Full opinion text
MEMORANDUM OPINION AND ORDER CONTIE, District Judge. On January 13, 1978 the plaintiffs, Doris and Maynard Bell, Ann and Cecil Benoit, and Paulette and Jacques McGregor, sueing on behalf of themselves and their minor children, and on behalf of all others similarly situated, filed this action alleging a deprivation of their constitutional rights under 42 U.S.C. § 1983 and the fifth and fourteenth amendments to the United States Constitution. This Court has jurisdiction of the controversy under 28 U.S.C. §§ 1331, and 1343. Count I of the complaint alleged that the racial segregation in the Akron public schools was caused by the intentionally discriminatory actions of the defendant Board of Education of the Akron Public Schools and Superintendent Conrad Ott. Count II of the complaint alleged that the defendant City of Akron, Mayor John S. Ballard, the Akron Metropolitan Housing Authority and its director, and the President of the Ohio Real Estate Commission Paul J. Everson caused the residential racial segregation in Akron by intentional discriminatory acts. In addition to a declaration of rights, the plaintiffs sought a remedy that would eliminate the effects of any discrimination found by the Court. Under Count I they asked the Court to desegregate the schools in west Akron. Alleging that the city-wide discrimination in housing caused segregation in the schools, the plaintiffs asked the Court to desegregate the entire school system if they prevailed on Count II. On October 6,1978 the Court certified the case as a class action, defining two subclasses: 1. All white students and parents of white students now attending or in the future eligible to attend the Akron Public Schools. 2. All non-white students and parents of non-white students now attending or in the future eligible to attend the Akron Public Schools. The final allegations pressed at trial were contained in plaintiffs’ second, third, and final updates, filed on August 1, September 1, and September 15,1978. The Court duly heard testimony and received exhibits on October 16 through 20, 23, and 27, 30, 31, and November 1 through 3, 1978. The following shall constitute the Court’s findings of fact and conclusions of law, in accordance with Rule 52, Federal Rules of Civil Procedure. COUNT I: THE SCHOOL CASE A. Applicable Legal Principles The Akron schools were never segregated by statute, and the plaintiffs in this action do not claim that the Akron schools are operated as a completely dual school system with separate schools for white and black students. Consequently, before the school authorities can be found liable for the de facto separation of the races in the Akron schools, the plaintiffs must show that race was a factor in the decisionmaking process. Proof of racially discriminatory purpose is required to show a violation of the equal protection clause. Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597 (1976). It is not necessary, however, to show that racial concerns were the dominant or primary factors in the decisionmaking process. If race was a factor in the decisionmaking process, the actions of the school authorities are unconstitutional. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-66, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1976). As it is rare to find direct evidence of discriminatory purpose, the Court must look to other evidence to determine the factors which entered into the decisionmaking. Quoting Oliver v. Michigan State Board of Education, 508 F.2d 178, 182 (6th Cir.), cert. denied, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1974), the plaintiffs say that: A presumption of segregative purpose arises when plaintiffs establish that the natural, probable, and foreseeable result of public officials’ action or inaction was an increase or perpetuation of public school segregation. The presumption becomes proof unless defendants affirmatively establish that their action or inaction was a consistent and resolute application of racially neutral policies. Trial Brief for Plaintiffs at 16 (emphasis omitted). Considering this language from Oliver the Supreme Court recently said: We have never held that as a general proposition the foreseeability of segregative consequences makes out a prima facie case of purposeful racial discrimination and shifts the burden of producing evidence to the defendants if they are to escape judgment; and even more clearly there is no warrant in our cases for holding that such foreseeability routinely shifts the burden of persuasion to the defendants. Of course, . . proof of foreseeable consequences is one type of quite relevant evidence of racially discriminatory purpose . Dayton Board of Education v. Brinkman (Dayton II), 443 U.S. 526, 536 n. 9, 99 S.Ct. 2971, 2978 n. 9, 61 L.Ed.2d 720 (1979). The Supreme Court has elsewhere described the nature of the district court’s 'factual investigation: Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such ehv cumstantial and direct evidence of intent as may be available. The impact of official action . may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race emerges from the effect of the state action even when the governing legislation appears neutral on its face. But such cases are rare. Absent a pat- ' tern as stark as that in Gomillion [v. Lightfoot, 364 U.S. 339 (1960),] or Yick Wo [v. Hopkins, 118 U.S. 356 (1886),] im- ' pact alone is not determinative, and the Court must look to other evidence. The historical background of the decision is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes. Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. Substantive departures too may be relevant, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached. The legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decision-making body, minutes of its meetings or reports. . The foregoing summary identified, without purporting to be exhaustive, subjects of proper inquiry in determining whether racially discriminatory intent existed. . . . Arlington Heights, supra 429 U.S. at 266-68, 97 S.Ct. at 564r-565 (footnotes and citations omitted). If the Court concludes after this inquiry that the school authorities have taken actions motivated by segregatory intent and that these actions affect a substantial portion of the students, teachers, and facilities within the school system, then in most cases the Court will find that the school authorities have maintained a dual school system in violation of the fourteenth amendment. Keyes v. School District Number 1, 413 U.S. 189, 94 S.Ct. 27, 38 L.Ed.2d 131 (1973). Plainly a finding of intentional segregation as to a portion of a school system is not devoid of probative value in assessing the school authorities; intent with respect to other parts of the same school system. . Applying these principles in the special context of school desegregation cases, we hold that a finding of intentionally segregative acts in a meaningful portion of a school system . . creates a presumption that other segregated schooling within the system is not adventitious. It establishes, in other words, a prima facie case of unlawful segregative design on the part of school authorities, and shifts to those authorities the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions. Id. at 207-08, 93 S.Ct. at 2697. Before proceeding to a discussion of the evidence offered at trial, the Court