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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Record and brief
- **Published:** January 1, 1982
- **Citation:** 455 U.S. 1018

## Text

UONad

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?

i
TABLE OF CONTENTS

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SEE 5 6 nue Sdcuek cnanekkensauecsddises
QUESTIONS PRESENTED .............ccceeeeee
CONSTITUTIONAL PROVISION INVOLVED ......
STATEMENT OF THE CASE ................06..

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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’

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ii

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 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

52

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 $

53
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
d

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.

I.

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,

54

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.

55

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.

I.
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.

56

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

57

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

58

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,

59

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

60

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

61

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.

62

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.

63

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,
an

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:

64

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

65

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-

66

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. Gilligan, 503 F.2d 684, 704 (6th Cir. 1974),
the State Board deliberately chose to follow procedures
which enabled it to evade its lawful responsibilities.

Both the State Board and Department of Education
operated on the assumption that local school districts
carried out their responsibilities in accordance with law.
(Tr. 490-492) The assumption was that local school ad-
ministrators were knowledgeable concerning their duties
under the United States Constitution and laws of the State,
and that statements submitted to the department which
indicated full compliance with all laws were essentially
accurate. (Id.) The State defendants argue that this as-
sumption was reasonable because it was based on personal
relationships between state and local school officials ex-
tending over a period of time, audits conducted by the
State Auditor which rarely revealed that schools were
operated unlawfully, efforts of local district administrators
to be in compliance with the State Board’s minimum
standards, and local school assurances upon application

67

for federal funds that such funds shall not be used in a
racially discriminatory manner. (Tr. 528-529, 547-552).

In order to challenge the continuing assumption of
legality in a particular school district, a complaint had to
be filed regarding a policy or practice in the district that
appeared to be in violation of law. (Tr. 629). The position
of the State Board was that it would take no action against
a school district unless a complaint was filed in which the
complainant produced significant evidence of a violation
of a state or federal law (Tr. 481-482, 499), or complained
of a practice already determined by a court to constitute
illegal or unconstitutional action. (Tr. 781-782).

Absent such a complaint, neither the State Board nor
Department of Education permitted an investigation to be
conducted into whether state or federal laws were being
violated by the illegal segregation of school children.
(Tr. 547).

A “concern” or a “request for information” as opposed
to a “complaint”, addressed to the State Board was handled
informally by giving information to the interested parties.
Statements or comments which did not provide informa-
tion, evidence, statistical analysis or language sufficient to
prove a prima facie case of de jure segregation were rele-
gated to the status of “concerns” or “requests for informa-
tion.” ( Plaintiffs’ exhibit 30, see pp. 25-26 [App. 81-82]).
Nor was the complaint procedure ever publicized by press
release or administrative rule. Consequently, there was
never any public awareness of the mechanism for filing
a complaint. The determination of whether to characterize
a submission or presentation as a “complaint” or merely as
a “concern” or “request for information” rested in the un-
controlled discretion of the State Superintendent for Pub-
lic Instruction. (Tr. 590).

Given the history and scope of racial segregation in
Ohio, the assumptions and procedures employed by the
State defendants were clearly insufficient to carry out the

68

affirmative duties imposed by federal and state law. The
core assumption of legality clearly was unreasonable in
the area of race, where statistical data prepared by the
State defendants indicated the existence of separate schools
sixty years after the State of Ohio had officially abolished
them. The elimination of data on race between 1954 and
1968 did not eradicate the pre-1954 knowledge of illegality
and render the assumption valid. The fact that state audits
suggested general compliance with laws in no way bolsters
the assumption of legality. No evidence was presented
that the audits ever addressed the use of funds for segre-
gative purposes. Rather the evidence suggests that the
state audits covered the more traditional areas of construc-
tion, salaries, supplies, etc. Similarly, the State Board’s
reliance on assurances provided by local districts in order
to receive federal funds was unjustified. Many of these
same local districts knowingly had unlawfully operated
separate schools for black children in the post-Black laws
era, and could not reasonably be expected to monitor
themselves.

The complaint procedure also was structured in such
a manner that complaints would either not be filed or
would not be acted upon. The State Board never estab-
lished a written complaint policy or procedure (Tr. 589,
637). On at least one occasion, persons who believed they
had made a “complaint” regarding racial segregation in
Cleveland discovered that their complaint had been
treated as a “request for information.” See pp. 25-26 [App.
81-82] infra.

The effectiveness of the State Board’s complaint pro-
cedure was limited because the Board never publicized
its “primary responsibility” under the 1956 Attorney Gen-
eral’s opinion to determine “in the first instance” whether
a particular school district had not conformed with the
law, nor did the Board ever hold a formal session outside
of Columbus. Even if the State Board had attempted to

69

inform the public of the time and location of its meetings
(Tr. 158-159, 580-581), the failure to publicize its respon-
sibility in matters of school segregation and the manner
of handling such “complaints” insured that few complaints
of racial segregation came before the Board. The evidence
indicates that while the complaint procedure was allegedly
designed to permit open discussion (Tr. 740), members
of the State Board (Tr. 321) and Department of Educa-
tion (Tr. 321-324) discouraged individuals making oral
presentations from naming names or specifics in order to
avoid embarrassing individuals in the local district.

Operating under an unwarranted assumption of legal-
ity in racial matters and a complaint procedure not struc-
tured to uncover instances of racial segregation, it is not
surprising that few “complaints” were ever brought before
the State Board. The North College Hill complaint, filed
in 1964 and claiming blatantly illegal segregation of black
elementary school children in separate buildings (T.Tr
3586) represented the sole instance where the State Board
ordered an investigation and corrective action. (State De-
fendants’ Exhibit II). An earlier 1963 complaint attacking
the usé of “intact busing” in Cincinnati had resulted in
the State Board is [SIC] deferring action until the com-
plainants had obtained a judgment from a court that segre-
gation existed. ( Plaintiffs’ Exhibit 41). This State Board
inaction occurred even though former State Superintendent
Essex identified “intact busing”, a procedure which isolated
an entire class of one race from the rest of the students in a
receiving school of the opposite race, as an obvious ex-
ample of illegal de jure segregation which deserved imme-
diate attention and action by the State Board.

The State Board and Department of Education claim
that no one had ever lodged a “complaint” with them sug-
gesting that illegal segregation existed in the Cleveland
public school district. (Tr. 277; T.Tr. 3582-3584) Conse-
quently, under established policy, no investigation and

70

determination of facts was made about the existence of
intentional segregation in Cleveland. The Court finds the
position of the State defendants unsupportable for two
reasons. First, under procedures employed by the State
Department of Education, the filing of a “complaint” has
never been a pre-requisite to administrative investigations
and the utilization of corrective actions. Second, evidence
presented during both the initial liability trial and the
remand hearings demonstrates that the State defendants
were made aware of the existence of significant problems
of intentional segregation in the Cleveland area but de-
liberately and consciously chose not to pursue any inves-
tigation.

In defending their conduct regarding the Cleveland
school system, the state defendants repeatedly have told
this Court that no formal “complaint” has ever been made
to them regarding segregation in Cleveland. However, in
defending their conduct in general in the area of race, the
State defendants stress the fact that on numerous occa-
sions actions have been taken to eliminate segregative
practices in local districts absent the lodging of a com-
plait. This is claimed to have occurred in Middletown,
in Dayton, and in Toledo. (T.Tr. 5842-5843, 3956-3957,
3955-3956) In addition, the defendants claim they have
denied transfer applications in Newburg Heights (T.Tr.
3925), Youngstown (T.Tr. 3926-3927), and Springfield.
(Id.) in order to prevent increased racial isolation and
have brought about the consolidation of school districts
which have had an integrative effect. (T.Tr. 3928-3934).

In explaining the procedure whereby the State De-
partment of Education determined to act administratively,
former State Superintendent Essex noted that the Depart-
ment first had to learn of the alleged violation of law by a
protest of some kind. (T.Tr. 3953-3954 ). This protest might
take the form of telephone calls, letters, petitions, delega-
tions, and H.E.W. compliance discussions. (Id.). After

71

the department learned of “a complaint or protest or an
indication of some kind that somebody is unhappy about
something and that there is a possible violation of law”
(Id.), former Superintendent Essex stated that the Depart-
ment “may send a person or group of persons to take a
look. I may pick up the phone and talk with the [local]
Superintendent and ask him for the facts.” (Id.)

The significance of the availability and use of informal
administrative mechanisms is threefold. First, it contra-
dicts the position taken by the State defendants during the
remand hearings that the absence of a “complaint” pre-
vented them from investigating school segregation in
Cleveland. Second, it indicates that information of unlaw-
ful conditions could be and actually was made available to
the State Department of Education by means other than
“formal” complaints. Third, it suggests the highly discre-
tionary nature by which administrative process was used
to deal with problems of racial segregation in Ohio public
schools.

The designs and operation of the procedures for trig-
gering an investigation prevented highly relevant and nec-
essary information from ever reaching the State Board of
Education. Despite this attempt to shelter the state de-
fendants from information regarding segregative practices
the record reveals convincingly that on nuinerous occasions
such information was in the possession of the defendants.
See pp. 20-27 [App. 75-84] infra. However, on those occa-
sions, the state defendants chose not to pursue any mean-
ingful inquiries to ascertain the existence of such practices,
opting instead for a policy of calculated ignorance, and
therefore, inaction.

