Full opinion text
OPINION GARRITY, District Judge. This is a school desegregation case brought by black parents and their children who attend the Boston public schools. Plaintiffs seek for themselves and on behalf of their class declaratory and injunctive relief against the defendants for a myriad of acts that allegedly violate the constitutional rights of the plaintiff class. Defendants are the Boston School Committee, its individual members, and the Superintendent of the Boston Public Schools (hereinafter collectively “the city defendants”), and the Board of Education of the Commonwealth of Massachusetts, its individual members, and the Commissioner of Education (hereinafter collectively “the state defendants”). Plaintiffs have alleged that the city defendants have intentionally brought about and maintained racial segregation in the Boston public schools by various actions, including the adoption and maintenance of pupil assignment policies, the establishment and manipulation of attendance areas and district lines reflecting segregated residential patterns, the establishment of grade structures and feeder patterns, the administration of school capacity, enlargement, and construction policies, transportaion practices, and by unjustifiably failing to adopt or implement policies reasonably available to eliminate racial segregation in the Boston public schools. Plaintiffs assert that these alleged practices have resulted in denying black school children the equal protection of the laws, in violation of the Fourteenth Amendment to the United States Constitution. See Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Keyes v. School Dist. No. 1, 1973, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548. Plaintiffs further contend that the city defendants and their predecessors have engaged in racial discrimination with respect to the hiring and assignment of faculty and staff, and with respect to curricula and the allocation of instructional materials, and resources; that both the city and state defendants have implemented pupil classification practices which discriminate against some children in admission to certain schools, and have maintained a pattern of lower instructional expenditures in schools attended disproportionately by black children. Plaintiffs argue that these practices deny black children their constitutional right to equality of educational opportunity under the Fourteenth Amendment. Federal jurisdiction is invoked and exists under 28 U.S.C. § 1343, and violations of the Thirteenth and Fourteenth Amendments and 42 U.S.C. §§ 1981,1983 and 2000d are alleged. The city defendants have generally denied the allegations of the plaintiffs. They have also argued that to the extent that schools in the Boston system contain disproportionate numbers of whites or blacks, that result is due to residential segregation over which they have no control and also due to the neighborhood school policy, which defendants claim is a constitutionally permissible tool of educational policy. The city defendants further assert that not only have they not promoted segregation but they have tried to effect a better racial balance in the Boston public schools in accordance with the Racial Imbalance Act, Mass.G. L. c. 71, §§ 37C and 37D, and they allege that they have been found to be in compliance with that Act. Along this same line of defense, the city defendants assert that they can do no more consistently with the Racial Imbalance Act than they have already done to eliminate racial imbalance in the city’s public schools. The state defendants have also denied any constitutional wrongdoing. They contend that they have frequently made unheeded suggestions to the. city defendants on how to alleviate racial imbalance in Boston; that they have only limited control over the activities of the city defendants ; and that by enforcing the Racial Imbalance Act and by pursuing judicial enforcement of the Act when the board of education’s orders were not complied with by the Boston School Committee they have done as much as possible to eliminate racial segregation in the Boston public schools. The state defendants have agreed with virtually all the contentions made by the plaintiffs here against the city defendants. Various pretrial rulings should be mentioned. Shortly after the action was commenced, the members and officers of the Boston Teachers Union sought to intervene as parties defendant. Partly because the positions of the city defendants and the teachers were identical on constitutional issues involved in this case, the court denied the motion without prejudice to renewal should the alleged constitutional violations be found. The court denied a motion of the city defendants to join numerous cities and towns around Boston as defendants, partly on the ground that the proposed defendant cities and towns had not been charged by the plaintiffs with contributing to the violation of their constitutional rights. The court also denied a motion to dismiss the complaint by the city defendants, and their motion to stay the proceedings pending implementation of an order entered against the city defendants in a state court case between it and the state defendants involving the Massachusetts Racial Imbalance Act, Mass. G.L. c. 71, §§ 37C, 37D. School Committee of Boston v. Board of Education, 1973 Mass.Adv.Sh. 161, 292 N.E.2d 338. The court granted a motion to dismiss a crossclaim of the state defendants charging the city defendants with actions substantially set forth in plaintiffs’ own complaint. At the court’s request, the parties have attempted, insofar as possible, to enter into stipulations of undisputed facts and to introduce evidence by way of designations and counter-designations of depositions and prior testimony of witnesses in the state case referred to above and in a proceeding between the city and the federal Department of Health, Education & Welfare. Counsel’s pretrial activities helped to shorten the actual trial of this case, which lasted fifteen days, and which concerned only the liability issues of the case, as contrasted with issues relating to the possible remedy. The court also had a one-half day view of some of the Boston schools and received several hundred exhibits. The case was reopened on June 20, 1973 to receive evidence regarding the use of a new high school facility. The plaintiffs alleged that the city defendants in their conduct with respect to this new structure were engaged in further racial discrimination in violation of the Equal Protection Clause. The court received further evidence from both parties. On March 15, 1974 the city defendants moved to reopen the case to submit evidence dealing with their ongoing litigation in the state courts with the State Board of Education and the plan they had been ordered to implement under the Racial Imbalance Act. This motion was denied. Massachusetts Racial Imbalance Act Questions of racial segregation in the public schools of Massachusetts have a unique dimension because of a state racial imbalance law, Mass.G.L. c. 71, §§ 37C, and 37D and c. 15, §§ II, 1J and IK, passed by the legislature in 1965. It has been said that the requirements of the state statute go further than those of the Fourteenth Amendment, see School Committee of Springfield v. Board of Education, 1974 Mass.Adv.Sh. 657, 673, 311 N.E.2d 89 (May 1, 1974— Springfield II), in the sense that the statute commands affirmative action to eliminate racial