must consider the effect of the prior Akron school case, Arnold v. Ott, No. C65-707 (N.D.Ohio Oct. 18, 1968), on the present litigation. The defendant Board and Superintendent argue that, if admissible at all, evidence concerning their actions prior to January 16, 1968 should be considered by the Court only for the limited purpose of demonstrating the intent underlying their conduct subsequent to that date. In Arnold, Negro and white minors brought a class action through their parents and next friends charging the defendants (the board of education, the superintendent, and the individual board members) with racial discrimination in the administration of the Akron public schools. The class certified herein is similar to the class described in the Arnold complaint, and the board and the superintendent were named defendants in both actions. Because of these similarities, the Court must determine how res judicata principles apply, and the effect of the Arnold decision on the instant action. The school authorities argue that Arnold was decided after the 1966 amendment to Rule 23, Federal Rules of Civil Procedure, and that under the amended rule, res judicata operates to bar retrial of all issues which were litigated or which might have been litigated in the prior suit. See 3B Moore’s Federal Practice ¶ 23.60 (2d ed. 1948); 7A C. Wright & A. Miller, Federal Practice & Procedure § 1789 (1972). Plaintiffs contend that these matters are governed by Bronson v. Board of Education, 525 F.2d 344 (6th Cir. 1975). In Bronson, the Cincinnati school officials were called upon to defend their allegedly discriminatory practices in a second class action suit. The Sixth Circuit applied a rule of issue preclusion, holding that the plaintiffs would be permitted to offer evidence concerning events which occurred before the earlier case to shed light on the claim that minority pupils and their parents had been denied equal protection during the period involved in the later action. The Court recognized that the previous Cincinnati case was a spurious class action under the original Rule 23, and that “[ajccording to the authorities, an adverse judgment in such an action was not binding on persons who were not parties to the class action.” Id. at 349 (citations omitted). Still, the Court determined that the rule of issue preclusion achieves “[t]he proper balance between the public policy of requiring a finality to judgments which settle issues in litigation and that of preventing the denial of equal protection of the law to a generation which comes after such a judgment has been rendered.” Id. When Arnold was filed in 1965 original Rule 23 was in effect, but the district court rendered its opinion in October 1968, after Rule 23 was amended. In the order promulgating the proposed 1966 amendments the Supreme Court said the amendments “shall take effect on July 1, 1966, and shall govern in all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action then pending would not be feasible or would work injustice, in which event the former procedure applies.” Arnold was pending on July 1,1966, and the court did not make a finding that it was not feasible or that it would work injustice to apply Rule 23 as amended. Thus, Arnold must be treated under amended Rule 23. It further appears from the record in the Arnold case that no class was ever certified as required by Rule 23(c)(1). Under amended Rule 23 the Sixth Circuit has clearly placed the burden on the district court to certify a class as required by the Rule. Shipp v. Memphis Area Office, 581 F.2d 1167 (6th Cir. 1978); Senter v. General Motors Corp., 532 F.2d 511 (6th Cir. 1976); Garrett v. City of Hamtramck, 503 F.2d 1236 (6th Cir. 1974). Yet the Court has also indicated that actions should be treated as class actions where they were treated as such by the parties and by the court below, and where the requirements of Rule 23 are satisfied. Senter, supra; see also Shipp, supra. Arnold satisfies the requirements of Rule 23(a): the black and white students in the Akron public schools in 1965 were too numerous to be joined in one action, the question whether the school officials had discriminated on the basis of race was common to all their claims, and there is no suggestion the named representatives did not adequately protect the interests of the class. The relief sought in Arnold and the nature of the common questions indicate it was appropriate for class certification under Rule 23(b)(2). Nevertheless, there is a significant difference between a decision on direct appeal that in effect certifies a class action for res judicata purposes, and a similar decision in a collateral proceeding where res judicata issues are raised. Consequently, the decisions in Senter, supra, and Shipp, supra, involving cases on direct appeal cannot guide this Court in determining the effect of the Arnold case on the present action which is an entirely separate case. Because of the potential res judicata effects of class actions, Rule 23(c)(3) states that when an action is maintained as a class action under subdivision (b)(2), the judgment, “whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class.” The Arnold opinion describes the suit as: “a class action brought by certain minors through their parents and next friends,” but the opinion never describes the class. The judgment entry is similarly defective. See Ridinger v. General Motors Corp., 474 F.2d 949 (6th Cir. 1972) (case remanded in part because of the failure to describe the class in the judgment entry); see also Board of School Commissioners v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975). Because the requirements of Rule 23(c)(3) were not satisfied in Arnold, and because of the Court’s concern about certifying the class for a prior case in a collateral proceeding, the Court will not give Arnold res judicata effect. The Arnold decision is still binding on the named parties to the action; to that extent it is like the old spurious class action under original Rule 23. Thus, just as the Court in Bronson determined that a rule of issue preclusion achieved the proper balance between the relevant competing policy concerns, the Court determines that Arnold should preclude plaintiffs from relitigating in this proceeding the issues which were actually litigated in the prior suit. Bronson, supra at 349. Evidence from the period before Arnold is relevant background to show patterns and practices continuing after the date which may indicate race was a factor in the decisionmaking of school authorities. B. Discussion and Findings of Fact The Akron public school system has changed dramatically over the last several decades, and the broad outlines of some of those changes are necessary to an understanding of the specific actions challenged by the plaintiffs. In 1950 the Akron Public School system was composed of 45 elementary schools serving grades kindergarten through 8, and 7 high schools serving grades 9 through 12. From the black enrollment at the high schools it appears that the black population was distributed throughout the central city, while the areas annexed in the 1920’s and 1930’s were virtually all white: Central High School was 11.4% black, East 13.6% black, South 18.7% black, West 35.5% black, Buchtel .6% black, Kenmore .4% black, and Garfield 4.2% black. After World War II there was a sharp increase in the birth