Full opinion text
OPINION FOX, Chief Judge. Nearly ten years after filing this action, and over seven years after having established a prima facie case that the schools attended by plaintiffs, and the class of persons they seek to represent, are products of de jure segregation, plaintiffs remain contained in segregated schools under conditions no better, and in many cases considerably worse, than when this litigation was initiated. After a careful and searching examination of the evidence presented at trial, and of the record established at the previous trial before Judge W. Wallace Kent, I conclude that defendant, Benton Harbor Area School District, has failed to rebut the prima facie case of de jure segregation established against it. That is, plaintiffs have shown action or inaction by public officials, with a segregative purpose and intent, which actually resulted in increased or continued segregation in the public schools of Benton Harbor. When matters of great public and constitutional significance come here for resolution, this court assumes an extra duty of care in explaining the reasons for its decision. As always, the court states the factual basis and the legal standards on which its conclusion rests so that counsel for the parties, and the appellate court, will know the legal grounds for this court’s decision. Equally important, however, this court assumes also an affirmative obligation to attempt to educate the public concerning the basic principles underlying our constitutional democracy and the practical application of these principles in our public affairs. Since the present school desegregation case is of such importance to the people of Benton Harbor and the State of Michigan, this court has gone to great lengths to detail the facts and explain the basic constitutional principles which led the court to its conclusion. 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 by other governmental officials or the voters. The real reason that courts are active in school desegregation matters, however, is the failure of other governmental entities to confront and produce answers to the many problems in this area pursuant to the Constitution and laws 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. I. Procedural Background of the Case. The original complaint in this action was filed on November 16, 1967. In the .complaint, plaintiffs Berry, et al., black children attending the public schools of Benton Harbor, Michigan, and their parents sued the School District of the City of Benton Harbor, the members of that Board, and the Superintendent of the School District. Among other relief, the complaint sought preliminary and permanent injunctive relief to: “. . . restrain the defendants named herein from continuing to maintain racially-segregated, educationally and psychologically detrimental schools, making additions to such schools, thereby aggravating segregated, harmful conditions, and building new schools which will be segregated and harmful, from dispensing educational goods and services, in a racially-discriminatory manner, from continuing, to inflict and cause harm, to black pupils by use of Board procedures and policies, and from compelling attendance at institutions which are educationally and psychologically detrimental to black pupils.” Plaintiffs’ Complaint at ¶ 2. The complaint covered a broad spectrum of .practices by the defendants which plaintiffs deemed to be discriminatory or segregative. After extensive discovery, trial was held in February 1970, before the late Judge W. Wallace Kent. In findings of fact and conclusions of law announced by Judge Kent in July 1971, the court found several practices carried out by defendants to be discriminatory, among them assignment of teaching positions by race and the “tracking system” at defendants’ junior high schools. Judge Kent, however, concluded that the racial imbalance in the Benton Harbor public schools was not the result of de jure segregation, as he interpreted the existing case law. In an opinion delivered November 1,1974, the Court of Appeals, ruling upon the appeal of defendants and the cross-appeal of plaintiffs, affirmed the District Court’s determination that the above-listed practices were discriminatory; Berry v. School District of City of Benton Harbor, 505 F.2d 238 (6th Cir. 1974). The Court of Appeals, however, determined that a prima facie case of de jure segregation had been made out by plaintiffs: “It is clear from a recital of the facts of record in this case that a number of important indicia of de jure segregation were present even though a dual school system was neither compelled nor authorized by law. The school system was in fact racially imbalanced, teachers were assigned on the basis of race, the physical condition of the predominantly black schools was generally inferior to the conditions in the predominantly white schools, and the method of assigning students to learning groups in the black junior high school deprived black students of an equal opportunity for an education. The Supreme Court has stated that discrimination in these areas of education constitutes a prima facie case of the existence of a dual school system. Reyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 201, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 18, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Green v. County School Board,- 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). We are satisfied that a prima facie case was made out in this instance. ' “We recognize the difficulty in determining the quantum of state participation which is a prerequisite to a finding of a constitutional violation. ‘[T]he necessary degree of state involvement is incapable of precise definition and must be defined on a case-by-case basis.’ United States v. Texas Education Agency, 467 F.2d 848, 864 (5th Cir. 1972), cited with approval in Keyes v. School District No. 1, Denver, Colorado, supra, 413 U.S. at 215, 93 S.Ct. 2686 (Douglas, J., concurring). The district courts are not without guidance in this difficult task, however, as there have been a number of appellate decisions addressed to this problem. Although the relevant standards have not changed since Judge Kent rendered his decision in 1971, the Supreme Court has attempted to clarify the law in this area. For this reason, the issues presented by this case are particularly well suited to fresh consideration by the district court in light of recent case law. The question on remand will be whether defendants can successfully negate the prima facie ease of de jure segregation that has been made against them.” Id. at 242. Upon remand, the case was assigned to this Judge. Previous to the decision in the Court of Appeals, plaintiffs filed, on August 21, 1974, a motion to add parties and an application for a temporary restraining order. The added defendants were the Michigan State Board of Education; John W. Porter as Superintendent of Public Education of the Board of Education of the State of Michigan; and the Boards of Education of the Eau Claire School District and the Colonia School District. The injunctive relief sought was to cancel the transfer to the Eau Claire School District (Sodus transfer) and to the Coloma School District (Eaman transfer) of portions of the Benton Harbor .School District. These transferred areas were overwhelmingly populated by white students and the transfers were claimed to increase the alleged segregation of the Benton Harbor Schools; The Sodus and Eaman transfers were alleged to have been approved by Defendants Porter and the Michigan State Board of Education. As I noted in an opinion accompanying the preliminary injunction; “The appropriate educational authorities did not seek leave from any federal court before carrying out the order of the State Board of Education, even though the Board’s order alters the very subject of the suit — the Benton Harbor School District.” Opinion Granting Preliminary Injunction, at 3. Finding that the transfers would significantly affect the subject of the suit and concluding that the fact that the case was on appeal did not deprive this court of jurisdiction to promulgate additional orders to maintain the status quo, I granted the motion to add parties and granted injunctive relief against the implementation of the Eau Claire (Sodus) transfer. I also noted my concern that the transfers themselves could potentially be acts of segregation. On January 8, 1975, the Sixth Circuit affirmed both the issuance of the above injunction and this court’s order adding parties defendant. Subsequently, on September 18, 1975, plaintiffs filed a Motion for Leave to File Supplemental Complaint. In addition to the original defendants to this suit and those added by order of this court in 1974, the Supplemental Complaint sought to add the following defendants: William G. Milliken, Governor of the State of Michigan; Frank J. Kelley, Attorney General of the State of Michigan; the Municipal Boundary Commission of the State of Michigan; and the Berrien County Intermediate School District and its Superintendent, Raymond Sreboth. Governor Mil-liken, Attorney General Kelley, the State Boundary Commission, and the Berrien Intermediate School District, among other allegations, were claimed to be responsible for the attempted dismemberment of the Benton Harbor School District. It was also alleged that these . additional defendants failed to take any affirmative action to halt the continuing trend of segregation in the Benton Harbor public schools. In order to expedite matters in these lengthy proceedings, I ordered plaintiffs’ Supplemental Complaint filed on September 25,1975. Leave was given to the added defendants to file motions to strike the Supplemental Complaint. Various such motions were filed by the State defendants and Berrien County Intermediate Board. In an opinion entered May 27, 1977, these motions were denied. In order to simplify trial proceedings, it was determined that the action would be heard in two parts. Phase I would be rebuttal by the Benton Harbor Area School District (BHASD) of the prima facie case of de jure segregation. On this phase, the defendant BHASD would have the burden of proof. Phase II would be tried at a later date and involve the added defendants and matters raised by the Supplemental Complaint, upon which all parties agree the plaintiffs have the burden of proof. However, because it is impossible to strictly delimit the proofs that are introduced in so broad and complex a case as this, the added defendants were advised that evidence might be introduced during Phase I that was also relevant as to the issues involved in Phase II. All.of the added defendants were given the opportunity to be present during Phase I, to cross-examine witnesses, and make objection to the admissibility of evidence. The added defendants were also given a substantial