segregative practices” and that

its failure to investigate further and to correct the racial

imbalance which it knew of was motivated by intent to

perpetuate segregation. (App. 50).

B. Historical Background

In 1887 the Ohio General Assembly repealed the

statute under which boards of education had been author-

ized to maintain separate schools for black children. In

1888 the Ohio Supreme Court held that by virtue of this

action “separate schools for colored children have been

abolished” and that school boards no longer had any au-

thority to make assignments “with reference to the race

or color of the youth.” Board of Education v. State, 45

Ohio St. 555, 556 (1888). Occasional efforts thereafter by

some local boards to maintain segregated schools were

struck down as contrary to the public policy of the state.

Board of Education of School District of City of Dayton

v. State ex rel. Reese, 114 Ohio St. 188 (1926); Clemons

v. Board of Education of Hillsboro, 228 F. 2d 853 (6th

Cir., 1956) (citing state and federal laws).

In 1954 the Ohio Constitution was amended to pro-

vide for an elected State Board of Education. The first

State Board took office in January 1956 and promptly

addressed the question of its authority to investigate for

racially segregated schools, the existence of which had

been suggested by one of the Board’s members. The Board

referred the question of its authority to the Attorney

General for an opinion. In July 1956 the Attorney General

advised the Board that it had the responsibility in the first

instance to determine whether school districts were in

conformance with law; that a district which maintained

segregated schools would not be in conformance with

state or federal law and would not be entitled to state

funding; and that the Board had authority to conduct

hearings and compel the attendance of witnesses to deter-

mine whether as a matter of fact segregated schools exist-

ed. (The full text of the opinion appears at App. 115-122).

Thereafter the State Board determined to act on any

notice of segregation which might be brought to it but

not to initiate investigations in the absence of notice.

The first notice of claimed segregation which the

Board received was in 1963 when representatives of the

Cincinnati branch of NAACP asserted that the Cincinnati

school district was intentionally segregating black children

in an elementary school. The State Board requested a

response from the Cincinnati school district. After con-

sidering all the reported facts the Board was unable to

conclude that Cincinnati's procedures were unlawful, and

it invited the complainants to seek a judicial determination.

They did so, and in 1965 those procedures were found

by the U.S. District Court for the Southern District of

Ohio to be permissible exercises of administrative dis-

cretion. (Reed, Rehearing Transcript, 779-780).

In 1964 the State Board received a complaint from

Hamilton County representatives of the NAACP that all

the black children of elementary age in the North College

Hill local school district were being gerrymandered into

one elementary school. The State Board ordered an investi-

gation. It found the local board’s practice to be intolerable.

The school was closed and the pupils were reassigned,

to the satisfaction of the complainants ( Penick, T. 5839-40,

6021; Rehearing T. 116-117, 122-123). The State Board

thus demonstrated its willingness to investigate claims

of de jure segregation and to eliminate de jure practices.

This policy was subsequently implemented by the Depart-

ment of Education without need for State Board action

wher evidence of de jure practices was brought to the

attention of the Superintendent of Public Instruction. On

his order segregative practices in Middletown and Toledo

were eliminated (Penick, T. 6037-39, 6144-45; Reed, T.

3955-57 ), and in 1973 the Dayton school district was or-

dered to correct its segregative practices when the Depart-

ment of Education learned of them (Reed, PX 381).

The difference between de jure and de facto segre-

gation was a troubling matter on which state education

officials took their direction from federal courts. In the

1960's the Cleveland and Cincinnati school districts were

involved in litigation to test whether their policies and

the racial balances which existed in those cities were un-

constitutional. In Cleveland the local school board's pro-

gram of school construction, which involved the develop-

ment of new elementary schools in neighborhoods which

were predominantly of one race and which would produce

school populations which would be foreseeably of one

race, was held by the U.S. District Court for the Northern

District of Ohio to be constitutionally permissible, and

the Cleveland school district was found by that Court to

be free of segregative intent. Craggett v. Cleveland Board

of Education, 234 F. Supp. 381 (N.D. Ohio, 1964), affd,

338 F. 2d 941 (6th Cir., 1964). The effect of this decision

on the State Board was to induce the belief that although

there were substantial racial concentrations in the schools

of Cleveland those conditions were not the product of

unconstitutional action by local school officials. (Reed,

T. 3582-83, 3960-62; Rehearing Transcript, 152-153, 172-

178, 285-287, 500, 600-602).*

Comparable litigation occurred in Cincinnati in the

mid-1960's. The District Court for the Southern District

of Ohio found that the administration of the Cincinnati

school district was not marked by segregative intent. As in

Cleveland, the Court approved the neighborhood school

assignment policy and held that notwithstanding racial

imbalances the school board was not constitutionally re-

quired to reassign or transport pupils to achieve a more

even distribution. (Penick, T. 5868-70; Reed, T. 3960-62).

The District Court’s decisions were affirmed by the Sixth

Circuit twice. Deal v. Cincinnati Board of Education, 369

F. 2d 55 (6th Cir., 1966), affd after remand, 419 F. 2d

1387 (6th Cir., 1969), cert. denied, 402 U.S. 962 (1971).

Because of the Craggett and Deal decisions, which

exonerated the Cleveland and Cincinnati school districts

of charges of unconstitutional discrimination, upheld the

neighborhood school policies of those boards of education,

and tolerated a substantial degree of racial concentration,

the State Board of Education was led to believe that racial

imbalances in urban school systems were not unlawful so

long as they were not the product of gerrymandering and

8 The U.S. Civil Rights Commission investigated the Cleveland

school system in 1966. Its report, published in 1967, made no asser-

tion that de jure segregation existed there.

that neighborhood schools were constitutionally viable.

(Penick, Rehearing Transcript, 160-164; Reed, Rehearing

Transcript, 152-153, 172-178, 285-287, 500, 600-602).

In 1968 the State Board of Education adopted a

policy statement on equal educational opportunity. Racial

imbalance in schools due to residential housing patterns

and the assignment of children to neighborhood schools

was regarded as falling within the purview of local boards

and was not considered subject to corrective mandate by

the State Board.* However, the State Board considered

de facto segregation undesirable. It called for “specific

effort on the part of all school districts to find ways to

move toward the solution of the problems of de facto

segregation.” The State Board committed itself to assist

districts to achieve integrated education. An Assistant

Superintendent for Urban Education was appointed to

head the Department of Education’s Office of Equal Edu-

cational Opportunity. This agency thereafter provided a

variety of desegregation services which resulted in the

elimination of de facto concentrations in a number of

school districts (Reed, T. 3813, 3828, 3835; Penick, T.

5943-46).

At no time did the State defendants believe that un-

constitutional segregation existed in Cleveland or Colum-

bus. Cleveland had been vindicated in the Craggett case

4In Ohio, local school boards are substantially autonomous.

They may exercise their own discretion about most operational

matters free from state control. State officials do not approve the

siting or construction of new school buildings. They do not deter-

mine the attendance area which a school serves. The assignment of

children and staff is the prerogative of the district superintendent.

(Reed, T. 4003). So long as local administrators lawfully exercise

their discretion concerning school siting, teacher and pupil assign-

ments, boundary lines, grade structure, transportation arrange-

ments, etc., the State Board of Education has no authority to require

them to make different provisions. Only when local administrators

act unlawfully may state officials mandate corrective action.

in 1964, and the charge of de jure segregation against

Cincinnati had been twice refuted in Deal. There was

nothing about Columbus which seemed significantly dif-

ferent. The Urban League’s 1967 analysis of the Columbus

schools concluded that the only segregation there was

de facto (Penick, Rehearing Transcript, 155-157, DX 7,

p. 38).

The state defendants had no knowledge of the obscure

decisions of the Cleveland and Columbus school districts

which were later found in these cases to have been inten-

tionally segregative. (Penick, Rehearing Transcript, 74-75,

128; Reed, Rehearing Transcript, 245-248, 482-489, 584-

588, 594-597, 600-604, 613, 801-802). Prior to the filing

of these cases in 1973 no complaints of illegal segregation

in Cleveland or Columbus were made to the State Board

by the NAACP, any federal agency, or any other person

or organization. (Penick, T. 5958-59, 6035; Rehearing

Transcript, 74-75; Reed, Rehearing Transcript, 500-501,

626-627) .°

C. The Court of Appeals’ Test for the Liability of the

State Defendants

The Court of Appeals held that Dayton Board of

Education v. Brinkman 433 U.S. 406 (1977), precludes

5 In Reed the District Court considered that oral presentations

by two parents to a State Board meeting on April 13, 1970 consti-

tuted notice of segregation in Cleveland. The full text of their

statements is included in the Appendix, pp. 125-128. As they dis-

close, neither parent claimed any segregation in Cleveland. The

District Court also considered that a letter written to the U.S. De-

partment of Health, Education and Welfare by a Cleveland parent

in 1970 requesting the withholding of federal funds from Cleveland

put the state defendants on notice of illegal segregation in Cleve-

land. HEW’s report of its investigation disclosed only some in-

equality of educational services between Glenville and Collinwood

High Schools, overcrowding at Glenville and underutilization of

Collinwood. No segregation was found or reported by HEW (Reed,

Rehearing PX 62).

a finding of constitutional violation by a state board predi-

cated merely on its failure to compel local boards to comply

with the United States Constitution. Rather, “knowledge

by the state of intentional segregative practices on the

part of the local board and intentional support of the local

board in pursuing such practices appear to be requirements

for a finding of constitutional violation.” Reed v. Rhodes,

607 F. 2d at 718. (App. 99).

Petitioners concede the nominal validity of this test

provided its application also satisfies the bedrock Keyes

principle that a school board’s violation of the Equal Pro-

tection Clause must be established by proof of its “inten-

tionally segregative policy.” Keyes v. School District No. 1,

413 U.S. 189, 208 (1973). The Court of Appeals’ test is

erroneous in its application to these petitioners because

its judgment is not based on a finding that petitioners

actually had an “intentionally segregative policy.” It rests

principally on the Court's opinion that petitioners should

have been more vigorous in the assertion of their authority

to investigate and should have uncovered the segregative

intent which tainted operational decisions of the Cleveland

and Columbus boards.

D. The District Courts’ Findings

Columbus

The essential basis for the District Court’s judgment

in the Columbus case was that the State Board should

have suspected illegal segregation, did not investigate the

reasons for Columbus’ racial imbalance, and did not make

the same determination of de jure segregation which the

District Court itself made after a lengthy trial. The District

Court considered this to be “intentional condonation of

the unlawful status quo.” (App. 33). It did not attribute

the lack of inquiry to an intentionally segregative policy

of the State Board. Rather, it found that the State Board’s

outlook was one of “studied indifference.” (Id., 6). Its ap-

proach was “hands off, let someone else do it.” (Id., 30).

Its policy was “to let some other governmental agency

handle this emotionally-charged issue.” (Id., 32). It would

do its duty to investigate for de jure practices only if “some-

one informed it that its duty needed to be done.” (Id., 31).

The Court acknowledged that “it cannot be said that the

state defendants looked the other way while constitutional

rights were being thwarted; it can be said, however, that

they closed their eyes knowing that the law required them

open.” (Id., 34). The Court found that except for the

assignment of teachers the State Board’s knowledge of

Columbus’ operations did “not rise to the level of actual

knowledge of intentional segregative practices.”* (Id., 31).

Cleveland

In the Cleveland case the District Court described

eight events which suggested to it that the State Board

either knew or should have known of Cleveland’s segrega-

tive practices: (1) the existence of special schools for black

children in 1930; (2) the state’s approval of Cleveland's

request to resort to half-day sessions in overcrowded

schools in 1958 and 1959; (3) the submission of a study

in 1967 by a local university professor to the U.S. Civil

Rights Commission reporting some intentionally segrega-

tive practices in the Cleveland school district; (4) the

State Department of Education’s receipt of a letter in 1970

* Disproportionate assignments of black teachers to predomi-

nantly black schools were brought to the attention of the Depart-

ment of Education, which did not condone these assignments but

identified them as something which needed correction. Columbus

accepted the Department's proposal to work with it on staff reas-

signment (Penick, T. 5952-5953). By the time of trial in 1976 Co-

lumbus’ teaching staff had been reassigned on a racially neutral

basis under a 1974 consent decree approved by the Ohio Civil

Rights Commission.

from a Cleveland parent to the U.S. Department of HEW

claiming that segregation was practiced in Cleveland; (5)

oral addresses to the State Board of Education in 1970

by two parents; (6) the Department of Education’s survey

in 1968 of the racial composition of each of Cieveland’s

schools; (7) the denial by HEW in 1975 of Cleveland's

application for ESAA funding; and (8) the State Board’s

general awareness of the extent of racial isolation in the

Cleveland schools. See App. 76-84 for the District Court's

discussion.”

Although the District Court condemned the State

Board's failure to press an investigation into the causes of

racially imbalanced schools in Cleveland, it did not find that

the State Board's failure to do this was attributable to an

intentionally segregative policy. The Court found that “the

failure of the state defendants to investigate de facto

segregation ultimately appears to have been motivated by

a desire to maintain the status quo.” 500 F. Supp. at 423.

(App. 89). Given the decision in Craggett v. Cleveland

Board of Education, the State Board believed that the

status quo was not unlawful and that it therefore lacked

authority to order Cleveland to eliminate de facto segre-

gation.

7 Succinctly stated, Petitioners’ response was: (1) that there

was no evidence that the special schools in 1930 were intentionally

segregated; (2) the state did not know of any segregative practice

in connection with the halfday sessions in 1958-59, nor did it know

of the racial composition of the schools which were involved; (3)

the state first learned of the professor's report in 1976, during the

trial; (4) HEW’s investigation of the complaint disclosed no segre-

gation in the Cleveland school system; (5) the parents did not

report any segregative practice to the State Board during their

remarks; (6) racially imbalanced schools were not considered un-

lawful in view of the Craggett decision, which exonerated Cleve-

land of the charge of unconstitutional segregation; (7) HEW’s

denial of funding was not based on any claim by it that Cleveland

was unlawfully segregated; and (8) de facto segregation in Cleve-

land was common knowledge.

WHY THE WRIT SHOULD BE GRANTED

1, THIS CASE PRESENTS IMPORTANT QUESTIONS

CONCERNING THE CONSTITUTIONAL RESPON-

SIBILITY OF STATE BOARDS OF EDUCATION

TO ELIMINATE THE INTENTIONALLY SEGRE-

GATIVE PRACTICES OF LOCAL BOARDS OF

EDUCATION,

Although the responsibility of local boards of educa-

tion to abstain from racially segregative practices and to

eliminate the effects of past discrimination has been fully

explained by this Court," it has not defined the respon-

sibility of state boards of education to eliminate segregated

schools at the local district level.

