Full opinion text
TABLE OF CONTENTS Page I. PRELIMINARY MATTERS............................ 771 A. Introduction...................................... 771 B. Appointment of Class Counsel, Class Certification, and Dismissal of Mooted Plaintiffs.................. 77* C-. Dismissal of the Defendant Board..................... 77® II. FINDINGS OF FACT ................................. 777 A. General Background............................... 777 1. Introduction to the Findings of Fact............... 777 2. Definitions and Symbols......................... 778 3. System Government............................ 77® 4. System Growth................................ 779 5. Black Population Growth........................ 779 6. Black Residential Patterns....................... 780 7. The Neighborhood School Policy .................. 780 B. System Growth and Overcrowding.................... 781 C. Boundary Changes................................. 782 D. Facilities......................................... 784 1. School Construction, Building Additions, and Modernization............................ 784 2. Playground Space.............................. 7^7 3. Substandard Classrooms......................... 7^7 E. Bussing Programs................................. 7^7 F. Student Transfer Policies ........................... 7^1 G. Personnel Practices................................ 7^4 1. Teacher Hiring ................................ 7^4 2. Substitute Teachers............................. 7^5 3. Teacher Placement ............................. 7®5 4. Teacher Quality................................ 7®8 5. Social Workers................................. 800 6. Principals and Administrators..................... 800 H. The Impact of Socio-Economic Variables on Educational Achievement......................... 801 I. The Compensatory Educational Program ............. 802 1. Special Staffing................................ 803 2. Curricular Materials............................ 803 3. Social Services................................. 804 4. Psychological Services........................... 804 J. Special Programs.................................. 804 1. The Reading Services Program.................... 804 2. The Special Class Program....................... 805 3. The Superior Ability Program .................... 805 4. Trade and Technical Program..................... 806 K. Financial Expenditures............................. 806 1. Operating Expenditures......................... 807 2. Construction Expenditures....................... 807 L. Board Attitudes and Intent.......................... 808 M. Racial Imbalance.................................. 810 N. Causes of Racial Imbalance.......................... 812 III. CONCLUSIONS OF LAW 813 IV. PINAL MATTERS .. .'............. .;.................. 821 A. Remaining Issues.................................. 821 B. Appointment of a Special Master.................. 822 C. Entry of Partial Judgment and Certification of Appeal ...................................... 824 DECISION AND ORDER (Including Findings of Fact and Conclusions of Law) REYNOLDS, Chief Judge. I. PRELIMINARY MATTERS A. Introduction In this school desegregation case, plaintiffs seek declaratory and injunctive relief against acts of the defendants allegedly violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. On March 28, 1968, plaintiffs were granted leave to file an amended complaint. The amended complaint names forty-one minor plaintiffs who bring the action by their parents and next friends on behalf of themselves and two classes. Named as defendants are the Board of School Directors of the City of Milwaukee and sixteen individuals sued in their official capacities as members or servants and agents of the defendant Board. Federal, jurisdiction is invoked under 28 U.S.C. § 1343, the jurisdictional counterpart of 42 U.S.C. § 1983. The amended complaint claims that the defendants have acted to create and maintain unlawful racial segregation in the Milwaukee public school system. I have concluded that segregation exists in the Milwaukee public schools and that this segregation was intentionally created and maintained by the defendants. Such segregation is violative of the equal protection of the laws guaranteed to all Americans by the Fourteenth Amendment and cannot lawfully be allowed to continue. I shall accordingly order that the Milwaukee school system be integrated; that the defendants forthwith begin the formulation of plans to effectively achieve that goal; and that a master be appointed to make recommendations to the Court with respect to the question of an appropriate remedy. In addition, the Court has determined that this action may be maintained as a class action on behalf of two plaintiff classes, and has concluded that these classes should be represented in all further proceedings by appointed counsel. B. Appointment of Class Counsel, Class • Certification, and Dismissal of Mooted Plaintiffs The amended complaint alleges that thirty of the minor plaintiffs are socioeconomically disadvantaged Negroes and members of a class which they seek to represent, described in the amended complaint as “Negro students attending certain public schools of the City of Milwaukee * * * who are subjected to socio-economic disadvantages, and who are denied their rights to equal educational opportunity by virtue of defendants’ practices, rules, and regulations which bar the maintenance of racially integrated schools.” The remaining eleven minor plaintiffs are alleged to be socio-economically favored non-Negroes and members of a class which they seek to represent, described in the amended complaint as “non-Negro students attending certain public schools of the City of Milwaukee * * * who are being denied their rights to equal educational opportunity by virtue of defendants’ practices, rules, and regulations which bar the maintenance of racially integrated schools.” The amended complaint in this action was filed over seven years ago. Neither the plaintiffs nor the defendants, however, have ever made a Rule 23(c)(1) motion for a determination of whether or not the action can be maintained on behalf of the alleged classes. This oversight on the part of counsel and the Court with respect to the question of class action certification is unfortunate; at this juncture in the proceedings, however, such a determination is both necessary and appropriate. Jeffery v. Malcolm, 353 F.Supp. 395, 396 (S.D.N.Y. 1973). In light of the rather substantial passage of time since the filing of the amended complaint, the Court made inquiries of counsel with respect to the issue of mootness. See generally, Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42. L.Ed.2d 532 (1975), and Indianapolis School Commissioners v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975). In response to the Court’s inquiry, counsel for the plaintiffs filed three affidavits on December 2, 1975. On December 29, 1975, the Court received a letter from the defendants’ counsel reciting the results of an examination of the school system’s records. From the affidavits and letter, the following appears: Of the 30 black plaintiffs, 5 are presently enrolled in the Milwaukee public school system, 10 have graduated from the system, 1 has moved out of the system, and the present enrollment statuses of 14 are