rate. This population bulge was eventually felt in the schools, causing housing crises at the elementary schools in the early 1950’s. Kindergarten enrollments peaked in 1952 at 5,815; total elementary enrollment peaked in 1958 at 28,248. In response to changing educational concepts, and spurred by the need for classroom space, the school system moved to a new grade structure during the 1950’s. Partially through remodeling and partially through new construction the system acquired its ten junior high schools during this decade. The junior high enrollment, encompassing grades 7 through 9 went from 8,000 students in 1948 to a peak of 13,260 in 1961. These students reached the senior high schools in the early 60’s causing an enrollment peak in grades 10 through 12 of 12,550. The black enrollment has steadily increased in the Akron Public Schools: These figures also reflect another important trend: the decline in total enrollment. Declining enrollments have enabled the school system to adapt classroom space to meet modern educational programs by creating learning resource centers and similar facilities. Other programs, for example, vocational education, which is a very important part of the senior high school program, require new construction. For the 1978-79 school year the Akron school system was housed in 9 senior high school buildings, 10 junior high schools, and 45 elementary schools. The table, attached hereto as Appendix A, sets out the enrollment at these schools and the racial breakdown of the student body. The plaintiffs’ specific allegations focus primarily on schools with heavy black enrollments and their neighboring schools. Fourteen schools in the Akron school system had an enrollment 70% or more black in 1978, and in the plaintiffs’ terminology these schools are racially identifiable black schools: Buchtel and South at the high school level, West, Thornton, and Perkins at the junior high school level, Bryan, Crouse, Findley, Lane, Margaret Park, Rankin, Robinson, Schumacher, and Stewart at the elementary school level. The school authorities closed Bryan at the end of the 1977-78 school year and plan to close Lane at the end of the 1979-80 school year. The plaintiffs have no objection to those closures, and did not introduce any evidence concerning actions of the school authorities that affected Bryan or Lane. In the discussion that follows, most of the figures concerning enrollments at particular schools, the racial composition of the student body, and the descriptions of boundary and option zone changes over the years have been taken from the building folders submitted as Court exhibits. The Court has also used the school capacity figures from the building folders. The Court recognizes that the capacity figures were obtained by a simple calculation, that they do not reflect a school’s ability to accommodate a modern educational program, and furthermore that other factors would enter into a determination of optimum utilization at any given point in time. Yet a concept of building capacity is necessary to analyze attendance zone and option zone changes. Information concerning the number of students affected by a particular change and the race of those students was not included in the Court exhibits. The plaintiff’s expert, Dr. Saltman, estimated the number and the race of students involved in a particular boundary change or option zone through a careful analysis of census information. For some of the specific changes attacked by the plaintiffs the defendant school authorities offered their own figures. Sometimes the school authorities determined the names of the particular students involved and then determined their race. For information concerning the race of students in the Mount Hope and Little Farms areas, for example, the bus driver who had picked up the children years before was consulted. The Court is acutely aware of the inherent problems in the various methods used by the parties. See trial transcript Vol. 13, pp. 28-36. In many instances the parties’ figures do not differ significantly, which suggests that on the average both methods are reasonable. In some instances, however, it appears that the plaintiffs’ method of applying averages to small portions of a census tract and interpolating from census data leads to faulty results. For example, the maps admitted into evidence and the testimony at trial convince the Court that the plaintiffs’ estimate of 44 high school students in the Buchtel-Firestone optional zone in the northwest corner of the Buchtel zone in 1963 is unreliable. Likewise, the Court finds that no students were affected by the 1970 change in the South-Kenmore, Thornton-Kenmore boundary. Given the potential inaccuracy of census counts, the necessity for interpolating between census years, and the estimates that must be made in applying census data to changes in school boundaries and option zones, the Court prefers the defendants’ figures. 1. High Schools On the high school level the plaintiffs make no claims involving East, Ellet, or North High School. The Firestone, Central-Hower, Garfield, and Kenmore schools are only involved to the extent that boundary changes affecting South and Buchtel High Schools affected these four schools. Consequently, the Court’s discussion of the claims involving the high schools will be structured around the changes which occurred at South and Buchtel. In 1940 South High School was located in the present Thornton Junior High School building, near the intersection of Thornton and South Main Streets. The South attendance zone was bounded on the north by Wooster Avenue. At Pine Street the boundary angled southeast to the railroad tracks, heading east along Cross Street to Brown Street, then south, gradually angling west. After again meeting the railroad tracks, the boundary ran south along the tracks to the canal, north along the canal to the southern tip of Summit Lake, northwest along Manchester Road, and then west along Indian Trail. Finally, the boundary ran north along Hawkins to the intersection with Wooster. The building capacity was 1,320 students and it was serving an enrollment of 2,045 (’42 157/1704 9.2%). Several optional zones involving South High School which were created in the early years have continued to the present. In 1944 the southeast corner of Copley Township across from Collier Road and known as Akron Little Farms was made optional between Buchtel, Kenmore, and South. The Mount Hope area (south of Wooster, bounded on the east by Hawkins Avenue, cutting west across Mud Run Park, then due south along the western edge of the Park, continuing south to the corporation limit) was optional between Buchtel, Kenmore, and South from 1955 through 1978. Both areas were remote from the schools. In 1950 the area north of Bartges Street on the western edge of the Opportunity Park urban renewal area was transferred from South (225/1203 18.7%) to West (237/668 35.5%). Serving an enrollment of 668 students with a capacity of 1200, West was then substantially underutilized. Another optional zone was created in 1952, this one within the South attendance zone. A line was drawn south on East Avenue to Manchester, turning east at Lakemont and then running south down the center of Summit Lake; all students west of the line were given the option of attending Kenmore. In 1953 West High School became West Junior High School and