Full opinion text
OPINION OF THE COURT INCORPORATING FINDINGS OF FACT AND CONCLUSIONS OF LAW CORNELIA G. KENNEDY, Chief Judge. These actions are brought by the Attorney General of the United States under two separate statutes, Action No. 75-70958 under the Equal Educational Opportunities Act of 1974 (EEOA), 20 U.S.C. §§ 1701-1758, and Action No. 76-70871 under Title IV of the Civil Rights Act of 1964, 42 U.S.C. § 2000c-6. Named as defendants are the School District of the City of Ferndale, Michigan, a school district of the third class (hereinafter referred to as School District or District); its Superintendent William G. Coyne; The State of Michigan; The Michigan State Board of Education, a constitutional body corporate; John W. Porter, Superintendent of Public Instruction, Department of Education; and William G. Milliken, Governor of the State of Michigan, an ex officio member of the State Board of Education (hereinafter referred to as State defendants). The complaints in each case allege School District built, operated and maintained the Ulysses S. Grant Elementary School in the school district for the purpose and with the effect of segregating black elementary students in the school system and have discriminatorily assigned or permitted the assignment of black faculty to the Grant School on the basis of race. It is further alleged that the defendants are operating a dual education program at the Grant School, one of which is virtually all black, and have been responsible for de jure segregation of the Ferndale School System. Count Two of Civil Action 75-70958, which relates to the use by the State of revenue sharing funds, is dealt with in later portions of this opinion. The two actions were consolidated for trial, since although arising under separate statutes requiring different pre-complaint procedures or requirements, the claims of the plaintiff in both actions seek the same relief (aside from the revenue sharing claim) and require the same proofs. The evidence received at earlier hearings on motions for preliminary injunction were made a part of the trial record as provided for by F.R.Civ.P. 65. The procedural history of these cases is set forth in detail in this court’s earlier opinions and summarized in large part in the decision of the United States Court of Appeals in United States v. Ferndale School District, 577 F.2d 1339 (6th Cir. 1978), and will not be repeated here. PRESENT OPERATION OF SCHOOL DISTRICT Defendant School District is a suburban school district located immediately north of Detroit and serving an area of about 4.5 square miles. The district includes all of the City of Pleasant Ridge, the greater part of the City of Ferndale, a part of the City of Oak Park, and a part of Royal Oak Township. Thus, although it is called the School District of the City of Ferndale, its borders are not coterminous with that city. The total student enrollment of the district in the 1977-78 school year was 5940 students, 595 or 10 percent of whom were black. During that same school year, District operated eight kindergarten through sixth grade (K-6) elementary schools with a 1977-78 enrollment of 3,212 students; 325 of these elementary students, approximately 10.1 percent, were black. The District employed during that year 115 elementary teachers, 17 of whom, or 15 percent, were black. In the 1977-78 school year, each elementary school had full-time black elementary classroom teachers. All of the elementary schools in the district had black children enrolled during the 1977-78 school year. District has always operated a single high school and all students from the entire district have attended that high school. Prior to the 1976-77 school year, District operated a single junior high school and students from the entire district attended that school. During the 1976-77 and 1977-78 school years, the former junior high school was closed and the district operated two junior high schools. Attendance boundaries for these two junior high schools were drawn in a manner that resulted in each having the same percentage of black students. Thus, each reflects the percentage of black students in the district in grades seven and eight attending junior high school. The plaintiff has made no claim that the prior operation of the single junior high school or, now, of the two junior high schools, or of the high school has been or is in violation of any student’s constitutional rights. The faculties as well as the student bodies of these schools are integrated. The plaintiff’s entire claim is directed towards the construction, maintenance and operation of a single elementary school, the Grant school. It has presented evidence with regard to other schools in the district but only insofar as it affected Grant school or its attendance area or bore on the issue of intent. The present two junior high schools, Best and Coolidge, were until the 1976-77 school year K-6 elementary schools. The former single junior high school, Lincoln, required very extensive and expensive repairs and rehabilitation if it was to continue in use. The school population of the district has been declining for several years. Rather than expend the large sums necessary to renovate Lincoln, the school board elected to take two of the larger elementary schools and turn them into junior high schools. The closing of Coolidge as an elementary school has required the school board .to furnish some transportation to some of its former students because of a railroad, distance, and major thoroughfares. The only other transportation ever provided elementary students by the district, aside from those pupils in special education or programs for the handicapped, is the transportation of children from the Grant attendance area participating in the open enrollment program, begun in 1975-1976, and to Grant for the open classroom program which commenced that same year. Beginning with the 1975-1976 school year, continuing during the 1977-1978 school year and contemplated to continue in the future, Grant had two educational programs: one, the so-called traditional self-contained classroom program, and the other, the so-called open classroom program. The open classroom program or method of elementary teaching is less formally structured than the self-contained classroom in that students in the same class may be involved in many different projects or activities at the same time. Parent volunteers participate directly in the teaching process in the classroom. Students work in small groups, and the same students do not remain with a single group. The evidence established that teachers for such an open classroom program have different demands on them than traditional classroom teachers, that they must believe in this method of education and must be especially motivated to teach in such a program. The School District has had a declining enrollment for the past several years with a resulting decline in need for faculty. Rather than employing teachers, it has been laying them off or not replacing them as they resign or retire. Teachers for the open classroom program were recruited system-wide from the elementary faculties. A written communication was distributed to all elementary teachers asking those who were interested to volunteer to teach in it. No black teacher volunteered for that program. All of the teachers selected were from those who volunteered and all are white. The black teachers at Grant were personally