Scott v. Winston-Salem/Forsyth County Board of Education (317 F. Supp. 453, 1970)

MEMORANDUM AND ORDER

GORDON, District Judge.

The plaintiffs in the complaint filed in the cause allege that the public schools in the Winston-Salem/Forsyth County Administrative Unit are operated on a racially discriminatory basis in that, among others, attendance zones are gerrymandered to promote discrimination, teachers are assigned to schools where the majority of the students are of the teachers’ race, school bus routes are established to perpetuate segregation, school lunch programs are operated on a discriminatory basis both as to quantity and quality, discriminatory practices are engaged in through the hiring of teachers, special schools are established to favor whites, vocational schools are established to favor whites, curricula of the Negro schools are inferior to white, and parking facilities at Negro schools are inferior to white. Succinctly, it might be said that it is contended that in all respects a dual system is being operated. Generally, the prayer of the complaint requests the complete desegregation of the schools and for preliminary and permanent relief.

The action was instituted on October 2, 1968. Following the filing of the complaint, on November 19, 1968, plaintiffs moved to amend the complaint. This motion was allowed. Again on January 13, 1969, the plaintiffs moved to amend the complaint. This motion was denied. Discovery by the parties ensued promptly and several motions, including motions for summary judgment by the defendants other than the Winston-Salem/ Forsyth County Board of Education, and objections were filed.

On December 17, 1969, the plaintiffs filed a motion for preliminary injunction. Prior to the filing of the motion, no request, other than the usual request contained in complaints filed in this type action, was made to the Court to hear the matter regarding the issuance of a preliminary injunction. Faced with a heavy schedule of cases already set for trial, but nevertheless feeling that the hearing of the motion should be given some priority, Court schedules were rearranged and the hearing on the motion began January 9, 1970. At the conclusion of the day on January 9, 1970, the hearing was recessed to begin again January 21, 1970. The hearing was concluded on January 27, 1970. On February 17, 1970, the plaintiff’s motion for preliminary injunction was denied by an order of the Court containing findings of fact and conclusions of law. Since all the evidence presented at the hearing on the matter of the preliminary injunction is germane to the resolution of issues now before the Court, those findings of fact contained therein will be repeated and expounded upon in this memorandum opinion.

The Court and counsel realizing the urgency for consideration of the issues raised, expedited the hearing of the matter on the merits with full cooperation of counsel representing all parties by dovetailing hearing days on rather short notice into already established court calendars. The hearing on the merits was concluded on April 30, 1970, at which time briefing schedules were established. The record of the hearings is voluminous, consisting of 1,334 pages of transcript and 128 exhibits. The hearings on the preliminary injunction motion and merits lasted nine days.

The Court having considered the evidence presented, briefs and arguments of counsel, makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. The Consolidated, System

Prior to 1963 there were two school systems in Forsyth County. The Winston-Salem School Administrative Unit had jurisdiction over all schools within the corporate limits of the City of Winston-Salem. The Forsyth County School Administrative Unit had jurisdiction over all schools in Forsyth County outside the corporate limits of the City of Winston-Salem. Pursuant to a special act of the General Assembly (Chapter 112, 1961 Session Laws) and by vote of the people of Forsyth County, the two systems were consolidated as of July 1, 1963.

2. Geographical and Statistical Data

The Winston-Salem/Forsyth County Board of Education has jurisdiction over and is responsible for the operation of all public schools in Forsyth County, North Carolina. Forsyth County is roughly rectangular in shape, its longest East-West dimension being about 26 miles and its longest North-South dimension being about 20 miles. It comprises 424 square miles. The estimated current population of the County is 235,000, of whom approximately 22.5% are non-white. Winston-Salem, the principal city in Forsyth County, comprises 57.5 square miles; it is located in the south-central part of the County and has an estimated current population of about 152,000. Other communities in Forsyth County include: Kernersville, an incorporated town, population about 4,200, located about ten miles east of Winston-Salem; Walker-town, unincorporated, population about 1,240, located northeast of Winston-Salem ; Rural Hall, unincorporated, population about 1,500, located about 10 miles north of Winston-Salem; Lewis-ville, unincorporated, located northwest of Winston-Salem; and Clemmons, unincorporated, population in excess of 2,-000, located about 10 miles west of Winston-Salem. Most of the black population of the County resides in the northern, eastern, and to some extent, southern portions of the City of Winston-Salem. Less than 10% of the County’s population, outside the City of Winston-Salem, is black.

There are 67 schools in the Winston-Salem/Forsyth County System. Of these, 42 are elementary schools, 15 are junior high schools and 10 are senior high schools. Two of the elementary schools, the Children’s Center and The Children’s Home, are privately owned and operated. The Winston-Salem/Forsyth County School System provides faculty for these two schools. As of December 19, 1969, there were 50,455 students and 2,099 full-time members of the teaching staff in the Winston-Salem/Forsyth County School System. Of these students, 36,521 (72.5%) were white, 13,879 (27.5%) were Negro, 35 were Indian, 13 were Oriental and 7 were Spanish. Of the faculty 1,535 were white, 561 were Negro, 1 Oriental and 2 Spanish.

The following is a chart showing the name and racial make-up of the schools in this System as of December 19, 1969:

During the 1969-1970 school year, of the 67 schools in the system, there are 9 all-black elementary schools, 1 all-black junior high school and 3 all-black senior high schools. There are 5 all-white elementary schools, 2 all-white junior high schools and no all-white senior high schools. In the 49 schools in which there is some degree of racial mix, it runs the gamut from schools with 1 white and the rest black to schools with only 1 black and the rest white. The 49 schools also include those (Skyland, North Elementary, Hanes Junior High and Lowrance) which were formerly all-white and which are now black or predominantly black because of the change in the residential patterns of the neighborhood served by the school.

