Full opinion text
OPINION AND ORDER DUNCAN, District Judge. This matter is before the Court following trial on the issue of liability. The Court sets forth hereinbelow its findings of fact and conclusions of law, in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. I. INTRODUCTION A. OPENING STATEMENT The Court has listened to and then carefully examined the evidence in this most important case. After having considered the evidence and applied what I understand to be the law of the United States, I conclude that plaintiffs are entitled to judgment. It is the duty of the Court to set forth the reasons for arriving at that conclusion. In doing so, it is of the utmost importance that all concerned citizens are able to understand this decision clearly. I am well aware that many people are unfamiliar with and distressed by the law of the land which requires that school desegregation decisions, involving the education of our precious children, must often be made by a single judge rather than other governmental officials or the voters. Moreover, the language that the Court and lawyers traditionally use to communicate the reasons for our decisions is often unfamiliar and mysterious to those not trained in the law. In the writing that follows, the Court will strive to avoid language that may not be clear to all who choose to read this decision. On the other hand, the Court cannot evade its responsibility to counsel in this case who have worked long, hard and sincerely in behalf of their clients. The legal authorities and precedents upon which the Court relies must be communicated to the lawyers. To facilitate a reading and understanding of this opinion, the Court has prepared an appendix containing a glossary of terms and a few maps. The pages that follow contain a discussion of the evidence presented during the trial of this case, and an application of the law of the United States to that evidence. The Court will endeavor to describe the posture of the Columbus public schools at time of trial, and to examine how it came about. The complexity and the sheer volume of the evidence presented in this case have delayed this opinion long past the point at which the Court would have preferred to have rendered a decision. This delay in reaching a decision should not be construed to reflect a hesitancy on the part of the Court in determining the basic result required by the evidence and the law. I am firmly convinced that the evidence clearly and convincingly weighs in favor of the plaintiffs. Since 1954, when the United States Supreme Court decided the now famous case Brown v. Board of Education (“Brown I”), 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, our citizens, parents, children, school officials, other local public officials, congressmen, presidents of the United States, and judges have to some degree or other grappled with the effect that this case and those cases that follow it have had upon a system of education that has been a significant contributor to the enormous progress of this nation. Cases have arisen in the South and now the North, in rural as well as urban school districts, in Cincinnati, Cleveland, Dayton and now Columbus. A school desegregation problem is one we could all do better without, but there is no denying that it is just that — a problem for our community — a problem that simply won’t go away if left alone. Although I have mentioned such problems in other areas of the country and Ohio, this case is unique; there are some identifiable similarities, but there are also marked differences. This fact is mentioned only to relate that this decision is based on those facts brought out in this trial and no others. As mentioned above, I am sure there are those who earnestly believe that matters such as this should not be the subject of court decisions. Plaintiffs have claimed that they and the class of persons whom they represent have been denied the equal protection of the laws by defendants — thus, a constitutional issue is presented to the Court. Counsel for the Columbus defendants and for the State of Ohio defendants do not dispute the Court’s jurisdiction. However, as I view it, the real reason that courts are in the school desegregation business is the failure of other governmental entities to confront and produce answers to the many problems in this area pursuant to the law of the United States. This Court is quick to admit that the litigation model is not the most efficient way to solve problems of far-reaching social impact, but our courts must always protect the constitutional rights of all our citizens. Therefore, this Court in this case has done its best to find the facts and make reasonable conclusions. If my conclusions are in error, the error will be easy for those who review to discern. It is my duty as a judge of this Court to follow the law — and likewise it now is the duty of the citizens of this community to follow this decision so long as it is the law. B. PROCEDURAL HISTORY OF THIS CASE The Court has jurisdiction of the issues pursuant to 28 U.S.C. §§ 1331(a) and 1343(3) and (4). The civil rights claimed to have been violated are those secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The parties at the trial of this case are as follows and will be so identified in these findings and conclusions: Intervening Plaintiffs. The intervening plaintiffs are 11 students attending schools in the Columbus Public Schools and their parents, representing a class of persons similarly situated. This plaintiff group was permitted to intervene in March, 1975. It is represented by counsel associated with the national office of the National Association for the Advancement of Colored People, one of whom was designated as lead counsel for all plaintiffs by order of the Court. The intervening plaintiffs are sometimes also referred to herein as the “intervenors” or the “plaintiffs.” Original Plaintiffs. The original plaintiffs are 14 students in the Columbus Public Schools and their parents, representing a class of persons similarly situated. This action was originally filed on behalf of these students and parents. Following the intervention and the designation of lead counsel, the original plaintiffs and their counsel presented evidence at trial on certain issues that they believed were not included within the case presented by the intervening plaintiffs. Columbus Defendants. The Columbus Board of Education, its seven elected members, and Dr. John Ellis, Superintendent of the Columbus Public Schools, are collectively referred to herein as the Columbus defendants. State Defendants. The State Board of Education, State Superintendent of Public Instruction Dr. Martin Essex, Governor James A. Rhodes, and Attorney General William J. Brown are also named defendants. For ease of reference the “State defendants” will refer to all four of these defendants. The case was filed on June 21, 1973, by Gary L. Penick and 13 other named children (or their parents) who are students in the Columbus school system. These plaintiffs claimed that 89.5 million dollars earmarked for school construction had to be expended in such a manner as to require the Columbus defendants to carry out affirmative action to guarantee integrated educational experiences. Looking to the Board’s resolutions germane to the bond issue from which the construction funds were generated, plaintiffs alleged that those resolutions, the United States Constitution, and a claimed Board