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ARTHUR v. NYQUIST

April 30, 1976

George ARTHUR et al., Plaintiffs,
v.
Ewald P. NYQUIST, Individually and as Commissioner of Education of the State of New York, et al., Defendants



The opinion of the court was delivered by: CURTIN

CURTIN, Chief Judge.

 INTRODUCTION

 This court's decision in this case comes after a long and arduous journey through a complex lawsuit, in which the plaintiffs charge the defendants with "creating, maintaining, permitting, condoning and perpetuating racially segregated public schools in the City of Buffalo and in the Buffalo Metropolitan area." (Complaint, at 1). Plaintiffs allege a cause of action under 42 U.S.C. § 1981 et seq. *fn1" and the fourteenth amendment to the United States Constitution. *fn2" They seek declaratory and injunctive relief under 28 U.S.C. § 2201 *fn3" and claim jurisdiction in this court under 28 U.S.C. § 1343.

 It hardly needs to be pointed out that the Constitution and the laws do not forbid all types of discrimination. The fourteenth amendment prohibits only discrimination carried out under color of law; private discrimination, however regrettable or reprehensible, is not actionable under it. Civil Rights Cases, 109 U.S. 3, 11 [3 S. Ct. 18, 21, 27 L. Ed. 835, 839] (1883); Shelley v. Kraemer, 334 U.S. 1, 13 [68 S. Ct. 836, 92 L. Ed. 1161, 1180] (1948). This state action requirement presents no obstacle to the plaintiffs' case, since there is no question but that all the defendants are state agencies within the ambit of the fourteenth amendment's protection. See United States v. Texas Education Agency, 467 F.2d 848, 863 (5th Cir. 1972) (en banc); Oliver v. Kalamazoo Board of Education, 368 F. Supp. 143, 157-58 (W.D.Mich.), aff'd 508 F.2d 178 (6th Cir. 1974), cert. denied, 421 U.S. 963 [95 S. Ct. 1950, 44 L. Ed. 2d 449] (1975).

 At this point in the lawsuit, the only question before the court is whether or not any or all of the defendants have acted in such a manner as to segregate the Buffalo Public School System [hereinafter BPSS]. The question of remedy, i.e., what action the court should take if it should find that the BPSS is segregated, is not before the court.

 It should be emphasized that this court sits only as an arbiter of a legal dispute, not as a super-school board. It is this court's duty to safeguard the fourteenth amendment's guarantee of equal protection under the laws for all residents of the United States. The late Judge Murrah's words aptly describe the court's function in this lawsuit:

 
We yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication.
 
Stapleton v. Mitchell, 60 F. Supp. 51, 55 (D.Kan.1945), appeal dismissed, 326 U.S. 690 [66 S. Ct. 172, 90 L. Ed. 406] (1945).

 At the outset, the court gratefully acknowledges the consistently professional cooperation exhibited by all parties to this lawsuit. One of the beneficial consequences of this cooperation was a series of 161 stipulations *fn4" upon which all parties agreed before the trial in this action commenced. This, of course, considerably reduced the burden on this court once the trial actually began.

 The complexity and scope of the issues before the court must not be understated, however. The question presented -- whether or not the defendants intentionally committed segregative acts affecting the Buffalo public schools -- is one that calls forth the strongest of emotions. *fn5" The final written record of this case gives some testimony to its complexity and to the fervor with which it was contested. Pretrial motions and discovery procedures consumed many months; the actual trial lasted ten days, with a transcript running 1,695 pages; parties submitted many pre-trial and post-trial briefs; some 180 exhibits *fn6" were admitted into evidence; and post-trial oral arguments were scheduled to facilitate a clear understanding of the positions and legal arguments of all parties.

 It is, of course, the duty of this court to decide the facts from the evidence placed before it. Correlatively, it is the duty of this court to apply the law as it exists, both in the decisions of the Supreme Court and those of the Second Circuit in which this court sits. After carefully sifting through all the testimony, evidence, and argument, the court is now prepared to apply the applicable law to the facts as it finds them.

 I. THE PARTIES AND THEIR POSITIONS

 This suit was instituted as a class action, with the named individual plaintiffs, black and white parents of public school children in the Buffalo metropolitan area, attempting to represent all others similarly situated. Although a class action is appropriate under Federal Rule of Civil Procedure 23(b)(2), the court believes that since little evidence was presented at trial regarding non-BPSS policies and practices, the certified class should be restricted to parents of children attending Buffalo public schools.

 Also plaintiffs are the Citizens Council for Human Relations, Inc., a non-profit corporation organized under the laws of the State of New York, and the National Association for the Advancement of Colored People, Buffalo branch, organizations which seek, among other things, equal opportunity in education.

 The defendants are Ewald Nyquist, the Commissioner of Education in New York State, The Board of Regents of the State of New York and its individual members [State defendants], Joseph Manch, Superintendent of Schools of the City of Buffalo at the time this suit was brought, and Eugene Reville, the present Superintendent, the Board of Education of the City of Buffalo and its members, the Common Council of the City of Buffalo and its members, and Stanley M. Makowski, Mayor of the City of Buffalo [City defendants].

 Originally, the plaintiffs did not name the individual members of the Board of Education or the Board of Regents. By order of this court dated today, the plaintiffs' motion to amend their complaint to include the individual members of these two Boards as parties defendant was granted.

 The plaintiffs allege that the defendants, by various actions and inactions, have caused the BPSS to become or remain severely segregated. Among the major allegations are segregation of staff, siting and construction of schools so as to promote segregation, manipulation of school district lines, optional zones and transfers for segregative reasons, failure to implement any meaningful integration plan, failure to hire significant numbers of minority group teachers, failure to promote significant numbers of minority individuals to supervisory positions, and failure to fund the proposed new East Side High School. Numerous other actions and inactions are alleged, including segregation of residential areas, and student assignment which incorporated this segregation. As a result of these actions of the defendants, plaintiffs claim that they have been denied the equal protection of the laws guaranteed to all citizens by the fourteenth amendment.

