Full opinion text
OPINION AND ORDER ENGEL, District Judge. This is a metropolitan desegregation action brought by individual plaintiffs and the class which they represent, determined by order entered June 19, 1972, to be negro children and the parents of negro children seeking relief on behalf of themselves and on behalf of all other school children and their parents or guardians in Kent County, Michigan, who are similarly situated and affected. Plaintiffs invoke the jurisdiction of the court under 28 U.S.C. § 1343(3), the suit being authorized by 42 U.S.C. § 1983. The civil rights claimed to have been violated are those secured plaintiffs by the Fourteenth Amendment to the Constitution and by 42 U.S.C. § 1981. On September 9, 1971, the court ordered the joinder of those eleven outlying districts which are: Comstock Park Public Schools, East Grand Rapids Public Schools, Forest Hills Public Schools, Godfrey Lee Public Schools, Godwin Heights Public Schools, Grandville Public Schools, Kenowa Hills Public Schools, Kentwood Public Schools, Northview Public Schools, Rockford Public Schools, and Wyoming Public Schools. On October 14, 1971, the plaintiffs moved for leave to amend their complaint and filed in connection therewith an amended complaint which added Philip E. Runkel as Superintendent of the Grand Rapids Public Schools, he having since replaced defendant Norman P. Wienheimer, and added as well the State defendants Michigan State Board of Education and John W. Porter, its Superintendent; Kent Intermediate School District and individual members of the Board; William G. Milliken, Governor and Chief Executive Officer of the State of Michigan; and Frank J. Kelley, Attorney General and Chief Legal Officer of the State of Michigan. Motions to dismiss were made by nearly all of the added parties defendant and these were heard together with other motions on November 4, 1971. The court denied these motions, although it did subsequently grant a motion to strike a certain paragraph from plaintiffs’ amended complaint as will appear in the files and records of the cause. On this posture of the pleadings, the matter came on for trial upon all issues except remedy on January 10, 1973. Thus all parties who might be affected by any judgment of the court were given the opportunity to defend on the issues of constitutional violations charged against them by the plaintiffs. Trial commenced January 10 and consumed 27 actual trial days between that date and the close of all proofs on March 14, 1973. Plaintiffs’ complaint charges defendant Grand Rapids Board with maintaining and perpetuating a bi-racial segregated public school system violative of the plaintiffs’ rights to due process and equal protection of the law under the Fourteenth Amendment to the Constitution of the United States. The complaint also alleges that the State defendants in various ways by action and inaction have participated in the creation and maintenance of a bi-racial segregated public school system in the Grand Rapids District and to a limited extent charges the local school district defendants with involvement through action or inaction. In addition to the overall maintenance of a bi-racial and discriminatory school system, plaintiffs allege and proofs go to a number of specific acts and conditions existing within the Grand Rapids School District which they claim are violative of their constitutional rights. I. GEOGRAPHICAL AND HISTORICAL CONTEXT While most of the proofs in the case go to circumstances existing within the City of Grand Rapids and its environs from the middle of this century, a proper perspective and understanding of the issues requires at least some history of more ancient vintage. The City of Grand Rapids is the heart of an urban population and industrial and commercial center lying in the southwest portion of the State of Michigan, the largest such center in the State outside of Detroit. Incorporated as a village in 1838 and as a city in 1850, it lies generally in the southwest quadrant of Kent County. It is the county seat and had a population of 197,649 in 1970. The 1970 county population was 411,044. Its historical importance is due to its location along the Grand River, Michigan’s largest, which enters the city from the northeast, flows southward to bisect a good portion of the central city before flowing west towards its outlet in Lake Michigan at Grand Haven. The Grand Rapids School District, a second class school district, is generally coterminous in its boundaries with those of the City of Grand Rapids, having been so by law until the passage of Public Act 177 of Michigan Public Acts, 1962. The Kent Intermediate School District is a creature of state law with quite limited ministerial and administrative functions. It is not coterminous with the County of Kent, although it lies mostly within the county. There are twenty constituent local school districts within the Kent Intermediate School District, including Grand Rapids and the eleven other local school districts named as added defendants in this suit. Of these eleven added school districts, ten share a common boundary with Grand Rapids. Added defendant Rockford School District does not, and is essentially rural and agricultural in characteristics, although it is readily accessible to Grand Rapids by good highways. The East Grand Rapids School District is essentially coterminous with the City of East Grand Rapids, incorporated as a village in 1891 and as a home rule city in 1926. A residential community of 12,565 in 1970, East Grand Rapids is surrounded on three sides by the City of Grand Rapids. It lies about 2 miles to the south and east of the central business district and immediately adjacent to and due east of the principal areas of black residential population. II. POPULATION and RESIDENTIAL PATTERNS A comparison between the growth of the black and the white population in Grand Rapids is most useful to show the changes which have taken place and when they occurred. The following figures are for total population of all ages: Census Year Kent County Total City of Grand Rapids White % Black % Total 1870 50,403 16,407--99.4% 100--.6% 16,507 1880 62,671 31,584--98.6% 429--1.3% 32,016 1890 73,253 59,657--99% 602--1% 60,278 1900 109,922 86,952--99.3% 604--.7% 87,565 1910 129,714 111,879--99.4% 665--.6% 112,571 1920 159,145 136,472--99.2% 1,090--.8% 137,634 1930 183,041 165,555--98.2% 2,795--1.7% 168,592 1940 240,511 161,567--98.3%-1,660--1% 164,292 1950 288,292 168,775--96% 7,075--4% 175,980 1960 ' 363,187 162,535--91.7% 14,260--8% 177,313 1970 411,044 174,025--88%' 22,296--11.3% 197,649 From the overall population figures, it can be seen that the black population in the City of Grand Rapids was extremely small up to the 1940’s. In 1940 1,660 blacks of all ages resided within the city, only 1% of the total population. The rapid increase in absolute numbers and in percentage of total population is most apparent. Thus, in the twenty years between 1950 and 1970, the actual black population in Grand Rapids tripled from 7,075 to 22,296. Where the increasing black population came to live is shown by the several maps by census tract introduced into evidence as plaintiffs’ exhibits 8 (1950), 9 (1960), and 7 A (1970). To anyone examining the record in this case and endeavoring to obtain an accurate understanding of where actually blacks lived