Adams v. Bennett and Women's Equity Action League v. Bennett Memorandum Opinion and Order

    IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 
No. 78-3060

MARK BRINKMAN, et al.,
Plaintiffs-Appellants,

JOHN J. GILLIGAN, et al., and 
DAYTON BOARD OF EDUCATION, et al.,

Defendants-Appellees.

Appeal from the United States District 
Court for the Southern District of Ohio

Western Division

v.

BRIEF FOR APPELLANTS

ROBERT A. MURPHY 
WILLIAM E. CALDWELL 
Lawyers' Committee For

PAUL R. DIMOND 
O'Brien, Moran and Dimond 
210 East Huron Street 
Ann Arbor, Michigan 48104Civil Rights Under Law 

520 Woodward Building 
733 Fifteenth Street, N.W. 
Washington, D.C. 20005

LOUIS R. LUCAS
Ratner, Sugarmon, Lucas,

RICHARD AUSTIN 
Suite 1500
First National Bank Bldg. 
Dayton, Ohio 45402

Salky & Henderson 
525 Commerce Title Building 
Memphis, Tennessee 38103
NATHANIEL R. JONES 
NAACP General Counsel 
1790 Broadway 
New York, New York 10019

Attorneys for Plaintiffs-Appellants



TABLE OF CONTENTS

Page No.
INDEX OF AUTHORITIES....................................  i
NOTE ON RECORD CITATIONS................................  ix
STATEMENT OF ISSUE PRESENTED FOR REVIEW ................  1
STATEMENT OF THE CASE

Prior Proceedings ..................................  1
The District Court's Decision ..................... . 3
The Facts..................   5

ARGUMENT..................  5
I. THE CONTROLLING STANDARDS OF REVIEW ............  6

A. Inadequacy of the District Court's Findings . 8
B. The Standard Governing Review of Findings

of F a c t ....................................  11
(1) The importance of witness demeanor

and credibility........................  13
(2) Inferences and conclusions to be drawn

from undisputed facts ..................  14
(3) "Non-demeanor" or "paper" facts ........  15
(4) Closer scrutiny where constitutional

rights are at stake....................  15
(5) The record as a whole..................  17

C. The Standard Controlling Review of Questions
of Law and Mixed Questions of Law and Fact. . 18

II. THE DISTRICT COURT FAILED TO APPLY CORRECT
PRINCIPLES OF CONSTITUTIONAL LAW................  21
A. The Law in General..........................  2 3
B. The District Court's Erroneous Disregard

of the Pre-Brown Facts......................  26



C. The Lower Court's Erroneous Standards of
Detremining Segregative Intent. . . . . . . .  30

D. The District Court's Erroneous Allocation of
the Burden of Proof of Segregative Impact . . 33

III. THE DISTRICT COURT'S CRITICAL FACTUAL CONCLUSIONS 
ARE WRONG AS A MATTER OF LAW BECAUSE INDUCED BY 
THE APPLICATION OF ERRONEOUS LEGAL STANDARDS AND 
ARE IN ANY EVENT CLEARLY ERRONEOUS..............  34
A. The Pre-Brown Dual System . . ............... 37
B. The Post-Brown Era: Unabated Perpetuation

of the Dual System.....................  43
(1) Faculty and staff assignments ..........  47
(2) Optional zones and attendance boundaries. 49
(3) School construction, closing and site

selection.........................  53
(4) Grade structure and reorganization. . . .  55
(5) Pupil transfers and transportation. . . .  56
(6) Rescission of the Board-adopted plan of

pupil desegregation...............  56
C. Summary of the Constitutional Violation . . . 59

IV. THE SYSTEMWIDE VIOLATION HAD A SYSTEMWIDE IMPACT. 61
CONCLUSION. .............................................  6 6
APPENDIX A, Procedural History Prior to Supreme Court's

Remand............................... la
APPENDIX B, The Dayton School District: General Geography

and Demography............................... 5a
APPENDIX C, The Pre-Brown Dual System..............   7a
APPENDIX D, Continuation of the Dual System After Brown . 24a

(1) Faculty and Staff Assignments ..........  24a
(2) Optional Zones and Attendance

Boundaries........................  30a

Page No.



Page No.
(3) School Construction, Closing and

Site Selection. ......................... 37a
(4) Grade Structure and Reorganization. . . , 41a
(5) Pupil Transfers and Transportation. . . . 42a
(6) The Board's Rescission of Its

Affirmative Duty. . . . . .  ............  48a



INDEX OF AUTHORITIES

Cases: Page No.
A. J. Industries, Inc. v. Dayton Steel Foundry,

394 F. 2d 357 (6th Cir. 1968) ................ ...... 16
Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973) ... 48a
Ashland Oil & Refining Co. v. Kenny Construction Co.,

395 F. 2d 683 (6th Cir. 1968) . ...................... 19
Austin Independent School Dist. v. United States,

429 U.S. 990 (1976) ...............................  3,33
B. F. Goodrich Co. v. Rubber Latex Products, Inc.,

400 F. 2d 401 (6th Cir. 1968) ....................... 9
Baumgartner v. United States, 322 U.S. 665 (1944) .... 12,19,20
Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437

(5th Cir.), cert. denied, 419 U.S. 1033 (1974) .... 45
Berenyi v. Immigration Service, 385 U.S. 630 (1967) ... 16,45
Berry v. School District, 505 F.2d 238 (6th Cir. 1974) 26
Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251

(1946) ......................................... 64
Board of Education v. State, 45 Ohio St. 555, 16 N.E.

373 (1888) ........................................ 7a
Board of Education of School District of City of 

Dayton v. State ex rel. Reese, 114 Ohio St. 188,
151 N.E. 39 (1926) ................................  9a

Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973) .... 25,30,3”a
Brinkman v. Gilligan, 503 F.2d 684 (6th Cir. 1974)

("Brinkman I") ..................................... 2,8,31,
32,48,57,59

Brinkman II, 518 F,2d 538 (6th Cir.), cert, denied
sub nom. , 423 U.S. 1000 (1975) ..................... 2

Brinkman III, 539 F.2d 1084 (6th Cir. 1976),
vacated and remanded, ___ U.S. ___ (1977) .........  2



Bronson v. Board of Education, 525 F.2d 344
(6th Cir. 1975), cert. denied, 425 U.S. 934
(1976) ...................................... ...... 21,22,26,

50,53,55
Brown v. Board of Education, 347 U.S. 483 (1954)

("Brown I") .......................................  22,26,30,
37,38,42,

43,44,47,48
Brown II, 349 U.S. 294 (1955) ........................  22,23,25,

28,30,39
Brown v. Weinberger, 417 F. Supp. 1215 (D.D.C. 1976) .. 48a
Castaneda v. Partida, 430 U.S. 482 (1977) ............  55
In re Clemens, 472 F.2d 939 (6th Cir. 1972) ..........  15
Coleman v. Alabama, 389 U.S. 22 (1967) .............. . 16
Columbus Outdoor Advertising Co. v. Harris, 127 F.2d

38 (6th Cir. 1942)     17
Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972) ........  46
Cordovan Associates, Inc. v. Dayton Rubber Co., 290

F. 2d 858 (6th Cir. 1961) ..........................  12,14,18,19
Costello v. United States, 364 U.S. 265 (1961) .......  45
Cummins v. Parker Seal Co., 516 F.2d 544 (6th Cir.

1975), aff'd by an equally divided Court, 429
U.S. 65 (1976)   10,12,18

Dalehite v. United States, 346 U.S. 15 (1953) ........  9
Davis v. Board of School Commissioners, 402 U.S. 33

(1971) ............................................  21,29
Davis v. School District, 443 F.2d 575 (6th Cir.),

cert, denied, 404 U.S. 913 (1971) .................  26
Davis v. United States, 422 F.2d 1139 (5th Cir. 1970) . 10
Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976) .......  45
Dayton Board of Education v. Brinkman, U.S.

(1977) ............................. ............... 2,6,9,10,18,20,
29,57,58,61,62

Cases: Page No.

ii.



Cases: Page No.
Deal v. Cincinnati Board of Education, 369 F.2d 

55 (6th Cir. 1966), cert, denied, 389 U.S.
847 (1967) ....... ................................. 9

Dickstein v. Seventy Corp., 522 F.2d 1294 (6th Cir.
1975), cert, denied, 423 U.S. 1055 (1976) ......... 18,20

Downs v. United States, 522 F.2d 990 (6th Cir. 1974) .. 12,18
E.H. Sheldon & Co. v. Commissioner of Internal

Revenue, 214 F.2d 665 (6th Cir. 1954) .............  15
Franks v. Bowman Transportation Company, 424 U.S.

747 (1976) .................... . ................. 64
General Electric Co. v. Sciaky Bros., Inc., 415 F.2d

1068 (6th Cir. 1969) .............................. 14,15
Gonzales v. Landon, 350 U.S. 920 (1955) ..............  45
Gowdy v. United States, 412 F.2d 525 (6th Cir.),

cert, denied, 396 U.S. 960 (1969) .................. 12,18
Green v. County School 3d., 391 U.S. 430 (1968) ......  21,23,59,36a
Guzick v. Drebus, 431 F.2d 594 (6th Cir. 1970),

cert, denied, 401 U.S. 948 (1971) .................. 17
Higgins v. Board of Educ., 508 F.2d 779 (6th Cir.

1974)     26
Huard-Steinheiser, Inc. v. Henry, 280 F.2d 79 (6th

Cir. 1960)     11
Hunter v. Erickson, 393 U.S. 385 (1969) ............... 46,58
Huszar v. Cincinnati Chemical Works, Inc., 172 F.2d

6 (6th Cir. 1949) ....................................  11
Ingram Corp. v. Ohio River Co., 505 F,2d 1364 (6th

Cir. 19 74)      15
J.A. Jones Construction Co. v. Englert Eng. Co.,

438 F. 2d 3 (6th Cir. 1971) ................  12
Johnson v. Goodyear Tire & Rubber Co., 491 F.2d

1364 (5th Cir. 1974) ............................... 46

iii.



Johnson v. Salisbury, 448 F.2d 374 (6th Cir. 1971),
cert, denied, 405 U.S. 928 (1972) .................  19

Kelley v. Everglades Drainaqe Dist., 319 U.S. 415
(1943)     9

Kelley v. Guinn, 456 F.2d 100 (9th Cir. 1972),
cert, denied, 413 U.S. 919 (1973) .................  28a

Kelsey v. Weinberger, 498 F.2d 701 (D.C. Cir. 1974) ... 48a
Keyes v. School Dist. No. 1, 413 U.S. 189 (1973) .....  4,18,21,22,23,

25,27,28,29,30,
31,32,34,38,39,
44,46,51,52,61,

62,64,65
King v. Commissioner of Internal Revenue, 458 F.2d

245 (6th Cir. 1972) ........................... 11
Kirkhof Mfg. Corp. v. Sem-Torq, Inc., 312 F.2d 578

(6th Cir. 1963)  .................................. 14
Kochtitzky v. John A. Denie's Sons Co., 153 F.2d

520 (6th Cir. 1946) ...............................  19
Lee v. Demopolis City School System, 557 F.2d 1053 

(5th Cir. 1977), cert, denied, 46 U.S.L.W.
3436 (U.S. Jan. 9, 1978)   10

Letcher County v. DeFoe, 151 F.2d 987 (6th Cir. 1945) . 15
Lewis v. Pennington, 400 F.2d 806 (6th Cir. 1968) ...  9,64
Loving v. Virginia, 388 U.S. 1 (1967) ................  46
McDaniel v. Barresi, 402 U.S. 39 (1971) ..............  21
McLaughlin v. Florida, 379 U.S. 254 (1964) ...........  46
Meadows v. Ford Motor Co., 510 F.2d 939 (6th Cir.),

cert, denied sub norn., 525 U.S. 998 (1976) ........  45,64
Milliken I, 418 U.S. 717 (1974) ......................  62
Milliken v. Bradley, ___ U.S. ___ (1977)

(Milliken II) ...... ............................... 21,62,63

Cases; Page No,

iv.



Mitchell v. Rose, No, 77-1272 (6th Cir. Jan. 9,
1978)  ..................... ................... 55

Monroe v. Board of Comm'rs, 391 U.S. 450 (1968) ..... 21
Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S.

274 (1977) .......................... .............. 22,34,64
NAACP v. Lansing Bd. of Educ., 559 F.2d 1042 

(6th Cir. 1977), cert, denied, 46 U.S.L.W.
3390 (1977)    21,22,

26,28,30,
50,53,54,58

National Latex Products Co. v. Sun Rubber Co., 274
F.2d 224, rehearing denied, 276 F.2d 167 (6th 
Cir.), cert, denied, 362 U.S. 989 (1960) ..........  15

Neil v. Biggers, 409 U.S. 188 (1972) .................  16,18
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ... 16,45
Norris v. Alabama, 294 U.S. 587 (1935) ...............  16
North Carolina State Bd. of Educ. v. Swann, 402 U.S.

43 (1971)     21
Nowak v. United States, 356 U.S. 660 (1958) ..........  45
Oliver v. Michigan State Bd, of Educ., 508 F.2d 

178 (6th Cir. 1974), cert, denied, 421 U.S.
963 (1975) ....... ................................. 21,22,26,50,

53,55
Pettway v. American Cast Iron Pipe Co., 494 F.2d

211 (5th Cir. 1974)    45,46
H.K. Porter Co. v. Goodyear Tire & Rubber Co.,

437 F.2d 244 (6th Cir.) (McCree, J.), cert.
denied, 404 U.S. 885 (1971) ........ ............... 15

Raney v. Board of Educ. , 391 U.S. 443 (1968) .........  21
Reitman v. Mulkey, 387 U.S. 369 (1967) ...............  58
Rolfe v. County Board of Educ. of Lincoln County,

391 F. 2d 77 (6th Cir. 1968) ....................... 44,45

Cases: Page No.

v.



Cases: Page No.

Sampson v. Murray, 415 U.S. 61 (1974) ................  10
Sehneiderman v. United States, 320 U.S. 118 (1943) .... 45
Seagrave Corp. v. Mount, 212 F.2d 389 (6th Cir.

1954) ......... ....................................  15,16
Singleton v. Jackson Municipal Separate School 

District, 419 F.2d 1211 (5th Cir.), rev'd on 
other grounds sub nona. , 396 U.S. 290 (1970) .......  47

Steiner v. Mitchell, 215 F.2d 171, rehearing 
denied, 220 F.2d 751 (6th Cir. 1954), aff'd,
350 U.S. 247 (1956) ...............................  14

Storv Parchment Paper Co. v. Patterson Paper Co.,
282 U.S. 555 (1931) ...............................  64

Swann v. Charlotte-Mecklenburg Bd. of Educ.,
402 U.S. 1 (1971) ............................. . 21,22,23,25,

29,34,52,59,
62

United States v. Appalachian Electric Power Co.,
311 U.S. 337 (1940) ....................... ........ 20

United States v. Board of School Comm'rs, 332
F. Supp. 665 (S.D. Ind. 1971) .....................  11a

United States v. Chesterfield County School Dist.,
484 F. 2d 70 (4th Cir. 1973) ....................... 46

United States v. DuPont DeNemours & Co., 353 U.S.
586 (1957)   14

United States v. El Paso Natural Gas Co., 376
U.S. 651 (1964)   10

United States v. General Motors Corp., 384 U.S.
127 (1966)     14,16,17

United States v. John J. Felin & Co., 334 U.S.
624 (1948) .............................   17,19,20

United States v. Mississippi Valley Gen. Co.,
364 U.S. 520 (1961) ............................... 18

United States v. Montgomery County Bd. of Educ.,
395 U.S. 225 (1964) ................................ 47,27a

vi.



Cases: Page No.
United States v. New York, N.H. & H.R.R., 355

U.S. 253 (1957) .................................... 44
United States v. Parke, Davis & Co., 362 U.S.

29 (1960) ......................................... 18
United States v. School Dist. of Omaha, 521 F.2d 

530 (8th Cir.), cert, denied, 423 U.S. 946
(1975)   37a

United States v. Singer Mfg. Co., 374 U.S. 174
(1963)     12,20

United States v. Texas Educ. Agency, 457 F.2d
848 (5th Cir. 1972) (Austin I) ....................  37a

United States v. Texas Educ. Agency, 564 F.2d
162 (5th Cir. 1977) (Austin III) .................. 33,53,54

United States v. United States Gypsum Co., 333
U.S. 364 (1948) ....... ........... . . ............... 12,13,17

18,43,60
United States v. Weingarden, 473 F.2d 454 (6th

Cir. 1973)      19
United States v. Yellow Cab Co., 338 U.S. 338

(1949)       13
United States Steel Corp. v. Fuhrman, 407 F.2d

1143 (6th Cir. 1969)     12,15
University Hills, Inc, v. Patton, 427 F.2d 1094

(6th Cir. 1970), ....................................  18
Utzinger v. United States, 432 F.2d 485 (6th Cir.

1970)       19
Village of Arlington Heights v. Metropolitan

Housing Dev. Corp. , 429 U.S. 252 (1977) ...........  22,34,44,64
Washington v. Davis, 426 U.S. 229 (1976) .............  29,46,58
Wedding v. Wingo, 483 F.2d 1131 (6th Cir. 1973),

aff *d, 418 U.S. 461 (1974) ........................  13
Withrow v. Larkin, 421 U.S. 35 (1975) ............ . 10

vii.



Woodby v. Immigration & Naturalization Service,
385 U.S. 276 (1966) .................. ............. 45,46

Wright v. Council of the City of Emporia, 407
U.S. 451 (1972)   22,29

Zenith Radio Corp. v. Hazeltine Research, Inc.,
395 U.S. 100 (1969) ............................... 12,13,20,64

Statutes and Rules:
42 U. S.C. § 1981 ...........       la
42 U.S.C. §§ 1983-88 ....................    la
42 U.S.C. § 2000d ....................................  la
Ohio Rev. Code § 3319.01 .............................. 52a
85 Ohio Laws 34 (1887) ...............................  7a
Ohio Attorney Gen. Op. 6810 (1956) ...................  50a
Fed. R. Civ. P. 52(a) ................................  8,11,13,15,

18,20

Books and Articles:
C. McCormick, Law of Evidence (1954) .................  45
J. Wigmore, Evidence (2d ed. 1940)   44,45
McBain, Burden of Proof: Decrees of Belief,

32 Calif. L. Rev. 242 (1944) ......................  45,46

Cases: Page No.

viii.



NOTE ON RECORD CITATIONS

Joint Appendix Citations. The Joint Appendix 
filed on this appeal consists of four photocopied volumes (I-IV) 
of consecutively paginated materials (pp. 1-1128) (numbered in 
the bottom right-hand corner of each page) specifically desig­
nated for this appeal, cited herein in the form "A.000," and one 
printed volume (V) (which is the exhibit volume of the appendix 
used in the Supreme Court last year) paginated 311-606, which 
is cited herein in the form "S.Ct.A.000." (A few relevant docu­
ments are contained in the Appendices to Plaintiffs-Appellants1 
Motion For Stay and Injunction Pending Appeal, which will be 
referred to as "Stay App„")

Original Record Citations. Plaintiffs' trial
exhibits are designated in the form "PX____" and defendants'
trial exhibits in the form "DX____." Original transcript cita­
tions are in the following forms:__"R.I. 000" refers to the
20-volume transcript of the November 1972 trial; "R.II. 000" to 
the February 1975 remedial hearing; "R.III. 000" to the December 
1975/January 1976 remedial hearing; and "R.IV. 000" to the 
4-volume transcript of the November 1977 remand hearing.

ix.



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 78-3060

MARK BRINKMAN, et al.,
Plaintiffs-Appellants,

v.
JOHN J. GILLIGAN, et al., and 

DAYTON BOARD OF EDUCATION, et al.,
Defendants-Appellees.

Appeal from the United States District 
Court for the Southern District of Ohio

Western Division

BRIEF FOR APPELLANTS

STATEMENT OF ISSUE PRESENTED FOR REVIEW

Whether the systemwide racial segregation of 
pupils in the Dayton public schools existing at the time of 
initial trial was caused by the intentionally segregative 
policies and practices of the Dayton Board of Education?

STATEMENT OF THE CASE

Prior Proceedings
The procedural history of this litigation lead­

ing up to the Supreme Court's decision of June 27, 1977,



is set forth in

Appendix A hereto, pp. la-4a, infra. That history is familiar 
to this Court. Brinkman v. Gilligan, 503 F.2d 684 (6th Cir.
1974) ("Brinkman I"); Brinkman II, 518 F.2d 583 (6th Cir.), 
cert, denied sub nom., 423 U.S. 1000 (1975); Brinkman III,
539 F.2d 1084 (6th Cir. 1976), vacated and remanded, ___ U.S. ___
(1977). Pursuant to the Supreme Court's judgment, this Court, 
on August 25, 1977, remanded the case to the district court for 
further proceedings in conformity with the Supreme Court's opin­
ion. 561 F.2d 652 (6th Cir. 1977).

The events in the district court following the 
Supreme Court's opinion result in the present plenary appeal, 
destined to be this Court's Brinkman IV. The proceedings below, 
some of them out of the ordinary, are detailed at pages 2-9 of 
our January 12, 1978 Motion in this Court for Stay and Injunction 
Pending Appeal and accompanying appendices, to which we respec- 
fully refer the Court. The highlights are that the district 
court, even prior to this Court's remand, took action apparently 
designed to terminate forthwith the desegregation plan implemented 
at the start of the 1976-77 school year. Frustrated in this 
course of conduct (see transcript of hearing, August 8, 1977 
and August 12, 1977 order), the district court conducted a sup­
plementary evidentiary hearing on November 1-4, 1977.

On December 15 the district court entered a judgment, 
and Findings of Fact and Conclusions of Law (hereinafter,
"Mem. Op."), dismissing plaintiffs' complaint and freeing the

Dayton Bd. of Educ. v. Brinkman, ___ U.S.

-2-



Board of Education of any federal legal duty not to operate 
racially segregated schools. A.63-105. Plaintiffs noticed their 
appeal on December 28, and simultaneously moved the district 
court for a stay of judgment pending appeal. That motion was 
denied by the district court on January 5, 1978 (Stay App. G); on 
the same day, the Dayton Board voted to reinstate pupil segregation 
beginning with the second semester. Plaintiffs applied to this 
Court for a stay and injunction pending appeal. On January 16 
this Court enjoined the Board "to cause [the] system-wide desegre­
gation plan to remain in effect pending appeal, or until further 
order of the Court," and also ordered the appeal expedited.

The District Court's Decision
Judge Rubin began his opinion by correctly noting: 

"The course of this protracted litigation has been marked by 
conceptual differences not only as to the facts, but as to the 
legal significance of those facts." A.63. He then proceeded 
to perpetuate the dichotomy by applying the wrong legal standards 
for intent and causation, misallocating the burdens of proof, 
and making clearly erroneous fact findings. For example, he 
imposed an unceasing burden upon the plaintiffs "to prove the 
effect of any purposeful segregative act, not merely on a theoret­
ical basis, but on a factual basis." A.67.—^ A few pages later

— In support of placing such a burden upon plaintiffs the court 
relied upon Justice Powell's separate opinion, joined by only- 
two other Justices, in Austin Independent School Dist. v.

[footnote cont'd on next page]

-3



this unique view of the burden of proof is characterized as 
"the remedial portion of [plaintiffs'] burden of proof." A.69.

Similarly, all ultimate factual issues are resolved 
against plaintiffs in argumentative fashion and conclusory terms. 
The facts are compartmentalized into categories; and, contrary 
to controlling precedent, each category is analyzed in isolation 
from the record as a whole. Wherever it would be a palpable 
falsehood to hold that plaintiffs had failed to prove even 
subjective racial animus on the part of the school authorities, 
the court —  instead of finding intentional segregation at least 
in these circumstances and then analyzing their impact in light 
of the defendants' duty to show the limits, if any, of the segre­
gative effect —  simply skips to the ultimate conclusion that 
"plaintiffs have failed to meet the remedial portion of their 
burden of proof" (A.69), or "[a] preponderance of the evidence 
does not show an incremental segregative effect ...." A.74. In 
other instances, the court concludes, without any analysis or 
understanding of what constitutes intent to segregate, that "[a] 
preponderance of the evidence does not show a segregative intent

1/  (cont'd)
United States, 429 U.S. 990 (1976). This is the second time the 
district court has relied upon Justice Powell's minority views 
with respect to critical issues of controlling law. In his 
Supplemental Order on Remedy, filed July 13, 1973, after the 
Supreme Court's June 21, 1973, decision in Keyes v. School Dist. 
No. 1/ 413 U.S. 189 (1973), and before the first appeal to this 
Court, Judge Rubin focused exclusively upon the dissenting part 
of Justice Powell's separate opinion rather than apply the 
majority's controlling decision in Keyes to this case. See
A.15-16. ---

-4-



*•**" E.g., A.76. Still other evidence is disposed of with 
the double whammy that "[a] preponderance of the evidence has 
not disclosed any segregative intent or effect," without any sen­
sitivity to the required inquiry into intent and causation. E.g., 
A.83. (emphasis added). As the legal errors in the district 
court's opinion are the crux of this appeal, we analyze the opinion 
in detail at appropriate points in the Argument, infra.

The Facts
The relevant facts, and the errors and omissions of 

the district court's findings with respect thereto, are detailed 
in Appendices B-D, attached hereto. Appendix B, pp. 5a-6a, infra, 
provides an overview of the geography and demography of Dayton, 
Ohio, and its public school district. Appendix C, pp, 7a-23a, 
infra, discusses the dual school system of the Dayton school 
district through the time of Brown. Appendix D, pp. 24a-54a, 
infra, describes the continuation of this dual system after Brown 
through the time of the initial trial. In addition, the basic 
facts and the nature of the district court errors are discussed 
in their legal context in Argument III, pp. 34-61, infra. We 
arrange the brief in this manner in order to focus on the proper 
scope of judicial review and the fundamental legal errors com­
mitted by the district court.

ARGUMENT

On this appeal plaintiffs are entitled to judgment 
upholding the constitutional necessity of the systemwide remedy

-5-



which has been in operation since September 1976 if we demon­
strate, pursuant to controlling legal standards, that Dayton 
school authorities1 unconstitutionally segregative conduct had 
a systemwide impact through the time of the initial violation
trial. Dayton Bd. of Educ. v. Brinkman, ___ U.S.___ (1977),
slip op. 14. For, if Dayton school authorities did so cause the 
segregation of the Dayton public schools, all parties have always 
agreed that the systemwide remedy is appropriate.

