Full opinion text
DECISION AND ORDER (Including Findings of Fact and Conclusions of Law) REYNOLDS, Chief Judge. The Court hereby finds, for the reasons stated below, that the defendants discriminated against the plaintiffs with segregative intent, as further specified below, and in so doing violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and the Civil Rights Act of 1871, 42 U.S.C. § 1983. I. Introduction On January 19, 1976, the Court concluded that Milwaukee public “school authorities engaged in practices with the intent and for the purpose of creating and maintaining a segregated school system, and that such practices had the effect of causing current conditions of [racial imbalance] in the Milwaukee public schools.” Amos v. Board of School Directors of the City of Milwaukee, 408 F.Supp. 765, 818 (E.D.Wis.1976). This holding of liability was affirmed by the court of appeals on July 23, 1976. See Armstrong v. Brennan, 539 F.2d 625 (7th Cir. 1976). On June 28, 1977, however, the Supreme Court vacated the judgment of the court of appeals and remanded the case for reconsideration in light of Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), and Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977). See Brennan v. Armstrong, 433 U.S. 672, 97 S.Ct. 2907, 53 L.Ed.2d 1044 (1977). The court of appeals subsequently remanded the case to this court for proceedings consistent with the Supreme Court’s mandate. Armstrong v. Brennan, 566 F.2d 1175. (7th Cir. 1977). After consulting with the parties, the Court decided that the first issue to be considered on remand was the question of segregative intent. The plaintiffs and the defendants were permitted to supplement the original record with respect to this is-' sue, and, as a result, an evidentiary hearing consuming 27 days of the court’s calendar was held. As a result of the supplemental hearing, the record on the issue of segregative intent more than doubled. Approximately 65 witnesses testified at that hearing and almost 1,000 new exhibits were admitted in evidence. ■ These included a complete set of the verbatim minutes of the Milwaukee School Board and its committees for the last twenty-five years, consisting of more than 490 bound volumes. Some of this new evidence dealt with matters not considered at the original trial. Other evidence presented at the supplemental hearing refined, and explained in greater detail, matters covered by the Court’s January 19, 1976, decision. Still other evidence contradicted some of the findings contained in the Court’s original decision. At the conclusion of the evidentiary hearing held pursuant to the remand, the Court requested the parties to submit proposed findings of fact and conclusions of law on the issue of the presence or absence of discriminatory intent in the defendants’ actions, and the Court informed the parties that those specific findings would be adopted which are supported by the evidence even though the specific findings do not support the general findings and conclusions reached by the Court. Thus, both specific findings relating to the presence or absence of intent and the general conclusions as to intent to be drawn from those findings are presented. This procedure is pointed out because in the appeal from the original decision finding the defendants liable for discrimination against the plaintiffs, the Seventh Circuit noted that there existed “an unexplained hiatus between specific findings of fact and conclusory findings of segregative intent.” Armstrong v. Brennan, 539 F.2d at 636. The Seventh Circuit was rightfully concerned with a seeming contradiction between this Court’s earlier conclusion that the defendants generally followed their policy, known as the “neighborhood” school policy, and the Court’s conclusion that the defendants acted with discriminatory intent. However, the record in this court contains numerous contradictions in the evidence. These contradictions, which are reflected in the specific findings of fact below, are caused by the fact that the defendants did not act with malice or a deliberate policy of overt separation óf the races from all contact with each other in the school system. In fact, over the 25 years covered by these findings, black teachers have taught white children in white schools and white teachers have taught black children in black schools; black children have attended white schools and white children have attended black schools; white students have been intact bussed separately and together with black students; after the open transfer policy was adopted, black students have been free to transfer to any school in the system; and a number of members of the board of directors of the Milwaukee Public Schools (hereinafter “MPS”) and many citizens of the City of Milwaukee over the years have been staunch advocates of increased integration within the system. Therefore, it is not an easily discernible picture of relentless discriminatory intent that emerges from the evidence of the defendants’ words and conduct over the years, and there are contradictions in the evidence. While this Court is convinced beyond any doubt that the evidence compels the finding that the defendants acted with discriminatory or segregative intent, this Court, at the risk of instigating further hiatuses, believes that its decision should also contain those specific findings of fact which indicate that the defendants were not always motivated by a discriminatory intent, and such findings are included within each specific area of findings below. The findings and conclusions made in this decision are supplemental to those contained in the Court’s original decision and generally are in harmony with those findings, but where they are not, it is specifically noted otherwise. In case of a conflict, however, between the findings and conclusions of the first decision, and the findings and conclusions of this decision, the later ones are intended as controlling. The terms and symbols used in this decision bear the same definitions they were given in the original decision. The format chosen by the Court for presentation of these findings of fact and conclusions of law is one in which the findings are numbered consecutively, with each number being preceded by the designation “F”, while the conclusions of law are numbered consecutively in a separate sequence, with each number being preceded by the designation “L”. II. The Applicable Law L-l. The basic propositions of law applicable to this case are as follows. Village of Arlington Heights requires that before a violation of the equal protection clause of the constitution can be found, the action that is claimed to be violative must be shown to have been performed with an intent to discriminate. This discriminatory intent need not be the sole purpose nor the dominant purpose; it need merely be one of the purposes motivating the alleged discriminator. The issue of the presence or absence of discriminatory intent is one of fact, but the proper method of proving such intent has not been established by the Supreme Court, although several probative considerations were listed in Village of Arlington Heights. It is therein indicated that a disproportionate impact of a lone official action accruing to the disadvantage of one race does not without more establish the requisite intent and does not amount to invidious discrimination. With this much of the law the parties are in agreement. However, as to