reluctance to abide the requirements of its resolutions in their construction planning processes entitled plaintiffs to declaratory and other equitable relief. On October 9,1973, the original plaintiffs moved for a preliminary injunction to stop the construction program. The motion was heard by Judge Carl B. Rubin of this Court on April 15 and 17, 1974. At the time of the hearing, only the original plaintiffs and the Columbus defendants were parties, the Court having previously dismissed the State defendants upon the plaintiffs’ own motion. After presenting evidence but before resting, the plaintiffs moved to withdraw their motion and sought leave to file an amended complaint. The Court permitted the withdrawal and amendment. The original plaintiffs filed their amended complaint on July 19,1974, renaming the State defendants and adding the Franklin County Recorder as a defendant. A second amended complaint was filed on October 22, 1974. The second amended complaint was styled as a class action. It alleged that the Columbus defendants had intentionally segregated the public schools by creating and maintaining a neighborhood school policy notwithstanding a segregated housing pattern in the city. The new school construction program was claimed to further segregation. The original plaintiffs also claimed that the Columbus defendants had segregated the schools by using optional attendance areas, by segregating teachers and principals, by failing to desegregate, and by conspiring with the County Recorder to violate the Fair Housing Law of 1968. The State defendants were alleged to be liable for failing to bring about the desegregation of the Columbus schools. The plaintiffs sought an order requiring desegregation of the Columbus Public Schools. The motion to intervene was filed on February 5, 1975, by NAACP lawyers on behalf of 11 students in the Columbus Public Schools. The applicants for intervention sought permission to file their complaint in intervention, to have the case certified as a class action, and to have them designated as representatives of the class. The complaint in intervention named the Columbus and State defendants, as well as the Franklin County Recorder, who was subsequently dismissed. The complaint in intervention was essentially the same as the second amended complaint. The intervening plaintiffs sought an order requiring the defendants to develop and implement a “system-wide” plan of desegregation. Although the intervenors sought to represent the same class as the original plaintiffs, the Court granted intervention under Rule 24 of the Federal Rules of Civil Procedure on March 10,1975. Following a status conference with all counsel, the Court designated one of the attorneys for the intervenors as lead counsel for all plaintiffs. The trial commenced on April 19, 1976, and was completed on June 17, 1976, after 36 trial days. The record is extensive. Over 70 witnesses were heard and over 600 exhibits were admitted. The trial transcript is in excess of 6600 pages. The Court heard the closing arguments of counsel on September 3, 1976. II. PRE-1954 HISTORY OF THE COLUMBUS PUBLIC SCHOOLS As a necessary starting point, a backward look at the Columbus school district from May 17, 1954, when the Supreme Court of the United States decided the case Brown v. Board of Education (“Brown I”), 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, is required. It is essential that one know the 1954 racial picture of the system — whether it was unitary (no unlawful racial segregation) or dual (unlawful racial separation), and how it became what it was. This visit with the history of the system is neither for the purpose of dragging out skeletons of the past nor a vindictive finger-pointing exercise. In many respects litigation in court is a matter of hindsight. Perhaps given the present requirements of law, some public officials might have pursued their duties differently — perhaps others would not have. However, this look to the past must be made to discover whether past acts or omissions are in any degree responsible for the admitted current racial imbalance in the Columbus schools. Prior to 1871, the evidence indicates not only a complete separation of the races in the Columbus school system, but also repeated demands by black citizens for adequate schools for black children. In 1871 the Supreme Court of Ohio decided the case State ex rel. Garnes v. McCann, 21 Ohio St. 198. In that case, a black parent challenged an Ohio statute which “authorized and required” all the boards of education in the state “to establish, within their respective jurisdictions, one or more separate schools for colored children, when the whole number, by enumeration, exceeds twenty. . . ” The statute is quoted in the Supreme Court’s opinion, 21 Ohio St. at 206. Recognizing that blacks in the post-Civil War era were entitled to protection under the Fourteenth Amendment to the United States Constitution, the Supreme Court of Ohio nevertheless held that the statute providing for separate schools for black children affronted neither the United States nor the Ohio Constitution. Thereafter, in 1878, the General Assembly of Ohio enacted House Bill No. 105, 75 Ohio L. 513, which provided that “where in their judgment it may be for the advantage of the district to do so, [local boards of education] may organize separate schools for colored children. . . . ” This statute in turn was repealed in 1887, 84 Ohio L. 34. In passing on the state of the law effective in 1888, the Supreme Court of Ohio held that Boards of Education could not maintain separate schools for black and white students. Board of Education v. State, 45 Ohio St. 555, 16 N.E. 373 (1888). It was 1878 before the first black person graduated from high school in Columbus. In that year all black children attended Loving School at the corner of Long and Third Streets, many passing closer white schools en route. In 1879 a very few blacks attended Second Avenue, Douglas and East Friend schools. However, with only these few exceptions, blacks attended Loving School. In 1881 by resolution the Columbus Board abolished separate schools for black children. Children were assigned to attend school in districts where they dwelt. Miss Celia Davis, a black woman, taught at the racially mixed Medary school in 1897. Several other blacks taught in mixed schools during the period 1900-1907. The Columbus Board of Education caused the Champion Avenue School to be built in 1909.