the area immediately north of the northeast corner of the South attendance zone — southwest of West Exchange Street, west to Perkins Park— was placed in the South attendance zone. In 1954 a small square in the southeastern portion of the South attendance zone (353/1033 34.2%) was transferred to Garfield (72/1110 6.5%). The change put an additional 49 white students into Garfield which was then underutilized serving an enrollment of 1110 with a capacity of 1260. The change with Garfield made the senior high boundary equivalent to the boundary between the junior high schools. (The area was very close to Goodrich, the junior high serving the Garfield attendance area.) As part of the move to the new grade structure in the 1950’s the Board began searching for a building site in the South zone. There were only two undeveloped sites within the South attendance zone: one was owned by the city of Akron, and the other was owned by the Catholic Diocese of Cleveland adjacent to Saint Mary’s School. The site owned by the Cleveland Diocese was next to the South/Thornton building, but the Diocese refused to sell. Rather than condemn property and tear down homes to build a new school, the Board chose in 1954 to work out an agreement with the city and to build on the other undeveloped site. Thus, the new South High School building which opened in 1956 (391/862 45.4%) was located 1.4 miles west of the present Thornton building, just one block south of the northern edge of the South attendance zone. With the opening of the new school, the former South-Kenmore option was cut down to include only the extreme southwest corner of the attendance zone. Several blocks in the southwest corner of the South attendance zone, along Manchester and Leighton, were moved into the Kenmore zone. The change affected 6 white students at the high school level, and was matched by changes at the junior high and elementary school levels. The portion of the South zone east of the railroad tracks was quite a distance from the new school, and the area east of the tracks and north of South Street was made optional to Central (208/1102 18.9%). The area east of the tracks and south of South Street was made optional to Garfield (58/1135 5.1%). The area in the Buchtel attendance zone (61/1220 5.0%) from Wooster Avenue north to Diagonal Road (bounded by Perkins Park in the northeast) was made optional to South. The establishment of this zone permitted 184 white students and 11 black students to attend South instead of Buchtel if they chose. Adjacent to this option zone, the east side of Fern and the south side of Euclid from Fern east to Edgewood were moved from Buchtel to South. (A year later the houses on the north side of Euclid were taken out of the option zone and added to the South zone. This change affected 5 black students, and made Perkins Park the boundary between the schools.) The plaintiffs claim that the new South High School was built as a containment school for blacks. They point to its capacity of 900, substantially below the 1,320 capacity of the South/Thornton building. At the same time the plaintiffs contend that the option zones around the South building permitted white students to escape attending South and enabled them to attend “whiter” schools instead. The plaintiffs rely heavily on the testimony of Reverend Morgan, a black man who is now a school board member. About the time the new South High School opened, Rev. Morgan received a phone call from Mrs. Case, a white woman who was then on the board. She said something to the effect that the black community did not need to be concerned about the representation of black persons on the school board because the new South High School was a good school for colored people. After 20-plus years Rev. Morgan’s testimony understandably reflected only the broad outlines of his phone conversation with Mrs. Case. The Court finds no reason to doubt the accuracy of the recollection, but the Court cannot draw any inference of intent from this isolated statement. The Court finds simply that Mrs. Case was aware that the new South High School would have a number of black students in attendance. With respect to the capacity of the new South building, the defendants argue that it was built to serve its projected enrollment. The building levy that enabled the Board to build South High also provided the funds to construct East High School and several junior high schools. Since there is no claim that race was a factor in the decisions affecting East High School, a comparison of East and South is a very useful tool for evaluating whether race was an unarticulated factor in the decisions affecting South High School. A comparison of the enrollments at South and East before the construction, making allowance for the change in the grade structure that the new buildings were to serve (10 through 12 instead of 9 through 12), demonstrates that both buildings were constructed to serve their projected enrollments. Furthermore, the size of South was comparable to the other secondary schools built at about the same time to serve three grades. Finally, if the Board had intended to make South a containment school, it could have done a better job. For example, the South attendance zone could have been altered to bring blacks in the Buchtel-South option zone into South, or the predominately white area in the old South-Kenmore option (which was in effect from 1952 through 1956) could have been put into Kenmore. The plaintiffs also draw inferences of racial motivation from the number of optional zones surrounding the new South High School when it opened. But the Court finds that the new location of South High School is the reason for the unusually high number of option zones. The options to Garfield, Central, and Buchtel were created in 1956; the optional zone with Kenmore was substantially reduced in 1956. The timing and the location of the option zones demonstrate that they were created because of the distance (or in the case of the Buchtel-South option, proximity) to the new South High School. In 1958 the area east of the railroad tracks that had been optional to Garfield since 1956 was put into the Garfield zone (91/1395 6.5%). There were approximately 15 white and 35 black high school students in this area who had already been exercising the option to Garfield, so the change had no effect on the South enrollment in 1958. The area in the southwest portion of the South zone which had been optional to Kenmore, and additional area to the north of the option zone was transferred from South (445/959 46.4%) to Kenmore (11/1806 .6%) in 1958. The change affected 98 white students and 2 black students; 34 of the students had already been exercising the option to Kenmore. The same area was also transferred from Thornton to Kenmore on the junior high school level. Contemporary documents indicate that the superintendent perceived that there was room to accommodate the students at Kenmore. In 1960 the small area in the South zone south of the expressway was transferred to Kenmore. The change was made to relieve Thornton at the junior high level, while trying to maintain common junior and senior high school boundaries in this area. By 1960 construction on the expressway made it difficult for students to reach South. Approximately 30 white students were affected. Also in 1960 the option to South was removed for the 