Full opinion text
MEMORANDUM OPINION AND ORDER CONTIE, District Judge. On June 3, 1974, nine named students of the Youngstown, Ohio public school system and their parents initiated this action, pursuant to 42 U.S.C. §§ 1981, 1983-1988, and 2000d, to redress the alleged deprivation under color of law of rights guaranteed by the Thirteenth and Fourteenth Amendments to the United States Constitution. Plaintiffs named as defendants the Youngstown Board of Education and its individual members, the Superintendent. of the Youngstown City School District, the Governor of the State of Ohio, the Attorney General of the State of Ohio, the Ohio State Board of Education and its individual members, and the Superintendent of Public Instruction, Ohio Department of Education. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1331(a), and 1343(3) and (4). In their complaint, plaintiffs assert that the State defendants by their action and inaction have effected segregation on the basis of race in the Youngstown public school system in violation of the Fourteenth Amendment to the United States Constitution and Article 1, Section 2 of the Ohio Constitution. Specifically, it is asserted that these defendants acting through subunits of state government have engaged in practices which have had the foreseeable and actual effect of incorporating into the school system private residential, racial discrimination. It is further contended that the State defendants have allocated educational resources in a manner that has resulted in racial discrimination in the provision of school facilities and other resources, and in the establishment and maintenance of a pattern of racially separate schools. With regard to the Youngstown school defendants, plaintiffs essentially allege that these defendants acting under color of state law have in the past pursued and are presently pursuing policies and practices in the operation of the Youngstown public schools with the purpose and effect of perpetuating a segregated school system. Such racially discriminatory practices and policies assertedly include the planning and construction of new school facilities, the designation of attendance zones and feeder patterns, the assignment of students and teachers, and the fostering of existing racially discriminatory patterns in public and private housing. Further, it is alleged that the Youngstown defendants have wholly failed and refused to take appropriate action to rectify the foreseeable effects of their asserted policies and practices of discrimination on the basis of race upon the Youngstown public schools. Equitable relief in the form of a permanent injunction is sought. Plaintiffs also request an award of attorneys’ fees and the costs incurred in prosecuting this action. Both the Youngstown defendants and the State defendants have essentially denied the allegations of the complaint. Plaintiffs, having initiated this action in their own behalf and on behalf of all persons similarly situated, moved the Court on July 2, 1976, to certify the within action as a class action under Rule 23(b)(2), Federal Rules of Civil Procedure. By Order of July 26, 1976, this Court certified “the class of all children attending the Youngstown Public Schools and their parents or guardians” as the class represented by the named plaintiffs. Subsequently, the Court in its Order of December 29, 1976 granted the motion of defendants, the Governor and Attorney General of the State of Ohio, for summary judgment and dismissed them as party defendants. Thereafter, this action proceeded to trial on the issue of liability. The Court duly heard extensive testimony and received numerous exhibits in January and February, 1977. After the trial of this action and submission of the parties’ briefs, the United States Supreme Court, on June 27, 1977, rendered its decision in Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851. Thereafter, the Court directed the parties to file additional briefs in light of this decision. Upon consideration of the entire record herein, the Court enters its findings of fact and conclusions of law as required by Rule 52(a), Federal Rules of Civil Procedure. LEGAL PRINCIPLES More than two decades ago, the Supreme Court declared in Brown v. Board of Education, 347 U.S. 483, 495, 74 S.Ct. 686, 692, 98 L.Ed. 873 (1954), that racially, segregated public educational facilities are inherently unequal and deprive students of the equal protection of the laws guaranteed by the Fourteenth Amendment. The Brown decision was concerned with “the elimination of state-mandated or deliberately maintained dual school systems with certain schools for Negro pupils and others for white pupils.” Milliken v. Bradley, 418 U.S. 717, 737, 94 S.Ct. 3112, 3123, 41 L.Ed.2d 1069 (1974). In order to constitute a violation of the Constitution, this duality or racially segregated condition of the public schools must have resulted from discriminatory state action. Swann v. Board of Education; 402 U.S. 1, 17-18, 91 S.Ct. 1267, 1277, 28 L.Ed.2d 554 (1971). As recognized in Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976), the primary purpose of the Equal Protection Clause is the prevention of official conduct which discriminates on the basis of race. Absent a statutorily mandated dual school system, a predicate for finding unlawful state-imposed segregation exists where “school authorities have carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers, and facilities within the school system.” Keyes v. School District No. 1, 413 U.S. 189, 201, 93 S.Ct. 2686, 2694, 37 L.Ed.2d 548 (1973). The burden is upon plaintiffs to prove not only the existence of segregated schools, but also the creation or maintenance thereof by intentional state action. Id. at 198, 93 S.Ct. at 2692. Proof of a racially discriminatory purpose or intent is essential to establish a violation of the Equal Protection Clause. Dayton Board of Education v. Brinkman, 433 U.S. 406, 413, 97 S.Ct. 2766, 2772, 53 L.Ed.2d 851 (1977); Arlington Heights v. Metropolitan Housing Development, 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 239 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976). Racial imbalance in the schools resulting from factors other than official conduct and not within the control of school authorities, such as housing patterns, is alone insufficient to show a deprivation of constitutional rights. Such a condition of de facto segregation is distinguished from de jure segregation by the latter’s requirement of purpose or intent to segregate. Keyes v. School District No. 1, 413 U.S. 189, 208, 93 S.Ct. 2686, 2697, 37 L.Ed.2d 548 (1973). A showing of de jure segregation is necessary to support a finding of a constitutional violation and invoke the Court’s equitable powers to remedy any racial imbalance. See Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977); Higgins v. Board of Education, 508 F.2d 779 (6th Cir. 1974). Essentially, de jure segregation is “a current condition of segregation resulting from intentional state action.” Keyes v. School District No. 1, 413 U.S. 189, 205, 93 S.Ct. 2686, 2696, 37 L.Ed.2d 548 (1973). As set forth in Oliver v. Michigan State Board of Education, 508 F.2d 178, 182 (6th Cir. 1974), a finding thereof requires a demonstration of