B. Policies and Procedures of the State Defendants in
Non-Desegregation Matters.

The conduct of the state defendants in the area of
desegregation varies substantially from their conduct in

72

other areas. Except for duties concerning desegregation,
the defendants vigorously exercised the full scope of their
powers in fuliilling their obligations. This is evidenced
most clearly in the promulgation of minimum standards
for all public schools in Ohio io insure uniform high quality
of education.

It is the obligation and statutory duty of the State
Board of Education to formulate and prescribe minimum
standards for all elementary and high schools in Ohio “for
the purpose of requiring a general education of high
quality” for all of the pupils within the State. The State
Board is additionally required to exercise leadership in
the “improvement” of public education in Ohio, and
toward that goal the legislature has suggested that the
required minimum standards be established in a broad
spectrum of areas, and has been very careful not to confine
the possible areas to only those suggested in the legislation.
The areas suggested include, but are not limited to, the
certificaiion of teachers; curriculum and materials; build-
ings and their contents; admission, assignment, promotion
and graduation of pupils; and “such other factors as the
board finds necessary.” O.R.C. §§3301.07(B) and
3301.07(D). As this Court has previously noted, the State
defendants admitted that, although having the power to
do so, they never promulgated minimum standards regard-
ing racial segregation of pupils, faculty, staff, or use of
facilities. 455 F.Supp. at 557.

Through its chartering powers, the State Board and
Department have aggressively enforced minimum stand-
ards. As part of the chartering process, actual on-site
inspections of secondary schools are conducted every
three to five years. This inspection includes the physical
examination of the faculty and conversations with faculty
and administrators. Prior to the opening of a new school,
an evaluation is made and a report sent to the State De-
partment containing information of expected pupil and
faculty populations, including the racial composition of

73

each. This inspection process is ongoing and provides the
State defendants with visual and statistical knowledge of
the composition and racial makeup of pupil and teacher
populations. (T.Tr. 2348, 2351-2354). If a local school
district does not meet the minimum standards promulgated
by the State Board, the Board may revoke the district's
charter or withhold funds from the district. The State
Board is also empowered, upon revocation of a school’s
charter, to “dissolve the school district and transfer its
territory to one or more adjacent districts.” O.R.C.
§ 3301.16." Thus, had the State Board not ignored the racial
segregation rampant in the Cleveland school system, it
could, quite properly, have dissolved the district and trans-
ferred its territory to adjacent districts, whereby a fully
integrated metropolitan school system could have been
realized. The State’s failure to act left the Cleveland school
system racially isolated.

The State Board of Education has vigorously exer-
cised its chartering powers. Between 1955 and 1974, the
number of state-chartered school districts in Ohio has
diminished from over 1265 to 617. This reduction has been
the result of various State Board actions, including: the
vigorous use of powers to revoke charters for non-compli-
ance with promulgated minimum standards, the use of
powers to force the voluntary abandonment of charters
after confrontation over compliance with minimum stan-
dards, and the consolidation of two or more districts, often
after a determination that one of the districts is not com-
plying with minimum standards. (Tr. 2309-2323 [Trial]).

In addition to exercising powers relating to minimum
standards, the State Board also has successfully urged
enactment of legislation in the education area. This has

1Qualified electors in the district to be transferred, equal in number
to a majority of the qualified electors voting in the last general
election, may file a petition of referendum against the transfer.
O.R.C. § 3301.161.

74

been accomplished by the statutory power to recommend
legislation to the Governor and the General Assembly in
areas identified as of public or state interest in the field of
education. O.R.C. § 3301.07(P). Legislation recommended
by the State Board has been enacted in the areas of
vocational education, teachers education and certification,
funding for disadvantaged pupil programs, etc. (T.Tr. 2388,
3939-3950).

The State Board of Educations’ [SIC] powers are not
limited to establishing minimum standards and recom-
mending legislation. It also has the statutory power to ad-
minister and supervise all allocations and distributions of
state and federal funds for public school education. O.R.C.
§ 3301.07(c).

C. Use of Traditional Powers in Desegregation Matters

Since 1956, the state defendants have been aware of
their obligation under the Constitution, see Cooper v.
Aaron, 358 U.S. 1 (1958), and State law, see Attorney Gen-
eral’s Opinion, ( Plaintiffs’ Exhibit 383 [Trial]) to insure
that state monies were not being used to segregate school
children illegally. The State defendants’ duty in the area
of desegregation also arose with Title VI of the Civil Rights
Act, 42 U.S.C. § 2000d et seq. (1974), which was enacted
in 1964 and which prohibited racial discrimination in any
program receiving federal funds. To receive funds under
Title VI, a local school district is required to report fully to
the State Board and Superintendent concerning affirmative
action and equal opportunity plans, and to indicate com-
pliance in all matters. The State Department of Education
is responsible for investigating these statements on behalf
of the appropriate federal agency. O.R.C. § 3301.07(c);
45 C.F.R. § 80.4(b)(2),(T.Tr. 2300-2307).

Despite possessing the legal authority and powers to
address fully the existence of racial segregation in Ohio
public schools, the state defendants deliberately chose not
to exercise such authority and power to carry out their

75

affirmative duty. They were able to continue approving
charters for the Cleveland public school system by not
imposing and enforcing minimum standards dealing with
desegregation. In the process, they approved the charter-
ing of twenty-seven new schools in Cleveland, each of
which was opened in a deliberately segregated manner as
previously found by this Court. 455 F. Supp 546, 561.

In the area of recommending legislation, it is note-
worthy that the State Board never once proposed or en-
dorsed legislation designed to decrease racial violation or
eliminate segregative practices. This omission is glaring
when compared to the State Board’s involvement in recom-
mending other legislation (e.g. lunch programs).

Finally, in the area of state and federal funding, the
record shows no meaningful effort by the State Board
to comply with the obligations imposed by the Constitu-
tion, federal statute and state law. For example, between
1964 and 1968, the State Board simply assumed that dis-
tricts receiving federal funds were complying with Title
VI of the Civil Rights Act. (Tr. 548-549). And since 1968,
the State Board has relied on audits conducted by the
State Auditor, even though these audits were not struc-
tured to determine the existence of discrimination in the
operation of programs. (Tr. 351). The “enforcement”
obligation of the State defendants has been conceived of
as requiring simply desegregation assistance to local com-
munities. Thus the State Board or Department conducts
seminars and conferences and undertakes other efforts de-
signed “to create an awareness that may not have existed
with regard to the statutes.” (Tr. 545).

IIT.

A. State Defendants’ Knowledge of Intentional Segrega-
tive Practices in the Cleveland Public School District.

The state defendants’ policies and procedures which
limit their access to information of specific segregative

76

practices were incapable of providing total insulation from
extensive evidence from various sources indicating the
existence of intentional segregative practices in the Cleve-
land public school district. The scope of the unconstitu-
tional conditions and the thousands of people affected
insured that some information trickled through to the
defendants. However, even when confronted with such
information, the State defendants preferred a condition of
ignorance and failed to take appropriate steps to investi-
gate and correct the problems.

The Court finds that the State defendants either (1)
had knowledge of the existence of substantial intentional
segregative practices by the Cleveland 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 practices.

This finding is based on the following:

1) As early as 1930, the State defendants were aware
that the Cleveland Board of Education was operating
special schools for significant numbers of black children.
( Plaintiffs’ Exhibit 21). These separate schools were being
maintained long after the General Assembly and Supreme
Court of Ohio had declared separate schools to be abolished.

2) In the late 1950's the State defendants granted a
waiver to the Cleveland Board of Education from com-
pliance with minimum hour-per-day standards. This per-
mitted the Cleveland defendants to provide less than the
required daily hours of education to students in over-
crowded schools, the great majority of whom were black.
This Court has previously found this action to be an inten-
tional segregative act on the part of both the State and
Cleveland defendants. 422 F. Supp. 708, 793; 455 F. Supp.
546, 565 (remand opinion).

77

The state defendants repeatedly have contended that
they never were advised of the number or identity of the
schools, or the race of the pupils involved. However, evi-
dence now indicates that the State defendants did request
the “names of schools and grade levels” to be affected
( Plaintiffs’ Exhibit 28) and no evidence suggests that this
evidence was not produced. Moreover, at all times the
State Department of Education had access to relevant data
regarding the schools to which waivers were granted.

3) In 1967, a report on “Racial Isolation in the Cleve-
land Public Schools” was prepared by Dr. Willard Richan
of Case Western Reserve for the United States Commis-
sion of Civil Rights. ( Plaintiffs’ Exhibit 224 [Trial] ). This
report detailed certain intentionally segregative acts per-
formed by the Cleveland Board of Education. (Tr. 225).
Unbelievably, the State defendants claim they were never
aware of such a study until the original liability trial in
1976. (Tr. 223-224). However, evidence indicates that
this study was mentioned in a public presentation to the
State Board of Education on racial problems in the Cleve-
land public schools in April 1970. ( Plaintiffs’ Exhibit 46).
Specifically, the question was posed to the State Board:
“Do you make use, for example, of U.S. Civi] Rights Com-
mission findings on policies of the Cleveland School Sys-
tem?” (Id. at 2). The fact that no copy was requested and
no questions were asked regarding the findings cannot
shelter the state defendants from knowledge of the exist-
ence of the report. This represents another example of
highly relevant information concerning segregation made
available but not pursued by the state defendants.

