Full opinion text
MEMORANDUM OPINION AND ORDER BATTISTI, Chief Judge. During at least the last 20 years, patterns of racial isolation in the Cleveland public school system have become steadily more pronounced. This situation is illustrated by a review of the percentage of all students attending regular Cleveland Public schools whose school was a one-race school: 1940: 88.37% 1950: 74.09% 1955: 71.55% 1960: 79.09% 1970: 86.07% 1975: 88.21% Looking only to the above statistics, one could reasonably conclude that the Cleveland school system was in essentially the same position with respect to racial integration in both 1940 and 1975. A single statistical measure seldom is a full representation of an actual situation. In trying to understand racial patterns in the recent history of the Cleveland public school system, another measure sheds additional light on the subject. Examining the percentage of black students attending regular schools which were one-race schools in various years indicates that from 1940 to 1974, there was a steady trend toward concentration of black students in segregated schools: 1940: 51.03% 1950: 58.08% 1955: 57.72% 1960: 76.03% 1970: 90.00% 1975: 91.75% These figures show that with one exception, the proportion of black students in the Cleveland public schools who have been regularly receiving their education in an integrated setting has steadily diminished during the past 35 years. These statistics and the underlying situation which they describe give rise to many troubling questions. Most of these questions however are beyond the purview of this court in resolving the issue now before it. In reviewing the above facts as well as all of the evidence included in the voluminous record in this case, the court has sought an answer to a single question of constitutional law. To what extent, if any, are the defendants in this case, public officials and public agencies, responsible for creating or for maintaining or both the segregated situation in the Cleveland public schools? The plaintiffs are certain named students in the Cleveland public school system and their parents and the National Association for the Advancement of Colored People. They are proceeding on behalf of all persons in the state of Ohio who are similarly situated to them. Their complaint alleges that the defendants, the Governor and Attorney General of Ohio, the State Board of Education, the Superintendent of Public Instruction of the Ohio Department of Education, the Cleveland Board and its individual members and the Superintendent of the Cleveland City Schools, under color of state law, have pursued policies, customs, practices or usages in operating the Cleveland public school system in a manner that had the “purpose and effect of perpetuating a segregated public school system.” It is deceptively easy to state the three elements which the plaintiffs must prove to establish their case. The court has the guidance of many recent court opinions explicating what duties the 14th Amendment of the Federal Constitution imposes on public officials in operating programs, of public education. At the outset, it is useful to summarize the state of the law to focus the task of this court. The Constitutional guarantees afforded under the. Fourteenth Amendment entered a new era in 1954 with the landmark decision of the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). That Case, which serves as the benchmark in the area of school desegregation, set forth. a holding, the simplicity and brevity of which belied its national import: “in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated . . are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. Id. at 495, 74 S.Ct. at 692. In the wake of Brown, trial and appellate courts sought to ascertain what school districts bore the brand of unconstitutional duality and how such districts should be dismantled and reconstructed in a unitary fashion. Initial efforts were in the south. Northern school desegregation cases constitute a relatively recent development. As in so many areas of the law, the critical issue in school desegregation cases is intent. It is an amorphous term that can mean different things in different factual and legal contexts. Because intent is such a subjective element, existing in pure form only in the minds of individual people, courts have found it necessary to discern evidence of intent through an analysis of its objective manifestations. This is admittedly an artificial mechanism, but one not unknown to other areas of the law, and without which, courts would be hard put to protect individual rights. At the outset it should be noted that the instant action does not involve a statutorily mandated dual school system that is segregated on the basis of race. Such systems were particularly prevalent in the south and were ultimately struck down in Brown. The segregation alleged in this case was not imposed by legislative fiat but rather is alleged to have been the result of purposeful action on the part of the defendants. This is to say that the segregation complained of is alleged to be de jure as opposed to de facto. The distinction transcends far more than semantics for the dichotomy between the two conditions appears to remain a very viable one. What then, is the yardstick against which the conduct complained of will be measured? The applicable law in this regard was set forth perhaps more succinctly in Oliver v. Michigan State Board of Education, 508 F.2d 178 (6th Cir. 1974). Therein the Sixth Circuit Court of Appeals stated: “A finding of de jure segregation requires a showing of three elements: (1) action or inaction by public officials (2) with a segregative purpose (3) which actually results in increased or continued segregation in the public schools. A presumption of segregative purpose arises when plaintiffs establish that the natural, probable and foreseeable result of public officials’ action or inaction was an increase or perpetuation of public school segregation. The presumption becomes proof unless defendants affirmatively establish that their action or inaction was a consistent and resolute application of racially neutral policies.” Id. at 182 (footnote omitted). In almost the same breath, the court went to great lengths to say that the inquiry does not go to individual motives or prejudices, but rather to the overall condition that has been brought about .as a result of official action. “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.” Id. at 182-83. It is thus clear that the necessary intent upon which a finding of de jure segregation is predicated, may be evidenced by the natural and foreseeable effects of the official practices and policies pursued, Hart v. Community School Board of Education, 512 F.2d 37, 50 (2d Cir. 1975). These condemning effects can be either the creation of a segregated condition or the continuation of an existing segregated condition that may have found its genesis in extrinsic forces, Morgan v. Kerrigan, 509 F.2d 580, 585 (1st Cir. 1974). The underpinning of this approach in the area of school desegregation is the Supreme Court’s holding in Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). The precise holding of that case was: “that a finding of intentionally segregative school board actions in a meaningful portion of a school system, as in this case, 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, and shifts to those authorities the burden of proving that other segregated schools within the system are not also the result .of intentionally segregative actions.” Id. at 208, 93 S.Ct. at 2697. Thus, courts have combined the test for de jure segregation with the holding of Keyes to articulate the applicable standard of liability in a school desegregation case: “We hold that a presumption of segregative intent arises once it is established that school authorities have engaged in acts or omissions, the nature, probable and foreseeable consequence of which is to bring about or maintain segregation. When that presumption arises, the burden shifts to the defendants to establish that ‘segregative intent was not among the factors that motivated their actions.’ ” United States v. School District of Omaha, 521 F.2d 530, 535-36 (8th Cir. 1974) (citing Keyes, footnote omitted). Noteworthy, too, is the recent case of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597, (1976). While that case provides additional guidance in the area of racial discrimination and equal protection of the law, it does not minimize the role of effect in the formula for ascertaining intent. Washington, supra, involved a constitutional challenge to the testing procedures utilized by the District of Columbia in the recruitment of potential police officers. A literacy test was administered to all such applicants, regardless of race. The test was also commonly used for evaluating other job applicants throughout the federal government. It was revealed, however, that approximately four'times as many black applicants to the Metropolitan Police Force failed the test as did whites. The claim of a denial of due process and equal protection of the law was based solely on the racial disparity contained in the test results. The court, in responding to plaintiffs’ due process claim stated: “our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it. has a racially disproportionate impact.” Id. at 239, 96 S.Ct. at 2047. Thus, it is clear that evidence of disparate racial impact, standing alone, is insufficient to sustain a cause of action based upon an alleged deprivation of constitutional rights. This is nothing more than a restatement of the widely accepted. proposition that the mere presence of racial imbalance, without more, will not support a claim of unconstitutional segregation. See e. g. Hart v. Community School Board, 512 F.2d 37, 45-46 (2d Cir. 1975). It should be noted, however, that the decision in Washington is in no way a departure from the existing state of the law, particularly with regard to the inferring of intent from effect. “Necessarily, an invidious discriminatory purpose may often be inferred from the totality of relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another . Nevertheless, we have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution.” Id. at 242, 96 S.Ct. at 2049. The holding in Washington, supra, is totally reconcilable with the test for de jure segregation articulated in Oliver v. Michigan State Board of Education, 508 F.2d 178 (6th Cir. 1974) and Berry v. Benton Harbor School District, 505 F.2d 238 (6th Cir. 1974). Those cases authorized a presumption of segregative purpose from, the fact of foreseeable segregative result. Oliver, supra, at 182. That presumption could be overcome only by affirmative proof of “a consistent and resolute application of racially neutral policies.” Id. The policy complained of in Washington, viz. the administering of the literacy test, was unequivocally racially neutral even though the results of the test, and therefore its effect, were not. Under those circumstances, and in accordance with the precise terms of Oliver, there could be no permissible presumption of segregative intent. Therefore, the only source of culpability in Washington was actual segregative purpose or motivation and it was this state of mind that was found lacking. One additional comment is necessary. The evidence adduced at trial encompassed far more than mere segregative effect. Many of the incidents established at trial, such as intact busing and certain school construction, can be rationally attributed only to a deliberate and conscious desire to create or perpetuate a segregated condition. As to these incidents, therefore, there is no need to resort to the inferring of intent from effect, although such an inference would be entirely permissible. The requisite intent sufficient to find de jure segregation was clearly and independently established. The plaintiffs are seeking relief from both local and state officials. Each set of defendants, the local school officials, the state school officials, the Governor and the Attorney General, are alleged to have caused or maintained the segregated nature of the Cleveland school system. It is therefore necessary to examine the nature of the authority vested in each set of defendants and the evidence as to how this authority was exercised. Absent a showing of a delegation of authority from one set of defendants to another, the liability of any of the defendants cannot be shown vicariously. At any particular time, however, the conduct of one set of defendants could give rise to an obligation of another set of defendants to take action. In determining whether any of the defendants denied the plaintiffs their constitutional rights, the derivative nature of their obligations must be kept in sight. A detailed understanding of what was happening at the local level, therefore, is necessary before determining the nature of the liability of the various parties, if any, for the segregated conditions which all parties admit exist in the Cleveland system. In their arguments to the court, the plaintiffs characterized this case as consisting of literally hundreds of segregatory incidents. The evidence as to these incidents was submitted primarily in documentary form. The court has considered all of this material exhaustively and the conclusions of this analysis are set forth at length, infra. In interpreting the evidence in the record, the court has faced a number of recurring questions or problems. A general discussion of these issues and the approaches which were taken toward them will aid in the understanding of the court’s treatment of specific factual questions. First, while the evidence in this case is voluminous, one question which it does not answer directly is what the racial composition of any given residential area was at any specific time. This information is crucial in assessing the intent and effect of many of the local defendants’ actions. Given the period of time which the plaintiffs’ proofs span, it would be virtually an impossible task to produce direct evidence on this question for each area and each time period as to which the plaintiffs’ alleged incidents raise the question. Testimony about general patterns at trial from several witnesses who had first hand knowledge of the residential racial patterns in Cleveland during various parts of the period from 1940 to the present has been helpful to the court in tackling these individual factual questions. The plaintiffs also prepared maps showing residential racial