In cases where local segregation is the result of in-

tentionally segregative acts by a state legislature, courts

have found equal protection violations by the states. U.S.

v. Board of School Commissioners of The City of Indian-

apolis, 637 F. 2d 1101, 1105-1108 (7th Cir., 1980); Evans

v. Buchanan, 393 F. Supp. 428, 442-443 (D. Del., 1975),

affd sub nom. Buchanan v. Evans, 423 U.S. 963 (1975);

Bradley v. Milliken, 484 F. 2d 215, 238 (6th Cir., 1973). In

states where segregated schools were mandated by statute

or constitution in 1954, state boards of education have

been under a continuing duty to eliminate the continuing

effects of past de jure practices, and their failure to take

effective action has been deemed unconstitutional. Liddell

v. Board of Education, City of St. Louis, 491 F. Supp. 351

(E.D. Mo., 1980). Where a state board of education has

been involved in the siting and construction of new schools

8 Brown v. Board of Education, 437 U.S. 483 (1954); Green v.

County School Board, 391 U.S. 430 (1968); Swann v. Charlotte-

Mecklenberg Board of Education, 402 U.S. 1 (1971); Keyes v.

School District No. 1, 413 U.S. 189 (1973); Dayton Board of Edu-

cation v. Brinkman, 433 U.S. 406 (1977) and 443 U.S. 526 (1979);

and Columbus Board of Education v. Penick, 443 U.S. 449 (1979).

and has thereby played an active role in the creation of

segregated conditions, it has been found guilty of an equal

protection violation. Bradley v. Milliken, supra, at 242.

In Ohio, segregated schools have been illegal since

1887, and no affirmative act by the state legislature or the

State Board of Education caused the Cleveland or Colum-

bus schools to be segregated." In these cases petitioners

have been found guilty of an equal protection violation

because of their failure to discover and correct the segre-

gative practices of the Cleveland and Columbus school

districts.

On similar facts the Second Circuit reversed a finding

that the New York Board of Regents was guilty of an

equal protection violation because of its failure to eliminate

segregation in the Buffalo schools. Arthur v. Nyquist, 573

F. 2d 134 (2nd Cir., 1978), cert. denied, 439 U.S. 860

(1978). The claim there was the same as the one here:

that the Regents “failed to combat segregation as aggres-

sively as they might have.” Id., 146. The Second Circuit

rejected this failure as a basis of liability, finding no link

between illicit segregation in Buffalo and any “intentional

policy adopted by the state appellants which indicates

specific approval” of the local district's segregative actions.

Accord, Morgan wv. Kerrigan, 379 F. Supp. 410, 476-477

(D. Mass., 1974), affd, 509 F. 2d 580 (Ist Cir., 1975)

(state board of education found not guilty of equal pro-

tection violation for failing to rectify segregative practices

of Boston School Committee ).

Although there is no direct conflict between the de-

cisions of the Second and Sixth Circuits in these cases,

the disparate results are due to the Sixth Circuit's disposi-

tion to find an equal protection violation by a state school

*“This record does not show any act on the part of the State

Board which required the Columbus Board to pursue the segrega-

tive policies which the District Judge and this Court have found.”

Penick v. Columbus Board of Education, 583 F. 2d 787, 818 (6th

Cir., 1978) (emphasis in the original).

board in the absence of evidence that the board had an

intentionally segregative policy.

The basis on which a state board of education should

be deemed constitutionally liable for failing to correct

segregation in a local school district is an important, re-

curring and unresolved issue which this Court should

decide.

2. THE TEST FOR THE CONSTITUTIONAL. RE-

SPONSIBILITY OF THE OHIO STATE BOARD OF

EDUCATION, AS APPLIED BY THE COURT OF

APPEALS, CONFLICTS WITH DECISIONS OF

THIS COURT WHICH REQUIRE A FINDING OF

“INTENTIONALLY SEGREGATIVE POLICY” BY

A BOARD OF EDUCATION BEFORE IT MAY BE

DEEMED TO BE IN VIOLATION OF THE EQUAL

PROTECTION CLAUSE OF THE FOURTEENTH

AMENDMENT.

The Sixth Circuit’s test for an equal protection viola-

tion by a state board of education is facially harmonious

with Supreme Court decisions which emphasize the ele-

ment of segregative intent as the basis on which an equal

protection violation must be predicated." As applied to

these petitioners, however, the Court of Appeals’ test is

incomplete, inequitable and inconsistent with Keyes v.

School District No. 1, 413 U.S. 189 (1973).

Keyes held that “the differentiating factor between

de jure segregation and so-called de facto segregation to

which we referred to in Swann is purpose or intent to

segregate.” 413 U.S. at 208. Under Keyes, “intentionally

segregative policy” and “purpose or intent to segregate”

The Court of Appeals stated: “As we have indicated . . .

knowledge by the state of intentional segregative practices on the

part of the local board and intentional support of the local board

in pursuing such practices appear to be requirements for a finding

of constitutional violation.” (App. 99).

are indispensible predicates for a finding that a school

board has violated the Equal Protection Clause. Accord,

Washington v. Davis, 426 U.S. 229, 240 (1976). In Colum-

bus Board of Education v. Penick, 443 U.S. 449, 464 (1979)

this Court approved statements that plaintiffs in a school

desegregation case must not only “prove that segregated

schooling exists but also that it was brought about or

maintained by intentional state action,” and that school

officials “intended to segregate.” There is no reason why

this rule for local school officials should not also apply

to a state board of education. Before the latter may be

considered to have violated its obligations under the Equal

Protection Clause, it should be established that illegal

segregation in a local district is the product of the state

board’s “intentionally segregative policy.”

In the present cases petitioners were not found by the

District Courts to have had a purpose or intent to segregate

children in the Cleveland or Columbus schools. The record

is clear that the State Board and the Department of Edu-

cation eliminated de jure practices when such practices

were brought to their attention. Their basic policy was

to encourage local school districts to eliminate de facto

concentrations, and they carried out that policy in many

supportive ways." In concluding that petitioners violated

their equal protection duties, the Court of Appeals dis-

regarded the substantial record of desegregative action

On-site desegregative assistance had been provided to 118

school districts as of January, 1976, when the Reed case was tried.

It consisted of demographic studies, counselling, and recommenda-

tions for boundary line adjustments, pairing, changes in attendance

zones, alteration of grade levels, and other changes (Reed, T.

3813-3828, 3835). Publications on desegregative measures were

prepared and distributed (id., 3801-3805), districts were assisted

in recruiting minority teachers (id., 3811), integrative consolida-

tions of schoo! districts were promoted and achieved (id., 3927-

3934,) and racially motivated transfers of school district territories

were prohibited by the State Board (id., 3923-3927).

by petitioners, ignored the evolving case law as to what

was not, and later was, unconstitutional, and ascribed to

the petitioners arguments they did not make and rationales

which never served as a basis for their policy."

Petitioners are considered to be in violation of the

Equal Protection Clause not because they had an inten-

tionally segregative policy or independent segregative in-

tent, but because they are deemed to have had knowledge

of a few circumstances which, years after the events, were

held to be segregative in a de jure sense, although at the

time in question no responsible agency or knowledgeable

observers characterized those circumstances as unlawful.”

‘2 The Court of Appeals stated that petitioners “assert that

they had no duty to inform themselves and provide a remedy,

until and unless there was court adjudication of the illegality of

the questionable segregative practice or incident” and that peti-

tioners argued “that absent a legal finding by a court, they had no

duty to take action to end segregation in Ohio schools.” (Reed,

App. 109, 111). No such assertions were made by petitioners. The

record demonstrates that petitioners eliminated intentionally segre-

gative practices in the North College Hill, Toledo and Middletown

districts without any court adjudication. The Court of Appeals’

statement “that in the history of Ohio, defendants never fulfilled

[their] duty . . . to desegregate any schools which had been in-

tentionally segregated” (App. 113) is unwarranted.

The Court also stated, erroneously, that “the principal defense

that the state defendants advance for their failure to act to de-

segregate the Columbus schools after 1954 is that they had not

been put on notice by any court decree that the racial isolation in

the Columbus schools was illegal.” (Penick, App. 46). Petitioners’

actual defense was that they did not have knowledge of any prac-

tices by the Cleveland or Columbus school districts which were

regarded as unconstitutional at the time.

8 As noted supra, the U.S. District Court in Cleveland had

itself addressed alleged de jure practices of the Cleveland school

district in 1964 and had pronounced them constitutionally accept-

able. Craggett v. Cleveland Board of Education, supra. The same

practices (constructing schools in racially isolated neighborhoods

and assigning children to neighborhood schools) were deemed by

the same District Court in 1976 to be acts of de jure segregation.

The Court of Appeals’ test focuses on the State Board’s

actual or constructive knowledge of local actions which

have been found unconstitutional. It fails to square with

the fundamental principle that a school board must appear

to have bee motivated by an “intentionally segregative

policy” before it may be deemed to be in violation of the

Equal Protection Clause.

CONCLUSION

For the foregoing reasons a writ of certiorari should

issue to review the judgments and opinions of the Court

of Appeals for the Sixth Circuit.

Respectfully submitted,

Mark Patrick O'NEILL

Weston Hurp FALLon Pats_ey & HOWLEY

2500 Terminal Tower

Cleveland, Ohio 44113

(216) 241-6602

Counsel for Petitioners

Of Counsel:

Tuomas P. MICHAEL

ALEXANDER EBINGER FisCHER LAWRENCE

& McALISTER

1120 Huntington Bank Building

17 S. High Street

Columbus, Ohio 43215

(614) 221-6345

January 15, 1982

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

GARY L. PENICK, et al.,

Plaintiffs

Vv.

COLUMBUS BOARD OF + Case No. C-2-73-248

EDUCATION, et al.

Defendants ,

OPINION AND ORDER

Introduction

In an earlier opinion in this case, this Court concluded

that the Ohio State Board of Education and the Ohio

Superintendent of Public Instruction — the State defend-

ants —in addition to the Columbus defendants violated

the constitutional rights of certain Columbus school chil-

dren. Penick vy. Columbus Board of Education, 429 F.

Supp. 229 (S$.D. Ohio 1977). That conclusion was ground-

ed, for the most part, on the belief that the State defen-

dants failed to act when action was required. I wrote:

The failure of these State defendants to act, with

full knowledge of the results of such failure, provides

a factual basis for the inference that they intended to

accept the Columbus defendants’ acts, and thus

shared their intent to segregate in violation of a con-

stitutional duty to do otherwise.

Upon appellate review, the United States Court of

Appeals for the Sixth Circuit, although regarding my con-

clusion “as a general finding of intentional support of

segregation by the State Board,” returned the case to this

Court, ruling that the question of the liability of the State

defendants should be further considered. Penick v. Colum-

bus Board of Education, 583 F.2d 787, 818 (6th Cir. 1978).

The United States Supreme Court, in reviewing this

case, concisely summarized this Court's findings and con-

clusions against the Columbus defendants, as follows:

Third, the District Court not only found that

the[Columbus School] Board had breached its con-

stitutional duty by failing effectively to eliminate the

continuing consequences of its intentional systemwide

segregation in 1954, but also found that in the inter-

vening years there had been a series of Board actions

and practices that could not “reasonably be explained

without reference to racial concerns,” id., at 241, and

that “intentionally aggravated, rather than allevi-

ated,” racial separation in the schools. App. to Pet.

for Cert. 94. These matters included the general

practice of assigning black teachers only to those

schools with substantial black student populations, a

practice that was terminated only in 1974 as the

result of a conciliation agreement with the Ohio Civil

Rights Commission; the intentionally segregative use

of optional attendance zones, discontiguous attend-

ance areas, and boundary changes; and the selection

of sites for new school construction that had the

foreseeable and anticipated effect of maintaining the

racial separation of the schools. The court generally

noted that “[slince the 1954 Brown decision, the

Columbus defendants or their predecessors were ade-

quately put on notice of the fact that action was

required to correct and to prevent the increase in”

segregation, yet failed to heed their duty to alleviate

racial separation in the schools. 429 F. Supp., at 255.

Columbus Board of Education vy. Penick, 443 U.S. 449,

461-63 (1979) (footnotes omitted).

The question for this Court to decide on remand is

whether the State defendants have intentionally acted or

failed to act thereby causing systemwide school segrega-

tion in the Columbus School District. This question re-

quires inquiry into the relationship, if any, of the State

defendants to the discriminatory practices of the Colum-

bus defendants, noted above, such as the general assign-

ment of black teachers only to those schools with sub-

stantial black student populations; the intentionally segre-

gative use of optional attendance zones, discontiguous

attendance areas and boundary changes; the selection of

sites for new school construction that had the foreseeable

and anticipated effect of maintaining racial separation;

the failure to heed the duty to alleviate continuing con-

sequences of intentional systemwide segregation in the

schools after adequate notice that action was required;

and other intentional acts or omissions. Part of the Court's

task on remand, therefore, is to review the facts and arrive

at conclusions concerning the involvement, if any, of the

State defendants in these acts or omissions. In determin-

ing this question, it is critical to determine just how much

involvement by the State is needed to establish liability.

In this connection, the Court of Appeals set forth certain

guidelines to help in this determination. The Court of

Appeals stated:

While we believe that what we have quoted from

the District Judge’s opinion must be regarded as a

a finding of intentional aap of segregation

y the State Board, it may well be argued that the

Dayton opinion requires more detailed findings of

fact pertaining to (1) the State Board’s knowledge

(if any) of the Columbus Board's intentional segre-

gative practices, (2) the State Board’s failure to pro-

test or restrain them by withholding funds, (3) the

State Board's continuance of support in the face of

such knowledge, (4) the motivation of the State Board

in failing to investigate the reasons for de facto segre-

gation, and (5) the effect of findings, if any, under

(1), (2), (3) and (4) above as suggested in Dayton,

supra, [433 U.S.] at 420....

Penick v. Columbus Board of Education, 583 F.2d 787,

818 (6th Cir. 1978).

The Court of Appeals suggested the taking of addi-

tional testimony concerning the factual issues. This has

been done.

Plaintiffs cite Ex parte Virginia, 100 U.S. 339 (18860)

and Cooper v. Aaron, 358 U.S. 1 (1958) in support of their

contention that the State of Ohio, although not a party

to this action, is nevertheless liable for the acts of its polit-

ical subdivisions. Thus, they say, the State of Ohio is

before the Court in the person of parties who have the

power to provide a remedy, and whose predecessors have

caused the wrong.

Certainly, insofar as the contention speaks to the

necessity of having the state or other of its divisions as

parties before the Court for the purpose of assuring that

the constitutional violations found against the Columbus

defendants are remedied, the Court sees merit in the posi-

tion. To date, however, the Court has not found it neces-

sary to add parties for that purpose. To the extent that the

argument calls for a conclusion of constitutional violations

on the part of the State of Ohio or any of the State defend-

ants without a finding that they or either of them have

acted or failed to act with intent to cause or maintain un-

lawful segregation in the Columbus schools, it must be

rejected. To hold otherwise would be contrary to the

direction the Court of Appeals has suggested this Court

follow on remand.

There is no hasis for a theory of derivative or indirect

liability. See Rizzo v. Goode, 423 U.S. 362 (1976); Village

of Arlington Heights v. Metropolitan Housing Develop-

ment Corp., 429 U.S. 252 (1977); Washington v. Davis,

426 U.S. 229 (1976); United States v. Board of School

Commissioners of City of Indianapolis, 573 F.2d 400 (7th

Cir. 1978). As the Supreme Court stated in Monell v.