Our Argument is organized into four parts. Argument 
I sets out the standards which govern this Court's review of the 
judgment below. Argument II discusses the applicable substantive 
law and the fundamental legal errors committed by the district 
court. Argument III then demonstrates how the district court's 
legal errors resulted in findings and conclusions which are not 
sustainable, both as a matter of law and as a matter of record 
evidence. This application of the controlling legal standards 
to the case compels the conclusion that the Dayton Board inten­
tionally operated a racially dual system of public education 
through the time of the initial trial in 1972. In Argument IV 
we close by showing that the systemwide remedy now in effect is 
therefore justified by the systemwide nature and impact of this 
constitutional violation.

I. THE CONTROLLING STANDARDS OF REVIEW

In its June 27, 1977, opinion in this case, Dayton 
Bd. of Educ. v. Brinkman, ___ U.S. ___, the Supreme Court focused

-6-



on the "proper allocation of functions between the district courts 
and the courts of appeals within the federal judicial system"
(slip op. 3), rather than review the entire record evidence of 
racial discrimination in order to determine its legal signifi­
cance. For purposes of its analysis the Supreme Court accepted 
the limited and ambiguous findings of the district court, which 
the Court determined related only to optional zones for three high 
schools, a violation "only with respect to high school districting." 
Slip op. at 7. Recognizing the as yet not fully reviewed but 
extensive record evidence of alleged intentional segregation, the 
Court noted that "this is not to say that the last word has been 
spoken as to the correctness of the District Court's findings as 
to unconstitutionally segregative actions on the part of the"
Dayton Board. Slip op. 12. The Court therefore remanded to the 
district court "for the making of more specific findings" (slip 
op. 12), but directed the systemwide plan to remain in operation 
in order to permit appropriate judicial review by the district 
court and this Court. Slip op. 13-14.

In arriving at this result, the Supreme Court was 
critical of the ambiguity and lack of specificity in the previous 
findings and conclusions of the district court (slip op. 6-8, 12); 
and the high Court also criticized the limited appellate review 
accorded by this Court in its previous opinions, which "neither" 
held "that the findings of the District Court [were] clearly 
erroneous" nor "that the District Court... misapprehended the law." 
Slip op. 11. Thus, the Supreme Court noted that this Court in

-7-



Brinkman I "did discuss at length what it described as 'serious
questions' as to whether Board conduct relating to staff assign­
ment, school construction, grade structure and reorganization, and 
transfers and transportation, should have been included" in the 
violation determination, but that this Court, in reserving decision 
on these issues, had "neither upset the factual findings of the 
District Court nor...reversed the District Court's conclusions of 
law." Slip op. 10. The Supreme Court also noted that this Court 
in Brinkman I "considered at somewhat greater length than had the 
District Court both the historical instances of alleged racial 
discrimination by the Dayton School Board and the circumstances 
surrounding the Board's [more recent desegregation] resolutions 
and the subsequent recission [sic] of those resolutions." Slip 
op. 9. But "this consideration was in a purely descriptive 
vein: no findings of fact made by the District Court were reversed
as having been clearly erroneous, and the Court of Appeals engaged 
in no fact-finding of its own based on evidence adduced before the 
District Court." Id.

In light of the Supreme Court's opinion, we there­
fore deem it appropriate to address at the outset of this Argument 
the inadequacy of the district court's findings and the appropriate 
scope of review by this Court. Both are controlled by Rule 52(a), 
Fed. R. Civ. P., and other settled principles of judicial review. 
Slip op. 9-11.

A. Inadequacy of the District Court's Findings. 
Rule 52(a) requires that "[i]n all actions tried

-8-



upon the facts without a jury..., the [district] court shall 
find the facts specially This requirement is that "there
must be findings, in such detail and exactness as the nature of 
the case permits, of subsidiary facts on which the ultimate con­
clusion ... can rationally be predicated." Kelley v. Everglades 
Drainage Dist., 319 U.S. 415, 420 (1943). The trial court's 
findings must be "sufficient to indicate the factual basis for 
the ultimate conclusion." Id, at 422. The purpose of this 
requirement, as Judge (now Chief Judge) Phillips has noted for 
this Court, is to aid the process of judgment in the trial court, 
as well as to assist the appellate court on review. B.F. Goodrich 
Co. v. Rubber Latex Products, Inc., 400 F.2d 401, 402 (6th Cir. 
1968). "'Statements conclusory in nature are to be eschewed... 
[because they are] useless for appellate purposes.'" Id. at 402, 
quoting Dalehite v. United States, 346 U.S. 15, 24n.8 (1953).
See also Lewis v. Pennington, 400 F.2d 806, 818 (6th Cir. 1968). 
This requirement that there be sufficient subsidiary findings of 
fact to show how the "ultimate conclusions" or "general findings" 
are arrived at is especially important in the context of school 
segregation litigation. Deal v. Cincinnati Bd. of Educ., 369 
F.2d 55, 63-65 (6th Cir. 1966), cert. denied, 389 U.S. 847 (1967); 
Dayton Bd. of Educ. v. Brinkman, ___ U.S. ___ (1977) , slip op. 12.

Despite the 43-page length of the district court's 
opinion in the instant case, the findings are deficient. For 
example, as we will discuss in subsequent parts of this brief, 
the district court failed to make findings of subsidiary facts 
on many important factual issues; frequently the court merely

-9-



summarizes a factual development, as it did with respect to the 
Board's creation in 1971 of five middle schools, and then leaps, 
without any supporting findings, to an. ultimate conclusion that 
"[a] preponderance of the evidence has not shown a segregative 
intent in the establishment of middle schools." A.77. Notwith­
standing these and similar shortcomings in the district court's 
purported findings, we do not ask this Court to vacate or reverse 
the judgment below with a remand on that score. For several 
reasons, at this juncture, we do not believe that the proper 
remedy on this appeal for the legal errors below is yet another 
remand to the trial court for further findings.

First, the requirement that there be findings of 
subsidiary facts relevant to significant matters in dispute is 
not a jurisdictional prerequisite to complete appellate review. 
Davis v. United States, 422 F.2d 1139, 1141-42 (5th Cir. 1970);
Dayton Bd. of Educ. v. Brinkman, ___ U.S. ___ (1977), slip op. 9;
Lee v. Demopolis City School System, 557 F.2d 1053 (5th Cir.
1977), cert, denied, 46 U.S.L.W. 3436 (U.S. Jan. 9, 1978).__.__
Second, appellate courts have ample authority to review the record 
and make necessary findings even if the trial court has failed to 
comply with Rule 52(a). See, e.g., id.; Withrow v. Larkin, 421 
U.S. 35, 44-46 (1975); Sampson v. Murray, 415 U.S. 61, 86n.58 
(1974); United States v. El Paso Natural Gas Co., 376 U.S. 651 
(1964); Cummins v. Parker Seal Co., 516 F.2d 544, 547-51 (6th 
Cir. 1975), aff'd by an equally divided Court, 429 U.S. 65 (1976). 
Third, as will be seen, most of the district court's fact-finding 
failures pertain to "non-demeanor" evidence, and to undisputed 
evidence, which this Court can readily evaluate. See, e.g.,

-10-



King v. Commissioner of Internal Revenue, 458 F.2d 245, 249
(6th Cir. 1972); Huard-Steinheiser, Inc, v. Henry, 280 F.2d 79,
84 (6th Cir. 196 0) . Finally, in our view, any remand to the

2 /dxstrict court for findings on specified matters would be futile.—
In all events, such a remand to the district court 

for further findings would unnecessarily and inappropriately pro­
long this dispute, which already is excessively protracted. If 
ever there was a paradigmatic case in which this Court is "justified 
in considering the appeal without remanding the case for more 
specific findings and so to save delay in adjudication," Huszar 
v. Cincinnati Chemical Works, Inc., 172 F.2a 6, 8 (6th Cir. 1949), 
this case surely is it. It is time for full and final judicial- 
review in this case, not further fencing between the parties and 
the trial court.

B. The Standard Governing Review of 
Findings of Fact._______________

Rule 52(a) provides: "Findings of fact shall not be
set aside unless clearly erroneous, and due regard shall be given 
to the opportunity of the trial court to judge of the credibility 
of the witnesses." As the late Mr. Justice Clark (Retired) stated

2/— The result in the dxstrict court has been foreordained almost 
from the day (June 27, 1977) that the Supreme Court announced 
its remand decision: On July 1, 1977, the district judge, by
conference telephone communication with counsel for both parties, 
announced his intention, without benefit of jurisdiction or even 
the benefit of having read the Supreme Court's opinion, to dis­
mantle the desegregation plan by the start of the 1977-78 schGol 
year. See plaintiffs' Motion for Stay and Injunction Pending 
Appeal at 2-4 and accompanying Appendix A (July 5, 1977 Memoran­
dum and Report to the District Court) (filed with this Court by 
certificate of service dated January 12, 1978).

-11-



for this Court in J. A. Jones Construction Co. v. Englert Eng. Co.,
438 F.2d 3, 5 (6th Cir. 1971), the "clearly erroneous" test has 
been "construed...to mean that the findings of fact are 'presump­
tively correct.1" The working definition of this test is estab­
lished in the oft-quoted language of United States v. United 
States Gypsum Co., 333 U.S. 364, 395 (1948):

A finding is "clearly erroneous" when, 
although there is evidence to support it, 
the reviewing court on the entire evidence 
is left with the definite and firm con­
viction that a mistake has been committed.

See also, e.g., Zenith Radio Corp. v. Hazeltine Research, Inc.,
395 U.S. 100, 148 (1969); United States v. Singer Mfg. Co., 374 
U.S. 174, 194 n.9 (1963). As Mr. Justice Frankfurter has said, 
"[djeference properly due to the findings of a lower court does 
not preclude the review...of... judgments" of significant public 
law importance. Baumgartner v. United States, 322 U.S. 665, 671 
(1944) .

The United States Gypsum test has been employed by 
this Court on numerous occasions in reversing judgments predicated 
on "clearly erroneous" findings of fact. See, e.g., Downs v. 
United States, 522 F.2d 990, 999-1003 (6th Cir.- 1974) (Celebrezze 
J.); Cummins v. Parker Seal Co, supra, 516 F.2d at 547-48 
(Phillips, C.J.); Gowdy v. United States, 412 F.2d 525 (6th Cir.)_ 
(Weick, C.J.), cert, denied, 396 U.S. 960 (1969); United States 
Steel Corp. v. Fuhrman, 407 F.2d 1143 (6th Cir. 1969) (Phillips, 
J.), cert, denied, 398 U.S. 955 (1970); Cordovan Associates, Inc. 
v. Dayton Rubber Co., 290 F.2d 858 (6th Cir. 1961) (Weick, J.).

-12-



As these and many similar cases reveal, the proper application 
of the United States Gypsum test is heavily dependent on the 
nuances of each case, with justice being the ultimate goal. The 
rules are not hard and fast. There are general principles, how­
ever, which assist in applying the test. These principles relate

3 /solely to the review of pure fact findings.—

(1) The importance of witness demeanor 
and credibility.__________________

"Rule 52(a) admonishes due regard for the trial
court's opportunity to assess the credibility of witnesses."
Zenith Radio Corp. v. Hazeltine Research, Inc., supra, 395 U.S.
at 122 n.18. Rule 52(a) derives from:

[t]he practice in equity prior to the 
present Rules of Civil Procedure [which] 
was that the findings of the trial court, 
when dependent upon oral testimony where 
the candor and credibility of the witnesses 
would best be judged, had great weight with 
the appellate court. The findings were 
never conclusive, however.

United States v. United States Gypsum Co., supra, 333 U.S. at 
395. Thus, the greatest deference required by Rule 52(a) is 
to be accorded those trial court findings that rest on assessments 
of the demeanor and credibility of witnesses. See, e.g., United 
States v. Yellow Cab Co., 338 U.S. 338 (1949); Wedding v. Wingo, 
483 F.2d 1131, 1136-37 (6th Cir. 1973), aff'd, 418 U.S. 461 (1974)

— The different standards of review for conclusions of law and 
mixed questions of law and fact are discussed in subsection C, 
infra, pp. 18-20-

3/

-13-



Kirkhof Mfg. Corp. v. Sem-Torq, Inc., 312 F.2d 578, 581 (6th Cir. 
1963).

We are not aware of any finding of the district 
judge in the instant case which is based on his assessment of the 
credibility of a "live” witness. Consequently, the "clearly 
erroneous" test, while not thereby rendered inapplicable, is 
considerably easier to apply; and findings not based on credibility 
choices "are deprived of the degree of finality which would other­
wise attach," Steiner v. Mitchell, 215 F.2d 171, 175, rehearing 
denied, 220 F.2d 751 (6th Cir. 1954), aff'd, 350 U.S. 247 (1956). 
Thus, "the trial court's customary opportunity to evaluate the 
demeanor and thus the credibility of the witnesses, which is the 
rationale behind Rule 52(a) ..., plays only a limited role here." 
United States v. General Motors Corp., 384 U.S. 127, 142 n.16 
(1966). We discuss this latter principle in greater detail in 
points (2) and (3) below. 2

(2) Inferences and conclusions to be 
___ drawn from undisputed facts.____

It seems to be settled that the "clearly erroneous"- 
rule "applies to factual inferences drawn from undisputed basic 
facts." Cordovan Associates, Inc, v. Dayton Rubber Co., supra,
290 F.2d at 859; accord, General Electric Co.- v. Sciaky Bros. , ____
Inc., 415 F.2d 1068, 1071 (6th Cir. 1969); but see United States 
v. E.I. DuPont DeNemours & Co., 353 U.S. 586, 598_n.28 (1957).
In applying the rule to such conclusions and inferences, however, 
there is no dispute that appellate courts are in a better position

-14-



to assess correctness than they are with respect to findings 
based on the credibility and demeanor of witnesses. National 
Latex Products Co. v. Sun Rubber Co., 274 F.2d 224, 247, rehearing 
denied, 276 F.2d 167 (6th Cir.), cert, denied, 362 U.S. 989 (I960); 
E. H. Sheldon & Co. v. Commissioner of Internal Revenue, 214 F.2d 
655 (6th Cir. 1954); Seagrave Corp. v. Mount, 212 F.2d 389, 394 
(6th Cir. 1954); Letcher County v. DeFoe, 151 F.2d 987, 990 (6th 
Cir. 1945). Much of the evidence in this case, as we will show, 
is undisputed; but in many instances the inferences and conclusions 
drawn therefrom by the district court are plainly erroneous.

(3) ''Non-demeanor1' or "paper11 facts.
Findings of fact not based on the testimony of "live” 

witnesses ■—  i.e., findings based on depositions, administrative 
records, documentary exhibits, etc. ■—  are nonetheless subject 
to the "clearly erroneous" standard of Rule 52(a). Ingram Corn. 
v. Ohio River Co., 505 F.2d 1364, 1369 (6th Cir. 1974) (O'Sullivan, 
J.); H. K. Forter Co. v. Goodyear Tire & Rubber Co., 437 F.2d 244 
(6th Cir.) (McCree, J.), cert, denied, 404 U.S. 885 (1971);
United States Steel Corp. v. Fuhrman, supra, 407 F.2d at 1145-46 
(Phillips, J.); General Electric Co. v. Sciaky Bros, Inc., supra, 
415 F.2d at 1071 (Edwards, J.). Statements to the effect that 
Rule 52(a) "is inapplicable" to findings based on "a bare tran­
script unaided by observation of the demeanor of the witnesses 
who testified," In re Clemens, 472 F.2d 939, 941 n.l (6th Cir.
1972) (Weick, J.), are not entirely accurate; but they do serve 
to emphasize that the rule "plays only a restricted role" in such

15



supra,circumstances. United States v. General Motors Corp,,
384 U.S. at 142 n.16. See also Neil v. Biggers, 409 U.S. 188,
193 n.3 (1972). This is so because "the District Judge [in that 
situation] had no better opportunity of judging the credibility 
of witnesses than does this Court, and ...[therefore] the findings 
... are not accorded the finality which would otherwise attach." 
Seagrave Corp. v. Mount, supra, 212 F.2d at 394 (Shackelford 
Miller, J.). We think Judge Peck has best synthesized these 
strains of thought in holding that such "paper" evidence is not, 
for that reason, deprived of "probative weight." "It does,' 
however, militate against the conclusiveness generally given 
findings jrtade by the District Court...." A. J. Industries, Inc. 
v. Dayton Steel Foundry Co., 394 F.2d 357, 361-62 (6th Cir. 1968). 
A great deal of dispositive evidence in the instant case is 
controlled by this discussion. 4

(4) Closer scrutiny where constitutional 
_______  rights are at stake ,________________

Appellate courts have "not hesitated.to undertake 
independent examination of factual issues when consti.tirti.onaL. 
claims may depend on their resolution." Berenyi v. Immigration 
Service, 385 U.S. 630, 636 (1967), and cases there cited. See 
also, e.g., Coleman v. Alabama, 389 U.S. 22, 23 (1967); New York
Times Co. v. Sullivan, 376 U.S. 254, 285 (1964); Norris v.____
Alabama, 294 U.S. 587, 589-90 (1935). The late Judge O ’Sullivan 
may have overstated this proposition when he wrote that "when 
dealing with questions of constitutional magnitude, we are not 
at liberty to accept the fact trier's findings merely because we

-16-



consider them not 'clearly erroneous'...." Guzick v. Drebus, 431 
F.2d 594, 599 (6th Cir. 1970), cert, denied, 401 U.S. 948 (1971). 
But he was clearly correct in the subsumed holding that special 
attention to factual issues is called for when constitutional 
rights are at stake. United States v. John J, Felin & Co,,
334 U.S. 624, 639-40 (1948) (Frankfurter, J.).

(5) The record as a whole.
In the final analysis whether the reviewing court

"is left with the definite and firm conviction that a mistake has
been committed," United States Gypsum Co., supra, depends upon
"a consideration of the evidence in the aggregate," Columbus
Outdoor Advertising Co. v. Harris, 127 F.2d 38, 42 (6th Cir.
1942), or, as the Court put it in Gypsum, 333 U.S. at 395, "on
the entire evidence. In the case at bar we believe, as shown in
Arguments II and III, infra, that most of the district court's
clearly erroneous findings of fact, both subsidiary and ultimate,
are the result of a complete misunderstanding of the law. But
if plaintiffs are to receive their day in this Court, resort to
the record is essential. In most respects, however, evaluation
of the record here will be for the same purpose and to the same
degree as in United States v. General Motors Corp,, supra, 384
U.S. at 142 n.16 (emphasis in original):

We resort to the record not to contradict 
the trial court's findings of fact, as 
distinguished from its conclusory "find­
ings," but to supplement the court's factual 
findings and to assist us in determining 
whether they support the court's ultimate 
legal conclusion that there was no [consti­
tutional violation].

-17-



It is accurate to say, in Justice Powell's words, that in this 
case "the dispute between the parties is not so much over the 
elemental facts as over the constitutional significance to be 
attached to them," Neil v. Biggers, supra, 409 U.S. at 193 n.3.
See also Dayton Bd. of Educ, v. Brinkman, ___ U.S. ___ (1977),
slip op. at 9-11.

C. The Standard Controlling Review of Questions 
of Law and Mixed Questions of Law and Fact.

Fundamentally, Rule 52(a) places no restrictions 
on this Court’s review of lower-court conclusions of law, even 
when based on findings of fact. United States v. United States 
Gypsum Co., supra, 333 U.S. at 394; United States v. Mississippi 
Valley Gen. Co., 364 U.S. 520, 526 (1961); United States v.
Parke, Davis & Co., 362 U.S. 29, 44 (1960); Cummins v. Parker 
Seal Co., supra, 516 F.2d at 547. See also Keyes v. School Dist.
No. 1, 413 U.S. 189, 198 n.9 (1973). The difference between a 
finding of fact and a conclusion of law is not always readily 
apparent. Compare Downs v. United States, supra, 522 F.2d at 
999 (question of negligence is a factual determination); Gowdy v. 
United States, supra (same), with University Hills, Inc, v. Patton, 
427 F.2d 1094, 1099 (6th Cir. 1970) (interpretation of written 
contract is not subject to "clearly erroneous" standard); Cordovan 
Associates, Inc, v. Dayton Rubber Co., supra, 290 F.2d at 860 
(same); Dickstein v. Seventy Corp., 522 F.2d 1294, 1297 (6th Cir. 
1975) (Phillips, C.J.), cert, denied, 423 U.S. 1055 (1976) (question 
of obviousness in patent law is "an ultimate conclusion of law").

18-



The labels used by the trial court are not determinative. Utzinger 
v. United States, 432 F.2d 485, 489 (6th Cir. 1970); Kochtitzky v. 
John A. Denie's Sons Co., 153 F.2d 520, 522 (6th Cir. 1946).
"Though labeled 'finding of fact,' it may involve the very basis 
on which judgment of fallible evidence is to be made." Baumgartner 
v. United States, supra, 322 U.S. at 671 (Frankfurter, J.).

Thus, mixed questions of fact and law are freely 
reviewable, unrestricted by the "clearly erroneous" standard of 
Rule 52(a). United States v. Weingarden, 473 F.2d 454, 460 (6th 
Cir. 1973); Johnson v. Salisbury, 448 F.2d 374, 377 (6th Cir.
1971), cert, denied, 405 U.S. 928 (1972); Ashland Oil & Refining 
Co. v. Kenny Construction Co., 395 F.2d 683, 684 (6th Cir. 1968) 
(Peck, J.). Noting that "[t]here are facts and facts," United 
States v. John J. Felin & Co., supra, 334 U.S. at 639, Mr. Justice 
Frankfurter held that "[w]here the conclusion is a 'composite 
of fact and law,'... this Court may certainly hold that as a matter 
of law the findings are erroneous." Id. at 639-40. "Finding so- 
called ultimate 'facts,'" he said in Baumgartner, supra, 322 U.S. 
at 671, "more clearly implies the application of standards of 
law." Thus, as Judge Weick has written for this Court, "[w]here 
a finding is of an ultimate fact in the making of which is involved 
the application of legal principles, it is subject to review." 
Cordovan Associates, Inc., supra, 290 F.2d at 860. School deseg­
regation cases are especially susceptible to this standard of 
review, for by their very nature they present circumstances "where 
'facts and their constitutional significance are too closely

19-



connected' and 'the standards and the ultimate conclusion involve 
questions of law inseparable from the particular facts to which 
they are applied.'" United States v. John J. Felin & Co., supra, 
334 U.S. at 640, quoting United States v. Appalachian Electric 
Power Co., 311 U.S. 377, 403 (1940).

Related to the principle that Rule 52(a) does not 
apply to mixed law/fact questions and law-dependent ultimate 
fact-findings, is the rule that factual conclusions "derived 
from the [trial] court's application of an improper standard to 
the facts... may be corrected as a matter of law." United States 
v. Singer Mfg. Co,, supra, 374 U.S. at 194 n.9. This rule has 
special applicability to situations where trial courts have util­
ized erroneous standards .and burdens of proof; in such instances 
reviewing courts are freed of the "clearly erroneous" standard, 
because lower court factual conclusions predicated upon improper 
proof standards are mistakes of law. Baumgartner, supra, 322 U.S. 
at 760-71; Dickstein v. Seventy Corp., supra, 522 F.2d at 1295-97; 
cf. Zenith Radio Corp) v. Hazeltine Research, Inc., supra, 395
U.S. at 122-125; Dayton Bd. of Educ. v. Brinkman, ___ U.S.
(1977), slip op. 9-11. As we will show in the remainder of this 
brief, this case proves "that facts do not assess themselves and 
that the decisive element is the attitude appropriate for judgment 
of the facts in a case like this." Baumgartner, supra, 322 U.S. 
at 666-67.

-20-



II. the district court failed to apply correct
PRINCIPLES OF CONSTITUTIONAL LAW__________

The district court apparently was of the view that 
the Supreme Court's decision in this case sub silentio and without 
dissent overrules, to an unknown extent, another decision (in 
another case from this Court) handed down the same day, Milliken
v’ Bradley, ___ U.S. _ (1977) (Milliken II), as well as Keyes
v. School Dist. No, 1, 413 U.S. 189 (1973); Swann v. Charlotte- 
Mecklenburg Bd. of Educ., 402 U.S. 1 (1971), and companion cases—^
Green v. County School Bd., 391 U.S. 430 (1968), and companion

5 /cases.- Necessarily, therefore, the district court also proceeded 
on the assumption that the Supreme Court must have overruled this 
Court's decisions in NAACP v. Lansing Bd. of Educ., 559 F.2d 1042 
(6th Cir. 1977), cert, denied, 46 U.S.L.W. 3390 (U.S. Dec. 12, 
1977); Bronson v. Board of Educ., 525 F.2d 344 (6th Cir. 1975), 
cert, denied, 425 U.S. 934 (1976); Oliver v. Michigan State Bd. 
of Educ., 508 F.2d 178 (6th Cir. 1974) , cert. denied, 421 U.S.
963 (1975), none of which the district court even bothered to 
cite. We say the court below "apparently" assumed that these 
cases are no longer good law because the court committed three 
fundamental legal blunders which would not have occurred if the * 5

4/— Davis v. Board of School Comm'rs, 402 U.S. 33 (1971); McDaniel 
v. Barresi, 402 U.S. 39 (1971); North Carolina State Board of 
Educ. v. Swann, 402 U.S. 43 (1971).

5 /—'Raney v. Board of Educ., 391 U.S. 443 (1968); Monroe v. Board 
of Comm'rs, 391 U.S. 450 (1968).

-21-



court had read these decisions and applied them even-handedly.
These errors of law go to the heart of the case, and they in­
fected everything else that the district judge did.