4) In 1970, racial tension in the Collinwood area of
Cleveland in Collinwood High School reached a point
where the Cleveland Police were no longer able to control
the violence and the National Guard had to be alerted
and stationed in the area. (Tr. 311-314, 442 Plaintiffs’ Ex-

78

hibit 47; 48). The adamant refusal of the Cleveland Board
of Education to reassign black students from overcrowded,
all-black Glenville High School to adjacent, underutilized
and predominantly white Collinwood High School con-
tributed to this tension. (Tr. 3945-396 Plaintiffs’ Exhibit
60).

The racial problems confronting the Collinwood and
Glenville High Schools in Cleveland prompted concerned
parents to seek assistance from the federal government.
On April 10, 1970, a letter was sent to civil rights specialist
Leonard Hamilton of the Department of Health, Educa-
tion and Welfare by the Glenville Task Force on Educa-
tion and the Collinwood Committee of Black Concern.
( Plaintiffs’ Exhibit 55). That letter requested the with-
holding of federal funds from the Cleveland Board of
Education because of various segregative practices, includ-
ing: discriminatory gerrymandering of the Collinwood
High Schoo! district; discriminatory transfers of black
students out of Collinwood High School; disproportionate
black faculty; and overcrowding of all-black Glenville High
School resulting in inferior facilities and education. (Id.).
It stated that members of the community would “be
pleased to present evidence to support our claims of dis-
criminatory practices in the Cleveland schools.” (Id. )

A copy of this letter calling “for an investigation of
discriminatory practices in the Cleveland School System”
was sent by Mrs. Gaines to Robert Greer, Assistant Super-
intendent of Urban Education, on April 27, 1970. (Plain-
tiffs’ Exhibit 56). Despite receipt of this letter detailing
specific claims of segregative practices, the State defend-
ants undertook no investigative or corrective actions. The
State Superintendent was “not really sure of what hap-
pened with HEW” (Tr. 570) and claims that he was not
informed of the contents of the HEW letter (Tr. 572).

Fortunately, the Department of Health, Education
and Welfare did undertake to investigate the complaint

79

of the Collinwood and Glenville parent groups. Its investi-
gation revealed that

(1) Some education services provided to students at
Glenville are not equal to those provided at Collin-
wood, (2) pupil assignment and becediey practices
have created an overcrowded school at Glenville and
an underutilized school at Collinwood.”

HEW’s report concluded that “(t]he comparison between
Glenville High School, 100 percent minority, and Collin-
wood High, 30 percent minority, indicates that an unequal
situation exists between the two schools,” in eight areas,
ineluding equipment, library facilities, vocational course
offerings, counselling, special education, and faculty as-
signments.

( Plaintiffs’ Exhibit 62).

The evidence presented with regard to the HEW
letter and finding indicates that Assistant Superintendent
Greer did have knowledge of substantial claims of segre-
gation in the Cleveland public schools. However, con-
sistent with a policy of calculated ignorance and inaction,
no investigation was ever conducted.

5) Parental concern over the situation at Collinwood
and Glenville High Schools did not end with a letter being
sent to the Department of Health, Education and Welfare.
Fortuitously, two concerned parents, Mr. Rufus Pierce and
Mrs. Edith Gaines, were informed by Mildred Madison, a
newly elected black member of the State Board of Educa-
tion from Cleveland, that they could appear before the State
Board of Education. (Tr. 315-317, 398). Mr. Pierce and
Mrs. Gaines told Mrs. Madison that they wished to com-
plain about deliberately segregative student and faculty
assignment plans in Cleveland. (Tr. 321-322). Mrs. Madi-

80

son discouraged them from raising general claims of segre-
gation in the Cleveland public schools with the State
Board, and advised them that State Board members had
little power or influence and therefore that there was little
likelihood of help from the State. (Tr. 398-399). Mr.
Pierce and Mrs. Gaines also were advised about the form
which their prepared statements should take. (Tr. 399).
This advice was followed even though both parents wished
to say more about the problems of racial segregation and
discrimination in Cleveland.

(Tr. 321, 402).

On April 13, 1970, the day of their presentation to
the State Board of Education, Mr. Pierce and Mrs. Gaines
met with Assistant Superintendent of Urban Education
Greer. (Tr. 318, 427). During this meeting, Mr. Greer
instructed both of them as to what they were permitted to
say to the State Board. Mr. Pierce, for example, testified
that he indicated to Mr. Greer that he wished to discuss
“violence and segregation in the Cleveland Public Schools,
especially at Collinwood.” (Tr. 321); the number of black
employees in the system; the racial treatment of students;
and desegregation of the system in general. (Tr. 323-324).
He was advised by Assistant Superintendent Greer that he
“could only ask questions”, “could not name names or
places,” and “could not discuss specific cases of isolated
segregation.” (Tr. 321-324). Rather, his remarks were to
be “general” (Id.) and all “harsher” words had to be de-
leted. (Tr. 356). Mrs. Gaines, on the advice of Mr. Greer,
actually deleted references to overcrowding and segrega-
tion at Glenville High School and the absence of multi-
cultural curriculum and materials at Collinwood High
School. (Tr. 423-440; Plaintiffs’ Exhibit 61).

Dering their five-minute presentations to the Board,
the two parents were still able to raise serious questions
about the problems of racial segregation in the Cleveland

81

public schools and the inability or unwillingness of the
Cleveland Board of Education to respond to these con-
cerns. ( Plaintiffs’ Exhibit 46). Consistent with the sugges-
tions of Mrs. Madison, both parents structured their pres-
entations to follow the Board’s 1968 Policy Statement on
Equal Education Opportunity. (Id.). During the public
session, no board member asked any questions or requested
specific details about the problems of the Cleveland public
schools. (Tr. 332, 409).

After presentation to the State Board, Mr. Pierce and
Mrs. Gaines met with Assistant Superintendent Greer,
Board Member Mildred Madison, a representative of the
Department of Justice, and others. ( Plaintiffs’ Exhibit 49).
Mr. Greer was asked to come to Cleveland to provide
assistance to local school officials, and responded that such
a trip required an invitation from the local officials. (Tr.
400-401 ).

Subsequent to the April 13, 1970 State Board meeting,
Assistant Superintendent Greer prepared a memorandum
to Superintendent Essex containing follow-up replies to
the questions asked by Mr. Pierce and Mrs. Gaines. A copy
of this memorandum was sent to Mr. Pierce and Mrs.
Gaines, as well as to Cleveland Superintendent Paul Briggs.
( Plaintiffs’ Exhibit 49; Tr. 333-339, 409-410).

Both Mr. Pierce and Mrs. Gaines felt that their pres-
entation to the State Board constituted a “complaint” (Tr.
325, 330). They were seeking help from the State Board to
ease the racial tensions that had so recently erupted in vio-
lence in the schools. They were after assistance, not infor-
mation about what the State Board had done in the past.
(Tr. 330, 353). However, they were never told of any tech-
nical or procedural requirements needed to raise their pres-
entation to a “complaint,” as opposed to a “concern” or a
“request for information” (Tr. 325, 326). The response they
received—the Greer-Essex memorandum—was regarded as
an unsatisfactory response to their request for state help to
solve the racial problems. (Tr. 340-341, 409-410).

82

Significantly, the Greer-Essex memorandum reveals
that the State Department of Education had “been kept
informed of the situation at Collinwood.” ( Plaintiffs’ Ex-
hibit 49, p.l.). The state defendants clearly were aware of
the racial nature of the problem. Combined with the pres-
entation made by Mr. Pierce and Mrs. Gaines, there is no
doubt that the State defendants had knowledge of the
existence of arguably segregative practices in Glenville and
Collinwood High Schools.

The Greer-Essex memorandum also is significant in
that it states with reference to the Collinwood situation:
“Legal authority for the Department to function in a capac-
ity other than advisory does not exist.” (Id.) Such a state-
ment was a clear misstatement of the legal authority under
which the State Board and Department of Education oper-
ated. See Attorney General's Opinion, July 9, 1956; O.R.C.
§ 3301.07. It was effective, however, in convincing Mr.
Pierce and Mrs. Gaines that the State’s role in eliminating
segregative practices was minimal and that their continued
efforts to secure assistance from the State defendants would
he fruitless. (Tr. 432-435).

The conduct of the State defendants in dealing with
the matters presented by Mr. Pierce and Mrs. Gaines
merely reflects a deliberate policy of following procedures
designed to insure that important information regarding
desegregation is never available. While the State defend-
ants refuse to investigate unless a formal complaint is filed,
the requirements for the filing of such a complaint are
never communicated to the public. And even if a “com-
plaint” is attempted to be filed, the Superintendent has
unbridled discretion to apply the label of “concern” or
“request for information”, neither of which trigger an in-
vestigation. In any event, the State defendants limit those
who might otherwise press complaints by claiming that
they can act solely in an advisory manner.

83

6) In 1968, the State Department cf Education under-
took a survey of each school and school district in the State.
This survey was reported complete!y by June, 1970, and
identified Cleveland as one of the ten most racially iso-
lated school districts in the State of Ohio. ( Plaintiffs’ Ex-
hibit 379 'Trial] ).

