IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

OLIVER BROWN, et al.,

Plaintiffs,

and

CHARLES and KIMBERLY SMITH, minor children, by their rrother and next friend, LINDA BROWN SMITH, et al.,

Intervening Plaintiffs,

vs.

BOARD OF EDUCATION OF 'IOPEKA, SHAWNEE COUNTY, KANSAS, et al.,

Defendants.

Case No. T-3l6

JUDGMENT
This action carne to trial before the Court. The Issues have been tried and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that plaintiffs' claims for relief be and are hereby denied.
IT IS FURTHER ORDERED AND ADJUDGED that the plaintiff take nothing, and that the defendants Board of Education of Topeka, Shawnee County , Kansas, Dorothy Groesbeck, Kay Groneman, Ruthann Oelsner, Dale Carey, Ann Keener, Marilyn Harwood, Theodore Von Fange, Jim Hiebert, Denise Apt., and Evelyn Whitcomb, Members of the State of Kansas Board of Education, all of their official capacities recover of the Intervening Plaintiffs Charles and Kimberly Smith, minor children, by their Mother and Next Friend, Linda BrONn Smith, Danielle Threatt, a minor child, by her Mother and Next Friend, Juda Gaines, Shawn, Tanya and Tara Woods, minor children, by their Mother and Next Friend,

Joyce Woods, Cordellia Mitchell and Connie Maxwell, minor children, by their Mother and Next Friend, Barbara Mitchell, Arlene Jackson, a minor child, by her Mother and Next Friend, Charlene Burkes, Carlesia and Cheryl Robinson, minor children, by their Mother and Next Friend, Patricia Robinson, Rufus D. and Michelle Kelley, minor children, by their Father and Next Friend, Rufus Kelley, John, Jackie, Johnny and Viola Davis minor children, by their Mother and Next Friend, Ruby Davis, their costs of action.
RALPH L. DelDACH Clerk
April 9, 1987 Date
ENTERED ON THE DOCKET April 9, 1987

 </s> 671 F.Supp. 1290 (1987)
Oliver BROWN, et al., Plaintiffs, and
Charles and Kimberly Smith, minor children, by their mother and next friend, Linda Brown Smith, et al., Intervening Plaintiffs, v.
BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS, et al., Defendants.
No. T-316.
United States District Court, D. Kansas.
April 9, 1987.
Richard E. Jones, Charles Scott, Jr., Topeka, Kan., Christopher A. Hansen, New York City, for plaintiffs.
1291 *1291 Gary Sebelius, Charles McAtee, Topeka, Kan., for defendant USD # 501.
Dan Biles, Overland Park, Kan., Carl Gallagher, Asst. Atty. Gen., Topeka, Kan., for defendant Members of the State Bd. of Educ.
MEMORANDUM AND ORDER
ROGERS, District Judge.
I. Introduction.
In 1954, the Supreme Court's landmark decision in this case signaled the close of a disgraceful period of de jure segregation in schools of Topeka, Kansas and other parts of the nation. This case has returned to this court for a trial to determine whether the vestiges of de jure segregation have been eliminated. The trial was conducted from October 6, 1986 to October 31, 1986. Post-trial briefs were filed in December, 1986. Reply briefs followed on January 28, 1987. The court is now prepared to issue the following findings of fact and conclusions of law.
II. History of the Case.
This case started in 1951 as a class action challenging a state statute which gave the defendant Board of Education of Topeka, Shawnee County, the power to organize separate schools for black and white elementary students, grades one through six. At that time, there were eighteen white elementary schools and four black elementary schools. White students were assigned to the schools on the basis of neighborhood districts. No transportation was afforded white students. Transportation to the black schools was provided by the Board of Education. Students could attend the black school of their choice. In practical effect, one of the original plaintiffs, Oliver Brown, was suing for the right to have his daughter, Linda, attend a neighborhood white school instead of taking a bus to a black school.
The State of Kansas intervened in the trial to defend the constitutionality of the state legislation authorizing elementary school segregation at the option of school boards in cities of the first class. The trial court, on August 3, 1951, refused to "substitute our own views for the declared law by the Supreme Court" and upheld the constitutionality of state-authorized segregation in Topeka's public elementary schools. 98 F.Supp. 797, 798.
The Supreme Court accepted the trial court's finding that the physical facilities of white and black schools in Topeka and other "tangible" factors were equal, but concluded that "in the field of public education the doctrine of `separate but equal' has no place." 347 U.S. 483, 495, 74 S.Ct. 686, 692, 98 L.Ed. 873 (1954). This finding was

based on the conclusion that separating children "from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." 347 U.S. at 494, 74 S.Ct. at 691.
At the close of the Court's opinion, reargument was ordered on the question of relief. One year later, in May 1955, the Court noted that "substantial progress" in the elimination of racial discrimination in public schools had been made in Kansas. 349 U.S. 294, 299, 75 S.Ct. 753, 755, 99 L.Ed. 1083. The case was then remanded to the U.S. District Court of Kansas to fashion and effectuate such an equitable decree as was "necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases." 349 U.S. at 301, 75 S.Ct. at 757. The Court noted that: "Traditionally, equity had been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs." 349 U.S. at 300, 75 S.Ct. at 756.
Following the remand of this case from the Supreme Court, the district court considered a remedial decree submitted by the Board of Education. The "central principle" of the decree, as described by the district court, was that children, regardless of color, would attend the school in the district of their residence. 139 F.Supp. 468, 469 1292 (S.D.Kan.1955). Addressing the concern *1292 that some all-black schools remained under the Board's plan, the court stated:
Desegregation does not mean that there must be intermingling of the races in all school districts. It means only that they may not be prevented from intermingling or going to school together because of race or color.
If it is a fact, as we understand it is, with respect to Buchanan School that the district is inhabited entirely by colored students, no violation of any constitutional right results because they are compelled to attend the school in the district in which they live.
It is the conclusion of the court that while complete desegregation has not been accomplished in the Topeka School System, a good faith effort toward that end has been made and that, therefore, the plan adopted by the Board of Education of the City of Topeka be approved as a good faith beginning to bring about complete desegregation.
139 F.Supp. at 470.
No appeal was taken from the district court's order. This case remained inactive until 1979 when a new group of parents with school children in Topeka's public schools were permitted to intervene. The new plaintiffs charge that the mandate to desegregate Topeka's schools has never been completed. After a long process of discovery and the consideration of pretrial motions, the trial of this case was accomplished.
III. The Parties.
The new named plaintiffs in this case are a group of parents with black children attending various schools in Unified School District # 501. In place of the Board of Education of Topeka, Shawnee County, Kansas, Unified School District (U.S.D.) # 501 has been named a defendant. In 1965, by a state statute unifying school districts across Kansas, U.S.D. # 501 was designated as the successor to Topeka Public Schools No. 23, the district served by the original defendant Board of Education. U.S.D. # 501 includes public schools in the same area concerned in the original complaint plus substantial additional territory annexed by the City of Topeka since this case was filed. Prior to the creation of U.S.D. # 501, the boundaries of Topeka Public Schools No. 23 grew with the city limits of Topeka. The boundaries of U.S.D. # 501 and the city limits are no longer coterminous. There are three other school districts in areas outlying Topeka, Kansas. These districts are not parties to this action.
The State Board of Education (SBE) is a party defendant in this case. It was created by state constitutional amendment in 1966. The SBE became an operating body in 1969. It supervises elementary and secondary education in Kansas.

IV. Legal Principles.
Since 1955, the defendant school district and its predecessor have been charged "with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." Green v. County School Board, 391 U.S. 430, 437-38, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968). "Each instance of a failure or refusal to fulfill this affirmative duty continues the violation of the Fourteenth Amendment." Columbus Board of Education v. Penick, 443 U.S. 449, 459, 99 S.Ct. 2941, 2947, 61 L.Ed.2d 666 (1979).
Unfortunately, even in 1987, it is not clear what unitariness entails. Note, Allocating the Burden of Proof After A Finding of Unitariness in School Desegregation Litigation, 100 HARV.L.REV. 653, 662 (1987). "[T]he nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation." Milliken v. Bradley, 433 U.S. 267, 280, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977). De facto segregation (segregation caused by private choice) and segregation caused by authorities other than those sued in this case, are not part of the constitutional violation found in 1954. See Keyes v. School District No. 1, 413 U.S. 189, 198, 93 S.Ct. 2686, 2692, 37 L.Ed.2d 548 (1973); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 23, 91 1293 S.Ct. 1267, *1293 1279, 28 L.Ed.2d 554 (1971). Therefore, a unitary school system must be one that has reversed the segregation caused by the school board's dual system in 1954. Dayton Board of Education v. Brinkman, 443 U.S. 526, 538, 99 S.Ct. 2971, 2979, 61 L.Ed.2d 720 (1979) ("Dayton II").
The mixing of students of different races in the schools is probably the most important factor in determining unitariness. (After all, separate but equal schools violate the Constitution.) But, complete racial balance is not required by the Constitution. Swann, supra, 402 U.S. at 24, 91 S.Ct. at 1280; Dayton Board of Education v. Brinkman, 433 U.S. 406, 413 and 417, 97 S.Ct. 2766, 2772 and 2774, 53 L.Ed.2d 851 (1977) ("Dayton I"). Even the existence of a "small number of one-race or virtually one-race schools within a district is not in and of itself the mark of a system that still practices segregation by law." Swann, supra, 402 U.S. at 26, 91 S.Ct. at 1281. Many other factors should be considered as well. Green, supra, 391 U.S. at 435, 88 S.Ct. at 1692 (faculty, staff, transportation, extracurricular activities and facilities); Keyes, supra, 413 U.S. at 196, 213-14, 93 S.Ct. at 2691, 2699-700 (school site location, school size, school renovations and additions, student attendance zones, student assignment and transfer options, mobile classroom units, transportation of students, assignment of faculty and staff, community and school administration attitudes).
Evidence of segregative motive or the absence of such intent is relevant but not controlling in determining unitariness. "The measure of the post-Brown I conduct of a school board under an unsatisfied duty to liquidate a dual system is the effectiveness, not the purpose, of the actions in decreasing or increasing the segregation caused by the dual system." Dayton II, supra, 443 U.S. at 538, 99 S.Ct. at 2935.
In sum, a unitary school system is one in which the characteristics of the 1954 dual system either do not exist or, if they exist, are not the result of past or present intentional segregative conduct of defendants or their predecessors.
V. The Progress of Desegregation in Unified School District # 501.
Desegregation started in Topeka's public schools prior to the landmark Supreme Court decision in this case. In 1951, there was only one public high school. It served white and black students. Segregation in Topeka's junior high schools had been declared unconstitutional by the Kansas Supreme Court in 1941. Graham v. Board of Education, 153 Kan. 840, 114 P.2d 313 (1941). In September 1953, black elementary students who lived in the districts of two all-white elementary schools (Randolph and Southwest) were permitted to attend those schools. In January 1954, twelve other formerly all-white elementary schools permitted black student enrollment.
One of the all-black elementary schools, McKinley, was closed at the end of the 1954-55 school year, when this case was remanded by the Supreme Court. By the 1955-56 school year, black elementary students attended eighteen of the twenty-three elementary schools. The following school year, fifty-six percent of black elementary

students attended formerly all-white schools; sixty-seven percent of white students attended schools with black students.[1]
In 1959, Buchanan Elementary School, a de jure black school which had remained all black or virtually all black, was closed. Washington Elementary School, the penultimate de jure black school in operation, was closed in 1962.
By the 1968-69 school year, further progress at desegregation was evident. The last de jure black school (Monroe) had a twenty-five percent white student population. It was one of four schools, out of thirty-four elementary schools, with a majority black student population: Belvoir (56.76%); Lafayette (52.68%); Monroe (74.78%); Parkdale (90.84%). Roughly fifty percent of black elementary students attended schools with majority 1294 black student *1294 populations. The percentage attending schools with a black student population of seventyfive percent or greater was 27.5%. Approximately fifty percent of all white students attended schools which were ninety percent or more white.
Of the eleven junior high schools, one had a majority minority student population 0907 East Topeka Junior High (60.43%). Roughly forty percent of all black junior high school students attended this school. Approximately sixty percent of all white junior high school students attended schools with white populations exceeding ninety percent.
In the 1968-69 school year, there were three high schools in U.S.D. # 501. None of the high schools had a majority minority population. Topeka West High School was virtually all white (98.36%). Roughly a third of all white high school students attended this school.
During the 1968-69 school year, the total minority student population was approximately seventeen percent; the total black student population was near twelve percent.
The student attendance figures for the 1985-86 school year bear little resemblance to the figures for 1954. None of the former de jure black schools was open in 1985. Of the twenty-six elementary schools, only one had a majority black student population.[2] Three had majority minority populations: Belvoir (61.86%); Lafayette (56.81%); and Highland Park North (57.93%). Roughly twenty-nine percent of all black elementary students attended these schools. Five elementary schools had student populations over ninety percent white. These schools accounted for approximately twenty-four percent of the white elementary student population. No school had a ninety-five percent white student population.
In 1980, the school district changed from a junior high (grades seven through nine) to a middle school format (grades seven and eight). In the 1985-86 school year, no middle school had a majority minority student population. Two middle schools had white student populations exceeding ninety percent 0907 French (93.77%) and Landon (90.71%). These two schools served approximately thirty-one percent of the white middle school student population. Landon has since been closed and its student population has been assigned to French.
None of the three high schools in the district had a majority minority population in the 1985-86 school year. One high school, Topeka West High School, had a white student population exceeding ninety percent 0907 92.06%. It served roughly forty-one percent of all white high school students in the district.
The student population for the 1985-86 school year was 26.1% minority and 18.6% black.
In sum, when this case was filed, 100% of black elementary students attended 100% black schools. Last school year, only eight percent of black elementary students attended a majority black school. Even in this school (Belvoir), there was a substantial white student population (38.14%).[3]
VI. Plaintiffs' Contentions.
Plaintiffs acknowledge the substantial progress made toward desegregation in U.S.D. # 501. Plaintiffs contend, however, that over the years the district has passed up opportunities to improve racial balance throughout the district; that the vestiges of the de jure system of segregation remain in the form of "racially identifiable" schools; and that the existence of these schools illustrates that the mandate of the Supreme Court remains unfulfilled.

Plaintiffs stress statistical measures of racial identity. Under these measures, if the racial apportionment of students in one school varies from the district average by too great a percentage, then the school is racially identifiable.
1295 *1295 Plaintiffs assert that the racial identity of schools, as determined by student racial ratios, is corroborated by faculty and staff assignments, community attitudes and students' test scores. Plaintiffs further contend that the racial identity of schools has been maintained by a variety of means (e.g., school site location, optional attendance zones, school additions and boundary location).
VII. Defendants' Contentions.
Defendants contend that U.S.D. # 501 is now a unitary school system. Defendants believe plaintiffs place too much emphasis on the racial balance of students as a measure of a constitutional violation, and that demographic forces or other forces beyond the school district's control are responsible for the racial imbalance present in the schools. Defendants believe that factors other than student assignment count in the determination of a constitutional violation, and that these factors (e.g., allocation of resources, uniformity of curricula and instruction) indicate the district operates a unitary school system.
VIII. Burden of Proof.
Plaintiffs have the burden of proving that illegal segregation exists in U.S.D. # 501. Whether the burden of proof should shift to the defendants to prove that illegal segregation does not exist, because of the history of intentional segregation within the district or because of the racial imbalance in the schools' student bodies today, is a difficult question. The passage of time, demographic dynamics and changes in administrative personnel detract from the justification for the Keyes presumption in this case.[4] Nor does this case fit the Swann presumption easily.[5] Regardless of the operation of these presumptions, the court believes defendants have proven by a preponderance of the evidence that U.S.D. # 501 is a unitary school system.
IX. Does Illegal Segregation Remain in U.S.D. # 501?
A. Statistical Measures of Student Population.
The court shall examine many factors to decide whether illegal segregation exists in U.S.D. # 501. But, the statistical measures of the racial makeup of the schools' student bodies are of prime importance. Often in school desegregation cases such statistics alone prove a pattern of discrimination. The separation of the races is the chief vestige of de jure segregation. If the races are no longer separated, then the system may be unitary. Since the separation of students by race can be represented statistically, such measures are important to this case.[6]
A major issue in this case is the importance of statistical racial balance throughout the district 0907 i.e., maintaining a ratio of students in each school that approximates the racial mix of the entire district. The statistics indicate that white and minority students are not separated by race. Significant numbers of white and nonwhite students attend every school in the district. But, there are disparities in the racial makeup of various schools' enrollments. Plaintiffs hinge their case on this absence of racial balance in all schools and the failure of the defendants to take action to promote racial balance.
Plaintiffs suggest that a school is racially identifiable or imbalanced if its percentage of minority students falls 1296 beyond ± *1296 15% of the district average of minority students. For instance, since about 26% of the district's
elementary students are nonwhite, plaintiffs contend that a school with a minority enrollment of less than 11% is a "white" school, and a school with a minority population of more than 41% is a "nonwhite" school. Plaintiffs agree that tighter and wider ranges of racial balance have been used in desegregation litigation, but emphasize that under any range some racially identifiable or imbalanced schools exist in the district.[7] Since the district is responsible for student assignment, it is responsible for the racially identifiable schools.

Undoubtedly, racial imbalance can be the result of past segregative acts by school authorities. But, racial imbalance is unconstitutional only if it is caused by defendants' purposeful racial discrimination. See Columbus Board of Education v. Penick, supra, 443 U.S. at 464-65, 99 S.Ct. at 2950; Dayton I, supra, 433 U.S. at 420, 97 S.Ct. at 2775; Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976). The Supreme Court has held that racial balance is not a constitutional imperative even in districts with a history of purposeful segregation. Swann, supra, 402 U.S. at 24, 91 S.Ct. at 1280; Dayton I, supra, 433 U.S. at 417, 97 S.Ct. at 2774; Milliken v. Bradley, supra, 433 U.S. at 280 n. 14, 97 S.Ct. at 2757 n. 14. Other courts have approved mandatory desegregation plans in which schools fell outside the ± 15% or ± 20% range of racial balance. See Price v. Denison Independent School District, 694 F.2d 334 (5th Cir.1982); Diaz v. San Jose Unified School Dt., 633 F.Supp. 808, 814 (N.D.Cal.1985); Singleton v. Jackson Municipal Separate School Dt., 541 F.Supp. 904 (S.D.Miss. 1981). (The Price case contains an extensive, well-reasoned criticism of a trial court's reliance upon statistical racial imbalance among schools in Denison, Texas to prove illegal segregation.) Therefore, racial balance is not an essential attribute of a unitary school system.
Nevertheless, racially conscious student assignment with the goal of racial balance has been approved as a remedy in desegregation litigation. Swann, supra, 402 U.S. at 25, 91 S.Ct. at 1280. This is because school segregation has an inertia which often cannot be countered by a purely neutral force. In order to achieve "the greatest possible degree of actual desegregation," (Swann, supra, 402 U.S. at 26, 91 S.Ct. at 1281) and, perhaps, to spread the burdens and advantages of desegregation uniformly throughout a district, courts have used racial balance as a target for remedial action.
Still, the need for a remedial decree targeted toward racial balance depends upon whether the present imbalance derives from the de jure system or other intentional discrimination. It is difficult to trace the cause of racial imbalance from the record of this case. A race-neutral system of student assignment based on neighborhood schools has been employed in the district for more than three decades. Although there is some dispute as to whether racial balance has been maximized under the constraints of this system, it cannot be gainsaid that residence rather than race determines school attendance in the district and that the effects of de jure segregation have been substantially countered.
It could be argued that current racial residential patterns and, in turn, student attendance patterns have been affected by defendants' past discriminatory acts, but there has been little or no evidence to support this contention. Obviously, several forces, both social and economic, can influence residential choice. See Milliken v. Bradley, 418 U.S. 717, 756 n. 2, 94 S.Ct. 3112, 3133 n. 2, 41 L.Ed.2d 1069 (1974) (Stewart, J., concurring); 1297 Austin Independent School District v. United States, 429 U.S. 990, 994, 97 S.Ct. 517, 519, 50 L.Ed.2d *1297 603 (1976) (Powell, J., concurring). Thirty years ago, the then Attorney General of Kansas speculated that segregated residential patterns in Topeka were influenced by the segregated school system. There is good reason to question the strength of the alleged causality, however. For instance, black students received free transportation to black elementary schools under the de jure system. (Linda Brown lived near the white Sumner School and took a bus to Monroe.) This may have reduced the incentive to live near black schools. Additionally, in most instances white schools were located near black schools (Lowman Hill near Buchanan; Parkdale near Washington; Grant near McKinley; Van Buren near Monroe). This may have dissipated segregated residential patterns. Finally, two expert witnesses gave conflicting views of current research on whether school segregation causes residential segregation.
The only evidence concerning the district's recent actions regarding housing indicates that the district has opposed housing projects which might impede racial balance, and that the district has attempted to persuade realtors of the uniform quality of the public schools across the district.
Even assuming the influence of school segregation upon residential choice 30 years ago, the steady progress of school and residential integration in Topeka over three decades (particularly in formerly segregated attendance zones) indicates that the effects of school segregation on residential choice, if any, are not cognizable today.[8]
Therefore, although the issue in this case is whether additional remedial action is appropriate, it is inappropriate to use racial balance (a remedial target) as the determining factor of whether remedial action is necessary because: 1) racial balance is not a per se measure of an unconstitutional level of segregation; and 2) after 30

years, one cannot assume that the racial imbalance which remains is a vestige of the de jure system or other illegal segregation. The court concludes that statistical measures of racial mixing are an important factor in determining whether vestiges of segregation remain in U.S.D. # 501. But, the issue is not decided by whether the schools are racially balanced.
The statistics indicate that students in U.S.D. #501 are not separated by race. The smallest percentage of white students in any school in the 1985-86 school year was thirty-eight percent. The smallest percentage of nonwhite students in any school was six percent. Of thirty-five schools, three had minority populations exceeding fifty percent; eight had white populations exceeding ninety percent. Only one school had a black student population which exceeded fifty percent. Only eight percent of all black elementary students (4.7% of all black students) attended this school. Only twenty-four percent of all white elementary students attended schools with white student populations exceeding ninety percent. In the 1985-86 school year, there were two middle schools with white populations exceeding ninety percent. The student populations of the two schools have been consolidated for the 1986-87 school year. One of plaintiffs' experts, Dr. Gordon Foster, testified that if trends continue, the consolidated school will soon become racially balanced as measured by the ± 15% standard. Forty-one percent of the district's white high school students attend a high school with a ninety-two percent white population. But the nonwhite student population of this school is within sixteen percent of the district average of nonwhite high school students. Dr. Foster also predicted that this school would soon become racially nonidentifiable.
When one totals the student populations of the eight schools plaintiffs have labeled as racially identifiable nonwhite or vestige schools (Eisenhower Middle School and the following elementary schools: Quinton Heights, 1298 Lowman Hill, Highland Park *1298 North, Hudson, Lafayette, Avondale East and Belvoir), one finds that the schools are attended by more white students than black students (1,248 white students, 1,079 black students). Indeed, white students make up close to half (49.3%) of all the students that attend these allegedly nonwhite schools.
Statistical indices designed to measure deviation from racial balance (dissimilarity) and opportunity for interracial contact (exposure) indicate relatively high levels of integration in U.S.D. # 501, although the levels may be lower than other school systems with mandatory busing plans or other more aggressive racially conscious student assignment plans. In general, the statistical measures of racial balance have been stable over the past five years. [9]
The student attendance figures for U.S.D. # 501 reflect an enduring integrated nondiscriminatory system of education. Although racial balance has not been achieved, students are not separated on the basis of race. Thus, a vestige of segregation has been eliminated.
B. Student Transfer Policy.
The evidence does not suggest that transfers have been permitted to avoid racial mixing. Indeed, in recent years, the student transfer policy has been used to improve racial balance of schools within the district. In 1978, a policy allowing students freedom of choice within the district was adopted. Within two years, the policy was discontinued because it contributed slightly to racial imbalance. In 1980, a majority to minority transfer policy was established. It is still in effect. Under this policy, transfers which do not improve racial balance are disallowed. Therefore, the district has employed a student transfer policy which encourages integration, not segregation.
C. Optional Attendance Zones.
Students residing in optional attendance zones have the option of attending more than one school. The use of optional attendance zones has been scrutinized because optional zones may allow white students living in racially mixed districts to attend an adjacent white school rather than a racially mixed school. Optional zones were used in Topeka's public schools before 1954. Since 1954, optional zones have been used in racially mixed residential areas and all-white locations. Hence, optional zones, if they had a segregative purpose, were not used solely to segregate. A large number of optional zones were eliminated in 1964. All optional zones were eliminated in 1976. It is difficult to determine the effect of optional zones in U.S.D. # 501 without knowing how many children

lived in the zones or how children of different races exercised their options. Defendants estimated, without direct contradiction, that 7.6% of elementary students and 9.2% of junior high students lived in optional zones in the 1963-64 school year. Defendants' expert, Dr. William Clark, also concluded the zones did not have a significant segregative effect. The court believes any segregative effect of the zones was slight and does not remain today.
D. Space Additions.
Plaintiffs have criticized the use of space additions, such as portable classrooms, at racially imbalanced schools. Plaintiffs have alleged that school authorities chose to perpetuate segregation at these schools (particularly "white" schools), instead of shifting school boundaries or otherwise reassigning students in a manner that would improve racial balance. For instance, in some cases, additions were made to racially imbalanced schools in areas of residential growth when schools in the more racially mixed central parts of Topeka were becoming underutilized.
The use of space additions was consistent with a race-neutral neighborhood school policy. It was not a 1299 widespread practice, for instance, to expand school *1299 boundaries and make space additions to allow
children to avoid integrated school settings. Nor were students encouraged to transfer to segregated schools at which space additions were made. Furthermore, it appears from the report of plaintiffs' expert, William Lamson, that space additions were employed at predominantly white, predominantly nonwhite and racially balanced schools. Ex. 219 at 185. It is possible that actions inconsistent with neighborhood schools could have been taken to avoid space additions and improve racial balance. But, it has not been shown that space additions were intentionally used to promote segregation or that schools are racially imbalanced today because of space additions.[10]
E. School Closings.
The school closings over thirty years in the district indicate a policy of desegregation. All four de jure black schools have been closed. The de jure black school (McKinley) in North Topeka, the small area of the city north of the Kansas River, was closed in 1955 and the black children were assigned to Grant or Quincy elementary schools. Grant was closed in 1977. Now all elementary students in North Topeka attend Quincy School. Washington and Buchanan schools were both closed by 1962. Monroe was closed in 1978. The Pierce School was closed in 1959, one year after its attendance zone was annexed into the district. It was an all-black school. When Parkdale was closed in 1978, it had a minority student population of 85.62%. Three schools in central Topeka closed with relatively high minority populations 0907 Van Buren (1964, 40% est.); Central Park (1980, 42.9% ); Polk (1979, 48%). Three schools with relatively low minority populations have been closed 0907 Dawson (1966, 0% est.); Sheldon (1977, 3%); Landon Middle School (1986, 9.2%). Three schools were closed when they had minority populations near the district average 0907 Rice (1981, 33.5%); Grant (1977, 21%); Clay (1975, 25.3%).[11]
Although a few schools with desirable racial balances have been closed, there is no pattern of closing schools to avoid racial mixing. Indeed, on the whole, the closing of schools appears to have been an integrative device.
F. School Openings.
Several schools with virtually all-white enrollments opened in the 1950s or early 1960s. These schools included McClure, Sheldon, McEachron, McCarter, Bishop and Hudson elementary schools, as well as Jardine, Eisenhower and Landon junior high schools, and Topeka West Senior High School. These schools were in areas of residential expansion. During the same period, new schools with mixed racial compositions replaced existing facilities at Lowman Hill, Lafayette, Highland Park Central, Central Park and Belvoir elementary schools. The latter two schools were built in 1967. Linn Elementary School was built in 1964 and appears to have had a significant minority enrollment.[12] In 1970, French Junior High School opened as a predominantly white school. In 1980, Chase Middle School opened as a racially mixed school and Central Park Elementary School reopened as Robinson Middle School, a racially mixed school.
1300

*1300 Although, on its face, the construction of schools, particularly on the west side of the district, appears to have promoted racial separation, the court does not believe that the district's school construction policy was intended to maintain or promote segregation. Most of the construction occurred during the peak years of student enrollment. More schools were needed. The location of the schools in areas of residential expansion was consistent with the race-neutral neighborhood school concept. There is no evidence that the students attending these schools could have been accommodated in the existing schools or that land was available in the older, more racially mixed areas of the district to build new schools.
Furthermore, the racially mixed schools were not being closed during this period of construction. Instead, new schools were being built in areas of residential integration. The schools being closed were formerly de jure black schools or schools with high minority enrollments; the possible exception being Lincoln Elementary School, which was located in an urban renewal site. Finally, over the years there has been increasing residential and school integration in the areas where the once all-white schools were constructed. In sum, it does not appear that the district's school construction policy has promoted segregated residential patterns or segregated schools.
G. Schoolsite Location.
Plaintiffs have criticized the decision to place a high school on the west side of Topeka 0907 i.e., the construction of Topeka West High School in 1960. The evidence is convincing that Topeka West High School was built in response to the overcrowding of Topeka High School and the expansion of the student population in the western parts of Topeka. At the time Topeka West was built, the district had recently annexed a high school serving the east side of Topeka, Highland Park High School. Since Topeka High was centrally located, a new high school on the west side of the city was a logical response to overcrowding. If the three high schools were aligned vertically (north to south) on a map and had attendance areas for each school which included east, west and central Topeka, then the high schools of the district would be more racially balanced. But, there has not been a persuasive showing that this alternative was practical or necessary to avoid the separation of white and black high school students in the district. The court believes the siting of Topeka West High School was a race-neutral decision.
H. School Boundary Location.
A review of the school boundaries as they have developed over thirty years does not reveal a segregative pattern that remains today. The boundaries set around the former de jure black elementary schools after this case was remanded by the Supreme Court appear to have perpetuated the racial identity of those schools. But, the schools have long been closed and the segregative effects of those boundaries have attenuated entirely.
By and large, the school attendance boundaries of the district reflect a commitment to neighborhood schools. Schools are centrally located in their attendance areas. Some attendance areas, e.g., Gage, McCarter, McClure, Stout, Quinton Heights and State Street, are long. But, these areas include large land tracts without residential population.
The attendance zones of schools with high minority populations are not gerrymandered to produce this result. In general, schools with high minority populations are not in areas with an average or higher than average white population. Nor are they near low minority schools in areas of average racial mixture.
Belvoir Elementary School is centered in an area with a high minority population. It is surrounded by other schools with higher than average minority populations. It is not the black school in a racially mixed area. It is a school with a higher than average black student population in a residential area with a higher than average black 1301 population. Highland Park North Elementary School, Lafayette Elementary *1301 School and Hudson Elementary School are similarly situated.
Quinton Heights and Avondale East elementary schools have higher than average minority populations, but they are surrounded by schools with mostly average to higher than average minority percentages.

Perhaps the most suspect school is Lowman Hill Elementary School. Lowman Hill has a higher than average minority population, but it is bordered on three sides by schools with lower than average minority populations (Potwin, Gage and Randolph). It is also bordered by Sumner Elementary School which is slightly above the district average for minority population. Although Lowman Hill has had a higher than average minority population, it has never had a majority minority population, and its minority percentage has been within fifteen percent of the district average in recent years.
Lowman Hill is centrally located within its attendance area, as are the schools which surround it. Its boundaries include two historically black residential areas which are closer to the Lowman Hill School than the other schools in the area. The boundaries of Potwin and Gage have remained relatively stable over twenty years. The boundaries of Randolph and Sumner have been expanded to increase the minority populations of the schools. Although Gage and Potwin have been predominantly white schools since the Supreme Court's decision in this case, the court cannot say that Lowman Hill is an isolated black school or a vestige school when its boundaries for two decades have been consistent with the neighborhood school concept; it has never had a majority minority student population; and, in recent years it has been relatively close to the district average for minority enrollment.
One of plaintiffs' criticisms of the district's course of desegregation is that schools with a higher than average minority population have been assigned students from closed schools that had even higher minority populations. For instance, Quinton Heights ultimately received students from Monroe. Lafayette and Highland Park North received students from Parkdale. Again, this is a product of a raceneutral neighborhood school concept. Students from closed schools were sent to nearby schools. Racial balance would have been improved to a greater degree if students from a closed school with a high minority population were transported to a noncontiguous attendance area with a low minority population, or if white children were transported the opposite direction. But, this would have breached the neighborhood school policy consistently applied by the district. Plaintiffs' witness testimony also suggested that boundaries could shift in more than one attendance area (in a ripple effect) to more evenly distribute the minority student population after a school with a high minority population was closed. The feasibility of such a plan was not convincingly established in the evidence. Obviously, such efforts would detract from the central location of schools in their attendance areas and, to some extent, diminish the advantages of neighborhood schools.
In summary, the district's attendance zones are not segregatively gerrymandered. The district has consistently applied race-neutral, neighborhood school principles to the demarcation of attendance zones.
I. History of the Schools.
To reiterate, none of the four former de jure black elementary schools are open. Three of the four were closed by 1962. The fourth was closed ten years ago. Of the eighteen white elementary schools operating in 1954: seven have been closed; three have minority populations between five and ten percent; three have minority populations between forty and fifty percent; the remaining five schools have minority populations near the district average, between fifteen and thirty-two percent.
A history of the allegedly racially identifiable nonwhite schools follows.
Belvoir. The Belvoir School area was annexed into the district in 1960. The school had an average or slightly 1302 above average minority population at the time. *1302 In the 1960s, after the construction of two federally-
subsidized housing projects in close proximity to the school, the minority population of the school increased to more than fifty percent. The minority student percentage continued to rise in the 1970s. After the Rice School was closed in 1981 and part of its population was combined with Belvoir, the minority percentage declined to sixty to sixty-five percent. In sum, Belvoir was a racially balanced school which became a majority black and minority school with the influx of minority residents into the attendance area. The increase of minority students at Belvoir was not caused by the school district. Indeed, the school district has taken action to modify the racial imbalance that exists at the school.

Hudson. When Hudson was constructed in 1963, it was an all-white school. After the construction of subsidized housing projects in the Hudson attendance area, and with the general increase of minority residents on the east side, Highland Park area, the minority student population of Hudson grew rapidly in the late sixties and early seventies. In 1983, the minority student population of Hudson exceeded forty percent for the first time.
Avondale East. The land representing the Avondale East attendance area was annexed into the district in 1959. In the 1967-68 school year, the school had a minority population of sixteen percent. The minority population grew rapidly in the following few years and then stabilized in the 1970s in the thirty to thirty-five percent range. In 1984, the school exceeded forty percent in minority population for the first time. The school boundaries of Avondale East and Hudson have been relatively stable through the years. The increase in minority population at both schools appears to be the result of residential movement.
Highland Park North. The Highland Park North attendance area was annexed by the district in 1959. In the 1967-68 school year, the school had a minority student percentage of thirty percent. The average for the school district's elementary student population was seventeen percent. The minority percentage increased with the movement of minority residents to the attendance area. In 1978, with the addition of a large part of the Parkdale attendance area, the minority student percentage of Highland Park North grew from forty-seven to fifty-eight percent. When it closed, Parkdale had a minority percentage of 85.6%. In 1954, Parkdale was an all-white school located near the de jure black Washington School. After the Supreme Court decision in 1955, Parkdale enrolled a minority population of 14.7%. This increased to twenty-four percent in 1956. When Washington was closed, its attendance area was added to the Parkdale district. Of course, this increased Parkdale's minority population significantly. Parkdale became a predominantly black school. When Parkdale was closed, its attendance area was split between the two closest schools 0907 Highland Park North and Lafayette. Since 1978, the minority percentage at Highland Park North has remained around fifty-eight percent. Approximately fifty percent of the minority student population is black. The school district has contributed to the racial imbalance at Highland Park North only to the extent that it closed a school with a much higher minority percentage and assigned some of the students to Highland Park North.
Lafayette. Lafayette was an all-white school prior to the end of de jure segregation. In 1955, it had a minority population of 8.4%. This increased the following year to 13.7%. By 1968, the minority percentage at Lafayette was fifty-nine percent. When Parkdale was closed, Lafayette received part of the Parkdale attendance area. As a result, Lafayette's minority percentage increased from sixty-two to sixty-six percent. This figure has decreased in subsequent years. One factor in the decline may have been the assignment of part of the Rice School attendance area to Lafayette in 1981. For the last five years, Lafayette has had a minority population of fifty-six to fifty-nine percent. It should be noted that Lafayette has had a significant nonblack minority population. In the 1303 1967-68 school year, the school had a twenty-nine percent nonblack minority percentage. *1303 In the 1985-86 school year, the school had a fifteen percent nonblack minority percentage.
Quinton Heights. Quinton Heights was an all-white elementary school prior to the end of de jure segregation. In 1955, it had a minority percentage of 2.8%. This increased to 7.26% the following year. By 1968, the minority population had increased to thirty-five percent. In September 1979, after the closing of Monroe and Polk Elementary schools, Quinton Heights acquired the Monroe school attendance area. Its minority percentage increased to fifty percent in 1979. The minority percentage was approximately the same in 1985.
Lowman Hill. Lowman Hill Elementary School was an all-white school located near the de jure black Buchanan School prior to the Supreme Court decisions in this case. In 1955, Lowman Hill had a black population of 11.4%. This increased to 17.4% the following year. In 1959, Buchanan was closed, and its students were assigned to a new school at the Lowman Hill site. Plaintiffs' expert testimony estimated that this increased Lowman Hill's minority percentage to forty-three percent. Since that time, Lowman Hill's attendance area has been expanded to include parts of the Clay, Polk and Central Park attendance areas. For the last five years, Lowman Hill's minority student population has fluctuated between thirty-six and forty-one percent.
Eisenhower Middle School. This attendance area was annexed into the district in 1959. In the 1967-68 school year, Eisenhower Junior High had a minority percentage of 5.78%. This increased to twenty percent in 1974 and twenty-nine percent in 1977. After the change to the middle school system in 1980, Eisenhower Middle School

was one of six middle schools in the district and had a minority percentage of forty-five percent 0907 approximately twenty percent above the district average for middle school students. In 1985, the minority percentage at Eisenhower Middle School was 48.6% and the district's minority average for middle school students was 26.9%.
To summarize, none of those schools plaintiffs allege to be racially identifiable nonwhite have been racially identifiable by plaintiffs' measures throughout the history of this case. Two factors have contributed to the increase of minority students at these schools. First, for all of the schools, there has been an increased percentage of minority residents in their attendance areas. In other words, the attendance areas have undergone a racial transition not caused by district action. Second, some of the schools have been affected by the expansion of attendance areas to include the attendance zones of schools with large minority populations. On the whole, the closing of the highly imbalanced schools had a desegregative effect upon the district's operation, although it aggravated the imbalance of nearby schools. The assignment of students from areas of minority concentration to nearby schools with higher than average minority populations was consistent with the raceneutral neighborhood school policy of the district. There has been no showing that assigning the student populations of the closed schools to other adjacent attendance zones would have significantly improved the racial balance of the district today.
Plaintiffs have also alleged that several schools are racially identifiable as white schools. Two of the allegedly identifiable white schools are Gage and Potwin elementary schools. These schools were all-white before and after the Supreme Court decisions in this case. In 1967, each school had only one minority student. In 1985, Gage had twenty-five minority students 0907 9.4% of its student population; Potwin had eighteen minority students 0907 7.7% of its student population. There are other elementary schools with low minority percentages: Bishop (10.5%); Crestview (8.9%); McCarter (9.16%); McClure (7.21%); McEachron (10.31%); Whitson (10.22%). These schools are located in west or southwest Topeka where there has been steady residential development over thirty years. All of the schools, like Gage and Potwin, have experienced increasing minority student populations. All of the schools, including Gage and Potwin, have had relatively stable attendance boundaries. One of plaintiffs' 1304 witnesses testified that if trends continue, *1304 the secondary schools which serve the western part of Topeka will become racially nonidentifiable, as measured by minority student percentage. One can assume that this may also occur in the elementary schools serving the same area. In sum, the district has several schools which historically have had low minority populations. These minority populations are growing, however, without opposition by the school district.
J. Facilities.
There is no significant disparity in the quality of facilities available in schools throughout the district.
K. Extracurricular Activities.
There is no discrimination in the conduct of extracurricular activities in the district. Indeed, multiracial participation is guaranteed in certain activities such as cheerleading and student government.
L. Curriculum.
There is no significant disparity in the curriculum and progress of study in the schools throughout the district. In recent years, the district has taken diligent and meticulous steps with the development and use of curriculum guides to assure that all schools and all grades work consistently toward specific and uniform academic goals.
M. Transportation.
There is no discrimination in the provision of transportation in the school district.

N. Faculty and Staff.
Plaintiffs demonstrated that in the years immediately following the Supreme Court decisions, the district discriminated in the hiring and placement of minority staff. In 1963, however, the district passed a resolution against discrimination in the hiring and employment of personnel. At least since 1976, the district has had an affirmative action program and has tried to recruit minority faculty and staff.
In the 1985-86 school year, the district's work force was 12.1% minority. Minority employees were represented at all levels of the work force. Twenty percent of the service workers were minority members. Approximately fifteen percent of the managerial workers were minority members. The current superintendent is a black man, as are the principals of two of the three high schools (Topeka West High School and Highland Park High School). No criticism of the district's affirmative action policy has been made in this case. Nor have the district's hiring policies in recent times been shown to be discriminatory.
Plaintiffs' major contention with regard to faculty and staff is that the assignment of faculty and staff has served to racially identify schools in the district. Plaintiffs have demonstrated that in general there are a greater than average number of minority faculty and staff in schools with a greater than average number of minority students. Elementary schools with minority enrollments greater than fifteen percent of the district average had fifty-three percent of the minority staff at all the district's elementary schools in 1985.[13] Elementary schools with minority enrollments greater than fifty percent had twenty percent of the minority staff at all the district's elementary schools. Elementary schools with minority enrollments less than fifteen percent of the district average had sixteen percent of the district's minority staff at elementary schools.
In the 1985-86 school year, minority staff assignments at the elementary schools ranged from zero percent at McClure to thirty-three percent at Avondale East.[14] These figures have varied over the years, however. During 1305 the last ten years, both Avondale East and McClure have had minority staff percentages very *1305 close to the district average. In the 1977-78 school year, Avondale East had a minority staff percentage of 14.6%; one year later, the figure was 9.8%. In the 1979-80 school year, McClure had an 11.6% minority staff.
At the high school and middle school levels in the 1985-86 school year, minority staff percentages ranged from 24.7% at Robinson Middle School to 2.5% at Topeka West High School.[15] Again, these percentages have fluctuated. In the 1984-85 school year, Topeka West had a 7.5% minority staff. In the 1980-81 school year, Robinson Middle School had a 9.1% minority staff 0907 a figure below the district average for that school year.
In the 1985-86 school year, Belvoir, with the highest minority elementary student percentage, and Potwin, with the second lowest, had virtually equal minority staff percentages. Highland Park High School, with an above average minority student percentage had a below average minority staff percentage. The sole secondary school with a minority enrollment greater than fifteen percent of the district average (Eisenhower Middle School), had only fourteen percent of the minority staff at the secondary level. Thus, there are clear exceptions to the trend demonstrated by plaintiffs.
Moreover, the difference between having a greater than average number of minority staff and having a less than average number of minority staff is very small in most cases. Only six schools in 1985 had minority staff percentages beyond ± 10% of the district average for elementary and secondary schools.[16] Three of these schools were within eleven percent of the district average. Furthermore, all of the schools have been within the ± 10% range in the last ten years.
Perhaps as important as the racial percentages of the faculty and staff is the fair assignment of qualified and dedicated faculty throughout the district. The principals assigned to two schools with relatively high minority student percentages, Highland Park North and Lafayette, have received awards recognizing their work. Furthermore, while there was some testimony that black students have not always been motivated by faculty to fulfill their potential, in recent years it appears that the school administrators and teachers have been dedicated to the belief that all children can learn and achieve.

Examining the school system as a whole, despite the tendency to have more minority staff in schools with a greater than average minority student population, the court does not believe the district's assignment policies serve to identify schools as intended for white or black students. The pattern identified by plaintiffs is not monolithic. The current percentages of minority staff in the district's schools are generally within ranges acceptable to other courts in desegregation litigation. Other facets of faculty and staff policies are nondiscriminatory. In sum, the record before the court with regard to the district's approach to faculty and staff is not indicative of a dual system of education.
O. Community Attitudes.
Plaintiffs employed an opinion survey corporation to survey Topeka residents about their attitudes towards the schools in U.S.D. # 501. Four hundred interviews were conducted by telephone from August 27, 1984 through September 1, 1984. The survey attempted to focus upon the opinions of adults who had or recently had children in the Topeka school system. One of the conclusions of the survey was that people in the community perceive some schools as "black" or "minority" schools and other schools as "white." The survey also found that the schools perceived by the respondents in the survey as "white" are also considered better than the schools perceived as "black" or "minority."
1306 *1306 Defendants employed a public opinion researcher to critique the survey. Several well-founded objections were made.
The court does not believe the survey results are important to the ultimate issues in this case. At the outset, the court discounts the answers concerning the quality of education or quality of facilities at the schools. The survey's respondents were not education experts. They did not examine the entire school system before stating an opinion. Quite simply, in a case where the court is asked to compare school quality, the opinions of lay persons familiar with only one school or a few schools are not as helpful as the opinions of persons familiar with the entire system.
The questions concerning the racial identity or racial balance of schools seem more pertinent to issues in this case. The questions are related to a goal of desegregation 0907 i.e., to achieve a system "without a `white' school and a `Negro' school, but just schools." Green, supra, 391 U.S. at 442, 88 S.Ct. at 1696. This goal, however, as represented in the survey questions, could be seen as utopian. The questions could be understood as asking whether people look past race in characterizing a school. While the world would be a better place if people did not see "race," that is not the constitutional standard which governs this case.
As discussed before (see footnote 7, infra), racial identity or racial balance are ambiguous terms. In the minds of the experts who testified in this trial, a school in Topeka with three white students to every minority student is a colorless or a racially balanced school. But, it is impossible to determine from the survey how Topeka residents characterize such schools because the survey respondents were not asked to characterize schools with that type of student ratio. They were only asked to characterize schools with much higher than average or much lower than average minority populations.
Furthermore, the responses to these questions were inconsistent. A majority of respondents familiar with Quinton Heights Elementary School and a plurality (49%) of the respondents familiar with Highland Park North Elementary School considered those schools to be racially balanced even though both schools had majority minority populations at the time of the survey. In contrast, a majority of respondents familiar with Belvoir Elementary School said it was a black school, although its minority percentage at the time was between that of Quinton Heights and Highland Park North. When respondents were asked if the district had black schools and, if so, to identify the schools, two schools relatively close to the district average for minority student population were most often listed as black schools 0907 Highland Park High School and Topeka High School. Most respondents considered Eisenhower Middle School to be racially balanced, although it had the highest minority student percentage of secondary schools at the time of the survey. The only consistent thread to the survey is that schools with 90% white populations were often characterized as white schools. But, there were some exceptions to this rule. For instance, a plurality of respondents familiar with Gage Elementary School thought it was racially

balanced even though its white population at the time was approximately ninety-two percent. Moreover, the school most often identified as "white," Topeka West High School, was within twenty percent of the average minority student population.
There were other problems with the survey. For instance, women were overrepresented in the survey. This could have affected the results since male and female answers tended to be different. Other segments of the population were left out or overrepresented. It is uncertain whether this may have altered the results. Finally, as defendants have noted, only a small percentage of respondents concurred with most of plaintiffs' racial characterizations of schools. For example, only fifteen percent of all the respondents listed Belvoir as a black school; seventy-five percent of the respondents had no opinion. For all the reasons previously listed, the court does not believe the survey of public opinion is strong evidence that segregation remains in U.S.D. # 501.
1307 *1307 P. Equality of Education.
A part of the trial was devoted to discussion of the harms of school segregation. Plaintiffs presented expert testimony describing the debate on the matter and the outcome of studies in the field. Defendants' experts presented a contrasting view, at least with regard to the effect of desegregation upon students' test scores. This court will postulate that school segregation is harmful because de jure segregation is unequivocably illegal.[17]
It should be reemphasized, however, that the issue at this juncture is not the harms of segregation, but whether intentional segregation or its vestiges remain in the district. Assuming that school segregation negatively affects test scores of minority students, then reasoning backwards (from effect to cause), evidence of inferior achievement by students in schools with high minority populations may be evidence of a vestige of segregation in the district.
Plaintiffs attempted to prove that a disparity in achievement existed by charting according to school, the sixth grade pass percentages on the Kansas Minimum Competency Tests in reading and math for 1985, and making the same comparison of results on the Iowa Test of Basic Skills for 1984-85. No attempt was made to control for any other factor that might influence achievement. In general, the charts show that classes in schools with low minority populations have higher pass percentages and higher scores on the Iowa Test of Basic Skills than classes in schools with average or higher than average minority populations.
Defendants presented a much more careful and comprehensive examination of the issue.[18] Scores on the Kansas Minimum Competency Tests were followed for the years 1980, 1982, 1983, 1985 and 1986. The results were categorized as to the schools' racial mixture: less than ten percent minority; between ten and forty percent minority; and over forty percent minority. Students' varying ability was controlled for with the use of scores on the Cognitive Abilities Test. Income level was controlled for by determining whether a student participated in a free or reduced lunch program. For the year 1986, information was gathered concerning other factors that might affect achievement. A questionnaire was completed by students to obtain information concerning many factors including: parents' education; parents' expectations and support; students' study and work habits; students' reading habits; and students' self-concept. A mobility analysis was also done to track the test scores of students who transferred from one building mixture to another. Approximately 13,000 reading test scores and 13,000 mathematics test scores were examined. Forty-six different analyses were completed.
The conclusion of the study was that the racial composition of schools in Topeka during the period in question did not significantly affect test scores in reading or mathematics. The study further found that movement of students to schools with different racial compositions did not affect proficiency levels. Finally, the study found that many other factors were much more important to achievement than the racial composition of a school.
Plaintiffs criticized defendants' study for improperly controlling for ability. The question was raised as to whether it is possible to control for ability. The court believes, however, that a reasonable and conscientious effort was made by defendants' expert to determine what effect, if any, the racial composition of the district's schools has upon student achievement. The study was characterized by an expert in the field, other than the author of the 1308 study, as "one of the most comprehensive, *1308 largest and most scientifically sound studies" that has been made on these issues. Tr. 2396. Although the results of the study are subject to the national debate which has

endured for years on this issue, the most persuasive evidence at this trial indicates that the racial composition of the district's schools has an insignificant impact on student achievement. Thus, inferior achievement, as a vestige of segregation, has been eliminated.
Q. Opportunities for Desegregation.
The failure to take desegregative action by a district that had an affirmative duty to desegregate should be carefully examined by the court. If a district has consistently dragged its feet on desegregation, then the vestiges of the segregated system may remain.
The Board of Education of Topeka's public schools did not implement a race-conscious student assignment plan following the Supreme Court decisions in this case. The law, as interpreted by this court upon the remand of this case, did not appear to require this action. Nevertheless, the closing of three formerly all-black schools, the enrollment of black students at formerly all-white neighborhood attendance centers, and the inclusion of white residences in the attendance area of the fourth formerly all-black elementary school, had noticeable desegregative results. One of plaintiffs' experts suggested a walk-in desegregation plan was feasible in 1955 and would have produced better results. Ironically, the current attendance zones for elementary schools in central Topeka are not radically different from the walk-in pattern suggested by plaintiffs' expert.
In 1968, with the Green decision, and three years later with the Swann decision, it became clear that a raceneutral neighborhood school system would not satisfy the legal duty to desegregate unless it effectively desegregated student attendance patterns. In 1974, the Department of Health, Education and Welfare (HEW) brought an administrative complaint against U.S.D. # 501 over the district's desegregation. The complaint was dismissed with the district's initiation of short-range and long-range proposals involving the closing of schools, construction of facilities and establishment of middle schools. Schools with the highest minority percentages were closed. Still, a few schools with majority minority student populations remained. During the time that action in response to the HEW suit was considered, the rough outlines of a plan to eliminate all majority/minority schools was developed at the request of the Board of Education. It was not pursued in favor of the long and short-range proposals which were more consistent with neighborhood schools, but still satisfied HEW.
Plaintiffs have asserted that one result of the district's desegregation effort in the 1970s was the completion of Quinton Heights' transformation into a racially identifiable school. Plaintiffs contrast Quinton Heights with the adjacent Stout School. Stout's minority population is approximately twenty percent less than Quinton Heights' minority enrollment. Still, Stout's minority percentage is very close to the district average. Thus, by plaintiffs' definition, it is not a "white" school bordering a "black" school. Moreover, the opportunity for further "desegregation" of these schools within the framework of smaller neighborhood schools is not apparent from the testimony or exhibits in this case.
In 1984, the Board of Education developed "Plans N and X" which represented a departure from the smaller neighborhood school system. Several goals and justifications unrelated to school desegregation were suggested for the plans. But, one of the plans' "assumptions" was that all majority minority schools would be eliminated.
Plan N required closing two middle schools and sixteen elementary schools. Two new elementary schools would be built, and one of the middle schools would be converted to an elementary school. The total construction cost of the proposal over a five-year period was estimated to be $13.2 million, although significant annual operating savings were projected.
1309 Plan X required closing four middle schools and seventeen elementary schools. *1309 One new middle school and one new elementary school would be built. Four middle schools would be converted to elementary schools. The cost of construction was estimated to be $15.4 million, although, again, significant operating savings were forecast.
Under Plans N and X, it was projected that no school's minority enrollment would exceed forty-five percent. In each plan, however, there would be two elementary schools with a white enrollment exceeding ninety-five percent, and at least four schools with white populations of approximately ninety percent or more.

The Board conducted public meetings in all parts of the district for comment upon the plans. Public reaction was uniformly and vigorously negative. No significant segment of the population supported the plans. Because of the hostile reaction to the plans, further consideration of the plans was dropped. No vote was ever taken upon them.
Public reaction to the plans indicated a desire to maintain smaller neighborhood schools. No evidence established that the opposition to Plans N and X, or the failure to implement the plans, was racially motivated.
The court does not believe the district's conduct over thirty years indicates a desire to perpetuate segregation by foregoing opportunities to desegregate schools. After the Supreme Court mandated that children be admitted to schools on a nondiscriminatory basis, the district completed efforts to apply a race-neutral neighborhood school attendance system to all students. This produced substantial integration. After the Supreme Court encouraged race-conscious efforts to eliminate the vestiges of segregation and HEW challenged the progress of desegregation in the district, additional action was taken to improve the racial balance of the student bodies in the district. In recent years, the Board of Education has demonstrated a sensitivity and commitment to maintain and improve integration within the district by drafting long-range proposals with racial mixing goals in mind. The district's efforts to desegregate have been helped by increased residential integration. The district has not bucked the demographic forces that have improved the racial balance of schools.
At any time, more could have been done to achieve racial balance in the schools. But, it begs the issue of this case to argue that racial balancing must be done today because it was not done yesterday. More should be done to improve racial balance in the schools if the existing imbalance follows from defendants' past intentional segregative conduct. The district's history of action or inaction toward racial conditions in the district does not suggest that the racial imbalance of the schools derives from the de jure system or a foot-dragging segregationist policy.
R. Other Factors.
Since 1976, members of the Board of Education of U.S.D. # 501 have been elected through a district system which improves the opportunities for minority membership on the Board. There have been minority members on the Board for several years serving in positions such as President of the Board, where vigorous and effective leadership has been displayed. The Board of Education currently has minority representation.
The district administers various events and programs to encourage interracial contact and ethnic awareness. One notable program is the Topeka Adventure Center. All fifth-grade students attend the Center for two weeks in groups of approximately 100. The groups are balanced by sex, race, geographic part of the city and socioeconomic level. The Center emphasizes student initiative, participation and cooperation in a variety of activities organized in a microcosmic, nonclassroom setting.
S. Summary.
In conclusion, after reviewing a multitude of factors which bear on the issue, the court is convinced that students in U.S.D. # 501 are admitted to school and educated on a nondiscriminatory basis. There is no illegal, intentional, systematic or residual separation of the races.
1310 *1310 Plaintiffs appear to be arguing for a judicial fine-tuning of the desegregation process in U.S.D. # 501. As compared with many desegregation cases, relatively small changes in student and staff assignment would create the balance which plaintiffs define as desegregation. Blind reliance upon statistical measures of balance, at least with regard to student assignment, was persuasively rejected by the Fifth Circuit in Price. Although plaintiffs assert other factors in corroboration of their thesis, a careful review of all relevant circumstances establishes that the de jure system of segregation has been dismantled and its vestiges eliminated.
The facilities, curriculum, progress of education, extracurricular activities and transportation offered by the district are not distinguishable on racial grounds.

Students of different races attend school together in significant numbers in every part of the district. School attendance is determined by a consistent application of neighborhood school principles. There is no gerrymandering. The race-neutral intent of these principles is untainted by past segregative practices. The court is persuaded that de jure segregation either had no significant effect upon residential patterns in Topeka or that its impact on residential patterns has attenuated to insignificance. Thus, the factors which bear on the racial condition of school attendance are the factors which affect residential choice 0907 economic, social and geographic factors 0907 not matters directed by defendants.
Racial balance does not exist in the district's schools. Some schools have a significantly greater minority student population than other schools. The schools with high or low minority percentages, however, are not the product of de jure segregation or covert intentional segregation. They are not isolated in neighborhoods with contrasting racial complexions. The schools with high minority populations have not been "minority" schools throughout their history. The schools with low minority populations are receiving increasing numbers of minority students. Demographic forces, uncontrolled by defendants, form the racial composition of the schools.
Disparities also exist in the numbers of minority faculty and staff at schools in U.S.D. # 501. These disparities, however, are neither so large, nor so consistent that they identify schools as racially segregated.
Regardless of the merits of racial balance, the imbalance perceived in this case is neither unconstitutional per se, nor unconstitutional in conjunction with other factors such as community attitudes, test scores, faculty and staff assignment or opportunities for improvement. The record reflects that defendants did not cause the present imbalance by engaging in or perpetuating the vestiges of illegal race-conscious conduct. An examination of the school system as a whole reveals an integrated system free of the characteristics of de jure segregation.
X. Title VI.
Plaintiffs have premised their action in part upon Title VI of the Civil Rights Act of 1964. This statute prohibits racial discrimination in programs receiving federal financial assistance. The school district receives federal financial assistance 0907 some of which is applied generally and some of which is earmarked for specific programs. Therefore, Title VI applies to the district.
Title VI, however, only reaches intentional discrimination, unless agency regulations promulgated pursuant to Title VI provide otherwise. Alexander v. Choate, 469 U.S. 287, 293, 105 S.Ct. 712, 717, 83 L.Ed.2d 661 (1985). The record does not establish that defendants intentionally discriminate against plaintiffs or that a policy of intentional discrimination has had effects continuing to the present. Nor has a proper case for relief under federal regulations been proven. Plaintiffs have asserted that the district violated 34 C.F.R. § 100.3(b)(2). But, the district's student and staff assignment criteria do not have the effect of discriminating against students because of their race or of impairing the education of minority students. Therefore, relief under Title VI is not warranted.
XI. The State Board of Education.
1311 Plaintiffs have alleged that the State Board of Education (SBE) is responsible for *1311 the racial conditions within U.S.D. # 501, more for what SBE has not done than for what SBE has done. When this case was filed, SBE did not exist. The State had a Superintendent of Public Instruction, but this officer did not have general supervisory powers over local public schools. The State's involvement in this case was limited to defending the constitutionality of the statute which permitted, but did not command, segregation in grades K-6 in Topeka's schools. After this defense failed, the statute was repealed. In 1966, Article 6 of the Kansas Constitution was amended. This amendment provided for the creation of SBE which would supervise elementary and secondary education. The Constitution expressly reserved control of public schools to locally elected school boards, however. See State ex rel. Miller v. Board of Education, 212 Kan. 482, 511 P.2d 705 (1973).
This is an official capacity action. The individual members of SBE are being sued in their official capacity for injunctive relief. To prevail in such a suit, plaintiffs must demonstrate that SBE is a "moving force" behind the illegal segregation which they allege. Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 3106, 87 L.Ed.2d 114

(1985). It must be established that SBE's policy or custom played a part in the presence of illegal segregation within U.S.D. # 501. Id. In Rizzo v. Goode, 423 U.S. 362, 377, 96 S.Ct. 598, 607, 46 L.Ed.2d 561 (1976), the Court reversed an injunctive decree involving police conduct in Philadelphia, distinguishing two school desegregation cases (Brown and Swann) on the grounds that the defendants in Rizzo were not shown to have deprived others of their constitutional rights by their own conduct.
In this case, plaintiffs have attempted to establish liability of the members of SBE by showing that SBE failed to police the desegregation process in U.S.D. # 501 and failed to provide assistance, guidance and impetus for desegregation. The court finds that SBE has been inactive in this area. But, plaintiffs have failed to demonstrate that the policy or custom of SBE is a root cause or moving force behind the racial conditions which currently exist in the district. There has been no showing that the conduct of SBE has deprived plaintiffs of their constitutional rights. The responsibility for student and staff assignment as well as for the equalization of educational opportunity within the district rests with the local school board. The State has repealed the legislation authorizing segregation. Legislation prohibiting discrimination has been enacted. Any residue of segregation traceable to the repealed statute has been eradicated in the court's opinion. For these reasons, the court believes SBE is not responsible for the racial conditions present in the district.
XII. Conclusion.
U.S.D. # 501 provides a high-quality educational opportunity to its students on a nondiscriminatory basis. There is no significant or consistent disparity in the faculty and staff, facilities, transportation or extracurricular activities available to students. Students are assigned to schools on a race-neutral basis. The district's neighborhood school approach has achieved a high level of integration, but not racial balance by any measure. The racially imbalanced schools are not the product of overt or covert intentional segregative conduct. The court is convinced after reviewing a multitude of factors that the vestiges of past segregation in the district have been dissolved by time, demographic change and the district's steady course of race-neutral and integrative action. This case has reached an appropriate denouement. The district has a unitary system of education.[19]
Accordingly, plaintiffs' claims for relief are denied.
IT IS SO ORDERED.
[1] Unless stated otherwise, the numbers stated in this opinion do not include students attending special programs such as Head Start, Capitol City School, or special education programs.
[2] Highland Park North Elementary School was one student short of a 50% black student body.
[3] There was testimony that the minority student population of Belvoir increased to 66% in the current school year.
[4] In Keyes, supra, 413 U.S. at 208, 93 S.Ct. at 2697, the Court held that proof of "intentionally segregative school board actions in a meaningful portion of a school system ... creates a presumption that other segregated schooling within the system is not adventitious."
[5] In Swann, supra, 402 U.S. at 26, 91 S.Ct. at 1281, the Court held that school authorities had the burden of proving that student assignments were "genuinely nondiscriminatory" when a desegregation plan left "some schools that are all or predominantly of one race ..."
[6] Racial inventories of students in the district were not kept between 1956 and 1966. The first complete inventory available to the court is for the 1967-68 school year. So, precise measures of racial mixing are not known for the first decade following the remand of the case from the Supreme Court.
[7] One could contend that for a school to be racially identifiable, the student population should be balanced at fifty percent white and fifty percent nonwhite. This is not plaintiffs' view. They argue that, in Topeka, a fifty percent

nonwhite school is identifiably nonwhite because the size of the deviation from the district average of nonwhite students means the school has significantly more nonwhite students than other schools.
[8] School integration may lead to white flight and residential segregation. There was slight evidence in this case that some white flight resulted from integration of the elementary schools. But, the evidence did not establish that current residential patterns have been significantly affected by white flight.
[9] The number of "racially identifiable" schools (using the ± 15% standard) has increased from nine to fifteen in recent years. But, this increase involves four schools which in their history have crisscrossed the ± 15% threshold and two schools which have had gradually growing minority populations. The increase does not appear to have been caused by district action.
[10] Plaintiffs chose to emphasize that virtually all the portable classrooms placed at the senior high schools were placed at Topeka West High School 0907 the identifiably "white" senior high school in the district. Of course, if portable classrooms had not been placed at Topeka West, the racial identity of the school would not have changed. Instead, more students would have attended the other high schools which may have had a better racial balance, but which were probably overcrowded. Plaintiffs have not denied the overcrowding problems experienced at the high schools. Nor was the feasibility of placing portable classrooms at other schools well established. Placing portable classrooms at Topeka High, the school adjacent to Topeka West, would have been very difficult. Even by plaintiffs' standard, Topeka West is now on the threshold of racial balance. Therefore, the placement of portable classrooms at Topeka West has not prevented desegregation.
[11] The Lincoln Elementary School was racially mixed when it closed in 1962.
[12] In 1966, Linn had a minority population of 5.7% versus a district average of 16.5%. By 1969, the minority enrollment had grown to 12.5%.
[13] The "faculty and staff" data available to the court are for the school years 1973-74 to 1985-86. The data lump together faculty and other employees assigned to the schools. Figures for faculty assignments only are available for the 1981-82 school year alone.
[14] The minority staff percentage for all elementary schools was 11.23%.
[15] The minority staff percentage for all high schools and middle schools was 12.65%.
[16] The ± 10% range was a remedial target approved by the court and the parties in United States v. Texas Education Agency, 679 F.2d 1104 (5th Cir.1982). See also Board of Education v. Dowell, 375 F.2d 158 (10th Cir.1967).
[17] In Washington v. Seattle School District No. 1, 458 U.S. 457, 472, 102 S.Ct. 3187, 3196, 73 L.Ed.2d 896 (1982), the Court stated: "[I]t should be ... clear that white as well as Negro children benefit from exposure to `ethnic and racial diversity in the classroom.'" Quoting Columbus Board of Education v. Penick, supra, 443 U.S. at 486, 99 S.Ct. at 2991 (Powell, J., dissenting).
[18] Ex. 1109, "An Analysis of Black Student Achievement in USD 501 Topeka, Kansas: 1980-1986" by Dr. John P. Poggio.
[19] Under Dowell v. Board of Education, 795 F.2d 1516 (10th Cir.1986), the original order to desegregate remains effective.
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 </s> 878 F.Supp. 1430 (1995)
Oliver BROWN, et al., Plaintiffs, and
Charles and Kimberly Smith, minor children by their mother and next friend, Linda Brown Smith, et al., Intervening Plaintiffs, v.
UNIFIED SCHOOL DISTRICT NO. 501, SHAWNEE COUNTY, KANSAS, Defendant.
No. T-316.
United States District Court, D. Kansas.
February 21, 1995.
14312 *1431 *1432 Richard E. Jones, Jones & Jones, Topeka, KS, Christopher A. Hansen, Victor A. Bolden, ACLU Nat. Legal Dept., New York City, for plaintiffs.
Dan Biles, Gates & Clyde, Chartered, Overland Park, KS, Charles N. Henson, K. Gary Sebelius, Anne L. Baker, Wright, Henson, Somers, Sebelius, Clark & Baker, Carl A. Gallagher, Office of the Atty. Gen., Charles D. McAtee, Topeka, KS, Robert T. Stephan, Lenexa, KS, for defendant.
MEMORANDUM AND ORDER
ROGERS, District Judge.
This case is now before the court upon plaintiffs' motion and supplemental motion for attorneys' fees and costs.
As defendant concedes, the controversy over plaintiffs' motions is not whether plaintiffs recover their attorneys' fees and costs, but how much should be recovered. A prevailing party in a case brought under federal civil rights law is entitled to recover his or her reasonable attorney's fees. 42 U.S.C. § 1988; Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983). It is undisputed that plaintiffs are a prevailing party in this action. See Texas Teachers Ass'n v. Garland School Dist., 489 U.S. 782, 791, 109 S.Ct. 1486, 1493, 103 L.Ed.2d 866 (1989) (a "prevailing party" must prevail "on any significant claim affording some of the relief sought.").
To determine what fees and expenses are reasonable, the court must calculate the number of hours reasonably expended on this litigation multiplied by a reasonable hourly rate. Hensley v. Eckerhart, supra, 461 U.S. at 433, 103 S.Ct. at 1939. The court shall start by discussing what should be a reasonable hourly rate for plaintiffs' attorneys in this matter.
1. Hourly rate
a) Local vs. nonlocal rate
Plaintiffs claim that they should recover fees for the time of their nonlocal counsel at rates of $125.00 to $300.00 an hour and fees for the time of their local counsel at the rate of $175.00 an hour. Plaintiffs also ask that the work of paralegals, law clerks or legal interns be compensated at a "nonlocal" rate of $85.00 an hour. Plaintiffs were substantially assisted in this case by four counsel from the New York headquarters of the American Civil Liberties Union, as well as paralegal personnel with the ACLU in New York.[1] That these counsel and paralegal staff worked for a non-profit organization is of no consequence. "`Reasonable fees' under § 1988 are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented

1433 by private or non-profit counsel." *1433 Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984).
Many factors, such as skill, experience and reputation, may play a part in the decision of what is "the prevailing market rate in the relevant community." Id. at 895 n. 11, 104 S.Ct. at 1547 n. 11. The burden is on the plaintiffs to show that the requested rates are "in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Id. at 895 n. 11, 104 S.Ct. at 1547 n. 11.
One question the court must decide is what is the "relevant community" for determining the market rate for counsel. In other words, should a local rate or a nonlocal rate of compensation apply? In a class action challenging prison conditions in the maximum security unit of a Colorado penitentiary, the Tenth Circuit stated: "Absent more unusual circumstances than we see in this case, the fee rates of the local area should be applied even when the lawyers seeking fees are from another area." Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir.1983). In other words, in that civil rights action, the Tenth Circuit determined that the "relevant community" was the location where the trial was conducted. See also, In re "Agent Orange" Product Liability Litigation, 818 F.2d 226, 232 (2d Cir.1987) (relevant community for fee determination is community where trial court sits). Noting the substantial volume of civil rights litigation filed nationwide, the Tenth Circuit further declared that prisoner rights cases were not so specialized that the "relevant community" should be expanded beyond Denver or any other metropolitan area. The court also commented that no different rule should apply to other areas of civil rights law. "Most other substantive areas of civil rights law have become sufficiently familiar that reasonably competent lawyers who do civil rights work should be able to function at both the trial and appellate level." Id.; see also, Jane L. v. Bangerter, 828 F.Supp. 1544, 1551-52 (D.Utah 1993) (local area fee rates applied in abortion rights litigation).
Plaintiffs argue that a different rule should be applied to this case because local counsel were not willing or not able to perform the work or advance the money necessary for plaintiffs' representation. Plaintiffs assert that this was an unpopular case which required a large number of hours and huge expenses. The ACLU advanced more than $200,000.00 during the course of the litigation. Most of this was advanced before plaintiffs knew they would prevail, although a substantial amount was paid during the remedy phase of this litigation. Plaintiffs also urge the court to consider the impact of the decision in West Virginia University Hospitals v. Casey, 499 U.S. 83, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991). There, the Court held that expert witness costs normally cannot be recovered under § 1988. Plaintiffs argue that this decision increases the reluctance of counsel to take cases like the instant case. Finally, plaintiffs contend that the dearth of class action civil rights cases filed by the local bar proves that local attorneys are adverse to bringing school desegregation cases.
The court rejects these arguments. The court believes attorneys' fees should be awarded on the basis of local rates in this case.
The court firmly believes the local bar was competent to tackle whatever factual and legal difficulties this case presented. In fact, local attorneys have represented plaintiffs since the beginning of the case. Local attorneys alone have represented defendant. In the court's opinion, the difficulty of this case has not stemmed from its factual complexity (the school district is relatively small and its history is straightforward), but from the ambiguity of school desegregation law and, perhaps, the "closeness" of the facts. The facts were not at issue in this case as much as the conclusions to be drawn from the facts. Plaintiffs' lead nonlocal counsel during the trial and appeal stages (Christopher A. Hansen) did not have any previous experience in school desegregation cases before he entered his appearance in this case. Mr. Hansen undoubtedly had helpful experience in factually complex civil rights litigation. But, there were many other attorneys in this community who had sufficient experience in cases of comparable complexity to conduct this litigation, although they too did not have direct 1434 experience in school desegregation *1434 cases. Therefore, Mr. Hansen's overall experience, and that of his colleagues,[2] does not by itself warrant reimbursing plaintiffs for their hours at a nonlocal rate, since local attorneys were available with sufficient expertise to conduct this litigation. See Beard v. Teska, 31 F.3d 942, 957 (10th Cir.1994) (nonlocal attorney with substantial civil rights litigation experience not entitled to his higher established rate when local attorneys with expertise in the issues in question were available to conduct the case).

