Full opinion text
MEMORANDUM WALTER E. HOFFMAN, Chief Judge. Fourteen years following the implementing decision in Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), the courts, litigants, school children and parents remain confused with respect to the constitutional requirements touching the desegregation or integration of public schools. That Brown and the later cases have established the clear duty to operate a unitary school system cannot be doubted. Many problems arise in connection with the interpretation of the mandates emanating from judicial decisions as applied to the local situation. They may vary according to the particular locality; a factor acknowledged by the Supreme Court in the second Brown opinion. “Good faith implementation of the governing constitutional principles” would still appear to be the test. As we approach the ultimate and ancillary issues to be resolved in the pending case, reference should be made to the preliminary hearings pertaining to the School Board’s interim plan, and the District Court’s memorandum opinion approving same, Beckett v. School Board of City of Norfolk, 302 F.Supp. 18 (May 19, 1969). In fact, all prior proceedings in this prolonged litigation which commenced on May 10, 1956, have been incorporated into the record. While perhaps it cannot be said that counsel for the plaintiffs and plaintiff-intervenors are willing to concede that the School Board of the City of Norfolk has, at any time since the school-closing days of 1958, exhibited any lack of “good faith,” it is significant to note that the courts, both on the trial and appellate level, have praised the School Board of the City of Norfolk as it has approached the problems arising in desegregating the public school system. Even counsel for the NAACP, representing the individual plaintiffs and plaintiff-intervenors, and counsel for the Civil Rights Division of the Department of Justice, representing the United States of America as a plaintiff-intervenor, will freely concede that the School Board, together with its administrative personnel and legal staff, has readily supplied all information desired, and has conferred at length with opposing counsel whenever requested to do so. In the final analysis there is one primary question to resolve. Succinctly stated it is— Does good faith implementation of governing constitutional principles require racial balancing in each individual school throughout a school system comprised of many different schools where it is freely conceded that massive compulsory bussing will be required to accomplish such racial balancing ? The NAACP and Civil Rights Division argue that the logical answer to the fore-ing inquiry is in the affirmative. The School Board, with whom this Court agrees as to this point, contends that the answer is in the negative. The decisions of the Supreme Court and several of the appellate courts, while not expressed with emphasis, suggest two mandates imposed upon school boards, to-wit: (1) A negative mandate which prohibits “effective exclusion” of children by reason of race, creed or color. The key word in this mandate is “exclusion.” Such a negative mandate applies with equal force throughout our nation and must be enforced now. (2) An affirmative mandate, apparently applicable thus far only where de jure segregation has existed prior to the first Brown decision, imposed upon school boards to correct, so far as it may be reasonable and feasible, largely segregated schools by providing maximum desegregation under the circumstances confronting the local school board in each area. There can be no doubts with respect to the negative mandate. Many .opinions fail to point out with any degree of significance that a particular case falls within the “exclusion” category. The recent cases of Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (October 29, 1969), and Nesbit v. Statesville City Board of Education, 418 F.2d 1040 (4 Cir., Dec. 2, 1969), speak of children and/or faculty members being “effectively excluded” or “no person is to be excluded.” In Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), and Raney v. Board of Education, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968), it is abundantly clear that there existed no valid distinction between the negative and affirmative mandates. In Green, a case from Virginia, there were only two school buildings in the entire county, both housing grades one through twelve, located in the eastern and western portions of the county, respectively. Buses used overlapping routes to take pupils to and from school. One school was all-Negro; the other was approximately 85% white and, at best, only minimal desegregation existed. Despite the fact that “freedom of choice” was available to all, only a handful of blacks, and no whites, exercised a choice with respect to entering a school all or predominantly occupied by children of a different race. Thus, “freedom of choice” as a plan adopted by the school board “effectively excluded” children desiring to cross racial lines and the dual school system continued. Green and Raney are illustrative of school boards contending that they had desegregated completely and not that desegregation was proceeding at an adequate pace. Indeed, in Raney, the predominantly white school was filled to capacity and the applications of 28 Negroes were denied for this reason. In an interesting review of Green, described as an “easy” case, in an article in Harvard Law Review, Vol. 82:63, p. 111, at p. 114, it is said: “In more difficult cases, where not all the factors point the same way, the Court will have to refine its analysis of the concepts ‘dual system,’ ‘unitary system,’ ‘segregated,’ ‘integrated,’ and ‘racially unidentifiable.’ And it will have to begin facing some of the hard questions involved in implementing Brown', in formulating desegregation plans, what weight is to be given to sound policies of education and school administration; what weight to wishes of southern black nationalists for separation, even where by the lights of the larger community the result will be ‘inferior’ education; what weight to such evidence exists that once the ratio of Negro pupils to whites passes beyond a critical point the educational benefits from integration are reduced or lost altogether? Since Brown, the lower courts have been grappling with these issues largely without guidance from the Supreme Court. In Green the Court missed an important opportunity to provide guidance by re-articulating the reasons for and the very meaning of ‘desegregation.’ ” The City of Norfolk, with its hardcore central city area of a black community, now poses some of the foregoing problems, together with many others. The “hard questions” must now be resolved in this case. A third case decided along with Green and Raney was Monroe v. Board of Commissioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). Factually, Monroe would appear distinguishable from Green and Raney, but a careful reading of the opinion demonstrates that the Supreme Court declared the “system” to be discriminatory and made reference to “a” Negro school. In discussing the “free transfer” available in Monroe, the Supreme Court pointed out that white children were at liberty to transfer out of an all or predominantly Negro school, even though they resided in the geographical area. This is not the transfer provision available in the instant case. Opinions from other appellate courts point to the conclusion that the operation and maintenance of a particular school building, attended only by black children, is not per se constitutionally defective. United States v. Greenwood Municipal Separate School District, 406 F.2d 1086, 1093 (5 Cir., 1969); Goss v. Board of Education, City of Knoxville, Tennessee, 406 F.2d 1183, 1186 (6 Cir., 1969); contra: Adams v. Mathews, 403 F.2d 181 (5 Cir., 1968). The language of Mr. Justice Brennan in Green emphatically states that the duty is to eliminate racial discrimination by “root and branch” but, as heretofore indicated, such an expression is definitely allied with the concept of the negative mandate and, even if not so limited, has been construed as not requiring the abolition of all-Negro and all-white schools under all circumstances. See: Goss, supra. The School Board freely concedes that the burden rests upon it to demonstrate that the school buildings attended only by black children on the one hand, or by white children on the other, are not the result of continued discrimination. We turn then to the affirmative mandate. If such a mandate requires the mixing of racial bodies in each and every school building, irrespective of any local problems confronting the School Board, the answer is obvious. Under such circumstances racial balancing, or some system approximating same, must be ordered, and it would be a waste of time and effort to file plans which may be educationally beneficial to the children. The Civil Rights Division conceded, in argument, that any approach to racial balancing would annually require a constant shuffling and reshuffling of children throughout the school system. It is agreed by all that such a shuffling process is most detrimental to children. Yet, under the plan strenuously urged upon the Court by the Civil Rights Division and the NAACP, elementary school children will probably not attend one school building more than two or three years at the most. Assuming arguendo that the affirmative mandate is applicable only to instances involving states where de jure segregation existed prior to Brown I we do not construe the obligation of this mandate as requiring the performance of the impossible or such actions as are wholly unreasonable, impracticable and inconsistent with sound educational principles. The purpose of education is to teach the children — all children regardless of race. If this interpretation is erroneous, why file plans? Why take into consideration local conditions? Regrettably, some courts have interpreted the abolition of “deliberate speed” and the words “desegregate now" as an indication that the mixing of bodies is of primary importance and sound educational principles must take a back seat. This Court does not so interpret the language of the Supreme Court in this manner. We still believe that, while implementation toward a unitary system must be immediate and time for compliance with the negative mandate has now passed, where a school board presents a reasonable plan grounded upon sound educational principles, there remains room for the adoption of a plan with reasonable prospects for success even though there may remain, for a period of several years, some school buildings which will be occupied only by blacks or by whites. If the foregoing approach to the problem is incorrect, the Supreme Court must properly bear the responsibility if public education collapses. In the face of superior knowledge available as to the ultimate effect of merely “mixing the racial bodies” without regard to the other aspects of education and social class, it cannot be said that the children, irrespective of race, will benefit. If desegregation in public schools is confined to “mixing racial bodies,” we agree with the NAACP in this case and, if an appellate court orders that type of “desegregation” in the public schools of Norfolk, an order will be entered to this effect although it would be impossible of immediate compliance because of the bus-sing problem. And whether the $4,000,-000 capital investment and $800,000 annual operating expense will be forthcoming is indeed problematical, although counsel for the School Board stated in argument that they would make every effort to procure the same, even though it meant sacrificing other aspects of attempted quality education. The difficulties with respect to the so-called central city, including Norfolk, are so numerous and apparent that it hardly requires any discussion. The isolated pocket areas where blacks reside throughout the city are of no consequence and can be, without insurmountable problems, dovetailed into an adequate desegregation plan. But when we approach the hard-core black area, the same difficult questions arise which would confront New York and Los An-geles in their famous ghetto localities if and when these two major cities are required to thoroughly desegregate the schools located in Harlem and Watts. All witnesses and counsel freely concede that compulsory massive cr.oss-bussing is the only means available to break up either the hard core black or white areas where there are no nearby areas occupied by the opposite race. If we are to strive for an ultimate goal of random housing pattern by race, Norfolk requires a massive movement of 94.6% blacks to white communities according to Pettigrew; a situation which is rather typical throughout the larger cities of our nation where statistics reflect that a move of 87% blacks to a white community is required in order to create a random housing pattern by race. The magnitude of the problem is apparent with housing; it is only slightly less a problem with schools. As applied to the facts of this case, and under the testimony adduced from experts in the fields of education, psychology and social sciences, we hold that the governing constitutional principles require good faith desegregation of races in public schools, to an approximate minimum of ten percent where the population justifies this percentage, applied to each individual school wherever the particular school can be desegregated consistent with (1) sound educational principles, (2) the cost factor involved including the time and expense of transportation, and (3) the future planning relating to location of school buildings. On the basis of the best available research, we reject the argument that a minority of white children should be required to attend a predominantly black school where the white children reside beyond the bounds of a proper and legal zone line. We agree that white and black children alike tend to benefit, through achievement or otherwise, wherever the white pupils are in the majority at a particular school. We decline to accept the invitation to require massive compulsory bussing merely to achieve desegregation, especially where the cost and travel time involved is out of proportion with the probable benefits. Nor do we feel that the Constitution commands racial balancing in each school building predicated upon the percentage of white and black children in the several levels of public education; to-wit, elementary, junior high school, and senior high school. We are also ,of the belief that, at least with respect to the first three elementary grades, the neighborhood school concept should be retained for an indefinite period. Having stated, as concisely as possible, the conclusions reached, we turn to the evidence in the case and the collateral issues leading to the ultimate inquiry. In