Full opinion text
CURTIN, Chief Judge. INTRODUCTION This court’s decision in this case comes after a long and arduous journey through a complex lawsuit, in which the plaintiffs charge the defendants with “creating, maintaining, permitting, condoning and perpetuating racially segregated public schools in the City of Buffalo and in the Buffalo Metropolitan area.” (Complaint, at 1). Plaintiffs allege a cause of action under 42 U.S.C. § 1981 et seq. and the fourteenth amendment to the United States Constitution. They seek declaratory and injunctive relief under 28 U.S.C. § 2201 and claim jurisdiction in this court under 28 U.S.C. § 1343. It hardly needs to be pointed out that the Constitution and the laws do not forbid all types of discrimination. The fourteenth amendment prohibits only discrimination carried out under color of law; private discrimination, however regrettable or reprehensible, is not actionable under it. Civil Rights Cases, 109 U.S. 3, 11 [3 S.Ct. 18, 21, 27 L.Ed. 835, 839] (1883); Shelley v. Kraemer, 334 U.S. 1, 13 [68 S.Ct. 836, 92 L.Ed. 1161, 1180] (1948). This state action requirement presents no obstacle to the plaintiffs’ case, since there is no question but that all the defendants are state agencies within the ambit of the fourteenth amendment’s protection. See United States v. Texas Education Agency, 467 F.2d 848, 863 (5th Cir. 1972) (en banc); Oliver v. Kalamazoo Board of Education, 368 F.Supp. 143, 157-58 (W.D.Mich.), aff’d 508 F.2d 178 (6th Cir. 1974), cert. denied, 421 U.S. 963 [95 S.Ct. 1950, 44 L.Ed.2d 449] (1975). At this point in the lawsuit, the only question before the court is whether or not any or all of the defendants have acted in such a manner as to segregate the Buffalo Public School System [hereinafter BPSS]. The question of remedy, i. e., what action the court should take if it should find that the BPSS is segregated, is not before the court. It should be emphasized that this court sits only as an arbiter of a legal dispute, not as a super-school board. It is this court’s duty to safeguard the fourteenth amendment’s guarantee of equal protection under the laws for all residents of the United States. The late Judge Mur-rah’s words aptly describe the court’s function in this lawsuit: We yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication. Stapleton v. Mitchell, 60 F.Supp. 51, 55 (D.Kan.1945), appeal dismissed, 326 U.S. 690 [66 S.Ct. 172, 90 L.Ed. 406] (1945). At the outset, the court gratefully acknowledges the consistently professional cooperation exhibited by all parties to this lawsuit. One of the beneficial consequences of this cooperation was a series of 161 stipulations upon which all parties agreed before the trial in this action commenced. This, of course, considerably reduced the burden on this court once the trial actually began. The complexity and scope of the issues before the court must not be understated, however. The question presented — whether or not the defendants intentionally committed segregative acts affecting the Buffalo public schools — is one that calls forth the strongest of emotions. The final written record of this case gives some testimony to its complexity and to the fervor with which it was contested. Pretrial motions and discovery procedures consumed many months; the actual trial lasted ten days, with a transcript running 1,695 pages; parties submitted many pre-trial and post-trial briefs; some 180 exhibits were admitted into evidence; and post-trial oral arguments were scheduled to facilitate a clear understanding of the positions and legal arguments of all parties. It is, of course, the duty of this court to decide the facts from the evidence placed before it. Correlatively, it is the duty of this court to apply the law as it exists, both in the decisions of the Supreme Court and those of the Second Circuit in which this court sits. After carefully sifting through all the testimony, evidence, and argument, the court is now prepared to apply the applicable law to the facts as it finds them. I. THE PARTIES AND THEIR POSITIONS This suit was instituted as a class action, with the named individual plaintiffs, black and white parents of public school children in the Buffalo metropolitan area, attempting to represent all others similarly situated. Although a class action is appropriate under Federal Rule of Civil Procedure 23(b)(2), the court believes that since little evidence was presented at trial regarding non-BPSS policies and practices, the certified class should be restricted to parents of children attending Buffalo public schools. Also plaintiffs are the Citizens Council for Human Relations, Inc., a non-profit corporation organized under the laws of the State of New York, and the National Association for the Advancement of Colored People, Buffalo branch, organizations which seek, among other things, equal opportunity in education. The defendants are Ewald Nyquist, the Commissioner of Education in New York State, The Board of Regents of the State of New York and its individual members [State defendants], Joseph Manch, Superintendent of Schools of the City of Buffalo at the time this suit was brought, and Eugene Reville, the present Superintendent, the Board of Education of the City of Buffalo and its members, the Common Council of the City of Buffalo and its members, and Stanley M. Makowski, Mayor of the City of Buffalo [City defendants]. Originally, the plaintiffs did not name the individual members of the Board of Education or the Board of Regents. By order of this court dated today, the plaintiffs’ motion to amend their complaint to include the individual members of these two Boards as parties defendant was granted. The plaintiffs allege that the defendants, by various actions and inactions, have caused the BPSS to become or remain severely segregated. Among the major allegations are segregation of staff, siting and construction of schools so as to promote segregation, manipulation of school district lines, optional zones and transfers for segre-gative reasons, failure to implement any meaningful integration plan, failure to hire significant numbers of minority group teachers, failure to promote significant numbers of minority individuals to supervisory positions, and failure to fund the proposed new East Side High School. Numerous other actions and inactions are alleged, including segregation of residential areas, and student assignment which incorporated this segregation. As a result of these actions of the defendants, plaintiffs claim that they have been denied the equal protection of the laws guaranteed to all citizens by the fourteenth amendment. The City defendants, while acknowledging that many of the schools are racially imbalanced, insist that any imbalances are due to demographic shifts in housing patterns that are beyond their control. In addition, they contend that no affirmative action is required of them by the Constitution to alleviate the imbalances so caused. In adhering to their long-standing neighborhood school policy, which they argue is and has been racially neutral, the City defendants deny that they have violated the plaintiffs’ constitutional rights. The State defendants likewise admit that widespread segregation exists in the BPSS, but insist that they have done more than is constitutionally required of them to end it. They also disclaim any responsibility for, or power to end, the segregated residential patterns in the City of Buffalo. II. THE