three key 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.” The crucial element is a racially discriminatory purpose or intent without which there can be no equal protection violation. Washington v. Davis, 426 U.S. 229, 245, 96 S.Ct. 2040, 2050, 48 L.Ed.2d 597 (1976). A determination of the requisite intent is difficult in any legal context, but peculiarly so in school segregation cases where the actions of numerous officials as individuals and as a collective body are subject to scrutiny. Only in exceptional circumstances is a decision of such authorities motivated by a single consideration or dominated by one particular purpose. Arlington Heights v. Metropolitan Housing Development, 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977). However, a racially discriminatory purpose need not be the primary motivating factor in a decision to establish the element of intent; it need only be a factor. Id. at 265-66, 97 S.Ct. at 563. In order to discern whether an invidious discriminatory purpose was indeed a motivating factor in any of the defendants’ decisions or actions, the Court must engage in an exhaustive examination of both the subjective and objective evidence. As stated by the Supreme Court in Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2049, 48 L.Ed.2d 597 (1976): Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. . Nevertheless, we have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. . Thus although the discriminatory effect of official action is a relevant consideration, it is alone seldom determinative of segregative intent absent a clear, otherwise inexplicable pattern. Arlington Heights v. Metropolitan Housing Development, 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977). The Supreme Court in Arlington Heights v. Metropolitan Housing Development, supra, identified several other areas of inquiry appropriate in determining the issue of intent: The historical background of the decision is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes. . The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker’s purposes. . Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. Substantive departures too may be relevant, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached. The legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports. Id. at 267-68, 97 S.Ct. at 564-65. From these objective indicia of official action, the Court may infer the required intent. The authority to infer intent or purpose from the acts or policies of school officials is critical since such are generally the consequence of competing considerations and mixed motivation. This was clearly recognized by the Sixth Circuit Court of Appeals in NAACP v. Lansing Board of Education, 559 F.2d 1042, 1047-48 (1977), as follows: Indeed, it would be difficult, and nigh impossible, for a district court to find a school board guilty of practicing de jure segregation, unless the court is free to draw an inference of segregative intent or purpose from a pattern of official action or inaction which has the natural, probable and foreseeable result of increasing or perpetuating school segregation. Thus while a court may infer segregative intent from the circumstances, the inference is permissible and not mandatory even in cases where segregated patterns exist in fact. See also Higgins v. Board of Education, 508 F.2d 779, 793 (6th Cir. 1974). Where the evidence supports a finding of purposeful segregation as to part of a school system, the burden of proof shifts to defendants. This burden-shifting principle was succinctly enunciated by the Supreme Court in Keyes v. School District No. 1, 413 U.S. 189, 208, 93 S.Ct. 2686, 2697, 37 L.Ed.2d 548 (1973), in the following manner: [A] finding of intentionally segregative school board actions in a meaningful portion of a school system, as in this case, creates a presumption that other segregated schooling within the system is not adventitious. It establishes, in other words, a prima facie case of unlawful segregative design on the part of school authorities, and shifts to those authorities the burden of proving that other segregated schools within the system are not also the result of the intentionally segregative actions. The burden of proof thereby devolved upon defendants can be discharged in either of two ways. Defendants can rebut a prima facie case by showing that “segregative intent was not among the factors that motivated their actions” or that “its past segregative acts did not create or contribute to the current segregated condition” of the schools. Id. at 210-11, 93 S.Ct. at 2698-99. In attempting to meet their burden, school authorities most often rely upon invocation of the neighborhood school policy, and attribute the existence of racial imbalance in the schools to residential patterns and not official action. Standing alone, it is generally accepted that the assignment of students to their neighborhood schools does not violate the Constitution. NAACP v. Lansing Board of Education, 559 F.2d 1042, 1049 (6th Cir. 1977). However, the inoffensiveness of the neighborhood school policy and its viability as a defense can only be determined in the context of its overall application within the school system. In Oliver v. Michigan Board of Education, 508 F.2d 178 (1974), the Sixth Circuit Court of Appeals indicated that an inference of segregative purpose arising from a pattern of official action which foreseeably results in increased or continued segregation becomes proof unless defendants affirmatively show that their “action or inaction was a consistent and resolute application of racially neutral policies.” Id. at 182. The failure of school officials to accurately anticipate the effect on the racial composition of the schools from a racially neutral retention of the neighborhood school policy does not establish the existence of a dual school system, absent a showing of segregative intent. NAACP v. Lansing Board of Education, 559 F.2d 1042, 1049 (6th Cir. 1977). In Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973), the Supreme Court addressed the reliance of school officials upon the neighborhood school policy and firmly stated that: the mere assertion of such a policy is not dispositive where, as in this case, the school authorities have been found to have practiced de jure segregation in a meaningful portion of the school system by techniques that indicate that the “neighborhood school” concept has not been maintained free of manipulation. Id. at 212, 93 S.Ct. at 2699. On the other hand, the Court quoted its earlier observations in Swann v. Board of Education, 402 U.S. 1, 28, 91 S.Ct. 1267, 1282, 28 L.Ed.2d 554 (1971): “Absent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. . . . ” Keyes, supra, 413 U.S. at 212, 93 S.Ct. at 2699. Thus it would appear that where there is no finding of intentional segregation, a neutral neighborhood school policy may suffice to explain defendants’ actions. ANALYTICAL APPROACH Within the framework of the foregoing relevant legal principles, the Court shall proceed to a detailed factual analysis. Before doing so, however, it is essential to briefly outline three factors critical to an understanding thereof. These factors are: the Consolidated Stipulations of Fact; the census maps; and