Plaintiffs have suggested that local attorneys were unwilling to take on this case because it was unpopular or would be too expensive to litigate. We do not accept this rationale for nonlocal rates for the following reasons. First, local attorneys in fact were willing to work on this case and did represent plaintiffs. Second, given the reputation of this case as one of the great cases in American jurisprudence, it is difficult to conclude that no attorney in the area was willing to be actively involved for fear of being unpopular. We note that plaintiffs' local counsel are not asking for an enhanced fee rate because of any social stigma. We also note that any such enhancement should rarely be given. See Ramos v. Lamm, supra, 713 F.2d at 558. Third, civil rights litigation filed by local attorneys has always been a major part of the docket in this court. Local attorneys in this court's experience have not shied away from civil rights cases, even though those cases may be considered controversial or anti-establishment. In fact, local attorneys attempted to proceed with other school desegregation litigation in the 1970s but were rebuffed by the pendency and reactivation of this case. See Miller v. Board of Education and Chapman v. Board of Education, Case Nos. 79-1473 and 79-1408 (D.Kan., unpublished, 6/17/80). Fourth, the small number of class action civil rights suits filed in Topeka is not dispositive of the "relevant community" question in our opinion. See Avalon Cinema Corp. v. Thompson, 689 F.2d 137, 141 (8th Cir.1982) (out-of-state counsel not required simply because the case was the first adult-movie zoning case in the state). To reiterate, based on the court's assessment of litigation in this court and others in the area, local counsel are not too timid or provincial to bring a case such as the one at bar. Finally, the affidavits filed by plaintiffs do not indicate that plaintiffs attempted to find other local attorneys to assist them in funding and staffing this case. Indeed, one affidavit indicates that plaintiffs "did not seriously consider adding additional Topeka counsel" before seeking the assistance of a national organization because it was "obvious" that local counsel and local finances were not available for this case. While this conclusion was "obvious" to plaintiffs, it is not obvious to the court when four or five local counsel were assisting plaintiffs at the time and other local counsel were bringing civil rights litigation including school desegregation litigation.
Plaintiffs have attempted to buttress their conclusion by noting the time and expense this case has required. But the court does not believe the time and expense in hindsight is relevant. Indeed, from the advantage of hindsight, much of the time and expense in this case appears of questionable utility. The court is mindful that it is not always fair to judge the value of litigation decisions in hindsight.[3] But, neither should the impact of time and expense be exaggerated to suggest that local counsel were unable or unwilling to handle this case.[4]
1435 *1435 Finally, for several reasons, the court does not believe the financial resources the ACLU was able to contribute to this case should dictate that a nonlocal rate be used to compensate the ACLU's attorneys. First, the evidence before the court indicates that local counsel have advanced comparable sums of money in other litigation. Therefore, local counsel are not necessarily adverse to advancing substantial funds in a case. Second, this case could have been prosecuted with less money expended for experts without affecting the result. For example, the expenditures made to Central Surveys, Inc., Dr. Speer, and perhaps even Dr. Crain might have been deleted entirely. Moreover, the amount spent for Mr. Lamson's work (over $70,000.00) seems excessive. Lastly, it does not seem logical that the relevant community for determining the market rate for counsel should be decided by the location of the headquarters of the organization advancing money for the lawsuit. The headquarters site is determined by arbitrary factors unrelated to the market of and market rate for attorneys in this community. See Louisville Black Police Officers Organization, Inc. v. City of Louisville, 700 F.2d 268, 277 (6th Cir.1983) (Legal Defense Fund's choice of New York City as a headquarters site should no more require the application of New York City rates than would Oswego, New York rates automatically be required if the LDF decided to relocate in that city.).
The above discussion is relevant to plaintiffs' contention that the holding in West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991) requires the application of a nonlocal rate, or perhaps an enhanced local rate, in this case. Under the Casey decision, plaintiffs' expert witness fees cannot be shifted to defendants under § 1988. The court believes that local counsel could have duplicated the financial resources which were expended to prosecute this action. We also believe plaintiffs would have achieved the same result in this case even if they had spent significantly less for expert services. Local counsel also would have faced less travel, hotel and related expenses. For these reasons, we remain convinced that local counsel could have competently and professionally prosecuted this case, even considering the Casey decision.

Therefore, we do not think a nonlocal rate or an enhanced local rate should be used to compensate for the financial burden of paying expert witness fees.
For all the reasons previously mentioned, the court believes the relevant community for the purposes of determining the market rate for compensation is Topeka, Kansas.
b) The local rate
Both sides have submitted affidavits to support their positions regarding what the court should award as the local market rate for attorney compensation. The court shall not detail the substance of the various affidavits. Plaintiffs' affidavits from private attorneys in Topeka who have prosecuted civil litigation suggest a rate no less than $150.00. Defendant's briefs include affidavits from attorneys with the larger firms in Topeka who suggest a rate no more than $125.00. The court notes that none of plaintiffs' local attorneys have submitted an affidavit which recites an established rate of charge. We also note that there are no affidavits from other attorneys in Topeka which quote an established rate of $175.00, although that is the rate requested by plaintiffs in this case.
Two arguments made for a higher rate are the delay in receiving payment and the contingent nature of this case. In other words, plaintiffs' counsel have not been paid since they started working on this case in 1979, and payment was contingent on winning the case. The court shall attempt to compensate for the delay in this case by paying all hours reasonably expended in this case at 1995 rates. See Missouri v. Jenkins, 491 U.S. 274, 284, 109 S.Ct. 2463, 2469, 105 L.Ed.2d 229 (1989). We do not believe the contingent nature of any fee recovery is an effective argument for rate enhancement in this case. Such an enhancement was rejected by the U.S. Supreme 1436 Court in City of *1436 Burlington v. Dague, ___ U.S. ___, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992).
The court has reviewed several recent cases in which attorney's fees have been granted pursuant to § 1988 or comparable statutes. The rates granted generally have not exceeded $125.00. Tyler v. City of Manhattan, 866 F.Supp. 500 (D.Kan.1994); Franz v. Lytle, 854 F.Supp. 753 (D.Kan.1994) ($125.00 an hour awarded in a § 1983 case arising from Wichita 0907 court took judicial notice that the hourly rates in Topeka were much less); Phelps v. Hamilton, 845 F.Supp. 1465 (D.Kan.1994); Woods v. Shawnee Gardens, 1993 WL 545220, 1993 U.S. Dist. LEXIS 18477 (D.Kan. 12/1/93) (a Title VII action in Kansas City in which the court stated $150.00 was too high for a Title VII case); Lee v. Farmers Insurance Co., 1992 WL 331340, 1992 U.S. Dist. LEXIS 17116 (D.Kan. 10/26/92) ($125 an hour requested and granted in a Title VII action brought in Kansas City); but see, Oliphant v. Perkins Restaurants Operating Co., 1995 WL 7729, 1995 U.S. Dist. LEXIS 178 (D.Kan. 1/6/95) ($135.00 an hour awarded in a case brought in Kansas City).
In light of these cases, the affidavits, the court's evaluation of the difficulty of this case, and the court's own familiarity with the prevailing rates in the area, the court shall award $125.00 an hour for the time charged by attorneys Christopher Hansen, Richard Jones and E. Richard Larson. The court shall award $90.00 an hour for the time charged by attorneys Joseph Johnson, Charles Scott, Jr. and Victor Bolden. The court shall award $75.00 an hour for the time charged by Jon Dubin. The court has decided on a lower rate for some counsel based upon the attorneys' reduced role in the litigation and, in the case of Bolden and Dubin, lesser experience as attorneys.
2. Reasonable number of hours
The court must decide what amount of hours was reasonably expended on this case. Hensley v. Eckerhart, supra, 461 U.S. at 434, 103 S.Ct. at 1939. The burden is on the plaintiffs to show that the claimed hours are reasonable. Blum v. Stenson, supra, 465 U.S. 886 at 897, 104 S.Ct. 1541 at 1548 (1984). The court acknowledges that plaintiffs have voluntarily reduced the amount of hours for which they request compensation. These reductions have been made to account for hours spent on issues litigated unsuccessfully against state defendants, hours for which contemporaneous time records were not kept, and as an exercise in billing judgment.
The court believes some additional reductions are necessary. The court shall make further cutbacks from the amount of hours claimed by plaintiffs' counsel or persons working for plaintiffs' counsel for the following reasons.

First, the court does not believe the time spent by "volunteer" paralegals (Matthew Daniels, Gladys Chen and Paul Mulbrecht) should be charged to defendant. Since these people are labeled as "volunteers," the court assumes they were not paid by the ACLU. The court does not believe a private law firm would charge a client for the work of an unpaid volunteer. Therefore, the court does not believe the hours worked by volunteers in this case should be compensated. See Hart v. Bourque, 608 F.Supp. 1091, 1093 (D.Mass.1985) rev'd on other grds, 798 F.2d 519 (1st Cir. 1986).
Second, the court shall compensate plaintiffs for the research work of Alan Jenkins at a lower amount than requested. The vast majority of this time is only generally described as "research" in the time records submitted by plaintiffs. Mr. Jenkins' affidavit states that he did this work in 1984 when he was employed as a college student to do research on remedial options available in this case. However, in 1984 there had been no decision that an additional remedy was required. Moreover, there is no indication that this research was useful in determining or arguing what the ultimate remedy should be in this case. Because of these problems with documentation and the questionable utility of Mr. Jenkins' work, the court shall award plaintiffs compensation for half of the hours claimed by Mr. Jenkins at a rate of $25.00 an hour. The rate of compensation is consistent with the range of rates cited in affidavits from local attorneys filed in this case.
1437 *1437 The court shall also make small reductions in the hours claimed by plaintiffs' attorneys to account for background research and for overstaffing during conferences, depositions and hearings in this case. In reviewing the billing statements of counsel, there are instances where the court believes more counsel than were needed appeared at conferences, depositions and hearings. Also, the large number of counsel created the need for additional conferences among plaintiffs' attorneys and multiplied the cost of such conferences. We also believe that some duplication of effort was required when Mr. Hansen took over for Mr. Larson in this case. In making the reductions, the court shall not specifically identify the hours which are being disallowed. See Zuchel v. City and County of Denver, 997 F.2d 730, 744-45 (10th Cir.1993) (no requirement that district courts identify and justify each disallowed hour).
Finally, the court shall not compensate counsel for travel time since, in the court's estimation, this case could have been litigated by local counsel. See Iqbal v. Golf Course Superintendents Ass'n of America, 717 F.Supp. 756, 757 (D.Kan.1989) aff'd, 900 F.2d 227 (10th Cir.1990); Jane L. v. Bangerter, supra, 828 F.Supp. at 1549. The court has only cut out travel time between New York and Topeka by plaintiffs' New York counsel. The court shall compensate plaintiffs for attorney travel time to out-of-town depositions.
Defendant has argued that significant reductions should be made in the number of hours for which plaintiffs' counsel are compensated to account for plaintiffs' less than complete success in this case. We reject this argument. The Supreme Court has stated:
Many civil rights cases will present only a single claim. In other cases the plaintiff's claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.
Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified.
Hensley v. Eckerhart, supra, 461 U.S. at 435, 103 S.Ct. at 1940 (citation omitted).
We believe that plaintiffs' claims for relief in this case are related and have involved a common core of facts. Plaintiffs have obtained significant relief because of their efforts 0907 "excellent results" 0907 in the terminology of the Hensley case. Consequently, the court refuses to reduce the number of hours for which compensation is awarded because of defendant's claim that plaintiffs were less than completely successful.
Defendant has asked for additional reductions from plaintiffs' total of compensable hours for time spent on issues relating to state defendants. Defendant has a fair argument here. But, the hours defendant identifies may have

been relevant to issues not solely connected with the state parties. Therefore, the court shall not make additional cutbacks of this type.
Defendant has also asked that no award be made for the time spent by Charles Scott, Jr. because of a lack of documentation and possible duplication. The court finds that the lack of documentation should be excused because of a fire which destroyed Mr. Scott's records. The court shall make some reduction in the fees requested for Mr. Scott's services on the basis of the factors mentioned earlier. But, the court shall not eliminate his fees entirely.
3. Costs
As part of an attorney's fees award under § 1988, plaintiffs are entitled to reimbursement for costs or expenses which are normally charged to clients by attorneys. Ramos v. Lamm, supra, 713 F.2d at 559.
1438 *1438 The court shall make the following reductions in plaintiffs' claims for costs. The court shall not reimburse plaintiffs for the costs of their expert witnesses. As previously stated, in West Virginia University Hospitals v. Casey, 499 U.S. 83, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991), the Court held that the cost of expert witnesses normally cannot be recovered under § 1988. Plaintiffs' efforts to distinguish the instant case from the holding in Casey are not persuasive. Plaintiffs have suggested that their experts should be considered court-appointed experts for whom compensation is allowed under 28 U.S.C. § 1920. The court did not appoint plaintiffs' expert witnesses. Hence, the court shall not consider them to be court-appointed experts.[5] The court also finds that the post-judgment status of this case does not provide good cause to shift the cost of plaintiffs' expert witnesses to defendant under § 1988.
The court also shall not reimburse plaintiffs for attorney travel costs, lodging and other expenses incurred by nonlocal counsel for trips between New York and Topeka. Further, reimbursement shall not be granted for secretarial and word processing costs. The travel costs were not reasonably expended because the court believes local counsel could have litigated this case. See Ramos v. Lamm, supra, 713 F.2d at 559. Secretarial and word processing costs are part of the overhead expenses of a normal law firm, in the court's opinion, and should not be assessed against an adversary in litigation. See Hollowell v. Gravett, 723 F.Supp. 107, 111 (E.D.Ark.1989); Cole v. Tuttle, 462 F.Supp. 1016, 1020 (N.D.Miss. 1978).
4. Other factors
The court does not believe there are any factors, such as those described in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974), which require upward or downward adjustments in the award of fees and costs in this case.
5. Conclusion
Plaintiffs' motions are granted, and defendant shall pay plaintiffs' fees and costs based on the following calculations:
Mr. Hansen 0907 1,953 hrs at $125/hr = $244,125.00
Mr. Jones 0907 1,175 hrs at $125/hr = $146,875.00
Mr. Bolden 0907 220 hrs at $90/hr = $19,800.00
Mr. Larson 0907 218 hrs at $125/hr = $25,875.00
Mr. Dubin 0907 88 hrs at $75/hr = $6,600.00
Mr. Johnson 0907 123 hrs at $90/hr = $11,070.00

Mr. Scott 0907 240 hrs at $90/hr = $21,600.00
Mr. Jenkins 0907 167 hrs at $25/hr = $4,175.00
COSTS 0907 $41,451.97
TOTAL AWARD 0907 $521,571.97
IT IS SO ORDERED.
[1] Actually, more than four ACLU counsel worked on this case. But, plaintiffs' motions seek compensation for the time of four attorneys from the ACLU. Plaintiffs, in the exercise of billing judgment, decided not to ask for compensation for the time of some attorneys and paralegal personnel who worked on this case.
[2] The court acknowledges that E. Richard Larson had some experience in school desegregation cases prior to entering this litigation. Mr. Larson was the primary counsel for the ACLU in this matter before Mr. Hansen took his place. The court does not believe Mr. Larson's experience was so unique and beneficial to the case that it warrants a rate of compensation above the local norm. School desegregation law was not an emerging field when this case was reopened in 1979. A plethora of cases and resources were available which any reasonably skilled attorney could rely upon to provide competent representation to his or her client.
[3] For this reason, the court has not subtracted some of these "questionable" hours from its reasonable hours computation.
[4] We acknowledge the affidavit of Arthur Benson who has described the difficulties he faced in finding help from local attorneys in litigating the desegregation case involving Kansas City, Missouri schools. We believe this affidavit is of limited relevance. Although this case has a "bigger" name, the Kansas City case is much bigger litigation. Furthermore, activity of local counsel in this case contradicts the assertion that local counsel were unwilling and unable to pursue this matter. Finally, it appears that counsel in the Kansas City case were compensated on the basis of "local" rates, although those rates are considerably higher than the prevailing rates in this community.
[5] However, plaintiffs' argument does suggest a possible cheaper alternative of trying cases 0907 i.e., by asking the court to appoint an expert witness. See McKinney v. Anderson, 924 F.2d 1500, 1510-11 (9th Cir.) vacated on other grds, 502 U.S. 903, 112 S.Ct. 291, 116 L.Ed.2d 236 (1991).
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 </s> 56 F.Supp.2d 1212 (1999)
Oliver BROWN, et al., Plaintiffs, and
Charles and Kimberly Smith, minor children by their mother and next friend, Linda Brown Smith, et al., Intervening Plaintiffs, v.
UNIFIED SCHOOL DISTRICT NO. 501, Shawnee County, Kansas, Defendant.
No. T-316.
United States District Court, D. Kansas.
July 27, 1999.
1213 *1213 Richard E. Jones, Topeka, KS, Christopher A Hansen, American Civil Liberties Union, New York, NY, for Plaintiffs.
Dan Biles, Gates, Biles, Shields & Ryan, P.A., Overland Park, KS, Charles N. Henson, K. Gary Sebelius, Anne L. Baker, Wright, Henson, Somers, Sebelius, Clark & Baker, LLP, Topeka, KS, Carl A. Gallagher, McAnany, Van Cleave & Phillips, P.A., Kansas City, KS, Charles D. McAtee, Schroer, Rice, P.A., Topeka, KS, Robert T. Stephan, Lenexa, KS, for Defendant.
MEMORANDUM AND ORDER
ROGERS, District Judge.
This matter is before the court upon the motion of defendant, Unified School District No. 501, for a declaration of unitary status and order of dismissal. Plaintiffs do not oppose the motion. Defendant has recounted the history of this litigation in its motion. This history is also reviewed in other published opinions. As the facts relevant to this motion have been stated in prior pleadings or opinions and do not appear to be in dispute, the court shall not unduly lengthen this order with a detailed recitation.
After reviewing the parties' briefs as well as the annual reports submitted by defendant, the court shall grant defendant's motion.
The United States Supreme Court has stated that before declaring a school system unitary, a district court should consider several factors including: whether there has been full and satisfactory compliance with the court's decrees for a reasonable period of time; whether the vestiges of past discrimination have been eliminated to the extent practicable; and whether the school district has demonstrated a good faith commitment to executing the court's decrees as well as the law and the Constitution. See Missouri v. Jenkins, 515 U.S. 70, 87-89, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995); Freeman v. Pitts, 503 U.S. 467, 486, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992); Board of Education v. Dowell, 498 U.S. 237, 248-50, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991).
This case was remanded to this court by the Tenth Circuit to excise the vestiges of past intentional racial discrimination which remained in student, staff and faculty assignments. 978 F.2d 585, 593 (10th Cir. 1992). Other aspects of the school district's operation, such as transportation, facilities, and extracurricular activities, were determined to have no remaining traces of prior discrimination.
To comply with the court's mandate, a remedial plan was adopted and executed. It is undisputed that since the 1994-95 school year, staff and faculty assignments have followed guidelines which have prevented any school from being identified as a majority or minority school on the basis of the race of its faculty and staff. As to student 1214 assignment, the plan established a standard requiring that the *1214 majority and minority student population at each elementary school, middle school and high school be within 15% of the majority and minority percentages

for all elementary school, middle school, and high school students in the district. It is undisputed that since the 1994-95 school year, this standard has been satisfied at all middle schools and high schools. It is also undisputed that since the 1996-97 school year, this standard has been satisfied at all elementary schools. In addition, defendant has carried on multi-cultural education programs for students, faculty and staff in the district.
Defendant has announced its continuing commitment to diversity and intolerance of discrimination. The governing board and officers of defendant include minority members. Defendant has stated that it has no ambition to dismantle the integrative techniques of the remedy plan, other than to change the operation of the gifted students program. This change is predicted to have an insignificant effect upon defendant's integration efforts.
Before concluding, the court wants to express our gratitude for the good faith and professionalism exhibited by both sides in this litigation. After careful consideration, the court has no reservation in finding that: defendant has complied in good faith with the mandates of the court over a reasonable period of time; the vestiges of past discrimination in the school district have been eliminated to the extent practicable; and defendant has demonstrated a good faith commitment to the law and the Constitution which presages no future need for judicial intervention. Accordingly, the court grants defendant's motion for a declaration of unitary status; the court ceases further supervision of defendant stemming from past mandates in this case; and the court directs that this case be closed.
IT IS SO ORDERED.
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 </s> Brown v. Board of Educ. of Topeka, Shawnee County, Kan., Not Reported in F.Supp....

1994 WL 114001 Only the Westlaw citation is currently available.
United States District Court, D. Kansas.
Oliver BROWN, et al., Plaintiffs, and
Charles and Kimberly Smith, minor children, by their mother and next of friend, Linda Brown Smith, et al., Intervening Plaintiffs, v. BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS, et al., Defendants.
No. 51–316–RDR. | March 30, 1994.
Attorneys and Law Firms
Richard E. Jones, Jones & Jones, Topeka, KS, Christopher A. Hansen, American Civ. Liberties Union, New York City, Victor A. Bolden, ACLU Nat. Legal Dept., New York City, for plaintiffs.
Dan Biles, Gates & Clyde, Chartered, Overland Park, KS, Charles N. Henson, K. Gary Sebelius, Anne L. Baker, Wright, Henson, Somers, Sebelius, Clark & Baker, Charles D. McAtee, Schroer, Rice, P.A., Carl A. Gallagher, Office of Atty. Gen., Robert T. Stephan, Atty. Gen., Topeka, KS, for defendants.
Opinion
MEMORANDUM AND ORDER
NEWMAN, United States Magistrate Judge.
*1 Now pending before the court are the following motions:
1. Plaintiffs’ Notice of Motion to Compel Discovery and for Costs (doc. 367)
2. Plaintiffs’ Notice of Motion to Compel Discovery (doc. 389)
Plaintiffs seek an order compelling defendants to respond to plaintiffs’ Interrogatory Nos. 22, 23, 24, 25 and 26 of the Fifth Set of Interrogatories and plaintiffs’ Sixth Set of Interrogatories. Defendants have filed their responses. Plaintiffs have filed their replies.
The court has reviewed the requests and the memoranda of the parties and is now prepared to rule.

The applicable provision relating to the scope of discovery is Fed.R.Civ.P. 26(b)(1) which provides:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. (Emphasis added.)
Relevancy is to be broadly construed for discovery issues and is not limited to the precise issues set out in the pleadings. Relevancy, for purposes of discovery, has been defined by the United States Supreme Court as encompassing “any matter that could bear on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Discovery requests should be considered relevant if there is any possibility that the information sought is relevant to any issue in the case and should ordinarily be allowed, unless it is clear that the information sought can have no possible bearing on the subject matter of the action. See Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121 (M.D.N.C.1989); Morse Diesel, Inc. v. Fidelity & Deposit Co. of Maryland, 122 F.R.D. 447 (S.D.N.Y.1988). Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. Hickman v. Taylor, 329 U.S. 495, 507 (1947).
The court also considers the Memorandum and Order of December 3, 1993, wherein United States District Judge Richard D. Rogers limited the issues for determination in this case to consideration of a remedial plan addressing the vestiges of student and faculty/staff assignments. Judge Rogers specifically held that “there is no direct mandate to consider a remedy for or to seek out alleged vestiges of de jure segregation in educational performance, disciplinary outcomes or classroom assignment.” Therefore, only discovery addressed to student and faculty/staff assignments is reasonably calculated to lead to the discovery of admissible evidence.
Fifth Set of Interrogatories Nos. 23 and 24
1

Brown v. Board of Educ. of Topeka, Shawnee County, Kan., Not Reported in F.Supp....

Plaintiffs seek information concerning the selection and racial composition of students involved in the vocational training programs administered by Unified School District No. 501. Defendants object to Interrogatory Nos. 23–24 on the grounds that the information sought is irrelevant and that the interrogatories are not limited to a specific time period.
*2 The court finds that the information sought by Interrogatory Nos. 23 and 24(a), (b) and (c), is reasonably calculated to lead to the discovery of admissible evidence. The court, however, limits the time period to the school years from 1986–87 to the present. Defendants shall provide an answer to Interrogatory Nos. 23 and 24(a), (b) and (c), for the stated time period within 10 days of the date of the filing of this order. The court finds that the information sought in subsection (d) of Interrogatory 24 is not relevant and sustains defendants’ objection.

Interrogatories Nos. 2–33 The court finds that the information sought by the remaining interrogatories in issue is not reasonably calculated to lead to the discovery of admissible evidence concerning the issues in this case. Therefore, defendants’ objections as to these interrogatories are sustained.
In light of the court’s ruling herein, plaintiffs’ request for costs is denied.
In summary, Plaintiffs’ Notice of Motion to Compel Discovery and for Costs (doc. 367) is granted in part, overruled in part and Plaintiffs’ Notice of Motion to Compel Discovery (doc. 389) is overruled in its entirety.
Copies of this order shall be mailed to all counsel of record for the parties.
IT IS SO ORDERED.

	
  
Fifth Set of Interrogatories Nos. 22, 25, 26; Sixth Set of

2

 </s> .

~ I

I.

DOCKET
TlTLE OF CASE

ATTORNEYS

OLIVER BROi-lN, et 801.

* v.

*Intervening pltfs 11/29/79

BeARD OF EDUCATION OF TOPEKA, SHAWNEE
COUNTY, KANSAS, AND KENNETH McFARLAND,
SUPERINTENDENT OF SCHOOLS OF TOPEKA,
KANSAS, and FRfllll< WILSON, PRINCIPAL OF
SUMN¥;R ELDtENTARY. SCHOOL
** ADD L DEFTS, 06/13/80 *State of Kansas *Dismissed 10/10/79

For PlaintiJf: Eledsoe;-.scott,
SCQtt_and_Scott~_410_Kans~~_AY~
XQ?~kli1.7 _"an sas
_Tb~gQQd_ija~5bal1
•• _lQZ_~est_4J_St _N.Y._36~_tl~Y / Eabe~t_L._Ca~e~._Jack_Q~~~uQ
,
,/
For Dejendant:Le~_Ma~qQQg~n
George~_Bre~ster_
Colum~ian~i1diDg_
__ _ ~opeka'l-Kansa.s

Bawis of action: Federal Question - Penaanent injunction and restraining order to ndmit negro children to whi te school

V~i#,A1~lawell, for Bd. of Educ

James-~ Charl es Henson

-N-.-.En§land..Bldg. 1300 Merch ants

Topeka, Kansas 66612

BI

Jury trial claimed by : 19

-Ha:M-J:d..s.r-Ii!a-~ End-FtO'or

*bt'j"".- -Gen-J:..- - -~ttftS-ttS- -d\:te te ttt1- -6'

'"

TT

_ _""

,1. --~r;;.--~~~l.~

DATE

PLAINTIFF'S ACCOUNT !_R_E_CE_I,VE_D_I_D_IS_B_U.RS_E_D-!~_DA_T_E_I DEFENDANT'S ACCOUNT

RECEIVED

DISBURSED

2-28-51
4-20
10-1-51 1O-25-5l

Chas.E. Beldsoe~15 00

U.S. Treas. T-14

Charles s. &cott

5 00

Charles S. Scott

19 ]0

1955 I~ 15 00 9-12 Board of Education ~ 1390 39
9-29 arold Pittel1 V-I04 10-8 Charles S. Scott

6.25

1952

V-l41

Jan. 11 U.S. Treas.

T-IO

23t30

$1390.39

I I

I
I
!

ABSTRACT OF COSTS

TO WHOM DUE
Reporter's Fee ClerkI a fee Marshall s fee Atty. Fee Supreme Ct. Coats

AMOUNT

6[.25

.2358~f0300

I
I

20.00 I
1.300 84 I

Hl,.390.39 .

I
RECEIPTS. REMARKS. ETC.

u. S• .;oVERNMEfiT PRINTIN!; OFFICE:

16---4.26~1

. ..

Brown v. Board of Education

USDC No. T-316

USCA No. 87-1668

Attorneys of record at USCA as of 4/27/92:

- Christopher A. Hansen American Civil Liberties Union 132 W. 43d New York, NY 10036 212-944-9800
. Richard E. Jones 1503 SE Quincy Topeka, KS 66612 913-235-3961

William Bradford Reynolds David M. Thompson Department of Justice Criminal Division, Appeals Section 10th & Pennsylvania, NW Washington, DC 20530 202-633-2855

Gary SebeHus Ann Baker Charles Henson Davis, Wright, Unrein & McCallister 100 E. 9th Street, 2d Floor Topeka, KS 66601 913-232-2200

Dan Biles Gates & Clyde 10990 Quivira, Suite 200 Overland Park, KS 66210 913-661-0222

Robert T. Stephan Carl A.Gallagher Office of the Attorney General 301 W. 10th Street Topeka, KS 66612 913-296-2215

Charles D. McAtee 115 SE 7th Topeka, KS 66603 913-357-0333

~

, .

JC lilA ,<ev. 1175)

PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET I DEFENDANT

Oliver Brown, et al

Bd of Ed. Topeka, Shaw Co., Kansas

;
DATE I

I
NR. I I

PROCEEDINGS

I

I

I
I

INTERVENING PLAINTIFFS:

i
;

I CHARLES and KIMBERLY SMITH,

minor children, by their Mother and next friend,

LINDA BROWN SMITH,

!

DANIELLE THREATT, a minor child,

by her Mother and next friend,

i

JUDA GAINES,

I

j
! SHAWN, TANYA and TARA WOODS, minor children, by their Mother

I i

and next friend, JOYCE WOODS,

I

,

I
I

i CORDELLIA MITCHELL and I CONNIE MAXWELL, minor children,

by their Mother and next friend,

BARBARA MITCHELL,

ARLENE JACKSON, a minor child, by her Mother and next friend, CHARLENE BURKES,

FPI-IIAR-Z·I.·',·501l·15U
I
DOCKET NO. T-3I6
PAGE _OF__ PAGES :
i ,
I
i
i ;
i
I
:

CARLESIA and CHERYL ROBINSON, minor children, by their Mother and next friend, PATRICIA ROBINSIN,
!
RUFUS D. and MICHELLE KELLEY, minor children, by their Father and next friend, I RUFUS KELLEY,
I I
I
JOHN, JACKIE, JOHNNY and VIOLA DAVIS, minor children, by their Mother and next friend, I RUBY DAVIS,

, !
!
I
I

,...
JC 11M ;<ev. 1/75i
PLAINTIFF

Oliver Brown, et al

DATE

! !
NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
Board of Educaiton of Topeka, et al
PROCEEDINGS

FPI-MAR-2·1 •. 78.S0 ... ·153.
DOCKET NO. T-316
PAGE _OF_ _ PAGES i

ADDITIONAL DEFENDANTS

S~~~~E-~U~AS- DISM 06/13/80

~~N- -GAAh±#-,- ~¥ffiNt)R--<*-..:rHE-S1-AfE-GF- -KAN-SA5

add'l deft 06/13/80

DISM 09/30/86;

DOROTHY GROESBECK, Add" deft 06/13/80

KAY GRONEMAN,

Add" deft 06/13/80

RUTHANN OELSNER, Add" deft 06/13/80

& F~9¥9-d~-SRfMES;----Aee!t-eeft-96f~af80 Removed

DALE CAREY,

Substituted 03/28/83, Deft

& HARQ~9-H~-6RfSl;----Aee!t-eeft-Q6f~~f8Q, Removed

ANN KEENER,

Substituted 03/28/83, Deft

MARILYN HARWOOD, Add" deft 06/13/80

d9HN-BERSNER;-------Aea!t-aeft-96f~~f89, Removed &

THEODORE VON FANGE, Substituted 03/28/83, Deft

JIM HIEBERT,

Add "1 deft 06/13/83

DENISE APT., and Add" deft 06/13/80

EVELYN WH !TCOMB , Add" deft 06/13/80

MEMBERS OF THE STATE OF KANSAS BOARD OF EDUCATION, all of their official capacities
Amended 06/13/80

•.,.

,.1-

JC 111}\ ~ev. L 75)

PLAINTIFF

01 iver Brown

DATE

NR.

1979

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
Bd. of Education

FP'-MAR-2·'.·71.S01l·'S3. i
I DOCKET NO. T-316 I PAGE _OF__ PAGES

LIST OF ATTORNEYS

PROCEEDINGS

v Richard E. Jones ~-KiHlSitS'"-Avent.te- 6O-5-5:-E-.-~t2i-n-cy;-Strite:. 1503 S. E. Quincy

T(Aoppepklaic, aKntasn)$as 66612 (913) 235-3961

Charles Scott, Sr. and Charles Scott, Jr. 724~ Kansas Avenue Topeka, Kan$as 66603 (Applicants)

Joseph D. Johnson

xooax)GXj~Jt~)¢~OP;Q~E(MWX Col umbi an Tit1 e Bui 1di ng

Topeka, Kan~as 66603

Suite 323, 820 Quincy, Topeka, Kansas

(Applicants)

66603

._ Christopher A. Hansen

- &rui:-e-.J..-..£-on-i.&-,.-.Jr... , Nonres i dent Atty. (See_below)

Nat'l. Legal Director of the American Civil Liberties Union

-2-2-.£-a-s-t-4Q.tfl-..£.ti1eet 132 W. 43rd

New York, NY ~~~ 10036

(212) 944-9800

!;.--R-k~-l~,-~i-den--e-"it"~ty (Sent to Director of Above)

(same address as Bruce J. Ennis)

... "'Charl es Henson & Gary Sebe1 ius (primarily Gary) , Ann Baker i~OO t4ereflaftt5-Nu~~-~u~-B+e~ 100 E. 9th St., 2d Floor Topeka, Kansas ~- 66601 913-232-2200

Dan Biles

~~xVOO<~~x ~ Dan Biles

~>OdX~

..

GATES & CL.YDE 10990 Quivira, Ste. 200

modo&"booruo~~ooo&<~'l)C)(~lx~ ~800 CoHege B1 '+'6. , .£t:H-t~.~4Q

~~o4~o~x~

Over1and Park, Kansas ~211 66210

(State of Kansas)

913-661-0222

-~a~eA-A~-N~eAetS- Carl A. Gallagher, Robert T. Stephan Assistant Attorney General Kansas Judicial Center 301 W. 10th St. Topeka, Kansas 66612 (913) 296-2215 State Board of Education (J0 hn Car1in, St-e:te- -fffie-r-d- -of- .fd.t.icttt-i-o-n-)

I.jo. :--;'16 - Oli"ler '!JrowI1, et al VS. Bom'c of Ec.uC!1.tlon of :::J"Jel:o.:, 3h'i.'\mee "';oun~~~',et

I."

, I

OATE
1951

FIL.INGS-PROCEEOINGS

_ _ _ C_LE_R-K-'S-F,E-E_ S _ _ _ 1\'

AMOUNT REPORTEO IN

PLAINTIFF

, - - - - -I DEFENDANT

EMOL.UMENT RETURNS

l-foeb •.28 i

n5 00

.".c-uI.:l·sr. 1 "I Order for service, etc. entered Mellott-J I At"L€:sted copy of order ,:i th eODies for ser,rice issued

to Marshal; Certifica.t-3 of service filed. (Clerk)

I

Mar. 2 Copy. of com~)le.int ~d. or~er tranSI:litted registered r.:e.i1

3-Mar. 5

1 to t!le Governor rna tl1e l'_ttorney General for the St::te f
KE1nsss

I Order of the Chief Judge of USCA designating Judge

I

Huxman, Judge Mellett and Judge Hill to constitute a.

three ;udge court; Certificate of service filed. (Clerk)1

Copy of order and complaint trs.nsmi tted to each cf the !

4-Mar.

above three judges.
Ii Copy of the order Ir.ailed to attorneys for plaintiff Governor and Attorney General and each of the defendants.
I9 I Summons r;turned by the Marshal and filed: Kelsey Petro, President of the Board of Education of Topeka,

i Shawnee County served personally on March 1, 1951.

Frank Wilson served personally on March 1, 1951

Kenneth McFarland served ersonal1y on March 5, 1951.

i i

Fees: $6.00

5-Mar. 91 Certified copy of Order returned by, the Marshal and

filed. K<;lsey Petro, Frank Wilson, and Kenneth

McFarland served personally at Topeka, Kansas on

Marc!j, 5, 1951.

FeeS: S6.00

6-Mar. 22 Notice of plaintiffs' ~ended complaint filed.

7-Mar. '.22 Amended cOCl?laint filed.

8-Apr. 13 Motion for additional time to plead filed.
9-Apr. 16 Order granting until May 15, 1951, fordefts. to answer

lO-May l~
ll-May 16

or otherwise plead. (Human-J)
Defendants' motion for a more definite statement and to '
strLlte filed. Affidavit of service filed~ Certificate of service filed.

( Clerk)

Hay 25

At Topeka, Hill, Human & Mellott-J; denied except as to
paragraph which is to be amended; pltf given 5 days to '
amend paragraph 8 and deft. to have 5 days to plead or

10 days to answer.

12-!-1ay 29 Amendment to paragraph eight of the amended com!-llaint

13-Jun

fil~.

:

41 Order statL~g that hearing is set for June 25, 1951, at!

!
I

Topeka and requesting copy of same be sent by registerJ

ed mail to Governor and Attorney General for the State i

of Kansas entered.

(Me110tt-J)

:

Jun 5 Copy of above order mailed to Governor and Attorney

General by registered ma.u at 10:00 A. M.

14-Jun 5! Certificate of service filed; copy of order mailed to

I I

counsel for pltf and deft.

I 15-Jun 7 1 Answer of defendants to a:nended complaint as amended in paragraph 8 t..1.ereof filed.

'

June 11: At Kansas City, Jlellott-J: Attorney General Fatzer app~rs
before the court and lodges oral motion on behalf of S~te
of Kansas to file intervening pleadings wi thin five da •

Upon consideration of the oral motion Court allows said motiop.

Reporter's transcript of proceedings to be furnished co~sel '

counsel of record; i t.1aII to be taxed as co sts in case I

!

... " D. c. noA.

---------------------------------------Page 2 CiVil No. T-31

CATa:

FIUNGs-PROCEECINGS

CLERK'S FEES
i - - - - - - r - - - - - - - l 'i~

PLAINTIFF

1

l6-Jun 15 Separate answer of the State of Kansas filed.

17~un 1 Certificate of service filed. (Clerk)

1B-Jun 2 Praecipe for subpoenas filed; subpoenas issued to Marsha

19-Jun

Defendants' request for stipulation filed.

20-Jun

Defendants' supplemental request for stipulation filed.

21-Jun

Praecipe for subpoena for one witness filed.

~2-Jun 2 , Praecipe for subpoenas for 8 witnesses filed.

2;~un

Requested stipulations by plaintiffs filed.

Jun 2 At Topeka, Hwanan-Mellott-J; pre-trial proceedings held.
and Charles E. Bledsoe, John Scott, Robt. L. Carter.an Jack Greenberg (both of N. I •. City) appeared tor p1tf.;

George Brewster and Lester Goodell appeared for deft.;

Chas. H. Hobart and Willis McQueary tor State of Kansas

24-Jun 2 25-Jun 26

Return on subpoena to Dorothy Crs,lo,.tord filed; personal service at Topeka, Ks., on 6/23/51, by Stanley L. Smi
1-1arshal's return on subpoenas to Kelsey Petro, Oliver
Brown and Zelma Henderson. filed; residence service on

June 22, 1951, at Topeka, Ks. Marshal's return on Ken neth McFarland filed; personal service on June 22, 195 ,

i I

26-Jun 26

at Tope..''ta, Ks.

FEES: $.2.00

I Marshal's return on 4 witnesses filed; Lena Car;>er, Sa . e Emanuel and Lucinda Todd served personally on June 22,

1951, at Topeka, !Cs.; Silas Fleming served by residenc

I
j

on 6/22/51 at Topeka, Ks.

FEES: $2.00

27-Jun 26 Marshal's return on Rev. Bernard E. Hurd filed; residen e

service on June 22, 1951, at Topeka, Ks.
FEES: l..:2Q. 28-Jun 26 Marshal's return on 4 witnesses filed; personal service

on !.farguerite IDnmerson, krlene Watson and Shirley Hod -

son on June 22, 1951, at Topeka, Ks. Residence servic
on J. V. Richardson bn June 22, 1951, ~t Topeka, Ks.

FEES: $2.00

Jun 25 At Topeka, Huxman, Mellott and Hi1l-J; case on trial to

the Court and 20 witnesses sworn.

Jun 261 At Topeka, Hwcman, Mellott and Hill-J; case on trial an

I 6 witnesses sworn, counsel argued case orally and pItt
given 15 days to file briefs; deft. given 20 days to

file briefs.

.

261 29~un

Transcript of proceedings which took place at Kansas Ci y

before Judge Mellott on June 11, 1951, when the Atty.

General (Fatzer) appeared on behalf of State of Kansas filed. (Harold Pitt.ell) REPORTER'S FEES: ~.~2 30-Jun 26 Marshal's return on subpoenas to 3 witnesses filed; C.

Grimes served personally on June 22, 1951, at Topeka, _s.;

residence service on Thelma Mifflin and A. H. Saville

on 6/22/51 at Topeka, Ks.

FEES: $4.50

'

Marshal's return on subpoenas to 3 witnesses filed; resi-

dence service on Mrs. David Neiswanger and Marlin Casar

on 6/22/51 at Topeka, Ks.; Kennet~ Hobbs not found.

1 32~un

FEES: $1.00 Marshal's return on subpoenas to 2 witnesS;S-fl1ed; per

sonal service on Charles R. Bennett on 6/22/51 at Top a,

Ks.; residence service on Rosie Steele on 6/22/51 at

J Topeka, Ks.

FEES: tl.OO

33~ul 2 Proposed findL~gs of fact filed; by plaintiffs.

31 Tn J 23 plaintills..!.-brief fil ed.

_.1

t, '

t -'-

~; V"Il No

T-'U6

Page 3

16--12715&-1

I

I C")'E
f,".".".f·.J,

FILINGs-PROCEECINGS

CI-ERK'S FEES

i PI..AINTIFF

DEFENDANT

AMOUNT REPORTED IN EMOLUMENT
RETURNS

ul 23 Brief of defendants filed.

1

ul

24 Defendants' requested findings 0:' fact and conclusions of law filed; copies of plaintiffs' briefs, defendants' brirfs,

,..
i

i
1
I

plaintiffs' proposed finding of fact-proposed conclusion

! I

i
, I
I
I
I

1

,i of law, defendants' requested finding s of fact and con-

' elusions of law f'umished to Judge Mellott and Judge Hil[

\i on 7/2h/5l.

31 :,7-Aug

Finding s of fact and conclusions of law entered.

!

(Thumsn, Hellott, Hill - J)

~a-Aug .310Pinion entered. (Human, Mellott, Hill-J)

-'9-Aug .3 Final decree finding for the defendants entered.

(Hwanan, Mellott, Hill - J)

Counsel served opinion, findings of fact and decree.

""o-Aug 27 Order entered to correct certain typographical errors

made in the certified record filed in the. Court. Copie (Certified) mailed to Brewster ~d Goodell, Scott, Bled e,

Scott and Scott and Harold Pittell, Court Reporter.

( Huxman-J)

-1-Oct. 1 Petition for Appeal filed on behalf of plaintiffs 2-0ct. 1 Assignment of Errors and Prayer for. Reversal filed

$ 5! 00 I

~.3-0ct. 1 Order allowing appeal entered :.4-Oct. 1 Citation on Appeal issued and filed

(Huxman, J)

I
I "

(Huxman, J)

I

~5-Oct. 1 Cost BOnd approved and filed ($500-Fid.&Dep. Co. of Md.);

I
I

~6-0ct. 1 Statement as to Jurisdiction filed _-
:"7-Oct. 1 Statement required by Par. 2 Rule 12 of Rules of Supreme

I

Court of the United States filed

I

!;.8-Oct. 1 Acknowledgment of Service by Couns,el for: Appellees filed

5 ~9-0ct.

Pr~ecipe filed

I
, I
I
I

161 ~oJ-0ct

Transcript of proceecings June 25 and 26, 1951, filed

I ,I-Oct. ?OITren3cri~t of Pr~-Trial Conference filed
;:;-Jov. 5 Orce:- extenciing time to file ana. ciocket recorci on appeal

i
!,I

t-.'lenty cia.y~ from l'iovember 9, 1951, ent'ereci (Huxman, J .1)

:'lov. 14 Record on Lppeal prepared a.na. transmitted to Supreme coui'

19~2

of the United States

j ?eb 22 J. S. 6 card made.

!222

.

1

3-Jun,30 II Handate of the Supreme Court of the United States with

i
I
IS 1.30
i
I

Opinions of the Court filed - District Court revereed

and cC'.use remended. Plaintiff' for recover costs from

I defendant

Fee·endorsed $~OO.

'4-.';'Ug 2 I?laintiffs' I-lotion For Hearin,:; 0·' Formulation Of Decree d

I Judgment filed.

55-Aug 25 ~er calendaring rna~ter for hearing at Topeka, Kan~as, ntur~dar'

: ::,e'9~ember ,15, 1955, at 9: 30 a.;:J.. entered (Hu:xman-Ael10t1-H~lID

! Co'O~es ma~led to all counsel.

'

.

Sent 8 ! Sub;oena duces tecum issued. C-Jitness for "Claintiff~

-

i

-

-

56-Sen 101 Subnoena. duces tecum returned and filed. ':!ende11Godwin

:

. : s~rved 9-9-55.

FEE: .50 (pd. b'l plaihtif )

.3ep 15! ·.'.,t Topeka, Huxman-r';ellott-Hil1: 0" formulation of decree

i

I !I 2.nd .~udgr.1ent, plaintiff to subrr.it brief idthin 20 d:.l.ys
. defendant to submit reply bri! 20 da:r.s t~ereaf~er.

' ;

~":'-Oct 51' ::er..orandu::-:. in sunnort or' nlaintffs' claim filed. (Copies I

I': :: -Cct >-',

:-o.ailed to Judr~- ~u..\l1lan, - :~ellctt" i:il1) :1der nf disbursal e",-tered

I Huxman-J

c_(\ct ~l':'"

·ro +-I~

.,.... ..... _ , _ -. . .~ .&:".:1'

1""."""'" (~ ~,.... T.. ,"':_ co .. I

I
lSj30
I I I
I I
I I I I I
I I
, 1
I

:.:......!... ..
C S. J4,O't'EI!:H"ENT '''INTiNG OHler

• ,

• t
D.C.ll0A

0J:iver '3rmm ,rs. 3:i. of ?ducati::n

Page 4

T-'3l6

1«1-

DATE
1955 60-0ct 28
Oct 28

FIUNG5-PROCEECINGS

CLERK'S FEES

AMO

~------~------~ ~~L~

PLAINTIFF

RETt:

C~inion and Order, in favor of school board, retaininrr I

I !

,;urisdiction until full compliance ,·lith manda.te,

entered

Huxman, l-~ellott, Hill

Copies to all cou..'"lsel, j'.1dges

1974

61-Aug 27 Motion of pitf in T-5430 to consolidate this case with 7~-160",!C5 Clnd

1975

T-5430 with memorandum in support of motion of conso idat~on ~ttachEd
I

62-Jul 1 At Topeka, Temp1ar-SRJ-Assigned: Pltf's motion to consclidatl T- 430

with this case - taken under advisement.

1979 63-Aug 22 64-Aug 22 65-Aug 22 66-Aug 22 67-Aug 30 68-Sep 4 69-Sep 21
70-0ct 10 71-0ct 15
72-0ct 17 73-0ct 19 74-0ct 31 75-Nov 6 76-Nov 9 77-Nov 9

MOTION of applicants to intervene as named pltfs.

~

IMMEOMTOIORNANDoUfM

of pltfs in intervening

support pltfs for

I the Supreme Ct. Mandate to

of motion to intervene as ramed danesoergdreegr actoemtmhaendSincghocoolsmpil~ianthceel

plt wit,

s.

case of Brown v. Board of Education of Topeka, 349 uls 294 i

MEMORANDUM of intervening pltfs in support of motion to cpmmand

compliance.

"

AMENDED MOTION of Applicants to intervene as named pltfs. ORDER-ENTERED-ROGERS-J: 'Hearing-"' 9/21/79 at 8:00 to

establish briefing &hrg schedules for pending motio~s

cc to counsel

At Topeka, Rogers-J: pltfs--pending.

Applicantsl Intervening

mplottfiosnl

to intervene as ramed motion for order commcndirg

complaince with Supreme Court t~andate--pending. Amerded noticn

of applicants to intervene as named pltfs--pending. Deft~ to

file response to applicant's motion to intervene wi~hin ~weEks,

Applicants(pltfs) may respond 2 weeks thereafter. Hearin se1

11/9/79 at 9:00 a.m. If necessary, State of Kansas 0 su it J/E to parties requesting they be dismissed from further proc~edings.

ORDER-ENTERED-ROGERS-J: Deft, State of Kansas dismissed as a I [

I party deft in any further proceedings in the captiored matter cc to counsel.

ORDER-ENTERED-ROGERS-J: Motion of UFD No. 501 granted &shall hav

until 10/17/79 to file response to applicants' motic n to intervene

cc to counsel. BRIEF of USD No. 501 in opposition to intervention. Reporter's Transcript of Proceedings heard on 9/21/79.

I J

ORDER-ENTERED-ROGERS-J: Proposed intervenors have until 11/6/1t9 t file reply brief to deft's brief in opposition to in~erve1tiOl' cc to counsel.

BRIEF of Applicants in REPLY to deft's brief in oppositicn to , intervention

MOTION of Richard E. Jones to admit nonresident attys

AT-TOPEKA-ROGERS-J: Intervening Pltfs Motion to Admit Ncn-ReSr"denr

"

Attorneys - Sustained.

I

Applicants Motion to Intervene as Named Pltfs - uta, Court to ssue an Olrder

I
-continued-

I

I I

I

I !I I

· '

Page 5

IG--4275G-

DATE

FILINGS-PROCEEDINGS

Cl.ERK'S FEES

t

AMOUNT

f - - - - - - - - - i1l

REPORTED I EMOl.UMEN'

FlJ>.INTIF'F'

t::EI"ENCANT 1 RETURNS

1979 78-Nov 29

I !

ORDER-ENTERED-ROGERS-J:

I
Motion to intervene as named PlltfS

be, & is hereby, granted.

I

II cc to c o u n s e l , 79-Dec 10 I MOTION of USD #501, to amend interlocutory order

:!

i!

i

80-Dec 10 BRIEF of defts in support of motion to certify under 28 J.S.C.A., 1292(b)

II
81-Dec 11 Certificate of Correction by defts of mail ing

I.!

82-Dec 21 I' OBJECTION of pltf-Intervenors to motion to amend interlo l utory, or~er

83-Dec 28 ,ORDER-ENTERED-ROGERS-J: Deft's motion for certificatio pursuant!to

28 U.S.C. Section 1292(b), is denied

i

cc to counsel

I

1980

!

84-Jan 2 ORDER-ENTERED-CROW-Mag: Partial pretrial conference of 01/02V80

85-Jan 24 86- Feb 28 87-Mar 26
88-Mar 27 89-Mar 27 90-Mar 27 91-Mar 27 92-Mar 27 93-Mar 27 94-Apr 9
95-Apr 11

cc to counsel

i

I

Pltfs-IntervenorsI notice of service of interrogatories ORDER-ENTERED-CROW-Mag: USD#501 has unti 1 03/26/80, ~

'
i

I

:

to answer or object to interrogatories by intervenin pltf$. I '

ORDER-ENTERED-CROW-Mag: USD #501 has until 04/26/80 to answer. or!object

to i nterrogatori es & respond to requests for productilon by i nterveni mg

pltfs cc to counsel MOTION of pltfs for class certification

I

I
l

i

MEMORANDUM of pltfs in support of motion for class cert ficatlon

i
i

MOTION of pltfs to add Governor &State Bd. of Ed. Memb rs aSldef s

I

MEMORANDUM of pltfs in support of pltfs· motion to add overnmr &Bd. of Ed. Membtrs

MOTION of pltfs to revise order dismissing State of Kan as as!def

i

MENORANDUM of pltfs in support of motion to revise orde dismlssi g deft

I

MOTION of deft USD for addll 30 days to respond to pltf • motnon 0 rev~se rder

dismissing State of Kansas as party deft, pltfs' mot on for clpss i II

certification &pltfsl motion to add Governor &Stat Bd. bf E~. ;

members as defts

I ! I 'i

MINUTE ORDER-ENTERED-Clerk: BY DIRECTION OF THE HONORA~LE RICHARb D. ROGERS:

Deft, USD granted addll 30 days to respond to pltfs· Imotiohf tb i :

revise order dismissing State of Kansas as pty deft,jfor cOassl certiification

& to add Governor & State Bd. of Ed. members as deftj' i i . ,

cc to counsel

; i

I

96-May 22 ORDER-ENTERED-ROGERS-J: Heari ng schedul ed for 06/06/801 reschedu1fl ed for I

06/13/80, 9:30 a.m.

I

i

I'

97-May 30

cc to counsel MOTION of pltfs in

RESPONSE

to

deft·s

objection

to

inter

ogatq.r;e~

;,
& compelling

answe

98-Jun 9 99-Jun 12

BRIEF of RESPONSE

State of Kansas responding of USD #501 to intervening

to plt pltfs'

fs motion to motion for

dd class

Go~erndr
certific

I
atiqn

: I

I I

100-Jun 13 AT-TOPEKA-ROGERS-J: Hearing on All Pending Motions - Pltf's Moti~n forlclass act10n

certification - granted &cert. class shall consist of all bl.ck st~den~a nowt

enrolled or will be enrolled in the future in USD # 01. that no notice to the class is necessary.

The
:

! ~our: t futhIe

r

finds
!

Pltf1s ~1otion to revise order dismissing State of K nsas as Pf,rty Deft'i U/A '

1
I

I ! ! Pltf's Motion to add the Governor of State of Kansa &th' Ka sas State Bd.

of Ed. as party deft - U/A

I

,. 101-Jun

13 1

ORDER RULING ON CLASS dismissing State

oAfCTKIOanNsasMOgTrIaOnNt-eEdN.TERPElDt-fRsOlGmERoSt-iJo:n

ltfsl mot on toirevHse order 0 addlpar ies gtant~d

Jun 20

cc to JS-5 ppd

c

o

u

n

s

e

l

! I

i '

I

!

-continued-

I
;

U, S. GOVEftH'UHT PRINTING OFF'IC!

DC lilA ',Rev. 1175)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

FPI-IIAR-Z.'4. 71·1011·' &3 4
T-316
DOCKET NO. _ _ __

Oliver Brown. et al

I DATE

NR·I

Bd. of Education of Toepka, et al
PROCEEDINGS

PAGE(J_OF_ _ PAGES

A1u9g8018 II 102 'I Certificate of Compliance w/Rule 17(i) by Richard E.Jones, counsel for pltfs
Aug 18 I 103 AMENDED MOTION &MEMORANDUM of pltfs for an order commanding compliance w/Supreme

Ct. 's Mandate to desegrate

Aug Aug

18 18

I I

104 105

MOTION of pltfs to specially appoint server of process ORDER APPOINTING PERSON TO SERVE PROCESS-ENTERED-Clerk:

Sabrina Wells George

Aug 19 II

AtteaSptpeodincteodpy

toof

ser~e
Urder

suAmpmPOoDlSntl&ngamPeenrdseodn

mtootioSnerv&emPemroocreansdsumw/

uspuomnmdonesfts&

amended

motion &memorandum issued to Richard E. Jones

Aug 21 i 106 Certificate of Service by Sabrlna Wells George Special Process Server, served

i I

summons &amended motion &memorandum for an order commanding compliance w/
Supreme Ct's Mandate to Desegrate upon: Governor John Carlin, State Bd. of Ed

membert, Dorothy Groesbeck, Kay Groneman, Ruthann Olesner, Floyd J. Hiebert,

Denise Apt &Evelyn Whitecomb by serving Mr. John Josserand, Asst to Sec. of

: Sep 8

I

ISSeepp

18 25

107 MOTSIOtNatoe f Tdoepf-tekCa,arKlianntsatso, d08is/m1~l/s8s0for insufficiency of serVl.ce of process w/MEMORAN DUM
108 RESPONSE of USD #501 to pltfs' motion in response to deft's objection 109 SUPPLEMENTAL RESPONSE of Unified School Dist. No. 501 to Pltf's Motion in
Response to Deft's Objection

Oct 2 Oct 6
Oct 7

110 REPLY of pltfs to deft's supplemental response
111 MEMORANDUM &ORDER-ENTERED-CROW-Mag: Discovery matters outlined
cc to counsel 112 ORDER-ENTERED-CROW-Mag: Partial pit conf., 10/06/80
cc to counsel

Oct 16 113 MOTION of pltfs for review of order limiting discovery entered 10/07/80 w/MEMO-

I Oct 27

i
I

Nov

6

Ii::: 47

114 MROATNIODNUMoifnUsSDup#p5o0r1t for an enlargement of time to respond to intervening pltfs' motion for revi ew of order 1imiting discovery
115 ORDER-ENTERED-CROW-r~ag: USD #501, has unti 1 12/05/80 to answer i nterrogatori es
cc to counsel 116 RESPONSE of USD #501 in opposition to intervening pltfs' motion for review of
discovery order 117 . MOTION of Unified School Dist. #501 for Enlargement of time of 30 days to

I
I
;Dec 11
;
I
i
, 1981

I 1/4/81 118 : ORDER-ENTERED-CROW-Mag: Deft' s Motion for Enl argement of timei s granted
until January 4, 1981 for response to intervening pltf's interr. cc:to counsel

!Jan 5 119 MOTION of Deft. USD 501 for Enlargement of Time to answer Pltfs' Interr-lst Set

i,Jan 9

120

ORDER-ENTERED-CROW-Mag: Motion of USD #501 for enlargement of time in which to answer Interr. until 2/2/81 is granted

i
iFeb 2 121 i Feb 23 122

t~OT

cc: to counsel of USD#501 for enlargement

of

time

to

answ

intervening

pl tfs'

interrog.

ORDER-ENTERED-CROW-Mag: Deft's Motion for enlargement of time is granted

cc: to counsel

: Mar 4 123 MOT of USD#501 for enlargement of time to answer intervening pltfs' interrog Mar 10 124 MOTION of pltfs for order compelling discovery w/Certificate of Compliance

r~ar 24 125 RESP of USD #501 to pltfs' mot for order compelling discovery &further support

of School Dist's mot for enlargement of time Apr 1 126 ORDER-ENTERED-CROW-Mag: t~ot of USD #501 for an enlargement of time to answer

remainder of intervening pltfs' interrog granted
Application for atty's fees &exp denied'

cc to counsel

t. ,.

.. t

DC·l1lA '
(Rev. 1/75)

PLAINTIFF

OLIVER BROWN. et al

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
Board of Ed.

FP'-IIAR-2.' c· 78· 5011·153 C
I DOCK]T NO. T-316 I PAGE_OF_ _ PAGES

I OATE

NR.

PROCEEDINGS

1981 Se~l 127 I MOT of USD 501 for ext of discovery

Sept 10 128 ORDER-ENTERED-CROW-Mag: USD granted to 10/3/81 to propound discovery req cc to counsel

Oct 6 Oct 30 ov 9 Nov 20 Nov 25

129 i 130 i 131 ! 132
!
!
i 133

Notice of svc of interrog & req for ~rodu6ction bv USD#501 Notice of svc of interrog to Bd. of Ed. Y plt~ M8T of P1tfs for ext :f t~me to ar:swer i ntei-rog by US D #501 ORDER-ENTERED-CROW-Mag: Pltf granted to 01/05/82 to resp to interrog of USD#501
cc to counsel MOT of USD #501 for add'l time to answer or obj to intervening pltfs' interrog

Dec 7 Dec 9 ec 29
1982 Feb.-1-

134 ORDER-ENTERED-CROW-Mag: USD#301 to comply w/Rule 15(a) of Local rules cc to counsel
135 MOT of USD#501 for an enlargement of time to resp to intervening pltfs' 2nd set c interrog. req for production of documents
136 ORDER-ENTERED-CROW-J: USD #501 granted to 01/29/82 to answer or object to 2nd set of interrog & resp to req for production by intervening pltfs cc to counsel
137 MOT of pltfs to enlarge time to answer interrog submitted by USD#501

Feb 4 Feb 5

138 ORDER-ENTERED-ROGERS-J: Pltfs have to 03/08/82 to answer interrog & resp to rec for production by USD#501
cc to counsel 139 ORDER-ENTERED-ROGERS-J: Unified School District 501 shall have until March 30.
to answer or object to interr.-Second Set and respond to the Request for Production served by the intervening pltfs. cc: to counsel

~·1a r 12 ! 140 MOT of pltfs to enlarge time to answer interrog #4-21 ~lar 25 141 ORDER-ENTERED-CROW-J: Pltfs granted to 05/17/82 to resp to USD #501's interrog
4 - 21 cc to counsel Apr 7 142 ORDER-ENTERED-ROGERS-J: USD 501 has to 04/29/82 to resp to interrog 2.7.8 &9 of intervening pltfls interrog. 2nd set & resp to req for production

Jun 1 Jun 1
I
! Jun 1 . Jun 1
Jun 30
Jul 6 Jul 6 Jul 7 Jul 12

!:~ to counsel 143 MOTIUN of pltf to appt special process server

144 ORDER-FOR SERVICE OF PROCESS-ENTERED-Clerk: Celeste Wayne is appt to serve process in this action cc: to pltf's counsel

145 • At~ENDED COMPLAI NT

Summons issued on add'l defts - John Carlin. Gov. and The State of Kansas 146 ORDER-ENTERED-SAC-J: 04/16/82 status conf., discovery deadlines outlined, statu
conf sched for 11/01/82, 9:30 a.m. cc to counsel

147 MOTION of Deft. State Dept of Education to Dismiss and Motion for Protective Ord

148 ,ANSWER of Governor John Carlin to Intervening Pltf's Amended Complaint

149 I Notice of deft John Carlin of service of first set of Interr propounded to inter'

i

Pltfs by deft

.