the specific application of these basic propositions of law, the parties have reached opposite conclusions. The plaintiffs’ position is that intent, being an element of the prima facie case of many different common types of actions, i. e., criminal law and intentional torts, may be proved in court in a race discrimination case in the same manner that intent is proved in those other actions. Since direct evidence of a mental state, i. e., intent, is difficult to obtain, reasonable, circumstantial, or indirect evidence may be relied upon to prove the intent. The most common and perhaps the most reliable type of indirect evidence of intent is to examine the consequences of a party’s actions to determine whether or not those actions were foreseeable by the party. If the consequences were foreseeable, a strong inference arises that the party intended to bring about those consequences unless other circumstances indicate that such was not the party’s intent. Moreover, the inference that a party intends the natural and foreseeable consequences of his actions is so strong that it has been said to amount to a presumption of intent. The defendants take exception to this analysis of the intent issue. Although they do not deny that the factor of foreseeability is a relevant consideration for determining the intent with which an action is performed, their argument is that foreseeability is of only the most minimal probative value and is, for all practical purposes, to be disregarded entirely. Intent, the defendants argue, may properly be proved only through consideration of the factors listed in Village of Arlington Heights. Thus, the defendants’ position is that the plaintiffs may not prove intent by establishing that increased or continued segregation was the natural and foreseeable result of the defendants’ actions, and no presumption or inference of discriminatory intent arises from proof that the segregation was the foreseeable result. L-2. There are, however, two flaws, flaws which the defendants seemingly believe trivial, in the defendants’ position: (1) it is wrong; and (2) every court in the country that has considered the defendants’ position has rejected it. The post-Village of Arlington Heights courts which have considered the question of the proper method by which discriminatory or segregative intent is to be proved have uniformly determined that a presumption that an actor intended to bring about the results of his actions arises when it is shown that those results were the natural and foreseeable consequences of the actions. See Arthur v. Nyquist, 573 F.2d 134 at 141-143 (2d Cir. 1978); N. A. A. C. P. v. Lansing Board of Education, 559 F.2d 1042, 1046-48 (6th Cir. 1977), cert. denied 434 U.S. 997, 98 S.Ct. 635, 54 L.Ed.2d 491 (1977); United States v. Texas Education Agency, 564 F.2d 162, 167—69 (5th Cir. 1977); United States v. School District of Omaha, 565 F.2d 127, 128 (8th Cir. 1977), cert. denied 434 U.S. 1064, 98 S.Ct. 1240, 55 L.Ed.2d 765 (1978); Reed v. Rhodes, No. C73 1300 (N.D.Ohio 1978) (slip op. at 10); Berry v. School District of Benton Harbor, 442 F.Supp. 1280, 1290-94 (W.D.Mich.1977); and Penick v. Columbus Board of Education, 429 F.Supp. 229, 252 (S.D.Ohio 1977). L-3. This view of the Village of Arlington Heights requirement of intent as permitting proof through examination of objective circumstances rather than subjective state of mind has been adopted by at least one judge of the Seventh Circuit Court of Appeals in dicta. His language bears quotation at length: “It is clear, therefore, that discriminatory purpose for constitutional analysis is to be gleaned not from individual officials but from the relevant governmental institutions. As a subjective test would be impossible to apply in such circumstances, the courts are driven to adopt an objective criterion in determining whether the challenged state action is imbued with a segregative intent or purpose. Such a criterion must include an examination of the institutional policy that underlies the action. (By ‘policy’ we mean a deliberate course of action, selected among alternatives, that is deemed advantageous or expedient.) We agree with the Sixth Circuit when it said: A presumption of segregative purpose arises when plaintiffs establish that the natural, probable, and foreseeable result of public officials’ action or inaction was an increase or perpetuation of public school segregation. The presumption becomes proof unless defendants affirmatively established that their action or inaction was a consistent and resolute application of racially neutral policies. NAACP v. Lansing Board of Education, 559 F.2d 1042, 1046-47 (6th Cir. 1977), quoting Oliver v. Michigan State Board of Education, 508 F.2d 178, 182 (6th Cir. 1974). “Thus if plaintiffs establish either that the governmental action or inaction under scrutiny does not further the governmental policies or that the government ignored less segregative options which would have furthered its policies as effectively as the more segregative option it chose, see Armstrong v. Brennan, 539 F.2d 625, 636 (7th Cir. 1976), then a prima facie case of discriminatory intent or purpose has.been made out. This inference is justifiable because governmental institutions must be presumed to have knowledge of the natural and foreseeable- consequences of their action or [sic] inaction, and because there are rarely significant nonracial reasons for preferring a more rather than less segregative alternative.” United States v. Board of School Commissioners of the City of Indianapolis, Indiana, 573 F.2d 400, at 413 (7th Cir. 1978) (Judge Swygert) (footnotes omitted). Thus a presumption of discriminatory intent arises from a showing that increased or continued racial segregation was the foreseeable result of official action or inaction that did not further avowed governmental policies or that ignored less segregative options which were equally consistent with governmental policies. The defendants argue that the decisions allowing discriminatory intent to be established through proof of foreseeability are incorrect. With this I do not agree. To show why this Court has determined to follow precedent in this case, the defendants’ arguments will be addressed in turn. First, the defendants maintain that allowing a prima facie case of discriminatory intent to be established through the concept of foreseeability of segregative impact eliminates the distinction between de facto segregation, for which no constitutional violation may be found, and de jure segregation which does amount to a constitutional violation. De facto segregation is that which is the adventitious result of individual decisions or governmental decisions made without any purpose or intent of causing segregation, while de jure segregation is that which is the intentional result of official action or inaction. The differentiating factor is intent to discriminate or to segregate. Keyes v. School District No. 1, 413 U.S. 189, 208, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). The defendants argue that allowing a presumption of intent to arise from mere proof of foreseeability means that a plaintiff need only introduce proof that a racial imbalance in a school system exists for a finding of a constitutional violation to be made, which eliminates the de facto-de jure distinction. L-4. However, the de facto-de jure segregation distinction does remain where a plaintiff is allowed to prove