Full opinion text
MEMORANDUM OPINION SCHATZ, District Judge. This school desegregation case was filed by the United States on August 10, 1973, under the authority of 42 U.S.C. § 2000c-6(a). Jurisdiction is also present under 28 U.S.C. § 1345. The defendants are the School District of Omaha, State of Nebraska; the Superintendent of Schools for the School District; and the twelve members of the Board of Education for the School District. The plaintiff’s complaint alleges that the defendants have engaged in racial discrimination in the operation of the Omaha Public Schools in violation of Title IV of the Civil Rights Act of 1964 and the Fourteenth Amendment to the United States Constitution. The defendants deny that the Omaha Public Schools have been operated in a manner which discriminates against any students on the basis of race, and affirm the School District’s adherence to a racially neutral neighborhood school assignment policy. The plaintiff’s complaint was accompanied by a motion for a preliminary injunction. A full evidentiary hearing was held, and the motion was denied, United States v. School District of Omaha, State of Nebraska, 367 F.Supp. 179 (D.Neb.1973). Thereafter, certain black children attending the Omaha Public Schools and their parents, representing a class of all other similarly situated black children and their parents, were permitted to intervene as plaintiffs in this lawsuit under Rule 24(b), Fed. R.Civ.P., 367 F.Supp. 198 (D.Neb.1973). The trial of this case was begun on March 4, 1974, and concluded on March 20, 1974. A schedule for the preparation of post-trial briefs and proposed findings of fact was established, and the entire matter was submitted to the Court on June 5, 1974. The Omaha Public Schools have never been operated under a statutorily or constitutionally required dual system. Therefore, the legal principles upon which claims with respect to this school system must be resolved are those set forth by the Supreme Court in Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). Under Keyes, a constitutional violation is found where: 1) There is a current condition of racial segregation; and 2) This condition has been caused or maintained by intentional state action. There is no question here that the actions of the defendants constitute state action. Nor is it open to doubt that there is a substantial degree of racial imbalance within some of the Omaha Public Schools. The issue upon which this litigation is focused is whether the racial imbalance has been intentionally caused or maintained by the defendants. A determination of the intent of a person or a public body with respect to action or inaction on any question is necessarily difficult. In evaluating the evidence introduced at trial the Court has kept in mind certain principles concerning the finding of intent: 1) The burden of proof on this issue lies upon the plaintiff and the intervenors to show an intentionally segregative policy practiced in a meaningful or significant portion of the school system. The burden then shifts to the defendants to show that their actions as to any other segregated schools within the system were not motivated by segregative intent. Keyes, 413 U.S. at 208-209, 93 S.Ct. 2686. 2) There are very few school desegregation cases in which the defendants admit segregative intent. Such intent must then be inferred from objective actions of the defendants. United States v. Board of School Commissioners of Indianapolis, Indiana, 474 F.2d 81 (7th Cir. 1973), cert. denied, 413 U.S. 920, 93 S.Ct. 3066, 37 L.Ed.2d 1041 (1973). 3) There is some dispute among the parties concerning how the Court is to weigh the natural and foreseeable consequences of the defendants’ decisions to act or not to act in any given area. Prior to Keyes, it had been held that school boards were accountable for the natural and foreseeable consequences of their actions, regardless of intent or motivation, United States v. Texas Education Agency, 467 F.2d 848, 863-865 n. 25 (5th Cir. 1972). This view no longer appears to be the law in light of the Keyes emphasis on intent. The Ninth Circuit has specifically so held, Johnson v. San Francisco Unified School District, 500 F.2d 349 (1974); Soria v. Oxnard School District Board of Trustees, 488 F.2d 579 (9th Cir. 1973). But the error reversed in Johnson and Soria was the rejection by the trial courts of the importance of determining intent, not the method of determining it. This Court is of the opinion that the natural and foreseeable consequences of the defendants’ actions are neither determinative nor immaterial, but rather constitute one additional factor to be weighed in evaluating the defendants’ overall intent. Oliver v. Kalamazoo Board of Education, 368 F. Supp. 143 (W.D.Mich.1973). I. BACKGROUND The defendant School District of Omaha has within its boundaries the majority of the City of Omaha, Nebraska, as well as a part of Sarpy County,' Nebraska. A portion of Omaha in the southwest sector of the City is served by School District 66. The schools operated by the defendants, however, are commonly referred to as the Omaha Public Schools. United States census data show that in 1940 there were 12,015 black citizens in Omaha, comprising 5.3 per cent of the population. By 1950 the number was 16,311, or 6.5 per cent of the total. In 1960 it was 25,155, or 8.3 per cent, and in 1970, it was 34,431, or 9.9 per cent. By way of comparison, the percentage of black students enrolled in the Omaha Public Schools has increased from 6.6 per cent in 1940 to 9.4 per cent in 1950, to 14.2 per cent in 1960, to 18.6 per cent in 1970, and to 19.8 per cent in 1973-74. During the 1950’s, black persons in Omaha resided generally in an area known as the Near North Side, bounded roughly by Cuming Street on the south, Wirt Street on the north, 33rd Street on the west, and Florence Boulevard on the east. Census tract information is available which was compiled by the School District of Omaha as required by state law and which shows the concentration of black school age children, ages five through twenty, throughout the City on a scale of less than one per cent, one to twenty-five per cent, twenty-six to fifty per cent, fifty-one to seventy-five per cent, and seventy-six to one hundred per cent. This information shows that in 1952-53, the only elementary attendance zone with as high as seventy-six to one hundred per cent black school age children was the Long school zone. This zone sits almost directly in the center of the Near North Side. The only zones with fifty-one to seventy-five per cent black school age children were Lake, immediately to the northeast of Long, and Howard Kennedy, immediately to the northwest of Long. The only zone with twenty-six to fifty per cent black school age children was Kellom, immediately to the southeast of Long. Various other zones had one to twenty-five per cent black school age children, and they were scattered near the schools above mentioned and in the eastern and southeastern portion of the School District. By 1959-60, there were seventy-six to one hundred per cent residential concentrations of black school age children in the Long, Howard Kennedy and Lothrop (immediately north of Lake) zones. Fifty-one to seventy-five per cent concentration resided in the Lake and Druid Hill (immediately north of Kennedy and west of Lothrop zones). The only twenty-six to fifty per cent concentration