150 I ORDER-ENTERED-GTV-Mag: USD #501 has to 09/05/82 to resp to lnterrog &request f

production by intervening pltfs

cc to counsel

Oct 21 151 MOT to specially appoint server of process

uct 21

152 ORDER FOR SVC OF PROCESS-Entered-Clerk: Candy A. R. Glenn appointed to serve summons &complaint on add'l defts of 06/01/82
, +' ............,1 +-..c

11 1

~ .,

DC 1UA (Rev. 1175)

PLAINTIFF

OLIVER BROWN, et al

DATE

NR.I

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

FPI-MAR-7·14. 80· 70 M... 3 9,
I
I DOCKET NO. T-316

BOARD OF EDUCATION OF TOPEKA, et al I PAGE LOF__ PAGES

PROCEEDINGS

1982 Oct 22 Oct 27
Oct 29 Oct 29 Oct 29 Oct 29 Oct 29 Oct 29 Oct 29 Oct 29 Oct 29 Oct 29 Oct 29 Oct 29 Nov 1 Nov 5
Nov 10 Nov 12 Nov 16 Nov 22 Dec 1 Dec 3
Dec 3
Dec 15

ISunmons issued to pltf's counsel for svc on adq'l defts. . .
153 ORDER-ENTERED-RDR-J: Deft1s mot to dism susta1ned to d1sm1ss1ng St. Bd. of Ed. as deft. Interrog directed to Bd. need not be answered. Members of St. Bd. ~f
Ed. that have been made defts not dism &shall not be protected from anSWer1n!

ingerrog

cc to counsel

154 Summons returned by Candy Glenn, served summons and amended complaint on

Leslie Kulick, Assistant Attorney General, for Gordon Schultz,10/22/82

155 Summons returned by Candy Glenn, served summons and amended complaint on

Leslie Kulick, Assist~nt Attorney General, for Robert Clemmons, 10/22/82

156 Summons returned by Candy Glenn, served summons and amended complaint

on Leslie Kulick, Assistant Attorney General, for Alicia Salisbury, 10/22/82

157 Summons returned by Candy Glenn, served summons and Amended Complaint on

Leslie Kulick, Asst, Atty Gen., for Evelyn Whitcomb, 10/22/82

158 Summons returned by Candy Glenn, served summons and Amended Complaint on

Leslie Kulick, Asst. Atty Gen., for Harold Crist, 10/22/82

159 Summons returned by Candy Glenn, served summons and Amended Complaint on

Leslie Kulick, Asst. Atty Gen., for Floyd Grimes, 10/22/82 160 Summons returned by Candy Glenn, served summons and Amended Complaint on

Leslie Kulick, Asst. Atty Gen., for Mrs. Kay Groneman, 10/22/82

161 Summons returned by Candy Glenn, served summons and Amended Complaint on

Leslie Kulick, Asst. Atty Gen., for Marilyn Harwood, 10/22/82

162 Summons returned by Candy Glenn, served summons and Amended Complaint on

Leslie Kulick, Asst. Atty Gen., for John Bergner, 10/22/82

163 I Summons returned by Candy Glenn, served summons and amended complaint on

i Leslie Kulick, Asst. Atty Gen., for Kathleen White, 10/22/82

164 l Summons returned by Candy Glenn, served summons and amended complaint on

\ Leslie Kulick, Asst Atty Gen., for State Department of Education, 10/22/82 165 ISummons returned by Candy Glenn, served summons and amended complaint on

166

I

Leslie Kulick, Asst. Atty Gen., Certificate of Compliance by Gov.

for Merle R. Bolton, John C. Carlin

10/22/82

167

i i

MEMORANDUM to answer

&ORDER-ENTERED-RDR-J: Decision denying pltfsl mot
interrog asking information for 10 yr. period prior

to to

compel USD #5C 1950-51 school

. year reversed &remanded for further proceedings by court 12/03/82, 8:30 a.m.

cc to counsel 168 MOT of defts for ext of time to answer complaint on intervening pltfs
169 RESP of pltfs to Carlin1s mot to compel &Answers to Carlinsl 1st set of interrc

170 REPLY of John C. Carlin to Intervening pltfsl resp to mot to compel

171 ' ORDER-ENTERED-RDR-J: Heari ng currently sched 12/03/82 reset for 9: 30 a.m.

cc to counsel 117732:: PSUOPSPITLEIOMNENSTTAALTEMMEEMNOT inof suUSpDooNrot. o5f01Plrtefgsalram1notgionthetoOcpopmrpeeslsive and Unduly Burdensome

Nature of Attempting to compile answers to Intervening pltfsl Interr - First

Set for the 1940-1950 Period

174 i AT-TOPEKA-ROGERS-J: Deft Carlin1s motion for ext of time is granted. Deft

Carlin1s motion to compel is moot. Intervening pltf1s motion to compel is

U/A, Court to issue an order to include discovery deadlines. Deft Board of

Ed. granted leave to file addll pleadins by 12/17/82. 175: ANSWER of Groneman, Grimes, White, Salisbury, Crist, Harwood, Bergner, Whitcomb

Clemons, Schultz & Bolton to Intervenint pltfsl Amended Complaint

-continued-

, 1

• .f

DC lllA • (Rev. 1/75)

PLAINTIFF

OLIVER BROWN, et al

DATE

NR·i

CIVIL. DOCKET CONTINUATION SHEET
I DEFENDANT
I
I BOARD OF EDUCATION OF 'IDPEKA et al
PROCEEDINGS

F'PI-MAR-7·' 4 - 80· 7 0 M·4 3 9
I
I DOCKET NO. T-316
I
i PAGE~OF_ _ PAGE:

Dec 22 i 176 MOT of Bd. Members to join in answers to interrog of deft Bolton

1983

Jan 20 177 MOT of Floyd Grimes, Harold Crist &John Bergner for dismissal as ptys &sub-

stitution

Mar 18 178 AT-TOPEKA-RDR-J: Status Conf - Defts agreed upon Order to be submitted to Cou

USD 501 to submit completed answers to interrog by 06/01/83. Pltfs to submit

answers to defts' interrog by 08/01/83. Deft, Bd. Members' Mot to join in

answers to interrog of Deft, Bolton - Granted. Mot of Floyd Grimes, Harold

Crist &John Bergner for dism as ptys &to substitute new bd. members granted

St. of Ks. to submit an order

Mar 18 179 ORDER-ENTERED-RDR-J: Solution of intervening pltfs' mot to compel answers to

interrog for 1940-1950 time period.

! cc to counsel

Mar 18 180 iPROTECTIVE ORDER-ENTERED-RDR-J: Stipulation of intervening pltfs &USD #501

regarding interrog p,q &r of interrog No. 9 of 1st set for 10 yr period prio

to 1950-51 school year

cc to counsel

Mar 28 181 ORDER-ENTERED-RDR-J: Grimes, Crist &Bergner removed as defts &Dale Carey, Ann

Keener, &Theodore Von Fange substituted as defts

cc to counsel

Oct 19 182 ORDER-ENTERED-ROGERS-J: Status Conf set for November 8, 1983 at 8:30 am

Nov 8 1984

cc: to counsel 183 AT-TOPEKA-ROGERS-J: Status Conf-Parties to submit an Agreed Order

Feb 7 184 Entry of Appearance by Dan Biles and Notice of Withdrawal by Leslie Kulick as

counsel for Defts John Carlin, State Board of Ed. and members

I ~1a r 27

ORDER-ENTERED-ROGERS-J: the intervening pltfs shall have until April 15, 1984

I

to answer the interrogatories previously served by U.S.D. No. 501 cc: to counse1

! '

Apr Apr

19 30

Ii-lay 4

I

I

186 MOTION of Richard E. Jones to Substitute Nonresident Attorney 187 . Certificate of Service of Interrogatories 188 I ORDER-ENTERED-ROGERS-J: Status conf scheduled for May 30, 1984 is cancelled
and rescheduled for June 7, 1984 at 8:30 am cc: to counsel
I

:i~ay 4 189 I ORDER-ENTERED-ROGERS-J: Court permit Susan G. Borge to remove the trial

I
:j~ay 10

transcript for the purpose of photocopying and return by 4:30 p.m. cc to counsel 190 MINUTE ORDER-ENTERED-Clerk: Motion of intervening pltfs to substitute

Christopher A. Hansen for Bruce J. Ennis, Jr. as nonresident counsel is

granted.

cc: to counsel May 11 191 Notice to Take Deposition of Various School District Personnel, 06/07/84

Jun 7 192 AT-TOPEKA-ROGERS-J: Status Conf. Interim Schedule to be submitted by 01/15/84

Parties to submit a Formal Order

Jun 7 193 PROTECTIVE ORDER PURSUANT TO STIPULATION-ENTERED-ROGERS-J

cc: to counse 1

Jun 12 194 ,ORDER-ENTERED-ROGERS-J: Stipulated pretrial schedule outlined

cc: to counsel

Jul 31 195 Certificate of Service

Jul 31 196 Certificate of Service

Jul 31 197 Certificate of Service

:C 11lA .Rev. L 75)
PLAINTIFF
OLIVER BROWN, ET AL.,

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
BOARD OF EDUCATION, et al.,

FPI-lfAR-2·14.7 g·SOM·IS3

,! DOCKET NO. T-316

10 : PAGE

OF__ PAGES

DATE

NR. I

PROCEEDINGS

1984

. Au916 198 :MEMORANDUM AND ORDER-ENTERED-ROGERS-J: meeting scheduled for September 5, 1984

at 9:00 am between the parties and CRS to discuss the CRS mediation process.

cc: to counsel

: Dec 06 199 : Certificate of Service

,Dec 06 200 I Certificate of Service

; Dec 06 201 'Certificate of Service

; Dec 06 202 ;Certificate of Service , 1985

: JarlI5 203 I AT-TOPEKA-ROGERS-J: Status Conf--All P1tfs ' Expert Reports to be furnished

to the defts by 03-01-85. All interrogatories and all other matters to

be completed and furnished by the defts by 03-01-85. Status Conf set for

03/04/85 at 9:30 am

Jan 18 204 ORDER-ENTERED-ROGERS-J: the court hereby directs the defts to complete their

responses to pltfs' interrogatories by March 1, 1985; that pltfs supply

defts with all expert reports by March 1, 1985 and that the next status

conference be held in this case on March 4, 1985 at 8:30 am

cc: to counsel

Jan 23 205 i, Entry of Appearance by Karen A. Nichols as counsel for Defts Carlin, State Board

! of Education and Individual Members

Feb 7 20610RDER-ENTERED-ROGERS-J:

i Status conference is rescheduled for 3-1-85 at 8:30 a.m.

i cc to counsel

Mar 7 ~ 201iAT-TOPEKA-ROGERS-J: Status Conf--all depositions to be completed and Foster/Lamb

reports to be submitted to the court by 09/01/85. Pre-Trial Order to be

issued in September. Court to issue a Short Order

Mar 7 208l0RDER-ENTERED-ROGERS-J: Court directs all sides in this matter to identify

their experts, exchange their experts' reports and complete all depositions

by September 1, 1985. At this time, the court expects the parties to be

prepared to formulate a final pretrial order. It is further directed that

principal counsel for the parties in this case write the court at the first

of each month to inform the court of their progress in meeing this deadline.

cc: to counsel

~1ay 31 209!Notice of Service of Discovery Requests by U.S.D. No. 501 Jun 05 210 Notice of Withdrawal of Karen A. Nichols as counsel of record for deft State

Board of Education Jun 12 211 Entry of Appearance by Carl A. Gallagher as counsel for Governor John Carlin

and Notice of Withdrawal of Karen A. Nichols Jul 02 212 Certificate of Return Service

Jul 02 213 Certificate of Service

Sep 13 214 AT-TOPEKA-ROGERS-J: Status Conf-Pltf to file and Amended Complaint (Title (6).

Case s:t for trial 05/05/86. Court to issue an Order on Guideline regard

Oct 08

. Pre-Trla1 Order; taking ~f depositions, report, ect. 215 Notlce of Request for Productlon of Documents to Intervening P1tfs by Individua11

named defts of The Kansas State Board of Education

Nov 12 216 ORDER-ENTERED-ROGERS-J: All motions for the amendment of the complaint or answer

should be filed by December 9, 1985. A status conference in this case shall

be scheduled for December 13, 1985 at 9:30 am. P1tfs should submit their

factual contentions and 1egla contentions for purposes of incorporation into

a pretrial order by February 10, 1986. Responses to the proposed submission for the pretrial order should be made within 10 days of the submissions.

Dispositive motions should be filed by March 3, 1986.

cc: to counsel

" .,

t '

:::iC IllA

~ev. 1 75)

PL.A.INTIFF
OLIVER BROWN, et al.,

DATE

NR. I

CIVIL DOCKET CONTINUATION SHEET

FPI-NAR-Z.14.7 9·50 N·153 j

I DEFENDANT

I

. DOCKET NO. T-316

'[BOARD OF EDUCATION OF TOPEKA, ET AL. , I

11

: PAGE _OF__ PAGES

I

PROCEEDINGS

1985

Nov 19 217 I MINUTE ORDER-ENTERED-Clerk: that the status conference presently set for

December 13, 1985 is rescheduled for December 4, 1985 at 9:00 am

cc: to counsel

Dec 04 I 218 I Notice of MOTION to Amend Complaint Pursuant to F.R.C.P. Rule 15

Dec 04 219 I MEMO of Law in Support of Pltfs' Motion Pursuant to F.R.C.P. Rule 15 to Amend

i

the Complaint

Dec 04 220 iAT-TOPEKA-ROGERS-J: Status Conf - Defts Allowed to 01/06/86 to Respond to Motion

i
I
II

Amend. Pltf to submit all documents by 01/01/86 to defts. Court Schedule of 11/12/85 remains in effect

1986

!

Jan 06 221 iRESP of Deft John Carlin to Pltfs' motion to amend complaint

Jan 08 2220RDER-ENTERED-ROGERS-J: Defts shall have until January 13, 1986 within which to

respond to intervening pltfs' motion to amend their complaint

,

cc: to counsel

Jan 14 ' 223 iRESP of U.S.D. No. 501 to Intervening Pltfs' Motion to Amend Complaint Jan 14 ' 224 RESP by the Individually-named defts Associated with the State Board of Education

in opposition to Pltf's Motion to Amend

Jan 23 225 Deft USD #501 's notice to take deposition of Dr. Hugh W. Speer on 1/31/86 at 10:00 a.m.
Jan 28 226 Certificate of Service Feb 04 I 227 MOTION of Deft for Dismissal and/or S/J Feb 11: 228 Factual and Legal Contentions of Deft John Carlin Feb l1i 229 Factual and Legal Contentions of Deft Governor John Carlin Feb 11: 230 Supplement to Deft Governor John Carlin's Motion to Dismiss and/or Summary
, Judgment

Feb 20 , Feb 20 : Feb 20
I
: Feb 21 • flar 11 · i·lar 11 flar 11

231 I REPLY of deft Governor Carlin to pltfs' response to deft's motion for dismissal . and/or s/j
232 ! f~HlO of LAW in Opposition to Deft Governor's t1otion for Dismissal and/or summary judgment
233 REPLY MEMO in Support of Pltf's Motion to Amend the Complaint 234 SUPPLEMENTAL REPLY of Deft U.S.D. #501 in Opposition to Pltfs' Motion to Amend
, Complaint 235 iMOTION of Pltf for Leave to Supplement Memo of Law in opposition to deft
Governor's motion for dismissal and/or s/j 236 i SUPP MEMO OF LAW of Pltf in Opposition to deft Governor's motion for dismissal
, and/or s/j
237 ~INUTE ORDER-ENTERED-Clerk: Pltf's motion for leave to supplement memo of law

in opposition to deft Governor's motion for dismissal and/or s/j be and is hereby granted. cc: to counsel

t1a r 11
I j.~ar 13 Apr 08

238 ORDER-ENTERED-ROGERS-J: Pltfs' motion to amend is granted; the trial is
rescheduled for October 6, 1986; pretrial dispositive motions shall be on
file by August 4, 1986; and counsel are dire~ted to submit proposed scheduled for the further progress of this case by March 25, 1986 cc: to counsel 239 REPLY of Deft John Carl into Pltfs' Supp1ementa 1 t1emo of Law
240 ORDER-ENTERED-ROGERS-J: Schedule for the progress of this case

outlined: Counsel may file an appropriate motion for additions,

modifications or r.larifications of this schedule

cc: to r.ounsel

, .

;)C 11lA (Rev. 1/75)
PLAINTIFF
OLIVER BROWN, et al

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
BOARD OF EDUCATION, et al

DOCKET NO. T-3l6 PAGE lloF__ PAGES

I i DATE! NR.

PROCEEDINGS

I 1986 I

i

IMay 15 1241 I Pltfs' designation of fact witnesses

I I May 27 i 242 I AMENDED COMPLAINT
,May 28 I 243 ANSWER of Deft Governor John Carlin to Amended Complaint
I 1 Jun 03 244 ORDER-ENTERED-ROGERS-J: that all defts except deft Carlin, shall

have until June 24, 1986, within which to answer or otherwise

i

plead to intervening pltfs' amended complaint

CC: to counsel

I Jun 20 245 Notice of Service by deft U.S.D. #501 of their third set of

,

interrogatories to intervening pltfs and first request for

admissions to intervening pltfs

Jun 24 I 246 !

ANSWER of the individually-named defts associated with The State Board of Education to Pltfs' Amended Complaint

Jun 24 1 247 I ANSWER of U.S.D. No. 501 to Intervening Pltfs' Amended Complaint

Jun 30 ! 248 i MOTION by the individually-named members of the Kansas State Board

!

i of Education for add'l time to designate fact witnesses

Jun 30 I 249 I MOTION of U.S.D. No. 501 for Add'l time to Designate Fact Witnesses

Jul 29 250 Certificate of Service by Intervening Pltfs of Deft U.S.D. No. 501'

Jul 29 Aug 01

First Request for Admissions to Intervening Pltfs Responses Ther
251 Certificate of Service by Intervening Pltfs of Deft U.S.D. No. 501'
Third Set of Interrogatories to Intervening Pltfs 252 Designation of Fact Witness of Deft Govenor John Carlin

Aug 01 253
Aug 041 254 Aug 04\, 255
i Aug 061 256
!
;
Aug 11 257

REQUEST of Deft Governor John Carlin for Ext of time to file dispositive motions
Designation of Fact Witnesses by Deft U.S.D. No. 501 MOTION of defts for ext of time to file dispositive motions by thir
(30) days Designation of Fact Witnesses by individually named defts associatE
with the State Board of Education ORDER-ENTERED-ROGERS-J: Defts' motions for time to file dispositi
motions shall be granted. Deft Carlin shall have time until August 13, 1986 to file such motions. Defts U.S.D. #501 and the State Board of Education shall be granted time until September ~ 1986 to file such motions. Defts are further granted time until August 18, 1986 to file a list of issues of fact and issues of law for incorporation into a pretrial order. The pretrial stat~

conference previously scheduled for September 26, 1986 is hereb} rescheduled for September 22, 1986 at 10:00 a.m. Finally, the

court shall direct that trial briefs be filed prior to trial.

These trial briefs should be filed by September 26, 1986.

I

cc: to counsel

IAug 14 258 Entry of Appearance by Nancy L. Ulrich as co-counsel for deft

Governor John Carlin

Aug 14 259 MOTION of Deft John Carlin for Dismissal and/or S/J as to Pltf's

Title VI Claims

Aug 14 i 260 MOTION of Deft John Carlin for S/J or Dismissal of Pltfs' Non-Titlt

IAug 18

261

VI Claims Proposed Issues of Fact and Issues of Law of Deft U.S.D. No. 501

IAUg 19 262 Statement of Individually-Named Members of the State Board of

!

Education of Issues of Law and Fact

: l\ug 26 263 RESP of Pltf to Renewed Motion by Deft Governor for S/J or DismissL

of Pltfs' Non-Title VII Claims

Aug 26 264 MOTION of Pltf to Compel Answers to interrogatories with Affidavit

of Christopher Hansen and Exhibits attached

, '
De lIlA (Rev. 1/75)
PLAINTIFF
OLIVER BROWN, et al.,

CIVIL COCKET CONTINUATION SHEET DEFENDANT
BOARD OF EDUCATION, ET AL.,

DOCKET NO. T- 316

1 3 P A G E

OF_ _ PAGES

DATE

NR.

PROCEECINGS

1986

Aug 26 265 MEMO of Law of Pltfs in Support of Motion to Compel answers to

Interrogatories

Aug 29 266 MOTION of Deft U.S.D. No. 501 to Strike Robert L. Crain From Pltfs'

Witness List with MEMO in Support

Sep 03 267 MOTION of Deft U.S.D. No. 501 for Ext of time to file dispositive

motions Sep 05 268 RESP by individually-named defts associated with the State Board

of Education in opposition to Pltfs' Motion to Compel

Sep 05 269 MOTION by individually-named defts associated with the State

Board of Education to Join in Motion for S/J by U.S.D. No. 50l

Sep 05 270 ORDER-ENTERED-ROGERS-J: Court hereby grants an add'l 2 days or

until September 5, 1986 within which to file dispositive motic

I

in this matter.

I

cc: to counsel

Sep 05 271 MOTION of Deft U.S.D. No. 501 for Partial S/J

(Expandable Folder

Sep 05 272 MEMO of Deft U.S.D. No. 501 in Support of Motion for Partial S/J Sep 09 273 Exhibit List of Deft Carlin

Sep 09 274 RESP of Defts Associated with the State Board of Education in

Support of Motion to Strike Robert L. Crain from Pltfs' WitneE

List Sep 09 275 Designation of Trial Exhibits by Defts Associated with the State

Board of Education

Sep 10 276 Designation of Potential Trial Exhibits by Deft U.S.D. No. 501

Sep 12 277 RESP of Pltfs' to Deft USD 501's Motion to Strike Robert L. Crain

From Pltfs' Witness List (Expandable Folder)

Sep 15 278 MOTION of Pltfs for Leave to take one or two short depositions of

State Board personnel with knowledge of federal funding and fc

i

an ext of time to respond to defts' motion to dismiss pltfs'

I

Title VI claims

Sep 16 279 'MOTION of Deft U.S.D. No. 501 in Limine with MEMO in Support

Sep 19 280 MINUTE ORDER-ENTERED-Clerk: motion of pltfs for leave to take one

or two short depositions of State Board personnel with

knowledge of Federal Funding and for an ext of time to responc

I
FILE #7 Sep 19 281

to defts' motion to dismiss pltfs' Title VI Claims be and is hereby granted. cc: to counsel REPLY of Deft U.S.D. NO. 501 Concerning its Motion to Strike Robert

I

Crain from Pltfs' Witness List

Sep 22 282 AT-TOPEKA-ROGERS-J: Deft Carlin's Motion to Dismiss Governor Carli

!

1 I

I

I

in this action-sustained. Pltf's Motion to Compel - sustaine( Defts' Mot1on to Str1ke Dr. Crane as a W1tness - Den1ed. Tr1a. Briefs to be filed by the parties by 09/29/86; ETT: Pltf2 weeks; Deft USD #501 - 2 weeks & Deft St. Board - 2 days

Court to issue order Sep 221283 Entry of Appearance by Carl A. Gallagher as co-counsel for State Bo

of Education and Notice of Withdrawal by Karen A. Nichols

Sep 26 284 RESP of Pltf to Deft U.S.D. 50l's, Motion in Limine

I Sep 29 285 PRE-TRIAL MEMO of Pltfs'

I
I

(Continued)

, '
;)C lllA ,Rev. 1175)
PLAINTIFF
OLIVER BROWN, et al.,

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
BOARD OF EDUCATION 0F 'lDPEKA et al

DOCKET NO. T- 316
I PAGE L40F__ PAGES

DATE

i NR.

PROCEEDINGS

1986
Sep 29 286 ! MEMORANDUM AND ORDER-ENTERED-ROGERS-J: State has a remedial

I obligation in this case, the Court is convinced that the

I
I

Governor should not be directed by the Court to execute a remedy because the Governor is not a state official in charge of

supervising public education and because the Governor has not bee

shown to have engaged in intentional acts which have maintained

segregation in Topeka's schools. Therefore Deft Carlin's motion

to dismiss and for s/j is granted

cc: to counsel

Sep 30 287 TRIAL BRIEF of the Individually-named defts associated with the

I

Kansas State Board of Education

'Oct 01 288 REQUEST of Deft Governor John Carlin for Add'l time in Which to

1

File a Trial Brief

:Oct 01 289 REPLY of Deft Governor John Carlin to P1tfs' Resp to Deft's Motion

1

for S/J on Title VI Claims

Oct 01 290 TRIAL BRIEF of Deft U.S.D. No. 501

Oct 02 291 RESP to Motions by Defts for S/J on P1tf's Title VI Claims

Oct 6 292 ORDER-ENTEREO-ROGERS-J: Governor's nntion for additional time to file a trial

brief is granted until 10-6-86.

cc to oounse1

Oct 07 293 MEMORANDUM AND ORDER-ENTERED-ROGERS-J: P1tfs' Title VI claims are

dismissed as to Governor Carlin: the Governor's motion to dismis~

or for s/j against these claims is granted. The motion for

partial s/j against p1tfs' Title VI claims brought on behalf

of deft school district and the State Board of Education is deniE

cc: to counsel

Oct 31 294 COURT TRIAL-TOPEKA-ROGERS-J: Trial Commenced 10/06/86: 10/20/86:

Deft USD #501 Oral Motion for Directed Verdict at the Close of

P1tf's Evidence-O/R & Denied. Deft State Board of Education's

Oral Motion for Involuntary Dismissal at the close of Pltf's

Evidence - U/A.: 10/22/86: Court O/R & Denies Deft State Board

of Education's Oral Motion for Involuntary Dismissal of the

Complaint. 10/30/86: Pltf's Oral Motion for Leave to present

Rebuttal Evidence by Drs. Crane & Tolbert - Granted. 10/31/86:

Court takes Case U/A, subject to possible Sur-Rebuttal by Deft.

USD #501 on Monday, 11/10/86 and Officially Resting on that date

if any. Parties to submit F/F & C/L simultaneously 45 days from

I ;
iNov 17 1295
t

today and/or Rebuttal 15 days thereafter, if necessary ORDER-ENTERED-ROGERS-J: Deft U.S.D. No. 501 shall have until
November 21, 1986 within which to identify as exhibits and place

in evidence any add'l deposition pages and School Board minutes

to become part of the trial record to be considered by the Court

,iNoV 25

cc: to counsel 296 P~SED LIST OF TRIAL EXHIBITS for deft USD No. 501

iDee 02 297 : RETURN of Service on Subpoena, served Hugh W. Speer, 10/26/86

:Dec 18 298 iCertificate of Service by Pltfs' of Post-Trial Brief and Proposed

pec !

Findings of Fact and Conclusions of Law

18 299 'POST TRIAL BRIEF of Pltfs'

Dec 18 300 iPROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW of Pltfs' I,Dec 18 301 ;PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW of U.S.D. #501

(Continued)

· , ' DG.lllA • (Rev. 1/75)
PLAINTIFF
OLIVER BROWN, et al.,

CIVIL. DOCKET CONTINUATION SHEET DEFENDANT
BOARD OF EDUCATION OF 'IDPEKA et al

DOCKET NO. T- 316 PAGE 15 OF__ PAGES

I DATE

NR.'

PROCEEDINGS

1986 I

Dec 19 302 ORDER-ENTERED-ROGERS-J: Leave is granted in the above case allowir.

the individually named defts associated with the State Board of

Education to file their post trial breif on Friday, December 19,

1986

cc: to counsel

Dec 19 303 POST-TRIAL BRIEF by the individually-named defts associated with

the Kansas State Board of Education

Dec 31 304 ORDER-ENTERED-ROGERS-J: Upon agreement of the parties as related

to the court by counsel for U.S.D #501, the court shall extend

the time for the filing of reply briefs to January 28, 1987

1987 i

cc: to counsel

Jan 28! 305 REPLY BRIEF by individually-named defts associated with The Kansas

State Board of Education to Pltfs' Post-Trial Brief and Pltfs'

I

Proposed Findings of Fact and Conclusions of Law: Post-Trial

Jan 29i 306 Feb 061 307
i
Feb 10 308

RESP of U.S.D. No. 501 to Pltfs' Post-Trial Brief MOTION of Pltfs for Leave to file Supplemental Post-Trial Memo
(Memo in File) RESP by Individual Members of the State Board of Education to Pltfs

Motion to File Supplemental Post-Trial Memo

Feb 11 309 RESP of U.S.D. No. 501 to Pltfs' Motion for Leave to file Supplemer

Post-Trial Memo

I Apr 08 310 MINUTE ORDER-ENTERED-CLERK: It is ordered that plaintiffs' rrotion for leave to

I
fEr 08 I 311
FApLLE09#8I 312
I I
Apr 09 313

file supplerrental post-trial rrercorandum be and it hereby is granted. cc to counsel SUPPLEMENI'AL POST-TRIAL MEMORANDUM of PItfs

MEMORANDUM AND ORDER-ENTEREO-ROGERS-J: Pltfs' claims for relief are denied.

cc to counsel

EOD 4/09/87

JUDGr-1ENT ENTERED-CIERK':' It is ordered and adjudged that plaintiffs' claims

for relieft be and are hereby denied. It is further ordered and adjudged

that the plaintiff take nothing, and that the defendants Board of Education

of Topeka, Shawnee County, Kansas, Dorothy Groesbeck, Kay Groneman, Ruthann

Oelsner, Dale Carey, Ann Keener, Marilyn Ha:rwood, Theodore Von Fange, Jim

Hiebert, Denise Apt., and Evelyn Whitcorrb, Merrbers of the State of Kansas

Board of Education, all of their official capacities recover of the Interveni

Plaintiffs Charles and Kimberly Smith, minor children, by their Mother and

Next Friend, Linda BrCMn Smith, Danielle Threatt, a minor child, by her

Mother and Next Friend, Juda Gaines, Shawn, Tanya and Tara hT-ods, minor

children, by their Mother and Next Friend, Joyce Woods, Cordellia Mitchell

and Connie M~ell, minor children, by their Mother and Next Friend, Barbara

Mitchell, Arlene Jackson, a minor child, by her Mother and Next Friend,

Charlene Burkes, Carlesia and Cheryl Robinson, minor children, by their

Mother and Next Friend, Patricia Robinson, Rufus D. and Michelle Kelley, mine

children, by their Father and Next Friend, Rufus Kelley, John, Jackie, Johnn:

and Viola Davis, minor children, by their Mother and Next Friend, Ruby Davis,

their costsof action.

EOD 4/09/87

cc to cnunsel

: JS 6 card made.

. '
oq lllA
(Rev. 1175)
PLAINTIFF
OLIVER BroWN et al

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
, BOARD OF EDUCATION OF 'IDPEKA' et al

FPI MAR 7·U·80·70M·439f
DOCKET NO. T-316 PAGE16 OF__ PAGES

DATE

NR.

PROCEEDINGS

1987 May 7
May 7 May 18

314 PLAINTIFFS' NerICE OF APPEAL

USCA #87-1668

FEES S105.00

copies mailed to: Ridlard E. Jones, din.5 Hansen, Gm:y Sebelius, Dan Biles,

Carl Gallagher, Charles Scott, Jr., Joseph D. Johnson, and Robert L. Hoecker,

Clerk, United States Court of Appeals with copy of docket ene~ies

rx::x:::KETING STATEMENT received from Plaintiffs

315 NOTIFICATION from USCA advising case has been docketed and assigned 87-1668

May 20

316 P1tf's notice of transcript order - transcript due 5-26-87 cc to USCA and counsel of record

May 20 May 20 May 20 May 20
May 20 I
May 20
May 20 May 20 May 20 May 20 May 20 May 20 May 20 May 20
May 20 May 20 May 20 May 20
Aug 10 Aug 12

317 Transcript of trial on October 6, 19 86 - vol'l.llle 1 318 Transcript of trial on October 7, 1986 - Vol'l.llle 2 319 Transcript of the trial on October 8, 19 86 - Vo1'l.l1le 3
320 i Transcript of the trial on October 9, 19 86 - Vo1urre 4
321 Transcript of the trial on October, 10, 1986 - Vo1urre 5 322 Transcript of the trial on October 14, 1986 - Vo1urre 6 323 Transcript of the trial on October 15, 1986 - Vo1urre 7 324 Transcript of the trial on October 16, 1986 - Volurre 8 325 Transcript of the trial on October 20, 1986 - Vo1urre 9 326 Transcript of the trial on October 21, 19 86 - Volurre 10 327 Transcript of the trial on October 22, 1986 - Volume 11 328 Transcript of the trial on October 23, 1986 - Volume 12 329 Transcript of the trial on October 24, 1986 - Volume 13 330 Transcript of the trial on October 27, 1986 - Volume 14 331 Transcript of the trial on October 28, 1986 - Volume 15 332 Transcript of the trial on October 29, 1986 - Vo1urre 16 333 Transcript of the trial on October 30, 1986 - Volume 17 334 Transcript of the trial on October 31, 1986 - Vo1urre 18
335 ORDER-ENTERED-USCA: Record on appeal due 8-17-87 (p 1 tf) Copies of pleadings and transcripts mailed to USCA as record on appeal cc to counsel

Sep 1 Sep 8

3 ORDER-ENTERED-USCA: Reford on appeal due 9/8/87 (Deft Bd of Educat 31 Copies of pleadings and transcript consisting of the record on I appeal transmitted to USCA SUPPLEMENTAL VOLUMES I thru IX
, cc to counse 1

Sep 9 337 I ORDER-ENTERED-USCA: Record on appeal due 9/14/87 (Deft State

I
i Sep 14

Ii Board of Education)
I Copies of pleadings transmitted to USCA consisting of the Record

1989

on appeal of Deft State Board of Education SUPPLEMENTAL VOLUME X

Jun 16 338 i ORDER-ENTERED-USCA: (EOD 6/16/89)

Record on appeal is supplemented with the transcript pages

2737 through 2873.

copies: Robert T. Stephan & Carl A. Gallagher; David M.

Thompson & Wm. Bradford Reynolds; Charles N. Henson,

Charles D. McAtee, Anne L. Baker & K. Gary

Sebelius; Dan Biles; Richard E. Jones & Christopher

A. Hansen

Jun 161

Transmitted Supplemental Record on Appeal - Supp. Vol. 10

Jun 19

Transmitted Supplemental Record on Appeal - Su~~. Vol. 11 as

requested by USCA

-ovec-

• D'C I11A' • , (Rev. 1175)
PLAINTIFF
OLIVER BROWN, et ale
DATE i, NR. i

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
: BOARD OF EDUCATION, et ale
i PROCEEDINGS

F'PI-MAP-7 ·14·80· 7 OM-.
DOCKET NO. 1'-316

1989 i Jul 14 339! ORDER-ENTERED-USCA: (EOD 7/14/89)
Court, on its own motion, supplements the record on appeal

wi th pI t fs I exhibi t numbar 25, the resume of ~\Ii 2.1 iam

Jul 14

Lamson.

copies: counsel

Transmitted Supplemental Record on Appeal - Volume 12 to

i

USCA

Ju1 20 340 I RECEIPT from USCA for supplemental record on appeal

Aug 31

I

- Vol. 12

' Transmitted Supplemental Record on Appeal - Vol. 13

to USCA as requested (Pltf's exhibit 155 A-R) Sep 5 341 ORDER-ENTERED-USCA: (EOD 9/5/89)

Record on appeal to be supplemented wi th pltf IS exhibit 155 A-R. (See entry above - record supplemented on 8/31/89)

1990 MaYTQ 342

LETTER from USCA stating that a petition for writ of cert was filed on 4/26/90 & assigned Supreme Court No. 89-1681

1992

Apr 27 343 ORDER-ENTERED-US SUPREME COURT: (EOD 4/27/92) Peti tion for wri t of cert in Supreme Court No. 89-1681 (USCA No

87-1668)--granted. Judgment is vacated & case remanded to USCA for further consideration.

May 20

cc: to counsel Transmitted Supplemental Record on Appeal - Volumes 14-27 to IOCCA
(duplicate copies of records previously sent per their request)

Hay 29 Jun 12

344 : RECEIPT from USCA for suppl record on appeal - Vols. 14-27 Transmitted Supplemental Record on Appeal - Volumes 28-30 (Vol. 28 contains original exhibits) to IOCCA per their request (lkh)

Ju1 2 345 RECEIPT from USCA for suppl record on appeal - Supple Vols. 28-30

1993 ,

:

Mar 12 346 : MANDATE-ENTERED-USCA: (EOD 3/12/93)

: Decision of district court is reversed & prior op~n~on of USCA is reinstate

The cause is remanded to the USDC for the District of KS for further

proceedings in accordance with the opinion of this court.

I

copies: counsel

 </s> [FROM THE U.S. SUPREME COURT REcORD]
10
[fo1. 12J IN UNITED STATES DISTRICT COURT AMENDME,NT TO PARAGRAPH EIGHT OF THE AMENDED COMPLAINT-Filed May 29, 1951
8. The educational opportunities provided by defendants for infant plaintiffs in the separate all-Negro schools are inferior to those provided, for white school children similarly situated in violation of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. The respects in which these opportunities are inferior include the physical facilities, curricula, teaching, resources, student personnel services, access and all other educational factors, tangible and intangible, offered to school children in Topeka. Apart from all other factors, the racial segregation herein practiced in and of itself constitutes an inferiority in educational opportunity offered

11
to Negroes, when compared to educational opportunity offered to whites.
Bledsoe, Scott, Scott & Scott, by Chas. E. Bledsoe.
Duly sworn to by Charl.es E. Bledsoe. Jurat omitted in printing.

 </s> District of Kansas - Docket Report

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CLOSED, SuppressAnsRpt
U.S. District Court District of Kansas (Topeka) CIVIL DOCKET FOR CASE #: 5:51-cv-04316-RDR

Brown, et al v. USD 501 Topeka, et al Assigned to: Senior Judge Richard D. Rogers Demand: $0 Case in other court: USCA 10th Cir, 87-01668
US Supreme Court, 89-01681 Cause: 42:1983 Civil Rights Act

Date Filed: 02/28/1951 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Oliver Brown

represented by Christopher A Hansen American Civil Liberties Union 125 Broad Street-18th Fl. New York, NY 10004-2400 212-549-2500 Fax: 549-2651 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard E. Jones Jones Law Office 1503 S.E. Quincy Topeka, KS 66612 785-235-3961 Fax: 785-235-3967 Email: joneslawoffice@sbcglobal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Richard Lawton Mrs.

Victor A Bolden ACLU National Legal Department 132 West 43rd Street New York, NY 10036 212-944-9800/682 TERMINATED: 12/19/1994 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff Sadie Emmanuel Mrs.
Plaintiff Lucinda Todd Mrs.
Plaintiff Iona Richardson Mrs.
Plaintiff Lena Carper Mrs.
Plaintiff

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Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Shirley Hodison Mrs.
Plaintiff Alma Lewis Mrs.
Plaintiff Darlene Brown Mrs.
Plaintiff Shirla Fleming Mrs.
Plaintiff Andrew Henderson Mrs.

Page 3 of 29
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones

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Plaintiff Vivian Scales Mrs.
Plaintiff Marguerite Emmerson Mrs.
Plaintiff Linda Carol Brown an infant, by Oliver Brown, her father and next friend
Plaintiff Victoria Jean Lawton infant, by Mrs. Richard Lawton, her mother and next friend
Plaintiff Carol Kay Lawton

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen

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infant, by Mrs. Richard Lawton, her mother and next friend
Plaintiff James Seldon Emmanuel an infant, by Mrs. Sadie Emmanuel, his mother and next friend
Plaintiff Nancy Jane Todd an infant, by Mrs. Lucinda Todd, her mother and next friend
Plaintiff Ronald Douglas Richardson an infant, by Mrs. Iona Richardson, his mother and next friend
Plaintiff Katherine Louise Carper an infant, by Mrs. Lena Carper, her mother and next friend

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address)

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Plaintiff Charles Hodison an infant, by Mrs. Shirley Hodison, his mother and next friend
Plaintiff Theron Lewis an infant, by Mrs. Alma Lewis, mother and next friend
Plaintiff Martha Jean Lewis an infant, by Mrs. Alma Lewis, mother and next friend
Plaintiff Arthur Lewis an infant, by Mrs. Alma Lewis, mother and next friend
Plaintiff Frances Lewis infant, by Mrs. Alma Lewis, mother and

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address)

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next friend
Plaintiff Saundria Dorstella Brown an infant, by Mrs. Darlene Brown, her mother and next friend
Plaintiff Duane Dean Fleming infant, by Mrs. Shirla Fleming, mother and next friend
Plaintiff Silas Hardrick Fleming infant, by Mrs. Shirla Fleming, mother and next friend
Plaintiff Donald Andrew Henderson infant, by Mrs. Andrew Henderson, mother and next friend

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY

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Plaintiff Vicki Ann Henderson infant, by Mrs. Andrew Henderson, mother and next friend
Plaintiff Rugh Ann Scales infant, by Mrs. Vivian Scales, her mother and next friend
Plaintiff Claude Arthur Emmerson infant, by Mrs. Marguerite Emmerson, mother and next friend
Plaintiff George Robert Emmerson infant, by Mrs. Marguerite Emmerson, mother and next friend
V. Intervenor Plaintiff

ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Linda Brown Smith Mother and next friend of minor children Charles and Kimberly Smith other Charles Smith other Kimberly Smith
Intervenor Plaintiff Juda Gaines Mother and next friend of minor child Danielle Threatt other Danielle Threatt
Intervenor Plaintiff Joyce Woods Mother and next friend of minor children Shawn, Tanya and Tara Woods
other Shawn Woods other Tanya Woods other Tara Woods
Intervenor Plaintiff Barbara Mitchell Mother and next friend of minor children Cordellia Mitchell and Connie Maxwell other Cordellia Mitchell other Connie Maxwell
Intervenor Plaintiff Charlene Burkes Mother and next friend of minor child Arlene Jackson other Arlene Jackson

represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Intervenor Plaintiff
Patricia Robinson Mother and next of minor children Carlesia and Cheryl Robinson other Carlesia Robinson other Cheryl Robinson
Intervenor Plaintiff
Rufus Kelley Father and next friend of minor children Rufus D. and Michelle Kelley other Rufus D Kelley other Michelle Kelley
Intervenor Plaintiff
Ruby Davis Mother and next friend of minor children John, Jackie, Johnny and Viola Davis other John Davis other Jackie Davis other Johnny Davis other Viola Davis
V.
Defendant
Unified School District #501, Topeka Board of Education of Topeka, Shawnee County, Kansas

Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher A Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne L. Baker 225 US Courthouse - Room 3 444 SE Quincy Topeka, KS 66683 785-295-2786

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Fax: 785-295-2964 Email: annebaker@wrighthenson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carl A. Gallagher McAnany, Van Cleave & Phillips, P.A. -- KCK 707 Minnesota Avenue, Suite 400 P.O. Box 171300 Kansas City, KS 66117 913-371-3838 Fax: 913-371-4722 Email: cgallagher@mvplaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles N. Henson Wright, Henson, Clark, Hutton, Mudrick & Gragson, LLP 100 SE 9th St PO Box 3555 Topeka, KS 66601-3555 785-232-2200 x204 Fax: 785-232-3344 Email: charles@wrighthenson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles D. McAtee 115 SE 7th Street Topeka, KS 66601 785-357-0333 Fax: 785-357-0216 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dan Biles Gates, Biles, Shields & Ryan, PA 10990 Quivira, Suite 200 Overland Park, KS 66210 913-661-0222 Fax: 913-491-6398 Email: danbiles@gbsrlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
K. Gary Sebelius Wright, Henson, Somers, Sebelius, Clark & Baker, LLP

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Defendant
Kenneth McFarland Superintendent of Schools of Topeka, Kansas

P. O. Box 3555 Topeka, KS 66601-3555 785-232-2200 Fax: 232-3344 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert T. Stephan 14243 West 84th Terrace Lenexa, KS 66215 913-438-8515 Fax: 913-438-3088 Email: xgeneral@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne L. Baker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carl A. Gallagher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles N. Henson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles D. McAtee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dan Biles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
K. Gary Sebelius (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert T. Stephan (See above for address) LEAD ATTORNEY

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Defendant Frank Wilson Principal of Sumner Elementary School
Defendant Dorothy Groesbeck Member of the State of Kansas Board of Education

ATTORNEY TO BE NOTICED
represented by Anne L. Baker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carl A. Gallagher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles N. Henson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles D. McAtee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dan Biles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
K. Gary Sebelius (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert T. Stephan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne L. Baker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carl A. Gallagher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles N. Henson

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Defendant
Kay Groneman Member of the State of Kansas Board of Education

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles D. McAtee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dan Biles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
K. Gary Sebelius (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert T. Stephan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne L. Baker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carl A. Gallagher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles N. Henson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles D. McAtee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dan Biles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant Ruthann Oelsner Member of the State of Kansas Board of Education
Defendant Dale Carey Member of the State of Kansas Board of Education

K. Gary Sebelius (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert T. Stephan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne L. Baker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carl A. Gallagher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles N. Henson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles D. McAtee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dan Biles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
K. Gary Sebelius (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert T. Stephan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne L. Baker (See above for address) LEAD ATTORNEY

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Defendant
Ann Keener Member of the State of Kansas Board of Education

ATTORNEY TO BE NOTICED
Carl A. Gallagher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles N. Henson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles D. McAtee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dan Biles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
K. Gary Sebelius (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert T. Stephan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne L. Baker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carl A. Gallagher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles N. Henson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles D. McAtee (See above for address)

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Defendant
Marilyn Harwood Member of the State of Kansas Board of Education

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dan Biles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
K. Gary Sebelius (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert T. Stephan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne L. Baker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carl A. Gallagher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles N. Henson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles D. McAtee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dan Biles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
K. Gary Sebelius (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert T. Stephan

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Defendant Theodore Von Fange Member of the State of Kansas Board of Education
Defendant Jim Hiebert Member of the State of Kansas Board of Education

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne L. Baker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carl A. Gallagher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles N. Henson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles D. McAtee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dan Biles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
K. Gary Sebelius (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert T. Stephan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne L. Baker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carl A. Gallagher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant
Denise Apt Member of the State of Kansas Board of Education

Charles N. Henson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles D. McAtee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dan Biles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
K. Gary Sebelius (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert T. Stephan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne L. Baker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carl A. Gallagher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles N. Henson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles D. McAtee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dan Biles (See above for address) LEAD ATTORNEY

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Defendant
Evelyn Whitcomb Member of the State of Kansas Board of Education

ATTORNEY TO BE NOTICED
K. Gary Sebelius (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert T. Stephan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne L. Baker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carl A. Gallagher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles N. Henson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles D. McAtee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dan Biles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
K. Gary Sebelius (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert T. Stephan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

#

Docket Text

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02/28/1951 05/07/1987 05/18/1987 05/10/1990 04/27/1992
03/12/1993
04/15/1993 05/14/1993
05/17/1993 05/18/1993 06/17/1993 06/18/1993 07/06/1993 07/19/1993

1 COMPLAINT (ICMSUSER) (Entered: 03/15/1993)
314 NOTICE OF APPEAL by plaintiffs from Dist. Court decision (ICMSUSER) (Entered: 03/15/1993)
315 APPEAL DOCKETED in 10th Circuit and assigned Dkt No. 87-1668 (ICMSUSER) (Entered: 03/15/1993)
342 LETTER from 10CCA stating petition for writ of cert filed 4/26/90 & assigned Supreme Court No. 89-1681 (ICMSUSER) (Entered: 03/15/1993)
343 ORDER ENTERED-US SUPREME COURT: Petition for writ of cert in Supreme Court No. 89-1681 (USCA No. 87-1668) --granted. Judgment vacated & case remanded to USCA for further consideration. (ICMSUSER) (Entered: 03/15/1993)
346 MANDATE, 10CCA: reversing decision of the district court & reinstating USCA's prior opinion. The cause is remanded to the USDC for the District of Kansas for further proceedings in accordance with the opinion of this court. [Appeal [314-1] (cc: all counsel) (ICMSUSER) (Entered: 03/15/1993)
347 CERTIFICATE of service of interr to USD 501, by intervenor-plaintiffs (ICMSUSER) (Entered: 04/16/1993)
348 LETTER from 10CCA stating petition for writ of cert was filed on 4/26/93 & assigned Supreme Court No. 92-1568 (USCA No. 87-1668) re: appeal [314-1] (ICMSUSER) Modified on 05/14/1993 (Entered: 05/14/1993)
349 MOTION by defendant USD 501 Topeka to extend time to 6/17/93 to answer or object to pltfs' 5th interr; referred to Senior Judge Richard D. Rogers (ICMSUSER) (Entered: 05/17/1993)
350 ORDER ENTERED: by Senior Judge Richard D. Rogers granting deft USD 501s motion to extend time to 6/17/93 to answer or object to pltfs' 5th interr [349-1] (cc: all counsel) (ICMSUSER) (Entered: 05/18/1993)
351 MOTION by defendant USD 501 Topeka to extend time to 7/19/93 to respond to pltfs' 5th interr, referred to Senior Judge Richard D. Rogers (ICMSUSER) (Entered: 06/18/1993)
352 ORDER ENTERED: by Senior Judge Richard D. Rogers granting deft USD 501 Topeka's motion to extend time to 7/19/93 to respond to pltfs' 5th interr [351-1] (cc: all counsel) (ICMSUSER) (Entered: 06/18/1993)
353 LETTER from 10CCA stating petition for writ of cert was denied by Supreme Court on 6/21/93. Appeal #87-1668 (ICMSUSER) (Entered: 07/06/1993)
354 MOTION by defendant USD 501 Topeka for order extending time to answer or object to pltf's 5th set of interrogatories referred to Senior Judge Richard D. Rogers (CAM) (Entered: 07/19/1993)

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07/20/1993 08/02/1993 08/19/1993 08/19/1993 08/19/1993 08/20/1993 08/30/1993 09/01/1993 09/01/1993 09/23/1993 09/30/1993 10/04/1993 10/20/1993

355 ORDER ENTERED: by Senior Judge Richard D. Rogers granting deft 501's motion for order extending time 7/29/93 to answer or object to pltf's 5th set of interrogatories [354-1] (cc: all counsel) (CAM) (Entered: 07/20/1993)
356 CERTIFICATE of svc by defendant USD 501 Topeka of answers to pltfintervenor's interrogatories & objections to pltf-intervenor's interrogatory (CAM) (Entered: 08/03/1993)
357 MOTION by plaintiffs for attorney fees and costs referred to Senior Judge Richard D. Rogers with attachments. EXPANSION FOLDER (KM) (Entered: 08/19/1993)
358 MEMORANDUM of law in support by plaintiff re: motion for attorney fees and costs referred to Senior Judge Richard D. Rogers [357-1] (KM) (Entered: 08/19/1993)
359 AFFIDAVIT of Charles S. Scott, Jr. re: motion for attorney fees and costs referred to Senior Judge Richard D. Rogers [357-1] (KM) (Entered: 08/19/1993)
360 CERTIFICATE of mailing of affidavit and attached attorney fee statement by plaintiffs. (KM) (Entered: 08/20/1993)
361 MOTION by deft USD 501 to extend time until 10/3/93 to respond to pltf's application for attorneys fees and cost referred to Senior Judge Richard D. Rogers (VLW) (Entered: 08/31/1993)
362 ORDER ENTERED: by Senior Judge Richard D. Rogers granting motion by deft USD 501 to extend time until 10/3/93 to respond to pltf's application for attorneys fees and cost [361-1] (cc: all counsel) (LAK) (Entered: 09/02/1993)
363 ORDER ENTERED: by Magistrate Judge Ronald Newman Status Conference 9/20/93 at 1:30 pm (cc: all counsel) (LAK) (Entered: 09/02/1993)
364 SCHEDULING ORDER ENTERED: Magistrate Judge Ronald Newman Final Pretrial Conference set for 1:30 pm on 3/30/94. Trial set for 4/18/94 before RDR. Fact discovery ddl set for 1/15/94 (cc: all counsel) (LAK) (Entered: 09/23/1993)
365 MOTION by defendant USD 501 Topeka to extend time to resp to pltfs' application for attys' feses & costs; referred to Senior Judge Richard D. Rogers (LAK) (Entered: 10/01/1993)
366 ORDER ENTERED: by Senior Judge Richard D. Rogers granting deft's (USD No. 501) motion to extend time (30) days or until 11/2/93 to resp to pltfs' application for attys' fees & costs [365-1] (cc: all counsel) (CEL) (Entered: 10/04/1993)
367 MOTION by plaintiffs to compel discovery & for costs referred to Magistrate Judge Ronald Newman (CAM) (Entered: 10/25/1993)

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10/22/1993 10/25/1993 11/02/1993 11/04/1993
11/05/1993 11/12/1993 11/12/1993 11/12/1993 11/16/1993
11/17/1993 11/17/1993 11/24/1993 11/29/1993

368 MOTION by plaintiffs for attorney Victor A. Bolden to appear pro hac vice referred to Magistrate Judge Ronald Newman (CAM) (Entered: 10/25/1993)
369 SUPPLEMENTAL AFFIDAVIT by plaintiffs re: motion for attorney fees and costs referred to Senior Judge Richard D. Rogers [357-1] (CAM) (Entered: 10/26/1993)
370 MOTION by defendant USD 501 Topeka to extend time to respond to pltfs' application for attorneys' fees & costs; referred to Senior Judge Richard D. Rogers (LAK) (Entered: 11/02/1993)
371 ORDER ENTERED: by Senior Judge Richard D. Rogers granting deft's motion to extend time to respond to pltfs' application for attorneys' fees & costs to 11/17/93 [370-1] (cc: all counsel) (LAK) (Entered: 11/04/1993)
372 RESPONSE by defendant to motion to compel discovery & for costs referred to Magistrate Judge Ronald Newman [367-1] (CAM) (Entered: 11/05/1993)
373 REPLY by plaintiffs to response to motion to compel discovery & for costs referred to Magistrate Judge Ronald Newman [367-1] (CAM) (Entered: 11/12/1993)
374 MOTION by defendant USD 501 Topeka for determination of issue of law prior to trial, referred to Senior Judge Richard D. Rogers (DO) (Entered: 11/15/1993)
375 MEMORANDUM/BRIEF in support by defendant USD 501 Topeka re: motion for determination of issue of law prior to trial, referred to Senior Judge Richard D. Rogers [374-1] (DO) (Entered: 11/15/1993)
376 ORDER ENTERED: by Magistrate Judge Ronald Newman overruling w/o prej for reassertion in compliance w/local rules motion for attorney Victor A. Bolden to appear pro hac vice [368-1] (cc: all counsel) (CAM) (Entered: 11/16/1993)
377 CERTIFICATE of svc by intervening pltfs Charles Smith & Kimberly Smith of interrogatories & request for admission to be answered by authorized representative of USD (CAM) (Entered: 11/17/1993)
378 RESPONSE by defendant USD 501 Topeka to pltfs' motion for attorney fees and costs; referred to Senior Judge Richard D. Rogers [357-1] (LAK) (Entered: 11/19/1993)
379 MOTION by plaintiffs to extend time until 12/30/93 to reply to defts' response to pltfs' application for attorneys' fees and costs, referred to Senior Judge Richard D. Rogers (DO) (Entered: 11/26/1993)
380 ORDER ENTERED: by Senior Judge Richard D. Rogers granting pltfs' motion to extend time until 12/30/93 to reply to defts' response to pltfs' application for attorneys' fees and costs [379-1] (cc: all counsel) (LAK) (Entered: 11/29/1993)

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12/03/1993 12/03/1993 12/03/1993 12/10/1993 12/13/1993 01/03/1994 01/03/1994 01/12/1994 01/13/1994 01/18/1994 01/24/1994 01/24/1994 01/29/1994

381 MEMORANDUM AND ORDER: by Senior Judge Richard D. Rogers granting motion for determination of issue of law prior to trial, consistent with the above-stated opinion [374-1] 6 pages (cc: all counsel) (DO) (Entered: 12/06/1993)
382 MOTION by plaintiffs for attorney Victor A. Bolden to appear pro hac vice; referred to Magistrate Judge Ronald Newman (LAK) (Entered: 12/07/1993)
FILING FEE PAID: on 12/3/93 in the amount of $ 25.00, receipt # 033140 for pro hac vice fees for Victor A. Bolden (LAK) (Entered: 12/07/1993)
383 ORDER ENTERED: by Magistrate Judge Ronald Newman granting motion for attorney Victor A. Bolden to appear pro hac vice [382-1] (cc: all counsel) (LAK) (Entered: 12/10/1993)
384 CERTIFICATE of svc by defendant USD 501 Topeka of objections to pltf-intervenors' 6th set of interrogatories & request for production of documents (CAM) (Entered: 12/14/1993)
385 REPLY MEMORANDUM by plaintiffs to response to motion for attorney fees and costs referred to Senior Judge Richard D. Rogers [3571] (CAM) (Entered: 01/03/1994)
386 REPLY by Charles S Scott to defendant's response to plaintiff's motion for attorney fees and costs referred to Senior Judge Richard D. Rogers [357-1] (LH) (Entered: 01/04/1994)
387 MOTION by defendant USD 501 Topeka for permission to file surreply in response to pltfs' reply in support of pltfs' motion for fees & expenses referred to Senior Judge Richard D. Rogers (CAM) (Entered: 01/13/1994)
388 ORDER ENTERED: by Senior Judge Richard D. Rogers granting deft USD 501's motion for permission to file surreply in response to pltfs' reply in support of pltfs' motion for fees & expenses [387-1] (cc: all counsel) (CAM) (Entered: 01/13/1994)
389 MOTION by plaintiffs to compel defts to respond to pltfs' 6th set of interrogatories w/brief in support referred to Magistrate Judge Ronald Newman (CAM) (Entered: 01/19/1994)
390 SURREBUTTAL MEMORANDUM IN SUPPORT by defendant USD 501 Topeka of deft's opposition to pltfs' motion for fees and costs, referred to Senior Judge Richard D. Rogers [357-1] (DO) (Entered: 01/25/1994)
391 SURREBUTTAL MEMORANDUM IN SUPPORT by defendant USD 501 Topeka of deft's opposition to the motion of Charles Scott, Jr. for an award of attorney's fees and costs, referred to Senior Judge Richard D. Rogers [357-1] (DO) (Entered: 01/25/1994)
392 RESPONSE by defendant USD 501 Topeka to motion to compel defts to

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03/03/1994 03/03/1994 03/16/1994 03/23/1994
03/30/1994
04/01/1994
04/01/1994 04/06/1994 04/08/1994
04/13/1994 04/13/1994 04/18/1994 04/21/1994
06/14/1994

respond to pltfs' 6th set of interrogatories w/brief in support referred to Magistrate Judge Ronald Newman [389-1] (DO) (Entered: 01/31/1994)
393 WITNESS & EXHIBIT list by defendant USD 501 Topeka (ICMSUSER) (Entered: 03/04/1994)
394 WITNESS & EXHIBIT LIST submitted by plaintiffs (CAM) (Entered: 03/04/1994)
395 AMENDED WITNESS & EXHIBIT LIST submitted by plaintiffs (CAM) (Entered: 03/17/1994)
396 SUPPLEMENTAL MEMORANDUM in support by plaintiffs re: [389-1] motion to compel defts to respond to pltfs' 6th set of interrogatories w/brief in support referred to Magistrate Judge Ronald Newman [389-1] (CAM) (Entered: 03/24/1994)
397 MEMORANDUM AND ORDER: by Magistrate Judge Ronald Newman granting & overruling in part pltfs' motion to compel discovery & for costs [367-1] & overruling in its entirety pltfs' notice of motion to compel defts to respond to pltfs' 6th set of interrogatories 389-1] 4 pages (cc: all counsel) (CAM) (Entered: 03/31/1994)
398 MEMORANDUM AND ORDER: by Magistrate Judge Ronald Newman granting pltfs' motion for reconsideration of court's order entered 4/30/94 related to pltfs' motions to compel discovery [367-1] & [389-1] 2 pages (cc: all counsel) (CAM) (Entered: 04/01/1994)
399 NOTICE by USD 501 Topeka of taking deposition duces tecum of Dr. Leonard B. Stevens on 4/8/94 (CAM) (Entered: 04/04/1994)
400 SUPPLEMENTAL WITNESS LIST submitted by plaintiffs (CAM) (Entered: 04/07/1994)
401 CERTIFICATE of service by defendant USD 501 Topeka of: answers to plaintiff-intervenors' interrogatory no. 23 and 24; answers to plaintiffintervenors' interrogatory no. 25 and 26 answered by Rome Mitchell; and answers to plaintiff-intervenors' interrogatory no. 25 and 26 answered by Scott McCully. (DO) (Entered: 04/11/1994)
402 PRE-TRIAL BRIEF submitted by plaintiffs (CAM) (Entered: 04/13/1994)
403 TRIAL BRIEF submitted by defendant USD 501 Topeka (CAM) (Entered: 04/14/1994)
404 RETURN OF SERVICE by defendant of subpoena - Served Curtis Hartenberger 4/18/94 (CAM) (Entered: 04/19/1994)
405 MINUTE SHEET of trial to Court at Topeka, KS, RDR: (Bertelli, CSR) Trial began 4/18/94 & reconvened 4/19/94, 4/20/94 & 4/21/94. Counsel to report back to court within 2 weeks (CAM) Modified on 10/05/1998 (Entered: 04/22/1994)
406 TRANSCRIPT of testimony held 4/20/94 before Hon. RDR; I volume

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07/05/1994 07/12/1994 07/13/1994 07/14/1994 07/25/1994
08/08/1994 08/17/1994 08/19/1994 09/23/1994 10/07/1994 10/14/1994 10/17/1994 10/24/1994 10/26/1994

(Bertelli, CSR) (CAM) (Entered: 06/15/1994)
407 MINUTE SHEET: Topeka, KS, 7/5/94, RDR: Telephone conference (CAM) (Entered: 07/05/1994)
408 EXHIBIT list by plaintiffs (CAM) (Entered: 07/14/1994)
409 MINUTE SHEET of court trial @ Topeka, KS: Horenkamp, CSR - U/A Court to issue order (CAM) (Entered: 07/15/1994)
410 ORDER ENTERED: by Senior Judge Richard D. Rogers: Re the motion for attorney fees and costs [357-1] (See order for details) (cc: all counsel) (CAM) (Entered: 07/15/1994)
411 ORDER ENTERED: by Senior Judge Richard D. Rogers. Desegregation plan submitted by deft in response to mandate of 10CCA addresses nature & scope of constitutional violation in equitable manner. Deft's plan is therefore approved with modifications suggested in opinion. Deft to submit formal order directing remedial action for court's signature within 10 days. 26 pages terminating case (cc: all counsel) (ADMIN) (Entered: 03/16/1999)
412 ORDER ENTERED: by Senior Judge Richard D. Rogers. Court approves Remedy Plan dated 6/16/94. For details, see order (cc: all counsel) (LAK) (Entered: 08/08/1994)
413 MOTION w/memorandum in support by plaintiffs for reconsideration of order entered 8/8/94; referred to Senior Judge Richard D. Rogers (LAK) (Entered: 08/17/1994)
414 RESPONSE by defendants to pltfs' motion for reconsideration of order entered 8/8/94; referred to Senior Judge Richard D. Rogers [413-1] (MB) (Entered: 08/22/1994)
415 SUPPLEMENT MOTION by plaintiffs re: [357-1] motion for attorney fees and costs referred to Senior Judge Richard D. Rogers [357-1] (CAM) (Entered: 09/23/1994)
416 MOTION by defendant USD 501 Topeka to extend time to respond to pltfs' supplemental motion for atty fees & costs; referred to Senior Judge Richard D. Rogers (LAK) (Entered: 10/11/1994)
417 RESPONSE by defendant re: supplemental motion for atty's fees & costs [415-1] (CAM) (Entered: 10/17/1994)
418 ORDER ENTERED: by Senior Judge Richard D. Rogers granting motion to extend time until 10/14/94 to respond to pltfs' supplemental motion for atty fees & costs [416-1] (cc: all counsel) (CAM) (Entered: 10/17/1994)
419 REPLY MEMORANDUM by plaintiffs in support of pltfs' supplemental motion for attys' fees & costs [415-1] (CAM) (Entered: 10/24/1994)
420 MEMORANDUM AND ORDER: by Senior Judge Richard D. Rogers granting in part pltf's motion for reconsideration of order entered 8/8/94 [413-1]. (See order for details) 3 pages (cc: all counsel) (CAM) (Entered:

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11/01/1994 11/14/1994 12/19/1994 02/21/1995
06/05/1995 08/14/1995 09/14/1995 11/01/1995 06/03/1996 06/03/1996 06/13/1996
11/01/1996 06/23/1997 08/08/1997

10/26/1994)
421 NOTICE of svc by defendant of annual monitoring report (CAM) (Entered: 11/02/1994)
422 MOTION by plaintiffs to withdraw attorney Victor A. Bolden referred to Senior Judge Richard D. Rogers (CAM) Modified on 12/13/1994 (Entered: 11/14/1994)
423 ORDER ENTERED: by Senior Judge Richard D. Rogers granting motion to withdraw attorney Victor A. Bolden [422-1] attorney Victor A Bolden for Oliver Brown (cc: all counsel) (CAM) (Entered: 12/19/1994)
424 MEMORANDUM AND ORDER: by Senior Judge Richard D. Rogers: Pltfs' motion & supplemental motion for attorneys' fees & costs--granted, & deft shall pay pltfs' fees & costs based on following calculations (see order for details) 17 pages (cc: all counsel) (CAM) (Entered: 02/22/1995)
425 NOTICE by defendant of attendance boundary change & modification to M-to-M transfer policy re: [412-1] order [412-1] (CAM) (Entered: 06/06/1995)
426 SATISFACTION by intervenor-plaintiffs of order regarding attorneys' fees and expenses dated 2/21/95 (Doc. 424) (MB) (Entered: 08/15/1995)
427 SATISFACTION of order regarding attys' fees & expenses by intervenor-plaintiff re: Order filed 2/21/95 [424-1] (CAM) (Entered: 09/15/1995)
428 CERTIFICATE of svc on 11/1/95 by defendant of Annual Monitoring Report of deft (CAM) (Entered: 11/02/1995)
429 APPLICATION by deft USD 501 Topeka for order for expansion of school placement of elementary school ESL program; referred to Senior Judge Richard D. Rogers (MS) (Entered: 06/04/1996)
430 NOTICE of modification to enhanced M to M transfer policy and to ESL staff training requirements by defendant USD 501 Topeka (MS) (Entered: 06/04/1996)
431 ORDER ENTERED: by Senior Judge Richard D. Rogers granting motion by deft USD 501 Topeka for order for expansion of school placement of elementary school ESL program; [429-1] (cc: all counsel) (MS) (Entered: 06/13/1996)
432 NOTICE of svc of Annual Monitoring Report by defendants with attached Annual Monitoring Report of deft Unified School District No. 501, Shawnee County, KS (MS) (Entered: 11/04/1996)
433 NOTICE of change of address by American Civil Liberties Union, 125 Broad Street, 18th Floor, New York, NY 10004-2400 (MB) (Entered: 06/23/1997)
RECEIVED ORIGINAL APPEAL RECORD exhibits (maps) from CCA 10th circuit [314-1] (ICMSUSER) Modified on 08/11/1997 (Entered:

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11/03/1997 11/02/1998 12/01/1998 04/14/1999 04/16/1999 04/16/1999 04/26/1999 04/27/1999 05/25/1999 05/25/1999
06/28/1999 07/27/1999
07/27/1999

08/11/1997)
434 NOTICE of svc of Annual Monitoring Report with attached Annual Monitoring Report pursuant to Court's Order filed 8/8/94 - by defendant USD 501 Topeka (MS) Modified on 11/03/1998 (Entered: 11/05/1997)
435 NOTICE OF SERVICE of Annual Monitoring Report by defendants filed pursuant to the court's order of 8/8/94 (with attached Annual Monitoring Report) (MS) (Entered: 11/03/1998)
436 NOTICE (ERRATA) by defendant re: the Annual Monitoring Report (Doc. 435) (MS) (Entered: 12/03/1998)
437 NOTICE OF ELEMENTARY SCHOOL GIFTED PROGRAM CHANGE by defendant (MS) (Entered: 04/15/1999)
438 MOTION for unitary status by defendant USD 501 Topeka; referred to Senior Judge Richard D. Rogers (MS) (Entered: 04/19/1999)
439 MEMORANDUM BRIEF by defendant USD 501 Topeka in support of motion for unitary status by defendant USD 501 Topeka; referred to Senior Judge Richard D. Rogers [438-1] (MS) (Entered: 04/19/1999)
440 MOTION to extend time to 5/28/99 to file their response to deft's motion for unitary status by plaintiffs; referred to Senior Judge Richard D. Rogers (MS) (Entered: 04/27/1999)
441 ORDER ENTERED: by Senior Judge Richard D. Rogers granting motion to extend time to 5/28/99 to file their response to deft's motion for unitary status by plaintiffs [440-1] (cc: all counsel) (MS) (Entered: 04/27/1999)
442 MOTION to extend time to 6/28/99 to file their response to the deft's motion for unitary status by plaintiffs; referred to Senior Judge Richard D. Rogers (MS) (Entered: 05/25/1999)
443 ORDER ENTERED: by Senior Judge Richard D. Rogers granting motion to extend time to 6/28/99 to file their response to the deft's motion for unitary status by plaintiffs [442-1] (cc: all counsel) (MS) (Entered: 05/25/1999)
444 RESPONSE by plaintiffs to motion for unitary status by defendant USD 501 Topeka; referred to Senior Judge Richard D. Rogers [438-1] (MS) (Entered: 06/28/1999)
445 MEMORANDUM AND ORDER: by Senior Judge Richard D. Rogers granting motion for unitary status by defendant USD 501 Topeka [4381]; the court ceases further supervision of deft stemming from past mandates in this case; and the court directs that this case be closed. 4 pages (cc: all counsel) (MS) (Entered: 07/27/1999)
446 JUDGMENT ON DECISION BY THE COURT ENTERED BY CLERK re [445-1], Memorandum and Order - The court grants deft's motion for a declaration of unitary status; the court ceases further supervision of deft stemming from past mandates in this case; and the court directs that this

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case be closed. (cc: all counsel) (MS) (Entered: 07/27/1999)

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 </s> TRANSCRIPT OF RECORD
Supreme Court of the United States
OUTOBER TERM, 195b
NO.8.
OLIVER BROWN, MRS. RICHARD. LAWTON, MRS. SADIE EMMANUEL, ET AL., APPELLANTS,
BOARD OF EDUCATION OF TOPEKA, SHAWNEE. COUNTY, KANSAS, ET AL.
APPlAL FROM T H E UNITED STATE8 DISTRICT COURT FOR THE DISTRIOT OF KANSAS
FILED NOVICMBER lS, 1951
Probable jurisdiction noted June 9, 1962

ii

INDEX

Record from U.S.D.C. for the District of Kansas-Con-

tinued

Original

Order correcting transcript of record . . . . . . . . . . . . . . . 99

Transcript of proceedings. June 25.1951 . . . . . . . . . . . . 105

Caption ...................................

