Full opinion text
OPINION FOX, Chief Judge. This opinion marks the conclusion of Phase II of these lengthy school desegregation proceedings. In an opinion issued August 23, 1977, at the end of Phase I of this action on remand from the Court of Appeals for the Sixth Circuit, this court ruled that the Benton Harbor Area School District had failed to rebut the prima facie case of de jure segregation established against it during an earlier trial. The present opinion is concerned with the liability of those parties who have been referred to as the “added defendants” during the course of these proceedings: William G. Milliken, Governor of the State of Michigan; Frank J. Kelley, Attorney General of the State of Michigan; John W. Porter, Superintendent of Public Instruction of the State of Michigan; the State Board of Education; the Berrien County Intermediate School District and its Superintendent; the Eau Claire School District and its Superintendent, Donald McAlvey; and the Coloma Community School District and its Superintendent, William Barrett. The Phase I opinion may be looked to for an examination of the procedural history of this litigation, a discussion of the segregation problem, and the applicable legal principles. Berry v. School District of City of Benton Harbor, 442 F.Supp. 1280, 1283-95 (W.D.Mich.1977). The following opinion constitutes the court’s combined Findings of Fact and Conclusions of Law on the issues raised in Phase II. The liability of the various parties will be separately considered. I. The State Defendants. The claims against the State defendants are based essentially upon two grounds. First, the intentional actions or inactions of the State defendants perpetrated de jure segregated conditions of the Benton Harbor Area School District (BHASD) because of the total racial impact upon the entire district. Second, that the State Board of Education (SBE) acted improperly in the approval of two petitions for the transfer of property out of the BHASD, thereby further increasing de jure segregation in the district. These two grounds will be examined in order. A. Action and Inaction of State Defendants. As noted above, a previous opinion of this court found the BHASD Board of Education guilty of the de jure segregation of the Benton Harbor public schools. The opinion detailed constitutional violations in almost every area of school administration and found that their segregative effects pervaded the entire school district. Among the violations established were the assignment of teachers upon the basis of race, discriminatory “tracking” programs at one junior high, disparate conditions of facilities and educational supplies, intact busing, segregative feeder patterns, discriminatory placement of portable classrooms and temporary facilities, and the inconsistent application of a neighborhood schools policy. The plaintiffs must show, in order to prevail against the state defendants, that those defendants, to a substantial degree, contributed to the creation or the maintenance of the segregated schools in Benton Harbor. “[W]here state officials, purporting to act under state authority, invade rights secured by the Federal Constitution, they are subject to the process of the federal courts in order that the persons injured may have appropriate relief.” Sterling v. Constantin, 287 U.S. 378, 393, 53 S.Ct. 190, 193, 77 L.Ed. 375 (1932). The Governor and the Attorney General are proper parties in litigation of this nature. Bradley v. Milliken, 433 F.2d 897, 905 (6th Cir. 1970). As this court has previously stated: “The State of Michigan cannot parcel out its jurisdiction and deliberately achieve by bits and pieces what it could not do directly by statute. When such a situation is alleged to exist, the court must look closely at the actions of each agency to determine whether it has met its constitutional responsibilities. To allow each agency to plead constitutional violations of other agencies in exculpation of its own, would be to mock the Constitution of the United States and the Constitution of the State of Michigan.” Oliver v. Kalamazoo Board of Education, 368 F.Supp. 143, 185 (W.D.Mich.1973), affirmed, 508 F.2d 178 (6th Cir. 1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975). In addition to the guarantees of the United States Constitution, the Michigan Constitution provides that: “Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin.” (Emphasis added.) Michigan Const, art. VIII, § 2. The official Constitutional Convention Comment states that: “The anti-discrimination clause is placed in this section as a declaration which leaves no doubt as to where Michigan stands on this question.” (Emphasis added.) This clear, precise constitutional declaration of educational policy mandates all state and school authorities to eliminate discrimination wherever it exists in the school system. It mandates the Governor as the chief executive officer, and the Attorney General. The language “without discrimination” is simple, affirmative language, and is not limited to intent. Discrimination in the school system must be eradicated, root and branch. The executive power of the State of Michigan is vested in the Governor. Mich. Const, art. V, § 2. The Governor “shall take care that the laws be faithfully executed” and may initiate proceedings in the name of the state to restrain constitutional violations, Mich.Const. art. V, § 8. In addition to being the chief executive of the State, he is an ex officio member of the State Board of Education with a voice but without a vote. The voice of the chief executive of the State can contribute to the enforcement of the State’s duty to support the United States’ and the State of Michigan’s constitutional obligations, which he has sworn to do. His action or inaction in words and deeds effects support or denial of constitutionally guaranteed rights. At final argument, the plaintiffs requested the Governor be dismissed as a defendant. That motion is denied. The Attorney General, as chief law enforcement officer of the State, swears to support the Constitutions of the United States and of the State of Michigan. Mich. Const. art. XI, § 1; M.C.L.A. § 168.80. The Attorney General, however, has not taken any action to fulfill his constitutional duties in the face of the pervasive segregation of the Benton Harbor Public Schools. The Sixth Circuit has recently reaffirmed its holding that “[S]tate officials [can] be held jointly responsible with local authorities for segregated conditions in local schools, where the state officials [have] shown ‘consistent inaction in preventing increased segregation’ and [have] consistently provided funding and other assistance to the local district. Oliver v. Michigan State Bd. of Ed., 508 F.2d 178, 186-87 (6th Cir. 1974), cert. den., 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975).” United States v. School District of City of Ferndale, 577 F.2d 1339, at 1348 (6th Cir. May 17, 1978). Although the Ferndaie case was brought under the Equal Educational Opportunities Act of 1974 and Title IV of the Civil Rights Act of 1964, the Court held that the principle of joint liability was just as applicable there as it is in cases under the Fourteenth Amendment. Despite the filing of this case more than ten years ago, despite a finding in 1970 that the BHASD illegally segregated its teaching staff and engaged in discriminatory “tracking” programs at the Benton Harbor Junior High School, and