facility utilization. After lengthy discussions the plaintiffs and Youngstown defendants agreed to and filed with the Court on January 4, 1977 a document consolidating the factual matters stipulated to by these parties. Upon review thereof, the Court has found numerous inconsistencies not only within the stipulations, but also between the stipulations and other documentary evidence and testimony. In some instances, the Court has only been able to note the inconsistencies. However, where possible, the Court has determined the actual facts, and has rejected the stipulations not in accord therewith. The Court cannot adopt stipulations that are manifestly in error. Throughout the following factual analysis, the Court shall refer to the census maps introduced into evidence by plaintiffs. These demographic maps show the racial composition of the residential population of Youngstown by census blocks. However, the maps do not show the density of the population in such blocks. Said limitation on the utility of these census maps must be recognized since an area indicated to be 50% to 90% black residentially may in fact contain few residents and thus exercise no appreciable effect on the schools. Alone, the census maps are a general graphic representation of the location within the City of Youngstown of its black population. The third, and perhaps the most important, factor is facility utilization. In discussing the various boundary changes, student assignments, construction of new facilities, and additions to existing buildings, the parties usually referred to the “capacity” of the various schools. However, capacity is a nebulous term which connotes the architectural dimensions of a structure. Such may and often does differ from the actual utilization of a facility by school officials. Whereas according to architectural plans a room may be designed to accommodate a certain number of students, sound educational practice may dictate another result. Thus the Court shall not be concerned with the “capacity” of a school because of the misleading connotation. Rather, the Court shall refer to the “maximum optimum utilization” or the “optimum utilization” of a facility as such was reasonably perceived by the school officials at any point in time. The Court notes that various measures have been employed by the school officials to determine optimum utilization. For instance, the 1952 Report calculates the optimum utilization of elementary schools on the basis of thirty (30) students per classroom and that of secondary schools on the basis of twenty-five (25) students per classroom. (Px 83). On the other hand, the 1964 Report uses a thirty (30) student per classroom measure overall with the exception of special classrooms and specific function rooms such as Study halls and gymnasiums which have their own optimum utilization factor. Further, it appears from the testimony of Dr. Schoenhard that there is no absolute, immutable standard to measure the optimum utilization of a school since the size of rooms and other factors may vary and such dictate the number of students that can be housed therein. Recognizing the foregoing problems, the Court has nevertheless computed the maximum optimum utilization for the schools at various points in time from the data in the record. In view of the limitations previously expressed, and since the base data does not take cognizance of special education and special function classrooms, the Court shall employ such figures as only a general guide to analysis. In determining the maximum optimum utilization of the schools for the years for which utilization data is available in the record, the Court shall use contemporaneous documents whenever possible. Since the Court is concerned with determining intent, and since such documents are generally reflective of the knowledge and motivation that formed a predicate for school action, they must be considered the best evidence thereof. Thus the 1952-53 and 1958-59 maximum optimum utilization figures are derived from the 1952 Report, plaintiffs’ exhibit 83, and are computed on the basis of thirty (30) students per elementary classroom and twenty-five (25) students per secondary classroom. Of course additions to facilities are reflected in the optimum utilization figures. The 1961-62 and 1963-64 maximum optimum utilization figures are calculated on the basis of thirty (30) students per classroom on all three levels. These figures are generally derived from defendants’ exhibits P-1 through P-38. However, there are exceptions such as in the case of the elementary schools feeding East High School; the optimum utilization figures for such schools for 1963-64 are derived from the 1964 Report, plaintiffs’ exhibit 229. From the 1967-68 through 1976-77 school years, the maximum optimum utilization figures used by the Court are those contained in plaintiffs’ exhibit 158. Throughout the factual analysis that follows, the Court has employed charts showing the utilization of the schools and the percentage black student enrollment thereof. A plus (+) figure represents overutilization while a minus (-) figure represents underutilization. The percentage given equals the percentage black student enrollment of the school indicated or the level or system average. Footnotes are also frequently used to explain the maximum optimum utilization of schools where the exhibits provide different figures. These footnotes merely state what is contained in the exhibits and reference to the foregoing explanation is necessary to understand how the utilization figures were calculated. For convenience, the Court has prepared charts illustrating maximum optimum utilization, enrollment, and utilization for 1952-53, 1958-59, 1961-62, and 1963-64. These are contained in the appendix following this opinion. With the foregoing in mind, the Court shall proceed to analyze the actions of the Youngstown defendants in the following areas: new school construction; additions to existing facilities; boundary changes; assignment of students; feeder patterns; optional attendance zones; grade structure changes; and school closings. EFFECTS ANALYSIS The physical dimensions of Youngstown provide for the natural division of the city territory into several sections. This natural division of the city was recognized as long ago as 1921. By resolution of June 14,1920, the Youngstown Board of Education authorized a thorough survey of the city and its schools upon which the building program for the next twenty years might be based. (Px 79). The results of that survey were issued on November 1, 1921 in a published document entitled “A Survey And Building Program For The Youngstown City Schools 1920-1940.” Therein at page 7 it is recognized as follows: Several strong natural features divide the city area into definite and separate school zones, each of which must attain to a complete system of schools for itself in order to conserve the best interest of all the people and the travel time and safety of the children. The primary dividing line was recognized to be the Mahoning River which divides the city into two large units: the north and the south sides of the city. The north side contains two distinct sections separated from each other by Crab Creek and its many railroad tracks. On the