106

Colloquy between Court and counsel. . . . . . . . . . . . 107

Offers in evidence . Testimony of Arthur

.E.I..

...... Saville

...... ..:...

. .

. .

. .

. .

. .

. .

. .

... ...

.

108 115

Kenneth McFarland . . . . . . . . . . . . . 121

Lena Mae Carper . . . . . . . . . . . . . . . . 136

. Katherine Carper . . . . . . . . . . . . . . . 1 4
Oliver L Brown . . . . . . . . . . . . . . . . . 145

Darlene Watson . . . . . . . . . . .: . . . . . 166

Alma Jean Galloway . . . . . . . . . . . . . 158

Sadie Emanuel . . . . . . . . . . . . . . . . . . 160

. Shirley Mae Hodison . . . . . . . . . . . . . 164
James V Richardson . . . . . . . . . . . . . 167

Lucinda Todd . . . . . . . . . . . . . . . . . . . 169

Marguerite Ernmerson . . . . . . . . . . . 171

Zelma Henderson . . . . . . . . . . . . . . . . 173

Silas Hardwick Fleming . . . . . . . . . .

. Hugh
James

WH.

Speer . . . . Buchanan

. .

. .

. .

. .

. .

. .

. .

. .

. .

. .

. .

. .

. .

. .

. . R S B. English . . . . . . . . . . . . . . . . .

. Wilbur B Brookover . . . . . . . . . . . . .

176 182 233 248 263

. Louisa Holt . . . . . . . . . . . . . . . . . . . . . 272
John J Kane . . . . . . . . . . . . . . . . . . . 283

Bettie Belk . . . . . . . . . . . . . . . . . . . . . 291

Dorothy Clarence

.Crawford
(f Grimes

.

. .

. .

. .

. .

. .

. .

. .

. .

. .

. .

. .

. .

. .

. .

303 309

Thelma Mifin . . . . . . . . . . . . . . . . . . 317

Kenneth McFarland (Recalled) . . . . 331

Ernest Manheim . . . . . . . . . . . . . . . . . 342

Colloquy between court on counsel . . . . . . . . . . . . . . 347

Opening argument on behalf of plaintiff . . . . . . . . 349

Argument on behalf of defendants . . . . . . . . . . . . . 368

Closing argument on behalf of plaintiff . . . . . . . . . 372

Colloquy between Court and counsel. . . . . . . . . . . . 377

Reporter's certificate . . . . . . . .(omitted in printing) . . 384

Clerk's certificate . . . . . . . . . . . .(omitted in printing) . . 385

Opinion, Huxman, J. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386

Finding o f fact and conclusions of law . . . . . . . . . . . . . 393

Decrree . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397

Petition f o r appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398

Assignment of errors and prayer for reversal . . . . . . . . 400

Order allowing appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . 403

Citation on appeal . . . . . . . . . .(omitted in printing) . . 405

Note re cost bond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40.6

Statement required by paragraph 2 rule 12of the rules

of the Supreme Court (omitted in printing) . . . . . . . 407

Print
62 63 63 63 64 68 72 81 85 88 94 96 97 100 102 103 104 105 107 111 143 153 162 168 175 180 187 191 196 205 213 216 217 225 231 233

[fol. a]
IN UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF KANSAS
[Caption omitted.]
OLIVERBROWNM, rs. RIUHARLDAWTONM,rs. SADIEEMMANUEL, Mrs. Lucinda Todd, Mrs. Iona Richardson, Mrs. Lena Carper, Mrs. Shirley Hodison, Mrs. Alma Lewis, Mrs. Darlene Brown, Mrs. Shirla Fleming, Mrs. Andrew Henderson, Mrs. Vivian Scales, Mrs. Marguerite Emmerson, and
LINDAC ~ R OBLROWNan, infant, by Oliver Brown, her father and next friend,
VICTORIJAEALNAWTOaNnd CAROKLAYLAWTONin,fants, by Mrs. Richard Lawton, their mother and next friend,
JAMES MELDONEMMANUEaLn, infant, by Mrs. Sadie Emmanuel, his mother and next friend,
NANCYJANTEODDa,n infant, by Mrs. Lucinda Todd, her mother and next friend,
'
RONALDD O U ~ L ~RS ICHARDSOaNn, infant, by Mrs. Iona Richardson, his mother and next friend,
KATHERINLEOUISECARPERa,n infant, by Mrs. Lena Carper, her mother and next friend,
CHARLEHSODISONan, infant, by Mrs. Shirley Hodison, his mother and next friend,
[fol.b] THEROLNEWISM, ARTHJAEALNEWISA, RTHURLEWIS and Frances Lewis, infants, by Mrs. Alma Lewis, their mother and next friend,
SAUNDRIDAORSTELLABROWNa,n infant, by Mrs. Darlene Brown, her mother and next friend,
DUAI~DEEANFLEMINanGd SILASHARDRICFKLEMINinGfa,nts,
by Mrs. Shirla Fleming, their mother and next friend,
DONALDANDREWHENDERSOaNnd VICKIANNHENDERSON, infants, by Mrs. Andrew Henderson, their mother and next friend,

RUTHANNSCALESa,n infant, by Mrs. Vivian Scales, her mother and next friend,
$CLAUDAERTHUREMMERSOaNnd OEORQRNOBERETMMERSON, infants, by Mrs. Marguerite Emmerson, their mother and next friend, Plaintiffs, vs.
BOARODF EDUCATOIFOTNOPEKAS,HAWNCEOXUNTYK,ANSA;S Kenneth McFarland, Superintendent of Schools of Topeka, Kansas ;and Frank Wilson, Principal of Sumner Elementary School, Defendants,
and
THESTATOEF KANSASIn, tervening Defendant
No. T-316 Civil
[fol. I] AMENDECDOMPLAINT-FiledMarch 22,1951
1. ( a ) The jurisdiction of this Court is invoked under Title 28, United States Code, section 1331. This action arises under the Fourteenth Amendment of the Constitutioil of the United States, section 1,and the Act of May 31, 1870, Chapter 114, section 16, 16 Stat. 144 (Title 8, United States Code, section dl), as hereinafter more fully appears. The matter in controversy exceeds, exclusive of interest and costs, the sum or value of Three Thousand Dollars ($3000.00).
(b) The jurisdiction of this Court is also invoked under Title 28, United States Code, section 1343. This action is authorized by the Act of April 20, 1871, Chapter 22, section 1,17 Stat. 13 (Title 8, United States Code, section 43), to be commenced by any citizen of the United States or other persons within the jurisdiction thereof to redress the deprivation, under color of a state law, statute, ordinance, regulation, custom or usage, or rights, privileges and immunities secured by the Fourteenth Amendment to the Constitution of the United States, section 1,and by the Act of May 31, 1870, Chapter 114, section 16, 16 Stat. 144 (Title 8, United States Code, section 41), providing for the equal rights of citizens' and of all other persons within the jurisdiction of the United States, as hereinafter more fully appears.

tained in federal courts must be maintained throughout the trial.
I s there anything else before we proceed to the trial of the case41 If not, the Court is ready to proceed with the trial of case No. T-316, Orville Brown and others vs. Board of Education of Topeka, Shawnee County, Kansas.
Mr. Carter: If Your Honor please, plaintiffs would like to invoke Rule 43(b) of the Federal Rules of Civil Procedure and call as the first witness the president of the Board of Education, Mr. Kelsey Petry.
Judge Mellott: That is what, calling your adversary as a hostile witness t
Mr. Carter: Yes, sir. Judge Mellott: "A party may interrogate any unwilling or hostile witness by leading questions. A party may call an adverse party or an officer, director, or managing agent" and so forth. Proceed. Judge Huxman: You may proceed. Judge Mellott: The witness that was called come forward; Mr. Speer, was that his name7
[fol. 11-51 Mr. Goodell: It is my understanding that this
witness was out of the city. Judge Huxman : Who is the witness41 Mr. Goodell: Mr. Petry, who is president of the board. Judge Huxman : I s he here7 I s Mr. Petry here? Mr. Goodell: He was out of the city, I think, when the
subpoena was issued, in Colorado. Mr. Carter: Then we will call Mr. Saville. Judge Huxman : Mr. Saville present '8 Come forward and
be sworn.
ARTHURH. SAVILLhEav,ing been first duly sworn, assumed the stand and testified as follows:
Direct examination.
By Mr. Carter:
Q. Mr. Saville, how long have you been a member of the Board of Education of Topeka7
A. About twelve years.

Judge Mellott : May I have the witness' name? The Witness: Arthur H. Saville.
By Mr. Carter:
Q. What are your duties and responsibilities a s a member
of the Board of Education? [fol. 1161 A. To adopt policies that are carried out by the school administration, build a budget and various things of that sort.
Q. Does the Board of Education promulgate rules and regulations governing the entire school system of Topeka?
A. Yes, sir.
Q. You maintain, do you not, eighteen schools, elementary
schools, in Topeka that are located in eighteen territories, is that correct t
A. Elementary schoolsf I think there are twenty-two.
Judge Huxman : Isn't that all stipulated to, the number of schools that are maintained.
Mr. Carter: Yes, sir; it's stipulated to, but I am leading up to a question.
Judge Huxman : All right.
By Mr. Carter:
Q. Well, you maintain a total of twenty-two. A. I believe so, yes, that is correct. Q. Eighteen are for white children and four for negro children. A. That's right. Q. Now, why is it that the Board of Education requires negro children to attend the four separate schools in Topeka f
Mr. Goodell: Object to that as incompetent, irrelevant and immaterial and invading the province of the Court. The pleadings show the issues a.re joined, that they are doing it, [fol. 1171 and they are doing it under a permissive statute, 72-1724. The personal feelings of a board member has nothing to do-
Judge Huxman: I think the objection will be sustaine'd. Mr. Carter : I think, if I may-

Judge Huxman : It's agreed they are doing it under stat-
ute and the ordinance of the City of Topeka. Mr. Carter: I know that, Your Honor, but I think that I
would be entitled to inquire a s to whether there are any rules and regulations that the board adopted.
Judge Huxman: You did inquire that and you ask him now why they maintain them. The objection is sustained.
By Mr. Carter :
Q. I n your opinion, as a member of the Board of Education, would the board-wouldn't the board have a much simpler problem, since it must maintain the high schools on an unsegregated b'asis, to integrate negro and white cllildren a t the elementary school levelf
Mr. Qoodell: Object to that as incompetent, irrelevant and immaterial, not having. any probative force on the issues in this case.
Judge Huxman: The objection will be sustained.
By Mr. Carter:
Q. Mr. Saville, are you familiar with the document known [fol. 1181 as the comprehensive plan of the City of Topeka and Shawnee County, Kansas. I might add that this wasthis document was sponsored jointly by the Board of City Commissioners, the Board of County Commissioners and the Board of Education of Topeka and, a t the time of the sponsorship, your name, A. H. Saville, is listed as being on the board.
A. Yes. Q. You are familiar with this. A. Is that the Bartholomew plan 7 Q. Yes, sir. A. I believe I remember it. Q. Can you tell me whether or not this plan has been adopted, is being followed a t the present time by the Board of Education. Mr. Coodell: Object to that as incompetent, irrelevant and immaterial; has to do with a long-range view building plan; outside the issues of the case. Judge Huxman : The objection will be overruled. He may answer.

The Witness : Frankly, I don't remember. What was the
date of that?
By Mr. Carter:
&. The document was published May, 1945.
A. I couldn't tell you; I couldn't answer that yes or no. Q. You can't say whether before this document was [fol. 1191 published you looked a t it a s a member of the Board of Education and approved it. A. Yes, I looked a t it-I am familiar to some extent with the contents of the document, but I have no recollection at this time what's contained in it. Q. Well, if I may, I would like to address your attention to several extracts from the document and find whether this is the policy of the board or whether you approved of it. The document reads as follows, under Schools, Chapter 7. ( ( Schools and Recreational Facilities. No city affords satisfactory living facilities unless adequate parks and schools are available to all persons living therein. Just as the economic welfare of the community is largely dependent upon the extent and diversity of its commerce and industry, the mental and physical wellbeing of the population are largely dependent upon the educational and recreational facilities available. The vital role which public education plays in democracy has long been recognized. " Would you subscribe to that statement?
Mr. Goodell: We object to that as pursuit here of a n academic matter of a report prepared by Bartholomew which this witness didn't prepare.
Judge Huxman: What's the purpose of this line of questioning 7
Mr. Carter: This is a document, Your Honor, which was [fol. 1201 sponsored by the Board of Education. I t i s true that it sets u p a long-range plan. The document was prepared by Harlan Bartholomew, but it is indicated in the document that changes were made in it, and so forth, a t the suggestion of the various people here listed, the members of the Board of Education. I tliink that I am entitled to attempt to find out whether or not this witness, a s a member of the Board of Education, either had anything to do with the preparation of the document, whether he agrees with the

statements, some of the statements which are listed here and whether they are being followed. Now, Mr. Saville indicates he does not know whether this plan is now being followed by the Board of Education.
Judge Huxman: Mr. Counsel, the question before the Court in this case is not what the viewpoint of anyone is or might be as to the future, the present or the past; but it seems to me the question in this case turns upon what the City of Topeka has and is doing, and what they may think
about it is immaterial, if they' are furnishing adequate
facilities. If they are doing that, then what they are thinking about is immaterial. The objection to this line of questioning is sustained.
Mr. Carter: Your Honor, I don't want to press this point too much, but I think the Court is being unduly severe. [fol. 1211 There are statements in here which have to do with a question of the adequacy of facilities.
Judge Huxman : That is a long-range program laid down by a man, Bartholomew, who is not even a member of the
Board of Education. It has nothing to do with what the City of Topeka is doing or is not doing with regard to its
school system. No, the objection will be sustained. That line of questioning will not be pursued.
Mr. Carter : All right, Your Honor. I think that is all. Judge Huxman : Any questions t Mr. Goodell: No questions. Judge Huxman: Any need for this witness remaining longer or may he be excused from attendance? Mr. Carter: We have no further need for him. Judge Huxman : You are not required to attend further upon the Court.
(Witness excused.)
KENNETMHCFARLANhDa,ving been first duly sworn, as-
sumed the stand and testified as follows :
Direct examination.
By Mr. Carter :
Q. Mr. McFarland, you are a t present the superintendent [fol. 1221 of schools of Topeka, Kansas 4

A. Correct.
Q. How long have you been superintendent? A. Nine years.
Q. Are there any rules and regulations that you know of
that are in force with regard to the choice of schools by negro pupils in the school system, among the four that are. set aside for them O
A. Well, we have administered the schools as they were organized a t the time this administration took over in 1942. The four negro districts were established at that time.
Q. What I am driving a t is what determines, in terms of
the place in the city where a negro child lives, what determines what school that child will attend?
A. Those districts were drawn prior to 1942 and adopted by the Board of Education, and we have administered them in essentially the same form.
Q. Well, may I have what they are? A. Well, you have a map.
Judge Huxman: Doctor, what lie asks is what determines the location, if you know. I s that what you want?
Mr. Carter: I am trying to ask-there are four negro schools-the white schools-the school system is divided into territories. That apparently is not true of the negro [fol. 1231 schools. Now a. negro who lives-out let's saylet's say the Randolph area, wh'at determines what school, what colored school, be or she will attend? That is what I am trying to find out. Are there any rules about that? ered by the admitted state of facts.
Mr. Goodell: Object to this as already having been covered by the admitted state of facts.
Judge Huxman : I am sorry ;repeat that question.
(The last preceding question was here read by the reporter.)
Mr. Goodell: The objection is that this is in conflict with the admitted'statement of facts.
Judge Mellott: Was it admitted? I have overlooked it, and that is what I was asking Judge Huxman, is the reason he didn't hear you. I n paragraph 2, I believe, of your
original stipulation-

Mr. Goodell: On Page 2, Your Honor, there was thatthat portion was not agreed to.
Judge Mellott : That is what I thought. Mr. Goodell : I withdraw my objection. Mr. Carter: That is what I am trying. to find out.
Mr. Goodell: Our pleadings allege that a colored child may attend any one of the four colored schools based upon [fol. 1241 the selection of his parents.'
Judge Mellott: As I recollect it, counsel did not agree
upon that Friday, so I thiilk he should pursue it.
Judge Huxman: The witness may answer. The Witness : Theoretically, the plan would be to give the best coverage possible with four buildings in relationship to where children live and with relationship to bus routes, and so forth.
By Mr. Carter:
Q. Now, Mr. McFarland, the defendants have introduced a series of exhibits relating to school program, teacher salaries, bus schedules and transportation costs. Are you familiar with those exhibits?
A. Not in detail. I am familiar with the fact that the exhibits were prepared and delivered to the counsel.
Q. They were prepared in your office. A. By my office, yes.
Mr. Carter : If I may get the exhibit " F 9 ' ( l ) to "F"(22).
Mr. Goodell: You have copies of that. Mr. Carter: All right.
By Mr. Carter :
Q. I want to direct your attention-these a r e the exhibits. Now, those exhibits " F 7 ' ( l ) to (22) relate to the school schedule program for the school year in each of the schools, [fol. 1251 Judge Mellott : You said "F7'(22).
Mr. Carter: "F"(1) to (22) coverlng the twenty-two schools.
By Mr. Carter :
Q. That is the school. program for each of the schools. What I want to know, we do not have any information as

to the hours that school is in session. Would you have
that at your fingertips PT
A. Well, 9:00 o'clock until 4:00 o'clock is the general hour for elementary schools.
Q. Is there any difference with respect to-does that apply from the first grade through the sixth grade9
A. No, first grades convene a little later, adjourn a little earlier, so do kindergartens. They also have different schedules for the first few weeks of school than they do later.
Q. Without regard for the first few weeks of school, I would like to get the accurate figures on that, if available. When does kindergarten convene and when does it let out?
A. Well, we have let the kindergartens out a t 11:30. Q. They convene at 9 :0041 A. And convene a t 9 :00. Q. Do you have any in the afternoons 41 A. 1:30 and 3 :30. Q. 1:30 and 3 :30. A. I think most of those[fol. 1261 Q. What about the first year, the first grade 7
A. We usually, during warm weather, when the schools
first start, we are more lenient on those ;we will start about fifteen minutes later.
Q. That would be 9 :15. A. 9:15. We will let them out at 11:30 and sometimes 11:45. Q. 11:30,11:45. They reconvene a t what time? A. 1:30, 1:15. , Q. Until 4:OO. What about the second through sixth1 A. 1:I5 to 4 :00. Q. What about the morning schedule 9 A. 9 :00 to 12:00. Q. 9 :00 to 12:00. An hour for lunch. A. Right ; a n hour o r a half or an hour and fifteen minutes, depending. Q. I n order that I may be absolutely correct on this, you have half session of kindergarten, half day of kindergarten from 9 :00 to 11:30 or from 1:30 to 3 :30.
Judge Huxman : Answer, doctor. The Witness: Yes,

By Mr. Carter :
Q. You have in the first grade, you convene a t approximately 9:00 or 9:15; you let out a t approximately 11:30, 11 :45.
A. Right.
Q. And reconvene a t 1:15 to 4 :00. [fol. 1271 A. That's right; those are approximately right. There are some variations in that. We have a schedule here, if you want it, admitted in evidence.
Q. If you have the schedule. A. We have a complete schedule of that and will be glad to get it. Q. Well, I think it would be-if it's here I would like to see it because I am going to ask some questions.
Mr. Goodell: If the Court please, we introduced, and it's admitted, the program. I don't understand-do you claim they don't get as many hours of instruction?
Mr. Carter: What I am trying to find out is the hours of the classes. You have introduced the program but not the hours of the school.
Mr. Goodell: If the Court please, we submit it would be immaterial unless he claims there is disparity between the two schools a s to hours of instruction.
Judge Huxman: I don't see much probative valuc to that unless there is discrimination, if you will not pursue it too far-
Mr. Carter: I am going to ask some questions on it, Your Honor, and I think the questions will be germane. I wanted [fol. 1281 to be certain that Mr. McF'arlnnd is certain of his hours. I don't want to have an approximation, and I am not trying to lead you or trap you. I merely want to get the facts. I think it's important for us to know the school schedule.
The Witness: We should prepare a schedule and hand it
to you for every school, in that case.
By Mr. Carter :
Q. You mean there are differences 7 A. And differences in season, difference in time.

Judge Huxman: Does counsel contend there is a discrimination in those hours between colored schools and white schools 9
Mr. Carter : W e are trying to find out something which we think is-affects the school program with regard to a particular scllool in terms of-that would-it would be important for us to know what hours the classes are in session, and it is for that reason I am particularly anxious to find that out.
Judge Huxman: Do you contend there is any discrirnination between the hours in the colored schools and in the white schools8
Mr. Carter: That is not what we are directing it to, Your Honor. We would contend there is discrimination if certain facts occur with regard to the hours that the school operates. F o r example, I ~vouldbe interested chiefly in [fol. 1291 Washington School. I am chiefly interested i n what the schedule is in Washington School, particularly the first grade, kindergarten and the second to sixth grade.
Judge Huxman: Mr. Counsel, the Court feels that this is purely a fishing expedition a t this time. You don't make a n allegation that there is discrimination in the hours of school in colored schools as against the white schools. You are just, by your frank admission, you are stating that you are trying to see ~vlietherthere is or not. The Court is going to sustain this objection; going to sustain a n objection to this line of cluestioning a t this time. You have a n opportunity a t recess to get this schedule and go over it. If you can find anything material in it, why you may then pursue this line of examinatioii and Dr. McFarland will be available. But just to go into a fishing expeditioil in all of this line of testimony, the Court doesn't think it's proper. The objection will be sustained a t this time.
Doctor, you will make available to counsel those schedules for their examination, if you have them.
The Witness : We have them.
Judge Huxman : Then if you w a n t to renew your request for tKis examination later on, you may pursue it, but a t this time the objection is sustained.
[fol. 1301 Mr. Carter: The thing I want to find out, I think I can find out.

By Mr. Carter :
Q. Now, I would like to direct your attention to Exhibit
"G ", which is the morning schedule, bus schedule, to take
the negro children to school, is that correct t
A. Yes.
Judge Mellott : What is your-
Mr. Carter : Exhibit "G".
Judge Mellott : Exhibit "G".
By Mr. Carter :
Q. I understand that from-from Mr. Goodell that there was not submitted a schedule for taking the children home, but he has advised me that that would be available. Now, I would also like to address your attention to Exhibit "D" and then we can take "D" and "(3'' together.
Mr. Goodell : Exhibit what t Mr. Carter.; "D".
Judge Huxman : "D " like in dog. Mr. Garter : "D " like in dog.
By Mr. Carter :
Q. Now, I am directing your attention to both of those schedules, both of those exhibits. I note that, you-the Board of Education paid a Miss Washington for transportation of negro pupils in 1950-1951. Can you tell me what part of the schedule on Exhibit "G" Miss Washington
[f 01.1311 handled t
Judge Huxman : What is the materiality of that t
Mr. Carter: I want to find out, Your Honor-I want to find out the bus schedule for each-who is handling each of the bus schedules because we think it's material.
Mr. Goodell: We object to this as being outsideJudge Huxman: Will you state in what respect it's material. Mr. Carter: Well, for example, I want to find out whether Mr. Grimes handles both the schedule which is listed a t the top to Washington and the one listed a t Monroe; whether Mr. Grimes handles the 8:00 o'clock pick-up to

8 :29 and then-I think I want to find out how that operates. I want to find out what bus-which of these people handles the taking of the children to McKinley and which handles the taking of the children to Buchanan.
Mr. Goodell: I object to this a s incompetent, irrelevant and immaterial, and outside the scope of the issues made up by the pleadings and the admitted stipulation of facts. The two exhibits that he's asked to compare with, one of them is [fol. 1321 a regularly maintained bus; the other he has called attention to are some teachers, a n isolated case of a teacher or two in the kindergarten who has taken her private car and taken children home, which ordinarily would be done by taxi cabs or by the bus, but to let the teacher make a little extra money, at their request voluntarily, she has taken them home and has been paid by the Board of Education.
Judge Huxman: Mr. Counsel, the Court fails to see any materiality in the question a s to who drove the bus. The Court can't see how it makes any difference.
Mr. Carter: Let me pursue it for a moment; I won't take up your time, Your Honor.
By Mr. Carter:
Q. The bus schedule, as listed here, indicates that with regard to Monroe School, children are taken to Monroe; they begin a t 8 :00 o'clock; they are let off a t Monroe School a t 8 :29. NOW,it 's my understanding-I would like to have it cleared up-that this same bus driver and this same .bus
then has a pick-up a t 6th and Brannan a t 8 :30. Now I-the only way I can find that out--
Judge Huxman: Ask the witness if he knows whether that is a fact or not.
Mr. Carter: That is what I asked, Your Honor, whether Mr. Grimes handled both of these schedules. Mr. Grimes is the one who is involved in this. [fol. 1331 Mr. Goodell: Do I understand it that you challenge the accurateness of that exhibit now? You want to inquire into its accuracy, is that what you a r e getting at9
Mr. Carter: I would like to find out whether Mr. Grimes handles both of these and, therefore, I have a right to, of course, inquire into that.

Mr. Qoodell: If the Court please, we renew our objection. They have admitted the bus schedule as being accurate excepting only that they stop at additional places other than the scheduled bus stops.
Judge Huxman: The doctor may answer, if he knows. I fail to see the materiality of it.
The Witness: I don't know. Mr. Carter: All right, that's okay.
By Mr. Carter:
Q. Now, Mr. McFarland, in your schools are there anything that you call special rooms that you have set aside for white children in your public school system?
A. Yes. Q. Are there any such specia.1rooms for negro children in the public schoo1s"b A. We have no special rooms for negro children. We have health rooms for both, but not special rooms. Q. What is the nature of these special rooms'? A. Special rooms are for groups that are, for one reason
[fol. 1341 or another, unable to fit into regular classroom,
do regular work and still we would consider a s public school people.
Q. If you know, can you tell us why there are no special rooms for negro children?
A. We haven't had the need. We haven't had, we felt, sufficient numbers of them who were f a r enough out of line from the regular group to warrant special rooms.
Q. Are any provisions made in the school system for hot lunches, aside from the health rooms? I understand the health rooms are for undernourished children.
A. That's right.
Q. Aside from that, are any provisions made for hot lunches t
A. Not in elementary schools.
Q. I see. Now that would apply to the negro children regardless of the fact that whether they were too far to go home to lunch, you make no provisions for hot lunches for them, is that right?
A. Outside the health rooms, no provision. You understand we have two health rooms for four colored schools,

where we have only two health rooms for eighteen white. schools.
Q. I understand. Can you tell me, in terms of the transportation of pupils to school, if you know, can you tell me what is the number of children that are transported, negro children that are transported to school, total number. [fol. 1351 A. I couldn't give you that figure. I don't have it at hand.
Q. Is that figure available ? A. We can get that for you. Q. Would I be able to get that from you? A. Yes.
Mr. Carter: That's all. . . Judge Huxman: Any questions by defendants? Mr. Goodell: We have no questions. Judge Huxman: Anyone request the presence of Dr. McFarland any further, or may he be excused? Mr. Carter: Well, I would like for Dr. McFarland to be able to get from him the school schedule and the number of pupils transported, and I think-
Dr. McFarland : You mean class schedule or hours t You
want hours f Mr. Carter: Hours that the school is in session, that
is, including the afternoon recess. Judge Huxman : Can you furnish that, doctor ? Dr. McFarland: Yes. Judge Huxman : Will you furnish that to counsel on each
side and als? copies for the Court? Dr. McFarland: Yes, sir.
(Witness excused.)
[fol. 1361 LENAMAECARPERh,aving been first duly sworn,
assumed the stand and testified as follows:
Direct examination.
By Mr. J o h n Scott :
Q. State your name to the Court please. A. Lena Mae Carper. Q. Are you one of the plaintiffs in this action?

A. Yes. Q. Where do you live, Mrs. Carper? A. 1217 Hillsdale. Q. 1217. A. Yes.
Mr. Goodell: Twelve what t The Witness : 1217 Hillsdale.
By Mr. John Scott:
Q. Is that in the City of Topeka7 A. Yes. Q. Are you married, Mrs. Carper 7 A. Yes. Q. And do you have children or a child of school age? A. I have one. Q. What is her name7 A. Katherine Louise Carper. Q. How old is she7 A. She's ten years old. [fol. 1371 Q. Will you state to the Court what school she attends? A. She attends the Buchanan School. Q. The Buchanan School. What grade is she in9 A. Fifth grade. Q. Fifth gtade.
Mr. John Scott: For the purpose of the record, the residence the plaintiff, Mrs. Carper, has testified to appears to be in the district Gage and Randolph indicated on the official map of Topeka, the same being Exhibit-Defendants' Exhibit "A".
Mr. Goodell: No, that is our exhibit "A". Oh, pardon me. Did you say was in both of those'school districts?
Mr. John Scott: Yes, and it's also indicated on the map in the color of red and blue.
Mr. Goodell: Do you mean it's in Gage and Randolph? Mr. John Scott : Gage-Randolph. Mr. Goodell: There are two different territories. Mr. John Scott: She lives in the same district.
By Mr. John Scott :
Q. Now, Mrs. Carper, how does your child go to school9

A. She has td walk about four blocks on Huntoon and then
[fol. 13811 has to cross the highway at Huntoon and Gage and catch a school bus.
Q. What time does she catch the school bust
A. The school bus is supposed to be there a t 8:40. However, I go to work, and I go with her each morning she goes to school, and sometimes it has been as high as five minutes to nine before the bus showed up.
Q. Can you state to the Court the approximate distance from the school-strike that-the approximate distance of the pick-up point to the Buchanan School.
A. Oh, in the neighborhood of about-oh, I say about
twenty-four blocks, anyhow. Q. And can you state to .the Court what schools that you
live near 1 A. She-we live near the Gage Park or the Randolph
School. Q. Randolph Sc,hool. And is there. also a school now
under construction located at 17th and Stone? A. Yes. Q. Do you know the name of that school now under con-
struction ?' A. No, I don't. Q. Are you also located near that particular site? A. Yes. Q. Now, Mrs. Carper, do you prepare a lunch for your
child ? A. Yes.
[fol. 139.1 Q. Every day that she attends school? A. Yes.
Q. Does she come home for dinner? A. No.
Q. What time does she return home? A. She usually gets home around 4 :30.
Q. Around 4:30. Have you ever had an occasion to observe the number of people riding. the bus t.hat your child
rides.? A. When the bus comes for my child it's nearly loaded.
Q. When you say "nearly loaded" be more explicit about that, Mrs. Carper.
A. Sometimes it is really overloaded.

Mr. Goodell: Move to strike that answer as a conclusion of the witness.
Judge Huxman : Overruled.
By Mr. John Scott:
Q. And I believe you stated, Mrs. Carper, that there
have been times that the bus has been late, is that correct1 A. Many times. Q. Would that be during the cold winter months? A. Yes. Q. And what would your child and other children be doing
at that time? A. They would usually stand in the cold waiting for
the bus until they couldn't stand it any longer, and then we would take them to a small grocery store on Gage and [fol. 1401 take them in there and t r y to get them warm until the bus come. When the bus come, I would get out and hail the bus in front of the store to pick them up.
Q. Are there any shelters or any means of protection against weather conditions there on the corner where the bus stops1
A. None. Q. I s there a stop signal there a t Huntoon and Gage? A. Absolutely none. Q. Can you tell the Court what the traffic conditions are where your little girl catches the bus?
Mr. Goodell: Object to this as outside the scope of the issues and the pleadings. There is no evidence that the Board of Education has any control over safety devices, the installation or operation of them.
Mr. John Scott : If the Court pleaseJudge Huxman: Just a minute. The objection will be overruled.
By Mr. John Scott :
Q. Did you understand the question?
(The last preceding question was here read by the reporter.)
A. At that time of the morning the cars are really con-
gested going along that highway. It's really congested

traffic along there a t that time. In the morning most people are going to work at that time. [fol. 1411 Mr. John Scott: I believe that is all. You may cross examine.
Mr. Goodell : No questions. Judge Huxman : You may step down ;call your next witness.
(Witness excused.)
KATHERINECARPERh,aving been first duly sworn, assumed the stand and testified as follows:
Direct examination.
By Mr. John' Scott :
Q. Katherine, don't be nervous; these gentlemen up here are your friends. Now, what is your name%
A. Katherine Carper. Q. Katherine, how old are you t A. Ten. Q. When is your birthday? A. February 24th. Q. February 24th. A. Yes. Q. Where do you live, Katherine? A. 1217 Hillsdale. Q. What-was that your mother that was just on the stand ? A. Yes, sir. Q. Do you know the difference between right and wrong, [f 01.1421 Katherine 9 A. Yes, sir.
Q. And you know what it means to tell the truth, don't
you ? 'A. Yes, sir. Q. Now, Katherine, you attend Buchanan School, is that
correct t A. Yes, sir. Q. And you also ride the bus.
A. Yes, sir.

Q. I want you to tell these three gentlemen up herestrike that. Just tell the Court how many people, the conditions of the bus that you ride when you catch it in the morning,
A. I t is loaded, and there is no place hardly to sit. Q . There is no place hardly to sit, is that right "d A. No, sir. Q. People are standing up. A. Yes, sir. Q. And you have stood on the corner when it was cold, is that right? A. Yes, sir. Q. And did your hands get cold? A. Yes, sir. Q. Now what grade are you in, Katherine? A. Fifth. [fol. 1431 Q. Fifth grade. A. Yes, sir. Q. Do you know what time you arrive a t school in the morning ? A. Quarter to nine. Q. And what time does school-what time does school start t A. Nine o 'clock. Q. Nine o'clock. And what time do you get out a t noon? A. Quarter to twelve. Q. Quarter to twelve. A. Yes, sir. Q. Do you know what time the first grade gets out? A. Eleven thirty. Q. And do you know Mrs. Crawf ord 1 A. Yes, sir. Q. What grade does she teach? A. The first and half the second. Q. I s that a t Buchanan School? A. Yes, sir. Q. And does she do anything else other than teach school? A. Takes the kindergarten home. Q. The kindergarten children home. A. Yes, sir. Q. What time does she take the kindergarten children home t

A. Eleven thirty. Q. Eleven thirty. And what does she do with her class? [fol. 1441 A. Let's, them go into Miss McBrier's room. Q. Mrs. McBriert
, A. Yes, sir. Q. What grade does she teach7 A. The third and half the second. Q. The third and half the second. I s her class out a t the time that Mrs. Crawford's children go in there?
A. Yes, sir. Q. They are out. Katherine, I want you to tell these three gentlemen what the conditions of the bus in the evening are when you go home. A. Sometimes when I get on the bus it is loaded, and there is no place to sit. Q. And are the children sitting on top of each other? A. Yes, sir.
Mr. Goodell: We object to this whole line of leading questions of counsel testifying rather than the child.
Judge Huxman: They are slightly leading, but try not to lead the witness. The objection is overruled.
By Mr. John Scott:
Q. I n your neighborhood, Katherine, do you live in a neighborhood with white children?
A. Yes, sir. Q. Do you play with them? [fol. 1451 A. Yes, sir. Q. What schools do they go tot A. Randolph.
Mr. Goodell: I object to that as incompetent, irrelevant and immaterial, outside the issue.
Judge Huxman: Objection to this line of questioning will be sustained.
Mr. John Scott: I believe that is all. Judge Huxman: Any questions? You may be excused.
'(Witness excused.)
Mr. Goodell: If the Court please, if bhey will tell me where these children live, what the distance is to the pick-up point, we will agree to all of this and shorten this up.

Judge Huxman: They are entitled to make their cake. We will proceed this way, a t least presently.
OLIVELR. BROWNh,aving been first duly sworn, assumed
the stand and testified as follows:
Direct examination.
By Mr. Bledsoe :
Q. You may state your name to the Court, please. A. Oliver Leon Brown. Q. And where do you live, Mr. Brown? [fol. 1461 A. 511 West First Street. Q. Are you a citizen of the United States? A. I am. Q. And you are a plaintiff in this lawsuit? A. I am.
Judge Huxman: Talk a little louder, Mr. Brown. Judge Mellott: He didn't answer yet. The Witness : Yes.
By Mr. Bledsoe:
Q. What is your business or occupation l A. Carman welder.
Mr. Bledsoe : Speak a little louder. The Witness: A carman welder. Judge Huxman: Mr. Brown, it's difficult to hear you.
I wish you would make a n effort to speak so we can hear you
distinctly; we want to hear what you say.
By Mr. Bledsoe:
Q. Are you married? A. Yes. Q. .And, if so, who constitutes the members of your family A. I do. Q. What I mean by that, who constitute the members of your .family 9 A. I have a wife and three children.

Q. What are the ages of your children? .
[fol. 1471 A. My oldest daughter is eight years old; I
have one four and another one five months. 'Q. What is the name of your daughter, oldest daughter? A. Linda Carol Brown.
: Q. I n what school district or territory d o you live, Mr. Brown?
A. I live in the Sumner District. Q. Sumner School District. A. Yes.
Mr. Bledsoe: F o r the purpose of the record, if the Court please, let it be shown that the witness resides in Sumner School District. I think it's this district here marked (indicating on exhibit)-that is colored red.
Judge Mellott: Well, I am afraid your testimony standing alone isn't too intelligent; it isn't to me. Now, a s I understand it, Topeko is one school district, you agreed a t
the pre-trial, but you said that there were certain territories.
Mr. Bledsoe: Well, I may susbstitute territory forif I may-territory for district.
Judge Huxman: Wouldn't it be more helpful to the Court if you just had these witnesses locate their residence with reference to the colored scliool that they attend, rather than having it defined by the various territories. [fol. 1481 That is the important factor, how f a r they are from school.
By Mr. Bledsoe :
Q. Now, Mr. Brown, where do you live with reference to
MoAn.roWeeSllc,h-oolsBtated that I live a t 511 West F i r s t Street
which is fifteen blocks, approximately, from Monroe School.
Mr. Goodell: I didn't get that.
Judge Mellott: Fifteen blocks from Monroe School. The Witness : Twenty-one blocks, pardon me ; approximately twenty-one blocks.
By Mr. Bledsoe :
Q. You are talking about now the way your daughter has to travel to go to Monroe School, is that correct7

A. That is true. Q. Does your daughter ride the school bus f A. Yes, Q. All right. Now, Mr. Brown, what time does your daughter leave home in the morning to walk to First and Quincy, the bus pick-up point, to go to school; whah time does she leave home ? A. She leaves a t twenty minutes 'till eight o'clock. Q. Twenty minutes of eight. A. Every school morning. Q. What time, or thereabouts, does she board the bus [fol. 1491 a t First and Quincy? A. Well, she is supposed to be there a t eight o'clock and which she has been, in many instances, but many times she has had to wait through the cold, the rain and the snow until the bus got there, not knowing definitely what time it gets there all the time. Q. All right. Now, Mr. Brown, she boards that bus about eight o'clock. What time does she arrive a t the school 9 A. She's supposed to arrive a t the school around 8 :30. Q. Eight thirty. And, as I understand it, what time does the classes begin a t school? A. Nine o'clock. Q. What does your daughter do between the time the
bus arrives a t the school at 8 :30 and 9 :00 o'clock?
A. Well, there is sometimes she has had to wait outside the school until someone came to let them in, through the winter season and likewise, many times.
Q. What else does she do, if anything? A. Well, there is nothing she can do except; stand out and clap her hands to keep them warm or jump up.and down. They have no provisions at all to shelter them. Q. And what you want the Court to understand is that your daughter is conveyed to the school, she gets there by 8:30 in the morning, and that she has nothing to do until school starts, at 9:00 o'clock, is that right? [fol. 1501 A. That is correct. Q. Now, Mr. Brown, you don't-withdraw that, please. What provisions are made by the school board for your daughter to have warm lunch, if any. A. There are no provisions made a t .all.

Judge Huxman: Mr. Bledsoe, hasn't it been agreed and testified to by Dr. McFarland that no provision is made
for warm lunches? Mr. Bledsoe: I beg your pardon; I believe you are cor-
rect, if the Court please. Judge Huxman: That stands admitted, doesn't it? Mr. Bledsoe: That's right; that is all right. Let me
withdraw that, please.
By Mr. Bledsoe :
Q. Now, then, your child-you don't get to see your child during the daytime until she returns home in the evening, is that right?
A. That is correct, sir. Q. Would you, Mr. Brown, would you like to have your daughter home, have the same opportunity of giving her parental guidance as the white fathers and mothers might do their child. A. Yes, sir.
Mr. Goodell : W e object to the form of that question as assuming a state of facts not in evidence and, in fact, con[fol. 151] trary to some of the admitted stipulation of facts.
Judge Huxman: The objection will be sustained.
By Mr. Bledsoe :
Q. But you do not see your daughter from the time she leaves in the morning until she returns in the evening, is that correct 41
A. I do not. Q. What time is that? A. She gets home around fifteen minutes to five. Q. Fifteen minutes to five. Do you know whether o r not there is any provisions made to shelter or protect your daughter while she is standing on the street or the designated bus pick-up----
Judge Huxman: Mr. Bledsoe, that has been testified to, a n d 'I think it's conceded no shelter i s provided in any of these points where colored children are picked up, is that not so, Mr. Goodell7
Mr. Goodell: That's right.

By Mr. Bledsoe :
Q. Now, Mr. Brown, what is the condition of the area there between your residence and First and Quincy where your daughter boards the bus?
A. Well, there are a considerable amouni of railroad tracks there; they do a vast amount of switching from the Rock Island yards and from the time that she leaves [fol. 1521 home until she gets to Quincy, First and Quincy, to board the bus, she has to pass all of these switch tracks and she-also including the.main thoroughfare, Kansas Avenue and First; there is a vast amount of traffic there morning and evening when she goes and returns. There is no provisions a t all made for safety precautions to protect those children passing these thoroughfares a t all.
Q. Now, Mr. Brown, if your daughter were permitted to attend Sumner School would there be any such obstructions or any such conditions as she will meet on her way to First and Quincy ?
A. Not hardly as I know of.
-Q. How far is it from your residence to Sumner School? A. Seven blocks.
Q. Seven blocks. Mr. Brown, are you assessed a tax for the support and maintenance of the public schools of the City of Topeka?
A. I am.
Mr. Goodell: We object to that, if the Court please; it's wholly outside the scope-
Judge Huxman: He may answer. The Witness: I am, sir.
By Mr. Bledsoe :
Q. Mr. Brown, do you consider it an advantage to have a school in the neighborhood in which you live near your home ? Do you consider that an advantage? [fol. 153,] Mr. Goodell: We object to that a s incompetent, irrelevant and immaterial what he considers.
Judge Huxman: Objection sustained. Mr. Bledsoe: If the Court please, I believe that is really a part of our case.

Mr. Goodell: If the Court please, every parent would like to have a school next door, but that is impossible.
Judge Huxman: I think it flows natura1l.y it's a n advantage to live closer to a school than to have one far away. I don't think we need to spend much time to establish that fact. I think the Court will take judicial lrnowledge of the fact that if i t had children of school age i t would rather have them go to a close school than one f a r away.
By Mr. Bledsoe :
Q. Mr. Brown, is there a more direct route froin your residence, 511 West First Street, to the bus pick-up point a t First and Quincy; is there any more direct route than there t
A. Than just my family do you meant Q. No, for your daughter going down to the bus pick-up point, is there a more direct route for her to travel? A. No, there isn't. Q. There is not.
Judge Huxman : Any questions?
[fol. 1541 Cross-examination.
By Mr. Goodell :
Q. Mr. Brown, you see that map there, Defendants' Exhibit "A""?
A. I do. Q. You understand that the portions colored there form the school territory f o r the whole city of Topeka. A. I do. Q. And, directing your attention to the corner here or all the area in blue, you understand that that is territory outside of the city limits of Topelra, but in Topeka for school purposes alone. A. I understand. Q. What? A. I understand that. Q. You say your child goes four blocks to the bus pick-up point. A. She goes six blocks to the pick-up point.

Q. Six blocks, pardon me. Don't you know as a matter
of fact that in many, many instances there are children that go to the white schools in this town that go thirty and thirty-five blocks and walk to get there.
Mr. Carter: I object to that. The Witness : Where at ? Mr. Carter: I see no materiality to this question. [fol. 1551 Judge Huxman : Objection will be sustained. That is not proper cross-examination of this witness. Mr. Goodell : No further questions. Judge Huxman: The Court will take a s'hort recess of approximately ten minutes.
(The Court then, a t 11:15 o'clock a.m., stood at recess until 11:25 o'clock a.m., at which time the following further proceedings were had :)
Judge Huxman : You may proceed :
DARLENWE ATSONh,aving been first duly sworn, assumed the stand and testified as follows:
Direct examination.
By Mr. 'Bledsoe :
Q. State your name to the Court, please. A. Darlene Watson. Q. Where do you live7 A. I live at 508 West First. Q. Do you have children of school age? A. Yes, I do. Q. And what school do your children attend? A. They go to Sumner. Q. Sumner School. Are you acquainted with Oliver Brown and his family, the Oliver Brown who just left the stand. A. Yes; we are neighbors. [fol. 1561 Q. You are neighbors. Now, Mrs. Watson, are you able to tell the Court what time Linda Brown leaves in the morning to go to school?

Mr. Goodell: We object to this as repetition; simply cumulative; already been testified to.
Judge Huxman: .Yes, this evidence is cumulative but plaintiff is entitled to reasonable .latitude.
Mr. Goodell: We will admit the time you say is right; we will admit that.
Judge Huxman : You may answer. The Witness : I have watched her leave a t 7 :40.
By Mr. Bledsoe :
Q. Now, do you have a son who attends Sumner School? A. Yes. Q. Whab time does you son leave ;you live directly across tQe street from Mr. Brown. A. That's right. Q. Now, what time does your son leave to go to Sumner School t
Mr. Goodell: We object to this as incompetent, irrelevant and immaterial, and bot tending to prove any burden within the scope of the 14th Amendment which is what this lawsuit involves, for the reason that if this is a proper inquiry, then we have got to subpoena all of the parents of the white children and show in some cases they live [fol. 1571 thirty-six blocks away, and they have to leave maybe a t 7 :15. It's pure accident where families may live close to schoolhouses. W e can't have schoolhouses next door to everybody.
Judge Huxman: The objection will be overruled. The Witness: My boy leaves a t 8:40, twenty minutes of nine. Q. Twenty minutes of nine. A. Yes. Q. How f a r is it from your horne to the Sumner School? A. It's seven blocks. Q. Seven blocks. And you just testified that Linda leaves home a t 7 :40 in the morning. A. That's right.
Mr. Qoodell: We object to this as repetition. Mr. Bledsoe : That is all. Judge Huxman: Mr. Bledsoe, speaking for myself alone,
for your future guidance, I will take judicial knowledge of

the fact that where there are only four colored schools in a town of this size, against eighteen white schools, that there are innumerable instances of this kind where colored children will go by a white school and go much farther to [fol. 1581 a colored school than they would be required to go if they had the privilege of attending the white school. That is what you are trying to establish, isn't it ?
Mr. Bledsoe: That is, if the Court please. Judge Huxman: I think we can take judicial knowledge of the fact that that is inevitable where you have only four colored schools as against eighteen white schools. Mr. Bledsoe: That is. You may take the witness. Mr. Goodell: No questions.
ALNA JEAGNALLOWAhYa,ving been first duly sworn, assumed the stand and testified as follows :
Direct examination.
By Mr. John Scott :
Q. State your name to the Court, please. A. Alma Jean Galloway. Q. Mrs. Galloway, please speak right out enough so the Court and the reporter may hear you, please. Where do you live, Mrs. Qalloway 9 A. 428 North Lake. Q. 428 North Lake. A. Yes. Q. Do you have a child or children of school age? [fol. 1591 A. Yes ;I have two. Q. Have two. How old are they7 A. One is six and one is five. Q. And do they attend any of the public schools in the City of Topeka? A. Washington School. Q . Washington School. Do you know the approximate diatance Washington School is from your residence? A. I think it's sixteen blocks. Q. How do they go to school? A. Well, they take the school bus.

Q. Where does the school bus pick them up? A. On the corner of Chandler and Greeley. Q. How far is the bus pick-up point from your residence? A. Well, it's two and a half blocks.. Q. Two and a half blocks. Are you located near any school that might be within close proximity of your home? A. Yes, State Street School. Q . State Street School. Have you ever had an opportunity to observe the conditions of the buses that take your children to school? ' A. Well, no, I haven't. Q. Are you required to fix a lunch in the morning? A. Yes. Q. And your children do not come home a t noon, is that [fol. 1601 correct? A. No. Q. What time do they arrive home in the evening9 A. Well, about five or ten minutes past four. Q. I see. And what time do they leave in the morning? A. About between 8 :20 and 8 :25.
Mr. John Scott: That will be all. You may cross-examine. Judge Huxman : Any cross-examination? Mr. Goodell: No. Judge Huxman: You may step down.
(Witness excused.)
SADIEIVIANUEhLa,ving been first duly sworn, assumed the stand and testified as follows:
Direct examination.
By Mr. John Scott: Q. State your name to the Court, please. A. Mrs. Sadie Emanuel. Q., Are you one of the plaintiffs in this actions, Mrs. Emanuel ? A. I am. Q. Where do you live? A. I live at 1606 East Third. Q. 1606 East Third Street.

[fol. 1611 A. Yea.
Q. Are you a parent of children of school age?
A. I have one boy in school. Q. How old is he O
A. He is nine years old. Q. And what school does he attend?
A. He attends Washington School. Q. Washington School.
A. Yes. Q. Do you know the approximate distance Washington is from your home ? A. Well, I don't know just exactly, but I ima'gine it would be from our place to Washington around about fifteen or sixteen blocks, I just imagine; I don't know. Q. How does your child travel to school? A. I send him to school on the city bus. Q. State to the Court why you send your child to school on the city bus. A. Well, when he was in kindergarten, the kindergarten teacher she picked him up a t our home, and then he would return on the school bus in the evenings, and I would
meet the school bus which he had about five blocks to come
from the bus line when he was in kindergarten, and
the reason why that I stopped him-after he got out of kindergarten and started in the first grade when I would
[fol. 1621 meet the school bus the children would be hang-
ing out of the bus and when they would get so far the other
larger children would push the smaller children on the ground, and I bought him a cap and when he came home he said some of the children pulled his cap off and threw
it out of the bus, so we were only just one block from the
city bus, and he has been riding on the city bus ever since, and I just didn't like it because it seemed that there wasn't any order on the school bus, and I just didn't like the con-
dition; it was so crowded and congested until I just didn't like the idea so I send him to school on the city bus.
Q. And you pay his fare each and every day.
A. I sure do. Q. Approximately how long have you been doing that,
Mrs. Emanuel7
A. Ever since he has been in the first grade. Q. What grade is he in now7

A. He is going into the fourth. Q. Do you prepare a lunch for him in the morning? A. Yes, I do. Q. Therefore he stays a t school and eats his lunch, is that
right? A. Yes.
Judge Huxman: Mr. Counsel, can't we stipulate and [fol. 1631 agree that in all instances lunches are prepared, and the colored students stay from the time they come there in the morning until they go home a t night.
Mr. Goodell: That would be true as to the children transported, but it is not an accurate statement a s to-
Judge Huxman: That is what I mean, a s to those who are transported. Can we stipulate that into the record that all colored school children who are transported stay a t the school from the morning! they.take their lunch with them and leave the school building only when school is completed in the afternoon.
Mr. John Scott: Yes, sir. Mr. Goodell:. The stipulation ought to be that they a r e not required to stay. Judge Huxman : They are not required but, of necessity, they do that. Mr. John Scott : Convenience. Judge Huxman: They have no place else to go. Mu. Goodell: Which is precisely like it is in the white schools where children live far away. Judge Huxman: We will not add that on to it. Mr. John Scott: That is your case. [fol. 1641 Judge Huxman : Nothing gained by asking each witness whether they prepare the lunch and whether their children stay there and don't come home until evening because that seems to be the pattern.
,By Mr. John Scott:
Q. I s there a school located near your home? A. Two blocks. Q. Two blocks. What's the name of that school? A. Lafayette School. Q. Lafayette School.
Mr. John Scott: I believe that is all,

Judge Huxman : Any questions ; cross-examination8 Mr. Goodell: No.
SHIR.LEMYAE HODISONh, aving been first duly sworn, assumed the stand and testified as follows:
Direct Examination.
By Mr. John Scott:
Q. State your name to the Court, please. A. Shirley Mae Rodison.
Q. Are you one of the plaintiffs in this action9 A. Yes. .
Q. Where do you live9 A. 734 Garfield. [fol. 1651 Q. Do you have a child or children of school age B A. I have one of school age. Q. What is his name8 A. Charles Hodison, Jr. Q. How old is he9 A. He is nine. Q. Do you know what grade he is in9 A. He is in the fifth. Q. What school does he attend. A. Buchanan.
Judge Mellott : What school? The Witness : Buchanan.
By Mr. John Scott:
Q. Does he ride the school bus? A. Yes, he does. Q. What time does he-do you prepare him to catch the school bus in the morning3 A. Well, I have him to leave about ten after eight.
Mr. Goodell: If the Court please, we don't want to be obstreperous. We object to this whole line of questioning on the basis that it' could not furnish the basis of recovery, distance travelled, and a long line of decisions by the federal

courts have held that that is not such a situation that would invoke the 14th Amendment. I have a long line of decisions on that.
Mr. John Scott : We have[fol. 1661 Mr. Goodell: That is, those are disparities that are bound up here in any school system, and it occurs within the white districts and that that is not a ground for invoking the equal protection of the laws.
Judge Huxman: The objection will be overruled and, if a study of the authorities should convince the Court that
this. testimony is incompetent, of course, it would be dis-
regarded in reaching our conclusion. We can't stop to analyze all the cases at this stage.
By Mr. John Scott:
Q. What time did you say he left for school? A. Ten after eight. Q. I s that the time the bus arrives? A. It's supposed to be there about a quarter after. Q. And where do you catch the bus? A. On 7th and Garfield. Q. On 7th and Garfield. That is a block from your home. A. J u s t about; I live the second house from the corner of 8th and Garfield. Q. Do you know the approximate distance Buchanan School is from your home? A. I am not sure; I believe it's about eight bloclcs, I imagine. Q. Would you say twelve 7 A. I am not sure. Q. Do you know what time your child arrives a t school? [fol. 1671 A. No, I don't. Q. I s there a school located near your home? A. Yes. Q. What's the name of that school? A. Clay. Q. Clay School.
Mr. John Scott: It has already been stipulated about the
lunches so we don't have to go into that. Judge. Huxman .: Any questions ?
Mr. Goodell: No questions.

JAMVE. SRIOHARDSOhNa,ving been first duly sworn, assumed the stand and testified as follows:
Direct examination.
By Mr. Bledsoe :
Q. State your name to the Court, please. A. James V. Richardson. Q. Where do you live, Mr. Richardson? A. 1035 Jewell. Q. 1035 Jewell. Do you have a-children of school age1 A. One boy. Q. What is his name? A. Ronald. Q. Did you tell me how old he was? A. Seven years old. [fol. 1681 'Q. Seven years old. What school does he now attend ? A. Holy Name.School. Q. The Holy Name. That is a parochial school? A. That's right, sir. Q. Why do you send your child to a parochial school,
Mr. -
A. Simply because I do not believe in segregation.
Mr. Goodell: Move to strike out that testimony as incompetent, irrelevant and immaterial.
Judge Huxman : The objection will be overruled.
By Mr. Bledsoe :
Q. Now, did your child ever attend Buchclnan School? A. Yes, sir. Q. How far is Buchanan School from you? A. Oh, approximately ten or eleven blocks. Q. How far is Lowman School fromA. Two or three blocks. Q. Two or three blocks.
Mr. Bledsoe: I believe that's all. Judge Huxman : Any questions t Mr. Goodell: No questions. You may step down.
(Witness excused.)

[fol. 1691 LUCINDATODD,having been first duly sworn, assumed the stand and testified as follows:
Direct examination.
By Mr. Bledsoe :
Q. State your name to the Court, please. A. Lucinda Todd. Q. Where do you live, Mrs. Todd? A. At 1007 Jewell. Q. Do you have a daughter of school age? A. Yes, I do. Q. Now what school does your daughter attend? A. Buchanan. Q. Buchanan School. How far is Buchanan School from your residence ? A. About ten blocks. Q. About ten blocks. I s there a school nearer your home thanA. Yes, there is. Q. What school is that? A. Lowman Hill. Q. How far is that school from your residence? A. About three blocks. Q. Does your child ride the bus? A. Yes, she does. Q. What time does she leave in the morning? [fol. 1701 A. About twenty minutes of nine. Q. About twenty minutes of nine. And of course she doesn't return for the noontime. A. No. Q. She does not. What time does your daughter get home in the evening9 A. About four fifteen, four twenty.
Q. And she rides-comes home on the bus, does she? A. Yes, she does.
Q. Have you noticed the condition of that bus as to how many rides it?
A. Yes, I have ;it's very crowded..
Q. Mrs. Todd, do you know of any instances where your daughter suffered from waiting for the school bus?

A. Oh, many instances; she has been stranded on the corner waiting for the bus from a half-hour to forty-five minutes many times.
Mr. Bledsoe: I believe that is all. Judge Huxman : Any questions 'I Mr. Goodell: No questions. Judge Huxman : You may step down, please.
(Witness excused.)
[fol. 1711 MARGUERITEEMMERSOhNa,ving been first duly sworn, assumed the stand and testified as follows:
Direct examination.
By Mr. John Scott:
Q. State your name to the Court, please. A. Marguerite Emmerson. Q. Are you one of the plaintiffs in this action4
A. Yes, I am. Q. Where do you live?
A. 1029 Grand. Q. Are you a parent of a child or children of school age? A. Yes, I have two. Q. What are their names4 A. Claude Arthur and George Robert. Q. How old are they4 A. They are nine and eight-nine and seven. Q. Do you know what grades they are in? A. They are in the second and fourth grades. Q. What school do they attend? A. Buchanan. Q. How do they get to school? A. On the school bus. Q. What time does the school bus pick up your children? A. Around a quarter to nine and ten minutes to nine.
[fol. 1721 &. Where do they catch the bus?
A. On 11th and Woodward. Q. Has there ever been any instances that your children have missed the bus 4 A. Yes, there has been.

Q. You can state to the Court what you did, if anything. A. Well, they have missed the bus, and I have called the school, and they have sent the bus back after them. Q. They sent the bus back after them. A. Yes. Q. Have there been any instances that they missed the bus and your child didn't go to school a t all? A. No, because when he has missed the bus before that I have sent-himon tlie city bus. Q. On the city bus, I see. I s there a school located near your residence 7 A. Yes, there is. Q. What's the name of that school? A. Lowman Hill. Q. How far is it from your residence? A. About five blocks. Q. About five blocks.
Mr. John Scott: That is all. You may cross examine. Mr. Ooodell: No questions.
[fol. 1731 Judge Huxman : Step down, please.
(Witness excused.)
ZELMAHENDERSOhNav, ing been first duly sworn, assumed the stand and testified as follows:
Direct examination.
By Mr. Bledsoe :
Q. State your name to the Court, please. A. Zelma Henderson. Q. Where do you live, Mrs. Henderson? A. 1307 North Jefferson. Q. Now, Mrs. Henderson, do you have children of school age ? A. Yes, I do; I have two. Q. What school does your children attend? A. McKinley. Q. How old are your children?

A. Seven and five. Q. Seven and five. Do you have a child in the kindergarten now? A. Yes, she just completed the kindergarten. Q. In what grade-the other t A. In the first grade. Q. I s there a school nearer your residence than McKinley School ? A. Yes, there is. [fol. 1741 Q. How far is that school from---A. I would say approximately five blocks. Q. What is the name of that school? A. Quincy. Q. What time does your children 'leave home in the morning t A. All the way from 8 :15 to 8 :30. Q. Do they ride the bust A. Yes, they do. Q. And, of course, they don't come back for lunch. A. No; the little girl did a t noon, of course, but the little boy stayed all day. Q. What time would they return home in the evening? A. About 4:15. Q. Now, tell the Court whether or not you prepare lunches for your son. A. Yes, I prepare lunch but----
Mr. Boodell: Object to this as having already been stipulated to.
Mr. Bledsoe: If the Court please, I have something else I want to-
Judge Huxman: All right, you may ask.
By Mr. Bledsoe :
Q. Do you prepare lunch for your son? A. Yes, I do. Q. Tell the Court whether or not your son..is able to eat
his lunches. [fol. 1751 A. My son-
Mr. Boodell: We object to that; that might depend on a lot of things rather than that the school board-
Judge Huxman: I think the objection will be sustained.

lo7
B y Mr. Bledsoe :
Q. Have you noticed any physical difference in your son due to his eating the lunch?
A. Yes. Mr. Goodell: Wait a minute. We object to thir~a s this witness is not qualified to give an opinion of that character. Judge Huxman : Objection sustained.
B y Mr. Bledsoe :
Q. Have you observed your son ;what was his condition ? A. One month after starting to first grade he was ill.
Mr. Goodell: J u s t a minute, we object to that unless-we are not trying the physical elements of these children unless it's connected up with discrimination and violation of the 14th Amendment.
Judge Huxman : I think the answer would be immaterial. Furthermore, the question is so vague; you couldn't tell what condition was referred to. What effect the eating of a lunch would have upon one individual wouldn't throw any light on the constitutional question involved. The objection [fol. 1761 i s sustained.
Mr. Bledsoe: That will be all. Thank you. Mr. Goodell : No questions.
(Witness excused.)
SILAHSARDRICKFLEMINhGav,ing been first duly sworn, assumed the stand and testified as follows:
Direct examination.
B y Mr. ~ o h Sncott :
Q. State your name to the Court, please. A. Silas Hardriclc Fleming. Q. Where do you live, Mr. Fleming? A. 522 Liberty. Q. Are you a parent of a child or children of school age? A. Yes, sir. Q. What are there-how many? A. Two.

Q. What are their names9 A. Silas Hardrick Fleming, Jr., and Duane Dean Fleming. Q. And state to the Court their ages "b A. Well, ten and seven.
Mr. Goodell: What was that again, please? The Witness : Ten and seven.
By Mr. John Scott:
Q. What school do they attend ? A. Washington School. [fol. 1771 Q. Do you know the approximate distance Washington is from your school-I mean from your home. A. Oh, between ten, twelve blocks, I would say; I don't know the exact distance. Q. How do they get to schooI9 A. They ride the East Tenth Street bus. Q. They don't ride the school bus. A. No. Q. You state to the Court why they don't ride the school bus. A. Well, the school bus is about six or eight blocks away. It comes across Brannan Street; that is about six or seven bloclcs away from Sixth and Liberty. Q. You mean that is the pick-up point? A. .That's right. Q. I see. Qo ahead. Well, how f a r do you have-the children have to walk to catch the regular city bust A. Half a block going to school and about a block starting home. Q. Do you pay their fare? A. Yes, sir. Q. Each and every day? A. That's right. Q. I s there a school located near your home t A. Yes, there is one two blocks away from me, and there [fol. 1781 is one about four or five blocks. They pass two
schools going to their school. Q. They pass two schools. A. Two white schools, yes. Q, What's the name of those schools, if you know t A. Lafayette is one and Parkdale the other.