was again in Kellom. One to twenty-five per cent concentrations resided on the north and southwest fringes of the above-mentioned schools, in two isolated schools in the central portion of the District, and in a cluster of seven zones in the southeastern portion of the District. By 1969-70, there were seventy-six to one hundred per cent residential concentrations of black school age children in the Long, Kennedy, Lake, Kellom, Lothrop and Druid Hill zones. Fifty-one to seventy-five per cent concentrations resided in the Monmouth Park (immediately to the northwest of Druid Hill). Saratoga (immediately to the north of Lothrop) and Franklin (immediately to the west of Long and Kennedy) zones. Twenty-six to fifty per cent concentrations resided in the Clifton Hill (immediately to the west of Franklin, Kennedy and Druid Hill), Central Park (immediately to the west of Monmouth Park) and Indian Hill (in the southeastern portion of the District) zones. Schools with one to twenty-five per cent concentrations generally bordered the above-mentioned zones. Thus, by 1969-70, the last year for which these census tracts are in evidence, there can be seen a definite increase in the concentration of black school age children residing in the northern and eastern portions of the District, including the area referred to in the 1950’s as the Near North Side, and a gradual increase in concentration in the zones to the west and north of the Near North Side. Also, there was by 1969-70 a small but apparently growing concentration of black children residing in the southeastern portion of the District. II. ELEMENTARY SCHOOLS For the school year 1973-74, there were seventy-nine elementary schools within the defendant School District, serving 33,495 students, of whom 6,876 (or approximately twenty per cent) were black. The elementary schools are the heart of the defendants’ neighborhood school policy. Geographic boundaries are drawn for each school and the students living within the boundaries of a certain school are expected to attend that school. The plaintiff and intervenors allege that in the elementary schools the defendants have departed from the neighborhood school policy in two ways and that these departures have been made with segregative intent. They are: 1) The adding of capacity to relieve overcrowding. 2) The alteration of attendance zones. 1) THE ADDING OF CAPACITY There have been periods in the operation of the Omaha Public School System in which many of the elementary schools have enrolled numbers of students in excess of the published capacities for those schools. The School District’s response to these overcrowding problems has generally been either to increase the capacity at the existing schools by use of temporary classrooms, or to construct new schools (the discussion of which is found at page 42, infra.) The earliest use of temporary classrooms by the defendant School District which is reflected in the record is in the early 1950’s, and the evidence shows an increasing use of temporary classrooms throughout the 1960’s and to the present time. Currently there are substantial numbers of temporary classrooms in schools with high black enrollments. However, there are also substantial numbers of such units in the far northern and western portions of the School District, in predominantly white schools located in predominantly white residential areas. As discussed earlier in this opinion, there has been a general shifting of the concentration of the black student population within the School District in the northerly and westerly directions from the area once known as the Near North Side. There has been no showing that the placement of temporary classrooms has corresponded to this, shifting, and there is no support in the record for a conclusion that these units have been placed in certain schools for the purpose of containing black students in those schools. The plaintiff and intervenors complain specifically of the placement of temporary classrooms at Franklin and Clifton Hill schools. These schools have adjacent attendance zones and are located in the north-central portion of the School District. The racial compositions of both schools have followed a parallel course: predominantly white throughout the 1950’s; majority white in the mid-1960’s; majority black in the mid-late 1960’s; currently predominantly black. Thus, the enrollments at these schools reflect the black residential shift mentioned earlier. Also, both of these schools began experiencing increasing enrollments in the early to mid-1960’s. The School District’s response was to supply these buildings with temporary classrooms. By 1971-72, Franklin was over-capacity by 317 pupils and had thirteen temporary classrooms, while Clifton Hill was 255 pupils over capacity and had twelve temporary classrooms. The schools adjacent to Franklin on the south, southwest and west, are Yates, Saunders and Walnut Hill, respectively, which have always been predominantly white and which through 1971-72, had generally been under the published capacity. The schools adjacent to Clifton Hill on the west and northwest are Rose Hill and Fontenelle, respectively, which through 1971-72 were predominantly white and under capacity. The plaintiff and interveners argue that substantial reductions in racial imbalance at all the above-mentioned schools would have resulted if the School District had restructured the attendance requirements for these schools (a. g., by redrawing boundaries or by reassigning grades of students), and that the failure of the School District to do so is evidence of segregative intent. The Court agrees that some restruc-» turing was possible which would have increased a better racial balance at all these schools, and that by continued restructuring over the years, a substantial degree of integration could have been maintained. But it is also clear that at the time in question, this restructuring of enrollments, whether by the altering of attendance zones or by the shifting of grades between schools, simply was not a method used by the School District to alleviate overcrowding. There is some evidence of such practices in the 1950’s and early 1960’s, but the amount of this restructuring was, even then, not substantial. By the mid-1960’s, it is clear that the School District emphasized use of temporary classrooms as the primary measure for dealing with increased enrollments. Further, the Court notes that the increase of capacity by use of temporary classrooms had an integrative effect for some schools. For example, from 1964-65 through 1972-73, the black enrollment at Miller Park increased from seven to 245 (1.1 per cent to 40.5 per cent) and the number of temporary classrooms increased from zero to ten. From 1967-68 through 1972-73, the black enrollment at Belvedere increased from 23 to 221 (2.5 per cent to 24.7 per cent) and the number of temporary classrooms grew from zero to six. From 1962-63 through 1972-73, the black enrollment at Central Park grew from three to 348 (.4 per cent to 46.9 per cent) and the number of temporary classrooms grew from three to ten. This evidence does not, of course, prove that the School District used temporary classrooms with an integrative intent. But it is some evidence that the Board acted with no racial intent at all, and this is precisely the Court’s conclusion. The evidence presented simply shows that use of temporary classrooms was the School District’s choice for dealing with the overcrowding; that there was no pattern or design of placement of these classrooms on a racially discriminatory basis; and that, therefore, any segregative effects of the use of temporary classrooms were not intentionally caused or maintained by the defendants. 