# Appendix — School District of Omaha v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1566%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1975 - **Citation:** 423 U.S. 946 ## Text . , FILED AUG 21 1975 .) \ LO OORT Cheek | In The Supreme Court of the United States October Term, 1975 + teeeeeeeeeen THE SCHOOL DISTRICT OF OMAHA, STATE OF NEBRASKA, et al., Petitioners, vs. UNITED STATES OF AMERICA, and NELLIE MAE WEBB, et al., Respondents. ray Vv APPENDIX TO PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ty. ae Kennetu B. Hot GeRALp P. LAUGHLIN MicuarL G. LessMaANN Daviv M. Peprersen Barrp, Hotm, McKacuen, Pepersen, Hamann & Haaearr 1500 Woodmen Tower Omaha, Nebraska 68102 (402) 344-0500 Attorneys for Petitioners COCKLE PRINTING CO., 1822 St. MARY'S AVE., OMAHA on” pe aaa ES PILI In The Supreme Court of the United States October Term, 1975 No. 00... 0 : THE SCHOOL DISTRICT OF OMAHA, STATE OF NEBRASKA, et al., 4 Petitioners, vs. UNITED STATES OF AMERICA, and NELLIE MAE WEBB, et al., Respondents. APPENDIX TO PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT Se A Re NE ae a aE Le Le OF APPEALS FOR THE EIGHTH CIRCUIT : o a INDEX t Pages g District Court Memorandum Opinion On Motion e For Preliminary Injunction 00. atlaapisschiantaabites 1 District Court Order On Motion For Preliminary Injunction ath Me oe ly a SA District Court Memorandum Opinion On Motion ; RAC Uae oe Se CN | | : District Court Order On Motion To Intervene 40) : District Court Memorandum Opinion On The Merits. 41 ; = ROE 2 | Se 5 Ra GRO, re = CPPS Ie Pa FIRE PER TRGS EPHR EE FE AN LER AIL ERD EME ALE EF ELI TS ES ES 7 il INDEX—Continued Pages District Court Order On The Merits 99 EKighth Cireuit pata ranilehionied Decision On The Merits Ne REE ae sci lssiaedaeee Kighth Cireuit eae ietoesteat et Kighth Cireuit Order On Petition For ebsites ee 136 Eighth Cireuit Order On Motion To Reeall And BN UNO tcc ptceren etter 137 Kighth Cireuit Amended Judgment. ...... 138 i PP PSEA LILI LENT EIA LEED IY UPL PEI EIGER EGIL LOOM PCE ROBE ROS ALS OE ET RORIET. URR AMEL EBS pee ot Tl aE ROE IEEE CAS LIRA OE IOSD IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA CIV. 73-0-320 UNITED STATES OF AMERICA, Plaintiff, Vs. THE SCHOOL DISTRICT OF OMAHA, STATE OF NEBRASKA, et al., Defendants. MEMORANDUM OPINION (Filed October 26, 1973) This matter is before the Court on the motion of plain- tiff for a preliminary injunction pursuant to Rule 65, Federal Rules of Civil Procedure. oe Ou BU OR ER TT EGY REO SCOR ROPES ALTOS RAMEE LBS UA SITE SG IAT AOE 2B NY SS Sy 5 ¢ 17 at the time that Mason was converted to a K through 6 institution, and its seventh and eighth graders were assigned to different areas. All the evidence taken together would seem to show that the use of these optional zones may have had some segregative effect, but the question remains whether segregative intent is a valid inference. GRADE STRUCTURES This particular area is somewhat related to that of the optional zones. The district started developing plans for a junior high system in the 1950’s with Monroe Junior High. This was followed by Norris, Indian Hills, Horace Mann, McMillan and Lewis and Clark. Technical Junior High was designated as such in the early 1960's, The district’s policy is that of phasing out all K-8 facil- ities. During the school year 1964-65, there were certain elementary schools that still had K-8 and, therefore, were not assigned to any junior high schools. They are as follows: Jackson (.3 per cent black); Mason (3.7 per cent black); Pershing (0 per cent black); Sherman (.5 per cent black); Walnut Hill (2.5 per cent black); and Yates (.3 per cent black). By consulting the exhibits concerning elementary school attendance areas, one can see that all of these schools were in the general vicinity of Tech Junior High and the Franklin, Clifton Hill areas, Of the schools above mentioned that were still K-8 in 1964-65, Walnut Hill converted in 1967-68 and it started that school year with 98.2 per cent white. The students eligible for junior high in Walnut Hill were given options to attend Lewis and Clark, Norris or Tech as pointed out above. Saunders converted in 1964-65 when it was 100 per cent white and was given similar options to attend Lewis and Clark, Norris or Tech Junior High. Mason 5. Kindergarten through eighth grade. NEDO PE tt ED a in ae Bee 18 was converted in 1965-66 at which time it was 97.3 per cent white and had options to attend Bancroft, Norris or Lewis and Clark. Plans were made to convert Yates for the school year 1969-70 (when it was predominantly white) but due to opposition from various parents, it was continued as K-8 for another year. This plan to convert Yates was apparently just a proposal when the various parents spoke against it, and the following year, 1970-71, the seventh and eighth grades were closed, even though there was some continued protest that it not be closed. Jackson, Pershing and Sherman are elementary zones that still have seventh and eighth grades and, hence, no options. Central Park, Monmouth Park and Miller Park all converted in 1958-59 at which time they were 100 per cent white and they were not given options but were assigned specifically to McMillan Junior High which was then 100 per cent white and continnes to be a predomin- antly white school. The government’s position is that since there were a number of predominantly white schools in an area around Tech Junior High and Horace Mann Junior High (both majority black) that were still K-8 schools as late as 1964-65, there is an indication that the district was allowing the students in those predominantly white ele- mentary zones to stay there two years longer rather than directing them to exercise an option to attend Tech Junior High or some other school zone that was pre- dominantly black. Its position is also based on the fact that the elementary zones that converted most recently were those surrounding the black areas in Omaha and thus it infers that this was a final holdout in an attempt to allow elementary school zones to keep themselves and their predominantly white enrollment together and not force children to attend junior high schools which would probably be in an area with a greater black percentage than were their elementary zones. The district contends that the conversion from K-8 to K-6 is historically a gradual process. It maintains that the conversions to K-6 facilities in the district have not rem Re Sr ene oi _ ome _ sacem ae acaomds T Red LU OLY Ae OIE EE ORLA EE OLER AL LEGS LD BEADS PEA LLABN GALA. ALE ALB DELI AELI. PALI LE EF Sei eae? ‘edie 19 been managed in such a way as to increase or encourage segregation and attempts to show a logical basis for such late conversions by evidence to the effect that the schools in question were ones which were to have been assigned to a number of junior highs in the City that were eventually not constructed and thus were converted only when the decision not to construct those schools was finally made. These junior high schools were: (a) a central city junior high school which was to be located essentially south of the business district in Omaha; (b) one on Western Avenue, located some twelve blocks north of Dodge Street, the main east-west street in the City of Omaha, running from 50th Street to 78th Street, from 83rd Street to 90th Street, and from 90th to 96th Street (this latter junior high school later merged into Lewis and Clark); (c) a junior high in Miller Park, the site for which the district failed to acquire and which ultimately merged into what is now McMillan Junior High located in the northern part of the district and on the eastern boundaries thereof (the building of MeMillan at. this place isolated the Sherman elementary zone which is located just directly east and adjacent to the McMillan zone and the Pershing zone which is located to the south- east of Sherman and directly south of the Omaha Eppley Airfield; this would seem to explain the reason why these two schools have not yet been converted from K-8 to K-6); (d) a junior high along Paxton Boulevard, which runs between 31st and 32nd Streets in the northern part of Omaha, which was not built because of changing con- ditions and circumstances. TRANSFER POLICIES In addition to the fact that Tech High School and Central High School are ‘‘open’’ schools,® and in con- 6. This means generally that students of high school age who do not live in those zones have a choice of going to those high schools if they choose to do so. The students who live in the Tech or Central zones, however, must attend the high school in their respective zone. : 7 z EGS AES SENG GAO LN 4g SPO yg PNET OF PR EADIE TET OIE LG IETS EAL TA NED 1 20 junction with the optional zone policy which was dis- cussed, supra, the district also has another method by which students can attend areas other than those in which they live and those which may be closer to their homes. This method is commonly referred to as the ‘fopen transfer’’ policy, which was introduced into the system in 1964 during the administration of Doctor Paul A. Miller, who was then Superintendent of Schools. It resulted from the study and recommendation of a bi- racial committee which was appointed by the Mayor of Omaha in the Spring of 1963. The following conditions govern the ability to transfer from the zone of residence to another school: (1) The achievement level of the pupil requesting transfer shall equal the average level of achievement of the pupils in the grade in the school to which the transfer is being requested. (2) The school to which the pupil is transferring cannot be an overcrowded school. (3) Transportation of pupils is the responsibility of the parents. (4) The transfer request must be in writing on an individual basis. (5) Permission to transfer shall not be granted until enrollments are ascertained. Prior to the adoption of this policy, transfers were allowed only for reasons of health or hardship. Students could not transfer for the reason that the student did not want to attend a school with black pupils, or because he felt that he was going to an inferior school or because the educational progress in another school was superior in his opinion. The primary and stated purpose of the open transfer policy of 1964 was to encourage and up- grade the academics of the school system. The program was viewed as having no connection with segregation or integration. To utilize this policy, parents make written request for transfer which request is placed on file with the particular school which is desired. The district then communicates with the principal of the school in question to determine the space and specific problems involved and also communicates with the parents to suggest alter- native methods if space is not available or if for some reason transfer cannot be granted. Aside from the five determining factors set forth above, other considerations include special education or medical problems. In addi- tion, the administration of the school also looks to prob- lem situations or learning situations and may grant a transfer in a situation where a student may stand a hetter chance to sueceed in the transferee school. Finan- cial hardship cases are also considered. The transfer request forms do not include a space for designation of the race of the applicant. However, the district does maintain records which happen to show the race of some students and at times there are interviews by the administration with the parents of the student requesting the transfer. Approximately one-third of the transfer requests are dealt with on an interview basis. Additionally, the transfer request forms have a space for the requesting party to indicate any reasons as to why the request is made. There was testimony that these reasons are not necessarily taken into account in the granting or denying of transfer requests, but they are often utilized in hardship cases. This is a matter of practice, not of any standard policy. Once a student obtains a transfer to a particular school, he must re-apply for a transfer if he desires to attend that particular school, or another outside his attendance zone for the next year. If he wishes to choose another school available to him under an option (other than the one initially chosen) he must likewise obtain a special transfer. The same procedure is applicable in the case of high school level transfers. At the time this transfer policy was introduced there was some evidence of opposition from members of the ES are oar} ae SE etre ares I ePID Ro es aaa minority race that this program would work against the poor and the black students because of the requirement of equal achievement and the parents having to transport their children. Additionally it was argued that the re- quirement that the size of the class in the receiving school be no larger than the size of the class of the transferor school would have an adverse effect due to the fact that the inner-city school classes generally were smaller than others pursuant to school policy. However, Dr. Miller testified that he knew of no in- stance where a transfer was denied on the basis of achievement levels during his tenure except for situations where an individual who needed a special education class attempted to transfer from a school that employed such classes into a school which did not. He further testified that the ultimate purpose of the policy was to encourage transfers into better schools for all children concerned. As to the actual results of this transfer policy, the gov- ernment introduced Exhibits 26, 26A, B, and C, which purport to represent certain transfer requests by black and white students out of majority black schools into pre- dominantly white schools during the school year 1970-71. (There was considerable controversy over the founda- tional soundness of these exhibits.) Plaintiff’s Exhibit 26 indicates that there were white transfers allowed out of black schools into predominantly white schools specifi- cally for racial reasons, as well as others. However, the exhibit does not include transfers by white students from a majority white school to another majority white school which is less white than the school to which he had been originally assigned. Also there were no computations as to the number of white students transferring from majority white schools into majority black schools. The testimony of a government attorney who participated in examining the school records and photographing them, one William C. Graves, indicated that the rule of thumb followed in preparing the exhibit was to separate out any requests that may have had a potential racia] effect, either segregative or desegregative. At the time the BOS ETRE STINE, I, DOP SES ANE AE, col a te . . a Ke Mare rte mae PRAY PEER PEIRE ESE LEI E