Q. Which of the two schools is closer to your home? A. How's that? Q. Which of the two schools that you just mention are closer to your home7 A. I guess it's Parkdale ;it's two blocks away, Parkdale. Q. You are mistakenA. It's Lafayette.
Q. Thlat's rifrht. I s there any other reason you don't permit your children to ride the school bus?
A. How's that?
Q. I s there any other reason that you don't permit your children to ride the regular school bus$
A. No; my only reason is that it's just about as far away from the bus as they would be from the school. They are only a few blocks away from the school to pick up the bus. I will ask the Court, Your Honor-
Judge Mellott : I can't hear the witness. The Witness: I would ask this for a few minutes to explain why I got into the suit whole soul and body. [fol. 1791 Mr. Goodell : We object to the voluntary statement. Judge Huxman : I can't hear what you say. Mr. Goodell': He wants to explain wliy he got in with the other plaintiffs to bring this lawsuit. Mr. John Scott: He has a right to do that. Judge Huxman: Didn't you consent to be a plaintiff in this case? The Witness : That's right. Judge Huxman : You did not ? Judge Mellott: He said he did, but he wants to tell the reason why. The Witness: I want to tell the cause. Judgq Huxman: You want to tell the Court why you joined this lawsuit ? The Witness : That's right. Judge Huxman: All right, go ahead and tell it. The Witness: Well, it wasn't for the sake of hot dogs; it wasn't to cast any insinuations that our teachers are not capable of teaching our children because they are supreme, extremely intelligent and are capable of teaching my kids or white o t black kids. But my point was that not only I and

my children are craving light, the entire colored race is [fol. 1801 craving light, and the only way to reach the light is to start our children together in their infancy and they come up together.
Judge Huxman: All right, now you have answered and given us your reason.
The Witness : That was.my reason. Mr. John Scott : Thank you.
By Mr. John Scott:
Q. J u s t one more question, Mr. Fleming. What time do your children leave in the morning to go to school?
A. About 8 :20. Q. What time do they get home in the evening? A. Oh, about 4:10 or 4:15; sometimes the bus i s a little early and sometimes late. Judge Huxman : The Court is going to adjourn presently at 12 :00 o'cloclr. Before we adjourn, we would like to request that counsel on both sides meet with the Court in the district courtroom chambers. We will adjourn to 1:30. We would like to have counsel meet us at 1:15 in the district courtroom chambers. You may announce a recess of the court until 1:30.
(The court then, a t 12:00 o'cloclc noon, stood a t recess until 1:30 o'clock p.m., a t which time court was reconvened [fol. 1811 a n d the following further proceedings were had :)
Judge Huxman : You may proceed. Mr. Goodell: If the Court please, we do have one of the records that was aslred for on the schedule, the hourly schedule, of the elementary schools. I have that record. Judge Huxman: I s that what they promised to furnish? Mr. Goodell: Yes. Judge Huxman: I don't think we have that in the record here. One of those should be marked.
Mr. Goodell: Dr. McFarland said he would furnish it. It was what the witness, McFarlsnd, Dr. McFarland said he
would furnish. Judge Huxman : And that has been prepared. Mr. Goodell: This is it. Judge Huxman : I s this offered a s an exhibit in the case ?

Mr. Goodell : Yes. Judge Mellott: What is the next exhibit number, Mr. Clerk? The Clerk: "N".
Judge Mellott: "N". Let it be admitted as Defendants'
Exhibit "N". [fol. 1821 Defendants' Exhibit "N", having been offered and received in evidence, is contained in the case file.
HUGHW. SPEERha, ving been first duly sworn, assumed
the stand and testified as follows :
Direct examination.
By Mr. Greenberg:
Q. Will you please tell the Court your name. A. Hugh W. Speer., Q. And what is your occupation t A. I am chairman of the Department of Education a t the University of Kansas City. Q. Have you ever been in public school work, Mr. Speert A. Yes, I was in public school work in Kansas for about twelve years. Q. You mentioned the Department of Education, University of Kansas City, what is the function of the Department of Education? A. Our chief function a t the present time is the training of elementary school teachers. Q. Do you train teachers eligible to teach in ICansas? A. Yes, and a number of them do. Q. How many members are on the teacl~ingstaff of your Education Department under your supervision? [fol. 1831 A. A t the present about twenty. Q. Do you have any other responsibilities at your university? A. Well, I am a member of the President's Advisory Committee; I am chairman of the Curriculum Committee of the university. Q. Do you regularly come into contact with elementary schools t

A. Yes, we conduct an elementary school of our own.
We call it the demonstration school in the summer. We do practice teaching in the public schools in our locality, which means we are in and out of the schools constantly.
Q. Would you tell us something of your educational back-
ground, Dr. Speer; where did you attend public school? A. Attended public schools at Olathe, Kansas. Q. And what universities did you attend and what de-
grees do you hold? A. I hold a Bachelor% Degree (from American Univer-
sity in Washington, D. C., a Master's Degree from George Washington University, and a PhD. Degree from the University of Chicago.
Q. What was your major field in your doctorate? A. Evaluation. Q. Would you please explain to the Court what evaluation means., A. Evaluation is a .rather general term. We sometimes
evaluate educational programs or buildings or the behavior changes that are produced in children as a result of educa[f 01.1841 tional programs.
Q. Do you belong to any profession$l organizations, Dr. Speer ?
A. I am a key member of the National Education Association, a member of the Missouri State Teachers Association, a member of the National Vocational Guidance Association; that is about it.
Q. Do you hold ally honors or scholarships? A. I have recently been granted a Fullbright scholarship by the United States ,Department of State to lecture on education in Iran.
Q. What will be the purpose of your visit in Iran? A. I will work through the University of Tehran to help improve the school system of Iran.
Q. Dr. Speer, have you ever made an examination of the
elementary schools of Topeka t
A. Yes.
Q. When? A. During the last month.
Q. Why did you make this examination, Dr. Speer t
A. At the request of counsel for plaintiffs.

&. What aspects of the schools did you examine during
your examination? A. We examined the more important aspects that we
thought had a bearing on the major issues in this case. We [fol. 1851 have examined the buildings, the curriculum, the 'equipment, the library, the preparation and experience of the teaching staff and the salaries, the class loads, the size of classes and a few other minor points.
Q. Now, I am going to ask you some questions about
your findings. What did you find concerning the comparison of teachers in the colored schools with those of the white schools?
A. I found only minor differences between the two groups, and these differences tend to balance each other. For example, in preparation, all the colored teachers have Bachelor's degree and all but 15% of the white teachers have Bachelor's degrees. On the other hand, in terms of Master's degrees, 12% of the colored teachers have Master's degree and 15% of the white teachers hold Master's degrees. The colored teachers average twenty years of experience, and the white teachers nineteen years.
Q. Dr. Speer, what did you find concerning class size and teaching load; would you explain to the Court what teaching load is9
A. Teaching load is the number of pupils which the teacher has each day and, again, here I fot~ndnot much difference. There is some difference at the kinderganden level where the colored kindergartens are somewhat smaller. I think the white average is 42 ; the colored aver[fol. 1861 age about 25. But, in grades 1to 6, the average is very close together; 34 in the white schools and 32 in the colored schools. Again, I would say, I found no significant difference in teacher load or teacher preparation.
Q. I n examining the two sets of schools, negro and white, did you find any provisions for special rooms in any of
these 9 A. I found provision f o i two special rooms for white
children; I found no provision for special rooms for any
colored children. Q. Now, did you study all of the school buildings in
Topeka, Dr. Speerf

A. Yes, we examined data in the Board of Education files on all school buildings, and we personally visited, Dr. Buchanan and I and some of my other assistants, we visited about two-thirds of the schools in the city.
Judge Hill: If counsel will let me interrupt, what do you mean by special rooms 41
Mr. Greenberg: Well, if I may explain, in the white schools there are rooms for specially retarded or handicapped children, whereas in the negro schools there are none.
Judge Hill: Very well.
By Mr. Greenberg:
Q. Did you examine these schools with regard to their age and their insured value?
A. Yes. We-
[f ol.18,7] Judge Huxman : With regard to what 41 Mr. Greenberg: Regard to their age and insured value. The Witness: On the revised list furnished by the Board
of Education we secured the ages of the buildings and also from the insured values of buildings, as provided by the Board of Education, in the exhibits, we made a study of the current values in terms of the insured values.
By Mr. Greenberg:
Q. Why did you use insurance value rather than constructioiz cost, Dr. Speer?
A. Construction cost back over the sixty-year period dates these buildings would vary a great deal which is obvious. Therefore, we could not make comparisons on construction cost; but we assumed that the Board of Educa- . tion and their insurance companies have arrived accurately at the current value of buildings, and that those values are reflected in the insurance figures furnished by the board.
Q. Is the total insurance value-does the total insurance value of the building reflect accurately the value of the building as broken down into instructional units7
Mr. Goodell: We object to this testimony from this witness. There is no foundation laid for his expert knowledge about evaluating of physical property. The testimony

[fol. 1881 shows he is ah ed~catort,haf is trhe. That is in the field of engineering and architects.
Judge Huxman: The question presupposes a knowledge
he might not have because sometimes you only insure a building for three-fourths of its value and others may be
insured for 100%. Mr. Goodell: Plus the additional reason for the objection
is that it stands admitted the physical value of the phjrsical
plants on two exhibits.
Judge Huxman: We will let the witness answer. Mr. Greenberg: May I ask him whether or not, as an educational expert he has been trained in evaluating the physical plants of buildings ? Judge Huxman: On the basis of insurance?
Mr. Greenberg: On the basis of insurance. Judge Huxman: Mr. Counsel, here's the difficulty with
that question : Suppose it is the policy of the board to insure Buildings for 25% of their-75 %--
Mr. Greenberg: I intend to bring out an explanation of that particular factor.
Judge Huxman: You don't know the basic of the insurance.
Mr. Greenberg: They insure on the basis of 80%, Your Honor, and I intend to bring that out. [fol. 1891 Judge Hill: That would be hearsay from this
witness, wouldn't it t
Mr. Greenberg: I t has been admitted in evidence by
stipulation. Judge Hill : All right. Judge Huxman: They are insured at 80.7%of their value,
is that in the stipulation? Mr. Greenberg: Your printed sheet of insurance values
of each building ;the one you have right there. Mr. Goodell: No, that doesn't mean that. We have got
an insurance clause that 80% on total loss is paid; that is
the type of insurance, but that doesn't mean that their insurability of the buildings is limited to 80%.
Judge Huxman: I think the objection to the question will
be sustained.

By Mr. Greenberg :
Q. Dr. Speer, in making your evaluation, did you take into account the fact that some buildings might have had some unused classrooms ?
A. Yes.
Q. What significance did you ascribe to that fact? A. Well, an unused classroom is very limited value to the school. We qssume that as most schools operate one class with one teacher, can profitably use one classroom.
[fol. 1901 Q. Now, did you conduct a visual inspection of any of the buildings in Topeka as well as inspecting the records which you have indicated B
A. Yes, we did.
Q. How many schools did you inspect visual1y"l A. We inspected I think it was fourteen directly.
Q. And what criteria did you use to determine which schools you would evaluate merely on the basis of the records and which schools you would evaluate by a personal visit ?
A. We first examined the records on all of them, and then, in order to substantiate our findings, we thought we should visit at least a representative sample and we visited in all two-thirds of them, making sure we got the older buildings and the newer buildings and some of the mediumaged buildings so that we would have a representation of the complete range.
Q. What criteria did you use in your visit 7 A. We used the usual criteria that are recognized in this area, such as sight, the nature of the structure, the plan of the building, the classrooms, the service rooms, the kindergartens, library books, the supplies, the safety features, the maintenance features. I might add these are the kind of features that are included by such authorities as Holly and Arnold in their scorecard for elementary school [fol. 1911 buildings. Dr. Holly is from the Ohio State University and Dr. Arnold is from the University of Pennsylvania.
Mr. Goodell: We object to this as hearsay, about what some book says about evaluation.
Judge Huxman: He is testifying as to the basis of his

knowledge of works on this. I think it's competent. This is an expert witness. He may testify.
Judge Mellott: There seems to be no unanswered question.
By Mr. Greenberg:
Q. I n order to save the time of the Court, Dr. Speer, did you make any general observations that seemed to apply to all of the buildings you visited?
A. Yes, I think I can. First of all, in regard to gymnasiums and auditoriums, the facilities, all in all, seemed to be about equal between the colored schools and the white schools. Three-fourths of the colored schools have a combined gymnasium-auditorium, and we would say approximately that proportion of the white schools have similar facilities. However, I should add that none of the colored schools have anything lilre the luxurious facilities that we would find in the Oakland building or the State Street building or the Gage Building, for example.
Q. How do the variousA. I might, if I mayQ. GOahead. [fol. 1921 A. -add one or two other general observations to save time. The buildings are all well kept, well preserved, and I think well maintained. Dr. Buchanan and I felt that that was equal throughout the system. Q. How do the buildings compare as to their ages, Dr. Speer ? A. The ages of the white buildings average twenty-seven years, according to the figures furnished by the board, and the ages of the colored buildings thirty-three years. In other words, the white buildings average six years newer. However, I think we should add another feature here. Inasmuch as the newer buildings tend to be larger, we found this to be the case, that according to last year's enrollment figures, 45% of the white children attend schools that were newer than the newest colored buildings, whereas 14% of the white children attended schools that were older than the oldest colored building. To state another kind of a comparison, 66%, or two-thirds, of all white children attend schools that are newer than the average age of the colored buildings. Q. Dr. Speer, how do the colored schools compare to the

white schools in regard to the insured value per available, classroom 4,
A. The average for the white schools is $10,517, and the
average for the colored schools is $6,317. Or, stated another way, the insured value per available classroom is 66% [fol. 1931 higher in the white schools.
Q. Dr. Speer, did you examine the curriculum in the schools in the City of Topeka?
A. Yes. Q. Tell the Court what you mean by "curriculum", also. A. By "curriculum" we mean something more than the
course of study. As commonly defined and accepted now,
"curriculum" means the total school experience of the
child. Now, when it comes to the mere prescription of the
course of study, we found no significant difference. But,
when it comes to the total school experience of the child,
there are some differences. I n other words, we consider that education is more than just remembering something.
It is concerned with a child's total development, his personality, his personal and social adjustment. Therefore it be-
comes the obligation of the school to provide the kind of an environment in which the child can learn knowledge and skills such as the three "R's" and also social skills and social attitudes and appreciations and interests, and these considerations are all now part of the curriculum.
Q. I see, Dr. Speer. Do you have anything further to say?
A. Yes. And we might add the more heterogeneous the group in which the children participate, the better tham can
function in our multi-cultural and multi-group society. For example, if the colored children are denied the experience [fol. 1941 in school of associating with white children, who represent 90% of our national society in which these colored children must live, then the colored child's curriculum is being greatly curtailed. The Topeka curriculum or any school curriculum cannot be equal under segregation.
Q. Dr. Speer, I would like to go through these-through
the school system rather rapidly now school by school and have you point out key characteristics you found as to each
school. What did you find concerning the Buchanan School in
regard to these? A. The Buchanan School is thirty years old ;the insurance

value per available classroom is $5,623. It has five rooms,

all of which are in use, including a double room divided with

sliding doors that is used for an auditorium and also for a.

playroom. The furniture is quite old, reflecting the age of

the building. The site and playground is only fairly ade-

quate. The books in the building are generally old and in

poor condition. Many titles date back to the 1920's and

even some before 1920.

Q. What did you find concerning Gage School, Dr. Speer ?

A. The Gage School, a white school, is twenty-three years

old and has an insured value per classroom of a little more

-of $9,136. I t has fifteen classrooms all in use. The build-

ing is more crowded than most, although the classes run

[fol. 1951 about average for the system. It has a good

auditorium with-it's combination-it has a kitchenette that

adjoins the auditorium and has an attractive kindergarten

room with murals, toilet facilities and a fireplace; and also

it of

has the

some old titles books in this

among the books, building are of a

but a f newer

air an

dprboeptoterrtio-n

than we found elsewhere. It has a very excellent and

spacious playground.

Q. Concerning Lafayette School, Dr. Speer.

A. Lafayette is forty-eight years old, has an insurance

value per classroom of $3,373.

Mr. Goodell: While he is making his testimony, would it be better if he designates which are the white schools.
Mr. Greenberg: Dr. Speer, when you describe a school, tell us also whether it's a negro school or white school.
The Witness: Thus far-

By Mr. Greenberg:
Q. Buchanan is what t
A. Colored. Q. What about Gage? A. White. Q. What about Lafayettea A. I s white. The Lafayette building is forty-eight years old, insured for $3,373. Although not the oldest, this is [fol. 1961 'certainly one of the poorest buildings in Topeka. The comprehensive plan suggested in 1942 by the planning commission recommended that it be abandoned but it still

houses 300 pupils. Small, the auditorium is small, and the playground is small. The kindergarten is fair; books are only fair. There are two fire escapes, but the safety factor is somewhat questionable partly due to the number of children who are housed in the building.
Q. Tell us your findings concerning the McKinley School,
Dr. Speer. A. McKinley is a colored school; it's forty-four years
old. It's insured value per available classroom is $2,477. The building was well constructed. I t has wooden floors and stairs, which make i t sometl~ingof a fire hazard. I t has one fire escape. Approximately three-fourths of the books were too old to be suitable for school use. The comprehensive plan for the City of Topeka, prepared by the City Commissioner-
Mr. Goodell : If the Court please, we object to this witness
telling about some book comprehensive plan. It's outside the scope of the issues i11this case ;secondly, it's not the best evidence; it's hearsay as far as this witness is concerned.
Mr. Greenberg :. If the Court please, may I ask Dr. Speer whether such city plans and city surveys are things which [fol. 1971 an educator customarily studies in making an evaluation.
Judge Huxman: What con~prehensiveplan are you referring to, Doctor?
The Witness : I am referring, Your HonorJudge Huxman : Bartholomew plan? The Witness : I am referring, Your Honor, to the one that was mentioned in court this morning that was prepared jointly by the Board of Education, the City Commissioners, and, I thinkMr. Goodell: Now, if the Court please, that is this wit-
ness' idea that it was prepared jointly. Judge Huxman: That plan was ruled out. We haven't
received or permitted any evidence concerning that plan. I think the witness should refrain from reference to this comprehensive plan.
The Witness: This-the site of the McKinley building is not a t all attractive and hardly adequate for school purposes. I n other words, we might say it has very poor aesthetic value.

By Mr. Greenberg :
Q. Would you tell us what you found concerning Monroe School f
A. Monroe. colored building, is twenty-four years old; it's valu,ed a t $9,760. This is, in our judgment, the best of the colored buildings. It's well constructed, has tile floors. [fol. 1981 Again, however, many of the books a r e too old for good school use. The site ,is rather small, and the building i n d site are not very attractive.
Q. And tell us about what you found concerning Oakland School, Dr. Speer.
A. The Oakland School is white; it's only one year old. It's insured value per available classroom is $23,906. It's a beautiful structurc. It's about the last word i n school buildings ;has modern furniture, asphalt tile floors, acoustical ceilings, ~ o o dlighting, good h.eating, darlrroom for
. audio-visual aids, office vault, public address system f o r use
of radio programs, music programs, has a beautiful, large combination auditorium-gymnasium very suitable for community gatherings and parent meetings, large dining and social room with a kitchen adjoining; well adapted for community meetings; has a beautiful kindergarten room with new equipment; the books still not ideal but they are very good. All in all, it's an excellent building that should provide for one of the best educational opportunities.
Q. And tell the Court what you found coneel-ning the Parkdale School.
A. The Parkdale, white, is age twenty-seven, value $8,016. The building appears to have been rather poorly con-
structed. I t has a stucco exterior for the most part. It is
[fol. 1991 in rather a n attractive location with ample playground area. The kindergarten rooni is quite dull; the books are just fairly good.
Q. And would you do 'the same concerning the Polk School.
A. The Polk School, for white children, is sixty-four years old ; it's the oldest building in Topeka. It's insured value per.room is $2,547. I t is the oldest building in Topeka, but it is not, in my judgment, the worst building. I t is surprisingly substantial, surprisingly attractive on the inside. Has a nice auditorium, two playrooms in the basement, built

of native stone ;has two fire escapes; the books in the building are very good.
Q. And what clid you find concerning the Potwin School? A. The Potwin School is white, age two years, value per room, $18,100. It's a beautiful building with very modern features. It has a spacious playground which is surfaced with asphalt. I t has a beautiful auditorium, also double playrooms. The boolrs are mostly good, a t least dating from the 1930's on, mostly. It has a Bitchen, a visual aids room. This building seems to be filled to capacity already although only two years old. It is, all in all, one that should provide an excellent educational opportunity.
Q. And what about the Randolph School, Dr. Speer. A. The Randolph School, a large school, age twenty-four, [fol. ZOO] value $6,947. It's a large building which is reasonably good, The desks are old, but the books are fairly good, the majority of them dating in the 1940's. I t has a very attractive kindergarten with a fireplace and good decorations. I t has an excellent, spacious playground. It has a beautiful row of trees which highlight the landscaping. Although it's a little old, this building is still capable of providing a very good educational opportunity. It has a small combination auditorium-gymnasium which is not adequate for the entire enrollment.
Q. IVould you please tell the Court what you found concerning State Street School.
A. State Street is a white school, age eleven years, insured value per classroom, $13,880. It's an excellent building, beautifully located, well landscaped; most of the new features, such as a public address system, beautiful auditorium, adequate gymnasium, excellent playground, has a kitchen, library room; the boolrs are fairly good but not in keeping with the building. All in all, the facilities are available to provide a very good educational opportunity, one of the best.
Q. Would you tell the Court what you found concerning Sumner School.
A. The Sun~nerSchool is wh.ite, age fifteen years, value $15,936 per room. It's another excellent building ;beautiful [fol. 2011 auditorium, a 1al:gc good gymnasium, has its public address system; the boolcs are good; very attractive

kindergarten. Again, the facilities are available for an excellent educational opportunity.
Q. Would you do the same concerning the Van Buren School.
A. Van Buren is a white school, age forty-one years, value $6,030 per classroom. Although it's an old building, it has steel stairways which eliminates some $re hazard. I t has an auditorium and a playroom ;has good pictures and good books. The one fire escape, however, is approached through a window on the second floor which might be locked or hard for children to reach in an emergency. However, the building can still provide a fair educational opportunity.
Q. Would you tell the Court what you found concerning the Washington School.
A. Washington is a colored school, thirty-six years old, valued a t $6,284. It's a fairly good building in a rather unattractive setting. One rooin seemed to be set aside for books. The books were fair; better than in most of the colored buildings. The faculty here-there mas evidence to lead us to believe that the faculty here were doing the best to make the most of their facilities.
Q. Are there other buildings that you did not visit, Dr. Speer, but concerning which you have data. [fol. 2021 A. Yes, there are, I think, eight other buildings that I have this data on.
Q. Could you rapidly go down that list and tell the Court what data you found.
A. Yes, I will very quickly read age first and value second, if I may.
Central Park, white, thirty-nine years old, $5,160. Clay, White, twenty-five years old, $12,750. Grant, thirteen years old, $15,336. Grant is a white school. Lincoln, a white school, thirty-five years old, $4,610. Lowman Hill, a white school, forty-eight years old, $5,220. Quincy, white building, forty-seven years old, $4,040. Quinton Heights, thirty-eight years old, $3,024. I might mention here that there is a new building now under construction to be called the Southwest building whioh, I presume, will be available sometime during the

coming year and, by our formula, the insured value per classroom should be about $26,660.
Q. Now, Dr. Speer, you have gone through all the schools' [fol. 2031 in the City of Topeka, and I would like to ask you some hypothetical questions which I would like you to answer on the basis of your study of the schools in the City of Topeka and on the basis of your knowledge and experience and study as an educator.
I want you to assume the following set of facts, Dr. Speer: That a negro child who lives in Topeka, where there are racially segregated schools, attends the Buchanan School, although if there were not racial segregation in the City of Topeka, because of where he lives, he would otherwise attend the Randolph School, would you say that on the basis of the evidence you have given above and the other factors which I mentioned, that he obtains the same educational opportunity at Buchanan, that he would obtain if he attended Randolph7
Mr. Goodell: To which we object as the hypothetical question assumes a fact not proven, and the fact assumes another fact that is contrary to some evidence. The fact i t assumes that if the child lived a t Randolph and there wasn't racial segregation he would attend Randolph. It
assumes that fact. It isn't necessarily so. The child, even
if you didn't have segregation, might not prefer to go to Randolph. H e might prefer to go to some school where he wasn't outnumbered. by fifty to one. Object to the question in the present form because it assumes a hypothe[fol. 2041 tical fact unsupported by any evidence.
Judge Huxman: You may answer, Doctor. The Witness: The question, as I understand it-
Mr. Greenberg: (To reporter) Would you read it back, please.
(The last preceding question was read by the reporter.)
By Mr. Greenberg:
Q. What is your answer to that question, Dr. Speert A. No, I would say he would not get the same educational opportunity for some of the following reasons: First of

all, the Buchanan building is an older building; it's thirty
years old; Randolph is twenty-four years old. The insured value per classroom for Buchanan is $5,623 ; for Randolph it's $6,947. To look a t some of the details of the buildings, Buchanan has no combined gymnasium-auditorium; Ran-
dolph has one that is not completely adequate but it will
hold several grades a t one time, The furniture-----
Mr. Goodell: Pardon me, I want to interpose another objection, that this has no probative force to show denial of equal protection of the law on this sort of a comparison because he is now demonstrating that because-that a n inequality exists because some physical plants are newer [fol. 2051 and bigger and better than other physical plants. He' is comparing, it's true, with a colored plant, but he is also in the other part of his testimony-he has shown that the same disparity exists between many white schools a s to the newer school where we have very old schools, very low cost per capita per room, classroom, and also the testimony very obviously shows no school system in the world could have buildings equal because newer buildings necessarily incorporate modern facilities not known when they were built twenty or thirty years ago.
Mr. Greenberg: May I answer that, Your Honor? Mr. Goodell: I address that to the Court, not you. Mr. Greenberg: I didn't ask you whether I could answer it. Judge Huxman: The witness may answer. The Witness: Proceeding, on the other hand, we might say that the Randolph building has these features, a much more attractive kindergarten room, more spacious playground, much more attractive surroundings which adds to its aesthetic educational value, and I would add, if I may consult my notes a moment hereMr. Greenberg: Go ahead. The Witness: That the books in the Randolph School are better than the books in the Buchanan building, in [fol. 2061 my judgment. There are better heating and lighting in the Randolph building, and I think I would add, Your Honor, that most important of all the curriculum in the Randolph building provides a much better educational opportunity than the one in the Buchanan building, be-

cause, in the Randolph building, the colored child would have opportunity to learn to live with, to work with, to cooperate with, white children who are representative of approximately 90% of the population of the society in which he is to live.
By Mr. Greenberg:
Q. Now, Dr. Speer, rather than asking you the same question again, I would like you to answer the same question,
comparing the Gage and the Buchanan Schools. Judge Huxman: Would your answers be substantiaIIy
the same, based upon substantially the same reasons? The Witness: Some of the reasons would be the same,
Your Honor. However, I believe this particular comparison the difference is greater.
Judge Huxman: Well, would be a difference of degree, otherwise your answer would be the same.
The Witness: Some of the specific details might be different.
Judge Huxman: Does that satisfy you, Mr.[fol. 2071 Mr. Greenberg: That is all right; that satisfies UB, yes.
By Mr. Qreenberg:
Q. I would, like to ask you the same question concerning a comparison of Sumner and Monroe Schools, Dr. Speer.
A. Sumner and Monroe. Again I would say for some of the same kinds of reasons that the Sumner building would provide a better educational opportunity.
Judge Huxman: May I ask the doctor a question? Mr. Qreenberg: Yes. Judge Huxman: To be sure I understand his answer, is one of the reasons which is common to all three of these, your reasoil that they are by segregation denied in all three of these schools the opportunity to mingle and live with the white children, which they would otherwise have and that, to you, is an important factor, is that part of your answer t

The Witness: Yes, Your Honor, that would enter into all of them.
Judge Huxman: I was quite sure that was it, but I wanted to be clear in my own mind that that was a part of your answer in all of these schools.
By Mr. Greenberg:
Q. Dr. Speer, I would like you to make a similar comparison between State and Washington Schools. ' [fol. 2081 A. The same curriculum reasons, of course, apply and, in addition, we find, as I stated in earlier testimony, that the State Street School is one of the better schools, and it has many features such as the P. A. system and a beautiful auditorium, an excellent playground, a library room, a kitchen that can be used to provide a considerably better educational opportunity than could be provided in the Washington School.
Mr. Greenberg: Your witness. Judge Huxman: You may cross examine,
Cross-examination.
By Mr. Goodell:
Q. Dr. Speer, if I understand your testimony correctly, boiled down t e a s to the physical facts on the comparison of buildings and facilities feature of it, elim'inating the racial feature, is it your opinion that any school, white school, that is considerably older and inferior and a wide disparity as to modern facilities, that that child going to such a white scliool is likewise being denied an equal opportunity of education?
A. It is unequal i n another sense, I would say, if I under-
stand your question correctly. Would you mind repeating the crux of it; I am not sure that I understaild you.
Q. What I am trying to say is, eliminating the racial feature and restricting your opinion entirely to comparison of plants, facilities and accessories, will you still [fol. 2091 say that a child, a white child, who goes to one of these other schools, such as Lafayette, Quinton Heights, Polk and some of these old schools, and Lowman, are

denied equal educational opportunities as against children -as compared to children who live in a territory such as Oakland and Randolph and Potwin and get to go to those new schools.
A. A child might be-might have an inferior educational opportunity in some respects, but he would not have the stigma of segregation, nor be denied the opportunity to mix with the majority group of the population. Also-
Q. I said eliminating that feature of it. Other than that, do you consider that it's an inferior opportunity as far as the white child is concerned so that he is denied an equal opportunity of education, eliminating the racial thing.
A. It might be if all other facilities are equal, but that
is a n accident of geography. Q. Well, you made comparisons between some of the
best white schools we have here in town to the colored schools, haven't you ?
A. Yes, sir. Q. Now, while we are on that subject, I will ask you to turn to Exhibit "K", which is the Board of Education's record pertaining to the original cost of these buildings [fol. 2101 and also, in the same connection-A. I don't have a copy of that here, sir. Q. I will step over here and let you see it. What I have marked on my copy here in red are the negro schools; what I have marked in blue peiicil are the white schools; you understand 8 A. Yes, sir. Q. Now, I will direct your attention, if the schools that were built about the same time, the white schools, as the colored schools, if this exhibit doesn't show the samepractically-outlay of cost and, in some instances, more
money spent for structural, or the school, and land acquisition than there were for white schools that were built a t that same period of time.
A. I think that may be possible.
Q. Doesn't the exhibit show that, the records of the
Board of Education. A. Which two buildings do you meant
Q. Well, compare Quinton Heights, which was built in
1913, at a cost of $12.640.

A. With what? . Q. We will get that in a minute, and McKinley, which was built six years earlier at a cost of $5;1,000 for the structure. A. I would say that between 1907 and 1913 building costs might have fluctuated a great deal, and I don't think[fol. 2111 I would not base a comparison on building-on construction cost with that many years intervening. That . is why we used insurance costs which are supposed to be current and accurate as prepared by the Board of Education. Q. Let's compare Lowman Hill, which is a white school built, according to the exhibit, in 1906, with McKinley. . A. May I correct you? It was built in 1901 and an addition in 1906. Q. All right. Compare that to McKinley School. A. McKinley School was built in 1907, six years later; again there may have been considerable difference in construction costs over a six-year period. They sometimes change very rapidly to the best cycle and other things. Q. Let's look a t the exhibit on the insurance values; don't you see disparity between the old white schools and the new white schoolst A. That is possible. Q. On the present insurance table-
Judge Mellott : What is the exhibit on the insurance?
Mr. Goodell: "L".
By Mr. Goodell :
Q. I call your attention specifically to some schools shown on this exhibit and their present insurance values as shown by this exhibit. Quinton Heights has a total [fol. 2121 structure insured value of $14,000, doesn't it7
A. Yes, sir. Q. Van Buren has an insured value of $46,800, doesn't it ? A. Yes, sir. Q. That is a white school. Washington has an insured value of $64,800, doesn't it7 A. Yes, sir. Q. Monroe has an insured value of $112,000, doesn't it!

A. Yes, sir. Q. So there you have got three white schools, all of which are lower present value than the colored schools,
isn't that right1 A. If I may express my view, my basis, you cannot com-
pare building by building on-even on insured cost because
some buildings are larger than others. Therefore, the only basis I was able to arrive at was an insured value
per available classroom. You have to have some kind of a common yardstick to use on all buildings. For instance, some of those buildings are twice as big as others and, therefore, their value would naturally be proportionately
greater.
I&. Do you know of any school system in the United
States-not just Topeka-in the United States, that has buildings that are equal, that there isn't great differences
based upon when they were built and the needs of the com[fol. 2131 munity at the time they were built?
A. That has not-doesn't have great differences as to their value and commodious quarters and characters that are recognized now in modern education and that are applied in modern buildings, that doesn't have great dis-
parities, those types of buildings, in any school system in the United States with buildings built twenty, thirty
or forty years ago. A. I believe there is very likely to be some disparity,
may not be great, and may not be great as compared to this group and this group, but between individual buildings, I am sure you would find some disparity if there is more than one building.
Q. You realize that school buildings are built as a community grows up and population trends-where the town grows and which way it grows determines whether buildings are located and newer buildings are added.
A. That is one factor. Q. Do you know of any way w'ay on earth to keep those facilities adequate and at the same time equal in any school
system 1 A. There are ways that it can be approached. Q. Well, just tell me how you .would approach it. A. By forming a good cooperative city planning with

the Board of Education and the City Commissioners on [fol. 2141 a long-term scale and then following it.
Q. Would you recommend that if we had a building like, say in Topeka, that cost $112,000 and is now a sound and structural safe colored building, that you tear that down because we happen to have a new building built a year ago that cost a half million dallars; would you recommend that O
A. Not merely for that reason, no. Q. What other reasons would you have for tearing it down f A. If I found that throughout the community the colored children's buildings were decidedly inferior to the buildings of the white schools, then I would consider that to be an unequal educational opportunity between the groups.
Q. Well, now, let's talk about that subject. Let's talk about Quinton Heights and Polk Street and Lafayette School and Lowman School, all of which have a physical plant value a t the time they were built and a t the present time, an insurance value less than any of the four colored schools. Do you think that makes the white children get inferior education than to the colored children going to those schools l
A. The colored children are getting an inferior education, I think, for this reason: That, as I cited in my original testimony, 45% of the white children can go to schools that are newer than the newest colored building; only 14% [fol. 2151 of the white children have to go to schools that are older than the oldest colored building, so it's a comparison of 14% against 45%.
Q . Let's get back on the track. I asked you whether o r
not, using an illustration of four white schools, if they are inferior as to value, both a t the time they were built and now, to the colored schools, do you consider that alone makes the white child that is attending those schools, Quinton Heights, Pollr, Lowman and Lafayette, receive in and of itself, receive a n inferior education.
A. Not necessarily.
Q. Well, then, why do you say that when you talk about that element a s causing the colored child-
A. Because-

Q. Wait just a minute until I ask my question, will you
please? Why do you say that when you are talking about a colored child who goes to one of the four colored schools and you compare the plant and facilities to some of the modern buildings-school buildings-in the last two or three years.
A. Because, in the first instance, we are assuming-
Judge Mellott: The witness must wait until the question is completely asked. The reporter can't get it down when you both talk a t the same time.
(The last preceding question was read by the re[fol. 2161 porter.)
Judge Mellott: Strike out the answer as partially given.
By Mr. Goodell :
Q. Why do you say in such a situation in making the comparison in the case of a negro child going to one of the four negro schools, comparing it to some of the schools built in the Topeka area, in the Topeka school system in the last two or three or four years, such as Randolph, Potwin and Oakland, that that fact alone gives the negro child an inferior educational opportunity, that would not apply in the case of the children going to the white schools that I have previously mentioned in my other question.
A. In the first instance, if I understand you correctly, I was assuming that other things were equal because of,the -as we admitted, the faculty preparation is approximately equal, the class size equal, and so forth. But, in the latter instance, other things are not equal primarily because of the difference in the curriculum which is a very important factor.
Q. All right, now, what is present in the case of the Quinton Heights white school, in the curriculum you talk about, that is not present for comparison purposes in any of the four colored schoolst
A. Because in Quinton Heights the child has the opportunity to learn his personal adjustments, his social adjust[fol. 2171 ments and his citizenship skills in the presenoe of a cross-section of the population.

Q. I asked you to eliminate the racial feature entirely and
restrict it to physical things alone; that is what I asked you.
The Witness : If the Court will permit, I don't think that we can answer an educational opportunity purely on phys-
ical features. There are too many other elements that are also involved.
Q. Mr. Speer, Professor Speer, I probably misunderstood you. I t h o u g h t 1 understood your testimony to be that because of these physical things that in and of itself, ignoring the racial thing, that that constituted an unequal educational opportunity to the negro child because of these modern buildings that he wasn't allowed to go to; is that correct, or not?
A. It is certainly one of the very important things and,
if the other factors are equal, and this one is unequal, then there may be an inequality in the total educational opportunity.
Q. Maybe I am so stupid I can't understand you. Did you not say., is it your opinion, that because of physical factors, and I mean by physical factors differences in plant facilities, of some of the white schools and the four negro [fol. 2181 schools, that alone, in and of itself, causes you to give an opinion, and it is your opinion that that child, the negro child, because of that alone, doesn't have equal educational opportunity.
A. That is a contributing factor, but I do not consider that of-that alone.,
Q. Then you didn't say that alone caused him to have an unequal opportunity.
A. No, but that coupled with other factors did cause him to have an unequal opportunity.
Q. What are the other factors rather than racial factors.
A. Curriculum factor; there is faculty; there is size of classrooms ; there is books-
&. Let's compare some white schools-let's take Quinton
Heights, Lowman, Polk and Lafayette again. What is present as to the faculty, comparing that to the faculty of the four negro schools, that is inferior or that is-there is a disparity.

Mr. Carter: I would like-I think that we have listened to this line of questioning-it seems to us that it is now objectionable. What I apparently gather from the line of examination that is being made is that the-Mr. Goodell is attempting to establish that because there are deprivations of white children that he call off the deprivations of
the negro child in segregation. We don't think that is [fol. 2191 the issue in the case.
Judge Huxman :This is cross-examination of your expert witness where the latitude is a little greater. You may proceed.

By Mr. Goodell :
Q. Restricting now for this question, I will ask you to compare and point out dissimilarities or disparities between the faculty-one thing alone now-the faculty, that is, the teaching in the four white schools, that is, Quinton, PolkQuinton Heights, Polk Street, Lowrnan Hill and Lafayette, to the four negro schools that are in issue in this lawsuit.
A. I can't answer that at the moment, sir. I would have to add up the preparation of the faculties of those four particular schools. I do not have that a t hand. I added them up for the entire system and took the entire averages, but I do not have them for those four particular schools.
Q . As far as you know, they are perfectly equal then, is that right?
A. I don't think they could be perfectly equal; that would be impossible.
Judge Huxman: Well, now, that is rather quibbling, of course. Perfect equality you can't find in two teachers any place.
Mr. Goodell :I think so. The Witness: Yes.

[fol. 2201

By Mr. Goodell:

Q. What-is the faculty, then, comparing it to the other
factor which you mentioned, curriculum, on the four white schools covered by the illustration and the four negro schools-
A. How does the curriculum compare?

Q. Yes. A. Between the two schools. As far as course of study is concerned, as far as I know, it is probably about equal but as far as the total curriculum is concerned, and that is the only basis on which I can discuss it, it is not equal. Q. What do you mean by total curriculum7 A. I mean the total school experience of the school child, what the instructions, what the books are, what the surroundings of the buildings are, what his associations with the other children are. Q. Well, eliminating that feature, the associations with the other children, which is the racial feature, what are the other part of the curriculum which is any dissimilarity or inferior factors present in the case of the negro schools and the white schools that I have used for illustration. A. In professional circles we have a term called the great "gestalt" which means the sum is greater-the whole is greater than the sum of the parts and, when we start taking into account only the parts one by one, we destroy [fol. 2211 our "gestalt", and we cannot make a wise comparison.
Judge Mellott: What was that word7 The Witness : (Spelling) G-e-s-t-a-l-t.
By Mr. Goodell:
Q. Now you come from Missouri, don't yout A. I at present live in Missouri, yes, sir. Q. You have segregated schools there, don't yout A. We have some segregated schools. On the university campus we have a mixed school. Q. I am talking about the public school system in the State of Missouri. A. Yes, sir. Q. And it is mandatory, isn't that right7 A. I presume in some cases it is. Q. Have you studied any of the various state statutes over the country which we have had for a half century concerning this segregation of studentst
Mr. Carter: Your Honor, I can't see how thisMr. Goodell. This is preliminary for another question.

Judge Huxman: I think' that is an improper question. Well, as long as it is preliminary, you may answer whether
you have or have not studied these various statutes. Mr. Goodell: I will withdraw the question.

[fol. 2221

By Mr. Goodell :

Q. You know in a great many cities and communities
of the United States there are statutes similar to the statutes here in Kansas which we have had for a half century or three-fourt-s of a century, isn't that right l
A. I presume so. Q. You know, as a practical man, laws get passed by
legislators coming from the 'various parts of their com-
munities over the state, don't you ?
A. Yes, sir.
Judge Huxman: Mr. Goodell, what is the purpose of that question? What value does that have to our problem how laws are passed?

Mr. Goodell: I am getting to that. I can't ask it all a t once. 1,am trying to get from this witness the feature as to whether he thinks elimination of racial segregation, if it's unwanted by the community and is out of step with the thinking of the community which the mere existence of the laws have some indication-
Judge Huxman: I think Dr. Speer has made it quite clear from his evidence-he has to me at least, if I understand it-that segregation, racial segregation, is the prime and controlling factor of the equality of the whole curriculum, and that these physical factors are secondary, and that his testimony, as it registered with me, is that aside from [fol. 2231 racial segregation he perhaps would not testify that there was any such inequality in the physical properties
a s would deny anybody an equal educational opportunity. Do I understand your testimony correctly?
The Witness: If I may say, Your Honor, I think I would sum up this way: That there is, in my opinion, some inequality in physical facilities between the groups in Topeka, but, in addition to that, there is also the difference of segregation itself which affects the school curriculum.
Judge Ruxman :Let's see if I can get myself straightened

out. Do you not also agree with what Mr. Goodell is trying
to bring out here-you haven 't gotten together-that if you put it on that fact, that there is inequality in physical
facilities as between the white schools and the colored schools, sometimes the greater facilities are with the colored schools against the older white schools.
The Witness: Yes, Your Honor, but they are not as many in that direction as there are in the other direction in this case.
Judge Huxman: It seems to me we are spending a lot
of time on that when that is rather, it seems to me, it would be obvious if you have an older white building [fol. 2241 than a colored building that perhaps the physical facilities in the older white building would be poorer than the colored building.
The Witness: Yes, I will agree. Mr. Goodell: I will try to shorten,this up.
By Mr. Goodell:
Q. If I understand you correctly, the basis of your opinion on saying that the mere separation-strike that. It's your opinion, then, that you can't have separate schools in any public school system and have equality, is that right?
A. Yes.
Q. And that is predicated on the-on your philosophy or your theory ,that merely because the two races are kept apart in the educational process, isn't that right, mere separation causes inequality.
A. That is one of the things which causes inequality, yes, sir.
Q. Yes. Now, assuming, Doctor, that we didn't have separate schools and they were altogether, and you still had a social situation in this community which didn't recoignize co-mingling of the races, didn't admit them on free equality, that child would run against those-run up against those things in his practical every-day world, wouldn't he ?' [fol. 2251 A. I presume so.
Q. Sir'? A. I would think so.

Q. Wouldn't that tend to cause more of a tempest and emotional strain or psychological impact if he got used to going to school with white children than when he went downtown and couldn't eat in a white restaurant, couldn't go to a white hotel and couldn't do this and that, wouldn't that make the impact greater and accentuate that very thing.
Mr. Greenberg: This witness is qualified as an expert in the field of education, and I don't believe has testified or is qualified to testify concerning segregation all over the State of Kansas or elsewhere.
Mr. Goodell: Well, I restrict it to Topeka. Judge Huxman: I think the Court will sustain the objection. That is purely argumentative. I doubt whether the doctor has qualified himself.
By Mr. Goodell:
Q. Assuming, Doctor, we will restrict this to the educa-
tional process, assuming that-that we didn't have segregation, for the purpose of this question, and assuming further we had a negro child going to Potwin or Oakland or Randolph and assuming that the population trend appears in the schoolroom as it does in our city, so that he would be outnumbered from twenty to fifty to one, assuming all that, for the purpose of this question as being true, [fol. 2261 wouldn't that cause some inferiority feeling on the part of the colored child when he went to such a school where he was outnumbered twenty to fifty to one and caused some sort of mental disturbance and upset.
A. On which basis would you rather for me to-on theory
o r on personal observation or experience t
Q. I am talking about theory here. A. And personal observation and experience. Q. Yes. A. Let me first mention the latter one; we have adjoining our campus a demonstration school of 210 students in the elementary grades and mixed in with them are about ten negro children, so they are outnumbered in that proportion, and my observation is, and the reports I receive from my assistants are, that those children are very happy, very

well adjusted, and they are there voluntarily. They don't have to attend.
Mr. Elisha Scott: I object to that. Judge Huxman: Mr. Scott, are you entered here as an attorney of record? Mr. Elisha Scott: I am supposed to be. Judge Huxman : Go ahead. Mr. Elisha Scott: I object - to that because he is invading the rights, and he is answering a question not based upon [fol. 2271 the evidence adduced or could be adduced. Mr. Goodell: You just got here; you wouldn't know. -,Mr.Elisha Scott: Yes I do know. Judge Huxman: Objection will be overruled. You may answer. The Witness: Shall I repeat the answer?
By Mr. Goodell:
Q. Have you finished? A. I think, also, on the basis of our knowledge of child behavior that we can say on a short-range basis there may be occasionally, the first time we jump into water we may be a little bit frightened, but, on a long-range basis, we generally are able to work out our adjustments and make a good situation out of it. Q. Segregation occurs, doesn't it, Doctor, in any school system among the races. I mean by that, children that come from wealthy families co-mingle with children from poor families; they go off into different cliques; that occurs, doesn't it 9 A. I t occurs sometimes. Q. Occurs frequently, doesn't it? A. Well, it all depends on your definition. Q. And the child that is left out of the swim, so to speak, he feels inferior or second-class, doesn't he 'I A. Yes, and I think we should prevent that in all cases [fol. 2281 possible. Q. You wouldn't make a new social order to prevent social strata of society, would youf
Judge I-Iuxman: Just a minute. The Court will sustain an objection to that question.

By Mr. Goodell:
Q. Have you made a survey of any of the students that
have gone to our segregated schools, the negro students, and picked them up to see what effect to their education that you call attention to as being inferior, how it's worked out in every-day life.
A. I have talked to a few of them, but I have not made
a survey of them. Q. Have you heard of anybody getting hired or a pro-
fessional man having a plant or a businessman having a customer based upon what elementary school he went to in the first grade or the second grade or the sixth grade for
that matter? A. Oh, probably not, but probably there are cases where
a person is hired or not hired on the basis of the kind of education he received in the first six grades.
Q. You don't know a thing about our community and how the negro child, when he goes through our school system, how he is received in the business world at all, do you4
A. Oh, I have known Topeka for some years. I may have
a little knowledge. [fol. 2291 Q. Do you know anything about that?
A. A little, not too much. Q. What4 A. I don't know too much about it. Q. Do you know that in the case of the junior high grades and in the senior high grades that they are not segregated? A. Yes, sir. Q. Do you think, getting back to the school system and the illustration of where the negro child would go to a school where he would be outnumbered twenty to fifty to one, and he wasn't recognized because of pure majority rule and wasn't elected head of his class or class officers or recognized in the various school activities, that that would
have any impact on such a child. A. Not as much impact as having been denied even to
get into the running. Q. You think if you got in the school and left out entirely
he would feel happy about it, would he'? A. What's that again4 Q. You think if the negro child was simply by edict of

law forced into the white school, whether the white school was ready to receive him or not, and however much he was in the minority and however much he would be left out of things, he would still be happy merely because he had found his way illto the white school, is that right? [fol. 2301 A. I think on a long-range plan he would be happier than on the other way.
Mr. Goodell: That's all. Mr. Carter: Your Honor, may we have a five-minute recess ? Judge Huxman: Yes. The court will take a ten-minute recess.
(The court then, a t 2 :40 o'clock p. m., stood a t recess until 3 :50 o'cloclc p. m., a t which time court was reconvened and the following further proceedings were had :)
Mr. Goodell: I would like to recall Dr. Speer for two short questions.
Judge Huxman: Dr. Speer, take the witness stand for a question or two further.
HUGHW. SPEERh,aving been previously sworn, reassumed the stand and testified further as follows:
Cross-examination (continued).
By Mr. Goodell :
Q. Dr. Speer, in giving your opinion here a moment ago
as to the comparison based upon library books-library or books in certain of the negro-in the negro schools to certain of the white schools covered by your testimony, did you consider, in forming that opinion, the fact that the Par[fol. 2311 ent Teachers Association in the various school territories contribute personally and raise the money to buy those books, and they are not furnished by the Board of Education.
A. Yes, I have been informed that that is sometimes the case.
&. Well, how did you segregate which books have been
bought by Parent Teachers Association and the books that have been furnished by the Board of Education'?

A. I didn't make that separation. I felt that by neglect
the Board of Education permitted an inequality to exist.
Q. Now, did you also-strike that. State whether or not any of the books in any of the libraries or rooms in the schools that you made the investigation concerning books, that a t the end of the term the books, some of them, were gone, that is, packed up in boxes.
A. Yes, we understood that, and we also understood that some of the books are regularly kept in the central office of the Board of Education, and we took that into account, knowing that the same-those books are taken out of all the schools and kept in the Board of Education, so that what remained are really the comparabIe-form the basis for comparison.
Q. So if some of the books were missing, either being packed up or gone, and you didn't know what they were, you are just basing your testimony, your considered opin[fol. 2321 ion, on what you found, is that right?
A. Sir, the books that were gone are the books that circulate among all the buildings in the course of the year, so we assume that those are equal. It's the books that are left in the building that really belong to that building, and it is on that basis that we made our differential.
Q, Were some of them packed up7 A. Some of them packed up, and we looked into the boxes.
Q. Did you take them all out volume by volume and examine them?
A. We did not examine every book in the Topeka school system, but we sampled it in an unbiased way. We sampled a large number of rooms and a large number of .buildings and a large number of boxes, but we did not examine every
book.
Q. You mean you took a book out here and there from a box and, from that, made up your mind that they were all
alike and, consequently, that is the way you got at your opinion.
A. No, sir. We took sampling in a scientific way.
Q. What do you mean scientific way?

A. W e took a sample that wa.s representative and large
enough to where we could feel confident in it.
Judge Huxman : I s that a1141
By Mr. Goodel'l:
Q. Which boolzs were bought in the various schools that you gave your opinion about-were bought by the Parent [fol. 2331 Teachers Association?
A. I don't know just which books. Some, no doubt, were but not a great many. It is not enough to affect the percentage very much.
Q. If you don't know what boolzs they were, some of the books you didn't even examine, you don't know what quantity they aze, how do you get a t an opinion a s to book facilities at the various schools?
A. On this basis, sir, that it is the books in the school that are responsible for the education of the child, and we examined the boolzs in the school and, on that basis, we made our opinion.
Q. So what you are saying, if I understand you right, the books you found and examined showed less books or inferior quality a s to date and so forth in the colored schools than the boolzs you found in the white schools, is that right?
A. Yes, sir.
Mr. Goodell: All right. Judge Huxman: Step down.
JAMEHS. BUGHANANha, ving been first duly sworn, assumed the stand and testified as follows :
Direct examination.
By Mr. Greenberg:
[fol. 2341 'Q. Dr. Buchanan, will you tell the Court your full name, please.
A. James H. Buchanan.

Q. Please tell the Court something of your educational
background. A. At the present time I am Director of the Graduate
Division, Kansas State Teachers College, and acting head
of the Department of Education. The year preceding this year I was associate professor of education a t the Kansas s t a t e Teachers College. Six years preceding that time,
from 1943 to 1949, I was superintendent of schools at Boul-
der, Colorado. From 1933to 1943 superintendent of schools in Lamar, Colorado, and, from 1930 to '33, superintendent of schools a t La Jara, Colorado, and, from 1928 to 1930, superintendent of schools in Boyero, Colorado.
Q. Dr. Buchanan, what degrees do you hold and where
were they earned7 A. I hold an A.B. Degree from Denver University, 1928;
Master of Arts Degree, University of Colorado, 1932; I have had three years-three summers of graduate study a t Harvard University, 1936, 1938, 1939, and a Doctor
of Education Degree from the University of Colorado, 1949.
Q. Have you visited any of the schools in the City of
Topeka 7 A. Yes. Q. Did you visit the Buchanan School7
[fol. 2351 A. Yes, I did. Q. Gage, Lafayette7 A. Yes. Q. McKinley? A. Yes. Q. Monroe7
A. Yes. Q. Parkdale7 A. Yes. Q. Polkt A. Yes. Q. Potwin7 A. Yes. Q. Randolph? A. Yes.
Q. State Street? A. Yes.

Q. Sumner9
A. Yes. Q. Van Buren? A. Yes.
Q. Washington t A. Yes.
Q. Did you observe the general appearance of the interior, exterior and the surrounding areas about the school $' [fol. 2361 A. I did.
Q. Would you describe what you noticed with regard to these factors in the Randolph School.
A. Well, l'would say that the Randolph School was situ-
ated in a very average residential section; perhaps above average. I think the school is a well-constructed building; it shows good signs of being in a very good state of ~ p a j r ,
l' should say, and the maintenance in it has been excellent.
The facilities in it, such a s auditorium, the classrooms and so on, are adequate to a good educational program. I would say the grounds are ample for proper play and recreation for the pupils.
Q. Would you tell us what you found concerning these factors a t the Buchanan School, Dr. Buchanan.
A. I would say that the Buchanan School is an older school. I t has been well constructed. The walls are in a good state of preservation; redecoration seems to have been done within a reasonable time and the maintenance is equally good. I think in the maintenance you have to take into consideration the age of the building, but I would say it was very good a t the Buchanan School. The playground,
it would seem to me, was ample for recreational facilities. 1think there was no auditorium in the Buchanan School, but it was my impression that adequate precautions have been made for prevention of fire or escape from the building [fol. 2371 in case of fire.
Q. I dqn't recall, Dr. Buchanan, did you say anything eoncerniqg the surrounding areas of the Buchanan School?
A. Yes, I would say the surrounding area, a s I observed it, being a stranger to the city, practically so, was not quite as substantial; certainly not as substantial a residential area a s I would say around the Randolph School.

I n other words, I would say it would reflect the general
community in which it was associated, perhaps both in age
and state of preservation of the building.
Q. Would you tell us what you found concerning the
Gage School, Dr. Buchanan.
A. Well, the Gage School is a very fine school. I would say, speaking from memory, I would say it's within a few
years of the age of the Randolph School. I have the impression it's somewhat larger. It had some very good pictures on the wall; the walls were in a good state of preserva-
tion; there was some repair work going on. There were some rooms in which they needed some repair work and were planning on doing it immediately because there were
materials placed outside the doors and, in some places, the floors were up. I would say that the playground and the landscaping is quite attractive and quite beautiful; a very nice piece of work.
Q. Would you tell us, now, what you found concerning [fol. 2381 the Sumner School.
A. The Sumner School is a newer school than Gage. I thinlr it's perhaps about ten or eleven years old. It has
quite ample-very spacious suitable classroom facilities and a nice auditorium. I think the landscaping would be nothing that anyone could take particular objection to. The general appearance of the building, I should say, was in keeping with a good school situation.
$. Will you now tell us what you found concerning the Monroe School, Dr. Ruchanan.
A. I would say the Monroe School would compare fairly well in construction, in appearance, with the Randolph School, I would rather carry them in mind. I think the Monroe School, I woud say, is about twenty-four, twentyfive years of age. It has fireproof stairways. It shows sign of good care and good maintenance and quite serviceable, I should say, for a number of years. The playground
and the landscaping in front of the building is about in keeping with the community in which it is located, I should say. Tn other words, I would say it is a credit to the com-
muni ty .
Q. And would you tell the Court about the State Street
School 9

A. Yes. I saw the State Street School. I t is a very good school, I should say; it's more or less in a class with the Sumner School, perhaps a little more modernistic, s
[fol. 2391 little more in keeping with modern design and the demands of modern education. The playground or the grounds that were vacant, which I assume were available for the children, I thought were quite adequate and quite spacious for a large enrollment. It had auditorium facilities and other features of that kind that make for a good educational situation.
Q. Would you tell us something about the area surrounding the State Street School.
A. I would say that it was quite a creditable residential section.
Mr. Goodell: I didn't hear that. The Witness: I say it was quite a creditable residential section; very good residential section.
By Mr. Greenberg :
Q. Would you tell us what you found concerning the Washington School, Dr. Buchanan ?
A. Well, the Washington School is an older school; I think it is not so old as the Buchanan School; a t least that is my impression of it. I t has been well cared for. It has an auditorium which, I would assume, for an enrollment of 150, 160 children, would be adequate for them. The maintenance there is quite a creditable thing. I would say that was characteristic of the Topeka schools. There were fourteen I visited ; I would say the maintenance and repairs were quite good. [fol. 2401 Q. I n your visit to the fourteen schools, Dr. Buchanan, did you make any general observations concerning the areas in which they exist?
A. I think I have already implied that in the answers that I have given. My observation would be that the
schools visited, the fourteen of the twenty-two schools, reflect the communities in which they are located, that is, if they are like, well, Polk, perhaps Buchanan, Gage; the varying degrees of the quality of the school is somewhat dependent upon the age of the residential region or section

of the city in which they are located. That is, you would find the better schools in the places that are comparatively newer and better developed; that would be my general observation. The poorer schools were perhaps in a region, we might say, have longer been a residential region or area of the city, which ia tending, perhaps, to slide down just a bit in quality.
Q. Can you make any general statement concerning the negro schools which you saw and the areas in which they live, Dr. Buchanan.
A. My general statement would be merely to say that they reflect the situation which I have outlined. I think they show a very good care. I think, for instance, the Monroe School, is a school that definitely loolcs the way you would expect; I think anyone who has had experience [fol. 2411 in examining or visiting schools would say that it looks about the way you would expect it to look when you see it from the outside and when you go in. It has been well cared for. All of the schools in Topeka I was impressed by the fact that there was a minimum amount of marking on the walls or disfiguring of the walls or furniture in any way, either in the white schools or the colored
schools.
Q. Did you make any general observation concerning the areas in which these colored schools existed, Doctor?
A. I would say, in general, they probably are in the areas which were not the best residential section of the city. I don't kilow that they would be the poorest, but they were not in the best residential section, and I think there was some variation there. I thought I observed some variation in the quality of the residential section.
Q. Dr. Buchanan, in evaluating the quality of education which a student obtains when attending school, does an
educator consider the physical characteristics of the school ;
I mean their appearance and the appearance which they
present to the child, along with the appearance of the area in which the school exists. I s there a direct correlation
between that and educational opportunity? A. Yes, I think that is true. I think the educator-
educators do recognize the relationship between the quality [fol. 2421 of the building, landscaping of the grounds, the

area in which it is placed as a.n important factor in educa-
tion. Q. Now, bearing that criterion in mind, Dr. Buchanan, I
would like you to make several comparisons. I want you to assume in the City of Topeka a negro child would attend Randolph School, if there were not racial segregation in the city, but is compelled to attend Buchanan because of racial segregation. Would you say that if all other factors in the City of Topeka and in the schools were equal, except these factors concerning appearance, residential area, and so forth which you have just described in answer to a previous question, if all factors were equal except those factors, would the child attending Buchanan obtain the same educational opportunities that he would obtain if he attended Randolph ?
A. I believe no; my answer would be that he would not receive the same educational opportunity.
Q. Well, bearing in mind the correlation which you stated between educational opportunity and physical appearance and area, would you explain the reason for your answer?
A. I believe that education is best facilitated when it is in a beautiful environment, where there is a building which pupils can take pride in and where they have beautiful landscaping and the interior of the building is a place where there are the maximum number of modern facilities [fol. 2431 to facilitate a good curriculum.
Q. And to the estent that these are different, you would
say that the opportunity to learn is different. A. Beg pardon; would you-
&. Would you say that to the extent that these are
different, the opportunity to learn is different?
A. Yes, I think it has a relationship to the opportunity,
yes. Q. I s this supported by the authorities in the field of
education, Dr. Buchanan ? A. I am certain it is, yes, sir.
Q. Did you say yes?
A. I am certain that it is, yes.
Q. Could you state any authorities who support this view? A. Well, I think that my number of authorities, for instance, Dr. Reeder of Ohio State University in his recent

publication on administration, "Public Education of the United States" which came from the press in 1951, just a few months ago, a revision of his book, makes that very clear. He makes that statement that the quality of a building, its setting, is an important factor in the education of a child. Strayer and Englehart, of Columbia University, who are recognized as the leading authorities in schoolhouse construction, hold that view and numerous others.

Judge Mellott: You drop your voice, and I usually get

[fol. 2441 most excepting the last drop your voice, and I can't hear

two you.

or-

three

words.

You

The Witness: I am sorry; I thought I had a very strong

voice.

Judge Mellott: You do, but you don't keep it up.

By Mr. Greenberg:
Q. Dr. Buchanan, I am going to ask you to make three more comparisons without going into as much detail, if you believe the detail you stated concerning the first comparison applies to the following schools: I would like you to compare Gage against Buchanan with regard to these criteria.
A. I would say that Gage very obviously is a better school than Buchanan.
Q. On the basis of the criterion you stated? A. Yes. Q. I would like you to compare Sumner against Monroe. A. Obviously Sumner is a better school than Monroe; a more up-to-date school, a newer school, as I have indicated. Q. I would like you to compare State Street School against Washington Street School with regard to these criteria. A. State Street is a better school than Washington School in terms of age, in the terms of these things we have talked about.
Mr. Greenberg: Your witness,

[fol. 2451

Cross-examination.

By Mr. Goodell:
Q. Dr. Buchanan, if I understand you correctly, you are stating that the plant or the building is a very important factor in the educational opportunity.
A. Yes. Q. The building a child goes to. A. Yes, indeed. Q. And, therefore, where you have one building with shrubbery around it and landscaping, which is pretty, and another building built earlier many years ago which isn't as pretty, even however strong and commodious and sufficient, if it isn't as pretty and big and new and as modern, that educational opportunity is minimized in the child that goes to that building, is that right? A. That would be-other factors being equal, I would say the better one-' Q. I am restricting it to that factor if I understood your testimony. A. That's right; I would bay that that would be detract-
ing from it. Q. The only way chi!dren in any community could have
an equal educational opportunity would be to have buildings all beautiful, built about the same time, all modern, all beautifully landscaped and everything just about alike, [fol. 2461 isn't that right?
A. As far as that factor is concerned, that is correct. Q. As a practical matter, don't you realize that we live in a practical world? A. I have lived in i t for nearly fifty years. Q. How do you think any Board of Education could have all of their buildings built at the same time, same landscaping-
Judge Huxman: You need not answer that question; that is argumentative, has no probative value.

By Mr. Goodell:
Q. Well, according to your theory, if I understand it right, if I,went to a little country schoolhouse, even though
1 had good teaching and good texts and all other facilities,

but not a building as goad as Randolph, I was in a bad way, or anybody would be in a bad way, to get an education, is that right %
A. No, that isn't my theory. My theory would be you would get a better education if you had better equipment, but you would not-I wouldn't say you would have a poor education because you went to a poorer building. You might have a very superior teacher or you might have very superior ability yourself.
Q. Buildings don't make the educated child, does it ? A. I wouldn't say entirely, no; they are a contributing
factor, but not the entire thing. [fol. 2471 Q. You compared the negro schools to Gage and Randolph and Sumner, I believe those three.
A. I think so. Q. Now, would you please compare those same schools, I mean those white schools; they are all white schools, aren't they t A. Yes. Q. -with the schools of Lafayette and Quinton Heights and Polk and Lowman and Quincy. A. Well, I didn't visit all you have named, butQ. Which did you visit 7 A. Lafayette. I visitedQ. Didn't you know we had those others? A. Yes, butQ. You didn't get around to them. A. We didn't get around to them. I would say that Lafayette compared with Gage or Randolph or Sumner would be far inferior. Q. Far inferior. A. Far inferior to it. Q. We are discriminating then against a child that
lives in that territory if he goes to Lafayette as against a child that lives-goes to Gage.
Judge Huxman: That is immaterial and need not. be answered. [fol. 2481 Mr. Goodell: No further questions.
Judge Huxman : Anything else of this witness t Doctor, you may stand aside.
(Witness excused.)

R. S. B. ENGLIShHa,ving been first duly sworn, assumed the stand and testified a s follows :
Direct examination.
By Mr. Greenberg:
Q. Will you please tell the Court your full name, Mr. English.
A. Horace B. English. Q. What i>syour occupation, Mr. English? A. I am professor of psychology a t the Ohio State University.
Q. Would you tell the Court something about your background and the degrees you hold.
A. I took my Bachelor's Degree a t Oxford University, and there I also took a certificate in cultural anthropology. Later I took the Ph.D. Degree a t Yale. As f o r my experience, I have been teaching and doing research work since 1916. I have been a full professor since 1921. During the war I was-during the first war I was psychological examiner and then chief of the re-education service in one of the hospitals. In the second world war I was a consultant on personnel problems part time for the Adjutant General's Office of the Army and then immediately after the surrender [fol. 2491 I was a morale analyist in Japan. I thenI have had a number of part-time positions; I was consultant' for the Forest Service on htunan relations. I was consultant to the West Virginia Department of Education on the curriculum in their state teachers colleges. I was chairman of the counsel on human relations appointed by the American Association for the Advancement of Science, f o r work with the Conservation Departments of the government, and I spent some six months in the study and research in the field of child development under the auspices of the American Council on Education.
Q. Have you ever held office in, or been a member of, any learned societies?
A. Yes, in the American Psychological Association I am a Fellow; I have been a member of the Council of Directors, and I have been chairman of the Committee on Professional Ethics of that association. A t the moment I am president

of the Division of Educational Psychology of that association. I n 1940 I was president of the American Association for the Advancement of Science-for the American Association for Applied Psychology, and I have been president
of the Ohio State Psychologists and the Midwestern Psychological Association. And I am a Fellow of the British Psychological Society and member of the Executive Committee of the Psychology Section of the American As-
[fol. 2501 sociati011 for the Advancement of Science.
I&. Have you ever published any books or articles in the field of education and psychology, Dr. English?
A. Published with Victor Ramey, of the University of Colorado, a book on studying the individual school child. J u s t this year brought out a textbook on child psychology, and I have published something around 150 articles in prof essional journals.
Q. Have you ever made any studies bearing on the ca-
pacities of different groups to profit by education?
A. Yes. As a matter of fact my first research, which was begun in 1912, was addressed to this very thing; the results were published in 1918. Then I was also on the team which brought out the celebrated alpha-test of intelligence in the United States Army, as I helped with the experimental work which lead to that; and 1have been continuously occupied in the field of individual differences and of group differences, and I teach that subject a t the Ohio State University. Then I also supervise somewhere between 75 and 100 students a year who make case studies of individual children
and I may add some of these are always negro children. I
have done some research studies in the field of attitudes, including two of them concerning the attitudes of negroes and, finally, in this list I have done a rather prolonged
[fol. 2511 series of experiments in the field of learning with special reference to how children learn in school, rather than mere laboratory learning.
Q. Dr. English, have you told me all the courses that you now teach a t Ohio State university?
A. No; I teach chiefly individual differences, child psychology and the more practical aspects of learning, rather than theoretical, and I aIso teach the theory of personality. Those are the main courses.