approached and asked if any of them would volunteer to teach in the open classroom. None did. In view of the fact that the total elementary faculty of the school district is integrated, the method of selection of teachers for the open classroom is in the court’s opinion a racially neutral method. Thus, although all of the teachers in the open classroom (eight including the teacher coordinator) are white, the court finds that the school board has sustained its burden of showing that their selection was free of any intent to segregate. This open classroom program operated at the Grant school is open to all K-6 students in the School District on a voluntary basis. Its enrollment during the three years of its existence has been: YEAR WHITE BLACK TOTAL 1975- 1976 160 30 190 1976- 1977 181 34 215 1977- 1978 176 31 207 All of the white students who attended this program, at Grant, live outside the Grant attendance area. There were 198 black students enrolled in the traditional classroom program at the Grant Elementary School during the 1977-1978 school year and one white. That program presently has three white teachers and four black teachers. One black teacher has taught there for 32 years while the other black teachers have been there approximately 10 years each. During the 1975-1976 school year there were four white teachers in the traditional classroom and four black. The enrollment has declined. One teacher was not needed and, having the least seniority, a white teacher left Grant school. At earlier times as discussed infra, page 370, the entire faculty of Grant was black. The evidence established that the hiring of elementary teachers during the superintendency of John J. Houghton, which began in 1961, has been racially neutral. The number of black teachers at Grant h¡ ,s varied over the years. In 1969 the racial representation of faculty at the Grant school was 13 full-time black teachers and 10 full-time white teachers. Since that time the enrollment at Grant school, as at every other elementary school in the district, has dramatically declined. With the declining enrollment, teachers with less seniority were laid off or assigned elsewhere. The same seniority system is used district-wide and appears to be racially neutral. There are presently 16 elementary teachers at the Grant school, 4 of whom, 25 percent, are black. However, black teachers do constitute over 50 percent of the faculty in the traditional program. Although the teachers in the traditional and open classrooms use different teaching methods, they are a single faculty for all administrative purposes and functions. The principal of the Grant school, who is black, evaluates all teachers at the school, both those teaching traditional classes and those teaching in the open classrooms. The teacher coordinator is classified as a classroom teacher for union bargaining purposes and he or she is evaluated by the principal in the same way as is every other teacher. Faculty meetings at the school are attended by all classroom teachers there, and faculty committees are made up of teachers from the entire school. There is a single Parent-Teacher Association at the Grant school whose numbers include parents of students in both the traditional and open classrooms. School District has urged that in determining the racial composition of the Grant school the Court should include both the open and traditional classrooms and that using such approach the school is not segregated. Students in the traditional and open classrooms have a single student council; the choral and band programs, as well as the library programs and library work, field trips and special programs, are joint activities involving students from both the open and traditional classrooms. Further, both lunch and recess programs are shared. There is some interaction in the academic programs; for example, sixth graders from the traditional program tutoring primary students in the open classroom, and vice versa. However, the majority of the time that is spent in academic study by students in the traditional program is spent in their self-contained classrooms where with one exception all the students are black. In addition to the open classroom program, Ferndale adopted an open enrollment policy beginning with the 1975-1976 school year, which permits any elementary student in the school district to attend any other school. The first year of its existence, four black students from the Grant attendance area attended other schools in the district. This number increased to 31 in the 1976-1977 school year and to 42 in the 1977-1978 school year. The one white child in the traditional classroom attends pursuant to this open enrollment policy. All of the children who reside in the Grant attendance area and attend the public schools are black; indeed, the evidence indicates that all persons residing in the Grant attendance area are black. The defendant School Board asserts that the plaintiff has failed to establish that segregation exists at the Grant school in view of the above facts; that although 25 percent of the total faculty is black, this is not disproportionate to other schools in the district since the Jackson Elementary School, which has 7.6 percent black student enrollment (including those who attend pursuant to the open enrollment policy) has five black faculty members out of a total faculty of 16 or 31 percent black; and that there are 177 white children and 229 black children, a total of 406 students in Grant school, hence approximately 44 percent white and 56 percent black. It asks that even if the court should find that the school district at one time practiced de jure segregation that such segregation no longer exists. The court is unable to accept the conclusion urged by the defendant School District. If School District is found to have practiced de jure segregation, the continuing existence of all-black traditional classrooms are a residue and result of that segregation. The open classroom program, available to and participated in by all students without regard to race, as well as the open enrollment policy, availed of by approximately 15 percent of the black children from the Grant attendance area, have commendably reduced the racial isolation of the Grant area students. Sufficient isolation still exists, however, in the traditional classrooms to require a determination of the reason why the Grant school had only black students before the open classroom program was initiated, since this same reason is the cause of the continuation of all black students in the traditional classrooms at Grant school. The court, must, therefore, undertake the difficult task mandated by Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 1043 (1973), and Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977), to determine whether the segregation which continues to exist in the traditional classrooms results from actions taken with segregative intent by School District. As stated by Justice Brennan in Keyes: We emphasize that the differentiating factor between de jure segregation and so-called de facto segregation to which we referred in Swann is purpose or intent to segregate. 