Columbus Board of Education v. Penick Brief for Respondents
Public Court Documents
January 1, 1979
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Brief Collection, LDF Court Filings. Columbus Board of Education v. Penick Brief for Respondents, 1979. 10ec6d0b-ae9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0a2f066b-cc9f-4c2d-884e-7850fcbd40cb/columbus-board-of-education-v-penick-brief-for-respondents. Accessed July 30, 2025.
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Supreme (tart at tip Initrd
October T eem , 1978
No. 78-610
1st th e
Columbus B oard op E ducation, et al.,
v .
Petitioners,
Gary L. Penick, et al.
ON W R IT OP CERTIORARI TO T H E U N IT E D STATES COURT
OP APPEALS FOR T H E S IX T H CIRCU IT
BRIEF FOR RESPONDENTS
Thomas I. A tkins
A tkins & Brown
Suite 610
10 Post Office Square
Boston, Massachusetts 02109
Richard M. Stein
Leo P. Ross
Suite 816
180 East Broad Street
Columbus, Ohio 43215
Edward J. Cox
50 West Broad Street
Columbus, Ohio 43215
W illiam L. Taylor
Catholic University Law School
Washington, D.C. 20064
Nathaniel R. Jones
General Counsel, NAACP
1790 Broadway
New York, New York 10019
Louis R. Lucas
W illiam E. Caldwell
Ratner, Sugarmon, Lucas
and Henderson
525 Commerce Title Building
Memphis, Tennessee 38103
Paul R. Dimond
O’Brien, Moran and Dimond
320 North Main Street
Ann Arbor, Michigan 48104
Robert A. Murphy
Richard S. K ohn
Norman J. Chachkin
Lawyers’ Committee for
Civil Rights Under Law
Suite 520, Woodward Building
733 15th Street, N.W.
Washington, D.C. 20005
Attorneys for Respondents, Penick, et al.
I N D E X
Table of Authorities ....................................................... v
Questions Presented ..... 1
Statement of the Case ..... ................................... ............. 2
Statement of Facts
Introduction .................................................................. 3
A. Pre-1954 Operation of the Columbus Public
Schools .............. 10
1. Demography.................................... 10
2. Early history: compulsory segregation ....... 11
3. Segregation ended and reinstated................. 12
4. Extending segregation: grade restructur
ing, optional zones, faculty replacement,
boundary changes, and gerrymandering .... 15
B. Post-Brown Administration of the Schools ..... 22
1. Demography ................................................. 23
2. Post-Brown actions leading to segregation .. 28
a. Faculty and staff assignment policies .... 29
b. Application of the “neighborhood school”
policy ............................................................ 32
c. Deviation from the “neighborhood school”
system ............. 37
Optional attendance areas ..... 38
Discontiguous attendance areas........... 40
PAGE
11
Segregative relocation of classes in
PAGE
other schools ........................................... 41
Rental facilities ....................................... 42
Construction and boundary establish
ment .......................................................... 43
d. The 1950’s .................................................. 45
e. The 1960’s .................................................... 56
f. The 1970’s .................................................... 81
g. Summary .................................................... 86
C. Impact on Current Segregation of Schools....... 87
D. The Remedy Proceedings ................................... 94
Summary of Argum ent...................................................... 96
A rgument—
I. The Evidence Overwhelmingly Supports the Dis
trict Court’s Conclusion of Systemwide Constitu
tional Violations by Columbus School Authorities 100
A. Plaintiffs Proved a Pattern and Practice of
Segregation by Columbus Defendants and
Their Predecessors in Office Which Fully
Justified the Trial Court’s Holding of System-
wide Liability, Irrespective of Any Eviden
tiary Presumptions Operating in Plaintiffs’
Favor ...................................................................... 100
I l l
B. The District Court’s Consideration of Peti
tioners’ Claimed Adherence to a “Neighbor
hood School” Policy, and of the Degree to
Which Segregative Results of Their Actions
Were Known or Foreseeable, in Reaching the
Ultimate Conclusion That There Was a Sys
temwide Policy of Segregation in Columbus
Was Not Inconsistent With Washington v.
Davis or Arlington Heights ........................ 109
C. The Systemwide Violation Finding Also Is
Consistent With the Procedures and Eviden
tiary Presumption Established by This Court
in Keyes ................................................................ 118
II. The District Court Acted Correctly in Requir
ing a Comprehensive, Systemwide Desegregation
Plan Which Promised to “Achieve The Greatest
Possible Degree Of Actual Desegregation, Tak
ing Into Account The Practicalities Of The
Situation” .................................................................... 124
A. There Was No Error in Putting the Burden
on Petitioners to Demonstrate That the Racial
Composition of Schools Omitted From Their
Proposed Remedial Plans Was Unaffected by
PAGE
Their Constitutional Violations ....................... 124
B. The District Court’s Rejection of the Board’s
June 10 and July 8 Plans “Was Compelled by
Green and Swann............................................ . 129
IV
III. Dayton Board of Education v. Brinkman Did Not,
and Should Not Be Interpeted to, Change the
Foregoing Principles; and the Interpretation of
That Decision Urged by Petitioners Unduly Lim
its the Remedial Discretion of Federal Courts .... 133
A. Dayton I Did Not Overrule Keyes or the Other
Decisions Upon Which Plaintiffs Rely; Since
the Courts Below Properly Applied the Prin
ciples of Swann and Keyes to the Proof and
Findings in the Record, No Modification of
Their Judgments Is Indicated by Dayton I .... 134
B. Dayton I Should Not Be Extended to Displace
the Evidentiary Rules Announced in Keyes;
the Record Here Confirms the Wisdom of
Keyes’ Prima Facie Case Approach to the
Determination of the Nature and Extent of
the Constitutional Violation in School De
segregation Cases .............................................. 139
C. The Formula Advanced by Petitioners Would
Deprive Federal District Courts Sitting as
Equity Tribunals in School Desegregation
Cases of the Discretion and Breadth of Reme
dial Authority Which This Court Has Con
sistently Upheld as Necessary to Effective Im
plementation of the Constitutional Provisions
PAGE
Here at Issue ...................................................... 151
Conclusion ................................................. .............. ........... 156
A ppendix—
School Segregation and Residential Segregation:
A Social Science Statement ........ .............................. la
V
T able op A uthorities
Cases: page
Arthur v. Nyquist, 573 F. 2d 134 (2d Cir. 1978), cert.
denied, 47 U.S.L.W. 3324 (Oct. 2, 1978) ................... 114n
Austin Independent School Dist. v. United States, 429
U.S. 990 (1976) .......................................................111,115x1
Berenyi v. Immigration Serv., 385 U.S. 630 (1967) .... 4n
Board of Educ. v. State, 45 Ohio St. 555, 16 N.E. 373
(1888) ......................................... 14n
Booker v. Special School Dist. No. 1, 351 F. Supp. 799
(IX Minn. 1972) .................................... ................. ..106,108
Bradley v. Milliken, 338 F. Supp. 582 (E.D. Mich.
1971), appeal dismissed, 468 F. 2d 902 (6th Cir.),
cert, denied, 409 U.S. 844 (1972), aff’d 484 F. 2d 215
(6th Cir. 1973) (en banc), aff’d in pertinent part,
418 U.S. 717 (1974) .................................... ....... 106-07,108
Bradley v. School Bd. of Richmond, 382 U.S. 103
(1965) ............................... ................................................149 n
Bradley v. School Bd. of Richmond, 345 F. 2d 310 (4th
Cir. 1965) .............................. ....................... ........... . ,U9ii
Brainard v. Buck, 184 U.S. 99 (1902) ...... ................ 4n, 105
Brennan v. Armstrong, 433 U.S. 672 (1977) .......137n, 138
Brewer v. School Bd, of Norfolk, 397 F. 2d 37 (4th
Cir. 1968) .......................................................... 34n, 127,151
Brinkman v. Gilligan, 578 F. 2d 853 (6th Cir. 1975)
135n
Brinkman v. Gilligan, 503 F. 2d 684 (6th Cir. 1974)
134
Brown v. Board of Educ., 349 U.S. 294 (1955) ......... . 6
Brown v. Board of Educ., 347 U.S. 483 (1954) .......passim
Brunson v. Board of Trustees, 429 F. 2d 820 (4th Cir.
1970) ............ ............................................... 149n
Buchanan v. Warley, 245 U.S. 60 (1917) ...................... 143
VI
City of Richmond v. Deans, 281 U.S. 704 (1930) ....... 143
Clark v. Board of Educ., 426 F. 2d 1035 (8th Cir.),
cert, denied, 402 U.S. 952 (1971) .............................. 127
Clemons v. Board of Educ. of Hillsboro, 228 F. 2d 853
(6th Cir. 1956) ................. ........ ..... ............ ....... -.......... 107
Cooper v. Aaron, 358 U.S. 1 (1958) ...............................123n
Davis v. Board of School Comm’rs, 402 U.S. 33 (1971)
123,124n
Davis v. School Dist. of Pontiac, 443 F. 2d 573 (6th
Cir.), cert, denied, 404 U.S. 913 (1971) ..................... 103
Davis v. School Dist. of Pontiac, 309 F. Supp. 734
(EJD. Mich. 1970), aff’d 443 F. 2d 573 (6th Cir.),
cert, denied, 404 U.S. 913 (1971) ..........................103,108
Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406 (1977)
passim
Ellis v. Board of Public Instruction, 423 F. 2d 203 (5th
Cir. 1970) ........................................................................ 117n
Ford Motor Co. v. United States, 405 U.S. 562 (1972) .. 152
Goss v. Board of Educ. of Knoxville, 373 U.S. 683
(1963) ................................................. 39n
Green v. County School Bd. of New Kent County, 391
U.S. 430 (1968) .............................6,98,99,124,125n,127,
129,138,149,150,155
Harrington v. Colquitt County Bd. of Educ., 460 F. 2d
193 (5th Cir.), cert, denied, 409 U.S. 915 (1972) ...... 154
Henry v. Clarksdale Municipal Separate School Dist.,
409 F. 2d 682 (5th Cir.), cert, denied, 396 U.S. 940
(1969) .............................................................................. 127
Higgins v. Board of Educ. of Grand Rapids, 508 F. 2d
779 (6th Cir. 1974) ............................................... 147-48
PAGE
V ll
Jones v. Alfred II. Mayer Co., 392 U.S. 409 (1968)
26n, 149n
Kelley v. Metropolitan County Bd. of Educ., Civ. No.
2094 (M.D. Tenn., July 15, 1971), aff’d 463 F. 2d 732
(6th Cir.), cert, denied, 409 U.S. 1001 (1972) ........... 154
Kelly v. Guinn, 456 F. 2d 100 (9th Cir. 1972), cert.
denied, 413 U.S. 919 (1973) ............... ......................... 108
Kemp v. Beasley, 423 F. 2d 851 (8th Cir. 1970) ........... 149
Keyes v. School Dist. No. 1, Denver, 413 U.S. 189
(1973) .................................................................... ..... passim
Keyes v. School Dist. No. 1, Denver, 303 F. Supp.
279, 289 (D. Colo. 1969), aff’d 445 F. 2d 990 (10th
Cir. 1971), vacated and remanded on other grounds,
413 U.S. 189 (1973) ....... ............................... ......... 27n, 113
Lane v. Wilson, 307 U.S. 268 (1939) ......................... 142
Lee v. Nyquist, 318 F. Supp. 710 (W.D.N.Y. 1970)
(three-judge court), aff’d 402 U.S. 935 (1971) .......126n
Louisiana v. United States, 380 U.S. 145 (1965) .........._152n
Massachusetts Mut. Life Ins. Co. v. Ludwig, 426 U.S.
479 (1976) .............................................. ......................... 10
McDaniel v. Barresi, 402 U.S. 39 (1971) ....................... 149
Milliken v. Bradley, 433 U.S. 267 (1977) .......144,148,149,
151,152,153,154-55
Milliken v. Bradley, 418 U.S. 717 (1974) ....27n, 126n, 144n
Monroe v. Board of Comm’rs, 427 F. 2d 1005 (6t,h Cir.
1970) .................................................................. . 127
Monroe v. Board of Comm’rs of Jackson, 391 U.S. 430
(1968) ..... ................... ..... ............................ ........ ........... 125
Morgan v. Hennigan, 370 F. Supp. 410 (D. Mass.),
aff’d sub nom. Morgan v. Kerrigan, 509 F.2d 580
(1st Cir. 1974), cert, denied, 421 U.S. 963 (1975).....103,
108,117
PAGE
Y l l l
Moses v. Washington Parish School Bd., 276 F. Supp.
834 (E.D. La. 1967) ...................................................... 39n
NAACP v. Lansing Bd. of Educ., 429 F. Supp. 583
(W.D. Mich. 1973), aff’d 559 F. 2d 1042 (6th Cir.
1977), cert, denied, 434 U.S. 1065 (1978) ________ 107n
North Carolina State Bd. of Educ. v. Swann, 402 U.S.
43 (1971) ........................................................ 123n, 126n, 149
Oliver v. Kalamazoo Bd. of Educ., 368 F. Supp. 143
(W.D. Mich. 1973), aff’d sub nom. Oliver v. Michigan
State Bd. of Educ., 408 F. 2d 178 (6th Cir. 1974),
cert, denied, 421 U.S. 963 (1975) .............103-04,106,108
Oliver y. Michigan State Bd. of Educ., 408 F. 2d 178
(6th Cir. 1974), cert, denied, 421 U.S. 963 (1975)
114n, 116,118n, 129
Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424
(1976) ......................................... 123-24,150
Pate v. Dade County School Bd., 434 F. 2d 1151 (5th
Cir. 1970) ........................................................................ 132
Raney v. Board of Educ. of Gould, 391 U.S. 443 (1968) 125
Reed v. Cleveland Bd. of Educ., 481 F. 2d 570 (6th
Cir. 1978) ........................................................................ 148
Rogers v. Paul, 382 U.S. 198 (1965) ............ ....... ........ 149n
San Antonio Independent School Dist. v. Rodrigues,
411 U.S. 1 (1973) ............... ............ ....... ...................... 126n
School Dist. of Omaha v. United States, 433 U.S. 667
(1977) ......................... ....... .......................................137n, 138
Sloan v. Tenth School Dist. of Wilson County, 433 F.
2d 587 (6th Cir. 1970) .................................................. 34n
South Park Independent School Dist. v. United States,
47 U.S.L.W. 3385 (Dec.. 4, 1978) ................................ 124n
PAGE
IX
Spangler v. Pasadena City Bd. of Educ., 311 F. Sapp.
501 (C.O. Cal. 1970) .......................... ..... ...................... 107
State ex rel. Games v. McCann, 21 Ohio St. 198 (1871) 12n
Swann v. Chariotte-Mecldenburg Bd. of Educe, 402
U.S. 1 (1971) ......... ................. .......... .......... ........... .passim
Swann v. Charlotte-Mecklenburg Bd. of Educ., 362 F.
Sapp. 1263 (W.D.N.C. 1973), appeal dismissed, 489
F. 2d 966 (4th Cir. 1974), subsequent proceedings,
379 F. Sapp. 1098 (W.D.N.C. 1974) ......................... 154
Taylor v. Board of Educ. of New Rochelle, 191 F.
Sapp. 181 (S.D.N.Y. 1961) ................................. ..... 5n, 107
United States v. Armour & Co., 402 U.S. 673 (1971) „..152n
United States v. Board of School Comm’rs, 332 F.
Sapp. 655 (S.D. Ind. 1971), aff’d 474 F. 2d 81 (7th
Cir. 1973) ................................................ 106,107,108,117n
United States v. Commercial Credit Co., 286 U.S. 63
(1932) ................................................................................ 105
United States v. Crescent Amusement Co., 323 U.S.
173 (1944) ................................... 153n
United States v. Jefferson County Bd. of Educ., 372 F.
2d 836 (5th Cir. 1966), aff’d on rehearing en banc,
380 F. 2d 385 (5th Cir.), cert, denied sub nom. Caddo
Parish School Bd. v. United States, 389 U.S. 840
(1967) .................................................................. ..145n, 149n
United States v. Loew’s, Inc., 371 U.S. 38 (1962) .....153n
United States v. School Dist. No. 151, 286 F. Sapp.
786 (N.D. 111. 1967), aff’d 404 F. 2d 1125 (7th Cir.
1968) ....................................... 107
United States v. School Dist. of Omaha, 565 F. 2d 127
(8th Cir.) (en banc), cert, denied, 434 U.S. 1064
(1977) ........... 114n
United States v. Scotland N ed City Bd. of Educ., 407
U.S. 484 (1972) ...................................................100,127,154
PAGE
X
United States v. United Shoe Machinery Corp., 391
U.S. 244 (1968) ........... ............................ ........................ 152
United States v. United States Gypsum Co., 340 U.S.
76 (1950) ........................................................... ............ . 153
Village of Arlington Heights v. Metropolitan Housing
Dev. Corp., 429 U.S. 252 (1977) .... ...... 97,109, 111, 112,
113,114n, 115,116,137n
PAGE
Washington v. Davis, 426 U.S. 229 (1976) ....... 97,109, HOn,
111,113,114n,116
West Virginia State Bd. of Educ. v. Barnette, 319 U.S.
624 (1943) ............... ............................. ........................... 147
Wright v. Council of the City of Emporia, 407 U.S.
451 (1972) ........ .......................... 100,127,133,141,149,154
Statutes and Buies:
20 U.S.C. § 1701 ............................................................ -.._117n
42 U.S.C. §§ 3601 et seq...................................... .............. 26n
84 Ohio L. 43 .................................................................... 14n
75 Ohio L. 513 ............................................................. 12
Fed. R. Civ. P. 41(b) ............ ...................... ................... 106
Sup. Ct. Rule 36(2) ................................................ ......... 3n
Sup. Ct. Rule 40(2) .......................................................... 3n
Other Authorities:
American Institute of Public Opinion, T he Gallup
Opinion I ndex (1976) ..... ...........................................146n
C. Black, The Lawfulness of the Segregation Deci
sions, 69 Y ale L.J. 421 (1960) .................................148n
XI
E. Calm, Jurisprudence, 30 N.Y.U.L. Rev. 150 (1955) 148n
A. Campbell and P. Meranto, The Metropolitan Edu
cational Dilemma, in T he M anipulated City (S.
Gale and E. Moore, eds., 1975) ...............................146n
0. Duncan, S ocial Change in a M etropolitan Com
m unity (1973) ............................................................ 146n
J. Egerton, S chool D esegregation: A R eport Card
F rom the South (1976) ...........................................154n
J. Freund, M odern E lementary S tatistics (4th ed.
1973) ........ ..................................................................... 150n
M. Giles, et al., Symposium on S chool D esegregation
and W hite F light (1975) ............... ........ ........ ...... 154n
M. Giles, D. Catlin and E. Cataldo, D eterminants op
R esegregation : Compliance/ R ejection B ehavior
and P olicy A lternatives (National Science Foun
dation, 1976) - ........................................................ 154n
R. Green, Northern School Desegregation: Educa
tional, Legal and Political Issues, in U ses of the
Sociology of E ducation (1974) ................ 146n
S. Kanner, From Denver to Dayton: The Develop
ment of a Theory of Equal Protection Remedies,
72 NW. U. L. Rev. 382 (1978) ........................... .....136n
G. Orfield, I f Wishes Were Houses Then Busing Could
Stop: Demographic Trends and Desegregation
Policy, U rban R eview (Summer, 1978) ................. 154n
G. Orfield, M ust W e B u s? (1978) ................................ 154n
L. Poliak, Racial Discrimination and Judicial In
tegrity: A Reply to Professor Weehsler, 108 U.
Pa. L. R ev. 1 (1960) ............................................... _149n
PAGE
Xll
K. Taeuber, Demographic Perspective on Housing and
School Segregation, 21 W ayne L. B ev. 833 (1975)
146n
United States Comm’n on Civil Bights, B acial I sola
PAGE
tion in the P ublic S chools (1967) .......................154n
K. Vandell and B. Harrison, B acial T ransition in
Neighborhoods (1976) ..... ........... ...................... ...... 146n
M. Weinberg, D esegregation B esearch (1970) ...........146n
J. Wigmore, E vidence (3rd ed. 1940) ......................... 6
I n t h e
(ta r t of % Hutted B u U b
Octobee Term, 1978
No. 78-610
Columbus B oard oe E ducation, et al.,
Petitioners,
V.
Gary L. Penick, et al.
ON W R IT OP CERTIORARI TO T H E U N IT E D STATES COURT
OP A PPEALS POR T H E S IX T H C IR C U IT
BRIEF FOR RESPONDENTS
Questions Presented
Respondents do not accept the statement of Questions
Presented as framed by Petitioners, because the assump
tions reflected in the questions are inaccurate, with respect
to the status of the Columbus school system (where “man
datory [i.e., state-imposed] segregation by law has [not]
long since ceased” ), with respect to the evidence (there is
much more in the record than “ evidence of discrete and iso
lated constitutional violations” ), and with respect to the
basis for the rulings below (which were not based solely
on “ legal presumptions” ). However, we forsake the se
mantic exercise of rewording the questions. As Petitioners
have described their claims in their brief, and in light of
the record made at the trial of this matter, the issue to be
2
determined by this Court is : what do plaintiffs in a school
desegregation action need to prove in order to be entitled
to meaningful (usually systemwide) relief1?
Statement of the Case
The prior proceedings in this matter are, by and large,
accurately described at pages 3-7 of Petitioners’ Brief, with
the exception of certain characterizations of the parties
and the actions of the trial court. The most important of
these is Petitioners’ contention that the July 29, 1977 Order
o f the district court (Pet. App. 97) required “ development
of a new systemwide racial balance remedy plan” or “ that
every school in the Columbus system be racially balanced.”
The trial judge did not require racial balance; he did re
ject the plans proposed by the Columbus Board of Educa
tion because “ the Columbus defendants did not shoulder the
burden of showing that the amended plan’s remaining one-
race schools are not the result of present or past discrimi
natory action on their part as required by Swann, supra,
402 U.S. at 26” and because “adequate justification for the
retention of one-race schools must be supplied by the de
fendants. They have not done so.” (Pet. App. 102-03; see
also, id. at 105.)
Additionally, we do not understand why Petitioners re
fer to counsel for Respondents as “ NAACP lawyers”
(Pet. Br. 4, 5). Among counsel for respondents during the
course of proceedings in this matter have been salaried
attorneys employed by several different organizations, in
cluding the NAACP (as well as attorneys in private prac
tice) ; but the NAACP is not a party to the case and the
identification of counsel is without significance.
3
Statement of Facts1
Introduction
In school desegregation matters, as in other constitu
tional cases, the facts are critical to an informed judgment.
Petitioners have confined their recitation of facts (Pet. Br.
7-39) to the specific examples of segregative actions enu
merated in the trial court’s opinion and to other evidence
which Petitioners believe weighs in their favor.2 The mass
of evidence considered by the district judge in reaching the
conclusion that there had been systematic, systemwide se
gregation in the Columbus public schools is hardly ad
1 The form of citations employed throughout this Brief is as fol
lows : The opinions below, reprinted in the Appendix to the Petition
for Writ of Certiorari, are cited “ Pet. A p p .------ That portion of
the testimony and evidence printed in the Appendix is cited “A.
------ .” Because of the volume of the testimony and exhibits in the
trial court, every effort was made to limit the amount of material
designated for inclusion in the printed Appendix, see Sup. Ct.
Rule 36(2). The major portions of plaintiffs’ proof of segregation
by Columbus school authorities have been included in shortened,
excerpted form. Nevertheless, at various places throughout this
Brief it has been necessary to refer to additional evidence in the
record. Where reference is made to oral testimony at the hearings
on liability held between April 19 and June 17, 1976, it is cited
“L. Tr. ------ .” Where reference is made to oral testimony at the
hearings on remedy held in 1977, it is cited “R'. T r .------ .” Exhibits
not reprinted in the Appendix will be identified as introduced at
either the liability or remedy hearings, respectively, through use of
the letters “L” and “R” and will be cited in accordance with Sup.
Ct. Rule 40(2) ; for example, “PI. L. Ex. •—— , L. Tr. ------ .” In
accordance with the request of the Clerk of this Court,, the trial
exhibits were not transmitted as part of the record; however, some
of the most important trial exhibits have been withdrawn from the
district court and lodged with the Clerk of this Court so that they
will be available for inspection if desired. See note 6 infra.
2 On occasion, Petitioners err in their description of the record
evidence or propose inapposite comparison of exhibits which are not
compatible. These misstatements are noted as appropriate in the
course of the factual summary which follows.
4
verted to.3 For this reason, we believe that a full
presentation in our Brief of the record evidence which
supports Bespondents is necessary.
There is an additional ground why complete factual
documentation is indispensable in this instance. Some of
the legal questions posed by Petitioners, we contend, do not
actually arise on this record. Their presence in this case is
traceable to misconceptions about the evidence and to lan
guage used (perhaps too loosely) by the Court of Appeals.
For example, this case does not involve the application of
legal presumptions to proof of only “ isolated” constitu
tional violations (compare Pet. Br. 3). An accurate evalu
ation of the judgments below requires an adequate factual
exposition.
The district court had before it an unprecedented amount
of information about the policies and practices of Colum
bus public school authorities, from formation of the dis
trict in the 1820’s through the date of trial. A significant
portion of the historical pre-1954 evidence was documen
tary— and the documentation was maintained by the school
system’s own historian. (A. 254-55.).4 In addition, wit
3 In some instances Petitioners seem to contest the district court’s
school-specific findings as expressed in the opinion (e.g., Pet. Br.
22-24). Petitioners also contest the overall finding of systemwide
segregation made by the trial court on the basis not only of the
incidents detailed in his opinion but also of the entire record (see
Pet. App. 94-95). Since those findings were explicitly affirmed by
the Court of Appeals (e.g., Pet. App. 172-73, 198-99), debating
the evidence here would seem to be precluded by the “ two-court”
rule. See Berenyi v. Immigration Serv., 385 U.S. 630 (1967). How
ever, because Petitioners’ argument may be construed as a claim
that the findings are “ clearly erroneous” on the part of both courts
below, see Brainard v. Buck, 184 7J.S. 99, 105 (1902), the “ two-
court” rule may not bar their review. But this underscores the
importance of examining the entire record.
4 Petitioners deprecate the testimony of Myron Seifert (Pet. Br.
39, 69 n.35) but they fail to identify him as a school system em
ployee who collected and maintained historical material about the
Columbus school system as part of his official duties (A. 255). Nor
5
nesses testified from personal recollection dating back at
least to 1916 about the school system’s discriminatory prac
tices; this testimony was basically undisputed by Peti
tioners.5
For both legal and factual reasons, the pre-1954 history
of the Columbus public school system is of significance in
this case. First, the district court explicitly found that
. . . the Columbus school system cannot reasonably be
said to have been a racially neutral system on May 17,
1954. The then-existing racial separation was the di
rect result of cognitive acts or omissions of those
school board members and administrators who had
originally intentionally caused and later perpetuated
the racial isolation, in the east area of the district,
of black children and faculty at Champion, Mt. Vernon,
Garfield, Felton and Pilgrim . . . .
. . . As a result, in 1954 there was not a unitary school
system in Columbus. (Pet. App. 11.)
The Court of Appeals upheld this finding (Pet. App. 159-
60). Hence, unless both courts below were wrong, when
have Petitioners ever denied the accuracy of the facts and occur
rences about which he testified, nor presented record evidence to
refute his testimony.
5 Petitioners now characterize this testimony as “ subjective” and
of “little probative value” (Pet. Br. 39) but they never rebutted
it and have never denied that the events took place. See, e.g.,
Taylor v. Board of Educ. of New Rochelle, 191 F. Supp. 181, 184
(S.D.N.Y. 1961). In contrast, after one of plaintiffs’ witnesses
described an incident involving reassignment of his child from one
school to another in 1952, an incident which he interpreted at the
time as demonstrating racial discrimination (L. Tr. 2026-36), Peti
tioners produced class rosters, monthly school enrollment reports,
newspaper clippings, pupil census cards (L. Tr. 4612-33), and a
woman who was employed for less than a single school year in
1952 as a substitute teacher by the Columbus publie school's (L. Tr.
4713-21) in order to demonstrate that this action did not have a
racial purpose or effect.
6
Brown II was decided in 1955, the Columbus board was
cleaily charged with the affirmative duty to take whatever
steps might be necessary to convert to a unitary system in
which racial discrimination would be eliminated root and
branch,” Green v. County School Bd. of New Kent County,
391 U.S. 430, 437-48 (1968); see also, Keyes v. School Dist.
No. 1, 413 U.S. 189, 203 (1973). Second, the pre-1954 ac
tions are also relevant because many of the devices and
techniques utilized by the Columbus school authorities
prior to Brown to maintain segregation are identical or
similar to actions taken in later years. The pre-1954 vio
lations are thus persuasive evidence of the system’s intent
in implementing decisions after that date which entrenched
or extended pupil and faculty segregation in its schools.
Cf. Keyes v. School Dist. No. 1, supra, 413 U.S. at 207,
citing 2 J. Wigmore, E vidence (3rd ed. 1940).
For the period 1957 through 1975, because more of the
official records were extant, the operations of the school
system were examined and analyzed in even greater detail
before the district court. Directories indicating the exact
location of every school attendance boundary and optional
attendance area during those years permitted the prepara
tion of demonstrative exhibits which allowed the trial court
to evaluate visually the impact of pupil assignment devices
used by the system. Maps of the district showing the resi
dential distribution of the white and non-white population
of Columbus in 1950, 1960, and 1970, as recorded by the
U.S. Census, both aided that evaluation and also corrobo
rated the testimony of witnesses about Columbus residen
tial patterns at the time when school zones were established
and modified.6 Beginning with the 1964-65 school year,
6 These demonstrative exhibits, PI. L. Exs. 250-52, L Tr 3897
(base maps), PL L. Exs. 261-320, L. Tr. 3898 (attendance zone
7
both enrollment and faculty and principal assignment data,
by race, were available.
In 36 trial days of hearing on liability, covering more
than 6000 pages of transcript, more than 70 witnesses and
750 exhibits were presented by the parties. Based upon all
of the evidence, the trial court concluded that
the Columbus Public Schools were openly and inten
tionally segregated on the basis of race when Brown I
was decided in 1954. The Court has found that the
Columbus Board of Education never actively set out
to dismantle this dual system. The Court has found
that until legal action was initiated by the Columbus
Area Civil Rights Council, the Columbus Board did
not assign teachers and administrators to Columbus
schools at random, without regard for the racial com
position of the student enrollment at those schools.
The Columbus Board even in recent times, has ap
proved optional attendance zones, discontiguous at
tendance areas and boundary changes which have
maintained and enhanced racial imbalance in the Co
lumbus Public Schools. The Board, even in very recent
times and after promising to do otherwise, has ab
jured workable suggestions for improving the racial
balance of city schools. (Pet. App. 61.)
. . . The evidence in this case and the factual deter
minations made earlier in this opinion support the
finding that those elementary, junior, and senior high
schools in the Columbus school district which pres
ently have a predominantly black student enrollment
have been substantially and directly affected by the
overlays), and PI. L. Bxs. 336-38, L. Tr. 3899 (new construction
overlays) have been lodged with the Clerk of this Court and are
available for the Court’s inspection.
8
intentional acts and omissions of the defendant local
and state school boards. (Pet. App. 73.) (emphasis
added.)7
After this Court’s opinion in Dayton Bd. of Educ. v. Brink-
man., 433 U.S. 406 (1977) was announced, the district court
repeated its findings:
. . . Viewing the Court’s March 8 findings in their
totality, this case does not rest on three specific vio
lations, or eleven, or any other specific number. It
concerns a school hoard which since 1954 has by its
official acts intentionally aggravated, rather than al
leviated, the racial imbalance of the public schools it
administers. These were not the facts of the Dayton
case.
Systemwide liability is the law of this case pending
review by the appellate courts. 429 F. Supp. at 266.
Defendants had ample opportunity at trial to show,
if they could, that the admitted racial imbalance of the
Columbus Public Schools is the result of social dynam
ics or of the acts of others for which defendants owe
no responsibility. This they did not do, 429 F. Supp.
at 260. (Pet. App, 94-95) (emphasis supplied.)
Despite this rather clear statement, Petitioners insist
upon arguing this case as if the conclusions of current,
systemwide impact of their own segregatory actions are
based solely on the examples of such actions set out at
length in the trial court’s opinion, combined with “ legal
presumptions.” They repeatedly refer to “ remote and iso
la te d ” acts of segregation, and attempt to support this
thesis by lifting from its context a single sentence used by
7 The district court’s findings with respect to the State of Ohio
defendants were remanded by the Court of Appeals (Pet. App.
208) and are thus not at issue in this Court.
9
the Court of Appeals in its opinion affirming the district
court’s judgment:
These instances can properly he classified as isolated
in the sense that they do not form any systemwide
pattern. (Pet. App. 175.)
Not only does this language of the Court of Appeals
refer explicitly only to a portion of the evidence before the
district court, compare Pet. App. 166-74, but it is a char
acterization not made by the trial court. As we show be
low, the evidence in this case demonstrates the consistent
adoption of segregative devices by the Columbus school
authorities up to the very eve of trial. The Court of Ap
peals’ statement must be read in light of the record to
mean only that the Columbus school authorities did not
succeed in segregating every black student from every
white student through the segregative pupil assignment
devices discussed under the heading of “ Gerrymandering,
Pupil Options, Discontiguous Pupil Assignment Areas,
Etc.” (Pet. App. 174), especially since the Court of Ap
peals’ opinion goes on to recognize that this evidence was
most significant because it indicated that the board’s selec
tive invocation of the “neighborhood school” concept was
but a pretext for a policy of segregation (Pet. App. 175).
Consideration of all of the evidence may not be neces
sary to interpret the remark in perspective, but meticulous
appraisal of the record is crucial because of the pivotal
significance accorded the Court of Appeals’ language in
Mr. Justice Rehnquist’s stay opinion, Pet. App. 213:
. . . In both cases the Court of Appeals employed
legal presumptions of intent to extrapolate system-
wide violations from what was described in the Colum
bus case as “ isolated” instances, [citation omitted] The
Sixth Circuit is apparently of the opinion that pre
10
sumptions, in combination with such isolated viola
tions, can be used to justify a systemwide remedy
where such a remedy would not be warranted by the
incremental segregative effect of the identified viola
tions. . . .
Even if we are wrong about the meaning of the Sixth Cir
cuit’s sentence in context, this Court must carefully weigh
the trier of fact’s determination in light of the entire rec
ord. For if the evidence supports the judgment which the
Court of Appeals affirmed, then that judgment must be
allowed to stand and the remedial decrees of the trial court
implemented. See Massachusetts Mut. Life Ins. Co. v.
Ludwig, 426 U.S. 479 (1976), and cases cited.
A. Pre-1954 Operation of the Columbus Public Schools.
1. Demography. The Columbus district radiates in all
four directions from the downtown intersection of Broad
and High Streets. The shortest and narrowest of its four
“ arms” lies to the west, across the Scioto River; to the
east, prior to 1950 the district extended around three sides
of the City of Bexley (which it now entirely surrounds).
To the north, it included a wide band of territory on both
sides of the Olentangy R iver; and to the south was a slight
ly narrower and shorter extension. As the district court’s
opinion recites, the Columbus district has significantly in
creased in area since 1950 (Pet. App. 12). In particular,
since that time the district has expanded substantially to
the east, southeast, and northeast. (Compare Fig. 3, PL L.
Ex. 59, L. Tr. 3882, at 7 [1950 Ohio State University
study] with PI. L. Exs. 320, 252, L. Tr. 3897, 3898 [over
lay of 1975 senior high school attendance areas over 1970
census].) The arena of concern during the pre-Brown
years is accordingly the smaller unit. (See also, Fig. 14,
11
PL L. Ex. 58, L. Tr. 3882, at 111 [1939 Ohio State Uni
versity study].)
Prior to 1954 the black population of the city was located
generally in the central and east-central portions of the
district (see, for example, the 1950 census map, PI. L. Ex.
250, L. Tr. 3897). The Columbus Board of Education con
structed its first all-black schools in this area, and the evi
dence of pre-1954 constitutional violations in this case
concerns that area almost exclusively. For the convenience
of the Court in following the summary of that evidence, a
line drawing of the area to the east and north of the
Broad-High intersection is reproduced on page 13.8
2. Early history: compulsory segregation. The evidence
demonstrates that racial segregation of students and teach
ers has been a recurrent theme in public education in Co
lumbus since free schooling was first made available. Prior
to 1848, free blacks were excluded from the public schools
(though they were also exempted from contributing prop
erty taxes used for education) (PI. L. Ex. 351, L. Tr. 3902,
at 3). Thereafter, Ohio mandated separate “ colored”
schools in any district having 20 or more black children
(id.). Following the Civil War, the pattern of segregation
was continued. Black elementary students in Columbus
were assigned to separate schools; a Board of Education
plan to house all Negro students in a facility on Sixth
Street, no matter what their place of residence or the dis
tance they had to travel to get there, provoked opposition
8 This drawing was prepared by tracing from the map at PI. L.
Ex. 376, L. Tr. 3907, at 8, and adding indications of the approxi
mate locations of the American Addition and Eleventh Avenue
School, both to the north. School names are in italics and locations
indicated by heavy dots.
12
from a black leader (A. 256-58; PL L. Ex. 351, L. Tr. 3902,
at 113-14). Compulsory segregation in public education
was upheld against a Fourteenth Amendment challenge by
the Ohio Supreme Court in 18719 (Pet. App. 7-8) and the
state legislature reaffirmed this holding in 1878 when it
adopted a permissive school segregation statute, 75 Ohio
L. 513 (Pet. App. 8).
In the meantime, the Columbus School Board rebuilt a
facility for Negro grade school students (the Loving
School), named for the Board member who had shown
the greatest concern for the education of Negro children
even though he was highly critical of its location and
adequacy (A. 258-59; PI. L. Ex. 351, L. Tr. 3902, at 16;
see also, Dr. Loving’s later report of the building’s defects,
A. 264-66; PI. L. Ex. 351, L. Tr. 3902, at 33).
3. Segregation ended and reinstated. In 1881 the Board
was finally persuaded to close the Loving School (A. 266,
270-71; PI. L. Ex. 351, L. Tr. 3902, at 44-45). For almost
three decades thereafter, the Columbus schools were offi
cially not segregated— although the subject of a return to
the practice of racially separate schools arose repeatedly
(see A. 271-72, PL L. Ex. 351, L. Tr. 3902, at 46, 49-51).
The system also hired a few black teachers during this
time.10
9 State ex rel. Games v. McCann, 21 Ohio St. 198 (1871).
10 Columbus operated not only a twelve-grade elementary and
secondary system, but also a “Normal School” to prepare high
school graduates for teaching careers (see A. 178), but the first
black to complete high school in the city did not receive a diploma
until 1878 (A. 262; PI. L. Ex. 351, L. Tr. 3902, at 26; Pet. App. 8).
Approx, loca- Approx, loca
tion of 11th ^ t ion of Amer-
Avenue School ican Addi t ion
14
By 1907 the Board of Education was again under com
munity pressure to restore school segregation; it requested
an opinion from the City Solicitor concerning the legal
permissibility of such a course (A. 365-67; PI. L. Ex. 351,
L. Tr. 3902, at 58) and was eventually advised that explicit
segregation was invalid under Ohio law11 (L. Tr. 3169-70).
However, the Board decided to purchase a site and con
struct a new facility on Champion Avenue (A. 273-76). This
decision was widely viewed as a means of effectuating
segregation: when first announced, it resulted in presenta
tion of a petition to the school board from Negroes who
feared that this was the Board’s purpose (A. 370-72) ;12 and
it was reported in the press as a “ Clever Scheme to Sepa
rate Races in Columbus Schools” (A. 272-73, 370). By
January, 1910, when construction of the facility was nearly
complete, a newspaper story reported, “Negroes to have
fine new school” staffed entirely with black teachers (A.
276-79, 372).
Despite the protests, the newspaper stories proved ac
curate. The Champion Avenue School was located midway
between two existing facilities (the Twenty-Third Street
[now Mount Vernon Avenue] and Eastwood Avenue
Schools), approximately three blocks from each. (See p.
13 supra.) An attendance area for the school was created
from the former Twenty-Third Street and Eastwood
Avenue zones such that more than 90 percent of the resi-
11 In 1887 the Legislature repealed Ohio’s permissive segregation
statute, 84 Ohio L. 34, and despite its earlier McCann ruling be
fore the statute was enacted, the Ohio Supreme Court ruled that
the repeal made segregation illegal in the state. Board of Educ.
v. State, 45 Ohio St. 555, 16 N.E. 373 (1888) ; see Pet. App. 8.
12 In 1907, the school board’s request for an opinion on segrega
tion from the City Solicitor also produced a protest petition from
the black community, in which it was alleged that “ the boundary
lines of certain school districts in this city [had already so] been
drawn as to segregate colored children . . . ” (A. 367-70).
15
deuces within the zone were occupied by black families,
compared to less than four percent in the new areas for
the other two schools (A. 377-78; L. Tr. 3310-15).13 Black
teachers were reassigned from other schools to Champion
(A. 179-80); in 1916, a black applicant was told that
Champion was the only school in the system at which
Negro teachers would be hired (A. 180; see also id. at 188).
Champion was the only school in Columbus which had a
black principal (L. Tr. 176-77).
