Dayton Board of Education v. Brinkman Brief for Respondents
Public Court Documents
March 1, 1979
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Brief Collection, LDF Court Filings. Dayton Board of Education v. Brinkman Brief for Respondents, 1979. 0bd33e77-af9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/2f6da85b-d831-4cc5-a129-6ed953ce9284/dayton-board-of-education-v-brinkman-brief-for-respondents. Accessed August 27, 2025.
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I n t h e
Bxvptzmt (tart nf tlj? Hmttb States
O ctober T er m , 1978
No. 78-627
D ayton B oard oe E ducation , et al.,
Petitioners,
v.
Mark Brinkman, et al.,
Respondents.
o n w r i t o e c e r t i o r a r i t o t h e u n i t e d s t a t e s
COURT OE APPEALS EOR TH E SIXTH CIRCUIT
BRIEF FOR RESPONDENTS
R obert A. Murphy
Norman J. Chachkin
Lawyers’ Committee for Civil
Rights Under Law
520 Woodward Building
733 Fifteenth Street, N.W.
Washington, D.C. 20005
R ichard A ustin
Suite 1500
First National Bank Bldg.
Dayton, Ohio 45402
Nathaniel R. Jones
N A A CP General Counsel
1790 Broadway
New York, New York 10019
Paul R. Dimond
O’Brien, Moran and Dimond
320 North Main Street
Ann Arbor, Michigan 48104
W illiam E. Caldwell
Louis R. Lucas
Ratner, Sugarmon & Lucas
525 Commerce Title Building
Memphis, Tennessee 38103
Attorneys for Plaintiffs-Respondents
Mark Brinkman, et al.
TABLE OF CONTENTS
Table of Authorities ........................................................ iii
Opinions Below ....................................................... 1
Counter statement of Questions Presented.................... 2
Counterstatement of the Case......................................... 2
A. Prior Proceedings ............... 2
B. The Dayton School District: General Geog
raphy and Demography ...................... 9
C. The Pre-Brown Dual System................. .... ....... 12
D. Continuation of the Dual System After Brown 32
1. Faculty and Staff Assignments..............—~ 32
2. School Construction, Closing and Site Selec
tion ....................... 38
3. Optional Zones and Attendance Boundaries 43
4. Grade Structure and Reorganization ......... 52
5. Pupil Transfers and Transportation.......... 53
6. The Board’s Rescission of Its Affirmative
Duty ...................... ...........................-..... -........ 59
7. The Dual System at the Time of T ria l....... 65
E. The Remedy ....................... 67
Introduction and Summary of Argument...................... 74
Introduction .................. 74
Summary of Argument ............................................. 83
PAGE
11
Argument ........................................................................... 88
I. At the Time of Trial in This Case the Dayton
Board of Education Was Operating a Segregated
School System Within the Meaning of Brown v.
Board of Education; That System Had Existed
Throughout This Century; It Became Unconstitu
tional Upon Brown’s Correct Interpretation of the
Fourteenth Amendment in 1954; But, Instead of
Being Dismantled, Thereafter It Was Deliberately
Compounded Through the Time of T ria l.............. 88
A. A Dual School System, Within the Prohibition
of the Fourteenth Amendment and Brown v.
Board of Education, May Be Brought Into
Being as Effectively by Local Administrative
Policy and Practice as by State Constitutional
and Statutory Mandate; Such a System Can
not Stand Under the Fourteenth Amendment
PAGE
Even if It Also Violates State L aw .................. 94
B. At the Time of Brown and Ever After Peti
tioners Operated a Dual School System in Fact 99
1. The Board’s Pre-Brown Conduct ............... 99
2. The Nature of the Dual System at the Time
of Brown ........................................................ 108
3. The Post-Brown Era ................................... 113
II. The Remedial Principles of Green and Swann En
title Respondents to a Systemwide “Root and
Branch” Desegregation Remedy Designed to
Eradicate All Vestiges of the Dual System;
Petitioners Have Not Met, and Have Not Even
Attempted to Meet, Their Burden of Demonstrat
ing That This Constitutional Goal Can Be Ful
filled With a Less Extensive Remedy .................. 125
I l l
A. In the Context of an Intentional, Although
Non-Statutory, Dual School System, the “In
cremental Segregative Effect” Inquiry of
PAGE
Dayton I is Governed by Green and Swann .... 126
B. Green and Swann Require a Systemwide
Remedy in This Case......................................... 130
III. Alternatively, Respondents Have Established,
Under Keyes and the Facts Essentially Conceded
by Petitioners, and Unrebutted Prima Facie Case
of Systemwide Intentional Segregation Neces
sitating a Systemwide Rem edy............................. 135
A. Respondents Have Made Out an Unrebutted
Prima Facie Case of Intentional Across-the-
Board Discrimination......................................... 136
B. Respondents Have Also Proved Their Entitle
ment to a Systemwide Desegregation Remedy 139
IV. The Decisions by This Court in the Columbus and
Dayton School Cases Are Critical to Meaningful
Constitutional Review of Remaining Dual School
Systems .........................................-........................... 140
C o n c l u s io n ............................................... .......................................... 144
T able op A u thorities
Cases:
Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973)
(en banc) .................................................. -................... 00
Adiches v. S. H. Kress <& Co., 398 U.S. 144 (1970) .....95, 96
Alexander v. Holmes County Bd. of Educ:, 396 U.S.
19 (1969) 75
93
American Tobacco Co. v. United- States, 147 F.2d 93
(6th Cir. 1944) ..............................................................
Arthur v. Nyquist, 573 F.2d 134 (2d Cir.), cert, denied,
47 U.S.L.W. 3224 (Oct. 2, 1978) ............ .................... 141
Austin Independent School Dist. v. United States, 429
U.S. 990 (1976) ................................................. .......... 7
Baumgartner v. United States, 322 U.S. 665 (1944) .... 31
Berenyi v. Immigration Service, 385 U.S. 630 (1967) .. 31
Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251
(1946) ................ .................... ................ ...................... 129
Board of Education v. State, 45 Ohio St. 555, 16 N.E.
373 (1888) .............. ...... ..................... ........ ....... .......... 12
Board of Education of School District of City of Day-
ton v. State ex rel. Reese, 114 Ohio St., 188, 151 N.E.
39 (1926) ............ ............................ ...... .......................14,17
Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973)
(en banc) ............................... ..... ......... .......... ........... 52
Bradley v. School Bd. of Richmond, 382 U.S. 103 (1965) 75
Brinkman v. Gilligan, 503 F.2d 684 (6th Cir. 1974) ..passim
Brinkman v. Gilligan, 518 F.2d 853, cert, denied sub
nom., 423 U.S. 1000 (1975) .....................................1, 6, 67
Brinkman v. Gilligan, 539 F.2d 1084 (6th Cir. 1976),
vacated sub nom., 433 U.S. 406 (1977) ............ 2,6,71,72
Brinkman v. Gilligan, 583 F.2d 243 (6th Cir. 1978),
cert, granted, 47 U.S.L.W. 3463 (8 January 1979) ..passim
Brown v. Board of Educ., 347 U.S. 483 (1954) .........passim
Broivn v. Board of Educ., 349 U.S. 294 (1955) .........passim
Brown v. Weinberger, 417 F. Supp. 1215 (D.D.C. 1976) 60
Calhoun v. Latimer, 377 U.S. 263 (1964) ...................... 75
Carter v. West Feliciana Parish School Bd., 396 U.S.
226 (1969) 75
V
Garter v. West Feliciana Parish School Bd., 396 U.S.
290 (1970) ........................................................... -....... 75
City of Kenosha v. Bruno, 412 U.S. 507 (1973) ............... 3
Clemons v. Board of Educ. of Hillsboro, 228 F.2d 853
(6th Cir. 1956) .................................................. -........ 83, 98
Continental Ore Co. v. Union Carbide <& Carbon Corp.,
370 U.S. 690 (1962) ................. ......... ...............-.......92,93
Cooper v. Aaron, 358 U.S. 1 (1958) ............................. 75,97
PAGE
Dayton Bd. of Educ. v. Brinkman,
(1977) ............. ...............................- ....
Davis v. Board of School Comm’rs, 402
433 U.S. 406
........... .........passim
U.S. 33 (1971) 81
Evans v. Buchanan, 555 F.2d 373 (3d Cir.), cert, denied,
434 U.S. 880 (1977); 582 F.2d 750 (3d Cir. 1978),
cert, pending ........ .......... .....— ................ .................. 141
Ex parte Virginia, 100 U.S. 339 (1880) .......... 83, 92, 94, 97
Franks v. Bowan Transportation Co., 424, 747 (1976) .... 129
Gaston County v. United States, 395 U.S. 285 (1969) ~ 116
Gomillion v. Lightfoot, 364 U.S. 339 (1960) .................. 48
Goss v. Board of Educ. of Knoxville, 373 U.S. 683
(1963) ................ .......... ................................................. 75
Green v. County School Bd., 391 U.S. 430 (1968) ....passim
Griffin v. County School Bd. of Prince Edward County,
377 U.S. 218 (1964) _____ ___ _________ -.................. 75
Hart v. Community School Board, 512 F.2d 37 (2d Cir.
1975) ......... ....... ................-.... -................................. 140-141
Higgins v. Board of Educ., 508 F.2d 779 (6th Cir. 1974) 141
Hills v. Gautreaux, 425 U.S. 284 (1976) .............. ........... 140
Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S.
278 (1913) .......................... ......................... -.................... 83,95
VI
Hunter v. Erickson, 393 U.S. 385 (1969) ...................... 123
Hutto v. Finney, 437 U.S. 678 (1978) ........................... 140
Johnson v. San Francisco Unified School Hist., 500 F.2d
349 (9th Cir. 1974) .............. ....................................... 141
Kansas City Star Co. v. United States, 240 F.2d 643
(8th Cir. 1950) .............................................................. 93
Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972), cert, de
nied, 413 U.S. 919 (1973) .........................................36,141
Kelsey v. Weinberger, 498 F.2d 701 (D.C. Cir. 1974) .... 60
Keyes v. School Dist. No. 1, 413 U.S. 189 (1973) .......passim
Keyes v. School Dist. No. 1, 521 F.2d 465 (10th Cir.
1975), cert, denied sub nom., 423 U.S. 1066 (1976) .... 141
Lewis v. Pennington, 400 F.2d 806 (6th Cir. 1968) ....... 129
Louisiana v. United States, 380 U.S. 145 (1965) .......... 135
McDaniel v. Barresi, 402 U.S. 39 (1971) ...................... 116
Milliken v. Bradley, 433 U.S. 267 (1977) ..................112,139
Monroe v. Board of Gomm’rs of Jackson, 391 U.S. 450
(1968) ............................................................................. 75
Monroe v. Pape, 365 U.S. 167 (1961) ..................... 83,95,96
Montague & Co. v. Lowry, 193 U.S. 38 (1904) .............. 93
Mooney v. Holohan, 294 U.S. 103 (1935) ...................... 95
Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 1974), cert.
denied, 421 U.S. 963 (1975) ........................................... 140
Mt. Healthy City School Dist. Bd. of Educ. v. Doyle,
429 U.S. 274 (1977) .................................... 129
NAACP v. Lansing Bd. of Educ., 559 F.2d 1042 ( 6th
Cir. 1977), cert, denied, 434 U.S. 1065 (1978) ......... 141
Neal v. Delaware, 103 U.S. 370 (1881) ....................... 95
North Carolina State Bd. of Educ. v. Swcmn, 402 U.S.
43 (1971) ................................................................... 81,116
PAGE
V l l
Northcross v. Board of Educ. of Memphis, 397 U.S. 232
(1970) ............................ ................................................ 75
Oliver v. Michigan State Bd. of Educ., 508 F.2d 178
(6th Cir. 1974), cert, denied, 421 U.S. 963 (1975) .... 141
Pasadena City School Board of Education v. Spangler,
427 U.S. 424 (1976) ............................ ....... ........ .....72,133
Plessy v. Ferguson, 163 U.S. 537 (1896) .............. ....... 99
Raney v. Board of Educ. of Gould School Dist., 391
U.S. 443 (1968) .......... .................................................. 75
Raymond v. Chicago Union Traction Co., 207 U.S. 20
(1907) ................................................ ............................ 95
Beitman v. Mulkey, 387 U.S. 369 (1967) ..................66,123
Rogers v. Paul, 382 U.S. 198 (1965) ............................. 75
Screws v. United States, 325 U.S. 91 (1945) ........ ..... 88, 95
Singleton v. Jackson Municipal Separate School Dist.,
419 F.2d 1211 (5th Cir. 1969) (en bcmc), rev’d on
other grounds sub nom., 396 U.S. 290 (1970) .......... 37
Smith v. Allwright, 321 U.S. 649 (1944) ___ _____ __ 97
Standard Oil Co. v. United States, 221 U.S. 1 (1911) 93,108
Story Parchman Paper Co. v. Paterson Paper Co., 282
U.S. 555 (1931) ......................................... ................. 129
Swarm v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S.
1 (1971) ............... ........ .................................... ...... ._passim
Swann v. Charlott e-Mecklenburg Bd. of Educ., 300 F.
Supp. 1358 and 1381 (W.D.N.C. 1969); 306 F. Supp.
1291 and 1299 (W.D.X.C. 1969) ................................. 77
Terry y. Adams, 345 U.S. 461 (1953) ............................. 97
United States v. Board of School Comm/rs, 332 F. Supp.
655 (S.D. Ind. 1971) ..................................... ............... 17
PAGE
vm
United States v. Board of School Comm’rs, 474 F.2d
81 (7th Cir.), cert, denied, 413 TT.S. 920 (1973) ....41,141
United States v. Classic, 313 U.S. 299 (1941) .............. 95
United States v. Columbus Municipal Separate School
Dist., 558 F.2d 228 (5th Cir. 1977), cert, denied, 434
U.S. 1013 (1978) ............................... 141
United States v. E. I. Dupont DeNemours <& Co., 353
U.S. 586 (1957) .......... .................. .............................. 31
United States v. General Motors Corp., 384 U.S. 127
(1966) ...................................................................... 31
United States v. Jefferson County Bd. of Educ., 372
F.2d 836 (5th Cir. 1966), aff’d en banc, 380 F.2d 385
(5th Cir. 1967), cert, denied, 389 U.S. 840 (1967) .... 77
United States v. John J. Felin & Co., 334 U.S. 624
(1948) .............................................................. 31
United States v. Montgomery County Bd. of Educa
tion, 395 U.S. 225 (1969) ....................................... 35, 37,75
United States v. Oregon State Med. Soc., 343 U.S. 326
(1952) ............................................................................. 92
United States v. School District of Omaha, 521 F.2d
520 (8th Cir.), cert, denied, 423 U.S. 946 (1975) ....51-52
United States v. School Dist. of Omaha, 565 F.2d 127
(8th Cir.), cert, denied, 434 U.S. 1064 (1977) ........... 141
United States v. Scotland Neck City Bd. of Educ., 407
U.S. 484 (1972) ................ 86,112
United States v. Texas Educ. Agency, 457 F.2d 848
(5th Cir. 1972) (en banc) .................. 52
United States v. Texas Educ. Agency, 564 F.2d 162
and 579 F.2d 910 (5th Cir. 1978), cert, pending..... 141
United States v. United States Gypsum Co., 333 U.S.
364 (1948) ..................................................................... 31
United States v. Yellow Cab Co., 338 U.S. 338 (1949) .. 31
PAGE
IX
Village of Arlington Heights v. Metropolitan Homing
Dev. Corp., 429 U.S. 252 (1977) .......... .............. 84,115,129
Virginia v. Rives, 100 U.S. 313 (1880) ................... ...... 95
Washington v. Davis, 426 U.S. 229 (1976) .................... 84,123
Wright v. Council of the City of Emporia, 407 U.S. 451
(1972) ................................................................................. 86,112
Yick Wo v. Hopkins, 117 U.S. 356 (1886) .................... 83,95
Zenith Radio Corp. v. Hazeltine Research, Inc., 395
U.S. 100 (1969) ................................................................ 31,129
Statutes and Rules:
42 U.S.C. §1981 .............................................................. 3, 4, 7, 91
42 U.S.C. §1983 ............................................................ 95-96
42 U.S.C. §1983-1988 ......................................................3, 4, 7, 91
85 Ohio L aws 3 4 ....................................................................... 12
Ohio E ev. Code §3313.48 ........................................................ 114
Ohio R ev. Code §3319.01.............. 64
F ed. R. Civ. P. 52(a) ................................................. ............. 31
F ed. R. Civ. P. 53 ..................................................................... 69
Other Authorities:
Cong. Globe, 42d Cong., 1st Sess. (1871) ........................ 96
U.S. Civil R ights Commission, Desegregation of the
Nation’s P ublic Schools: A Status R eport (Feb.
1979) .............................. 143
Ohio A. G. Opinion No. 6810 (9 July 1956) ............62, 83, 97
PAGE
In t h e
(Emtrt nf tb? Htti&b States
O ctober T e r m , 1978
D ayton B oard o f E ducation , et al.,
Petitioners,
V.
M ark B r in k m a n , et al.,
Respondents.
ON W RIT OF CERTIORARI TO TH E UNITED STATES
COURT OF APPEALS FOR TH E SIXTH CIRCUIT
BRIEF FOR RESPONDENTS
Opinions Below
The district court’s initial liability ruling of 7 February
1973, now reported at 446 F. Supp. 1254-65 as an appendix
to the court’s latest ruling, is reprinted in the appendix to
the petition for certiorari (“Pet. App.” ) at pp. la-25a. The
court’s first remedy order was entered 13 July 1973. Pet.
App. 26a-31a. The first opinion of the court of appeals is
reported as Brinkman v. Gilligan, 503 F.2d 684 (6th Cir.
1974) (Brinkman I). Pet. App. 32a-69a.
On remand from Brinkman I, the district court entered
orders on 7 January 1975 (Pet. App. 70a-72a) and 10
March 1975. Pet. App. 73a-88a. The court of appeals opin
ion in Brinkman 11 is reported at 518 F.2d 583 (6th Cir.),
cert, denied sub nom., 423 U.S. 1000 (1975). Pet. App. 89-
98a.
2
On remand from Brinkman 11, the district court entered
remedial orders and judgments on 29 December 1975 (Pet.
App. 99a-109a), 23 March 1976 (Pet. App. 110a-13a), 25
March 1976 (Pet. App. 114a-16a) and 14 May 1976. Pet.
App. 117a. The court of appeals’ opinion in Brinkman 111
is reported at 539 F.2d 1084 (6th Cir. 1976). Pet. App.
118a-23a. This Court’s opinion, vacating and remanding,
is reported as Dayton Bd. of Educ. v. Brinkman, 433 TT.S.
406 (1977) (Dayton I). Pet. App. 124-41a.
On remand from Dayton 1, the district court filed an
opinion dismissing the complaint on 15 December 1977,
which is reported at 446 P. Supp. 1232 (S.D. Ohio). Pet.
App. 142a-88a. The court of appeals’ opinion in Brink-
man IV is reported at 583 F.2d 243 (6th Cir. 1978). Pet.
App. 189a-217a. This Court granted certiorari on 8 Janu
ary 1979.
Counterstatement of Questions Presented
Whether, as the court of appeals held below, the Dayton
Board of Education was operating a basically dual school
system at the time of trial, necessitating a systemwide de
segregation remedy?
Counterstatemenet of the Case
A. Prior Proceedings.
This suit commenced on 17 April 1972 with the filing of
a complaint by black parents and their school children1
1 In their petition for certiorari (pp. 20-21) and in their brief
(pp. 54-56), petitioners make a frivolous attack on plaintiffs’ stand
ing to sue. Despite the fact that this issue had been resolved against
petitioners by the district court and by the court of appeals in
3
seeking to disestablish the racially dual system of public
schooling in Dayton, Ohio, pursuant to the Thirteenth and
Fourteenth Amendments and their contemporaneous im
plementing legislation, 42 U.S.C. §§1981 and 1983-1988.
Complaint, filfl, 12. Defendants included the Dayton Board
of Education, its individual members and Superintendent
of Schools and the State Board of Education and respon
sible state officials. Complaint, HU4-10. Following exten
sive admissions by all defendants (App. 53-78),2 the trial
judge conducted an evidentiary hearing from 13 Novem
ber to 1 December 1972, limited to whether the acts of the
Dayton Board “have created segregated educational facili
ties in violation of the Equal Protection Clause.” Pet. App.
Brinkman I, it was resurrected by petitioners before this Court in
Dayton I. We responded by demonstrating that individual respon
dents have a real present-day stake in this litigation, and that the
case has properly proceeded as a class action. See Brief for Re
spondents at 95-101 in Dayton Bd. of Educ. v. Brinkman, No. 76-
539. Although petitioners’ standing argument was a jurisdictional
one, which the Court would have been obliged to look into even on
its own motion, cf. City of Kenosha v. Bruno, 412 TJ.S. 507 (1973),
the Court’s opinion in Dayton I elected not to address the standing
argument and proceeded on the basis that jurisdiction was estab
lished. Petitioners’ standing contention was thus necessarily re
solved against them in Dayton I ; and, on remand therefrom, they
did not renew the argument either in the district court or in the
court of appeals. They are therefore foreclosed from relitigating
that issue in this Court. In all events, the issue must be resolved
in respondents’ favor, for the reasons set forth in our brief in
Dayton I, cited above.
2 “ App.” references are to the three-volume appendix filed herein.
When the exhibit volume is referred to, the page number is fol
lowed by “Ex.” Trial exhibits not reproduced in the exhibit volume
of the appendix are designated “ P X ” for plaintiffs’ exhibits and
“D X ” for defendants’ exhibits. References to the original tran
script are designated as follows: “ R.I.” for the twenty-volume,
consecutively-paginated transcript of the violation hearing in No
vember and December 1972; “R.II.” for the February 1975 re
medial hearings; “R.TII.” for the remedial hearings in December
1975 and March 1976; and “ R.IV.” for the November 1977 hearing
on remand from this Court.
4
2a; also Pet. App. 34a, 143a, 188a.3 The plaintiffs intro
duced substantial additional evidence showing that the
Dayton public schools had been riven by a long and contin
uous history of intentional system-wide segregation lead
ing to the creation and maintenance of a basically dual
system from long before Brown through the time of trial;
the defendants countered by arguing that any discrimina
tion had only minor effect and, in any event, had been
dissipated by the passage of time. The district court is
sued an opinion on 7 February 1973 finding “ racially im
balanced schools, optional attendance zones, and recent
Board action [i.e., the 3 January 1972 rescission of a
system-wide program of desegregation], which are cumu
latively in violation of the Equal Protection Clause.” Pet.
App. 12a.4 By its 13 July 1973 supplemental order on
remedy, the district court approved a “ plan” eliminating
optional zones and required a “free choice” election pro
cess for in-coming high school students, based on its read
3 Plaintiffs filed the action in the Columbus rather than the Day-
ton division of the district court because of the joint and inde
pendent allegations against the State level agencies and officials,
all located in Columbus. The district court denied defendants’
motions to dismiss for improper venue or, in the alternative, for
transfer to the Dayton division on these grounds. E.g., Pet. App.
33a. Yet the trial judge then deferred hearing on the claims against
the State defendants; and, to date, these claims, as well as those
against all defendants arising under the Thirteenth Amendment
and the applicable federal civil rights statutes, 42 IJ.S.C. §§1981
and 1983-1988, have never been heard. (At the beginning of the
November 1972 trial, Judge Rubin noted that “ [t]his is a limited
hearing on this case and it is intended to be a preliminary inquiry.”
App. 1.)
4 The district court determined that the case was a “ class action
by the parents of black children attending schools operated by the
defendant Dayton (Ohio) Board of Education.” Pet. App. la.
The court also credited plaintiffs’ pre-Brown evidence of official
racial discrimination as the policy of the Dayton Board (Pet. App.
2a-4a), but it did not relate that conduct to the evidence of post-
Brown discrimination nor otherwise attach any legal significance
to it. E.g., Pet. App. 3a.
5
ing of Mr. Justice Powell’s dissenting opinion in Keyes v.
School Dist. No. 1, 413 U.S. 189, 226-227 (1973). Pet. App.
29a-31a.
The Dayton Board appealed, claiming that there was no
continuing constitutional violation; and plaintiffs cross-
appealed, contending that the district court had erred in
failing to make additional violation findings relating to al
most all aspects of the operation of the Dayton public
schools and that the remedy ordered failed to overcome the
pervasive effect of the proven violations, including the
deliberate perpetuation of a basically dual system from
the time of Brown through the time of trial. In its 20
August 1974 opinion in Brinkman 1, 503 F.2d 684 (Pet.
App. 32a), the court of appeals discussed at somewhat
greater length than had the district court both the pre-
Brown evidence of intentional discrimination (Pet. App.
39a-40a) amounting to a “basically dual system” (Pet. App.
56a) and the “ serious questions” (Pet. App. 66a) as to
whether the Board’s conduct following Brown relating, for
example, to staff assignment, new school construction and
reorganization, should have been included within the
“cumulative violation” of the Equal Protection Clause
found by the district court. Pet. App. 56a-67a. But the
court of appeals reserved ruling on these issues, rather
than expressly supplement or reverse the constitutional
violation findings of the district court as requested by
plaintiffs in one prong of their cross-appeal. Pet, App. 56a,
67a; also Pet. App. 194a. Thus, the court of appeals only
affirmed the three-part “ cumulative violation” (Pet, App.
67a) but, nevertheless, reversed the trial judge’s remedy
and remanded for development of a plan of broader scope.
Pet. App. 68a-69a.
Following additional remedial proceedings on remand
in the district court (Pet. App. 70a, 73a), the court of ap
6
peals in its 24 June 1975 opinion in Brinkman II directed
promulgation and implementation of “a system-wide plan
for the 1976-77 school year” without reaching the reserved
issues. 518 F.2d 853, 857 (Pet. App. 96a). On remand, fol
lowing the appointment of an expert (murdered in the
midst of his desegregation planning in the Federal Build
ing in Dayton), the appointment of a master, and eviden
tiary hearing (Pet. App. 99a-106a), the district court
approved a system-wide plan pursuant to orders of 23
March and 14 May 1976. Pet. App. 110a, 117a. On appeal
by the Dayton Board, the court of appeals affirmed, again
without reaching the reserved questions. 539 F.2d 1084
(Pet. App. 118a). Following denials of stays by the court
of appeals and Circuit Justice Stewart, the system-wide
plan was implemented in September 1976 and has success
fully operated to this day without disruption.
On certiorari, this Court reviewed the proceedings and
opinions below. Dayton Board of Education v. Brinkman,
433 U.S. 406 (1977) (hereafter “Dayton I ” ). Noting the
ambiguity of the district court’s opinion (433 U.S. at 412-
14), the Court evaluated each aspect of the three-part
“ cumulative violation” holding and determined that, at
most, any constitutional violation related solely to “high
school districting,” i.e., “ optional attendance zones for . . .
three Dayton high schools.” 433 U.S. at 413. The Court
admonished the court of appeals for failing to review—
i.e., to affirm, to supplement or to reverse (in contrast to “ to
discuss” )—the limited and ambiguous violation findings of
the district court in view of the extensive record evidence
of intentional segregation concerning all aspects of the
historic and continuing operation of the Dayton public
schools. 433 U.S. at 416-18. Left only with the limited
findings of the district court, this Court held that the court
of appeals erred in imposing a system-wide plan for viola
7
tions of patently lesser scope, i.e., optional zones affecting
only three high schools. 433 U.S. at 417-18. In view of the
confusion at various stages in the courts below and the
substantial claim that the extensive record revealed addi
tional violations, the Court therefore remanded for thor
ough judicial review and detailed findings but left the sys
tem-wide plan in effect pending further proceedings. 433
U.S. at 418-21.
Pursuant to this Court’s mandate, the court of appeals
remanded the case to the district court for further proceed
ings. 561 F.2d 652. The district court conducted a brief
evidentiary hearing, 1-4 November 1977, again limited to
the intentionally discriminatory conduct of the Dayton
Board. Nevertheless, the district court dismissed the plain
tiffs’ complaint by opinion and judgment issued 15 Decem
ber 1977. Pet. App. 142a. The opinion is based solely upon
finding no continuing violation of the Equal Protection
Clause (Pet. App. 188a) and makes no determination con
cerning the plaintiffs’ claims against the State defendants
and claims arising under the Thirteenth Amendment and
federal civil rights acts (42 U.S.C. §§1981, 1983-1988)
against all defendants. See note 1, supra. The opinion be
gins by 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.”
Pet. App. 143a. Still guided by Mr. Justice Powell’s mi
nority view (quoting the separate opinion in Austin Inde
pendent School Dist. v. United States, 429 U.S. 990, 995
and n.7 (1976); see Pet. App. 146a-47a), the district court
applied a restrictive view (e . g Pet. App. 153a, 157a-60a,
162a-69a, 171a, 180a) of this Court’s decision in Dayton I
with respect to causation and effect. Pet. App. 146a-47a;
also Pet. App. 149a, 154a, 159a, 171a. The district court
then proceeded to resolve all disputed facts concerning in
8
tent against the plaintiffs and further determined that the
numerous admitted or uncontroverted intentionally segre
gative and discriminatory policies and practices of the
Dayton Board were isolated, attenuated, or otherwise had
no current “ incremental segregative effect.” E.g., Pet, App.
149a, 154a, 159a, 171a.