discussing these matters very little reference will be made to the prior history of the Norfolk public school system or its prolonged litigation as the same is fully documented. It is significant to note that the law with respect to desegregation of public schools has changed over a period of years as the judicial decisions have been forthcoming. For example, only eleven years ago, the Supreme Court granted a motion to affirm in Shuttlesworth v. Birmingham Bd. of Education, 358 U.S 101, 79 S.Ct. 221, 3 L. Ed.2d 145 (1958), on the limited ground expressed in the District Court’s opinion, Shuttlesworth v. Birmingham Board of Education, 162 F.Supp. 372, 384 (N.D. Ala., 1958 — three-judge court), upholding a statute requiring certain tests to be administered to Negro pupils seeking admission to designated schools. It was held that the statute was constitutional upon its face. It is certainly doubtful that the same conclusion would be reached at the present time. THE PURPOSE AND PRINCIPLES OF THE SCHOOL BOARD'S OPTIMAL PLAN Since certain modifications were adopted by the School Board for the optimal plan following the hearings on the interim plan, we deem it appropriate to set forth at length the stated purpose and seventeen cardinal principles of the optimal plan. These principles, in the main, are now under attack by the NAACP and Civil Rights Division. The full text is set forth herein and, as footnoted, supply the research data upon which the main controverted principles are based. PURPOSE The Plan is designed to effectuate a constitutionally appropriate unitary school system which will provide equal educational opportunity for all races to the full extent of the capacity of the Norfolk school system. PRINCIPLES The Plan has been evolved to accomplish the stated purposes based upon conclusions arrived at by the School Board and the School Administration, after careful consideration and analysis of the demographic, socio-economic and other circumstances of this school system and adjacent school districts, the results of extensive recent research, and the advice of those well educated and experienced in the field. The more important of these conclusions are set forth below. 1. Desegregation can provide the conditions for an improved educational program for the City as a whole, but, in order to achieve and maintain the benefits of desegregation, the Plan must be soundly designed. 2. Children of all backgrounds tend to do better in schools with a predominant middle class milieu. Such a milieu should be maintained in each school so far as practical. 3. Although there are a significant number of white children in this school system of a low socio-economic class and a significant number of Negro children of a middle class, there is at this time a high statistical correlation in Norfolk between white children and a middle socio-economic level and between Negro children and a lower socio-economic level. In order to maintain a predominant middle class milieu, a school in the Norfolk system must have a clear majority of white children. In most instances, a predominantly Negro school in Norfolk will be of a predominantly disadvantaged socio-economic class. 4. Negroes in predominantly white schools show substantially higher achievement than those in all Negro schools, but Negroes in predominantly Negro schools do no better (if as well) than those in all Negro schools. 5. The achievement of white children in predominantly white schools is no lower than that of white children in all white schools, but the achievement of white children in predominantly white schools is substantially higher than that of white children in predominantly Negro schools. 6. The educational opportunity of Negroes in predominantly white schools is substantially greater than that of Negroes in all Negro or predominantly Negro schools, and the educational opportunity of the white students in predominantly white schools is no less than that of the opportunity of white students in all white schools. A Negro pupil in a predominantly Negro school has no greater educational opportunity than a Negro in an all Negro school, and a white pupil in a predominantly Negro school has less educational opportunity than he would have in an all white or predominantly white school. 7. There is a tendency for the achievement level of children of both races to vary inversely with the percentage Negro in a school, but knowledge of the subject is insufficient at this time to allow a prediction of the critical percentage Negro in a particular school. Such critical percentage Negro varies from school to school, depending primarily upon the socio-economic class of students of both races, but also upon the number, excellence and preparation of faculty; public and pupil attitudes and motivation; the nature of physical facilities; and the character and quality of the program of education offered. 8. It has been clearly established that there will be an improved educational opportunity for Negroes in nearly all combinations of circumstances where the percentage Negro is less than 25%. It also has been clearly established that it is a practical impossibility to provide improved educational opportunity for Negroes or maintain the educational opportunity for whites in a school in which there are more than 50% Negroes, when the Negroes are predominantly of a lower socio-economic class. 9. In order to provide the best educational opportunity for students of both races under the circumstances applicable to the schools of Norfolk, 30% Negro in each school would be optimal at this time. The maximum would be 40% Negro in any school, and a percentage that high should be attempted only in instances in which most of the additional factors affecting the result are favorable. A program of continuing research and appraisal for Norfolk schools should be established on the basis of which a determination of optimal and maximum percentages should be periodically adjusted. 10. Where the educational opportunity of middle class children of either race is substantially decreased by their being placed in the minority in a school enrolling children predominantly of a lower socio-economic class, those able to do so seek educational opportunity elsewhere, with a resultant instability of school enrollment for individual schools and the system as a whole. The maintenance of a substantial middle class enrollment in the school system is essential to the provision for educational opportunity for Norfolk pupils of both races which is equal to the educational opportunity provided others in Virginia. 11. In the Norfolk system at this time, the assignment of a minority of white children to a predominantly Negro school will not foster equal educational opportunity for either race in either the short or long term. 12. Each school in the system should be optimally desegregated to the extent of the number of middle class children available in the system. To this end, there should be no all white schools, except as dictated by practical necessity. Any plan should seek to retain the recognized educational advantages of neighborhood schools at the elementary school level, but all reasonable alternatives should be examined, and any which are practical should be employed to eliminate all white schools. 