information as shown by the decennial census from 1940 forward. In addition to these sources, whenever such a factual question has arisen, the court has looked at the percentage of black students enrolled in schools in the particular area under consideration for periods preceding and following an alleged segregatory action by the local school officials and inferred from that the probable racial composition of area affected in the specific time frame. In terms of volume, the majority of the plaintiffs’ proofs focused on specific pupil assignment decisions made by local school officials over a 35 year period. These included boundary changes, creation of optional zones, use of rented facilities for classrooms, additions to existing schools of both permanent and temporary classrooms and other facilities, construction of new schools and closing of old schools. In analyzing these individual events, no easy formula emerged for judging when a specific incident had a segregatory effect. Actions which on their face might appear integrative on closer examination frequently were found to have enhanced emerging segregative patterns. For instance, the local defendants have suggested in some of their responses to these specific alleged incidents that where the sending school had a lower proportion of black students than the receiving school, the incident was prima facie integrative and bore no further scrutiny. In some instances where a reassignment was made to send students from a “whiter” to a “blacker” school, there was an integrative result, as suggested by the local defendants. However, on other occasions the reassignment decision appeared to have had the effect of drawing black students primarily from the “whiter” to the “blacker” school. Conversely, every reassignment decision in which the sending school had a higher proportion of black students than the receiving school did not necessarily have the effect of isolating black students. The court has examined each alleged incident to determine its effect and, if that effect was segregatory, whether such a result was foreseeable. Much of the plaintiff’s case focuses on the use to which Cleveland school officials put their available facilities. Some incidents to which the plaintiffs call the court’s attention are situations where predominantly black schools appear to have been overcrowded, sometimes to the extent of requiring the use of portable classrooms or rented space or both and sometimes involving use of half-day sessions or “relay classes” in educational jargon. In these instances, the plaintiffs have indicated “nearby” majority white schools which appear to have had available space that might have been used to obviate resort to such educationally undesirable solutions to overcrowding. In other incidents on which the plaintiffs have focused, they allege that boundary changes or creation of optional zones were undertaken with the intent or effect or both of identifying one' of the two schools involved as the “black” or the “white” school. In several of these situations, the local defendants’ proffered explanation for the changes has been that they were necessary due to the overcrowding of one of the schools involved. Against this background, the issue of the “capacity” of any given school became one of the most sharply disputed issues in the case, in presenting their case, the plaintiffs relied, where possible, on the capacity figures computed by the Cleveland Board’s own employees from 1952 to 1963 as represented in P.X. 74. The local defendants attacked the use of such figures, arguing that capacity was a variable figure, not an immutable figure which could be derived from application of any of several unchanging formulae. It was noted that a change in the average pupil-teacher ratio throughout the system could radically change any set of capacity figures. Other policy decisions, such as Superintendent Briggs’ program to have a library in every elementary school in the system and participation in school meal programs requiring space for food preparation and serving, also diminished the space available for basic classroom instruction. Further, various witnesses for the local defendants noted the varying impact which different types of classwork, e. g. typing, music, or science or language laboratory work, had on the basic capacity of a school. But beyond such general observations, the local defendants have not assisted the court in untangling what they insist is a very knotty problem. Given the wealth of information which local school officials have on year-to-year operations of the schools within their district, the court must note the failure of the local board to come forward with the specific data which it urged was necessary to the resolution of questions where capacity was a factor. (See transcript of closing arguments at 277 to 280). In Higgins v. Board of Education of Grand Rapids, 395 F.Supp. 444 (Mich.W.D.1973), the capacity of specific schools was also “hotly disputed by the parties.” Judge Engel characterized and framed the issue as follows: “The issue assumes great importance in determining the motives and intent of Board action concerning attendance zones, additions to existing buildings, new construction, and feeder patterns. The facts were involved, but the question for the court’s consideration was relatively simple: how, under the circumstances at a given time, would a school board fairly and realistically employ its available classroom space, without any intent to discriminate?” Id. at 462. The utility in this formulation of the problem is that it recognizes that in assessing the evidence in school cases, basic capacity figures are not used for their intrinsic validity, but rather as a point of departure for comparison of school use at any given time. Any difficulties which the court might have encountered in dealing with the collateral issue of capacity were significantly diminished by the fact that the issue generally arose in the context of elementary schools. In assessing the significance of enrollments which were either above or below the stated capacity, the court assumed that factors such as variations in curriculum from school to school were not nearly as significant at the elementary level as at the secondary level. In making such an assumption, the court was guided by statements in the local defendants’ publications on the meaning of capacity which distinguish between the problems in computing and interpreting capacity figures for secondary schools (P.X. 117 at 8-9) and elementary schools (P.X. 117 at 23-24.) At the elementary level, the court regarded the capacity figures as an indication of the relative potential for use of various schools. The court recognizes this to be a theoretical measure and has considered the various specific conditions, which the local defendants brought to the court’s attention, that would have lowered or raised such potential. The court relied heavily on P.X. 74 on the issue of capacity, but this exhibit had specific information only for the period from 1952 to 1963. The plaintiffs offered a document prepared by the Cleveland City Planning Commission in December 1971 which purported to give capacity figures for Cleveland schools as of that date, P.X. 223. Apparently capacity as