south side of Youngstown, four well defined sections were created by Mill Creek and its park, Pine Hollow, and the Southern Railroad and its ravine. Thus as stated in the 1921 Survey, Youngstown is comprised of six distinct zones of area and population to be treated as such in a construction program of schools for the future. Accordingly, the Survey set forth a plan to provide a complete system of schools within each section. (Px 79). The building program devised in 1921 was followed to a great extent by the Youngstown school officials in the ensuing years. Six separate school zones were in fact developed, although not in complete accord with those provided in the 1921 program. Specifically, the separate school zone for that area of Youngstown south of the Mahoning River and east of Pine Hollow did not materialize. It appears according to the Survey that the planned development of this zone was premised, in part, upon the expected annexation of additional territory to the city; this annexation was not achieved. As a consequence, only three zones were developed south of the Mahoning River. North of the river, instead of the two zones planned in the 1921 Survey, a third zone was created. Thus six distinct zones each with their own school plant were created essentially in conformity with the 1921 program. (Px 79). In view of the foregoing, the Court deems it both necessary and proper to analyze the acts and omissions of the Youngstown defendants within the six separate sections of the city. The six separate zones to be studied are derived from the six high school districts in Youngstown. With the exception noted above, this is in accord with the 1921 building program. Thus within the framework of the six high school zones, the Court shall proceed to analyze the acts and omissions of the Youngstown school defendants from 1940 to today. RAYEN ZONE Within the Rayen zone to be discussed below are the following schools: Rayen High School; Hayes Junior High School; and Butler, Elm, Covington, Harding, Jefferson, McKinley, Madison, and Tod Elementary Schools. According to the 1940 census the nonwhite population of Youngstown was concentrated in greatest numbers in two sections of the city. One of those sections was comprised of the area west of Fifth Avenue with the Mahoning River as its south and west boundary. (Px 41). This area was within the Rayen zone. In 1940, Covington Elementary School opened with twenty classrooms to serve an area west of Belmont Avenue, south of Parmalee, and east of Federal Street. (Stip. 114). This facility actually replaced the Covington Elementary School structure in existence since at least 1900. The 1921 Survey described said structure as perhaps the worst school building in Youngstown and recommended its replacement because of its ideal location. (Px 79). ■ The Covington district encompassed an area of Youngstown commonly referred to as the “Monkey’s Nest” and was predominately black in its residential population according to the 1940 census data. Immediately to the north and east of Covington were Elm, McKinley, and Harding Elementary Schools, which schools served areas that were predominately white in their residential population. (Stip. 114). Also in 1940, Rayen High School received an addition of two classrooms and an auditorium. Although Hayes Junior High School was constructed in 1927, the oldest recorded boundary available to the Court is dated July 7, 1945. (Px 249). According to said boundary description, Hayes served students in grades seven through nine. Those ninth graders living west of Fifth Avenue remained at Hayes for the ninth grade while those living to the east of Fifth Avenue went to Rayen High School. Based on the census data discussed above, one of the greatest concentrations of black residents in Youngstown was located west of Fifth Avenue. Thus it would appear that a substantial number of black students remained at Hayes for the ninth grade and did not attend Rayen until the tenth grade. The racial significance thereof, however, cannot be determined since the record does not contain racial data for the Youngstown public schools during the 1940’s. In fact, racial data indicating the racial composition of the school population is not available until the 1952-53 school year.. In 1948, Harding Elementary School received an addition of six classrooms. Thus Harding had a total of eighteen classrooms as a result of this addition. Butler Elementary School had an attendance area which bordered on the Mahoning River and served the section of Youngstown known as the “Monkey’s Nest.” The northern boundary of Butler was expanded in 1949 to include a portion of the Jefferson Elementary School attendance area located west of West Federal Street. Based on the 1940 and 1950 census data as stipulated by the parties, the only portions of Jefferson’s area which were majority black in population were those transferred hereby to Butler. (Stip. 186). The 1950 census map, however, shows that a number of blacks were living east of West Federal Street and thus within the Jefferson district. It would appear that the result of this particular boundary change was to increase the percentage black students at Butler while decreasing that at Jefferson. The true result thereof, however, cannot be readily ascertained in view of the lack of racial data. In 1950 Jefferson Elementary School received the addition of an auditorium. No racial significance can be attached to this action. As stated in the 1921 Survey, with each passing year the expansion of business in the Wood Elementary School area greatly reduced the number of homes and the student population therein. As a result and as recommended in the 1921 Survey and the 1945 Study, plaintiffs’ exhibit 78, Wood was closed in 1951 and a new Elm Elementary School was opened. Wood’s attendance area, which had been bound on the north by Carlton Street, on the east by Crab Creek, on the south by the Mahoning River, and on the west by Market Street and Wick Avenue, was divided into two parts with Wood Street serving as the dividing line. The northern portion of the Wood attendance area was transferred to Elm, while the southern part was transferred to Lincoln Elementary School. (Stip. 147). 1950-51 1952-53 Wood -326 Elm +159 26.4% Lincoln -106 -25 30.2% Total Elementary 20.1% Total System 18.6% According to the stipulations, the 1950 census data indicates that the only sizeable black community east of Fifth Avenue, west of Crab Creek, and north of the Ma-honing River was contained within the former Wood attendance zone. (Stip. 147). The area transferred to Elm contained most of the black students enrolled in Wood. The effect thereof was integrative since, according to the stipulations, the 1950 census data indicates that most of the black residents east of Crab Creek lived within the Lincoln Elementary zone. (Stip. 147). Therefore, to have assigned the northern portion of the Wood district to Lincoln would have served to increase Lincoln’s percentage black students when Lincoln, in all probability, already had a substantial number of black students. However, the precise effect cannot be ascertained due to the lack of racial data for this period. After the 1951 closing of Wood Elementary School, no action was taken in the Rayen zone until 1954 when the southern boundary of McKinley Elementary School was expanded to include the northern part of Elm’s attendance area. (Stip. 189). 