during these respective periods, caution must be had against drawing too many conclusions based upon the maps alone without reference to all of the testimony in the case. The reason, due to no fault of any party, is primarily mechanical. In the first place, it was brought out that the actual areas covered by census tracts were not consistent from census to census. Thus, what might appear to be a shift in residential patterns could, on closer scrutiny, simply be a change in the boundary descriptions of the census tracts used to measure them. Likewise, the maps do not show the actual number of residents in any given census tract and hence can be misleading as to concentrations in one particular area or another. For example, a large part of that area lying along the south bank of the Grand River, downstream from the central business district, marked solidly in the 1950 census as being 50% to 79.9% black, is and always has been uninhabited altogether and used for industrial, railroad and sewer disposal facilities. To gain a more accurate picture, the court requested and the plaintiffs prepared what became plaintiffs’ exhibit 82 and in which, for 1970, the same census data was placed upon the map, but figured on a block-by-block basis. Time and the cost thereof prevented similar treatment of previous years, but the 1970 results are highly revealing and a far more accurate portrayal of actual residential patterns. It will thus be seen on the census tract maps that there was an apparent large area of black population between 5% and 24.9% to the northeast of the general area of black concentration, whereas by the more refined block census data, that population is shown to be located generally in an area bounded by Fuller Avenue, Ball Avenue, Knapp Street and Michigan Street, and to be largely contiguous with other black residential neighborhoods. Again, the concentration earlier mentioned and lying along the south bank of the Grand River is more accurately shown as being concentrated mostly to the east and adjacent to the central black residential district while correspondingly large uninhabited areas are excluded. Also, the block census map for 1970 (PX 82) shows the existence of at least some spreading out of the black population from the central areas into the outlying suburbs which could not be and is not shown by the less refined PX 7A. There was testimony also on the subject. The concentration in the northeast apparent in 1970 is shown to be primarily due to a private housing project, Auburn Heights Subdivision, but even this observation must be tempered with the knowledge that certain of the areas so marked are, in fact, largely uninhabited because of use for public purposes. Similarly, there is shown in Kelloggsville to the south 1970 concentrations of 5% to 24.9% and 25% to 49.9% black population which would appear to have sprung up in the meantime. Actual numbers are not a part of this record, but the proofs indicate that this community is a stable one of long standing. It should be further noted that the maps upon which the various census figures were imposed were recent, and the superhighways and expressways shown on the several maps were not, in fact, present in 1950, adding another consideration, that of the removal from residential use of large areas for highway purposes over the periods of time involved. The court concludes that the growth of the actual residential patterns of the black community in Grand Rapids commenced from concentrations within what is called the inner-city and in an area along the south of Fulton Street, the area closest to the central business district and south and along the railroad tracks and that line which is now marked by Highway U. S. 131 with access to the superhighway. Growth proceeded generally to the south of Fulton Street and eastward to East Grand Rapids until it will be seen that in 1970, there were very high concentrations of black population almost to the exclusion of white, between Wealthy Street to the north, Godfrey Avenue to the west, Stevens, Garden, Oak-dale and Hall Streets to the south and within about two blocks of the East Grand Rapids boundary line to the east. The court finds that by far the vast majority of the black population of all ages within the City of Grand Rapids resides within this area, and that there is consequently substantial de facto residential segregation in the City of Grand Rapids. An understanding of the residential patterns within the City of Grand Rapids requires as well a consideration of the patterns of other ethnic and racial groups besides the black. There is a growing population of Spanish-American citizens in the City of Grand Rapids and the area of greatest concentration is south of Hall Street, just west of the Expressway, that area served by Hall Elementary School and Roosevelt Park Primary School. Another concentration of Spanish-American population finds itself near the Stocking School, on the west side. As to other distinct nationality groups, the most populous is the Dutch. As the court understands it, the Dutch families originally settled in those areas which are now predominantly black and tended thereafter to concentrate in the southwest, in the Mulich Park region, in the Shawnee area to the south of 28th Street. Those of Polish extraction have precipitated to the west side of the city, on the other side of the Grand River and there tend to be concentrations of Polish families on the lower west side in particular. The Italian community has almost altogether dispersed today, but originally resided in the area around Hall Street and Sheldon School, further tending to surround Our Lady of Sorrows Church on Hall Street and Jefferson. Of all the sections of the city, the most diverse in population and makeup is in the northeast area which was characterized as the “melting pot” of Grand Rapids. A. Origins of Residential Segregation Two witnesses were especially helpful in explaining the causes of residential segregation. Milton J. Miller, presently Director of Educational Facilities Planning for the Grand Rapids Board and with the system since 1950, clearly had the most intimate knowledge of school attendance areas, history, residential patterns and movements, almost block-bybloek throughout the city and was usually graced with as much objectivity as any witness who testified. Of great assistance to the court, also, was the testimony of Karl Taeuber, Professor of Sociology from the University of Wisconsin who testified for the plaintiffs as an expert in urban residential patterns, particularly with respect to the segregated patterns of blacks and the reasons for them. Dr. Taeuber testified that there were large migrations of blacks from the southern states to the northern states and cities in World War I and World War II and that these blacks generally moved in upon pre-existing white residential patterns there, displacing the former white residents. He testified that the typical expansion was at the periphery area, but that there was some channeling caused by natural boundaries and other barriers. The degree of concentration has been more pronounced in the north than in the south. Dr. Taeuber created what he called a “segregation index”, a measurement under which an index figure of “0” equals a completely integrated mixture of population, whereas an index of “100” indicates a completely