LAW In 1954 the Supreme Court of the United States issued its famous decision in Brown v. Board of Education, 347 U.S. 483 [74 S.Ct. 686, 98 L.Ed. 873] (1954), which declared that laws requiring separate school facilities for blacks and whites — the separate but equal school doctrine — were unconstitutional. The Court ruled in that decision that such a system was “inherently unequal”, and that such school segregation was a violation of the fourteenth amendment’s guarantee of equal protection of the laws. 347 U.S., at 495 [74 S.Ct. at 692, 98 L.Ed. at 881]. Although separate school facilities mandated by statute have long been outlawed in New York State, this did not effectively prevent the slow emergence of separate educational facilities, as shown in tables 3 to 7, infra. The law to be applied in this case has evolved through a series of Supreme Court and circuit court cases since Brown dealing with school segregation in many cities of our country, both North and South. The essential elements, found in Keyes v. School District No. 1, 413 U.S. 189 [93 S.Ct. 2686, 37 L.Ed.2d 548] (1973), a case which involved the Denver public schools, can be reduced to a series of questions: (1) Have plaintiffs shown that any of the Buffalo public schools are segregated? (2) If the answer to the first question is yes, have plaintiffs shown that any of this segregation was brought about or maintained by purposeful or intentional segregative acts by the defendants? (3) If question number 2 is answered affirmatively, have plaintiffs shown that a meaningful or substantial portion of the school district was so segregated? All parties agree that the Buffalo public schools exhibit severe racial imbalance (City Defendants’ Answer, at 2; State Defendants’ Answer, at 2), and that “[i]n recent years, the degree of racial isolation in the Buffalo public schools has been increasing.” (S—11). The defendants deny, however, that the segregated condition of the BPSS was intentionally or purposefully caused by them. In other words, the defendants argue that the schools are de facto segregated, not de jure segregated.,] As the Supreme Court has explained in Keyes, “the differentiating factor between de jure segregation and so-called de facto segregation . is purpose or intent to segregate.” Keyes, supra, 413 U.S. at 208 [93 S.Ct. at 2697, 37 L.Ed.2d at 563] (emphasis in original). In deciding the question of intent, the court is not required to find guilt or innocence, prejudice or evenhandedness, or even “badness” or “goodness” on the part of the defendants. To prove their case, plaintiffs are not required to show that racist motives prompted the defendants, nor even that defendants wanted the schools to be segregated, although proof of either of these would be sufficient to show the required intent. It is enough, as the Second Circuit explained in Hart v. Community School Board, 383 F.Supp. 699 (E.D.N.Y.1974), aff’d 512 F.2d 37 (2d Cir. 1975), to show that the probable and foreseeable result of the defendants’ acts was segregation. In Hart, the district court found that the school board had unconstitutionally segregated a school despite the court’s specific finding that the school board was not racially motivated. The board appealed this decision. The Second Circuit stated: Unless the Supreme Court speaks to the contrary, we believe that a finding of de jure segregation may be based on actions taken, coupled with omissions made, by governmental authorities which have the natural and foreseeable consequence of causing educational segregation. Hart, supra, 512 F.2d at 50. Furthermore, it is not necessary that the plaintiffs prove that the defendants’ every action was discriminatory or that no positive action was ever taken by the defendants to promote integration. We are not dealing with absolutes. Isolated actions of constitutionally insignificant effect, whether of a discriminatory nature or sueh as to avoid or alleviate segregation, are not determinative. If fourteenth amendment rights are being denied, plaintiffs are entitled to relief. United States v. Texas Education Agency, supra, 467 F.2d at 873. In this regard, we note the words of the Sixth Circuit in Oliver v. Michigan State Board of Education, 508 F.2d 178 (6th Cir. 1974), cert. denied, 421 U.S. 963 [95 S.Ct. 1950, 44 L.Ed.2d 449] (1975): When constitutional rights are involved, the issue is seldom whether public officials have acted with evil motives or whether they have consciously plotted with bigotry in their hearts to deprive citizens of the equal protection of the laws. Rather, under the test for de jure segregation, the question is whether a purposeful pattern of segregation has manifested itself over time, despite the fact that individual official actions, considered alone, may not have been taken for segregative purposes and may not have been in themselves constitutionally invalid. . . . Benevolence of motive does not excuse segregative acts. 508 F.2d at 182—83 (citations omitted). Some of the actions and events considered in this lawsuit occurred before many, or in some cases any, of the present public school children first attended school. The passage of time alone does not wipe the evidentiary slate clean, however. The Supreme Court has stated: . . . We reject any suggestion that remoteness in time has any relevance to the issue of intent. If the actions of school authorities were to any degree motivated by segregative intent and the segregation resulting from those actions continues to exist, the fact of remoteness in time certainly does not make those actions any less “intentional.” Keyes, supra, 413 U.S. at 210-11 [93 S.Ct. at 2698, 37 L.Ed.2d at 564]. If the plaintiffs prove that some schools were intentionally segregated by the defendants, the court must then decide whether the plaintiffs have shown that a substantial portion of the school district was so segregated. If the plaintiffs have proved that the defendants intentionally segregated a substantial part of the school district, this “creates a presumption that other segregated schooling within the system is not adventitious. It establishes, in other words, a prima facie case of unlawful segregative design on the part of school authorities.” Keyes, supra, 413 U.S. at 208 [93 S.Ct. at 2697, 37 L.Ed.2d at 563]. It is then incumbent on the defendants to prove that the other segregated schools are not the consequence of their illegal segregative actions as well. The burden so imposed on the defendants is considerable. Mere reliance on an “allegedly logical, racially neutral” course of action is insufficient. The Supreme Court has explicitly enunciated the standard: [The defendants’] burden is to adduce proof sufficient to support a finding that segregative intent was not among the factors that motivated their actions. Keyes, supra, 413 U.S. at 210 [93 S.Ct. at 2698, 37 L.Ed.2d at 564]. (Emphasis added). III. BUFFALO AND ITS PUBLIC SCHOOLS Buffalo’s growth pattern has been similar to many other large cities of the northeast. Although the physical boundaries of the City of Buffalo have not changed significantly since the middle of the 19th century (PX 260, Pt. II, at 1), the population did not stop growing until a century later in 1950. In the quarter century since, the City has exhibited a steady population decline, due in large part to the familiar suburban migration. Many immigrants were attracted to Buffalo in the late 1800’s, and the City retains strong