Full opinion text
TABLE OF CONTENTS I. CASE HISTORY AND PROCEDURAL POSTURE. II. FINDINGS OF FACT. A. Stipulation of Facts. B. The Board of Education. C. State of Missouri and the State Board of Education. D. Pre-Brown Conditions. 1. Dual school system. 2. Discriminatory laws. 3. Demographics. 4. Board activities. E. 1954-56 Desegregation Plan. F. Resegregative Factors. 1. Socio-demographic changes in St. Louis. 2. Housing segregation. 3. Title I. G. Resulting De Facto Resegregation. 1. Transitions in the schools. 2. Changing pattern in school enrollment (excluding Harris Teacher's College). 3. Racial imbalance in the St. Louis public schools. 4. Schools referred to as vestiges. H. Actions of the Board. 1. Adoption of the neighborhood school system. 2. Student transfers. a. Transfers concomitant to desegregation. b. Permissive transfers. c. Special transfers. 3. Boundaries and feeder patterns. 4. Redistricting. 5. Transportation. a. Intact busing. b. Busing 1964-78. 6. School construction. 7. School closings. 8. Schools with city-wide enrollment, a. The Technical high schools. 9. Staff. a. Faculty. b. Non-certificated personnel. c. Administrators. d. Pupil-teacher ratio. 10. Curriculum and facilities. a. Curriculum. b. Facilities. c. Retentions and withdrawals. 11. Magnet schools. a. Admissions to the magnet schools. III. CONCLUSIONS OF LAW. A. Governing Constitutional Principles. B. Effectiveness of the 1954-56 Desegregation Plan. C. Burden of Proof. D. Racial Imbalance in the St. Louis Schools. IV. POSITIONS AND PLANS OF THE PARTIES. V. APPENDIX. A. Racial Composition of the Enrollment in the St. Louis Elementary and Secondary Schools by District. 1. Year 1972-73. 2. Year 1975-76. 3. Year 1978-79. B. Consent Judgment and Decree, December 24, 1975. MEMORANDUM MEREDITH, Chief Judge. This matter was tried to the Court. The Court makes the following findings of fact and conclusions of law: I. CASE HISTORY AND PROCEDURAL POSTURE. This is a school desegregation case involving the public schools of the City of St. Louis, Missouri. On February 18, 1972, plaintiffs, who are representatives of the Concerned Parents of North St. Louis, filed their initial complaint. Plaintiffs represent school age children and their respective parents and next friends residing in the metropolitan school district of the City of St. Louis. Plaintiffs (hereinafter Liddell, et al.), each of whom is black, brought this action as a class action on behalf of themselves and all other school age children and their parents in that area. Plaintiffs named as defendants the Board of Education of the City of St. Louis, State of Missouri, and its members (hereinafter Board), in their official capacities, as well as the then Acting Superintendent of Schools and the District Superintendents of the Board of Education of the City of St. Louis, all in their official capacities. In their initial complaint, Liddell, et al., alleged jurisdiction under 28 U.S.C. §§ 1343(3) and 1343(4), 28 U.S.C. § 2201, 42 U.S.C. §§ 1983, 1988, and 2000d, and the Fourteenth Amendment to the Constitution of the United States. Liddell, et al., alleged that the defendants, by their methods of maintaining and operating the school system, have perpetuated racial segregation and discrimination in the St. Louis City School system. Lid-dell, et al., further alleged that the defendants have so acted as to incorporate segregated residential patterns into the schools, to allocate educational resources in a discriminatory manner, and to perpetuate a dual biracial school system, thus failing in their affirmative duty to establish and maintain unitary public schools. Liddell, et al., prayed that defendants be enjoined to take all steps reasonably necessary to establish a nonsegregated, nondiscriminatory school system, and be required to submit a plan for the allocation of educational resources, geographical boundaries and transportation routes, as well as staff and pupil assignments which will satisfy the Fourteenth Amendment requirements. In addition, Liddell, et al., asked for costs, attorneys’ fees, and other relief. Defendants answered this complaint, denying the material allegations, on April 19, 1972. On October 3, 1973, after discovery proceedings by the parties, the Court allowed this action to be maintained as a class action pursuant to Rules 23(a) and. (b)(2) of the Federal Rules of Civil Procedure, and notice of the pendency of the class action was duly published. The Court also, by public notice, invited other interested parties to intervene on or before December 1, 1973. On October 30, 1973, defendants filed a motion to join as additional parties defendant the Governor, the Attorney General, the Commissioner of Education of the State of Missouri, the State Board of Education of Missouri, the St. Louis County Superintendent of Education, and the twenty school districts in St. Louis County which constitute the first two tiers of school districts adjoining the defendant school district of the City of St. Louis. The motion was denied on December 1, 1973. On February 28, 1974, the Court requested that the parties file a written Stipulation of Facts. This was done on June 7, 1974. Exhibits filed with the stipulation have been supplemented to provide statistical material for the school years up to 1975-76. On June 21, 1974, after proper publishing of notice to prospective members of the class and other interested parties, the Court, noting that no party had requested intervention, ordered that the cause might continue as a class action. On December 24, 1975, the parties to this action entered into a consent judgment and decree which the Court approved. (The consent decree is set out in full in Appendix B.) The consent decree was based on a denial by the Board of Education that plaintiffs’ charges were true, and a recognition that there was racial imbalance in the school system despite the Board’s efforts to integrate the system. The Board agreed to take further affirmative action in order to overcome the effect of residential patterns and to alleviate racial imbalance in the City schools. The Board agreed to progressively increase the percentage of minority teachers in every school, so that, in 1976-77, 10%, in 1977-78, 20%, and in 1978-79, 30% of the teachers at each school would be of the race that was in the minority at that particular school. This was to be done by voluntary transfers if possible, but otherwise by mandatory assignment despite any contracts, tenure, or seniority agreements to the contrary. This goal has been substantially met even though all parties did not agree to the continuation of the program. In addition, defendants agreed to strive to increase integration by their manner of providing classroom space, to study realignments of feeder schools, to consider elementary magnet schools and special subject high schools, both with city-wide enrollments, and to attempt to improve the curriculum, all in an effort to relieve the residence-based racial imbalance in the City schools. On December 24, 1975, the Court ordered publication of the consent decree and notice was ordered to all interested parties that they might object to the consent judgment by filing a statement before Friday, January 16, 1976. On January 16, 1976, objections to the consent decree were filed by the Missouri State Teachers Association, St. Louis District; the St. Louis Teachers Union, Local 420, American Federation of Teachers; and