Full opinion text
OPINION AND ORDER FOX, Chief Judge. When matters of great public and constitutional significance come here for resolution, this court assumes an extra duty of care in explaining the reasons for its decision. As always, the court states the factual basis and the legal standards on which its conclusion rests so that the appellate court will know the legal grounds for this court’s decision. Equally important, however, this court assumes also an affirmative obligation to attempt to educate the public concerning the basic principles underlying our constitutional democracy and the practical application of these principles in our public affairs. Since the present school desegregation case is of such importance to the people of Kalamazoo and the State of Michigan, this court has gone to great lengths to detail the facts and explain the basic constitutional principles which led the court to its conclusion. Plaintiffs, the National Association for the Advancement of Colored People and the parents of children attending the public schools of the Kalamazoo, Michigan School District, bring this action on behalf of themselves and their children and all others similarly situated. Their complaint charges that the defendants, the Kalamazoo Board of Education, the Michigan State Board of Education, and the State Superintendent of Public Instruction, have implemented, developed, maintained, and tolerated public education policies of pupil attendance, staff assignment and facility maintenance which serve to deny plaintiffs equal protection of state law, in violation of the Fourteenth Amendment to the United States Constitution. This court has previously considered and ruled upon the issue of jurisdiction, and, following a full evidentiary hearing, granted plaintiffs’ motion for a preliminary injunction. Oliver v. Kalamazoo Board of Education, 346 F.Supp. 766 (D.C.1971), aff’d, 448 F.2d 635 (6th Cir. 1971). This cause has likewise been found to be a proper Rule 23 class action by way of written opinions both at the time of the preliminary injunction and during trial. The facts immediately preceding the instigation of suit are summarized in some detail in the court’s August 25, 1971 opinion, supra. Following the extensive study of the recognized problems posed by racial isolation in its schools, the Kalamazoo Board of Education adopted, on May 7, 1971, a modified student attendance plan effectively designed to desegregate all elementary schools throughout the district. This decision was preceded by similar action earlier in 1971 with respect to the junior and senior high schools. The resolutions involved called for desegregation of all Kalamazoo schools, commencing in September of 1971. The new attendance policy was immediately controversial. The campaign preceding the regular spring school board election of June 14 saw extensive popular interest and heated debate concerning the newly adjusted attendance zones. As a result of the election, two vacancies on the board, previously held by individuals who had supported the desegregation effort, were filled by persons strongly opposed to the May 7 action. Subsequently on July 6, 1971, six days after the new members assumed their offices, the board voted to reinstate the traditional attendance boundaries as they existed before May 7. At the same time, the newly composed board pressed for and, on July 9, secured the resignation of the district’s superintendent, Dr. John Cochran, who still had .two years remaining on a three-year employment contract. Plaintiffs filed suit.in this court on August 12, 1971. Initially, they requested and obtained a temporary restraining order to prevent the implementation of the July 6 board resolution pending a hearing to test the resolution’s constitutionality. After a hearing on August 24 and 25, 1971, the court issued a preliminary injunction declaring the July 6 resolution unconstitutional and void, and ordering the defendants to implement the May 7 plan as scheduled, pending a full trial on the merits of the plaintiffs’ complaint. This injunction was subsequently modified on October 7, 1971, to restrain the Kalamazoo Board from dismissing all nontenured teachers. On February 28, 1973, following vast effort in discovery and trial preparation by all parties and the court, trial began. At this time, the Denver case was before the United States Supreme Court, and no decision has yet been handed down. Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). In the prevailing uncertainty, in an abundance of caution, and by agreement of the parties, the court decided as a procedural matter that the parties would present proofs in the usual order. The plaintiffs presented their entire case; the defendants submitted their entire case; and the plaintiffs then offered x-ebuttal. The burden of going forward on an issue was not procedurally shifted to the other side as a result of a particular line of inquiry. It was agreed that the then existing requirements of Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), would be met within the framework of this procedure. This course was taken with the complete understanding that each party would be given a full opportunity to present every conceivable theory of law and all relevant evidence within the disputed areas. Thus, each party was given the full opportunity to present its case without particular procedural complications. Although it noted objections from each side to the introduction of certain evidence and to the mode or line of particular questions, the court usually reserved ruling and was most liberal in allowing the presentation of evidence and argumentative analysis. The anticipated Keyes decision, whatever it was, could not possibly require a new round of evidentiary hearings; each pax’ty was given the fullest opportunity for hearing consistent with the demands of judicial economy, and the court assured itself of the benefit of all views concerning the complex issues in the case. Six weeks of trial produced more than four thousand pages of testimony and nearly two thousand exhibits. More than one hundred written pages of factual stipulations are included in the record. I. The complaint in this case alleges a constitutional violation involving an inequity or inequality in public education deliberately created, maintained, and perpetuated by the State. Initially, the court must detei’mine whether a condition of educational inequity has existed in Kalamazoo. This inquiry, in turn, is launched with recognition of the uncontroverted threshold proposition that, defined in terms of disproportionate racial concentration, regardless of cause, the Kalamazoo School District histoi’ieally, and especially in recent times, has been racially segregated at all levels of the school system and at a significant number of schools. Reflecting a pattern which had evolved steadily since before 1940, the school racial census figures for 1959 reveal that several elementary schools were x-acially identifiable. Roosevelt was 23.3% Black; Nox’th Westnedge 22.1%; Harding 13.8%; Edison 13.4%. Lincoln was a combined elementary and junior high, with 62.2% of the students being Black. Of all the students in the district, only 7.5% wex*e Black at that time. The more complete school racial