 The City defendants, while acknowledging that many of the schools are racially imbalanced, insist that any imbalances are due to demographic shifts in housing patterns that are beyond their control. In addition, they contend that no affirmative action is required of them by the Constitution to alleviate the imbalances so caused. In adhering to their long-standing neighborhood school policy, which they argue is and has been racially neutral, the City defendants deny that they have violated the plaintiffs' constitutional rights.

 The State defendants likewise admit that widespread segregation exists in the BPSS, but insist that they have done more than is constitutionally required of them to end it. They also disclaim any responsibility for, or power to end, the segregated residential patterns in the City of Buffalo.

 II. THE LAW

 In 1954 the Supreme Court of the United States issued its famous decision in Brown v. Board of Education, 347 U.S. 483 [74 S. Ct. 686, 98 L. Ed. 873] (1954), which declared that laws requiring separate school facilities for blacks and whites -- the separate but equal school doctrine -- were unconstitutional. The Court ruled in that decision that such a system was "inherently unequal", and that such school segregation was a violation of the fourteenth amendment's guarantee of equal protection of the laws. 347 U.S., at 495 [74 S. Ct. at 692, 98 L. Ed. at 881]. Although separate school facilities mandated by statute have long been outlawed in New York State, *fn7" this did not effectively prevent the slow emergence of separate educational facilities, as shown in tables 3 to 7, infra.

 The law to be applied in this case has evolved through a series of Supreme Court and circuit court cases since Brown dealing with school segregation in many cities of our country, both North and South. *fn8" The essential elements, found in Keyes v. School District No. 1, 413 U.S. 189 [93 S. Ct. 2686, 37 L. Ed. 2d 548] (1973), a case which involved the Denver public schools, can be reduced to a series of questions:

 
(1) Have plaintiffs shown that any of the Buffalo public schools are segregated? *fn9"
 
(2) If the answer to the first question is yes, have plaintiffs shown that any of this segregation was brought about or maintained by purposeful or intentional segregative acts by the defendants? *fn10"
 
(3) If question number 2 is answered affirmatively, have plaintiffs shown that a meaningful or substantial portion of the school district was so segregated?

 All parties agree that the Buffalo public schools exhibit severe racial imbalance (City Defendants' Answer, at 2; State Defendants' Answer, at 2), and that "in recent years, the degree of racial isolation in the Buffalo public schools has been increasing." (S-11). The defendants deny, however, that the segregated condition of the BPSS was intentionally or purposefully caused by them. In other words, the defendants argue that the schools are de facto segregated, not de jure segregated. As the Supreme Court has explained in Keyes, "the differentiating factor between de jure segregation and so-called de facto segregation . . . is purpose or intent to segregate." Keyes, supra, 413 U.S. at 208 [93 S. Ct. at 2697, 37 L. Ed. 2d at 563] (emphasis in original).

 In deciding the question of intent, the court is not required to find guilt or innocence, prejudice or evenhandedness, or even "badness" or "goodness" on the part of the defendants. To prove their case, plaintiffs are not required to show that racist motives prompted the defendants, nor even that defendants wanted the schools to be segregated, although proof of either of these would be sufficient to show the required intent. It is enough, as the Second Circuit explained in Hart v. Community School Board, 383 F. Supp. 699 (E.D.N.Y.1974), aff'd 512 F.2d 37 (2d Cir. 1975), to show that the probable and foreseeable result of the defendants' acts was segregation. In Hart, the district court found that the school board had unconstitutionally segregated a school despite the court's specific finding that the school board was not racially motivated. The board appealed this decision. The Second Circuit stated:

 
Unless the Supreme Court speaks to the contrary, we believe that a finding of de jure segregation may be based on actions taken, coupled with omissions made, by governmental authorities which have the natural and foreseeable consequence of causing educational segregation.
 
Hart, supra, 512 F.2d at 50.

 Furthermore, it is not necessary that the plaintiffs prove that the defendants' every action was discriminatory or that no positive action was ever taken by the defendants to promote integration. We are not dealing with absolutes. Isolated actions of constitutionally insignificant effect, whether of a discriminatory nature or such as to avoid or alleviate segregation, are not determinative. If fourteenth amendment rights are being denied, plaintiffs are entitled to relief. United States v. Texas Education Agency, supra, 467 F.2d at 873.

 In this regard, we note the words of the Sixth Circuit in Oliver v. Michigan State Board of Education, 508 F.2d 178 (6th Cir. 1974), cert. denied, 421 U.S. 963 [95 S. Ct. 1950, 44 L. Ed. 2d 449] (1975):

 
When constitutional rights are involved, the issue is seldom whether public officials have acted with evil motives or whether they have consciously plotted with bigotry in their hearts to deprive citizens of the equal protection of the laws. Rather, under the test for de jure segregation, the question is whether a purposeful pattern of segregation has manifested itself over time, despite the fact that individual official actions, considered alone, may not have been taken for segregative purposes and may not have been in themselves constitutionally invalid. . . . Benevolence of motive does not excuse segregative acts.
 
508 F.2d at 182-83 (citations omitted).

 Some of the actions and events considered in this lawsuit occurred before many, or in some cases any, of the present public school children first attended school. The passage of time alone does not wipe the evidentiary slate clean, however. The Supreme Court has stated:

 
. . . We reject any suggestion that remoteness in time has any relevance to the issue of intent. If the actions of school authorities were to any degree motivated by segregative intent and the segregation resulting from those actions continues to exist, the fact of remoteness in time certainly does not make those actions any less "intentional."
 