3. History of Pupil Assignments by the Local Board

Winston-Salem, Charlotte and Greensboro were the first communities in North Carolina to admit a Negro child to a formerly all-white school. This was done in 1957. In that year one child transferred to Reynolds High School. During the years that followed, the number of Negro pupils attending formerly all-white schools as a result of the approval of requests for such transfer were as follows:

1958 4

1959 8

1960 10

1961 18

1962 44

Beginning in 1963 the idea prevailed that desegregated school systems should no longer keep official records of a pupil’s race. As a result the number of pupils by race is not available for 1963 and 1964. Since 1965 HEW has required such information, and the information has been obtained from the principal of each school in order to comply with their requirement; the HEW reports, which are the only racial records available since 1965, show that the number of black students attending predominantly white schools in years subsequent to 1964 were:

1965 509

1966 1246

1967 1486

1968 2155

1969 2016

Blacks also attend schools which are predominantly black, but not all black. For example, in the current school year (1969-70), there are 3,160 blacks attending such schools, in which the total number of white students is 193.

As can be seen, the number of children attending desegregated schools has steadily increased through the years. After the passage of the Civil Rights Act of 1964, the school system consistently adhered to guidelines set up by the Department of Health, Education and Welfare. HEW representatives visited the school system and approved the system’s desegregation plans and attendance area maps on each occasion until litigation ensued when, by reason of the school system’s involvement in litigation, the submission of plans was not required.

The integration achieved during the years 1965-1969 resulted primarily from three things:

A. Elimination of the only remaining overlapping attendance zone and of the only remaining overlapping bus route. (Carver School had been built to accommodate all Negro children (grades 1 through 12) in Forsyth County who resided outside Winston-Salem. Prior to 1965 those who desired to do so were permitted to continue at Carver with school bus transportation being provided for them. By 1965 Carver School was given specific, non-overlapping attendance zone lines and school bus transportation from outside the Carver zone was discontinued.)

B. Establishment of a geographic attendance zone plan, with free choice of transfer. Under this plan, which was approved by HEW, each child was assigned to the school in the zone in which he lived. This would normally be the school nearest where he lived. Then every child was given the privilege of transferring to any other school in the system, so long as there was room to accommodate him. No transportation was afforded. The capacity of each school was predetermined. Under the regulations, if there were more applicants than could be accommodated, priority was given on the basis of the proximity of the child’s residence to the school. And any child who could not be accommodated at the school of his first choice, could go to some other school, of his own choosing, where there was room available. Plaintiffs do not contend that any child has been denied the privilege of transferring to a school of his choice; in fact certain of the plaintiffs have done so.

C. Closing of Paisley High in 1968 and redrawing attendance boundary lines so as to assign its pupils to North Forsyth and Reynolds (predominantly white) and to Atkins High (black) with the beginning of the 1968-69 school year.

Furthermore, in March, 1968, the voters of the Winston-Salem/Forsyth County Administrative Unit voted 24.8 million dollars in bonds for school construction and equipment. Initial projects proposed for the use of this money would have resulted in approximately 1,475 Negro students being reassigned to predominantly white schools. Pending litigation against the School Board caused a loss of marketability of these bonds, and consequently, these plans have had to be delayed. An offer by the School Board to the plaintiffs to spend the proceeds only after Court approval was rejected.

4. The Predominantly Black Schools

The geographic attendance zone for Diggs Elementary School (609 black and 0 white) is bordered on the west by the attendance zone for Latham Elementary School (7 black and 419 white); on the south by a section of the South Park Elementary zone (4 black and 536 white); and on the east by a small section of the Forest Park Elementary zone (20 black and 647 white). These lines as they are drawn are not arbitrary. The boundary line dividing Diggs and Latham is Main Street (Highway 52), a divided four lane thoroughfare which is heavily traveled and constitutes a hazardous area, particularly during the morning rush hours. The southern and eastern boundaries of Diggs, separating it from South Park and Forest Park, run through an industrial area which is approximately three blocks wide. Generally, Diggs serves a housing project which is located close to the school. This is a thiekly populated, small zone and access from without the zone would be difficult without the construction of structures to overcome the obstructions.

Both Carver Crest (477 black and 0 white) and Kimberly Park (778 black and 0 white) are bordered to the west by the Brunson zone (135 black and 544 white). The western boundary of Carver Crest runs along the property of the Methodist Children’s Home; this property is mostly undeveloped and has no roads passing through it. The western boundary of Kimberly Park runs along the northern sector of the Brunson district. This particular area within the Brunson district supplies Brunson with a very small part of its pupil population. It contains a golf course and a business district, as well as a sparsely inhabited residential area in which there are few children. Also contained in this northern sector is the acreage of the Children’s Home.

Mebane Elementary (504 black and 0 white) is bordered on the east and part of the south by Forest Park (20 black and 647 white). The southern portion is marked by a railway. The eastern border has been established along Stadium Drive (Highway 311 and 109) which is a major access route into the city. This is a four lane, undivided thoroughfare.

Forest Park also borders the southern portion of the Skyland Elementary distinct (483 black and 0 white). This boundary is drawn along the Southern Railway lines and on both sides of the railroad there is light to medium industry. Skyland is bordered on the east by the Petree Elementary district (49 black and 281 white). This line follows roughly the old city limits (Skyland was a part of the city system and Petree was a part of the county system until consolidation in 1963). The area through which the line runs is not well developed. The Petree district has been redrawn under the School Board’s plan which will be dealt with later in this opinion. Sky-land, as has been noted previously, was at one time an all-white school.

Lowrance Elementary (726 black and 12 white) is bordered on the north by the Mineral Springs (48 black and 833 white), Oak Summit (30 black and 657 white), and Ibraham (0 black and 361 white) districts. As was noted previously, the Lowrance district has changed generally from white to black in the last four years. The district lines have not been changed in that time. Since these two districts are modified by the School Board’s proposed Pupil Assignment Plan for 1970-71, this general area will be dealt with under the Court’s discussion of that plan.