despite a finding by Judge Kent that the BHASD neighborhood school policy, as constituted, denied equal educational opportunity, the Attorney General of this State has consistently failed to take action to prevent continued and increased segregation in the Benton Harbor public schools. He has, to a substantial degree, by his actions and inactions, contributed to the creation and maintenance of segregated conditions in the Benton Harbor Area School District. Where, in cases such as this, a pattern of violation of constitutional rights is established, the affirmative obligation under the Fourteenth Amendment to remedy those violations is imposed not only on the local school district, but also upon the State officials. Bradley v. Milliken, 338 F.Supp. 582, 594 (E.D.Mich.1971), affirmed, 484 F.2d 215 (6th Cir. 1973). School districts in the State of Michigan are instrumentalities of the State and' subordinate to the SBE and its Superintendent. The SBE exercises “[[leadership and general supervision over all public education.” Mich.Const. Art. VIII, § 3. Hence, the segregative actions and inactions of a local board of education are the actions of an agency of the State of Michigan and may be attributable to the SBE and its Superintendent. Bradley v. Milliken, supra, 484 F.2d at 238-42. In Phase I of these proceedings the intentional segregation of the Benton Harbor public schools was established. No evidence has been introduced during Phase I nor during the present phase of this litigation to show why the actions of the BHASD Board should not be attributed to the SBE and the Superintendent of Public Instruction. The powers and constitutional responsibilities of the State Board of Education have been extensively examined in other cases. See e. g., Bradley v. Milliken, 484 F.2d 215, 245-59 (6th Cir. 1973), rev’d on other grounds, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974); and Oliver v. Kalamazoo Board of Education, 368 F.Supp. 143, 163, 185-90 (W.D.Mich.1973). That examination of the law need not be repeated here and is incorporated herein by reference. The record painted in those cases, unfortunately, is one of failure on the part of the SBE and its Superintendent to meet their constitutional responsibilities. As I concluded in Oliver, supra: “In sum, the Superintendent had general supervisory authority over public education in Michigan between 1954, the date of the Brown decision, and the adoption of the new [State] Constitution. The State Board of Education and the Superintendent as its chief executive officer have shared this constitutional power between 1963 and the present. During this entire period, the Superintendent and the Board were aware of racial segregation in Michigan public schools through complaints to this effect and then through their own statistical data. Still, the Superintendent and the State Board have persistently failed to act in a meaningful way to ameliorate the situation. “These facts compel the conclusion that the State of Michigan, through the State defendants in this case, has intentionally sanctioned the segregation of schools by local boards, and has made a substantial contribution to the creation and maintenance of segregated public schools . . .” Id., 368 F.Supp. at 190. In both the Bradley and the Oliver case, the SBE and its Superintendent had a full, fair opportunity to contest the findings of the courts that they had intentionally sanctioned the segregation of schools by local boards. In both cases they were found wanting. In Bronson v. Board of Education, 525 F.2d 344, 349 (6th Cir. 1975), the Sixth Circuit commented that “we do not believe that school desegregation cases are so different from other types of litigation that principles of res judicata and collateral estoppel should never be applied to them.” Cf., United States v. School District of the City of Ferndale, supra, at 1348-1350. Had plaintiffs made the appropriate motion, it would seem that the findings in both Bradley and Oliver as regards the actions of the SBE on a statewide basis could be applied in the instant case, applying accepted principles of the offensive use of collateral estoppel. Such a motion was not made and collateral estoppel will not be here applied. There is, however, a great amount of evidence in the record in the present case to justify the same conclusion here that I made in the above-quoted portion of Oliver, supra. See also United States v. School District of City of Ferndale, supra, at 1348. In 1966, the SBE and the Michigan Civil Rights Commission entered into a “Joint Policy Statement on Equal Educational Opportunity” pledging themselves to the elimination of segregation in Michigan public schools. This statement reads in part: “The State Board of Education and the Michigan Civil Rights Commission jointly pledge themselves to the full use of their powers in working for the complete elimination of existing racial segregation and discrimination in Michigan’s public schools. It shall be the declared policy of the State Board of Education that in programs administered, supervised, or controlled by the Department of Education, every effort shall be made to prevent and to eliminate segregation of children and staff on account of race or col- or.” (Emphasis added.) In September 1967, the Joint Policy Statement was followed up by a letter from the State Superintendent suggesting the local superintendents adopt a five-point plan to facilitate integration. Despite the lofty words of these documents, the SBE took no action which can be said to be reasonably related to the goal of preventing and eliminating the purposeful segregation then existing in the Benton Harbor Schools. The State Board cannot claim it was without information about the existing conditions in the BHASD. During hearings on petitions to transfer property out of the Benton Harbor district, as will be discussed later, the SBE received literally volumes of testimony and documents about the problems and conditions of the Benton Harbor district. The SBE was also the recipient of numerous communications from the local board, the local branch of. the NAACP, and private individuals informing the SBE of the state of affairs there and beseeching the SBE not to undertake certain acts which could increase segregation in Benton Harbor. On two occasions the State Board made or participated in exhaustive studies of the Benton Harbor schools. On the first occasion, the Benton Harbor Board requested the help of the SBE in resolving racial tensions at Benton Harbor High School which resulted in the outbreak of violence there on the morning of January 15, 1971. The request led to an SBE staff study of the district and an eighteen-page report. On the second occasion, as a result of the high school disturbances and the concurrent attempts to transfer large blocs of property out of the BHASD, the SBE had consultants from its staff serve on a “Blue Ribbon Committee” which was formed in an attempt to resolve the problems of the BHASD. The SBE was also the recipient of reports of the so-called “Redistricting Planning Committee,” which was formed to implement the suggestions of the Blue Ribbon Committee. The SBE staff report, made after the high school disruption, identified the Benton Harbor schools as “racially isolated,” possessed of a changing racial population, racially concentrated, and lacking in Black teachers and administrators. Significantly, the report described at length