413 U.S. at 208, 93 S.Ct. at 2697 (emphasis in original) (footnote omitted). HISTORY OF SCHOOL DISTRICT DEVELOPMENT School District maintains that the all-black population in Grant school’s traditional classrooms, as well as the pre-open classroom all-black school population, exists and has existed for de facto, adventitious reasons. The attendance area from which the Grant school draws students has only black residents and has had only black residents with one or two exceptions since the school was opened in 1926, with the identical attendance boundary it now has. The school has not changed attendance boundaries in its 52-year existence. The evidence establishes that at the time the school opened it had one white student in attendance, who completed the six grades provided by the school. There have been no other white students at the Grant school, aside from those in the open classroom and the single white student in attendance under the open enrollment policy. School District maintains that the Grant school was located in accordance with the district’s policy of maintaining at all times a neighborhood school, that there was no other feasible alternative location for a school to serve this area, and that School District did not build or maintain Grant school for the purpose or with the intent of segregating black pupils. In support of its position that a neighborhood school policy has always been the policy of defendant School District, defendant points to the minutes of its meeting of September 30, 1921, in which it adopted a building policy related to the location of elementary schools. That policy provides: 2. . [Ejlementary schools shall be so located as to: (a) Minimize hazard to children in crossing the main thoroughfares. (b) Provide schools within reasonable walking distance. 4. That any building project be determined in its relationship to the needs of the district as a whole as well as in relationship to the school of any section of the district. 5. That the location of these schools shall conform with the policies of the Board of Education with regard to safety, accessibility and economy. At the time that this policy was adopted, there were a few black families living in the southwest corner of the district, which now constitutes the Grant attendance area, and a few in the northeast corner of the District, the Harding attendance arer. The adoption of this policy could not be racially motivated in any way. It is necessary to examine the history of School District to determine whether it adhered to this policy. Below is a map of the present boundaries of the School District and the location of the schools, which will make the court’s findings easier to follow. In 1919 the School District was roughly rectangular in shape, bounded by Eight Mile Road on the south, Ten Mile Road on the north, Hilton Road on the east, and Wyoming Avenue on the west. The School District at that time operated three schools: a two-room, two-story school in Pleasant Ridge on the site of the present Roosevelt Elementary School; the Central school, located near Woodward Avenue and Nine Mile Road; the Ridgewood school, a four-room, two-story school, located near Eight Mile and Stratford Avenue, a location which was lost upon the widening of Eight Mile Road. Eight Mile was then only a two-lane dirt road. During the 1920’s it became a major east-west artery with several lanes in each direction divided by a median. Total student enrollment in all three schools was 460. The following chart sets out the increase in the number of students and the percentage of increase in enrollment in the School District from 1919 to 1926. TOTAL YEAR STUDENTS INCREASE IN ENROLLMENT IN PERCENTAGES 1919 460 1920 621 35 1921 1,175 89 1922 1,604 37 1923 2,005 25 1924 2,767 38 1925 3,213 16 1926 3,894 21 (Minutes of the School Board June 26, 1922 and October 24,1924, and Defendant Exhibit 52, hereinafter cited D-52.) The total population of the School District increased from 3,825 in 1920 to 22,629 in 1930. Most of this apparently was in the City of Ferndale, which increased from 2,840 persons to 20,855 persons in that same ten-year period. To deal with this increase in 1920, the School District built the Harding Elementary School in the northeast corner of the School District. It was a four-room school; two rooms were located in the basement. The original enrollment of the Harding School is not known; however, in 1922, two years after it had been opened, it enrolled 148 students (Minutes, October 2, 1922). In that same year the Roosevelt school was built on the site of the old Roosevelt school. It was originally constructed with eight classrooms and the old Roosevelt school was divided into four rooms and used together with the new building until 1926. In 1921 the School District was expanded to its present boundaries by the annexation of the area west of Wyoming to Scotia Road between Nine and Ten Mile Roads. At the time of this annexation that area contained 13 families with 19 children (Minutes, September 30, 1921). In 1923 the School District constructed two new elementary schools: Washington, a six-room building, located near Livernois and Pearson, and Wilson Elementary School, a six-classroom building on Paxton Avenue. In 1924 and 1925, two rooms were added to the Harding School, to make it a six-room building. However, it appears that the basement rooms were not fit for use (Government Exhibit 213(c), hereinafter cited G-213(c)). In 1923 or 1924, the Washington school was enlarged by the addition of six classrooms so that it was a 12-room building sometime before 1925. Even with these new schools and additions in June of 1924 (D-56), the large increase in population of the district caused over 500 students in the district to be on half-day sessions by June of 1924 (D-56). In 1924 two additional schools were constructed: the Coolidge Elementary School, a 12-room school located on Drayton Avenue, between Woodward Avenue and the Grand Trunk Railroad; and the Jefferson school, located in the western part of the school district, on Republic Avenue near LeRoy Avenue. The Grant school was constructed in 1926 as a six-room building, plus an office and bathrooms. The Taft school opened in the fall of 1928, replacing the Ridgewood school. Taft contained 20 to 22 rooms. Taft’s construction was financed with funds received from the sale of the Ridgewood school and site. (G-213(c)). It was the last school to be constructed until 1950, although there were additions to other schools in the interim. Unlike the other elementary schools, which opened as K-6 schools, Taft operated a K-8 program from the time it opened. In 1930 four classrooms were added to the Harding school, and 13 classrooms were added to the Coolidge school, which iater was intended for use as a junior high school (grades seven and eight) as well as an elementary school (G-131; G-213(c)). Four classrooms were added to the Grant school in 1942, and four additional classrooms plus a multi-purpose room were added in 1945 (G-213(f)(g); D-77, D-26) (Minutes, March 6, 1945). The Jackson school was built in 1950 and the Best school in 1954. Best school was built to serve part of the Roosevelt school former attendance area, and Jackson was constructed to serve the northwest part of the Jefferson attendance area, which had grown rapidly between 1949 and 1951 (G-131 and 132). These two schools are located only one block apart. Further additions were made to all elementary schools in the District with the exception of Coolidge after World War II. The evidence presented to the court establishes that with the exception of the Best and Jackson schools, both of which have had all or substantially all white