Brief on the Merits in Support of Petitioners Submitted Amicus Curiae with Appendix

    IN THE

Supreme Court of The United States
October Term, 1973

WILLIAM G. MILLIKEN, et al., )
Petitioners,) 

vs. )
RONALD G. BRADLEY, et al., )

Respondents,)
)

ALLEN PARK PUBLIC SCHOOLS, et al., )
Petitioners,) 

vs. )
RONALD G. BRADLEY, et al., )

Respondents,)
)

THE GROSSE POINTE PUBLIC SCHOOL) 
SYSTEM, et al., )

Petitioners,) 
vs. )

RONALD G. BRADLEY, et al., )
Respondents.)

BRIEF ON THE MERITS IN SUPPORT 
OF PETITIONERS SUBMITTED AMICUS  
CURIAE BY THE STATE OF INDIANA

T heodore L. Sendak 
Attorney General of Indiana
D onald P. B ogakd 
Deputy Attorney General
W lliam  F. H arvey 
Special Counsel for the 
Attorney General
Office of Indiana Attorney General 
219 State House 
Indianapolis, Indiana 46204 
Telephone: (317) 633-4076

No. 73-434

No. 73-435

No. 73-436

Central Publishing Company. Inc., Indianapolis. Ind. 46206





Page

Table of Authorities .......................................................  iii

Opinion Below ................................................................  2

Jurisdiction ....................     2

Consent of Parties ......................................................... 2

Questions Presented ....................................  2

Constitutional and Statutory Provisions Involved . . .  3

Interest of the Amicus Curiae.....................................  6
A. Michigan .............     10
B. Indiana ................................................................ 11

1. Indianapolis Public School System, Marion
County, Indiana...........................................  12

2. State Officials in Indiana..........................  13
3. Additional School Districts Within Marion

County, Indiana .........................................  13
4. Additional School Districts Outside Marion

County, Indiana .........................................  14
C. Indiana and Michigan Compared ................... 18
D. The Metropolitan Rem edy................................  19

Statement of the Case ................................................... 21

Argument I A Federal District Court does not have 
the power to order the transfer or ex­
change of students from one school dis-

TABLE OF CONTENTS

l



TABLE OF CONTENTS— Continued

Page

triet found to be guilty of de jure seg­
regation across political boundaries to 
other school district found not to be 
guilty of any de jure violations...........  22

Argument II The Fourteenth Amendment does not 
require a state to remove black children 
from schools in which they constitute 
a majority of the students enrolled, or 
a substantial minority, in order to mix 
them with white children in other school 
districts, so that the black children 
will always be in a racial minority . . . .  24
A The Constitutional Definition . . . .  24
B A School Boards Duty ...................  27
C This Case and the New Constitution 

for Metropolitan Am erica............... 28

Conclusion ........................................................................ 30

Certificate of Service ....................................   32

li



TABLE OF AUTHORITIES

Cases Page
Bradley v. Milliken, (6th Cir., 1973) 484 F.2d 215 . . .  2
Bradley v. School Board of Richmond, Virginia, 462 

F.2d 1058 (4th Cir. 1972) ............................8,23,27,29
Brown v. Board of Education, 347 U.S. 483 (1954) . . .  8,

21, 24, 26
Brunson v. Board of Trustees, 429 F.2d 820 (4th Cir. 

19?0) ............  20,29
Beal v. Board of Education, 369 F. 2d 55 (6th 

Cir., 1965) .................    27
Downs v. Board of Education, 366 F.2d 988 (10th 

Cir., 1964) .................................................... ..............  27
Gayle v. Browder, 352 U.S. 903 (1956) ..................... 26
Green v. County School Board of New Kent, County,

Vir., 391 U.S. 430 (1968) ..................................... 15,21
Haney v. County Board of Education of Seiver County 

410 F.2d 920 (8th Cir. 1969) .................................. 27
Higgins v. Bd. of Ed. City of Grand Rapids, Mich.,

No. CA 6386 (W.D. Mich. July 18, 1973) ...............  28
Holmes v. City of Atlanta, 350 U.S. 879 (1955) .......  26
Keyes v. School District No. 1, 93 S.Ct. 2686 (1973) . .8, 21,

24, 26,28
Lee v. Macon County Board of Education, 448 F.2d 

746 (5th Cir. 1971) ..................................................  27
Mapp v. Bd. of Ed. of Chattanooga, 329 F. Supp. 1374

(E.D. Tenn. 1971) 1378 .............................. ............. 28
Mayor and City Council of Baltimore City v. Dawson,

350 U.S. 877 (1955) ................................................. 26

in



TABLE OF AUTHORITIES— Continued

Cases—continued Page
Muir v. Louisville Park Theatrical Assn., 347 U.S.

971 (1954) .................................................................... 26
Northcross v. Board of Education of Memphis City 

Schools, 397 U.S. 232 (1970) ....... ..................... .. 29
Northcross v. Bd. of Ed. Memphis, Tenn., No. 73-1954;

No. 73-1667 (6th Cir., Dec. 4 ,1 9 7 3 )......................... 21
Offerman v. Nitkowski, 378 F. 2d 22 (2nd Cir., 1967) .. 27
Plessy v. Ferguson, 163 U.S. 537 (1896) ..................... 21
Raney v. Board of Education of Gould School Dist.,

391 U.S. 443 (1968) ..... ..................................   29
San Antonio Independent School Dist. v. Rodriquez,

411 U.S. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 8 ,  30
Sealy v. Dept, of Public Instruction, 252 F. 2d 898 

(3rd Cir., 1957) ............................... .............. 27
Spencer v. Kugler, 326 F. Snpp. 1235, (D.N.J. 

1971) ...................   ...9,23,26,30
Springfield School Committee v. Barksdale, 348 F.2d 

261 (1st Cir., 1965) ............. ............................... 27
Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971) .......... ...........11,15, 21,22, 23, 25, 26,27
ESA v. Board of School Commissioners of the City of 

Indianapolis (S.D. Ind., 1971) 332 F. Supp. 655 ..6,11
USA & Buckley et al v. Board of School Commis­

sioners of the City of Indianapolis, et al. (No. 73- 
1968 through 73-1984) ..................................6, 9,10,14, 20

U.S. v. Scotland Neck City Board of Education, 407 
U.S. 484 (1972) ........................................................... 29

Wright v. Council of Emporia, 407 U.S. 451 (1972) 
Constitution of State of Indiana, Article 8, 
Section 1 ............. ................. .................. . 27, 29

IV



Cases—continued Page

CONSTITUTIONAL PROVISIONS
Article 8, Section 1 of the Constitution of the State 

of Indiana ...................................................................  7
Fifth Amendment to the United States Constitution .. 3
Fourteenth Amendment to the United States Con­

stitution .......................................................4,12,26,28,31
Tenth Amendment to the United States Constitution .. 29

STATUTES
28 U.S.C. §1254(1) . . . . _ ...........................................  2
28 U.S.C. §1343(3) ......................................................  12
28 U.S.C. § 2201 .............................................................. 12
28 U.S.C. § 2202 .............................................................. 12
42 U.S.C. §1983 ............................................................  12
42 U.S.C. § 1988 .............................................................. 12
42 U.S.C. § 2000c-6 ........................................................  5
Rule 42 of the Rules of the Supreme Court of the 

United States .............................................................. 2

OTHER AUTHORITIES
United States Department of HEW 

Digest of Educational Statistics, 1971 ed..................  30

TABLE OF AUTHORITIES— Continued

v





IN THE

Supreme Court of The United States
October Term, 1973

WILLIAM G. MILLIKEN, et al., )
Petitioners,)

vs. ) No. 73-434
RONALD G. BRADLEY, et al., )

Respondents,)

ALLEN PARK PUBLIC SCHOOLS, et al., )
Petitioners,)

vs. ) No. 73-435
RONALD G. BRADLEY, et al., )

Respondents,)

THE GROSSE POINTE PUBLIC SCHOOL)
SYSTEM, et al., )

Petitioners,)
vs. ) No. 73-436

RONALD G. BRADLEY, et al., )
Respondents,)

BRIEF ON THE MERITS IN SUPPORT 
OF PETITIONERS SUBMITTED AMICUS 
CURIAE BY THE STATE OF INDIANA

The State of Indiana, by Theodore L. Sendak, Attorney 
General of Indiana, Donald P. Bogard, Deputy Attorney 
General and William F. Harvey, Special Counsel for the 
Attorney General, pursuant to Rule 42 of the Rules of the
Supreme Court of the United States, submits its brief 
amicus curiae in support of the Petitioners in the above- 
entitled cause.

1



2

OPINION BELOW

The opinion below, filed by the United States Court of 
Appeals for the Sixth Circuit (hereafter Sixth Circuit) is 
reported as Bradley v. Milliken, (6th Cir., 1973) 484 F.2d 
215 (Certiorari Joint Appendix pp. 110a-240a) (hereafter 
cert. app.).

JURISDICTION

The United States Supreme Court has jurisdiction to 
review this case by writ of certiorari pursuant to 28 U.S.C. 
§ 1254(1), and has accepted it for such purposes by grant­
ing said writ on November 19, 1973.

CONSENT OF PARTIES

This amicus brief by the State of Indiana is filed pur­
suant to Rule 42 of the Rules of the United States Supreme 
Court and consent of the parties is not required pursuant to 
Rule 42(4).

QUESTIONS PRESENTED

I.
Whether, in a school desegregation case involving a 

metropolitan area in which one school system has been 
found to be de jure segregated and all other districts found 
not to be de jure segregated, a federal district court can 
enter orders regarding the transfer or exchange of pupils, 
against those other school systems or districts which are 
geographically close to the segregated system when there 
is no finding against those school systems or districts, no 
finding that they were formed as a part of a state sup­
ported de jure segregated system, and no finding that they 
exist in order to perpetuate such a system, when those



3

orders have the effect of developing massive busing and 
student transfer programs among the various districts 
and which were entered solely to establish a court- 
acceptable ‘ ‘ deseg’regation”  plan in the one segregated 
school system?

II.

Whether the state can be compelled to entirely reorga­
nize local school districts in metropolitan areas within the 
state in order to remove only black children from one school 
system and only white children from another school sys­
tem and exchange them between systems when only one 
school system was found to be illegally segregated, when 
there were no findings against any other school system 
and when the only alleged “ act”  of the “ State”  was pur­
ported to have been committed entirely within the ille­
gally segregated system, but which in fact had no causal 
connection whatever upon racial percentages or numbers 
in any school system.

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution 
provides as follows:

“ No person shall be held to answer for a capital, 
or otherwise infamous crime, unless on a presentment 
or indictment by a grand jury, except in cases arising 
in the land or naval forces, or in the militia, when in 
actual service in time of war or public danger; nor 
shall any person be subject for the same offence to be 
twice put in jeopardy of life or limb; nor shall be com­
pelled in any criminal case to be a witness against him­
self ; nor be deprived of life, liberty, or property, with­
out due process of law; nor shall private property be 
taken for public use, without just compensation.



4

The Fourteenth Amendment to the United States Con­
stitution provides in part as follows:

§ 1. All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citi­
zens of the United States and of the state wherein they 
reside. No state shall make or enforce any law which 
shall abridge the privileges or immunities of citizens 
of the United States; nor shall any state deprive any 
person of life, liberty, or property, without due process 
of law; nor deny to any person within its jurisdiction 
the equal protection of the laws.

§ 5. The congress shall have power to enforce, by 
appropriate legislation, the provisions of this article.

The Civil Right Act of 1964, 42 U.S.C. § 2000c provides 
in part as follows:

§ 2000c. Definitions 
As used in this subchapter—

(a) “ Commissioner”  means the Commissioner of 
education.

(b) “ Desegregation”  means the assignment of stu­
dents to public schools and within such schools without 
regard to their race, color, religion, or national origin, 
but “ desegregation”  shall not mean the assignment 
of students to public schools in order to overcome 
racial imbalance.

(c) “ Public school”  means any elementary or sec­
ondary educational institution, and “ public college”  
means any institution of higher education or any tech­
nical or vocational school above the secondary school 
level, provided that such public school or public col­
lege is operated by a State, subdivision of a State, or 
governmental agency within a State, or operated wholly 
or predominantly from or through the use of govern­
mental funds or property, or funds or property derived 
from a governmental source.



5

(d) “ School board’ ’ means any agency or agencies 
which administer a system of one or more public 
schools and any other agency which is responsible for 
the assignment of students to or within such system. 
Pub.L. 88-352, Title IV, § 401, July 2,1964, 78 Stat. 246.
§ 2000c-6..

(a) Whenever the Attorney General receives a com­
plaint in writing—

(1) signed by a parent or group of parents to the 
effect that his or their minor children, as members 
of a class of persons similarly situated, are being 
deprived by a school board of the equal protection 
of the laws, . . .

and the Attorney General believes the complaint is 
meritorious and certifies . . . that the institution of 
any action will materially further the orderly achieve­
ment of desegregation in public education, the Attor­
ney General is authorized, after giving notice of such 
complaint to the appropriate school board or college 
authority and after certifying that he is satisfied that 
such board or authority has had a reasonable time to 
adjust the conditions alleged in such complaint, to in­
stitute for or in the name of the United States a civil 
action in any appropriate district court of the United 
States against such parties and for such relief as 
may be appropriate, and such court shall have and shall 
exercise jurisdiction of proceedings instituted pur­
suant to this section, provided that nothing herein 
shall empower any official or court of the United 
States to issue any order seeking to achieve a racial 
balance in any school by requiring the transportation 
of pupils or students from one school to another or one 
school district to another in order to achieve such 
racial balance, or otherwise enlarge the existing power 
of the court to insure compliance with constitutional 
standards. The Attorney General may implead as de­
fendants such additional parties as are or become nec­
essary to the grant of effective relief hereunder.



6

INTEREST OF THE AMICUS CURIAE

The State of Indiana submits its brief amicus curiae 
since this case involves similar questions of law to a case 
arising out of Indiana which is currently on appeal to the 
United States Court of Appeals for the Seventh Circuit 
(hereafter Seventh Circuit). U.S.A. & Buckley et al. v. 
Board of School Commissioners of the City of Indianapolis, 
et al., (No. 73-1968 through 73-1984) (hereafter Indianap­
olis). In that case neither the State of Indiana nor the In­
diana General Assembly were named parties. However, 
named as added defendants in the court below—the United 
States District Court for the Southern District of Indiana 
(hereafter District Court)—were Otis R. Bowen, as Gov­
ernor of the State of Indiana, Theodore L. Sendak, as At­
torney General of the State of Indiana, Harold H. Negley, 
as Superintendent of Public Instruction of the State of In­
diana, and the Indiana State Board of Education, a public 
corporate body (hereafter State Defendants). The State 
Defendants were added to the lawsuit after the District 
Court had made a finding of de jure segregation on the 
part of the Indianapolis Public School System (hereafter 
IPS), 332 P. Supp. 655, (1971), and which was properly on 
appeal to the Seventh Circuit at the time the State Defend­
ants and nineteen school districts were added as 
defendants.

The Indiana case, like the case at bar, is an extremely 
complex piece of school desegregation litigation involving 
the transfer or exchange of pupils from IPS which has been 
found guilty of de jure segregation, across township, 
county, city, and town boundaries to twenty-three other 
school districts in eight (8) counties found not to be guilty 
of any de jure violations.



7

The State of Indiana, pursuant to its Constitution, 
Article 8, Section 1 (1851), and statutes duly enacted, has 
provided for a system of common schools wherein tuition 
shall be without charge and “ equally open to all.”  The ef­
fectuation of those provisions has always been in the de­
velopment and control of the local schools in the State of 
Indiana, since school systems are created locally, controlled 
locally, and are primarily financed locally (by issuance of 
their own school bonds and the taxation of local property). 
The function of the State agencies in education, such as the 
Office of the Superintendent of Public Instruction and the 
Indiana State Board of Education, is a service function 
designed to assist the local schools in their various indi­
vidual programs.

In the Indianapolis Standard Metropolitan Statistical 
Area (hereafter ISMS A) there are 44 independent school 
systems with a total 1972 enrollment of approximately 
261,482 school children. Twenty-one (21) of those school 
systems are now involved in litigation in the District Court 
and in the Seventh Circuit in a case which is similar to 
this case. The enrollment of those twenty-one (21) school 
systems for 1972 was approximately 205,175 school children, 
(attached appendix following p. A-63).

The disposition of the Detroit case in the Sixth Circuit 
has caused a very serious threat to the continued existence 
of the school systems in the ISMSA, many of which have 
existed in their present or predecessor form since before 
the Civil War, and as early as 1838.

The primary interest of the amicus is in explaining to 
this Court how the Detroit case affects those Indiana school 
systems, and why the Sixth Circuit in the decision below 
was incorrect and should be reversed.

The purpose of the amicus is also to suggest to this Court 
that the decision now presented for review is of a signifi-



8

cance which equals that of Brown v. Board of Education, 
347 U.S. 483 (1954). The result here can have the effect of 
placing almost the whole of metropolitan development in 
the United States under a federal judicial superin­
tendency, and such a case previously has not been before 
this Court. This effect has staggering implications, as is 
evident from examining the attached United States Bureau 
of Census Charts of urbanized areas in Indiana, Illinois 
and Michigan from the 1970 census (attached appendix 
following p. A-63).

The amicus brief is limited in its primary discussion to 
that part of the Court of Appeals opinion which permits the 
development of a “ Metropolitan Area Desegregation Plan,’ 
484 F.2d 215, 250 Cert. App. at page 173a, for the Detroit 
Metropolitan area.

In this case, unlike Keyes v. School District No. 1, 93
S.Ct. 2686 (1973), there are multi-school districts involved, 
against which no finding of racial discrimination has been 
entered, but like Keyes, there was a finding of discrimina­
tion in one school district. Unlike Bradley v. School Board 
of Richmond, Virginia, 462 F.2d 1058 (4th Cir. 1972), a ff’d, 
93 S.Ct. 1952 (1973), there is no history of racial discrimi­
nation in the additional school district defendant-inter- 
venors, and no finding that the out-of-Detroit City schools 
are or ever have been anything other than integrated 
school systems. Similar to Richmond is the percentage of 
blacks in the city school systems, with the Detroit School 
City being about 64% black, and Richmond about 70% 
black. Also, as in Richmond, the Detroit school city can 
desegregate now and eliminate racially identifiable schools. 
In the Indianapolis case, the IPS schools are 40% hlack 
and 60% white.



9

This case commenced as a school desegregation case 
against the Detroit City School system, and the district 
court wishes to end it as a case which alters the racial 
imbalance between that school system and the added de- 
fendant-intervenors. In that way it is much like the Indi­
anapolis case (see attached Appendix, pp. 11 and 12), and 
much like Spencer v. Kugler, 326 F.Supp. 1235, (D.N.J. 
1971), a ff ’d, 404 U.S. 1027 (1972), in which this Court re­
jected an attack made upon the racial imbalance found in 
New Jersey school systems.

The essential fact in this case is not that the Detroit City 
schools were segregated, according to the district court, but 
that the added school systems were not found to be segre­
gated. Those school systems are to carry the judicial bur­
den. They were not heard, were not tried, and were not 
present at trial; no evidence was offered against them, and 
no findings were made against them. Nevertheless, they 
are the subject of the district court’s orders in Detroit.

The critical factual difference between this case and 
Indianapolis is that in the Indianapolis case, after IPS had 
been found to be guilty of de jure segregation in the first 
lawsuit (see attached appendix p. A-5) and had appealed 
that finding to the Seventh Circuit, the added school de­
fendants and the State Defendants were brought into court 
in a second lawsuit (see attached appendix p. A-6) by a 
Complaint in Intervention and an Amended Complaint in 
Intervention and did present evidence, did have an oppor­
tunity to cross examine, and those added school districts 
were found not to he segregated school systems. Neverthe­
less, principally on the basis of the Sixth Circuit’s decision 
in this case (see attached appendix, p. A-22) orders were 
entered against the added school districts. In the most



10

recent district court entry in Indianapolis (see Supple­
mental Decision, attached appendix, p. A-61) the court has 
“ delayed”  action (as in Michigan), pending action by the 
Indiana General Assembly, and if the General Assembly 
‘ ‘ defaults ’ ’ then the district court has stated it will act. As 
in Michigan there was no constitutional violation by any 
added defendant school district, but substantial orders 
have been entered against them which have been vacated, 
but which on February 16, 1974, will rise in an even greater 
magnitude than as originally ordered.