7) In 1975, representatives for the State Department
of Education participated in numerous meetings with rep-
resentatives of HEW and the Cleveland Board of Educa-
tion to discuss HEW’s denial of Cleveland's application for
Emergency School Assistance Act funding. ( Plaintiffs’ Ex-
hibits 203; 204; 205; 206; 207 [Trial]). The application
was denied because of the failure of the Cleveland de-
fendants to incorporate an acceptable plan to reduce racial
isolation in schools. (Id.) In the face of this extensive in-
volvement by the State Department of Education and ob-
vious awareness of the serious racial problems in Cleveland,
the State defendants chose to deny that they had knowl-
edge of any de jure segregation. The weight of the evidence
clearly suggests otherwise.

The evidence reveals that the State defendants, or
their employees, had knowledge of allegations of segre-
gative acts in the Cleveland public schools, and informa-
tion documenting the existence of such acts. In no instance
did the State Board or Department determine to investi-
gate such matters. Rather they chose to ignore information
regarding the existence of such practices, opting instead
for a policy of calculated ignorance, and therefore, in-
action.

8) Members of the State Board of Education were
made aware of the segregated nature of the Cleveland pub-
lic schools in many and varied ways. Mr. Wayne E, Shaffer,
who was a member of the State Board from its creation in
1956 to the present, testified that “we couldn't help but be
aware that Cleveland had some very serious problems and

84

that they were connected with minority matters. We knew
that. Dr. Briggs was before us many times. His predecessor
and his predecessor's predecessor came before our board.
We knew that there were acute problems in Cleveland . . .
We knew that there were schools that were predominantly
black. We know that there were other schools that were
predominantly white.” (T.Tr. 3585)

B. State Defendants’ Failure To Protest Or Restrain In-
tentional Segregative Practices of the Cleveland Board
of Education By Withholding Funds.

Despite substantial knowledge suggesting that inten-
tional segregation of black pupils was occurring in the
Cleveland public school district, the State defendants never
undertook efforts to protest or restrain the Cleveland de-
fendants by threatening or actually withholding state and
federal educational funds. The reasons are deeply rooted
in the State Board's traditionally limited conception of its
statutory and constitutional obligations.

Since at least 1956, the State defendants have had both
the legal authority and obligation to prevent the distribu-
tion of funds to school districts which have not “conformed
with the law.” O.R.C, 3317.14, Attorney General’s Opinion,
July 9, 1956 ( Plaintiffs’ Exhibit [Trial] 383). Any doubts
about the nature and scope of the State Board’s powers
and duties were dispelled by the Attorney General's Opin-
ion which had been solicited by the Board. The Board was
advised that the term “law”, as used in O.R.C, 3317.14,
“embraces the equal protection provision in the Fourteenth
Amendment of the Constitution of the United States under
which segregation of pupils in schools according to race is
forbidden.” (Id.) Significantly, the Attorney General in-
formed the State defendants that, “It is the responsibility
of the state board of education in the first instance to de-
termine whether a particular school district, or the board
of education of such district, ‘has not conformed with the

85

law’ so as to require the withholding of state funds from
such district.” (Id.).

Presumably to fulfill the obligations specified by law
and reinforced by the Attorney General’s Opinion, the State
Board adopted certain policies and procedures to deter-
mine whether school districts had not “conformed with the
law.” First, it assumed that all districts were operating law-
fully, an assumption not warranted by the history of school
segregation in the State of Ohio. See pp. 12-14, supra [ App.
66-69]. Secondly, the State Board adopted a complaint pro-
cedure which permitted the Board to ignore substantial in-
formation regarding segregative practices if the State Super-
intendent decided not to describe a presentation or request
as a “complaint”. See pp. 12-15, supra [App. 66-70]. By
these two policies, the State defendants were able to in-
sulate themselves from relevant information and structure
their functions so as to preclude State investigations into
alleged segregative practices.

In instances where no formal complaint was filed, the
State defendants offered technical desegregation assistance
to local school districts. This assistance included providing
information regarding racial isolation to local school dis-
tricts by means of monographs and mini-journals ( Defend-
ants’ Exhibit 2003; 2004 [Trial], workshops (T.Tr. 3806-
3809) and on-site visits (T.Tr. 3814). Of course, this de-
segregation assistance was voluntary. The State defendants
have provided the Court with no reason to believe that
local officials who had committed intentional segregative
acts would either request such assistance or, if requested,
actually employ it to achieve desegregation.

While the policies and procedures of the State Board
and Department might have been satisfactory in an ab-
stract, incipient system, they were clearly insufficient for
a public education system mired with the remnants of an
official state segregative practice and local practices incon-
sistent with officially-declared state policy. In any event,

86

the procedures were employed to justify the State Board's
refusal to act in the face of growing evidence of non-
conformity with the law in Cleveland.

The abdication of responsibility by the State defend-
ants cannot be defended on the grounds of sound admin-
istrative practice. Pursuant to obligations imposed under
federal and state law, the Board was required to ascertain
a local district's conformity with law and cut off state funds
if such conformity was not present. This the State Board

failed to do.

C. The State Defendants’ Continuance of Support to the
Cleveland Public Schools in the Face of Knowledge
of Intentional Segregative Practices.

A major portion of the State defendants’ defense rests
on the contention that neither the State Board nor the De-
partment of Education had any knowledge of the Cleve-
land defendants’ intentionally segregative practices. See
Proposed Findings of Fact and Conclusions of Law of the
State Board of Education and Superintendent of Public
Instruction, pp. 2-4. And without this necessary knowledge,
they had no basis to discontinue their financial and other
assistance to the Cleveland public school district.

The State Board relies on a 1964 decision of this Court
which, it is alleged, “absolved the Cleveland school system
of the NAACP’s charge of unlawful segregation.” Id., p.1.
The Board cites Craggett v. Cleveland Board of Education,
234 F. Supp. 381 (N.D. Ohio 1964), aff'd 338 F.2d 941
(6th Cir. 1964). The Board argues that it was the holding
of Craggett that whatever segregation existed at the time
in the Cleveland Public School System was de facto and
hence not violative of the pupils’ Fourteenth Amendment
rights. Therefore, the argument continues, the Board had
no duty to investigate the Cleveland school system or to
eliminate the segregation there. The Board's reliance on
Craggett was, and is, misplaced. First, Craggett involved the

87

construction of three elementary schools in black neigh-
borhoods which would, predictably, be attended predom-
inantly by black students. The Court found that such con-
struction was not intentionally discriminatory. The Court
did not, and could not, find that the Cleveland Public
School System as a whole was not illegally segregated. The
case was decided on motion for preliminary injunction,
and, as the Sixth Circuit noted in affirming the District
Court, the case had not been heard on the merits, 338 F.2d
at 942. Second, even were the Board's reading of the Crag-
gett decision correct, the Board was not relieved of its
affirmative obligation to ensure that school systems within
the state be operated in accordance with the lew. Several
times after Craggett, the Board was apprised of racial in-
equities in the Cleveland school system. The Board cannot
now claim that it ignored such information on the basis of
an extremely narrow judicial opinion which had no bearing
whatsoever on such segregative practices as intact busing,
reduced school days, gerrymandering of school attendance
zones, school closing, use of portable classrooms, and so
forth. From the premise that the Cleveland Board was not
guilty of segregative intent in building three neighborhood
elementary schools, the conclusion that the Cleveland Pub-
lic School System as a whole was not intentionally segre-
gated was simply unwarranted, especially in light of the
information which was constantly filtering through to the
State Board.

As a factual matter, then, the contention of the State
defendants is not supportable. Important information was
made available to the State Board and Department of Edu-
cation indicating the existence of intentional segregation
in Cleveland. See pp. 20-27, [App. 75-84] supra. The de-
fendants’ claim that they did not “know” of such segrega-
tion appears to rest on the fact that they conducted no
independent investigations and did not ascertain the ac-
curacy of such information. Thus while they received in-

85

formation regarding segregative conduct from contacts
with other government officials, collected data reports and
protests and complaints of concerned parents, they did not
“know” whether that conduct in fact existed.

The Court finds no support in law for the absolutist
standard of “knowledge” relied upon by the State defend-
ants. Upon being informed or advised of the existence of
relevant facts, there can be no legal sanctuary for ignor-
ance deliberately maintained.

D. The Motivation of the State Defendants in Failing to
Investigate the Reasons for De Facto Segregation.

The State Board of Education and the Department
of Education have been, and are, aware of the existence of
many predominantly one race schools in large urban areas
in the State of Ohio. (Tr. 600, 152). They were aware,
as of 1970, that Cleveland was one of the ten school dis-
tricts with the most racial isolation in the State of Ohio
(Plaintiffs) Exhibit 379 [Trial] ).

Despite knowledge of extensive de facto segregation
in Ohio generally, and in Cleveland specifically, the State
defendants did not undertake any investigation of the
reasons for such segregation. Their justifications for this
failure can be stated simply: de facto segregation is not
violative of the Constitution (Tr. 601-602, 152-153), and
no complaint was ever filed suggesting that illegal segre-
gation existed in the Cleveland school district. (Tr. 277).