ethnic concentrations to this day. The black population of Buffalo, negligible around the turn of the century, has grown steadily since World War I, receiving a strong impetus from the economic growth occasioned by the war industries during the 1940’s. As is typical of northern cities, the older central city has long been the locus of the black population, with movement slowly taking place to other areas of the city over the last two decades. Although some diffusion of black families throughout the 43 square miles of Buffalo has occurred, the number of blacks in suburban areas has been, and is, negligible. The segregated nature of Buffalo’s suburbs is glaringly evident when area public school districts are compared. The New York State Commission on the Quality, Cost and Financing of Elementary and Secondary Education reported in 1972 that [Buffalo’s] surrounding suburbs are severely segregated. Of the 30 Erie County school districts, only six have over 1 per cent nonwhite students. Of these six, the only two districts with significant nonwhite student populations are Buffalo (46.6 per cent) and Lackawanna (19.2 per cent). Akron, with a sizeable Indian population, has the third highest nonwhite population, representing 16 per cent of The total. (PX 305, at 4.44). (Footnotes omitted). As the City’s population has dropped, the minority percentage has correspondingly increased, as shown in the following table. At the same time, the BPSS has recorded a similar drop in its pupil population, with an even more striking percentage increase in non-white members, as the following table shows, The difference in years 1970 and 1973 is illustrative of this phenomenon — i. e., the population, in absolute numbers, of minority public school children decreased, yet the minority percentage increased. The population drop is naturally reflected in school attendance figures. During the years 1966 through 1973, only ten of Buffalo’s seventy-three elementary schools experienced an increase in enrollment. The rest noted declines ranging from negligible to severe. Total enrollment in those years dropped over 11,000, a percentage decline of approximately 23% from the January 1966 totals. Minority enrollment declined during that period by 525, while majority enrollment dropped by over 10,000 students. As of the 1973-1974 school year, the BPSS consisted of 77 elementary schools, 4 middle and 2 junior high schools, 7 academic and 6 vocational-technical high schools. The pupil population in October 1973 was 61,060, of whom 53.3% were white, and 46.7% were non-white. (S-10). The system has never been under mandate of law to operate a dual system along racial lines. In fact, New York State enacted an anti-segregation law for public schools in 1900. Nevertheless, there exists substantial racial imbalance in the public schools. In 1973, 55 out of 77 elementary schools, 5 out of 6 junior and middle schools, and 7 out of 13 high schools were from 80 to 100% majority or minority, as tables 3 through 7 demonstrate. Statistics such as these prompted Commissioner Nyquist to state in April 1972 that “segregation [in the BPSS] is more severe now than it was seven years ago.” [S — 18(b)]. The BPSS exhibits a complex combination of grade structures and feeder patterns. Elementary schools vary from prekindergarten or kindergarten through third, fourth, fifth, sixth, seventh, or eighth grades. Middle schools are fifth through eighth grades, junior high schools, seventh through ninth grades, and high schools ninth through twelfth grades. Depending on the grade structure of the individual elementary school, a child may remain in one grammar school for his complete elementary education, or progress to a second grammar school, a middle school, or a junior high school. For instance, Schools 16, 30 and 38 are all within a matter of blocks of each other on the city’s near west side. A child attending School 16, a K-6 school, will proceed to Woodlawn Junior High School and then Grover Cleveland High School, while a child starting out at School 30, another K-6 school, will transfer to School 56 for seventh and eighth grades and then go to Lafayette High School, while a third child at School 38 will remain at that school from kindergarten through eighth grade and then go to Grover Cleveland High School. (PX 296, at 26; Record, Vol. VIII, at 21-22). As a general rule, pupils do not have a choice of elementary schools. They must attend the school in the district in which they live. This is also true for the junior high schools, the middle schools and the academic high schools. However, it is not true for the vocational-technical high schools, which accept students from all over the city and have no district lines. IV. THE TRIAL For purposes of assessing the allegations of the plaintiffs, the court will analyze separately what it considers to be the major issues: East High School, the siting and districting of Woodlawn Junior High, the use of transfers, optional areas and redistricting of attendance zones, the vocational-technical high schools, staff segregation, the state integration mandate, and the housing segregation in Buffalo. IV-A. EAST HIGH SCHOOL There are seven academic high schools in the BPSS. Each of these schools has its own area from which it gets its students. The policy of the Board of Education has been, at least since 1956, that students living in a certain academic high school’s district must attend that high school. (S-42). Any deviation from the Board’s attendance policy requires authorization from the Office of Pupil Personnel Services, and “may only be granted for hardship, language, and voluntary integration.” (S-42). The enrollments at the academic high schools as of January 1966 and October 1973 are shown in Table 8 below. Although the outer boundaries of the BPSS have remained static for many years, the individual high school district lines that govern attendance zones have been altered many times. East High School is among those schools that have been redistricted. Plaintiffs charge that through redistricting and language transfers, the defendants have increased and maintained the racial segregation at East High School. In assessing the evidence, this court is cognizant that “[w]hat is or is not a segregated school will necessarily depend on the facts of each particular case.” Keyes, supra, 413 U.S. at 196 [93 S.Ct. at 2691, 37 L.Ed.2d at 556]. 1..REDISTRICTING The stipulations indicate the following facts with regard to the redistricting of East High School: 1. The Board in May 1954 adjusted the East district so that students residing in an optional area in the eastern sector of the district would thereafter not be given the option of attending East. The students in this optional area were “practically all white.” (S-151). 2. Another district adjustment by the Board at this time extended the East district further south. The result of this was that some black students were required to go to East instead of the predominantly white South Park High School. (S-152). 3. Three years later, in May of 1957, another redistricting for East was authorized by the Board. This changed an area then optional to Grover Cleveland, Bennett and Lafayette High Schools to East’s district. Most of the students in this formerly optional area are black. (S-153). 