unknown^ Of the 11 nonblack plaintiffs, 3 are presently enrolled in the Milwaukee public school system, 1 has graduated, 1 has moved out of the system, and the present enrollment statuses of 6 are unknown. It is well established that class certification is appropriate in cases challenging segregation in public schools. See e. g., Vaughns v. Board of Education of Prince George’s County, 355 F.Supp. 1034 (D.Md.1972), supplemented, 355 F.Supp. 1038 (D.Md.1972), remanded on other grounds, 468 F.2d 894 (4th Cir. 1972), on remand, 355 F.Supp. 1044 (D.Md.1972); Potts v. Flax, 313 F.2d 284 (5th Cir. 1963). Such suits are particularly appropriate for certification under the provisions of Rule 23(b)(2) which is available in situations where “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Indeed, the Advisory Committee Notes to Rule 23(b)(2) indicate that school desegregation cases fall squarely within the intended scope of the rule: “Illustrative are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.” But the Court cannot rest upon a mere finding that the subject matter of this suit is of a kind which is readily susceptible to class action treatment under Rule 23(b)(2). Before a class may be certified thereunder, the Court must first be satisfied that the prerequisites to a class action set forth in Rule 23(a) have been met. The Court will accordingly undertake a seriatim consideration of those factors. The first prerequisite, set forth in Rule 23(a)(1), is that “the class is so numerous that joinder of all members is impracticable.” During the 1975 school year, 114,180 students were enrolled in the Milwaukee public school system. The Court is convinced that in such circumstances, joinder is not a practical alternative to class action treatment. The second prerequisite, set forth in Rule 23(a)(2), is that “there are questions of law or fact common to the class.” In passing on the plaintiffs’ claims, the Court must first determine what actions were taken by the defendants and what the effects of those actions were, and then make a finding as to the lawfulness of the defendants’ practices. These factual and legal questions are clearly common to the alleged classes. The third prerequisite, set forth in Rule 23(a)(3), is that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Once again, the Court concludes that this prerequisite is easily met. With the benefit of hindsight, it is clear that the claims of the representative parties have not been atypical but, to the contrary, have been fully representative of the claims of the classes. The final prerequisite to class action treatment, set forth in Rule 23(a)(4), is that “the representative parties will fairly and adequately protect the interests of the class.” At the outset, it must be noted that Rule 23(a)(4)’s requirement of adequacy of representation is separate from Rule 23(a)(3)’s requirement of typicality, and both requirements must be met before an action may proceed on behalf of a class. An atypical representative party will not be allowed to prosecute a class action, regardless of the adequacy of his representation; similarly, the typicality of a named representative party does not necessarily guarantee adequate representation. Although the distinction between the two requirements is not crystal clear, Rule 23 suggests that a separate determination with respect to the question of adequacy of representation is in order. Rule 23(a)(4) implicitly refers to both the representative parties and their attorneys when it speaks of adequate protection of the interests of the class. Brandt v. Owens-Illinois, Inc., 62 F.R.D. 160, 165 (S.D.N.Y.1973). Thus, in considering whether a litigant will adequately represent a class, the Court must look at two criteria: whether the representative parties’ attorney is qualified, experienced, and generally able to conduct the proposed litigation, and whether there is any probability that the suit is collusive or that the named parties have interests antagonistic to all or part of the class. Williams v. Local No. 19, Sheet Metal Workers International Association, 59 F.R.D. 49, 55 (E.D.Pa.1973). In making a determination under Rule 23(a)(4), the personal characteristics of both the representative parties and their counsel must be examined. In the Matter of Goldchip Funding Co., 61 F.R.D. 592 (M.D.Pa.1974). Stavrides v. Mellon National Bank & Trust Co., 60 F.R.D. 634 (W.D.Pa.1973). Putting the question of adequacy of counsel aside for the moment, the Court concludes that those plaintiffs who are presently enrolled in the Milwaukee public school system will adequately represent the two classes of pupils alleged in the amended complaint. The record contains no suggestion that this suit is collusive, nor does it appear that the interests of the presently enrolled plaintiffs are in any way antagonistic to the interests of the asserted classes. In determining the counsel portion of the adequacy of representation requirement, the “ * * * Court should weigh, among other factors, the actual qualifications and experience of the self-selected champion for the proposed class. * * * Skilled representation may be crucial, for the outcome of a class suit— whether favorable or adverse to the class — is binding on the members of the class. * * * ” Jeffery v. Malcolm, 353 F.Supp. 395, 397 (S.D.N.Y.1973). In cases where it has been determined that the experience, qualifications, and skills of the representative party’s counsel are inadequate, courts have refused to allow the action to proceed on behalf of a class. Jeffery v. Malcolm, supra. Most of the reported cases considering the question of adequacy of counsel involve situations where the issue of class action certification has been raised at a relatively early point in the proceedings. The problem assumes different proportions where, as here, the question of class action certification first arises after the underlying claims have gone to a trial on the merits. In such circumstances, the Court is convinced that both the standards of legal representation and the response to a finding of the inadequacy thereof should be tailored to and reflect the posture of the proceedings. Although at the time of the filing of the amended complaint plaintiffs were represented by no less than seven lawyers, subsequent events, including the withdrawal of attorneys from the National Association for the Advancement of Colored People (“NAACP”) on the morning of trial, have left the plaintiffs with only one attorney, Mr. Lloyd A. Barbee. Mr. Barbee is an accomplished practitioner, and the Court commends him for his dedication and perseverance throughout the long course of this protracted piece of litigation. The Court would furthermore make a finding that the services of Mr. Barbee to date have been more than adequate, and that the members of the alleged classes have been adequately represented by his diligent efforts. At the same time, however, the Court must be conscious of the fact that the finding of liability contained in today’s decision marks the advent of a new stage in these proceedings. The Court will take steps to facilitate an appeal from the finding of liability should the parties so desire, but remedial efforts will proceed unabated during the course of any appellate review. In light of the possibility of an appeal and remedial