the school desegregation litigation then affecting the district. It was noted that Judge Kent had found that the assignment of teachers upon the basis of race and the “track system” in use at Benton Harbor Junior High School unconstitutionally denied Black students equal educational opportunity. The State defendants cannot claim that Judge Kent’s finding of no de jure segregation immunized them from any responsibility to take action to remedy the situation in Benton Harbor, for even the staff report correctly stated that this remained a “substantial issue of law:” “Lacking the record in the Deal and Goss cases, the Court indicated that it was bound by these cases, but then went on to make additional findings for the development of a record for presentation of this case to the U. S. Court of Appeals. The Court found that: (1) Black children in Benton Harbor, by being restricted to a black or predominantly black neighborhood school, are denied an equal opportunity for education; and, (2) The neighborhood school concept, as it exists in the Benton Harbor School System, results in the denial of equal opportunity to the black child who is forced to attend a predominantly-black school. On the basis of these findings of fact, the Court indicated that if this were a case of first impression it would reach a conclusion contrary to that reached by the Court of Appeals in Deal. The Court expressed the view that it did not have the authority to reach such a conclusion. However, the Court expressed satisfaction that there was a substantial issue of law on the findings of fact upon which the plaintiffs may base a judgment; and that there was a substantial issue of law upon the findings of fact which this Court has made which would lead it to reach a conclusion contrary to that reached by the Court of Appeals in Deal. Therefore, the Court granted the right of appeal before any decree for relief was entered. This appeal is now pending.”- This very report of the SBE staff should have put the SBE and its Superintendent on notice that it could not safely continue its policy of intentional inaction with regard to the Benton Harbor schools in reliance on the opinion of Judge Kent. At the very least, Judge Kent’s opinion imposed on the SBE the affirmative obligation to assist the BHASD in desegregating its teacher staff. This the SBE failed to do. By virtue of its membership on the “Blue Ribbon Committee,” and its receipt of the reports of the “Redistricting Planning Committee,” the SBE was again exposed to a tremendous amount of information that alerted it to the continuing segregation in Benton Harbor. The Board was aware that many of the proposed “solutions” to Benton Harbor’s problems would have a segregative result. It was aware that the concerns expressed to the Committees by the members of the community, such as “stability of the area,” “safety of children in the schools,” and “protection of property values,” were often code words for racial fears. Finally, the SBE was aware that many of the problems of the Benton Harbor public schools were the reflections of the intense social and economic polarization of the broader community, in areas that the SBE and the local district had responsibility in dealing with inside the schools. Despite the fact that the State Board was in possession of volumes of information regarding the extremely serious problems of the Benton Harbor district, information that could reasonably lead it to no other conclusion than that the district was suffering from state-imposed segregation, the State Board of Education took no action reasonably calculated to remedy these constitutional violations. The SBE’s studied and intentional inaction contributed to the maintenance of segregated education in the Benton Harbor public schools. The record in this case compels the conclusion that the State Board and its Superintendent intentionally sanctioned the segregation of the Benton Harbor Area School District. The State Board’s persistent failure to implement the Joint Policy Statement of 1966 has been effective notice to the BHASD of a policy of non-supervision in the area of desegregation. In light of the information possessed by the SBE and the SBE’s failure to act upon that information, the BHASD Board was able to conclude that it could take actions for perpetuating Black schools without the interposition of the State Board and the State Superintendent. It is not a pleasant task for this court to point the finger of blame toward public officials who are obviously conscientious and devoted public public servants. When, however, those officials’ actions and inactions have the natural, probable, and actual result of contributing to the maintenance of segregated public education, the court has the responsibility to find liability on the part of those officials. The impact of the State defendants’ inaction was stated quite simply by one former Benton Harbor school board member; . . [We were] calling upon the State Board of Education for help. We needed help. We needed it terribly bad. We called upon the State Board of Education and didn’t get an answer.” The State defendants failed in executing their constitutional responsibilities under the State and Federal constitutions. B. The Property Transfers. Although the state law relative to the transfer of property from one school district to another was set out by the Court’s Phase I Opinion, the examination will be summarized here because of its importance to the Phase II Opinion. Under the Michigan School Code, a county board of education (that is, the intermediate board) may, in its discretion, detach property from one district and attach it to a contiguous district upon the petition of two-thirds of the resident owners of the land to be transferred. M.C. L.A. § 340.461. Only if the transfer involves more than 10% of the district’s state equalized valuation (SEV) need the voters of the district losing property concur. Id. However, any property owner of the land considered for transfer, or any district affected by the transfer, may appeal the grant or denial of transfer by the county board to the State Board of Education. M.C.L.A. § 340.467. The appeal acts to hold the decision of the county board in abeyance until the SBE confirms, modifies, or sets aside the order of the county board of education. Id. Although after consolidation there were several small attempts to transfer property out of the BHASD to contiguous districts, at issue here are seven major property transfer attempts. The information relevant to these transfer petitions is as follows: [See following illustration] What has been called the Sodus II Petition was an inclusive portion of the Sodus I Petition that had earlier been denied. Therefore, totalling the number of children and the total SEV of the property involved in the first six petitions, it can be seen that areas including 1,661 children and comprising some 26% of the districts’ total SEV were petitioning for transfer out of the district. The total enrollment and percent black for these years of the Benton Harbor Public Schools and the neighboring district to which transfers were sought were as follows: These transfer activities increased in intensity as the BHASD became a majority Black district. The petitions sought transfer to districts that were either predominantly or nearly entirely White. Therefore, these areas, in addition to containing some 15% of all students in the BHASD, also contained one-third or more of the total number of White students in the district. These areas were also areas of suburban-rural character where the greatest potential growth in the district’s White student population and SEV lay and contained numbers of White students who would have been in the public schools but for their parents’ dissatisfaction with the Benton Harbor schools. The SBE approved two of these transfer petitions — those, involving the Eaman area and the Sodus II area. The approval of the Eaman transfer was a reversal of the Intermediate Board’s denial of transfer. The facts surrounding these two transfers will next be examined. 