Eckels v. Ross Brief for the United States in Opposition
Public Court Documents
December 1, 1970
Cite this item
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Brief Collection, LDF Court Filings. Dayton Board of Education v. Brinkman Brief for Respondents, 1976. 48a31b71-af9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/2be1e01b-6f53-4a15-8474-382f44f563a4/dayton-board-of-education-v-brinkman-brief-for-respondents. Accessed April 06, 2025.
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IN THE
^uprrmr Court of thr Inttrfc
October Term, 1976
No. 76-539
D ayton B oard of E ducation, et al., Petitioners,
v .
Mark B rinkman, et al., Respondents.
On Writ of Certiorari to the United States Court of Appeals
for the Sixth Circuit
BRIEF FOR RESPONDENTS
Robert A. Murphy
Norman J. Chachkin
W illiam E. Caldwell
Lawyers’ Committee For
Civil Rights Under Law
520 Woodward Building
733 Fifteenth Street, N.W.
Washington, D. C. 20005
Richard A ustin
Suite 1500
First National Bank Building
Dayton, Ohio 45306
Paul R. D imond
O ’Brien, Moran & Dimond
210 East Huron Street
Ann Arbor, Michigan 48104
Louis R. Lucas
Ratner, Sugarmon, Lucas,
Salky & Henderson
525 Commerce Title Building
Memphis, Tennessee 38103
Nathaniel R. Jones
1790 Broadway
New York, New York 10019
Attorneys for Respondents
P ress of Bykon S. A dams P kinting, Inc., W ashington , D. C.
TABLE OF CONTENTS
T able of A u th o rities ............................................................... iii
P r elim in ar y S tatem en t .......................................... 1
C o u nterstatem ent of Q uestions P r e s e n t e d ................. 3
S tatem en t of th e Case ............................................................. 3
A. Prior Proceedings ............................................... 3
B. The Dayton District ........................................... 7
C. The Pre-Brown Dual System............................... 8
D. Continuation of the Dual System After Brown.. 20
1. Faculty and Staff Assignments ..................... 20
2. Optional Zones and Attendance Boundaries 24
3. The Board’s Rescission of Its Affirmative
Duty ........................................................ 30
E. The District Court’s Decision and Supplemental
Order on Remedy ......................................... 35
P. Brinkman I ........................................................ 43
G. Remedial Proceedings ...................................... 45
S u m m a r y of A rg u m en t ............................................................. 55
A rg u m en t .............................................................. 56
I. The Board Operated a Basically Dual School
System at the Time of Brown Which Was Not
Disestablished Prior to Implementation of the
Desegregation Plan Ordered Below ................. 58
A. A Dual System Existed in the Dayton Pub
lic Schools at the Time of Brown I .................. 61
B. The Board Never Complied With Brown II 68
Page
11 Table of Contents Continued
Page
II. Alternatively, Plaintiffs Made Out an Unre-
bntted Prima Facie Case of System-Wide In
tentional Segregation Requiring a Similar
Remedy ............................................................. 72
A. Plaintiffs’ Made Out a Prima Facie Case of
System-Wide De Jure Segregation............... 72
B. The Board Has Failed to Rebut Plaintiffs’
Prima Facie C ase........................................ 79
III. The System-Wide Desegregation Plan Ordered
Below Does Not Impose a Fixed Racial Balance
as a Matter of Substantive Constitutional Right,
and the Plan Contains No Other Impermissible
Features ............................................................. 85
A. The Courts Did Not Order a Fixed Racial
Balance Either for Now or for E v er ......... 87
B. The Board’s Resegregation Argument Is
Wrong .......................................................... 93
IV. Plaintiffs Have Standing to Bring This Case in
Their Own Right and as Representatives of the
Class ................................................................... 95
Conclusion ................................................................................. 101
A ppendix A ................................................................ la
1. School Construction, Closing and Site Selection. . la
2. Grade Structure and Reorganization.................... 4a
3. Pupil Transfers and Transportation.................... 5a
A ppendix B 11a
Table of Authorities iii
Cases: Page
Adams v. Richardson, 480 F.2d 1159 (D.C. Oir. 1973)
(en banc) ......................................................... 31n
Alexander v. Holmes County Bd. of Educ., 396 U.S.
19 (1969) .............................................. 90n
Armstrong v. Brennan, 539 F.2d 625 (7th Cir. 1976). . 66n
Barrows v. Jackson, 346 U.S. 249 (1953) ...................... lOOn
Baxter v. Savannah Sugar Refining Co., 495 F.2d 437
(5th Cir.), cert, denied, 419 U.S. 1033 (1974)....... 81n
Berenyi v. District Director, 385 U.S. 630 (1967).......... 81n
Board of Educ. v. State, 45 Ohio St. 555, 16 N.E. 373
(1888) ......................................... .......................... 8
Board of Educ. of School Dist. of City of Dayton v.
State ex rel. Reese, 114 Ohio St. 188, 151 N.E. 39
(1926) ................................................ 11
Board of School Comm’rs v. Jacobs, 420 U.S. 128
(1975) .................................................................... 99
Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973) (en
banc), aff’d in part & rev’d in part, 418 U.S. 717
(1974) ............................................................. 66n, 75n
Brinkman v. Gilligan, 539 F.2d 1084 (6th Cir. 1976),
cert, granted sub nom., - ---- - U.S. —— (Jan. 17,
1977)............................................................... 2, passim
Brinkman v. Gilligan, 518 F.2d 853 (6th Cir.), cert, de
nied sub nom., 423 U.S. 1000 (1975) ............ 2, passim
Brinkman v. Gilligan, 503 F.2d 684 (6th Cir. 1974) 2, passim
Brown v. Board of Educ., 349 U.S. 294 (1955) .. .3, passim
Brown v. Board of Educ., <347 U.S. 483 (1954) . . 56, passim
Brown v. Weinberger, 417 F.Supp. 1215 (D.D.C. 1976). 31n
Castaneda v. Partida, 45 U.S.L.W. 4302 (U.S. March
23, 1977) ............................................................... 65n
Clemons v. Board of Educ. of Hillsboro, 228 F.2d 853
(6th Cir. 1956) ...................................................... 65n
Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972) ............ 81n
Cooper y. Aaron, 358 U.S. 1 (1958) ......................... 56, 93
Costello v. United States, 365 U.S. 265 (1961) ........... 81n
Dandridge v. Williams, 397 U.S. 471 (1970) .............. 73n
Davis v Board of School Comm’rs, 402 U.S. 33 (1971)
41, 59n, 69
Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976)...... 81n
Drummond v. Acree, 409 U.S. 1228 (1972) ................ 86n
Gonzales v. London, 350 U.S. 920 (1955) .................... 81n
Green v. County School Bd., 391 U.S. 430 (1968)....
58, 70, 71, 72
IV Table of Authorities Continued
Page
Hart v. Community School Bd. of Educ., 512 F.2d 37
(2d Cir. 1975) .................................................. .. . 66n
Higgins v. Board of Educ. of City of Grand Rapids,
508 F.2d 779 (6th Cir. 1974) ............................. 46, 47
Hunter v. Erickson, 393 U.S. 385 (1969) .............. 78n, 81n
Johnson v. Goodyear Tire <& Rubber Co., 491 F.2d 1364
(5th Cir. 1974) ...................................................... 81n
Kelsey v. Weinberger, 498 F.2d 701 (D.C. Cir. 1974).. 31n
Keyes v. School Dist. No. 1, 413 U.S. 189 (1973).. 3, passim
Loving v. Virginia, 388 U.S. 1 (1967) ......................... 81n
McDaniel v. Barresi, 402 U.S. 39 (1971) ............. 59n, 7In
McLaughlin v. Florida, 379 U.S. 254 (1964) .............. 81n
Milliken v. Bradley, 418 U.S. 717 (1974) .................... 87n
Monroe v. Board of Comm’rs, 391 U.S. 450 (1968) . . . .
56, 58n, 70, 93
Monroe v. Pape, 365 U.S. 167 (1961) ......................... 68n
Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 1974), cert.
denied, 421 U.S. 963 (1975) .................................. 66n
New York Times Co. v. Sullivan, 376 U.S. 254 (1964). . 81n
North Carolina State Bd. of Educ. v. Swann, 402 U.S.
43 (1971) ................................................. 59n, 71n, 77n
Nowak v. United States, 356 U.S. 660 (1958) ............. 81.n
Nyquist v. Lee, 402 U.S. 935 (1971), aff’g 318 F.Supp.
710 (W.D. N.Y. 1970) (three-judge court) ......... 77n
Oliver v. Michigan State Bd. of Educ., 508 F.2d 178
(6th Cir. 1974), cert, denied, 421 U.S. 963 (1975)
66n, 84
Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424
(1976) .................................... 54, 56, 88n, 92, 98, 99 100
Pettivay v. American Cast Iron Pipe Co., 404 F.2d 211
(5th Cir. 1974) ...................................................... 81n
Plessy v. Ferguson, 163 U.S. 537 (1896) .................... 68
Potts v. Flax, 313 F.2d 284 (5th Cir. 1963) ................ lOln
Raney v. Board of Educ., 391 U.S. 443 (1968) ........... 58n
Rodrigues v. East Texas Motor Freight, 505 F.2d 40
(5th Cir. 1974), cert, granted, 44 U.S.L.W. 3670
(U.S. May 24, 1976) ..............................................lOOn
Schneiderman v. United States, 320 U.S. 118 (1943)... 81n
Senter v. General Motors Corp., 532 F.2d 511 (6th Cir.
1976) .......................................................................lOOn
Shapiro v. Thompson, 394 U.S. 618 (1969) .............. 84n
Smith v. Board of Educ., 365 F.2d 770 (8t,h Cir. 1966) 95
Sosna v. Iowa, 419 U.S. 393 (1975) ............................. 99
Table of Authorities Continued v
Page
Stanton v. Stanton, 45 U.S.L.W. 3506 (U.S. Jan. 25,
1977) .............. ...................................................... 63n
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402
U.S. 1 (1971) ............................................... 40, passim
Trafficante v. Metropolitan Life Ins. Go., 409 U.S. 205
_ (1972) .............................' ......................................lOOn
United States v. Board of School Comm’rs, 322 F.
_ Supp. 655 (S.D. Ind. 1971) ................................. 12n
United States v. Chesterfield County School Dist., 484
_ F.2d 70 (4th Cir. 1973) ...........'............................. 81n
United States v. Montgomery County Bd. of Educ.,
395 U.S. 225 (1969) ....................'.......................... 23
United States v. New York, N.H. & H.R.R., 355 U.S.
253 (1957) .................. ' ......................................... 78n
United States v. School Dist. of Omaha, 521 F.2d 530
(8th Cir.), cert, denied, 423 U.S. 946 (1975).. 66n, 75n
United States v. Texas Educ. Agency, 467 F.2d 848
(5th Cir. 1972) (en banc) .................................... 75
Village of Arlington Heights v. Metropolitan Housing
Dev. Corp., 45 U.S.L.W. 4073 (U.S. Jan. 11, 1977)
65n,78n
Warth v. Seldin, 422 U.S. 490 (1975) ....................... 98
Washington v. Davis, 426 U.S. 229 (1976) .................
65n, 71n, 78n, 81n
Whitely v. Wilson City Bd. of Educ., 427 F.2d 179 (4th
Cir. 1970) .............................................................. lOOn
Woodby v. Immigration & Naturalisation Service, 385
U.S. 276 (1966) ..._.............................................. 81 n
Wright v. Council of City of Emporia, 407 U.S. 451
(1972) .............................................. 71n
Statutes and Rules:
20 U.S.C. §§ 1701 et seq. (Equal Educational
Opportunities Act of 1974) ............................. 46, S6n
20 U.S.C. §1702(b) .................................................. 46, 86n
28U.S.C. § 1292(b) ...................................................... 46
42 U.S.C. § 1981 ........................................................... 4
42 U.S.C. §§ 1983-1988 ................................................ 4
42 U.S.C. § 2000d (Title VI of the Civil Rights Act
of 1964) ...................................................... 4, 23, 30, 74
O hio R ev . C ode § 3319.01 ............................................. 34n
85 O hio L aw s 34 . ........................................................................... 8
Rule 23, F ed. R. C iv . P..................................... 96, 99, lOOn
Rule 53, F ed . R. C iv . P. ............................................... 50
Rule 801(d) (2), F ed. R. E vid.......................................... 99
Other Authorities:
C. M cC o rm ick , L aw or E vidence (1954) ....... ........... 81n
M oore ’s F ederal P ractice (2d ed. 1974) ............. 97, lOOn
J. W igmore, E vidence (3d ed. 1940) .................... 78n, 81n
McBain, Burden of Proof: Degrees of Relief, 32 Calie .
L. R ev. 242 (1944) ......................................... 81n, 82n
Note, Reading the Mind of the School Board: Segre
gative Intent and the De Facto/De Jure Distinc
tion, 86 Y ale L.J. 317 (1976) ............................... 65n
Notes of the Advisory Committee on 1966 Amend
ments to Rule 23 ................................................... lOOn
Ohio Attorney General Opinion No. 6810 (July 9,
1956) ....................................................................... 32n
vi Table of Authorities Continued
Page
IN THE
§it*imue (Burnt irl % WnxUb §tnte$
October Term, 1976
No. 76-539
D ayton B oard of E ducation, et al., Petitioners,
Y .
Mark B rinkman, et al., Respondents.
On Writ of Certiorari to the United States Court of Appeals
for the Sixth Circuit
BRIEF FOR RESPONDENTS
PRELIMINARY STATEMENT
At least two good things are happening in Dayton,
Ohio, this school year for the first time ever. Black
and white children are attending public school to
gether in significant numbers, and their attendance in
this fashion is pursuant to a desegregation plan which
is fair and equitable to both races and demeaning to
neither. Second, the Equal Protection Clause of the
Fourteenth Amendment to the Constitution as appli
cable to public education is receiving substantial vindi
cation in the Dayton school district. These happy re-
2
suits derive from unhappy circumstances; longstand
ing policies and practices of de jure segregation re
quiring federal judicial intervention. This lawsuit has,
to date, produced numerous hearings, opinions and or
ders in the district court, three appeals and one denial
of certiorari. The case appears considerably more com
plex than it actually is, however, primarily because the
district judge grappled most ineffectively with settled
constitutional principles and terminology and most re
luctantly with the facts. But the essential determina
tive facts have been found by the courts below or they
are uncontestable. On the basis of these facts, the
United States Court of Appeals for the Sixth Circuit
Court has, on three separate occasions, adjudged plain
tiffs’ constitutional right to a system-wide remedial
plan of pupil desegregation based on the nature and
extent of the violation. Brinkman v. Gilligan, 503 F.2d
684 (6th Cir. 1974) [hereinafter, “ Brinkman I ” ] ; 518
U2d 583 (6th Cir.) [“ Brinkman I / ” ], cert, denied stib
nom., 423 U.S. 1000 (1975) ; 539 F.2d 1084 (6th Cir.
1976) [“ Brinkman I I I ” ], cert, granted sub nom.,------
U.S. —- (1977) (the instant case). Following Brink-
man I I the district court appointed a Master and,
upon receipt of his report, ordered into effect a plan
of desegregation which has considerable potential for
uprooting two-thirds of a century of unabated state-
inflicted racial separation in the Dayton public schools.
That plan has been approved in Brinkman I I I as a
fair, sensitive, flexible and otherwise equitable re
sponse to the entrenched constitutional wrong.
In proper perspective, therefore, this case raises the
following:
3
COUNTERSTATEMENT OF QUESTIONS PRESENTED
1. Did the Dayton Board of Education meet its bur
den of showing that it dismantled the basically dual
school system inherited at the time of Brown v. Board
of Education, 347 U.S. 483 (1954), following which the
system-wide racial segregation extant at the time of
trial adventitiously reappeared'?
2. Did the Dayton Board, under Keyes v. School
District No. 1, 413 U.S. 189 (1973), rebut plaintiffs’
prima facie case of system-wide intentional segrega
tion1?
3. I f the Dayton Board failed to meet either of these
burdens, did the system-wide remedial plan of pupil
desegregation approved below require a fixed racial
balance or otherwise constitute an abuse of equitable
discretion ?
4. Do plaintiffs have standing to bring this action
in their own right and as representatives of the class *?
STATEMENT OF THE CASE
A. Prior Proceedings
Black and white parents and their minor children
attending the Dayton, Ohio public schools, and the
Dayton Branch of the National Association for the
Advancement of Colored People [hereinafter, “ plain
tiffs” ], filed their complaint April 17, 1972 in the
United States District Court for the Southern District
of Ohio. Defendants included the Dayton Board of
Education and its individual members, and the Super
intendent of the Dayton Public Schools [hereinafter
“ petitioners” or “ Dayton Board” or “ Board” ], and
the Governor, Attorney General, State Board of Edu
4
cation and Superintendent of Public Instruction of
Ohio [hereinafter, “ State defendants” ].1 Plaintiffs
alleged that all of these defendants were responsible
for operating a racially segregated public school sys
tem in violation of the Fourteenth Amendment and
federal civil rights statutes, 42 U.S.C. §§1981, 1983-
1988, and 2000d.
Trial limited by the district court to whether the
Dayton public schools are unlawfully segregated by
race pursuant to actions of the Dayton Board began
November 13, 1972 and concluded on December 1. On
February 7, 1973 the district court issued its Findings
of Fact and Memorandum Opinion of Law concluding
that various actions on the part of the Dayton Board
defendants and their predecessors “ are cumulatively
in violation of the Equal Protection Clause.” A .12.2
The Court thereupon ordered the Dayton Board to
1 The State defendants are not parties to this appeal, as no
orders have been entered against them below. The State Superin
tendent and the State Board of Education have, however, filed an
amicus brief with this Court, the principal purpose of which
appears to be to get this Court to prejudge an issue now pending
in the district court: a motion filed by the Dayton Board seeking
an order requiring the State defendants to participate in the
implementation of the desegregation plan ordered below. We cau
tion only that the figures set out in the State Board’s amicus brief
(pp. 2-3) have not been tested in the adversary process, and no
assumptions about them are warranted.
2 “ A . ------ ” references are to the printed two-volume appendix.
With respect to matters not included in the appendix, we cite to
the original record in the same manner employed by petitioners.
See Pet. Br. at 17n.l. “ R .I.” refers to the pages in the con
secutively-paginated twenty-volume transcript of the November-
December, 1972 violation trial; “ R .II.” to the transcript of the
February 1975 remedial hearing; and “ R .III.” to the December
1975 and March 1976 remedial hearing. “ P X ” refers to plain
tiffs’ evidentiary exhibits and “ D X ” to those of defendants.
5
submit a remedial plan of desegregation; the Dayton
Board purported to comply through a submission of
March 29, 1973. A.131-44. By its Supplemental Order
on Remedy filed July 13, 1973 (A.25-31), the district
court, while expressing disappointment at the Board’s
submission, approved the Board’s limited proposal on
a tentative basis. Both plaintiffs and defendants ap
pealed.
On August 20, 1974 the Court of Appeals for the
Sixth Circuit filed its opinion in Brinkman 1, 503 F.2d
684 (A.32-69). The court of appeals affirmed the dis
trict court’s finding that the Dayton school system
was being operated in violation of the Constitution,
but the court of appeals also concluded that the
Board’s proposed cure for that violation was inade
quate in light of the scope of the violation. A.68. Ac
cordingly, the case was remanded to the district court
to formulate a constitutionally adequate desegregation
plan. The Dayton Board did not seek review in this
Court of the judgment in Brinkman I.
On remand the district court, by order of January
7, 1975 (A.70-72), directed the submission of new de
segregation plans, upon which (A.144, 154) a hearing
was held on February 17, 19 and 20, 1975. On March
10, 1975 the district court entered an Order provision
ally adopting another limited plan submitted by the
Board. A.73-84. The plaintiffs immediately appealed
seeking summary reversal on the ground that the plan
and the reasoning adopted by the district court wrnre
plainly inadequate and in direct conflict with the man
date of the court of appeals.
On June 24, 1975 the court of appeals issued its
opinion in Brinkman II, 518 F.2d 853 ( A.89-96). The
court denied plaintiffs’ motion for summary reversal
6
because of the short time remaining before commence
ment of the 1975-76 school year; but the court re
manded the case with directions that the district court
“ adopt a system-wide plan for the 1976-77 school
year that will conform to the previous mandate of
this Court and to the decisions of the Supreme Court
in Keyes and Sivann.” A.96. The court of appeals di
rected that its mandate issue forthwith. The Dayton
Board sought review in this Court, and certiorari was
denied on December 1,1975. 423 U.S. 1000. On remand,
following evidentiary hearings and the appointment
of a Master, the district court entered an order on
March 23 (A .110-13) and a judgment on March 25 (A.
114-16), modified by order of May 14, 1976 (A .117),
essentially adopting the desegregation plan recom
mended by the Master but granting the Board the
option to implement equally effective alternatives.
Defendants’ appeal was heard on an expedited basis,
and the court of appeals issued its decision in Brink-
man I I I on July 26, 1976, 539 F.2d 1084 (A.118-23).
The court rejected the Board’s objections to the plan
of desegregation approved by the district court. The
court of appeals and Circuit Justice Stewart denied
the Board’s applications for stay on August 16 and
August 19, 1976, respectively. The plan thus became
operative at the start of the 1976-77 school year, as
required by Brinkman I I and confirmed by Brinkm.an
III. This Court granted the Dayton Board’s petition
for a writ of certiorari on January 17, 1977.
The various opinions and orders below will be de
scribed in greater detail as they appear chronologically
in the remainder of this Statement. Part B provides a
summary overview of the Dayton school district. Parts
C and D below then describe the facts adduced at the
7
November 1975 violation trial. (The facts relating to
violation issues which have been reserved for decision
by the court of ajjpeals are summarized in Appendix
A, attached hereto.) The remaining parts summarize
the lower courts’ opinions and orders, as well as the
facts adduced at the remedial hearings which are per
tinent to the disposition of the case in this Court.
B. The Dayton District
As reflected in the report (A.157-58) of the Master
appointed by the district court, the city of Dayton,
Ohio, 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 o f Ohio, approximately 50
miles due north of Cincinnati. The Dayton school dis
trict is not coterminus with the city ; some parts of the
school district include portions of three surrounding
townships and one village, while some portions of the
city are included in the school districts of three ad
jacent townships. The total population residing within
the Dayton school district boundaries is 268,000; the
school pupil population in 45,000, slightly less than
50% of whom are black. Prior to implementation of
the desegregation plan here at issue, the vast majority
of black and white pupils had separately attended
schools either virtually all-white or all-black in their
pupil racial composition. E.g., A. 49-51, 311-315 (P X
2A-2E), 502-506 (P X 100A-100E), 588-589 (D X C U ).
The Dayton district is bisected on a nortk/south line
by the Great Miami River. Historically, the black
population has been concentrated in the south-central
and southwest parts of the city, primarily on the west
side of the Miami River and south of the east-west
W olf Creek. See A.577-79 (1940, 1950 and 1960 census
8
tract maps). The black population continues to be con
centrated in the southwest quadrant, but there is now
also a substantial black population in the northwest
quadrant across W olf Creek. Extreme northwest Day-
ton and most of the city east of the Miami River are
and have been heavily white in residential racial com
position. See A .580 (1970 census tract map).
Geographically and topographically there are no
major obstacles to complete desegregation of the Day-
ton school district. A .121. The Master determined that
where pupil transportation is necessary, the maximum
travel time would be about twenty minutes. A .162. As
found by the Board’s experts, due to the compact na
ture of the system, “ the relative closeness of the Day-
ton Schools makes long-haul transportation[,] an
issue in many cities[,] moot here.” A.304. Thus, there
is no issue whether the time or distance of transporta
tion is here excessive or otherwise poses any threat
to the health or education of pupils.
C. The Pre-Brown Dual System
In 1887 the state of Ohio repealed its school segre
gation 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). The laud
able goals of that legislation wrere not attained in Day-
ton until the current school year.