intent through reliance upon the concept of foreseeability. More than a mere showing of a racial imbalance is necessary for the establishment of a prima facie case of discrimination; that imbalance must have been caused by official action or inaction undertaken with a purpose or intent to discriminate. Intent may be established through the use of the foreseeability concept, but a showing that an imbalance exists is not the same as a showing that the imbalance was foreseeable, which is what may be used to show intent. Establishment of the foreseeability of a segregative result of an official action or inaction is an added step beyond establishment that an imbalance exists, and the added step serves to preserve the distinction between de facto and de jure segregation. Moreover, under the view of Judge Swygert of the Seventh Circuit in United States v. Board of School Commissioners of the City of Indianapolis, supra," the official action or inaction from which the foreseeability of segregation is said to arise is action or inaction that does not serve avowed governmental policies or that overlooks less segregative options, and proof of such action or inaction is an additional step beyond a mere showing that a racial imbalance exists. The defendants have further argued that reliance upon the concept of foreseeability of segregation as giving rise to a presumption of intent to discriminate would sound the death knell of the “neighborhood” school policy. The defendants argue that actions taken pursuant to the “neighborhood” school policy inevitably give rise to racial imbalance in the schools due to the prevailing pattern of segregation of blacks and whites in separate neighborhoods, and that racial imbalance is the foreseeable result of action and inaction by governmental officials. L-5. However, the plaintiffs in this action do not contend that the “neighborhood” school policy itself amounts to invidious discrimination between blacks and whites. The “neighborhood” school policy has been upheld as a valid organizational principle for school systems, N.A.A.C.P. v. Lansing Board of Education, 559 F.2d at 1049, despite the foreseeable segregative effect of such a policy. The defendants remain free to follow that policy so long as the policy is applied in a consistent and neutral fashion and is not changed when the racial compositions of school districts change. But, as is shown in section III. C. below, the defendants have failed to apply their purported “neighborhood” school policy in such a consistent and neutral fashion. The third objection raised by the defendants is that reliance upon the concept of foreseeability quickly results in foreseeability being treated as the sole factor relevant to the issue of discriminatory intent in derogation of the factors listed by the Supreme Court in Village of Arlington Heights as being the controlling factors. Whereas the concept of foreseeability greatly facilitates a plaintiff’s efforts to prove discriminatory intent, the Supreme Court intended, according to the defendants, that plaintiffs in school discrimination cases should have a heavy burden of proof to carry and should be required to undertake a detailed and painstaking analysis of each of every action of an alleged discriminator so as to minimize intrusion by the courts into the traditional autonomy of local school boards. L-6. Foreseeability of segregative effects is, of course, not the only factor to be considered in ascertaining discriminatory intent. The other factors listed in Village of Arlington Heights, as an inexhaustive list, are also relevant and, as demonstrated below, have been considered by the Court in finding the facts in this case. L — 7. But the concept of foreseeability has come to play an important role in the context of school discrimination cases due to the vastly different nature of those cases as distinguished from a case like Village of Arlington Heights. Village of Arlington Heights involved a single action taken by a well-defined public body with respect to a single, proposed, potentially integrative project. The action taken by the public body, which was a refusal to rezone a parcel of land so as to allow the construction of low and moderate income multiple family housing, made no changes in the existing zoning scheme and simply continued the long-standing status quo. The impact of the lone action, the exclusion of low-income blacks from the community, was foreseeable, but this isolated segregative impact of the single action had little probative value, and the context in which the decision was made was more probative on the issue of intent. The factual situation of the claimed discrimination in Village of Arlington Heights thus stands in sharp contrast to the factual situation of the present case, wherein hundreds, if not thousands, of decisions have been made by a public body with a changing membership and by an administrative bureaucracy with changing officials over a period of more than a quarter century, decisions which continually changed the status quo and had direct effects upon racial imbalances. The problem of proving intent in the present case is further complicated by the defendant officials’ and school board members’ ability, due to the vague nature of many of the policies raised in this case, such as the “neighborhood” school policy, to formulate a seemingly non-discriminatory plausible reason for almost every challenged action. Under these circumstances, to limit the available evidentiary tools to the Village of Arlington Heights factors alone would be' to impose an impossible burden of proof in most school desegregation cases. L-8. Thus, reliance upon the concept of foreseeability of segregative results is mandated not only by the logical relevance and probative value of that concept as to the issue of the defendants’ institutional intent, but also by the necessity of allowing alleged victims of discrimination an opportunity to prove their claims. While one may wonder if the Supreme Court in fact is intending to terminate, sub silentio, this chapter of our nation’s history involving the desegregation of “northern” schools by imposing an insurmountable burden of proof upon the plaintiffs in such cases, I have concluded that the Supreme Court has not done this and therefore the concept of foreseeability is still relevant to determining whether or not the actions of school officials were taken with discriminatory intent. L-9. Contrary to the defendants’ assertions, the concept of foreseeability also does not do away with the need for a detailed and painstaking factual and legal analysis of the actions which the plaintiffs claim to be discriminatory. Where an action is challenged, such analysis is still necessary to determine what policy was intended to be served by the action, whether or not the action did in fact serve that policy, and whether or not there were less segregative options to the chosen action that would have served the designated policy equally well. Such analysis is further required to apply the Village of Arlington Heights factors to the specific factual situation. Moreover, detailed analysis is also necessary when, as in most instances, the defendants have presented to the court justifications for the actions which they have taken. The findings of fact below embody the type of analysis advocated by the defendants. L-10. From this discussion the conclusion follows that the court may properly consider