students, all students attended the school nearest to their homes. As stated previously, the focus in this case is the purpose and intent of School District in the construction and operation of the Grant school. Throughout the history of School District, there have been some black residents with school age children who resided in the northeast area of the school district in the Harding school attendance area. They have always attended Harding, the school nearest their home. There have also been a very small number of black children as well as other minorities such as Oriental or American Indian who have resided in other elementary school attendance areas. They, too, have attended the schools nearest their homes. HISTORY OF GRANT SCHOOL Turning to the detailed history of the Grant attendance area and the construction and maintenance of Grant school, the testimony is undisputed that the Grant area was largely vacant in 1921, with only a few homes, occupied by both black and white families (Testimony of Anna Thomas, a black leader in the Grant area). With construction of the Highland Park plant of the Ford Motor Company, the entire area encompassed by the school district except the Best-Jackson area increased very rapidly in population (see page 357, supra). The Grant attendance area consists of Forest Grove subdivision and Detroyal subdivisions (there were more than one Detroyal subdivision, all contiguous to one another). Ernest Morris, a black man, whose family moved to this area in 1924, testified that there were approximately 40 families living in Forest Grove and Detroyal subdivisions when he moved there. He testified that during the years 1924 through 1926 there was a building boom in these two subdivisions. His recollection of this growth is corroborated by the testimony of other witnesses as well as evidence showing that when Grant opened in the fall of 1926 it had 124 students in the K through 6 grades. Prior to the 1925-1926 school year, the majority of the school-age children in the Forest Grove and Detroyal subdivisions, the Grant attendance area, attended Ridgewood school. Ernest Morris testified that he attended that school as did most of the children from the area where he lived. However, it would appear also that some children from the area attended the Washington school. At his mother’s request the Morris children transferred to Washington during part of the 1924-1925 school year. This request to attend Washington school was made because there were no sidewalks between the Morrises’ house and Ridgewood while there were sidewalks most of the way from their house to Washington. Forest Grove and Detroyal subdivisions were without sewers, water, or paved streets until after World War II, when these improvements were made under a federal urban renewal grant to Royal Oak Township. They did have some sidewalks. The sidewalks did not, however, extend the length of all the streets, and none of the sidewalks extended to Northend Avenue, which is one-half mile north of Eight Mile Road and which constitutes the northerly boundary of the Grant attendance area. The subdivisions were promoted by their developers as subdivisions for black families. In 1925 or 1926, there were only two or three white families who still lived in the area. Until the 1925-1926 school year, as stated above, the majority of the students in the Grant attendance area attended the Ridge-wood school. Sometime in 1922 or 1923, the principal of the Ridgewood school, a Mrs. Terry, suggested to Mrs. Anna Thomas, who had resided on Mitcheldale in Detroyal subdivision since 1920, that she circulate a petition to have a portable or temporary school built in the Grant area at Bethlawn Avenue and Eight Mile Road so that the children would not have so far to go. Mrs. Thomas testified that she did not approve of this idea, that she invited Mrs. Terry to a meeting of residents at the Thomas home. Mrs. Thomas further testified that after explaining to Mrs. Terry the swampy, unsatisfactory nature of the proposed location of the portable school, Mrs. Terry agreed with her that it was totally unsuitable and that she, Mrs. Terry, had been totally unaware of this condition. The subject was not pursued further. There is nothing discriminatory in the proposal for a portable school. The minutes of the school board meeting of December 14, 1923 show that the Board considered building a portable school at or near Leggett Farm, the location where Jefferson was later built, but abandoned that idea. In 1924 a group of residents of that area petitioned for a temporary school. (See Minutes of May 9, 1924.) The procedure followed for the establishment of all of the earlier elementary schools was identical. A group of tax-paying residents would petition the school board requesting that a school be built within a certain area. If the Board approved the request, the proposal would be placed on the ballot asking the electors to approve a bond issue to build a school within that area. Bond issues approved by the electors were also used to finance additions, in most instances. Mrs. Anna Thomas testified that she was one of the persons who circulated the petition for the construction of the Jefferson school and submitted it to the board of the School District. It was she (she testified) who suggested its location on or near the Leggett farm, where it was subsequently built. The original plan for the Jefferson school and the one submitted to the voters on January 16, 1925, was for an eight-room building (Minutes, December 19,1924, January 22, 1925, March 3, 1925, January 23, 1925). A special meeting of the voters was called by a resolution of March 3, 1925, to approve an additional four rooms and the expenditure of $27,000.00 received from the sale of the old Central school site for this purpose. This was approved. The Jefferson school was opened in the fall of 1925 with 12 rooms. Its attendance area as well as those for all elementary schools in the district is set out in the minutes of the school board for September 18, 1925, and included all of the present Grant attendance area, the present Jefferson attendance area, and the area north thereof which was then largely vacant and unsubdivided. Although the exact racial composition of the students at Jefferson during the 1925-1926 school year is unknown, it was probably % to % white and Vi to Vs black. The history proper of the Grant school, so far as the evidence presented to the court reveals it, begins with the minutes of the school board meeting of October 16, 1925. The minutes recite: The following petition was presented, signed by six or more taxpayers of the District: September 29, 1925. To the Board of Education, School District No. 9. Royal Oak Township, Oakland County, Michigan We, the undersigned, citizens of the United States of America, and resident taxpayers of School District No. Nine (9), Royal Oak Township, Oakland County, Michigan, do hereby petition that you call a special meeting of the qualified electors of said school district to meet in special session for the purpose of designating a school site, said site to be located in the Forest Grove Subdivision, Nos. One (1), Two (2), and Three (3) between Woodside on the West, Parkside St., on the East, Clover-dale St., on the North, and Pasadena St. on the south, all in the south west quarter (Vi) on Section thirty-three (33), Town one (1), north range eleven (11) east, Royal Oak