Full opinion text
MEMORANDUM OPINION AND ORDER BATTISTI, Chief Judge. The process of desegregating the Cleveland city school district is now in a critical phase. The fundamental issue presented to the Court is whether the Cleveland defendants have both the commitment and the capacity to effectively, efficiently, and lawfully implement this Court’s Remedial Order of February 6,1978 (“Remedial Order”), and thereby vindicate the Constitutional rights of the plaintiffs by eradicating the effects of past intentional segregative conduct. In addition, the Court is called upon to determine whether the defendants should be cited for civil contempt for their continuing failure to comply with court orders. The issues are before the Court pursuant to two separate requests, one by the Special Master and another by the plaintiffs. On January 31, 1980, the Special Master submitted a lengthy report which detailed serious deficiencies in the implementation of the Remedial Order. The Special Master urged this Court “to conduct hearings regarding continuing problems which appear to be impairing full and effective implementation of the educational components and ancillary relief ordered by the Court as an integral part of its desegregation remedy.” Report Regarding Remedial Order and Implementation Recommendations By the Special Master, filed January 31, 1980 (“Special Master’s Report of January 31, 1980”). The seriousness of the problems addressed by the Special Master prompted this Court to conduct hearings on the Cleveland defendants’ state of preparedness for Phase II implementation from March 11 to 14, 1980. The Court scheduled additional hearings on April 1,1980, to address the remaining aspects of the Special Master’s Report of January 31, 1980. On March 25, 1980, less than ten days after the commencement of Phase II desegregation, the plaintiffs filed a motion requesting this Court to order the members of the Cleveland Board of Education, the Superintendent of the Cleveland Public Schools, and the Deputy Superintendent for Desegregation Implementation to show cause why they should not be found in civil contempt for failure to comply with Court orders relating to desegregation implementation. The plaintiffs’ motion proposed as a sanction the imposition of a “partial receivership.” In response to the plaintiffs’ motion, this Court ordered that hearings on civil contempt be conducted commencing on April 7, 1980. This Court specified nineteen separate factual issues which would be aired at the hearings, consisting of matters raised by both the plaintiffs and the Special Master. Also included were various areas that had been subjects of an investigation conducted by the Department of Justice. That investigation, undertaken pursuant to an order of this Court, found that probable cause existed in four areas to believe that the Cleveland defendants and their employees were in criminal contempt for failing to comply with orders of the Court. Report of the United States Pursuant to the Court’s Order of April 2, 1979 Concerning Criminal and Civil Contempt, filed November 14, 1979. At the April 1 hearings on the Special Master’s Report of January 31, 1980, the local defendants requested that the separate hearings on civil contempt and the Special Master’s Report be consolidated. Accordingly, the hearings were consolidated and beginning on April 7 and continuing until May 23, 1980 the Court received testimony from twenty-two witnesses, nineteen of whom are or have been members of the Cleveland Board of Education, top administrators of the school system responsible for desegregation implementation or employees of the system. I. A. A review and evaluation of the evidence presented during the hearings on civil contempt and the Special Master’s Report of January 31, 1980 cannot be undertaken without reference to the entirety of the record that has been developed in this case. For the past eight years, this Court has been continually and intimately involved in assessing the conduct of the Cleveland defendants. Additionally, the Court has had numerous opportunities during the trial and other hearings to evaluate the credibility of the defendants. During this time, liability has been established, see Reed v. Rhodes, 422 F.Supp. 708 (N.D.Ohio 1976), aff’d 607 F.2d 714 (6th Cir. 1979), cert. denied, 445 U.S. 935, 100 S.Ct. 1329, 63 L.Ed.2d 770 (1980) and a Remedial Order designed to eliminate the effects of intentional segregative conduct has been issued. See Reed v. Rhodes, 455 F.Supp. 569 (N.D.Ohio 1978), aff’d, 607 F.2d 714 (6th Cir. 1979), cert. denied 445 U.S. 935, 100 S.Ct. 1329, 63 L.Ed.2d 770 (1980). The record that has been amassed in this ongoing litigation is truly staggering. It consists of over 1300 docket entries, countless thousands of pages of court proceedings and hearings before the Special Master, hundreds of transcripts of meetings of the Cleveland Board of Education, hundreds of motions and briefs, numerous reports and memoranda of the Special Master, and voluminous reports from the Office on School Monitoring and Community Relations (“OSMCR”), and from the Cleveland Board of Education on the status of desegregation preparedness and implementation. District Courts are uniquely situated to consider the “very difficult and subtle factual questions” which arise during the course of school desegregation controversies and “to appraise the societal forces at work in the communities where they sit.” Columbus Board of Education v. Penick, 443 U.S. 449, 470-471, 99 S.Ct. 2941, 2983, 61 L.Ed.2d 666 (1979) (Stewart, J., concurring). A careful review of the record in this case, combined with an awareness of the history of this litigation, provide deep insights into the ability and willingness of the Cleveland Board of Education, the Superintendent, and the Deputy Superintendent for Desegregation Implementation to comply with orders of this Court designed to remedy past discriminatory conduct. B. It has been 2VÍ! years since this Court issued a Remedial Order designed to accomplish two major objectives: the reassignment of pupils to fully integrated schools and classrooms, and the establishment of educational programs and other ancillary relief that will correct the effects of prior segregated schooling to the greatest extent possible. During this time, the Cleveland defendants repeatedly have represented to this Court that they are willing to cooperate in bringing about court-ordered desegregation and are taking all of the necessary steps to accomplish this objective. Recognizing that they are legally responsible for ensuring compliance with Court orders, the defendants claim that they “have endeavored to implement the Remedial Order-and other court mandates-with a spirit of willingness and enthusiasm.” Supplemental Response to January 31, 1980 Special Master’s Report, filed March 7, 1980, These expressions of commitment to compliance with Court orders have been made by Superintendent Peter Carlin (Transcript of Hearings on Civil Contempt and the Special Master’s Report of January 31, 1980, 4747, 4771 (Tr. 4747, 4771)). Deputy Superintendent for Desegregation Implementation Margaret Fleming (Tr. 3803, 3886), and the leadership of the Cleveland Board of Education. For example, Board President John Gallagher has stated publicly that one of his major goals is “to facilitate the implementation of a court order to desegregate in a manner that would be educationally sound and yet peaceful and