census figux’es for 1969 indicate that the historical trend toward racially identifiable schools had continued and even accelerated in the decade of the 1960’s. Of the 29 regular elementary schools, 5 contained 92.3% of all Black elementary children. In a system in which 16.1% of the elementary children were Black, Lincoln school was 95.6% Black; North-glade 87.2% Black; Woodward 53.8% Black; Roosevelt 38.8% Black; and Edison 17.1% Black. With the exception of McKinley and West Main, which were 8.8% and 7.4% Black, respectively, all of the remaining elementary schools in the Kalamazoo district contained no more than 5% Black children. The 1969 statistics further reveal that 14 of these schools educated less than 5 Black students each, while six, Fairview, Greenwood, Milwood, Oakwood, Parkwood and Peter Pan, held no Black pupils. In 1969, Kalamazoo had 5 junior high schools. Of the total junior high student population, 14.7% was Black. Two junior highs, Milwood and Oakwood, contained a combined total of 27 Black students. Only 1.7% of the students attending each of these schools was Black. This left 95.5% of Kalamazoo’s Black junior high pupils to attend South, Hillside and Northeastern in proportions of 26.2%, 24.6% and 13.9%, respectively. At the senior high level, one of the district’s two schools enrolled virtually all of the Black senior high school students. The 1969 figure^ show that 93% of these Black students attended Central High School, making that school 19.7% Black, while the remainder attended Loy Norrix High School, making that school 1.-6% Black. Responsible state and Kalamazoo authorities regarded Kalamazoo public schools as segregated in 1969. The Michigan Civil Rights Commission’s “Report and Recommendations into the Status of Race Relations in the City of Kalamazoo,” published in 1969, stated, “Schools in Kalamazoo are generally segregated,” and cited the supporting data. Even more important, the Kalamazoo citizens’ Committee on Integration, which had been appointed by the President of the Board of Education, recited the attendance figures for elementary, junior high, and senior high schools for September, 1968, and concluded that the figures illustrated “the serious extent to which racial segregation exists in the Kalamazoo school district.” The Committee went on to recommend a program for the integration of the public schools at all levels. This recommendation became the basis for the discussions leading to the May 7 plan. The hostile reaction of many in Kalamazoo to desegregation efforts is evidence that these people, too, regarded Kalamazoo schools as segregated. In light of the Supreme Court’s admonition to consider “the community and administration attitudes toward the school” in determining whether schools are segregated, Keyes, supra, 413 U.S. at 196, 93 S.Ct. at 2691, this court regards the evidence of the opinion of the people of Kalamazoo as of special significance. Thus, it is beyond question that the Kalamazoo school district was, in fact, racially segregated. The court finds as a matter of demonstrable fact and established law that this condition of segregation resulted in inequitable and unequal educational opportunities for Black and White students. Educational inequity is a necessary consequence of racial separation of the schools. The reasons which explain this fact are complex, being intricately rooted in the tortured history of race relations of this nation. According to Dr. Robert L. Green, eminently qualified at trial as an expert witness in the field of educational psychology and on the effects of segregation on Black and White students, the Black experience has been unique in American history. No other racial or ethnic minority was systematically enslaved by the White majority. Rather than having suffered the temporary discomfort and annoyance of social ostracism common to first-generation European ethnic groups, Blacks for hundreds of years were subjected to legally and socially institutionalized economic, spiritual, psychological, social and educational deprivation. It is appropriate to note Gunnar Myrdal’s observation on slavery in his classic, An American Dilemma, in his chapter on “Inequality of Justice Under slavery the Negro was owned, bought, and sold as property; he was worked, housed, fed, and prevented from doing what he wished if it was contrary to the interests of his master. In general, the Negro slave had no “rights” which his owner was bound to respect. Even if in legal theory the slave was given the status of a person under the law as well as the status of property, it was the latter viewpoint which, in practice, became the determining one. In the very relationship between master and slave it was inherent that — without recourse to courts — force and bodily punishment and, under certain circumstances, even the killing of the slave was allowed. “ . . . all slaveholders are under the shield of a perpetual license to murder,” exclaimed Hinton R. Helper in his unsparing onslaught on the plantation class and the slavery institution. Thomas Jefferson saw clearly the moral danger of the slavery institution: The whole commerce between master and slave is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submissions on the other. Our children see this, and learn to imitate it. The man must be a prodigy who can retain his manners and morals undepraved by such circumstances. And with what execration should the statesman be loaded, who, permitting one half the citizens to trample on the rights of the other, transforming those into despots, and these into enemies, destroys the morals of one part, and the amor patriae of the other. [Can] the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of Godl That they are not to be violated but with His wrath? Indeed, I tremble for my country when I reflect that God is just; that His justice cannot sleep forever.” (Emphasis supplied.) Unfortunately, White attitudes originally attendant to the institution of slavery persisted after the adoption of the Thirteenth Amendment. Although legal slavery died, Americans created, during the four decades after the Civil War, a new legal and social pattern of discrimination based upon race. Many of these forms of institutionalized repression have persisted to the present, with the result that Black Americans' are often denied the equality to which they are entitled in our constitutional democratic republic. Inextricably intertwined with the dominating inescapable heritage of slavery and all its attendant dehumanizing ramifications, every aspect of the human condition of many Black people in America today is almost irremediably repressed. These continuing inhuman conditions of uncivilized servitude and inferior status have become known as vestiges of slavery. The effects of this historical status of subservience and formalized inferiority continue to be pervasive. Past barriers to personal fulfillment and attainment cannot reasonably be minimized in assessing current impediments to equal opportunity. In the context of past officially sanctioned and present subtly insidious and invidious private and public racial discrimination against Black people as a class, a school environment which for whatever reason involves marked, disproportionate racial