as indicative of discriminatory purpose or intent the actions or inactions by the defendants which had the natural, probable, and foreseeable effect of segregating blacks from whites in the Milwaukee Public School system. That foreseeable effect gives rise to a presumption or inference of discriminatory purpose or intent upon a showing by the plaintiffs that the defendants’ action or inaction did not further asserted governmental policies or that the government ignored less segregative options which would have furthered the asserted governmental policies equally as effectively as the chosen action or inaction. ,-The presumption becomes proof unless the defendants show that their action or inaction was a consistent and resolute application of racially neutral policies. L-ll. As a final legal matter, the parties have also differed over whether or not a finding of intentional discrimination as to one part, activity, or function within the MPS system may inferentially support a finding of intentional discrimination in another part, activity, or function. The court believes that a finding of intentional discrimination in one part, activity, or function does infer that other actions were taken with a similar intent, if the area in which the original discrimination is found is a substantial and not isolated part, activity, or function of the school system. Allowing the inference of discriminatory intent to arise in one area after it has been proved in another area is similar to the Supreme Court’s approval in Keyes v. School District No. 1, 413 U.S. at 198-205, 93 S.Ct. 2686, of the inference that one geographic area of a school district was subjected to state-imposed segregation where intentional segregation in another geographic area was proved. That intentional discrimination occurred within one range of the defendants’ activities is logically relevant, though not conclusive, to a finding of discrimination as to another range of activities. Additional conclusions of law are presented below in conjunction with the specific findings of fact. III. Three General Matters Pertaining to Intent A. The Previous Direct Evidence of Discriminatory Intent In the remand hearing on the issue of the presence or absence of discriminatory intent in the defendants’ actions, the court has been presented, as indicated in greater detail in the specific findings of fact below, with a large quantity of indirect or circumstantial evidence of discriminatory intent, such as the inference of intent to discriminate that arises from a finding that segregation of the races was the natural and foreseeable result of the defendants’ actions, as well as with direct evidence of discriminatory intent, such as the statements of various MPS administrators and board members. Such direct evidence in the form of statements from governmental officials is among the probative factors listed in Village of Arlington Heights. F — 1. A number of out-of-court statements from school board or administrative personnel were introduced at this new hearing, statements indicating a generally low regard for the customs and traditions of members of the Negro race as perceived by those officials. However, as to the issue of discriminatory intent, the most probative direct evidence of the intent with which the myriad decisions for the operation of the MPS system were made over the years remains the testimony relied upon by the court in the original decision in this case. The finding that was made based upon that testimony is set forth below and specifically readopted herein: F — 2. “The question of intent, purpose, and motivation has not been a serious problem in this case because school authorities were so straight-forward, honest, and direct in their testimony at trial. The Superintendent of Education, Dr. Richard P. Gousha, and the Assistant Superintendent of Education, Dr. Dwight Teel, testified in essence that the Board of School Directors of the City of Milwaukee and its administration is, [sic] and has [sic] been since 1950, unalterably opposed to any form of forced integration and, from an educational point of view, does [sic] r.ot believe in any substantial racial integration in the schools at this time. They further testified that neither the Board nor the Administration has ever in any significant way knowingly cooperated with any policy, program, or law, either federal or state, which had as its objective the integration of the races. They indicated that the school authorities in the past twenty years had not committed an act or adopted a practice that ever resulted in the significant integration of the schools. The superintendent stated that if the system was integrated, most of the whites would move out of the city and resegregation would follow. In taking this position, he argued that school officials were not motivated by a desire to discriminate against blacks but by an interest in a quality education for each child and a belief that this could not be accomplished in an integrated system.” Amos v. Board of Directors, 408 F.Supp. at 819. The direct evidence thus again supports the finding that the defendants did act with a purpose or intent to cause invidious racial discrimination. B. The Absence of Any Significantly Integrative Actions F — 3. In the original decision in this case, the Court made the following finding: “There have not been any affirmative actions taken by the Board that have resulted in further integration or substantial lessening of the percentage of black students in any of the system’s schools, nor has the Administration made any such recommendations despite discussions and evaluations by both the Administration and the Board.” Amos v. Board of Directors, 408 F.Supp. at 808. The Court further noted that: “[i]n Milwaukee, none of [the defendants’] decisions ever resulted in any significant or noticeable degree of desegregation in the school system, and practically all of them resulted in greater segregation.” Id. at 820. These original findings are specifically re-approved here as they relate to the issue of intent. The absence of any significantly integrative action provides circumstantial evidence that the defendants intended in fact to segregate blacks. To adopt yet one more verbatim passage from this court’s earlier decision: “It is hard to believe that out of all the decisions made by school authorities under varying conditions over a twenty-year period, mere chance resulted in there being almost no decision that resulted in the furthering of integration.” Id. at 819. F-4. In response to these findings, the defendants have produced at this hearing an “affirmative action index” in which a number of allegedly integrative actions by the defendants are presented. Those actions were stated as follows: 1. adoption of the open transfer policy to aid voluntary integration; 2. adoption of a minority recruitment program for Milwaukee Trade and Technical High School; 3. creation of Jackie Robinson Junior High School as an alternative junior high school with a racial balance requirement for the makeup of the student body; 4. adoption of a program to study schools which are approaching a 25% minority pupil population so as to prevent racial imbalance from occurring at these schools; 5. placement of a certificate of overload on Riverside High School to halt transfers into or out of the school so as to prevent further racial change; 6. establishment of a special committee on human