A.

Michigan

There are two categories of defendants in this case when 
examined pursuant to the requirement that a constitutional 
wrong be found. First, there are the state defendants; the 
Governor, the Attorney General, the State Board of Edu­
cation, and the Superintendent of the Detroit Public 
Schools. The district court entered findings of de jure 
segregation against the Detroit City defendants, with in­
volvement by the State of Michigan officials, 338 F.Supp. 
582, a ff’d, 484 F.2d 215, 258 (1973), Cert, App. 189a.

Secondly, there is the “ Wayne, Oakland, and Macomb 
counties group, ’ ’ which consists of 53 separate and inde­
pendent school systems. This group includes 780,000 school 
children and their parents, and could possibly include as 
many as 85 separate and independent school systems 
with an enrollment of approximately 1,000,000 pupils cov­
ering an area of approximately 1,952 square miles (Peti­
tion for Certiorari, Michigan, pages 5, 19, 52). Against this 
group, except for the School City of Detroit, there were 
no findings of illegal segregation entered, and in fact no 
such findings at all.



11

Nevertheless, because that group of school systems and 
school children exist in close proximity to the Detroit 
Public Schools they were made available for effecting a 
Detroit remedy. In short, a remedy has been imposed 
without a wrong. Compare, Swann v. Charlotte-Mecklen- 
burg Board of Education, 402 U.S. 1 (1971).

B.

Indiana

The Indianapolis case commenced on May 31, 1968, when 
the United States of America filed a Complaint in the 
District Court which was assigned cause number IP-68-C- 
225. The action by the United States was brought pursuant 
to 42 U.S.C. §2000c-6(a) and (b), and was tried by the 
Court on July 12-21, 1971, Defendants in the aforemen­
tioned complaint were The Board of School Commissioners 
of the City of Indianapolis, Indiana, its Superintendent of 
Schools, and members of its Board.

On August 18, 1971, the Court issued its ‘ ‘ Memorandum 
of Decision”  permanently enjoining defendants, their suc­
cessors in office, officers, agents, employees and all those 
in active concert or participation with them from “  dis­
criminating on the basis of race in the operation of the 
Indianapolis School System,”  and further ordered the 
defendants to take seven steps to “ fulfill their affirmative 
duty to achieve a nondiscriminatory school system.”  332 F. 
Supp. 655, 680. Affirmed 474 F.2d 81 (7th Cir., 1973). 
Cert, denied 407 U.S. 920, 93 S.Ct. 3066 (1973).

A part of the District Court’s findings in the first Indi­
anapolis case was that that school board constructed three 
high school buildings in 1961, 1963, and 1967, the placement 
of which constituted acts of de jure segregation.



12

On September 10, 1971, the defendants filed their Notice 
of Appeal to this Court from the final judgment entered 
on August 18, 1971.

On September 14, 1971, a “ Motion to Intervene as Party 
Plaintiff”  and a Complaint in Intervention were filed by 
Donny Brurell Buckley and Alycia Marquese Buckley who 
purported to intervene as representatives of a class com­
prised of Negro school age children in Marion County, 
Indiana who attended only IPS.

On October 21, 1971, an Amended Complaint was filed by 
intervening plaintiffs which named Edgar D. Whitcomb, as 
Governor of the State of Indiana, Theodore L. Sendak, as 
Attorney General of the State of Indiana, and The Indiana 
State Board of Education, a public corporate body, as 
added defendants. Jurisdiction under the Amended Com­
plaint was extended to include 42 U.S.C. §§ 1983 and 1988, 
28 U.S.C. §§ 1343(3), 2201 and 2202, and the Fourteenth 
Amendment to the United States Constitution,

A trial was held on the Amended Complaint and An­
swers thereto on June 12, 1973 through July 6, 1973, and 
was reopened by the court on its own motion on July 18, 
1973. In that trial the parties were as follows:

1.
Indianapolis Public School System 

Marion County, Indiana
The IPS system is one of eleven (11) in Marion 

County, Indiana, and is the twenty-nineth largest in 
the United States. In its 1972-73 enrollment the IPS 
system had 97,833 students with a racial composition 
of 60 percent white and 40 percent Mach. If re­
organized utilizing all available students in the 
ISMSA it would be the fifth largest school district 
in the United States, fitting between Philadelphia and 
the current Detroit system.



13

Seventeen days before the commencement of the 
second trial, the District Court held its findings in 
the first trial were res judicata in the second trial, 
hence the findings against IPS stood as before.

2.

State Officials in Indiana
In the second trial the intervening plaintiffs added 

the Governor, the Attorney General, the Indiana State 
Board of Education, and the Superintendent of Public 
Instruction as added defendants. Findings were 
entered against only the latter two parties, and those 
findings were that the findings against IPS in the 
first trial, i.e., that the placement of three high schools 
constructed in 1961, 1963, and 1967, constituted acts 
of de jure segregation which were “ imputed”  to the 
state officials because there was in the State Board 
of Education a power to review and approve site selec­
tions for purposes of insuring minimum health and 
safety standards. These were the only findings against 
any State officials in Indiana. (Attached appendix, 
p. A-22)

3.

Additional School Districts Within 
Marion County, Indiana

There are ten (10) school systems located in Marion 
County, Indiana, in addition to IPS. Of those, eight 
(8) are township schools and two are school systems 
for the City of Beech Grove, Indiana and the Town 
of Speedway, Indiana. Their combined enrollment in 
1972-73 was approximately 77,611 school children. 
These school systems have never been illegally segre­
gated nor have they ever operated dual school systems, 
and the District Court so found. (Attached appendix, 
p. A-23).



14

Additional School Districts Outside 
Marion County, Indiana

There are ten (10) school districts located outside 
Marion County, Indiana, in six (6) other counties, 
which were never a part of any Marion County school 
system, and which, in several instances, have existed 
since before the Civil War. Their combined 1972-73 
enrollment was approximately 27,131 school children. 
These schools have never been segregated nor have 
they ever operated dual school systems, and the 
District Court so found. (Attached appendix, p. 
A-23).

On July 20, 1973 the District Court issued its “  Memo­
randum of Decision.”  See attached Appendix, p. A-l. In 
that Decision the Court found acts of de jure segregation 
on the part of the Indianapolis Public Schools in the place­
ment of three (3) high schools, and that those acts were 
imputed to the Indiana State Board of Education and the 
State Superintendent of Public Instruction. However, the 
Court found that there were no de jure acts of segregation 
attributable to the added defendant school districts. The 
District Court also found that the desegregation of the In­
dianapolis Public School System cannot be accomplished 
with its own boundaries primarily because of the possibility 
of resegregation “ within a matter of two or three years.”

The District Court in the Indianapolis case stated that 
it was possible to desegregate IPS within its own boun­
daries, stating at page 7 of its Decision:

“ In other words, it is apparent that as a sheer exer­
cise in mathematics, it would be possible for this Court 
to order desegregation of IPS on a 58.9%-41.1% basis, 
or some basis similar thereto, so that no school could, 
for the time being, be racially identifiable as a black 
school. . . ”  (attached appendix p. A-12).

4.



15

But, contrary to Green v. County School Board of New 
Kent County, Virginia, 391 U.S. 430 (1968) and Swann v. 
Charlotte-Mecklenburg Board of Education, supra, the Dis­
trict Court was not looking for a plan that promises real­
istically to work now, but one that promises to work for all 
time.

Further, in that Decision, the District Court stated in 
Conclusion of Law number 2 on page 22 (attached appen­
dix, p. A-26) :

“ The Superintendent of Public Instruction, The In­
diana State Board of Education, and other responsible 
agents and agencies of the State of Indiana, and the 
State itself, have each practiced de jure segregation, 
both by commission and omission.”

yet the Court never ordered any of the above to do any 
specific acts.

In part V, page 17 of the Memorandum of Decision (at­
tached appendix, p. A-23), the District Court stated:

“ There was no evidence that any of the added de­
fendant school corporations have committed acts of 
de jure segregation directed against Negro students 
living within their respective borders.”

yet the Court ordered that each of the added defendant 
school corporations was directed to accept Negro transfer 
students from the Indianapolis Public Schools at the rate 
of 5% of their 1972-73 enrollment, except for Washington 
Township and Pike Township where the rates were 1% 
and 2% respectively.

Also, the Indianapolis Public School system was ordered 
to rearrange the enrollment patterns of its elementary 
schools so that each school, at the beginning of the 1973- 
74 school year, had a minimum Negro enrollment of 15%.



Four (4) separate motions for stay of the order of July 
20, 1973 were filed by the defendants and added defendants 
before August 6, 1973, and on August 8, 1973, in open 
court, the District Court orally stayed said order as it per­
tained to the transfer of IPS students to the added defend­
ants, but did not stay that part of the Order that pertained 
to the Indianapolis Public Schools.

Notices of appeal were filled by the original defendants 
and all added defendants by August 16, 1973. However, 
on September 4, 1973, the Court granted intervening plain­
tiffs’ motion for leave to interplead a second class of added 
defendants, and another Amended Complaint was filed on 
that date. The United States of America, the Original plain­
tiff, filed its notice of appeal on September 18, 1973.

Briefs were filed in the Seventh Circuit by all appellants 
on or before December 10, 1973. However, on December 6, 
1973, the District Court issued its “ Supplemental Memo­
randum of Decision”  (hereafter Supplemental Decision) 
which vacated the orders in the July 20, 1973, Decision that 
had been stayed on August 8, 1973, regarding the transfer 
of pupils from IPS to the added defendant School Districts. 
See attached appendix, p. A-39. In that Supplemental Deci­
sion the District Court gave the Indiana General Assembly 
until the end of the 1974 legislative session or February 
15, 1974, whichever comes first, to enact a metropolitan 
school desegregation plan. If the General Assembly should 
“ default”  in its “ duty”  to find a permanent solution to 
the desegregation of IPS into twenty-three (23) separate 
and distinct school districts found not to be guilty of any 
de jure segregation, then the District Court will devise its 
own plan.

Thus, even though neither the State of Indiana nor the 
General Assembly were parties to the foregoing litigation,



17

it is certain that if the General Assembly does not enact 
some type of metropolitan plan which is suitable to the Dis­
trict Court the Court will draft such a plan. Therefore, the 
Indianapolis metropolitan area faces a major school re­
organization which could include eight (8) counties and 
from twenty-four (24) to forty-four (44) separate and in­
dependent school districts with a total pupil population of 
from approximately 205,000 students to 260,000 students, 
all of which would be directed by a district court judge 
whom the State of Indiana would assert is totally without 
power to so act.

There was no contention made that the Indianapolis 
Public School system can not now effect a desegregation 
plan, or that it is not prepared to do so. The Indianapolis 
federal district court, like Detroit, has involved the addi­
tional school system because it wants a plan which once 
implemented will “ work forever”  and which will place 
black students in a perpetual minority in all schools in the 
Indianapolis metropolitan area.

The District Court further demands this in face of the 
fact that the IPS system has about 9 percent of the entire 
assessed school valuation for the State of Indiana, and that 
it has the financial capacity to raise over $100,000,000 for 
the construction of new schools, should it decide to do so. 
(See attached appendix following p. A-63).

In short, that the IPS system can now desegregate is 
not contestable. The concern of the District Court was that 
it might not work forever, and it has entered orders against 
the additional school defendants after finding that they 
did not commit acts of discrimination and were not ille­
gally segregated or de jure segregated school systems.



18

C.

Indiana and Michigan Compared

First, concerning the additional school defendants in 
these cases, in Michigan there was no evidence and no find­
ings against those school systems. In Indiana the District 
Court found that they were not de jure segregated sys­
tems. In each case the district court has either entered 
orders against them, or will do so, regardless of the ab­
sence of evidence or the finding of no discrimination by 
them.

Secondly, concerning the state school boards and offi­
cials, in Indiana the only connection with the “ State”  
(which was never a party to the action) was the site ap­
proval given to three high schools in the IPS system. In 
Michigan, the principal connection was the enactment of 
a statute affecting the Detroit Public School system. In 
neither case was there any showing that the “ state acts”  
had any causal connection to the racial composition of 
either school system, and there was of course no showing, 
nor could there have been, that in either Michigan or Indi­
ana the “ state acts”  had any effect in any other school 
district in either the Detroit or Indianapolis area. In 
neither case is the argument made that the existence of the 
school district themselves caused racial discrimination and 
segregation, or that they were created for those purposes 
or to impede the removal of the vestiges of a dual system. 
The Sixth Circuit held however, that the absence of a dual 
system among school districts was insignificant, because 
it “ follows logically that existing boundary lines cannot 
be frozen for an unconstitutional purposes”  484 F.2d at 
250.

The above-quoted statement is of course true. But either 
the Sixth Circuit’s statement has no relevance to this case,



or, if it remains a controlling holding, the fact that the 
added school defendants in Detroit were not fonnd to be 
dlial school systems is no longer significant to this type of 
litigation. If this is to become the law from this Court, 
then federal equity power in this type of litigation is no 
longer founded upon the duty to desegregate, after a find­
ing of illegal state compelled segregation.

D.

The Metropolitan Remedy

The essential fact in the Indiana case is not that the 
Indianapolis Public School system was illegally segre­
gated, or that it can now be desegregated. It is that the 
additional school district defendants were not segregated 
and the district court entered a finding to that effect. After 
that finding it entered orders against them.

The process by which this was accomplished was the 
same process used by the district court in Detroit. It is as 
follows: (1) education is a state public function because it 
is developed pursuant to state law from the state govern­
mental power; (2) acts by state officials are public acts; 
(3) acts by local school boards are imputable to state edu­
cation officials, whenever they occur with or without 
knowledge on the part of the state education official; (4) 
when the imputed act has occurred, or when a de jure act 
is taken by the state official or legislature, then the dis­
trict court has judicial power over the public function of 
education in as many school systems as are “ conveniently”  
reached by a school bus; and (5) that that power will be 
asserted unless the state acts in a way consistent with the 
district court’s desire.

The district court in Detroit would effect a metropolitan 
remedy [“ provided, however, that existing administra-



20

tive, financial, contractual, property and governance ar­
rangement shall be examined, and recommendations for 
their temporary and permanent retention or modification 
shall be made * * *”  345 F.Supp. 914, at 919, a ff ’d but 
partly vacated, 484 F.2d at page 252 (1973)], and the dis­
trict court in Indianapolis would effect the same type of 
remedy, (see attached appendix, p. A-61).

This will occur not because of segregation in the school 
systems in those two cities, nor because among those sys­
tems segregation existed, nor because they were created to 
effect racial discrimination. It will occur, in fact, because 
those district courts believe it is desirable to submerge 
black students forever in a minority status in the public 
school systems in the respective areas. See attached ap­
pendix, pp. A-12 and A-58.

The White-Majority Thesis has been rejected in Brunson 
v. Board of Trustees, 429 F.2d 820, 826 (4th Cir. 1970) 
(Judge Sobeloff, concurring) :

“ The invidious nature of the Pettigrew thesis, ad­
vanced by the dissent in the present case, thus emerges. 
Its central proposition is that the value of a school de­
pends on the characteristics of a majority of its stu­
dents and superiority is related to whiteness, inferior­
ity to blackness. Although the theory is couched in 
terms of ‘ socio-economic class’ and the necessity for 
the creation of a ‘middle-class milieu,’ nevertheless, 
at bottom it rests on the generalization that, educa­
tionally speaking, white pupils are somehow better or 
more desirable than black pupils.”

Thus, the essence of this case, as well as the case in Indi­
anapolis, is whether the federal judiciary shall remove local 
control of school systems and school districts, even in the 
absence of racial discrimination in those schools, because 
there is a heavy black enrollment (40% black in Indian-



apolis and 64% black in Detroit) in the city school system 
involved in the litigation which itself may or may not be 
a segregated system. Compare, Northcross v. Bd. of Ed. 
Memphis, Term., No. 73-1954; No. 73-1667 (6th Cir., Dec. 4, 
1973).

Plaintiffs in such cases will ask for the consolidation 
and the redistricting of schools, and for the busing of stu­
dents to and from systems which were not segregated. That 
will mean disregarding governmental boundary lines, not 
only for pupil placement but for teacher assignment, for 
building construction and the taxable base which supports 
that construction, and for both administrative and voter 
control also.

These cases would instigate a more major political and 
social upheaval than the progression either from the “  sepa­
rate but equal”  doctrine of Plessy v. Ferguson, 163 U.S. 
537 (1896), to the “ separate is inherently unequal”  doc­
trine of Brown 1, supra, or from “ freedom of choice”  of 
the post-Brown era to the “ affirmative duty”  of Green v. 
County School Board of New Kent County, Virginia, 391 
U.S. 430 (1968), Swann, supra, and Keyes, supra.

STATEMENT OF THE CASE

The amicus accepts the statement of the case as set out 
by Petitioners on brief to this Court.

21



22

ARGUMENT

I.
A FEDERAL DISTRICT COURT DOES NOT HAVE 
THE POWER TO ORDER THE TRANSFER OR 
EXCHANGE OF STUDENTS FROM ONE SCHOOL 
DISTRICT FOUND TO BE GUILTY OF DE JURE 
SEGREGATION ACROSS POLITICAL BOUNDA­
RIES TO OTHER SCHOOL DISTRICTS FOUND

NOT TO BE GUILTY OF ANY DE JURE 
VIOLATIONS

In Swann, supra, this Court clearly established the power 
of a district court in a school desegregation case, stating 
at page 16:

“ In seeking to define even in broad and general 
terms how far this remedial power extends it is im­
portant to remember that judicial powers may be 
exercised only on the basis of a constitutional violation. 
Remedial judicial authority does not put judges auto­
matically in the shoes of school authorities whose 
powers are plenary. Judicial authority enters only when 
local authority defaults.

. . .  As with any equity case, the nature of the viola­
tion determines the scope of the remedy. . . .”  
(Emphasis supplied.)

Thus, in this case this Court must examine what the 
Sixth Circuit apparently determined was a constitutional 
violation, and in so doing this Court will find that there were 
no findings entered against the out-of-city schools. Those 
schools were simply brought in to effect a remedy, i.e., the 
Sixth Circuit says that the Detroit Schools cannot be de­
segregated within their own boundaries, therefore the



23

boundaries have to be extended to bring in other school 
districts. And the fact that those added districts had not 
committed any constitutional violations was immaterial to 
the Sixth Circuit.

A similar situation exists in Indianapolis, except that the 
District Court there went so far as to enter a finding that 
none of the added defendant school districts was guilty of 
any discrimination (attached appendix p. A-23). But after 
making that finding that District Court proceeded to use 
those districts to effect its remedy to desegregate IPS.

In Bradley v. School Board of City of Richmond, 
Virginia, supra, the Fourth Circuit said at page 1069:

“  Because we are unable to discern any constitu­
tional violation in the establishment and maintenance 
of these three school districts, nor any unconstitutional 
consequence of such maintenance, we hold that it was 
not within the district judge’s authority to order the 
consolidation of these three separate political sub­
divisions of the Commonwealth of Virginia. . . . ”

See also Spencer v. Kugler, supra.

Therefore, it is quite clear that the Sixth Circuit is 
attempting to impose a remedy upon school districts that 
are not guilty of any constitutional violations, and that 
attempt must be reversed by this Court pursuant to
Swann, supra, Bradley v. School Board of City of Rich­
mond, Virginia, supra, and Spencer v. Kugler, supra.