imbalance in public school systems whatever its cause, i. e., independently of a finding of de jure segregation. The statute has been construed and applied in several decisions of the Supreme Judicial Court of the Commonwealth pertaining to public schools in Boston and Springfield. See, as to the latter, School Committee of Springfield v. Board of Education, 1973 Mass.Adv.Sh. 1543, 287 N.E.2d 438, and Springfield II, supra. Although the statute is not directly involved in the instant proceedings, it is highly relevant. Many of the defendants’ actions were taken as a result of the state law. The provisions of the statute were the subject of frequent discussion at meetings of the Boston School Committee. Efforts by the city defendants to evade the statute illumine their intent with respect to school segregation generally. Communications between the city and state defendants were usually in the context of provisions of the statute. The Racial Imbalance Act evolved from a report in April 1965 by an advisory committee appointed by the State Board of Education and the Commissioner of Education to study racial segregation in the public schools of Massachusetts generally and of Boston, Springfield, Cambridge, Medford and Worcester individually, named the Kiernan Report after the then Commissioner of Education for the Commonwealth, Dr. Owen B. Kiernan. The report concluded that racial imbalance was educationally harmful and should be eliminated. The report specifically noted that Boston contained 45 “imbalanced” schools — i. e., schools with more than 50% non-white students, and proposed various methods whereby the city might solve the problem. The response of the Boston School Committee was first, on April 26, 1965, to refuse to acknowledge that racial imbalance was a problem that ought to be eliminated and then in June to adopt a report by Superintendent Ohrenberger which disputed the premise that racial imbalance was educationally harmful but suggested that “interracial learning experiences are socially desirable.” As a result of the Kiernan Report, the Massachusetts legislature passed the Racial Imbalance Act of 1965. The statute declares that the promotion of racial balance in public schools is the policy of the Commonwealth and provides that “[t]he prevention or elimination of racial imbalance shall be an objective in all decisions involving the drawing or altering of school attendance lines and the selection of new school sites.” Mass.G.L. c. 71, § 37C. Under the Act, the school committees in Massachusetts cities and towns must each year file racial statistics with the State Board of Education. If the state board finds “racial imbalance”, which exists when “the percent' of non-white students in any public school is in excess of fifty percent of the total number of students in such school”, it notifies the school committee of that fact. The committee must then file a plan for the elimination of such racial imbalance. Plans for eliminating imbalance may involve redistricting, new school construction, additions to schools and “other methods.” Under the statute only safety may be considered equally with the alleviation of racial imbalance. Regarding the sensitive question of busing, the Act provides, “No school committee or regional school district committee shall be required as part of its plan to transport any pupil to any school outside its jurisdiction or to any school outside the school district established for his neighborhood, if the parent or guardian of such pupil files written objection thereto with such school committee.” The statute does not mention racial imbalance of faculty and administrative staff. Under the Act it is the responsibility of the state board to provide assistance in the formulation of plans; to make recommendations if no plan is filed, or if a plan is filed but does not meet statutory requirements; and to withhold state financial aid if the school committee “does not show progress within a reasonable time in eliminating racial imbalance in its schools . . . . ” Mass. G.L. c. 15, § II. With respect to state financial assistance, the usual state contribution in Massachusetts to the cost of schoolhouse construction or enlargement is 40%; the Act provides, in § II, for an increase to 65% when construction is for the purpose of reducing or eliminating racial imbalance in the school system. State Court Litigation State courts have made several rulings whether the Boston school committee has complied with the Racial Imbalance Act and whether the state board might lawfully withhold state aid from the City of Boston. More often than not their rulings have turned on procedural aspects of the Racial Imbalance Act. Nevertheless a general familiarity with the state court litigation is essential to a full understanding of the Boston situation. The first suit by the committee was the attack upon the constitutionality of the Racial Imbalance Act in 1967, noted ante at n. 3. In a subsequent case brought by the committee in the Suffolk County Superior Court, the withholding of state funds by the board under the Act was challenged. The controversy centered around what was known as the city’s Fourth Stage Racial Imbalance Plan. On December 18, 1972 the Superior Court ruled, in a complex opinion, that the board could not withhold the state monies because the committee was in literal compliance with the Act, noting, however, that compliance was minimal. On appeal the Massachusetts Supreme Judicial Court affirmed the Superior Court decision on the ground that the board’s action had been predicated upon a single committee vote on September 21, 1971 rather than upon all of the circumstances of imbalance within Boston. School Committee of Boston v. Board of Education, 1973 Mass.Adv.Sh. 161, 292 N.E.2d 338 (February 2, 1973). On February 15, 1973 the Supreme Judicial Court reviewed a determination of invalidity of a board plan which arose out of the same Superior Court proceedings. The court ruled that judicial review of the board’s plan should be upon the basis of an administrative record and ordered the trial judge to vacate his order and interlocutory decree and to remand the proceedings to the board for the development of a record. Professor Jaffe of Harvard Law School, as a hearing examiner for the board, conducted hearings and filed a detailed report on May 29, 1973, including findings and recommendations which were substantially adopted by the board on June 25, 1973. On June 28, 1973 Governor Sargent requested an advisory opinion from the Supreme Judicial Court on the constitutionality of a bill passed by the legislature and awaiting his approval which would prohibit the transportation of students without the written consent of their parents. In Opinion of the Justices, 1973 Mass.Adv.Sh. 1027, 298 N.E. 2d 840 (July 10, 1973), the court ruled that the bill would be unconstitutional and the Governor vetoed it. On July 16, 1973 the Supreme Judicial Court reviewed three suits involving the use of a new $24,000,000, ten-story building on Avenue Louis Pasteur, due to open in September 1973. This tower facility was constructed as part of a plan to alleviate racial imbalance in high schools and accordingly qualified for increased state financial assistance, 65% of the cost instead of the usual 40%. It was originally planned for occupany by English High School, but on April 23, 1973 the committee voted to use it for Girls Latin School. The court enjoined the committee