The facts of racial segregation in the Dayton public
schools, as revealed by the record before the Court,
begin in 1912.3 In that year school authorities assigned
3 Many of the facts set forth in this part of the statement were
admitted by all Dayton Board defendants in their responses to
9
Louise Troy, a black teacber, to a class of all-black
pupils just inside the rear door of the Garfield school;
all other classes in this brick building were occupied
by white pupils and white teachers. About five years
later, four black teachers and all of the black pupils
at Garfield were assigned to a four-room frame house
located in the back of the brick Garfield school build
ing with its all-white classes. Shortly thereafter, a two-
room portable was added to the black “ annex” mak
ing six black classrooms and six black teachers located
in the shadow of the white Garfield school. A four-
room “ permanent” structure was later substituted
(about 1921 or 1922), and eight black teachers were
thus assigned to the eight all-black classrooms in the
Garfield annex. A.209-11.4
About 1925 school authorities learned that two black
children, Robert Reese and his sister, had been at
plaintiffs ’ pre-trial Requests for Admissions, served on October 13,
1972. The Superintendent and three Board members filed responses
separate from those of the Board and its four “ majority” mem
bers. These facts were also the subject of extensive and largely
uncontroverted evidence at trial.
4 In 1917 the black classes in the black annex at Garfield con
tained about 50 black children per room. A.210. Thereafter, Mrs.
Ella Lowrey, a black teacher for several decades in the Dayton
system, taught a class of 42 black children when white teachers
inside the brick building had classes of only 20 white pupils.
A.211.
Mrs. Lowrey’s service began in 1916 and continued through
1963, with several years’ interruption at various times. In her
words, “ doing 40 years service in all in Dayton, . . . I never
taught a white child in all that time. I was always in black
schools, black children, with black teachers.” A .215. (At one time
during this early history prior to 1931, one black teacher, Maude
Walker, taught an ungraded class of all-black boys at the Weaver
school. All other black teachers in the system were assigned to the
black annex at Garfield. A. 186.)
10
tending 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 River. A.197.6 The Reese
children were ordered by school authorities to return
to the Garfield school, but their father refused to send
them to the black Garfield annex. Instead, he filed a
lawsuit in state court seeking a writ o f mandamus to
compel Dayton school authorities to admit children
of the Negro race to public schools on equal terms with
white children. A. 198. In a decision entered of record
on December 24, 1925, the Court of Appeals of Ohio
denied a demurrer to the mandamus petition. This de
cision was affirmed by the Ohio Supreme Court and
5 During this time, there apparently were some other black
children also in “ mixed” schools. For example, Mrs. Phyllis
Greer attended “ mixed” classes at Roosevelt high school for three
years prior to 1933. A .182. Bid; even when they were allowed to
attend so-called “ mixed” schools, black children were subjected
to humiliating discriminatory experiences within school. At Roose
velt, for example, black children were not allowed to go into the
swimming pool and blacks had separate showers while Mrs. Greer
was there (A. 183-83); while Robert Reese was at Roosevelt, there
were racially separate locker rooms and blacks were allowed to
use the swimming pool, but not on the same day whites used it
A.198-99. At Steele High School, black children were not allowed
to use the pool at all during this period. A.290-91.
Even in the “ mixed” classrooms black children could not escape
the official determination that they were inferior beings because
of the color of their skin. Mrs. Greer vividly remembers, for ex
ample, “ when I went to an eighth grade social studies class I was
told by a teacher, whose name I still remember, . . . that even
though I was a good student I was not to sit in front of the
class because most of the colored kids sat in the back.” A .183.
And she remembers with equal clarity that, while in the second
grade at Weaver, she “ tried out for a Christmas play and my
teacher wanted me to take the part of an angel and the teacher who
was in charge of the play indicated that I could not be an angel
. . . because there were no colored angels.” R.I.479.
11
Dayton school authorities were specifically reminded
that state law prohibited distinctions in public school
ing on the basis of race. Board of Education of School
District of City of Dayton v. State ex rel. Reese, 114
Ohio St. 188, 151 N.E. 39 (1926).
Following this state court decision Robert Reese
and a few of his black classmates were allowed to at
tend school in the brick Garfield building, but the black
annex and the white brick building were otherwise
maintained. Black children were allowed to attend
classes in the brick building only if they asserted them
selves and specifically so requested. A .212-13. Other
wise, they “ were assigned to the black teachers in the
black annex and the black classes. ’ ’ A.213.6
The black pupil population continued to grow at
Garfield, and another black teacher was hired and as
signed with an all-black class placed at the rear door
of the brick building. A.213. In 1932 or 1933, Mrs.
Lowrey (see note 4, supra), was also placed in the
brick building, again with an all-black class “ in a little
cubbyhole upstairs,” making ten black teachers with
ten black classes at Garfield. A .214. Finally, around
1935-36, after most of the white children had trans
ferred out of Garfield, school authorities transferred
all the remaining white teachers and pupils in the
brick building to other schools and assigned an all
6 During the pendency of the Reese case, the eight black teachers
assigned to the Garfield annex were employed on a day-to-day
basis because school authorities did not know whether the black
teachers were going to be in the Dayton system after the lawsuit.
Black teachers would not be needed if the courts required the
elimination of all-black classes, since the Board deemed black
teachers unfit to teach white children under any circumstances.
A.211-12.
12
black faculty and student body to Garfield. A .186-187,
214-15, 524 (P X 150 I ) ; P X 155 (faculty directories).7
But the black pupil population was growing during
these years, and even the conversion of Garfield into
a blacks-only school was not sufficient to accommodate
the growth. So, with the state court decision in the
Reese case now eight years old, the Dayton Board con
verted the Willard school into a black school. The
conversion process was as degrading and stigmatizing
as had been the creation and maintenance of the Gar
field annex and the ultimate conversion of the brick
Garfield into a black school. In the 1934-35 school year,
six black teachers (who were only allowed to teach
black pupils) and ten white teachers had been assigned
to the Willard school. In September of 1935, all white
teachers and pupils were transferred to other schools,
and Willard became another school for black teachers
and black pupils only. A. 186-87, 524 (P X 150 I ) ; P X
155 (faculty directors).
At about this same time, the new Dunbar school,
with grades 7-9, opened with an all-black staff and an
all-black student body. A.524 (P X 150 I ) .8 The Board
7 Throughout this period and until 1954, black children from a
mixed orphanage, Shawn Acres, were assigned across town to the
black classes in the black G-arfield school, while the white orphan
children were assigned to nearby white classes and white schools.
A .181-82. This practice was terminated following the Brown deci
sion in 1954 at a time when the black community in Dayton was
putting pressure on the school administration to stop mistreating
black children. A.483 (P X 28).
8 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 Attacks 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. Dunbar was
13
resolution opening Dunbar stated that grades 7 and
8 were to be discontinued at Willard and Garfield9 and
“ that attendance at the . . . Dunbar School be optional
for all junior high school students of the 7th, 8th, and
9th grade levels in the city.” A.227, 539 (P X 161 A ).
Of course, this meant only all Hack junior high stu
dents, since Dunbar had an all-black staff who were
not permitted by Board policy to teach white children.
A.186, 228; P X 155 (faculty directors).
Within a very short time, grades ten, eleven and
twelve were added to the black Dunbar school. Then in
1942, just two years after the Dayton school authori
ties had reorganized to a K-8, 9-12 grade structure,
the Board again assigned the seventh grades from the
all-black Willard and Garfield schools to the all-black
Dunbar school. A.227, 520 (P X 161 B ). Black chil
dren 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. A .190;
E.I. 1226-27. Many white children throughout the west
side of Dayton were assigned to Boosevelt high school
past or away from the closer but all-black Dunbar high
school. See P X 47 (overlay of 1957 attendance boun
daries).10 Although some black children were allowed
also excluded from competition in the city athletic league until
the late 1940’s, thereby requiring Dunbar teams to travel long
distances to compete with other black schools, even those located
outside the state. A.183, 205-06; R.I.569-70.
9 These two black elementary schools served grades 7 and 8,
whereas the system prior to 1940 was otherwise generally organized
on a K-6, 7-9, 10-12 grade-structure basis. R.I. 1871.
i° p rior to 1940, no high schools had attendance boundaries.
R.I.1886. The black Dunbar school was located in close proximity
to the Roosevelt high school (see PX 47) which, although it always
had space, apparently had too many black children. Along with
14
to attend Roosevelt, those who became “ behavior
problems” were transferred to Dunbar. A .184. And
other black children from various elementary schools
were either assigned, channeled, or encouraged to at
tend the black Dunbar high school. A.238-39, R.I. 574!1
Even these segregative devices were not sufficient to
contain the growing black pupil population. So be
tween 1943 and 1945, the Board, by way of the same
gross method utilized to convert the Willard school 11
Steele and Stivers, these high schools were located roughly in the
center of the city and served high school students throughout the
city. (In addition, the Parker school had been a city-wide single
grade school which served ninth graders. R.I.1921-22; A.288-89.)
In 1940 attendance boundaries were drawn for the high schools
with the exception of Dunbar and a technical school (whose name
varied), both of which long thereafter remained as city-wide
schools. See note 22, infra, and accompanying text.
Dunbar continued until 1962 as a city-wide all-black high school.
In that year the Dunbar building was converted into an elemen
tary school (renamed McFarlane) with attendance boundaries
drawn to take in most of the students previously attending the
all-black Williard and Garfield schools, which were simultaneously
closed. McFarlane opened with an all-black faculty and all-black
pupil population. At the same time, a newly-constructed Dunbar
high school opened with both asigned faculty and students over
90% black. A.315 (P X 2E), 316 (PX 4), 508 (PX 130C), 248;
PX3.
11 The most effective means of forcing black children to attend
the blacks-only Dunbar, of course, was the psychological one of
branding them unsuited for association with white children. See
note 5, supra. As Mr. Reese testified, he “ chose” Dunbar over
Roosevelt after suffering the humiliation of being assigned to
separate locker rooms, separate showers, and separate 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.” A.199. Similarily, Mrs. Greer testified: “ I went to
Dunbar because I felt that if there was going to be— if we were
going to be separated by anything, we might as well be separated
by an entire building as to be separated by practices.” A.183.
15
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 September 1945 the
Board assigned a black principal and an all-black fac
ulty with an all-black student population to the Woga
man school. A.183-84, 200, 524 (P X 1501); P X 155
faculty directories).
Still other official devices were used to keep blacks
segregated in the public schools. One such, device, re
sorted to regularly during the 1940’s and early 1950’s,
was to cooperate with and supplement the discrimina
tory activities of Dayton public housing authorities.
Throughout this period, racially-designated public
housing projects were constructed and expanded in
Dayton. A .178-79, 510 (P X 143 B ). In 1942, the Board
transferred the black students residing in the black
DeSoto Bass public housing project to the Wogaman
school (A.540 (P X 161 X ) ) , and a later overflow to
the all-black Willard school, rather than other schools
that were equally close (A .185), while transferring
white students from the white Parkside public hous
ing project to the McGuffey and Webster schools and
the eighth grades from those schools to the virtually
all-white Kiser school. A.540. Then in the late 1940’s
and early 1950’s, the Board leased space in white and
black public housing projects for classroom purposes,
and assigned students and teachers on a uniracial basis
to the leased space so as to mirror the racial composi
tion of the public housing projects. A.179-80, 513-23
(P X 143 J ).
By the 1951-52 school year (the last year prior to
1964 for which enrollment data by race is available),
16
the Dayton Board was operating what southern edu
cators would immediately recognize as a dual school
system. During that year there were 35,000 pupils en
rolled in the Dayton district, 19% of whom were black.
There were four all-black schools, officially designated
as such: Willard, Wogaman, Garfield and Dunbar.
These schools had all-black faculties and (with one
exception, an assignment made that school), no black
teachers taught in any other schools. P X 3. In addi
tion, there were 22 white schools with all-white facul
ties 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%). A.506 (P X 100E).
These latter schools were generally located in the area
surrounding the location of the 4 designated all-black
schools. These few schools with substantial racial mix,
however, were marked by patterns of racially segre-
gatory and discriminatory practices within the school,
and, with the one exception noted above, none had any
black teachers. Eighty-three percent of all white pu
pils attended schools that were 90%, or more white in
their pupil racial composition. Of the 6,628 black pu
pils in the system, 3,602 (or 54%) attended the four
all-black schools with all-black staffs; and another
1,227 (or 19%) of the system’s black pupils were as
signed to the adjacent schools which were about to be
converted into “ black” schools ( see note 12, infra, and
accompanying text). Thus, 73% of all black students
attended schools already or soon to be designated
‘ ‘ black. ’ ’
In December 1952 the Dayton Board confronted its
last pre-Brown opportunity to correct the officially-
imposed school segregation then extant. Instead, the
17
Board acted in a manner that literally cemented in the
dual system and promised racially discriminatory pub
lic schooling for generations to come. What the Board
did is referred to in the record as the West-Side Re
organization, and it involved a series of interlocking
segregative maneuvers.
At this time, the Board was under pressure, as its
record reflect, from “ the resistance of some par
ents to sending their children to school in their dis
trict because it is an all negro [sic] school.” A.499
(P X 75). In response, the Board constructed a nevT
all-black school (Miami Chapel) located near the all-
black Wegaman school and adjacent to the black De-
Soto Bass public housing project; Miami Chapel
opened in 1953 with an all-black student body and an
85% black faculty. A.316 (P X 4). The Board altered
attendance boundaries so that some of the children
in the four blaeks-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. A .257-65, 283-84;
P X 123.12 And the Board began to assign black teach
12 The boundaries of the black Garfield and Wogamon schools
were retracted, thereby assigning substantial numbers 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). A .506 (P X 100E). Jack-
son and Edison were re-zoned to include more black students, and
their outer boundaries were effectively contracted through the
creation of “ optional zones” so that white residential areas be
came attached, for all practical purposes, 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 “ transi-
18
ers to these formally mixed schools, thereby confirm
ing their identification as schools for blacks rather
than whites. A.259-60; P X 3.
This latter aspect of state-imposed segregation—
i.e., faculty assignments on a racial basis “ pursuant
to an explicit segregation policy of the Board” (A.56)
—also underwent a slight change in school board pol
icy. Prior to this time, as previously noted, the Board
would not allow black teachers to teach white children
under any circumstances; black teachers were assigned
only to all-black schools, and white teachers were as
signed only to white and “ mixed” schools. Accord
ingly, in the 1951-52 school year, the Board substituted
a new, but equally demeaning, faculty assignment
policy (A.481 (P X 21)) :
The school administration will make every ef
fort to introduce some white teachers in schools
in negro [sic] areas that are now staffed by ne
groes [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 hay
ing mixed or white populations when there is evi
dence that such communities are ready to accept
negro [sic] teachers.
tion” schools. The Board also created optional zones in white
residential areas contained within the boundaries of the original
four schools for blacks only, so that whites could continue to
transfer out of these all-black schools. A.257-65. Prior to 1.952
whites had been freely allowed to transfer to “ whiter” schools,
but such transfers were abolished in 1952. A.262, 482 (P X28).
Optional zones were thus substituted for the prior segregatory
transfer practice. (The optional-zone technique is discussed in
greater detail at pages 24-30, infra.
19
This faculty policy, incredibly, was contained in a
statement of the Superintendent disavowing the ex
istence of segregated schools in the Dayton district.1,1
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. This segregation had not been
imposed by state law; indeed, it was operated in open
defiance of state law.
13 In 1954 the Superintendent made a further statement, which
included the following: “ All elementary schools have definite
boundaries and children are obliged to attend the school which
serves the area in which they reside. The policy of transfers from
one school to another was abolished two years ago when the
boundaries of several westside elementary schools were shrunken,
permitting a larger number of Negro children to attend mixed
schools.” A.482 (P X 28). As we have seen (see note 12, supra),
however, the elimination of free transfers was accompanied by a
new device, optional zones, which served the same purpose of
allowing whites to avoid attendance at black or substantially black
schools.
The Superintendent’s 1954 statement also contains the followr-
ing (A.483) :
About two years ago we announced a policy of attempting
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 teachers in negro [sic] schools is more dif
ficult 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 we shall also show (see pages 20-24, infra), this raee-based as
signment of faculty continued for almost twro more decades as a
primary device for earmarking schools as intended for blacks or
whites.
20
D. Continuation of the Dual System After Brown
Consideration of the Board’s segregatory conduct
following this Court’s decision in Brown may he di
vided into six general areas: (1) faculty and staff
assignments, (2) optional zones and attendance boun
daries, (3) Board rescission of a Board-adopted plan
of desegregation, (4) school construction, closing and
site selection, (5) grade structure reorganization, and
(6) pupil transfers and transportation. W e summar
ize seriatim the facts relating to the first three areas.
The facts pertaining to the latter three areas, and
their legal significance, have been contested by the
Board, and the court of appeals has reserved decision
with respect to these practices. Since in our view dis
position of this issue is not essential to affirmance of
the judgment below, we have summarized the facts re
lating to these latter three areas in Appendix A, at
tached hereto.14
1. Faculty and Staff Assignments
The Board continued to make faculty and staff as
signments in accordance with the racially discrimina
tory policy announced in 1951 (see page 18, supra)
14 One of the three areas discussed in this part of the State
ment—faculty and staff assignments—was discussed by the court
of appeals in Brinkman 1 in part IV of its opinion, entitled ‘ 1 Other
Alleged Constitutional Violations,” on which the court reserved
decision. A.56-67. But “ Staff Assignment” (A.56-61) is included
in that part of the opinion only because of plaintiffs’ contention,
implicitly rejected by the district court (see page 37, infra), that
staff assignments at the time of trial continued to be made on a
racially discriminatory basis. It is clear from the court of appeals’
unqualified determination of the pre-1971 facts pertaining to staff
assignments that the appellate court did not consider these prac
tices to be the subject of dispute or of adverse district court find
ings. See note 47, infra.
21
at least through the 1970-71 school year. 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 com
positions, 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. A.320 (P X 5D).
Prior to the 1968-69 school year, the Board main
tained teacher applications on a racially separate
basis. Once teachers were hired, their records were
kept on various racial bases which were used to segre
gate teachers and schools. Substitute teacher files were
color-coded by race and substitutes assigned on a
racially dual basis. And the Board restricted the hir
ing, transfer, and promotion of black teachers pri
marily to black or “ changing” schools while white
assignments or transfers to these schools were dis
couraged. A.191-95, 201, 204-05, 187-91; P X 3; R.I.
673-88, 536-542, 731-35, 742,50, 762-69. Principals, as
sistant principals, counselors, coaches and other cleri
cal and classified personnel were assigned on an even
more strictly segregated basis. A.486 (P X 42), 234,
191-93. Thus, from at least 1912 through 1968 the as
signment of personnel in the Dayton school system
fit perfectly the classical mold of state-imposed segre
gation: such assignments mirrored the racial compo
sition of student bodies at new schools and additions,15
and continued to correspond to the racial identity of
15 The Board assigned faculty members to these new schools and
additions so as to reflect the pupil racial composition at opening,
thereby tailoring them as “ black” or “ white” in accordance with
the Board’s policy. A.316-17 (P X 4), 275; R.I.1860.
22
those schools already all-black or in transition.16 White
teachers similarly were assigned in disproportionate
numbers to the predominantly white schools.17 It was
therefore possible at anytime during this period to
identify a “ black” school or a “ white” school any
where 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,
“ H E W ” ] began an investigation of the Dayton public
schools to determine whether official policies and prac
16 In the 1963-64 school year, for example, the Board assigned
40 of 43 new full-time black teachers to schools more than 80%
black in their racial compositions. A .319 (P X 5A). Although
somewhat less obvious, this practice was equally effective in
identifying the formerly mixed schools as changing or black by
assigning more than token black faculty only to these schools and
thereafter assigning increasing numbers of black teachers only
to these schools. P X 3; A .195-97, 224. As articulated by Mrs.
Greer, a long-time black student, teacher and administrator in
the system (see note 5, supra), the “ assignment of staff to go
along with the neighborhood change was the kind of thing that
gave the impression of the schools being designed to be black,
because black staff increased as black student bodies increased.”
A .191.
17 Thus, for example, in the 1968-69 school year, the Board con
tinued to assign new teachers and transfers according to the fol
lowing segregation practice (A .319 (P X 5 A ) ) :
Schools with
predominantly
white student
enrollment
Schools with
predominantly
Mach student
enrollment
Black Teachers 40 95
White Teachers 223 64
As the Superintendent testified, “ it is obvious in terms of the
new hires and transfers for that year the predominating pattern
was the assignment of black teachers to black schools and white
teachers to white schools.” A.233.
23
tices with respect to race were in compliance with
Title V I of the Civil Eights Act of 1964. By letter of
March 17, 1969, the Acting Director for the Office of
Civil Rights of H EW notified the Dayton Superin
tendent (and the chief state school officer) that “ [a]n
analysis of the data obtained during the [compliance]
review establishes that your district pursues a policy
of racially motivated assignment of teachers and other
professional staff.” A.415 (P X H A ). Following this
determination the Dayton Board agreed with H EW
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”
(A.416 (P X 11F)), in accordance with the principles
set forth in this Court’s decision 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 de
segregation by September 1971. A.417. Nevertheless,
by the time of trial in November 1972, it was still pos
sible to identify many schools as “ black schools” or
“ white schools” solely by the racial pattern of staff
assignments.18
No non-racial explanation for the Board’s long his
tory of assigning faculty and staff on a racial basis is
possible.19 Nor can the impact of this manifestation of
18 The manner in which the Board’s assignment of its profes
sional staff at the high school level, for example, still served to
racially identify schools, athough considerably less dramatically
than prior to the 1971-72 school year, is demonstrated by a table
set out by the court of appeals in Brinkman I. A.57. Moreover,
classified personnel (e.g., secretaries, clerks, custodians and cafe
teria workers) continued to be assigned on a racially segregated
basis. A .234.
19 School officials, of course, had absolute control over the place-
24
state-imposed segregation on student assignment pat
terns by 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.20
2. Optional Zones and Attendance Boundaries
W e have already shown how the Dayton Board uti
lized optional zones and attendance boundary manipu
lation as segregative devices in connection with the
1952 West-Side Reorganization (see pages 16-18, su
pra). There are additional examples of both practices
which stand on their own as segregation techniques.
Optional zones are dual or overlapping zones which
allow a child, in theory, a choice of attendance between
two or more schools. A.241. Yet, the criteria stated by
the Board for the creation of both attendance boun
daries and optional zones are precisely the same: they
constitute merely a type of boundary decision and
ment of their employees. Consequently, the Board’s historic race-
oriented assignments of faculty members intentionally earmarked
schools as “ black” or “ white.” A.274.
20 Dr. Robert L. Green, Dean of the Urban College and Pro
fessor of Educational Psychology at Michigan State University,
described how such faculty-assignment practice “ facilitates the
pattern of segregation” (A.197) in these terms (A .195):
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 de
segregation occurs, be it on a voluntary basis or under court
order, the effect remains that school is yet perceived as being
a black school or white school, especially if at this point in
time the pupil composition of those schools are essentially
uni-racial or predominantly black or predominantly white.
See also A.274-75.
serve no other educational or administrative purpose.
A.238, 279. Optional zones have existed throughout the
Dayton school district and have apparently been cre
ated whenever the Board is under community pressure
which favors attendance at a particular school or dis
favors attendance at a particular school. A.254; R.I.
1818-19. Other than for such purely “ political” rea
sons, there is no rationale which supports the estab
lishment of an optional zone rather than the creation
of an attendance boundary, which is a more predict
able pupil-assignment device (A.280) ; and optional
zones are at odds with the so-called “ neighborhood
school concept.” A.12-13.
In many instances in Dayton optional zones were
created for clear racial reasons, as, for example, in the
West-Side Reorganization, while in other instances
the record reveals no known reason for their existence.