24

II.

THE FOURTEENTH AMENDMENT DOES NOT 
REQUIRE A STATE TO REMOVE BLACK CHIL­
DREN FROM SCHOOLS IN WHICH THEY CON­
STITUTE A MAJORITY OF THE STUDENTS 
ENROLLED, OR A SUBSTANTIAL MINORITY, 
IN ORDER TO MIX THEM WITH WHITE CHIL­
DREN IN OTHER SCHOOL DISTRICTS, SO 
THAT THE BLACK CHILDREN WILL ALWAYS 

BE IN A RACIAL MINORITY.
The gist of the constitutional understanding which the 

District Court had in Detroit was clearly stated by that 
court:

“ In reality, our courts are called upon, in these cases, 
to attain a social goal, through the educational system, 
by using law as a lever. ’ ’ 484 F.2d at 261; Cert. App. 
41a.

“ To use the vernacular, ‘Right on!’ but steady as we 
go.”  Cert. App. 41a.

That certainly is not an accurate statement of the law in 
school desegregation cases as established by this Court.

A.

THE CONSTITUTIONAL DEFINITION

The cases governing the district court here are, of course, 
found from Brown 1, supra to Keyes, supra:

The constant theme and thrust of every holding from 
Brown I to date is that state-enforced separation of the 
races in public schools is discrimination that violated 
the Equal Protection Clause. The remedy commanded 
was to dismantle dual school systems.



25

“ We are concerned in these cases with the elimina­
tion of the discrimination inherent in the dual school 
systems . . . The target of the cases from Brown I to 
the present was the dual school system. The elimina­
tion of racial discrimination in public schools is a large 
task and one that should not he retarded by efforts to 
achieve broader purposes lying beyond the jurisdiction 
of school authorities. One vehicle can carry only a lim­
ited amount of baggage. (Emphasis supplied). Swann, 
402 U.S. at 22.

In discussing the extent of the remedy, the Supreme Court 
in Swann made the following observations at page 24:

. . .  If we were to read the holding of the district court 
to require, as a matter of substantive constitutional 
law, any particular degree of racial balance or mixing, 
that approach would be disapproved and we would be 
obliged to reverse. The constitutional command to de­
segregate schools does not mean that every community 
must always reflect the racial composition of the school 
system as a whole.’ (Emphasis supplied.)

And at pages 31 and 32:
At some point, these school authorities and others 

like them should have achieved full compliance with 
this Court’s decision in Brown I. The systems will then 
be ‘ unitary’ in the sense required by our decisions in 
Green and Alexander.

It does not follow that the communities served by 
such systems will remain demographically stable, for 
in a growing, mobile society, few will do so. Neither 
school authorities nor district courts are constitution­
ally required to make year-by-year adjustments of the 
racial composition of student bodies * * * (Emphasis 
supplied.)

In this case there was no finding that the State attempted 
to fix or alter demographic patterns so as to affect the



26

racial composition of the schools in the Detroit area or in 
Michigan in general. Likewise, there was no finding that the 
school corporations were established for that purpose, or 
that they effected that purpose and were intended to do so. 
Compare Keyes v. School District No. 1, 93 S.Ct. 2686, at 
2696 (1973).

In short, in Brown 1, supra, this Court struck down a gov­
ernmental policy of racial segregation which was effected 
in the public school system. The Court did not then, and 
has not since that time used the Fourteenth Amendment 
to develop educational policy.

Brown was a case which struck at a government devel­
oped racial-social policy of segregation and discrimination 
in the public schools. Such governmental policies meant in­
herent inequality which was developed and effectuated, in 
part, by use of public school system. Thus, this Court said, 
“ The target of the cases from Brown I to the present was 
the dual school system.”  Swann, supra at 22.

But the use of the public school system to develop and 
promote a governmental policy of racial segregation was 
only a part of the systematic program. It occurred and was 
struck down in public parks, Muir v. Louisville Park The­
atrical Assn., 347 U.S. 971 (1954), in and on public beaches 
and bathhouses, Mayor and City Council of Baltimore City 
v. Daivson, 350 U.S. 877 (1955), municipal golf courses, 
Holmes v. City of Atlanta, 350 U.S. 879 (1955), and on 
municipal buses, Gayle v. Browder, 352 U.S. 903 (1956), 
all on the authority and the concept of the Brown decision.

The cases which hold that for a Brown violation there 
must be a state act in creating racial segregation or illegal 
separation, rather than adventitious development or demo­
graphic qua social alterations, are simply legion. Among 
them are: Keyes v School District No. 1, supra; Spencer v.



27

Kugler, supra; Bradley v. School Bd. of Richmond, Vir­
ginia, supra; Springfield School Committee v. Barksdale, 
348 F.2d 261, 264, (1st Cir. 1965); Offerman v. Nitkowski, 
378 F.2d 22 (2nd Cir. 1967); Sealy v. Dept, of Public In­
struction, 252 F.2d 898 (3rd Cir. 1957), certiorari denied, 
356 U.S. 975 (1958); Deal v. Board of Education, 369 F.2d 
55 (6th Cir. 1965); and Downs v. Board of Education, 366 
F.2d 988 (10th Cir. 1964), certiorari denied, 380 U.S. 914.

B.

A SCHOOL BOARD’S DUTY

The duty of school officials to date has been to remedy 
segregation which has occurred within a single district, or 
to cross school district line for purposes of desegregation 
when districts were established as a part of a dual school 
system; Haney v. County Board of Education of Sevier 
County. 410 F.2d 920 (8th Cir. 1969); or were set up to im­
pede the dismantling of a dual school system; Wright v. 
Council of Emporia, 407 U.S. 451 (1972); or where the state 
actively imposed its power to prevent the dismantling of a 
dual school system within a single district; Lee v. Macon 
County Board of Education, 448 F.2d 746 (5th Cir. 1971); 
Cf. Bradley v. School Board (Richmond), 462 F.2d 1058 
(4th Cir. 1972), a ff’d per curiam by an equally divided 
court, 36 L.Ed.2d 771, 93 Sup. Ct. 1952 (1973).

Once school officials have taken the necessary action 
within their respective school corporations to insure that 
schools under their control are not racially identified either 
as “ white”  or “ black”  as compared to each other on ac­
count of discriminatory acts by school or state officials their 
constitutional duty has been considered to be at an end. 
Swann, supra, 402 U.S. 16, 28, 31-2. To combine city and 
county schools “ by judicial fiat”  has been expressly de­



28

nied as a matter for “ legislative, executive or political reso­
lution.”  Mapp v. Bd. of Ed. of Chattanooga, (E. D. Tenn. 
1971), 329 F. Supp. 1374, 1378, a ff ’d per curiam (6th 
Cir. 1973) 477 F.2d 851. Compare, Higgins v. Bd. of Ed. 
City of Grand Raids, Mich., No. CA 6386 (W.D.Mich. 
July 18, 1973).

C .

THIS CASE AND THE NEW CONSTITUTION 
FOE 'METROPOLITAN AMERICA

The new duty imposed by the Court in the instant case 
is one that would require the mixing of races wherever 
found within a metropolitan area so that only “ white- 
majority”  districts would be maintained. This cannot be 
done by a single district in all cases, and where it cannot, 
the Court would require a substantial redefinition of the 
constitutional duty owed under the Fourteenth Amend­
ment to each minority child in a city. To date, the school 
function and the overall supervision of schools and their 
basic governmental structure have been determined by the 
State; their boundaries have been set with reference to 
historical entities; and the detailed operation and the 
myriad of factors involving virtually all of the items de­
scribed in Keyes, supra, are delegated to school districts 
with plenary corporate powers. This is vividly described 
in San Antonio Independent School Dist. v. Rodriguez, 411 
U.S. 1, 36 L.Ed. 2d 16 (1973), where state educational fi­
nancing schemes faced a comparable challenge in the state 
relationship to its governmental units. Any such attempt 
to reorder the structure of school government has hereto­
fore been “ reserved for the legislative processes of the 
various States.”  Rodriguez, supra, 36 L.Ed. 2d 16 at 57.



29

The imposition of such a new duty will require courts 
not only to balance integrative necessities against travel 
time and its effect on the educational system, but also with 
prescribing necessary black-white ratios and enrollment; 
geographic size and school board organization; and the 
distribution of assets, debt, teachers, and tax base for each 
unit in each school district in the entire metropolitan area.

The Sixth Circuit’s point of view is a call for busing and 
total school reorganization for racial balance, and is clearly 
contrary to the cases where majority-black schools and 
majority-black school systems have been approved. See 
Wright v. Emporia, supra (66% black); Bradley v. School 
Board of Richmond, Virginia, supra (69% black); North- 
cross v. Board of Education of Memphis City Schools, 
397 U.S, 232 (1970) (53.6% black) (341 F. Supp. at p. 586); 
Raney v. Board of Education of Gould School District, 391 
U.S. 443 (1968) (60% black); U.S. v. Scotland Neck City 
Board of Education, 407 U.S. 484 (1972) (78% black); 
Brunson v. Board of Trustees of School District No. 1 of 
Clarendon County, supra (90% black). In addition, busing 
solely for purposes of racial balance is proscribed by the 
Civil Rights Act of 1964, 42 U.S.C. § 2000c-6(a).

Further, the trial court and the Sixth Circuit in the 
majority opinion erred by basing the remedy on the over­
all right of the State to control the methods of education. 
The real issue is not whether education is a “ state power”  
or “ local power”  but whether a Federal court should 
respect the right of the states to structure their internal 
government under the Tenth Amendment to the United 
States Constitution.

It is submitted that this structure of State government 
should not be destroyed where the concentration of blacks 
within the inner-city was caused by a variety of factors in­
cluding in-migration, birthrates, income factors and per-



30

sonal choice. Where such concentration of blacks was not 
caused by State action, the internal structure of the State 
has been respected. See, e.g., Spencer v. Kugler, supra.

CONCLUSION

A decision to mandate a metropolitan “ solution”  is bas­
ically a political and social decision—a major untried 
change in ordering human affairs, at least as far as the 
Federal Judiciary is concerned.

However, the nation as a whole has chosen to administer 
its schools in relatively small governmental units as is 
evidenced by the following chart showing the number and 
percent of school districts by size in the United States:

Pupils
Number of 
Districts

Percentage 
of Districts

25,000 and over 180 1.001%
10,000 to 24,999 538 2.992%
5,000 to 9,999 1,096 6.095%
2,500 to 4,999 2,026 11.268%

300 to 2,499 7,911 43.998%
Under 300 6,229 34.644%
(Source: Digest of Educational Statistics, 

1971 Ed. United States Dept, of 
H.E.W.)

One can paraphrase Rodriguez: the concept of this case, 
after it has mutated in the Court of Appeals, is a chal­
lenge to the manner in which states choose to educate chil­
dren, an area in which the federal and state courts lack 
expertise and familiarity, where educators are divided on 
many of the problems of reorganization and where it would 
be difficult to imagine a rule having a greater potential 
impact on the federal system.



31

Finally, it must be said that these opinions below do not 
advance the cause of human dignity, human freedom, or 
human choice. They greatly retard those critical elements 
of a free society and this appears to have occurred be­
cause the courts have confused the elements of a class 
action with constitutional rights under the Fourteenth 
Amendment. The dissenting opinion in the Sixth Circuit 
captured the essence of the matter, saying:

“ The metropolitan busing remedy order by the 
Court is, however, unconstitutional on a more funda­
mental level. It invalidly assumes that the equal pro­
tection clause of the Fourteenth Amendment protects 
groups and not individuals. The entire thrust of the 
District Court’s order is that the rights of blacks as a 
group must be redressed and that, in the process, the 
rights of individual black children (and non-black chil­
dren) may be disregarded.”  484 F.2d at 265. (Em­
phasis supplied.)

WHEREFORE, for all the above and foregoing, the 
State of Indiana, amicus curiae herein, respectfully urges 
this Court reverse the decision of the Sixth Circuit.

Respectfully submitted,

T heodore L. S endak 
Attorney General of Indiana
D onald P. B ogard 
Deputy Attorney General
W lliam  F . H arvey 
Special Counsel for the 
Attorney General
Office of Indiana Attorney General 
219 State House 
Indianapolis, Indiana 46204 
Telephone: (317) 633-4076



IN THE

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1973

WILLIAM G. MILLIKEN, et al., )
. . .  )

Petitioners,)
)

vs. ) No. 73-434
)

RONALD G. BRADLEY, et al., )
)

Respondents.)
)

ALLEN PARK PUBLIC SCHOOLS, et al., )
)

Petitioners,)
)

vs. ) No. 73-435
)

RONALD G. BRADLEY, et al., )
)

Respondents.)
)

THE GROSSE POINTE PUBLIC SCHOOL)
SYSTEM, et al., )

)
Petitioners,)

)
vs. ) No. 73-436

)
RONALD G. BRADLEY, et al., )

)
Respondents.)

32



33

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on the 28th day 
of December, 1973, three (3) copies of the BRIEF ON 
THE MERITS IN SUPPORT OP PETITIONERS SUB­
MITTED AMICUS CURIAE BY THE STATE OP 
INDIANA were deposited in the United States Mail, first 
class postage prepaid, addressed to all counsel of record, 
except that service of the counsel of record residing in 
excess of five hundred (500) miles from Indianapolis,
Indiana, has been made by 

Counsel of Record:
Jack Greenburg 
Norman Chachkin 
10 Columbus Circle 
New York, New York 10015

Louis R. Lucas 
William E. Caldwell 
525 Commerce Title Building 
Memphis, Tennessee 38103

Elliott Hall
950 Guardian Building
Detroit, Michigan 48226

Douglas H. West 
3700 Penobscot Building 
Detroit, Michigan 48226

Frank T. Kelley
Attorney General of Michigan
Robert A. Derengoski
Solicitor General
720 Law Building
525 W. Ottawa Street
Lansing, Michigan 48913

air mail, postage prepaid.

Paul R. Dimond
210 E. Huron Street
Ann Arbor, Michigan 48108

Nathaniel A. Jones
1790 Broadway
New York, New York 10019

J. Harold Flannery 
Robert Pressman 
Larsen Hall, Appian Way 
Cambridge, Massachusetts 02138

William M. Saxton 
John B. Weaver 
Robert M. Vercruysse 
Xhafer Orhan
1881 First National Building 
Detroit, Michigan 48226

THEODORE L. SENDAK 
Attorney General of Indiana





A P P E N D IX





TABLE OF CONTENTS

Page

Memorandum of Decision of July 20, 1973—U.S. Dis­
trict Court for the Southern District of Indiana . . .  A -l

Supplemental Memorandum of Decision of December,
6, 1973—U. S. District Court for the Southern Dis­
trict of Indiana ............................................   A-3

Indiana SMSA (16-3) ................................................... A-64

Chicago Urbanized Area (16-44) ...................................A-65

South Bend Urbanized Area (16-48) ............................A-66

Pupil Statistical Data for Eight Counties (Ex. H) . . .  A-67

Carmel-Clay Exhibit DD—U.S.A. & Buckley et al. v. 
Board of School Commissioners et al., IP 68-C-225.. A-68

A-i



. . . .

............................................. ..

.................................................... ... ; 1

i » ............ ...

I



UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF INDIANA 

INDIANAPOLIS DIVISION
F I L E D  

U.S. District Court 
Indianapolis Division
July 20 8 :10 AM ’73

Southern District 
of Indiana 

Arthur J. Beck 
Clerk

UNITED STATES OF AMERICA, )
)

Plaintiff',)
)

DONNY BRURELL BUCKLEY, )
ALYCIA MARQUESE BUCKLEY, By) 

their parent and next friend, Ruby L.)
Buckley, on behalf of themselves and) 
all Negro school age children residing) 
in the area served by original defend-) 
ants herein, )

)
In tervening Plaintiffs,)

)
vs. ) NO. IP 68-C-225

j
THE BOARD OF SCHOOL COMMIS-)
SIONERS OF THE CITY OF IN-)
DIANAPOLIS, INDIANA; )
KARL R. KALP, as Superintendent of)

Schools; )
ERLE A. KIGHTLINGER, as President) 

of The Board of School Commission-) 
ers; )

A-l



A-2

JESSIE JACOBS, )
CARL J. MEYER, )
PAUL E. LEWIS, )
LESTER E. NEAL, )
CONSTANCE R. VALDEZ, )
W. FRED RATCLIFF, Members of The) 

Board of School Commissioners of the) 
City of Indianapolis, )

Defendants,)
)

OTIS R. BOWEN, as Governor of the) „ 
State of Indiana; )

THEODORE SENDAK, as Attorney) 
General of the State of Indiana; )

HAROLD H. NEGLEY, as Superintend-) 
ent of Public Instruction of the State) 
of Indiana; )

)
THE METROPOLITAN SCHOOL ) 
DISTRICT OF DECATUR TOWN-) 
SHIP, MARION COUNTY, INDIANA;)

THE FRANKLIN TOWNSHIP COM-) 
MUNITY SCHOOL CORPORATION,) 
MARION COUNTY, INDIANA; )

)
THE METROPOLITAN SCHOOL ) 
DISTRICT OF LAWRENCE TOWN-) 
SHIP, MARION COUNTY, INDIANA;)

)
THE METROPOLITAN SCHOOL ) 
DISTRICT OF PERRY TOWNSHIP,) 
MARION COUNTY, INDIANA; )

)
THE METROPOLITAN SCHOOL )
DISTRICT OF PIKE TOWNSHIP,) 
MARION COUNTY, INDIANA; )



A-3

THE METROPOLITAN SCHOOL ) 
DISTRICT OF WARREN TOWN- ) 
SHIP, MARION COUNTY, INDIANA;)

)
THE METROPOLITAN SCHOOL ) 
DISTRICT OF WASHINGTON TOWN-) 
SHIP, MARION COUNTY, INDIANA;)

)
THE METROPOLITAN SCHOOL ) 
DISTRICT OF WAYNE TOWNSHIP,) 
MARION COUNTY, INDIANA; )

)
SCHOOL CITY OF BEECH GROVE,) 
MARION COUNTY, INDIANA; )

)
SCHOOL TOWN OF SPEEDWAY,) 
MARION COUNTY, INDIANA; )

)
THE GREENWOOD COMMUNITY) 
SCHOOL CORPORATION, JOHNSON) 
COUNTY, INDIANA; )

)
CARMEL-CLAY SCHOOLS, HAMIL-) 
TON COUNTY, INDIANA; )

)
MT. VERNON COMMUNITY SCHOOL) 
CORPORATION, HANCOCK COUNTY,) 
INDIANA; )

GREENFIELD COMMUNITY SCHOOL) 
CORPORATION, HANCOCK COUNTY,) 
INDIANA; )

)
MOORESVILLE CONSOLIDATED ) 
SCHOOL CORPORATION, MORGAN) 
COUNTY, INDIANA; )

)
PLAINFIELD COMMUNITY SCHOOL) 
CORPORATION, HENDRICKS ) 
COUNTY, INDIANA; )



A-4

AVON COMMUNITY SCHOOL COB-) 
PORATION, HENDRICKS COUNTY,)
INDIANA; )

)
BROWNSBURG COMMUNITY )
SCHOOL CORPORATION, HEN- )
DRICKS COUNTY, INDIANA; )

)
EAGLE-UNION COMMUNITY )
SCHOOL CORPORATION, BOONE )
COUNTY, INDIANA; )

) -
THE INDIANA STATE BOARD OF)
EDUCATION, a public corporate body;)

)
Added Defendants,)

)
CITIZENS FOR QUALITY SCHOOLS,)
INC., )

)
Intervening Defendant,)

)
COALITION FOR INTEGRATED )
EDUCATION, )

)
Amicus Curiae.)