concentration inherently generates acute consciousness of race. As situated in a segregated surrounding, this inflated consciousness, studies described at trial have shown, triggers artificial, unrealistic personal reactions based on misconceived but, in view of historical predicates, understandable individual perceptions of the significance of racial differences. Although disproportionate racial concentration of Black children in the schools might not have adverse consequences in all times and places, it certainly does in the context of the present forms of social organization, which are conditioned by legacy of slavery. One of the adverse effects of racial segregation is in the area of individual achievement. According to studies made by Dr. Green and others, segregated Black children tend to infer that they are isolated from the White majority because of their race, and, drawing on their observations of the deprivations experienced by Black adults, they also tend to infer ■ that their own potential is limited because of their race. It is not surprising that Black children have evidenced reduced self-esteem in a segregated environment and concomitant diminished motivation to succeed. The culturally-induced lack of self-esteem and diminished motivation in turn operate to measurably reduce achievement. ■ Thus, in Kalamazoo, where many Black students attend disproportionately Black schools, Black students have fallen as many as four grades behind their White counterparts by the time they leave school. Furthermore, the Citizens’ Committee on Integration, popularly referred to as the Committee on Racial Balance, reported in 1969 that identifiably Black schools ranked at the bottom of the system in terms of academic achievement. During the trial, there was much conflicting testimony concerning the incidental question of whether a September 1972 administration of a Metropolitan Achievement Test in Kalamazoo did or did not establish that Blacks enter school in Kalamazoo at or around the national norm in the first grade. Mr. Robert J. Huyser, Director of the State Education Assessment program, and Dr. William Coats, Kalamazoo’s Superintendent of Schools, strongly disagreed on this question. Dr. Coats has both theoretical knowledge and great practical experience in the sometimes esoteric subject of educational testing, and also has a close personal acquaintance with the Kalamazoo situation. Mr. Huyser’s responses on cross-examination suggest that he did not properly interpret the data. The court thus finds that Dr. Coats’ testimony was the more reliable, and that Black children enter Kalamazoo schools at a very competitive level. Individual growth in the educational system occurs not only in the area of achievement, the acquisition of cognitive skills, but also in the areas of social and psychological development. Segregation is perhaps more detrimental to the Black student’s social and psychological development than to his achievement level. Finding himself isolated to a significant degree from the bulk of the White population, witnessing the disparate superiority of the status of White adults over Black adults in many circumstances, and perhaps further observing a pronounced underrepresentation of Blacks in positions of leadership in his school, where this is the case, the Black child may become reluctant to assert himself in the presence of Whites and unduly pessimistic concerning his ability to interact or compete successfully with Whites of his own generation. Teacher reaction to segregated educational circumstances frequently operates to the disadvantage of students. Dubbed by some researchers as a kind of “self-fulfilling prophecy,” the impact on Black students of teacher expectations based on race has been demonstrated by several studies. Affected by racial stereotypes as well as by actual patterns of disparate Black-White performance levels in the general society, teachers may tend to “teach down” to Black children, expecting and therefore eliciting low levels of performance. • As Dr. Green further testified, racially segregated schools usually tend to be perceived as “good” or “bad” depending solely on whether they are identifiably White or Black, respectively. Such community perceptions, held by Blacks as well as Whites, contributes to the negative, repressive atmosphere surrounding a segregated school and inhibiting social, psychological, and cognitive development by Black students. The negative impact of racially segregated schools is not confined exclusively to Black students. White children may also react to racial isolation in ways harmful to themselves. White pupils are apt to form an irrational attitude of inherent superiority and are apt to develop an unrealistic concept of homogeneous society in which certain values enjoy universal acceptance. Similarly, because of their cultural isolation,- segregated White children tend to lose sight of those fundamental values of our constitutional system which, while respecting individual differences, favor free access and wide social mobility to all persons regardless of race, creed, or national origin, and which thereby promote a healthy interchange among persons of-different backgrounds. The state of mind fostered by racial and cultural isolation heightens racial conflicts and divisiveness in the country and thus adversely affects the domestic tranquility the Constitution was designed to promote. White students who have been educated in segregated public schools are thus ill-prepared to deal with the pluralistic society which actually exists in the adult world beyond the classroom. In part because of segregated schools, as Charles E. Silberman has written: “[T]he public schools are failing dismally in what has always been regarded as one of their primary tasks — in Horace Mann’s phrase, to be ‘the great equalizer of the conditions of men,’ facilitating the movement of the poor and disadvantaged into the mainstream of American economic and social life. Far from being ‘the great equalizer,’ the schools help perpetuate the differences in conditions, or at the very least, do little to reduce them. If the United States is to become a truly just and humane society, the schools will have to do an incomparably better job than they are now doing of educating youngsters from minority-group and lower-class homes.” (Emphasis supplied.) The subject of race in America and the consequences of racial segregation in the schools might be explored at much greater length. However, it clearly appears from the record in this case, summarized above, that in the context of modern America, segregated education is detrimental to both Black and White students, creating, especially for Black students, psychological and social difficulties which have a substantial adverse impact on overall individual development. Segregated education plainly denies equal educational opportunity. The findings made by the court in this case parallel those made by the United States Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) [Brown I]. In addressing the precise issue of the effect of racial separation on grade and high school students, the Supreme Court in Brown quoted with approval language from the District Court as follows: “ ‘Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial [ly] integrated school system.’” 