Township, Oakland County, Michigan. It was moved by Mr. Caldwell, supported by Mr. Damon, that the petition be received and filed. The records of School District do not contain the names or addresses of the persons who presented this petition. The names and addresses of those petitioning for all of the other schools are similarly unknown. It was not the practice of the board to record or retain such information. At that same meeting the board passed a resolution to submit this request together with petitions received at earlier meetings for another school site (later Taft school) as well as additions to Lincoln High School and Wilson, Roosevelt and Harding Elementary Schools to the voters to approve bond issues for these purposes. Each school site and addition was submitted to the voters as separate propositions. School District did not require that the petitioners for a new school site be residents and taxpayers of the particular area to be served, although they had to be residents and taxpayers of the district. There is, however, evidence that one of those who signed this petition was Mrs. Anna Thomas. Mrs. Thomas testified unequivocally that she participated in presenting two petitions to School District for new schools: one, the petition for the Jefferson school on the Leggett farm, and the second for Grant Elementary School. Although the court did not have the benefit of hearing Mrs. Thomas’ testimony, it has read with care the testimony she gave at the HEW hearing. She was 86 years of age when she testified and her testimony is at times somewhat confused, but not on this issue. She testified at the HEW hearing as follows: Q Do you know how that school, the Grant School, came to be built where it was built? A That’s the petition we gave to Downs. Q That the result of the petition you gave to Downs? A Yes. Q The Grant school was built as a result of this petition? A Yes. HEW Tr. 58. Although it might appear at times throughout the testimony that she had opposed the construction of the Grant school, it seems that her opposition was rather to the earlier proposal to build a portable school in the Grant area at Bethlawn and Eight Mile Road and to building an inferior temporary building. Thus, in response to the question from an attorney for the United States, she stated: Q At the time the school board erected the Grant school, why did you oppose the Grant school being placed there? A In the first place it was in no condition for a school, that was one of the reasons I didn’t want to see no portable put in there. There wasn’t any water or anything like that, nothing for the kiddies to have. We couldn’t have meetings or anything at night at all in that dark and everybody, talking about woods and trees and things, it was a frightful place. Q Were there any other reasons, Mrs. Thomas, beside the fact that it was not a fit site for a school? A No I had no other reasons. HEW Transcript 59-60. Her testimony continues: Q Mrs. Thomas, how many petitions did you present to the School board for building schools? A I hadn’t thought about that. Q Was there just one or was there two? A No, there was two. Q . Specifically, did you submit a petition for the purpose of having a specific school building erected more than once, or did you do that just once, or did you do that more than once? A I did that twice. Q Now the first time, what school were you trying to get built? A The first time that was the Jefferson school was the first one that I petitioned for. Q Now, did you say you submitted petitions to have another school built as well? A Then the next one was when I was working for Jefferson. Q You’ve already told me about that, Mrs. Thomas. Was there a second school that you tried to get built or was Jefferson the only one? A No. I worked to help to get the petition and the petition that we gave to Lawyer Brown I helped in that, that was for Grant. Q But what was in that petition; what were you trying to do with that petition? A I was trying to get a decent school. Q Did you ever try to prevent the building of the Grant school? A We did. We stopped them from building the school until the ground was put in a sanitary condition. Q Did you ever try to get it stopped altogether? A No we weren’t trying to stop it altogether . Q Well, were you aware at the time that Jefferson school was going to be built it would only have black children — in the Grant school, excuse me? A No I didn’t know at the time. I don’t know if I thought about it or not. Q I see. HEW Transcript 59-61. Nowhere in her testimony did she contradict her prior statement that she was one of those who petitioned for the building of the Grant school. It is clear that Mrs. Thomas was one of those who presented the petition for the building of Grant school in the area w.here it was later constructed and the court so finds. The voters approved the bond issues including that for erecting Grant at an election on October 30, 1925. The total votes cast in favor of building Grant school were 244, the votes against were 23 and there were 12 spoiled ballots. The votes for all the other propositions on the ballot were approximately the same numbers and percentages except that there were about twice as many votes against the addition to Roosevelt school. The votes for acquisition of the Taft site are almost identical with those for Grant: 233 in favor, 26 against, and 5 spoiled ballots. One would logically expect significantly more votes in favor of the construction of Grant than for the other proposals if the intent and purpose of building Grant were to segregate black students. Such was not the case. In 1926, in addition to the construction of the Grant Elementary School which opened that fall, the District built a seven-room addition to the Wilson Elementary School and a ten-room addition to the Roosevelt Elementary School. On December 18, 1925, a resolution was adopted by the school board setting out the attendance boundaries for all of the elementary areas in the school district and requiring those children in the Grant attendance area to attend Jefferson. During the 1925-1926 school year there was opposition on the part of some parents in Detroyal and Forest Grove subdivisions to having their children attend the Jefferson school because the distance was too far, no sidewalks extended to that school, and the streets, being unpaved, were muddy. In December of 1925, a lawsuit was brought against School District by Mrs. Thomas as next friend of children in the Grant attendance area asking that children in the Grant attendance area be allowed to continue to attend Ridgewood school, complaining about the excessive distance to Jefferson and the muddy conditions (D-28). This lawsuit was dismissed by the state court and apparently all of the children in the Grant attendance area attended Jefferson for the remainder of the 1925-1926 school year. The pleadings in the lawsuit do not mention the Grant school. It does state a concern that School District is requiring students to walk four miles to school in order to create an excuse for a portable school building in the vicinity of the plaintiffs’ homes and asks that plaintiffs be allowed to continue to attend Ridgewood School. School District’s answer in that action does not refer to Grant or any other contemplated school but responds that Ridgewood was overcrowded and Jefferson had adequate space and was 4,924 feet from plaintiffs’ homes and not IV2 miles as alleged. It