LEP LOL LCL CL LI LONIE EE DLE V0 RINE A OG PE ADL HS ELD LPO AIO Ab NESE POLE LI LEON. 23 government witnesses were looking through this file, they had no idea as to the race of the children involved and they later attempted to correlate the race with the students. Graves explained that they photographed transfers from majority black into majority white schools and from majority white into majority black schools and additionally noted any transfer requests that were ap- proved which appeared to consider a racial reason, no matter what the schools were. He testified that they also considered those requests which were denied and which had listed a racial reason. The district’s evidence on this question indicated that certain portions of Exhibit 26 were substantially less than accurate, specifically those sections dealing with the transfers of black students from mxjority black schools to majority white schools. The district pointed out that there were a number of transfers from black schools to Benson West school. The transferor schools in this case were Holy Name, which is located in Franklin and Clifton Hill attendance zones, and Kennedy elementary school, which is a majority black school, as well as others. (See defendants’ Exhibits 21 through 38.) The government’s research analyst, Cindy Aleksa, testified from her notes that apparently no photographs were taken of any transfer requests to Benson West. There were 24 to 25 students involved in these transfers from black schools to majority white Benson West, and therefore, Exhibit 26, page 10, which indicates the total black transfers out of elementary schools to predominantly white schools in 1970-71 is claimed to be inaccurate by 50 per cent. The district also pointed out that some of the dates in Exhibit 26 were misleading and failed to include situations where the school district denied transfers for racial reasons, as where a white mother in Clifton Hill sought a transfer for her child to Fontenelle Park and gave as a reason the fact that more white girls would be in Fontenelle Park for her to associate with. This request was denied. Thus, there were certain discrepancies pointed out in Exhibit 26 regarding the number of black students who ULE ENON T ATTN LLAR DLA LECT INSEE SARE He on | . SEN DAVES AE TRE OS I CI EOS So 24 were allowed to transfer to predominantly white schools and regarding the nature of the transfers which were allowed from black schools to majority white schools. Although the evidence shows: that black students were granted transfers on nearly as equal a percentage as were white students, and that black students did transfer to white schools, it also appears that some black students were denied access to a majority white school (Lewis and Clark) for the school year 1970-71 for the reason that it was overcrowded, whereas at the same time some white students were allowed to transfer from majority black schools into that school. It would appear that Exhibit 26 has some probative value for the government’s contentions as to the transfer issue but that the exhibit is incomplete and inconclusive. This issue should be better investigated and thoroughly presented at trial where the exhibit can be comprehensive and the evidence in connection therewith fully developed by both parties. INTEGRATION Some integration of school children has occurred in the school district over the past years. In some of the predominantly black schools in the district, the member- ship of black students declined from 1967-68 to 1972-73 (defendants’ Exhibit 48). Furthermore, the evidence shows that although there has been an increase in the number of schools with a predominantly minority en- rollment (80 per cent or more), the total percentage of the total minority attending those schools has dropped 20 per cent since 1962. Additionally, schools with some minority enrollment have increased noticably in the last ten years and, in 1972, 45 per cent of the total minority students attended majority white schools (defendants’ Exhibit 4). Although this reference to ‘‘minority’’ in- cludes Orientals, Indians, and Spanish surnamed Ameri- cans, as well as black students, it does show a trend of some integration occurring in the district since 1962. — ne eT ee a * PELE OI LE LO OOC LG RINE LE ge REE ee ee s Sy ne BALTES ES TSE 2 ED EIR OE REALE CONCLUSIONS OF LAW The relief requested by the plaintiff, to wit: a pre- liminary injunction, is traditionally viewed as relief of an extraordinary nature and does not purport to be a disposition of the matter on its merits. An injunction, since it is viewed as an extraordinary remedy, is not routinely granted. Yakus v. United States, 321 U.S. 414 (1944); Sierra Club v. Hickel, 433 F.2d 24, 33 (8th Cir. 1970) aff’d, 405 U. S. 727 (1972); Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319, 323 (2nd Cir.), cert. denied, 394 U.S. 999 (1969); Huron Valley Publishing Co. v. Booth Newspapers, Inc., 336 F.Supp. 659, 661 (E. D. Mich. 1972). As stated in Benson Hotel Corp. v. Woods, 168 F.2d 694, 696 (8th Cir. 1948): “The application for such an injunction does not involve a final determination on the merits; in fact, the purpose of an injunction pendente lite is not to determine any controverted right, but to prevent a threatened wrong or any further perpetration of injury, or the doing of any act pending the final determination of the action whereby rights may be threatened or endangered, and to maintain things in the condition which they are in at the time... until the issue can be determined after a full hear- ing.’’ See also Hamilton Watch Co. v. Benrus Watch Co., 206 F. 2d 738, 742 (2nd Cir. 1953); Perry v. Perry, 190 F.2d 601, 602 (D. C. Cir. 1951). This Court soundly supports the foregoing view of the nature of such preliminary relief. Due to the time factor involved in the present situation, and in the majority of the situations where this type of remedy is pursued, it is not the province nor the design of this Court to provide a finding on the ultimate issues of law and fact at this time. Such a finding should be made only after all parties have had ample opportunity to employ the liberal discovery processes offered by the Federal Rules and to Sas NP Re otherwise prepare the matter in detail for presentation to this Court in a manner conducive to sound and de- liberate legal determination. With the foregoing in mind, the Court will proceed to analyze the present issues within these legal concepts. The granting or denying of injunctive relief at the preliminary stage of any matter requires the considera- tion of a number of varying factors. The two that pre- sent the starting point in any such determination are (1) the question of ultimate suecess on the merits; and (2) irreparable harm to be suffered by those seeking such relief in the absence of the same being granted. The Kighth Cireuit Court of Appeals has recently held that when viewing the first of these factors, the Court must determine whether the movant, herein the Justice De- partment, has sustained its burden of showing ‘‘ substan- tial probability of success at trial.” Minnesota Bearing Co. v. White Motor Corp., 470 F. 2d 1323, 1326 (8th Cir. 1973). In assessing the relative merits of a prayer for injunctive relief, the following formulation of factors to be considered within the two foregoing major considera- tions is instructive: (1) The significance of the threat of irreparable harm to plaintiff if the injunction is not granted; ‘**(2) The state of the balance between this harm and the injury that granting the injunction would inflict on defendant: ‘**(3) The probability that plaintiff will succeed on the merits; and **(4) The public interest.”’ 11 C. Wright and A. Miller, Federal Practice and Procedure, Section 2948 at 430-431 (1973). See e. g., Kansas-Nebraska Natural Gas Company v. City of St. Edward, 135 F. Supp. 629 (D. Neb. 1955) (Dele- hant, J.). Cf. Middle West Motor Freight Bureau v. United States, 433 F. 2d 212, 241 (8th Cir. 1970), cert. denied, 402 UV. S. 999 (1971). PROBABILITY OF SUCCESS The Court has carefully studied the cases cited by both the district and the government in their respective briefs, as well as other cases, in the area of school segregation. Certain general and well-known principles seem to be clear. De jure, or deliberate, racial] segregation in public schools is violative of the equal protection clause of the Fourteenth Amendment of the United States Constitution. Brown v. Board of Education, 374 U. 8. 483 (1954). In order to support a finding of de jure segregation, it is not necessary that there be complete separation of the races. The actions of a school board may be sufficient to con- stitute de jure segregation without being based on a state law, or even if they are in derogation of state law forbid- ding segregation. United States v. Board of School Com- missioners of Indianapolis, Indiana, 332 F. Supp. 655 (S. D. Ind. 1971), aff’d, 474 F. 2d 81, 83 (7th Cir. 1973), cert. denied, 41 U.S. L. W. 3673 (June 25, 1973). A neighborhood school plan is not unconstitutional per se and is permissible if impartially maintained and administered, even though the result is racial imbalance. Umted States v. Board of Education, Independent School District No. I, Tulsa County, Oklahoma, 429 F. 2d 1253 (10th Cir. 1970), aff’d after remand, 459 F. 2d 1253 (10th Cir. 1972), vacated and remanded on other grounds, 41 U.S. L. W. 3671 (No. 72-190, June 26, 1973). A school district has no affirmative obligation to achieve a bal- ance of the races in the schools when the existing imbal- ance is not caused by school policies and is the result of housing patterns and other forees over which the school administration has no control, but it does not follow from the absence of a duty to achieve racial balance that a Board may deliberately select sites to achieve racial segre- gation. Davis v. School District of the City of Pontiac, 309 F. Supp. 734 (E. D. Mich. 1970), aff'd and remanded, 443 F. 2d 573 (6th Cir.), cert. denied, 404 U.S. 913 (1971), vacated and remanded in part, 474 F. 2d 46 (6th EA FR ID OIE AALS TIAN EE ATA MB TIME a A A ML SANG ah NF 28 Cir. 1973). Deal v. Cincinnati Board cf Education, 369 F. 2d 55 (6th Cir. 1966), cert. denied 389 U. S. 847 (1967), aff’d after remand, 419 F. 2d 1387 (6th Cir. 1969), cert. denied, 402 U. S. 962 (1971). If residential racial dis- crimination exists, it is immaterial that it results from private action. In some cases the school board still can- not build its exclusionary attendance areas upon private racial discrimination. United States v. Board of Educa- tion, Independent School District No. 1, Tulsa County, Oklahoma, supra. If a neighborhood school policy is formulated with no intent or purpose to maintain segre- gation or to segregate, then no constitutional duty exists to desegregate even if racial imbalance exists. There is no affirmative duty to change school attendance districts by the mere fact that shifts in population either increase or decrease the percentage of either black or white pupils. Bell v. School District, City of Gary, Indiana, 324 F. 2d 209 (7th Cir. 1963), cert. denied, 377 U. S. 924 (1964) ; Downs v. Board of Education, 336 F. 2d 988 (10th Cir. 1964), cert. denied, 380 U. S. 914 (1965). A school board may not purposefully tailor the com- ponents of a neighborhood school attendance policy so as to conform to the racial compositions of the neighbor- hoods and its school district, nor may it build upon pri- vate residentia) discrimination. Spangler v. Pasadena City Board of Education, 311 F. Supp. 501 (C.D. Cal. 1970) ; United States v. School District 151 of Cook Coun- ty, IUinois, 286 F. Supp. 786 (N. D. Ill.), aff’d, 404 F. 2d 1125 (7th Cir. 1968). Acts of omission can be as serious as acts of commis- sion where a Board of Education has contributed to and played a major role in the development and growth of a segregated situation and could support a finding that the Board is guilty of de jure segregation. Davis v. School District of Pontiac, supra, 309 F. Supp. 734. The decision of where or where not to construct new schools when combined with one technique or another of student assignment may very well determine the racial weston at : PM fe SET pete - ie LEED SFIS Oe = = aes Th - i —— ” me Se SEE EE EO II = PEI OIE, AE IEE La A+ Bas Pap GEERT EGRET HEELS comnntecunmaurceeanmema 29 composition of the student body in each school in the system. People tend to gravitate towards school facilities just as schools are located in response to the needs of the people. Swan v. Charlotte-Mecklenberg Board of Educa- tion, 402 U. S. 1 (1971). In this connection, open trans- fer policies are not in themselves unconstitutional. How- ever, where the intended and inevitable effect of such a policy is to aggravate and increase racial segregation, ac- tion should be taken to eliminate those segregative effects. Monroe v. Board of Commissioners, 391 U. 8. 450 ( 1968). The practice of a school district in its assignment of faculty members on the basis of race, in such a manner that those faculty member assignments allow the school to be recognized and considered a ‘‘black’’ or ‘white’? school, is not consistent with the protection of the Four- teenth Amendment. Swan v. Charlotte Mecklenberg Board of Education, supra, 402 U. S. 1; Kelly v. Altheimer, Ar- kansas Public School District, 378 F. 2d 483, 498-499 (8th Cir. 1967). The recent pronouncement by the Supreme Court in Keyes v. School District No. 1, Denver, Colo., 41 U.S. L. W. 5002 (June 21, 1973), requires that the government must prove not only that segregated schooling exists, but also that it was brought about or maintained by inten- tional action. The following quote from a recent case of Booker v. Special School District No. 1, Minneapolis, Minn., 351 F. Supp. 799, 807-808 (D. Minn. 1972), sets forth what this Court believes to be the general rule and the outline, of proot necessary to demonstrate a violation of the Fourteenth Amendment: ‘*However, it is beyond dispute that: (a) if the state and/or the school administration has taken any action with a purpose to segregate, and (b) if that action has had the effect of creating or aggravating segregation in the schools of the Dis- trict, and 30 (c) if segregation currently exists, and (d) if there is a causal connection between the acts of the school administration and the current con- dition of the segregation, then there is segregation which is imposed by law; and such is prohibited by the Fourteenth Amendment to the Constitution.’’ This constitutes de jure segregation and is violative of the Fourteenth Amendment. The evidence presented by the government has been primarily designed to show specific acts of the school dis- trict, to wit: transfer policy, attendance zones, teacher assignment, school site location and portable classrooms, in an attempt to demonstrate that these particular acts have a bearing on the intent of the school distriet when the results of those actions are determined. To be sure, the cases cited by the government and those found by the Court’s independent research indicate that these factors in the proper context are indicia of segregative intent. However, the Court also notes that there is evidence pre- sented of reasonable school-related reasons for introduc- ing and implementing such plans and in the absence of findings at this stage of segregative intent, no affirmative duty attaches to the school district. The finding of seg- regative intent necessarily requires the Court to infer such intent from certain objective acts. This is not easily done and cannot be done or justified in the state of the present record. The fact finding process that this Court must undertake in determining subjective intent from ob- jective manifestations requires a full hearing on the merits. Therefore, although the Court at this stage might see a possibility of the government’s prevailing on the merits when the matter is fully tried, it does not find at this stage of the proceedings that there appears to be a substantial probability of ultimate success at trial. XG NP PION DIS NB LRA YA TOE LS MIM MNOS Te PAE ™ PDI NPD LEIS OVALE Be ANON I AO POR IEE ED | PRI + meget a a eat et er i 31 TIRREPARABLE HARM As pointed out above, the injury or harm that will oc- cur to the movant-plaintiff is of the utmost importance in the consideration of the relief now requested. However, the harm to be suffered by the opposing party is also properly considered. See, ¢. g., Penn Galvanizing Co, v. Lukins Steel Co., 468 F. 2d 1021, 1023 (3rd Cir. 1972); Sierra Club v. Hickel, supra, 433 F. 2d at 33; Congress of Racial Equality v. Douglas, 318 F. 2a 95, 97 (5th Cir.), cert. denied, 375 U. S. 829 (1963). The Court has at- tempted to determine and weigh the harm that will be suffered by all concerned if this injunction is granted or denied. The government rests its main contention of ir- reparable harm on the fact that a Constitutional right will be denied the children who are foreed to remain in segregated schools if the injunctive relief is not granted. It also contends that children will be forced to leave an integrated school, Monroe, and go to a segregated school, King. In addition, it maintains that irreparable harm will be suffered if King is allowed to be opened and stig- matized as a “black” school. On the other hand, the dis- trict maintains that at this late date, an injunction closing Martin Luther King or requiring it to be immediately in- tegrated, would require changes in student assignments, teacher assignments, and would require that many pupils return to Franklin and Clifton Hill, both of which were severely overcrowded before the construction of King. As to the transfer policy, the government maintains that all that would be required is that the students be returned to the school which they attended last year. In rebuttal, the district maintains that changing the schools which students will attend at this late date will create serious problems with parents who have provided for babysitters for their children in a certain area of their work; in- terrupt curriculum in the schools; interrupt extra-curricu- lar activities; and generally result in a state of confusion if relief must be administered before this coming Tuesday, September 4, 1973. EPR IE PEMD IE AE ENN MORIA MA 32 The Court is not unmindful of the fact that its deter- mination of irreparable injury to the respective parties must depend somewhat on its determination of the likeli- hood of success on the merits, As pointed out above, the government certainly indicates some possibility of suc- ceeding on the merits, but it has failed to prove a sub- stantial likelihood of success at this point. The Court finds that the harm to the district and all the children of the Omaha School District at this point, including the class which the plaintiff represents, would be greater than the harm in continuing ‘‘possible” unconstitutional segre- gation. The Court reaches this conclusion after careful deliberation and is aware of the possible injury or harm that may be incurred by the students if a violation of the Fourteenth Amendment is found to exist after a full hearing on the merits. On the other hand, at the present time, a granting of this injunction would require many students to return to portables and cottages used at Clif- ton Hill and Franklin where overcrowded conditions have clearly existed which King is at least in part designed to alleviate. Further, the confusion resulting by re- voking all the transfers given this summer would be mam- moth, as would the confusion with reference to the re- planning and re-programming of curriculum, extra-cur- ricular activities and teacher assignments. In addition to balancing the relative harms that would be suffered by the defendants or plaintiff and the class it represents in this suit, the Court when analyzing the granting or denying of a preliminary injunction, may also legitimately consider the public interest. Yakus v. United States, supra, 321 U.S. at 414. The Court finds that the public interest in opening schools on September 4, 1973, in a relatively unconfused and stable manner, is important to the children and may very well alleviate and cause less problems than would any purported segregated situation. In conclusion, this Court finds that the motion for a preliminary injunction should be denied. In doing so, it in no way indicates that the government does not have a GOGGEP IPL LLL NOR OP BELEN ITT PLONE AE LISELI Re EAE OD Fe ee ie TFs ™ ee " a —_ oe > Tos —— | 33 possibility of success at the trial herein. The denial stems from the evidence so far presented and in the record to date there has been no showing of substantial probability of success. In order to ascertain the intent of the dis- trict over the years in question, a full hearing on the merits is clearly required, so that this Court can carefully examine and weigh the facts within the context of their occurrence. As stated in Webb v. Board of Education of the City of Chicago, 223 F. Supp. 466 (N. D. Ill. 1963), which involved strikingly similar issues to the questions presented here: ‘‘It is not necessary for the Court to determine at this time the respective merits of these contentions. We need only note that substantial questions of fact are raised as to whether the segregation complained of is the result of an active and intentional design of the defendants.’’ Accordingly, plaintiff’s motion for a preliminary in- junction is denied, the order of denial being separately entered herein. By the Court: /8/ Albert G. Schatz, Judge, United States District Court IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA CIV. 73-0-320 UNITED STATES OF AMERICA, Plaintiff, vs. THE SCHOOL DISTRICT OF OMAHA, STATE OF NEBRASKA, et al., Defendants. 34 ORDER (Filed August 31, 1973) This matter coming on for hearing on the plaintiff's Motion for Preliminary Injunction, and the Court being fully advised in the premises, IT IS ORDERED, ADJUDGED AND DECREED that said motion be and the same is hereby denied; that a memorandum opinion containing the Court’s findings of fact and conclusions of law will be prepared and filed by the Court in accordance with this order, at a later date. DATED this 31st day of August, 1973. By the Court: /s/ Albert G. Schatz, Judge, United States District Court IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA CIV. 73-0-320 UNITED STATES OF AMERICA, Plaintiff, and NELLIE MAE WEBB, et al., Applicants for Intervention, vs. THE SCHOOL DISTRICT OF OMAHA, State of Nebraska, et al., Defendants. MEMORANDUM OPINION (Filed November 27, 1973) This matter is before the Court on motion for interven- tion, or in the alternative for consolidation, filed by the above-named applicants, in a cause pending before this Court since August 10, 1973. Applicants move for the entry of an order allowing their intervention as plaintiffs pursuant to Rule 24 (a) (2), Federal Rules of Civil Pro- cedure. Alternatively, applicants seek intervention pur- suant to Rule 23 (b) (2). In the event intervention is de- nied, applicants move that the Court consider the com- plaint filed by them as initiating a separate action and that the same be consolidated with the pending action pur- suant to Rule 42 (a). Applicants are black parents and their children who re- side within the Omaha Public School System. The chil- dren-plaintiffs attend schools in the system. The com- plaint filed by the applicants and attached with their mo- tion for intervention alleges that officials of the Omaha Public School System have engaged in racial diserimina- tion in the operation of the Omaha Public Sehools in vio- lation of the Fourteenth Amendment to the United States Constitution. On August 10, 1973, the Attorney General, on behalf of the United States, filed suit in this Court pur- suant to Title IV of the 1964 Civil Rights Act (42 U.S.C. § 2000e-6 (a) and (b)) against the Board of Education of the School District of Omaha, its members and the Super- intendent of the Omaha Schools. This complaint also al- leges, inter alia, that defendants have engaged in racial discrimination in the operation of the Omaha Public School system in violation of Title IV of the Civil Rights Act of 1964 and the Fourteenth Amendment to the Con- stitution of the United States. Applicants herein assert that they are entitled to inter- vene in the aforementioned suit filed by the Attorney General as a matter of right pursuant to Rule 24 (a) (2), supra. This Rule (intervention of right) provides that ‘“‘upon timely application, anyone shall be permitted to A DEIN LONI AEP IONE CAE RAT Oe DOIN EA 36 intervene in an action: * * * when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter im- pair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by ex- isting parties.”’ So far as this matter is concerned, Rule 24 (a) (2) es- tablishes three conditions for intervention of right: the applicant’s interest must relate to the property or trans- action which is the subject of the principal action; appli- cant must be so situated that the disposition of the main action may as a practical matter impair or impede his ability to protect that interest; and that applicant’s in- terest is not adequately represented by existing parties. The Court has no doubt that the claims of the applicants herein relate to the transaction which is the subject mat- ter of this action and that applicants are situated so that a disposition of the action herein may, as a practical mat- ter, impair or impede their ability to protect their in- terest. However, the Court finds that the motion to in- tervene, as a matter of right, must fail because of the third condition, supra. So far as adequacy of representation is concerned, the controlling rule is well settled ‘that representation is ade- quate if there is no collusion between the representative and an opposing party, if the representative does not have or represent an interest adverse to the applicant, and if the representative does not fail in the fulfillment of his duty.’’ Peterson v. United States, 41 F.R. D. 131 (D. Minn. 1966). See also Stadin v. Union Electric Co., 309 I. 2d 912 (8th Cir. 1962), cert. denied, 373 U. S. 915 (1963). All of these conditions have been met in this case. Clearly there has been no collusion between the existing parties, and indeed, there is no allegation or evi- dence of any collusion, or of any nonfeasance or neglect of duty. Further, the representative (plaintiff, United States of America) does not have or represent an interest adverse to the applicants-intervenors. Their respective — rat dee ROL Sethe Neat gage IR i eran OMe PAA ELLIE IY PAIS POS INE BERL IO . , 37 goals are neither conflicting nor potentially conflicting and both the representative-plaintiff and applicants pursue the same end result. Nor can it be said, and it does not ap- pear that the applicants seriously contend, that plaintiff has failed in any segment of its duty to assert the inter- ests that the intervenors would support. Counsel for plaintiff have acted vigorously and efficiently in this re- gard and the record thus far reflects diligence and thor- oughness. This Court has no doubt that applicants have been and still are afforded more than adequate represen- tation by the plaintiff.1 See United States v. Board of School Commissioners, Indianapolis, 466 F. 2d 573 (7th Cir. 1972), cert. denied, sub nom, 410 U. S. 909 (1973); Moore v. Tangipahoa Parish School Board, 298 F. Supp. 288 (E. D. La. 1969). Applicants urge a liberal interpretation and construc- tion of Rule 24(a) (2) and it would appear that the Courts in this District and the Court of Appeals for the Eighth Circuit have traditionally followed this view. How- ever, as stated in Peterson v. United States, supra, ‘‘ ‘lib- erality, however, does not equate with rights of indiscrim- inate intervention.’ The bounds of the Rule are to be observed. ’’ Alternatively, applicants pray for leave to intervene under Rule 24(b) (2), Federal Rules of Civil Procedure, providing for permissive intervention. This rule, as ap- plicable here, provides that upon timely application, any- one may be permitted to intervene in an action when the 1. “When intervenors claim they are not being adequately rep- resented by the Government, courts should be very hesitant to hold such representation inadequate, ‘at least in the absence of any claim of bad faith or malfeasance on the part of the Government * * *.’ Sam Fox Publishing Co. v. United States, 1961, 366 U. S. 683, 689, 81 S. Ct. 1309, 1313, 6 L. Ed. 2d 604: Blocker v. Board of Education of Manhasset, supra, 229 F. Supp. at 715. See generally, 4 Mioore’s Federal Practice, Par. 24.08." Moore v. Tangipahoa Parish School Board; 298 F. Supp. 288, 292, n. 10 (E. D. La. 1969). MEL ROL LEY BITE EF ELI DY PS BLE BEY TEED Peet ORE MP ERAN AREER Be RE eS RET HTN TITRE IMSAC A Aarne eat 38 applicants’ claim or defense and the main action have a question of law or fact in common. If these conditions are met, the trial court may, in its discretion, permit in- tervention if to do so would not unduly delay or prejudice adjudication of the rights of the original parties. It is beyond dispute that the claims of intervenors are based upon common questions of law and fact with the issues raised in the main action and, although not entirely prompt, the intervention sought here cannot be said to be completely untimely. Although the issues in the main action have been made up and drawn since September 18, 1973, and although a lengthy hearing has heretofore been held with regard to plaintiff’s motion for a preliminary injunction, and although discovery proceedings have al- ready been instituted, the longest portion of the road lies ahead. In view of these conditions having been met, this Court may permit intervention under Rule 24 (b) (2), supra, if to do so would not unduly delay or prejudice adjudication of the rights of the original parties, and in this connection the Court believes there will be no unduc delay nor will the presence of the applicants-intervenors interfere with or prejudice the rights of the present par- ties so far as an adjudication on the merits is concerned. It should be noted here that so far as discovery proceed- ings are concerned, the Court has already, as of the day the motion to intervene was heard, permitted the appli- cants to participate in any discovery which was to be ear- ried out pending this Court’s determination of whether to allow intervention herein. However, in permitting intervention under Rule 24 (hb) (2), which the Court is allowing, the intervention will be subject to the following conditions in order to protect the interests of the original parties and permit due and effi- cient administration of justice :? 2. Permissive intervention is often made conditional in order to protect the interests of the existing parties. See generally, SAP SISO IO IEE 4 x (Continued on following page) ERE Py PE TAS I LPC D ELIE EELS LCE GEL fE Pee 2 39 (1) Intervenors will not be permitted to assert any defenses or claims previously adjudicated by the Court; (2) Intervenors may not reopen any questions that have previously been decided by the Court; (3) All evidence heretofore adduced, prior to inter- vention, shall stand and be read as evidence bearing upon the existence and enforceability of the alleged rights and claims of intervenors, so far as pertinent thereto, and shall be considered by the Court in the determination of said rights and claims subject to such objections to said evidence as were made during the presentation thereof; (4) All evidence adduced in this cause prior to inter- vention and proof or disproof of points common to the alleged claims of the original plaintiff and intervenors shall stand as evidence, to be considered by the Court on such common points; (5) Discovery proceedings initiated or already com- pleted shall stand without duplication. It is, therefore, the order and ruling of this Court that the applicants’ motion to intervene as a matter of right is denied; that applicants’ motion for permissive interven- tion is hereby granted, subject to the conditions as set forth herein above; that in view of the Court’s ruling on applicants’ motion for intervention, it is unnecessary for the Court to discuss or determine applicants’ motion for (Continued from previous page) C. Wright and A. Miller, Federal Practice and Procedure. Section 1922 (1972); Stell v. Savanah-Chatham County Board of Education, 255 F. Supp. 88 (S. D. Ga. 1966); Knowles v. Board of Public Instruction, Leon County, Florida, 405 F. 2d 1206 (5th Cir. 1969); Galbreath v. Metropolitan Trust Co. of California, 134 F. 2d 569 (10th Cir. 1943); Mathieson v. Craven, 247 F. 223 (D. Del. 1917). y PRP See sas | Ce en eae od DAP DONT RS MO NP EER 40 consolidation under Rule 42 (a). A separate order is en- tered this day. By the Court: /s/ Albert G. Schatz Judge, United States District Court IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA CIV. 73-0-320 UNITED STATES OF AMERICA, Plaintiff, and NELLIE MAE WEBB, et al., Applicants for Intervention, Vs. THE SCHOOL DISTRICT OF OMAHA, State of Nebraska, et al., Defendants. ORDER (Filed November 27, 1973) This matter coming on for hearing on applicants’ mo- tion to intervene as a matter of right under Rule 24(a) (2), Federal Rules of Civil Procedure, or in the alterna- tive, to intervene pursuant to Rule 24(b)(2), of said Rules, or in the event intervention is denied, that the Court consider the complaint filed by them as a separate action for consolidation with the pending action pursuant to Rule 42(a), and the Court being fully advised in the premises, SEES PRIA LEN SLL LIE LOE LIELI EG EE ILE IE LI LOGE BERLE A PE 41 IT IS ORDERED that applicants’ motion for inter- vention as a matter of right pursuant to Rule 24(a)(2), Federal Rules of Civil Procedure, is denied; IT IS FURTHER ORDERED that applicants’ motion for leave to intervene under Rule 24(b)(2) is granted, subject to the conditions as set forth in the Memorandum Opinion herewith filed. It is unnecessary to discuss and determine applicants’ motion for consolidation under Rule 42(a). IT IS FURTHER ORDERED that defendants are granted twenty (20) days from the date hereof to respond to intervenors’ complaint filed herein. BY THE COURT: /s/ Albert G. Schatz Judge, United States District Court IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA CIV. 73-0-320 UNITED STATES OF AMERICA, Plaintiff, and NELLIE MAE WEBB, et al., Intervenors, VS. THE SCHOOL DISTRICT OF OMAHA, State of Nebraska, et al., Defendants. EGE DM POG AIP LLL LP YO OE SEL RSE Tete Tee rR Ce mE ee | MEMORANDUM OPINION (Filed October 15, 1974) This school desegregation case was filed by the United States on August 10, 1973, under the authority of 42 U.S.C. § 2000e-6 (a). Jurisdiction is also present under 28 U.S.C. § 1345. The defendants are the School Dis- trict of Omaha, State of Nebraska; the Superintendent of Schools for the School District; and the twelve mem- bers of the Board of Education for the School District. The plaintiff’s complaint alleges that the defendants have engaged in racial discrimination in the operation of the Omaha Public Schools in violation of Title IV of the Civil Rights Act of 1964 and the Fourteenth Amendment to the United States Constitution. The defendants deny that the Omaha Public Schools have been operated in a manner which discriminates against any students on the basis of race, and affirm the School District’s adherence to a racially neutral neighborhood school assignment pol- icy. The plaintiff’s complaint was accompanied by a mo- tion for a preliminary injunetion. A full evidentiary hearing was held, and the motion was denied, United States v. School District of Omaha, State of Nebraska, 367 F. Supp. 179 (D. Neb. 1973). Thereafter, certain black children attending the Omaha Publie Schools and their parents, representing a class of all other similarly situated black children and their parents, were permitted to intervene as plaintiffs in this lawsuit under Rule 24 (b), Fed. R. Civ. P., 367 F. Supp. 198 (D. Neb. 1973). The trial of this case was begun on March 4, 1974, and concludued on March 20, 1974. A schedule for the prep- aration of post-trial briefs and proposed findings of fact was established, and the entire matter was submitted to the Court on June 5, 1974. The Omaha Public Schools have never been operated under a statutorily or constitutionally required dual sys- tem. Therefore, the legal principles upon which claims BOUT SBOE EZ EP REELALERL IDLE LET OL INI I LEI IL E IS ENE LAD SPER DED OPI AL LI 43 with respect to this school system must be resolved are those set forth by the Supreme Court in Keyes v. School District No. 1, Denver, Colorado, 413 U. 8. 189 (1973). Under Keyes, a constitutional violation is found where: (1) There is a current condition of racial segrega- tion; and (2) This condition has been caused or maintained by intentional state action. There is no question here that the actions of the de- fendants constitute state action. Nor is it open to doubt that there is a substantial degree of racial imbalance with- in some of the Omaha Public Schools. The issue upon which this litigation is focused is whether the racial im- balance has been intentionally caused or maintained by the defendants. A determination of the intent of a person or a public body with respect to action or inaction on any question is necessarily difficult. In evaluating the evidence intro- duced at trial the Court has kept in mind certain prin- ciples concerning the finding of intent: (1) The burden of proof on this issue lies upon the plaintiff and the intervenors to show an intentionally seg- regative policy practiced in a meaningful or significant portion of the school system. The burden then shifts to the defendants to show that their actions as to any other segregated schools within the system were not motivated by segregative intent. Keyes, 413 U. S. at 208-9. (2) There are very few school desegregation cases in which the defendants admit segregative intent. Such in- tent must then be inferred from objective actions of the defendants. United States v. Board of School Commis- sioners of Indianapolis, Indiana, 474 F. 24 81 (7th Cir. 1973), cert. denied, 413 U. S. 920 (1973). (3) There is some dispute among the parties conecern- ing how the Court is to weigh the natural and foreseeable consequences of the defendants’ decisions to act or not to act in any given area. Prior to Keyes, it had been held that school boards were accountable for the natural and foreseeable consequene’s of their actions, regardless of in- tent or motivation, United States v. Texas Education Agency, 467 F’. 2d 848, 863-5 n. 25 (5th Cir. 1972). This view no longer appears to be the law in light of the Keyes emphasis on intent. The Ninth Circuit has specifically so held, Johnson v. San Francisco Unified School District, No. 71-1877 (Filed June 21, 1974); Soria v. Oxnard School District Board of Trustees, 488 F. 2d 579 (9th Cir. 1973). But the error reversed in Johnson and Soria was the re- jection by the trial courts of the importance of determin- ing intent, not the method of determining it. This Court is of the opinion that the natural and foreseeable conse- quences of the defendants’ actions are neither determina- tive nor immaterial, but rather constitute one additional factor to be weighed in evaluating the defendants’ overall intent. Oliver v. Kalamazoo Board of Education, 368 F. Supp. 143 (W. D. Mich. 1973). Il. BACKGROUND The defendant School District of Omaha has within its boundaries the majority of the City of Omaha, Nebraska, as well as a part of Sarpy County, Nebraska. A portion of Omaha in the southwest sector of the City is served by School District 66. The schools operated by the de- fendants, however, are commonly referred to as the Oma- ha Public Schools. United States census data show that in 1940 there were 12,015 black citizens in Omaha, com- prising 5.3 per cent of the population, By 1950 the num- ber was 16,311, or 6.5 per cent of the total. In 1960 it was 25,155, or 8.3 per cent, and in 1970, it was 34,431, or 9.9 per cent. By way of comparison, the percentage of black students enrolled in the Omaha Public Schools has increased from 6.6 per cent in 1940 to 9.4 per cent in 1950, to 14.2 per cent in 1960, to 18.6 per cent in 1970, and to 19.8 per cent in 1973-74. During the 1950’s, black persons in Omaha resided gen- erally in an area known as the Near North Side, bounded ee AEM Sh RT PIS Tis SEE LOTR LOLLY J OAS OE Lae ee Meee re ee 7 45 roughly by Cuming Street on the south, Wirt Street on the north, 33rd Street on the west, and Florence Boule- vard on the east. Census tract information is available which was compiled by the School District of Omaha as required by state law and which shows the concentration of black school age children, ages five through twenty, throughout the City on a seale of less than one per cent, one to twenty-five per cent, twenty-six to fifty per cent, fifty-one to seventy-five per cent, and seventy-six to one- hundred per cent. This information shows that in 1952- 53, the only elementary attendance zoxe with as high as seventy-six to one-hundred per cent black school aze children was the Long school zone. This zone sits almost directly in the center of the Near North Side. The only zones with fifty-one to seventy-five per cent black school age children were Lake, immediately to the northeast of Long, and Howard Kennedy, immediately to the north- west of Long. The only zone with twenty-six to fifty per cent black school age children was Kellom, immediately to the southeast of Long. Various other zones had one to twenty-five per cent black school age children, and they were scattered near the schools above mentioned and in the eastern and southeastern portion of the School Dis- trict. By 1959-60, there were seventy-six to one hundred per cent residential concentrations of black school age chil- dren in the Long, Howard Kennedy and Lothrop (im- mediately north of Lake) zones. Fifty-one to seventy- five per cent concentration resided in the Lake and Druid Hill (immediately north of Kennedy and west of Loth- rop zones). The only twenty-six to fifty per cent con- centration was again in Kellom. One to twenty-five per cent concentrations resided on the north and southwest fringes of the above-mentioned schools, in two isolated schools in the central portion of the District, and in a cluster of seven zones in the southeastern portion of the District. By 1969-70, there were seventy-six to one hundred per cent residential concentrations of black school age chil- | ry I Pt Tee ad SY: aD ae. 0 be 2 PH A le RT 46 dren in the Long, Kennedy, Lake, Kellom, Lothrop and Druid Hill zones. Fifty-one to seventy-five per cent con- centrations resided in the Monmouth Park (immediately to the northwest of Druid Hill), Saratoga (immediately to the north of Lothrop) and Franklin (immediately to the west of Long and Kennedy) zones. Twenty-six to fifty per cent concentrations resided in the Clifton Hill (immediately to the west of Franklin, Kennedy and Druid Hill), Central Park (immediately to the west of Mon- mouth Park) and Indian Hill (in the southeastern portion of the District) zones. Schools with one to twenty-five per cent concentrations generally bordered the above- mentioned zones. Thus, by 1969-70, the last year for which these census tracts are in evidence, there can be seen a definite increase in the concentration of black school age children residing in the northern and eastern portions of the District, including the area referred to in the 1950's as the Near North Side, and a gradual increase in concen- tration in the zones to the west and north of the Near North Side. Also, there was by 1969-70 a small but ap- parently growing concentration of black children resid- ing in the southeastern portion of the District. ll. ELEMENTARY SCHOOLS Kor the school year 1973-74, there were seventy-nine elementary schools within the defendant School District, serving 33,495 students, of whom 6,876 (or approximately twenty per cent) were black. -The elementary schools are the heart of the defendants’ neighborhood school policy. Geographic boundaries are drawn for each school and the students living within the boundaries of a certain school are expected to attend that school. The