Full opinion text
OPINION FOX, Chief Judge. This school desegregation suit was commenced in 1972 to determine whether the Lansing Board of Education violated the constitutional rights of the district’s schoolchildren by denying them equal educational opportunity on the basis of race. The court recognizes that the issues involved are of particular interest and vital significance to all Lansing area citizens. Therefore, this opinion is aimed at communicating the factual and legal bases for the court’s decision, not only to the parties and reviewing courts, but also to the community. For it is the hope of the court that a sincere civic involvement in implementing the terms of this decision will help improve the school system and strengthen the community, for citizens of all races, and for their children. The jurisdiction of this court is properly invoked under 28 U.S.C. Sections 1331(a), 1343(3), and (4), this being a suit in equity authorized by 42 U.S.C. Sections 1983, 1988 and 2000d. Jurisdiction is also invoked under 42 U.S.C. Section 1981 and further invoked under 28 U.S.C. Sections 2201 and 2202, this being a suit seeking a declaration that the February 1, 1973 resolutions of the Lansing Board of Education are unconstitutional, and seeking also other relief. Individual plaintiffs are children or parents of children who, as a result of the June 29, 1972 desegregation plan adopted by the Lansing Board of Education, attend desegregated schools. Plaintiff, National Association for the Advancement of Colored People, Lansing Branch, is an unincorporated association which sues on behalf of its membership who are members of the plaintiff class. Plaintiffs are bringing this action on their own behalf and on behalf of all persons in the City of Lansing similarly situated. The class action is proper under Fed.R. Civ.P. 23. Because of the notoriety of the case in Lansing, the members of the plaintiffs’ class have adequate notice. The original and supplemental complaints alleged that actions of the Lansing Board of Education, especially the rescission of the June 29, 1972 desegregation plan (by its resolutions of February 1, 1973), were purposely taken to achieve segregative effects, in violation of the Thirteenth and Fourteenth Amendments to the United States Constitution, and the Michigan Constitution. Plaintiffs’ allegations that defendant has violated Michigan’s State Constitution may properly be entertained by this court under the doctrine of pendent jurisdiction. Following a full evidentiary hearing, the court issued a preliminary injunction on August 10, 1973, restraining the defendant Board of Education from implementing certain of its resolutions of February 1, 1973. The implementation of these resolutions would have effectively revised the Board’s formal Policy Statement on Equal Educational Opportunity and would have nullified the desegregation plan which was voluntarily adopted by the Board on June 29, 1972 and partially implemented by it beginning in September 1972. The issues presently before the court are whether this preliminary relief should be made permanent, and whether school board officials are responsible for segregative conditions in the Lansing school system requiring further remedial action. I. The essence of plaintiffs’ complaint in this case is an allegation of constitutional violations involving an inequity or inequality in public education deliberately created, maintained, and perpetuated by school officials. For reasons discussed in detail throughout this opinion, the court finds that the Lansing elementary schools have in fact been racially segregated and that these segregative conditions are being perpetuated even now. The court finds as a matter of demonstrable fact and established law that this condition of segregation resulted in inequitable and unequal educational opportunities for Black and White students. Educational inequity is a necessary consequence of racial discrimination in and separation of the schools. The reasons which explain this fact are complex, being intricately rooted in the tortured history of race relations of this nation. Over the years, Black experience has been unique in American history. No other racial or ethnic minority was systematically enslaved by the White majority. Rather than having suffered the temporary discomfort and annoyance of social ostracism common to first-generation European ethnic groups, Blacks for hundreds of years were subjected to legally and socially institutionalized economic, spiritual, psychological, social and educational deprivation. It is appropriate to note Gunnar Myrdal’s observation on slavery in his classic, An American Dilemma, in his chapter on “Inequality of Justice:” “Under slavery the Negro was owned, bought, and sold as property; he was worked, housed, fed, and prevented from doing what he wished if it was contrary to the interests of his master. In general, the Negro slave had no ‘rights’ which his owner was bound to respect. Even if in legal theory the slave was given the status of a person under the law as well as the status of property, it was the latter viewpoint which, in practice, became the determining one. In the very relationship between master and slave it was inherent that — without recourse to courts — force and bodily punishment and, under certain circumstances, even the killing of the slave was allowed. ‘. (A)ll slaveholders are under the shield of a perpetual license to murder,’ exclaimed Hinton R. Helper in his unsparing onslought on the plantation class and the slavery institution. Thomas Jefferson saw clearly the moral danger of the slavery institution: ‘The whole commerce between master and slave is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submissions on the other. Our children see this, and learn to imitate it. . The man must be a prodigy who can retain his manners and morals undepraved by such circumstances. And with what execration should the statesman be loaded, who, permitting one half the citizens to trample on the rights of the other, transforming those into despots, and these into enemies, destroys the morals of one part, and the amor patriae of the other. . . . [Can] the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God? That they are not to be violated but with His wrath? Indeed, I tremble for my country when I reflect that God is just; that His justice cannot sleep forever.’ ” (Emphasis supplied.) Unfortunately, White attitudes originally attendant to the institution of slavery persisted after the adoption of the Thirteenth Amendment. Although legal slavery died, Americans created, during the four decades after the Civil War, a new legal and social pattern of discrimination based upon race. Many of these forms of institutionalized repression have persisted to the present, with the result that Black Americans are often denied the equality to which they are entitled in our constitutional democratic republic. Inextricably intertwined with the dominating inescapable heritage of slavery and all its attendant dehumanizing ramifications, every aspect of the human condition of many Black people in America today is almost irremediably repressed. These continuing inhuman conditions of uncivilized servitude and inferior status have become known as vestiges of slavery. The effects of this historical status of subservience and formalized inferiority continued to be pervasive. Past barriers to personal fulfillment and attainment cannot reasonably be minimized in assessing current impediments to equal opportunity. In the context of past officially sanctioned and present subtly insidious and invidious private and public racial discrimination against Black people as a class, a school environment which for whatever reason involves marked, disproportionate racial concentration inherently generates acute consciousness of race. As situated in segregated surroundings, this inflated consciousness triggers artificial, unrealistic personal reactions based on misconceived but, in view of historical predicates, understandable individual perceptions of the significance of racial differences. Although disproportionate racial concentration of Black children in the schools might not have adverse consequences in all times and places, it certainly does in the context of the present forms of social organization, which are conditioned by legacy of slavery. One of the adverse effects of racial segregation is in the area of individual achievement. Segregated Black children tend to infer that they are isolated from the White majority because of their race, and, drawing on their observations of the deprivations experienced by Black adults, they also tend to infer that their own potential is limited because of their race. It is not surprising that Black children have evidenced reduced self-esteem in a segregated environment and concomitant diminished motivation to succeed. The culturally-induced lack of self-esteem and diminished motivation in turn operate to measurably reduce achievement. Individual growth in the educational system occurs not only in the area of achievement, the acquisition of cognitive skills, but also in the areas of social and psychological development. Segregation is perhaps more detrimental to the Black student’s social and psychological development than to his achievement level. Finding himself isolated to a significant degree from the bulk of the White population, witnessing the disparate superiority of the status of White adults over Black adults in many circumstances, and perhaps further observing a pronounced underrepresentation of Blacks in positions of leadership in his school, where this is the case, the Black child may become reluctant to assert himself in the presence of Whites and unduly pessimistic concerning his ability to interact or compete successfully with Whites of his own generation. Teacher reaction to segregated educational circumstances frequently operates to the disadvantage of students. Dubbed by some researchers as a kind of “self-fulfilling prophecy,” the impact on Black students of teacher expectations based on race has been demonstrated by several studies. Affected by racial stereotypes as well as by actual patterns of disparate Black-White performance levels in the general society, teachers may tend to “teach down” to Black children, expecting and therefore eliciting low levels of performance. The negative impact of racially segregated schools is not confined exclusively to Black students. White students may also react to racial isolation in ways harmful to themselves. White pupils are apt to form an irrational attitude of inherent superiority and are apt to develop an unrealistic concept of homogeneous society in which certain values enjoy universal acceptance. Similarly, because of their cultural isolation, segregated White children tend to lose sight of those fundamental values of our constitutional system which, while respecting individual differences, favor free access and wide social mobility to all persons regardless of race, creed, or national origin, and which thereby promote a healthy interchange among persons of different backgrounds. The state of mind fostered by racial and cultural isolation heightens racial conflicts and divisiveness in the country and thus adversely affects the domestic tranquility the Constitution was designed to promote. White students who have been educated in segregated public schools are thus ill-prepared to deal with the pluralistic society which actually exists in the adult world beyond the classroom. In part because of segregated schools, as Charles E. Silberman has written: “[T]he public schools are failing dismally in what has always been regarded as one of their primary tasks — in Horace Mann’s phrase, to be ‘the great equalizer of the conditions of men,’ facilitating the movement of the poor and disadvantaged into the mainstream of American economic and social life. Far from being ‘the great equalizer,’ the schools help perpetuate the differences in conditions, or at the very least, do little to reduce them. If the United States is to become a truly just and humane society, the schools will have to do an incomparably better job than they are now doing of educating youngsters from minority-group and lower-class homes’’. (Emphasis supplied.) The subject of race in America and the consequences of racial segregation in the schools might be explored at much greater length. However, it clearly appears that in the context of modern America, segregated education is detrimental to both Black and White students, creating, especially for Black students, psychological and social difficulties which have a substantial adverse impact on overall individual development. Segregated education plainly denies equal educational opportunity. The findings made by the court in this case parallel those made by the United States Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) [Brown I]. In addressing the precise issue of the effect of racial separation on grade and high school studénts the Supreme Court in Brown quoted with approval language from the District Court as follows: “ ‘Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of law; for the policy of separating the races is usually interpreted as denoting the inferiority of the Negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racially] integrated school system.” 347 U.S. at 494, 74 S.Ct. at 691. (Emphasis supplied.) Although much may be said about the fact that Brown involved obvious and conspicuous state action separating Blacks and Whites by statute, with respect to the simple issue of whether racial separation fundamentally poses a situation of inequity, Brown was and is unequivocal. “Separate educational facilities are inherently unequal.” 