Plaintiffs promptly appealed. On 5 January 1978, the
district court denied plaintiffs’ motion to stay the judg
ment dismissing the case pending appeal; on the same day
the Dayton Board voted to reinstate pupil segregation be
ginning with the second semester. On 16 January 1978,
the court of appeals (a) granted plaintiffs’ motion to stay
the termination of the plan pending appeal and (b) ex
pedited the appeal.
The court of appeals, pursuant to the standards for ap
pellate review articulated by this Court in Dayton 1, 413
U.S. at 416-18, reviewed in its opinion (for the first time)
the trial judge’s findings concerning equal-protection viola
tions against the bulk of the evidence of intentional segre
gation. The appellate court concluded that the district
judge’s findings were clearly erroneous and his conclusions
were plainly wrong in all material respects. E.g., Pet. App.
194a and n.10, 196a, 199a, 202a, 206a, 210a, 211a, 212a. The
court below found that the record evidence “demonstrates
conclusively” (Pet. App. 194a) the following:
(1) The Dayton Board, through explicit policies and
covert practices amounting a system-wide program of
segregation, operated a basically dual system at the
time of Brown. Pet, App. 194a-205a.
(2) The Dayton Board refused at all times there
after to take any action to dismantle this dual system.
Pet. App. 205a-06a, 208a-09a, 216a.
9
(3) The Dayton Board opted instead to perpetuate
and to build upon the continuing dual system through
the time of trial by a variety of intentionally segrega
tive policies and practices, including racially motivated
faculty and staff assignment, optional zones, school
construction, and reorganizations of grade structure.
Pet. App. 206a, 209a-14a.
(4) The Dayton Board failed to show in what re
spect the pattern of one-race schools was not caused
by the system-wide impact of this longstanding, sys
tematic program of intentional segregation (Pet. App.
209a); instead, the direct evidence of the Dayton
Board’s intentionally segregative conduct following
Brown showed that it had perpetuated and com
pounded the basically dual system through the time of
trial through a variety of segregative practices of sys
temwide nature and impact. Pet. App. 216a-17a.
As a result, the court of appeals reversed the decision of
the district court on constitutional grounds and continued
the systemwide desegregation plan wdiich has been in oper
ation since September 1976. Pet. App. 217a.
Following denials of the Dayton Board’s applications
for a stay of judgment by the court of appeals, Circuit
Justice Stewart and Associate Justice Rehnquist, this
Court granted certiorari on 8 January 1979.
B. The Dayton School District: General Geography
and Demography.
As reflected in the report (App. 34-35) 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 south
western part of the state of Ohio, approximately 50 miles
10
due north, of Cincinnati. The Dayton school district is not
coterminous with the city; some parts of the school dis
trict include portions of three surrounding 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., Pet. App. 48a-51a; App. 1-5-Ex. (PX
2A-2E), 212-16-Ex. (PX 100A-100E), 321-22-Ex. (DX CU).
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 south
west parts of the city, primarily on the west side of the
Miami River and south of the east-west Wolf Creek, both
of which have long been effectively crossed at convenient
intervals, both literally and by school policies and prac
tices. See, e.g., maps in pocket part of appendix exhibit
volume. The area of black containment was originally
quite small and grew from 1913 through the time of trial
reciprocally with school board policies and practices de
signed to separate black pupils and staff from white. See
pp. 12-67, infra. The black population originally was con
tained 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, e.g.,
App. 306-09-Ex. (DX BY) (census tract maps). The dis
trict court made the following finding as to the causes
of such residential segregation (Pet. App. 147a-48a)
(record citations and footnote omitted):
11
Since shortly after the 1913 flood, Dayton’s black pop
ulation has centered almost exclusively on the West
Side of Dayton. . . . Since that time this population
has moved steadily north and west. . . . Without ques
tion the prime factor in this concentration has been
housing discrimination, both in the private and public
sector. Until recently, realtors avoided showing black
people houses which were located in predominantly
white neighborhoods. . . . In the 1940’s, public housing
was strictly segregated according to race. . . . This
segregated housing pattern has had a concomitant im
pact upon the composition of the Dayton public schools.
See also, e.g., App. 80-83, 220-22-Ex. (PX 1433), 223-33-
Ex. (PX 143J), E.I. 189-210, PX 143E-M) (public housing
and relation to school discrimination); App. 143-48, E.I.
656, 663-65, PX 153-153B (Sloane, PHA, VA, FHA, and
relation to school discrimination); E.I. 881-84, 897-925,
952-53, App. 176-79 (Taeuber, residential and school segre
gation and discrimination); App. 518-22, E.I. 782-93, 2084-
2106 (offers of proof), PX 144 and 144A and E.I. 758-61
(local customs of housing and school segregation).6
6 Prom such testimony, evidence and offers of proof, it is manifest
that the trial court’s quoted finding—that in Dayton both official
racial discrimination and the dominant white community’s custom
and practice of racial exclusion (compared to other factors like
choice, economies, birth rates or in-migration) have been primary
causal elements in the marked historic and continuing residential
segregation— is indisputable. (One of the issues still in much
dispute in this case, however, is whether school discrimination
contributed to the prevailing local custom and practice of almost
complete residential segregation; whether school policies and
practices were also motivated, at least in some significant part, by
the racial discrimination prevailing in other aspects of the local
community; and whether school discrimination and segregation
operated reciprocally with such residential discrimination and
segregation to create and perpetuate a dual school system. This is
(Footnote continued on next page)
12
Geographically and topographically there have been and
are no major obstacles to complete desegregation of the
Dayton school district. Pet. App. 121a. The Master deter
mined that where pupil transportation is necessary, the
maximum travel time would be about twenty minutes. App.
39. 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!,] an issue in
many cities!,] moot here.” App. 438.
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, 16 N.E. 373 (1888). Although the Ohio courts had
occasion, some forty years later, specifically to remind
Dayton school authorities of this legal prohibition of sep
arate schools for black and white children, the laudable
goals of the 1887 legislation were not attained in Dayton 6
6 (Continued)
one of the issues that is addressed in the remainder of this brief.
It is sufficient for present purposes to note that the district court’s
limited findings do not answer the issue: for, even while crediting
evidence such as that cited above, it totally failed to consider these
same witnesses’ experience with the two-way, causally interwoven,
and reciprocal relationship between school discrimination and
segregation and housing discrimination and segregation in the
Dayton community. As we demonstrate in the Statement and
Argument hereafter, the evidence conclusively demonstrates that
segregative intent was a primary motivation in the Dayton Board’s
creation, perpetuation, and compounding of a dual school system,
pursuant both to explicit segregation policies and covert segrega
tion practices, that did in fact proximately cause or materially
contribute to the systematic pattern of one-race schooling extant
at the time of trial.)
13
until implementation of the desegregation plan now in
effect at the start of the 1976-77 school year.
Many of the facts which follow in this section were ad
mitted by all Dayton Board defendants in their responses
to plaintiffs’ pre-trial Requests for Admissions. See App.
53-78. These facts were also the subject of extensive and
largely uncontroverted evidence at trial.
The facts of racial segregation in the Dayton public
schools, as revealed by the record before the Court, begin
in 1912. In that year Louise Troy, a black teacher, taught
an all-black class just inside the rear door of the Garfield
school; all other classes in this brick building were occu
pied by white pupils and white teachers. App. 137. 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; and soon a two-room
portable was added to the black “annex,” making six black
classrooms and six black teachers located in the shadow
of the white Garfield school. App. 137-38. A four-room
“permanent” structure was later substituted for the two-
room portable (about 1921 or 1922), and eight black
teachers were thus assigned to the eight all-black class
rooms in the Garfield annex. App. 139. See also App. 53,
64, 73 (admission no. 1).
When Mrs. Ella Lowrey, a black teacher for several dec
ades in the Dayton system, performed her practice-teach
ing requirement with the black students in the “annex” at
Garfield in 1917, the four all-black classrooms contained 50
students each. App. 138. When the permanent structure
replaced the two-room portable in the early 1920’s, Mrs.
Lowrey taught a sixth-grade class of 62 black children,
before which she had taught a fourth-grade class of 42
14
black children while her white counterpart in the main
“white” building had a class of only 20 white children.
R.I. 624-25; App. 139. In Mrs. Lowrey’s 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.” App. 143. [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. App. 93.]
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. The Reese children were ordered by school au
thorities 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 man
damus to compel Dayton school authorities to admit chil
dren of the Negro race to public schools on equal terms
with white children. R.I. 526-29; App. 115-16. In a deci
sion entered of record on 24 December 1925, the Court of
Appeals of Ohio denied a demurrer to the mandamus peti
tion. This decision was affirmed by the Ohio Supreme
Court and Dayton school authorities were specifically re
minded 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). See App. 53, 64-65,
73 (admission no. 2).
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
15
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. App. 139-
40; see also App. 186.
Following the 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 build
ing only if they asserted themselves and specifically so re
quested; otherwise, they “were assigned to the black
teachers in the black annex and the black classes.” App.
140-41.
During this time, there apparently were some other black
children also in “mixed” schools. For example, Mrs. Phyllis
Greer, who had direct contact with the Dayton public
schools over a fifty-year span as student, teacher, principal
and central administrator in charge of “ equal educational
opportunity” review (App. 85-86), attended “mixed”
classes at Roosevelt high school for three years prior to
1933. App. 89-90. But even when they were allowed to
attend so-called “mixed” schools, these black children were
subjected to humiliating discriminatory experiences within
school. At Roosevelt, for example, black children were not
allowed to go into the swimming pool and blacks had sep
arate showers while Mrs. Greer was there (App. 89); while
Robert Reese was at Roosevelt (after leaving Garfield),
there were racially separate locker rooms, and blacks were
allowed to use the swimming pool but not on the same day
as whites. App. 116. At Steele High School, black chil
dren were not allowed to rise the pool at all during this
period. App. 423-24. Even in the “mixed” classrooms
16
black children could not escape the official determination
that they were inferior beings because of the color of their
skin. Mrs. Greer vividly remembers, 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.”
App. 90. And she remembers with equal clarity that, while
in the second grade at Weaver, she “tried out for a Christ
mas 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.” App. 88-89.
Also, throughout this period, and until 1954, black chil
dren from a mixed orphanage, Shawen Acres, were as
signed across town to the black classes in the black Gar
field school (and also to the blacks-only Dunbar secondary
school, discussed infra), while the white orphan children
were assigned to nearby white classes and white schools.
App. 87-88, 523-24, 525. This practice was terminated
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.
App. 184-Ex. (PX 28); App. 55, 67, 74 (admission no. 7
(cl))-
The black pupil population continued to grow at Gar
field, and another black teacher was hired and assigned
with an all-black class placed at the rear door of the brick
building. App. 141. In 1932 or 1933, Mrs. Lowrey {see p.
13, supra), was also placed in the brick building, again
with an all-black class “ in a little cubby-hole upstairs,”
making ten black teachers with ten black classes at Gar
field. App. 142. Finally, around 1935-36, after many of
the white children had transferred out of Garfield, school
17
authorities transferred all the remaining white teachers
and pupils in the brick building to other schools and as
signed an all-black faculty, principal and student body to
Garfield. App. 94, 142-43, 234-Ex. (PX 150 I ) ; PX 155
(faculty directories); see also App. 54, 65, 73 (admission
no. 2).
As the black pupil population was growing rather rap
idly during the 1930’s, not even the conversion of Garfield
into a blacks-only school was sufficient to accommodate
the growth. So, with the state court decision in Reese
then some nine years old, the Dayton Board also 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 Sep
tember of 1935, the Board transferred all white teachers
and pupils to other schools, and Willard became another
school for black teachers and black pupils only. App. 93,
234-Ex. (PX 150 I ) ; PX 155 (faculty directories); App.
54-55, 66, 74 (admission no. 6).
At about this same time, in 1933, the new Dunbar school,
with grades 7-9, opened with an all-black staff and an all
black student body. App. 234-Ex. (PX 150 I). 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
P. Supp. 655, 665 (S.D. Ind. 1971)] that I had left.” R.I.
1378; App. 530-33, 550-52. The Board resolution opening
Dunbar stated that grades 7 and 8 were to be discontinued
at Willard and Garfield (these two black elementary schools
18
served grades 7 and 8, whereas the system prior to 1940
was otherwise generally organized on a K-6, 7-9, 10-12
grade-strnctnre basis, App. 387), and that “attendance at
the Dunbar School be optional for all junior high students
for all 7th, 8th, and 9th grade levels in the City.” App.
191, 259-Ex. (PX 161A). Of course, this meant only all
black junior high students, since Dunbar had an all-black
staff who were not permitted by Board policy to teach
white children. App. 93, 191, 297; PX 155 (faculty direc
tories).
Within a very short time, grades 10, 11 and 12 were
added to the blacks-only Dunbar school. Then in 1942,
just two years after the Dayton school authorities had re
organized all schools to a K-8, 9-12 grade structure, the
Board again assigned the seventh and eighth grades from
the all-black Willard and Garfield schools to the all-black
Dunbar school. App. 191, 260-Ex. (PX 161B). Black
children from both the far northwest and northeast sec
tions of the school district traveled across town past many
all-white schools to the Dunbar school. App. 97-98, 211,
214, 296-97. Many white children throughout 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 who became “behavior problems” were
transferred to Dunbar. App. 91. And other black chil
dren from various elementary schools were either assigned,
channeled, or encouraged to attend the black Dunbar high
school. App. 124-25, 214, 250-51.6 The most effective means
6 Prior to 1940, no high schools had attendance boundaries. App.
393-94. The black Dunbar school was located in close proximity
to the Roosevelt high school which, although it always had space,
apparently 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
19
of forcing black children to attend the blacks-only Dunbar,
of course, was the psychological one of branding them un
suited for association with white children. See pp. 15-16,
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
swimming pools at Roosevelt: “I wanted to be free. I
felt more at home at Dunbar than I did at Roosevelt. . . .
You couldn’t segregate me at Dunbar.” App. 116-17. Simi
larly, 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.” App.
90. (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.
App. 90, 123, 133-34; R.I. 570.) See also App. 55, 67, 74
(admission no. 7).
Even these segregative devices were not sufficient to
contain the growing black 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 transferred by bus to other
schools, to which all-white staffs were assigned. By Sep
tember 1945 the Board assigned a black principal and an
all-black faculty with an all-black student population to
addition, the Parker school had been a city-wide single-grade
school which served ninth graders. App. 408-09.) In 1940 at
tendance 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 p. 45, infra.
20
the Wogaman school. App. 90-91, 123-24, 234-Ex. (PX 150
I ) ; PX 155 (faculty directories); App. 54, 66, 74 (admis
sion no. 4).
Still other official devices were used to keep blacks segre
gated in the public schools. One such device, resorted to
regularly during the 1940’s and early 1950’s, was to cooper
ate with and supplement the discriminatory activities of
Dayton public housing authorities. Throughout this pe
riod, racially-designated public housing projects were con
structed and expanded in Dayton, subject to Board
approval.7 App. 80-83, 220-222-Ex. (PX 143 B). In 1942, the
Board transferred the black students residing in the black
De-Soto Bass public housing project to the Wogaman
7 App. 143-45. The district court had earlier refused to admit
any proof related to public housing and the school authorities
interaction therewith, including even the leasing of space and
assignment of one-race classes and staffs to rooms in the racially
designated projects, “until [plaintiffs] can establish that the
School Board participated in some fashion with the original
determination that this would be a white or black project
[. WJhatever else the Board might have done, they have taken
the area as they found it.” App. 79. Although plaintiffs then
produced evidence to meet the trial judge’s major premise (and
other evidence to show how the Board also intentionally ad
vantaged itself of the explicitly dual public housing administra
tion), the district court’s only findings concerning the hotly-dis
puted segregative interrelationships between the school and public
housing authorities are contained in these words (Pet. App.
147a-48a) :
In the 1940’s public housing was strictly segregated according
to race. (T .R .l 182-186). This segregated housing pattern
[public and private] has had a concomitant impact upon the
composition of the Dayton public schools (T.R.2-380, 382-
Robert Rice).
The trial court made no findings concerning the Board’s conduct
in relation to public housing. In contrast, the court of appeals
found from the uncontroverted evidence that the school authorities
“operated one race classrooms in officially one race housing pro
jects which the district court found were ‘strictly segregated
according to race,’ ” Pet. App. 201a and n.35.
21
school (App. 260-Ex. (PX 161 B )), and a later overflow to
the all-black Willard school, rather than other schools that
were equally close (App. 92), 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. App. 260-Ex. (PX 161B). Finally, in the late 1940’s
and early 1950’s, the Board leased space in white and black
public housing projects for classroom purposes, and as
signed students and teachers on a uniracial basis to the
leased space so as to mirror the racial composition of the
public housing projects. App. 82-83, 223-33-Ex. (PX 143 J).
By the 1951-52 school year (the last year prior to 1963-
64 for which enrollment data by race are available), 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, on the west side of Dayton:
Willard, Wogaman, Garfield and Dunbar. These schools
had all-black faculties and (with one exception, an assign
ment made that school year) no black teachers taught in
any other schools. App. 10-Ex. (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 populations
greater than 10% (ranging from 16% to 68%). App. 216-
Ex. (PX 100E). The schools with any racial mix, however,
were also 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 composi
tion. Of the 6,628 black pupils in the system, 3,602 (or
54%) attended the four all-black schools with all-black
22
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 pp. 25-27,
infra). Thus, 73% of all black students attended schools
already or soon to be designated “black.” App. 2-Ex. (PX
2B), 216-Ex. (PX 100E).8
8 The District Court’s Opinion (Pet. App. 147a-49a, 151a-52a,
153a, 158a-59a, 169a-71a). Virtually all of the subsidiary facts
set forth to this point in this section are not in dispute. Many of
them are the subject of findings by the district court (although
they are peppered throughout its opinion as though they were
each unrelated to the other) and while others (e.g., the Reese litiga
tion, 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 court’s opinion does not conflict with these undisputed
facts. Thus, the district court finds that “public housing was
strictly segregated according to race” (Pet. App. 147a-48a) (cf.
note 7, supra) ; that the Board segregated many black children
and discriminated against the few others who attended predom
inantly white schools in accordance with “an inexcusable history
of mistreatment of black students” (Pet. App. 149a) ; that “until
1951 the Board’s policy of hiring and assigning faculty was
purposefully segregative” (Pet. App. 153); that the discriminatory
transfer of black children from Shawen Acres Orphanage to the
blacks-only Garfield school was “arguably. . . a purposeful segre
gative act” (Pet. App. 159a); and that “ the first Dunbar High
School was intended to be and was in fact a black high school.”
Pet. App. 170a. The district court, however, refused to determine
whether these “incidents of purposeful segregation” amounted to
a systemwide policy of intentional segregation or otherwise
rendered the system dual at any time.
The Court of Appeals’ Opinion (Pet. App. 195a-96a, 197a, 198a-
201a, 203a). The court of appeals made extensive specific findings
substantially in accord with the subsidiary facts heretofore
described in text. In only two instances did the court of appeals
find it necessary to question a subsidiary district court finding.
First, with respect to the trial court’s statement that the policy
of assigning the black Shawen Acres Orphanage children to the
blacks-only schools rather than to nearby white schools was
“ arguably. . . a purposeful segregative act” (Pet. App. 159a), the
court of appeals concluded that “ [t]o the extent that this finding
implies that this practice was not purposefully segregative, it
is clearly erroneous.” Pet. App. 199a (emphasis in original.)
23
In 1951 and 1952 the Dayton Board confronted its last
pre-Brown opportunities 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 discriminatory public schooling for gen
erations to come. What the Board did involved a series of
interlocking segregative maneuvers, which substantially
expanded the separation of black from white children and
staff, primarily through implementation of a new and overt
faculty segregation policy, the use of “ optional attendance
zones,” and the construction of an additional all-black
school.
Prior to this time, as previously noted, the Board would
not allow black teachers to teach white children under any
circumstances (App. 186); black teachers were assigned
only to all-black schools, and white teachers were assigned
only to white and “mixed” schools. In the 1951-52 school
year, in purported response to black community pressure,
the Board announced a “new,” but equally demeaning,
faculty segregation policy (App. 182-Ex. (PX 21)):
Second, the court of appeals credited the Board’s admissions and
the uncontradicted documentary and testimonial evidence showing
that the Board “ pursued an overt policy of faculty segregation. . . .
Defendants admitted that prior to 1951 the board forbade the
assignment of black teachers to white or mixed classrooms ‘pursuant,
to an explicit segregation policy.’ ” Pet. App. 195a and n .ll. In
contrast, the trial court made the clearly erroneous finding that
“ [tjhere is no direct evidence that black teachers were forbidden
to teach white children at any school.” Pet. App. 151a. Although
the Sixth Circuit also supplemented the findings concerning many
significant facts (virtually all of them uncontradicted) which had
been ignored by the trial court, these two are the only instances
relating to the 1912-1952 period in which the appellate court
arrived at a subsidiary factual conclusion which was in conflict
with a district court finding. The court of appeals, however, also
inquired whether this pattern of intentionally segregative conduct
amounted to an official Board policy of segregation and rendered
the Dayton system dual. See notes 9, 11 and 13, infra, and 4, 5 and
7, supra.
24
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 com
munities are ready to accept negro [sic] teachers.
This faculty policy, incredibly, was contained in a statement
of the Superintendent disavowing the existence of segre
gated schools in the Dayton district.
In 1954 the Superintendent made a further “integration
statement,” which included the following (App. 184-Ex. (PX
28)):
About two years ago we announced a policy of at
tempting to introduce white teachers in our schools
having negro [sic] population. We have not been too
successful 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 teaehers in negro [sic]
schools is more difficult than the problem of introducing
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 will be seen (see pp. 32-37, infra), this express faculty
segregation policy continued for almost two more decades
25
as a primary device for identifying schools as intended for
blacks or whites.9
In the school year following the announcement of the
“new” faculty segregation policy, the Board remained under
pressure, as its records reflect, from “ [t]he resistance of
some parents to sending their children to school in their dis
trict because it is an all negro [sic] school.” App. 209-Ex.
(PX 75). In response, the Board constructed a new all
black school (Miami Chapel) located near the all-black
W ogam an school and adjacent to the black DeSoto Bass
public housing project; Miami Chapel opened in 1953 with
9 The District Court’s Opinion (Pet. App. 151a-53a). The district
court correctly concluded that “until 1951 the Board’s policy of
hiring and assigning faculty was purposefully segregative.” Pet.
App. 153a. 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 1960’s.” Id. at 152a. 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 hall
mark of the Dayton-style dual system. (The court’s continuing
errors, with respect to post-Brown faculty-assignment practices,
are treated at pp. 36-37, infra.)
The Court of Appeals’ Opinion (Pet. App. 195a-96a, 197a, 202a-
03a). The Sixth Circuit characterized the Board’s faculty-assign
ment policy as “ an overt policy of faculty segregation” (Pet. App.
195a), “an explicit segregation policy” (id.), “ purposeful segrega
tion of faculty by race” (id. at 197a), and “deliberate policy of
faculty segregation.” Id. at 202a-03a. And “contrary to the find
ing of the district court, . . . the Board ‘effectively continued in
practice the racial assignment of faculty through the 1970-71
school year.’ To the extent that the finding of the district court
is contrary to the conclusion of this court, it is clearly erroneous.”
Id. at 196a. Moreover, the court of appeals recognized and held
that the discriminatory faculty-assignment policy “was inextric
ably tied to racially motivated student assignment practices” (id.
at 197a; see also id. at 211a), and that the district court erred in
failing to attribute any legal significance to the faculty policy
“which, at the time of Brown I , made it possible to identify a
‘black school’ in the Dayton system without reference to the racial
composition of pupils.” Id. at 203a.
26
an all-black student body and an 85% black faculty. App.
11-Ex. (PX 4). The Board altered attendance boundaries
so that some of the children in the four blacks-only schools
were reassigned to the four surrounding schools with the
next highest black pupil populations; and, through either
attendance boundary alterations or the creation of optional
zones, it reassigned white students from these mixed
schools to the next ring of whiter schools. R.I. 1456 ; App.
274-75, 283-92, 345-46; PX 123.
Thus, the boundaries of the black Garfield and Wogaman
schools were retracted, thereby assigning substantial num
bers of black children 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). App. 216-Ex. (PX 100E). As Jackson and Edison
were re-zoned to include more black students, their outer
boundaries were simultaneously contracted through the
creation of “optional zones” (Jackson/Westwood and Edi
son/Jefferson) so that white residential areas were effec
tively detached from Jackson and Edison and, for all prac
tical 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 schools for blacks only, so that whites could
continue to transfer out of these all-black schools. R.I. 1456;
App. 274-75, 283-92. (Prior to 1952 whites had been freely
allowed to transfer to “whiter” schools, but such transfers
were abolished in 1952. App. 288, 183-Ex. (PX 28).) Op
tional zones were thus substituted for the prior segregative
27
free-transfer practice10 to continue the Board’s policy of
protecting whites from associating on an equal basis with
black students and staff.
During this period the Board also created another op
tional attendance zone affecting Jackson; this zone was in
stituted in an area of the Jackson zone containing the Veter
an’s Administration Hospital, and allowed whites to attend
Residence Park, which at that time was all-white. App.
271-73, 216-Ex. (PX 100E). (This option is discussed
further at p. 47, infra.) Additionally, the Board during
this period created an optional zone between Roosevelt
(31.5% black) and Colonel White (100% white). App. 275-
76, 216-Ex. (PX 100E). The immediate and long-range
racial significance of this option are discussed in greater de
tail at pp. 45-46, infra.
Finally, the Board began to transfer black teachers to the
formerly “mixed” schools in transition (but none to the
all-white schools) thereby confirming their identification as
schools for blacks rather than whites in the traditional fash
ion. App. 286, 6-10-Ex. (PX 3).11
10 The Superintendent’s 1954 statement ( see p. 24, supra)
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.” App. 183-Ex. (P X 28). Thus, the purpose of free
transfers was accomplished by a new device, optional zones, which
served the same end of allowing whites to avoid attendance at
black or substantially black schools.
11 The District Court’s Opinion (Pet. App. 155a-57a). 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.” Pet. App. 155a.
These conclusions are clearly erroneous, arrived at only through
2 8
the most selective and argumentative reading of the record imagin
able. 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 (because of his understanding that
another superintendent in 1952 and 1954 characterized it as an
“experiment in integration” in response to the black community’s
continuing protest of school segregation (App. 468-70)), 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
selectively relies on five pages of the transcript (App. 468-70) and
ignores altogether the very next two pages (App. 471) in which
Dr. Carle placed his view in context by emphasizing 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”
(App. 471); “ The action that was taken there was that nothing
was done to eliminate the segregation that already existed in the
three schools whose boundaries were changed” (id.) ; 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 in
volving schools that remain all black” (App. 472).
These points are unassailable, but by ignoring them the district
court had just begun to err. These basic errors were compounded
three-fold: First, the court ignored further testimony from Dr.
Carle pointing out that a central part of the West-Side reorganiza
tion was its use of supportive segregative devices such as assigning
black teachers to the schools adjacent to the four blacks-only
schools (App. 492), accompanied by the creation of optional at
tendance zones (App. 492, 494).
Second, the court concluded 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” (App. 493) (state
ment of the court). The court’s view seems to be that the only harm
in segregation occurs at the time of initial imposition, and that
subsequent generations have nothing to complain about— a view
that is foreclosed by Brown.
Third, the court refused to allow Dr. Carle to answer the
question, “ In light of those two factors [assignment of black
teachers and ereation 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 next black schools in Dayton” (App.
494). The court refused to allow the testimony (App. 494-95).
Thus, the court- relies on the testimony of a witness to support a
11 (C o n t in u e d )
29
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 con
clusions about the West-Side reorganization scheme. The court
cited the testimony of plaintiffs’ expert, Dr. Gordon Foster, for
the proposition that the West-Side reorganization 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.” Pet. App. 155a, citing App. 292. 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 pp. 25-27, supra),
the large numbers and variety of segregative devices utilized by
the Dayton Board in the West-Side reorganization. At App. 292
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 school
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 App. 292-94, 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” (App. 293-94),
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 segergation and a community undergoing
racial change. App. 293. But what apparently peeved the district
judge the most was Dr. Foster’s evaluation of the ineffectiveness
of even such limited alternatives (which the Board, of course,
eschewed in its segregative reorganization) in the context of a
dual school system (App. 292 and 293):
The problem, as I see it in this type of situation, is essentially
one of diddling around piecemeal with desegregation instead
of attacking the problem wholesale and making clear that you
are desegregating the entire system.
* * *
I think the only secure solution and the only safe solution is
to dissestablish a dual structure in the entire system so that
11 (C o n t in u e d )
30
At the time of this Court’s May 17, 1954 decision in
Brown v. Board of Education, therefore, Dayton school
officials were operating a racially dual system of public
education.11 12 This segregation had not been imposed by
11 (Continued)
whites [who may wish to] flee . . . meet the same situation
wherever they go.
Viewing Dr. Foster’s testimony as a whole, therefore, the district
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 segregative; it is also
a gross misrepresentation, both of Dr. Foster’s opinion and the
uncontroverted, objective evidence.