from turning the facility over to Girls Latin. The committee’s next case challenged the board’s plan for racial balance which had grown out of the Jaffe hearings. Noting the committee’s complete inaction since those hearings, the court rejected the challenge, putting the committee on notice that the time for testing the statute had passed, and it was time for implementation. School Committee of Boston v. Board of Education, 1973 Mass.Adv.Sh. 1315, 302 N.E.2d 916 (1973). On November 14, 1973 a single justice of the Supreme Judicial Court ordered the committee to file with the board a detailed plan for implementation of the board’s order. On December 11, 1973 the committee filed two documents with the board, which on December 26, 1973 disapproved of portions of both and ordered that specific steps be taken to insure implementation in September of 1974. On January 4, 1974 the board filed a petition seeking judicial enforcement of its orders. On January 9, 1974 the committee represented to the single justice that it would comply and the justice accordingly adjourned the hearing until January 16, 1974, the day after the deadline for compliance. The justice on that date determined that the committee had not complied with the board’s order and ordered compliance by January 21, 1974. Board of Education v. School Committee of Boston (January 16, 1974). On March 16, 1974 the board again petitioned the Supreme Judicial Court for further enforcement of its orders on the basis of the committee’s responses subsequent to the January 16, 1974 order entered by a single justice of the court. The court again found that the committee had not complied with the board’s orders and that it had not complied fully with the court’s order, and stated that several of the committee’s submissions manifésted a continued attempt to delay implementation of the racial balance plan. Board of Education v. School Committee of Boston, 1974 Mass. Adv.Sh. - (Mar. 22, 1974). On April 17, 1974 a single justice of the court entered a further order that the committee comply with other detailed board orders. With respect to the plan for balancing Boston’s schools in September of 1974, the order specifically required that staff assignments be completed by May 1, 1974, that the staff be officially notified of those assignments by May 15, 1974, and that the safety and transportation plan for students be completed, adopted by the committee, and submitted to the board by May 15, 1974. At several times during the course of the proceedings in this court, the city defendants have advanced the theory that the committee has been found to be in literal compliance with the Racial Imbalance Act by the state courts; that there are restrictions in the Act and in interpretive decisions limiting the measures which school committees may take in alleviating imbalance; and that consequently, since the committee has done all that it could under the Act, the state law itself and the state defendants are responsible for racial segregation in Boston. This theory of the city defendants must be rejected on several grounds: (1) Boston is only now on the threshold of real compliance with the 1965 statute as a result of numerous board orders and a series of unfavorable court decisions. (2) The record in this case simply will not support a finding that the city defendants saw themselves caught on the horns of the legal dilemma of choosing between fidelity to state law or to federal constitutional principles, and in good faith chose to follow state law. (3) Even if they had done so, assuming- a conflict, their choice would not have been constitutional. (4) The premise underlying the city defendants’ theory, viz., that the Racial Imbalance Act and the Constitution of the United States are in conflict, is plainly specious. As to the facial validity of the Act, we subscribe both to the Supreme Judicial Court’s conclusion of constitutionality and its observation, “It would be the height of irony if the racial imbalance act, enacted as it was with the laudable purpose of achieving equal educational opportunities, should, by prescribing school pupil allocations based on race, founder on unsuspected shoals in the Fourteenth Amendment.” School Committee of Boston v. Board of Education, 1967 supra, 352 Mass, at 698, 227 N.E.2d at 733. As to any constitutional attack on the Act as applied, Boston’s present racial segregation is hardly the result of the city defendants’ having complied with the state statute. Indeed it is just the opposite. Federal Administrative Proceedings The city defendants have also encountered administrative sanctions by the federal government for alleged violations of the Civil Rights Act of 1964: alleged discrimination on the basis of race. At issue in federal administrative proceedings are many millions of dollars in federal funds in a wide variety of educational aid programs. Elementary and Secondary Education Act (ESEA), Title I, 20 U.S.C. §§ 241a-244 1971— $6,105,501 1972— $8,817,298 1973— $5,928,429 Federal Assistance for Education of Handicapped Children under P.L. 89-313, Amendment to Title I, ESEA 1972— $24,000 1973— $21,000 School Library Resources, ESEA, 20 U.S.C. §§ 821-827 1971— $124,997 1972— $145,371 1973— $145,371 Supplementary Educational Centers and Services ESEA Title III, 20 U.S.C. §§ 841-848 1971 — $576,984 1973 — $559,494 Education of Handicapped Children, Title VI, ESEA, 20 U.S.C. §§ 871-880 1971— $41,231 1972— $33,645 1973— $89,345 Strengthening Instruction in Critical Subjects Title III NDEA, 20 U.S.C. §§ 441-444 1971— $105,029 1972— $100,914 Vocational Education, Vocation Education Act of 1963, 20 U.S.C. §§ 1241-1355, 1391 1971— $228,080 1972— $176,046 1973— $455,836 School Assistance in Federally Affected Areas, 20 U.S.C. §§ 236, 240 1971— $611,072 1972— $643,976 1973— $600,000 Education Professions Development Act, 20 U.S.C. § 1091, P.L. 90-35, B2 1972— $100,000 1973— $120,000 Grants to Strengthen State Departments of Education, Title V, ESEA, 20 U.S.C. § 862 Children of Migratory Workers, 20 U.S.C. §§ 241c (a) (b), 241e(c) Guidance, Counseling and Testing, Title V-A, NDEA, 20 U.S.C. §§ 481-485 School Construction in Federally-Affected Areas, P.L. 81-815, 20 U.S.C. §§ 641-645 Teacher Corps, 20 U.S.C. §§ 1101-1107a Drop-Out Prevention, 20 U.S.C. § 887 Economic Opportunity Act of 1964, Title II, Community Action Programs — Special Programs and Assistance: Head Start and Follow-Through, 42 U.S.C. § 2809 Area Redevelopment Act, Section 241, 42 U.S.C. § 2610a Emergency School Assistance Program, 45 C.F.R. 181 Strengthening Instruction in the Humanities, 20 U.S.C. §§ 951, 952, 961 By letters dated November 30, 1971 and June 2, 1972 the Office of Civil Rights of the Department of Health, Education and Welfare (HEW), pursuant to 42 U.S.C. § 2000d-l, attempted unsuccessfully to secure voluntary compliance with the federal Act. On June 2, 1972 consolidated compliance proceedings were begun with HEW, the National Science Foundation, and the Department of Housing and Urban Development (HUD) participating. Since then federal funds in the above-listed amounts, and more, have been withheld from the public schools of Boston pursuant to 42 U.S.C. § 2000d-l. After notice and extensive pre-hearing proceedings, the hearing began on September 19, 1972 and continued until October 5, 1972. Following the filing of briefs and oral arguments, Administrative Law Judge Ring made his initial decision finding the city defendants