The same will be done with the Carver district, which has been extensively revamped under the Board’s plan for 1970-1971.

The Brown Elementary zone (663 black and 0 white) borders on the southwest portion with that of Brunson Elementary (135 black and 544 white). This line is drawn through the heart of the Winston-Salem business district and there are few, if any, students living in this area.

North Elementary (689 black and 0 white) is surrounded on all sides by the zones of predominantly or all-black schools, with the exception of a small part of the southwest border which is contiguous with the Brunson zone. The neighborhoods are black on both sides of this line.

Fairview Elementary (693 black and 0 white) and Fourteenth Street Elementary (583 black and 0 white) are totally surrounded by other predominantly black or all-black schools.

Anderson Junior-Senior High (943 black and 0 white — approximately 400 senior high students) has previously encompassed and been fed by the Mebane Elementary and Diggs Elementary zones. Under the Board’s proposed pupil assignment plan for 1970-1971, the senior high school would be discontinued and the structure would be used for a junior high school only. The junior high school zone would be left intact and the projected enrollment figures are 541 black and 0 white.

Paisley Junior High School (552 black and 0 white) is presently being fed by the Kimberly Park and Carver Crest schools. It borders the Wiley Junior High zone (183 black and 666 white) which includes Brunson Elementary. For a description of the boundary lines see the discussion under the elementary schools.

Hanes Junior High School (500 black and 13 white) is being fed by Lowrance and North elementary schools. Until around 1964 or 1965, this was a predominately white school. The shift to predominately black was a gradual one over a three year period.

Kennedy Junior High School (1042 black and 1 white) is fed by Brown, Fairview, Fourteenth Street, and Sky-land elementary schools. Kennedy is located close to Brown Elementary and is completely surrounded by all black neighborhoods.

The Carver Junior High zone has been extensively modified under the Board’s proposed plan for 1970-1971 and will be discussed at a later point in the opinion.

There were during the 1969-1970 school year three predominately black senior high schools. Two of these, Carver and Anderson, also contained junior high school plants within the same building. Under the Board’s proposed plan for 1970-1971, the senior high school operations in both these schools would be discontinued, thus leaving only one all-black senior high school in the system. That would be Atkins (1135 black and 0 white) which is being fed totally by Kennedy Junior High. Atkins, as Kennedy, is located in a heavily populated, all-black section of the city.

All sixteen of these predominately or all-black schools in operation during the 1969-1970 school year were compacted in an area 3yz miles at its widest point and 5 miles at its longest point. This area encompasses densely populated, black neighborhoods.

5. The Predominately White Schools

The vast majority of the remaining city schools, located in the west and southern portions of Winston-Salem are predominately white. The attendance zone located in the northwestern central part of the city encompassed by Brunson Elementary, Wiley Junior High and Reynolds Senior High is an exception. In Brunson, partly due to geographical zoning, but in large part due to the exercise of freedom of transfer, the black percentage of the student body is 24.-82%. Wiley Junior High School has 22.62% black student body; and Reynolds High School has 14.89% black student body. Another exception is Easton Elementary which is located in the southern part of the city. It has a percentage of 43.32% black contained in its student body. This is due to a predominately black community which lives nearby the school site. Petree Elementary, which is adjacent to Skyland in the eastern part of the city, has 14.85% of its student body black. In the northwestern portion of the county, serving an area which is rural and agriculturally based, Old Richmond Elementary has 11.71% blacks in its student body. Located in the northern central part of the county, in a district which includes North Elementary, Lowrance Elementary and part of Kimberly Park Elementary, North High School has a black student enrollment which comprises 17.27% of the total student body.

All the remaining predominately white schools in the system have less than 10% blacks in their respective student bodies. A complete redrawing of the geographical attendance zones would not enhance the situation substantially because of the peculiar situation involved. This system encompasses highly urbanized and industrialized areas, suburban areas, and rural and completely undeveloped areas. The vast majority of the black students in the system live generally in the northern and eastern parts of the city. Without substantial cross-bussing, there would be no way in which to cause any great degree of racial mixing.

6. The Proposed Plans

A. The Larsen Plan

Plaintiff’s expert witness, Dr. Jack L. Larsen, a professor at Rhode Island College, first testified during the hearings on the matter of a preliminary injunction. At that time he presented an approach to racial mixing which, he thought, the School Board could use. If this approach had been implemented, more than one-fourth of the schools in the system would have remained with the same attendance zones or pupil assignments and some all-black and all-white schools would remain. He concluded, at that time, that, considering the size of the County and the residential patterns, his plan would accomplish a unitary school system; that it would not be practicable to transport pupils the distances that would be required in order to mix the races in all schools.

Dr. Larsen returned to testify during the hearing on the merits. With more time and with the use of additional data furnished him, he had developed a comprehensive plan which would result in a racial mix in all the schools in the system.

The proposal submitted to the Court by Dr. Larsen (see Appendix A) calls, generally, for the division of this system’s elementary schools into three categories, i. e., the “inner city” elementary schools, the “middle rim” elementary schools, and the “outer rim” elementary schools. Dr. Larsen applies the satellite concept in his treatment of the “inner city” and “outer rim” schools. The usual situation would be one “inner city” school linked up with two “outer rim” schools. Then, instead of the present concept of an elementary school containing grades one through six, the two “outer rim” schools would service grades one through four, each drawing off students in those grades from the “inner city” school. The “inner city” school would serve all students from the three schools who were in grades five through six. Since the “inner city” schools are predominately black, this would necessitate the transportation of young black children for two-thirds of their elementary education for distances of from five to seventeen miles. A rough average of the distances to be traveled under this particular phase of the plan would be nine miles, with approximately 6,025 elementary students requiring additional transportation under the satellite concept.