Q. Dr. English, a t this point I want to ask you a hypothetical question. I want you to assume that in the City of
Topeka there is a body of white school children and a body of negro school children, and that there is also racially en-
forced segregation in the schools. Would you say that on the basis of your learning, experience and study that on the basis of color alone there is a difference in their ability to learn 4
A. No, there certainly is not.
Q. Would you tell me, the support for your statement. A. Well, in the first place, we don't have racial groups learning; we have individuals learning and in both groups, white and negro, we have some persons who are very good
learners ;we have some persons who are very poor learners,
and we have some medium learners. You can break that down to as fine a point as you like; the range is exactly
[fol. 2521 the same. Well, I say that, as a matter of fact, with regard to school children in respect to the I. Q. which
is the best single measure of a child's ability to learn. The best I. Q. on record is that of a negro girl who has no white blood as f a r as that can be told a t all, but right after this child there are four white children, so, you see, it's-at the top it's quite equal and a t the bottom it's quite equal and in the middle it's quite equal. It's a matter of individuals
and not a matter of groups. So knowing only the color you can't predict a t all how well a child can learn. If a child
is white you can't tell from that fact alone how well that child will learn in comparison with a group of negro children and, of course, vice versa from the fact that a child is a negro you can't tell how well he will learn with respect to a group of white children. From color alone there is no telling. We know that the negro child, moreover, learns
in the same way, that he uses the same process in learning and learns the same things, but I do want to make one
exception; it's a notable exception: If we din it into a person that it is unnatural for him to learn certain things, if
we din it into a person that he is incapable of learning, then he is less likely to be able to learn.
Q. That difference is not based upon any inherent quality. A. Not a t all. It's a parallel exactly the way it is with [fol. 2531 women learning mathematics. There is sort of

a supersticion that women are naturally incapable of learning mathematics, and so they don't, most of them, learn it. They can, if they will, and some of them do, but there is a tendency for us to live up to, or perhaps I should say to live down to the social expectation and to learn what we think people say we can learn, and legal segregation definitely depresses the negroes expectancy, and is therefore prejudicial to his learning. If you get a child in the attitude that he is somehow inferior, and he thinks to himself, "Well, I can't learn this very well.", then h e is unlikely to learn it very well.
Q. Dr. English, is there any other scientific evidence to support this conclusion which you have stated other than what you have said.
A. Yes, there is a good deal. F o r example, in the last war we took the people who were illiterates. These, of course-a good many more of them were colored than whi'te, but we put them into schools to teach them fourthgrade literacy and, as a matter of fact, 87% of the negroes and 84% of the whites successfully completed the work of these schools. Now I don't inalte anything of the difference of 3% in favor of the negroes as compared with the white. That is, of course, within the range of accidental error, but I say these results do show that under favorable coi~ditions [fol. 2541 and under conditions of motivation where these men wanted to learn, the ncgro men proved that they could learn as well as the whites. Most of the scientific evidence concerns intelligence testing, which, as I said a moment ago, is the best single measure of the ability to learn, and the scientific question that we would ask is, "Are there differences in intelligence which we find? Are these differ-
ences due to race or are they due to unequal opportunities %" and the whole trend of the evidence, beginning with the work in 1912, but especially beginning after the first world war when we analyzed the scores of the recruits in the first world war, the whole trend of the evidence is this, and
there are no real exceptions to this trend, that wherever we t r y to equalize the opportunities, we minimize or extinguish the differences in learning ability a s between the two racial groups. Perhaps the best study of this is Dr. Klineberg's
study showing the results of the migration to New York

City of children from the deep south. He found-of course we all know that the schools in the south, and particularly the negro schools in the south, are by and large inferior. There are some cities in the south where the schools are
very good, but the general tendency, and especially ip the rural regions, is for the educational opportunities in the
south to be very bad and particularly bad for negroes. [fol. 2551 These things are well known in educational circles. So the negroes then coming out of these very poor school situations had very low ability to learn. They seemed stupid and their intelligence test scores were low. But each year that they were in the more favorable learning opportunities in the north, their intelligeilce quotient was rising, and the longer they were in that favorable region the more their intelligence rose, so that the conclusion is unavoidable that their previous condition was due to the unfavorable opportunities.
Q. Dr. English, is there any scientific evidence to the contrary ?
A. Very little indeed and such little evidence as there is doesn't stand up. Now, for example, there was a study by a man named Tanzer, worked with Canadian negroes in a place in Ontario. They went to the same school with the whites, and the whites were, as a group, somewhat better than the negroes. But in this study when we reanalyze the data we found that the negroes were of lower economic status, and we know that lower economic status affects these things, and we fouiid that the negro children went to school less often. In the white group the attendance was 93 and in thc colored group it was 84% of the time. With a loss of schooling like that and coming from an inferior group, the tendency is to think that the difference found was [fol. 2561 attributable to these unfavorable factors, rather than the race itself. Certainly these factors that I mention were a contributing cause, ancl I don't say they are the whole thing; they themselves reflect the whole tissue of social circumstances which somewhat discouraqed negro learning, and this is a rather typical sample of the few, the relatively few, studies which even seem to point in the
opposite direction. The overwhelming tendency is all in the direction of my first statement. May I summarize that t

It seems to me that what we have here is that the segrega-
tion tends to create-first of all, segregation seemingly is based upon a fallacy of a difference and then by the mere fact of segrefation it turns around and creates the vory difference which i t assumes to have been present to begin with, and we get into a vicious circle.
Q. Dr. English, I would like to ask you another hypothetical question now, and I would like you to answer on the basis of your experience and learning a s an educational psychologist. I want you to assume that a negro child lives within a few blocks of a school; that he lives a much greater distance from another school, which is a negro school which he is compelled to attend on the basis of race ;
that he spends perhaps a half hour, perhaps more, perhaps a n hour or two a day travelling to and from school, wherea s if he were not compelled to attend this negro school he [fol. 2571 would spend a few minutes, perhaps fifteen or twenty minutes, a day going to and from school. Would
you say that if all other factors were equal that he would receive the same benefits from attending the negro school a s he would from attending the white school?
A. Definitely not.
I&. Give us the reasons.
A. May I say-perhaps your question is, you say from attending the negro school. May I broaden it, from his
education, if the Court will permit that extension because it's the whole education of the child which is being damaged
here. The education of the child is not wholly in the classroom. The education of the child goes on on the playground, in playing with his equals and his fellows, around home. This is one of the most important things for the wholesome development of the child and, when you take a n hour a day from a child, you are taking away something very precious to his total education. I have had this in my own home because one of my children had to go to
quite a distant school because of a physical handicap, and we could see the results upon his development of this
deprivation. It was one of those things we couldn't help. I gather that what you are talking' about is something
that we could help if it were not for the presence of the
law.

[fol. 2581 Q. I s there any scientific data supporting this
opinion which you have just given, Dr. English?
A. It would be very hard to find it, for me to recall it.
It's one of those things which has such universal consent that I can't recall it ever being challenged. I am sure we see in our clinics all the time, as we examine children who are disadvantaged and who are maladjusted, we see all the time the evidence of the children who do not get out and play with others. As a matter of fact, I don't think there is any-I am sure there is no psychologist, no child psychologist in the country who would challenge the statement that there is-that the child's play is of the utmost importance and should not be unnecessarily diminished.
Mr. Greenberg: That is all.
Cross-examination.
By Mr. Goodell:
Q. Dr. English, this opinion you have rendered is some-
what founded upon theory, is it not'?' A. No, sir, i t is based upon literally thousands of experi-
mental studies. Q. How many cases have you taken, for example, of
children that have gone to segregated schools and followed them through-you yourself-and exaillined their situation in adult life.
A. Well, now to what answer of mine is that addressed. I [fol. 2591 thought you were asking me about the question of individual differences.
Q. No. A. What are you asking them about. Q. Have you personally conducted a survey or super-
vised a survey where you took cases of children that had gdne through, negro children, that had gone through segregated schools and examined them in their adult life to determine whether or not the fact that they had gone to segregated schools had any bearing or relation to their success or achievement record.
A. I don't believe that I testified on that point, did It Q. I didn't say you did. I am asking you if you have
ever done such a thing.

A. I have not done such a thing. I am not sure that i t %
relevant at all to my testimony.
&. Well, is it possible that you could be in error in some
of your conclusions here? Could you be mistaken about some of them?
A. Every man can be mistaken; certainly I can. Q. You could be mistaken, couldn't you? A. Oh, yes. Q. Have you given this expert testimony around the
country in cases such as this? A. No, sir, never before; I teach it.
[fol. 2601 Q. Now, Doctor, the ideal state, if I understand your testimony, that you testified in your opinion to, would be where you had no segregation as far as educational process.
A. I don't think I said anything about the ideal state.
Q. Well, it would be better, in other words, is that right? A. I certainly believe that things would be better if we had no segregation, but that is not an expert opinion; that is my personal opinion. I didn't testify to that.
Q. Well, I mean restricting it to the educational process is what I meant.
A. Yes, without any doubt.
Q. Would you-would it change your opinion any if the facts present in this commnnity were that the child, the negro child, that we are dealing with, if he went to a white school he would be outnumbered ten to one or fifty to one.
A. Not at all. I have seen that happen. I have grown up in schools where that happened myself. I have seen it happen repeatedly. We have it in our own city.
Q. Don't you think there is a general tendency, forgetting the racial thing, for the majority to rule and operate the thing that they belong to.
A. I n what sense "majority"?
Q. WellA. Racial majority ?
[fol. 2611 Q. Assurnilig you had 500 white children going to Randolph School and ten negro children. What would be the natural tendency, taking into account the human element and human equations of whether the negro children

would run that school or participate actively in the student activities or whether it would be run by the white students?
A. Well, of course, the majority would generally have a preponderant voice if they divided along racial lines which they tend to do, but which they do not invariably do.
I have seen many cases where the colored child receives
in a mixed school from the majority group considerable amount of status and honor. You may recall just recently a man was elected captain of the football team in a predominantly white school. I think it was Williams or Am-
herst, I am not quite sure which, and this is reproduced
all the way through our school systems where we do have mixed schools.
Q. And there are some outstanding negroes in different fields of professions and-who have received their-part of their education-in the deep south in segregated schools.
A. That is true.
Q. And yet have achieved great places of importance,
isn 't that right ?
A. Education isn't the whole answer to ability; it is merely one factor. There are men who are big enough, [fol. 2621 white or black, to rise above unfavorable circumstances.
Q. Surely. You are familiar, of course, as a n educator, with the experience that was had back in the reconstruction days, sometimes referred to as the carpet-bagger days in the south.
A. Very definitely.
Q. You realize that a certain element, radical element I would call it, of the Republican party, perhaps to gain some political advantage, decided to go down in the various states and abolish certain segregation; you realize that was done.
A. Well, there wasn't exactly segregation at that time, but they did go down there and set up some laws of one sort or another, yes.
Q. Which attempted, in one swoop, to eliminate all of their custom and usages of those communities in the south, didn't it?

A. I am not here as an expert on history, but I read
history that way, yes. Q. Surely. Don't you realize that the experience of that
period was that they had a tremendous amount of trouble, tremendous amount of emotional outburst and that it caused ' a great deal of strife between the races and didn't work a t all. [fol. 2631 A. Well, if the Court wants a layman's opinion
on history, I will answer that question to the best of my knowledge as a layman on history; I ,arn not here as a
historian.
Judge Huxman: It seems to me the question is going far afield.
Mr. Goodell: That is all. Judge Huxman: Any further questions of the doctor1 If not, you may step down, doctor.
(Witness excused.)
WILBURB. B R O O K OhVav~ing been first duly sworn, assumed the stand and testified as follows:
Direct Examination.
By Mr. Greenberg:
Q. Mr. Brookover, will you please state your full name. A. Wilbur B. Brookover. Q. What is your occupation? A. I am a social psychologist by profession. The position I now hold is professor of social science, sociology, a t Michigan State College. Q. What degrees do you hold, Mr. Brookover7 A. I hold an A.B. Degree from Manchester College, a Master of Arts Degree and a Doctor of Philosophy Degree in sociology and psychology from the University of Wisconsin. $. Are you a member of any learned societies, Doctor? [fol. 2641 A. I am a member of the American Sociological Society, Society for Applied Anthropology, Society for the Psychological study of Social Issues, the High Valley

Elociological Society, Michigan Academy of Science, the American Association for the Advancement of Science.
Q. What is your field of special interest, Dr. Brookoverf A. I am particularly concerned in my teaching and research in the field of social psychology with particular reference to the human relations in the school society, or the school as a social institution and in relations between minority groups and majority groups in society. Q. Are you the author of any books or publications? A. I am the author of several articles on various topics concerned with social relations between teachers and pupils and other aspects of social factors in education. I am also the author of articles concerned with relation of these social factors to teaching-to pupil achievement. I have published articles on the impact of social stratafication on education, one that is in press a t the present time to appear in the Journal of Educational Theory. I am also the author of articles concerning social factors in relation to citizenship education, an article to appear in the 1951 yearbook of the National Council of Social Studies, now in press. I have in preparation a book to be published by the American Book company that will be entitled "The Sociology of [fol. 2651 Education." I am a joint author of a book now in preparation; it's a monograph which will report research which-committee of which I was chairman conducted on minority groups in Maple County, which is a midwestern community. Q. Other than what you have stated, have you devoted any special stbdy to the problem of the effect of racial segregation on the individual? A. Well, the monograph which I last mentioned grows ont of a rather extended project still in process on the analysis of minority group relations in midwestern society. I have inaugurated at the present time, designed a study to analyze the dynamics of prejudices among youth.
Mr. Goodell: I didn't get that.
The Witness: The dynamics of prejudices among youth in a midwestern school community.
Q. Now, Dr. Brookover, I am going to ask you a hypothetical question which I would like to have you answer

on the basis of your learning. Assume that in the City of Topeka there is maintained a racially segregated school system. Would you say that the negro child who attends the racially segregated school receives the same benefits as he would receive from attending a racial integrated school, if all other factors were equal?
A. No, I would not.
[fol. 2661 Q. On what do you base your opinion? A. Well, I would say, first of all, that I would want to
emphasize the nature of the educational process in this respect: Education is a process of teaching youth to behave in those ways that society thinks is essential. I n our
society it has long been held that this is a necessary func-
tion, to prepare democratic citizens. Now, the child acquires these essential behavior patterns in association with other people. In other words, they are not fixed; they are not inherent in the behavior of the child, but they are acquired in a social situation. Now, in order to acquire the types of behavior that any society may expect and to learn how to behave in various situations, the child must be provided an opportunity to interact with and understand what kinds of behavior are desired, expected, in all kinds of situations. This is achieved only if the child has presented to him clearly defined models.
Q. What do you mean by models, Professor @i A. Examples, illustrations of behavior; persons behaving in the ways that are-that the child is expected to behave and also consistent behavior of this sort. I n other words,
of an example, one kind of n model, and another time he is expected to behave if at one time he is presented one kind of an example, one kind of model, and another time he is [fol. 2671 presented another kind of a model, and there is a constant confusion. Now that, I think, leads us immediately to the situation with regard to segregated schools. I n American society we consistently present to the child a model of democratic equality of opportunity. We
teach him the principles of ecluality; we teach him what kind of ideals we have in American society and set this model of behavior before him and expect him to internalize,
to take on, this model, to believe it, to understand it. At
the same time, in a segregated school situation he is pre-

sented a contradictory or inharmonious model. He is presented a school situation in which it is obvious that he is a subordinate, inferior kind of a citizen. He is not presented a model of equality and equal opportunity and basis of operating in terms of his own individual rights and p r i v i ~ leges. Now, this conflict of models always creates confusion, insecurity, and difficulty for the child who can not internalize a clearly defined and clearly accepted definition of his role, so he is faced with situations which he doesn'the has two or three, at least two in this situation, definitions of how he is expected to behave. . This frustration that results may result in a delinquent behavior or otherwise criminal or socially abnormal behavior. Now the negro child is constantly presented with this dual definition of his role as a citizen and the segregated schools perpet[fol. 2681 uates thi.s conflict in expectancies, condemns the negro child to an ineffective role as a citizen and member of society.
$. Dr. Brookover, this opinion and the reasons you have just given, are they supported by scientific authority?
A. Yes, there is extensive work been done by psychologists, social psychologists, on the whole theory of roletaking and the question of eternization of patterns of expectancy, such people as George Herbert Meade, Charles Horton Cooley and numerous other people have done extensive work, extensive research in the processes of personality development and learning a situation through social interaction.
Mr. Greenberg: That is all.
Cross-examination.
By Mr. Goodell:
Q. Doctor, I will just ask you one question: Have you ever heard of these people,, all negroes: Mary McLeod Bethune of Sumter, South Carolina, who is president of the college there, Bethune-Cookman College, Daytona Beach, Florida.
A. I have heard of someone by the name of Bethune. I ,am not sure that I know.

Q. Richard Wright, Greenwood, Mississippi and Jackson, Mississippi, author of Native Son, negro.
A. I have. [fol. 2691 Q. Charles Johnson of Bristol, Virginia.
A. Charles Johnson, that I know. Q. Sociologist and president of Fisk University. A. I think that is in Tennessee. Q. Perhaps so. Walter White, of Atlanta, Georgia, Executive Secretary of National Association for the Advancement of Colored People. A. I have heard of him; don't know him. Q. George Washington Carver, Neosho, Missouri, residence. A. I have heard of him. Q. Langston Hughes, poet and author; I believe from Kansas. A. I have heard of him; don't know him. Q. W. E. B. DuBois who was an author, I b'elieve connected with Fisk University at Nashville. A. I know a DuBois who is an anthropologist. I don't know if this is the one. Q. Mardecai Johnson, Paris, Tennessee, president of Howard University, Washington, D. C., negro university. A. I know the name; I don't know him a t all. Q. William Grant Still, a composer of Little Rock, Ar-
kansas. A. Don't know him. Q. Negro. A. Philip Randolph, Florida, president of the
Sleeping-strike that. Charles Wesley of Baltimore, Maryland, president of the university in Ohio; I don't have the town. [fol. 2701 A. I don't know him.
Q. Frederick Patterson, president of Tuskegee Institute, Washington, D. C.
A. I don't know him.
Q. Some of these men you know. Assuming they were
all educated-got their preliminary education in segregated schools, a large part of them in the south, would you-did
you consider that in arriving a t your opinion here? A. Certainly did. The fact that occasionally a peraon is
able to overcome, through various readjustments and other

experiences, the conflict of roles, the conflict of models, does
not disturb the generalization which I make, in the least.
Certainly there are individual cases which either through psychotherapy or other experiences, the individual' is able to overcome such difficulties. But this is not the general case a t all.
Q. Well, there are many illustrations of emotional stress and strain among the white children who go to school and don't get-get sort of left out, don't make the football team or the basketball team or don't get invited to the parties, isn't that right?
A. Sure, there are differences in ability to adjust and there are emotional disturbances. The differences which you cite are not enforced differences. They are not inevitable in terms of the situation in which they come-in which [fol. 2711 they operate. The child is not by fiat or legalization required to have presented to him this conflict.
Q. That is your opinion about what the law ought to be,
in other words, is that it? A. I would say on the basis of my testimony that the
segregation of schools presents a conflicting set of models inevitably.
Q. This opinion you have given here is largely your own personal view based upon your study.
A. No, I wouldn't say it's my own personal view at all. I would say it's the result of a tremendous amount of research and evidence.
Q. I said study. A. That is accumulated by social psychologists over a period of years and as I have studied and analyzed this research, I would come to this conclusion. Q. You think you could be wrong? A. Of course any scientist always presents the possibility
or recognizes the possibility that new evidence and new research may modify to some extent the conclusions of a particular time.
Mr. Goodell: That is all.
(Witness exoused.)

[fol. 2721 LOUISAHOLT,having been first duly sworn, assumed the stand and testified as follows:
Direct examination.
By Mr. Carter:
Q. Mrs. Holt, what is you occupation? A. I am a social psychologist. Q. Would you indicate to the Court what your educational background is. A. I received the Bachelor's Degree, Master's Degree and Ph.D. all from Radclifle College, which is the feminine adjunct of Harvard University. This was in the field of sociology in the Department of Social Relations there, which includes cultural anthropology, clinical psychology, social psychology, as well as sociology. Q. Mrs. Holt, would you also describe your various job experiences. A. Well, I started under an arrangement which gave me a kind of internship in public administration where I worked in the Federal Bureau of Prisons. Q. Where was this7 A. For six months in Alderson, West Virginia; for about nine months in Washington. Following that, I had a year of graduate study concurrent with work in a settlement house in Boston, South End House, and then was appointed an instructor in sociology at Skidmore College and also [fol. 2731 director of a college community center in Saratoga Springs. I was then returned to Radcliffe College where I was appointed a teaching fellow and tutor in sociology. Concurrently with that, I held a Sigmund Freud Memorial Pellowship a t the Boston Psychoanalytic Institute in 1944and 1945. Following these other jobs, I participated in some research work for the Family Society of Boston in connection with their vocational counseling service. I was then an educational counselor for the National Institute of Public Affairs in Washington. From 1947 to 1949 I held a part-time appointment in the Menninger Foundation School of Psychiatry and for part of tliat time in their school of clinical psychology affiliated with the University of Kansas.

Q. That is located in this city. A. What's that d A. Is that in Topeka? A. Yes. I n the interim, there was a post-doctorate research
fellowship of the National Institute of Mental Health. This past year I have been on the faculty of the University of Kansas in the Psychology Department, teaching courses in social psychology and personality and some of their inter-relations. At the same time I also prepared a long paper for a United States Public Health Service ,project in connection with the Mid-Century Whitehouse Conference [fol. 2741 on Children and Youth dealing with the problems, the methodology of evaluating mental health programs.
Q. What is your major field of interests, Mrs. Holt? A. It's probably clear that I am interested in the relations between social process and social conditions and personality functioning behavior. Q. Are you a member of any professional societies? A. The American Sociological Society, the Society for Applied Anthropology, Society for the Psychological Study of Social Issues, the American Society for Group Paychotherapy and Psychodrama, and I am an associate member of the Topeka Psychoanalytic Society. Q. Mrs. Holt, are you at all familiar with the school system in Topeka? A. Yes; I have one child who entered that system this last year and another who enters next September. Q. You are then aware of the fact that the schools are operated on a segregated basis. A. I am. Q. Based upon your experience and your knowledge, tak-
ing the segregated factor alone in the school system in Topeka,' in your opinion does enforced legal separation have any adverse effect upon the personality development
of the negro child?
I [fol. 2751 A. The fact that it is enforced, that it is legal,
I think, as more importance than the mere fact of segregation b itself does because this gives legal and official sanction to a policy which inevitably is interpreted both by white people and by negroes as denoting the inferiority of the neqro group. Were it not for the sense that one group

is inferior to the other, there would be no basis, and I a m
not granting that this is a rational basis, for such segregation.
Q. Well, does this interference have any effect, in your opinion, on the learning process 7
A. A sense of inferiority must always affect one's motivation for learning since it affects the feeling one has of one's self as a person, as a personality or a self or an ego identity, as Eric Erickson has recently expressed it. That sense of ego identity is built up on the basis of attitudes
that are expressed toward a person by others who are important. First the parents and then teachers, other people in the community, whether they are older or one's
own peers. It is other peoples reactions to one's self which
most basically affects the conception of one's self that one has. If these attitudes that are reflected back and then internalized or projected, are unfavorable ones, then one develops a sense of one's self as an inferior being. That may not be deleterious necessarily from the standpoint of
[fol. 2761 educational motivation. I believe in some cases
it can lead to stronger motivation to achieve well in academic pursuits, to strive to disprove to the world that one is inferior since thc world feels that one is inferior. I n other cases, of course, the reaction may be the opposite and apath$tic acceptance, fatalistic submission to the feeling others havc expressed that one is inferior and therefore any etorts to prove otherwise would be doomed to failure.
Q. Now these difficulties that you have described, whether they dive a feeling of inferiority which you were motivated to attempt to disprove to the world by doing more or whether they give you a feeling of inferiority and therefore cause you to do less, would you say that the difficulties which segregation causes in the public school system interfere with a well-development of a well-rounded personality ?
A. I think the maximum or maximal development of any personality can only be based on the potentialities which that individual himself possesses. Of course they are
affected for good or ill by the attitudes, opinions, feelings,
which are expressed by others and which may be fofisilized into laws. On the other hand, these can be overcome in

exceptional cases. The instances I cited of those whoso
motivation to succeed in academic competition is heightened [fol. 2771 may very well not be fulfilling their own most basic, most appropriate potentialities but seeking, rather, to tilt against windmills, to disprove something which there was no valid reason, in my opinion, to think was so anyhow, namely, the feeling of their inferiority. So even when educational success is achieved that still may not denote
the most self-realization of the person. I feel, if I may add another word, I feel that when segregation exists, it's
not something-although it may seem to be such-that is
directed against people for what they are. It is directed
against them on the basis of who their parents are, since that is the definition which, according to sociologists and social psychologists analysis of the matter, that is used in
determining who shall go to a segregated school, a negro school or a white school; it is not simply skin color. I n the case of Walter White, for example, and sociologist Allison Davis, his brother, John Davis, who are negroes, their ,skin color is lighter than mine; of course, I have been out in the sun-the definition does depend upon who a person's parents were. That appears also if a dark-skinned person had parents who were high potentates in India he is not defined as a negro; therefore he is not required to use segre-
gated facilities. It is not the skin color; it is who the
parents were, and my understanding and various sociolo[fol. 2781 gists and psychologists analysis of the American tradition, religious tradition as well as set of values and ethos, determining much of our most valued and significant behavior, hinges upon a belief in treating people upon their own merits and we are inclined to oppose a view which states that we should respect people or reject them on the basis of who their parents were.
Q. Now, Mrs. Holt, you are aware -of the fact that segregation is practiced in Topeka only for the first six grades. Thereafter, the child goes to high school and junior high school apparently without regard to race or color. You have described difficulties and interferences with the personality development which occurs by virtue of segregation at the first six grades. I s the integration of the child at the

junior high school level, does that correct these difficulties which you have just spoken of, in your opinion7
A. I think it's a theory that would be accepted by virtually all students of personality development that the earlier a significant event occurs in the life of an individual the more lasting, the more far-reaching and deeper the effects of that incident, that trauma, will be; the more-the earlier an event occurs, the more difficult it is later on to eradicate those effects.
[fol. 2791 Q. Your opinion would be that it would be more difficult to eradicate those effects at the junior high school level, is that i t ; merely because you integrate them a t the junior high school level-
A. Well, once a trauma has occurred, and I do believe that attending a. segregated school, perhaps after the preschool years of free play with others of different skin color, is a trauma to the negro child; that occurs early. There is also evidence emerging from a study now going on a t Harvard University that the later achievement of individuals in their adult occupational careers can be predicted a t the first grade. If that is true, it means that the important effects of schooling ill relation to later achievement are set down a t that early age, and I therefore don't think that simply removing segregation a t a somewhat later grade could possibly undue those effects.
Cross-examination :
By Mr. Goodell :
Q. You mean, Mrs. Holt, there is a serious study being made now to project in the future whether a child in the first grade is going to be a flop or a successO
A. I do. Q. You have confidence in that, do you7 A. That study is being directed by Professor Tawkett [fol. 2801 Parsons, the head of the Department of Social Relations.
Q. You have a good deal of confidence in that 7 A. I certainly do,
Q. You made a comment in your testimony I would like

to call your attention to again; this segregation in some cases would spur, act as a whiplash, on the child to spur him on and make him achieve, and that would be a bad thing.
A. Yes. Q. You mean it's a bad thing, for example, for a poor boy, because he is poor, the whiplash of poverty makes him work harder to rise higher; that is a bad thing? A. I mean that that can be at the expense of healthy 13ersonality development, self-actualization, self-realization of the most basic fundamental and appropriate kind
for that peqson, and we have plenty of evidence of people who burn themselves out with various emotional or perhaps psychosomatic diseases in whose cases that can be attributed to this overweening striving for competitive success to overcome feelings of inferiority.
Q. Mrs. Holt, more or less educational process has in it
competitive features, that is, the children are given tests and examin:a.tionsand gradecards and the ones that don't make good grades, they get poor grades; a t least the teacher gives them their merit grade, You don't believe [fol. 2811 in that, do you?
A. I believe in the children being appraised on the basis of their own objective achievement.
Q. You don't believe, then, in any sort of competition in the public school system, do you?
A. I believe competition has its values. IQ. Do you believe in that in the way it's ca.rried on and have competitive examinations and gradecarding and things of that kind? A. I don't know how else one can operate a society in which individuals are judged primarily on their own merits rather than through connectioiis of who their parents were or who they know which are the alternatives to that: syst em. Q. Progressive education, that is one of the elements that they bklieve which has been set up in California and other area4, to abolish all grading, abolish all examinations, let e3ery child go to school and.never have to worry about wha$ his grades are; never know what they are, isn't that rjghtf

A. 5 think a child needs some definiteness in the expecta-
tions bhich the authorities over him, the teachers, have in ord~erto stimulate him to his own maximal productiveness. I think also competition with his peers, if not carried to exc/essive limits, if not if mot undue emphasis is placed
0 on it, an also have very beneficial effects.
[fol, 823 Q. These are your personal views you have
% been iving here largely. A. hey are based on a fair amount of acquaintance with skientifie work in this field.
Mr. Goodell : That is all. If the Court please, a t the outset the Court mentioned-
I don~'t..care to be objecting about it, but the Court, I
thought, suggested a limit on this line of testimony.
Judge Mellott: That is about nine now that we have had or$ this phase. How many more are there?
M r . Greenberg : Pardon me, sir, I didn 't hear you.
dJ u ge Mellott: You have had several now of the so-
called expert testimony; how many will there be9 Mr.Greenberg: We have three or four more, Your Honor,
and they are all different.
Judge Huxman: Well, now, we are not disposed to be criticdl, but it's my opinion from having listened to this testiqony, the last four witnesses-that it's all cumulative.
1 can see no difference, substantial difference, between any
of thd testirnony of the last three or four witnesses. It's fiftee$ minutes until adjournment time. We are going to have to adjourn this evening a t 4:30 on account of a com[fol. p83] mitment I have. We can, perhaps, finish one more witness in that time. Then I suggest that you gentlemen tonight really appraise your witnesses and appraise this d~idence,see whether my statement is warranted that this elvidence we are now receiving is all substantially the same and, unless there is more difference in the testimony that $ou have, we might well have the qualifications of the remaking witnesses read into the record and have a stipulatioq that their testimony as to the effect of segregation itself upon the mental attitude upon the outlook and life of th/?student is substantially as testified to by these witnesse~s. I am just simply suggesting that, saying not'that

we will enforce that rule in the morning, but it was understood that about five witnesses would be allowed, and then we would examine the subject, and we are reaching that point, so suppose you call your next witness ;that will take us to adjournment time.

JOHJN. KANEh, aving been first duly sworn, assumed the stand and testified as follows:

Direct examination.

By Mr. Greenberg:

Q. What is your full name?

A. John J. Kane.

[fol. 2841 Q. What is your occupation!

A. I am an instructor in Sociology at the University of

Notre Dame.

Q. What is your educational background?

A. I have a Bachelor of Arts Degree from St. Joseph's

College, a Master of Arts Degree in sociology from Tem-

ple University, a Doctor of Philosophy Degree in Soci-

ology from the University of Pennsylvania.

Q. What positions have you held!

A. I was an instructor in sociology a t St. Joseph's Col-

lege about two and a half or three years. I have been in-

structor in Sociology at the University of Wotre Dame for

three years.

Q. Have you devoted yourself for any of your profes-

sional attention to the field of the impact of racial segre-

gation on the individual?

A. I have done two studies in the general field of preju-

dices, racial-my major interest in the graduate school

was in tlie field of race relalions and ethnic relations.
&. Mr. Icane, on the basis of your educational experience

and your pothetical

f'qtuudeisetsi,onI:

want you Assume

to answer the following hythat in the City of Topeka

there is maintained a racially segregated school system

1negro child is compelled to attend a racially
asengdretghate school because of his race alone; that if this [fol. 2851 system did not exist, he would attend a racially

A. 1mean the opportunity of advancing in the world,
moving ahead, hdving a better job than your father had, more social position, and I would point out to you that this concept is fundamental to the American system of values. This is one of the things that we Americans believe in very intensively, and it is something which is denied to negro children. Furthermore, the philosophy of racial segrega[fol. 2871 gation is supported by rationalizations on the racial myth of inferiority for which we have no adequate scieritific evidence. Secondly, segregation cuts down on the communication among people. It erects a barrier. Now, certain barriers will exist whether you have a segregation cnforced by law or not, but here's a case where barriers are
created and upheld by law. The total effect is to make most of your negro children feel inferior, and I would like to refer to a study that was made by Preston with regard to projected scores on tests. A number of white boys were asked to put down the score they expected to get on a certain test and, when they put down the score, they were told
that negro youths had made a higher score. The white boys were allowed to change, and they immediately changed their scores above the negro score. Negro youths were told they were about to talce a test and were aslced to put down the expected score and, when they put it down, they were told this was higher than the white boys made, and they were asked if they wanted to change it, and they lowered their scores below that of the white group. This is indicative of the expectation of behavior which is engendered in a segregated school among most of your colored students.
'Q. Dr. Kane, you mentioned a study that you made. A. Well-
[fol. 2881 Q. -in this field. Could you tell us whether or not that study supports the conclusion which you just
stated and describe the study. A. I studied groups of negro boys, gangs, in West Phila-
delphia. I thinlr it could be used. Q. Will you describe what you did in this study. A. We discovered in this particular area there was a
system of social stratafication among negroes. The area

was roughly split into two sections, one in which the negroes called the "Tops" and the other which they called the "Bottoms." I n the "Tops" you had a high degree of homeownership, negro males there, the fathers had better occupations, larger income and a fairly stable family. The "Bottoms" area you never had any area in which as many a s 6% of the negroes owned their homes. You had a relatively unstable family; for the most part they were employed in menial jobs. Now you would think that the "Bottoms" area, as a group, represented the lowest level of negro society, but these negroes themselves made a distinction, and they would point out that there was still a lower group than this, and that was the negro from the south and, if you asked them, they said because of segregated education. Now, I want to point out, whether or not that was true, is quite beside the point because, as W. I. Thomas indicated long ago, if men define situations as [fol. 2891 real, they are real in their consequences and this is the attitude the negro group itself held, and, of course, this is the way we form attitudes about ourselves; not only what we think, but what we know or believe other people think about- us. So, here again, you have an indication of the inferiority that was engendered because of the segregated school system amongst the immigrants from the south.
Mr. Qreenberg: That is all.
Cross-examination.
By Mr. Qoodell:
Q. Professor, don't you believe a home which has the child, say the first five years without any-where the school doesn't have him at all, in any case whether he is negro or white, don't you thinlr the child has a great deal to do with attitudes, it's race and towards another race and acceptance, and so forth.
A. You are perfectly correct. As a matter of fact, the home is much more important than the school, if 'it's an adequate home. Now, I should like to point out, if I may-
Q. That answers my question.

Judge Haxman: You inky go ahead and give your ex-
planation. This is an expert witness. The Witness: I should like to point out that when the
home facilities are inadequate, as they are in so many [fol. 2901 cases of your poor negro family, then the school becomes increasingly important and, in those cases probably, more important than the home since it is exercising .. little influence.
Mr. Goodell: I have no further questions. Judge Huxman: It is now five minutes of adjournment time, and we perhaps could not finish another witness, and 'I just have an appointment I must keep. So we will suspend a t this time. The court will be in recess until tomorrow morning promptly a t 9 :30.
(The court then, a t 4:25 o'clock p. m., adjourned until 9 :30 o'cloclc a. m., the following day, Tuesday, June 26, 1951.)

rf01. 2911

Tuesday, June 26, 1951

(Pursuant to adjournment as aforesaid, the court met, present and presiding as before, and the following proceedings were had :)

Judge Huxman : You may proceed, gentlemen. Let me inquire of the attorney for plaintiff, how many more of these expert witnesses do you have? Mr. Carter: Your Honor, we a t the present time-we only have one more expert witness to put on. Judge Huxman: Just one more expert witness. Do you have any testimony after that or will that conclude your case? Mr. Carter: We have subpoenaed a number of witnesses, Your Honor, and we are contemplating calling only one other witness to establish one point. Judge Huxman: All right, you may put on this other witness, expert witness.

BETTIBBELK,having been first duly sworn, assumed the stand and testified as follows:
Direct examination.
By Mr. Carter :
Q. Miss Belk, what is your occupation? A. At the present time I am on the staff of the Workshop in Human Relations at the University of Kansas City, Missouri. [fol. 2921 Q. What is your educational background? A. I have my Bachelor's Degree from State Teachers College in Worcester, Massachusetts, my Master's Degree from Clark University in Worcester, Massachusetts, and, at the present time, I am working on my Ph.D. in Human Development a t the University of Chicago. Q. Miss Bellr, what other than your present employment at the University of Kansas City-what other job experience have you had? A. I have taught junior and senior high school in Indiana for two years; for ten years I was employed by the Y. W. C. A., first as director of the teen age program in Trenton, New Jersey, and for five years as a member of the national staff as a consultant on the teen age program. I n that capacity I did work in the midwest; Kansas was one of the twelve states in the area that I served, and I have worked with the local organization here on their problems of teen age program. At the university I have been employed as a research assistant in the study of developmental tasks of adolescents and, during the past year, I have been on the staff of the Center for Inter-Group Education. Q. Have you published any boolrs or articles on the problems of adolescents? A. Yes, for the Y. W. C. A. I published several articles on teen age problems and a pamphlet designed for train[fol. 2931 ing adult leaders to work with teen agers. Q. Do you belong to any professional societies? A. Yes. I am a member of the National Association of Group Workers. $. What is your field of major interests?

A. Well, my recent experience has been in training adults to work with groups, and I am particularly interested in this aspect of human development. My work a t the present
time is in the training of adult leadership for this kind of job.
Q. That is the training of an adult-of adults to work with adolescents and so forth9
A. Yes,
I&. NOW,assume, Miss Belk, that the City of Topeka has
organized its public school system so that a child enters the first grade a t approximately the age of six; goes through the elementary schools, six grades ; he would be entering a junior high school a t approximately the age of twelve. Assume that for the first six grades the schools in Topeka are maintained on a segregated basis. Thereafter, the junior high schools and high schools, the schools are integrated. Based upon your experience and your knowledge, would you
give an opinion as to whether or not it would be harmful-it
would have any adverse effect on the child a t that stage of his development to move from a segregated educational [fol. 2941 pattern into an integrated pattern?
A. I would say that by bringing children together for the first time a t this age, the Board of Education is working a real hardship on both the negro and white children, and I would like to explain why, if I may.
Q. Please do so. A. I think that i t is a well established fact that the years just preceding age 12, the years 10 to 12, roughly, for girls and 11to 13 for boys, are the years during which the important physical and physiological changes take place. The child a t age 12 is trying to integrate two to five inches of standing height that he had acquired very rapidly. He is also trying to integrate very important physiological changes. I n our society, girls reach puberty at about twelve and a half and boys a t about thirteen and a half, and they are adjusting to really a new kind of body for them because of the changes which have taken place. There are social changes that take place also a t this age ;changes take place within the school system itself. Up until this point the child has been accustomed to a school situation in which he has related to one adult. Now he moves into what we

call a departmentalized pattern. He has several teachers ; he moves from one classroom to another. I n other words, he has a pattern of relationship with many important adults in the school system. Also, a t this age the child moves [fol. 2951 from a peer society which has been largely made up of members of the same sex, into a heterosexual society. The seventh grade is a crucial one for girls, particularly, because they become interested in boys before boys become interested in them, and this is a very difficult time for them to live through. All in all, these are the years when children are making some of their most important life adjustments, and I would say that having been brought up in a separate system where they can only learn that negroes and white are different, they must a t this age tNen make an adjustment to living with someone that they have learned is different, and I think that this puts an additional adjustment on them a t an age when it is very difficult for them to make it.
By Mr. Goodell:
Q. I s it Miss or Mrs. Belkl A. It's Miss Belk. Q. Are you familiar with the City of Topeka and the customs and usages with respect to inter-racial matters? A. I have visited the City of Topeka as a consultant for the Y, W. C. A., yes. Q. Do you realize that for half a century, to some degree, there has been segregation practiced in the business world and in the social strata of this community? A. f believe that I have heard that there is segregation in [fol. 9961 in the community, yes. Q. Without regard to the merits, if that is a fact, assumiqg-strike that-that there is segregation practiced in the ordinary workday life of the community in the business world and in the social strata as of our two races here, negro and the white, and assuming further for the purpose of this question that there were no segregation in the first six gIiades of our public school system, and the negro children kere absorbed in the present existing white schools,

where they were outnumbered twenty-five to fifty to one and, in some cases, more than that, would you reform your opinion any, taking that into account?
A. No, I would not.
Q. Do you know what the natural tendencies are in a practical world? Would i t be customary, where children come from homes-living in a community where segregation is practiced other than in the schools, for those same white clbildren to carry on that same custom and usage in their relations with the race-with the opposite race-the negro.
A. I don't understand your question.
Q. Well, assuming that segregation, as I have just stated, as practiced in this community in Topeka, in the city, outside of the school, and that is a fact, children coming from homes ip this community, isn't it very natural that they [fol. 2971 would simply carry on that custom and usage in their relations with other negro students of the opposite race '?
A. Well, I think our recent studies have shown that
children, adolescents particularly, take most of their social pattern from their peers rather than their parents; in fact, it'a one of the real problems in our American society today that this is true.
Q. Who are the children, what do you mean by that, that the negro children they would look upon as their peers and therefore they would follow them; what do you mean ?
A. I mean that all adolescent children take most of their
social patterns from people their own age; they tend to see each other as authorities. I t l s an age a t which they break away completely from parental authority, in fact to the extent that it becomes a difficult problem in homelife, so iit is not always the patterns of the parents that they are repbating; in fact, during this time they are forming their own values.
Q. I don't know a s I understand it. You consider another
child, that a child will look upon another white child as his peer, is that what you are getting a t ?
A. Yes.

Q. What is there about another child of the same age that ~ o u l dmake him a peel' as to another child?
A. $his is one of the phenomena of development. The
child must, in his growing up process, ultimately break [fol. ?98] away from the home. Now adolescents in our
are treated a t one moment as though they were and-the parents are very authoritarian with them and a t another moment they are expected to behave like adults and, consequently, most of them are in some state of codfusion as to what their status really is. But they
are moving always toward adulthood, toward establishing their own values and, for this reason, they take more of their pattern-you can see it even in their dress. I don't know if you have any adolescent children of your own, but if yoy do you know they dress alike, they act alike, they talk abke. They get their values largely from each other a t this age.
Q. Assuming for the purpose of this question, though, that $egregation was abolished and the negro child was absorbed in the white school system and, for illustration, he was dutnumbered in the particular school system on the average of thirty to one or twenty to one or any figure of that groportion; taking into account the natural factors of
every-day life and the practicabilities of the situation, wouldn't that result in and of itself of him being a very small minority group and being left out of activities and the rpn of things, the negro child.
A. I do not think that that is necessarily true. In fact, in my own experience I have seen it not to be true. [fol. 2991 Q. Well, isn't that true within the white strncture, that some children run things and others tag along; some are leaders and others aren't 8
A. This is an individual matter. It is quite true. Q. And to that extent where yon have children that do
run things, elected class officers and in all activities, make the teams and so forth, and in their own group, and in the other children that doesn't-aren't given recognition in that sense, that child-this philosophy of yours, this theory of yours, is made to feel second-class and left out of things, isn't that right, of his own group.
A. Of his own group, yes, and most of us who work in

inter-group relations nowadays see this as a total thing. There is no longer any stress on negro-white relations; it's on inter-group relations.
Q. I mean without regard to the racial factor, you have
that situlation in any organized society, don't you; some
people gGt along better than others, run things, are leaders; others tagging along and are not leaders.
A. Thjs is true and our problem is to work so that everybody has a niche into which he fits.
Q. Holk would you eliminate that aspect of life in a
school system where some children are not the leaders and don't run the show and are sort of left out, so they don't haye an inferiority feeling that they are second[fol. 3001 class? How would you get rid of that?
A. As a matter of fact we have been doing some work on that at the center for inter-group education. Our work deals witb schools. Well, for example, in one school children said you are separated here according to whether or not you belong to the cashmere sweater set, so this became the problbm that we worked on. The way that we usually do it is sitting down with young people themselves and talking about why people do exclude other people and why this is important to them and what are the values in learning to live with people who are different from you and being ablp to accept them.
Q. Well, without regard to your-adoption of your theories qnd your opinion here in the school system, you are still 4oing to have that problem considering the practicalities of the situation.
A. The! problem of rejection and acceptance is one that will be with all of us all through life.
Q. Surely. Isn't it awfully difficult for you to have the experiende of a negro child so that you could expertly say what he feels, a first grader and a third grader, and so forth, ho* he feels about anything.
A. I s id difficult for me 7
Q. Certainly, to put your mind-I mean to-for you to assume the feelings of a negro child that is in these elemen[f01. 3011 tary grades% How do you do that t
A. It iq difficult for me really to understand the experi-
ences of anyone else, but this is part of my job.

Q. Well, I grant all that, but how do you do it; how can you tell what I feel and react and my reactions, and so forth, to a set of facts or my social relations.
A. How do I actually do it?
Q. ' How do you tell it, yes.
A. Well, I try to put myself in the other person's place. Q. Well, I know that, but I mean is it like a mathematical problem that we have got in algebra so that you can add it u p and prove it. A. We do have techniques for doing this sort of thing and the technique is known as role-playing, and I would be glad to ddscribe it to you. Q. If some of your assumptions are wrong, then your whol'e conclusions you reach are wrong too, aren't they; isn 't that right ? That's all. A. Well-
(Witness excused.)
M?. Carter: We were going to call our next witness, Mrs. Dorothy Crawford, but I don't believe she is here, and so we will rest.
JuPge Huxman: You will rest. My. Carter: Yes, sir. [fol. 3021 Judge Huxman :Plaintiff rests. M$. Cfoodell: If the Court please, I would like to be given abou~ten minutes. There were some members of the school system I couldn't reach last night and, because you started at 9:$0, I couldn't get hold of them in time. I won't take over ten minutes. Judge Huxman: That was too early for the school members to be out? Mlt. Goodell: No, I couldn't get in touch with them. ~ u b H~uxeman: You want a ten-minute recess ? My. Goodell: If it isn't imposing, yes. Judge Huxman: Court will be in recess.
(The court then, at 9:45 o'clock a. m., stood at recess until 9:55 o'clock a. m., at which time the following proceedings were had :)
My. Goodell: Does the Court want all my witnesses sworn at ode time @4

Judge Huxman: We will follow the same procedure. Mr. John Scott: If the Court please, we have a witness that juSt arrived, and we would like to put her on; just a short witness. Judge Huxman: All right. Mr. John Scott: And we would also like to invoke Rule [fol. 30b] 43(b), that is, on hostile witnesses. This w i t n e s ~ will teskify pertaining to transportation, and she also has a finanpial interest in it and, therefore, we would like to invoke lthat rule.
S Mr. oodell :Who is the witness t
Mr. ohn Scott: Mrs. Dorothy Crawford. Judge Huxman: The hostile witness rule is rather a flexible rule, and i t depends upon whether the witness shows any ho$tility, so suppose you proceed in the regular way of examination, and we will then be guided by what follows. Mr. John Scott: All right.

D O R O ~ HCYRAWFORDha,ving been first duly sworn, assumed the stand and testified as follows:

Direct Examination.

By Mr. John Scott:

Q. Sqate your name to the Court, please.

,A. N4h-s. Dorothy Crawford.

Q. Where do you live t

A. 835 Clay.

Q. Hlere in the City of Topeka7

A. Tbpeka.

Q. Dbfendants' Exhibit "B"(1) that has been admitted

into evldence indicates that you are engaged in the pro-

1 [fol. 3 41 fession of teaching, is that correct? A. T at's right.

Q. A.

Abbadt'ysoruigahlts.o

teach

at

Buchanan

School.

Q. Apd you also teach the first and part of the second

grade, is that right?

A. That's right:

Q. Ayd also Defendants' Exhibit "D" states that you receive $272.19 for transportation, is that correct?
A. I don't remember the exact amount.
&. I ?ant you to explain to the Court, if anybody, that
you tralsport, what persons and of what grades that you transpokt.
Mr. Goodell: We object to that as incompetent, irrelevant and immaterial; don't see the purpose of it.
Judge Hill: What is the purpose of it? Mr. John Scott: The purpose of this testimony is to show that she transports kindergarten children and she dismisses her grade for the purpose of transporting children, arid those children are sent to another classroom during the time that she is conveying these children. Judge Huxman: You may answer.
(The l a s t preceding question was here read by the re[fol. 3061 porter.)
By Mr. John Scott:
Q. -if any. A. I do tra~isporkt indergarten children after dismissing the first grade a t 11:30 and the second grade a t 11:45.
Q . Now, when you dismiss your class a t 11:30, where does-\@here do the second-grade children go7
A. I stay in the building and teach the second-grade children u ~ t i 1l 1:45. I do not dismiss the second grade until 11:45.
Q. NOW,Mrs. Crawford, you say you transport the children a t 11:30, is that correct?
A. NO, I did not say that. I said that I transport the children after dismissing the first grade a t 11:30 and the second grade a t 11:45. I do not leave the building until after I dismiss the second grade a t 11:45.
Q. Isp't it a matter of fact that you take the kindergarten children home a t 11:30, and you send the secondgrade class into another classroom?
A. No, I do not.
I&. During the time that you have undertaken these duties

of transporting the kindergarten children, haven't you done that f
A. I have not.
Judgd Mellott : Didn't your witness testify it was 11:45 that thig transportation began? rfol. 3061 Mr. John Scott :No, 11:30.
Judg&Mellott : I don't agree. Mr. John Scott: I think the testimony yesterday indi-
cated i t was 11:30. Judge Mellott: No, the testimony yesterday was as she
has given, after the dismissal of the second class a t 11:45 that she transported the children.
Mr. John Scott: I don't think the record shows that, Your yonor.
Judgd Mellott: I think it does, but you may proceed.
By Mr. John Scott:
Q. Well, during the year of 1950 and '51 can you state to the Court the approximate number of children that you transported, that is, each day.
A. The number varied according to the attendance, daily attendance, and also according to the transfer of children from orle district to another and according to some children going out of town and some coming in town and also some parents on some days elected to come for their childreu; so it's hard to tell the exact number each day.
Q. Well, use your best judgment, Mrs. Crawford.
Judge Huxman : What's the purpose of this? What are you trying-
Mr. John Scott :It's to ascertain the number of children she traqsports daily, and I am going to ask her the type [fol. 30?] of vehicle she is driving, Your Honor.
Mr. Goodell: If the Court please, this isn't an accounting procedure. Do they claim she's overpaid or what is i t ?
Mr. John Scott: We are not claiming anything such. Judgd Huxman: You a r e trying to establish the buses are overcrowded, is that it? Mr. John Scott: Trying to establish the number of children she's transporting daily and the type of vehicle.

Judgte Huxman: What is the purpose of that when you establi$h it7
Mr. Sohn Scott: The fact that these children are transported under crowded conditions.
Judgte Huxman : Well-
By Mr. John Scott:
Q. What type of vehicle do you drive, Mrs. Crawfordt A. I drive a Ford two-door. Q, What model?
A. A two-door. Q. Well, I mean-
Mr. Goodell: Year model he means.
By Mr. John Scott:
Q. P e a r model. A. 1838. [fol. 3081 Q. J u s t give your best judgment the number of children that you take in that car each day; is it six,
ine, ten or twelve7 eigAh.t,$ ell, I take no more than five a t a time. When there are mdre than five children I make two trips.
Q. x o u make two trips. A. yes. Q. I see. Do you have any special coverage for liability of these children that you carry7
Mr. Qoodell: Now, we submit, if the Court please, we object t o that as incompetent, irrelevant and immaterial, has n o probative force in this case.
$ J u d e Huxman: The objection will be sustained. I t is
collate a1 and can't go to any due process, has no bearing on this matter.
Mr. Fohn Scott: I believe that is all.
Cross-examination.
By Mr. Goodell:
Q. Are you neglecting your teaching job by hauling some kids wholly during the noon hourt
A. 1am not.

Mr. Goodell :That is all. Judge Huxman : Are you through now % Plaintiff rests ?
1 Mr. C rter : Yes.
[fol. 30 1 Judge Huxman: You may proceed with the
defense.
CLARENCEG. GRIMESh,aving been first duly sworn, as-
sumed the stand and testified as follows:
Direct examination.
By Mr. Goodell :
Q. St$te your name for the record and for the Court. A. Clarence G . Grimes. $. Yo,uare commonly known around town here as "Cap" Grimes. A. That's right. Q. WQreyou an officer in World War 1% A. I was. Q. I-Iqve you had for many years the contract with the Topelra Board of Education for the transporting of pupils to the qegro schoolst A. Tkiirty-five years. Q. Aae you familiar then with all the details of the actual calirying out of that mission or the transportation ofA. I am. Q. There has been some testimony here offered in the plaintifis' case to the effect that they had to wait long periods of time a t scheduled bus stops. State what the facts ape about these buses running on schedule, and so forth. A. I Blan my schedule on clock time to reach the corners at a cektain time and, if they are waiting much longer [fol. 3101 than what they say here, they are there before the bus is supposed to get there.
Judgq Hill: I can't hear the witness. Judgd Mellott: It's difficult to hear you, Mr. Grimes; if you will talk a little louder.

By Mr. Goodell:
Q. Repeat that. A. I say I run my bus on the scheduled time by the clock and, if there is children a t the corners that have to wait any
length of time, they are there long before the bus should be able to get there. They know what time the bus is
supposed to get to the corner. Q. There is some testimony here in the case given yes-
terday relating to scheduled stop where a child or parent, perhaps both, testified they had to go seven blocks down here to get to the bus a t First and Quincy. Are you familiar with that?
A. Yes, I am. Q. I s that correct4 A. No. Q. What are the facts about it? A. This child lives four bloclcs and three houses west of First and Kansas Avenue and the bus sets seventy-five feet east of First and Kansas Avenue. Q. Were you present in court when the testimony was given about the time of the morning that they left in [fol. 3111 order to get to the bus stop? A. I was. Q. So that would be thirty minutes to go four blocks. A. That's right. $. Do you have, as a practical matter, do you have instances of colored children, negro children, going farther from their home than a scheduled bus stop in order to get to ride longer? A. I used to have, but I don't have that anymore. Q. What-do you know the proximity-some of the children have you pick them up-how far away? A. I think the longest distance is five blocks. Q. And the closest 7 A. The closest distance, some of them are right by their houses. Q. How far from school? A. Oh, some of the Washington children are eight or nine blocks from school when I pick them up. Q. What are some of the closest you pick up and take7 A. From the school?

Q. Prom many of the schools, yes.
A. That is about the distance-Sixth and Chandler is the closest.
Q. Yes. Now there was some testimony given yesterday [fol. 3121 to the effect by one parent-I don't have his name-lives out here in the east part of town, around Chandler in that neighborhood-he had his child ride on the city bus because he had observed children leaning out the windows and their arms out the windows, and so forth. How are these buses built?
A. According to the state regulations on buses, school
buses, you have to have half windows in your buses and my windows let down from the top, not any farther than that distance, and they can't get their heads out.
Q. It's impossible.
Judge Mellott : Indicating what, six inches t The Witness : About six inches.

By Mr. Goodell :
Q. Now, do you try to maintain some decorum in those buses so that it's orderly and the children-
A. -the principal to put a patrol on each one of these buses.
Q. You mean the principal- of the schools have a school patrol on each bus.
A. That's right. I&. And they ride the buses, do they? A. They do.
Mr. Qoodell: I believe that is all. Judge Huxman : You may cross-examine.

[fol. 3131

Cross-examination.

By Mr. Carter:
Q. Mr. Grimes, how many buses do you operate7 A. J u s t one. Q. And to how many schools do you take children? A. Two. Q. I show you this exhibit, would you indicate to me what

the bus schedule you follow on that exhibit-the exhibit is marked "G"-
Judge Mellott : "Q"? Mr. Carter: "Q". The Witness :I follow the Washington and Monroe schedules.
By Mr. Carter :
Q. Now you have looked at this schedule and this is correct?
A. That is the time the bus arrives a t certain places. Q. I note on this schedule which you have indicated is correct that at 8:29 you unload the rest of the group a t
the Monroe School; that is, your first load is taken to the Monroe School, and you get there 8:29, is that correct?
A. That varies on account of traffic sometimes; some-
times it's after that and sometimes a little before that. Q. The schedules-the schedule indicates-I thinlr your
testimony indicated that you arrived a t a certain time per day and that there was no waiting because of the sched[fol. 3141 ule. Now you tell me that here when it says you are supposed to get to the Monroe School a t 8:29 you cannot say that is correct because it varies due to the traffic. Now is this or is this not a correct time schedule f o r your buses ?
A. I didn't say I got to the Monroe School a t 8:29. Q. Your schedule says it does. A. I ltnow, but that is not my schedule.
Judge Huxman: It seems to me-I don't want to restrict the opportunity to present this evidence-but this goes to a very minor matter. In the first place, there is a schedule and, in the second place, I think I would take judicial knowledge that maybe buses sometimes are a little bit late and sometimes children get there a little ahead of time. I doubt if there ever was a bus that ran exactly on the second. I don't want to restrict you in your cross-examination, but I wouldn't pursue,that too far.
Mr. Carter: Well, the only reason that I raised it is that the testimony which has been established, attempted to be established by the defendants, is that the schedule is followed and that the bus arrives on time.

Judge Huxman: Suppose you established that the schedule varied or the bus wasn't always there on time, do you think that would have a weighty bearing on the question [fol. 3151 of whether the due process clause of the Fourteenth Amendment was thereby violated. It might be an insignificant----
Mr. Carter: I don't believe it would be crucial. Judge Huxman: Let's not pursue it too far. This case isn't going to turn on whether this schedule is strictly adhered to or whether there is a variance in it. Mr. Carter: All right, sir, I will follow your suggestion. Judge Huxman: I n the first place, I think the buses are late. I have never seen a bus yet that wasn't late.
By Mr. Carter:
Q. What is the maximum capacity on your buses? A. My bus has a seating capacity of thirty-six. Q. And you indicated that there are monitors on the bus. A. Yes. Q. Who are they? A. I don't know 'them by name. I don't know hardly any of the children by last names; some of the first names, I believe, the older boys and girls of the different schools. Q. Is this only on your return from school? A. No, going to and coming. Q. Going to and coming. [fol. 3161 A. Yes, sir. Q. Every day there is a different person. A. No, it isn't a different person; it's the same child. Q. You don't know who it is. A. I know who they are by looking a t them. I can't tell you their names because I am not familiar with all their names.
Redirect examination.
By Mr. Goodell:
Q. Mr. Grimes, you mentioned that only Monroe and
Washington were the only ones you personally transported.

Do you know how the other schools are handled, who transports them?
A. The Topeka Transportation Company. Q. The city bus system. A. The city bus system. Q. They use their own ordinary equipment. A. That's right. Q. They contract that with the Board of Education. A. That's right.
Mr. Goodell: Tha.tls all. Judge Huxman: Step down.
(Witness excused.)
[fol. 3171 THELMAMIFFLIN,having been first duly sworn, assumed the stand and testified as follows:
Direct examination.
By Mr. Goodell :
Q. State your name to the Court and for the record. A. Thelma Mifflin. Q. What official position do you hold in the city schools? A. I am the clerk of the Board of Education.
Judge Huxman: I didn't get the answer. The Witness: I am the clerk of the Board of Education.
By Mr. Goodell:
Q. How long have you been in such administrative capacity?
A. I have been in Topeka in that capacity for nine years ; twenty-seven years total in other school systems.
Q. Are the records then that have been furnished the Court here that are exhibits in this case, were they made under your supervision and direction B
A. Yes, sir. IQ. They are true and accurate records? A. They are. Q. And reflect correctly the matters which are covered by them!

 </s> [FROMTHE U.S. SUPREMCEOURTRECORD]
[fol. 131 INUNITEDSTATEDSISTRICTCOURT
ANSWEROF DEFENDANTSTO AMENDEDCOMPLAINTAS AMENDEIDN PARAGRA8PTHH E R E O F - F ~Ju~n~e~7, 1951 1. Defendants admit the allegations stated in paragraphs
4 and 6 of the Amended Complaint, except that defendants allege that the City of Topeka is one school district, as hereinafter set forth. Defendants deny all the allegations stated in Amendments to paragraph 8 of the Amended Complaint, and further deny all the allegations stated in paragraphs 9,10 and 11of the Amended Complaint.
2. Defendants admit the allegations stated in paragraph 1 (a) of the Amended Complaint, except defendants deny that the 'amount in controversy, exclusive of interest and costs, exceeds $3,000.00.
3. Defendants admit the allegations stated in paragraph 2, except defendants deny that infant plaintiffs are denied rights and privileges of enrolling in, attending and receiving instruction in public schools within the district in which they live; and deny that they have denied infant plaintiffs educational opportunities equal to those afforded white children.
4. Defendants allege that the City of Topeka, Kansas, is in and of itself one school district; that acting pursuant to authority vested in it, defendants have designated and defined 22 separate territories within the City of Topeka and in each of said territories have established and maintain a public elementary school, and white children are required to attend the elementary school located in the territory in which they live; that defendants have also established and maintain four separate elementary schools for colored children within said district, and only colored children in the City of Topeka may attend said four schools. [fol. 141 Defendants further allege that the colored school

children, including infant plaintiffs, may attend any one of these four schools.
5. Defendants allege that said separate schools are established and maintained pursuant to the laws of the State of
Kansas, G. S. 1949, 72-1724, and separate schools are pro-
vided only for elementary school children, to-wit, the first six grades.
6. Defendants allege that they have established and maintain junior high schools throughout the City of Topeka and have designated and defined territories for each of said schools; that both colored and white children may attend these schools and are required to attend the junior high school located within the territory in which they live.
7. Defendants allege that transportation facilities are provided for colored school children attending the four colored schools mentioned in paragraph 4 hereof, and said transportation facilities are furnished any colored school child attending elementary schools, upon request; that no transportation is furnished white children by the defendants.
8. Defendants admit the allegations stated in paragraph 3 (b) that adult plaintiffs are citizens of the United States, the State of Kansas, Shawnee County and the City of Topeka, Kansas, and deny the remainder of said paragraph. Defendants further deny that adult plaintiffs are compelled to send their children to schools outside the district wherein
they live. 9. Defendants admit the allegations stated i11 paragraph
3 ( a ) that infant plaintiffs are citizens of the United States, State of Kansas, Shawnee County and the City of Topeka, Kansas, and that they are among those classified as negroes. [fol. 151 Defendants allege that infant plaintiffs have presented themselves for enrollment and registration in elcmentary schools for white children but were denied the right to enroll therein. Defendants allege that infant plain-
tiffs, because of race and color, do not satisfy the requirements. for admission to schools for white cbildren and by reason thereof they were denied admission. Defendants
deny the remainder of paragraph 3 (a). 10. Defendants allege that they are without knowledge
o r information sufficient to form a belief a s to the truth of the allegations stated in paragraph 3 (c) of the Amended

Complaint, or that adult plaintiffs are taxpayers of Shawnee County, the State of Kansas, and the United States, as stated in paragraph 3 (b).
11. Defendants admit the allegations stated in paragraph 5 of the Amended Complaint, but deny that they are governed by Qeneral Statutes 1935, and supplements thereto, section 72-1809, for the reason that said statute applies to public schools in cities of the second class and not to public scl~oolsin cities of the first class to which class the City df Topeka belongs.
12. Defendants deny the allegations stated in paragraph 7 of the Amended Complaint, and allege that white school children of elementary school age in the City of Topeka a r e required to go to the elementary schools within the designated boundaries of the territory in which they live, and that these schools are within the school district of the City of Topeka; that infant plaintiffs go to elementary schools within the district in which they live, namely, the school district of the City of Topeka, Kansas, and they may attend any of the colored elementary schools within the City of Topeka, as set forth in paragraph 4 hereof. Defendants further allege that the distance traveled by colored children [fol. 161 in reaching the schools they attend is not on the average greater than the distance white children are required to travel.
Wherefore, Defendants pray that plaintiffs take naught ; and that defendants have judgment and costs.
Lester M. Goodell, George M. Brewster, Topeka,
Kansas, Attorneys for Defendants.
Duly sworn to b y Lester M. Goodell. Jzlrat omitted ire
printhg.

 </s> [FROMTHE U.S. SUPREMCEOURTRECORD]

[f 01.171

[Pile endorsement omitted]

[Title omitted]
SEPARATEANSWERO F THE STATEO F KANSAS-Piled June 15, 1951
Comes now the State of Kansas, an intervening defendant, by Edward F. Am, Governor of said State, and Harold R. Fatzer, the Attorney General thereof, and for its answer to the amended complaint herein alleges as follows:

That the amended complaint in said cause fails to state a claim or cause of action against this intervening defendant upon which relief may be granted to the plaintiffs.

This intervening defendant admits the allegations contained in paragraph 1 of the amended complaint except that it denies the amount in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000.00.

111

This intervening defendant admits the allegations con-

tained in paragraph 2 ( a ) of the amended complaint ex-

cept that it, expressly denies Chapter 72-1724 of the Gen-

eral Statutes of Kansas, 1935 (1949), is unconstitutional.

This defendant is without knowledge or information to

either admit or deny the truth or the allegations contained

in paragraph 2 (b), (c), and paragraph 3 ( a ) , (b) of the

amended complaint.

[f 01.181

IV

This defendant admits the allegations contained in paragraphs 4 and 5 of the amended complaint, but denies that the defendant, Board of Education of Topeka, Shawnee County, Kansas, is governed by the General Statutes of Kansas, 1935, and supplements thereto, Section 72-1809, for the reason that said statute has no application to pub-

lic schools in 'cities of the first class to which class the
v city of Topeka belongs.
For further answer herein this intervening defendant states it is without lcnowledge or information to either admit or deny the truth of the allegations contained in paragraphs 6,7,8 a.s amended, 9 or 10 of the amended complaint. A11 other allegations contained in the amended complaint which are not hereinbefore admitted or explained are hereby expressly denied.
Wherefore this intervening defendant prays that plaintiffs take naught by this action and that defendants have judgment for all costs herein expended.
Harold R. Fatzer, Attorney General for the State of Kansas; Willis H. McQueary, Assistant Attorney General for the State of Kansas ; C. Harold Hughes, Assistant Attorney General of the State of Kansas.
[Verified by Willis H. McQueary.]