4. Extending segregation: grade restructuring, optional
zones, faculty replacement, boundary changes, and gerry
mandering. As the black population in Columbus grew, the
educational authorities embarked upon a series of actions
to maintain a high degree of racial separation in the public
schools. In 1922, the same year that Pilgrim Junior High
School opened, ninth grade students were withdrawn from
23rd Street and added to Champion’s enrollment despite
protests that this would further reduce most Columbus
black children’s opportunity for an integrated educational
experience (A. 378-79; L. Tr. 3324-28). In 1925, as the
black population expanded westward toward the business
center, the Board created the so-called “Downtown Option” .
Students residing within this large area (which included
the zone of the former Spring Street School, which was
integrated in 1921, L. Tr. 136-37) could elect to attend any
13 A black parent brought suit against the Board, challenging
the zone established for Champion as part of a plan to operate a
segregated school in violation of Ohio law. The complaint pointed
out, for example, that the northern boundary of the Champion zone
was an alley immediately adjacent to the site of the 23rd Street
School (A. 373-76). The Board claimed that construction of a new
facility was made necessary because of overcrowding and because
junior high school grades were being established at the 23rd Street
School (see A. 178), which Champion would feed (L. Tr. 3306).
The state Circuit Court dismissed the suit, holding that it had no
authority to interfere with the Board’s administration of the school
system (A. 376-77).
16
of the surrounding schools, which varied widely in their
racial compositions. White students could thus avoid at
tending the closest facilities if they happened to be inte
grated or predominantly black (A. 478-86).14 By 1928,
many black students were attending the Twenty-Third
Street School; it was renamed the Mt. Vernon Avenue
School and its white principal and faculty were replaced
with a principal and staff of black teachers (A. 315).
That same year, the Champion facility was enlarged (L.
Tr. 3349). Attendance areas for Champion and Mt. Vernon
were altered in 1931 with a concomitant reduction in size
of the Eastwood zone. The Champion boundaries were
expanded eastward to Taylor Street and south to Long
Street to add black residences formerly in the Eastwood
zone, and a portion of the Eastwood area south of Long
Street and east of Ohio Avenue was added to Mt. Vernon
School (L. Tr. 3351-57). (See p. 13 supra.) Eastwood’s
enrollment further declined in 1932, when students in sev
eral grades residing in the Eastgate subdivision were
housed in a portable building in that area (A. 383-84).
Then in 1933, the Eastwood facility was shut down entirely.
White students residing in the eastern portion of its former
zone were assigned to a “ school” composed solely of port
able buildings located in the predominantly white Eastgate
subdivision across Woodland Avenue,15 16 while white stu
dents in the western end of its zone (as altered in 1931)
14 The “Downtown Option” was paralleled by an optional atten
dance area, or “neutral zone” , at the junior high school level (L.
Tr. 3345-47).
16 As early as 1925, the Board had created a similar “ portable
school,” this one staffed entirely with black teachers, for black stu
dents living in the “ American Addition” well to the north (see
p. 13 supra), rather than accommodate these children at nearby
Leonard Avenue Elementary. Black junior high school students
living in this area were required to attend Champion rather than
the closer schools with junior high grades—Pilgrim and Eleventh
Avenue. Not until 1937 did the school system provide these stu-
17
were assigned to the predominantly white Fair Elementary
School south of Broad Street (A. 384-86). None of the
white former Eastwood pupils were reassigned to Cham
pion or Mt. Vernon (A. 181). (Cf. L. Tr. 150-51.)16
In 1932 the Garfield Elementary School was converted
from an all-white to an all-black faculty and principal (A.
315). That year also, the Board detached the virtually
all-white Eastgate and Shepard Elementary areas from
the nearby Pilgrim junior high school zone and, despite
vehement protest about segregation (L. Tr. 3936-38), trans
ferred them to the more distant Franklin Junior High, to
the south below Broad Street (A. 380-83). This action re
moved a significant number of white students from Pilgrim
and signaled its expected transformation into a school for
black children. The transformation was completed in 1937
when an all-black faculty was transferred to the Pilgrim
school (A. 184-85). It was made an elementary-level facil
ity, and Champion became a junior high school serving
graduates of the newly created black elementary schools
(Mt. Vernon, Garfield and Pilgrim) (A. 387-89).* 16 17 Franklin
dents with transportation to Champion. (L. Tr. 3334-43.) The
all-black elementary grades in portables remained in the American
Addition until a new Superintendent of Schools arrived after 1949.
He found deplorable conditions and directed that the students be
housed in vacant classrooms at Leonard (A. 574-75).
16 Looking back on this 'sequence of events in 1941, the Vanguard
League_ (an integrated civic group, see A. 194-95; L. Tr. 182)
complained that the low enrollment at Eastwood which was used
to justify its closing -was the result of the 1931 zone changes. The
League recommended that Eastwood be reopened (A. 386-89 • PI
L. Ex. 51H-5(b), L. Tr. 3994.)
17 The 1938 attendance zone maps at Figs. 13-14, pp. 107, 111
of the 1939 Ohio State University facilities study, PI. L. Ex. 58,
L. Tr. 3882, indicate that the zone for Champion Junior High
also included the Felton Elementary area. Although the exact
racial enrollment of Felton at this time is not known, by 1943 it
was a heavily black school and a black principal and staff were ‘
reassigned there (see text infra).
18
Junior High (south of Broad Street), on the other hand,
served the still-white Fair, Douglas, Eastgate, and Shepard
elementary schools although Shepard and Eastgate were
well north of Broad (compare Figs. 13 and 14, PI. L. Ex.
58, L. Tr. 3882, at 107, 111). Both Champion and Pilgrim
were provided with used furniture and hooks (A. 182-84;
L. Tr. 162-63), and black children living in the vicinity of
other elementary schools were assigned to those two
schools (A. 184; note 15 supra). White students living
within their attendance zones, however, were permitted to
enroll in other schools (A. 191).
After Pilgrim was changed to a grade school, the atten
dance zone for Fair Elementary retained the former East-
wood areas reassigned to Fair in 1933, and also extended
far north of Broad Street, very close to Pilgrim—now also
an elementary school (see Fig. 14, PI. L. Ex. 58, L. Tr. 3882,
at 111). It was gerrymandered to exclude black students
from Fair (Pet. App. 9), as vividly described in a 1944
pamphlet of the Vanguard League,18 “Which September ?”
(PI. L. Ex. 376, L. Tr. 3907 at 7 ):
School districts are established in such a manner
that white families living near “ colored” schools will
not be in the “ colored” school district. The area in the
vicinity of Pilgrim school, embracing Richmond, Park-
wood, and parts of Greenway, Clifton, Woodland, and
Granville streets, is an excellent example of such
gerrymandering. A part of Greenway is only one
block from Pilgrim school, however, the children who
live there are in the Fair Avenue school district, twelve
and one half blocks away!
A more striking example of such gerrymandering is
Taylor and Woodland Avenues between Long Street
18 See note 16 supra.
19
and G-reenway. Here we find the school districts skip
ping about as capriciously as a young child at play.
The west side of Taylor Avenue (colored residents) is
in Pilgrim elementary district and Champion Junior
High. The east side of Taylor (white families) is in
Fair Avenue elementary district and Franklin for
Junior High.
Both sides of Woodland Avenue between Long and
Greenway are occupied by white families and are,
therefore, in the Fair Avenue-Franklin district. Both
sides of this same street between 340 and 500 are oc
cupied by colored families and are in the Pilgrim-
Champion, or “colored” school, district. White fami
lies occupy the residences between 500 and 940, and,
as would be expected, the “white” school district of
Shepard-Franklin applies.
In 1943 yet another school (Felton) was officially con
verted into a black school by replacing its entire white
faculty and administrative staff with blacks (A. 195, 313-
15; Pet. App. 9-10). Thus by the end of World War II,
five schools in east Columbus had been created and identi
fied as black schools by Board action. At the same time, a
facility (Eastwood) which would have been integrated, had
it remained open, was closed and its attendance area
divided among black (Mt. Yernon and Champion) and
white (Eastgate portable and Fair) schools. The area of
east Columbus within which the five black schools had
been created and maintained was hardly insubstantial; in
1950 it included the major share of black residences in the
city (see PI. L. Ex. 250, L. Tr. 3897).
Yet desegregation of these schools within the constraints
of the operational practices of the Columbus school system
was possible at all times. By drawing zone lines on a
20
north-south basis across Broad Street prior to 1954— as
the school board was whiling to do when Eastwood was
closed in 1933, in order to provide white students living
east of Woodland Avenue with an alternative to predom
inantly black Champion or Pilgrim—desegregated student
bodies at all of the schools in the area could have been
achieved and maintained. Particularly if the same tech
niques utilized to preserve segregation had been employed
to avoid it (conscious shaping of attendance boundaries
and transportation of pupils, as was done in the case of
the American Addition pupils), a stable situation in which
the existence of racially isolated white and black schools
would not have provided an incentive for residential re
location (compare A. 240-41) could have been created.
Certainly there was no educational impediment to such
possibilities. For the school system’s willingness to have
children living in the “Downtown Option” area— or in the
American Addition—travel long distances to reach their
classes19 refutes any possible claim that desegregation was
infeasible prior to 1954. Furthermore, as suburban areas
were annexed to Columbus in the decades following Brown,
school authorities more and more frequently made use of
pupil transportation (busing) to get pupils to school fa
cilities.20 However, pupil transportation was eschewed when
it would have resulted in desegregation.21
19 This is graphically apparent on the overlay of the 1957-58 ele
mentary school zones, Pl. L. Ex. 261, L. Tr. 3898.
20 See, for example, the Willis Park Elementary zone in 1958-59,
PI. L. Ex. 262, L. Tr. 3898. By the time of trial, the system trans
ported more than 9,000 pupils daily exclusive of transfers under
its voluntary desegregation program (A. 233-34). See also, A. 229-
31, 400.
21 Prom 1956-75, Columbus did transport classes from crowded
schools to those with space available (A. 401-02). In many in
stances, white pupils were bused from one white school to another
white school, and black pupils from one black school to another,
21
Throughout the period, black faculty were assigned in
rigidly segregated fashion, only to schools with black
students (A. 188-89). There were no black principals of
predominantly white schools or white principals of pre
dominantly black schools (A. 402-06; L. Tr. 176-78; Pet.
App. 10). When a new Superintendent of Schools arrived
on the scene in 1949, he found systemwide faculty segre
gation (A. 573-74). Racial designations appeared on sub
stitute teacher assignment cards (A. 225-26; PI. L. Exs.
494B, 494C, L. Tr. 3921) and on enrollment reports sub
mitted by teachers (A. 685-87) and black substitute teachers
were assigned only to schools with black students (A.
187-88; L. Tr. 168-70).
In sum, when Brown I was decided, the Columbus school
system was riven with segregation. In the preceding 45
years the Board of Education disregarded complaints that
its actions were discriminatory and segregative. Tak
ing advantage of grade structure alterations, population
growth, and other systemwide patterns, it had utilized
construction, transportation, school closings, boundary
changes, grade restructuring, faculty and administrative
staff assignments to designate schools as intended for
despite the availability of receiving schools which were not similarly
racially identifiable (L. Tr. 3601-3620). At other times, this sort
of transportation had no racial consequences or could have had an
integrative effect (L. Tr. 5339-78). However, when black students
were sent to predominantly white schools, they were moved with
their teacher in class groupings, remained on the rolls of the send
ing school, and did not participate in academic activities with the
students at the receiving schools (A. 612-13). Sometimes they were
separated for recess and other functions as well (A. 701-14). The
Columbus system was insensitive to the humiliating connotation of
keeping black students confined to a separate classroom with a black
teacher in an otherwise predominantly white facility (A. 400).
Prom 1969-70 until 1973-74, for example, classes from Sullivant
(61% to 70% black) were transported on an intact basis to Bellows
(4% to 9.5% black) rather than adjusting the boundary, pairing
the schools, etc. (A. 639-40).
2 2
only black or white students. White students living in
east-central Columbus were “ protected” from having to
attend school with black children through precise gerry
mandering and optional zone techniques. The stigma of
black undesirability was reinforced by overcrowding and
inferior materials, equipment and facilities at black schools,
and by the absence of black administrators anywhere in
the system except at black schools. As the district court
aptly put it, . . the Columbus school system cannot
reasonably be said to have been a racially neutral system
on May 17, 1954” (Pet. App. 11).
B. Post-B row n Administration of the Schools.
Even after this Court announced that compelled segre
gation of the public schools was unconstitutional, Brown
v. Board of Education, 347 U.S. 483 (1954), Columbus
school authorities continued to employ a wide variety of
techniques to maintain significant, if not total, separation
of the races in its public schools. Because the enrollment
of the system grew sizably both as a result of the post-
World War II “baby boom” and also as the geographic
size of the district more than tripled through annexation
of adjacent territory, the school plant consistently grew
as well. The combination of residential relocation within
the pre-1954 area of the district and settlement of the
suburbs meant that numerous boundary adjustments,
school site and construction decisions, grade structure
modifications, and staff-faculty assignments had to be made
each year. The result was a high degree of school segre
gation (see PI. L. Exs. 461A-461D, L. Tr. 2135-36; A. 775-
87, L. Tr. 3909 [PX 383] ; PL L. Exs. 409A-409D, 448A-
448D, 450A-450D, L. Tr. 3910, 3911), which defendants
ascribed solely to their pursuit of “neighborhood schools.”
Plaintiffs sought to demonstrate, to the contrary, that the
only consistent policy of the school system was one lead
23
ing to increased segregation; that the Board used an ever-
changing concept of “neighborhood schools” to entrench
that segregation; and that every manner of exception to
“neighborhood schools” was tolerated in the interest of
segregation. The district court found “that the evidence
clearly and convincingly weighs in favor of the plaintiffs”
(Pet. App. 2).
1. Demography. BetwTeen 1954 and the present, the
Columbus school district has expanded along all four geo
graphic axes. Although there has been a nearly contin
uous series of annexations of small parcels of territory,
several major additions can be identified which account
for much of the total growth of the system. Annexations
from 1954 to 1955 included the airport, two small par
cels to the south, and a large tract to the south of the
City of Whitehall.22 None was densely settled at the time.23
By 1959, additional areas to the far north, around the
airport, immediately south of Columbus, to the east and
south of Whitehall, and at the edge of the district’s western
projection across the Scioto River, had been added, in
creasing its size by more than half.24 25 In a small annexed
area to the northeast, the Columbus district purchased
a site, constructed a building, and opened a new elementary
school (Arlington Park) in 1957.2B The major acquisition
was in 1957, involving a large section to the south of the
district and including several school buildings previously
operated by Marion-Pranklin Township.26 See Fig. 1, PI.
L. Ex. 62, L. Tr. 3882, at 7.
22 See Fig. 1, PI. L. Ex. 61, L. Tr. 3882, at 7.
23 Id. at 2, 5.
24 PI. L. Ex. 62, L. Tr. 3882, at 5.
25 Id. at 48.
26 Id.
24
Few significant additions took place between 1959 and
1964, except for an area north of McKinley Avenue along
the northern edge of the city’ projection toward the west.27
The same situation prevailed in 1969; a substantial amount
of territory to the west, north and northeast had been an
nexed by the City of Columbus but not added to the school
district.28 The major subsequent growth was to the north
east, in 1971. Compare, e.g. PI. L. Exs. 312, 320, L. Tr.
3898 [overlays of senior high school zones in 1967-68,
1975-76].
The same period of time witnessed school-age population
increases both within the “ old” district and in the annexed
areas. To serve this burgeoning school enrollment, Colum
bus undertook an ambitious school construction program.29
Between 1950 and 1975, a total of 103 new schools was
built (Pet. App. 21). Not all of these were to serve either
the annexed territory or areas of residential population
increase; the number includes reconstructions of schools
on the same site {e.g., Garfield and Franklinton) and re
placements of portables with a permanent facility {e.g.,
Fairmoor and Eastgate). Finally, the district made exten
sive renovations and building additions at almost every
school in the system during this period {see PI. L. Exs.
22, 23, L. Tr. 3881, 3991). For new facilities, attendance
27 Compare Pig. 1, PL L. Ex. 64, L. Tr. 3882, at 8 with Pig. 1,
PI. L. Ex. 62, L. Tr. 3882, at 7.
28 Compare id. with Pig. 1, PI. L. Ex. 63, L. Tr. 3882, at 13.
29 Columbus also consistently altered the capacities of its existing
facilities to reflect changing policy objectives chosen by the Super
intendent or the board. For example, the policy decisions to create
and site remedial classes, or to reduce pupil-teacher ratios, had
implications for building capacities. The choice and timing of such
decisions was almost always within the control of school officials,
who could opt to proceed integratively or segregatively. The deci
sion to site special programs at a particular school, for example,
was simultaneously a decision not to use that school’s space to re
lieve overcrowding at another, opposite-race, school.
25
zones had to be established and existing zones modified
(see A. 631, 398). As many as sixty boundary changes a
year were recommended to the school board for approval
(A. 242, 577; see A. 234-37). The exact location of the
building and the pupil capacity for which it is designed
limit the zone-drawing opportunities (along with admin
istrative decisions about pupil transportation) (A. 322-23,
643-44). Hence, Columbus’ multifaceted building program
between 1950 and 1975 presented the school board with
more than a thousand instances in which decisions would
have an impact on the racial composition of school en
rollments.30
At the same time, shifts in the residential location of
Columbus blacks were occurring, in patterns which were
apparent and well delineated. Between 1950 and 1960, for
example, the black population settled in substantial num
bers to the south of Broad Street in the east-central por
tion of the city which was the locus of most pre-Broivn
segregation. (Compare PI. L. Ex. 251, L. Tr. 3897, with
PI. L. Ex. 252, L. Tr. 3897.)31 By 1960, blacks predom
30 This is not a case in which the school board has suggested by
way of defense that it attempted to avoid segregation but was un
done by population shifts which it had been unable to anticipate.
The school system’s employees who had responsibility for the estab
lishment and alteration of recommended attendance zone boundaries
testified that they had never sought to avoid segregation or racial
imbalance (e . g A . 406; cf. A. 577, 598-99 [Ohio State study teams
never instructed to consider race]). Even after the school board
in 1967 adopted a formal policy of considering racial balance when
drawing attendance zones (Pet. App. 16; see A. 684-85), the policy
was disregarded when it might otherwise have feasibly been ap
plied to schools already in existence or previously planned (A. 361,
606).
31 The census maps for 1950, 1960 and 1970 were based on block
data, which results in a more accurate representation of population
movement than use of figures aggregated into larger census tracts
(A. 192). Census “ blocks” are not, however, identical to city blocks
and where land is devoted to institutional use or density is sparse,
census “blocks” may be as large as tracts (L. Tr. 281-83).
26
inated in the area of the Eastgate school established in
1933 and were a substantial, but not majority proportion,
of the residents in the Shepard zone (id.).
The black population also moved northeast toward the
Linden area. Where there had been comparatively few
blacks living north of 5th Avenue in 1950 (see PI. L. Ex.
250, L. Tr. 3897), by 1960 there were substantial numbers
south of 17th Avenue—especially east of the Pennsylvania
Railroad lines (see PI. L. Ex. 251, L. Tr. 3897). At least
prior to the passage of the Fair Housing Act of 196832
(and in reality for most if not all of the period there
after), widespread racial discrimination limited and chan
neled the residential mobility of Columbus blacks. Realtors
could describe with precision what areas or streets were
“ approved” for Negro residence at any given time (A.
244-46; L. Tr. 1504-21, 2148-56; cf. L. Tr. 1298-1305). The
minority population also increased in the areas immedi
ately adjacent to small Negro settlements which had
existed in 1950 in the middle of the district’s western
projection, and to what was the extreme south of the dis
trict prior to the 1957 annexation from Marion-Franklin
Township (see PI. L. Exs. 250, 251, L. Tr. 3897).
These trends continued and accelerated in the 1960’s
(see PI. L. Ex. 252, L. Tr. 3897 [1970 census]; L. Tr. 288).
Thus, not only the activity in the area east and north of
the High-Broad intersection, but also most of the other
school construction and zoning decisions made by the
school board had a direct and immediate impact on the
minority composition of the Columbus public schools. As
the district court found (Pet. App. 25):
This opportunity [to bring about integration rather
than segregation through school construction and
82 42 U.S.C. §§3601 et seq.; see also, Jones v. Alfred E. Mayer
Co., 392 U.S. 409 (1968).
27
zoning without pupil transportation] existed, and con
tinues to exist in those areas of the city where the
population shifts from one race to another. An ex
amination of the census maps for the years 1950, 1960
and 1970 discloses a general pattern of high density
(50 to 100%) black population in the center of the
city fringed by areas of lesser, but still substantial
(10% to 50%), black population. The remainder of
the city is predominantly white, although there are
pockets of white population within the central city
area, and pockets of black population in the outlying
areas.
Unfortunately, these opportunities to avoid segregation
were not seized. Instead, the consistent result of school
board policy and action since 1954 has, with rare excep
tion, been to keep blacks in black schools where they are
located in established areas of black residence, and to pro
tect whites from attending schools with substantial black
student populations for as long as possible in areas into
which blacks were moving.33 Despite the growth of the
system in absolute terms and the redistribution of white
and minority population, there has been little change in
the patterns of school segregation (PI. L. Exs. 458, 460,
L. Tr. 2135-36).34
33 This was the pattern of school hoard actions in the Park Hill
area held segregative in Keyes v. School Dist. No. 1, Denver, 303
F. Snpp. 279, 289 (D. Colo'. 1969), aff’d 445 F.2d 990 (10th Cir.
1971), vacated and remanded on other grounds, 413 U.S. 189
(1973); see 413 U.S. at 199 n. 10 and accompanying text. See also,
Milliken v. Bradley, 418 U.S. 717, 725-26, 738 n. 18, 745 (1974).
34 These exhibits indicate that in 1964, 36.3% of Columbus’ black
student enrollment was in schools over 90% black, and in 1975,
the corresponding figure was 30.2%. At the elementary grade level,
the percentage of black students in schools at least 90% black in
1964 was 38.1%; in 1975-76 it had declined only to 34.6%. Seg
regation actually increased during the middle of that time span;
2 8
2. Post-Brown actions leading to segregation. In his
opinion on liability, the district judge remarked that
[t]he complexity and the sheer volume of the evi
dence presented in this case have delayed this opinion
long past the point at which the Court would have
preferred to have rendered a decision.
(Pet. App. 2.) Based upon his extensive and thorough
review of that evidence, as noted above (pp. 7-8 supra) the
district court found system-wide intentional segregation
having pervasive current effects. Because the district
court’s opinion elaborates only upon examples of post-1954
discrimination by the school authorities, rather than
setting out every act at every school (e.g., Pet. App. 21,
29, 61; cf. Pet. App. 94),85 this case has been portrayed
as one involving only isolated segregative acts. (E.g., Pet.
Br. 19, 22). See discussion, pp. 3-10 supra. In the factual
summary which follows, we attempt to sketch the over
whelming nature and broad compass of the evidence which
supports the trial judge’s ultimate findings.36 In the dis- * 86
in 1970-71 51.7% of black elementary pupils and 45% of all black
pupils were in virtually all-black schools. PI. L. Ex. 459, L. Tr.
2135-36.
86 See Keyes v. School Dist. No. 1, supra, 413 U.S. at 200.
86 The evidence may be placed in three categories according to
its treatment by the district court. First, certain evidence was fully
described in the trial judge’s opinion, such as that involving the
pattern's of faculty and principal-assistant principal assignments.
(See Pet. App. 14-15, 60-61). Second, a large body of evidence
was not summarized in detail in the opinion; but instead, repre
sentative examples were set out. (See Pet. App. 20-42.) This evi
dence included not only other examples of those segregative devices
appearing in the internal headings of the court’s opinion (school
construction, optional attendance areas and boundary changes, dis
contiguous attendance areas, the Innis-Cassady alternatives) but
also other practices of the sort described (school-to-scbool transpor
tation to relieve overcrowding, see note 21 supra; rental of non-
school facilities for the same purpose, other boundary line shifts,
29
trict court and Court of Appeals’ opinions, this evidence
was grouped by administrative technique; this method of
presentation necessarily fragmented an either geographic
or chronological overview of segregation in the Columbus
public schools, and it may have contributed to the picture
of the evidence as a group of “ isolated instances.” Be
low, we attempt a somewhat different organization of the
evidence in order to show the extent to which segregation
was practiced throughout all geographic areas of Colum
bus and during all of the more than score of years between
Brown I and the trial of this matter.
a. Faculty amd staff assignment policies. As noted above,
Columbus school faculties were rigidly segregated in 1949.
Former Superintendent Fawcett testified that by the time
he left his post in 1956, a start toward elimination of this
practice had been made with assignments of at least one
opposite-race teacher at each of approximately 38 schools
(A. 575). However, little alteration of the overall assign
ment pattern appeared prior to 1973. Although the pro
portion of black faculty systemwide increased in the dec
ades after Brown, most continued to be assigned to schools
where there were large numbers of black students. A
glance at statistics showing which schools had substantial
proportions of black faculty between 1964 and 1973 (racial
statistics are unavailable on a systemwide basis prior to
1964) gives a clear indication, with few exceptions, of the
schools with significant black populations. See A. 775-801,
L. Tr. 3909. Each of the 25 Columbus schools which has
had a majority-black faculty between 1964 and the time of
trial had a majority-black pupil enrollment at the time, with
grade restructuring, etc. Third, certain evidence presented by the
plaintiffs was found to lack “ sufficient impact to be helpful in the
resolution of the issues” (Pet. App. 20 n.2). In this brief, there
fore, we limit discussion to the first two categories.
30
only two exceptions: Mohawk Elementary in 1966, and
Heimandale. Indeed, every school whose faculty has been
30% or more black since 1964 was majority-black at the
time, except for Mohawk, Lincoln Park in 1968, and Heim
andale; the latter school was disproportionately black in
comparison to adjacent facilities (see pp. 48, 62-63 infra.
A. 775-801, L. Tr. 3909. See also note 164 infra.
In many instances, a school’s increase in black faculty
paralleled its increase in black student enrollment. (A. 775-
801, L. Tr. 3909.) For example:
1964 1965 1966 1967 1968 1969 1970 1971 1972
Alum Crest
% Black Students 50.0 70.0 80.0 72.9 67.3 77.0 78.6 86.4 78.5
% Black Faculty 33.0 40.0 40.0 50.0 42.9 40.0 46.2 87.5 77.8
Deshler
% Black Students 7.0 11.0 20.0 35.1 39.1 46.6 51.2 53.8 59.6
% Black Faculty — 4.2 8.3 — 7.7 12.5 12.5 20.6 16.2
Beery Jr.
% Black Students 22.3 20.0 35.0 39.6 54.1 61.4 66.9 67.2 68.9
% Black Faculty — — 3.1 7.5 10.8 7.5 20.9 19.5 27.3
Linmoor Jr.
% Black Students 60.0 70.0 75.0 84.4 88.7 89.6 92.5 95.0 97.2
% Black Faculty — 8.3 15.9 24.3 26.8 25.8 27.4 34.5 32.2
Roosevelt Jr.
% Black Students 39.6 43.0 45.0 55.8 55.5 55.1 68.2 69.6 74.4
% Black Faculty 5.1 8.8 8.6 9.5 12.5 15.2 19.1 23.3 34.7
Linden-MeKinley
% Black Students 12.1 15.0 34.0 45.0 49.4 55.8 62.2 79.9 89.6
% Black Faculty -—• 1.4 2.8 6.1 7.9 10.9 15.4 27.3 44.4
These faculty allocation practices were reinforced by the
assignment of black principals and assistant principals. At
the time of Brown all black principals were assigned to pre
dominantly black schools; no black held a high school prin-
cipalship. (Pet. App. 10; see p. 21 supra; A. 402-06.) Four
teen years later, 11 of 13 black principals were still at
schools more than 70% black (PL L. Ex. 448A, L. Tr. 3911).
31
A black bad finally readied the post at a senior high school
—but was working at East, then 98.9% black (A. 785; Pl.
L. Ex. MSB, L. Tr. 3911). As late as 1968, no black prin
cipal was assigned to a majority-white school (PI. L. Exs.
M9A, B, C, L. Tr. 3911). In 1972-73, 20 out of 24 black
princij)als were assigned to schools with student enroll
ments more than 70% black (PI. L. Ex. 450A, L. Tr. 3911).87
All three black principals of high schools in 1972-73 were
placed at such predominantly black facilities (PI. L. Ex.
450B, L. Tr. 3911). The Division of Administration was
aware of this pattern but made no recommendation that it
be altered when the assignment of principals was annually
reconsidered (A. 316-18, 401-06).
In 1972, as a result o f complaints filed by the Northwest
Columbus Area Council for Human Relations and the
Columbus Area Civil Rights Council, the Ohio Civil Rights
Commission commenced enforcement proceedings against
the school district for faculty segregation. In 1973, the
Commission and the school district reached a settlement
agreement contemplating reassignment o f faculty to each
school in racial proportions generally corresponding to the
systemwide representation of minority faculty members.
(See PI. L. Exs. 223, 229, 230; A. 253-54.) Recent school-
by-school figures reflect the reassignments made pursuant
to that agreement (see A. 789-801, L. Tr. 3909). However,
the Ohio Civil Rights Commission proceedings did not
involve the question of assignments for principals and as
sistant principals, and Columbus did not take voluntary
steps having a substantial impact. At the time of trial, 22
of 30 black principals, and 6 of 15 black assistant princi- 37
37 The assignment of assistant principals reflected much the
same patterns. In 1968-69, 2 of 6 black assistant principals were
at schools having enrollments greater than 70% black (PI. L. Ex.
448A, L. Tr. 3911). For 1972-73, the corresponding figures were
10 of 15 black assistant principals (PI. L. Ex. 450A, L. Tr. 3911).
32
pals, were still at schools more than 70% black (PI. L. Ex.
409A, L. Tr. 3910; see A. 317-18.)
b. Application of the “neighborhood school” policy.
Throughout the post-1954 period of expansion within the
Columbus school system, the school board claimed to be
proceeding in its school construction and attendance zoning
actions on the basis of the “neighborhood school” principle.
According to this thesis, school authorities were guided by
a set of racially neutral principles and any segregation
among the student bodies of the public schools resulted
from patterns of housing segregation over which the school
authorities had no control and to which they did not con
tribute (Pet. App. 49-50). This claim raised both a factual
and a legal issue. The factual question is whether the post-
Brown actions of the Columbus school board are consistent
with any meaningful elucidation of the “neighborhood
school” principle. The legal issue is whether a school board
which is aware of patterns of severe residential segregation
resulting from racial discrimination may constitutionally
choose to superimpose upon this grid of known residential
segregation a “neighborhood school” policy of pupil assign
ment with predictable school segregation results. Relevant
to this legal issue are the matters of the school authorities’
knowledge about residential patterns and the alternative
courses of conduct realistically open to them. Evidence on
all of these subjects appears in the record of these proceed
ings.
As it has been formulated throughout this case, the
“neighborhood school” principle involves the location of
facilities and establishment of attendance areas such that
most pupils may walk to school (A. 227-28). At least since
1950, Columbus has used a specific set of desirable maxi
mum “walking distances” as a guide: usually % mile for
elementary school students, 1% miles for junior high school
33
students, and 2 miles for senior high school students (see
PI. L. Ex. 59, L. Tr. 3882, at 73; Pl. L. Ex. 60, L. Tr. 3882,
at 61; PL Ex. 61, L. Tr. 3882, at 55; PI. L. Ex. 62, L. Tr.
3882, at 56; PI. L. Ex. 63, L. Tr. 3882, at 76; PI. L. Ex. 64,
L. Tr. 3882, at 62). However, as articulated in the studies
done jointly with Ohio State University educational con
sultants commissioned by the school system to help docu
ment school construction needs to be financed by bond is
sues (A. 550, 559), the “neighborhood school” concept is not
inflexible. The studies consistently noted that schools could
successfully serve wider areas where transportation was
available (PI. L. Ex. 60, L. Tr. 3882, at 61; PI. L. Ex. 61,
L. Tr. 3882, at 55; PI. L. Ex. 62, L. Tr. 3882, at 56; PI. L.
Ex. 63, L. Tr. 3882, at 76; PI. L. Ex. 64, L. Tr. 3882, at 62).
They also recommended that transportation of pupils be
continued in appropriate instances. E.g., PI. L. Ex. 59, L.
Tr. 3882, at 87 [American Addition; Eastgate],
The “neighborhood school” concept as it is now practiced
does not have a long history in Columbus.38 * * The 1938
school zones are considerably larger than most attendance
areas today (compare. Figs. 12-14, PI. L. Ex. 58, L. Tr. 3882,
at 105, 107, 111 with PI. L. Exs. 278, 299, 320, L. Tr. 3898).
Yet in 1950 the authors of the Ohio State study commented
that:
Except in areas of recent residential expansion, Co
lumbus schools are in general well located with respect
to distances which pupils must travel in order to at
tend them.
38 In their Brief, Petitioners claim that the “neighborhood school
policy” as now practiced in Columbus “has consistently [been]
adhered to . . . since before 1900” (Pet. Br. 17 at n.7). However,
Petitioners cite no record evidence to support this statement. See
text infra.
34
(PI. L. Ex. 59, L. Tr. 3882, at 72.) Pupils have always been
transported to school within Columbus and in the sur
rounding township school systems which operated facilities
later annexed by the city (A. 233-34).39 Former Superin
tendent of schools Novice Fawcett testified simply that the
“neighborhood school” philosophy was adopted in 1950
because, he assumed, that was the general direction in
which the system was headed (A. 556).
The notion of building walk-in schools, together with the
contemporaneous adoption of maximum school size goals
(see PL L. Ex. 62, L. Tr. 3882, at 56) had profound conse
quences for the racial composition of newly constructed
facilities in Columbus. Smaller schools drawing primarily
students who lived within walking distance were more
likely to contain uniracial populations. Since blacks in
particular were subject to widespread discrimination which
sharply curtailed their freedom to select places of residence
outside informally designated areas of Columbus (see A.
244-46; L. Tr. 1484, 1513, 2145-56; cf. L. Tr. 2463-65, 1794-
1800), even a scrupulously neutral application of these
criteria40 would predictably incorporate residential segre
gation into school zoning.41
Successive Columbus Boards of Education chose to ad
here to the “neighborhood school” philosophy as a par-
39 Note, for example, the size of the zones for the Clarfield and
Courtright elementary schools annexed from Marion-Pranklin
Township, PI. L. Exs. 261, 262, L. Tr. 3898. Obviously, most of
the students attending these facilities were transported.
40 As we demonstrate below, this is not what occurred in Colum
bus. The so-called “neighborhood school’” philosophy as practiced
in Columbus was so fluid, so subject to exception and manipulation,
as to fail to exist altogether.
41 Cf. Brewer v. School Bd. of Norfolk, 397 F.2d 37 (4th Cir.
1968) ; Sloan v. Tenth School T)ist. of Wilson County, 433 F.2d
587 (6th Cir. 1970).
35
adigm of how the school system should function even
though made well aware of the segregative consequences.
For example, in the early 1960’s, a former Vanguard
League official communicated on several occasions with
the Board president to point out that schools planned for
new subdivisions would be all-white schools unless de
velopers made an affirmative commitment to open housing
(A. 197-202). In 1964, the opening of Monroe Junior High
as a 100% black school in the east-central part of the city
drew sharp protests over segregation (A. 602-03). An
NAACP official who became President of the Gladstone
Elementary PTA recounted his vain efforts to get the
school board to construct a facility of adequate size in a
location where it could be integrated ( A. 212-14). Many
local organizations called the attention of the school board
to increasing pupil segregation in the school system, in
cluding the NAACP (A. 203-12; L. Tr. 937-50), the Urban
League (L. Tr. 2190-2206), the League of Women Voters
(L. Tr. 1995-2000, 2010-13), and the Columbus Area Civil
Rights Council (L. Tr. 238-40). In 1968, an independent
Ohio State University study requested by the Board (PL
L. Ex. 194, L. Tr. 3885, at 2-3) reported:
Foremost among th[e] problems [in Columbus] is
de facto [sic] racial and socioeconomic segregation in
the schools. Twenty-five percent of Columbus school
enrollment is Negro. However, in 38 schools Negroes
constitute more than 50 per cent of the student body,
in 30 schools more than 75 percent, and in 15 schools
more than 95 per cent. . . .
(Id. at 21; see A. 606-07). The Cunningham Report, as
the document became known, recommended a policy of
“managed integration,” “ at least until genuine open hous
ing is achieved in the metropolitan area” (PI. L. Ex. 194,
L. Tr. 3885, at 90). This report followed close on the heels
36
of a detailed set of recommendations for integration pre
sented by the NAACP in 1966 to the “ In ter cultural Coun
cil,” an advisory body created by the Board of Education
(A. 208-09; Pet. App. 16). The recommendations called
for contiguous pairings and reshaping of attendance zones
(A. 209-12) without long-distance transportation of pupils.
Indeed, the rebuttal to these recommendations which was
prepared by the school system (PI. L. Ex. 477, L. Tr. 3917)
included a series of 13 maps dramatically illustrating ex
amples of contiguous and virtually contiguous attendance
areas for schools of substantially differing racial makeup
in Columbus.
None of these recommendations was acted upon (A.
203-08; L. Tr. 2203-06, 2220, 2226, 2255). Although the
board in 1967 adopted a policy of taking race into account
when siting new facilities (PI. L. Ex. 53, L. Tr. 3882), it
continued to adhere to its segregative version of the
“neighborhood school” plan. The new policy also was not
applied to the zoning or rezoning of existing facilities (A.
359-60, 606). In 1970 and 1971, both a former Vanguard
League official and the Housing Opportunity Center of
Columbus wrote on several occasions to the board pres
ident and to the school board requesting that, if the system
was to continue constructing “neighborhood schools” in
newly developing subdivisions, it take steps to insure that
blacks would have the opportunity to reside in those areas.
In response to one such letter, it was suggested that the
school board sought to minimize costs by purchasing sites
before development was completed, and that other matters
should be the responsibility of the city and not the school
district (A. 197-202, 249-51). The following year, a ma
jority of the school board voted, along racial lines, not
to establish a site advisory committee which would advise
the school board of the “ probable composition of neigh-
37
borhoods” and “the probable effects of locating a school
on a particular site,” as well as seek open housing com
mitments from developers and lenders with respect to new
housing in areas which might require additional school
construction (A. 359-60, 646-48; PI. L. Ex. 44, L. Tr. 3881).
There can be little argument, then, that the Columbus
school board has steadfastly maintained a verbal commit
ment to the so-called “neighborhood school” approach to
pupil assignment even though it was aware that this would
produce a high degree of racial segregation; and even
though it was aware of alternative assignment mechanisms
which had been endorsed by leading educators. The dis
trict court considered this fact as one element of the ease:
. . . Substantial adherence to the neighborhood school
concept with full knowledge of the predictable effects
of such adherence upon racial imbalance in a school
system is one factor among many others which may
be considered by a court in determining whether an
inference of segregative intent should be drawn. (Pet.
App. 49.)
c. Deviation from the “neighborhood school” system. In
this section we describe, generically, important operational
techniques employed by the Columbus school system in the
years after Brown which were departures from the prin
ciple of “neighborhood schools.” In numerous instances
the result was to create or exacerbate school segregation
— and in many o f these cases, no educationally grounded
rationale for the assignment device could be articulated.
In those instances, the only basis on which use of the pupil
assignment scheme could be explained was a racial one (as
plaintiffs’ expert witness Dr. Gordon Foster testified; e.g.,
A. 474-76, 483, 505).
38
Several examples of these administrative practices were
extensively described in the district judge’s opinion (Pet.
App. 26-42). The court did not limit its findings only to
these specified examples, however (see Pet. App. 94).
Rather, the district judge’s consideration of the entire rec
ord was informed by the strong evidence of discriminatory
intent revealed by the examples set forth in the opinion as
well as from other actions about which proof was pre
sented :
. . . The Columbus Board even in very recent times,
has approved optional attendance zones, discontiguous
attendance areas and boundary changes which have
maintained and enhanced racial imbalance in the Co
lumbus Public Schools. The Board, even in very recent
times and after promising to do otherwise, has abjured
workable suggestions for improving the racial balance
of city schools.
Viewed in the context of segregative optional atten
dance zones, segregative faculty and administrative
hiring and assignments, and the other such actions and
decisions of the Columbus Board of Education in recent
and remote history, it is fair and reasonable to draw
an inference of segregative intent from the Board’s
actions and omissions discussed in this opinion. (Pet.
App. 61.) (emphasis added.)
We describe in detail in the next section how the adminis
trative decisions of the board and staff created, aggravated
or perpetuated racial segregation in the public schools.
Here we briefly describe four major devices, other than
school construction and faculty assignments, utilized for
this purpose.
Optional attendance areas. According to the “neighbor
hood school” principle, facilities are located within walking
39
distance of the residences of pupils who are assigned to
them by drawing attendance zones. The board’s witnesses
contended that this permits efficient loading of buildings,
avoids the cost of pupil transportation, and permits close
identification between students, parents (the “ school com
munity” ), and the school. (See A. 228, 628; PI. L. Ex. 477,
L. Tr. 3917.) To maximize optimal use of each facility,
boundaries should remain flexible enough to be adjusted in
response to changes in residential density (PI. L. Ex. 59, L.