reported in this document was computed by a different formula than that which the school employees used in P.X. 74. The court found that these estimates tended to be higher than capacities calculated on the assumptions used in P.X. 74. Accordingly, where possible, the court has calculated its own capacity estimate for schools not listed in P.X. 74 or for schools which have had additions since 1963. In doing so, the court assumed that a new classroom in an elementary school could accommodate 35 students, where enrollments were pressing, without being considered overcrowded. As with all capacity figures, these estimates were relied upon only for their relative value. Much documentary evidence was submitted to the court concerning specific assignment decisions of the local defendants. This evidence has for the purpose of clarity been analyzed by geographical area and, within such analyses, generally in chronological order. Following this detailed examination the court has addressed the general issues of relay classes, intact busing, special transfers, faculty assignment, housing and neighborhood school policy. CENTRAL AREA In 1940, approximately 15 percent of the students in the Cleveland Public Schools were black. Slightly more than half of these students were enrolled in 10 regular schools which were plainly identifiable as black inasmuch as black students constituted 90 to 100 percent of the enrollments of those schools. Of course, the other obvious way of describing this situation, as the proverbial optimist might do, is to say that almost half of the black students in the system were being educated in situations with a significant number of white students. From the point of view of the present polarized conditions in the Cleveland system, such a situation is almost enviable. Some statistical measures of integrated or segregated conditions in the system, particularly the percentage of all students in essentially one race schools, are almost the same for the years 1940 (88.37%) and 1975 (88.21%). However, comparison of this measure with a statistic which focuses on the impact on black students in the system, the percent of black students in essentially one-race schools, 51.3% in 1940 and 91.75% in 1975, aids in understanding the basic issue in this case. At issue is whether black students in the Cleveland public schools have been denied equal access to the benefits which a unitary public educational system provides. All of the defendants have maintained that the present situation in which over 90 percent of the black students in the system are attending one-race schools has evolved as a result of private actions over which they had no control and in which they had no involvement. The plaintiffs’ proofs essentially date from 1940, and the court has been asked to scrutinize many specific acts of the local school officials which occurred long before any of the present individual defendants had come to their present positions. Despite the apparently mooting effect of the passage of time as to many of these incidents, the court undertook such a detailed analysis. The overriding inquiry in the course of examining the older incidents in the record was to determine what factor the actions and policies of school officials had played in giving rise to the underlying residential segregation which the defendants now argue is a defense. During the decade of 1940-50, the total enrollment in Cleveland public schools dropped significantly from 114,769 in 1940 to 94,186 in 1950. During this period there was a moderate rise in the number of black children enrolled in Cleveland public schools from 16,772 in 1940 to 24,849 in 1950. This indicates the effects of the economic depression of the 1930s and of World War II on the average size of families as well as the effect of suburban development attracting young white families outside the city limits. The increase in school age black children appears to have been in part the result of in-migration of black families drawn to Cleveland by the prospect of employment, particularly in the many industrial plants in this area. In 1940, the eight regular elementary schools in the system had black student enrollments in excess of 95 percent and all were in the Central Area, as designated by the local school authorities. At the same time, there were an additional 58 regular elementary schools which had some black students enrolled, although their percentage in the schools’ enrollment in most instances was relatively small. One may infer that as of 1940 the residential patterns which were to emerge as more black families moved to Cleveland was not predestined. Testimony at trial was to the effect that the real estate market in Cleveland was managed in such a way that black consumers were afforded the opportunity to bid for housing only in certain areas. In this respect, the concept of the neighborhood school was meaningful according to the plaintiffs as a signal to all concerned of who should expect to be able to make their home in any neighborhood at any particular time.' With this in mind, it is useful to examine in a chronological order the student assignment decisions which were being actively made during the 1940s and 1950s to see if such signals were being broadcast. A number of the schools operating in the Central Area in the 1940s have since been closed. It is clear that boundary changes or other assignment decisions concerning these schools exclusively could have no continuing direct effect. (See, for instance, the alleged incidents discussed in the local defendants’ response documents E-l, E-2, and E-3.) Tracing the student assignment decisions which affected the enrollment at Rutherford B. Hayes Elementary School during the 1940s and 1950s, one detects a distinct pattern of color-conscious conduct on the part of school officials. In 1940, overcrowding was plainly a problem at Case-Woodland (0.81%, 807/630) and was also considered a problem at Burroughs (96.27%, 1154/1225). The next year the school officials by rescinding a 1933 boundary change which had transferred part of the Rutherford B. Hayes attendance area to Burrough and a 1935 boundary change transferring an additional portion of the Hayes attendance area to Case-Woodland, attempted to deal with those overcrowding situations. In 1941 it appears that Hayes (833/980) did have some available space which could be used to help alleviate overcrowding, but it does not appear that this would have been sufficient to thoroughly solve the overcrowding at one of the two sending schools, Case-Woodland (864/630). Adjacent to the Case-Woodland attendance area and sharing a long boundary with it was Mayflower (809/1085). There is no explanation as to why its available space was not used to help relieve overcrowding at Case-Woodland. One fact is known. Both Case-Woodland (’40: 77.57%; ’41: 94.91%; ’42: 95.9%) and Mayflower (’40: 79.35%; ’41: 87.76%; ’42: 85.6%) had experienced significant increases in the ration of black students in their enrollment. Mayflower which was on the periphery of what appear^ to have been the major overwhelmingly black residential area in the city did not have as high a black ratio in its enrollment as Case-Woodland. On the basis of this single incident and particularly in light of the