2) ALTERATION OF ATTENDANCE ZONES As mentioned previously, changes in elementary attendance boundaries have been infrequent in the Omaha Public Schools. There are two such changes, however, which the plaintiff and intervenors allege had a segregative effect and which were made by the School District to achieve that effect. The first of these concerns Druid Hill and Monmouth Park Schools. Between 1957-58 and 1958-59, a portion of land just north and west of the Belt Line Railway was removed from the Druid Hill (majority black) zone and added to the Monmouth Park (predominantly white) zone. There is no way of determining the number of students involved in this transfer, nor their race, although an inference is permissible from other exhibits and evidence that this residential area was largely white. In any event, the adjustment is plausibly explained by the School District, and the Court finds that this explanation is devoid of any segregative intent: in the spring of 1958 a Druid Hill student crossing the Belt Line railroad tracks going home for lunch was nearly struck by a train. Thereafter, the portion of the Druid Hill zone across the tracks and nearest to Monmouth Park School was assigned to that school until 1965, when a cafeteria was installed in Druid Hill. The second boundary adjustment also occurred between 1957-58 and 1958-59, when a primarily white residential section of the Webster (majority white) zone was removed from that school and added to the adjacent Yates (predominantly white) zone. In 1959-60, the Webster seventh and eighth grades were removed from that school and assigned to Technical Junior High, which was rapidly becoming majority black. The seventh and eighth grades were retained at Yates. The plaintiff and intervenors allege that this boundary change between 1957-58 and 1958-59 thus permitted white seventh and eighth grade students to avoid attendance at Technical Junior High. The facts, however, show no sudden increase in the Yates seventh and eighth grade enrollment. The Yates grade to grade progression for the 1959-60 seventh and eighth grade students shows a relatively constant pattern— 1956-57 fourth and fifth grades: 45 and 33; 1957-58 fifth and sixth grades: 44 and 36; 1958-59 sixth and seventh grades: 44 and 43; 1959-60 seventh and eighth grades: 44 and 38. Thus, the Court concludes that few, if any, seventh and eighth grade students were thus excluded from Technical Junior High and that there was no segregative effect to this boundary change. In conclusion, the Court finds that these two instances of boundary changes were not prompted by any segregative intent of the School District, and with regard to the Yates Webster situation, the Court finds that there was not even any segregative effect. III. JUNIOR HIGH SCHOOLS The plaintiff and intervenors allege that the operation of the junior high system, especially as it concerns Technical Junior High and Horace Mann Junior High evidences segregative intent on the part of the Omaha School District. They further allege that this segregative intent can be determined in three ways: 1) Through the initial placement of the junior highs and the establishment of elementary feeder schools for them; 2) Through the manner in which the elementary programs were converted from K-8 through K-6, including the retention of some schools as K-8; 3) Through the establishment of optional attendance zones for some seventh and eighth grade students. The plaintiff and intervenors argue that by these means the School District has concentrated black students in Technical Junior High and Horace Mann Junior High and has permitted white students who live near these schools to avoid mandatory assignment to them. The School District denies the existence of segregative intent, reaffirms its application of a racially neutral neighborhood policy, and offers explanations for deviations therefrom. 1) INITIAL PLACEMENT AND FEEDER PATTERNS Prior to approximately 1950, the Omaha School District provided instruction in two school settings, one for grades K through 8, and another for .grades 9 through 12. The junior high system, whereby grades 7 through 9 are offered and housed in a separate setting, was proposed to the Omaha Public School System as early as 1917, although no action on this proposal was taken at that time. The idea was revived in the 1951 Study of Plant Facilities and Requirements published by the Omaha Board of Education. Nine junior highs were proposed — one for each of nine geographical portions of the District. Some were to be housed in buildings to be constructed, some in converted elementary facilities, and one (Technical Junior High) in a portion of a senior high school building. For the areas in which substantial concentrations of black school age children later came to reside, two junior highs were proposed. The first of these was Technical Junior High, located on the site of Technical Senior High at 33rd and Cuming Streets, which was on the southwestern border of the area known as the Near North Side. The designated feeder elementary schools for Technical Junior High and their racial enrollments for the 1951-52 school year as compared to the 1973-74 school year are as follows: 1951-52 1973-74 White Black White Black Central Grade 431 107 21 Kellom 365 356 40 470 Lake 254 319 38 141 Long 0 433 32 355 Webster 223 122 Closed after 1968-69 Yates 367 0 196 50 TOTAL 1,640 1,235 413 1,037 The second of these junior highs was to be made by removing the elementary students from Druid Hill School and converting it to a junior high. The feeder schools and their racial enrollments for the 1951-52 school year as compared to the 1973-74 school year are as follows: White Black 1951-52 1973-74 Black White Central Park 566 351 0 307 Druid Hill 260 308 55 35 Monmouth Park 400 353 0 98 Howard Kennedy 4 3 622 346 Lothrop 511 11 627 258 Saratoga 587 0 77 522 TOTAL ' 2,328 659 531 2,783 By 1955, none of these junior highs, with the exception of Technical Junior High on a limited basis, were in operation. The 1955 Study of School Enrollment and Plant Facilities published by the Omaha School Board proposed a new system of eleven junior highs. For the areas which then and later had substantial concentrations of black school age children, three junior highs were proposed. The first was again Technical Junior High, which had already received the seventh and eighth grades from Kellom and Central Grade Schools. The proposed feeder schools for Technical Junior High and their racial enrollments for 1955-56 as compared to 1973-74 are as follows: 1955-56 White Black 1973-74 White Black Franklin 683 19 80 554 Kellom 376 481 40 470 Webster 227 118 Closed after 1968-69 TOTAL 1,286 618 120 1,024 In place of the converted Druid Hill Junior High of the 1951 study, the 1955 study proposed a Paxton Boulevard junior high. The proposed feeder schools and their racial enrollments for 1955-56 as compared with 1973-74 are: 1955-56 1973-74 White Black White Black Central Park 680 0 307 351 Druid Hill 241 175 35 308 Monmouth Park 537 0 98 353 Saratoga 649 3 77 522 TOTAL 2,107 178 517 