But even in these latter instances some optional zones
have had clear segregative effects. From 1950 to the
time of trial, optional zones existed, at one time or
another, between pairs of schools of substantially dis
proportionate racial compositions in some fifteen in
stances directly effecting segregation at some 30
schools.21 In addition, at the high school level, Dunbar
remained in effect a city-wide optional zone for blacks 23
23 The West Side Reorganization in 1952-53 (see pages 16-18,
supra) involved six optional areas with racial implications: Wil-
lard-Irving, Jackson-Westwood, Willard-Whittier, Miami Chapel-
Whittier, Wogamon-Highview, and Edison-Jefferson. A .252-53,
257-65; see also note 12, supra. Other optional zones with demon
strable racial significance at some time during their existence
include the following: Three optional zones between Roosevelt and
the combination Fairview-White; two optional zones between Resi
dence Park and Adams; and optional zones between Westwood
and Gardenclale, Colonel White and Kiser, Fairview and Roth,
Irving and Emerson, Jefferson and Brown, and Jefferson and
Cornell Heights. A.250, 253-54, 255, 268-69, 279-83; PX 47-51.
26
only through 1962 when it was converted into an all
black elementary school (A.248, 269-71) (see note 10,
supra) ; and Patterson Co-Op remained a city-wide
and, through the 1967 school year, virtually all-white
optional attendance zone.22 In conjunction with the
attendance-area high schools, these two special 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 R.I.
1518-21, 1483-84.
Actual statistics on the choices made by parents and
children in four optional areas are available. In each
instance the option operated in the past, and in three
instances at the time of trial, to allow whites to trans
fer to a “ whiter” school. For example, in the Roose-
velt-Colonel White optional area, which was carved
out of Roosevelt originally, from the 1959-60 school
year through the 1963-64 school year a cumulative
total o f 1,134 white but only 21 black students at
tended Colonel White. A.464 (P X 15A1). Testimony
from a Dayton school administrator indicates that
from 1957 through 1961, although this optional area
was predominantly white, black students who lived in
the area attended Roosevelt which had become virtu
ally all-black (Colonel White was 1% black). A .221-22.
22 The city-wide Patterson Co-op operated in a more subtle segre
gative fashion than did Dunbar. In 1951-52, Patterson had no
black students and no black teachers (A .507 (P X 130B )); by
1963 its student body and faculty were only 2% black (A .508
(P X 130C)) ; and by 1968 the pupil population rose to 18.3%
black and the faculty to 3.5% black. A .509 (P X 130D). Students
were admitted to Patterson through a special process involving’
coordinators and counselors, none of whom were black prior to
1968. A .286-88. Patterson has over the years served as an escape
school for white students residing in black or “ changing” at
tendance zones, particularly Roth and Roosevelt. R.I. 1483-84.
27
The Roosevelt yearbook for 1962 shows that only three
white seniors from the optional area attended the
black high school. A.462 (P X 15A). As Mrs. Greer
testified, this optional area did “ an excellent job of
siphoning off white students that were at Roosevelt.”
A.190.23
Although many of these still-existing optional zones
had already fulfilled their segregative purpose by the
time of trial, over time they clearly contributed sub
stantially to and facilitated school segregation.
Moreover, even by the time of trial several of these
optional areas continued to permit whites to escape
to “ whiter” schools, thereby further impacting the
black schools and precipitating additional instability
and transition in residential areas.24
23 As another example, the Colonel White-Kiser option acquired
its racial implications after its creation in 1962 with the racial
transition of the Colonel White school, to which the Colonel
White-Roosevelt option contributed in no small measure. At its
inception and for several years thereafter, wThen both schools were
virtually all-white, most children in the White-Kiser option area
chose White. As Colonel White began to acquire more black stu
dents, whites chose Kiser more often until in the 1971-72 school
year, no white children chose the 46% black Colonel White school,
while 20 chose the 6% black Kiser school. A.465 (P X 15B1), 554.
The rebuttal figures provided by the defendants on the Resi
dence Park-Jackson optional area are equally instructive, because
the figures relate to a time when the optional area did not even
exist by reason of the construction of the virtually all-black Carl
son school and its assumption of the old Veterans Administration
optional area as its regular attendance zone. A .586, 587. In any
event, defendants’ exhibit shows that from 1957 through 1963
no children from the former V.A. optional area attended Jackson,
while 32 whites (and 8 blacks) attended Residence Park. In the
1957-58 school year, Residence Park was basically white and Jack-
son was black. A.250-51; R.I. 377. (By 1961, however, Residence
Park had become 80% black. A .508 (P X 130C).)
24 Prom 1968 through 1971, when Roosevelt was a 100% black
Formal attendance boundaries, in conjunction with
optional zones, have also operated in a segregative
fashion; and in some instances firm boundaries were
also drawn along racial lines.* 25 An example is the
boundary separating Roth and Roosevelt which was
drawn in 1959. Roth took almost all the white resi
dential 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 area, almost all
whites were thereby transferred out of Roosevelt by
school, for example, 375 white children from Roosevelt-Colonel
White optional area attended Colonel White. A.464. 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 at
tending Colonel White. A.462-64. Plaintiffs’ expert, Dr. Poster,
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.255],
[(generally where you have an optional zone which has
racial implications, you have an unstable situation that every
one 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 furth
er segregation . . . [A.254-55].
25 In some instances, and in addition to the official optional zones,
attendance boundaries have not been enforced for white children
when assigned to black schools. For example, a pupil locator map
made to assist in developing a middle school plan in the 1970-71
school year showed that many white children assigned by their at
tendance zone to the predominantly black Greene school were ac
tually attending predominantly white schools located on the other
side of W olf Creek. R.1.1210-11. A similar situation existed in the
Carlson area. See note 23, supra.
29
Board action, in short order converting Roosevelt into
a virtually all-black school. A.268-69; P X 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. P X 3.)
At about this same time, Meadowdale high school
also opened, but as a virtually all-white school. A.3T7
(P X 4). Opportunities were available for the place
ment of such high schools and use of the excess capa
city 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. R.I. 1696-1700; P X 6; A.249, 268-69. 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 con
verted the old Dunbar high school building into an
elementary school (renamed McFarlane), whose
newly-created attendance zone took in most of the stu
dents in the zones for the all-black Williard and Gar
field schools, which were closed. See note 10, supra.
Finally, the Board also persistently refused to re
draw boundaries between, or pair, contiguous sets of
schools which had been, and were at the time of trial,
substantially disproportionate in their racial compo
sitions. Examples of such contiguous pairs include
Drexel (8% black) and Jane Adams (79% black) ;
McGuffey (42%: black) and Webster (1% black) or
Allen (1 % black) ; Irving (99% black) and Emerson
(9% black); Whittier (99% black) and Patterson
30
(0% black). P X 68, 62. Suck alternatives to segrega
tion—many of which were recommended by subordi
nate school administrators and even the Ohio State
Department of Education (A.204-05, 419-55 (P X 12))
—-were rejected by the Board.
3. The Board’s Recission of Its Affirm,alive Duty
As reflected in the foregoing pages, black citizens
o f Dayton have 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 intentional efforts to segregate his chil
dren, was effectively blunted by Dayton school authori
ties committed to separation of the races. See pages
9-12, supra. During another critical period, 1951-52,
the Board imposed the West-Side reorganization and
a new racially discriminatory faculty-assignment pol
icy. See pages 16-19, supra. The black community’s re
peated protests following B-roivn to the continued
segregation also were turned aside. See A.358-59, 456-
57, 459-61. By the late 1960’s, however, those who ob
jected to state-imposed school segregation began to
gain allies, both in the white community in Dayton and
among state and federal agencies. As previously noted
(see pages 22-23, supra), H EW conducted a Title V I
compliance review in 1968 and forced the Board in
1969 to agree to end its racially dual faculty-assign
ment practices. HE W had also noted the “ substantial
duality in terms of race or color with respect to distri
bution of pupils in the various schools . . . ” (A.415),
but the agency did not pursue this concern with simi
larly aggressive action.26
26 As is commonly known, from the frequent judicial declara
tions on the subject, HEW has generally failed to fulfill its Title
31
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.” A.423. But these
were just words and informal ones at that. As the
State Assistant Superintendent for Urban Education
noted at the same time, there was a definite need for
action and not just words. A.422.
On April 29, 1971, the Board requested assistance
from the State Department of Education’s Office of
Equal Educational Opportunities to provide technical
assistance in the development of alternative desegre
gation 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. A.354-55.
The State Department of Education responded by
assembling a team of consultants and specialists to
evaluate data and make recommendations. Their re
commendations were submitted to the Dayton Super
intendent on June 7, 1971. A.419-55. The State De
partment advised the Dayton Board of its constitu
tional and other legal obligations (A.435) (emphasis
in original) :
Since the Board, as an agency of state govern
ment, has created the inequality which offends VI
VI obligations with respect to pupil desegregation in both the
North and the South. See, e.g., Adams v. Richardson, 480 F.2d
1159 (D.C.Cir. 1973) (en banc) ; Broivn v. Weinberger, 417 F.
Supp. 1215 (D.D.C. 1976). And it has not been notably aggressive
even with respect to faculty segregation. See Kelsey v. Weinberger,
498 F.2d 701 (D.C.Cir. 1974).
32
the Constitution, the Ohio State Department of
Education must advise that the Dayton Board of
Education clearly has an affirmative duty to com
ply with the Constitution; that is, as the Supreme
Court has stated, “ to eliminate from the public
schools all vestiges of state-imposed segregation.”
The State Department then turned its attention to a
list of alternatives, and urged the Dayton Board to
shoulder its constitutional obligations now (A.441)
(emphasis in original):
Belaying tactics could be continued. The Board,
in spite of resolutions and overt commitment,
could choose to make only the slightest mandated
changes, and to utilize the best legal talent avail
able to resist compliance with constitutional re
quirements. Other school districts have chosen
this alternative, even as Dayton has used similar
methods in the past. However, the highest court
in the land has stated the constitutional offensive
ness of state-imposed segregation of school-chil
dren, and persisting delay clearly violates the oath
of office of members of the Board of Education
in the state of Ohio.
The State Department concluded by recommending “ a
comprehensive plan” that would be a “ constitutionally
valid and inoffensive, educationally sound, and mor
ally proper” approach for “ the Dayton Board of Edu
cation, acting as an agency of Ohio State Oovern-
ment . . .” to take. A.444.27
27 Under the terms of Opinion No. 6810, issued by the Ohio At
torney General on July 9, 1956, the State Department of Educa
tion has the primary affirmative duty to see that local school dis
tricts comply with their Fourteenth Amendment obligations with
respect to public schooling. A .597-606.
33
The Board-appointed advisory committee of com
munity representatives became known as the “ Com
mittee of 75.” In his charge to the Committee, the
Dayton Board President stated: “ We have admitted
that the district is guilty of procedures which have led
to the racial isolation of school children.” A .356. The
Committee issued its report in the fall of 1971. The
Report of the Committee of 75 (A .345-69) also urged
the Board to adopt a comprehensive plan and joined
the State Department in emphasizing “ that time for
a change in Dayton has run out! We must act nowT.”
A.369.
On December 8, 1971 the Dayton Board of Educa
tion, for the first time ever, responded with meaning
ful action. It first “ recognize [d] and admit [ted] that
racial and economic segregation exists in the Dayton
schools because of the actions and inactions of this and
predecessor Boards in the establishment of attend
ance districts, the location and expansion of school
buildings, pupil assignment practices, design of cur
riculum suitable to urban needs, the assignment of
teachers and other staff, and the conduct of student
activity programs . . . .” A .321. The Board then
adopted a program of actual system-wide desegrega
tion and directed the Superintendent to implement
such a new pupil-assignment policy for the 1972-73
school year. The new policy consisted of two principal
parts: first, the existing attendance zones and the
Freedom of Enrollment policy28 were abrogated effec-
28 Tie Board’s Freedom of Enrollment policy was adopted in
1969. A.466-67. It had a very negligible, one-day desegregative ef
fect (i.e., a few black students transferring to white schools), but
white students did not transfer to black schools. A.478 (P X 16D).
As the Superintendent testified, “ the pattern . . . has been perva
34
five September 1, 1972; second, in their stead, a new
pupil-assignment policy was adopted, the goal of
which was that no school would have a racial compo
sition “ substantially disproportionate to the district
as a whole.” A.329. Pursuant to the Board’s direc
tions, the Superintendent of Schools adopted a plan
for Pall 1972 implementation prepared by Dr. Gordon
Poster and others of the Title IY Florida School De
segregation Consulting Center of the University of
Miami. A .370-414.
On January 3, 1972, however, a newly-constituted
Dayton Board29 rescinded the prior Board’s action of
December 8,1971, refused to consider the plan adopted
by the Superintendent, reinstated the Freedom of En
rollment policy and reimposed the segregated attend
ance zones. A.331-53.30 Plaintiffs instituted this action
on April 17, 1972, and the case went to trial in Novem
ber 1972.
At that time, the Dayton school district was segre
gated by race, as it always had been. In the 1971-72
school year (when the complaint was filed), there were
sive down through the years, that no white students, regardless of
from where they came, or the purpose,, were assigned to black
schools.” A.232.
29 Three new members of the seven-member Board had been elect
ed the previous November to take office in January.
30 By its actions, the new Board made it clear to the Superin
tendent that he would not be permitted to exercise his independent
authority over the assignment of pupils (see Ohio Rev. Code §
3319.01) to implement the desegregation plan. R.I. 1096. The stat
ute just cited vests the local Superintendent of Schools with the
responsibility to “ assign the pupils of the schools under his super
vision 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.
35
69 schools in the Dayton district; 49 of them had stu
dent enrollments 90% or more one race (21 black, 28
white). Of the 54,000 pupils enrolled, 42.7%c were
black; 75.9%, o f all black students were assigned to
the 21 black schools. A.314 (P X 2D ).81 Thus, although
the system was larger, it was basically the same dual
system that existed at the time of Brown (see page
15-16, supra) .31 32
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 (1972-74 school year) remained 90%o
or more black. Of the 25 white schools in 1972-73 (see
note 31, s-iipra), all opened 90% or more white and, if
open, were 90%, or more white in 1971-72, 1963-64,
and 1951-52. A.315 (P X 2E). See also Brinkman I ,
A.50-51.
E. The District Court's Decision and Supplemental Order
on Remedy
On February 7, 1973, the district court entered its
Findings of Fact and Memorandum Opinion of Law.
A.l-14. The district court dealt with the parties’ con
tentions and the evidence in a cursory fashion. It made
31 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). A.311 (P X 2 A ).
32 It was also the same one that existed in the 1963-64 school
year (the first year after Brown for which racial data is 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, 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 the 13 black
schools; and 88.8% of all pupils were enrolled in such one-race
schools. A.313 (P X 2C).
36
few specific findings of subsidiary fact, devoting most
of its attention to surprisingly general and imprecise
ultimate findings and conclusions. And it never shifted
the burden of proof from plaintiffs despite the prior
history of segregation.
With respect to the extensive and largely uncontro
verted proof of pre-Brown racial discrimination, the
court noted the “ isolated but repeated instances of
failure by the Dayton School Board to meet the stand
ards of the Ohio law mandating an integrated school
system.” A .2. The court concluded (A.3) :
While arguably consistent with the social mores
o f the times, the treatment of black children dur
ing this period was at least inhumane and by
present standards, reprehensible. . . . Both by
reason of the substantial time that has elapsed
and because these practices have ceased, however,
the foregoing will not necessarily be deemed to be
evidence of a continuing segregative policy.
With respect to the Dunbar high school, the court
found that it “ was intended to be, and did in fact
become, a black high school, with an all black teacher
and pupil population . . . . [that] continued to exist
as a city-wide all-black high school until it closed in
1962.” A.4-5. Except to note the black Garfield annex
in the 1920’s the court made no findings with respect
to the other black schools or the Board practices with
respect to public housing projects. The court also ig
nored the West-Side Reorganization (except to note
that the Westwood-Jackson optional zone had “ racial
significance at the time of its creation.” A.8). No
findings were made concerning the 1962 conversion of
Dunbar into the all-black McFarlane elementary serv
ing the former all-black Willard and Garfield attend
37
ance areas and the opening of a new Dunbar high
school with a virtually all-black faculty and student
body.
With respect to faculty and staff, the court found
that the Board’s intentionally segregative assignment
policies and practices could not “ be dismissed on a
deminimus theory.” A.3. The court found, however,
that “ [b ]y 1969 each school in the Dayton system had
an integrated teaching staff consisting of at least one
black faculty member,” and that faculty were there
after “ substantially integrated” pursuant to the
Board’s agreement with HEW . A.4. The district court
further found that the Board’s employment of blacks
in certain ‘ ‘ positions such as skilled craftsmen . . . re
mains substantially below the percentage of black
students population or the percentage of black teach
ers and administrators.” A.4.
As to the pattern of one-race schooling at the time
of trial, the court found that the “ great majority of
all schools” in Dayton are “ racially imbalanced, con
sistent with the black-white population and geographi
cal distribution thereof as shown by the 1970 census.”
A.5.33 With the exception of recent affirmative efforts
38 The court apparently uses the terms “ racial imbalance” and
“ racial balance” to mean, respectively, segregated and not segre
gated. In the “ racial imbalance” part of its opinion, the court
directs the reader’s attention to attached Appendix A, which lists
each Dayton school and its 1971-72 racial composition. The court
summarizes the elementary school situation in these words: “ Of
52 elementary schools in use as of September, 1972, 29 are more
than 90% white and 15 are more than 90% black. The balance
range from 19.4% to 60.2% black.” A.15. It seems fairly clear
that the .judge is referring to the 90%-plus one-race schools when
he says that the “ great majority . . . are racially imbalanced.”
A.5. And it is completely clear that the court does not equate “ ra
cial balance” with the system-wide black/white ratio, for no school
38
to desegregate Patterson Co-Op high school, “ no ef
fort has been made by the school board of Dayton to
balance by race the student population at any particu
lar school.” A.5.
The court generally found the Board’s practices
concerning school construction and site selection, at
tendance boundaries and grade structure reorganiza
tion, and transfers to he “ rational . . . and within the
sound discretion of the Board” (A.5.), “ neither segre
gative nor integrative” (A .6), “ neutral” (A .7), or
not “ unfairly operated.” A.9. Conceding that the
Board could have exercised its discretion differently
to choose among available alternatives which might
have integrated the schools (A .7), the court nonethe
less found that “ plaintiffs have failed in their burden
of showing that the defendant board exercised these
options in an improper fashion.” A.7. The court also
found: (1) unspecified “ errors in board planning”
apparently intensifying school segregation (A.7) ; (2)
a pattern of construction of new elementary schools
and additions in “ white neighborhoods” and “ black
neighborhoods” which opened and remain “ predomi
nantly” one-race (id) ; (3) the construction and loca
tion of new high schools “ which followed the pattern
of construction of elementary schools in that sites
were selected away from the center of the city” in one-
race areas (A.7) ; (4) a January 4, 1971 reorganiza
tion of middle schools having “ neither segregative
nor integrative effect” (A .6 ); and (5) a “ free trans
fer” program which failed even to “ reduce somewhat
has a pupil population correlating with that figure (which is about
43% black for the 1971-72 year). I f “ racial balance” meant that,
the court would have said every school (rather than just the “ great
majority” ) is “ racially imbalanced.”
89
racial imbalance and remove community perception of
‘black’ and ‘white’ schools.” A.9. (See Appendix A,
attached here., for a summary of the evidence with
respect to these practices.)
With respect to optional zones, the court discussed
the record with similar imprecision, but found, on
balance, that plaintiffs had met the burden of proof
imposed by the court. The court found that “ many
[optional zones] were created for the convenience of
parents. There has been evidence that at times this last
concept embraced desires motivated by racial consid
erations.” A.8. “ [R]acial significance” was attached
to the creation of Westwood-Jackson, Roosevelt-Col-
onel White, and Pairview-Roth. Id. Without other
wise making findings as to the role of optional zones
over time, the court found 11 current zones (7 at the
elementary and 4 at the high school level). Although
the elementary optional zones do not “ today have any
significant potential effects in terms of increased racial
separation, the same cannot be said of the high school
optional zones.” Id.
With respect to the 1972 Board’s rescission of the
1971 Board’s desegregation program, the court re
jected a “ parliamentary rules” argument by the
Board and concluded that the 1972 Board’s action
“ was not in the nature of a reconsideration but in
stead was a rescission of the previous action.” A.11.
As such, it “ constituted an independent violation of
the Equal Protection Clause rights enjoyed by the
black minority of Dayton.” Id.
Turning to the developing law applicable to chal
lenges to non-statutory racial segregation, the court
conceded its confusion and spoke of this case as “ a
40
square peg for the round holes ’ ’ of southern cases and
“ a round peg for the square holes o f ” northern cases.
A .11-12. The court concluded (A.12) :
What we have found are racially imbalanced
schools, optional attendance zones, and recent
Board action, which are cumulatively in violation
of the Equal Protection Clause. W e hold that the
totality of these findings require intervention by
this Court under the mandate of Brown v. Board
of Education . . . .
The court further noted that optional attendance
zones are totally inconsistent with “ the neighborhood
school concept.” A.12-13.
“ Without seeking to calibrate the degree o f segre
gation that inheres in individual policies of the
Board,” the court directed the Board to submit a plan
which would (1) abolish all presently remaining op
tional attendance zones, (2) restate the Freedom of
Enrollment policy so that “ no student of a minority
race may be denied attendance at any high school in
the Dayton Public School System and so that transfers
for purpose of improving racial balance take prece
dence over curriculum transfers,” (3) “ [mjaintain
faculty assignment policies that will reflect in each
school the approximate ratio of black to white faculty
throughout the district,” and (4) “ [establish hiring
policies that will enable the clerical and maintenance
personnel hired by the school board of Dayton to ap
proximate the proportion of black-to-white ratio of
the Dayton School District.” A.13 These four specific
criteria were deemed “ minimum” aspects of the plan
which, in addition, “ shall in all other respects con
form to the requirements of law. Swann v. Gharlotte-
Meclden'berg Board of Education, 402 U.S. 1 (1971);
41
Davis v. Board of School Commissioners of Mobile
County, Ala., 402 TJ.S. 33 (1971).” A.13-14.
On March 29, 1973 the Dayton Board submitted a
purported “ plan” to the district court which re
sponded to the four specifics of the district court’s or
der but went no further in the way of pupil desegrega
tion.34 In essence the plan submitted by the Board
merely expanded the “ free choice” options which the
district court had previously found (A.9-10) to be of
negligible impact on the segregated pattern of pupil
assignments. The Board refused to submit to the court
an alternative plan of actual desegregation supported
by the Superintendent and three of the seven Board
members. (A plan was also proposed by the Dayton
Classroom Teachers Association.) Plaintiffs filed ob
jections to the plan submitted by the Board majority,
and requested adoption of the more effective plan pre
pared by the Superintendent and the Board minority.
On July 13, 1973, the district court, without a hear
ing, entered an order approving, with one modifica-
iton, the relevant portions of the plan submitted by
the Board majority, although the court expressed its
“ disappointment at the limited nature” of the remain
ing aspects of the plan. A.27.35 Because this Court’s
84 The plan submitted by the Board majority contained discus
sion of seven points in addition to the four particular requirements
of the district court’s opinion. These points related to “ cultural
exchanges, ” “ control and learning centers, ’ ’ “ musical stereopti-
cons, ” and the like, all having nothing to do with actual school
desegregation but requiring considerable busing and expense. A.
131-144.
3o The district court modified the Board’s Freedom of Enrollment
proposal with respect to high school students. The court-ordered
modification did not impose “ majority to minority” transfers,
which limit transfers to those that have desegregative impact.
42
decision in Keyes v. School District No. 1,413 U.S. 189
(1973), had intervened between the district court’s
February decision on violation and its July remedial
order, the court apparently felt constrained to make
some additional points about the scope of the Board’s
constitutional obligation. Relying on the dissenting
part of Mr. Justice Powell’s separate opinion in
Keyes, the district judge listed a number of non-segre-
gative aspects of the Board’s current operation.* 36 The
court concluded (A.30) :
However, there has been evidence which indi
cates that the affirmative promotion of integra
tion through these essential functions of the
Board has not held an important place in the
Board’s priorities.