relatively slight difference in proportional black enrollment at the two schools, it is difficult to draw any conclusions as to the practices or motivations of school officials which caused this omission. Subsequent events, however, may shed some additional light on the matter. In 1943, Hayes which was 98% black appears to have become seriously overcrowded. Its enrollment was 1605, while its basic capacity as reported in 1952 was 980. There appear to have been no additions or closings of classrooms at the school between 1943 and 1952. Even allowing for the possibility of a higher acceptable teacher-pupil ratio in the 1940s than in the 1950s, the need for some remedy was and is clear. A portion of the Hayes attendance area was transferred to the Sterling Elementary School attendance zone in December 1943. The 1943 percentage of black students enrolled at Sterling was 78.5 and its 1952 capacity is shown as 630. Its 1943 enrollment was 675, but by 1943 standards arguably it might have had some available space. This boundary change appears to have been somewhat integrative. Further relief came with the conversion of Outhwaite (later Alfred Benesch) to a regular elementary school in the fall' of 1944. Outhwaite also drew students from two other overwhelmingly black schools, Case-Woodland and Gladstone. It opened 99.07% black. But to fully evaluate the significance of these boundary changes, it is necessary to determine whether they solved the underlying problem of overcrowding, and, if not, whether further remedial actions were rejected because of racial considerations. The overcrowding problem at Hayes did not end. Its 1944 enrollment of 1159, while a considerable reduction from the 1943-fig-ure, would still overtax a structure with a theoretical capacity of approximately 980. Additional resources appear to have been available. A school with at least as much available capacity as Sterling was Marion with a 1943 enrollment of 557 of whom 49 percent were black. While its 1952 capacity is reported at 560, in 1942 when it had an enrollment of 553, it is reported to have had one closed classroom. Marion did not share a boundary with Hayes, but it was approximately the same distance from other portions of the Hayes attendance area as Sterling was from the area affected by this boundary change. A school which did share an attendance boundary with Hayes was Waring Elementary School; which was also approximately the same distance from portions of the overcrowded Hayes attendance zone as Sterling was from the actually affected area. Waring clearly appears to have had available pupil stations in 1943. Its 1943 enrollment was 588, while its basic capacity in 1952 was 630. This capacity figure presumably incorporates an assumption of a lower acceptable student-teacher ratio than would be reflected by the 1943 average practice. Interestingly, in 1944 Waring’s enrollment dropped to 514. Black students constituted 4.4 and 7.0 percent of Waring’s enrollment in 1943 and 1944 respectively. The resources of Marion and Waring were not marshalled to solve overcrowding at the overwhelmingly black Hayes despite their accessibility which appears nearly equal to that of Sterling. Safety factors do not appear to be a plausible explanation for these omissions. The Hayes, Sterling, Marion and Waring attendance areas were sliced by crosstown streets. However, a child living in the northern part of the Hayes attendance area would encounter no more traffic hazards going north to Waring than south to Hayes. Accordion-like boundary changes transferring part of the Sterling area to Marion and in turn more of the Hayes area to Sterling would have led to a fuller solution of the Hayes overcrowding problems. One common characteristic of both Marion and Waring was that less than half of their enrollment was black. One might infer that there was a reticence on the part of school officials to introduce more black students into these schools. Such an inference would be supported by evidence of other similar behavior by school authorities during this time period. The opening of Outhwaite as an elementary school suggests an inclination of school planners to contain blacks. The attendance area of the new school was completely surrounded by schools which were in excess of 90 percent black, which conferred upon it the dubious distinction of becoming the second thoroughly impacted black school in the Cleveland public school system. An impacted school, as the term will be used in this opinion, is one which could not be integrated by a redrawing of boundaries with contiguous schools, all of which are in excess of 90 percent black. The first such school in the Cleveland system was Dike Elementary School. The court is aware that in opening Outhwaite as an elementary school, school officials were converting an existing board-owned facility to a new use. During a period of war, as this was, obviously new construction would have to be viewed as an unlikely alternative. The court is also equally aware of the fact that the concentration of black families with school age children which necessitated the opening of a new elementary school was not largely the result of the workings of the private real estate market. Rather the opening of Outhwaite as an elementary school coincided with the opening of Carver Park Housing Project, a public housing estate planned for occupancy by blacks. As discussed elsewhere in this opinion, the planning of public housing was coordinated with agencies providing public services, assurances that public services will be provided being a necessary prerequisite to the construction of the project. Thus school officials were involved in this public housing site decision and its foreseeable result of residential concentration by race. This concentration, in turn, resulted in an impacted black school. Another measure allegedly aimed at relieving the overcrowding at Hayes (99.7%, 1159/980) in 1944 was the creation of an optional zone at the south end of the Hayes area allowing students from that zone to attend Case-Woodland (92.8%, 724/630). This approach is subject to two criticisms. First, in seeking to relieve overcrowding at one school, it exacerbated a similar problem at another school, when, as discussed above, this was not the only possible alternative. Second, there is no explanation as to why the school officials addressed the problem with optional zone, rather than a boundary change. While the relative disparity in the proportional black enrollment at the sending and receiving schools is not large in absolute terms, there is the possibility that the optional zone contributed to the loss of white students at Hayes from 1943 (98.0% black of 1605 or, conversely, approximately 30 non-black students) to 1944 (99.7% black of 1159 or, conversely, 3 or 4 non-black students). The enrollment at Hayes continued to increase through the 1940s in spite of the assignment adjustments discussed above. In September 1948, the school officials again sought to ameliorate the problem at least partially with a boundary change assigning upper elementary students from a designated portion of the Hayes area to attend Sterling. Clearly Hayes which had an enrollment of 1262 in 1947 and 1352 in 1948 after this change and a theoretical capacity