The Court of Appeals Opinion. The court of appeals found it
unnecessary to specifically address the details of the West Side
reorganization. Rather, the Sixth Circuit subsumed most of its
disagreement with the district court’s purported findings on this
score within its conclusion that at the time of Brown 1 “ defendants
were intentionally operating a dual school system in violation of
the Equal Protection Clause of the Fourteenth Amendment. Our
holding is based upon substantial evidence, much of which is un
disputed. The finding of the district court to the contrary is
clearly erroneous. . . .” Pet. App. 194a (footnote omitted). The
appellate court did, however, specifically address the district court’s
findings that the use of optional zones—which had their race-
oriented origins in the West Side reorganization (theretofore
racial separation in “mixed” residential areas had been accom
plished through a “free transfer” policy)—had neither racial
purpose nor racial effect, and held that these findings were clearly
erroneous (Pet. App. 209a-10a); the court of appeals also reversed
as clearly erroneous the district court’s failure to accord, real
significance to the Board’s overtly unnamed but intentionally
segregative school construction policy (e . g Miami Chapel) which,
with the coordinate and explicitly race-based faculty-assignment
policy,^ demonstrably earmarked the West Side schools for the
education of black children and the remainder of the system for
whites. Pet. App. 195a-96a, 197a, 202a-03a, 211a.
12 At the remand hearing following Dayton 1, plaintiffs offered
the testimony of a local historian on the facts of school discrimina
tion prior to Brown in an attempt to persuade the trial court of
these undeniable facts. Instead, Judge Rubin prohibited the wit
ness from testifying about the creation of a dual school system
prior to 1954. App. 518-19. In its subsequent opinion, the district
31
court then not only failed to find such a dual system but also
misused the obviously startled witness’ very limited testimony
following the court’s surprising ruling. Compare Pet. App. 148a
and 170a-71a with App. 518-22. Petitioners also seek to make
more out of this testimony than objective analysis will support.
See Pet. Br. 30.
We note also that whenever petitioners have the need either to
assail the credibility of one of plaintiffs’ witnesses, especially
those who also happen to be present or former managing agents of
the Board, see, e.g., Pet. Br. 35 (referring to two such witnesses as
“ impassioned advocates for the plaintiffs” ) and 28 (characterizing
the Superintendent of Schools at the time of trial as plaintiffs’
“ chief witness” ), or to suggest that this case turns on credibility
choices which are shielded from appellate review ( e.g., “ [mjueh
of the testimony was raw opinion testimony of witnesses who had
obvious ideological motivations to secure a specific result” (Pet.
Br. 39)), they play fast and loose with both the nature of the
testimony and the bases of the district court’s findings. The
district court made no finding, and petitioners can cite to none,
which turns on such credibility choices. We note, moreover, that
the logic of petitioners’ approach would yield the conclusion that
all of the witnesses called by the Board were ideological segrega
tionists. Such a rule would be of considerable value to respondents,
to the extent we are required to prove subjective racial malevolence.
Petitioners are thus mistaken in their assertion (Pet. Br. 38-39)
that the court of appeals has abused the “clearly erroneous”
standard of appellate review set out in F ed . R . Civ. P. 52(a). Cf.,
e.g., Zenith Radio Corp. v. Hazeltime Research, Inc., 395 U.S. 100,
122 n.18 (1969); United States v. Yellow Cal Co., 338 U.S. 338
(1949). Much of the testimony here, especially about pre-Brown
events but also about the post-Brown era, consisted of unchallenged
eyewitness accounts, and most of the remaining decisive facts
appear in documentary form. Cf., e.g., United States v. General
Motors Corp., 384 U.S. 127, 142 n.16 (1966); United States v. E. I.
DuPont DeNemours & Co., 353 U.S. 586, 598 n.28 (1957). The
factual questions presented by this case are a mixture of law and
fact, or they are questions of ultimate fact of “public law” and
constitutional magnitude. Cf., e.g., Berenyi v. Immigration
Service, 385 U.S. 630, 636 (1967) ; United States v. John J. Felin &
Co., 334 U.S. 624, 639-40 (1948) (Frankfurter, J.) ; Baumgartner
v. United States, 322 U.S. 665, 671 (Frankfurter, J.). In the final
analysis, we are confident that a review of the whole case will
cause this Court, as it did the court of appeals, “ on the entire
evidence [to be] left with the definite and firm conviction that a
mistake has been committed [by the district court].” United States
v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
12 (C o n t in u e d )
32
state law: indeed, it was operated in open defiance of state
law.13
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 pol
icy announced in 1951 (see pp. 23-25, supra) at least through
the 1970-71 school year. App. 449-50, 453-54, 490-92, 536,
559-68. 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. App. 14-Ex. (PX 5D).
Prior to the 1968-69 school year, the Board maintained
teacher applications on a racially separate basis. Once
13 The District Court’s Opinion. The district court did not
specifically speak to this concluding point, hut apparently would
have reached the clearly erroneous conclusion that the Board was
not operating a basically dual system at the time of Brown. (In
an earlier order of 10 March 1975, entered upon the remand from
the court of appeals in Brinkman I, 503 F.2d 684 (Pet. App. 32a),
the district court ambiguously opined: “We do not deal with a
mandated dual school system; we do not deal with actions taken on
a school-by-school basis. We do deal with a system that has in the
past permitted segregative practices to exist.” Pet. App. 77a
(footnote omitted). See also Pet. App. 75a ( “At no time, how
ever, did defendant maintain a dual system of education.” )
The Court of Appeals’ Opinion (Pet. App. 194a-205a). The
court of appeals specifically held that “at the time of Brown I,
defendants were intentionally operating a dual school system in
violation of the Equal Protection Clause of the fourteenth amend
ment” (Pet. App. 194a); “defendants’ segregative practices at the
time of Brown I infected the entire Dayton public school system.”
Id. at 205a. “ The finding of the district court to the contrary is
elearly erroneous.” Id. at 194a.
33
teachers were hired, their records were kept on various
racial bases which were used to segregate teachers and
schools. Substitute 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. App. 94-97, 102-06, 109-11, 117-21, 158-60,
161-63, 164-67, 6-10-Ex. (PX 3). Principals, assistant prin
cipals, counselors, coaches and other clerical and classified
personnel were assigned on an even more strictly segre
gated basis. App. 246,193-Ex. (PX 42); E.I. 814-17, 831-33.
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 assign
ments mirrored the racial composition of student bodies:
the Board assigned faculty members to new schools and
additions so as to reflect the pupil racial composition at
opening, thereby identifying them, as “black” or “white”
in accordance with the Board’s policy (App. 301-02, 381,
11-12-Ex. 17 (PX 4) ) ; and the Board enforced the racial
identity of those schools already all-black or all-white by
assigning virtually one-race staffs. 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 ra
cial compositions. App. 13-Ex. (PX 5A). 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 in
creasing numbers of black teachers only to these schools.
App. 109-14, 178-79, 6-10-Ex. (PX 3). As articulated by
Mrs. Greer, a long-time student, teacher and administra
tor in the system (see p. 15, supra), the “assignment of
staff to go along with the neighborhood change was the
34
kind of thing that gave the impression of the schools be
ing designed to be black, because black staff increased as
black student bodies increased.” App. 98. As Board mem
ber 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. App.
536.
White teachers similarly were assigned in dispropor
tionate numbers to the predominantly white schools. Thus,
for example, in the 1968-69 school year, the Board con
tinued to assign new teachers and make transfers according
to the following segregation practice (App. 13-Ex. (PX
):
Schools with Schools with
predominantly predominantly
white student black student
enrollment enrollment
Black Teachers 40 95
White Teachers 223 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 teach
ers to black schools and white teachers to white schools.”
App. 245.
It was therefore possible at any time during this period
to identify a “black” school or a “white” school (and a
school in “ transition” ) 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 re
spect to race were in compliance with Title VI of the Civil
Eights Act of 1964. By letter of 17 March 1969, the acting
35
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 [com
pliance] review establishes that your district pursues a
policy of racially motivated assignment of teachers and
other professional staff.” App. 109-Ex. (PX 11 A). Fol
lowing this determination, the Dayton Board agreed with
HEW to 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” (App.
110-Ex. (PX 11F)), in accordance 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. App. 111-Ex. Neverthe
less, 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 assign
ments. [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 less dra
matically than prior to the 1971-72 school year, is demon
strated by a table set out in Brinkman I, 503 F. 2d at 698
(Pet. App. 57a). Moreover, classified personnel (e.g., sec
retaries, clerks, custodians and cafeteria workers) con
tinued to he assigned on a racially segregated basis App
246a.]
No non-racial explanation for the Board’s long history
of assigning faculty and staff on a racial basis is possible.
School officials, of course, had absolute control over the
placement of their employees; consequently, the Board’s
historic race-oriented assignments of faculty members in
tentionally earmarked schools as “black” or “white.” App.
36
300-01, 449, 461-62, Nor can the impact of this manifesta
tion 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 faculties and staffs.
One of plaintiffs’ expert witnesses, Dr. Robert L. Green,
Dean of the Urban College and Professor of Educational
Psychology at Michigan State University, described how
such faculty-assignment practice “ facilitates the pattern
of segregation” (App. 114) in these terms (App. 107-08):
When there has been historical practice of placing
black teachers in schools specified as being essentially
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 re
mains 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 essen
tially uni-racial or predominantly black or predomi
nantly white.
See also App. 300-02, 536-38, 559-60. Such racial assign
ment of staff is also “ strong evidence that racial consider
ations have been permitted to influence the determination
of school policies and practices. . . . ” Kelly v. Guinn, 456
F.2d 100, 107 (9th Cir. 1972), cert, denied, 413 U.S. 919
(1973); see Keyes v. School Dist. No. 1, 413 U.S. 189, 202
(1973); Swann v. Charlotte-Mechlenburg Bd. of Educ., 402
U.S. 1, 18 (1971).14
14 The District Court’s Opinion (Pet. App. 151a-54a). 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
37
14 (Continued)
schools . . . , did continue to appear after 1960,” but the court
argued that “ the [1951-52] policy of dynamic gradualism was
substantially implemented during the 1950’s and 1960’s.” Pet.
App. 152a. This latter conclusion is not clearly erroneous only if
it is read as recognizing that the Board’s emphasis was on the
gradualism, in the words of its 1951-52 policy (see p. 24, 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 in text are not disputable, and the district court’s effort to
set a tone different from those facts is clearly erroneous. The
district judge should have adhered to what he observed at trial:
“we have abundant testimony the School Board did assign black
teachers to black schools and white teachers to white schools. Let
me say I am aware of that. May I ask that we now abandon that
for evidentiary purposes.” App. 302.
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
in the State of Ohio.” Pet. App. 152a. This argument is specious.
In school systems in almost every state which had explicit segrega
tion 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-diseriminatory
hiring; in others, it is the legacy of an explicitly dual system of
hiring and assigning teachers on a racial basis, as in Dayton.
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.” Pet. App. 153a. But see pp. 32-35, supra. (Also
wrong is the idea that HEW ’s intervention in 1969 was “ edgfing]
the legal limit” (Pet. App. 153a) : first, HEW ’s action was clearly
within the bounds of settled precedent, United States v. Mont
gomery County Bd. of Educ., supra, except that most districts
at that time were allowed only one year, rather than the two HEW
allowed Dayton, to totally eliminate de jure faculty segregation
practices, Singleton v. Jackson Municipal Separate School Dist.,
419 F.2d 1211, 1217-18 (5th Cir.) (en banc), rev’d on other
grounds sub nom. Carter v. West Feliciana Parish School Bd., 396
TJ.S. 290 (1970) (as former Superintendent Carle pointed out,
HEW acquiesced in the Board’s desire to delay complete faculty
38
2. School Construction, Closing and Site Selection.
The Board’s school-construction, school-closing and site-
selection policies and practices over the past two decades
did nothing to alleviate, or even to cease taking segregative 14
14 (Continued)
desegregation over a two-year period, App. 492) ; second, the
court’s view is not credible to anyone, including the courts,
familiar with HEW ’s previously adjudicated unwillingness to
fulfill its Title VI obligations, see p. 60, infra.)
Finally, the court committed a fundamental error of both logic
and fact in failing to recognize the obvious relevance of the Board’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, the court’s argument that faculty
segregation had no impact because in each instance “ the school
was already identifiable as being black because of the racial
composition of the students” (Pet. App. 153a), is factually untrue.
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; the same is
true of the racial assignments of staff to all of the new one-race
schools and additions. See pp. 39-41, 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. The court
compounded its factual error by failing to give faculty-segregation
practices their due weight of “hav[ing] the clear effect of earmark
ing schools according to their racial composition.” Keyes, 413 U.S.
at 202. See, e.g., pp. 32-36, supra. This “ clear effect” may not be
quantifiable with mathematical precision, but it is substantial in
any realistic sense.
The Court of Appeals’ Opinion (Pet. App. 196a, 206a-07a). The
court of appeals reiterated its Brinkman I finding that the Board
“ effectively continued in practice the racial assignment of faculty
through the 1970-71 school year,” and held that “ [t]he finding of
the district court to the contrary is clearly erroneous.” Pet. App.
206a (footnotes omitted). See also note 9, supra. The court of
appeals further held (Pet. App. 206a) :
The district court also erred in failing to attribute the correct
legal significance to the persistently discriminatory faculty
assignment practices as a component of the Board’s perpetua
tion of the dual system extant at the time of Brown I.
See also Pet. App. 207a, 211a.
39
advantage of, the condition of state-imposed segregation
extant at the time of Brown. To the contrary, the Board’s
policies and practices in these areas intentionally 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. App. 258-63, 304, 556-59. Of
24 new schools constructed between 1950 and the time of
trial, 22 opened 90% or more black or 90% or more white.
App. 258, 11-Ex. (PX 4). During the same expansion pe
riod, additions to existing facilities followed the same pat
tern. Seventy-eight of some 87 additions of regular class
room 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. App. 304. The race-based nature
of these practices is made crystal clear by the coordinate
assignment, pursuant to the Board’s “policy” (see App.
381), of professional staffs to these schools and additions
tailored to their intended racial identities. App. 301-02, 378-
79, S.Ct.A.316-381, 460-62, 11-12-Ex. (PX 4).
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 exist
ing racial patterns and compacting them.” App. 347. Mr.
Bagwell, the Dayton Board’s chief rebuttal witness with
respect to school construction, admitted that “ in effect
then, when you . . . put an addition to a school, that as
far as that space is concerned, you determine the boun
daries and they are coextensive with the original boun
40
daries of the school. . . . So that if a school is already 100
percent black and yon are making an addition to that
school, you in effect have determined the boundaries to be
. . . creating a hundred percent black school unit.” App.
381. The same is true with respect to the virtually all-
white or all-black primary units. App. 269-70, 555-56. And
the placement of portable classrooms also operated in a
pattern that reflected the basic dual structure of the sys
tem. App. 266-68.
An example will illustrate the similar racial underpin
nings of the more complex process of locating and con
structing new schools. 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
children from the Willard and GaiHeld attendance areas
were simply reassigned 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. App. 265, 296-97, 523-24, 526, 531-34,
556-58, 5-Ex. (PX 2E), 11-Ex. (PX 4), 218-Ex. (PX 130C),
6-Ex. (PX 3). 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.
As discussed at pp. 49-50, infra, immediately prior to
these racial events, the Board had additional opportunity
to locate three other new high schools and draw attendance
41
lines that would work toward dismantling the basically
dual pupil assignment pattern at the high school level.
Instead, in conjunction with optional zones, the drawing
of attendance lines and the coordinate assignment of
faculty, the Board also converted Roosevelt into a blacks-
only school and opened two new virtually all-white high
schools and a “mixed” school.15
15 As Dr. Foster testified, this systematic pattern of one-race
construction for new schools and additions “has managed to lock-in
and compact both the school population and the residential popula
tion in the inner city, and at the same time to promote housing
segregation and school segregation in the far-flung suburbs” of
the Dayton school district. App. 260. See also App. 269-70',
where Dr. Foster describes the pattern of constructing one-race
schools and additions in Dayton as basically that of “ locked-in
black schools,” with white schools “ in the area of the white
suburban expansions which are farthest” from the black areas:
I think the [Supreme] Court’s language for this, which even
lay people can understand, was something like, as I remember,
a loaded game board. . . .
It is precisely this “ loaded game board” (see Swann, 402 U.S.
at 28; id. at 20-21) that petitioners overlook when they cite (Pet.
Br. 35-37) the testimony of these witnesses as showing that every
one agrees that the Board had no alternative to its segregative
site-selection practices, and that residential segregation would have
caused the same result no matter what the Board did short of
busing pupils for desegregative purposes. But the very heavy
hand the Board played in facilitating, influencing and incorporat
ing the basic dual foundation, resulting in “ locked-in” one-race
schools, precludes the Board from arguing that “ the congruency
of housing and school boundaries [was] inevitable.” United States
v. Board of School Comm’rs, 474 F.2d 81, 86 (7th Cir.), cert,
denied, 413 TJ.S. 920 (1973). The Board’s segregative role in this
regard is illustrated by the testimony of one of the witnesses relied
upon by the Board. This witness observed that when the new
Dunbar high school opened in 1962, “ there were no houses there
[in the vicinity of the new school] then, very few. . . . The school
was there and the people went where the school was.” App. 528.
“And then a lot of housing developments came in there later and
it all became more and more segregated because Dunbar High
School was there.” App. 526. Moreover, feasible non-segregative
alternatives repeatedly presented themselves, but the Board per
sistently closed its eyes to such options. See, e.g., pp. 49-51, infra;
see also Argument, pp. 114-19, infra.
42
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. App. 263-65, 197-
206-Ex. (PX 56). Such closings would have presented the
Board with substantial opportunities to accomplish sig
nificant savings in costs, and at the same time accomplish
substantial desegregation. (There would he substantial
cost savings with respect to such closings, even if sub
stantial pupil transportation were required to accomplish
school desegregation conveniently and safely for the chil
dren. According to the Board, the average yearly per 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. App. 61, 72, 77 (ad
missions 33 & 33A ).) But rather than closing selected 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.16
i* The District Court’s Opinion (Pet. App. 169a-71a, 173a-80a).
The district court acknowledged the segregative pattern of the
Board’s school eonstruction/site-seleetion practices (Pet. App.
173a), which from an administrative perspective “approached the
level of haphazard in some instances.” Id. 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.” Id. at 180a. With respect to the question of
segregative 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 con
verting schools for black students and black teachers only, by not
recognizing how much the post-Brown patterns of faculty assign
ments to new schools bespoke unmitigated segregative intent, and
43
3. O ptional Z ones and Attendance B oundaries.
We have already shown how the Dayton Board utilized
optional zones and attendance boundary manipulation as
further by avoiding the obvious facts, such as the construction of
the new Dunbar (and the interrelated closing of Willard and
Garfield, and conversion of the old Dunbar into MeFarlane), which
are inexplicable except in terms of race. In this more complete
context (a context with which the court studiously refused to
deal), the finding of no segregative intent is clearly erroneous.
Even more astounding is the court’s conclusion that none of these
practices had segregative effect. This conclusion is contrary to
the court’s own subsidiary findings (e.g., id. at 173a), and con
trary 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.
The Court of Appeals’ Opinion (Pet. App. 207a, 210a-12a). The
court of appeals held that the trial court’s conclusion that the
Board’s construction, site-selection and related practices were not
infected with segregative intent was clearly erroneous. Pet. App.
211a. The appellate court noted the near-total segregative pattern
of new school construction and additions to existing schools,
“ [cjoupled with . . . the coordinate racial assignment of profes
sional staffs to . . . these schools and additions on the basis of the
racial composition of the pupils served by the schools” (id. at
210a), which “ unmistakeably increased or maintained racial
isolation.” Id. at 211a. The court of appeals concluded, moreover,
that “ the post-Brown I practices of racially motivated faculty
assignments to new schools bespeaks a concomitant segregative
intent in the location of new schools and additions.” Id. The court
also found clearly erroneous the trial court’s finding that these
practices also had no segregative effect (id. at 211a-12a); the
appeals court correctly concluded that “ defendants pursued a
policy of containment through school construction and site selec
tion practices.” Id. at 212a.
With respect to the circumstances surrounding the construction
of the new Dunbar high school and conversion of the old Dunbar
into MeFarlane elementary (whose attendance zone was drawn to
take in most of the students from the blacks-only Willard and
Garfield schools, which were simultaneously closed), the court of
appeals arrived at the unassailably “reasonable presumption that
the simultaneous assignment of both a predominantly black faculty
and student body at these schools was the product of segregative
intent and an effort to perpetuate the dual system extant at the
time of Brown I.” Id. at 207a.
44
segregative devices in connection with the 1952 West-Side
reorganizations (see pp. 25-27, 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. App. 257. 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. App. 250, 320-21.
Optional zones have existed throughout the Dayton school
district and apparently have been created whenever the
Board is under community pressure which favors or dis
favors attendance at a particular school. App. 280-81, SOS
OS, 401-03. 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 (App. 321); and, as the district court found in its
first opinion, optional zones “destroy or dilute” the so-
called “neighborhood school concept.” Pet. App. 12a-13a.
In many instances in Dayton optional zones were cre
ated for clear racial reasons, as, for example, in the West-
Side reorganization. From 1950 to the time of trial, op
tional zones existed, at one time or another, between pairs
of schools of substantially disproportionate racial compo
sitions in some fifteen instances directly effecting segre
gation at some 21 schools. The West-Side reorganization
in 1952 (see p. 26, supra) involved six optional areas with
racial implications: Willard-Irving, Jackson-Westwood,
Willard-Whittier, Miami Chapel-Whittier, Wogaman-High-
view, and Edison-Jefferson. App. 274-75, 283-92. Other
optional zones with demonstrable racial significance at
45
some time during their existence include the following:
Three optional zones between Roosevelt and the combina
tion Fairview-White; two optional zones between Residence
Park and Adams; and optional zones between Westwood
and Gardendale, Colonel White and Kiser, Fairview and
Roth, Irving and Emerson, Jefferson and Brown, and
Jefferson and Cornell Heights. App. 274-82, 323-24; PX
47-51 (maps and overlays).
In addition, at the high school level, Dunbar remained
in effect a systemwide optional zone for blacks only
through 1962 when it was converted into an all-black ele
mentary school (App. 296-97) (see p. 40, supra) ; and
Patterson Co-op remained a city-wide and, through the
1967 school year, virtually all-white optional attendance
zone. The city-wide Patterson Co-op operated in a more
subtle segregative fashion than did Dunbar. In 1951-52,
Patterson had no black students and no black teachers
(App. 217-Ex. (PX 130B)); by 1963 its student body and
faculty were only 2% black (App. 218-Ex. (PX 130C));
and by 1968 the pupil population rose to 18.3% black and
the faculty to 3.5% black. App. 219-Ex. (PX 130D). Stu
dents were admitted to Patterson through a special process
involving coordinators and counselors, none of whom were
black prior to 1968. App. 357-58. Patterson has over the
years (even after 1967 through the time of trial) served
as an escape school for white students residing in iden-
tifiably black or “ changing” high school attendance zones,
particularly Roth and Roosevelt. App. 187-88. In conjunc
tion with the attendance-area high schools, these two spe
cial high schools operated as city-wide dual-overlapping
zones contributing to the pattern of racially dual schools
at the high school level throughout the district. See App.
296-97, 187-88.
Actual statistics on the choices made by parents and
children in four optional areas are available. In each in
46
stance the option operated in the past, and in three in
stances 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 as a substitute for free transfers between
various West-Side elementary schools (see pp. 26-27,
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. App.
158-Ex. (PX 15A1). Testimony from a Dayton school
administrator indicates that from 1957 through 1961, al
though 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). App. 169-71; R.I. 797-802, 831-33. The Roosevelt
yearbook for 1962 shows that only three white seniors from
the optional area attended the black high school. App.
156-57-Ex. (PX 15A). As Mrs. Greer testified, this op
tional area did “an excellent job of siphoning off white
students that were at Roosevelt.” App. 98.
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. App. 505-07. This witness conceded, how
ever, that he was only looking at the effect on the “white”
school (Colonel White) and not the “black” school (Roose
velt) ; the true picture, therefore, was that in 1970 317 white
students used the optional zone to avoid attending Roose
velt, which was thereby made 100% black rather than the
87% black it would have been without the racial option.
App. 507-10, 515-17. This impact, of course, was in accord
with the historic purpose and function of optional zones
in Dayton to allow whites to avoid black in favor of
“whiter” schools.
47
As another example, the Colonel White-Kiser option ac
quired its racial implications after its creation in 1962
with the racial transition of the Colonel White school. 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 chil
dren chose the 46% black Colonel White school, while 20
chose the 6% black Kiser school. App. 159-Ex. (PX 15B1),
275-76-Ex. (DX AI (b)). The Veterans Administration
optional area between Residence Park and Jackson oper
ated in a similar way. App. 315-Ex. (DX CO), App. 317-
Ex. (DX CP). Petitioners’ exhibits show 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, Res
idence Park was basically white and Jackson was black,
App. 101, 271-73. (By 1963, however, Residence Park had
become 80% black. App. 218-Ex. (PX 130C).)
Although by the time of trial many of these still-existing
optional zones had already exhausted their segregative pur
pose of allowing whites to leave predominantly black or
“changing” schools to which they would otherwise have been
assigned, over the long term they clearly contributed sub
stantially to, and facilitated, school segregation.17 Moreover,
17 When petitioners say that “ the undisputed evidence is that
racial considerations never played a role in the establishment of
optional zone attendance boundaries in the Dayton system [citing
App. 391, where one of the Board’s managing agents says that race
never played a role]” (Pet. Br. 34), they either grossly mis-state
the case, or they mean that respondents were unable to produce
evidence of subjective racial motive on the part of responsible
school officials. For the facts set out in text— “optional zones”
employed for “political” purposes, without justification in accepted
principles of educational administration, in defiance of claimed
“neighborhood school” postulates, and with frequent clear racially
48
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 precipitat
ing additional instability and transition in residential areas.
From 1968 through 1971 when Roosevelt was a 100% black
school, for example, 375 white children from the Roosevelt-
Colonel White optional area attended Colonel White. App.
158-Ex. (PX 15A1). Throughout its life, then, this option
has allowed very substantial 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. App. 156-57-Ex. (PX
15A), 158-Ex. (PX 15A1). Plaintiffs’ expert, Dr. Foster,
explained how optional attendance areas facilitate both
educational and racial segregation:
[T]he short term effect . . . is to allow whites to move
out of a school assignment that is becoming black. . . .
[A pp . 282],
[Gjenerally where you have an optional zone which has
racial implications, you have an unstable situation that
segregative impact— certainly create a “ dispute,” standing alone,
as to whether segregative intent was at work. When it is recalled
that “optional zones” in Dayton originated in the early 1950’s as
the offspring of the prior free-transfer policy which was a patent
segregation device, and that such zones were the key to converting
more of the West Side schools into black schools, the only reason
that a “ dispute” exists is because of petitioners’ refusal to face the
plain facts. When these facts are then placed in the context of a
system that was methodically practicing racial discrimination in
virtually all other areas of school administration, the conclusion
that “ optional attendance zones” were regularly predicated upon
segregative intent is put beyond doubt, if not beyond “dispute.”
With great frequency, optional zones in Dayton were pure racial
gerrymanders. Of. Gomillion v. Lightfoot, 364 U.S. 339 (1960).
The fact that such machinations sometimes had no racial implica
tions can mean no more, on this record, than that the Board also
found them adaptable to non-ra.cial “political” purposes.
49
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 precipitated further segrega
tion. . . . [App. 281].
Formal attendance boundaries, in conjunction with op
tional zones, have also operated in a segregative fashion;
and in some instances firm boundaries were also drawn
along racial lines. An example is the boundary separating
Roth and Roosevelt which was drawn in 1959. Roth took al
most all the white residential 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. App. 295, 348; 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. App. 9-Ex. (PX. 3 ).)18
18 Petitioners point (Pet. Br. 24, 28) to a small handful of
actions, including the construction of Roth, taken over the long
course of this record which they argue is proof of their “ intent to
improve racial mix while preserving the concept of neighborhood
schools. . . .” Pet. Br. 28. The notion that the location of Roth was
based on integrative intent was refuted by petitioners’ own witness
on. the subject, who said that race was not considered at all. App.
389. Petitioners’ argument about Roth also ignores the fact, shown
in text, that the Roth attendance boundary was drawn in such a
way as to remove nearly all of the white students from Roosevelt,
thereby markedly hastening its conversion into a black school.
{See also the alternatives discussed in the next paragraph in text.)
Petitioners’ other three actions claimed to have been based on
“ intent to improve racial mix”—the 1952 West Side reorganization
(of all things), the 1967 location of the Jefferson primary unit,
and the 1969 revision of the Stivers high school boundaries (Pet.
50
Another high school under construction at the same time
as Roth, Meadowdale, opened in 1960, but as an all-white
school with an all-white staff. App. 11-Ex. (PX 4). Oppor
tunities 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. App. 269, 295, 348-49; 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 p. 40, supra.
In still other instances, firm 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 atten
dance zone to the black schools actually attended the pre
dominantly white schools located on the other side of Wolf
Creek. App. 210. A similar situation existed in the Res
idence Park-Jackson area. See p. 47, supra.
Finally, the Board also persistently refused to redraw
boundaries between, or pair, contiguous sets of schools
Br. 28)—are of a similar quality. But these are minor skirmishes,
designed to focus attention away from the overpowering record
evidence of intentional segregation. Petitioners’ counsel properly
described them as “isolated incidents” (App. 390), at best; even if
petitioners’ version of these events could be accepted, they pale
out of existence in the light of the whole record.