orderly.” This statement according to Mr. Gallagher, is “unequivocally . .. more consistent with most of the views” he has expressed on the matter of desegregation implementation. (Tr. 4536). Mr. Gallagher alluded to a resolution (Tr. 4537) and a speech (Tr. 4538) to indicate his constant support for safe, secure, and efficient desegregation. However, public statements urging the community to remain peaceful cannot be equated with a commitment or willingness to diligently pursue a desegregation remedy. Obviously the safety of students and the elimination of racial violence is of great importance. But safety can never be the sole goal of desegregation. The Court remains firmly committed to the concept of equal educational opportunity as embodied in the Remedial Order. The representations made to this Court concerning the “commitment” to comply with court orders cannot be considered at face value. Public statements outside the limited confines of the courtroom, and ultimately actions undertaken, are important indicia. They reflect, perhaps more accurately, the underlying attitudes which motivate conduct. The public statements of elected school officials in leadership roles are important indicators of the existence of a willingness and readiness to achieve desegregation. Those who exert strong influences on the community through the public forum and their official positions can contribute greatly to the success or failure of the desegregation effort. United States Commission on Civil Rights, Fulfilling the Letter and Spirit of the Law: Desegregation in the Nation’s Public Schools (1976). Despite the representations made to the Court, the public statements of the leadership of the Cleveland Board of Education do not reflect a commitment to comply with court orders. This is apparent in the public statements of various members of the Board of Education. Illustrative are the public statements of Board President John Gallagher which, as he is well aware, have an impact on the community. (Tr. 4441) For the past two years that Mr. Gallagher has been President of the Cleveland Board of Education, he has consistently attacked the legitimacy of the Court and its Remedial Order in the media and at public meetings. For example, the reason given why the Board has been unable to strengthen the educational process “is simply because we have been so battered down by dealings with the Federal Court.” (Tr. 4442-43, The Plain Dealer, September 26,1978). Similarly, while noting his responsibility to “facilitate whatever the Court orders,” Mr. Gallagher stated, “As you know from my voting record, I’m opposed to forced busing to integrate schools.” (Tr. 4444, The Cleveland Press October 25, 1978). This aversion to court-ordered desegregation has been expressed publicly on numerous occasions. Shortly after implementation was ordered for fall of 1979 when an anxious and concerned community awaited the start of school the President of the Board stated: “We were disappointed by the defeat of [the Mottl Amendment which would ban court-ordered busing]. There is a significant possibility that it will be approved in some form in the near future.” (Tr. 4358, The Plain Dealer, July 25, 1979). Perhaps the most inflammatory attack on the Court was the statement that the Federal Court “is not as concerned as the members of this Board and administration [with the safety, of the students].” Transcript of August 9, 1979 meeting of Cleveland Board of Education 17. The public expressions of “commitment” to desegregation have not been limited to direct attacks on the legitimacy of the Court and the constitutional remedy. The Office on School Monitoring and Community Relations (“OSMCR”) funded by the federal government and established by the Court to perform an essential monitoring function, was described as having “carte blanche approval to expend taxpayers’ dollars.” Transcript of February 8, 1979 meeting of Cleveland Board of Education, 234-36. Additionally, publicly expressed views of the certainty of “white flight,” (Tr. 4358-59, The Plain Dealer, July 25, 1979) combined with the refusal to take appropriate preventive steps (Tr. 4577), can in no way be considered as evidence of a commitment to court ordered desegregation. The various public statements of persons in leadership capacities catalogued above do not represent either the scope or breadth of the challenges that have been made to the legitimacy of this Court and its orders. They are but a partial reflection of an attitude that does not approach a real commitment to comply with Court orders. The statements are indicative of a hostility and recalcitrance which has been deeply rooted among the leadership of the Board ever since the commencement of this litigation. The claim that the totality of public pro-announcements over the years reflect a commitment to both the letter and spirit of this Court’s orders is not supportable. In the first place, the record in no way substantiates this position. Instead, the record shows a continuing strategy of creating a public appearance of conflict with the Court, a strategy which is designed for blatantly political ends. However, even if it were true that only a minority of public statements reflect an attitude of non-compliance, a party cannot agree to follow court orders on some occasions and yet deeply attack the Court when it is politically expedient to do so. A few carefully timed and worded statements can serve to inflame or mislead the community and thereby impede a remedy designed to vindicate essential Constitutional rights. This Court, over the years, has had an opportunity to observe and assess the conduct and testimony of the Cleveland defendants. Regrettably, the Court cannot find that the Cleveland defendants are genuinely committed to carrying out the letter and spirit of court orders relating to desegregation. This conclusion is not based merely on the public expressions of the leadership of the Cleveland Board of Education. It finds much more decisive and complete support in the actions of the Cleveland defendants over the past four years. These actions are highly probative of the posture of the defendants regarding compliance with orders of the Court. In instances too numerous to comprehensively detail, the Cleveland defendants have undertaken to frustrate the efficient and orderly implementation of Court orders. The examples which follow are illustrative, not exhaustive. They reveal a system structured and staffed in such a manner that compliance is not attainable and which lacks the decisive affirmative leadership critical to efficient, safe, and educationally-sound implementation of the desegregation orders. 