of only 980 was in need of relief. But the choice of Sterling as the source of that relief again strongly suggests that school officials were not neutrally considering all of the alternatives available to them. In 1947, the Sterling enrollment was 658, already 28 students over its theoretical capacity of 630, as shown in P.X. 74. In 1948, after this boundary change its enrollment had increased to 723. In ameliorating one problem of overcrowding, school officials were contributing to the creation of another. Again, if this were the only alternative available to school officials, it would be reasonable to more evenly distribute the pressures of overcrowding. It was not the only alternative. Waring was still operating with an enrollment, 548 in 1947 and 575 in 1948, which was less than its basic capacity of 630. Since the reassignment measure adopted at this time affected only older elementary students, students from the northern portion of the Hayes attendance area could have reasonably been assigned to Waring. The most apparent distinguishing characteristic between Sterling and Waring at this time was the proportion of black students in their enrollment, 88.8% and 4.0% respectively. Notable is the fact that Waring’s proportional black enrollment had in fact decreased from 7.0% in 1944. Given the nature of the remedial action taken in 1948, the court concludes that reasonable school officials acting in a color-blind fashion would have transferred some of the upper elementary students from the 98.7% black Hayes to the 4.0% black Waring. There is one point about the court’s evaluation of various decisions by school officials which should be made clear. Clearly since the 1940s, there has been an enormous rethinking as to how public officials should treat racial issues. Indeed this process continues to this very moment. The court does not conclude that the school officials who engaged in the various conduct discussed here were necessarily acting with actual malice toward black students. In fact, the court assumes the contrary. The Court has undertaken this minute analysis not to cast aspersions upon particular individuals who were responding in all probability to the social and political pressures of the day. Throughout the school system, they were facing problems of mobility in the population and later of population explosion, the so-called postwar baby boom, of a magnitude that was difficult to predict. Clearly developments in the community called for responsive action from school officials. At the same time, constitutional principles required that those actions meet certain standards in affording all students in the Cleveland public schools an equal education. Even prior to Brown v. Board of Education, supra, it was understood that black children were entitled to educational programs and opportunities equal to those afforded their white counterparts. In this spirit, the court must conclude that the various actions and inactions in dealing with overcrowding at Hayes during the 1940s, considered as a whole, are strong evidence of a pattern and practice at that time to contain black students in overwhelmingly black schools. This was done despite the fact that the crowded conditions in these black schools must be viewed as indicia of their inequality when compared with predominantly white schools. On several occasions, the “solution” to overcrowding was to shift students to another predominantly black school which was already overcrowded itself, e. g. Sterling and Case-Woodland. At the same time, the resources of essentially white underenrolled schools, most notably Waring, were not used in resolving problems of over-crowding. It is fair to conclude that this conduct by school officials was interpreted as a signal to families in the real estate market that the Waring attendance area would remain a white “neighborhood.” Another incident during this time period which suggests that, where ameliorative action was necessary, containment of black students in identifiably black schools was a practice, is the 1947 boundary change in which a southern portion of the Marion attendance area (64.3%, 644/560) was transferred to Mayflower (97.0%, 942/1085). The court assumes that the whites attending Marion lived primarily in the northern section of the schools attendance zone, that is in areas abutting the predominantly white neighborhoods which were in the St. Clair Elementary School attendance area. Conversely the court assumes that the children affected by this boundary change were primarily black children. Based on likely conditions, the record indicates that a less segregative alternative to Mayflower was Harmon (87.7%, 293/535). According to the School Housing Report for 1947, Harmon had six closed classrooms while Mayflower had one. As a single incident, the decision to send students, most or all of whom were presumably black, to a 97% black school rather than an 87% black school does not suggest the worst kind of manipulation. As part of a pattern, however, it cannot be ignored. At the end of the decade of the 1940s, the concentration of black residents continued to be most heavy in the Central area of the Cleveland School System. By 1950, there were 13 regular elementary schools which had proportional black enrollments in excess of 95 percent, as opposed to the 10 such schools in 1940. These schools formed a core. Four shared no boundaries with any school having a black enrollment of less than 90 percent. Six had enrollments substantially in excess of their capacity as calculated by school officials in 1952. Only one of these schools had any closed classrooms, Gladstone with four such rooms. A summary of relevant statistics for these predominantly black schools follows: proportion black enrollment/ capacity closed classrooms Bolton 98.8% 829/1050 0 Burroughs 100.0% 1053/1225 0 Case-Woodland 99.5% 777/630 0 Giddings 99.7% 670/775 0 Gladstone 100.0% 500/735 4 Hayes 97.6% 1350/980 0 Irving 96.2% 707/600 0 Dike 100.0% 590/665 0 Kinsman 95.7% 1446/945 0 Mayflower 95.4% 802/1085 0 Outhwaite 98.0% n/a/1155 0 Wooldridge 99.0% 792/700 0 Quincy 99.6% 750/665 0 In contrast, they were ringed by 12 schools, all but three of which had proportional black enrollments substantially below the percentage of black students in the Cleveland Public Schools at the time (26.7%). Eight of these schools had enrollments vhich were at least 200 students below their basic capacity as calculated in 1952. One school had an enrollment significantly over capacity, Hough. According to the 1950 School Housing Report, these schools had a combined total of 51 closed standard classrooms. For comparison, the same 1950 statistics listed for the core school are listed for the ring schools herewith: proportion black enrollment/ capacity closed classrooms Boulevard 7.34% 395/700 4 Dunham 17.66% 1138/1125 0 Harmon 87.81% 230/535 6 Hough 10.98% 1148/1015 0 Observation 81.67% 311/910 0 Mt. Auburn 0% 260/700 8 St. Clair 18.37% 283/490 6 Tod 30.15% 252/490 7 Waring 6.77% 576/630 '0 Warren 5.85% 259/770 9 Woodland 2.49% 562/595 0 Woodland Hills 4.22% 332/455 1 At the very least, the above figures indicate an uneven management of these various schools. The task before the court, however, is not to review generally the administration of the