51
which had been, and were at the time of trial, substantially
disproportionate in their racial compositions. Examples of
such contiguous pairs include Drexel (8% black) and Jane
Adams (79% black); McG-uffey (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 alternatives to segregation—
many of which were recommended by subordinate school
administrators and even the Ohio State Department of
Education (App. 131-32, 113-4-9 Ex. (PX 12))—were re
jected by the Board.18 19
19 The District Court’s Opinion (Pet. App. 155a, 159a, 162a-69a,
170a, 174a). The court’s unsupported summary conclusion that
“ [n]o evidence has been presented suggesting that attendance
zones were redrawn to promote segregation” (Pet. App. 155a), is
clearly erroneous, as the evidence set forth above demonstrates.
Examples of similar errors include the conclusion that no segrega
tive intent was involved in the redrawing of Dunbar’s high school
zone in 1962, as well as the boundary changes attendant upon con
version of the old Dunbar into McFarlane elementary. Pet. App.
159a. 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 segregative intent.
Similar clear error occurred with respect to the court’s evaluation
of the Roosevelt boundary change which accompanied the 1959
opening of Roth high school (Pet. App. 174a), as demonstrated by
the factual discussion at p. 49, and n.18, supra.
The court’s conclusions that optional zones, including the city
wide high school options, had neither segregative intent nor effect
(Pet. App. 162a-69a), also are clearly erroneous. Here as else
where the courts 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 segregative ends.
See pp. 26-27, and n .ll, supra. In proper 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 exacerbated intentionally-
imposed systemwide segregation. The court’s contrary conclusions
are manifestly erroneous.
[Optional or dual overlapping zones were the mainstay of the
“southern” style of dualism. See Green, 391 U.S. at 432. Such
options are a classical segregation device which the courts have
found prevalent in the “northern” cases as well. See, e.g., United
52
4. Grade Structure and R eorganisation.
As previously noted, the Board persistently refused to
alter grade structures by pairing schools to accomplish
pupil desegregation. See pp. 50-51, supra. Likewise, the
different grade structures involved in the construction of
primary units, and the various grade organizations of the
Dunbar high school (and Willard and Garfield prior to
1962) have perpetuated and compounded school segrega
tion. See pp. 17-19, 40, 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 reor
ganization program presented an important opportunity
for the Board to accomplish 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.
App. 70-81-Ex. (PX 10). Yet, in the face of recommenda
tions from the State Department of Education of alterna
tives for accomplishing substantial desegregation, and the
development of a pupil locator map so that there could be
States v. School District of Omaha, 521 F.2d 520, 540-43 (8th
Cir.), cert, denied, 423 U.S. 946 (1975), and cases cited; Bradley
v. Milliken, 484 F.2d 215, 232-35 (6th Cir. 1973), and cases cited.
Judge Wisdom has correctly described this device as “ unadulterated
segregation.” United States v. Texas Educ. Agency, 457 F.2d 848,
867 (5th Cir. 1972) (en banc).]
The Court of Appeals’ Opinion (Pet. App. 209a-10a). The
court of appeals rejected as clearly erroneous (Pet. App. 210a)
the district court’s conclusory finding that “ [n]o evidence has
been presented suggesting that attendance zones were redrawn to
promote segregation,” and the appellate court specifically found
that the Board had used “ optional attendance zones for racially
discriminatory purposes in clear violation of the Equal Protection
Clause.” Pet. App. 209a (footnote omitted). The factual details
set out above compel the conclusion reached by the court of appeals.
53
no doubt about the racial impact of its actions, the Board
implemented a plan which reimposed segregation at three
middle schools and their feeder elementaries, increased
racial segregation at another middle school, and accom
plished some desegregation at the fifth middle school. App.
147-48-Ex. (PX 12). The Board’s actions thus resulted in
“increasing or maintaining segregation as opposed to avail
ing the opportunity of decreasing it.” App. 303. The Ohio
State Department 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 activities which are offensive
to the Constitution and which are degrading to school chil
dren.” App. 148-Ex. (PX 12).20
5. P upil T ransfers and Transportation.
Prior to the West-Side reorganization in 1952 (see pp.
25-27, supra), the Dayton Board regularly transferred (and
provided transportation where necessary to) white chil
dren from the attendance areas of black schools, past or
away from other all-black schools to “whiter” schools.
20 The District Court's Opinion (Pet. App. 157a-58a). The
district court concluded that the grade-structure reorganization
accompanying the creation in 1971 of five middle schools was not
a result of segregative intent. This conclusion might not be clearly
erroneous 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.
The Court of Appeals’ Opinion (Pet. App. 212a-13a). The court
of appeals characterized the district court’s finding as “ question
able in light of plaintiffs’ convincing demonstration that the
natural, probable, and foreseeable result of the establishment of
the middle schools was an increase or perpetuation of segregation”
(Pet. App. 213a), and held that the trial court erred in “fail[ing]
to recognize the middle school system as one of the areas in which
defendants failed to disestablish Dayton’s dual school system.” Id.
54
App. 412-13. 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 pp. 26-27, supra. And the city-wide Dunbar
and Patterson Co-op high schools operated in similar fash
ion. See p. 45, supra.
In addition, curriculum, hardship and disciplinary trans
fers have functioned in many instances to allow white
children to avoid attendance at identifiable black schools
as well as to channel black students away from white
schools. App. 171-73, 153; R.I. 799-800, 819-22. These
practices reinforced the racial identification of the schools.
Two prime examples are the use of curriculum transfers
by white students under the Board’s Freedom of Enroll
ment plan (App. 153-54, 171-73), and the emergency trans
fers of students in 1969 involving the Roth and Stivers
high schools. App. 299, 164-65-Ex., 169-Ex. (unmarked ex
hibits). This latter incident takes on additional signifi
cance because it occurred in connection with the only time
prior to trial that the Board redrew an attendance bound
ary 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. App. 218-20. In the very first year following this
realignment, disciplinary 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 trans
ferred were assigned to black schools; and none of the
black children transferred were assigned to white schools.
App. 219-25.
55
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 as
signments. App. 299. During the 1972-73 school year, for
example, 266 (or 70%) of the 377 black children trans
ferred were assigned to black schools, and 155 (or 91%)
of the 171 white children transferred were assigned to
white schools. App. 174-75-Ex. (PX 16F).
Throughout the post-Brown period, non-resident pupils
attending the Dayton system on a tuition basis were as
signed in a similar racially dual fashion: white pupils
were assigned to white schools (App. 211-12), and black
pupils were assigned to black schools. App. 126-27. The
assignment practices relating to several hundred white
high school pupils from Mad River Township, who at
tended 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. App. 211-13, 409-11,
170-Ex. (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. App. 212.
An additional, classical segregation technique utilized by
the Dayton Board was “ intact” busing. There are two ex
amples. First, in 1963 white children from the Ruskin
school were transported as a segregated unit (i.e., teacher
and class as a unit) into separate one-race classes at the
56
racially mixed Central school. App. 129-30. The second
instances 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 accom
modated in the white transferee schools in racially segre
gated classes. App. 128-29, 188-89.
Significantly, intact busing was not the Board’s first
alternative with respect to reassigning the Edison children.
As Assistant Superintendent Harewood, the first black in
the Board’s central administration, recounted the incident,
the first proposal 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 consulta
tion with Mr. Harewood, the decision was made to trans
port self-contained black units into the white schools. App.
128-29. 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. App. 189. 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 chil
dren from the overcrowded Jefferson school were assigned
by non-eontiguous zoning to a number of white schools.
B.I. 848-50; PX 122. These small amounts of actual, al
57
though only one-way, desegregation were short-lived, how
ever. 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 chil
dren were resegregated into the rebuilt black Edison school
(and by then, the black McFarlane middle school), and
the black Jefferson school. App. 208. 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:
% Black % Black
1970-71 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
Valerie 20.0 13.5
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 transported in such a fashion as to accomplish de
segregation ; with singular consistency, the Dayton Board’s
transportation practices have maintained, reinforced
and/or exacerbated racial segregation. [Although trans
portation has been used only twice (see p. 54, 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 south
east areas of the system were transported to white schools
in those areas (App. 196); and, of course, black orphan
children were transported all the way across town to the
58
all-black Garfield school (see p. 16, supra). (Ohio law
requires that local school authorities make transportation
available, and the Dayton Board so acts, for students who
are assigned to schools beyond a prescribed distance from
home. App. 193, 196, 414.)]
Finally, the Board’s Freedom of Enrollment policy,
adopted in 1969, 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 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.
App. 161-62-Ex. (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. E.g., App.
153-54. (In the 1972-73 school year, for example, 22 of 23
white students transferring under the Freedom of Enroll
ment policy were transferred to white schools. App. 173-
Ex. (PX 16D).) Under the third priority, 459 black chil
dren 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 matriculat
ing into a 54.3% black high school, made a racial balance
transfer. App. 173-Ex. (PX 16D), 299. 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. As
the Superintendent testified, “ the pattern . . . has been
pervasive down through the years, that no white students,
59
regardless of from where they came, or the purpose, were
assigned to black schools.” App. 212.21
6. T h e B oa rd ’s R escission o f Its Affirm ative D u ty.
As reflected in the foregoing pages, black citizens of Day-
ton bad long been thwarted in their attempts to end state-
imposed racial segregation in their public schools. Even
aggressive action, such as that taken by Robert Reese’s
father when he went to court in 1926 to challenge inten
tional efforts to segregate his children, was effectively
blunted by Dayton school authorities’ commitment to sep
21 The District Court’s Opinion (Pet. App. 160a-6‘2a). 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 themselves and in the con
text of the other widespread discrimination of record, the facts
described above are further evidence of the intentional discrimina
tion which infected the Dayton school system at the time of trial,
and, at a minimum, they are part of the deliberate perpetuation
of the dual system.
The Court of Appeals’ Opinion. The court of appeals did not
specifically address this evidence of discrimination in its Brink-
man TV opinion (in Brinkman I, the court concluded that this
evidence raised “serious questions,” Pet. App. 66a, of racial dis
crimination, id. at 65a-66a), but rather subsumed them within
its general “ consideration of the legal and factual issues pre
viously reserved by this court in Brinkman I (id. at 194a) and its
overall conclusion that in the post-Brown era the Board pursued
“racially motivated policies with respect to the assignment of
faculty and students, use of optional attendance zones, school
construction and site selection, and grade structure and reorganiza
tion [which] perpetuated or increased public school segregation in
Dayton . . . and, in addition, . . . committed affirmative acts that
have exacerbated the existing racial segregation.” Id. at 213a.
At the very least, as with the “middle school reorganization,”
these diverse transfer policies and practices are another “of the
areas in which defendants failed to disestablish Dayton’s dual
school system.” Pet. App. 213a.
60
aration of the races. See pp. 14-15, supra. During another
period of active unrest, 1951-52, the Board imposed the
West-Side reorganization and a new racially discrimina
tory faculty-assignment policy. See pp. 23-27, supra. The
black community’s repeated protests following Brown to
the continued segregation also were turned aside. See
App. 52-53-Ex. (PX 9), 150-51-Ex. (PX 13A), 152-Ex. (PX
13B), 153-55-Ex. (PX 13N). By the late 1960’s, however,
those who objected to state-imposed school segregation be
gan to gain allies, both in the white community in Dayton
and among state and federal agencies. As previously noted
{see pp. 34-35, supra), HEW conducted a Title VI compli
ance review in 1968 and forced the Board in 1969 to agree
to end its racially dual faculty-assignment policy. HEW
had also noted the “substantial duality in terms of race or
color with respect to distribution of pupils in the various
schools . . .” (App. 109-Ex. (PX 11A)), 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 desegre
gation in both the North and the South. See, e.g., Adams
v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973) {en lane) ;
Brown v. Weinberger, 417 P. Supp. 1215 (D.D.C. 1976).
And it has not been notably aggressive even with respect
to faculty segregation. See Kelsey v. Weinberger, 498 F.2d
701 (D.C. Cir. 1974).)
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.” App. 117-Ex. (PX 12). But these were just
words and informal ones at that. As the State Assistant
61
Superintendent for Urban Education noted at tlie same
time, there was a definite need for action and not just
words. App. 116-Ex.
On 29 April 1971, the Board requested assistance from
the State Department of Education’s Office of Equal Edu
cational Opportunities to provide technical assistance in
the development 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. App. 48-
49-Ex. (PX 9).
The State Department of Education responded by as
sembling a team of consultants and specialists to evaluate
data and make recommendations. Their recommendations
were submitted to the Dayton Superintendent on 7 June
1971. App. 113-49-Ex. (PX 12). The State Department ad
vised the Dayton Board of its constitutional and other legal
obligations (App. 128-Ex.) (emphasis in original):
Since the Board, as an agency of state government, 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 segre
gation.”
The State Department then turned its attention to a
list of alternatives, and urged the Dayton Board to
shoulder its constitutional obligations now (App. 135-Ex.)
(emphasis in original):
Delaying tactics could be continued. The Board, in
spite of resolutions and overt commitment, could
6 2
choose to make only the slightest mandated changes,
and to utilitze the best legal talent available to resist
compliance with constitutional requirements. Other
school districts have chosen this alternative, even as
Dayton has used similar methods in the past. How
ever, the highest court in the land has stated the con
stitutional offensiveness of state-imposed segregation
of school-children, and persisting delay clearly vio
lates 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. App.
158-Ex. (Under the terms of Opinion No. 6810, issued by
the Ohio Attorney General on 9 July 1956, the State De
partment of Education has the primary affirmative duty to
see that local school districts comply with their Fourteenth
Amendment obligations with respect to public schooling.
App. 331-40-Ex.)
The Board-appointed advisory committee of community
representatives became known as the “Committee of 75.”
In his charge to the Committee, the Dayton Board Presi
dent stated: “We have admitted that the district is guilty
of procedures which have led to the racial isolation of
school children.” App. 50-Ex. (PX 9). The Committee
issued its report in the fall of 1971. The Report of the
Committee of 75 (App. 48-63-Ex.) also urged the Board to
adopt a comprehensive plan and joined the State Depart
ment in emphasizing “that time for a change in Dayton has
run out! We must act now.” App. 63-Ex.
On 8 December 1971 a majority of the duly constituted
Dayton Board—for the first time ever, and perhaps em
63
boldened by the knowledge that they would soon be out of
power, the balance of which had been shifted to vocal
“anti-busing” candidates who had prevailed in the Novem
ber elections (see App. 198-99)—responded with meaning
ful action. It first “recognize [d] and admit [ted] that racial
and economic segregation exists in the Dayton schools be
cause of the actions and inactions of this and predecessor
Boards in the establishment of attendance districts, the
location and expansion of school buildings, pupil assign
ment practices, design of curriculum suitable to urban
needs, the assignment of teachers and other staff, and the
conduct of student activity programs. . . .” App. 15-Ex.
(PX 7). 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 prin
cipal parts: first, the existing attendance zones and the
Freedom of Enrollment policy were abrogated effective 1
September 1972; second, in their stead, a new pupil-assign
ment policy was adopted, the goal of which was that no
school would have a racial composition “ substantially dis
proportionate to the district as a whole.” App. 23-Ex. Pur
suant to the Board’s directions, the Superintendent of
Schools adopted a plan for fall 1972 prepared by Dr. Gor
don Poster and others of the Title IV Florida School De
segregation Consulting Center of the University of Miami.
App. 64-108-Ex.
On 3 January 1972, however, a newly-constituted Dayton
Board (three new members of the seven-member Board
had been elected the previous November to take office in
January) rescinded the prior Board’s action of 8 December
1971, refused to consider the plan adopted by the Superin
tendent, reinstated the Freedom of Enrollment policy and
reimposed the segregated attendance zones. App. 24-46-Ex.
(PX 8). By its actions, the new Board made it clear to the
64
Superintendent that he would not be permitted to exercise
his independent authority over the assignment of pupils
(see App. 254-Ex.; Ohio Rev. Code §3319.01) to implement
the pupil-assignment plan he had promulgated and adopted
pursuant to the December resolutions. App. 190, 463. The
Ohio law 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 outside their school districts of residence, where
board approval is necessary. The Board thus undid the
operative administrative action of the Superintendent and
intentionally reinstated systemwide segregation of the
public schools.22
22 The District Court’s Opinion (Pet. App. 180a-85a). In its
initial 1973 liability ruling, the district court analyzed the Board’s
1972 rescission of its 1971 desegregation resolution and concluded
that the Board’s action “constituted an independent violation of
the Equal Protection Clause rights enjoyed by the black minority
of Dayton.” Pet. App. 11a. The court completely repudiated this
analysis in its 1977 ruling on remand from this Court. 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 ap
pointed representatives are probative; indeed, in the context of
this record they are eminently correct. The district court clearly
erred in not assigning weight to, and in refusing to adopt, these
findings and conclusions. In addition, the district court failed to
evaluate the circumstantial evidence to determine whether evidence
of racial discrimination was among the factors motivating the
rescission, and the district court similarly failed to determine
whether the Board’s action undid Superintendent Carle’s adminis
trative action which was operative under Ohio law. As a conse
quence, the court also erred in failing to conclude that the
rescission was itself either an independent act of intentional
systemwide segregation or the effective frustration of a constitu
tional remedy for the intentional segregation inherited by the new
Board from its predecessors.
The court is clearly mistaken in its apparent conclusion that
the Board’s December 1971 decisions aimed at curing admitted
65
7. T h e Dual System at the T im e o f Trial.
At the time of trial, the Dayton school district was segre
gated by race, as it always had been. In the 1971-72 school
acts of segregation constituted an effort to “ manufacture'’ a con
stitutional violation “by political or legal maneuvering.” Pet. App.
184a. Here the district judge appears to be relying upon his
personal “views as to the obligations and the legal representation
of public bodies, and it does not include in my opinion the dis
cussion with non-representing attorneys. . .” App. 485 (statement
of the cou rt); see also id. at 484-85. These views (contrary to
those held by the judge in 1972, when he considered these matters
irrelevant, see App. 485, 201-02) have to do with the fact that
prior to the December 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 11. Lucas, who subsequently
represented (and still does) the plaintiffs in this litigation.
Begardless 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.” App. 485.
Thus, any asserted “manufacturing” of constitutional violations
by the December resolutions represented the duly constituted
majority’s attempt to respond to their perceptions of the preced
ing year’s events concerning their hopes and plans for desegrega
tion and their defeat at the polls by vocal pro-segregation forces.
The Board’s December 1971 decision to desegregate the system
was, therefore, the considered and resolute product of determina
tions that affirmative remedial action was required to comply with
the Board’s constitutional obligations. When the new Board voted
on 3 January 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 in response to the dominant white community hostility to
desegregation. 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 undid the desegregation pupil assignments adopted
by the Superintendent and intentionally reimposed segregation on
(Footnote continued on following page)
6 6
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 stu
dents were assigned to the 21 black schools. App. 4-Ex.
(PX 2D). 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). App.
1-Ex. (PX 2A).
Thus, although the system was larger, it was basically
the same dual system that existed at the time of Brown
(see pp. 21-22, supra). [It was also the same one that
existed in the 1963-64 school year (the first year after
Brown for which racial data are available). 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,
22 (Continued)
a systemwide 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,
particularly in light of this Court’s implicit holding in Dayton I
that an equal-protection violation would be made out if the Board
had “acted to undo operative regulations affecting the assignment
of pupils or other aspects of the management of school affairs, cf.
Beitman v. Mulkey, 387 U.S. 369 (1967). . . .” Pet. App. 130a, 433
U.S. at 413-14.
The Court of Appeals’ Opinion. In its Brinkman I decision the
court of appeals detailed the facts set forth above. Pet. App. 40a-
48a, 53a-56a. In the opinion below, Brinkman IV, the court of
appeals did not again discuss the rescission, apparently because of
this Court’s approval (Pet. App. at 130a) of the Brinkman I dis
position of this issue, which found it “unnecessary to pass on the
question of whether the rescission by itself was a violation of
[plaintiffs’ constitutional] rights.” Pet. App. at 56a. In particular,
the court of appeals did not address plaintiffs’ contention that the
rescission did in fact “undo operative regulations affecting the
assignment of pupils.” Dayton 1, 433 U.S. at 413.
67
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. App. 3-Ex. (PX
2C).]
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, all opened 90% or more
white and, if open, were 90% or more white in 1971-72,
1963-64, and 1951-52. App. 5-Ex. (PX 2E). See also Brink-
man I, 503 F.2d at 695.
The Board was operating a dual school system at the
time of trial.23
E. The Remedy.
The systemwide desegregation plan now in place in Day-
ton was implemented at the start of the 1976-77 school year
pursuant to district court orders on remand from the court
of appeals’ judgment in Brinkman II, 518 F.2d 853, cert,
denied sub nom., 423 U.S. 1000 (1975) (Pet. App. 89a).
23 The District Court’s Opinion (Pet. App. 149a-50a). The
district court did not dispute any of the statistical facts set out in
text, but it, of course, concluded that none of the Board’s inten
tionally segregative conduct, which had gone uninterrupted for 60
years, required remedial action.
The Court of Appeals’ Opinion (Pet. App. 205a-06a, 213a-14a).
The court of appeals concluded that the Board’s post-Brown con
duct, “rather than eradicate the systemwide effects of the dual
system extant at the time of Brown I, . . . perpetuated or increased
public school segregation in Dayton . . . and, in addition, [that the
Board] committed affirmative acts that have exacerbated the exist
ing racial segregation.” Pet. App. 213a. “ The evidence of record
demonstrates convincingly that defendants have failed to eliminate
the continuing systemwide effects of their prior discrimination and
have intentionally maintained a segregated school system down to
the time the complaint was filed in the present case.” Id. at 206a.
Accordingly, the court determined that the Constitution demands
a remedy.
6 8
Upon that remand, the district court appointed an expert,
Dr. Charles Glatt, to examine the system and make desegre
gation recommendations. Dr. Glatt was murdered in the
midst of his work in the federal building in Dayton. There
after, both plaintiffs and the Board presented plans for the
district court, pursuant to its order of 5 November 1975.
The Board’s plan was prepared by the team of experts ap
pointed by the Board. The Board had voted to submit the
plan to the court, but, by vote of 4-3, the Board refused to
approve the plan. App. 439. The plan prepared by the
Board’s experts utilized diverse choice, zoning and curri
culum differentiation mechanisms for desegregation, hut
the plan did not specify actual pupil assignments, and no
provision for transportation was included. R.III. 38-40,
52, 67-69, 101, 136-37,149-51, 206-20, 252-53. Both plaintiffs’
experts and the Board’s experts were in agreement, how
ever, that approximately 15,000 pupils would have to he
transported under either the Board’s plan or plaintiffs’
plan, and that, because of Dayton’s compact nature and the
efficiency of its thoroughfares, complete, effective desegre
gation could he accomplished without presenting any threat
to the health, safety or education of school children due to
factors of time, distance and amount of transportation.
App. 438; R.III. 224; “A Desegregation Plan for the Day-
ton, Ohio Public Schools,” at 127, 138 (2 December 1975)
[the Board’s plan].
Following an 8 December 1975 hearing, the district court
entered an order on 29 December 1975 on the plans sub
mitted. Pet. App. 99a-106a. After summarizing the nature
of the plans, the limited nature of federal judicial interven
tion, and the Board’s broad discretion in matters of ad
ministrative and education policy (id. at 100a-02a), the
court gave the Board the following options (id. at 102a):
The defendants may adopt their own plan, may adopt
the plaintiffs’ plan, may combine the two, or any parts
69
thereof, provided that each school in the school dis
trict as of September 1,1976, is desegregated as defined
herein.
Observing that the system was 48% black and 52% white,
the court stated that any school would be deemed desegre
gated if it “reflect[ed] this district ratio plus or minus
15%.” Id. at 103a. The court set forth two exceptions to
this requirement. First, it allowed all students already
enrolled in high schools to remain at their present school
through graduation because of the importance the court at
tached to high school “ loyalty.” Id. Second, citing Swann,
402 U.S. at 24, the court held that “where a specific school
should deviate further from the foregoing percentages by
reason of geographic location, the Court will consider such
instances on a school-by-school basis.” Id. at 104a. The
court then appointed Dr. John A. Finger (who had been
the district court’s expert in Swann) to act as Master pur
suant to Rule 53, F ed. R. C iv . P., to work out the details of
a plan with Dayton school officials. The following guide
lines were set for the Master with respect to elementary
students (id. at 104a):
1. Students may attend neighborhood walk-in schools
in those neighborhoods where the schools already have
the approved ratio;
2. Students should be transported to the nearest avail
able school;
3. No student should be transported for a period of
time exceeding twenty (20) minutes, or two (2) miles,
whichever is shorter.
On 15 March 1976 the Master submitted his report. App.
34-o2. The Master recommended that elementary schools
be desegregated primarily on the basis of the common tech
70
nique of pairing schools. With respect to high schools, the
Master relied on a program of choices and random assign
ments limited by racial guidelines. Under his plan, the
Master estimated that the maximum distance of travel
for any students would be somewhat in excess of 5 miles,
but that “ the longest travel time should not much exceed
20 minutes.” App. 39.
The district court conducted a hearing on the Master’s
report on 22 and 23 March 1976. At this hearing, the
Dayton Board requested several modifications of the Mas
ter’s plan: to be allowed to reassign pupils to paired
schools in advance in the spring by the central admin
istration, rather than by the school principals on the first
day of the 1976-77 school year; to be allowed to exchange
paired schools (with no transfer of teachers) on an an
nual rather than semi-annual basis; to be allowed to as
sign high school students on geographic-zone rather than
choice and random-assignment bases; and to phase in the
elementary plan over three years (including withholding
some 8 schools from the desegregation plan for the 1976-77
year). R.III. 288-89. The Board presented no argument,
testimony, or other evidence that any school or child
should be excluded from the plan because of any geo
graphic location or claim of excessive distance or time
involved in reassignment and transportation.
On 23 March 1976 the district court entered its final
order approving the proposed desegregation plan of the
Master, with modifications, and directing the Dayton
Board to implement the plan for the 1976-77 school year.
Pet. App. 110a-13a. The court gave the Board the dis
cretion either to implement the Master’s report or the
Board’s proposed modifications, except insofar as the
Board sought a three-year phase-in of the plan at the
elementary level. Id. at llOa-lla. The district court also
71
expressed its willingness to consider proposed modifica
tions to the plan at any time from any party. Id. at 112a.
A judgment was entered on 25 March 1976 in accordance
with the 23 March order. Pet. App. 114a-16a. There
after, the Dayton Board sought six additional modifica
tions which, with one exception (concerning the exclusion
of eighth graders from the plan), the district court ap
proved by an order of 14 May 1976. Pet. App. 117a.
The Dayton Board then appealed, and their appeal was
heard by the Sixth Circuit on an expedited basis. The
court of appeals issued its decision in Brinkman 111 on
26 July 1976. Pet. App. 118a-23a. The court of appeals
noted that although its decision in Brinkman II had
ordered system-wide desegregation, the Board pro
posed no plan to achieve this mandate and made no
showing of the existence of conditions related to the
topography of the Dayton area, location of natural or
artificial barriers, geographic isolation or similar con
siderations which might militate against an order re
quiring cross-district transportation of pupils, [id. at
121a]
As to the Board’s argument that the district court’s
guiding standard that each school should be within the
district-wide racial ratio, plus or minus 15%, the court
of appeals said (id. at 121a-22a):
Rather than establishing a fixed mathematical require
ment as the Board claims it does, this formula pro
vides a flexible basis of pupil assignment similar to
that approved by the Supreme Court in Swann, supra.
The flexibility of the district court’s judgment is fur
ther illustrated by the exemption of two entire grades
of high school students, the provision for variations
from the plus or minus 15% requirement “in excep
72
tional circumstances” and the options granted the
Board which permitted it to choose alternate methods
of achieving desegregation rather than being required
to follow in every detail the plan submitted by the
Master. We view the use of mathematical ratios in
this case as no more than “a useful starting point”
in shaping a remedy for past discrimination. Swann,
supra, 402 U.S. at 25.
Finally, the court of appeals dealt with an argument
raised by the Board for the first time at oral argument:
that the district court’s order required periodic changes in
the Dayton plan to maintain a fixed racial balance in per
petuity in violation of this Court’ s intervening decision in
Pasadena City Board of Education v. Spangler, 427 TJ.S.
424 (1976). The court found that this contention was com
pletely without merit: “The short answer to this argu
ment is that the judgment directs no changes after the
1976-77 school year.” Id. at 123a, The court noted that
the plan ordered by the district court “ established the first
constitutionally sufficient desegregation plan for the Day-
ton system. If adjustments to this plan are sought by any
of the parties in future years the district court will neces
sarily consider the limitations of Spangler in dealing with
such requests.” Id.
Upon review of the court of appeals’ judgment in Brinh-
man III, this Court remanded the case to the district court
for further consideration of the violation and of the rem
edy in light of the extent of the violation, directing that
the systemwide plan remain in effect pending such con
sideration. Dayton I, 433 U.S. 406 (1977), Pet, App. 124a.
In the proceedings in the district court pursuant to that
remand, the Board continued to adhere to its consistent
legal strategy of contending that no court-ordered remedy
73
of any magnitude is permissible. The Board did not pro
pose modifications of the plan with respect to any affected
schools, but insisted that it was not constitutionally re
sponsible for the racial composition of a single school.
The Board would not even assume arguendo that there
were at the time of trial any vestiges of any of the Board’s
conceded intentionally discriminatory conduct ; and, con
sequently, it offered no alternatives to the systemwide
plan now in effect. As we asserted below, without chal
lenge from the Board, “ [a]s we understand the Board’s
position . . ., if plaintiffs are correct in their claim of a
systemwide violation, then the plan of desegregation cur
rently in place is as good a cure as any.” Brief for Appel
lants 65 and Reply Brief for Appellants 29, 6th Cir. No.