in violation of the federal statute. In the Matter of Boston Public Schools, March 2, 1973. Judge Ring’s decision was affirmed, with minor exceptions, by the final reviewing authority in HEW, In the Matter of Boston Public Schools, April 19, 1974, which found, with HUD’s concurrence, that the city defendants have been guilty of de jure segregation. The federal officials determined that Boston had, by persistent continuing segregative practices, intentionally created a dual school system. Included in these practices were the creation of the middle school system with feeder patterns into and out of those schools and the complementary attendance options of open enrollment and later controlled transfers with assorted exceptions. The city defendants’ practices with respect to the McCormack, Thompson, Michelangelo, Lee and other schools were found to have purposefully created segregated schools. The Boston School District in General The Boston school system, whose boundaries are coterminous with those of the city, is headed by a five-member school committee elected at large by the voters of Boston. There is also a board of superintendents consisting of the superintendent, who is the chief school administrator, deputy superintendent, associate superintendents and the business manager. Each member of the board, which advises the superintendent, is in charge of a department. These departments include school operations, educational planning in which there is an educational planning center, personnel, staff training and development, special services, curriculum and inspection, and the business department. Each assistant superintendent is in charge of a portion of Boston known as a district. A district contains all levels of schools. The school system is funded through a complicated statutory formula, applicable only to Boston, which allows the school committee to appropriate the great bulk of the system’s funding but requires the Boston city council to appropriate another portion upon the request of the school committee and the recommendation of the Mayor. The committee also lacks autonomy in selecting sites and contracting for the construction of new schools, as to which final responsibility lies with the Public Facilities Commission, an" independent agency of the city. The Commonwealth of Massachusetts traditionally has exercised little authority over the day-to-day operation of local school districts. The role of the state department of education, which is under the supervision of the state board pf education, with respect to local school systems is largely supportive — providing a communication and information center, specialized services and planning. The chief administrator for elementary and secondary education within the department is the commissioner of education. The primary authority of the department is in the promulgation of educational standards: minimum school day lengths, minimum number of days in a school year, professional standards, maximum pupil-teacher ratios, ages for school attendance, nutritional standards, minimum educational standards, minimum building standards, etc. The department has two other important responsibilities, the distribution of federal and state aid, see Mass.G.L. c. 15, § 1G, and the supervision of the Racial Imbalance Act, id. at § II. One other provision should be specifically noted. “The board shall see to it that all school committees comply with all laws relating to the operation of the public schools and in the event of noncompliance the commissioner of education shall refer all such cases to the attorney general of the commonwealth for appropriate action to obtain compliance.” Id. at § 1G. While this division of authority between the state department of education and local school committees may be traditional, preferred, and most politically feasible, it is not required. The state has the authority, if the legislature should so enact, to take education out of the hands of local officials completely. Thus local officials derive all of their authority from the state ultimately. Boston, one of the oldest cities in the country, retains much of its colonial layout, particularly in the downtown area. Bays and rivers and the street layout of the city have to some degree isolated some sections. The Charlestown and East Boston areas, surrounded by the Atlantic ocean and the Charles and Mystic rivers, are north of the center and have limited access to Boston proper. The South Boston area has less of a restriction on access, but remains a distinct section of the city. As in other places, political boundaries have also isolated one segment of the city. Thus, the Brighton-Allston area to the west, while easily accessible, is cut off politically from the rest of the city by the Town of Brookline except for a narrow connecting strip of Boston along the south bank of the Charles River. The Boston school system was at one time a system of districts, subdivisions of the city, which funneled students from elementary schools through district junior high schools to district high schools. Boston has also had citywide schools for many years. These originally fell into two categories, special examination schools and citywide trade schools. The special examination schools were Boston Latin and Girls Latin for college preparatory work, and Boston Technical for technical and trade work. The citywide trade schools were Boston Trade and Girls Trade, with no examination required for admission. In addition to these trade schools special programs such as auto mechanics, upholstery and electricity were offered at the various district high schools and open to students throughout the city. From this basic organization the Boston school system has evolved into a complex maze of patterns, policies and types of schools— with various exceptions to all of these— which has completely changed the original district design. At present Boston has mismatched modes of grade progression through the school system, as follows: 8-4; 5-4-4; and 6-3-3. This system is further complicated by the possibility of transferring, or being transferred, from one progression into another. With the exception of special examination schools and trade programs, the moving of students who graduate from one school into the next level school is accomplished by feeder patterns. A feeder pattern channels students from one or more schools in one level into one or more schools at another level. Feeder patterns, as distinguished from the intra-district progression method, began to be the primary method of funneling students in 1967-68 when the grade system was changed by the introduction of middle schools. After the opening of four middle schools, a plan for the conversion of the entire system to this grade design has apparently been abandoned or post-, poned indefinitely. Boston’s schools at the middle, junior and senior high levels now obtain students from large parts of the city. Some students, such as those in South Boston, East Boston, and Charlestown, still move through schools in those areas as if they were district schools; however, their schools also serve large numbers of students from other parts of the city. At present three of Boston’s high schools admit students by examination; four others admit students from all parts of the city; three admit students from specified districts as well as from all parts of the city; eight admit from specified districts, except that eligibility for