13. Each child in the system should have at least a substantial number of years of his school career in an optimally desegregated school. Compensatory educational methods should be fully employed with any predominantly Negro school which may result from the limits of the number of available white middle class children. In addition, interschool activities and special curricula should provide some desegregated experience for children in every school. 14. An unstable school system, in which frequent substantial changes are required in pupil and faculty assignment, school and grade organization, and construction programs, necessarily causes erosion of the educational program and is unmanageable administratively. The school system should be stabilized to the extent that the plans for organization of grades, facility construction, the placement of faculty, and assignment of students will not have to be again massively rearranged in the foreseeable future. New methods should be examined and attempted, but broad experimentation with the organization of the school system, which is not based on reliable evidence indicating successful results under circumstances prevailing in this City, should not be undertaken because of the potential destructive effect on the system. 15. The success of an educational program depends in great measure upon teachers who are not only prepared educationally to teach the assigned subjects, but who are also competent to perform under the circumstances in which they are placed. The assignment or reassignment of faculty and principals to accomplish desegregation should be implemented with those who have been adequately prepared. Programs should be conducted to provide adequate preparation of all school personnel. 16. The uncertainties, frustrations and delays attendant to the administration of a school system of more than 50,-000 pupils under judicial supervision is erosive of that system. The responsibility for the control and operation of the Norfolk public schools should be clearly placed with the School Board, consonant with practical assurance of the constitutional exercise of that responsibility. 17. Public confidence in the quality of the educational opportunity offered by a school system is necessary to the maintenance of that quality. Only when the taxpayers and patrons of a school system have confidence in its present and future programs will it receive the financial and personal support which it requires to maintain quality education. The involvement of those concerned from all segments of the community and a full public understanding of the nature and reasons for any plan evolved are important to public confidence. The principal attack upon these seventeen stated principles is directed to paragraphs numbered 2 through 14. There is general agreement as to principles numbered 1, 15, 16 and 17. Reduced to simplicity the objections to principles numbered 2 through 14 lie in the plain fact that, for a number of years at least, certain black children may attend an all or predominantly black school during their earlier years of education. The plan, as designed, does assure that all children, white and black alike, will attend a thoroughly desegregated school for a minimum of three years during their twelve years of public education. Acknowledging that there are cumulative adverse effects on blacks from attendance at a school which is occupied solely or predominantly by children of their own race, the solution of this problem is not readily at hand. Practical difficulties require a balancing of all interests to the end that a sound educational system may be maintained for all children irrespective of race. What is apparent from the principles and plan is that Norfolk, through its able School Board, is endeavoring to attain a -maximum of school desegregation wherever it is consistent with a sound educational system. The olden days of massive resistance are gone forever. The experts testifying as to the principles in behalf of the NAACP and Civil Rights Division were Dr. Gordon Foster, an Associate Professor of Education at the University of Miami and presently serving as Director of the Florida School of Desegregation Consulting Center, and Dr. William F. Brazziel, an outstanding Negro educator who is presently serving as Professor of Higher Education at the University of Connecticut while on leave from Norfolk State College where he served as Director of General Education and, of course, he has some knowledge of the local situation. To a lesser extent with respect to the principles, Dr. Jack L. Larsen, the Professor of Education and Chairman of the Department of Educational Administration at Rhode Island College, also testified at the hearings on the interim plan but, after having an opportunity to study the details of the optimal plan, Dr. Larsen did not testify further. Likewise, to a lesser extent as to the principles of the plan, Dr. Michael J. Stolee was presented as a witness for the Civil Rights Division. At the time of the interim plan hearings, Dr. Stolee was the Director of the Florida School Desegregation Consulting Center but, by the time of the optimal plan sessions, Dr. Stolee had been designated as the Associate Dean of the School of Education at the University of Miami. As Dr. Foster and Dr. Stolee divided their work with respect to this case, Dr. Stolee prepared suggested plans or methods of operation of the Norfolk school system/whereas Dr. Foster devoted his attention to the principles as stated in the plan. Dr. Stolee concedes that he has had no training in the field of social science. The School Board presented, in addition to the testimony of Mr. Lamberth, the Superintendent of Schools, the highly qualified Dr. John C. McLaulin, employed by the School Board as Director of the Department of Educational Research and Planning, together with Dr. James S. Bash, the Director of the University of Virginia Center on School Desegregation and a Professor in the School of Education, and Howard O. Sullins, a program officer for the United States Office of Education, Department of Health, Education and Welfare at Charlottesville, Virginia. Finally, after initial difficulties, the testimony of Dr. Thomas F. Petti-grew, undoubtedly the most outstanding and knowledgeable person in the field of sociology and race relations as related to education, was taken. Weighing this mass of testimony it is apparent that the experts are in agreement on certain fundamental issues, but part company on others — largely due to the practicalities of the existing situation. Certain statements made by the School Board’s experts may be characterized as favorable to the position advanced by the NAACP and Civil Rights Division. Minor concessions tending to support the School Board were forthcoming from the experts presented by the NAACP and Civil Rights Division. Nevertheless, whatever may be the prior history of these experts, it can be said without qualification that they all favor desegregation of public schools. In fact, one of the articles written by Dr. Pettigrew boasts of the fact that he is a “racial in-tegrationist.” The foregoing statements are made simply to demonstrate that there are no “segregationist” views advanced by any witness in this case. Nor are the issues raised herein comparable with any other ease previously decided on the appellate level. What courts are now overlooking is that the primary variable is social class; not race. As Dr. Pettigrew so aptly points out during his cross-examination, if the courts, the Civil Rights Division, and the proponents of desegregation do not awaken to this