MEMORANDUM OF DECISION 

I. Introduction

This is a school desegregation action originally brought 
by the United States on May 31, 1968, pursuant to Section 
407(a) and (b) of the Civil Rights Act of 1964, 42 U.S.C. 
§ 2000c—6(a) and (b) against The Board of School Com­
missioners of Indianapolis, Indiana (hereinafter IPS), the 
members of the Board, and its appointed Superintendent of 
Schools.



A-5

On August 18, 1971, this Court found and concluded that 
IPS was guilty of unlawfully segregating the public schools 
within its boundaries. That decision was unanimously 
affirmed by the United States Court of Appeals for the 
Seventh Circuit and review was denied by the Supreme 
Court of the United States, without dissent. United States 
v. Board of Sch. Com’rs, Indianapolis, Ind., 332 P.Supp.
655, a ff ’d 474 F.2d 81, cert.den. ------U.S. ------, 41 L.W.
3673 (June 25,1973). Such issue is res judicata.

In contemplating a remedy to vindicate the rights of 
Negro school children, this Court concluded that it could 
have ordered a massive “ fruit basket”  scrambling of stu­
dents within IPS to achieve exact racial balancing. But 
the Court also concluded that in the long run, given the 
steadily rising percentage of Negro pupils within IPS, the 
racial composition of IPS would become nearly all Negro 
because of an acceleration in the departure of white fami­
lies with children from IPS. In this connection the Court 
discussed the “ tipping-point”  factor—the point at which 
white exodus from a school unit is accelerated by increase 
of Negro students beyond a certain variable percent, and 
noted that the tipping-point/resegregation problem would 
become insignificant if the boundaries of IPS were enlarged 
to include all of Marion County and a portion of its con­
tiguous metropolitan region. The Court does not consider 
its conclusions in this area as res judicata.

In order to provide an appropriate adverse setting for 
further consideration of the legal and practical appropri­
ateness of a metropolitan plan, the Court ordered the plain­
tiff United States to secure the joinder of necessary parties 
and seek further relief to determine the answers to certain 
questions posed by the Court.

On September 7, 1971, the United States (hereinafter the 
Government), pursuant to such order, moved to add as



A-6

parties defendant all school corporations in Marion 
County, other than IPS. The motion was granted. How­
ever, the Government failed to assert any claims or seek 
any relief against such added defendants. A few days later 
the Buckley plaintiffs filed their petition to intervene in 
this action in their own right and as respresentatives of a 
class consisting of Negro school age children residing in 
Marion County, Indiana, who are required to attend segre­
gated schools operated by IPS. The petitioners alleged that 
their interests and those of the class they represented were 
not being adequately protected by the original plaintiff, 
the United States, because the Government had failed to 
seek relief against the added school defendants. The Court 
granted the petition to intervene on September 14, 1971.

The Buckley intervening plaintiffs (hereinafter plain­
tiffs) eventually joined as added defendants Edgar D. 
Whitcomb (since succeeded by Otis R. Bowen), as Gov­
ernor of the State of Indiana; Theodore Sendak, as 
Attorney General of Indiana; John J. Loughlin (since suc­
ceeded by Harold H. Negley), as Superintendent of Public 
Instruction of the State of Indiana; The Indiana State 
Board of Education, and nineteen school corporations 
within and without Marion County, Indiana (including the 
ten in-county corporations joined by the Government), as 
follows:

Marion Gounty

The Metropolitan School District of Decatur Township 
(hereinafter Decatur)

The Franklin Township Community School Corporation 
(hereinafter Franklin)

The Metropolitan School District of Lawrence Township 
(hereinafter Lawrence)



A-7

The Metropolitan School District of Pike Township 
(hereinafter Pike)

The Metropolitan School District of Warren Township 
(hereinafter Warren)

The Metropolitan School District of Washington Town­
ship (hereinafter Washington)

The Metropolitan School District of Wayne Township 
(hereinafter Wayne)

School City of Beech Grove (hereinafter Beech Grove)
School Town of Speedway (hereinafter Speedway)

Boone County

Eagle-Union Community School Corporation (herein­
after Eagle)

Franklin County

Greenwood Community School Corporation (hereinafter 
Greenwood)

Hamilton County

Carmel-Clay Schools (hereinafter Carmel)

Hancock County

Greenfield Community School Corporation (hereinafter 
Greenfield)

Mt. Vernon Community School Corporation (hereinafter 
Mt. Vernon)

Hendricks County

Avon Community School Corporation (hereinafter Avon)
Brownsburg Community School Corporation (here­

inafter Brownsburg)



A-8

Plainfield Community School Corporation (hereinafter 
Plainfield)

Morgan County

Mooresville Consolidated School Corporation (herein­
after Mooresville)

The geographical areas served by IPS and added defend­
ants, with the exception of Greenfield, and Union Township 
of Eagle-Union, are reflected on Figure 1. Also represented 
thereon, for reasons which will hereafter appear, are terri­
tories or parts of territories served by certain other school 
corporations bordering on Marion County, namely, Clark- 
Pleasant Community School Corporation (Clark) and Cen­
ter Grove Community School Corporation (Grove) of John­
son County; Delaware and Pall Creek Townships, a part 
of Hamilton Southeastern School Corporation of Hamilton 
County; Sugar Creek Township, a part of Southern Han­
cock County Community Schools (Hancock) of Hancock 
County; and Moral Township, a part of Northwestern 
Consolidated School Corporation of Shelby County (North­
western) of Shelby County.

The intervening defendant Citizens of Indianapolis for 
Quality Schools, Inc., is a not-for-profit corporation whose 
members are parents of children in IPS. Its initial attempt 
to intervene in this action, in opposition to the original 
complaint of the Government, was denied by this Court, 
although the Court permitted it to attend the original trial, 
present argument, and file a brief amicus curiae. The ruling 
was appealed and affirmed. United States v. Board of Sch. 
Com’rs, Indianapolis, Ind., 466 F.2d 573 (7 Cir. 1972). Sub­
sequently, however, intervention was permitted and inter­
vening defendant participated fully in the most recent 
trial.



A-9

Coalition for Integrated Education is an unincorporated 
association of individuals favoring a metropolitan plan of 
school desegregation, which filed a petition for leave to 
appear amicus curiae for the purpose of presenting a 
desegregation plan, and a supplemental motion for leave 
to file a brief. The names of the members of the association 
are attached to the original petition. The motion for leave 
to file a brief as amicus curiae is granted. The Court 
reserves ruling on the petition to file a plan, as premature.

II. Issues

The issues of fact submitted for trial are as follows:
1. Whether or not desegregation of IPS within its 

present boundaries (sometimes referred to as an “ Indian­
apolis Only Plan” ) can be accomplished as required by the 
equal protection clause of the Fourteenth Amendment in 
such a manner as to “ work,”  within the meaning of Green 
v. County School Board, 391 U.S. 430 (1968): “ The burden 
on a school board today is to come forward with a plan 
that promises realistically to work . . . ”

2. Whether or not any of the added defendant officials 
of the State of Indiana, their predecessors in office, or the 
added defendant The Indiana State Board of Education 
have acted to promote segregation, or failed to carry out 
duties imposed upon them by law in such a manner as to 
promote segregation or inhibit desegregation within IPS.

3. Whether or not any of the added defendant school 
corporations have acted to promote segregation either 
within IPS or within their own boundaries.

The issues of law presented are as follows :
1. Whether or not the acts of de jure segregation here­

tofore found to have been practiced by IPS can be imputed



A-10

to the State of Indiana such that appropriate State officials 
or agencies may be directed to afford relief to vindicate 
the Fourteenth Amendment rights of plaintiffs and their 
class.

2. Whether or not appropriate State officials or 
agencies have the power to direct reorganization of IPS 
with other school corporations, or to direct the transfer or 
exchange of IPS pupils to or with other school corpora­
tions in order to vindicate such rights.

3. Whether or not this Court may act in the manner 
just described to vindicate such rights if responsible 
officials or agencies of the State fail to do so within a 
reasonable time.

III.
Viability of an Indianapolis Only Plan

As stated above, the Court in its original opinion 
expressed some doubts as to whether or not a stable deseg­
regation plan could be established with the confines of 
IPS, based upon the evidence adduced at that trial, which 
was all to the effect that when the percentage of Negro 
pupils in a given school approaches 40%, more or less, the 
exodus of white pupils from such a school becomes accel­
erated and irreversible, resulting in resegregation. How­
ever, additional evidence on this issue was adduced at 
the recent trial, and the Court bases its findings exclusively 
upon such latter evidence.

Having considered such evidence, the Court finds it to 
be a fact that when the percentage of Negro pupils in a 
given school approaches 25% to 30%, more or less, in the 
area served by IPS, the white exodus from such a school 
district becomes accelerated and continues, as demon­
strated by Figure 2. All witnesses agreed that once a



A -ll

school becomes identifiably black, it never reverses to 
white, in the absence of redistrieting. Therefore, progres­
sions from white to black are irreversible once the critical 
percentage has been reached in the absence of interven­
tion through redistricting. Below the critical percentage, 
however, schools tend to remain stable, as demonstrated 
on Figure 3. With further reference to Figure 3, it will be 
noted that there is one elementary school within IPS 
which has remained stable over the past five years with 
a high degree of integration. This lone exception is School 
86, which the Court judicially knows to be located in the 
Butler-Tarkington area of the city, mentioned in the testi­
mony as an area in which the residents, black and white, 
have worked together for the past several years in a com­
munity relations program designed to maintain the sta­
bility of the neighborhood as an integrated community. 
The results achieved show dramatically that such a pro­
gram can be made to work, but unfortunately the other 
statistics illustrate all too well that the Butler-Tarkington 
situation is the exception and not the rule.

The Court has no reason to find or believe that a crash 
IPS-wide community relations program, even if one were 
in progress (and none is), would achieve a system-wide 
stabilization in time to preserve the entire system from 
becoming identified as racially black. The Court further 
finds that, given the present percentage of Negro pupils in 
the IPS system, which has risen to 41.1% since the previous 
trial, and the further fact that black enrollments in IPS 
will in the near future surpass white enrollments therein, 
as graphically illustrated on Figure 4, the right of plain­
tiffs and their class to attend schools which are not racially 
identifiable, as provided by the equal protection clause of 
the Fourteenth Amendment, cannot be accomplished with­
in the present boundaries of IPS in a way that will work 
for any significant period of time.



A-12

In other words, it is apparent that as a sheer exercise 
in mathematics, it would he possible for this Court to order 
desegregation of IPS on a 58.9%—41.1% basis, or some 
basis similar thereto, so that no school could, for the time 
being, be racially identifiable as a black school. As a matter 
of fact, IPS announced rather dramatically during the 
recent trial that such a plan would be put into effect for 
the coming school year, but rejected such plan at its recent 
meeting of July 16, 1973, as the Court knows judicially. 
As demonstrated, however, such a plan, if put into effect, 
would have the effect of an immediate acceleration of 
white students into suburban white enclaves or private 
school, so that IPS as a whole would predictably have a 
black majority within a matter of two or three years. 
This is not the Court’s idea of a plan which “ promises 
realistically to work.”

On the other hand, the alternative to such a plan is to 
limit desegregation to figures which are statistically toler­
able insofar as “ white flight”  is concerned, such as to pro­
vide that schools which now contain few or no Negro 
students accept additional numbers of the minority race, 
not to exceed perhaps 20% to 30%. Such a plan would, of 
course, have the effect of affording education in a desegre­
gated setting to those minority race students attending 
schools in which they would make up the minority of 20% 
to 30%; but considering the total percentage of minority 
race students in the IPS system, it is equally obvious that 
such a plan would leave a large number of schools with 
a minority percentage in excess of 50%, which would not 
only make them racially identifiable schools, but would 
once again accelerate white flight from those particular 
schools.

On this key question as to whether a meaningful 
desegregation plan could be put into effect within the con­



fines of IPS, the Court heard expert opinions from numer­
ous witnesses called by each side. As usual, they disagreed. 
However, in the Court’s opinion, a clear preponderance of 
the expert opinion was that no feasible plan could be 
devised. Those who testified to the contrary tended to 
qualify their opinions, and in some instances the facts pre­
sented by such witnesses simply did not support their 
conclusions.

For example, Dr. Mercer, a witness called by the Govern­
ment, testified as to numerous facts having to do with 
desegregation efforts in the State of California, and pre­
sented the City of Riverside as a city where desegregation 
was apparently working well. However, it developed that 
the Riverside plan was put into effect voluntarily, accom­
panied by much community relation effort sponsored by the 
school and the local news media, and finally that the per­
centage of minority race students in the entire system was 
less than 25%. None of these facts have any relation to the 
situation in Indianapolis. On the other hand, the witness’s 
own Figure 7, which is the last sheet of Government 
Exhibit 14, discloses the sharp and dramatic drop in 
‘ ‘ other-white”  students in Inglewood, Pasadena, and San 
Francisco following public announcement that such schools 
would be required to desegregate, later followed by the 
filing of legal actions to accomplish such end. (The term 
“ other-white”  in California refers to those persons 
called “ Anglos”  in Denver and simply “ whites”  or “ Cau­
casians”  in Indianapolis. The California “ other-white”  is a 
white who does not have a Spanish surname.)

The testimony of another defense expert, Dr. Hooker, 
was completely demolished by cross-examination showing 
that in his published articles he had expressed views oppo­
site to those given in this case, and Dr. Dodson testified



that a metropolitan plan would be superior to one limited 
to IPS.

The solution, therefore, must be to look elsewhere, if 
this can be done within the law.

IV.
Responsibility of the State of Indiana

In its previous opinion of August 18, 1971, the Court 
devoted several pages of its opinion to tracing the history 
of segregation within Indiana beginning 1800, demonstrat­
ing that the State, through its legislative, executive, and 
judicial branches had practiced all manner of discrimina­
tion against Negroes, not only in the field of education, but 
in housing and innumerable sectors of their social and eco­
nomic life, as well as in the area of civil rights. 332 F.Supp. 
pp. 658-665. None of such regrettable history, of which the 
Court then took judicial notice, has been refuted by any 
added defendant, with the exception of a quibble about 
the effect of certain school laws passed in 1961 and there­
after. The Court therefore incorporates such previous his­
tory into this opinion by reference, save to the extent that 
its discussion of Acts of the General Assembly of 1961 and 
thereafter will be reviewed further hereafter.

Before entering into a discussion as to the specific acts 
or omissions of State officials having a bearing on the 
problems of segregation and desegregation, it seems 
appropriate at this point to set out in detail the role of 
the State in public education in Indiana, touched upon 
rather briefly in this Court’s previous opinion.

The original seaboard colonies were, of course, founded 
in the 17th and 18th Centuries, when the concept of public 
education was unheard of. As a result, such schools which

A -14



A-15

existed therein in the early days were either church sup­
ported or were supported strictly be private funds. The 
relics of that system linger today in various states which 
evolved from the original colonies so that, for example, 
the decision in Bradley v. School Board of City of Rich­
mond, Virginia, 462 F.2d 1058 (4 Cir. 1973), (“ Rich­
mond” ), based its decision reversing an order of the Dis­
trict Court for a metropolitan desegregation plan in 
Richmond and surrounding counties primarily on the basis 
that the operation of public schools within the different 
counties of the Commonwealth of Virginia is a matter of 
local option, and that, if the option be exercised, the power 
to operate, maintain and supervise the public schools in a 
given county is in the exclusive jurisdieion of the local 
school board and not the state.

However, following the successful conclusion of the 
Revolutionary War, it was foreseen by the Congress that 
an educated citizenry was vital to maintaining an enlight­
ened self-government as provided for in the Constitution, 
and hence the education of all citizens became a concern 
of the Government. Thus it was that when the Northwest 
Territory was formed out of lands formerly claimed by the 
Commonwealth of Virginia, the Northwest Ordinance of 
1787 provided ^

“ Religion, morality and knowledge, being necessary 
to good government and the happiness of mankind, 
schools and the means of education shall forever be 
encouraged. ’ ’ Art. III.

The State of Indiana along with the states of Michigan, 
Ohio, Illinois, Wisconsin, etc., were, of course, later 
formed out of the Northwest Territory, and such states 
accordingly provided by their respective constitutions for 
the establishment of systems of public education. The 
original 1816 Constitution of Indiana, Sections 1 and 2,



A-16

Article 9, paraphrased the above quoted language from 
the Northwest Ordinance and provided that it should be 
the duty of the General Assembly to provide by law for a 
general system of education, ascending in a regular gradu­
ation from township schools to a state university wherein 
tuition would be free, and equally open to all. Article 8, 
Section 1, of the present Constitution, adopted in 1851, car­
ries forward the duty of the State in the following 
language:

‘ ‘ Knowledge and learning, generally diffused through­
out a community, being essential to the preservation 
of a free government; it shall be the duty of the 
General Assembly to encourage, by all suitable means, 
moral, intellectual, scientific, and agricultural im­
provement; and to provide, by law, for a general and 
uniform system of Common Schools, wherein tuition 
shall be without charge, and equally open to all. ’ ’

Under the 1851 Indiana Constitution, the common schools 
as a whole are made a state institution. Ratcliff v. Dick 
Johnson School Tp., 204 Ind. 525, 185 N.E. 143 (1933); 
Ehle v. State, 191 Ind. 502, 133 N.E. 748 (1922); City of 
Lafayette v. Jenners, 10 Ind. 74 (1857). The State owns 
and maintains the common schools just as it does its public 
institutions of every kind. State v. Haworth, 122 Ind. 462, 
23 N.E. 946 (1890). School corporations within the system 
only hold title to such schools as trustees and the State 
has the right to change trustees by annexation at will. 
Board of School Com’rs v. Center Tp., 143 Ind. 391, 42 
N.E. 808 (1896). The legislature may consolidate schools 
by resolution without notice to the voters or without any 
referendum or election. Fruit v. Metropolitan Sch. Dis. of 
Winchester, etc., 241 Ind. 621,172 N.E.2d 864 (1961).

It was the intention of the framers of the Constitution 
to place the common schools under the direct control and



A-17

supervision of the State. Green Castle Township v. Black, 
5 Ind. 557 (1854); State v. Eddington, 208 Ind. 160, 195 
N.E. 92 (1935). The authority over the schools and school 
affairs resides exclusively within the dominion of the leg­
islature and the school system is a centralized and not a 
localized form of school government. Gruber v. State, 96 
Ind. 436, 148 N.E. 481 (1925); Jordan v. City of Logans- 
port, 178 Ind. 629, 99 N.E. 1060 (1912); State v. Ogan, 159 
Ind. 119, 63 N.E. 227 (1902); State v. Haworth, supra; 
State v. Eddington, supra.

Under Article 8 of the Indiana Constitution, the power 
of the General Assembly to regulate the school system is 
practically unlimited. Kostanzer v. State, 205 Ind. 536, 
187 N.E. 337 (1933). The employees of a school corporation 
undertake their duties not as officers of local units of self 
government but as officers of the public school system, 
which is a State institution. State v. Eddington, supra.

The General Assembly has the power to prescribe the 
terms of the employment contracts to be executed by school 
corporations, Indiana ex rel Anderson v. Brand, 303 U.S. 
95 (1937), and the power to provide a general system of 
licenses for those desiring to teach. Stone v. Fritts, 169 
Ind. 361, 82 N.E. 792 (1907).

While the State in acting directly to carry out its educa­
tional functions under Article 8, Section 1, is not forbidden 
to create and use local corporations for that purpose, it 
assumes responsibility for the conduct of these corpora­
tions. Such corporations were and still are involuntary 
corporations established as part of the school system of 
Indiana and are but agents of the State for purposes of 
administering the State system of education. Indiana ex 
rel Anderson v. Brand, supra; Campbell v. City of Indian­
apolis, 155 Ind. 186, 57 N.E. 920 (1900); Freel v. School 
City of Crawfordsville, 142 Ind. 27, 41 N.E. 312 (1895)„



A-18

Such corporations may only exercise the authority given 
them by the State, Ratcliff v. Dick Johnson School Tp., 
supra-, Ehle v. State, supra, and the conduct and practices 
of these agent corporations must be considered acts of the 
State. Hummer v. School City of Hartford City, 124 Ind. 
App. 30, 112 N.E.2d 891 (1953), overruled in part on other 
grounds, Flowers v. Bd. of Com’rs of County of Vander­
burgh, 240 Ind. 668,168 N.E.2d 224 (1960).