The Powell rationale will operate prospectively.
The Board’s planning and implementation units
must become capable of and sensitive to the racial
effects which flow from the drawing of attendance
lines, the construction and improvement of school
facilities and the assignment of faculty, staff and
pupils. All of such actions must henceforth be ex
amined for their “ integration impact.”
Rather, the court modification provided “ free choice” to all high
school students of any high school, subject to priorities for those
presently enrolled in a school and to space limitations. A.27-28.
36 The court found, inter alia, that “ [tjhere is presently no evi
dence of a failure of equality of facilities, instructions and cur
ricula opportunities nor has there been a persuasive proof that the
Board, in recent times, drew attendance lines or built new facilities
for the avowed purpose of minimizing integration.” A.30. This
holding was surprising, as the district court had refused to allow
any party to introduce proof concerning inequalities in these par
ticulars. R.I. 419-25, 1970, 1903. (HEW, in its 1969 Title VI non-
compliance letter to the Dayton Board, found “ that students at
Roosevelt High School are not afforded the same educational op
portunity as other students in [the] system.” A.416.)
43
The court ordered “ a retention of jurisdiction while
a reasonable period of time is given to the School
Board for this purpose.” A .31. The court, however, did
not consider or apply the standards established by the
Court in Keyes to determine the scope of the Board’s
constitutional obligation or in evaluating the evidence
of violation or the adequacy of jmoposed plans.
Plaintiffs’ appealed and the Board cross-appealed
to the United States Court of Appeals for the Sixth
Circuit.
F. Brinkman 1
On August 20, 1974 the Court of Appeals for the
Sixth Circuit filed its opinion on plaintiffs’ appeal
and the Board’s cross-appeal. A.32-69. Upon a careful
review of the portions of the record placed in dispute,
the court of appeals affirmed the district court’s con
clusion that there had been a cumulative violation of
the Equal Protection Clause, based on the long history
of unabated one-race schooling, the extensive use of
optional zones to promote segregation, and the pur
poseful rescission of a system-wide program of de
segregation. Moreover, because the Board did not con
test the pre-Brotvn violation, the court found it un
necessary to review the evidence and district court
findings in this regard. A.56.
The court also found it unnecessary to decide
whether the 1972 Board’s rescission of the 1971
Board’s desegregation plan was an independent vio
lation of plaintiffs’ constitutional rights. Decision on
this issue was unnecessary in the court’s view because
of its conclusion that at the relevant time the Board
was under an affirmative constitutional duty to de
segregate ; consequently, a rescission of affirmative
44
action taken in accordance with that constitutional
obligation served to compound the initial constitu
tional violation. A.55-56. The court of appeals also
concluded that prior to Brown the Dayton Board’s
faculty-assignment practices were carried out pursu
ant to “ an explicit segregation policy of the Board,”
and that the Board “ effectively continued in practice
the racial assignment of faculty through the 1970-71
school year.” A .50; see also note 14, supra. With re
spect to site selection and school construction, grade
structure reorganization, pupil transfers and trans
portation, and current faculty practices, the court of
appeals detailed some of the considerable evidence
supporting plaintiffs’ claim that the Board’s practices
in these areas also constituted independent constitu
tional violations. A .61-66. The appellate court, how
ever, reserved decision on the “ serious question with
respect to whether the District Judge’s failure to in
clude these . . . practices within the cumulative viola
tion” (A.66-67) was supportable because of its view
that the Board otherwise was under an affirmative
obligation to desegregate. A .67.
The court found the “ free choice” remedy ordered
by the district court ineffective and, therefore, consti
tutionally inadequate “ considering the scope of the
cumulative violations” ; the ease was accordingly re
manded with directions that a plan of desegregation
be developed consistent with the remedial guidelines
of Keyes and Swann. A.67-68. Quoting from Keyes,
413 U.S. at 200, the court concluded (A .68) :
Once the plaintiffs-appellants have shown that
state-imposed segregation existed at the time of
Brown (or any point thereafter), school authori
ties “ automatically assume an affirmative duty
45
. . . to eliminate from the public schools within
their school system ‘ all vestiges of state-imposed
school segregation.’ ” . . . When such a showing
has been made, “ racially neutral” plans which
fail to counteract the continuing effects of past
school segregation are inadequate.
Finally, the court rejected all other “ contentions of
the parties contrary to the conclusions reached in [its]
opinion . . . ” A .69.
G. Remedial Proceedings.
Following the Sixth Circuit’s remand in Brinkman
/, the district court entered an order on January 7,
1975 directing the Dayton Board and any other inter
ested parties to submit proposed plans of desegrega
tion. A.70-72. The Board submitted a proposed plan
(A.144-54), and plaintiffs also submitted a plan pre
pared by Dr. Gordon Foster, who had earlier prepared
a plan of desegregation for the Board pursuant to its
desegregation resolutions adopted in December 1971.
See page 34, supra. The plan submitted by the Board
was essentially a modification of the prior plan which
had been found inadequate by the court of appeals in
Brinkman I. Basically, it was a modified “ freedom of
choice” plan calling for the establishment in some
schools of programs not offered in others. These spe
cial-program schools would be called “ magnet schools”
and “ learning centers.” The programs offered were
to be designed to attract a limited bi-racial enrollment
on a voluntary and, in the main, part-time basis. See
A.144-54. At best, the Board’s “ curriculum plan”
would have entailed actual full-time desegregation for
only about 3,000 students, and another 3,400 students
were to be affected only on a part-time basis. A.296-98.
46
Plaintiffs plan, in contrast, was a plan of actual sys
tem-wide desegregation. See A.298-99.
On March 10, 1975, following a hearing on the plans
held February 17, 19, and 20, 1975, the district court
entered its order (A.73-84). The court found that
“ [pjlaintiffs’ plan is a comprehensive one; it was
carefully prepared and well-presented.” A.78. But the
court rejected plaintiffs’ plan (A.79), and adopted in
stead, on a provisional basis, the plan submitted by
defendants. A.79-81. The court reasoned that two in
tervening events “ may well have changed both ‘ the
nature of the violation’ and the ‘ scope of the rem
edy.’ ” A.76. The first of these “ events” was the de
cision in Higgins v. Board of Education of the City
of Grand Rapids, 508 F.2d 779 (6th Cir. 1974), a case
in which the Sixth Circuit had affirmed a district court
judgment that pupils had not been unconstitutionally
segregated on the basis of race. The second “ event”
was the Equal Educational Opportunities Act of 1974,
20 U.S.C. §§ 1701 et seq. The court determined that
this Act required rejection of plaintiffs’ plan. A.79.
Accordingly, the court adopted the Board’s plan on
a provisional basis, although it recognized the very
limited nature of the Board’s proposals, as well as its
failure to consider more promising alternative me
thods of accomplishing desegregation. The Board was
directed to study the feasibility of adopting more sig
nificant measures for the following school year. A.81.
The court certified its order for appeal pursuant to
the provisions of 28 U.S.C. § 1292(b), because of its
belief that its holdings with respect to the Equal Edu
cational Opportunities Act “ involve a controlling
question of law as to which there is substantial
grounds for a difference of opinion. . . . ” A .84.
47
Plaintiffs immediately appealed, moving for sum
mary reversal and requesting specific remedial direc
tives from the court of appeals. On June 24, 1975, the
court of appeals issued its opinion in Brinkman IT.
A.89-96. The court reiterated its previous opinion in
Brinkman I to the effect that the Board was guilty of
“ [segregative acts and practices . . . both before and
after the decision of the Supreme Court in Brown . . .
[which] have continued down to the present time.”
A.89-90. The court added: “ Although the phrase Ale
jure’ does not appear in our former opinion, the mean
ing of that decision is that the Dayton school system
has been and is guilty of de jure segregation prac
tices.” A.90. Upon analysis of the Board’s plan as
approved by the district court, the court of appeals
determined that the plan did not conform to the man
date in Brinkman I. A.91. The court recognized that
the Board’s plan “ contains some significant curricular
innovations and that it would be a step toward inte
gration of the Dayton school system,” but that it “ does
not even purport to dismantle Dayton’s one-race
schools other than Miami Chapel and Roosevelt High
School, and even if the magnet plans are successful,
the vast majority of one-race schools will remain iden
tifiable as such.” A.93. The court of appeals rejected
the district court’s view that the two intervening
“ events” —the Sixth Circuit’s decison in Higgins and
the Equal Educational Opportunities Act—supported
the limited remedy ordered. The court construed the
Act, in accordance with the terms of 20 U.S.C. § 1702
(b), “ as not limiting either the nature or the scope of
the remedy for constitutional violations in the instant
case.” A.95. With respect to the second “ event,” the
court said: “ There could be no possible merit in the
contention that the opinion of this court in Higgins,
48
relating to the school system of Grand Rapids, Michi
gan, altered in any way the nature of the cumulative
violations described in our former opinion in the
present case or the scope of the constitutional remedy
required by this court on the remand which we directed
in that opinion.” A.95. Indicating that it would be in
clined to grant plaintiffs’ motion for summary re
versal but for the difficulties of developing a “ com
prehensive plan” for the 1975-76 school year sched
uled to begin in September, the court remanded the
case to the district court with directions (1) to de
segregate as many one-race schools as possible by
September, 1975, (2) to enjoin the Board from re
assigning the Miami Chapel black students to other
all-black schools, and (3) to “ adopt a system-wide plan
for the 1976-77 school year that will conform to the
previous mandate of this court and to the decisions of
the Supreme Court in Keyes and Swann.” A.96. The
court of appeals directed that its mandate issue forth
with, and the Board’s application for a writ of cer
tiorari was subsequently denied by this Court. 423
U.S. 1000 (1975).
Upon the remand in Brinkman II, the district court
appointed an expert, Dr. Charles Glatt, to examine the
system and make desegregation recommendations. Dr.
Glatt was murdered in the midst of his work. There
after, both plaintiffs and the Board presented plans
to the district court, pursuant to its order of Novem
ber 5, 1975. The Board’s plan had been prepared by a
team of experts appointed by the Board. The Board
had voted to submit the plan to the court, but, by vote
of 4-3, the Board had refused to approve the plan.
A.305. The plan prepared by the Board’s experts uti
lized diverse choice, zoning and curriculum differentia
49
tion 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,
however, that approximately 15,000 pupils would have
to be transported under either the Board’s plan or
plaintiffs’ plan, and that, because of Dayton’s compact
nature and the efficiency of its thoroughfares, com
plete, effective desegregation could be accomplished
without presenting any threat to the health, safety or
education of schoolchildren due to factors of time,
distance and amount of transportation. A.304; R .III.
224; “ A Desegregation Plan for the Dayton, Ohio
Public Schools,” at 127, 138 (Dec. 2, 1975) [the
Board’s plan].
Following a December 8, 1975 hearing, the district
court entered an order on December 29, 1975 on the
plans submitted. A.99-106. After summarizing the na
ture of the plans, the limited nature of federal judicial
intervention, and the Board’s broad discretion in mat
ters of administrative and education policy (A.100-
02), the court made the following statement (A.102) :
In contrast to the foregoing, it is a constitu
tional right enforceable in the federal courts that
students, irrespective of race or residence, shall
share equally all facilities of a school system, both
the superior and the inferior.
The only feasible method of sharing requires
a balancing in each school between black and
white students in a ratio approximating the sys
tem-wide balance. Insofar as either plan will re
sult in an acceptable redistribution, such plan
meets the constitutional limitations set forth in
both the Swann and Keyes cases.
50
The defendants may adopt their own plan, may
adopt the plaintiffs’ plan, may combine the two,
or any parts thereof, provided that each school
in the school district 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 desegregated if it “ reflect[ed] this district
ratio plus or minus 15%,.” A.103. The court ordered
the Board to implement a plan seeking to achieve for
each school a “ pupil population approaching the dis
trict percentage, but deviating no more than 15%,
plus or minus.” Id. The court set forth two excep
tions to this requirement. First, it allowed all students
already enrolled in high schools to remain at their
present school through graduation because of the im
portance the court attached to high school “ loyalty.”
Id. Second, citing Swann, 402 U.S. at 24, the court
held that “ where a specific school should deviate fur
ther from the foregoing percentages by reason of geo
graphic location, the Court will consider such in
stances on a school by-school basis.” A.104. The court
then appointed Dr. John A. Finger (who had been
the district court’s expert in Swann) to act as Master
pursuant to Rule 53, F ed. R. Civ. P., to work out the
details of a plan with Dayton school officials. The
following guidelines were set for the Master with re
spect to elementary students (A.104) :
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
available school;
51
3. No student should be transported for a period
of time exceeding (20) minutes, or two (2) miles,
whichever is shorter.
The court also appointed a citizens board to monitor
the plan for a period of at least three years. A.105.
The court concluded its order with four conclusions of
law: (1) “ A school system composed of schools where
the attendance meets the district ratio plus or minus
15% is a desegregated system as contemplated in
Keyes . . . and Swann . . . ” (A.105-06); (2) “ Varia
tions from the foregoing may be permitted in excep
tional circumstances without destroying the desegre
gation of such system” (A.106) ; (3) So long as such
a desegregated system is established, “ [ejducational
techniques, experimental schools and expanded parent
choice are not matters relating to constitutional depri
vations. . .” (id.) - and (4) the Board “ must provide
adequate transportation for all students affected by re
assignment to comply with this Order.” Id. A judg
ment in conformity with this order was entered on the
same day. A.107-109.
On March 15, 1976 the Master submitted his report.
A.157-75. The Master recommended that elementary
schools be desegregated primarily on the basis of the
common technique of pairing schools. With respect
to high schools, the Master relied on a program of
choices and random assignments limited by racial
guidelines. Under his plan, the Master estimated that
the maximum distance of travel for any student would
be somewhat in excess of 5 miles, but that the longest
travel time “ should not exceed 20 minutes.” A.162.
The district court conducted a hearing on the Mas
ter’s report on March 22 and 23, 1976. At this hearing,
52
the Dayton Board requested several modifications of
the Master’s plan: to be allowed to reassign pupils to
paired schools in advance in the Spring by the central
administration, rather than by the school principals
on the first day of the 1976-77 school year; to be al
lowed to exchange paired schools (with no transfer of
teachers) on an annual rather than semi-annual basis;
to be allowed to assign high school students on geo-
graphic-zone rather than choice and random-assign
ment 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, tes
timony, or any 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 March 23, 1976 the district court entered its final
order approving the proposed desegregation plan of
the Master, with modifications, and directing the Day-
ton Board to implement the plan for the 1976-77
school year. A .110-13. The court gave the Board the
discretion 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. A .110-11. The district court also
expressed its willingness to consider proposed modifi
cations to the plan at any time from any party. A .112.
A judgment was entered on March 25, 1976 in accord
ance with the March 23 order. A .114-16. Thereafter,
the Dayton Board sought six additional modifications
which, with one exception (concerning the exclusion
of eighth graders from the plan), the district court ap-
proved by an order of May 14, 1976. A.117.
53
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
I II on July 26, 1976. A.118-23. The court of appeals
noted that although its decision in Brinkman I I had
ordered system-wide desegregation, the Board
proposed no plan to achieve this mandate and
made no showing of the existence of conditions
related to the topography of the Dayton area, lo
cation of natural or artificial barriers, geographic
isolation or similar considerations which might
militate against an order requiring cross-district
transportation of pupils. [A.121.]
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 (A .121-22):
Rather than establishing a fixed mathematical re
quirement as the Board claims it does, this for
mula provides 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 further illustrated by the ex
emption of two entire grades of high school stu
dents, the provision for variations from the plus
or minus 15% requirement “ in exceptional cir
cumstances” and the options granted the Board
which permitted it to choose alternate methods of
achieving desegregation rather than being re
quired to follow in every detail the plan submitted
by the Master. W e view the use of mathematical
ratios in this case as no more than “ a useful start
ing point” in shaping a remedy for past discrimi
nation. Swann, supra, 402 U.S. at 25.
As to the language in the district court’s order of
December 29, 1975 pertaining to a constitutional right
54
of all students to “ share equally all facilities of a
school system, both the superior and the inferior, ’ ’ the
court of appeals said (A .122) :
When considered out of context and read liter
ally the quoted language does appear to create a
right which the federal courts have never recog
nized. However, in the context of the order this
statement appears to be nothing more than an
affirmation that a system-wide desegregation plan
must necessarily involve all facilities of a school
system and that pupil assignments will be made
as required to eliminate the vestiges of past dis
crimination without regard to the comparative
quality of the various facilities. Be that as it may,
the quoted language does not appear in the judg
ment, which is the instrument this court reviews
on appeal.
Finally, the court of appeals dealt with an argument
raised by the Board for the first time at oral argu
ment: that the district court’s order required periodic
changes in the Dayton plan to maintain a fixed racial
balance in perpetuity in violation of this Court’s inter
vening decision in Pasadena City Board of Education
v. Spangler, 427 U.S. 424 (1976). The court found that
this contention was completely without merit: “ The
short answer to this argument is that the judgment
directs no changes after the 1976-77 school year.”
A.123. The court noted that the plan ordered by the
district court “ established the first constitutionally
sufficient desegregation plan for the Dayton system.
I f 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.
Thereafter, both the court of appeals and Mr. Jus
tice Stewart, as Circuit Justice, denied the Board’s
applications for a stay of the judgment in Brinkman
III, and the Board implemented the plan at the start
of the 1976-77 school year. On January 17, 1977, this
Court granted the Board’s petition for writ of cer
tiorari.
SUMMARY OF ARGUMENT
1. The linchpin of petitioners’ case is their claim
that the Dayton Board has never operated a racially
dual school system as defined by this Court’s decisions.
I f that claim is mistaken, their case falls. As set forth
in the Statement of the Case, supra, there can be no
doubt that a basically dual system existed at the time
of Brown v. Board of Educ., 347 U.S. 483 (1954), and
was never dismantled until the federal-court interven
tion here. Thus, a district-wide desegregation plan was
constitutionally required under Swann v. Charlotte-
MecMenburg Board of Educ., 402 U.S. (1971), to dis
mantle the dual system which existed in Dayton at the
time of Brown and which continued to flourish there
after. See pages 58-71, infra.
2. Petitioners’ case also falls on an alternative
ground: the wide-spread de jure segregation extant at
the time of Brown, coupled with racially discrimina
tory faculty and pupil assignment practices there
after and the rescission of the Board’s single under
taking of its affirmative obligations, constituted a
prima facie case of system-wide intentional segrega
tion which the Board has failed to rebut. The plan
ordered below was therefore mandated by the “ all-out
56
desegregation” commands of Keyes v. School JDist. No.
1, 413 U.S. 189 (1973), and Swann. See pages 72-85,
infra.
3. Tlie system-wide remedy already in place in the
Dayton public schools is fair and equitable and is de
signed to remedy the constitutional violation. It is a
plan of actual desegregation under Swann and Keyes.
The plan is not “ racial balance,” nor does it require
annual adjustments contrary to Swann or Pasadena
City Board of Educ. v. Spangler, 427 U.S. 424 (1976).
Petitioners’ further claim that the plan will inevitably
result in resegregation is not supported by the record
and is irrelevant under this Court’s decisions in Brown
v. Board of Educ., 349 U.S. 294 (1955) Brown II] ,
Cooper v. Aaron, 358 U.S. 1 (1958), and Monroe v.
Board of Comm’rs, 391 U.S. 450 (1968). See pages
85-94, infra.
4. Finally, petitioners’ attack upon plaintiffs’ status
to prosecute this case is unwarranted. Plaintiffs in
clude black and white pupils in the Dayton public
schools who have suffered from petitioners’ prior de
jure segregated system of schooling and are now for
the first time attending schools in transition to a ra
cially unitary system. Under Spangler, plaintiff’s
stake in this controversy is real and their standing
cannot be questioned. See pages 95-101, infra.
ARGUMENT
Before this Court, petitioners claim that the court of
appeals has acted out of a desire to impose upon the
Dayton school district system-wide racial balance as a
matter o f substantive constitutional right. To support
57
this argument the Board relies upon imprecise lan
guage in the various opinions and orders of the district
court which have been superseded by the judgments
of the court of appeals. Then, by interweaving ex
cerpts from this free-wheeling language with equally
selective citations to the extensive evidentiary record
and even less-frequent references to the three deci
sions of the court of appeals, petitioners assert that
the gaps between the system-wide remedy ordered be
low and any unconstitutional conduct on their part is
so great that the conclusion is inescapable that the
court of appeals has defined racial imbalance as a per
se violation of plaintiffs’ substantive constitutional
rights. See Pet. Br. at 15-30.
We agree with petitioners that there are noticeable
differences in pitch between the decisions of the court
of appeals and those of the district court; and that the
district judge did all he could on the first remand to
avoid compliance with the court of appeals’ mandate
in Brinkman I to remedy the violation. Cf. Pet. Br. at
15-16, 28. We also agree that there are interstices in
the decisions and orders entered below. But we find it
considerably easier to fill in these gaps than do peti
tioners. The settled portions of the record bring the
remedy flush with the constitutional violation and make
constitutionally unassailable the determination below
that plaintiffs are entitled to system-wide relief from
the extensive de jure segregation of the Dayton public
schools.
58
I. THE BOARD OPERATED A RACIALLY DUAL SCHOOL
SYSTEM AT THE TIME OF BROWN WHICH WAS NOT
DISESTABLISHED PRIOR TO IMPLEMENTATION OF THE
DESEGREGATION PLAN ORDERED BELOW.
Petitioners necessarily concede that an “ affirmative
duty arises to dismantle and to eliminate the identifi-
ability of one-race schools . . . [where there is] a find
ing of a dual system mandated by state statute or a
dual system predicated upon evidence establishing
state-imposed segregation in a substantial portion of
the school district.” Pet. Br. at 15. We concede that
there was no Ohio statute mandating a dual system in
Dayton after 1887. But there has been a dual school
system in Dayton spanning two-thirds of a century,
albeit one created and maintained by petitioners and
their predecessors in direct defiance of state law.
In Green v. County School Board, 391 U.S. 430
(1968), and companion cases,37 this Court refined the
command of Brown II that school districts operating
statutory dual systems must “ effectuate a transition
to a racially non-discriminatory school system.” 349
U.S. at 301. Green emphasized that although the Court
in Brown I I had recognized that the transition would
not be easy, “ [s]chool boards... then operating state-
compelled dual systems were nevertheless clearly
charged with the affirmative duty to take whatever
steps might be necessary to convert to a unitary system
in which racial discrimination would be eliminated root
and branch.” 391 U.S. at 437-38. Finally, in Swann v.
Charlotte-MecMenburg Board of Education, 402 U.S.
37 Raney v. Board of Educ., 391 U.S. 443 (1968); Monroe v.
Board of Comm’rs, 391 U.S. 450 (1968).
59
1 (1971), and companion cases,38 the Court held that
the command “ to dismantle dual school systems” (id.
at 22) entails making “ every effort to achieve the
greatest possible degree of actual desegregation. . . .
[and] warrants a presumption against schools that are
substantially disproportionate in their racial compo
sition.” Id. at 26.
In Keyes v. School District No. 1, 413 U.S. 189
(1973), the Court for the first time addressed the con
stitutional principles applicable to school segregation
in the so-called “ northern” context in which state law
did not mandate racial segregation at the time of
Brown. Because of the absence of state laws mandat
ing school segregation in this context, the Court deter
mined that plaintiffs challenging such school segrega
tion under the Fourteenth Amendment “ must prove
not only that segregated schooling exists but also that
it was brought about or maintained by intentional state
action.” Id. at 198. In other words, plaintiffs must
prove “ de jure segregation” which is differentiated
from “ adventitious” segregation by official “ purpose
or intent to segregate.” Id. 208 (emphasis in original).
Although the initial burden of proof in such cases is
therefore on the plaintiffs, the Court also held (id. at
201) :
[W ]here plaintiffs prove that the school author
ities have carried out a systematic program of seg
regation affecting a substantial portion of the stu
dents, schools, teachers, and facilities within the
school system, it is only common sense to conclude
that there exists a predicate for a finding of the
existence of a dual school system.