Keyes, supra, 413 U.S. at 210-11 [93 S. Ct. at 2698, 37 L. Ed. 2d at 564].

 If the plaintiffs prove that some schools were intentionally segregated by the defendants, the court must then decide whether the plaintiffs have shown that a substantial portion of the school district was so segregated. If the plaintiffs have proved that the defendants intentionally segregated a substantial part of the school district, this "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." Keyes, supra, 413 U.S. at 208 [93 S. Ct. at 2697, 37 L. Ed. 2d at 563]. It is then incumbent on the defendants to prove that the other segregated schools are not the consequence of their illegal segregative actions as well. The burden so imposed on the defendants is considerable. Mere reliance on an "allegedly logical, racially neutral" course of action is insufficient. The Supreme Court has explicitly enunciated the standard:

 
[The defendants'] burden is to adduce proof sufficient to support a finding that segregative intent was not among the factors that motivated their actions.
 
Keyes, supra, 413 U.S. at 210 [93 S. Ct. at 2698, 37 L. Ed. 2d at 564]. *fn11" (Emphasis added).

 III. BUFFALO AND ITS PUBLIC SCHOOLS

 Buffalo's growth pattern has been similar to many other large cites of the northeast. Although the physical boundaries of the City of Buffalo have not changed significantly since the middle of the 19th century (PX 260, Pt. II, at 1), the population did not stop growing until a century later in 1950. In the quarter century since, the City has exhibited a steady population decline, due in large part to the familiar suburban migration. *fn12"

 Many immigrants were attracted to Buffalo in the late 1800's, and the City retains strong ethnic concentrations to this day. The black population of Buffalo, negligible around the turn of the century, has grown steadily since World War I, receiving a strong impetus from the economic growth occasioned by the war industries during the 1940's. *fn13" As is typical of northern cities, the older central city has long been the locus of the black population, with movement slowly taking place to other areas of the city over the last two decades. Although some diffusion of black families throughout the 43 square miles of Buffalo has occurred, the number of blacks in suburban areas has been, and is, negligible.

 The segregated nature of Buffalo's suburbs is glaringly evident when area public school districts are compared. The New York State Commission on the Quality, Cost and Financing of Elementary and Secondary Education reported in 1972 that

 
[Buffalo's] surrounding suburbs are severely segregated. Of the 30 Erie County school districts, only six have over 1 per cent nonwhite students. Of these six, the only two districts with significant nonwhite student populations are Buffalo (46.6 per cent) and Lackawanna (19.2 per cent). Akron, with a sizeable Indian population, has the third highest nonwhite population, representing 16 per cent of The total.

 (PX 305, at 4.44). *fn14" (Footnotes omitted). As the City's population has dropped, the minority percentage has correspondingly increased, as shown in the following table. TABLE I POPULATION CITY OF BUFFALO YEARS TOTAL % NON-WHITE 1950 580,132 6.5 1960 532,759 13.8 1970 462,768 21.0

 SOURCE: PX 263, at 5; S-9. At the same time, the BPSS has recorded a similar drop in its pupil population, with an even more striking percentage increase in non-white members,14a as the following table shows. TABLE 2 BPSS STUDENT POPULATION YEARS TOTAL NON-WHITE % NON-WHITE 1966 72,963 25,486 35% 1970 70,300 28,692 40.8% 1973 61,060 27,949 45.8%

 SOURCE: PX 6, at 6.

 The difference in years 1970 and 1973 is illustrative of this phenomenon -- i.e., the population, in absolute numbers, of minority public school children decreased, yet the minority percentage increased. *fn15"