New York City Department of Social Services, 436 U.S.

658, 694, n.58, “[b]y our decision in Rizzo v. Goode, 423

U.S. 362 (1976) we would appear to have decided that

the mere right to control without any control or direction

to supervise is not enough to support § 1983 liability.”

If, on the other hand, a superior fails to perform an

explicit statutory duty and constitutional injury occurs,

liability may attach. In Johnson v. Duffy, 588 F.2d 740,

743-44 (9th Cir. 1978), Judge Hufstedler stated as follows:

Section 1983 provides, in pertinent part, that

“[e]very person who, under color of any statute of

any state . . ., subjects, or causes to be odinied, any

citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Con-

stitution and co shall be liable to the party injured

...” (42 U.S.C. § 1983). A person “subjects” another

to the deprivation of a constitutional right, within

the meaning of section 1983, if he does an affirmative

act, participates in another's affirmative acts, or omits

to perform an act which he is legally required to do

that causes the deprivation of which complaint is

made. (Sims v. Adams (5th Cir. 1976) 537 F.2d 829. )

Moreover, personal participation is not the only predi-

cate for section 1983 liability. Anyone who “causes”

any citizen to be subjected to a constitutional depriva-

tion is also liable.

The State defendants can be held liable if, through

custom or practice, unlawful acts of subordinates are in-

tentially condoned by inaction when a foreseeable con-

sequence of such inaction is an intrusion on constitutional

rights and the inaction is a proximate cause of the injustice.

As noted in an earlier opinion in this case, there is no

requirement that the defendants be shown to have acted

with racial animus.

In remanding the case for further proceedings, the

Court of Appeals remarked:

The record does not show an act on the part of

the State Board which required the Columbus Board

to pursue the segregative policies which the District

Judge and this Court have found. It also does not

show any action that the State Roard took affirma-

tively to desegregate the Columbus schools or even

to use its statutory powers to investigate and make

findings as to whether the Columbus schools were

being operated within the law.

Penick vy. Columbus Board of Education, supra, 583 F.2d

at 818.

This description of the state of the record remains

correct even after the taking of additional evidence on

remand. There is no evidence that the State Board re-

quired the violations. On the other hand there certainly is

no evidence that the State Board took affirmative action

to remedy the segregation or used its statutory powers to

investigate. What the record indicates is a “studied indif-

ference” entertained by State Board officials which can be

reasonably said to have had the foreseeable effect of per-

petuating unlawful practices in Columbus schools. The

Court believes there is sufficient evidence as outlined be-

low to establish liability in the State defendants for the

constitutional deprivation imposed upon the plaintiffs in

this case. The Court's findings in this regard are set forth

below.

Historical Backgrwund

In Village of Arlington Heights v. Metropolitan Hous-

ing Development Corp., 429 U.S. 252, 265-66 (1977), the

Supreme Court enumerated evidentiary sources a court

can look to in determining the motivation for official ac-

tion or inaction. Among these are the disproportionate

impact of official action and the historical background in-

cluding sequential events leading to a particular decision,

any departures from normal policy and practice, and legis-

lative or adnuinistrative history through statements of mem-

bers of the decision-making body, minutes of its meetings

or reports. Id., at 266-68.

Accordingly, the Court's factfinding begins with his-

torical facts concerning race and public education in Ohio,

the State Board, the State Superintendent, and their pre-

decessors in some detail.

Ohio became a state in 1803. The 1851 Ohio Con-

stitution specifically denied the right to vote to blacks.

Prior to 1848 black children in Ohio were denied the op-

portunity for public education. By an act of February 24,

1848 (2 Curwen Rev. Stat. 1428), Ohio for the first time

provided for the education of “colored” children, and

directed a tax levy for that purpose upon the property of

“colored” persons. This law was replaced by another identi-

cal in substance by an act of February 10, 1849, (2 Curwen

Rev. Stat. 1465). That law was then “liberalized” by an

act of March 14, 1853, which permitted funding for the

education of black children to derive from the common

school fund, but still provided for separate schools for

“colored” children. Van Camp v. Board of Education of

Logan, 9 Ohio St. 406 (1859).

The Supreme Court of Ohio in 1871 commented on

the issue of separate schools as follows:

It would seem, then, that under the constitution

and laws of this State, the right to classify the youth

of the state for school purposes, on the basis of color,

and to assign them to separate schools for education,

both upon well recognized legal principles and the

repeated adjudications of this court, is too firmly

established to be now judicially disturbed.

State, ex rel. Garnes v. McCann, 21 Ohio St. 198, 208

(1871).

By 1887 the statute empowering local boards of edu-

cation to maintain separate schools was repealed, Act of

February 22, 1887 (84 Ohio L. 34) and the Supreme Court

of Ohio ruled in Board of Education vy. State, 45 Ohio St.

555 (1888), that “separate schools for colored children

have been abolished.”

The Department of Education came into existence in

1837. In 1838 the General Assembly created the office

“Superintendent of Common Schools.” However, this office

was abolished in 1840 and the duties of the office were

lodged with the Secretary of State. In 1853 the office of

“State Commissioner of Common Schools” was created.

The current State Board of Education did not come

into existence until after a 1953 amendment of the Ohio

Constitution permitted the General Assembly to enact

enabling legislation. Ohio Const., Art. VI, § 4; Title 33,

Ohio Revised Code. The State Board had its first meeting

in January 1956. The current State Board and the Super-

intendent of Public Instruction may fairly be identified as

successors to the former State Department of Education

and the series of officials in the Governor's cabinet who

headed the department.

The Superintendent of Public Instruction is appointed

by the Board and acts as its secretary and chief executive

officer. He also heads the Department of Education, which

is the administrative agency through which the Board's

policies are implemented. The powers and responsibilities

of the Superintendent are defined in R.C. 3301.09 through

3301.12.

This Court found earlier that, notwithstanding the

abolition of statutory authority for separate schools for

black children, the Columbus Board continued to establish

new schools that were separate on the basis of race. For

example, in 1909 the Columbus Board of Education cre-

ated the Champion Avenue School as a separate school

for blacks, staffed with black teachers. Penick v. Board of

Education, supra, 429 F. Supp. at 235.

The predecessors of the current State defendants had

ample knowledge of the maintenance and establishment

of separate schools, in Columbus as well as elsewhere in

the state, by virtue of reports required to be made by local

school districts to the state department. According to a

number of records kept by the predecessors of the State

defendants, substantial numbers of black students attended

schools classified as racially separate schools during the

1920's, 1930's, 1940's and 1950's. (State Remand Exhibits

1-6. )

A 1929-31 report from the Ohio Director of Education

to the Governor recited that over 64,000 colored children,

more than 56,000 of them located in cities, were enrolled

in the public schools of Ohio; 1,269 children in Columbus

and 1,318 children in Cleveland were enrolled in “special

schools for colored children” (State Remand Exhibits 1-6).

Subsequent biennial reports are inconsistent as to the ex-

tent of segregation. The 1933-35 report recited that “Ohio

generally does not have separate schools for colored chil-

dren. A few cities maintain separate schools for colored

pupils.” The 1935-37 report states that: “A few cities have

separate schools for colored children in certain sections

where the population is entirely colored.” The 1939-41

report does not reflect the number of colored children but

states:

Ohio has very few separate schools for colored

children. Ten cities reported the existence of separate

schools for colored children. These schools are located

in centers where the population is mostly comprised

of colored people. The following cities reported sepa-

rate schools — Cincinnati, Chillicothe, Columbus,

Dayton, Gallipolis, Lockland, Mansfield (classes

only), Middletown, Portsmouth, Wilmington, and

Xenia. Cincinnati and Columbus have a separate Jun-

ior High School for children in one locality, as well as

elementary schools for colored children.

Similarly during the period 1940-1955, the State De-

partment of Education required statistical reports from

local school districts. Each district was asked to report

the “Number of Separate Schools for Negroes” or, as in

later reports, the “Number of Separate Schools for Colored

Children.” The State Department of Education also re-

auired the submission of statistics concerning the number

of colored teachers and pupils in each school. In 1940

Columbus reported the operation of four separate ele-

mentary schools and one separate junior high for colored

children. In each year from 1944-1950 Columbus reported

five elementary schools and one junior high; in 1952-1954,

four separate elementary schools and one junior high were

reported.

There is no doubt that during the reporting years

mentioned above until 1954, the State defendants’ prede-

cessors were aware that there were a number of “separate

schools” for black children in Ohio and in Columbus.

In that year, the United States Supreme Court is-

sued its decision in Brown v. Board of Education (“Brown

I’), 347 U.S. 483 (1954), declaring unconstitutional the

maintenance of separate schools for black and white chil-

dren. The State Department of Education eliminated ques-

tions pertaining to race from these statistical reports. No

such questions appear on reports until 1968.

The Powers and Duties of the State Board

The powers and duties of the State Board and Super-

intendent are set forth in Chapter 3301 of the Revised

Code of Ohio and are extensive. The State Board is em-

of the system of public education in Ohio. That statute enu-

merates certain powers granted the Board and provides

those powers are “in addition to the powers otherwise im-

posed on the state board under provisions of law.”

Among its enumerated powers, the Board exercises

“policy forming, planning and evaluative functions for the

public schools of the State,” “leadership in the improve-

ment of public education in Ohio,” and “administration

of the educational policies of this state relating to public

schools . . . .” The Board is further required to “prepare

eae

and submit annually to the governor and general assembly

a report on the status, needs and major problems of the

public schools of the state of Ohio, with recommendations

for necessary legislative action.” R.C. 3301.07(G).

The Board must formulate and prescribe minimum

standards for such matters as curriculum, teacher certifi-

cation, instructional materials, school administration “and

such other factors as the board finds necessary,” R.C.

3301.07(D). Since 1966 the State Department of Educa-

tion has made periodic inspections of various school dis-

tricts to review compliance with certain legal minimum

standards. School facilities are on-site inspected. The stu-

dent population, teacher population, and physical plant

are inspected. After the inspection, some local districts

have been ordered to make changes to comply with the

state-promulgated standards. The Board must classify and

charter school districts and individual schools within each

district, and must revoke the charter of any district or

school that fails to meet the prescribed standards. R.C,

3301.16.

Furthermore, the Board administers and supervises

the allocation and distribution of all state and federal funds

for public education, R.C. 3301.07(C). It has the duty to

determine that such funds are distributed and used in

accordance with law. The Board must withhold funds

from school districts or schools that are not in compliance

with legal requirements, unless for “good and sufficient

reason” established to the satisfaction of the State Board

and the State Controlling Board. R.C. 3317.01; former

3317.14.

State Board Policy

During the years following its creation, the State

Board established a policy regarding racial segregation.

Although never reduced to writing, it nevertheless is dis-

cernible. Unlike its activities in other areas, the Board

operated with a few narrow exceptions according to a

“hands-off” policy in the area of school desegregation.

Rather than using its supervisory powers to inquire into

the possibility of law violations and its pursestrings to

enforce compliance with the law, the Board developed

policies and practices which effectively disabled it from

acting at all in this area, thereby avoiding its obligations

in the first instance to ferret out constitutional violations

with the foreseeable result of maintaining and condoning

constitutional violations by local boards. This conclusion

is based on the following findings.

From its inception, the Board was aware of litigation

involving racial segregation elsewhere in Ohio. (Tr. 5758. )'

Litigation in the public schools of Hillsboro, Ohio, had

begun in 1955, and by the time of the Board's first meet-

ing in January 1956 the Court of Appeals for the Sixth

Circuit had rendered its decision (Tr. 5810-11). The Dis-

trict Court had found that black elementary children were

being segregated into one of the schools, and the Court

of Appeals ordered that they be admitted to the other

schools on a nondiscriminatory basis (Tr. 5867). Clemons

v. Board of Education, 228 F.2d 853 (6th Cir. 1956).

This litigation prompted discussion at an early State

Board meeting about the possible existence of illegal racial

segregation elsewhere (Tr. 5759). The minutes reflect

the substance of those discussions. (Exhibit $-13, pp. 1-4.)

Charles Lucas, a board member from the Cleveland area,

referred to “allegations that the State of Ohio still has

remnants of segregated schools.” He therefore moved to

have the State Board establish a committee to obtain its

own set of facts regarding segregated schools in Ohio.

The motion was defeated. Instead the Board adopted a

resolution stating that “the determination of what consti-

tutes unlawful segregation is a matter for judicial decision”

and declaring that “in any case where courts have made

final determination that unlawful segregation exists, this

Bo. -d would then take action in accordance with the

law.” (Tr. 5760-61.) When Board members were discuss-

ing segregation at that time they contemplated discrimi-

nation of the kind condemned in Brown I — the intentional

segregation of pupils on the basis of race (Tr. 5761).

In May 1956, Mr. Lucas presented another resolution

in which the Board would acknowledge that remnants of

racial segregation existed in Ohio, insist that each school

comply with laws requiring equal treatment and declare

that the Board would withhold funds from any district

operating a racially segregated school after September

1956. (Tr. 5817; Exhibit S-13, p. 3.) He did not identify

such districts (Tr. 5761-62; 5812-13; RH Tr. 126), nor

did any other Board member identify any district in which

racial segregation was believed to exist. (Tr. 5672.) This

motion, too, was defeated.

Il.

Board Member Lucas was dissatisfied with this posi-

tion and urged the adoption of a resolution which would

require the Board to seek out districts in which segrega-

tion might be practiced. (Tr. 5759.) However, a majority

of the Board was of the opinion that this was beyond” the

scope of its authority. (Tr. 5760.) After further discussion

it was agreed that an opinion of the Attorney General of

Ohio should be obtained regarding the scope of the

Board’s authority in this area. (Tr. 5763.) Accordingly, at

the June 1956 meeting the Board adopted a resolution

requesting the Attorney General to give the Board an

opinion on four questions concerning the Board's authority

to investigate school districts and withhold funds if they

should be in violation of law (Tr. 5764-66; Exhibit S-13,

p.4).

The July 1956 Attorney General's responsive opinion

stated:

1. The term ‘law’ as used in section 3317.14, Revised

Code [presently codified at Ohio Rev. Code Ann.

§ 3307.01 (Page Supp. 1977)] forbidding the distri-

bution of state funds to school districts which have

not ‘conformed with the law,’ is used in the abstract

sense and embraces the aggregate of all those rules

and principles enforced and sanctioned by the govern-

ing power in the community. Such term embraces the

equal protection provision of the Fourteenth Amend-

ment of the Constitution of the United States under

which the segregation of pupils in schools according

to race is forbidden.

2. The primary responsibility for administering the

laws relating to the distribution of state and federal

funds to the several public school districts is placed

with the state board of education, subject to the ap-

proval of the state controlling board.

3. It is the responsibility of the state board of edu-

cation in the first instance to determine whether a

rticular school district, or the board of education

of such district, ‘has not conformed with the law’ so

as to require the withholding of state funds from such

district. In making such determination the state board

of education should observe the requirements of the

Administrative Procedure Act, Chapter 119, Revised

Code, as to notice, hearing, summoning of witnesses,

presentation of evidence, degree of proof, and pro-

cedural matters generally.