1952-53 McKinley +20 0.0% Elm +159 26 .4% Total Elementary 20.1% Total System 18.6% The area transferred thereby was predominately white in its residential population according to the 1950 and 1960 census data. (Stip. 189). This change provided some relief to the overcrowded Elm. However, since there is no evidence of the number of students transferred, no analysis of the adequacy thereof can be made. While this transfer may have been segregative in effect, since a residentially white area was removed from Elm and given to a white school, any inference of intentional discriminatory action cannot be deemed established. The evidence also infers a racially neutral transfer to relieve overcrowding in conformity with the neighborhood school policy. The parties stipulated that the northern boundary of Covington Elementary School was contracted in 1955 to transfer to Jefferson Elementary School an area which was bound on the north by Lexington, on the east by Covington Street, on the west by Federal Street, and on the south by Park and Wick Avenues. (Stip. 202). 1952-53 1958-59 Covington +53 70.2% +81 93.0% Jefferson -35 23.8% +73 50.0% McKinley +20 0.0% +15 1.7% Elm +159 26.4% +158 49.0% Washington -268 0.0% -342 0.0% Total Elementary 20.1% 29.4% Total System 18.6% 26.3% As further stipulated, this area was predominately white residentially according to the 1950 and 1960 census. (Stip. 202). However, the 1950 census map shows that in fact the area transferred contained only one 0% to 14% black block, while all the others were from 25% to 90% black in their residential population. Thus, this transfer served to increase the number of black students at Jefferson; whereas in 1952-53 Jefferson was 23.8% black, in 1958-59 it was 50% black. Thus Jefferson became considerably blacker than the system average, and was overcrowded by 1958-59. No figures are available to the Court for the 1955-56 school year. Interpolating from the available data, for the 1955-56 school year the black student enrollment at both schools was considerably above the system average. Since the boundary change entailed the reassignment of numerous black students to a whiter school it was probably integrative to racially neutral in effect. Two more integrative alternatives were available in that both McKinley and Washington Elementary Schools were underutilized. Yet utilization of McKinley probably would* have required transportation; a transfer of Covington students to Washington would have required transportation. Therefore, considering the expense of transportation and the geographic proximity of Covington to Jefferson, this particular choice was not unreasonable. It was fully consistent with the neighborhood school policy, and with an objective of reducing the overutilization at Covington. In 1955, an auditorium was added to McKinley Elementary School. Further analysis of this addition is not necessary. From 1955 until 1961 there was no action taken by the Youngstown school officials in the Rayen High School zone. In September 1961, Butler Elementary" School was closed due to low enrollment, and its students were reassigned and transported to Tod Elementary School. (Stip. 148). According to the Boundary Change Report, no families were then residing in the River Bend area. (Px 249). 1958-59 1961-6 2 Butler -27 2 96 .6% Tod -114 7.8% -162 51.8% Elm +158 49.0% -35 77.7% Washington -342 0.0% -458 0.0% Jefferson +73 50.0% +27 Covington +81 93.0% -19 Grant +158 61.0% +60 96 .8% Total Elementary 29.4% 33.2% Total System 26.3% 29.8% This reassignment was apparently integrative as to Tod, although the evidence fails to establish the relevant statistics for the next preceding school year. However, it is reasonable to assume that, in the 1960-61 school year, the percentage blacks enrolled at Tod was substantially below the system average. Therefore, while this transfer caused Tod’s percentage black student enrollment to rise well above the system average, the Board action negates any inference of a policy to preserve white schools. From a utilization standpoint, Tod was also a logical choice since in the next preceding school year it had 100 students, and even after the transfer it was significantly underutilized. Although it probably would have been physically feasible to send the Butler students to Washington, Stambaugh, and/or Harding and thus close Tod, other considerations militated against these options. A November 1959 letter from the Superintendent of Youngstown Public Schools to the Youngstown Metropolitan Housing Authority (hereinafter YMHA) indicates that the latter’s intent to place a housing unit in the Tod area coincided with the Board’s long range plans. Thus it appears that independent of any action by school officials, the housing authorities were planning a development in the Tod area whose students would have to be accommodated by the school system. (Stip. 171). Confirming same is a memorandum from G. H. Schoenhard to Dr. Wanamaker, then Superintendent of the Youngstown Public Schools, which contains a resume of a conference held with Mr. Chester Amedia of the YMHA on December 9, 1960. Therein it is stated that it was expected that ground would be broken for the housing sites by March 15,1961 with completion of construction to occur eighteen months thereafter or approximately in September 1962. It was further stated that site E near Tod School had been enlarged from 142 to 152 dwellings and that it was expected that about 80% of the houses in the site would be occupied by nonwhite population. Additionally, it was believed that the Tod site would be similar in composition and family size to the Kimmel Brook development. (Stip. 172). The elementary schools that were contiguous to Butler were Elm, Jefferson, Covington, and Grant. While Washington was also contiguous, it was separated from Butler by Mill Creek and its park. As shown by the above utilization and percentage black student enrollment figures, in 1961-62, Grant and Jefferson were overutilized and thus not reasonably available to receive students from Butler. Elm was only underutilized by 35 students and Covington by 19 students. Thus singly or together these latter two schools could not reasonably handle the Butler students. Moreover, both schools were identifiably black so that a transfer thereto would have been segregative. These facts combined with the planned housing expansion in the Tod area rendered reasonable the Board’s efforts to maintain Tod, to transfer Butler students to Tod to effectuate same, and to depart from the normal neighborhood school policy. To have transferred the Butler students to Washington, which could have easily absorbed them, would have left Tod woefully underenrolled. While such alternative would have been more integrative than the one actually chosen, this does not alter the fact that a reasonable, non-racial basis existed for the Board’s action. It should be noted that the Brier Hill Annex was, in fact, built in the Tod area in 1963. Despite such housing project, Tod’s enrollment continued its downward decline from 1958 through 1961 and on into 1963-64. It appears that the Brier Hill Annex housed senior citizens and not families as initially projected. Also in 1961, Hayes Junior High School received the addition of a gymnasium. In June, the ninth graders living to the west of Fifth Avenue, which students formerly remained at Hayes Junior High School, were transferred to Rayen and thus all ninth graders in the Rayen area attended Rayen High School. (Px 249). According to the 1960 census map, the subject area west of Fifth Avenue appears to have eontained most of the black population in the Hayes-Rayen attendance district. 