 The population drop is naturally reflected in school attendance figures. During the years 1966 through 1973, only ten of Buffalo's seventy-three elementary schools experienced an increase in enrollment. The rest noted declines ranging from negligible to severe. Total enrollment in those years dropped over 11,000, a percentage decline of approximately 23% from the January 1966 totals. Minority enrollment declined during that period by 525, while majority enrollment dropped by over 10,000 students. *fn16" As of the 1973-1974 school year,16a the BPSS consisted of 77 elementary schools, *fn17" 4 middle and 2 junior high schools, 7 academic and 6 vocational-technical high schools. The pupil population in October 1973 was 61,060, of whom 53.3% were white, and 46.7% were non-white. (S-10). The system has never been under mandate of law to operate a dual system along racial lines. In fact, New York State enacted an anti-segregation law for public schools in 1900. *fn18" Nevertheless, there exists substantial racial imbalance in the public schools. In 1973, 55 out of 77 elementary schools, 5 out of 6 junior and middle schools, and 7 out of 13 high schools were from 80 to 100% majority or minority, as tables 3 through 7 demonstrate. Statistics such as these prompted Commissioner Nyquist to state in April 1972 that "segregation [in the BPSS] is more severe now than it was seven years ago." [S-18(b)]. TABLE 3 ELEMENTARY SCHOOLS 80-100% MINORITY ENROLLMENT (OCT.1973) SCHOOL (GRADES) MINORITY MAJORITY TOTAL 6 (PK-6) 801 (100%) 0 (0%) 801 8 (PK-6) 777 (99.9%) 1 (0.1%) 778 12 (PK-6) 230 (100%) 0 (0%) 230 16 (PK-6) 178 (90%) 19 (10.0%) 197 17 (PK-6) 465 (99.4%) 3 (0.6%) 468 23 (K-5) 697 (91.8%) 62 (8.2%) 759 31 (K-8) 828 (99.2%) 7 (0.8%) 835 Build (former 32) (PK-6) 575 (99.7%) 2 (0.3%) 577 35 (Special) 76 (96.2%) 3 (3.8%) 79 37 (PK-8) 809 (99.9%) 1 (0.1%) 810 39 (PK-6) 927 (100%) 0 (0%) 927 41 (PK-6) 371 (100%) 0 (0%) 371 47 (PK-6) 272 (100%) 0 (0%) 272 48 (PK-5) 396 (99.7%) 1 (0.3%) 397 50 (Special) 99 (100%) 0 (0%) 99 53 (PK-6) 880 (99.9%) 1 (0.1%) 881 59 (K-5) 566 (98.3%) 10 (1.7%) 576 62 (K-7) 712 (92.5%) 58 (7.5%) 770 74 (PK-6) 626 (98.9%) 7 (1.1%) 633 75 (PK-6) 363 (100%) 0 (0%) 363 90 (K-6) 512 (89.3%) 61 (10.7%) 573 93 (K-3) 99 (100%) 0 (0%) 99 SOURCE: PX6 at 13-20 (Statistics); DX 3 (Grades). TABLE 4 ELEMENTARY SCHOOLS 80-100% MAJORITY ENROLLMENT (OCT.1973) SCHOOL MINORITY MAJORITY TOTAL 11 (K-8) 43 (9.8%) 398 (90.2%) 441 18 (K-6) 43 (9.8%) 395 (90.2%) 438 19 (K-8) 70 (11.8%) 523 (88.2%) 593 26 (K-6) 32 (7.9%) 374 (92.1%) 406 27 (K-6) 4 (0.6%) 631 (99.4%) 635 28 (K-6) 70 (11.8%) 522 (88.2%) 592 29 (K-8) 43 (6.0%) 690 (94%) 733 30 (K-6) 13 (6.8%) 177 (93.2%) 190 33 (PK-6) 45 (8.7%) 471 (91.3%) 516 34 (K-5) 38 (13.4%) 245 (86.6%) 283 38 (PK-8) 83 (13.0%) 554 (87.0%) 637 43 (K-8) 27 (2.8%) 920 (97.2%) 947 45 (K-8) 83 (8.9%) 848 (91.1%) 931 49 (K-5) 14 (7.2%) 179 (92.8%) 193 51 (K-6) 40 (9.3%) 388 (90.7%) 428 52 (K-8) 54 (7.8%) 637 (92.2%) 691 60 (K-6) 13 (2.1%) 620 (97.9%) 633 63 (K-8) 86 (15.5%) 469 (84.5%) 555 65 (K-6) 51 (13.4%) 330 (86.6%) 381 66 (K-8) 74 (10.6%) 621 (89.4%) 695 67 (K-8) 44 (6.6%) 626 (93.4%) 670 69 (K-8) 57 (10.6%) 479 (89.4%) 536 70 (K-6) 6 (1.4%) 427 (98.6%) 433 71 (K-6) 63 (18.4%) 279 (81.6%) 342 72 (K-8) 9 (1.1%) 821 (98.9%) 830 77 (PK-8) 114 (15.1%) 640 (84.9%) 754 79 (K-4) 38 (11.9%) 282 (88.1%) 320 80 (K-8) 53 (16.5%) 269 (83.5%) 322 81 (K-8) 87 (12.8%) 595 (87.2%) 682 83 (K-5) 3 (2.3%) 127 (97.7%) 130 84 (Special) 40 (17.9%) 184 (82.1%) 224 86 (K-5) 26 (8.4%) 284 (91.6%) 310 88 (K-4) 4 (3.2%) 125 (96.8%) 129 SOURCE: PX6, at 13-20 (Statistics); DX3 (Grades). TABLE 5 MIDDLE AND JUNIOR HIGH SCHOOLS 80-100% MINORITY-MAJORITY ENROLLMENT (OCT. 1973) SCHOOL MINORITY MAJORITY TOTAL Fillmore 690 (89.0%) 85 (11.0%) 775 Middle Clinton 846 (100%) 0 (0%) 846 Junior Genesee Humboldt 932 (90.9%) 93 (9.1%) 1025 Junior Southside 202 (15.4%) 1107 (84.6%) 1309 Junior Woodlawn 764 (99.6%) 3 (0.4%) 767 Junior SOURCE: PX 6, at 21. TABLE 6 ACADEMIC HIGH SCHOOLS 80-100% MINORITY-MAJORITY ENROLLMENT (OCT. 1973) SCHOOL MINORITY MAJORITY TOTAL East High 1622 (99.0%) 17 (1.0%) 1639 Riverside High 232 (15.1%) 1301 (84.9%) 1533 South Park High 245 (12.7%) 1683 (87.3%) 1928 SOURCE: PX 6, at 22. TABLE 7 VOCATIONAL-TECHNICAL HIGH SCHOOLS 80-100% MINORITY-MAJORITY ENROLLMENT (OCT. 1973) Fosdick-Masten 576 (98.1%) 11 (1.9%) 587 Hutchinson-Central Technical 223 (19.8%) 902 (80.2%) 1125 McKinley 235 (20.3%) 922 (79.7%) 1157 Seneca 222 (20.0%) 891 (80.0%) 1113

 SOURCE: PX 6, at 23.

 [SEE MAP 1 IN ORIGINAL]

 The BPSS exhibits a complex combination of grade structures and feeder patterns. Elementary schools vary from prekindergarten or kindergarten through third, fourth, fifth, sixth, seventh, or eighth grades. Middle schools are fifth through eighth grades, junior high schools, seventh through ninth grades, and high schools ninth through twelfth grades. Depending on the grade structure of the individual elementary school, a child may remain in one grammar school for his complete elementary education, or progress to a second grammar school, a middle school, or a junior high school. For instance, Schools 16, 30 and 38 are all within a matter of blocks of each other on the city's near west side. A child attending School 16, a K-6 school, will proceed to Woodlawn Junior High School and then Grover Cleveland High School, while a child starting out at School 30, another K-6 school, will transfer to School 56 for seventh and eighth grades and then go to Lafayette High School, while a third child at School 38 will remain at that school from kindergarten through eighth grade and then go to Grover Cleveland High School. *fn19" (PX 296, at 26; Record, Vol. VIII, at 21-22).