1,534 In addition to these, the 1955 Study also proposed a Near North Side junior high, to be erected on the northern edge of Adams Park, although the Board realized acquisition of park property would be difficult. The feeder schools for this junior high and their racial enrollments for 1955-56 as compared with 1973-74 are: J955-56 1973-74 White Black White Black Howard Kennedy 41 726 3 622 Lake 312 508 38 141 Long 34 480 32 355 (Conestoga) Lothrop 382 603 11 627 TOTAL 769 2,317 84 1,745 During the years 1956-62, a number of junior highs were opened in the Omaha School District. Neither the Paxton Boulevard junior high nor the Near North Side junior high were among them. However, a new junior high was constructed near Twentieth and Pratt Streets, approximately five blocks north of the Near North Side. This School, Horace Mann Junior High, opened in the 1959-60 school year. The racial enrollment at Mann was 177 white and 443 black in that year and has been predominantly black ever since. In 1958-59, McMillan Junior High, also in a new building, was opened at 38th and Redick Streets, to the north and west of Mann. It was completely white when opened but the percentage of blacks has steadily increased and in 1973-74, black students comprised thirty-six per cent of the enrollment. With respect to Technical Junior High, the foregoing paragraphs describe the planned feeder schools. However, these plans never materialized. The actual evolution of the Technical Junior High zone consisted of the piecemeal designation of various elementary schools to Technical Junior High as follows: Junior High Year 7th & 8th Grades Assigned to Technical Enrollment at This School for that Year Enrollment at Technical Junior High for that Year White Black White Black Kellom 1950-51 402 350 66 76 Central 431 5 162 135 Grade 1951-52 Long 1955-56 34 480 171 162 Franklin 1957-58 618 18 274 273 Webster 1959-60 143 111 363 323 On a geographical basis, these five schools were the closest to Technical Junior High with the exception of Yates and the possible exceptions of Saunders and Walnut Hill, all of which were predominantly white from 1950 to the present. After 1959-60, enrollment at Technical Junior High was amplified only by its assignment as an optional junior high for certain elementary schools and ■ the designation of Yates as a feeder school in 1970-71. In 1960-61 and 1961-62, Technical Junior High was majority white. In 1962-63, it turned majority black and from that point on, the percentage of black students has risen steadily, reaching over ninety-five per cent in the late 1960’s. The junior high program at Technical was closed after the 1971-72 school year. With the exceptions described below, students are and have been assigned to junior high schools according to the neighborhood school policy. Geographic boundaries exist for each junior high which generally correspond to the boundaries of designated elementary schools near that junior high. Thus these elementary schools become feeders for the junior highs. In some cases the junior high boundary may not correspond exactly to the elementary school boundary, and two students who attended the same elementary school may be assigned to different junior highs. 2) CONVERSION FROM K-8 TO K-6 Most elementary schools lost their seventh and eighth grades to junior high schools during the 1956-62 junior high construction. As of the 1962-68 school year, there were sixteen elementary schools which were still housing the seventh and eighth grades. These schools were located across the entire middle and eastern portion of the School District, in both the north and south parts of the City, and in both the black and white residential areas. By the 1964-65 school year, only seven of these schools remained K-8. Four of these seven, Jackson, Mason, Walnut Hill and Yates, were located such that the closest junior high was Technical Junior High. Two of the seven, Pershing and Sherman, were located such that the closest junior high was Mann. For the school years 1964-65 through 1971-72 all six of these elementary schools had predominantly white enrollments, while Technical Junior High and Mann were both predominantly black. Aside from certain limited testimony concerning Yates School, there is no direct evidence concerning the intent of the defendant School District in failing to convert any of the elementary schools from K-8 to K-6. For the years 1964-65, through 1971-72, the number of seventh and eighth grade students retained at these six elementary schools is as follows: SCHOOL 1964-65 1965-66 1966-67 1967-68 1968-69 1969-70 1970-71 1971-72 Mason 90 Converted to K-6 Jackson 63 85 64 66 63 66 62 70 Walnut Hill 104 113 111 Converted to K-6 Yates 58 70 70 52 54 34 Converted to K-6 Pershing 110 103 87 70 55 49 52 50 Sherman 125 114 128 119 116 111 119 123 Of these six schools, only Sherman and Pershing at any time had enrollments in excess of their building capacity, and never to a serious degree. On the other hand, Technical Junior High and Mann consistently had enrollments somewhat below published capacity: SCHOOL 1964-65 1965-66 1966-67 1967-68 1968-69 1969-70 1970-71 1971-72 JL JLJL JLJL JLL JLJL JLJL JLJL JLJL £ Technical Junior High 653 795 630 795 667 795 637 795 641 795 641 795 598 795 606 795 Mann 1000 1380 1051 1380 986 1380 880 1380 819 1380 827 1380 832 1380 882 1307 With respect to the four elementary schools closer to Technical Junior High, the only zone from which transportation to Technical would be difficult is Mason, where, due to the commercial and highway development separating these areas, transportation would have posed a serious problem. With respect to the two elementary schools closer to Mann, the situation is somewhat different. The Pershing and Sherman zones are relatively isolated from the rest of the School District in the northeastern corner thereof, in areas sparsely populated and containing increasing commercial and industrial development. The driving distances between the Sherman and Mann buildings is 1.7 miles, but the distance is greater for most of the Sherman zone. The driving distance between the Pershing and Mann buildings is 3.1 miles. The isolation of the Pershing and Sherman zones was recognized by the School District in the 1955 Study of School Enrollment and Plant Facilities, in which it was recommended that a separate, smaller-than-usual junior high facility be built at Sherman School to accommodate both Sherman seventh and eighth grade students and those from the expected annexation of East Omaha (served by Pershing School). This annexation did occur and the smaller junior high recommendation was made again in 1962, but an expected population increase in the area never materialized and this junior high was never built. Pershing and Sherman are currently and always have been K-8 schools, although for two years, 1960-61 and 1961-62, students from both schools had the option of attending Mann (predominantly black), McMillan (predominantly white), or staying at their previous elementary school. The evidence does not permit a conclusion as to how the options were exercised, if at all. 3) OPTIONAL ATTENDANCE ZONES The plaintiff and intervenors are also concerned with the School District’s practice of creating optional attendance zones for seventh and eighth grade students from certain elementary schools near Technical Junior High. The schools with these options were Mason, Saunders and Walnut Hill. The following are relevant statistics for the time period involved : SCHOOL Racial EnrollDrlving Distance to ment in Year Optional Junior Highs Option Created White Black Saunders 1.0 miles to Technical 2.2 miles to Norris 2.5 miles to Lewis & Clark 1964- 65 178 0 Mason 1.9 miles to Technical 2.7 miles to Norris 2.3 miles to Bancroft 1965- 66 447 12 Walnut Hill 1.3 miles to Technical 3.3 miles to Norris 2.5 miles to Lewis & Clark 1967-68 432 8 Technical Junior High White Black Stated Total Capacity 1964- 65 254 399 653 795 1965- 66 . 