Tr. 3882, at 40 [1950 Ohio State facilities study]).
In Columbus, an exception to these principles was made
when optional zones were created. Students living in such
zones could choose to attend any of two or more facilities to
which the option applied. Optional areas therefore created
greater uncertainty about pupil enrollment prior to the
actual start of classes than was the ease where fixed zones
were established.42 They could also weaken the desired
identification between home and school. And where the
choice offered was between schools of substantially differ
ing racial composition, these devices could serve as potent
means of segregating school enrollments.48
Optional zones proliferated in the Columbus system dur
ing the post -Brown era. Former Superintendent Fawcett
recalled them mostly as a means of providing flexibility to
deal with overcrowding in “neighborhood schools,” 44 * and
did not think they had a racial dimension (A. 576). How
ever, the school system administrator who dealt with zon-
42 Cf. Moses v. Washington Parish School Bd., 276 F.Supp. 834
(B.D. La. 1967).
43 See cases cited in note 33, supra; cf. Goss v. Board of Educ.
of Knoxville, 373 U.S. 683 (1963).
44 This was not the sort of flexibility called for by the 1950 Ohio
State facilities study, which had recommended rezoning (PI. L.
Ex. 59, L. Tr. 3882, at 40).-
40
ing on a day-to-day basis found them useful only as tem
porary devices when new schools were being opened, to
preserve continuity for students; they were a “ gamble” if
used to relieve overcrowding (A. 634-35). He eliminated
most optional attendance areas during his tenure because
they served no purpose (A. 635-36) and found it “very
difficult . . . to grasp the reasons” why his predecessors
had created the optional zones in the first place (A. 636).
These zones existed between long-established schools, or
were maintained long past the transition period when new
schools were opened— and many seemed to have no purpose
other than to permit students to choose between white and
black schools. The district court’s opinion describes the
“ Near-Bexley,” Highland-West Mound and Highland-West
Broad options at length. Evidence of optional zones having
substantial racial effect was also introduced with respect
to Franklin and Roosevelt Junior High Schools, the “ Down
town Option” (see pp. 15-16 supra), Fair and Pilgrim Ele
mentary Schools, Pilgrim, Eastwood and Eastgate Elemen
tary Schools, Main and Livingston Elementary Schools,
Linmoor and Everett Junior High Schools, Central and
North High Schools, and the East and Linden McKinley
High Schools. See text infra.
Discontiguous attendance areas. This term refers to geo
graphic portions of a school’s attendance zone which are
unconnected to other portions of the zone and which may
be a considerable distance from the school facility to which
they are assigned. In most instances pupils living in dis
contiguous attendance areas require transportation in order
to reach their classes.45 Hence the maintenance of dis- 46
46 Optional attendance zones, described in the preceding para
graphs, may be contiguous to the schools they serve, as in the
case of the optional zones between Highland, West Broad and
West Mound Elementary Schools discussed in the district court’s
opinion, see Pet. App. 85, or they may be discontiguous, as in the
41
contiguous areas is inconsistent with the “neighborhood
school” concept. While it may be necessary as a tempo
rary measure (for example, when rapid population growth
overcrowds all school facilities and construction of addi
tional facilities cannot be completed in a timely fashion),
in other circumstances it may serve as a tool to maintain
segregated schools. When space is in fact available at
nearby schools which are predominantly of one race but
students of another race in a discontiguous zone are bused
further to schools in which the enrollment is predominantly
of their own race, courts have drawn an inference of segre
gative intent.46
The district court’s opinion uses the Moler and Heiman-
dale-Fornof discontiguous zones as examples of the Co
lumbus system’s use of these devices (Pet. App. 33-35). In
addition, there was uncontradicted evidence of discontig
uous assignments of American Addition and Arlington
Park junior high school students; and of discontiguous
assignments of elementary school pupils to the Barnett
School in the 1960’s, and to the Linden School in the late
1950’s and early 1960’s. See note 15 supra and text infra.
Segregative relocation of classes in other schools. Closely
related to discontiguous zoning is the practice of maintain
ing formal contiguous zone lines for an overcrowded facil
ity but transporting one or more classes (along with their
teachers) to another school after the pupils have assembled * 46
case of the “Near-Bexley” options, see Pet. App. 82-84. Usually,
when the discontiguous area is an optional zone, the pupil is re
sponsible for providing transportation. On the other hand, the
Columbus school system furnished transportation in the case of
non-optional “discontiguous areas.”
46 “ Satellite” or “ island” zoning, which utilize discontiguous as
signment areas, are common desegregative techniques. See, e.g.,
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 8-9,
27-29 (1971),
42
at a central pickup point (usually the “neighborhood”
school). During the post-Brown era when the student popu
lation of the district was rapidly expanding, Columbus
made extensive use of this technique (see A. 401-02, 612).47
Often, classes from a school predominantly of one race
were transported past schools predominantly of the other
race to “ same-race” facilities (L. Tr. 3601-13). In other
instances, students were sent to schools of differing racial
composition (L. Tr. 5339-78); however, classes from the
separate schools were maintained intact rather than being
integrated (L. Tr. 3612-21; see also, A. 701-14). While the
trial court’s opinion did not focus on the segregative conse
quences of the district’s intact class transportation, neither
did it exclude evidence of such practices from its considera
tion.
Rental facilities. Another way in which overcrowding can
be accommodated is by the leasing of non-school system
facilities. When such facilities are available at locations
close to the overcrowded schools, they make assignments
without additional transportation possible. However, if
space is available elsewhere in the school system but the
rental device is still employed, it may result in avoidable
segregation of pupils. Taken together, a system’s choices
about how to deal with overcrowding through a combina
tion of intact class transportation and renting can have
very significant consequences for pupil segregation or inte
gration. In the 1970’s, Columbus used rented facilities
segregatively when integrative reassignments would have
been possible, especially if other, same-race intact class
arrangements had been modified. See text infra. Testi-
,47 In 1950, the Ohio State facilities study had recommended
shifting the boundaries of adjacent schools in order to deal with
such situations, rather than intact class relocation. See PI L Ex
59, L. Tr. 3882, at 40.
43
mony about the segregative use of rental facilities was
received and reviewed by the district court in reaching its
conclusions as to systemwide intent and liability.48
Construction and boundary establishment. Even the most
elaborate “neighborhood school” theory leaves a great deal
of discretion to school officials with respect to the construc
tion of facilities and the setting of boundaries for atten
dance areas.49 The recommended walking distances are
merely general guides, and transportation is often re
quired. (A. 229-31, 361-62). It is the establishment of the
zone line, in fact, which defines the “neighborhood” (A.
323). Although obstacles such as highways and railroad
tracks are considered (A. 627), even at the elementary
school level in Columbus zones have always crossed such
barriers.50 As population density changes, established
“neighborhood school” zones may be subdivided, or capac
ity expanded through an addition or separate primary
grade center which may “ contain” students of one racial
group at the school (see A. 319-20). Schools may be con
structed at the request of private developers (A. 401; see
also, A. 601; L. Tr. 1485) or sites selected even before
development starts (A. 562, 601-02). The choices which are
made among all of these factors each time a school is to be
48 See also note 36 supra.
. 49 That discretion may, of course, be exercised to accomplish
either segregation (as in the matter of gerrymandering the Fair
Elementary boundary in 1937, see pp. 18-19 supra), or integra
tion (as in the case of the boundaries for Southmoor Jr. High
School established in 1968, see p. 71 infra).
50 For example, the 1937 Fair and Douglas Elementary zones
crossed Broad Street, see Fig. 14, PI. L. Ex. 58, L. Tr. 3882, at
111; the 1957-58 elementary school zones for Fornof and Clarfield
crossed railroad tracks along which they were subsequently aligned
(compare PI. L. Exs. 251, 261, 266, L. Tr. 3897, 3898) ; since 1970,
the Barrett Junior High Zone has crossed the Scioto River (see
PI. L. Exs. 252, 294, 299, L. Tr. 3897, 3898).
44
built, or a zone line established or modified, may have much
to do with the racial distribution of pupils among a dis
trict’s school buildings.61
The district court’s opinion recognized the critical im
portance of school construction and zoning (Pet. App.
20-25). The evidence in the record on these subjects goes
far beyond the two examples selected by the court for dis
cussion in the body of its opinion. See text infra.
61 The school board’s principal defense during the liability trial
was that it had constructed facilities at locations recommended
in the periodic facilities needs surveys commissioned by the board
from Ohio State University (e.g., A. 571). The district court did
not find this explanation persuasive. The evidence indicates that
the principal function of the studies was to document anticipated
population growth so that voters in bond campaigns could be as
sured that the school board was not proposing unnecessary school
building (e.g., A. 550, 559). The system used the University’s
technical expertise, for example, in defending a reduction in the
rated pupil capacities of its secondary grade level facilities based
on a system developed by an Ohio State faculty member (A. 582-
83). However, the Ohio State studies were limited in scope and
they were hardly the independent product of outside researchers.
The basic methodology was for school system administrators to
have the major responsibility. They would gather data and pre
pare a draft report, subject to general supervision from University
representatives (PI. L. Ex. 59, L. Tr. 3882, at iii; P. L. Ex 61
L. Tr. 3882, at iii; PI. L. Ex. 62, L. Tr. 3882, at iii ; PI. L. Ex. 63’
L. Tr. 3882, at iii; PL L. Ex. 64, L. Tr. 3882, at iii. Compare PI. L.
k- Tr. 3885,̂ at 2-3). Basic constraints such as desirable
school size and walking distances were established by the school
system subject to Ohio State’s agreement that they were not ed
ucationally unsound (A. 597).
While the reports included recommendations for construction on
specific sites, they did not purport to suggest how pupils should be
assigned to those facilities but only to document the need for addi
tional capacity in certain areas of the district. Moreover, the
studies did not include any consideration of means either to de
segregate the schools or to avoid reinforcing the existing segrega
tion (A. 577, 599). The record is clear that Ohio State could have
provided valuable assistance toward dismantling the segregated
system had it been asked (see PI. L. Ex. 194, L. Tr. 3885)° The
Columbus system studiously avoided asking for this assistance.
45
d. The 1950’s. In the 1950’s, the growth of the black
population and its territorial expansion outside the area
north of Broad and east of High Street presented the
Columbus school system with opportunities to afford a
desegregated education. Instead, the same techniques used
prior to Brown to extend segregation (see pp. 15-21 supra)
were employed anew.
For example, although the “Downtown Option” area
still included many white residences (A. 479-80), the op
tion permitting white students to avoid attending pre
dominantly black schools east of High Street remained in
effect until 1975, with only minor modifications (A. 480-84).
Additional optional zones were created in areas of racial
transition. In 1951, the gerrymandered Fair Elementary
zone north of Broad Street was modified to create an
optional area between Fair and Pilgrim (A. 501). When
the Eastwood School was reopened in 1954, the boundary
for Fair was reestablished at Broad Street (see Fig. 2,
PI. L. Ex. 61, L. Tr. 3882, at 17) and the option changed
to one between Pilgrim and Eastwood; in 1955, following
construction of the permanent Eastgate facility, it was
altered to allow students to select any of the three (see
PL L. Exs. 261, 250, L. Tr. 3897, 3898), and in 1960 it was
again limited, this time to Pilgrim and Eastgate (A. 501-
03).62 Plaintiffs’ expert witness Dr. Gordon Foster could
discover no capacity problem which these optional zones
could have been designed to ease and concluded that the
purpose was to facilitate white students’ avoidance of
Pilgrim as the black population moved eastward (A. 503).
62 Interestingly, the first Ohio State facilities study had recom
mended retention of portables at Eastgate because the site was
isolated on the north and west by railroad tracks (PI. L. Ex. 58,
L. Tr. 3882, at 116). The optional zones established in the mid-
1950’s crossed the traeks.
46
The black population was also growing in the area south
of Broad Street (compare PI. L. Exs. 250, 251, L. Tr. 3897).
In 1954, the board established an optional area between
Main and Livingston Elementary Schools which was re
tained for eight years although neither school had more
severe capacity problems than the other; in 1964, Main
was 77% non-white but Livingston only 27% non-white
(A. 485-87, 489). In 1955, an optional zone was established
between the Franklin and Roosevelt Junior High Schools
(see PI. L. Ex. 281, L. Tr. 3898). This optional area had
previously been a part of the Franklin zone and was re
turned to Franklin in 1961; during the period of its exis
tence, Franklin was under capacity and Roosevelt was first
overcrowded and subsequently less underutilized than
Franklin. The optional zone was in a racially changing
area and it permitted white students formerly assigned to
Franklin to attend Roosevelt during the residential transi
tion. In 1964, Roosevelt was 40% non-white; Franklin was
86% non-white. (A. 458-64).
Also in 1955, the Franklin Junior High zone was mod
ified in the area north of Broad Street. The Shepard Ele
mentary zone was reassigned to newly opened Eastmoor
Junior High School while the Eastgate elementary area
remained assigned to Franklin.63 (See PL L. Exs. 261, 281,
L. Tr. 3898.) The 1960 census shows blacks to have been
moving much more rapidly into the Eastgate area than into
Shepard (PI. L. Ex. 251, L. Tr. 3897). In 1964, Franklin
was 86% non-white and Eastmoor 30% non-white (A. 783,
L. Tr. 3909).
Four years later, the board created another set of op
tional zones (the “Near-Bexley” option) in this part of
the city. The area of Columbus to the east of Alum Creek,
68 Both had been assigned to Pilgrim Junior High prior to 1932
See pp. 17-18 supra.
47
formerly a part of the Fair Elementary, Franklin Junior
High and East Senior High zones, was made optional for
those schools or Fairmoor Elementary and Eastmoor
Junior-Senior High (compare PI. L. Exs. 261, 281, 302, L.
Tr. 3898, with PI. L. Exs. 263, 283, 304, L. Tr. 3898; see
maps at Pet. App. 82-84).64 The 1960 and 1970 census
maps, based on block data, show the optional zone to be
virtually all-white, in contrast to the rest of the Fair Ele
mentary zone, for example. (PI. L. Exs. 251, 252 , L. Tr.
3897). Dr. Foster concluded that the options, which were
still available at the time of trial, were racial in nature.
(A. 449-58; see also, Pet. App. 26-29).
In the western part of the school district, the board also
took steps to retain segregation. As the concentration of
blacks in the “Hilltop” area west of the Columbus State
School expanded (compare PI. L. Exs. 250, 251, L, Tr.
3897), major changes were made in the boundaries of the
school which previously served the area, Highland Ele
mentary. (See map at Pet. App. 85.) First, in 1955 the
portion of the zone which had extended north of Broad
Street west of the State Hospital for nearly twenty years
(see Fig. 14, PI. L. Ex. 59, L. Tr. 3882, at 111) was made
optional between the Highland and West Broad schools
until 1957-58, when it was rezoned completely to West
Broad. The receiving school was far more crowded than
Highland, so the optional zone and boundary shift did not
solve any capacity problems. Second, the board in 1955
established another optional zone, this one between High
land and West Mound elementary schools. It lasted until
1961-62 when it was permanently placed in the West Mound
attendance area. While it did relieve slight overcrowding
64 Between 1961 and 1963 the option included Johnson Park
Junior High School in addition to Franklin (A. 454).
48
in Highland in some years, it also involved a predomi
nantly white portion of Highland’s attendance area and a
predominantly white receiving school, West Mound. In
1964, Highland was 75% black, West Broad 100% white,
and West Mound 85% white. There were available, feasible
alternatives which would not have produced the same, pre
dictable, segregative result (A. 469-78; see also, Pet. App.
29-33.) Highland remained significantly different from ad
jacent schools in racial composition at the time of trial
(see A. 775-82, L. Tr. 3909).
Across the river in the southern portion of the school
district, a 1957 annexation brought the Heimandale and
Fornof elementary schools into the system (PI. L. Ex. 62,
L. Tr. 3882, at 48). Their attendance areas included, at
the time of annexation, a discontiguous zone within Hei
mandale but assigned to Fornof (A. 504; see PI. L. Ex.
261, L. Tr. 3898). The census maps for 1960 indicated that
the discontiguous zone coincided with blocks on which
whites lived in greater proportions than in most of the
rest of the Heimandale area (see PI. L. Exs. 261, 251, L.
Tr. 3897, 3898). Columbus kept the discontiguous area in
effect until 1963; in 1964, when enrollment statistics are
first available, Heimandale was 40% black and Fornof less
than 1% black. (A. 504-06; see also, Pet. App. 34-35).
To the northeast of the central business district, move
ment of the black population into areas formerly occupied
by whites, together with annexation of predominantly
white suburban areas, also resulted in new school con
struction, rezoning, and segregation. (A map of this part
of the school district showing approximate locations of
schools and streets appears on the opposite page; the de
monstrative exhibits—maps and overlays— to which refer
ence is made have been lodged with the Clerk and are
available for the Court’s reference.)
^ champion)
50
In 1957, the Arlington Park area was annexed to the
Columbus school district. The system had previously pur
chased a site in the area and opened a new elementary
facility in 1957. It enrolled no black students in 1964, when
data are first available (A. 776, L. Tr. 3909).66
Before the annexation, territory within the Columbus
district just west of Arlington Park, as far south as Wind
sor Avenue, was zoned to Linden Elementary, less than 1%
black in 1966, even though it was closer to the Eleventh
Avenue school, 79% black in 1964, or to the Leonard
School, 94% black in 1964 (id,). (See Fig. 2, PI. L. Ex. 61.
L. Tr. 3882, at 17.) The area just to the south, taking in
the American Addition, was sent to Leonard. After the
annexation, the Arlington Park School was zoned to take a
portion, but not all, of what had formerly been the southern
end of the Linden zone (see PI. L. Ex. 261, L. Tr. 3898).
The remainder, bounded by Joyce Street on the west, Wind
sor Avenue on the south, Woodland Avenue on the east,
and 23rd Avenue on the north—again, just north of the
American Addition—was assigned to Linden as a discontig
uous area (see Pl. L. Exs. 261, 251, L. Tr. 3897, 3898).
No white students living in this area were sent to either
Eleventh Avenue or Leonard Elementary Schools even
though capacity was available and Arlington Park was
overcrowded.66 56 * 58
56 Unfortunately, because of a typesetting error, PI. L. Exs.
383 and 385, L. Tr. 3909, as they were reprinted at A. 775-801, did
not distinguish between years for which no statistics were available
and years in which a school had either no black students or no black
teachers. Both blank spaces and horizontal slashes were set. as
horizontal lines. Counsel have deleted the extra lines from the
Court’s copies and filed a copy of the original exhibits with the
Clerk. Remaining lines on these pages indicate “zero” values.
58 The following table, and others appearing in the footnotes in
this section, are based on the. grades 1-6 capacity and enrollment
51
This discontiguous zoning ended in 1959-60 with the
opening o f two new schools, Duxberry Park and Windsor.
However, zone lines for these schools were drawn in a way
which maintained racial separateness. The 1960 census
indicates the main growth of black residential areas in the
previous decade to have been between Cleveland Avenue,
on the west, and the Penn Central railroad tracks, on the
east (compare PL L. Exs. 250, 251. L. Tr. 3897). A small
zone for Windsor was carved out of the Eleventh Avenue
area westward from the railroad tracks; it was subse
quently enlarged slightly and extended north to 17th
Avenue (PI. L. Exs. 263, 284A, 264, L. Tr. 3898), then a
racial dividing line (A. 246). In 1964, Windsor was 91%
black (A. 782, L. Tr. 3909). The Duxberry Park school
zone took in the 1957-58 Linden discontiguous area, the
territory adjacent to the Arlington Park annexed area, and
a small plot north of 17th Avenue previously zoned to
figures in the Ohio State University facilities needs studies. In
several instances, Petitioners make claims about the utilization of
school facilities which they attempt to support by referring to
the enrollments listed in PI. L. Exs. 1 and 2, L. Tr. 3881, and the
capacity figures in the Ohio State studies {e.g., Pet. Br. 33). This
comparison is improper for elementary schools since the enroll
ments in PI. L. Exs. 1 and 2 include kindergarten figures but the
Ohio State capacities are based on classrooms available for grades
1-6. See, e.g., P. L. Ex. 61, L. Tr. 3882, at 49, 50. See also, e.g.,
note 83 infra.
School 1957-58 Enrollment* * ** 1956 Capac■
Eleventh Avenue 776 792
Leonard 250 264
Linden 852 924
Arlington Park 402 384*
* PI. L. Ex. 62, L. Tr. 3882, at 25, 26
** PL L. Ex. 61, L. Tr. 3882, at 49, 50
Although Linden had adequate space in 1957 to relieve overcrowd
ing at Arlington Park, the following year it was well over capacity
with an enrollment of 1,026, while Eleventh (803) and Leonard
(261) were at far more comfortable levels.
52
Eleventh (Pl. L. Exs. 261, 263, L. Tr. 3898). In 1964, Dux-
berry Park was 30% black (A. 777, L. Tr. 3909).
At the junior high level, additional capacity was pro
vided in the northeast when Linmoor Junior High opened
in 1957. Although Linmoor was phased in one grade at a
time, and Linden-McKinley’s junior high school capacity
was subsequently replaced in the 1960’s,87 * the school’s open
ing was the occasion for a series of zone alterations which
had marked and long-term racial consequences. First, dur
ing the period when both Linmoor and Linden-McKinley
were operating as junior high schools, a boundary was fixed
such that Linden-McKinley served areas north of Hudson
Avenue and east of the railroad tracks, including the Dux-
berry Park elementary zone (see PI. L. Exs. 263, 283, L. Tr.
3898). The Linden-McKinley building, however, was ac
tually located within the Linmoor zone (A. 494). Linmoor
included the Cleveland Avenue corridor of increasing black
concentration (id .):88 Second, there appears to have been
no reason why Linden-McKinley could not have been
phased out as a junior high school upon the completion
of Linmoor. Linmoor could then have served a zone which
extended east beyond the railroad tracks and north beyond
Hudson Street (as Linden-McKinley had previously done
(see Fig. 3, PI. L. Ex. 61, L. Tr. 3882, at 18)).89
87 Linden-McKinley became a senior high school only in 1964.
Medina and McGuffey junior highs were opened to the north of
Linden-McKinley and Linmoor, whose northern boundary was then
maintained along Hudson Street— the racial demarcation line above
17th Avenue. See pp. 77-80 infra.
68 The American Addition still sent its junior high school stu
dents to Champion, although it was located mueh closer to Linden-
McKinley (id.).
89 As the following table indicates, there was sufficient capacity
without Linden-McKinley at Linmoor and adjacent junior high
schools prior to the opening of Medina in 1960. Only in 1959-60
53
The immediate result of maintaining junior high grades at
Linden-McKinley was to “underutilize” Linmoor and make
possible the addition to its zone, in the guise of an optional
attendance area, of territory to the south which had not
been a part of the Linden-McKinley zone before Linmoor
was constructed. This removed a predominantly black area
from another junior high (Everett) and laid the ground
work for its inclusion in newly constructed, all-black
Monroe Junior High School in 1964. The patterns thus
established persisted at the time o f trial.60
Third, a year after the opening of Linmoor, an optional
attendance area between Everett and Linmoor was estab
lished (see PI. L. Ex. 282, L. Tr. 3882). Formerly the
optional area had been a part o f the Everett zone in 1956-
57 and, for the seventh grade, a part of the Linmoor zone
in 1957-58 (A. 491-92). The optional area was predomi
nantly black according to the I960 census (A. 493). It was
not needed to relieve overcrowding at Everett, which was
well under capacity (see note 59 supra). Dr. Foster con
cluded that its function was to allow the remaining whites
living in the area to avoid a junior high school assignment
would there have been any overcapacity—and it would then have
been very slight.
Junior High Enrollment**
School 1959 Capacity* 1956-7 1957-8 1958-9 1959-60
Linden-McKinley — 1,164 995 825 690
Linmoor 1 ,0 0 0 — 270 661 1 ,0 2 1
Everett 1,300 1,326 1.077 968 878
Indianola 950 885 854 793 824
Champion 900 735 713 684 675
Clinton 900 601 667 771 991
Total 5,050 3,711 4,576 4,702 5,079
* PL L. Ex. 62, L. Tr. 3882, at 52-53.
** PI. L. Ex. 62, L. Tr. 3882, at 25; PI. L. Ex. 64, L. Tr. 3882, at 31.
60 In 1975-76, Medina was 24% black, Linmoor 96% black, Mon
roe 99% black, and Everett 26% black (A. 783, L. Tr. 3909).
54
with the substantial numbers of black students attending
Linmoor (A. 493). The optional zone was expanded in
1959 (id.) and continued until the opening of Monroe Junior
High School in 1964 (see pp. 79-80 infra).
Also related to the Linmoor opening was the treatment
of Arlington Park junior high school students. (A. 494-97.)
When the area was first annexed, junior high school stu
dents were assigned to Linden-McKinley in a contiguous
zone (see PI. L. Ex. 261, L. Tr. 3898). As the number of
Linden-McKinley senior high students increased, capacity
problems seemed imminent. In 1959-60, Arlington Park
junior high students61 were assigned, in a discontiguous
zone, to Linmoor. Since Linmoor’s attendance area also
included the Cleveland Avenue corridor of increasing black
concentration62 this assignment would have been integra
tive.63 However, just as the Everett-to-Linmoor rezoning
was made optional after a year (permitting whites to avoid
Linmoor), the Arlington Park assignment was revoked in
1960. At that time, another new junior high school (Me
dina) was opened north of Hudson Avenue, taking a por
tion o f the Clinton and Linden-McKinley zones (see PI. L.
61 The elementary school serving this area was virtually all-white
in 1964 (A. 776, L. Tr. 3909).
62 It also included predominantly black areas at its southern ex
tremity which had formerly been assigned to Everett Junior High,
see p. 53 supra.
63 In 1959-60 Linmoor was slightly over its rated capacity (see
note 59 supra). The following year, even though Arlington Park
junior high pupils were removed from the school, see text infra,
Linmoor was still slightly over capacity with an enrollment of
1,011 (PL L. Ex. 64, L. Tr. 3882, at 31). However, as we have
previously noted, Linmoor was filled during these years by the
inclusion of areas formerly in the Everett zone. Thus, not only
did this shaping of attendance areas reduce integration at Everett
and lead eventually to the opening of a new all-black junior high
school at Monroe in 1964; it also provided a justification for main
taining the assignment of white Arlington Park pupils to white
junior high schools (see text infra).
55
Ex. 284, L. Tr. 3898). Arlington Park junior high students
were reassigned to Linden-McKinley in 1960-61 and 1961-
62. The following year, the Medina zone was pushed even
further northward by the conversion of the McGuffey
school into a junior high (see PI. L. Ex. 286, L. Tr. 3898).
Although McGuffey (southern boundary at Hudson Avenue
except for the Duxberry Park zone, see PL L. Exs. 265, 286,
L. Tr. 3898), was closer, as was Linmoor, Arlington Park
students were now assigned again as a discontiguous area
— this time to Medina (id.). They were still so assigned at
the time of trial (PI. L. Ex. 299, L. Tr. 3898). In 1964,
Linmoor, was 60% black and Everett was 35% black;
McGuffey was 7% black in 1965; Medina was less than 1%
black in 1966. By 1975, Linmoor was 96% black, Everett
26% black, and McGuffey 44% black; Medina was 24%
black (A. 783, L. Tr. 3909). The defendants’ only explana
tion for the assignments of Arlington Park junior high
youngsters was that “ it was decided” to handle them in the
fashion described (A. 623-24).
Finally, during the 1950’s the Columbus school system
continued practices which perpetuated the racial isolation
of students in the pre-1954-segregated area east of High
and North of Broad Street, in addition to the Fair-Pilgrim,
Fair-Eastgate-Eastwood, and “downtown” options. When
black schools became overcrowded, their pupils were trans
ported to other black schools.64 A school construction pro-
64 For example, in 1955-56, all sixth graders in the Garfield and
Felton zones were sent to Pilgrim, while two classes from Bast
Columbus were sent to Broadleigh (PI. L. Ex. 61, L. Tr. 3882, at
25 nn. 15, 2 1 ). White elementary schools with available space for
the overflow of sixth graders included Avondale, Bellows, Crest-
view, Deshler, Fairmoor, Glenmont, Heyl, James Road, Ninth,
Northridge, Oakland Park, and Olentangy (id. at 23-24; A, 775-
82, L. Tr. 3909). In 1964, Broadleigh was 2% and East Columbus
26% black (id.). Felton, Garfield and Pilgrim were all established
as black schools prior to 1954, see pp. 17-20 supra, and remained
overwhelmingly black in 1964 (id.).
56
gram in the area rebuilt Garfield on the same site in 1953,
which was the functional equivalent of redrawing the same,
heavily black attendance boundaries (A. 322), replaced
Mount Vernon with Beatty Park in 1954, and created two
new black facilities by further subdividing the area to
create attendance zones for the Clearbrook (1957) and
Maryland Avenue (1958) schools (PI. L. Exs. 22, 23, 399,
L. Tr. 2135-36, 3881, 3991; see PI. L. Ex. 261, L. Tr. 3898).65
Both of the latter schools were closed by 1973.
e. The 1960’s. This decade saw a continuation of con
struction, attendance zoning, grade structure, and pupil
transportation practices which ignored the possibilities for
achieving racially mixed enrollments and instead contrib
uted to further racial separation in the Columbus public
schools. Year by year, and throughout the City, school
authorities built schools, constructed additions, made as
signments and shifted pupils so as to change integrated
schools into racially segregated ones.
In the central city area, where optional zones such as
those between Main and Livingston Elementary Schools,
or Franklin and Roosevelt Junior High Schools, had been
employed to allow white students to “ escape” schools af
fected by the residential movement of blacks south of
Broad Street (see p. 46 supra), the decade opened with
the construction of Kent Elementary School in 1960. The
new facility drew its enrollment from areas previously in
cluded in the Fairwood and Main elementary zones and, to 66
66 Both schools were relatively small (see PI. L. Ex. 384, L. Tr.
3909). Clearbrook served the portion of the Douglas zone north
of Broad Street (predominantly black in 1950, PI. L. Ex. 251,
L. Tr. 3897) for grades 1-3 (L. Tr. 2885). In 1964, when racial
enrollment figures were first collected, Clearbrook was 85% black
and Maryland Park was 98% black (A. 775-82, L. Tr. 3909). The
creation of these primary school centers contained black student
populations which would otherwise have attended more racially
mixed schools (A. 319-21) ; for example, in 1964 Douglas was only
54% black while Clearbrook was 85% black.
57
a lesser degree, in the Livingston and Ohio zones; the 1960
census indicated the new Kent area was predominantly
minority (A. 489). Kent added capacity in an increasingly
black part of Columbus south of Broad Street but north of
Livingston Avenue; after it opened, the northernmost
boundary for the underutilized but virtually all-white
Deshler Elementary to the south remained fixed at Living
ston, separating white and black pupils (A. 488-89). In
1964, Kent was 75% black and Deshler only 7% black (A.
777, 779, L. Tr. 3909).66 Dr. Foster concluded that the sit
ing and size of Kent perpetuated Livingston and Deshler
as heavily white schools in an area of racial transition
(A. 489).
In 1960 an optional attendance area was established be
tween Central Senior High and North High. The optional
zone (heavily white in 1960, see PI. L. Exs. 305, 251, L. Tr.
3897, 3898; A. 464-65), was basically congruent with the
lower portion of the Kingswood Elementary area (11%
black in 1964, A. 779). It was formerly assigned to Central
High and was reassigned to Central, which served the near-
66 As the table indicates, Ohio, Main and Fairwood were over
crowded in 1959, but Deshler had a significant amount of space.
Livingston, a predominantly white school, was also overcrowded
and received an addition in 1960, PL L. Ex, 22, L. Tr. 3881. If
Kent had been built as a larger facility and located further to the
south, both it and Deshler, as well as Fairwood and Main, might
have been zoned to include substantial numbers of both black and
white students {see PI. L. Ex. 284A, L. Tr. 3898).
Enrollment**
School 1959 Capacity* 1959-60 1960-61 1961-62
Main 352 662*** 633 661
Livingston 416 469 502*** 533
Ohio 544 849 683 696
Fairwood 512 636 616 645
Kent 372 (1964) ## _ 272 300
Deshler 704 583 608 577
* PI. L. Ex. 62, L. Tr. 3882, at 49-50.
** PL L. Ex. 64, L. Tr. 3882, at 32-33.
*** Addition constructed in 1960, Pl. L. Ex. 22, L. Tr. 3881.
58
western portion of the district, in 1975 (see PI. L. Exs.
284A, 304, 305, 320, L. Tr. 3898; A. 464-66). Since there
were no capacity problems at Central which could account
for the loss of territory, Dr. Foster concluded that the
option was designed to permit white students in the Kings-
wood area to attend the “white” North High School (A.
466).67>68 A similar option was established in 1962 between
East High (95% black in 1964-65) and Linden-McKinley
High (12% black in 1964-65) (A. 466-69).
Typical of the manner in which construction, zoning an
transportation decisions could he combined with far-reach
ing segregative consequences is the history, in this decade,
of the area to the south of Columbus annexed in 1957 from
Marion-Franklin Township. (A drawing of the area with
schools and main streets located approximately appears on
the opposite page; as previously noted, the demonstrative
exhibits are available to the Court.)
67
C a p a c ity E n ro llm en t
S ch ool 19 59* 1 9 6 4 ** 1 9 6 9 * * * 19 5 9 -6 0 ** 1960-61 ** 1 9 6 4 -6 5 ** 1 9 6 9 -7 0 f 1975-76-f
Central 1,900 1,900 1,650 1,710 1,475 1,635 1,319 1,225
North 1,900 1,750 1,600 1,979 1,900 1,425 1,420 1,489
* PI. L. Ex. 62, L. Tr. 3882, at 52.
** PI. L. Ex. 64, L. Tr. 3882, at 31.
*** PI. L. Ex. 63, L. Tr. 3882, at 40, 73.
f PI. L. Ex. 384, L. Tr. 3909.
% B la ck E n ro llm en tt f
S ch ool 1 9 64 -6 5 1 9 69 -7 0 " 1974 -7 5 1 9 75 -7 6
Central 27.0% 30.4%
North 7.2% 9.6%
Kingswood 11.0% 4.8%
f t A. 779, 785, L. Tr. 3909.
33.5% 30.1%
14.1% 17.9%
5.5% 8.5%
68 The discussion of this optional area in the school board’s brief
is typical. Petitioners state that it “was not racially motivated”
(Pet. Br. 28 n. 12) but cite in support of this assertion only two
exhibits, each of which is a map showing the location of the option.
They also say that the area was equidistant between the schools (in
contrast to, for example, the Pilgrim-Fair option, see p. 45 supra) ;
but they provide no administrative or educational justification,
based on capacity or anything else, for its existence.
60
At the time of annexation, before Columbus built -any
schools or changed attendance boundaries, five elementary
schools served the area: Scioto Trail, Fornof, Heiman-
dale, Clarfield, and Smith Road (see PI, L. Ex. 261, L. Tr.
3898; compare Fig. 2, PL L. Ex. 61, L. Tr. 3882, at 17). In
1950, few blacks lived in the annexed territory (see PI. L.
Ex. 250, L. Tr. 3897); by 1960 there were three areas with
identifiable concentrations of black residence: along Alum
Creek to the northeast of the railroad tracks— assigned to
Smith Road; to the south of Watkins Road and west of
Fairwood Avenue—assigned to Clarfield; and within the
Heimanclale zone.69 Both the Clarfield and Smith Road at
tendance areas in 1957-58 included large, predominantly
white areas (see PL L. Exs. 261, 251, L. Tr. 3897, 3898).
For example, Clarfield extended along Williams Road, the
southern border of the system, west across the railroad
tracks (id.). However, black students were soon isolated
into more compact zones.
In 1959, Columbus opened the Stockbridge Elementary
School and drew its zone from Clarfield and Scioto Trail
(Pl. L. Exs. 261, 263, L. Tr. 3898). White residential areas
immediately to the south of the Heimandale zone (and in
cluding the area north o f Williams Road, west of Lock-
bourne and east of Parsons which had previously been
assigned to Clarfield) were now sent to Stockbridge.70 The
following year, additional capacity to accommodate white
69As previously noted (p. 48 supra), whites living on desig
nated streets within the Heimandale area were zoned discontigu-
ously to Fornof; Columbus maintained this discontiguous assign
ment for six years following the annexation. Heimandale’s capacity
was little more than half that of the other schools operated by the
township. See PI. L. Ex. 62, L. Tr. 3882, at 25-27.
70 An alternative would have been to enlarge Heimandale (see.
note 69 supra) and send white students in newly developing residen
tial areas there.
61
students living west of the railroad tracks which formed
Stockbridge’s eastern boundary was provided by the con
struction of the Parsons Elementary School, which took the
southern portion o f the Scioto Trail zone (PI. L. Ess. 263,
284A, 251, L. Tr. 3897, 3898).
The Clarfield zone was also reduced on the east. In
1961-62, Watkins Elementary School was opened, sub
stantially reducing the size of the Clarfield zone71 but leav
ing the blocks with the greatest black population density
in 1969 in Clarfield (see PI. L. Exs. 264, 251, L. Tr. 3897,
3898).72> 73 Rapid population growth in the Watkins zone
required further changes in 1963-64. First, Watkins ceded
a small area south of Watkins Road and east of Fairwood
Avenue to Clarfield (compare PL L. Exs. 265-266, L. Tr.
3898). This area was that portion of the Watkins zone
71 Watkins was built as a larger school than Clarfield or Stock-
bridge. See PL L. Ex. 64, L. Tr. 3882, at 32-34.
72 The Watkins boundary ran north of Watkins Road to the
west of Fairwood Avenue, and south of Watkins Road to the east
of Fairwood Avenue. This boxed areas of black residential con
centration west of Fairwood but south of Watkins into the Clarfield
zone even though both attendance areas included within them ter
ritory which crossed both thoroughfares (PI. L. Exs. 264, 251, L.
Tr. 3897, 3898).
73 Although Clarfield was overcrowded in 1959, Watkins’ opening
cut its enrollment to less than half its capacity during the next
two years; however, white students from the now-overcrowded
Stockbridge facility were not reassigned to Clarfield—instead, four
additional classrooms were built at Stockbridge in 1961 (A. 511) :
Capacity _______ Enrollment** ________
School 1959* 1964** 1959-60 1960-61 1961-62 1962-63
Clarfield 448 434 489 514 241 294
Watkins — 527 — — 405 558
Stockbridge 320 434 350 361 386 413
* PI. L. Ex. 62, L. Tr. 3882, at 49, 54.
** PI. L. Ex. 64, L. Tr. 3882, at 32-34.
62
immediately across from the black population concentra
tion in 1960 (see PL L. Exs. 266, 251, L. Tr. 3897, 3898)
and it had become predominantly black by 1970 (see PI. L.
Exs. 266, 252, L. Tr. 3897, 3898).74 Second, the entire por
tion of the previous Watkins zone south of Refugee Road
and east of the Norfolk and Western Railroad tracks was
detached and assigned to Moler Elementary as a discontig
uous zone.75
The same year, 1963-64, significant changes affecting
Heimandale and Fornof were also made. Prior to that
time, the Fornof zone extended across the railroad tracks
in its northeast corner to include a small square parcel
south of Refugee Road, north of Prank Road and east of
Parsons Road (see PL L. Exs. 261, 265, 251, L. Tr. 3897,
3898). In 1960 that parcel included significant black popu
lation (see PL L. Ex. 251, L. Tr. 3897). These black resi
dences were removed from the Fornof zone in 1963 when
a six-room addition to Heimandale was completed, and the
boundary between the schools shifted west to the railroad
tracks. Fornof was greatly under capacity after the zone
shift while Heimandale remained crowded, even after con-
74 This change boosted Clarfield’s enrollment to 530 in 1963-64
(PI. L. Ex. 64, L. Tr. 3882, at 32), making the assignment of white
students living west of the railroad tracks to Clarfield impossible.
See note 73 supra.
75 This discontiguous area is discussed in the district court’s opin
ion (Pet. App. 33-34) and is described in greater detail at pp.
64-67 infra. The Board errs in suggesting (Pet. Br. 32) that
students in the discontiguous area were transported to Smith Road
Elementary School until 1963. The exhibits cited by Petitioners
all deal with annexations, not school assignments. On the other
hand, the official boundary description sheets (PI. L. Exs. 258C,
258D, L. Tr. 3897) and the overlays prepared from the directories
(PI. L. Exs. 264, 284A, L. Tr. 3898) show that these students were
reassigned from Smith Road to Watkins when the latter opened in
1961.
63
struction of the addition;76 in 1964-65, Fornof was 0.2%
black and Heimandale 40% black (A. 778, L. Tr. 3909).77
Further changes in elementary school attendance in the
1957 annexation area south of Refugee Road were made
during the following three years. In 1964, what remained
of the Watkins zone was halved from east to west along
Koebel Road; the area north of Koebel Road and south of
Refugee was assigned to the new Koebel Elementary
School. The 1970 census indicates that this configuration
placed an area of high black residential concentration south
of Koebel Road in the Watkins zone while leaving Koebel
predominantly white (see PI. L. Exs. 267, 252, L. Tr. 3897,
3898); this was reflected in the enrollment disparity be
tween the schools (A. 779, 782, L. Tr. 3909).78 Elementary
school capacity for white students west o f the Heimandale
zone was supplemented by the construction of additions to
Parsons in 1964 (A. 512) and Scioto Trail in 1965 (A. 513);
also in 1965 the C'edarwood Elementary School opened to
serve the southern portion of the Parsons zone (see PI. L.