schools over the time period covered by the plaintiffs’ evidence in this case. Rather, as has been indicated before, the task brought to the court is to determine whether the Cleveland Public Schools were operated as a truly unitary system. On the facts above, the color-blindness of school officials during this period must be questioned. Assuming that the practice in the early 1950s was to assign approximately 35 students to an elementary class — an assumption which plainly gives the local board the benefit of the doubt — the 51 unused classrooms in the “ring” schools could have accommodated 1785 students. School officials ought to have utilized such presently available facilities, if possible, before opening any additional schools. Step-by-step changes would have achieved the end of making the fullest use of these otherwise under utilized “ring” schools. Instead in 1950, the school officials dealt with overcrowding in the core schools by converting part of the Longwood Vocational School for Girls into a primary (K-3) School. Longwood Primary School (100%, 371/? — dual use of school makes PX 74 capacity figure unreliable for this year) opened with a totally black enrollment which had been drawn from Mayflower (’49: 897/1085; ’50: 95.39%, 802/1085), Sterling (’49: 723/630; ’50: 89.49%, 674/630), Case-Woodland (’49: 797/630; ’50: 99.49%, 777/630), and Hayes (’49: 1409/980; ’50: 97.56%, 1350/980). As the 1949 enrollments at the latter three schools reveals, action to deal with overcrowding at the sending schools was plainly needed. The initial difficulty with the action taken by the school officials in partially converting Longwood is that the overcrowding in three of the four sending schools appears to have not been fully resolved. If all the schools within this area of the city were similarly overcrowded, this result would have had to be tolerated. There were, however, at least five schools which were reported to have unused standard classrooms that might have been incorporated in a plan of step-by-step boundary changes to relieve the overcrowding addressed by the opening of Longwood Primary School. These schools were: closed classrooms proportion Warren 9 5.85% Tod 7 30.16% Harmon 6 87.1 % Gladstone 4 100.0 % Marion 1_ 68.95% Total 27 Utilization of these available classrooms theoretically would have created 945 pupil stations. The aggregate overenrollment at Sterling, Case-Woodland, and Hayes in 1950 (that is, enrollment minus capacity totalled for the three schools) was 561. While Gladstone and Harmon had black enrollments which were in the same range as the three overcrowded schools, the low ratio of black students at Warren and Tod is notable. The high number of available classrooms at these two schools strongly suggests that student assignment policies concerning this area of the school system were being managed to keep these schools as white as possible. Physical barriers which might otherwise define “neighborhoods” should not be taken as excusing unnecessary waste of available school resources with such a detrimental impact on a suspect class of students. Indeed, to the extent that school attendance zones were supposed to reflect some underlying sociological structure, school officials apparently viewed such patterns as being more flexible in essentially all black residential areas than in other areas. In January 1951, a portion of the Longwood Primary School, (100%) attendance zone was transferred back to the Mayflower area (98.6%, 836/1085). The incident is a minor one, as certainly there was available space at Mayflower and it affected only one block. Moreover, whatever its original direct effect, it could not be continuing as both the sending and receiving schools have since been closed. The incident is instructive, however, because of the two changes which this area underwent (Mayflower to Longwood in September 1950 and Long-wood to Mayflower in January 1951) within a five month period. The number of children attending Cleveland Public Schools increased dramatically during the decade of the 1950s, reflecting the so-called “baby-boom” following World War II as well as continued in-migration of new families to the city. By 1955, the total public school enrollment (113,067) was almost equal to the 1940 figure (115,769) and still growing rapidly. New school construction was plainly going to be needed. Various decisions made in the course of this new construction appear to have had foreseeable effects which bear close scrutiny. In 1954, Longwood (100%, 810/770) was converted from a primary school to a regular elementary school. Students were assigned from areas formerly in the Sterling, Case-Woodland, Mayflower and Hayes attendance areas. The act of creating more room for elementary students is not itself subject to criticism. The problem is that the overcrowding in the sending schools which precipitated this conversion was not completely resolved, as the figures below indicate, and apparently more could have been done. '53 '54 enrollment/ '53 '54 enrollment capacity % black % black Sterling 735 758/700 89.4% 63.1% Case-Woodland 859 711/630 99.0% 99.4% Mayflower 881 802/1085 98.8% 97.9% Hayes 1473 1069/980 98.4% 98.9% In responding to the plaintiffs’ description of the various boundary changes associated with the 1954 conversion of Longwood, the local defendants note that at least one step-by-step boundary change was made. That is, after some Sterling students were reassigned to Longwood, some Marion students were assigned to Sterling. It is notable that after these changes the proportion of black students at Sterling dropped from 89.4% in 1953 to 63.1% in 1954. Harmon at this time was substantially underenrolled (’53 : 89.9%, 307/535; ’54: 89.9% 307/535). If the objective of the school officials had been full utilization of available facilities, it would seem that further step-by-step boundary changes should have been made to involve Harmon in the plan to relieve overcrowding. The reasonable boundary adjustment would have been to assign students from the northwest panhandle of Marion (’53: 66.4%, 634/560; ’54: 67.2%, 568/560) to Harmon. See 1947 boundary map). The local defendants’ explanation for not involving Harmon in this redistricting plan is that access problems existed, citing the problem of walking under railroad bridges. Neither the 1947 nor the 1967 map of school attendance zones indicate any railroad lines in the area between Harmon and Marion. In absence of a sufficient neutral explanation for the failure to involve Harmon in resolving overcrowding in the area at the time, the court finds it necessary to consider what racially motivated reasons might have accounted for this omission. As noted above, the one step-by-step boundary change which the school officials did undertake appears to have resulted in a substantial reduction of the proportion of black students enrolled at Sterling. The end of seeking to establish Sterling as a more integrated school would be laudable when considered in a vacuum. If this was at least one of the goals of this redrawing of boundary lines, however, its execution would be subject to several criticisms. First, the increase in integration at Sterling appears to have been at the expense of isolating black students formerly assigned