denied that any portable school was planned. It denied any racial motivation for the transfer of children. By 1925, it was known to School District that the Ridgewood Elementary School was in the path of the proposed widening of Eight Mile Road. (See Minutes, January 2, 1925, March 13 & 27, 1925, April 10, 1925.) Exactly when it was to be torn down is not known, although it was evidently torn down during the 1927-1928 school year. Sometime during 1925, between the employment of Mr. Down as Superintendent effective July 1,1925, and the completion of construction of the Grant school, there was a meeting of Mr. Down, Mrs. Mary Morris, Mrs. Thomas, a Mr. Robert Edmonds, Mrs. Alice Robinson and Mr. Andy Thomas. Three of those persons gave testimony regarding this meeting in the HEW hearing: Mrs. Thomas, Mrs. Morris and Mr. Edmonds. Mr. Edmonds, who is still alive, also testified at the trial. All three of these witnesses who testified about this meeting were elderly. Mr. Down was deceased before the HEW hearing was held. The testimony regarding this meeting, including when it occurred, is somewhat conflicting. Mrs. Thomas first testified that the meeting was arranged because the school board was intending to build a portable building at Jefferson or some other location for black children. Mrs. Thomas further testified that her attorney went with her to this meeting. The other witnesses who testified about the meeting did not include the attorney as one of those present. Mrs. Thomas testified that before the meeting was over, Mr. Down had drawn a plan for the school to be built in the Grant area and had promised to see that it would have water and gas, that it would be a brick school .and not a portable school and that more rooms would be built later. The proposed school, Mr. Down told the committee, would have a basement, janitor service, and everything that a school should have (HEW Transcript 32). She testified that her attorney accepted the plan that Superintendent Down had drawn up and suggested, and that the committee was satisfied with the results. (HEW Transcript 33). This testimony indicates that the building of the Grant school followed this meeting. Mrs. Morris testified at the HEW hearing regarding this meeting. She indicated that concern with regard to the building of a black school was expressed to Superintendent Down at the meeting. She also testified as to the committee’s fear that the proposed school would not be a modern brick building. Thus on page 127 of the HEW transcript she states: So we had heard so many things about this school being built and the type of school that the school board had planned, and they said at that time a portable school, which meant a really temporary — a wooden construction. We were horrified at that report. In fact we did not want the school. We did not feel it was a needed school as a tax burden for the people. So then, that’s why they sent this committee to interview the superintendent, to confirm whether it was true and what type of school that would be built if they were planning to build another. With regard to the meeting itself, she testified: Q Do you recall what you were told by Superintendent Down — what did you ask him and what did he tell you? A We asked him first if it was true that the board was planning another school and just what the reason was. Frankly, he didn’t have much of the specific reason to tell us that day, but he said it would be a school that we wouldn’t be ashamed of, and we told him what the hearsays were, and that we did not want the school, but of course we couldn’t say — tell the school board their thoughts, whether it was needed or not, but to our estimation no. HEW Transcript 128. She testified at id., 129, that she asked Mr. Down certain questions and wrote down his answers and took those questions and answers to her attorney. She apparently refers to the same attorney Mrs. Thomas mentioned, Mr. Brown. She testified further on page 131: Q Did Superintendent Down at the time describe to you what kind of school was going to be built? A Well, he said a modern school. Of course, we assumed at that time a brick structure with water facilities, toilet facilities and things of that sort, and nice floors and lockers. That’s what we assumed then, as a modern school. So he assured us that that would be in there. He said he was going to try some — well said he had just recently — he had visited Chicago and visited quite a beautiful school. He didn’t say white or colored, but he said they would be able to have progressive education in this school that they were not able to have in some of the other schools at that time. I think that’s just about all we got out of that interview. HEW Transcript 130-131. Mrs. Morris’ testimony, although somewhat confused as to date and time, and inconsistent in some parts concerning what was discussed, finally concludes at id., 170: Q Now you met with him to discuss the building of the Grant school? A We did not discuss it at all. We discussed questions about it. We were concerned as to whether it was true and what type of school that they would build. Q Did you ask them why they were going to build? A No we didn’t ask them. We didn’t ask him. Q Did he volunteer any reasons? A No, he didn’t have any outward conversation with Mr. Down. That was our first time meeting Mr. Down. And we didn’t have any personal conversation at all. Q Now you asked him if they were going to build a new school? A And what type of school. Q And you didn’t ask him why they were going to build it? A No. Mr. Edmonds’ testimony regarding this meeting, given at the HEW hearing in 1969, was also to the effect that Mr. Down merely told them that the Grant school was to be built and where it was to be built and gave no reason therefor. At the 1978 trial Mr. Edmonds testified that Mr. Down made additional statements at this meeting. However, he also admitted on cross-examination that his memory was more accurate in 1969 at the HEW hearing than at the trial in 1978. The court finds that, as Mr. Edmonds testified in 1969, Mr. Down did not give any explanation as to the reason for construction of Grant and, as Mrs. Morris testified, was not asked to do so. The Grant school as originally constructed consisted of six classrooms, an office and restrooms. Two of the classrooms were large rooms and the other four were approximately half the size of the two larger rooms. It is the plaintiffs’ claim that this design of the Grant school is evidence of an intent to discriminate against the black students. The scnool district denies this allegation and explains the somewhat unique design of this school as the product of the educational philosophy of Superintendent Down. Prior to his employment by defendant School District, Superintendent Down had been the principal of the Willard School in Highland Park, Michigan, and’while principal there had written Exhibit D-34, “The Highland Park Plan on Unit Rooms for Primary Grades,” published in October, 1921. This unit theory of instruction advocated the use of small classes and small rooms for certain portions of the curriculum with larger groups of students joining together for other portions. Superintendent Down’s advocacy of the unit theory of instruction was corroborated by Mr. Coit Ford, one of the original teachers at the Grant school. School District called as an expert witness Roderic Righter, now a Professor of Education at Oakland University