Robinson v. Schneck, 102 Ind. 307 1 N.E. 698 (1885), 
held that it was constitutional for the legislature to provide 
by general law for local school authorities to levy school 
taxes. Some of the general language in that case could 
suggest that local school corporations are to be treated as 
local units of self-government, as in Virginia. To clear up 
such an implication, the Supreme Court of Indiana in State 
v. Haworth, supra, made it clear that Robinson did not 
change the relationship of school corporations as agents 
of the State. The majority opinion specifically rejected the 
dissenting opinion’s argument based on Robinson that the 
school corporations in the State are units of self-govern­
ment in which local control of the schools is left with the 
people within such corporation. The majority held instead 
that the authority and control of schools and school affairs 
is vested exclusively in the General Assembly and that 
such affairs are intrinsically matters of State concern and 
not of a local jurisdiction. “ In such matters, the State is 
a unit, and the legislature the source of power.”  To the 
same effect, see Ft. Wayne Community Schools v. State, 
240 Ind. 57,159 N.E.2d 708 (1959).

To summarize in the words of the court in State v. 
Mutschler, 232 Ind. 580,115 N.E.2d 206 (1953):

“ The people of Indiana have translated into a funda­
mental constitutional postulate the belief that the gen­
eral diffusion of knowledge and learning throughout a



A-19

comiminity is essential to the preservation of free gov­
ernment, and in harmony with this constitutional 
postulate the Constitution recognizes that the business 
of education is a governmental function and makes 
public education a function of state government as 
distinguished from local government. It was evidently 
the intention of the framers of the Constitution to 
place the common schools under the direct control and 
supervision of the State, and make it a quasi­
department of the state government, a centralized and 
not a localized, form of school government.”  
(Emphasis added [in the original]).

The Indiana statutes on education are testimony to the 
constitutional and decisional history just discussed. The 
Indiana State Board of Education and its predecessor have 
been given great powers, and “ It shall be the duty of the 
board to coordinate the work of the various commissions 
so as to bring about an effective and an (sic) unified 
school program and to make determinations in matters of 
jurisdiction between such commissions in accordance with 
the law, but all actions of the commissions within their 
respective jurisdictions shall be final.”  The “ commissions”  
are on general education, textbook adoption, and teacher 
training and licensing. Indiana Code 1971, 20-1-1-1 & 2, 
Burns Ind.Ann.Stat. (hereinafter “ Burns” ) § 28-101,102.

Following said Section 20-1-1 of the Indiana Code of 
1971, the first section having to do with schools, there 
follow some 349 solid pages of statutes enacted by the 
General Assembly regulating virtually every phase of 
school operation, printed single spaced, on unusually wide 
paper, in a type style reminiscent of that used in the exclu­
sions section of an insurance policy. The annotated version 
of these laws occupies two complete volumes of Burns, com­
prising some 1,154 standard pages (but with annotations 
in small type), exclusive of indices and pocket parts. Burns



A-20

Yol. 6, parts 3 and 4. The administrative rules and regula­
tions concerning education consume an additional 126 
pages. Burns Ind.Adm. B. & Beg., Title 28. For obvious 
reasons, the Court will attempt no summary of this vast 
compendium, except to say generally that all phases of the 
operation of the public schools are regulated, in one way 
or another, by the State.

Of particular importance here, however, should he noted 
the statute, in effect from 1949 to 1972, which vested in 
the commission on general education of The Indiana State 
Board of Education the power and duty to regulate new 
school sites and buildings or any modifications of or addi­
tions to existing buildings, and established a division of 
schoolhouse planning under a director to be appointed by 
the state superintendent of public instruction with the 
approval of the governor. IC 1971, 20-1-2-1—2-1-2-6, Burns 
28-301—28-306. Such law was repealed in 1972, but only 
because it was at such time replaced by a similar law. IC 
1971, 20-1-1-6, as added 1972; Burns 28-109 (Pocket supp.).

Questions identical to those presented in this action have 
been considered by the Court of Appeals for the Sixth 
Circuit in Bradley, et al, v. Milliken, et al, — F.2d — (1973). 
In upholding the trial court’s determination that a metro­
politan remedy would be appropriate to accomplish deseg­
regation of the public schools of Detroit, it based its hold­
ing upon discriminatory practices on the part of both the 
Detroit school board and the State of Michigan found to 
be “ significant, pervasive and causally related”  to the seg­
regation in the Detroit school system.

The discriminatory practices of the Detroit school board 
were, in general, acts of commission identical to those 
found to have occurred in Indianapolis, such as gerry­
mandering school attendance zones, making boundary 
changes which promoted segregation, providing optional



A -21

attendance zones in “ changing”  areas, assigning teachers 
and staff so as to mirror the racial complexion of a school’s 
student body, assigning students to elementary and high 
schools according to the racial patterns of the feeder 
schools, selecting sites for new schools and building addi­
tions to existing schools in such a fashion as to separate 
the races, etc.

As between the four discriminatory practices charged to 
the State, the Sixth Circuit held:

“ The clearest example of direct State participation in 
encouraging the segregated condition of Detroit public 
schools, however, is that of school construction in 
Detroit and the surrounding suburban areas. Until 1962 
the State Board of Education had direct statutory 
control over site planning for new school construction. 
During that time, as was pointed out above, the State 
approved school construction which fostered segrega­
tion throughout the Detroit Metropolitan area . . . 
Since 1962 the State Board has continued to be in­
volved in approval of school construction plans.”

In the case at hand the evidence shows that Arlington 
High School was opened in 1961 with a Negro enrollment 
of 0.23%, Northwest High School was opened in 1963 with 
a Negro enrollment of 0.0%, and John Marshall High 
School was opened in 1967 with a Negro enrollment of 
0.3%. Inspection of maps in evidence discloses that Arling­
ton is less than a mile from the extreme northeast corner 
of IPS, Marshall is squarely on the extreme east line of 
IPS, and Northwest slighly less than a mile from the ex­
treme west line of IPS. This Court found in its previous 
opinion, and finds once again, that the placement of such 
schools constituted acts of de jure segregation on the part 
of IPS. The former holding has already been affirmed by 
the Seventh Circuit, 474 F.2d at pp. 87, 88. See Swann v.



A -22

Charlotte-Mecklenburg Board of Education, 402 U.S. 1 
(1971).

Here, as in Michigan, the sites for the three high schools 
mentioned were necessarily approved by the appropriate 
agencies of defendant The State Board of Education and the 
Superintendent of Public Instruction. On the authority of
Bradley, these were acts of de jure segregation on the 
part of officials of the State. Similar examples could be 
pointed out with regard to site selection for construction 
and enlargement of elementary schools, but the foregoing 
examples are so obvious that there is no need to labor the 
point.

Further, at all times since 1949, the Indiana statue for­
bidding racial segregation in educational opportunity has 
been in effect, IC 1971, 20-8-6-1, et seq., Burns 28-6106, 
et seq., and the mandate of the Supreme Court of the 
United States in Brown v. Board of Education of Topeka, 
347 U.S. 483 (1954), has been the law since 1954. According 
to the evidence in this case, the officials of the State 
charged with oversight of the common schools have done 
almost literally nothing, and certainly next to nothing, to 
furnish leadership, guidance, and direction in this critical 
area. Even at this late date, the division of equal educa­
tional opportunity of the Indiana Department of Public 
Instruction, headed by the State Superintendent, consists 
of but four staff members and a secretary, to cover the 
entire State of Indiana, and has only been in existence for 
the past two years pursuant to a Federal grant. The Court 
finds that the failure of the State Superintendent and the 
Board of Education to act affirmatively in support of the 
law was an omission tending to inhibit desegregation.



A -23

Y. Acts of Added Defendant School Corporations

There was no evidence that any of the added defendant 
school corporations have committed acts of de jure segrega­
tion directed against Negro students living within their 
respective borders. In fact, the evidence shows that, with 
a few exceptions, none of the added defendants have had 
the opportunity to commit such overt acts because the 
Negro population residing within the borders of such 
defendants ranges from slight to none, as illustrated on 
Figure 5. However, with respect to the added defendants 
situate within Marion County, the evidence is that when 
the Marion County School Reorganization Committee, ap­
pointed pursuant to the Indiana School Reorganization Act 
of 1959, IC 1971, 20-4-1, Burns 28-3501, et seq., made its 
initial and unanimous recommendation that all of the 
school systems in Marion County be merged into one 
metropolitan system, the added Marion County defendants 
were unanimous in their opposition to the plan (which was, 
however, favored by IPS). Subsequently, and for the stated 
reason that in its opinion the metropolitan plan could not 
be adopted in view of the suburban opposition, the Reorga­
nization Committee completely reversed itself and proposed 
a plan which, with minor exceptions having to do with 
areas within Center Township, froze all existing school 
corporations in Marion County according to their then 
existing 1961 boundaries.

Thus school reorganization in Marion County, rather 
than reorganizing anything except the name and method 
of school government as to certain added defendants, did 
nothing at all. By way of contrast, the evidence is that on 
a state-wide basis reorganizations pursuant to the Act of 
1959 ultimately resulted in reducing the number of school 
corporations by approximately 50%, and created school 
corporations merging what had formerly been separate



A -24

corporations in cities, towns, and their adjoining unincor­
porated areas, as well as merging what had formerly 
been separate township systems into consolidated systems. 
Some of the latter mergers extended across county lines, 
as reflected by defendant Wayne’s Exhibit D. As to IPS, 
this farcical “ reorganization”  had the effect of making it 
technically a reorganized school corporation, and thus 
hampered its ability to be further reorganized without 
complying with all of the cumbersome procedures of the 
1959 Act and other crippling legislation, as hereinafter 
described.

That the added defendants had a legal right to resist the 
recommendation of the School Reorganizatinn Committee 
under existing law cannot be denied. At the same time, it 
is apparent that confining IPS to its existing territory had 
the effect, which continues, of making it first difficult and 
now impossible, to comply with the law requiring mean­
ingful desegregation.

At this point the Court deems it appropriate to consider 
briefly the question as to why Figure 5 reflects such a 
remarkable absence of Negro citizens from the territories 
of the added defendants with the exception of Washington 
and Pike (those Negro citizens residing in AVayne are con­
centrated in that part of AYayne which is within IPS, 
according to school enrollment figures). Such absence is 
particularly glaring under the evidence, which reflects 
virtually no Negroes in Speedway, which has within its 
borders Detroit Diesel Allison Division of General Motors 
Corporation, the largest single employer of labor in Marion 
County; virtually nine in Beech Grove, which houses the 
shops of the Penn Central Transportation Company; virtu­
ally none in Warren outside IPS, although Western 
Electric, situate in AYarren Township, employs thousands 
of persons who busily make all of the telephones for Ameri­



A-25

can Telephone and Telegraph. Equally remarkable is the 
absence of Negroes from Lawrence, which has the vast 
Army Finance Center located some two miles east of its 
high school. Either it must be concluded that Negroes, 
unlike other citizens, simply do not like to live near their 
places of employment (and all of the employers mentioned 
are equal opportunity employers), or there must be some 
other reason.

In Richmond the court said, among other things, “ We 
think that the root causes of the concentration of blacks 
in the inner cities of America are simply not known . . 
This Court finds that statement incredible. Although it is 
undoubtedly true that many factors enter into demographic 
patterns, there can be little doubt that the principal factor 
which has caused members of the Negro race to be con­
fined to living in certain limited areas (commonly called 
ghettos) in the urban centers in the north, including Indi­
anapolis, has been racial discrimination in housing which 
has prevented them from living any place else.

In the trial just concluded a witness called by the added 
defendants conceded that Negroes have been severely lim­
ited in their search for housing in the Indianapolis area 
to properties advertised in local newspapers as “ for 
colored,”  and experts called by the Government testified 
that discrimination has been a root cause of the black 
central city .phenomenon.

The Court sees no point in laboring the obvious. If racial 
discrimination did not exist in the United States, Indiana, 
and the Indianapolis metropolitan area, it would not be 
necessary to have laws against it. Yet the past ten years 
have brought forth a spate of such laws, local and national, 
preceded by reports of investigating commissions without 
end, all pointing up what every citizen knows—that dis­



A-26

crimination is yet with us in a nation which daily pledges 
that it is . . one nation, under God, indivisible, with 
liberty and justice for oil.”

Such racial discrimination, which has been tolerated by 
the State at the least, and in some instances has been 
actively encouraged by the State, as set out in this Court’s 
previous opinion, has had, as its end result, the creation 
of an artificial, unrepresented community as pictured 
by the exhibits in this case. At the very least it may be 
said that Negroes have consistently been deprived of the 
privilege of living within the territory of the added defend­
ants by reason of the customs and Usages of the 
communities embraced within such boundaries, and of the 
State.

The foregoing should not be taken to mean that this 
action is one having to do with discrimination in housing, 
and this Court does not consider that a school desegregation 
action is one in which it is appropriate to attempt to remedy 
such discrimination, past or present. However, when it 
may be demonstrated that, as here, the discriminatory cus­
toms and usages mentioned have had a demonstrably causal 
relationship to segregation in the schools, such factor 
should not be casually swept under the table as in 
Richmond.

VI.

Conclusions of Law

The Court concludes, as a matter of law, as follows:
1. The acts of de jure segregation heretofore found to 

have been practiced by IPS can be, and are imputed to the 
State of Indiana.

2. The Superintendent of Public Instruction, The Indi­
ana State Board of Education, and other responsible



A-27

agents and agencies of the State of Indiana, and the State 
itself, have each practiced de jure segregation, both by 
commission and omission.

3, The General Assembly of the State of Indiana has 
the power, and it is its duty, to devise a metropolitan plan 
of common school education in the Indianapolis metro­
politan area, which may be to direct the reorganization of 
IPS with other school eoroporations, in whole or in part, 
or to direct the transfer or exchange of IPS pupils to or 
with other school corporations, in such a manner as to 
vindicate the Fourteenth Amendment rights of plaintiffs 
and all Negro children presently within the jurisdiction of 
IPS to attend desegregated, non-racially identifiable 
schools.

4. If the General Assembly fails to act in the manner 
described within a reasonable time, this Court has the 
power and the duty to devise its own plan, and to order 
the defendant and the added defendant school corpora­
tions, State Superintendent of Public Instruction, and The 
Indiana State Board of Education to implement the same.

In short, paraphrasing the holding of the Sixth Circuit 
in Bradley, et al, v. Milliken, et al, supra, this Court holds 
that the record establishes that the State has committed 
de jure acts of segregation and that the State controls the 
instrumentalities whose action is necessary to remedy the 
harmful effects of the State acts. There can be little doubt 
that a federal court has both the power and the duty to 
effect a feasible desegregation plan. Indeed, such is the 
essence of Brown II. Brown v. Board of Education, 349 
U.S. 294, 300-01 (1955). In the instant case the only feasible 
desegregation plan involves the crossing of the boundary 
lines between IPS and adjacent or nearby school districts 
for the limited purpose of providing an effective desegre­



A-28

gation plan. The power to disregard such artificial bar­
riers is all the more clear where, as here, the State has been 
guilty of discrimination which had the effect of creating 
and maintaining racial segregation along school district 
lines. United States v. Scotland Neck Board of Education, 
407 U.S. 484, 489 (1972); Wright v. City of Emporia, 407 
U.S. 451, 463 (1972); United States v. State of Texas, 447 
F.2d 441, 443-44 (5 Cir. 1971); Haney v. County Board of 
Education of Sevier County, 429 F.2d 364, 368 (8 Cir. 
1970). See also Davis v. Board of School Commissioners, 
402 U.S. 33, 36-38 (1971).

There exists, however, an even more compelling basis for 
this Court’s crossing artificial boundary lines to cure the 
State’s constitutional violations. The instant case calls up 
haunting memories of the now long overruled and discred­
ited “ separate but equal doctrine”  of Plessy v. Ferguson, 
163 U.S. 537 (1896). If we hold that school district boun­
daries are absolute barriers to an IPS school desegregation 
plan, we would be opening a way to nullify Brown v. 
Board of Education which overruled Plessy, supra.

VII.

The Area of a Viable Metropolitan Plan

In considering a metropolitan plan, it is apparent that, 
to name a few factors, the area should be reasonable com­
pact in size in relation to its center, should not be sepa­
rated by massive natural obstacles, and otherwise should 
be adaptable to the reasonably speedy transportation of 
school children. Also, it would seem only reasonable to 
examine whether or not the area to be considered has sig­
nificant common interests with the area hub. The Court 
now examines the situation with regard to the area de­
picted on Figure 1.



A-29

In the first place, the Court knows judicially that the 
entire area consists of virtually flat land, gently sloping 
from the northeast to the southwest with a fall of approxi­
mately 150 to 200 feet in approximately 35 miles. The area 
contains no natural barriers of any consequence; two 
fairly sizeable reservoirs, Geist and Eagle Creek, are lo­
cated northeast and northwest, respectively, and pose no 
obstacle to movement of people to or from the center of 
the area, while White River is little larger that a robust 
creek, and is crossed by numerous bridges. With a very 
few exceptions, such as added defendants in their roles as 
employers, all industrial plants and other major places of 
employment within the area are concentrated either within 
the boundaries of IPS or are within a few city blocks of 
such boundaries in Wayne and Warren Townships and the 
towns of Speedway and Beech Grove. Indeed, as the evi­
dence discloses, many of the added defendant school 
corporations are the largest single employers of labor 
within their respective borders!

The employment situation is represented on Figure 6, 
which shows graphically that, with the exception of the 
City of Greenfield (not shown in Figure 1), more than 
half (in most cases more than 60%) of the residents of 
each unit shown on Figure 1 are employed in Marion 
County—as a practical matter in IPS, or within a few city 
blocks thereof. If the rather substantial number of workers 
who did not list their place of employment are distributed 
in proportion to those who did, it is apparent that the 
true percentage of Marion County workers in the area is 
even higher than as indicated.

The employment picture just described results in huge 
flows of traffic from the “ bedroom”  townships primarily 
to Center, Warren and Wayne Townships of Marion



A-30

County each weekday morning, and back again each eve­
ning. In order to accommodate this flow of traffic, the 
Indianapolis area, with a huge assist from the Federal 
government, is blessed with an extraordinarily efficient 
highway network. The central area is completely looped by 
Interstate Highway 1-465, a six-lane, divided, limited ac­
cess highway, typical of such highways in the Interstate 
System. The loop varies in its distance from Monument 
Circle, the hub of downtown Indianapolis, from as little 
as 4.50 miles, due south, to as much as 11.50 miles to the 
northwest, averaging perhaps six or seven miles in dis­
tance from such central reference point. Additionally, 
there are no less than seven additional legs of Interstate 
highways branching off of 1-465, and in some instances, 
coming inside the 1-465 loop. Specifically, 1-74 runs north­
west and southeast from 1-465, 1-69 runs northeast from 
1-465, 1-70 runs southwest and due east from 1-465 (with 
construction in progress to link up both legs through the 
center of this city), and 1-65 runs northwest and southeast 
from 1-465 (1-65 will also link both of its legs through the 
center of the city, and the north leg is already open from 
1-465 to 11th and Meridian Streets, in downtown 
Indianapolis).

In addition, there are many other multilane highways 
leading into, out of, and through the central area, many of 
which are divided, such as S.R. 67 to the southwest and 
northeast, U.S. 40 due east and west, S.R. 431 and U.S. 
31, each running due north and south to southeast, S.R. 37 
south and northeast, and S.R. 100, running along the north 
and east sides, just inside 1-465. Such routes, and other 
main highways, are illustrated on Figure 7.