the St. Louis Teachers Association. A group of black students and their parents and next friends, together with the National Association for the Advancement of Colored People, Caldwell, et al. (hereinafter NAACP), also filed their objections and applied to intervene as representatives of the class. Both plaintiffs and defendants objected to the intervention of the NAACP and moved to dismiss the objections and motion to intervene. Liddell, et al., further argued that because of their intimate knowledge of the particulars of the St. Louis City Schools situation, they were better able to structure solutions on a local level than a bureaucratic national organization like the NAACP would be. After a hearing on January 23, 1976, all objections and applications for intervention were denied by this Court. Only the NAACP appealed from that order. On December 13, 1976, the U. S. Court of Appeals for the Eighth Circuit reversed the order of this Court and allowed the appellants’ motion to intervene. Liddell v. Caldwell, 546 F.2d 768 (8th Cir. 1976). The only issue before the Eighth Circuit was the right of the NAACP to intervene. As the appeal was interlocutory, the Court of Appeals did not consider the merits of the consent decree. On January 28, 1977, the appeals court denied the defendants’ motion for a stay of mandate pending petition for certiorari, and said that the consent decree, although interlocutory as to remedy, still obliged the parties to go forward with implementation of a desegregation plan and to make “every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation.” Davis v. Board of School Comm’rs. of Mobile County, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971). On February 25, 1977, this Court granted leave to Caldwell, et al., or the NAACP, to intervene and made them parties to this cause, “adopting the original complaint as filed February 18, 1972, and the stipulation of fact, filed by the original parties herein on June 7, 1974, in the same manner and with like effect as if named as original parties to this cause.” By submission of reports on February 28 and March 10, 1977, the defendants filed their plan for desegregation, pursuant to the requirements of the consent decree. The measures proposed in these reports include (i) the establishment of fully integrated junior high schools, (ii) expansion of the magnet school program, including the establishment of a new magnet high school, (iii) expansion of the integrated enrollment in two alternative high schools, Metro and O’Fallon Technical, (iv) emphasis on permissive transfers to improve desegregation, (v) adjustment in transportation to improve desegregation, (vi) in-service training and other collateral services, (vii) an educational park, and (viii) a metropolitan remedy. A financial report, filed on March 15, 1977, set forth the estimated costs for the programs contemplated, and the projected cost allocation between the Board and the Department of Health, Education and Welfare (HEW). On March 28, 1977, the United States Department of Justice was allowed to intervene as amicus curiae, having declined to intervene as a party. Subsequently two groups of parents and pupils representing white students in the St. Louis public schools, identified as the Involved Citizens Committee (and also as Puleo, et al.) and the Concerned Parents for Neighborhood Schools (Adams, et al.), and the City of St. Louis were allowed to appear as amici curiae. In May, 1977, Liddell, et al., the NAACP, and the United States Department of Justice submitted their separate alternative plans for desegregation under the consent decree. The NAACP also moved to enforce its own desegregation plan by an injunction. In its order of July 13, 1977, the Court noted that the only part of the Board’s plan to which all parties agreed was the magnet school program. Therefore the defendants proceeded with that program. As it would be inconsistent with due process to direct that the contended portions of the plan be implemented immediately, without a hearing, the remainder of the plan could not be implemented in 1977. The Court ordered a July 25, 1977, hearing on the proposed plans. Therefore, the motions of intervening plaintiffs NAACP and of amicus curiae United States Department of Justice, requiring immediate implementation of their own plans, were denied, and the subsequent reversal of position and separate motions by intervening plaintiffs NAACP and the United States Department of Justice requesting immediate implementation of the Board’s plan were denied so that an orderly hearing might be held. The defendants’ motion to dismiss the alternate plans of Liddell, et al., the NAACP, and the United States was denied. At that time, in the light of the recent Supreme Court cases, Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977); Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977), and School District of Omaha v. U. S., 433 U.S. 667, 97 S.Ct. 2905, 53 L.Ed.2d 1039 (1977), it became necessary for this Court to determine whether, in fact, there had been any constitutional violation by the defendants. There was no determination of a constitutional violation made in the Stipulation of Facts or in the consent decree. A trial to this Court was to determine the following: whether there has been any constitutional violation on the part of defendants, and, if so, what is its nature and extent. If a constitutional violation were found, the Court would consider implementing remedies, matching the extent and scope of any remedies found necessary to the extent and scope of any violation which may be found. By order of July 14, 1977, the trial date was postponed to October 17, 1977, in order to permit the State defendants to prepare for trial. Before commencement of the trial, the United States Department of Justice (hereinafter Department), Puleo, et al., or the Involved Citizens Committee, Adams, et al., or the Concerned Parents for Neighborhood Schools, and the City of St. Louis were allowed to intervene as parties plaintiff. The State of Missouri, the Missouri State Board of Education, and the State Commissioner of Education were made parties defendant. This case was tried to the Court in thirteen trial weeks at five different settings between October 17, 1977, and May 26, 1978. During the 13 weeks of trial, 39 witnesses testified in person and one by deposition. About 1,200 exhibits were received in evidence. The trial proceedings covered 7,115 pages of transcript. The trial addressed both issues of liability and remedy. II. FINDINGS OF FACT. A. Stipulation of Facts. The Stipulation of Facts was filed by the original parties, Liddell, et al., and the Board, on June 7, 1974, pursuant to a February 28, 1974, request by the Court. This request came after the Court had, by public notice, invited any interested parties to intervene in this class action. The Stipulation of Facts consists of 50 pages of description and facts concerning the St. Louis public schools to which the original parties agreed and are bound. Subsequent to the filing of the Stipulation of Facts, other parties have intervened as parties plaintiff. When Caldwell, et al., (NAACP), sought to intervene in the class action, they did not attempt to “assert a right to relitigate or undo the factual stipulations of the parties.” Liddell v. Caldwell, 546 F.2d 768, 770 (8th Cir. 1976). The Eighth Circuit described the Stipulation of Facts in the