- The school, located in a predominantly black residential district, was staffed with all black teachers. In August, 1909, Charles W. Smith, a black parent, sued the Columbus Board of Education in the Common Pleas Court of Franklin County, alleging that the Board’s action establishing Champion as a black school was illegal under Ohio law. The Court of Common Pleas heard evidence, and on March 11, 1911, dismissed the case. Mr. Smith appealed the dismissal, and on December 31, 1912, the Circuit Court of Franklin County in Case No. 3094 affirmed the trial court’s action. On January 6, 1913, Dr. William O. Thompson, one of the members of the Columbus Board of Education, reported to the Board that the Circuit Court had “affirmed the opinion of Judge Rogers, and further held that the creation of a school district is a matter of the discretion of the Board of Education, and not a subject for judicial determination, and dismissed the appeal.” Apparently the trend earlier established toward integration then halted in Columbus. During the 1920’s and early 1930’s Champion remained a school populated by black students with predominantly black faculty, and a black principal. Although some secondary and elementary schools were attended by both races, all of the black teachers employed in the system were at Champion. In 1938 Pilgrim Junior High, which had been a racially mixed school, was converted to an elementary school. Champion’s then all-black elementary faculty was transferred to Pilgrim, and Champion became a junior high school with a black faculty and black students. The school attendance areas were gerrymandered so that white students who lived very near Pilgrim School were permitted to attend Fair Avenue School, which was considerably more distant from their houses on Greenway and Taylor Avenues. While children who lived on those streets had attended Pilgrim before it was converted to an elementary school for black children. In 1941 all black teachers in the system were employed at Mt. Vernon, Garfield, Pilgrim or Champion Schools, all predominantly black schools. By 1943 five schools were attended almost exclusively by black children, and the faculties of each were composed entirely of black teachers. In September of that year the entire professional staff of Felton School, composed of 13 teachers and a principal, was removed and replaced with 14 black persons. The same kind of 100% white to 100% black faculty transfer had occurred at the Mt. Vernon and Garfield schools in prior years. In September, 1943, the Vanguard League, a civil rights organization, complained to the Columbus Board about gerrymandering as follows: A more striking example of such gerrymandering is Taylor and Woodland Avenues between Long Street and Greenway. Here we find the school districts skipping about as capriciously as a young child at play. The west side of Taylor Avenue (colored residents) is in Pilgrim elementary district and Champion for Junior High. The east side of Taylor (white families) is in Fair Avenue elementary district and Franklin for Junior High. Both sides of Woodland Avenue between Long and Greenway are occupied by white families and are, therefore, in the Fair Avenue-Franklin district. Both sides of this same street between 340 and 500 are occupied by colored families and are in the Pilgrim-Champion, or “colored” school, district. White families occupy the residences between 500 and 940, and, as would be expected, the “white” school district of Shepard-Franklin applies. When Brown I was decided in 1954, there were no black high school principals in Columbus. All black administrators were assigned to predominantly black schools. There were no white principals in predominantly black schools. Under the policy and practice of the Columbus defendants’ predecessors, black student teachers were required to do their student teaching at predominantly black schools. Giving full recognition to substantial racial mixing of both students and faculty in some schools, the Columbus school system cannot reasonably be said to have been a racially neutral system on May 17, 1954. The then-existing racial separation was the direct result of cognitive acts or omissions of those school board members and administrators who had originally intentionally caused and later perpetuated the racial isolation, in the east area of the district, of black children and faculty at Champion, Mt. Vernon, Garfield, Felton and Pilgrim. Thus, the Columbus Board of Education maintained what amounted to an enclave of separate, black schools on the near east side of Columbus, thereby depriving hundreds of black children an opportunity for an integrated educational experience. Defendants do not appear to assert that these results were an accommodation to the neighborhood school concept. In the Court’s view, in 1954 the Columbus defendants’ predecessors had caused some black children to be educated in schools that were predominantly white; however, the Board also deliberately caused at least five schools to be overwhelmingly black schools, while drawing some attendance zones to allow white students to avoid these black schools. This separateness cannot be said to have been the result of racially neutral official acts. As a result, in 1954 there was not a unitary school system in Columbus. Over 20 years passed between the decision in Brown I and the filing of the second amended complaint in this case. It is necessary now to examine the actions and omissions of the Columbus Board of Education during these decades. III. POST-1954 HISTORY OF THE COLUMBUS PUBLIC SCHOOLS A. AN OVERVIEW I agree with the Columbus defendants that “it would be impossible to properly consider the record without beginning with a review of the tremendous growth that has characterized the entire community of Columbus, Ohio, and the Columbus Public School System in particular, over the past 25 years.” From 1950 to 1960 the population of Columbus increased by 95,000 persons while the city more than doubled its land area; in the 1960’s, with an aggressive annexation policy, the population increased by over 68,000 persons. The following table illustrates the population growth since 1940: Columbus, Ohio Population 1940-1970 Census Year Total Population Increase Since Prior Census Increase Since Prior Census 1940 303,087 15,523 5.3% 1950 375,901 69,814 22.8% 1960 471,316 95,414 25.4% 1970 539,677 68,361 14.5% Columbus grew from about 40 square miles in 1950 to over 173 square miles in 1975 as a result of 466 separate annexations. Concomitant with the increase in population and land area was a marked rise in the population of the Columbus Public Schools. The enrollment increased from 46,352 in 1950-51 to 83,631 in 1960-61. The growth continued in the 1960’s, reaching over 110,000 by the end of the decade. After attaining a high of 110,725, the total declined to 95,998 in 1975-76. Obviously the rapid growth demanded new school facilities and placed pressures upon the school officials seeking to provide quality school facilities for the expanding enrollments in a continually enlarging geographical area. A closer view of the nature of the population growth shows the dramatic increase of black Columbus residents. In 1940, 11.7% of the population was black. During the next 30 years, the black population almost tripled; in 1970, 18.5% of the total population was black. This growth was reflected in the composition of the public school population. In 1970, 29% of the enrollment was black, as compared to the city’s overall 18.5% black population. It is clearly apparent to the Court that there is residential segregation in Columbus. On this point, plaintiffs and the Columbus defendants are in agreement. In 1970, 71% of all blacks lived within 23 contiguous census tracts. Although census base maps received in evidence at trial give some aid in the identification of the racial composition of particular census tracts, one cannot view them as accurately descriptive of the racial characteristics of any tract in any years intervening the compilation of census data. This is particularly so in those cases where maps were color-coded reflecting racial composition without reference to the density of the total population. There are instances of large color-coded areas where few people live. For example, the Columbus State Hospital’s assigned color code is of graphic significance but concerns an area of low population density. The census base