Full opinion text
MEMORANDUM OPINION AND ORDER WILLIAM E. DOYLE, Circuit Judge. This is one more (and hopefully the final) episode in the Denver school desegregation case. The object of the present trial has been determination of a just, equitable and feasible plan for the desegregation of the schools in accordance with the mandate of the Supreme Court requiring elimination of invidious discrimination and the deprivation of equal educational opportunity. The scope and magnitude of the problem is evidenced by the numbers and ethnic origins of students as of September 28, 1973. In the elementary schools there were 46,060 students, including 17.6% black, 27% Spanish surnamed and 54.1% Anglo. The total enrollment in the junior high schools on the same date was 21,018, including 18.5% black, 24% Spanish surnamed and 56.6% white. The senior high schools totaled 20,542. The percentage of black students was 17.3%, that of Spanish surnamed students was 17.8% and that of Anglo students was 63.8%. Segregation exists in minority schools on the one hand and non-integration of Anglo schools on the other throughout the District. There tends to be extreme concentrations of minority students at the north end of the District and equally high concentrations of white students in the middle and progressively to the south part of the District. In general, Hispano (Chicano) families live on the west side of the District. Here again, there are highly concentrated schools, although many of the schools even though segregated are somewhat less concentrated than the black schools. Some of these Chicano schools lend themselves to integration without transportation. It is to be noted that the School District and the city are coterminous and have an area of 100 square miles. The cause has been in litigation since the action was filed in June 1969. Following a preliminary trial, a partial desegregation plan was adopted in the northeastern sector of Denver. This was a plan which had been first adopted by the then School Board. Soon after adoption of the plan by the Board, there was a School Board election which resulted in two of the members of the School Board who had voted in favor of the plan being defeated. Immediately the newly elected members brought about the repudiation of the Resolutions which would have produced partial desegregation. This triggered the filing (in June 1969) of the present suit. A hearing on a preliminary injunction was held and various subsequent trials and hearings were conducted on the merits and on the adoption of an appropriate plan. At the same time, there were circuit court appeals, and the cause has been before the Supreme Court of the United States for partial as well as full-scale review. See Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). The published decisions showing some of the background leading to the present controversy are set forth below. Writing for the majority of the Supreme Court Mr. Justice Brennan noticed numerous evidences of pervasive de jure segregation and reversed the cause for the purpose of a determination by this court as to whether the de jure segregation which had been found in the northeastern quadrant of Denver was independent, isolated and unrelated to the segregation conditions present in the rest of the School District. Following the Supreme Court decision which was rendered in June 1973, rehearing denied, 414 U.S. 883, 94 S.Ct. 27, 38 L.Ed.2d 131 (1973), and the remand, a further evidentiary hearing was held in accordance with the remand. In its December 1973 decision, using the guidelines which had been furnished by the Supreme Court decision, this court ruled that the Park Hill segregation was not an isolated and independent condition and consequently that it was to be concluded (from the Supreme Court mandate) that the entire system was subject to the identical condition present in Park Hill, i. e., de jure segregation, and that this (in accordance with the Supreme Court’s decision) required that there be desegregation “root and branch.” Following this decision, a further pretrial hearing occurred on December 17, 1973. Each of the parties was given approximately 30 days from the date of the December 17, 1973 hearing to submit a plan for the desegregation of the Denver schools. Subsequently, such plans were duly filed, as were objections by each of the parties. At a further trial of two weeks’ duration from February 19, 1974 to March 4, 1974, evidence was presented with respect to the tendered plans. The principal parties offered evidence in explanation and support of their tendered plans and offered in addition evidence criticizing the plan of the adverse party. Various intervenors representing virtually all possible viewpoints in the community presented testimony and exhibits as to their particular problems arising from possible adoption of one or the other of the plans. THE SCHOOL DISTRICT’S PROPOSED PLAN The School District’s plan which was entitled “A Plan for Expanding Educational Opportunity in the Denver Public Schools” has four sections. Section I deals with integration of the professional staff through reassignment and retraining ; II with integration of the student body and changes in the use of facilities; III with integration of the student body through new programs; and IV with integration through programs, activities and related improvements. The percentage guides for desegregation adopted by the Board were a minimum of 25% Anglo in each school and a maximum of 75%. Applying those figures it said that there existed a total of 53 elementary schools within the range and thus by this standard integrated. There were (said the plan) 17 schools which had less than 25% minority students and a total of 22 schools which had a predominantly majority percentage of Anglos, that is to say, in excess of their 75% maximum. The plan sought to close eleven schools and transfer the students attending these schools to other schools for the avowed purpose of improving either integration or educational opportunity. In addition to the eleven elementary schools which were recommended to be closed, the Board proposed to close one junior high school and older sections of two elementary schools. As a result of all proposed closings there resulted a transfer of 4165 students to other facilities. As a result of the School District’s proposed elementary school closings and the reassignments, there were fifty-four schools (instead of the former fifty-three) with an Anglo enrollment of twenty-five to seventy-five percent. There were thirteen schools not touched which remained predominantly minority in that their Anglo enrollment was less than twenty-five percent (and in most instances substantially less). Fourteen schools continued to have concentrated majority or Anglo percentages. Thus, the plan made no effort whatever to desegregate or to integrate the above schools except for the three week, half-day sessions each semester at the enrichment center. As noted, the School District made some effort to integrate several less highly concentrated schools by the closings in the central part of the city. Following is the School Board’s summary analysis of school closings and resulting enrollment figures: WESTWOOD Westwood’s 603 pupils, 35.3% of which were minority, would be transferred to Force, Godsman, Goldrick and Schenck. The Anglo percentage at Force was reduced from 72.3% to 63.2%; at