223 407 630 795 1966- 67 160 507 667 795 1967- 68 69 568 637 795 Bancroft, Lewis and Clark and Norris Junior High Schools were all predominantly white during this time period. The above information gives the statistical background concerning the optional attendance zones; information concerning the actual exercise of these options is available for the 1971-72 school year only and is as follows: Children residing in the Walnut Hill zone: Racial Composition White_Black To Technical Junior High - 3 48 551 To Lewis and Clark - 90 1,205 21 To Norris - 5 1,407 10 Children residing in the Saunders zone: To Technical Junior High - 1 To Lewis and Clark . - 21 To Norris - 23 Children residing in Mason zone: To Technical Junior High - 1 To Norris - 25 To Bancroft Not Available 473 2 At the end of the 1971-72 school year, Technical Junior High was closed. The Saunders and Walnut Hill options were continued to Lewis and Clark and Norris, while the seventh and eighth grade students from Mason were assigned either to Bancroft or Norris, depending upon their street address. In addition to these three optional attendance zones, there have been nine other elementary schools throughout the School District which either currently or in the past have had options concerning junior high attendance. With regard to eight of these nine schools, Conestoga, Harrison, Irvington, Pershing, Ponca, Rose Hill, Sherman and Washington, the evidence indicates that exercise of these options to the various junior high schools involved had no significant segregative or integrative effect. The ninth school was predominantly black (Druid Hill, 1966- 67: 25 white, 568 black). In 1967- 68 seventh and eighth graders in a portion of the Druid Hill zone were given options to attend predominantly black Mann (1966-67: 23 white and 963 black) or predominantly white McMillan (1966-67: 1303 white and 119 black). Mann was approximately one mile and McMillan approximately two and a half miles from the center of the optional zone. No precise records are in evidence concerning the exercise of this option, but for 1967-68, the total enrollment at McMillan showed an increased of 42 black students and a decrease of 44 white students, while at Mann there was a decrease of 105 black students and 1 white student. Thus, the option, for the year 1967-68, had some integrative effect. This option continues to the present. CONCLUSIONS The foregoing constitute the Court’s findings of fact concerning the junior high system in the Omaha School Disr. trict. From these findings the Court is able to draw certain conclusions. The first such conclusion is that there was no segregative intent on the part of the defendant School District in the establishment of the junior high system or in its assignment of feeder schools for the various junior highs. The evidence shows that the District’s proposals for the various junior highs were consistently made on a geographical basis and that the race of the students expected to attend these schools was never a consideration. Of the junior highs which were ultimately built and operated, there were at times two — Technical and Mann — and there is currently one — Mann—which have enrolled a predominantly black student body. However, there appears in the record no evidence to indicate desire or design by the School District that this should occur. In both the 1951 and 1955 Studies, the combined enrollments of the feeder schools for the junior highs which ultimately became Technical and Mann were, as of those years, predominantly white. The only proposed junior high with feeder schools enrolling even a combined majority of black students was the 1955 Near North Side junior high, the erection of which was recognized then to be improbable, and which was, in fact, never built. The evidence shows a constant increase in the concentration of black school age children in the areas to the north and west of what was once known as the Near North Side, and this increase is reflected in the racial enrollment of the various feeder schools, and consequently in the junior highs. With respect to the conversion of K-8 schools to the K-6 system, the Court finds that this policy in itself was racially neutral and was not indicative of any segregative intent. The policy was not totally applied to all schools at the same time and certain exceptions were made which deviated from the conventional neighborhood school basis and which plaintiff and intervenors argue demonstrate a segregative intent. However, as stated at the outset, the burden of proof here is upon plaintiff and intervenors to show an intentionally segregative policy practiced in a meaningful or significant portion of the school system. Only then does it become incumbent upon the defendants to prove that their actions or nonactions were not motivated by segregative intent. The Court is not of the opinion that plaintiff and intervenors have met this burden in connection with this particular policy. First of all, the record shows that Mason converted to K-6 by 1965-66, Walnut Hill by 1967-68, and Yates by 1970-71. The record is unclear and undeveloped as to the status of Jackson at this time, although there is some evidence to indicate that the K-8 policy is still in existence at that school. The record further shows that Yates was permitted a one-year delay from 1969-70 to 1970-71 for conversion because of a request from the parents of the Yates students based upon the opposition to the children attending a junior high (Technical) which was housed with the senior high. There is some evidence as to the personal opinions of a school board member and a school board employee as to the reason for the parents’ request having to do with racial factors, but the Court considers this testimony to have little, if any, probative value and it is not persuasive of the plaintiff and intervenors’ contentions. Furthermore, if this particular policy was creating or continuing a racial imbalance, it was remedied by 1970-71 which would have heavily discounted an “intentionally segregative policy practiced in a meaningful or significant portion of the school system.” Also, heavily discounting such segregative intent is the fact that a portion of an adjacent zone (Webster) was transferred to the Yates zone in 1969 which thereby increased the black enrollment at Yates from two per cent to thirteen per cent. Furthermore, the Court concludes that the geographic isolation of the Sherman and Pershing schools was and is a sufficient reason for the School District to permit the seventh and eighth grade students to remain in those buildings and that this decision is consistent with the District’s neighborhood school policy. The Court further concludes that the necessary segregative intent has not been demonstrated by the plaintiff and intervenors with reference to the seventh and eighth