amount of time after the conclusion of trial in Phase I to formalize and submit their objections to- evidence .pertaining to Phase II issues. This opinion, however, goes solely to the issue of liability of the Benton Harbor Area School District. Trial of Phase I was begun on June 21, 1977 and was completed on June 24, 1977. At this point, I would like to congratulate attorneys for the plaintiffs, Mr. Thomas Atkins and Mr. Elijah Noel, and attorneys for the defendant, Benton Harbor School Board, Mr. John Tully and Mr. Rocky De-Francesco, for the respect they showed each other and the court, and the spirit of cooperation exhibited by counsel in what sometimes have the tendency to be rather strained proceedings. Upon the filing of the trial transcript the parties were given three weeks in which to submit Proposed Findings of Fact and Conclusions of Law. Oral argument was held on these Proposed Findings on August 16, 1977. II. Class Certification.' One final issue requires resolution before an examination of defendant BHASD’s liability is begun. Plaintiffs filed a “Motion to Certify the Within as a Class Action” on April 13, 1977. Defendants object to the class action certification for two reasons: (1) untimeliness, that is, it was not filed “as soon as practicable after the commencement of the action.” and (2) over-breadth, that is, that the named plaintiffs, black students in the Benton Harbor Schools and their next friends, are not representative of white students in the district (the class certification motion includes “all present and future students within the Benton Harbor School District”). This action has been treated by the court, and the parties, as a class action since the filing of the original complaint. Indeed, the opinion of Judge Kent issued at the conclusion of the 1970 trial recognized that plaintiffs sought relief on their own behalf and upon behalf of “members of their class.” Findings of Fact and Conclusions of Law, at 1. It is implicit that the relief granted there was on behalf of plaintiffs and the class they sought to represent. All that has-been lacking in these proceedings is a formal certification of the class. The Advisory Committee’s Note to the 1966 amendment to Fed.R.Civ.P. 23 indicates that Rule 23(b)(2) is intended to function as an effective vehicle for the bringing of suits alleging racial discrimination. See, Reprint of Committee Note, 39 F.R.D. 98, 102. The requirements of Rule 23(a) need not be so stringently applied where a suit alleging racial discrimination has been brought: , “In most civil rights cases plaintiff seeks injunctive or declaratory relief that will halt a discriminatory practice or that will strike down a statute, rule or ordinance on the ground it is constitutionally offensive. Whether plaintiff proceeds as an individual or on a class suit basis, the requested relief generally will benefit not only the claimant but all other persons subject to the practice or rule under attack. A judicial determination that a law or practice infringes upon protected liberties and therefore is invalid will prevent its application against anyone, not simply the party before the court. Thus, even if plaintiff is not a proper representative in the traditional sense, striking a class claim will not effectively change the end result if the party successfully proceeds on an individual basis. . . . Moreover, as a practical matter, it,is immaterial that some members of the class favor a particular ordinance and oppose the action or are antagonistic toward plaintiff. If a statute, ordinance, or practice violates constitutional limits it will be invalidated notwithstanding the fact that there are those who would like to have it upheld.” 7 Wright & Miller, Federal Practice § 1771. In light of these practicalities, and due to the notoriety of this case in the Benton Harbor area, members of the class have adequate notice. Certification of the class will not in any way delay the culmination of this litigation; nor will any party be prejudiced by certification at this time. This is especially true in the present casé where only declaratory and .injunctive relief, not monetary damages, is sought. It must be recognized that class certification now would have as its primary effect allaying the fears of plaintiffs that their case may be mooted by the graduation or transfer of all named plaintiffs out.of defendant BHASD’s schools. Now that-this case has dragged on for nearly ten years, that fear is becoming a reality. Therefore, I find that this action is a proper class action and certify it as such pursuant to Rule 23. Senter v. General Motors Corp., 532 F.2d 511 (6th Cir. 1976). Plaintiffs designated this action as a class- action in their initial complaint, before any determination of the merits. The responsibility to certify an action as a class action as soon as practicable after the commencement of an action rests upon the court, not the plaintiffs. Senter, supra, at 520-21. Plaintiffs’ motion to certify this action as a class action is hereby granted. III. The Segregation Problem. 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 Benton Harbor 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 onslaught 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 presént, 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 continue 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 or 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 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 students 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 racial[ly] 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. IV. The Legal Standard of Intent. 