their vocational training programs is citywide. The junior high and middle schools have equally complex methods of filling their classrooms. As for elementary schools, the city has a complex maze of single school and multi-school districts which vary widely in size. The elementary schools generally cannot be fairly characterized as neighborhood schools. District lines require some students to travel many blocks to a school when there is another school much closer, but on the other side of that district line. In multi-school districts, students at least when enrolling for the first time have a complete option as to which school to attend and often walk past one en route to another. Some elementary schools, community schools and magnet schools are further affected by other programs. Community schools have been designed and constructed with a view to involving the nearby community and their facilities are available to adults after school hours. Some have swimming pools and other athletic facilities and all provide meeting places for community organizations. There are nine such elementary schools and one junior high, the Cleveland. Magnet schools, of which there are four, have districts which are smaller than would be normal for their capacities. The idea is that students from outside of the district and outside of the city will be attracted to attend them in order to take special courses. Two, Trotter and Hennigan, were built in non-white neighborhoods. Whites attracted to these schools were supposed to fill vacant seats after students residing in the district were seated. Three schools, an elementary (Trotter), a junior high (Lewis) and a senior high (Copley Square), comprise a so-called model demonstration subsystem. Until federal funds were cut off, they received approximately 30%, 40% and 50% respectively of their financing from the federal government under Title I of the Elementary and Secondary Education Act, 20 U.S.C. §§ 241a-244, because of special programs designed to aid disadvantaged children of parents receiving Aid to Families with Dependent Children. Eligible white students from outside Boston, from between 15 to 20 suburban communities, are bused at no charge to and from these schools. Approximately one-third of Boston’s students, a large majority of whom are in high school, use buses or other public transportation to travel to and from school. Approximately 3,000 elementary students are transported at city expense, most of whom attend schools over a mile away from their homes. In Charlestown some elementary students who live less than a mile from school are bused for safety reasons. Other elementary students are bused several miles, e. g., from the Dearborn district in Roxbury to the North End and East Boston; others from the South End to Brighton. The three examination high schools, sometimes called the “elite schools”, were served in the school year 1971-72 by a combined total of 63 buses on 35 routes. Many other students travel between distant parts of the city. Two programs for transporting black pupils to predominantly white schools were started by black parents as private projects and later financed by the state. One, called Exodus, buses blacks within the city; at its peak in 1969 it handled 1,100 pupils, a figure reduced to 170 in 1972. The other, which started in 1966 and is called Metco after its sponsor the Metropolitan Council for Educational Opportunities, takes black pupils to schools in the suburbs; the number transported has increased steadily and now totals approximately 1,650. The Degree of School Segregation The Boston public schools are characterized by heavy concentrations of black pupils in some schools and heavy concentrations of white pupils in other schools. As of the 1971-72 school year, during which this action was filed, approximately 96,000 students were enrolled in the system, of whom about 59,300, or 61%, were white; 30,600, or 32% were black; and 6,500, or 7%, were other minorities. This overall ratio, which still exists, is far out of line with the ratios in most of the system’s schools. Eighty-four percent of Boston’s white students attend schools that are more than 80% white; 62% of the black students attend schools that are more than 70% black. At least 80% of Boston’s schools are segregated in the sense that their racial compositions are sharply out of line with the racial composition of the Boston public school system as a whole. Johnson v. San Francisco Unified School District, N.D.Cal.1971, 339 F.Supp. 1315, 1329. See also Swann v. Board of Education, 1971, 402 U.S. 1, 25-26, 91 S.Ct. 1267, 28 L.Ed.2d 554. Racial segregation permeates schools in all areas of the city, all grade levels, and all types of schools. Boston has eighteen high schools. Only one, Boston High, which features a work-study program, reflects the racial composition of the student population in the Boston school system. Only one other, Brighton High, is within 10% of that makeup. Five high schools are in excess of 90% white. Three others are 85% white. Two high schools are 90% black and have a white student population of 2% or less. Four others have a more than 50% black composition: 52%, 66%, 66% and 75%. The two remaining high schools have a combined black and other-minority enrollment in excess of 55%. This pattern persists at specialized schools: Boston Latin and Girls Latin, special examination schools for college preparatory work, are 93% white and 89% white respectively. The trade schools in Boston are similarly segregated: Boston Technical, 84% white; Boston Trade, 66% black; and Girls Trade, 75% black. A similar pattern obtains in the junior high and middle schools. Boston’s four middle schools are 94% black, 86% black, 72% black, and 63% black. Of fifteen junior highs, six are over 90% white, one is 88% white, one 81% white. Three junior highs are 95% black. Only the Edison and Taft junior highs approach the racial makeup of the school system, but they miss that by 10% and 20% black shortages respectively. Boston has ten elementary schools ending in grade eight. Five have enrollments greater than 82% white; one is 94% black; another, a combination of 78% black and 15% other-minority. Two others are more than 60% black and other minorities. The other 140 or so elementary schools in the city, in which the highest grades are fifth or sixth, have similar compositions. Sixty-two are less than 5% black; thirty-two are 85% or more black. The remaining elementary schools also have attendance ratios sharply out of line with the racial makeup of the school system. Only five of these approximately 140 elementary schools, Marshall, Taylor, Barrett, Stone and Curley, have a racial composition within ten percent of the citywide 61:32 ratio of whites to blacks. Teachers are also segregated. Seventy-five percent of Boston’s black teachers are in schools more than 50% black. Eighty-one schools have never had a black teacher. The Boston public school system is thus characterized by racial segregation. The defendants do not dispute this central fact. The dispute, rather, is how the schools have become and remained that way. The court’s primary task is to determine whether the defendants have intentionally and purposefully caused or maintained racial segregation in meaningful or significant segments of the Boston public school system, in violation of the Fourteenth Amendment. Keyes v. School District No. 1, Denver, Colorado, 