347 U.S. at 495, 74 S.Ct. at 692. II. The Fourteenth Amendment of the United States Constitution declares, “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” The law is clear that official action at any hierarchial level which denies the plaintiffs equal protection of the laws is unconstitutional. Ex parte Virginia, 100 U.S. 339, 346-347, 25 L.Ed. 676 (1880). It is established that “under the Constitution and laws of Michigan that the public school system is a State function and that local school districts are instrumentalities of the State created for administrative convenience.” Members of local school boards as well as members of the State Board of Education and the Superintendent of Public Instruction are State officers, agents of the State in every official respect. Before entering upon the duties of their respective offices, all are required by the Michigan Constitution of 1963, Art. II, Sec. 1, to take and subscribe to the following oath or affirmation: “I do solemnly swear (or affirm) that I will support the Constitution of the United States and the constitution of this state, and that I will faithfully discharge the duties of the office of . according to the best of my ability.” Each officer thus undertakes a personal and official responsibility to abide by the Constitution of the United States and of Michigan. The principal issue in this case is whether the defendant State officers have denied the plaintiffs equal protection of the laws. The Fifth Circuit, which has a vast experience with school desegregation cases, recently rejected “the anodyne dichotomy of classical de facto and de jure segregation.” Cisneros v. Corpus Christi Independent School District, 467 F.2d 142, 148 (5 Cir. 1972). That court held that a finding of unlawful segregation would be supported by two distinct factual determinations. “First, a denial of equal educational opportunity must be found to exist, defined as racial or ethnic segregation. Secondly, this segregation must be the result of state action.” While the specific quantity of state action and the severity of the segregation necessary to sustain a constitutional violation was left to be dealt with on a case by case basis, the court noted that, as a general rule, it “need only find a real and significant relationship, in terms of cause and effect, between state action and the denial of educational opportunity occasioned by the racial and ethnic separation of public school students.” Id. See Appendix C. However, the Supreme Court, in Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973), assumed for the purposes of that case that a finding of de jure segregation was required to support a finding of a constitutional violation. This court follows the Supreme Court for the purposes of the present case, and, like the Supreme Court, leaves for further adjudication in other cases the question of whether something other than de jure segregation constitutes a violation of the Fourteenth Amendment. As a first step toward resolving this issue, the court has had to ascertain the legal standards to be applied to determine whether the defendants have been guilty of de jure segregation. Although not as fully refined as the common law torts, the major legal elements and conditioning factors of the constitutional tort of de jure segregation are reasonably clear. “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.” Oliver, supra, footnote, 508 F.2d at 182. Ascertaining the Board’s intentions is certainly difficult, but it is not at all impossible. The starting place is the standards and processes evolved by the common law for determining the relevant state of mind of the defendant, or defendants, in an intentional tort suit. The Supreme Court and the Sixth Circuit Court of Appeals have said that one of the Congressional statutes relied upon by the plaintiffs in this case, 42 U.S.C. Section 1983, should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions. Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961); Pierson v. Ray, 386 U.S. 547, 556, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288 (1967); Puckett v. Cox, 456 F.2d 233, 235 (6th Cir. 1972); see Fitzke v. Shappell, 468 F.2d 1072 (6th Cir. 1972). In general, it is reasonable to infer that people intend the natural and probable consequences of acts knowingly done or knowingly omitted. Thus, in a case tried to a jury, it would be proper to instruct that: “In the absence of evidence in the case which leads the jury to a different or contrary conclusion, you may draw the inference and find that any person involved intended such natural and probable consequences as one standing in like circumstances, and possessing like knowledge, should reasonably have expected to result from any act knowingly done, or knowingly omitted, by such person. An act, or failure to act, is knowingly done, if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason.” Since intent may be proved by direct, indirect or circumstantial evidence, all the facts and circumstances in evidence in the case which may aid in the determination of state of mind may be considered. In the recent case of Bronson v. Board of Education, 6 Cir., 525 F.2d 344, the Sixth Circuit confirmed the course set in Oliver and further elucidated the meaning of the intent requirement. “In Keyes, the Court emphasized that the ‘differentiating factor between de jure segregation and so-called de facto segregation ... is purpose or intent to segregate.’ 413 U.S. at 208, 93 S.Ct. [2686] at 2697. (emphasis in original). . . . (T)he Supreme Court appears to have held that intent is synonymous with purpose in determining whether a racial imbalance which is found to exist in a school system that was never segregated by state law results in a constitutional violation. In a school system which was previously segregated by state law there is no requirement that intent be shown. The state action requirement of the Fourteenth Amendment is not an issue. On the other hand, in a school system which has never been operated under a state requirement of separation of the races, de facto segregation may only be treated as resulting from state action in violation of the Fourteenth Amendment if it is shown to result from intentional acts, omission or policies of public officials or public bodies. . “(A) court may infer intent, which is a subjective fact not easily proven, from evidence of racial imbalance accompanied by acts or omissions of a school board, the natural and probable result of which is to produce or perpetuate a segregated school system.” (Citing Oliver, supra, and Berry v. Benton Harbor School District, 505 F.2d 238 (6 Cir. 1975)). Bronson, p. 348. Under Keyes, in an intentional case, to be guilty of a constitutional violation, the state and/or local authorities must have in fact caused or maintained the segregated conditions which are complained of. Under this theory, it is a complete defense that the authorities have not at all caused or maintained, these conditions. Similarly, the defendants will not be held legally responsible if they have only occasionally committed segregative acts and these acts are of trivial importance and bear no significant relation to the modern situation. Rather, the standard must be that the defendants to a substantial degree contributed to the creation or maintenance of segregated schooling in Lansing. In a tort case, it would be proper to instruct the jury on the issue of proximate cause as follows: “An injury or damage is proximately caused by an act or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.” It is useful to note, as the Sixth Circuit did in Oliver, supra, at 182-183, that “(w)hen 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. Davis v. School District of Pontiac, 443 F.2d 573, 576 (6th Cir., cert. denied, 404 U.S. 913, 92 S.Ct. 233, 30 L.Ed.2d 186 (1971)). Benevolence of motives does not excuse segregative acts. As the Supreme Court stated in Wright v. Council of City of Emporia, 407 U.S. 451, 461, 92 S.Ct. 2196, 2203, 33 L.Ed.2d 51 (1972), ‘The “dominant purpose” test finds no precedent in our decisions. . . . The existence of a permissible purpose cannot sustain an action that has an impermissible effect.’ ” In a similar vein, the Second Circuit has observed: “. . . (W)e’believe that a finding of de jure segregation may be based on actions taken, coupled with omissions made, by governmental authorities which have the natural and foreseeable consequence of causing educational segregation. * * * “To say that the foreseeable must be shown to have been actually foreseen would invite a standard almost impossible of proof save by admissions. When we consider the motivation of people constituting a school board, the task would be even harder, for we are dealing with a collective will. It is difficult enough to find the collective mind of a group of legislators. See Palmer v. Thompson, 403 U.S. 217, 224-25, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971); and see Keyes v. School District No. 1, supra, 413 U.S. at 233-34, 93 S.Ct. 2686 (Powell, J., concurring). It is even harder to find the motivation of local citizens, many of whom would be as reluctant to admit that they have racial prejudice as to admit that they have no sense of humor. * * * * * * “Speaking in de jure terms does not require us, then, to limit the state activity which effectively spells segregation only to acts which are provably motivated by a desire to discriminate. * * * Aside from the difficulties of ferreting out a collective motive and conversely the injustice of ascribing collective will to articulate remarks of particular bigots, the nature of the ‘state action’ takes its quality from its foreseeable effect. The Fourteenth Amendment is not meant to assess blame but to prevent injustice.” (Emphasis supplied.) Hart v. Community School Board of Education, N. Y. School Dist. No. 21, 512 F.2d 37 (2nd Cir. 1975), cited in U. S. v. School District of Omaha, 521 F.2d 530 (8th Cir., 1975). Cf. Oliver, supra. In order to fairly assess the alleged actions and inactions of the defendants, and to determine what the foreseeable consequences of these acts and omissions were, it is necessary to consider the conditions existing when they occurred. To this end, the court has carefully evaluated all of the voluminous testimony and numerous exhibits put into evidence in this case since it began. For purposes of this opinion, the court need comprehensively review only those developments in Lansing public education which have taken place since the middle 1950’s, with special attention to the elementary schools. The most significant developments have involved the growth of a pronounced racial concentration in some West Side elementary schools, the growth of a pronounced ethnic concentration in the north-central section of the city, and the varied responses of the Lansing Board of Education to these disturbing situations. In particular the court has focused its attention on a number of acts and policies of the school board said by the plaintiffs to be evidence of de jure segregation. Chief among these are the rescission of the “cluster plan” for desegregating elementary schools, adopted by the Board on June 29, 1972, and the location and intended use of the new Vivian Riddle Elementary School, which is presently under construction. Other policies scrutinized by the court include those relating to mobile units, medical transfers, attendance boundaries, faculty hiring and assignment, physical facilities, and racial integration efforts involving transportation primarily of black children. The Supreme Court in Keyes, supra, 413 U.S. at 196, 93 S.Ct. at 2691, stated: “What is or is not a segregated school will necessarily depend on the facts of each particular case. In addition to the racial and ethnic composition of a school’s student body, other factors, such as the racial and ethnic composition of the faculty and staff and the community and administration attitudes toward the school, must be taken into consideration.” Previously the Court wrote: “In Green [Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968)], we pointed out that existing policy and practice with regard to faculty, staff, transportation, extracurricular activities, and facilities were among the most important indicia of a segregated system. 391 U.S., at 435, [88 S.Ct. 1689, at 1692] Independent of student assignment, where it is possible to identify a ‘white school’ or a ‘Negro school’ simply by reference to the racial composition of teachers and staff, the quality of school buildings and equipment, or the organization of sports activities, a prima facie case of violation of substantive constitutional rights under the Equal Protection Clause is shown.” Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 18, 91 S.Ct. 1267, 1277, 28 L.Ed.2d 554. Based on the extensive evidence adduced at the preliminary injunction hearing, the court ruled before trial that such a prima facie showing had been made in this case, and that defendants would therefore carry the burden of going forward at trial. This shifting of the burden upon a presentation of a prima facie case is commonplace judicial procedure, and its application in school desegregation cases is not novel. A presumption of segregative intent 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. Oliver, supra, 508 F.2d at 182; Keyes, supra; Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973) (en banc), rev’d on other grounds, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974); Davis v. School District of Pontiac, 443 F.2d 573 (6th Cir. 1971), aff’g. 309 F.Supp. 734 (E.D.Mich. 1970). The plaintiffs early in these proceedings established a prima facie case that the defendants maintained policies and were responsible for acts and omissions which did have the natural foreseeable, probable and actual effects of contributing to and continuing segregative conditions in Lansing elementary schools. Defendants have argued that the racial imbalance in Lansing elementary schools, and many of the acts and omissions plaintiffs complain of, are the result of a neighborhood school policy, consistently administered without regard to race. However, the Supreme Court has .made clear that facially neutral practices, even those neutral in terms of “intent,” may be illegally discriminatory in effect. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 28, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Thus, this court has analyzed the evidence in this case to determine the foreseeable effects of the defendants’ actions, as well as their motivations. III. This court finds the following facts and circumstances. The Lansing School District was organized in 1847 by the merger of three districts serving “upper, middle, and lower” towns in what was to become the City of Lansing. The City of Lansing and the school district expanded slowly and in 1949 had an area of about 11 square miles. Between 1958 and 1965 the Lansing School District grew rapidly, as part or all of 12 neighboring school districts were annexed. The size of the District increased so that presently it is approximately 50 square miles, much larger than the city proper. The Black population of Lansing likewise grew in the ’50’s, though not quite as dramatically. In 1950, Black people in Lansing numbered only 2,979 out of a total population of 92,129, or a little over 3%. By 1960, the proportion had changed to 6,745 Blacks out of a total of 107,807, or slightly over 6%. Most Blacks lived on the West Side of Lansing, in the southern part of what is commonly known as the “River Island area.” Following a familiar demographic pattern, Black people in the 1950’s moved into previously white neighborhoods in the West Side section, and the racial composition of elementary schools changed accordingly. Attendance Zone Boundaries One such school which was affected in this fashion was Main Street. In September 1956, the school was slightly overcrowded and 62% Black. At that time, the overcrowding was eliminated and the proportion of Blacks was reduced to 55% by an adjustment of boundaries which took a two-block area from the Main attendance zone and gave students living in that area the option of attending either Kalamazoo or Lincoln school. However, Blacks continued to move into the Main Street School service area, and the number of Blacks in the school continued to increase. The Board of Education said it “considered that the trend of an increasing ratio of Negro to White enrollment at the Main Street School could develop into complete segregation, a situation not conducive to satisfactory race relations.” In 1957, confessing that its original attempt to reverse this trend toward a segregated school had failed, the Board appointed a committee in response to a request by parents, to analyze the conditions and recommend corrective measures. Among other things this committee suggested an additional boundary change, or, alternatively, the immediate construction of an elementary school in the Heatherwood area to the northwest of Main Street School. The Board rejected the proposed boundary change for the reason discussed below. The Board also refused to construct a new elementary school since this would, in its view, require the vacating of satisfactory facilities and postpone the construction of new schools badly needed elsewhere. Finally concluding that the increased Black enrollment at Main was the result of Blacks moving into the service area, the Board resolved to abandon further efforts to keep Main integrated, and further resolved to maintain equal educational opportunity through a variety of special programs. The stated reason for the Board’s refusal to change boundaries as its committee recommended was that such alterations “cannot accomplish any material results unless some children travel unreasonably long distances, in some cases completely across a school district and into the district of a distant school.” Re-examination of this statement in light of the geographical realities is revealing. The school district which students would have had to go “completely across” to get into the “distant” district was a two-block wide strip of the Michigan service area which extends between Verlinden and Main, and is the site of Sexton High School. Of course, any students switched from the Verlinden to the Main area would have had to walk more than two blocks to actually get to school, but the map clearly shows that over one-third of the Verlinden service area is within a mile of the Main Street schoolhouse door. (Def. Ex. 82.) Lansing School District’s policy is that students are close enough to walk to school unless they live over a mile and a half from school. Indeed, a request that same year from White Main Street parents who wanted the board to change boundaries so their children could go to White Verlinden School instead of Black Main Street School, shows that parents did not consider the distance unreasonably great. It also shows that they did not consider the high school campus a barrier to their access to the elementary school on the far side of it. This request by White parents that the boundary lines be gerrymandered to allow their children to go to the White Verlinden School was presented to the Board at about the same time as a related request by Black parents that the Board change boundaries to reduce concentration of Black students at Main. The Board asked representatives of Blacks and Whites to work together to resolve their differences, and after a less than cooperative beginning, they finally did so. As noted above, no boundary changes were made by the Board at that time in response to these requests. In fact, since 1957, the Board has never altered the boundaries of the Main Street School service area, although the 1966 Citizens’ Advisory Committee recommended that boundary changes might be appropriate. The Board’s prediction about the trend toward complete segregation was borne out, as Main Street eventually became over 90% Black. In September 1957, the Board altered the boundary lines among Michigan and Verlinden and Kalamazoo by removing three blocks (two of which were residential) from Michigan and making them part of Verlinden, and transferring roughly the same size area from Kalamazoo to Michigan. The area transferred from Michigan to Verlinden was all-White; there were no minority residents living there at the time. The reason for the alteration is not entirely clear — it was stipulated that if Lansing School District Information Services Director John Maars had testified, he would have stated that it was overcrowding at Kalamazoo Street School. Exhibit 84, “Boundary Changes,” prepared by the school administration at the court’s request, indicates that the reason was “to balance enrollments” among Michigan, Verlinden, and Kalamazoo. The difference in the choice of terms appears to have some significance, since Exhibit 84, which outlines and states reasons for all boundary changes in the district since 1948, distinguishes between changes to relieve overcrowding, and changes to balance enrollments. Indeed, it appears from looking at the whole transaction that if one of these three schools whose enrollments were balanced was overcrowded, it was Kalamazoo. This, because while Michigan gave up area to Verlinden, it simultaneously took on territory from Kalamazoo. The view from the perspective of the Michigan Street School alone is puzzling, if not suggestive. Michigan had a capacity larger than the other schools involved. For the year 1957-58, and for a number of years before and after that, Michigan’s enrollment was significantly below capacity. Yet in 1957 the Board removed an all-White area from this school zone to already White Verlinden, with no apparent net change in the total size of the Michigan service area. (Michigan and Verlinden schools are about equidistant from the area in question; Michigan is slightly closer.) The Verlinden service area at this time had almost no Blacks. In 1950 it was virtually all White, and by 1960, it was still nearly 99% White. (Def. Ex. 24A, B.) The Michigan service area on the other hand, was overwhelmingly White in 1950, but by 1960 had a substantial number of Black residents. And Kalamazoo, already in 1950, was