347 U.S. at 494, 74 S.Ct. at 691. (Emphasis supplied.) Although much may be said about the fact that Brown involved obvious and conspicuous state action separating Blacks and Whites by statute, with' respect to the simple issue of whether racial separation fundamentally poses a situation of inequity, Brown was and is unequivocal. “Separate educational facilities are inherently unequal.” 347 U.S. at 495, 74 S.Ct. at 692. II. The Fourteenth Amendment of the United States Constitution declares, “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” The law is clear that official action at any hierarchial level which denies the plaintiffs equal protection of the laws is unconstitutional. Ex parte Virginia, 100 U.S. 339, 346-347, 25 L.Ed. 676 (1880). It is established “under the Constitution and laws of Michigan that the public school system is a State function and that local school ’districts are instrumentalities of the State created for administrative convenience.” Members of local school boards as well as members of the State Board of Education and the Superintendent of Public Instruction are State officers, agents of the State in every official respect. Before entering upon the duties of their respective offices, all are required by the Michigan Constitution of 1963, Art. II, Sec. 1, to take and subscribe to the following oath or affirmation: “I do solemnly swear (or affirm) that I will support the Constitution of the United States and the constitution of this state, and that I will faithfully discharge the duties of the office of . according to the best of my ability.” Each officer thus undertakes a personal and official responsibility to abide by the Constitution of the United States and of Michigan. The principal issue in this case is whether the defendant State officers have denied the plaintiffs equal protection of the laws. For the purposes of this ease, the court assumes that the plaintiffs must establish that the defendants are guilty of de jure segregation of the Kalamazoo public schools. The Fifth Circuit, which has a vast experience with school desegregation cases, recently rejected “the anodyne dichotomy of classical de , facto and de jure segregation.” Cisneros v. Corpus Christi Independent School District, 467 F.2d 142, 148 (1972). That court held that a finding of unlawful segregation would be supported by two distinct factual determinations. “First, a denial of. equal educational opportunity must be found to exist, defined as racial or ethnic segregation. Secondly, this segregation must be the result of state action.” While the specific quantity of state afetion and the severity of the segregation necessary to sustain a constitutional violation was left to be dealt with on a case by case basis, the court noted that, as a general rule, it “need only find a real and significant relationship, in terms of cause and effect, between state action and the denial of educational opportunity occasioned by the racial and ethnic separation of public school students.” Id., at pp. 150-151. • However, the Supreme Court, in Keyes, supra, assumed for the purposes of that case that a finding of de jure segregation was required to support a finding of a constitutional violation. This court follows the Supreme Court for the purposes of the present case, and, like the Supreme Court, leaves for further adjudication in other cases the question of whether something other than de jure segregation constitutes a violation of the Fourteenth Amendment. The Kalamazoo board adopted a reasonably comprehensive desegregation plan on May 7, 1971, and then, after an election, rescinded the plan on July 6, 1971. While these events and their importance are explored in more detail later, it is pertinent to inquire here as to the legal standards for determining whether the July 6 rescission was itself a significant de jure act of segregation. In Denver, the school board adopted three resolutions, 1520, 1524 and 1531, to desegregate schools in the Park Hill area, and then subsequently rescinded them. While the trial court enjoined the rescission of these resolutions as to most of the schools after a finding that these schools had been intentionally segregated by the Denver school board, the court also permanently enjoined the rescission of the plan as to two schools, East High and Cole Junior High, which had not been previously segregated. The court found that the original plan would operate to prevent East High from becoming segregated and to improve educational opportunities for Black students at Cole, and held that the frustration of these objectives by a rescission of the plan was in itself unconstitutional. Keyes v. School District No. 1, 313 F.Supp. 61, 67 (D.Colo.1970). The decree was approved by the Tenth Circuit on appeal, although the appellate court did not reach the question of the rescission. 445 F.2d 990, 999, 1007 (1971). As to this portion of the Tenth Circuit’s action in the Denver case, the Supreme Court denied certiorari. 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548. However, it is especially significant that the Supreme Court noted with implied approval that the trial court had found that the rescission of t.he desegregation plan as to Cole and East was itself an intentionally segregative act. Id. at 199, n. 10, 93 S.Ct. at 2693. The Sixth Circuit has addressed the issue of the validity of a nullification of a desegregation plan in Bradley v. Milliken, 433 F.2d 897 (1970). Relying in part on the trial court’s decision in Keyes, supra, the Sixth Circuit broadly and emphatically declared: “State action in any form, whether by statute, act of the executive department of a State or local government, or otherwise, will not be permitted to impede, delay or frustrate proceedings to protect the rights guaranteed to members of all races under the Fourteenth Amendment.” Id. at 902. The court went on to strike down as unconstitutional a legislative attempt to nullify a plan of the Detroit school board to desegregate its high schools. Since the Fourteenth Amendment plainly reaches all state action, and since the Sixth Circuit relied in part on Keyes, supra, which did not involve an attempted legislative nullification, it appears that the Bradley doctrine must extend to actions of state agencies such as local school boards. Thus, on the strength of Keyes, supra, and Bradley, supra, it appears that the Kalamazoo board’s attempted nullification of the May 7 plan is itself a de jure segregative act and a constitutional violation entitling the plaintiffs to a remedy in this court, if the May 7 plan was a significant and bona fide attempt by the school board to implement the Fourteenth Amendment in Kalamazoo schools. This factual question, and others related to the adoption and rescission of the desegregation plan, are discussed further below. However, as in Keyes, supra, so in this ease, in an abundance of caution, neither the court nor the parties have been satisfied to litigate only the issue of the rescission of the May 7 plan. Rather, the plaintiffs have argued at length that the defendant state and local authorities were legally responsible under the Fourteenth Amendment for the segregated conditions which have existed in Kalamazoo, and