5 white students in the extreme west end of the Buchtel-South optional zone. In 1962 Fern Street was moved from the South zone to the Buchtel zone, and the area that had been optional between South and Central since 1956 was moved to Central. The area transferred to Central contained about 105 white and 30 black high school students. South High School was over capacity by about 100 students in 1962, with an enrollment of 1,016. Enrollment peaked the next year at 1,109 students (812/1109 73.2%). Between 1966 and 1967 the Opportunity Park urban renewal project caused enrollment to drop from 1,066 to 975. Enrollment has gradually declined since then, reaching 608 in 1977 (593/608 97.6%). A technical description change was made in the attendance manuals in 1970 placing the South-Kenmore boundary along the expressway. No students were affected. The Court finds that race was not a factor in any of the decisions involving attendance zone or option zone changes at South High School. The second high school which is the focus of the plaintiffs’ allegations is Buchtel High School (’42 17/1385 1.2%), located in central, western Akron on Copley Road. In 1940 the Buchtel attendance zone was bounded on the north and west by the corporation limit. The eastern boundary started at the intersection of North Portage Path and the corporation limit, running south along South Portage Path, then southwest along Diagonal Road, south along East Avenue, and west along Wooster Avenue up to the corporation limit. In 1950 a small triangle southeast of the intersection of South Portage Path and West Exchange Street was transferred from West to Buchtel. When West became a junior high school in 1953 the great bulk of the West attendance zone was transferred to Buchtel. After the change in 1953 the eastern boundary of the Buchtel zone ran south along the Ohio canal for quite a distance, the boundary then angled west cutting off the southern corner of the Mount Peace Cemetery, angling down in several jogs to run along Hall Street, west along Copley Road to Edgewood, west along Euclid (including the homes on the south side of Euclid), south along Fern Street (including the homes on the east side of Fern), finally running west along Wooster Avenue. In 1956 and 1958 there were two small boundary changes between Buchtel and South which have been previously discussed with respect to South; likewise, the Buchtel-South optional zone created in 1956. In 1966 students living along Fern were again reassigned from South to Buchtel. The other major change in the Buchtel zone was the transfer of the northern portion of the zone to Firestone High School when it opened in 1962. The Firestone zone was carved out of the Buchtel zone, bounded on the west and north by the corporation limit, on the east by the Ohio canal. Moving from east to west the southern boundary ran just south of Memorial Parkway, continuing just south of Twin Oaks Road, then northwest down the center of West Market Street, turning southwest if followed Franks Boulevard to the corporation limit. Two optional zones were created between Buchtel and Firestone. The first was created with the opening of Firestone in 1962. Equivalent to the West-Litchfield option zone at the junior high school level, this area was bounded on the west by North Portage Path, on the south by Edgerton and Pasadena, on the east by the Ohio canal, and on the north by Memorial Parkway. The second optional zone was created a year later and included the sparsely settled area north of Mull Avenue and south of Franks Boulevard in the northwest comer of the Buchtel zone. The plaintiffs’ arguments concerning Buchtel (’62 229/1953 11.7%) center on the construction of Firestone High School (’62 0/661 0%). They say that the construction of Litchfield Junior High in 1959 on a campus site, and the anticipated construction of a high school on the same site spurred population growth in northwest Akron. Further, they say that by the placement of the new high school, and by dividing the old zone with an east-west line rather than a north-south line the school authorities intended to make Buchtel a black school and the new school a white school. The evidence establishes, however, that the construction of homes in northwest Akron preceded the construction of Litchfield Junior High. Elementary school enrollments in the area also reveal the growing student population. The Board does not operate under a neighborhood school policy as such, but schools have been built near the students they are to serve because transportation of students costs the Board money that could otherwise be spent on programming. The Court finds that Firestone High School was built to serve an existing pupil population. The decision to build the Firestone-Litchfield complex on its present site can be further understood by looking at the location of Buchtel High School and the residential and commercial development patterns within the Buchtel zone as it existed at the time the decision was made. Buchtel was at the approximate center of the zone on an east-west line, but on a north-south line it was substantially to the south of the zone. The western portion of the attendance zone along the corporation limit was, and is, sparsely developed. A large metropolitan park is located in the extreme northern portion of the zone near the corporation limit. The main traffic arteries West Market Street and West Exchange Street run from downtown Akron to the northwest corner of the city bisecting the zone. Residential patterns were well developed around Buchtel, and were developing in the area south of the metropolitan park. These areas were separated by commercial development at the intersection of West Market and West Exchange Streets and around the railroad crossing on West Market Street. It was logical to build the new high school near the students it would serve in the residential area to the north. These, and other similar matters, also explain the two option zones. The BuchtelFirestone optional zone created in 1962 was approximately the same distance from each of the schools, perhaps a little closer to Buchtel. To reach Buchtel the students would have to cross both West Market and West Exchange Streets. To reach Firestone, however, the students would have to circumvent the Portage Country Club. The optional zone created in 1963 was substantially closer to Firestone than to Buchtel, but it was separated from Firestone by West Market Street and the commercial development around the railroad tracks. Distance and access factors made it logical to give an option to students in these two areas. The Court finds that race was not a factor in any of the decisionmaking affecting Buchtel High School. At the high school level the plaintiffs also attack the policy of permitting students to transfer outside of their home district to take a course which is not offered at the home school. Such special subjects transfers are one of thirteen kinds of special permits that are issued by the Office of Pupil Services to allow students at any grade level to attend schools outside the attendance zone of their legal residence. The attack on special subjects transfers policy applies only at the high school level because the curriculum uniformity at the elementary and junior high schools precludes such transfers in the lower grades. The policy is, on its face, racially neutral. The figures compiled by the plaintiffs from data supplied by the school authorities demonstrate that the policy increased the proportion of black students attending South and Buchtel (Plaintiffs’ exhibits 60, 61). There is no evidence, however, that suggests that race was a factor in decisions by the school authorities regarding the transfer policy. The authorities recognized that transfer policies could be abused, but the Board Letter of November 16, 1964 (Plaintiffs’ exhibit 89), and the testimony of Theresa Haney indicate that the authorities have been vigilant in monitoring the program to assure that students transferring for special subjects enroll in and complete the course (or courses) which were the basis ■‘’or the special subject permit. 