efforts proceeding simultaneously, and giving due consideration to the fact that remedial efforts will proceed at an accelerated pace, the Court has concluded that the interests of the two alleged classes cannot be fully and adequately represented in future proceedings by a single practitioner, moreover a single practitioner who has, as does Mr. Barbee, the additional demanding duties of a representative in the state legislature. As previously noted, the peculiar circumstances in which the question of class certification arises and, in particular, the overwhelming demands which will be placed on the classes’ counsel in the near future, warrant the application by this Court of a heightened standard of counsel adequacy at this point in the proceedings. It should be emphasized that the result of this heightened standard’s application is not intended in any way to adversely reflect on Mr. Barbee’s efforts to date, but is a realistic appraisal by this Court of the expanded needs of the asserted classes in subsequent proceedings. In a similar manner, the Court is persuaded that the circumstances of this case militate against the usual consequence of a finding that the representative parties’ counsel cannot adequately represent the interests of the proposed classes, i. e., a refusal to certify class action status. Mr. Barbee has adequately represented class interests to date, and the finding of liability which the Court will today enter is evidence thereof. The efforts and resources which have already gone into this case cannot be overemphasized. Giving due regard to considerations of judicial economy, the Court deems it appropriate to appoint counsel to represent the interests of the absent class members. The Court is convinced that this step is fully consistent with the spirit of Rule 23 of the Federal Rules of Civil Procedure. Rule 23 imposes on the Court an obligation to proceed with flexibility and imagination in structuring the course of a class action. Forbes v. Greater Minneapolis Area Board of Realtors, 61 F.R.D. 416, 417 (D.Minn.1973). At the same time, the Court has responsibilities as the guardian of the rights of the absentee class members, and to carry out those responsibilities, is “vested [with] broad administrative, as well as adjudicative, power.” Greenfield v. Villager Industries, Inc., 483 F.2d 824, 832 (3rd Cir. 1973). It must be remembered that the creation of a class action is a two-step process, for “both the class determination and designation of [class] counsel * * * come through judicial determinations * * Alpine Pharmacy, Inc. v. Chas. Pfizer & Co., Inc., 481 F.2d 1045, 1050 (2d Cir. 1973). In certifying a class action, the Court not only confers upon absent persons the status of litigants, but in addition it creates an attorney-client relationship between those persons and a lawyer or group of lawyers. While in most instances lawyers designated as legal representatives of the class are the retained counsel of the named representative parties, there appears to be no good reason why this should necessarily be so. The relationship between the representative parties and their lawyer or lawyers is one of private contract; the relationship between the class counsel and the members of the class, apart from the representative parties, is one of court creation. To hold that the Court is limited in its choice of class counsel to attorneys appearing for the representative parties — to assert, in effect, that the class will be represented by those attorneys or not at all — is to instill a controlling element of entrepreneurial initiative into the situation which may be contrary to the best interests of the class which the Court has a fiduciary obligation to protect. The Court concludes that it is in no way anomalous to hold that the representative parties are, as persons, adequate representatives of a class, and that those parties may continue to be represented by their privately retained counsel, and at the same time to hold that the interests of the absent class members will be best served by the appointment of separate counsel. While unable to point to direct precedent for such a conclusion, the Court finds that indirect authority provides substantial support for this procedure. The appointment of class counsel other than the lawyer for the representative parties bringing the suit may well be necessary whenever the device of a subclass is used. Brandt v. Owens-Illinois, Inc., 62 F.R.D. 160, 171 (S.D.N.Y.1974). In situations where counsel for the representative party is unable, either personally or through his firm, to provide the requisite legal services (as, for example, where simultaneous depositions are scheduled at various locations throughout the country), the Manual for Complex Litigation recognizes that the interests of the class may be best served by the employment of additional counsel. 1 Moore’s Federal Practice, Part 2, § 1.44, at 40-41 (2d ed. 1975). Finally, Rule 23 itself, in subsection (d) thereof, provides that absent members of the class may intervene with counsel of their own and, more generally, constitutes recognition of the Court’s residual power to issue orders in conduct of actions to which the rule applies. In considering the appointment of counsel to represent the classes álleged in the complaint, the Court has been particularly conscious of the tremendous demands which representation of the classes will place upon counsel. As previously noted, it is unlikely that any individual practitioner would be able to meet those demands. The Court accordingly deems it necessary to appoint as class counsel an individual who will have access to the substantial legal resources of a large law firm. With that in mind, the Court has decided to appoint Irvin B. Charne, of Milwaukee, Wisconsin, to represent the absent class members in the future course of this litigation. Mr. Charne heads a prominent Milwaukee firm of seventeen lawyers whose services will undoubtedly be necessary as the pace of this action increases. The appointment of Mr. Charne is in no way intended to preclude the participation of the representative parties’ retained counsel in subsequent proceedings. Mr. Barbee’s service to date has been laudable, and his continued contributions in the future, based upon his experience and expertise in this area, will be both necessary and invaluable. In accordance with the foregoing and pursuant to the provisions of Rule 23(c)(1), the Court will order that this action be maintained as a bipartite Rule 23(b)(2) class action. The first class shall consist of all black pupils presently enrolled and those black pupils who will in the future become enrolled in the Milwaukee public school system. This class will be represented by the five presently enrolled black plaintiffs: Kevin Armstrong, Kraig Armstrong, Mary Lou Hicks, Presten Hicks, and Jean Robinson. A second class consisting of all non-black pupils presently enrolled and those nonblack pupils who will in the future become enrolled in the Milwaukee public school system will also be certified. This class will be represented by the three presently enrolled nonblack plaintiffs: Andrew Smith, Grantley H. Smith, and Kermit Smith. The five presently enrolled black pupils and the three presently enrolled non-black pupils will continue to be represented by Mr. Barbee. The