fact, they are likely to “throw out the baby with the bath water.” Indeed, as Dr. Pettigrew examined the prior testimony he “had a little trouble figuring out the sides without a program.” He states that Dr. Stolee, Dr. Foster, and Dr. Brazziel have “systematically whittled away and attacked everything which demonstrates the efficacy of desegration.” Thus, in effect, he concludes that unless an intelligent approach is made to the problem of desegregation from a social class standpoint — and not solely through the mixing of racial bodies —desegregation will be a complete failure. “Integration,” according to Petti-grew, presupposes desegregation, and the real ultimate benefit is achieved through “integration.” The suggested racial balancing, coupled with mandatory cross-bussing, will accomplish “desegregation” as defined by Dr. Pettigrew, but it will also inevitably mean that the true benefits will never be achieved. We cannot believe that the Supreme Court' in requiring “desegregation,” has merely ordered a mixing of racial bodies without consideration of the social class factor. The crux of the controversy between the experts lies in the theory that children benefit from properly desegregated schools by reason of association with a predominant middle class milieu. We are not now talking about the individual social class of each particular child. It is the social class of the overall group in gross which makes desegregated schools advantageous to all. Race, standing alone, is definitely a secondary factor. It is significant to note that all experts are in substantial agreement that the social class is important, although they differ as to the weight which should be attached to this factor. If the social class of the associated group is, as Dr. Pettigrew states, the most important major criteria in determining the success of desegregation as we now find, it follows that a black child of low socio-economic background and status will probably benefit as much, by achievement or otherwise, if he attends an all-black school of middle class children. The same principle applies to white pupils. Thus, the social class climate is what brings about a heterogeneous school and, to this extent, the school system is able to exercise some measure of control through the use of a ratio of blacks to whites wherever it can be established from a sound educational standpoint. In rebuttal, the experts testifying at the instance of the Civil Rights Division and NAACP argue that the social class of the individual child’s family is the greatest single correlate of achievement This statement is substantiated by the noteworthy Coleman Report. While this may be the acme of perfection, the social class of the individual child’s family is hardly susceptible of control by any school system. It is for this reason that the area-based plan predicated upon controlled environment was adopted by the School Board of the City of Norfolk which will, in the final analysis, benefit the greatest number o.f children, irrespective of race, and thereby bring about a successful plan of desegregation and ultimate “integration” as defined by Dr. Pettigrew. Obviously the social climate approach is what attracted Dr. Pettigrew to testify in this case. He concedes that the plan is “weak” in some respects, especially at the elementary level but, he says, we must be practical in resolving the difficulties presented according to the local situation. As Dr. Pettigrew testified with respect to the Norfolk plan, it is the— “First time I have seen a public school system flatly attempt to explicate principles that would guide their plans based on the best social science data we now have available.” Again, while admitting weaknesses in the plan (not, however, at the senior high school level), he states, with respect to the work of Dr. MeLaulin who had the primary responsibility of drawing the attendance zone lines, the following: “To maximize desegregation, I think that Dr. MeLaulin has pushed that effort to just about the human hilt given the area-based plan.” The foregoing are the words of an admitted “racial integrationist.” All experts agree that there has been no gerrymandering to perpetuate segregation. On the contrary, all experts questioned on the subject state unequivocally that there have been several instances of gerrymandering to effectuate desegregation. In determining the social class climate, it is perhaps true that available research data for Norfolk has not been the best. The pressure of time, now apparently so urgent with the courts, has precluded better data. The experts substantially agree that “income” is not the major factor in ascertaining social class. However, the School Board, confronted with a collapse of negotiations in mid-March 1969, was ordered to prepare and file its optimal plan by June 23, 1969. In the interim period, there were eleven (11) days of hearings requiring the attendance of counsel and the administrative school personnel. The census data from 1960 was, of course, available. Information obtained from this source, as analyzed by Taeuber, a sociologist at the University of Wisconsin, reflects that, in 1960, one-half of white Norfolk was middle class, and only 15% to 18% black Norfolk was in the same category. This compared with a nationwide average of 60% of white America being in the middle class, and 25% of black America falling within this grouping. Undeniably, this percentage for Norfolk has increased among both white and black in the past ten years. The 1970 census will demonstrate the extent of the change. In the main, the School Board relied upon (1) a Neighborhood Analysis, prepared by the City Planning Commission in August 1967, (2) Consumer Profiles for the Norfolk-Portsmouth Metro Area in January 1969, and (3) City Profiles for the Norfolk-Portsmouth Metro Area in April 1969. The social conditions set forth in (1) above specify income, education, unemployment, infant mortality, tuberculosis cases, juvenile offenses, adult offenses, food stamp applications, food stamp recipients, welfare applications, and welfare recipients. This criteria is allocated according to planning districts and it requires no genius to convert a specific school area into the proper planning district. True, some will overlap and it does not give precise figures, but it cannot be said, as urged by the plaintiffs and plaintiff-interven-ors, that the sole basis for such determination is on “income.” Moreover, it is believed that the 1970 census will be comparable with the figures supplied by the Planning Commission, except to the extent that there has been an interim change in housing patterns. With personal knowledge of the particular areas throughout the City of Norfolk, it is a reasonably safe assumption that, analyzed by any method acceptable to the field of social science, the low and middle social class climate area-based plan is reasonably accurate as presented by the School Board. Closely allied with the issue of social class climate and ultimate success of the Board’s plan is the subject of middle class flight. While there are those who refer to this as “white flight,” the experts do not emphasize that term, although there may be more whites than blacks who tend to flee from central cities. Statistically, it is probably next to impossible to determine just how many whites or blacks move out of a central city for the purpose of protecting a middle class education for their children. The