rights; 7. approval of the teacher/pupil learning center at Jefferson School with racial balance requirements; 8. adoption of the statement on Education and Human Rights indicating that the Board is committed to promoting integration; 9. adoption of a policy on educational alternatives concerning high schools unlimited and options for learning, which programs formed the basis for the creation of specialty schools which draw students from the entire city. In addition, the defendants have argued that adoption of a minority teacher recruitment program and a program for balancing the teaching staffs of schools and the adoption on March 14, 1978, of a plan for pursuing voluntary integration are additional examples of integrative action by the defendants. A closer examination of these “affirmative actions”, however, reveals that the above-quoted reiteration of this court’s earlier finding of fact remains valid. F — 5. None of these actions by the defendants had any significant integrative effect and all were consistent with the defendants’ policy of insuring that white students were not compelled to attend school with large numbers of blacks. The adoption of the open transfer policy did have the effect of dispersing blacks to certain predominantly white schools, but as indicated in section VI below, the open transfer policy was primarily used by whites to escape schools that were black or that were becoming black and such usage of the transfer policy had the implicit endorsement of the defendants. The minority recruitment program for Milwaukee Trade and Technical High School was a program that sought only volunteers, and there is no indication that the program achieved any degree of successful integration. Similarly, the creation of Jackie Robinson Junior High School,' the creation of the Jefferson School Learning Center, and the adoption of the programs called “high schools unlimited” and “options for learning” to establish specialty schools were no more than voluntary programs that did not violate the defendants’ desire to shield white students from having to attend black schools. Moreover, there is also no indication that these programs achieved any successful degree of integration. As to the adoption of the plan to stabilize schools approaching the 25% black level and the placement of a certificate of overload on Riverside High School, the defendants have argued that both transfers in and out of such schools were halted. However, Lorraine Radtke, a member of the Board of School Directors, testified that in reality only transfers of blacks into such schools were barred; whites remained free to transfer out, which again is consistent with the defendants’ objective of not requiring white students to attend schools with large numbers of blacks. The creation of the special committee on human rights and the adoption of the statement indicating a commitment to promoting integration have not been shown to have had any integrative impact at all on the defendants’ school system. The defendants’ minority recruitment program did result in increasing the number of MPS black teachers, but the findings presented in section IV below indicate that the teachers were diseriminatorily assigned to predominantly black schools and were not used for balancing the teaching staffs of schools. Lastly, the defendants filed their March 14, 1978, plan for integration for the year 1978-79. The Court is not presently in a position to evaluate this plan as it was not the subject of analysis at the hearing. F-6. The majority of these actions were taken only in relatively recent years and relate to a period of time later than that to which most of the evidence of discriminatory intent in this case relates. F — 7. Therefore, the Court finds that the defendants’ purported affirmative actions do not establish that the defendants have not been motivated by an intent to discriminate. C. The “Neighborhood” School Policy In the decision of January 19, 1976, this Court stated: “The Board has consistently and uniformly adhered to a ‘neighborhood school policy’ first developed in 1919 * * * . The policy has controlled the allocation of students among the schools in the system for attendance purposes, except as to students who have voluntarily transferred from their neighborhood schools pursuant to the Board’s free transfer and open transfer policies * * * and except for certain special educational programs.” Amos v. Board of Directors, 408 F.Supp. at 780. This Court also stated: “This central policy has been supported through the years by most Board members and has been of decisive importance in a host of decisions concerning how and where students were and will be educated, including decisions with respect to new school site selection and construction, school remodeling, school building additions, and action taken to meet the increased crowding in the schools during the 1950’s and early 1960’s.” Id. at 781. F — 8. Evidence presented at the remand hearing has indicated that those findings by the court were in error, although the error was actually more one of emphasis than strict fact. The evidence at the remand hearing established that the “neighborhood” school policy was in fact a very vague and flexible general guideline that provided no more than a starting point for analysis in the defendants’ decision-making process over the years. The “neighborhood” school policy as it has been interpreted and applied by the defendants did not mandate a single preordained solution to every problem that arose; rather, it permitted a wide range of solutions to the defendants’ problems over the years and the defendants felt no compunction in departing from the hazy decisional guidelines provided by the “neighborhood” school policy. F-9. As was stated in this court’s earlier decision, “[t]he essence of [the ‘neighborhood’ school] policy has been the assignment of students to schools within reasonable geographic distances of the students’ residences.” Amos v. Board of Directors, 408 F.Supp. at 780. Yet, the evidence at the remand hearing indicates that this basic aspect of the policy did not provide any automatic decisional rules. The defendants’ proposed districting for the planned Elm Junior High School, wherein white students living near to the planned school were to be assigned to a farther away school while blacks from significant distances away were to be assigned to Elm, see finding F-87 below, illustrates the flexibility with which the policy could be applied. The policy did not mean that a student attended a school closest to his home. It did not mean a definite maximum walking distance for a student. It did not mean that each school, whether elementary, junior or senior high, would have the same grade level organization. It did not mean that all students would be able to walk to school. It did not mean all schools would be the same size. It did not mean that elementary schools would feed into the closest junior or senior high school. It did not even have the same meaning for all of the school board members and administrators in the Milwaukee Public School System. It did not pre-ordain any decision with regard to school attendance, school siting, school building addition, schools to which students would be bussed, whether there should be a student transfer policy and, if so, what kind of policy should be permitted, or whether to use mixed or intact bussing. It had no relationship to teacher