Ex. 267, L. Tr. 3898). Finally, in 1966 an addition was
76
Capacity Enrollment
School 1959* 1964** 1962-63** 1963-64** 1964-65f 1965-66f
Fornof 480 403 477 345 336 340
Heimandale 224 403 281 438 466 459
*P1. L. Ex. 62, L. Tr. 3882, at 49.
** PI. L. Ex. 64, L. Tr. 3882, at 32.
t PI. L. Ex. 63, L. Tr. 3882, at 41-42.
77 The Heimandale-Fornof discontiguous zone (see p. 48 supra)
was also ended effective 1963-64.
78
% Black*
School 1964-65 1965-66 1966-67 1967-68 1968-69 1969-70 1970-71
Watkins 24.0% 62.0% 64.0% 73.5% 75.1% 76.4% 77.1%
Koebel
* A. 779, 782, L. Tr. 3909.
— 11.3% 10.7% 34.5% 39.2%
64
constructed at Clarfield (A. 514) and a small black area
shifted from Watkins to Clarfield (see PI. L. Exs. 268, 252,
L. Tr. 3897, 3898). Clarfield was made the largest elemen
tary school in the entire area south of Refugee Road, with
a capacity of 667 (PI. L. Ex. 63, L. Tr. 3882, at 68), in order
to house these black students even though Fornof remained
underutilized79 and white students living east of the N and
W railroad were bused to overcrowded Moler.80- 81
Plaintiffs’ expert witness, Dr. Gordon Foster, described
the 1959-66 activities in this portion of the district in some
detail (A. 504-15). He concluded that alternative zoning
configurations existed— especially in light of the crossing
of physical barriers at various times in the past— and that
the entire set of schools could have been integrated through
simple pairing involving the territory west of the Chesa
peake and Ohio railroad tracks (the Heimandale-Fornof
boundary) and that to the east (A. 513-14); see also, A.
517).
79 See note 76, supra and accompanying text.
80
Enrollment** % Black*m*
School Capacity* 1965-66 1966-67 1967-68 1965-66 1966-67 1967-68
Clarfield 434 545 690 6 6 8 70% 80% 84.9%
Watkins 538 670 480 467 62% 64% 73.5%
Moler 310 421 457 459 0.3% 2.5% 3.9%
Fornof 403 340 323 310 0.3% —• 1 .2 %
*Pl. L. Ex. 64, L. Tr. 3882, at 55-57.
** PI. L. Ex. 63, L. Tr. 3882, at 41-43.
***A. 775-82, L. Tr. 3909.
81 Thus, if a school had been constructed, perhaps east of the N &
W railroad tracks and the Clarfield, Watkins and Koebel zones re
adjusted, the discontiguous transportation to Moler could have been
eliminated and schools in the area integrated. In one of the deseg
regation proposals developed more than a decade later by the school
system’s staff, the attendance areas for Koebel and Watkins, and
the Moler discontiguous area would have been clustered (R. Tr.
192). Another would have combined the Moler discontiguous area,
Clarfield, and Stockbridge (R. Tr. 206).
65
Thus far, we have described (for elementary schools)
the disposition, in the 1960’s, of the portion of the 1957
Marion-Franklin annexation which lay south of Refugee
Road. We now turn to the area north of Refugee Road; the
two are connected by the Watkins-Moler discontiguous
busing.
As we previously noted, by 1960 there was an identifiable
grouping of black residences north of Refugee Road be
tween the N&W railroad tracks and Alum Creek which was
included in the Smith Road school attendance area (see
PI. L. Exs. 284A, 251, L. Tr. 3897, 3898). At the same time
Watkins Elementary opened (see pp. 61-62 supra), Colum
bus also completed construction of a new facility in the
Smith Road area. This school, Alum Crest Elementary,
was zoned from north to south, all the way from Livingston
Avenue to Refugee Road. It withdrew the grouping of
black residences from the Smith Road school (see PI. L.
Exs. 264, 251, L. Tr. 3897, 3898).82 In 1963, another ele
mentary school (Moler) was opened to the north; it drew
its attendance zone from the southern portion o f Deshler
and the northern part of Smith Road, but it did not cross
82 Capacity figures indicate that Smith Road was overcrowded in
1960 (see note 83 infra) ; its enrollment was reduced by both the
opening of Alum Crest and the movement of its southern boundary
to Refugee Road in conjunction with the opening of Watkins (see
PI. L. Exs. 284A, 264, L. Tr. 3898). Of course, the zone line be
tween Smith Road and. Alum Crest need not have been fixed so as
to separate white and black students. In 1964-65, Alum Crest was
50% black and Smith Road was all white, A. 776, 781, L. Tr. 3909.
(It is clear that only the Alum Crest zoning removed minority
population from Smith Road: the area south of Refugee went to
Watkins in 1961; in 1963, the portion of that area east of the
N&W tracks was transported to Moler, 0.2% black in 1964. The
remainder was all-white in 1960, PI. L. Ex. 251, L. Tr. 3897, and
most of it was zoned to Koebel in 1964, at which time Koebel was
all-white, A. 779, L. Tr. 3909. Another portion of the pre-1961
Smith Road zone was withdrawn to create Moler in 1963—but as
noted, that school was 0.2% black in 1964.)
66
into the elongated Alum Crest zone (compare PI. L. Exs.
265, 266, L. Tr. 3898). Prom the very day of its opening,
Moler also received students from the Watkins discon
tiguous zone (see p. 62 supra) even though this over
crowded the building83 and even though space was available
at adjacent Alum Crest.84' 85 In 1964, Smith Road and Moler
were all-white schools, while Alum Crest was 50% black
(A. 776, 779-81, L. Tr. 3909). By 1970, the black community
had expanded southward in the Alum Crest zone east of
the N&W railroad while Smith Road and Moler, to the
west, remained predominantly white (see PI. L. Exs. 272,
252, L. Tr. 3897, 3898). Alum Crest school was 77% black,
83
Capacity Enrollment
School 1959* 1964** 1960-61** 1961-62** 1962-63** 1963-64** 1964-651 1965-663 1966-673
Smith Rd. 480 434 531 383 468 336 403 266 304
Watkins .— 527 — 405 558 538 615 670 480
Alum
Crest 310 199 2 2 0 256 330 297 254
Moler — 310 — — — f t 396 421 457
* PL L. Ex. 62, L. Tr. 3882, at 50.
** PL L. Ex. 64, L. Tr. 3882, at 32-34.
t Pl. L. Ex. 63, L. Tr. 3882, at 41-43.
ft Omitted from Pl. L. Ex. 64, L. Tr. 3882, at 33. Total enrollment 352 (Pl.
L. Ex. 384, L. Tr. 3909) ; total capacity 310 plus 2 kindergarten rooms (Pl. L.
Ex. 64, L. Tr. 3882, at 56).
84 Rooms at Alum Crest were rented to an organization which
provided instruction for retarded children rather than having
white students assigned to them (A. 696). The 1959 Ohio State
facilities study had recommended that the system help the Council
for Retarded Children obtain a site between Broad Street and
Livingston Avenue, south of Fort Hayes (Pl. L. Ex. 62, L. Tr.
3882, at 72).
85 The school board suggests that Alum Crest was overcrowded in
1963 and 1967-68 (Pet. Br. 32-33). As to 1963, the reference is to
grades K-6 enrollment and grades 7-6 capacity (see note 56 supra).
Compare note 83 supra. As to the latter year, Petitioners seek to
compare 1967-68 enrollment in grades K -6 to a reduced grades 1-6
capacity figure not established until 1969, in Pl. L. Ex. 63, L. Tr.
3882; see note 29 supra.
67
Moler was 12% black, and Smith Road 1.3% black in 1970
(A. 776, 779-81, L. Tr. 3909). Dr. Foster concluded that the
discontiguous transportation to Moler was for racial pur
poses (A. 507-08, 517), as did the district court (Pet. App.
33-34).
The Alum Crest school was also affected by yet another
discontiguous zone established in the 1960’s. An area im
mediately to the east, across Alum Creek, was joined to the
school system in 1959 in an annexation o f territory to the
south of Bexley and Whitehall (compare PL L. Exs. 262,
263, L. Tr. 3898). It is shown on the census maps for 1950,
1960 and 1970 as being less than 10% black (see PI. L. Exs.
250, 251, 252, L. Tr. 3897), although it was not heavily
populated when first annexed (L. Tr. 5384). It was shifted
among the attendance areas of several schools prior to
1964-65.86 Commencing in 1964 and continuing through
1967-68, the area was zoned discontiguously to Barnett
Elementary, a school which had opened that year, located
in a very small attendance zone between Pinecrest and
James Road Elementary Schools (see PI. L. Exs. 267-70,
L. Tr. 3898). Barnett enrolled no black students prior to
the 1969-70 school year (A. 776, L. Tr. 2909). In 1968, the
86 In 1959-60, the boundaries for Berwick, Scottwood and Court-
right were extended due south to encompass the area (see PL L.
Ex. 263, L. Tr. 3898). The following year, the Berwick and Scott
wood zones’ southern boundaries were moved northward and the
Courtright zone extended as far west as Alum Creek to take in
much of the area (see PI. L. Ex. 284A, L. Tr. 3898). In 1961-62,
the Courtright zone was also reduced in size; the area in question
found itself now split between Berwick and Woodcrest schools (the
latter being at the eastern extremity of the school district, to the
east of the City of Whitehall) (see PI. L. Ex. 264, L. Tr. 3898).
The next year (1962-63), the Berwick zone was further contracted
to the north and the entire area assigned to Woodcrest (see PI. L.
Ex. 265, L. Tr. 3898). Finally, in 1963-64, the entire area was re
assigned to Courtright (see PI. L, Ex. 266, L. Tr. 3898).
68
school system constructed and opened the Easthaven Ele
mentary School, which absorbed most of the discontiguous
area within its attendance zone; however, a remaining por
tion along Alum Creek just south of the Berwick zone
continued to be sent to Barnett at the time of trial (see
PL L. Exs. 271, 278, L. Tr. 3898). Throughout the period,
space continued to be available at Alum Crest,87 the pre
dominantly black school just across the creek.88’ 89 The
school system official responsible for pupil assignments
testified that students east of Alum Creek were bused to
Barnett because it had space available (L. Tr. 5383-85).
However, this was true only because Barnett’s capacity was
never used to relieve overcrowding at adjacent elementary
87 See note 83 supra and PL L. Ex. 384, L. Tr. 3909, which shows
a consistently declining enrollment at Alum Crest after 1968.
88 The following figures are from A. 775-801, L. Tr. 3909:
Alum Crest Barnett Easthaven
% Black % Black % Black % Black % Black % Black
Year Students Faculty Students Faculty Students Faculty
1964-65 50.0 33.3 — • — — —
1965-66 70.0 40.0 0 0 — —
1966-67 80.0 40.0 0 0 — —
1967-68 72.9 50.0 0 0 — —
1968-69 67.3 42.9 0 0 0 0
1969-70 77.0 40.0 2 .0 0 0 0
1970-71 78.6 46.2 1.9 0 0 .6 6.7
1971-72 86.4 87.5 5.1 8.3 0.7 1 1 .8
1972-73 78.5 77.8 3.4 0 3.0 1 0 .0
1973-74 79.2 50.0 3.7 18.2 3.9 8 .0
1974-75 78.7 25.0 4.1 2 0 .0 4.9 13.0
1975-76 78.7 16.7 10.4 0 9.2 13.1
89 At least from 1967 on, access to Alum Crest was very con
venient via the Interstate 70 bridge across Alum Creek. See Fig. 8 ,
Pl. L. Ex. 63, L. Tr. 3882, at 31. See also, A. 637-38. One of the
desegregation plans developed by the staff in 1977 would have
clustered the Easthaven, Alum Crest and Moler zones (R. Tr.
194A).
69
facilities90 (compare Pet. Br. 31 n.17). This discontiguous
zone, like that involving the Watkins area, represented an
administrative choice to bus white children beyond the
closest school where that school has a substantial black
population.91
Thus, between 1959 and the time of trial, through a com
bination of new construction, selective additions to schools,
movement of attendance zone boundary lines, creation of
discontiguous areas and pupil transportation, elementary
students within an enormous area in the south and south
eastern portions of the Columbus district were assigned to
schools in which they were largely separated on the basis
of race. Much the same thing occurred at the junior high
level.
In 1957, the Beery (or Marion-Franklin, as it was called
in some years) Junior High School served the entire 1957
annexation area, as far east as Alum Creek (see PL L. Ex.
1964 Enrollment
School Capacity* 1963-64* 1964-65** 1965-66** 1966-67** 1967-68**
Barnett 3 4 4 ### -- - 263 313 366 377
James Rd. 403 407 457 470 439 412
Pineerest 620 6 8 8 906 835 781 712
Scottwood 589 596 737 789 656 602
Alum Crest 310 256 330 297 254 293
*P1. L. Ex. 64, L. Tr. 3882, at 32-34, 55-57.
**P1. L. Ex. 63, L. Tr. 3882, at 41-43.### p| p Ex. 64, L. Tr. 3882, at 57, 60.
91 Obviously, Alum Crest could not have accommodated students
from both the Watkins and Barnett discontiguous zones. However,
we have previously suggested (note 81 supra) that the Watkins-
Moler discontiguous area could have been part of an overall realign
ment to desegregate all of the schools south of Refugee, and west
of the N&W tracks. Similarly, assignment of white students across
Alum Creek instead of to Barnett, combined with realignment of
the Alum Crest, Moler and Smith Road boundaries, see text at
notes 83-84 supra, could have created stable desegregation north of
Refugee Road.
70
281, L. Tr. 3898). Residential increase within this area
made the provision of additional capacity necessary and
another junior high school (Buckeye) was opened in 1963.92
Buckeye was located in a virtually all-white area near the
Fornof and Scioto Trail schools and its eastern boundary
set along the Chesapeake and Ohio railroad tracks {see
Pl. L. Exs. 287, 251, L. Tr. 3897, 3898). This had the effect
of excluding from the new school all of the areas annexed
from Marion-Franklin Township having any significant
black population. In 1964-65, Beery was 22% black, while
Buckeye was all white (A. 783, L. Tr. 3909).
Beery was over capacity at least from 1961-62 through
1964-65, while Buckeye was underutilized in 1963-64 and
1964-65 {see note 92 supra). Yet no adjustment of the
boundaries was made. Instead, Beery received an addi
tion, raising its capacity, in 1965 (PI. L. Ex. 22, L. Tr.
3881) and actually picked up a small piece of territory
(between Lockbourne Road and the C&O tracks) in the
southeast corner of the Buckeye zone {see PI. L. Exs. 251,
289, L. Tr. 3897, 3898). Both schools were operated below
capacity in 1965-66 (note 92 supra). The following year,
both facilities were about twenty students above capacity;
an addition was placed at Buckeye which allowed it to re
main underutilized in 1967-68. Although Beery was over
crowded in 1967-68, again there was no adjustment of the
zone boundary with Buckeye {see PI. L. Exs. 290, 291, L.
C a p a city
1959* 1 9 6 4 ** 1 9 6 9 j
E n ro llm en t
f 6 4 -5 f 65-et gg-7t 67-gf 6 8 -9 f
800 846 767
528
831
573
848
652
921
722
995
742
806
823
S ch ool 19 59* 1 9 64** 4969f 61 -2** 63 -3** 63-4*
B eery (M arion-
F ranklin ) 600 *** 900
Buckeye ----- 700 900
* PI. L . E x . 62, L . T r. 3882, at 25.
**P 1 L Ex. 64, L . Tr. 3882, at 31.
*** Capacity figures given only fo r M arion-Franklin Jr.-Sr. H igh com bined, see PI. H Ex.
64 L T r 3882 at 31. Total capacity was 1900; total enrollment in 1962-63 was 1562; total
enrollment in 1963-64 was 1654. Id . Beery had an addition in 1965 (P I. L . Ex. 22, L . Tr.
3881).
t PI. L . Ex. 63, L . T r. 3882, at 40, 73.
71
Tr. 3898; PI. L. Ex. 22, L. Tr. 3881; note 92 supra). That
year, Beery was 40% black, Buckeye 0.1% black (A. 783,
L. Tr. 3909).
In 1968, the effects of the siting and zoning of Buckeye
were really felt. Beery’s capacity problems were relieved
by the opening of another junior high school, this time
north of Refugee Road. This school— Southmoor Junior
High—was held up as a model application of the school
board’s 1967 policy of considering race affirmatively in lo
cating and zoning new schools to promote desegregation.
Indeed, its zone included predominantly black areas as
signed at the elementary level to Alum Crest, and pre
dominantly white areas assigned to Smith Road (see PI. L.
Exs. 271, 292, 252, L. Tr. 3897, 3898), and its first enroll
ment was almost exactly one-third black, close to the
system-wide proportion (A. 784, L. Tr. 3909). Less pub
licized was the fact that the change withdrew a large,
predominantly white area from the Beery zone on its north
east ; such areas to the southwest were already excluded by
the Buckeye boundary along the C&O Railroad tracks.
Between 1967-68 and 1968-69, Beery jumped from 40%
black to 54% black, while Buckeye declined marginally
from 0.1% black to 0.0% (A. 783-84, L. Tr. 3909). In 1971,
Buckeye was 1.3% black; Beery, 67.2% black; and South
moor, 41.5% black (id.). As Dr. Foster pointed out,
Marion-Franklin High School still served the entire area,
east and west of the C&O tracks, at the time of trial and an
alternate boundary between Beery and Buckeye which
crossed the tracks would have avoided the junior high
segregation problem which still existed (A. 517). In 1975-
76, Buckeye was 2% black; Beery was 70.3% black (A. 783,
L. Tr. 3909). One of the staff-developed desegregation
plans in 1977 proposed to assign to Beery students from
the existing attendance areas for Watkins, Heimandale,
72
Fornof, Scioto Trail, Reeb, and Lincoln Park; and to as
sign to Buckeye students from the Moler discontiguous
area, Clarfield, Ivoebel, Stockbridge, Parsons and Cedar-
wood (R. Tr. 197).
The pattern described in the south-southeastern portion
of the district was replicated in the Linden area, another
part of the district in which both white and black popula
tions continued to grow in the 1960’s.98 Decisions about
construction,93 94 * school zoning, grade structure and pupil
transportation played important roles in shaping the racial
composition of student enrollments. As the black popula
tion expanded northward from 5th to 11th, 11th to 17th
Avenue, and 17th Avenue to Hudson Street (see A. 246),
existing school zone boundaries moved northward, new
black schools were built to the south, and new white schools
to the north. (See map, p. 49 supra, in connection with
this discussion.)
In 1961, the Board acted to deal with population in
creases southwest of the Ohio State Fairgrounds in a man
ner similar to that used in 1957 for Douglas Elementary—
construction and zoning of an all-black primary school (see
p. 56 and note 65 supra). Sixth Avenue Elementary School
was opened for students in grades 1-3 with a zone drawn
from north to south, taking in the easternmost portion of
the Weinland Park Elementary School zone and the north
east corner of the Second Avenue zone (see PL L. Exs. 261,
264, L. Tr. 3898).96 The area thus drawn for the Sixth
Avenue facility had been predominantly black since 1950,
93 The events of the 1950’s in this part of the school district are
set out at pp. 48-55 supra.
94 The examples of segregative construction in the district court’s
opinion are from this geographic area (Pet. App. 21-24).
96 Students in grades 4-6 within the area attended either Wein
land Park or Second Avenue, depending on the old zone boundaries.
73
in contrast to most of the remainder of the Weinland Park
and Second Avenue zones {see, e.g., PL L. Exs. 261, 250,
251, L. Tr. 3897, 3898). By the year for which enrollment
figures are first available, 1964-65, Sixth Avenue was 91%
black; Weinland Park and Second Avenue schools were
30% and 28% black, respectively (A. 781-82, L. Tr. 3909).
This attendance configuration was continued through the
1973-74 school year, after the filing of this lawsuit. In that
year, Sixth Avenue was 95% black, Weinland Park was
31% black, and Second Avenue was 17% black {id.). After
Sixth Avenue was closed, the Weinland Park and Second
Avenue zones were returned to the pre-1961 state {compare
PI. L. Exs. 263, 278, L. Tr. 3898). Weinland Park’s enroll
ment was then 47 % black; Second Avenue’s did not change
appreciably (A. 781-82, L. Tr. 3909). Thus for thirteen
years, black students in grades 1-3 in this area were as
signed to a heavily black school created by school officials
through subdivision of existing “ neighborhood school” at
tendance areas. Dr. Foster pointed out that this result
could easily have been avoided by drawing attendance
boundaries for Sixth Avenue in different directions,96 but
no explanation for the board’s choice of the segregative
alternative was ever suggested (Pet. App. 24).
As the black population of Columbus expanded north
ward to the east of Cleveland Avenue, the school system
opened Brentnell Elementary School in 1962. Its atten
dance zone took in portions of the previous areas for
Shepard, Arlington Park, Eleventh Avenue, Duxberry Park
and Leonard Elementary Schools {see PI. L. Exs. 264, 265,
96 Of eour'se there was no educational or logistical reason which
compelled the elongated, north-to-south zoning of Sixth Avenue.
Before 1961 and after 1973, students were assigned on an east-west
basis to Weinland Park and Second Avenue in grades 1-3.
74
251, L. Tr. 3897, 3898).97 In 1964, Brentnell was 75%
black; Duxberry Park was 30% black; and Arlington Park
was 0% black (A. 776-77, L. Tr. 3909). During the rest
of the decade, the school district opened three small
facilities south of Hudson -Street as predominantly black
schools, while continuing to add capacity in areas north of
Hudson which were predominantly white (see PI. L. Exs.
268-273, 251, 22, 399, L. Tr. 2135-36, 3881, 3897, 3898).
In 1965, Gladstone Elementary opened, located between
Hamilton Elementary and Duxberry Park (see PL L. Ex.
268, L. Tr. 3898). It was a small school98 with a small
zone, and one which was predominantly black from the
97 The Arlington Park area transferred to Brentnell was a tract
(well to the south of Arlington Park itself), which had been an
nexed to the district in 1958-59 and assigned to the Arlington Park
school (see P. L. Exs. 261, 262, L. Tr. 3898). The Leonard con
tribution was the former American Addition area, see note 15,
and p. 50 supra. From Duxberry Park the new school received
the area between Windsor Avenue on the south, 23rd Avenue on
the north, Joyce Street on the west and Woodland Avenue on the
east—the same area which had been discontiguously zoned to Linden
from 1957-59, see p. 50 supra. The change moved Duxberry Park’s
southern bound (east of the railroad track) northward, away
from advancing black residential settlement, from Windsor Ave
nue to 23rd Avenue; and it limited Arlington Park’s zone to
areas north of Hudson Street and Mock Road ( compare PI. L
Exs. 264, 251, L. Tr. 3897, 3898 with PI. L. Exs. 265, 251, L. Tr.
3897, 3898). To the west of the Penn Central railroad in the Cleve
land Avenue corridor, the Duxberry Park zone did dip below 23rd
Avenue and take in predominantly black areas, but these were re
moved in 1965 when Gladstone Elementary opened {see text infra).
98 rpjjg i 9 g4 Ohio State facilities study had suggested construc
tion of a school with ten classrooms and a kindergarten on a site
which the school board had arranged to purchase, PI. L. Ex. 64,
L. Tr. 3882, at 65. However, even after an addition in 1968, PI.
L. Exs. 22, 399, L. Tr. 3882, Gladstone had only nine classrooms,
see PI. L. Ex. 63, L. Tr. 3882, at 69. It was one of the smallest
elementary schools in the area (id.). See also A. 212-13. A larger
facility could have opened less racially isolated.
75
start." Gladstone’s opening realigned the southern boun
dary of Duxberry Park northward in the area west of the
Penn Central Railroad (see note 97 supra) ; its zone was
fashioned entirely from the former Duxberry Park area
(see PI. L. Exs. 267, 268, L. Tr. 3898) and reduced the black
student population in Duxberry Park.* 100 Dr. Foster de
scribed Gladstone as a school built to “ contain” the ex
panding black pupil population south of Hudson Street
and noted that boundary shifts or pairing with schools
north of Hudson Street101 (which were all-white at the
time) could have resulted in integrating all of these schools
(A. 522; see also, A. 214).102
90 In 1966-67, the first year for which figures are available, Glad
stone was 78% black. After that school year, Gladstone was con
sistently above 90% black (A. 792, L. Tr. 3909; see note 104
infra). Prior to construction of the school, the chairman of the
NAACP’s Education Committee and others warned that it would
be a segregated school, to no avail (A. 212-14).
100 In 1965-66, Duxberry’s student body was 40% black com
pared to 30% in 1964-65; it dropped to 33% in 1966-67 before
rising again as Columbus’ black population moved northward
(A. 777, L. Tr. 3909). Clearly, Duxberry Park would have ap
proached or exceeded majority-black status in 1965-66 had Glad
stone not drawn away substantial numbers of black pupils.
101 Elementary school attendance areas had long crossed Hudson
Street. For example, the Linden zone crossed Hudson in 1965
between Dresden Street and the Penn Central tracks, extending
as far south as Duxberry Avenue—the northern boundary of Glad
stone Elementary (see PI. L. Exs. 268, 251, L. Tr. 3897, 3898).
Ten years earlier, both the McGuffey and Linden zones crossed
Hudson, with Linden’s zone extending far to the south below
Windsor Avenue (see Fig. 2, PI. L. Ex. 61, L. Tr. 3882, at 17).
In 1953, the Ohio State study recommended that crowding in
Hamilton Elementary School be dealt with by involving the Mc
Guffey and Linden schools north of Hudson (PI. L. Ex. 60, L. Tr.
3882, at 65).
102 The district court opinion found that Gladstone could have
been constructed nearer Hudson Street and zone lines drawn in a
north-south fashion to achieve the same result (Pet. App. 22).
76
Instead of adopting such a course, Columbus constructed
another very small school103 in the vicinity and opened it
in 1966 with a zone stretching in a thin band south of
Hudson Street across the top of the Hamilton zone (see
PL L. Ess. 268, 269, 251, L. Tr. 3897, 3898). The area was
heavily black by 1970 (see PI. L. Exs. 269, 252, L. Tr. 3897,
3898; A. 523-24). Hudson’s opening relieved an over
capacity problem at Hamilton and ended the intact trans
portation of four classes from Hamilton to Arlington Park
(A. 633)— assignments which would have been integrative
had pupils from the sending and receiving schools been
assigned to classes together (see note 21 supra) : in 1966
Hamilton was 61% black, while Arlington Park was all
white (A. 776, 778, L. Tr. 3909). Hr. Foster concluded
that Hudson, like Gladstone, was constructed to contain the
black population south of Hudson Street (A. 525-26; see
also, A. 207).104’ 105
103 In 1969, Hudson was the same size as Gladstone, see PI. L.
Ex. 63, L. Tr. 3882, at 69; see also note 98 supra.
104 The following table is prepared from A. 775-82, L. Tr. 3909:
% B la ck S tu d en t E n ro llm en t
S ch ool 1964-65 1965 -6 6 19 66 -6 7 1967-68 1968 -6 9 1969-70 1970-71
Linden 0 0 0 .1 2.4 3.5 8.3 1 0 .6
Me Guffey 0 0 0 .1 5.9* 6.7 12.4 20.4*
Como 0 0 0 0.3 0 0 0 .2
Hudson — — — 41.9 54.3 62.4 69.2
Hamilton 27.0 48.0 61.0 85.0 90.3 93.0 93.4
Gladstone .— — 78.0 91.2 92.2 96.7 97.4
Duxberry Pk. 30.0 40.0 33.0 45.8 50.4 74.4 80.4
Combined elementary-junior high enrollment.
105 Not only Gladstone and Hudson, but also the white schools
north of Hudson Street were overcrowded at this time (see table
below). Instead of constructing small, segregated schools, the
Columbus system could have built larger facilities to relieve ca-
77
Finally, the same year (1966-67) another small, all-black
school having the same capacity as Hudson and Glad
stone was built further to the south, drawing its atten
dance area from the Eleventh Avenue and Milo zones (see
PL L. Exs. 268, 269, L. Tr. 3898). Lexington was 100%
black in the 1967-68 school year, when the first statistics
are available, and has been a virtually all-black school
since that time (A. 779, L. Tr. 3909).
As was the case in the southern area of the school dis
trict, these developments at the elementary grade level
were paralleled in the junior high schools. We have pre
viously described how an attendance boundary was estab
lished in 1957 between Linmoor and Linden-McKinley
junior high schools which ran from west to east along
Hudson Street and north to south along the Penn Central
tracks, separating black and white areas between 17th
Avenue and Hudson Street (see p. 52 supra). In
1960, the Medina Junior High School opened north of
Hudson Street with a zone encompassing all-white res
idential areas (see PI. L. Exs. 283, 284, 251, L. Tr. 3897,
3898). Arlington Park junior high students were re
assigned to Linden-McKinley (see text following note 63,
supra), which now served a smaller zone extending north
capacity needs on both sides of Hudson Street (see note 101 supra)
in an integrative fashion.
C a p a city E n ro llm en t**
School 1964* 1 9 69** 1964-65 1965-66 1966-67 1967 -6 8
Linden 837 812 947 958 1009 1045
McGuffey 744 696 878 877 855 864
Como 558 464 616 600 603 599
Hudson -------- 261 — — 359 369
Hamilton 837 841 1244 1274 1064 1068
Gladstone — 261 — 312 365 352
Duxberry Park 434 406 784 506 410 398
* PI. L. Ex. 64, L. Tr. 3882, at 55-56.
** PI. L. Ex. 63, L. Tr. 3882, at 41-42, 69-70.
78
and south of Hudson Street (see PL L. Exs. 284, 251, L.
Tr. 3897, 3898). In 1962-63, Columbus created another
junior high north of Hudson Street by building an addi
tion and extending the grade structure of McGuffey Ele
mentary school from K-6 to K-9 for this purpose (see
PI. L. Exs. 22, 399, 286, 251, L. Tr. 2135-36, 3881, 3897,
3898). Medina’s southern boundary was moved northward
to Weber Road and Arlington Park junior high students
assigned discontiguously to Medina (see pp. 54-55 supra).
McGuffey was given a zone running south of Weber to
Hudson Street plus the Duxberry Park elementary area
east of the Penn Central tracks. Linmoor’s attendance
area expanded eastward and junior high grades at Linden-
McKinley were eliminated (see PI. L. Exs. 286, 287, 251,
L. Tr. 3897, 3898).
The net effect of these changes from 1957 to 1963 was
that white junior high students living north of Hudson
Street were consistently provided with an alternative to
attending classes with substantial numbers of black stu
dents. Although Linmoor was constructed to permit the
entire Linden-McKinley facility to he used for senior high
grades, and although it could, together with other adjacent
facilities, have assumed all of Linden-McKinley’s junior
high enrollment when it opened (see note 59 supra), the
school hoard retained Linden-McKinley junior high until
two additional white junior high schools could be con
structed north of Hudson Street.106 Only then was Lin
moor’s zone expanded to take in the remainder of the
Linden-McKinley zone.
106 Indeed, there was so much junior high capacity built north
of Hudson that in 1963-64, the eastern portion of Crestview junior
high school’s zone was made optional to McGuffey, and then added
permanently to the McGuffey zone the following year {see PI. L.
79
Substitution of Linmoor Junior High for Linden-McKin-
ley in the area south of Hudson Street, at least as that
area was enlarged through the addition of territory for
merly assigned to Everett (see note 60 supra and accom
panying text), was inadequate to house all junior high
students. By 1962, Linmoor was overcrowded (see note
106 supra). This helped to justify the construction of
Monroe Junior High school to the south, near Fort Hayes
(see map, p, 13 supra) in 1964. Monroe was zoned to
include areas formerly sent to Champion and also the
portion of the Everett-Linmoor optional area with the
greatest concentrations of black population (see PI. L.
Exs. 287, 288, 251, 252, L. Tr. 3897, 3898). This completed
the series of events shaping the racial composition of junior
high schools in the area in 1964-65, the first year for which
figures are reported: * * * * * *
Exs. 287, 288, L. Tr. 3898). This occurred even though Linmoor,
directly to the south of McGuffey, was overcrowded:
Capacity Enrollment __________ _____________ __
School 1959* 1964** 1959-60** 1960-61** 1961-62** 1962-63** 1963-64** 1964-65f
Linmoor 1000 1050 1021 1011 1023 1083 1106 1098
McGuffey -— 700 — — 607 610 660 694
There was no overcrowding at Crestview; in addition, Indianola Junior High
School—to the south of Crestview and west of Linmoor—was under capacity
(see note 59 supra) and could have housed the students sent to McGuffey:
Crestview 700 1100 738 788 882 913 990 1028
Indianola 950 950 824 828 8 8 8 894 895 819
* PI. L. Ex. 62, L. Tr. 2882, at 52-53.
** PL L. Ex. 64, L. Tr. 3882, at 25.
t PL L. Ex. 63, L. Tr. 3882, at 40.
80
% Black, 1964-65
School Students107 Faculty
Medina 0 0
McGuffey 0 0
Linmoor 60.0109 Q U O
Monroe 100.0 39.4111
Champion 100.0 97.3
Everett 35.0112 7.1
Indianola 13.7US 0
The opening of Monroe under the circumstances described
drew protests about segregation (A. 602-03), hut as was
the case with elementary schools, a combination of school
siting, underutilization or overcrowding of existing
107 A. 783-84, L. Tr. 3909.
108 A. 798-99, L. Tr. 3909.
109 Since the Monroe zoning removed many black students from
the Linmoor zone to an all-black school, it is apparent that the
disparity between Linmoor and McGuffey or Medina in 1964
would have been even greater than shown in this table following
the closing of Linden-McKinley as a junior high school.
110 But see p. 30 supra.
111 Figure shown is for 1965-66, first year reported.
112 As described above, Monroe took the most heavily blaek por
tion of the area which had been assigned to Everett prior to 1957-
58, and made optional between Everett and Linmoor from 1958-59
to 1963-64. (See text following note 60, supra.) Thus one of the
long-term effects of retaining Linden-McKinley after 1957 was to
remove a blaek area permanently from the Everett Junior High
zone. (See note 60 supra and accompanying text.) Because a por
tion of the optional area was returned to Everett, Dr. Foster noted
that the transfer had some integrative effect with respect to the
school (A. 488-500). 113
113 See note 59 supra.
81
facilities,114 drawing boundaries along racial residential
demarcation lines, and faculty assignment resulted in
deliberately segregated black and white junior high schools
throughout the east-central and northern areas of the
Columbus school district in the 1960’s. Dr. Foster reviewed
the entire history and characterized the series of actions
as being designed to contain the black population toward
the central city and to protect white students from advanc
ing black population movement to the north and northeast
(A. 499-500).
Any consideration of the 1960’s must also take into
account the lack of response of the school board to the
repeated requests from citizens’ groups during this decade
that the problems of school segregation be addressed and
solved. See pp. 35-36 supra. This1 was in marked con
trast to the inventiveness displayed by school officials in
pursuit of segregation, as described above. Cf. A. 406.
f. The 1970’s. By 1970 the period of greatest enrollment
growth in the Columbus system had peaked. Few new
schools were built after 1970 and few additions to existing
facilities were constructed (see Pl. L. Ex. 399, L. Tr.
2135-36). The massive construction and zoning programs
of the 1950’s and 1960’s had created or perpetuated racial
separation in the district; now there was much less change
of zone lines. However, on the occasions when significant
opportunities for desegregation occurred, they were re
jected. Enrollment declines began to result in the closing
114
Capacity Enrollment
School 1964* 1969** 1963-64* 1964-65** 1965-66** 1966-67** 1967-68'
Monroe 700 600 — 586 749 757 610
Linmoor 1050 1250 1106 1098 1148f 1205 1343
Champion 800 800 949 628 615 623 669
Everett 1300 1 1 0 0 1091 895 979 906 945
Indianola 950 950 895 819 915 827 890
* Pl. L. Ex. 64, L. Tr. 3882, at 25.
« Pl. L. Ex. 63, L. Tr. 3882, at 40, 73.
f Building addition in 1965.
of schools (for example, Sixth Avenue, Maryland Park,
and C'learbrook), but there were still many instances of
overcrowding at individual schools in the years immedi
ately preceding the trial. Most of these were not handled
by shifting boundaries. Bather, 'Columbus transported
entire classes of students to schools with available space,115
or housed them in leased, non-school facilities. These
practices reinforced segregation because of the manner in
which they were carried out. As we have previously
remarked (see note 21 supra), these occasions could have
resulted in considerable desegregation if classes had been
housed in schools which were predominantly o f the op
posite race (see, e.g., A. 640-41) and if, once there, the
students had been assigned to classes along with the
students at the receiving schools rather than being kept
separate. In addition, the enforced isolation of black
students within separate rooms and classes at predom
inantly white schools made “ integration,” Columbus-style,
a humiliating experience. We describe the evidence very
briefly.
Dr. Poster identified numerous instances of intact school-
to-school transportation in the late 1960’s and early 1970’s,
and he pointed out that any potential for integration was
frustrated by the failure to mix students from the sending
and receiving schools in classes (L. Tr. 3601-27). The
school system’s witness identified some instances in which
classes were transported to opposite race facilities, but
admitted that they were taught all academic subjects on a
separated basis (L. Tr. 5339-78). The result was that even
when pupils of different races were sent to the same facility,
the school district kept them in segregated classes. A
rebuttal witness for the plaintiffs described one such
example in 1973, when a predominantly black class from
South Mifflin was sent to East Linden School and kept
115 See note 47 supra.
83
entirely separated from the predominantly white student
body of the receiving school at recess and in the cafeteria
as well as during the teaching o f academic subjects (A.
701-14). Although Petitioners sought to characterize such
practices as temporary expedients (A. 612), they admitted
that the device was used for a considerable period of time
in at least one instance when it had clearly segregative
effects: From 1969-70 through 1973-74, classes were trans
ported from the predominantly black Sullivant School and
taught in separate rooms at the adjacent, predominantly
white Bellows School in the western portion of the
district.116 As Dr. Foster pointed out, a boundary change
or pairing of the two schools would have resulted in de
segregation as well as relief for overcrowding (A. 639-40).
With respect to rentals, Dr. Foster analyzed the use of
leased facilities to house students assigned to seven over
crowded, predominantly black schools from 1970 to 1975:
Kent, Sullivant, Highland, Hamilton, Cassady, South Mif
flin Elementary, and Mifflin Jr.-Sr. High School (A. 437-
69). In each instance, he identified predominantly white
schools in the district which, according to the district’s
figures, had capacity to house these students (id .). In re
sponse, the district’s witness pointed out that many of the
rental facilities were close to the schools whose overcrowd
ing they relieved, and also that some of the predominantly
white schools identified by Dr. Foster as alternate assign-
116 During the years in question, the student and faculty char
acteristics at these schools were as follows (A. 776, 781, 790, 795,
L. Tr. 3909):
Sullivant Bellows
% Black % Black
Year Students Faculty Students Faculty
1969-70 61.4 44.0 4.1 6.7
1970-71 60.1 41.7 5.5 8.3
1971-72 60.7 41.7 6.9 9.1
1972-73 65.5 39.1 9.4 8.3
1973-74 70.2 33.3 9.5 16.7
84
ments were themselves participating in intact transporta
tion of classes from other, predominantly white, schools
(A. 608-12; see A. 775-82, L. Tr. 3909). In effect, the dis
trict intentionally selected that combination of techniques
to deal with overcrowding (intact class busing, transpor
tation of children, and use of rental facilities) which re
sulted in the continuation of racial segregation.
The school board’s knowledgeable selection of segrega
tive pupil assignments was expressed, in typical fashion,
in 1975 shortly before the trial of this case, when several
new facilities were built. In 1971 the Mifflin school dis
trict, encompassing a large plot of territory in the north
east, adjacent to the Linden area, was annexed to the
Columbus district along with the East Linden, Cassady
and South Mifflin Elementary Schools and the Mifflin Jr.-
Sr. High School (A. 363). The former Mifflin Township
boundaries for these schools were maintained until 1975
(L. Tr. 762-63),117 while overcrowding in these buildings
was accommodated through the use of rented space (see A.
437-45). In 1975 construction of the new Innis Elementary
School, to the north and west of Cassady in a predom
inantly white area (see PI. L. Exs. 278, 252, L. Tr. 3897,
3898) was completed. The board was given a choice of
two options for assignment of pupils to the school, both of
which were endorsed as educationally sound by the Super-
117 The East Linden zone was just to the north of Arlington
Park; the South Mifflin zone was between Arlington Park and
Brentnell. Cassady received students from a large geographic
area to the east of all these zones (see PI. L. Ex. 277, L. Tr. 3898).