4. Following a determination by the state board of

education that a school district ‘has not conformed

with the law’ so as to require the withholding of state

funds as provided in Section 3317.14, Revised Code,

such board and the controlling board, acting sepa-

rately, may, for ‘good and sufficient reason’ established

to the satisfaction of each board, offer a distribution

of funds to such district notwithstanding such lack of

conformity with the law.

1956 Op. Atty. Gen. Ohio 514, 520-21 (emphasis added).

The Attorney General also state< that in the specific area

of racial segregation, the fund-withholding provision was

mandatory:

It follows, therefore, that in those cases in which

your board finds as a matter of fact that racial segre-

gation exists in a particular school district, the restric-

tive provisions of § 3317.14, Revised Code, must be

deemed to apply.

Id.

After the receipt of the opinion of the Attorney Gen-

eral, it was clear to the State defendants that they had

the primary responsibility and the power to investigate

and determine whether local school districts were unlaw-

fully segregated. Moreover, both State defendants were

aware that there was an affirmative duty to act to elimi-

nate unlawful segregation after becoming aware of its

existence. As noted by the Court of Appeals, the parties

appear to agree that the Attorney General's opinion is law

which controls the State Board. Penick v. Columbus Board

of Education, supra, 583 F.2d at 817.

However, the State Board did not, during the period

from 1956 until at least 1968, use its investigative powers

to uncover the unlawful segregation of public schools in

Columbus or elsewhere.

The rationale for the Board’s failure to investigate

advanced by different board members is twofold. Certain

members contended that a prerequisite to any such action

was the presentation of a complaint to the Board. Others

believed that it was for the courts, and not for the Board,

to make a determination whether segregation was un-

lawful. These contentions are discussed hereinafter.

The Necessity of a Complaint

The Court has heard repeated assertions that the

reason for the Board’s inaction was its lack of knowledge

of illegal segregation and that had such a problem been

brought to its attention, it would have acted swiftly and

promptly to investigate and use its powers to rectify any

such problem.

Thus, a former State Board member, an attorney,

testified that after the receipt of the Attorney General’s

opinion up until he left Board service in December 1959,

no person or organization ever reported to the State

Board or complained about unlawful segregation existing

anywhere in any school district in the State of Ohio. When

asked what the Board would have done in case an instance

of unlawful segregation were ever brought to its attention,

he testified:

There isn’t the slightest doubt in my mind that our

Board would have acted promptly and affirmatively

to work toward discontinuing any such segregation.

I would say that the final, the last remedy, would

have been withholding funds because it would have

been an act directed against a great many innocent

children of al! races, but it would have acted against

the individuals who were running such school dis-

tricts, whether the Board or the Superintendent or

whoever, in order to get them straightened out and

headed in the right direction.

Similarly, another State Board member, also an attorney,

testified as follows:

Q. Suppose, sir, that the State Board became aware

of unlawful activity on the part of a school dis-

trict, now, under the attorney general's opinion

and the statute, which is 3314.17, the State Board

would have the right to withhold funds, but in-

stead of going to the ultimate remedy, what, if

anything, would the State Board attempt to do

to correct the illegality?

A. Well, we would try, I'm sure, to get them to ston

doing whatever illegal thing thev were doing.

(Tr. 5874.)

Dr. Martin Essex, State Superintendent of Public In-

struction for ten years, acknowledged that the State Board

has the capacity to conduct an investigation and make a

finding in the area of racial discrimination or isolation

(Tr. 6027). If unlawful discrimination were discovered,

“then a recommendation would go to the Board relating

to the withholding of funds.” (Tr. 6027.) According to Dr.

Essex, if a responsible parent or group of parents would

allege an unconstitutional separation of races in an Ohio

school district, the Board would “traditionally order an

immediate investigation in the matter.” (Tr. 6020.) There

were two instances, he stated, in which the State Board

was asked to investigate a claim of segregation in Ohio.

These instances occurred in North College Hill and Dayton

and are discussed below.

Dr. Essex testified that during his term in office no

complaint of unlawful segregation in the Columbus schools

had been made; furthermore, he had no reason to con-

sider the Columbus District in violation of the law.

There is considerable difficulty with the claim that a

complaint was a prerequisite to action by the Board. First,

the State defendants did not have any formal complaint

procedure. Apparently, complaints about all sorts of

school-related matters could be and were presented to the

Board by letter, by petition, or in person. Moreover, any

member of the Board can present to the Board a complaint

that has been made to that particular Board member. How-

ever, the Board neither publicized how a complaint should

be lodged with it, nor when and where the Board held its

meetings at which complaints could be presented.

Second, there were, over the years, several instances

which might reasonably be considered complaints, but

which did not prompt action by the Board or its predeces-

sors. The record establishes that as early as 1953, Mr.

Barbee W. Durham, Executive Secretary of the Columbus

NAACP, wrote to Mr. Clyde Hissong, State Superintend-

ent at the time, complaining that the Columbus Board of

Education had never hired Negro teachers on the second-

ary level (Pl. Exhibit 372). There is no evidence that any

action was taken by anyone at the State level on Durham's

letter. Next, Mr. Lucas’ proposals in 1956 were rejected, in

part because he did not have proof of unlawful segrega-

tion in any particular districts or schools. As is shown be-

low, a thorough and extensive complaint submitted in

1971 was not acted upon.’

Finally, it is clear that the Board could act without

first being presented with a complaint. This finding has

support in the testimony of former Superintendent Essex

himself:

The State Board is not restricted to functioning on

complaints. The State Board can initiate action if it

so decides that the facts warrant initiating action or

if there is evidence to that [effect] that would lead to

the conclusion chat there is reason to initiate action.

(Tr. 6136.)

It is noteworthy that the State Board did not wait

for a complaint before it inspected schools to determine

whether they complied with state-prescribed standards in

other areas such as teacher certification. The investigatory

process is routine in the area of determining whether Ohio

school districts are in conformity with certain legislative

and State Board-promulgated minimum standards. The

State defendants, without complaint, probe into standards

concerning school days, pupil promotion, admission of

pupils to schools and programs, graduation requirements,

teacher certification, and others.

The Necessity of a Judicial Determination

The other assertion made by the State defendants is

succinctly stated in their proposed finding of fact, which

is as follows:

Prior to the late 1970's and the Supreme Court's

opinions in Dayton II and Penick, it was the Depart-

ment’s judgment that it had no reasonable alternative

but to wait until it received some notice of an unlaw-

ful condition before launching an investigation into

the reasons for racial imbalance in a school district

(RH, Bowers, 175). The Department believed that

prior to those decisions it could lead and persuade, but

it could not compel the elimination of racial imbal-

ances which were the result of neighborhood concen-

trations. Id., 172-173.

This policy was officially adopted by the Board in its

resolution of March 1956, in which it declared.

WHEREAS the determination of what constitutes un-

lawful segregation is a matter for judicial decision, and

WHEREAS, the State Board of Education has neither

the means nor the right to take action on this question

without final determination by the courts,

BE IT RESOLVED THAT in any case where courts

have made final determination that unlawful segrega-

tion exists, this Board would then take action in

accordance with the law.

(Exhibit $-13; Tr. 5760-61. )

The unsettled-nature-of-law theory has some surface

attraction, but upon examination is not at all convincing.

Surely, at least after 1956, the State defendants knew that

(1) intentional segregation of school children by race

violated the United States Constitution; (2) the State Board

in the first instance had the responsibility to determine

whether a particular school district, or the board of

education “has not conformed with the law.” 1956 Op.

Atty. Gen. Ohio, supra, at 520. The choice of language

made by the then Attorney General is straight-forward

and without ambiguity. Neither the investigation in Day-

ton nor that in North College Hill was hampered by any

unsettled condition of the law. At trial, State Board mem-

ber Wayne Shaffer testified:

I believe that the United States Constitution ought

not to be interpreted by the State Board of Education,

quite honestly. I think it’s being properly done in the

oom, and I believe that that’s where it ought to be

one.

However, when referred to this testimony by Mr. Shaffer,

Dr. Essex testified as follows:

.... Now, my question to you, Dr. Essex, is, is

the State Board able to determine whether a

school district is in violation of the U.S. Con-

stitution?

A. My answer to that question, Mr. O'Neill, is in the

or Sane It is yes. I have not discussed this

matter with Mr. Shaffer since his appearance here.

Hence, I do not know his rationale. I draw the

assumption Mr. Shaffer was referring to an earlier

period in the Board's history when it was first

established in 56 and prior to the establishment

of our office of Urban Education.

Q. Iam not asking you to, you know, interpret what

he was thinking of or what he might —

A. There is no question but what the State Board

has the capacity to conduct an investigation and

make a finding or make a recommendation or

take action in the area of racial discrimination or

isolation.

Q. Now, how does the State Board of Education

make a determination that a school district is in

violation of law?

A. It would be a preliminary exploration to deter-

mine some facts or the conditions that might be

prevailing in that district to see if there is a viola-

tion of law. Then if brought to the attention of

the district, which would be the common practice,

and the district is unable or unwilling to correct

what we perceive to be a violation of discrimina-

tion, then a recommendation would go to the

Board relating to the withholding of funds.

He further related an available state procedure to litigate

whether a violation of law exists.

1968 and After

It was not until 1968 that the State Board began to

use its investigatory powers to determine the extent of

racial isolation in the schools.

In early 1968, Superintendent Essex asked Dr. Robert

O. Greer to come to Columbus to assist the Department

of Education and the State Board in setting up a Division

of Urban Education. (Tr. 5915.) Dr. Greer came to Colum-

bus in February and became head of an Office of Urban

Education, bearing the title of Assistant Superintendent

for Public Instruction. (Tr. 5917.) The Office of Urban

Education was one of the first of its kind in the United

States. Dr. Greer met in Cleveland with an ad hoc com-

mittee of the Ohio Civil Rights Commission and members

of the Urban League, the NAACP, and other concerned

groups. Together they drafted a policy statement that was

adopted at the May meeting of the State Board. This state-

ment provided, in part:

It is the policy of the State Board of Education that,

in programs administered, supervised, or controlled

by the Department of Education, every effort shall be

made to prevent and to eliminate segregation of chil-

dren and staff by reason of race or color.

(Exhibit S-13, p. 136.) As part of the statement, the Board

recommended:

1. Specific effort on the part of all school districts to

find ways to move toward the solution of the

problems of de facto segregation;

2. A periodic ethnic count of pupils and employees

by the schools of the State as a realistic basis for

program planning.

On July 8, 1968, the State Board passed a resolution to

implement the policy statement by conducting a statewide

survey of hiring practices and racial balance in all Ohio

schools. (Exhibit S-13, p. 14.) The survey was conducted

and the findings were computerized, compiled, published

and distributed to the State Board, the Department, and

to the public. Dr. Greer described the survey as follows:

We went out to survey the entire state because

we didn’t know what the situation was. I had to tell

myself or find out for myself what is the situations in

the urban centers in Ohio? So we used 300 schools,

high schools, junior high schools and elementaries,

surveyed them intensely, a full evaluation with ele-

mentary secondary personnel. We employed ten spec-

ialists to go along with these tearmns who were no

longer in education, men and women, and we went

through the districts and took them apart.

We added a survey on urban problems. We went

into the issues of how the children are placed. How

are they placed in regular classes and special classes?

Are there vocational educational offerings? Is there

funding for disadvantaged students? Do you have any-

one who knows how to handle curriculum develop-

ment? Are your teachers prepared to teach all kinds

of children? These kinds of things we did.

This survey has been conducted annually (Tr. 6080). The

first complete report was published in June 1970. It clearly

revealed the racial imbalance in the assignment of admin-

istrative and teacher personnel in Columbus. The State

defendants well knew as a result of their own survey that

as late as the 1972-73 school year there were 250 black

elementary teachers, representing 63.3% of all the black

elementary teachers in the system, assigned to schools in

which the students body was 80-100% black. In the same

year, 34 elementary schools, all of which contained 80-

100% white student bodies, had no black teachers as-

signed to them. (T. 6004.) See Penick v. Columbus Board

of Education, supra, 429 F. Supp. at 238.

This matter was the subject of a 1974 conciliation

agreement with the Ohio Civil Rights Commission after a

complaint had been filed by the Columbus Area Civil

Rights Council and after Dr. Connell had called the prac-

tice to the attention of a high state department official in

1971. This form of selection of assignments on a racial

basis was obviously intentional.

The survey identified Columbus as having persistent

problems of racial isolation, a condition which continued

at the time of trial in June 1976 (Tr. 5978). The same

result was made known to the Board by virtue of a similar

survey conducted by the Ohio Civil Rights Commission

with the help of Dr. Greer’s office in 1968 (Tr. 5982-84).

The State Department has had repeated contact with

the Columbus district since 1968 through both the Depart-

ment of Urban Education, headed by Dr. Greer, and the

later-established Office of Equal Educational Opportunity,

headed by Mr. Bouldin. The State Department visits

annually those districts most in need of desegregation

assistance, among them Columbus. During these many

contacts, the entire situation in the school district is dis-

cussed and information has been given to Columbus con-

cerning the availability of federal funding to assist in the

development of a desegregation plan. On several occasions,

the State Department was asked by Columbus district staff

to consider whether Columbus faced the possibility of

litigation arising out of the racial isolation of its schools.

(Tr. 5952-55, 5979, 5987.) It was upon the request for

assistance of the Director of Human Relations for the

Columbus Board that Dr. Greer came to the Columbus

District (Tr. 5952). Columbus District officials made spe-

cific requests for information to develop means to eliminate

its segregated schools, and in return many of the desegre-

gation devices and techniques available and used elsewhere

were presented to them. As stated by Dr. Greer:

... we went over these figures as they were sub-

mitted and informed the principals and the adminis-

trators at central office that a problem did seem to

exist. All we could tell them was that they did have

racial impaction. We couldn't define it as being one

kind of segregation or another for the simple reason

that there were buildings that were at that time com-

pletely integrated.

(Tr. 5952-53.) The Columbus officials were, however,

advised by Dr. Greer’s office that the open enrollment

plans which they were formulating would be constitu-

tionally deficient, because of the extent of racial impac-

tion and isolation.

Although these personal contacts and discussions oc-

curred steadily from 1968 through 1975, at no time did the

State Department or the State Board initiate any investiga-

tion into the causes of the segregation admittedly existing

in Columbus.

Although the Board offered “technical assistance” to

the District concerning school desegregation, it never used

its powers to enforce compliance with the Constitution.

Dr. Greer attributed this to a lack of power to do so:

Q. Did you ever demand, insist, that Columbus use

the integrative techniques you suggested?

A. Oh, no, no.

Q. And why not?

Demand on what basis? You can demand all you

want to without — without the power of final

authority, and all you do is offend. You can’t get

anyplace by demanding without the clout to follow

up the demand.

(Tr. 5956-57. )

The Court finds the testimony of State Board member

Wayne Shaffer accurately reflects an attitude of a majority

of the State Board from its organization in 1956 until this

lawsuit was filed:

Q. All right. Why, Mr. Shaffer, hasn’t the State Board

demanded that Columbus try some specific remedy

for the racial concentrations that exist in some

parts of a district such as boundary line changes or

pairing or clustering of schools? Why haven't they

asked to try some specific device respecting the

assignment of children to schools?