1958-59 1961-6 2 Hayes -58 34.9% -319 47.3% Rayen -344 25.0% -404 27.4% Total-Junior 24.7% 31.1% Total Senior 18 .8% 23.7% Total System 26 .3% 29.8% Since both Hayes and Rayen were substantially underutilized, this factor is not significant in this instance. The action was integrative as to Rayen since even after this influx of black students its black student enrollment was below the system average. A similar but greater increase in the percentage black students at Hayes can in no way be attributed to this change. A gymnasium was added to Rayen High School in 1962. This building addition requires no analysis, however. Elm Elementary School was closed in 1965 according to stipulation 149. The Elm students residing in the area bound on the north by Madison Freeway, on the east by Wick Avenue, on the south by the Ma-honing River, and on the west by Fifth Avenue were reassigned and transported to Harding and Washington Elementary Schools. Those living in an area bound on the north by Park Avenue, on the east by Wick Avenue, on the south by Madison Freeway and on the west by Fifth Avenue were reassigned to McKinley Elementary School, while others residing in an area bound on the north by Park Avenue extended westward, on the east by Fifth Avenue, and on the west by Belmont Avenue were reassigned to Covington Elementary School. (Stip. 149). In addition to those four schools, stipulation 180 provides that Elm students were also assigned to Madison. 196 3-6 4 1967-68 Elm -60 71.6% McKinley -50 5.7% -114 16.3% Madison -16 3 50.0% -150 67.6% Harding -58 1.0% -178 9.1% Covington -74 98.4% -88 97.5% Washington -316 0.3% -468 0.4% Total Elementary 39.1% 44.9% Total System 35.1% 39 .6% Further, said stipulation notes that the students assigned to Harding and McKinley were white for the most part, while those assigned to Madison were predominately black. (Stip. 180). The former Elm students transferred to Covington resided in an area which was about half 25% to 50% black and half 50% to 90% black in its residential population. This area contained a few blocks that were 0% to 14% black and some that were 14% to 25% black. Further, according to the 1965 elementary school overlay, the area transferred to Covington included that part of the former Elm district which was east of Fifth Avenue and predominately white in its population. This overlay conflicts with stipulation 149 which indicates that students from this area were transported to Harding Elementary School. Based on the evidence presented, the Court is unable to accurately determine which is correct, although it appears probable that the subject stipulation is in accord with fact. As provided in stipulation 190, the section of Elm reassigned to McKinley was predominately white in its residential population according to both the 1960 and 1970 census data. The 1960 census map shows, however, that about half of this area was 14% to 25% black. Thus some modicum of integration was achieved since a predominately white school received an area with a significant number of black residents. The reassignment involving Harding Elementary School was not indicated on the 1965 elementary school overlay. According to stipulation 180, however, the area assigned to Harding was white residentially and the students were similarly white. The 1960 census map shows that the area was 0% to 14% black in its residential population except for one block which was 14% to 25% black. Thus a limited integrative effect resulted. It should be noted that in addition to these students, the students from the Old Harrison district north of Thornhill Avenue were now transported to Harding; they had been transported to Elm. (Px 285). Upon the closing of Elm, the section of Youngstown bound on the north by Carlton Street, on the east by Crab Creek, on the south by Wood Street, and on the west by Wick Avenue, and commonly known as “Smokey Hollow” was added to Madison Elementary School. As stipulated by the parties, this area was approximately 50% black in its residential population according to the 1960 and 1970 census. (Stip. 179). As further stipulated, the students assigned to Madison were in turn primarily black. (Stip. 180). The reassignment of Elm students to Madison served to decrease Madison’s underutilization. Although said reassignment may have increased Madison’s percentage black students, Madison was already above the system average in its percentage black students prior to the boundary change. Moreover, in terms of geographic proximity to Madison, the area transferred hereby was the closest. Those students residing in the area ultimately to be cleared by the university renewal project and the Madison Expressway Program were transported to Washington Elementary School upon the closing of Elm. (Px 285). This was to be a temporary arrangement since eventually the homes in the area from which these students came would be removed. As stipulated by the parties, this area was majority white in its residential population according to the 1960 and 1970 census. (Stip. 148). However, the census map for 1960 indicates that such area assigned to Washington was about half 0% to 14% black and half 14% to 25% black with a small section from 50% to 90% black in its residential population. Therefore, this reassignment was clearly integrative. Although it constituted a deviation from the neighborhood school policy, the expected eventual elimination of residences in the subject former Elm area rendered this reassignment temporary in nature. In summary, the Elm closing reassignments were in many instances integrative in effect and reasonably related to non-racial factors. In 1965, the southern boundary of Harding Elementary School was expanded to include the northern section of the McKinley attendance district. (Stip. 194). According to the Boundary Change Report, on July 28, 1965, Harding’s southern boundary was changed by two blocks and Tod Lane, Lora and Fairgreen Avenues as far west as Belmont were added to its attendance district. (Px 249). Harding 1.0% McKinley 5.7% Total Elementary 39.1% Total System 35.1% As stipulated by the parties, the area transferred was, according to both the 1960 and 1970 census, overwhelmingly white residentially. (Stip. 194). While the reasons for this change are not established by the evidence, it may have been made at this time in order to free additional space at McKinley for the Elm students transferred there. Both Harding and McKinley were whiter than the system average, and thus as to Harding this action was racially neutral. It did, however, serve to reduce the number of white students at McKinley causing in turn an increase in the proportion of blacks at that school. By a letter