1. Promulgation and Implementation of a Remedial Plan The conduct of the Cleveland defendants in the promulgation and implementation of the Remedial Order illustrates a pattern of procrastination and delay which has served consistently to impede the timely implementation of an effective remedy. This pattern began shortly after liability was established and the Cleveland defendants were ordered to submit a proposed remedial plan by January 18,1977. Their first plan was rejected by the Court because it “in no way could be interpreted to be in compliance with the Court’s Guidelines and Instructions, nor did it even purport to address the scope and extent of the violations found by the Court.” Reed v. Rhodes, 455 F.Supp. 569, 605 (N.D.Ohio), aff’d, 607 F.2d 714 (6th Cir. 1979), cert. denied, 445 U.S. 935, 100 S.Ct. 1329, 63 L.Ed.2d 770 (1980). The defendants’ second proposed plan, together with two amendments thereto, also was found to be unacceptable, since it was “educationally unwise, irresponsible, and administratively and fiscally unsound.” Id. The defendants did not file their final proposed remedial plan until May 13, 1977, “almost four months after the original due date for the submission of a workable plan.” Id. Even then, there were serious deficiencies in the plan submitted. See Special Master’s Recommendations Regarding Defendants’ Proposed Desegregation Plans, filed October 27, 1977. The Cleveland defendants were first ordered to desegregate the school district by Fall 1977, Order of December 7,1976, 2, but desegregation was deferred to Fall, 1978 due to the defendants late submission of a proposed plan and low level of preparedness. See Special Master’s Report on Proceedings of May 27, 1977; Order of August 15, 1978, 2. Again in August, 1978, the Court was forced to defer implementation due to the defendants’ “deplorable lack of preparedness” which “was not inevitable but was a result of the procrastination of defendants and of their failure to adopt, inter alia, suggested long term financial planning to assure full implementation of desegregation per Court order.” Order of August 25, 1978, 1-3; see also Order of August 15, 1978. In numerous other instances the process of implementing the desegregation remedy has been delayed due to action of the Cleveland defendants. For example in August, 1978, the Cleveland defendants submitted a limited desegregation and school closing plan. See Cleveland Defendants’ submission of August 17, 1978. After a hearing, this Court was forced to reject the plan “because it fails to comport with this Court’s August 15, 1978 and February 6, 1978 Orders and because it would severely impair the future of rational and peaceful desegregation.” Order of August 25, 1978, 7. Similarly, in September, 1978, the Cleveland defendants were ordered to implement their own proposed plan for school closings and student reassignments, based on their assurances of their “financial and administrative wherewithal.” Order of September 8, 1978. However, hearings revealed that “the school administration had failed, in all respects, to begin preparing” for implementation of said plan. Order of October 16, 1978. See also Hearings of October 10 and 11, 1978; and OSMCR Report of September 22, 1978. It was not until November, 1978, that the Cleveland defendants finally proposed an acceptable, though partial, implementation schedule for junior high schools. See Order of November 10,1978. However, after this proposed implementation had been approved by the Court, the defendants sought and received a stay from the Court of Appeals for the Sixth Circuit which again delayed implementation. Reed v. Rhodes, Nos. 78-3156, 78-3405, 78-3406 (6th Cir. January 8, 1979). Finally, in July, 1979, after the decisions in Columbus Board of Education v. Penick, 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979) and Dayton Board of Education v. Brinkman, 443 U.S. 526, 99 S.Ct. 2971, 61 L.Ed.2d 720 (1979), and after the failure to implement even limited desegregation or to submit acceptable school closing plans for the 1978-79 school year, the Court adopted an implementation schedule consisting of three phases. This implementation schedule was necessitated because of the Cleveland defendants continuing limitations, especially in the areas of finance and student transportation. See Order of July 30,1979; Special Master’s Report of July 13, 1979. The pattern of delay and procrastination documented in the record is a far cry from the repeated assertions of obedience to the Court’s orders. The “marked lack of enthusiasm for desegregation planning,” Reed v. Rhodes, 455 F.Supp. at 605 evidenced by delays and inadequacies in submissions and rampant unpreparedness, has frustrated judicial decrees designed to remedy Constitutional violations. 2. Administration of Desegregation Planning and Implementation Extensive hearings before the Special Master during the summer of 1977 documented the Cleveland defendants’ lack of expertise and experience needed to undertake the planning and implementation of desegregation. See Special Master’s Report of September 30, 1977. The Court’s concerns about securing individuals with the requisite expertise and experience were expressed on numerous occasions to the Cleveland defendants. However, because the defendants refused to secure the assistance of experts for purposes of fashioning and implementing a desegregation remedy, the Court reluctantly was forced to establish a Department of Desegregation Implementation. Reed v. Rhodes, 455 F.Supp. at 605; Order of December 21, 1977. The Cleveland Board of Education also declined to appoint a Deputy to run the new department, and with the exception of one member, also declined to submit names of candidates for the position. Reed v. Rhodes, 455 F.Supp. at 606. Subsequently, Dr. Charles Leftwich was appointed as Deputy Superintendent for Desegregation Implementation. Order of March 7,1978. Dr. Leftwich, who had extensive experience and expertise in system-wide desegregation planning and implementation, received little support and was generally stymied by a hostile Board of Education and an uncooperative administration. He was labelled an adversary by Superintendent Carlin. Transcript of October 10, 1978 Hearings, 51. His expenditures in the performance of his tasks were subjected to intense and undue scrutiny. During the period Dr. Leftwich was Deputy Superintendent for Desegregation Implementation, the Board of Education rejected contract and consulting requests of only one department, the Department of Desegregation Implementation headed by Dr. Leftwich. See Order of October 27, 1978. The Cleveland Board of Education also failed to provide qualified personnel to assist Dr. Leftwich in carrying out his court ordered duties. Therefore “to assure that desegregation planning goes forward with all due speed” see Recommendations of Special Master, filed April 21, 1978, this Court was required to order the Board of Education to hire seven assistants. Order of April 21, 1978. The uncooperative atmosphere fostered by the Cleveland defendants eventually forced Dr. Leftwich to request this Court to relieve him of his position in October 1978. With the loss of Dr. Leftwich, the Cleveland school system lost the services of a highly competent, dedicated, and experienced desegregation administrator. With the resignation of Dr. Leftwich the Court established procedures to be followed in the appointment of a new Deputy Superintendent. See Order of October 27, 1978. This Court attempted to assist the Board in selecting an able Deputy Superintendent of Desegregation Implementation and spent many hours interviewing candidates. These efforts, however were spurned by Superintendent Carlin and the Board of Education when they nominated Dr. Margaret Fleming, an administrator without any experience whatsoever in desegregation related matters. There is no doubt that the Cleveland School Board and Superintendent Carlin believed Dr. Fleming’s nomination would be rejected when it was submitted to the Court for approval, according to the testimony of Mr. Gallagher. (Tr. 4522). The defendants were well aware that the Court was firmly convinced that “experience in or related to desegregation implementation” was