Godsman, from 73.2% to 62.6%; at Goldrick, 75.0% to 68.9%; at Schenck, from 64.4% to 58.9%. Thus, at best the closing of Westwood and the transfer of students brought about a slight reduction of the Anglo percentage in these schools. SHERMAN Sherman School, with an Anglo percentage of 61.1% was proposed to be closed and its 208 students were to be transferred to Fairmont which had an enrollment of 647. As a result of this, Fairmont’s percentage of Anglo students would have been raised from 15.3% to 26.4%. BOULEVARD The Board also proposed to close Boulevard School which had 27.0% Anglo enrollment and 259 total students. The proposal was to transfer the Boulevard students to Ashland with the result of decreasing the Anglo percentage in Ashland from 32.1% to 30.4%. CROFTON Crofton Elementary School was proposed to be closed and its 285 minority students of a total of 287 were to be reassigned to Bradley, Ellis and Fallis. The Anglo percentage at Bradley was thereby reduced from 93.2% to 83.7%. The Anglo percentage at Ellis was reduced from 81.9% to 66.8% and the Anglo percentage at Fallis was reduced from 86.7% to 74.1%. EBERT Ebert School with an Anglo percentage of 10.1% of 268 students was proposed to be closed. Its students were divided up among Lincoln, Steele and Washington Park Schools. The Anglo percentage at Lincoln which totaled 76.3% was thereby reduced to 69.1%. That of Steele which had been 70.6% was reduced to 59.1%. That of Washington Park which had been 83.0% was reduced to 66.1%. MOORE It was proposed that Moore Elementary School would be closed and its 425 students, 72.7% of which were Anglo, were to be transferred to Hallett School which had an Anglo percentage of 19.8%. This closing and reassignment resulted in Hallett’s becoming a desegregated school with a 55.9% Anglo enrollment. STEVENS Similarly, Stevens School with 69.4% Anglo students and a total number of 278, was proposed to be closed and its student body was assigned to Stedman School with 169 students and a 5.9% Anglo percentage so that the acquisition gave Stedman 396 students, 48.2% of which were Anglo. COLLEGE VIEW It was recommended that College View School with a total of 343 students, 64.7% of which were Anglo, should be closed and its students assigned to Gust School which had 448 students and an 81.0% Anglo enrollment. This closing and reassignment gave Gust a total of 791 students, 74.0% of which were Anglo. EMERSON Emerson Elementary School with 172 students, 54.1% of which were Anglo, were in the plan to be assigned to Wyman School which had 273 students, 27.5% of which were Anglo. The resultant number and percentage for Wyman was 445 students, 37.8% Anglo. ELLSWORTH Ellsworth with 91 students, 64.8% being Anglo, was to be closed and its entire student body assigned to Steck School which had 335, 77.6% being Anglo. The result of this transfer was that Steck would have had 426 students and an Anglo majority of 74.9%. ELYRIA Elyria School was to have been closed with 91 students, 16.5% of which were Anglo. It was proposed that these students be assigned to Swansea, 29.5% being Anglo. The resultant student body of Swansea would have been a tptal of 725 students, 27.9% of which would have been Anglo. Additional proposed closings include the old buildings at Columbine School, a totally black school. The Board proposed that 225 of Columbine’s students be bused to predominantly white schools resulting in a projected enrollment of 524 black students in the remaining new building. The Board would also close an older section at Mitchell School to be razed and its minority population of 97.1% would remain in the facilities constructed in 1964 and 1974. Similarly, the older sections of Whittier would be closed. Two hundred and sixty of its students were to be bused to predominantly Anglo schools, leaving 352 minority students with the exception of 1.4% Anglos. Enrichment Centers The other important aspect of the School Board’s plan is the creation of so-called educational enrichment centers, section IV. These undertake special programs in an integrated setting. Students from surroundings areas would be bused to one of the enrichment centers for a period of three weeks for half days each semester. Basically, this would serve as the integrating experiance for the students in the concentrated minority and Anglo schools which, as noted above, were not directly affected by the school closing program. At the junior high and high school levels no effort was made to carry out any desegregation programs. At the same time, Morey Junior High, a centrally located school, would have been closed under the plan and would have served as an enrichment center for the segregated minority schools and the non-integrated Anglo junior high schools. Again, special programs were to have been offered for three week periods on a half day basis at this enrichment center and transportation was to have been provided by the School District. The Board’s plan also' goes into some detail in describing the programs which have developed and are now developing in some of the minority schools such as Cole and Manual. Its view is that these also compensate at least in part for the continued segregation in these and other schools. THE PLAINTIFFS’ PLAN The plaintiffs’ program is entitled: “Proposals for District-Wide Desegregation and Quality Education.” The several components include desegregation of students, faculty, administration and staff; integration of students, faculty, administration, staff and parents; adequate explanation to and education of the entire community, that is, explaining the reasons for and the purposes of the plan and, similarly, education of teachers and administrative personnel; installation of relevant and necessary curricula to improve the quality of the education; provision of supportive services such as transportation, counseling, nutrition, health and discipline; equalization of facilities and, finally, ongoing monitoring. It states that its crucial aspect is reassignment of students so as to bring about a desegregated unitary system. Those elementary schools which are presently integrated under the plaintiffs’ plan would not be subject to student reassignments. The plan would, in addition, discontinue those desegregation orders which have been heretofore given by this court. In thus starting anew it seeks to bring about reassignments which are equitable, that is, which equalize the burdens of busing between minority and majority students. There would be no reassignments as to the kindergarten children. Voluntary open enrollment would be discontinued. The pairing or clustering of elementary schools in order to carry out desegregation is its most important aspect. The manner of pairing calls for dividing the grade structure so that grades 1—3 are to be put together in one school and 4-6 in another. Or grades 1 and 2 would be in one pairing and grades 3-6 in another. Alternatively, grades 1-4 would be put in one group and grades 5 and 6 would go into another. Then, all students in one group of grades would go to one school and all students in the other group of higher grades would go to the other school in the pair. In the situation where three or four schools are clustered the same approach would be followed, whereby particular grades would go to one school or the other. Thus, each school cluster would entertain a limited number of grades. Here again, more