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 hierarchical 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. As noted above, this case has been remanded to this court to determine “whether defendants can successfully negate the prima facie case of de jure segregation that has been made against them.” However, it is helpful at this time to examine the legal standards this court is applying to determine if the defendants have successfully rebutted the case against them. None of the parties argue against the proposition that plaintiffs must make out a case of de jure segregation to prevail. Although discriminatory effects of certain actions taken by defendants may be “indicia” of segregative intent, discriminatory effect alone does not rise to a constitutional violation. “Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977); cf. Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). 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. Shappeli, 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 ease tried to a jury, it would be proper to instruct that: “[Y]ou may infer a person’s intent from surrounding circumstances. You may consider any statement made or act done or omitted by a party whose intent is in issue, and all other facts and circumstances which indicate his state of mind. “You may consider it reasonable to draw the inference and find that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted.” 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, 525 F.2d 344 (6th Cir. 1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1665, 48 L.Ed.2d 175, 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. .Undet 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 Benton Harbor. 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.” (Emphasis added.) 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. Bather, 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). 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.’ ” (Emphasis added.) The record before the court in this case leads me to conclude that the collective will of the Benton Harbor School Board over the past years was, and continues to be, persistent, deeply rooted, pervasive, intentional segregation, which permeated the entire school system. 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 óf humor. * * # * ’ * # ' “Speaking in de jure terms does no.t 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, 50 (2nd Cir. 1975), cited in U. S. v. School District of Omaha, 521 F.2d 530 (8th Cir., 1975). Cf. Oliver, supra. In Washington v. Davis, the Supreme Court admitted that “[njecessarily, an invidiously discriminatory purpose may often be inferred from the totality of relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. . . . Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden, by the Constitution.” 426 U.S. at 242, 96 S.Ct. at 2049. The majority’s reference to the necessity of proving segregative intent from the totality of the circumstances was amplified by Justice Stevens in his concurring opinion: “Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than • evidence describing the subjective state of mind of the actor. For normally the actor is presumed to have intended the natural consequences of his deeds. This is particularly true in the case of governmental action which is frequently the product of compromise, of collective decisionmaking, and of mixed motivation. It is unrealistic, on the one hand, to require the victim of alleged discrimination to uncover the actual subjective intent of the decisionmaker or, conversely, to invalidate otherwise legitimate action simply because an improper motive affected the deliberation of a participant in the decisional process. A law conscripting clerics should not be invalidated because an atheist voted for it.” 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. 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 undér 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 upon the fact that the plaintiffs had shown in the original trial of this action that the school system was in fact racially segregated, that teachers were assigned to schools on the basis of race, that the physical conditions of the predominantly Black schools were generally inferior to the coriditions of predominantly White schools, and that the method of assigning students to learning groups in the Black junior high school deprived Black students of equal opportunity, the Court of Appeals found that the plaintiffs had made out such a prima facie case. This meant that the defendants had the burden of going forward with their proofs at the new trial. This shifting of the burden of proof 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). V. Findings of Fact. The recent case of Dayton Board of Education v. Brinkman, 433 U.S. 406, 416, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977), reaffirmed the already well-established principle in school desegregation cases that the scope of the remedy must be commensurate with the scope of the constitutional violation. In reversing a system-wide remedy ordered upon the basis of three isolated equal protection violations, the Court stated: “If such [constitutional] violations are