First, the district court misapprehended the legal
6 /relevance of the Board's conduct prior to the time of Brown I.—

The court simply ignored the established principle that if the 
Board was effectively operating a dual school system at the time 
of Brown, it thereafter "automatically assume[d] an affirmative 
duty 'to effectuate a transition to a racially nondiscriminatory 
school system,'... by eliminating 'all vestiges of state-imposed 
segregation.'" NAACP v. Lansing Board of Educ., supra, 559 F.2d 
at 1045, quoting Brown II, 349 U.S. 294, 301 (1955), and Swann,
402 U.S. at 15, respectively. See also Wright v. Council of the 
City of Emporia, 407 U.S. 451, 462 (1972). Second, the court 
refused to utilize the commonsense prima facie case approach to 
discerning segregative intent established in Keyes, and ignored 
the standards for determining intent prescribed in NAACP v. Lansing 
Board of Educ., Bronson and Oliver. Third, the court failed —  
indeed refused —  to apply the presumption and burden-shifting 
principles concerning causation and the impact of unconstitutional 
conduct. Keyes, Swann, Village of Arlington Heights v. Metropoli­
tan Housing Dev. Corp., 429 U.S. 252 (1977), and Mt. Healthy City 
Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), impose upon the defen­
dants the burden of showing that segregation would have resulted 
even if they had not engaged in intentional discrimination.

—^Brown v. Board of Educ., 347 U.S. 483 (1954).

-22



As a result of these three legal errors, the 
district court saddled plaintiffs with the impossible burden 
both of proving every facet of systemwide discrimination and of 
proving with precision every facet of systemwide impact. After 
a review of the applicable law in general, we will therefore 
analyze each of the district court's mistakes of law.

A. The Law in General.
In Green v. County School Board, supra, and compan­

ion cases, the Supreme Court refined the command of Brown II that 
school districts operating statutory dual systems must "effectuate 
a transition to a racially non-discriminatory school system."
349 U.S. at 301. Green emphasized that although the Court in 
Brown II had recognized that the transition would not be easy, 
"[sjchool boards... then operating state-compelled dual systems 
were nevertheless clearly charged with the affirmative duty to 
take whatever steps might be necessary to convert to a unitary 
system in which racial discrimination would be eliminated root 
and branch." 391 U.S. at 437-38, Finally, in Swann v. Charlotte- 
Mecklenburg Board of Education, supra, and companion cases, the 
Supreme Court held that the command "to dismantle dual school 
systems" (402 U.S. at 22) entails making "every effort to achieve 
the greatest possible degree of actual desegregation...[and] 
warrants a presumption against schools that are substantially 
disproportionate in their racial composition." Id. at 26.

In Keyes v. School District No. 1, supra, the Court 
for the first time addressed the constitutional principles appli­

2 3-



cable to school segregation in the so-called "northern" context 
in which state law did not mandate racial segregation at the 
time of Brown. Because of the absence of state laws mandating 
school segregation in this context, the Court determined that 
plaintiffs challenging such school segregation under the Fourteenth 
Amendment "must prove not only that segregated schooling exists 
but also that it was brought about or maintained by intentional 
state action." 413 U.S. at 198. In other words, plaintiffs must 
prove "de jure segregation" which is differentiated from "adven­
titious" segregation by official "purpose or intent to segregate." 
Id. at 208 (emphasis in original). Although the initial burden 
of proof in such cases is therefore on the plaintiffs, the Court 
also held (id. at 201):

[W]here plaintiffs prove that the school 
authorities have carried out a systematic 
program of segregation affecting a substantial 
portion of the students, schools, teachers, 
and facilities within the school system, it 
is only common sense to conclude that there 
exists a predicate for a finding of the 
existence of a dual school system.

The Supreme Court recognized that racially discriminatory prac­
tices of segregating blacks in one portion of a school district 
have a "reciprocal effect" on the remainder of the district:
"common sense dictates the conclusion that racially inspired 
school board actions have an impact beyond the particular schools 
that are the subjects of those actions." Id. at 203; see also 
id. at 201-03. Consequently, a "dual system" may be found to exist 
upon "proof of state-imposed segregation in a substantial portion

-24-



of the district...." Id. at 203. The Court, therefore, held 
that the Denver school district's "deliberate racial segregation 
policy with respect to the Park Hill schools [containing 37.69% 
of the black pupils in the system would be sufficient to] con­
stitute the entire Denver school system a dual school system"
(id. at 204), unless the school board could show "that Park Hill 
may be separated from the rest of the Denver school district as 
a separate, identifiable, and unrelated unit." Id., at 205.

The Court also noted that where such a "northern" 
dual system is found, "as in cases involving statutory dual 
systems, the school authorities have an affirmative duty 'to effect­
uate a transition to a racially non-discriminatory school system.'" 
Id., quoting Brown II. In determining whether school authorities 
have met this "affirmative duty," the Court explained one of the 
reasons supporting the Swann presumption against one-race schools 
in a system with such a history of segregation (413 U.S. at 211):

[A] connection between past segregative acts 
and present segregation may be present even 
when not apparent and... close examination 
is required before concluding that the con­
nection does not exist. Intentional school 
segregation in the past may have been a 
factor in creating a natural environment for 
the growth of further segregation.

See also 413 U.S. at 213-214.
Finally, in addition to allocating the burden of 

proof to defendants on any claimed limit to the impact of their in­
tentionally segregative conduct, Keyes also allocates the burden 
of proof on intent or purpose. Once plaintiffs show segregative

-25-



intent infected a meaningful aspect of defendants' school admin­
istration, "there is a high probability that... similar impermis­
sible considerations have motivated their actions in other areas 
of the system." Id. at 208. In these circumstances, defendant 
school authorities bear the burden of "adduc[ing] proof sufficient 
to support a finding that segregative intent was not among the 
factors that motivated their [other] actions." Id. at 210. See 
also 413 U.S. at 213-214.

These principles, as they apply in the so-called 
"northern" context, were anticipated by this Court, Bradley v. 
Milliken, 484 F.2d 215 (6th Cir. 1973) (en banc) , affd in 
relevant part, 418 U.S. 717, 738 n.18 (1974) ("Milliken I"), and 
they frequently have been applied by this Court in decisions 
regularly looked to for guidance by other Circuits. NAACP v. 
Lansing Board of Educ., supra; Bronson, supra; Oliver, supra; 
Higgins v. Board of Educ., 508 F.2d 779 (6th Cir. 1974); Berry 
v. School Dist., 505 F.2d 238 (6th Cir. 1974); Davis v. School 
Dist., 443 F.2d 575 (6th Cir.), cert, denied, 404 U.S. 913 (1971).

B. The District Court's Erroneous Disregard 
of the Pre-Brown Facts._________________

We show in Argument IIIA, pp. 37-43, infra, that at 
the time Brown was decided in 1954 about three-fourths of all 
black pupils in the Dayton district attended four schools official­
ly designated for blacks only and five other schools that had just 
been effectively converted (one had just been constructed) into 
black schools; over three-fourths of the system's white pupils

-26-



attended reciprocally created and maintained schools that were 
virtually.all-white. In addition, all of the black teachers in 
the system were assigned to the schools which had been deliber­
ately created or converted into blacks-only schools, such assign­
ments being made pursuant to an explicit and degrading policy of 
racial discrimination. These facts derive from undisputed evidence, 
evidence which led the United States in its amicus brief in this 
case to tell the Supreme Court that "[t]his case presents as 
clear an example of pervasive discrimination prior to Brown as 
the [Supreme] Court is likely to find in a State in which discrim­
ination was not required by statute." U.S.Br. at 23. This state- 
imposed system of intentional segregation was probably as perfect 
as it could have been without the aid of a state law mandating 
absolute apartheid. No showing was or could have been made that 
the resulting segregation was cabined "within a separate, identi­
fiable or unrelated unit" (Keyes, 413 U.S. at 205) of the Dayton 
school district. Under Keyes, therefore, no conclusion is per­
missible except that the Dayton Board was operating a dual system 
at the time of Brown.

The district court's error is found in the following 
conclusion from its opinion (A.69.):

While [the proofs of pre-Brown discrimina­
tion] evidence an inexcusable history of mis­
treatment of black students, no evidence has 
been presented by the plaintiffs to show that 
"the segregation resulting from those acts 
continues to exist." Keyes, supra, at 210.
In the absence of evidence showing their 
effect on "the racial distribution of the

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Dayton school population as presently 
constituted", plaintiffs have failed to meet 
the remedial portion of their burden of proof.—

This conclusion is wrong for two reasons. For one, it misallo- 
cates the burden of proof, as we discuss in the next subsections 
of Argument. But its second fundamental flaw is the failure to 
recognize, as this Court cogently noted in NAACP v. Lansing 
Board of Educ., supra, 559 F.2d at 1045, that a showing that a 
dual system existed at the time of Brown, "as in cases involving 
statutory dual systems, [imposes .upon] the school authorities 
... an affirmative duty 'to effectuate a transition to a racially 
nondiscriminatory school system.'" Keyes, 413 U.S. at 205, quot­
ing Brown II. Hence, after Brown the Board's duty was to dis­
mantle the non-statutory dual system that existed in 1954. No 
one contends, and no one could (see A.69-70 ), that the Board

7 /— In its 1973 opinion the district court simply discounted the 
egregious facts of pre-Brown discrimination because of its 
view that "[b]oth by reason of the substantial time that has 
elapsed and because these practices have ceased, ...[they] will 
not necessarily be deemed to be evidence of a continuing segre­
gative policy." A.2. That off-hand disposition, of course, 
also turned out to be a legal mistake in light of the Supreme 
Court's subsequently-issued opinion in Keyes, 413 U.S. at 210-11

We reject any suggestion that remoteness 
in time has any relevance to the issue of 
intent. If the actions of school authorities 
were to any degree motivated by segregative 
intent and the segregation resulting from 
those actions continues to exist, the fact of 
remoteness in time certainly does not make 
those actions any less "intentional."

The district court was therefore forced to substitute the 
rationale quoted in text.

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has ever complied with this duty.—^

This legal error standing alone is sufficient to 
warrant reversal and judgment for plaintiffs; for the perpetua­
tion of a dual system through the time of trial is a systemwide 
violation with systemwide impact requiring a systemwide remedy. 
Swann; Keyes; Dayton Board of Education. This error infected 
the court’s evaluation of the undisputed pre-1954 evidence, as 
well as the court's interpretation of post-1954 events. But 
without regard to the post-1954 proof (other than that showing 
failure to disestablish the dual system prior to the filing of 
this case), the district judge's error on this score would control 
decision even if his opinion in all other respects were impeccable. 
There are, however, many other errors of both law and fact which

O /

-Under the remedial principles of Brown II and its progeny, the 
Board was obligated from the time of Brown II to disestablish 
the basically dual school system inherited. To fulfill that 
obligation, the Board had to "make every effort to achieve the 
greatest possible degree of actual desegregation.... [Assuring] com­
pliance with its constitutional duty warrants a presumption against 
schools that are substantially disproportionate in their racial 
composition." Swann, supra, 402 U.S. at 26. Or, in the language 
of one of the Swann companion cases, the Board was required to 
"make every effort to achieve the greatest possible degree of 
actual desegregation, taking into account the practicalities of 
the situation." Davis v. Board of School Commissioners, supra,
402 U.S. at 37. Once having created a dual system, one consti­
tutional measure of subsequent school board action is its "effect­
iveness...in dismantling [the] dual system." Wright v. Emporia,
407 U.S. at 462. In this remedial context, "the racial impact 
of [the subsequent action], rather than its discriminatory pur­
pose is the critical factor." Washington v. Davis, 426 U.S. 229, 
243 (1976). (Not only did the Board never comply with these 
mandates, it actually aggravated the constitutional violation by 
continuing for the next fifteen years to engage in a number of 
racially discriminatory practices. See Argument III, infra.)

-29-



put plaintiffs' entitlement to judgment beyond a shadow of a 
doubt. We proceed to them, and urge the Court to do likewise so 
that judicial review in this case will be complete and final.

C. The Lower Court's Erroneous Standards of 
Determining Segregative Intent._________

The district court's error here is two-fold: the
court failed to utilize the burden-shifting principles of Keyes 
in deciding whether various Board policies and practices were 
the product of discriminatory intent; and, in deciding issues of 
intent vel non, the court failed to apply the applicable intent 
test, to-wit, "the court is free to draw an inference of segre­
gative intent or purpose from a pattern of official action or 
inaction which has the natural, probable and foreseeable result 
of increasing or perpetuating school segregation." NAACP v. Lansing 
Board of Education, 559 F.2d at 1047-48, and cases there cited; 
see also Bradley v. Milliken, supra, 484 F.2d at 222, aff'd in 
relevant part, 418 U.S. at 738 n.18. Proof of the second part of 
this error depends upon analysis of the lower court's findings.
See Argument III at pp. 40-41, 50-58, infra, where we make this 
showing.

The first part of the error —  refusal to employ 
prima facie case standards —  is more readily apparent, particu­
larly from the district court's failure to allow plaintiffs any 
evidentiary benefits from the undenied policies of explicit 
racial discrimination in pupil assignments pre-Brown, and in 
faculty assignments both pre- and post-Brown. This failure is

-30-



a manifest contradiction of the Supreme Court's express holdings 
in Keyes, 413 U.S. at 201, 203-05, 208-214. Obviously, the perva­
sive discrimination in public schooling through the time of Brown 
placed the burden of non-racial explanation on Dayton school author­
ities for conduct maintaining or aggravating segregation. In 
addition, the Board's post-Brown racially discriminatory faculty- 
assignment policies and practices, which continued until 1969 with 
only slight change from the pre-Brown policy of absolutely pro­
hibiting black teachers from teaching white children, further 
strengthened plaintiffs' prima facie case under Keyes. For in 
1969 HEW, under its mandate of Title VI of the Civil Rights Act of 
1964, objected to the Board's "policy of racially motivated 
assignment of teachers and other professional staff." S.Ct.A.415 
(PX 11A). Only thereafter did the Board begin to disestablish the 
dual system of faculty and staff assignments. But simple faculty 
desegregation that late in the day was plainly not enough to 
counter the entrenched effects of this longstanding practice of 
intentional segregation, which for over 60 years had "earmark[ed] 
schools according to their racial composition." Keyes, supra,
413 U.S. at 202.-/

9 /— The facts are discussed at greater length in Argument IIIB, 
infra. To summarize here, in Dayton the pre-Brown faculty- 
assignment policy did much more than just "earmark" schools as 
"black" or "white." As this Court determined in Brinkman I, the 
Dayton Board long "assigned all black teachers only to schools 
with all black pupils... pursuant to an explicit segregation 
policy of the Board." 503 F.2d at 697. Through 1951 this 
"explicit segregation policy" never allowed a black teacher to 
instruct a white child; as a result, every time the Board assigned 
black teachers to a class or school, its explicit policy and un-

[footnote cont'd on next page]
-31-



Such systemwide policies and practices of overt 
racial discrimination should have resulted in a presumption, in 
plaintiffs' favor, that other School Board actions having a segre­
gative effect were also the result of intentional discrimination. 
There are two aspects of this presumption applicable to this case. 
The first is that because the pre-Brown dual policy and post-Brown 
faculty-assignment de jure practices affected a substantial por­
tion of the system, these "racially inspired school board actions 
have an impact beyond the particular schools that are the subjects 
of those actions" ordinarily sufficient to render the system 
dual. Keyes, 413 U.S. at 203, 213. To overcome this presumption, 
the Board should have been required to demonstrate that its 
intentionally segregative practices were compartmentalized within 
"separate, identifiable and unrelated units" of the system so 
that in combination they affected less than the whole system.
Keyes, 413 U.S. at 201-05, 213. If the Board fails here in that 
burden, plaintiffs are entitled to comprehensive relief. Keyes, 
413 U.S. at 213.

Should the burden just described be met, it is then 
incumbent upon the Board to dispel the second presumption: "there

9/ (cont'd)
swerving practice was also to exclude or otherwise transfer all 
white students (and their white teachers) to other classrooms 
and schools and to assign only black students to these all-black 
schools. See pages 41-42, infra. There is little wonder, 
therefore, that, when the Board in 1951-52 substituted an osten­
sibly new policy concerned only with the racial preferences of 
white teachers and white schools, the former policy "effectively 
continued^in practice through the 1970-71 school year." Brinkman 
I_, 503 F. 2d at697-98. And the effect of this continuing racial 
practice on the identification of schools as "black" or "white" 
was nearly as great, albeit not as direct, as the former policy.

-32-



is high probability that where school authorities have effect­
uated an intentionally segregative policy in a meaningful portion 
of the school system, similar impermissible considerations have 
motivated their actions in other areas of the system." 413 U.S. 
at 208, To meet this second burden, the Board must show clearly 
and convincingly that "segregative intent was not among the factors 
which motivated their actions." 413 U.S. at 210. If the Board 
fails to meet this burden, "all-out desegregation" is required 
absent a showing by the Board that such intentional actions "were 
not factors in causing the existing condition of segregation."
413 U.S. at 214.

The district court committed another profound error 
by not abiding by these principles.

D. The District Court's Erroneous Allocation
of the Burden of Proof of Segregative Impact.

Finally, relying on Justice Powell's concurring 
opinion in Austin, the district court "impos[ed] a burden upon 
the plaintiffs to prove the effect of any purposeful segregative 
act...," A.67 . —  ̂ This proposition is indefensible, because 
it is foreclosed by binding Supreme Court decisions. This

— ^See note 1, supra. The district court relied upon, and quoted 
in full, footnote 7 of Justice Powell’s Austin opinion, 429 U.S. 
at 995 n.7. There is absolutely nothing in Justice Powell's 
language which supports, through any stretch of imagination, 
the conclusion reached by Judge Rubin. We note also that Judges 
Wisdom, Coleman and Tjoflat, on remand in Austin, had no trouble 
in reading Keyes (413 U.S. at 211 n.17) as requiring the School 
Board to bear the burden on this issue. See United States v. 
Texas Educ. Agency, 564 F.2d 162, 175 (5th Cir. 1977) (herein­
after, "Austin III").

-33-



"remedial," i.e., causation, impact or effect, portion of the 
burden of proof rests squarely on the wrongdoer, not the victim. 
Keyes, 413 U.S. at 211 n.17, 213-214; Arlington Heights, 429 U.S. 
at 270-71 n.21; Mt. Healthy City Board of Educ., 429 U.S. at 286- 
287; Swann, 402 U.S. at 26. Plainly, the Board bears the burden 
of proving that its intentionally segregative actions did not 
cause any segregation and that any segregative impact is limited 
in geographic extent or has become attenuated over time. Keyes, 
413 U.S. at 213—214; Swann, 402 U.S. at 26. The district court's 
error in imposing this burden on the wrong party also pervades, 
and therefore undermines, every aspect of the district court's 
opinion.

III. THE DISTRICT COURT'S CRITICAL FACTUAL
CONCLUSIONS ARE WRONG AS A MATTER OF LAW 
BECAUSE INDUCED BY THE APPLICATION OF 
ERRONEOUS LEGAL STANDARDS AND ARE IN 
ANY EVENT CLEARLY ERRONEOUS_____________

In many respects the subsidiary facts were not con­
troverted at trial. At the same time, almost all of the district 
court's findings of ultimate fact, or conclusory findings, are 
clearly erroneous in their own right; they are also wrong as a 
matter of law because of the application of erroneous legal 
standards, as shown in Argument II, supra. In other respects, 
subsidiary findings are also infected by legal error or are wrong; 
and in many instances concerning relevant facts subsidiary findings 
are omitted altogether. In Appendices B-D hereto we have therefore 
set forth the facts of record in considerable detail; at the end

-34-



of each major factual segment in the appendices, we contrast 
the district court's conclusions and point out the nature of its 
errors. In this Argument, then, we generally describe the dis­
positive facts without the interruption of burdensome details 
and record citations. But we emphasize that placing the details 
in appendices should not be taken as an indication that the Court 
does not need carefully to review the record. We have arranged 
our brief in this fashion for two purposes only: we believe
this format will be of greatest assistance to the Court; and 
we believe that it better enables us to show the basic errors of 
the trial court.

Preliminarily, a few overall observations about the 
district court's opinion are in order. As a technical matter, 
the opinion is organized so as to maximize confusion, minimize 
the reader's ability to glean a clear picture of the causes 
and history of racial segregation in the Dayton district, and 
otherwise to lend as much support as possible to the district 
court's basic theme that racial discrimination by Dayton school 
authorities has been the exception, not the rule, and that, indeed, 
while racism has pervaded most of Dayton's private and public 
life, the school system has miraculously remained free of such 
influences. For example, although the record conclusively demon­
strates that the Board engaged in across-the-board racial discrim­
ination prior to 1954 (Appendix C, pp.7a-23a, infra), the district 
court bifurcates these facts and isolates them into at least six 
different, and unrelated, parts of its opinion. See A.68-69,

-35-



75-76, 77-78, 81-83, 87-88, 93. By sprinkling these facts at 
random throughout its opinion, the court is able to obfuscate 
what is otherwise a rather unclouded picture of deliberate 
racial segregation at the time of Brown■

This opinion-writing technique is also supportive 
of the district court's refusal to apply correct legal standards. 
For example, by the time one gets to the discussion on Dunbar 
High School, created in 1933 and operated until 1962 as a city­
wide blacks-only high school (A.87-88), special attention 
is required in order to place these egregious facts into the 
context, discussed twenty pages and as many subject matters 
earlier {A.68-69), of humiliating, debilitating, unmitigated 
official pre-Brown discrimination. An additional problem with 
this approach is that it also makes it more difficult, on the 
face of the opinion, to employ commonsense evidentiary presump­
tions. An example is the discussion of site-selection practices. 
A.96-97. This discussion leaves the reader with the incorrect 
impression that the Board had never engaged in an act of 
intentional segregation in its entire history; this same discus­
sion would leave an entirely different impression if placed in the 
factual context of a board of education, such as the Dayton Board 
is, that did build schools for blacks only, that did refuse to let 
black teachers teach white kids, that did manipulate attendance 
patterns -—  through optional zones, site location, pupil transfer 
policies, etc. —  for racially segregative ends. The district 
court's opinion should be read with these points in mind.

-36



This Argument is divided into three main parts.
Subsections A and B deal with the lower court's errors of ultimate 
fact pertaining, respectively, to the pre-Brown and post-Brown 
periods. Part C then summarizes the effect of these errors and 
the correct conclusions to be drawn.

A. The Pre-Brown Dual System.
As set forth in Appendix C, pp. 7a-23a, infra, the 

Dayton Board was effectively operating a dual school system at 
the time of Brown. Plaintiffs' proof of the subsidiary facts 
was not controverted by defendants at trial. This uncontroverted 
record shows that, beginning as early as 1912, the Board deter­
mined that concentrations of black pupils in the public schools 
should be segregated from whites (pp. 7a-8a, infra). As the 
black population increased in West Dayton,— '7' the Board's 
segregation policies expanded concomitantly, so that what began 
as a segregated black class housed at the rear door of Garfield 
school developed into a four-class segregated frame building, sub­
sequently expanded by a portable in back of that school (pp. 8a-10a, 
infra); thereafter, Garfield itself was converted into a blacks- 
only school (p. 10a, infra). Then in the mid-1930's Willard 
was converted into an elementary school for blacks only (p. 11a, 
infra), and Dunbar High School came into being to serve only 
black students and faculty from all over the system (pp. lla-13a, 
infra). Between 1943-45 Wogaman, like Willard and Garfield

— ^The general geographical and demographical history and picture 
of Dayton is described in Appendix B, pp. 5a-6a, infra.

-37-



before it, was converted into an all-black elementary school 
(pp. lla-12a, infra). These segregative practices were reinforced 
by insidious practices (in-school discrimination, explicitly 
segregated recreation facilities, race-based pupil counselling 
practices) which discouraged black students from attending 
predominantly white schools in more than token numbers (pp. 8a-13a, 
nn.3-10, infra), and by a policy of not allowing black teachers to 
teach white children under any circumstances (pp. 8a-14a, infra). 
Supplementing these pervasive devices was joint participation 
by the Board with the official discrimination of public housing 
authorities (p. 14a, infra). The result was that by 1951-52 
(the last school year prior to 1964 for which enrollment data by 
race is available), 83% of all white students attended schools 
that were all- or virtually all-white; 54% of the black students 
were assigned to the four blacks-only schools with all-black staffs 
(the system was 19% black at this time), and another 19% of the 
black students were in adjacent schools which were about to be 
converted (as discussed below) into black schools (pp. 14a-15a, 
infra).

To this point neither the subsidiary facts nor the 
factual conclusions are in significant dispute: the Board had
intentionally segregated over one-half of its black students in 
blacks-only schools, taught by all-black faculties. But instead 
of holding that these facts imposed upon the Board a post-Brown 
duty to undo this segregation, the district court placed the 
burden on plaintiffs to prove that "the segregation resulting from 
those acts continues to exist." A.69, quoting Keyes, 413

38-



U.S. at 210, a page that makes clear that this burden rightfully 
falls on the Board, not the victims of discrimination. We have 
shown in Argument II, supra, that the court below committed legal 
error in assessing the importance of this uncontradicted proof.
Even more significantly, we also demonstrated in Argument II that 
the district court erred in not realizing that these facts con­
stituted the Dayton district a dual school system, thereby sub­
jecting it, without more, to the remedial principles of Brown II 
and its progeny. These errors also caused the court to misconceive 
the importance of the Board's policy of discriminatory teacher 
assignments and the so-called West Side reorganization of 1951-52, 
to which we now turn.

The West Side reorganization facts are set out in 
Appendix C, pp. 16a—21a, infra. The district court did not analyze 
these facts in the context of the racial dualism then being 
practiced by the Board; under that method of analysis, and under 
the application of the Keyes burden-shifting principle, the burden 
of proof as to the meaning of these facts should have been borne 
by the Board. In any event, the facts are clear; only their legal 
significance and the appropriate inferences to be drawn are in 
dispute.