segregated circumstance. Dr. Taeuber had applied his system to approximately 200 cities in the United States which had more than 50,000 population including more than one thousand non-white households in them. He reported trend data also in 108 cities for 1940, 1950 and 1960. The cities studied had an earlier general average segregation index of 60, although some were in the 70’s, 80’s and 90’s. He testified that in comparing regions, there has been a shifting pattern and that there was a different pattern of urban growth between the north and the south. The shifting pattern was more apparent in the south where earlier there had been a wider dispersal of the black population. He testified that in the typical southern cities mass transportation had wiped out scattered pockets of population and that thereafter were conforming very much to the patterns of cities elsewhere in the country. Dr. Taeuber stated that there were, in the scholarly tradition, three main reasons for segregated housing patterns (a) economic, (b) choice and (e) discrimination. It was his conclusion that many whites wished to live in a segregated pattern, but that poll data showed that if blacks preferred to live in segregated patterns, they, in fact, preferred to live with much less of it than they presently have. He stated that there was some separatist movement among blacks in the last decade, but that nevertheless the general preference toward integration continued to prevail. In comparison with other groups having an ethnic identity, Dr. Taeuber testified that the studies using census data for this purpose show that there have in the past been degrees of segregation along other ethnic lines, but that this continues to decrease with each decennial census. Dr. Taeuber stated that while blacks typically have few resources, it is easy to overstate the impact which this fact has upon their concentrated residential patterns. Dr. Taeuber testified that the typical black migrant to a northern state was part of a highly selective group whose average educational level more closely resembled that of the areas to which he was migrating than those from which he came. He stated that there is evidence that race has a bearing on the choice of first residence. However, whereas other minority groups will tend thereafter to disperse, such has not been the history of the black in the northern city, although data tends to indicate some slight dispersal in the 1970 census figures. Dr. Taeuber stated that the typical black migrating to a northern city, either directly from the South or cross migrating from some other area, was young and that thus the more typical age spread of population was not to be expected within residential areas in which he settled. Because the migrants were younger and of child-bearing age and because the birth rate is somewhat higher for black populations, the average age of the black citizen in northern cities is younger than that of the white. Turning to Grand Rapids, Dr. Taeuber stated that according to his index, Grand Rapids had a 1960 segregation index of 90 which had reduced in the last decennial census, to 85, a decline which he felt to be relatively insignificant. The 1970 census data, he recalled, showed approximately 4,000 black families renting dwellings in Grand Rapids with a median rental of approximately $78 per month, whereas 19,000 white families rented with a median rental of •$85 per month. At the same time, 3,000 blacks were owners of homes which had a value of approximately $10,000 and 38,000 whites owned homes having an average value of $15,000. As to all houses valued under $10,000, 1100 were owned by blacks and 7,000 by whites. Dr. Taeuber stated that, compared to other cities, black homeownership in Grand Rapids is quite high. Measuring Dr. Taeuber’s expert but generalized testimony against the facts found to exist in Grand Rapids is most revealing. His testimony concerning black migration from the south generally is confirmed by the population statistics within the City of Grand Rapids over the years involved. His testimony as to natural boundaries or barriers is confirmed in Grand Rapids by the rather apparent barriers posed by the expressways and by the Grand River. His finding of a slight decrease in segregation in cities generally is borne out by census data applying to Grand Rapids. His testimony concerning the age of the migrants and higher birth rate finds much confirmation in the growth of population within the black neighborhoods in the inner-city area of Grand Rapids. The evidence suggests some major causes of black residential concentration. Rapid inflow and growth of black population would to a great extent follow traditional tendencies of minorities and ethnic groups upon arrival in a city to group together. Economic ability of whites to acquire new and more expensive homes farther out would make older homes closer to the center of town more available. This would be particularly true where the increasing affluence of whites during the period, combined with the advent of the expressway, made suburban living both possible and attractive. Bias-generated concerns by both blacks and whites which made the whites inhospitable to black movement elsewhere in the city and correspondingly made the black himself reluctant to move into areas in which he feared a hostile reception had to play a large part. It is certainly reasonable to infer that reluctance on the part of white homeowners to sell their homes to blacks and a similar reluctance on the part of realtors to participate in any transaction which might have that result had much impact. The retained identities of other ethnic groups within the city also had to play an important part. In short, the evidence preponderates strongly in favor of a finding that existing de facto residential segregation throughout the city is the result of factors other than any policies or practices of the Grand Rapids Board of Education or other defendants in this lawsuit. III. THE SCHOOLS A. Quality of Facilities and Faculty There is no claim made and no proof to support any claim that the physical facilities afforded the children in predominantly black schools are inferior to those of the system as a whole. It appears to be universally acknowledged by all who testified on the subject that Grand Rapids schools are uniformly maintained at the very high level. Those schools in the inner-city, black or white, are, as might be expected, older than those in the outlying areas, but they have been well kept and well equipped. Plans of the Grand Rapids Board have contemplated the replacement of many of the schools, but such have been largely delayed by the pendency of this action. In the meantime, the school district has proceeded with plans for the expansion of playground area, landscaping and other improvements which were in progress prior to and at the time of the trial. With regard to the quality of the teaching itself, there was some evidence of dissatisfaction among individual plaintiffs who testified. Many complaints were somewhat typical of those made by parents of school children anywhere of any race. Some complaints appeared justified, but it was a rather interesting observation of the court that in nearly all of those instances, further examination of the witness brought out that the practice complained of was corrected. On