found, the District Court in the first instance, subject to review by the Court of Appeals, must determine how much incremental segregative effect these violations had on the racial distribution of the Dayton school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy must be designed to redress that difference, and only if there has been a system-wide impact may there be a system-wide remedy.” Id. at 420, 97 S.Ct. at 2775. Therefore, although this opinion goes only to the question of liability of defendant Benton Harbor Area Schools, any remedy ordered must be based upon clear discriminatory violations shown and the extent of the impact of these violations upon present conditions in the Benton Harbor Area public schools. This, in turn, requires a careful examination of the record made before Judge Kent and his Findings of Fact, based upon the situation in 1970, and the present situation within the defendant’s schools. Such an examination is necessary to determine whether the defendant has rebutted the prima facie case of de jure segregation against it, whether subsequent actions taken by defendant have remedied the effects of previous segregative acts, and what the scope of any court-imposed remedy should be. A. The Record of the Original Proceedings. Judge Kent concluded that the defendant had committed three violations of the equal protection clause: (1) assignment of teachers by race; (2) use of the “tracking” system at Benton Harbor Junior High (which involuntarily assigned Black students to generally lower achievement. level groups from which it was difficult to escape); and (3) the per-student budgeting procedure which Judge Kent perceived as discriminatory against Black students in the older, identifiably Black schools. The Court of Appeals affirmed Judge Kent’s order as to the “tracking” system and it has since been eliminated. The finding as to the per-student budgeting procedure was reversed on appeal. The finding as to assignment of teachers was also affirmed ■ upon appeal. Judge Kent, feeling bound by Sixth Circuit precedent, felt he could not invalidate the defendant’s neighborhood school policy. However, he went on to state for the record: “It would be possible to dwell at great length upon the testimony which has been offered and received in this courtroom in the last two weeks and more in regard to this situation, but no purpose would be served by that; and the Court should say, therefore, that it is satisfied, based upon this record, that the neighborhood school system which is before this Court necessarily results in the denial of equal opportunity for education to the black child who is forced because of other circumstances to attend a predominantly black school.” Bench Opinion at 17. As noted above, the Sixth Circuit Court of Appeals, finding certain indicia of de jure segregation, reversed "the District Court’s finding of no dual school system and remanded the issue for “fresh consideration” by this Court in light of recent case law. I will attempt to follow as closely as possible the Findings of Fact made by Judge Kent. However; because Judge Kent felt the case law at that time prevented him from finding de jure segregation, despite his own predisposition to do so (as indicated by the above excerpt from his Bench Opinion), there are perhaps many Findings of Fact which Judge Kent may have made if he had felt it was permissible for him to conclude there was a dual system under the facts of this case. I have, therefore, made a complete examination of the record established before Judge Kent and make the following Findings of Fact based upon that record. I will first make a short examination of the history of the Benton Harbor public schools. I will then examine the indicia of de jure segregation pointed out v by the Court of Appeals’ opinion- and also examine any other indicia of de jure segregation, e. g., intact busing, transfer policies, which may be present in the original record. (1) History of the Benton Harbor Area School District. The Benton Harbor Area School District (BHASD) was established on June 17, 1965, by the consolidation of the School District of the City of Benton Harbor, with fifteen neighboring and previously separate school districts. The consolidation was approved by a majority of voters in each district. Consolidation occurred under the impetus of a (then) recently enacted Michigan statute which made it desirable for independent districts, not providing high school educations, to consolidate with districts providing the full range of K-12 (Kindergarten through twelfth grade) classes. Subsequent to consolidation, two other independent districts were joined to BHASD, one by annexation (Eaman) and the other by attachment (Martindale). All of the districts joining the School District of the City of Benton Harbor had previously sent their high school-age students, on a tuition basis, to Benton Harbor High School. An additional purpose of consolidation was to remedy the containment of Black students in the Benton Harbor city schools, and prevent the schools within the city limits of Benton Harbor from becoming all Black. At the time of consolidation, the districts joining, the number of schools in each district, the number of students in each school, and the percentage of Black students in each school were as follows: District Number of School Buildings Number of Students Percent Black Benton Harbor 7: Calvin Britain 589 54.3 Columbus 