The district court's suggestion that the West Side 
reorganization "was an experiment in integration, and was intended 
as such" (A.75), is a completely misleading characterization 
of the facts. The court's conclusion, immediately following 
the statement just quoted, is that the Board's "purpose

39-



was to enable black students to go to an integrated rather than
an all-black school if they chose to do so." Id. This is getting 
somewhat closer to what may be half of the truth, which is that 
the Board, under continuing pressure from the black community to 
stop mistreating black children, proposed two alternative "plans," 
neither of which anyone familiar with the facts could possibly 
have thought would actually result in integration. The Board's 
purpose in these proposals was to try and appease the black com­
munity without seriously breaching the status quo of dual school­
ing in a system with increasing numbers of blacks. This point is 
indisputable because neither of the Board-proposed options recom­
mended that the status of the four blacks-only schools be altered
in any respect, let alone be "integrated," by the assignment of

12/nearby white children or faculty.— / And beyond doubt, the option 
the Board implemented could not foreseeably have resulted in any­
thing other than further entrenchment of the dual system, which 
is what happened. See Appendix C, pp. 16a-21a, infra. That this 
segregative result was also actually intended by the Dayton Board 
represents the other half of the truth about the West Side 
reorganization. Three concomitant, intentionally segregative 
actions taken by the Board indisputably prove this second point: 
the placement of optional zones in white residential areas to allow

12 /—  Instead, the Board merely (1) substituted optional zones to 
guarantee the ability of nearby whites to continue to avoid 
attendance at the all-black schools, as they had since the 
conversion of these schools under the Board's prior transfer 
policy, and (2) continued to assign virtually all-black faculty 
to the all-black schools pursuant to a new, but still explicitly 
racial, policy. See Appendix C, pp. 17a-18a, infra.

-40-



whites to escape the already heavily black "mixed schools" to which 
blacks from the all-black schools were assigned; the substitution 
of a new policy of systemwide faculty segregation expressly pre­
mised on racial discrimination; and the construction of a new 
elementary school on the site of the black public housing project 
and assignment of all black students and virtually all-black 
faculty thereto. See Appendix C, infra, pp. 17a-18a, 21a-22a.

The basic error of the district court in evaluating 
these events was its refusal to evaluate the West Side reorganization 
in light of the plain fact that the Board was at that time operating 
a basically dual school system. This is an error of law in our 
view; but if the district court's conclusions about these circum­
stances are viewed as pure fact determinations, then those conclu­
sions are also clearly erroneous.

The court made similar analytical mistakes in its 
evaluation of the Board's faculty-assignment policies. Again, the 
subsidiary facts are not in controversy. See Appendix C, pp. 21a- 
23a, infra. Prior to the 1951-52 school year, the Board refused 
to let black teachers teach white children; pursuant to this 
explicit segregation policy, the Board assigned all-black faculties 
to the four all-black schools and all-white faculties to the rest 
of the schools. In 1951-52, the Board substituted a new, but 
unforgiveably demeaning, policy that black teachers could be 
assigned to white schools whenever "such communities are ready 
to accept negro [sic] teachers" (S.Ct.A.481 (PX 21)), "but it [the 
Board] will not attempt to force white teachers, against their

-41-



Id. (emphasis added). Thiswill, into [black schools]." 
racially discriminatory policy bespeaks segregation: not just 
segregation of teachers, not just random, isolated or unrelated 
acts of errant discrimination, but a policy of intentional, 
systematic racial segregation in all aspects of public school 
operation. No other conclusion is permissible.

Again, Judge Rubin simply failed to see the signifi­
cance of these facts and their conclusive nature with respect to 
plaintiffs’ contention that the Board was effectively operating 
a dual system at the time of Brown. He overlooked the very obvious 
fact that the Board's pre-Brown faculty-assignment policies operated 
hand-in-glove with the discriminatory pupil-assignment practices, 
proving beyond doubt that the Board was guilty not only of "intent 
to segregate," but also of subjective racial malevolence. It is 
thus absurd for the district court to argue that "[i]n every 
specific instance brought to the Court's attention in which black 
faculty were assigned to black schools, the school was already
identifiable as being black because of the racial population of

13 /the students." A.73.— • Discrimination in one aspect of 
school administration hardly can be justified, and certainly not 
legalized, on the theory that the same result was being accom­
plished through other modes of discrimination.

13 /— - It is not clear from the opinion whether this statement is 
intended to apply to pre-Brown practices. If it is, it is 
clearly erroneous: in the four blacks-only schools created
before 1954 all-black faculties were assigned simultaneously 
with all-black student bodies. See Appendix C, pp. 17a-18a, 
infra. The court's statement is also clearly erroneous with 
respect to post-Brown faculty-assignment practices, discussed 
below in Subsection B.

-42-



In sum, the Board was operating a dual school system 
at the time of Brown. To the extent the district court's opinion 
is read as making findings of fact to the contrary, such findings 
are clearly erroneous. "On the entire evidence" it is inescapable, 
and we think the Court will be "left with the definite and firm 
conviction[,] that a mistake has been committed." United States 
v. United States Gypsum Co., supra, 333 U.S. at 395; see Argument 
IB, supra. The district court's findings and conclusions are 
also infected with legal error; and to the extent the district 
court's opinion is read as making a contrary conclusion of law, or 
failing to reach any conclusion at all, the trial court's errors 
relating to the pre-Brown facts are legal mistakes as set forth 
in Argument II, supra.

B. The Post-Brown Era: Unabated Perpetuation
of the Dual System._______________________

As we have said in Argument II, supra, our position 
is that the extensive intentional discrimination being practiced 
by the Board at the time of Brown constituted the Dayton district 
a dual school system. Thereafter, the Board was automatically 
subject to the duty to uproot that system. For purposes of this 
subsection of Argument, however, we assume arguendo that the pre- 
Brown deliberate segregation rendered the system only partially 
dual, and that an evaluation of the post-Brown facts is necessary 
in order to conclude that the Board intentionally engaged in 
systemwide segregation. Obviously, this assumption for purposes 
of argument does not render the Board's pre-Brown conduct irrel­

-43-



evant. Indeed, a basic legal flaw in the district court's 
analysis of the post-Brown facts is its failure to give plaintiffs 
any of the evidentiary benefits which flow from the proof of 
deliberate, even subjective, discrimination at the time of Brown.
As we pointed out in Argument II, supra, plaintiffs are entitled to 
have the post-Brown facts assessed pursuant to the presumption that 
Board policies and practices having a segregative effect were 
"not adventitious," Keyes, 413 U,S. at 208; in other words, "the 
school authorities bear the burden of showing that their actions 
as to other segregated schools within the system were not also 
motivated by segregative intent." Id. at 209.— ^ The post-Brown

14/—  In Keyes the Court applied considerations of "policy and fair­
ness" in concluding that a burden-shifting principle is approp­
riate in racial segregation cases such as this, where plaintiffs 
prove a substantial amount of intentional segregation. 413 U.S. 
at 209, quoting 9 J. Wigmore, Evidence § 2486, at 275 (2d ed. 
1940) . We think this burden-shifting approach also finds ample 
support in the "ordinary rule" that a party has the burden of 
proving facts peculiarly within its own knowledge. United 
States v. New York, N.H. & H.R.R., 355 U.S. 253, 256 n.5 (1957). 
This rule is particularly appropriate in complex school segre­
gation cases such as this. As this Court held in Rolfe v.
County Board of Educ. of Lincoln County, 391 F.2d 77, 80 (6th 
Cir. 1968), "where a history of racial discrimination is shown 
to exist, as is the case here, the burden of showing nondiscrim­
ination is on the party having the power to produce the facts." 
"Northern" school cases such as the instant case fit this rule 
perfectly. While it is true that many of the relevant facts 
(e.g., construction of new schools, boundary changes) are 
"public" knowledge, it is also true that the segregative intent 
underlying these "public" facts is rarely above board. See 
Arlington Heights, supra, 429 U.S. at 265. The inherent dif­
ficulty of showing purpose or intent, combined with the mis­
match of resources (full-time, fuly-paid school board lawyers 
and professional staffs opposed to the limited resources of 
private plaintiffs, even those with the backing of civil rights 
organizations), imposes a greater burden on plaintiffs, even 
under a burden-shifting standard, than the ordinary civil 
litigant ever faces. Hence, when plaintiffs such as those here

[footnote cont'd on next page]

-44-



record and the district court's findings should thus be analyzed
with the burden of non-racial explanation on the Board. The
Board has not met its burden. — ' We also show, moreover, that15 /

14/ (cont'd)
prove intentional discrimination with respect to some meaningful 
portion of the school system, justice demands that the burdens 
of proof shift to the school board. These points are not partic­
ularly urgent in the present case, because plaintiffs here have 
made out an overwhelming case of intentional system-wide segre­
gation .

15 /—  In Keyes the Court approvingly cited a number of lower court 
decisions holding that "in a school system with a history of 
segregation, the discharge of a disproportionately large number 
of Negro teachers incident to desegregation 'thrust[s] upon the 
School Board the burden of justifying its conduct by clear and 
convincing evidence.'" 413 U.S. at 209. See also Rolfe v.
County Bd. of Educ., supra. We think "clear and convincing 
evidence" is the degree of proof required of a school board 
responding to a prima facie case consisting of a showing of 
intentional racial segregation with respect to a significant 
portion of the system.
Such a school board should be put to a "higher degree of proof 
than applies in a negligence case." Woodby v. Immigration & 
NaturalizationService, 385 U.S. 275, 285 (1966). See generally 
C. McCormick, Law of Evidence § 320, at pp. 679-81 (1954); 9 
Wigmore, Evidence § 2498 (3d ed. 1940); McBain, Burden of Proof: 
Degrees of Belief, 32 Calif. L. Rev. 242 (1944). A "clear and 
convincing” or "clear, unequivocal and convincing" standard of 
proof is especially appropriate where a constitutional right 
or human liberty is at stake. See, e.g. , Berenyi v. District 
Director, 385 U.S. 630, 636-37 (1967); Woodby v. Immigration & 
Naturalization Service, supra; New York Times Co. v. Sullivan,
376 U.S. 254, 285-86 (1964); Costello v. United States, 365 U.S. 
265 (1961); Nowak v. United States, 356 U.S. 660 (1958);
Gonzales v. Landon, 350 U.S. 920 (1955); Schneiderman v. United 
States, 320 U.S. 118 (1943). In employment discrimination cases, 
for further examples, the courts, including this Court, have 
uniformly required employers to respond to prima facie cases of 
systematic discrimination with "clear and convincing" evidence. 
See, e.g., Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976);
Meadows v. Ford Motor Co., 510 F.2d 939, 946-48 (6th Cir.), 
cert, denied sub nom., 525 U.S. 998 (1975); Baxter v. Savannah 
Sugar Refining Corp., 495 F.2d 437, 444-45 (5th Cir.), cert, 
denied, 419 U.S. 1033 (1974); Pettway v. American Cast Iron

[footnote cont'd on next page]

-45-



even if plaintiffs bear the burden of persuasion on these issues, 
the adverse findings of the district court are clearly erroneous.

We summarize the District Court's errors concerning 
the post-Brown facts in six categories, with due regard to their 
inter-relationship and the prior history of intentional discrim-

15/ (cont’d)
Pipe Co., 494 F.2d 211, 259-60 (5th Cir. 1974); Johnson v. 
Goodyear Tire & Rubber Co., 491 F.2d 1364, 1374-80 (5th Cir.
1974) ; United States v. Chesterfield County School Dist,, 484 
F.2d 70, 72-73 (4th Cir. 1973); Cooper v. Allen, 467 F.2d 836,
840 (5th Cir. 1972).
Such a degree of proof is called for in cases such as the present 
one by "the rule ... that racial classifications are to be sub­
jected to the strictest scrutiny and are justifiable only by the 
weightiest of considerations." Washington v. Davis, 426 U.S.
229, 242 (1976). See also Hunter v. Erickson, 393 U.S. 385 
(1969); McLaughlin v. Florida, 379 U.S. 254 (1964); Loving v. 
Virginia, 388 U.S. 1 (1967). While the "strict scrutiny" 
standard relates to the burden of justification, as distinguished 
from the burden of proof, we submit that exacting evidentiary 
requirements are essential to securing the constitutional inter­
ests protected by the "strict scrutiny" rule. Certainly, "the 
duty of prevailing by a mere preponderance of the evidence" 
(Woodby, supra, 385 U.S. at 285), is incompatible with that goal. 
Here plaintiffs have established, prima facie, an intentional 
system-wide "racial classification." "Strict scrutiny" mandates 
that the Board must disprove that case by "clear and convincing" 
evidence. It is under just such a standard, we believe, that the 
Supreme Court has "never suggested that plaintiffs in school 
desegregation cases must bear the burden of proving the elements 
°f 3ure segregation as to each and every school or each and 
every student within the school system." Keyes, 413 U.S. at 200. 
If we are right about the Board's burden of proof, then we are 
clearly correct in saying that the Board has"not met its burden. 
The "clear and convincing" standard requires the Board to demon­
strate that it is "highly probably true" that the presumptions 
raised by plaintiffs' prima facie case are unfounded. See 
McBain, supra, 32 Calif. L. Rev. at 254, 262-63. Given~our view 
of the strength of the record in this case, however, we are 
confident that the Board cannot meet its burden by a preponder­
ance of the evidence, to say nothing of clear and convincing 
proof.

46-



ination: (1) faculty and staff assignments, (2) optional zones
and attendance boundaries, (3) school construction, closing and 
site selection, (4) grade structure and reorganization, (5) pupil 
transfers and transportation, and (6) Board rescission of a 
Board-adopted plan of desegregation.

(1) Faculty and staff assignments.
The district court's errors in evaluating the Board's

post-Brown discrimination in the assignment of faculties and
staffs are similar to the mistakes, discussed in subsection A
above, made in assessing the pre-Brown faculty policies. The
court makes a number of clearly erroneous findings, e.g., that
"by 1969 all traces of segregation were virtually eliminated."

16/A.73.—  In view of the uncontroverted or indisputable 
facts (see Appendix D, pp. 24a-29a, infra), however, even 
the district court accepted the undeniable fact that the

—  This clearly erroneous finding, see Appendix D. p. 29a,
infra, is induced by the court's uncritical acceptance of the 
Board's "policy of dynamic gradualism" (A.72), which was 
unabashedly racist in origin and implementation (see pp. 41-42, 
supra), as well as by the court's view that "[t]he racial quota 
imposed upon the Board by HEW in 1969 edged the legal limit 
in requiring racial balance in all of the schools of the system." 
A.73. First of all, HEW, by requiring the Board to completely 
desegregate faculties, was merely following the law, United 
States v. Montgomery County Bd, of Educ., 395 U.S. 225 (1969), 
except that most school districts at that time were allowed 
only one year, rather than the two HEW allowed Dayton, to 
eliminate racially identifiable faculty-assignment patterns 
resulting from de jure segregation practices. See Singleton v. 
Jackson Municipal Separate School Dist., 419 F.2d 1211, 1217-18 
(5th Cir.) (en banc), rev'd on other grounds sub nom., 396 U.S. 
290 (1970). Second, the court's view that HEW was "edg[ing] the 
legal limit" is not credible to anyone, including the courts, 
familiar with HEW's persistent unwillingness to obey the law.
See Appendix D, p. 48a, n.30, infra.

-47-



Board was long guilty of overt racism in its faculty-assignment 
practices (A.73), whose vestiges continued for many years 
after Brown.— ^ And, as this Court noted in Brinkman I, 503 F.2d 
at 697-698, the substitution of new faculty segregation policies 
and practices effectively continued the racial duality in staff 
assignments at least through 1971. Astonishingly, however, the 
district court could find no probative value in these facts with 
respect to other aspects of school operation, leading the court 
to the plainly untenable (i.e,, clearly erroneous) conclusion 
that systematic teacher-assignment discrimination not only is not 
reflective of pupil-assignment policies, but also has no impact 
upon pupil-attendance patterns.

In addition to these clearly erroneous conclusory 
findings, the district court also erred as a matter of law in 
failing to recognize the significance of intentional faculty segre­
gation as a part of the Board's perpetuation of the pre-Brown 
dual system. The court erred further in not utilizing the faculty- 
segregation proof as an element of plaintiffs' prima facie case

17 /— 'As previously noted (see note 13, supra), however, the court's 
statement that in "every instance" of faculty-assignment dis­
crimination "the school was already identifiable as being black 
because of the racial population of the students" (A.73), is, 
quite aside from the absurdity of this "chicken or egg" 
inquiry, clearly erroneous. For example, in 1962 the Board 
opened the new Dunbar and simultaneously assigned to that school 
both a virtually all-black faculty and a virtually all-black 
student body. See Appendix D, pp. 38a-39a, infra. As a result 
of the lower court's cavalier disregard of such uncontroverted 
evidence, its handling of faculty segregation issues borders on 
sheer fabrication.

-48-



and thereby in failing to shift to the Board the burden of dis­
proving the resulting commonsense presumption that the Board's 
other practices were undertaken with segregative intent. These 
fundamental legal flaws were then compounded by saddling plaintiffs 
with the additional burden of proving specific causal links 
between the system-wide faculty-segregation practices and the 
wide-spread pupil segregation extant at the time of trial.
Of course, under the controlling law, this burden also is to be 
borne by the Board, not the hapless victims of racial mistreatment. 
See Argument II, supra. In short, the district court is as com­
pletely wrong about both the factual and legal significance of 
faculty segregation in this case as it is possible to be.

(2) Optional zones and attendance 
boundaries.__________________

In his 1973 opinion, Judge Rubin determined that 
some optional attendance zones had been created for racial reasons, 
and that these and others had clear racially segregative effects.
A.5. He also then recognized that "an 'optional attendance zone' 
is a limitation upon this ['neighborhood school'] concept and if 
carried to an ultimate conclusion, effectively destroys it." A.7. 
On remand from the Supreme Court, however, the earlier find-

18/— / On this score the district court has confused the question of 
systemwide segregative intent with the question of segregative 
impact, a practice that pervades the court's entire approach of 
analyzing specific facts in total isolation from all other facts 
—  as though this case were hundreds of separate and distinct 
lawsuits brought by each class member to complain solely about 
state-imposed segregation's particular curse upon him.

-49



ings were repudiated (A.81-87), and the court also refused to 
assign any significance to the segregative nature of the two 
city-wide high school optional zones, Dunbar for blacks and Pat­
terson Co-op for whites. A.87-90. In so treating these 
classic examples of unadulterated segregation, the district court 
drew inferences from the basic facts which are clearly erroneous 
in their own right, and which are dependent upon three central 
legal errors: the failure to recognize the Board's optional
attendance policies as a perpetuation, rather than an eradication 
(as the Board's duty required), of the inherited dual system; 
the ever-present failure to afford plaintiffs the burden-shifting 
benefits of their prima facie case; and the failure to evaluate 
the basic facts in light of the "foreseeability" test of segre­
gative intent laid down in Lansing, Bronson and Oliver. See 
Argument II, supra. The basic facts of record and the required 
ultimate conclusions are set out in Appendix D, pp. 30a-37a, 
infra.

But the district court's mistaken factual inferences 
would be apparent even without this knowledge of the court's 
errors of law. For example, the Jackson/Residence Park (A.81- 
82) and Roosevelt/Colonel White (A.82-83) options were created 
in 1951, a time when the Board was engaged in extensive racially 
dual practices and just a short time prior to the six optional 
zones created in conjunction with the blatantly discriminatory 
West Side Reorganization. By themselves these facts create a 
virtually conclusive inference, even if no burden of explanation

-50-



were placed on the Board, that these particular optional zones 
were created for segregative purposes. The district court's 
contrary conclusions, in contrast, are simply incredible.

The clear meaning of these pre-Brown optional 
attendance zones result in another inference, albeit rebuttable, 
that the nine or so post-Brown optional zones having demonstrable 
racial effects (see Appendix D, p.31a, n.19, infra) were also 
created or maintained for segregative purposes. Viewed in the 
light of the facts discussed heretofore —  facts of intentional 
discrimination that "creat[ed] a natural environment for the growth 
of further segregation," Keyes, 413 U.S. at 211 —  the Board cannot 
meet its burden of non-racial explanation for segregative optional 
zones under any appropriate standard (see note 15, supra). Such 
is precluded by the very ambiguous nature of the so-called 
"unofficial criteria" (A.81) asserted by the Board as justifica­
tion. The record as a whole shows that racial considerations 
infected these optional zones, which cannot be explained by the 
consistent application of neutral criteria. See Appendix D, pp. 
30a-34a, infra. The district court's contrary conclusion is 
clearly erroneous.

With respect to the city-wide high schools, the 
district court's findings are even more unbelievable. A.87-90.
The court, of course, acknowledges the inescapable fact that 
from 1933 to 1962 the Board openly operated Dunbar as a blacks- 
only high school for black students from all over the city, but 
the court then reaches the astounding conclusion that "the effects

-51-



of the Board's segregative acts [acts, mind you, that continued 
until 1962 vis-a-vis this very same school building] may have 
lingered [only] into the 1940's"! A.88. How the effects of 
acts can terminate 20 years before the acts themselves cease 
is not revealed in the district judge's o p i n i o n . T h e  only 
conceivable explanation, however, is that black people would have
insisted upon being discriminated against even if the Board had

20/been unwilling.—  The district.court's treatment of the Dunbar 
facts defies human experience, in addition to being clearly

19/—  As discussed next in connection with school construction, the 
segregative acts with respect to the original Dunbar building 
did not cease in the least respect in 1962; they were simply 
redirected at the same schools with different names, as well as 
at new schools.

20/—  Perhaps there are other explanations, but they are equally 
implausible. Consider, for example, the following "finding": 
"The effects of the Board of Education's segregative acts in 
1933 were totally subsumed in the effects of five to six decades 
of housing segregation in which the Board played no part."
A.88. There are four fallacies in this statement. First is 
the implicit proposition that the Board's only "segregative 
acts" occurred in 1933, as if operating Dunbar as a blacks- 
only, city-wide school for the next three decades entailed 
no additional segregative acts and otherwise was harmless error. 
Second, the Board did play a direct and explicit part in 
housing segregation, including by the very location of such a 
city-wide, blacks-only school in the heart of the black core.
See Appendix C, pp. lla-13a, infra. Third, the finding totally 
ignores the direct impact and reciprocal effect of such a 
city-wide, blacks-only high school on the racial composition 
of white high schools throughout the city. Finally, the 
statement completely overlooks the fact that such intentionally 
segregative practices "may have a profound reciprocal effect 
on the racial composition of residential neighborhoods within 
a metropolitan area, thereby causing further racial concentra­
tion within the schools," Keyes, 413 U.S. at 202. See also 
Swann, 402 U.S. at 20-21, readopted in Keyes, 413 U.S. at 
202-03. --

-52-



erroneous.21/

(3) School construction, closing and 
site selection._________________

The basic facts are discussed in Appendix D, 
pp. 37a-41a, infra. The district court discusses site selection, 
construction of new schools and additions, use of portables 
and school utilization at A.90-97. In addition, the 1962 
construction of the new Dunbar High School (A.87-89) and the 
conversion of the old Dunbar into McFarlane Elementary (A,78- 
79) are discussed at separate places in the opinion. The court's 
ultimate conclusions about these matters are clearly erroneous.
The court's findings and conclusions are infected by legal 
errors, first, in not evaluating this evidence in light of 
plaintiffs' prima facie case, and, second, in not applying the 
Lansing/Bronson/Oliver "natural,probable and foreseeable result" 
test. Judge Wisdom has described this latter test as "the vener­
able common law tort principle that a person intends the natural 
and foreseeable consequences of his actions," Austin III, supra, 
564 F.2d at 168, a "presumption [that] is especially probative in 
assessing the official intent behind such affirmative school board

21/— The district court's findings (A.89-90) with respect to 
Patterson Co-op, operated for many years in intentionally 
discriminatory fashion for the benefit of whites to the 
exclusion of blacks, are also clearly erroneous. See 
Appendix D, p. 31a, n.20, infra.

53-



decisions as those concerning school locations, the construction 
and renovation of schools, the drawing of student attendance 
zones, and the assignment of faculty and staff." Id. at 169. As 
this Court said in Lansing, 559 F.2d at 1056: "School construction
which promotes racial imbalance or isolation is an important indi­
cium of a de jure segregated school system."

One far-reaching example will illustrate the nature 
of the district court's errors. .In 1962 the following segregative 
acts occurred all at once: The blacks-only Willard and Garfield
schools were closed. The blacks-only Dunbar High School was con­
verted into McFarlane elementary school. Most of the children 
from the nearby closed Willard and Garfield attendance areas were 
assigned to McFarlane, which opened with an all-black pupil popu­
lation and an all-black faculty. The remaining portions of the 
Willard and Garfield attendance areas were assigned to the all­
black Irving and Miami Chapel elementary schools. At the same 
time, a newly-constructed Dunbar High School, located in a black 
neighborhood at the corner of the school district farthest from 
substantial white residential areas, opened with a virtually all­
black student body and faculty. This is unadulterated creation 
and perpetuation of segregation. The district court's refusal 
so to hold is clearly erroneous and wrong as a matter of law.

These and similar facts revealing intentional segre­
gation in the areas of school construction, location, closing and

-54-



r
. , 22/utilization,—  coupled with the other elements of plaintiffs 

Priraa facie case, should have shifted to the Board the burden of 
proving that other of their conduct in these areas was not similarly 
infected with discriminatory intent. This they cannot do, for 
even the district court recognized that their approach to these 
features of school administration were "imprecise" and "haphazard." 
A.91. Opportunitites for discrimination thus abounded, cf.
Castaneda v. Partida, 430 U.S. 482 (1977); Mitchell v. Rose,
No. 77-1272 (6th Cir. Jan. 9, 1978), and, on this record, defen­
dants cannot show that their practices were the "consistent and 
resolute application of racially neutral policies." Oliver, 559 
F.2d at 182; Lansing, 559 F.2d at 1046-47.

(4) Grade structure and reorganization.
Aside from grade structures and reorganizations 

employed in connection with other overt acts of segregation (i.e., 
the continuing manipulation of the grade spans for the original 
four blacks-only schools to maintain a continuous, albeit racially 
separate, system of schooling for most blacks), the principal 
issue here is the reorganization attendant upon the 1971 creation 
of five middle schools. The district court's findings (A.77) 
are wholly deficient and clearly erroneous. See Appendix D,

22/—  See Appendix D, pp. 37a-41a, infra. Of 24 new schools constructed 
between 1950 and the time of trial, for example, 22 opened 90% or 
more black or 90% or more white; and to these segregated new 
schools, the Board assigned racially segregated faculties as if to 
clarify any doubt as to whether its segregative school construc­
tion was intended. See Appendix D, pp. 37a-38a, infra.

55-



pp. 41a-42a, infra. And the court made legal errors like those
discussed previously. The Ohio State Department of Education 
was demonstrably correct in concluding that Dayton school author­
ities "ha[a] only added one more action to a long list of 
state-imposed activities which are offensive to the Constitution 
and which are degrading to schoolchildren." S.Ct.A.454 (PX 12).