than one school might be offering grades 1-3, for example, or grades 4, 5 and 6. Thus, the divisions would be along this line, and according to the plaintiffs’ plan this would furnish more flexibility in that it would allow desegregation of a large school by use of schools with a smaller student enrollment. Actual pairings and clustering are set forth in the plan for 70 elementary schools. Obviously, this requires a great deal of transportation. It is said that the net increase in transported elementary children would amount to an estimated 12,257. At the junior high level the number of children transported would be 7,247, or 9,728 if current hazard transportation is continued. Plaintiffs’ plan proposes to desegregate the junior high schools by continuation of the classifications that are contained in connection with the elementary schools. Thus, the paired schools would be assigned to the same junior high school. This would insure, so the plaintiffs contend, a continuity of the same students throughout elementary school and junior high. Recruitment The plan also calls attention to the small number of minority teachers, particularly of Chícanos. For example, there are only 3.3% Chicano teachers in the elementary schools, 4.0% in the junior high schools and 3.5% in the senior high schools. The percentage of black teachers, although somewhat higher, being 10.8% in the elementary schools, 9.9% in the junior high schools and 5.8% in the senior high schools, is also considerably below the ethnic percentages. Plaintiffs’ plan recommends that adequate numbers of minority faculty and other personnel be assigned to schools which are to receive minority students under any plan adopted. It also recommends an affirmative program for employing black and Chicano teachers and administrative personnel. It seeks 27% Chicano teachers at the elementary level and an appropriate number at the other levels based on the percentage of Chicano students. It opposes assigning a token minority teacher to a school as being ineffective. It also recommends the hiring of minority aides, including student teachers, parents and teacher assistants to bring the minority representation and school personnel into some kind of balance. Inservice Training The plan also recommends the training of school personnel in such fields as human relations, minority history and culture, administration of discipline, teaching and working in an integrated environment and an ongoing program for all new personnel. Stressed also is the necessity for compelling attendance at such training sessions. The need to obtain financial assistance for these training programs by applying to HEW, Colorado Department of Education, the National Education Association and the Colorado Education Association is stressed. It is recommended also that the District use all community resources capable of helping in the preparation and implementation of the plan including the Chamber of Commerce, the Junior Chamber of Commerce, the League of Women Voters and other similar organizations. Also recommended is the commencement of the orientation program as soon as possible including the scheduling of visits to the schools by the students who are going to be reassigned, so that they may become acquainted with the building as well as the teachers and counselors. Bilingual and Multicultural Programs In addition to their desegregation plan, plaintiffs have endorsed a proposed educational plan for the Denver Public Schools submitted by intervenors Congress of Hispanic Educators. This “Cardenas Plan,” which was prepared by Dr. Jose Cardenas, is directed toward dealing with the problems which minority children, and in this instance particularly Chicano children, encounter in today’s typical urban American school system. Broadly stated, Dr. Cardenas’ educational plan is based upon his contention that modern American schools are oriented primarily toward the education of middle class Anglo children, and that the resulting programs are frequently incompatible with the needs and characteristics of minority children. The plan groups the incompatibilities experienced by minority children into the broad categories of poverty, language, culture, mobility, and perceptions. The thrust of the plan is that the educational system should be altered where necessary to eliminate these incompatibilities, rather than requiring the minority child to reject his own cultural, linguistic, economic and other characteristics in order to adapt to an educational program imposed upon him. A more detailed analysis of the bilingual approach is appended hereto. COMMENTS ON THE PLAINTIFFS’ PLAN As is apparent from the above description, the plaintiffs’ plan is what is known as a pairing plan calling for the busing of one-half of the student population in each of two schools or a total of one-half in a group of clustered schools. The difficulty we find in possible adoption of this is, first, that it is too tightly structured. It undertakes to govern the child from the time he commences the first grade in elementary school until he has completed high school. Each component is interrelated with the other so that if for any reason one part fails it may well have repercussions on the remainder of the program and it could create chaos. Its complexity would require a resident expert. Second, it involves extensive busing and does not distinguish between busing the minority and majority students. Thus, a movement of minority students to a non-integrated Anglo school would oftentimes carry not only minority students but many Anglo students as well. The opposite would also be true. The movement of Anglo students would in many instances carry with it minority students to what had been a minority school. Third, the way the plaintiffs propose the plan, there is no room for adjustments because the teacher at the minority school, for example, would be automatically reassigned to the majority school to teach that particular grade. At the receiving school there would be at least two first grade classes, two second grade classes and two third grade classes, so it would be impossible for any students to remain at the neighborhood school. The system would work better in schools which are highly concentrated. The criticisms mentioned would not be significant if there were one percent or two percent of the opposite race transported. In our school system we have some schools of this character, but these are the exceptions. In most schools the concentrations, although often heavy, are less extreme and therefore a large number of Anglos would be- bused with minorities. More efficiency would exist as well as less basis for criticism if the transportation system were confined to either minorities or Anglos. The pairing plan has some obvious advantages. The busing is shared equitably. The plan seeks to systematically avoid busing any person or group fbr a longer period than necessary. The advantage most often emphasized is that the groups of students will remain together, notwithstanding busing, as they pass through the various grade levels in the same way that they would if there were no desegregation plan. Furthermore, the frustration of transportation may be somewhat reduced from the fact that under the plan the local school no longer serves particular grade levels so that there can be no class at the old school. One obvious advantage which the plan utilizes is