 As a general rule, *fn20" pupils do not have a choice of elementary schools. They must attend the school in the district *fn21" in which they live. This is also true for the junior high schools, the middle schools and the academic high schools. However, it is not true for the vocational-technical high schools, which accept students from all over the city and have no district lines.

 IV. THE TRIAL

 For purposes of assessing the allegations of the plaintiffs, the court will analyze separately what it considers to be the major issues: East High School, the siting and districting of Woodlawn Junior High, the use of transfers, optional areas and redistricting of attendance zones, the vocationaltechnical high schools, staff segregation, the state integration mandate, and the housing segregation in Buffalo.

 IV-A. EAST HIGH SCHOOL

 There are seven academic high schools in the BPSS. Each of these schools has its own area from which it gets its students. The policy of the Board of Education has been, at least since 1956, that students living in a certain academic high school's district must attend that high school. (S-42). Any deviation from the Board's attendance policy requires authorization from the Office of Pupil Personnel Services, and "may only be granted for hardship, language, and voluntary integration." (S-42). *fn22" The enrollments at the academic high schools as of January 1966 and October 1973 are shown in Table 8 below. TABLE 8 ACADEMIC HIGH SCHOOL ENROLLMENTS 1966 and 1973 TOTAL SCHOOLS JAN.1966 MAJORITY MINORITY Bennett 2050 1494 (72.9%) 556 (27.1%) East 1818 157 (8.6%) 1661 (91.4%) Grover Cleveland 1453 1289 (88.7%) 164 (11.3%) Kensington 1999 1959 (98%) 40 (2%) Lafayette 1522 1257 (82.6%) 265 (17.4%) Riverside 1830 1804 (98.6%) 26 (1.4%) South Park 2649 2494 (94.1%) 155 (5.9%) TOTAL OCT.1973 Bennett 1606 899 (56%) 707 (44%) East 1639 17 (1%) 1622 (99%) Grover Cleveland 1139 674 (59.2%) 465 (40.8%) Kensington 1923 1093 (56.8%) 830 (43.2%) Lafayette 1152 664 (57.6%) 488 (42.4%) Riverside 1533 1301 (84.9%) 232 (15.1%) South Park 1928 1683 (87.3%) 245 (12.7%)

 SOURCE: PX 6, at 22.

 Although the outer boundaries of the BPSS have remained static for many years, the individual high school district lines that govern attendance zones have been altered many times. East High School is among those schools that have been redistricted.

 Plaintiffs charge that through redistricting and language transfers, the defendants have increased and maintained the racial segregation at East High School. In assessing the evidence, this court is cognizant that "what is or is not a segregated school will necessarily depend on the facts of each particular case." Keyes, supra, 413 U.S. at 196 [93 S. Ct. at 2691, 37 L. Ed. 2d at 556].

 1. REDISTRICTING

 The stipulations indicate the following facts with regard to the redistricting of East High School:

 
1. The Board in May 1954 adjusted the East district so that students residing in an optional *fn23" area in the eastern sector of the district would thereafter not be given the option of attending East. The students in this optional area were "practically all white." (S-151).
 
2. Another district adjustment by the Board at this time extended the East district further south. The result of this was that some black students were required to go to East instead of the predominantly white South Park High School. (S-152).
 
3. Three years later, in May of 1957, another redistricting for East was authorized by the Board. This changed an area *fn24" then optional to Grover Cleveland, Bennett and Lafayette High Schools to East's district. Most of the students in this formerly optional area are black. (S-153).
 
4. At that same Board meeting, graduates of School 43 were assigned to South Park High School. School 43 students were predominantly white and the school was just as close to East as to South Park. (S-154-156).

 The redistricting testimony at trial was not extensive, but it did flesh out the bare bones of the stipulations. S-151 and 154-156, paragraphs one and four, supra, deal with the same area, commonly referred to as the "Lovejoy" or "School 43" area. See Map 2, infra. As of 1950, this section was part of the East High district. In July of 1951, it was declared an optional district, providing students residing in that area the choice of attending either East High on the west, or Kensington High on the north. In 1954, as paragraph one explains, the Lovejoy district was made a part of the Kensington High district. Three years later, in 1957, the students in the district were transferred to South Park High, as indicated in paragraph four, supra. Finally, in 1961, the Board reassigned this area to Kensington High. (Record, Vol. VII, at 103-105). The evidence indicates that this area has always been overwhelmingly white (PX 290; 291), and that it "is either closer to East High School -- or at least equidistant to -- than South Park." (S-156).

 [SEE MAP 2 IN ORIGINAL]

 This redistricting of East High School, which resulted in the largely white Lovejoy neighborhood being excised from the East district, must be considered in conjunction with the language transfer policy in effect from 1960-1972.

 2. LANGUAGE TRANSFERS

 The language transfer exception was designed to allow a student to take advantage of a particular language curriculum that his district school did not offer. This special exception injects additional flexibility into an academic high school system already quite accommodating of students' language pursuits, since Board policy is to offer language courses "in each high school if there are [sic] a sufficient number of students who express a bonafide interest in taking such language." (S-46). Testimony at trial indicated that the minimum number of students required by the Board is fifteen. (Record, Vol. III, at 195-96).

 Certain languages, such as Spanish, French and Latin, are apparently taught at all the academic high schools. Polish, Italian, Hebrew and Russian, however, the socalled "special languages," are restricted to selected high schools. (PX 264, at 545). A course in Polish was taught at East High School until about 1960, but, of the seven academic high schools, only East had none of these special language courses from approximately 1960 to 1972. (S-53, 54; PX 264, at 545; Record, Vol. IV, at 75).