to parents dated August 21, 1967, the Youngstown school officials notified those persons residing in the area of Youngstown State University that thereafter the school system would not provide transportation to Washington Elementary School from the university area. (Px 285). Thus in 1967, the eastern boundary of Covington Elementary School was expanded to include that section of the former Elm attendance district from which students had been bused to Washington. (Stip. 204). Plaintiffs’ expert William Lamson testified that due to financial reasons the transportation program to Washington was eliminated. There were significant physical changes taking place within said area. As projected at the time of Elm’s closing, the expansion of the university and the freeway would in turn produce a decrease in the number of elementary school age children residing in the central section of Youngstown. Thus few students could have been living in the university area thereby rendering transportation to Washington an expensive and unnecessary proposition. Moreover, this reassignment represented a return to the neighborhood school policy since Covington Elementary School was in close geographic proximity to the university area. Racially, an integrated area was added to a predominately black school and thus the effect thereof was integrative. In 1970, the issue of closing Tod Elementary School again arose, as reflected in a letter dated November 10, 1970 from Chester Amedia, Director of the YMHA, to Dr. Yiering, then Superintendent of Youngstown schools. (Px 404-A). According to said letter, a committee representing parents who were residents of the Brier Hill Annex met with Mr. Amedia and requested that the YMHA appeal to the Youngstown school officials and Board to allow Tod School to remain open. A number of reasons were advanced why the closing of Tod would present a hardship on such families. Essentially they dealt with the problems that would arise as a result of the transportation of these students to another school. As stated therein, the majority of the Brier Hill Annex children lived within five minutes of Tod. These parents essentially asserted that the closing of Tod would deprive them of the benefits of the neighborhood school policy including incurring additional expenses for such items as clothes, lunches, and transportation. (Px 404-A). Nevertheless, in September 1971, Tod Elementary School was closed. (Stip. 144, 152). Jefferson -17 90.3% “88 87.0% Covington “129 97.9% -127 83.3% Stambaugh -497 13.7% -494 13.3% Harding “57 15.0% -79 16.7% McKinley -106 21.7% -150 18.5% Total Elementary 44.5% 39.8% Total System 44.1% 43.4% The former Tod attendance area was split into two sections: the eastern section was within walking distance of Jefferson and thus the children residing therein were assigned to Jefferson; the children residing in the northern and western sections of the former Tod district were transported to the discontiguous Covington. (Px 221). Also at this time, Covington’s western boundary was expanded to include a section of the former Butler attendance district which had been a discontiguous area assigned to Tod from 1961 to 1971. (Stip. 205). It appears from the 1970 census map that all of the areas transferred to Jefferson and Covington at this time were mostly white in their residential population. Thus these reassignments were integrative in that these two identifiably black schools received a substantial number of white students. This is reflected in the 1971-72 percentages for Jefferson and Covington which show a considerable decrease in both schools’ percentage black students. It appears that Covington was utilized since a bus garage for the public schools was located in the Tod area and could thus easily transport Tod area students to Covington on its way into the central city area. The grade structure of Hayes Junior High School was changed for the 1971-72 school year from grades seven and eight to grades six through eight. At the same time the grade structures of Covington, Harding, Jefferson and McKinley Elementary Schools were all changed from kindergarten through sixth grade to kindergarten through fifth grade. (Px 271). 1970-71 1971-72 Hayes Junior High -378 64.7% -158 64.9% Covington -129 97.9% -127 83.3% Harding -57 15.0% -79 16.7% Jefferson -17 90.3% -88 87.0% McKinley -106 21.7% -150 18.5% Madison -179 68.9% -42 71.3% Total Elementary 44.5% 39.8% Total Junior 51.6% 63.0% Total System 44.1% 43.4% Although not indicated in the stipulations or other data, such changes may have been part of the reorganization necessary to effectuate the Tod closure. These schools all fed Hayes Junior High School. The only school within the Hayes feeder pattern which did not experience a grade structure change was Madison. Racially these grade structure changes have not been demonstrated to be significant. The boundary between East and Rayen High Schools became Crab Creek from Adams Street to the Mahoning River in November 1971. (Stip. 249). 1970-71 1971-7 2 East -347 58.8% -6 37 56 .9% Rayen -352 54.2% -26 0 5 4 . 9% Total Senior 39.3% 38.7% Total System 44.1% 43.4% The attendance area transferred thereby from East to Rayen was majority white in its residential population according to the 1970 census map. Racially this boundary change and territory transfer was neutral in effect. For the 1972-73 school year, the grade structure of Hayes Junior High School was returned from a grade six through eight school to a grades seven and eight school. (Px 271). Concomitant with this change the grade structures of Covington, Harding, Jefferson, and McKinley Elementary Schools were changed from grades kindergarten through fifth to kindergarten through sixth grade. Again the only school within the Hayes Middle School feeder pattern which did not experience any grade structure change was Madison which throughout remained a kindergarten through sixth grade school. 1971-72 197 2-7 3 Hayes -158 64.9% -508 68 .5% Covington -127 83.3% -14 84.0% Harding -79 16.7% -44 20.6% Jefferson -88 87.0% -20 88 .7% McKinley -150 18.5% -148 21.7% Total Elementary 39.8% 46.8% Total Junior 63.0% 55.8% Total System 43.4% 44.7% A look at the utilization figures for Hayes for the 1972-73 school year indicates a dramatic increase in its underutilization. Hayes, however, lost substantially more students than the elementary schools gained by the return of the sixth grades thereto. Thus this grade structure change does not provide a full explanation for Hayes’ loss of enrollment. It may be attributed in part to a decline in the population of the area. The evidence presented, however, fails to provide the Court with an accurate explanation therefor. In terms of the racial effect of this change, it appears to have been totally neutral. Subsequent to the 1972 grade structure change described above, no other changes within the Rayen zone have been proven to the Court. EAST ZONE The schools comprising the East zone are: East High School; East and Lincoln Junior High Schools; Haddow, Harrison, Lincoln , Madison, Richey, and Roosevelt Elementary Schools. The original Roosevelt Elementary School was built in the early 1900’s. In 1940, however, a replacement facility containing seven classrooms was opened. The attendance