Dr. Larsen suggests the use of express buses with adult drivers to make the trip between the schools involved. This would necessitate the students going to the school now serving their geographical zone and there being picked up by an express bus to be motored to the satellite school. In the county areas, this would mean that an individual student would have to be picked up by a local school bus, driven by a student driver and taken to a nearby school, there to await the departure of the express bus. To alleviate the time problem, Dr. Larsen stated that the opening and dismissal hours should be staggered in the “outer rim” and “inner city” schools.

The fifteen remaining elementary schools are classified by Dr. Larsen as the “middle rim” schools. Each school within this group would house grades one through six. These schools would be divided into four groups and the existing attendance zone lines separating the schools within the same group would be abolished. Pupil assignment would be made based upon the following criteria: (1) nearness to the school, and (2) the desired racial composition of the particular school. Admittedly, this segment of the plan could not be effectively carried out without the use of pupil locator maps, which are not presently available. Due to the lack of these maps, Dr. Larsen could not be too definite about the actual distribution of students to the individual schools in these areas. But in order to achieve an acceptable degree of mixing, according to his definitions, more than likely there would have to be a substantial degree of bussing within this “middle rim” group.

Attendance on the secondary level could then be adjusted by the judicious use of feeder systems from the modified elementary schools. Here also pupil locator maps would be necessary.

Through the use of this plan, Dr. Larsen would hope to attain, as close as possible, an average of 27.5% black in every student body in the system.

For an example of how the “inner city” — “outer rim” system would work, take Group #4. This is the Rural Hall-Oak Summit-Carver Crest combination. Assuming staggered starting times of 8:30 for the “outer rim” schools and 9:00 for the “inner city” schools, the black first through fourth graders would have to arrive at the Carver Crest School at a time adequate to enable them to travel either the 11 miles to Rural Hall or the 6 miles to Oak Summit. Then 200 would board buses to go to Rural Hall and 118 would embark on their way to Oak Summit. The 159 fifth and sixth graders, living now not more than one-half a mile from Carver Crest would arrive about an hour later to begin their school day. Meanwhile, 306 fifth and sixth graders would be gathering at Oak Summit and another 307 would be waiting at Rural Hall to catch their express buses into Carver Crest. Since a large number of the students attending County schools have to utilize transportation furnished by the school system in order to travel to the school in their district, this would necessitate two bus rides for these children, i. e., one from their home either to Rural Hall or Oak Summit, and then another one to Carver Crest. In the afternoon, the black students would be express-bussed back to Carver Crest when their day ended at 2:30. At 3:00 the white fifth and sixth grades attending Carver Crest would leave to return to their respective outlying schools. Here another problem arises. There would have to be transportation afforded these students so that they could get from Oak Summit or Rural Hall back to their homes. This would mean that the School Board would either have to invest in even more buses or let those white first through fourth graders who finished school at 2:30 wait until the express buses .returned at 3:30 or later before they could be transported home.

The intricacies of this plan demonstrate the extreme difficulties involved in any attempt to attain an approximate racial mix in every school in the system. The Court finds that the undue burden which would result from the implementation of the Larsen plan, not only upon the School Board, but vastly more important, upon the students, both black and white, within this system, far outweighs any benefits which might be derived therefrom.

Furthermore, another aspect of this plan might be noted. In Beckett v. School Board of the City of Norfolk, 308 F.Supp. 1274 (E.D.Va.1969), Judge Hoffman discussed the testimony of Dr. Thomas F. Pettigrew whom the Court categorized as “undoubtedly the most outstanding and knowledgeable person in the field of sociology and race relations as related to education.” Dr. Pettigrew testified that although he was a “racial integrationist,” it was his opinion that the greatest single correlate of achievement in the public schools was the social class of the students attending the individual schools. He considered race, standing alone, a secondary factor. This Court takes cognizance of the fact that the particular race of a student should not be the sole factor in making a determination in this case. And for this reason also the Court does not accept the plan tendered by the plaintiffs. Additional considerations are necessary in order to view the situation in its totality and proceed on a course which has as its goal quality education for all the students of this system.

B. The School Board Plan for 1970-1971

The school board presented a Pupil Assignment Plan for 1970-1971 to the Court on February 16, 1970. [See Appendix B], It retained the freedom of choice provisions which had been used in previous school years under the geographical attendance zone system, with the following modifications in transfer policies and in attendance zones. Priority would be give to those students who desired to transfer from a school in which their race was in a majority to a school in which their race would be in the minority, in other words, majority to minority requests. These requests would be honoi’ed until a school had reached an attendance level of 10% over its normal rated capacity. The normal rated capacities had been reevaluated and adjusted upward in this plan. Also included under this plan for majority to minority transfers was the offer of free school bus transportation for students so desiring who lived one and one-half miles or more from the school which they planned to attend. The majority to minority requests would be given first priority until June 1, 1970, at which time, and up to August 28, 1970, requests would be considered on a priority system based on the date of receipt of the request without regard to race. No transportation would be furnished to these students. Also no request for transfer to a school would be granted if that school had already reached its normal rated capacity.

Also, under the board’s plan, Anderson, an all-black combination junior and senior high school, would be converted into a junior high school only and the approximately 400 senior high school students would be assigned to Parkland, a nearby, predominately white, senior high school.

The major change effected by the board’s plan was the conversion of Carver, a predominately black school serving the levels of kindergarten through grade 12, into a junior high school. Two, contiguous, predominately white elementary attendance zones were redrawn to absorb the lower grades at Carver. These were the Mineral Springs, Oak Summit and Ibraham district and the Petree district. In turn, the junior high school attendance zones were redrawn with the result that Cax-ver Junior High School would have a majority white student body. The 212 senior high school students who would have normally gone to Carver were reassigned to two predominately white senior high schools, North and East, whose attendance zones were adjacent to the old Carver zone.