the whole, however, the evidence indicated a uniformly high quality of the teachers, both black and white, within the inner-city and without. B. Enrollment Total membership in the public and non-public schools in Kent County for the last six years (1967-1972) has remained relatively stable. (See DX 9). A high point was reached in 1969 when there were 118,439 students enrolled in Kent County schools. A comparison of 1967, 1969 and 1972 is illustrative: 1967 1969 1972 Grand Rapids 34,185 29.2% 35,147 29.7% 34,735 30% 11 added defendants 41,003 35.1% 43,304 36.6% 44,591 38.5% Other public schools 14,864 12.7% 15,529 13.1% 16,256 14.0% Non-public schools 26,876 23.0% 24,459 20.6% 20,271 17.5% 116,928 118,439 115,853 The most pronounced difference has been in the attendance in non-public schools which has dropped from 26,876, or 23% of the total in Kent County, to 20,271 or 17.5% of the total for 1972. The Grand Rapids school system has shown a slight drop in overall attendance from a high of 35,147 in 1969 to 34,735 in 1972. The most dramatic drop in attendance is in the non-public schools which have registered a decrease in excess of 6,600 in the last six years. Statistics furnished do not indicate where these children live. Appendix A (Appendix A is omitted from published opinion and appears only as appended to original opinion) shows, however, the location of these schools. The figure is significant, in any event, as showing the high proportion of children who have traditionally attended non-public schools within the county, and has a two-fold importance in this lawsuit. First, the decrease in non-public school attendance supports a conclusion that there has probably been no significant escape from the public to the nonpublic schools in order to avoid integration efforts of the Grand Rapids School Board, or the possible results of this lawsuit. Second, the relationship of nonpublic school attendance to that of Grand Rapids and the other public schools is significant in understanding the origins of overcrowding which developed within the inner-city. With respect to the membership of the school attendance, the total public school enrollment in the Grand Rapids District and the 11 added suburban districts is given in DX 10 as 78,493. Of this number a total of 8,969 are black, of whom 8,651 attend public schools in the Grand Rapids School District. Again, overall attendance is down slightly from 1971-1972, but relatively stable. The breakdown for 1972 and 1973 follows: STUDENTS NUMBER AND PERCENT BLACK, DEFENDANT SCHOOL DISTRICTS 1972-73 Grand Rapids 8,651 25.5% 33,902 Comstock Park 1 0.1 2,144 East Grand Rapids 6 0.2 3,603 Forest Hills 18 0.4 4,653 Godfrey Lee 2 0.1 1,394 Godwin Heights 13 0.4 3,275 Grandville 30 0.7 4,532 Kenowa 27 0.7 3,633 Kentwood 99 1.6 6,133 Northview 6 0.2 3,439 Rockford 18 0.4 4,210 Wyoming 98 1.3 7,575 Totals 8,969 11.4% 78,493 Turning to the Grand Rapids School District' itself, a breakdown in the public school enrollment from 1939 to date is shown on the chart on the following page. GRAND RAPIDS SCHOOL DISTRICT PUBLIC SCHOOL ENROLLMENT' 1939 to 1973 From PX-83 Year No. of Black and Non-White enrollment Total Enrollment % Black and Non-White 1939--40 621 25,745 2.41% 1940--41 (Missing) 1941-■42 621 24,080 2.58% 1942--43 587 ■22,860 2.57% 1943--44 628 21,666 2.90% 1944--45 740 21,070 3.51% 1945--46 827 21,517 3.84% 1946--47 914 21,486 4.25% 1947--48 1,002 21,441 4.67%' 1948--49 1,136 20,989 5.41% 1949-•50 1,250 20,853 5.99% 1950--51 1,350 20,700 6.52% 1951--52 1,516 21,405 7.08%' 1952--53 1,695 22,373 7.58% 1953-•54 1,968 23,252 8.46% (From Ex G GR Ans. to Interr, [excludes G.R.J.C.]) 1954--55 2,284 23,303 9.80% 1955--56 2,658 24,227 10.97% 1956--57 2,880 25,334 11.37% 1957-■58 3,260 25,826 12.62% 1958-■59 3,576 26,496 13.50% 1959-•60 3,833 26,708 14.35%' 1960-•61 4,197 27,609 15.20% 1961-■62 4,610 30,891 14.92% 1962-■63 4,917 31,664 15.53% 1963--64 5,256 32,106 16.37% 1964-■65 5,635 32,204 17.50% 1965-66 6,032 32,724 18.43% 1966-67 6,579 33,890 19.41% 1967-■68 7,069 33,884 20.86%' 1968-69 7,333 34,528 21.24% Other Racial/Ethnic Year Black Predominantly Span-Am Total Enroll. % of Black 1969- 70 7,568 767 34,579 21.89% 1970- 71 7,739 1,061 34,360 22.52% 1971- 73 8,203 1,074 33,493 24.49%' 1972- 73 8,459 1,155 32,864 25.74% Note: All of above figures (1969-1973) do not include enrollment in special schools. It can be seen that while in 1940 the overall black population in Grand Rapids was only 1% of the total (see chart on page 6), the percentage of black enrollment in 1941-42 was 2.58% in the public schools. Again, in 1950, while blacks accounted for but 4% of the overall population within the city, black school children accounted for 6.52%. The rapid increase in actual numbers and percentages of black residents and also black school children is well illustrated by a comparison year to year of the exhibit above with that which is earlier given. (The earlier chart is found on page 6.) Until the mid-sixties, the Grand Rapids School system continued to operate its schools with traditional school attendance boundaries as it had historically in the past. The elementary schools continued to be neighborhood, walk-in schools. There had been a rather steady growth in overall attendance. White enrollments were increased by annexations in the early sixties, but the black student enrollments in Grand Rapids schools showed a dramatic increase between 1950 and 1970. This was especially true at the elementary level. YEAR PERCENTAGES % NON-WHITE % WHITE NUMBER OF STUDENTS NON-WHITE WHITE TOTAL 1950 888 11,484 12,372 7.2 92.8 1955 1,930 13,727 15,657 12.3 87.7 1960 3,059 13,937 16,996 18.0 82.0 1965 4,007 15,823 19,830 20.2 79.8 1970 5,278 14,412 19,690 26.8 73.2 1972 5,633 12,409 18,042 31.2 68.8 From the foregoing figures, it can be seen that non-white enrollment in elementary schools increased 351% from 1950 to 1965 and another 31.7% from 1965 to 1970. At the same time, white enrollment increased 38% from 1950 to 1965, but decreased 9% from 1965 to 1970. By the time of trial there had been a further increase in black children enrolled in elementary schools and an additional drop of two thousand white children. The concentrations of black elementary school attendance until 1965 was closely reflective of the imbalanced residential patterns which continued to develop. Of a total of 36 elementary schools in 1954, 28 had non-white enrollments of less than 5%, five (Colbrook, Jefferson, Madison, Sigsbee and Vandenberg) had 10-30% non-white, and three had concentrations of black students of over 40.1% (Franklin — 81%, Henry — 82%, and Sheldon— 80%). By 1965, 97% of all non-white elementary students in the system found themselves enrolled in eleven inner-city elementary schools amid steadily shrinking white enrollment. The eleven schools had an average non-white enrollment in 1965 of 83%. By 1970 the average percentage of black children attending the same eleven schools had increased from 83% to 89%, although the black enrollment in the same schools was then only 75% of the total, contrasted to 97%. Thus a much higher percentage of children was receiving a more integrated elementary education, but those remaining were attending “blacker” schools. By the time of trial further changes had occurred. Of the eleven schools, Morris had been taken out of the regular elementary