38 Davis v. Board of School Comm’rs, 402 U.S. 33 (1971) ; Mc
Daniel v. Barresi, 402 U.S. 39 (1971); North Carolina State Board
of Edue. v. Swann, 402 U.S. 43 (1971).
60
In Keyes the Court reviewed lower court findings
that the Denver School Board, with respect to the Park
Hill area of the district, had been “ found guilty of
following a deliberate segregation policy at schools at
tended, in 1969, by 37.69% of Denver’s total Negro
school population, including one-fourth of the Negro
elementary pupils, over two-thirds of the Negro junior
high pupils, and over two-fifths of the Negro high
school pupils.” Id. at 199. With respect to the remain
der of the system, however, the lower courts in Keyes
had found no such deliberate segregative policies or
practices. This Court nevertheless recognized that ra
cially discriminatory practices of segregating blacks
in one portion of a school district have a “ reciprocal
effect” on the remainder of the district: “ common
sense dictates the conclusion that racially inspired
school board actions have an impact beyond the par
ticular schools that are the subjects of those actions.”
Id. at 203; see also id. at 201-203. Consequently, a dual
system may be found to exist upon “ proof of state-
imposed segregation in a substantial portion of the
district. . . . ” Id. at 203. The Court held that the Den
ver school district’s “ deliberate racial segregation
policy with respect to the Park Hill schools [would be
sufficient to] constitute[] the entire Denver school sys
tem a dual school system” (id, at 204), unless the
school board could show “ that Park Hill may be sep
arated from the rest of the Denver school district as
a separate, identifiable, and unrelated unit.” Id. at 205.
The Court also noted that where such a “ northern”
dual system is found, “ as in eases involving statutory
dual systems, the school authorities have an affirmative
duty ‘ to effectuate a transition to a racially non-dis-
eriminatory school system.’ ” Id., quoting Brown II.
61
In determining whether school authorities have met
this “ affirmative duty,” the Court explained one of
the reasons supporting the Swann presumption against
one-race schools in a system with such a history of
segregation (413 U.S. at 211) :
a connection between past segregative acts and
present segregation may be present even when not
apparent and . . . close examination is required be
fore concluding that the connection does not exist.
Intentional school segregation in the past may
have been a factor in creating a natural environ
ment for the growth of further segregation.
A. A Dual System Existed In The Dayton Public Schools At
The Time Of Biown I.
The record in the instant case, which we have de
tailed at pages 8-19, supra, conclusively shows the
existence of such a dual school system in Dayton at the
time of Brown. At that time, a substantial majority
of the black public school children in Dayton attended
schools which had been deliberately created or con
verted into schools for blacks only. And almost all black
teachers in the system were assigned to these blacks-
only schools pursuant to an explicit and degrading
policy of racial discrimination. This state-imposed sys
tem of intentional segregation was probably as perfect
as it could have been without the aid of a state law
mandating absolute apartheid.39 No showing was or
39 As shown in the Statement, supra, the Board was operating
about 50 schools at the time of Brown. Of the 35,000 pupils in the
system, 19% were black. At least 54% of the system’s black stu
dents were attending four schools officially designated for blacks
only, and at least another 19% of the black pupils in the system
were attending five other schools that had just been effectively
converted (one had just been constructed) into black schools. Thus,
about three-foxirths of all black pupils attended black schools, and
62
could have been made that the resulting segregation
was cabined “ within a separate, identifiable or unre
lated unit” (Keyes, 413 U.S. at 205) of the Dayton
school district. Under Keyes, therefore, no conclusion
is permissible except that the Dayton Board was oper
ating a dual system at the time of Brown.
Petitioners assert the contrary, however, as they
must; their entire brief is premised on the assertion
that there was never such a dual system in Dayton.
They cite no evidence to support this claim, and they
cite no finding by the court of appeals. Uor do they
refer to the district court’s initial findings of fact and
conclusions of law to support the proposition that
makes or breaks their case. Rather, they refer to lan
guage written for the first time by the district court
on remand following the court of appeals’ reversal in
Brinkman I of the district court’s “ free choice” rem
edy. Pet.Br. at 10, 19, 30. This language of the district
court makes no reference to the controlling standards
announced in Keyes the year before. Its total content
is as follows (A.75, 77) :
1. The State of Ohio does not now, nor has it
since 1887 mandated a dual system of public edu
cation. To the contrary, 84 Ohio Law 34, dated
February 22, 1887, specifically required a unitary
public school system.
2. The defendant School Board of the City of
Dayton had engaged in activities which were
segregative in effect and which did impinge upon
the Constitutional rights of students in such sys
tem. At no time, however, did defendant maintain
a dual system of education.
83% of the system’s white pupils attended virtually all-white
schools. See pages 15-16, supra.
63
3. Overt evidence of such segregative activities
have been eliminated both by action of the Board
of Education and by previous Order of this Court
but the effect thereof may not.
* * -X-
We do not deal with a mandated dual system;
we do not deal with actions taken on a sehool-by-
school basis. W e do deal with a system that has in
the past permitted segregative practices to exist.
These words will not support petitioners’ claim.
We recognize that “ [j]udges who are reversed bĵ a
higher court sometimes need . . . [an] outlet,” and
that “ [f]o r this reason opinions on remand should
occasionally be read with tolerance and understand
ing. . . . ” 40 Petitioners, however, assert that the
above-quoted language “ establishes that the Dayton
district was not operating a mandated dual system as
proscribed in Brown I . . . [and was not guilty of]
state-imposed segregation in a substantial or signifi
cant portion of the district . . . .” Pet.Br. at 19. There
are several reasons why petitioners’ contention is not
tenable, whether the district court’s language is viewed
with sympathy or critical analysis.
First, as previously noted, the district court’s ref
erences to the “ dual system” were made at the rem
edial stage of this case following a reversal and re
mand for remedy by the court of appeals. The district
court made no such finding and offered no such con
clusion in its opinion issued immediately following the
trial on the merits. Indeed, at that time the court did
not dispute the existence of a dual system at the time of
40 Stanton v. Stanton, 45 U.S.L.W. 3506 (U.S. Jan. 25, 1977)
(Stevens, J., dissenting in part).
64
Brown. Rather, the court’s first opinion simply dis
counted the eggregious facts of pre-Brown discrimina
tion because of its view that “ [b]oth by reason of the
substantial time that has elapsed and because these
practices have ceased, . . . [they] will not necessarily
be deemed to he evidence of a continuing segregative
policy.” A.3. That off-hand disposition, of course,
turned out to be a legal mistake in light of this Court’s
subsequently-issued opinion in Keyes, 413 U.S. at
210- 11 :
We reject any suggestion that remoteness in
time has any relevance to the issue of intent. I f
the actions of school authorities were to any de
gree motivated by segregative intent and the seg
regation resulting from those actions continues
to exist, the fact of remoteness in time certainly
does not make those actions any less “ inten
tional. ’ ’
But even after the Keyes opinion became available,
the district court did not reassess this mistake; in
stead, its only discussion of Keyes focused exclusively
upon the dissenting part of Justice Powell’s separate
opinion. A.29-31; see also note 36, supra, and accom
panying text.
Second, the language of the district court reveals
no understanding of the term “ dual system.” As
nearly as one can tell from reading the district court’s
“ dual system” references—indeed, from reading the
March 10,1975 order in its entirety—the district court
believed that a dual system could not exist unless man
dated by state law. This notion, of course, was also
expressly rejected in Keyes. 413 U.S. at 201-204.
Third, whatever the district court may have meant
in that order, it was squarely rejected by the subse
65
quent decision of the court of appeals in Brinkman II.
In that opinion, the Sixth Circuit, stating that it
would have granted plaintiffs’ motion for summary
reversal but for the time factor, held (A.90) :
Although the phrase “ de jure” does not appear
in our former opinion, the meaning of that deci
sion is that the Dayton school system has been and
is guilty of de jure segregation practices. See
Keyes v. School District No. 1, 413 U.S. 189
(1973).
Petitioners’ reliance on the district court’s language
in the March 1975 order is therefore unfounded be
cause that, order has been displaced by the court of
appeals in accordance with this Court’s decision in
Keyes A
41 This case does not call for further elaboration of the Keyes
“ purpose of intent to segregate” standard. 413 TJ.S. at 208 (em
phasis in original). See also Castaneda v. Partida, 45 U.S.L.W.
4302 (U.S. March 23, 1977) ; Arlington Heights v. Metropolitan
Housing Dev. Corp., 45 U.S.L.W. 4073 (U.S. Jan. 11, 1977) ;
Washington v. Davis, 426 U.S. 229 (1976). While we do not under
stand the standard to require us to accuse petitioners and their
predecessors of subjective racial malevolence, cf. Note, Reading
the Mind of the School Board: Segregative Intent and the De
Facto/De Jure Distinction, 86 Yale L.J. 317 (1976), the record
here supports such an accusation. But we also think it clear that
inquiry into the subjective motive of the decision-maker is not re
quired. As Justice Stewart has written, while he was a Sixth Cir
cuit Judge, in Clemons v. Board of Educ. of Hillsboro, 228 F.2d
853, 859 (6th Cir. 1956):
The Board’s action was . . . not only entirely unsupported
by any color of state law, but in knowing violation of the Con
stitution of the United States. The Board’s subjective purpose
was no doubt, and understandably, to reflect the ‘ spirit of the
community’ and to avoid ‘ racial problems,’ as testified by the
Superintendent of Schools. But the law of Ohio and the Con
stitution of the United States simply left no room for the
Board’s action, whatever motives the Board may have had.
Similarly, the lower courts in the “ northern” school cases decided
66
Fourth, and finally, the claim that the Dayton Foard
never operated a dual school system is wrong as a mat
ter of uncontestable fact. Although the court of ap
peals can be criticized to some extent for occasionally
adopting the loose approach to constitutional termi
nology that pervades the district court’s opinions and
orders, it is at least unmistakably clear from the court
of appeals’ judgment that it thought plaintiffs had
proved their entitlement to a system-wide remedy. It
is that judgment which we appear here to defend.
Moreover, it is also plain from the court of appeals’
determination of facts in both Brinkman I and Brink-
man I I that it believed that plaintiffs had proved
intentional segregation of system-wide magnitude.
While there may be some dispute as to whether the
court of appeals precisely anchored its holding on the
existence of a dual system at the time of Brown-,* 42
in the post-Keyes era have generally not required plaintiffs to
prove subjective racial animus. See, e.cg., Armstrong v. Brennan,
539 F.2d 625 (7th Cir. 1976) ; United States v. School Dist.^of
Omaha, 521 F.2d 530 (8th Cir.), cert, denied, 423 U.S. 946 (1975);
Ilart v. Community School Bd. of Educ., 512 F.2d 37 (2d Cir.
1975); Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 1974), cert,
denied, 421 U.S. 963 (1975) ; Oliver v. Michigan State Bd. of
Educ., 508 F.2d 178 (6th Cir. 1974), cert, denied, 421 U.S. 963
(1975) • Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973), aff d
in relevant part, 418 U.S. 717, 738 n.18 (1974). Rather, these cases
require only a showing of objective purpose or intent to segregate.
42 We believe, however, that a fair reading of the court of ap
peals’ opinions shows its recognition of the existence of a de jure
segregated system at the time of Brown. First, in Brinkman I, the
court discusses the “ Historical Background of School Segregation
in Dayton.” A.39-48. In this discussion, the court recounts that
in the face of Ohio law outlawing racially discriminatory school
ing since at least 1888 and a 1926 Ohio Supreme Court decision
expressly informing the Dayton Board not to segregate schools on
the basis of race, the Dayton Board nonetheless, as found by the
67
the record irrefutably establishes such a system. See
note 39, supra.43 Petitioners’ assertions of non-dualism
must accordingly be rejected.
district court, proceeded to do so. A.39-40. The court of appeals
did not elaborate on the evidence supporting this “ historical deter
mination” because “ that is not challenged on appeal . . . ” A.39.
Second, again in Brinkman I, the court of appeals notes the “ basic
ally dual school system inherited at the time of Brown” and the
“ explicit segregation policy of the Board” prior to the 1951-52
school year and effective continuation thereafter, in discussing but
not deciding other violation issues on which it reserved decision.
A.56. Third, again in Brinkman I, the court of appeals, in describ
ing the Board’s remedial obligations, held (A.68):
Once the plaintiffs-appellants have shown that state-imposed
segregation existed at the time of Brown (or any point there
after), school authorities “ automatically assume an affirmative
duty . . . to eliminate from the public schools within their
school system ‘ all vestiges of state-imposed school segrega
tion.’ ” Keyes, supra, 413 U.S. at 200.
Thus, the court of appeals, as required by Keyes, directly rejected,
on the facts of this case, the Dayton Board’s contention “ that the
Brown I rationale relied upon by the plaintiffs is only applicable
to those school districts where a dual system was compelled or
authorized by statute and has no applicability where a statutory
dual system has never existed.” Brief for Dayton Board of Edu
cation, 6th Cir. Nos. 73-1974, -1975, at page 22. Finally in Brink-
man II, the court of appeals reiterated this statement of the affirm
ative obligation of a dual school system (A .90), and recounted the
long history of de jure segregation in the Dayton public schools
(A.89-90).
43 The existence of a dual system at the time of Brown thus need
not depend on the burden-shifting principles and evidentiary pre
sumptions set forth in Keyes. See Argument II, infra. The exist
ence of such a system is established as a matter of overwhelming
fact. We cannot conceive how the Dayton-style dual system could
have lesser legal consequence than the Charlotte-Meeklenburg
type, for comparative example. There is a small factual difference,
of course, since in Dayton 75% of the students were directly seg
regated by race in 1954, compared to 100% in Charlotte. To draw
from this factual difference a conclusion that the two systems had
different long-run consequences, however, is to make finer socio
68
When Brown I was decided on May 17, 1954, there
fore, the Dayton Board became constitutionally ob
liged to uproot the dual system it had spent at least
forty years creating in doubtful compliance with
Plessy v. Ferguson, 163 U.S. 537 (1896), and in open
defiance of equally-longstanding Ohio law. In the fif
teen years following Brown the Dayton Board may
have complied in some respects with Plessy ( see note
36, supra), but it ignored Brown.
B. The Board Never Complied With Brown II.
At this point petitioners’ case collapses in this Court
just as it did in the court of appeals. For once the ex
istence of a dual system at the time of Brown is estab
lished, the remedial principles of Brown I I and its
progeny become applicable. See Keyes, supra, 413
U.S. at 200-203, 213-14; Brinkman I, 503 F.2d at 704
(A .68) ; Brinkman II, 518 F.2d at 854 (A.90). Under
these principles, the Board was obligated from the
time of Brown I I to disestablish the basically dual
school system inherited. To fulfill that obligation, the
Board had to ‘ ‘make every effort to achieve the great
est possible degree of actual desegregation . . . [C o m
pliance with its constitutional duty warrants a pre
sumption against schools that are substantially dispro
portionate in their racial composition.” Swann, supra,
402 U.S. at 26. Or, in the language of one of the Swann
logical distinctions than either social scientists or federal judges
are capable, or than the Fourteenth Amendment requires. Keyes,
413 U.S. at 200-03. And clearly the fact that this dual system was
created in defiance of, rather than being mandated by, state law
does not alter the constitutional consequences of the Dayton
Board’s intentional segregation at the time of Brown. Cf. Monroe
v. Pape, 365 U.S. 167, 194-201 (1961) (Harlan, J., concurring).
69
companion cases, the Board was required to ‘ 'make
every effort to achieve the greatest possible degree of
actual desegregation., taking into account the practi
calities of the situation.” Davis v. Board of School
Commissioners, supra, 402 U.S. at 37.
The Dayton Board has never contended that it has
met its affirmative obligation under these post-Brown
mandates. Nor could it. See A.5, 9-10.
Indeed, the courts below have found that instead of
“ eliminat[ing] from the public schools all vestiges of
state-imposed segregation” (Swann, supra, 402 11.S.
at 15), petitioners and their predecessors aggravated
the constitutional violation by continuing to engage in
a number of racially discriminatory practices. For
example, at least until federal intervention by H EW
in 1969, the Board persisted in the “ racial assignment
of faculty” (A.56) by assigning black teachers to
identifiably black schools and white teachers to identi-
fiably white schools. See pages 20-24, supra; Swann,
supra, 402 U.S. at 18: Keyes, supra, 413 U.S. at 209.”
In addition, the Board, as found by the courts below,
intentionally employed optional attendance zones with
tbe segregative effect of identifying schools as black 44
44Petitioners appear to argue (Pet. Br. at 18) that the Board’s
employment of substantial numbers of black teachers is evidence
of affirmative action. However, in school systems in almost every
state which had explicit segregation laws the proportionate num
ber 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.” A.56. Thus, the presence of a substantial num
ber of black teachers may in some cases be evidence of non-dis-
criminatory hiring; in others, it is the legacy of an explicitly dual
system of hiring and assigning teachers on a racial basis, as in
Dayton.
70
or white and allowing white children assigned to the
attendance areas for black schools to escape. See pages
24-30, supra. This device, reminiscent of the mainstay
of the “ southern” style of dualism ( see Green, supra,
391 U.S. at 432), was totally inconsistent with the
Board’s avowed purpose of operating under the
“ neighborhood school concept.” See, e.g., A.13.
Other Board action, at a minimum, was ineffective
in dismantling the dual system. Bor example, the
Board’s Freedom of Enrollment policy only perpetu
ated the racial identity of schools. A.9-10; See note
28, supra. In practice, this policy operated as in
effectively as the “ freedom of choice” and “ free trans
fer” provisions condemned in Green and companion
cases as wholly inadequate desegregation techniques.
The Dayton policy was simply “ a method [of]
achieving minimal disruption of the old pattern. . . .
Monroe v. Board of Commissioners, supra, 391 U.S.
at 458.45
45 While the district court declined to find segregative intent with
respect to several pupil-assignment practices, it did affirmatively
find that “ no effort has been made by the school board of Dayton
to balance by race the student population at any particular school”
(A .5), and that the “ affirmative promotion of integration . . •
has not held an important place in the Board’s priorities.” A.30.
As previously noted (see note 33, supra), “ balance by race and
“ racial imbalance,” in the confusing usage employed by the dis
trict court, mean, respectively unsegregated and segregated. The
district court’s findings that the Board’s zoning practices have had
“ neither segregative nor integrative effect” (A.6), that the Board
used its site-selection and school-construction practices to locate
schools in one-race areas (A .7), and that the Freedom of Enroll
ment policy was of negligible desegregative value (A.9), foreclose
any possibility that the Board has complied with Brown II. Al
though these district court findings have been superseded by the
court of appeals’ decision in Brinkman I (A.61-67) reserving de
cision on plaintiffs’ contention that the Board’s practices in these
71
Not until 1971 did the Board stand up to its sworn
duty and act decisively by adopting a system-wide
program of desegregation to comply with its duty to
convert to a unitary system. But this affirmative action
by the 1971 Board was quickly rescinded by the newly-
composed 1972 Board and the dual system reinstated.
See pages 30-35, supra. “ This deliberate perpetuation
of the unconstitutional dual system can only have com
pounded the harm of such a system.” Green, supra,
391 U.S. at 438.
Clearly and convincingly, plaintiffs have established
their entitlement to a system-wide remedy under this
Court’s controlling decisions in Brown II, Green,
Swann and Keyes.
areas constitute “ independent constitutional violation[s] ” ( Wash
ington v. Davis, 426 U.S. 229, 243 (1976), quoting Wright v.
Council of City of Emporia, 407 U.S. 451, 459 (1972)), the law
of the case at least establishes that the Board never fulfilled its
affirmative obligations to dismantle the dual system. “ ‘ Racially
neutral’ assignment plans,” are inadequate as a matter of law
when they “ fail to counteract the continuing effects of past school
segregation resulting from discriminatory location of school sites
or distortion of school size in order to achieve or maintain an ar
tificial racial separation.” Swann, supra, 402 U.S. at 28. The
Board’s pre-Brown practices presented just such a “ ‘ loaded game
board, ’ ’ ’ which required the Board in the post-Brown era to take
“ affirmative action in the form of remedial altering of attendance
zones . . . to achieve truly nondiscriminatory assignments.” Td.
Even if it be assumed arguendo that the Board was totally “ color
blind” after Brown, that was plainly not enough. This Court has
denounced as wholly inadequate a policy that “ exploits an appar
ently neutral form to control school assignment plans by directing
that they be ‘ color blind’ ; that requirement, against the back
ground of segregation, would render illustory the promise of
Brown. . . . ” North Carolina State Board of Educ. v. Swann, supra,
402 U.S. at 45-46. See also McDaniel v. Barresi, supra, 402 U.S at
41.
72
II. ALTERNATIVELY, PLAINTIFFS MADE OUT AN UNREBUTTED
PRIMA FACIE CASE OF SYSTEM-WIDE INTENTIONAL
SEGREGATION REQUIRING A SIMILAR REMEDY.
We think the foregoing argument is sufficient to
refute petitioners’ contention that plaintiffs are not
entitled to comprehensive relief. I f for reasons not
apparent to us we are wrong, then we submit that
proper application of the burden-shifting principles
announced in Keyes is dispositive. This argument need
not be reached unless the Court determines that Brown
I I relief ( i . e as enunciated in Green and Swann) is
triggered only to eliminate the vestiges of that total
segregation mandated by express state laws existing
at the time of Brown I. In our view, that result would
balkanize the Fourteenth Amendment, giving it a dif
ferent practical meaning for the North than it has for
the South. Even if we are wrong in reading Keyes;
413 U.S. at 200-03, 213-14, as specifically rejecting
that regional approach to remedy, the law of violation
settled by Keyes mandates system-wide relief for
plaintiffs.
A. Plaintiffs' Made Out A Prima Facie Case Of System-Wide
De Jure Segregation.
There are four elements to our prima facie case
under the burden-shifting principles set out in K eyes :
(1) the “ northern’ ’-style dual system extant at the
time of Brown; (2) the continued racial assignment
of faculty at least until 1969; (3) racially discrimina
tory optional attendance zones created and maintained
throughout the post-Brown era; and (4) the 1972
Board’s rescission of the 1971 Board’s desegregation
program.46
46 The court of appeals reserved decision on, and thereby sus-
73
1. Dayton’s 1954 dual system “ did not relate to an
insubstantial or trivial fragment of the school system."”
Keyes, supra, 413 U.S. at 199. Rather, it contained a
substantial majority of Dayton’s public school pupils
in schools intentionally segregated on the basis of race.
Moreover, virtually all faculty and staff were then de
liberately assigned to schools on a racial basis, with
“ the clear effect of earmarking schools according to
their racial composition. . . . ” Id. at 202. It is there
fore doubtful that there was not a racially identifiable
school in Dayton in 1954. See pages 15-19, supra. And
this extensive separation of the races was the direct
product of outspoken, official racial discrimination be
ginning at least as early as 1912 and continuing, per
haps with modification but surely without interrup
tion, until 1954. It may not have been a perfect sys
tem of complete segregation, but the breaches were few
and far between. See pages 18-19, supra.
2. The assignment of faculty and staff on the basis
of race continued with slight change until 1969, when
pended, the district court’s findings with respect to site selection
and school construction, grade structure and reorganization, and
pupil transfers and transportation. We have summarized the evi
dence relating to these areas in Appendix A, attached hereto (see
note 14, supra). In our view, these facts prove beyond a reasonable
doubt and to a moral certainty that the entire Dayton system in
all relevant school administrative practices is infected with inten
tional racial discrimination. It is also our firm belief, however, that
Argument I above is conclusive and the points made in this Argu
ment II are more than adequate under the burden-shifting princi
ples of Keyes, without regard to these reserved issues. If the Court
rejects both Arguments I and II, however, then it will be necessary
for this Court either to evaluate the evidence set out in Appendix
A or, “ rather than deal with the merits of the question in this
Court” (Dandridge v. Williams, 397 U.S. 471, 476-77 n.6 (1970)),
to remand to the court of appeals for its disposition of these re
served issues.