middle class Negro is more likely to move to an area outside the hard core black population than is the Negro in the lower socio-economic group. Especially is this true due to the rapidly shifting population in Norfolk where re-segregation has become an increasing problem. Anti-metropolitanism, as it is sometimes called, brings into focus what will happen to Norfolk if racial balancing, coupled with compulsory cross-bussing, is adopted as advocated by the NAACP and Civil Rights Division. The local School Board is endeavoring to deter the middle class flight by promoting a reasonable ratio of whites and blacks throughout the school system and, at the same time, assuring a thoroughly desegregated school system for a minimum of three years throughout the educational process for all pupils, together with every reasonable prospect for long-range successful integration according to Pettigrew. If the middle class elects to move across the city line into the adjacent cities of Virginia Beach and Chesapeake, there will be nothing left in Norfolk which will provide a solid basis for a sound educational system as the lower class, whether white or black, cannot benefit merely by reason of mixing the bodies. We are mindful of the fact that the School Board’s plan may result in a mere experimentation but, if so, it is presently well supported by the best available research and brains ,on the subject. Many of the difficulties confronting courts and litigants have been due to a lack of more specific definition of words. Legal definitions of “desegregation,” “integration,” “system,” “unitary,” “nondiscriminatory,” “racially unidentifiable,” and many other words are woefully lacking. Does the “system” infer that each individual school building must be thoroughly “desegregated” now°t If so, as applied to Norfolk, racial balancing and compulsory cross-bussing constitute the only answer. We do not believe that the Supreme Court has ruled out reasonable experimental plans grounded upon factors which give rise to the belief that such experimentation will lead to successful integration for the city as a whole. On June 2, 1969, the Supreme Court, speaking through Mr. Justice Black in United States v. Montgomery County Bd. of Educ., 395 U.S. 225, 235, 89 S.Ct. 1670, 1675, 23 L.Ed.2d 263 (1969), stated, in part, “(T)his Court also has recognized, in this field the way must always be left open for experimentation.” It is interesting to note that, in Montgomery Board of Education, there is dicta with respect to the subject of racial balancing among the faculty. Apparently the United States conceded in its brief that ra-daily balanced faculties are not “constitutionally or legally required.” However, the Supreme Court did not intimate its position on the subject. It is, of course, a great temptation to any district judge to order racial balancing in each individual school building, as such a requirement would probably remove school desegregation cases from the docket when the computer takes over. Nevertheless, there are at least some district judges who feel that the primary function of the public school system is to furnish the children with the best available education, without regard to race, consistent with the long-range problems presented by the local situation. The proponents of massive compulsory bussing for the purpose of achieving racial balance point to what was accomplished in Berkeley, California. The major difference between Berkeley and Norfolk is that the former occupies nine (9) square miles, whereas Norfolk consists of sixty-one (61) square miles. Berkeley also has a very high level of Negro education among its residents, but the converse is true in Norfolk. As Dr. Pettigrew expressed the situation: “I think it [Berkeley] offers you a very inspiring good data to support the evidence of effectiveness of integration. I don’t think it tells Norfolk about how to work out a plan, unfortunately.” We should perhaps add that Dr. Pet-tigrew is not per se opposed to compulsory bussing if held within reasonably manageable bounds, and conditioned that the mandatory bussing does not “squeeze too hard on the middle class flight and metropolitan problem.” That the massive cross-bussing will definitely put the “squeeze” upon middle class flight, both intercity and intracity, is apparent from the record due to the high percentage of rental units in Norfolk with its large military population. According to the 1960 census data, out of a total of 85,-241 dwelling units there were 43,118 renter-occupied dwelling units. From an intercity standpoint Norfolk is handicapped in that Virginia Beach and Chesapeake have a relatively small percentage of lower social class persons in the immediate area surrounding Norfolk. Portsmouth, separated from Norfolk by the Elizabeth River, has a high percentage of blacks, including many of the lower social class climate from both races, thereby precluding any appreciable middle class flight to that city. The Educational Park complex has its attractive features from an intercity viewpoint as it would not involve cross-bussing, even though it would mean massive bussing. Irrespective of the benefits to be derived from a Metro-Educational Park, it is obvious that such cannot be created when Virginia Beach, Chesapeake, and the Commonwealth of Virginia are not parties to this action and, even if these separate political subdivisions and the state were made parties, serious constitutional questions arise. While the intracity Educational Park complex would perhaps not present too extensive cross-bussing, it remains debatable whether it would substantially relieve the problems in Norfolk. The opportunity for consideration of an in-tracity Educational Park complex is available with the contemplated demolition of two elementary schools, Robert E. Lee and John Marshall, as heretofore mentioned in footnote (23). However, a goodly portion of the central city is hard upon the City of Chesapeake where there remains no prospect of an effective complex without the cooperation of Chesapeake. Moreover, any discussion of an Educational Park complex is in its infancy and has not been the subject of required research. It is argued that the elementary schools should be paired and/or closed in substantial accordance with what is known as Princeton pairing. In rural areas this has brought about a marked degree of desegregation and, where the ratio of white to black does not exceed 60-40, it is deemed successful. In the urban areas where the lower social class exceeds 10%, Dr. Pettigrew refers to pairing and closing as “Band-Aid” methods in that the border between white and black is constantly moving in central cities and any pairing is successful only around the borders of the ghetto. He likens the Norfolk central city area to Chicago, Los Angeles, and New York where, according to Pettigrew, pairing is impossible from the standpoint of successful desegregation. Stated otherwise, the “Band-Aid” would have to be moved to another finger. How long such a system could be effective, bearing in mind the terrific expense involved, is not only problematical but it approaches the ridiculous. Stated otherwise, it is impossible to have all black and white children in optimum desegregated situations on the elementary school level. Much of the argument centers upon the issue as to whether minority white children should be required to attend majority black schools, especially where the