system and employed for Head Start and other programs. The average percentage of black children in the ten remaining schools had experienced a further increase, to 95%. At the same time, the total number of black children attending the schools had dropped from 6,474 in 1970 to 3,944 in 1972 while total non-white elementary attendance had increased from 5,278 in 1970 to 5,633 in 1972. Thus the ten remaining schools in 1972 held 65% of all nonwhite students, down from the 97 % figure in 1965. Significantly, system-wide enrollment of white elementary students had dropped from 15,823 in 1965 to 12,409 in 1972, a decrease of over 3,000. Other evidence and testimony indicated that the percentage rate increase in black school attendance is slackening, and that projections were that overall enrollment would decline, the current kindergarten class being the smallest in 25 years. Prior to 1965, most black children at the junior high and high school levels were concentrated at South. There has been integration of high schools and progress toward integration at the junior, high and middle school levels. Nevertheless, South Middle continued to be approximately 95% black in 1970 and was attended by more than 50% of. all black middle and junior high school students in the system and still is. C. Finance In terms of finance, the Grand Rapids School District enjoys a favorable position compared with the other eleven local school districts added as defendants in this lawsuit. Against an average of $17,038 equalized assessed valuation per child throughout the Intermediate District in 1972-1973, Grand Rapids had an equalized assessed valuation of $22,825 exceeded only by Kenowa Hills and God-win Heights School Districts. Likewise, the Grand Rapids School District enjoys a favorable position in terms of general fund revenues per membership. At $1,-191.03, the General Fund Revenues per child in the Grand Rapids District have been for the past two years the highest of any local school district in Kent County, compared with a county-wide average of $876.27. At the same time the total school millage burden for the Grand Rapids District at $28.60 remained in 1971-1972 below the $31.68 average for all 20 districts within the Kent Intermediate School District. IV. ALLEGED ACTS OF INTENTIONAL SEGREGATION It is a claim of the plaintiffs that both by inaction and by action, the Grand Rapids Board throughout the years in question, confined black students to largely black schools, through the use, in the first instance, of a neighborhood school system in the elementary grades, through failure to avail themselves of opportunities to increase racial balance by changing boundary lines to favor that balance, by building and constructing schools or adding onto existing schools in such a way as to confine or lock in black students. Further, it is the claim of the plaintiffs that what efforts the Board has made and plans to make toward achieving greater racial balance are at the expense of the black students without a corresponding sharing of the burden by the whites, and finally that the justifications and explanations that are given by the Board are nothing but window dressing to obscure an invidious discriminatory intent on the part of the Board. The Grand Rapids Board of Education admits the fact of racial imbalance, both in the residential patterns of the city and in the composition of the elementary, middle and junior high schools in the system. It is the Board’s position that it has traditionally operated what is essentially a neighborhood school policy, color-blind for years and only more recently being oriented to affirmative action to relieve racial imbalance as the occasion arose. It is the Board’s position that the persistent and conscientious efforts of the Grand Rapids Board to achieve greater balance without other disruptive factors which have plagued communities of like size, has in fact achieved as salutary an effect in terms of racial balance as any other program attempted, without impairing the quality of education furnished all children within the system, and without denying to children for whose education it is responsible the equal protection of the law. Plaintiffs called Gordon Foster, Professor of Education at the University of Miami, at Miami, Florida, as an expert in the fields of educational administration, school segregation and school desegregation. It was upon Dr. Foster’s interpretation of the factual data presented that plaintiffs placed their greatest reliance to prove that in its attendance zones, school construction and addition policies, and other actions the Grand Rapids Board was guilty of segregative practices. The following exerpt from the cross-examination of Dr. Foster by Peter Armstrong, attorney for seven of the suburban school districts, will perhaps permit a narrowing of the issues: “Q I think both in this case and some of the other cases you have testified in, you have talked about what I think you have referred to as the classic techniques of segregation on the part of school districts, have you not? A I have on some occasions. I am not sure if I did in this case or not. Q I am not sure whether you did either, but as a result of your having looked at a number of school districts, you have identified certain things that you conceive go along with segregation, or establish segregation, is that right? A Right. Q One of these you have mentioned in some other cases is the concept of intact busing, is that right? A That’s right. Q Where you bus black classrooms and it stays a black classroom in the receiving school, it that right? A Right. Q You didn’t find any evidence of that here, did you? A I was trying to remember. It seems to me there was one case that only lasted one month or two, or something, but I can’t cite it, it’s just— Q Nothing that struck you as significant ? A Apparently not, or I would have had it. Q You have also testified in other cases along this line of technique of busing black students past white schools that had capacity for them, to black schools, predominantly black schools, have you not? A Correct. Q This is one of the classic techniques, in your phrase? A Right. Q You didn’t find any evidence of that here, did you? A I don’t believe so, no, sir. Q You have also testified in other cases about large numbers of optional attendance zones, and in fact, you have found in some of the other situations you have looked at, schools that had many, many optional attendance zones in existence, have you not? A Yes. Q In this case, you have talked about one optional attendance zone that you considered to be significant? A That’s right. Q Crestón ? A Central. Q Central. That is the only optional attendance zone you found here that you thought was significant in the context of your testimony, is that right? A That is all I am aware of, yes. Q You have also testified in other cases as to one of the classic techniques that speaks of segregation, the use of dual and multiple and overlapping attendance zones for situations where the school has no attendance zones at all, do you recall seeing this kind of thing in some of the other cases you have investigated? A Yes. Q You found none of that here, did you? A No, sir. Q You have also testified in other cases that one of the classic techniques of a difference in the physical quality of the schools and services that