assignments. F-10. Not only did defendants have great flexibility in administering their “neighborhood” school policy, but they also instituted programs deviating from the goal of having students walk to school. These deviations, each of which drew students from more than one district, included the free and open transfer system, establishment of a city-wide specialty high school, establishment of a superior ability program, and grade reorganizations sending children to “nonneighborhood” schools. Moreover, when the core area schools became crowded, the defendants bussed students to “non-neighborhood” schools, rather than increasing class sizes or teaching students in shifts, as would have been consistent with a “neighborhood” school policy. Thus, the “neighborhood” school policy was never interpreted by defendants so as to interfere with their desired educational programs. It was only when the possible application of prior practices threatened to create a situation where white children would be assigned to attend schools also attended by large numbers of black students that the defendants determined that the “neighborhood” school policy dictated some other course of action, a course which fostered racial separation in the school system. L-12. Throughout the history of this desegregation case, the defendants have time and again, with regard to nearly every specific official action challenged by the plaintiffs, wielded the “neighborhood” school policy as a shield of perceived talismanic strength in warding off liability for discrimination. Their claims are that their actions were simply neutral applications of that overriding policy and that their flexibility in applying the policy cannot be taken as evidence of discriminatory intent. However, the significance of that flexibility is not that by itself it shows discriminatory intent, but rather that the flexibility undermines the basis of the defendants’ reliance upon that policy as providing a defense to the discriminatory actions charged against them. The existence of that flexibility shows that the defendants’ discretion in individual actions, such as boundary changes, was not significantly circumscribed. F — 11. A neighborhood school policy did not mandate a segregated system in Milwaukee. The segregation of the system was mandated by the defendants who controlled the MPS system and are now seeking to take refuge for their unconstitutional conduct in that amorphous haven, the “neighborhood” school policy. IV. Faculty Assignment A. The Statistics Reflecting Teacher Segregation F-12. Prior to the Court’s January 19, 1976, decision, most black teachers employed by MPS taught in schools with predominantly black student bodies. The disproportionate representation of blacks on the faculties of schools having a high percentage of black students is not a recent phenomenon, as the information set forth below indicates: (a) During the 1950-51 school year, the first school year for which statistical data concerning the racial distribution of teachers appears in the record, less than 6% of all MPS students were black, and nine of the system’s 1,749 teachers were black. Eight of the black teachers were assigned to elementary schools, and all eight of them taught at the only two elementary schools in the system whose student populations were over 90% black. These two schools then accommodated more than half of the system’s black students. The system’s one other black teacher was assigned to the only junior high school in the system which had a majority black student population. This junior high school was attended by approximately 60% of the system’s black junior high school pupils. (b) During the 1960-61 school year, black students constituted approximately 16% of all MPS pupils, and 193 (or approximately 6%) of the system’s 2,871 teachers were black. Approximately 83% of these black teachers were assigned to schools whose student bodies were majority black, and about 64% of the black teachers taught in schools having student populations of more than 90% black. More than 82% of the system’s black pupils were then assigned to majority black schools, and approximately 56% of MPS’s black students attended schools which were over 90% black. (c) During the 1965 — 1966 school year, approximately 23% of the system’s pupils were black, and 480 (or approximately 13%) of the 3,724 MPS teachers were black. Of the black teachers, 82.9% taught in the schools whose student bodies were majority black, and 67.9% taught in schools which were more than 90% black. Milwaukee’s majority black public schools were then attended by more than 84% of the system’s black students, and approximately 64% of the system’s black students attended schools which were over 90% black. (d) During the 1972 — 73 school year, when almost one-third of the system’s pupils were black, about 800, or almost 15% of the system’s teachers were black. Of these black teachers, 79% were assigned to schools with majority black student enrollments. Moreover, 72.55% of the black secondary teachers and 80% of the black elementary teachers were assigned to schools which had pupil percentages exceeding 80% black. More than 80% of the system’s black students then attended schools which were more than 50% black, and more than 75% of the black students attended schools which were over 80% black. The defendants have opposed this finding on a number of grounds. First, they have questioned the accuracy of most of the statistics by arguing that the source of the statistics, exhibit 405, was the report of a biased expert operating in conjunction with organizations formed for the purpose of promoting integration in the public school system. The Court agrees that there is a possibility of unconscious bias in the statistics, but the possibility of such bias is not so great as to overcome the probative value of the statistics. The defendants have not shown any specific inaccuracies in the statistics or the method by which they were compiled, and the statistics are derived from basic data rather than the conclusions of the report. Second, the defendants have argued that the statistics are misleading in that they reflect no information about how the black teachers covered in the statistics came to be assigned to the particular schools at which they were teaching at the time periods covered by the statistics. This argument also does not impeach the validity of the statistics, for regardless of how the teachers came to be assigned to the particular schools, the statistics still reveal a pattern of substantial racial separation of teachers. As such, the statistics offer probative evidence of discriminatory intent on the part of the defendants. Washington v. Davis, 426 U.S. 229, 253, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), (Stevens, J., concurring). The defendants’ argument that the black teachers were segregated as the result of their own desires to teach near their homes is rejected in subpart B below. Third, the defendants argue that the statistics do not show that black teachers have been barred from teaching in white schools. The defendants are correct. However, this lawsuit has never been premised upon a claim that the defendants engaged in such comprehensive discrimination that all blacks were kept apart from all whites. Rather, the issue is whether the defendants’ actions or inactions have been discriminatory in that they have attempted to keep black teachers from teaching