following manner: “the stipulation appears to fairly set forth the basic history and statistics of the St. Louis school system.” Id. at 770. The February 25, 1977, order of this Court granting the application for intervention of Caldwell, et al., (NAACP), specifically provided that the intervenors adopt the Stipulation of Facts “in the same manner and with like effect as if named as original parties.” This Court also held in the order of July 13, 1977, that all parties are bound by the Stipulation of Facts. B. The Board of Education. The original defendants are the Board of Education of the City of St. Louis, which is a metropolitan school district, a body corporate, created and governed by the statutes of the State (hereinafter referred to as the Board), and the following persons who are sued in their respective official capacities at the time the suit was filed: the twelve members of the Board, the Acting Superintendent of Schools, and the five District Superintendents of the districts into which the school system of the City is administratively divided. The Board has the supervision and government of the public schools and public school property within said district; and in its name the Board may sue and be sued; purchase, receive, hold and sell property, and do all things necessary to accomplish the purposes for which the school district is organized. Under the laws of Missouri, all titles to property granted to the City of St. Louis by the United States or the State of Missouri for school purposes, and the title to all school lands and other property of every kind within the City of St. Louis are vested in the Board. The laws of Missouri require the Board to organize annually by electing a president, vice-president and secretary from its members, and to appoint a superintendent of schools; and that should the superintendent of schools be unable to perform his duties as required by law, or if the office of superintendent becomes vacant, the Board shall appoint an acting superintendent to serve during the period of disability of the superintendent or the vacancy in the said office. The laws of Missouri vest the Board with general and supervising control, government and management of the public schools and public school property in said City of St. Louis, and generally with all powers in the administration of the public school system in said City, inter alia, the following: (a) to appoint the officers, agents and employees it deems necessary and proper and fix their compensation; (b) to make, amend and repeal rules and bylaws for the government, regulation and management of the public schools and school property in said City; (c) to examine, qualify and employ teachers; (d) to purchase and hold all property, real and personal, deemed by it necessary for the purpose of public education; (e) to build and construct improvements for such purposes, and sell the same; (f) to levy taxes authorized by law for school purposes; and (g) to provide for the gratuitous transportation of pupils to and from schools in cases where by reason of special circumstances pupils are required to attend schools at unusual distances from their residences. Furthermore, as provided by statute, the Board is subject to rules promulgated by the State Board of Education on a number of subjects, including accreditation, classification and requirements for the schools of each class, and is supervised by the State Board in some respects. Pursuant to the laws of the State of Missouri, the Board appointed a Superintendent of Schools, and during his leave of absence in the school year 1971-72, an Acting Superintendent of Schools was appointed for that year. These officials have statutory authority (subject to the approval of the Board of Education of the City of St. Louis, or under regulations made by the State Board of Education), inter alia, as follows: (a) to appoint a treasurer; (b) to appoint a commissioner of school buildings; (c) to appoint associate and assistant superintendents; (d) to prepare and administer the annual budget of the school system; (e) to have general supervision of the school system, including its various departments and physical properties, course of instruction, discipline and conduct of schools, textbooks and studies; and (f) to have general supervision of all school buildings, apparatus, equipment and school grounds and of their construction, installation, operation, repair, care and maintenance. The boundaries of the School District of the City which is administered by the Board are coterminous with those of the City of St. Louis itself. These boundaries, which comprise 61.37 square miles, have remained the same since their establishment by the legislature in 1876. Compare § 5271, R.S. Mo.1879 with § 46.145, R.S.Mo.1969. The City of St. Louis is also a county but separate and distinct from St. Louis County which adjoins the City of St. Louis. C. State of Missouri and the State Board of Education. Prior to 1954, the Missouri Constitution provided separate schools for black and white pupils. Art. IX, § 1(a), Mo.Constitution, 1945. Several state statutes served to implement that provision by providing for the distribution of separate school moneys (§ 161.020, R.S.Mo.), separate enumerations and the transfer of black pupils between districts (§§ 163.130, 164.030, 165.117, 165.-297, R.S.Mo.). The legislature acted promptly in response to Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). State funding for separate black and white schools was repealed at the next regular session of the General Assembly. Laws of 1955 at 520. The remaining statutes were repealed in 1957. Laws of 1957 at 452. In 1961, laws were enacted prohibiting discrimination in housing (Chapter 213, R.S. Mo.), employment (Chapter 296, R.S.Mo.), and public accommodations (Chapter 314, R.S.Mo.). The latter chapter by its terms is applicable to schools. Enforcement of these laws was vested in the Missouri Commission on Human Rights. No other laws were enacted, nor were any laws amended which expressly or by implication required or permitted school districts to make distinctions between black and white pupils, or which encouraged districts to resist the removal of vestiges of the dual system within their districts. The Missouri State Board of Education has constitutional and statutory authority to “supervise instruction” in the public schools of Missouri (Art. IX, § 2(a), Mo.Constitution, 1945), and to otherwise effectuate the educational policies of the State. § 161.092, R.S.Mo.1969 (as amended, Cum. Supp.1975). The State Board distributes state aid on an annual basis to local school districts pursuant to a formula taking into account, inter alia, numbers of pupils served and local tax effort. § 163.031, R.S.Mo.1969 (as amended, Supp.1977). State aid may be withheld only if a school district fails to: (a) operate its schools for a minimum number of days, (b) maintain adequate financial records, (c) levy a minimum property tax, or (d) compute average daily attendance as prescribed by law. § 163.021, R.S.Mo.1969 (as amended, Cum.Supp.1975). The State Board has statutory power to provide state aid in the transportation of students and to approve all school bus routes traveled by school buses. § 163.161, R.S.Mo.1969 (as amended, Supp.1977). St. Louis, as a “metropolitan district,” is empowered to transport pupils to and from schools “where by reason of special circumstances pupils are