The racial composition of these schools between 1971 and 1974 was
as follows (A. 775-82, L. Tr. 3909):
Year E. Linden
% Black Students
S. Mifflin Cassady
1971-72 3.8 74.3 31.8
1972-73 6 .0 79.9 43.9
1973-74 10.7 83.4 47.9
1974-75 15.3 85.5 55.5
85
intendent and the staff (A. 234-37; L. Tr. 2314): pair
Innis and Oassady, using one school for the primary
grades and the other for grades 4-6, or establish a zone
line between them, using each as a K-6 school. The
Cassady PTA and community groups endorsed the pairing
concept to maintain integration (see A. 250) and the
Columbus system had used primary grade centers in the
past at Clearbrook, Sixth Avenue, Hudson and Colerian
(A. 319-20, 323-25, 633, L. Tr. 2885; see pp. 56 n. 65, 72-73,
76, supra). Either alternative would involve pupil trans
portation because of the distances (L. Tr. 759).
The board selected the straight zoning alternative (See
PI. L. Exs. 277, 278, L. Tr. 3898) with the result that in
1975-76, Innis was 27.3% black but Cassady was 89.3%
black (A. 776, 779, L. Tr. 3909).118 The district court found
the construction, siting and zoning of Innis “ ironic” in
light of the Board’s public posture in connection with a
1971 bond issue which raised the money for that construc
tion (Pet. App. 38-42); in the “Promises Made” document
utilized to explain the bond issue, the board promised that
New buildings will be located whenever possible to
favor integration. In such areas, school attendance
118 Petitioners seek to defend this choice on the ground that it
preserved the “neighborhood school” concept (Pet. Br. 25-26).
This claim illustrates the slippery nature of the concept and the
board’s selective use of the term to rationalize segregative decisions.
“Neighborhood” attendance zones vary widely in size, depending
on population density and the prior decisions of school authorities
with respect to siting and size of school facilities (see pp. 33-34,
43-44 supra). Grade structure can also be varied, as Columbus
claimed it did with respect to the Sixth Avenue School in order
to preserve “walk-in” availability for students (see Pet. Br. 22-
23). While it was a part of the Mifflin Township school system
and from 1971 to 1975, Cassady Elementary functioned as a
“neighborhood” school for the entire area which the board sub
divided in 1975 (see PI. L. Ex. 277, L. Tr. 3898). Whatever other
justifications for the board’s decision there might be, conformity
to the “neighborhood school” concept is simply not a plausible one
on this record.
86
boundary lines or organizational changes will be made
to improve the opportunity for schools to be integrated
without resorting to unreasonable gerrymandering.
(PL L. Ex. 49, L. Tr. 3882 [emphasis in original].) But it
was not surprising; in 1972 the school board rejected a
motion to establish a school site advisory committee (PI.
L. Ex. 44, L. T|r. 3881; A. 646-48; see pp. 36-37 supra)
and the following year it declined to seek the assistance
of the Ohio State Board of Education in achieving desegre
gation (PI. L. Ex. 45, L. Tr. 3881; A. 357-58). At the same
meeting in which the Innis-Cassady decision was reached,
the board rejected the more integrative zoning alternative
presented for the new Independence High School (A.
235-36).
g. Summary. As this rather extensive description of
the major evidence before the district court indicates,
Columbus followed a course of conduct after Brown v.
Board of Education which was consistent only in its
maintenance of segregated public schooling. Throughout
all of the time period and in every geographic area of the
district, the school board and administration maintained
racially segregated faculties and schools in spite o f requests
from the community that segregation be ended. Every
conceivable administrative or operational tool was pressed
into service in the cause of segregation; but the school
board drew a firm line against using the same techniques
to eliminate the racial isolation o f Columbus students.
There was both overall population growth and relocation of
blacks and whites within the Columbus district for most
of the period following Brown. It is difficult to determine
precisely how the Columbus school system might have
responded to these changes in a “neutral” fashion. The
history of the administration of the Columbus schools
since the founding of the district shows that virtually no
87
such “neutrality” ever prevailed. What is clear is that the
board and staff actively intervened through every means at
their command to maintain racially separate schools
wherever possible, and for however long a period possible,
in the face of this residential movement.
Based on this evidence and after evaluating all relevant
facts, the trial court found that the Columbus Board was
motivated by segregative intent in its overall operation of
the Columbus public schools (Pet. App. 61). The racially
neutral “neighborhood school” may have been the occasional
motto and the primary defense of the board at trial; how
ever, it proved only a superficial mask for an unrelenting
policy of segregation practiced in all aspects of the ad
ministration of the district {id. at 60-61).
C. Impact on Current Segregation of Schools
The district court ruled that the school system’s policy
and practices of segregation, as demonstrated by the
evidence, had a pervasive, systemwide and current impact
on the racial composition of the Columbus schools (Pet.
App. 60-61, 68, 94-95, 100, 102). This conclusion was well
supported by the record.
First, as we have summarized above, the school au
thorities in Columbus had engaged in a consistent, multi
faceted course of conduct creating, perpetuating or aggra
vating racial segregation in literally scores of schools,
from at least the early 1900’s down to the date of the trial.
Viewing that conduct as a whole, plaintiffs’ expert witness
was o f the opinion that it revealed a consistent attempt to
contain black students in largely separate schools:
Q. . . . Dr. Foster, from your examination of the
records, in particular the exhibits in the cause, the
examination of depositions, the maps and overlays, the
demographic data which you have studied, the racial
enrollments furnished by the school district, school
construction, assignment of principals to schools, the
changing of boundaries, setting of boundaries, optional
attendance areas, all of the matters in that respect that
you have examined, many of which you have testified
to here today, and I believe the second part of the
question was considering the concentrations of minor
ity population in the Columbus School District, . . .
[have] the actions and policies of the Columbus Board
o f Education contributed in any substantial way to
the maintenance of racial separation in black and
white in the Columbus School System over the years'?
A. My answer is: In my opinion they have, and I
would add to the actions, the inactions or the lack of
action.
Q. Can you describe in some general way how this
has worked with respect to the various concentrations
o f black population in the city as they expanded?
A. I think I have done this off and on in my testi
mony in treating various aspects that I made analyses
of, but in the western part of the Columbus District,
within the Highland’s area, in my opinion the blacks
in that area have been compacted and the white areas
maintained because of actions or lack of action by the
Board.
In the south portion of the Columbus District about
which I testified earlier this afternoon, my opinion is
that the actions and inactions or lack of action by the
Board definitely has kept the blacks, the black com
munity, helped to keep the black community, partic
ularly the schools is what I am referring to, northeast
of the Chesapeake Railway and the whites in isolation
to the southwest of that dividing line.
89
As the black residential areas moved south from the
center of Columbus, and north and northeast, in my
opinion actions and inactions of the Board have con
tributed in various ways to allowing whites, while that
transition was taking place, to remove themselves to
whiter schools and has generally had the effect of com
pacting the black pupils and schools as the movement
went along toward the center of the city in both
instances.
(A. 526-27.)
Second, as we have noted in the recitation of the facts,
many of the segregative actions taken over the years can be
directly shown to have had continuing effects on the racial
composition of affected schools as of the time of trial (see,
e.g., pp. 31-32, 48, 53, 55, 71, 73, 79-80 supra; see also,
Pet. App. 68).
Third, there was substantial agreement among the wit
nesses on both sides that school site selection and atten
dance zoning have a considerable impact on the residential
composition of a school district; as one witness said, when
the boundary has been determined, “ [t]hat would then be
come the—the school neighborhood, the school community”
(A. 323). I f some schools are constructed or zoned to be
predominantly black while other schools are constructed
or zoned to be predominantly white, residential movement
is likely to be prompted (see A. 240-41). The Columbus
system also purchased school sites for future use well in
advance of residential development, irrespective of the
commonly known existence of discrimination against black
persons seeking to buy or rent housing in such areas— and
even though the “neighborhood school” policy meant that
schools in such areas would be racially isolated (A. 197-
202, 250-51, 562, 602; see A. 243-47). The impact of school
construction and zoning was not limited to the existing
90
population; as plaintiffs’ expert witnesses testified, persons
relocating to an area for the first time use school boundaries
as defining points for neighborhoods, and consider predom
inantly black schools as indicators of areas to be avoided
(A. 294-96, 310-11, 328-19, 341-42, 346, 255-56). As the
district court stated (Pet. App. 58):
The Court has received considerable evidence that the
nature of the schools in an important consideration in
real estate transactions, and the Court finds that the
defendants were aware of this fact. The defendants
argue, and the Court finds, that the school authorities
do not control the housing segregation in Columbus,
but the Court also finds that the actions of the school
authorities have had a significant impact upon the
housing patterns. The interaction of housing and the
schools operates to promote segregation in each. It
■is not now possible to isolate these factors and draw
a picture of what the Columbus schools or housing
would have looked like today without the other’s in
fluence. I do not believe that such an attempt is
required, (emphasis in original.)
Petitioners attack this finding of the district court by
challenging the probative value of one witness’ testimony
(Pet. Br. 16-17, 76-77)119 and misrepresenting another’s
(Pet. Br. 15-16, 76). Plaintiffs’ claims that school system
segregative practices had an impact upon residential pat
terns did not rest solely on the testimony of Mr. Sloane
(■compare Pet. Br. 16, 76). Moreover, Petitioners’ sug-
ii9 questions 0f a -witness’ credibility and the probative
value of his testimony are matters for the trial court. Petitioners
failed to overturn the district court’s finding in the Court of
Appeals and apparently now seek to upset it before this Court
by arguing about credibility and qualifications. Surely, if the
“two-court” rule has any meaning, it is applicable here. See
note 3 supra.
91
gestion that Mr. Sloane’s views were inconsistent with
those of another witness for plaintiffs (Pet. Br. 76) rests
npon a misrepresentation of Dr. Taenber’s testimony. Peti
tioners’ counsel interrogated Dr. Taeuber on cross-examina
tion about the causes of racial residential segregation (A.
300-07)120 and referred to a law review article written by
the witness. Counsel for Petitioners asked numerous ques
tions about a listing of discriminatory housing practices
contained in the article, but Dr. Taeuber never stated that
the list included “all o f the discriminatory practices he con
sidered responsible for residential segregation” (Pet. Br.
16). Indeed, in response to an inquiry which is as close as
counsel ever came to asking whether the listing was inclu
sive in that sense, Dr. Taeuber stated:
Unity, I intended to refer not primarily to any focus on
residential segregation, but the comm,on linkage be
tween the economic discrimination and housing dis
crimination and educational discrimination, labor
market discrimination, social discrimination.
(A. 300) (emphasis supplied.) At trial, although not in the
Brief, counsel for Petitioners responded, “ that’s what I
meant to say, too” (id.).
The article about which Dr. Taeuber was questioned did
include a discussion of the contribution to residential
segregation made by segregative school system actions and
decisions, as counsel for plaintiffs showed on Dr. Taeuber’s
redirect examination; Dr. Taeuber’s views were the same
as Mr. Sloane’s (A. 310-11). Petitioners also do not ad
dress the testimony of Dr. Green (A. 355), reporting
120 In his very first response on this subject, Dr. Taeuber substi
tuted “racial discrimination” for “ discrimination in housing” as
one among the “three general categories of eauses” of residential
segregation (A. 300).
92
research which supports the conclusions of Dr. Taeuber
and Mr. Sloane. Nor did they introduce any evidence of
their own on the subject.121
Furthermore, this Court recognized the relationship
between school and housing segregation in Swann v.
Charlotte-MecMenburg Bd. of Educ., 402 U.S. 1, 20-21
(1971), and refused to excuse school authorities who are
found to have engaged in intentional segregation from the
obligation of “actual desegregation” even though residential
patterns may require the use of pairing or pupil trans
portation {compare Pet. Br. 78-79). Hence, there was ample
basis for the district court’s conclusion on this record that
acts of Columbus school officials which it found to be inten
tionally segregative influenced the development of segre
gated residential patterns.
Fourth, the Columbus school authorities practiced segre
gation in faculty assignments on a systemwide basis until
1973, when they were required by a conciliation agreement
with the Ohio Civil Rights Commission to modify that
121 In their Brief Petitioners refer to a recent article which they
claim refutes any notion that school segregation influences hous
ing patterns (Pet. Br. 77 n.41). Yet they made no effort to estab
lish this proposition before the trial court. It is simply inconceiv
able that this case is to be decided, and the carefully considered
teachings of Swann and Keyes discarded, on the basis of the
Supreme Court Review rather than the record evidence in this
case. Whatever Dr. W olf’s article says, it is hardly representative
of prevailing opinion among sociologists and demographers, see
Appendix, infra.
Nor is the board’s argument about Southmoor Junior High
School (Pet. Br. 77-78) compelling. Plaintiffs have never con
tended that school segregation is alone responsible for housing
segregation. Elimination of school segregation on a systemwide
basis (much less for a single school) thus could not be expected to
change _ long-entrenched, segregated residential patterns dramati
cally ; it would simply remove the contributing factor of school
officials’ discriminatory practices, exactly as Dr. Taeuber stated
(A. 311).
93
policy (see p. 31 supra) ; and systemwide segregation in
the assignment of school site administrative personnel
continued through the time of trial (id.). The Court of
Appeals’ observation on this score is trenchant (Pet. App.
174):
Obviously it was no “neutral” neighborhood school
concept which occasioned generations of black teachers
to be assigned almost exclusively to black schools until
the Ohio Civil Eights Commission complaint was
settled in July of 1974.
The school board’s claim that it used a neutral neighbor
hood school policy, and housing segregation unrelated to its
own actions caused the current pattern of racial imbalance
in the district was simply belied by the evidence of massive
manipulation of pupil assignment devices and racial assign
ment of staff over the years. Based on all of the evidence,
the district court came to the eminently sound conclusion
that:
. . . The evidence in this case and the factual deter
minations made earlier in this opinion support the
finding that those elementary, junior, and senior high
schools in the Columbus school district which presently
have a predominantly black student enrollment have
been substantially and directly affected by the inten
tional acts and omissions of the defendant local and
state school boards.
(Pet. App. 73) (emphasis added.)122 Reviewing the evidence
and its findings again in light of this Court’s ruling in
Dayton Bd. of Educ. v. Brinkman, supra, the court reiter
ated this conclusion:
122 See note 7 supra.
94
Systemwide liability is the law of this case pending
review by the appellate courts. 429 F. Supp. at 266.
Defendants had ample opportunity at trial to show, if
they could, that the admitted racial imbalance of the
Columbus Public Schools is the result of social
dynamics or of the acts of others for which defendants
owe no responsibility. This they did not do, 429 F.
Supp. at 260.
(Pet. App. 95.)
D. The Remedy Proceedings.
Having found systemwide liability, the trial court di
rected the board to submit a remedial plan “ to eradicate un
lawful segregation from the Columbus school system root
and branch” (Pet. App. 73), cautioning, however, that not
every school need be brought within a particular statistical
pattern, and might remain virtually one-race if “ defendant
school authorities . . . satisfy the Court that their racial
composition is not the result of present or past discrimi
natory action or omissions of defendant public officials or
their predecessors in office” (Pet. App. 75). On June 10,
1977 Petitioners filed a proposed plan (Pet. App. 2) and
hearings were scheduled to commence July 11 (Pet. App.
95 n. 1). On July 1, following this Court’s ruling in Dayton
Bd. of Educ. v. Brinkman, supra, Petitioners moved for
leave to file an amended plan, which was submitted on
July 8 pursuant to approval of the district court (Pet.
App. 96). Both these plans, as well as one submitted by
the State defendants (see note 7 supra) were the subject
of testimony and evidence at the July hearings. The trial
court also heard evidence concerning another proposal
prepared by the Board of Education staff which was not
submitted formally by the board (see Pet. App. 104-05).
95
Because the court concluded that Dayton did not require
modification of its prior systemwide liability findings (Pet.
App. 90-96),128 the various submissions were evaluated in
light of their practicality and according to the standards
enunciated by this Court in Swann, supra. The “ amended
plan” filed on July 8 by the Petitioners was designed to
alter the racial composition only of those predominantly
black schools identified by name in the district court’s liabil
ity opinion (A. 742); the plan was rejected by the court be
cause it “ falls far short of providing a reasonable means
of remedying the systemwide ills” (Pet. App. 100) and
because “ the Columbus defendants did not shoulder the
burden of showing that the amended plan’s remaining one-
race schools are not the result of present or past discrimi
natory action on their part as required by Swann, supra, 402
TJ.S. at 26. The pupil reassignment component of the July 8
amended plan, then, is constitutionally unacceptable.” (Pet.
App. 102.) The State board’s plan Avas found to be con
stitutional, although the court noted some reservations
about its feasibility for implementation (Pet. App. 106-07).
The June 10 plan submitted by Petitioners proposed the
retention of 22 heavily white schools as to which the trial
court found “ there ha[d] been no showing by defendants
that the reasons for this aspect of this plan are genuinely
non-discriminatory” (Pet. App. 105).123 124 In comparison to
the alternative staff proposal which was also placed in
evidence, the June 10 plan left potential areas of “ white
flight” from desegregation wfithin the system (see A. 214),
and it called for transportation of more pupils (Pet. App.
123 This determination is discussed in Argument III, infra.
124 Indeed, no evidence whatsoever on this subject was intro
duced by Petitioners at the remedy hearings, which consisted
largely of descriptions of the mechanics of the various plans
before the court.
96
105). The district court concluded from a comparison of
the two that “ the June 10 plan’s proposed omission of 22
identifiable- white elementary schools from the remedy is
not required by sound logistical or educational concerns.
The pupil reassignment component of the original June 10
plan is constitutionally unacceptable” (id.).
The court did not, however, order the staff-prepared
alternative plan into effect, because it “ seemingly has not
been thoroughly considered and documented by the total
planning group. Although its numerical face is satisfactory,
its feasibility is not a matter about which the Court can be
certain” (Pet. App. 107). Instead, the Petitioners were
afforded yet another opportunity to devise a plan meeting
constitutional standards (Pet. App. 111-12). Their subse
quent proposal was approved by the district court on
October 4, 1977 (Pet. App. 125-37).
Summary of Argument
As we have earlier reiterated, Petitioners controvert
both the conclusion of the courts below that they practiced
segregation throughout the Columbus school district (sys
temwide liability) and the appropriateness of the remedy
ordered to correct that constitutional violation (system-
wide desegregation). We address these broad contentions
in sequence.
I
The district court correctly concluded from the evidence
that Columbus school authorities followed a virtually un
swerving course of segregation throughout the school dis
trict, both before and after Brown v. Board of Educ., 347
U.S. 483 (1954), and the Court of Appeals properly af
firmed that judgment.
97
A. The trial court did not need, and did not rely upon,
evidentiary presumptions in reaching its judgment. Rather,
the court viewed and weighed all of the evidence presented
at the lengthy hearings, and determined that it “clearly
and convincingly” portrayed an unbroken history of inten
tionally segregative conduct by Columbus school officials
continuing through the time of trial. That evidence was
overwhelming; it was limited neither by time nor by geog
raphy.
B. The trial judge gave appropriate consideration to the
school board’s repeated claim that it had done nothing but
adhere to a racially neutral “neighborhood school” policy.
He found that the claim could not be squared with the nu
merous and substantially segregative exceptions to the
“neighborhood school” principles which were espoused by
Petitioners. He also concluded that on those occasions
when the school board did choose to adhere to what it
termed “neighborhood schools,” the clearly foreseeable and
often known or acknowledged result was racial segregation.
Furthermore, the board’s decisions were made in the con
text of an historical background of deliberate segregation.
Hence, the court concluded that the board’s knowing choice
in these circumstances could properly be considered an
element supporting an inference that the segregation was
intentional. This reasoning is sound and consistent with
Washington v. Davis, 426 U.S. 229 (1976) and Village of
Arlington Heights v. Metropolitan Housing Dev. Corp.,
429 U.S. 252 (1977), each of which involved a finding of
effect only, without any history of departure from usual
practice, or of a series of discriminatory actions, or of any
other evidentiary factors identified in Arlington Heights.
C. The judgments below are also supported by the prin
ciples enunciated in Keyes v. School Dist. No. 1, Denver,
413 U.S. 189 (1973). Although the evidence did not concern
98
every school in the system, unlike Keyes this case was not
tried in separate geographical components and there has
never been a contention that any area of the system is “ a
separate, identifiable and unrelated unit,” id. at 205. Hence,
the district court correctly proceeded from its finding of
continuous segregative conduct based upon the evidence
before it to a determination that this conduct rendered
Columbus a “ dual school system,” id. at 213. Petitioners’
contention that this case somehow involves an impermis
sibly “ retroactive” application of Keyes is devoid of any
merit; not only did Columbus do nothing after 1954 to
alleviate the results of its prior intentional segregation, but
thereafter the school system engaged in precisely the same
sort of segregative conduct which in Keyes was held to
justify an evidentiary presumption of responsibility for
all segregation in the district.
II
Having reached the conclusion that Columbus practiced
systemwide segregation, the courts below properly required
a systemwide remedy.
A. Under Green v. County School Bd. of New Kent
County, 391 U.S. 430 (1968) and companion cases; Swami
v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971);
and Keyes, supra, the courts below properly considered
the continued existence of segregated schools created by
official action to be an important indication that there was
still a dual school system. The district court correctly put
the burden on Petitioners to prove that schools which their
remedial plans did not propose to desegregate were not
affected by the segregative actions which the court had
found. Petitioners made no attempt to meet that burden
except to assert without evidentiary foundation that the
racial composition of all schools resulted only from the
99
“neighborhood school” system— a claim properly rejected
on this record.
B. The district court did not require racial balance;
rather, it rejected remedy plans proposing the continued
existence of substantial numbers of one-race schools by
faithfully applying the standards of Green and Swann.
I l l
None of the legal principles upon which the trial court
earlier relied was explicitly altered by Dayton Bd. of Educ.
v. Brinkman, 433 U.S. 406 (1977) or the cases remanded for
reconsideration in light of that decision.
A. The holding of Dayton I does not indicate any modi
fication of the judgments below because the evidence re
veals (and the courts below properly found) a dual school
system in Columbus, unless Dayton I overruled Keyes sub
silentio. But even putting the dual school system finding
to one side, plaintiffs were entitled to the relief ordered by
the district court because Petitioners failed to rebut the
prima facie case of systemwide segregation established
by plaintiffs’ affirmative evidence.
B. The evidentiary principles which support Keyes’
prima facie case construction are logical and consistent
with the Fourteenth Amendment; and they do not hold
school authorities responsible for the discriminatory acts
of others. Keyes and Dayton I should be reaffirmed and
the judgments below sustained.
0. As a matter of equity and effectiveness, the remedy in
a school desegregation case where the existence of a dual
system has been proved must go beyond mere tinkering. It
must also do more than just remove schools from the
“virtually one-race” category. This was the basis for this
Court’s recognition in Swann that the racial composition of
the system as a whole is a useful starting point, and in
100
Wright v. Council of the City of Emporia, 407 U.S. 451,
464-65 (1972) and United States v. Scotland Neck City Bd.
of Educ., 407 U.S. 484, 489-90 (1972) that district courts
may consider, among other factors, the likelihood that
plans of “desegregation” will lead to “ resegregation.” The
rigid reading of some language in Dayton I proposed by
Petitioners is inconsistent with these equitable principles.
ARGUMENT
I.
The Evidence Overwhelmingly Supports the District
Court’s Conclusion of Systemwide Constitutional Vio
lations by Columbus School Authorities.
A. Plaintiffs Proved a Pattern and Practice of Segregation by
Columbus Defendants and Their Predecessors in Office
Which Fully Justified the Trial Court’s Holding of System-
wide Liability, Irrespective of Any Evidentiary Presump-
tons Operating in Plaintiffs’ Favor.
The recitation of the facts of this case is lengthy and
complex, reflective of the multiplicity of acts and decisions
which accompany the administration of a large school sys
tem. What clearly emerges from that recitation, however,
is a pattern of deliberately segregative actions unlimited
in its scope by considerations of time, geography or peda
gogy. Before 1954, these actions were more flagrant and
notorious (for example, the outright gerrymandering of
zone lines for Pilgrim and Fair Elementary Schools and
the sequential replacement of entire school faculties),
though violative of state law. In the decades which fol
lowed Brown, zone lines may have been drawn in a less
irregular fashion, but segregation was consistently en
trenched through devices such as optional and discontigu
ous attendance areas, construction of new facilities and
101
additions to existing schools, and continuation of the pat
tern of faculty and administrative staff assignments which
marked schools as “black” or “white.” The district court
appreciated the significance of the long chain of events re
vealed by the p roof; it judged the evidence as a whole, and
concluded that it “ clearly and convincingly weighs in favor
of the plaintiffs” (Pet. App. 2).
Petitioners’ attack upon the basic conclusion of the trial
judge (which was affirmed by the Court of Appeals)—that
there was systemwide segregation in Columbus—is almost
a pathetic one. Primarily, Petitioners argue that the courts
below found, and could only have found, “ remote and iso
lated” constitutional violations (e.g., Pet. Br. 40-41, 62-66).
This description of the lower court’s decisions simply
blinks reality. Both the district court and the Court of
Appeals were confronted with the problem of organizing
their findings about the mass of evidence in a systematic,
lucid fashion. The district judge chose to separate events
occurring before and after 1954, and for the latter period
to describe the evidence largely according to functional
areas of school system administration which plaintiffs
claimed had been carried out in a segregative fashion, indi
cating broadly those areas as to which the court felt the
proof was significant and those in which it was not. (See
note 36 supra.) To avoid an unduly lengthy and detailed
opinion, the district court also chose merely to describe
examples, rather than every occurrence, of segregative ac
tivity by the school board and school employees (see pp.
28-29 supra). Its ultimate findings related to the inten
tionally segregative administration of the entire system
(Pet. App. 61, 73).
But any doubt about the breadth of the trial court’s hold
ing was laid to rest in its July 7, 1977 Memorandum and
Order (Pet. App. 90, 94) in which the court stated:
102
Viewing the Court’s March 8 findings in their totality,
this case does not rest on three specific violations, or
eleven, or any other specific number. It concerns a
school board which since 1954 has by its official acts
intentionally aggravated, rather than alleviated, the
racial imbalance of the public schools it administers,
(emphasis supplied.)
Incredibly, Petitioners continue to insist that the “ find
ings” of the district court do not go beyond the schools
identified by name in its March 8, 1977 opinion.125 This
claim disregards the explicit language of the district court,
and it is ludicrous in the light of the extensive record sup
porting the ultimate conclusions of the trial judge. The
circumstance that the district court’s opinion was not as
literally exhaustive as the recitation of facts, supra, or that
the Court of Appeals chose to rely heavily on the district
court’s opinion after finding it to be supported by the rec
ord, should not distract attention from the adequacy of the
evidence to sustain the judgments in this case.
We emphasize again the extensive period of time over
which numerous and repeated moves toward segregation
were made by Colu'mbus school officials, and the evidence
that in whatever sector of the Columbus system black school
children appeared in significant numbers, they were sub
jected to discriminatory practices which confined them
to specific, racially identified school facilities. Plaintiffs
showed much more than simply a collection of discrete and
unrelated incidents; they demonstrated a repetitive course
of conduct by school authorities which compelled the eon-
125 See A.742, where the current (then Acting) Superintendent
of Schools described the school board’s amended plan as one de
signed “to eliminate all racially identifiable black schools cited as
instances of guilt in the [district] Court’s opinion and order.”
(emphasis supplied.)
103
elusion that systemwide segregation had been and was
being practiced.
The district court’s ruling to this effect is similar to those
of other courts which have evaluated the evidence in school
desegregation cases. For example, in Davis v. School Dist.
of Pontiac, 309 F. Supp. 734, 741 (E.D. Mich. 1970), aff’d
443 F.2d 573 (6th Cir.), cert, denied, 404 U.S. 913 (1971),
the court noted:
If this Court’s attention were directed and limited
solely to the location of the Bethune School without
being confronted by or concerned with the total pat
tern which was, at the time, developing in the construc
tion of new schools in the system, the School Board
may have succeeded in providing a persuasive argu
ment here, as it did earlier, that the location of the
Bethune School could be justified on the grounds of
the existing criteria, namely nearness, capacity and
safety of access routes. However, this Court’s con
sideration is not limited or directed solely to the loca
tion of the Bethune School, but has been broadened
to take into consideration the composition of the entire
Pontiac School System.
In affirming that ruling, the Court of Appeals agreed with
the approach taken by the lower court: “Although, as the
District Court stated, each decision considered alone might
not compel the conclusion that the Board of Education in
tended to foster segregation, taken together, they support
the conclusion that a purposeful pattern of racial discrim
ination has existed in the Pontiac school system for at
least 15 years.” 443 F.2d 573, 576 (6th Cir.), cert, denied,
404 U.S. 913 (1971). See also, e.g., Morgan v. Hennigan,
379 F. Supp. 410, 479 (D. Mass.), aff’d sub nom. Morgan
v. Kerrigan, 509 F.2d 580 (1st Cir. 1974), cert, denied, 421
U.S. 963 (1975); Oliver v. Kalamazoo Bd. of Educ., 368
104
F. Supp. 143, 174 (W.D. Mich. 1973), aff’d sub nom. Oliver
v. Michigan State Bd. of Educ., 408 F.2d 178 (6th Cir. 1974),
cert, denied, 421 TJ.S. 963 (1975).126 Although Petitioners
point to occasional actions which they claim were not seg
regative (Pet. Br. 18, 27 n.12, 78, 89 n.47) the judgment
of the courts below obviously was that these few acts did
not invalidate nor offset the conclusion of overall, system-
wide segregation.127 Petitioners ignore the point that the
courts below were not required to find, nor have plaintiffs
maintained, that every action of the Columbus school au
thorities was violative of plaintiffs’ rights.
Petitioners’ next line of attack upon the findings below
is a series of assertions that the district court was wrong
in finding segregation even with respect to the occurrences
it described in detail in its opinion (e.g., Pet. Br. 23-29,
62-66). There are several responses to these contentions.
First, Petitioners generally do not discuss the other evi
dence of occurrences similar to those detailed in the trial
judge’s opinion which reinforces the soundness of the con
clusions therein.128 Second, we again point out that the
factual findings, including the inferences to be drawn from
126 And see Swann v. Charlotte-MecMenburg Bd. of Educ., 402
U.S. 1, 21 (1971) : “ In ascertaining the existence of legally im
posed school segregation, the existence of a pattern of school con
struction and abandonment is thus a factor of great weight.” (em
phasis supplied.)
127 These incidents generally involved small numbers of black
students; while most whites in Columbus were consistently “pro
tected” from having to attend schools enrolling large numbers of
blacks, most blacks were intentionally confined to black schools
(see, e.g., pp. 46-47, 52-55 supra).
128 But see, Pet. Br. 27 n. 12 (optional zones: Franklin-Koosevelt,
“Downtown” option, Central-North and East-Linden-McKinley,
compare pp. 45-46, 57-58 supra) ; Pet. Br. 31 n. 17 (Barnett dis
contiguous area, compare pp. 67-69 supra); Pet. Br. 32 n. 17
(Arlington Park junior high students, compare pp. 54-55 supra).
105
the evidence,129 were approved by the Court of Appeals and
hence ought not be overturned here even if some members
of the Court feel that they would not have drawn exactly
the same conclusions if sitting as a trier of fact. United
States v. Commercial Credit Co., 286 IT.S. 63 (1932); Brain-
ard v. Buck, supra. Finally, Petitioners’ sporadic quarrels
over particular details represent little more than an at
tempt to relitigate the case in its entirety before this Court,
an attempt which is particularly inappropriate given Peti
tioners’ approach to this case at trial. The board made
little effort to disprove plaintiffs’ evidence of segregative
activity and its effects, instead offering unconvincing gen
eral rationalizations—-but not justifications—for cited prac
tices (see, e.g., p. 55, notes 68 and 121 supra). They
then argued that plaintiffs had failed to establish a case
for relief— again refusing to introduce proof of their
own to demonstrate that their actions did not lead to segre
gation (Pet. App. 102-03). Petitioners continue to take
that approach in their Brief, trying to create doubt about
plaintiffs’ proofs but not controverting the events. We set
out just one example of this tactic in the note.130 See also
129 We here refer to such inferences as the racial population
characteristics of an area between 1960 and 1970, based upon
census reports for those years and testimony as to “common knowl
edge” (L. Tr. 1513) about the residential location of the black
population in Columbus, compare, e.g., Pet. Br. 30 n. 15, 87. We
deal separately with Petitioners’ contentions that the courts below
improperly inferred “segregative intent” solely from their claimed
adherence to a “neighborhood school” policy or solely from evi
dence that segregation was the foreseeable impact of their deci
sions (see pp. 109-18 infra).
130 Petitioners criticize Dr. Poster’s use of census data to make
judgments about the racial composition of an area (Pet. Br. 30
n. 15). However, his conclusions were supported by other evidence
such as: the testimony of black realtors about the areas of the
city in which blacks were permitted to reside (see p. 26 supra),
the resultant school enrollments (in years after 1963, when figures
were available) (as in the case of Gladstone Elementary School
106
note 5, supra. If this case is thus to he decided on the basis
of the adequacy of plaintiffs’ proof to survive a Rule 41(b),
Fed. R. Civ. P. motion for dismissal, there can be little
doubt about the outcome.
It is also significant, we think, that the practices to which
the district court referred have been identified and recog
nized in many other school cases as segregative devices.
This judicial precedent supports the determination of the
courts below that their longstanding and multiple use in
this case was the mark of a systemwide policy of segrega
tion. For example, creation of optional areas between
schools of differing racial composition was found signifi
cant in, among other cases, United States v. Board of
School Comm’rs, 332 F. Supp. 655, 666, 668 (S.D. Ind.
1971) , aff’d 474 F.2d 81 (7th C'ir. 1973); Oliver v. Kalama
zoo Bd. of Educ., supra, 368 F. Supp. at 167; Booker v.
Special School Dist. No. 1, 351 F. Supp. 799, 804 (D. Minn.
1972) ; Bradley v. Miliken, 338 F. Supp. 582, 587-88 (E.D.
and Buckeye Junior High School, for example (see A. 778, 783,
L. Tr. 3909)), contemporaneous expressions of concern about 'segre
gation from the black community (as in the case of Gladstone and
Monroe, for example, see p. 35 supra). Significantly, Petition
ers _ have never contended (either in the district court or in
their Brief here) that Dr. Poster erred in describing the racial
character of an area at the time an optional or discontiguous zone
was created, a school constructed, or a boundary changed. Nor
have they suggested that the evidence presented by plaintiffs was
not the_ “best evidence” available as to the facts at issue, except
m one instance when they produced better evidence from records
and files within their custody and control. See note 5 supra.
Moreover, Petitioners conveniently omit to mention that in the
case of the Highland-West Broad option to which their footnote
criticism is appended (Pet. Br. 29-30), they provided absolutely
no capacity data or other educational_ justification for creation of
the option; Dr. Poster, who was qualified as an expert witness in
the areas of segregation and desegregation (L. Tr. 3383-84), con
cluded that lacking such justification the option was racial in
nature (A. 475, 478). The trial court acted quite properly in de
ciding to credit Dr. Poster’s testimony in light of all of the evi
dence.
107
Mich. 1971), appeal dismissed, 468 F.2d 902 (6th Cir.),
cert, denied, 409 U.S. 844 (1972), aff’d 484 F.2d 215 (6th
Cir. 1973) (en banc), aff’d in pertinent part, 418 U.S. 717
(1974); see also, Taylor v. Board, of Educ. of New Rochelle,
supra, 191 F. Supp. at 185 (whites allowed to transfer out
of predominantly black school though living within
“ zone” ) ; United States v. School Dist. No. 151, 286 F.
Supp. 786, 795 (N.D. 111. 1967), aff'd 404 F.2d 1125 (7th
Cir. 1968) (sam e); Spangler v. Pasadena City Bd. of
Educ., 311 F. Supp. 501, 508 (C.D. Cal. 1970) (optional or
“neutral” area maintained until 1954, then assigned to pre
dominantly white schools, cf. Pet. App. 30-31).181 Discontig
uous assignments also played roles in many of these cases,
e.g., United States v. Board of School Comm’rs, supra,
332 F. Supp. at 667-68; Spangler v. Pasadena City Bd. of
Educ., supra, 311 F. Supp. at 508; United States v. School
Dist. No. 151, supra, 286 F. Supp. at 793-94; Clemons v.
Board of Educ. of Hillsboro, 228 F.2d 853, 855, 857 (6th 131
131 Petitioners’ refrain that not every optional area created in
the system was a racial one (Pet. Br. 26-27) is beside the point.
Plaintiffs never attacked the use of optional areas, discontiguous
zones, or any other method of school system administration as
per se discriminatory. As we recognize in the statement of facts,
supra, and as this Court itself recognized in Swann, e.g., 402 U.S.
at 2 0 , school officials must take into account a wide variety of
circumstances and employ many different techniques in operating
the system. All that is proscribed by the Constitution is the use
of devices or techniques for the purpose of segregating. The
optional and discontiguous zones which plaintiffs demonstrated to
have racial implications were instances in which no educational
justification for their use could be proved.
The board’s general defense that it was a growing system and
had problems of overcrowding eertainly could not justify deci
sions to solve those problems in a racially segregative way. Sec
United States v. Board of School Comm’rs, supra, 332 F. Supp.
at 666-67; Spangler v. Pasadena City Bd. of Educ., supra, 311
F. Supp. at 518-19; NAACP v. Lansing Bd. of Educ., 429 F.
Supp. 583, 593 (W.D. Mich. 1976), aff’d 559 F. 2d 1042 ( 6th
Cir. 1977), cert, denied, 434 U.S. 1065 (1978) (all “growing”
systems with “capacity” problems).
108
Cir. 1956). The construction of small schools which served
limited, one-race areas or large facilities which “ contained”
increasing student populations of one race have been noted,
in, e.g., Bradley v. Milliken, supra, 338 F. Supp. at 589;
United States v. Board of School Comm’rs, supra, 332 F.
Supp. at 667; Booker v. Special School Dist. No. 1, supra,
351 F., Supp. at 803-04; Davis v. School Dist. of Pontiac,
supra, 309 F. Supp. at 741. Selective or inconsistent appli
cation of the “neighborhood school” policy on a racial basis
signified intentional segregation to the courts in Morgan v.
Hennigan, supra, 379 F. Supp. at 473; United States v.
Board of School Comm’rs, supra, 332 F. Supp. at 665;
Oliver v. Kalamazoo Bd. of Educ., supra, 368 F. Supp. at
164-66; and Kelly v. Guinn, 456 F.2d 100; 108 (9th Cir.
1972), cert, denied, 413 TJ.S. 919 (1973), among others.
Finally, continued faculty segregation has been identified
as a telling characteristic of systemwide discrimination in
many, many rulings. E.g., Kelly v. Guinn, supra, 456 F.2d
at 107; Davis v. School Dist. of Pontiac, supra, 309 F. Supp.
at 742-45; Morgan v. Hennigan, supra, 379 F. Supp. at
456-61.
The record in this case, then, shows both a longstanding
pattern and practice of intentionally segregative acts by
Columbus school authorities and also the repeated use of
a substantial variety of discriminatory techniques each of
which has received frequent Judicial recognition and identi
fication as one of the tools of segregation. It was more than
adequate to justify the district court’s finding of system-
wide violation.
109
B. The District Court’s Consideration of Petitioners’ Claimed
Adherence to a “ Neighborhood School” Policy, and of the
Degree to Which Segregative Results of Their Actions
Were Known or Foreseeable, in Reaching the Ultimate
Conclusion That There Was a Systemwide Policy of Seg
regation in Columbus Was Not Inconsistent With W ash
ington v. Davis or Arlington Heights.
As an independent ground for reversing the judgments
below, Petitioners argue that in this case, the district court
found intentional segregation “ solely from evidence that
the disproportionate impact of official action was foresee
able” (Pet. Br. 81) and solely “ from adherence to a neigh
borhood school policy in a district with racially imbalanced
residential patterns” (Pet. Br. 91). Such holdings, accord
ing to Petitioners, are inconsistent with Washington v.
Davis, 426 U.S. 229 (1976) and Village of Arlington
Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252
(1977) because they were the equivalent of dispensing with
the constitutional requirement of intentional discrimination.
The situation in this case is far different from that in
Washington v. Davis1M or Arlington Heights.133 No judg- 182
182 Washington v. Davis reached this Court as a challenge to a
single action by the defendant police department: “ The validity
of Test 21 was the sole issue before the court on the motions for
summary judgment.” 426 U.S. at 235. The test had a dispropor
tionate racial impact, which the trial court accepted as one indica
tion that its adoption and use was unconstitutionally discrimina
tory ; however, the court found this factor to be outweighed by other
circumstances. Id. at 235-36. On appeal, the “disproportionate
impact, standing alone and without regard to whether it indicated
a discriminatory purpose, was held sufficient to establish a consti
tutional violation [unless analogous Title VII standards were met]
Id. at 237. This Court reversed, emphasizing that “a law or other
official act, without regard to whether it reflects a racially discrim
inatory purpose, is [not] unconstitutional solely because it has a
racially disproportionate impact.” Id. at 238 (emphasis in original).
133 Arlington Heights similarly involved a single act, in this case
the denial of an application for rezoning of a specific parcel. 429
U.S. at 255-57. After a trial, the district court specifically held that
110
ment was reached solely based on disproportionate impact.