4.At that same Board meeting, graduates of School 43 were assigned to South Park High School. School 43 students were predominantly white and the school was just as close to East as to South Park. (S-154-156). The redistricting testimony at trial was not extensive, but it did flesh out the bare bones of the stipulations. S-151 and 154-156, paragraphs one and four, supra, deal with the same area, commonly referred to as the “Lovejoy” or “School 43” area. See Map 2, infra. As of 1950, this section was part of the East High district. In July of 1951, it was declared an optional district, providing students residing in that area the choice of attending either East High on the west, or Kensington High on the north. In 1954, as paragraph one explains, the Love-joy district was made a part of the Kens-ington High district. Three years later, in 1957, the students in the district were transferred to South Park High, as indicated in paragraph four, supra. Finally, in 1961, the Board reassigned this area to Kensington High. (Record, Vol. VII, at 103-105). The evidence indicates that this area has always been overwhelmingly white (PX 290; 291), and that it “is either closer to East High School — or at least equidistant to — than South Park.” (S-156). This redistricting of East High School, which resulted in the largely white Love joy neighborhood being excised from the East district, must be considered in conjunction with the language transfer policy in effect from 1960-1972. 2. LANGUAGE TRANSFERS The language transfer exception was designed to allow a student to take advantage of a particular language curriculum that his district school did not offer.' This special exception injects additional flexibility into an academic high school system already quite accommodating of students’ language pursuits, since Board policy is to offer language courses “in each high school if there are [sic] a sufficient number of students who express a bonafide interest in taking such language.” (S-46). Testimony at trial indicated that the minimum number of students required by the Board is fifteen. (Record, Vol. Ill, at 195-96). Certain languages, such as Spanish, French and Latin, are apparently taught at all the academic high schools. Polish, Italian, Hebrew and Russian, however, the so-called “special languages,” are restricted to selected high schools. (PX 264, at 545). A course in Polish was taught at East High School until about 1960, but, of the seven academic high schools, only East had none of these special language courses from approximately 1960 to 1972. (S-53, 54; PX 264, at 545; Record, Vol. IV, at 75). The evidence shows that sometime in the early 1950’s East High School was predominantly white. (Record, Vol. I, at 102). Although in 1970 the East High district had become approximately 60% black (PX 264, at 547), the court takes judicial notice of the well known fact, not disputed by the defendants, that the East High School district had long been, and still was in the 1950’s and 1960’s, populated by substantial numbers of persons of Polish extraction. Many Polish-Americans still live there. If there was any district in the Buffalo school system where a demand for Polish language classes existed, it was the East High School district and the Board of Education was well aware of this. It is not only a clearly foreseeable and' natural consequence that curtailment of the language classes at East would induce transfers to other high schools, it is obvious that this result would occur. The evidence produced at trial corroborated this. Plaintiffs proved that many East district students obtained language transfers to study one of these special languages at another public high school, usually South Park or Kensington Highs. All of these transfers had to be authorized by the Student Personnel Services Office. They caused annual headaches for that office, which was inundated with transfer requests prior to the start of each school year. As the following testimony of the head of the Student Personnel Services indicates, this situation was made known to the Superintendent of Schools. Q. Did you at anytime recommend to the Superintendent or to the Board of Education or to anyone that the languages that these students were asking to take be offered at East High School? A. Yes, I did. In fact, we constantly did .So constantly we brought to the Superintendent’s attention maybe these languages should all be put into East High School. Q. When would you recall that you first made that recommendation? A. Probably every year.. Probably every year. Q. Every year. Would that be every year from 1965 when you assumed your position? A. Probably. Probably, yes. (Record, Vol. Ill, at 201-202). The language transfers out of East were called to the Board’s and to the Superintendent’s attention by others also. At a Board meeting on May 26, 1971, Superintendent Manch was specifically informed that South Park High School alone had 143 out of district students, “generally from the East High School district,” studying Polish and Russian. (PX 60, at 88-89). * The possibility that language transfers were contributing to East’s predominantly black enrollment was raised as early as 1963 in a report by the Civil Rights Commission of the United States. (PX 10, at 18). Noting that East High at that time was predominantly black, though the East district was not, the report suggested that language transfers were possibly being used by white students to transfer out of East, i The report pointed out the curious result of a 1957 adjustment in the Riverside High-Bennett High boundary. The area assigned to Riverside, previously optional between Riverside and Bennett, contained a substantial Jewish population. Shortly after this change was made, the Board of Education became aware that significant numbers of the new Riverside High students were transferring back to Bennett to take Hebrew. To avoid this, the Board instituted Hebrew classes at Riverside High School. (PX 10, at 17-18). The Board could have instituted the same policy with regard to East and the Polish language classes to avoid the transfers out of East High. That they did not is an indication that they did not want to. The difficulty that the Board’s transfer policy caused only serves to highlight the Board’s attitude. When dealing with a system of seven academic high schools, it is inevitable that an action taken regarding one school’s attendance policies will have a reaction on other schools. The language transfers out of East High for Polish and Russian contributed substantially to severe overcrowding at South Park High, and the Board was aware of this. (PX 60, at 64-67; 88-89). A past president of the Board, Mr. Arnold Gardner, testified that from time to time this [language transfers] arose at the Board. I would say it arose and received brief attention on only a few occasions. It was one of those items with which we are all familiar. It was one of those items that people mention and drop because they are embarrassed by it and from time to time it would be proposed that Polish be offered at East High School and there would be a series of knowing smiles around the table and after a moment’s discussion, that would be abandoned. (Record, Vol. I, at 147). It cannot be disputed that East is now, and has been at least since 1960, an identifiably black school. The Board attempts to rebut the plaintiffs’ allegations that the Board, caused East to become predominantly black by showing that the residential tracts surrounding East have become progressively more black as the years have passed. While