maps, however, do provide a reasonable basis for my finding that from 1959 through 1970, the heaviest concentration of black residents of Columbus has been in contiguous areas which have spread from the central area of the city to the east, northeast, and to a lesser degree to the southeast. It is true that the Columbus Board of Education had to be seriously concerned not only with accommodating the increase in the numbers of children to be educated, but also with upgrading and expanding its educational program. Improvements and programs, such as reduced class size, library leaning centers, and special and vocational education, all reduced school capacity or required entirely new facilities. Actually, in 1949 the Columbus school plant was inadequate even for the 44,531 students then enrolled. In 1950, pursuant to a request of the then Columbus school superintendent, the Bureau of Educational Research at The Ohio State University began a comprehensive, scientific and objective analysis of the school plant needs of the school system. The Bureau studied and reported on community growth characteristics, educational programs, enrollment projections, the system’s plan of organization, the existing plant, and the financial ability of the community to pay for new school facilities. Thereafter, a number of general and specific recommendations were made to the Columbus Board by the Bureau. The recommendations included the size and location of new school sites as well as additions to existing sites. The recommendations were conceived to accommodate the so-called “community or neighborhood school concept.” The 1950 concept was related to a distance criteria grounded on walking distance to schools as follows: % mile for elementary, IV2 miles for junior high and 2 miles for senior high students. The Board of Education adopted and relied upon the Bureau’s recommendations in proposing and encouraging the passage of bond issues in 1951, 1953, 1956, 1959 and 1964. School construction of new facilities and additions to existing structures were accomplished in substantial conformity with the Bureau’s periodic studies and recommendations. The rapid growth of Columbus also demanded a larger professional staff to serve the city’s schools. The numbers of black professionals employed by the Columbus Board has increased since 1969 from 632 or 11.8% of the total number of 5,349, to a 1975 high of 926 or 17.5% of a total 5,298. In 1951 a cadet principal program was begun. In 1972 27 persons were selected as cadet principals; 13 of them were black. Since 1969, 44 of the 100 cadet appointments have been black teachers. In the last five years the number of black administrators assigned has increased from 44 to 69, a 56.8% increase during that time. However, in 1954 there still were no black high school principals in Columbus, and by 1956 there still were no black administrators in any but the black schools, and no white principals in the black schools. Although the number of black administrators at majority white schools increased from only four in 1971 to fourteen in 1975, the number remains proportionately low. Between 1964 and 1973 the Columbus defendants generally maintained their prior practice of assigning black teachers to those schools with substantial black student populations. As an example, as late as the 1972-73 school year, there were 250 black elementary teachers assigned to schools in which the student body was 80-100% black, which represented 63.3% of all of the black elementary teachers in the system. In the same school year, 34 elementary schools, all of which contained 80-100% white student bodies, had no black teachers assigned to them. In July, 1974 the Columbus defendants consummated a conciliation agreement with the Ohio Civil Rights Commission after a complaint had been filed by the Columbus Area Civil Rights Council alleging faculty racial segregation. The agreement included the following language: The Plan will also insure that the experienced teachers and teachers with advance training and degrees shall be reasonably distributed throughout the school system. To the degree possible, the goals established in this plan shall be accomplished by September 1973 through a process of voluntary transfers and selective assignments of new professional staff members. Such a process shall be supplemented by required assignments of present professional staff members, as needed, . (Emphasis added.) Of special note here is Section 5 of the plan which read: The assignment and transfer of professional members to and from schools where the average training and experience of professional staff members is significantly below the system average shall be made so that this differential is reduced or as a minimum not significantly increased. (Emphasis added.) It is true, as plaintiffs claim, that the Columbus defendants were not at the time of trial 100% in conformity with the agreement. The Court believes that the failure to completely comply with the strict letter of the requirements of the agreement does not represent a substantial factual matter helpful in the resolution of the issues in this case. In 1965 the Columbus Board created the Council on Intercultural Education to obtain advice and suggestions on racial matters involving the schools. In August, 1966 the local chapter of the NAACP presented a position paper to the Council protesting that unconstitutional school segregation was abroad in the Columbus schools and suggesting procedures for desegregation. In May, 1967 the Columbus Urban League called for the integration of the school system and suggested how it could be accomplished. The Columbus Board in 1967 officially adopted a policy to take racial balance into consideration in drawing attendance zones. In addition the Columbus Board adopted a voluntary transfer program to improve racial balances. Under a plan as adopted, students were eligible to transfer schools if the transfer resulted in better racial distribution at each school; no transportation was provided. This plan existed for six years, and had little integrative impact on the school system. In 1969 the voters defeated a $75,950,000 school bond issue. In 1971 a representative committee was formed under the name Project UNITE to study the needs of the school system. A sub-committee of that group identified specific facility needs and made recommendations to the Board of Education. A November 1972 bond issue was approved by the voters. Included in the promised proposed construction program was a commitment to giving each student the opportunity for integrated educational experiences through the use of new special, magnet-type developmental learning centers, district-wide career centers, special programs to attract students from other schools, and a commitment to locate new buildings whenever possible to favor integration without resorting to unreasonable gerrymandering. But see the discussion concerning the Innis Road and Cassady Elementary schools in Part B of this section. Perhaps best descriptive of the philosophy of the Columbus Board is its July 18, 1972, officially-adopted formal goal statement on integrated education: It shall be the goal and the policy of the Columbus Public Schools to prepare every student for life in an integrated society by giving each student the opportunity of integrated educational experiences. Such a goal does not imply the mandatory or forced transportation of students to achieve