plaintiff and intervenors allege that in the ele- mentary schools the defendants have departed from the neighborhood school policy in two ways and that these departures have been made with segregative intent. They are: (1) The adding of capacity to relieve overcrowding (2) The alteration of attendance zones. SAMO RN I ea 47 (1) THE ADDING OF CAPACITY There have been periods in the operation of the Omaha Public School System in which many of the elementary schools have enrolled numbers of students in excess of the published capacities for those schools. The School Distriet’s response to these overcrowding problems has generally been either to increase the capacity at the existing schools by use of temporary classrooms, or to construct new schools (the discussion of which is found at page 42, infra.). The earliest use of temporary class- rooms by the defendant School District which is reflected in the record is in the early 1950’s, and the evidence shows an increasing use of temporary classrooms through- out the 1960’s and to the present time. Currently there are substantial numbers of temporary classrooms in schools with high black enrollments. However, there are also substantial numbers of such units in the far northern and western portions of the School District, in predomin- antly white schools located in predominantly white resi- dential areas. As diseussed earlier in this opinion, there has been a general shifting of the concentration of the black student population within the School District in the northerly and westerly directions from the area once known as the Near North Side. There has been no showing that the placement of temporary classrooms has corresponded to this shifting, and there is no support in the record for a conclusion that these units have been placed in certain schools for the purpose of containing black stu- dents in those schools The plaintiff and intervenors complain specifically of the placement of temporary classrooms at Franklin and Clifton Hill schools. These schools have adjacent atten- dance zones and are located in the north-central portion of the School District. The racial compositions of both schools have followed a parallel course: predominantly white throughout the 1950’s;! majority white in the mid- 1960’s; majority black in the mid-late 1960’s; currently predominantly black. Thus, the enrollments at these schools reflect the black residential shift mentioned earlier. Also, both of these schools began experienciny increasing enrollments in the early to mid-1960’s. The School District’s response was to supply these buildings with temporary classrooms. By 1971-72, Franklin was over-capacity by 317 pupils and had thirteen temporary classrooms, while Clifton Hill was 255 pupils over eca- pacity and had twelve temporary classrooms. The schools adjacent to Franklin on the south, southwest and west, are Yates, Saunders and Walnut Hill, respectively, which have always been predominantly white and which through 1971-72, had generally been under the published capacity. The schools adjacent to Clifton Hill on the west and northwest are Rose Hill and Fontenelle, re- spectively, which through 1971-72 were predominantly white and under capacity. The plaintiff and intervenors argue that substantial reductions in racial imbalance at all the above-mentioned schools would have resulted if the School District had restructed the attendance requirements for these schools (e.g, by redrawing boundaries or by reassigning grades of students), and that the failure of the School District to do so is evidence of segregative intent. The Court agrees that some restructuring was possible which would have increased a better racial balance at all these schools, and that by continued restructuring over the years, a substantial degree of integration could have been maintained. But it is also clear that at the time in question, this restructuring of enrollments, whether by the altering of attendance zones or by the shifting of grades between schools, simply was not a 1. Throughout this litigation the parties have used the term “predominantly” to refer to racial compositions in excess of sixty-five per cent. EMAAR INLAY IRN ACUI tC 49 method used by the School District to alleviate over- crowding. There is some evidence of such practices in the 1950’s and early 1960’s, but the amount of this restructuring was, even then, not substantial. By the mid-1960’s, it is clear that the School District emphasized use of temporary classrooms as the primary measure for dealing with increased enrollments. Further, the Court notes that the increase of capacity by use of temporary classrooms had an integrative effect for some schools. For example, from 1964-65 through 1972-73, the black enrollment at Miller Park increased from seven to 245 (1.1 per cent to 40.5 per cent) and the number of temporary classrooms increased from zero to ten. From 1967-68 through 1972-73, the black enrollment at Belvedere increased from 23 to 221 (2.5 4 per cent to 24.7 per cent) and the number of temporary : classrooms grew from zero to six. From 1962-63 through 1972-73, the black enrollment at Central Park grew from : three to 348 (.4 per cent to 46.9 per cent) and the number of temporary classrooms grew from three to ten. ; This evidence does not, of course, prove that the School District used temporary classrooms with an integrative intent. But it is some evidence that the Board acted with no racial intent at all, and this is precisely the Court’s conclusion. The evidence presentec simply shows that use of temporary classrooms was the School District’s choice for dealing with the overcrowding; that there was no pattern or design of placement of these classrooms on a racially discriminatory basis; and that, therefore, any segregative effects of the use of temporary classrooms were not intentionally caused or maintained by the de- fendants. FOES IIE ERIE SOD MO batt is (2) ALTERATION OF ATTENDANCE ZONES As mentioned previously, changes in elementary atten- dance boundaries have been infrequent in the Omaha Public Schools. There are two such changes, however, which the plaintiff and intervenors allege had a segrega- F EERE NRTA OEE TEDW NE FATT — 50 tive effect and which were made by the School District to achieve that effect. The first of these concerns Druid Hill and Monmouth Park Schools. Between 1957-58 and 1958-59, a portion of land just north and west of the Belt Line Railway was removed from the Druid Hill (majority black) zone and added to the Monmouth Park (predominantly white) zone. There is no way of determining the number of students involved in this transfer, nor their race, although an inference is permissible from other exhibits and evi- dence that this residential area was largely white. In any event, the adjustment is plausibly explained by the School District, and the Court finds that this explana- tion is devoid of any segregative intent: in the spring of 1958 a Druid Hill student crossing the Belt Line Rail- road tracks going home for lunch was nearly struck by a train. Thereafter, the portion of the Druid Hill zone across the tracks and nearest to Monmouth Park Schoo! was assigned to that school until 1965, when a cafeteria was installed in Druid Hill. The second boundary adjustment also occurred between 1957-58 and 1958-59, when a primarily white residential section of the Webster (majority white) zone was re. moved from that school and added to the adjacent Yates (predominantly white) zone. In 1959-60, the Webster seventh and eighth grades were removed from that school and assigned to Technical Junior High, which was rapidly becoming majority black. The seventh and eighth grades were retained at Yates. The plaintiff and inter- venors allege that this boundary change between 1957-58 and 1958-59 thus permitted white seventh and eighth grade students to avoid attendance at Technical Junior High. The facts, however, show no sudden increase in the Yates seventh and Eighth grade enrollment. The Yates grade to grade progression for the 1959-60 seventh and eighth grade students shows a relatively constant pattern—1956-57 fourth and fifth grades: 45 and 33: 1957-58 fifth and sixth grades: 44 and 36; 1958-59 sixth and seventh grades: 44 and 43; 1959-60 seventh and 51 eighth grades: 44 and 38. Thus, the Court concludes that few, if any, seventh and eighth grade students were thus excluded from Technical Junior High and that there was no segregative effect to this boundary change. In conclusion, the Court finds that these two instances of boundary changes were not prompted by any segrega- tive intent of the School District, and with regard to the Yates-Webster situation, the Court finds that there was not even any segregative effect. Ill. JUNIOR HIGH SCHOOLS The plaintiff and intervenors allege that the operation of the junior high system, especially as it concerns Technical Junior High and Horace Mann Junior High evidences segregative intent on the part of the Omahs School District. They further allege that this segrega- tive intent can be determined in three ways: (1) Through the initial placement of the junior highs and the establishment of elementary feeder schools for them; (2) Through the manner in which the elementary pro- grams were converted from K-8 through K-6, including the retention of some schools as K-8; (3) Through the establishment of optional attendance zones for some seventh and eighth grade students.’ 2. The plaintiff and intervenors also allege that in two instances the defendants deliberately formulated student assignment policies so as to avoid sending white students to Technical Junior High. The first of these concerns the defendants’ al- leged practice of sending white ninth grade students from the overcrowded Lewis and Clark Junior High past the Technical facility to Central from 1960-61 through 1962-63. The second concerns the failure of the defendants to provide Technica] High as an option for ninth grade students new to the City or entering the public schools from parochial schools, both of which dealt with certain limited areas of the School District. (Continued on following page) The plaintiff and intervenors argue that by these means the School District has concentrated black students in Technical Junior High and Horace Mann Junior High and has permitted white students who live near these schools to avoid mandatory assignment to them. The School District denies the existence of segregative intent, reaffirms its application of a racially neutral neighbor- hood school policy, and offers explanations for deviations therefrom. (1) INITIAL PLACEMENT AND FEEDER PATTERNS Prior to approximately 1950, the Omaha School Dis- trict provided instruction in two school settings, one for grades K through &, and another for grades 9 through 12. The junior high system, whereby grades 7 through 9 are offered and housed in a separate setting, was pro- posed to the Omaha Public School System as early as 1917, although no action on this proposal was taken at that time. The idea was revived in the 1951 Study of Plant Facilities and Requirements published by the Omaha Board of Education. Nine junior highs were pro- posed—one for each of nine geographical portions of the District. Some were to be housed in buildings to be con- structed, some in converted elementary facilities, and one (Technical Junior High) in a portion of a senior high school building. For the areas in which substantial concentrations of black school age children later came to reside, two junior (Continued from previous page) The evidence on these points is fa™ from clear, and does not establish that these were indeed the defendants’ practices. Moreover, there is no basis for determining the number of students, if any, affected by these alleged policies. The Court, therefore, does not consider them evidence of segregative in- tent. TET TERT ONE APE ORL LY RES PE, LP en 53 highs were proposed. The first of these was Technical Junior High, located on the site of Technical Senior High at 33rd and Cuming Streets, which was on the southwes- tern border of the area known as the Near North Side. The designated feeder elementary schools for Technical Junior High and their racial enrollments for the 1951-52 school year as compared to the 1973-74 school year are as follows: 1951-52 1973-74 White Black White Black Central Grade 431 5 107 21 Kellom 365 356 40 470 Lake 254 319 38 141 Long 0 433 32 355 Webster 223 122 Closed after ’68-69 Yates 367 0 196 50 TOTAL 1,640 = 1,235 413 1,037 The second of these junior highs was to be made by re- moving the elementary students from Druid Hill School and converting it te a junior high. The feeder schools and their racial enrollments for the 1951-52 school year as compared to the 1973-74 school year are as follows: 3. Long has been replaced by Conestoga. - LENA RIE ST eT ER HEN ENE SG AM a PRP PL TR CLS AGS Me RTOS MS TON POUL TORS De Re ER ene oe - eure 54 1951-52 1973-74 White Black White Black Central Park 566 0 307 351 Druid Hill 260 5d 35 308 Monmouth Park 400 0 98 353 Howard Kennedy 4 346 3 622 Lothrop 511 258 11 627 Saratoga 587 0 77 522 TOTAL 2,328 659 531 2,788 By 1955, none of these junior highs, with the exception of Technical Junior High on a limited basis, were in operation. The 1955 Study of School Enrollment and Plant Facilities published by the Omaha School Board proposed a new system of eleven junior highs. For the areas which then and later had substantial concentrations of black school age children, three junior highs were pro- posed. The first was again Technical Junior High, which had already received the seventh and eighth grades from Kellom and Central Grade Schools. The proposed feeder schools for Technical Junior High and their racial enroll- ments for 1955-56 as compared to 1973-74 are as follows: 1955-56 1973-74 ae ee a Bink Franklin 683 19 RO 554 Kellom 376 48] 40 470 Webster 227 118 Closed after '68-69 TOTAL 1,286 618 120 1,024 In place of the converted Druid Hill Junior High of the 1951 study, the 1955 study proposed a Paxton Boulevard Fa cdcceteeeme dd junior high. The proposed feeder schools and their racial enrollments for 1955-56 as compared with 1973-74 are: 1955-56 1973-74 White Black White Black Central Park 680 0 307 351 Druid Hill 241 175 35 308 Monmouth Park 537 98 353 Saratoga 649 3 77 522 TOTAL 2,107 178 517 «1,534 In addition to these, the 1955 Study also proposed a Near North Side junior high, to be erected on the north- ern edge of Adams Park, although the Board realized ac- quisition of park property would be difficult. The feeder schools for this junior high and their racial enrollments for 1955-56 as compared with 1973-74 are: 1955-56 1973-74 White Black White Black Howard Kennedy 41 726 3 622 Lake 312 508 38 141 Long 34 480 32 355 (Conestoga ) Lothrop 382 603 11 627 TOTAL 