(5) Pupil transfers and transportation.
The district court seemed to recognize the uncon­

scionable nature of the Board's practice, from the 1930's until 
the Brown decision, of humiliating black children from the Shawen 
Acres Orphanage by assigning them across town to the blacks-only 
Garfield school and away from nearby white schools. A.77-78.
See Appendix C, p.lOa, n.6, infra. T h e  Board's variety of other 
segregative pupil-transfer practices over the years, however, 
are not acknowledged. A.79-81. See Appendix D, pp. 42a-47a, 
infra. These conclusory findings are clearly erroneous, induced 
as they are by the errors of law previously discussed. The only 
supportable conclusion is that the Board discriminated in those 
particulars as both an adjunct and a reflection of its racially 
dual systemwide practices.

(6) Rescission of the Board-adopted 
plan of pupil desegregation.

The basic facts of the Board's rescission in 
January, 1972, of the December, 1971, Board-adopted plan of deseg- 2

2 3/— / This is another good example of how the district court’s 
opinion isolates horrible facts from their proper context 
(here, the Board's other degrading pre-Brown policies), there­
by attempting to minimize their importance.

-56-



regation and resolutions admitting responsibility for the inten­
tional systemwide segregation of pupils are not in dispute. — -'

See Appendix D, pp. 48a-53a, infra. The district court determined 
that, under the Supreme Court's opinion (slip op. 7) adopting the 
rescission portion of this Court's opinion in Brinkman I (503 F.2d 
at 697), the Board's rescission action was not an independent 
constitutional violation because of the court's determination 
that the Board was under no duty to desegregate. A.101.
Since the latter determination is incorrect, as we have shown 
throughout this brief, the former conclusion is necessarily wrong.— ^ 
There are several other critical errors in the district court's 
treatment of these facts.

The district court assigned no probative weight at 
all to the findings and admissions of HEW, the Ohio State Depart­
ment of Education, the Board-appointed advisory committee of com-

24/—  However, the court's apparent conclusion that the Board, in 
finally standing up to its constitutional duty, was "manufac­
turing a constitutional violation] by political or legal man­
euvering" (A.101), is clearly erroneous. See Appendix D,
pp. 52a-53a, infra. The only difference between the Board's 
actions of December, 1971, and those of January, 1972, is that 
the former were aimed at desegregation while the latter were 
aimed at reinstating segregation. The rescission action was 
just as much (if not more) "manufactured" as the earlier deseg­
regation action. The district court apparently has made a purely 
social value judgment, which is wholly unwarranted on this 
record, in order to seek to repudiate the findings from its 
original violation opinion concerning the rescission.

25/—  The Supreme Court agreed (slip op. 7) with this Court that
"[i]f the Board was under such a duty [to desegregate], then 
the rescission becomes a part of the cumulative violation, and 
it is not necessary to ascertain whether the rescission ipso 
facto is an independent violation of the Constitution." Brink- 
man!, 503 F.2d at 697. -----

-57-



munity representatives, or the Board itself, that the Board had 
over the years engaged in intentional segregative conduct result­
ing in a segregated school system. See Appendix D, pp. 48a-51a, 
infra. As elsewhere, the court, by refusing to recognize plaintiffs' 
prima facie case, evaluated this evidence under an erroneous legal 
standard. In the context of this record, the findings of segrega­
tion by public agencies (rare enough in any circumstances) rein­
force, rather than detract from, the conclusion that the Board 
was guilty of intentional systemwide segregation.

More fundamentally, however, the court should have 
found that the rescission itself was an independent act of inten­
tional systemwide segregation. Plaintiffs' prima facie case
entitles them to a presumption that such was the case, which the

2 6/Board bears the burden of disproving.— • On this record that 2

2 6/— ■ In addition, further analysis shows that the rescission was 
in fact an act designed "to undo operative regulations effect­
ing the assignment of pupils [and] other aspects of the manage­
ment of school affairs," within the meaning of the Supreme 
Court's opinion. Slip op. 7; see also Lansing, 559 F.2d at 
1055 n.15. As shown in Appendix D, p. 52a, n.34, infra, the 
Board's rescission resolutions divested the Superintendent of 
Schools of his operative authority under Ohio law to determine 
pupil assignments. Thus, the Board's action, viewed in its 
particular historical context, violates the Equal Protection 
Clause.' Cf. Reitman v. Mulkey, 387 U.S. 369 (1967). Moreover, 
the Board's rescission action, by singling out pupil reassign­
ments for the purpose of desegregation and, with respect to 
such assignments, stripping the Superintendent of Schools of 
his otherwise unqualified state-law authority over intra­
district student assignments, was "an explicitly racial classi­
fication treating racial [pupil assignment] matters different­
ly than other . . . [pupil assignment] matters." Hunter v. 
Erickson, 393 U.S. 385, 389 (1969). These facts are more 
than sufficient to "trigger the rule . . . that racial classi­
fications are to be subjected to the strictest scrutiny and 
are justifiable only by the weightiest of considerations." 
Washington v. Davis, supra, 426 U.S. at 242.

-58-



burden is impossible. See Appendix D, pp.58a-52a, infra, and 
this Court's findings in Brinkman I, 503 F.2a at 696-97.

The rescission is therefore a part of the overall 
constitutional violation, and it is an independent act of system- 
wide segregation. The public-body findings underlying the deseg­
regation resolutions are, moreover, entitled to probative weight. 
The Board has dispelled none of these conclusions. The district 
court erred altogether in this part of its opinion.

c- Summary of the Constitutional Violation.
We have shown throughout this Argument III that the 

district court's ultimate factual conclusions are clearly errone­
ous to the extent they are inconsistent with the following: At 
the time of Brown, after 40 years of unrelenting discrimination 
against black pupils and teachers, the Board was operating a 
basically dual school system in which over three-fourths of all 
pupils and nearly all teachers were intentionally segregated on 
<_he basis of race. This dual structure was so pervasive as to 
automatically subject the Board to the Green/Swann duty to eradi­
cate segregation and its vestiges "root and branch." Assuming 
arguendo that these facts are insufficient to entitle plaintiffs, 
at the time of trial, to a system-wide remedy, the Board's post- 
Brown conduct is more than adequate; rather than dismantle the 
inherited dual system, the Board built upon and perfected that 
system, as revealed by the (1) continuation, until federal inter­
vention in 1969, of the Board's explicitly racial faculty-assign­
ment policies and practices, (2) manipulation of pupil attendance

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patterns through optional zones, attendance-boundary changes 
and city-wide high schools, (3) the virtually complete segregative 
pattern of school-construction, site-selection, school-closing 
and school-utilization practices designed to contain blacks in 
one part of the system separate from whites, (4) all of this 
supplemented by discriminatory grade-structure and grade- 
reorganization practices and discrimination respecting pupil 
transfers and transportation. Finally, the Board capped off 
this history by intentionally reinstating, for racially discrim­
inatory reasons, systemwide segregation through rescission of 
earlier Board action confessing liability and adopting desegre­
gation measures. In short, the Board did all that was necessary 
to maintain and perpetuate a de jure segregated school system.

The clearly erroneous conclusions of the district 
court to the contrary were caused in some instances by clearly 
erroneous subsidiary findings, with respect to which objective 
analysis of "the entire evidence" leaves "the definite and firm 
conviction that a mistake has been committed." United States v. 
United States Gypsum Co., supra, 333 U.S. at 395; see Argument 
IB, supra. But for the most part, as we have demonstrated, these 
mistaken conclusions were the inevitable product of the district 
court's mistakes of law described in Argument II, supra. The 
judgment of the district court is thus due to be reversed in its 
entirety. The nature of the constitutional violation shown above 
is systemwide, and the Board has not met its burden of showing

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otherwise.—  Consequently, the system-wide remedy now in effect 
is fully justified, for as the Supreme Court recognized in this 
case, citing Keyes, 413 U.S. at 213, a systemwide remedy is jus­
tified to cure a systemwide violation. Dayton Bd. of Educ. v.

' ___ U.S. ___ (1977) , slip op. 14. Out of an abundance
of caution, however, we turn to a separate analysis, giving the 
Board a second bite at the apple, with respect to the "incremental 
segregative effect" of the systemwide constitutional violation 
established in this Argument III.

IV. THE SYSTEMWIDE VIOLATION HAD A 
SYSTEMWIDE IMPACT_____________

Apparently as a justification for repudiating the 
result of its 1973 decision in this case (see A.103), the 
district court erroneously opined that "the concept of incremental 
segregative effect [referred to in the Supreme Court's opinion] is 
['new' to the law of school desegregation]." A.66. There is 
no basis for this interpretation. The "incremental segregative 
effect" phrase appears in the summary of the Supreme Court's 
decision concluding that the original liability opinions of the 
district court could be read only as establishing a very limited 
violation concerning high school districting, with respect to 
which the systemwide remedy was plainly excessive, thus requiring

27/—  The Board's burden was to overcome plaintiffs' prima facie 
case "by evidence supporting a finding that a lesser degree of 
segregated schooling . . . would not have resulted even if the 
Board had not acted as it did." Keyes, 413 U.S. at 211.

27/

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a remand for more precise findings about the nature of the 
violation. The Court then directed that, upon finding "any action 
in the conduct of the business of the school board which was in­
tended to, and did in fact, discriminate against minority pupils, 
teachers, or staff," slip op. 13, the courts (slip op. 13-14):

must determine how much incremental 
segregative effect these violations had 
on the racial distribution of the Dayton 
school population as presently constituted, 
when that distribution is compared to what 
it would have been in the absence of such 
constitutional violations. The remedy 
must be designed to redress that difference, 
and only if there has been a systemwide 
impact may there be a systemwide remedy. 
Keyes, supra, at 213.

There is nothing at all new about this. It is no 
more than a restatement of the principle, previously articulated 
in Keyes, Swann and Milliken I, 418 U.S. 717 (1974), that the 
remedy should be commensurate with the violation. As the Chief 
Justice described the same principle in Milliken II, handed down 
simultaneously with the Court's decision in this case, slip op. 
at 12 (footnotes omitted) (emphasis in original):

In the first place, like other equitable 
remedies, the nature of the desegregation 
remedy is to be determined by the nature and 
scope of the constitutional violation. Swann 
v. Charlotte-Mecklenburg Board of Education, 
supra, at 16. The remedy must therefore be 
related to "the condition alleged to offend 
the Constitution . . . "  Milliken I, supra, at 
738. Second, the decree must indeed be remed­
ial in nature, that is, it must be designed 
as nearly as possible "to restore the victims 
of discriminatory conduct to the position they 
would have occupied in the absence of such 
conduct." Id., at 746.

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not in the four rounds of district court proceedings, the three 
rounds here, nor the round in the Supreme Court —  contended that 
plaintiffs are not entitled to a remedial plan such as that now in 
place if plaintiffs are right about the nature of the violation.

But even if the record has to be parsed, as the 
district court did, the result here must be the same, so long as 
this Court cures the district court's error of law in "imposing 
a burden upon the plaintiffs to prove the effect of any purposeful 
segregative act, not merely on a theoretical basis, but on a 
factual basis." A.67; see also id. at 69, 104. As we demon­

strated in Argument XI, supra, this burden cannot lawfully be
imposed upon plaintiffs. It is the violator of the law who must 

28/ .prove that his misconduct did not cause the harm he intended. 
5ee' e-9-, Mt. Healthy City School Dist. Bd. of Educ. v. Doyle,
429 U.S. at 286-287; Arlington Heights, 429 U.S. at 270-71 n.21; 
Franks v. Bowman Transportation Co., 424 U.S. 747, 771-73 (1976); 
Keyes, 413 U.S. at 211 n.17; Zenith Radio Corp. v. Hazeltine 
Research, Inc., 395 U.S. 100, 123-25 (1969); Bigelow v. KKQ 
Radio Pictures, Inc., 327 U.S. 251 (1946); Story Parchment Paper 
Co^ v. Paterson Paper Co., 282 U.S. 555 (1931); Meadows v. Ford 
Motor Co., 510 F.2d 939 (6th Cir.), cert, denied sub nom., 525 U.S. 
998 (1975); Lewis v. Pennington, 400 F.2d 806, 817 (6th Cir. 1968). 
As these cases show, the law is not so blind as to require the

2 8/And prove by "clear and convincing" evidence, we should think 
(see note 15, supra), though the Board in the present case has 
not attempted such proof by any standard, and in any event could 
not on this record make even a "preponderance" showing.

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The Chief Justice elaborated in language comparable 
to the Dayton language quoted above and equally applicable here, 
slip op. 14 (emphasis in original):

The well-settled principle that the 
nature and scope of the remedy is to be 
determined by the violation means simply that 
federal court decrees must directly address 
and relate to the constitutional violation 
itself. Because of this inherent limitation 
upon federal judicial authority, federal court 
decrees exceed appropriate limits if they are 
aimed at eliminating a condition that does 
not violate the Constitution or does not flow 
from such a violation, see Pasadena City 
Board of Education v. Spangler, supra, or if 
they are imposed upon governmental units that 
were neither involved in nor affected by the 
constitutional violation, as in Milliken I, 
supra. Hills v. Gautreaux, 425 U.S. 284, 
292-96 (1976). But where, as here, a con­
stitutional violation has been found, the 
remedy does not "exceed" the violation if the 
remedy is tailored to cure the "condition 
that offends the Constitution." Milliken I, 
supra, at 738. (Emphasis supplied.)

In the instant case, as we have shown, the "condi­
tion that offends the Constitution" is intentional, systematic, 
across-the-board segregation. A systemwide remedy cannot "exceed" 
that violation. The district court’s approach —  isolating each 
factual situation from the record as a whole and summarily con­
cluding, in each instance, that "a preponderance of the evidence 
does not show any incremental segregative effects" —  is thus 
demonstrably untenable. For if there is a system-wide violation, 
as we showed in Argument III, whose existence the Board failed to 
carry the burden of refuting, then an across-the-board remedy 
follows as night does the day. Indeed, the Board has never —

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victim of unlawful conduct to prove with precision the detailed 
elements of his injury? rather, the burden is on the wrongdoer to 
demonstrate that he did not cause the injury he intended. This 
rule is especially relevant when, as with school segregation, both 
the wrong and the injury occurred over a long period of time and 
are exceedingly complex. For that reason, the Supreme Court has 
"never suggested that plaintiffs in a school desegregation case 
must bear the burden of proving the elements of de jure segregation 
as to each and every school or each and every student within the 
school system." Keyes, 413 U.S. at 200. Instead, here as in 
other areas of the law, "the burden becomes the school authorities' 
to show that the current segregation is in no way the result of 
those past segregative actions." Id. at 211 n.17.

In the instant case the Board has never tried to 
meet this burden. As we understand the Board's position (see note 
28, supra), if plaintiffs are correct in their claim of a system­
wide violation, then the plan of desegregation currently in place 
is as good a cure as any. The system-wide desegregation plan 
ordered previously by the district court and approved by this 
Court in Brinkman III, 539 F.2d 1084, accordingly should be 
reaffirmed.

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CONCLUSION

For the foregoing reasons, the judgment below 
should be reversed in its entirety and the case remanded to
enter judgment in accord with 
Court.

Dated: February 21, 1978.

ROBERT A. MURPHY 
WILLIAM E. CALDWELL 
Lawyers' Committee For 
Civil Rights Under Law 

520 Woodward Building 
733 Fifteenth Street, N.W. 
Washington, D.C. 20005
RICHARD AUSTIN 
Suite 1500
First National Bank Bldg. 
Dayton, Ohio 45402

Attorneys for

the opinion and mandate of this

Respectfully submitted,

PAUL R. DIMOND 
O'Brien, Moran and Dimond 
210 East Huron Street 
Ann Arbor, Michigan 48104
LOUIS R. LUCAS 
Ratner, Sugarmon, Lucas, 

Salky & Henderson 
525 Commerce Title Building 
Memphis, Tennessee 38103
NATHANIEL R. JONES 
NAACP General Counsel 
1790 Broadway 
New York, New York 10019
Lin-tif fs-Appellants

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing 
Brief for Appellants were served on counsel of record by placing 
same in the United States Mail, postage prepaid, on this 21st 
day of February, 1978.

la
Paul R. Dimond

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APPENDIX A

Procedural History Prior to Supreme Court's Remand

Black and white parents and their minor children 
attending the Dayton, Ohio, public schools, and the Dayton Branch 
of the National Association for the Advancement of Colored People 
[hereinafter, "plaintiffs"], filed their complaint April 17,
1972, in the United States District Court for the Southern District 
of Ohio. Defendants included the Dayton Board of Education and 
its individual members, and the Superintendent of the Dayton 
Public Schools [hereinafter "Dayton Board" or "Board"], and the 
Governor, Attorney General, State Board of Education and Super­
intendent of Public Instruction of Ohio.—^ Plaintiffs alleged 
that all of these defendants were responsible for operating a 
racially segregated public school system in violation of the 
Fourteenth Amendment and federal civil rights statutes, 42 U.S.C. 
§§1981, 1983-1988, and 2000d.

Trial limited by the district court to whether the 
Dayton public schools are unlawfully segregated by race pursuant 
to actions of the Dayton Board began November 13, 1972, and con­
cluded on December 1. On February 7, 1973, the district court 
issued its Findings of Fact and Memorandum Opinion of Law con­
cluding that various actions on the part of the Dayton Board

—^No issues concerning the State defendants are involved in this 
appeal, as no orders have been entered against them below.

-la-



defendants and their predecessors "are cumulatively in violation 
of the Equal Protection Clause." A.7. The court thereupon 
ordered the Dayton Board to submit a remedial plan of desegrega­
tion; the Dayton Board purported to comply through a submission 
of March 29, 1973. By its Supplemental Order on Remedy filed 
July 13, 1973 (A.14-16), the district court, while expressing 
disappointment at the Board's submission, approved the Board's 
limited proposal on a tentative basis. Both plaintiffs and 
defendants appealed.

On August 20, 1974, this Court filed its opinion 
in Brinkman I, 503 F.2d 684 (A.17-35). The Court affirmed the 
district court's finding that the Dayton school system was being 
operated in violation of the Constitution, but this Court also 
concluded that the Board's proposed cure for that violation was in­
adequate in light of the scope of the violation. Accordingly, the 
case was remanded to the district court to formulate a constitu­
tionally adequate desegregation plan. The Dayton Board did not 
seek Supreme Court review of this Court's judgment in Brinkman I.

On remand the district court, by order of January 7, 
1975 (A.36-37), directed the submission of new desegregation plans, 
upon which a hearing was held on February 17, 19 and 20, 1975.
On March 10, 1975, the district court entered an Order provision­
ally adopting another limited plan submitted by the Board.
A.37—45. The plaintiffs immediately appealed seeking summary 
reversal on the ground that the plan and the reasoning adopted bv 
the district court were plainly inadequate and in direct conflict

-2a-



with the mandate of this Court.
On June 24, 1975, the Court issued its opinion in 

Brinkman II, 518 F.2a 853 (A.45-49). The Court denied plaintiffs' 
motion for summary reversal because of the short time remaining 
before commencement of the 1975-76 school year; but the Court 
remanded the case with directions that the district court "adopt 
a systemwide plan for the 1976-77 school year that will conform to 
the previous mandate of this Court and to the decisions of the 
Supreme Court in Keyes and Swann." Id. at 857. The Court directed 
that its mandate issue forthwith. The Dayton Board sought review 
in the Supreme Court, and certiorari was denied on December 1, 1975. 
423 U.S. 1000. On remand, following evidentiary hearings and 
the appointment of a Master, the district court entered an order 
on March 23 (A.56-57) and a judgment on March 25 (A.58-59), 
modified by order of May 14, 1976 (A.59), essentially adopting 
the desegregation plan recommended by the Master but granting 
the Board the option to implement equally effective alternatives.

Defendants' appeal was heard on an expedited basis, 
and this Court issued its decision in Brinkman III on July 26,
1976, 539 F.2d 1084 (A.60-62). The Court rejected the Board's ob­
jections to the plan of desegregation approved by the district 
court. This Court and Circuit Justice Stewart denied the Board's 
applications for stay on August 16 and August 19, 1976, respectively. 
The plan thus became operative at the start of the 1976-77 school 
year, as required by Brinkman II and confirmed by Brinkman III.
The Supreme Court granted the Dayton Board's petition for a writ

3a-



of certiorari on January 17, 1977, 429 U.S, 1060, and filed its
opinion on June 27, 1977, ___ U.S. ___, remanding the case for
further consideration and directing that the systemwide plan 
remain in effect during the interim for the 1977-78 school year.

-4a-



APPENDIX B

The Dayton School District: General Geography and Demography

As reflected in the report (A.106-07) of the Master 
previously appointed by the district court, the city of Dayton 
has a population of 245,000 and is located in the east-central 
part of Montgomery County in the southwestern part of the State 
of Ohio, approximately 50 miles due north of Cincinnati. The 
Dayton school district is not coterminus with the city; some 
parts of the school district include portions of three surround­
ing townships and one village, while some portions of the city 
are included in the school district of three adjacent townships. 
The total population residing within the Dayton school district 
boundaries is 268,000; the school pupil population is 45,000, 
about 50% of whom are black. Prior to implementation of the 
desegregation plan now in effect, the vast majority of black 
and white pupils had separately attended schools either virtually 
all-white or all-black in their pupil racial composition. E.g,, 
A.25-26; S.Ct.A.311-315 (PX 2A-2E) , 502-506 (PX 100A-100E) , 588- 
589 (DXCU).

The Dayton District is bisected on a north/south 
line by the Great Miami River. Historically, the black popula­
tion has been concentrated in the south-central and southwest 
parts of the city, primarily on the west side of the Miami River 
and south of the east-west Wolf Creek. See S.Ct.A.577-79 (1940, 
1950 and 1960 census tract maps). The black population continues

-5a-



to be concentrated in the southwest quadrant, but there is now also 
a substantial black population in the northwest quadrant across 
Wolf Creek. Extreme northwest Dayton and most of the city east 
of the Miami River are and have been heavily white in residential 
racial composition. See 5.Ct.A.580 (1970 census tract map).

Geographically and topographically there are no 
major obstacles to complete desegregation of the Dayton school 
district. A.61. The Master determined that where pupil trans­
portation is necessary, the maximum travel time would be about 
twenty minutes. A.108. As found by the Board's experts, due to 
the compact nature of the system, "the relative closeness of the 
Dayton Schools makes long-haul transportation[,3 an issue in many 
cities[,] moot here." R.III. 111.

-6a-



APPENDIX C

The Pre-Brown Dual System

In 1887 the state of Ohio repealed its school 
segregation law and attempted to legislate the abolition of 
separate schools for white and black children. 85 Ohio Laws 34. 
That statute was sustained the following year by the Supreme 
Court of Ohio. Board of Education v. State, 45 Ohio St. 555,
15 N.E. 373 (1888). The laudable goals of that legislation were 
not attained in Dayton until implementation of the desegregation 
plan now in effect at the start of the 1976-77 school year.

The facts of racial segregation in the Dayton public
schools, as revealed by the record before the Court, begin in 

2/1912.—' In that year school authorities assigned Louise Troy, a 
black teacher, to a class of all-black pupils just inside the rear 
door of the Garfield school; all other classes in this brick 
building were occupied by white pupils and white teachers. About 
five years later, four black teachers and all of the black pupils 
at Garfield were assigned to a four-room frame house located in 
the back of the brick Garfield school building with its all-white 
classes. Shortly thereafter, a two-room portable was added to 
the black "annex” making six black classrooms and six black

2/- Many of the facts set forth in this Appendix C were admitted 
by all Dayton Board defendants in their responses to plaintiffs' 
pre-trial Requests for Admissions, served on October 13, 1972.
The Superintendent and three Board members filed responses 
separate from those of the Board and its four "majority" members. 
See A.109-38. These facts were also the subject of extensive 
and largely uncontroverted evidence at trial.

-7a-



teachers located in the shadow of the white Garfield school. A 
four-room "permanent" structure was later substituted (about 1921 
or 1922) , and eight black teachers were thus assigned to the eight 
all-black classrooms in the Garfield annex. A.320-25.—

About 1925 school authorities learned that two 
black children, Robert Reese and his sister, had been attending 
the Central school under a false address, even though they lived 
near the Garfield school. They had accomplished this subterfuge 
by walking across a bridge over the Miami River. A.281.—^ The 3

3 /— In 1917 the black classes in the black annex at Garfield con­
tained about 50 black children per room. A.322. Thereafter, 
Mrs. Ella Lowrey, a black teacher for several decades in the 
Dayton system, taught a class of 42 black children when white 
teachers inside the brick building had classes of only 20 white 
pupils. A.325-26.
Mrs. Lowrey's service began in 1916 and continued through 1963, 
with several years' interruption at various times. In her 
words, "doing 40 years service in all in Dayton, ... I never 
taught a white child in all that time. I was always in black 
schools, black children, with black teachers." A.333. (At one 
time during this early history prior to 1931, one black teacher, 
Maude Walker, taught an ungraded class of black boys at the 
Weaver school. All other black teachers in the system were 
assigned to the black annex at Garfield. A.259.)

4/- During this time, there apparently were some other black chil­
dren also in "mixed" schools. For example, Mrs. Phyllis Greer 
attended "mixed" classes at Roosevelt high school for three 
years prior to 1933. A.252-53. But even when they were allowed 
to attend so-called "mixed" schools, black children were sub­
jected to humiliating discriminatory experiences within school. 
At Roosevelt, for example, black children were not allowed to
go into the swimming pool and blacks had separate showers while 
Mrs. Greer was there (A.253); while Robert Reese was at 
Roosevelt, there were racially separate locker rooms and blacks 
were allowed to use the swimming pool, but not on the same day 
whites used it. A.284. At Steele High School, black children 
were not allowed to use the pool at all during this period.
A. 8 86-87. [footnote cont'd on next page]

-8a-



Reese children were ordered by school authorities to return to 
the Garfield school, but their father refused to send them to 
the black Garfield annex. Instead, he filed a lawsuit in state 
court seeking a writ of mandamus to compel Dayton school authori­
ties to admit children of the Negro race to public schools on 
equal terms with white children. A.280-83. In a decision entered 
of record on December 24, 1925, the Court of Appeals of Ohio 
denied a demurrer to the mandamus petition. This decision was 
affirmed by the Ohio Supreme Court and Dayton school authorities 
were specifically reminded that state law prohibited distinctions 
in public schooling on the basis of race. Board of Education of 
School District of City of Dayton v. State ex rel. Reese, 114 
Ohio St. 188, 151 N.E. 39 (1926).