Virtually all points of interest for cultural, sports, and 
higher educational activities are located within IPS. For 
example, as the Court knows judicially, Butler University,



A -31

Marian College, Indiana Central College, the Indianapolis 
campus of Indiana and Purdue Universities are so located, 
as are the Indianapolis Zoo, the Children’s Museum, the 
Indiana State Fairgrounds, the Indiana Capitol and office 
buildings, all major federal offices, Clowes Hall (an out­
standing theater for the performing arts), the Indianapolis 
Sports Arena, the Indianapolis Convention Center, etc., are 
all within IPS boundaries. The Indianapolis Art Museum 
directly adjoins an IPS boundary, as does the Indianapolis 
Motor Speedway (located in Speedway).

Just as the working parents of the suburbs drive hack 
and forth to work each day, so are most suburban children 
bused to and from school. As shown on Figure 8, out of 
114,696 students in suburban schools, 90,266 or 78.7% are 
bused. The State reimburses each school corporation a por­
tion of the cost of busing each child. (Also, it should he 
noted, the State reimburses each added defendant, except 
Speedway, a substantial portion of its costs of operation, 
according to a complicated formula.) These bus routes are 
extremely time consuming, as anyone knows who has the 
misfortune to follow a bus down the highway, since the 
custom in the suburban areas is to pick up the children 
on virtually an individual basis. However, assuming that 
children walk to a central school or other convenient 
point, such as most IPS pupils do, and are then transported 
non-stop to their designated school of attendance via the 
major traffic arteries (during which period of transporta­
tion they would be going opposite to the flow of commuter 
traffic, and hence not impeded by it) the Court is of the 
opinion that—given logical and most convenient
assignments—virtually all students could he delivered in 
thirty minutes. Thirty or even forty-five minutes is not an 
unreasonable time, and altogether comparable to that 
required for such transportation elsewhere in Indiana.



A -32

As shown in Figure 4, previously referred to, the white 
pupil enrollment within IPS is sharply falling, while that 
of Negro pupils is rising. On the other hand, the population 
of each area in which added defendants operate their 
schools, and the areas of non-defendant school districts 
adjoining Marion County, are rapidly rising in population, 
virtually all white. These changes are illustrated in Fig­
ures 9,10, and 11.

It was argued by defendants that the Negro birth rate 
and in-migration had declined to the point where further 
increase in the black school population would not occur. 
This not only begs the question of white migration to the 
suburbs, but cannot be demonstrated statistically, as shown 
by Figure 12, reflecting that estimated black enrollments 
in grade 1 in 1973 will exceed black births in Indianapolis 
in 1967—an obvious statistical impossibility, without con­
tinued in-migration.

With regard to the defendant Greenfield, Union Town­
ship of Eagle-Union and certain omitted townships of the 
non-defendants Hamilton Southeastern, Southern Hancock, 
and Northwestern, the Court is of the opinion that the 
distances involved are impractical, and therefore makes no 
recommendation that they be included in a metropolitan 
plan. The Court does recommend that all other added 
defendants be included in the metropolitan plan, as well 
as Eagle-Union to the extent of Eagle Township.

The Court observes that, on the basis of the applicable 
figures, the General Assembly may also wish to add the 
non-defendant Center Grove, Clark-Pleasant, Southern 
Hancock, Hamilton Southeastern to the extent of Delaware 
and Fall Creek Townships, and Northwestern to the extent 
of Moral Township to the plan. Its ability to do so is 
undoubted. State v. Mutschler, supra. However, the Court 
can make no finding or recommendation with respect to



A -33

these corporations until such time as they have had their 
day in court. Intervening plaintiffs are directed to inter­
plead such corporations as additional added defendants 
forthwith.

VIII.
Constitutionality of Certain Indiana Statutes

Questions posed by the Court in its previous opinion in­
quired as to the constitutionality of certain Indiana stat­
utes, specifically Chapter 186 of the Acts of 1961, IC 1971, 
20-3-14-1, 20-3-14-10, Burns 28-2338, 2346, 2347 (1968 Cum. 
Supp.); Chapter 52 of the Acts of 1969, IC 1971, 20-3-14-9, 
Burns 28-2346a (1970 Cum.Supp.), and Chapter 173 of the 
Acts of 1969, IC 1971, 18-4-1-1 to 18-4-5-4, Burns 48-9101, 
et seq.

In the opinion of the Court such statutes, along with the 
application or the misapplication of the School Reorgani­
zation Act of 1959, certainly placed IPS in a strait jacket. 
However, in view of the Court’s other findings and conclu­
sions, it is unnecessary to consider the question of 
unconstitutionality.

IX.
Interim Relief

The Court is of the opinion that it would be without 
jurisdiction to order the exchange of pupils between IPS 
and added defendants at this time. It is Negro children of 
IPS and not suburban children who are being deprived of 
a constitutional right, and so long as the various school 
corporations remain separate the Court believes that it 
would have no basis to direct that a suburban child be 
transported out of its own school corporation. However, 
the Court knows of no reason why added defendants should



A -34

not immediately accept a reasonable number of Negro chil­
dren from IPS on a transfer basis, effective as of the 
beginning of the 1973-74 school year, and it is so ordered. 
In this connection, the evidence shows that virtually all 
added defendants routinely exchange or transfer pupils for 
various educational purposes. The Court can think of no 
more important form of special education for a Negro child 
than going to school in an integrated environment.

As shown by evidence, Negro pupils constituted 
39.5% of the 1972-73 enrollment of IPS, but constituted but 
24.3% of the total enrollment in Marion County and 19.5% 
of the total enrollment in the Figure 1 area for the same 
period. Although a perfect racial balance in each school is 
not required by law and will not be ordered, the General 
Assembly will presumably give careful consideration to 
these relative percentages. Also, the General Assembly 
should keep in mind that “ tokenism”  will not, in the 
Court’s opinion, meet constitutional requirements.

With respect to IPS itself, it is not true that children 
of both races may not be transported on otherwise ex­
changed. As repeatedly pointed out by this and all other 
Federal courts in the land, following, as we must, the pro­
nouncements of the Supreme Court of the United States, 
there is nothing sacred about the attendance zones within 
a school corporation, no constitutional right in a student to 
attend a particular school (except that a child of a minority 
race has a right to attend a desegregated school), and so 
IPS must immediately take steps to reduce the amount of 
segregation in its system. However, final relief cannot be 
had until the General Assembly acts, or this Court is com­
pelled to devise its own plan because of default on the part 
of the General Assembly.



A-35

The Court has given consideration to the average daily 
attendance in the various schools of added defendants, as 
shown by the evidence, and is pleased to note that such 
averages are all well below that permitted by State 
authorities. If each school accepted transfer of 5% of its 
present enrollment, this would amount to an average of 
little more than one child per classroom, which is certainly 
a reasonable figure and one well below what the Court 
believes a proper metropolitan plan should accomplish. 
However, exceptions should be noted in two instances— 
that of Pike and Washington.

Washington already has a Negro percentage of 11.29% 
and Pike a percentage of 8.17%. Washington has an 
exemplary record of fair treatment of its minority stu­
dents, and has also aggressively added minority race mem­
bers to its faculty and staff. Primarily, however, because 
of their present minority enrollments, transfers to these 
added defendants should be limited.

It is therefore considered and ordered that, as interim 
measures, the following be accomplished prior to the begin­
ning of the 1973-74 school year:

1. IPS is directed to transfer to each of the added 
defendants, except Washington and Pike, a number of 
Negro students equal to 5% of the total 1972-73 enroll­
ment of each transferee school, respectively, to transfer to 
Washington 1% of its 1972-73 white enrollment, and to 
Pike 2% of its white enrollment for the same school year. 
Provided, however, that the number of students who at­
tended school in Union Township of Boone County for such 
school year shall be deducted from the Eagle-Union total 
before applying said percentage.

2. IPS shall not be required to transfer kindergarten 
students, nor students commencing their twelfth year.



A-36

The nnmbers of students in such grades enrolled in added 
defendants’ schools for the year 1972-73 shall, however, be 
counted in arriving at the total to which the applicable per­
centage figure shall he applied.

3. Each of the added defendants is directed to accept 
such transferee students and enroll them accordingly.

4. The cost of transportation and tuition of such stu­
dents shall be the obligation of IPS; provided, that IPS 
shall be entitled to a credit for any excess State reimburse­
ment paid to a transferee corporation, if any, as a result 
of the presence of transferred pupils.

5. If any teachers presently employed by IPS are 
rendered surplus as a result of this order, and additional 
teachers are needed by any added defendant as a result 
hereof, first consideration shall be given by such added 
defendant to employing a qualified IPS teacher.

6. The added defendants and IPS, through their 
respective boards, superintendents, or other designated 
agents are ordered to meet together forthwith, and to con­
tinue to meet until the various logistical problems made 
necessary by this order are resolved. Unresolved issues, if 
any, may be referred to the Court for ruling.

7. IPS is directed to rearrange the enrollment patterns 
in its elementary schools, effective at the beginning of the 
1973-74 school year, such that each school will have a 
minimum Negro enrollment of in the area of 15%. The 
pairing or clustering of schools, and realignment of school 
assignment zones will be employed. Pairing or clustering 
should be of schools in close proximity, if possible. Such 
action will result merely in an expansion of the neighbor­
hood or community school concept, and reduce the neces­
sity of busing. If after utilizing such procedures, certain 
schools do not meet the required numbers, pairing or clus-



A-37

tering of schools in non-contiguous zones will be resorted 
to. Swann, 402 U.S. at 28.

8. If transportation of pupils is required to accomplish 
the result just ordered, IPS and defendant officials of IPS 
are instructed that transportation of students of the two 
races shall be generally proportionate. However, nothing 
herein should be construed as preventing IPS from closing- 
obsolete, heavily black schools if no longer needed for 
student housing, and in such event it will necessarily fol­
low, in some cases, that a disproportionate number of black 
students will require transportation.

9. IPS is further directed to rearrange the feeder pat­
terns of its high schools, so as to secure enrollment of 
Negro students in each school more nearly approaching 
their numbers in the system. Specifically, the number of 
such students in John Marshall High School should be in­
creased to the area of 25%, and that at Shortridge reduced 
to not more than the area of 60%. In making transfers of 
high school pupils to added defendants, the Board should 
also keep in mind that Negro percentages at Arlington 
and Broad Ripple are already somewhat past the 40% level, 
and should be reduced, if possible.

10. All defendants who have not done so are directed to 
institute appropriate in-service training courses for their 
respective faculties and staff, and otherwise to orient their 
thinking and those of their pupils toward alleviating the 
problems of segregation.

In this last connection, the Court was pleased to learn 
from the evidence of the recognition given to Negro stu­
dents by their fellow white students in the few suburban 
schools which they attend, and of the honors, both scho­
lastic and otherwise, which such Negro students have 
earned in such schools. These facts, put in evidence by



A-38

added defendants, indicate to the Court that children are 
basically inclined towards judging each other on the 
merits and that, if permitted to follow their own decent 
instincts, will accept each other on the basis of equality, 
without racial hatred. There just may be a message in this 
evidence for the adult world.

11. John 0. Moss and John Preston Ward, attorneys 
for intervening plaintiffs and their class, are entitled to 
recover their reasonable attorneys fees and expenses, and 
intervening plaintiffs are entitled to recover their costs. 
Such attorneys are directed to submit their respective 
petitions for fees and allowances. Apportionment of the 
cost of same is reserved.

12. The Court retains continuing jurisdiction herein.
All of the above is considered, ordered, and adjudged 

this 20th day of July, 1973.

/ s /  S. HUGH DILLIN

S. HUGH DILLXN, Judge

Copies to Counsel of Record



*<
rc

l£
00





7. N/W
100

90

80

70

60

50

40

30

20

10

0

Key: A Public Housing Unit Opened 6/69 
B Some Blacks Transferred Out, Whites In 1971 
C Some Blacks Transferred Out, Whites In 1971 
D Two Public Housing Units Opened 12/70

Fig. 2





Pig. 3





Per Cent White - Non-White Students - IPS

1966 67 68 69
I I 1 I I 1 I

70 71 72 73 74 75 76

F ig . 4





'C
rt

E
JC

O
o 

co 
?r

n
h

m
 a

^c
ot

C
Percent o f  Negro Residents in  Marion 

County and Surrounding Townships 
(Percent o f  Negro Students in  School Systems)

Hamilton
County

Boone
County

-tm

Eagle
0.00
(0.00)

Clay
0.10

(0 . 00)

Delaware

F a ll Creek 
0.00 ] / \  0.19

;0.02)
•h

Brown
0.00

JZ_______;“ 0.00)
L in co ln

0.00

Washington
0.30

(0 . 13)

Washington
12.06

(11. 29)

'/-Hi A

Lawrence
1.33

(1 . 59)

Wayne
5.91

(0 . 81)

Center
38.78

(41. 1)

G u ilfo rd
2.18

(0 . 70)

- ■> Decatur
0.03
(0 . 2 2 )

-H M i+ n  i t/ hi //!Wi-h-UL
M adison '' 

0.02

Morgan
County

Warren
4.64

(0 . 35)

’'Beech'

's

S

Vernon
0.00

707W
Buck Creek 

0.03

V

£

Perry
0.11

(0 . 01)

Franklin

Sugar Creek 
0.03 

( 0 . 00)

(0 . 00)

White
R iver
0.03

(0 . 00)

0.64 
(0 .56)

/-/-rhHH-f+H-

V  / / / / / / •/  /■// / / ;

*j-Gr

Pleasant ^
0.00 HI

(0

lenwood

•k
'S.

I
Clark
0.37

. 00)

H arrison

l
!
.X
£

f

Moral
0.00

(0 . 00)

7V>

Shelby
County

Johnson County

-/-/• { / / / -/ •/ / / / / ■ County Boundary 0 1 2 3 4 5 
S cale  1 1 t i i I 

(mi les)

Fig. 5

v
jr

td
d

O
O

 
x

n
o

n
s

to
tc





/M fr O "  Co u n t y

Place of work of all workers living in Marion 1 
i .County, School Districts surrounding Marion.
' County, and City of Greenfield, 
i (Source: Plaintiffs' Ex. 37; Carmel-Clay Ex. FF) 1 tM*

AKion o/
oursiO^ Sm s /i | fa

Hot [
Fig. 6

J





F ig . 7





Pupils Bused, 1971-72 
(Other than In d ia n a p o lis )

P u p ils P u p ils  Bused % Bused
Boone

E agle-U n ion 1,738 1,293 74.39

H am ilton
H am ilto n -S ou th eastern 1,722 1,593 92.50
Carm el-C lay 6,196 4,115 66.41

Hancock
Southern Hancock 1,895 1,722 90.87
Mt. Vernon 1,826 1,483 81.21
G r e e n fie ld -C e n tr a l 4,156 1,733 41.69

H endricks
Avon 2,129 2,045 96.05
P la in f ie ld 3,731 1,714 45.93
Brownsburg 3,- 333 2,198 65.94

Johnson
C la rk -P le a sa n t 2,738 2,533 92.51
Center Grove 2,920 2,754 94.31
Greenwood 3,383 2,766 81.76

M arion
Decatur 4,706 4,304 91.45
Franklin 2,646 2,378 89.47
Lawrence 9,625 7,806 81.10
Perry 13,254 10,143 76.52
Pike 3,199 2,999 93.74
Warren 10,202 9,255 90.71
Washington 15,675 12,115 77.28
Wayne 12,652 11,175 88.51
Beech Grove 2,818 1,757 62.34
Speedway 2,482 0 0.00

Morgan
M o o re sv ille 3,959 2,286 57.74

Shelby
Northwestern 1,867 1,832 98.12

T o ta l 114,696 90,266 78.70%

Source: Reports, A and F o f
P l a i n t i f f s '  E xh ib it  10

Fig. 8





Marion County Township Populations 1940-1970





Percent Increase in Population: Marion County Townships

L









10,000

9.000

I
8.000 -

7,000

6,000

5,000

4,000

3,000

2,000

* - f -. - ~ *_V - } C 1 t a «  i. d x j . u i a

T
1 © C riJLS \J dm

i
l

x  y  u J 1 9 6 4
1

1965

"1
!

1 9 6 6 1967

School
Enrollments 1967 1968 1969 1970 1971 1972 1973

A ctual Births (1961-67)

------ A ctual F ir s t  Grade Enrollment (1967-73)

F ig . 12





UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF INDIANA 

INDIANAPOLIS DIVISION

F I L E D
U.S. District Court 

Indianapolis Division 
Dec 61973 

Southern District 
of Indiana 

Arthur J. Beck 
Clerk

UNITED STATES OF AMERICA, )
)

Plaintiff')
)

DONNY BRURELL BUCKLEY and )
ALYCIA MARQUESE BUCKLEY, )

By their parent and next friend, Ruby)
L. Buckley, on behalf of themselves) 
and all Negro school age children re-) 
siding in the area served by original) 
defendants herein, )

)
Intervening Plaintiffs,)

)
vs. ) NO. IP 68-C-225

)
THE BOARD OF SCHOOL COMMIS-)

SIONERS OF INDIANAPOLIS, IN-)
DIANA; )

KARL R. KALP, as Superintendent of)
Schools; )

ERLE A. KIGHTLINOER, as President) 
of The Board of School Commission-) 
ers; )

A-39



A-40

JESSIE JACOBS, )
CARL J. MEYER, )
PAUL E. LEWIS, )
LESTER E. NEAL, )
CONSTANCE R. VALDEZ, )
W. FRED RATCLIFF, Members of Tbe) 

Board of School Commissioners of the) 
City of Indianapolis, )

Defendants,)
)

OTIS R. BOWEN, as Governor of the) 
State of Indiana; )

)
THEODORE SENDAK, as Attorney) 

General of the State of Indiana, )
)

HAROLD H. NEGLEY, as Superintend-) 
ent of Public Instruction of the State) 
of Indiana, )

Added Defendants,)
)

THE METROPOLITAN SCHOOL ) 
DISTRICT OF DECATUR TOWN- ) 
SHIP, MARION COUNTY, INDIANA,)

)
THE FRANKLIN TOWNSHIP COM-) 
MUNITY SCHOOL CORPORATION,) 
MARION COUNTY, INDIANA, )

)
THE METROPOLITAN SCHOOL ) 
DISTRICT OF LAWRENCE TOWN-) 
SHIP, MARION COUNTY, INDIANA,)

)
THE METROPOLITAN SCHOOL ) 
DISTRICT OF PERRY TOWNSHIP,) 
MARION COUNTY, INDIANA, )

)
THE METROPOLITAN SCHOOL ) 
DISTRICT OF PIKE TOWNSHIP,) 
MARION COUNTY, INDIANA, )

)



A-41

THE METROPOLITAN SCHOOL ) 
DISTRICT OF WARREN TOWN-) 
SHIP, MARION COUNTY, INDIANA,)

)
THE METROPOLITAN SCHOOL ) 
DISTRICT OF WASHINGTON TOWN-) 
SHIP, MARION COUNTY, INDIANA,)

)
THE METROPOLITAN SCHOOL ) 
DISTRICT OF WAYNE TOWNSHIP,) 
MARION COUNTY, INDIANA, )

-  )
SCHOOL CITY OF BEECH GROVE,) 
MARION COUNTY, INDIANA, )

)
SCHOOL TOWN OF SPEEDWAY,) 
MARION COUNTY, INDIANA, )

)
THE GREENWOOD COMMUNITY) 
SCHOOL CORPORATION, JOHNSON) 
COUNTY, INDIANA, )

)
CARMEL-CLAY SCHOOLS, HAMIL-) 
TON COUNTY, INDIANA, )

)
MT. VERNON COMMUNITY SCHOOL) 
CORPORATION, HANCOCK COUNTY,) 
INDIANA, )

)
GREENFIELD COMMUNITY SCHOOL) 
CORPORATION, HANCOCK COUNTY, 
INDIANA, )

)
MOORESVILLE CONSOLIDATED ) 
SCHOOL CORPORATION, MORGAN) 
COUNTY, INDIANA, )

)
PLAINFIELD COMMUNITY SCHOOL) 
CORPORATION, HENDRICKS ) 
COUNTY, INDIANA, )

)



A-42

AVON COMMUNITY SCHOOL COR-) 
PORATION, HENDRICKS COUNTY,)
INDIANA, )

)
BROWNSBURG COMMUNITY ) 
SCHOOL CORPORATION, HEND- ) 
RICKS COUNTY, INDIANA, )

)
EAGLE-UNION COMMUNITY )
SCHOOL CORPORATION, BOONE) 
COUNTY, INDIANA, )

)
THE INDIANA STATE BOARD OP)
EDUCATION, a public corporate body,)

)
Added Defendants,) 

CITIZENS FOR QUALITY SCHOOLS,) 
INC., )

Intervening Defendant,)
)

COALITION FOR INTEGRATED ) 
EDUCATION, )

Amicus Curiae,)
)

HAMILTON SOUTHEASTERN ) 
SCHOOLS, HAMILTON COUNTY, ) 
INDIANA, )

)
CENTER GROVE COMMUNITY ) 
SCHOOL CORPORATION, JOHN-) 
SON COUNTY, INDIANA, )

)
CLARK-PLEASANT COMMUNITY ) 
SCHOOL CORPORATION, JOHN-) 
SON COUNTY, INDIANA, )

)
SOUTHERN HANCOCK COUNTY ) 
COMMUNITY SCHOOL CORPOR- ) 
ATION, HANCOCK COUNTY, )
INDIANA )

)



A-43

NORTHWESTERN CONSOLIDATED)
SCHOOL DISTRICT, SHELBY )
COUNTY, INDIANA, )

Additional Added Defendants.)