A. I don’t think we have any authority with respect

to the assignment of pupils, and to request or de-

mand or ask, whatever your term is, that they do

something over which we have absolutely no au-

thority, it seems to me would be a vain act on our

part, not likely to produce any results, and might

even be counter-productive.

Q. Does the State Board require the Department to

recommend and to assist and to advise districts

with respect to techniques and devices that might

be used to reduce racial isolation?

A. Yes, I think that — that is the case.

Q. You advise and suggest, but you do not demand;

is that it?

A. Correct.

(Tr. 5874-5876. )

In fact, the State Board knew by virtue of the 1956

Attorney General's opinion that it had the authority to

investigate for non-conformity with the law and recom-

mend a withholding of funds in the event they found such

violations. The Board did not even consider using the

sanction of fund withholding until 1978; yet the Board's

power to use it remained unchanged over the years (RH

Tr. 24). Similarly, the Board has vigorously used its powers

to revoke school or district charters over the relevant period

for non-compliance with minimum standards. (C. Tr. 2309-

23.) Yet this power was never exercised to facilitate the

dismantling of segregated systems.

The Court concludes that although there were avail-

able procedures for the discovery of unlawful segregation

in Ohio, and the Board had the authority to remedy it,

there was great reluctance to self-initiate any inquiry, and

even more reluctance to exercise its power by withholding

funding or using other available means as sanctions for a

local district’s maintenance of unconstitutional racial segre-

gation.

The Office of Urban Education regularly published a

“Mini Journal.” It presented court decisions and other laws,

and articles by desegregation specialists. The Office also

published a “Maxi Journal.” Volume II for June 1970 con-

tains a “complete racial and educational survey of the

impaction of students and staff and non-professional staff

with a breakdown of percentages run by county, by dis-

trict, by state.” (Tr. 5937.)

The Department maintained a desegregation library

and conducted workshops and seminars. The Office se-

cure’) $300,000 worth of operational funds for the Kent

State Desegregation Center to meet with districts across

the state, to discuss the issues of desegregaion, why it

should be done and how it could be done. (Tr. 5933.)

Desegregation Centers were also established at both Cen-

tral State and Ohio State Universities.

In sum, the officials at the State Department of Edu-

cation appear to have been as knowledgeable as any agency

in the United States on the subject of segregation in public

schools. Any assertion that the State defendants believed

everything in Columbus was proper since they believed

schools were being built in the neighborhood where growth

occurred is a meritless over-simplification in light of the

facts of this case.

In the Spring of 1971, Dr. Kenneth Connell conferred

with Robert Greer, Arthur Bouldin, and representatives of

the United States Office of Civil Rights and the Columbus

Area Civil Rights Council. Dr. Connell, a consulting psy-

chologist, had been an active member of the Northwest

(Columbus) Area Council for Human Relations and the

Columbus Area Civil Rights Council for several years.

Dr. Connell presented to Dr. Greer a 60-page docu-

ment prepared by the Northwest Area Council relating to

proposed litigation over the segregation of staff and stu-

dents in Columbus schools (Tr. 6248). He described the

document as follows:

It . . . related to the non-response of the Columbus

Public Schools to a proposed center for quality inte-

grated education. It included review of findings of the

select committee on equal educational opportunity.

It included a variety of specific statistical information

relating to the Urban League report, the OSU Ad-

visory Commission report, staff segregation as re-

ported in those reports, and a separate analysis I did.

It further provided a summary of certain build-

wy Lage ond their segregative effects in the period,

I believe, 1969 through ‘71, so that it substantially

set forth the basic case as we saw it at that time for

a finding of unlawful segregation.

(Tr. 6250-51. )

Dr. Connell further testified: 2

Q. Did you bring the details of this matter directly

to the personal attention of Dr. Greer, or is it just

something you left with him?

A. No, we discussed the matter in considerable detail

with respect to what the posture of HEW might

be, what kinds of factors they looked at in estab-

lishing whether the district was in compliance. We

talked with Dr. Greer about the role of the State

Department of Education in this matter.

He subsequently did provide some materials, but

provided no indication that they had a standard

investigation process or that they could be of any

substantial help with this matter, whether or not

it went to litigation.

Dr. Connell stated that they met with Dr. Greer and

persons on his staff “to determine what might be available

through the State Department and HEW, and we did not

know what could be available.” (Tr. 6258.) “The purpose

of the meeting was to determine what assistance could be

rendered by the State Department of Education and HEW

in remedying the segregation that we observed in the

Columbus Public Schools.” (Tr. 6260.) Connell described

the meeting as cordial but not productive of any results.

He stated:

When the bond issue failed in the spring of that year,

that was when the Columbus Area Civil Rights Coun-

cil and the Northwest Area Council turned to the

Ohio Civil Rights Commission. We were never ad-

vised to do so by the Department of Education, Dr.

Greer, but we turned there because we felt that there

was an opportunity for some partial remedy at that

time.

Discussion

As mentioned hereinabove, the Court of Appeals pro-

vided this Court with five suggested areas of inquiry. The

Court will now address them. Several areas are combined

for discussion.

The State Board's Knowledge of Intentional Segregative

Practices, Failure to Protest or Restrain them by With-

holding Funds and Continuance of Support in the Face

of Such Knowledge

The history of public education in Ohio advises all

concerned that at one time in Columbus, as well as in other

cities, separate schools were intentionally maintained for

colored children. Columbus last reportec. separate schools

in the annual statistical report to the Department of Edu-

cation for 1953-54. The “separate schools” category was

deleted after the decision in Brown I, supra. When that

category was first made a part of the reporting require-

ments, a fair inference may be that it requested data con-

cerning intentionally segregated schools for colored chil-

dren. This inference fits with the sorrowful history of the

creation of such schools. However, there is no direct docu-

mentary evidence that the schools Columbus listed under

that heading in 1954 were separate as a result of segrega-

tive design. The Court notes that in its prior opinion, it

reached that conclusion regarding some Columbus schools,

but only with further specific facts which may not have

been available to the State defendants.

Given the bare information that Columbus had a num-

ber of separate schools for colored children in 1954 does

not justify the inference that such schools were intention-

ally segregated or never dismantled after having been so

segregated. This is so because laws requiring separate

schools for colored children were eliminated years before.

There simply must be a stronger factual basis for drawing

the inference plaintiffs would have the Court draw. The

reporting data are significant, however, as mentioned here-

inafter.

The Court does find that the State Board did, at least

upon learning the results of their own 1968 survey, have

knowledge of one of the intentional segregative practices

of the Columbus defendants. The State Board was aware

of the general practice of assigning black teachers only to

those schools with substantial black student populations,

found by this Court in its 1977 opinion and noted by the

Supreme Court on its review. The Board, however, con-

tinued to fund and otherwise support the Columbus Dis-

trict in the face of such knowledge. They did not protest

the practice; instead, it persisted until resolved by a con-

sent decree between the Columbus defendants and the

Ohio Civil Rights Commission in July 1974. See Penick v.

Columbus Board of Education, supra, 429 F. Supp. at 238.

Motivation of the State Board in Failing to Investigate the

Reasons for de facto Segregation (Racial Impaction)

The State Board can be charged with knowledge that

de jure segregation of school children by race was imposed

by state law until 1887. It can be charged with knowledge,

by virtue of the reporting requirements of its predecessors,

that separate schools for black and white children con-

tinued to be operated until 1954 in Columbus and else-

where in Ohio. Their own files contain documents identi-

fying separate schools in Columbus. See also Penick v.

Columbus Board of Education, supra, 429 F. Supp. 234-36.

It further knew, by virtue of the Brown I, supra, opinion of

the same year, that de jure segregation was unlawful and

that a duty was lodged with the proper authorities to

eliminate the racial isolation caused by unconstitutional

acts. Brown II, 349 U.S. 294 (1955).

From its inception, the State Board had more than a

“mere right to control” the activities of local school boards;

it was explicitly given authority to supervise public educa-

tion by the statute which created it. R.C. 3301.07. Its

predecessor failed to exercise such supervision in 1953

when asked to do so by letter from Mr. Durham, The Board

itself refused to inquire into allegations by one of its own

members, Mr. Lucas, in 1956, that “remnants” of segre-

gated schools persisted.

The State Board’s supervisory obligation was spelled

out clearly by the Ohio Attorney General's opinion in 1956.

Thereafter, any contention that the State Board did not

bear the primary, statutory duty, in the first instance, to

investigate the existence of segregation in the public

schools, to ascertain its causes and to use its powers to

eradicate it, “root and branch,” is without justification.

Instead, the State Board adopted a “hands-off, let

someone else do it” approach which amounted to no ap-

proach at all. This neutrality overrode the Board's clearly

prescribed mandatory affirmative duty as opined by the

then Attorney General. Rather than disavow or contest the

substance of the legally described solemn obligation of the

Board, for a number of years the Board simply chose to

ignore it. Although there is no evidence that the Board did

not recognize and appreciate the correctness of the opin-

ion’s prescription, since its creation the Board has, in effect,

related that it would not do its duty unless someone in-

formed it that its duty needed to be done.

The Board avoided its duty of investigating school

segregation by pursuing an unwritten policy of requiring

“complaints” rather than initiating its own investigation.

This policy of requiring complaints was curiously unique.

In no other area of its supervision did the Board require

complaints prior to investigation.

The effectiveness of the complaint system in prevent-

ing investigations was compounded by the Board's failure

to tell the public that the complaint system was in fact

being used. The Board was thus both unwilling to investi-

gate by its own initiative and apparently unwilling to tell

the public how to trigger an investigation. The result was

almost total insulation. See footnote 2, supra. Even after

the formation of the Office of Urban Education with its

substantial assembly of information concerning the Colum-

bus schools and expertise in modern school segregation

matters, the State Board continued to take the position

that there was no reasonable cause to take a look to deter-

mine whether Columbus had a problem with the United

States Constitution.

There is, indeed, no evidence that the State defend-

ants made any effort to self-initiate any investigation into

the cause of the racial impaction of any urban school

district in Ohio. See Reed v. Rhodes, Case No. C73-1300

‘N.D. Ohio September 23, 1980); Brinkman v. Gilligan,

503 F.2d 684 (1974). While the knowledge that the Court

has found on the part of the Board, other than that relating

to faculty assignments, does not rise to the level of actual

knowledge of intentional segregative practices as described

by the Court of Appeals, the Court does find that it rises

to such a level that would cause a reasonable person,

charged with the same legal duties as are the State defend-

ants, to initiate an investigation into the causes of segrega-

tion in the Columbus public schools. This was never done.

Given the contents of the files of these defendants, and

the vast amount of their admitted expertise in desegrega-

tion matters, any presumption that all of the racial im-

balance in Columbus resulted from racially neutral causes

is unreasonable. Reason dictates that there was ample

cause to inquire whether Columbus was in conformance

with the requirements of the Constitution.

In the Court’s view the failure to investigate was an-

other manifestation of the enduring policy of the State

Board to let some other governmental agency handle this

emotionally charged issue. This was in clear derogation of

the Board’s obligation under the law.

Effect of the Above Findings under Dayton I

(Incremental Segregative Effect)

In an earlier opinion this Court discussed a reciprocal

effect between the color of the school and the color of the

neighborhood it serves.

The racial composition of a neighborhood tends

to influence the racial identity of a school as white or

black. This identification comes in the form of student,

teacher, and administrative assignments as well as the

location and attendance boundaries of the school.

When the number of black pupils increases, the num-

ber of black teachers increases, and a black principal

is assigned; the school then becomes less attractive for

white students to attend. The racial identification of

the school in turn tends to maintain the neighbor-

hood’s racial identity, or even promote it by hastening

the movement in a racial transition area. White fam-

ilies tend to cease migrating into such a neighborhood,

and tend to move out of the area.

Penick, supra, 429 F. Supp. at 259.

After 1968 the data collected by the State defendants

clearly revealed the segregated fashion in which teachers

and administrators were intentionally assigned. It is rea-

sonable to infer that the vast amount of information on

school desegregation accumulated by the Office of Urban

Education included comment on the reciprocal effect of

the assignment of teachers and staff on a racially segre-

gated basis. Surely, the logical result of biased assignment

of personnel was well known to the experts at the State

Department of Education. The State defendants again

failed to act to correct this intentional practice of the

Columbus defendants which directly contributed to the

racial imbalance in the schools.

In addition, the Court has found the State defendants

were aware of circumstances concerning the Columbus

school system that are sufficient to trigger their duty to in-

vestigate to determine whether the system was unlawfully

segregated. Although there is no evidence of racial animus

on the part of these defendants, the evidence certainly

supports the inference that the State defendants reasonably

should have known that in all probability Columbus had

a substantial problem of unlawful racial segregation. The

Court is convinced that the failure to investigate was an

intentional failure to perform a duty required by law and

that the only logical reason for such a failure is intentional

condonation of the unlawful status quo. This failure in

turn amounts to a proximate cause of plaintiffs’ deprivation.

The Columbus defendants had nothing to fear from the

persons charged by the State of Ohio with the first line

responsibility of assuring all Ohio's public school children

lawful treatment. So, the unconstitutional state of affairs

continued after the formation of the State Board, after it

knew that historically Ohio had first required and later

permitted separate schools for colored children, after re-

ceipt of the 1956 Attorney General’s opinion, after the

receipt of the statistics of the 1968 racial study, after the

establishment of an Office of Urban Education, after notice

of where schools were built in growing Columbus, after

Dr. Connell’s visit, after the District Court’s determination

in Dayton v. Brinkman, supra, and long after school deseg-

regation had become an agonizing issue in urban America.

It cannot be said that the State defendants looked the other

way while constitutional rights were thwarted; it can be

said, however, that they closed their eyes knowing the law

required them open.

If the State defendants had acted within a reasonable

time after the receipt of the 1956 Attorney General’s opin-

ion, even working at a slow pace, the Columbus schools

could have been directed towards and have achieved an

appropriate remedy long before this lawsuit was filed.

Failure to have done so causes this Court to conclude that

the State defendants equally share with the Columbus

defendants the responsibility for the system-wide unlawful

segregation in the Columbus School District.

ORDER

It is ORDERED that the State Board of Education

and the State Superintendent of Public Instruction, their

officers, agents, and employees, and all other persons in

active concert and participation with them be, and they

hereby are, permanently enjoined from discriminating on

the basis of race in the operation of the Columbus Public

Schools, and from creating, promoting, or maintaining in-

tentional racial segregation in any Columbus school facil-

ities.

It is further ORDERED that the State defendants

share equally with the Columbus defendants all expenses

incurred or which will be incurred in remedying the un-

constitutional racial segregation found in this case in the

Columbus School District.

Rosert M. DuNCAN

Robert M. Duncan, Judge

United States District Court

"References to the transcript of the original trial in

this case are identified as “Tr.”; those to the transcript of

the hearing on remand are identified as “RH Tr.”; and

those to the portions of the Cleveland trial transcript ad-

mitted into evidence in this case at the hearing on remand

are identified as “C Tr.”.