1. The Eaman Transfer. The former Eaman School District, a kindergarten through eighth grade (K-8) district, did not participate in the election on June 17, 1965 which resulted in the consolidation of the School District of the City of Benton Harbor with sixteen neighboring K-8 districts. Shortly after consolidation, however, the Eaman district voted in December 1965 by a margin of 3-1 to annex to the Benton Harbor Area School District pursuant to M.C.L.A. § 340.431 et seq. In September of 1969, residents of the Eaman Area presented petitions to the Berrien County Intermediate Board bearing signatures of 90% of the resident property owners in Eaman requesting the transfer of the major portion of the former Eaman district to the Coloma Community School District. The proposed transfer was opposed by the Benton Harbor Board and the Coloma Board took no position. After several hearings, the Berrien County Intermediate School District (BCISD) Board voted on October 2, 1969, unanimously to deny the petition for transfer. The reasons given by one BCISD Board member in support of the denial were as follows: “1. No action or indication on the part of the Coloma Board as to whether or not they would be willing to take the students has been received by the Intermediate School District Board of Education. 2. Political alignment by township has no connection with educational programs. 3. The social, business, and church interests were minimal toward Colonia. 4. The distance to the high school of either of the school districts was about the same. 5. A very important point to be considered if this transfer were permitted is that it could set off a chain reaction whereby many other property transfer requests would be made, thus fragmenting the district. 6. The Coloma Community School District is currently crowded and the additional number of students at this time would place a burden upon the district. 7. The Coloma Community School District would face financial difficulties inasmuch as they would be responsible for the purchase of the old Ea-man school building, and further, they would receive no operating taxes or state aid since the students are enrolled by the fourth Friday in the Benton Harbor School District.” The Eaman petitioners promptly perfected their appeal to the SBE and a hearing was held before the SBE-appointed Hearing Officer, Raymond Godmer. At the conclusion of the hearing, Mr. Godmer filed his report with Superintendent Porter and recommended that the SBE “uphold the action” of the BCISD and deny the transfer. Dr. Porter in turn submitted the Hearing Officer’s Report to the Board, also recommending the transfer be denied. On June 24, 1970, however, the SBE approved a motion by Board Member Dr. Peter Oppewall and seconded by Board Member Brennan, that the SBE reverse the action of the Intermediate Board and permit the transfer to Coloma. The motion was supported by Oppewall, Brennan, Deeb and Novak. Board Member Kelly abstained. Finally, Board Member Riethmiller voted “nay” for the reason that “there was no discussion as to the rationale for the motion.” The Benton Harbor district registered vociferous displeasure with the SBE action and demanded reconsideration of the matter. The SBE then approved a rehearing on the Eaman case, but limited the rehearing to the question of whether the Eaman school building was included in the property transfer. There was, however, some confusion as to whether the rehearing was as to the school building alone or as to the entire matter. The BHASD Board and Dr. Porter felt the rehearing went to the entire matter. The petitioners, of course, felt to the contrary. At the rehearing, the representative of the Attorney General ruled that, “the scope of the hearing includes the entire matter of the transfer.” The report of the Hearing Officer for the rehearing recommended that the entire transfer be rescinded. On October 13, 1970, how•ever, the SBE, again on a motion by Oppewall which was seconded by Brennan, modified its previous order to also include the transfer of the real property. The determination of an “equitable payment” was left to be determined at a later date. Ultimately, a sum of $40,000 was determined to be “equitable.” That sum of money was eventually paid by the Coloma Community School District and the transfer was completed. It has long been held by the Supreme Court that state and local officials may not avoid the process of dismantling a dual school system by transferring property out of a previously existing school system. United States v. Scotland Neck Board of Education, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75 (1972); Wright v. Council of City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972). See also Bradley v. Milliken, 484 F.2d 215, 250 (6th Cir. 1973). As the Court said in Scotland Neck, quoting Emporia: “We have today held that any attempt by state or local officials to carve out a new school district from an existing district that is in the process of dismantling a dual school system ‘must be judged according to whether it hinders or furthers the process of school desegregation. If the proposal would impede the dismantling of a dual school system, then a district court, in the exercise of its remedial discretion, may enjoin it from being carried out.’ Wright v. Council of City of Emporia, supra, [at 460, 92 S.Ct. at 2202.]” United States v. Scotland Neck Board of Education, supra, 407 U.S. at 489, 92 S.Ct. at 2217. The factors to be considered by the district court in such an instance are: (1) the effect of the transfer upon racial impact; (2) whether the several schools were previously identifiably White or Black; and (3) the timing of the separation. Wright v. Council of City of Emporia, supra, 407 U.S. at 464-66, 92 S.Ct. 2196. The racial impact of the transfer need not be overwhelming. In the Scotland Neck case, the previous county-wide system was 77% Black and 22% White. The proposed new city district would have been 43% Black and 57% White, leaving the remaining district 89% Black and 10% White. The district court had concluded that the separation, occurring while the county’s school district was under a desegregation order, was “enacted with the effect of creating a refuge for white students . and interferes with the desegregation of the Halifax County School System.” United States v. Halifax County Board of Education, 314 F.Supp. 65, 78 (E.D.N.C.1970). In Emporia an even smaller racial impact as a result of a newly proposed district was held to warrant the intervention of the district court’s equitable powers. There, the previous county-wide system was 66% Black, 34% White. The proposed new city district would be 52% Black and 48% White, leaving the remaining county district 72% Black and 28% White. The broad language of