grades at Jackson, Mason, Walnut Hill and Yates, and that the reasons advanced for those respective retentions of K-8 policy until 1970-71 were not motivated by or indicative of a segregative intent on the part of the defendants practiced in a meaningful or significant portion of the school system. Considering next the optional attendance zones, the Court finds that the maintenance of such a system presented a necessary and reasonable deviation from the neighborhood school policy. Historically, and most frequently during •the 1960’s, optional zones were frequently used when the junior high schools came into being and were in existence throughout the District. The optional zone from Walnut Hill in 1967-68 was created when enrollments at Monroe Junior High made it impossible to assign Walnut Hill as a feeder school to that particular junior high school, which would have been the most desirable arrangement inasmuch as Walnut Hill fell within the Benson High attendance area, Benson High and Monroe occupying the same site. In the same year that the Walnut Hill optional zone was created, seventh and eighth grade students in a portion of the Druid Hill zone, which was predominatly black, were given the option of attending Mann Junior High (predominantly black) or McMillan Junior High (predominantly white), even though McMillan was approximately one and a half miles farther away from this area than Mann. Insofar as the Mason optional zone is concerned, this was created in 1965 when Bancroft Junior High first opened in order to give the seventh and eighth graders from that area an alternative in transversing a commerical area and extensive interstate highway construction in order to reach Technical Junior High. Saunders Elementary School had never been proposed as a feeder school for Technical Junior High, either in 1951 or 1955. In these years there was a proposal that a portion or all of Saunders be assigned to the Dundee or Western Avenue Junior High respectively. The Dundee and Western Avenue Junior Highs ultimately merged in what was to be known as Lewis and Clark which, because of the availability of open land space, was located at the westernmost part of the zone which it was to serve. Saunders, therefore, was made an optional zone to Lewis and Clark or Technical or Norris in 1964-65 when the record shows that enrollments at Technical Junior High were up and enrollments at Lewis and Clark were down. From this evidence, the Court concludes that in these three instances, the School District deviated from the neighborhood school policy for sound, administrative reasons, and its judgment was not based upon racial reasons or a segregative intent. In this connection, it should further be noted that a significant measure of racial balance was achieved so far as Druid Hill was concerned because of this optional zone policy which, again, would discount overall an intentionally segregative policy. It is here noteworthy to point out the observation made by the Court in the case of Higgins v. Board of Education, Grand Rapids, Michigan, No. CA 6386 (W.D.Mich., Filed July 18, 1973), Slip Opinion at 34-35, which is applicable to the instant case: To anyone endeavoring with objectivity to consider the contentions of the parties, the most singular impression is of the unending dilemmas which face the school officials of a large urban system. It is altogether too easy for one, desiring in advance a particular result, to assign to any Board action that motive and that effect which most likely will support the personal predilection. Particularly difficult is the necessary task of examining Board action in the light of the circumstances as they existed at a given time, of alternatives available, of knowledge of what the future would or would not bring to the system, and of viewing each action or inaction in the light of its impact on the whole. IV. HIGH SCHOOLS At the present time there are eight senior high schools in the Omaha Public School System. Three of these (Bryan, Burke and Northwest) have been opened within the past seven years and are located in the far south, western and northwestern portions of the School District, respectively. They were built in predominantly white residential areas, and have always had predominantly white enrollments. The remaining five schools, Benson, Central, North, South and Technical, have all been in operation for at least forty years. Three of these five have specified attendance zones — Benson in the mid-northwestern portion of the District; North in the northeastern portion of the District; and South in the southeastern portion of the District. Central and Technical share the same attendance zone in approximately the middle and eastern portion of the District. Technical is north and west of Central and is located approximately at the southern boundary of the Near North Side area which area comprises the largest percentage of black population in the City. In addition to serving this mutual zone, Central and Technical are and have always been open enrollment schools, which means that a student from any attendance zone may choose to attend Central or Technical rather than the high school serving his or her zone. These are the only open enrollment schools. From 1936 to 1945 Technical High had the largest student body in the School District, enrolling over 3,000 students annually, with a peak of 3,771 in 1940-41. Technical consistently enrolled the largest number of black students during this time period, with a high of 320, or approximately nine per cent of the student body, in 1941-42. Around 1945, Technical began experiencing a steady decline in total enrollment to the point that for 1973-74 Technical enrolled only 710 students. At the same time there has been a consistent increase in the percentage of black students at Technical, and in 1973-74, blacks comprised 96 per cent of the student body. This development has not been paralleled at any other high school. Figures introduced in evidence disclose the following concerning the five schools which have served the School District throughout this time: BENSON CENTRAL NORTH SOUTH TECHNICAL Per Cent Total Black Total Per Cent Black Total Per Cent Black Total Per Cent Per Cent Black Total Black 1936-37 1,507 0 2,013 8 2,001 2 2,803 2,916 6 1941-42 1,162 0 2,113 9 1,740 1 2,915 3,365 9 1946-47 1,334 0 1,699 12 1,515 1 2,373 2,418 10 1951-52 1,186 0 1,455 11 1,531 1 2,183 1,879 18 1956-57 1,352 0 1,882 13 1,778 2 2,477 1,727 26 1961-62 1,985 0 1,758 13 1,794 3 2,619 1,537 44 1966-67 2,096 ■1 2,088 18 2,165 18 2,521 1,453 69 1971-72 1,894 7 2,078 26 2,178 26 2,609 1,048 91 1973-74 1,637 14 2,075 32 1,890 36 2,444 710 96 In the 1950’s, published reports of the School District listed Technical as thirty per cent below capacity, Central as filled to capacity, and the three other high schools as overcrowded. In the late 1950’s and early 1960’s additions at Benson, North and South relieved the overcrowding somewhat at those schools. However, South High experienced severe overcrowding from 1961-62 to 1964-65 and Benson was seriously overcrowded from 1962-63 through 1971-72. Yet, from 1959-60 through 1971-72, Technical, even though it housed Technical Junior High in a wing of the total facility, had excess capacity of from 680 to 1,500 students. This situation as it developed at Technical Senior High was known to the administration of the Omaha Public Schools. Mr. Carl