769 2,317 84 1,745 During the vears 1956-62, a number of junior highs were opened in the Omaha School District. Neither the Paxton Boulevard junior high nor the Near North Side junior high were among them. However, a new junior NE ALTE OK, TED NS 56 high was constructed near Twentieth and Pratt Streets, approximately five blocks north of the Near North Side. This School, Horace Mann Junior High, opened in the 1959-60 school year. The racial enrollment at Mann was 177 white and 443 black in that year and has been pre- dominantly black ever since. In 1958-59, McMillan Junior High, also in a new building, was opened at 38th and Redick Streets, to the north and west of Mann. It was completely white when opened but the percentage of blacks has steadily increased and in 1973-74, black stu- dents comprised thirty-six per cent of the enrollment. With respect to Technical Junior High, the foregoing paragraphs describe the planned feeder schools. How- ever, these plans never materialized. The actual evolu- tion of the Technical Junior High* zone consisted of the piece-meal designation of various elementary schools to Technical Junior High as follows: Year 7th & Enrollment at Enrollment at 8th Grades This School Technical Junior Assigned to for that Year High for that Technical Year Junior High White Black White Black Kellom 1950-51 402 350 66 76 Central Grade 1951-52 431 5 162 135 Long 1955-56 34 480 171 162 Franklin 1957-58 618 18 274 273 Webster 1959-60 143 111 363 323 4. After the School District converted to the K-6-3-3 system, the other junior highs eventually housed grades 7-9, and the senior highs grades 10-12, At Tech, however, the junior high has always housed only grades 7-8, while the senior high housed grades 912. Central, North and South High Schools also house ninth grade students. apse Ce DETALED PE Es CBRE PEE SRE TAS RENAE SS PSL SEE GLEE PE LAE DESDE ARENT RL AEN LIEB Sle EDEN AL TLE NEE LIN = ~ -1 On a geographical! basis, these five schools were the closest to Technical Junior High with the exception of Yates and the possible exceptions of Saunders and Wal- nut Hill, all of which were predominantly white from 1950 to the present. After 1959-60, enrollment at Technical Junior High was amplified only by its assignment as an optional junior high for certain elementary schools and the designation 3 of Yates as a feeder school in 1970-71. In 1960-61 and : 1961-62, Technical Junior High was majority white. In 1962-63, it turned majority black and from that point on, the percentage of black students has risen steadily, reach- ing over ninety-five per cent in the late 1960’s. The junior high program at Technical was closed after the 1971-72 school vear. With the exceptions described below, students are and have been assigned to junior high schools according to the neighborhood school policy. Geographic boundaries exist for each junior high which generally correspond to the boundaries of designated elementary schools near that junior high. Thus these elementary schools become feed- ers for the junior highs. In some cases the junior high boundary may not correspond exactly to the elementary school boundary, and two students who attended the same elementary school may be assigned to different junior highs. EINE LENE LT LOND CRETE S ie = «PI (2) CONVERSION FROM K-8 TO K-6 Most elementary schools lost their seventh and eighth grades to junior high schools during the 1956-62 junicr high construction. As of the 1962-63 school vear, there were sixteen elementary schools which were still housing the seventh and eighth grades. These schools were lo- cated across the entire middle and eastern portion of the School District, in both the north and south parts of the City, and in both the black and white residential areas. By the 1964-65 schceol year, only seven of these schools remained K-8. Feur of these seven, Jackson, Mason, BOSSY HTL Be AT Oyen Mts PRESET UO PBS le ORIN GAS IB EMS VOTING RAMEE) Me ji amg LEAL RLS PEP LIER LEO OE LAAT ELL EE OE LM SPATE LLIN IE rae ° s —— Ste thin cacti ee cota d8 Walnut Hill and Yates, were located such that the closest junior high was Technical Junior High. Two of the seven, Pershing and Sherman, were located such that the closest junior high was Mann. For the school years 1964- 65 through 1971-72 all six of these elementary schools had predominantly white enrollments, while Technical Junior High and Mann were both predominantly black.’ Aside from certain limited testimony concerning Yates School,® there is no direct evidence concerning the intent of the defendant School District in failing to convert any of the elementary schools from K-8 to K-6. For the years 1964-65, through 1971-72, the number of seventh and eighth grade students retained at these six elementary schools is as follows :’ 5. The seventh elementary school, Ashland Park, had a predom- inantly white enrollment but was located closer to junior highs other than Technical or Mann. It was converted to K-6 in 1965-66. 6. In early 1969, officials of the School District proposed re- aowing the seventh and eighth grades from Yates and as- Sa, / 1g these students to Technical Junior High, which was approximately five blocks away. In 1968-69 Yates enrolled 54 seventh and eighth grade students and its total enrollment was 317 white and 7 black, while the enrollment at Technical Junior High was 25 white and 616 black. Parents of Yates students attended a meeting of the Board of Education in the Spring of 1969 and expressed op- position to having their children attend junior high in a building that housed a senior high. The Board of Education permitted a one-year delay, and the Yates seventh and eighth grades were assigned to Technical Junior High beginning in 1970-71. 7. The racial composition of these seventh and eighth grades is unknown, although presumably it mirrors that of the school as a whole. During these years, each of the elementary schools was predominantly white in total enrollment. 59 1964-65 1965-66 1966-67 1967-68 1968-69 1969-70 1970-71 1971-72 SCHOOL Mason 90 Converted to K-6 Jackson 63 85 64 66 63 66 62 70 Walnut Hill 104 113 WW Converted to K-6 Yates 58 70 70 52 54 34 Converted to K-6 Pershing 110 103 87 70 55 49 52 50 Sherman 125 114 128 119 116 WwW 19 123 Of these six schools, only Sherman and Pershing at any time had enrollments in excess of their building capacity, and never to a serious degree. On the other hand, Tech- nical Junior High and Mann consistently had enrollments somewhat below published capacity : SCHOOL 1954-65 1965-66 1966-67 1967-68 1968-69 1969-70 1970-71 1971-72 ©— 6 6 6 ee 2 ee eee ee Technical , Junior High 653 795 630 795 667 795 637 795 641 795 641 795 598 795 606 795 Mann 1000 1380 10511380 986 1380 880 1380 819 B80 827 1380 832 1380 882 1307 With respect to the four elementary schools closer to Technical Junior High the only zone from which transpor- tation to Technical would be difficult is Mason, where, due to the commercial and highway development separat- ing these areas, transportation would have posed a serious problem. PORE LAP ALE With respect to the two elementary schools closer to 7 Mann, the situation is somewhat different. The Pershing and Sherman zones are relatively isolated from the rest of the School District in the northeastern corner thereof, ———————————— ee ' sae "3 apie isee 3 — 60) in areas sparsely populated and containing increasing commercial and industrial development. The driving dis- tances between the Sherman and Mann buildings is 1.7 miles, but the distance is greater for most of the Sher- man zone. The driving distance between the Pershing and Mann buildings is 3.1 miles. The isolation of the Pershing and Sherman zones was recognized by the School District in the 1955 Study of School Enrollment and Plant Facilities, in which it was recommended that a separate, smaller-than-usual junior high facility be built at Sherman School to accommodate both Sherman seventh and eighth grade students and those from the expected annexation of East Omaha (served by Pershing School). This annexation did occur and the smaller junior high recommendation was made again in 1962, but an expected population increase in the area never materialized and this junior high was never built. Pershing and Sherman are currently and always have been K-8 schools, although for two years, 1960-61 and 1961-62, students from both schools had the option of attending Mann (predominantly black), McMillan (pre- dominantly white), or staying at their previous elemen- tary school. The evidence does not permit a conclusion as to how the options were exercised, if at all. (3) OPTIONAL ATTENDANCE ZONES The plaintiff and intervenors are also concerned with the School District’s practice of creating optional attend- ance zones for seventh and eighth grade students from certain elementary schools near Technical Junior High. The schools with these options were Mason, Saunders and Walnut Hill. The following are relevant statistics for the time period involved: ROR ease ee 61 Driving Distance Racial Enrollment to Optional in Year School Junior Highs Option Created White Black Saunders 1.0 miles to Technical 1964-65 2.2 miles to Norris 2.5 miles to Lewis & Clark 178 0 Mason 1.9 miles to Technical 1965-66 2.7 miles to Norris 2.3 miles to Bancroft 447 12 Walnut Hill 1.3 miles to Technical 1967-68 3.3 miles to Norris 2.5 miles to Lewis & Clark 432 8 Technical Junior High White Black Total Stated Capacity 196..-65 254 399 653 795 1965-66 223 407 630 795 1966-67 160 507 667 795 1967-68 69 568 637 795 Bancroft, Lewis and Clark and Norris Junior High Schools were all predominantly white during this time period. The above information gives the statistical background concerning the optional attendance zones; information concerning the actual exercise of these options is avail- able for the 1971-72 school year only and is as follows: Children residing in the Walnut Hill zone: Racial Composition White Black To Technical Junior High— 3 48 551 To Lewis and Clark —90 1,205 21 To Norris — 5 1,407 10 ) Sat sea OTA NT FAIA ESE REA NER OIG AGE IY LG AIT ET PON SE) OMIM SET 62 Children residing in the Saunders zone: To Technical Junior High— 1 To Lewis and Clark —21 To Norris —23 Children residing in Mason zone: To Technical Junior High— 1 To Norris —25 To Bancroft Not Available 473 2 At the end of the 1971-72 school year, Technical Junior High was closed. The Saunders and Walnut Hill options were continued to Lewis and Clark and Norris, while the seventh and eighth grade students from Mason were as- signed either to Bancroft or Norris, depending upon their street address. In addition to these three optional attendance zones, there have been nine other elementary schools throughout the School District which either currently or in the past have had options concerning junior high attendance. With regard to eight of these nine schools, Connestoga, Harri- son, Irvington, Pershing, Ponea, Rose Hill, Sherman and Washington, the evidence indicates that exercise of these options to the various junior high schools involved had no significant segregative or integrative effect. The ninth school was predominantly black (Druid Hill, 1966- 67: 25 white, 568 black). In 1967-68 seventh and eighth graders in a portion of the Druid Hill zone were given options to attend predominantly black Mann (1966-67; 23 white and 963 black) or predominantly white MeMillan (1966-67 : 1303 white and 119 black). Mann was approxi- mately one mile and MeMillan approximately two and a half miles from the center of the optional zone. No pre- cise records are in evidence concerning the exercise of this option, but for 1967-68, the total enrollment at Me- Millan showed an increase of 42 black students and a de- crease of 44 white students, while at Mann there was a decrease of 105 black students and 1 white student. Thus, the option, for the year 1967-68, had some integrative effect. This option continues to the present, Tere EPR AAD TI NT IR AOE TE PT te aes pe File BORK pS oF CONCLUSIONS The foregoing constitute the Court’s findings of fact concerning the junior high system in the Omaha School District. From these findings the Court is able to draw certain conclusions. The first such conclusion is that there was no segregative intent on the part of the defendant School District in the establishment of the junior high system or in its assignment of feeder schools for the various junior highs. The evidence shows that the Dis- trict’s proposals for the various junior highs were con- sistently made on a geographical basis and that the race of the students expected to attend these schools was never a consideration. Of the junior highs which were ulti- mately built and operated, there were at times two— Technical and Mann—and there is currently one—Mann— which have enrolled a predominantly black student body. However, there appears in the record no evidence to indi- cate desire or design by the School District that this should occur. In both the 1951 and 1955 Studies, the combined enrollments of the feeder schools for the junior highs which ultimately became Technical and Mann were, as of those vears, predominantly white. The only pro- posed junior high with feeder schools enrolling even a combined majority of black students was the 1955 Near North Side junior high, the erection of which was recog- nized then to be improbable, and which was, in fact, never built. The evidence shows a constant increase in the eoncen- tration of black school age children in the areas to the north and west of what was once known as the Near North Side, and this inerease is reflected in the racial en- rollment of the various feeder schools, and consequently in the junior highs. With respect to the conversion of K-8 schools to the K-6 system, the Court finds that this policy in itself was racially neutral and was not indicative of any segregative intent. The policy was not totally applied to all schools at the same time and certain exceptions were made which LER LEE INGE SALLE ON LA EAR PIM ERE A | 64 deviated from the conventional neighborhood school basis and which plaintiff and intervenors argue demonstrate a segregative intent. However, as stated at the outset, the burden of proof here is upon plaintiff and intervenors to show an intentionally Segregative policy practiced in a meaningful or significant portion of the school system. Only then does it become incumbent upon the defendants to prove that their actions or non-actions were not moti- vated by segregative intent. The Court is not of the opinion that plaintiff and intervenors have met this burden in connection with this particular policy. First of all, the record shows that Mason converted to K-6 by 1965-66, Walnut Hill by 1967-68, and Yates by 1970-71. The record is unclear and undeveloped as to the status of Jackson at this time, although there is some evidence to indicate that the K-8 policy is still in existence at that school. The record further shows that Yates was per- mitted a one-year delay from 1969-70 to 1970-71 for con- version because of a request from the parents of the Yates students based upon the opposition to the children attending a junior high (Technical) which was housed with the senior high. There is some evidence as to the personal opinions of a school board member and a school board employee as to the reason for the parents’ request having to do with racial factors, but the Court considers this testimony to have little, if any, probative value and it is not persuasive of the plaintiff and intervenors’ con- tentions. Furthermore, if this particular policy was creating or continuing a racial imbalance, it was remedied by 1970-718 which would have heavily discounted an ‘intentionally segregative policy practiced in a mean- ingful or significant portion of the school system.” Also, heavily discounting such segregative intent is the fact that a portion of an adjacent zone (Webster) was trans- 8. The only possible exception is Jackson which in and of itself would fall short of demonstrating a practice involving a mean- ingful or significant portion of the school system. 