these two cases has, of course, been limited by subsequent Supreme Court cases. In Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), the Court explained that under Emporia and Scotland Neck, a plaintiff need show only discriminatory racial impact, rather than discriminatory purpose, where the “issue was whether the decision [of a school district] was consistent with an outstanding order of a federal court to desegregate the dual school system found to have existed in the area.” In such instances, there is no need for the district court to find “an independent constitutional violation.” Washington v. Davis, supra, 462 U.S. at 243, 96 S.Ct. 2040. As noted above, the actions by the SBE relevant to the Eaman transfer occurred during the period between October of 1969 and February of 1971. The Benton Harbor Area School District was during the entire period this matter was before the SBE, the subject of litigation in which plaintiffs sought to prove de jure segregation, a complaint this court has upheld. Although there has been no finding of de jure segregation at the time the SBE first approved the Eaman transfer on July 2, 1970, the district, at the very least, had an affirmative duty to desegregate its teaching and administrative staff in light of Judge Kent’s bench opinion. The SBE was also aware that serious problems faced the BHASD on appeal on the question of de jure segregation. Judge Kent, in effect, said: “But for the Deal case, I would have reached a conclusion that the plaintiffs proved de jure segregation.” Transfer of the Eaman area, an area that had never had a Black teacher in its school, would frustrate any teacher desegregation order involving the Eaman School. The transfer met the other requirements of Emporia and Scotland Neck in that the Eaman School was previously identifiably White upon the basis of students, faculty, and physical conditions and in that the transfer of a large, all-White area would have a substantial ac-' tual and psychological effect upon racial ratios in the district. Had Judge Kent ruled that the BHASD was de jure segregated, rather than merely inviting the Court of Appeals to so rule, the Eaman transfer could have been enjoined by this court upon the showing of the three factors mentioned above, and without proof that the transfer was motivated by a discriminatory purpose. I believe the district court’s equitable power should be no less where a transfer attempt is made during the course of litigation on the issue of de jure segregation To hold otherwise would be to encourage an unseemly race between parties seeking transfer out of a district and plaintiffs seeking to prove state-enforced segregation. To be consistent with Washington v. Davis, supra, however, the state’s action could not be considered upon the question of its ultimate liability absent a showing of “an independent constitutional violation.” In approving the Eaman transfer, this court finds such an independent violation was committed on the part of the SBE. The “Fourth Friday” count for the Eamon elementary school for the five years it was within the BHASD was as follows: Total Year Enrollment 1965- 66 119 1966- 67 116 1967- 68 81 1968- 69 77 1970-71 94 Percent Percent White Black 100.0 0.0 99.1 0.0 100.0 0.0 98.7 1.3 93.6 6.4 The area was “Whiter” than it appears, for in the 1969/70 school year it became the seventh and eighth grade center for the Eaman-North Shore-Lafayette cluster of schools. Therefore, Eaman’s racial statistics for the years 1969/70 and 1970/71 reflect the fact that it was receiving students from two schools that averaged 5% Black over those years. The children in the Ea-man transfer area were, in fact, entirely White. The reasons given in testimony before this court by supporters of the Eaman transfer differ from those given at hearings at the time of the transfer and differ from the facts before this court. One supporter of the Eaman transfer was Louis Gelder who has lived in the Eaman transfer area since 1968, previously living in another area of the old Eaman School District. He has been a member of the Coloma Board since 1971. Mr. Gelder’s children attended Benton Harbor schools for kindergarten, and then were sent to parochial schools. However, after a few years in parochial schools to receive religious training, Mr. Gelder wanted his children to obtain a good vocational education and he felt that Coloma had better vocational education than was available in the Benton Harbor schools. Mr. Gelder also testified that the Eaman area was pressured to vote in favor of annexation to the BHASD when Benton Harbor refused to accept Eaman area high school students on tuition if the vote was to the contrary. Mr. Floyd Mattheeussen, a former representative in the Michigan legislature and a teacher at Coloma High School was a strong supporter of the transfer, even though he was not a resident of the transfer area. According to Mr. Mattheeussen, the Eaman area had a “right” to be in the Coloma Community Schools and the Coloma Community Schools were trying to build a base of enough students in the high school to offer a broader academic program. He also stated that the Eaman district would have preferred to join Coloma, were the two districts contiguous in 1965; that Benton Harbor used duress to get the Eaman voters to favor annexation; that Benton Harbor High School is much farther than Coloma High School from the Eaman area; and that both the Eaman area and the Coloma School District are made up of “farm people,” resulting in a community of interest between the two groups. Fear to have their children in Benton Harbor Schools, he testified, was not a factor any of the petitioners conveyed to him as a motivation for the transfer. The reasons given by Messrs. Gelder and Mattheeussen in favor of the transfer do not agree with the facts as they come to light in the record before the court. It is not true that the Eaman residents were required to travel much farther to Benton Harbor High School than to Coloma High School. The two schools are in fact equidistant from the Eaman area. The Benton Harbor vocational education program was perhaps the best in Berrien County. There is no evidence that the BHASD exerted any pressure upon the Eaman voters to approve annexation- — any incentive to annex to Benton Harbor was the product of Michigan statutes favoring consolidation of K-8 with K-12 districts. This conclusion is bolstered by the fact that the neighboring Riverside district voted to remain an independent K-8 district at this time. Nor were the Eaman residents the only “farm people” in the Benton Harbor schools. The Stump, Sodus, Pearl, Spinks Corners, Millburg, Martindale, and Johnson areas were also comprised of primarily agricultural land. The primary reasons offered by the petitioners in testimony before the SBE’s Hearing Officer were far different. Mr. Gelder stated at the SBE hearing that he was concerned with the “lack of discipline,” the “unconcerned parents” in the Benton Harbor system, and the increasing vandalism. One witness, a real estate agent and Eaman resident, spoke of his concern over declining real estate values in the Eaman area and elsewhere in any “property which is bound by the Benton Harbor School System.” This witness also testified that “traveling down into the central city location is not conducive to a good education. Other petitioners also testified about the difficulty in selling property within the BHASD and of