SUPPLEMENTAL MEMORANDUM OF DECISION

I. Introduction

Heretofore, on August 18, 1971, the Court filed herein 
its Memorandum of Decision, incorporating its findings 
of fact and conclusions of law, and making certain interim 
orders, with respect to the issues presented by the com­
plaint of the original plaintiff, United States of America, 
and the answer of the original defendants, The Board of 
School Commissioners of the City of Indianapolis, the 
individual members of such Board, and the Board’s 
appointed Superintendent of schools. Such decision, which 
will be referred to hereafter as “ Indianapolis I ,”  is re­
ported in 332 F.Supp. 655, a ff’d 474 F.2d 81 (7 Cir. 1973), 
cert. den. 37 L.Ed.2d 1041 (1973).

Thereafter, on July 20, 1973, the Court filed herein a 
second Memorandum of Decision, incorporating its find­
ings of fact and conclusions of law, and making certain 
interim orders, with respect to certain issues presented 
by the complaint of the original and added plaintiffs, 
Donny Brurell Buckley, et al, and the answers of the origi­
nal and added defendants. Such decision will be referred
to hereafter as “ Indianapolis II,”  is reported in ------F.
Supp. —, 37 Ind.Dec. 524, and is now on appeal to the Court 
of Appeals for the Seventh Circuit, Nos. 73-1968 to 73- 
1984, incl.

The key decision made in Indianapolis I  was that the 
Indianapolis public school system (hereafter “ IPS” ) was



A-44

being operated by the original defendants, and had been 
operated by their predecessors in office, as a system prac­
ticing de jure segregation of students of the Negro race. 
It was therefore held that the Negro students were being 
denied the equal protection of the laws, as guaranteed by 
the Fourteenth Amendment. Brown v. Board of Education, 
347 U.S. 483 (1954). Certain interim measures tending 
to prevent further segregation were ordered, pending con­
sideration of the questions to be presented and later 
decided in Indianapolis 11, it being understood that the 
law required the defendants to take affirmative action to 
desegregate IPS Green v. County School Board, 391 U.S. 
430 (1968).

The key decisions made in Indianapolis 11 were that 
(1) as a practical matter, desegregation promising a rea­
sonable degree of permanence could not be accomplished 
within the present boundaries of IPS, and (2) added 
defendant officials of the State of Indiana, their predeces­
sors in office, the added defendant The Indiana State 
Board of Education, and the State itself have, by various 
acts and omissions, promoted segregation and inhibited 
desegregation within IPS, so that the State, as the agency 
ultimately charged under Indiana law with the operation 
of the public schools, has an affirmative duty to desegre­
gate IPS.

The Court also held in Indianapolis II that IPS could 
be effectively desegregated either by combining its terri­
tory with that of all or part of the territory served by 
certain added defendant school corporations, into a 
metropolitan system or systems, and then reassigning 
pupils within the expanded system or systems thus cre­
ated, or by transferring Negro students from IPS to added 
defendant school corporations, either on a one-way or an



A-45

exchange basis. It further held that the State, through its 
General Assembly, should he first afforded the opportunity 
to select its own plan, but that if it failed to do so within 
a reasonable time, the Court would have the power and 
the duty to promulgate its own plan, and place it in effect. 
Bradley, et al, v. Milliken, et al, — F.2d — (6 Cir. 1973). 
See Baker v. Carr, 369 U.S. 186 (1962); Reynolds v. Sims, 
377 U.S. 533 (1964).

By way of affirmative relief pending action by the 
General Assembly, the Court ordered IPS to effect pupil 
reassignments for the 1973-74 school year sufficient to 
bring the number of Negro pupils in each of its elementary 
schools to approximately 15%, which has been accom­
plished. The Court also directed IPS to transfer to certain 
added defendant school corporations, and for such corpo­
rations to receive and enroll, a number of Negro students 
equal to 5% of the 1972-73 enrollment of each transferee 
school, with certain exceptions. This order was, on August 
8, 1973, stayed by the Court until the 1973-74 school year 
by an order made in open court but not previously reduced 
to writing.

At this time, certain matters have been presented to 
the Court, both formally and informally, which require 
further rulings in the presmises. Such rulings are now 
made, as hereafter set out, as supplementary to or, in some 
instances, in lieu of rulings heretofore entered in Indian­
apolis II, as heretofore modified.

II. The Question of a “Reasonable Time” for State 
Action

As stated, it was the Court’s conclusion that the State 
should be afforded the opportunity, for a reasonable period 
of time, to discharge its affirmative duty to desegregate



A-46

IPS. The question has arisen as to how long a time is 
reasonable.

As the Court knew judicially at the time it entered its 
decision in Indianapolis II, the General Assembly was 
scheduled to organize in November, 1973, for a session 
to begin in early January, 1974. It has so organized, and 
numerous bills have already been introduced—none, to the 
Court’s knowledge, having to do with the subject at hand. 
As the Court also knows judicially, various legislative 
leaders have publicly announced that the coming session 
is expected to be short, and targeted for conclusion within 
a matter of a month or so.

Under the circumstances, considering the urgency of the 
problem presented, the fact that members of the General 
Assembly have had since July 20,1973 to consider the prob­
lem, and the anticipated length of the coming legislative 
session, the Court considers a reasonable time within which 
the General Assembly should act to be the end of its Janu­
ary, 1974 session or February 15, 1974, whichever date 
is sooner. The Court also considers that any legislation 
adopted by the General Assembly on the subject of the 
desegregation of IPS should be effective for the 1974-75 
school year.

III. The Duty of the General Assembly

In its opinion in Indianapolis II, the Court pointed out 
in section IV thereof that the ultimate responsibility for 
the operation of all public schools in Indiana lies in the 
General Assembly, and that it has the undoubted power 
to desegregate IPS by appropriate legislation, citing the 
Indiana Constitution and some twenty cases decided by 
the Indiana Supreme and Appellate Courts. It also held 
that it was the General Assembly’s duty to do so, based



A-47

upon its findings from the evidence that it is not possible 
for the IPS School Commissioners to bring about a lasting 
desegregation within IPS boundaries.

In reviewing that opinion, it now occurs* to the Court 
that it perhaps placed undue stress on the General 
Assembly’s power, and not enough on its duty; this failure 
of direction on the part of the Court may account for the 
General Assembly’s seeming lack of attention to the prob­
lem to date, as the Court has no reason to doubt that the 
able members of that body will do their sworn duty to sup­
port the Constitution, once that duty is more clearly de­
fined. By “ sworn duty,”  the Court of course refers to the 
oath taken by each member of the General Assembly pursu­
ant to Article 6, Clause 3 of the Constitution of the United 
States, which reads, in applicable part, as follows:

“ . . . (T)he Members of the several State Legislatures, 
and all executive and judicial Officers, both of the 
United States and of the several States, shall be bound 
by Oath or Affirmation, to support this Constitution;

As to what that duty entails, in this instance, may be 
best ascertained by the guidelines laid down by the 
Supreme Court of the United States, whose decisions and 
interpretations of the Constitution are final and binding 
on all citizens, including elected and appointed public offi­
cials, unless thereafter changed by that Court or by Consti­
tutional amendment. Marbury v. Madison (U.S.) 1 Cranch 
137 (1803). It is such guidelines which this Court has en­
deavored to follow to date in this rather difficult case—not 
because of any personal views of the Court, but for the 
simple reason that they constitute the law of the land, in 
every State and Territory, and the Court, pursuant to its 
own oath, may do no less. These guidelines, expressed in



A-48

direct quotation from significant opinions of the Supreme 
Court, are as follows :

‘ ‘ Does segregation of children in public schools solely 
on basis of race, even though the physical facilities 
and other ‘ tangible’ factors may be equal, deprive 
the children of the minority group of equal educational 
opportunities? We believe that it does.. . .
“ We conclude that in the field of public education 
the doctrine of ‘ separate but equal’ has no place 
. . . Plaintiffs . . . are, by reason of the segregation 
complained of, deprived of the equal protection of 
the laws guaranteed by the Fourteenth Amendment. 
. . . ”  Brown v. Board of Education of Topeka, 347 
U.S. 483 (1954) (Brown I)
“ . . . (T)he courts may consider problems related to 
administration, arising from the physical condition 
of the school plant, the school transportation system, 
personnel, revision of school districts and attendance 
areas into compact units to achieve a system of 
determining admission to the public schools on a non- 
racial basis, and revision of local laws and regulations 
which may be necessary in solving the foregoing prob­
lems. . . . ”  Brotvn v. Board of Education of Topeka, 
349 U.S. 294 (1955) (Brown II)
“ . . . (T)he members of the School Board and the 
Superintendent of Schools are local officials; from 
the point of view of the Fourteenth Amendment, they 
stand in this litigation as the agents of the State.

“ Article 6 of the Constitution makes the Constitution 
the ‘ supreme Law of the Land.’ . . .  (T)he federal judi­
ciary is supreme in the exposition of the law of the 
Constitution. . . .  It follows that the interpretation 
of the Fourteenth Amendment enunciated by this 
Court in the Brown Case is the supreme law of the 
land, and Art 6 of the Constitution makes it of binding 
effect on the States ‘ any Thing in the Constitution or



A-49

Laws of any State to the Contrary notwithstanding.’ 
Every state legislator and executive and judicial offi­
cer is solemnly committed by oath taken pursuant to 
Art 6, cl 3, ‘ to support this Constitution.’ . . .  No state 
legislator or executive or judicial officer can war 
against the Constitution without violating his under­
taking to support it----- ”  Cooper v. Aaron, 358 U.S. 1
(1958)

Delays in desegregating school systems are no longer 
tolerable.”  Bradley v. School Board of Richmond, 382 
U.S. 103 (1965)
‘ ‘ The burden on a school board today is to come for­
ward with a plan that promises realistically to work, 
and promises realistically to work now.

# # *

“ The obligation of the district courts . . .  is to assess 
the effectiveness of a proposed plan in achieving 
desegregation. . . . The matter must be assessed in 
light of the circumstances present and the options 
available in each instance.

* # #

“  ‘ “ Freedom of choice”  is not a sacred talisman; 
it is only a means to a desired end—the abolition of 
the system of segregation and its effects. . . .  (I )f it 
fails to undo segregation, other means must be used 
to achieve this end.’ ”  Green v. School Board of New 
Kent County, 391 U.S. 430 (1968)
“ We do not hold that ‘ free transfer’ can have no place 
in a desegregation plan. But like ‘ freedom of choice,’ 
if it cannot be shown that such a plan will further 
rather than delay conversion to a unitary, non-racial, 
nondiscriminatory school system, it must be held un­
acceptable.”  Monroe v. Board of Commissioners, 391 
U.S. 450 (1968)
“ Nearly 17 years ago this Court held, in explicit 
terms, that State-imposed segregation by race in 
public schools denies equal protection of the laws. At



A-50

no time lias the Court deviated in the slightest degree 
from that holding or its constitutional underpinnings.

•U. M. -V.w  i f

' ‘ The objective today remains to eliminate from the 
public schools all vestiges of state-imposed segre­
gation. . . .
“ If school authorities fail in their affirmative obli­
gations under these holdings, judicial authority may 
be invoked. Once a right and a violation have been 
shown, the scope of a district court’s equitable powers 
to remedy past wrongs is broad, for breadth and flexi­
bility are inherent in equitable remedies.

M.-TV-

“ The school authorities argue that the equity powers 
of federal district courts have been limited by Title 
IV of the Civil Rights Act of 1964, 42 USC § 2000c. 
The language and the history of Title IV shows that 
it was enacted not to limit but to define the role of 
the Federal Government in the implementation of the 
Brown I decision.. ..

* .V. M.W W

“ . . . The proviso in § 2000c-6 is in terms designed 
to foreclose any interpretation of the Act as expand­
ing the existing powers of federal courts to enforce 
the Equal Protection Clause. There is no suggestion 
of an intention to restrict those powers or withdraw 
from courts their historic equitable remedial powers. 
• • •

-V. .v. -y.'<v W w

“ . . . Bus transportation has been an integral part 
of the public education system for years. . . . Eighteen 
million of the Nation’s public school children . . . were 
transported to their schools by bus in 1969-70 in all 
parts of the country.



A-51

“ • • . The District Court’s conclusion that assignment 
of children to the school nearest their home serving 
their grade would not produce an effective dismantling 
of the dual system is supported by the record.
“ Thus the remedial techniques used in the District 
Court’s order [pairing, busing, etc.] were well within 
that court’s power to provide equitable relief. . . . ”
Swann v. Charlotte-Mecklenburg Bd. of E d 402 U.S. 
1 (1971)
“ As we have held, ‘ neighborhood school zoning’ 
. . . is not the only constitutionally permissible remedy; 
nor is it per se adequate to meet the remedial respon­
sibilities of local boards. Having once found a viola­
tion, the district judge or school authorities should 
make every effort to achieve the greatest possible de­
gree of actual desegregation, taking into account the 
practicalities of the situation. A district court may 
and should consider the use of all available techniques 
including restructuring of attendance zones and both 
contiguous and noncontiguous attendance zones. . . . 
The measure of any desegregation plan is its effective­
ness.
“ On the record before us, it is clear that.. . inadequate 
consideration was given to the use of bus transporta­
tion and split zoning. . . . ”  Davis v. Board of School 
Commrs., 402 U.S. 33 (1971)
“ Just as the race of students must be considered in 
determining whether a constitutional violation has 
occurred, so also must race be considered in formulat­
ing a remedy. To forbid, at this state, all assignments 
made on the basis of race would deprive school author­
ities of the one tool absolutely essential to fulfillment 
of their constitutional obligation to eliminate dual 
school systems.
“ Similarly, the flat prohibition against assignment 
of students for the purpose of creating a racial balance 
must inevitably conflict with the duty of school author­
ities to disestablish dual school systems. . . . (T)he



A-52

Constitution does not compel any particular degree 
of racial balance or mixing, but when past and contin­
uing constitutional violations are found, some ratios 
are likely to be useful starting points in shaping a 
remedy.. . .
“ We likewise conclude that an absolute prohibition 
against transportation of students assigned on the 
basis of race, ‘ or for the purpose of creating a balance 
or ratio,’ will similarly hamper the ability of local 
authorities to effectively remedy constitutional viola­
tions. . . . (B)us transportation has long been an inte­
gral part of all public educational systems, and it is 
unlikely that a truly effective remedy could be devised 
without continued reliance upon it.”  North Carolina 
Bd. of Ed. v. Swann, 402 U.S. 43 (1971)

IV. Guidelines of this Court—General

It is, of course, recognized by the Court that it cannot 
issue a positive order to the General Assembly to enact 
specific legislation. It is for such reason that the Court 
has suggested several different methods by which the Gen­
eral Assembly could approach the problem of effectively 
desegregating IPS, and it does not imply that there may 
not be other equally effective methods which may occur 
to that body.

Within the context of what has been suggested as possi­
ble alternatives, however, the Court offers further observa­
tions, as follows:

(1) With respect to the concept of one metropolitan 
school district, embracing the area designated in Figure 
1, attached to the Court’s opinion in Indianapolis II, it 
is apparent that some advantages would be obtained from 
such a system. To name a few, a uniform tax base would 
be provided for the education of the more than 200,000 
pupils in the combined system, and economy in operation



A-53

could be achieved through central purchasing and reduction 
of administrative overhead. Complete desegregation would 
be simplified. On the other hand, it may be that such a sys­
tem would be too large in terms of difficulty of adminis­
tration and remoteness of the central office from school 
patrons.

(2) With respect to the concept of creating’ various 
new metropolitan districts—for example, six or eight to 
replace the present twenty-four pictured on Figure 1, it 
is apparent that some of the advantages above noted would 
be reduced, and some of the disadvantages improved. 
Another alternate, of course, would be to create one metro­
politan system for taxing purposes, which in turn would 
be subdivided into several semi-autonomous local districts. 
So long as IPS and the local districts are each effectively 
desegregated, the method used would be constitutionally 
immaterial.

(3) With respect to the concept of permitting the 
present school corporations shown on said Figure 1 to 
remain as is, insofar as geography and control is con­
cerned, such a solution would of course preserve local 
autonomy, and this Court would have no reason to dis­
approve such a solution, so long as each such corporation 
is required to participate in the desegregation of IPS. Put 
in other terms, local autonomy for such corporations is, 
under the law of Indiana, a privilege—not a right—all 
as discussed in detail in Indianapolis II. The consideration 
for permitting the various corporations to continue their 
separate existences might therefore be stated to be their 
participation in a meaningful plan to desegregate IPS. 
Some of the pertinent facts which the General Assembly 
may wish to consider in this regard are set out in the next 
two sections hereof.



A-54

V. Transfer of Pupils

When speaking of the transfer of pupils, the first logical 
question is as to the numbers involved. In this connection, 
the focus must be on the elementary schools within IPS 
which were not affected by the interim plan adopted by 
the Court for the present school year, and which have an 
enrollment of Negro pupils exceeding 80%. There are nine­
teen such schools, fourteen of which have Negro enroll­
ments in excess of 97%. Two additional schools have 
enrollments exceeding 60%, and should also be considered. 
The total enrollment of black students in these 21 schools, 
excluding kindergarten and special education students, is 
approximately 11,500.

The General Assembly might order the exchange of all 
or a substantial part of these 11,500 students with students 
from the suburban school corporations. For purposes of 
illustration, if it were determined to desegregate such 
schools on the basis of approximately 85% white—15% 
black, then about 9,775 black children would need to be 
transferred to suburban schools, and about the same num­
ber of non-black children would need to be transferred 
to IPS.

There is case law to the effect that transfers of students 
must be made on an approximately equal basis insofar 
as the races are concerned, unless there is good reason 
why this should not be done. In such cases it has been held 
that to impose the “ burden”  of being transported wholly 
or largely upon students of one race is yet another form 
of racial discrimination and in violation of the Fourteenth 
Amendment rights of the group transported. United States 
v. Texas Education Agency, 467 F.2d 848 (5 Cir. 1972); 
Lee v. Macon County Board of Education, 448 F.2d 746 
(5 Cir. 1971); Haney v. County Board of Education of



A-55

Sevier County, 429 F.2d 364 (8 Cir. 1970). Such cases, if 
followed, would seem to mandate so-called “ two-way”  bus­
ing, absent compelling reasons to the contrary.