one of the two schools in the most heavily Black portion of the city (the other being Main). The court finds that a significant and growing number of Blacks resided in the Michigan attendance area at this time, and that the trend was evident by the late 1950’s, as the boundary changes in question were being discussed or taking place. Dr. Remick testified that using census data his office could have predicted these trends based on the northward migration of Lansing’s Black population, but no analysis was done. The effects of these population shifts on the school areas involved if not obvious were at least foreseeable. Considered in this context then, it appears that the boundary changes in 1957 “to balance enrollment” among the three schools had at least two important consequences. First, it removed an entirely White area from Michigan, which had a substantial and growing number of Blacks, and placed it in Verlinden, which had always been, and remained at that time, nearly all White. Second, while taking this White area from Michigan the Board simultaneously added to Michigan an area from a substantially Black school service zone. Attendance zone alterations which have the effect of exacerbating racial imbalance and isolation have been found in numerous cases to be indicia of segregative intent. See Oliver, supra; Bradley v. Milliken, supra, 484 F.2d at 221-236; Davis v. School District of Pontiac, supra, 443 F.2d at 576; Keyes, supra, 10 Cir., 445 F.2d 990, 1001; United States v. Board of School Commissioners of Indianapolis, 474 F.2d 81, 85-86 (7th Cir.), cert. denied 413 U.S. 920, 93 S.Ct. 3066, 37 L.Ed.2d 1041 (1973). After 1957, the Board made no changes in the boundaries of Main Street School. Subsequently, in the early 1960’s, Main Street School again became overcrowded, and two mobile units were placed there. During the time mobile units were used at Main, some space was available at Verlinden, but no boundary changes were made. (The use of mobile units is discussed in greater detail below.) Between 1957 and 1972, a number of committees and study groups recommended to the Board that boundary changes be made to rectify racial imbalances, but it does not appear from the record that any such changes were made. The rigidification of attendance zone boundaries around schools attended by the majority of Black students had the predictable and actual effect of “cementing” Black students into special areas and particular schools within those areas, and of preserving many other areas and schools for Whites. Oliver v. Kalamazoo Board of Education, supra, at 166, aff’d., Oliver v. Michigan State Board of Education, supra, at 183-84. Related to this is the fact that between 1949 and 1965 there were 18 separate annexations of neighboring school districts by the Lansing School District. Def. Ex. 79A, B. Many of these annexed districts brought with them buses which they had been using, and continued to use, for transportation of their pupils to and from school. Def. Ex. 83. Each of these annexations presented the Board with an affirmative opportunity to re-examine the attendance zone boundaries of the district, and to work toward racial integration. Instead, in each instance, the Board chose neither to reorganize service areas nor to initiate any other action which would have minimized discriminatory racial isolation. Too often, public officials act routinely on such matters, ignoring alternatives and failing to consider the natural and foreseeable consequences of their actions. While each annexation or similar agenda item has peculiar significance for a specific area or group of people, the school board has responsibility for and control over the entire district. It cannot be myopic. In order to discharge their obligations properly, school board members must look at the implications of each decision they make, in light of the best interest of the total district. Local school boards throughout the country have been on notice at least since the Brown decision in 1954 that they have a duty to eradicate discriminatory racial isolation. This duty should be constantly on the minds of school board members as they decide questions like boundary changes through annexation, transfers to relieve overcrowding, and selection of new sites. The Michigan State Board of Education and Michigan Civil Rights Commission articulated this idea well in their Joint Policy Statement when they stated that “(e)ach of these situations presents an opportunity for integration.” Transfers As the Board abandoned efforts to keep Main Street School racially integrated through boundary adjustments, it established special transfer policies which further exacerbated the problem of racial isolation. A Student Transfer Policy was adopted by the Board of Education in 1957 which permitted students to transfer because of emotional need, based on a physician’s statement. That policy, while neutral on its face, had the effect of accelerating the segregated nature of certain Lansing elementary schools. A policy which allows transfers from racial minority schools to racial majority schools, even when restricted, is tantamount to an authorization for White students to flee and is a means for the perpetuation of segregation. Davis v. Board of School Commissioners, 414 F.2d 609 (5 Cir. 1969); Monroe v. Board of Commissioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968); Goss v. Board of Education, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632 (1963). The policy was used by a large number of students to flee from predominantly Black Main and Michigan schools to Verlinden, a predominantly White school. A substantial number of those transferring were White students, though Whites made up a relatively small portion of the Main and Michigan student bodies. The disproportionate use of this policy by White students, alleging emotional need to transfer into White schools, was widely recognized as an abusive practice. The Board of Education knew about misuse of the policy as early as 1961, when the Committee on School Needs, established by the Board, recommended that the transfer policy be changed, stating that “the school system, rather than contributing further to the problem of segregation, must make positive efforts towards ameliorating the situation.” Hortense Canady, who served on the Committee, testified that it was disturbed by the large number of transfers out of Black schools, and especially from Main Street School to predominantly White Verlinden, for purely racial or allegedly “medical” reasons. Both parties acknowledged that some special transfers also went from Michigan Avenue School, which was becoming predominantly Black in the early 1960’s, to Verlinden. In its 1961 Report to the Board, the Citizens’ Committee recommended that a policy be established which would “discourage” and prevent transfer for reasons of race, nationality, or religion.” Since the Board keeps special transfer statistics for only five years, and for a time was precluded from keeping any statistics on the basis of race, the parties were unable to present data on transfers for every year since 1957. However, stipulated evidence was presented to the court showing that in 1962-63, 