a racial balance in any or all schools. The Superintendent of Schools shall implement this policy by the development of proposals for the approval of the Board of Education. The first priority of the Superintendent shall be the development of a plan to provide the transportation necessary to give all students access to vocational and career facilities and all special programs or courses offered by the Columbus Public Schools. In late November, 1972 the Columbus Board voted down a resolution which would have established a site selection advisory committee to assist the Board in preventing new schools from being built on sites which would result in racially identifiable new schools. Likewise, on May 1, 1973, the Columbus Board rejected a motion that it seek the assistance of the State Department of Education in obtaining financial and technical assistance to desegregate the schools. By vote this Board also decided not to request federal funds with which to desegregate. On September 3, 1974, the Board passed a resolution providing that the Superintendent devise a more effective means of making available more integrated educational opportunities by September 1, 1975. In April, 1973 the Columbus Board formally adopted the “Columbus Plan.” The first version provided for four types of student transfers: racial balance, vocational program, educational program, and occupational program. Only since 1975 has the Board provided transportation for the full-day racial balance transfers. In the 1975-76 school year, 3,612 students participated in Columbus Plan transfers; of these, 584 full-day transfers were for racial balance. Even more voluntary participation was expected in 1976-77. In the school year 1975-76 four alternative or magnet schools were in operation. Two more will be open in 1976-77. Four new career centers, which hopefully will have an integrative effect, will be fully operational by 1977, involving about 4,000 students. Integrated study trips, all-city activity and exchange activity all have been engaged in and encouraged in an effort to provide positive integrated experiences. Nevertheless during the 1975-76 school year, when this case was tried, 70.4% of all the students in the Columbus Public Schools attended schools which were 80-100% populated by either black or white students; 73.3% of the black administrators were assigned to schools with 70-100% black student bodies; and 95.7% of the 92 schools which were 80-100% white had no black administrators assigned to them. B. SPECIFIC ACTIONS — POST-1954 In deciding the issues of the case, a close review of the racial composition over the years of the Columbus School system is helpful. Since the Department of Health, Education and Welfare began to require that racial statistics be submitted, a rather accurate appraisal of the racial character of the schools can be made. For those years when no such data were kept, the numbers of students of one race or another cannot accurately be determined; however, a hindsight review of other social statistics provides a basis to make reasonable inferences as to the probable racial composition of the schools for those years. In making the analysis that follows, the Court has not forgotten the truism that the mere presence of racial imbalance in the make-up of school student bodies, without more, will not permit a finding of unconstitutional segregation. To analyze the mass of statistical evidence received at trial, it is necessary for the Court to establish a frame of reference. Plaintiffs’ expert witness, Dr. Gordon Foster, used statistical criteria in terming a school “racially identifiable.” Using actual or estimated racial statistics concerning the black student enrollment in the total Columbus school system, he applied a statistical variance formula (plus or minus a specific percentage point range, chosen by reference to the relative size of the overall black student enrollment in a given time period) to the system-wide average to establish a rough yardstick for determining whether the percentage of black student enrollment in particular schools was within the general range of the system-wide average. See the definition of “racially identifiable” in the glossary in the appendix to this opinion. For the period of 1950 to 1957, he estimated the black student enrollment to be approximately 15% of the total enrollment. Because of the small percentage of blacks in the system as a whole, the measure of racial identifiability he adopted was plus or minus 5%. In 1957, he used an estimate of 20% non-white population and a range of plus or minus 10%. In 1964, he used an estimate of 25% non-white and 26.6% non-white at the secondary level and a range of plus or minus 15%. In 1975, he used the actual racial percentage of 32.5% non-white and a plus or minus 15% range. Dr. Foster testified that whenever there was a close situation, he called the school racially unidentifiable. The Court notes the necessity for using the smaller range when the percentage of black pupils was at a low level in the system. Similar ranges have been used by some courts as a rough gauge for measuring the racial identifiability of schools. There is ample evidence to support the use of such ranges and the evidence indicates that Dr. Foster’s estimates are reasonable. Based upon the law as it is set out in Part IV of this opinion, I am constrained, from certain facts which I believe to be proved, to draw the inference of segregative intent from the Columbus defendants’ failures, after notice, to consider predictable racial consequences of their acts and omissions when alternatives were available which would have eliminated or lessened racial imbalance. And although defendants have contended that the Columbus Board of Education’s actions since 1954 have been racially neutral, the plaintiffs’ proofs included a number of Board actions which cannot reasonably be explained without reference to racial concerns. School Construction The area of site selection for school construction is a particularly difficult subject. Looking with hindsight on what was done, we must not only consider the effect of the Columbus defendants’ site selection decisions, but also ask what other steps could or should have been taken. Many factors must be considered in making site selections for new schools, including acquisition and construction costs, the present demography and projected development, the availability of services, accessibility, and public relations. It is rarely possible to isolate and identify any particular factors which were ultimately determinative in the selection of a site. The evidence does show that all of these factors were considered when the need for new school facilities arose and a site was selected. The evidence also shows that in many cases alternative site selections were suggested. Many of the probable consequences of particular alternatives were predictable and known to the Columbus defendants. The Columbus defendants have contended throughout that they have followed a neutral neighborhood school policy. In keeping with that policy, schools have generally been built in locations where the expanding and growing population demanded additional facilities. Of 103 schools constructed between 1950 and 1975, 87 opened with a racially identifiable student body according to the calculations of Dr. Foster. Of the 87 schools, three have been closed. These schools closed with racially identifiable student