 The evidence shows that sometime in the early 1950's East High School was predominantly white. (Record, Vol. I, at 102). Although in 1970 the East High district had become approximately 60% black (PX 264, at 547), the court takes judicial notice of the well known fact, not disputed by the defendants, that the East High School district had long been, and still was in the 1950's and 1960's, populated by substantial numbers of persons of Polish extraction. Many Polish-Americans still live there. If there was any district in the Buffalo school system where a demand for Polish language classes existed, it was the East High School district and the Board of Education was well aware of this. *fn25"

 It is not only a clearly foreseeable and natural consequence that curtailment of the language classes at East would induce transfers to other high schools, it is obvious that this result would occur. The evidence produced at trial corroborated this. Plaintiffs proved that many East district students obtained language transfers to study one of these special languages at another public high school, usually South Park or Kensington Highs. All of these transfers had to be authorized by the Student Personnel Services Office. They caused annual headaches for that office, which was inundated with transfer requests prior to the start of each school year.

 As the following testimony of the head of the Student Personnel Services indicates, this situation was made known to the Superintendent of Schools.

 
Q. Did you at anytime recommend to the Superintendent or to the Board of Education or to anyone that the languages that these students were asking to take be offered at East High School?
 
A. Yes, I did. In fact, we constantly did. . . . So constantly we brought to the Superintendent's attention maybe these languages should all be put into East High School.
 
Q. When would you recall that you first made that recommendation?
 
A. Probably every year. Probably every year.
 
Q. Every year. Would that be every year from 1965 when you assumed your position?
 
A. Probably. Probably, yes.
 
(Record, Vol. III, at 201-202).

 The language transfers out of East were called to the Board's and to the Superintendent's attention by others also. At a Board meeting on May 26, 1971, Superintendent Manch was specifically informed that South Park High School alone had 143 out of district students, "generally from the East High School district," studying Polish and Russian. (PX 60, at 88-89). The possibility that language transfers were contributing to East's predominantly black enrollment was raised as early as 1963 in a report by the Civil Rights Commission of the United States. (PX 10, at 18). Noting that East High at that time was predominantly black, though the East district was not, the report suggested that language transfers were possibly being used by white students to transfer out of East.

 The report pointed out the curious result of a 1957 adjustment in the Riverside High-Bennett High boundary. The area assigned to Riverside, previously optional between Riverside and Bennett, contained a substantial Jewish population. Shortly after this change was made, the Board of Education became aware that significant numbers of the new Riverside High students were transferring back to Bennett to take Hebrew.To avoid this, the Board instituted Hebrew classes at Riverside High School. (PX 10, at 17-18). The Board could have instituted the same policy with regard to East and the Polish language classes to avoid the transfers out of East High. That they did not is an indication that they did not want to.

 The difficulty that the Board's transfer policy caused only serves to highlight the Board's attitude. When dealing with a system of seven academic high schools, it is inevitable that an action taken regarding one school's attendance policies will have a reaction on other schools. The language transfers out of East High for Polish and Russian contributed substantially to severe overcrowding at South Park High, and the Board was aware of this. (PX 60, at 64-67; 88-89). A past president of the Board, Mr. Arnold Gardner, testified that

 
from time to time this [language transfers] arose at the Board. I would say it arose and received brief attention on only a few occasions. It was one of those items with which we are all familiar. It was one of those items that people mention and drop because they are embarrassed by it and from time to time it would be proposed that Polish be offered at East High School and there would be a series of knowing smiles around the table and after a moment's discussion, that would be abandoned.
 
(Record, Vol. I, at 147).

 It cannot be disputed that East is now, and has been at least since 1960, an unidentifiably black school. *fn26" The Board attempts to rebut the plaintiffs' allegations that the Board caused East to become predominantly black by showing that the residential tracts surrounding East have become progressively more black as the years have passed. *fn27" While it is certainly true that the East district population has exhibited a substantial shift from predominantly white to predominantly black, nonetheless, even in 1973 the minority district percentage was only about 60%, while East High was 99% minority -- and had been over 90% minority for at least eight years. See Table 8, supra. It is obvious to the court that more than mere demographics caused this drastic effect. In 1966 East was already the black academic high school, with a student body 91.4% minority. By comparison at that time, Bennett stood at 73% majority, Lafayette at 83% majority, Grover at 89% majority, and Kensington, Riverside and South Park High Schools all over 90% majority. Id. Almost three out of every five black academic high school students in 1966 attended East High. (PX 6, at 5). *fn28"

 The Board admits that the language transfer policy contributed, in some degree, to East's racial imbalance. Furthermore, the head of the Student Personnel Services admitted, both on redirect and recross examination, that he believed that in many cases the language transfers were used to avoid attending East High School. (Record, Vol. VIII, at 101, 105). He also testified that there was no procedure whereby the central school administration monitored the transferring students to check whether or not they actually attended the requested language courses. (Record, Vol. VIII, at 90-91). However, the Board denies that its language transfer policy was a substantial causative factor of East High's imbalance. The first hard statistics on the racial effect of transfers were not available until 1966. The following table shows the numbers of transfers, including language transfers, granted at East since that year. TABLE 9 TRANSFERS FROM EAST HIGH TOTAL MAJORITY TRANSFERS MINORITY TRANSFERS YEAR ENROLLMENT ENROLLMENT GRANTED ENROLLMENT GRANTED 1966 1818 180 (9.9%) 73 1638 (90.1%) 39 1967 1814 112 (6.2%) 109 1702 (93.8%) 74 1968 1599 42 (2.7%) 129 1557 (97.3%) 91 1969 1696 27 (1.6%) 87 1669 (98.4%) 112 1970 1710 24 (1.4%) 176 1686 (98.6%) 114 1971 1343 2 (.2%) 51 1341 (99.8%) 102 1972 1393 23 (1.7%) 9 1370 (98.3%) 7 1973 1638 23 (1.4%) 2 1615 (98.6%) 6

 SOURCE: DX 8.