a highly relevant and important criterion for selection of a Deputy Superintendent. See Special Master’s Recommendation of a Deputy Superintendent, filed March 6, 1978. However in the face of strong doubts, the Court did not reject Dr. Fleming’s nomination. Instead, the provision of the Order of October 27, 1978 which required this Court to approve the defendant’s selection of a new Deputy Superintendent was vacated. The Court in no way wished to be seen as “approving” an administrator it felt was not capable of effectively implementing system-wide desegregation. However, the Court also had no interest in tarnishing the reputation of Dr. Fleming by rejecting her nomination, or in delaying further implementation of the remedy. She was appointed with no objection by either the plaintiffs or the government. At the time of Dr. Fleming's appointment as Deputy Superintendent, the Court noted that it would be best for the school system and best for the children if someone were appointed who had expertise and years of experience in desegregation. “However, it is defendants’ responsibility to judge their needs for outside expertise in desegregation. Should implementation stumble or falter for lack of expertise defendants will be held to answer to this Court.” Order of December 15, 1978, 5. The failure to accord any weight to the expertise and experience of key personnel or to suggestions of the Court did not end with Dr. Fleming’s appointment. The staffing of the operational divisions within the Department of Desegregation Implementation following Dr. Fleming’s appointment demonstrates the continued failure of the Cleveland defendants to make personnel decisions designed to achieve substantial compliance with court orders. In both the planning and implementation of Phases I and II, responsibilities in the most critical areas were delegated to persons without relevant desegregation experience or expertise (i. e. transportation, community relations, guidance and career counselling, collaborative programs with educational, business, and cultural institutions, testing and ability groupings, and staff/student development and human relations training). Members of the Board were aware that their key managers did not have desegregation experience (Tr. 4300). They did not however reject any key departmental personnel decisions made by Superintendent Carlin and Deputy Superintendent Fleming (Tr. 4299). Worse still, they acquiesced in the hiring of critical supervisory personnel in transportation and community relations areas who had practically no relevant experience for the job to be filled. The Cleveland defendants conduct in establishing and staffing the Department of Desegregation Implementation does not reflect an underlying commitment to achieve compliance with the Remedial Order. In numerous instances, the defendants have chosen confrontation over compliance. They also have refused to make decisions essential to achieving successful desegregation implementation. 3. Provision of Information on Desegregation Planning and Implementation Status Reports The Court repeatedly has reminded the Cleveland defendants of the self evident need for careful, systematic preparations for effective implementation of the Remedial Order. This requirement was incorporated in the “Basic Guidelines for Planning for the Implementation of the Remedial Orders” adopted by the Court in July, 1979. See Special Master’s Report of July 13, 1979, 2, guideline 5; Order of July 13 1979, adopting said Guidelines. This requirement was incorporated in the Guidelines because the Special Master had found that “defendants’ planning has been a recurring problem,” and the Court had repeatedly found that the Cleveland defendants’ preparations for Remedial Order implementation were deficient. See also OSMCR Reports of September 22, 1978, December 18, 1978, March 16, 1979, June 1979. For example, prior to adoption of the Basic Guidelines by the Court, the Cleveland defendants submitted a number of “progress reports” pursuant to court orders. These “progress reports” related to then-scheduled implementation of a limited desegregation plan in early 1979. OSMCR monitored these reports, and reported a number of serious flaws in the defendants’ reports, including the defendants’ tendency to miss their own task completion deadlines. OSMCR Report of December 18, 1979; see also Special Master’s Report of July 30, 1979, 2. Because the defendants failed to provide a comprehensive planning framework, this Court adopted the status report form recommended by the Special Master. Order of July 30, 1979, adopting the Recommendations of the Special Master on Status Reports, filed same date. In order to achieve careful, systematic preparations for effective implementation of the Remedial Order the Cleveland defendants were required to submit status reports which “set forth the schedule of activities and tasks essential to effective implementation of the Remedial Order.” Special Master’s Report of July 13, 1979, guideline 10. The status report forms were to be completed in accordance with a set of instructions and a schedule established in the Order of July 30, 1979. The Cleveland defendants were advised that the “Status Reports represent the minimum tasks on which Defendants are to report” and therefore defendants were instructed to feel “free to expand the Status Reports to include additional tasks.” Recommendations of the Special Master on Status Reports, filed July 30, 1979, 8. No planned completion date was to be changed by the defendants without prior permission from the Court. Id. at 7. The defendants were responsible for the accuracy of all matters contained in the reports. Id. Notwithstanding the specific language of the adopted recommendations, the Cleveland defendants made unilateral alterations in the language of the task descriptions of the Court-adopted status report forms without court approval. In addition the defendants emasculated the significance and utility of the “Planned Completion Dates” portion of the status reports, which was intended to impose a rigid schedule leading to systematic implementation. This was accomplished by changing the dates without permission of the Court, see, e. g. Tasks D3.25, D3.31, and D5.00 in community relations section; see generally Phase I Status Report of August 6 and subsequent Status Reports filed by the defendants for Phases I and II, or by entering the phrases “and ongoing” or “continuous between [two specified dates]” thereby specifying no specific date by which the tasks could be expected to be completed. See Sections C, D, E, G, H, I, O, P, and Q of Status Reports for Phases I and II. The changes made by the defendants do not represent mere technical alterations designed to improve the exchange of information. In many instances the changes are substantive and serve to modify the obligations imposed by the Court. For example, the Court-approved status report requires the defendants to enter a planned completion date for an activity. This requirement has been changed to the entering of a planned completion date for a plan. See, e. g., Phase I Status Reports, Sections C, D, E, G, M. Similarly, the Cleveland defendants have altered the type of evidence of task completion which is required to be submitted to the Court. See Report and Recommendations of the Special Master, filed August 31, 1979. The alterations in the status reports have significantly reduced their value