Moreover, because of the changes in the Carver district, another elementary attendance zone which had contained three elementary schools (Ibraham, Mineral Springs and Oak Summit) was redistricted into three distinct zones, one of which, Mineral Springs, now includes a section of a predominately black attendance zone (Lowrance). This means that those Lowrance students would attend Mineral Springs Junior High rather than Hanes Junior High.

Table III reflects those approximate changes in the make-up of student bodies which would result if the School Board plan were to be implemented.

7. Faculty Desegregation

On January 14, 1970, the Winston-Salem/Forsyth County Board of Education, by resolution, and without Court order, initiated a plan to further desegregate the faculty in the school system effective January 23, 1970, in accordance with the guideline established in Nesbit v. Statesville City Board of Education, 4 Cir., 418 F.2d 1040 (1969). The plan went into effect on January 26, 1970.

Approximately 2,100 teachers are employed in the system, and approximately 26 per cent of the total are black teachers. Now the proportion of Negro teachers, with two exceptions brought about by appeals to the School Board, in each school approximates the proportion of black teachers to white teachers in the whole system. Beginning with 1964, the Board first assigned teachers across racial lines, and this practice has increased each year as follows:

1964 8

1965 12

1966 107

1967 124

1968 199

1969 296

The reassignment plan for teachers, put into effect on January 26, 1970, involved a transfer of approximately 425 teachers. Nevertheless, the number of teachers teaching across racial lines by assignment of the Board had increased steadily over some years and by 1969 was approximately 15 per cent, i. e., 296 out of 2,100.

In order to effect a plan of faculty desegregation, a committee of 17 people from within the system was formed. Various exceptions were made and any teacher falling in one of these exceptions could not be transferred. Those teachers and other personnel that would be excluded were:

(a) anyone who would be 65 by July 1, 1971;

(b) principals and assistant principals approved by the school board;

(c) special education teachers and those who worked with the retarded and handicapped;

(d) the one teacher in the experimental program;

(e) those already teaching across racial lines;

(f) continuing education instructors;

(g) those teachers involved at Central Rehabilitation;

(h) music teachers and librarians who would be placed in a separate pool;

(i) the principals could select 20% of their original faculty to remain, so that a nucleus could be retained at each school.

For a complete tabulation of the results of the faculty desegregation plan for the year 1970 see Appendix C. For the purposes of this tabulation, Central Rehabilitation and the Children’s Center were eliminated because there were no teachers who could be matched with others in order to make an exchange— these teachers have students who are physically handicapped. There are four teachers who are provided by the system. The Board has no control over the actual operation of the facility. Central School is primarily for handicapped students at the junior and senior high school level.

At the elementary level the ratio of black to white faculty is 29.98% black to 70.02% white. The range within which the black faculty ratio spans under the reassignment plan is 16.67% at the Children’s Home to 38.46% at North Elementary. [At the Children’s Home the plan had been originally to assign a third black teacher, but there was a resignation.]

At the junior and senior high schools, [excluding the combination schools, i. e., Anderson (7-12), Carver (7-12) and Mount Tabor (9-12)] the span for the black faculty is 19.94% at Dalton to 33.-33% at Kennedy. The range at the senior high school level is 14.49% at East to 31.25% at Atkins.

In the combination schools of Anderson and Carver, the adjustment of ratios was made difficult because of the small size of the student bodies and the wider range of subjects which an individual on the faculty \Vould have to teach. Therefore, under the plan, the Anderson faculty was 40% black and the Carver faculty was 45.83% black.

8. Transportation

Generally speaking, no transportation is provided at the present time for pupils attending schools in the City of Winston-Salem. Transportation is provided for pupils who attend schools outside the 1957 corporate limits of the City of Winston-Salem and who live 1 1/2 miles or more from school, but no transportation is provided for pupils attending schools inside the 1957 corporate limits of the City. The school system has 216 buses, and transports about 18,104 pupils each day at an annual cost of approximately $370,000.00. $110,000.00 is paid by the Local Board, the remainder by the State Board. All bus routes are designed to serve the pupils in the school attendance area in which the bus is assigned. Pupils are assigned to buses without regard to race or color. Buses do not pick up pupils outside the attendance boundaries of the school served by the bus. However, if a pupil transfers to a school outside his own attendance area he may catch a school bus at any regular pick-up point within the attendance area of the school to which he transfers. A pupil who resides less than iy2 miles from school may also catch the bus at any regular pick-up point.

The case of Sparrow v. Gill, 304 F. Supp. 86 (M.D.N.C.1969), decided by a three-judge court, will require the State of North Carolina to eliminate the 1957 corporate boundary limitation and to either provide transportation only outside municipalities or to all students who live more than a specified distance from school, without regard to corporate boundaries. The injunction ordered as a result of this opinion will be in effect at the beginning of the 1970-1971 school year. It is apparent fi'om information gained through the news media that funds will be available for intra-city transportation during the 1970-1971 school year.

9. Curriculum

The curriculum in the elementary and junior high schools is basically the same. The curriculum in the senior high schools is based upon the demand for the various courses which are offered each year in the spring. Some of the courses given in the predominately white high schools are not given in the predominately Negro schools and vice versa. Every student who expresses a desire to take any course not offered in his particular high school is contacted personally and arrangements are made to allow him to take that course. This may be done by having him transferred to a school offering the course or by allowing him to go to that school for the specific purpose of taking the course. There is no evidence that by increasing the number of Negroes attending school with whites, the opportunity of any student to take any course would be enhanced.