remaining members of the certified classes will be represented by Mr. Chame. The Court is not unmindful of the fact that each of these lawyers will be representing members ^>f two separate classes. At the present time, it does not appear that the interests of these two classes are in any way antagonistic, or that the interests of either class will be prejudiced by counsel’s representation of both. See Brandt v. Owens-Illinois, Inc., 62 F.R.D. 160, 171 (S.D.N.Y.1973). If in the course of future proceedings it appears that the interests of these two classes diverge, the Court will entertain a motion for the appointment of separate counsel for each class. Since the amended complaint seeks declaratory and injunctive relief only, the claims of the thirteen plaintiffs whom the record establishes have graduated from the system or moved from the district are presently moot. Accordingly, the following plaintiffs will be dismissed from the action: Craig Amos, Jeffery Amos, Everett Keith Armstrong, Ann Marie Danforth, Carolyn Harper, Alberta Louise Hicks, Sylvia Hicks, Donna Jean O’Neal, Kim A. Robinson, Ronald K. Robinson, Cherry L. Smith, Harvard Watkins, and Vivian Watkins. Fourteen plaintiffs remain whose present status is unknown. In the absence of an affirmative showing of a continuing case or controversy between these plaintiffs and the defendants, the Court feels constrained to dismiss them from the action. If in fact they are presently enrolled in the Milwaukee public school system, their claims may be considered to be subsumed in the claims of the certified classes. At this time, it is appropriate to comment upon the applicability of 20 U.S.C. § 1617, which in relevant part provides: “Upon the entry of a final order by a court of the United States against a local educational agency * * * for failure to comply with * * * the fourteenth amendment to the Constitution of the United States as [it] pertain[s] to elementary and secondary education, the court, in its discretion, upon a finding that the proceedings were necessary to bring about compliance, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” The record in this case clearly reveals that this lawsuit was necessary to rectify the unconstitutional segregation which exists in the Milwaukee public school system. It is similarly clear that today’s decision establishing the liability of the defendants provides a basis for the award of attorneys’ fees. “ * * * [T]he entry of any order that determines substantial rights of the parties may be an appropriate occasion upon which to consider the propriety of an award of counsel fees in school desegregation cases.” Bradley v. School Board of the City of Richmond, 416 U.S. 696, 722-723 n. 28, 94 S.Ct. 2006, 2022, 40 L.Ed.2d 476 (1974). In accordance with 20 U.S.C. § 1617, the Court will, upon an appropriate motion and supporting affidavits, award costs to the named plaintiffs’ counsel, including reasonable attorney’s fees, for his efforts to date, such costs to be paid by the defendants. In addition, the Court will entertain motions from both the named plaintiffs’ and the absent class members’ counsel for the award of costs, including subsequently incurred reasonable attorney’s fees, from time to time as the remedial efforts proceed. C. Dismissal of the Defendant Board The Court also concludes that it is necessary to dismiss as a defendant the Board of School Directors of the City of Milwaukee. As previously noted, plaintiffs brought their suit under 42 U.S.C. § 1983 which reads as follows: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” In City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), the Supreme Court concluded that a city was not a “person” within the scope of § 1983. Although there is no Supreme Court decision squarely in point, the Court believes that a school board is similarly not a “person” for purposes of § 1983. See, Adkins v. Duval County School Board, 511 F.2d 690 (5th Cir. 1975); Burt v. Board of Trustees of Edgefield City School District, 521 F.2d 1201 (4th Cir. 1975). As a consequence, this Court does not have subject matter jurisdiction to consider plaintiffs’ claims against the defendant Board under 28 U.S.C. § 1343. City of Kenosha v. Bruno, supra. Nor does jurisdiction exist under the federal question provisions of 28 U.S.C. § 1331. The complaint seeks only equitable relief and does not allege any amount in controversy, much less an amount in excess of $10,000. The Court will accordingly dismiss the defendant Board for lack of subject matter jurisdiction. The dismissal of the Board, however, does not affect the Court’s ability to proceed to a consideration of the merits of this action. Sixteen named individuals remain as parties defendant; they are clearly persons within the reach of 42 U.S.C. § 1983, and subject matter jurisdiction accordingly exists under 28 U.S.C. § 1343. Moreover, since these individual defendants were sued in their official capacities as members or agents and servants of the Board, Rule 25(d)(1) of the Federal Rules of Civil Procedure applies, the pertinent portion of which reads as follows: “When a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. * * * 79 Consequently, the relief which plaintiffs seek is enforceable against the present members and secretary-business manager of the Board of School Directors and the present superintendent of schools for the City of Milwaukee, and the Court will order that further proceedings in this case be conducted in their names. Although the Board will be dismissed from this action, there are references to the “board” throughout this decision. The term is used with the understanding that it serves as a convenient expression for the official actions of the individual defendant Board members. II. FINDINGS OF FACT A. General Background 1. Introduction to the Findings of Fact This action was brought on for trial to the Court on September 10, 1973. The trial consumed thirty full days of the court’s calendar before its conclusion on January 31, 1974, during which time the Court heard the testimony of approximately fifty witnesses and considered the hundreds of exhibits introduced into evidence by the parties. At the conclusion of the trial, the defendants were ordered to prepare findings of fact based upon the evidence adduced at the trial, said findings to be thereafter commented upon by the plaintiffs. The defendants filed their findings of fact with the court on October 29, 1974, and plaintiffs responded thereto in materials filed on December 13, 1974. The court also received posttrial briefs from both sides as well as an amicus curiae brief from the Wisconsin Education Association Council. On the basis of the entire record, including all of the aforesaid, and being fully advised in the premises, the Court does herewith make the following findings of fact. 2. Definitions and Symbols In order to achieve some degree of brevity in these findings of fact, it will be necessary to arbitrarily define certain terms and symbols. Unless indicated to the contrary in the text, the meanings here assigned are the meanings to be ascribed to the words and symbols herein used. Additional abbreviations or means of reference to terms may also be used in specific sections; disclosure of such reference will be by parenthetical indication following the term