Following this state court decision Robert Reese 
and a few of his black classmates were allowed to attend school 
in the brick Garfield building, but the black annex and the white 
brick building were otherwise maintained. Black children were 
allowed to attend classes in the brick building only if they *

4/(cont'd)
Even in the "mixed” classrooms black children could not escape 
the official determination that they were inferior beings 
because of the color of their skin. Mrs. Greer vividly remem­
bers, for example, "when I went to an eighth grade social studies 
class I was told by a teacher, whose name I still remember, ... 
that even though I was a good student I was not to sit in front 
of the class because most of the colored kids sat in the back."
A.254. And she remembers with equal clarity that, while in the 
second grade at Weaver, she "tried out for a Christmas play and 
my teacher wanted me to take the part of an angel and the 
teacher who was in charge of the play indicated that I could 
not be an angel ...because there were no colored angels."
A.251.

-9a-



asserted themselves and specifically so requested. A.327-28. 
Otherwise, they "were assigned to the black teachers in the 
black annex and the black classes." A. 328 .—

The black pupil population continued to grow at 
Garfield, and another black teacher was hired and assigned with 
an all-black class placed at the rear door of the brick building. 
A.328-29. In 1932 or 1933, Mrs. Lowrey (see note 4, pp. 8a-9a, 
supra), was also placed in the brick building, again with an all­
black class "in a little cubbyhole upstairs," making ten black 
teachers with ten black classes at Garfield. A.329-31. Finally, 
around 1935-36, after most of the white children had transferred 
out of Garfield, school authorities transferred all the remaining 
white teachers and pupils in the brick building to other schools 
and assigned an all-black faculty and student body to Garfield.
A.260-61, 329-31; S.Ct.A.524 (PX 150 I); PX 155 (faculty direc­
tories) . —  ̂5

5 /- During the pendency of the Reese case, the eight black teachers 
assigned to the Garfield annex were employed on a day-to-day 
basis because school authorities did not know whether the black 
teachers were going to be in the Dayton system after the lawsuit. 
Black teachers would not be needed if the courts required the 
elimination of all-black classes, since the Board deemed black 
teachers unfit to teach white children under any circumstances.
A. 326-27.

— Throughout this period and until 1954, black children from a 
mixed orphanage, Shawen Acres, were assigned across town to the 
black classes in the black Garfield school, while the white 
orphan children were assigned to nearby white classes and white 
schools. A.215-16, 250, 1034, 1036-37. This practice was ter­
minated following the Brown decision in 1954 at a time when the 
black community in Dayton was putting pressure on the school 
administration to stop mistreating black children. S.Ct.A.483 
(PX 28) .

10a-



But the black pupil population was growing during 
these years, and even the conversion of Garfield into a blacks- 
only school was not sufficient to accommodate the growth. So, 
with the state court decision in the Reese case now eight years 
old, the Dayton Board converted the Willard school into a black 
school. The conversion process was as degrading and stigmatizing 
as had been the creation and maintenance of the Garfield annex 
and the ultimate conversion of the brick Garfield into a black 
school. In the 1934-35 school year, six black teachers (who were 
only allowed to teach black pupils) and ten white teachers had 
been assigned to the Willard school. In September of 1935, all 
white teachers and pupils were transferred to other schools, and 
Willard became another school for black teachers and black pupils 
only. A.260-61; S.Ct.A.524 (PX 150 I); PX 155 (faculty directories).

At about this same time, the new Dunbar school, 
with grades 7-9, opened with an all-black staff and an all-black 
student body. S.Ct.A.524 (PX 150 I).-/ The Board resolution open­
ing Dunbar stated that grades 7 and 8 were to be discontinued at 
Willard and Garfield—^ and "that attendance at the ... Dunbar

7/— Mr. Lloyd Lewis, who was present at its inauguration, testified 
that the Dunbar school "was purposely put there to be all black 
the same as the one in Indianapolis [the Crispus Attucks school, 
see United States v. Board of School Comm'rs, 332 F. Supp. 655,
665 (S.D. Ind. 1971)] that I had left." A.546, 1048-50, 1083-86. 
Dunbar was _also excluded from competition in the city athletic 
league until the late 1940's, thereby requiring Dunbar teams to 
travel long distances to compete with other black schools, even 
those located outside the state. A.254, 297-98, 316.

8 /— These two black elementary schools served grades 7 and 8, whereas 
the system prior to 1940 was otherwise generally organized on a 
K-6, 7-9, 10-12 grade-structure basis. A.811.

-11a-



School be optional for all junior high school students of the
7th, 8th, and 9th grade levels in the city." A.429; S.Ct.A.539 
(PX 161A). Of course, this meant only ail black junior high 
students, since Dunbar had an all-black staff who were not permit­
ted by Board policy to teach white children. A.260, 429; PX 155 
(faculty directories).

Within a very short time, grades 10, 11 and 12 
were added to the black Dunbar school. Then in 1942, just two 
years after the Dayton school authorities had reorganized to 
a K-8, 9-12 grade structure, the Board again assigned the seventh 
grades from the all-black Willard and Garfield schools to the all­
black Dunbar school. A.429; S.Ct.A.520 (PX 161B). Black children 
from both the far northwest and northeast sections of the school 
district traveled across town past many all-white schools to the 
Dunbar school. A.268, 478-79, 632-33. Many white children through­
out the west side of Dayton were assigned to Roosevelt high school 
past or away from the closer but all-black Dunbar high school. 
Although some black children were allowed to attend Roosevelt, those

9/— Prior to 1940, no high schools had attendance boundaries. A.824. 
The black Dunbar school was located in close proximity to the 
Roosevelt high school which, although it always had space, appar­
ently had too many black children. Along with Steele and Stivers, 
these high schools were located roughly in the center of the 
city and served high school students throughout the city. (In 
addition, the Parker school had been a city-wide single-grade 
school which served ninth graders. A.855-56. In 1940 attendance 
boundaries were drawn for the high schools with the exception of 
Dunbar and a technical school (whose name varied), both of which 
long thereafter remained as city-wide schools. See Appendix D 
at note 20, infra, and accompanying text.

[footnote cont'd on next page]

-12a-



who became "behavior problems" were transferred to Dunbar. A. 255- 
56. And other black children from various elementary schools were 
either assigned, channeled, or encouraged to attend the black 
Dunbar high school. A.547-49; R.I. 573.— ^

Even these segregative devices were not sufficient 
to contain the growing black pupil population. So between 1943 
and 1945, the Board, by way of the same gross method utilized to 
convert the Willard school into a black school, transformed the 
Wogaman school into a school officially designated unfit for whites. 
White pupils residing in the Wogaman attendance zone were trans­
ferred by bus to other schools, to which all-white staffs were

9/(cont'd)
Dunbar continued until 1962 as a city-wide all-black high 
school. In that year the Dunbar building was converted into 
an elementary school (renamed McFarlane) with attendance bound­
aries drawn to take in most of the students previously attending 
the all-black Willard and Garfield schools, which were simul­
taneously closed. McFarlane opened with an all-black faculty 
and all-black pupil population. At the same time, a newly- 
constructed Dunbar high school opened with both assigned faculty 
and students over 90% black. S.Ct.A.315 (PX 2E), 316 (PX4), 508 
(PX 130C); A.139-42 (PX 3), 574-75.

— ^ The most effective means of forcing black children to attend 
the blacks-only Dunbar, of course, was the psychological one of 
branding them unsuited for association with white children.
See note 5, supra. As Mr. Reese testified, he "chose" Dunbar 
over Roosevelt after suffering the humiliation of being assigned 
to separate locker rooms, separate showers, and separate swim­
ming pools at Roosevelt: "I wanted to be free. I felt more at 
home at Dunbar than I did at Roosevelt ... You couldn't segre­
gate me at Dunbar." A.284. Similarily, Mrs. Greer testified:
"I went to Dunbar because I felt that if there was going to be 
—  if we were going to be separated by anything, we might as 
well be separated by an entire building as to be separated by 
practices." A.253.

-13a-



assigned. By September 1945 the Board assigned a black principal 
and an all-black faculty with an all-black student population to 
the Wogaman school. A.255,298; S.Ct.A.524 (PX 150 I); PX 155 
(faculty directories).

Still other official devices were used to keep blacks 
segregated in the public schools. One such device, resorted to 
regularly during the 1940!s and early 1950's, was to cooperate 
with and supplement the discriminatory activities of Dayton public 
housing authorities. Throughout this period, racially-designated 
public housing projects were constructed and expanded in Dayton.
A.194-95, 198-203; S.Ct.A.510 (PX 143 B). In 1942, the Board 
transferred the black students residing in the black DeSoto Bass 
public housing project to the Wogaman school (S.Ct.A.540 (PX 161 B)), 
and a later overflow to the all-black Willard school, rather than 
other schools that were equally close (A.257-58), while transferring 
white students from the white Parkside public housing project to 
the McGuffey and Webster schools and the eighth grades from those 
schools to the virtually all-white Kiser school. S.Ct.A.540.
Then in the late 1940's and early 1950's, the Board leased space 
in white and black public housing projects for classroom purposes, 
and assigned students and teachers on a uniracial basis to the 
leased space so as to mirror the racial composition of the public 
housing projects. A.202-03; S.Ct.A.513-23 (PX 143 J).

By the 1951-52 school year (the last year prior to 
1964 for which enrollment data by race is available), the Dayton 
Board was operating wThat any informed person would immediately rec—

-14a-



ognize as a dual school system. During that year there were 
35,000 pupils enrolled in the Dayton district, 19% of whom were 
black. There were four all-black schools, officially designated 
as such: Willard, Wogaman, Garfield and Dunbar. These schools
had all-black faculties and (with one exception, an assignment 
made that school year) no black teachers taught in any other schools. 
A.139 (PX 3). In addition, there were 22 white schools with all- 
white faculties and all-white student bodies. And there was an 
additional set of 23 so-called "mixed" schools, 7 of which had less 
than 10 black pupils and only 11 of which had black pupil popula­
tions greater than 10% (ranging from 16% to 68%). S.Ct.A.506 (PX
100E). These latter schools were generally located in the area sur­
rounding the location of the four designated all-black schools.
These few schools with substantial racial mix, however, were marked 
by patterns of racially segregative and discriminatory practices 
within the schools, and, with the one exception noted above, none 
had any black teachers. Eighty-three percent of all white pupils 
attended schools that were 90% or more white in their pupil racial 
composition. Of the 6,628 black pupils in the system, 3,602 (or 
54%) attended the four all-black schools with all-black staffs; 
and another 1,227 (or 19%) of the system's black pupils were 
assigned to the adjacent schools which were about to be converted 
into "black" schools (see note 11, infra, and accompanying text). 
Thus, 73% of all black students attended schools already or soon 
to be designated "black." S.Ct.A.312 (PX 2B), 506 (PX 100E).

[DISTRICT COURT'S OPINION (A.67-69, 71-72, 73,

-15a-



77-78, 87-89). The subsidiary facts set forth above are not in 
dispute. Many of them are the subject of findings below, and while 
others (e.g,, the Reese litigation, the conversion of Garfield, 
Willard and Wogaman into blacks-only schools, and the specifics 
of the Board’s entanglement with public housing discrimination) 
were ignored by the district court, the district court's opinion 
does not conflict with these undisputed facts. Thus, the district 
court finds that "public housing was strictly segregated according 
to race" (A.67); that the Board segregated many black children 
and discriminated against the few others who attended predominantly 
white schools in accordance with "an inexcusable history of mis­
treatment of black students" (A.68-69); that "until 1951 the 
Board's policy of hiring and assigning faculty was purposefully 
segregative" (A.73); that the discriminatory transfer of black 
children from Shawen Acres Orphanage to the blacks-only Garfield 
School was "arguably.... a purposeful segregative act" (A.78);jV 
and that "the first Dunbar High School was intended to be and was 
in fact a black high school." A.88. To the extent that the 
court’s failures to mention some of the other uncontradicted 
facts set forth above might be read as adverse findings on these 
points, then such findings are clearly erroneous. But the district 
court's principal error is its refusal to view the facts set forth 
above in the aggregate (rather than pepper them throughout the 
opinion as though they were each unrelated to the other) and con­
clude that the Board was operating a basically dual school system. 
That conclusion is compelled by these facts; the court's refusal 
to draw that conclusion was clearly erroneous.* **/]

In December 1952 the Dayton Board confronted its 
last pre-Brown opportunity to correct the officially-imposed school 
segregation then extant. Instead, the Board acted in a manner 
that literally cemented in the dual system and promised racially

*  /— To the extent that the phrasing of this finding might be read 
to imply that these facts "arguably" do not show purposeful 
segregation, the implication is plainly erroneous. The only 
facts and conclusions permissible on the record are those set 
forth in note 6, p. 10a, supra.

•k -k /— The Court's conclusions about the post-Brown history of
Dunbar high school (A.87-89) which are inconsistent with those 
set forth in note 9, pp. 12a-13a, supra, are dealt with at 
Appendix D, pp. 38a-39a, infra.

-16a-



discriminatory public schooling for generations to come. What 
the Board did is referred to in the record as the West-Side 
reorganization, and it involved a series of interlocking segrega­
tive maneuvers.

At this time, the Board was under pressure, as its 
records reflect, from "the resistance of some parents to sending 
their children to school in their district because it is an all 
negro [sic] school," S.Ct.A.499 (PX 75). In response, the Board 
constructed a new all-black school (Miami Chapel) located near the 
all-black Wogaman school and adjacent to the black DeSoto Bass 
public housing project; Miami Chapel opened in 1953 with an all­
black student body and an 85% black faculty. S.Ct.A.316 (PX 4).
The Board altered attendance boundaries so that some of the children 
in the four blacks-only schools were reassigned to the four sur­
rounding schools with the next highest black pupil populations; 
and, through either attendance boundary alterations or the crea­
tion of optional zones, it reassigned white students from these
mixed schools to the next ring of whiter schools. A.589-91, 509-24,

11/732-34; PX 123.—  And the Board began to assign black teachers to 
these formally mixed schools, thereby confirming their identifica­
tion as schools for blacks rather than whites. A.613-14, 139-42 
(PX 3) .

— ^The boundaries of the black Garfield and Wogaman schools were 
retracted, thereby assigning substantial numbers of black chil­
dren to the immediately adjacent ring of "mixed" schools with 
the highest percentage of black pupils: Jackson (already 36%
black in the 1951-52 school year), Weaver (68% black), Edison 
(43% black), and Irving (47% black). S.Ct.A.506 (PX 100E).

[footnote cont'd on next page]
-17a-



11/ (cont'd)
Jackson and Edison were re-zoned to include more black students, 
and their outer boundaries were effectively contracted through 
the creation of "optional zones" (Jackson/Westwood and Edison/ 
Jefferson) so that white residential areas became effectively 
detached from Jackson and Edison and, for all practical purposes, 
attached to the next adjacent ring of "whiter" schools,
Thus, the Board brought blacks in one end and allowed whites to 
escape out the other in these "transition" schools. The Board 
also created optional zones (Willard/Irving, Willard/Whittier 
and Wogaman/Highview, as well as an option between the new 
Miami Chapel and Whittier) in white residential areas contained 
within the boundaries of the original four schools for blacks 
only, so that whites could continue to transfer out of these 
all-black schools. A.589-91, 509-24. Prior to 1952 whites 
had been freely allowed to transfer to "whiter" schools, but such 
transfers were abolished in 1952. A.618; S.Ct.A.482 (PX 28). 
Optional zones were thus substituted for the prior segregative 
transfer practice. (The optional-zone technique is discussed 
in greater detail in Appendix D at pages 30a-34a, infra.)
During this period the Board also created another optional 
attendance zone affecting Jackson; this zone was instituted in 
an area of the Jackson zone containing the Veteran’s Adminis­
tration Hospital, and allowed whites to attend Residence Park, 
which at that time was all-white. A.585-87; S.Ct.A.506 (PX 100E). 
This option is discussed further in Appendix D at note 22, infra. 
Additionally, the Board during this period created the optional 
zone between Roosevelt (31.5% black) and Colonel White (100% white), 
A.592-93; S.Ct.A.506 (PX 100E). The immediate and long-range 
racial significance of this option is discussed in greater detail 
in Appendix D, pp. 32a-33a, infra.

-18a-



[DISTRICT COURT’S OPINION (A.75-76). Incredibly, 
the district court concluded that the West-Side reorganization 
"was an experiment in integration" and, inconsistently, that 
"[i]ts purpose was to enable black students to go to an integrated 
rather than an all-black school if they chose to do so." A.75. 
These conclusions are clearly erroneous, arrived at only through 
the most selective and argumentative reading of the record imag­
inable. For example, the district court cites the testimony 
from the latest hearing of former Superintendent Wayne Carle in 
support of the proposition that the West-Side reorganization was 
an "experiment in integration." While Dr. Carle’s testimony is 
not absolutely free of ambiguity, 'taken as a whole it is impossible 
to characterize his views as being that the events of 1952 were 
integration-oriented. But the district court does not take the 
testimony as a whole; rather, the court relies on five pages of 
the transcript (A.938-42) which the court obviously selected as 
being most supportive of its desired version of events. The 
court ignores altogether the very next two pages (A.943-44) in 
which Dr. Carle emphasizes that "you can't operate part of the 
system on a segregated basis without signalling that the rest of 
the system is on a segregated basis" (A.933); "The action that 
was taken there was that nothing was done to eliminate the segre­
gation that already existed in the three schools whose boundaries 
were changed" (A.944); and that if the Board had truly adopted 
a policy of real desegregation and "that were communicated to 
the community, I suspect it might have a much different effect 
than minor boundary changes involving schools that remain all 
black" (A.944). These points are unassailable, but by ignoring 
them the district court had just begun to err. These basic errors 
were compounded three-fold: first, by ignoring further testimony
from Dr. Carle pointing out that a central part of the West-Side 
reorganization was its use of supportive segregative devices such 
as assigning black teachers to the schools adjacent to the four 
blacks-only schools (A.1011-12), accompanied by the creation of 
optional attendance zones (A,1014-15); second, by concluding that 
"[t]he events of 25 years ago, I suspect, would not affect any 
student in school at the moment and might not even have affected 
his parents" (A.1013) (statement of the court) jV; and third, by 
refusing to allow Dr. Carle to answer the question, "In light of 
those two factors [assignment of black teachers and creation of 
optional zones], Dr. Carle, do you have a view as to the intention 
of the Board insofar as whether or not there was an intention to 
establish these [schools adjacent to the blacks-only schools] as

— The court's quoted view seems to be that the only harm in 
segregation occurs at the time of initial imposition, and 
that subsequent generations have nothing to complaine about 
— ■ a view that is foreclosed by Brown.

-19a-



the next black schools in Dayton" (A.1016). The court refused to 
allow this testimony (A.1016-17). Thus, the court relies on the 
testimony of a witness to support a conclusion drawn by the court 
but with respect to which the court would not allow the witness 
to testify) The court made other comparable errors in drawing its 
conclusions about the West-Side reorganization.**/ Its treatment 
of this issue, insofar as inconsistent with the facts and con­
clusions we have set out above, should be disregarded as clearly 
erroneous.]

*  *  /—  For further example, the court cited Dr. Gordon Foster's 
testimony for the proposition that the West-Side reorganiza­
tion was intended as an "experiment in integration... to enable 
black students to go to an integrated rather than an all-black 
school if they chose to do so." A.74, citing A.625. This is 
not an accurate representation of Dr. Foster's testimony, but 
rather a highly selective reading which distorts both the sum 
and the substance of the record. For the twenty-five previous 
pages of transcript, Dr. Foster had detailed, as summarized 
above (see note 11 and p. 17a, supra), the large numbers and 
variety of segregative devices utilized by the Dayton Board in 
the West—Side reorganisation. At A.624 Dr. Foster concluded 
this testimony as follows:

the effect was clearly one of locking in 
and freezing this configuration including 
these schools into an all-black situation.

There can be no mistake as to the objective meaning of this twenty 
five pages of testimony, and of Dr. Foster’s conclusion, or the 
objective fact that the Board's actions in this reorganization 
were intentionally segregative, whatever the Board's stated intent
Thereafter, at A.624-29, the court engaged Dr. Foster in a 
colloquy ranging from "tipping points" to the "alternatives" 
to the West-Side reorganization available to the Board. At 
several points in this colloquy, it is clear that Judge Rubin 
is^not satisfied, for example, when Dr. Foster debunks "tipping 
points" (A.626-29), or suggests limited actions which the Board 
might have taken to show that its actual purpose was at least 
racial nondiscrimination, rather than segregation, in a difficult 
situation of a school district with a prior history of segrega­
tion and a community undergoing racial change. A.626. But 
what apparently peeved the district judge the most was Dr. Foster' 
evaluation of the ineffectiveness of even such limited alterna­
tives (which the Board, of course, eschewed in its segregative 
reorganization) in the context of a dual school system (A.625, 
628-29):

[footnote cont'd on next page]

-20a-



The staff aspect of state-imposed segregation --
i.e., assignments of Board employees on a racial basis "pursuant 
to an explicit segregation policy of the Board," Brinkman I, 503 
F.2d at 697 —  also underwent a slight change in policy. Prior 
to this time, as previously noted, the Board would not allow black 
teachers to teach white children under any circumstances; black 
teachers were assigned only to all-black schools, and white teachers 
were assigned only to white and "mixed" schools. Accordingly, in 
the 1951-52 school year, the Board substituted a new, but equally 
demeaning, faculty assignment policy (S.Ct.A.481 (PX 21)):

(cont'd)

The problem, as I [perhaps the most experienced 
and respected professional with respect to 
accomplishing actual school desegregation in 
the country] see it in this type of situation, 
is essentially one of diddling around piecemeal 
with desegregation instead of attacking the prob­
lem wholesale and making clear that you are de­
segregating the entire system.

* * * * * * * *

I think the only secure solution and the only 
safe solution is to dissestablish a dual struc­
ture in the entire system so that whites [who 
may wish to] flee . . . meet the same situation
wherever they go.

Viewing Dr. Foster's testimony as a whole, therefore, the dis­
trict court engaged in much more than just a clearly erroneous 
selective reading of the record in suggesting that this expert 
believed the Board's purpose was integrative rather than segre­
gative; it is also a gross misrepresentation, both of Dr. 
Foster's opinion and the uncontroverted, objective evidence.

-21a-



The school administration will make every 
effort to introduce some white teachers in 
schools in negro [sic] areas that are now 
staffed by negroes [sic], but it will not 
attempt to force white teachers, against 
their will, into these positions.
The administration will continue to introduce 
negro [sic] teachers, gradually, into schools 
having mixed or white populations when there 
is evidence that such communities are ready 
to accept negro [sic] teachers.

This faculty policy, incredibly, was contained in a statement
of the Superintendent disavowing the existence of segregated

12 /schools m  the Dayton district.— 7
[DISTRICT COURT'S OPINION (A.71-73). The district 

court correctly concluded that "until 1951 the Board's policy of 
hiring and assigning faculty was purposefully segregative."
A.73. But the court attempts to ameliorate the harsh racism of 
the 1951-52 policy change by characterizing it as a "policy of 
dynamic gradualism" (id.) which "was substantially implemented 
during the 1950's and 1950's." Id. at 72. The policy itself, 
quoted above, speaks louder and clearer than the district 
court's ameliorative efforts, which are clearly erroneous. The 
court also erred in not recognizing the Board's faculty policies 
as the hallmark of the Dayton-style dual system. (The court's 
continuing errors, with respect to post-Brown faculty-assignment 
practices, are treated in Appendix D, pp. 19a-23a, infra.)]

12/—  in 1954 the Superintendent made a further statement, which 
included the following: "All elementary schools have definite
boundaries and children are obliged to attend the school which 
serves the area in which they reside. The policy of transfers 
from one school to another was abolished two years ago when the 
boundaries of several westside elementary schools were shrunken, 
permitting a larger number of Negro children to attend mixed 
schools." S.Ct.A.482 (PX 28). As we have seen (see note 11, 
supra), however, the elimination of free transfers was accom­
plished by a new device, optional zones, which served the same 
purpose of allowing whites to avoid attendance at black or sub­
stantially black schools.
The Supreintendent's 1954 statement also contains the following 
(S.Ct.A.483):

[footnote cont'd on next page]

-22a-



At the time of the Supreme Court's May 17, 1954 
decision in Brown v. Board of Education, therefore, Dayton school 
officials were operating a racially dual system of public educa­
tion. This segregation had.not been imposed by state law; indeed, 
it was operated in open defiance of state law.

[DISTRICT COURT'S OPINION; The district court did 
not specifically speak to this concluding point, but obviously 
would have reached the clearly erroneous conclusion that the Board 
was not operating a basically dual system. The facts and their 
meaning are as we have described-them heretofore.]

12/ (cont'd)

About two years ago we announced a policy of attempt­
ing to introduce white teachers in our schools having 
negro [sic] population. We have not been too success­
ful in this regard and at the present time have only 
8 full or part-time teachers in these situations.
There is a reluctance on the part of white teachers 
to accept assignments in westside schools and up to 
the present time we have not attempted to use any 
pressure to force teachers to accept such assignments. 
The problem of introducing white teachers in negro [sic] 
schools is more difficult than the problem of intro­
ducing negro [sic] teachers into white situations.
There are several all-white schools which in the near 
future will be ready to receive a negro [sic] teacher.

As we shall also show (see Appendix D, pp. 24a-29a, infra), 
this race-based assignment of faculty continued for almost two 
more decades as a primary device for earmarking schools as 
intended for blacks or whites.

-23a-



APPENDIX D

Continuation of the Dual System After Brown

1• Faculty and Staff Assignments
The Board continued to make faculty and staff assign­

ments in accordance with the racially discriminatory policy an­
nounced in 1951 (see pp. 21a-22a, supra) at least through the 1970- 
71 school year. A.901-03, 909-12, 1006-09, 1010-11, 1060-61, 1099- 
1112. For example, in the 1968-69 school year, the Board assigned 
633 (85%) of the black teachers in the Dayton system to schools 
90% or more black in their pupil racial compositions, but only 
172 (9%) of the white teachers to such schools. The Board 
assigned only 72 (9%) of the black teachers to schools which were 
90% or more white, but 1,299.(70%) of the white teachers were 
assigned to such schools. S.Ct.A.320 (PX 5D).