both to the Cleveland defendants and to the Court. Important information is not provided, and the benefits of structured, programmatic planning are lost. 4. Inaccuracies and Misrepresentations in Submissions to the Court On numerous occasions during this litigation, the Cleveland defendants have supplied the Court with information which is inaccurate or misleading in status reports, direct testimony, and other submissions. The inability of the Court to rely on the defendants’ representations is perhaps the most serious obstacle confronting the Court in its effort to ensure that remedial orders are obeyed. Testimony received during the hearings on civil contempt and the Special Master’s Report of January 31, 1980 demonstrates that important information submitted to the Court in status reports was inaccurate or misleading. The Court was led to believe that specified tasks were being performed in a timely and effective fashion, a belief certainly at variance with the testimony. For example, with regard to student training, the Cleveland defendants and their employees wrote that, “By (October 18, 1979) every school in Phase I had received services.” Responses to Comments of OSMCR Regarding Implementation of Educational Components of the Remedial Order Department of Desegregation Implementation, February 25, 1980, 33. In fact, according to Mr. John Ryan, head of student training, at least 30% of Phase I students had received no basic information by January, 1980. Similarly, Task Q3.10 of the Status Report, relating to the development of a “subplan for a comprehensive pre-implementation course of in-service training” for staff, contained a planned completion date prior to Phase I. This completion date was solely of academic interest since the activities specified under the sub-plan were not carried out prior to Phase I. Another example of inaccurate statements being supplied to the Court occurred prior to Phase I implementation, when the Cleveland defendants assured the Court that, “Virtually all 58 essential pre-implementation tasks (Phase I) have been completed” or “will be finished before student movement is scheduled to commence on September 10, 1979.” Response of the Cleveland Board of Education to Order of August 31, 1979, filed September 4, 1979, 1. However, the evidence elicited during the hearings on civil contempt and the Special Master’s Report of January 31, 1980 revealed this not to be the case. See pp. 379 396 infra; Special Master’s Report of January 31, 1980. In all areas-transportation, community relations, educational components and other ancillary relief-there were serious shortcomings in implementation due to actual failures to complete the pre-implementation tasks either at all or in a timely fashion. Inaccurate or misleading assurances also have been supplied to the Court in the areas of school closings and magnet schools. For example, when the defendants sought to close Kennard and Rawlings Junior High Schools, the Court was assured that the reassignment of students would occur pursuant to the Remedial Order. Motion to Reconsider, August 2, 1979. However, in spite of this assurance, one hundred thirty students were reassigned first to Herrick Junior High School in the Fall of 1979, where due to overcrowding, they were placed in an Annex three miles from the school. See OSMCR Report of November 21,1979; Special Master’s Report of January 31, 1980, 14. A second reassignment of these same students took place in March of 1980 when they were transferred to Joseph Gallagher Junior High School. With regard to magnet schools, the Court was advised that: The Cleveland School System, as documented in the Court-mandated status report, Section F, is committed to the generation of a master plan for magnet school development. The Magnet School Planning Committee’s time line for the generation of this master plan projected January 30, 1980, as the date when the approved master plan would be ready for submission to the Federal Court. Responses to Comments of OSMCR Regarding Implementation of Educational Components of the Remedial Order, February 25, 1980. In fact, the projected date was changed to March 15, 1980, and even then the “Master Plan” did not include magnet proposals beyond 1980; lacked a complete proposed curriculum for the Fall, 1980 magnet schools and was not coordinated with a school closing plan. Cleveland Public Schools Master Plan for Magnet Schools filed March 17, 1980. There are numerous other instances of inaccuracies and misrepresentations contained in pleadings submitted to the Court or in testimony. Perhaps most egregious are the representations regarding transportation made to the Court immediately prior to the start of Phase II during hearings held during the week of March 11-14,1980. The purpose of these hearings was to assess the preparedness of the Cleveland defendants for Phase II desegregation, a purpose rendered more urgent by the Special Master’s Report of January 31, 1980, which found serious shortcomings in the defendants level of preparedness. During these hearings, the defendants and their employees consistently and uniformly represented to the Court that they were prepared to transport students reassigned for Phase II. George Mazzaro, the Business Manager of the Cleveland public school system, assured the Court that, in his professional opinion “the Board (is) prepared to transport the children participating in Phase II in a safe and efficient manner.” Transcript of March 11, 1980 Proceedings, 69-70. Dr. Margaret Fleming, the Deputy Superintendent of Desegregation Implementation, while expressing some minor reservations, testified that “there is a great likelihood that Phase II will be implemented in a safe, efficient, and educationally sound manner.” Id. at 179. Superintendent Peter Carlin also concurred, stating that the school system would be ready to implement Phase II on March 17, 1980. Id. at 537. The State defendants also joined in this assessment. “It is the considered judgment of the State defendants that the Cleveland defendants will be in a position to satisfactorily implement Phase II of the desegregation plan beginning on March 17, 1980. Cleveland’s state of readiness is far superior to that for Phase I. It is not anticipated that major problems will be encountered.” Memorandum of State Board of Education and Superintendent of Public Instruction Re Phase II Readiness, filed February 25, 1980. The evidence presented during the hearings on civil contempt establish conclusively that these representations were false. Both the Cleveland and State defendants were acutely aware of major deficiencies in the transportation area. However, instead of accurately depicting the level of readiness, they chose to mislead the Court and the public. See pp. 380-385 infra. These not infrequent discrepancies between fact and the representations of the Cleveland defendants and their employees raise serious questions about the reliability of the defendants’ submissions and testimony- By delaying the promulgation and implementation of a remedial plan, improperly staffing the Department of Desegregation Implementation, altering and providing inaccurate responses in status reports, and supplying inaccurate or misleading information on numerous occasions, the Cleveland defendants have impeded the orderly, efficient, and educationally sound implementation of Court orders. Of course, these areas do not exhaust the instances in which Court