that therefore, the Kalamazoo board was constitutionally required to adopt a substantial desegregation plan on May 7, 1971. The defendants have vigorously denied that they were responsible for the segregated conditions found to exist in Kalamazoo, and have insisted that the May 7 plan was not constitutionally required. As a first step toward resolving this issue, the court has had to ascertain the legal standards to be applied to determine whether the defendants have been guilty of de jure segregation before May 7/ 1971. Although not as fully refined as the comparatively ancient common law torts, the major legal elements and conditioning factors of the constitutional' tort of de jure segregation are reasonably clear. Under the Keyes theorem, in addition to showing that segregated schools exist, plaintiffs should establish (1) that the state to a significant degree caused or maintained these segregated conditions, and (2) that the state intentionally, i. e., purposefully, created or maintained them. Experience since Brown I, supra, has revealed that circumstantial factors of space, time, and quantity may affect causation and intention, and thus may affect the finding of liability and the extent of the remedy. Keyes, supra. Spacial factors are matters of geography and demography in a school district which may limit the impact of a school board’s actions. Time is also an important, though sometimes elusive factor. While each school desegregation case requires an extensive probing of the historical development of a school district, the state, and the nation, the ultimate focus is the present situation and remedy, if any, which is presently required. Finally, matters of quantity and degree of space, time, causation and intention certainly affect the finding of liability. Before moving to an examination of the central factual issues, it is necessary to discuss further these major elements and conditioning factors as they relate specifically to the case before the court. Under Keyes, in an intentional case, to be guilty of a constitutional violation, the state and local authorities must have in fact caused or maintained the segregated conditions which are complained of. Under this theory, it is a complete defense that the state and local authorities have not at all caused or maintained these conditions. Similarly, the state will not be held legally responsible if it has only occasionally committed segregative acts and these acts are of trivial importance and bear no significant relation to the modern situation. Rather, the standard must be that the state and local agencies to a substantial degree contributed to the creation or maintenance of segregated schooling in Kalamazoo. In a tort case, it would be proper to instruct the jury on the issue of proximate cause as follows: “An injury or damage is proximately caused by an act or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.” Under this theory, the issue of causation also involves the conditioning special factors discussed by the Supreme Court in Keyes, supra. Denver had two areas of minority group’ concentration and segregated schools, the Park Hill section and the core city area. Lower courts had found that the school authorities had intentionally segregated Park Hill, and had ordered desegregation of that section. The Supreme Court did not question the correctness of this ruling, but explored its significance with respect to the core city and other Denver schools. Among other things, the Supreme Court suggested that Park Hill might be a “separate, identifiable and unrelated section of the school district,” and remanded for further findings on this issue, Keyes, supra, 413 U.S. at 205, 214, 93 S.Ct. 2696, 2700. If Park Hill was found to be separate, the range of available remedies would apparently be limited, even if the core city schools were found on remand to be intentionally segregated. Id. at 214, 93 S.Ct. at 2700. On the basis of its examination of maps, verbal testimony and census and other demographic data, this court finds that Kalamazoo, for the purposes of this case, is to be treated as a single,, undivided district. While there is an arc of minority concentration running from the north central portion of the city to the east and southeast central portion, there is no area in Kalamazoo which cqrresponds to the Park Hill section of Denver geographically or historically. Moreover, this court finds that there is no section of Kalamazoo which is a “separate, identifiable and unrelated” unit by reason of geography or a natural or artificial boundary. Keyes, supra, 413 U.S. at 205, 93 S.Ct. at 2696. In the northeastern part of the city, the Kalamazoo River apparently sets off a separate section. However, while, the river has been used to set elementary and junior high school boundaries, it has not usually been used to set senior high boundaries. Apparently, the school authorities or the people of Kalamazoo have not consistently regarded the northeast section as separate from and unrelated to the rest of the school district. In addition, on both sides of the river near the center of the city there are concentrations of minority people and there were, in 1970, racially identifiable schools. Most minority people and pre1971 racially identifiable schools were located west and south of the river, outside the northeast section. Elsewhere in Kalamazoo, railroad tracks, highways, and major roads slice into the city. While Kalamazoo authorities have sometimes taken these features into account for planning purposes, no combination of them isolates a section which has been consistently regarded or treated as a distinct section. Consequently, there is no need for the court to subdivide Kalamazoo into separate geographical units, and to consider the possibility of a separate remedy, or no remedy, for each section. Moreover, relative to Denver, Kalamazoo is a geographically different and compact school district. Any significant Kalamazoo school board action with respect to any number of schools must, in the absence of particular qualifying circumstances, be considered as affecting a “meaningful” or “substantial” portion of the Kalamazoo school system within the meaning of Keyes, supra, 413 U.S. at 199-214, 93 S.Ct. at 2693-2700. This is because an action which affects any one school necessarily has a reciprocal effect on other schools within the system. As Judge John Minor Wisdom of the Fifth Circuit, which has extensive experience with desegregation suits, recently stated: “Infection at one school infects all schools. To take the most simple example, in a two school system, all blacks at one school means all or almost all whites at the other.” United States v. Texas Education Agency, 467 F.2d 848, 888 (1972), cited in Keyes, supra, 413 U.S. at 201, n. 12, 93 S.Ct. at 2694. Similarly, any decision to build a new school or to expand existing facilities necessarily entails a decision not to expend the committed resources on other schools or programs within the system. An additional problem concerning causation ought to be noticed, although it cannot be extensively discussed at this point. Although the Fourteenth Amendment refers broadly to state action, most courts have assumed that in the absence of state statutes of the type at