 </s> [FROMTHE U.S. SUPREMCEOURT&CORD]
[fol. a1
IN UNITED STATES DISTRICT COURT FOR THE DIgTRIOT OF KANSAS
[Caption omitted]
OLIVERBROWNM, rs. RIUHARLDAWTONM,rs. SADIEEMMANUEL, Mrs. Lucinda Todd, Mrs. Iona Richardson, Mrs. Lena Carper, Mrs. Shirley Hodison, Mrs. Alma Lewis, Mrs. Darlene Brown, Mrs. Shirla Fleming, Mrs. Andrew Henderson, Mrs. Vivian Scales, Mrs. Marguerite Emmerson, and
LINDACAROBLROWNa,n infant, by Oliver Brown, her father and next friend,
VICTORIJAEALNAWTOaNnd CAROKLAYLAWTOiNnf,ants, by
Mrs. Richard Lawton, their mother and next friend,
JAMES MELDONEMMANUEaLn, infant, by Mrs. Sadie Em-
manuel, his mother and next friend, NANCYJANTEODDa, n infant, by Mrs. Lucinda Todd, her
mother and next friend, RONALDD O U G L ~RICHAILDSOaNn , infant, by Mrs. Iona
Richardson, his mother and next friend, KATHERINLEOUISECARPERa,n infant, by Mrs. Lena Carper,
her mother and next friend,
CHARLEHSODISOaNn,infant, by Mrs. Shirley Hodison, his
mother and next friend, t
[fol. b] THERONLEWISM, ARTHJAEALNEWISA, RTHURLEWIS and Frances Lewis, infants, by Mrs. Alma Lewis, their mother and next friend,
SAUNDRIDAORSTELUBROWNa,n infant, by Mrs. Darlene Brown, her mother and next friend,
DUANDE EANFLEMINanGd SILASHAWRICKFLEMINinGfa,nts,
by Mrs. Shirla Fleming, their mother and next friend,
DONALADNDREWHENDERSaOnNd VICKIANNHENDERSON,
infants, by Mrs. Andrew Henderson, their mother and next friend,

RUTHA N N SCALEaSn, infant, by Mrs. Vivian Scales, her mother and next friend,
CLAUDAERTHUREMMERSOaNnd OBORGREOBERTEMMERSON, infants, by Mrs. Marguerite Emmerson, their mother and next friend, Plaintiffs, vs.
BOARDOF EDUCATOIFOTNOPEKAS,HAWNCEOEUNTYK,ANSA;S Kenneth McFarland, Superintendent of Schools of Topeka, Kansas ;and Frank Wilson, Principal of Sumner Elementary School, Defendants,
and
THESTATOEF KANSASI,ntervening Defendant
No. T-316 Civil
[fol. I] AMENDECDOMPLAINT-FiledMarch 22,1951
1. ( a ) The jurisdiction of this Court is invoked under Title 28, United States Code, section 1331. This action arises under the Fourteenth Amendment of the Constitution of the United States, section 1,and the Act of May 31,1870, Chapter 114, section 16,16 Stat. 144 (Title 8, United States Code, section 41), as hereinafter more fully appears. The matter in controversy exceeds, exclusive of interest and costs, the sum or value of Three Thousand Dollars ($3000.00).
(b) The jurisdiction of this Court is also invoked under Title 28, United States Code, section 1343. This action is authorized by the Act of April 20,1871, Chapter 22, section 1,17 Stat. 13 (Title 8, United States Code, section 43), to be commenced by any citizen of the United States or other persoizs within the jurisdiction thereof to redress the deprivation, under color of a state law, statute, ordinance, regulation, custom or usage, or rights, privileges and immunities secured by the Fourteenth Amendment to the Constitution of the United States, section 1,and by the Act of May 31, 1870, Chapter 114, section 16, 16 Stat. 144 (Title 8, United States Code, section 41), providing for the equal rights of citizens'and of all other persons within the jurisdiction of the United States, as hereinafter more fully appears.

(c) The jurisdiction of this Court is also invoked under Title 28, United States Code, section 2281. This is an action for an interlocutory injunction and a permanent injunction .restraining the enforcement, operation and execution of statutes of the State of Kansas by restraining the action of defendants, officers of such state, in the enforcement and execution of such statutes.
2. This is a proceeding for a declaratory judgment and injunction under Title 28, United States Code, section 2201, for the purpose of determining questions in actual contro[fol. 21 versy between the parties to wit:
( a ) The question of whether the state statute, ch. 72-1724 of the General Statutes of Kansas 1935, is unconstitutional in that it gives to defendants the power to organize and maintain separate schools for the education of white and colored children in the City of Topeka, Kansas.
(b) The question of whether the customs and practices of the defendants operating under Ch. 72-1724 of the General Statutes of Kansas, 1935, are unconstitutional in that they deny infant plaintiffs the rights and privileges of enrolling in, attending and receiving instruction in public schools of the district within which they live while such rights and privileges are granted to white children similarly situated ; where the basis of this refusal and grant is the race and color of the children, and that alone.
(c) The question of whether the denial to infant plaintiffs, solely because of race, of educational opportunities equal to those afforded white children is in contravention of the Fourteenth Amendment to the United States Constitution as being a denial of the equal protection of the laws.
3. ( a ) Infant plaintiffs are'citizens of the United States, the State of Kansas, and Shawnee County, the City of Topeka, Kansas. They are among those classified a s Negroes. They residewithin various school districts in the City of Topeka, satisfy all requirements for admission to schools within the districts within which they live, have presented themselves for enrollment and registration at the proper times and places, and were denied the right to enroll therein, on account of their race and color. Instead, they

are required, solely because of race, to attend schools where they do not and cannot receive educational advantages, opportunities and facilities equal to those furnished white [fol. 31 children.
(b) Adult plaintiffs are citizens of the United States and the State of Kansas, are residents of and domiciled in Topeka, Shawnee County, Kansas, are taxpayers of said county, of the State of Kansas, and of the United States. They are the parents and natural guardians of infant plaintiffs named herein. By being compelled to send their children to schools outside the districts wherein they live rather than to schools within said districts, they must bear certain burdens and forego certain advantages, neither ,of which is suffered by parents of white children situated similarly to children of plaintiffs.
(c) Plaintiffs bring this action on their own behalf and also on behalf of all citizens similarly situated and affected, pursuant to Rule 23A of the Federal Rules of Civil Procedure, there being common questions of law and fact affecting the rights of all Negro citizens of the United States similarly situated who reside in cities in the State of Kansas in which separate public schools are maintained for white and Negro children of public school age, and who are so numer-
ous a s to make it impracticable to bring them all before the
Court.
4. The State of Kansas has declared public education a state function in the Constitution of the State of Kansas, Article 6, Sections 1and 2. Pursuant to this mandate, the Legislature of Kansas has established a 'system of free public schools in the State of Kansas, according to a plan set out in Chapter 72 of the General Statutes of Kansas, 1935, and supplements thereto. The establishment, maintenance, and administration of the public school system of Kansas is vested in a Superintendent of Public Instruction, County Superintendent of Schools, and City School Boards. (Constitution of Kansas, Article 6, section 1.)
[fol. 43 5. The public schools of Topeka, Shawnee County, Kansas are under the control and supervision of the defendants.

(a) Defendant, Board of Education, is under a duty to enforce the school laws of the State of Kansas

6/22/51

1949

amended a t (General Statutes of Kansas, 1935, [and sup-

Pre-Trial

72-1724

A.J.M.

plements thereto,] * section 72-1809) ; to

maintain an efficient system of public schools

in Topeka, Shawnee County, Kansas; to determine the

studies pursued, the methods of teaching, and to establish

such schools as may be necessary to the completeness and

efficiencyof the school system. It is an administrative de-

partment of the State of Kansas, which discharges govern-

mental functions pursuant to the Constitution and the laws

of the State of Kansas. (Constitution of Kansas, Article 6,

sections 1 and 2, General Statutes, 1935, and supplements

thereto of Kansas, section 72-1601). It is declared by law

to be a body corporate and is sued in its governmental

capacity.

(b) Defendant Kenneth McFarland is Superintendent of Schools, and holds officepursuant to the Constitution and the laws of the State of Kansas, as an administrative officer of the free public school system of the State of Icansas. He has immediate control of the operation of public schools in Topeka, Shawnee County, Kansas. He is sued in his official
capacity.

6. Defendant, Board of Education of Topeka, Shawnee County, Kansas, has established and at the present time maintains in the City of Topelra, State of Kansas, elementary schools for the education of the school children of the City of Topeka. They are located within different districts of the City of Topeka, whose boundaries are designated by the defendant, Board of Education.

7. White Children of elementary school age go to the school within the designated boundaries of the district i n which they live. [fol. 51 Infant plaintiffs live within the boundaries of these districts, but they are required to leave the districts within which they live and travel from one and one-half miles to

" Struck out in copy.

 </s> 247
[fo1. 397] IN UNITED STATES DISTRICT COURT DEGREEr--:-Entered August 3, 1951.
Now on this 3rd day of August, 1951 this cause comes regularly on for hearing before the undersigned Judges, constituting a three-judge court, duly convened pursuant to the provisions of Title 28 U. S. C. 2281 and 2284.
The Court has heretofore 'filed its Findings of Fact and Conclusions of Law together with an opinion and has held as a matter of law that the plaintiffs have failed to prove they are entitled to the relief demanded.
Now, therefore, it is by the court, considered, ordered, adjudged and decreed that judgment be and it hereby is entered in favor of the defendants.
Walter A. Huxman, Circuit Judge, Arthur J. Mellott, Chief District Judge, Delmas C. Hill, District Judge.

 </s> n; 'I~ :JI3~R:_, I CJIBT
::!"' KA~..:> ~S

Oliver )row.a .
l _,::) . RIG"11'1::1.:J LA. TO ' ?·- 0. SADE 1:1. -W.A_. 'i..3L ,
JA TO_,:J' _:s . Iv A RICru :TuS J~ ' L ..._TA CA..R.i: .....:-i., _:iS . .::>:IIRLE: ....u.OI.:> - ,
ALI - k ' I;:; ' .....iS • .JA3LE E _,Row_ ' 'RS • v Id.LA LJ.:: I ~ , .:1.S . A-m.R.E~ h"E DE3..Sv_ , ~ .o. \ I\i IA.... BvALE"=> , _.;:;, . Y - -::.Lm,. ITE r:> _ ..:.._4:>0 ,
A D :LI A _,At"l ..:,..- ,1 , an ii .:·a.i1t 'by LIV ~R .u-tO <.J.T , her father and ~J. ext r·riend ,
VL,'1'0'2.IA J "'Ai Li.,. iT i- .b.._ -;; JAI O.w .AY I.., ,, ::\,_, , infants, by .Tu:: . HI03ARD LA:.TJ1, t ..1eir motner and next friend ,

JA. ES .. .8:,,Uu.. ~........h_ ·uEL , an infant, by •
~AD ~= ~.-..A.r~'J!.L , nis mother ana next friend,
-A.-:::.- J~E TODD , an i::ifa1..t, oy ~.Ru . LUGI3'DA
T .ul: , ..:ler mo t her and next rriend ,

RONALD DJUGLAS RIG IA..:l.D~v~ , an infant , oy !{rs. Iona Ricnardson , his m.otner and ::iext 1riend,

KAT-IE?r.:r:E L ,UI;:; ~ ,,,_".::..t'ER , an infant, by Itrs. Lena Carpe~ , her Mother and next rriend ,

CR 1L:..::> .v~ISJ_ , an infa.~t, by. rs. S~irley Bodison , h:.s mother and next friend ,

L.. Io, :i A.....,qTHJ.. J .c;A'.·~ L .. :S, a.,.q~·ff:'R
L .. iii:> a.'1d F.13.A- C L JD:> , in~a:.:ts, oy ..._rs . Alma Le~is , tneir motner and next frierd ,

SAt 1)_ IA ::r3i:::;T':B;LLA BR0 ..11 ' an infant' b-;-"
rs. 'Jarlene ~ro•m, iler mother and :c.ext
frie_1d,

~- -- IT3:. _ G and S ILA0 .A...'1.J. I..,~
~LL- - ~ ' inra~ts, oy .. rs. Siirla ,le~in0 , their mother and next friend ,
=c- DO TJ!L: A- DlU,f .. .33 and ICKI ANf.i
..-;.EI:,.,,_,"~;::, .... , infarts, by ~r s. Andrew liendersok~ , their ~otne r and next friend,

i t..'G:S:. Al: uv.tt.LlS, an iJ.1.fan t, b:r :j:rs . Vivi an Scales, .1er motl19r and next friend ,

c:..~t E AR-H'CI E .._ ::;_ i::iOl: and '):U-.J~>{1}£ rl03ERT

_:rs . E _ _.RS · , infants, by

~.ar,:,i.rnr ite

'Rmnerson, Their :notner and next frie:1-d ,

PLAI TI::: i:<S

~ ~ L~ ~ FEB 2 8 1~
B~~ ~: ~ -~JNGTON;OC.lpeurtky_
\

vs
BOA.HD 0F EDUCATIO~ OF. TOPE .::A, SHA'.ftfL'lEE ··ou'NTY, KAI"SAS' Alm ·KETu"JiliTH McFARLA.l\:""D, S DPEHL :5S~ DE .T vF SCl:I.OOIB F' TOP=:A , XAl SAS , and FRA v ILS )r , 1- RI: CIPAL OF SlT1Jln!lR EU,.iENTARY ~CHOOL
CO M PLAI ~T T·
1 . (a) The jurisdiction of this Court is invoked under 'l'itle 28 , United States Code , section 1331. This action arises under the Fourte enth Amendment of' the vonstitution of the United dtates , section 1 , and the Act of ~ay 31 , 1870 , Chapter 114 , section 16 , 16 Stat . 144 (Title 8 , United States Code , section 41) , as hereinafter more fu lly appears . The matter in co ~ trovers y exceeds , exclu sive of interest and. costs , the sum or value of Three Thousand Dollars ($3000. 00 ) .
(b) he j urisdiction of this Court i s also invoked under Title 28 , United btates Code , s e c tion 1543 . This action is au t hor ized by the Act of April 20 , 1871, Chapter 22 , section 1 , 17 Stat . 13 (Title 8 , United States Code , section 43) , to b e commenced by any citizen of the United States or other persons within the jurisdiction thereof to redress t he deprivation , under color or a state law , statute , ordinance , re _£ulatior. , c u_stom or usa e , or rights , privileges a.nd i mmuni ties secured by t he Fourteen th Amendment to the Constitution of the Un ited States , section 1 , and by the Act of ~:ay 31, 1870 , Chapter 114 , section 16 , 16 Stat . 144 (Title 8 , Uni ted States Code , section 41) , providins for tne equal ri:;.hts of citizens and of all ot her persons within the jurisdiction of the Unit ed States , as hereinafter more fully appears .
(c) The jurisdiction of t h is Court is also invoked under Title 28 , Un ited States Code , section 2281 . This is an ac tion for an interlocutory injunction and a permanent in .Junction re s training t he enforcement , operation and execution of such statutes .
2 . This is a proceeding f or a declaratory jud0 ment and injunc tion u.. d er Title 28 , United States Code , section 2201 , fo r the purpose of determining questions in actual controversy be tween t he parties , to wit:

2

( a ) The question of wnether the st,ate statute , Ch 72-

1724 of the Gene r al Statutes of Kansas , 1935 , is uneonstitutional

i n that it gives the de.fendants the powe r to orsani ~ e and maintain

separate schools for the education of white ano colored children

in the city oi' Top,e. ka , Kansas , for the reaso.ri that said authority
.. is an un_lawful,deligation of le~ islative power , in that said
authority is Unlirnite'd and Without adequate standards .

(b ) The question of whether the cust.oms and practices of

the defendants operating under Ch . '72- 1'724 of the General Statuei
.. of' Kansas , 1935 , are unconstitutional i n that they deny inf~n t

p l aintiffs and other Negro·child.ren similarly situated ., the r.ie:.hts

and pri\tileges of enro l ling , attendinc, and receiTin5 instruction

ln thB school of' the district in which they reside; while such. rights

and privile0 es .ar~ Granted to white children s~milarly situated; where the basis of t h i ·s refusal and 0 ra11t is tne race t he ehildren , and tb..at alone .
-I
(e ) The questiDfI of whether the denial to infant pl.airi) 1

tifi's , so l ely oecause of race , of educational opportunities equal

to those afforded white children at the Sumner school and other

schools similarly situ,.a-ted in th_e city of Topek?- , Kansas is in c ontr 'awe:ntion of the Fourte~ntp A.mendment to the United States

Qonst i tution as being a denial 01 :f the equal protection Of the laws .

3 . (a) Infant plairitiffs are citizen s of the United States ,

the State of Kansas , and Snawnee CovntJ , the City of Topeka , Kansas •

. They are a mong those classified as N.egroes . They reside in various

school d~stricts , sati-sfy all requiremen ts for admission to the .

s ch o ols for which adult plaintiffs are taxed· t o support; that said

infant plaintiffs have presented t11e:nselves for enrollment and

reg istration at the proper time an4 place , arrd were denied t he right

to enro ll in and r eceive instr u c tion in the schools of their re -

s pect i ve districts, on a ccount of their rgce and color , and these

alone .

•
Insteau , they are required , solely because of race and

color , t o attend a 1fs o-ca l led11 Nec;ro school , far removed from the

schoo l in the di s trict wherein they reside; which attendance , ·said

Neb,ro children are ca:xp'OseG: to ext;reme Mzza:rdf3 t0 their phys inal._

b.o'die·s . AS a result ther,Ewf , "they do not e.nd ~anno~ F·EH!'-ei, ve edu.-

•O!ta..tiena.l .adva.1l'ta6 es., ~:p;pqrt:unit1es-, and faoilities eql>tal to thc:ace f'urn • hed wh;ite eb:il~'lr'7Jt. st :$Umner Seikl:ool and other $eho0ls desi:g-;

m,,rated'. .f'or 1wtiite cliiltd-'ren .

{b) Adult '.Pla";tntiff's are C.itl.ae-ns fJf the, T.ini.ten 8-Bat.es and

7

ttte

S~&'.te

o.f Kans·et'S ,

and

/
resi n.et·s

a'.f'

-anrj.

dmai.D.ile.d

in

'J!.opek.a.,,

Spawn.ea Oc:n~t,y, Ka!'lsa,.s 1 . aJ?e baxpa _y~rs· ot: said aitJ , 1G.o,µr.rqy , an<l sta.te ,. and of the 11n1ted Sta-t.ea,. The ~r:e; th:e parent-a -:and ,m:iitn-ral

g:u,ardian-s. or 'in.f1a:nt plaintirt'a n&ne<l n~ei.n:.. By being ccmr:pelle,d
to send t:bi..eir ' e.hildne?l t , t:h.e sehool.s µ,tside t,, and away f'rom ,

the s cha-o:Ls irl tb.e d irs tr i ct in 'Whi.ch tb.e y :r,eis ide , they m.'Q.~ t hear

buFdens ,a,nd fo1"ee,"o a..dvant~~es,, neitt:i;er oJ'.' which, is suff'erred b7

pa:ren.ts of ·white e.h11d;r.en situated simila:riy to cnildl"-e.n o.f

plaintiff·s .

(e) "Fltiint.Ufs b~i.ng this acti,on on their o-wn behalf' and.

- also on behal!' o! ail -eitiz.ens simiJ__arlf :situate~ Stn;S. a,fre.eted ,,
ptlr'a.uant- to Rule 23A. of the FeO;eraJ. Rnl.es Df Civil :frod,,~9'u~,e,

·4--

there being COOllllQll qu:ecsti:O.rlS G>,'f law a,n_d_ f~et 'affeetifl.g :the ri&Jlts

o~ a1l llfetz"o cit1ze.ns of the uni t ,e.Q. Sta'bes simj,la;~lf situ.a.tea wM.

reside in 0ities in the Stla.te 0£ liallsas in whic~ sepa~ate puoiie

senoolis e;:re m.ainta.i.ned: f'oJ? 1flhit ,e and Negro ehildren of pUb.1ie s,ehool

aiiSe , and vtn~ a:re. s:© m1mero1rs, as to ma:ke if; lll.tpvaot~c,a.ble t:o br,.ng

tb:e..m a l l bef'or•e. :tne aau.rt .

4 ..

The State of lran'Sas has- decla.re:d ptfolie sdu:ca.ti(.)rn a ~ts.te

function in the 0-onstitu.tion o.f the State of' lf.ansa.s , Artiel-e 6 ,

z. se:etio.ns l and

Purs:u,ant to -b-.hi,s mande:t·~ , the Le,gis.latmre of'

IOu:i:sas has e-s\,a'bl.isihed a a-ys tem ,of t're:e pu.t?lfue schoeil.s in tn.e State

of Kan~as , aeoordlll.~ to a _pls:n s~t ottt ill Oha,;t1>t-~ '72 of tb.~ G~:n...e.r~l

St~t.ute<a of Kanaaa , 1955-, -and 5upplmnents tber.6rto . Tne est.a'b li.sbnaen.t ,

maintenruice , an:a admin1stratien of . e putlio school $J"S'tiem of Kansas

is vested in a _SU;perinten-Oent of FU.1,;I.lic :Ens :eue·t:ion ,, Oour..ty Super~ntendent of Schools , and Citw Sch©~l B0ards . {GonstitutiQ~ of

&ansa'6 , ArtiG-'le 6 , seatio 1)

n.

The public B'ehools of Topelta~ Shawne-e Count'JT, Kansas ,

.are under tb.e c.ontrol and supe.:rvision ll.f t&e defendants .

4

(a) Defendant, Board o.f education, is under a duty to enforce

the school laws of the State of Kansas (General .::itatutes of Kans-as,

1935, and supplements thereto, section 72- 1809); to maintain an

efficient s ystem of public schools in Topeka , Shawnee County,

Kansas; to deter: ine the studies pursued, the methods of teaching ,

and to estab lish such schools as may be necessary to the comp lete -

ness and eff iciency of the school s ystem. It is an administrative

department of the State of Kansas , which discharges governmental

functions pursuant to the Constitution and the laws of the State

of Kansas . (Constitution of Kansas, Article 6 , sections 1 and

2 , General tatutes, 1935 , ~d supplements thereto of Kansas, section

72-16Ql) . It is dec lared by law to j e a body corporate and is sued

in its governmental capacity.

(b) Defendant Kenneth HcFarland is Superintendent of

•

Schools in Topeka, and holds off'ice pursuant to the Constitution and

the laws of the State of Kansas, .as an administrative officer of the

free public school s ystem of the State of Kansas . e has im:;.iediate

control 0f the operation of public schools in Topeka, Shawnee

County, Kansas . lie is sued in his offic ial capacity.

(c) Defendant F·rank ilson , Prine ipal oI' Sumner School

is an administrative officer of the free public school s:r stem of

the City of Topeka , Shaw.nee County, Kansas , and holds off ice

pursuant to the authority vested in the 5oard of Education , incor-

porated under and by virtue of the la ..s of the tate of

He is sued in hi s official capacity.

6 . Defendant , Board of Education of T.opeka , Shawnee County,

Kansas, has established and at the present time maintains in the

City of Topeka , State of Kansa.s , elementary schools for the education

. of the school c hi l a.ren of the City of Topeka.. They are located

within different districts of the City of 'J.·opeka , whose botmdaries

are designated by the defendant, Board of Education .

/

7.

White childred of elementar~ school ab e 5 0 to the school

within the designated bouLdaries .of the district in which they

live .

·.-....

Infan t plaintiffs also live ~ithin the same boundaries

-

--

of designated school districts , but they are required to leave the district and travel from one and one - half miles to two miles to a

separa t e d all- ·~.e ro school, solely be cause of their race and color ,

:

an.d in violation o"f their ribhts under the Fouriteent..h Amendment tb

the Constitution of the United St ates .

8.

As a r&sult o!f' compelling infan:tt pTaint!f'f-s and others

similarly situated to· .att.end a aeparat.e all- Ne gro scho-0.l-i remotely

locatpd and QUtside cf the sch0ol distr·ict where mfant pl·aintif'fs

J/'

.

and others ·a+r-i ila+-ly situated resifl's , infant J:i le:in tii'fs a:re not

pr~vi~erl the edu:cat:ional opportunities b y the d e f endants as p.r:ovide<l

for i;lhe white Pb.ildren similarly situ ted and is i to. ':lliolation of

inf'an:t plaintiff's ri esht'S under . t.he Fourteenth Amendment . or :the

CGa::ietiirution pf t.he. UEl:t ted S'tates .•

9.

-Adult F laintif' s arE:l t>e'::Luired .t:o send their ·children

oulsid® t'he sehool dist,ric·t in which t;hex resi.de bo a separ--ate all-

Ne 5ro .school , 1.vhereas pa-rents of wh.i te ehilctren are permitted to

send their children to soho·el.s clese at hand within the d istric 't

i.p whieh they l.ive , solely becaus·e of race and eolor . Thus., adul'b

plain'bi.ff s aPe oeing denied the equal prote~tio:n of the laws in

viG>lation of the Fourt'eenth Amendment to 'bhe Constitution Gf the

United States .

10 .

!l:li'.ant Pil.ainti.ffs and adu.l t plaintiff's are tner·eby

being willfylly an<i unJ.awful1:y dis-eriminate d a gaih-st by the defendm ts

on aeeeunt of their ra.ee and color, in that infant plaintiffs a.re

00.inpelled .to a.ttem;l schools· pu"t·si.d,e the sC"hool district. in wh iQh.

they liv'e , while white children similarly si:t:ua.te:d are not so

compelled; infa;nt plainti f s an.d adul:t plain:tif'fs aPe being deprived

oi" th.ei:r r1 c.hts guarant'eed PJl tne Q.onstl.tµt,ion a:nd iaw£ of 'fahe

United Stat-es .

11.

Fla:in'tiff s are suffering irrepar-able injury< and face

irreparable inju:i?y i n t~e futµre b'y reason of t tre aots herein com-

plained of . ThBy ha ve no plain,, ade :;_uate o.r c0mplet:e remed y to

rerl.ress the wron6:.s and ille0 al acts herein c0mplained of, either than
th.is suit for a decle!L'ati on of r ,;t6 hts and an injunc-t..~on. Any 0the:r
reme:dy to which plaintiff's mi&ht he remitted would '!:re :attended by

such uncertainties and delays as to deny substantial relief; would

. involve a multiciplioity of suits; and would cause further

irreparab le injury not.

1narn ifrs , but to defendants as

-'WHEREF RE; "plsini;;.ii'..f'~ r .espeotfu1ly pray that:

l ..

1-elae Honorable Courn , "U on filin,o_ of thi~ ao1Itf)laint,

.na·t'ify the Qfiief· J"U-O.ee of -thia CH.rou.1t as required b~ 2.S u._ s . {h

A'" , sec t ion 2;284 , so t.11.at the ·O'h.ief J ._ dg,e mat desi(;nate two. ethall'

judges to se~ve a~ membpre of a t:hJ?ee -jud~e 0ou'l't as. ~utt•c.. by
T;itle 2$,, n. S . G_. A·, s--eetio:n 22S.l., to h~11U" ~d detewmtne thi,fl

ae.t i<:m •

2.

The liqnor-Qb l.e Court enter a jucLgnlent or decree (ft.e:c:J..ar1n.g

that the General S1tatue.~ ·(l)f' ~S'-as , l93o , ?-2-·l '7,24, is 'tmie o.ns ti tu:t~o:.n­

al inftofa:r a-s· it empo wers. aaf'e.n~ants to ~et :qp se;Pa.rttte -sehnols f or

~egro and w.hite schoQl e.hildren.

j•

.5 ,

'l'J:J;,e Honorable Oott t ~Itte a i:ud,gment o~ dE;r<~r~e q e.1aFl.ng

...,.____.,

that the pll>liey , cti$t·9'.llt..t u2ura0 e s.nd p!l!.'a'Ctic·e. o;f de·f'endan.ts i n op er-
ation und~r Ch. 1¥2- 1~24, , Genef'al ~tat-"Q.t§s o::t: Ka._n.sa.s,. 19:36 , :tn

denying p 1.$.1'tlt:if'fs and ot1ne7' Ne3 ro c nil '.!!'en similarly situated in

't.b;e s~lio0l clistric:ta of tb.e Uit-y Qi' Popek~.,. Aa.nsas , lH:>,,leily b eisatiS'e

o:f ra.ce oT c-0loP., he ~...~ and ;g:r1.vi.le6e oi' e.ru;-oJ.l:tr+g in~ atten.d)Jag
and receivj1I ::tn at-.x-ucti.on i n t.h.'6' vario-ua schooJ. districts as is

p:r-o:vided f'o.r white chi.l~en ot: J.i.ke qual_ii',i..catinns , ar~ den'ial.~ ot

their ri.;hts u.nder the equal p:J?ateotio.n c.lai:use o.:f the Unit .ed States

· GQit$;ti'tU;.ti@n an. .aire tJ'.l.e.ref'ore UQe.qn stl.tu·tional an.d void..

4.

The Rono.:Nib l-e Coiil!Et :l:Ssue a perman e-nt inj "O.ne"i~1an fur eve:.r

'l"e:StPaining afld enjoifiind; the da:tendants f t>om e.xe eut~g~ so .muc:Hf G

Oh. 72- 1~24. Gelle:J;'-al $t~t.utes oa:: Kan;;sa..s , 1955., as e~.o ~ers them to

s e t up s epara'bie se .o-0ls f oP r e g-ro and. White school c hi .l dren"'

~

Th.e lto:no:u-ab la Colil.rt. ·issue: a pe:rman.en t inju:- ction

:t'e:>re'V'&r r-estraining the defe:ndan-ts · i'.:ro.m d en ing t he 1'l eoro achoo~1

I

enildYe.n of t,i',J.e City Of Top eka , Jfo.ns:as,, OP accOU:l 't Q;.i; :bl:l.e~ :ra:~

, . Q.?J eo1ol",, the ri · ht and priv:ile 0 .e- of attendi'tl.g the sotie'Ols vti thin
th-61!' r@-speictive distr.ict·s , and from making any disttn o'tion b a:.s ed
OliJ, I''~ ce or color,, in the Q:pp<>::rtunit 1oo wh.icb t b:e d.ef'en d:aa'bs _prQ\il,l.tae.d.

~OP p.ub li·c -edua.atio:n .

;~ .

7

-

6.

The Honorable Court will allo plaintiffs their costs

herein , reasona ele fees .f'or attorneys , and such other and .further

relief as may a !-'pea.r to the Court to ·Je equitable and just .

7.

The Honor&o.le Court retain jurisdiction of this cause-

after judoment to render such relief as may become necessary in the

future .

BLEDSOE, SCOTT, SCOTT, & SCOTT

STATE OF KANSAS )
) SS COUNTY OF SHAWNEE )

ms ATTCR

FOR PLAINTil'FS

CHARU:S E. BIEDSOE, of lawful age, being first duly swarn en oath, deposes and says:
That he is one of the attornqs for the plaintiffs in the above and foregoing complaint. That he has read the above and foregoing statements, and verily believes that all of the statements and allegations therein are true.

~DAY SUBSCRIBED AND SWORN TO BEFURE J.IE

OF

~

,

A.D., 1951.

ra7L..:v~~~

NOTARY

C

I; ltY" Commission Expires: , # . /'I.Ff

. ' • l +·,... "

 </s> ,
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OM _ h~nd ",d fift y yuc • • ,0 th l . Cour t hold thOI It ..00 the ulll _ "..... te Judg_ 01 t he r eHr iclion. ~lLlch l~e Co nstituti on clouo br.n~~., of tt.C notlon. l e" C_ Th it "as pre,u,"ahl y c,n t h, othor th'~ t he o ~"o"~ 1

A• • ~}l ! ed to Que'tlon. or In ter - H,te o r "ote - f.dH a ! cel~t!on" ,

85
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ct~s~I~t~o

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t

ojUr~dI~O,ip&"Il,t-ja'1, cV~ol

r kd.ld' p~qetlu!

.

_'ilhln Wl,,,re

th~ [c~~r~ l ~cvccn~en' , theoretically co - Crdlno t .

hOd ' c o of gov<r""' . n \ ~N !oput l nu , l~e Couc t \ , ~Il .ul ted t o I,. col.

B orb!t~r . Th" 10 L~ca" •• thO, c pr eble".. !nv~ l v. =eh 10. . . mo<io~.• lly

eho r 1od , "bJ~ct .," t tcr than do t hc oe ~I,,'~"o ~ hel o," , In ~ f !-ec\ . !hoy de -

t~ r" l no ,.~. ,~elc t ' l ,..,latlon, of tho ~ov.c"". "t , to . >eh othH Ylthout

{"f l ueTlcl r.g tho 'u ~,t3n tlvc 'u, lne " o~ ,~.o'o gcv.'n-~~t • •

A, a?pll<~ to ,dot! .y~ lo," ~. . . "Qc~o d J>."c h I Indlv"do l

deNl, I ~ r.1 th< ,,~to the

• or cou c.. ,

"ltlo

the fouchc,Hh Al::end -
., >. ~ ~,,'."::~.::fi'

.0

C~<le 1.0 do~.1 note or Pr<>t<ctic.q
Ch=p lon~~ o[ the

?ub l lc op'nio~

I n th~oe ca ocs no~ b~rore th~ Court , tho COurt i> , U ij~vl. '"~<;<H _

ed , bcln~ ~,,,od to re ad 11.< o'on oocltlc,lcai vl"~ . into th~ Can"itdlon .

lIcg ing a v!ew pa1f><0uly at varia nc e ~~th ?r~c~de~ \ ond prot.H y ~·]th le~l' .

M', t " ",.,,,n' Jotl ve ~,It0'Y , appOll,nt, 'M~ t o cOnYlnOe the Co~rt or the ,"oral ... cong _

or the

Hoy ore r '''eiv!n~ . I "ou l ~ , u-;;e,\ tlla\ thl. I; a

<pe,t/on 'he Ceuc ' n•• d r.evor ceaoh : ~" reqor« I , , , M ,~~ J ,,,Uoe', Ind l _

~!~u. l vi. "" on tho !:lorlt, of H~r<'J~tlon . It q~l 1< cle. rly I , net coe of

tho,. ~xtc~"" COSOS wh ic h eo.." .• nd, I n'H"IOnt]On fe e," e~" ¢!' 3o".y convlo ' Io n

I

I f . hh C,,~rt . b~~"lse La c.c:J.or. !nHvL~-,.Jly a n · !n~cal · ~n~ <lhll~e

. . ~ ..... g.tL"n . ",,,. ~h,.o.eo to slclk. It J .. _n . Il dHrer. fro.. lh~ lI.c"eynol<l.

eo~rl only I n the k i nd. of 1I11 •• nt. It r.von .n~ t h_ kIM. or .;:~<!.l

CIOIII. It ~.ol.cl • • To t~ue ~o ..o~ll _que th ~ t· p •• <cr.~ I· rl 9k " .r~

"",re .. c r o •• ~ct ' han ·p",~. rt y· r1ghU , t ho ,hon ano_er ~' ...1!>.It l.~,f~c.on .

c>, nlt"tlon ""'~ ... no luch ~h'lnc tL"n . To tho .rg u",.r"l:a~."!iJ'oUl'iHI'i'., ~·i. hH

• ",oJer ll),

not ~cpriv. 0 ., I"or lty of IU conn!tut!c= 1 rl ~ht , th~ on _

.~'cr nUl t be ",,<I" ,h. t ...~!I. ,hi. Is .ound I n thto ry , In tl".< iono r un It

gT¥1l\C~~: ~ t6r.:h~ u~~~;~d:~~ r~:~~y~:!r!h~re~~~!!;~ !i~ ~'~h~ l ;~~~ ~~ ~~~.

COu rt t o prOl~c t !:l iMr! l), right' or any klnd " "h~lhe r , hO ' f or h" .lnu . ,
Q"'"olav.ho l der. , o r J .ho,,,h'. ·~Hr\e,. u - -hv. I I I not t~. ,."'. f at< . OM by t ho D••• u," bl!' ~ ln9 .u ch r! Gh~' ~.vc b.~ n .louahH ¢ff • • n~ c r. p t lilunlly 10 res t. I f t~" p ~e.ent Cou ~' I. ~nobl. to p r Mlt by 1hl ' ... o"'I,le
H ",~.t b. p , .pHO,l to .eo It. WO~~ fad. In II.... . loo , a enbodylng only

t ~~ nntl.,.nt. of • t u n. lent lOoJorlly cf n l n~ ""n .

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v~lc~ I h~Y. tun ~.corlot~~ by' lIt>ctal " .OIl.'9~u . b~. I think

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 </s> 98 F.Supp. 797 (1951)
BROWN et al. v.
BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS et al.
Civ. No. T-316.
United States District Court, D. Kansas.
August 3, 1951.
John Scott and Charles Scott, Topeka, Kan., Robert L. Carter, New York City, Jack Greenberg, New York City, and Charles Bledsoe, Topeka, Kan., for plaintiffs.
George Brewster and Lester Goodell, Topeka, Kan., for defendants.
Before HUXMAN, Circuit Judge, MELLOTT, Chief Judge, and HILL, District Judge.
HUXMAN, Circuit Judge.
Chapter 72-1724 of the General Statutes of Kansas, 1949, relating to public schools in cities of the first class, so far as material, authorizes such cities to organize and maintain separate schools for the education of white and colored children in the grades below the high school grades. Pursuant to this authority, the City of Topeka, Kansas, a city of the first class, has established and maintains a segregated system of schools for the first six grades. It has established and maintains in the Topeka School District eighteen schools for white students and four schools for colored students.
The adult plaintiffs instituted this action for themselves, their minor children plaintiffs, and all other persons similarly situated for an interlocutory injunction, a permanent injunction, restraining the enforcement, operation and execution of the state statute and the segregation instituted thereunder by the school authorities of the City of Topeka and for a declaratory judgment declaring unconstitutional the state statute and the segregation set up thereunder by the school authorities of the City of Topeka.
As against the school district of Topeka they contend that the opportunities provided for the infant plaintiffs in the separate all Negro schools are inferior to those provided white children in the all white schools; that the respects in which these opportunities are inferior include the physical facilities, curricula, teaching resources, student 798 personnel services as well as all other services. *798 As against both the state and the school district, they contend that apart from all other factors segregation in itself constitutes an inferiority in educational opportunities offered to Negroes and that all of this is in violation of due process guaranteed them by the Fourteenth Amendment to the United States Constitution. In their answer both the state and the school district defend the constitutionality of the state law and in addition the school district defends the segregation in its schools instituted thereunder.
We have found as a fact that the physical facilities, the curricula, courses of study, qualification of and quality of teachers, as well as other educational facilities in the two sets of schools are comparable. It is obvious that absolute equality of physical facilities is impossible of attainment in buildings that are erected at different times. So also absolute equality of subjects taught is impossible of maintenance when teachers are permitted to select books of their own choosing to use in teaching in addition to the prescribed courses of study. It is without dispute that the prescribed courses of study are identical in all of the Topeka schools and that there is no discrimination in this respect. It is also clear in the record that the educational qualifications of the teachers in the colored schools are equal to those in the white schools and that in all other respects the educational facilities and services are comparable. It is obvious from the fact that there are only four colored schools as against eighteen white schools in the Topeka School District, that colored children in many instances are required to travel much greater distances than they would be required to travel could they attend a white school, and are required to travel much greater distances than white children are required to travel. The evidence, however, establishes that the school

district transports colored children to and from school free of charge. No such service is furnished to white children. We conclude that in the maintenance and operation of the schools there is no willful, intentional or substantial discrimination in the matters referred to above between the colored and white schools. In fact, while plaintiffs' attorneys have not abandoned this contention, they did not give it great emphasis in their presentation before the court. They relied primarily upon the contention that segregation in and of itself without more violates their rights guaranteed by the Fourteenth Amendment.
This contention poses a question not free from difficulty. As a subordinate court in the federal judicial system, we seek the answer to this constitutional question in the decisions of the Supreme Court when it has spoken on the subject and do not substitute our own views for the declared law by the Supreme Court. The difficult question as always is to analyze the decisions and seek to ascertain the trend as revealed by the later decisions.
There are a great number of cases, both federal and state, that have dealt with the many phases of segregation. Since the question involves a construction and interpretation of the federal Constitution and the pronouncements of the Supreme Court, we will consider only those cases by the Supreme Court with respect to segregation in the schools. In the early case of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 1140, 41 L.Ed. 256, the Supreme Court said: "The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced."
799 *799 It is true as contended by plaintiffs that the Plessy case involved transportation and that the above quoted statement relating to schools was not essential to the decision of the question before the court and was therefore somewhat in the nature of dicta. But that the statement is considered more than dicta is evidenced by the treatment accorded it by those seeking to strike down segregation as well as by statements in subsequent decisions of the Supreme Court. On numerous occasions the Supreme Court has been asked to overrule the Plessy case. This the Supreme Court has refused to do, on the sole ground that a decision of the question was not necessary to a disposal of the controversy presented. In the late case of Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 851, 94 L.Ed. 1114, the Supreme Court again refused to review the Plessy case. The Court said: "Nor need we reach petitioner's contention that Plessy v. Ferguson should be reexamined in the light of contemporary knowledge respecting the purposes of the Fourteenth Amendment and the effects of racial segregation."
Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 93, 72 L.Ed. 172, was a grade school segregation case. It involved the segregation law of Mississippi. Gong Lum was a Chinese child and, because of color, was required to attend the separate schools provided for colored children. The opinion of the court assumes that the educational facilities in the colored schools were adequate and equal to those of the white schools. Thus the court said: "The question here is whether a Chinese citizen of the United States is denied equal protection of the laws when he is classed among the colored races and furnished facilities for education equal to that offered to all, whether white, brown, yellow, or black." In addition to numerous state decisions on the subject, the Supreme Court in support of its conclusions cited Plessy v. Ferguson, supra. The Court also pointed out that the question was the same no matter what the color of the class that was required to attend separate schools. Thus the Court said: "Most of the cases cited arose, it is true, over the establishment of separate schools as between white pupils and black pupils; but we cannot think that the question is any different, or that any different result can be reached, assuming the cases above cited to be rightly decided, where the issue is as between white pupils and the pupils of the yellow races." The court held that the question of segregation was within the discretion of the state in regulating its public schools and did not conflict with the Fourteenth Amendment.
It is vigorously argued and not without some basis therefor that the later decisions of the Supreme Court in McLaurin v. Oklahoma, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149, and Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114, show a trend away from the Plessy and Lum cases. McLaurin v. Oklahoma arose under the

segregation laws of Oklahoma. McLaurin, a colored student, applied for admission to the University of Oklahoma in order to pursue studies leading to a doctorate degree in education. He was denied admission solely because he was a Negro. After litigation in the courts, which need not be reviewed herein, the legislature amended the statute permitting the admission of colored students to institutions of higher learning attended by white students, but providing that such instruction should be given on a segregated basis; that the instruction be given in separate class rooms or at separate times. In compliance with this statute McLaurin was admitted to the university but was required to sit at a separate desk in the ante room adjoining the class room; to sit at a designated desk on the mezzanine floor of the library and to sit at a designated table and eat at a different time from the other students in the school cafeteria. These restrictions were held to violate his rights under the federal Constitution. The Supreme Court held that such treatment handicapped the student in his pursuit of effective graduate instruction.[1]
800 *800 In Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 850, 94 L.Ed. 1114, petitioner, a colored student, filed an application for admission to the University of Texas Law School. His application was rejected solely on the ground that he was a Negro. In its opinion the Supreme Court stressed the educational benefits from commingling with white students. The court concluded by stating: "we cannot conclude that the education offered petitioner [in a separate school] is substantially equal to that which he would receive if admitted to the University of Texas Law School." If segregation within a school as in the McLaurin case is a denial of due process, it is difficult to see why segregation in separate schools would not result in the same denial. Or if the denial of the right to commingle with the majority group in higher institutions of learning as in the Sweatt case and gain the educational advantages resulting therefrom, is lack of due process, it is difficult to see why such denial would not result in the same lack of due process if practiced in the lower grades.
It must however be remembered that in both of these cases the Supreme Court made it clear that it was confining itself to answering the one specific question, namely: "To what extent does the Equal Protection Clause * * * limit the power of a state to distinguish between students of different races in professional and graduate education in a state university?", and that the Supreme Court refused to review the Plessy case because that question was not essential to a decision of the controversy in the case.
We are accordingly of the view that the Plessy and Lum cases, supra, have not been overruled and that they still presently are authority for the maintenance of a segregated school system in the lower grades.
The prayer for relief will be denied and judgment will be entered for defendants for costs.
[1] The court said: "Our society grows increasingly complex, and our need for trained leaders increases correspondingly. Appellant's case represents, perhaps, the epitome of that need, for he is attempting to obtain an advanced degree in education, to become, by definition, a leader and trainer of others. Those who will come under his guidance and influence must be directly affected by the education he receives. Their own education and development will necessarily suffer to the extent that his training is unequal to that of his classmates. Stateimposed restrictions which produce such inequalities cannot be sustained.
"It may be argued that appellant will be in no better position when these restrictions are removed, for he may still be set apart by his fellow students. This we think irrelevant. There is a vast difference 0907 a Constitutional difference 0907 between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar. * * * having been admitted to a state-supported graduate school, (he), must receive the same treatment at the hands of the state as students of other races." [339 U.S. 637, 70 S.Ct. 853.]
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 </s> 139 F.Supp. 468 (1955)
Oliver BROWN et al., Plaintiffs, v.
BOARD OF EDUCATION OF TOPEKA, Shawnee County, KANSAS, et al., Defendants.
Civ. A. No. T-316.
United States District Court D. Kansas.
October 28, 1955.
469 *469 John Scott, Charles Scott, Topeka, Kan., Robert L. Carter, Jack Greenberg, New York City, Charles E. Bledsoe, Topeka, Kan., and Thurgood Marshall, New York City, for plaintiffs.
George Brewster, Lester Goodell, James Porter, Topeka, Kan., and Harold R. Fatzer, Atty. Gen., Willis H. McQueary and Chas. H. Hobart, Asst. Attys. Gen., for defendants.
Before HUXMAN, Circuit Judge, MELLOTT, Chief Judge, and HILL, District Judge.
PER CURIAM.
On August 2, 1955, the plaintiffs in the above entitled cause filed a motion for a hearing on the formulation of a decree and judgment in this cause. The matter was set down for hearing on August 24, 1955, at Topeka, Kansas. At that time, the parties appeared in person and by their attorneys. A hearing was held, the subject of which was whether the Board of Education had fully complied with the order of the Supreme Court in this cause dated May 31, 1955. 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083.
A full hearing was accorded the parties. Evidence was received and arguments were heard by the respective attorneys. The Board of Education submitted the plan put in force for the current school year to bring about desegregation. No useful purpose would be accomplished by setting out the plan in detail. The Superintendent of the Public School System of Topeka, with commendable candor, gave it as his opinion that the plan adopted for the current school year did not fully accomplish desegregation. The central principle of the plan is that hereafter, except in exceptional circumstances, school children irrespective of race or color shall be required to attend the school in the district in which they reside and that color or race is no element of exceptional circumstances warranting a deviation from this basic principle.
There are a number of respects in which we feel that the plan does not constitute full compliance with the mandate of the Supreme Court, but that mandate implies that some time will be required to bring that about. The elements that we feel do not constitute full compliance are mostly of a minor nature but since this is not a final decree no useful purpose would be served by setting them out herein.
The most serious objection to the present plan relates to the rule adopted, permitting children reaching kindergarten age for the first time to elect whether they will go to the school in the district in which they reside or to a school in another district. It is, of course, obvious that a child of kindergarten school age has no discretion to 470 make an independent *470 or intelligent election as to where it desires to go to school and that the election in such cases is in fact the election of the parents of the child.
The Court does not look with favor upon such a rule, but since it was stated that the rule was a temporary one having application only to the present school year and forming no part of the permanent school plan, we do not feel that it requires a present condemnation of an overall plan which shows a good faith effort to bring about full desegregation in the Topeka Schools in full compliance with the mandate of the Supreme Court. 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083.
It was stressed at the hearing that such schools as Buchanan are all-colored schools and that in them there is no intermingling of colored and white children. Desegregation does not mean that there must be intermingling of the

races in all school districts. It means only that they may not be prevented from intermingling or going to school together because of race or color.
If it is a fact, as we understand it is, with respect to Buchanan School that the district is inhabited entirely by colored students, no violation of any constitutional right results because they are compelled to attend the school in the district in which they live.
It is the conclusion of the court that while complete desegregation has not been accomplished in the Topeka School System, a good faith effort toward that end has been made and that, therefore, the plan adopted by the Board of Education of the City of Topeka be approved as a good faith beginning to bring about complete desegregation. Jurisdiction of the cause for the purpose of entering the final decree is retained until such time as the Court feels there has been full compliance with the mandate of the Supreme Court.
It is so ordered.
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 </s> 892 F.2d 851 (1989)
Oliver BROWN, et al., Plaintiffs, and Charles Smith and Kimberly Smith, Minor Children, By Their Mother And Next Friend,
Linda Brown Smith, et al., Intervening Plaintiffs-Appellants, v.
BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS, et al., DefendantsAppellees.
No. 87-1668.
United States Court of Appeals, Tenth Circuit.
December 11, 1989. Rehearing and Rehearing Denied January 29, 1990.
8523 *852 *853 Christopher A. Hansen (Richard Jones, Wichita, Kan., Charles Scott, Sr., Charles Scott, Jr., Kansas 854 City, Mo., and Joseph Johnson, Topeka, Kan., with him on the *854 brief), American Civil Liberties Union
Foundation, for plaintiffs-appellants.
Dan Biles, of Gates & Clyde, Overland Park, Kan., Carl Gallagher, Asst. Atty. Gen. (Robert T. Stephan, Atty. Gen. with him on the brief), and K. Gary Sebelius (Ann L. Baker, Charles D. McAtee and Charles N. Henson with him on the brief) of Eidson, Lewis, Porter & Haynes, Topeka, Kan., for defendants-appellees.
Before McKAY, SEYMOUR and BALDOCK, Circuit Judges.
Rehearing and Rehearing En Banc Denied January 29, 1990.
SEYMOUR, Circuit Judge.
"[O]nce you begin the process of segregation, it has its own inertia. It continues on without enforcement."[1] This comment by one expert on segregation in schools succinctly summarizes the state of affairs in Topeka. As a former de jure segregated school system, Topeka has long labored under the duty to eliminate the consequences of its prior state-imposed separation of races. Brown v. Board of Educ., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). The district court concluded that Topeka has fulfilled that duty, and that the school system is now unitary. Because we are convinced that Topeka has not sufficiently countered the effects of both the momentum of its pre-Brown segregation and its subsequent segregative acts in the 1960s, we reverse. Specifically, we hold that the district court erred in placing the burden on plaintiffs to prove intentional discriminatory conduct rather than according plaintiffs the presumption that current disparities are causally related to past intentional conduct. We are convinced that defendants failed to meet their burden of proving that the effects of this past intentional discrimination have been dissipated. We also reverse the district court's holding that the Topeka school district has not violated Title VI. However, we affirm the court's dismissal of the Governor of the State of Kansas and its ruling that the State Board of Education bears no liability for segregation in Topeka's schools.
I.
LEGAL HISTORY
Prior to 1954, a Kansas statute permitted certain cities to maintain separate schools for white and black children below the high school level. In 1941, however, the Kansas Supreme Court held segregation in Topeka's junior high schools to be unconstitutional. See Graham v. Board of Educ., 153 Kan. 840, 114 P.2d 313 (1941) (separate facilities not equal). Topeka was thus legally permitted to operate segregated schools only at the elementary level. The Topeka Board of Education operated such a system. In 1951, black citizens of Topeka filed a class

action challenging the constitutionality of the Kansas law authorizing school segregation. Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I), followed, beginning a new era of American jurisprudence by bringing an end to the doctrine of "separate but equal" and declaring segregation unconstitutional.
The Topeka Board of Education did not wait for the decision in Brown I before taking steps towards desegregating Topeka's elementary schools. It began that process in 1953 by permitting black students to attend two formerly all-white schools. It then gradually increased the number of schools black students might attend. 855 Accordingly, when the Supreme Court considered the question of the relief *855 appropriate in school desegregation cases, it noted that "substantial progress" had already been made in Topeka. Brown v. Board of Educ., 349 U.S. 294, 299, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955) (Brown II). On remand, the district court criticized one aspect of the Board's desegregation plan but described it overall as "a good faith effort to bring about full desegregation in the Topeka Schools in full compliance with the mandate of the Supreme Court." Brown v. Board of Educ., 139 F.Supp. 468, 470 (D.Kan.1955). The court retained jurisdiction of the case, and the decision was not appealed.
Nineteen years later, in 1974, the Office of Civil Rights (OCR) of the Department of Health, Education, and Welfare (HEW) notified the Topeka school district that it was not in compliance with section 601 of Title VI of the Civil Rights Act of 1964.[2] After the Topeka Board of Education failed to adopt a plan designed to remedy the noncomplying conditions identified by OCR, HEW began administrative enforcement proceedings against the Topeka school district. The Board filed suit in federal court and obtained a preliminary injunction against the administrative proceeding on the ground that the district court's 1955 decision was a final order, and that the school district was still operating under that court order and still subject to the court's jurisdiction. HEW was thereby precluded from taking administrative action. See generally Brown v. Board of Educ., 84 F.R.D. 383, 390-91 (D.Kan.1979). In 1976, the Board submitted a plan acceptable to HEW, and both the administrative proceeding and the suit in federal court were dismissed. The Board implemented the plan over the next five years.
In 1979, a group of black parents and children sought to intervene in Brown as additional named plaintiffs on the ground that they were members of the original class and that the original named plaintiffs no longer had a sufficient interest in the matter to represent their interests. The intervenors asserted that Topeka has failed to desegregate its schools in compliance with the Supreme Court's mandate, and that the Topeka school district currently maintains and operates a racially segregated school system. Their request to intervene was granted.[3] See Brown, 84 F.R.D. 383. A long discovery and motion stage followed the granting of the intervenors' motion.
Trial took place in October 1986. The court found the Topeka school district to be an integrated, unitary school system. Brown v. Board of Educ., 671 F.Supp. 1290 (D.Kan.1987). The court also held that the Topeka school district had not violated Title VI of the Civil Rights Act of 1964, dismissed the Governor of Kansas from the case, and found that the State Board of Education bore no liability for racial conditions in the school district. This appeal followed.
II.
BRIEF FACTUAL HISTORY
A. Population Change
In 1950, Topeka's population was approximately 10% black. While Topeka's population grew significantly until 1970 and then dropped, the black percentage of the population remained approximately the same. The Hispanic population of Topeka has been slightly less than 5% since 1970. Other minorities make up less than 1.5% of the population.

The distribution of Topeka's population has changed more significantly than its composition. In general, the outer parts of Topeka, particularly on the western side, have grown considerably in population, while the inner city has 856 declined. Until *856 recently, the western side of Topeka was almost exclusively white. The black population of Topeka was concentrated in a few areas in the center of the city in the 1950s; it has since spread widely throughout the eastern part of the city and has gradually begun to move into the western side of Topeka.
The percentage of black and minority children in the Topeka schools has long been higher than the percentage of blacks and minorities in the Topeka population as a whole and has risen over time. In 1952, black students constituted 8.4% of the total number of students in Topeka. By 1966, the percentage of black students in the Topeka school district was 11.6% and the percentage of minority students was 16.0%. In 1975, black students constituted 14.7%, and minority students 20.9%, of the school population. The latest figures used at trial, those for the 1985 school year, showed 18.4% black and 25.95% minority children in the system.
B. Elementary Schools
In 1951, four Topeka elementary schools were reserved for black children, Buchanan, McKinley, Monroe, and Washington. Eighteen elementary schools educated white children. Black children were bused to their schools; white children attended neighborhood schools. 671 F.Supp. at 1291. Under the four-step plan approved by the district court in 1955, all elementary schools were to be opened by September of 1956 to black and white children under a neighborhood school policy. Id. at 1293. As a result of the new neighborhood school policy, three schools remained all- or virtually all-black (Buchanan (100%), Monroe (100%), Washington (99.4%)), and two others became more than 20% black in a school district with a black elementary student population of less than 10%.[4] McKinley was closed.
During the late 1950s, the school district acquired by annexation the Avondale (outer Topeka, south) and Highland Park (middle and outer Topeka, east) school districts as well as other territory on the edges of the district. Existing schools within the acquired area were either primarily white or primarily black. As school enrollments grew and the population began to shift, the school district began to close elementary schools in the inner part of the city and open them in the rapidly growing outer part of the city. Two of the closed schools were former de jure black schools (Buchanan, and Washington); another de jure school (McKinley) had already been closed. The new schools were built in the newly acquired white areas and opened with all or virtually all white students.
Racial statistics were not kept in an organized fashion from 1956 to 1966. In 1966, the school district operated thirty-five elementary schools. There were some white students in every school. Minority students were present in thirty-two schools. Nineteen of the schools were 90 + % white. An additional seven schools were 80-90% white. Four schools were more than 50% minority, and a fifth was almost 50%. The highest percentage of minority students was 93.1% (Parkdale), and the lowest was 0% (Lyman, McEachron, and Potwin). Sixty-five percent of white students attended 90 + % white schools and an additional 18.7% attended 80-90% white schools. Close to half of all minority students attended 50 + % minority schools.[5]
A second major reorganization of the elementary schools took place in the late 1970s, after the HEW complaint was filed. Eight elementary schools closed over a six-year period, including the last of the four former de jure black schools (Monroe). In September 1982, when the reorganization had ended, minority and white students 857 were present in each of the district's twenty-six *857 elementary schools.[6] Five schools were 90 + % white, and another seven were 80-90% white. Four schools were 50 + % minority, two of them were schools that had been 50 + % minority since 1966. The highest percentage of minority students was 60.6% (Highland Park North), and the lowest was 3.4% (McClure). Close to one-quarter of all white students attended the 90 + % white schools, and another third attended 80-90% white schools, totalling 58% overall. The percentage of minority students in 50 + % minority schools was 35.5%.[7] This was the status of the elementary schools three years after plaintiffs moved to intervene in this lawsuit on the grounds that the school system had not met its mandate to desegregate.

With one or two exceptions, the relative percentages of white and minority students in the elementary schools have changed only by two or three percentage points since that time. The most significant change is that the schools with the highest white percentages have gained some minority students. Thus, in 1985, the lowest percentage of minority students in any school was 7.2% (McClure).[8]
C. Secondary Schools
In 1954, the Topeka school district operated six junior highs and one high school. Two schools were 90 + % white, and three were 80 + % white. The estimated percentage of black students at the junior high schools ranged from 1.7% (Roosevelt) to 30% (East Topeka).[9] While the dissent emphasizes that segregation was not mandated by law for the secondary schools when Brown I was decided, and the student bodies were racially mixed, Linda Brown Smith testified that the junior high school she attended in 1955 (Curtis) had an all-white faculty.[10] When she entered Topeka High school, she recalls that it had one black faculty member.[11]
During the late 1950s-early 1960s period of annexations and building, two junior high schools joined the school 858 system, and *858 three junior highs were built. At the high school level, Highland Park high school was annexed,
and Topeka West high school was built. All of these schools were in the newly acquired white outer part of the school district and opened as white or primarily white schools. 671 F.Supp. at 1299.
In 1966, there were thus eleven junior high and three high schools. At that time, the average minority percentage for the junior high and high schools was 15.3% and 14.9%, respectively.[12] Of the junior highs, five had 90 + % white students and another three had 80-90% white students; one had 50 + % minority students. The highest percentage of minority students at one school was 61.8% (East Topeka), and the lowest percentage was 0% (Capper). Of the high schools, Topeka High was nearly one-quarter minority, Highland Park High had close to 15% minority students, and Topeka West had .4% minority students. French junior high school opened in 1970 in the southwestern part of the school district as a primarily white school. 671 F.Supp. at 1299.
The reorganization of the late 1970s in response to the HEW complaint included the junior high schools. Two junior highs closed in 1975. In 1980, five more junior highs closed and two schools were opened as the district shifted from a junior high (6-3-3) to a middle school (6-2-4) format. In 1981, after the end of the reorganization, there were six middle schools in the Topeka school district. Two were 90 + % white and one was 80-90% white. The highest percentage of minority students was 45.7% (Eisenhower) and the lowest 5.5% (French). By 1985, the relative percentages at some schools had altered by approximately 5%, but the pattern across the district had not changed.[13] The percentage of minority students at the three high schools was 39.8% (Highland Park), 32.5% (Topeka High), and 5.25% (Topeka West) in 1981, and 33.6% (Highland Park), 30.9% (Topeka High), and 7.9% (Topeka West) in 1985.
III.
THE PARTIES
All of the parties to this case have changed. The original plaintiff children have long since left the Topeka school system. The school district has been reorganized, and the State Board of Education came into existence in 1969. These changes have affected the posture of the litigation to some extent. The original named plaintiffs represented black elementary school children and their parents. Current named plaintiffs represent black children throughout the school system and their parents. The school district grew considerably in size as the city of Topeka annexed territory, although the school district's boundaries were fixed about 1960 while the city continued to grow. The district was also renamed Unified School District # 501 as part of a state-wide reorganization of school districts in 1965. 671 F.Supp. at 1292. The State Board of Education is the product of a 1966 state 859 constitutional amendment. Its powers differ *859 considerably from those of its predecessor. Id.; Brief for Individually-Named Defendants Associated with the State Board of Education at 1, 3-4.