The Supreme Court has not specifically addressed itself 
to this question. However, it is worthy of note that in 
McDaniel v. Barresi, 402 U.S. 39 (1971), that Court ap­
proved a desegregation plan adopted by the Clarke County 
(Ga.) Board of Education which reassigned pupils in five 
heavily Negro “  ‘ pockets’ ”  to other attendance zones, 
busing many of them, without any corresponding busing 
of whites. Other “ one-way”  busing plans have likewise 
been approved, depending on the factual setting. Hart v. 
County School Board, 459 F;2d 981 (4 Cir. 1972); Norwalk 
Core v. Norwalk Board of Education, 423 F.2d 121 (2 Cir. 
1970). Indeed, the Fourth Circuit has flatly held that a 
pattern of assigning Negro students to formerly all-white 
schools, without requiring similar travel on the part of 
whites, does not violate the equal protection clause of the 
Fourteenth Amendment. Allen v. Asheville City Board of 
Education, 434 F.2d 902 (4 Cir. 1970). Moreover, analysis 
of the cases cited in the preceding paragraph indicates 
that they have been decided on their particular facts, even 
though some of the language is in terms of absolute require­
ments.

The Court does not find it necessary to attempt to 
resolve this question in terms of constitutional absolutes, 
nor could it appropriately do so on the present record, 
since the question has not been squarely presented. How­
ever, the record does contain undisputed evidence that 
virtually all of the twenty-one IPS elementary schools 
above referred to (located as shown on Figure 13, 
attached) are substantially out of line with the require­
ments of present Indiana law and regulations establishing 
minimum acreage requirements for elementary schools.



A-56

The regulations require seven acres for schools with 200 
or less pupils, plus an additional acre for each additional 
100 pupils or major fraction thereof. Burns Indiana Rules 
& Regs., § (28-415)-3. As reflected in Figure 14, attached, 
only one of these schools meets acreage requirements. Most 
schools are grossly deficient in the space required—for 
example, the pupil density at School 66 is 544.21 pupils 
per acre, and is 493.57 per acre at School 42 and 481.33 
per acre at School 73. By way of comparison, the pupil 
density at School 42, taking into consideration its enroll­
ment and the State formula, should be 57.58 pupils per 
acre. It is thus overcrowded by 857.18% !

The evidence further shows that, with a few exceptions, 
the twenty-one schools in question are among the older 
schools in the IPS system—some dating hack 100 years, 
more or less. Although there is no evidence that the Board 
of School Commissioners has not maintained such schools 
as well as could be expected under the circumstances, it 
is a fair inference, subject to further proof, that the type 
of construction, use of flammable materials, etc., would 
fail by a wide margin to meet safety standards for newly 
constructed schools. On the other hand, the evidence dis­
closes that the school plants maintained by added defend­
ant school corporations are, for the most part, relatively 
new and in compliance with acreage and safety standards.

On the basis of the foregoing facts, therefore, this Court 
would not feel justified in condemning out of hand a “  one­
way”  suburban busing plan involving pupils from such 
of the twenty-one schools as may seem to the Board, on 
analysis, to afford inadequate educational plant facilities, 
viewed in the light of current standards. Additionally, such 
a plan would involve transportation of substantially fewer 
pupils, and therefore be less expensive.



A-57

Finally, unless convinced to the contrary by additional 
evidence in an appropriate hearing, this Court is not pre­
pared to characterize busing as an unmitigated “ burden.”  
Although it might appear to a child to be “ burdensome”  
to be deprived of walking to school in the warm days of 
May and September (which presupposes that children do 
not like to ride in motor vehicles with their neighborhood 
friends—a somewhat novel concept to the Court), the 
Court doubts that it would seem such a burden to be trans­
ported in a heated bus through the rain, sleet, and snow 
so familiar in this latitude during other months of the 
school term. As pointed out in Indianapolis II, nearly 80% 
of suburban pupils (more than 80% since the elimination 
of Greenfield) are bused to school at the present time, 
without complaint.

The Court is not of the opinion that it would be wise 
to require transportation of kindergarten pupils, primarily 
because of their age, nor to transport special education 
pupils because of the various special problems which would 
inevitably arise in this regard. Further, the Court recog­
nizes that special problems arise with respect to high 
school pupils, which might render their transfer counter­
productive once their high school training has begun. As 
to pupils in grades 1-8, however, the Court knows of no 
reason why transfer of pupils, in whatever fashion the 
General Assembly may elect, would not be reasonable and 
practical to accomplish the constitutional duty imposed 
by the Supreme Court, with the understanding, of course, 
that a transferred elementary pupil would therafter rou­
tinely continue to be transferred to the same transferee 
school corporation for continued education through high 
school.

If, for example, transfers were made of Negro pupils 
from those of the twenty-one schools failing to meet



A-58

modern standards to the schools of added defendants situ­
ate within the geographical area depicted in said Figure 
1, all of those transferred would he afforded education 
in a desegregated setting. It should be no great task to 
desegregate the remaining school or schools within IPS. 
The Court estimates, based on the statistics and projec­
tions in the record, that it would be necessary for the 
suburban schools within such Figure 1 area, excluding the 
Washington Township and Pike Township schools, to 
accept transfer of IPS elementary pupils in grades 1-8 
in number equivalent to approximately 15% of their 1973- 
74 enrollments in the same grades in order to accomplish 
this result.

After such transfers were accomplished, the racial 
percentages in each school to which transfers were made 
would be approximately 87% white and 13% Negro—a 
ratio which, by coincidence, would approximate that of 
the nation as a whole. As regards Washington Township, 
its minority percentage as projected for the present school 
year is already this high, so that general 1-8 transfers to 
this defendant would not appear to be indicated; however, 
the acceptance of pupil initiated transfers from IPS to its 
Everett J. Light Industrial Center, to the extent that 
vacancies exist, might well be required. Pike Township 
likewise has a substantial minority percentage at this time; 
however, a number of transfers sufficient to increase such 
percentage to a figure approximating that of the other 
suburban schools should be considered.

VI. Costs and Mechanics of Transfers

One advantage of the dual transfer system would be 
that if approximately equal numbers of pupils were trans­
ferred to and from suburban schools, tuition, transporta­
tion, and other costs would balance out as between IPS



A-59

and the various other corporations, and no additions to 
school plants would be necessary. On the other hand, more 
pupils would he transported, thus increasing this total cost, 
and such a system would continue the use of the IPS 
antique buildings and grounds.

A one-way transfer plan would involve substantial tui­
tion payments from IPS to the transferee schools. To the 
extent that such tuition applied only to the actual per 
capita cost of instruction, utilities, maintenance service, 
etc., no hardship would he imposed upon IPS, because it 
is apparent that IPS expense for such services would he 
correspondingly reduced. However, the present transfer 
law, I.C. 1971, 20-8.1-6-1 through 20-8.1-6-15, as amended, 
Burns §§ 28-5001 through 28-5015, also contemplate 
charges related to the fair value of the transferee school 
plant, tax levies for building purposes, and other items 
related to capital outlay of the transferee school. Consid­
ering that the State of Indiana is itself at fault in this 
matter, as previously found, the General Assembly should 
consider whether the State should he required to con­
tribute the necessary amount to compensate the transferee 
corporations for the use of their respective plants. Such 
a provision, with an appropriate formula, could he adopted 
as an amendment to the existing transfer law.

It is possible that the General Assembly could discharge 
its duty in this matter simply by amending the existing 
transfer law. The purpose of such law, as the Court under­
stands it, is to permit the better accommodation of school 
children. As pointed out in Section III hereof, the Supreme 
Court of the United States has held that for a minority 
child to he compelled to attend a segregated school denies 
the Fourteenth Amendment rights of such child: in effect, 
the child is not properly accommodated. Therefore, if the 
transfer law were amended to recognize transfers to



A-60

accomplish desegregation of a school system which has 
been finally adjudged to have been segregated de jure (as 
is true in the case of IPS), a basis would be established 
for other necessary changes regarding time of payment 
of tuition, the share to be borne by the State, the matter 
of responsibility for and payment of the cost of transpor­
tation, and similar details. Since the actual number or per­
centage of pupils to be transferred is more of an adminis­
trative detail than a legislative function, this matter could 
be left to the discretion of the local school board or boards, 
subject to the approval of the court having jurisdiction 
of the case.

VII. Vacation of Certain Previous Orders

The various orders contained in Indianapolis II, and 
heretofore stayed by the Court, requiring certain trans­
fers of pupils from IPS to added defendants are each 
vacated and set aside. It should be understood, however, 
that the reason for this ruling is simply that it would be 
inconsistent to permit such orders to stand, although 
stayed, inasmuch as the General Assembly, in the exercise 
of its discretion, may desire to adopt an acceptable plan 
which would be inconsistent with such orders.

Moreover, the 5% order contained in Indianapolis II 
was designated as a mere interim order, it having been 
the Court’s opinion that such amount of transfers would 
have been the most which could reasonably be expected 
to be accomplished within the limited time between the 
date of the order and the beginning of the 1973-74 school 
term. As it happened, added defendants were able to con­
vince the Court that even this limited relief could not be 
accomplished within the time available, hence the stay. 
At this time the Court looks forward to a permanent solu­
tion to the problem of desegregating IPS, which will either



A-61

come from the General Assembly, as it should, or from 
this Court in the event of legislative default. From what 
has been said herein, it should be apparent that the Court 
does not at this time consider 5% transfers as an adequate 
permanent solution. Indeed, if the solution is handed back 
to the Court by default, additional scrutiny will necessarily 
be given to complete consolidation along metropolitan 
lines.

However, by vacating its previous orders, it is not the 
intention of the Court to render moot the appeals now 
being prosecuted by added defendants. To the contrary, 
the Court is of the opinion that its conclusions of law as 
contained in Indianapolis II, as modified and supple­
mented herein, regarding the duty of the State to desegre­
gate IPS, the State’s power to adopt a metropolitan plan 
or transfer plan for such purpose, and the duty of the Court 
to promulgate such a plan in default of State action within 
the time presented, all involve controlling questions of law 
as to which there is substantial ground for difference of 
opinion, and that an immediate appeal from such rulings 
will materially advance the ultimate termination of this 
litigation. It is therefore respectfully suggested that the 
Court of Appeals determine said appeals on the merits, 
as provided in 28 U.S.C. § 1292(b).

Further, the Court in its previous order of July 20,1973, 
Indianapolis II, entered the following: “ All defendants 
who have not done so are directed to institute appropriate 
in-service training courses for their respective faculties 
and staff, and otherwise to orient their thinking and those 
of their pupils toward alleviating the problems of segrega­
tion.”  This order was not, and is not stayed, and neither 
is it vacated. If therefore remains as a continuing and final 
order, operating against added defendant school corpora­
tions, and accordingly does not appear to be moot.



A-02

Considered and ordered this 6th day of December, 1973.

/ s /  S. HUGH DILLIN
S. HUGH DILLIN, Judge

Copies to : Counsel of record

Information copies: All members, General Assembly of 
Indiana



St
'H

<
V

*C
 w

r*

A.H.S. — Arlington  H igh  School
A . T.H.S. — Arsenal Technical H igh School
B . R.H.S. — Broad R ipple High School
C. A .H  S. —  Crispus AttucWs H igh School 
E.M .H.S. — Em m erich Manual H igh School 
G.W.H.S. — George Washington H igh School

H.E.W .H.S. — Harry E. W ood H igh  School 
J.M.H.S. — John Marshall H igh School 

N.H.S. — Northwest High School 
S.H.S. — Shortridge H igh School 

T.C.H.H.S. — Thom as Carr Howe High School 
Kennedy Middle School

O N E  Ml
0 * H * 1
O -  80-1001 Black 

Q  - 60-80Z Black

X -  C losed

Fig. 13





A-63

A B C D E P a

1 853 3.4 14 250.88 60.92 411.81
27 845 1.75 13 482.85 65.00 742.84
41 1157 3.0 17 385.66 68.05 566.73
42 691 1.4 12 493.57 57.58 857.18
43 811 2.6 13 311.92 62.38 500.03
44 1036 3.5 15 296.00 69.06 428.61
45 884 2.5 14 353.60 63.14 560.02
48 589 3.6 11 163.61 53.54 305.58
53 1068 10.0 16 106.80 66.75 160.00
56 655 1.7 12 385.29 54.58 705.91
60” 1152 2.9 17 397.24 67.76 586.24
63 383 1.5 9 255.33 42.55 600.07
66 1034 1.9 15 544.21 68.93 789.51
71 1274 8.2 18 155.36 70.77 219.52
73 1083 2.25 16 481.33 67.68 711.18
75 793 1.75 13 453.14 61.00 742.85
76 594 1.5 11 396.00 54.00 733.33
83 496 11.0 10 45.09 49.60 -9.10

110 1296 10.6 18 122.26 72.00 194.26
Ken.* 552 1.5 11 368.00 50.18 733.35
** School 60 and Mapleton-Fall Creek School 
* Kennedy Middle School
A—Elementary Schools
B—September 1972 Enrollment
C—Acreage of School Site
I)—Minimum State Required Acreage
E—Pupils Per Actual Acre
P—Pupils Per Minimum Required Acre
G—Percent Overcrowded

Fig. 14



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i c ■ ■ a
■ ■ ■ ■ t - t  -  l ?■, f it ■

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: v a v ; ; ' a  a v a  ,;u :

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a



INDIANA

Counties, Standard Metropolitan Statistical Areas, and Selected Places

16-3





INDIANA

Urbanized Areas

CHICAGO-N.W. IND

The Indiana portion of the Chicago— Northwestern Indiana Urbanized Area appears on the following page.

I KANKAKEE CO.“

r̂ê-TON co""

16-44





INDIANA

Urbanized Areas

COMPONENTS OF URBANIZED AREA 
Incorporated Places 
Unincorporated Places 
Unincorporated Area

■ Incorporated Place
• Unincorporated Place Outside Urbaniied Arei

16-48





Total
Assessed
V a lu at ion

1-12
Adjusted  
Assessed  
Va lu at ion  
Per Ch ild

Cumulative  
Bui Id ing  

Levy

Prepared By 

Approved By

Initials Date

Federal
Funds

PUPIL SCHOOL STATISTICAL DATA FOR 8 COUNTIES, 1971-72

Federal 
Funds 

Per Ch ild

1971-72
Pup il Teacher R a t io s  

K 1-6 7-12
F a l l_1971_
EnrolIment

1971-72 
P u p l Is .

1971-72
Cost

Per P u p il
TransportedJTranspot tedJTransported

C  WeiSON JO**CS COMPANV • r.O tu  ’•*« W*»ITE G;^:16A PADDED / WG7616A INC BO U ND . P *t APPt tCD rOB

enrollment r e c a p it u l a t i o n !
Marion County Tota^ 

Ind ianapo lis  P u b l1 

Remainder Marion Cqunty

i?
13
U

16 
■ |7 
18 
131!

a

TOTAL- ENROLLMENT.OF
Boone C o u n t y _____
Hamilton County 

Hancock County

Hendrfcks Coun ty __

Johnson County____

Morgan County ____
Shelby County __

..7 COUNTY TOTAL

chool

UJI
m , 810

102,55.1

77.259

11,758
15,790 

9,233 

1 it, 279 

I 16,3^

:9,705

8̂ ,836

4 - 1

z r

9
10 I

IjJ

iilj
n
16
l7j
18J 

19 j
?0:i

1

2i ;
22 '

23 .
24 

2S~ 
26

29

30

31
3 '2 j

B_;
34

3S_:
36
,— ,t

37 1

38 • 

39J
«J

* * * *  » < * «  COMPANT U S A  .  X O t  V»M WB »£” 0 *6 1 6 *  PADOCD / * 0 2 6 1 6 *  "W IR IN G " BOUND • P*T APPV-EO ; OR





EucKL(Ty jptaJl. s/. o-f <Sr*-J -̂n-(

X  P o * - <̂rî -5•J

n

SELECTED DATA OF BONDED INDEBTEDNESS OF 
DEFENDANT SCHOOL CORPORATION AS OF JUNE 30 , 1972

J DEFENDANT’S 
{ EXHIBIT

Ô -r t>t c / » C/ay 
M0 & &

1971-72 Bond Ratings: Total School Unused Bondinj
Assessed General SBC Vet & Common Total Debt As a 2 * Power @12.52

School Unit Valuation Moody's S&P Obligations Debt Schl .Fund Loans Debt of Net Assessed of Assessed

- Indianapolis City Schools $ 933,915,920 Aa - $ 6,949,000 $ None $ None $ 6,949,000 0,742 $109,790,490

Beech Grove Public Schools 21,299,520 Baa-1 A — 1,735,000 76,175 1,811,175 8.50 851,265

Metro. School Dist.  of Decatur Twp. 35,233,650 A A 60,000 1,450,370 123,500 1,633,870 4.64 2,770,336

*■ "  "  Lawrence Twp. 73,648,790 A A 990,000 5,776,333 97,500 6,863,833 9,32 2,342,266

"  "  Perry Twp. 108,330,180 Aa BBB 915,000 14,695,000 136 ,200 15,746,200 14.54 —

~t*3 , *' "  Pike Twp. 60,224,620 A BBB 10,000 4,080,000 — 4,090,000 6.79 '3,438,078
CD

"  "  Warren Twp, 161,873,770 Aa AA
A

2,015,000 4,965,000 — . 6,980,000 4.31 13,254.221

"  "  Washington Twp, 167,637,260 Aa AA
A

2,835,000 12,633,000 — 15,468,000 9.21 5,486,658

** "  Wayne Twp. 150,346,720 A AA 200,000 9,035,000 — 9,235,000 6.14 9,558,340

School Town of„Speedway 58,019,010 » BBB 22,000 2,535,000 — 2,557,000 4.41 4,695,376

Franklin Twp. Comm. School Corp. 18,512,250 Baa BBB 165,000 1,740,000 1,905,000 10.29 409,031

Marion County Total
*

$1 ,789,041,690 $14,161,000 $58,644,703 $ 433,375 $ 73,239,078 4.09

Carmel-Clay Schools -  Hamilton Co, $ 53,897,540 A A $ 415,000 $ 6,248,000 $ 788,679 $ 7,451,679 13.83 $
Eagle-Union Comm. Schools -  Boone Co. 13,430,590 Baa BBB 194,000 1,565,000 195,000 1,954,000 14.55
Greenfield Cent.Comm.Schs. -  Hancock Co. 31,781,740 Baa BBB None 4,375,685 659 ,823 5,035,508 15.84 ----- •
Brovnsburg Ccmn.Sch.Corp. -  Hendricks Co • 23,489,655 Baa — 82,000 5,485,000 — 5,567,000 23.70
Avon Comm. School Corp. -  Hendricks Cc». 14,794 ,700 Baa — 80,000 3,750,000 175,500 4,005,500 • 27.07 —

Plainfield Comm.Sch.Corp . -  Hendricks Co • 2 5 , 1 9 3 , 7 2 0 Baa-1 BBB — 2,539,000 690,250 3,229 ,250 12.82
Franklin Cor.m. School Corp. -  Johnson Co • 30,082,520 — BBB 367,321 1,835,000 — 2,202,321 7.32 1,557,994
Greenwood Comm. Schl. Corp. -  Johnson Co • 2 5 , 7 0 6 , 8 0 0 — BBB 285,000 4,600,517 219,390 5,104,907 19.86 —

Mooresvillc Cons. Sch. Corp. -  Morgan Co • 1 8 , 0 1 2 , 2 7 0 Baa BBB 1 7 9  , 0 0 0 3,702,323 685,421 4,566,744 25.35 —

Totals -  All Units $2 ,025,431,225 $15,763,321 $93,745,228 $3, 847,438 $112,355,987 5.55