the continuing relationship between the paired neighborhood school or home school and the receiving school or schools. This lends itself to some community support essential to any school system. In the final analysis, however, because of its extensive transportation of students, plaintiffs’ program is unacceptable as presented. COMMENTS ON THE SCHOOL DISTRICT’S PROPOSED PLAN The special education programs which are suggested involving the enrichment offerings together with the open school concept and the special programs designed for use in segregated schools are desirable, but the emphasis is on enriched education and can scarcely be considered a plan for desegregation. Thus, the transporting of students from concentrated schools to enrichment centers for three weeks on a half day basis to intermingle with other ethnic groups while engaging in special programs does not pretend to be a desegregation plan. It impresses us, on the contrary, as a plan which is more designed to avoid adoption of a desegregation plan. By closing schools in the center of the city it renders integration a virtual impossibility because it isolates the segregated schools north from the non-integrated schools in the south. For this reason alone, the plan must be rejected. The numerous school closings which are an integral part of the plan likewise make little contribution to desegregation. Its failure to deal adequately with the problem or to desegregate heavily concentrated schools causes it to fall far short of an acceptable effort designed to satisfy the Supreme Court mandate. Its recognition of the need for adding minority teachers and for their assignment in all of the schools is desirable. Similarly, its provision for in-service training of teachers and staff, and its enhanced efforts to understand minority students are also praiseworthy. But little in the way of specific programs for accomplishing these objectives are to be found. But in the final analysis, the plan must be condemned because of its tendency to further isolate the minority students in concentrated minority schools in the north from the new majority schools which have been concentrated in the new residential areas of the south, the effect of which would be to render integration highly difficult. INADEQUACY OF BOTH PLANS Having considered the various aspects of each proposed plan in some detail, we conclude that neither proposal is acceptable in present form. The plaintiffs’ plan meets the constitutional standards for desegregating a dual system, but it achieves that goal at the expense of excessive busing. In pairing some of the elementary schools, for example, plaintiffs were inattentive to geographical considerations, thereby causing unnecessarily long bus rides and thus undermining the feasibility of the plan. Plaintiffs’ plan is unduly complex and unadaptable to Denver’s segregation problem. Defendants’ plan is subject to more serious objections: 1. It is, in our view, unconstitutional and equitably defective. A basic inadequacy is found in its definition of a desegregated school as one having an enrollment of 25-75% Anglo. A school, for example, with 25% Anglo and 75% minority population continues to be a recognizable black or Chicano school; hence, the plan would continue the dual system. 2. The educational opportunity in the minority school has been proven in our present trial as well as in previous trials to be inferior to that in the majority schools. To continue segregation increases the likelihood of continuation of inferior educational opportunity for the minorities. The effort by defendants to achieve a modest level of integration through the expedient of closing 11 inner city schools and opening four elementary and one junior high enrichment center fails to achieve integration. It may succeed in improving the educational opportunity. This improvement could, however, be accomplished without transportation. 3. The schools sought to be closed are inner city schools which are conceded to be structurally sound and are located in neighborhoods which are desirable to be maintained as family neighborhoods. The closing of the schools would inevitably result in changing the character of areas which are favorably located for achieving integrated neighborhoods and integrated schools. If these closings were allowed to be carried out, families would be discouraged from moving into the central area of the city. The closings tend to waste resources and facilities without providing counterbalancing improvement. Finally, the enrichment center concept is not here condemned. The administration is encouraged to continue innovative approaches to arts and sciences. However, this should be advanced throughout the system and not as a part of a very limited integration effort. As it is now presented, the enrichment center concept provides for such a limited part of the educational experience that it must be regarded as insubstantial. It cannot be said that all of the school closings are unjustified. Thus, where it appears that the facilities in question need to be closed for reasons other than desegregation, there appears to be no reason to prevent the closing. This is true of Elyria, part of Whittier, part of Columbine and Mitchell. These latter three proposals would not close the school in its entirety and thus deprive the neighborhood of a school. In view of the fact then that neither plan promised to fulfill the court’s needs, it became apparent at the end of the hearing that a fresh effort was needed. The court gave the parties its own thinking and guidelines and commenced an independent study for the purpose of developing a workable plan or program. THE LEGAL AND FACTUAL NECESSITY FOR THE COURT TO FASHION A PLAN In Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), the problem of an uncooperative Board of Education was present just as it is here. The Supreme Court there pointed out that the school board has the obligation to desegregate a dual school system and to produce a sufficient desegregation plan, and that only after it is apparent that the district will not discharge this duty is it appropriate for the court to take the initiative. With this in mind, we have given the Board every opportunity to discharge its duty but to no avail. Following the trial which tested the sufficiency of the plaintiffs’ and School Board’s plans, and following the court’s conclusion that both plans were inadequate, an effort was made to have the parties collaborate on implementing suggested guidelines furnished by the court. This, however, failed. The court ordered the professional staff of the School Board to present certain work-ups and in response to these orders there were some submissions, but the court found it impossible to work with the Board in the preparation of a plan much less have the Board do it because of their adamant opposition to any kind of a scheme which called for transportation. Indeed, at the March trial the individual Board members made it clear that they would oppose any plan (including their own) which made provision for busing. Minority members of the Board did not hold this view, but this was of no aid in obtaining production of a valid plan. The present attitude is not anything new because throughout this litigation the Board has had fairly much the same approach. During this time opposition to busing has been exploited as a political issue and the Board has steadfastly refused to take any action which might compromise its position in this regard. But even though it has seemed clear throughout that the Board would continue its refusal to act, we have given them repeated opportunities to carry out their obligation to fulfill requirements of law, but each of these efforts has failed. In these circumstances the court has no option but to take the initiative. See Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968) and Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II). In the latter case the Supreme Court said that in default of the School Board’s performing acceptably, the court must exercise its equitable powers to provide a plan of its own which will provide constitutional relief. In Swann, supra, at 15-16, the Court said: If school authorities fail in their affirmative obligations under these holdings, judicial authority may be invoked. Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies ... In seeking to define even in broad and general terms how far this remedial power extends it is important to remember that judicial powers may be exercised only on the basis of a constitutional violation. Remedial judicial authority does not put judges automatically in the shoes of school authorities whose powers are plenary. Judicial authority enters only when local authority defaults. The record in this case is replete with evidences to support the conclusion which the court has reached that further efforts to persuade, coerce or otherwise force the School District to develop a plan for desegregation would be unavailing and that, therefore, it has become essential for the court (with the aid of an expert) to seek a just, equitable and feasible plan. Once this became apparent the court requested Dr. John A. Finger, Jr. to proceed with the formulation of a proper plan. Accordingly, the Board has for the past four years and even in the recent past, notwithstanding the mandate of the Supreme Court of the United States, consistently resisted and opposed every desegregation effort and has sought to avoid the effects of such orders. The court finds, therefore, that the Board of Education has not in the past shown a willingness to formulate a desegregation plan; that it now refuses to do so; and that according to every probability it will continue to avoid and refuse to desegregate the school system. The court finds that further efforts to compel them to do so would be unavailing. THE STANDARDS APPLICABLE TO THE ADOPTION OF A DESEGREGATION PLAN We are cognizant that the primary object of desegregation is to overcome the invidious discrimination found to exist in a dual system and simultaneously to bring about equality of education. In carrying out this objective, the effort must be to adopt reasonable and meaningful measures and to avoid unnecessary impositions and burdens on both minority and majority children. The Supreme Court has had occasion to consider the adequacy of programs in both Green, supra, and Brown, supra. In Green the keystone of the plan was to allow each student to freely choose the school which he would attend. It was there contended by the School Board that to reject the freedom of choice approach required the Fourteenth Amendment to be construed as demanding compulsory integration. The Court pointed out that Brown II held that the inquiry must be whether a particular plan brings about the dismantling of the dual segregated school system. It appeared in the record in Green that the freedom of choice approach had produced very little, if any, desegregation which was there present. The Supreme Court rejected it. From this it is to be concluded that an important standard in judging any plan is its ability to accomplish the task at hand. It is said that it must provide meaningful assurance of prompt and effective disestablishment of a dual system. The measures to accomplish this must be effective. It seems obvious then that a system which depends wholly on freedom of choice could not effectively change the identity of a school from minority to Anglo or vice versa. In Brown II, supra, the Supreme Court emphasized that in fashioning its decrees the court is to be guided by equitable principles, meaning that the decree should be flexible and adjusted to public and private needs—in other words, that full use of traditional attributes of equity power be employed. The Supreme Court said that the trial court may take into account the public interest in the elimination of obstacles to adopting a unitary system. The Court also said that vitality of constitutional principles is not to yield simply because of disagreement with them. In Swann the Supreme Court, through Chief Justice Burger, reviewed the prior cases which had sought to develop guides for desegregation and particularly noted the necessity for doing away with dilatoriness and observed also that the court in Green had emphasized the need for a plan which was workable and gave some promise of success. In other words, the plan must promise realistically to work and, secondly, to work now. This expression from Green was endorsed once again in Swann. A school desegregation case, said the Supreme Court in Swann, does not differ fundamentally from other equitable cases in which constitutional rights have been violated. The Court added: . The task is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution. 402 U.S. at 16, 91 S.Ct. at 1276. Finally, the Supreme Court in Swann, recalled that in Green the terms “feasible,” “workable,” “effective” and “realistic” were proper qualities for testing a plan and determining whether it will work now. For example, the scope and extent of transportation would be tested on these bases; bus transportation as a means of carrying out the desegregation was expressly approved in Swann. Accordingly, then, the basic criterion is that the plan shall be meaningful and therefore effective. It must be a feasible and realistic plan. Furthermore, it must be fair in relationship to the objectives to be achieved and the manner of achieving them. Specific essential criteria to a viable plan are appended hereto in outline form (Appendix B). GUIDES TO FINDING A PLAN It is often said that desegregation can be brought about without furnishing transportation. In some instances it is true that rezoning of schools does bring about integration. Where this is possible it should be carried out and busing should be resorted to only after other integration methods have failed. Once these rezoning methods have been exhausted, a transportation plan (or plans) is essential to effective desegregation. In our case every rezoning effort has been made. The court has sought a plan which would minimize busing. It is important to emphasize that the School District presently transports some 14,500 pupils. Most of this is because of a lack of school, distance or hazard. The net gain in number of children transported under the plan which is proposed will raise the total to about 20,000 or slightly more, a net gain of an estimated 6,000. Assignment of Students Now Being Bused Many thousands of elementary and junior high school students are being bused at the present time because of long distance, hazardous traffic conditions or lack of a neighborhood school. Where this condition exists and pupils are being transported to a somewhat distant school, rezoning should be carried out so as to assign these students to a neighborhood