area assigned to Roosevelt was bound on the north by Shehy Street, on the east by Lincoln Park, on the south by the Mahoning River, and on the west by Forest Avenue. (Stip. 115). The parties stipulated that, according to the 1940 census, Roosevelt and one of its contiguous schools, Lincoln Elementary, contained within their attendance districts most of the black population residing east of Crab Creek and the Mahoning River. (Stip. 115). It was further stipulated that to the east of and contiguous thereto were Richey and Coitsville Elementary Schools of the East and North zones, respectively. These schools served an area which was white in its residential population according to the 1940 census data. (Stip. 115). Likewise in 1940, Richey Elementary School received a two room addition. (Stip. 115). As noted above, Richey’s attendance area contained only white residents at this time. Finally, in 1940, five classrooms were added to East High School. The record before this Court is devoid of any racial data for the individual schools prior to the 1952-53 school year. In view thereof, the Court cannot analyze either the racial effect or reasonableness of the 1940 building constructions and additions. The parties stipulated that the western boundary of Sciencehill Elementary School was contracted in 1946 to transfer a portion of its attendance area to White Elementary School. (Stip. 207). Yet Sciencehill was not commissioned until' 1955. (See pages 1017,1018, infra.). Harrison Elementary School was constructed in the early 1900’s north of Thorn-hill Avenue in northeastern Youngstown. (Hereinafter this school shall be referred to as Old Harrison for purposes of' clarity.) In 1949, this facility was closed, and those students residing north of Thornhill Avenue were bused to Richey, while those to the south were reassigned to Madison. 1952-53 Richey +2 0.0% Madison -52 21.0% Elm +159 26.4% Total Elementary 20.1% Total System 18.6% According to the 1950 census map, both the area north and the area south of Thorn-hill Avenue were predominately white in their residential population. The assignment of students from the southern section of the Old Harrison district to Madison was probably integrative in effect since Madison’s attendance area encompassed numerous blocks with black residents. The reasonableness of the reassignment cannot, however, be judged due to the lack of utilization figures for the 1949-50 school year in this record. For the 1950-51 school year, Madison Elementary School was underutilized by 206 students according to the February 1952 “Public Schools in Youngstown, Report No. 6.” (Px 83). In view thereof, the Court infers that Madison was considerably underutilized in the next preceding school year, and that the reassignment was thus reasonable from a facility utilization standpoint. The reassignment of students residing north of Thornhill Avenue to Richey was racially neutral in its effect. The reasonableness of this reassignment in terms of facility utilization cannot, however, be determined since the relevant figures have not been made available to the Court. The 1952 Report indicates that, based on the September 1950 enrollment Richey was overutilized by 40 students, but that its excess student population was, in 1952, being transported to Elm Elementary School. (Px 83). When this reassignment was initiated is not established. Thus the record does not demonstrate that the reassignment to Richey was an unsound administrative decision. Moreover, said reassignment was apparently effected to quell the considerable opposition to the closing of Old Harrison raised by the residents of the area north of Thornhill Avenue. In an effort to mollify these individuals and assure their continued support, the Youngstown school officials promised that students residing north of Thornhill Avenue would be reassigned to schools which fed Rayen High School. Such action has not been shown to have been unreasonable or discriminatory in effect. Based on the foregoing, the Court concludes that the evidence does not establish that the closing of Harrison and the concomitant reassignments were segregative in effect or purpose. In 1951, the students residing north of Thornhill Avenue in the Old Harrison attendance district were reassigned and transported to Elm Elementary School. Said arrangement continued until 1964. 1952-53 Elm +159 26.4* Richey +2 0.0% Madison -52 21.0% Harding +178 0.0% McKinley +20 0.0% Total Elementary 20.1% Total System 18.6% The Old Harrison students residing south of Thornhill Avenue continued to attend Madison Elementary School. Racially the reassignment of the students • north of Thornhill Avenue to Elm was unquestionably integrative in effect. These white students, numbering approximately 30, were transported to a school in which the percentage black student enrollment was significantly above the elementary school average for the following year. From an administrative viewpoint, however, said assignment was not sound. According to the 1952-53 utilization figures shown above, Elm was considerably overutilized, while Madison could have easily absorbed the students residing north of Thornhill. However, Elm was within the Rayen High School feeder pattern and thus the change was consistent with the previously discussed promise made to the parents of these students. Sixteen rooms and a gymnasium were added to East High School in 1953. (Stip. 119). As noted above, East at this time served as school. both a junior and senior high 1952-53 East Jr. & Sr. North Jr. & Sr. Rayen Jr. S> Sr. Wilson Jr. & Sr. South Sr. Total Junior Total Senior Total System The Court is unable to accurately assess the racial effect of the East , addition since the next available racial data is that for the 1958-59 school year. Based on the figures for the year preceding the addition, however, the effect appears to have been neutral since the percentage black students enrolled at East was only slightly above the system average. From an administrative standpoint, the construction of an addition to East had a reasonable basis. As reflected in the February 1952 “Public Schools in Youngstown, Report No. 6,” East High School was 237 students over its optimum utilization figure in September 1950. Such overutilization continued through the 1952-53 school year as shown above; in said year East was overutilized by 145 students. Further, the 1952 Report projected that the junior high school enrollment in the East area would rise to 925 students for 1955, and suggested that such enrollment justified a separate junior high school facility for the area. Rather than construct same, it appears that the school officials responded to the immediate needs of this rapidly growing area by the addition to East. In view of the foregoing, therefore, the Court finds that there was a reasonable basis for the East addition in 1953. Based on the utilization figures set forth above, it appears that East’s overcrowded condition could have been relieved through the reassignment of its students to either Rayen or Wilson. Of the two, only Wilson presented an integrative alternative; it was, however, located across the Mahoning River from the East High School district. Moreover, a reassignment of East students to either Rayen or Wil