The Court rejects the defendants’ contention that the
absence of a formal complaint justifies the failure to con-
duct an investigation of segregation in Cleveland. The
Pierce-Gaines presentation to the Board in 1970 clearly
suggested the existence of illegal segregation in Cleveland
and was intended to be a complaint. See pp. 23-26, supra.
That this presentation was not considered a complaint is
indicative of the use of discretionary procedural devices
to shelter the Board from knowledge, and therefore an

89

obligation to act. In any case, other information made
available to the State defendants suggested the existence
of illegal segregation in Cleveland. See pp. 20-27, supra.

The State defendants’ claim that de facto segregation
was not investigated because it was considered lawful does
not address the question of motivation. De facto segrega-
tion always has been, and continues to be, lawful. Keyes
v. School District No. 1, Denver, Colorado, 413 U.S. 189,
208 (1973). Intentional racial segregation—de jure segre-
gation—has been unlawful at least since the decision in
Brown v. Board of Education, 347 U.S. 483 (1954).

The real question involves the State defendants’ as-
sumption that all segregation is considered de facto, unless
proven otherwise. This assumption is merely a restatement
of the assumption that all systems are operating lawfully
in the area of race and is similarly unwarranted. Given the
history of state mandated and permitted segregation, and
the state defendants’ knowledge that separate schools had
been maintained unlawfully long after they were officially
abolished, any assumption of legality is not supportable
by history. Nor is this assumption supported by the fact
that “neighborhood” schools have long been considered
legal. See Craggett v. Cleveland Board of Education, 234
F. Supp. 381 (N.D. Ohio), aff'd, 358 F. 2d 941 (6th Cir.
1964); Dayton Board of Education v. Brinkman, 433 U:S.
406, 417-418 (1977) (Dayton I). Without focusing on
intent, the “neighborhood” label becomes a readily avail-
able means to segregate by race. See Reed y. Rhodes,
supra, 422 U.S. at 790-92.

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. Instead
of responding to duties imposed by state law and the fed-
eral constitution, the State Board and Department of Edu-
cation chose to abdicate their responsibilities to insure
equal protection of the laws.

90

E. The ‘Incremental Segregative Effect’ of the State
Board’s Action and Inaction.

Had the State Board acknowledged its affirmative
obligation under state and federal law to discover and
eliminate local segregation, and had it exercised its power
to withhold state monies from local segregated school
systems or to dissolve and consolidate school districts, the
likelihood is that the Cleveland Public School System
would not have been in the sorry, segregated condition
that this Court found it in 1976. While the notion of ‘incre-
mental segregative effect’ is not a mathematically precise
one, this Court concludes that, had the State intervened
at the appropriate time, the intentional segregation ram-
pant within the Cleveland school system could have been
eliminated ‘root and branch’ many years ago. The State
Boarc'’s continued torpidity in the face of clear evidence
of de jure segregation of the Cleveland schools had the
‘incremental segregative effect’ of allowing continued
segregation where it need not have continued.

The State Board’s failure to take affirmative steps to
eliminate or alleviate unconstitutional racial segregation
in the Cleveland public school district, by itself, apparently
does not support a finding of state liability under the
Fourteenth Amendment. Reed v. Rhodes, supra, 607 F.2d
at 714; Penick v. Columbus Board of Education, supra,
583 F.2d at 818. This is true even though the State of
Ohio operating through the State Board of Education, is
legally and primarily responsible for the maintenance and
operation of public schools in Ohio, Ohio Const., Art. VI
§ 3; Drury’s Ohio School Guide, § 301, p. 25 (3d ed.),
and the responsibility in the «ea of racial segregation has
been clearly set forth and communicated to the Board.
Attorney General’s Opinion. Thus, the mere fact that the
Board has “notice of its obligation to seek out. locate, and
extirpate racial segregation in the public schools of Ohio’,
Reed v. Rhodes, supra, 422 F. Supp. at 794, and know-
ingly fails to meet its obligation, is insufficient to impose

91

liability on the State. Arthur v. Nyquist, 573 F.2d 134, 146-
47 (2d Cir. 1978); cf. Rizzo v. Goode, 423 U.S. 362, 375-
77.(1976).

The failure of the State Board to take actions intended
to eliminate segregation can, when combined with other
facts, support a finding of constitutional violation, for “the
Censtitution can be violated by inaction as well as deeds.”
Geier v. University of Tennessee, 597 F.2d 1056, 1067
(6th Cir. 1979), cert. denied, U.S. , 100 S. Ct. 180
(1979). See Columbus Board of Education y. Penick,
supra, 433 U.S. at 449-50. Thus, a state which initially
compelled or authorized the creation of a local dual system
of education has a continuing affirmative duty to eradicate
all lingering effects of segregation; the neglect of that con-
stitutional duty renders the State liable Geier, supra, 597
F.2d at 1067; United States v. Missouri, 363 F. Supp. 739,
747 (E.D. Mo. 1973), affd in relevant part, 515 F.2d 1365
(8th Cir.) (en banc) cert. denied, 423 U.S. 951 (1975).
The Fourteenth Amendment requires “state officials . . . to
take the necessary steps ‘to eliminate from the public
schools all vestiges of state imposed segregation ” Milli-
ken v. Bradley, 433 U.S. 267, 289-90 (1977) (citation
omitted ). Even if a State took no part in the creation of a
local dual system of public education, it can be liable
with local officials if it or its agents adhered to a deliberate
policy of tolerating or supporting intentional racial segre-
gation. Norwood vy. Harrison, 413 U.S. 455, 463-67 (1973);
Reed v. Rhodes, supra, 607 F.2d at 717-18. The rationale
is set forth by the Supreme Court in Cooper v. Aaron, 358
U.S. 1, 19 (1958):

State support of segregated schools throngh any ar-
rangement, management, funds, or property cannot
be squared with the [Fourteenth] Amendment's com-
onl that no state shall deny to any person within
its jurisdiction the equal protection of the laws.

This Court cannot conclude that the State of Ohio
operated a state-wide racially dual system of public school-

92

ing at the time of Brown v. Board of Education, supra.
Certainly State law after 1887 did not mandate that sepa-
rate schools be maintained for black children. Board of
Education v. The State, 45 Ohio St. 555 (1888). However,
the mere repeal of the “Black laws” did not alter the fun-
damental policies and customs of significant numbers of
local school boards and state officials. Local school boards
continued to operate separate schools, and state officials
showed no tendency to enforce the law despite knowledge
of the existence of numerous separate schools for blacks
throughout the State. Considering the historical back-
ground, the failure to demand compliance suggests a delib-
erate policy of refusing to enforce state law on behalf of
a racial minority—-a fundamental violation of the Four-
teenth Amendment's guarantee of “equal protection of the
laws’.

A finding of state liability need not depend on the
finding that the State of Ohio operated a state-wide dual
system of education. Rather, knowledge by the state of
intentional segregative practices by the local board and
intentional support of the local board in pursuing such
practices are sufficient to establish 2 constitutional viola-
tion. Reed v. Rhodes, supra, 607 F.2d at 717-18.

The evidence considered by this Court in the original
liability trial and first remand opinion, combined with the
testimony and exhibits produced during the most recent
remand hearings, indicates that the State defendants had
knowledge of serious racial problems in the Cleveland
area. The State Board and Department also had knowledge
of intentional segregative practices being pursued by the
Cleveland Board of Education. This knowledge was de-
rived from protests to the State Board by concerned
parents, from data on the racial composition of faculty and
students in school, and from reports from, and discussions
with, federal officials.

The assertion that ignorance of the de jure nature
of segregation in Cleveland constitutes a valid defense

93

cannot withstand careful scrutiny. The State Board cannot
escape liability by seeking to erect the shelter of ignorance.
“No State may effectively abdicate its responsibilities by
either ignoring them or by merely failing to discharge
them whatever the motive may be.” Burton v. Wilmington
Parking Authority, 365 U.S 715, 725 (1961). Time and
again the State Board and Department of Education were
exposed to information pointing specifically to the exis-
tence of de jure segregation in Cleveland. Yet time and
again the State defendants deliberately chose not to pursue
an investigation which might reveal additional facts which
would constitute first hand knowledge and perhaps force
them to make difficult desegregative decisions. In this re-
gard, “it is difficult not to metaphorically refer to the
State Board of Education as the proverbial ostrich with its
head in the sand. Despite being virtually buried in an
avalanche of data pointing up the severely segregated
nature of the Cleveland schools, the Board steadfastly
adhered to its do-nothing policy.” Reed v. Rhodes, supra,
422 F.Supp. at 796.

Numerous factors indicate that despite substantial
information regarding intentional segregative practices in
Cleveland, the State Board of Education intentionally sup-
ported the Cleveland Board of Education in the pursuit
of such practices.* The historical background is one of

2 Village of Arlington Heights v. Metropolitan Housing Devel-
opment Corp., 429 U.S. 252 (1977), indicates that the following
factors are relevant to determining intent

(i) The impact of the official action;
(ii) The historical background of the decision;

(iii) The specific sequence of events leading to the particular
decision, and particularly, any departures from normal
policy and practice;

(iv) The legislative or administrative history, particularly “con-

temporary statements by members of the decision-making
body”.