to which reference is made. “Administration ” refers to the non-elective, employed administrative personnel of the system, including school principals. “B” used in conjunction with a percentage indicates that the percentage refers to the black or nonwhite portion of the whole to which reference is made. “W” is the converse. If the percentage appears without letter notation, it refers to the black or nonwhite racial percentage. “Black” refers to persons of the negroid race, but on occasion may be utilized interchangeably with the term “nonwhite,” reflecting the fact that blacks are the predominant minority racial group in the city. “Black Central City” refers to that portion of the central city, generally to the north or northwest of the downtown area, which is predominantly black in residential racial composition. “Board ” refers to the 15 elected members of the Milwaukee Board of School Directors which is the governing body of the system. “Central administration ” refers to administrative personnel who serve the entire system as opposed to a particular school within the system. “Central City” refers to the older central area of the city, including those residential areas on the near north side which are predominantly black and those on the near south side which are predominantly white. “City” refers to the City of Milwaukee whose boundaries are coterminous with the boundaries of the system. “Cluster” refers to the group of schools, including elementary schools and junior high schools, the students of which feed into a specific high school, as well as that high school. “Feeder school ” is a school from which students in the normal progression of their education would enter into a given named school. Both elementary and junior high schools are feeder schools to high schools. “Majority” used in conjunction with the words black, white, or nonwhite means that more than 50% of the category to which reference is made is of that race. “1972-73,” or any combination of two successive years during the period, refers to the school year commencing in the year first indicated and ending in the year last indicated. “Nonwhite” refers to the racial group for which some system statistics are available prior to 1963-64, and generally includes all persons and students in the city or in the system other than Caucasians. “Predominantly” used in conjunction with the words nonwhite, black, or white means that substantially more than a majority (usually 90%) of the category to which reference is made is of the race or group used in conjunction with the word “predominantly.” If the reference is followed by a parenthetical percentage disclosure, the percentage figure is the approximate overall proportion of the predominant group. “Racially balanced schools ” are schools which during a given time period had the same percentage of nonwhite students, teachers, and administrators as the system as a whole had during the same time period. “Racially imbalanced schools ” are schools that are not racially balanced. “School administration ” refers to the administrative personnel serving a particular school or schools. “ Substantially racially balanced schools” are schools whose students are not more than 70% nonwhite or black and not more than 90% white. “Substantially racially imbalanced schools ” refers to schools whose pupil population is 70% or more black or nonwhite, or schools that are less than 10% black or nonwhite. “System ” refers to the Milwaukee school system as provided for under Chapter 119, Wisconsin Statutes, and its predecessor statutes. “The period” refers to the time period between 1950 and the date of trial, to which the majority of evidence and material adduced at trial pertains. “ White ” refers to the category of persons who are not nonwhite. “White Central City” refers to that portion of the central city which is predominantly white in residential racial composition. 3. System Government The Milwaukee school system, whose boundaries are coterminous with those of the City of Milwaukee, is governed by a 15 member Board of School Directors elected at large on a nonpartisan basis to staggered six-year terms. 4. System Growth The Milwaukee school system is one of the fifteen largest public school systems in the United States and consisted of 164 schools as of the school year 1973-74. In terms of pupil enrollment and the number of schools in the system, it has undergone a period of rapid growth in the past twenty-five years. Between the school years 1950-51 and 1973-74, the total number of schools in the system increased by 71%. Sixty-five per cent of this growth occurred during the decade 1950-60, and 81% of this growth took place during the period 1950 — 65. In 1950-51, there were 79 elementary schools, 4 junior high schools, and 12 high schools (exclusive of special schools) in the system. By 1960-61, the system had grown to 115 elementary schools, 12 junior high schools, and 12 high schools. In 1973-74, there were 121 elementary schools, 19 junior high schools, and 15 high schools in the system. In 1950, the system enrollment was approximately 67,000 pupils. By 1964, enrollments had increased by about 80% to over 120,000 pupils. During the decade 1950-60, the system and city area nearly doubled from 49 to about 92 square miles. School enrollment leveled off at 128,000 pupils in October 1972 (when the system’s area was 96.5 square miles) and declined thereafter. 5. Black Population Growth The city’s black population quintupled between 1950 and 1970. In 1950, there were 21,772 black residents approximately 3V2% of the city’s population. During the decade 1950-60, the city’s black population tripled to 62,458 (8V2% of the city’s population), the highest sustained rate of growth of any large city in the country. By 1970 the city had approximately 105,088 black residents (about 141/2% of the population), an increase of 68% over 1960. The rise in the city’s black population between 1950 and 1970, which amounted to a percentage increase in excess of 500%, was largely caused by migration from the South, particularly the central southern states of Tennessee, Arkansas, Alabama, and Mississippi. However, a relatively high birth rate among black residents was also a contributing factor. During the period 1950 to the present, the number and percentage of black pupils in the system rose at a faster rate than the total black population. For example, the number of black (or nonwhite) pupils in the system increased from about 24,000 (19.8%) in 1964 to about 28,000 (22.2%) in 1966. Black pupils presently comprise about 35% of the system’s pupil population, more than double the proportion of black residents in the city. 6. Black Residential Patterns The overwhelming majority of the city’s black population has tended to reside in a relatively small contiguous area in the north central and northwestern central area of the city. As of 1940, about 78% of the 8,821 black residents resided in an area bounded by West Juneau Avenue, North 12th Street, West Brown Street, and North Third Street. The remaining black population resided in contiguous areas with a very small portion residing in enclaves located elsewhere in the city. By 1950, the residential area occupied by the majority of the city’s 22,129 black residents had expanded substantially. The bulk of the black residents