*The Board did take action in two other school dis-

tricts in Ohio. Thus in 1964, after an appearance before

the State Board by an NAACP representative who com-

plained of unlawful segregation at the North College Hill

District, the State Board ordered by resolution that an

investigation ensue and the District resolved the problem

by closing a school. (Tr. 6021.)

In the situation involving Dayton, in 1970 the Dayton

City School District adopted a resolution stating that it

believed that prior practices of its board had unlawfully

created segregation and requesting State Board assistance

in correcting the situation. Dr. Essex testified that “a com-

mittee appeared before the State Board and requested

assistance from the State Board in resolving what their

Board had declared to be and their Superintendent had

declared to be violations of — or discriminatory actions

against minority persons in the operation of the schools”

(Tr. 6022).

The State Board wrote to the Dayton Board:

On June 7, 1971, the Ohio State Department of

Education presented a series of recommendations to

the Dayton Board on how to achieve constitutionally

required desegregation. In its letter conveying the

recommendations, a State Department of Education

report stated:

“As the resolution of April 29, 1971 (of the Day-

ton Board), admitted ‘the Dayton Board of Education

recognizes that unequal educational opportunities for

minority students now exists.’ Inequality of such op-

portunities, for minority and majority students, has

characterized the Dayton galls school system

throughout its history.

“Since the Board, as an agency of state govern-

ment, has created the inequality which offends the

Constitution, the Ohio State Department of Education

must advise that the Dayton Board of Education

clearly has an affirmative duty to comply with the

Constitution; that is, as the Supreme Court has stated,

‘to eliminate from the public schools all vestiges of

state-imposed segregation.’ ”

After Board reference to the Superintendent for investiga-

tion, $8,000 was allocated to employ persons “from over

the country who were knowledgeable in the area of segre-

gation, integration, to make a scholarly investigation of

the condition, make a report,” (Tr. 6023). In addition to

that, six or seven staff members were assigned to assist.

The final allocation for the investigation personnel was

about $43,000.

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

GARY L. PENICK, et al., 7

Plaintiffs

Vv.

» Case No. C-2-73-248

COLUMBUS BOARD OF

EDUCATION, et al.,

Defendants }

JUDGMENT

This action came on for consideration before the

Court, The Honorable Robert M. Duncan United States

District Judge, presiding. The issues having been duly

considered and a decision having been duly rendered,

IT IS ORDERED AND ADJUDGED THAT: the

State Board of Education and the State Superintendent

of Public Instruction, their officers, agents, and employees,

and all other persons in active concert and participation

with them be, and they hereby are, permanently enjoined

from discriminating on the basis of race in the operation

of the Columbus Public Schools, and from creating, pro-

moting, or maintaining intentional racial segregation in

any Columbus School facilities.

It is further ORDERED that the State defendants

share equally with the Columbus defendants all expenses

incurred or which will be incurred in remedying the un-

constitutional racial segregation found in this case in the

Columbus School District.

Dated at Columbus, Ohio this 8th day of January, 1981.

Joun D. Lyter, Clerk

By:

Deputy Clerk

81-3072, 3102

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GARY L. PENICK, et al. )

Plaintiffs-Appellees,

Cross-Appellants,

vs.

COLUMBUS BOARD OF APPEAL from the

EDUCATION, et al. ; United States District

Defendants,| Court for the South-

and ‘| ern District of Ohio.

OHIO STATE BOARD OF

EDUCATION, et al.

Defendants-Appellants,

Cross-Appellees.

Decided and Filed October 21, 1981.

Before: Epwarps, Chief Judge, Livery and ENGEL,

Circuit Judges.

Edwards, Chief Judge. This is the Columbus de-

segregation case’ which has been returned to this court

after our remand to the District Court for reconsideration

and new findings of fact concerning the question of lia-

bility for unconstitutional segregation on the part of

defendants-appellants Ohio State Board of Education and

Ohio Superintendent of Public Instruction.

‘Penick v. Columbus Board of Education, 429 F.Supp. 229

(S.D. Ohio 1977), affd in part, vacated and remanded as to state

defendants, 583 F.2d 787 (6th Cir. 1978), aff'd, 443 U.S. 449 (1979),

opinion on remand to be published, No. C-2-73-248 (S.D. Ohio,

Jan. 8, 1981).

Our opinion affirmed the District Judge’s findings of

intentional segregation and liability against the local Board

of Education. The District Judge had also found the State

Board jointly liable for such intentional segregation. Our

remand of this issue reads as follows:

This record does not show any act on the part of

the State Board which required the Columbus Board

to pursue the segregative policies which the District

Judge and this court have found. It also does not

show any action that the State Board took affirma-

tively to desegregate the Columbus schools or even

to use its statutory powers to investigate and make

findings as to whether the Columbus schools were

being operated within the law.

The State Board’s primary contention on this

appeal is that it had no prior knowledge that the segre-

gation existing in the Columbus schools was unlaw

since it did not know that said segregation was de-

rived from intentionally segregative policies on the

part of the Columbus School Board. The State Board

also argues that the District Judge did not make

findings concerning the “incremental segregative

effect” (Dayton, supra, 433 U.S. at 420, 97 S.Ct. 2766)

of its actions upon the totality of segregation in

Columbus.

While we believe that what we have quoted from

the District Judge’s opinion must be regarded as a

general finding of intentional su»port of segregation

by the State Board, it may well be argued that the

Dayton opinion requires more detailed findings of fact

pertaining to 1) the State Board’s knowledge (if any)

of the Columbus Board's intentional segregative prac-

tices, 2) the State Board's failure to protest or restrain

them by withholding funds, 3) the State Board's

continuance of support in the face of such knowledge,

4) the motivation of the State Board in failing to

investigate the reasons for de facto segregation, and

5) the effect of findings if any, under 1, 2, 3 and 4

above, as suggested in Dayton, supra at 420, 97 S.Ct.

2766.

Penick v. Columbus Board of Education, 583 F.2d 787, 818

(6th Cir. 1978).

We had also suggested in our remand that there might

be need for reopening the record on this issue. On recon-

sideration, the District Judge did take additional testimony

on the questions recited above. He thereupon entered

lengthy findings of fact concerning the role which the

State Board of Education and its Superintendent played

in the years after 1954 when, after Brown v. Board of Edu-

cation, 347 U.S. 483, all public school authorities had a

clear duty to end any intentional segregative practices

found in schools for which they were responsible.

The System-Wide Segregative Practices

At the outset, we observe that we do not write on a

blank slate in this case. Following is the summary of the

findings this court made in Penick v. Columbus Board of

Education, 583 F.2d 787 (6th Cir. 1978), as quoted and

approved by Justice White’s majority opinion in Columbus

Board of Education v. Penick, 443 U.S. 449 (1979):

And the Court of Appeals, responding to similar

arguments, said:

“School board policies of systemwide application

necessarily have systemwide impact. 1) The pre-

1954 policy of creating an enclave of five schools

intentionally designed for black students and

known as ‘black’ schools, as found by the District

Judge, clearly had a ‘substantial’ — indeed, a sys-

temwide — impact. 2) The post-1954 failure of

the Columbus Board to desegregate the school

om in spite of many requests and demands to

0 so, of course, had systemwide impact. 3) So,

too, did the Columbus Board’s segregative school

construction and siting policy as we have detailed

it above. 4) So too did its student assignment

policy which, as shown above, produced the large

majority of racially identifiable schools as of the

school year 1975-76. 5) The practice of assign-

ing black teachers and administrators only or in

large majority to black schools likewise repre-

sented a systemwide policy of segregation. This

policy served until July 1974 to deprive black

students of opportunities for contact with and

learning from white teachers, and conversely to

deprive white students of similar opportunities to

meet, know and learn from black teachers. It also

served as discriminatory, systemwide racial iden-

tification of schools.” 583 F.2d, at 814.

443 U.S. at 466-467.

The District Judge’s findings and conclusions on re-

mand included the following:

State Board Policy

During the years following its creation, the State

Board established a policy regarding racial segrega-

tion. Although never reduced to writing, it neverthe-

less is discernible. Unlike its activities in other areas,

the Board operated with a few narrow exceptions

according to a “hands-off” policy in the area of school

desegregation. Rather than using its supervisory pow-

ers to inquire into the possibility of law violations and

its pursestrings to enforce compliance with the law,

the Board developed policies and practices which

effectively disabled it from acting at all in this area,

thereby avoiding its obligation in the first instance to

ferret out constitutional violations with the foresee-

able result of maintaining and condoning constitu-

tional violations by local boards. This conclusion is

based on the following findings.

From its inception, the Board was aware of litiga-

tion involving racial segregation elsewhere in Ohio. . . .

This litigation prompted discussion at an early

State Board meeting about che possible existence of

illegal racial segregation elsewhere. ...

In fact, the State Board knew by virtue of the

1956 Attorney General's opinion that it had the au-

thority to investigate for non-conformity with the law

and recommend a withholding of funds in the event

they found such violations. The Board did not even

consider using the sanction of fund withholding until

1978; yet the Board’s power to use it remained un-

changed over the years. Similarly, the Board has

vigorously used its powers to revoke school or district

charters over the relevant period for non-compliance

with minimum standards.

Yet this power was never exercised to facilitate

the dismantling of segregated systems.

The Court concludes that although there were

available procedures for the discovery of unlawful

segregation in Ohio, and the Board had the authority

to remedy it, there was great reluctance to self-initiate

any inquiry, and even more reluctance to exercise its

power by withholding funding or using other avail-

able means as sanctions for a local district's mainte-

nance of unconstitutional racial segregation.

In sum, the officials at the State Department of

Education appear to have been as knowledgeable as

any agency in the United States on the subject of

segregation in public schools. Any assertion that the

State defendants believed everything in Columbus was

roper since they believed schools were being built in

the neighborhood where growth occurred is a meritless

over-simplification in light of the facts of this case.

The Court does find that the State Board did, at

least upon learning the results of their own 1968

survey, have knowledge of one of the intentional

segregative practices of the Columbus defendants.

The State Board was aware of the general practice of

assigning black teachers only to those schools with

substantial black student populations, found by this

Court in its 1977 opinion a noted by the Supreme

Court on its review. The Board, however, continued

to fund and otherwise support the Columbus District

in the face of such knowledge. They did not protest

the practice, instead, it persisted until resolved by a

consent decree between the Columbus defendants and

the Ohio Civil Rights Commission in July 1974. See

Penick v. Columbus Board of Education, supra, 429

F. Supp. at 238.

The State Board can be charged with knowledge

that de jure segregation of school children by race was

imposed by state law until 1887.

The State Board’s supervisory obligation was

spelled out clearly by the Ohio Attorney General's

opinion in 1956. Thereafter, any contention that the

State Board did not bear the primary, statutory duty,

in the first instance, to investigate the existence of seg-

regation in the public schools, to ascertain its causes

and to use its powers to eradicate it, “root and

branch,” is without justification.

Instead, the State Board adopted a “hands-off, let

someone else do it” approach which amounted to no

approach at all. This neutrality overrode the Board's

ae prescribed mandatory affirmative duty as

opined by the then Attorney General... .

The Board avoided its duty of investigating school

segregation by pursuing an unwritten policy of re-

quiring “complaints” rather than initiating its own

investigation. This policy of requiring complaints was

curiously unique. In no other area of its supervision

did the Board require “complaints” prior to investiga-

tion.

There is, indeed, no evidence that the State de-

fendants made any effort to self-initiate any investiga-

tion into the cause of the racial impaction of any

urban school district in Ohio. See Reed v. Rhodes.

Case No. C73-1300 (N.D. Ohio, September 23, 1980);

Brinkman v. Gilligan, 503 F.2d 684 (1974). While the

knowledge that the Court has found on the part of the

Board, other than that relating to faculty assignments,

does not rise to the level of actual knowledge of inten-

tional segregation practices as described by the Court

of Appeals, the Court does find that it rises to such a

level that would cause a reasonable person, charged

with the same legal duties as are the State defendants,

to initiate an investigation into the causes of segrega-

oe in the Columbus public schools. This was never

one.

In the Court's view the failure to investigate was

another manifestation of the enduring policy of the

State Board to let some other governmental agency

handle this emotionally-char issue. This was in

clear derogation of the board’s obligation under the

law.

° ° ° °o

If the State defendants had acted within a rea-

sonable time after the receipt of the 1956 Attorney

General’s opinion, even working at a slow pace, the

Columbus schools could have been directed towards

and have achieved an appropriate remedy long before

this lawsuit was filed. Failure to have done so causes

this Court to conclude that the State defendants

equally share with the Columbus defendants the re-

cutie for the system-wide unlawful segregation

in the Columbus School District.

Penick v. Columbus Board of Education, No. C-2-73-248,

slip op. at 8-33 (S.D. Ohio, filed Jan. 6, 1981) (Citations

to trial exhibits omitted. )

We have considered these findings against this record

and accept them as not clearly erroneous.

The “Separate Schools for Colored Children” Reports

This record sheds new light on the state of knowledge

of the State defendants —light which was not available

earlier. In research conducted preparing this case, plaintiffs

found and introduced records showing that for many years

after the abolition of Ohio’s “black laws” which, until 1887,

mandated separated schools for black and white children,

the predecessors of the State defendants had accumulated

statistics upon the operation of “separate schools for col-

ored children,” showing their existence at least through

1954, the year that Brown v. Board of Education, 347 U.S.

483, was decided. As the District Court carefully re-

counted, Penick y. Columbus Board of Education, No. C-2-

73-248, slip op. at 8-9, the State defendants’ predecessors

required local school districts to report to the State Depart-

ment of Education the number of black children attend-

ing schools classified as racially separate. The wording of

this category suggests that it was designed to inform state

educational authorities of how many schools in Ohio were

specifically designated for colored children. According to

records kept by the defendants, substantial numbers of the

state’s black children attended such separate schools. A

1929-31 report listed 1,269 Columbus colored children en-

rolled in “separate schools for colored children.” And re-

ports for the 1920's, 1930's, 1940's and 1950's continued to

list such separate schools, with the Columbus school au-

thorities reporting four such segregated elementary schools

and one junior high school in most of these reports to their

state superiors. This information continued to be sought

until 1955, after Brown found such separate schools unc»n-

stitutional, at which time the State Department of Educa-

tion removed the race-based questions from its reports.*

With such reports in hand, it is strange indeed to find

the State defendants disavowing knowledge of the segre-

gated conditions of the Columbus black school enclave

(consisting, as stated above, of four elementary schools and

*The District Court's complete review of the State records on

this subject is attached as an Appendix.

one junior high school ) as found by the District Court, this

court, and the Supreme Court of the United States in prior

proceedings in this case.

The “No Knowledge-No Power” Defense

The State defendants insisted that they were unaware

of any segregation in schools for which they were ulti-

mately responsible, and that even had they known, they

could not have acted on such knowledge.