are rendered in the schools, comparing predominantly black schools with predominantly white schools, is that right? A Yes, I believe so. Q You didn’t find any signficant evidence of that here, did you? A In the data I have used, I would say generally not. The only possibility would be the fact that most of the schools that have been built since 1950 are white schools, almost all of them. As far as . I know, only three black schools have been built and those were all primary units, except for Campau — well, that’s a primary unit. To that extent, I think there has been a differential, otherwise, none. Q Of course, you claim that those schools — you say also the fact that those schools were built and opened predominently black, those three you are talking about, represented some kind of segretory action on the Board’s part, don’t you? A That’s right. Q Now, you also identify as one of the classic methods of — techniques of segregation de jure, the gerrymandering of attendance zones, is that right? A That’s right. Q You didn’t find at the elementary school level here anything that you would characterize as gerrymandering of attendance zones, did you? A About the only possible instance of this, I testified to would have been the move in the south — between South Junior and Burton Junior High. Q I am talking about elementary, now. A Yes, but while the line was moved, this also changed the line for —no. Q That didn’t have anything to do with the elementary school zone, did it? A Only in the feeder pattern sense, that’s right, so I withdraw that statement. Q So at the elementary level, you didn’t find any gerrymandering of attendance zones, did you? A Not generally. Q When you say, “not generally”, you didn’t find any at all, did you? A Not that I testified to, no. Q And at the secondary level, you testified about the one or two in the 1950’s, involving the zone between South Middle and Burton, or what was then South Middle and junior and high school in Burton? A Right. Q Right. And that is all you testified about as far as gerrymandering attendance zones? A I believe that’s right. Q At the secondary level, is that right? A I believe that’s right. Q You also identified as one of the classic techniques of segregation the use — discriminatory use of transfer policies and procedures, have you not? A Yes. Q You didn’t find any evidence of that in this situation either, did you? A No, sir. Q You are an expert in educational administration, I believe, or this is your primary field of teaching, is it not? A Yes. Q Would you agree that the making of a decision as to the location of a new school, or the construction of additions to a school is a fairly complicated one that involves a number of factors? A Yes. Q And that you have to make projections based on the information that is available at the time as to the future enrollment patterns, population patterns, and so on? A Correct. Q Would you also agree that kind of decision, the location of a school, or the decision to make an addition to a school, in addition to being based on those factors, has to be based really on a look at the overall school system, that you cannot take one part of it and isolate it from the rest of the system and make a decision of that kind? A I would agree with that, yes. Q Really to evaluate any given site location, or decision to build or add to a school, you have to look at the whole system as it existed at that time, in the light of the building and projections that were being made at the time, do you not? A Plus the educated guesses that you talk about for the future, yes.” It was Dr. Foster’s opinion that in its constructions of new schools and additions to existing schools, the Grand Rapids Board was guilty of segregative practices which in effect confined the black population to black schools. Anyone examining his testimony must necessarily be cautioned to read it in its entirety, and against the entire record. It is also particularly necessary to evaluate his testimony covering the period since 1965, in terms of long-range planning then being considered by the Board and in the light of enrichment and compensatory programs which were then about to be undertaken by the Grand Rapids Board with state and federal assistance. The thrust of Dr. Foster’s testimony was remedy, as was, indeed, the principal area of his expertise. While the issue of remedy in the lawsuit was reserved to later stages, a point consistently made by defense counsel, the court nevertheless considered it relevant and admissible as throwing light on any alternatives available from time to time, and consequently upon the motives, intent and effects of Board action. •Care must also be taken in understanding Dr. Foster’s references to “segregated” and “desegregated” schools within the system, for in terms of percentages as a measure, his standard differs through his testimony. His inclusion of suburban, all-white, schools annexed to the Grand Rapids system as among those “opening segregated” must certainly be viewed With considerable skepticism when employed to support an inference of segregative intent on the part of the Grand Rapids Board. Care had to be taken to recognize the continuing obligation of the Board to all students of lower SES (Socio-Economics Status), and to the existence within the community of other minority students, in the later years, factors frequently overlooked when the focus is primarily black and white. 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. A. Capacity It became apparent early in the trial that the question of the student capacity of a given school at a given time would be hotly disputed by the parties, and it was. The issue assumes great importance in determining the motives and intent of Board action concerning attendance zones, additions to existing buildings, new construction, and feeder patterns. The facts were involved, but the question for the court’s consideration was relatively simple: how, under the circumstances at a given time, would a school board fairly and realistically employ its available classroom space, without any intent to discriminate? And corollary to that question, if the Board’s action did not appear to conform to that measure, to what extent is the difference attributable to an intent either to discriminate or perhaps to integrate? The dispute centered mainly around the capacity of the “inner-city” schools. Inner-city schools were eighteen schools in the central area of Grand Rapids which were designated target areas as measured by indices of poverty under federal and state guidelines, as the court understands. These schools were: Sheldon, Henry, Vandenberg, Franklin, Sigsbee, Coit, Lexington, Strait, Kensington, Jefferson, Maple-wood, Campau, Alexander, Morris, Madison, Stocking, Hall and Colbrook. In 1966 these schools were placed under the supervision of Joseph H. McMillan as Director of Inner-City schools. It was Dr. McMillan’s task to coordinate and take advantage of developing federal and state programs specifically aimed at such areas. The criteria were not racial, although student attendance in the schools was about 50% black at the time. The federal criteria was socio-economic status (SES), based upon income level, number of broken families, family education levels and other like factors. In their proofs and arguments with respect to over and under-utilization, plaintiffs