78-3060.24
The remedial plan implemented in the fall of 1976 has
real potential for eradicating racial discrimination, root
and branch, from the Dayton school system. See Appendix
B to Brief for Respondents in Dayton I, No. 76-539.25 26
24 In its petition for certiorari and in its brief on the merits to
this Court, the Board makes no claim that the systemwide plan
now in effect compels any annual reassignments or an otherwise
unconstitutional racial balance if the violation is systemwide in
scope and impact.
26 The District Court’s Opinion (Pet. App. 188a). The district
court concluded that none of the racial segregation extant at the
time of trial resulted from constitutional violations. The court
therefore dismissed plaintiffs’ complaint in its entirety.
The Court of Appeals’ Opinion (Pet. App. 214a-17a). The
court of appeals concluded that the systemic nature of the Board’s
intentionally segregative practices had had a systemwide impact
necessitating an across-the-board remedy. Finding that the Board
had not met its burden of showing that a less extensive remedy
would be adequate, the court reaffirmed the plan it had approved
in Brinkman III.
74
Introduction and Summary of Argument
Introduction
The essence of the questions presented by the Dayton
Board here is the same as that presented to this Court in
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1
(1971); who is responsible for the flourishing of the basi
cally dual system in the years following Brown? And who
bears the burden of explaining the continuation of a system
of basically one-race schools following Brown through the
time of trial! Without doubt, it would have been easier
to answer these questions as a matter of federal judicial
intervention and local administrative practicality by dis
mantling the basically dual system of public schooling in
Dayton in 1954 (and even easier in 1933 or in 1912)
than it was to desegregate in 1976, just as it would have
been easier to convert Charlotte into a unitary system in
1954 than it was in 1971. But the answer given by a unan
imous Court in 1971 in Swann still applies with full force
to the case here because, as we shall demonstrate, there is
no constitutionally principled way to distinguish Dayton
from Charlotte on the undeniable facts of record.
It is worthwhile to recall the contours of the answer
given by this Court in 1971 to the claim by school au
thorities that they should not be held responsible for the
continuing pattern of largely one-race schooling. The
Court did not pretend that the circumstances had remained
the same since 1954, when state-imposed school segrega
tion was outlawed in Brown I, 347 U.S. 483. The Court
acknowledged, and accepted partial responsibility for, the
inordinate delay in implementing the command of Brown II
that officially segregated school systems begin the “transi
tion to a system of public education freed of racial dis
75
crimination.” 349 U.S. 294, 299 (1955).26 The Court also
noted that the remedial problem had been significantly com
plicated by the recalcitrance of state and local author
ities, by agents of racial discrimination other than school
authorities, and by the complexity of urban growth since
Brown.
As to past delay and the need for refined guidelines, the
Court said (402 U.S. at 6) :
These cases present us with the problem of defining
in more precise terms than heretofore the scope of
the duty of school authorities and district courts in
implementing Brown I and the mandate to eliminate
dual systems and establish unitary systems at once.
Meanwhile district courts and courts of appeals have
struggled in hundreds of cases with a multitude and
variety of problems under this Court’s general direc
tive. Understandably, in an area of evolving remedies,
those courts had to improvise and experiment without
detailed or specific guidelines. This Court, in Brown I,
appropriately dealt with the large constitutional prin
ciples; other federal courts had to grapple with the
flinty, intractable realities of day-to-day implementa
tion of those constitutional commands. Their efforts,
26 The eourse from Brown II to Swann may be traced through
the following opinions of this Court: Cooper v. Aaron, 358 U.S. 1
(1958); Goss v. Board of Educ. of Knoxville, 373 U.S. 683 (1963) ;
Griffin v. County School Bd. of Prince Edward County, 377 U.S.
218 (1964); Calhoun v. Latimer, 377 U.S. 263 (1964) ; Bradley v.
School Bd. of Richmond, 382 U.S. 103 (1965); Rogers v. Paul,
382 U.S. 198' (1965) ; Green v. County School Bd. of New Kent
County, 391 U.S. 430 (1968); Raney v. Board of Educ. of Gould
School Dist., 391 U.S. 443 (1968); Monroe v. Board of Comm’rs
of Jackson, 391 U.S. 450 (1968); United States v. Montgomery
County Bd. of Educ., 395 U.S. 225 (1969); Alexander v. Holmes
County Bd. of Educ., 396 U.S. 19 (1969); Carter v. West Feliciana
Parish School Bd., 396 U.S. 226 (1969) and 396 U.S. 290 (1970);
Northcross v. Board of Educ. of Memphis, 397 U.S. 232 (1970).
76
of necessity, embraced a process of “ trial and error,”
and our effort to formulate guidelines must take into
account their experience.
With respect to non-school forms of racial discrimina
tion having an impact on the problem of persisting school
segregation, the Court noted (id. at 7):
In addition to finding certain actions of the school
board to be discriminatory, the court also found that
residential patterns in the city and county resulted in
part from federal, state, and local government action
other than school board decisions. School board action
based on these patterns, for example, by locating
schools in Negro residential areas and fixing the size
of the schools to accommodate the needs of immediate
neighborhoods, resulted in segregated education. These
findings were subsequently accepted by the Court of
Appeals.
Defiance and urban complexity were discussed together,
in these words (id. at 14) (footnotes omitted):
The problems encountered by the district courts and
courts of appeals make plain that we should now try
to amplify guidelines, however incomplete and imper
fect, for the assistance of school authorities and
courts. The failure of local authorities to meet their
constitutional obligations aggravated the massive
problem of converting from the state-enforced dis
crimination of racially separate school systems. This
process has been rendered more difficult by changes
since 1954 in the structure and patterns of communi
ties, the growth of student population, movement of
families, and other changes, some of which had marked
impact on school planning, sometimes neutralizing or
77
negating remedial action before it was fully imple
mented. Rural areas accustomed for half a century
to the consolidated school systems implemented by bus
transportation could make adjustments more readily
than metropolitan areas with dense and shifting popu
lation, numerous schools, congested and complex traffic
patterns.
This Court did not absolve urban school authorities of
the affirmative remedial obligations imposed in principle
by Green, and surrender Brown to the notion that dis
mantling dual schooling had been rendered too complex.
Instead, the Court, as had District Judge McMillan, con
fronted reality and applied the spirit of the Fourteenth
Amendment, which had been found in Brown.21 Much of the
responsibility for delay must be borne by state and local
authorities, the Court noted (402 U.S. at 13 & 14): 27
27 District Judge McMillan’s findings are reported at 300 F.
Supp. 1358 and 1381 (W.D.N.C. 1969) ; 306 F. Supp. 1291 and
1299 (W.D.N.C. 1969). His understanding from the record
evidence of the wide-ranging and enduring impact of operating
one set of identifiable “Negro schools” and another of “white
schools,” and the interaction between such dual schooling and other
community discrimination and residential segregation, was not
novel. That same experience formed the basis for the landmark
decision of the Fifth Circuit on which this Court expressly relied
in Green v. County School Bd., 391 U.S. 430, 435, 440 (1968), to
require actual desegregation rather than the continued “racial
identification” of schools under the guise of ineffective “ free choice”
and “free transfer” schemes. 391 U.S. at 435-442. Judge Wisdom
wrote for the Fifth Circuit in United States v. Jefferson County
Bd. of Educ., 372 F.2d 836, 876 (5th Cir. 1966), aff’d en lane.
380 F.2d 385 (5th Cir. 1967), cert, denied, 389 U.S. 840 (1967) :
Here, school boards, utilizing the dual zoning system, assigned
Negro teachers to Negro schools and selected Negro neighbor
hoods as suitable areas in which to locate Negro schools. Of
course, the concentration of Negroes increased in the neighbor
hood of the school. Cause and effect came together. In this
circuit, therefore, the location of Negro schools with Negro
facilities in Negro neighborhoods and white schools in white
neighborhoods . . . came into existence as state action and
continues to exist as racial gerrymandering.
78
Over the 16 years since Brown II, many difficulties
were encountered in implementation of the basic con
stitutional requirement that the State not discriminate
between public school children on the basis of their
race. Nothing in our national experience prior to 1955
prepared anyone for dealing with changes and adjust
ments of the magnitude and complexity encountered
since then. Deliberate resistance of some to the Court’s
mandates has impeded the good-faith efforts of others
to bring school systems into compliance. The detail
and nature of these dilatory tactics have been noted
frequently by this Court and other courts.
* * * * *
The failure of local authorities to meet their consti
tutional obligations aggravated the massive problem
of converting from the state-enforced discrimination
of racially separate school systems.
In addition, the impact of faculty assignment and other
forms of discrimination not directly involving pupil as
signments was independently significant. 402 IJ.8. at 18-20.
Said the Court (id. at 18):
In Green, we pointed out that existing policy and
practice with regard to faculty, staff, transportation,
extra-curricular activities, and facilities were among
the most important indicia of a segregated system.
391 U.S. at 435. Independent of student assignment,
where it is possible to identify a “white school” or a
“Negro school” simply by reference to the racial com
position of teachers and staff, the quality of school
buildings and equipment, or the organization of sports
activities, a prima facie case of violation of substan
tive constitutional rights under the Equal Protection
Clause is shown.
79
The Court also found that the school authorities had in
fact played a segregative role in the patterns of residen
tial development and urban growth. To the school authori
ties’ parroting of “ residential patterns over which we have
no control,” a unanimous Court responded (402 U.S. at
20- 21) :
The construction of new schools and the closing of
old ones are two of the most important functions of
local school authorities and also two of the most com
plex. They must decide questions of location and ca
pacity in light of population growth, finances, land
values, site availability, through an almost endless
list of factors to be considered. The result of this
will be a decision which, when combined with one
technique or another of student assignment, will de
termine the racial composition of the student body in
each school in the system. Over the long run, the
consequences of the choices will be far reaching.
People gravitate toward school facilities, just as
schools are located in response to the needs of people.
The location of schools may thus influence the pat
terns of residential development of a metropolitan
area and have important impact on composition of
inner-city neighborhoods.
In the past, choices in this respect have been used
as a potent weapon for creating or maintaining a state-
segregated school system. In addition to the classic
pattern of building schools specifically intended for
Negro or white students, school authorities have some
times, since Brown, closed schools which appeared
likely to become racially mixed through changes in
neighborhood residential patterns. This was some
times accompanied by building new schools in the
areas of white suburban expansion farthest from Ne
gro population centers in order to maintain the sep
80
aration of the races with a minimum departure from
the formal principles of “neighborhood zoning.” Such
a policy does more than simply influence the short-
run composition of the student body of a new school.
It may well promote segregated residential patterns
which, when combined with “neighborhood zoning,”
further lock the school system into the mold of sep
aration of the races. Upon a proper showing a dis
trict court may consider this in fashioning a remedy.
In ascertaining the existence of legally imposed
school segregation, the existence of a pattern of school
construction and abandonment is thus a factor of
great weight.
Finally, the Court assessed the substantial, though not
precisely definable, impact that flows directly from a long
standing policy and practice of racial separation (id. at
28) :
All things being equal, with no history of discrimina
tion, it might well be desirable to assign pupils to
schools nearest their homes. But all things are not
equal in a system that has been deliberately con
structed and maintained to enforce racial segregation.
The remedy for such segregation may be administra
tively awkward, inconvenient, and even bizarre in
some situations and may impose burdens on some;
but all awkwardness and inconvenience cannot be
avoided in the interim period when remedial adjust
ments are being made to eliminate the dual school
systems.
While observing that “ [o]ne vehicle can carry only a
limited amount of baggage” (id. at 22), and that
[w]e are concerned in these cases with the elimination
of the discrimination inherent in the dual school sys
81
tem, not with myriad factors of human existence which
can cause discrimination in a multitude of ways on
racial, religious or ethnic grounds
(id.), the Court recognized that “desegregation of schools
ultimately will have impact on other forms of discrimina
tion.” Id. at 22-23. After all, segregation of the schools
had certainly had a similar impact in facilitating other
modes of discrimination. The Court therefore found it
unnecessary to “ reach in this case the question whether a
showing that school segregation is a consequence of other
types of state action, without any discriminatory action
by the school authorities, is a constitutional violation re
quiring remedial action by a school desegregation decree.”
Id. at 23 (emphasis added).
In combination, the factors thus assessed by the Court
presented “ a ‘loaded game hoard’ ” which often could not
he effectively counteracted merely with “ ‘ [r]acially neu
tral’ assignment plans.” Id.; see also North Carolina State
Bd. of Educ. v. Swann, 402 U.S, 43, 45-46 (1971) (A “ ‘color
blind’ . . . requirement, against the background of segre
gation, would render illusory the promise of Brown. . . . ” ).
Accordingly, the Court required school authorities and
the courts to “make every effort to achieve the greatest
possible degree of actual desegregation . . . ” 402 U.S. at
26; see also Davis v. Board of School Comm’rs, 402 U.S.
33, 37 (1971), which adds, “ taking into account the prac
ticalities of the situation.” The Court thus squarely placed
the responsibility for school segregation in a system with
a history of state-imposed racial separation on the school
authorities (402 U.S. at 26):
in a system with a history of segregation the need for
remedial criteria of sufficient specificity to assure a
school authority’s compliance with its constitutional
82
duty warrants a presumption against schools that are
substantially disproportionate in their racial compo
sition. Where the school authority’ s proposed plan for
conversion from a dual to a unitary system contem
plates the continued existence of some schools that
are all or predominantly of one race, they have the
burden of showing that such school assignments are
genuinely nondiscriminatory. The court should scru
tinize such schools, and the burden upon the school
authorities will be to satisfy the court that their racial
composition is not the result of present or past dis
criminatory action on their part.
Federal judicial attention was first directed at Charlotte
when the plaintiffs there filed their initial complaint in
1965, whereas Dayton did not come under such scrutiny
until 1972. Also, Charlotte carried out its program of
systematic pre-Brown discrimination pursuant to written
state law, whereas Dayton accomplished essentially the
same result through local policy and practice in contra
vention of state law. But, as we shall show, there is no
constitutional significance in these differences—unless the
Court was wrong in its conclusion in Keyes v. School Dist.
No. 1, 413 U.S. 189 (1973), that local action can create a
dual school system, within the contemplation of Broivn,
just as effectively as statutory command. For after Brown,
Dayton did pretty much the same thing that Charlotte did:
it ignored and resisted its Brown II duty; and, by covert
policy and persistent practice, it perpetuated and com
pounded its officially inflicted system of -public school seg
regation from Brown through the time of trial. As a
result, as we demonstrate in the Argument, Swann applies
full force to this case.
83
Summary o f Argument
I .
A. Keyes v. School List. No. 1, 413 U.S. 189 (1973), was
clearly right in its holding that discriminatory official con
duct in violation of ostensible state law can cause as much
harm and have as much impact as discriminatory state
legislation. This holding is in precise accord with the in
tent of the framers of the Fourteenth Amendment and
the Reconstruction implementing legislation pursuant to
which this case is brought, as frequently recognized by this
Court. E.g., Ex Parte Virginia, 100 U.S. 339 (1880); Yick
Wo v. Hopkins, 117 U.S. 356 (1886); Home Tel. & Tel. Co.
v. City of Los Angeles, 227 U.S. 278 (1913); Monroe v.
Pape, 365 U.S. 167 (1961). When this Court outlawed
state-imposed school segregation in Brown v. Board of
Educ., 347 U.S. 483 (1954), it announced a constitutional
principle that was as binding with respect to the local seg
regative policies, practices, customs and usages of Dayton
school authorities as it was the statutory dual systems of the
South. The Dayton Board could hardly feign ignorance of
the applicability of Brotvn, because Ohio school authorities
were expressly informed of Brown’s meaning by an opinion
of the Ohio Attorney General and a decision of the United
States Court of Appeals for the Sixth Circuit in 1956.
Opinion No. 6810 (July 9, 1956) (App. 331-40-Ex.);
Clemons v. Board of Educ. of Hillsboro, Ohio, 228 F.2d
853 (6th Cir. 1956) ; id, at 859 (Stewart, J., concurring).
B. l. At the time of this Court’s decision in Brown v.
Board of Educ., 347 U.S. 483 (1954), the Dayton Board of
Education was pursuing a systematic program of racial
separation in the public schools which constituted the dis
trict basically a dual school system. Defendants’ discrimi
natory policies and practices extended throughout the
84
system and infected every facet of school administration.
This conclusion does not rest on circumstantial evidence
(or the standards for analyzing that type of evidence set
out in such cases as Village of Arlington Heights v. Metro
politan Housing Dev. Corp., 429 U.S. 252 (1977), and
Washington v. Dams, 426 U.S. 229 (1976)); nor does this
conclusion in any way need support from the evidentiary
and burden-shifting principles articulated in Keyes.
Rather, the conclusion is compelled as a matter of direct
and largely uncontroverted evidence.
B.2. In terms of actual segregative impact, the Dayton
Board’s discriminatory policies and practices over the
course of the half century preceding Brown are constitu
tionally indistinguishable from the segregation laws invali
dated in 1954. The Board’s actions dramatically identified
certain schools and certain parts of the system for the edu
cation of black students only; reciprocally, other schools
and other parts of the system were earmarked for whites.
The result was not perfect apartheid, but it was over
whelming state-imposed segregation nonetheless. Just as
surely as in Charlotte, the Dayton Board, through its offi
cial actions, had prescribed an environment and a mind-set
of racially separate public schooling with intractable, far-
reaching consequences.
B.3. Contrary to the contention of petitioners, we do not
attach decisive evidentiary significance to the year 1954.
But that year does have singular legal significance: Upon
the decision in Brown, the Dayton Board’s federal consti
tutional responsibilities were drastically altered. What the
Board did following Brown must therefore be evaluated in
light of the Board’s duty to effectuate “ the transition to a
system of public education freed of racial discrimination,”
Brown II, 349 U.S. 294, 299 (1955), in accordance with the
evolving guidelines laid down by this Court with increasing
85
specificity during the years between Brown II and Swann
v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S, 1 (1971).
Instead of complying with its constitutional duty, however,
the Board continued to pursue many of its overt segrega
tion practices, supplemented by covert discriminatory prac
tices which both perpetuated and expanded the dual
system.
II.
A. Now that the court of appeals has confronted the
complete record and properly found an intended dual sys
tem at the time of Brown that Dayton school authorities
thereafter perpetuated through the time of trial, the “ in
cremental segregative effect” inquiry described in Dayton
I, 433 U.S. at 420, does not apply by the express terms of
the Court’s decision. Whatever the meaning of this cryptic
phrase for the remedial inquiry in cases “where mandatory
segregation by law of the races has long since ceased”
(id.), it has no meaning independent of Green, 391 U.S. at
438, Swami, 402 U.S. at 24-26, and Keyes, 413 U.S. at 213-14,
in this case where just such officially imposed systemwide
segregation persisted through the time of trial in the form
of a basically dual system created and maintained by local
school authorities. In the context of such a systemwide
violation having a continuing systemwide impact, a system-
wide remedy is required by Dayton I, 433 U.S. at 420, citing
Keyes. 413 U.S. at 213. That such dual schooling was
imposed both prior to and after 1954 in contravention of
state law rather than pursuant to a state statute is irrele
vant. As a result, the remedial inquiry here is controlled
by Swann and Green v. County School Bd., 391 U.S. 430
(1968); adherence to the principles there enunciated
dictates the need for a systemwide desegregation remedy,
as the court of appeals correctly concluded.
8 6
B. At no time between Brown and the time of trial did
the Board take any action which was either designed to
effectuate, or which did in fact effectuate, the transition to
a non-discriminatory system of schooling. If the phrase
“isolated instances” has any relevance to this case, it is as
a description of Board actions resulting in desegregation.
Even if the Board’s post -Brown conduct is deemed to have
been “racially neutral” (which it demonstrably was not),
therefore, Swann and Green impose the obligation to bring
about a maximum amount of desegregation within the
practicalities of the situation, at least in the absence of a
convincing demonstration by the Board that the one-race
status of specific schools is not attributable in any signifi
cant respect to present or past discrimination by school
authorities. The Board here, of course, made no such show
ing; instead, if anything, intentionally segregative conduct
following Brown not only perpetuated, but also further
aggravated the continuing racially dual system of schooling
“by intensifying the stigma of implied racial inferiority.”
Wright v. Council of the City of Emporia, 407 U.S. 451,
461 (1972); see also United States v. Scotland Neck City
Bd. of Educ., 407 U.S. 484, 492 (1972) (Burger, C. J.,
concurring).
III.
A. Alternatively, if the Court determines that the
Board’s pre-Brown program of discrimination resulted in
something constitutionally less than a dual school system,
the conclusion is still inescapable on this record that the
Dayton Board was at the time of trial operating a school
system intentionally segregated on a systemwide basis,
necessitating a systemwide remedy. Under Keyes, the di
rect evidence of an official pr e-Brown segregation policy
coupled with both direct and circumstantial evidence of
post-Brown intentional discrimination raises a strong in-
87
ference that, as of the time of trial, the longstanding and
continuing purposeful discrimination on the part of the
school authorities was at least one of the primary and
proximate causes contributing to the pervasive segregation
of the Dayton schools. In light of the extensive and wide-
ranging nature of this evidence, the Board bore the burden
of disproving this prima facie case. Keyes, 413 U.S. at 203
and 208-13. The Board did not come close to meeting that
burden: it totally failed to show that its systematic pro
gram of segregation was not intended.
B. Plaintiffs, under Swann and Keyes, are thus entitled
to a systemwide desegregation remedy, except to the ex
tent that the Board can clearly demonstrate that specific
one-race “ school assignments are genuinely nondiscrimina-
tory”-—i.e., “not the result of present or past discrimina
tory action on their part,” Swann, 402 TJ.S. at 26, despite
the Board’s proven intent to segregate the entire system.
Keyes, 413 U.S. at 213-14. The “ incremental segregative
effect” question of Dayton I, no matter whose burden it is,
has no meaning in such a context independent of the stan
dards for judging causation and remedy in Keyes and
Swann. Where, as here, the nature and extent of the viola
tion is systemwide intentional segregation, the proper
scope of the remedy is actual systemwide desegregation.
Dayton 1, 433 U.S. at 420; Keyes, 413 at 213-14; Swann, 402
U.S. at 24-26.
IV.
The decisions by this Court in this case and in the com
panion Columbus case do not relate to correcting any ab
errant review provided by a single circuit, as charged by
petitioners. Instead these cases will determine whether this
Court’s commitment to “root and branch” relief from inten
tional segregation within local school districts is to con
8 8
tinue in any meaningful form as the constitutional law of
this entire Nation. At stake, therefore, is whether Brown
is to be rendered a hollow declaration by gutting Green,
Swann, and Keyes and transforming Dayton I into a talis-
manic justification for limiting any school relief to the
current and almost complete level of residential segrega
tion. We respectfully submit that, instead, these cases are
due to be affirmed so that this and future generations of
schoolchildren will not again have to live under a new
regime of “ separate and equal.”
ARGUMENT
I.
At the Time of Trial in This Case the Dayton Board
of Education Was Operating a Segregated School Sys
tem Within the Meaning of B row n v. Board o f Educa
tio n ; That System Had Existed Throughout This Cen
tury; It Became Unconstitutional Upon B row n ’s Correct
Interpretation of the Fourteenth Amendment in 1954;
But, Instead of Being Dismantled, Thereafter It Was
Deliberately Compounded Through the Time of Trial.
The parties have taken approaches to the record evi
dence that are wholly irreconcilable. There has been no
offer of compromise from either side, and no position taken
which is capable of compromise. This Court is left, as the
lower courts have been, with no immediately apparent
middle ground. The reason is this: The Dayton Board
cannot win without questioning the sincerity of Brown and
its progency, and in effect contending that this compara
tively brief commitment to equal protection of the laws
has been “a vain thing.” 28
28 Cf. Screws v. United States, 325 U.S. 91, 100 (1945).
This fundamental conflict in the positions of the par
ties has been disguised somewhat by petitioners’ arguments
(Pet. Br. 13-26) concerning the nature and role of evi
dentiary presumptions to assist in determining the pres
ence or absence of segregative intent. The judgment of
the court of appeals, however, does not depend on the use
of any presumption concerning intent, and this Court’s
decision in this case need not turn on such issues (see
discussion at pp. 90-93, infra). And petitioners’ “ legal
presumptions” argument—e.g., that “ the Sixth Circuit
creat[ed] . . . a legal presumption of systemwide and con
tinuing segregative intent and effect by juxtaposing pre-
1954 actions with a current condition of racially imbal
anced school populations” (Pet. Br. 13)—is false on its
face. Of greater relevance to this Court’s review and
understanding of the fundamental conflict here at issue,
therefore, is the petitioners’ suggested approach to analyz
ing the basic factual question of whether past or present
intentionally discriminatory school hoard conduct con
tributed to the creation or maintenance of the current con
dition of school segregation existing at the time of trial.
The controlling assumptions in petitioners’ approach are
as follows: First, the “ focus of judicial inquiry should be
on conditions existing at the time of suit” (e.g., Pet. Br.
15), not on the historic process (including school board
conduct) leading to the continuing condition of one-race
schooling. Second, such extreme school segregation is a
“natural” even “ inevitable” condition, rarely if ever at
tributable to the action of school authorities as compared
with the “ forces” of residential segregation. E.g., Pet. Br.
45-47. It is, therefore, not probable that past school board
administrative policies and practices, even where they have
been racially discriminatory, contributed much to the de
velopment of present racial patterns; acts of intentional
and even across-the-board discrimination occurring fifteen
90
to thirty years ago (when segregation was not only the
official policy hut also the accepted community standard)
probably are not connected in any way with the continuing
and current condition of segregation. E.g., Pet. Br. 46-54.
Third, each item of evidence of intentionally segregative
school hoard action should he evaluated (1) in almost com
plete isolation from the whole record of school discrim
ination (and even other evidence relating both to intent
and to the development and growth of any system of basi
cally dual schooling) and (2) in the context of the historic
and continuing residential segregation (for which, peti
tioners’ argue, they bear neither responsibility nor input).
E.g., Pet. Br. 27-39, 45-54.29
This is the gist of petitioners’ case. It was accepted in
its entirety by the district court and condemned to the
same degree by the court of appeals. It requires an ap
proach to the evidence that blinks reality. It entails as
sumptions about the effect of educational policy implemen
tation that do not accord with observed history. It trivial
izes the impact of an official act of racial discrimination
and puts itself at odds with human knowledge and under
standing—and with Brown v. Board of Education. It is so
wrong that if it is right, then petitioners and their friends
of Court are also correct in their implicit contention that
the plaintiffs in cases such as this ought to prevail only
in the most extraordinary of circumstances.
In contrast, from the time of trial to this day, respon
dents have consistently advanced, as their principal theory,
the contention that the record establishes beyond doubt
that petitioners and their predecessors had basically com
29 With these blinders in place, such an approach necessarily
limits _ any finding of violation to current school board practices
that increase the school segregation above and beyond existing
residential segregation.
91
mitted the same wrong, and therefore were under the same
constitutional duty, as the school systems involved in
Brown. We have urged alternative theories, and they are
not waived here. But our primary argument, through four
rounds in the courts below and one round here, has been
that Brown, Green and Swann apply to this case as a
matter of fact.30 This ease was not tried on a principal
theory which was dependent upon concepts of prima facie
case, presumptions, and shifting burdens of production
and persuasion.31 Although Keyes was welcome support,32
plaintiffs’ claim for relief did not then, and does not now,
rest on Keyes’ articulation and application of those con
cepts. The only aspect of the holding in Keyes which is
relevant to this theory is a rule that is undisputed, and
30 Petitioners are wrong in their charge that this theory “was
first suggested in the amicus brief filed by the Department of Jus-
tice when this litigation came before the Court in 1977.” Pet. Br.
18. The argument was our first and principal argument in Dayton I,
see pp. 58-71 of Brief for Respondents in No. 76-539, as it was on
our first appeal to the Sixth Circuit leading up to Brinkman I.
See Brief for Plaintiffs-Appellants in 6th Cir. Nos. 73-1974-75.
31 Argument III, infra, presents our alternative equal-protection
theory based on such evidentiary considerations; it need not be
reached if the Court agrees with our Arguments I and II that the
Dayton Board created and maintained a dual system. (In addi
tion, the alternative Thirteenth Amendment and statutory theories
based on 42 U.S.C. §§1981-1988 should, of course, await at least
some consideration in the courts below (see note 3, supra) before
review by this Court.)
32 This case was tried between 13 November and 1 December
1972, and the district court’s first liability decision was filed on
7 February 1973 (Pet. App. la ), all prior to the announcement of
the Keyes decision on 21 June 1973, 413 U.S. 189. In its Supple
mental Order on Remedy (Pet. App. 26a), filed 13 July 1973, the
district court “ studied” Keyes (Pet. App. 28a) and, apparently
in recognition of the fact that its approach was incompatible with
the majority opinion in Keyes, the court placed exclusive reliance
on the dissenting part of Mr. Justice Powell’s separate ̂ opinion
(Pet. App. 29a-30a, 31a) and Mr. Justice Rehnquist’s dissenting
opinion. Pet. App. 31a.