in Michigan. Dr. Righter, who received a Ph.D from Wayne State University in Detroit in Elementary Curriculum and Instruction, is a former elementary school teacher, school administrator, and instructor at Wayne State University and assistant to the Dean of its College of Education. He testified that Superintendent Down’s theory of unit instruction, including an emphasis on individualized teaching, sought to achieve sound educational goals and was an innovative program for that period, the early 1920’s. John J. Houghton, a teacher at the Roosevelt school from 1933 to 1942, principal of that school from 1942 to 1953, principal of the single high school from 1953 to 1961, and superintendent of schools from 1961 to 1974, testified that this theory was employed at the Roosevelt school, where regular size classrooms were divided in half by solid partitions and that such partitions may have been used in the Wilson school. It should be noted that the Grant school was the first school built after Superintendent Down was hired. Dr. Righter testified that it is not uncommon for schools to be constructed so as to permit the operation of a particular method of instruction. The court finds that the construction of the Grant school, so far as the size of the classrooms is concerned, was for the purpose of implementing the unit theory of instruction and not for any discriminatory purpose or motive. At the time Grant school was being constructed, it was the opinion of school authorities that Jefferson “will be filled up this year” (1925-1926). The rapid growth of the area which Jefferson continued to serve after Grant was built is attested to by the evidence that Jefferson had an enrollment of 297 in October, 1925, when it opened, and still had an enrollment of 288 in October of 1926, after over 100 students from the Grant attendance area transferred to Grant. The increase in enrollment from the reduced Jefferson attendance area thus increased over 30% in that single year (D-54). Enrollment in this area continued to increase in 1927 and 1928 but not at the rapid rate it had in the previous year. The enrollment of other schools in the district was also increasing rapidly at that time, although the increases were not uniform. Thus while Wilson increased from 301 in 1925 to 477 in 1926, and Roosevelt increased from 458 to 576 during the same years, Harding only increased from 226 to 239, and Coolidge from 473 to 476. The court finds that it was extremely difficult for School District to make an accurate estimate when and to what extent the school enrollment would increase in any given year. The plans for the Grant' school (D-74 (a)-(f) establish that the portion of the building built in 1926 was only one-half of the contemplated structure. Thus the location of Grant on the site plan shows the part that was constructed as the northerly half of a building twice its size, and a boiler room placed so as to serve the larger proposed building. The court finds that it was the intention of School District to enlarge the Grant school to twice its original size by an addition when the increase in school population warranted it. The platted lots within the Grant attendance zone were clearly of sufficient number to require an elementary school when the area was fully developed. Indeed, when Forest Grove and Detroyal subdivisions became built up during the early 1950’s there were over 700 K-8 children residing in that area. Mr. William Norton, a member of the school board beginning in 1919 or 1920 until about 1930, testified at the HEW hearings. Although he also was in his eighties his testimony indicates that he was still alert. He testified that School District was growing rapidly in the 1920’s and that a number of schools were needed and built. Grant school was built, he testified, because there was an influx of families living in that area. He denied that it was built to remove Negroes from the Jefferson school. (HEW Transcript 259.) He denied that he had such motivation or intent and knew of no such motivation on the part of any other member of the board. He was aware later that the Grant school had a black enrollment. He did not recall when he learned of this and could not recall that Grant had a black faculty. He testified that the board left the hiring of faculty to the Superintendent. He testified that the board had and followed a policy of providing neighborhood schools. He further testified that the board would build a school somewhat larger than current needs to take care of expected enrollment increases and that it would also plan a school with the idea of adding to the building as enrollment increased. He further testified that although the district did not always meet it, that it was its policy that walking distance from a student’s home to school would be no more than one-half mile (HEW Transcript 289). A further consideration in choice of exact location was the availability of a parcel of land for a school. The Grant attendance area is compact and square in shape. Two of its four sides are the extreme south and west edges of School District, Along its easterly boundary is what is now an industrial area, north of which is the new high school. Both the industrial area and the high school site, which were vacant at the time that the Grant school was built, are included in its attendance area. There are not now nor have there ever been any streets through this industrial area. Immediately to the north of much of the residential portion of the Grant attendance area was a large vacant area which has since become the city yard for the City of Ferndale, in which it keeps trucks, supplies, equipment, and so forth. At the time that the Grant school was built there were no sidewalks leading from the Detroyal subdivisions or Forest Grove subdivision to the Jefferson school. The testimony of all of the witnesses is that the area was somewhat low and wet although not as swampy as the area directly to the west of Wyoming Avenue, which was a City of Detroit dump for a number of years and filled in this manner before being developed. Dwayne Gardner, associated with the Council of Educational Facility Planners, was called as an expert witness on behalf of School District. This Council is a professional, non-profit organization of educational facility planners whose original function was to give guidelines and standards for schoolhouse construction and more recently to disseminate new knowledge in terms of planning for school buildings. In addition to his doctorate in Educational Administration Mr. Gardner received additional post-doctorate training in community, urban and regional planning from American University. He testified that a one-half mile walking distance to school was viewed in the 1920’s by planners as a desirable ideal (Trial Transcript August 1, 1978, 19-20) and that the most efficient elementary school size recognized by planners in the 1920’s was approximately two classrooms per grade. He further expressed the opinion that considering the rapid increase in student enrollment between the years 1919 and 1925 in School District, the physical size and location of existing schools in 1925 and the distribution of students attending those schools, the fact that lots had been platted for homes in Forest Grove and Detroyal subdivisions, as shown on Exhibit G-8, in what was to become the Grant attendance area, and that families with young children were moving into