orders were ignored or violated. For example, the Department of Justice found that in four of five instances investigated, there is probable cause to believe that the defendants or their employees have committed criminal contempt. Report of the United States Pursuant to the Court’s Order of April 2, 1979 Concerning Criminal and Civil Contempt (“Report of the United States on Criminal and Civil Contempt”). First, in violation of court orders, black students assigned to Westropp Junior High School were placed in segregated classes for several weeks. Report of the United States on Criminal and Civil Contempt, 77-78; OSMCR Report of March 16, 1979; Special Master’s Report of January 31, 1980, 14. Second, the Cleveland Board of Education failed to submit a Code of Student Rights and Responsibilities on the date specified by the Court, and subsequently submitted an “incomplete” code. Report of the United States on Criminal and Civil Contempt, 33-34; Special Master’s Report of January 31, 1980, 20-22. Third, the reporting relationship between the division head of the Department of Safety and Security was structured in a manner clearly in violation of Court orders. Report of the United States on Criminal and Civil Contempt, 51-52; Special Master’s Report of January 31, 1980, 28; Letter from Business Manager Mazzaro to Wayne Howard, January 29, 1979. Finally, in contravention of a Court order, the responsibilities for identifying, soliciting, and administering federal financial resources were not assumed by the Deputy Superintendent for Desegregation Implementation, and a budget request for additional federal funds for OSMCR was not timely processed by Superintendent Carlin. Report of the United States on Criminal and Civil Contempt of November 14, 1979, 67-77; Special Master’s Report of January 31, 1980, 35. The enormous record developed to date reveals a pattern of resistance, hostility and confrontation clearly contradicting the Cleveland defendants’ assertions of commitment to the letter and spirit of judicial decrees. C. The form of ■ resistance encountered in this case generally is not characterized by outright defiance of Court orders; nor is it discernable by focusing exclusively on public expressions of the defendants. Rather it is much subtler and involves the widespread failure to undertake those actions which will permit or facilitate desegregation. Thus while the Cleveland defendants continually reiterate their “commitment,” they knowingly refuse to provide either the organizational structure or the administrative personnel necessary to carry out the Remedial Order. The result is systemic maladministration, a form of resistance quite different from “standing in the schoolhouse door,” but equally effective in impeding desegregation. Since 1976, when liability first was established, the Court has been extremely concerned about the capacity of the Cleveland school system to plan and implement a system-wide remedy that provided not only for student reassignment but also for the establishment of remedial educational programs and other ancillary relief. This concern was evident in the Remand Opinion of February 6, 1978, which stated: Developments since liability of the defendants was established reveal that the picture of managerial competence, financial soundness, and quality education painted by the defendants was nothing more than sheer fantasy. ... The administrative procedures for determining and implementing educational policies are formless. To the extent they exhibit a design, it is one of lack of managerial skill in administration. Reed v. Rhodes, 455 F.Supp. at 569. Because of the serious structural and managerial problems which plagued the Cleveland public school system the Court was forced to balance two sometimes polar considerations. On one hand a-need existed to implement a desegregation remedy quickly; on the other hand, a need existed to ensure that the remedy was implemented in an efficient, safe, and educationally-sound manner. On a number of occasions the Court has received substantial evidence indicating that the Cleveland defendants were unprepared to successfully reassign students and to implement the remedial programs and ancillary relief in an educationally sound manner. See pp. 369-370 supra. On these occasions, the Court declined to order implementation because the evidence indicated no reasonable likelihood of success. However, the Cleveland defendants have been advised continually that it is their obligation to carry out the Remedial Order in a timely fashion. The Court certainly is aware of the difficulty of desegregating a large urban school system that has intentionally and over a long period of time segregated pupils according to race. The sheer diversity of the areas involved (i. e. transportation, community relations, staff and student development, testing and tracking, guidance and career counselling, remedial educational programs, etc.) underscores the comprehensiveness of the remedy. To successfully implement the remedy, responsible and able administrators must provide decisive leadership in formulating elaborate and effective plans and in supervising implementation. And the organization itself must be structured in a manner that facilitates rather than impedes planning and implementation. Since at least 1977 the Cleveland defendants have known that the school district is structured and staffed in a manner which impedes the efficient, safe and educationally-sound implementation of a desegregation remedy. The Court repeatedly has urged, cajoled and advised the defendants to correct these systemic deficiencies in order to be able to successfully desegregate the system. In addition to the Court, the Special Master and various other outside experts have conducted extensive studies of the fiscal and managerial capabilities of the school district. These reports, detailing numerous deficiencies and outlining corrective recommendations have been delivered to the Cleveland defendants. Subsequent actions by the defendants indicate that they have either incompletely or in a piecemeal fashion considered the findings and adopted the recommendations. There has been a failure to implement reforms necessary to permit substantial compliance with the Remedial Order. In June and July 1977, shortly after liability was established, the Special Master conducted extensive hearings on the proposed remedial plans. Special attention was focused on the ability of the district to plan and implement a system-wide remedy. In a report submitted on September 30, 1977, the Special Master found serious management and fiscal deficiencies which impeded the ability of the district to plan and implement in an effective manner. See Special Master’s Report of September 30, 1977. For example, the Special Master noted that The Cleveland School District has made no long range pupil population projections, conducted no studies regarding efficient utilization of school buildings in the system, made no unified, long range, district wide school closing plans, and relied on incomplete, sketchy, non-cohesive studies in determining the schools to be proposed for closing. Id. at 7. The Special Master also detailed important shortcomings in the financial organization of the district, which have contributed greatly to the present fiscal chaos. Id. at 14, 15. The Special Master was not the sole expert to discover important systemic deficiencies which prevented the system from “delivering” a system-wide remedy. Dr. Walter Garms prepared a report to the Study Group on Racial Isolation in the Public Schools. Dr. Garms’ report detailed a series of organizational and structural weaknesses, including an extremely centralized administrative structure staffed with individual administrators not expert in their jobs, the lack of a management information system, unimaginative and improper computer usage, a general deficiency in planning capabilities, and a financial structure which precludes accurate projections of future costs and revenues. Analysis of the Special Master’s Interim Report and Hearing Transcripts dated October 13, 1977. The fiscal problems confronting the Cleveland Public Schools were the subject of study by Ernst & Ernst conducted pursuant to a Court-ordered review of the managerial and accounting systems of the district. The study confirmed many of the basic flaws in financial management and accounting which had been reported by the Special Master including the absence of a monthly cash flow plan of receipts and expenditures, managerial financial reports, an operationally meaningful budget, control over physical assets of the School District, and of an accounts payable system. Many of the Ernst & Ernst findings also were made by the Senate Education Committee in its June 12,1978, Proposed Senate Education Committee Report: Cleveland City School District Fiscal Problem. The report again noted the lack of administrative ability in the financial management area. Indeed, numerous findings of critical deficiencies are strikingly similar to those contained in the Special Master’s Report of September 30, 1977 issued nearly one year earlier. It is obvious that a modern system of management and administration is required for a school district which controls over a half a billion dollars of assets, has a current annual cash flow in excess of 325 million dollars, currently employs over 10,000 full-time employees and 7,000 part-time employees, and if in the private sector would rank well up in the Fortune 500 list. However, as the Special Master correctly has found, continuing management shortcomings continue to plague the school district and prevent effective managerial control from being exerted. See Special Master’s Report of January 31, 1980, 37-47; Special Master’s Report of July 30, 1979. The testimony presented during the hearings on civil contempt and the Special Master’s Report of January 31, 1980 does not depict an administrative system which is operating efficiently. In operational units of the Department of Desegregation Implementation, duties and responsibilities of key personnel, lines of authority, interdepartmental relationships and the like are either non-existent or not clearly defined. Additionally, the Department of Desegregation Implementation is staffed in important operational areas with managers who can in no way be considered qualified for their positions. These systemic, organizational and managerial deficiencies have been important contributing factors in the failure of planning and implementation in Phases I and II. See pp. 379-395 infra. Testimony received by this Court and the reports by the Special Master and outside experts detailed with great specificity an entire range of problems which prevent the Cleveland School District from exerting effective managerial control. The structural limitation and managerial deficiencies are so serious that they have caused or contributed to grossly inadequate desegregation planning, see, e. g. Special Master’s Report of July 30, 1979, and financial difficulties which are then seized upon by the Cleveland defendants to demonstrate the impossibility of compliance with the Remedial Order. In the face of comprehensive recommendations designed to improve organizational structure and managerial capability, the Cleveland Board of Education and its highest administrative officials have chosen to continue operating the district without substantial change, with the predictable result that the district has not been and is not in a position to comply with the court-ordered desegregation and ensure that implementation is accomplished in an efficient, safe, and educationally-sound manner. The existence of the documented systemic, organizational and managerial deficiencies makes substantial compliance with orders of the Court exceedingly unlikely. In the face of knowledge of these obvious deficiencies which prevent substantial compliance, the conduct of the Cleveland Board of Education in failing to take steps to correct the situation constitutes at best gross negligence and at worst a purposeful, designed attempt to frustrate implementation of this Court’s orders. II The evidence presented during the hearings on civil contempt and the Special Master’s Report of January 31, 1980 focused primarily on the performance of the Cleveland defendants in the areas of transportation, community relations, and educational components and other ancillary relief during Phases I and II. With partial implementation in the Fall of 1979 and a second stage in March 1980, the defendants have had two opportunities to demonstrate in an •empirical manner their ability to administer a system-wide desegregation remedy. Regrettably, the record of accomplishment is dismal; it reflects primarily chaos, inefficiency, and incompetence. With characteristic understatement, even the Cleveland defendants are forced to concede that “there were admittedly shortfalls in the desegregation implementation process.” Response of the Cleveland Board of Education to the Proposed Order of the United States for the Appointment of a Desegregation Administrator, filed June 16, 1980, 2. A. Transportation The first two weeks of Phase II desegregation were “disasters,” according to Dr. Fleming. (Tr. 3836) The scope of the breakdown in transportation which accompanied Phase II implementation was awesome, not only in the number of pupils affected but also in the quantity of systemic failures. While the following description of what actually transpired is most difficult to believe, it reflects the actual preparedness of the Cleveland defendants for Phase II implementation. On the eve of Phase II the Cleveland defendants hastily and unilaterally deferred implementation by one day notwithstanding the fact that the Court had approved the initial date. (Tr. 166, 3631). The reason for the delay was that there was not a sufficient number of buses available. (Tr. 421). Two factors contributed to this shortage: first, until the final days prior to Phase II, the Cleveland defendants actually did not know how many buses were required (Tr. 169, 281); second, many of the buses that were leased were either inoperable (Tr. 174), or not ready for operation. (Tr. 714-19). Even with the delay, Phase II began with an insufficient number of buses. (Tr. 1007, 1018). Of the 233 buses required under Phase II, only 192 were operating on Friday, March 21, the fourth day of Phase II. (Tr. 3626). A large number of the buses which had been leased (approximately thirty of one hundred twenty-five) were inoperable (Tr. 738), and others suffered mechanical failures. (Tr. 711). The result was that on some days approximately 500 students were left on the streets waiting for buses which either never arrived or arrived two to three hours late. (Tr. 3628). As Dr. Fleming described it, there were “late buses galore” and “missed routes.” (Tr. 3628). The lack of an adequate number