it is certainly true that the East district population has exhibited a substantial shift from predominantly white to predominantly black, nonetheless, even in 1973 the minority district percentage was only about 60%, while East High was 99% minority — and had been over 90% minority for at least eight years. ) See Table 8, supra. It is obvious to the court that more than mere demographics caused this drastic effect. In 1966 East was already the black academic high school, with a student body 91.4% minority. By comparison at that time, Bennett stood at 73% majority, Lafayette at 83% majority, Grover at 89% majority, and Kensington, Riverside and South Park High Schools all over 90% majority. Id. Almost three out of every five black academic high school students in 1966 attended East High. (PX 6, at 5). The Board admits that the language transfer policy contributed, in some degree, to East’s racial imbalance. Furthermore, the head of the Student Personnel Services admitted, both on redirect and recross examination, that he believed that in many cases the language transfers were used to avoid attending East High School. (Record, Yol. VIII, at 101, 105). He also testified that there was no procedure whereby the central school administration monitored the transferring students to check whether or not they actually attended the requested language courses. (Record, Vol. VIII, at 90-91). However, the Board denies that its language transfer policy was a substantial causative factor of East High’s imbalance. The first hard statistics on the racial effect of transfers were not available until 1966. The following table shows the numbers of transfers, including language transfers, granted at East since that year. The City defendants argue: [H]ow can such a racially imbalanced school, 90.1% black, in 1966, have been substantially affected by a policy that had no known racial impact on said school until some two years later? Post-trial Brief for City Defendants, at 22. The court finds this logic difficult to follow. Merely because cold raw data on the racial effect of transfers was unavailable prior to 1966 does not mean that this racial effect was not discernible prior to this date. The Board yras aware that language transfers could produce this effect, as shown by the Riverside-Bennett experience; it was warned that it was producing this effect in 1963; and it was obviously cognizant that East High’s district contained many Polish speaking families. East was the only high school that offered no foreign languages from 1960 to 1972. . A brief examination of Table 9, supra, indicates that the segregative effect of transfers out of East, including language transfers, was substantial during those years, and from all the evidence the court can infer that it was substantial prior to those years. In 1967, as Table 9 shows, 112 majority students attended East while almost as many, 109, transferred. In 1968, only 42 white students attended while 129 transferred. In 1969, 27 attended and 87 transferred; and in 1970, 24 attended while 176 transferred. Although Table 9, supra, does not indicate the percentage of transfers granted for language study, it was admitted that as of October 1972,197 white students from East High’s district were studying languages at South Park. (S-56). In addition to what these stark numbers show in terms of an annual effect, there is a certain cumulative impact to consider, since each student who transfers can remain at the transferee school for the duration of his high school career. That there were no definite statistics available prior to 1966 does not prohibit this court from concluding, in light of all the circumstantial evidence, that the language transfer device produced a substantial adverse racial impact on East High School before 1966. On July 6,1972 the Board ordered that a full range of foreign languages be offered at East High, and that no more language transfers out of East be permitted. (S-58). At trial, the Board of Education introduced evidence tending to show that in 1972-73, the first school year that language transfers were ended, most of the white students who should have attended East High School did not. Since these East district residents could not avoid East through the language transfer device, the Board suggests that other subterfuges, such as false addresses, were apparently devised to thwart the Board’s attendance policy. The essence of the Board’s defense is that nothing the Board of Education or the City could do would force white students to attend East High School. It is no excuse for the Board to say that whites shunned the school in 1972 after the Board had aided, abetted and helped to cause the attitudes that prompted this “white flight” from East High. Neither the Board of Education nor the City Council, nor even the Commissioner of Education can in candor deny that they had knowledge that East was becoming identifiably black throughout the late 1950’s and early 1960’s. The possibility that language transfer out of East was leading to East’s racial imbalance was raised as early as 1962, and this problem was repeatedly called to the attention of the Board and the Superintendent of Schools. For the Board to argue that when it ended the language transfers in 1972, no effect on the racial imbalance at East High School resulted, puts its good faith in question. The language transfers encouraged the concentration of minorities in one out of the seven academic high schools. Finally, the Board argues that the stipulations which the Board agreed to and the evidence regarding the redistricting of East are so lacking in detail that they are void of evidentiary value, and that any increase in the minority population at East at the time of the redistricting could only have served to integrate that school. Even assuming that the Board is correct on the redistricting evidence, the deletion of special languages from the East curriculum in 1960 and the subsequent language transfers effectively nullified whatever integration had been achieved. The racial impact of the language program was clearly foreseeable. In addition, and more important, the failure of the Board to amend this policy when it was obviously aware of its segregative impact is indicative that the Board intended that that segregative effect continue. IV — B. WOODLAWN JUNIOR HIGH SCHOOL The siting and districting of Woodlawn Junior High School, hotly debated issues for nearly two decades, are alleged by plaintiffs as clear examples of purposeful racial segregation. The City defendants argue that economic and demographic considerations required the North Masten District site on Woodlawn Avenue, and that the racial makeup of the school was the inevitable result of residential .patterns beyond their control. It is uncontested that the school has been nearly all black throughout its twelve-year existence. [S-24(b)]. The Masten District experienced a great influx of population during the 1950’s, due in substantial part to the Ellicott District Redevelopment which resulted in the relocation of many black families in the Masten District. As a consequence, severe overcrowding of the public elementary schools in that area of the city occurred. (PX 34,. at 28-29; PX 124, at 36). Consistent with a previously devised master plan for junior high schools, the decision was made to construct a junior high to alleviate the situation. (PX 32, at 537-8). Several sites were considered