94

initial state-mandated segregation. Subsequently, local
practice and state inaction permitted separate schools to
continue in existence. Against this historical background
and, in the face of information demonstrating the existence
of de jure segregation, the Board failed to conduct any
investigation to determine the cause of segregation in
Cleveland or to ascertain the validity of complaints and
reports of intentional segregation. This failure to investi-
gate occurred even though the State defendants had
been advised of their primary responsibility, “in the
first instance,” to insure conformity with law. The impact
of the State Board’s decision to decline to investigate was
to permit acts of de jure segregation to continue. This in-
action also permitted millions of dollars in state and fed-
eral funds to be utilized by the Cleveland defendants to
operate their unconstitutional school system. The policies
and practices of the State Board in structuring and en-
forcing their obligations concerning segregation were
markedly different from policies pursued in other fields.
Vigorous exercise of powers and duties in other educa-
tional areas distinguished the Board’s general activities in
establishing and enforcing minimum educational standards
from the Board's inaction in racial matters.

The findings of intentional support and knowledge of
segregative practices in the Cleveland public school dis-
trict undergird this Court’s conclusion that the State de-
fendants are jointly liable for the creation and maintenance
of illegally segregated public schools in the City of
Cleveland.

Therefore, the State defendants are, along with the
Cleveland defendants, responsible for implementing a
remedy which will eliminate all vestiges of unconstitu-
tional segregation in the Cleveland public school district.

At the very least, therefore, the State defendants
must, except where statutes, legislation, or normal prac-
tice provide for a greater reimbursement, share jointly and

95

severally in the cost of implementation of desegregation
on a continuing basis, and must reimburse the local de-
fendants for the State’s share of desegregation-related ex-
penses incurred so far. Future costs shall be shared by the
State defendants as they are incurred, and not on a
reimbursement basis, in order that the loca! defendants
not be further unduly burdened with the total cost of
implementation. However, as this Court noted in its Reme-
dial Order of February 6, 1978, 455 F’. Supp. 56S, 607, the
State’s responsibility goes beyond giving financial aid.
The Court reiterates that Order here:

The federal constitution requires that the State take
an active part in dismantling the dual school system
it has helped to create and replacing it with a unitary,
integrated system. The Ohio constitution and state
statutes make the State Board primarily responsible
for educating students in a racially integrated manner.

To insure State participation in the remedy process
the Court orders the State Board to undertake a
“positive action program” of the type described in the
ee paws Recommendations at 151, October
27, 1977:

The Special Master recommends that the Court gain
assurances from the State defendants that a positive
action pe will be instituted to inspect and insure
that all schools in the Cleveland District meet and
maintain State Minimum Standards. Such a program
should include reviewing test results and further de-
vising and utilizing methods of ascertaining and as-
suring that students in the Cleveland School System
are achieving in accordance with the grade level to
which they have advanced in the Cleveland School
System. The program should also include more posi-
tive investigation and more rigorous enforcement in
regard to schools meeting and maintaining State
Minimum Standards in regard to the physical and
safety aspects of the educational environment. The
program should further include more rigorous enforce-
ment of State educational standards in regard to pro-

96

visions of equal educational opportunities to minority
students in a desegregated atmosphere in the Cleve-
land School System.

In addition, the State defendants are expected to con-
tinue to provide their expertise as necessary to aid
the City defendants in carrying out the other aspects
of this Order and such supplementary orders as will
issue from time to time.

Should further remedial orders prove necessary, they
will be forthcoming.

IT IS SO ORDERED.

Frank J. Battisti

Chief Judge

97
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ROBERT A. REED, et al., C73-1300
Plaintiffs,
- ' JUDGMENT
ENTRY
JAMES A. RHODES, et al.,
Defendants p
Battisti, C.J. .

In accordance with the Memorandum Opinion and
Order filed on September 23, 1980,

IT IS ORDERED, ADJUDGED AND DECREED
that the State defendants are jointly liable for the creation
and maintenance of illegally segregated public schools in
the City of Cleveland.

Frank J. Battisti
Frank J. Battisti, Chief Judge

98

No. 80-3700
UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ROBERT A. REED IIL, etal., )
Plaintiffs-Appellees,
vs.
JAMES A. RHODES, et al., APPEAL
Defendants, | from the United States
a > District Court for the
OHIO STATE BOARD OF — of
EDUCATION AND OHIO P
SUPERINTENDENT OF
PUBLIC INSTRUCTION,
Defendants-Appellants. J

Decided and Filed October 21, 1981.

Before: Epwarps, Chief Judge, Livery and ENcEL,
Circuit Judges.

Epwaros, Chief Judge. This is the Cleveland deseg-
regation case which has been returned to this court after
our remand to the District Court for new findings of fact
concerning the question of intentional segregation on the
part of the defendants-appellants, Ohio State Board of
Education and Ohio Superintendent of Public Instruction.
Reed v. Rhodes, 607 F.2d 714 (6th Cir. 1979), cert. denied,
445 U.S. 935 (1980); Reed v. Rhodes on remand, 500
F.Supp. 404 (N.D. Ohio 1980). The District Judge on re-
mand entered eight findings of fact which he viewed as
establishing that the State Board and its Superintendent
had knowledge of serious and intentional discrimination

99

against black children in the Cleveland School system and
continued to support that school system including its seg-
regative practices through state financing in spite of that
knowledge and in spite of a state law duty to withhold such
financing. He held that this record represents intentional
segregation within the meaning of Village of Arlington
Heights v. Metropolitan Housing Development Corp., 429
U.S. 252 (1977), and Dayton Board of Education v. Brink-
man, 443 U.S. 526 (1979). We affirm.

This court’s remand spelled out our understanding of
intentional segregation as the Supreme Court has employed
that concept in these cases (and others).

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 Education v.
Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 85
(1977)], Dayton appears to us to negate a state lia-
bility finding porn. recede 4 on the ground of fail-
ure of the state to compel its subdivision to comply
with the United States Constitution. As we have indi-
cated in the Columbus opinion, [Penick v. Columbus
Board of Education, 583 F.2d 787 (6th Cir. 1978),
affd 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666
(1979) ], knowledge by the state of intentional —_
gative practices on the part of the local board and in-
tentional support of the local board in pursuing such
practices appear to be requirements for a finding of
constitutional violation. For these reasons, the ques-
tion 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 the Penick opinion, we remanded for the District Judge
to make findings on the following:

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

100

by withholding funds, 3) the State Board’s contin-
uance of support in the face of such knowledge, 4)
the motivation of the State Board in failing to investi-
gate 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 Board of Education vy. Brink-
Caer ye U.S. 406, 420, 97 S.Ct. 2766, 53 L.Ed.2d 85

583 F.2d at 818.

The District Judge’s answers and detailed findings of
fact concerning defendants’ knowledge of and participa-
tion in intentional segregation in Cleveland are as follows:

A. State Defendants’ Knowledge of Intentional Segre-
gative Practices in the Cleveland Public School
District.

The Court finds that the State defendants either
(1) had knowledge of the existence of substantial in-
tentional segregative practices by the Cleveland de-
fendants, or (2) were confronted with information of
such magnitude that such knowledge could be im-
puted to them; and that their failure to investigate
and to correct the violations was intentionally sup-
portive of such practices.

This finding is based on the following:

1) As early as 1930, the State defendants were
aware that the Cleveland Board of Education was
operating special schools for significant numbers of
black children. ( Plaintiffs’ Exhibit 21). These separate
schools were being maintained long after the General
Assembly and Supreme Court of Ohio had declared
separate schools to be abolished.

2) In the late 1950's the State defendants granted
a waiver to the Cleveland Board of Education from
compliance with minimum hour-per-day standards.
This permitted the Cleveland defendants to provide
less than the required daily hours of education to stu-
dents in over-crowded schools, the great majority of
whom were black. This Court has previously found

101

this action to be an intentional segregative act on
the part of both the State and Cleveland defendants.
422 F.Supp. 708, 793; 455 F.Supp. 546, 565 (remand
opinion ).

The state defendants repeatedly have contended
that they never were advised of the number or iden-
tity of the schools, or the race of the pupils involved.
However, evidence now indicates that the State de-
fendants did request the “names of schools and grade
levels” to be affected ( Plaintiffs’ Exhibit 28) and no
evidence suggests that this evidence was not pro-
duced. Moreover, at all times the State Department of
Education had access to relevant data regarding the
schools to which waivers were granted.

3) In 1967, a report on “Racial Isolation in the
Cleveland Public Schools” was prepared by Dr. Wil-
lard Richan of Case Western Reserve for the United
States Commission of Civil Rights. ( Plaintiffs’ Exhibit
224 [Trial] ). This report detailed certain intentionally
ane re acts performed by the Cleveland Board of
Education. (Tr. 225). Unbelievably, the State defend-
ants claim they were never aware of such a study until
the original liability trial in 1976. (Tr. 223-224). How-
ever, evidence indicates that this study was mentioned
in a public presentation to the State Board of Educa-
tion on racial problems in the Cleveland public schools
in April 1970. ( Plaintiffs’ Exhibit 46). Specifically, the
question was posed to the State Board: “Do you make
use, for example, of U. S. Civil Rights Commission
findings on mn ow of the Cleveland School System?”
(Id. .° 2). The fact that no copy was requested and no

uestions were asked regarding the findings cannot
shelter the state defendants from knowledge of the
existence of the report. This represents another exam-
ple of highly relevant information concerning segre-
gation made available but not pursued by the state
defendants.