were concentrated in an area bounded by Juneau Avenue, Third Street, Wright Avenue, and Seventh Street. As of 1960, 90% of the city’s 62,458 black residents (about 95% of the total nonwhite population of the city) resided "in an area bounded by Keefe Avenue on the north, 20th Street on the west, Juneau Avenue on the south, and Holton Street and the Milwaukee River on the east, with lesser concentrations of black residents in the fringes of this area and with a few residing in several outlying areas. In this area of heaviest nonwhite residential Concentration, 62% of the residents were nonwhite. As of 1970, almost all of the city’s nearly 105,000 black citizens resided in an area generally bounded by Capitol and Congress on the north, 35th Street on the west, Holton and the Milwaukee River on the east (with the area north of Locust and east of Holton still having a relatively large white population), and Juneau on the south, continuing the pattern of expansion to the north and northwest. About 90% of the city’s black population resided in this area which was 65-75% black overall, ranging from about 40% on the periphery to 75-80% and more near the center. The particular areas in the city to which black citizens have moved have been determined primarily by the areas in which residential vacancies have occurred in combination with the particular needs, desires, and incomes of the black citizens. Important factors which have determined the nature and direction of black residential expansion have been the location of some physical barriers (e. g., industrial and commercial development along the southern boundary of the north-central city), the housing characteristics of the surrounding areas, and the relative age of the white population occupying this housing. Black citizens, as had been common with other ethnic minorities, have tended to seek housing near areas already heavily populated by black citizens. Income levels have been very important in determining where black citizens have lived. For example, the area south of Center Street is basically a low income area; the area north of Center Street to Capitol Drive is a somewhat higher income area; and the area north of Capitol Drive is a middle class area. The middle income black citizens are generally older and live in more expensive, owner-occupied, single family dwellings to the north and northwest. Black citizens with lower incomes tend to be younger and tend to move toward the west into multiple family dwelling units, with the more expensive older housing to the west serving as an economic buffer to further expansion. 7. The Neighborhood School Policy The Board has consistently and uniformly adhered to a “neighborhood school policy,” first developed in 1919. The essence of that policy has been the assignment of students to schools within reasonable geographic distances of the students’ residences. The policy has controlled the allocation of students among the schools in the system for attendance purposes, except as to students who have voluntarily transferred from their neighborhood schools pursuant to the Board’s free transfer and open transfer policies (described more fully, infra) and except for certain special educational programs. In general, senior high school, junior high school, and elementary school attendance zone radii have been approximately 1 mile, % mile, and V2 mile, respectively, with consideration given to such factors as difficulties in site acquisition, land availability, problems in land use, availability of funds, residential development, natural or city boundaries, relative rates of pupil population growth in neighborhoods, and safety. There have been exceptions where practicalities have dictated a departure from normal distance standards. The Board has pursued its neighborhood school policy with the conviction that it is consistent with and best promotes its policy of providing the children enrolled in the system with the best possible education limited resources will permit. The Board believes that this policy is convenient for pupils and their families, maximizes parental involvement in and support for the neighborhood school, involves the school in the community, fosters the utilization of school programs geared to the particular needs of pupils residing in the neighborhoods of the schools, and minimizes departmentalization of the student’s life between school, family, and neighborhood. This central policy has been supported through the years by most Board members and has been of decisive importance in a host of decisions concerning how and where students were and will be educated, including decisions with respect to new school site selection and construction, school remodeling, school building additions, and actions taken to meet the increased crowding in the schools during the 1950’s and early 1960’s. B. System Growth and Overcrowding During the period stretching from 1950 through 1968-69, and to a lesser extent in recent years, there were great increases in the number of students enrolled in the system in both the developing residential areas on the periphery of the city and in the older residential areas into which black families were moving. In 1950, the school census showed 119,-368 children (with a total enrollment of 69,131), and by 1959 the school census was 175,486. By 1964, the total enrollment in the system’s schools was 120,343, an increase of about 80% over 1950, and by 1968 it was 130,736. From 1950 to 1965, the system’s area doubled (47.95 to 95.78 sq. miles), and the City’s population went from 637,392 to an estimated 761,-000. The 1950 census indicated that children aged 0-19 accounted for 28.8% of the city’s population, while in 1960 it was 35.8%. In 1968, the estimated school census of children aged 4-19 was 210,125 (25.92% of the total population). This rise in the system’s enrollment was caused by new development in some areas, by increased population density in developed areas, by a reduction in the number of children attending nonpublic schools, and by a younger population. During this period the total number of buildings went from 99 to 143, and the total school staff increased from 24,045 to 39,030. The system’s total school budget rose from $18,641,190 in 1950 to $68,331,930 in 1964. There was an uneven spread of school housing needs within the system because of variant residential concentrations. Large numbers of relatively young families locating in newly developing areas created an almost instantaneous demand for schools. In older areas, where single family homes and duplexes had been converted into multiple family dwellings occupied by younger couples with children, an added load was placed on existing school facilities. During the late 1940’s, the Administration began planning an extensive school construction program in order to meet the post-war baby boom. However, the student population boom in the residential areas that were occupied by black residents was not expected or even understood when it initially began developing. During the 1950’s and 1960’s, as the percentage of blacks residing in a given residential area increased, the schools whose districts encompassed those areas became increasingly overcrowded. The school overcrowding occurred because (a) age patterns characterizing the black population in the city were