20 White students and 5 Black students transferred into Verlinden. No other school had more than 3 students transferring into it that year. In 1963-64, 17 Whites transferred into Verlinden, in addition to 16 Black students, while the next highest number of transfers to any other school was 5. At that time, Main was 95% minority, Michigan 75% minority, and Verlinden was 6% minority. Between 1966 and 1973, 48 White and 125 Black students transferred into Verlinden. Thus for all the years for which statistics are available, 85 White and 146 Black students transferred into Verlinden. These statistics do not tell the full story of the special transfers in the early 1960’s. They do not show, for example, the service area from which the students transferred into Verlinden. However, testimonial and documentary evidence suggested that the White Verlinden transfers came primarily from the Main Street School service area, and exclusively from the Main Street and Michigan Avenue service areas combined. The figures show that the policy was used by both Black and White students to leave the Black schools, and indeed there is testimony indicating that the policy was used by Black parents trying to get their children out of the segregated schools and into an integrated setting. Testimony elicited by the defense counsel, e. g., showed that at least one prominent member of the NAACP used the transfer policy to move his children to Verlinden. While these figures might be construed as evidence of a neutral policy, when they are considered in the context of the racial compositions of the schools involved, it is clear that the policy had a significant differential impact. During the years at issue, Main Street School was 95% Black, until 1969-70, and even then it was over 86% Black until the advent of the cluster program. In 1964, e. g., Main had only 20 nonminority students. Michigan Avenue school similarly was over 70% Black during the 1960’s, and reached over 90% Black in the years immediately before the cluster program began. It had 93 non-minorities in 1964. So at a time when Main had 20 Whites, and the two Black schools together had 113, it is reasonable to infer that allowing 20 Whites to transfer in one year, and 17 in the next, had a significant impact on the racial makeup of these schools. In the three-year period between 1966 and 1969, a total of 31 White students attended Verlinden though they were nonresidents of that attendance area; for these same three years combined, the total number of White students at Main was 24. In 1967, when Main had only nine Whites out of 312 students, 13 Whites were allowed to transfer into Verlinden. Moreover, this occurred at a time when Verlinden was becoming overcrowded, according to William Webb, Director of Pupil Personnel for the Lansing School District. When the policy was temporarily changed in 1967, one of the reasons was that Verlinden was becoming overcrowded. The bare statistics likewise do not state why students were allowed to transfer in such relatively large numbers into Verlinden school. The Board’s “Policy Statement No. 6121: Equal Educational Opportunity,” adopted on June 4,1964, stated the following with respect to transfers: “The Board of Education recognizes that on occasion it has been necessary to deviate from the attendance-area concept and assign students to schools far removed from their homes. This has been done to eliminate overcrowding of certain schools. In individual cases, a student has been allowed to attend a school other than the one to which he normally would be assigned. Such transfers have been authorized only because of the particular, individual needs of the student — usually curricular needs — which one school is prepared to meet, another is not.” (Emphasis supplied.) The suggestion was also made that each student was transferred for a bona fide “health” or “medical” reason. The plaintiffs, in contrast, contend that the Board’s system of special transfers in the Main-Michigan-Verlinden area amounted to a conscious departure from the neighborhood school policy in a situation where adherence to the policy would have produced a more even racial distribution among some schools, at least temporarily, The testimony of the witnesses on this issue is particularly important, because of the gaps in the evidentiary data. There is no record, e. g., of how many transfers, or of what race, took place in the first five years under the policy. But there was enough activity during this time to prompt a committee appointed by the Board to recommend a change in the policy because of misuse. Likewise, there is another two-year gap in recordkeeping from 1964 to 1966, a significant period in light of the large number of Whites who had transferred in the preceding years. Again, a committee appointed by the Board and operating during the years for which there is now no concrete data, found the policy was being abused by White students fleeing Black schools on the pretext of “emotional need.” The records that were kept showed only the receiving school, so again the testimony of witnesses was important in determining the actual effect of the policy on Black schools. The 1961 report of the Committee on School Needs recommended that the policy be changed to require verification by a psychiatrist of the alleged emotional need. Kathryn Boucher, who headed the subcommittee which dealt with this question, and later became a school board member, testified that the recommendation was based on the members’ knowledge of what types of youngsters were being transferred, and their belief that the policy was being abused. Hortense Canady, who also served on the committee, testified that what prompted the recommendation in 1961 were “medical transfers of a various nature that tended to transfer students in wholesale numbers from schools that were becoming more progressively Black in student body composition, and these students were being transferred to other schools that were predominantly White schools.” The Board, which had appointed the committee in 1959, received the report and was aware of its contents, but did not implement the recommended change. In light of the Board’s report in 1964 to the Lansing Human Relations Commission, incorporating Policy Statement No. 6121, set out above, the Board’s knowledge of the abuse at that point in time might still be questioned. In that report, the board stated that “transfers have been authorized only because of the particular, individual needs of a student — usually curricular needs — which one school is prepared to meet, another is not.” However, this report came at the end of a two-year period when 42% (58 of 139) of the transfers for the whole elementary school district were into one White school, Verlinden, from two Black schools, Main and Michigan. This either reflects adversely on the credibility of the Board’s assertion, or indicates a significant disparity between the curricular programs of the White school and the Black schools. At trial, the defendants did not attempt to justify the unusually large number of transfers to Verlinden as curricular. Moreover, the defendants have asked the court to make a finding that “the basic curriculum