It is difficult for this court to believe that these de-

fendants could have been as totally ignorant as they now

claim. Not only had they been informed by answers to

questions they themselves posed (as detailed above), but

segregated schools continued to be established in their own

back yard. As the District Court found, despite the “aboli-

tion of statutory authority for separate schools for black

children, the Columbus Board continued to establish new

schools that were separate on the basis of ace,” creating,

for example, the Champion Avenue School in 1909 as a

separate school for blacks. Penick slip op. at 8. While it is,

of course, true that the State defendants did not have the

District Court's findings before 1977, we take notice that

the State Board of Education and its Superintendent and

staff were and are based in Columbus. They would be un-

able to avoid knowledge of the segregated conditions re-

cited above which were basic facts of life in Columbus.

The principal defense that the State defendants ad-

vance for their failure to act to desegregate the Columbus

schools after 1954 is that they had not been put on notice

by any court decree that the racial isolation in the Colum-

bus schools was illegal. We reject this argument com-

pletely. In 1956, acting on a request of the State defend-

ants’ predecessors [sic], the Attorney General of Ohio

rendered an opinion which spelled out the law of Ohio

concerning race discrimination in Ohio’s schools and the

duty of the State defendants to act to prohibit such uncon-

stitutional and illegal conditions. The Attorney General's

opinion read:

Accordingly, in specific answer to your inquiry, it

is my opinion that:

1. The term “law” as used in Section 3317.14,

Revised Code [presently codified at Ohio Rev. Code

Ann. § 3307.01 (Page Supp. 1977)], forbidding the

distribution of state funds to school districts which

have not “conformed with the law,” is used in the

abstract sense and embraces the aggregate of all those

rules and principles enforced and sanctioned by the

governing power in the community. Such term em-

braces the equal protection provision in the Four-

teenth Amendment of the Constitution of the United

States under which the segregation of pupils in schools

according to race is forbidden.

2. The primary responsibility for administering

the laws relating to the distribution of state and fed-

eral funds to the several public school districts is

placed with the state board of education, subject to

the approval of the state controlling board.

3. It is the responsibility of the state board of

education in the first instance to determine whether a

particular school district, or the board of education of

such district, “has not conformed with the law” so as

to require the withholding of state funds from such

district. In making such determination the state board

of education should observe the requirements of the

Administrative Procedure Act, Chapter 119, Revised

Code, as to notice, hearing, summoning of witnesses,

presentation of evidence, degree of proof, and pro-

cedural maters generally.

4. Following a determination by the state board

of education that a school district “has not conformed

with the law” so as to require the withholding of state

funds as provided in Section 3317.14, Revised Code,

such board and the controlling board, acting separate-

ly, may, for “good and sufficient reason” established

[sic] to the satisfaction of each board, order a distribu-

tion of funds to such district notwithstanding such

lack of conformity with the law.

Respectfully,

C. Wittiam O'NEILL

Attorney General

1956 Op. Atty. Gen. Ohio 514, 520-21.

No instructions could more clearly have defined the de-

fendants’ legal duty to require desegregation where in-

tentional segregation exists.

The defendants argue that a complaint to the State

Board of Education was a prerequisite to action and that

no such complaints came before them. The lack of formal

complaint procedure belies this argument as does the fact

that several complaints which were brought before them

were simply not acted upon. Clearly, the State Board

could and can initiate action if necessary, without any

complaint before it. Penick slip op. at 16-17.

The defendants also argue that the Second Circuit has

established precedent which cuts against state liability in

this case. See Arthur v. Nyquist, 573 F.2d 134 (2nd Cir.),

cert. denied, 439 U.S. 860 (1978). After the Second Circuit

entered strong findings of intentional racial discrimination

against the Buffalo Board of Education, it turned to analy-

sis of similar claims against the New York State Board of

Regents. In relation to the state defendants, the Second

Circuit found:

The record is significantly different with respect

to the state appellants. As early as 1960, the New York

State Board of Regents issued a policy statement

urging desegregation of New York’s public schools.

This expression of intent has been reaffirmed on many

subsequent occasions.

In 1964, parents of Buffalo schoolchildren ap-

pealed to the New York State Commissioner of Edu-

cation, charging that Buffalo had fixed the attendance

zone of a junior high school in such a manner as to

make the student ulation over 90% black. The

Commissioner found t that de facto segregation existed

in Buffalo, and ordered the Board of Education to

submit an integration plan within three months.” The

Commissioner subsequently found this plan inade-

uate, and appointed an Advisory Committee to

evelop a satisfactory program.

The Buffalo Board of Education approved the

proffered program “in principle,” but then submitted

a plan which the Commissioner found “disappointing

and unsatisfactory.” Finally, on a 30, 1968, the

Board submitted a plan which the Commissioner

found acceptable. The Board was then ordered to

submit periodic reports on the implementation of the

program.

This plan, had it been implemented, would likely

have reduced racial segregation in the Buffalo schools,

but the City’s Common Council refused to appropriate

funds to implement the Board’s plan. In — ’

1972, the Commissioner instructed the Board to sub-

mit a new desegregation plan; the Board refused to

submit such a plan. The Commissioner then sent mem-

bers of his staff to Buffalo in order to work with the

Board in designing a desegregation plan. The Com-

missioner'’s staff submitted its recommendations to

the Board in November, 1972, but the Board rejected

the proposals.

Finally, in January, 1975, following recovery from

a heart attack, the Commissioner issued a show cause

order to the Buffalo Board of Education in which he

threatened to exercise his statutory enforcement

powers.

573 F.2d at 145-146.

*3Matter of the Appeal of Yerby Dixon, 4 Ed.Dept.Rep. 115

(1965).

From what we have already said above, it is obvious

that the Ohio Defendants took no such actions in the

Columbus case. Arthur v. Nyquist, supra is not in conflict

with our preceding findings in this case nor with the sum-

mary which follows.

Conclusion

We now turn to the list of findings which were sought

in our remand of this case.

As shown above in this record and as found by the

District Court:

1. The State Board had direct knowledge of the

Columbus Board's intentional schoo! segregative prac-

tices.

2. Under the laws of Ohio, the defendant State

Board of Education and its Superintendent had “the

primary responsibility” for determining whether its

school districts (including the Columbus Board of

Education) “has conformed with the laws.”

3. The State Board never, in relation to Colum-

bus, discharged its legal “responsibility . . . to deter-

mine whether a particular school district or the board

of education of such district ‘has not conformed to the

law’ so as to require the withholding of state funds

from such districts.”

4. To the contrary the record shows that the

State Board continued to support the Columbus

Board's activities including (among others) financing

racially segregated teaching staffs, and segregated

schools.

5. The motivation (and the effect) of the State

Board on this total record must be held to be the

perpetuation of racial segregation.

6. The incremental effect of the State Board's

actions and inaction is the tota! failure of compliance

with the constitutions and laws of the United States

and of Ohio in the performance of the duty to elim-

inate racial segregation in the Columbus School

system.

The judgment of the District Court is affirmed.

FILED

OCT. 21, 1981

JOHN P. HEHMAN, Clerk

Nos. 81-3072

81-3102

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GARY L. PENICK, et al., )

Plaintiffs-Appellees,

Cross-Appellants,

- APPEAL

COLUMBUS BOARD OF | from the United States

EDUCATION, et al., > District Court for the

Defendants, Southern District of

and Ohio.

OHIO STATE BOARD OF

EDUCATION, et al.,

Defendants-Appellants,

Cross-Appellees. |

JUDGMENT

Before: Epwarps, Chief Judve, Livery and ENcEL,

Circuit Judges.

APPEAL from the United States District Court for

the Southern District of Ohio.

THIS CAUSE came on to be heard on the record

from the United States District Court for the Southern

District of Ohio and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of

the said District Court in this cause be and the same is

hereby affirmed.

It is further ordered that Plaintiffs-Appellees, Cross-

Appellants, recover from Defendants-Appellants, Cross-

Appellees the costs on appeal, as itemized below, and that

execution therefor issue out of said District Court, if

necessary.

Entered By Order Of Tie Court

Clerk

A True Copy.

Attest:

Deputy Clerk

Issued as Mandate:

COSTS

Filing fee ........... $

Se $

UNITED STATES DISTRICT COURT

NORTHERN DiSTRICT OF OHIO

EASTERN DIVISION

ROBERT A. REED, et al., | o73-1500

Plaintiffs

a +} MEMORANDUM

JAMES A. RHODES, et al., Pi

Defendants

Battisti, C. J.

On August 23, 1979, the Court of Appeals for the

Sixth Circuit remanded for further consideration this

Court's findings that the Ohio State Board of Education

and the Superintendent of Public Education were liable

for the intentional segregation of the Cleveland public

schools. Reed v. Rhodes, 607 F.2d 714 (6th Cir. 1979),

cert. denied... US. - , 48 U.S.L.W. 3600 (March

17, 1980 (No. 79-804). Accordingly, additional hearings

were held from April 21 to April 24, 1980 on the issue of

whether the State defendants violated the plaintiffs’ Four-

teenth Amendment right to equal protection of the laws.

In 1976, this Court found both the Cleveland Board

of Education, its members, and Superintendent (“Cleve-

land defendants”) and the State Board of Education, its

members and Superintendent (“state defendants”) liable

for intentionally and deliberately operating a racially dual

public school system in the City of Cleveland. 422 F. Supp.

708 (N.D. Ohio 1976). This determination of liability

was appealed to the Court of Appeals for the Sixth Circuit,

which remanded the case back to this Court for further

consideration in light of the intervening Supreme Court

decision of Dayton Board of Education vy. Brinkman,

(Dayton I), 433 U.S. 406 (1977). 559 F. 2d 1220 (6th Cir.

1977).

Upon reconsideration, the original findings were care-

fully reviewed, affirmed and readopted, 455 F. Supp. 546

(N.D. Ohio 1978) and a Remedial Order was issued.

455 F. Supp. 569 (N.D. Ohio 1978). The state defendants

again appealed from both the Remand and Remedial

Orders.

In its August 23, 1979 decision, the Court of Appeals

affirmed this Court's findings of intentional systemwide

segregation with respect to the Cleveland defendants.

Reed v. Rhodes, 607 F.2d 714 (6th Cir. 1979), affg in

relevant part, 422 F. Supp. 708 (N.D. Ohio 1976), cert.

denied, _.. U.S. ...., 48 U.S.L.W. 3600 ( March 17, 1980)

(No. 79-804). However, with regard to the liability of the

state defendants, the Sixth Circuit Court of Appeals wrote:

While in some respects the findings of segrega-

tive purpose on the part of the state serve to meet

the Dayton requirements, [Dayton Board of Educa-

tion v. Brinkman, 433 U.S. 406 (1977)], Dayton ap-

pears to us to negate a state liability finding entered

principally on the ground of failure of the state to

compel its subdivision to comply with the United

States Constitution. As we have indicated in the

Columbus opinion, [Penick v. Columbus Board of Ed-

ucation, 583 F.2d 787 (6th Cir. 1978), affd 443 U.S.

449 (1979)], knowledge by the state of intentional

segregative practices on the part of the local board

and intentional support of the local board in pursuing

such practices appear to be requirements for a finding

of constitutional violation. For these reasons, the

uestion of state board liability is again remanded to

the District Court for answers to the questions posed

in Penick v. Columbus Board of Education.

607 F.2d at 718.

In Penick v. Columbus Board of Education, 583 F.2d

787 (6th Cir, 1978), aff'd 443 U.S. 449 (1979), the Court

of Appeals developed the following guidelines to deter-

mine the question of state liability:

1) The State Board’s knowledge (if any) of the

Columbus Board’s intentional segregative practices,

2) the State Board’s failure to protest or restrain them

by withholding funds, 3) the State Board’s continu-

ance of support in the face of such knowledge, 4) the

motivation of the State Board in failing to investigate

the reasons for de facto segregation, and 5) the effect

of findings if any, under 1, 2, 3 and 4 above, as sug-

gested in [Dayton Board of Education v. Brinkman,

433 U.S. 406, 420 (1977)].

583. F.2d at 818.

Racial Segregation in Ohio Public Schools

During the past decade, numerous courts have deter-

mined that local offices of Ohio public school districts en-

gaged in intentional segregative practices in violation of

the Fourteenth Amendment. See e.g., Reed v. Rhodes, 422

F. Supp. 708 (N.D. Ohio 1976), aff'd 607 F.2d 714 (6th

Cir. 1979), cert. denied, __ US. , 48 U.S. L.W. 3600

(March 17, 1980) (No. 79-804); Penick v. Columbus

Board of Education, 429 F.Supp. 229 (S.D. Ohio, 1977),

affd in relevant part, 433 U.S. 449 (1979); Brinkman v.

Gilligan, 583 F.2d 243 (6th Cir. 1978), aff'd, 443 U.S. 526

(1979). However, this intentional racial segregation in

Ohio public schools is not a new phenomenon. It has deep

historical roots in the laws and traditions of the State of

Ohio which for many years treated blacks as inferior beings

and second-class citizens. Recounting this history does not

make pleasant reading but is critical to developing a proper

understanding of the State’s involvement in segregation.

A brief summary will suffice.

Throughout the nineteenth century, the constitutions

and laws of the State of Ohio were used to “regulate black

and mulatto persons.” 29 Stat. 439 (See Plaintiffs’ Exhibit

3). Blacks were denied the right to vote, Const. of 1802,

art. IV, § 1, Const. of 1841, art. V, § 1, the opportunity to

serve on juries, Laws of Ohio 26:43, 29:43, the ability to

gain a legal settlement, Laws of Ohio 27:35 and the ability

to testify in any court proceeding involving a white. See,

e.g. Gray v. The State, 4 Ohio Rep. 353 (1831). The laws

also placed restrictions on the right of a “Negro or mulatto

person” to “emigrate or settle within this state,” 29 Stat.

439, and established criminal and civil penalties designed

to secure the right of slave owners in slaveholding states

to recover slaves who escaped to Ohio. 37 Stat. 38. State law

also was used to “prevent the amalgamation of the white

and colored races” by declaring it unlawful “for any person

of pure white blood to intermarry . . . with any . . . person

having a distinct and visible mixture of African blood.”

Laws of Ohio 58:6.

On remand, the plaintiffs’ basic position is that the

state defendants possessed substantial information regard-

ing the existence of intentional segregation in the Cleve-

land public school district. Despite this information, they

structured and operated the State Board of Education and

the Department of Education in a manner which permitted

them to fail to act upon this relevant and extensive infor-

mation regarding the existence of dual educational systems

in Cleveland and other municipalities in Ohio. The plain-

tiffs claim that such structuring and operation cannot serve

to immunize the state defendants from liability solely

because of the resulting lack of knowledge of segregative

practices. The plaintiffs also contend that the information

of intentional racial segregation in the possession of the

state defendants is so overwhelming that knowledge can

be imputed.

The plaintiffs are joined by the Cleveland defendants

and the Department of Justice appearing as amicus, who

argue that the state defendants had substantial knowledge

of intentional segregative acts in the Cleveland public

school district. Given this knowledge, the state defendants

unlawfully and deliberately failed to enforce the State of

Ohio's anti-segregation laws and supported intentional

racial segregation in Cleveland.

The state defendants defend their actions by stressing

the distinction between de jure and de facto segregation.