much younger than those characterizing the white population which had previously resided in the residential neighborhoods that the blacks were moving into, and (b) schools in these areas had a smaller teacher-pupil ratio and class size (about three less pupils), thereby reducing these schools student capacities. The differential age pattern was primarily the result of the fact that blacks migrating into the city were relatively young and had a higher fertility rate. There was also a use of what had been single family houses by multiple families, as there was an acute need for additional housing in the black Central City. During the period, the school districts serving the predominantly black residential areas were overcrowded by Board-Administration standards in the sense that more pupils resided therein than the neighborhood school facilities could handle. Between 1950 and 1960, school enrollments increased 43.5%. The density of children in this area was five times that of other areas in the city. In terms of the number of elementary pupils per square mile, the peripheral area of the city went from 495 to 587 between 1950 and 1960, while the black Central City went from 1,925 to 2,764. High family mobility and substantial in-migration of families from year to year caused large enrollment fluctuations that made planning difficult. Without classroom additions, and sometimes even with them, schools in this area became overcrowded, and their district boundaries were reduced in size. During this period the basic policies and practices concerning overcrowding were as follows: If an increase in enrollment was causing or was expected to cause overcrowding of a particular school, a determination was made as to whether the overcrowding portended to be short or long term. If deemed temporary, the first attempt was to find additional space in the overcrowded school that could be utilized for classroom purposes, such as below grade classrooms, auditoriums, and gyms. This was deemed educationally desirable, as there would be no sending of pupils outside the neighborhood school, it could be accomplished relatively quickly, and it was relatively inexpensive. The next preference would be to find nearby adjacent schools that had vacant classrooms that could handle the pupil overload by means of logical redistricting convenient to the pupils, grade reorganization (e. g., reassignment of grades 7 and/or 8) and/or bussing. The utilization of grade reorganization fit in with the system’s policy, initiated in the 1920’s, of switching from a K-8 (grades kindergarten through 8) setup to K-6 elementary schools and junior high schools containing grades 7-9. By the early 1950’s, the system was approximately half way through this transition. However, grade reorganization was frequently not possible because of a lack of the special facilities needed for the shop and home economics programs required for 7th and 8th grade students. Thus, primary reliance was placed on boundary changes. The least favored alternative was to transport pupils to the nearest classrooms available in other schools. If the overcrowding was deemed long term, the first consideration would be whether an addition could be made to the existing building or whether existing but unutilized facilities could be brought into service through devices such as renting private school buildings. If additions were not practicable or desirable under the neighborhood school policy, a site for a new school would be selected in a geographic location serving a residential area having sufficient longterm student population to justify a school building. Bussing was kept to a minimum whenever practicable because of factors such as cost and parental opposition. Among the potential alternatives not utilized was increasing the number of students in each class or utilizing half-day shifts. C. Boundary Changes Boundary changes and grade reorganizations were primarily made to meet (a) increasing and/or shifting student populations, or (b) changing school capacities such as those caused by completion of new buildings or additions. The boundary changes transferred pupils from an overcrowded school to adjacent schools having available space. Population shifts were flexibly responded to by the adjustment of school district boundaries so as to avoid, insofar as possible, the overcrowding or underutilization of buildings. The basic policy with regard to districting was adherence so far as practicable to the Board’s neighborhood school policy after considering the area served, the pupils to be enrolled, and the available school facilities. The procedure utilized by the Administration in determining its recommendations to the Board was as follows: After a school was identified as overcrowded, an attempt was made to provide relief via adjacent schools having available space capable of handling the needed educational program. The first step was to ascertain with respect to both the overcrowded school and the adjacent schools how many students lived in the district and in each block therein. After the number of available vacant classrooms in nearby adjacent schools was determined, the decision as to the type and nature of relief provided was made. If a boundary change was determined to be appropriate, blocks adjacent to the receiving school district containing sufficient numbers of pupils to fill the number of vacant classrooms were moved into the receiving schools’ district. Boundary changes were useful when the districts adjacent to the overcrowded school were not overcrowded. Where that situation did not exist, it would have been necessary to utilize a series of “domino” type boundary changes in order to alleviate overcrowding via boundary changes. The Administration never recommended and the Board never made any “accordion” or “domino” type boundary changes whereby a series of boundary changes in three or more contiguous districts were made so as to relieve the overcrowding at one school by ultimately placing more pupils in the most distant school in the series. This was rejected because it was incompatible with the neighborhood school policy and would ultimately compel children to attend schools far from their homes. Such boundary changes could have led to a series of schools being located on the perimeter or even outside the district served. Another factor was parental opposition to such a policy. With respect to boundary changes affecting all schools in the system during 1962-63 through 1966-67, as well as boundary changes affecting Central City elementary schools during 1943 through 1963, no direct relationship was established between the student body racial percentages of the receiving and/or losing schools, as these percentages varied markedly. Many of the aforesaid boundary changes were between schools with very low percentages of nonwhite pupils. Many involved changes between school districts where there was not a substantial difference in the pupil racial percentages. Where there was a substantial nonwhite percentage, there was no patterned relationship between the losing and receiving school percentages. Where substantial differences in losing and receiving school percentages existed, some involved the transfer of blacks from schools with larger percentages to schools with smaller percentages and from smaller to