The district court found every kind of circumstance de
scribed by Mr. Justice Powell’s opinion in Arlington
Heights: * 184 a pattern unexplainable on grounds other than
the Village Board members “were not motivated by racial discrim
ination” and that there was no racially discriminatory effect from
the denial. Id. at 259. The Court of Appeals found such an effect,
however, and ruled that because of that effect, the decision could be
upheld only if the non-racial justifications for the action amounted
to compelling state interests. Id. at 260. Since the Court of Ap
peals also specifically ratified the trial court’s finding that the deci
sion was not racially motivated, this Court reversed under Wash
ington v. Davis, supra:
In sum, the evidence does not warrant overturning the con
current findings of both courts below. Respondents simply
failed to carry their burden of proving that discriminatory
purpose was a motivating factor in the Village’s decision. This
conclusion ends the constitutional inquiry. The Court of Ap
peals’ further finding that the Village’s decision carried a dis
criminatory “ultimate effect” is without independent constitu
tional significance.
Id. at 270-71 (footnote omitted).
184 In his opinion for the Court, Mr. Justice Powell offered several
examples of evidence which would be probative of discriminatory
intent:
The impact of the official action — whether it “bears more
heavily on one race than another,” [citation omitted] may pro
vide an important starting point. Sometimes a clear pattern,
unexplainable on grounds other than race, emerges from the
effect of the state action even when the governing legislation
appears neutral on its face, [citations omitted] The evidentiary
inquiry is then relatively easy. But such cases are rare. Absent
a pattern as stark as that in Gomillion or YirJc Wo, impact
alone is not determinative, and the Court must look to other
evidence.
The historical background of the decision is one evidentiary
source, particularly if it reveals a series of official actions taken
for invidious purposes, [citations omitted] The specific se
quence of events leading up to the challenged decision also may
shed some light on the decisionmaker’s purposes, [citations
omitted] . . . Departures from the normal procedural sequence
also might afford evidence that improper purposes are playing
a role. Substantive departures too may be relevant, partic
ularly if the factors usually considered important by the de-
I l l
race (e.g., “ The Court can discern no other explanation
than a racial one . . ” [Pet. App. 34]); a series of official
actions taken for invidious purposes (e.g., “ the Court dis
cussed in detail a variety of post-1954 Board decisions and
practices . . [Pet. App. 94]); departures from normal
procedures (e.g., “ Students living on three streets (Wilson,
Bellview and Eagle Avenues) located near the center of the
Heimandale attendance area were assigned to attend For-
nof instead of Heimandale” [Pet. App. 35]) ; and substan
tive departures (e.g., “ The Court concludes that the
Highland-West Broad optional zone was not created to
alleviate overcrowding or because of a geographic barrier”
[Pet. App. 30]).
In addition, the “foreseeable consequences” test approved
by the Courts of Appeals is not a “ sole effects” standard,
no matter how many times Petitioners repeat that char
acterization; nor has the test been expressly disapproved
in any opinion of this Court. Petitioners admit that the
requirement of knowledge or foreseeability is something
beyond mere effect (Pet. Br. 84); and they recognize that
Washington v. Davis specifically disallowed a finding of
unconstitutionality based solely on effect (id.). They in
sist, however, that the “ foreseeable consequences” test has
been rejected by this Court in Austin Independent School
Dist. v. United States, 429 TJ.S. 990 (1976) and Arlington
Heights, supra. Austin was a per curiam remand for re
consideration in light of Washington v. Davis; the opinion
of the Court does not speak to the “ foreseeable conse
quences” test. And Petitioners fail to note (Pet. Br. 85)
cisionmaker strongly favor a decision contrary to the one
reached.
Id. at 267-68 (emphasis supplied; footnotes omitted). See also,
Washington v. Davis, supra, 426 U.S. at 253-54 (Stevens, J., con
curring) ; Dayton Bd. of Educ. v. Brinkman, supra, 433 U.S. at 421
(Stevens, J., concurring).
112
that Mr. Justice Powell’s concurring opinion (joined by
the Chief Justice and Mr. Justice Rehnquist) explicitly
expressed concern only about sole reliance on the test in
circumstances where there was no other evidence of dis
crimination :
Although in an earlier stage in this case other findings
were made which evidenced segregative intent, see,
e.g., United States v. Texas Education Agency, 467
F.2d 848, 864-869 (CA5 1972) (actions by school au
thorities contributing to segregation of Mexican-
American students), the opinion below apparently gave
controlling effect to the use of neighborhood schools:
429 U.S. at 991 n.l. Petitioners also seek support from
Arlington Heights (Pet. Br. 85-86); but as noted, that case
held only that where there was an explicit finding of no
racial motivation, discriminatory effect alone would not
justify a finding of unconstitutional discrimination. We
believe that the evidence produced in this case fits within
the categories identified in Mr. Justice Powell’s opinion
(see note 121 supra); to the extent that it does not, we
observe that the opinion did not “ purpor[t] to be exhaus
tive [in listing] subjects of proper inquiry in determining
whether racially discriminatory intent existed.” 429 U.S.
at 268. Compare Pet. Br. 85.
Further, as we have previously emphasized, the judg
ments of the lower courts in this case do not rest upon a
single segregative occurrence or a few isolated incidents;
the proof showed a continuous, repeated pattern of such
actions. Unquestionably, a finding of intentional discrimi
nation may more easily be made when the court is con
fronted with a consistent series of decisions with predict
able and avoidable segregative effects than from a single
113
such event. For example, in Keyes v. School Dist. No. 1,
303 F. Snpp. 279, 286; 303 F. Supp. 289, 294 (D. Colo.
1969), the district court said:
We do not find that the purpose here included mali
cious or odious intent. At the same time, it was action
which was taken with knowledge of the consequences,
and the consequences were not merely possible, they
were substantially certain. Under such conditions, the
action is unquestionably wilful.
Between 1960 and 1969 the Board’s policies with re
spect to these northeast Denver schools show an un
deviating purpose to isolate Negro students. . . .
These findings were relied upon in this Court’s opinion,
Keyes v. School Dist. No. 1, supra, 413 U.8. at 199, and that
opinion in turn was favorably cited in Washington v. Davis,
supra, 426 U.S. at 240, 243-44. See also, Arlington Heights,
supra, 429 U.S. at 267.
Petitioners’ claim that the teaching of Washington v.
Davis and Arlington Heights was violated in this case rests
ultimately on their assertions (Pet. Br. 87-88) that the de
cisions found segregative by the courts below “had no
racial significance” and met “ neutral criteria” {id. at 88).
Petitioners simply fail to provide convincing argument,
however, that the district court’s contrary conclusions were
clearly erroneous, or that (for example) their own capac
ity-enrollment figures, upon which the court relied and
which showed no educational justification for optional zones
and discontiguous areas between schools of differing racial
composition, were wrong. Contrary to their assertions, the
finding of systemwide segregation made by the district
court and affirmed by the Court of Appeals does not rest
“ solely” on disproportionate impact; rather, the probative
114
value of each incident was confirmed and magnified by the
systematic pattern which unfolded.136
Petitioners’ “neighborhood school” argument rests upon
no sounder footing. The district judge declared that the
school system’s determination to make racially homogene
ous “neighborhoods”—which the system would itself define
by setting boundaries (A. 323)136—the basis for pupil as
signments, despite its knowledge that segregation would
result, “ is one factor among many others which may be
considered by a court in determining whether an inference
of segregative intent should be drawn” (Pet. App. 49)
(emphasis supplied). There is a quantum leap between that
statement and the assertion of Petitioners that “ under the
186 Indeed, the reason why a number of the Courts of Appeals
have specifically recognized, in school desegregation eases, that
showing a pattern of foreseeably segregative consequences of board
actions establishes part of plaintiffs’ prima facie case of segre
gative intent, is that such cases almost invariably involve a long
chain of segregative events affecting the racial composition of
schools. Moreover, the “foreseeable consequences” test is designed
only to assist in determining whether or not segregative intent
was a motivating factor in such a pattern of segregative conduct,
and usually plays no part even in shifting the burden of going
forward with evidence on the issue of segregative intent (see note
141 infra). Under the “foreseeable consequences” test for deter
mining segregative intent, school authorities are given every oppor
tunity to explain by proof that such a pattern of segregative con
duct is, in fact, motivated by nonracial factors. E.g., Oliver v.
Michigan State Bd. of Educ., 508 F.2d 178 (6 th Cir. 1974), cert,
denied, 421 U.S. 963 (1975) ; Arthur v. Nyquist, 573 F.2d 134 (2d
Cir. 1978), cert, denied, 47 U.S.L.W. 3224 (Oct. 2, 1978); United
States v. School Dist. of Omaha, 565 F.2d 127 (8 th Cir.) (en hanc),
cert, denied, 434 U.S. 1064 (1977). In marked contrast, the
Seventh Circuit in Arlington Heights and the D.C. Circuit in
Washington v. Davis required the defendants to demonstrate that
compelling governmental interests or business necessity, respec
tively, justified a single act with a disproportionate racial impact
—without regard to whether or not race was a motivating factor
in the decision. See notes 132 and 133 supra.
136 See note 162 infra and pp. 43-44, 89-92 supra.
115
foreseeable effect test, the mere continuance of the neigh
borhood school policy in Columbus . . . became the basis
of a finding of unlawful segregation by the school board”
(Pet. Br. 91) (emphasis supplied). The difference is more
than merely a semantic one, as indicated by the Court’s
discussion in Arlington Heights, supra, indicating that
impact alone, while it could not be determinative, was pro
bative, especially where supported by other evidence. See
note 134 supra.137
Petitioners also gloss over the differences between what
the record in this case reveals to have been their practice,
on the one hand, and the concerns for the educational values
of true “neighborhood schools” which are reflected in the
opinions of this Court and of individual Justices, on the
other hand.138 In Swann v. Charlotte-Mecklenburg Bd. of
Educ., supra, 402 U.S. at 28, this Court recognized that:
All things being equal, with no history of discrimina
tion, it might well be desirable to assign pupils to
schools nearest their homes. But all things are not
equal in a system that has been deliberately constructed
and maintained to enforce racial segregation.
Similarly, and citing that language, the Court in Keyes
wrote (413 U.S. at 212) :
. . . we hold that the mere assertion of such a [neigh
borhood school] policy is not dispositive where, as in
this case, the school authorities have been found to
have practiced de jure segregation in a meaningful
137 See also Austin Independent School Dist. v. United States,
supra, 429 U.S. at 991 n. 1 (Powell, Rehnquist, JJ. and Burger,
C.J., concurring), objecting to the “apparently . . . controlling
effect” given the use of “neighborhood schools” by the Fifth Cir
cuit in that case.
138 The same concerns were recognized by the district judge.
See Pet. App. 55.
116
portion of the school system by techniques that indi
cate that the “neighborhood school” concept has not
been maintained free of manipulation.
(emphasis supplied.) In the very passage upon which
Petitioners rely (Pet. Br. 92), from a concurring and dis
senting opinion in Keyes, supra, Mr. Justice Powell speaks
of the worthwhile values of “Neighborhood school systems,
neutrally administered . . . . ” 413 U.S. at 246 (emphasis
supplied).
These excerpts suggest the reason why the approach of
the lower courts in this and other school desegregation
cases is a correct one, with respect both to the foreseeability
test and also to its application to the “neighborhood school”
principle. As the Sixth Circuit formulated the applicable
test in Oliver v. Michigan State Bel. of Educ., 508 F.2d 178,
182 (6th Cir. 1974), cert, denied, 421 U.S. 963 (1975):
A presumption of segregative purpose arises when
plaintiffs establish that the natural, probable and fore
seeable result of public officials’ action or inaction was
an increase or perpetuation of public school segrega
tion. This presumption becomes proof unless defen
dants affirmatively establish that their action or in
action was a consistent and resolute application of
racially neutral policies.
(See Pet. App. 48 n. 3.) Even as applied to school author
ities’ use of “ neighborhood school” assignments, this ap
proach is consistent with the subsequent decisions of this
Court in Washington v. Davis and Arlington Heights. If
the “neighborhood school” concept is not shown to have
been “neutrally administered,” then its selective use and
manipulation becomes corroborative evidence of segrega
tive intent, beyond mere effect or even foreseeability. See,
117
e.g., Morgan v. Hennigan, supra, 379 F. Supp. at 470, 473.
If, on tlie other hand, no such inconsistencies are revealed,
then any conclusion of intentional segregation must rest
on other bases. Thus, even accepting Petitioners’ conten
tion that the “ foreseeability” test is an effeets-only stan
dard, the Sixth Circuit’s version of that test is consistent
with this Court’s rulings. A fortiori, the ruling below, based
as it is not just on foreseeability but upon actual knowledge
as well as upon a persistent pattern of segregative depar
tures from “neighborhood school” principles, is proper.
This record is replete with evidence that Columbus created
wholesale exceptions to the “ neighborhood school” prin
ciples which it claimed to follow139 (see, e.g., pp. 17-18,
37-44, 54-55, 63-64, 81-82 supra). This case does not in
volve a “neutrally administered” “neighborhood school”
policy; hence, it does not raise the specific issue reserved
in both Swann, 402 U.S. at 23, and Keyes, 413 U.S. at 212,
and to which Petitioners so strenuously cling (Pet. Br. 91-
95). The district court was faced with a system which
freely abandoned “neighborhood school” postulates to
bring about segregation, and just as readily embraced them
when substantial racial mixing in the schools would not
result.140 In such circumstances, the trial judge was emi
139 It should also be noted that Columbus has never sought to
use the “neighborhood school” system sanctioned by 20 U.S.C.
§1701 (see Pet. Br. 92)— assignment of all students to the closest
school facility. Compare Ellis v. Board of Public Instruction, 423
F.2d 203 (5th Cir. 1970). Instead, like most districts, it has pre
ferred to retain discretion to make other assignments so as to take
into account a multiplicity of factors, including special programs,
safety hazards, and the like (see pp. 32-34 supra)— and then it
has exercised that discretion so as to entrench and exacerbate
segregation.
140 Another district court which made like findings in a school
desegregation action concluded that the “neighborhood school”
claim was “meaningless.” United States v. Board of School
Comm’rs, supra, 332 F. Supp. at 670 n. 71.
118
nently justified under this Court’s prior rulings in con
sidering the deliberate manipulation of pupil assignment,
carried on behind a “neighborhood school” facade, as a
factor relevant to the ultimate determination of an inten
tional segregation policy.
C. The Systemwide Violation Finding Also Is Consistent With
the Procedures and Evidentiary Presumption Established
by This Court in K eyes.
We have argued above that the proof in this case fully
justified a finding of systemwide intentional segregation
by the district judge without the use of any evidentiary
presumptions, since it was so extensive in terms both of
time and geography.141 As this Court stated in Keyes, its
earlier rulings “never suggested that plaintiffs in school
desegregation cases must hear the burden of proving the
elements of de jure segregation as to each and every school
or each and every student within the school system.” 413
U.S. at 200. Keyes establishes the correct use of presump
tions in a school case, and we show below that the result
reached here is precisely that which is authorized under
the procedure enunciated in that ruling.
Preliminarily, we note that Keyes confirms the pro
priety of the district court’s action. The proof of segre
gation in that case (as found by the trial court) concerned
141 While the Sixth Circuit’s standard for determining whether
to infer intent has been stated as a presumption, Oliver v. Michigan
State Bd. of Educ., supra, the terminology is without significance
in most school desegregation cases, including this one. Plaintiffs
here affirmatively presented evidence to demonstrate the absence
of a “neutrally administered” “neighborhood school” system in
Columbus; they did not rely upon absence of contrary evidence
from the board, or upon any expected failure of the board to
come forward with evidence. Hence, the issue was joined without
any reliance on presumptions and the district court’s function was
simply to determine what the preponderance of the evidence intro
duced by the parties showed.
119
schools in the Park Hill area of Denver, not every school
in the system. In the instant proceeding, proof of segre
gative faculty and administrative assignments was system-
wide ; proof of manipulation of pupil assignment devices
for segregative purposes was not limited to any particular
geographic sector(s) of the district, hut as in Keyes not
every school in the system was covered in detail.142 In
these circumstances, Keyes teaches that absent a viable
claim “ that a finding of state-imposed segregation can he
viewed in isolation from the rest of the district,” 413 U.S.
at 200, “ there exists a predicate for a finding of the exis
tence of a dual school system.” Id. at 201, As the Court
explained in that case, the intentional assignment of mi
nority students to designated schools has an obvious, and
often far-reaching, impact on the composition of other
facilities in a system. Id. at 201-03. The proposition is
particularly evident in a case such as the present one,
in which school authorities through a variety of techniques
moved to confine Negro children to largely separate schools
in every area of the district. Absent “a determination
[that “ the geographical structure of, or the natural boun
daries within” the Columbus “district may have the effect
of dividing the district into separate, identifiable and un
related units” ], proof of state-imposed segregation in a
substantial portion of the district will suffice to support a
finding by the trial court of the existence of a dual system.”
Id. at 203.
In Keyes, the Court remanded with instructions to make
the factual determination respecting geographic separate-
M2 Tpere was evidence, for example, of some predominantly
minority schools situated adjacent to predominantly white schools
in addition to those about which Dr. Foster testified (e.g., PI. L.
Ex. 477, L. Tr. 3917). And the boundaries for such schools over
nearly a twenty-year period were in evidence, permitting an ap
praisal of their regularity and “neutrality” (PI. L. Exs. 261-320,
L. Tr. 3898).
120
ness, and the legal determination respecting a dual school
system, since neither question had been explicitly answered
in the trial court’s prior rulings (id. at 204-05). Here,
there has never been (nor could there be) a contention that
any of the areas in which the district judge found inten
tional segregation are “ separate, identifiable and unrelated
units.” 143 And the district court did hold that Columbus
practiced systemwide segregation (Pet. App. 73, 94-95;
see also, pp. 87-94 supra)—the legal equivalent of the
statutory dual system, see 413 U.S. at 203. That deter
mination justified the court’s Order requiring that the
board “desegregate the entire system ‘root and branch.’ ”
413 IJ.S. at 213.
Even if this were not the case, plaintiffs were also en
titled to the benefit of the evidentiary presumption eluci
dated in Keyes: that the proof of very substantial segre
gative activity at many Columbus schools which was cred
ited by the trial judge144 “ create [d] a presumption that
other segregated schooling within the system is not ad
ventitious.” 413 U.S. at 208.
[W]here an intentionally segregative policy is prac
ticed in a meaningful or significant segment of a school
system, as in this case, the school authorities cannot
be heard to argue that plaintiffs have proved only
“ isolated and individual” unlawfully segregative ac
tions. In that circumstance, it is both fair and reason
able to require that the school authorities bear the
burden of showing that their actions as to other segre
gated schools within the system were not also mo
tivated by segregative intent.
143 Cf., e.g., notes 50, 52, 101 supra.
144 See note 36 supra.
121
Id. at 208-09. Moreover, we need not speculate about
whether Petitioners could meet that burden. At the con
clusion of the liability phase of the case, the district judge
noted that while the system would be required to formulate
a plan to desegregate “ root and branch” (Pet. App. 73),
not all of the system’s school facilities would have to be
affected— or affected similarly—by an acceptable plan if
“ their racial composition is not the result of present or
past discriminatory action” by school authorities (Pet.
App. 74-75, quoting Swann v. Charlotte-Mecklenburg Bd.
of Educ., supra, 402 TT.S. at 26), facts which it was the
board’s burden to establish.145 Since the Petitioners pro
posed plans which would have left numerous virtually all-
black and virtually all-white schools (see, e.g., Pet. App.
100-01), their evidentiary burden with respect to such
schools was to make a showing virtually identical to that
which would have been required at the liability stage in
the absence of the dual system finding. The district court
explicitly held that Petitioners had utterly failed to carry
this burden (Pet. App. 102-03, 105); and it is thus clear
that the evidentiary presumption created by Keyes com
pels the same result.
Petitioners argue, however, that Keyes is inapplicable
to this case because it cannot be applied “ retroactively”
(Pet. Br. 67-74). We confess to no small amount of diffi
culty in discerning how that term is being used. It is cer
145
. . . in a system with a history of segregation the need for
remedial criteria of sufficient specificity to assure a school
authority’s compliance with its constitutional duty warrants
a presumption against schools that are substantially dispro
portionate in their racial composition. . . . [School authorities]
have the burden of showing that such school assignments are
genuinely nondiscriminatory.
402 TJ.S. at 26.
122
tainly true that the original “ enclave” of black schools in
Columbus did not, by the time of trial, enroll as substan
tial a proportion of Columbus’ black students as it had
in 1954 (see p. 19 supra). Yet the presumption of dis
crimination is strengthened by the fact that segregative
techniques utilized prior to 1954, as well as other discrim
inatory devices, were used after that time to contain black
students in black schools as the black population expanded
into other areas of the system. The case for application of
the evidentiary presumption would seem to be even
stronger here than in Keyes, since in that case the pre
sumption was held to flow backward from the Park Iiill
events of the 1960’s to the earlier segregation of core city
schools. Unlike the instant case, the segregation which
Denver claimed was adventitious existed prior to the time
of the Park Hill acts of deliberate segregation.
Petitioners’ basic thrust appears to be a contention that
since Columbus was residentially segregated at the time
of trial, none of their own segregative conduct could form
the basis for any evidentiary presumption or any finding
of segregation. But this argument would prove too much.
It would not only eliminate the possibility of using the
Keyes presumption in the Columbus case, but in all cases
(including Keyes itself). There, it was the eastward res
idential movement of blacks from the core city area into
the Park Hill area, toward and eventually across Colorado
Boulevard, which set the stage for the segregative deci
sions of the 1960’s. See 303 F. Supp. at 290. This fact
did not remove the predicate for a finding of a dual school
system, 413 U.S. at 204, for reasons which to us seem
fairly evident: lacking control over residential patterns
(though substantially affecting them), and prevented by
the Fourteenth Amendment from directly imposing segre
gation, school authorities following a policy of intentional
123
segregation may be expected consistently to respond to
shifts in racial residential patterns in ways which main
tain substantial racial separation in the schools, both dur
ing and after the residential transition of an area. (Both
Park Hill in Denver and the Linden, or the southeastern,
areas of Columbus illustrate the point well.) Against this
background, the existence of residential racial segregation
at any particular point in time no more relieves school
authorities in such a system of their obligation to dis
mantle the dual structure than did residential segregation
in Charlotte or Mobile relieve those school systems of the
duty to terminate effectively and completely their dual
school structures which had remained essentially intact
over the years after this Court struck down compulsory
segregation in Brown. Swann, supra, 402 U.S. at 14, 25-
26; Davis v. Board of School Comm’rs, 402 U.S. 33, 37
(1971).146 *
Consistently since Brown, through its decisions in Keyes
and Dayton Bd. of Educ. v. Brinkman, supra, this Court
has held to the principle that school authorities may not
escape liability for their actions which create or contribute
to a condition of segregation by asserting that ostensibly
“ neutral” factors (segregated residential patterns and
“neighborhood schools” ) would have caused the same re
sult—unless they have previously implemented an ade
quate remedy, Pasadena City Bd. of Educ. v. Spangler,
146 Indeed, if Petitioners’ argument is meritorious, then it could
be applied as well to systems whose segregation was originally re
quired by statute and has continued in unaltered form since the
1890s. Rather than a landmark in our constitutional history,
Brown would be transmuted into an empty declaration that state
actors may not directly segregate, but are free to achieve this
result by indirect means. Compare Cooper v. Aaron, 358 U.S. 1
(1958) ; North Carolina State Bd. of Educ. v. Swann, 402 U.S.
43 (1971).
124
427 U.S. 424 (1976).147 It should decline Petitioners’ invi
tation to depart from that principle here.
II.
The District Court Acted Correctly in Requiring a
Comprehensive, Systemwide Desegregation Plan Which
Promised to “ Achieve The Greatest Possible Degree Of
Actual Desegregation, Taking Into Account The Prac
ticalities Of The Situation.” 148
Once having concluded that the Petitioners’ constitu
tional violations were systemwide in nature and scope, the
trial judge proceeded in the remedy phase of the litigation
on the same basis as if Columbus had been a statutory
dual system. Since this approach was not barred by Dayton
Bel. of Educ. v. Brinkman, supra (see Argument III be
low), this was unquestionably correct. Keyes v. School
Dist. No. 1, supra, 413 U.S. at 213.
A. There Was No Error in Putting the Burden on Petitioners
to Demonstrate That the Racial Composition of Schools
Omitted From Their Proposed Remedial Plans Was Un
affected by Their Constitutional Violations.
Where there has been a finding of systemwide segrega
tion, this Court’s decisions attach critical significance, in
weighing proposed remedies, to the extent of actual de
segregation which results. Thus in Green v. County School
Bd. of New Kent County, 391 U.S. 430 (1968), the Court
rejected a claim that prior dualism was eliminated by a
147 See also, South Park Independent School Dist. v. United
States, 47 U.S.L.W. 3385 (December 4, 1978) (Rehnquist and
Powell, JJ., dissenting from denial of certiorari and relying upon
implementation of remedies originally approved as adequate by
lower courts).
148 Davis v. Board of School Comm’rs, supra, 402 U.S. at 37.
125
pupil assignment scheme which depended upon individual
choice, and which resulted in a “ ‘white’ school and a
‘Negro’ school” {id. at 442). See also, Raney v. Board of
Educ. of Gould, 391 U.S. 443 (1968); Monroe v. Board of
Comm’rs of Jackson, 391 U.S. 450 (1968). Three years
later, in Swann, supra, the Court emphasized that in urban
school systems,
. . . with a history of segregation the need for re
medial criteria of sufficient specificity to assure a
school authority’s compliance with its constitutional
duty warrants a presumption against schools that are
substantially disproportionate in their racial compo
sition.
402 U.S. at 26. For purposes of remedying the constitu
tional violation of intentional pupil segregation, this Court
said, “ an assignment plan is not acceptable simply because
it appears to be neutral.” Id. at 28.
The trial judge in this case was faithful to the precepts
embodied in these rulings. Although he had found system-
wide segregation in 1954 (Pet. App. 10-11)149 * * * * * * * * * and continu
149 Despite the eonclusory treatment of the pre-1954 period in
their brief (Pet. Br. 39, 67-70), Petitioners cannot simply wish
away either the conduct of their predecessors in office or its legal
significance. See pp. 5-6, 19-22 supra. From May 17, 1954 on
ward, Petitioners’ legal obligation was to undo the intentional
segregation to which they had contributed. Green, supra, 391
U.S. at 437-38; Swann, supra, 402 U.S. at 15. Since Petitioners
have never acknowledged the history of official, intentional segre
gation in the Columbus public school system, it is hardly sur
prising that they have never affirmatively undertaken to perform
the obligation which became theirs once Brown was decided. Their
“ free choice” plan adopted in 1973 was not designed to satisfy that
responsibility and has not achieved results which would pass
muster under Green. See tent infra. Hence, the continuing one-
race character of schools established as “black” and “white” facil
ities before 1954 signifies something more than mere “foresee
able” effect. The importance of assessing Petitioners’ conduct as
126
ing thereafter up to the eve of trial (Pet. App. 35-42, 61),
the district judge nevertheless considered carefully Peti
tioners’ claim that their “ free-choice” type voluntary inte
gration plan, the “ Columbus Plan,” had real promise of
overcoming the board’s segregative actions (Pet. App. 59-
60). The lack of any significant change in the enrollments
of Columbus’ virtually all-black schools since 1973, when
the “ Columbus Plan” was adopted (see A. 776-86, L. Tr.
3909) fully supports the court’s conclusion that it “ fall[s]
far short of providing the Court a basis to find that the
defendants are solving the constitutional problems the
evidence reveals” (Pet. App. 59-60).
Just as the continuing existence of one-race schools dem
onstrated the insufficiency of the “ Columbus Plan,” * 160 so
of the time of Brown and the standards for evaluating subsequent
events are discussed in greater detail in the Brief for Respondents
in No. 78-627, Dayton Bd. of Educ. v. Brinkman, so we do not
elaborate upon them here. Since the evidence clearly established
a continuing systemwide policy of segregation, the same obliga
tion devolved upon Petitioners no matter at what particular mo
ment after 1954 their conduct is measured.
160 Petitioners graciously assert that they “are not asking this
Court to authorize a retreat from the constitutional principle that
equal educational opportunity may not be denied on the basis of
race. . . . Rather, we are asking that decisions concerning the
manner in which these goals are to be accomplished should be left
to elected local school officials and to their constituents . . .” (Pet.
Br. 51). In the context of this school desegregation action, the
statement is disingenuous at best. There are some aspects of
“equal educational opportunity” which this Court has held to be
beyond the scope of the adjudicative process. E.g., San Antonio
Independent School Dist. v. Rodriguez, 411 TJ.S. 1 (1973). How
ever, since Brown this Court has never “deviated in the slightest
degree” from the principle that denials of equal educational oppor
tunity through intentional racial segregation are remediable in
federal court, and are not left to the electorate. Swann, supra,
402 TJ.S. at 11; North Carolina State Bd. of Educ. v. Swann,
402 TJ.S. 43 (1971); see Milliken v. Bradley, supra, 418 TJ.S. at
737-38; Lee v. Nyquist, 318 P. Supp. 710 (W.D.N.Y. 1970) (three-
judge court), aff’d 402 TJ.S. 935 (1971). Respondents and the
127
it also properly formed the basis of a judgment that the
effects of Petitioners’ segregatory practices persisted in
the Columbus public schools. See Green, supra; Wright v.
Council of the City of Emporia, 407 U.S. 451, 471, 472-73
(1972) (Burger, C.J., dissenting); United States v. Scot
land Neck City Bd. of Educ., 407 U.S. 484, 489-90 (1972);
id. at 491, 492 (Burger, C.J., concurring in the result);
see also, e.g., Brewer v. School Bd. of Norfolk, 397 F.2d
37 (4th Cir. 1968); Henry v. Clarksdale Municipal Sep
arate School Dist., 409 F.2d 682 (5th Cir.), cert, denied,
396 U.S. 940 (1969); Monroe v. Board of Comm’rs, 427
F.2d 1005 (6th Cir. 1970); Clark v. Board of Educ., 426
F.2d 1035 (8th Cir. 1970), cert, denied, 402 U.S. 952 (1971).
Under Green and Swann, in order to establish otherwise,
it is the Petitioners’ obligation to show that the current
racial composition of these one-race schools is unrelated
to the prior history of unconstitutional action. Accord,
Keyes, supra, 413 U.S. at 211 and n. 17.
This burden can hardly be said to be met by mere refer
ence to testimony about discriminatory housing practices
of public agencies, testimony not tied specifically to indivi
dual schools in Columbus (see Pet. Br. 16-17). Petitioners
cannot have it both ways. I f the testimony of plaintiffs’
witnesses could not be credited by the district court to
establish the proposition that intentional school segrega
tion by public officials in Columbus was likely (based on
scholarly research and expert opinion) to have contributed
to residential segregation, then it certainly could not form
the evidentiary predicate for Petitioners’ claim that inter
vening forces had eradicated all vestiges of segregation
originally created by school authorities’ acts. On the other
class they represent know precisely what to expect after pleas
for equal educational opportunity from Petitioners. See pp. 35-
36 supra.
128
hand, there is no inconsistency between plaintiffs’ position
that school officials’ intentional segregation contributed to
the exacerbation of residential segregation and the testi
mony of plaintiffs’ expert witnesses that other forms of
discrimination—hut very little “ free choice” or economic
restriction— also contributed to racial residential segrega
tion.
Nevertheless, the board’s basic claim remains that be
cause of residential segregation, there would have been the
same one-race schools even in the absence of the board’s
intentionally discriminatory actions designed to bring
about those conditions (e.g., Pet. Br. 63). That claim was
rightly refused below, both as a ground for finding less
than systemwide liability (see Argument I. B. supra) and
as a justification for failing to require the remedial steps
necessary to bring about “actual desegregation.” Some of
the schools which Petitioners now claim “would still be
overwhelmingly black today . . . [e]ven if a single act of
discrimination on the part of school officials had never oc
curred” (Pet. Br. 63) might never even have been con
structed but for the desire to maintain segregation. Cham
pion Junior High School, for example, was intentionally
built as an elementary school to contain black students liv
ing between two (then) predominantly white facilities (see
pp. 14-15 supra). Monroe Junior High School might well
not have been constructed had Linden-McKinley Junior
High not been continued in operation for white students
living north of Hudson Street after the opening in 1957
of Linmoor Junior High School (see pp. 52-54, 77-80,
supra). Certainly the constantly changing, highly fluid
“neighborhood school” concept purportedly followed by
Petitioners (see note 29; pp. 32-44 supra) provides no
reliable guide for determining when, where and to what
size schools might have been built, or how pupils might
129
have been assigned (especially since Petitioners have al
ways transported a large number of students, see note 20
supra) had segregation not been a motivating factor.
In any event, it was Petitioners’ burden, and Petitioners
sought to meet it by attempting to establish that they “ con
sistent [ly] and resolute [ly] appli[ed] racially neutral
[neighborhood school] policies.” Oliver v. Michigan State
Bd. of Educ., supra, 508 F.2d at 182. They failed, because
the record of their actions showed their unhesitating will
ingness to give up “neighborhood schools” for sqgregated
schools. So they were rightly not excused from the obliga
tion to desegregate.
B. The District Court’s Rejection of the Board’s June 10 and
July 8 Plans Was Compelled by Green and Swann.
The preceding discussion also serves to establish the
vacuity of the Petitioners’ claim (Pet. Br. 79-81) that their
June 10 and July 8 plans were improperly rejected because
the district judge desired, as a matter of substantive prin
ciple, to mandate racial balancing of the Columbus school
system. Petitioners’ liability defense was a broad one.
Residential patterns, not school authorities’ actions, they
argued, were responsible for the segregated nature of pub
lic schooling in Columbus. Or, to the extent that their
“ remote” predecessors in office may have committed con
stitutional violations, the significance of these acts was
negated by superseding residential shifts unrelated to
them. The defense failed, because the proof showed, and
the district court found, that persistent, consistent segre
gative conduct was a dominant characteristic of the Colum
bus public school system. In his opinion, however, the
district judge indicated with precision the kind of proof
by which the board could justify the continued operation of
one-race schools in any plan it might propose:
130
System-wide statistical remedies have been imple
mented and approved by many courts, perhaps because
of a concern that all schools, parents, children and
neighborhoods should be required equally to bear the
burdens of desegregation. The fact that such plans
have been used in the past does not necessarily mean
that they are the only legal alternatives available. In
Swann, 402 U.S. at 26, the Supreme Court stated:
Where the school authority’s proposed plan for con
version from a dual to a unitary system contem
plates the continued existence of some schools that
are all or predominately of one race, they have the
burden of showing that such school assignments are
genuinely non-discriminatory. The court should
scrutinize such schools, and the burden upon the
school authorities will be to satisfy the court that
their racial composition is not the result of present
or past discriminatory action on their part.
If a limited number of racially imbalanced, predom
inantly white schools remains under a plan or plans
submitted for the Court’s approval, those schools
would receive close scrutiny under the Swann test, and
the defendant school authorities would be required to
satisfy the Court that their racial composition is not
the result of present or past discriminatory actions or
omissions o f defendant public officials or their pre
decessors in office. As is noted earlier, it would be
extremely difficult to attempt to roll back the clock at
this point and determine what the school system would
look like now had the wrongful acts and omissions
discussed earlier in this opinion never occurred.
Officials striving to satisfy the Court that a number of
white schools are to remain such because of racially
131
neutral circumstances would have a difficult, but per
haps not an impossible, task.
(Pet. App. 71-75.) Petitioners never accepted the invitation
proffered, in accordance with Swann, by the district court.
They submitted two plans: one which left most Columbus
schools, black and white, unaffected (July 8 ); and one
which left 22 virtually all-white schools unaffected (June
10).161 Yet no proof about these particular schools’ racial
composition was presented at the remedy hearings. The
feasibility of including all schools in a remedial plan was
demonstrated by the staff-prepared “ 32%” alternative and
the plan drafted by a team employed by the Ohio State
Board of Education (Pet. App. 104-07). In these circum
stances the district court could neither say that the
“greatest amount o f actual desegregation, taking into
account the practicalities of the situation” would be
achieved by the board’s plans, nor that remaining schools
predominately of one race were unaffected by the system-
wide violation which it had found. Hence the court was
compelled to reject the two board plans because of the
absence of any evidentiary justification for their results
(Pet. App. 102, 103, 105).
The district court’s use of “ 32.5% ±15% ” as a reference
point (Pet. Br. 79-81; but see Pet. App. 78-79) does not
establish that the court “ impose [d] the exact result
criticized in Swann . . .” (Pet. Br. 81). Indeed, it is only
161 The June 10 plan was not rejected, as Petitioners mislead
ingly suggest (Pet. Br. 79 n. 43) because it left “some” schools
which were racially identifiable in the sense that they fell slightly
outside the “ ± 1 5 % ” measure. These were “ 22 one-race schools”
(Pet. App. 100) : 18 elementary schools, three junior high schools
and one senior high school with enrollments projected to be more
than 90% white (see Def. R. Ex. G, R. Tr. 103, at 49-63, 83, 89-90,
93). The far more modest July 8 plan left a much greater number
of “ one-race” schools.
132
Petitioners’ tactical trial decisions which create the
potential appearance, at first blush, that this might even
arguably be the case.
In the first place, neither the district court’s initial
opinion nor the order and judgment to prepare and submit
plans even referred to a “ ± 1 5 % ” guideline (see Pet. App.
72-75, 76-77, 87-89). And, as discussed above, the court
indicated its willingness to examine proposals which left
one-race schools in accordance with the Swann principles.
Although the court used the range as one device for
categorizing the results of the plans submitted (Pet. App.
99-106), again in its July 29 opinion and order it did not
mandate a plan under which all schools would come within
the “ ± 1 5 % ” range, despite the fact that the staff’s “32%”
plan and the State Board submission indicated that such
results were feasible. Instead, the court required only
that “ [t]he plan must he capable of desegregating the
entire Columbus school system” and suggested that the
“32%” or State Board plans could he used as a “ starting
point” for preparation of an acceptable remedy (Pet. App.
111). Cf. Pate v. Dade County School Bd., 434 F.2d 1151
(5th Cir. 1970).
Moreover, the measure itself, contemplating a variance
between 17.5% and 47.5% among the schools, hardly could
be said to require exact racial balancing of enrollments
had it been mandated. In Swamn, where the district-wide
proportion was used as a starting point, school enrollments
ranged from 9% to 38% black. 402 U.S. at 9-10. There is
no indication that the district court would have been less
than receptive to a plan under which, due to practical
difficulties, some schools fell outside the ±15% range.
Nothing in the court’s orders and opinions, certainly, can
be interpreted to require that the Petitioners propose a
133
plan calling for even less variance, which they elected to
do (see A. 74-94, 109-10, 120).
The fact that, faced with the necessity of desegregating
the system, the staff: and board determined upon a plan
“ providing a [relatively] uniform racial balance . . . as a
matter of policy” is not an indication that despite explicit
opinion language to the contrary, “ it [was judicially] man
dated.” Wright v. Council of the City of Emporia, supra,
407 U.S. at 474.
The bald truth is that Petitioners spurned the district
court’s repeated offers to accept a plan leaving one-race
schools, or providing for significant variation in the racial
composition of schools, so long as adequate constitutional
justification were provided. They cannot now be heard to
contend that the trial court forced them into doing what
they did voluntarily.
III.
D ayton Board o f Education v. Brinkm an Did Not,
and Should Not Be Interpreted to, Change the Fore
going Principles; and the Interpretation of That Deci
sion Urged by Petitioners Unduly Limits the Remedial
Discretion of Federal Courts.
Petitioners’ major contention here is that the rulings be
low are inconsistent with Dayton Bd. of Educ. v. Brinkman,
supra and must be reversed on that account. Not only is
this reading of the Dayton I decision not required by the
Court’s language in that opinion, but it would emasculate
the historic equitable remedial powers of the federal courts
to vindicate constitutional rights. The burden which Peti
tioners would place on plaintiffs in school desegregation
cases is so great that continued implementation of Brown
would be virtually halted except in those instances where
134
school authorities admit to a policy of pervasive segrega
tion. That was neither the holding nor the intent of Day-
ton I.
A. D ayton I Did Not Overrule K eyes or the Other Decisions
Upon Which Plaintiffs Rely; Since the Courts Below Prop
erly Applied the Principles of Swann and K eyes to the
Proof and Findings in the Record, Noi Modification of
Their Judgments Is Indicated by Dayton I.
This is not a case like Dayton I. There the district court
had decided the liability issue on February 7, 1973, prior
to issuance of this Court’s ruling in Keyes. See 433 U.S. at
408 n.l. It had found, in this Court’s words, “ three sepa
rate although relatively isolated instances of unconstitu
tional action” which, combined with rescission of a volun
tarily adopted desegregation resolution of the school board,
it held “ cumulatively in violation of the Equal Protection
Clause.” Id. at 413. The district court neither evaluated
the existing segregation of the Dayton public schools by
taking into account the probative value of the constitu
tional violations which it found (Keyes, supra, 413 U.S. at
206) nor required a systemwide remedy. On appeal, the
Sixth Circuit did not hold the trial judge’s failure to make
additional findings of segregation clearly erroneous. It
recognized that the appellant plaintiffs relied on Keyes to
support a finding of systemwide violation, but the court
expressed no clear agreement with that argument. Instead,
it “ simply h[e]ld that the remedy ordered by the District
Court is inadequate, considering the scope o f the cumula
tive violations.” Brinkman v. GiUigan, 503 F.2d 684, 704
(6th Cir. 1974). The Court of Appeals remanded with in
structions to approve a plan which would “eliminate from
the public schools within their school system ‘all vestiges
of state-imposed school segregation.’ ” Id. at 704, quoting
Keyes, supra, 413 U.S. at 200. But the appellate panel
135
never flatly stated that state-imposed school segregation in
Dayton had been systemwide in scope and effect.162
Dayton I held improper the requirement of a systemwide
remedy in a case in which there was no sufficient “ predicate
for a finding of the existence of a dual school system,”
Keyes, supra, 413 IT.S. at 201. The opinion stressed the
importance of the case “ for the issues it raises as to the
proper allocation of functions between the district courts
and the courts of appeals within the federal judicial sys
tem,” 433 U.S. at 409, and pointedly noted the Court of
Appeals’ failure to hold the district court’s limited findings
to be clearly erroneous or inadequate, id. at 416-18. This
Court was careful not to say, however, that a systemwide
remedy in Dayton might not in fact be required to correct
constitutional violations committed by the school authori
ties. It remanded the case to the district court for new
hearings and more specific findings, based upon which an
appropriately tailored remedy could be fashioned. Id. at
419-20.