2. Junior High Schools On the junior high school level the plaintiffs made no claims with respect to Jennings, Goodyear, or Hyre. Five other schools, Litchfield, Goodrich, Kent, Kenmore, and Innes, are only involved to the extent that boundary changes and optional zones with those schools also involved Perkins or West or Thornton. The discussion of the plaintiffs’ claims concerning the junior high schools will therefore be organized around a discussion of the changes which occurred at West, Thornton, and Perkins. West Junior High School was the first junior high in west Akron. When it opened in 1953 (305/1009 30.2%) in the old West High School building its attendance zone was huge. Starting at the northern corporation limit the zone was bounded on the east by the Ohio canal. The boundary followed the canal into the downtown area, following Main Street through downtown when the canal disappeared, and picking up the canal when it reemerged south of downtown. The boundary then followed Wooster Avenue west to the intersection with Hawkins, north on Hawkins to Diagonal Road. The boundary then angled northeast following Hardesty Boulevard north to Courtland Avenue, then east to Packard Drive, north to Stoner Street, east to Mercer Avenue, north to Cadillac, east to Storer Avenue, north to Copley Road, east to Noble Avenue, and north to Delia Avenue. The boundary line followed Delia Avenue and Hollinger west to North Portage Path; following it north to Memorial Parkway. Finally the boundary ran north to the corporation limit on Merriman Road. Students from the Mount Hope and Little Farms areas were assigned to West along with their classmates from Crouse Elementary School who were within the West attendance area. In 1955 several blocks just north of downtown, south of the railroad tracks and west of the viaduct leading to North Hill, were moved from the Jennings Junior High attendance zone to the West Junior High zone. Mount Hope was reassigned to Innes (grades 7 and 8) and Kenmore (grade 9) in 1959. Litchfield Junior High opened in 1959 in northwest Akron, and the area north of Memorial Parkway was reassigned from West (646/1254 51.5%) to Litchfield (0/481 0%). In 1960 a small area north of Wooster Avenue, bounded on the west by Hawkins Avenue, on the north by Diagonal Road, and on the east by Hardesty Boulevard was transferred to Perkins. In 1962 the boundary with Litchfield established several years earlier was moved south to include the houses on the south side of Memorial Parkway. This change gave the junior and senior high schools a common boundary; although the number of students involved is unknown, only three houses were affected. In 1966 another small area was transferred from West (895/1230 72.8%) to Perkins (266/1148 23.2%), just south and east of the area which had been reassigned in 1960. Sixteen of the 24 students affected by the 1966 change were black. In 1966 Akron Little Farms was assigned to Perkins. Starting in 1968 and continuing through 1970 there was a phased move of pupils from West to Thornton (’68 727/1021 71.2%). The area involved was, in rough terms, west of West Exchange Street, east of East Avenue, south of Euclid and north of Wooster. Thornton was underenrolled because of the Opportunity Park urban renewal project. (With a capacity of 1,320 Thornton’s enrollment in 1967 was 997; in 1970 it was up to 1,052.) Ever since Litchfield opened in 1959 there has been an optional zone between Litchfield and West. For the first year the area was partially in the Litchfield zone and partially in the West attendance zone: bounded on the west by West Market Street, on the north by Twin Oaks Road and Memorial Parkway, on the east by the Ohio canal, and on the south by Edgerton Road (including the houses on the south side of Edgerton Road). In 1960 the southern boundary of the optional zone was moved south to include the homes on the north side of Pasadena and the western boundary of the optional area was changed to North Portage Path; the optional area was then contained entirely within the West attendance zone. In 1962 the optional zone was expanded once more to include the houses on the south side of Pasadena. The inclusion of the north side of Pasadena in the option zone affected eight houses. When the line was moved to include the south side of Pasadena no houses were affected. The plaintiffs make a number of claims concerning West. Initially they attack the reassignment of the northern portion of the attendance area to Litchfield, and the reassignment of the southern area — Mount Hope — to Innes. West was one of the first schools to open as a junior high, and it was natural that its original attendance area would be redefined as other junior high schools opened in other parts of the city. The areas detached from the West zone were the farthest from the school. Although they appear very large, neither area was heavily developed. Plaintiffs next focus on the West-Litchfield optional zone. When the option was created, West, with a capacity of 1,200, was overcapacity with an enrollment of 1,254. By making the area optional to Litchfield, the school authorities hoped to relieve enrollment pressure at West without the cost of transporting the students to Litchfield. West enrollment did not drop to capacity until 1968. The plaintiffs note that the Board failed to abolish the option after 1968. The Court, however, refuses to draw any inference of intent to discriminate from this continuing option, and finds that it is consistent with the policy of the Board and Superintendent not to redefine attendance areas or reassign students without a reason. Finally, plaintiffs attack the series of smaller changes in the West attendance area which occurred throughout the 1960’s. As has been noted, West was overcapacity throughout this entire period. The proportion of black students enrolled also increased, from 58.5% in 1960 to 77.2% in 1969. Census data presented to the Court reflects that between 1960 and 1970 the black population in census tract 5068, which is within the West attendance area, went from between 50% and 75% of the total to over 75% black. The Court finds no basis for an inference that race was a factor in the decisions of the school authorities affecting West Junior High. Thornton Junior High opened in the old South High School in 1956 when South moved to its new building. Starting at the intersection of Wooster Avenue and Water the Thornton boundary ran along Water to Exchange Street, southeast to Brown Street, south to Thornton Street, west to Allyn Street, south to South Street, west to Grant Street, south to the railroad