for the new school, but apparently only two were given serious consideration by the Board and the Common Council. The first was the area of Northland, Purdy and Alexander Streets; the second, on Woodlawn Avenue, was the old Offermann Stadium, the home of the City’s minor league baseball team. Both of these sites are in the North Masten district. See Map 3, infra. Controversy raged in 1958 over the site selection, with some citizens arguing that the Offermann Stadium-Woodlawn Avenue site would inevitably lead to an all black school. In a Board meeting December 10, 1958, concerned citizens presented their views. Among those who spoke against the Woodlawn Avenue site was Mr. Frank Caldwell, representing a committee of citizens, who urged that the school be constructed in a site conducive to an integrated facility: [W]e do staunchly urge that this Board . commence right now to accept the fact that residential segregation creates an educational problem, which must be faced by this Board. (PX 32, at 537). The then Chairman of the Board, Paschal Rubino, stated that the Board had never considered race in its decisions, that it always considered only the needs of the City’s children, and that “frankly, some of the apprehensiveness that exists at this point by your group, has never been a consideration of this Board.” (Id., at 537). Mr. Caldwell replied: “That is the basis of our complaint.” (Id.) In addition to Superintendent Manch and Mr. Rubino, the late Councilwoman for the Masten District, Cora Maloney, and two local ward supervisors, Mr. Delmar Mitchell and Mr. F. Cecil Brown, among others, spoke in favor of the Woodlawn Avenue site. (Id. at 5383-84, 5393). These proponents of the Woodlawn Avenue site, all leaders in the black community, expressed reservations, but finally agreed for the reasons stated by Mrs. Maloney: I wish that it could be at a different place, but if it can not be at a different place than the Offermann Stadium, and the children must have education, and the children are the innocent victims because the adults have situated and located there, then I rise or fall by the children of ■ the Masten District. (Id. at 5371-2). The Board voted unanimously to recommend the Offermann Stadium-Woodlawn Avenue site, and the Common Council, on Mrs. Maloney’s resolution, unanimously approved it. Chief among the reasons cited by the Board were demographic changes— “[W]e must build schools where there are children. There is no other way you can approach it,” (Rubino, Id., at 5374), and economic forces — fewer families would be displaced; lost property taxes would be much less; time of construction would be considerably shorter; site acquisition costs would be lower. (PX 34, at 29). There was evidence tending to show that this siting of the new junior high school guaranteed that it would be segregated because potential feeder schools mentioned at that time were predominantly black. But influential black leaders, like Mrs. Maloney, Mr. Mitchell and Mr. Brown, who supported the Woodlawn site, apparently were convinced that regardless of the difficulties the site presented, the possibility of an integrated school was not foreclosed. As the court’s discussion of the districting of Woodlawn shows, infra, the statements of Board members and the Superintendent encouraged their belief that the school would be integrated. They also apparently considered that economic and demographic reasons were sufficiently compelling to accept the Woodlawn Avenue site. Although it is a close question, it is the court’s opinion that this conflicting evidence is not sufficient to show racially seg-regative intent on the part of the City or the State defendants with respect to the siting of the Woodlawn Junior High School. As the court weighs the evidence, the siting of the school on Woodlawn Avenue was not a virtual guarantee of segregation, and it cannot be said “that the natural, probable, and foreseeable result of public officials’ action or inaction was an increase or perpetuation of public school segregation.” Oliver v. Michigan State Board of Education, supra, 508 F.2d, at 182. However, the same conclusion cannot be reached with regard to the district-ing decision that was made six years after the siting. During the debate on the site selection for Woodlawn, the following statements were made concerning the possible configuration of the school’s attendance zone: MR. RAND, a Board member: Now, that particular site [Woodlawn Avenue site] is nearer to the center of that area, which I think is made up of not just one race or one group — it’s quite an all embracing area, particularly the area stretching on the other side of Main Street, so that is another matter. (PX 32, at 5375). SUPERINTENDENT MANCH: Now, it is not unlikely — let me say it in that way, it is not unlikely that by placing the school in the Offermann site [Woodlawn Avenue], rather than the original site proposed, we may have a more integrated situation than would have been possible with the other arrangement, simply because the school is now suggested in a place a little bit further west — practically at Main Street, you might say. (Id., at 5378). [W]e have no intention of being part of any movement to create a so-called segregated school, and that we would be conscious of this and do everything possible to make it a school which would be as integrated as the schools in that particular area can be. (Id., at 5379). The Civil Rights Commission Report in 1963 stated: Dr. Manch holds out hope that Wood-lawn Junior High School will be an integrated school. “The zone will cross Main Street if I have anything to say about it,” he declares. (PX 10, at 41). In a June 1962 letter, Superintendent Manch had stated: A careful study precedes any establishment of. new school districts or redistricting that the best possible pattern of integration may be effected despite the difficult problems which may be posed by housing. (PX 10, at 74). Six years after the siting decision, push came to shove, as it were. After years of theorizing and analyzing, a final decision on the new school’s attendance zone had to be made. The Board provided the forum for citizens to express their opinions, and heated public discussion occurred. Several dis-tricting proposals were' bandied about by various Board members, the effects of which were racial ratios ranging from almost exclusively black to a 64-36 white majority. (Record, Vol. Ill, at 174). In addition, an alternative plan was proposed by which Lafayette High School would be utilized for the new junior high, and the new facility on Woodlawn would be used as a high school. [S — 26(c); PX 34, at 1]. Board consideration of the districting question stretched over several meetings. Among the topics discussed at those meetings was the fact that between the date of the site selection in 1958 and the Board discussion of districting in 1964, the State Board of Regents had announced its policy on integration in the public schools of New York State. (PX 28, pt. II, at 11-12). At a Board meeting February 26, 1964, Superintendent Manch read to the Board a statement that then Commissioner of Education James Allen had made October 28, 1963: As a matter of policy, the State Education Department believes de facto segregation to be a detriment to the provision of equal educational opportunity. The Department further fervantly [sic] hopes that local authorities will deal with the elimination of de facto