populations. Seventy-one of the 87 new schools remained racially identifiable at the time of trial. It is necessary for the Court to consider those foreseeable effects of the construction practice which promote or preserve a segregated school system. It is apparent to the Court, and presumably to the defendants, that schools which open with a racially identifiable student body tend to stay that way. The Court finds that in some instances initial site selection and boundary changes present integrative opportunities. The evidence supports a finding that the Columbus defendants could have reasonably foreseen the probable racial composition of schools to be constructed on a given site. In some instances the Columbus defendants had actual knowledge of the likelihood that some schools would open and remain racially identifiable if built on the proposed sites. One such case was Gladstone Elementary School. See map 1 in the appendix to this opinion. Although Gladstone was apparently opened in 1965, the first statistics available concerning its racial composition concern the year 1966, when it had a student population which was 78% black. Gladstone’s black enrollment has been in excess of 90% since 1967. Mr. Lumpkin, who later became the president of the Gladstone Parent Teacher Association, testified that prior to its construction he communicated to the Board of Education that Gladstone would predictably open as a predominantly black school. The 1960 census map shows that in that year the area in which Gladstone was eventually built was predominantly white. The 1970 census map indicates that this same area was predominantly black. This reflects the definite trend of an expanding black population northward into this area in the 1960’s. This trend was fairly well advanced in 1966, given Gladstone Elementary’s 78% black enrollment that year. Gladstone was built between Hamilton Elementary and Duxberry Park Elementary with the greater portion of the Gladstone attendance zone being drawn from the southwestern portion of the former Duxberry zone. This section of Duxberry had a higher black density than did the northern and eastern sections. Thus, the black student population in Duxberry dropped from 40% in 1965 to 33% in 1966. Linden Elementary, to the north of Hudson Street, remained virtually 100% white throughout the middle 1960’s. The construction of Gladstone south of Hamilton and Duxberry served to contain the black student population in the area south of Hudson Street. The need for greater school capacity in the general Duxberry area would have been logically accommodated by the construction of Gladstone north of its present location, nearer to Hudson Street. This would, of course, require some redrawing of boundary lines in order to accommodate the need for class space in Hamilton and Duxberry. If, however, the boundary lines had been drawn on a north-south pattern rather than an east-west pattern, as some suggested, the result would have been an integrative effect on Hamilton, Duxberry and the newly-constructed school. The Court also finds that the site selection and attendance zone boundaries for Sixth Avenue Elementary resulted in a foreseeably blacker school. Sixth Avenue opened as a primary center (grades K-3) in 1961 and closed in 1973. During this entire period, Sixth Avenue was racially identifiable with a black student population of at least 85%. The Sixth Avenue school was built in accordance with a recommendation contained in the 1958-59 study of the Public School Building Needs of Columbus, Ohio. Recommendation number 11 on page 58 of that document describes an area bounded by High Street on the west, Chittenden Avenue on the north, New York Central Railroad on the east, and Fifth Avenue on the south. Sixth Avenue elementary was built on the proposed site. The attendance zone for Sixth Avenue was as recommended, except that Fourth Street was its western boundary. This area can generally be described as the eastern portion of the Weinland Park Elementary attendance zone and the northeastern corner of the Second Avenue Elementary attendance zone. Both the 1960 and 1970 census maps (and the underlying statistical data) show that these portions of the former Weinland Park and Second Avenue Elementary attendance zones had the highest percentage of black residents within the area. The census data shows that the population west of Fourth Street was largely 0 to 27.9% black with two or three blocks being in the 28 to 49.9% range. The east side of Fourth Street is generally in the 50 to 89.9% black range, with several blocks in the 90 to 100% black category. The Sixth Avenue attendance zone consists almost entirely of 50 to 100% black population. The black population in the area left within the attendance zones of Weinland and Second after Sixth opened is generally below 27.9%, with a few blocks in the 28% to 49.9% range. In 1964, three years after Sixth Avenue opened and the first year for which racial statistics are available, Sixth Avenue had a black student enrollment of 91%. In that year Weinland Park and Second Avenue had black student populations of 30% and 28%, respectively. The boundary lines for these schools remained relatively unchanged until 1973, when Sixth Avenue closed. Sixth Avenue closed with a black enrollment of 94.6%. In that year Weinland Park and Second had black enrollments of 30.5% and 16.7%, respectively. In the 1974-75 school year following the closing of Sixth Avenue, the boundary lines for Weinland and Second were redrawn to resemble the 1960 attendance zones. With the closing of Sixth the black population of Weinland rose from 30.5% to 46.7% while Second Avenue rose from 16.7% to 20.7%. The Court finds that the construction site and attendance zone drawn for Sixth Avenue Elementary between 1961 and 1973 resulted in Sixth Avenue being the black school in the area while making Weinland Park and Second Avenue whiter. The impact of building a new elementary school at the Sixth Avenue location and drawing the attendance zone boundaries where they were drawn was clearly foreseeable to the Columbus defendants. Some students living in the area east of Fourth Avenue, shown to be predominantly black on both the 1960 and 1970 census maps, were compelled to walk to Sixth even though Weinland Park was closer to their homes. Even if the Court were to find compelling non-segregative reasons for the construction of this new school on its Sixth Avenue site, it is readily obvious from the census maps that the objectives of racial integration would have been better served, without abandoning the neighborhood school policy, by drawing the attendance zones east and west between High Street and the railroad tracks, rather than north and south along Fourth Street. The Columbus defendants have offered no explanation for the fashion in which Sixth Avenue was opened and maintained during this period. The Court is well aware of the Board’s obligation to provide class space as the need arises, whether it be in an area of expanding geographic growth, or within the inner-city area due to increasing population or the closing of obsolete structures. Given segregated residential patterns, not all schools can be built in an integrated setting. In such circumstances the selection of sites for new schools alone may not serve as a tool for integration. The intervening plaintiffs argue that the construction of a school in an area known to have been covered by racially