required to attend schools at unusual distances from their residences.” § 162.621(8), R.S.Mo.1969. All other districts are subject to statutory mileage criteria. § 167.231, R.S.Mo.1969 (as amended, Supp.1977). The determination of pupil assignments and transfers, the drawing of attendance zones and feeder patterns, the selection of sites for schools and additions, and the assignment of faculty are within the discretion of local school officials, and are not shown to be routinely reported to the State. The State Board is responsible for approving applications from the St. Louis Board for aid under Title I of the Elementary and Secondary Education Act of 1965 and such aid is also subject to final approval by the Department of Health, Education and Welfare (HEW). The evidence shows that the State of Missouri effectively removed all barriers at the state level to the desegregation of the schools. There is no showing that any actions of the State, the State Board of Education, or the Commissioner of Education of the State of Missouri had a segregative effect or in any way hindered desegregation. D. Pre-Brown Conditions. 1. Dual school system. Prior to the decision in Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the public schools of the State of Missouri were segregated pursuant to state constitutional and statutory law. As of that time the public schools maintained and operated by the Board had a total enrollment of 90,327 pupils, comprising the following: Over 30,000 children in St. Louis attended private and parochial schools, a relatively low percentage of that number being black. Prior to 1954 the Board operated seven (7) high schools limited to white students. These schools were Beaumont, Central, Cleveland, McKinley, Roosevelt, Soldán, and Southwest high schools. There were two (2) high schools limited to black students. These schools were Sumner and Vashon. There were also two vocational or technical schools, one black and one white. Under the dual school system white students were assigned to schools on the basis of proximity to their homes. Black children did not have neighborhood schools, but were instead bused to the black schools at the core of the City. Separate, overlapping attendance zone lines were maintained for black schools and white schools. This resulted in some extremely large attendance zones for black schools. 2. Discriminatory laws. Segregation was eliminated in the following public facilities and community services in the indicated years. The Catholic schools were desegregated in 1947. Nondiscrimination was made the law in City employment in April, 1946. White teachers were employed in black segregated schools prior to 1955. The St. Louis area ball parks were desegregated and St. Louis University was integrated in 1944. Washington University was integrated in 1947. The St. Louis theaters were desegregated in 1951. The St. Louis recreational facilities were desegregated in 1950, and the public transit system was desegregated in 1953. In 1918, an attempt was made to impose segregated housing on the City’s population. Over the opposition of City officials, a segregated housing ordinance was passed by initiative petition. This ordinance was immediately struck down by the courts and was never enforced. Nevertheless, as of 1954, segregation in housing existed due to private discriminatory practices and actions and policies of the Federal Housing Administration. 3. Demographics. A quick review of St. Louis demographics prior to 1954 reveals a tendency of certain groups of common race, national origin, religion, and economic means to settle in certain areas of the City. This tendency has resulted in some homogeneous residential patterns despite the heterogenity of the population of St. Louis as a whole. Although grouping in homogeneous residential patterns was evident prior to 1954, all groups remained highly mobile. Pockets of blacks were residing throughout St. Louis, although much of the black population lived in the area immediately north of the downtown area. The tremendous mobility of the St. Louis population was to be shown in demographic changes after 1954. The population of St. Louis grew until 1950, when the population was 856,796. The racial composition in St. Louis was then 82.1% white and 17.9% black. In 1950, the white population in St. Louis had declined by 4,253 from 707,283 whites in 1940. White attendance in the St. Louis public schools had also declined as of 1950. 4. Board activities. The St. Louis Board of Education anticipated the outcome of the Brown decision and in 1953 began to prepare for desegregation. By the time the Brown decision has handed down a number of steps had been taken by the Board, including: interracial activities for principals, teachers and students; introduction of teaching materials portraying contributions of different ethnic groups to American life; comprehensive programs to improve the teaching of human relations in the schools; working with church groups, civil rights groups and other community organizations to prepare the community for desegregation and to obtain community support for desegregation; and arrangements to familiarize Board members, school officials and community leaders with the experience of a desegregated public school system. The pre-Brown activities of the Board also included the preparation of plans for the desegregation of the school system. The administrative staff of the Board began preparing a desegregation plan for implementation as soon as the Supreme Court acted. This anticipatory work by the Board was praised at the time of Brown in that it made possible an early completion of the integration program for St. Louis. Irving Dilliard, chief editorial writer for the St. Louis Post-Dispatch, made the following comments on the Board’s efforts in his editorial of May 19, 1954: “Ready acceptance in St. Louis is indicated by the reception of the [Brown I] decision here. Much to its credit, the Board of Education has anticipated the result and has in hand plans for developing a single school system. It can be hoped that this program is already far enough along on paper that it can be completely worked out and put into effect next September. Three months is a substantial period. Accommodation of the ruling through the summer vacation season would be a splendid achievement for the second largest city in the country (after Baltimore) with a segregated school system.” E. 1954-56 Desegregation Plan. On June 30, 1954, the Attorney General of the State of Missouri ruled that the provisions of the Constitution and laws of Missouri requiring segregation were superseded by Brown and were unenforceable. By that time, to wit, on June 22, 1954, the Board had already adopted a three step program for desegregation of the St. Louis public schools. The first step provided for desegregation at the junior college, teachers college level and in those classes which provided services on.a city-wide basis. This first step was completed by September 1954. The second step provided for desegregation of all high schools (except for the technical high schools) and also for desegregation of the adult education program. The third step provided for desegregation of the two existing technical high schools and all regular elementary schools. The plan was implemented over a two year period, from 1954 to 1956. The three point program eliminated race as a required criterion in determining