65 ferred to the Yates zone in 1969 which thereby increased the black enrollment at Yates from two per cent to thir- teen per cent. Furthermore, the Court concludes that the geographic isolation of the Sherman and Pershing schools was and is a sufficient reason for the School District to permit the seventh and eighth grade students to remain in those buildings and that this decision is consistent with the District’s neighborhood school policy. The Court further concludes that the necessary segregative intent has not been demonstrated by the plaintiff and intervenors with reference to the seventh and eighth grades at Jackson, Mason, Walnut Hill and Yates, and that the reasons advanced for those respective retentions of K-8 policy until 1970-71 were not motivated by or indicative of a segregative intent on the part of the defendants practiced in a meaningful or significant portion of the school sys- tem. Considering next the optional attendance zones, the Court finds that the maintenance of such a system pre- sented a necessary and reasonable deviation from the neighborhood school policy. Historically, and most fre- quently during the 1960’s, optional zones were frequently used when the junior high schools came into being and were in existence throughout the District. The optional zone from Walnut Hill in 1967-68 was created when enrollments at Monroe Junior High made it impossible to assign Walnut Hill as a feeder school to that particular junior high school, which would have been the most desirable arrangement inasmuch as Walnut Hill fell with- in the Benson High attendance area, Benson High and Monroe occupying the same site. In the same year that the Walnut Hill optional zone was created, seventh and eighth grade students in a portion of the Druid Hill zone, which was predominantly black, were given the option of attending Mann Junior High (predominantly black) or MeMillan Junior High (predominantly white), even though McMillan was approximately one and a half miles farther away from this area than Mann. Insofar a PON IER CLIO OPIS PN San ER IRS Lt PEEP EAE LEIS OIE AO ION SS EMEA T ELIE L AIC AP BBE 5 ed 66 as the Mason optional zone is concerned, this was created in 1965 when Bancroft Junior High first opened in order to give the seventh and eighth graders from that area an alternative in transversing a commercial area and extensive interstate highway construction in order to reach Technical Junior High. Saunders Elementary School had never been proposed as a feeder school for Technical Junior High, either in 1951 or 1955, In these years there was a proposal that a portion or all of Saunders be assigned to the Dundee or Western Avenue Junior High respectively. The Dundee and Western Avenue Junior Highs ultimately merged in what was to be known as Lewis and Clark which, because of the availability of open land space, was located at the west- ernmost part of the zone which it was to serve. Saunders, therefore, was made an optional zone to Lewis and Clark or Technical or Norris in 1964-65 when the record shows that enrollments at Technical Junior High were up and enrollments at Lewis and Clark were down. From this evidence, the Court coneludes that. in these three in stances, the School District deviated from the neighbor hood school policy for sound, administrative reasons, and its judgment was not based upon racial reasons or a segregative intent. In this connection, it should further be noted that a significant measure of racial balance was achieved so far as Druid Hill was concerned because of this optional zone poliey which, again, would discount overall an intentionally segregative policy. It is here noteworthy to point out the observation made by the Court in the case of Higgins v. Board of Education, Grand Rapids, Michigan, No. CA 6386 (W. D. Mich., Filed July 18, 1973), Slip Opinion at 34-35, which is applicable to the instant ease: To anyone endeavoring with objectivity to consider the contentions of the parties, the most singular impression is of the unending dilemmas which face the school officials of a large urban system. It is altogether too easy for one, desiring in advance a particular result, to assign to any Board action that motive and that effect which most likely will support rary aac eal PATENTS Pa TAS Gr ETE xe RAS EP Can EN OS DRE ac re SE, 67 the personal predilection. Particularly difficult is the necessary task of examining Board action in the light of the circumstances as they existed at a given time, of alternatives available, of knowledge of what the future would or would not bring to the system, and of viewing each action or inaction in the light of ? its impact on the whole. IV. HIGH SCHOOLS At the present time there are eight senior high schools : in the Omaha Public School System. Three of these (Bryan, Burke and Northwest) have been opened within =~ the past seven years and are located in the far south, $ western and northwestern portions of the School District, f respectively. They were built in predominantly white i residential areas, and have always had predominantly 3 white enrollments. The remaining five schools, Benson, : Central, North, South and Technical, have all been in ys operation for at least forty years. Three of these five i have specified attendance zones—Benson in the mid- northwestern portion of the District; North in the north- eastern portion of the District; and South in the south- eastern portion of the District. Central and Technical share the same attendance zone in approximately the middle and eastern portion of the District. Technical is north and west of Central and is located approximately at the southern boundary of the Near North Side area which area comprises the largest precentage of black population in the City. In addition to serving this mutual zone, Central and Technical are and have always been open enrollment schools, which means that a student from any attendance zone may choose to attend Central or Technical rather than the high school serving his or her zone. These are the only open enrollment schools.® 9. At one time South was also an open enrollment school, but the evidence does not show that this was ever a significant factor in determining racial enrollment at any Omaha High Schools. . e SNE EERE SEES TEEL OWT ERE EN TNE BERNER LDL POSTE BED ENE eM Ce eI RR EINE LS ae | 68 From 1936 to 1945 Technical High had the largest stu- dent body in the School District, enrolling over 3,000 students annually, with a peak of 3,771 in 1940-41. Tech- nical consistently enrolled the largest number of black students during this time period, with a high of 320, or approximately nine per cent of the student body, in 1941-42, Around 1945, Technical began experiencing a steady decline in total enrollment to the point that for 1973-74 Technical enrolled only 710 students. At the same time there has been a consistent increase in the percentage of black students at Technical, and in 1973-74, blacks com- prised 96 per cent of the student body. This development has not been paralleled at any other high school. Figures introduced in evidence disclose the following concerning the five schools which have served the School District throughout this time: BENSON CENTRAL NORTH SOUTH TECHNICAL Total a Total oe Total lack Total Bleck Total a 1936-37 1,507 0 0 2,013 8 2,001 2 2,803 2 2,916 6 1941-42 1,162 0 2,113 9 1,740 1 2,915 2 3,365 9 1946-47 1,334 0 1,699 12 1,515 1 2,373 2 2,418 10 1951-52 1,186 0 1,455 WW 1,531 1 2,183 3 1,879 18 1956-57 1,352 0 1,882 13 1,778 2 2,477 3 1,727. 26 1961-62 1,985 0 1,758 13 1,794 3 2,619 2 1,537 4a 1966-67 2,096 1 2,028 18 2,165 18 2,521 2 1,453 69 1971-72 1,894 7 2,078 26 2,178 26 2,609 2 1,048 91 1973-74 1,637 14 2,075 32 1,890 36 2,444 3 710096 10. Percentages are rounded to the nearest whole number. 4 i : & » % 9 PSA ROCESS aA LE DROLET TRAN LOMA DALE ASE RICH. 8s NI LT ATR NEE ER ON PEAS 69 In the 1950’s, published reports of the School District listed Technical as thirty per cent below capacity, Central as filled to capacity, and the three other high schools as overcrowded. In the late 1950’s and early 1960’s addi- tions at Benson, North and South relieved the over- crowding somewhat at those schools. However, South High experienced severe overcrowding from 1961-62 to 1964-65 and Benson was seriously overcrowded from 1962-63 through 1971-72. Yet, from 1959-60 through 1971- 72, Technical, even though it housed Technical Junior High in a wing of the total facility, had excess capacity of from 680 to 1,500 students. This situation as it developed et Technical Senior High was known to the administration of the Omaha Public Schools. Mr. Carl Palmquist, the principal at Technical during the 1950’s and 1960’s, re- peatedly notified the Superintendent of Schools and his staff orally and in writing that Technical was in danger of becoming an all-black school. It is clear that the success of the open school and mutual zone policies at Technical, insofar as the reten- tion of a sufficiently high enrollment is concerned, were dependent upon the attractiveness of Technical to stu- dents throughout the District. It is also clear that in the last twenty-five years, fewer and {ewer white students have been attracted to Tech. The plaintiff and inter- venors allege that a substantial contributing cause to this situation has been the School District’s intentional deter- ioration of the quality of education offered at Technical. The Court disagrees and finds that the operation of Technical does not disclose segregative intent on the part of the defendants and to the contrary, shows a determina- tion on the part of defendants to upgrade both the physi- cal plant and the quality of education at this school. Furthermore, as far as Tech’s majority black status is coneerned, the Court reiterates that racial balance is not required under the Constitution and there can be and are many instances were one-race schools within a District are plainly permissible under the law. It is only where the imbalance is caused by a segregative intent on the SNES I INE EIS FLAIR TS EIA PRIS MRE AI PERE CN RIL TE RII AMBP EY Ore RP ah on og hE! HES — | RK MOR SY RT AEB AEA STL, IEAM NOLEN SS AIP END 70 part of the School Board and where the imbalance thereby reaches the proportion of constitutional violation that the Court may supplant its judgment and policy for that of the School District. As stated in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), at pages 25 and 16: The record in this case reveals the familiar phen- omenon that in metropolitan areas minority groups are often found concentrated in one part of the city. In some circumstances certain schools may remain all or largely of one race until new schools can be pro- vided or neighborhood patterns change. Schools all or predominantly of one race in a district of mixed population will require close scrutiny to determine that school assignments are not part of state- enforced segregation. In light of the above, it should be clear that the existence of some small number of one-race or virtually one-race schools within a district is not in and of itself the mark of a system that still practices segregation by law. * * * School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion of the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitu- tional violation, however, that would not be within the authority of a federal court. See also, Spencer v. Kugler, 326 F. Supp. 1235 (D.N. J. 1971), aff'd. 404 U.S. 1027 (1972), where the Court stated : v1 “The schools . . . are racially imbalanced by reason of N.J.S. 18A:8-1 to 42 and N.J.S 18A:38-1 to 24, which sets school district boundaries thereby rendering racial balance mathematically impossible in many districts, thus providing unequal educational opportunities. The State has taken no steps to achieve racial balance by reason of the mathematical composition of the geographical area which comprises the school district, has not attempted to redraw school district lines to achieve racial balance, has not pro- vided funds for compensatory education to overcome adverse educational effects of racial imbalance.’’ Id. at 1237. Plaintiff’s substantive claim rests wholly on the assertion that there is an affirmative constitutional duty to achieve racial balance among the several dis- tricts of a state system of public schools; and that a failure to do so is in violation of Fourteenth Amendment rights. Jd. at 1238. The Court in Swann draws a critical distinction between those states which have a history of dual school systems and a separation of the races which has continued through ‘‘freedom-of-choice’’ and ‘*veographical zoning’’ plans which create the illu- sion of conforming to law, and those wherein so- ealled ‘‘de-facto’’ segregation results from housing patterns and conventional drawing of school district zones. Id. at 1242. A continuing trend toward racial imbalance caused by housing patterns within the various school districts is not susceptible to federal judicial intervention. The New Jersey Legislature has by intent maintained a unitary system of public education, albeit that system has degenerated to extreme racial imbalance in some school districts; nevertheless, the statutes in question as they are presently constituted are con- stitutional. Jd. at 1243. The evidence discloses that from at least the late 1930’s through the 1950’s, Technical offered a comprehensive AP TRS TOT Pee GAT HOE NEE ON BRD ~! to curriculum, with courses in both college preparatory and vocational areas. Tech had the most advanced vocational program in the School District, and a substantial portion of the students attending Technical did so because of this program. Extensive vocational instruction was also offered at South. In the early 1960's, the interest of high school students in vocational education diminished District-wide, and greater importance was placed on colleze preparation. Also, in the 1960's officials at Tech became aware that black students (Technical turned majority black in 1963- 64) were having difficulty finding employment in certain skilled areas. As a result of these two factors, Tech dropped its instruction in certain vocational areas, e. g., electronics and instrumentation—and added programs in other vocational areas, such as auto mechanics and culin- ary arts, where job accessibility for blacks was greater. The interest of high school students in the vocational programs at Technical has continued to decline to the point that many areas of the school and much equipment are not currently in use. The Court does not find, how- ever, that the potential for an excellent vocational educa- tional program at Technical has in any way diminished. The equipment and facilities are present, are of high quality, and are equal to and in some areas superior to, those of any high school in the District. In the 1960’s, the curriculum at Tech changed in other ways as well. Certain of the foreign languages (e.g., French and German) were eliminated because of decreased student interest (although Spanish and Latin were retained). Also the orchestra was removed. On the other hand, programs such as R.O.T.C., guidance and health (for girls) and an audio-response English program were ini- tiated. Also, in the early 1960’s, a program of what is known as ‘‘special education’’—i. ¢., classes geared particularly to students who have not progressed satisfactorily aca- demically or who have learning disabilities—was insti- tuted at Tech. Tech was the only high school which had 73 these classes for the first few years, and as many as two hundred students participated in this program in any one year. Eventually the other high schools initiated such classes, although the dates in which they did so are un- known. The plaintiff and intervenors argue that students from across the District who needed special education or who had histories of disciplinary problems in school were channeled into Tech, and that thus, the ability of the Tech students as a whole and the attractiveness as a high school were further reduced. There is not sufficient evi- dence to support this claim. To the contrary, the evidence discloses that the special education program at Technical was designed to serve the students already enrolled at that school, not students from other schools. Concerning disciplinary problem students, there is evidence that Tech received such students from other schools and transferred such students out of its own facility to other schools, and there is no evidence of the relative numbers of these stu- dents. Prior to the start of the 1971-72 school year, Tech ex- perienced what several witnesses have described as ‘‘dis- ruptions’’ of an unspecified character and number. There is considerable evidence that many students at Technical at this time were dissatisfied with the content and struc- ture of courses offered, the manner of instruction, the treatment of Technical by the central administration of the School District, and the physical plant at Technical. The state of the record does not permit findings as to the factual basis for this dissatisfaction. However, in re- sponse to the students’ action, and in cooperation with various citizens’ groups and an outside consulting firm, the School District made several changes at Tech for the school year 1971-72. The building itself was repaired and renovated; some faculty assignments were changed; and the curriculum was altered substantially. The evi- dence shows that the academic program at Tech from 1971-72 to the present has been basically individualized, The traditional time schedule of quarters, semesters, ete., has been discarded so that students progress at their own pace. Students may now take as much or as little of a Sse Peay: SOLE FSAI OR > RELI ESL OPER DRG SOT 4] WARD aon vare narnermevenagensarit ave qm notes ae rons nyrnnoeyes EE 74 course as they are able to handle at any one time, and the courses can be structured to fit the particular student’s needs, Also Tech has considerable flexibility in its course offerings. Varied faculty backgrounds permit the devis- ing and implementing of courses not formerly offered, as students’ needs and interests require. There has also been an active student recruitment program at Technical, both for full and part-time students, V. SPECIAL TRANSFER POLICY A. Introduction One of the methods hy which a student may attend a school other than that in his zone of residence is by ob- taining approval of the School Distriet for a special trans- fer. The origin of the special transfer policy was ex- plained in the Memorandum Opinion following the pre- liminary injunction hearing, 367 F. Supp. at 191, Initi- ated in 1964, the policy has five formal prerequisites for the granting of a special transfer: (1) The achievement level of the pupil requesting a transfer must equal the average level of achievement of the pupils in the grade and school for which the transfer is being requested. (2) The school to which the pupil is transferred can- not be an overcrowded school. Capacities of schools shall be determined by the staff and the Board of Education. (3) The transportation of pupils is totally the re- sponsibility of parents. (4) The request must be a formal written request on an individual basis. (5) Permission for a transfer shall not be granted until enrollments are ascertained. In addition, in determining whether a transfer should be granted, the School District considers medical reasons, family hardships, and problem or learning situations Be SAIS OE EAL DTD LAIN EAN I EMER ERIS ORT ANNIE ELATED OREN NEE IE A TELE ELITE HAI LINE IL NP ALLO IEE EES AEDT ns ER tanta tn ee eee ck | “ i SAID IPL AE TREE wee AREY TP ag ATTRA PR LOLS CONROE TB ORM gi Ben Si PRD ~ The bare facts remain, however, that the special trans- fers under the policy in question were not granted upon any basis of racial conditions or considerations, and there is no question but what these transfers have been granted with the same frequency to black students as to white students. Further, the achievement level requirement ap- plies equally to both black students and white students. Thus, the open transfer policy in question clearly meets constitutional tests heretofore handed down repeatedly by other courts. There is no pronouncement on the precise question by the United States Supreme Court, but approv- al here would clearly be indicated by that Court in its opinion in Goss v. Board of Education of City of Knox- ville, 373 U.S. 683 (1963) wherein Justice Clark writing for a unanimous Court stated at page 688: This is not to say that appropriate transfer pro- visions, upon the parents’ request, consistent with sound school administration and not based upon any state-imposed racial conditions, would fall. Likewise, we would have a different case here if the transfer provisions were unrestricted, allowing transfers to or from any school regardless of the race of the ma- jority therein. In Bradley v. School Board of City of Richmond, Vir- ginia, 345 F. 2d 310 (4th Cir. 1965), vacated on other grounds, 382 U. S. 103 (1965), a case involving a transfer policy substantially similar to the transfer policy in ques- tion, the Court stated, at page 316, in approving the transfer system: It has been held again and again, however, that the Fourteenth Amendment prohibition is not against segregation as such. The proscription is against dis- crimination. Everyone of every race has a right to be free of discrimination by the state by reason of his race. There is nothing in the Constitution which prevents his voluntary association with others of his race or which would strike down any state law which permits such association. The present suggestion . a ROSELL OO PORE, RARE LISI AIEEE BEES — that a Negro’s right to be free from discrimination requires that the state deprive him of his volition is incongruous. The phrase from the second Brown decision to which the plaintiffs refer lends no support to their contention. The first paragraph of the opinion, in which the phrase appears, clearly and precisely ex- presses the proscription against ‘‘discrimination.”’ There is no hint of a suggestion of a constitutional requirement that a state must forbid voluntary asso- ciations or limit an individual’s freedom of choice ex- cept to the extent that each individual’s freedom of choice may be affected by the equal right of others. A state or a school district offends no constitutional requirement when it grants to all students uniformly an unrestricted freedom of choice as to schools at- tended, so that each pupil, in e*fect, assigns himself to the school he wishes to attend. This and other courts have repeatedly referred to the legality and propriety of a system of free trans- fers. We first did so in Dillard v. School Board of City of Charlottesville, 4th Cir., 308 F. 2d 920, 923-924. In an opinion previously prepared by Senior Judge Soper, subsequently adopted per curiam as the opin- ion of the en bane court, there was approving refer- ence to systems of unrestricted rights of transfer, which were said to have been conspicuously success- ful in Baltimore and in Louisville. Subsequently, in Jeffers v. Whitley, 4th Cir., 309 F. 2d 621, while con- demning a compulsive system sought to be justified on the basis of assertions of volition of the pupils, we indicated en bane our approval of a truly volun- tary system under which at reasonable intervals reas- onable alternatives were available to all pupils, so that those who wished to do so might attend a school with members of the other race. Finally, when this : case was before us earlier, this Court, anticipating : the School Board’s implementation of a system of free assignments and transfers, indicated its appro- priateness, provided pupils, parents and the public in general were all informed of it. We there said in summary: (Footnote omitted.) ‘“* * * As we clearly stated in Jeffers v. Whitley, 309 F. 2d 621, 629 (4th Cir. 1962), the appellants are not entitled to an order requiring the defendants to effect a general inter-mizxture of the races in the schools but they are entitled to an order enjoining the defendants from refusing admission to any school of any pupil because of the pupil’s race. The order should prohibit the defendants’ conditioning the grant of a requested transfer upon the applicant’s submis- sion to futile, burdensome or discriminatory admin- istrative procedures. If there is to be an absolute abandonment of the dual attendance area and ‘feeder’ system, if initial assignments are to be on a nondis- criminatory and voluntary basis, and if there is to be a right of free choice at reasonable intervals there- after, consistent with proper administrative proced- ures as may be determined by the defendants with the approval of the District Court, the pupils, their parents and the public generally should be so in- formed.’? (Emphasis in original.) See also, Taylor v. Board of Education of City School District of New Rochelle, 294 F. 2d 36 (2d Cir. 1961), cert. denied, 368 U. S. 940; Bell v. School City of Gary, Indiana, 324 F. 2d 209 (7th Cir. 1963), cert. denied, 377 U.S. 924 (1964). In conclusion, the Court finds that the transfer policy of the defendants is constitutionally permissible, is not violative of the Constitution and was neither conceived nor maintained with a segregative intent. VI. HIRING AND ASSIGNMENT OF BLACK FACULTY AND STAFF The plaintiff and intervenors allege that the segrega- tive intent of the defendants is also evident from the BR Ew 87 School District’s policies concerning the hiring and placement of teaching faculty and staff. In 1940-41 the first two black teachers were employed by the defendant School District and were assigned to Long Elementary School (predominantly black). The School District at this time had over 2,000 black students. By 1973-74 there were 227 black teachers and over 12,000 black students in the Omaha Public Schools. From 1940-41 through 1958-59, all of the black teachers em- ployed by the School District were assigned to elementary schools and all of these schools were majority black. No black teachers were assigned to majority white schools until 1962-63. The first black teachers were assigned to a junior high in 1959-60 when Horace Mann Junior High was opened (1959-60 enrollment: 71 per cent black). Seven of the twenty-three teachers assigned to Mann were black. Black teachers were first assigned to a majority white junior high in 1964-65. Between 1959-60 and 1971-72 (when Technical Junior High was closed) the large ma- jority of black junior high faculty were assigned to majority black junior highs (7.e., Mann or Tech), al- though only once did black teachers comprise a majority of the faculty at either of these schools. Black faculty members first taught in the senior high schools in 1963-64, when two were assigned to Technical Senior High (51 per cent black) and one to North (9 per cent black). The plaintiff and intervenors have also offered the tes- timony of six black persons who at some time were em- ployed in the Omaha Public Schools, but whose treatment by the defendant School District with respect to hiring and placement is alleged to have been racially discrimin- atory. Three of these black people are currently employed by the School District, one as an assistant superintendent, one as a junior high principal, and one as a senior high assistant principal. The other three are no longer with the school system. The experiences of a white assistant PART See | th ee et aaa a Se tt he. he ae ae. 88 superintendent concerning his hiring and placement by the School District have been offered by the defendants, as well as other documentary evidence. From this mater- ial and that in the preceding paragraphs, the Court makes the following findings: (1) Through the early 1960’s a very small number of black teachers was employed by the School District in comparison to the number of black persons enrolled as students. However, there is little evidence of any kind concerning the availability of black teachers during this time period, and what little evidence there is would indi- cate that there were few qualified black teachers to be hired. The evidence does show that in the [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1566%3A2. Public record. Not legal advice.