restrictive covenants and subject to discriminatory real estate practices constitutes an impermissible participation by the school officials in racial discrimination. The Court does not infer segregative intent from the mere construction of schools in an area needing the facilities even though that area had been covered by racial covenants. Without the use of pairings, transportation, or other techniques, the racial imbalance in these schools could not have been cured by the siting of schools even had the Columbus defendants devoted their attention to the racial integration of the schools. The opportunity for active integration did exist, however, without the use of transportation, in some parts of the city. Even greater integration could have been achieved with the use of pairings and limited transportation. This opportunity existed, and continues to exist in those areas of the city where the population shifts from one race to another. An examination of the census maps for the years 1950, 1960 and 1970 discloses a general pattern of high density (50 to 100%) black population in the center of the city fringed by areas of lesser, but still substantial, (10 to 50%) black population. The remainder of the city is predominantly white, although there are pockets of white population within the central city area, and pockets of black population in the outlying areas. The Columbus defendants argue that housing in the City of Columbus is segregated as a result of private discrimination and other factors affecting residential development over which the school board has no control and little influence. The Columbus defendants maintain that they have adopted a racially neutral neighborhood school policy. They contend that the use of a neighborhood school policy in a city with segregated housing patterns results, through no fault of the school authorities, in racially imbalanced schools. Under the neighborhood school policy, the site selected for a new school limits the attendance zone boundaries that can be drawn for that school. The evidence shows that in some instances the need for school facilities could have been met in a manner having an integrative rather than a segregative effect. The Near-Bexley Option East of the downtown area of Columbus and entirely surrounded by the Columbus city limits, lies the City of Bexley, Ohio. East of Bexley, and also entirely surrounded by the Columbus city limits, is the City of Whitehall, Ohio. With the exception of one small area of Columbus which jumps across Alum Creek to the eastern side of the creek, the western boundary of Bexley follows the course of Alum Creek. The Columbus residential area to the west of Alum Creek was in 1960 and 1970, according to census data, heavily populated by blacks. For that area in those years, census tracts generally appear as either 50-89% black or 90-100% black. A different picture existed for the area to the east of Alum Creek, encompassing the City of Bexley and the small portion of Columbus which lies immediately east of the creek. According to census data, 99% of Bexley residents were white in 1960, and 99.3% were white in 1970. Census data further indicate that in 1960 there were 159 people residing in that area of Columbus which lies immediately east of Alum Creek; all of these people were white. From the 1959-60 school year through the 1974-75 school year, the Columbus Board of Education established and maintained an optional attendance zone encompassing the area of Columbus which lies directly east of Alum Creek. Students living in that area were within the attendance areas of schools located to the west of Alum Creek, nearer the Columbus downtown area. This 1959-1975 option permitted these students to elect to attend Columbus city schools located to,the east of the City of Bexley. For ease of reference, the Court will refer to this option as the “Near-Bexley Option.” Absent the Near-Bexley Option, students living in the optional zone area would have been required to attend Fair Avenue Elementary (opened in 1890), Franklin Junior High School (opened in 1898) and East Senior High School (opened in 1922). The following statistics are applicable to these near-east side schools: 1964 1969 1974 Fair Avenue Elem. % black students 92.0 95.0 96.7 % black faculty 83.3 37.1 23.3 Franklin Jr. H.S. % black students 85.8 96.3 93.7 % black faculty 32.6 34.6 45.8 East Sr. H.S. % black students 94.9 98.9 98.9 % black faculty 12.7 28.9 31.3 The schools on the receiving end of the option were Fairmoor Elementary (opened in 1950), Eastmoor Junior High School (opened in 1962) and Johnson Park Junior High School (opened in 1958), and Eastmoor Senior High School (opened in 1955). The following statistics are applicable to these schools: 1964 1969 1974 Fairmoor Elem. % black students 0.1 0.9 4.6 % black faculty 0 4.0 18.2 Eastmoor Jr. H.S. % black students 30.5 34.4 45.3 % black faculty 0 9.8 15.2 Johnson Park Jr. H.S. % black students 0.3 2.9 26.7 % black faculty 0 2.0 12.7 Eastmoor Sr. H.S. % black students 10.6 17.8 34.9 % black faculty 0 4.0 15.2 Eastmoor Junior High School was a receiving school for the Near-Bexley Option during the 1959-60, 1960-61, and 1963-64 through 1974-75 school years. Johnson Park was a receiving school for the option during only the 1961-62 and 1962-63 school years; there are no racial statistics available for Johnson Park Junior High School for these two years. The 1960 census data indicate that the Johnson Park attendance area was predominantly white at that time. The Near-Bexley Option, then, concerned a small, white enclave on Columbus’ predominantly black near-east side. The option area, although part of Columbus, had more in common, geographically and racially, with Bexley than with Columbus. In practical effect, the Near-Bexley Option permitted white students in the optional zone to escape attendance at black Fair Avenue Elementary, Franklin Junior and East Senior High Schools, and permitted them instead to attend white (or whiter) Fairmoor Elementary, Eastmoor Junior or Johnson Park Junior, and Eastmoor Senior High Schools. And, as an examination of maps 2, 3, and 4 in the appendix demonstrates, to exercise the option Columbus students had to traverse the City of Bexley to arrive at the option schools. Nothing presented by the Columbus defendants at trial, at closing arguments, or in their briefs convinces the Court that the Near-Bexley Option was created or maintained for racially neutral reasons. The Court finds that the option was not created and maintained because of overcrowding or geographical barriers. These defendants contend that the option involved only a few students. The July 10, 1972, minutes of the State Board of Education, at page 44, appear to indicate that in 1972, there were 25 public elementary school students and two public high school students residing in the optional zone. However, the fact that the option was created, and maintained by the Columbus Board of Education for some 16 school years, is of itself some evidence that the option was not merely a paper exercise. The Court is not so concerned with the numbers of students who exercised or could have exercised this option, as it is with the light that the creation and maintenance of the option sheds upon the intent of the Columbus Board of Education. It is noteworthy that the July 10, 1972, minutes of the State Board of Education indicate awareness by the State Board that a proposed transfer of the