that portion of the school district (as testified to by Mr. Morris and Mr. Norton), the fact that no paved streets extended to the Jefferson school from what was to become the Grant attendance area and that no sidewalks extended all the way to the Jefferson school, together with the projection that Jefferson would be full in 1926 or 1927, that indeed there was an educational need for an elementary school in the Grant attendance area in 1926 or 1927. Plaintiff has suggested that the Jefferson school could have been increased in size as an alternative to building the Grant school. The alternative costs in building a new school or enlarging an existing school, according to the testimony the court heard, are in many instances about the same. The witnesses were unable to say that there would be any saving cost per se by additions as opposed to new buildings and that there are too many variables which must be taken into account to generalize in that regard. Plaintiff contends that there was racial turmoil in the district in 1925 and 1926 when the black children residing in the Grant attendance district attended the Jefferson school and that this turmoil was the motivation for building Grant school. For this contention, it relies primarily on an unsigned report which bears the typed signature of Edgar F. Down, former superintendent, apparently prepared about 1940 or 1941 (G-45). The report deals with overcrowding at Grant and the possibility of moving some Grant pupils to Jefferson school to relieve that overcrowding. In that typed document it is stated, “Before the Grant School was built this district went through a period of turmoil because there were a large number of children in the Grant section in the Jefferson school.” Mr. Down was deceased at the time of the HEW hearing and what he meant by this particular language can only be determined by examination of the document. School District urges that the reference is not to “racial turmoil” and could refer to opposition by Grant parents to sending their children to Jefferson. However, given the context of the entire document, the court believes that the language refers to racial turmoil. The document was found among school records. There is no evidence it was presented to the board but the balance of its contents tend to confirm it was written by Superintendent Down personally. In contrast to this statement, the court has heard the testimony of Ernest Morris, a black man who attended the Jefferson school during the year in which children from the Grant attendance area attended Jefferson, that there were no racial problems. He testified that although there may have been one or two incidents between individual children that these were isolated. His mother, Mary Morris, testified to the same effect at the HEW hearing. Miss Kay Perry, a teacher at the Jefferson school in 1925-1926, testified at the HEW administrative hearings that she knew of no turmoil or racial disturbance at the Jefferson school that year. Coit Ford, who taught sixth grade at Grant school beginning in the fall of 1926 when it opened, testified that he heard nothing about any racial turmoil the previous year when his students had attended Jefferson school. He testified that the school community’s attitude toward the Grant school was very positive, and that he was not aware of any widespread racial animosity in the school district during that period. Had there been any racial turmoil the previous year, it seems highly improbable that Mr. Ford, teaching sixth grade children, would be totally unaware of this circumstance. Mr. Morris did testify that it was his recollection that one or two crosses were burned, presumably by the Ku Klux Klan, during the year that he attended Jefferson. They do not, however, appear to have had anything to do with black children attending Jefferson. One was in the yard of a black man who lived on the west side of Wyoming. Since that location was outside the school district, the court is unable to see how it can be related in any way to the attendance of black children at Jefferson. Mr. Morris was not able to state specifically the location where the other was burned. Whether this second cross was related to animosity toward black persons may be questioned in view of the testimony of Thomas H. O’Donoghue, a longtime Fern-dale resident, that during the period in question a cross was burned in the yard of a defeated Ferndale public official, a white Roman Catholic. The seventh and eighth grade students from the Grant attendance area attended Taft school, an otherwise exclusively white school, until 1942 with no evidence of any turmoil. The same is true of the high school. The evidence clearly preponderates in favor of the finding that there was no racial turmoil at the Jefferson school or the community during the 1925-1926 school year because black students were attending Jefferson. It must be kept in mind, also, that the petition for construction of Grant was dated September 29,1925, only three weeks or so after Jefferson had opened. The final circumstance to which the government points as evidence of segregatory intent is that the school board hired an all-black faculty for the Grant school and that the same principal served both Jefferson and Grant schools. The teachers at Grant were paid the same salary as teachers elsewhere in the district and it appears that all of them were capable and fully certified teachers. The reason for hiring black teachers at that time is nowhere expressed in the minutes of School District or the testimony of any witness. One of the later superintendents, Mr. Houghton, gave an opinion that it could have been for the purpose of providing role models for the black students or in the belief that black teachers might relate better to black students. Mr. Ford, one of the original black teachers at the school, testified that it was a common practice in those days. Neither these nor any other reasons are justifiable bases for a segregated faculty. However, the segregated faculty — all newly hired— does not, in the court’s opinion, indicate that the school was built for the purpose of separating black children from other children in the school district. Nor can any inference be drawn in this case that the student enrollment may have become all black because of the black faculty. Black residents were scattered throughout the school attendance area before Grant was built and the subdividers were actively offering the property to black families (Testimony of Maurice Cole, a longtime resident of Ferndale and amateur historian of the area, HEW Tr. 923) who had difficulty in those years in finding homes because of restrictive covenants, the attitudes of many residents in white neighborhoods, and inadequate incomes. These subdivisions without water, sewers, or paved streets would be accepted only by those who could not afford anything else or who were prevented from living in many areas because of racial prejudice. The race of the faculty at Grant school did not influence the pattern of residential development. Although Grant and Jefferson schools shared a single principal for a number of years, the court finds no significance in that circumstance for the issues in this case. The Grant school had a principal’s office and records relating to Grant pupils were kept there. The same was true of Jefferson. Mr. Kerns, principal of the two schools, spent his mornings at Jefferson and afternoons a