rely upon “standard capacity” figures, a measure which defendants urge is completely unrealistic when applied for the purposes of this ease, especially to the inner-city schools. The “standard rated classroom capacity” of a given school is reported by the District through the Intermediate School Board and hence to the State as part of its overall statistical compilations. The proofs established that the system of evaluating schools by standard rate of capacity is one which commenced in 1963 or 1964 on a nationwide basis so as to bring some uniformity to nationwide and statewide school statistics. Thus, each classroom is presumed to be suitable to accommodate 30 students and the standard rated capacity of a given school is basically the product of the number of rooms times 30. The plaintiffs make their case for under-utilization upon a simple comparison between the standard rated capacity of a given school and the actual enrollment. For anything but the broadest statistical purposes, the rate of capacities of schools, particularly older schools, are totally inadequate tools for measuring over-utilization or under-utilization of a school. In fact, it is almost necessary to examine each school individually in the light of its present and potential use, room by room, to make any intelligent conclusion on this question. Many variant circumstances arise to affect the judgment. In the first place, an unerring ability, uniformly and without variation, to place 30 school children in each classroom throughout a given district is, of course, unrealistic. Variations will inevitably occur. School rooms themselves differ in size and layout from room to room and from school to school. Being older, it is logical to observe that inner-city schools would not have been designed for the variety of programs which have been provided in schools more recently. Thus, what happens when enrichment programs such as music or art are added? Or laboratories? Or lunchrooms? Or gymnasiums? What happens when one room is ued for morning and afternoon kindergarten classes ? What about administrative offices? Can a manual arts or home economics class house as many students in the same space as regular fifth grade scholastic studies? What happens when certain imaginative programs are introduced in the system which may require fewer or greater numbers of students in a given room according to an optimum size for a particular program? Further complicating the situation was the decision of the Grand Rapids Board to reduce the student-teacher ratios within the inner-city schools to 23 or 25 to 1, in the middle-city to 25 or 27 to 1 and to establish it at 30 to 1 in the outer areas. The conclusion to recognize the need for more personal attention in the inner-city schools, seems to be a wise one, on the face of it. It is not at all illogical to conclude that children in the inner-city who come from more modest social and economic backgrounds may, indeed, need better guidance and the educational wisdom of this decision of the Board is unchallenged. Dr. McMillan acknowledged the desirability of this. If, in fact, there are twenty rooms in an inner-city school and the 23 to 1 ratio is maintained, does it therefore follow that the school is under-utilized to the extent of 140 students? What happens when the students in the inner-city school complain that there is less area of playground space per child available to them than is available in a new school which has been built toward the outskirts of town? It cost $100,000 per acre for additional land for Jefferson School as against $4-5,000 per acre farther out. According to Mr. Runkel, Grand Rapids was one of the early leaders in the Head Start Program, the value of which is almost universally conceded as a vital tool in giving the very youngest children in economically depressed areas a chance to enter the school system more on a par with their peers. Where and what classrooms will be used for these youngsters ? The myriad special programs, both compensatory and enriching, as well as those programs which are designed to bring parents in closer communication with the school system and to render them assistance, are discussed elsewhere, but it must be apparent that the influx of this type of effort had to have profound effect upon the utilization of school space and most particularly within the inner-city where they would be most accessible to those in need. Dr. Foster’s testimony was useful to the court in understanding techniques of integration and segregation generally, and his criticism of Board action from time to time was helpful in enabling the court to scrutinize more precisely those actions which were charged to be discriminatory. His opinion testimony, however, was based primarily upon standard capacity figures and accordingly could at best be no more valid than the facts upon which he relied. The court concludes that the schools in the inner-city were overcrowded during most of the time involved. The court also concludes that they still would be overcrowded, but for the efforts which the Board has made to transport school children within the inner-city to schools without. At the same time there is a truth in plaintiffs’ observations that inner-city schools to some measurable extent presently are underutilized, even taking into account all of the foregoing factors. The present under-utilization is nowhere near that proportion claimed by plaintiffs. At the same time, it exists, and it is primarily because the Board is endeavoring to give more and more elementary school children of low SES within the inner-city a broader experience at an earlier level. It exists also because of Board reluctance to bring in and exchange students from the outer areas of the school district, and this reluctance is based primarily upon an apprehension that by doing so, an outflow of white population from the district will be generated and will, in the end, be self-defeating of their ultimate purposes. The extent to which such apprehension may be reasonable or justified and the court’s opinion as to whether such is a permissible consideration by a school board in its efforts to eliminate racial imbalance in its school system is discussed infra. B. School Construction Plaintiffs, mostly through the testimony of Dr. Foster, criticize the actions of the Grand Rapids Board in the construction of new schools and additions to existing schools which took place from 1950 to date. They claim essentially that these activities tended to compact and hence confine the black population and prevent its more even distribution throughout the school district. They point to numerous additions to schools which were predominantly black or predominantly white, such as Huff School in 1951 and 1955; Sheldon School in 1955; Campau Park School in 1965; Madison Park in 1958, 1961 and 1967; Henry School, Jefferson School and many others. They point to the construction in predominantly black neighborhoods of Campau Park and Maplewood Schools, especially, and of Roosevelt Park School which was to share the Hall School- zone. The charge demanded close scrutiny by the court, because caselaw and expert testimony reveals that construction policies can be strongly indicative of proper or improper intent on the part of school boards. Following the trial, the court reviewed all of the testimony, its notes, and