tracks. The boundary followed the tracks for about one block west, turned south on Bellows Street, west on Stanton Avenue, then south on Marcy Street for two blocks, then running west and picking up the railroad tracks again. From the intersection of the railroad tracks and the Ohio canal the Thornton boundary followed the same line as the 1940 boundary of the South High School attendance zone, west, north, and east back to the intersection of Wooster Avenue and Water. In 1960 the four blocks in the southeast corner of the Thornton zone, west of Sweitzer Avenue and south of Cole Avenue, were made optional to Goodrich Junior High (81/923 8.8%). In 1962 the area was transferred to Goodrich (109/927 11.8%). The change paralleled a change at the elementary level and affected 20 students, 2 of them black. In 1964 the northeast corner of the Thornton zone, west of the railroad tracks, north of Wheeler and Power Street, was moved from Thornton (’63 596/1125 53%) to Spicer (’63 49/560 8.8%). Access was better to Spicer for the 30 white students and 10 black students affected. The change also reflects the new grade structure at Spicer which was implemented to relieve crowding at Goodrich. When Thornton opened in 1956 the southwest corner of the attendance zone, which had been optional between South and Kenmore at the high school level, remained optional to Kenmore. The area was equivalent to the optional zone between South and Kenmore for 1956-58. In 1957 the optional area was expanded to include the north side of Saxon Avenue. In 1958 the option zone, and an additional area north of the option zone (equivalent to the area transferred that same year on the high school level between South and Kenmore) was moved into the Kenmore zone. Contemporary Board Letters from the Superintendent to the Board indicate that the school officials perceived that there was space at Kenmore, while Thornton was suffering from enrollment pressures (Board exhibits OOOO, PPPP). Since the Board had been busing the students to Thornton, the change enabled the Board to save transportation costs. Construction of the expressway made access to Thornton difficult, and in 1960 another small area (paralleling the change at the high school level made the same year) was moved from Thornton to Innes/Kenmore. Another change in 1970 was simply a description change and affected no students. The only other change affecting Thornton was the phased move from West in 1968-70 which has been discussed in connection with West Junior High. For their claims concerning Thornton Junior High the plaintiffs focus on a series of changes, juxtaposing them against the increasing black enrollment at Thornton during the late fifties and early sixties. The Court finds that distance and access factors were the concern that prompted the early changes involving Kenmore. Enrollments were rising, and school authorities were building many new buildings; thus the elimination of transportation costs was also a factor as the school authorities budgeted for construction and increased building costs. The Opportunity Park urban renewal project and the construction of the expressway also changed substantially the complexion of the Thornton attendance area. Census data reflects increasing proportions of black people in the attendance area. From an analysis of these factors and the changes affecting Thornton, the Court concludes that race was not a factor in the decisionmaking. Perkins was constructed as a junior high school. It is located near the municipal golf course in west Akron, on Mull Avenue. All of the area northwest of the West Junior High School attendance zone was in the Perkins attendance zone in 1954. When Litchfield Junior High opened in 1959 all of the area north of West Market Street was taken out of the Perkins attendance zone (37/1180 3.1%) and assigned to Litchfield. In 1960 the triangular area bounded by West Market Street, Twin Oaks Road and North Portage Path was taken out of the Litchfield zone (0/778 0%) (and out of the Litchfield-West optional zone) and put in the Perkins attendance zone. In 1962 the houses on the south side of Twin Oaks Road were returned to the Litchfield attendance zone. Several blocks north of Wooster Avenue between South Hawkins Avenue, Diagonal Road, and Hardesty Boulevard were also moved in 1960 from West (756/1293 58.5%) to Perkins (50/1174 4.3%). In 1962 the area along Wooster Avenue, just south of the area transferred in 1960, was moved from West to Perkins. In 1966 the area to the east, from the south side of Wooster Avenue, north to Courtland Avenue, bounded on the east by Superior Avenue, was moved from West (895/1230 72.8%) to Perkins (266/1148 23.2%). Twenty-four students were affected by the 1966 change, 16 of them black. In 1966 the Akron Little Farms and Mount Hope areas were assigned to Perkins. Due to increasing enrollment pressure at Perkins the southwest corner of the Perkins zone, west of Hawkins Avenue and south of Esterbrook Road and Redbush Road (including the houses on the north side of these two streets), was transferred to Innes Junior High (32/1322 2.4%) in 1971, along with students from Akron Little Farms and Mount Hope. Although Innes was over capacity in 1971, and still slightly over for 1972, it was under capacity for all the other years from 1969 through 1974. Of the 6 students affected by the change, 3 were black and 3 white. The plaintiffs focus on this last change to Innes in making their claims involving Perkins. The Court finds that the change was prompted by enrollment pressure at Perkins and the available space at Innes. Furthermore, the Court concludes that plaintiffs have failed to show that race was a factor in any of the decisions affecting Perkins. 3. Elementary Schools In discussing the plaintiffs’ claims with respect to the elementary schools the Court will again focus on the schools central to the plaintiffs’ contentions: Findley, Robinson, Crouse, Lane, Margaret Park, Rankin, Schumacher, and Stewart. Findley is located at the intersection of Tallmadge Avenue and Cuyahoga Falls Avenue in north Akron. In 1940 its attendance zone was bounded by the corporation limit on the north; North Howard, Chalkee Street, North Main Street and Dayton Street on the east; Olive Street on the south; and the Ohio canal on the west. A narrow strip of land south of the main part of the attendance zone lying north of the railroad tracks between Cuyahoga Street and the Ohio canal was also in the Findley zone. The southern tip of the narrow strip of land was put in the Crosby attendance zone in 1959. The rest of the strip was put in the Bryan attendance zone in 1967. The plaintiffs’ claims concerning Findley (’55 111/804 13.8%) center on the optional zone with Harris Elementary School (’55 8/670 1.2%) created in 1955, shown on the map in Appendix D. The land area within the optional zone was greatly expanded in 1962, and it was expanded again in 1971. Despite its size, however, the option zone change in 1962 affected only 11 students. All were white. Except for the extreme southeastern portion of the option zone, the area was very sparsely settled. The settled area was actually a little closer to Harris than to Findley. The option was created because of distance and access factors. The Court finds race was not a factor in the decisions affecting Findley. Robinson School is located in east Akron on