74
HEW , under its mandate of Title V I of the Civil
Rights Act of 1964, objected to the Board’s “ policy
of racially motivated assignment of teachers and other
professional staff:.” A.415.47 Only then did the Board
begin to effectively disestablish the dual system of
faculty and staff assignments. But simple faculty de
segregation that late in the day was plainly not enough
to counter the entrenched effects of this longstanding
practice of intentional segregation, which for over 60
years had “ earmarked] schools according to their
racial composition.” Keyes, supra, 413 U.S. at 202.
See note 20, supra, and accompanying text.48 * *
3. We have previously outlined the evidence show
ing the racially discriminatory operation of optional
47 The court of appeals reserved ruling only on whether the ra
cial identifiability of faculty assignments at the time of trial con
stituted a continuing faculty-assignment constitutional violation.
See note 14 and page 44, supra.
48 In Dayton the pre-Brown faculty-assignment policy did much
more than just “ earmark” schools as “ black” or “ white.” As the
court of appeals determined in Brinkman I, the Dayton Board
long “ assigned all black teachers only to schools with all black
pupils . . . pursuant to an explicit segregation policy of the Board. ’ ’
A .56, Through 1951 this “ explicit segregation policy” never al
lowed a black teacher to instruct a white child; as a result, every
time the Board assigned black teachers to a class or school, its ex
plicit policy and unswerving practice was also to exclude or other
wise transfer all white students (and their white teachers) to other
classrooms and schools and to assign only black students to these all
black schools. See pages 8-15, 18-19, supra. There is little wonder
therefore that, when the Board in 1951-52 substituted an ostensibly
new policy concerned only with the racial preferences of white
teachers and white schools, the former policy ‘ ‘ effectively continued
in practice through the 1970-71 school year.” A.56. And the effect
of this continuing racial practice on the identification of schools as
“ black” or “ white” was nearly as great, albeit not as direct, as
the former policy.
75
attendance zones. See pages 24-30, supra. This is a
classical segregation device, which the lower courts
have found to exist with considerable regularity in the
“ northern” cases;49 and they have consistently con
cluded that such optional zones are, in Judge W is
dom’s words, “ unadulterated segregation.” United
States v. Texas Education Agency, 467 F.2d 848, 867
(5th Cir. 1972). Petitioners’ effort (Pet.Br. at 22-25)
to minimize the impact of this conceded unconstitu
tional practice makes too little of the district court’s
findings and not enough of the record. The district
court’s general finding with respect to optional zones
specifically identifies four examples effecting segre
gation at seven schools (including one of the six op
tional zones created in the West-Side Reorganization
in 1952 (see note 21, supra)). A.8. When the finding
of a city-wide blacks-only optional zone for high
school students is included (A.4-5),50 all high schools
were also directly affected by such “ unadulterated
segregation.” In addition to city-wide zones, the un
rebutted evidence shows that optional zones directly
effected segregation between some 15 pairs of schools
substantially disproportionate in their racial composi
tion. See pages 25-26, supra. By any definition, 30
schools in a system with less than 70 schools relates to
much more than “ an insubstantial or trivial fragment
of the school system.” Keyes, supra, 413 U.S. at 199;
see also id. at 201-05.51
49 See, e.g., United States v. School Dist. of Omaha, supra, 521
F.2d at 540-43, and cases cited; Bradley v. Milliken, supra, 484
F.2d at 232-35, and eases cited.
50 See note 10, supra. In addition, Patterson Co-Op for many
years functioned as a city-wide high school for whites. See note
22, supra.
51 The elimination of such optional zones does nothing to limit
76
4. The final element of the prima facie ease is the
Board’s rescission, of its 1971 resolntions to desegre
gate the Dayton public schools. The rescission might
have lesser constitutional significance if the 1971 reso
lutions had been predicated solely, or even primarily,
upon a determination that, as a matter of educational
policy, the public schools should be integrated “ in or
der to prepare students to live in a pluralistic socety.
. . . ” Swann, supra, 402 U.S. at 16. But that was not
the case. Rather, the desegregation resolutions were
premised upon the Board’s admission that it and its
predecessors, through various racially discriminatory
pupil and faculty assignment policies and practices,
had caused racial segregation in the public schools.
Importantly, that admission was not proposed, in sur
prise fashion, for the first time on December 8, 1971.
The Board had first admitted its responsibility in the
resolution of April 29, 1971 setting up the Committee
of 75. The Committee of 75, in its report, likewise
found that the Board and its predecessors bore respon
sibility for the pervasive racial segregation in the Day-
ton system. In addition, the Board’s liability had been
determined earlier the same year in emphatic terms
by the Ohio State Board of Education; and suggested
even earlier, in 1969, by HEW . See pages 30-34,
supra. Consequently, the Board’s December 8, 1971
decision to desegregate the system was the considered
product of determinations that affirmative remedial
their historic contribution to the current condition of segregation.
See pages 27-29, supra. Moreover, as the district court found, the
use of optional zones also serves “ to destroy or dilute the neigh
borhood school” (A .13) defense asserted by the Dayton Board as
the supposedly otherwise “ racially neutral” cause of school seg
regation.
77
action was required to comply with the Board’s con
stitutional obligations. When the new Board voted on
January 3, 1972, to rescind this desegregation program
and reinstate segregation across the board, it did more
than simply make a different judgment about appro
priate educational policy. It deliberately turned back
the clock in a demonstrably segregative fashion. And
it did so without offering any evidence to show that
the uniform conclusions of HEW , the Ohio State De
partment of Education, the Committee of 75, and the
1971 Board and Superintendent of Schools, were
either precipitous or incorrect. The rescission thus
intentionally reimposed segregation on a system-wide
basis. It was, prima facie, a purposeful act of racial
discrimination infecting the entire system and again
communicating a policy of segregation to all of the
city’s citizens. Whether or not the rescission viewed in
isolation is unconstitutional under the Equal Protec
tion Clause, in its total context it is, at a minimum, a
significant element of plaintiffs’ prima facie case.52
52 Plainly, if the Board was under an affirmative constitutional
duty to desegregate, as the court of appeals held in Brinkman I
(A.55-56), the rescission of a desegregation plan was unconstitu
tional. Cf. North Carolina State Bd. of Educ. v. Swann, supra.
While we agree with the court of appeals that, in this context, the
constitutionality of the rescission standing alone need not he
reached, we would argue, if necessary, that the rescission is un
constitutional without regard to the Board’s affirmative duty to de
segregate. Cf. Nyquist v. Lee, 402 U.S. 935 (1971), aff’g 318 F.
Supp. 710 (W.D. N.Y. 1970) (three-judge court). The patent pur
pose of the rescission was to maintain racially segregated school
ing. Moreover, the Board’s rescission action singled out pupil re
assignments for the purpose of desegregation and, with respect to
such assignments, stripped the Superintendent of Schools of his
otherwise unqualified state-law authority over intra-district stu
dent assignments. See note 30, supra. This was “ an explicitly ra
cial classification treating racial [pupil assignment] matters dif
78
Were it necessary, we would have no reluctance in
arguing that any one of the foregoing factors consti
tutes a prima facie case of system-wide intentional
segregation shifting to the Board the burden of demon
strating at the time of trial that the condition of almost
total pupil segregation was “ adventitious.” Keyes,
413 U.S. at 208. For purposes of this case, however,
it is dispositive that the four factors taken together
constitute such a prima facie case under Keyes.53
ferently than other . . . [pupil assignment] matters.” Hunter v.
Erickson, 393 U.S. 385, 389 (1969). These facts are more than suffi
cient to “ trigger the rule . . . that racial classifications are to be
subjected to the strictest scrutiny and are justifiable only by the
weightiest of considertaions. ” Washington v. Davis, supra, 426
U.S. at 242. Nevertheless, we are content for purposes of this ar
gument, to have the rescission treated as one of the elements of
plaintiffs’ prima facie case. As such, the other wide-spread prac
tices of deliberate segregation conclusively show that the rescission
was an act of system-wide intentional racial discrimination, and
the rescission, in turn, compounds the harm of the other racial acts.
Taken together, the four elements make a strong case for the con
clusion that the Dayton Board had steadfastly pursued a long
standing plan of purposeful racial separation in all aspects of pub
lic schooling.
53 In Keyes the Court applied considerations of ‘ ‘ policy and fair
ness” in concluding that a burden-shifting principle is appropriate
in racial segregation cases such as this, where plaintiffs prove a
substantial amount of intentional segregation. 413 U.S. at 209, quot
ing 9 J. W igmoee, Evidence § 2486, at 275 (2d ed. 1940). We think
this burden-shifting approach also finds ample support in the “ or
dinary rule” that a party has the burden of proving facts pecu
liarly within its own knowledge. United States v. New York, N.H.
& H.B.B., 355 U.S. 253, 256 n.5 (1957). The “ northern” school
cases, in general, fit this rule like a glove. While it is true that
many of the relevant facts (e.g., construction of new schools, bound
ary changes) are “ public” knowledge, it is also true that the seg
regative intent underlying these “ public” facts is rarely above
board. See generally Village of Arlington Heights v. Metropolitan
Housing Dev. Corp., 45 U.S.L.W. 4073 (U.S. Jan. 11, 1977). The
79
Plaintiffs’ prima facie case here is considerably more
powerful than that presented in Keyes, which con
sisted only of deliberate segregation in one portion of
the city containing about 38% of the black students.
Here we have shown that, in addition to the intentional
segregation of a substantial majority of the students
and virtually all of the faculty at the time of Brown,
and in addition to the periodic discriminatory use of
optional attendance zones effecting segregation in a
substantial portion of the schools in the system, the
Board engaged in two intentional acts of segregation
having across-the-board impact: the assignment of
faculty and staff on a segregated basis until at least the
1970-71 school year, and the 1972 rescission delib
erately reinstating system-wide pupil segregation.
B. T he B oard H as F ailed T o R ebu t P laintiffs ' Prima Facie C ase
Plaintiffs’ prima facie ease thus raised two pre
sumptions of intentional system-wide segregation. The
first is that because the four de jure practices that com
prise plaintiffs’ prima facie case affected a substantial
inherent difficulty of meeting this legal standard, combined with
the mismatch of resources (full-time, fuly-paid school board law
yers and professional staffs opposed to the limited resources of
private plaintiffs, even those with the backing of civil rights or
ganizations), imposes a greater burden on plaintiffs, even under a
burden-shifting standard, than the ordinary civil litigant ever
faces. Hence, when plaintiffs such as those here prove intentional
discrimination with respect some meaningful portion of the school
system, justice demands that the burdens of proof shifts to the
school board. These points are not particularly urgent in the pres
ent case, because plaintiffs here have made out an overwhelming
case of intentional system-wide segregation. We therefore make
the points in this note to caution the Court against using this un
usually strong case to set a standard that would be unrealistic for
the many other cases in which system-wide racial discrimination
can otherwise be proved to an acceptable degree of confidence.
80
portion of the system, these “ racially inspired school
board actions have an impact beyond the particular
schools that are the subjects of those actions” ordi
narily sufficient to render the system dual. Keyes, 413
U.S. at 203, 213. To overcome this presumption, the
Board must demonstrate that its four intentionally
segregative practices were compartmentalized within
“ separate, identifiable and unrelated units” of the sys
tem so that in combination they affected less than the
whole system. Keyes, 413 U.S. at 201-05, 213. I f the
Board fails in that burden, plaintiffs are entitled to
comprehensive relief. Keyes, 413 at 213.
Should the burden just described be met, it is then
incumbent upon the Board to dispel the second pre
sumption: “ there is high proability that where school
authorities have effectuated an intentionally segrega
tive policy in a meaningful portion of the school sys
tem, similar impermissible considerations have moti
vated their actions in other areas of the system.” 413
U.S. at 208. To meet this second burden, the Board
must show clearly and convincingly that “ segregative
intent was not among the factors which motivated their
actions.” 413 U.S. at 210. I f the Board fails to meet
this burden, “ all-out desegregation” is required ab
sent a showing by the Board that such intentional ac
tions “ were not factors in causing the exsting condi
tion of segregation.” 413 U.S. at 214.54
54 In Keyes the Court approvingly cited a number of lower court
decisions holding that “ in a school system with a history of seg
regation, the discharge of a disproportionately large number of
Negro teachers incident to desegregation ‘ thrust [s] upon the School
Board the burden of justifying its conduct by clear and convincing
evidence.’ ” 413 U.S. at 209. We think “ clear and convincing evi
dence ’ ’ is the degree of proof required of a school board responding
to a prima facie case consisting of a showing of intentional racial
segregation with respect to a significant portion of the system.
81
Turning to the first of these burdens, Keyes counsels
that the “ cases must be rare” (413 U.S. at 203) where
school authorities can show that the effects of a sub-
Such a school board should be put to a “ higher degree of proof
than applies in a negligence case.” Woodby v. Immigration & Nat
uralization Service, 385 U.S. 276, 285 (1966). See generally C. Mc
Cormick, Law op Evidence § 320, at pp. 679-81 (1954); 9 W ig-
more, Evidence § 2498 (3d ed. 1940); McBain, Burden of Proof:
Degrees of Belief, 32 Calif. L. Rev. 242 (1944). A “ clear and con
vincing” or “ clear, unequivocal and convincing” standard of proof
is especially appropriate where a constitutional right or human lib
erty is at stake. See, e.g., Berenyi v. District Director, 385 U.S. 630,
636-37 (1967); Woodby v. Immigration & Naturalization Service,
supra; New York Times Co. v. Sullivan, 376 U.S. 254, 285-86
(1964) ; Costello v. United States, 365 U.S. 265 (1961); Nowak v.
United States, 356 U.S. 660 (1958); Gonzales v. London, 350 U.S.
920 (1955) ; Schneiderman v. United States, 320 U.S. 118 (1943).
In employment discrimination cases, for further examples, the
lower courts have uniformly required employers to respond to pri-
ma facie cases of systematic discrimination with “ clear and con
vincing” evidence. See, e.g., Day v. Mathews, 530 F.2d 1083 (D.C.
Cir. 1976); Baxter v. Savannah Sugar Refining Corp., 495 F.2d
437, 444-45 (5th Cir.), cert, denied, 419 U.S. 1033 (1974); Pettway
v. American Cast Iron Pipe Co., 494 F.2d 211, 259-60 (5th Cir.
1974); Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364,
1374-80 (5th Cir. 1974) ; United States v. Chesterfield County
School Dist., 484 F.2d 70, 72-73 (4th Cir. 1973); Cooper v. Allen,
467 F.2d 836, 840 (5th Cir. 1972).
Such a degree of proof is called for in cases such as the present
one by “ the rule . . . that racial classifications are to be subjected
to the strictest scrutiny and are justifiable only by the weightiest
of considerations.” Washington v. Davis, supra, 426 U.S. at 242
See also Hunter v. Erickson, supra; McLaughlin v. Florida, 379
U.S. 254 (1964) ; Loving v. Virginia, 388 U.S. 1 (1967). While the
“ strict scrutiny” standard relates to the burden of justification, as
distinguished from the burden of proof, we submit that exacting
evidentiary requirements are essential to securing the constitution
al interests protected by the “ strict scrutiny” rule. Certainly, “ the
duty of prevailing by a mere preponderance of the evidence”
( Woodby, supra, 385 U.S. at 285), is incompatible with that goal.
Here plaintiffs have established, prima facie, an intentional sys-
8 2
stantial amount of intentional segregation “ can be
treated as isolated from the rest of the district.” 413
U.S. at 213. Here, the Board did not and could not
show that the virtually complete pupil and faculty
segregation at the time of Brown, the racially segre
gative optional zones affecting more than a third of
the schools at one time or another, the deliberate racial
discrimination in the assignment of teachers and other
professional staff for more than fifteen years after
Brown, and the 1972 rescission and reimposition of
system-wide pupil segregation were directed at “ dif
ferent areas of the school district [which] should be
viewed independently of each other.” Keyes, 413 U.S.
at 208. The Board could not and did not show that
these pervasive acts of intentional segregation were
aimed at either geographic parts of the district or
aspects of school administration which were “ separate,
identifiable and unrelated units.” Id. at 203. This is
tem-wide “ racial classification.” “ Strict scrutiny” mandates that
the Board must disprove that case by “ clear and convincing” evi
dence. It is under just such a standard, we believe, that this Court
has “ never suggested that plaintiffs in school desegregation cases
must bear the burden of proving the elements of de jure segrega
tion as to each and every school or each and every student within
the school system.” Keyes, 413 U.S. at 200.
If we are right about the Board’s burden of proof, then we are
clearly correct in saying that it is not legally possible for the
Board to meet its burden. The “ clear and convincing” standard
requires the Board to demonstrate that it is “ highly probably
true” that the presumptions raised by plaintiffs’ prima facie case
are unfounded. See, McBain, supra, 32 Calif, L.Rev. at 254, 262-
63. Since the court of appeals has determined that there are “ se
rious questions” as to whether the Board’s case with respect to
the reserved isues (see note 46, supra) is “ supported by substan
tial evidence” (Brinkman I, A .66-67), it follows, as a matter of
law, that the Board cannot overcome plaintiffs’ prima facie casq
with “ clear and convincing” evidence.
83
not surprising in this compact district where the
Board could make “ no showing of the existence of con
ditions related to the topography of the Dayton area,
location of natural or artificial barriers, geographic
isolation or similar considerations” (A.121) which
might hinder system-wide desegregation. The Board
has failed to meet its burden. The existence of a dual
system in Dayton is thereby established.
Even if the Board could overcome the first burden
by showing that its intentional actions had effects
limited to a separate and distinct portion of the sys
tem, the Board still did not meet its second burden of
showing that segregative intent was not one of the
factors underlying its other, ostensibly racially neutral
practices. These practices include school construction
and site selection, grade structure and reorganization,
and pupil transfers and transportation. Although the
district judge here, as in Keyes, generally found or
implied that these other practices were racially neu
tral, it did so on the erroneous assumption that plain
tiffs bore the burden of proof throughout. The court
of appeals reserved decision on whether these other
practices amounted to unconstitutional, intentional
segregation in their own right. But it did review the
evidence and determine that there are “ serious ques
tions” (A.66) as to whether the Board’s claims of ra
cial neutrality are supported by “ substantial evi
dence.” A.67. This determination makes it legally im
possible for the Board to show that it is “ highly prob
ably true” that race played no part in these other prac
tices. See note 54, supra.
Assuming arguendo that the Board bears a lesser
degree of persuasion with respect to its second burden,
84
it could not meet it. The district court’s conclusions
concerning the use of optional zones demonstrate that
•“ the ‘neighborhood school’ concept has not been main
tained free of manipulation” by the Dayton Board.
Keyes, 413 U.S. at 212. In the face of plaintiffs’
prima facie ease of intentional segregation, the Board
had to show that its “ neighborhood school” practices
were part of “ a consistent and resolute application of
racially neutral policies” ( Oliver v. Michigan State
Board of Education, 508 F.2d 178,182 (6th Cir. 1974)),
rather than part “ of a policy to create or maintain
segregation in” the Dayton public schools. Keyes, 413
U.S. at 214. The Board’s assertion of a racially neutral
“ neighborhood school” policy to justify its school-con
struction, grade-structure-reorganization, and pupil-
transfer practices necessarily fails, because the segre
gative use of optional zones is so inconsistent with the
defense. In the words of the district court, the op
tional-zone practices “ destroy or dilute the neighbor
hood school concept” (A.13), and, with it, the Board’s
asserted non-racial explanation.55
Because of the Board’s inability to meet its second
burden, plaintiffs are also entitled to “ all-out desegre
gation,” unless the Board can show that its practices
“ were not factors in causing the . . . condition of seg-
55 The Board’s use of optional zones thus shows the inconsistent
application of allegedly “ neutral criteria” which must he viewed
skeptically in evaluating asserted justifications for prima facie dis
criminatory conduct. Cf. Shapiro v. Thompson, 394 U.S. 618, 634-
38 (1969). Here, as in Keyes, “ the mere assertion of such a
[‘ neighborhood school’] policy is not dispositive where, as in this
case, the school authorities have been found to have practiced de
jure segregation in a meaningful portion of the school system by
techniques that indicate that the ‘ neighborhood school’ concept has
not been maintained free of manipulation. ” 413 U.S. at 212.
85
legation” which existed throughout the Dayton school
district at the time of trial. Keyes, 413 U.S. at 214. No
such showing was attempted or made below. In view
of the Board’s decision in 1972 to reinstate segregation
system-wide and its refusal ever to take action to over
come the de jure segregation inherited at the time of
Brown, the Board cannot show, under any evidentiary
standard, “ that a lesser degree of segregated schooling
in the [Dayton public schools] would not have resulted
even if the Board had not acted as it did.” Keyes, 413
U.S. at 211. To the contrary, in view of the substantial
contribution of the Board’s various practices to the
pattern of school segregation, it is undeniable that
these past segregative acts were “ factors” causing,
creating or contributing to the segregated condition of
the Dayton schools. Keyes, 413 U.S. at 211, 214.
In sum, the Board was not and is not able to show
that the “ pattern of intentional segregation” {Keyes,
413 U.S. at 210) was limited, isolated, or otherwise
not a contributing factor to the extensive, across-the-
board racial segregation of pupils present until this
school year. The Board having failed to rebut plain
tiffs’ prima facie case, the lower courts had the duty,
which they fulfilled, to “ decree all-out desegregation”
(id. at 214) of the Dayton public schools. III.
III. THE SYSTEM-WIDE DESEGREGATION PLAN ORDERED
BELOW DOES NOT IMPOSE A FIXED RACIAL BAL
ANCE AS A MATTER OF SUBSTANTIVE CONSTITU
TIONAL RIGHT, AND THE PLAN CONTAINS NO OTHER
IMPERMISSIBLE FEATURES.
The foregoing two arguments establish plaintiffs’
right to a remedial plan of system-wide pupil desegre
gation to uproot the system-wide violation. That re-
86
solves the major dispute between the parties in this
Court. However, the Board also raises two additional,
general objections relating to particular aspects of the
district court’s remedial orders and to the impact of
the plan itself. The first branch of the Board’s claim
is that the district court has ordered a “ fixed racial
balance” and that, although nowhere so stated by the
courts below, the Board will be required to readjust
attendance patterns every year in perpetuity in order
to maintain such a balance. Pet. Br. at 27-30, 32-35.56
Second, the Board argues that the plan approved be
low is impermissible on pragmatic grounds, appar
ently because the trend of white parents and children
leaving the city of Dayton during recent years for
reasons wholly unrelated to school desegregation will
not cease under the desegregation plan implemented
this school year. Pet. Br. at 35-37.
56 The Board also argues (Pet. Br. at 30-32) that the plan ordered
below contravenes the Equal Educational Opportunities Act of
1974, 20 U.S.C. §§ 1701 et seq. This contention, as is at least part
of the Board’s “ racial balance” argument (see note 57, infra), is
based exclusively on the premise that there is no system-wide con
stitutional violation requiring a system-wide remedy. If the prem
ise is wrong, as we have shown in Arguments I and II, supra, then
the Board’s claims under the 1974 Act fall with the premise. IVe
do not understand the Board to contend otherwise in this Court,
as they also did not in the courts below. In any event, 20 U.S.C.
§ 1702(b) expressly states that the 1974 Act is “ not intended t,o
modify or diminish the authority of the courts of the United States
to enforce fully the fifth and fourteenth amendments to the Con
stitution of the United States.” Cf. Brummoncl v. Acres, 409 U.S.
1228 (1972) (Powell, Jr., in Chambers) ; Swann, 402 U.S. at 16-
18. The court of appeals in Brinkman II correctly construed the
Act in accordance with its terms. A.95. The Board’s constitutional
and statutory arguments stand or fall together.
87
A. The Courts Below Did Not Order A Fixed Racial Balance
Either For Now Or For Ever.