1973, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548; Swann v. Board of Education, 1971, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554; Brown v. Board of Education, 1954, 347 U.S. 483, 74 S. Ct. 686, 98 L.Ed. 873; Davis v. School Dist. of Pontiac, Inc., E.D.Mich.1970, 309 F.Supp. 734, aff’d 6 Cir. 443 F.2d 573, cert. denied, 1971, 404 U.S. 913, 92 S.Ct. 233, 30 L.Ed.2d 186. In making this determination, the court has analyzed the defendants’ conduct in six principal areas, to be discussed separately, as follows, (1) facilities utilization and new structures, (2) districting and redistricting, (3) feeder patterns, (4) open enrollment and controlled transfers (5) faculty and staff and (6) vocational and examination schools. I Facilities Utilization and New Structures The plaintiff and the defendants presented much evidence pertaining to overcrowding, the use of portable facilities,, and new annexes and schools. The crucial evidence consisted not only of the decisions on the use of school facilities but also of the complex contexts in which these decisions were made. Thus the planning, timing, educational justifications and other factors all pertain to intent or purpose. The effect of school officials’ actions is more readily apparent. The first relevant facet of the situation is the crowded condition of some schools. Overcrowding The Boston system is oddly riddled with groupings of school facilities at each grade level that are extremely overcrowded. These overcrowded schools stand in stark contrast to other facilities at all grade levels which operate far under their capacity. Generally, the overcrowded schools are predominantly white and the under-utilized schools are predominantly black. The following tables for the school year 1971-72 demonstrate this condition with several of the more extreme situations in the high schools, junior highs and one middle school: Racial Makeup Overcrowded Schools B% 0M% W% Charlestown High 2.0 6.6 91.4 Dorchester High 52.2 1.1 46.8 Hyde Park High 15.3 .7 84.1 Roslindale High 5.1 1.6 93.3 South Boston High 0 .7 99.3 Cleveland Jr. High 7.1 1.8 91.2 Gavin Jr. High 1.8 1.8 96.4 Rogers Jr. High 3.3 .4 96.3 Underutilized Schools * Boys Trade 66.5 6.9 26.6 English High 66.7 8.5 24.8 Girls Trade 74.9 5.1 20.0 Girls High 91.7 5.8 2.5 Jeremiah Burke High 89.0 10.1 .9 King Middle School 94.4 5.4 .2 Timilty Jr. High 95.0 3.1 1.8 In some instances this overcrowding has been extreme, e.g., South Boston High, all-white, was overenrolled by 676 students in the 1971-72 school year. In contrast, Girls High, 92% black was underenrolled by 532 places. These patterns are also observable at the elementary level. Available Seats Identifiably Black 1971-72 1970-71 1969-70 P. Brooks 108 88 107 Q. Dickerman 75 66 45 Mackey 83 51 Bancroft 60 66 Williams 73 70 Carter Temporary 79 Dudley 156 131 Bacon 79 60 Dillaway 145 136 Hale 55 58 J. Bates 52 51 68 Lincoln 153 47 143 Enrollment Over Capacity Identifiably White 1971-i 1970-71 1969-70 Everett 126 138 153 Russell 27 48 18 Clap 68 76 52 O'Hearn 54 48 57 Hemenway 128 111 98 Mather no 123 134 Southworth 16 42 74 Cushing 29 95 42 Chittick 108 Longfellow 102 122 121 112 116 Overcrowding is educationally damaging partly because it strains the capacity of core facilities such as libraries, classrooms, science laboratories and trade shops. The adverse educational effects of overcrowding within a school facility are so obvious that we shall not discuss it further except to note that by words and deeds the defendants often knowledged that fact. However, the defendants have responded on at least one occasion to the problem of overcrowding with actions contrary to sound educational practice. In alleviating overcrowding at Cleveland junior high, 91% white, students were assigned to the already overcrowded and relatively distant white South Boston High. There were closer schools with available seats but these schools were identifiably black. Similarly, when it would have reduced racial segregation, the defendants ignored other opportunities to decrease overcrowding by altering school assignments, viz., the group assignment and busing of black students to the Weld school, nearly every use of portable classrooms and the opening of the Lee school. While it would not always have been necessary, busing was a viable alternative to overcrowding. Boston buses several thousand school pupils. In June 1971 defendants proposed busing 4,000 inner city black students as much as fifteen to twenty miles to suburban schools in exchange for an equal number of white students from the suburbs. The defendants have not felt constrained by the busing restrictions in the Racial Imbalance Act, Mass.G.L. c. 71, § 37D, which they correctly viewed as constraining state officials only. Some evidence tended to show an explicit racial reason for not relieving overcrowding. For example, Deputy Superintendent Meagher did not consider assigning students from overcrowded white schools to black schools with available space because he “thought it would create a problem” of white parents protesting. Assistant Superintendent Griffith did not favor such assignments because he knew that white parents were opposed to such transfers. On several occasions defendants pursued a policy of reducing overcrowding when it would not affect the racial composition of the schools involved, e.g., changing the boundary lines of the Cleveland and Campbell (now King) districts in 1959 and the Boardman district in 1964, housing overflow students from English High in the Roosevelt and Edison Schools from 1964 until 1970, assigning blacks from overcrowded schools to the Weld from 1970 until 1972, and transporting the entire Kennedy school fourth grade to the Boardman in 1969 due to overcrowding at the Kennedy. Finally, the defendants deliberately dragged their feet in formulating plans to lessen overcrowding as well as racial imbalance generally. They constantly delayed the presentation of plans requested by the state board until the last possible moment. For example, a plan to balance high schools in South Boston, East Boston and Charlestown was under discussion at a school committee meeting on June 1, 1971 when the superintendent stated, referring to the commissioner of education, “If you want my quick reaction to it, I’d hold this plan in my back pocket until he demands it.” Thus the defendants have recognized the educational hazards of overcrowding but have acted inconsistently on the basis of the race of the students being harmed. The following subdivisions deal specifically with affirmative acts of the defendants related to overcrowding which we find intentionally created or maintained racial segregation. Portable Classrooms Portable classrooms are semi-mobile, one classroom buildings which are designed for quick temporary service without large capital expenditures. Boston has used them since the 1960’s to alie-, víate the overcrowding of some schools. The use of these facilities and the defendants’ contradictory statements regarding their use are highly probative. In 1967 the city placed 50 of these units at various schools in the city. The following tables demonstrate how they were used to alleviate overcrowding at predominantly white schools: Number of Schools Percentage Black Number of Portables * 10 0- 5% 24 4 5- 15% 20 0 15- 30% 0 2 30- 50% 5 1 50- 70% 1 0 70-100% 0 In 1972-73 there were 46 in use and their location was as follows: Number of Schools Percentage Black Number of