The greatest variation in curriculum occurs in those schools in low-income areas which receive additional funds through Title I of the Elementary and Secondary Education Act for a variety of special reading and other compensatory education programs. These programs are concentrated in 17 schools, 15 of which are predominately or all black. The current year’s budget for Title I programs is $863,419.00, which when divided among the 2,817 eligible pupils results in a per pupil expenditure of $306.00. Title I programs are directed at eligible students, rather than eligible schools, but they can be more effectively administered when the eligible students are concentrated in a relatively small number of schools. Further, some of the programs have residual benefits for pupils who are not themselves eligible. In addition, the School Board operates or proposes to implement several other programs that will be concentrated in the predominately Negro schools. At least one of these programs, the Model Cities Education Program, with a budget of $696,704.00 and a per pupil expenditure of $898.00 is directed at eligible schools rather than eligible pupils and would be administered in the North Elementary School no matter who attended it.

Pupils receiving the benefit of teaching aids and materials and of concerted compensatory or remedial programs under Title I, ESEA, are receiving educational benefits not currently available throughout the system.

10. Athletics and other Activities

All school-connected services, facilities, athletics, activities and programs are open to each student on a desegregated basis. A student assigned to a new school is not subject to any disqualification or waiting period for participation in activities and programs, including athletics.

Interscholastic athletic competition is open to all schools without discrimination. The predominately white schools engage in athletic competition with the predominately or all-black schools.

11. The Racial Make-Up of Neighborhoods and Public Housing

It has not been shown that the School Board’s plan of geographic zoning was established in any way by reference to the race of the inhabitants of the various zones. When the Board decided to discontinue Paisley Senior High School, new zone lines were deliberately drawn to increase integration at Reynolds and North High Schools. Four schools have changed in their racial makeup since they were opened, three of these since 1960. These four are Sky-land, Lowrance, North Elementary and Hanes Junior High School. These schools were formerly all-white and are now black or predominately black because of change in residential make-up of the neighborhood. However, unless people are required to live in “racial balance,” the homogeneous quality of zones will be constantly changing. The population shifts show conclusively that black citizens have been able to acquire residences in those areas inhabited by white citizens, limited only by their economic ability and desire to do so. In early days, ordinances were adopted to restrict the areas in which Negroes could reside, but the ordinances have not been enforced, nor have they had any apparent effect upon the movement of Negroes into other areas. The factors affecting the movement or lack of movement by Negroes have not been legal in nature, but rather, sociological and economic. As early as 1914, the Supreme Court of North Carolina in State v. Darnell, 166 N.C. 300, 81 S.E. 338 (1914), a case involving the City of Winston, held such an ordinance unconstitutional. Another attempt at racially oriented zoning was made in 1930, but this also was struck down by the North Carolina Supreme Court in 1940. Clinard v. City of Winston-Salem, 217 N.C. 119, 6 S.E.2d 867. There is no evidence as to whether or not either ordinance was ever enforced, but, regardless of that, none of the area zoned for whites in the 1912 ordinance is occupied by whites today, and much of the area zoned for whites in the 1930 ordinance is now occupied by blacks. Further, the urban area of Winston and of the Winston-Salem of those days was but a fraction of the 57.5 square miles which comprise the City today. Plaintiffs’ evidence showed, and the Court finds, that substantial population shifts occurred between 1960 and 1969, clearly demonstrating that blacks have been able to acquire places of residence in areas in which whites have traditionally lived in Winston-Salem.

William H. Andrews, Director of Community Services for the local Redevelopment Commission, and a member of the black race, testified that the Commission followed a strictly non-discriminatory policy in locating places of residence for persons displaced by urban redevelopment and had done so since 1961 when the local Commission was organized; that blacks have not been denied access to any area by reason of race; that the Commission receives real estate listings throughout Winston-Salem and has assisted over 1500 families, all black, to relocate wherever they wished.

A number of public housing or redevelopment projects have been completed in Winston-Salem in the last several years, underwritten with federal funds for those in low income brackets. Among such projects are: Happy Hill Gardens, Kimberly Park Terrace, Piedmont Park and Cleveland Avenue Homes. In these four projects are 1,538 units, rentable to all races. These projects are located in now predominately Negro neighborhoods in response to the demand for housing there and are occupied predominately by those of the Negro race. In resettling displaced Negro families, practically all such families requested officials of the housing authority to seek homes for them in the same locality from which they were displaced. The School Board has no control as to the location or to the occupancy of these federally subsidized projects. Thus the federal government acts to meet a housing need in a community without regard to “housing balance,” and multiplying many times the difficulty for the School Board to accomplish a “balance.”

12. Operation, Direction and Control of the Winston-Salem/Forsyth County School System

In addition to the Winston-Salem/Forsyth County Board of Education, the plaintiffs also named as defendants the Board of County Commissioners of Forsyth County, the North Carolina State Board of Education, and Dr. Charles F. Carroll, State Superintendent of Public Instruction. [Dr. Craig Phillips succeeded Dr. Carroll as Superintendent and under Rule 25(d) (1) of the Federal Rules of Civil Procedure was automatically substituted as a party defendant.]

The evidence shows that both the Forsyth Board of County Commissioners and the State of North Carolina appropriate funds based on a budget prepared by the local School Board. These appropriations are made on a statistical and nondiscriminatory basis. The local School Board directs, controls and supervises the school system and is so vested with such power and authority by Chapter 115 of the General Statutes of North Carolina.

The evidence in this ease is totally devoid of proof that the schools in this school system are administered and controlled by other than the Winston-Salem/Forsyth County Board of Education. Even if by inference it could be deducted that there is some control, then there is no showing of discrimination by either the Forsyth County Board of Commissioners, the State Board of Education or by the State Superintendent of Public Instruction.

The Court finds as a fact that whatever relief the plaintiff may be entitled to pursue can be sought just as expeditiously, and whatever remedies the plaintiffs may be entitled to receive can be enacted just as effectively through their suit against the local School Board. The local Board is the focal point in the operation of this school system.