1. We have previously set out in full the relevant
parts of the court of appeals’ decision in Brinkman
I II (A.121-23) rejecting petitioners’ “ fixed racial bal
ance” argument. See pages 53-54, supra. We think that
disposition was correct in all respects.
After three rounds of evidentiary hearings the dis
trict judge had acquired considerable familiarity with
the Dayton school system, and he had heard uniform
testimony to the effect that Dayton was a relatively
easy system to desegregate and that there were no
major obstacles to system-wide actual desegregation.
See pages 43-52, supra. His general directive that each
school in the system should approximate the system-
wide racial ratio, within plus or minus 15%, was there
fore not an arbitrary, inflexible requirement arrived
at in an uninformed vacuum. And it most certainly
did not represent a determination that plaintiffs wTere
entitled to have each school balanced to a fixed per
centage as a matter of substantive constitutional
right.67 The district court provided that its “ plus or 57 *
57 The Board correctly relies on Milliken v. Bradley, 418 TJ.S.
717 (1974), for the proposition that a judicially-perceived unde
sirable racial balance is not a substitute for an actual constitu
tional violation. Pet. Br. at 27-28. As we have shown in the pre
vious two arguments, however, there is present here a system-wide
constitutional violation calling for a system-wide remedy. Peti
tioners also criticize the district court’s reference to a “ constitu
tional right’ ’ of schoolchildren to “ share equally all facilities of a
school system, both the superior and the inferior.” A .102. Whatev
er this means, and we think the court of appeals speculated as accu
rately as one can (A .122-23, and pages 53-54, supra), what the dis
trict court ordered was “ actual desegregation” “ to dismantle [the]
dual school system.” Swann, 402 U.S. at 22, 24. There is no indica
tion that the language in question was anything other than another
88
minus 15% ” requirement would not be applied to the
10th and 11th high school grades, and the orders pro
vided that “ where a specific school should deviate fur
ther from the foregoing percentages by reason of geo
graphic location, the Court will consider such instances
on a school-by-school basis.” A .104; see also id. at 106.
Against this background the “ 15% plus or minus”
requirement was a valid guideline, and the burden was
clearly on the Board to come forward with specifics if
it thought the guideline was not workable with respect
to either the system as a whole or to particular schools
in the system. It is dispositive, in our view, that the
Board has never—not in the district court, not in the
court of appeals, and not in this Court—identified a
single school or set of schools that could not be feasibly
desegregated under the district court’s guidelines. See
Swann, 402 U.S. at 27-31. The Board also failed to
come forward with a specific plan which attempted
imprecise, off-hand statement characteristic, unfortunately, of the
district court’s opinions. As with other such imprecision or mis
understanding on the part of the district court, the court of appeals
properly condemned any implication in this statement that might
be read to create a right “ which the federal courts have never rec
ognized.” A.122. The court of appeals faithfully adhered to this
Court’s admonition against ordering any particular degree of ra
cial balance as a matter of substantive constitutional right. Swann,
402 U.S. at 24. The court below also carefully reviewed the pro
ceedings, context and actual plan ordered to insure that the plan
itself and the actual judgment were not infected by any such un
constitutional implication. A.121-123. The situation here is thus
readily distinguishable from the one in Spangler, supra, where this
Court found that an unclear but facially valid district court judg
ment became infected with an impermissible factor by a statement,
made in the course of reinterpreting the judgment several years
later, which imposed a fixed racial ceiling on the schools’ pupil en
rollments to be maintained “ at least during [the district judge’s]
lifetime.” 427 U.S. at 433.
89
to justify the maintenance of any one-race school or
set of schools as being ‘ ‘ genuinely nondiscriminatory. ’ ’
See Swann, 402 U.S. at 26. Instead the Board places
sole reliance on its claim, refuted above, that there is
no system-wide violation.
In Swann, this Court reviewed a similar district
court order which directed “ that efforts should be
made to reach a 71-29 ratio in the various schools so
that there will be no basis for contending that one
school is racially different from the others . . . [and]
[t]hat pupils of all grades [should] be assigned in
such a way that as nearly as practicable the various
schools at various grade levels have about the same
proportion of black and white students.” See 402 U.S.
at 23. With respect to the Charlotte-Mecklenburg
Board’s argument that the district court there had im
posed a “ fixed racial balance” requirement, this Court
noted: “ The fact that no such objective was actually
achieved—and would appear to be impossible-—tends
to blunt that claim. . . . ” Id. The Court nevertheless
recognized that the district court’s language at issue
there was susceptible to the construction urged by the
Board, and the Court held: “ I f wre were to read the
holding of the District Court to require, as a matter of
substantive constitutional right, any particular degree
of racial balance or mixing, that approach would be
disapproved and we would be obliged to reverse.” Id.
at 24. But the plan actually approved in that case
provided only “ that student bodies throughout the
system would range from 9% to 38% Negro” (id. at
10) ; and the Board there, as the one here, had de
faulted in its obligation to propose an acceptable plan,
causing the district court there, as here, to designate
Dr. Dinger “ to assist the District Court to do what the
90
Board should have done” Id. at 25.5S This Court ap
proved the order in these words (id.) :
We see therefore that the use made of mathe
matical ratios was no more than a starting point
in the process of shaping a remedy, rather than an
inflexible requirement. Prom that starting point
the District Court proceeded to frame a decree
that was within its discretionary powers, as an
equitable remedy for the particular circumstances.
. . . In sum, the very limited use made of mathe
matical ratios was within the equitable remedial
discretion of the District Court.
The “ 15% plus or minus” language employed by the
district court in the instant ease is considerably more
flexible than the “ 79-29” language employed by the
district court in Swann. And the 30% total deviation
allowed by the terms of the district court’s order in
this case is slightly greater than the 29%, deviation
contained in the actual plan approved by the district * II,
58 The Board’s default and failure here are greater than that
of the Board in Swann. As the court of appeals held in Brinkman
II, the “ free choice” plan proposed by the Board for yet another
school year, 1975-76, did “ not even purport to dismantle Dayton’s
one-race schools ” ; “ the basic pattern of one-race schools will con
tinue largely unabated.” A .93. The Board’s plan as implemented
maintained 22 schools 90% or more black and 17 schools 90% or
more white. A.588. In Swann, by comparison, “ [t] he final board
plan left 10 schools 86% to 100% Negro and yet categorically re
jected the techniques of pairing and clustering as part of the de
segregation effort.” 402 U.S. at 24 n.8. As in Swann, therefore, the
Board with its 1975-76 plan utterly failed to meet its burden, in
view of the system-wide violation (see Arguments I & II above),
“ to satisfy the courts that [these virtually one-race schools’ ] racial
composition is not the result of present or past discriminatory ac
tion on their part.” Id. at 26. Further delay in fashioning an ade
quate remedy in light of the Board’s default was surely not tol
erable. Alexander v. Holmes County Board of Education, 396 U.S.
19 (1969); Swann, 402 U.S. at 14.
91
court in Swann. Moreover, the actual plan imple
mented below pursuant to the district court’s order has
resulted in a much greater deviation than that ap
proved by the Court in Swann. An October 14, 1976
report published by the Research Division of the Day-
ton Board’s Department of Management Services (at
tached hereto as Appendix B ), reveals that the plan
as implemented contains the following maximum de
viations: at the elementary level, the Webster school
has the smallest proportional black pupil population at
30.2%, compared with the highest black pupil propor
tion of 75% at the Jackson primary, for a total range
at the elementary level of 44.8% ; at the high school
level the comparable range is 29.1% black at Belmont
high school to 72.4% black at Dunbar high school, for
a total high school range of 44.3%.59 This is not racial
balance; it is typical desegregation. The Board’s
“ fixed racial balance” argument is therefore devoid of
both factual and legal merit.
2. The second prong of the Board’s “ racial balance”
objection is that the courts below have imposed “ a
59 Excluded from these comparisons are some small schools (e.g.,
the 100% black Weaver school with 29 total pupils, the 9.7% black
Gorman school with 93 pupils) which do not fit the normal enroll
ment patterns.
We observe from Appendix B what appears to be a continuing
racial pattern in pupil assignments: most of the former all-black
or virtually all-black schools remain predominantly white. One of
the Board’s own experts testified that such a pattern, which re
tains the former racial identity of the schools, would not constitute
effective desegregation of the Dayton system. A .300. By defending
in this Court the desegregation orders entered below, we do not
intend to waive any proper objections that might be made to the
plan as implemented by the Board. In accordance with the deci
sions of this Court, the district court has retained jurisdiction “ un
til it is clear that disestablishment [of the dual system] has been
achieved.” Baney v. Board of Education, supra, 391 IJ.S. at 449.
92
fixed racial formula” that “ is a permanent ratio so
that adjustments of student assignments would be re
quired each year as long as the system exists to main
tain the ratio in each school.” Pet. Br. at 34. There
fore, argues the Board, the plan approved below vio
lates the strictures of this Court’s decision in Pasa
dena City Board of Education v. Spangler, supra.
In Spangler this Court disapproved a district
judge’s remedial order requiring implementation of a
plan under which “ no majority of any minority”
would be present in any school, which the district court
had subsequently determined to mean “ at least during
[his] lifetime.” See 427 U.S. at 433. This Court held
that “ in enforcing its order so as to require annual
readjustment of attendance zones so that there would
not be a majority of any minority in any Pasadena
public school, the District Court exceeded its author
ity.” Id. at 435.
No comparable provision or requirement has ever
been entered by the district judge, nor contained or
intimated in any statement ever made by him, in the
instant case. The court of appeals scrutinized this
record for language conflicting with Spangler, and
could find none: ‘ ‘ The short answer to this argument
is that the judgment directs no changes after the
1976-77 school year.” A .123. The court of appeals fur
ther directed: “ I f adjustments to this plan are sought
by any of the parties in future years the district court
will necessarily consider the limitations of Spangler
in dealing with such requests.” A.123. The Dayton
Board’s argument to the contrary before this Court
is based on unfounded speculation and is incorrect.
93
B. The Board's Resegregaiion Argument Is Wrong.
The Board argues that the plan ordered below “ will
not work” because “ [t]he record establishes that dur
ing the five years this case has been in the courts 11,000
white and 900 black students have left the Dayton
system.” Pet. Br. at 37. Prom there the Board leaps
to the conclusion that the actual desegregation plan
approved below will cause resegregation of the city’s
schools, and that such a plan should therefore not be
approved. This is a specious proposition.
First, there is not a whit of evidence showing that
the declining pupil population in Dayton over the
years prior to this school year has had anything to do
with school desegregation. See A.301. Such a showing
is impossible, because prior to this school year there
has been no meaningful school desegregation in the
district. A.588-589.
Second, this Court has consistently rejected the ar
gument that school desegregation should be limited in
order to accommodate community hostility. The Court
so held in Brown II, again in Cooper v. Aaron, 358
U.S. 1 (1958), and most recently in Monroe v. Board
of Commissioners, supra. Here, as in Monroe, the
Board’s argument “ reveals its purpose. We are
frankly told in the Brief that without the transfer
option it is apprehended that white students will flee
the school system altogether.” 391 TT.S. at 459. In
Monroe, the Court answered that argument (id.) by
quoting Broivn II , 349 U.S. at 300: “ But it should go
without saying that the vitality of these constitutional
principles cannot be allowed to yield simply because
of disagreement with them.” The Dayton Board
should be given the same answer.
94
Finally, it is important to recognize what the Board’s
argument is not. It is not the Board’s position, for
example, that a different but equally effective plan of
system-wide pupil desegregation would be more ac
ceptable to the community and would result in greater
actual desegregation than the plan approved below
(which the Board was allowed to implement in any
fashion it chose so long as actual pupil desegregation
occurred). And it is not the Board’s position, for fur
ther example, that a different but equally effective de
segregation plan could be devised that would minimize
the non-school causes for the residential flight from
Dayton proper to its suburbs. Whether or not judicial
consideration of “ white flight” in either of those cir
cumstances, or in similar circumstances, would be per
missible, is thus not before the Court in this case.
Rather, the Board’s argument simply is that the judg
ment below should be set aside because of speculation
that a demographic trend which started when the
schools were segregated will continue under the school
desegregation plan ordered below. That demographic
trend is regrettable, in our judgment, but it is a prob
lem with which federal judges are not required to deal
in the context of a school desegregation ease. What
they can and must deal with, however, is unlawful
school segregation. The judges below have done that;
they are clue to be affirmed, and the Board’s “ it won’t
work” objection (belied by the figures in Appendix B,
attached hereto) is due to be rejected.
95
IV. PLAINTIFFS HAVE STANDING TO BRING THIS CASE IN
THEIR OWN RIGHT AND AS REPRESENTATIVES OF THE
CLASS,
After “ five years of litigation” of a clearly adver
sary nature between very real parties in interest, peti
tioners argue that this school desegregation case
should be dismissed without further ado because the
named plaintiffs are “ curious bystanders” who have
no stake in the outcome of this litigation. Pet. Br. at
38. Petitioners’ charge goes too far. There must be
very few, if any, school cases in which the record of
the local black community’s challenge to intentional
segregation of their public schools has been any longer
or more open and unrelenting. See, e.g., A.358-59 (P X .
9), 456-57 (P X . 13A), 459-61 (P X . 13N). And prob
ably in no school case has there been as much testi
mony from as many “ eyewitnesses” to and “ victims”
of the de jure segregation practices of their local
school board. See, e.g., A.181-191, 197-199, 200-208,
208-215, 220-221, 221-223, 238-240, 290-291; R. I. 352-
384, 536-563, 741-750, 795-817. Of. Smith v. Board of
Educ., 365 F.2d 770, 777 (8th Cir. 1966) (Blaekmun,
J.). Petitioners’ suggestion that these courageous Day-
ton citizens are an “ anonymous collection” who have
no more standing to bring this suit than “ to file a
similar law suit against every school board in the
United States” (Pet. Br. at 39) is not credible.
As a matter of law, petitioners’ procedural claim is
also wrong. As with some of the other issues raised by
petitioners, however, resolution of this claim may ap
pear somewhat more difficult than it really is, due to
the nature of the proceedings below. In summary,
named black and white plaintiffs, 6 parents and 13
96
children, filed their complaint on April 17, 1972, alleg
ing that they “ are parents or minor children thereof
attending schools in the Dayton public school system”
who seek a racially noil-discriminatory system of pub
lic schooling “ on behalf of themselves and others sim
ilarly situated. ’ ’ Complaint, I 2. The succeeding para
graph of the complaint made general class-action alle
gations under Rule 23, F ed. R. Civ. P. On July 24,
1972, petitioners (the Board and four of its members)
filed their answer specifically responding to some of
the complaint’s allegations (but not the one in ques
tion), and generally denying “ each and every other
allegation contained in the complaint of plaintiffs. ”
Answer, H 5. On July 24, 1972, three defendant board
members filed an answer generally admitting the alle
gations of plaintiffs’ complaint. Prior to trial the par
ties submitted briefs on the standing and class action
issues. On November 13, 1972, the defendant Superin
tendent of the Dayton public schools filed his answer
and, “ based upon a search of the records of the school
system, personal recollection and staff information,”
admitted the allegations.
During the November 1972 evidentiary hearing
many black school administrators, teachers and par
ents, some with children in the Dayton public schools
(e.g., R. I. 361, 370-373), testified on behalf of plain
tiffs to their personal injury from and challenges to
the Dayton Board’s racially discriminatory policies
and practices beginning as early as 1912 and continu
ing through the date of trial. No named plaintiff testi
fied; however, the Board offered no proof from the
records within its possession, or otherwise, to rebut its
Superintendent’s admission (based upon his search of
97
the school district records) to named plaintiffs’ allega
tions concerning their status in the Dayton public
schools.
In its February 7, 1973 decision, the district court
determined: “ [t]his is a school desegregation suit
brought as a class action by the parents of black chil
dren attending schools operated by the defendant Day-
ton (Ohio) Board of Education.” A .l. In the face of
this determination adverse to their position, the Day-
ton Board claimed on its appeal, inter alia, that plain
tiffs had failed to show any stake in the controversy
sufficient to maintain the action on behalf of them
selves or the class of black school children in Dayton,
Ohio. Although the court of appeals did not separately
discuss the issue in Brinkman I, it held that “ all con
tentions of the parties contrary to the conclusions
reached in this opinion have been carefully considered
and are found to be without merit.” A.69. The Board
did not petition this Court for review of that judg
ment. On remand to the district court, on plaintiffs’
second appeal to the Sixth Circuit in Brinkman II,
on the Board’s first petition for review in this Court,
or further proceedings pursuant to the second remand
to the district court, and on the Board’s appeal to the
Sixth Circuit in Brinkman III , the Board never again
raised any claim that plaintiffs lacked standing to
maintain this action on behalf of themselves or the
class.
We recognize that the law of the case is a discretion
ary rule subject to modification in the interests of
justice, particularly in this Court {see generally IB
Moore’s F ederal P ractice 114.04 (2d ed. 1974)), and
we recognize that standing, in its “ case or contro
98
versy” dimension, is a “ threshold question in every
federal case, determining the power of the court to
entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498
(1975). But there is no reason at this late date to set
aside the final determination by the district court and
the court of appeals in Brinkman I that plaintiffs
have standing to bring this action in their own right
and as class representatives. The parties (including
the plaintiffs) and the courts below have relied on this
determination, and the Board has not since contro
verted it until now. It would be a manifest injustice to
hold that plaintiffs do not have standing to maintain
this action merely because they relied on the lower
courts’ final determination in Brinkman I, rather than
seek to reopen the record to supplement the proof in
prescient anticipation of an issue to be raised in a
future petition for certiorari.
In contrast, the Board has offered no affirmative
reason why it should not be bound by the Brinkman I
determination on the issue, after choosing not to seek
review in this Court and never again raising the issue
below. Cf. Pasadena City Bd. of Educ. v. Spangler,
427 U.S. at 432.60 Surely these circumstances ade
quately explain why the courts below have provided
“ no explanation of just why this contention of the
Dayton Board is without merit. . . . ” Pet, Br. at 38.
This explanation is especially adequate since the orig
inal decision on plaintiffs’ standing in Brinkman I
was supported by the defendant Superintendent’s un
refuted judicial admission of plaintiffs’ status based
60 In Spangler this Court noted that “ de do not have before us
any issue as to the validity of the district court’s original judg
ment, since petitioners’ predecessors did not appeal from it.’ ’ 427
U.S. at 432.
99
on his search of the school system’s records ( cf. Rule
801(d)(2), F ed . R. E v id . ) , and since the interest of
the plaintiff class in the controversy was shown by
such extensive testimony to be “ real and immediate,”
not “ conjectural” or “ hypothetical.” Cf. Sosna v.
Iowa, 419 U.S. 393, 403 (1975).
In any event, in order to resolve all possible doubts
at this juncture, the first time and the first court
where the issue has been controverted by petitioners
since they chose not to seek review from the Brink-
man I decision, we have filed with the Court affidavits
of the parents of 11 of the named plaintiff children.
The parents affirm that all 11 children were students
in the Dayton Public Schools at the time of the filing
of this action and that six of them still attend the Day-
ton public schools, five having since graduated.61 Un
der Spangler, 427 U.S. at 430, named plaintiffs there
fore have standing to maintain their action to secure
a racially unitary system of public schooling in Day-
ton, Ohio, regardless of whether the district court’s
determination of the class is as definite as one might
wish under Rules 23(c) (1) and (c) (3 ), F ed R. Civ. P.
Cf. Board of School Commissioners of City of India
napolis v. Jacobs, 420 U.S. 128, 130 (1975).62 Unlike
61 For example, as set forth in the March 27, 1977 affidavit of
plaintiff C. R. Walker, Jr., a black citizen of these United States,
his three plaintiff children at the time of trial attended the Weaver
school, one of the “ mixed” schools converted in the West-Side Re
organization. See pages 16-18, supra. His children now attend the
McFarlane elementary school, which this school year is not a 100%
black school for the first time in its long history since opening in
1932 as the blacks-only Dunbar school.
62 The need for precision in the definition of the class in this
ease is not as great as in Jacobs, 420 U.S. at 130, because there is
considerably less likelihood of mootness. The issue here concerns
100
the Spangler circumstances, named plaintiffs still in
the Dayton public schools have a sufficiently personal
stake in this litigation to maintain the action, even if
the system of intentional segregation from which plaintiff children
may suffer immediate and continuing constitutional injury for up
to 13 school years or more, not school authorities ’ periodic infringe
ment on particular high school students’ free-speech rights. More
over, unlike Spangler where named plaintiffs sought to desegregate
only high schools (see 415 F.2d 1242 (9th Cir. 1969)), the com
plaint here prayed for system-wide relief without limitation; there
fore, the Board understood from the beginning of this action that
the plaintiffs sought to eradicate de jure segregation and racial dis
crimination from all aspects of the Dayton public schools. In any
event, the district court’s determination of the class as “ the par
ents of black children attending schools operated by the defendant
Dayton (Ohio) Board of Education” (A .l) is sufficiently definite
and comprehensible within the contemplation of Rule 23. See Notes
of the Advisory Committee on 1966 Amendments to Rule 23, 3B
Moore’s F ederal Practice, at pp. 23-28. Finally, because this case
has not been mooted by the graduation of the individual plaintiff
children and the controversy therefore does continue between
named plaintiffs still in the Dayton public schools and the peti
tioners, any deficiency in this class determination can be cured,
either by this Court or the courts below under their continuing
jurisdiction of the case. Of. Rule 23(c) (1 ) ; Senter v. General Mo
tors Corp., 532 F.2d 511 (6th Cir. 1976) ; Rodriguez v. East Texas
Motor Freight, 505 F.2d 40, 51 (5th Cir. 1974), cert, granted, 44
U.S.L.W. 3670 (U.S. May 24,1970).
Of course, school desegregation cases are appropriately main
tained as class actions; they are the archetype for Rule 23(b)(2)
actions. See Notes of the Advisory Committee on 1966 Amendments
to Rule 23, supra. But even a single school-attending child or his
parent, black or white (see Whitely v. Wilson City Bd. of Ed.,
427 F.2d 179 (4th Cir. 1970); cf. Trafficante v. Metropolitan Life
Ins. Co., 409 U.S. 205 (1972); Barrows v. Jackson, 346 U.S. 249
(1953)), surely has standing to maintain this action to root out
official racial discrimination throughout the Dayton public schools.
This is so because the individual plaintiff’s right is not to attend a
particular school but rather to “ a racially non-diseriminatory sys
tem of schooling.” Brown II, 349 U.S. at 301. That is, “ to attend
schools which, near or far, are free of governmentally imposed ra-
101
some may think that their older brothers and sisters
who have graduated since the filing of this lawsuit do
not. To the end of this litigation, then, there must un
fortunately be, and there is, a controversy between
plaintiffs and the Board over the Fourteenth Amend
ment rights of black schoolchildren in. Dayton, Ohio.
CONCLUSION
The judgment below should be affirmed.
Respectfully submitted,
Robert A. Murphy
Norman J. Chachkin
W illiam E. Caldwell
Lawyers’ Committee For
Civil Rights Under Law
520 Woodward Building
733 Fifteenth Street, N.W.
Washington, D. C. 20005
Richard A ustin
Suite 1500
First National Bank Building
Dayton, Ohio 45306
Paul R. D imond
O ’Brien, Moran & Dimond
210 East Huron Street
Ann Arbor, Michigan 48104
Louis R. Lucas
Ratner, Sugarmon, Lucas,
Salky & Henderson
525 Commerce Title Building
Memphis, Tennessee 38103
Nathaniel R. Jones
1790 Broadway
New York, New York 10019
Attorneys for Respondents
cial distinctions . . the individual plaintiff’s school desegrega
tion action is directed at the “ system-wide policy of racial dis
crimination.’ ’ Potts v. Flax, 313 F.2d 284, 288-290 & n.4 (5th Cir.
1963).
APPENDIX
l a
APPENDIX A
Here we summarize the evidence relating to the Dayton
Board’s policies and practices in the areas of (1) school
construction, closing and site selection, (2) grade structure
reorganization, and (3) pupil transfers and transportation.