to Sterling to the totally segregated Longwood. Second, the unwillingness to assign students from Marion to Harmon not only isolated the Harmon students, but wasted valuable and limited resources of the school system at a time and place where there was obvious need. Finally, the failure to use all of Harmon’s available space resulted from the school officials’ conscious unwillingness to assign white students from Marion (67.2%) to the significantly more black Harmon (89.9%), this undercuts the local defendants’ assertion that the neighborhood school policy has continuously been applied in a racially blind fashion. The various questions raised by the conversion of Longwood to a regular elementary school and the consequent boundary changes would not loom very large except for the pattern which emerges from several school openings at about the same time, in particular Chesnutt and Clara Tagg Brewer, discussed infra. In 1954, George Washington Carver (98.8%, 730/590) Elementary School also opened. Unlike Longwood, which was an existing board-owned facility, Carver was newly constructed. Thus, school officials had a full measure of control oversite selection. Its students were drawn from areas which, formerly had been part of the Hayes, Burroughs and Outhwaite attendance. In 1951, the initial planning year for Carver, these three sending schools had the respective proportional black enrollment as follows: 97.9%, 99.6% and 98.5%. It was clearly foreseeable that Carver would open a virtually all-black school. The only schools which might have presented integrative alternatives, assuming that children were to walk to school, were Sterling (’54: 63.3%, 758/630), Dunham (’54: 47.7%, 1638/1125) and Waring (’54: 8.3%, 576/630). Sterling and Dunham were both experiencing overenrollment, and the relatively small amount of available space at Waring could not absorb the burgeoning student population in the area ultimately served by Carver. The result of this school construction was plainly containment of blacks in an overwhelmingly black school. Whether a different site selection for Carver might have been possibly less segregative in effect is a difficult question, given the commercial development to the north of the actual Carver site. The relevant observation, however, is that in 1954, ironically the year in which Brown v. Board of Education was decided, the Cleveland Board of Education opened the first newly constructed school which from its inception was essentially an all-black school. This event surely should have signaled school authorities that integrated education in Cleveland would be the exception and not the rule for both black and white students, unless the “neighborhood” school policy was tempered. Instead the policy appears to have been implemented in such a way as to contain blacks even where integration was not only feasible, but where the alternative resulted in gross disparities in utilization of adjacent “black” and “white” schools. This is illustrated by the events in the Kinsman area. Kinsman was accommodating 500 students more than its basic capacity of 945, in other words, it was over enrolled by more than 50%. It shared boundaries with Boulevard (7.34%, 395/700, 4 closed standard classrooms), Mt. Auburn (0%, 260/700, 8 closed standard classrooms), Woodland (2.49%, 562/595, 0 closed standard classrooms), and Woodland Hills (4.22%, 332/445, 1 closed standard classroom). A double set of railroad lines did separate the Kinsman area from all of these schools. However, the distance and the safety factors which would have been involved in assigning upper elementary Kinsman students to Mt. Auburn and Boulevard do not appear to outweigh the benefit of relieving the gross overcrowding at Kinsman. Likewise, Tod shared the western boundary of Kinsman and had over two hundred theoretically available pupil stations. At this time, the Sidaway Bridge apparently provided access from the Kinsman area to Tod, as evidenced by its boundary at the time. The available space at Mt. Auburn, Boulevard and Tod was more than sufficient to solve the obvious overcrowding at Kinsman in 1940, and yet school officials allowed it to sit idle. This state of facts seems explicable only in terms of a deliberate effort on the part of school officials to preserve the identification of the “ring” schools as “white schools.” By their inaction, school officials joined in transmitting the message that blacks were not welcome in these neighborhoods. They contributed to effective designation of areas as white neighborhoods or black neighborhoods. Subsequent actions by school officials only bolster this conclusion. As the local defendants acknowledge in their response E-168, crowded conditions existed at Kinsman from 1944 to 1959. School officials did undertake certain actions to alleviate this continuing problem. But in each instance, these remedial efforts contained blacks in overwhelmingly black schools. Thus some Kinsman students were assigned to Rawlings Junior High (’44: 84.1%, ’59: 100%) School from 1944 until 1959. During the 1950s, two schools were planned and constructed to draw students from Kinsman; Chesnutt (’55: 99.54%, 660/630) and Anton Grdina (’59: 97.6%, 687/665). In reviewing the evidence, the student reassignment decisions made pursuant to the opening of Chesnutt in 1955 stand out as among the most blatant actions of school officials in deliberately separating students by race. In 1954, the year prior to the opening of Chesnutt, Kinsman (98.75%, 1771/945 had an enrollment which was 826 students above its theoretical capacity! While some Kinsman classes were being held at Rawlings Junior High School (’54: 99.65%, 1120/1567), even if all of the theoretically available space at Rawlings were marshalled for use for the overflow of Kinsman students, there would still have been an aggregate over enrollment at Kinsman of approximately 400 students. In 1954 in addition to drawing students from Kinsman the new Chesnutt also drew students from Wooldridge (99.8%, 787/700) and Tod (’53: 28.7%, 251/490; ’54: 6.38%, 188/490), which shared a long boundary with Kinsman. As a result of this latter change, Tod had a marked decrease in its total and its proportional black enrollment. Prior to the opening of Chesnutt, the walking distance from the western portion of the Kinsman attendance area to Tod was relatively short because of the existence of a footbridge, the Sidaway Bridge, which spanned Kingsbury Run. Prior to the opening of Chesnutt, the Tod attendance area included an area northeast of Kingsbury Run. Obviously, the Sidaway Bridge was part of the access route for the children from this area. When the Chesnutt boundaries were drawn, this area was included in its attendance zone. The apparent effect of this was to remove virtually all of the black students attending Tod to Chesnutt and to cause a substantial enrollment drop in the already drastically under utilized Tod. Consideration of the safety of elementary school children daily traversing a footbridge was clearly a matter which school officials could reasonably consider. But in the instant incident, the continuing severe over enrollment which plagued Kinsman until the opening of Anton Grdina in 1959 suggests strongly that the motive of the school official