white children live beyond the boundary line of a school zone where an all-black school is located. The Civil Rights Division and NAACP contend that token desegregation of whites into black schools is better than none at all but, in general, they insist that the previously all-black school must now constitutionally be made up of at least 25% whites — at all times agreeing, however, that it would be preferable to have a majority white. For the purpose of avoiding repetition, nothing will be discussed at this point with respect to the bussing problem — a matter that is all too obvious. Admittedly data on the achievement of minority white in majority black schools is not exhaustive. It is difficult to study because whites in predominantly Negro schools tend to be the very low social class and status throughout the United States. Since the power of peer culture is that a child learns from other children more than he learns from the teachers or principal, it follows that achievement or regression is not readily ascertainable. The relationship between percentage Negro and the achievement of students is not linear; if it were linear, there would possibly be some improvement by adding white children. There is no sound basis for concluding that, despite the views of Dr. Foster and Dr. Stolee, majority black schools do better than all-black schools. In interpreting the use of variables under the Coleman Report and the more recent Armor Study, Dr. Foster seemed to be of the wholly erroneous impression that a correlation coefficient should be stated in percentages. The test scores from Campostella and Chesterfield Heights elementary schools furnish no basis at all for concluding that mixed racial schools with minority white do as well or better than an all-black school. In fact, Dr. Pettigrew vehemently criticizes the views of experts who rely upon such incomplete data. The Coleman Report states in part “often those Negroes in classes with only a few whites score lower than those in totally segregated classes.” This brief statement is rather inclusive, although Dr. Coleman thereafter testified in Hobson v. Hansen, 269 F.Supp. 401 (D.D.C., 1967), that, “As the racial composition of the school is a higher proportion of white, the Negro students in the school will achieve more than if the racial composition of the school is predominantly Negro; * * * the same result is true for whites as well, but the relationship is only about half as strong. In other words, the achievement of white students in predominantly white schools is then higher than the achievement of white students in predominantly Negro schools, but the difference in their achievement is only about half as great as the case for Negro students.” Stated otherwise, if the white children of the middle class are required to attend a predominant Negro school, those children will not achieve nearly as much as they would if permitted to attend a predominantly white school. The very purpose of the study by Dr. Armor was to update the Coleman data and to verify or refute its accuracy. On the point in question, the Armor Study tends to show a definite breaking point where the black ratio exceeds 30 to 35%, thereby supporting the percentage ratio established by the School Board in this case. It is also interesting to note that, while the white students generally score higher than the black in predominantly white schools, the effect is reversed in schools where there is a definite majority black, in which event the blacks score higher than the whites. Moreover, there is a tendency for blacks to score even higher as the percentage approaches 100. If we follow this reasoning through to its logical conclusion, blacks are better off by attending an all-black school as contrasted with blacks attending a predominantly black school. On the other hand, white children do not achieve as well as the blacks in attending predominantly black schools. It may well be argued that these figures are due to the fact that the white child attending a predominantly black school is of the lower social climate but, if so, we trust that there is just as much interest in the disadvantaged white child as with respect to the disadvantaged Negro child. In sum, Pettigrew assigns five reasons why the ratio of 70% white to 30% Negro, with a maximum of 60% white and 40% Negro, points to long-range success. His testimony is quoted: “(1) That I believe it will minimize the middle class flight, if you want to call it that. I don’t think it excludes it completely, that’s why I use ‘minimize.’ “(2) That I think it gives you a good chance for integration, not just desegregation, therefore maximizes black achievement. “(3) Maximizes or should maximize white achievement. “(4) It should maximize other positive benefits, non-achievement benefits, like college aspirations, occupational aspirations, interracial — better interracial attitudes and behavior on the part of blacks. “(5) The same non-achievement benefits on the part of whites.” With these conclusions of a “racial in-tegrationist,” we turn to the operative effect of the School Board plan and the suggestions or plans submitted by the experts employed by the Civil Rights Division. THE OPERATIVE EFFECT OF THE SCHOOL BOARD PLAN Throughout the able examination of witnesses by counsel for the Civil Rights Division and NAACP, there is constant reference to the percentage of schools which, for the present at least, will remain all or substantially of one race or another. It is suggested by these counsel, and by experts testifying in their behalf, that, under the optimal plan, only 18% of the school children will be attending “desegregated” schools, whereas 82% will remain in “segregated” schools. These figures are presented without adjustment, and they exclude all Negro children attending schools with more than 25% black in attendance. Adjusting these figures based upon the 1968-69 school year, and assuming that the new senior high school will be open by September 1972, we find quite a different picture as evidenced by School Board Exhibit No. 21 and supported by Dr. Pettigrew’s predictions. Assuming ar-guendo that, under the optimal plan, the ratio of white to black is reasonably maintained at not more than a 60-40 basis, it is perhaps appropriate only to consider the percentage Negro who will be attending a desegregated school. If we further assume that a “racially unidentifiable” school is one housing not less than 10% of one race, the figures (predicated upon current enrollment) reveal that the percentage of Negroes attending such schools will be as follows: Elementary schools — 23% Junior high schools — 43% Senior high schools — 100% A schedule attached (Appendix A) states the schools in which children of opposite races are in attendance at varying percentages — 10%, 20%, 25%. Appendix A likewise reveals other interesting figures which tend to show that there now exists considerably more desegregated situations than those represented by counsel for the plaintiffs and plaintiff-inter-venors. Immediately, of course, an attack is made on the acceptance of a 90-10 ratio in classifying a school as “racially unidentifiable” or “desegregated.” Until the Supreme Court speaks on the subject, no one can tell what is correct. The experts all agree that there is some viewpoint supporting the 10% rule. One or two prefer 25%. Dr. Pettigrew testified that there was no consensus of opinion on the 20% as fixed by him; nor