larger. The absence of a direct statistical relationship with respect to the racial percentages of schools involved in boundary changes does not support a finding that boundary changes and/or grade reorganizations were devoid of impact upon racial imbalance in the system. The Board asserts that any racial effects attributable to boundary changes involving schools located in the Central City and adjoining areas were temporary in nature, the short-term impact of such changes being quickly eclipsed by the rapid expansion of black residential populations in these areas over a relatively short period of time. The fact remains, however, that these boundary changes nevertheless affected the timing of student racial change. In addition, the “compression” effects of boundary changes deserves mention. As black populations, moved into neighborhoods previously inhabited by whites, the pupil population of the neighborhood school district would increase. This phenomenon of racial differentials in the proportion of school-age children per geographical area resulted in the overcrowding of school facilities within the pre-existing boundary lines. The Board’s consistent response to this situation was the restriction or “compression” of boundary lines, often accompanied by an expansion of facility capacity through such techniques as the building of additions and the utilization of substandard classrooms. This pattern of boundary compression and facility expansion had the inevitable effect of confining and containing the disproportionately large growth in black pupil population within the borders of the newly black neighborhoods. By compressing boundaries and expanding facilities, the Board kept black pupil population from “spreading” to the rest of the city and correspondingly increased the concentration of black pupils in Central City schools and the degree of racial imbalance in the system as a whole. This compression phenomenon is illustrated by the experience of Washington High School. During the period, Washington was fed by Peckham and Steuben Junior High Schools. Peckham in turn was predominantly fed by Clarke, Auer, and other elementary schools located west of 27th Street. There were few blacks in the cluster’s schools. During the mid-1960’s, white residents moved out of the area around 27th Street and black residents moved in. During 1970, the Board redistricted the Washington High School (12.3%B, 1969-70) cluster feeder pattern, allocating a western portion populated almost exclusively by white residents (herein referred to as “the panhandle”) to the Marshall High School district (2.03%B). The cluster’s grade structure was also reorganized by having all 9th graders in the district attend Washington High School rather than the junior high schools. The feeder pattern boundary change was ostensibly accomplished in order to alleviate overcrowding at Washington High School. Among the reasons given for choosing the “panhandle” area (which consisted of the 81st and 95th Street Elementary Schools) was that it was the closest area in the Washington district to Marshall High School. Although the racial consequences of this redistricting were foreseeable by the Administration and Board members, they assert that strong educational reasons supported the actions taken. Regular school organization was cited, as the 81st and 95th Street Elementary Schools were the only elementary schools feeding into Wilbur Wright Junior High School whose students did not also go on to Marshall. Board policy has been that all elementary schools feeding into a given junior high school should, in the interests of peer relationship and educational program continuity, feed into the same high school. The Board also noted a “long standing” community belief that 95th Street Elementary School would feed into Marshall when the latter was built. In the fall of 1970, following redistricting, there were approximately 2,000 white and 500 black pupils at Washington High School (20%B). By the fall of 1972, white enrollment had dropped to 1,400, and black enrollment was up to about 950 (38%B). D. Facilities 1. School Construction, Building Additions, and Modernization Historically, the neighborhood school policy, together with the pattern and timing of residential development in various areas of the system, has been determinative of when and where new schools were constructed; i. e., school building construction has been tied to the historical pattern of residential growth within the system. Hence, the older school buildings in the system are in the older Central City area. Conversely, most new schools have been located in the developing residential areas on the outer periphery of the city. In these areas, whose annexation in the years between 1950 and 1969 nearly doubled the city’s area, the neighborhood school policy dictated that new schools be created so that children in these areas could attend schools of appropriate sizes and within reasonable walking distances. While the newly annexed areas of the city were receiving new schools and new school districts to handle their rising student populations, the Central City was faced with problems which, although similar, were presented in a different context. There, school facilities within reasonable walking distances of the students’ residences existed in each school district. The problem of providing adequate space and structures to handle the rapidly increasing pupil population density in the districts arose in the context of higher land and construction costs and reduced site availability. Inadequate older structures which could not be economically and satisfactorily remodeled were replaced if the need for a school was projected to continue, or were abandoned if no longer needed. Schools which were structurally sound and could be economically remodeled were modernized. The primary goal of the remodeling/modernization program, approved early in 1958 by the Board, was to bring structurally sound older schools which were still needed in their neighborhoods up to standards deemed presently current and appropriate in terms of changing program needs and changing lighting, acoustic, and furniture standards. Modernization costs were considerably less than costs for new construction but provided efficient and economical building use for a comparable number of years. Further, time was an important factor, and modernization could be accomplished more quickly than new construction. Building additions, rather than replacement schools or additional new schools, were constructed in accordance with existing and projected long term and temporary space and student needs, considering such factors as the amount of playground space which would be consumed by an addition at the existing school site, the resulting size of the school after the addition, the kinds of programs which could be offered at the school, and the educational effects upon the students. The construction of an addition sometimes involved a concomitant temporary boundary change to handle overcrowding, and additions often contained a little extra capacity to meet expected needs with respect to surrounding districts. The construction program engaged in during this period was financed pursuant to school bond issues and the construction fund tax levy, with the bulk of the funds coming from the former