school where possible. If busing is necessary after the rezoning efforts, the pupils should be transported for the purpose of aiding the desegregation of that school. Similarly, where minority students are being bused for distance or other reasons, it is believed that they should be bused to an Anglo school and not to a minority school to add to the minority population of that school. The same principle applies to the transfer or assignment of Anglo students to a distant Anglo school along with minority students. This distinction has not been made in instances of mandatory busing by the School District. The tendency has been to pick up and bus groups which are preponderantly Anglo and minority and to do so without separating them. This is to be avoided. Anglo families, for example, who have moved to minority neighborhoods are not to be bused back to Anglo schools in other neighborhoods. Similarly, minority families who have moved to Anglo neighborhoods are not to be required to be bused to minority schools along with Anglo children who are being transported to these schools for the purpose of desegregation. At present, with computer printouts showing the exact composition by grids of minority and Anglo students, there is no longer any justification for transporting groups in an area and doing so regardless of the ethnic composition of that area. The transfers should operate on a specific basis. Voluntary Open Enrollment The School District has sought to bring about desegregation and integration by use of volunteers. The guideline or standard for this has been whether the individual volunteer seeking transfer and transportation to another school would aid in the integration or desegregation of that school. Thus, the question was whether he was seeking transfer to a school in which he would be a member of a minority group. This program has had some limited success. But there will be a decreasing need for it in a system which is desegregated. The court is reluctant, however, to abolish it at this time inasmuch as it may have some remaining usefulness. But the School District is not to allow it to be used to defeat or avoid the desegregation plan which the court adopts. This would be true in the secondary schools as well. After the program is adopted, some further attention must be given to whether this voluntary desegregation is capable of contributing to the total program. Percentage and Numbers Ratios as Guides for Desegregation and Integration The court is aware that rigid adherence to percentage figures in this regard is not only undesirable but invalid. At the same time, some range of percentages is necessary in order to determine whether a school is segregated or is nonintegrated. Admittedly, the figures which are to be used are guidelines only, and for reasons that are compelling they are and have been disregarded. For elementary schools the court has considered desirable a 40% minimum percentage of Anglo students, and it has considered the permissible maximum range to extend to 70% Anglo population. In the secondary schools the minimum figure that has been used is somewhat higher, and it has been considered desirable to have 50-60% Anglos in some instances. Here again a cautionary word should be added, and that is that in some instances it seems desirable to depart from these percentages. Thus, in some of the schools which have a preponderant Chicano population it has seemed to the court more desirable to pursue bilingual and bicultural programs than to change the numbers. Home or Neighborhood School Pairing The object of this program is to provide the educational values which are present in the desegregated setting while at the same time preserving the advantages of having a home or neighborhood school. In the plan which has been adopted, permanent assignments from minority to Anglo schools and vice versa have been made in many instances for the purpose of bringing about desegregation and integration. In some other instances pairings between home schools and one or more receiving schools on a less than full-time basis have been employed. This is a daily program in which the minimum time which the student spends in the receiving school is one-half of the school day plus the lunch period. This is more refined than school pairing in that the pairing is by classes. Thus, in the segregated school one-half of the students in a class are transported to an Anglo or majority school and simultaneously one-half of the Anglo or majority students are transported to the minority school. The student spends a major portion of each day at the receiving school, but he commences his school day at the home school and he completes his school day at that school. The part of the day which he spends at the paired school could vary in order to get maximum value from vehicles and in order to avoid congested traffic. For example, the transfer could start immediately after the commencement of the class in the morning or from mid-morning recess to mid-afternoon recess, but in all instances the transported student would spend his lunch period at the paired school rather than the home school. We see the following advantages in this method: 1. It serves to break the isolation which exists in segregated schools and exposes the pupils to an integrated or desegregated school setting during the heart of the school period, 2. it gives the student an identifiable ioca] neighborhood school to maintain as an anchor. 3. The children have a neighborhood school for the purpose of extracurricular activities. 4. The local school is maintained as a social institution (and a playground) within the neighborhood. The parents in both minority and Anglo areas retain a nearby facility and institution in which their children are enrolled with which they have personal contact. This serves as a focal point for the PTA organization and other groups, whereby parents can exert an influence on the school, and the school, in turn, can have community support. It avoids the problems which exist when a child is assigned to a school in a distant area. In this situation the parents find it difficult to relate to the distant school. In the subject program the parents at the home school and at the paired school can exert joint influence in seeing to it that both schools are adequate. 5. The home school pairing arrangement also furnishes a flexible setting in which school officials can institute special programs in the home school to aid the desegregation process or make necessary preparation for the upcoming program in the receiving school. In the home school there could also be compensatory education, bilingual or English language training or similar specialized efforts which promise to be valuable to the home school group. 