in substantial numbers anywhere but in predominantly black schools and that black teachers have been assigned to predominantly black schools in the belief that black teachers are more appropriately suited for teaching black students. Thus, the fact that there were some black teachers assigned to predominantly white schools does not undercut the statistical showing of racial imbalance on teaching staffs. Nevertheless, in the interests of compilation of a complete record, the Court also adopts the following finding of fact which the defendants believe shows that there was no intent to keep black teachers out of white schools. F-13. In 1965, there were 6 blacks teaching in 0% black schools, 37 in .1 — 10% black schools, 24 in 11-30% black schools, and 15 in 31 — 50% black schools. In 1966, nonwhite teachers were assigned to 42 schools outside the central city. In 1967, the staffs of nearly 50% of the 155 schools included black teachers. In 1969-70, there were 31 black teachers in elementary schools with student bodies less than 10% nonwhite, and 11 in those schools in the 10-50% black category. One or more black teachers were in 71 of the system’s 127 elementary schools. During this year, there were 17 black teachers in secondary schools with student bodies less than 0-10% black and 4 in those schools in the 10-50% black category. One or more black teachers were in 29 of the system’s 33 secondary schools. By 1970-71, there were 683 black teachers in the system, and 117 of the schools had integrated faculties with all secondary schools having integrated faculties, except for one junior high school. The trend of the defendants’ system in recent years has been toward increasing faculty integration, but such a trend is more relevant to the matter of the present effects of the defendants’ past discrimination than to the matter of the defendants’ earlier discriminatory intent. F — 14. Despite the trend of the statistics shown in finding F-13 above, a finding of discriminatory intent on the part of the defendants during the period covered by this lawsuit is supported by the figures on the racial compositions of teaching staffs of identifiably black schools. B. Teacher’s Placement Preference, the Teacher Shortage, and the Collective Bargaining Agreement Seniority-Provisions In explaining their teacher hiring and assignment personnel policies, the defendants have strenuously and repeatedly relied upon three concepts to negate any implication of segregative intent that might arise from the severe racial imbalances that existed during the period involved in this case on the staffs of Milwaukee public schools. First, the defendants maintain that black teachers in both initial and subsequent assignments valued above all else receiving an assignment to teach at a school near their homes, which homes tended to be primarily in the core area of the city either through prevailing patterns of housing discrimination or through desires to be with “their own people.” Second, the defendants maintain that due to the critical shortage of teachers during much of the relevant period, the defendants were compelled to assent to the black teachers’ requests to be assigned near home, even though such assignments dashed the defendants’ purported wishes to achieve a greater racial balance of teachers throughout the system. Third, the defendants claim they were further barred from correcting the racial imbalances on teaching staffs by the strict seniority transfer provisions of the collective bargaining agreement with the Milwaukee Teachers’ Education Association (“MTEA”). These purported defenses are rejected by the court. The evidence does not support these theories as the following findings of fact show. F-15. The segregative effect of the defendants’ policies of assigning black teachers primarily to identifiably black schools was clearly foreseeable and gives rise to an inference that the assignments were made with intent to discriminate. The defendants were well aware that blacks lived primarily in the central area of the city and that assigning blacks to schools near the black residences would result in a separation of the races. Discriminatory intent on the part of the defendants is established unless they can show that the assignment of black teachers primarily to schools in the central city area was the result of consistent and resolute application of racially neutral policies. F-16. The testimony does not establish that black teachers generally preferred to be assigned close to their places of residence. The defendants have relied upon the testimony of Clara New, Lauri Wynn, Roberta Wilkerson, Delores Greene, Susan Ellis, LeRoy Freeman, John Jackson, and Connye Robinson, all black teachers. Only New testified that she originally requested an assignment close to her home. Wynn’s testimony was that the most important factor for her in receiving an assignment was the professional interest of the assignment and that location of the assignment was only a secondary consideration. Wilkerson did not testify that she ever requested an assignment close to her home, and her testimony that she was treated “beautifully” is irrelevant to the issue of whether or not black teachers did in fact request assignments close to home. Greene did not testify that she initially requested assignment close to home, although she did state that she later requested a re-assignment closer to home. She was told by school administration personnel that she would probably find housing in the core area and that she would be assigned after she found housing. Ellis did not testify on the matter of where black teachers were assigned. Freeman and Robinson did not testify that they ever requested assignment close to their residences, and in fact, they received their assignments before they had even moved to Milwaukee and found residences. Likewise, Jackson did not testify that he preferred to be assigned close to his home. Peter Brem, a former Executive Director of Teacher Personnel for the system, did testify that one of the first questions asked by all applicants for. teacher positions was to inquire where they would be teaching if they accepted a position in Milwaukee. This testimony, however, does not in any way establish that new teachers, particularly blacks, were primarily concerned with receiving assignments close to their residences. F-17. No black teacher testified that he was given a choice in initial teaching assignment of teaching in a predominantly white school or a predominantly black school nearer to his home. F — 18. Despite the teacher shortage during the 1960’s, no teacher, black or white, testified that he would have refused employment with the Milwaukee system if he would have been refused a requested assignment near his home. F — 19. The defendants did not consistently apply a policy of assigning teachers close to their homes. The testimony of Donald Feilbach, a former MTEA president, and James Colter, Executive Director of the MTEA, shows that white teachers were frequently given initial assignments substantial distances away from their homes. Moreover, a study prepared under the auspices of the Milwaukee Urban League found that many black teachers lived on the periphery of the core area or in more outlying parts of the city yet were assigned to teach in the core area. The same study also indicates that 80% of the teachers surveyed used a privately owned automobile to travel to and from