Near-Bexley Option area to the Bexley school district “[r]aises the question of percentage of racial mix.” (The proposed transfer was opposed by the Columbus Board of Education, and was denied by the State Board.) Quite frankly, the Near-Bexley Option appears to this Court to be a classic example of a segregative device designed to permit white students to escape attendance at predominantly black schools. Highland, West Mound and West Broad Elementary Optional Zones and Boundary Changes Another area illustrative of action by the Board promoting racially segregated schools is on the west side of Columbus. Four elementary schools are involved: Burroughs, Highland, West Broad and West Mound. The census data for the years 1950, 1960 and 1970 show an area of black population between West Broad Street and Sullivant Avenue bounded on the west by Eureka Avenue and on the east by the Columbus State Institute. This area is referred to locally as the Hilltop. The western portion of this area fell mostly in the 50% to 100% black range. The eastern portion, between Belvidere and the Columbus State Institute, was in the 0 to 9.9% black range in 1950 and has become increasingly blacker in later years. The 1970 census data shows this area to have several blocks in each of the ranges of 10 to 27.9%, 28 to 59.9% and 60 to 89.9% black. Highland Elementary has served the majority of this area between 1950 and the present. During this period the Columbus defendants established two optional attendance zones within the Highland boundaries, and also changed the attendance zone boundaries of Highland. Although the opportunity existed for the integration of the four elementary schools in this area, the option zones and boundary changes tended to preserve and promote the racial imbalance of these schools. One optional zone appeared in 1955 and continued through the 1956-57 school year. See map 5 in the appendix. In those years, and since 1939, the Highland attendance zone included an area north of West Broad Street to the Pennsylvania Railroad tracks bounded on the west by Eldon Avenue and on the east by the Columbus State Hospital. This portion of Highland north of Broad Street was composed in each of the census years, 1950,1960 and 1970 of blocks in the 0 to 9.9% black range, as was the entire West Broad attendance zone. For the school years 1955-56 and 1956-57 that portion of Highland north of Broad was made into an optional attendance area with students having the option of attending the predominantly white West Broad or the predominantly black Highland. Highland was 63 students over capacity in 1955, and 67 students over capacity in 1956. West Broad, however, was also over capacity in 1955 and 1956 by 115 and 113 students, respectively. An examination of the attendance zones in the West Broad Street area reveals that several required students to cross this street to reach their school. The Court concludes that the Highland-West Broad optional zone was not created to alleviate overcrowding or because of a geographic barrier. This optional zone allowed the white students north of Broad Street to escape Highland and go to West Broad. The result was to contain blacks within Highland and to maintain West Broad as a predominantly white school. In 1957 the boundary lines for Highland and West Broad were redrawn, eliminating the option zone and placing that area permanently within the West Broad attendance zone. Because West Broad’s capacity problems were greater than those of Highland, a purpose of the boundary change could not have been to alleviate the overcrowding at Highland. Since the West Broad attendance zone dipped south of Broad Street west of the Highland zone, the Court concludes that West Broad Street was not considered a geographical barrier in the decision to redraw these boundaries. In 1964, the first year in which the racial statistics for enrollment are available, Highland had a black student enrollment of 75%. West Broad Street was 100% white in 1964. The Court finds that the optional attendance zone and boundary changes between Highland and West Broad had a foreseeable and actual effect of promoting racial imbalance. Another optional attendance zone was created within the Highland boundaries in 1955. This optional zone was in the southeastern corner of Highland and gave the students living there the option of attending either Highland or West Mound Street. See map 5 in the appendix. This option continued through the 1960-61 school year. The census data for 1950 shows that the West Mound Street attendance zone was, with the exception of one block, within the range of 0 to 9.9% black. The remaining block was in the 10 to 27.9% black category. In 1960 the West Mound attendance area was still largely in the 0 to 9.9% black range with four blocks in the 10 to 27.9% category and one block in the 28 to 49.9% range. The option area east of Wrexham and south of Doren was in the 0 to 9.9% black range in the 1950 census. In the 1960 census the option area continued to be predominantly white with a small portion falling in the 10 to 27.9% black range. The effect of the Highland-West Mound option was to allow those students living in the whiter portion of the Highland attendance zone to opt out of attendance at identifiably black Highland in favor of the whiter West Mound Street School. The defendants contend that this optional zone was created to alleviate overcrowding in Highland. During the option years Highland was over capacity and West Mound Street was under capacity ranging from four students below capacity in 1957 to 105 in 1960. The effect of the option on the overcrowding at Highland was the foreseeable result that the white students within the option zone would exercise the option to attend West Mound. Thus, even though an option zone may have eased the capacity problem, this particular option zone tended to make Highland blacker and West Mound whiter. In 1961 the option was terminated and the greater part of the option area was rezoned permanently to West Mound Street. The intervening plaintiffs have shown that feasible alternatives were available and known to the Columbus defendants. One of these alternatives was to move the option area to the west, or make the boundary changes west of where they were made. This alternative would have allowed students from the blacker part of the Highland attendance area to attend West Mound, thus having an integrative effect on West Mound while easing the overcrowding at Highland. Another alternative would require redrawing the attendance zones in this area for Highland, West Mound, West Broad, and Burroughs. Dr. Foster testified that the total capacity of these four schools was 3,060 at the time of trial and the enrollment was 2,773. The following statistics are applicable to these schools: Burroughs 1964 1969 1974 % black students 16 14.6 12.5 % black faculty 0 3.1 18.5 Highland % black students 75 71.7 72.7 % black faculty 4.6 22.6 16.7 West Mound % black students 15 16.1 16.5 % black faculty 0 7.7 17.4 West Broad % black students 0.7 1.0 % black faculty 3.0 12.1 The racial balance at all four schools could have been enhanced by redrawing the attendance zones for these four schools through the Hilltop area. This could also be achieved by pairing. The Court finds each of these alternatives to be feasible and there has been no showing that they are unsound as a matter of academic administration. The Court concludes that the actions