issue in Brown I, supra, it was simply irrelevant whether state agencies other than school authorities were implicated directly or indirectly in the creation or maintenance of segregated schools. The only relevant question has been whether local school boards were legally responsible for the segregated conditions found to exist. However, in this case, the school board claims that it has merely applied a racially neutral neighborhood school policy, and that neighborhood residential segregation is responsible for the resultant segregated schooling. In light of the general words of the Fourteenth Amendment, it becomes relevant to inquire in assessing the validity of this defense whether state agencies other than school boards have, by their deliberate actions and inactions, contributed to a significant degree to the creation or maintenance of segregated -neighborhoods. This issue, and its impact on the present case, is discussed in Part III, infra. Under Keyes, defendants must not only have caused the schools to be segregated, but must have intentionally caused them to be segregated. Ascertaining the board’s intentions is certainly difficult, but it is not at all impossible. The starting place is the standards and processes evolved by the common law for determining the relevant state of mind of the defendant, or defendants, in an intentional tort suit. The Supreme Court and the Sixth Circuit Court of Appeals have said that one of the Congressional statutes relied upon by the plaintiffs in this case, 42 U.S.C., Section 1983, “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961); Pierson v. Ray, 386 U.S. 547, 556, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288 (1967); Puckett v. Cox, 456 F.2d 233, 235 (6th Cir. 1972); see Fitzke v. Shappell, 468 F.2d 1072 (6th Cir. 1972). In general, it is reasonable to infer that people intend the natural and probable consequences of acts knowingly done or knowingly omitted. Thus, in a case-tried to a jury, it would be proper to instruct that: “In the absence of evidence in the case which leads the jury to a different or contrary conclusion, you may draw the inference and find that any person involved intended such natural and probable consequences as one standing in like circumstances, and possessing like knowledge, should reasonably have expected to result from any act knowingly done, or knowingly omitted, by such person. An act, or failure to act, is knowingly' done, if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason.” Since intent may be proved by direct, indirect or circumstantial evidence, all the facts and circumstances in evidence in the case which may aid in the determination of state of mind may be considered. Fortunately, this court is not without guidance in applying these basic standards to the complex school desegregation case presently before it. It is established that where an appropriate factual showing has been made, including a showing that an existing segregated situation is to a significant extent the natural, probable, and actual result of the actions and inactions of the state and local agencies, the plaintiffs have laid an evidentiary foundation for the conclusion that the results, segregated schools, were intended to be reached by these authorities. Bradley v. Milliken, 484 F.2d 215, at 222, 241-242 (6th Cir. 1973) (en banc); Davis v. School District of Pontiac, 309 F.Supp. 734, 744 (E.D.Mich. 1970) , aff’d, 443 F.2d 573 (6th Cir. 1971) , cited with implied approval, Keyes, supra, 413 U.S. at 210, 93 S.Ct. at 2698. In the district court decisions in the Denver case, the court inferred de jure segregation from among other things, the fact that the school board had located a new elementary school “with conscious knowledge that it would be a segregated school.” Keyes v. School District No. 1, 303 F.Supp. 279, 285 (D. Colo.1969), cited with approval, 413 U.S. at 201, 93 S.Ct. at 2694. Of course, in order to make its ultimate determination on the issue of intention, the court must fully consider the evidence and arguments presented by all the parties, including the claim by the Kalamazoo school board that it was resolutely applying a racially neutral neighborhood school policy. Some courts have further refined the standard of proof to be applied in light of special circumstances found in particular school desegregation cases. Thus, the finding that some schools had almost exclusively Black students and faculties and other schools had almost exclusively White students and faculties was held to create a “presumption”' that faculty assignments were made on a discriminatory basis. The effect of the presumption was to place an affirmative burden on the school authorities to demonstrate the constitutionality of their acts. United States v. School District 151, 301 F. Supp. 201, 228 (N.D.Ill.1969), mod. on other grounds, 432 F.2d 1147 (7th Cir. 1970), cited with implied approval, Keyes, supra, 413 U.S. at 209, 93 S.Ct. at 2698. In Keyes, the Supreme Court, noting the relevance of a finding of intentional segregation in one portion of a school system to the issue of the board’s intent with respect to other segregated schools, Id. at 208, 93 S.Ct. at 2697, expressly held that -“a finding of intentionally segregative school board actions in a meaningful . portion of a school system . establishes ... a prima facie case of unlawful segregative design on the part of school authorities, and shifts to those authorities the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions.” Id. The issue of whether a constitutional violation has been committed is affected not only by the circumstantial factors highlighted in Keyes, supra, but also by the fact that the state acts at several governmental levels. The law is clear that official state action at any hierarchial level which directly and intentionally creates, sustains, maintains, or aggravates racial segregation in schools may be cited by plaintiffs to hold defendants accountable for the inequities which result. By the terms of the Michigan Constitution, Art. VIII, Sec. 3, the State Board of Education is given “leadership and general supervision over all public education.” Because the State Board possesses such broad'constitutional' power, its deliberate action and inaction must be weighed in the judicial evaluation of the issue of state governmental responsibility for the establishment and maintenance of unequal educational opportunity. Under certain circumstances, conscious neglect, even though characterized as “benign” by some who do not suffer the ill effects, can be very significant for the development of policy, especially where the clearly foreseeable and actual result is to allow the creation or to ensure the maintenance of a segregated condition in the public schools. However, the immediate task is to determine whether the Kalamazoo school board, apart from and independent of any other state agencies, by its actions and inactions, its commissions and omissions, intentionally contributed in a significant way to the creation or perpetuation of segregated schools. In making the determination, the court must, within the limits of its capabilities, examine all the relevant evidence and consider all the relevant arguments. The focus must be not only each individual