Palmquist, the principal at Technical during the 1950’s and 1960’s, repeatedly notified the Superintendent of Schools and his staff orally and in writing that Technical was in danger of becoming an all-black school. It it clear that the success of the open school and mutual zone policies at Technical, insofar as the retention of a sufficiently high enrollment is concerned, were dependent upon the attractiveness of Technical to students throughout the District. It is also clear that in the last twenty-five years, fewer and fewer white students have been attracted to Tech. The plaintiff and intervenors allege that a substantial contributing cause to this situation has been the School District’s intentional deterioration of the quality of education offered at Technical. The Court disagrees and finds that the operation of Technical does not disclose segregative intent on the part of the defendants and to the contrary, shows a determination on the part of defendants to upgrade both the physical plant and the quality of education at this school. Furthermore, as far as Tech’s majority black status is concerned, the Court reiterates that racial balance is not required under the Constitution and there can be and are many instances where one-race schools within a District are plainly permissible under the law. It is only where the imbalance is caused by a segregative intent on the part of the School Board and where the imbalanee thereby reaches the proportion of constitutional violation that the Court may supplant its judgment and policy for that of the School District. As stated in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), at pages 25 and 16, 91 S.Ct. 1267, at pages 1280 and 1276, 28 L.Ed.2d 554: The record in this case reveals the familiar phenomenon that in metropolitan areas minority groups are often found concentrated in one part of the city. In some circumstances certain schools may remain all or largely of one race until new schools can be provided or neighborhood patterns change. Schools all or predominantly of one race in a district of mixed population will require close scrutiny to determine that school assignments are not part of state-enforced segregation. In light of the above, it should be clear that the existence of some small number of one-race, or virtually one-race, schools within a district is not in and of itself the mark of a system that still practices segregation by law. ****** School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion of the district as a whole. To do this as an educational policy is within the broad discretionary powers of schooL authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court. See also, Spencer v. Kugler, 326 F.Supp. 1235 (D.N.J.1971), aff’d 404 U.S. 1027, 92 S.Ct. 707, 30 L.Ed.2d 723 (1972), where the Court stated: “The schools . . . are racially imbalanced by reason of N.J.S. 18A: 8-1 to 42 and N.J.S. 18A:38-1 to 24, which sets school district boundaries thereby rendering racial balance mathematically impossible in many districts, thus providing unequal educational opportunities. The State has taken no steps to achieve racial balance by reason of the mathematical composition of the geographical area which comprises the school district, has not attempted to redraw school district lines to achieve racial balance, has not provided funds for compensatory education to overcome adverse educational effects of racial imbalance.” Id. 326 F.Supp. at 1237. Plaintiff’s substantive claim rests wholly on the assertion that there is an affirmative constitutional duty to achieve racial balance among the several districts of a state system of public schools; and that a failure to do so is in violation of Fourteenth Amendment rights. Id. at 1238. The Court in Swann draws a critical distinction-between those states which have a history of dual school systems and a separation of the races which has continued through “freedom-of-choice” and “geographical zoning” plans which create the illusion of conforming to law, and those wherein so-called “de-facto” segregation results from housing patterns and conventional drawing of school district zones. Id. at 1242. A continuing trend toward racial imbalance caused by housing patterns within the various school districts is not susceptible to federal judicial intervention. The New Jersey Legislature has by intent maintained a unitary system of public education, albeit that system has degenerated to extreme racial imbalance in some school districts; nevertheless the statutes in question as they are presently constituted are constitutional. Id. at 1243. The evidence discloses that from at least the late 1930’s through the 1950’s, Technical offered a comprehensive curriculum, with courses in both college preparatory and vocational areas. Tech had the most advanced vocational program in the School District, and a substantial portion of the students attending Technical did so because of this program. Extensive vocational instruction was also offered at South. In the early 1960’s, the interest of high school students in vocational education diminished District-wide, and greater importance was placed on college preparation. Also, in the 1960’s officals at Tech became aware that black students (Technical turned majority black in 1963-64) were having difficulty finding employment in certain skilled areas. As a result of these two factors, Tech dropped its instruction in certain vocational areas, e. g., electronics and instrumentation — and added programs in other vocational areas, such as auto mechanics and culinary arts, where job accessibility for blacks was greater. The interest of high school students in the vocational programs at Technical has continued to decline to the point that many areas of the school and much equipment are not currently in use. The Court does not find, however, that the potential for an excellent vocational educational program at Technical has in any way diminished. The equipment and facilities are present, are of high quality, and are equal to and in some areas superior to, those of any high school in the District. In the 1960’s, the curriculum at Tech changed in other ways as well. Certain of the foreign languages (e. g., French and German) were eliminated because of decreased student interest (although Spanish and Latin were retained). Also the orchestra was removed. On the other hand, programs such as R. 0. T.C., guidance and health (for girls) and an audio-response English program were initiated. Also, in the early 1960’s, a program of what is known as “special education”— 1. e., classes geared particularly to students who have not progressed satisfactorily academically or who have learning disabilities — was instituted at Tech. Tech was the only high school which had these classes for the first few years, and as many as two hundred students participated in this program in any one year. Eventually the other high schools initiated such classes, although the dates in which they did so are unknown. The plaintiff and intervenors argue that students from across the District who needed special education or who had histories of disciplinary problems in school were channeled into Tech, and that thus, the ability of the Tech students as a whole and the attractiveness as a high school were further reduced. There is not sufficient evidence to support this claim. To the contrary, the evidence discloses that