Prior to the 1968-69 school year, the Board main­
tained teacher applications on a racially separate basis. Once 
teachers were hired, their records were kept on various racial 
bases which were used to segregate teachers and schools. Substi­
tute teacher files were color-coded by race and substitutes assigned 
on a racially dual basis. And the Board restricted the hiring, 
transfer, and promotion of black teachers primarily to black or 
"changing" schools while white assignments or transfers to these 
schools were discouraged. A.223-30, 261-66, 139-42 (PX 3), 337-53, 
286-92, 362-66, 368-76, 377-84. Principals, assistant principals, 
counselors, coaches and other clerical and classified personnel

-24a-



were assigned on an even more strictly segregated basis. A. 540-
41? S.Ct.A.486 (PX 42). Thus, from at least 1912 through 1968
the assignment of personnel in the Dayton school system fit
perfectly the classical mold of state-imposed segregation: such
assignments mirrored the racial composition of student bodies at

13 /new schools and additions,—  and continued to correspond to the
racial identity of those schools already all-black or in tran-
. . 14/sition.—  White teachers similarly were assigned in dispro-

1 3 /—  The Board assigned faculty members to these new schools and 
additions so as to reflect the pupil racial composition at 
opening, thereby tailoring them as "black" or "white" in 
accordance with the Board's policy. A.644, 800; S.Ct.A.316- 
17 (PX 4) .

14/—  In the 1963-64 school year, for example, the Board assigned 
40 of 43 new full-time black teachers to schools more than 80% 
black in their racial compositions. S.Ct.A.319 (PX 5A). Al­
though somewhat less obvious, this practice was equally effective 
in identifying the formerly mixed schools as changing or black by 
assigning more than token black faculty only to these schools 
and thereafter assigning increasing numbers of black teachers 
only to these schools. A.139-42 (PX 3), 234-46, 407. As articu­
lated by Mrs. Greer, a long-time black student, teacher and 
administrator in the system (see note 4, supra, pp. 8a-9a), the 
assignment of staff to go along with the neighborhood change was 
the kind of thing that gave the impression of the schools being 
designed to be black, because black staff increased as black 
student bodies increased." A.271. As Board member Leo Lucas 
put it, race-oriented faculty-assignment practices "manifest
the intent of the Board" and have a "spill-over" effect on all 
aspects of school operation. A.1061.

-25a-



It wasportionate numbers to the predominantly white schools.— ^ 
therefore possible at any time during this period to identify a 
"black" school or a "white" school anywhere in the Dayton system 
without reference to the racial composition of pupils.

In November of 1968 the United States Department 
of Health, Education and Welfare [hereinafter, "HEW"] began an 
investigation of the Dayton public schools to determine whether 
official policies and practices with respect to race were in 
compliance with Title VI of the Civil Rights Act of 1964. By 
letter of March 17, 1969, the acting Director for the Office of 
Civil Rights of HEW notified the Dayton Superintendent (and the 
chief state school officer) that "[a]n analysis of the data 
obtained during the [compliance] review establishes that your 
district pursues a policy of racially motivated assignment of 
teachers and other professional staff." S.Ct.A.415 (PX 11A). 
Following this determination the Dayton Board agreed with HEW to

15 /— ■ Thus, for example, in the 1968-69 school year, the Board con­
tinued to assign new teachers and transfers according to the 
following segregation practice (S.Ct.A.319 (PX 5A)):

Black Teachers 
White Teachers

Schools with 
predominantly 
white student 
enrollment

40
223

Schools with 
predominantly 
black student 
enrollment

95
64

As the former Superintendent testified, "it is obvious in terms 
of the new hires and transfers for that year the predominating 
pattern was the assignment of black teachers to black schools 
and white teachers to white schools." A.540.

-26a-



desegregate all staff so "that each school staff throughout the 
district will have a racial composition that reflects the total 
staff of the district as a whole" (S.Ct.A.416 (PX 11F)), in accor­
dance with the principles set forth in United States v. Montgomery 
County Board of Education, 395 U.S. 225 (1969). At that time, the 
Dayton professional staff was approximately 70% white and 30% black 
the Board-HEW agreement required complete staff desegregation by 
September 1971. S.Ct.A.417. Nevertheless, by the time of trial
in November 1972, it was still possible to identify many schools 
as "black schools" or "white schools" solely by the racial pattern 
of staff assignments.— ^

No non-racial explanation for the Board’s long
history of assigning faculty and staff on a racial basis is 

17/possible.— Nor can the impact of this manifestation of state- 
imposed segregation on student assignment patterns be minimized. 
While that effect is not precisely measurable, it is so profound 
that it could not have been eliminated merely by desegregating

— ' The manner in which the Board's assignment of its professional 
staff at the high school level, for example, still served to 
racially identify schools, although considerably less dramatic­
ally than prior to the 1971-72 school year, is demonstrated by 
a table set out by this Court in Brinkman I, 503 F.2d at 698. 
Moreover, classified personnel (e.g., secretaries, clerks, 
custodians and cafeteria workers) continued to be assigned on 
a racially segregated basis. A.541.

17 /— ■/ School officials, of course, had absolute control over the 
placement of their employees. Consequently, the Board’s 
historic race-oriented assignments of faculty members inten­
tionally earmarked schools as "black" or "white." A.642-43.

27a-



faculties and staffs.— ^ Such racial assignment of staff is also 
"strong evidence that racial considerations have been permitted 
to influence the determination of school policies and practices.. 
Kelley v. Guinn, 456 F.2d 100, 107 (9th Cir. 1972), cert. denied, 
413 U.S. 919 (1973).

[DISTRICT COURT'S OPINION (A.71-74). The district 
court conceded that "remnants of the old [explicitly racial] 
policy [of assigning black teachers only to teach black children] 
such as discouraging black teachers from going to all-white 
schools..., and assigning black substitute teachers to black 
schools..., did continue to appear after 1960," but the court 
argued that "the [1951-52] policy of dynamic gradualism was sub­
stantially implemented during the 1950's and 19 60's." A. 72.
This latter conclusion is not clearly erroneous only if it 
is read as recognizing that the Board's emphasis was on the gradu 
alism, in the words of its 1951-52 policy (see p. 22a, supra) of 
"not attempt[ing] to force white teachers [into black schools], 
against their will," and of "introduc[ing] negro [sic] teachers, 
gradually, into [white] schools...where there is evidence that 
such communities are ready to accept [them]." The facts set 
forth above are not disputable, and the district court's effort 
to set a tone different from those facts is clearly erroneous. 
Also plainly erroneous is the court's implicit effort to find 
support for its tone in the fact that "by 1969 the Dayton school 
system had the most black educators and the second highest per­
centage (24.4%) of black educators of the twenty largest systems

18 /— 7Dr. Robert L. Green, Dean of the Urban College and Professor 
of Educational Psychology at Michigan State University, de­
scribed how such faculty-assignment practice "facilitates the 
pattern of segregation" (A.246) in these terms (A.234):

When there has been historical practice of placing 
black teachers in schools specified as being essenti­
ally black schools and white teachers in schools that 
are identified or specified as being essentially white 
schools, even though faculty desegregation occurs, be 
it on a voluntary basis or under court order, the 
effect remains that school is yet perceived as being 
a black school or white school, especially if at this 
point in time the pupil composition of those schools 
are essentially uni-racial or predominantly black or 
white.

See also A.642-44, 1061-64, 1099-1112.

28a



in the State of Ohio." A . 7 2 . *_/ Similarly erroneous is 
the court's finding that "vestiges of the Board's earlier illegal 
practices were evident until approximately 1963 [, b]ut by 1969 
all traces of segregation were virtually eliminated." A.73; 
but see notes 15 & 16, pp. 26a & 27a, supra.**/

Finally, the court committed a fundamental error of 
both logic and fact in failing to recognize the obvious relevance 
of the Beard's race-based faculty policies to the question of the 
Board's segregative intent with respect to other areas of school 
administration affecting pupil attendance patterns. Thus, to 
argue, as the court does, that faculty segregation has no impact 
because in each instance "the school was already identifiable as 
being black because of the racial population of the students" 
(A.73), not only is factually untrue***/, but it also fails 
to give faculty-segregation practices their due weight of "hav[ing] 
the clear effect of earmarking schools according to their racial 
composition." Keyes, 413 D.S. at 202. See, e.g,, note 18, p. 28a, 
supra. This "clear effect" may not be quantifiable with mathe­
matical precision, but it is substantial in any realistic sense.
The district court's contrary conclusions are clearly erroneous.]

ic /—/ This argument is specious. In school systems in almost every 
state which had explicit segregation laws the proportionate 
number of black teachers was as substantial as in Dayton. And 
as in Dayton, the "southern" districts also assigned pupils and 
teachers to schools, in the words of Brinkman I, "pursuant to an 
explicit segregation policy." 503 F.2d at 697. Thus, the 
presence of a substantial number of black teachers may in some 
cases be evidence of non-discriminatory hiring; in others, it 
is the legacy of an explicitly dual system of hiring and assign­
ing teachers on a racial basis, as in Dayton.

k k  /— 7 Also wrong is the idea that HEW's intervention in 1969 was 
"edgting] the legal limit." Id. See note 30, p. 48a, infra.
As former Superintendent Carle pointed out, HEW actually acquiesced 
in the Board's desire to delay by allowing the Board a two-year 
period within which to achieve compliance. A.1010-11.

k k k  /
---For example, in 1962 when the Board converted the old Dunbar

into McFarlane elementary and opened the new Dunbar High School, 
virtually all-black faculties and virtually all-black student 
bodies were simultaneously assigned to these schools. See 
pp. 38a-39a, infra. Faculty- and student-assignment practices 
operate hand-in-glove, a point so obvious it is difficult to 
understand how the district court missed it.

-29a-



2. Optional Zones and Attendance Boundaries
We have already shows how the Dayton Board utilized 

optional zones and attendance boundary manipulation as segrega­
tive devices in connection with the 1952 West-Side reorganization 
(see note 11, and pp. 17a-18a, supra). There are additional 
examples of both practices which stand on their own as segregation 
techniques.

Optional zones are dual or overlapping zones which 
allow a child, in theory, a choice of attendance between two or 
more schools. A.562. Yet, the criteria stated by the Board for 
the creation of both attendance boundaries and optional zones 
are precisely the same: they constitute merely a type of boundary
decision and serve no other educational or administrative purpose. 
A.544, 683-84. Optional zones have existed throughout the Dayton 
school district and apparently have been created whenever the 
Board is under community pressure which favors attendance at a 
particular school or disfavors attendance at a particular school. 
A.600, 844-45. Other than for such purely "political" reasons, 
there is no rationale which supports the establishment of an 
optional zone rather than the creation of an attendance 
boundary, which is a more predictable pupil-assignment device 
(A.685); and optional zones are at odds with the so-called 
"neighborhood school concept." A.7.

In many instances in Dayton optional zones were 
created for clear racial reasons, as, for example, in the West- 
Side reorganization, while in other instances the record reveals

-30a-



no known reason for their existence. But even in these latter 
instances some optional zones have had clear segregative effects. 
From 1950 to the time of trial, optional zones existed, at one 
time or another, between pairs of schools of substantially dispro­
portionate racial compositions in some fifteen instances directly 
effecting segregation at some 21 schools.— '/ In addition, at the 
high school level, Dunbar remained in effect a city-wide optional 
zone for blacks only through 1952 when it was converted into an 
all-black elementary school (A.574-75, 632-34) (see pp. 38a-39a, 
infra); and Patterson Co-op remained a city-wide and, through the 
1967 school year, virtually all-white optional attendance zone.— '/ 
In conjunction with the attendance-area high schools, these two 
special high schools operated as city-wide dual overlapping zones

19 /—  The West-Side reorganization in 1952-53 (see note 11, p. 17a,
supra) involved six optional areas with racial implications: 
Willard-Irving, Jackson-Westwood, Willard-Whittier, Miami 
Chapel-Whittier, Wogaman-Highview, and Edison-Jefferson. A.589-
9 1 ' 509-24• Other optional zones with demonstrable racial 
significance at some time during their existence include the 
following: Three optional zones between Roosevelt and the
combination Fairview-White; two optional zones between Residence 
Park and Adams; and optional zones between Westwood and Garden- 
dale, Colonel White and Kiser, Fairview and Roth, Irving and 
Emerson, Jefferson and Brown, and Jefferson and Cornell Heights. 
A. 591-601, 604-05, 691-709; PX 47-51.

20/—  The city-wide Patterson Co-op operated in a more subtle segre­
gative fashion than did Dunbar. In 1951-52, Patterson had no 
black students and no black teachers (S.Ct.A.507 (PX 130B)); by 
1963 its student body and faculty were only 2% black (S.Ct.A.508 
(PX 1300); and by 1968 the pupil population rose to 18.3% 
black and the faculty to 3.5% black. S.Ct.A.509 (PX 130D). 
Students were admitted to Patterson through a special process 
involving coordinators and counselors, none of whom were black 
prior to 1968. A.755-58, Patterson has over the years served 
as an escape school for white students residing in black or 
"changing” attendance zones, particularly Roth and Roosevelt.
R.I. 1056-57.

-31a-



contributing to the pattern of racially dual schools at the high 
school level throughout the district. See A.632-34, 636-38; R.I. 
1056-57.

Actual statistics on the choices made by parents 
and children in four optional areas are available. In each 
instance the option operated in the past, and in three instances 
at the time of trial, to allow whites to transfer to a "whiter" 
school. For example, in the Roosevelt-Colonel White optional 
area (which was carved out of Roosevelt originally about 1951-52 
when the Board was creating optional areas between various West- 
Side elementary schools (see note 11, p. 18a, supra), from the 1959- 
60 school year through the 1963-64 school year a cumulative total 
of 1,134 white but only 21 black students attended Colonel White.
S.Ct.A.464 (PX 15A1).—  Testimony from a Dayton school administrator 
indicates that from 1957 through 1961, although this optional area 
was predominantly white, black students who lived in the area 
attended Roosevelt which had become virtually all-black (Colonel 
White was 1% black). A.388-89. The Roosevelt yearbook for 1962 
shows that only three white seniors from the optional area attended 
the black high school. S.Ct.A.462 (PX 15A). As Mrs. Greer testified,

21/— At the November, 1977 hearing the Board presented a witness 
who had conducted a statistical analysis of this optional 
area and argued that it was having an integrative effect by 
1970 because blacks in the zone were attending Colonel White.
A.975-80. This witness conceded, however, that he was only 
looking at the effect on the "white" school (Colonel White) and 
not the "black" school (Roosevelt); the true picture, therefore, 
was that in 1970 317 white students used the optional zone to 
avoid attending Roosevelt, which was thereby made 100% black 
rather than the 87% black it would have been without the racial 
option. A.991-95. This impact, of course, was in accord 
with the historic purpose and function of optional zones in 
Dayton. See note 11, p. 17a, supra.

-32a'



this optional area did "an excellent job of siphoning off white
2? /students that were at Roosevelt." A.269

Although many of these still-existing optional zones 
had already fulfilled their segregative purpose by the time of 
trial, over time they clearly contributed substantially to and 
facilitated school segregation. Moreover, even by the time of 
trial several of these optional areas continued to permit whites 
to escape to "whiter" schools, thereby further impacting the 
black schools and precipitating additional instability and transi-

22/— • As another example, the Colonel White-Kiser option acquired its 
racial implications after its creation in 1962 with the racial 
transition of the Colonel White school, to which the Colonel 
White-Roosevelt option contributed in no small measure. At its 
inception and for several years thereafter, when both schools 
were virtually all-white, most children in the White-Kiser 
option area chose White. As Colonel White began to acquire 
more black students, whites chose Kiser more often until in the 
1971-72 school year, no white children chose the 46% black 
Colonel White school, while 20 chose the 6% black Kiser school. 
S.Ct.A.465 (PX 15B1), 554 (DX AI(b)).
The rebuttal figures provided by the defendants on the Residence 
Park-Jackson optional area (see note 11, p. 18a, supra) are 
equally instructive, because the figures relate to a time when 
the optional area did not even exist by reason of the construc­
tion of the virtually all-black Carlson school and its assump­
tion of the old Veterans Administration optional area as its 
regular attendance zone. S.Ct.A.586 (DX CO), 587 (DX CP). In 
any event, defendants' exhibit shows that from 1957 through 1963 
no children from the former V.A. optional area attended Jackson, 
while 32 whites (and 8 blacks) attended Residence Park. In the 
1957-58 school year, Residence Park was basically white and 
Jackson was black. A.220, 585-87. (By 1963, however, Residence 
Park had become 80% black. S.Ct.A.508 (PX 1300.)

-33a-



tion in residential areas.— '
Formal attendance boundaries, in conjunction with

optional zones, have also operated in a segregative fashion; and
in some instances firm boundaries were also drawn along racial 

24/lines.—  An example is the boundary separating Roth and Roosevelt 
which was drawn in 1959. Roth took almost all the white residential

23/— From 1968 through 1971, when Roosevelt was a 100% black school, 
for example, 375 white children from Roosevelt-Colonel White 
optional area attended Colonel White. S.Ct.A.464 (PX 15A1). 
Throughout its life, then, this option has allowed very substan­
tial numbers of white children to avoid attending Roosevelt. By 
1968, however, and not atypically, the optional area had undergone 
significant racial change and substantial numbers of black children 
were also attending Colonel White. S.Ct.A.462-63 (PX 15A), 464 
(PX 15A1). Plaintiffs' expert, Dr. Foster, explained how optional 
attendance areas facilitate both educational and racial segregation

[T]the short term effect...is to allow whites to 
move out of a school assignment that is becoming 
black...[A.604].
[Gjeneraily where you have an optional zone which 

has racial implications, you have an unstable situ­
ation that everyone realizes is in a changing 
environment. So, what it usually does is simply 
accelerate whatever process is going on or work toward 
the acceleration of the changing situation...[T]hese 
[optional areas in Dayton] accelerated and precipi­
tated further segregation...[A.601].

24/
— ■' In some instances, and xn addition to the official optional 

zones, attendance boundaries have not been enforced for white 
children when assigned to black schools. For example, a pupil 
locator map made to assist in developing a middle school plan 
in the 1970-71 school year showed that many white children 
assigned by their attendance zone to the predominantly black 
Greene school were actually attending predominantly white 
schools located on the other side of Wolf Creek. A.469-70.
A similar situation existed in the Carlson area. See note 22, 
p. 33a, supra.

-34a-



areas on the far west side of Dayton from Roosevelt. At its 
opening, Roth had only 662 pupils, while Roosevelt's enrollment 
dropped by 602. Coupled with the exodus of whites out of Roosevelt 
through the Colonel White-Roosevelt optional areas, almost all 
whites were thereby transferred out of Roosevelt by Board action, 
in short order converting Roosevelt into a virtually all-black 
school. A.630-31; PX 48 & 46. (And, of course, the designation 
of Roosevelt as a black school was evidenced, in the traditional 
way, by assigning ever-increasing numbers of black teachers to 
the school. A.139-42 (PX 3).)

At about this same time, Meadowdale high school also 
opened, but as a virtually all-white school. S.Ct.A.317 (PX 4). 
Opportunities were available for the placement of such high schools 
and use of the excess capacity or the redrawing of the boundaries 
of Roth, Roosevelt, Stivers, Fairview and Meadowdale in order 
to accomplish desegregation. But school authorities selected 
the alternatives that continued rather than alleviated the extreme 
racial segregation at the high school level. A.737-41, 581-82, 
630-31; PX 6. This pattern was capped in 1962 when a new Dunbar 
high school opened with a virtually all-black faculty and a 
defined attendance zone that produced a virtually all-black 
student body. At the same time the Board converted the old Dunbar 
high school building into an elementary school (renamed McFarlane), 
whose newly-created attendance zone took in most of the students 
in the zones for the all-black Willard and Garfield schools, 
which were closed. See note 9, pp. 12a-13a, supra, and pp. 38a- 
39a, infra.

-35a-



Finally, the Board also persistently refused to 
redraw boundaries between, or pair, contiguous sets of schools 
which had been, and were at the time of trial, substantially dis­
proportionate in their racial compositions. Examples of such 
contiguous pairs include Drexel (8% black) and Jane Adams (79% 
black); McGuffey (42% black) and Webster (1% black) or Allen 
(1% black); Irving (99% black) and Emerson (9% black); Whittier 
(99% black) and Patterson (0% black). PX 68, 62. Such alterna­
tives to segregation —  many of which were recommended by sub­
ordinate school administrators and even the Ohio State Department 
of Education (A.309-12; S.Ct.A.419-55 (PX 12)) —  were rejected 
by the Board.

[DISTRICT COURT'S OPINION (A.74-75, 78-79, 81-90, 
91). The court's unsupported summary conclusion that "[n]o 
evidence has been presented suggesting that attendance zones were 
redrawn to promote segregation" (A.75), is clearly erroneous, as 
the evidence set forth above demonstrates. Examples of similar 
errors include the conclusion that no segregative intent was 
involved in the redrawing of Dunbar's high school zone in 1962, 
as well as the boundary changes attendant upon conversion of the 
old Dunbar into McFarlane elementary. A.78-79. Viewed in their 
historical context (which of course the district court does not 
do) there is no alternative but to conclude that these changes 
were carried out with plain old-fashioned segregative intent. 
Similar clear error occurred with respect to the court's evalua­
tion of the Roosevelt boundary change which accompanied the 1959 
opening of Roth High School (A.91) as demonstrated by the factual 
discussion at pp. 34a-35a, supra.

The court's conclusions that optional zones, includ­
ing the city-wide high school options, had neither segregative 
intent nor effect (A.81-91), also are clearly erroneous. Here 
as elsewhere the court commits threshold error in not analyzing 
the optional zones in light of their genesis in the early 1950's 
when they were deliberately initiated for demonstrably segrega­
tive ends. See Appendix C, pp. 17a-18a, supra.*/ In proper

* /
—  Optional or dual overlapping zones were the mainstay of the 

"southern" style of dualism. See Green, 391 U.S. at 432.
[footnote cont'd on next page]

-36a-



context, therefore, many optional zones in the Dayton district 
were instituted for racial reasons, and over time they had a 
significant racial impact which preserved, perpetuated and exac­
erbated intentionally-imposed systemwide segregation. The 
court’s contrary conclusions are manifestly erroneous. The 
facts and their true meaning are as we have set them out above.]

3. School Construction, Closing and Site Selection 
The Board’s school-construction, school-closing and 

site-selection policies and practices over the past two decades 
failed to alleviate the condition of state-imposed segregation 
extant at the time of Brown. To the contrary, the Board's policies 
and practices in these areas impacted the dual system and literally 
sealed it in. In the period of expansion of the school system 
from the late 1940's to the mid-1960's, the overwhelming majority 
of new schools and additions to schools were located by the Board 
in either virtually all-black or virtually all-white areas, and 
attendance boundaries were drawn or maintained so that new schools 
and expansions of existing facilities opened as virtually one-race 
schools. A.562-71, 649-50; R.IV. 512-14. Of 24 new schools con­
structed between 1950 and the present, 22 opened 90% or more black

*'_/ (cont'd)
Such options are a classical segregation device which the courts 
have found prevalent in the "northern" cases as well. See, e.g., 
United States v. School District of Omaha, 521 F.2d 530, 540-43 
(8th Cir.), cert. denied, 423 U.S. 946 (1975) , and cases cited; 
Bradley v. Milliken, supra, 484 F.2d at 232-35, and cases cited. 
Judge Wisdom has correctly described this device as "unadul­
terated segregation." United States v. Texas Educ. Agency, 457 
F,2d 848, 867 (5th Cir. 1972),

-3 7a-



or 90% or more white. A.562-63; S.Ct.A.316-17 (PX 4). During the 
same expansion period, additions to existing facilities followed 
the same pattern. Seventy-eight of some 86 additions of regular 
classroom space, for which racial compositions are known, were 
made to schools 90% or more one race at the time of the expansion; 
only nine additions were made to schools less than 90% black or 
white. A.649-50. The race-based nature of these practices is 
made crystal clear by the coordinate assignment of professional 
staffs to these schools and additions tailored to the racial 
composition of the pupils. S.Ct.A.316-17 (PX 4); A.644, 794-96, 
800, 924-25, 926-28, 1018-19.— ^

A few examples will suffice to illustrate the racial 
underpinnings of this complex process. For example, in 1962 the 
Willard and Garfield schools, previously designated for blacks 
only, were closed and the old blacks-only Dunbar high school 
building was converted into McFarlane elementary. Most of the

25 /— 'Plaintiffs' expert, Dr. Gordon Foster, testified that such 
school construction patterns "by and large ... took the place 
of changing zone lines in terms of maintaining existing racial 
patterns and compacting them." A.734. Mr. Bagwell, the Dayton 
Board's chief rebuttal witness with respect to school con­
struction, admitted that "in effect then, when you ... put an 
addition to a school, that as far as that space is concerned, 
you determine the boundaries and they are coextensive with the 
original boundaries of the school.... So that if a school is 
already 100 percent black and you are making an addition to 
that school, you in effect have determined the boundaries to 
be ... creating a hundred percent black school unit." A.799. 
The same is true with respect to the virtually all-white or 
all-black primary units, as well as one-race additions.
A. 582, 951-53, 1087-93. And the placement of portable class­
rooms also operated to seal in the racial patterns. A.575-80.

-38a-



children from the Willard and Garfield attendance areas were simply 
assigned to the McFarlane school which opened, certainly to no 
one's surprise, with an all-black pupil population and an all-black 
faculty. Some children from the Willard and Garfield areas were 
also assigned to the all-black Irving and Miami Chapel elementary 
schools. At the same time, a newly constructed Dunbar high school, 
located in a black neighborhood at the farthest corner of the 
school district away from substantial white residential areas, 
opened with a virtually all-black student body and faculty. See 
Appendix C, note 9, pp. 12a-13a, supra; A.574-75, 632-34, 1034-35, 
1038-39, 1041-42, 1051-57, 1093-98. Thus, a major new element 
was added to the dual system and, although there was some juggling 
within, the color line was expanded and reinforced.