DISCUSSION

The Board must maintain the ratio of black to white faculty members of each school in approximately the same ratio as the ratio throughout the system. Nesbit v. Statesville Board of Education, 4 Cir., 418 F.2d 1040 (1969). Though there are numerous specific allegations of discrimination in practically all facets of the operation of the schools, basically the issues arising from the evidence and for the Court to decide are the following:

As provided under the Pupil Assignment Plan of the Board for the school year 1970-1971: (1) has the Board used all reasonable means to integrate the schools in their jurisdiction, and (2) has the Board taken adequate measures to assure that no pupil is excluded from any school on the basis of race?

It is concluded that Swann, et al. v. Charlotte-Mecklenburg Board of Education, et al., 4 Cir., 431 F.2d 138 (decided May 26, 1970) dictates that these are specific issues that must be resolved as to those school plans involving large black residential areas where the Board contends that all schools cannot be integrated by using reasonable means.

It is no longer a matter of dispute that school boards have a duty to convert to a unitary school system in which racial discrimination is eliminated “root and branch.” Green v. School Board of New Kent County, 391 U.S. 430, 437, 88 S.Ct. 1689, 20 L.Ed. 2d 716 (1968). Then more recently, in Alexander v. Holmes County Board of Education, 396 U.S. 19, 20, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969), a unitary school system was defined as one “within which no person is to be effectively excluded from any school because of race or color.” After Alexander, in Northcross v. Board of Education of Memphis, 397 U.S. 232, 90 S.Ct. 891, 25 L.Ed.2d 246 (1970), the Chief Justice in a separate but concurring opinion recognized that the definition of a unitary system set forth in prior cases leaves open some practical problems such as, among others, “to what extent transportation may or must be provided to achieve the ends sought by prior holdings of the Court.”

Green established that all facets of a school system, six in number, must be desegregated, i. e., student bodies, faculty, staff, transportation, extracurricular activities and facilities. The evidence demonstrates, and the Court so finds, that the Winston-Salem/Forsyth County Board of Education is operating this system in compliance with five of the six divisions of school operation, leaving only the question of student composition.

While it is not conceded by the plaintiffs that the Board has always acted in “good faith,” it is significant that:

(1) In 1957, the Winston-Salem Board of Education (before the merger of the County and City systems in 1963) starting with Reynolds High School, one of the outstanding high schools in this State, started a program of desegregation. In the 1969-1970 school year, Reynolds pupil population consisted of 255 blacks and 1456 whites.

(2) Negroes consistently served on the respective Boards prior to the merger of the two systems and on the Winston-Salem/ Forsyth County Board since the merger.

(3) The number of children attending integrated schools has steadily increased through the years.

(4) HEW consistently and without exception approved the plan of operation of the system until litigation ensued when, by reason of the litigation, the submission of plans was not required.

(5) After the decision in Nesbit, the Board moved voluntarily to integrate the faculty in the ratio of black to white as there spelled out. Prior thereto, there was substantial faculty integration.

(6) The Board initiated and supported a bond election resulting in 24.8 million dollars being voted in March, 1968, for bonds for school construction and equipment. As is done in most cases, and wisely so, where large sums of money are voted, definite and specific plans for the expenditure of the entire 24.8 million dollars were not made. This makes sense when large sums are voted requiring much time for planning and execution of the plans. Such sums seldom can be prudently spent at once and are best utilized in segments. Initial projects proposed for the money would have resulted in increased integration in the schools. The bonds are not now marketable by reason of the litigation and none have been sold. When the issues in this litigation, and in Allen (formerly Atkins) v. North Carolina State Board of Education, et al. (M.D.N.C. #C-72-WS-68) can be resolved, the Board plans to build two high schools with part of the proceeds from these bonds, one in the northeast quadrant of the administrative unit and the other in the southeast quadrant. . Atkins High School, a school now serving all-black students could then be closed.

(7) The Board has sought and received advice and help from various study groups and experts in devising reasonable procedures and plans to desegregate the schools and to further the total educational program.

(8) The Board has diligently sought and received funds from available sources to establish and promote special education programs. Most of the funds received have been spent in the predominately black schools.

(9) The Board closed Paisley Senior High School and reassigned the pupils to increase racial mixing.

(10) It has gerrymandered zone lines to promote desegregation.

(11) It operates its athletics program on an integrated basis.

Upon the Board rests the burden to demonstrate that the school buildings attended only by black children and only by white children are not the result of discrimination and meet the reasonableness test. Undoubtedly, the Board has made a determined effort to overcome the many problems concerned with the desegregation of the schools. The question is has it done enough. Given adequate buses and personnel, the schools certainly could be put in “racial balance.” While the evidence does not show how many students must be bussed to implement the Larsen plan, a study of the exhibits leaves no doubt that massive bussing would be required if the plan were adopted. It is the conclusion of the Court that constitutional principles do not require the extreme measures necessary to effect a “racial balance” in all the schools in this system required by the Larsen plan or such other plan as will accomplish a racial balance.

One can easily discern that neither the children nor parents of either race object to the mixing of the races, but there is fervent objection to wholesale bussing by both races, black and white, children and parents. Such groundless usurpation of time and expenditure of school funds is unwarranted and difficult of explanation. This is not to intimate that popular objections can dictate the requirements of the Constitution.

Under the pupil assignment plan for 1970-71, students are assigned on the basis of geographic attendance zones with free transfer but to promote further integration, it is provided that

(1) priority be given to requests for transfer from a school in which the pupil’s race is in the majority to a school where the pupil’s race is in the minority;

(2) majority to minority requests are to be honored even though such results in overcrowding, up to 10 per cent above the normal rated capacity of the school; and

(3) free school bus transportation is available to pupils who make majority to minority transfers if they live one and one-half miles or more from the school to which they transfer.