segregation, that the responsibility will be accepted at the local level. . . . Therefore, if appropriate local action is not forthcoming, if adequate plans are not made and actively pursued by local authorities, the state, in faithfulness to its responsibility, will have no choice but to act to move to fill the vacuum created by inertia or postponement in the exercise of local responsibility- (PX 122, at 22-23). One month later, referring to the Commissioner’s statement, Dr. Manch told the Board members: At no time did he [Commissioner Allen] term • these statements “mandates” but they were interpreted as such throughout the state. Indicative of this, most of the large cities have already taken positions and acted on various proposals. (PX 124, at 36). At the Board meeting on the 26th of March, 1964, Mr. Parlato, a Board member, submitted a written resolution that would district Woodlawn Junior High School with the result that the school would be 99% black. [PX 34; PX 124, at 31-47; S-24(b)]. Board members Wright and Nitkowski had not been informed of this resolution prior to the meeting; Dr. Manch heard about it accidentally a day previous to its submission. (Record, Vol. Ill, at 176; PX 34, at 26; PX 124, at 31). During discussion on the proposal, Dr. Manch advised the Board: [I]t is not now feasible, from the point of view of sound education and administration, in view of everything that has happened, in view of all the factors, it is not now feasible, I believe, to draw the district lines for Woodlawn in such a way as to achieve a racial balance that would be meaningful or stable. I don’t think there is any middle ground in it any more. (PX 124, at 36). Dr. Manch did not set out the specifics of why it was not feasible to avoid a totally segregated school. Among the factors he evidently was referring to when he stated “in view of everything that has happened,” were a petition with ten thousand signatures submitted to the Board in 1963, by white parents living west of the Woodlawn school site, protesting the possible inclusion of their area in the Woodlawn district [PX 264, at 646; S-26(b)(ii)], and the atmosphere of the weeks previous to March 26, which he had referred to as “akin to panic.” (PX 124, at 33). The Board voted in favor of the Parlato districting scheme six to one. (PX 124, at 47). The sole dissenting vote was cast by Dr. Lydia Wright, the only black Board member, who had proposed both a district-ing scheme that would have avoided a segregated school and who also had supported the alternative plan involving switching Lafayette High School and the new junior high school. The final district plan for Woodlawn Junior High did extend west of Main Street, thus encompassing predominantly white neighborhoods, but a considerable portion of the district west of Main was made an optional zone, allowing students residing there the choice of attending School 56 or Woodlawn Junior. [S-27(b)(3)]. See discussion of optional areas, Section IV-C(2), infra. The remaining portion of the Wood-lawn district west of Main was not made optional, but the evidence showed that many students residing in this area (see Map 4, infra) avoided Woodlawn Junior by transferring to predominantly white schools. See discussion of transfers, Section IV-C(l), infra. The racial composition of Woodlawn Junior High School has not changed measurably in the twelve years since that vote. The evidence is overwhelming that the action of the Board, in approving the Paría-te districting plan for Woodlawn Junior High, was done with full understanding that the result would be a school student body almost totally black, and that this was the desire of the Board. This is not a case of “mere inaction . . allowing a racially imbalanced school to continue.” Hart v. Community School Board, supra, 512 F.2d, at 48. Rather it is an example of blatant segregative intent with clear segregative results. Woodlawn Junior High School was part of the Board’s master plan for junior high schools throughout the City. The Board was operating on a clean slate when it decided the district boundaries for this new school. The City defendants attempted to argue that once Woodlawn was constructed the resultant racial makeup was inevitable, and that the district chosen was “tight” and “well defined.” (Post-trial Brief for City Defendants, at 28). Yet, the defendants’ failure even to attempt to explain away the other zoning proposals that would have avoided an all black school belies this stance. Also, the defendants’ failure to call Superintendent Manch, Mr. Parlato or any of the other principal figures to the districting decision, supports the inference that their testimony would not alter the conclusion the evidence leads the court to make. The court finds that the Board willfully and intentionally caused Woodlawn Junior High School to be districted so as to be a segregated school. IV-C. TRANSFERS AND OPTIONAL AREAS The basic attendance policy of the BPSS is rigid — it requires each pupil to attend the school in the geographic zone in which he lives. (S-42). All schools in the system, with the exception of the vocational-technical high schools, follow this rule. (S-95). As is the case with most rules, however, there are several exceptions which allow a child to attend a school outside his geographically assigned school. The major exceptions follow. 1.Special course offered — a student is allowed to transfer to another school offering a course his own school does not feature. This is best exemplified by language transfers. See section IV-A(2) of this opinion, supra. 2. Medical necessity — physical and psychological reasons may be grounds for transfer. 3. Hardship — this exception makes allowances for families with special problems that make it difficult for the child to attend his ordinary school. 4. School adjustment — this exception apparently encompasses transfers to a different school when a child, for one reason or another, has had difficulty with teachers or other students in his original school. 5. Harassment — if the child has been the victim of physical or psychological abuse from other students, a transfer is sometimes allowed. (Record, Vol. VIII, at 27). 6. Voluntary integration — inner city students are allowed to attend peripheral schools outside their normal attendance zone. (Record, Vol. VII, at 108 — 109). 7. Optional areas — students residing in certain geographical areas are granted the privilege of attending a school outside their normal school district. (S-34). The plaintiffs charge that the Board defendants have manipulated the transfer rules and optional areas to effect segrega-tive results. 