school board action, but also the evolving pattern of school board policy. As the Sixth Circuit pointed out in Davis, supra, each school board decision taken alone might not compel the conclusion that the Board of Education intended to foster segregation but, taken together, the decisions might lead to the conclusion that a “purposeful pattern of racial discrimination has existed in the * * * school system” in the past. 443 F.2d at 576. Although the State government retains ultimate legal control and exercises much actual control, in practice the Kalamazoo Board of Education has had primary if not exclusive operational control over Kalamazoo public schools. Thus, the local board sets attendance zones, locates and constructs new schools, adds permanent or temporary classrooms to or completely modernizes old schools, decides whether or not to annex new areas, and hires and assigns administrators and faculty. Since school board decisions of these matters substantially determine the racial composition of students and faculty in each of its schools, the board must be held responsible in fact for any segregated condition which exists. That the board has power to substantially reduce segregated conditions is obvious from the terms and results of the May 7 plan, all of which are within the board’s operational authority. Furthermore, over the long run, school board choices with respect to the location and capacity of schools, combined with other policy decisions, may help to determine the racial composition of neighborhoods, as the Supreme Court has noted: The construction of new schools and the closing of old ones are two of the most important functions of local school authorities and also two of the most complex. They must decide questions of location and capacity in light of population growth, finances, land values, site availability, through an almost endless list of factors to be considered. The result of this will be a decision which, when combined with one technique or another of student assignment, will determine the racial composition of the student body in each school in the system. Over the long run, the consequences of the choices will be far reaching. People gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner-city neighborhoods. In the past, choices in this respect have been used as a potent weapon for creating or maintaining a state-segregated school system. In addition to the classic pattern of building schools specifically intended for Negro or white students, school authorities have sometimes, since Brown, closed schools which appeared likely to become racially mixed through changes in neighborhood residential patterns. This was sometimes accompanied by building new schools in the areas of white suburban expansion farthest from Negro population centers in order to maintain the separation of the races with a minimum departure from the formal principles of “neighborhood zoning.” Such a policy does more than simply influence the short-run composition of the student body of a new school. It may well promote segregated residential patterns which, when combined with “neighborhood zoning,” further lock the school system into the mold of separation of the races. Upon a proper showing a district court may consider this in fashioning a remedy. In ascertaining the existence of legally imposed school segregation, the existence of a pattern of school construction and abandonment is thus a factor of great weight. Swann, supra, 402 U.S. 20-21, 91 S.Ct. 1278-1279. See also Keyes, supra, 413 U.S. at 199, 93 S.Ct. at 2693; Davis, supra, 443 F. 2d at 576; Kelley v. Guinn, 456 F.2d 100 (9th Cir. 1972). (Emphasis supplied.) The Board alleges that for many decades before the adoption of the May 7, 1971 plan, it exercised its' extensive powers according to a “neighborhood school policy.” In general, the policy was that consideration was given to providing an adequate number of classroom desks in the general area of the children’s residence. Just before World War II, the stated policy was to establish a half-mile radius as a suitable attendance zone for elementary schools, although this radius was later increased to three-quarters of a mile. • A junior high, according to the pre-World War II policy should not require the majority of its students to go more than a mile. Two or three miles were not considered unreasonable. A standard elementary school would have 13 rooms, and a student capacity of about 392. In addition, the policy envisioned a uniform curriculum, with uniformly adequate facilities for carrying out the curricular program. The major goals and principal standards of the neighborhood policy have allegedly been in effect during the entire period after World War II until 1971. Allegedly, the policy has always been administered in a racially neutral fashion. Some aspects of this policy would be unobjectionable in any context. The attempt to provide a uniform curriculum and uniformly adequate facilities would be part of any rational school program. Indeed, providing equal curricular offerings and equal facilities is part of the provision of equal educational opportunity to all students, and thus is not only desirable and rational, but constitutionally required. However, the court finds that locating a school within the general area of each child’s residence serves no compelling educational objective which supersedes constitutionally protected rights. One apparently attractive objective the neighborhood school policy does seem to serve is the minimization of inconvenience. A brief examination of the maps showing 1970 elementary attendance zones reveals that the general and subsidiary standards of Kalamazoo’s “neighborhood school policy” were inconsistenty applied. Elementary school attendance boundaries, sometimes following prominent natural or artificial features and sometimes not, form a bewildering variety of geometric shapes and sizes. The map overlay exhibits reflecting circles % mile in radius, corresponding to the walking distance figure referred to by the defendants, reveal substantial overlap and little correspondence to actual attendance^ boundaries. It is apparent that Kalamazoo elementary schools were not situated and boundaries were not drawn in a fashion which regularly placed students in the schools closest to their homes. Moreover, the stated ideal elementary school size of 13 classrooms (2 classrooms for each of 6 grades, plus one kindergarten room) was not regularly followed. Of 25 regular elementary school buildings in use in 1969, only 3 had 13 grade and kindergarten classrooms. Eleven schools had more than 13 grade and kindergarten classrooms, and 11 had less. The largest school was Woodward, with 24 such rooms, and the smallest school was Hillcrest, with 7. The average size of the 25 schools was 14 grade and kindergarten rooms. One elementary school, Chime, which served a largely rural area, had an attendance zone almost as large as that served by all the other schools combined.. In 1969, it had 16 grade and kindergarten classrooms, making it more than twice as large as the smallest school in the system. In addition, Kalamazoo has operated a variety of programs for special need programs that have taken students to schools far from their homes. The point is