92
which has not been the subject of serious debate since
Ex parte Virginia, 100 U.S. 339 (1880): that the official
act of one clothed with state authority can be as harmful
—can be as unconstitutional under the Fourteenth Amend
ment—as the official policy of a state expressed in written
statute and constitution; indeed, the practical and consti
tutional result can be the same even when the official act
contravenes state “law.” Even those who do not embrace
Green and Swann concede that:
It is quite possible, of course, that a school district
purporting to adopt racially neutral boundary zones
might, with respect to every -such zone, invidiously
discriminate against minorities, so as to produce sub
stantially the same result as was produced by the
statutorily decreed segregation involved in Brown. If
that were the case, the consequences would neces
sarily have to be the -same as were the consequences
in Brown.
Keyes v. School Dist. No. 1, 413 U.S. 189, 256 (1973) (Rehn-
quist, J., dissenting). How to assess whether such a re
sult obtains is the issue that divides the parties, and ap
parently the one that divides the Court.
In the Statement of the Case, supra, we have traced the
history of segregation in the Dayton public schools from
“root” to “branch,” Green, 391 U.S. at 438—the only logical
way to evaluate the growth of anything. This approach to
the record is no more than recognition of the plain fact that
“present events have roots in the past,” United States v.
Oregon State Med. Soc., 343 U.S. 326, 332 (1952), and that
past conduct is significant because “it illuminates or ex
plains the present and predicts the shape of things to
come.” Id. at 333. Accord, e.g., Continental Ore. Co. v.
Union Carbide & Carbon Corp., 370 U.S. 690, 709-10
93
(1962); Standard Oil Co. v. United States, 221 U.S. 1, 75-
77 (1911); Kansas City Star Co. v. United States, 240 F.2d
643, 650-51 (8th Cir. 1950).33 As a corollary to this sound
method of analysis, it is essential that each part of the
record be viewed in its total context and that plaintiffs’
claims not be approached “as if they were [many] com
pletely separate and unrelated lawsuits.” Continental Ore
Co. v. United States, supra, 370 U.S. at 698-99. What the
Court said there applies here with equal force (id. at 699):
In cases such as this, plaintiffs should be given the
full benefit of their proof without tightly compart
mentalizing the various factual components and wiping
the slate clean after scrutiny of each. “ . . . [T]he char
acter and effect of a conspiracy are not to be judged
by dismembering it and viewing its separate parts, but
only by looking at it as a whole. United States v. Pat
ten, 226 U.S. 525, 544 . . . ; and in a case like the one
before us, the duty of the [court] was to look at the
whole picture and not merely at the individual figures
in it.” American Tobacco Co. v. United States, 147
F.2d 93, 106 (CA 6th Cir.). See Montague <& Co. v.
Lowry, 193 U.S. 38, 45, 46.
Accord, Keyes, 413 U.S. at 200, 203, 207-08.
33 In Keyes, 413 U.S. at 210-11, the Court confirmed the obvious
relevance of this analytical principle to school segregation cases
such as this. The Court, referring to Swann, 402 U.S. at 31-32, said
(413 U.S. at 211) :
We made it clear, however, that a connection between past seg
regative acts and present segregation may be present even when
not apparent and that close examination is required before con
cluding that the connection 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.
94
A. A Dual School System, Within the Prohibition of the
f ourteenth Amendment and B row n v. B oa rd o f Educa-
May Be Brought Into Being as Effectively by Local
Admimstrattve Policy and Practice as by State Constitu-
find Z Z nU t0ry an,latC; Such a C«mot Stand
s “ F° Urteenlh Amendment Even if It Also Violates
Petitioners have placed much reliance on the fact that
no state law has not authorized racially separate schools
f ° ™ yearS' But’ for even longer than that it has been
settled that official conduct which does not afford equal
protection of the laws is damned by the Fourteenth Amend
ment just as much as written state law which produces that
result; and this is so even when such official conduct vio-
ates state law. In Ex parte Virginia, 100 U.S. 339 (1880)
he Court invoked the Fourteenth Amendment against a
state judge who had “exclude[d] and fail[ed] to select as
grand and petit jurors certain [black] citizens . . . possess
ing all other qualifications prescribed by law” (id. at 340)
even though “he acted outside of his authority and in direct
The r ° n ^ V Pint °f the State statute” Id. at 348._e Court held that “immunity from any such [race] dis
crimination is one of the equal rights of all persons, and
that any withholding it by a State is a denial of the equal
pro ec ion o the laws, within the meaning of the [Four-
enth] Amendment.” Id. at 345. In words that are now
amiliar, the Court defined the functional operation of the
prohibitions of the Amendment (id. at 346-47):
They have reference to actions of the political body
denominated a State, by whatever instruments or in
w atever modes that action may be taken. A State acts
y its legislate, its executive or its judicial authori
ties. It can act m no other way. The constitutional pro
vision, therefore, must mean that no agency of the
State, or of the officers or agents by whom its powers
95
are exerted, shall deny to any person within its juris
diction the equal protection of the laws. Whoever, by
virtue of public position under a state government, de
prives another of property, life or liberty without due
process of law, or denies or takes away the equal pro
tection of the laws, violates the constitutional inhibi
tion ; and as he acts in the name and for the State, and
is clothed with the State’s power, his act is that of
the State. This must be so, or the constitutional pro
hibition has no meaning. Then the State has clothed
one of its agents with power to annul or to evade it.
This principle has permeated Fourteenth Amendment
jurisprudence ever since. See also Virginia v. Rives, 100
U.S. 313 (1880); Neal v. Delaware, 103 U.S. 370 (1881);
Tick Wo v. Hopkins, 117 U.S. 356 (1886). It has been fully
applied in behalf of corporate due process. See, e.g., Home
Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278 (1913);
Raymond v. Chicago Union Traction Co., 207 U.S. 20
(1970). And with at least equal force, it has been re
peatedly employed in the protection of the human rights
secured by the Amendment and its implementing legisla
tion. See, e.g., Mooney v. Holohan, 294 U.S. 103 (1935);
United States v. Classic, 313 U.S. 299 (1941); Screws v.
United States, 325 U.S. 91 (1945); Monroe v. Pape, 265
U.S. 167 (1961); Adickes v. S. H. Kress & Co., 398 U.S.
144 (1970).34
34 Of particular significance are the Court’s decisions construing
42 U.S.C. §1983, one of the statutes pursuant to which this case is
brought. Section 1983 affords a federal-court cause of action against
“ [e]very person who . . . [acts] under color of any statute, ordi
nance, regulation, custom or usage, of any State . . . [and thereby]
subjects, or causes to be subjected, any cititzen . . . to the depriva
tion of [Fourteenth Amendment rights] . . . . ” This section de
rives from §1 of the Civil Rights Act of April 20, 1971, 17 Stat. 13,
expressly enacted to enforce the Amendment within three years
following its adoption. One of the recurring objections to the 1871
When Brown v. Board of Education was decided in 1954,
therefore, it announced a substantive interpretation of the
Act was the contention that the Fourteenth Amendment operated
against the states only with respect to discriminatory legislation;
that the Amendment, in the words of one opponent, is “prohibitory
only on the legislation of the States.” Cong. Globe, 42d Cong., 1st
Sess. 455 (1871) (Rep. Cox). This position accordingly held that
Congress’ authority to enforce the Fourteenth Amendment did not
extend to forms of state action other than to discriminatory or
otherwise unlawful legislation. See, e.g., id. at 420 (Rep. Bright),
429 (Rep. McHenry), 600 (Sen. Saulsbury), 661 (Sen. Bickers),
app. 160 (Rep. Golladay), app. 208-09 (Rep. Blair of Missouri),
app. 231 (Sen. Blair), app. 259 (Rep. Holman) ; see especially the
argument of Senator Thurman, leader of the opposition in the Sen
ate, app. 221. The proponents of the legislation flatly rejected this
view of the Fourteenth Amendment. Throughout the debates they
focused on the conduct of state and local officials, institutions and
other instrumentalities of state government. “ The laws must not
only be equal on their face,” said Representative (later President)
Garfield, “but they must be so administered that equal protection
under them shall not be denied to any class of citizens, either by
the courts or the executive officers of the State.” Id. at app. 153.
Clearly it was with the administration of state laws that they were
most concerned. See also, e.g., id. at 321 (Rep. Stoughton), 334-35
(Rep. Hoar), 375 (Rep. Lowe), 394 (Rep. Rainey), 426 (Rep.
McKee), 429 (Rep. Beatty), 444-45 (Rep. Butler), 459 (Rep. Co
burn), 482 (Rep. Wilson of Indiana), 607-08 (Sen. Pool), 696-97
(Sen. Edmunds), app. 72 (Rep. Blair of Michigan), app. 80 (Rep.
Perry), app. 147 (Rep. Shanks), app. 152-53 (Rep. Garfield), app.
182 (Rep. Mercur), app. 185-86 (Rep. Platt), app. 300 (Rep.
Stevenson), app. 309-10 (Rep. Maynard), app. 314-15 (Rep. Bur-
chard) .
Thus, in Monroe v. Pape, supra, 365 U.S. at 180 {see also id, at
193 (Harlan, J., concurring)), the Court was compelled to hold:
It is abundantly clear that one reason the legislation was passed
was to afford a federal right in federal courts because, by rea
son of prejudice, pas'sion, neglect, intolerance or otherwise, state
laws might not be enforced and the claims of citizens to the
enjoyment of rights, privileges, and immunities guaranteed by
the Fourteenth Amendment might be denied by the state
agencies.
This conclusion is reinforced by §1983’s reference to “ any . . .
custom, or usage, of any State.” Construing this phrase in Adickes
v. 8. B. Kress & Co., 398 U.S. 144, 167-68 (1970), Mr. Justice
Harlan wrote for the Court:
Congress included customs and usages within its definition of
law in §1983 because of the persistent and widespread discrim-
97
Fourteenth Amendment that was as applicable to the
racially discriminatory policies, practices, customs and us
ages of the Dayton school authorities as it was to the boards
of education involved in Brown which were operating seg
regated schools pursuant to the written command or
authority of state law. Nothing in Brown’s holding—that
state-imposed segregation of the public schools is pro
scribed by the Equal Protection Clause of the Fourteenth
Amendment—so much as intimates that its application
was confined only to such segregation brought about
through written law. See also note 43, infra. I f there was
any room for such a view, it was promptly foreclosed in
Cooper v. Aaron, 358 U.S. 1 (1958), where the Court, after
quoting from Ex parte Virginia, supra, declared that “ the
prohibitions of the Fourteenth Amendment extend to all
action of the State denying equal protection of the laws;
whatever the agency of the State taking the action, . . . or
whatever the guise in which it is taken. . . .” 358 U.S. at 17.
The Attorney General of Ohio had comprehended this
plain meaning even before the decision in Cooper v. Aaron.
In Opinion No. 6810 (9 July 1956), advising the State
Board of Education that it should withhold state support
from any school district practicing racial segregation, he
said (App. 339-Ex.):
The term “law” as used in Section 3317.14, Revised
Code, forbidding the distribution of state funds to
school districts which have not “ conformed with the
inatory practices of state officials. . . . Although not authorized
by written law, such practices of state officials could well be
so permanent and well settled as to constitute a ‘custom or
usage’ with the force of law.”
The Fifteenth Amendment and its implementing legislation have
been construed in a similar fashion. See, e.g., Terry v. Adams, 345
U.S. 461 (1953); Smith v. Allwright, 321 U.S. 649 (1944).
98
law,” is used in the abstract sense and embraces the
aggregate of all those rules and principles enforced
and sanctioned by the governing power in the com
munity. Such term embraces the equal protection pro
vision in the Fourteenth Amendment of the Constitu
tion of the United States under which the segregation
of pupils in schools according to race is forbidden.
At about the same time, the Court of Appeals for the
Sixth Circuit also informed Ohio school districts that they
were subject to Brown. Clemons v. Board of Educ. of Hills
boro, 228 F.2d 853 (6th Cir. 1956).
Thus, the principle laid down in Brown was immediately,
and at all times thereafter, binding on the Dayton school
authorities.35 The fact that they and their successors were
not brought into federal court to account for their actions
until 1972 no more relieves them of their constitutional
duty than did the failure of the plaintiffs in Charlotte
(Swann) and New Kent County (Green) to initiate federal
suit before 1965. The rights secured in Brown were not
made available only upon demand.
When Keyes expressly held in 1973 that Brown is not
limited in its application to public school segregation
brought about by written state law, the Court merely ad
hered to what had been squarely decided a century ago in
constitutional and legislative design and intent, and re
affirmed in a host of intervening judicial decisions. This
case must be decided in accordance with those pronounce
ments.
35 The authors of Brown would be astounded to read that “ [t]hat
decision did not, however, create a new constitutional principle
that was valid for the post-1954 era and inapplicable to the years
before 1954 ” Pet. Br. 17.
99
B. At the Time of B row n and Ever After Petitioners Oper
ated a Dual School System in Fact.
We show here that for forty years prior to Brown the
Dayton Board—in only arguable and partial conformity
with the separate-but-equal doctrine of federal law, Plessy
v. Ferguson, 163 U.S. 537 (1896), but contrary to state
law—systematically created and operated, pursuant to
plain old-fashioned racially discriminatory purpose, a seg
regated school system. Between Brown and the trial of this
case, that system was deliberately perpetuated and ex
panded, though in some instances in more subtle ways.
1. T h e B oard ’s Pre-Brown Conduct.
Our case, and the record of intentional school segrega
tion in Dayton, began in 1912, when petitioners’ predeces
sors operated a segregated all-black class, with an assigned
black teacher, Ella Lowrey, at the rear door of the “white”
Garfield school in West Dayton. At least this early, then,
the Dayton Board, through its official action based solely
on skin color, proclaimed that there was something wrong
with allowing black and white school children to learn to
gether. This proclamation received renewed emphasis when
black children at Garfield were transferred to a four-class
frame building located in back of the main building, soon
expanded by a two-room portable which was later replaced
with a four-room permanent structure, totalling eight all
black classes, to which were assigned eight black teachers,
wholly segregated from the white teachers and students in
the principal school building. This message of segregation
as official educational policy was dramatically reinforced
during this period when school authorities attempted to
chase Robert Reese and his sister back across the Miami
River to the blacks-only Garfield “annex” to prevent them
from attending a “white” school—action which their father
100
fortunately had the wherewithal to prevent (as to his chil
dren only) through a lawsuit in state court. Despite the
success of this litigation, official discrimination continued
unabated and was further supplemented by the rigid prac
tice of never allowing black teachers to teach white chil
dren, by discriminatory treatment of the few black stu
dents who were able to attend racially “mixed” classes, and
by assigning black orphanage children from across town
to the all-black classes at Garfield. Finally, in the early
1930’s the Board transferred white teachers and students
to other schools and converted the entire Garfield complex
into a blacks-only school. See pp. 13-17, supra.
An official policy, practice, custom and usage of public
school segregation was thus set in place on a systemwide
basis. What happened thereafter followed the same pat
tern: the black pupil population continued to grow, and
with it grew the Board’s segregation policy; black pupils
and teachers were directed, through official action, to parts
of the system exclusively set aside for them; and wherever
black children cropped up in a part of the system not in
tended for them, they were subjected to racially discrimina
tory within-school and extracurricular treatment.
In the mid-1930’s all of the white teachers and students
in the Willard elementary school were transferred to other
schools, and Willard was converted into another school for
black teachers and black children only. See p. 17, supra.
At about the same time, Dunbar High School was con
structed and opened on a systemwide blacks-only basis.
The principal and staff all were black. Only black students
were assigned—directly, through counselling and discipli
nary procedures, and through psychological coercion—
from all over the system. Dunbar had no attendance zone,
but instead was a systemwide blacks-only school (which
continued in fact until 1962). White students living near
101
the Dunbar school were assigned farther away to predomi
nantly white schools; these high schools also had no atten
dance boundaries and drew their students on a systemwide
basis prior to 1940. See pp. 17-19, supra.
Between 1943 and 1945 Wogaman, like Willard and Gar
field before it, was converted into an all-black elementary
school. See pp. 19-20, supra. These segregative practices
were reinforced by insidious practices (in-school discrimi
nation, explicitly segregated or whites-only recreation faci
lities, race-based pupil counselling procedures) which
discouraged black students from attending predominantly
white schools in more than token numbers (see pp. 15-16,
18-19, supra), and by strict adherence to the policy of not
allowing black teachers to teach white children under any
circumstances. See pp. 13-15, 17, 19-20, supra. Supple
menting these pervasive devices was joint participation
by the Board with the official discrimination of public hous
ing authorities. See pp. 20-21, supra.
The result was that by 1951-52 (the last year prior to
1963-64 for which enrollment data by race are available),
83% of all white students attended schools that were all-
or virtually all-white; 54% of the black students were as
signed 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. See pp. 21-22, supra.36
36 To this point, neither the summary of factual conclusions set
out in text nor the underlying subsidiary facts are in significant
dispute. They are the subject of largely uncontradicted record evi
dence, the essence of which was not contradicted by the district
court, although that court selected petitioners’ tactic (see Pet. Br.
16, 50) of either ignoring these facts or alluding to them at random
as though they were of anecdotal interest only. The court of ap
peals correctly sized up the significance of this portion of the record.
See Pet. App. 195a-203a.
102
In 1951 and 1952 the Board implemented two major ac
tions having profound racial consequences: it put its there
tofore unwritten hut nonetheless explicit policy o'f racial
separation in the form of written law through formaliza
tion and slight modification of the systemwide policy of
faculty segregation; and, through a series of complex, hut
tightly controlled, interlocking maneuvers, reorganized the
West Side schools in such manner that, coupled with the
other aspects of the segregation policy which had already
hemmed 54% of the black pupils and all of the black teach
ers into educational ghettos, Dayton continued to be, and
was at the time of Brown, a dual school system in every
sense but name. The schemes worked as follows.37 38
In the 1951-52 school year, the Board, through the Super
intendent, announced a policy which modified, and for the
first time in writing acknowledged the existence of, its rigid
policy of never allowing black teachers to teach white chil
dren. The modification, preceded by the incredible state
ment that the Board “is opposed to racial segregation in
the public schools” (App. 182-Ex.), promised in self-con
tradictory terms “to continue and enlarge gradually the
program of integration of the educational staff with the
objective of having . . . approximately the same proportion
of negro teachers as there are negro pupils in the Dayton
schools.” Id.M The policy statement then seeks to absolve
the school authorities of the previous forty years of official
87 The basic facts which underlie the summary which follows in
text are also not in significant dispute (see note 36, supra). But
petitioners and the district court have viewed them in such isola
tion from the record and reality, and have so twisted their context
and distorted their meaning, as to necessitate the concession from
us that these are disputed “ factual matters.”
38 Thus the Board defined “ integration” as having in its employ
enough black teachers to teach the black pupils in the system. The
southern dual systems at this time were following a similar “ inte
gration” program.
103
racism and the twenty coming years of segregated school
ing by implying that snch segregation merely reflects the
will of the black community as well as the white (id .):
The school administration will make every effort to
introduce some white teachers in schools in negro areas
that are now staffed by negroes, but it will not attempt
to force white teachers, against their will, into these
positions.
The administration will continue to introduce negro
teachers, gradually, into schools having mixed or white
populations when there is evidence that such communi
ties are ready to accept negro teachers.
The Board of Education does not consider a school
to be segregated when the school district, which the
school serves, contains children of only one race. Be
cause attendance at Dunbar High School, in the 9, 10,
11, and 12 grades, is voluntary, the Board of Education
does not consider Dunbar High School to be a segre
gated school.39
This policy, pretentiously phrased as both a favorable
response and a defense to the black community’s demands
for an end to deliberate school segregation, sent forth an
unmistakable message: Segregated schooling has become
the official way of educational life in this community; we,
the school authorities, despite the fact that our heavy hand
is responsible for the establishment and maintenance of this
official color line, do not propose to breach it except to the
extent that the way of life itself, as determined by the con
trolling white majority, manifests tolerance of breaches.
In other words, having secured a milieu of school segrega
tion the school authorities then, ostensibly, submitted to
39 Petitioners jest when they refer to this policy as an “unequiv
ocal expression of non-segregatory intent.” Pet. Br. 32.
104
that “natural” milieu the whole questions of if and when
changes should take place. This is the genesis of the
Board’s current defense that school segregation was inevita
ble and beyond its control or influence. The proposition is
denied by the above-quoted policy statement. That policy
bespeaks official segregation—not just segregation of teach
ers, 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. See pp. 23-25, supra.M
Despite the comprehensive nature and firmness of the
systemwide foundation of segregation that had been laid,
racially separate schooling was apparently too important
to the school authorities and their controlling white con
stituents just to be left to “natural” forces. Moreover, the
black community continued to object to school segregation. 40
40 The district judge refused to acknowledge the significance of
these facts and their conclusive nature with respect to plaintiffs’
contention that the Board was effectively operating a dual system
at this time and thereafter. 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 in
stance 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 the students.” Pet.
App. 153a. [It is not clear from the opinion whether this state
ment is intended to apply to pre-Brown practices. I f 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 pp. 13-20, supra. The court’s statement is also
clearly erroneous with respect to post-Brown faculty-assignment
practices, discussed below.] Discrimination in one aspect of school
administration hardly can be justified, and certainly not legalized,
on the theory that the same result was being accomplished through
other modes of discrimination. Again, the court of apneals properly
assessed the significance of the faculty segregation policy. Pet. App.
195a-201a.
105
In December 1952 the Board adopted a complex scheme
affecting the West Side schools which again purported to
be a favorable response to the protests of the black com
munity, but which again was a patent artifice for giving
the white educational community what it wanted or was
perceived to have wanted: reinforced segregation of the
schools. The undisputed subsidiary facts are set out in the
Statement of the Case, pp. 25-27, supra.
The district court’s suggestion that the West Side reor
ganization “was an experiment in integration, and was
intended as such” (Pet. App. 155a), is a completely mis
leading characterization of the facts. The court’s conclu
sion, immediately following the statement just quoted, is
that the Board’s “purpose 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 inte
gration. The Board’s purpose in these proposals was to
try and appease the black community without seriously
breaching the status quo of dual schooling 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 official blacks-only
schools be altered in any respect, let alone be “ integrated,”
by the assignment of nearby white children or faculty.41 And
41 Instead, the Board merely (1) substituted optional zones to
guarantee the ability of nearby whites to continue to avoid atten
dance at the all-black schools, as they had since the conversion of
these schools under the Board’s prior transfer policy, and (2) con
tinued to assign virtually all-black faculty to the all-black schools
pursuant to the faculty-segregation policy discussed above. In a
106
beyond doubt, the option the Board implemented could not
foreseeably have resulted in anything other than further
entrenchment of the dual system, which is what happened.
See pp. 25-26, supra.
fact statement dated 2 December 1954, the Superintendent of
Schools looked back on the events of 1951 and 1952 and made the
following observations (App. 183-Ex. and 184-Ex.) :
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.
# # #
Dunbar High School has no boundary lines. Theoretically,
any child in the city can elect Dunbar, but, practically, only
Negro children attend. The staff is completely negro, except
for Driver Training teachers. Children who attend the high
school grades at Dunbar do so by choice. A Negro child can
always attend the high school which serves his area.
# # * *
At the present time we employ 168 negro teachers out of a
total 1,577 teaching positions, which is 10.6%. In September,
1951, the first negro teacher was placed in a mixed School-
Weaver School. At the present time we have 17 negro teachers
assigned to mixed or all-white schools. In addition, we have
at the present time 8 white teachers working in all-negro schools
— 3 on a full-time basis and 5 on a part-time basis.
* # #
About two years ago we announced a policy of attempting
to introduce white teachers in our schools having negro popula
tion. We have not been too successful 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 introduc
ing white teachers in negro schools is more difficult than the
problem of introducing negro teachers into white situations.
There are several all-white schools which in the near future will
be ready to receive a negro teacher.
The policy of sending negro children from Shawen Acres to
Garfield School was discontinued this September and these
children now attend Van Cleve, Brown, Loos and Shiloh
schools.
107
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 prove
this second point: the placement of optional zones (to
substitute for the prior “ free transfer” policy) in white
residential areas to allow whites to escape the already
heavily black “mixed schools” to which blacks from the
all-black schools were assigned; the continuation of system-
wide faculty segregation pursuant to a policy expressly
premised on racial discrimination (that transferred black
teachers in ever increasing numbers only to the “mixed”
schools, thereby designating them as “black schools,”
while otherwise maintaining with few exceptions the basic
color line for staff at the all-white and all-black schools);
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
pp. 25-27, supra.
In this way, the Board successfully converted into all
black schools (though in a more subtle and complex manner
than the earlier conversions of Garfield, Willard and Wog-
aman) the “mixed” schools—which in 1951-52 contained
about 20% of the system’s black students—surrounding the
four official blacks-only schools. Hence, at the time of
Brown three-fourths of the black school children were con
tained in one-race schools, staffed almost exclusively with
black teachers, created and operated pursuant to racially
discriminatory policies and practices of systemwide scope.
The Board’s intentionally segregative actions had been
circumscribed by neither geography nor administrative
function; they touched all facets of school operation and all
parts of the system. This “all lead[s] the mind up to a
conviction of a purpose and intent which we think is so
108
certain as practically to cause the subject not to be within
the domain of reasonable contention.” Standard Oil Co. v.
United States, 221 U.S. 1, 77 (1911). Petitioners were
operating a dual school system at the time of Brown.
2 . T h e Nature o f the Dual S ystem at the T im e o f Brown.
It perhaps conceals too much to say that Dayton school
authorities found it easy, in the years following Brown,
to maintain and build upon this almost totally segregated,
dual school system. But before turning to the details of
that conduct, it is helpful, for purposes of constitutional
fact-finding and understanding, to assess the magnitude of
the intentional segregation that had been practiced for
over forty years. Because the system grew from 47 schools
enrolling 34,948 pupils, 19% of whom were black, in 1951-
52 (App. 2-Ex.), to 69 schools enrolling 55,142 students,
42.7% of whom were black, in 1971-72 (App. 4-Ex.),42 peti
tioners suggest (Pet. Br. 29) that there could not con
ceivably have been any surviving vestiges of their pre-
Brown conduct present at the time of trial. On its face,
the argument transgresses reason and this Court’s repeated
findings about the intractable nature of intentional school
segregation. At bottom, the argument, as we have said
(see pp. 88-90, supra), presupposes that school segregation
is a “natural” condition or, at worst, a condition indepen
dently brought about by forces of discrimination having no
connection with, and wholly uninfluenced by, the discrimina
tory actions of school authorities. The argument reduces
itself to the contention that to educate the entire pupil
population of a school district on the basis of race for four
decades is inconsequential in terms of segregative impact.
If this is true, then the nation and this Court have seriously
42 In 1951-52 77.6% of all pupil's were enrolled in schools that
were 90% or more black, or 90% or more white; the comparable
figure for 1971-72 is 74.5%. App. 2-Ex. & 4-Ex.
109
overestimated the importance and influence of public edu
cation in a democratic society.
In Brown I, 346 U.S. at 493, the Court made the follow
ing finding about the significance of public education in our
society:
Today, education is perhaps the most important
function of state and local governments. Compulsory
school attendance laws and the great expenditures for
education both demonstrate our recognition of the im
portance of education to our democratic society. It is
required in the performance of our most basic public
responsibilities, even service in the armed forces. It is
the very foundation of good citizenship. Today it is a
principal instrument in awakening the child to cultural
values, in preparing him for later professional train
ing, and in helping him to adjust normally to his
environment.
In this context, the Court recognized the devastating im
pact of official school segregation (id. at 494):
To separate [black children] from others of similar
age and qualifications solely because of their race gen
erates a feeling of inferiority as to their status in the
community that may affect their hearts and minds in a
way unlikely ever to be undone.
The Court thus assessed school segregation and its far-
reaching consequences “in the light of [public education’s]
full development and its present place in American life
throughout the Nation.” Id. at 492-93.43
43 The Court noted that “ in the North segregation in public edu
cation has persisted in some communities until recent years. It is
apparent that such segregation has long been a nationwide prob
lem, not merely one of sectional concern.” 347 U.S. at 491 n.6.
110
The very justification for the “all deliberate speed” re
medial timetable selected in Brown II, 349 U.S. at 30, was
the recognization that the roots of state-imposed segrega
tion ran deep: the Court spoke of “the complexities aris
ing from the transition to a system of public education
freed of racial discrimination” (id. at 299), of “varied local
school problems” (id.), of “a variety of obstacles in making
the transition to school systems operated in accordance
with the constitutional principles set forth in [Brown]” (id.
at 300), and a long list of “problems” that must be met in
order “ to effectuate a transition to a racially nondiscrim-
inatory school system.” Id. at 300-01.
This understanding of the entrenched nature of inten
tional school segregation was not lost—indeed, it was made
more apparent—in the years between Brown II and Green.
In the latter case, the Court observed (391 U.S. at 435-56):
It is of course true that for the time immediately after
Brown II the concern was with making an initial break
in a long-established pattern of excluding Negro chil
dren from schools attended by white children. The
principal focus was on obtaining for those Negro chil
dren courageous enough to break with tradition a place
in the “white” schools. . . . Under Brown II that im
mediate goal was only the first step, however. The
transition to a unitary, nonracial system of public edu
cation was and is the ultimate end to be brought about.
The Court found, in fact, that imposed school segregation
had been so well fortified that it ordinarily could not be
successfully penetrated by so-called “ freedom of choice”
attacks (id. at 437-38):
In the context of the state-imposed segregated pattern
of long standing, the fact that in 1965 the Board
I ll
opened the doors of the former “white” school to
Negro children and of the “Negro” school to white chil
dren merely begins, not ends, our inquiry whether the
Board has taken steps adequate to abolish its dual,
segregated system. Brown II was a call for the dis
mantling of well-entrenched dual systems tempered by
an awareness that complex and multifaceted problems
would arise which would require time and flexibility
for a successful resolution. School boards such as the
respondent then operating state-compelled dual sys
tems were nevertheless clearly charged with the affirm
ative duty to take whatever steps might be necessary
to convert to a unitary system in which racial discrim
ination would be eliminated root and branch.