It is a paragraph at the end of the Dayton I opinion,
sketching the proceedings which this Court anticipated
would follow its remand, which is the basis of Petitioners’
claims in this case:
152 The Court of Appeals thus did not negate the possibility that
a remedy which was less than systemwide, but more comprehensive
than that originally ordered by the district court, would accord
with its view of the case. However, on a subsequent appeal, the
Sixth Circuit said that “ the meaning of [its first decision] is that
the Dayton school system has been and is guilty of de jure segre
gation practices. See Keyes v. School District No. 1 [citation
omitted].” 518 F.2d 853, 854 (6th Cir. 1975). It remanded “with
directions to modify the plan . . . so as to improve the racial bal
ance . . . in as many of the remaining racially identifiable schools
in the Dayton system as feasible.” Id. at 857. This was not the
equivalent of holding clearly erroneous the lower court’s failure to
find systemwide liability. See 433 U.S. at 418.
136
The duty of both the District Court and the Court of
Appeals in a case such as this, where mandatory segre
gation by law of the races in the schools has long since
ceased, is to first determine whether there was any
action in the conduct of the business of the school
board which was intended to, and did in fact discrimi
nate against minority pupils, teachers, or staff'. Wash
ington v. Davis, supra. All parties should be free to
introduce such additional testimony and other evidence
as the District Court may deem appropriate. I f such
violations are found, the District Court in the first
instance, subject to review by the Court of Appeals,
must determine how much incremental segregative
effect these violations had on the racial distribution of
the Dayton school population as presently constituted,
when that distribution is compared to what it would
have been in the absence of such constitutional viola
tions. The remedy must be designed to redress that
difference, and only if there has been a systemwide
impact may there be a systemwide remedy. Keyes, 413
TT.S. at 213.
433 U.S. at 420. The paragraph has spawned new theories
among the commentators,168 but its meaning is unclear. The
most critical issue is whether the “ incremental segregative
effect” inquiry described in the third sentence displaces the
Keyes holding that the district court could conclude that
there was a dual school system in Denver based on his Park
Hill findings (see pp. 118-19 supra), or whether it is mere
ly an alternative statement of that holding which em
phasizes, in light of the peculiar posture of Dayton I, the
necessity for a lower court finding of systemwide impact
in order to justify a systemwide remedy. Nothing in the
168 E.g., S. Kanner, From Denver to Dayton: The Development
of a Theory of Equal Protection Remedies, 72 Nw. TJ.L. R ev. 382
(1978).
137
remainder of the opinion indicates disapproval of Keyes
in whole or in part, see, e.g., 433 U.S. at 410. Indeed, the
very paragraph quoted above cites Keyes recognition that
the plaintiffs there would be entitled to a systemwide
remedy only if the district court concluded, based on the
legal principles enunciated by this Court, that there had
been a systemwide violation. Id. at 420. Had some part of
the Keyes jurisprudence been intended to be altered, it is
reasonable to expect that there would have been some dis
cussion of burdens of proof, for example. The absence of
such a discussion from the paragraph suggests that it was
a reformulation rather than a replacement of the Keyes
principles. See id. at 421-24 (Brennan, J., concurring in
judgment).154
Hence, we conclude, Dayton I left the vitality of the
Swann and Keyes principles intact. That being the case,
Dayton I has no independent substantive significance for
the instant matter since, as we have argued above, the
district court properly made a finding of systemwide segre
gation in accordance with the Keyes standards. See Argu
ment H.C. supra. The district court’s finding, affirmed by 164
164 Petitioners argue that these questions were settled two days
after Dayton I by the remands in School Dist. of Omaha v. United
States, 433 U.S. 667 (1977) and Brennan v. Armstrong, 433 U.S.
672 (1977). (See Pet. Br. 58.) We cannot agree. In both those
cases, the Courts of Appeals’ findings of systemwide liability had
been made before the decision in Arlington Heights, supra, and
both remands directed reconsideration in light of that decision.
In Omaha the Court of Appeals had itself created and applied,
after the trial of the case, a presumption of liability, 433 U.S. at
667-68; and in Brennan “there was ‘an unexplained hiatus between
specific findings of fact and conelusory findings of segregative in
tent’ ” resolved by the Court of Appeals’ use of a presumption of
consistency, 433 U.S. at 672. Since the findings of liability were
due to be reconsidered, this Court noted that the Dayton I inquiry
should also be addressed, and included reconsideration in light of
Dayton I in its remand directions. There is no discussion, much
less an overruling, of Keyes in the majority’s per curiam opinions.
138
the Court of Appeals, takes this case out of the Dayton I
“limited violations” category. Even if the Court had not
made the finding, under Keyes the same result was indi
cated since the Petitioners failed to show that their actions
were not the cause of segregation in the Columbus public
schools. §I.C. supra.
For these reasons, the district court was exactly right in
refusing Petitioners’ motion to reopen the proof a,nd make
new findings which would have been unnecessary under
Keyes. The trial judge reconsidered his findings in light
of Dayton I and concluded:
Viewing the Court’s March 8 findings in their totality,
this case does not rest on three specific violations, or
eleven, or any other specific number. It concerns a
school board which since 1954 has by its official acts
intentionally aggravated, rather than alleviated, the
racial imbalance of the public schools it administers.
These were not the facts of the Dayton case.
(Pet. App. 94.) This determination is unexceptionable as
an interpretation of the Dayton I, Omaha and Brennan
opinions, as we have shown. The decisions below cannot
be overturned on the basis of settled precedent; the Court
will have to accept the invitation of Petitioners and various
amici to extend Dayton 1 and to overrule Keyes, Swann
and Green. It is to the enduring justice of the principles
enunciated in these eases to which we turn.
139
B. Dayton I Should Not Be Extended to Displace the Eviden
tiary Rules Announced in K e y e s ; the Record Here Con
firms the Wisdom of K e yes ’ Prim a Facie Case Approach
to the Determination of the Nature and Extent of the
Constitutional Violation in School Desegregation Cases.
We have suggested above that the decision in Dayton I
did not displace the evidentiary and constitutional prin
ciples announced and applied by this Court in Keyes.
Bather, in our view, Dayton I gave content to the require
ment in Keyes that there be proof of “ intentionally segre
gative school board actions in a meaningful portion of a
school system” in order to establish “a prima facie case of
unlawful segregative design on the part of school authori
ties” which “ shifts to those authorities the burden of
proving that other segregated schools within the system
are not also the result of intentionally segregative actions,”
413 U.S. at 208 (emphasis supplied), and to Keyes’ holding
that proof of “a systematic program of segregation affect
ing a substantial portion of the students, schools, teachers,
and facilities within the school system” furnishes “a predi
cate for a finding of the existence of a dual school system,”
413 U.S. at 201 (emphasis supplied).
In Dayton I this Court explicitly held that . . the Dis
trict Court’s findings of constitutional violations did not,
under our cases, suffice to justify the remedy imposed.”
433 U.S. at 414 (emphasis supplied). Clearly that state
ment is a determination that the extent of the constitu
tional violations found by the district court, and neither
held clearly erroneous nor supplemented by the Court of
Appeals, did not show “ a systematic program of segrega
tion affecting a substantial portion of the students, schools,
teachers, and facilities within the school system.” As such,
the opinion furnished guidance to the district judge in the
instant matter (who reconsidered his initial findings after
140
Dayton I was handed down and found the records in the
two cases to be significantly different, Pet. App. 94) and
to other federal courts involved in school segregation liti
gation. Further, inasmuch as the Sixth Circuit had never
explicitly disapproved plaintiffs’ contention that a system-
wide remedy was required by application of the Keyes
presumption to the district court’s findings (see pp. 134-
35 and n.151 supra), Dayton I must also be read, we con
cede, to hold that the constitutional violations found by
the district court in that case did not extend to “ a meaning
ful portion” of the Dayton school system.165 This also
served to provide important guidance to federal trial and
appellate courts. We do not concede, however, that Dayton
I must by its terms or its result be read any more broadly;
and we strenuously insist that a reading of Dayton I which
displaces, rather than informs, application of Keyes flies
in the face of the explicit statements throughout the opin
ion that the judgment which the Court reversed was in
consistent with prior holdings, including Keyes. See 433
U.S. at 410, 413, 414, 420.
Petitioners (and various amici) contend that Dayton 1
should be extended to require a school-by-school, incident-
by-incident determination (and apparently on a mathe
matical basis) of the amount of desegregation which would
have resulted had each segregative step not been taken, or
each segregative decision not been made. This should be,
they say, a mandatory inquiry for federal trial courts
irrespective of Keyes’ authorization for a dual system
conclusion, and irrespective of Keyes’ prima facie case and
burden-shifting principles. Thus, although the district
165 Thus the Court was not required to announce any new rule
in order to reverse the judgment in Dayton I, nor to question the
principles of previous decisions which it explicitly said were not
complied with by the lower courts in that case.
141
court liere was faithful to the Court’s admonition in
Dayton I that “ only if there has been a systemwide impact
may there be a systemwide remedy,” 433 TJ.S. at 420 (see
Pet. App. 95), in Petitioners’ view this ease must at the
least be returned to the trial court for the formality of
entering findings using the words “ incremental segregative
effect.”
This position finds little support in the language of the
Court’s opinion, even apart from its inconsistency with the
approving citation of Swann, Wright and Keyes in that
decision. For not only in the paragraph quoted at page
136 supra, but throughout the Dayton I opinion, the Court
refers only to the effect of the “violations” :
. . . I f such violations are found, the District Court in
the first instance, subject to review by the Court of
Appeals, must determine how much incremental segre
gative effect these violations had on the racial distribu
tion of the Dayton school population, as presently
constituted, when that distribution is compared to what
it would have been in the absence of such constitutional
violations. The remedy must be designed to redress
that difference, and only if there has been a systemwide
impact may there be a systemwide remedy . . . (433
TJ.S. at 420) (emphasis supplied).
The Court did not refer to a determination of the effect
of “ each violation,” nor call for a remedy to redress “ each
impact.” It obviously recognized the futility and waste of
judicial energy which would be involved in requiring that
district courts parse even an overwhelmingly systemwide
violation into individual components which must each be
separately identified and reflected in a voluminous opinion
prior to summing them to a systemwide total. See also,
142
433 U.S. at 414, 417, 419.166 The same conclusion was drawn
by the Court of Appeals.157
The new interpretation urged by Petitioners is a con
siderably oversimplified approach to the issue of causation
discussed in Keyes and in their Brief. It assumes that
segregative acts by school officials have effects which are
limited to the short term only; that such acts’ bearing on
the attitudes and perceptions of schoolchildren and their
parents are of no concern to courts enforcing the Four
teenth Amendment; and that actions which effectively con
tinue the legacy o f past discrimination are not proscribed
unless they assume exactly the same form as earlier, overt
manifestations of unlawful conduct. In the area of school
desegregation, at least, Petitioners would ignore Justice
Frankfurter’s profound comment that the Constitution
“nullifies sophisticated, as well as simple-minded modes of
discrimination.” Lane v. Wilson, 307 U.S. 268, 275 (1939).
These points are exemplified by Petitioners’ attitude
toward their pre-1954 conduct. Although they voice, some-
156 The stay opinion of Mr. Justice Rehnquist refers to the ab
sence of “specific findings mandated by Dayton on the impact dis
crete segregative acts had on the racial composition of individual
schools within the system” (Pet. App. 212). Although Mr. Jus
tice Rehnquist was the author of the Court’s Dayton 1 opinion, the
italicized phrase does not appear in that opinion so we cannot
know whether this meaning was intended by the entire Court. Cf.
Pet. App. 213, 214. We urge the Court to reject such an inter
pretation of Dayton I and not to announce such a requirement for
school desegregation cases here or in No. 78-627, Dayton Bd. of
Educ. v. Brinkman.
157 This is the meaning, we think, of the Court of Appeals’ state
ment that
Dayton does not, however, require each of fifty separate seg
regative practices or episodes to be judged solely upon its
separate impact on the system. The question posed concerns
the impact of the total amount of segregation found—after
each separate practice or episode has added its “ increment”
to the whole . . . (Pet. App. 197) (emphasis in original.)
143
■what halfheartedly, the notion that plaintiffs’ evidence of
pre-Brown practices was “ subjective,” “ hearsay,” or un
reliable (Pet. Br. 39, 69), there is really little dispute about
the events. They are unimportant, according to Petitioners,
because their effects were short-term ones, at best:
Although intentionally discriminatory actions by
predecessor boards of education during the period
1909-1943 may have had the immediate impact of caus
ing the student bodies of five schools to be predomi
nantly black, the racial composition of those schools at
the time of trial cannot be logically attributed to the
lingering effects of school board actions which oc
curred during that period [footnote omitted] (Pet.
Br. 63).
Petitioners studiously avoid any recognition of the context
within which the segregative actions of their predecessors
took place. The creation of all-black schools, staffed with
all-black faculties, and having attendance zone boundaries
enforced for black, but not for white, pupils, represented
as certain and effective a signal to the community about
areas within which blacks were allowed and expected to
reside as the racial zoning ordinances struck down by this
Court in Buchanan v. Warley, 245 U.S. 60 (1917). See also,
City of Richmond v. Deans, 281 U.S. 704 (1930).
Whatever may have been the case, for example, before
the Champion Elementary School was located and con
structed between the 23rd Street and Eastwood facilities,
there was no possibility that anyone would mistake the
Board of Education’s message when it opened: black chil
dren are to be separately educated in accordance with the
public policy of Columbus; this separate education will
take place in the Champion Elementary School, which has
certain specified attendance zone boundaries; white parents
144
who desire that their children attend white schools should
not choose to reside within such zone. Not surprisingly,
neither the area of the Champion School—nor that of any
other school created and identified as a black school by
board acts—has ever thereafter changed significantly in its
racial composition from black to white.158 In a very real
sense, and to a very considerable degree, continued resi
dential segregation around Columbus’ officially created and
identified black schools “flowfs] from a longstanding segre
gated [school] system.,” Milliken v. Bradley, 433 U.S. 267,
283 (1977) [hereinafter cited as Milliken Z /].169’ 160
168 There are no exceptions to this statement in Columbus {see
A. 776-86; L. Tr. 3909). Although Petitioners point to a slight
decrease in the non-white population at Highland Elementary
(Pet. Br. 31), the change is insignificant, is within the range of
normal fluctuation which has characterized the school since 1964,
and does not alter Highland’s identity as a substantially blacker
school than its neighbors: West Mound (13.9% black), Burroughs
(11.1% black) and West Broad (1.9% black). {See A. 776, 782,
L. Tr. 3909.)
169 Petitioners seek comfort (Pet. Br. 64 n. 32) in the statement
of Mr. Justice Stewart, concurring in Milliken v. Bradley, supra,
418 U.S. at 756 n. 2 that the “fact of a predominantly Negro school
population in Detroit— [was] caused by unknown and perhaps
unknowable factors such as in-migration, birth rates, economic
changes, or cumulative acts of private racial fears . . . . ” How
ever, they fail to read the statement in its full context. In the
footnote, Mr. Justice Stewart was responding to a statement by
Mr. Justice Marshall that “Negro children in Detroit had been
confined by intentional acts of segregation to a growing core of
Negro schools surrounded by a receding ring of white schools.”
Id. Mr. Justice Stewart was of the view that “ [t]his conclusion
is simply not substantiated by the record presented in this case.”
We do not read the Milliken concurring opinion as a declaration
that the causes of all residential and school racial concentration
are “unknown and unknowable.” What is at issue in this case is
the responsibility of Columbus school officials for patterns of black
concentration around schools officially designated and identified as
“black” schools. Prior to 1954, the board’s acts were of the gross
est nature, involving zone lines which were rigid for black stu
dents but permeable for whites, and the replacement of white
(Footnote 159 continues and Footnote 160
is found on next page)
145
Petitioners would have the Court overrule the remedial
holdings in Swann and Keyes, supra, which squarely put
the burden on school authorities who are found to have en
gaged in segregation to demonstrate that the racial com
position of individual facilities was caused exclusively by
other factors. In Swann, the Court’s allocation of the bur
den of proof reflected the long experience of the lower
federal courts in dealing with school desegregation cases.
402 U.S. at 6, 14, 21.161 The “need for remedial criteria of
(Footnotes continued from, preceding page)
with black faculties. After Brown, the pattern was continued
somewhat more subtly, by the assignment of predominantly black
faculties only to predominantly black schools, by school construc
tion and boundary setting determinations, by the creation of op
tional attendance areas and discontiguous zones, and by a varied
series of acts such as segregative class relocation which served to
reinforce the stereotype of black students and black classes as un
desirable. This record shows an increase in black population, as
in Detroit; but it does not show that segregation was its inevitable
concomitant in the absence of intentionally discriminatory school
system decisions.
16° rp].ie central, enduring role of school system practices influenc
ing housing choices and patterns was fully explicated on this rec
ord by plaintiffs’ expert witnesses. No effective rebuttal to this
testimony was presented by Petitioners, and the validity of the
phenomenon as described in the district court’s opinion (Pet. App.
57-58) is confirmed by the facts of record. See text at nn. 155,
156, and pp. 87-94 supra; see also, note 121 supra. We do not
ask, therefore, that this Court give “legally presumptive weight”
to any abstract conception of the relationship between school and
housing segregation, or hold that “school officials are responsible
for residential patterns as a matter of law” (Pet. Br. 78). We
ask simply that courts’ inquiry into such matters on the records
made before them not be hobbled by a mechanical insistence upon
a showing at each and every school facility in the system, as if
events at each site were divorced from any relationship to either
the system as a whole or to events at other sites.
161 As long ago as 1966, Judge Wisdom wrote that “ the only
adequate redress for a previously overt system-wide policy of seg
regation directed against Negroes as a collective entity is a system-
wide policy of integration.” United States v. Jefferson County Bd.
of Educ., 372 F.2d 836, 869 (5th Cir. 1966), aff’d on rehearing
en banc, 380 F.2d 385 (5th Cir.), cert, denied sub nom. Caddo
146
sufficient specificity to assure a school authority’s compli
ance with its constitutional duty” flowed directly from the
diverse and enduring consequences of school authorities’
discriminatory actions. See, e.g., id. at 13-14, 19-21, 28.* 162
In Keyes, this Court noted that “common sense dictates
the conclusion that racially inspired school hoard actions
have an impact beyond the particular schools that are the
subjects of those actions.” 413 U.S. at 203. This fact
furnishes the predicate for a “ dual system” finding where
a substantial portion of a school district has been shown to
have been intentionally segregated, id. at 201.
Parish School Bd. v. United States, 389 U.S. 840 (1967) (emphasis
omitted). Here the policy has been covert, but the district court
found it to be system-wide. Surely the Constitution does not re
quire less of school authorities who dissembled than of those who
frankly admitted their segregationist design.
i62 rpjjjg 0ourt’s exposition in Swann, 402 U.S. at 20-21, of the
interlocking character of school and residential segregation, and
the “ far-reaching” consequences of individual school decisions, is
supported by the analysis of leading demographers and sociolo
gists, some of whom testified for plaintiffs below. See K . Taeuber,
Demographic Perspective on Housing and School Segregation, 21
W ayne L. Rev. 833 (1975) ; A. Campbell and P. Meranto, The
Metropolitan Educational Dilemma, in The Manipulated City
305, 310 (S. Gale and E. Moore, eds., 1975) ; R. Green, Northern
School Desegregation: Educational, Legal and Political Issues,
in Uses of the Sociology of Education 251 (1974); M. Wein
berg, Desegregation Research 311-13 (1970); cf. K . Vandell
and B. Harrison, Racial Transition in Neighborhoods 13 (1976)
(school factors important in housing selection); American Insti
tute of Public Opinion, The Gallup Opinion Index 13 (1976)
(opinion surveys show preference for integrated neighborhoods) ;
O. Duncan, Social Change in a Metropolitan Community 108
(1973) (same). That the great majority of people, both black
and white, do not intentionally seek out segregated housing and
schools further reinforces the conclusion in Swann that it is the
actions of public officials, such as the discriminatory practices
found below, that play the most significant role in shaping the
segregated character of communities. In the words of Swann,
such actions present courts with a “loaded game board” that calls
for affirmative remedies.
147
The Keyes Court considered and rejected the very argu
ments now urged by Petitioners:
. . . Where school authorities have been found to have
practiced purposeful segregation in part o f a school
system, they may be expected to oppose system-wide
desegregation, as did the respondents in this case, on
the ground that their purposefully segregative actions
were isolated and individual events, thus leaving plain
tiffs with the burden of proving otherwise. But at that
point where an intentionally segregative policy is prac
ticed in a meaningful or significant segment of a school
system, as in this case, the school authorities cannot
be heard to argue that plaintiffs have proved only
“ isolated and individual” unlawfully segregative ac
tions. In that circumstance, it is both fair and reason
able to require that the school authorities bear the
burden of showing that their actions as to other segre
gated schools within the system were not also moti
vated by segregative intent.
Id. at 208-09.
No adequate justification for overruling Swann and
Keyes has been presented by Petitioners or any of the
amici who support them. There is no disagreement with
the general evidentiary principles which undergird those
decisions. Compare, e.g., West Virginia State Bd. of Educ.
v. Barnette, 319 U.S. 624, 636-41 (1943). Nor is it disputed
that school authorities are in a far better position than
plaintiffs to document their own actions and to delineate
their effects. Cf. note 5 supra. Finally, Keyes has not
resulted in any manifest injustice; the ultimate outcome
of school desegregation litigation in the lower federal
courts (including the Sixth Circuit) still turns on the proof
presented, not on any reflexive application of presump
tions. See, e.g., Higgins v. Board of Educ. of Grand
148
Rapids, 508 F.2d 779 (6th Cir. 1974); Reed v. Cleveland
Bd. of Educ., 581 F.2d 570, 571 (6th Cir. 1978) (discussing
unreported remand order). Certainly this case is a poor
vehicle for such a momentous decision, since Petitioners
made no attempt whatsoever to introduce competent evi
dence which would suggest, contrary to the assumptions
underlying Swann and Keyes, that school authorities’ in
tentionally segregative acts do not contribute to the crea
tion of intractable school segregation by exacerbating
residential segregation.
The course urged by Petitioners also departs from the
consistent thrust of this Court’s decisions since Brown I
because it overemphasizes the contemporaneous, narrowly
demographic impact of school authorities’ segregative acts
to the total exclusion of other, equally destructive effects
of conduct which puts an official stamp of approval upon
racial discrimination. “ In a word, discriminatory student
assignment policies can themselves manifest and breed
other inequalities built into a dual system founded on racial
discrimination.” Milliken II, supra, 433 U.S. at 283. Un
questionably, in order to justify particular measures in
addition to nondiscriminatory pupil assignment, “it must
always be shown that the constitutional violation caused
the condition for which remedial programs are mandated.”
Id. at 286 n.17. But the breadth of the equity court’s re
medial power in school desegregation cases is tied directly
to the recognition in Brown I that “ [s]epa.rate educational
facilities are inherently unequal.” 347 U.S. at 495. See
Milliken II, supra, 433 U.S. at 282.
Brown repudiated with finality the notion that officially
enforced racial separation connotes anything other than the
inferiority of the Negro race.163 Of necessity, the federal
163 See C. Black, The Lawfulness of the Segregation Decisions,
69 Y ale L.J. 421, 424 and n. 25 (1960); B. Calm, Jurisprudence,
149
courts have had to take race into account in formulating
remedies adequate to overcome the effects of officially sanc
tioned racial discrimination. Swann, swpra, 402 U.S. at 19;
McDaniel v. Barresi, 402 U.S. 39, 41 (1971); North Carolina
State Bd. of Educ. v. Swann, supra, 402 U.S. at 45. The
goal is “ to eliminate from the public schools all vestiges
of state-imposed segregation,” Swann, 402 U.S. at 15, “ to
convert to a system without . . . ‘white’ school [s] and . . .
‘Negro’ school[s], but just schools,” Green v. County School
Bd. of New Kent County, supra, 391 U.S. at 443. This effort
has required a sensitivity— especially on the part of district
courts, see, e.g., Milliken II, 433 U.S. at 287 n.18—to atti
tudes and perceptions about the racial identity of schools,
because of the invidious signification of identifiably black
schools created and maintained through deliberate official
action. E.g., Wright v. Council of the City of Emporia,
supra, 407 U.S. at 465-66; Kem,p v. Beasley, 423 F.2d 851,
856-58 (8th Cir. 1970).164
30 N.Y.U.L. Rev. 150, 158 (1955) ; L. Poliak, Racial Discrimina
tion and Judicial Integrity: A Reply to Professor Wechsler, 108
U. Pa. L. Rev. 1, 28 (1960); United States v. Jefferson County
Bd. of Educ., supra, 372 F.2d at 872 (Wisdom, J.) ; Brunson v.
Board of Trustees, 429 F.2d 820, 826 (4th Cir. 1970) (Sobeloff,
J . ) ; cf. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441-43 (1968).
164 Petitioners’ approach is completely unresponsive to these fac
tors, which are incapable of being included in a simple calculus
which determines the effect of segregation only by counting bodies
in certain residential locations. For example, this Court has long
recognized that racial faculty assignments serve to identify schools
as “black” or “white” and make more difficult the process of de
segregation. Swann, supra, 402 U.S. at 18-19; Bradley v. School
Bd. of Richmond, 382 U.S. 103 (1965) ; Rogers v. Paul, 382 U.S.
198 (1965) ; see also, Bradley v. School Bd. of Richmond, 345
F.2d 310, 324 (4th Cir. 1956) (Sobeloff and Bell, JJ., dissenting
in part). Longstanding and pervasive faculty segregation is a
prominent feature of this case and its companion. The application
of accepted statistical methods to determine the correlation be
tween the percentage of black student enrollment and the propor
tion of black faculty at each Columbus school for which data are
150
These intangible but crucial concerns of the Fourteenth
Amendment bolster the propriety of requiring desegrega
tion “ root and branch,” Green, supra, 391 U.S. at 438;
Keyes, supra, 413 U.S. at 213. They underscore the sound
ness of the evidentiary presumptions created in Keyes, for
only by requiring an effective remedy which eradicates all
vestiges of state-imposed segregation can we be certain
that the future composition of schools will not continue to
be affected by past discrimination. See Swann, supra, 402
U.S. at 32; Pasadena City Bd. of Educ. v. Spangler, supra.
Finally, Petitioners’ argument is flawed because it fails
to take into account nonperformance of their constitutional
obligation to dismantle the dual school structure which they
created. Petitioners assert that even if they concede re
sponsibility for specific segregative acts at specific segre
gated schools, their subsequent alleged adherence to a
“ racially neutral” “neighborhood school” principle which
merely reflects residential patterns discharges any consti
tutional duty they may have (e.g., Pet. Br. 63-65). This
available in 1964, 1968 and 1972 yields the following coefficients
of correlation and determination:
1964 1968 1972
Coefficient of correlation (R) .82 .84 .88
Coefficient of determination (R2) .67 .71 .77
(Calculations prepared from PI. L. Exs. 387, 389, 391, 393, 395
and 397, L. Tr. 3910, the source of the percentages shown in PI.
L. Exs. 383 and 385, L. Tr. 3909, reprinted at A. 776-801). These
figures mean that statistically, the racial composition of the stu
dent bodies at Columbus’ schools in the years given accounted for
between two-thirds and three-quarters of the variation in faculty
racial composition. See J. Freund, Modern Elementary Statis
tics 421-22 (4th ed. 1973).
Such patterns unquestionably influenced the perception of
schools and surrounding residential areas, but Petitioners’ me
chanical approach to desegregation cases takes no account of them.
In the companion Dayton case, No. 78-627, an even more dramatic
demonstration of the phenomenon is provided by the assignment
of an all-black faculty to Dunbar High School, which in theory
served the entire city; no white students chose to attend.
151
argument was rightly rejected in Swann, 402 U.S. at 28.
Cf. Brewer v. School Bd. of Norfolk, supra. Limiting the
reach of the principles declared in Brown to the type of
classically dual systems operated by the school districts
there before the Court, as Petitioners implicitly urge, would
amount to little short of overruling that decision.
In sum, the theme of effective remedy which has char
acterized this Court’s rulings from Brown II, 349 U.S. 294
(1955) to Milliken II is right and just. Dayton 1 should be
reaffirmed as indicating that systemwide remedies may not
rest upon inadequate proof of systemwide violations. But
the Court should again reject the school-by-school, mechan
ical approach and also reaffirm the applicability of the
Keyes presumptions in school desegregation cases.
C. The Formula Advanced by Petitioners Would Deprive Fed
eral District Courts Sitting as Equity Tribunals in School
Desegregation Cases of the Discretion and Breadth of
Remedial Authority Which This Court Has Consistently
Upheld as Necessary to Effective Implementation of the
Constitutional Provisions Here at Issue.
In addition to its other defects, Petitioners’ argument
would, if adopted, strip federal district courts of the flex
ibility they need, and have traditionally had, in exercising
equity jurisdiction, to devise sensible remedies that fairly
reconcile the interests of all concerned. The insistence upon
a single mechanical rule in which the relief granted would
depend entirely on the ability of plaintiffs to establish a
tight chain of causality between adjudicated wrongdoing
and the current segregated conditions that exist at partic
ular schools is fundamentally unsound. Equitable relief
“ is not limited to the restoration of the status quo ante.
There is no power to turn back the clock. Rather, the relief
must be directed to that which is ‘necessary and appro
priate in the public interest to eliminate the effects’ ” of
152
the evil that required equity’s intervention. Ford Motor
Co. v. United States, 405 U.S. 562, 573 n.8 (1972) (empha
sis in original). It goes without saying that, if the litiga
tion is protracted and the evil takes new forms, equity has
ample power to pursue it.166 Indeed, it is the “ duty of the
court to modify . . . [a] decree so as to assure the complete
extirpation of the illegal” conduct. United States v. United
Shoe Machinery Corp., 391 U.S. 244, 251 (1968).
These principles are applicable in full force to cases in
volving constitutional rights,166 and in particular to school
desegregation cases. From the outset, the Court has re
garded considerations of practicality and flexibility as
touchstones in shaping school desegregation remedies:
In fashioning and effectuating the decrees, the courts
vnll he guided by equitable principles. Traditionally
equity has been characterized by a practical flexibility
in shaping its remedies and by a facility for adjusting
and reconciling public and private needs. These cases
call for the exercise of these traditional attributes of
equity power.
Brown v. Board of Educ., 349 U.S. 294, 300 (1955). In
Swann, this Court attempted to “ suggest the nature of
limitations without frustrating the appropriate scope of
equity,” 402 U.S. at 31, which it had earlier described:
. . . Once a right and a violation have been shown,
the scope of a district court’s equitable powers to rem
edy past wrongs is broad, for breadth and flexibility
are inherent in equitable remedies.”
402 U.S. at 15. Accord, MilUken 11, supra, 433 U.S. at 281.
165 See United States v. Armour & Go., 402 U.S. 678 681 (1971)
{dictum). ’ v '
166 B . g . , Louisiana v. United States, 380 U.S. 145, 154 (1965).
153
The focus of Petitioners’ proposals is inconsistent with
these principles. Desegregation decrees are designed to end
segregation, not merely its methods and causes. As this
Court has only recently emphasized, “ the remedy does not
‘exceed’ the violation if the remedy is tailored to cure the
‘ “ condition that offends the Constitution.” ’ Milliken I,
supra at 738,” Milliken II, supra, 433 U.S. at 282. The same
guidelines have been enunciated and applied again and
again in anti-trust cases.167
Where there has been a finding of systemwide segrega
tion, approaching the task of defining the remedy on a
school-by-school basis, dependent upon prognostications
about the exact racial composition of that facility absent
discrete segregative decisions, not only trivializes the con
stitutional principles but invites the adoption of remedies
which are certain to fail of their objective. Where school
authorities’ intentionally segregative acts marked facilities
as “black” and began the process of racial turnover, limit
ing the remedy to only the directly traceable impact of the
initial violation may constitute little more than tinkering
which fails to alter that deliberately fostered racial iden-
tifiability. Moreover, the experience of the federal courts
since Brown indicates that plans which involve a greater
167 E.g., United States v. United States Gypsum Co., 340 U.S.
76, 88-89 (1950) :
A trial court upon a finding of a conspiracy in restraint of
trade and a monopoly has the duty to compel action by the
conspirators that will, so far as practicable, cure the ill effects
of the illegal conduct, and assure the public freedom from its
continuance. Such action is not limited to prohibition of the
proven means by which the evil was accomplished, but may
range broadly through practices connected with the acts actu
ally found to be illegal. Acts entirely proper when viewed
alone may be prohibited.
In addition to the cases cited in Gypsum, see, e.g., United States
v. Crescent Amusement Co., 323 U.S. 173, 189-90 (1944); United-
States v Loew’s, Inc., 371 U.S. 38, 53 (1962).
154
number of schools may be more stable and acceptable to
the community than more limited plans, because they dis
tribute responsibility for participating in the remedy more
evenly and do not leave racially identifiable schools as
ready havens for flight. See, e.g., Kelley v. Metropolitan
County Bd. of Educ., Civ. No. 2094 (M.D. Tenn., July 15,
1971), aff’d 463 F.2d 732 (6th Cir.), cert, denied, 409 U.S.
1001 (1972) ( “ In order to prevent certain schools from
becoming vehicles of resegregation, the schools which have
less than 15 per cent black pupils after the implementation
of this court-adopted plan shall not be enlarged either by
construction or portables, and shall not be renovated with
out prior court approval” ) ; Harrington v. Colquitt County
Bd. of Educ., 460 F.2d 193 (5th Cir.), cert, denied, 409 U.S.
915 (1972); Swann v. Charlotte-Mecklenburg Bd. of Educ.,
362 F. Supp. 1223 (W.D.N.C. 1973), appeal dismissed, 489
F.2d 966 (4th Cir. 1974), subsequent proceedings, 379 F.
Supp. 1098 (W.D.N.C. 1974).168 This Court explicitly en
dorsed the consideration of such factors at the remedy
stage in Wright v. Council of the City of Emporia, 407
U.S. 451, 464-65 (1972) and United States v. Scotland Neck
City Bd. of Educ., 407 U.S. 484, 489-90 (1972). Milliken v.
168 The likelihood of conflict and resistance to desegregation is
increased when plans are partial and people believe, correctly or
not, that they have been unfairly singled out to bear a dispropor
tionate part of the burden of remedy. “Opposition diminished
when the plans were made more inclusive,” U.S. Commission on
Civil Rights, Racial Isolation in the Public Schools 156
(1967) ; G. Orfield, “Minimum Busing and Maximum Trouble,”
in Must W e Bus 143-48 (1978). See also, J. Egerton, School
Desegregation: A Report Card From the South 18-19, 22, 30,
41-45 (1976) ; M. Giles et al., “Desegregation and the Private
School Alternative” in Symposium on School Desegregation
and W hite Flight (1975); M. Giles, D. Gatlin, and E. Cataldo,
Determinants of Resegregation: Compliance/R ejection Be
havior and Policy A lternatives (National Science Foundation,
1976); G. Orfield, If Wishes Were Bouses Then Busing Could
Stop: Demographic Trends and Desegregation Policy, Urban
Review 117-18 (Summer, 1978).
155
Bradley, supra, is not to the contrary. See Milliken 11,
supra, 433 TJ.S. at 281-82.169
Petitioners would foreclose federal courts from taking
into account these and other practical elements in devising
remedies in school desegregation cases. Though couched
in the form of a mere change in evidentiary rules, their
position, if adopted, would mark a sharp reversal in the
course of history under Brown. The mandate to district
courts would no longer be to shape remedy in a flexible
manner, taking into account practicalities and the need to
reconcile public and private needs, but rather to engage
in a mechanistic application of artificial rules, whatever
the consequences. The goal would no longer be to convert
to systems “ in which racial discrimination would be elimi
nated root and branch,” Green, supra, 391 U.S. at 438, but
to prune only the most prominent branches, leaving the
roots intact and permitting discrimination to flourish again.
169 In Milliken II this Court approved specific educational re
medial measures not upon the basis of evidence tracing the impact
of segregation upon children school-by-school or student-by-stu-
dent, but of testimony reflecting the informed judgment of edu
cators about how “ discriminatory student assignment policies can
themselves manifest and breed other inequalities. . . . ” 433 U.S.
at 283. The Court’s practical approach to remedy was reflected in
its view that
. . . Children who have been thus educationally and cultur
ally set apart from the larger community will inevitably
acquire habits of speech, conduct and attitudes reflecting their
cultural isolation. They are likely to acquire speech habits,
for example, which vary from the environment in which they
must ultimately function and compete, if they are to enter
and be a part of that community. . . .
. . . . The root condition shown by this record must be treated
directly by special training at the hands of teachers prepared
for that task. This is what the District Judge in the case
drew from the record before him as to the consequences of
Detroit’s de jure system, and we cannot conclude that the
remedies decreed exceeded the scope of the violations found.
433 U.S. at 287-88 (emphasis supplied).
156
Little can be imagined that would be more destructive of
the nation’s long struggle, supported by the Court, to
eliminate official racism from our society than to strip of its
practical meaning the equal protection guarantee of the
Fourteenth Amendment.
CONCLUSION
For the foregoing reasons, the judgment below should
be affirmed.
Respectfully submitted,
Thomas I. A tkins
A tkins & Brown
Suite 610
10 Post Office Square
Boston, Massachusetts 02109
Richard M. Stein
Leo P. Ross
Suite 816
180 East Broad Street
Columbus, Ohio 43215
Edward J. Cox
50 West Broad Street
Columbus, Ohio 43215
W illiam L. Taylor
Catholic University Law School
Washington, D.C. 20064
Nathaniel R. Jones
General Counsel, NAACP
1790 Broadway
New York, New York 10019
Louis R. Lucas
W illiam E. Caldwell
Ratner, Sugarmon, Lucas
and Henderson
525 Commerce Title Building
Memphis, Tennessee 38103
Paul R. Dimond
O’Brien, Moran and Dimond
320 North Main Street
Ann Arbor, Michigan 48104
Robert A. Murphy
Richard S. K ohn
Norman J. Chachkin
Lawyers’ Committee for
Civil Rights Under Law
Suite 520, Woodward Building
733 15th Street, NW .
Washington, D.C. 20005
Attorneys for Respondents, Penick, et al.
APPENDIX
APPENDIX
School Segregation and Residential Segregation:
A Social Science Statement
The problem of school segregation and residential segre
gation in large cities is one of the major issues facing
American society today. Courts, legislatures, public ad
ministrators, and concerned citizens have struggled to
understand the origins of the problem, to assess legal and
moral responsibility, and to devise appropriate and effec
tive legal, legislative, and administrative responses. Al
though public acceptance of the principle of desgregation
is at its highest point in our history,1 there is remarkable
dissensus and confusion about the legitimacy and effective
ness of many of the methods being used or considered to
1 “Over the past 25 years, the only period for which we have
even moderately good data on public attitudes, there has been a
consistent trend toward greater white acceptance of equality^ for
Negroes, including greater acceptance of residential integration”
(Bradburn, et al., Racial Integration in American Neighborhoods
(Chicago: National Opinion Beseareh Center Beport #111-B,
1970)). In 1978, 13% of whites said they would move if a black
family moved next door, compared to 35% in 1967 and 45% in
1963 (American Institute of Public Opinion, The Gallup Opinion
Index, Princeton, November, 1978). Among northern white par
ents in 1963, 67% reported they would not object to sending their
children to schools where half of the students were black. This fig
ure increased to 76% of the parents polled in 1970 and remained
about the same through 1975 (American Institute of Public Opin
ion, The Gallup Opinion Index, Princeton, February, 1976). An
even higher proportion of white parents report no objections to
sending their children to schools where “some” or “ a few” of the
pupils are black. See also Taylor, et al., “Attitudes Toward De
segregation,” Scientific American, June, 1978. In the South, where
the most school desegregation has occurred, the percentage of white
parents saying they object to sending their children to schools
where half of the students were black fell from 83% (1959) to
38% sixteen years later (Ordfield, Must We Bus1, Washington :
Brookings Institution, 1978, p. 109).
la
2a
combat segregation. The issues are complex. Legal, fac
tual, and political questions have become intertwined in the
public debate. It is the purpose of this statement to
identify certain of the factual issues that have been studied
by social scientists, to summarize the knowledge that has
resulted from these studies and been reported in scholarly
journals and books, and to comment on the limits of social
science knowledge.