of buses was not the only glaring failure of the transportation system. Grossly inadequate repair facilities (Tr. 3612) and an inadequate number of trained mechanics insured that broken-down buses would not be returned to service in a timely manner. (Tr. 1018, 1023, 1025). The absence of a preventive maintenance program (Tr. 276, 1032), contributed heavily to a situation where there was no mechanism for controlling foreseeable mechanical difficulties, with the consequence that breakdowns were highly disruptive. The massive failure of the transportation system during Phase II desegregation implementation was the result of the appointment by the Cleveland defendants of an inexperienced, ineffective, and unqualified transportation administrative staff. (Tr. 1018). The administrators and leadership of the Cleveland Board of Education were aware that the transportation system was staffed by administrators and supervisors without experience in operating large transportation systems (Tr. 4149). They also knew that numerous problems in the transportation system had occurred during Phase I. (Tr. 4150). Even the State defendants were aware of the absence of “either the staff or the organizational structure necessary to operate a significant number of school buses.” (Tr. 390). The debacle of Phase II transportation is directly attributable to deficient planning and implementation by the Cleveland defendants. The entire Phase II pre-implementation period revealed the “absence of definitive decision making and direction.” (Tr. 929). The causes of failure are rooted in the conduct of the defendants over the past few years. The conduct consists not only of deliberate and willful violation of remedial orders issued by this Court, but also of decisions which have consistently impeded rather than facilitated desegregation. On December 21, 1977, the Court ordered that the Cleveland Board of Education establish a Department of Desegregation Implementation (“DDI”) to be headed by a Deputy Superintendent for Desegregation Implementation. Among a number of operational units to be included in DDI was one for transportation planning and administration. Under the Order, “The duties of the Deputy Superintendent for Desegregation Implementation shall include, but not be limited to: Planning and administration of transportation as is required under the plan.” Order of December 21,1977, 3. The organization was ordered only after the Court “received substantial evidence relating to the organizational structure needed fully to implement a desegregation plan for the Cleveland Public Schools.” Id. at 2. Despite the clear wording of the December 21,1977 Order, the planning and administration of Phase I and Phase II transportation was under the direct control and supervision of Business Manager George Mazzaro, and transportation services were being operated out of the Business Department. (Tr. 260, 289, 467, 842-43, 909, 3603). Critical decisions regarding key appointments in the transportation area were made by Mr. Mazzaro (Tr. 3578), and the Business Department determined who to hire as transportation consultants. (Tr. 3575). Even though the entire record conclusively establishes that transportation planning and administration was not an operational unit within DDI, various administrators misled the Court by testifying under oath in these proceedings that transportation planning and administration was actually under Dr. Fleming’s control and within DDI. For example, Mr. Mazzaro stated very early in his testimony that as of March 20,1980, Mr. Perry “had overall transportation responsibility directly (sic) to Dr. Fleming for all transportation in the Cleveland Public Schools” (Tr. 509-510). Much later on, Mr. Mazzaro was finally forced to agree that “for Phase II and some part of' Phase I, [he], in fact, [was] the head of transportation for desegregation as well as for overall responsibility of the district.” (Tr. 842-43). Mr. Mazzaro’s testimony, which appears to contain flagrant misrepresentations, misstatements, and inaccuracies, underscores one of the major difficulties which has confronted the Court during the entire process of desegregation implementation. The Cleveland defendants and their employees have frequently been less than candid with the Court. This is evident not only in testimony before the Court but also in submissions which have been made. See pp. 374 376 supra. As a consequence, in an effort to ascertain certain facts the Court has been forced to conduct hearings which should have been avoided. This practice by the Cleveland defendants and their employees has consumed countless hours of this Court’s time and has been dearly paid for by the taxpayers and school children of Cleveland. This practice also casts doubt upon the veracity of other testimony, submissions, and representations made to the Court by the defendants and their employees. The actual organizational location of the Division of Transportation at the commencement of Phase II is readily visible from exhibits and transcripts of other proceedings. On March 22, 1980, in the face of massive chaos, disorganization, and public outcry the Cleveland defendants finally deemed it useful to comply with the Order of December 21, 1977, by transferring the Division of Transportation to DDL The transfer was described in a March 31, 1980 Desegregation Info-Gram, a DDI information.newsletter for school staff (Amicus Exhibit 519): At an emergency meeting on Saturday, March 22, the Board of Education and Superintendent Peter P. Carlin took the following steps in an effort to resolve difficulties in the Division of Transportation: * Mr. Richard Knisely was named Director of the Department of Transportation * Control of the Division of Transportation was moved from the Business Department to the Department of Desegregation Implementation under the direction of Dr. Margaret Fleming, deputy superintendent. It was the understanding of Superintendent Carlin, Board President Gallagher and those present at the March 22, 1980 Board meeting that this transfer represented a change in organizational structure. The transcript of the meeting of the Cleveland Board of Education reads: “The President: Mr. Carlin, Mr. Knisely will be reporting, then to who? “Mr. Carlin: Mr. President, members of the Board, directly to Dr. Margaret Fleming, Deputy Superintendent of Desegregation Implementation. “The President: I see. So then we are now taking transportation and putting it under the complete control of the Department of Desegregation Implementation, unlike the case in the recent weeks? “Mr. Carlin: Yes, Mr. Gallagher, you are correct.” The Court always has viewed the Remedial Order as a comprehensive remedy with various subsidiary, integrally related components. It was the prospect that the transportation of reassigned pupils would fail if planning and delivery functions were not housed within a centralized desegregation department that led this Court, in 1977, to place transportation planning and administration under the direct responsibility of the Deputy Superintendent of Desegregation Implementation. By bifurcating transportation planning and administration, the Cleveland defendants contributed substantially to the disastrous manner in which Phase II transportation was implemented. The Cleveland defendants argue that there is substantial doubt as to the applicability of the Court’s Order of December 21, 1977. This post hoc rationalization is entirel