The Court also found that the failure of school authorities
to promptly assault the problem had only entrenched it (id.
at 438):
In determining whether respondent School Board met
that [Brown II] command by adopting its “ freedom-
of-choice” plan, it is relevant that this first step did
not come until some 11 years after Broivn I was de
cided and 10 years after Broivn II directed the making
of a “prompt and reasonable start.” This deliberate
perpetuation of the unconstitutional dual system can
only have compounded the harm of such a system.
The Court has never deviated from this basic understand
ing of the enormity and severity of intentional racial seg
regation in the public schools.44 The Court re-evaluated this
impact in great detail in Swann, and reached the same con
clusion : racial discrimination by school authorities has
44 The difficulty in eradicating such ingrained segregation caused
the Court to direct lower courts to “ retain jurisdiction until it is
clear that state-imposed segregation has been completely removed.”
391 U.S. at 429.
112
enduring and wideranging segregative results. See the
quotations from Swann in the Introduction to Argument,
pp. 75-82, supra. See also Wright v. Council of City of
Emporia, 407 U.S. 451 (1972); United States v. Scotland
N ed City Bd. of Educ., 407 U.S. 484 (1972).
And throughout the opinion in Keyes, the Court reiter
ated this understanding of the nature and significance, in
terms of segregative impact, of intentional discrimination
by school authorities. The Court noted that such discrim
inatory practices, aimed at blacks, have the “ reciprocal
effect” of maintaining other parts of the system for whites
{id. at 201-02); that such racial “ earmarking” of the
schools “may have a profound reciprocal effect on the
racial composition of residential neighborhoods within a
metropolitan area, thereby causing further racial concen
tration within the schools.” Id. at 202. “ [R]acially in
spired school board actions have an impact beyond the
particular schools that are the subjects of those actions,”
concluded the Court (id. at 203), and “a connection between
past segregative acts and present segregation may be pres
ent even when not apparent. . . . ” Id. at 211. Accordingly,
the Court held “that close examination is required before
concluding that the connection 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.” Id.iS 45
45 As recently as the day Dayton I was decided, the Court, in
Milliken II, forcefully reconfirmed its consistent understanding of
the far-flung manifestations of intentional school segregation: “ dis
criminatory student assignment policies can themselves manifest
and breed other inequalities built into a dual school system founded
on racial discrimination.” Milliken v. Bradley, 433 U.S. 267, 283
(1977). Speaking to some of the “ inequalities . . . which flow from
a longstanding segregated system” (id.), the Court found (id. at
287) :
Children who have been thus educationally and culturally set
apart from the larger community will inevitably acquire habits
113
Petitioners’ effort to fritter away tire long-term signifi
cance, of their systematic pre-Brown discrimination, on the
basis of a presumption that alleged post-Brown neutrality
and the passage of time somehow overwhelmed the historic
system of dual schooling, is thus foreclosed by the deci
sions of this Court. Moreover, the Board’s post -Brown
conduct cannot be accurately analyzed without a full ap
preciation for the systemic impact of forty years of un
relenting racial discrimination in the operation of the
Dayton public schools. No one can say with certainty what
the racial composition of the system’s schools would have
looked like in 1954 in the absence of this persistent history
of official segregation. But this Court’s decisions, the Four
teenth Amendment and human knowledge instruct that the
segregative impact of this history was profound. At the
time of Brown the entire root system and the trunk of the
dual system in Dayton were firmly established. Even if
what happened between then and the time of trial was no
more than the growth in that environment of “natural”
segregative branches (cf. Keyes, 413 U.S. at 211), the en
tire system would have been unconstitutional. Green, 391
U.S. at 435-441. What in fact did happen, however, cannot
possibly even be classified as “natural,” as we now show.
3. The Post-Brown Era.
It is not seriously contended that petitioners or their
predecessors ever took any affirmative action, other than
the 1971 desegregation resolutions which were subsequently
rescinded (see pp. 59-64, supra), to undo any aspect of the
officially-imposed systemwide segregation extant at the time
of speech, conduct, and attitudes reflecting their cultural isola
tion. They are likely to acquire speech habits, for example,
which vary from the environment in which they must ulti
mately function and compete, if they are to enter and be a
part of that community.
114
of Brown. Petitioners do make a half-hearted assertion
that “ [w]henever any purpose other than convenience of
access emerges unequivocally from the evidence, the pur
pose is one of improving racial balance.” Pet. Br. 27; see
also id. at 31. But petitioners were not even able to sell
this proposition to the district court, which found, from
the testimony of two of petitioners’ former managing
agents, “ that with one exception46 . . . , no attempt was
made to alter the racial characteristics of any of the
schools.” Pet. App. 150a. Even the trial court thus acknowl
edged “the failure of school officials to take affirmative steps
to alleviate this racial imbalance. . . .” Id. Petitioner’s case
is therefore reduced to their principal argument (Pet. Br.
26-27):
The Dayton Board contends that its intent has been
to pursue a racially neutral policy of placing schools
where the children are or where they are expected to
be in accordance with the directive of section 3313.48
of the Ohio Revised Code.47
The Board claims that it has had a “long-standing con
cern over problems of racial isolation and its intent [has
been] to overcome such problems wherever feasible with
out sacrificing its neighborhood school system.” Pet. Br. 31.
46 The “ exception” referred to is the 1952 West Side reorganiza
tion which, as we have seen (pp. 105-07, supra), was a sham.
47 Whatever the meaning of this statute’s directive that local
school boards provide “ free education . . . at such places as will be
most convenient for the attendance of the largest number thereof”
(the statute is quoted in full at page 5 of petitioners’ brief), it is
clear that in Dayton it did not impose any intradistrict geo
graphical limits or “neighborhood school” constraints on pupil
assignments. Witness, for example, the 1933-1962 operation of
Dunbar on a systemwide basis, the similar systemwide pupil-
assignment basis of Patterson Co-op (which continues to this day) ;
and the long-distance pupil assignments under the various free-
transfer, optional-zone, Shawen Acres, overcrowding, hardship,
curriculum and Freedom of Enrollment policies which have existed
at various times.
115
Petitioners do not inform us when this “neighborhood
school” policy came into being, but it is an appropriate
question. Cf. Village of Arlington Heights v. Metropolitan
Homing Dev. Corp., 429 U.S. 252, 267 (1977); Keyes, 413
U.S. at 212.“
Even if after Brown petitioners did pursue a program
which all could agree was a racially “neutral policy of put
ting the schools where children were or where they were
expected to be” (Pet. Br. 29), it is manifest that such a
system, contrary to the Board’s Brown II duty to dis
establish intentional segregation, effectively froze in the 48
48 If it is the Board’s contention that it was operating a “neigh
borhood school system” during the four decades prior to Brown,
then it is readily apparent that “neighborhood school” is a euphe
mism for official racial segregation. Was it pursuant to the “neigh
borhood school” policy that Garfield, Willard and Wogaman were
converted into blacks-only schools by transferring both the white
teachers and the white students (who presumably resided in those
“neighborhoods” ) in those schools to other, predominantly white
schools? Was it mere implementation of the “neighborhood school”
concept— whatever it means in the abstract— pursuant to which
Dunbar was created in 1933 and operated as a systemwide blacks-
only high school until 1962, and pursuant to which predominantly
white high schools operated on a systemwide basis, without atten
dance zones, until the 1940’s (and one has continued to operate
without attendance boundaries to this day) ? What did the “neigh
borhood school” theory have to do with the policy of allowing black
teachers to teach only black children, or with the equally racist
1951-52 policy modification? And surely the cross-town transpor
tation of black orphanage children to blacks-only schools, the dis
criminatory treatment of black children within school and in extra
curricular activities, and the leasing of space in official one-race
public housing projects for the education of children of corre
sponding race were not the products of a racially neutral “ neigh
borhood school” policy. Maybe the “neighborhood school” system
came into being with the West Side reorganization in 1952 when
the policy of free transfers between elementary school zones was
ended, and racial optional zones were substituted to achieve the
same segregative result. I f this is its origin in Dayton, then peti
tioners’ “ neighborhood school svstem” is due to be defined as one
which seeks to provide educational opportunities in a maximized
segregated environment.
It is against this background that petitioner's’ “neighborhood
school” claim must be weighed.
116
pre-existing systemwide pattern of deliberate segregation.
See, e.g., Swann,, 402 U.S. at 28, McDaniel v. Barresi, 402
U.S. 39, 41 (1971) ; North Carolina State Bd. v. Swann, 402
U.S. 43, 45-46 (1971); Gaston County v. United States, 395
U.S. 285, 297 (1969). Such, a program would have been
unconstitutional in this context, would only have com
pounded the constitutional wrong and, under Green and
Swann, would not have relieved the Board of its system-
wide remedial obligations. But our case need not rest here,
because between Brown and trial the Board did not follow
any comprehensible policy which could be characterized as
“racially neutral” or “neighborhood school system.”
Petitioners’ pre-Brown racially discriminatory faculty-
assignment policy continued in raw form until HEW inter
vened in 1969. The Board followed an overwhelming pat
tern of assigning teachers according to the race of the
pupils to be taught. And as the court of appeals found, this
policy reinforced the segregative nature of the Board’s
school construction practices through “the coordinate racial
assignment of professional staffs to these schools and ad
ditions on the basis of the racial composition of the pupils
served by the schools.” Pet. App. 210a. In these ways, the
Board’s race-based faculty-assignment policy continued to
earmark schools according to race Just as effectively as in
the pr e-Brown years. See pp. 32-36, supra.49
The Board’s post -Brown school construction and closing
practices also had permanent long-run segregative impact.
49 In addition to the district court’s clearly erroneous conclusory
factual findings (see note 14 supra) the court also erred as a mat
ter of law in failing to recognize the significance of intentional
faculty segregation as a part of the Board’s deliberate perpetuation
of the pr e-Brown dual system, Green, 391 U.S. at 435-436, and
Swann, 402 U.S. at 18, as well as in not recognizing the plain in
ference that such segregative intent also underlay the Board’s school
construction and pupil-assignment practices. See Keyes, 413 U.S.
at 202 and Argument III, infra, pp. 136-38.
117
Dunbar high school continued to be operated as a system
wide blacks-only school until 1962, when it was replaced
with a new Dunbar high school with an attendance area
defined to coincide with a virtually all-black area in the
West Side.60 Instead of locating the new Dunbar in such a
manner as to facilitate its desegregation, or instead of as
signing white students to the new school (after all, if the
Board could assign black students from all over the system
to Dunbar, it could also have assigned white pupils to the
school), the Board deliberately chose to maximize segrega
tion. Patent segregative intent is revealed by the location
of the new school, by the imposition of a one-race attendance
zone, by the assignment of a black principal and a virtually
all-black staff, by the continuation of the very name of the
school for a “new” all-black school, and by what happened
to the old Dunbar school. The old Dunbar was converted
into McFarlane elementary, whose attendance zone was
drawn to take in most of the students attending the blacks-
only Willard and Garfield schools, which were simulta
neously closed. McFarlane elementary thus opened with
an all-black student body; any doubt about whether segre
gative intent was a motivating factor in this conversion was
eliminated when the Board assigned an all-black faculty
at the opening of this “new” blacks-only elementary school.
See p. 40, supra. This was unmitigated purposeful segre
gation. Rather than eliminating these direct vestiges of
the pre-Brown dual system, the Board deliberately renewed
and reinforced its segregation policy.
Throughout the remainder of the system, the Board’s
post -Brown brick-and-mortar practices had a similarly per
vasive segregative impact. Practically all construction of 50
50 The other city-wide high school which existed at the time of
Brown, Patterson Co-op, continued as a systemwide and, through
the 1967 school year, virtually all-white high school. See p. 45,
supra.
118
new schools and additions to existing schools resulted in
uniracial educational settings. See pp. 38-42, supra. These
practices did not conform to any discernible “neighborhood
school” policy or any other identifiable educational philos
ophy. Even the district court characterized these practices
as “a most imprecise science” which “approached the level
of haphazard in some instances.” Pet. App. 173a. But the
district court failed to recognize that the unifying theme in
this “haphazard” program was intentional racial segrega
tion: over 90% of all new classroom space constructed
after Brown was on a one-race or virtually one-race pupil-
assignment basis, and teachers were assigned thereto on a
corresponding racial basis. See pp. 39-41, swpra. Viewed
in total isolation from the rest of the record, this over
powering segregative pattern of classroom construction
raises a strong inference of intentional segregation: “In
ascertaining the existence of legally imposed school segre
gation, the existence of a pattern of school construction
and abandonment is thus a factor of great weight.” Swann,
supra, 402 U.S. at 21. The coordinate racial assignment of
faculties to these classrooms—itself “a prima facie case of
violation of substantive constitutional rights under the
Equal Protection Clause” (id. at 18)—practically makes
the inference conclusive. If there is any remaining room
for rebuttal by petitioners, it is foreclosed by placing these
events in the context of the whole record of intentional
segregation.
The Board concedes that its construction practices “main
tained racial isolation” (Pet. Br. 34), which is necessarily
a concession that its conduct in this regard was violative
of its Brown II duty to undo, rather than to compound,
segregation. But the Board disputes the intentionally segre
gative nature of this conduct. It seeks to undercut the
highly probative value of the racial assignment of teachers
119
to these new classrooms by asserting that it had long since
abandoned its “pre-1951 practice of assigning black teachers
to teach only in black schools.” Pet. Br. 34. This is de
monstrably untrue. It may be argued, with some plausibil
ity, that the continuation of a racial pattern of faculty
assignments in those schools which existed in 1951 is no
more than a perpetuation, pursuant to the Board’s racist
policy of so-called “dynamic gradualism” (see note 14,
supra), of pre-Brown intentional discrimination. I f that
were all that the post -Brown facts showed with respect to
teacher assignments, then perhaps the most that we could
contend would be that such perpetuation was part of peti
tioners’ refusal to meet their Brown II remedial obligations.
But the facts show more. They reveal an across-the-board
pattern of faculty assignments identifying new classroom
space according to race. See, e.g., App. 11-Ex. (PX 4),
and p. 39, supra. This is not just ancient history mani
festing itself; this is indisputable direct evidence of fresh
intentional segregation. No other conclusion is conceivable.
In full context, therefore, it is not credible to argue that
“ [t]he fact that their student compositions reflected the
racial composition of the neighborhoods they served does
not offset the fact that schools were built accordingly [sic]
to racially neutral criteria.” Pet. Br. 34. In sum, the
Board’s post-Brown construction practices were at war with
the affirmative duty to desegregate imposed by Brown II,
and they constituted ongoing intentional segregation on a
systemwide scale.
In the Statement of the Case, supra, we have detailed
(though not exhaustively) abundant record evidence of
the discriminatory purpose and impact of numerous other
of petitioners’ administrative practices. These include
the use of “ optional attendance areas” in the fringe
120
areas between predominantly black and predominantly
white attendance zones (pp. 43-49, supra),51 the drawing or
maintenance of attendance zones so as to produce contig
uous pairs of opposite race schools (pp. 50-51, supra), the
inefficient use of excess school capacity in the face of more
efficient (and cheaper) alternatives that would have had
desegregative impact (p. 42, supra), the segregative
manipulation of grade structures (pp. 52-53, supra), the
discriminatory implementation of pupil transfers and trans
51 In Dayton I this Court recognized “ optional zones” as at least
arguable devices of purposeful segregation. 433 U.S. at 413. The
lower federal courts have frequently found them to be just that.
See cases cited in note 19, supra; see also pp. 106-07 of the Brief
for Respondents in Columbus Bd. of Educ. v. Penick, No. 78-610.
On the instant record, as the court of appeals determined (Pet. App.
209a-10a), a similar conclusion is inescapable. “ Optional attendance
areas” were unheard of prior to the early 1950’s (except, of course,
for the Dunbar high school, which operated as a district-wide
optional zone for blacks only from 1933-1962), when they were util
ized as a part of the West Side reorganization to facilitate the
conversion of the “racially mixed” schools in that area into all-black
schools (see pp. 26-27, supra), and also when the manifestly racial
option between Roosevelt and Colonel White was created. See pp.
45-46, 48, supra. Such zones thus originated in Dayton as part of a
scheme of racial separation, and they were frequently employed
thereafter to reinforce the idea, made plain through numerous other
intentionally segregative policies and practices, that there was
something bad about having black and white children attend school
together. The fact that such zones sometimes appeared in circum
stances having no racial implications proves no more than that the
Board found them also adaptable to nonracial political purposes.
And, contrary to petitioners’ suggestion (Pet. Br. 34), the fact
that some of the zones with segregative impact were not abolished
or modified when black students began exercising the proffered
“ option” to attend a white school instead of a black one does not
wipe the slate clean. Most of these few situations occurred in the
late 1960’s and early 1970’s when the Board was being subjected
to intense constitutional scrutiny—not only by the black community,
but now also by a community-wide citizens group, the State Board
of Education and HEW. Moreover, the failure to follow one dis
criminatory act with another does not disprove the purpose of the
earlier act, and it does not speak at all to the impact of the earlier
act in converting the “sending” school into a one-race black school.
121
portation (including instances of transporting entire black
classes to, and segregating them within, otherwise white
schools) (pp. 54-57, supra), and a Freedom of Enrollment
policy implemented in 1969 which was similar, in both
design and impact, to the “freedom of choice” and “free
transfer” systems invalidated in Green and companion cases
the year before (pp. 58-59, supra). The court of appeals
made explicit findings of segregative intent with respect
to many of these practices (Pet. App. 209a-13a),52 and the
record evidence convincingly demonstrates that similar in
tent infected others.58 When these practices are viewed
in the context of the total record, it is clear that they were
subparts of a systemwide policy of intentional segregation.
It was against this background that the Ohio State De
partment of Education, HEW, a Board-appointed citizens
committee, the President of the Board, and eventually the
Board itself—after extensive deliberations—all concluded
that the Board was responsible, both morally and consti
tutionally, for the systematic segregation of the schools.
See pp. 60-63, supra. But when the Board finally responded
with meaningful action, admitted its intentionally system-
wide segregative conduct of the past, and shouldered its
Brown II remedial duty in late 1971, its operative desegre- 62 * * * * * 68
62 To the extent that the court of appeals did not make findings
or draw conclusions about these particular facts, we are neverthe
less entitled to urge them in support of the judgment below. Day-
ton I, 433 U.S. at 418-19. Unlike the situation in Dayton I, however
{see id. at 416-18), the court of appeals has now confronted the
whole record and made findings and drawn conclusions with re'spect
to the bulk thereof. It found clearly erroneous many of the sub
sidiary, and practically all of the ultimate, findings of the district
court.
68 The segregative nature of many of the practices listed above
and numerous lower court decisions finding similar practices to be
racially discriminatory are discussed in some detail at pp. 106-08
of the Brief for Respondents in Columlus Bd. of Educ. v. Penick,
No. 78-610, to which the Court is respectfully referred.
122
gation resolutions were subsequently (in early 1972) re
scinded by a newly-constituted Board resulting from an
election in which desegregation was the primary issue.
See pp. 63-64, supra. The basic facts are not in dispute,54 55 * * * * *
but the district court accorded them neither evidentiary
nor legal significance. The district court determined that,
under this Court’s opinion (433 U.S. at 413-14) adopting
the rescission portion of the court of appeals’ opinion in
Brinkman 1 (503 F.2d at 697), the Board’s rescission action
was not an independent constitutional violation because the
Board was under no duty to desegregate. Pet. App. 185a.
Since the latter determination is incorrect, as we have shown
throughout this brief, the former conclusion is necessarily
wrong.65 There are several other critical errors in the dis
trict 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 De
partment of Education, the Board-appointed advisory com
mittee of community representatives, the Board’s president,
54 However, the district court’s apparent conclusion that the
Board, in finally standing up to its constitutional duty, was “manu-
facturfing a constitutional violation] by political or legal maneu
vering” (Pet. App. 184a), is clearly erroneous. See note 22, supra.
The only difference between the Board’s actions of December 1971
and those of January 1972 is that the former were aimed at deseg
regation while the latter were aimed at reinstating segregation. The
rescission action was just as much (if not more) “manufactured”
as the earlier desegregation action. The district court apparently
has made a purely social value judgment, which is wholly unwar
ranted on this record, in order to seek to repudiate the findings
from its original violation opinion concerning the rescission. See
Pet. App. lOa-lla.
55 This Court agreed with the court of appeals 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.” Dayton I, 433 TJ.S. at 414, quoting
Brinkman I, 503 F.2d at 697.
123
or the Board itself, that the Board had over the years
engaged in intentional segregative conduct resulting in a
segregated school system. In the context of this record,
the findings of segregation by public agencies and the ad
missions of intentional segregation by the school authorities
themselves (rare enough in any circumstances) reinforce,
rather than detract from, the conclusion that the Board was
guilty of intentional systemwide segregation. In addition,
the district court should have found that the rescission itself
was an independent act of intentional systemwide segre
gation.56
The rescission is therefore a part of the overall con
stitutional violation, as well as an independent act of sys
temwide segregation. The public-body findings and ad- 66
66 Further analysis shows that the rescission was in fact an act
designed “ to undo operative regulations affecting the assignment
of pupils [and] other aspects of the management of school affairs,”
within the meaning of this Court’s opinion. 433 U.S. at 413. As
shown at pp. 63-64, supra, the Board’s rescission resolutions di
vested the Superintendent of Schools of his operative authority
under Ohio law to determine pupil assignments in accordance with
the plan that he had already adopted. Thus, the Board’s action,
viewed in its particular historical context, violates the Equal Pro
tection Clause. Cf. Reitman v. Mulkey, 387 U.S. 369 (1967). More
over, the Board’s rescission action, by singling out pupil rea'ssign-
ments for the purpose of desegregation and, with respect to such
assignments, stripping the Superintendent of Schools of his other
wise unqualified state-law authority over intra-district student as
signments, was “ an explicitly racial classification treating racial
[pupil assignment] matters differently than other . . . [pupil as
signment] matters.” Hunter v. Erickson, 393 U.S. 385, 389 (1969).
These facts are more than sufficient to “ trigger the rule . . . that
racial classifications are to be subjected to the strictest scrutiny
and are justifiable only by the weightiest of considerations.” Wash
ington v. Davis, supra, 426 U.S. at 242. Analysis under the types
of factors described in Arlington Heights, supra, leads to the same
conclusion: race was among the factors motivating the Board’s
January 1972 rescission of the systemwide policy of desegregation
previously announced by the Board and frustration of the Super
intendent’s pupil-assignment plan previously announced pursuant
to the Superintendent’s independent authority under state law.
124
missions underlying the desegregation resolutions are,
moreover, entitled to probative weight. The Board has
dispelled none of these conclusions.
But whether the rescission and attendant findings and
admissions are viewed as a renewal of the Board’s long
standing policy of segregation, or whether they are ignored
altogether, the record overwhelmingly demonstrates that
the Board had deliberately created a dual system by the
time of Brown which it relentlessly reinforced, expanded
and compounded up through the time of trial in 1972.
The system, thus resulting was constitutionally indistin
guishable from that created in Charlotte and condemned
in Swann as an ongoing dual school system. Through
systemwide policies and practices of intentional segrega
tion, supplemented by a host of other intentional discrim
inatory actions, the Board dramatically marked certain
schools and certain parts of the system for the education
of blacks only; and, reciprocally, other schools and other
parts of the system were set aside and preserved for whites.
Pursuant to a pattern that was never breached (App. 1-5-
Ex.), over three-fourths of all black students and nearly as
great a proportion of white students were in one-race or
virtually one-race schools in the 1971-72 school year. App.
4-Ex. (PX 2D). The Dayton Board was operating a covert
dual school system at the time of trial, and the remedial
principles of Swann therefore apply in all respects to this
case.
125
II.
The Remedial Principles of G reen and Sivann En
title Respondents to a Systemwide “Root and Branch”
Desegregation Remedy Designed to Eradicate All Ves
tiges of the Dual System; Petitioners Have Not Met, and
Have Not Even Attempted to Meet, Their Burden of
Demonstrating That This Constitutional Goal Can Be
Fulfilled With a Less Extensive Remedy.
The conclusions, established in Argument I above, that
petitioners were essentially operating a dual school system
at the time of Brown which was deliberately entrenched
through the time of trial, bring the remedial principles of
Green and Swarm into full play—as this Court squarely
held in Keyes, 413 U.S. at 213-14, and confirmed in Dayton
1, 433 U.S. at 420, would be the case upon such a showing of
a non-statutory dual system.57 Before turning to a proper
application of those principles, however, it is necessary to
respond to petitioners’ implicit contention that those prin
ciples were repudiated, sub silentio, by the “ incremental
segregative effect” phrase of Dayton I, 433 U.S. at 420.58
57 In their entire argument on the proper scope of the remedy
(Pet. Br. 40-54), petitioners neither cite nor discuss the principles
laid down in Green and Swann.
58 In Keyes, 413 U.S. at 203, the Court held that “ proof of state-
imposed segregation in a substantial portion of the district will
suffice to support a finding . . . of the existence of a dual system
. . . , in the absence of . . . a determination [that geography or
natural barriers divided] the district into separate, identifiable and
unrelated units.” The Court continued that where the finding of
such a non-statutory dual system is made, “ as in cases involving
statutory dual systems, the school authorities have an affirmative
duty ‘to effectuate a transition to a racially non-discriminatory
school system.’ Brown II, 349 U.S. at 301.” In its conclusion, the
Court summarized this principle by holding that upon finding such
“ a dual system, respondent School Board has the affirmative duty
to desegregate ‘root and branch.’ Green v. County School Board,
391 U.S. at 438.’ ” Keyes, 413 U.S. at 213. Citing this holding,
126
A. In the Context of an Intentional, Although Non-Statutory,
Dual School System, the “Incremental Segregative Effect”
Inquiry of D ayton I is Governed by G reen and Swann.
The inherent flaw in petitioners’ argument about the
proper scope of the remedy is its refusal to acknowledge,
even arguendo, that the Board had ever engaged in inten
tional systemwide segregation. Thus, in its argument about
the nature of the violation (Pet. Br. 13-39), the Board in
sists on characterizing its segregative conduct as “ isolated
acts or practices that dated back to periods ranging from
twenty to sixty years before the filing of suit.” Pet. Br. 30.
Only by thus attempting to have its acts of intentional
across-the-board discrimination defined as a niggling con
stitutional violation is the Board able to present its elab
orate remedy argument without mentioning Green and
Swann. Pet. Br. 40-54. Having so circumscribed the nature
of the violation also allows petitioners to appear to be
somewhat more candid in their remedy argument about the
violation. Hence, in their remedy argument (but nowhere
in their violation argument) petitioners gratuitously con
cede that “constitutional violations by the Dayton Board
had occurred in three historic areas—faculty assignment
prior to 1951, the opening of the first Dunbar High School
in 1933 and a series of isolated practices that occurred at
varying times before 1954.” Pet. Br. 50. Since these con
ceded violations have been predefined as petty in nature, the
the Court in Dayton I, 433 U.S. at 420, concludes that “ if there
has been a systemwide impact” from the constitutional violations,
there may be “a systemwide remedy.” In addition, Dayton I, 433
U.S. at 419-420, recognizes that Swann remedial standards apply
full force to a case “where mandatory segregation by law of the
races has [not] long since ceased.” As we have demonstrated in
Argument I, supra, this case is controlled by these remedial stan
dards because the Dayton Board created, perpetuated and com
pounded such a basically dual system from long before Brown
through the time of trial.
127
Board is then able to approach the questions of remedy as
though the record revealed only “ three separate although
relatively isolated instances of unconstitutional action on
the part of petitioners.” Dayton 1, 433 U.S. at 413. Within
this framework, the Board proceeds to separately analyze
the three “isolated” violations and argue that, as of the
time of trial, there were no remaining* “ incremental segre
gative effects” from these instances of intentional dis
crimination: whatever the immediate segregative impact
of these violations, the Board argues that it had long since
been wiped out by alleged corrective action by the Board
(in the case of systemwide faculty segregation),69 by over
69 Even if the Board’s faculty segregation policy could be un
locked from its hand-in-glove connection with pupil assignments
and school construction (see pp. 13-27, 32-41, 99-104, 116-19,
supra), petitioners’ argument that “ultimate” faculty desegrega
tion removed all traces of “past assignment practices [which] had
identified schools as black or white” (Pet. Br. 51) would not be
plausible. The Board erroneously cites the testimony of one of
plaintiffs’ experts, Dr. Green, for the proposition that racial faculty
assignments do not affect “ the perception of whether such schools
were intended as black schools.” Pet. Br. 51. This misstates Dr.
Green’s testimony by placing sole reliance on an unclear question
and answer which were immediately clarified. Dr. Green emphasized
that the assignment of black teachers for the first time to selected
schools with high percentages of black pupils, as occurred in the
West Side reorganization, for example, “ could well and perhaps
does facilitate that school in becoming perceived as being a black
school or black area if I might use that term.” App. 113. A
different point made by Dr. Green, which seems to confuse peti
tioners, is that “ desegregating the faculty of a particular school
community when in the past [there] has been a systematic place
ment of teachers to schools based on race, based upon the racial
composition of the school and using the race of the teacher as a
factor, simply desegregating the faculty without at the same time
desegregating the pupils or students within that system does not
change the community perception of that school.” App. 111. There
is no inconsistency between these two points: race-based faculty
assignments have a causative effect on the racial identifiability of
schools; once that effect has taken place, however, more than mere
faculty desegregation is required to uproot the segregative impact
on pupil attendance patterns.