Portables 6 0- 5% 26 4 5- 15% 8 1 15- 30% 3 2 30- 50% 5 0 50- 70% 0 2 70-100% 4 Portables were used to alleviate overcrowding when available nonsegregative methods, such as changing district lines and reassigning students, could have achieved the same result. The use of these portables perpetuated the racial concentrations present in both the overcrowded schools and the schools to which displaced students might have been sent. The city defendants’ policy regarding the use of portables has shifted back and forth, depending on whether their use was proposed as a means of reducing segregation or of correcting overcrowding at predominantly white schools. The Kiernan Report recommended their use for the former purpose, but in June 1965 the defendants decided against it because portables had been proved to be, in Superintendent Ohrenberger’s phrase, “educationally undesirable.” Simultaneously, however, their use for the latter purpose was under consideration and on September 13, 1965 the committee voted to place portables in South Boston. According to the then chairman, a reason for this was that “there would be no question regarding the racial imbalance question.” In February and June 1966 the state task force on racial imbalance criticized plans submitted by the committee for failing to propose, among other things, the use of portables to reduce racial imbalance. On June 2, 1966 the committee again rejected the idea, with various members raising objections of expense and parental opposition. But on March 6, 1967, the committee approved the use of 38 new portables to control overcrowding. Again in 1968, 1969 and 1971 the school committee declined to follow state board proposals for the use of portables in the city’s racial imbalance plans for those years. New Facilities Boston has increased its seating capacity by the construction of new schools, the building of annexes and the acquisition and conversion to schools of such diverse structures as a church, a synagogue, an automobile showroom, a bowling alley and a bathhouse. The overwhelming effect of most of these projects has been to increase racial segregation. The following table shows the racial composition of these new schools or annexes upon opening: Racial Makeup upon Opening Facility School Year Opened B% 0M% W% Lewis Senior Annex 1967 ('67-'68 only) 98.6 0 1.4 Garrison Annex 1970 98.4 1.6 0 Paine Annex 1970 91.5 1.6 6.9 Weld 1970 (closed '72) 87.1 5.8 7.1 Bradford Annex 1969 81.2 9.4 9.4 Lewis Middle Annex 1970 ('70 — '71 only) 79.1 .9 20.0 Tobin Annex 1969 74.6 14.5 10.9 Carter Temporary 1971 72.6 4.7 22.7 Kennedy Annex 1969 ('69 — '70 only) 60.7 15.2 24.1 Copley Square High 1968 56.3 3.0 40.7 Dorchester Annex 1970 53.1 .5 46.4 Haley 1971 47.2 8.7 44.1 Boston High 1968 39.8 2.0 58.2 Hamilton Annex 1970 11.3 1.0 87.6 Georgetown Kd. 1970 (closed '72) 3.0 .4 96.6 Charlestown Annex 1971 2.0 6.6 91.4 Sumner Annex 1969 1.9 .9 97.2 Dean Í972 1.0 3.0 96.0 L Street Annex 1970 .7 2.3 97.0 Hart 1972 .5 8.3 91.2 Contrary to the command of the Racial Imbalance Act that “[t]he prevention or elimination of racial imbalance shall be an objective in all decisions involving the selection of new school sites”, Mass.G.L. c. 71, § 37C, and that plans should detail “proposed additions to existing school buildings”, § 37D, the defendants took the position that the effect on racial imbalance was irrelevant to the planning of several of these new facilities. Significantly, many of the annexes that were not subjected to state scrutiny, because constructed without state financial aid of any sort, opened identifiably black. If state aid had been applied for when these facilities were being planned, the state board would routinely have inquired about their probable impact on racial imbalance. Evidently the defendants preferred not to have to respond to that type of inquiry. From the percentages and circumstances already described, and the specific episodes which follow, it is apparent that, in the matter of facilities utilization and new structures, the defendants were covertly resisting the elimination of racial imbalance and endeavoring to perpetuate racially segregated schools. (a) The Weld School. This school, located in Roslindale, where 98% of the residents were white, was opened in September 1970 after purchase from the Archdiocese of Boston for which it. had been a parochial school. For two school years, 1970-71 and 1971-72, it was used to relieve an overcrowded situation in the 90% black Bradford-Walcott district a mile and one-half away. There approximately 130 non-white students and 11 white students were selected mostly by lot and assigned to 'the Weld, where they were joined by 14 students from the vicinity who suffered from visual handicaps. Weld opened 87% black, 6% other-minority and 7% white. After commencement of the instant action and objections by the state board, HEW and representatives of the black community, Weld was closed. It may be, as contended by defendants, that it was planned from the start as a temporary facility. This does not explain, however, why none of the regular, i.e., nonhandicapped, students from the neighborhood of Weld were assigned to attend it. Moreover, nearly all of the 57 first and second grade black pupils might have been assigned, with no greater inconvenience, to vacant seats in predominantly white schools in the Sumner and Longfellow districts. Parents of the black students were given no choice about their children being bused distances of from one and a half to two miles. Theretofore the defendants had adhered to a policy of busing only on a voluntary basis. The first attempt by the defendants to ascertain the attitude of black parents toward busing to Weld came in April 1972, three months before the school was closed. The defendants have argued that the reason for transporting the BradfordWalcott students to the Weld school was to keep existing friendships intact. This argument must be rejected because there is no evidence that this reason was considered by the defendants before busing was undertaken; the evidence supporting it appears exclusively in documents prepared after HEW and the state board charged the defendants with discrimination in relation to the Weld school. (b) The Hennigan School. This new elementary school was proposed in 1967 as part of Boston’s first stage racial imbalance plan and was built with 65% state financing as a replacement for the Jefferson school which had a capacity of 500 students. One wing of the school was opened in 1971 with 302 students, 65% black, 10% other-minohky and 25% white. The school had a capacity of 1,080 students and was planned to accommodate students residing in the nearby Heath Street housing project, 99% black, and white students to be recruited from outside the district. The defendants made no efforts to recruit white students for the 1971 opening. As a consequence of its location and defendants’ action, the school was identified as tailored for black students. Thus in the following year, the defendants distributed 50,000 recruiting brochures but garnered only 50 white recruits. A three-day “open house” in June 1972 was the last effort made by the committee. The entire school opened in the fall of 1972, 62% black, 13% other-minority and 25% white. There is no justification for the defendants’ reli.ance upon obtaining white volunteer students rather than assigning white students to the school. They argue now that failure of the efforts