eligibility- to enroll in any public school of the system. After the adoption of this program, students were assigned to the schools in accordance with the following general principles to govern the integration process for students, which were adopted by the Board at the said meeting of June 22,1954: a. The areas to be served by each elementary and each secondary school will be established by new boundaries. In drawing these boundaries, the purpose will be to provide the best use of the facilities of a given school by the students living in the area of that school. b. These boundaries will provide each school with a district which it will serve. Students must attend school -in the district in which they live, with the following exceptions: (1) The proper school authorities may transfer students from one district to another to relieve overcrowding. (2) Students already enrolled in a school, but not resident in its new district may, but are not required, to continue at that school until they graduate. This privilege will be granted, however, only if the particular school is not overcrowded. For the accomplishment of these objectives, IBM cards were prepared for city blocks showing the number of students without any consideration of race or color. All reference to race or color was eliminated in the records of the St. Louis Public School System from 1954 until 1962, when the first racial count was taken pursuant to the recommendation of the U. S. Commission on Civil Rights. The new attendance boundaries for elementary schools were drawn by a high level black administrator, James Armstrong Scott, who used the following procedure: a. All principals of all elementary schools were required to send the grades and residence addresses of each of their students to a central office, where the information was reduced to IBM cards, which were then sorted by the city block on which each of the students resided. b. Mr. Scott was then supplied with a separate sheet of paper for each city block, on which sheet was printed the number of public school students residing on that block and the grades which they attended. There was no other information on the sheet. The names, ages, race, and home addresses of the children were all deleted. c. Attendance boundaries were then drawn for each school, using as the criteria only proximity to the school building and building school capacity, giving consideration for natural barriers such as major thoroughfares and distance. Mr. Scott was instructed “to do the whole job” and to rely on the following factors alone: “To draw the lines objectively by the use of IBM cards and to decide each district on the — in terms of building capacity, that is if it’s a five hundred school which would hold five hundred children. And on distance, so that the children would not have to go too far. And on the basis of safety, so that they wouldn’t have to cross dangerous spots. And in the case of some, on the basis of transportation because even with the best districting, some children did have to ride to school.” (Scott deposition, pp. 8-9.) Subsequent to the establishment of the new boundaries, there was a series of meetings and communications with parents, and the new boundaries were publicized in the newspapers in advance of their implementation. The new elementary boundaries were approved by the Board in its meeting of March 8, 1955. One of the effects of the redistricting in 1954 was to bring about equalization of students in attendance at the various schools. As Scott testified: “In some schools, especially toward the edge of the black area, there were schools of white children that had some empty rooms and they were redistricted to take down the numbers from the black schools. For years the black schools, the teachers had about forty-five children to a room; whereas, in most of the white schools there were about thirty-five children. But when we redistricted in 1954-55, we tried to have every school in the city, black or white, average the same number of pupils per room.” (Scott deposition, pp. 49-50.) The high school boundaries were redrawn by Mr. Sellman, using the same method as Mr. Scott used. The new boundaries were publicized and interested groups and organizations, including the NAACP, the Urban League, PTA and other civic and religious groups were invited to inspect and comment on them. No complaints were received and the boundaries were approved by the Board on December 14, 1954. The plan formulated by the Board, described above, succeeded in desegregating the previously dual school system. The level of desegregation achieved through the plan was substantial and system-wide. Almost 60% of the black high school students chose to attend the previously all white school in their new district attendance area, with the result that six of the seven previously all white high schools had a racially mixed enrollment. At the elementary school level about two-thirds of the total enrollment were attending interracial schools. The Board’s desegregation plan encompassed desegregation of the faculty, discussed infra, the administration, and the Board itself. Since April 18,1955, there has been no time when the 12-member Board did not include at least one black member, two since the school year 1960-61, three since the school year 1962-63, and four since the school year 1970. There have been four black presidents elected by their colleagues on the Board. Special committees were appointed by the Board to deal with desegregation policies and procedures. The first was a staff committee of three members, of which James A. Scott, a black assistant superintendent, was chairman from the establishment of the committee on November 14, 1961. The second was a continuing committee on integration, consisting of four members of the Board, which was created on September 10, 1963, and was first chaired by the Reverend John J. Hicks, one of the black Board members. The Board’s desegregation plan received widespread support in 1954 from civil rights supporters. Wylie Davis, in his study on St. Louis which was a Report to the Civil Rights Commission in 1962, praised the effectiveness of the Board’s plan: “The 1954-56 transitions, then, were solidly conceived and brilliantly carried off. They represented a signal breakthrough in human relations, and everywhere those who prize man’s dignity were properly impressed.” As a result of the Board’s 1954-56 desegregation plan, a unitary public school system was achieved in St. Louis. F. Resegregative Factors. After the 1954-56 desegregation plan was implemented, several forces, outlined below, which are beyond the Board’s control, impeded further integration and caused resegregation in the St. Louis public schools. 1. Socio-demographic changes in St. Louis. In its origin and for many decades thereafter the population of the City was predominantly white. The more recent decades, however, show a sizeable and consistent increase in the black population of the City, with a large loss of the white population and a significant loss of the total population. Since no issue is raised in this ease as to any race or ethnic group other than black, and since the aggregate of all such other minority groups is negligible in itself, they are combined with “whites.” The census data show the extent of this transition over the years since 1940: Year Total Population Black % Black 1940 816,048 108,765 13.3% 1950 . 