6. The home school pairing arrangement should ease the logistic burden of school officials. Children are picked up at the neighborhood school and are delivered back to that school. Transportation being from school to school, the bus will not be required to make numerous, time-consuming pick ups. Also, the buses used for home school pairing will often be available for transporting students who are assigned directly and who need to be transported at the beginning and end of the school day. The home school pairing group will be transported during the day. The plan adopted has arranged pairings which do not require lengthy bus transportation, and thus it should not be disruptive. Nevertheless, some extension of the school day may be justifiable inasmuch as the busing is not occurring at the end of the day. Hence, in effect, the time on the bus could be made up at one end of the school day or the other. Should this plan prove impractical or disruptive so as to “significantly impinge on the educational process,” see Swann, supra, at 30-31, the framework established could always be used for full-time pairing or for an assignment system and nothing will have been lost. Reassignment In some instances it is necessary to reassign students in order to integrate rather than to pair schools. Even in these instances it is desirable for the students to be picked up at the home school and deposited there also. Where, however, there is no home school children must be gathered in neighborhood areas and returned to those places. We refer to students who are now being bused for distance, lack of school or hazard. Support Programs Any viable, feasible program which will satisfy the basic purpose of furnishing an equal educational opportunity for all should have a number of attributes: A. There must be adequate preparation of student body, parents and teachers. Group training programs within the neighborhoods must be carried out so that there can be requisite preparation, whereby problems will be avoided. The School District’s proposals set forth in staff studies, Part III, are reasonable and should be implemented to the extent that there is no delay in activating this plan. B. Where distances are great, transportation should be furnished. The School District’s standards of one mile for elementary schools, two miles for junior high schools and three miles for high schools seem generally to be reasonable and are adopted. The School District should continue to provide all collateral services such as hot breakfasts, hot lunches, etc., for children who need them. C. There must be an affirmative hiring program so as to increase the number of minority teachers in all of the schools. The small number of Chicano teachers is a particular problem and a tangible effort must be made by the District to increase these numbers. D. To facilitate the teaching programs in the home school pairing program, it is desirable insofar as possible that the transported, classes be accompanied by a teacher’s aide. This would aid in having a coordinated effort. ADOPTION OF FINGER PLAN During the period from March 4, 1974, the date the first hearings were completed, to March 27, 1974, at which time hearings were resumed, there were numerous conferences and discussions between the lawyers and the court regarding efforts to develop an acceptable plan. These were all unproductive. Finally, a plan was formulated by Dr. John A. Finger, Jr. An alternative was submitted by plaintiffs. The Board of Education submitted proposals and work-ups in response to court orders. Following receipt of these submissions, hearings to consider the feasibility of the Finger plan and to consider the other submissions were held on March 27 and 28, 1974. Dr. Finger testified on direct and cross-examination as to his plan, and counsel for plaintiffs and defendants described and highlighted their offerings. After hearing this evidence the court now concludes that the Finger Plan satisfies the court’s guidelines and criteria and should be adopted. In General The plan is comprehensive and thorough. Moreover, it is a result of extensive, painstaking work involving the rezoning from computer grid readouts so as to fully utilize equitably and efficiently the ethnic populations within the several areas. It seeks to limit transportation except where absolutely necessary and to limit the distances to the minimum. Use of Rezoning First: The elementary schools: It exhausts every possibility for integration through rezoning. This is particularly true in the west side of Denver. As the court has previously noted, the schools in this area are geographically situated so as to permit this approach. Some schools in the other sections have proven susceptible to avoidance of busing by this means. Second: Pairing: A total of approximately 33 schools have been desegregated by classroom or home school pairing (transported to a receiving school for a minimum of one-half time). The schools involved in these pairings are shown below. The School District staff in one of its work-ups suggested that this half day pairing or classroom pairing provided by Dr. Finger and carried out by dividing the several classes in each school in half and transporting one-half minority students to the Anglo school and one-half of the Anglo students to the minority school might better be implemented by transporting entire grades. As noted above, division of grades allows the groups to be alternated each day or each week. Thus, students would not have to be bused every day or it could be planned so that busing would be required only on alternate weeks. One week one-half of the students would remain in the home school and the next week they would be bused to the paired school. Under the School District’s suggestions, grades 1, 3 and 5 of one school could be transported to the paired school and grades 2, 4 and 6 would, at the same time, be transported to the sending school. As a result, one school would be made up of grades 1, 3 and 5 of both schools and the other of grades 2, 4 and 6 of both schools. The next day there could be a reversal. It is said that one advantage of this would be that the teacher of the class being transported would travel with the group and both first grade teachers, second grade teachers, etc., would be in the same school at the same time and could confer. The court’s preference is for the transportation of one-half of each class and the maintenance of six grades in each school. The same general flexibility could be realized by dividing up the several grades, as we have suggested, and having a full complement of grades at each of the paired schools. So also, the groups could travel on alternate days or alternate weeks, for that matter, so that each child could spend 50% of the pairing period at the home school in an integrated or non-segregated classroom. The School District may, however, wish to try out the grade exchange program and the court would have no objection to this procedure. It should be emphasized that this must not be a before lunch or after lunch program. The integrated setting should last through a minimum of one-half of the school period plus the lunch per-iod as well. There can be no compromises on this. It is the court’s view that in the process of pairing, transportation of minority students to a minority school and Anglo students to an Anglo school is to be avoided. Furthermore, in determining the number to be transported it is to be one-half of the lowest number between the two paired schools. Thus, if Doull has 582 Anglos and were paired with Cheltenham which has 464 minority students, the number transported on any given day would not exceed 232. Thus, 232 minority students would be transported to Doull and 232 Anglos would be transported to Cheltenham. Similarly, with Traylor and Greenlee, Traylor has 514 Anglo students and Greenlee has 438 minority students. Thus, the maximum number to be bused would be one-half of 438 or 219 from each school. Third: The other method in this plan for reducing concentrated populations in minority or Anglo schools is