Fourth Avenue. In 1940 the boundary of the Robinson attendance area (’42 163/1326 12.3%) ran along First Avenue, turned south to run along the railroad tracks; then it turned east to cut off the northern tip of Joy Park and run along Milton Street to Arlington, then north to McKinley Avenue, north along Wynans Avenue, continuing north back to First Avenue. The one major change in the Robinson attendance zone occurred in 1941 when the area south of East Market Street and Cuyahoga Falls Avenue was transferred from Kent. Over the years the houses along Wynans Avenue have been juggled between attendance zones, starting in 1955 when the houses on the northern end of the street and on the west side of the street were given an option to attend Mason. In 1962 the area was apparently transferred into the Mason zone. Nevertheless, the option continued until 1967; then, due to a boundary change between Mason and Glover Elementary Schools, it became an option to Glover, which continued through 1977. The southern portion of the west side of Wynans was made optional to Glover in 1959. The option continued through 1961, and in 1962 the area was included in the Glover attendance zone. There was also an optional area north of Clark Street, including an area along Arlington Street, in the northwest portion of the Robinson zone (’55 731/1239 59%). It was optional to Mason (’55 63/910 6.9%) from 1955 through 1961. When the option terminated the 20 white students affected lost the option to Mason. Robinson had been overcrowded for a long time when the option was created and Mason was well under capacity. The enrollment figures for Robinson indicate that the area was returned to Robinson when it had the capacity to serve its student population. The Court finds no reason to infer that race was a factor in the decisionmaking affecting Robinson as described above. Crouse is located on Diagonal Road directly across the street from Perkins Park. In 1940, starting at the intersection of Copley Road and Edgewood Avenue, the Crouse attendance boundary ran south to Euclid, west to Mallison Avenue, south to Wooster Avenue (picking up the houses on the south side of Wooster from East Avenue west), west to Hawkins Avenue, north to Court-land Avenue, east to Packard Drive, north to Stoner, east to Mercer Avenue, north to Cadillac, east to Storer Avenue, north to Copley Road, and west on Copley back to the intersection with Edgewood. In 1942 an area of approximately five blocks along Courtland Avenue in the northwest corner of the attendance zone was moved from Crouse (91/720 12.7%) to Schumacher (0/582 0%). In 1945 the area west of Hardesty and north of Diagonal Road was likewise moved from Crouse to Schumacher. Also in 1945 Akron Little Farms and Mount Hope were reassigned from Schumacher to Crouse. The southern portion of the Mount Hope district had an option to attend Lawndale. From 1952 to 1960 enrollment at Crouse exceeded the building capacity for all except three years. The proportion of black students was steadily increasing through this period going from 21.1% to 85.3%. In response to the enrollment pressure, Akron Little Farms and Mount Hope were transferred to Margaret Park Elementary School (102/1076 9.5%) in 1956. Of the 100 students affected by the change, 30 were black. That same year the area south of Euclid between Fern and Mallory in the southeast corner of the attendance zone, which had been optional to Lane (’55 545/955 57.1%) in 1955, was reassigned to Crouse (’56 602/1101 54.70%). In 1958 the area was transferred back to Lane. In 1960 part of the same area was transferred back to Crouse. Even with an increased capacity of 1110 students (up from 1080) the enrollment at Crouse (’62 1138/1228 92.7%) exceeded the building capacity by roughly 100 students in 1961 and 1962. In 1962 the area south of Bisson Avenue and Diagonal Road was made optional to Margaret Park (188/970 19.4%). The area contained about 200 elementary students, 75% of them black. Only 23 students opted for Margaret Park in 1963. (This option continued through 1978; few students exercised the option.) In 1963 several blocks either side of Fern were transferred to Lane (814/856 95%); all 30 students affected were black. Also in 1963 several blocks around Fernwood were transferred to Portage Path (27/874 3.1%), and several blocks north of Little were transferred to Rankin (39/976 4.3%). Of the 30 students affected by the change to Portage Path, 28 were black. Similarly, 39 of the 42 students affected by the boundary change with Rankin were black. From its analysis of these changes involving Crouse, the Court finds that enrollment pressures were the overriding concern and that there is no basis to infer that race was a factor in the decisionmaking. Lane Elementary School is located southeast of Crouse Elementary School, behind South High School on Howe Street. In 1940 the northern boundary of the Lane attendance zone ran just south of the houses on the south side of Euclid. On the east it was bounded by Rhodes Avenue, on the south by Thornton Street, and on the west it ran just east of the houses on the west side of Manchester Road and East Avenue, along Wooster Road, and just east of Fern. Three of the four changes in the Lane attendance area and the one option zone involving Lane were changes involving Crouse, which have already been discussed. The one other boundary change at Lane occurred in 1963 when the area west of Moeller Avenue and south of Howe Street in the southwest corner of the zone was moved to Margaret Park. With the exception of 1960, Lane (’63 814/856 95.1%) had been over capacity every year since 1958. Since part of the Crouse attendance area had to be moved to Lane to relieve crowding at Crouse, this area was moved to Margaret Park (’63 352/1080 32.6%). Margaret Park was under capacity and could accommodate the 20 white students and 100 black students affected by the move. The Court finds no reason to infer that race was a factor influencing the decisions affecting Lane. Margaret Park Elementary School is located near the northeast corner of Summit Lake, just south of the expressway. In 1940 the Margaret Park boundary ran east along Wooster Avenue to East Avenue, south to Manchester, south to Thornton Street, east to the canal, south along the canal and the eastern shore of Summit Lake, west to 8th Street, angling northwest, then running west just south of Jason Avenue, to Hawkins Avenue, and then north to Wooster Avenue. In 1953 the zone was extended south between East Avenue and 8th Street to pick up the houses along Indian Trial. Part of area had been in the Pfeiffer attendance zone, and part came from the Smith attendance zone. As noted previously Akron Little Farms and the Mount Hope district were moved from Crouse to Margaret Park in 1956. The option to Lawndale for the students in the southern part of the Mount Hope district continued. Also in 1956 an area in the northwest corner of the Margaret Park (102/1076 9.5%) attendance area was made optional to Crouse. Starting at the intersection of Fess and Wooster Avenue, the boundary for the optional zone ran south to Pontiac Avenue, south on Tyler, continuing south all the way to Morse Street and west to Hawkins Avenue. The option to Crouse was in effect for only a year. In 1959 the southern tip of the Mount Hope area, which was actually part of Norton Township, was r