being afraid to send their children into the Benton Harbor Schools. Although most of the concerns voiced were generally limited to code words indicating fears of continuing in a majority-Black district, some witnesses openly expressed racial concerns. Also before the SBE was the testimony of representatives of the BHASD pointing out that the transfer, if approved, would destroy any further progress towards true consolidation of the BHASD, would adversely affect racial integration in the district, and would set loose a flood of other property transfer requests from the other outlying, predominantly White, areas of the district. The SBE Hearing Officer, in his report to the SBE, stated that the children of the area under consideration would not receive a better education if transferred, and would not have better and safer transportation to the receiving district, and that it was questionable that the petitioning area had greater social ties to the receiving than to the losing district. Most importantly, the Hearing Officer stated that there were “socio-economic” reasons for requesting the transfer, that racial problems were involved, and that approval of the transfer would start a trend for transfer of other properties from the area. Despite these warnings about the racial motivations for the transfer and the long-term implications of the transfer upon Benton Harbor as a viable, integrated school district, and despite the recommendations of its Hearing Officer, Raymond Godmer, and its superintendent, Dr. Porter, the SBE reversed the action of the Intermediate Board and approved the Eaman transfer. The notice of these racial concerns received by the SBE at the rehearing of the matter upon Benton Harbor’s appeal was even more extensive. The rehearing, held September 3, 1970, was before a different hearing officer, Mr. Roger Boline. Mr. Boline was immediately advised by BHASD’s attorney, Mr. Robert Small, that he and the BHASD Superintendent and other Benton Harbor staff members had not been able to attend the initial hearing before Mr. Godmer because of their involvement in the original trial of this school desegregation case before Judge Kent. Mr. Small stated they: “. . . were temporarily engaged in the trial of a law suit in the federal court in Kalamazoo, wherein certain people were attempting to force racial integration on this district. We were thus engaged at the time we received notice of the previous hearing, and applied for an adjournment on these grounds. We were refused it. Mr. Sreboth was released from the court room for long enough to appear. We believe it is only fair that the record show the reason for our failure to appear at the previous hearing.” As noted above, the rehearing went to the entire matter of the transfer, in light of the ruling of the Assistant Attorney General then present. The SBE was warned again of the affect of the Eaman transfer on the continued stability of the district, the racial implications, and the danger of additional fragmentation. The Hearing Officer again recommended that the SBE deny the transfer for these same reasons, noting specifically that the transfer from Benton Harbor “will increase racial segregation in that school district.” As previously noted, justification for approval of the transfer appears in the SBE minutes. Superintendent Porter had no recollection of any discussion in which he participated relative to reasons for reversing the denial of transfer by the Berrien Intermediate Board. Marilyn Kelly, a State Board member from January 1, 1965 until January 1, 1977, testified, however, that there were “extensive and heated discussions” about the racial implications of the Eaman transfer. Ms. Kelly abstained from voting because of her concerns over the impact of the transfer on the continued stability of the district and its inability to integrate. The discussion on the racial implications likely occurred at the rehearing. Board Member Dr. Peter Oppewall, who served from January 1, 1965 until January 1, 1971, was initially unsure if the racial issues were raised, but later confirmed that they were. At the very least it is clear that, at the initial hearing, the Board members were aware from the Hearing Officer’s report that they were transferring a large, all-White portion of a majority-Black (or nearly so) school district to a neighboring, nearly all-White, school district. The issue was also expressly raised at the time the Board received the Hearing Officer’s report on the rehearing of the Eaman matter. At the very same meeting of the SBE that set a deadline for payment for the Eaman building by Coloma, a time when the entire Eaman transfer could still have been denied, the Board had the following extensive discussion of the Benton Harbor situation: “XXI. PROPERTY TRANSFERS THAT FURTHER THE SEGREGATION OF DISTRICTS. Mr. Ronald Edmonds, Assistant Superintendent for School and Community Affairs reported to the Board on the involvement of the staff in Benton Harbor to date. He explained that the Superintendent of Schools had requested a study team from the Department to be sent to the district because of two problems: (1) violence at the secondary school, and (2) the growing number of property transfer requests from the white fringe areas to withdraw from the district and join neighboring white school districts. Dr. Morton suggested that the Board pass a resolution indicating that, consistent with the Memorandum of Agreement between the State Board of Education and the Civil Rights Commission, the Board would not view with pleasure any property transfers that will significantly alter the racial composition of a school district and move toward further segregation. By adopting such a resolution, Dr. Morton stated that the Board would be reinforcing the position it adopted several years ago. He further said that this matter should be separated from the Benton Harbor situation. Dr. Morton moved, seconded by Miss Kelly, that consistent with the memorandum of agreement between the State Board of Education and the Civil Rights Commission, any requests for property transfers that show evidence of significantly militating against the integration of a school district and/or moving in the direction of greater segregation, would be looked upon as contrary to state policy, and, further, that this action be forwarded to the Attorney General for review. Mr. Deeb questioned the use of words like ‘significant’ and ‘contrary to state policy,’ in the motion. He said that if the staff, in making a recommendation to the Board about a property transfer, reported that a certain number of people involved in the transfer comprised a significant number, then the Board would be placed in a position where it had to deny the transfer on the basis of segregation. He said he had no objection to the policy except that it might prejudice the Board in terms of property transfers. Dr. Porter stated that that was a legal question and he would not be able to respond to whether or not the words ‘contrary to’ would place the Board in a prejudicial position in regard to property transfer cases that come before it. Mr. Deeb commented that it would be appropriate to ask the Attorney General to inform the Board whether such action would place the Board in a prejudicial situation. Mr. Brennan stated that he had no objection to the motion but he felt it was redundant because the Board took a position, when it passed a resolution with the Civil Rights Commission, opposing segregation and in favor of affirmatively creating integration. He said this issue came up because of the property transfer in the Benton Harbor Area. He emphasized that it is his intention to review every case before the Board on its own merits. Mr. Brennan said that the word ‘significantly’ is important. The Board, not the staff, should determine what is meant by ‘significantly.’ He said there may be sound educational reasons for making a transfer, but if it would cause a change in the racial balance, the motion implies that such a transfer cannot be made. He stated that the original property transfer in Benton Harbor that has taken place did not significantly change the racial balance. Other requests for transfers have been made as a result of that one, but the Board must consider them as they are presented. Mrs. Miller stated that a racial balance of 50-50 is dangerous because it can change very rapidly in one direction and the Board should not not encourage this type of imbalance. Miss Kelly said that 80 children were involved in the Benton Harbor property transfer case and numbers, rather than percentages, become significant. Mr. O’Neil said he agreed with the need for the motion. He felt it was important that the proposed motion receive the review and concurrence of the Attorney General. Mr. Brennan indicated he would vote for the motion, but he wanted the minutes to reflect that the interpretation of the word ‘significant’ is not unanimous on the Board. Dr. Porter stated that the resolution will be reviewed by the appropriate staff in the Attorney General’s office to see that it is educationally and legally supportable. Ayes: Brennan, Deeb, Kelly, Miller, Morton, Novak, O’Neil, Riethmiller. The motion carried.” About this same time the Board also adopted a policy that it would not transfer property from districts involved in litigation. Dr. Porter recalls the policy as being informally adopted in 1973. Board Member Kelly, however, claims this was an unwritten policy of the Board as early as 1970. This policy is now included within the Board’s Official “By-Laws and Procedural Policies.” The court finds that the Eaman transfer violated the Joint Policy Statement issued by the State Board and the Civil Rights Commission and was also inconsistent with the unwritten (and later formalized) policies of the Board not to transfer property from districts under litigation and not to transfer property where there is evidence the transfer will significantly militate against integration. Also, despite a Board policy that no extraneous material be considered by the Board, outside of the Hearing Officers’ Report and the transcript of the hearing, there was substantial ex parte contact between members of the Board and supporters of the transfer, most notably from former State Representative Mattheeussen. The Board, on a motion by Dr. Oppewall, at one point tabled consideration of the Ea-man transfer at the request of the Eaman petitioners for more time to prepare their appeal. Although Dr. Oppewall found Mr. Mattheeussen’s reasons (given ex parte) in support of the transfer persuasive, a reading of the Hearing Officers’ summaries of the hearings or a reading of the transcript of the hearings (both of which Dr. Oppewall claims to have read) would indicate that the primary motivation of the Eaman petitioners was a desire to escape the inereasingly-Black Benton Harbor public schools. Dr. Oppewall, and presumably the other SBE members, in voting to approve the transfer, were acting upon information not a part of the record before them and information that was in substantial conflict with that of record. Peter Oppewall and the majority board members substantially adopted Mattheeussen’s oral presentation and disregarded the statutory procedure for appeals and all of the testimony, documents and exhibits of two Hearing Officers, and Superintendent Porter’s recommendations as well. As was stated in the Phase I opinion in this matter: “A presumption of segregative intent arises when plaintiffs establish that the natural, probable and foreseeable result of public officials’ action or inaction was an increase or perpetuation of public school segregation. The presumption becomes proof unless defendants affirmatively establish that their action or inaction was a consistent and resolute application of racially neutral policies. Oliver, supra, 508 F.2d at 182; Keyes [413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548], supra; Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973) (en banc), rev’d on other grounds, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974); Davis v. School District of Pontiac, 443 F.2d 573 (6th Cir. 1971), aff’g. 309 F.Supp. 734 (E.D.Mich.1970).” Berry v. School District of the City of Benton Harbor, 442 F.Supp. 1280, 1294-5 (W.D.Mich.1977). As to the Eaman transfer, plaintiffs established a presumption of de jure segregative intent. They established to the satisfaction of the court that the Eaman transfer by the State Board of Education had the natural, probable, foreseeable, and actual result of increasing de jure segregation of the Benton Harbor public schools. Defendant SBE failed to establish that the Eaman transfer was a consistent and resolute application of racially neutral policies. In light of the wealth of information before the SBE, the warnings that the transfer would increase segregation in Benton Harbor, and the lack of valid educational reasons for the transfer, this court cannot conclude otherwise than that the action was taken with the conscious intent of creating a refuge for White students seeking to escape a predominantly Black district. The segregative effect of the Eaman transfer upon the Benton Harbor district went far beyond the loss of the 150 White students from the BHASD to the Coloma Community School District. Before the SBE next acted on a petition for transfer of property out of the BHASD, five other transfer petitions totaling some 1500 students and some 24.5% of the district’s total SEV had been filed. As noted above, these areas which were seeking transfer were all predominantly White, outlying areas of the district. The transfer and subsequent petitions created a period of chaos for the Benton Harbor school administration. They were unable to plan for the future, not knowing which areas of the district would remain within the district. Long-range plans to improve the curriculum and the building plant, developed by the professional educational planners of Englehardt and Englehardt, Inc., were shelved. A scheduled bond election for major capital improvements was cancelled. The District was forced to continue with inadequate, overcrowded secondary schools which contributed to the increasing tensions within the district and exacerbated White flight from the district. This was in a district where all witnesses agreed that consolidation without a successful building program would be disastrous. Defendant SBE’s expert witness, Dr. Láveme Boss, testified that a loss to a school district of an area similar to Eaman, that is 1.4% of its total students and total SEV, would be “insignificant” in terms of its impact upon education and educational administration in the district. Dr. Boss, the former Superintendent of the 3,000 student Northview School District, testified that when Northview lost 30% of its district to the expanding Grand Rapids School District, they were able to “work it out” and the loss did not damage the remaining district. The situation in Northview, however, was radically different from the situation faced by the Benton Harbor administration. Northview, a 98%-plus White district (as were the three other districts Dr. Boss has been superintendent of), was in a rapidly growing area outside Grand Rapids. Benton Harbor was a majority-Black district facing declining population and deteriorating property values. Northview was not crippled by the racial motives that infected the Benton Harbor transfers. Dr. Boss’s testimony that a transfer such as the Eaman transfer would have an “insignificant” impact upon education in the BHASD was firmly rebutted by plaintiffs’ expert witness, Dr. Robert Green. Dr. Green is an eminent educational psychologist and expert upon segregation and its impact on both Black and White children. Dr. Green testified that the transfer of a predominantly White area from a predominantly Black district to a predominantly White district would have both an educational and a psychological impact: “. . . The educational impact is very often clear in that services, resources, materials, consultants that are directed to districts, that minority pockets in those districts usually receive fewer resources, fewer services, and can be signaled out and targeted for inferior educational services. From an educational standpoint, that happens. From a psychological standpoint, it says to Black students that those who are in administrative leadership roles in that district would wish to continue the practice of separation, separating young people, using race as a criteria for that separation. That has a negative impact on Black students in that they begin to view themselves as being unworthy; and it allows White students very often to develop. a very unrealistic perception of their own self worth.” Where that transfer receives the approval of the highest educational and political bodies in the State, it communicates to all involved that “separation by race in the context of public education is acceptable and should be facilitated. As Dr. Green further testified: “[I]f you moved children for reasons over matters that the children cannot control, and you have exhausted all the options, and they’re moved for a definable educational benefit, that’s acceptable. But you could move two children for racial reasons or for reasons that are identified as being for racial reasons, . . . once that is known and given visibility, that would have an impact as great as moving 50 percent of the kids.” Although the percentage increase in racial concentration as a result of a transfer may be negligible, if the transfer is done for racial reasons it becomes a strong symbolic act. Such a broad and deleterious impact as a result of a transfer such as that approved by the SBE with regard to the Eaman area can hardly be termed “insignificant.” With all due respect for Dr. Boss’s expertise, the court finds the approval of the Eaman transfer petition by the SBE was a devastating blow to the Benton Harbor public schools, a blow from which they have yet to recover. Finally, the transfer destroyed morale within the district. Residents no longer saw the Benton Harbor Area School District as a consolidated district. The goal of working towards a successful, unified district was forgotten as nearly one-quarter of the district scrambled to get out. Rather than planning for the future and attempting to resolve the substantial problems of the Benton Harbor district, the outlying areas were given the hope that they could “cut and run” for the safe harbors of St. Joseph, Watervliet, Coloma, and Eau Claire. The Supreme Court’s language in Emporia, supra, is appropriate here: “[A] [district] court supervising the process of desegregation [does not] exercise its remedial discretion responsibly where it approves a plan that, in the hope of providing better ‘quality education’ to some children, has a substantial adverse effect upon the quality of education available to others.” Wright v. Council of City of Emporia, supra, 407 U.S. at 463, 92 S.Ct. at 2204. 2. The Sodus II Transfer. After approving the Eaman transfer, the SBE denied five successive petitions for transfers of substantial portions of property out of the Benton Harbor district. The SBE broke this pattern, however, in 1974 when it granted what has become known in these proceedings as the Sodus II transfer. The BHASD Board and the Berrien Intermediate Board also changed positions when the Sodus II petition came before them. After a hotly contested school board election, new members were elected and the board then voted “not to oppose” the petition. The Intermediate Board, after denying all other major property transfer petitions out of Benton Harbor, granted the Sodus II petition. This decision was then appealed to the SBE. Implementation of the Sodus II transfer was enjoined by this court, the injunction being affirmed by a panel of the Court of Appeals for the Sixth Circuit. Finally, on January 7, 1976, the SBE vacated and reversed its previous order transferring Sodus II. The actions of the BCISD in approving the petitions will be discussed later. The events leading up to the change of position on the part of the BHASD Board were extensively examined in this court’s Phase I opinion. To summarize briefly, the composition of the majority on the Benton Harbor Board had been changed by the election of new members who looked favorably upon attempts by property owners to transfer out of the district. The BHASD resolution not to oppose the Sodus II transfer stated it was “not inconsistent with a general plan for redistricting” the BHASD and was approved coincidentally with the presentation of two plans for redistricting the BHASD. One of those two plans was the “Gargano Plan,” a blatant attempt to create two separate and unequal school districts out of Benton Harbor: one rich and White; the other, poor and Black. The Sodus II petition was filed with the BCISD on March 5, 1973. The area covered by the petition was a peninsula in the extreme Southeast portion of the district, composed of the formerly independent Chadwick, Sodus, and Mt. Pleasant school districts. The area, in addition to comprising some 2.5% of the BHASD’s total SEV, contained some 143 BHASD students, of whom 19 were Black. The BCISD granted the petition on May 2, 1973. An appeal from this decision was filed with the SBE by llene Fox, a BHASD Board member from 1969-1977 and a resident of the petitioning area. As in the Eaman transfer, the SBE Hearing Officer, Raymond Godmer, recommended that the transfer be denied on the basis that it would adversely affect Benton Harbor racially and financially, would set a precedent for other attempts to fragment the district, and because “no sound educational reasons for the transfer were presented.” The SBE, however, again overrode the recommendation of its Hearing Officer and Superintendent Porter and on July 3, 1974, affirmed the decision of the BCISD to grant the transfer. By 1974, the SBE had, at Dr. Porter’s urging, initiated a policy that, where the Board overrode the Superintendent’s recommendation on a property transfer matter, reasons for the SBE decision would be placed in the record. The reasons specified by the Board in approving the Sodus II transfer were: “a. Dual sessions are on [sic.] educational hardship and disruptive to the ordinary educational process. The sending district