to attract white volunteers to Hennigan could not have been foreseen because, after all, white students voluntarily enrolled in Trotter. But that was in 1969. Times had changed and local opposition to racial balancing was on the rise. In 1971 negligible numbers of white students in the Fifield and O’Hearn districts had volunteered to attend Lee. The analogy also limps because of essential differences between Hennigan and Trotter, which was the elementary school component of the model demonstration subsystem to which white children of AFDC recipients were bused from all over the greater metropolitan area. The attendance of black students at the Hennigan school was mandatory; -its racial segregation upon opening could not have come as a surprise. (c) The Lee School. This school was also proposed as part of the first stage racial imbalance plan and was planned to replace kindergarten through grade 5 of the Champlain, Whittier and Nightingale schools. Because its construction was supposed to contribute to racial balance, the state paid 65% of its cost of over $7,000,000 pursuant to Mass.G.L. c. 15, § II. From the beginning the state board pressed the school committee for assurances that the Lee would open racially balanced. On June 1, 1971 the school committee decided to include within the new Lee district approximately 350 white pupils then attending the Fifield and O’Hearn schools but gave them the option of attending their former schools. This was done in the face of warnings by Mr. Coakley of the city’s Educational Planning Center (EPC) that the option would produce an imbalanced school. On July 12, 1971 the committee was presented with hard evidence that the Fifield-O’Hearn option would produce an imbalanced Lee; it was told that no O’Hearn parents at all and the parents of only 37 Fifield pupils had indicated that they would send their children to the Lee. To compel reconsideration, the state board threatened to withhold state funds. So on August 23, 1971, barely two weeks before the beginning of school, the committee eliminated the Fifield-O’Hearn option by a 3-2 vote. Significantly neither the principal of Lee school, Miss Kelley, who had worked many months to assure a successful opening, nor the Fifield and O’Hearn parents were told of the August 23 vote. Opening day at Lee school, September 8, was chaotic. Approximately 200 black students from the predominantly black Franklin Field housing project nearby illegally registered by giving false addresses and occupied seats. The Fifield and O’Hearn pupils registered at their former schools, refusing to go to Lee. Confronted with this situation, the committee on September 17 scheduled a public meeting at the O’Hearn school on September 21, and, with one member switching his vote, reinstated the Fifield-O’Hearn option and allowed the black sit-in pupils to remain at Lee. The finding of the Superior Court, to which the defendants are bound, was that “this vote was a measure of expedience in the face of public furor.” Boston School Committee v. Board of Education, Suffolk Sup.Ct., No. 94254, at 42. We add that, to a large extent, the crisis was of the committee’s own making. The defendants acted in such a way as to lead all parties concerned to believe that it would not compel the Fifield and O’Hearn pupils to attend Lee. It did virtually nothing to encourage the parents of those students to send them to Lee, even when it became inevitable that Lee would open racially imbalanced if those students were not in attendance. The intent of the defendants was apparent all along: they never intended to take the initiative in seeing that Lee would open racially balanced. The segregated consequences were clearly foreseeable. Parenthetically, assignment of Fifield and O’Hearn pupils to Lee would have alleviated overcrowding at those schools. Educational considerations, thus did not justify the defendants’ failure to advance integration at Lee. Moreover, the routes from Fifield and O’Hearn were safe and no transportation was necessary. Safety considerations thus did not explain the school committee’s actions. The defendants have sought to justify their capitulation of September 21 on the ground that the black pupils who illegally registered at Lee were adamant about staying and the Fifield-O’Hearn option was reinstated to prevent overcrowding at Lee. This proffered theory is pure rationalization and completely unsupported by contemporaneous evidence of the reasons for the committee’s action. Furthermore, permitting the Fifield and O’Hearn pupils to return to their former schools merely perpetuated overcrowding at those schools. Finally, the defendants’ suggestion that, but for the illegal registration of 200 black students, they might have recruited white students from other sections of the city to attend Lee overlooks the fact that the recruiting season had ended as of opening day. (d) New English High School. In September 1973, English High, which is located in the Back Bay Fens section of the city near several colleges, hospitals and museums, was moved next door into a new $24,000,000 facility ten stories high, the first new high school opened in Boston in 35 years. The transfer did not materially affect racial segregation. However, it came only after a single justice of the Supreme Judicial Court had nullified a 3-2 vote of the school committee awarding the facility to another high school, Girls Latin, and the events leading up to it bear on the issue of defendants’ intent. The new building would accommodate roughly 2,000 students. The enrollment at both English and Girls Latin were almost identical, just short of 1,200 students each. The new building was designed and constructed to house English, with special facilities for courses in business, merchandising, electronics, carpentry, motor repair, and other courses which would not fit the Girls Latin college preparatory curriculum. The new building was constructed with 65% state financial assistance under plans formulated in 1967 and 1968 to reduce racial imbalance. The single justice found on all the evidence presented to him that the defendants made a commitment to the state board that English would be housed in the new tower facility upon its opening, but intended by their vote of April 23, 1973 to exclude English from the tower facility upon its opening. Substantially the same evidence was presented to this court when, after trial the case was reopened on plaintiffs’ motion, and we agree with the state court’s findings. Why did the school committee try to renege on its commitment to the state? Plaintiffs contend that it was because the composition of the student body at English had changed from approximately 20% black in 1967, when the new building was planned, to over 80% black in 1973 when, on the eve of its opening, it was awarded to Girls Latin, 89% white. Plaintiffs have requested a finding that the committee placed the black students at English “in the position of what may be described as second-class pupils”, citing Lee v. Macon County Board of Education, 5 Cir. 1971, 448 F.2d 746, 754 n. 12 quoting Brice v. Landis, N.D.Cal.1969, 314 F.Supp. 974, 978. Plaintiffs’ requested finding raises a question whether blacks were denied educational opportunity, cf. Hobson v. Hansen, D.D.C.1967, 269 F.Supp. 401, aff’d sub nom. Smuck v. Hobson, 1969, 132 U.S.App.D.C. 372, 408 F.2d 175, which we do not reach because the committee was enjoined by the state court from carrying o