With respect to these items, the court of appeals in Brink-
man I determined that plaintiffs “ have raised serious ques
tions” as to the district court’s failure to include these
practices “ within the cumulative violation.” A.67. For rea
sons set forth in the main part of this brief {see notes 46 &
14, supra), we do not think these questions need to be an
swered in order to sustain the judgment below. We present
this Appendix if we are wrong in our view of the case, in
which event the Court may wish to address these reserved
issues instead of remanding for consideration by the court
of appeals in the first instance.1
1. School Construction, Closing and Site Selection
The Board’s school-construction, school-closing and site-
selection policies and practices over the past two decades
failed to alleviate the condition of state-imposed segrega
tion extant at the time of Brown. To the contrary, the
Board’s policies and practices in these areas impacted the
dual system and literally sealed it in. In the period of ex
pansion of the school system from the late 1940’s to the
mid-1960’s, the overwhelming majority of new schools and
1 The Board’s representation that plaintiffs on the prior ap
peals “ begged” the Sixth Circuit to decide these reserved issues
because we ‘ ‘ have long since recognized that the only way to avoid
the conclusion that the remedy is disproportionate to the wrong
and therefore inequitable” (Pet. Br. at 27), is not accurate. We
did, however, suggest that a decision on the independent uncon
stitutionality of the practices discussed in this appendix is the
surest way to put permanently to rest, the Board’s incessant ob
jections to a system-wide remedy. But we have never intimated,
nor do we now intimate, that plaintiffs’ right to system-wide relief
depends on the disposition of these reserved issues.
2a
additions to schools were located by the Board in either
virtually all-black or virtually all-white areas, and attend
ance boundaries were drawn or maintained so that new
schools and expansions of existing facilities opened as vir
tually one-race schools. A.241-246, 277-78. Of 24 new schools
constructed between 1950 and the present, 22 opened 90%
or more black or 90% or more white. A.242, 316-17 (PX4).
During the same expansion period, additions to existing
facilities followed the same pattern. 78 of some 86 addi
tions of regular classroom space, for which racial composi
tions are known, were made to schools 90% or more one
race at the time of the expansion; only nine additions were
made to schools less than 90% black or white. A.277-78. The
race-oriented nature of these practices is made crystal clear
by the coordinate assignment of professional staffs to these
schools and additions tailored to the racial composition of
the pupils. A.316-17 (PX4); A.275; E.I. 1824-26, I860.2
A few examples will suffice to illustrate the racial under
pinnings of this complex process. For example, in 1962 the
Willard and Garfield schools, previously designated for
blacks only, were closed and the old blacks-only Dunbar
high school building was converted into McFarlane ele
mentary. Most of the children from the Willard and Gar
field attendance areas were simply assigned to the McFar-
2 Plaintiffs’ expert, Dr. Gordon Foster, testified that such school
construction patterns “ by and large . . . took the place of chang
ing zone lines in terms of maintaining existing racial patterns
and compacting them” A.285. Mr. Bagwell, the Dayton Board’s
chief rebuttal witness with respect to school construction, ad
mitted that “ in effect then, when you . . . put an addition to a
school, that as far as that space is concerned, you determine the
boundaries and they are coextensive with the original boundaries
of the school. . . . So that if a school is already 100 percent black
and you are making an addition to that school, you in effect
have determined the boundaries to be . . . creating a hundred
percent black school unit.” A.288. The same is true with respect
to the virtually all-white or all-black primary units, as well as
one-race additions. A.249-50.
3a
lane 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 ele
mentary schools. At the same time, a newly constructed
Dunbar high school, located in a black neighborhood at the
fartherest corner of the school district away from substan
tial white residential areas, opened with a virtually all-
black student body and faculty. See Statement, supra, at
note 10. Thus, a major new element was added to the dual
system and, although there was some juggling within, the
color line remained basically intact.
Another example of a lost opportunity to accomplish de
segregation occurred upon the closing of the Central school
in the mid-1960’s. The boundaries of the schools on the
east side of Central were basically preserved with the result
of maintaining the white identity of those facilities. Bound
aries for an all-white school in the north were extended
south to take in the northern half of the old Central zone
in a proverbial “ dog leg” which took in only the white
areas of the zone. An area in the south end of the old Cen
tral zone containing a small black population was made an
optional area, which crossed the river, between the virtual
ly all-black Irving school and the all-white Emerson school.
PX49 (1965 attendance zone overlay); PX46C (1960 census
map).
A final example, presenting the converse of the above ex
amples, relates to the Board’s failure to utilize excess ca
pacity to the maximum efficiency as pupil populations de
clined by over 10,000 following their peak year in the mid-
1960’s. Even conservative estimates at the time of trial
indicated that the Board could have closed down 9 or 10
average-size elementary schools. A.246-47, 489-98 (PX56).
Such closings would have presented the Board with sub
stantial opportunities to accomplish significant savings in
costs, and at the same time accomplish substantial deseg
4a
regation.3 But rather than closing selected black and white
schools and reassigning pupils to accomplish actual de
segregation, the Board elected the more costly segregative
option of keeping these under-utilized schools open and
maintaining their racial identity.
2. Grade Structure and Reorganization
As previously noted, the Board persistently refused to
alter grade structures by pairing schools to accomplish
pupil desegregation. See Statement, supra at pp. 29-30.
Likewise, the differential grade structure involved in the
construction of primary units, and the grade organiza
tions of the Dunbar high school (prior to 1962) and the
Patterson high school (prior to 1968-69 school year) have
perpetuated and compounded school segregation. See
Statement, supra, at notes 10 & 22.
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) af
fected. A.376-87 (PX10). Yet, in the face of recommenda
tions from the State Department of Education of alter
natives for accomplishing substantial desegregation, and
the development of a pupil locator map so that there
3 There would be substantial cost savings with repect to such
closings, even if substantial pupil transportation were required
to accomplish school desegregation conveniently and safely for
the children. According to the Board, the average yearly per
pupil transportation cost on Board-owned buses is $50.00, while
the average yearly per pupil cost for simply maintaining a pupil
space in. a school is $140.00. (Nos. 33 & 33A of plaintiff’s Re
quests for Admissions (served October 13, 1972), admitted by
both the Board and the Superintendent and Board minority.)
5a
could be no doubt about the racial impact of its actions,
the Board implemented a plan which reimposed segrega
tion at three middle schools and their feeder elementaries,
increased racial segregation at another middle school, and
accomplished some desegregation at the fifth middle
school. A.453-54 (PX12). The Board’s actions thus re
sulted in “ increasing or maintaining segregation as op
posed to availing the opportunity of decreasing it.” A.
276. 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 de
grading to schoolchildren. ” A.454 (PX12).
3. Pupil Transfers and Transporlation
Prior to the West-Side Reorganization in 1952 (see
Statement, supra, at pp. 15-18), the Dayton Board regular
ly transferred (and provided transportation where nec
essary to) white children from the attendance areas of
black schools, past or away from other all-black schools
to “ whiter” schools. R.I. 1953-55. And 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 Statement,
supra, at note 12. And the city-wide Dunbar and Patter
son high schools operated in similar fashion. See State
ment, supra, at notes 10 & 22.
In addition, curriculum, hardship and disciplinary trans
fers have functioned in many instances to assign white
children from black schools to “ whiter” schools. R.I. 807-
10, 696; A.218-19. Two prime examples are the use of
curriculum transfers by white students under the Free
dom of Enrollment plan (A.218-19), and the emergency
transfers of students in 1969 involving the Roth and
Stivers high schools. A.272, 469-70, 474. This latter in
cident takes on additional significance because it occurred
6 a
in connection with the only time prior to trial that the
Board redrew an attendance boundary to accomplish de
segregation. This was accomplished by adding some of
the all-black Roosevelt and Dunbar attendance areas to
the predominantly white Stivers high school. B.I. 1253,
1255-57. In the very first year following this realignment,
racial problems at Stivers, as well as at the predominantly
black Roth, led to the transfer of 34 black students out of
Stivers to the all-black Dunbar or Roosevelt schools, and
36 white students out of Roth to the virtually all-white
Meadowdale, Stivers, Kiser and Fairview high schools.
None of the white children transferred were assigned to
black schools; and none of the black children transferred
were assigned to white schools. R.I. 1259-66.
Overall, hardship, emergency and special education
transfers were also carried out in such a way as to re
flect and reinforce the underlying racial duality in pupil
assignments. A.273. 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. A.379-80 (PX16F).
Throughout the post-Brown period, non-resident pupils
attending the Dayton system on a tuition basis were as
signed in a similarly racially dual fashion: white pupils
were assigned to white schools (A.231-32), and black pu
pils were assigned to black schools. A.201. The assignment
practices relating to several hundred white high school
pupils from Mad River Township, who attended the Day-
ton 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 as
signing these non-resident pupils to the black Dunbar,
Roosevelt or Roth high schools, which had ample space.
7a
Instead, the Board notified the Mad River Township
school district that space would be unavailable for these
tuition pupils in the 1960’s. A.231-33, 475; R.I. 1928-31.
In all of the various forms of pupil reassignment, it was
the unbroken practice of the Board never to reassign
white pupils to identifiably black schools. A.232.
An additional, classical segregative technique utilized
by the Dayton Board was “ intact” busing. There are
two examples. First, in 1963 white children from the Bus
kin school were transported intact (i.e., teacher and class
as a unit) into separate one-race classes at the racially
mixed Central school. R.I. 586-87. The second instance oc
curred in 1968 when the black Edison School was partially
destroyed by fire. These black children Avere transported
to a number of white schools throughout the city. But
they remained as segregated as if they had been trans
ferred to all-black schools, because they were accommo
dated in the white transferee schools in separate intact
classes. A.201-03; R.I. 1069-71.4
4 Significantly, intact busing was not the Board’s first alterna
tive 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 class
rooms in other schools in the city. Then, without further con
sultation with Mr. Harewood, the decision was made to transport
self-contained black units into the white schools. A.201-02; R.I.
582-84. The next Fall, the new Superintendent of Schools ordered
that the “ intact” aspect of these reassignments be terminated.
Upon later examination hoAvever, he found that the black children
were still being segregated within the Avhit.e schools under some
what more subtle “ tracking” procedures, and he again ordered
that the children be fully integrated. R.I. 1071-72. Thus, only
through pressure from a new Superintendent and from Mr. Hare
wood was the “ intact” brand of racial discrimination terminated,
and the Edison children integrated into the white schools to
Avhich they had been reassigned. Also at this time, predominantly
8a
Tims, for several decades Dayton school authorities
have transported children for a variety of reasons. But,
with only a few hard-fought exceptions, children have nev
er been transported in such a fashion as to accomplish
desegregation; with singular consistency, the Dayton
Board’s transportation practices have maintained, rein
forced and/or exacerbated racial segregation.5
black groups of children from the over-crowded Jefferson school
were assigned by non-eontiguous zoning to a number of white
schools. R.I. 848, 850; P X 122. These small amounts of actual,
although only one-way, desegregation were short-lived, however.
Instead of expanding the use of these desegregative alternatives,
the Edison and Jefferson reassignments were terminated for the
1971-72 school year and the black children were resegregated into
the rebuilt black Edison school (and by then, the black McFar-
lane middle school), and the black Jefferson school. A.231. The
segregative effect of these reassignments is shown by the following
chart comparing the percentage black of the receiving white
schools (see P X 122) in the 1970-71 school year to that existing
in the 1971-72 school year:
School % Black
1970-71
% Black
1971-72
Ft. McKinley 9.6 1.6
Loos 9.5 6.0
Horace Mann 11.1 0.7
Shiloh 7.4 0.9
Shoup Mill 13.9 1.4
Velerie 20.0 13.5
5 Although transportation has been used only twice (see note 4,
supra) for desegregation purposes, pupil transportation has not
been an uncommon event in Dayton. For many years white chil
dren in the far northwest, northeast and southeast areas of the
system were transported to white schools in those areas (A.230-
31), and, of course, black orphan children were transported all
the way across town to the all-black Garfield school (see State
ment, supra, at note 7.)
Ohio law requires that local school authorities make transporta
tion available, and the Dayton Board so acts, for students who
are assigned to schools beyond a prescribed distance from home.
A.228, 289.
9a
Finally, the Board’s Freedom of Enrollment policy, as
it existed at the time of trial, was, at best, a washout as
a desegregative technique. Under this policy, students re
siding 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 re
questing transfers and whose enrollment would improve
the racial balance in the receiving school. A.466-67 (PX
16B). The first priority merely froze in the pattern of
segregation which began two-thirds of a century ago. The
second priority actually contributed to school segregation
because it was used by whites to transfer from black
schools to white schools. A.218.6 Under the third priority,
459 black children transferred in the 1972-73 school year
to white schools, thereby accomplishing some actual de
segregation ; but only one white child, formerly in a paro
chial school matriculating into a. 54.3% black high school,
made a racial balance transfer. A.478 (PX16D), 273.
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 negligi
ble if not retrogressive impact on the racially dual pat-
ern of pupil attendance.
6 In the 1972-73 school year, for example, 22 of 23 white stu
dents transferring under the Freedom of Enrollment policy were
transferred to white schools. A.478 (P X 16D).
11a
APPENDIX B
ETHNIC ENROLLMENT BY SCHOOLS
Dayton Public Schools
October, 1976
Total Enrollment % Black
School 1963-64 1969-70 1971-72 1972-73 1973-74 1974-75 1975-76 1976-77 1963-64 1969-70 1971-72 1972-73 1973-74 1974-75 1975-76 1976-77
Jane Addams 600 668* 578* 541* 530* 515* 472* 452* 41.6% 78.7% 81.7% 78.7% 86.6% 88.9% 90.5% 58.2%
Allen 574 668 629 622 606 566 576 504 0.6 0.1 0.6 0.6 2.3 2.1 2.4 36.9
Belle Haven 1180 1091 994 871 928 885 876 956 0.0 5.7 10.3 17.7 26.6 33.2 39.0 48.4
Belmont Elem. 794 635 542 554 527 522 520 380 0.0 0.0 0.0 9.4 10.4 7.5 9.0 43.2
Brown 1177 1130 1067 980 1046 1009 976 865 0.5 0.8 1.0 2.2 2.9 2.9 5.4 49.4
Carlson 244 626 574 519 500* 489* 467* 440* 95.9 99.7 99.5 99.0 98.4 100.0 99.8 65.9
Cleveland 1180 1335 1246 1150 1119 1109 1038 819 0.0 0.1 0.3 0.8 0.9 0.6 0.6 44.3
Cornell Heights 890 894 784 800 767 743 722 563 0.0 59.1 72.3 80.5 86.7 88.8 92.7 59.0
Drexel 700 679* 601 597 551 543 540 398 3.5 4.3 6.5 8.2 9.1 7.6 6.3 42.2
Eastmont 950 792 607 542 527 470 520 425 0.0 0.0 0.0 0.7 0.9 1.1 19.4 42.1
Edison 800 532* 645* 603* 525* 692* 593* 548* 80.0 98.3 99.7 99.7 99.2 99.9 99.3 62.2
Emerson 1000 992* 816* 749* 685* 567* 520* 317* 0.0 13.6 5.6 8.9 10.1 12.2 10.6 38.5
Fairport 780 877 841 748 778 878 866 925* 0.0 4.6 39.7 59.1 78.1 85.2 89.8 61.2
Fairview Elem. 667 811 741 734 753 758 679 847 1.0 3.7 7.4 14.6 22.2 25.3 31.8 48.9
Ft. McKinley 510 473 451 425 — — — — 0.0 2.5 1.6 2.6 — — — —
Franklin 691 862 632 584 560 565 520 604* 0.0 0.0 0.0 0.3 0.4 0.5 0.0 39.2
Gardendale 176 282* 553* 554* 519* 532* 504* 295* 7.9 43.3 72.3 78.9 80.0 82.7 83.9 59.3
Gettysburg 630 632 598 576 609 590 558 516 0.0 6.6 14.5 22.7 37.4 51.2 57.7 63.6
Grant 917 699 649 610 552 533 475 415 0.0 0.9 0.6 0.3 0.7 0.6 0.6 47.0
Grace A. Greene 715 555* 579* 453* 338* — — — 89.5 97.5 96.5 96.2 100.0 — ■ — —
Hawthorne 316 263 329* 275* 262* — — — 0.0 0.0 30.1 28.0 33.2 — — —
Hickorydale 565 487 432 471 513 521 520 454 0.0 10.3 15.5 32.5 44.2 54.1 61.9 69.2
Highview 807 812* 710* 635* 554* 440* 355* 561* 82.0 98.2 97.9 96.7 96.0 94.3 93.5 63.3
Huffman 834 1022 899* 775* 722* 662* 638* 513* 0.9 3.4 0.1 0.1 0.3 0.3 0.6 32.0
Irving 1035 749* 780* 656* 525* 399* 382* — 96.6 100.0 99.5 99.2 99.S 99.2 99.0 —
Jackson Elem. 1147 785 726 692 607 551 506 276 98.5 99.5 99.4 99.9 99.7 99.3 99.2 53.6
Jackson Prim. 537 707* 677* 630* 596* 547* 485* 316* 96.2 99.2 99.1 99.7 99.5 99.8 99.2 75.0
Jefferson Elem. 1284 841 860 807 720 688 590 568* 1.2 80.3 91.3 94.9 96.1 96.1 96.9 52.1
Jefferson Prim. — 661 719 724* 735* 668* 693* 550* — 72.0 88.0 93.5 94.7 96.4 97.5 70.2
Kemp 725 631 568 515 452 467 472 436 0.0 0.0 7.2 7.0 7.5 8.1 8.5 45.9
Lewton 600 543 471 451 418 422 393 303 0.0 0.0 0.4 5.S 10.0 8.1 6.4 36.0
Lincoln 1145 1019 966 885 866 863 775 654 0.0 0.2 1.0 0.6 0.1 0.2 0.5 32.4
Longfellow 850 991 838 875 826 758 739 686 5.8 50.2 60.7 64.1 69.9 72.3 74.6 66.0
Loos 785 719 631 606 633 639 592 470 1.9 5.0 6.0 5.8 5.2 6.7 8.1 47.7
MacFarlane 1229 1222* 921 772 658 633 527 858 99.6 99.9 99.5 99.6 100.0 100.0 99.8 54.7
Horace Mann 435 355 284 255 236 218 249 213 0.0 7.0 0.7 3.1 5.5 4.1 27.3 54.9
McGuffey 925 858 850* 774* 662* 620* 629* 721* 0.0 18.9 32.0 41.6 47.9 55.6 60.9 34.5
McNary — 498 423* 409* 412* 410* 360* 337* — 98.8 100.0 100.0 100.0 100.0 99.7 69.1
12a
Total Enrollment % Black
School 1963-64 1969-70 1971-72 1972-73 1973-74 1974-75 1975-76 1976-77 1963-64 1969-70 1971-72 1972-73 1973-74 1974-75 1975-76 1976-77
Meadowdale Elem. 930 671 522 508 754 706 691 768 0.0% 12.8% 8.2% 12.6% 12.3% 10.6% 13.0% 58.6%
Miami Chapel 793 722 481* 410* 398* 380* 500* 610* 99.6 99.6 100.0 99.8 100.0 100.0 79.4 67.4
Patterson/Kennedy* * 650 603 619* 726* 659* 586* 563* 466* 0.0 0.0 0.3 4.0 3.8 3.8 5.9 47.0
Residence Pk. Elem. 1112 746 702 660 654 592 536 437 80.0 99.2 99.7 99.8 99.5 98.5 98.5 60.0
Residence Pk. Prim. — 383 449 457 411 357 342 286 — 99.5 99.8 100.0 99.5 99.4 98.5 70.6
Buskin 1171 927* 834* 756* 733* 741* 714* 682* 0.0 4.3 0.1 0.5 0.1 0.5 0.4 52.2
Shiloh 490 645 550 537 548 486 442 284 2.4 6.0 0.9 8.4 14.2 15.4 17.4 53.9
Shoup Mill 318 336 207 184 — — — 316 0.9 13.4 1.4 3.8 — — — 62.3
Louise Troy 781 724* 592 567 530 504 467 507 99.8 99.7 99.7 99.1 100.0 100.0 100.0 71.8
Valerie —- 483 342 375 452 442 415 403 — 17.4 13.5 24.0 30.3 35.5 42.2 55.3
Van Cleve 770 780 760* 754* 634* 887* 842* 782* 0.9 1.7 14.9 20.2 19.6 28.4 31.5 51.2
Washington 650 703* 634* 628* 575* 576* 534* 418* 23.0 16.6 14.5 15.3 15.5 16.5 15.4 50.2
Weaver 1260 1118* 1001* 838* 605* 524* 457* 29* 98.8 100.0 99.7 99.5 100.0 99.6 99.8 100.0
Webster 531 537 493 502 527 551 547 540* 0.1 0.6 0.4 1.0 1.3 5.6 4.8 30.2
Westwood 1900 1467* 1318* 1190* 1008* 955* 877* 801* 94.7 99.5 99.5 99.7 99.5 99.5 99.5 68.5
Whittier 925 801* 748 615 576 533 408 643* 95.6 99.3 99.5 99.3 99.7 99.4 100.0 56.9
Wogainan 1100 1034* 988* 971* 967* 963* 916* 725* 100.0 100.0 99.8 100.0 100.0 100.0 99.7 66.5
Orville Wright 750 758 963 929 915 870 781 499 0.0 0.8 6.7 8.1 8.2 6.9 8.3 61.7
Gorman 102 108 101 85 85 86 112* 93 15.6 17.6 11.9 11.8 10.6 14.0 14.3 9.7
Kennedy** 144 181 153 — — — — — 13.8 11.0 15.7 — — — — —
Home Teaching — — — — — — 24 43 --- — — — — — 37.5 53.5
Belmont H.S. 1768 2003 2039 2056 2020 2094 2256 1829 0.0 0.5 2.7 5.2 5.3 6.8 7.6 29.1
Dunbar 1180 1471 1369 1357 1012 990 1283 1408 92.7 99.4 100.0 100.0 99.8 99.8 99.7 72.4
Fairview H.S. 1252 1396 1426 1426 1421 1365 1471 1028 0.9 9.3 19.1 24.1 35.0 43.2 58.3 55.7
Kiser 740 744 731 773 739 688 880 783 2.7 5.4 0.4 9.8 16.1 13.5 24.4 30.3
Meadowdale H.S. 1154 1750 1828 1866 1986 2145 2033 1653 0.0 1.4 5.2 10.6 22.7 33.7 40.6 35.6
Roosevelt 1850 1703 1691 1539 1393 1148 — — 94.5 99.8 99.9 100.0 100.0 100.0 — —
Roth 1120 1291 1191 1183 1068 1071 1204 1321 53.5 94.8 96.5 95.8 94.3 98.8 99.4 69.4
Stivers-Patterson
Patterson Bldg. 1020 1659 1764 1737 1236 1297 1371 1453 1.8 22.2 31.0 32.9 36.9 40.8 48.3 56.7
Stivers Bldg. 1150 1074 1247 1216 1217 1184 1268 1093 2.6 3.9 12.3 14.0 29.7 44.2 60.6 60.9
Colonel White 1668 1741 1727 1501 1449 1245 1330 1534 1.1 28.9 45.9 54.6 60.0 60.7 65.2 65.5
Wilbur Wright 1334 1332 1350 1397 1571 1593 1590 1558 3.3 4.2 5.5 9.2 12.2 12.0 14.9 38.1
Totals (ine. Pre-K) 57,007 58,287* 55,041* 52,162* 49,028* 47,031* 45,181* 41,177* 31.1 39.3 42.7 44.6 46.3 47.5 48.9 52.7
Totals (exe. Pre-K) 50,798 47,683 45,733 44,165 40,257 43.6 45.4 46.5 48.3 52.0
* Includes Pre-School in building
** Figures listed for Patterson/Kennedy include both Patterson and Kennedy for school years 1972-73 through 1976-77
Department of Management Services
Division of Research
10/14/76