This statement does not consider basic legal principles
or goals for the nation. The signers of this statement can
not speak with any special authority on moral and legal
issues. Some of the key issues, however, are factual issues
subject to social science analysis. Many aspects of the
nature of urban development and the segregation of minor
ity groups have been studied with care by numbers of in
dependent social scientists. Much has been learned about
urban history, urban politics, changing public attitudes, the
changing character of race relations, the operation of urban
housing markets, and the formation and spread of racial
segregation in urban areas. Section I of this statement is a
summary of the current state of knowledge on some of
these issues. Section II describes the kinds of conclusions
that social science can and cannot supply concerning causes
and effects of specific policies and actions. Section III pre
sents a brief review of accumulated social science knowl
edge on the probable stability and effectiveness of several
types of remedy that have been tried in school desegrega
tion efforts. This statement emphasizes findings on which
there is broad scholarly agreement, and avoids issues about
which the evidence to date does not permit reasonably clear
conclusions to be drawn.2
2 Although this statement was prepared initially at the request
of attorneys connected with litigation concerning the Dayton and
A ppendix
3a
I.
The Causes of School and Residential Segregation
and the Relations Among Them
Residential segregation between white and black Ameri
cans and other racial and ethnic minorities prevails in all
large cities in the United States.* 3 This segregation is at
tributable in important measure to the actions of public
officials, including school authorities.
Although ethnic enclaves are a long-established feature
of urban residential and commercial organization, the
recent experience of blacks and Hispanic minorities in
American cities has been far different than the historical
experiences of persons of European descent. Some first
and second generation European immigrants were dis
A ppendix
Columbus school systems, the evidence and conclusions herein
stated refer to American urban areas generally. Some of the stud
ies cited include Dayton and Columbus in their data base and
some do not. Not all the signers of this statement purport to
have studied either city.
3 Taeuber and Taeuber, Negroes in Cities (Chicago: Aldine,
1965). An index of residential segregation calculated from census
data on the numbers of white and nonwhite households on each
city block has a theoretical range from zero (no segregation) to
100 (complete segregation). Indexes for 109 large American cit
ies varied from 64 (Sacramento) to 98 (Miami) in 1960, and
averaged about 86. Other minority groups were also residentially
segregated. Updates based on the 1970 Census show a continua
tion of the pattern, with an average white-nonwhite segregation
index for the same 109 cities of 81 (Sorensen, et al., “ Indexes of
Racial Residential Segregation for 109 Cities in the United States,
1940-1970,” Sociological Focus, 8 (1975), 125-142). Viewed from
a metropolitan rather than central city perspective, racial segre
gation increased in many urban areas during the 1960’s (van
Valey, Roof, and Wilcox, “ Trends in Residential Segregation:
1960-1970,” American Journal of Sociology 82 (Jan., 1977), 826-
844).
4a
criminated against and were subject to restrictions on the
housing they could obtain. Nevertheless their degree of
residential segregation declined rapidly from the peak
levels attained during periods of rapid immigration, and
those peak levels were never as high as the levels typical
for blacks and Hispanic minorities today.4 The ethnic
enclave for whites was temporary and, to a large extent,
optional,5 while for blacks, Puerto Ricans, and other His-
panics, “ segregation has been enduring and can, for the
most part, be considered as involuntary.” 6
Every major study of the housing of blacks and whites
in urban America has identified racial discrimination as a
major explanation of the observed segregation.7 A recent
review listed many forms of racial discrimination practiced
by governmental and private agencies and individuals with
in the housing industry.8
Nearly a decade after federal legislation outlawing many
such practices and a Supreme Court decision rendering
4 Lieberson, Ethnic Patterns in American Cities (New York:
Free Press, 1963), p. 120-132; Taeuber, “Demographic Perspec
tives on Housing and School Segregation,” 21 Wayne Law Review
833-40.
6 Brbe, “Race and Socioeconomic Segregation,” American Socio
logical Review 40 (December, 1975), p. 801-812.
6 Butler, The Urban Crisis: Problems and Prospects in America
(Santa Monica: Goodyear Publishing, 1977), p. 50.
7 DuBois, The Philadelphia Negro (Philadelphia: University of
Pennsylvania, 1899); Myrdal, An American Dilemma (New York:
Harper, 1944) ■ Weaver, The Negro Ghetto (New York: Hareourt,
Brace, 1948) ; Commission on Race and Housing, Where Shall We
Live f (Berkeley, University of California, 1958) ; U.S. Commis
sion on Civil Rights, 1961 Report, VI, Housing; National Advis
ory Commission on Civil Disorders, Report (1968) ; etc.
8 Taeuber, “Demographic Perspectives on Housing and School
Segregation,” Wayne Law Review 21 :March 1975, 840-841.
A ppendix
5a
them all illegal, a government study revealed that such
practices continued but often in more subtle and covert
form.9
Policies and practices of the federal government have
been particularly important since the beginnings of major
federal housing programs during the Depression.10 The
ghetto pattern that was created by deliberate policy has
become far harder to alter than it was to create. The
ghettos grew along with simultaneous pervasive discrimi
nation and segregation in education, government employ
ment, and provision of many government services. These
became such fundamental features of American life that
they were often taken for granted, viewed as “natural”
forms of social organization.
A simple example will suggest the inertial resistance to
change that has resulted from the history of racial dis
crimination in housing. Governmentally insured home
mortgages spurred the widespread practice of low down
payments and long repayment terms. This brought home
ownership within the reach of young middle-income fami
lies, and was an underlying facilitator of rapid white sub
9 U. S. Department of Housing and Urban Development, “Pre
liminary Findings of the 1977 Housing Market Practices Survey
of Forty Cities,” presented at the Tenth Anniversary Conference
of Title VIII of the Civil Rights Act, Washington, D.C., April 17
and 18, 1978; Pearce, Black, White, and Many Shades of Gray:
Real Estate Brokers and Their Racial Practices, unpublished Ph.D.
dissertation, University of Michigan, 1976.
10 Tens of millions of housing units have been built and occupied
under federal government subsidy and insurance programs. The
mass movement of white population to outlying urban and subur
ban developments and the growth of central area minority ghettos
occurred during this period, guided by the explicit policies of dis
crimination written into government regulations and administra
tive practice. See Frieden and Morris, Urban Planning and Social-
Policy, pp. 127-131, and works cited in footnote 1.
A ppendix
6a
urbanization during the last three decades. Most blacks
were excluded from the FHA and Y A mortgage insurance
programs, based upon, among other things, the assertion
that: “ If the children of people living in . . . an area are
compelled to attend school with a majority or a consider
able number of pupils representing a far lower level of
society or an incompatible racial element, the neighborhood
under consideration will prove far less stable and desirable
than if this condition did not exist.” 11 In the current pe
riod of persistent inflation, a much higher proportion of
white families than of black families has a growing equity
in home ownership. Whatever gains blacks may make rela
tive to whites in obtaining jobs and reasonable incomes,
they will long lag far behind in wealth.12 Thus will past
discriminatory practices of the FHA and other housing
agencies continue for decades yet to come to exert an in
fluence on the racial structure of the nation’s metropolitan
areas.
Not all of the governmental discrimination that fostered
residential segregation was practiced by housing agencies.
Employment discrimination affected the earnings of blacks
and influenced their workplaces, and both of these effects
constrained housing opportunities. Discrimination in the
provision of public services, such as paved roads, frequent
trash collection, and new schools, was standard practice in
southern cities and common in northern cities. Thus were
11 F.H.A., Underwriting Manual, 1935 Edition.
12 Orfield, “ If Wishes Were Houses Then Busing Could Stop:
Demographic Trends and Desegregation Policy,” School Desegre
gation in Metropolitan Areas: Choices and Prospects (A National
Conference), National Institute of Education, Washington, D.C.,
October, 1977; Kain and Quigley, “Housing Market Discrimina
tion, Home Ownership, and Savings Behavior,” American Eco
nomic Review (June, 1972).
A ppendix
7a
residential areas for blacks further demarcated and stig
matized. Racial discrimination was institutionalized
throughout American society, and the resulting patterns of
segregation in housing, schooling, employment, social life,
and even political activity had many causes.13 Discrimina
tory practices and racial segregation in each aspect of life
contributes to the maintenance and reinforcement of simi
lar practices and segregatory outcomes in other aspects.
Education is a pervasive governmentally organized ac
tivity that reaches into every community. The institution
alization of racially discriminatory practices throughout
the public school system is a substantial cause as well as
effect of society’s other racial practices. Society’s major
institution for socializing the young, aside from the family,
is the public school system. Most children are greatly in
fluenced by their school experiences, not simply in formal
academic learning but in developing a sense of self and
knowledge and feelings about social life and behavior.
There is an interdependent relationship between school
segregation and neighborhood segregation. Each rein
forces the other. Policies that encourage development and
continuation of overwhelmingly racially identifiable schools
foster residential segregation. This residential segregation
in turn fosters increased school segregation. The role of
many governmental practices in the development and con
tinuation of residential segregation has been documented
repeatedly and summarized above. Several specific ways in
which school policies and practices contribute to residential
segregation may be delineated.
The racial composition of a school and its staff tends to
stamp that identity on the surrounding neighborhood. In
A ppendix
13 Myrdal, op. cit.
8a
many urban areas, the attendance zone of a school defines
the only effective boundary between “neighborhoods.” 14 15
Homebuyers use school attendance zones as a guide in their
selection of a residence. Realtors take particular pains to
“ sell” the school as they sell the hom e;16 the school zone is
listed in many newspaper classified advertisements for
homes and often serves to identify the racial character of
the “neighborhood.”
In many American cities during the last 30 to 60 years,
residential areas of predominant minority occupancy have
greatly expanded. Often an increasing black or Hispanic
population has moved into housing formerly occupied by
(Anglo) whites. This process of “ racial succession” or
“ghettoization” has been perceived as a relentless “na
tural” force, yet it is in fact governed by institutional
policies and practices and is not at all inevitable.16 The
process is a textbook example of a self-fulfilling prophecy.
The expectation by whites that an area will become black
leads them to take individual and collective actions that
ensure the outcome. Housing market barriers against sale
or rental to blacks are reduced, panic selling tactics often
stimulate white residents to leave, and potential white in
A ppendix
14 “No other boundary system within the city is as crucial to
residential behavior as the system of attendance zones delineated
by school authorities.” Taeuber, “Housing, Schools, and Incre
mental Segregative Effects,” Annals of the American Academy of
Political and Social Science, v. 441 (Jan., 1979), p. 164.
15 Helper, Racial Politics and Practices of Beal Estate Brokers
(Minneapolis: 1969) reports that school image and racial compo
sition play the key role in labelling neighborhoods as undesirable:
“People fear that the schools will become undesirable— this, say
respondents, is the main reason why white people do not want
Negroes to come into their area” (p. 80).
16 Taeuber and Taeuber, op. cit., Part 2.
9a
migrants from other parts of the city are steered away
from the neighborhood because it is “ turning” or “going.”
Change in the racial identifiability of a school can in
fluence the pace of change in racial composition in a
“ changing” residential area.17 In contrast, a school with a
stable racial mix connotes to nearby residents and potential
in-movers that they will not he forsaken by school au
thorities. School policies can serve to “ coalesce a neighbor
hood and generate confidence in its continued stability.” 18
Even childless households are affected by the school
and neighborhood racial labelling process. Residential
location is a major factor in determining social status in
America.19 Many whites who contemplate remaining in or
entering an area where the school has an unusually large
or increasing proportion of minority pupils or staff expect
that such a school will be discriminated against by school
officials. “As the proportion of disadvantaged students in
the central cities has increased, there has been a simulta
A ppendix
17 Wolf, “ The Tipping-Point in Racially Changing Neighbor
hoods,” Journal of the American Institute of Planners, v. 29
(1963), 217-222, esp. 220-1.
18 Vandell and Harrison, Racial Transition in Neighborhoods
(Cambridge: Joint Center for Urban Studies, 1976), 13.
19 Warner, Social Class in America (Chicago: Science Research
Associates, 1949), 151. Cf. Roof, “Race and Residence,” Annals,
v. 441 (Jan., 1979), p. 7; Marston and van Valey, “ The Role of
Residential Segregation in the Assimilation Process,” Annals, v.
441 (Jan., 1979), pp. 22-25; Berry, et al., “Attitudes Toward In
tegration: The Role of Status in Community Response to Racial
Change,” in Schwartz, ed., The Changing Face of the Suburbs
(Chicago: University of Chicago Press, 1976), 221-264; Guest
and Weed, “Ethnic Residential Segregation,” American Journal
of Sociology, v. 81 (March, 1976), 1088-1111, esp. 1092; Sennett,
“ The Brutality of Modern Families,” Transaction (Sept., 1970),
29037; Loewen, The Mississippi Chinese: Between Black and
White (Cambridge: Harvard University Press, 1971), 102-119.
1 0 a
neous increase in what are known in the community as
‘undesirable’ schools, schools to which parents would prefer
not to send their children.” 20 These parents know what all
citizens know: that black Americans have less social status
and power with which to persuade or coerce school au
thorities to meet their needs. This perception, that black
schools will be allowed to deteriorate, has historical justifi
cation.21 Whatever the objective circumstances, parents
expect that children in schools perceived to be for minority
children will receive inferior education. Many white
parents are able to move or place their children in other
schools.22 Most black parents are unable to avoid using
identifiably black schools. If all schools were interracial,
whites could not link racial composition to school quality,
nor could school authorities.
All discriminatory acts by school authorities that con
tribute to the racial identifiability of schools promote
racially identifiable neighborhoods. Sometimes the effect is
direct and obvious, as when the selection of school construc
tion sites, the drawing of school boundaries, and/or the
construction of additions are carefully undertaken to
establish and preserve “white schools” and “black schools.”
Sometimes the effect is less direct. In most school districts
minority teachers have until very recently rarely been
A ppendix
20 Campbell and Meranto, “ The Metropolitan Educational Di
lemma,” in Gale and Moore, eds., The Manipulated City, 305-318,
p. 310 (Chicago: Maaroufa Press, 1975). Cf. Surgeon, et al., Race
Relations in Chicago: Second Survey, 1975. (Chicago: University
of Chicago Family and Community Study Center, 1976, p. 158).
21 Campbell and Meranto, op. cit., p. 313; Baron, “Race and
Status in School Spending,” in Gale and Moore, eds., The Manip
ulated City, 339-347.
22 Vandell and Harrison, op. cit.
11a
assigned to schools with no minority pupils, and in many
large urban school districts few minority teachers were
employed. Had white pupils and parents regularly en
countered blacks in responsible professional positions, and
had minority pupils and parents seen white and black pro
fessionals equally treated, the perpetuation of stereotypical
attitudes and prejudicial habits of thought would have been
significantly challenged.23
A pervasive effect of this and certain other types of
discriminatory school actions is upon the attitudes of the
students who grow up experiencing such a system for a
thousand hours a year. Participation in segregated institu
tions foments the development of prejudicial attitudes.24
Participation in desegregated institutions, under benign
conditions, can be a powerful force for breaking down
prejudice.25 “If in their own schooling they [parents] had
been taught tolerance rather than intolerance many more
of them would now be willing and even eager to seek out
racially mixed rather than racially isolated residential
areas.” 26
Racially discriminatory pupil assignment policies tend
to increase residential segregation in several ways. An
open transfer policy is often manipulated by school au
thorities to encourage or permit whites to flee schools that
A ppendix
23 Taeuber, “ Housing, Schools, and Incremental Segregative E f
fects,” The Annals of the American Academy of Political and Social
Science, (Jan., 1979), 161.
24 Crain and Weisman, Discrimination, Personality and Achieve
ment (New York: Seminar Press, 1972).
25 Festinger, A Theory of Cognitive Dissonance (Evanston:
1957) ; Allport, The Nature of Prejudice (Garden City: Anchor,
1958) .’
26 Taeuber, op. cit., p. 162.
12a
are becoming biracial, and to attend overwhelmingly white
schools some distance away. The effect on residential
patterns would appear to be to permit white families to
remain in a biracial residential area. The larger effects
are, however, segregative. First, because the children who
transfer lose many of their neighborhood ties, the family
finds it easier to move to the neighborhood around their
new school or to a more remote white enclave. Second,
because the sending school is now identified as “black” or
“ changing,” white families who might otherwise have moved
into the area will be steered elsewhere and the area will
become increasingly minority.27
When the elected officials and appointed professional
leaders of a major societal institution (the public schools)
establish or condone the operation of optional attendance
zones in a discriminatory manner, this tells the users of
the institution (students and their parents) and the general
public that it is correct to view racial contact as a problem
and to utilize institutional practices and policies in ways
that avoid the problem. The effect on attitudes has both
short-run and life-long effects that may affect so-called
“private” choices in housing and other areas of life.28 “The
NORC study found that desegregated whites were more
likely to have had a close black friend, to have had black
friends visit their homes, and to be living in multiracial
neighborhoods. It is believed that having had a close black
A ppendix
27 Molotch, Managed Integration (Berkeley and Los Angeles:
University of California Press, 1972) ; Bradbnrn et al., Racial Inte
gration in American Neighborhoods (Chicago: National Opinion
Research Center, 1970) ; Orfield, op. cit., 97; Milgram, Good Neigh
borhood: The Challenge of Open Mousing (New York- Norton
1977).
28 Taeuber, op. cit., 162-4.
13a
friend relates directly to choice of residence in a, multi
racial area. This is also true for blacks.” 29
The actions of school officials are part of a set of dis
criminatory actions by government agencies, and other
institutions. This web of institutional discrimination is the
basic cause of school and residential segregation. Economic
factors and personal choice are often considered as addi
tional causes.30
The assertion sometimes made that residential segrega
tion results from racial differences in economic status
rather than from racial discrimination is a curious one.
Racial discrimination in employment and earnings is a
major cause of racial differences in economic status, and
racial discrimination in access to homeownership was cited
above as a cause of racial differences in wealth. Racial
discrimination in education in prior years is of course one
of the causes of poorer job market outcomes for black
adults. It is not necessary to elaborate on these inter
locking causes. The fact is that current racial economic
differences have little effect on racial residential segrega
tion. If economic variables alone determined where people
lived, the rich of both races would live near one another
and poor blacks and poor whites would be close neighbors.
Such is not the case. Well-to-do blacks live in very different
29 Green, “Northern School Desegregation: Educational, Legal
and Political Issues,” Chapter 10 of Gordon, ed., Uses of the Soci
ology of Education (Chicago: 1974), 251. “NORC” is the National
Opinion Research Center. See also Meyer Weinberg, Desegregation
Research (Phi Delta Kappa, 1970), pages 311-313, citing Pettigrew
and NORC studies. Regarding black choices, see Crain, “ School
Integration and the Academic Achievement of Negroes,” Sociology
of Education, v. 44 (1971), p. 19. See also Bullogh, “ Social Psy
chological Barriers to Housing Desegregation,” UCLA Graduate
Sehool of Business Administration, Special Report 2, 1969, pro
cessed.
50 Myrdal, op. cit.
A ppendix
14a
areas than well-to-do whites and poor whites generally do
not share their residential areas with poor blacks.31 Nor
can economic factors explain the general absence of blacks
from the suburbs. Studies of census data reveal that in
most metropolitan areas the suburbs are open to whites in
all economic categories but are generally closed to blacks,
be they wealthy or impoverished.32 If people were res-
identially distributed according to their income rather than
their skin color, most urban neighborhoods would contain
racially mixed populations.
Despite the civil rights legislation of the 1960s and
numerous court orders that prohibit discriminatory em
ployment practices, the incomes of blacks continue to lag
far behind those of whites.33 Improvements in the economic
status of blacks would allow more blacks to upgrade their
housing but increased spending on housing would do little
to alleviate racial residential segregation.34 *
A ppendix
31 Taeuber and Taeuber, op tit., chapter 4; Taeuber “ The Effects
of Income Redistribution on Racial Residential Segregation.” Urban
Affairs Quarterly, Yol. 4, No. 1, September 1968, pp. 5-14.
_ 32 Hermalin and Farley, “ The Potential for Residential Segrega
tion in Cities and Suburbs: Implications for the Bussing Contro
versy,” American Sociological Review, Yol. 38, No. 5, October, pp.
595-610; Farley, Bianchi, and Colasanto, “Barriers to the Racial
Integration of Neighborhoods: The Detroit Case,” The Annals of
the American Academy of Political and Social Science, Yol. 441
January 1979, pp. 97-113.
33 In 1977 black men who worked full time for the entire year
reported earnings about 69% as great as those of comparable white
men. The average income of black families was 57% as great as
that of white families. U.S. Bureau of the Census, Current Popula
tion Report Series P-60, No. 116, July 1978, Tables 1 and 7.
34 Straszheim, “Racial Discrimination in the Urban Housing Mar
ket and its Effect on Black Housing Consumption,” in von Fursten-
berg; Harrison, and Horowitz (eds.), Patterns of Racial Discrim
ination, Volume 1, Housing. Lexington, Mass: Lexington Books
1974; Taeuber, op. tit.
15a
The personal choices of individuals must be considered
in any explanation of racial residential segregation. In
national and local survey studies, most blacks express a
preference for racially mixed neighborhoods for themselves
and racially integrated schools for their children. For
example, in a national study conducted in 1969, three-
fourths of black respondents wished to live in integrated
neighborhoods while one in six expressed a preference for
an all-black area.36 In Detroit, the proportion of blacks
who said they preferred racially mixed areas rose from
56 percent in 1968 to 83 percent in 1976.86 These preferences
cannot be used to predict where black families actually
live, for they have had lifelong experience with discrim
inatory housing markets that offer little actual freedom of
choice.37
In the late nineteenth and early twentieth centuries,
economic factors and personal preferences may have been
important determinants of residential location of blacks
and European immigrants.38 As the number of blacks
36 Pettigrew, “Attitudes on Race and Housing: A Social-psycho
logical View,” in Hawley and Rock (eds.), Segregation in Res
idential Areas (Washington: National Academy of Sciences,
1973), 21-48.
36 Farley, et al., “ Chocolate City, Vanilla Suburbs: Will the
Trends Toward Racially Separate Communities Continue?” Social
Science Research, Vol. 7, No. 4, December 1978, 319-344.
37 Colasanto, “ The Prospects for Racial Integration in Neighbor
hoods: An Analysis of Preferences in the Detroit Metropolitan
Area,” Ph.D. Dissertation, University of Michigan, 1978.
38 Hershberg, et al., “A Tale of Three Cities: Blacks and Immi
grants in Philadelphia, 1850-1880, 1930 and 1970,” Annals of the
American Academy of Political and Social Science, Vol. 441, Jan
uary 1979, 55-81; Lieberson, Ethnic Patterns in American Cities
(New York: Free Press of Glencoe, 1963); Spear, Black Chicago:
The Making of a Negro Ghetto, 1890-1920 (Chicago: University
of Chicago Press, 1967).
A ppendix
16a
increased, institutionalized Jim Crow practices developed
and for more than half a century the black residential
patterns have diverged from those of the ethnic groups.
The conclusions of a historical study of the development
of the Negro ghetto in Chicago are exemplary of other
historical studies:39 “The most striking feature of Negro
housing . . . was not the existence of slum conditions, but
the difficulty of escaping the slum. European immigrants
needed only to prosper to be able to move to a more
desirable neighborhood. Negroes, on the other hand,
suffered from both economic deprivation and systematic
racial discrimination. . . . The development of a physical
ghetto in Chicago . . . was not the result chiefly of poverty,
nor did Negroes cluster out of choice. The ghetto was
primarily the product of white hostility.”
Neither economic factors nor the preferences of blacks
for having some black neighbors can be interpreted as
current causes of residential segregation separate and dis
tinct from discrimination. Neither income differences nor
personal choice produce high levels of racial residential
segregation in hypothetical models that assume an absence
of discrimination.40
In this review of findings, frequent use has been made
of the terms “ cities” and “urban areas.” The usage has
deliberately been loose. The concepts of a housing market,
a labor market, and a commuting area all connote a broad
territory. The effects of any action that alters residential
patterns in a specific location are not felt solely in that
location. The kinds of discriminatory actions reviewed
A ppendix
39 Spear, op. cit., p. 26.
40 Taeuber and Taeuber, op. c i t ; Taylor, op. cit.
17a
earlier in this section, whether taken by school officials,
other governmental officials, commercial or financial insti
tutions, or other groups or persons, have effects that spread
beyond the neighborhoods initially affected.41
In the thirty-five years since Myrdal’s seminal study of
America’s racial problems was first published,42 American
society has changed in many wrays and race relations have
experienced profound transformations. Social scientists
have published thousands of additional studies of various
aspects of race relations. I f there is a common theme
emerging from this myriad of studies, it is continual re
affirmation of Myrdal’s observation of a process of cumu
lative causation binding the separate threads of social life
into a system.43 This review of research on a limited range
of topics has shown that causes and effects of individual ac
tions cannot be understood or evaluated apart from the
broader social context in which they are imbedded. Resi
dential segregation, school segregation, racial economic-
differences, housing preferences and neighborhood atti
tudes, discriminatory acts by school officials, and discrimi
nation practiced by other governmental agencies are linked
together in complex patterns of reciprocal causation and
influence.
A ppendix
41 Hawley, Human Ecology (New Y ork R on a ld , 1950); Berry
and Kasarda, Contemporary Urban Ecology (New York: Macmil
lan, 1977) ; Taeuber, “Demographic Perspectives on Metropolitan
School Desegregation,” in School Desegregation in Metropolitan
Areas: Choices and Prospects (Washington: National Institute of
Education, 1977).
42 Myrdal, op. cit.
43 Ibid., 77.
18a
II.
Conclusions Social Science Can and Cannot Supply
The previous section reported a brief summary of some
of the conclusions that can be drawn from the writings of
social scientists who have studied school segregation, hous
ing segregation, and other aspects of race relations in
twentieth-century American society. A few dozen articles,
chapters, and books were cited, from the thousands that
might be included in a comprehensive literature survey.
The individual scholarly investigations utilized a variety
of information sources—interviews with realtors, govern
ment documents, records of housing sales prices, census
data, etc. The techniques for analyzing information were
varied—historical interpretation, statistical analysis, log
ical testing of predictions from formal theories, etc. The
common link is a laying out of evidence and mode of anal
ysis so that other scholars can examine the basis for the
conclusions drawn. Many social scientists agree that the
conclusions reported in Section I are reasonably well estab
lished. Of course the evidence is stronger for some conclu
sions than for others, and the scientist is always open to
altering conclusions on the basis of new evidence.
The principal conclusions reported in Section I concern
relationships among discriminatory actions by educational
agencies, school segregation, residential segregation, and
other types of institutionalized racial discrimination. A
pervasive pattern of interdependence within American
urban areas was documented. In particular, it was con
cluded that segregative school policies are among the causes
of urban racial residential segregation.
Some social scientists have been asked to refine these gen
eral conclusions and provide precise answers about specific
A ppendix
19a
causal relationships in particular places and times.44 They
have been asked how much effect discriminatory and seg
regative school policies had on residential segregation and
what exactly was the reciprocal effect of that incremental
residential segregation on school attendance patterns. Even
more precision is requested in the question: What is the
numerical effect on current school attendance patterns that
results from direct and indirect effects of individual dis
criminatory actions taken in the past by school officials!
Social scientists cannot answer such questions with pre
cision. The questions can be rephrased to call for stating
what the present would be like if the past had differed in
certain specified respects. This is reminiscent of the grand
“what if” games of history. What if the South rather than
the North had been victorious in 1865! Would the United
States be one nation! When would slavery have ended!
What role would black labor have played in the industrial
ization of northern cities! Clearly there is fascinating
material here for historical speculation, but any answers,
however well grounded on scholarship and logical reason
ing, are inherently fictional. And the game loses all point
if the question becomes too narrow: What would the racial
composition of Atlanta and of Chicago be in 1980! History
cannot be unreeled and reeled back differently.
The present state of empirical knowledge and models of
social change does not permit precise specification of the
effects of removing particular historical actions. Although
many of the causes of segregated outcomes are known, this
knowledge is not so thoroughly quantified as to permit pre
cise estimates of the effects of specific discriminatory acts
on general patterns of segregation. In addition, the knowl
44 For an indication of the judicial context in which such ques
tions have been posed, see Taeuber, op. cit.
A ppendix
20a
edge that is available is incomplete. Many of the links be
tween discrimination and segregation are only dimly per
ceived and not yet carefully investigated. The work of
many specialists— economists, psychologists, sociologists,
political scientists, geographers—cannot be integrated into
a grand model. Even if each individual link were well
understood, the model could not be used to crank out esti
mates without understanding how the entire set of relation
ships functions as a system.45
Social scientists studying real cities in a particular
society and time period do not have available the tech
niques of experimental analysis for control of variables.
There are a few hundred urban areas to be studied, and
thousands of variables with which to describe them and dif
ferentiate one from another. The kinds of generalizations
that are possible are limited in character. Historical re
construction simply cannot meaningfully quantify what the
racial distribution of pupils or residents would have been
if particular school officials had acted differently. Delimit
ing the wrong that flowed from specific acts and righting
the wrong are matters for jurisprudence, not social science.
III.
Knowledge about the Desegregation Process
Although most large urban school districts with substan
tial numbers of minority pupils enrolled have changed
some of their practices as a result of Brown v. Board of
Education and subsequent court decisions, many have never
implemented comprehensive desegregation plans. Of those 46
46 For an example of the inability to ultilize certain formal models
of the effects of prejudice and discrimination on racial segregation
in the housing market, see Taylor, op. cit.
A ppendix
21a
that have implemented such plans, most of the activity has
been in recent years. There has been relatively little op
portunity for sustained study of the process of school de
segregation in large urban areas. Nevertheless the social
science literature on school desegregation already numbers
hundreds of articles and books.46
An early body of research on educational achievement
utilized existing or only slightly modified standardized tests
and assessment instruments. Many of these studies did
not distinguish between racially mixed classrooms or
schools that resulted from specific desegregation efforts
and those that occurred for other reasons. Most lacked a
time dimension, investigating only the situation at the time
of study, or assuming that desegregation was an event that
occurred all at once. There is a virtual consensus, from a
wide variety of studies conducted in this manner, that
desegregation does not damage the educational achieve
ment of white children.47
The Coleman Report found limited but significant educa
tional gains for minority children, which it attributed pri
marily to the placement of these children in more challeng
46 Weinberg, The Education of the Minority Child (Chicago:
Integrated Education Associates, 1970) lists 10,000 “selected
entries.”
47 Coleman, et al., Equality of Educational Opportunity (Wash
ington: Government Printing Office, 1966), pp. 22, 297, 325; St.
John, School Desegregation: Outcomes for Children (New York:
Wiley, 1975), p. 35; Jencks and associates, Inequality: A Reassess
ment of the Effect of Family and Schooling in America (New York:
Basic Books, 1972), pp. 105-6; Weinberg, Desegregation Research:
An Appraisal, 2nd ed. (Bloomington, Ind.: Phi Delta Kappa, 1970),
p. 88. There has also been some evidence of definite white gains
in plans which combined desegregation with educational improve
ments. (St. John, pp. 157-62; Pettigrew, et al., “Busing: A Review
of ‘The Evidence,’ ” in Nicolaus Mills, ed., The Great School Bus
Controversy (New York: Teachers College Press), p. 148.
A ppendix
22a
ing educational settings dominated by students from
families with more resources and stronger educational
backgrounds.48 The Report, and a number of reanalyses of
the national statistics on which it was based, found that
the quality of the school was more important to poor chil
dren while family influences were more decisive for middle-
class children.49 50 * * * * *
Research in the 1970’s has moved toward a view of de
segregation as a process rather than an event, a process
which is very much influenced by the manner in which it
is carried out. Segregation appears to be a deeply rooted
problem. Years of quiet work within a physically desegre
gated school may be needed to attain the intended benefits.60
Early experiences continue to influence later learning, and
social and cultural patterns of race relations cannot be
rapidly and easily altered in the school when profound in
equalities of income, employment and occupational status,
educational background, and social status prevail in the
society.
The positive effects of desegregation can be enhanced
by strong leadership of the principal in the school, by train
ing for teachers who need help in the readjustment, and by
school rules that are perceived as fair by both white and
A ppendix
48 Coleman et al., op. cit., p. 22.
49 Smith, “ Equality of Educational Opportunity: The Basic
Findings Reconsidered,” in Mosteller and Moynihan, eds., On
Equality of Educational Opportunity (New York: Random House
1972), p. 312.
50 Orfield, “ How to Make Desegreation W ork: The Adaptation
of Schools to their Newly-Integrated Student Bodies,” 29 Law <&
Contemporary Problems, No. 2, at 314 (1975) ; Forehand, Ragosta,
and Rock, Conditions and Processes of Effective School Desegre
gation (Princeton, N .J.: Educational Testing Service, 1976), pp.
217-230.
23a
minority children.61 Efforts by teachers to explain racial
issues and to assign students consciously to integrated
work groups can have substantial positive effect.62
The importance of beginning integration at the onset of
public schooling has long been noted. Young children have
the smallest gap in academic achievement and the least
developed racial stereotypes.63 Integration becomes part of
their concept of school from the beginning, not a drastic
change. Federal officials report that there is seldom any
difficulty associated with desegregating the earliest grades.64
A review of scores of published studies of academic achieve
ment shows that a large majority of the cases with first
grade desegregation bring positive educational results
while later desegregation has little effect on black pupil
A ppendix
61 Forehand and Ragosta, A Handbook for Integrated Schooling
(Washington: Government Printing Office, 1976).
63 Cook, “ Interpersonal and Attitudinal Outcomes in Cooperating
Interracial Groups,” Journal of Research and Development in Edu
cation, 1978 12:1, 97-113; DeVries, Edwards, and Slaven, “Biracial
Learning Teams and Race Relations in the Classroom: Four Field
Experiments Using Teams-Games-Tournament,” Journal of Edu
cational Psychology, 1978, 70:3, 356-362; Slaven, “ Effects of Bi-
raeial Learning Teams on Cross-Racial Friendships,” Journal of
Educational Psychology, 1979, forthcoming; Wiegel, Wiser, and
Cook, “ The Impact of Cooperative Learning Experiences on Cross-
Ethnic Relations and Attitudes,” Journal of Social Issues 1975:31,
219-244.
53 Coleman, et al., op. cit., pp. 274-275; National Opinion Re
search Center, Southern Schools: An Evaluation of the Effects of
the Emergency School Assistance Program, and of School Deseg
regation (Chicago: NORC, 1973), pp. 45-47, 79.
64 Report from Community Relations Service of the U.S. Depart
ment of Justice accompanying letter from Assistant Attorney Gen
eral Ben Holman to Senators Edward Brooke and Jacob Javits,
June 19, 1976; printed in Congressional Record (daily edition),
June 26, 1976, pp. S10708-11.
24a
achievement scores.65 66 A study of schools in the South
showed that the more years of desegregation, the more
positive were the results.66 Pettigrew summarized the
sociological theory and cited additional evidence.67 Em
pirical results and social theory buttress the commonsense
observation that small children have not yet learned that
race is supposed to matter and therefore tend to act as if
it does not.
Certain longer run effects of school desegregation may
occur outside of the school. Few of these effects have yet
been studied, but some evidence is begining to accumulate.
Students from integrated schools, for example, are more
likely to succeed in strong colleges.68 69 A retrospective study
of black adults found that those who reported attending
integrated schools as children were more likely in later
years to live in racially integrated neighborhoods.59 Ulti
mately, studies of the long-run effects of desegregation may
provide crucial evidence on the strength of the indirect
effects of school discrimination that were cited in Section I.
Already there is limited evidence that school desegregation
can spur stable residential desegregation.60
65 Crain and Mehard, “Desegregation and Black Achievement,”
forthcoming in Law and Contemporary Problems, 1979.
66 National Opinion Research Center, Southern Schools, p. 53;
Forehand, Ragosta, and Rock, Conditions and Processes of Effective
School Integration, pp. 217-230.
67 Pettigrew, “A Sociological View of the Post-Bradley Era,”
21 Wayne Law Review 813, at 822.
68 Crain and Mehard, “ High School Racial Composition and
Black College Attendance,” Sociology of Education, April 1978.
69 Crain and Weisman, Discrimination, Personality, and Achieve
ment (New York: Seminar Press, 1972).
60 Green, op. cit., p. 252, re Riverside, Calif.; Taeuber, 1979, p.
20, re Milwaukee; Kentucky Commission on Human Rights,
A ppendix
25a
Social scientists have played a central role in a vigorous
political and scientific debate over the demographic and
enrollment effects of implementing desegregation plans.
As yet there is little consensus over the terms of the de
bate, the appropriate measurement techniques and theoret
ical formulations, and the trustworthiness of various em
pirical results. Nevertheless there seems to be an emerging
consensus that certain types of desegregation actions are
most likely to result in large declines in public school en
rollment by white pupils. If a plan is limited to a small
fraction of the system and produces schools with large
minority enrollments surrounded by readily accessible white
schools, there is likely to be instability in white enroll
ments.* 61 A study of desegregation in large school districts
across Florida showed that enrollment stability was aided
by system-wide plans that avoided leaving schools sub
stantially disproportionate in their racial composition.62
A study of the experience in Charlotte-Mecklenburg showed
that the exclusion of only a few schools produced some
residential instability.63 Limiting a desegregation plan to
A ppendix
“ Housing Desegregation Increases as Schools Desegregate in Jef
ferson County” (Louisville, 1978); Rossell, Assessing the Unin
tended Impacts of Public Policy: School Desegregation and Re
segregation (Washington: National Institute of Education, 1978),
p. 29; Orfield, “ If Wishes Were Houses Then Busing Could Stop:
Demographic Trends and Desegregation Policy,” op. cit., p. 51;
Braunscombe, “ Times Are A ’Changing in Denver,” Denver Post,
May 1, 1977.
61 Giles, “White Enrollment Stability and School Desegregation:
A Two-Level Analysis,” American Sociological Review 43: 1978.
62 Giles, Gatlin, and Cataldo, Determinants of Desegregation:
Compliance/Rejection Behavior and Policy Alternatives (Wash
ington: National Science Foundation, 1976).
63 Lord, “ School Busing and White Abandonment of Public
Schools,” Southern Geographer 15:1975; ------ , “ School Desegre
gation Policy and Intra-School District Migration,” Social Science
Quarterly 56: 1977.
26a
the immediate vicinity o f a ghetto or barrio is likely to
accelerate the process o f ghetto expansion described in
A ppendix
Section I.
Andrew Billingsley
(Morgan State University)*
Baltimore, Maryland
James E. Blackwell
(University of Massachusetts)
Boston, Massachusetts
Ernst Borinski
(Tougaloo College)
Tougaloo, Mississippi
Everett Cataldo
(Cleveland State University)
Cleveland, Ohio
Kenneth B. Clark
Paul Courant
(University of Michigan)
New York, New York
Ann Arbor, Michigan
Robert L. Crain
(RAND Corp.)
Los Angeles, California
Robert A. Dentler
(Boston University)
Boston, Massachusetts
G. Franklin Edwards
(Howard University)
Washington, D. C.
Edgar G. Epps
(University of Chicago)
Chicago, Illinois
Reynolds Farley
(University of Michigan)
Ann Arbor, Michigan
Joe R. Feagin
(University of Texas)
Austin, Texas
John Hope Franklin
(University of Chicago)
Chicago, Illinois
Eli Ginzberg
(Columbia University)
New York, New York
Robert L. Green
(Michigan State University)
East Lansing, Michigan
* Affiliation for all individuals is for identification purposes
only.
27a
A ppendix
Charles Grigg Tallahassee, Florida
(Florida State University)
Amos Hawley Chapel Hill, North Carolina
(University of North Carolina)
Joyce A. Ladner
(Hunter College)
James W. Loewen
(University of Vermont and
Center for National
Policy Review)
Cora B. Marrett
(University of Wisconsin)
James M. McPartland
(Johns Hopkins University)
Dorothy K. Newman
Gary Orfield
(University of Illinois)
Diana Pearce
(University of Illinois)
Thomas F. Pettigrew
(Harvard University)
Ray C. Rist
(Cornell University)
Christine II. Rossell
(Boston University)
Juliet Saltman
(Kent State University)
Julian Samora
(University of Notre Dame)
M. Brewster Smith
(University of California)
Michael J. Stolee
(University of Wisconsin)
D. Garth Taylor
(National Opinion Research
Center and University
of Chicago)
New York, New York
Washington, D. C.
Madison, Wisconsin
Baltimore, Maryland
Chevy Chase, Maryland
Champaign, Illinois
Chicago, Illinois
Cambridge, Massachusetts
Ithaca, New York
Boston, Massachusetts
Akron, Ohio
South Bend, Indiana
Santa Cruz, California
Milwaukee, Wisconsin
Chicago, Illinois
A ppend ix
Karl E. Taeuber
(University of Wisconsin)
Phyllis A. Wallace
(Massachusetts Institute of
Technology)
Robert C. Weaver
(Hunter College)
Robin W. Williams
(Cornell University)
Franklin D. Wilson
(University of Wisconsin)
J. Milton Yinger
(Oberlin College)
Madison, Wisconsin
Cambridge, Massachusetts
New York, New York
Ithaca, New York
Madison, Wisconsin
Oberlin, Ohio
Dated: March 21, 1979
*
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