on any bottom figure; he has merely selected 20% to be “on the side of safety.” He further states that opinions on the bottom figure are far more varied than the maximum 40%, or possibly 45% under extreme circumstances, of black as an indication of successful integration. Bearing in mind that we are in a field of experimentation, we have tentatively accepted the 10% rule as an initial figure of what constitutes a “racially unidentifiable” school or a “desegregated” school. Even for the 1970-71 school year, without a new senior high school and using the 90-10 rule, it would appear that the elementary schools (unadjusted) would be 23%, the junior high schools (adjusted) would be 33%, and the senior high schools would result in 62% attendance at desegregated schools. Confusing as these figures may be, it is indeed difficult to say that Norfolk is operating a dual school system, unless a unitary system means that each and every school building and classroom must be racially balanced. Pettigrew expressed the opinion that, over a reasonable period of time under the optimal plan, at least 40%, and perhaps as high as 55%, of the black elementary children will be in attendance in desegregated schools; i. e., schools with at least 20% black in attendance. We shall now endeavor to outline some of the problems on each level of education. SENIOR HIGH SCHOOLS Following the remand in Brewer v. School Board of City of Norfolk, Virginia, 397 F.2d 37 (4 Cir., 1968), and the order denying rehearing on October 7, 1968, counsel were convened as described in the opinion on the interim plan, 302 F.Supp. 18, 20-21. It was readily apparent that the new senior high school could not be constructed in the area adjacent to the existing Booker T. Washington High School without moving a high percentage of white children into the hard-core central city. The Board finally selected a 50-acre site on Tidewater Drive near the Forest Lawn Cemetery. The surrounding housing area is largely white at present. The experts and counsel are now substantially in agreement as to the foregoing location. At the time of final argument on December 8, 1969, counsel, at the urging of the court, intimated that an agreed order would be forthcoming, thereby permitting this construction to proceed to the end that it will be ready for occupancy by September 1972. The new senior high school, located at the selected site, will provide 100% desegregation on this level of education, accepting “desegregation” under any definition known to mankind. There are, and will be, five senior high schools in Norfolk. While there is continuing danger of Maury High School becoming increasingly resegregated, the Housing and Redevelopment projects referred to in footnote (23) may tend to alleviate the problem. During the course of the extended hearings on the optimal plan, an attorney for the United Black Federation of Norfolk appeared and sought to present petitions carrying the names of approximately 10,400 citizens expressing a desire to have the new senior high school on the site adjacent to the present Booker T. Washington High School, but requesting that the new school be integrated. Since this group did not seek to intervene, the Court could not consider the petitions. However, at the suggestion of counsel, the petitions were delivered to the Chairman of the School Board and this fact is in the record. There are, as of the current year, 2,275 children in attendance at Booker T. Washington High School. All but seven (7) are black. The argument is advanced that if the new senior high school is constructed as a modern edifice, complete in every respect, white children will seek admission to this new school. Dr. Pettigrew, when questioned about a “magnet” school, testified that there was no such instance in the United States where this had worked, and that it would be “amazing” to predict success in Norfolk. Aside from the fact that there would probably be few, if any, white childern exercising any such option, irrespective of the quality of the school, there is obviously too much difficulty in “tracking” and keeping whites in a high school centered largely in the ghetto area. To desegregate, on a 60-40 basis, a new high school located in that area — and for the same reason the existing Booker T. Washington High School — on an educationally sound basis would require moving 1,358 white children an appreciable distance. This means that 1,358 black children must be cross-bussed to other high schools. This alone should be a sufficient answer to the arguments for now desegregating Booker T. Washington and against relocating the new structure in the same area. What will the 1,358 black children and their parents say about the 917 black children remaining in the new school? Above all, there will be, according to Pettigrew, black resentment over the fact that 1,365 white children have “taken over” a school constructed in a black area, primarily for the benefit of the black children. If an order is not presented in the interim, the order approving the plan will provide that the new senior high school may be constructed at the site selected by the School Board. The Court urges counsel, even though an appeal will undoubtedly be taken, to provide in the order that no appeal is noted as to this proposed construction which has been delayed entirely too long because of the requirement that a federal court must approve site locations for new schools. THE FUTURE OF WASHINGTON HIGH SCHOOL Once replaced, Booker T. Washington remains as a building capable of many uses. By reason of a fire in April 1969, it has now been completely renovated. It is contemplated that this structure may be used as a “special educational facility,” including use as a community and adult education Center following future renovations. Programs will include vocational job entry training and adult basic education opportunities with appropriate health, welfare, and recreational services being maintained. Space will be provided for ancillary services of Model City, Central City and other community action agencies. No fault can be found with the foregoing. However, it is provided that the uses stated above “will be subject to requirements for high school level programs which may take precedence in the event they are needed.” One can readily understand that, in future years, an overflow condition may develop on any level of education and, on a temporary basis at least, there may be justification for use of Booker T. Washington. During the course of the hearings, however, there was some suggestion to the effect that the facility could be maintained for use by those advocating black separatism. Without a controlling decision from the Supreme Court or United States Court of Appeals for the Fourth Circuit, no approval could be given for use of any public building for such purposes. If the Constitution requires desegregation of races in public schools, there is no room to legalize black separatism in this area. This is not a condemnation of black separatism; it is merely a statement that it is, at present, constitutionally impermissible on the public school level. As with respect to Negroes who fought for desegregation of schools, the black separatists will have to pursue the legal channels before any court approval can be obtained. Subject to the comments heretofore made, the contemplated future uses of the present Booker T. Washington High School are approved. JUNIOR HIGH