is the same throughout all of the elementary schools in Lansing School District.” Weighing the credibility of the Board’s assertion, in light of the 1961 report to the Board of abuses, and subsequent reports, as well as the testimony of witnesses, the court finds that nothing in the 1964 report negates the finding that the Board was aware of misuse of the transfer policy at that time. In 1965, the Education Committee of the Lansing NAACP prepared and presented to the Board of Education a report which, inter alia, critically discussed the transfer practices, and made a finding that no action had been taken since the 1961 recommendation and that transfers were still being granted as in the past. The next year, 1966, the Board received the report of the Citizens’ Advisory Committee, which it had appointed in 1965. This report again put the Board on notice that the policy was being misused. The committee wrote in its report: “The committee has investigated the use of medical permits obtained to enable a student from one school service area to attend another school. To the degree that medical certification is both easily obtained and uncritically accepted, the attendance area standards of the school system are being subverted. “The committee recommends that the procedure for obtaining medical permits be revised to cope with those relatively few cases where sound reasons may dictate a change in school assignment for emotional reasons. It recommends that the Board of Education utilize the services of a clinical psychologist or psychiatrist as part of the evaluation procedure.” (Emphasis in original.) Vernon Ebersole testified that he recalled, as a member of the Board, that the Citizens’'Advisory Committee in 1966 condemned the transfer policy. The court finds most persuasive the testimony of William Webb, who as Director of Pupil Personnel was the school administrator directly responsible for transfers for the past twelve years. He testified that at the time the 1966 report was submitted, it was his feeling that the transfer procedures were being misused, and that he conveyed this information to the Board. In January 1967, the Board finally changed the policy so that any transfer based on emotional instability would require verification of a psychiatrist. However, in June of that same year, the Board rescinded the new policy and substituted one allowing certification by either a physician or a psychiatrist — in effect, requiring only a medical doctor’s approval, as before. Finally, the suggestion was made that each transfer was for a bona fide “health” or “medical” reason which existed apart from the desire of some to escape from predominantly Black schools to a nearby White one. The problem with this explanation, in addition to its conflict with the evidence recounted above, is its inherent improbability. The court does not find credible the suggestion that relatively large numbers of White students had special health difficulties requiring them to attend Verlinden (20 in 1962-63, 17 in 1963-64), while the next highest school received only 3 special transfers in 1962-63 and 5 in 1963-64, nor that such reasons necessitated the transfer of 231 students into Verlinden in nine years. The wide disparity between Verlinden and other schools suggests that the major reason for transferring to Verlinden was other than medical, and the statistics on the racial balance of Main, Michigan and Verlinden lend credibility to the charge that the transfers to Verlinden were racially motivated, and allowed with the factor of race principally in mind. After carefully weighing the testimony of the witnesses, and evaluating the relevant exhibits, the court is convinced, and finds as a fact, that the transfer policy was abused in a way which contributed to the segregative conditions in these schools, and with the knowledge of school officials and the Board of Education. The Board’s intentional maintenance of the transfer policy, and its refusal to change it, had the clearly foreseeable effect of increasing racial identifiability of Main Street School, Michigan Avenue School, and Verlinden Street School. In Morgan v. Hennigan, 379 F.Supp. 410 (D.Mass.) Judge Garrity considered the rescission by the school board of a resolution it had passed modifying a transfer policy. He found in that case, as the court does here, that “the ‘neighborhood school’ policy was subordinated to the white students’ presumed right to escape to safely white out-of-district schools.” 379 F.Supp. 410, 456 (D.Mass.1974). Mobile Units The school system’s placement of some mobile units is further evidence of official action aggravating segregative conditions. Cf. Keyes, supra, 413 U.S. at 202, 93 S.Ct. 2686, and 445 F.2d at 1000-01. When Main Street School became overcrowded during the period of the late 1950’s and early 1960’s, the Board of Education could have made the decision to alter boundaries or transport students to other attendance areas to relieve the situation. Instead, in 1962, it added two mobile units at Main Street, thus contributing to and perpetuating the racial identifiability of that school, which was well over 50% Black. During the time that the Board used mobile units at Main, nearby Verlinden Street School, in 1962-63, had only 330 students enrolled, but a capacity of 368. Also during the period when Main had mobile units, nearby Barnes, with a capacity of 456 had actual enrollments of 425 (1962-63), 396 (1963-64), and 409 (1964-65). Verlinden is about 14 blocks, slightly over a mile, north of Main Street School, and Barnes Avenue School is about 1.2 miles southeast of Verlinden. A study by the Education Committee of the Lansing NAACP showed, based on research by Dr. John Porter, now Superintendent of Public Instruction, that in 1962-63, Verlinden had two vacant classrooms, and Barnes had one vacant classroom. Both Barnes and Verlinden were predominantly White at the time. Either through boundary changes or transportation of students, the school system could have utilized vacant spaces in either of these schools to simultaneously relieve overcrowding at Main and affirmatively enhance integration. But instead it chose to use mobile units, containing the Main Street School population on that campus, despite the objections of parents and community groups. That transportation to relieve overcrowding and achieve integration was a viable alternative is demonstrated by the fact that as a result of community displeasure with the mobile units, some Main students were transported to Walnut beginning in the fall of 1964. (In fact, it appears that the Board considered transportation as an alternative before it placed the mobile units.) The use of Walnut also shows that the school board did not consider itself limited only to adjacent attendance areas when seeking to remedy overcrowded conditions in elementary schools. Physical Conditions and Facilities The maintenance of unequal facilities for Black and White students is another important indicium of de jure segregation. Cf. Oliver v. Kalamazoo Board of Education, supra, at 174-75; Green, supra, 391 U.S. at 435, 88 S.Ct. 1689. Although Lansing elementary school facilities in general were adequately maintained, M