They admit an awareness of racially unbalanced schools

within Cleveland and large urban areas in Ohio. However,

because such imbalances were considered de facto and

therefore not violative of the Constitution, there was no

obligation to investigate or take corrective action. The

State defendants also claim that they possessed no knowl-

edge of the Cleveland defendants’ de jure practices, and

defend their administration and procedures in the deseg-

regation area.

Racial discrimination in the area of public education

also was authorized by state law. The foundations for the

public school system were established in 1821, Laws of

Ohio 19:5, but black children were totally excluded from

public education until 1848. (See Plaintiffs’ Exhibit 1; 2).

The early history of public education in Ohio was summar-

ized by the Ohio Supreme Court in Van Camp v. Board of

Education of Logan, 9 Ohio St. 406 (1859):

Prior to 1848 there was not any legislative provision

in Ohio for the education of any but the white youth

resident in the various districts. Most of the previous

statutes—and they are quite numerous — merely

make provision for the instruction of the white youth,

and exempt the property of blacks and mullatoes from

taxation for school purposes, while some, like the act

of February 10, 1829, [Laws of Ohio 27:72] in express

terms, exclude blacks and mulattoes from the schools.

9 Ohio St. at 408-409.

It was not until 1848 that the State of Ohio passed

legislation to provide public education for children of black

residents. 2 Curwen Rev. Stat. 1428 ( Plaintiffs’ Exhibit 4).

Shortly thereafter, a law “conceived in a more liberal and

patriotic spirit’, Van Camp v. Board of Education of

Logan, supra at 409, was enacted which required local

boards of education “to establish within their respective

jurisdictions, one or more separate schools for colored

children.” Act of 1853, Section 31 ( Plaintiffs’ Exhibit 8).

While blacks were permitted to receive an equal per capita

distribution of the common school fund, laws were passed

designed to ensure that “colored” pupils were educated at

separate schools. ( Plaintiffs’ Exhibit 6). This was done in

Cleveland with the establishment of the Cleveland School

District and the enactment of a law authorizing the Cleve-

land Board of Education “to provide separate schools for

the colored youth of school who are residing in said City,

apart from other schools.” ( Plaintiffs’ Exhibit 10A).

The deplorable state of race relations was described

succinctly by the Supreme Court of Ohio in its 1859 Van

Camp decision: “For nearly two generations, blacks and

mulattoes had been a proscribed and degraded race in

Ohio.” 9 Ohio St. at 410. “Long years of hostile legislation

and social exclusion” had resulted in racial apartheid, and

“the prejudice of ages could not be dissipated by one or

more judicial decisions” Id. at 410-411. Indeed, this preju-

dice was often reflected in judicial opinions such as State

ex rel. Gaines v. McCann, 21 Ohio St. 198 (1871), in which

the Supreme Court of Ohio unanimously upheld the va-

lidity of legislation which mandated racial segregation.

In 1887, following the passage of the Thirteenth,

Fourteenth, and Fifteenth Amendments to the Constitu-

tion of the United States, the Ohio Legislature repealed

the State’s “Black Laws”, including the provisions of the

separate school act. Act of February 21, 1887, 84 Ohio

Laws 34. However, while the Supreme Court of Ohio in-

terpreted the legislation to mean that “separate schools for

blacks have been abolished,” Board of Education v. State,

45 Ohio St. 555, 556 (1888), previously established sep-

arate schools and separate school districts for black chil-

dren were not abolished, nox was racially integrated edu-

cation declared to be a policy of the State.

Despite the official repeal of the “Black laws” in 1887,

there is no evidence that the State of Ohio undertook ac-

tions during the next fifty years to dismantle the separate

schools. Rather, the record reveals that racially segregated

public school education continued unabated. For example,

Columbus school officials created a separate school for

blacks in 1909, and staffed it entirely with black teachers.

Penick v. Columbus Board of Education, supra, 429

F. Supp. 229. A black plaintiff's attempt to challenge this

intentional segregative conduct was rejected by Ohio

Courts. Id. In addition, Dayton public school officials be-

gan segregating students by race as early as 1912. Brink-

man v. Gilligan, supra, 583 F.2d at 249.

Throughout the early 1900's, officials of the State of

Ohio were aware that separate schools for black children

were maintained in numerous localities. This is reflected

in biennial reports submitted to the Governor of Ohio by

the Ohio Director of Education (the predecessor of the

current office of Superintendent of Public Instruction)

from 1929 to 1941. (Plaintiffs’ Exhibits 21-25 and De-

fendants’ Exhibits 1-6). These reports contained the sepa-

rate enrollment figures for blacks anc hites. Significantly,

the 1929-31 report expressly noted that “the enrollment in

special schools for colored children was 1,269 for Columbus

and 1,318 for Cleveland”. ( Plaintiffs’ Exhibit 21). The

separate schools were operated in Cleveland despite com-

plaints by black parents and leaders. Two separate special

school for black children — Longwood and Outhwaite —

were justified by the Cleveland Board of Education on the

ground that their purpose was to urbanize black children

moving to Cleveland from southern states. (Plaintiffs Ex-

hibit [Liability] 224.) In fact, enrollment figures revealed

that most of the children attending these schools were

natives of Cleveland. (Id.)

Reports in subsequent years to the Governor and

General Assembly demonstrate that separate schools were

maintained in some municipalities. The 1933-35 report

stated that “Ohio generally does not have separate schools

for colored children. A few cities maintain separate schools

for colored pupils.” (Defendants Exbibit 3). The 1935-37

report noted that “a few cities have separate schools for

colored children in certain sections where the population

is entirely colored.” (Defendants’ Exhibit 4). The 1937-39

report stated that “Ohio does not have many separate

schools for colored children (Plaintiffs’ Exhibit 24). Finally,

the 1939-41 report (Plaintiffs’ Exhibit 25) contained the

following statement:

Colored Teachers. Ohio has very few separate schools

for colored children. Ten cities reported the existence

of separate schools for colored children. These schools

are located in centers where the population is mostly

comprised of colored people. The following cities re-

ported separate schools — Cincinnati, Chillicothe,

Columbus, Dayton, Gallipolis, Lockland, Mansfield,

(classes only), Middletown, Portsmouth, Wilmington,

and Xenia. Cincinnati and Columbus have a separate

Junior High School for children in one locality, as well

as elementary schools for colored children.

Despite repeated denials by the state defendants, the

evidence shows that between 1940 and 1954 annual statis-

tical reports were submitted to the State Superintendent

of Public Instruction containing data on the racial com-

position of students and faculty in school districts through-

out the state. (Plaintiffs’ Exhibit 26). These reports asked

local school districts to report the “Number of Separate

Schools for Negroes,” or “Number of Separate Schools for

Colored Children”. The State Department of Education

also required principals to submit annual statistical reports

which included information about the number of colored

teachers and pupils in each principal's school, and required

district superintendents to submit annual statistical reports

which included information about “colored” teachers and

pupils, and about separate schools for “colored” children

(see Plaintiffs’ Exhibit 33-39). Finally, the Department

also required teachers to submit annual reports reflecting

the number of colored children enrolled in their classes.

(Plaintiffs’ Exhibit 27).

The reports submitted between 1940 and 1953 indi-

cate that at least twenty-six local school districts reported

the existence of separate schools for black children. (Id. )

At least forty-four separate school were reported by these

local school districts: forty elementary schools; two junior

high schools, one senior high school, and one special

school. (Id.) Those local school districts which reported

the existence of separate schools — Dayton, Columbus,

Hillsboro — were subsequently found to be operating un-

constitutionally segregated school systems. See Clemons v.

Board of Education of Hillsboro, 288 F.2d 853 (6th Cir.

1956); Brinkman vy. Gilligan, supra; Penick v. Columbus

Board of Education, supra.

The information submitted to the State Department

of Education clearly establishes that separate schools

existed in Ohio long after such schools had been formally

abolished by law. Prior to 1954, the record shows no effort

by the State of Ohio to enforce the 1887 law which

abolished separate schools for blacks. Rather such schools,

initially created by state law and enforced by state courts,

were maintained by the policies, practices, and customs of

local officials and with the knowledge of state officials.

Til.

A. Policies and Procedures of the State Defendants in

Desegregation Matters in the years following Brown v.

Board of Education.

The decision of the Supreme Court in Brown v. Board

of Education, 347 U.S. 483 (1954), was handed down at

a time when the state educational structure was undergoing

legislative change. In 1953, amendments to the Ohio Con-

stitution provided for the selection of a State Board of

Education and the appointment of a Superintendent of

Public Instruction, with powers and duties prescribed by

law. Ohio Const., art. VI, § 4. The Office of Superintendent

of Public Instruction had been in existence under various

titles since 1853 ( Plaintiffs’ Exhibit 19). Similarly, the

State Department of Education, the administrative organ-

ization of the Superintendent and one of fifteen executive

departments of the state government, had been in existence

for numerous years. (Id.)

In order to comply with the State Constitutional man-

date, the General Assembly enacted legislation specifying

that the State Board of Education be comprised of twenty-

three members, one from each of the congressional dis-

tricts in the state. O.R.C. § 3301.04. The new State Board

was given the authority to continue to employ all persons

who had been in the Department of Education, and that

authority was expressed by resolution. Id. ( Plaintiffs’ Ex-

hibit 31).

During the 1930's and 1940's, the State of Ohio was

aware that separate schools for blacks existed in numerous

local school districts, including Cleveland, ( Plaintiffs’ Ex-

hibits 21-26). The suggestion that the separate schools

reported in the tables refer to “neighborhood schools” finds

no support in the record and flies in the face of subsequent

findings of other courts that separate schools did, in fact,

exist. See, eg. Clemons v. Board of Education of Hillsboro,

supra; Brinkman vy. Gilligan, supra; Penick vy. Columbus

Board of Education, supra. Thus from creation of the new

organizational structure in 1954, the State Department of

Education was staffed by persons who possessed knowl-

edge of the existence of separate schools for blacks and

had permitted such schools to be maintained.

From its inception, the State Board of Education

showed no inclination to undertake affirmative actions to

eliminate segregated school districts. During the first meet-

ing of the new State Board on January 3, 1956, Mr. Charles

Lucas, the Board’s sole black member and a realtor from

Cleveland, moved that the Board withhold state funds

from any school district that practiced racial discrimina-

tion. The motion was defeated. On March 12, 1956, Mr.

Lucas proposed that the State Board

“establish a committee of its own or its designees to

obtain its own set of facts that segregated schools

exist in the State of Ohio. Perhaps we don't have

jurisdiction in this matter. I should like to ask that we

request the Attorney General to define whether or not

we have any authority in this field.”

( Plaintiffs’ Exhibit 29).

This dual motion was defeated and in its stead the

State Board declared, over Lucas’ dissent, the policy it

was to follow during the next two decades.

WHEREAS the determination of what constitutes un-

— segregation is a matter for judicial decision,

WHEREAS the State Board of Education has neither

the means nor the right to take action on this question

without final determination by the courts,

BE IT RESOLVED THAT in any case where courts

have made final determination that unlawful segrega-

tion exists, this Board would then take action in ac-

cordance with the law.

( Plaintiffs’ Exhibit 29).

Mr. Lucas continued to press for a broader and more

affirmative declaration of policy in the area of racial segre-

gation. In May 1956, Mr. Lucas proposed another resolu-

tion as follows:

WHEREAS: The Supreme Court of the United States

has clearly defined racial segregation in the public

schools as unconstitutional, and

WHEREAS: The Supreme Court of the State of Ohio

has ruled racial segregation in the public schools un-

constitutional, and

WHEREAS: Remnants of racially segregated schools

exist in Ohio, and

WHEREAS: The Ohio State Board of Education is

specifically authorized in House Bill #212 to ad-

minister the schools within the framework of existing

law, and to regulate the admissions of pupils and to set

up the highest possible educational standards for the

public schools of Ohio,

BE IT RESOLVED: that the Ohio State Board of

Education go on record as insisting that each public

school under its jurisdiction operate within State and

Federal laws requiring equality of treatment of all

pupils, regardless of race, creed, or color under penalty

of loss of state funds.

BE IT FURTHER RESOLVED: that the Ohio State

Board of Education, on and after September, 1956

will instruct the State Controlling Board to withhold

funds from any school district which operates a racial-

ly segregated school in defiance of the public policy

of the State of Ohio, the Ohio Supreme Court and

the Supreme Court of the United States.

(Defendants’ Exhibit [Trial] 2012)

During discussions concerning the resolution, Mr.

Lucas declined to name any district practicing segrega-

tion, even thouth he believed that segregated school sys-

tems still existed in Ohio. (Id). The proposed resolution

was defeated, partly on the ground that Mr. Lucas had

presented no proof that “remnants of racially segregated

schools exist in Ohio.”

Mr. Lucas’ continued effort to push for stronger af-

firmative action from the State Board was opposed by other

board members, who petitioned him to “abort the effort”.

(T. Tr. 2271). A compromise was reached in which an

opinion of the Attorney General was sought with respect

to four questions concerning the scope of the State Board’s

authority. (Defendants’ Exhibit [Trial] 2012, p. 4.).

On Jrly 9, 1956, the Attorney General issued the fol-

lowing 0) nion in response to the State Board’s request.

. The term ‘law as used in section 3317.14, Re-

vised Code, forbidding the distribution of state funds

to school districts which have not ‘conformed with

the law,’ is used in the abstract sense and embraces

the aggregate of all those rules and principles en-

for od sanctioned by the governing power in the

community. Such term embraces the equal protection

provision in the Fourteenth Amendment of the Con-

stitution of the United States under which the segre-

orm of pupils in schools according to race is for-

en.

2. The primary responsibility for administering

the laws relating to the distribution of state and fed-

eral funds to the several public school districts is

placed with the state board of education, subject to

the approval of the state controlling board.

3. It is the responsibility of the state board of

education in the first instance to determine whether a

particular school district, or the board of education of

such district, ‘has not conformed with the law’ so as to

require the withholding of state funds from such dis-

trict. In making such determination the state board

of education should observe the requirements of the

Administrative Procedure Act, Chapter 119, Revised

Code, as to notice, hearing, summoning of witnesses,

presentation of evidence, degree of proof, and pro-

cedural matters generally.

4. Following a determination by the state board

of education that a school district ‘has not conformed

with the law’ so as to require the withholding of state

funds as provided in Section 3317.14, Revised Code,

such board and the controlling board, acting sepa-

rately, may, for ‘good and sufficient reason’ established

to the satisfaction of each board, offer a distribution

of funds to such district notwithstanding such lack

of conformity with the law.

( Plaintiffs’ Exhibit [Trial] 383) (emphasis added).

The Attorney General's opinion also specified the

State Board's obligations in the area of racial segregation.

“It follows, therefore, that in those cases in which

your board finds as a matter of fact that racial segre-

gation exists in a particular school district, the restric-

tive — of section 3317.14, Revised Code, must

be deemed to apply.

(Id.) (emphasis added )

Despite knowledge of its “affirmative duty under both

Ohio and Federal laws to take all actions necessary to

prevent and eliminate racial segregation in public schools,”

Brinkman v.

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