856,796 153,766 17.9% 1960 750,026 214,377 28.6% 1970 622,236 254,191 40.9% 1977* 523,000 229,980 44.0% *The 1977 figure is an estimate. During the period from 1950 to 1970 the “net out-migration” of whites from the City amounted to over 400,000 while blacks showed an overall increase of over 100,000. The exodus of whites and affluent blacks from the City to St. Louis County was caused and accelerated by a variety of mutually reinforcing factors; combination of widespread automobile ownership and building of expressways; abundance of land in the County which could be developed with modern homes, contrasted with the nonavailability of such land in the City and the age of the City’s buildings which were found less desirable to satisfy the lifestyle of a post-war affluent society; and the pull of jobs in the County due to the very sizeable growth of employment opportunities provided by large manufacturers and businesses which became located in the County. This movement from the City to St. Louis County is reflected in the following statistics of the United States census with regard to the racial composition of the County’s population: Year Total Population White % Black 1940 274,230 261,840 4.5% 1950 406,349 389,336 4.1% 1960 703,532 683,652 2.7% 1970 951,353 902,002 4.8% The white exodus to the suburbs in the 1950’s and 1960’s was accompanied, and partially caused or accelerated by the movement of the blacks from the inner-city area to the central west end and later to the northwest areas of the City and into the County. Factors in this black migration from the inner-city were the economic upgrading of former poverty and low income level families, and the impact of razing slum areas in preparation for new housing developments such as the Mill Creek area (declared blighted in 1953), J. J. Cochran (1953), Capt. N. 0. Pruitt (1955), Wm. L. Igoe (1956), G. L. Vaughan (1957, 1963), J. M. Darst (1956), and A. M. Webbe Apartments (1961). The slum razing resulted in large-scale displacement of black residents of the inner-city, the majority of whom migrated to the west end. Intra-city movement and dislocation of blacks was also produced by the clearance required for the development of the highway system, including Highways 55, 44, 70, and 40. These displacements resulted in a major intra-city migration of blacks from the traditional inner-city to the central west end and to the northwest areas of the City and into the County. Prior to the 1960 census only 2% of the blacks in St. Louis lived west of Kingshighway. By April, 1963, over 25% of the black population lived west of Kingshighway. The west end area of St. Louis (Union to Hodiamont and Delmar to Page) went from about 60% black in 1962 to almost 100% black today. The black out-migration from the inner-city to the west end and northwest St. Louis has resulted in high population density in the receiving areas. In many instances the shifting of blight, as dwellings became unprofitable to the landlords and unlivable for the tenants, resulted in the downgrading and the eventual abandonment of neighborhoods, which caused a continuous search by blacks for a better neighborhood. Another result was the depopulation of previously heavily occupied areas. During the westward, northward and northwestward expansion of the black population of the City between 1950 and 1970, fifty percent of the blacks moved out of the older black areas. This is reflected in the following statistical analysis by the 26 health districts into which the City has been divided since before 1950: The number of health districts with 10% or more black population (of all ages) increased from 8 in 1950 to 15 in 1970 and during the same period the number of health districts with more than 40% black population increased from 4 to 12. The percentages of blacks computed from the total population of each health district in 1950, 1960, and 1970 were as follows: In 1970 the bulk of the black population (of all ages) of St. Louis was concentrated in a comparatively small area of the City which included about 60% of 156 elementary school districts. During the last few decades the proportion of black students enrolled in the City’s public schools has consistently been greater than the proportion of the City’s total black population. This is caused by a number of factors, including the fact that a higher proportion of black families than white is in the child-bearing age group; a higher proportion of white pupils than black attend private and parochial schools; and that elderly whites represent a large portion of the white population which remained in the City, whereas a large proportion of 'those who moved to the suburbs have been young and middle-age families with children. In 1950 the black population was 17.9% of the total population of the City, while in the same year, black elementary school enrollment accounted for 30.8% of the total enrollment. By 1970 the City’s black population was 40.9% of the total while black pupils made up 65.6% of the elementary school enrollment. In 1977 black enrollment in elementary schools was up to 72.7%, while the total black population of the City was estimated at 44%. The black student enrollment covers a wider geographical area than the overall black population. Together with the massive shift in the black- population to the central west end and the northwest areas of the City, there was a shift in the geographic concentration of school-age children. This relocation of school age children needs to be compared with the higher use of the public schools by black children than by white children and explains the tremendous overcrowding of public schools in the northwest portions of the City. From 1953 to date, the racial composition of the pupils attending the public schools of the City, excluding Harris Teacher’s College, has been as follows: 2. Housing segregation. The evidence of housing segregation in St. Louis is undisputed in the record. The Report of the U. S. Commission on Civil Rights, “Racial Isolation in the Public Schools,” 1967, gives St. Louis as an example of “severe” residential segregation. Prior to 1954 a pattern of racial housing segregation prevailed in the City and discriminatory restrictions against blacks were enforced by the courts and agencies of the State of Missouri. Dolan et al. v. Richardson et al., 181 S.W.2d 997 (Mo.App.St.L., 1944); Shelley v. Kraemer, 355 Mo. 814, 198 S.W.2d 679 (en Banc, 1946) rev’d, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1947); and Jones v. Alfred H. Mayer Co., 255 F.Supp. 115 (E.D.Mo.1966), aff’d, 379 F.2d 33 (8th Cir. 1967), rev’d, 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). After 1954 certain discriminatory practices against blacks continued to exist in the City, such as: (a) the failure of the City to enforce building codes and the strict adherence to use of brick in building, (b) red-lining of areas by insurance companies and lenders, (c) segregated policy of the Federal Housing Administration (FHA), and (d) newspaper listing of separate for “colored” ads. The fact that government policies and action have been a major force in developing and maintaining housing discrimination against blacks is undisputed in the record. The Department of Housing and Urban Development (HUD) is and for many years has been guilty of intentional housing segregation and has been so found by some federal courts. (Testimony of Dr. Gary Orfield, expert witness for the Department