4) In 1970, racial tension in the Collinwood
area of Cleveland in Collinwood High School reached
a point where the Cleveland Police were no longer
able to control the violence and the National Guard

102

had to be alerted and stationed in the area. (Tr. 311-
314, 442; Plaintiffs’ Exhibit 47; 48). The adamant re-
fusal of the Cleveland Board of Education to reassign
black students from overcrowded, all-black Glenville
High School to adjacent, underutilized and predom-
inantly white Collinwood High School contributed to
this tension. (Tr. 3945-3960 Plaintiffs’ Exhibit 60).

The racial problems confronting the Collinwood
and Glenville High Schools in Cleveland prompted
concerned parents to seek assistance from the federal
government. On April 10, 1970, a letter was sent to
civil rights specialist Leonard Hamilton of the Deyart-
ment of Health, Education and Welfare by the Glen-
ville Task Force on Education and the Collinwood
Committee of Black Concern. ( Plaintiffs’ Exhibit 55).
That letter requested the withholding of federal funds
from the Cleveland Board of Education because of
various segregative practices, including: discrimina-
tory gerrymandering of the Collinwood High School
district; discriminatory transfers of black students out
of Collinwood High School; disproportionate black
faculty; and overcrowding of all-black Glenville High
School resulting in inferior facilities and education.
(Id.). It stated that members of the community would
“be pleased to present evidence to support our claims
7 rn practices in the Cleveland schools.”

Id.

A copy of this letter calling “for an investigation
of discriminatory practices in the Cleveland School
System” was sent by Mrs. Gaines to Robert Greer,
Assistant Superintendent of Urban Education, on April
27, 1970. ( Plaintiffs’ Exhibit 56). Despite receipt of
this letter detailing specific claims of segregative prac-
tices, the State defendants undertook no investigative
or corrective actions. The State Superintendent was
“not really sure of what happened with HEW” (Tr.
570) and claims that he was not informed of the con-
tents of the HEW letter (Tr. 572).

Fortunately, the Department of Health, Educa-
tion and Welfare did undertake to investigate the
complaint of the Collinwood and Glenville parent
groups. Its investigation revealed that

103

(1) Some education services provided to stu-
dents at Glenville are not equal to those provided
at Collinwood, (2) pupil assignment and bound-
ary practices have created an overcrowded school
at Glenville and an underutilized school at Col-

linwood.

HEW’s report concluded that “[t]he comparison be-
tween Glenville High School, 100 percent minority,
and Collinwood High, 30 percent minority, indicates
that an unequal situation exists between the two
schools,” in eight areas, including equipment, library
facilities, vocational course offerings, counselling, spe-
cial education, and faculty assignments.

( Plaintiffs’ Exhibit 62).

The evidence presented with regard to the HEW
letter and finding indicates that Assistant Superin-
tendent Greer did have knowledge of substantial
claims of segregation in the Cleveland public schools.
However, consistent with a policy of calculated ignor-
ance and inaction, no investigation was ever conducted.

5) Parental concern over the situation at Collin-
wood and Glenville High Schools did not end with a
letter being sent to the Department of Health, Edu-
cation and Welfare. Fortuitously, two concerned par-
ents, Mr. Rufus Pierce and Mrs. Edith Gaines, were
informed by Mildred Madison, a newly elected black
member of the State Board of Education from Cleve-
land, that they could appear before the State Board
of Education. (Tr. 315-317, 398). Mr. Pierce and Mrs.
Gaines told Mrs. Madison that they wished to com-
plain about deliberately segregative student and fac-
ulty assignment plans in Cleveland. (Tr. 321-322).
Mrs. Madison discouraged them from raising general
claims of segregation in the Cleveland public schools
with the State Board, and advised them that State
Board members had little power or influence and
therefore that there was little likelihood of help from
the State. (Tr. 398-399). Mr. Pierce and Mrs. Gaines
also were advised about the form which their pre-
pared statements should take. (Tr. 399). This advice

104

was followed even though both parents wished to say
more about the problems of racial segregation and
discrimination in Cleveland.

(Tr. 321, 402).

On April 13, 1970, the day of their presentation
to the State Board of Education, Mr. Pierce and Mrs.
Gaines met with Assistant Superintendent of Urban
Education Greer. (Tr. 318, 427). During this meeting,
Mr. Greer instructed both of them as to what they
were permitted to say to the State Board. Mr. Pierce,
for example, testified that he indicated to Mr. Greer
that he wished to discuss “violence and segregation in
the Cleveland Public Schools, especially at Collin-
wood.” (Tr. 321); the number of black employees in
the system; the racial treatment of students; and de-
segregation of the system in general. (Tr. 323-324),
He was advised by Assistant Superintendent Greer
that he “could only ask questions”, could not name
names or places,” and “could not discuss specific cases
of isolated segregation.” (Tr. 321-324). Rather, his
remarks were to be “general” (Id.) and all “harsher”
words had to be deleted. (Tr. 356). Mrs. Gaines, on
the advice of Mr. Greer, actually deleted references
to overcrowding and segregation at Glenville High
School and the absence of multi-cultural curriculum
and materials at Collinwood High School. (Tr. 423-
440; Plaintiffs’ Exhibit 61).

During their five-minute presentations to the
Board, the two parents were still able to raise serious

uestions about the problems of racial segregation in
the Cleveland public schools and the inability or un-
willingness of the Cleveland Board of Education to
respond to these concerns. ( Plaintiffs’ Exhibit 46).
Consistent with the suggestions of Mrs. Madison, both
p* rents structured their presentations to follow the
Board’s 1968 Policy Statement on Equal Education
Opportunity. (Id.). During the public session, no

d member asked any questions or requested spe-
cific details about the problems of the Cleveland pub-
lic schools. (Tr. 332, 409).

After presentation to the State Board, Mr. Pierce
and Mrs. Gaines met with Assistant Superintendent

105

Greer, Board Member Mildred Madison, a represent-
ative of the Department of Justice, and others. ( Plain-
tiffs’ Exhibit 49). Mr. Greer was asked to come to
Cleveland to provide assistance to local school of-
ficials, and responded that such a trip required an in-
vitation from the local officials. (Tr. 400-401 ).

Subsequent to the April 13, 1970 State Board
meeting, Assistant Superintendent Greer prepared a
memorandum to Superintendent Essex containing fol-
low-up replies to the questions asked by Mr. Pierce
and Mrs. Gaines. A copy of this memorandum was
sent to Mr. Pierce and Mrs. Gaines, as well as to
Cleveland Superintendent Paul Briggs. (Plaintiff's
Exhibit 49; Tr. 333-339, 409-410).

Both Mr. Pierce and Mrs. Gaines felt that their
presentation to the State Board constituted a “com-
plaint” (Tr. 325, 330). They were seeking help from
the State Board to ease the racial tensions that had
so recently erupted in violence in the schools. They
were after assistance, not information about what the
State Board had done in the past. ( Tr. 330, 353). How-
ever, they were never told of any technical or pro-
cedural requirements needed to raise their presenta-
tion to a “complaint,” as opposed to a “concern” or a
“request for information” (Tr. 325, 326). The response
they received — the Greer-Essex memorandum — was
regarded as an unsatisfactory response to their request
for state help to solve the racial problems. (Tr. 340-
341, 409-410).

Significantly, the Greer-Essex memorandum re-
veals that the State Department of Education had
“been kept informed of the situation at Collinwood.”
( Plaintiffs’ Exhibit 49, p. 1). The state defendants
clearly were aware of the racial nature of the problem.
Combined with the presentation made by Mr. Pierce
and Mrs. Gaines, there is no doubt that the State de-
fendants had knowledge of the existence of arguably
segregative practices in Glenville and Collinwood
High Schools.

The Greer-Essex memorandum also is significant
in that it states with reference to the Collinwood situ-
ation: “Legal authority for the Department to func-

106

tion in a capacity other than advisory does not exist.”
(id.) Such a statement was a clear misstatement of
the legal authority under which the State Board and
Department of Education operated. See Attorney
General's Opinion, July 9, 1956; O.R.C. § 3301.07. It
was effective, however, in convincing Mr. Pierce and
Mrs. Gaines that the State’s role in eliminating segre-
gative practices was minimal and that their continued
efforts to secure assistance from the State defendants
would be fruitless. (Tr. 432-435).

The conduct of the State defendanis in dealing
with the matters presented by Mr. Pierce and Mrs.
Gaines merely reflects a deliberate policy of following
procedures designed to insure that important infor-
mation regarding desegregation is never available.
While the State defendants refuse to investigate unless
a formal complaint is filed, the requirements for the
filing of such a complaint are never communicated to
the public. And even if a “complaint” is attempted to
be filed, the Superintendent has unbridled discretion
to apply the label of “concern” or “request for infor-
mation’, neither of which trigger an investigation. In
any event, the State defendants limit those who might
otherwise press complaints by claiming that they
can act solely in an advisory manner.

6) In 1968, the State Department of Education
undertook a survey of each school and school district
in the State. This survey was reported completely by
June, 1970, and identified Cleveland as one of the ten
most racially isolated school districts in the State of
Ohio. ( Plaintiffs’ Exhibit 379 [Trial] ).