the exhibits, matching them against one another in order to make what has to be, essentially, a value judgment. The construction of Campau School in 1956 particularly had to be scrutinized because it was the subject of controversy at the time. Campau School and other early school construction and addition must be understood in the light of conditions as they were developing in the early 1950’s. The post-World War II baby boom was having its effect, as was the rapid influx of black citizens into the inner-city and the corresponding concentration of children in residential neighborhoods far greater than had existed before. Concepts of walk-in, or neighborhood schools, were firmly established. World War II had seen the suspension of much needed school construction, generally, and the immediate need was especially felt at the elementary or even early elementary level. The conclusions of plaintiffs and Dr. Foster notwithstanding, the proofs clearly indicate a Board desire to place the schools and the additions to existing schools where the children were, regardless of race. The site for Maplewood School had been acquired years before. Construction of Campau School was apparently in accord with the recommendations of a study by the University of Chicago, a circumstance which Dr. Foster dismissed by the unsupported inference that the recommendation had to be colored by the fact that the Board commissioned and paid for the study, a condition which he did not see as affecting his own objectivity. It is apparent that any possible alternatives would have drawn the same objection. Campau School was well built and similar in design and quality to schools being built farther out in the city to meet expanding needs there. Failure to build new schools in predominantly black neighborhoods would undoubtedly have brought claims of discrimination in view of new construction elsewhere. So would have efforts to require black children, particularly the younger ones, to walk to adjoining schools, also overcrowded, or to new schools built at more distant peripheries. The several decisions objected to may, or may not have been naive, based upon hindsight and later experience and educational concepts. The court is unable, however, to find that they were motivated by segregative intent. To determine otherwise, it is necessary to find that, for all practical purposes, the Grand Rapids Board had an affirmative duty at the time to abandon its neighborhood school concepts and to institute cross-transportation of nearly all school children at the elementary level as soon as the growing racial disproportion in the residential population first became apparent. In the context of the times, it was unrealistic. C. The Joint Policy Statement and the Master Plan On April 23, 1966, the Michigan State Board of Education and the Michigan Civil Rights Commission adopted a Joint Policy Statement which reads as follows: “In the field of public education Michigan’s Constitution and laws guarantee every citizen the right to equal educational opportunities without discrimination because of race, religion, color, or natural origin. Two departments of state government share responsibility for upholding this guarantee. The State Board of Education has a constitutional charge to provide leadership and general supervision over all public education, while the Michigan Civil Rights Commission is charged with securing and protecting the civil right to education. “In addition to the declaration of public policy at the State level, the United States Supreme Court, in the case of Brown vs. Board of Education, ruled: ‘that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.’ “The State Board of Education and the Michigan Civil Rights Commission hold that the segregation of students in educational programs seriously interferes with the achievement of the equal opportunity guarantee of this State and that segregated schools fail to provide maximum opportunity for the full development of human resources in a democratic society. “The State Board of Education and the Civil Rights Commission jointly pledge themselves to the full use of their powers in working for the complete elimination of existing racial segregation and discrimination in Michigan’s public schools. It shall be the declared policy of the State Board of Education that in programs administered, supervised, or controlled by the Department of Education, every effort shall be made to prevent and to eliminate segregation of children and staff on account of race or color. “While recognizing that racial imbalance in Michigan schools is closely related to residential segregation patterns, the State Board of Education and the Civil Rights Commission propose that creative efforts by individual school districts are essential and can do much to reduce or eliminate segregation. Local school boards must consider the factor of racial balance along with other educational considerations in making decisions about selection of new school sites, expansion of present facilities, reorganization of school attendance districts, and the transfer of pupils from overcrowded facilities. Each of these situations presents an opportunity for integration. “The State Board of Education and the Civil Rights Commission emphasize also the importance of democratic personnel practices in achieving integration. This requires making affirmative efforts to attract members of minority groups. Staff integration is a necessary objective to be considered by administrators in recruiting, assigning, and promoting personnel. Fair employment practices are not only required by law; they are educationally sound. “The State Board of Education and the Civil Rights Commission further urge local school districts to select instructional materials which encourage respect for diversity of social experience through text and illustrations and reflect the contributions of minority group members to our history and culture. A number of criteria are enumerated in “Guidelines for the Selection of Human Relations Content in Textbooks”, published by the Michigan Department of Education. “The State Board of Education and the Civil Rights Commission believe that data must be collected periodically to show the racial composition of student bodies and personnel in all public schools, as a base line against which future progress can be measured. Both agencies will begin next month to assemble information on the present situation. “To implement these policies the State Board of Education has assigned staff of the Department of Education to work cooperatively with the Civil Rights Commission and local school authorities for the purpose of achieving integration at all levels of school activity. The Michigan Civil Rights Commission also stands ready to assist local school boards in defining problem areas and moving affirmatively to achieve quality integrated education.” Prior to the 1966 Joint Policy Statement, the Grand Rapids Board had already been studying the racial imbalance which existed within the system in connection with long-range plans for school construction. It had in June, 1965, appointed Dr. Donald Leu and Dr. John McNicholas of Michigan State University to survey and report upon its secondary school needs. That report was completed and presented to the Grand Rapids Board of Education in August 1966. On November 1, 1965 the