262 19.1 Morton 702 89.7 Seely McCord 711 88.6 Sterne Brunson 501 6.6 Benton Harbor Jr. H. 932 56.3 Benton Harbor H. S. 2289 20.7 Fairplain 5: Fairplain East 296 2.7 Fairplain Northeast 220 5.4 Fairplain Northwest 209 0.0 Fairplain West 322 0.0 Fairplain Jr. H. 585 3.2 Stump 2: Stump Alma 128 96.9 Stump Nickerson 91 32.9 Bard 1 836 95.7 Boynton 1 384 78.9 Chadwick 1 55 3.8 Eaman 1 119 0.0 Hull 1 801 47.1 Johnson 1 286 1.0 Lafayette 1 231 1.3 Martindale 1 279 0.0 Millburg 1 178 2.8 Mt. Pleasant 1 36 8.3 North Shore 1 122 5.7 Pearl 1 163 0.6 Sodus 1 83 8.4 Sorter 1 510 2.9 Spinks Corner 1 46 2.2 At the time of consolidation, BHASD was 37.3 percent Black. As of consolidation, only 2 of 29 schools in the new district (Hull and Stump Nickerson) were racially unidentifiable — the remaining 27 schools were racially identifiable as Black schools or as White schools. Additionally, in the year following consolidation (the first year of the new district for which relatively complete figures are available), 55.41 percent of the 4,223 Black elementary and junior high students attended schools that were 75-100 percent Black. At the same time, 67.06 percent of the 5,046 White elementary and junior high students attended schools that were 75-100 percent White. The schools of the post-consolidation district were not racially identifiable solely on the basis of student population. As a rule, they were also racially identifiable upon the basis of the racial makeup, of the faculty, building administrators and staff, physical facilities, recreational areas, and other characteristics. The racial composition of the schools in the consolidated system largely reflected the long-standing pattern of segregated housing in the Benton Harbor-St. Joseph area. As late as 1956, public housing in the City of Benton Harbor was officially segregated upon the basis of race. The record shows at least .two instances in which the predecessor districts of the present consolidated district took action relative to the public housing authorities which had the natural, probable, and foreseeable consequence of increasing the segregative conditions within their schools. In the first instance, the City of Benton Harbor District and the Bard School District debated over which district would admit the children of Black residents of the Fair Avenue housing project, constructed in early 1952 on the border between the two districts. The Fair Avenue project was a segregated Black housing project. Although the land on which the project was built had been annexed to the City of Benton Harbor in 1951, the area remained technically a portion of the Bard District until the Fall of 1952. In any case, the 65 Black students were refused entry at the beginning of the 1952-53 school year at both Bard School and at Seely McCord School — the closest city school. After one week passed without school, the children were finally admitted to the Bard School. At that time, Bard School was approximately 40 percent Black and Seely McCord School approximately 10 percent Black. Although part of the motive over refusal to enroll was based upon a dispute over the implications of state annexation law, the inference is reasonable that the dispute would not have occurred except for the fact that neither district wished to have the additional 65 Black students in their district. In the second instance, the Superintendent of the Bard District, in a letter to the Benton Harbor Housing Commission, approved the construction of a 200 unit, low-rent housing project within his district in 1960. Although the Bard School was already seriously overcrowded, and the new project would add an estimated 140 students to the school, Superintendent Riemersma was not concerned because of a planned bond proposal to add eight rooms to the school. The additional rooms were never built. The natural, probable, foreseeable and actual result of this approval of construction of a housing project which would be inhabited by Black residents, was to increase the segregation of a school that was already in excess of 80 percent Black. As was stated in Reed v. Rhodes, supra, note 38: “It is clear that the presence of racially segregated public housing in connection with school board policies operated to spawn racially segregated schools. There can be little doubt that this result was the natural, probable, foreseeable, and actual effect of the school board’s ‘neighborhood school policy.’ ” Id. at 789. It must be concluded, therefore, that the Bard officials intended the continued and increased segregation of the . Bard School. To say the least, defendant BHASD was racially segregated from the start. However, with the exception of the above incidents, there is a paucity of evidence that the predecessor districts were the products of intentional segregative acts. This does not mean that such was not the ease. Far from it, for this court is left with the firm impression that there was pervasive and purposeful segregation in the predecessor districts. However, despite numerous requests from the plaintiffs for preconsolidation records, and despite a Michigan statute requiring the consolidated district to receive the records of the predecessor districts, defendant has consistently replied that no such records are available Therefore, plaintiffs’ efforts to trace the present segregated conditions in the defendant’s schools to intentional segregative acts of" the'component districts have