7) In 1975, representatives for the State De-
partment of Education participated in numerous meet-
ings with representatives of HEW and the Cleveland
Board of Education to discuss HEW’s denial of Cleve-
land’s application for Emergency School Assistance
Act funding. ( Plaintiffs’ Exhibits 203; 204; 205; 206;
207 [Trial] ). The application was denied because of
the failure of the Cleveland defendants to incorporate
an acceptable plan to reduce racial isolation in schools.
(Id.) In the face of this extensive involvement by the

107

State pee so of Education and obvious aware-
ness of the serious racial problems in Cleveland, the
State defendants chose to deny that they had knowl-
edge of any de jure segregation. The weight of the
evidence clearly suggests otherwise.

The evidence reveals that the State defendants,
or their employees, had knowledge of allegations of
egregative acts in the Cleveland public schools, and
information documenting the existence of such acts.
In no instance did the State Board or De ent
determine to investigate such matters. Rather they
chose to ignore information regarding the existence of
such practices, opting instead for a policy of calcu-
lated ignorance, and therefore, inaction.

8) Members of the State Board of Education
were made aware of the segregated nature of the
Cleveland public schools in many and varied ways.
Mr. Wayne E. Shaffer, who was a member of the
State Board from its creation in 1956 to the present,
testified that “we couldn't help but be aware that
Cleveland had some very serious problems and that
they were connected with minority matters. We know
that. Dr. Briggs was before us many times. His pre-
decessor and his predecessor's predecessor came be-
fore our board. We know that there were acute prob-
lems in Cleveland . . . . We know that there were
schools that were predominantly black. We know that
there were other schools that were predominantly

white.” (T. Tr. 3585)
Reed vy. Rhodes, 500 F.Supp. at 416-420.

We have examined these findings of fact against the
lengthy record in this case. We cannot hold that any of
them are “clearly erroneous.” They appear to us to charge
the state defendants with detailed knowledge of the
Cleveland Board's segregative practices.

The District Judge made additional analyses of the
defendants’ knowledge of school segregation, their legal
duty to correct same and their mctivation in failing to
do so.

108

D. The Motivation of the State Defendants in Fail-
ing to Investigate the Reasons for De Facto

Segregation.

The State Board of Education and the Depart-
ment of Education have been, and are, aware of the
existence of many predominantly one race schools in
large urban areas in the State of Ohio. (Tr. 600, 152).
They were aware, as of 1970, that Cleveland was one
of the ten school districts with the most racial isolation
in the State of Ohio ( Plaintiffs’ Exhibit 379 [Trial] ).

Despite knowledge of extensive de facto segre-
?- in Ohio generally, and in Cleveland specifically,
the State defendants did not undertake any investiga-
tion of the reasons for such segregation.

The Court rejects the defendants’ contention that
the absence of a formal complaint justifies the failure
to conduct an investigation of segregation in Cleve-
land. The Pierce-Gaines presentation to the Board in
1970 clearly suggested the existence of illegal segre-
gation in Cleveland and was intended to be a com-
plaint. See pp. 418-420, supra. That this presentation
was not considered a complaint is indicative of the
use of discretionary procedural devices to shelter the
Board from knowledge, and therefore an obligation
to act. In any case, other information made available
to the State defendants suggested the existence of
illegal segregation in Cleveland.

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. In-
stead of responding to duties imposed by state law
and the federal constitution, the State Board and De-
partment of Education chose to abdicate their re-
sponsibilities to insure equal protection of the laws.

E. The “Incremental Segregative Effect” of the State
Board’s Action and Inaction.

109

Had the State Board acknowledged its affirmative
obligation under state and federal law to discover and
eliminate local segregation, and had it exercised its
power to withhold state monies from local segregated
school systems or to dissolve and consolidate school
districts, the likelihood is that the Cleveland Public
School System would not have been in the sorry,
segregated condition that this Court found it in 1976.
While the notion of “incremental segregative effect”
is not a mathematically precise one, this Court con-
cludes that, had the State intervened at the appropri-
ate time, the intentional segregation rampant within
the Cleveland system could have been eliminated
“root and branch” many years ago. The State Board's
continued torpidity in the face of clear evidence of
de jure segregation of the Cleveland schools had the
“incremental segregative effect” of allowing continued
segregation where it need not have continued.

The findings of intentional support and knowl-
edge of segregative practices in the Cleveland public
school district undergird this Court's conclusion that
the State defendants are jointly liable for the creation
and maintenance of illegally segregated public
schools in the City of Cleveland.

Therefore, the State defendants are, along with
the Cleveland defendants, responsible for implement-
ing a remedy which will eliminate all vestiges of un-
constitutional segregation in the Cleveland public
school district.

500 F.Supp. at 422, 423, 425.

The state defendants responded to the District Judge’s
conclusions with two main arguments. First, they deny
prior knowledge of the segregative practices found by
the District Judge, mainly because no complaints were
filed before them. Second, they 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.

110

For six years (from 1956 to 1961) the state board
and the state superintendent waived minimum classroom
instruction limits by granting express exemptions to Cleve-
land school officials, enabling these to institute split ses-
sions which provided children with only three and a haif
hours of schooling instead of the required five hours. It
is a fact that the overwhelming majority of the schools in
Cleveland which thus provided less than the minimum
school time were virtually all black. Although the state
defendants denied knowledge of the number, identity and
racial composition of these schools, it is now evident that,
in addition to having access to this data at all times, they
requested this specific information about the schools to
which waivers were granted.

There is also evidence on the record that the state de-
fendants were made aware of the underlying causes of
racial tensions in overcrowded black schools; there is
evidence that the existence of the Richan report which
catalogued certain racially segregative actions of the
Cleveland school officials was made known to the state
Board of Education.

For these and other reasous' in this record, we find the
state defendants’ argument that they lacked knowledge of
unconstitutional segregation to be a disingenuous conten-
tion.

1Plaintiffs argued that official reports required for many years
by the defendant state board predecessors from every school
district concerning the existence of “separate schools for colored
children” were so indicative of knowledge of intentional segrega-
tive conduct on the part of the state board that such reports should
weigh heavily in the Cleveland case, although the Cleveland Board
consistently answered “None” on the report forms. The record here
is such as to require affirmance of the District Judge with or without
reliance on these reports. But see Penick v. Columbus Board of
Education, -—— F.2d ——— (6th Cir. 1981). (Nos. 81-3072, 3102,

slip opinion ——— 1981).

111

We turn now to the second argument advanced by
the state defendants, namely, that absent a legal finding
by a court, they had no duty to take action to end segrega-
tion in Ohio schools.

In early 1956, Mr. Charles Lucas, the only black mem-
ber of the State Board of Education, moved that the Board
withhold state funds from any school district that practiced
racial discrimination. The motion was defeated. He then
suggested that an opinion on the matter be sought from
the Attorney General of Ohio. This motion was also de-
feated.

In May of 1956, Mr. Lucas proposed the following
motion:

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 admin-
ister the schools within the framework of existing law,
and to regulate the admissions of pupils and to set up
the highest possible cientienl 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, cr

alty 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 racially

, or color under pen-

112

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.

This motion was also defeated but Lucas’ insistence
did finally secure a request from the Board to the Attorney
General concerning the Board’s authority to take action
concerning racial discrimination in Ohio's schools. The
answer written by Attorney General C. William O'Neill
(later to be Chief Justice of Ohio’s Supreme Court) was
unequivocal :°

1. The term “law” as used in Section 3317.14,
Revised Code, forbidding the distribution of state
funds to school districts which have not “conformed
with the law,” is used in the abstract sense and em-
braces the aggregate of all those rules and principles
enforced and sanctioned by the governing power in
the community. Such term embraces the equal pro-
tection provision in the Fourteenth 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,

*The full text of the Attorney General's Opinion is attached as
Appendix.

113

vresentation of evidence, degree of proof, and proce-
«ural 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” estab-
lished to the satisfaction of each board, order a dis-
tribution of funds to such district notwithstanding
such lack of conformity with the law.

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 provisions of Section 3317.14, Revised Code, must
be deemed to apply.

1956 Op. Atty. Gen. Ohio 514, 520-521, 518.

We do not know how more specifically the defend-
ants could have been instructed on their duty, under both
state and federal law, to require the schools they were
helping to finance, to desegregate any schools which had
been intentionally segregated and to withhold state finan-
cing from systems which refused. This record shows that
in the history of Ohio, defendants never fulfilled that duty.

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
Cleveland Board’s intentional school 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

114

school districts (including the Cleveland Board of
Education ) “has conformed with the laws.”

3. The State Board never, in relation to Cleve-
land, 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 district.”

4. To the contrary the record shows that the
State Board tunel to support the Cleveland
Board’s activities including (among others) financing
racially segregated teaching staffs, segregated schools
and discrimination in sharply reduced educational
programs in black schools as compared to white
schools.

5. The motivation (and the effect) of the State
Board on this total record must be held to be the per-
petuation of racial segregation.

6. The incremental effect of the State Board's
actions and inaction is the total failure of compliance
with the constitutions and laws of the United States
and of Ohio in the performance of the duty to elimi-
nate racial segregation in the Cleveland School sys-
tem.

The judgment of the District Court is affirmed.

xipuaddy

115

APPENDIX
Columbus, Ohio, July 9, 195

Mr. R. M. Eyman, Executive Secr

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1092%3A0. Public record. Not legal advice.