the assignment of students from satellite areas. For the most part, these assignments occur in the northern part of the city and go to the extreme southern part or to schools in the middle zone from the northern part. This, then, tends to be one-way busing. The plan seeks to compensate for the fact that the schools in the southern part of the city do not have to bus out of the area by making provision for junior high students to be bused to schools in the north and northeastern part of the city. Therefore, the balance of the burden of being transported is being carried by the minorities at the elementary school level and by the Anglos at the secondary school level, although it is paired evenly in connection with the paired approach (at the elementary level). Fourth: The junior high schools have been desegregated for the most part by rezoning. The very worst problem of concentration and identifiable minority schools is that in Cole Junior High School, which is very nearly 100% black and Chicano; and also in Baker Junior High School, which approaches 100% minority population. Other schools which are almost equally concentrated are Horace Mann Junior High, Morey Junior High and Lake Junior High. Smiley Junior High is a borderline school which is likely to become more minority concentrated. The plan seeks to bring about junior high desegregation and integration first by rezoning. Extensive boundary changes have been made in some instances, but only minor changes have been made in others. For example, Smiley has not been changed extensively and Hill has not been. On the other hand, in the west part of town, Skinner’s boundaries have been changed considerably to aid the condition at neighboring Horace Mann. Similarly, Rishel’s boundaries have been modified as have Lake’s and Skinner’s on the south. It has not been possible to accomplish desegregation altogether by boundary changes, and so the plan in addition creates satellite zones for assignments out of the Cole area and Mann area, and satellite zones are set up in Kennedy Junior High School and also in Merrill and Place. The end result is “root and branch” desegregation of Cole Junior High and of Baker with the aid of Byers and other schools to the south and west of Baker. Cole, which-had a minority population very close to 100%, would under the plan have its population reduced to a total of 40% black and CJiicano and 60% Anglo. Mann, similarly, has been changed so that its minority population is substantially below 50%. Lake also has been reduced so that its numbers and character are drastically changed. More important than the percentages will be the educational efforts to be made in these schools. The District has an opportunity to change the entire character of these minority schools, whereby its students can be prepared for high school on the same basis that students in other areas of the town have been. Thus, an effort can be made to arrest and amend the deficiencies which have existed and which have prevented fulfillment of educational objectives in these areas. Fifth: The high schools: The same kind of transformation is presented at the high school level. The symbolic dual school in the entire system is and has been Manual High School. Not only are its numbers exclusively minority, but it is plain to everyone that it is a black and, to a lesser degree, Chicano school. The staff here has performed remarkably. The effort has been to develop programs within the desires and capabilities of the students and some very fine programs, including the preprofessional programs, have evolved. Those students who wish to pursue a college preparatory program could, of course, do so. In addition, their offerings include such things as airplane construction and house construction. Nevertheless, it was and has been a different or alternative high school, and the effort of this plan is to bring about a metamorphosis, whereby this school will enjoy the same standing and reputation enjoyed by the other fine high schools in the system. The population is changed so that 56% of the students are Anglo. This is largely effected by boundary changes involving East High School and the expansion of the East boundary lines to embrace other areas and the movement southward of other boundary lines. The creation of satellite zones for transportation out and in has also been necessary. The population of East High School is also set at a figure above 55% Anglo. East High School has long been regarded as an outstanding institution. This tradition has been helpful in maintaining it as a good educational institution. It is believed that Manual could profit by being associated on a campus basis with East High, whereby teachers could be exchanged and the students could take some of their courses at one or the other school. Each school should, of course, have its own administrative staff, but there must be also an overall supervisor of the two schools plus a supervisory staff capable of determining the course offerings and transportation needs as well as coordination of the two schools. This would furnish an opportunity to create a joint educational effort unmatched in this city and in this part of the country-—an institution with the very highest educational standards. Manual’s progress in developing premedic, pre-law and pre-engineering ought to be continued and encouraged. No doubt there are other special areas in which it is able to contribute to special objectives. East also could have non-duplicative courses which would attract students who are assigned to Manual. It should be noted that these schools lend themselves to this kind of a program because of their geographic proximity. The distance which separates them is approximately one and one-half miles. It is therefore ordered that East and Manual be consolidated as an East-Manual complex. Adoption of the Bilingual-Bicultural Plan of Dr. Cardenas In view of the very large population of Mexican-Americans or Chícanos in the Denver school system, the Cardenas or bilingual-bicultural approach to the education of this minority group is a very sensible method and to the extent that it can be useful to building bridges between the Spanish and Anglo cultures, it is to be fully utilized. At present some initial effort is being made at the Del Pueblo Elementary School along this line and undoubtedly a good deal has been learned from this pilot or model program. It is the view of the court that this system of teaching should - be installed in Baker Junior High School and West High School, both of which have large Chicano populations. It seems desirable also that it be installed in the Swansea School. Some representatives of the Mexican-American community in this case have expressed a desire not to desegregate the Del Pueblo School during the period that the program is developing. The court can see advantages in this and therefore holds that desegregation is not in its best interests. The Swansea School does not offer any serious segregation problem since it now has approximately 35% Anglo population and thus reassignments are not necessary here either and, again, the bilingual program should be installed at this school. The exact mechanics for implementing this program are not clear and, therefore, the School Dictrict must employ consultants to aid this process. It is recognized that most of our Spanish surnamed or Mexican-Ameriican children are able to speak