of Justice.) In a 1975 article entitled “White Flight Research: Its Importance, Perplexities and Possible Policy Implications,” Dr. Orfield states: “White Flight as a Triumph of National Housing Policy. The phenomenon described as ‘white flight’ by students of school desegregation is often seen, in another light, from another angle, as a true triumph of the basic tools of U. S. housing policy during the post-World War II period. Facilitating white suburbanization has been a basic goal, explicitly at first and implicitly to this day.” Dr. Morrison, an expert demographer, testified in a similar vein that federal policies on the interstate highway program, housing and FHA refusal of insurance on inner-city mortgages resulted in white movement to the suburbs and in housing segregation of blacks in the City. 3. Title I. Following the enactment and implementation of the Elementary and Secondary Education Act of 1965, 20 U.S.C. § 241a et seq. (hereinafter ESEA), a large number of schools were provided and have been operated by the Board with federal assistance. The purpose of this federal program is to “bring better education to millions of disadvantaged youth who need it most” “because of the strong correlation between educational under-achievement and poverty,” as stated in the Senate Report (U.S.Code Congressional and Administrative News, 89th Congress, First Session, 1965, pp. 1446, 1450 and 1449). Federal funds were made available to the Board under Title I of the ESEA for students living in the areas (46 in 1972) of the City which have been declared eligible upon meeting the specified standards of economic disadvantaged conditions of its resident children (federally determined percentage of Aid to Dependent Children (ADC) recipients). Federal Title I funds are disbursed each fiscal year by the Department of Health, Education and Welfare (hereinafter HEW) to the State of Missouri school authorities. This money is in turn allotted to the individual school district. The Title I programs for the St. Louis school district are developed by the Board and approved by State of Missouri officials and by HEW. Recipients of federal Title I funds are obliged to report to HEW officials respecting Title I projects and programs. The evidence shows that HEW officials have visited and viewed St. Louis Title I projects. Title I funds are earmarked for services, including, where necessary, the construction of school facilities, for “the special educational needs of educationally deprived children in school attendance areas having high concentrations of children from low-income families.” 20 U.S.C. § 241e(a)(l)(A). HEW regulations are designed to carry out the policy of Title I. These regulations require that school attendance areas be designated, that certain areas be designated as project areas under Title I, and that the Title I services/project be carried out in the locations best suited to serve the needs of the children. Most of the eligible areas under Title I criteria in St. Louis are and have been racially characterized by black predominance. Since the Title I program was started in 1965, the total number of elementary schools designated to receive Title I services ranged from 81 to 98 per school year, with an enrollment of between 86% and 97% black. These Title I schools constitute most of the schools in the system which have a major racial imbalance in their enrollment. In 1977-78, there were 82 elementary schools which received Title I services. 94.8% of the students enrolled in these Title I schools were black. Of the 90 virtually all black elementary schools in 1977-78, 73 were Title I schools. The evidence shows that in St. Louis, where virtually all of the areas having high concentrations of children from low-income families are black, Title I requirements focusing on poverty and educational needs rather than purely educational needs, which the Board urged should be the main criterion, have led or contributed to the identifiability of a large number of schools as black and in furthering the concentration of black students therein. The Board has operated Title I programs and built schools with Title I funds according to the following HEW regulation: “§ 116.17 Project covered by an application. (a) An application for a grant under Title I of the Act by a local education agency (other than a State agency directly responsible for providing free public education for handicapped children or for children in institutions for neglected or delinquent children) shall set forth a project for educationally deprived children residing in a project area composed of school attendance areas having high concentrations of children from low-income families . which project shall have been designed specifically to meet special educational needs of those educationally deprived children. The project itself shall be carried out at locations where the needs of the educationally deprived children can best be served. It may involve the participation of educationally deprived children residing outside the project area if such a participation will not dilute the effectiveness of the project with respect to children residing in the project area.” 45 C.F.R. § 116.17 (1972). This regulation, in essence, required the Board, which needed federal Title I funds to implement remedial programs for educationally deprived children, to spend the Title I funds on children from eligible attendance areas (virtually all black). Although the project need not be carried out in the Title I designated area, the project still had to serve Title I children (virtually all black). Thus, if Title I children were assigned to non-Title I schools, the Title I programs would still have to have been taught separately. This situation would have had the same impact as intact busing. These requirements had the effect of excluding most white children from the Title I programs. Although § 116.17(a) allows the participation of educationally deprived children not from Title I areas to participate in Title I projects, this allowance is curtailed by the requirement that such participation will not dilute the effectiveness of the Title I project for Title I children. In St. Louis this dilution prohibition effectively excluded non-Title I white students from participating in Title I projects. An example of this prohibition was the Title I funding of two specialized high schools. Both Work Study and Lincoln were planned as racially mixed specialized high schools, with voluntary attendance by the students. Both were funded under Title I, ESEA. Although the federal requirements limit eligibility of attendance to students living in an area which has been declared a Title I eligibility area, a 10% enrollment from other areas was first permitted in these schools but was later (1972) prohibited by the federal authorities. Work Study was scheduled to open in 1969, but it was not completed until January 1970. Faculty and administration were racially mixed since the time when they were engaged in the preparation of the program in temporary facilities, and before the school was opened to the students. By the time the school opened the ratio of the student body was 92.6% black and 7.4% white. The Lincoln high school was opened in 1966, after the Board acquired and renovated the educational building of Temple Israel for use as an opportunity school for students with special adjustment problems. The student body was composed