teaching, which indicates that the distance between home and teaching assignment would not be a primary concern for black teachers. The defendants have attacked this study as not taking into account where the surveyed teachers lived at the time they received their initial assignments. However, the study is entitled to some weight, for whether or not it pertains to initial or subsequent assignments of teachers, it still indicates that distance between home and assignment was not the main concern of black teachers. F-20. The statements of a number of school administration officials provide direct evidence that the defendants were engaging in intentional discrimination against black teachers in teacher assignments, and the result of these placement practices— most black teachers teaching in schools having a large black student population — was not inconsistent with the Administration’s view of which teachers would best serve the needs of individual schools. Olga Schlueter, who in 1965 was Executive Director of MPS’s School Teacher Personnel Department and had been in that department since 1956, told a newspaper reporter that, in assessing a school’s needs, it was often felt that black teachers were most needed in schools having black pupils. Moreover, in 1967, Harold Vincent, who had been Superintendent of Schools since 1950, admitted to Donald Feilbach, then MTEA president, that there had been a practice of assigning black teachers to schools with black students. Feilbach testified: “He [Vincent] said that they had been doing it because he thought it had been the proper thing to do in the best interests of the teachers and the students, and that he felt now that it had perhaps been a mistake.” Feilbach also testified that Vincent told him that Vincent had mistakenly believed that black teachers could best serve black students. Other statements in the record further indicate that MPS officials felt that black professionals could be best utilized on the staffs of schools having large black populations. These statements, together with the clear pattern of teacher segregation persisting since at least 1950, indicate that school officials intended to and did place most black teachers in those schools attended by most black students. This segregative intent provides the only credible explanation for the racial concentrations noted above. Such statements are examples of the application of impermissible racial stereotypes in the process of teacher assignment and provide direct evidence of discriminatory intent by the defendants. Brem’s memorandum entitled “A Look at a Big-City School Problem”, exhibit number 1442, is particularly probative of the defendant’s intent to maintain racial segregation out of a belief that blacks generally are different and not yet ready to mix with whites. Discriminatory intent is inherent in such statements. The defendants have argued that these statements should not be given any weight by the court because some of them were made quite a long time ago, some of them were made to a newspaper reporter and are thus likely to be relevant only in the context of the particular questions asked by the reporter, and some of them were made by parties whose views cannot be ascribed to the defendants. However, the court believes that these statements by administration officials are entitled to weight. It is true that some statemeiits were made to a newspaper reporter, but the statements continue to remain credible in light of the fact that no requests for retractions of the ascribed statements were ever made to the reporter by the speakers and that the statements are consistent with one another and with other indications of the administration attitude, such as the above-mentioned Brem memorandum. The statements by Vincent were made a long time ago, but the witness who heard the statements testified that they made a great impact upon him, which indicates that the witness is entitled to belief. Lastly, the defendants have argued that a statement, not specifically mentioned above, by Orrin Wang may not be relied upon since he was not associated with the defendants’ teacher placement personnel office. However, Wang was the head of a department assigning other personnel to schools, and as such his statements may be relied upon. F-21. The defendants were not significantly restricted in the assignment of teachers by a seniority agreement with the MTEA until the collective bargaining agreement for 1968 was adopted. MTEA officials testified that while some earlier collective bargaining agreements did contain some restrictions based upon seniority, the first effective seniority agreement was contained in the 1968 contract. An examination of the seniority provisions of the 1964 contract, the one that the defendants maintain took away their discretion in the assignment of teachers, contained in exhibit 1017 at 139-154, reveals that they are significantly weaker than the seniority provisions that the MTEA officials testified as being the effective provisions, contained in exhibit 1021 at 319. The defendants were not significantly restricted by the 1964 collective bargaining agreement from achieving a lesser degree of racial imbalance in the teaching staffs of the school system. F-22. The final report of the Wisconsin Legislative Council’s Advisory Committee on the Report of the National Commission on Civil Disorder (The “Little Kemer Commission”) concluded in 1969, that most black teachers in the Milwaukee system have been assigned to predominantly black schools. The defendants have attacked this report as being both inadmissible hearsay and unreliable. However, as the report of an officially commissioned governmental organization, the report is admissible pursuant to Rule 803(8XB) or (C) of the Federal Rules of Evidence, and the defendants’ reliability argument that the report fails to inquire into how the black teachers came to be assigned to the black schools does not diminish the report’s conclusion that black teachers were indeed assigned primarily to black schools. F-23. The defendants’ defense based upon the claim that blacks preferred to live near their teaching assignments and upon the claim that the defendants could not assign the black teachers elsewhere due to the teacher shortage and the seniority provisions of the collective bargaining agreement is not supported by the evidence. The court concludes that the defendants were not compelled by circumstances beyond their control to assign black teachers primarily to core schools so as to accommodate the desires of the black teachers to be near home. The defendants retained sufficient control over the teacher assignment process to have achieved a much greater degree of integration than was actually achieved during the period involved in this case. C. The Defendants’ Responsibility for the Segregation of Teachers L-13. A concentration of black teachers in schools having a high percentage of black children is especially probative of school officials’ segregative intent because of the high degree of control that these officials can exercise over faculty placement. See U.S. v. Texas Education Agency, 564 F.2d at 173-174 n. 19, and Reed v. Rhodes, slip op. at 42. Since at least 1949, Wisconsin law has provided that, in Milwaukee, the Superintendent of Schools has the legal responsibility for teacher assignments. See Wis.Stats. § 119.32(5)(1975); Wis.Stats. § 119.09(3) (1967); Wis.Stats. § 38.09(3) (19