128
whelming residential patterns (in the ease of Dunbar),60
and by the passage of time (in the case of the other pre-
Brown “ isolated practices” ).61 See Pet. Br. 50-54. Even if
60 Both petitioners and the district court have taken the unsup-
portable view that the operation of Dunbar as a systemwide blacks-
only high school for thirty years had only a discrete, limited
segregative impact. The district 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 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” ! Pet. App. 169a. [As
shown at pp. 40, 117, supra, 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 dif
ferent names, as well as at new schools.] How the effects of acts
can terminate 20 years before the acts themselves cease is not re
vealed in the district judge’s opinion. The district court’s only
explanation apparently was that “ 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.” Pet. App. 170a. 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 systemwide
blacks-only school in the heart of the black population concentra
tion. See note 15, supra, and pp. 131-32, infra. Third, the
finding totally ignores the direct impact and reciprocal effect of
operating such a school on the racial composition of white high
schools throughout the city. See pp. 17-19, supra, and 131-32
infra. Finally, the statement completely overlooks the fact that
such intentionally segregative practices “ may have a profound re
ciprocal effect on the racial composition of residential neighborhoods
within a metropolitan area, thereby causing further racial concen
tration within the schools,” Keyes, 413 U.S. at 202. See also Swann,
402 TT.S. at 20-21, readopted in Keyes, 413 U.S. at 202-03. The
propositions advanced by petitioners and the district court defy
human experience.
61 I f the approach to the “ incremental segregative effect” inquiry
urged by petitioners is relevant in any context, it would be limited
to an evaluation of the segregative impact of such “ isolated prae-
129
petitioners had an accurate view of the nature of the viola
tion, we would disagree with their application of the “in
cremental segregative effect” test, for the reasons, among
others, discussed in the margin. See notes 59-61, supra.
But petitioners have not described the nature and extent
of the violation in this case; as we demonstrated in Argu
ment I, they have missed it by a country mile.
But the structure of petitioners’ argument does seem to
imply a necessary concession: if there has been a system-
wide violation, there must be a systemwide remedy. That
is, even if petitioners are right in their approach to the
“incremental segregative effect” question in a case in which
the violations really are isolated and anecdotal,* 62 an en
tirely different approach is mandated by Green and Swann
in a case in which intentional segregation has been prac
ticed on a systemwide basis. This can be the only meaning
of the paragraph in Dayton I, 433 U.S. at 420, relied upon
by petitioners. See note 58, supra; see also pp. 134-42 of
tiees” as those discussed in this part of petitioners’ brief. But it
has no place in this case, because the practices in question here
were not “ isolated” ; rather, they were part and parcel of a sys
temwide segregation policy.
62 Even in such a case, however, the Board’s contention, accepted
by the district court (Pet. App. 146a), that “ the plaintiff in a case
of this nature must in the first instance carry the burden of estab
lishing both constitutional violations and the incremental segre
gative effect of those violations” (Pet. Br. 42), is wrong. It has
never been the law that the victim of an illegal act must also bear
the burden of proving that he would not have suffered the com
plete injury intended in the absence of the wrongdoer’s illegal con
duct. See, e.g., Mt. Healthy City School Hist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 286-287 (1977); Arlington Heights, supra,
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. RKO Radio Pictures, Inc., 327 U.S. 251 (1946) ; Story
Parchment Paper Co. v. Paterson Paper Co., 282 U.S. 555 (1931);
Lewis v. Pennington, 400 E.2d 806, 817 (6th Cir. 1968).
130
Brief for Respondents in Columbus. To contend otherwise
is to remove the “ incremental segregative effect” holding
of Dayton I from its ratio decidendi of manifestly isolated
violations (433 U.S. at 413), and to suggest that the Court
there secretly overruled or modified the unanimous hold
ings in Green and Swarm. We are confident that if the
Court in Dayton I had intended to discard these precedents,
it would have done so in a more forthright manner.
We have no quarrel with the precise holding in Dayton I,
and we have no dispute with the “ incremental segregative
effect” test as an appropriate method of implementing the
remedial requirements of Green and Swann—that all ves
tiges of intentional discrimination by school authorities be
totally eradicated—in the context of a finding of compara
tively minor constitutional violations. But now that the
court of appeals has confronted the bulk of the overwhelm
ing record evidence and found a basic dual school system at
the time of Drown and ever after, the remedial inquiry is
governed by Green and Swann.
B. Green and Swann Require a Systemwide Remedy in This
Case.
In Green the Court established the basic principle: school
boards operating dual school systems were “ deary charged
[by Brown II] 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. Swann applied that principle
to the urban setting. As we have shown in the Introduction
to Argument, pp. 74-82, supra, the Court in Swarm found
that intentional segregation by school authorities has
played a profound role in creating the present patterns of
segregated schooling. The constitutional findings made in
Swann are equally binding here.
131
Consider, for example, the devastating long-term nature
of the Dayton dual system as it existed in the pre-Brown
era, when the Board first converted and then operated Gar
field, Willard and Wogaman as blacks-only lower-grade
schools, when black high school students from all over the
system were assigned or coerced into the systemwide blacks-
only Dunbar high school, when black teachers were not
allowed to teach white children under any circumstances
anywhere in the system, and when black students wTho
appeared in predominantly white schools were subjected
to what even the district court acknowledged to be an
“inhumane” and “inexcusable history of mistreatment of
black students.” Pet. App. 149a. Only by ignoring the fact
that “ tpjeople gravitate toward school facilities, just as
schools are located in response to the needs of people”
(Swann, 402 U.S. at 20), can it even be suggested that
school authorities did not “ influence the patterns of resi
dential development of a metropolitan area and have im
portant impact on composition of inner-city neighborhoods”
(id. at 20-21), or that such pervasive school discrimination
does not “promote segregated residential patterns which,
when combined with ‘neighborhood zoning,’ further lock the
school system into the mold of separation of the races.”
Id. at 21.
Take Willard, Garfield and Wogaman, which were con
verted into blacks-only schools by transferring their white
students and faculties to other schools. Would a white
family observing these circumstances, which identified these
schools as undesirable for whites, ever consider residing in
the Garfield, Willard or Wogaman attendance areas? It
seems highly unlikely, at best. And how about a black
family observing (as many did, see pp. 15-16, 18-19, supra)
the degrading forms of discrimination practiced against
black elementary and high school students who attended
predominantly white schools, and who would never have
contact with black adult teachers and administrators in
those educational settings'? Would such a family be likely
to seek residence in an area near one of the white schools,
or would they be more likely to “gravitate” to an area
closer to the Dunbar high school and the three elementary
schools which had been clearly set aside for the ed
ucation of blacks only? The latter of the two proposi
tions is the only one that comports with common sense.
Even if after Brown the Board had done nothing more than
build “neighborhood schools” and engage in “neighborhood
zoning,” four decades of such overt discrimination had
plainly “lock[ed] the school system into the mold of sepa
ration of the races.” 402 TJ.S. at 21.68
And it was in this context that Swann (id. at 26) im
posed, and in which it must impose here,
a presumption against schools that are substantially
disproportionate in their racial composition. Where
the school authority’s proposed plan for conversion 63
63 This observation is, of course, buttressed by two additional
facts. First, the official racial discrimination by school authorities
built upon, incorporated and encouraged the corresponding and
continuing local custom of racial discrimination, exclusion, and
duality in housing. See note 5, supra. Second, the intentional
school discrimination continued after 1954 through the time
of trial. See pp. 113-24, supra. Intentionally segregative Board
practices with respect, for example, to optional zones, the similarly
“haphazard” school construction program resulting consistently
(and only) in a widespread pattern of one-race schools and addi
tions, and the coordinate assignment (through at least 1971) of
racially identifiable staffs to “black,” “ changing,” and “white”
schools, all served as signals to the community of the racial desig
nation of residential areas and contributed (perhaps imprecisely
but surely substantially) on a reciprocal basis to continuing housing
discrimination and segregation. Thus Dayton school authorities,
both before and after Brown, are at least as responsible for the
creation of an “ environment for segregation,” the “growth of fur
ther segregation,” and the “ loaded game board” here as in the
circumstances described in Swann and Keyes to justify systemwide
relief.
133
from a dual to a unitary system contemplates the con
tinued existence of some schools that are all or pre
dominantly of one race, they have the burden of show
ing that such school assignments are genuinely non-
discriminatory. The court should scrutinize such
schools, and the burden upon the school authorities
will he to satisfy the court that their racial composition
is not the result of present or past discriminatory
action on their part.
Petitioners have never claimed that they can meet this
burden if we are correct about the systemwide nature of
the violation.64 In our opening brief filed in the court
below in Brinkman IV, we said :65
In the instant case the Board has never tried to meet
this burden. As we understand the Board’s position
. . . , if plaintiffs are correct in their claim of a
systemwide violation, then the plan of desegregation
currently in place is as good a cure as any.
And in our brief filed in reply to the Board’s answering
brief for appellees, wre repeated this assertion:66
64 There has never been a contention in this case that the remedial
plan ordered by the district court following the court of appeals’
Brinkman II remand {see pp. 67-73, supra) exceeds the “ time or
distance of travel” limitations of Swann, 402 U.S. at 30. See p. 70,
supra. Following the court of appeals’ approval of this plan in
Brinkman III, the Board contended in its petition for certiorari
here, which was granted in Dayton I, that the plan ordered by the
district court required perpetual racial balance in violation of
Swann (see 402 U.S. at 22-25) and Pasadena City Bd. of Educ.
v. Spangler, 427 U.S. 424 (1976). This claim was not renewed on
remand from Dayton I, was not presented to the court below, and
is not presented here in either the petition for certiorari or in
petitioners’ brief.
66 See Brief for Appellants in 6th Cir. No. 78-3060 (served 21
February 1978) at p. 65.
66 See Reply Brief for Appellants (served 6 April 1978) at p. 29.
134
In our opening brief (pp. 63-64 and 65), we said that
“the Board has never . . . 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 viola
tion,” and that “ [a]s we understand the Board’s posi
tion . . . if plaintiffs are correct in their claim of a
systemwide violation, then the plan of desegregation
currently in place is as good a cure as any.” Defen
dants’ brief (pp. 39-42) does not dispute these state
ments. The Board, therefore, must be deemed to have
waived any defense that the systemwide nature of the
violation (if the Court agrees with our description of
it) had less than a systemwide impact.
As in their answer brief, petitioners did not take issue
with these statements in their oral argument before the
Sixth Circuit.
Against this background, the court of appeals’ Brinkman
IV opinion, upon finding a systemwide violation of the
nature alleged by respondents, concluded that the system-
wide remedial plan approved in Brinkman I I I should be
continued in effect. Pet. App. 214a-17a. Similarly, if this
Court agrees that the violation was systemwide and con
tinuing, it too must approve the plan now in place. Before
this Court, petitioners have not identified a single school
which they contend is “genuinely nondiscriminatory” under
the Swann remedial test, Petitioners have clearly and un-
mistakeably waived any such contention.67 The plan which
67 Even if petitioners’ persistent silence on this score is viewed as
a part of their tactical “all or nothing” litigation stance, they are
entitled to no benefits from this strategy. Petitioners are free in
the federal courts to take alternative, or even inconsistent, positions
without being prejudiced thereby. But we do not think this silence
is so much a strategy as it is an expression of preference: if there
has to be substantial desegregation in Dayton, then it is better,
as a matter of educational policy and of the long-run stability of
135
has now been in effect for nearly three full school years
holds real promise for converting Dayton into “a unitary
system in which racial discrimination would be eliminated
root and branch.” Green, 391 TI.S. at 438. That plan is due
to be affirmed under the precedents of this Court.
III.
Alternatively, Respondents Have Established, Under
K e y e s and the Facts Essentially Conceded by Petitioners,
an Unrebutted Prim a Facie Case of Systemwide Inten
tional Segregation Necessitating a Systemwide Remedy.
Here we take the factual case basically as it is conceded
by petitioners and demonstrate that respondents, even
under this restricted view of the ease, have made out an
unrebutted prima facie case of systemwide intentional seg
regation under the principles set forth in Keyes.™ 68
the community and the system, to desegregate on a systemwide
basis. I f this is the true meaning of petitioners’ silence, it is well-
founded (see pp. 153-56 of the Brief for Respondents in Columbus
Bd. of Educ. v. Penick, No. 78-610) and should command the def
erence of the courts. It is also the only sure way in this ease to
“ eliminate the discriminatory effects of the past as well as bar
like discrimination in the future.” Louisiana v. United States, 380
U.S. 145, 154 (1965), quoted in Green, 391 U.S. at 438 n.4.
68 In our principal argument about the nature of the violation,
Argument I, supra, we have relied on Keyes only for the proposi
tion that a dual school system, within the contemplation of Brown,
may exist even in the absence of the command or authority of
written state law. We showed that the record establishes the
existence of such a system as a matter of primary fact. Here
we show, in the alternative, that even if the case is accepted on
petitioners’ factual terms, proper application of the evidentiary
principles employed in Keyes requires the same conclusion. Appli
cation of the Keyes principles is discussed at greater length in the
Brief for Respondents in Columbus Bd. of Educ. v. Penick, No.
78-610, to which the Court is respectfully referred.
136
A. Respondents Have Made Out an Unrebutted Prim a Facie
Case of Intentional Across-the-Board Discrimination.
In their argument about the nature of the violation, peti
tioners concede that “in the 1951-52 school year 54.3% of
the black students in the system attended four schools that
were 100% black” (Pet. Br. 16), and in their argument
about remedy they seem to concede that this result was
originally intended by the Board. Pet. Br. 50.69 Peti
tioners’ express concessions, coupled with the unchallenged
and irrefutable record evidence (see note 69, supra), thus
establish that as of 1952 over 54% of the system’s black
pupils were in blacks-only schools, which continued as such
into the 1960’s, one of which operated on a systemwide dis
criminatory basis until that time; and that the pre-1951
systemwide policy of absolutely prohibiting contact between
black teachers and white children continued (with modifica
tions expressly based on racial discrimination) in effect
until at least 1969 through the 1951 discriminatory faculty-
assignment policy.
69 As noted at p. 126, supra, petitioners concede the unconstitu
tionality of their pre-1951 policy of assigning black teachers to
teach black children only, of operating Dunbar as a systemwide
blacks-only high school, and of various practices such as the sep
arate and unequal treatment of black pupils and teachers at Gar
field in the 1910’s and 1920’s, discrimination against black pupils
within predominantly white schools and in extracurricular activ
ities, and the transportation of black orphanage children to blacks-
only schools. While petitioners do not expressly acknowledge, they
also do not dispute, and never have, the following additional un
equivocal facts of record: Willard, Wogaman and Garfield ele-
mentaries were deliberately converted into blacks-only schools in
the 1930’s and 1940’s, all of which continued in that status at least
until 1962 (when Garfield and Willard were closed and most of
their pupils assigned to the old Dunbar building which was re
named McFarlane) ; that Dunbar continued as a blacks-only sys
temwide high school until 1962 (when it was replaced with the new
Dunbar building) ; that faculties continued to be assigned until
1969 in accordance with the explicitly racist 1951 faculty policy.
137
These intentionally discriminatory policies and prac
tices “did not relate to an insubstantial or trivial fragment
of the school system” {Keyes, 413 U.S. at 199),70 and it is
not even argued that they were confined to “ separate,
identifiable and unrelated units” {id. at 203) of the system
or school administration. Under the Keyes evidentiary
principles, these facts result in a prima facie case of sys
temic intentional discrimination even more powerful than
the case presented in Keyes. Petitioners are thus called
upon to show “that their actions as to other segregated
schools within the system were not also motivated by segre
gative intent.” 413 U.S. at 209; see also id. at 210-11.
Petitioners, in response to this prima facie case, primar
ily invoke their alleged “neighborhood school” policy. But
as we have seen {see pp. 114-15, 130-32, supra), this is not a
good defense because the alleged “neighborhood school sys
tem” came into rhetorical vogue only after 54% of the black
children and all of the black teachers had been enclosed in
educational ghettos and it was manifest that “neighborhood
schools” would largely serve segregative ends; because
there really never has been such a neutral “neighborhood
school” policy at work in Dayton, as evidenced by the wide
spread resort to “ optional zones,” many having immediate
racially segregative impact in situations where adherence
to “neighborhood school” precepts would otherwise have
resulted in desegregation;71 because, in wholesale contra
70 In Keyes the Court found a prima facie case on the basis of
intentional segregation directed at a part of the system containing
slightly less than two-fifths of the black pupil population, whereas
here the undisputed intentional discrimination (which resulted in
total segregation, cf. 413 U.S. at 199 n.10) was directed at over
one-half of the black student population and all of the teachers.
71 The district court correctly found in its initial violation ruling
that “ an ‘optional attendance zone’ is a limitation upon this
[‘neighborhood school’ ] concept and if carried to an ultimate con
clusion, effectively destroys it.” Pet. App. 12a-13a. The segrega
138
diction to such, precepts, Dunbar (blacks-only until 1962)
operated as a systemwide “ optional zone” until 1962, as did
Patterson Co-op (virtually all white through 1967) until
the time of trial. The Board’s school construction prac
tices, which had the most entrenching segregative impact,
also cannot persuasively be justified as the product of a
racially neutral “neighborhood school” policy, for two com
pelling reasons. First, there is nothing about such a policy,
not even as articulated by petitioners, which explains why
teachers were assigned to these new classrooms on a sys
tematic racial basis. The interrelationship between the
Board’s expressly discriminatory faculty assignment policy
and the construction of new classrooms serves only to
reinforce the presumption that petitioners’ school construc
tion practices were intentionally segregative on a massive
scale.72 Second, the district court’s unchallenged finding
that the Board’s school construction program was “hap
hazard” (Pet. App. 173a) severely undermines the pos
sibility that it was part of a consistent policy of any kind,
including a “neighborhood school” policy.73
In all of the above areas of school operation, therefore,
petitioners have failed to rebut respondents’ prima facie
case of intentional segregation. It necessarily follows,
tive genesis of optional zones in the early 1950’s (see pp. 43-46,
supra) holsters the conclusion that they were frequently infected
with segregative intent.
72 This presumption is also enhanced by the events surround
ing the closing of the old Dunbar and opening of the new
segregated Dunbar in 1962. See p. 40, supra.
73 The presumption that the Board’s school construction practices
were infected with segregative intent gains additional support
from the principle that an inference of such intent arises when
school authorities knowingly pursue actions which have the
“natural, probable and foreseeable result” of segregation and can
not be explained by the consistent application of racially neutral
criteria. See pp. 109-14 of the Brief for Respondents in Columbus
Bd. of Educ. v. Penich, No. 78-610.
139
under Keyes, that respondents have proved systemwide
intentional segregation.74
B. Respondents Have Also Proved Their Entitlement to a
Systemwide Desegregation Remedy.
At this juncture of the Keyes framework, the remedial
principles of Green and Swann come into play and, to the
extent that petitioners contend that less than a systemwide
remedy will eliminate all vestiges of intentional discrimina
tion from the system, they bear the burden of proving “that
a lesser degree of segregated schooling . . . would not have
resulted even if the Board had not acted as it did.” 413 U.S.
at 211; see also id. at 211 n.17 and 213. As shown in Argu
ment II, supra, petitioners have made no effort to bear this
burden, which they could not do in any event given the per
vasive impact of their intentionally segregative system-
wide conduct.75 The systemwide desegregation plan now
74 Petitioners have constructed a convoluted semantics argument
(Pet. Br. 13-39), the essence of which is to suggest that Keyes is
no longer good law. As we have shown throughout this brief,
however, the prima-facie-case principles laid down in Keyes have a
firm factual basis in the real world. Petitioners’ argument would
lack merit if Keyes were no more than a case about the proper
arrangement of the common-law rights of private parties. Their
argument clearly has no place in a case seeking to fulfill Brown’s
commitment to the command of the Fourteenth Amendment that
racial discrimination should play no part whatsoever in the arrange
ment of public affairs. See also Brief Amicus Curiae filed herein by
the American Civil Liberties Union, in contrast to the “respon
dents” brief filed here by the Ohio State Board of Education.
75 And, as pointed out in Argument IIA, supra, Dayton I has
not altered the remedial principles applicable in this context. See
also pp. 134-51 of the Brief for Respondents in Columbus Bd. of
Educ. v. Penick, No. 78-610. As the Court described the principle
in Milliken II, handed down the same day as the Dayton I opinion,
the remedy does not exceed the violation when it speaks, as does
the remedy imposed below, directly to it (433 U.S. at 281-82) :
The well-settled principle that the nature and scope of the
remedy are to be determined by the violation means .simply
that federal-court decrees must directly address and relate
in effect must therefore also be affirmed under this alter
native approach to the case.
IV.
The Decisions by This Court in the Columbus and
Dayton School Cases Are Critical to Meaningful Consti
tutional Review of Remaining Dual School Systems.
As we have demonstrated in Arguments I-III above, the
court of appeals in this case has properly applied the con
trolling constitutional standards to the undeniable facts
here of record. We believe that the judgment of the lower
courts in the companion Columbus case is just as demon
strably correct under this Court’s precedents and the rec
ord evidence there. See Brief for Respondents in No.
78-610. As a result, the Dayton Board’s charge (e.g., Pet.
Br. 12-13) that the Sixth Circuit is “ resisting” the decisions
of this Court is totally unwarranted. Nor is the Sixth
Circuit alone in providing meaningful constitutional review
in school cases pursuant to the application of this Court’s
rulings to the differing facts and local circumstances of
each case. See, e.g., Morgan v. Kerrigan, 509 F.2d 580 (1st
Cir. 1974), cert, denied 421 U.S. 963 (1975); Hart v. Com
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 Bd. of
Education v. Spangler, 427 U.S. 424 (1976) or if they are
imposed upon governmental units that were neither involved
in nor affected by the constitutional violation, as in MilliJcen I,
supra. Hills v. Gautreaux, 425 U.S. 284, 292-296 (1976). But
where, as here, a constitutional violation has been found, the
remedy does not “ exceed” the violation if the remedy is
tailored to cure the “ ‘condition that offends the Constitution.’ ”
MilliJcen I, supra, at 738. (Emphasis supplied.)
See also Hutto v. Finney, 437 U.S. 678, 687-88 (1978).
141
munity School Board, 512 F.2d 37 (2d Cir. 1975); Arthur
v. Nyquist, 573 F.2d 134 (2d Cir.), cert, denied, 47 U.S.L.W.
3224 (Oct. 2, 1978); Evans v. Buchanan, 555 F.2d 373 (3d
Cir.), cert, denied, 434 U.S. 880 (1977), 582 F.2d 750 (3d
Cir. 1978), cert, pending; United States v. Columbus Mu
nicipal Separate School Dist., 558 F.2d 228 (5th Cir. 1977),
cert, denied, 434 U.S. 1013 (1978); United States v. Texas
Educ. Agency, 564 F.2d 162 and 579 F.2d 910 (5th Cir.
1978), cert, pending; Higgins v. Board of Educ., 508 F.2d
779 (6th Cir. 1974); Oliver v. Michigan State Bd. of Educ.,
508 F.2d 178 (6th Cir. 1974), cert, denied, 421 U.S. 963
(1975); NAACP v. Lansing Bd. of Educ., 559 F.2d 1042
(6th Cir. 1977), cert, denied, 434 U.S. 1065 (1978); United
States v. Board of School Comm’rs, 474 F.2d 81 (7th Cir.),
cert, denied, 413 U.S. 920 (1973); United States v. School
List, of Omaha, 565 F.2d 127 (8th Cir.), cert, denied, 434
U.S. 1064 (1977); Kelly v. Guinn, 456 F.2d 100 (9th Cir.
1972), cert, denied, 413 U.S. 919 (1973); Johnson v. San
Francisco Unified School Dist., 500 F.2d 349 (9th Cir. 1974);
Keyes v. School District No. 1, 521 F.2d 465 (10th Cir. 1975),
cert, denied, 423 U.S. 1066 (1976). Snch cases dem
onstrate that the lower courts are not attempting, as
petitioners charge (Pet. Br. 12-13), “to achieve the same
sociological result in states which had no statutory ox-
constitutional mandate for segregated schools as occurred
in southern states where such mandates existed.” 76
76 Petitioners’ only suggestion (Dayton Pet. Br. 24-25 and
Columbus Pet. Br. 81-82) of a conflict in the legal standards ap
plied by the circuits to review the nature of violation and scope of
remedy in school cases is that the Ninth Circuit, unlike some of
the other circuits, may have a different point at which the burden
of going forward with evidence on segregative intent should shift.
Whether there is any substantive as opposed to semantic conflict
among the circuits on this narrow point is questionable. In all
events, as we demonstrated in Arguments I and II, concerning the
proof of continuing dual schooling here, that issue need not be
reached in this case at all; and, as we demonstrated in Argument
142
What petitioners seek in these two cases at bar, there
fore, is not the correction of any alleged aberration in the
nature of the appellate review provided by the Sixth Cir
cuit. Rather, as we stated at the outset of Argument (pp.
88-90, supra), petitioners seek to undermine the constitu
tional command of Brown I and II, and their progeny, that
actual desegregation is the proper remedy for intentional
school segregation that contributes to the current condition
throughout a local school district. This challenge to Keyes,
Swann, Green and Brown II is couched in terms of merely
“ interpreting” Dayton I to immunize any arguably “neigh
borhood school” approach from constitutional challenge
and meaningful relief. Dayton Pet. Br. 40-54; Columbus
Pet. Br. 52-79. But the upshot of petitioners’ “interpreta
tion” is that the desegregation remedy in school cases would
hereafter stop at the current level of residential segrega
tion to which petitioners’ actions contributed and which
remains almost complete here.
As we explained in the Introduction to Argument (pp.
74-82, supra), that was precisely the same claim raised by
school authorities and squarely rejected by this Court in
Swann. In Arguments I-III (pp. 88-139, supra) we demon-
stiated that this “ interpretation” of Dayton I is legally
foreclosed by the central holdings of Keyes, Swann, Green
and Dayton I and is factually contradicted by the record
evidence in this case. See also Brief for Respondents in
No. 78-610, where the equally manifest legal and factual
error of the defense is also demonstrated with respect to
the Columbus case.
I l l , plaintiffs surely made out a prima facie ease of systemwide
intentional segregation under Keyes, Washington v. Davis, and
Arlington Heights that defendants failed to rebut, whatever the
point at which the_ burden of producing evidence should shift from
plaintiff school children to defendant school authorities. See also
Brief for Respondents in the Columbus case, No. 78-610.
143
This restrictive “ interpretation” of the constitutional un
derstanding of the nature and extent of the intentional
school segregation violation and the scope of the essential
desegregation remedy would necessarily retire Brown I
and II to a largely symbolic “Hall of Fame.” The words
of their brave declarations might stand, but their practical
meaning, and that of Green, Swann, Keyes and Dayton I—
actual desegregation as the remedy for intentional segrega
tion—would fall by the wayside.77 The “ remedy” in these
two cases, and almost every other school case imaginable
hereafter, would be continued one-race schooling to the
full extent of the current residential segregation. In
essence, petitioners’ “interpretation” of Dayton I asks this
Court to withdraw, for all practical purposes, from its
considered commitment to actual desegregation as the
remedy for racially dual schooling.78
On Brown’s twenty-fifth anniversary, the Dayton Board
offers Dayton’s black school children almost complete re
segregation in separate one-race schools, now and here
after. Such a racially stigmatizing lesson would only
“affect their hearts and minds in a way unlikely ever to
be undone,” Brown I, 347 U.S. at 494. Instead, this Court
should inform both the Dayton school children and the
Dayton school authorities that the systemwide plan of de
77 As we demonstrated in Argument II, pp. 126-30, supra,
Dayton I held that in circumstances where the violation is
genuinely limited or isolated (as in optional zones between three
high schools), the remedy must be limited to the impact of the
violation, and the causation inquiry must look to the segregative
effect of these limited violations rather than make an unwarranted
leap to systemwide relief; in addition, however, Dayton I con
firmed that Swann and Keyes control full force, in a case such
as this, with a history of longstanding and continuing dual school
ing. See note 58, supra.
78 See U.S. Commission on Civil Rights, Desegregation of the
Nation’s Public Schools: A Status Report (February, 1979).
144
segregation now in effect remains the proper remedy for
the basically dual system of schooling existing through the
time of trial.
CONCLUSION
The judgment below should be affirmed in all respects.
March 1979.
Robert A. Murphy
Norman J. Chachkin
Lawyers’ Committee for Civil
Rights Under Law
520 Woodward Building
733 Fifteenth Street, N.W.
Washington, D.C. 20005
R ichard A ustin
Suite 1500
First National Bank Bldg.
Dayton, Ohio 45402
Respectfully submitted,
Nathaniel, R. Jones
NAACP General Counsel
1790 Broadway
New York, New York 10019
Paul R. D imond
O’Brien, Moran and Dimond
320 North Main Street
Ann Arbor, Michigan 48104
W illiam B. Caldwell
Louis R. Lucas
R atner, Sugarmon & Lucas
525 Commerce Title Building
Memphis, Tennessee 38103
Attorneys for Plaintiff's-Bespondents
Mark Brinkman, et al.
MEIIEN PRESS INC — N. Y, C. 219