of 266 black (94%) and 17 white (6%) students. By 1973 all students were black. The dilution factor is especially important in light of the fact that Title I has not been fully funded by Congress and not all Title I eligible students can receive services. This makes it all the more necessary for the Board to concentrate its funds on the areas having the highest concentration of poverty students. These areas are mostly black. The prohibition against diluting a Title I project has not been the only barrier to mixing Title I eligible students (primarily black) with other students. As has been stated above, it has been the policy of HEW to restrict the use of Title I funds to eligible students from eligible areas. When students have moved to a non-eligible area, they have no longer been eligible for Title I benefits. The regulations have not indicated (and have, indeed, suggested otherwise) that Title I students moved by a school district to a school in a non-Title I area (when no court ordered desegregation plan was in effect) would continue to be eligible for Title I services. The evidence in the record shows that the Board followed and had to follow the regulations set out by HEW to receive Title I funding, which the Board needed. There is no evidence of any segregative intent by the Board with respect to how Title I funds were used. G. Resulting De Facto Resegregation. 1. Transitions in the schools. As a result of the resegregative forces described above, with the resulting massive population movements — out-migration of whites to the suburbs, intra-city migration of blacks — many transitions occurred in the St. Louis public schools. These transitions illustrate the great mobility of both black and white populations. These changes were largely unforeseeable and/or beyond the control of the Board. The major transition in St. Louis after the Brown decision was the change from a majority white system to a majority black school system. Another major change was the substantial increase in student population (mostly black) in the west and northwest areas of the City and a decrease in enrollment in the southern areas of the City. Much of the white migration from St. Louis was from the west and northwest areas of the City. This white population was rapidly replaced by a larger black population, causing a dense black population in the west and northwest areas of St. Louis. The intra-city population changes noted above are reflected in the transition of a number of schools from well racially mixed student bodies to virtually all black enrollment (more than 90%). In the 1962-63 school year there were 30 regular elementary schools with black enrollment in the range from 10% to 80%. Of these, 14 reached a black enrollment of over 91% by the school year 1973-74. This transition is shown in the following tabulation: An analysis of the statistical data available during the period from 1953 to 1973 shows that of the 24 schools which reached a black pupil enrollment of approximately 50%, 22 increased that ratio to approximately 90% within the average period of 3.59 years, with a minimum of two years for seven schools and a maximum of eight years in the case of one school. Both schools which in 1972-73 had an enrollment still under the 90% level involved special attendance areas: (a) the Stix school’s attendance zone is located in the area around the Hospital group, Kingshighway, the Washington University Medical School and related facilities which enhance the presence of a sizeable number of white families of child-bearing age; and (b) the other school, Waring, represents a unique situation, because of the adjoining controlled integrated neighborhood of Laclede Tpwne and its nature of a demonstration center for Harris Teacher’s College with city-wide optional attendance. Of the 25 public schools of the City which reached a black enrollment of approximately 70%, within the average period of 2.04 years, ranging from one year for five schools to eight years in the case of one school, 24 out of these 25 schools reached the 90% level of black enrollment. The only exception as of 1972-73 was Waring, which was a specifically controlled situation, as previously stated. The record shows that the experience in St. Louis has been that stable integration in a particular school is generally achieved only when the percentage of blacks remains below 50%. When the percentage of blacks in an integrated situation reaches about 50%, what was an integrated enrollment becomes an all black or virtually all black enrollment. The racial transitions in schools once the student enrollment reaches about 50% black is one major reason for the racial imbalance in the west and northwest area schools. Another reason is the dense concentration of blacks in those areas. The impact upon the public school system of all of the massive population movements encompassing migration into and within the City and subsequent heavy concentration of blacks in the west and northwest portions of the City, compounded by the major migration of whites from those areas, resulted in staggering problems for the Board, particularly as to planning and capacity. Great shifts in population caused some areas to lose much of the school population while other areas gained large numbers of students in a very short period of time. A striking example of this is set out in “Urban Decay in St. Louis” by the Institute for Urban and Regional Studies of Washington University (1972). This report showed that schools in the central section of the City lost up to 35% of their initial population in six months whereas the northwest area gained as much as 25% new students in the same amount of time. Other examples of student transience are noted by the Board. Superintendent Kottmeyer advised the Board in 1960 that “between the closing of school in June and the opening of school in September one out of every five children in the elementary schools will be residing at a different address and attending a different school.” (Board meeting, April 12, 1960.) With this pervasive student transience, the Board was faced with the chore of constantly finding new places in schools for students. School enrollments in the west and northwest areas of the City increased beyond the capacity of existing facilities. The Board had the difficult task of planning for space for these students with the uncertainty of where further population shifts might place or dislocate these students. The result of this problem was an imbalance in school utilization. In January, 1964, Community Resources issued its study “Elementary Education Facilities in St. Louis” which focused on this problem. The study states: “We recognize that the problem is not one that has been created by any action of the school system. On the contrary it results from earlier difficulties, compounded by the gross and inadequately planned dislocation of the Negro population in St. Louis incident to the development of the Mill Creek program. Nevertheless, it is a problem which must be dealt with by the school system.” The eventual result of the massive population shifts and changing school enrollments was the resegregation of many schools that were previously integrated. Resegregation was first noted in the St. Louis schools in 1962 when racial data was again taken [no racial data was recorded from 1954-1962]. In May, 1962, the Committee on Desegregation, chaired by James A. Scott, gave a prog