 The City defendants argue:

  
How can such a racially imbalanced school, 90.1% black, in 1966, have been substantially affected by a policy that had no known racial impact on said school until some two years later?
  
Post-trial Brief for City Defendants, at 22.

  The court finds this logic difficult to follow. Merely because cold raw data on the racial effect of transfers was unavailable prior to 1966 does not mean that this racial effect was not discernible prior to this date. The Board was aware that language transfers could produce this effect, as shown by the Riverside-Bennett experience; it was warned that it was producing this effect in 1963; and it was obviously cognizant that East High's district contained many Polish speaking families. East was the only high school that offered no foreign languages from 1960 to 1972.

  A brief examination of Table 9, supra, indicates that the segregative effect of transfers out of East, including language transfers, was substantial during those years, and from all the evidence the court can infer that it was substantial prior to those years. In 1967, as Table 9 shows, 112 majority students attended East while almost as many, 109, transferred. In 1968, only 42 white students attended while 129 transferred. In 1969, 27 attended and 87 transferred; and in 1970, 24 attended while 176 transferred. Although Table 9, supra, does not indicate the percentage of transfers granted for language study, it was admitted that as of October 1972, 197 white students from East High's district were studying languages at South Park. (S-56).

  In addition to what these stark numbers show in terms of an annual effect, there is a certain cumulative impact to consider, since each student who transfers can remain at the transferee school for the duration of his high school career. That there were no definite statistics available prior to 1966 does not prohibit this court from concluding, in light of all the circumstantial evidence, that the language transfer device produced a substantial adverse racial impact on East High School before 1966.

  On July 6, 1972 the Board ordered that a full range of foreign languages be offered at East High, and that no more language transfers out of East be permitted. (S-58). At trial, the Board of Education introduced evidence tending to show that in 1972-73, the first school year that language transfers were ended, most of the white students who should have attended East High School did not. *fn29" Since these East district residents could not avoid East through the language transfer device, the Board suggests that other subterfuges, such as false addresses, were apparently devised to thwart the Board's attendance policy. The essence of the Board's defense is that nothing the Board of Education or the City could do would force white students to attend East High School. *fn30"

  It is no excuse for the Board to say that whites shunned the school in 1972 after the Board had aided, abetted and helped to cause the attitudes that prompted this "white flight" from East High. Neither the Board of Education nor the City Council, nor even the Commissioner of Education can in candor deny that they had knowledge that East was becoming identifiably black throughout the late 1950's and early 1960's. The possibility that language transfer out of East was leading to East's racial imbalance was raised as early as 1962, and this problem was repeatedly called to the attention of the Board and the Superintendent of Schools. For the Board to argue that when it ended the language transfers in 1972, no effect on the racial imbalance at East High School resulted, puts its good faith in question. The language transfers encouraged the concentration of minorities in one out of the seven academic high schools.

  Finally, the Board argues that the stipulations which the Board agreed to and the evidence regarding the redistricting of East are so lacking in detail that they are void of evidentiary value, and that any increase in the minority population at East at the time of the redistricting could only have served to integrate that school. Even assuming that the Board is correct on the redistricting evidence, the deletion of special languages from the East curriculum in 1960 and the subsequent language transfers effectively nullified whatever integration had been achieved.

  The racial impact of the language program was clearly foreseeable. In addition, and more important, the failure of the Board to amend this policy when it was obviously aware of its segregative impact is indicative that the Board intended that that segregative effect continue.

  IV-B. WOODLAWN JUNIOR HIGH SCHOOL

  The siting and districting of Woodlawn Junior High School, hotly debated issues for nearly two decades, are alleged by plaintiffs as clear examples of purposeful racial segregation. The City defendants argue that economic and demographic considerations required the North Masten District site on Woodlawn Avenue, and that the racial makeup of the school was the inevitable result of residential patterns beyond their control. It is uncontested that the school has been nearly all black throughout its twelve-year existence. [S-24(b)].

  The Masten District experienced a great influx of population during the 1950's, due in substantial part to the Ellicott District Redevelopment which resulted in the relocation of many black families in the Masten District. As a consequence, severe overcrowding of the public elementary schools in that area of the city occurred. (PX 34, at 28-29; PX 124, at 36). *fn31" Consistent with a previously devised master plan for junior high schools, the decision was made to construct a junior high to alleviate the situation. (PX 32, at 537-8).

  Several sites were considered for the new school, but apparently only two were given serious consideration by the Board and the Common Council. The first was the area of Northland, Purdy and Alexander Streets; the second, on Woodlawn Avenue, was the old Offermann Stadium, the home of the City's minor league baseball team. Both of these sites are in the North Masten district. See Map 3, infra.

  [SEE MAP 3 IN ORIGINAL]

  Controversy raged in 1958 over the site selection, with some citizens arguing that the Offermann Stadium-Woodlawn Avenue site would inevitably lead to an all black school.In a Board meeting December 10, 1958, concerned citizens presented their views. Among those who spoke against the Woodlawn Avenue site was Mr. Frank Caldwell, representing a committee of citizens, who urged that the school be constructed in a site conducive to an integrated facility:

  
We do staunchly urge that this Board . . . commence right now to accept the fact that residential segregation creates an educational problem, which must be faced by this Board.
  
(PX 32, at 537).