1. TRANSFERS Plaintiffs put into evidence over 70 transfer requests that were granted in the years 1968-1973. (PX 51; Record, Vol. IV, at 23-46). Among the specific reasons for granting the transfer requests, as stated by school officials on the transfer forms, were fear of black children and avoidance of Woodlawn Junior High School. On many of the forms, no reason at all is stated for granting the requested transfer. Although not all of these transfers adversely affected the racial balances of the schools involved, many involved transfers out of predominantly black schools to predominantly white schools. (S-50, 51, 52, 60). It was also stipulated by the parties that, in addition to official transfers granted by the Office of Pupil Personnel Services, some principals of schools peripheral to predominantly black schools granted unofficial transfers. (S— 49). Because of the different feeder patterns and grade structures, such transfers have potentially double and triple segregative ramifications. For example, School 16 students feed into Woodlawn Junior High School. On the other hand, students attending School 30, a few blocks away, feed into School 56 for grades seven and eight, and then go to Lafayette High School. (PX 296, at 26). So, a student avoiding black School 16 by transferring to School 30 is able to also avoid the nearly all black Wood-lawn Junior High. Board officials were aware that the avoidance of Woodlawn Junior High prompted some transfers. (Record, Yol. IV, at 12-13). Table 10 shows the racial makeup of three elementary schools located on Buffalo’s near West Side. All three of these schools are within blocks of each other, and none is in a predominantly black residential area. School 16’s district extends one block east of Main Street, into a predominantly black area, but it also extends seven blocks west of Main Street, a predominantly white area. (Record, Vol. I, at 162; PX 1). Although School 16’s district is predominantly white, the school, at least for the last decade, has been predominantly black, a situation one witness described as “anomalous.” (Record, Vol. I, at 164). It is stipulated that in 1972 twenty-seven students from the School 16 district were attending School 30, and fifteen from School 16’s district were attending School 38. (S-51, 52). Table 11 reflects the following facts about Schools 4 and 34: School 4 is heavily minority, School 34 is even more heavily majority, and the imbalances at both schools have become more disparate since 1962. What the table does not show is that these two schools are in one school district, that they are a few blocks from one another, that they have the same principal, that the Board considers School 34 to be an annex to School 4, that School 34 was built in 1863, and that School 4 is so underutilized that all the students in School 34 could easily be accommodated there. (PX 47, at 2; Record, Vol. Ill, at 23, 25, 26, 103; PX 263, at 63). Defendants argue that this is not a case of segregative action by the Board because the two schools are separated by a railroad track and the student population at both schools very nearly mirrors the populations of the respective neighborhoods the schools serve. (Record, Vol. III, at 103, 106, 109-110). The flaw in the defendants’ logic is that this argument fails to take into account that in 1970-1971, for example, 38 minority students from School 34’s area were attending School 4, and 41 white students from School 4’s area were attending School 34. (Record, Vol. III, at 24). According to the HEW review, the principal of the schools cited three reasons for these transfers: suspensions (an unknown number), special classes (the number is negligible), and favors granted to parents by a former principal. (PX 264, at 586). At one time, the Board did attempt to shut down the antiquated School 34 and consolidate the schools, but area residents protested and the Board demurred. (PX 264, at 586). It is, of course, no constitutional violation for the Board to ignore its own sound economic or educational determination and continue to operate a rundown facility. But the Board cannot maintain a segregated facility in order to placate the local community. Spangler v. Pasadena City Board of Education, 311 F.Supp. 501, 523 (C.D.Calif.1970). Defendants attempt to rebut the transfer evidence presented by the plaintiffs by showing that- the transfer policies predate problems of racial imbalance and were instituted without any racial motives, and that in any case any segregative effects from the transfers granted were not substantial. The defendants’ contentions completely miss the mark. There is no allegation that the transfer policies per se are denying plaintiffs their rights. Any organization must have flexibility, and a school system of 90 schools and over 60,000 students must, of course, allow for special circumstances. Valid transfers are not attacked. What is attacked is the knowing granting of transfers, for specious or blatantly discriminatory reasons, that increases the segregation that characterizes many schools in Buffalo. The defendants cannot deny what their own records show and what their own Director of Student Personnel admits—transfers were granted white students to avoid attending predominantly black schools. The transfer policy not only increased segregation, which when isolated as separate transfers might appear insubstantial, but it also increased the proliferating tendency on the part'of both school administrators and the public at large to identify certain schools as black. It is one thing to argue that unauthorized and surreptitious transfers, granted by certain principals, cannot be said to have substantially harmed the plaintiffs. It is quite a different matter when the individuals officially responsible for such matters authorize such transfers. Like a clever photographer who uses an airbrush to ..eliminate what he does not want in a picture, the defendants try to haze over what the evidence clearly shows. But we are not dealing with art here, and the Constitution does not permit this court to avoid the evidence, however unsightly. The combined effect of official and unofficial transfers, including the language transfers detailed in the court’s discussion of East High School, supra, was an annual total of 2,000-4,000 white students attending schools outside the zone in which they live, thereby contributing to the higher percentage of black students in various schools, including Schools 54,16, Fillmore Middle, Genesee-Humboldt [Junior High], Woodlawn [Junior], East High School, all of which have black student populations of at least sixty percent. (S-60). 2.OPTIONAL AREAS The stipulated materials show that optional areas, which allow students to attend a school outside of their normal attendance zone, existed in the following school districts: 1. An area involving Schools 56, 30, 16 and 17. Schools 56 and 30 are heavily white, while Schools 16 and 17 are predominantly black. The optional area, located in School 17’s district, allowed students living in that area to avoid School 17 in favor of one of the other three schools. [S-35(a)]. 2. An area involving Schools 54, 74 and 17. School 54 was a majority white school until recent years. This optional area, also located in School 17’s district, allowed students to avoid 17 by attending 54 or 74. [S-35(a)]. 3. An area involving Schools 31 and 40. Students in the overwhelmingly white optional area, located in School 81’s district, could attend 40, a white school, in favor of School 31, a predominantly black school. This option ended in 1965 when the area was put in the School 57 district. School 57 at that time was a predominantly white school. [S-35(b)]. 4. An area involving Schools 40 and 75. Students in this area, in the School 40 zone, could attend either 40, majority white, or 75, almost totally black. [S-35(c)]. 5. A portion of the Woodlawn Junior High School district, comprising the area bounded by Delaware Avenue, Main, West Ferry and West Delavan Streets, was made optional in 1964 when the school was originally dis-tricted. Students residing in that predominantly white area could attend either School 56 (which feeds into Lafayette High School) or Schools 16 or 17 (which feed into Woodl