A final example, presenting the converse of the 
above examples, relates to the Board's failure to utilize excess 
capacity to the maximum efficiency as pupil populations declined 
by over 10,000 following their peak year in the mid-1960's. Even 
conservative estimates at the time of trial indicated that the 
Board could have closed down 9 or 10 average-size elementary schools. 
A.571-75; S.Ct.A. 4 89-98 (PX 56). Such closings would have pre­
sented the Board with substantial opportunities to accomplish 
significant savings in costs, and at the same time accomplish 
substantial desegregation.— '2 * * * * 7 But rather than closing selected

2 6/— 7 There would be substantial cost savings with respect to such
closings, even if substantial pupil transportation were required
to accomplish school desegregation conveniently and safely for
the children. According to the Board, the average yearly per

[footnote cont'd on next page]
-39a-



black and white schools and reassigning pupils to accomplish 
actual desegregation, the Board elected the more costly segregative 
option of keeping these under-utilized schools open and maintaining 
their racial identity.

[DISTRICT COURT'S OPINION (A.87-89, 90-97). The 
district court acknowledged the segregative pattern of the Board's 
school construction/site selection practices (A.90), which from 
an administrative perspective "approached the level of haphazard 
in some instances." Id. at 91. The court concluded, however, 
that plaintiffs had not shown that the Board's practices of "site 
selection, construction of additions, use of portables, or school 
utilization had a segregative purpose or that such policy had an 
incremental segregative effect upon minority pupils, teachers, 
or staff." A.97. With respect to the question of segrega­
tive intent, the court's conclusion is unsupportable. The court 
is able to arrive at this conclusion with a straight face only by 
treating these practices in a context completely removed from the 
Board's systematic pre-Brown practices of building and converting 
schools for black students and black teachers only, by not recog­
nizing how much the post-Brown patterns of faculty assignments 
to new schools bespoke unmitigated segregative intent, and further 
by avoiding the obvious facts, such as the construction of the new 
Dunbar (and the interrelated closing of Willard and Garfield, and 
the conversion of the old Dunbar into McFarlane), which are inex­
plicable except in terms of race. In this more complete context 
(a context which the court studiously refused to deal withjV),

26/ (cont'd)
pupil transportation cost on Board-owned buses is $50.00, while 
the average yearly per pupil cost for simply maintaining a pupil 
space in a school is $140.00. (Nos. 33 & 33A of plaintiffs' 
Requests for Admissions (served October 13, 1972), admitted by 
both the Board and the Superintendent and Board minority. A.119, 
132, 136.)

* /
—  The court insisted on wearing blinders to the extent of re­

fusing to allow a plaintiffs' witness to testify about matters 
occurring prior to 1954. A.1026. Having thus frustrated 
and limited the witness, the court then proceeded, in unsports­
manlike fashion, to rely upon him for a finding adverse to 
plaintiffs (A.88), as well as to the record as a whole.

-40a'



the finding of no segregative intent is clearly erroneous. Even 
more astounding is the court's conclusion that none of these prac­
tices had segregative effect I This conclusion is contrary to the 
court's own subsidiary findings (e.g., A.90), and contrary to 
sound reason. Given the opinion's repeated conclusions that 
nothing the Board did had a segregative effect, a stranger to the 
district court's conduct in this case would no doubt be puzzled, 
if not flabbergasted, as to why the Dayton schools were almost 
totally segregated at the time of trial. These "findings" also 
are wholly in error.]

4. Grade Structure and Reorganization
As previously noted, the Board persistently refused 

to alter grade structures by pairing schools to accomplish pupil 
desegregation. See p. 36a, supra. Likewise, the differential 
grade structure involved in the construction of primary units, and 
the grade organizations of the Dunbar high school (prior to 1962) 
and the Patterson high school (prior to 1968-69 school year) have 
perpetuated and compounded school segregation. See notes 9 & 20, 
pp. 12a & 31a, supra.

The Board acted in similar fashion in the 1971-72 
school year when it reorganized the grade structures of some 20 
elementary schools from K-8 to K-5, 6-8. This grade reorganization 
program presented an important opportunity for the Board to accom­
plish substantial desegregation by judicious selection of sites, 
alterations of feeder patterns, and the establishment of the new 
attendance zones for both the middle (6-8) and elementary schools 
(K-5) affected. S.Ct.A.376-87 (PX 10). Yet, in the face of recom­
mendations from the State Department of Education of alternatives 
for accomplishing substantial desegregation, and the development 
of a pupil locator map so that there could be no doubt about the 
racial impact of its actions, the Board implemented a plan which

-41a-



reimposed segregation at three middle schools and their feeder 
elementaries, increased racial segregation at another middle 
school, and accomplished some desegregation at the fifth middle 
school. S.Ct.A.453-54 (PX 12). The Board's actions thus resulted 
in "increasing or maintaining segregation as opposed to availing 
the opportunity of decreasing it." A.646. The Ohio State Depart­
ment of Education was of a similar view; it notified Dayton school 
authorities that the middle school reorganization program "has 
only added one more action to a long list of state-imposed activ­
ities which are offensive to the Constitution and which are de­
grading to schoolchildren." S.Ct.A,454 (PX 12).

[DISTRICT COURT'S OPINION (A.77). The district 
court concluded that the grade-structure reorganization accompany­
ing the creation in 1971 of five middle schools was not a result 
of segregative intent. This conclusion might not be clearly erron­
eous if the facts had arisen in a school system with no history of 
intentional segregation. But these events occurred in Dayton, 
and even the Ohio State Department of Education could not avoid the 
conclusion that the Board was up to its same old segregative tricks. 
The district court's contrary finding is clearly erroneous.]

5. Pupil Transfers and Transportation
Prior to the West-Side reorganization in 1952 (see 

Appendix C, pp. 17a-18a, supra), the Dayton Board regularly trans­
ferred (and provided transportation where necessary to) white 
children from the attendance areas of black schools, past or away 
from other all-black schools to "whiter" schools. A.861-63. 
Thereafter, the Board utilized optional zones to provide white 
children with an equally effective means of transferring out of the 
core black schools to "whiter" schools. See note 11, p. 17a, supra.

-42a



And the city-wide Dunbar and Patterson high schools operated 
in similar fashion. See notes 9 & 20, pp. 12 & 31, supra.

In addition, curriculum, hardship and disciplinary 
transfers have functioned in many instances to assign white 
children from black schools to "whiter" schools. A.390-93, 355, 
356-57. Two prime examples are the use of curriculum transfers 
by white students under the Freedom of Enrollment plan (A.356-57), 
and the emergency transfers of students in 1969 involving the Roth 
and Stivers high schools. A.638-40; S.Ct.A.469-70, 474 (unmarked 
exhibits). This latter incident takes on additional significance 
because it occurred in connection with the only time prior to 
trial that the Board redrew an attendance boundary to accomplish 
desegregation. This was accomplished by adding some of the all­
black Roosevelt and Dunbar attendance areas to the predominantly 
white Stivers high school. A.486-89. In the very first year 
following this realignment, racial problems at Stivers, as well 
as at the predominantly black Roth, led to the transfer of 34 
black students out of Stivers to the all-black Dunbar or Roosevelt 
schools, and 36 white students out of Roth to the virtually all- 
white Meadowdale, Stivers, Kiser and Fairview high schools. None 
of the white children transferred were assigned to black schools; 
and none of the black children transferred were assigned to white 
schools. A.491-98.

Overall, hardship, emergency and special education 
transfers were also carried out in such a way as to reflect and 
reinforce the underlying racial duality in pupil assignments.
A. 639. During the 1972-73 school year, for example, 266 (or 70%)

-43a-



of the 377 black children transferred were assigned to black 
schools, and 155 (or 91%) of the 171 white children transferred 
were assigned to white schools. S.Ct.A.379-80 (PX 16F).

Throughout the post-Brown period, non-resident pupils 
attending the Dayton system on a tuition basis were assigned in a 
similar racially dual fashion: white pupils were assigned to
white schools (A.473-74), and black pupils were assigned to black 
schools. R.I. 579-80. The assignment practices relating to sev­
eral hundred white high school pupils from Mad River Township, who 
attended the Dayton system on a tuition basis throughout the 1950's, 
is illustrative. These students were assigned to the virtually 
all-white Stivers, Kiser, Wilbur Wright, and Belmont high schools. 
When the Board felt there might be capacity problems at the schools, 
the Board did not consider assigning these non-resident pupils to 
the black Dunbar, Roosevelt or Roth high schools, which had ample 
space. Instead, the Board notified the Mad River Township school 
district that space would be unavailable for these tuition pupils 
in the 1960's. A.473-77, 857-60; S.Ct.A.475 (unmarked exhibit).
In all of the various forms of pupil reassignment, it was the 
unbroken practice of the Board never to reassign white pupils to 
identifiably black schools. A.474.

An additional, classical segregative technique 
utilized by the Dayton Board was "intact" busing. There are 
two examples. First, in 1963 white children from the Ruskin 
school were transported intact (i.e., teacher and class as a unit) 
into separate one-race classes at the racially mixed Central

-44a-



school. A.304-05. The second instance occurred in 1968 when 
the black Edison School was partially destroyed by fire. These 
black children were transported to a number of white schools 
throughout the city. ' But they remained as segregated as if they 
had been transferred to all-black schools, because they were 
accommodated in the white transferee schools in separate intact 
classes. A. 301-03, 421-23.— '/

27 /— Significantly, intact busing was not the Board’s first alterna­
tive with respect to reassigning the Edison children. As Assis­
tant Superintendent Harewood, the first black in the Board's 
central administration, recounted the incident, the first pro­
posal under consideration was to house these black children in 
neighborhood churches. This proposal was abandoned only under 
pressure from Mr. Harewood, who pointed out that there were 
vacant classrooms in other schools in the city. Then, without 
further consultation with Mr. Harewood, the decision was made 
to transport self-contained black units into the white schools.
A.301-03. The next fall, the new Superintendent of Schools 
ordered that the "intact" aspect of these reassignments be 
terminated. Upon later examination, however, he found that the 
black children were still being segregated within the white 
schools under somewhat more subtle "tracking" procedures, and 
he again ordered that the children be fully integrated. A. 423- 
24. Thus, only through pressure from a new Superintendent and 
from Mr. Harewood was the "intact" brand of racial discrimination 
terminated, and the Edison children integrated into the white 
schools to which they had been reassigned.
Also at this time, predominantly black groups of children from 
the over-crowded Jefferson school were assigned by non-contiguous 
zoning to a number of white schools. A.397, 399; PX 122.
These small amounts of actual, although only one-way, desegre­
gation were short-lived, however. Instead of expanding the 
use of these desegregative alternatives, the Edison and Jefferson 
reassignments were terminated for the 1971-72 school year and 
the black children were resegregated into the rebuilt black 
Edison school (and by then, the black McFarlane middle school), 
and the black Jefferson school. A.465. The segregative effect 
of these reassignments is shown by the following chart comparing 
the percentage of blacks in the receiving white schools (see 
PX 122) in the 1970-71 school year to that existing in the 1971- 
72 school year:

[footnote cont’d on next page]

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Thus, for several decades Dayton school authorities 
have transported children for a variety of reasons. But, with 
only a few hard-fought exceptions, children have never been trans­
ported in such a fashion as to accomplish desegregation; with 
singular consistency, the Dayton Board's transportation practices 
have maintained, reinforced and/or exacerbated racial segregation.— 7 

Finally, the Board's Freedom of Enrollment policy, 
as it existed at the time of trial, was, at best, a washout as a 
desegregative technique. Under this policy, students residing in 
an attendance area were given first priority to attend that school; 
second priority was given to students requesting transfer to a

27/ (cont’d)
School % Black 

1970-71
% Black 
1971-72

Ft. McKinley 9.6 1.6
Loos 9.5 6.0
Horace Mann 11.1 0.7
Shiloh 7.4 0.9
Shoup Mill 13.9 1.4
Velerie 20.0 13.5

28/— Although transportation has been used only twice (see note 27, 
supra) for desegregation purposes, pupil transportation has not 
been an uncommon event in Dayton. For many years white children 
in the far northwest, northeast and southeast areas of the system 
were transported to white schools in those areas (A.440), and, 
of course, black orphan children were transported all the way 
across town to the all-black Garfield school (see Appendix A, 
note 6, p. 10a, supra).
Ohio law requires that local school authorities make transpor­
tation available, and the Dayton Board so acts, for students who 
are assigned to schools beyond a prescribed distance from home.
A.432, 440, 866-67.

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school for a specially available course; and the third priority 
was given to children requesting transfers and whose enrollment 
would improve the racial balance in the receiving school. S.Ct.A. 
466-67 (PX 16B). The first priority merely froze in the pattern of 
segregation which began two-thirds of a century ago. The second 
priority actually contributed to school segregation because it was
used by whites to transfer from black schools to white schools.-

29/A.356.—  Under the third priority, 459 black children transferred 
in the 1972-73 school year to white schools, thereby accomplishing 
some actual desegregation; but only one white child, formerly in 
a parochial school matriculating into a 54.3% black high school, 
made a racial balance transfer. S.Ct.A.478 {PX 16D); A.639. Hence, 
transfers under the Freedom of Enrollment policy were exclusively 
one-way —  i.e., some blacks and some whites transferring to white 
schools —  and had a negligible if not retrogressive impact on the 
racially dual pattern of pupil attendance.

[DISTRICT COURT'S OPINION (A.77-81). Even if the 
approach of the district court is followed and the above facts 
are assessed in total ignorance of the remainder of this massive 
record, the conclusion would seem inescapable that many of 
these instances reflect subjective racial malevolence on the part 
of the school authorities. The district court not only ignores 
the whole record, however, it also ignores many of these facts; 
as to others, the court summarily concludes that the evidence 
reflects nothing more than strict racial neutrality. By them­
selves and in the context of the other widespread discrimination 
of record, the facts described above are further evidence of the 
intentional discrimination which infected the Dayton school system 
at the time of trial. The court's refusal to so conclude is clear­
ly erroneous.3

—  In the 1972-73 school year, for example, 22 of 23 white stu­
dents transferring under the Freedom of Enrollment policy were 
transferred to white schools. S.Ct.A.478 (PX 16D).

29/

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6. The Board's Recission of Its Affirmative Duty 
As reflected in the foregoing pages, black citizens 

of Dayton have been thwarted in their attempts to end state- 
imposed racial segregation in their public schools. Even aggres­
sive action, such as that taken by Robert Reese's father when he 
went to court in 1926 to challenge intentional efforts to segre­
gate his children, was effectively blunted by Dayton school author­
ities committed to separation of the races. See Appendix C, pp. 
8a-15a, supra. During another period of active unrest, 1951-52, 
the Board imposed the West-Side reorganization and a new racially 
discriminatory faculty-assignment policy. See id. at pp. 16a-22a, 
supra. The black community's repeated protests following Brown 
to the continued segregation also were turned aside. See S.Ct.A. 
358-59, 456-57, 459-61. By the late 1960's, however, those who 
objected to state-imposed school segregation began to gain allies, 
both in the white community in Dayton and among state and federal 
agencies. As previously noted (see pages 26a-27a, supra), HEW con­
ducted a Title VI compliance review in 1968 and forced the Board 
in 1969 to agree to end its racially dual facuity-assignment 
practices. HEW had also noted the "substantial duality in terms 
of race or color with respect to distribution of pupils in the 
various schools ..." (S.Ct.A.415), but the agency did not pursue 
this concern with similarly aggressive action.— ^

— ^As is commonly known, from the frequent judicial declarations 
on the subject, HEW has generally failed to fulfill its Title VI 
obligations with respect to pupil desegregation in both the 
North and the South. See, e.g., Adams v. Richardson, 480 F.2d 
1159 (D.C. Cir. 1973) (en banc); Brown v. Weinberger, 417 F.Supp. 
1215 (D.D.C. 1976). And it has not been notably aggressive 
even with respect to faculty segregation. See Kelsey v. Wein­
berger, 498 F.2d 701 (D.C.Cir. 1974).

-4 8a-



Also during these years, the Dayton Board, in the 
1971 words of the State Department of Education, "passed various 
and sundry resolutions ... designed to equalize and to extend 
educational opportunities, to reduce racial isolation, and to 
establish quality integrated education in the schools." S.Ct.
A. 423. But these were just words and informal ones at that. As 
the State Assistant Superintendent for Urban Education noted at 
the same time, there was a definite need for action and not just 
words. S.Ct.A.422.

On April 29, 1971, the Board requested assistance 
from the State Department of Education's Office of Equal Educa­
tional Opportunities to provide technical assistance in the devel­
opment of alternative desegregation plans. The Board also 
authorized its President to appoint a committee of community 
representatives to assist and advise the Board in connection with 
such proposed plans. S.Ct.A.354-55.

The State Department of Education responded by 
assembling a team of consultants and specialists to evaluate data 
and make recommendations. Their recommendations were submitted 
to the Dayton Superintendent on June 7, 1971. S.Ct.A.419-55. The 
State Department advised the Dayton Board of its constitutional 
and other legal obligations (S.Ct.A.435) (emphasis in original):

Since the Board, as an agency of state govern­
ment , has created the inequality which offends 
the Constitution, the Ohio State Department of 
Education must advise that the Dayton Board of 
Education clearly has an affirmative duty to 
comply with the Constitution; that is, as the 
Supreme Court has stated, "to eliminate from the 
public schools all vestiges of state-imposed 
segregation."

-49a



The State Department then turned its attention to a list of alter­
natives, and urged the Dayton Board to shoulder its constitutional 
obligations now (S.Ct.A.441) (emphasis in original):

Delaying tactics could be continued. The 
Board, in spite of resolutions and overt commit­
ment, could choose to make only the slightest 
mandated changes, and to utilize the best legal 
talent available to resist compliance with con­
stitutional requirements. Other school districts 
have chosen this alternative, even as Dayton has 
used similar methods in the past. However, the 
highest court in the land has stated the consti­
tutional offensiveness of state-imposed segrega­
tion of school-children, and persisting delay 
clearly violates the oath of office of members 
of the Board of Education in the state of Ohio.

The State Department concluded by recommending "a comprehensive
plan" that would be a "constitutionally valid and inoffensive,
educationally sound, and morally proper" approach for "the Dayton
Board of Education, acting as an agency of Ohio State Government...
to take. S . Ct. A. 444 ^

The Board-appointed advisory committee of community 
representatives became known as the "Committee of 75." In his 
charge to the Committee, the Dayton Board President stated: "We
have admitted that the district is guilty of procedures which have 
led to the racial isolation of school children." S.Ct.A.356. The 
Committee issued its report in the fall of 1971. The Report of 
the Committee of 75 (S.Ct.A.345-69) also urged the Board to adopt a 
comprehensive plan and joined the State Department in emphasizing

31/— Under the terms of Opinion No. 68±0, issued by the Ohio Attorney 
General on July 9, 1956, the State Department of Education has 
the primary affirmative duty to see that local school districts 
comply with their Fourteenth Amendment obligations with respect 
to public schooling. S.Ct.A.597-606.

-50a-



"that time for a change in Dayton has run out! We must act now." 
S.Ct.A.369.

On December 8, 1971 the Dayton Board of Education, 
for the first time ever, responded with meaningful action. It 
first "recognize[d] and admit[ted] that racial and economic segre­
gation exists in the Dayton schools because of the actions and 
inactions of this and predecessor Boards in the establishment of 
attendance districts, the location and expansion of school build­
ings, pupil assignment practices, design of curriculum suitable 
to urban needs, the assignment of teachers and other staff, and 
the conduct of student activity programs...." S.Ct.A.321. The 
Board then adopted a program of actual systemwide desegregation 
and directed the Superintendent to implement such a new pupil- 
assignment policy for the 1972-73 school year. The new policy
consisted of two principal parts: first, the existing attendance

32/zones and the Freedom of Enrollment policy— ' were abrogated 
effective September 1, 1972; second, in their stead, a new pupil- 
assignment policy was adopted, the goal of which was that no school 
would have a racial composition "substantially disproportionate to 
the district as a whole." S.Ct.A.329. Pursuant to the Board's 
directions, the Superintendent of Schools adopted a plan for Fall

32/— The Board's Freedom of Enrollment policy was adopted in 1969.
S.Ct.A.466-67. It had a very negligible, one-way desegregative 
effect (i.e., a few black students transferring to white schools), 
but white students did not transfer to black schools. S.Ct.A.478 
(PX 16D). As the Superintendent testified, "the pattern.... 
has been pervasive down through the years, that no white students, 
regardless of from where they came, or the purpose, were assigned 
to black schools." A.474.

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prepared by Dr. Gordon Foster and others of the Title IV Florida 
School Desegregation Consulting Center of the University of 
Miami. S.Ct.A.370-414.

On January 3, 1972, however, a newly-constituted 
33/Dayton Board—  rescinded the prior Board's action of December 8,

1971, refused to consider the plan adopted by the Superintendent,
reinstated the Freedom of Enrollment policy and reimposed the

34/segregated attendance zones. S.Ct.A.331-53.— ■ The Board thus
intentionally reinstated systemwide segregation of the public 
schools.

[DISTRICT COURT'S OPINION (A.97-101). The court 
ignored altogether the findings of the Committee of 75, the 
State Department of Education, and HEW, as well as the admissions 
of the board itself, that the Board was responsible —  i.e., had 
caused —  the serious racial segregation of the schools then 
extant. These findings and admissions of public agencies and 
their appointed representatives are highly probative; indeed, in 
the context of this record they are eminently correct. The dis­
trict court clearly erred in not assigning weight to, and in 
refusing to adopt, these findings and conclusions. As a con­
sequence, or perhaps independently, the court also erred in fail­
ing to conclude that the rescission was itself an act of inten­
tional systemwide segregation. The court is clearly mistaken 
in its apparent conclusion that the Board's December 8, 1971 
decisions aimed at curing admitted acts of segregation constituted

33/—  Three new members of the seven-member Board had been elected 
the previous November to take office in January.

34/— By its actions, the new Board made it clear to the Superinten­
dent that he would not be permitted to exercise his independent 
authority over the assignment of pupils (see Ohio Rev. Code § 
3319.01) to implement the desegregation plan. A.425, 929-30.
The statute just cited vests the local Superintendent of 
Schools with the responsibility to "assign the pupils of the 
schools under his supervision to the proper schools and grades," 
except with respect to the assignment of pupils to schools out­
side their school districts of residence, where board approval 
is necessary.

-52a-



an effort to "manufacture" a constitutional violation "by politi­
cal or legal maneuvering." A.IOl.jV The Board’s December 8,
1971 decision to desegregate the system was the considered product 
of determinations that affirmative remedial action was required 
to comply with the Board's constitutional obligations. When the 
new Board voted on January 3, 1972, to rescind this desegregation 
program and reinstate segregation across the board, it did more 
than simply make a different judgment about appropriate educational 
policy. It deliberately turned back the clock in a demonstrably 
segregative fashion. And it did so without offering any evidence 
to show that the uniform conclusions of HEW, the Ohio State Depart­
ment of Education, the Committee of 75, and the 1971 Board and 
Superintendent of Schools, were either precipitous or incorrect.
The rescission thus intentionally reimposed segregation on a 
system-wide basis. It was a purposeful act of racial discrimina­
tion infecting the entire system and again communicating a policy 
of segregation to all of Dayton's citizens. The district court 
thus came somewhat closer to the correct analysis in its 1973 
opinion {A.6). The court's present failure to adopt the factual 
analysis set forth above is clearly erroneous.]

* /— Here the district judge appears to be relying upon his personal 
"views as to the obligations and the legal representation of 
public bodies, and if does not include in my opinion the dis­
cussion with non-representing attorneys..." R.IV. 250 (state­
ment of the court); see also id. at 248-50. These views (con­
trary to those held by the judge in 1972, when he considered 
these matters irrelevant, see id. at 250; A.451-53) have to do 
with the fact that prior to the December 8, 1971, resolutions, 
Superintendent Carle and some of the Board members met with 
several persons on different occasions who were knowledgeable 
about school desegregation in the United States. The judge 
seemed particularly upset that one of these persons was an 
attorney, Louis R. Lucas, who subsequently represented (and 
still does) the plaintiffs in this litigation. Regardless of 
Judge Rubin's personal views, Dr. Carle was clearly correct 
in claiming the right to do as he and the Board members did:
"We had virtually every month or so been consulting with people 
who were involved with desegregation and/or legal aspects of 
desegregation around the country, and this was just one more 
opportunity to expose myself to a person who had a good deal 
of experience in the field." R.IV. 249. There is no rule 
in Ohio or anywhere else prohibiting public officials from 
talking to knowledgeable lawyers, if they are able to find 
any.

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At the time of trial, the Dayton school district
was segregated by race, as it always had been. In the 1971-72
school year (when the complaint was filed), there were 69 schools
in the Dayton district; 49 of them had student enrollments 90% or
more one race (21 black, 28 white). Of the 54,000 pupils enrolled,
42.7% were black; 75.9% of all black students were assigned to
the 21 black schools. S.Ct.A.314 (PX 2 D ) ^ Thus, although the
system was larger, it was basically the same dual system that

36/existed at the time of Brown (see Appendix C, supra).—
Every school which was 90% or more black in 1951-52 

or 1963-64 or 1971-72, and which was still in use at the time of 
trial (1972-73 school year) remained 90% or more black. Of the 
25 white schools in 1972-73 (see note 35, supra), all opened 90% 
or more white and, if open, were 90% or more white in 1971-72, 
1963-64, and 1951-52. S.Ct,A.315 (PX 2E). See also Brinkman I,
503 F.2d at 695.

[DISTRICT COURT'S OPINION (A.69-70). These basic 
facts are not disputed —  not even by the district court.]

35 /— In 1972-73 there were 68 schools, of which 47 were virtually 
one-race (22 black, 25 white). Fully 80% of all classrooms 
were virtually one-race. (Of the 50,000 pupils in the district 
that year, 44.6% were black). S.Ct.A.311 (PX 2A).

36/—  It was also the same one that existed in the 1963-64 school 
year (the first year after Brown for which racial data is avail­
able) . In that year there were 64 schools in the Dayton system, 
of which 57 had student enrollments 90% or more one race (13 
black, 44 white). Of the 57,400 pupils in the district that 
year, 27.8% were black. Yet 79.2% of all the black pupils were 
enrolled in the 13 black schools; and 88.8% of all pupils were 
enrolled in such one-race schools. S.Ct.A.313 (PX 20).

54a-