  The then Chairman of the Board, Paschal Rubino, stated that the Board had never considered race in its decisions, that it always considered only the needs of the City's children, and that "frankly, some of the apprehensiveness that exists at this point by your group, has never been a consideration of this Board." (Id., at 537). Mr. Caldwell replied: "That is the basis of our complaint." (Id.)

  In addition to Superintendent Manch and Mr. Rubino, the late Councilwoman for the Masten District, Cora Maloney, and two local ward supervisors, Mr. Delmar Mitchell and Mr. F. Cecil Brown, among others, spoke in favor of the Woodlawn Avenue site. (Id. at 5383-84, 5393). These proponents of the Woodlawn Avenue site, all leaders in the black community, expressed reservations, but finally agreed for the reasons stated by Mrs. Maloney:

  
I wish that it could be at a different place, but if it can not be at a different place than the Offermann Stadium, and the children must have education, and the children are the innocent victims because the adults have situated and located there, then I rise or fall by the children of the Masten District. (Id. at 5371-2).

  The Board voted unanimously to recommend the Offermann Stadium-Woodlawn Avenue site, and the Common Council, on Mrs. Maloney's resolution, unanimously approved it. Chief among the reasons cited by the Board were demographic changes -- "We must build schools where there are children. There is no other way you can approach it," (Rubino, Id., at 5374), and economic forces -- fewer families would be displaced; lost property taxes would be much less; time of construction would be considerably shorter; site acquisition costs would be lower. (PX 34, at 29).

  There was evidence tending to show that this siting of the new junior high school guaranteed that it would be segregated because potential feeder schools mentioned at that time were predominantly black. But influential black leaders, like Mrs. Maloney, Mr. Mitchell and Mr. Brown, who supported the Woodlawn site, apparently were convinced that regardless of the difficulties the site presented, the possibility of an integrated school was not foreclosed. As the court's discussion of the districting of Woodlawn shows, infra, the statements of Board members and the Superintendent encouraged their belief that the school would be integrated. They also apparently considered that economic and demographic reasons were sufficiently compelling to accept the Woodlawn Avenue site.

  Although it is a close question, it is the court's opinion that this conflicting evidence is not sufficient to show racially segregative intent on the part of the City or the State defendants with respect to the siting of the Woodlawn Junior High School. As the court weighs the evidence, the siting of the school on Woodlawn Avenue was not a virtual guarantee of segregation, and it cannot be said "that the natural, probable, and foreseeable result of public officials' action or inaction was an increase or perpetuation of public school segregation." Oliver v. Michigan State Board of Education, supra, 508 F.2d, at 182.

  However, the same conclusion cannot be reached with regard to the districting decision that was made six years after the siting. During the debate on the site selection for Woodlawn, the following statements were made concerning the possible configuration of the school's attendance zone:

  MR. RAND, a Board member:

  
Now, that particular site [Woodlawn Avenue site] is nearer to the center of that area, which I think is made up of not just one race or one group -- it's quite an all embracing area, particularly the area stretching on the other side of Main Street, *fn32" so that is another matter.
  
(PX 32, at 5375).

  SUPERINTENDENT MANCH:

  
Now, it is not unlikely -- let me say it in that way, it is not unlikely that by placing the school in the Offermann site [Woodlawn Avenue], rather than the original site proposed, we may have a more integrated situation than would have been possible with the other arrangement, simply because the school is now suggested in a place a little bit further west -- practically at Main Street, you might say. (Id., at 5378).
  
We have no intention of being part of any movement to create a so-called segregated school, and that we would be conscious of this and do everything possible to make it a school which would be as integrated as the schools in that particular area can be. (Id., at 5379).

  The Civil Rights Commission Report in 1963 stated:

  
Dr. Manch holds out hope that Woodlawn Junior High School will be an integrated school. "The zone will cross Main Street if I have anything to say about it," he declares.
  
(PX 10, at 41).

   *fn33"

  In a June 1962 letter, *fn34" Superintendent Manch had stated:

  
A careful study precedes any establishment of new school districts or redistricting of school boundaries to be certain that the best possible pattern of integration may be effected despite the difficult problems which may be posed by housing. (PX 10, at 74).

  Six years after the siting decision, push came to shove, as it were. After years of theorizing and analyzing, a final decision on the new school's attendance zone had to be made. The Board provided the forum for citizens to express their opinions, and heated public discussion occurred. Several districting proposals were bandied about by various Board members, the effects of which were racial ratios ranging from almost exclusively black to a 64-36 white majority. (Record, Vol. III, at 174). In addition, an alternative plan was proposed by which Lafayette High School would be utilized for the new junior high, and the new facility on Woodlawn would be used as a high school. [S-26(c); PX 34, at 1].

  Board consideration of the districting question stretched over several meetings. Among the topics discussed at those meetings was the fact that between the date of the site selection in 1958 and the Board discussion of districting in 1964, the State Board of Regents had announced its policy on integration in the public schools of New York State. (PX 28, pt. II, at 11-12).

  At a Board meeting February 26, 1964, Superintendent Manch read to the Board a statement that then Commissioner of Education James Allen had made October 28, 1963:

  
As a matter of policy, the State Education Department believes de facto segregation to be a detriment to the provision of equal educational opportunity. The Department further fervantly [sic] hopes that local authorities will deal with the elimination of de facto segregation, that the responsibility will be accepted at the local level. . . . Therefore, if appropriate local action is not forthcoming, if adequate plans are not made and actively pursued by local authorities, the state, in faithfulness to its responsibility, will have no choice but to act to move to fill the vacuum created by inertia or postponement in the exercise of local responsibility.
  
(PX 122, at 22-23).

  One month later, referring to the Commissioner's statement, Dr. Manch told the Board members:

  
At no time did he [Commissioner Allen] term these statements "mandates" but they were interpreted as such throughout the state. Indicative of this, most of the large cities have ...

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