largely been frustrated. These records are public documents and ought to be preserved and kept available. Where it would be natural under the circumstances for a party to introduce documents in his possession and he fails to do so, his failure may invoke an adverse inference. N.L.R.B. v. Evans Packing Co., 463 F.2d 193 (6th Cir. 1972); II J. Wigmore, Evidence §§ 285, 291 (3d ed. 1940); 2 Devitt & Blackmar, Federal Jury Practice and Instructions § 72.17 (3d ed. 1977); The adverse inference which arises here is that these records of the predecessor districts would have shown that those districts were intentionally segregated and that the consolidated board was aware of those circumstances. This is another indicium of the segregative intent found to be present in the instant case. .The court, however, has relied primarily on post-consolidation evidence obtained in these proceedings, and the finding of de jure segregation would stand alone on the basis of that evidence, and in the absence of such inference. (2) Indicia ’of De Jure Segregation. A. Racial Segregation. While racial segregation itself is not sufficient to make out a case of de jure segregation, it is an indicium of de jure segregation which shifts the burden of proof as to segregative intent to the defendant. Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 201, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 18, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Berry v. School District of the City of Benton Harbor, supra, 505 F.2d at 242. Defendants in this case have never denied that the schools of the defendant district are racially imbalanced. As noted above, the schools at the time of consolidation were highly segregated. This segregated condition had worsened by the time of trial before Judge Kent. The “fourth Friday” count for the 1969-70 school year indicates that 70.53 percent (3,353 of 4,754) of White elementary and junior high students were attending schools 75-100 percent White, an increase from 67.06 percent for the 1966-67 school year. The comparable figures for Black students showed a markedly sharper increase in segregation, with 77.12 percent (3,784 of 4,908) of Black elementary and junior high students attending schools 75-100 percent Black, up from 55.41 percent for the 1966-67 school year. In a school district that for the 1969-70 school year was 48.8 percent Black, five schools were more than 90 percent Black. Three other schools were more than' 80 percent Black. Ten schools were more than 90 percent White. Four others were more than 80 percent White. With the exception of the high school, which all students in the district attend, the only schools in the system which were not racially identifiable were Columbus, Hull, and Sterne Brunson elementary schools. B. Teacher Assignment. Judge Kent made the following findings and conclusions. with regard to the assignment of teaching faculty in the Benton Harbor public schools: “At time of the trial Defendant district had fourteen schools have [sic] one hundred percent white faculties. It appears that in the 1966-67 school year, 68.09% of all black elementary and junior high teachers were assigned to schools with a 75% or more black enrollment. For the 1969-70 school year, the percentage rose to 84.62%, an increase of 16.53%. For white elementary and junior high teachers, the percentage in the 1966-67 school year was 44.27% assigned to schools with a white enrollment of 75% or more. For the 1969-70 school year the percentage was 50.34%, an increase of 6.07%. * sjt * # * * It appears ... to the satisfaction of the Court that there is an unconstitutional assignment of teachers by race. We cannot assume that the fourteen schools which have one hundred percent white faculties, most of which are elementary schools or have elementary school facilities, did not have vacancies at the time that certain of the witnesses were employed by the Benton Harbor School system; more specifically, Mrs. Inez Waddell, Miss Dorothy Jefferson and Miss Bertha Jenkins, each of whom testified without contradiction that they were not afforded an opportunity to obtain employment in white schools, thus it appears that they were assigned to black schools because they were black, which by all standards, is unconstitutional. Monroe v. Board of Commissioners of the City of Jackson, [6 Cir.,] 380 F.2d 955.” Judge Kent ordered defendant to cease from assigning teachers upon the basis of race. This order was affirmed by the Court of Appeals and is not at issue here. This finding must, however, be considered as part of the cumulative evidence of the constitutional violation present here. Because assignment of teachers upon the basis of race adds to the racial identifiability of a school, it may hasten the increased segregation of that school or help to preserve it in a segregated state. As was stated in Keyes, supra, 413 U.S. at 202, 93 S.Ct. at 2694: “[T]he assignment of faculty and staff, on racially identifiable bases, [has] the clear effect of earmarking schools according to their racial composition, and this, in turn, together with the elements of student assignment and school construction, may have a profound reciprocal effect on the racial composition of residential neighborhoods within a metropolitan area, thereby causing further racial concentration within the schools.” . Therefore, to more fully understand the impact this policy of assignment of teachers upon the bas