Upon consideration of the Board’s freedom of transfer policy, it is concluded that while the above provisions tend to promote integration, the continuation of the policy of permitting any child to transfer may be expected to encourage resegregation. The Board’s policy should be altered so that a pupil who is a member of a minority race in the geographic attendance zone of that pupil’s residence shall be assigned to the school in the geographic attendance zone of his residence and shall not be allowed to transfer to a school in a zone where he would be in a majority racial enrollment. There should be an exception to this rule in special education programs and in special individual hardship eases.

The schools in the subject school system were built on the then acceptable premise of locating the schools where the children were located. It is clear that the neighborhood concept cannot be approved if residence in a neighborhood is denied to black pupils on the ground of color. Brewer v. School Board of City of Norfolk, 4 Cir., 397 F.2d 37, 42 (1968), but on the other hand, it is equally clear that now residence cannot be denied in any neighborhood because of race or color. Closely allied with the neighborhood school concept is geographical zoning, as provided in this system. Geographical zoning is an approved method for the assignment of pupils, but such may not serve as a guise to foster racial segregation.

The Board strenuously contends that there has been no gerrymandering of the zone boundaries, and that the attendance zones are drawn based on nonracial criteria except where efforts were made to increase integration. On the other hand, the plaintiffs contend that the attendance zones are drawn to foster racial segregation. The Court finds no evidence to support the contention of the plaintiffs. Instead, it appears that the boundaries of the zones are drawn so that the pupils attend the school nearest their residence, recognizing natural boundaries, barriers and obstacles that might endanger the children, such as heavily traveled streets. Nevertheless, as will be later pointed out, there are two areas in the school system which the Court concludes will not meet the “reasonableness test” established in Swann, et al. v. Charlotte-Mecklenburg Board of Education, et al., supra.

While the record is not replete with proof that there has been private discrimination, the Court fairly must accept as a fact that earlier there has been some private discrimination in the sale and purchase of property located within the school system. There is evidence that more than twenty years ago ordinances existed in the City of Winston-Salem defining areas where black and white could live. However, these ordinances have long since been declared unconstitutional and have never been really enforced, certainly not in the last two decades. The evidence is that several neighborhoods in the City of Winston-Salem have changed from all-white or predominately so to predominately black, to-wit, the Bon Air area, the area surrounding the Old City Hospital, and an area in northeast Winston-Salem. An area known as Morningside Manor, located in the southeastern part of the City of Winston-Salem, developed within the last fifteen years, more or less, is inhabited by both blacks and whites. Areas surrounding North Elementary School and Hanes Junior High School have changed from predominately white to predominately black. Within the last three weeks, a feature story appeared in the local daily paper showing photographs of Negro families living in the western and northwestern sections of the City.

The reasonable conclusion to be drawn from the evidence is that even though in times there has been some discrimination in the sale and rental of property, the concentration of the Negro population in the northeastern quadrant of the City has been caused by economic factors and the desire of blacks to live in the areas where they do live rather than in white or predominately white areas. This conclusion is confirmed by the fact that in resettling displaced blacks as a result of public housing projects that without exception the blacks asked to be resettled in the same area they lived, that is, in black or predominately black areas even though other areas were open. The concentration of blacks cannot be fairly attributed to public and private discrimination, and it is concluded that the housing patterns are not the result of such discrimination. In any event, where de jure segregation has been eliminated and de facto segregation remains, there surely must come a time when the stigma of de jure segregation is removed, certainly so in this situation, particularly in those areas once populated by whites and now all-black or predominately black.

In a school system where so many black pupils attend school with white pupils, where in each school black and white teachers work hand in hand, and where athletes, black and white, make up the teams in the majority of the schools, it is difficult to believe that a Negro child seeing this, as he must, would believe that a dual system of schools is being operated.

The plethora of decisions in the area of school integration indicates the difficulty in determining what constitutes an effective disestablishment of a dual school system. The formulation of definite rules and guidelines is difficult, if not virtually impossible. The task facing the nation, not merely the South, is to-respond and continue to respond to the Brown decision in the light of the circumstances in each case. The Board in the subject case has shown a consistent approach toward a unitary system. Its actions have not been haphazard and belated, responding only after judicial and administrative coercion. While good faith cannot be a substitute for effective desegregation, good faith is a vital element in properly evaluating local judgment in devising compliance plans. Orderliness brings stability and stability promotes the educational process, the education of children being the polar star of any properly run school system.

The plaintiffs cite Green, among other cases, as authority for their position. The fact situation here is vastly different. There were only two schools in New Kent County, one white and one black. Buses met or passed each other en route to school, carrying either all black pupils or all white. Dual bus routes were the rule. The residences were mixed with no concentration of black citizens in any particular area. The distinction between the system in New Kent County and the system here is obvious and needs no elaboration.

The decision of this Circuit in Swann v. Charlotte-Mecklenburg Board of Education, et al., supra, applies “the test of reasonableness” and must be followed in arriving at a decision in this case. Though as set forth in the findings of fact herein, there are. natural boundaries which tend to support the zones provided for Diggs Elementary, Kimberly Park Elementary and Cook Elementary (Carver Crest), it is the opinion of the Court that by redrawing the zone lines, pairing, clustering, or using other methods available to the Board, that a reasonable integration could be accomplished in each of these schools. Under the proposed plan of the Board for these schools for the 1970-1971 school year, each of the aforementioned schools remains with an all-black enrollment. Practical difficulties cannot alter constitutional requirements, and it is concluded that by reasonable means, considering the proximity of these schools to adjoining white areas, white enrollment in each of the three schools can be accomplished. The problems involved in doing so are not in any manner comparable to the problems involved in changing the racial composition of schools such as Brown, Fourteenth Street, Mebane and others. It is recognized that in order to accomplish an integrated student body at Diggs, Kimberly Park and Cook there wil