not simply that Chime and the special programs are inconsistent with the general neighborhood policy, but that the Kalamazoo board has so easily ignored the whole concept. Were the neighborhood school educationally necessary, Kalamazoo would have long since taken steps to disperse Chime and to bring special services to the students. Neither junior nor senior high schools in Kalamazoo serve “neighborhoods” in the commonly understood meaning of that term, since the attendance zones are so large. Rather, Kalamazoo has dispersed its junior high schools around the periphery of the district, having one each in the northwest, southwest, southeast, and northeast, and an additional junior high in the south central portion of the city. There are only two senior high schools in Kalamazoo, one being located until January 1972 just south of the main business district near the center of the district’s population, and another at the extreme southern edge of the district. The statistics concerning the Kalamazoo board’s transportation of students before the May 7 plan provide further evidence not only of the inconstancy of application of. the “neighborhood school policy,” but also of the ease with which the public schools have accommodated the many departures from the “neighborhood school” concept. In September 1967, the Kalamazoo board decided to transport at public school expense each student who lived more than a mile and a half from school. Some transportation was provided by the public schools, and some by the city bus line under contract with the board. According to the board’s statistics, a total of 1155 public elementary school children, or 11.7% of the total, were transported at district expense for reasons other than safety or desegregation during the 1970-71 school year. In 1970-71, the board also transported 1527 public junior high students, about 39% of the total, for reasons other than safety or desegregation. On the basis of even this cursory view of a very small amount of the evidence presented in this case, this court cannot conclude that the Kalamazoo school board resolutely and consistently followed a “neighborhood school policy.” “Policy” is taken here to mean not merely what is actually done, but rather a set of general goals which are adopted for governmentally legitimate reasons, which bear a rational relation to the functions to be served, and which are routinely and consistently followed, unless a sufficiently compelling reason appears for departures in individual cases. The alleged “policy” has been too often departed from to have been a firm and consistent goal of the Kalamazoo board. This court would be the last to minimize the complexities and difficulties of administering a school system. Were it not for the element of race, the court might conclude that the Kalamazoo board simply coped with problems as they arose, making attempts to relate them to stated goals, but in practice doing ultimately what seemed acceptable at the time. But the element of race is present in Kalamazoo, the Kalamazoo schools are segregated, and Black children are being denied equal educational opportunity as a consequence. Although the Kalamazoo Board of Education did not formally and publicly indicate that it was considering race when it made decisions on the matters affecting racial composition of schools, the plaintiffs nonetheless contend that the school board intentionally contributed to the creation and perpetuation of these segregated schools. Indeed, as the parties have stipulated, there is no indication that the Kalamazoo board took any positive action to confront the problem of racial segregation before the late 1960’s. Thus, it becomes necessary for this court to explore in more detail the development of the Kalamazoo public schools. Between 1945 and 1970, there were several types of residential areas in Kalamazoo. The older areas were in the central part of the city. Some of these sections were deteriorating throughout the period, while others were well maintained. Most Black people in Kalamazoo were concentrated in a crescent or arc running from the north central part of the city to the southeast central part. Around the periphery of Kalamazoo, new developments sprang up after World War II which were suburban in character, although they were not far from the central business district. In addition, especially in the 1950’s, Kalamazoo annexed many areas which are rural, but are in transit into suburban areas. Most of the people in the new developments and in the annexed areas are White. The record shows that there was a relatively large number of attendance boundary changes between 1945 and 1970 in the predominantly White areas in conjunction with the annexations and in conjunction with the construction of new school facilities. However, with a few exceptions noted below, the Kalamazoo school board did not often change attendance boundaries of the schools in the central area of the city. Among the schools whose boundaries were rigidly maintained were those attended by the overwhelming majority of Black children in Kalamazoo. After exploration of all aspects of the Kalamazoo board’s practices, some of which are further detailed below, the court has concluded that this rigidification of the boundaries of schools attended by the majority of Black students had the predictable and actual effect of cementing Black students into special areas and particular schools within those areas, and of preserving many other areas and schools for Whites. Among the matters within the control of the school board are attendance zones. While the board insists that it follows a “neighborhood” school policy, it must be emphasized that generally the board defines the “neighborhood” when it draws the boundaries. The Kalamazoo board occasionally departed from the policy of rigidly maintaining school boundaries in the area of Black residence by establishing optional attendance zones. One of these was created in conjunction with the closing of Harding Elementary School in 1960. The Harding School attendance area was divided into two sections. One section in which 15.7% of the households were Black in 1960, was assigned to Edison school. In 1959, Edison was 13.4% Black, while only 7.5% of all students in the district were Black. The second section of the old Harding School attendance area, in which less than 2% of the households were Black, was not assigned to any one school, but made an optional attendance zone. Students could attend Edison, McKinley, which was 1.2% Black in 1959, or Vine, which was 1.4% Black in 1959. While the board might have assigned the optional zone definitely to any one of the three schools, its assignment to Edison would have assigned students from a relatively White area to a relatively (for.the time) Black school. Its assignment to Vine or McKinley would have been to assign relatively White areas definitely to White schools, while the relatively Black area had already been definitely assigned to the rel? atively Black school. In this situation, the choice of an optional attendance zone improved the appearance but had the effect of allowing the Whites in the optional zone the opportunity to opt out of Edison and select Vine or McKinley, each of which had fewer .Black children. As Dr.