the special education program at Technical was designed to serve the students already enrolled at that school, not students from other schools. Concerning disciplinary problem students, there is evidence that Tech received such students from other schools and transferred such students out of its own facility to other schools, and there is no evidence of the relative numbers of these students. Prior to the start of the 1971-72 school year, Tech experienced what several witnesses have described as “disruptions” of an unspecified character and number. There is considerable evidence that many students at Technical at this time were dissatisfied with the content and structure of courses offered, the manner of instruction, the treatment of Technical by the central administration of. the School District, and the physical plant at Technical. The state of the record does not permit findings as to the factual basis for this dissatisfaction. However, in response to the students’ action, and in cooperation with various citizens’ groups and an outside consulting 1971-72. The building itself was repair-firm, the School District made several changes at Tech for the school year ed and renovated; some faculty assignments were changed; and the curriculum was altered substantially. The evidence shows that the academic program at Tech from 1971-72 to the present has been basically individualized. The traditional time schedule of quarters, semesters, etc., has been discarded so that students progress at their own pace. Students may now take as much or as little of a course as they are able to handle at any one time, and the courses can be structured to fit the particular students’ needs. Also Tech has considerable flexibility in its course offerings. Varied faculty backgrounds permit the devising and implementing of courses not formerly offered, as students’ needs and interests require. There has also been an active student recruitment program at Technical, both for full and part-time students. V. SPECIAL TRANSFER POLICY A. Introduction One of the methods by which a student may attend a school other than that in his zone of residence is by obtaining approval of the School District for a special transfer. The origin of the special transfer policy was explained in the Memorandum Opinion following the preliminary injunction hearing, 367 F.Supp. at 191. Initiated in 1964, the policy has five formal prerequisites for the granting of a special transfer: 1) The achievement level of the pupil requesting a transfer must equal the average level of achievement of the pupils in the grade and school for which the transfer is being requested. 2) The school to which the pupil is transferred cannot be an overcrowded school. Capacities of schools shall be determined by the staff and the Board of Education. 3) The transportation of pupils is totally the responsibility of parents. 4) The request must be a formal written request on an individual basis. 5) Permission for a transfer shall not be granted until enrollments are ascertained. In addition, in determining whether a transfer should be granted, the School District considers medical reasons, family hardships, and problem or learning situations where the School District feels a student may have a better chance of success in the transferee school. The plaintiff and interveners allege that the transfer policy has been operated in such a manner as to permit white students to avoid attendance at neighborhood schools which have substantial numbers of black students, and that this is evidence of the School District’s segregative intent. The School District denies that transfers have ever been granted for racial considerations. Plaintiff and intervenors also assert that the transfer policy discriminates against black students because of the transportation and equal achievement requirements, but there has been no evidence introduced at trial which would support such allegations. The transfer application form used by the School District has no space for indication of race, although correlation with other students records could give the School District this information. The application form does have a space for indication of the reason for transfer. A number of transfer applications have been introduced in evidence on which racial reasons were voluntarily offered by the parents. Some of these requests were granted and some were denied. Other applications have been introduced which list non-racial reasons, and again, some of these were granted and some denied. The Court finds the limited number of individual requests involved to be of little probative value in determining whether the policy as a whole was or was not administered with segregative intent. Of greater probative value are the extensive analyses of the transfer policy’s operation prepared by both the plaintiff and the defendants for the school years 1970-71 and 1971-72. Although both analyses are based upon essentially the same underlying data, the approaches utilized and the portions of the data emphasized by each party are different. B. The government’s analyses The plaintiff’s analyses classify each transfer approval as segregative, desegrelative or of no effect. A transfer is termed segregative if it permits a student to change to a school in which students of his race are in a percentage at least ten per cent greater than that in the school in his zone of residence. If students in his race are in a percentage at least ten per cent less than that in the school in his zone of residence, the transfer is desegregative. If the difference in percentage is within ten per cent, either more or less, the approval has no effect. These analyses and additional evidence of the government are directed toward demonstrating segregative intent through three avenues: 1) The. number of segregatory transfers in the School District as a whole; 2) The number of transfers by white students out of predominantly black schools; 3) The number of transfers by white students into overcrowded majority or predominantly white schools. 1) The School District as a whole Graphs in the government’s analyses list transfer approvals for the years 1970-71 and 1971-72 as follows: 1970-71 Segrega- Desegrega- No Total tive tive Effect High Schools 1,024 413 203 408 Junior Highs 758 220 198 340 Elementary 1,770 608 202 960 TOTAL 3,552 1,241 603 1,708 1971-72 Segrega- Desegrega- No Total tive tive Effect High Schools 1,015 453 178 384 Junior Highs 830 325 174 331 Elementary 2,041 733 264 1,044 TOTAL 3,886 1,511 616 1,759 These totals do not include denials of transfer requests, although this information is available elsewhere in the plaintiff’s analyses. When denials are included, the totals are: 1970-71 Segrega- Desegrega- No Total tive tive Effect High Schools 1,138 423 274 441 Junior Highs 925 278 219 428 Elementary 1,952 615 285 1,052 TOTAL 4,015 1,316 778 1,921 (32.8%) (19.4%) (47.8%) 1971-72 Segrega- Desegrega- No Total tive tive Effect High Schools 1,472 484 369 619 Junior Highs 1,102 411 253 438 Elementary 2,177 750 338 1,089 TOTAL 4,751 1,645 960 2,146 (34.6%) (20.2%) (45.2%) 2) Transfers out of predominantly black schools In its transfer policy analyses, the government includes charts showing the number and race of transfers out of predominantly black schools or zones and the schools to which these transfers were made. Correlation of these charts with other data in evidence permit