IV.
GENERAL PRINCIPLES OF UNITARINESS
Unitariness is a finding of fact reviewed under the clearly erroneous standard.[14] Before we assess the status of school desegregation in Topeka, we set forth the principles that guide our consideration of the unitariness issue.
The district court defined a unitary school system as "one in which the characteristics of the 1954 dual system either do not exist or, if they exist, are not the result of past or present intentional segregative conduct of" the school district. 671 F.Supp. at 1293.[15] These are necessary ingredients in a unitariness determination because once a violation is found, "[t]he Board has ... an affirmative responsibility to see that pupil [and faculty] assignment policies and school construction and abandonment practices `are not used and do not serve to perpetuate or re-establish the dual school system.'" Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 538, 99 S.Ct. 2971, 2979, 61 L.Ed.2d 720 (1979) (Dayton II) (quoting Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 460, 99 S.Ct. 2941, 2948, 61 L.Ed.2d 666 (1979). An additional essential requirement of unitariness, however, is whether "school authorities [have made] every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation." Davis v. Bd. of School Comm'rs, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971); see also Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 26, 91 S.Ct. 1267, 1281, 28 L.Ed.2d 554 (1971).
To determine whether a school district has become unitary, therefore, a court must consider what the school district has done or not done to fulfill its affirmative duty to desegregate, the current effects of those actions or inactions, and the extent to which further desegregation is feasible.[16] After a plaintiff establishes intentional segregation at some point in the past and a current condition of segregation, a defendant then bears the burden of proving that its past acts have eliminated all traces of past intentional segregation to the maximum feasible extent.
A. Current Condition of Segregation
The actual condition of the school district at the time of trial is perhaps the most crucial consideration in a unitariness determination. The plaintiff bears the burden of showing the existence of a current condition of 860 segregation. The case law is decidedly unclear as to the precise meaning of that term.[17] In our view, a plaintiff *860 must prove the existence of racially identifiable schools, broadly defined, to satisfy the burden of showing a current condition of segregation. Racially identifiable schools may be identifiable by student assignment alone, in the case of highly one-race schools, or by a combination of factors where the school is not highly one-race in student assignment.
"What is or is not a segregated school will necessarily depend on the facts of each particular case. In addition to the racial and ethnic composition of a school's student body, other factors, such as the racial and ethnic composition of faculty and staff and the community and administration attitudes toward the school, must be taken into consideration."
Keyes v. School Dist. No. 1, 413 U.S. 189, 196, 93 S.Ct. 2686, 2691, 37 L.Ed.2d 548 (1973).
Although virtual one-race schools "require close scrutiny," they are not always unconstitutional.[18]Swann, 402 U.S. at 26, 91 S.Ct. at 1281. Their existence in a system with a history of de jure segregation, however, establishes a presumption that they exist as the result of discrimination and shifts the burden of proof to the school system. Id. The presence of essentially one-race schools is thus sufficient to satisfy a plaintiff's initial burden of showing a current condition of segregation.
Courts have used various standards to define "one-race schools."[19] Standards may appropriately differ from school district to school district because the percentage of minority students may likewise vary.[20] Whatever the

minority percentage district-wide, however, it is clear that a school with 90 + % students of one race is a predominantly one-race school.[21] Moreover, this is true whether the students at the school in question are white or minority.[22]
Where racial imbalance in student assignment is still extreme in a system that formerly mandated segregation, 861 appellate courts have reversed findings of unitariness *861 without looking to other factors.[23] However, no
particular degree of racial balance is required by the Constitution.[24] A degree of imbalance is likely to be found in any heterogeneous school system. Therefore, the existence of some racial imbalance in schools will often not be conclusive in itself.
Where numbers alone are insufficient to define racially identifiable schools, courts look to demography, geography, and the individual history of particular schools and areas of the city.[25] While a multi-race school cannot be classified as racially identifiable merely by tallying up the race of the students who attend it, such a school may be racially identifiable "simply by reference to the racial composition of teachers and staff, the quality of school buildings and equipment, or the organization of sports activities," among other factors. Swann, 402 U.S. at 18, 91 S.Ct. at 1277.[26] These factors alone can establish a prima facia case of a constitutional violation. Id. Therefore, a plaintiff may prove a school to be racially identifiable by factors that may, but need not, include student assignment.
B. The Parties' Burdens
Once a plaintiff has proven the existence of a current condition of segregation, the school district bears the substantial burden of showing that that condition is not the result of its prior de jure segregation. Under the relevant Supreme Court decisions, mere absence of invidious intent on the part of the school district is not sufficient to satisfy its "heavy burden" of proof; the district's duty is to act affirmatively, not merely to act neutrally.
"[T]he measure of the post-Brown I conduct of a school board under an unsatisfied duty to liquidate a dual system is the effectiveness, not the purpose, of the actions in decreasing or increasing the segregation caused by the dual system. As was clearly established in Keyes and Swann, the Board had to do more than abandon its prior discriminatory purpose. The Board has had an affirmative responsibility to see that pupil assignment policies and school construction and abandonment practices `are not used and do not serve to perpetuate or re-establish the dual school system.'"
Dayton II, 443 U.S. at 538, 99 S.Ct. at 2979 (emphasis added) (citations omitted). See also Swann, 402 U.S. at 26, 91 S.Ct. at 1281 (burden on school board to establish current racial composition of schools not the result of their present or past actions). The school district must show that no causal connection exists between past and present segregation, not merely that it did not intend to cause current segregation. The causal link between prior 862 and current segregation is not snapped by the absence of discriminatory intent alone, or even by a *862 firm commitment to desegregation, where it is not accompanied by action that in fact produces a unified school district. Id.
The dissent clearly has misconstrued the parties' burdens. The emphasis throughout the dissent is on the necessity of plaintiffs proving a current condition of intentional segregation before any burden shifts to the school district. Although the revised dissent has removed a number of its prior references to "intentional" when discussing "current condition of segregation," and contends that it has not misapplied the burden, the tenor of the current version of the dissent belies this assertion. See Dissent at 892 ("In a former de jure system, plaintiffs may establish the prima facie case by proving that there is a current condition of intentional segregation") (emphasis added); id. at 904 ("a plaintiff may satisfy his initial burden of proof by relying upon evidence of `recent and remote intentionally segregative actions' of the school board") (emphasis added); id. at 917 ("This court misses the mark if it is implying that intent is not relevant in this case."); id. at 920 ("intent, whether proven by direct or circumstantial evidence, remains an essential element."); id. at 920-921 ("It is clear that to sustain the presumption, the plaintiffs were required to prove `a current condition of segregation from intentional state

action.'") (emphasis added); id. at 952 ("The requirement of a current condition of segregation resulting from past or present segregative intent (as opposed to segregation resulting from voluntary demographic change), prior to the operation of the presumption, allows a school system to redeem itself.") See also Dowell v. Board of Educ., 890 F.2d 1483, 1519 (10th Cir. 1989) (Baldock, J., dissenting) ("To understand the problems with this court's approach, it is necessary to understand how the burden of proof is allocated before a school district becomes unitary. In a system that was statutorily or officially dual, plaintiffs may establish the prima facie case by proving that there is a current condition of intentional segregation; that the de jure system or its vestiges remain or were reestablished in part of the school system.") (emphasis added).
On the contrary, however, once a school system has been declared unconstitutional because of the existence of de jure segregation, "[u]ntil the ... School System achieves unitary status, official action that has the effect of perpetuating or reestablishing a dual school system violates the defendants' duty to desegregate." Pitts v. Freeman, 755 F.2d 1423, 1427 (11th Cir.1985) (emphasis in original); see also, e.g., Morgan v. Nucci, 831 F.2d 313, 329 (1st Cir.1987) ("[T]he fact that a particular school policy or program may be `racially neutral,' in that it no longer reflects discriminatory animus, does not prove that the effects of prior discrimination have been purged"). Even the dissent in Dayton II recognized that "the affirmative duty renders any discussion of segregative intent after 1954 gratuitous." 443 U.S. at 542-43, 99 S.Ct. at 2982-83.
The dissent falls into this error by viewing this case as one of initial liability. The cases the dissent relies on for its statements about plaintiffs' need to prove intentional segregation are all cases describing a plaintiff's duty to establish de jure segregation in the first instance. See, e.g., Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979) (dissent at 892, 903-904, 911, 917); Keyes (dissent at 892, 903-904, 919, 920-21). This is not such a case. As in Swann, plaintiffs here are alleging that a school system which has already been declared unconstitutional in earlier years has never fulfilled its affirmative duty to eradicate the effects of that segregation. Under these circumstances, plaintiffs need only show that current racial disparities exist, not that such disparities are the result of current intentional segregation on the part of the school board. See Swann, 402 U.S. at 26, 91 S.Ct. at 1281. This is not a liability case in which plaintiffs must prove that the school board has committed unconstitutional acts; that was established in 1954.
863 *863 Where a plaintiff has established segregation in the past and the present, it is "entitled to the presumption that current disparities are causally related to prior segregation, and the burden of proving otherwise rests on the defendants."[27]School Board of the City of Richmond v. Baliles, 829 F.2d 1308, 1311 (4th Cir.1987); see also Dayton II, 443 U.S. at 536, 99 S.Ct. at 2978 (systemwide nature of de jure schools in 1954 "furnished prima facie proof that current segregation ... was caused at least in part by prior intentionally segregative official acts [and] judgment for the plaintiffs was authorized and required absent sufficient countervailing evidence by the defendant school officials."); Keyes, 413 U.S. at 211 n. 17, 93 S.Ct. at 2699 n. 17 (after de jure segregation is established, "the burden becomes the school authorities' to show that the current segregation is in no way the result of those past segregative actions."); Vaughns v. Board of Educ., 758 F.2d 983, 991 (4th Cir.1985) (same). This presumption ensures that subconscious racial discrimination does not perpetuate the denial of equal protection to our nation's school children.[28] A focus on provable intent alone would deny a remedy to too many Americans.
The dissent asserts that under this view of the law, liability in this case would be frozen as of 1954 and "we merely would decree a remedy based upon the failure of the school board to have absolute racial balance at every school and much of this court's opinion ... would be superfluous." Dissent at ___. Of course, liability is not frozen; it just remains until the school board, not the plaintiffs, bears the burden of proving that current racial disparities in the school system are not the result of the prior segregated school system.
Contrary to the district court's apparent conclusion, see 671 F.Supp. at 1297, remoteness in time does not make past intentional acts less intentional. See Dayton II, 443 U.S. at 535-36, 99 S.Ct. at 2977-78; Keyes v. School Dist. No. 1, 413 U.S. 189, 210-11, 93 S.Ct. 2686, 2698-99, 37 L.Ed.2d 548 (1973). The passage of time merely presents an opportunity for a school district to show that the presumptive relationship between the de jure system and the current system is so attenuated that there is no causal connection. See id. at 211, 93 S.Ct. at 2699.
What the school district has done to integrate is crucial in determining whether the causal link between the prior segregation and the current disparities has been severed. The district may carry its burden by showing that it has

acted affirmatively to desegregate. Absent such proof, the court must presume that current segregation is the 864 result of prior intentional state action. A showing that the school district has not promoted segregation and *864
has allowed desegregation to take place where natural forces worked to that end is insufficient.
The ultimate test of what the school district has done is its effectiveness, most significantly its effectiveness in eliminating the separation of white and minority children.[29] While a district is not always required to choose the most desegregative alternative when it selects a particular option,[30] the result of the sum of the choices made by the district must be to desegregate the system to the maximum possible extent.[31] Furthermore, the school district may "not ... take any action that would impede the process of disestablishing the dual system and its effects." Dayton II, 443 U.S. at 538, 99 S.Ct. at 2979.
One choice frequently made by school districts, and the one made in Topeka, is to use a neighborhood school plan as the basis for student assignment. Neighborhood schools are a deeply rooted and valuable part of American education.[32] To the extent that neighborhoods are themselves segregated, however, such plans tend to prolong the existence of segregation in schools.[33] Thus, they must be carefully scrutinized. They are not"per se adequate to meet the remedial responsibilities of local boards." Davis, 402 U.S. at 37, 91 S.Ct. at 1292; see United States v. Board of Educ., Indep. School Dist. No. 1, Tulsa County, 429 F.2d 1253 (10th Cir.1970).[34]
Neighborhood school plans must be both neutrally administered and effective. A plan that is administered in a scrupulously neutral manner but is not effective in producing greater racial balance does not fulfill the affirmative duty to desegregate.[35] It is equally important that a plan's neutrality be more than surface-deep. We have specifically held that when minorities are concentrated in certain areas of the city, neighborhood school plans may be wholly insufficient to fulfill the district's affirmative duty to eliminate the vestiges of segregation. Tulsa County, 429 F.2d at 1258-59. Even when neighborhood school plans hold the promise of being effective, courts must recognize that the school district's choices on such questions as where to locate new schools, which schools to close, how to react to overcrowding or underutilization, and what transfer policy to offer, all have 865 obvious impact on the school *865 attendance boundaries the district can draw under a neighborhood school plan.[36] If these choices are not made with an eye toward desegregation, a neighborhood school plan may "further lock the school system into a mold of separation of races." Swann, 402 U.S. at 21, 91 S.Ct. at 1278. Ultimately, whether the use of a neighborhood school plan in a particular case is consistent with a school district's duty to desegregate turns on whether the "school authorities [have made] every effort to achieve the greatest possible degree of actual desegregation taking into account the practicalities of the situation." Davis, 402 U.S. at 33, 91 S.Ct. at 1290. Contrary to the dissent's suggestion, dissent at 897, a school district which chose a neighborhood school system in 1954 is not insulated from a later contention that neighborhood schools did not result in desegregation.[37] "A school system is not ... automatically desegregated when a constitutionally acceptable plan is adopted and implemented, for the remnants of discrimination are not readily eradicated." Ross v. Houston Indep. Sch. Dist., 699 F.2d 218, 225 (5th Cir.1983).[38]
Actions the school district has not taken are also relevant in considering what the district has done. A school district which has not made use of such classic segregative techniques as gerrymandering, discriminatory transfer policies, and optional attendance zones is more likely to have fulfilled its duty to desegregate than a district that has done so.[39] Similarly, a school district that has made use of the various techniques available to encourage voluntary desegregation is more likely to have fulfilled its duty than one that has not.[40] Such techniques may include, for example, the establishment of magnet schools and vigorous official encouragement of desegregative transfers.
Finally, objective proof of the school district's intent must be considered. How a district lobbies its patrons and government agencies on issues that affect desegregation, whether it seeks and then heeds the desegregation recommendations of others, and the cooperativeness of the district in complying with court orders, for example, bear on the manner in which the district has shaped the current conditions in the school district.[41]

C. Maximum Practicable Desegregation
What more can and should be done, if anything, is the final component in a determination of unitary status.[42] 866 Essentially, *866 a defendant must demonstrate that it has done everything feasible. Courts must assess the
school district's achievements with an eye to the possible and practical, but they must not let longstanding racism blur their ultimate focus on the ideal.[43]
In most unitariness cases, the school district has been implementing a court-approved desegregation plan under active court supervision. The question is usually whether closer adherence to the plan is practical or whether the plan has achieved its objectives.[44] The district court in such cases has been intimately involved with the process of desegregation and is well aware of the obstacles it faces. The court can thus make an informed judgment on the possibilities of further desegregation. Where the school district has complied with the desegregation plan to the best of its ability, and has done what can be done in spite of the obstacles in its way, it is reasonable to conclude that no further desegregation is feasible.[45]
The present case is one of those rare ones in which the unitariness determination is not directly tied to the execution of a particular desegregation plan. In such a case, the consideration of whether further desegregation is practicable must include the obstacles that are likely to stand in its way, and whether they may be circumvented without imperiling students' health or the educational process. See Swann, 402 U.S. at 30-31, 91 S.Ct. at 1282-83. Where there are no significant barriers to desegregation, or such barriers as exist may be overcome without undue hardship, further desegregation is practicable. See id. at 28, 91 S.Ct. at 1282 (mere awkwardness or inconvenience is no barrier to carrying out desegregation plan).
In sum, when a school system was previously de jure, a plaintiff bears the burden of showing that there is a current condition of segregation. It may do so by proving the existence of racially identifiable schools. The school district must then show that such segregation has no causal connection with the prior de jure segregation, and that the district has in fact carried out the maximum desegregation practicable for that district. We now apply these legal principles to Topeka.
V.
THE FINDING OF UNITARINESS
Because Topeka's schools formerly operated under a system of de jure segregation, "[t]he board's continuing obligation ... [has been] `to come forward with a plan that promises realistically to work ... now, ... until it is clear that state-imposed segregation has been completely removed.'" Columbus Board of Educ. v. Penick, 443 U.S. 449, 459, 99 S.Ct. 2941, 2947, 61 L.Ed.2d 666 (1979). Prior to this case, no court had pronounced the Topeka school system unitary; hence, this duty never dissipated. The district court concluded, however, that the effects of de jure segregation have been eliminated in Topeka. On appeal, plaintiffs attack this determination.
A. Burden of Proof
Plaintiffs argue initially that the district court improperly required them to prove intentional discriminatory conduct on the part of the school district over the course of the decades instead of according them the benefit of a presumption that current segregation stems from the prior de jure system. Plaintiffs quote a number of sentences from the district court's opinion as support for their argument that the court placed on them the burden of proof on 867 intent. Brief for Plaintiffs-Appellants at 27.[46] The court itself expressed some confusion *867 as to the proper burden of proof. 671 F.Supp. at 1295. We have considered both these citations and the tenor of the district court's opinion as a whole, and we are convinced that the court focused too greatly on the school district's lack of discriminatory intent. Although the percentage of minority students in Topeka is lower than in other cities involved

in desegregation cases and consequently the statistics alone do not appear as egregious, we are persuaded that this overemphasis on the school district's intent led the court to make the same errors as did the district court in Dayton II. It failed "to apply the appropriate presumption and burden-shifting principles of law." Brinkman v. Gilligan, 583 F.2d 243, 251 (6th Cir.1978), aff'd sub nom. Dayton Board of Education v. Brinkman, 443 U.S. 526, 99 S.Ct. 2971, 61 L.Ed.2d 720 (1979).[47]

The district court made the following findings: that the neighborhood school attendance boundaries drawn in 1955 had the effect of maintaining segregation; that the construction of new schools since that time had the effect of "promot[ing] racial separation"; that the reassignment of students from previous de jure schools to adjacent schools with higher-than-average percentages of minority students had the effect of increasing those percentages; and that the assignment of faculty had the effect of placing minority faculty disproportionately at schools with higher-than-average minority student percentages. 671 F.Supp. at 1300, 1301, 1304-05. It is clear from the court's other findings that the school district's use of space additions, its siting of Topeka West high school, its drawing of attendance boundaries, and its failure to adopt various reorganization plans did not further the process of desegregation. Id. at 1298-1301, 1308-09. Nevertheless, the court's discussion of most of these aspects of Topeka's history ends with the conclusion that because these actions were not taken with the intent to discriminate and were consistent with a "race-neutral" neighborhood school plan, they did not promote segregation.[48] The court evidently believed that if these two criteria, i.e., no intent to discriminate and consistency with a race-neutral neighborhood school plan, were met, the school district's actions would pass constitutional muster. The Supreme Court has made clear, however, that a "race-neutral" neighborhood school policy is not sufficient where it fails to remedy de jure segregation:

"Absent a constitutional violation there would be no basis for judicially ordering assignment of

students on a racial basis. All things being equal, with no history of discrimination, it might well be

desirable to assign pupils to schools nearest their homes. But all things are not equal in a system

that has been deliberately constructed and maintained to enforce racial segregation. The remedy

for such segregation may be administratively awkward, inconvenient, and even bizarre in some

situations and may impose burdens on some; but all awkwardness and inconvenience cannot be

868

avoided in the interim *868 period when remedial adjustments are being made to eliminate the

dual school systems.

"... `Racially neutral' assignment plans proposed by school authorities to a district court may be inadequate; such plans may fail to counteract the continuing effects of past school segregation resulting from discriminatory location of school sites or distortion of school size in order to achieve or maintain an artificial racial separation. When school authorities present a district court with a `loaded game board,' affirmative action in the form of remedial altering of attendance zones is proper to achieve truly non-discriminatory assignments. In short, an assignment plan is not acceptable simply because it appears to be neutral."
Swann, 402 U.S. at 28, 91 S.Ct. at 1282 (emphasis added).[49]

While we agree with the district court's findings that the current school administration is not presently acting with discriminatory intent 0907 indeed, there is evidence that the present school board has some commitment to desegregation 0907 we are persuaded that the court failed adequately to weigh the conduct of the school district for the past thirty years, and the current effects of that conduct. The court erred by limiting the school district's burden merely to showing that it had nondiscriminatory reasons for acting as it did. As thirty years of desegregation law have made clear, the Constitution requires more than ceasing to promote segregation. See part IV supra. "[T]he measure of the post-Brown I conduct of a school board under an unsatisfied duty to liquidate a dual system is the effectiveness, not the purpose, of the actions in decreasing or increasing the segregation caused by the dual system." Dayton II, 443 U.S. at 538, 99 S.Ct. at 2979. A lack of intent to discriminate is therefore insufficient. "In short, [a student] assignment plan is not acceptable simply because it appears to be neutral." Swann, 402 U.S. at 28, 91 S.Ct. at 1282. Mere adherence to a race-neutral but ineffective neighborhood school plan is insufficient. In general, any course of action that fails to provide meaningful assurance of prompt and effective disestablishment of a dual system is unacceptable. Wright v. Council of City of Emporia, 407 U.S. 451, 460, 92 S.Ct. 2196, 2202, 33 L.Ed.2d 51 (1972). The district court did not heed this mandate. While it did

find that the school district had taken some actively desegregative actions, we are convinced that the court's overall conclusion as to unitariness was fatally infected by the inadequacy of the burden of proof standard to which it held the school district.
B. The Evidence
In order to assess the district court's finding of unitariness under the appropriate burden of proof and the general principles we have outlined, we turn to a more specific review of the record. As a general matter, it is important to 869 note that much of the record evidence consists of statistics and other undisputed facts.[50] Our differences *869 with the district court lie mainly in how the essentially undisputed facts are assessed in light of the school district's mandate to dismantle the segregated school system. We believe that the district court's finding of unitariness is flawed by the undue deference it gave to the school district's neighborhood school policy and by the court's failure to give proper weight to its own findings that certain actions and omissions by the school district had a segregative effect.[51]Cf. Diaz v. San Jose Unified School Dist., 733 F.2d 660, 674 (9th Cir.1984) (en banc) ("In making its determination in respect to the Board's intent, the district court erred in failing to give weight to the cumulative impact of the evidence"; district court's findings that defendants acted without segregative intent held clearly erroneous).
1. Current Condition of Segregation in Topeka
The district court found that "there are disparities in the racial makeup of various schools' enrollments," and that "[p]laintiffs have demonstrated that in general there are a greater than average number of minority faculty and staff in schools with a greater than average number of minority students." 671 F.Supp. at 1295, 1304. Like most courts, however, the district court did not discuss separately the issues of current segregation and the causal connection between that segregation and the prior de jure segregation.
As we have pointed out, the simplest and most compelling evidence of segregation is the presence of predominantly one-race schools. In a system such as Topeka's, however, in which the minority student population is relatively small, there may be a number of primarily white schools even though minority students are spread through a significant number of other schools. In such a system, it is the concentration of minority students that is usually the hallmark of discrimination.[52] Because the significance of mostly white schools is therefore not necessarily as great in a mostly white system as it would be in a system with a heavy minority population, we focus on the broader form of racial identifiability discussed in part IV A above. In support of their argument that there is currently segregation in Topeka, plaintiffs point primarily to student assignment, and faculty and staff assignment.[53] We consider each in turn, and then together.
a. Student Assignment
Each of the experts who testified at trial used a different standard for determining whether a school was racially identifiable in student assignment. Plaintiffs' main experts, Mr. Lamson and Dr. Foster, each used standards that 870 took the percentage of black or minority students actually enrolled in the elementary or secondary schools *870 (26% in 1985), and then added and subtracted some number to obtain a range within which they did not consider schools to be racially identifiable on the basis of student assignment alone. Their methods differ to some extent, but for 1985 either method leads to a range of 11-41% (26% plus or minus 15%).[54] The school district's primary expert on this issue, Dr. Armor, used an absolute rather than a relative standard. In his view, desegregated schools should optimally have 20-50% minority students, regardless of the percentage of minority students in the system. Dr. Armor also allowed a variance, which resulted in a range of acceptability of 10-60%.[55]
As plaintiffs point out, under any of these methods there are schools in Topeka that are racially identifiable by student assignment. Even under the most generous of these numerical standards, proposed by the school

board's expert, there are six elementary and three secondary schools that are racially identifiable by student assignment.
Notwithstanding the dissent's view that the statistics regarding the percentages of minorities in the racially overbalanced schools do not add up to a current condition of segregation, we believe the figures speak for themselves. See supra at 856-58. In this connection, the charts in the dissent showing the racial inventories over the years at Belvoir, Hudson, Highland Park North, Lafayette, Quinton Heights, and Lowman Hill speak more eloquently about the current condition of segregation in Topeka than words ever could. See dissent at 936 n. 43; 938 n. 44; 939 n. 45; 939-40 n. 46; 941-42 n. 47; 946 n. 51.
b. Faculty and Staff Assignment
To determine racial identifiability by faculty/staff assignment, plaintiffs again used a standard based on the actual percentage of minority employees and a range of a few percentage points above and below that number. The school district contested the accuracy of plaintiffs' standard but presented no alternative one. We do not adopt plaintiffs' standard, but instead evaluate the data on its face.[56]
In 1985, the percentage of minority faculty/staff in the Topeka school system was 11.2% for the elementary 871 schools and 12.65% for the secondary schools. In the *871 elementary schools, the percentage of minority
faculty/staff at individual schools ranged from 0% to 33.3%. Nine schools had less than 5% minority faculty/staff, and two had more than 25%.[57] In the secondary schools, the percentage ranged from 2.5% to 24.7%. One school had less than 5% minority faculty/staff, an additional three schools had less than 10%, and one had more than 20%.[58]
Faculty/staff data have been kept only since 1973 and, except for 1981, that data does not distinguish between faculty and staff. Rec., ex. vol. IV, at 263-68. Faculty/staff includes managerial personnel at both the school and district level, teacher aides, clerical/secretarial employees, skilled and technical employees, and service workers, 872 as well as teachers and other professional staff. The distinction between faculty *872 and staff is particularly relevant because the percentage of minority employees has always been lower than the minority student population, and has fallen steadily at the elementary level over the period such data was kept. Moreover, minorities are represented more heavily in staff positions than in faculty positions. In 1985, for example, districtwide statistics showed that 11.3% of elementary teachers and 8.0% of secondary teachers were minorities, while 19% of teacher aides and 20% of service workers were minorities. Rec., vol. IV, at 268. Any one faculty/staff person listed at any one school is thus more likely to be a teacher aide or service worker than a teacher.
We recognize that the small number of faculty and staff at any one school means that the presence or absence of one minority employee may have a considerable effect on the school's minority percentage. Nevertheless, we see no obviously neutral reason why McClure elementary school has no minority employees among its 25 faculty/staff and Topeka West high school has 3 among 120, while Avondale East elementary school has 10 minority faculty/staff out of a total of 31 employees and Robinson middle school has 12 out of 49.
c. Factors considered together
Because faculty/staff assignment is largely within the control of the school district, it is a potent tool for demonstrating that the district does or does not itself identify certain schools as white or minority. It also provides an opportunity for undoing some of the harm of segregated student assignments, because both white and minority students may benefit from the presence of minority role models. See Washington v. Seattle School District, No. 1, 458 U.S. 457, 472, 102 S.Ct. 3187, 3196, 73 L.Ed.2d 896 (1982) ("white as well as Negro children benefit from exposure to ethnic and racial diversity in the classroom"). Conversely, if the district disproportionately assigns minority faculty/staff to those schools with the highest percentages of minority students, the district is in effect reinforcing the identification of particular schools as white or minority. This practice of disproportionate assignments also reinforces the irrational notion that minority teachers are inferior and not fit to teach white children.

In Topeka, although the correlation is not completely uniform, see 671 F.Supp. at 1305, there is a clear pattern of assigning minority faculty/staff in a manner that reflects minority student assignment. This correlation is fatal to the school district's effort to show a lack of current segregation. Both student assignment and faculty/staff assignment can be expected to vary from school to school, the former because of population distribution, and the latter, to a lesser extent, because of differing teacher credentials. When they vary together, as they do in Topeka, leading to schools that are noticeably more white or more minority in both students and faculty, it is difficult to posit a neutral explanation.[59] The school district has not attempted to provide one.
873 *873 Moreover, when we look beyond the numbers, we find that the schools that are marked as white or minority by their students and faculty/staff are also so marked by their geography, the residential population in their attendance areas, and by their history. Of the six racially identifiable elementary schools detected by Dr. Armor's method, five are now and always have been attended almost exclusively by white students. They are located on the western and northwestern edges of the school district, areas with mostly white populations.[60] The same is true of the three secondary schools. See infra part V B(2)(c)(vii). The one remaining elementary school, Belvoir, is located on the eastern edge of the school district. The area has long been inhabited by a significant minority population, and the school's student population is now and has been for over twenty years more than half minority. See infra part V B(2)(c)(i). Finally, the correlation between student assignment and faculty/staff assignment is not a one-year fluke. The same correlation has existed throughout the course of this litigation. See infra part V B(2)(b)(ii). Considering all of these factors together, there is sufficient evidence to support plaintiffs' contention that there is a current condition of segregation in Topeka.[61]
874 *874 2. The Causal Link Between De jure Segregation and the Current Condition of Segregation
Brown I established that the Topeka school system was one of de jure segregation. Because there is a current condition of segregation, we turn our attention to the causal link between these two conditions of segregation, which must be assessed in light of the burden and factors set out in part IV B, supra. We are convinced that the school district failed to meet its burden of showing the absence of this link. This failure, which the district court did not see because it failed to impose on defendants the proper burden of proof, is the key to our reversal.
Timing is central to an assessment of the Topeka school district's actions. After what was described as a "good faith" beginning, Brown, 139 F.Supp. at 470, the course the school district followed in the late 1950s and early 1960s may fairly be characterized as segregative. The decade from 1956 to 1966 is important because it established a framework from which the school district subsequently deviated very little.[62] A period of quiescence then followed, during which the system was simply administered as it stood. It was not until HEW threatened to withhold federal funds in the mid-1970s that the school district undertook some positive action to desegregate its schools. After that brief flurry of action, the school district again turned its attention elsewhere, but to its good fortune the oft-maligned forces of demography began to work in its favor. Two things are apparent from the record. First, Topeka has largely acted as if it had fulfilled its duty to desegregate at the conclusion of the four-step plan implemented in the 1950s. Second, although Topeka's schools have in fact become less segregated in the last decade, this lessening of segregation is due in part to forces beyond the control of the school district. Moreover, those desegregative actions which the school board did undertake were primarily the result of pressure from the federal government, or were instituted after this lawsuit was filed.[63] Although its record is better than that of many other school districts, Topeka has engaged in voluntary desegregation with little enthusiasm.
a. The general pattern in each decade

i. The mid-50s to mid-60s
This period was one of significant change in the Topeka school district. Most notably, the district expanded greatly with several city-imposed annexations at the end of the 1950s, the beginning of a spurt in population growth and shift to the newly annexed areas, and the school district's consequent opening of new schools in this outer white part of Topeka. As the white population moved outwards, the inner city population became increasingly heavily minority, and inner city schools were closed.
The mid-60s found the Topeka school system still heavily segregated. While the numeric polarization between 875 schools had *875 decreased to some extent systemwide,[64] and minority students were somewhat less
concentrated,[65] the number of schools serving primarily white children had increased. Geographic polarization also increased, as a result of the building of so many primarily white schools on the outer edges of the district. Plaintiffs introduced evidence tending to show that the school district's use of portable classrooms and optional attendance zones served to maintain segregation by concentrating students of one race at certain schools. The school district's expert, Dr. Clark, conceded that his study of changes in attendance zone population because of changed attendance boundaries led him to conclude that one such boundary change might have had segregative effects not explainable solely by demographic shifts.[66]
We have no doubt that during this period the school district in fact maintained and perhaps promoted a segregated system by current standards. Moreover, the system that existed after the wave of school openings and closings ended, i.e., the location of schools and the race of their students, formed the basis for the current elementary system. Therefore, while the school district should not be judged primarily by actions now twenty or more years in the past, neither can those actions be ignored.
ii. Mid-60s to Mid-70s
This period was one of quiescence in the school district. Enrollment in the Topeka school system peaked in 1969, substantially ending the need for new school buildings. Outer Topeka continued to grow in white population, particularly in the western part of the city. Minority population began to spread out of its highly concentrated central areas into eastern Topeka.
The only significant change in the school system at the end of this period was that the number of virtually allwhite schools dropped. At the elementary level, 19 out of a total of 35 elementary schools were virtually one-race in 1966; 13 out of a total of 34 were virtually one-race in 1974.[67] The change at the secondary level was even less: from 6 out of 14 schools in 1966, to 5 out of 15 schools in 1974. This change took place primarily in schools on the outskirts of the southeastern part of Topeka, the area into which minorities were spreading. The school district's conduct during this period can thus be summarized as letting demographic forces work without interference or encouragement. This also means that schools already heavily minority were allowed to increase in minority population.[68] It is apparent that while Topeka did not promote a segregated school system during this period, it maintained the system then in effect notwithstanding its affirmative duty to eliminate segregated schools.
iii. Mid-70s to the present
In 1974, the HEW compliance action began the third phase of the Topeka school system since Brown I. At the 876 elementary level, HEW cited unequal facilities for minority and white children as well as "student *876 racial
compositions not consonant with a unitary plan." Five elementary schools were specifically listed as having "substantially disproportionate minority student compositions clearly the result of a former dual pattern of operation." At the secondary level, HEW found that the junior high schools attended by most minority students were inferior in facilities to those schools attended largely by white students. In addition, the district's transfer plan was criticized.[69] The Board denied that the district was in noncompliance and obtained an injunction against

further HEW administrative proceedings. Nevertheless, the Board agreed to take "administrative steps to assure a more perfect unitary school district."[70] It developed and implemented two plans largely approved by HEW.
These plans had some success. At the end of the reorganization, there were no 90 + % minority elementary schools, the attendance boundaries of two 90 + % white schools had been redrawn so that they were no longer one-race, and a third one-race white school had been closed. At the secondary level, two heavily minority and one primarily white junior high school had been closed, although the minority population of one other junior high school had risen significantly as a result of the reorganization. The school district's desegregation indices for elementary schools dropped significantly between 1975 and 1981.[71]
Some of this decline, however, was the result of the movement of minorities into the western part of the school district. During the same six-year period, three additional elementary schools rose above the 10% minority level solely because of this demographic change.[72] This movement has continued. In 1985, two additional elementary schools were just barely no longer one-race for that reason.[73]
The defendants' experts, Dr. Clark, see, e.g., rec., vol. XI, at 2338-39, and Dr. Armour, see, e.g., rec., vol. XIII, at 2579, the district court, see 671 F.Supp. at 1302-03, 1310, and the dissent, see, e.g., dissent at 937, 938, 939, 941, all mistakenly believe that the changing demographics which resulted in unfavorable racial balances at various schools excuses the school board from achieving more acceptable racial balances. This view is clearly wrong where, as here, the school system is under an affirmative duty to dismantle a dual school system. "Until a unitary system is created, a school system is not absolved from this duty by reason of demographic changes." Vaughns v. Board of Educ., 758 F.2d at 988; see also, Lee v. Macon County Bd. of Educ., 616 F.2d 805, 809-10 (5th Cir.1980); cf. Tasby v. Wright, 713 F.2d at 91 n. 3, 93 (school districts' white population was 58.2% when lawsuit filed in 1970 and dropped to 29.53% by 1981; school district not yet unitary). It is only
"[w]hen state officials have not only made good-faith efforts to eliminate the vestiges of segregation, but have actually achieved a school system clean of every residue of past official discrimination, [that] immutable geographic factors and post-desegregation demographic changes that prevent the homogenation of all student bodies do not bar judicial recognition that the school system is unitary."
Ross v. Houston Indep. Sch. Dist., 699 F.2d at 225. The school district's excuse for the racial imbalance which exists today in Topeka's schools is that shifting residential patterns caused the problem. That is an unacceptable 877 excuse when the school *877 district has never fully dismantled the effects of the prior de jure segregation.
Other changes that took place in Topeka from the mid-70s to the date of trial are as follows: elections to the Board were changed in 1976 to ensure that all parts of the city were fairly represented; the Board has now, and has had for some time, significant minority representation; in 1981, the district abandoned a slightly segregative majority-to-minority transfer policy for a transfer policy that is slightly desegregative; in 1984, while this trial was pending, a black superintendent was appointed; and, five days before the beginning of trial, the district adopted an explicit policy against discrimination in faculty and staff assignment.[74] These changes are deliberate and voluntary actions on the part of the school district, and constitute evidence that the district is, as it claims, now committed to desegregation.[75]
There is no doubt that the Topeka school system has improved dramatically in the last ten years as far as desegregation is concerned. However, the system was equally undoubtedly in need of such improvement. The question now is whether these changes broke the causal link between the system that existed prior to them and the current system. Based on our review of the record, we have a definite and firm conviction that they did not. Approximately one quarter of Topeka's minority elementary students still attend three schools more than 50% minority, two of which have fallen into this category since at least 1966. One-race white schools have existed throughout the relevant period; many remain, and those that are no longer within the 90 + % white range are still heavily white schools. Most of the reorganization took place in the center of the school district; the schools on the periphery 0907 the ones most clearly marked as minority or white schools 0907 were largely unaffected. The distribution of faculty/staff has improved, but in 1985 there was still one school with no minority faculty/staff and eight schools with only one full- or part-time minority faculty/staff person, who may or may not be a teacher or other

professional, and these schools are those same schools that have lacked minority faculty/staff since the 1960s. This is a system improved, but it is still the same system.
b. Individual Factors
Green v. County School Board, 391 U.S. 430, 435, 88 S.Ct. 1689, 1693, 20 L.Ed.2d 716 (1968), identified faculty, staff transportation, extracurricular affairs, and facilities as facets of school operations that must be considered in determining racial identifiability of schools. Swann added student attendance, school siting, opening and closing, and the drawing of attendance boundaries as factors to be weighed. Swann, 402 U.S. at 25-29, 91 S.Ct. at 1280-83. The district court made detailed findings as to most of these. We discuss below those factors that most clearly demonstrate the continuing causal link between past and present segregation.
i. Student assignment over time
We begin by considering the subsequent history of the schools in existence at the time of Brown II. No real pattern emerges. Seventeen elementary schools have more or less maintained the same racial identity for the last twenty years, while nine have changed. For the most part, the major shifts in student attendance mandated 878 by the school district have had relatively little effect, although there has been some *878 improvement in the last ten years.[76] Nevertheless, the record convinces us that the causal connection between the Topeka school system in 1955 and the same system in 1985 has not been broken. The school district has unquestionably had the opportunity to draw up and execute a scheme designed to lead to comprehensive desegregation. Moreover, Topeka does not have the kind of geographical barriers that have sometimes frustrated desegration plans.[77] Its minority population is spread over half the city, not concentrated in hard-to-reach enclaves.[78] It has altered the attendance boundaries of almost every school and closed many of them; it has in place a slightly desegregative transfer plan that potentially could be significant; and it has apparently faced little or no racially-motivated opposition from the community.[79]Nonetheless, there is, we repeat, no pattern to the changes over the years. There should have been one. We simply see no evidence that Topeka dedicated itself to desegregation prior to the reopening of this case.[80] Although former members of the Board testified that they did not vote for plans with segregative effects, they did not testify that they regularly took desegregation concerns into account.[81] The reaction of at least one Board member to the white flight of the 1950s and 1960s was "What could we do? We can't make people not move, no way."[82] After hearing the testimony of the Board members, the district court commented, "I am not interested in just any intentional acts that would hinder integration. I am also wondering if there is any action taken by this school board and past school boards to promote that integration, rather than hinder.... [A]re we going to get to this ...?" Rec., vol. XII, at 2534. This perceptive question focused on precisely what is missing from the school district's evidence. By no stretch of imagination can the school district's conduct be characterized as acting "with all deliberate speed" to "convert to a unitary system in which racial discrimination would be eliminated root and branch."[83]
We do not ignore the changes made to the school system in the late 1970s. In our view, however, the effect of these changes was to make a system that was highly segregated as to student assignment into a system that is still segregated, although somewhat less so.
879 *879 ii. Faculty/staff assignment over time
Plaintiffs do not dispute the district court's finding that the hiring of minority faculty and staff is not now discriminatory. 671 F.Supp. at 1304. They do challenge the court's conclusion with respect to the assignment of faculty and staff. They point out that the court in fact found that the assignment of faculty/staff is disproportionate, and they argue that this disproportion, and its consistency over time, is "one of the classic indices of a segregated school system." Brief for Plaintiffs-Appellants at 38. They criticize the district court for having unduly minimized the import of this evidence of segregation.

For example, while it is true that all of the district's schools have been within 10% of the average percentage minority faculty/staff at least once in the last ten years, 671 F.Supp. at 1305, that statement is misleading considering that the percentage of minority faculty/staff in the system as a whole has ranged only from 9.9% to 16% in the last ten years at the elementary level and is currently about 11%. Thus, in 1975, when the average percentage was 9.9%, schools with no minority faculty or staff were still technically within 10% of the average. The 10% once-in-ten-years standard includes both McEachron, which had no minority faculty/staff for nine of the 13 years for which such statistics have been kept and in the last three years has had only one minority faculty/ staff member out of approximately 25, and Lowman Hill, which has never had less than 15% and has once had more than 30% minority faculty/staff during the same time period. Furthermore, while it is true, as the district court noted, that the percentage of minority faculty/staff assignment has not invariably tracked the percentage of minority students, there is nevertheless a distinct pattern of correlation. McClure, for example, which has had more than 5% minority students only in 1979 and 1985, has had no minority faculty/staff since 1979, while Avondale East, which has generally had minority student percentages in the 30s and 40s has also generally had minority faculty/staff percentages in the 20s and 30s. Finally, because our data does not distinguish between faculty and staff, and because minority employees are more heavily represented as staff than as faculty, it is quite possible that the one minority faculty/staff person at McEachron, for instance, is a janitorial staff person or other service worker rather than a teacher or other professional role model.
The long-standing pattern of imbalances coupled with the tracking of student assignment percentages is strong evidence of a dual system because, as pointed out above, faculty/staff assignment is far less difficult to adjust than a factor such as student assignment. While the ratio of minority faculty/staff in schools with different levels of minority students has improved over the twelve years that records have been kept, that improvement alone does not alter the pattern. It merely makes it less dramatic.
There is one area in which the Topeka school system is clearly desegregated. Minorities are well-represented, indeed statistically over-represented, at the managerial level. Several principals are minorities, as is the current superintendent. This is both laudable in itself and an indication that whatever bias lingers in the assignment of faculty/staff is not deliberate. Nevertheless, although there has been improvement in this area, racial disparity does in fact linger because the school district has not consciously addressed the problem.[84] Inertia has thus led to the maintenance, albeit in less striking form, of a system that has kept white faculty at primarily white schools and minority faculty at predominantly minority schools.
880 *880 iii. Attendance boundaries and how (not) changed
Attendance boundaries determine the neighborhoods from which neighborhood schools draw their students. They can be used as an important tool in either imposing or undoing segregation under an ostensibly raceneutral neighborhood school policy. We do not disagree with the district court's finding that attendance boundaries have not been drawn in recent years with racial animus. In the past, however, the school district drew boundaries with significantly segregative effects, although for the most part it avoided obvious gerrymandering. Many of the schools affected by segregative boundary changes were subsequently closed, and other schools lost their status as predominantly minority schools bordered by schools with much lower percentages of minority students when minorities moved into the residential areas of the bordering schools.
A number of existing schools do have peculiar-looking attendance boundaries. Randolph has an arm jutting out to the east. Stout and Quinton Heights both include areas to the north and east some distance away from the school building. In the case of Randolph and Stout, the extensions have a desegregative effect. The reverse is true of Quinton Heights' current boundaries. See infra Part V B(2)(c)(v). As far as the record reflects, the current boundaries of Randolph and Stout are the only examples that Topeka has manipulated attendance boundaries in order to desegregate. Again, when it altered attendance boundaries the school board failed to use the opportunity in most instances to further desegregation, despite its affirmative duty to do so.
As the district court acknowledged, the most serious example of segregative attendance boundaries is Lowman Hill. Lowman Hill's attendance area is a more or less square area with the school located in the center. Plaintiffs

point out that this area includes, and has included for the last 25 years, two areas of heavy minority population. These areas are now part of a general central Topeka minority population, but were relatively isolated when Lowman Hill's boundaries were first drawn to include them. Within the last ten years, three elementary schools bordering the Lowman Hill area, one with a minority student percentage significantly lower than Lowman Hill's, have closed.[85] The closings did not affect the minority student percentage at Lowman Hill. It remains a school with a heavy minority percentage bordered by schools with much lower minority percentages. It also remains the school whose attendance boundaries include the only significant group of minority population in the northwestern quarter of the school district. See infra Part VI B(2)(c)(vi).
The history of Lafayette is similar although not as extreme. The border between Lafayette and State Street, the school to Lafayette's north, has functioned as the boundary between the mostly white area served by State Street and the school to its north and the heavily minority area served by Lafayette and the schools to its south and southwest. Lafayette has long had twice the minority population of State Street; thus, since 1966, Lafayette's minority population has ranged from 52% to 69% while State Street's has ranged from 27% to 34%.[86]See infra Part VI B(2)(c)(iv).
While the boundaries of Loman Hill and Lafayette are consistent with a neighborhood school policy, as held by the district court, the original decisions to draw them to include the black population of the area had a segregative effect which the school district has never undone. The school district may not draw segregative attendance boundaries, maintain them for decades, and then take shelter behind the neutrality of its recent inaction. See Swann, 402 U.S. at 21, 91 S.Ct. at 1278.
881 *881 iv. Location of new schools
All of the elementary schools and all but one of the secondary schools opened by the school district since Brown II were built in the white outer part of the district. Robinson middle school, which serves the central part of Topeka, is the sole exception. Furthermore, many of these schools were built near to the edges of the district. Plaintiffs criticize both the location of these schools and the fact that they opened at all. With respect to the location, they argue that Topeka deliberately placed new schools as far as possible from minority residential areas in order to polarize the district into white outer and minority inner schools. With respect to the new schools themselves, they argue that Topeka should have taken advantage of the underutilized inner schools; that is, that Topeka should have voluntarily bused white children from outer Topeka to the inner city schools instead of putting up new buildings.
Almost all of the building in question took place in the late 1950s and early 1960s, before the Supreme Court made clear that prior de jure school districts must do more than operate a neutral system. Green, 391 U.S. 430, 88 S.Ct. 1689. Moreover, the city was annexing new territory during that time, a matter beyond the control of the school district, and it is not entirely unreasonable for the district to build schools "where the children are." Nevertheless, the erection of so many schools devoted to educating white children had a significant segregative effect on the district. See infra Part V B(2)(a)(i). While the building of new schools to accommodate an influx of white children arguably had a legitimate basis at the time, the school district did nothing to diminish the segregative effect of those schools, even after it became clear that school districts under an unfulfilled duty to desegregate must do more than operate a facially neutral neighborhood school system. As we have said, neighborhood school plans are permissible if they are effective in actually reducing segregation. School openings and locations are a crucial variable in such plans. Swann, 402 U.S. at 20-21, 91 S.Ct. at 1278-79. In Topeka, school openings under the neighborhood school plan in fact worked to increase segregation. A school district conscious of its constitutional duty would have attempted to counteract that effect. See Diaz v. San Jose Unified School District, 733 F.2d 660, 667-69 (9th Cir.1984) (en banc), cert. denied, 471 U.S. 1065, 105 S.Ct. 2140, 85 L.Ed.2d 497 (1985). Topeka did nothing.

v. School closings
In contrast to school openings, the majority of school closings took place in the central and middle parts of Topeka. Like school openings, this pattern was dictated largely by the population shift to the outer part of the school district. Plaintiffs do not contend that schools were closed for any other reason, or that the impact of the closings was borne primarily by minority students. They focus instead on the effect of school closings, primarily on the opportunity closings provided for more equitably distributing students to other schools. They contend that school closings of highly segregated schools were not desegregative in practice because the school district simply reassigned the students at those schools en masse to a nearby school which then took over the segregated status of the school closed. The evidence supports this contention for the 1950s and 1960s. Although most of the receiving schools remained schools with a majority of white students, plaintiffs argue that these reassignments served to identify the schools to which the school district would subsequently channel minority students. School closings in the 1970s and beyond had less segregated effects. In this decade, the effects of closings have been mixed. A few school closings were desegregative. These later closings have not completely undone the effect of the earlier closings, however. On the whole, most school closings in the 1970s cannot be said to be either segregative or desegregative.
In sum, although the hiring of minority faculty and staff became nondiscriminatory, and even included significant 882 representation of minorities in management, the district nevertheless maintained racial imbalance *882 in the
assignment of faculty and staff. In addition, the location of new schools intensified the system's dual nature. The drawing of attendance boundaries and other means of reassigning students were rarely used to desegregate. The closing of schools is the most significant desegregative device Topeka utilized. Even here, it is only in a few cases that a closing can unqualifiedly be characterized as desegregative. As we stated earlier, Topeka notably failed to focus its efforts on the complete eradication of the effects of prior segregation.
c. Individual schools
The dissent spends a great deal of time attacking our analyses of individual schools. The main point of that attack is that the increasing minority percentages for these schools resulted from demographics, not from school board actions. As we have previously stated, however, a school district is not absolved by demographics from its affirmative duty to desegregate before it achieves unitariness. See supra at 876-77.
Plaintiffs describe the history of the school district as one of targeting certain schools as minority. According to plaintiffs, while the identity of those schools shifts as population moves, the district as a whole is always polarized into schools with clear racial identities. We therefore consider what the district did and did not do with respect to individual schools.
i. Belvoir elementary school
Belvoir is and has been since the 1960s a school with one of the highest minority populations in the district. The school was annexed in the late 1950s and lies on the eastern edge of the current district boundary. Two federal housing projects were built within its attendance area in 1963 and 1965. Since 1966, its student population has never been less than 50% minority.[87] It is located in an area of minority population that was bordered by white populations to the north and south and a minority population to the west when the school was annexed. The bordering areas are now all areas with substantial minority populations.
Belvoir's boundaries were once altered to take in part of the attendance areas of a school that was closed. That closing did have a modest desegregative effect at Belvoir, but it did not change Belvoir's status as the school with the highest minority percentage in the system. Although it is no longer surrounded by schools with markedly lower minority percentages, it remains an east-side minority school as opposed to the west-side white schools. It cannot be said that the neighborhood school plan has been effective in desegregating Belvoir.

ii. Hudson elementary school
The school district built Hudson in 1963 in newly annexed territory. It is on the southeastern edge of the district and opened as a primarily white school. While the passage of time has dissipated Hudson's identity as a white school, this change is due solely to the spread of minorities into its attendance area, not to any action by the school district. The school was 46.55% minority in 1985-76. Rec., ex. vol. IV at 171.
iii. Highland Park North elementary school
Highland Park North was annexed to the school district in the late 1950s. Its percentage of minority students has risen significantly over the years: 21.6% in 1966, 42.1% in 1975, and 57.9% in 1985. This rise was paralleled by a shift in the surrounding residential population from primarily white to heavily minority. This shift is characteristic of the eastern part of the city, where Highland Park North is located. The only significant action the school district took with respect to Highland Park North was to assign it Parkdale students when that school closed. This reassignment increased Highland Park North's minority percentage at a time when it was already high.
883 *883 iv. Lafayette elementary school
Lafayette was a white school in the Topeka school system at the time of Brown I. It was 13.7% black at the end of the four-step plan in 1956. Federally subsidized housing projects were built in Lafayette's area in 1961 and 1962. By 1966, the school was 54.5% minority (26.1% black). The school was then a transition school between Parkdale elementary school to the southwest, with 85% minority students, and Sumner, State Street, and Rice elementary schools to the north and east, with 12.3%, 27.5% and 3% minority students, respectively. Belvoir, to the south, had approximately the same percentage of minority students. Lafayette has remained 55-65% minority (25-50% black). In 1985, Lafayette was 56.8% minority (41.4% black). It remains a transition school between schools with higher minority percentages to the south and lower percentages to the north and west.
The closing of three schools affected Lafayette's boundaries. We have insufficient information to evaluate one closing, in the 1960s, and the other two closings had negligible effects on Lafayette's minority percentages. Under its neighborhood school plan, the school district simply maintained Lafayette as a school with disproportionate minority percentages.
v. Quinton Heights elementary school
Quinton Heights was a white school at the central southern part of the school district in the 1950s. At the end of the four-step desegregation plan it was 7.3% black. In 1959, Pierce, an annexed black school, and in 1964, Van Buren, a formerly all-white school, were closed and some of their students sent to Quinton Heights. Quinton Heights' attendance boundary was extended to the north as a result.[88] By 1966, its minority student percentage was 36.4%. It was bordered by heavily minority Monroe elementary school to the northeast and otherwise by primarily white schools, including schools to the south annexed in the late 1950s.
Plaintiffs characterize the reassignments in the 1960s as part of a process of focusing Quinton Heights as a school for black students. In 1966, Quinton Heights' minority student percentage was seventh highest out of thirty-five elementary schools, and its minority population bordered two schools with much lower minority percentages (Central Park, with 15.5%, and Polk, with 11.5%). Indeed, on the maps available to us, it is quite noticeable that Polk's boundaries in 1970 correspond closely to a patch of white population surrounded by minority population assigned to other schools, including Quinton Heights.[89]
Two adjacent schools were closed during the 1970s. Each time, Quinton Heights' boundary was extended northwards. It is thus clear that Quinton Heights' current boundaries are the result of continued manipulation by the school district. They extend far into minority areas to the north and east of the school building and cross many

natural barriers.[90] Quinton Heights is a "neighborhood" school only in the sense that some of its students do live in the immediate area of the school building. Most do not. Quinton Heights is entirely the product of the school district's actions; as such, the district may not disclaim responsibility for the makeup of the students who attend it.
vi. Lowman Hill elementary school
Lowman Hill was a white school in the pre-Brown Topeka school system. It had 17.4% black students at the end of the four-step plan in 1956. During the next decade a number of small adjustments were made to optional 884 attendance zones around the school. Plaintiffs describe these adjustments as a process of drawing *884 Lowman Hill's boundaries to include as many black and as few white students as possible. In 1959, an all-black school, Buchanan, was closed and its students sent to Lowman Hill. By 1966, Lowman Hill was 49.6% minority. The minority percentage at the five surrounding schools ranged from .2% to 15.6%. It is noticeable on the maps in the record that in 1970 Lowman Hill's boundaries included the only two significant areas of minority population in that part of Topeka.[91]
Lowman Hill's minority student percentage has ranged in the 40s since that time, dipping briefly into the high 30s in the early 1980s. It was not affected in any significant way by the reassignment of students due to the closing of neighboring Clay elementary school in 1975 and Polk in 1979; while its boundaries expanded somewhat, the student population it acquired was apparently of the same makeup as its existing population. Thus, the history of Lowman Hill is that the boundaries drawn in the 1950s and 1960s largely remain, as do their effects. Lowman Hill still has a significantly higher minority student percentage than its neighbors, although the disparity between them is less (in 1985, Lowman Hill was 41.9% minority while its four neighbors ranged from 7.7% to 31.5%). The school appears to have been designed and maintained as a school with a concentration of minority students. At best, it has been neglected in recent decades. See infra Part V B(2)(b)(iii).
vii. Predominantly white schools
Eight elementary schools were at time of trial and have been during the course of this litigation primarily white schools.[92] Even in 1985, only three of these schools crossed the 10% minimum that the school district's expert proposed, and did so only just barely.[93] The schools are in or near the western part of the district. Similarly, at the time of trial two middle schools and one high school 0907 one-third of the secondary school system 0907 were, and had been since they opened, primarily white schools. They too are in the western part of Topeka.
Plaintiffs focus on Topeka West High School as the quintessential example of deliberate channeling of white students to schools in the western part of the school district. The school was opened in 1961 six blocks from the western edge of the school district, the part of the district most distant from centers of minority population. Consequently, it was then and remains now a school with more than 90% white students, while the percentage of minority students at the other two high schools has been higher than average. Little evidence was introduced on the other white schools that has not already been discussed elsewhere. See infra Part V B(2)(b)(iv). To summarize, these schools were either annexed or built by the school district in the late 1950s and early 1960s. They opened as white schools with white faculty/staff and have largely remained so. The school district offered no evidence that it had ever attempted to eliminate these schools' identity as schools for white children.
3. Maximum Practicable Desegregation in Topeka
We look at last away from what has been done and what should have been done to what can still be done. The feasibility of further measures was not a focus of the case, and there was little evidence on the question. The district court explicitly found that "[a]t any time, more could have been done to achieve racial balance in the schools." Other courts that have found school systems to be unitary have specifically found that additional

885 desegregation was impracticable.[94] Similarly, courts have *885 refused to find school systems unitary where greater integration is achievable.[95]
It is apparent from this record that further desegregation in Topeka is not constrained by geographic obstacles as in some other cities.[96] Furthermore, out of the panoply of desegregation tools that have been developed, Topeka at present apparently uses only one: its minimally effective majority-to-minority transfer plan. We have no reason to think that Topeka has exhausted the repertoire available for desegregating schools. For example, it has failed to try magnet schools or to aggressively encourage voluntary transfers to improve racial balance.[97]
Indeed, there is every reason to believe that further desegregation in Topeka is feasible. The present commitment of the school board and district administration, the already widespread distribution of minorities, and the expected continued movement of minorities into western Topeka should make the course of further desegregation relatively smooth.
It was suggested at trial that further desegregation is, in effect, not worth the trouble. Under questioning from counsel for the State Board of Education, plaintiffs' expert Foster admitted that in the 1985 school year the movement of only 265 elementary students, or 3% of all elementary students, and 77 secondary students, or 1.2% of all secondary students, would have been sufficient to bring all of Topeka's schools into plaintiffs' 15 + /% range. Dr. Foster pointed out that this figure was arrived at by simply removing students from schools outside the 15 + /% range, without analyzing where they would go or which students would take their place. The actual movement of students would thus be more complex and burdensome than the numbers suggest. Dr. Foster also pointed out that such an approach would move schools now just beyond the 15% range to just within it, an improvement he did not find greatly desegregative as it would preserve the existence of schools differing by 30% 886 in their minority percentage and thus still marked as minority or *886 white schools.[98] A similar analysis was performed with respect to faculty/staff.[99]
The exercise above is illuminating in a number of respects. First, it indicates again that the desegregation plan which must be developed may not be too burdensome, a circumstance for which all can be thankful. Second, it reminds us of the dangers of focusing on numbers alone. Although numbers are usually the focus of desegregation plans, racial balance in itself is not the goal. The goal is to wipe out the effects of prior segregation. Setting target ranges is one means to that goal. It is clearly not the only one. Furthermore, as we have emphasized, schools are not racially identifiable by student and faculty assignment alone.
The lack of evidence or any attempt to argue that further desegregation is impracticable is perhaps the largest flaw in the school district's case. When the law requires the maximum desegregation reasonably feasible, and evidence suggests that more can be done, unitariness must await the implementation of those further steps. When it can be said that Topeka can do no more to eradicate the effects of past segregation and segregative acts, the Topeka school system may be declared legally unitary.
C. Conclusion on Unitariness
After reviewing the record, we have concluded that there is a current condition of segregation in Topeka. Contrary to the district court, we are convinced that this condition is causally connected to the prior de jure system of segregation. This causal connection for the most part does not stem from active promotion of segregation. Topeka has generally heeded the prohibition against this form of discrimination.
Our basic disagreement with the district court is centered around the fact that the duty to desegregate requires more. What Topeka did not do is actively strive to dismantle the system that existed. It opened and closed schools with little or no thought given to the effect of such actions on segregation, and observed the segregative or desegregative effects of such actions with indifference. Even those school board decisions that had some desegregative effect were not carried out in such a manner as to disestablish the dual system. For example, rather than integrate the former de jure black schools, Topeka gradually closed them. Their students were then reassigned virtually en masse to other schools, which then took on the same minority-school identity.

The shifting distribution of Topekans throughout the city sometimes hindered, sometimes aided, the cause of desegregation, but the school district sought neither to reduce the impact of the former nor to encourage the effects of the latter. It simply administered the system, with due regard for economic efficiency and the quality of education in the district, but without a commitment to undoing the segregated structure of that education. Consequently, it permitted Topeka's schools to fall into three categories: schools that are now and always have been white, schools that are now and long have been heavily minority, and others. As we have noted, the mere existence of racially identifiable schools does not violate the Constitution. Where prior de jure segregation exists, however, we are convinced that permitting white schools and minority schools to remain racially identifiable as such without significant efforts to the contrary is in effect to permit the continuation of a dual system of education. Based on the evidence set out above, we have a definite and firm conviction that the district court erred when it found the Topeka school system to be unitary. Cf. Pitts v. Freeman, 755 F.2d 1423 (11th Cir.1985); Diaz, 733 F.2d 887 660; Adams v. United States, 620 F.2d 1277 (8th Cir.1980) (en banc); Brinkman v. Gilligan, *887 583 F.2d 243 (6th Cir.1978), aff'd sub nom. Dayton Board of Education v. Brinkman, 443 U.S. 526, 99 S.Ct. 2971, 61 L.Ed.2d 720 (1979).
VI.
TITLE VI
Plaintiffs argue that the school district violated both section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and 34 C.F.R. § 100.3(b). Section 601 forbids programs and activities receiving federal funds from discriminating on the basis of race, among other factors,[100] and 34 C.F.R. § 100 contains regulations implementing Title VI. The Topeka school system receives federal funds.
The Supreme Court held in Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), that discrimination under Title VI is to be measured by the constitutional standard of the Equal Protection Clause. Id. at 284-87, 98 S.Ct. at 2745-47. Because we have concluded that Topeka's school system is not unitary under constitutional standards, we necessarily reverse the district court's holding that the school district has not violated Title VI.
VII.
STATE DEFENDANTS
The state of Kansas intervened as a defendant in Brown I to defend the constitutionality of the Kansas law permitting segregation. It was not again actively involved in the litigation of the case until May 1980, when the Governor and members of the State Board of Education were joined as defendants for the purpose of granting injunctive relief.[101] The district court granted summary judgment before trial for the Governor on both the constitutional and Title VI claims. After trial, it held that the State Board of Education was not responsible for the racial conditions in the Topeka school district. We affirm both of these rulings.
The supreme executive power of the state of Kansas is vested in its Governor, who "shall be responsible for the enforcement of the laws of this state." Kan. Const. art. I, § 3. One of the Governor's powers is that of reorganizing state executive agencies. "[C]onstitutionally delegated functions of state officers and state boards" are exempt from this reorganization power. Id. § 6(a). The State Board of Education is such an exempt state board. Id. art. 6, § 2; State ex rel. Miller v. Board of Education, 212 Kan. 482, 511 P.2d 705, 709 (1973). Because the State Board of Education is the Kansas organ of government responsible for education, these provisions limit the Governor's executive power over education to that embodied in the power to enforce the laws of Kansas. Plaintiffs have not suggested that any Kansas law is now implicated in this litigation. The Governor is not vested by the provisions cited above with the power to enforce federal law, and plaintiffs have not shown any other source of such power.

The district court was correct in concluding that the Governor is not able, under state law, to comply with such injunctive relief as may be ordered in this case. It was therefore proper to dismiss him from the case.
The correct disposition of the case against the members of the State Board of Education is more difficult to resolve. Kansas, like many other states, assigns the primary responsibility for the day-to-day management of public schools to local school authorities. See Kan. Const. art. 6, § 5. At the time of Brown I, the Kansas Constitution provided for a Superintendent of Public Instruction with limited authority. In particular, this officer did 888 not have the *888 authority to exercise general supervision of the public schools. Miller, 511 P.2d at 708. Apparently, the only method used by the state to encourage segregation was the permission granted by the law struck down in Brown I for segregation below the high school level. The Kansas legislature promptly repealed this statute in its next full session after Brown I, and has since enacted civil and criminal laws against racial discrimination. See Kan.Stat.Ann. §§ 21-4003, and §§ 44-1001 et. seq. This history is in contrast to the actions of other states that have been held liable for promoting segregation.[102] Moreover, the state was never held expressly liable for the actual segregation in Topeka's schools.
It is not necessary for us to decide whether requiring more of the state at this point would be consistent with the principle that a remedy may be no broader than the scope of the violation found, because plaintiffs have not shown that the State Board of Education has the power to act as they would have it act. The Kansas Constitution provides both for the State Board of Education and for locally elected school boards. The State Board is given the power of "general supervision" of the local boards. Kan. Const. art. 6, §§ 2, 5. The Kansas Supreme Court has defined this power as "something more than to advise but something less than to control." Miller, 511 P.2d at 713. Among the powers of the State Board is accreditation of schools. Plaintiffs argue that the State Board could have withheld accreditation of segregated schools, citing evidence that the Board is empowered to withhold accreditation on this basis.[103] The evidence refers, however, to hypothetical situations such as an official policy of not hiring black teachers or complete segregation of students. This does not establish that the State Board had the power to deny accreditation under the facts of this case. In addition, exhibits in the record show that the State Board was aware that there was actual segregation in some Kansas cities, and drew up a number of proposals to provide advisory assistance to these cities in desegregating.[104] These proposals are consistent with the State Board's argument that its role is primarily advisory in the area of desegregation.
Kansas statutes authorize local school boards to appoint employees to serve at the board's pleasure, set attendance boundaries, open and close schools, and adopt all necessary rules and regulations. Kan.Stat.Ann. §§ 72-8202e, 72-8212, 72-8213. These tools are the primary means of desegregating. No evidence suggests that the State Board exercises control over these tools. Plaintiffs argue that after Brown I some agency of the state had a duty to ensure that desegregation occurred. We are not persuaded that any authority other than the Topeka school district had then or has now the power to desegregate Topeka's schools.
VIII.
CONCLUSION
889 In concluding, we begin by stressing what we do not have in Topeka. We do not *889 have a school system or a community actively resisting desegregation. Nor, on our record, has Topeka ever interposed the kind of obstacles to desegregation found in other cities. In recent times, the school district has won national recognition for its innovative work on its curriculum and has been honored with various awards for the excellence of its schools. In short, the Topeka school district is actively engaged in improving the education of its students.
This active engagement has largely been directed at concerns other than desegregation, however. Once the fourstep plan approved by the district court in the 1950s was implemented, Topeka did not until very recent times, on our record, give serious consideration to the question of whether the duty imposed by Brown II had been fulfilled, save under the urging of HEW. Although that urging led to distinct improvements, for the most part the Topeka school district has exercised a form of benign neglect. The duty imposed by the Constitution, and articulated in numerous cases by the highest court in this land, requires more.

We reverse the finding of the district court that the Topeka school system is legally unitary. We remand the case to the district court for the formation of an appropriate remedy.
BALDOCK, Circuit Judge, dissenting.
It is not by accident that the court begins its opinion in the liability phase of this case with a quote from the plaintiffs' expert, Mr. William Lamson.[1] For in deciding that the U.S.D. 501 school board operates a dual school system with respect to student assignment, the court has relied heavily on the plaintiffs' theory of the case as supported by the testimony of Mr. Lamson. In deciding that the board operates a dual system with respect to faculty assignment, the court has adopted the plaintiffs' theory in large part, but impermissibly has made its own factual findings after an ad hoc evaluation of the evidence. See, e.g., Court's Opinion at 870 ("We do not adopt plaintiffs' standard, but instead evaluate the data on its face.").
In this case, the plaintiffs contended that the school board operated a dual school system as evidenced by: 1) racial identifiability in student and faculty/staff assignment, 2) inferior facilities, equipment, curriculum and instruction at schools with higher black enrollments, 3) lower minority test scores, and 4) survey attitudes indicating that some schools were perceived as white schools and others as minority schools. See generally rec. vol. I, doc. 242 (amended complaint).[2] On the other hand, the defendants contended that the plaintiffs' measures of "racial identifiability" alone, given the historically small percentage of minority students and faculty/ staff did not indicate a current condition of intentional segregation based upon either 1) present discrimination or 2) a failure to eliminate the vestiges of past state-imposed segregation. Defendants suggested that de facto and racially neutral considerations, rather than de jure segregation, explained the assignment of students and faculty/ 890 staff.[3] Defendants *890 also contended that recent school boards were committed to pursuing racial balance in student and faculty/staff assignment, and equal educational opportunity. Finally, defendants relied upon the implementation of two desegregation plans after Brown v. Board of Educ. (Brown I), 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and explained other steps taken to achieve and maintain a unitary system. The district court found in favor of the defendants on all issues and declared the system unitary. Brown v. Board of Educ., 671 F.Supp. 1290 (D.Kan.1987). On appeal, plaintiffs challenge the district court's judgment concerning student and faculty/staff assignment.
If appellate courts were empowered to make findings of fact, perchance the approach of this court on the issues of student and faculty/staff assignment could be justified. But for reasons which the Supreme Court has made clear, we must accept the factual findings of the district court unless they are clearly erroneous. Fed.R.Civ.P. 52 (a); Anderson v. City of Bessemer City, 470 U.S. 564, 573-76, 105 S.Ct. 1504, 1511-13, 84 L.Ed.2d 518 (1985); see also Alexander v. Youngstown Bd. of Educ., 675 F.2d 787, 792-93 (6th Cir.1982). Although this court acknowledges that the district court's finding of unitariness must be upheld unless clearly erroneous, Court's Opinion at 859, the court has failed to give effect to this principle. Instead, this court has duplicated "the role of the district court" and has impermissibly engaged in "an exercise in appellate factfinding." See Jenkins v. Missouri, 807 F.2d 657, 667 (8th Cir.1986) (en banc). This is apparent throughout the court's opinion, but is especially salient in the court's characterization of what really occurred in Topeka during each decade subsequent to Brown I, a characterization which totally ignores the district court's findings and forgets that we do not try cases at the court of appeals. See Court's Opinion at 874-877. The same evidence that the district court found wanting this court accepts. This court is "engaging in an original evaluation of the voluminous and ofttimes contradictory record seeking an ultimate conclusion more satisfactory than that reached by the district court." Jenkins, 807 F.2d at 668.
The court claims that the district court erred because it misunderstood the burden of proof in this desegregation case. Court's Opinion at 854, 866-67. If that is true, why does the court not remand the case to thedistrict court for appropriate findings in accordance with the correct presumption and burden-shifting principles, given that this is very much a record case? See infra note 6; Vaughns v. Board of Educ., 758 F.2d 983, 992 (4th Cir.1985) (court remanded for new findings in light of correct legal principles). Instead, the court makes its own factual findings and remands the case for an appropriate remedy.

Moreover, I do not agree with this court that the district court "failed `to apply the appropriate presumption and burden-shifting principles of law.'" Court's Opinion at 867 (quoting Brinkman v. Gilligan, 583 F.2d 243, 251 (6th Cir.1978), aff'd, Dayton Board of Educ. v. Brinkman (Dayton II), 443 U.S. 526, 99 S.Ct. 2971, 61 L.Ed.2d 720 (1979)). This court compares the district court's action with that of the errant district court in Dayton II. The comparison misses the mark primarily because, as this court points out, Dayton II, like most of "[t]he Supreme Court desegregation cases[,] involved school systems in which the degree of segregation was sufficiently great that the parties did not seriously dispute on appeal that the plaintiffs had satisfied their burden on" ["the existence of a current condition of segregation."]. Court's Opinion at 859-60 n. 17, 859-60. While the "Dayton public schools 891 [were] *891 `highly segregated by race'[.]"[4] Court's Opinion at 859 n. 17 (quoting Dayton II, 443 U.S. at 529, 99 S.Ct. at 2974), this is not so in Topeka. Here, there exists a genuine issue of fact as to whether there is even a current condition of segregation, particularly in the absence of any one-race minority or virtually one-race minority schools in this district. To be sure, there are eight 90% + white schools (ranging from 6.23% to 9.43% minority); however, those schools have steadily increased in minority enrollment over the years, and this is a system in which 31 out of 34 schools are majority white in student assignment. See infra note 18. Of the three schools that are majority-minority in student assignment, the greatest concentration is 61.86% minority. Id. This court's overinclusive approach to racial identifiability leads it to an incorrect finding that there is a current condition of segregation in Topeka.
The court begins by saying that, in a former de jure system, a school is racially identifiable and part of a current condition of segregation if it deviates, plus or minus (+-) 15% or 20% or some other arbitrary amount, from a system-wide average of minority composition. See Court's Opinion at 869-70, 872-73 n. 59, 873; but see Price v. Denison Indep. School Dist., 694 F.2d 334, 360-64 (5th Cir.1982) (statistical racial identifiability not necessarily indicative of liability). Numbers reflecting the racial composition of student and faculty/staff assignment within a school system are absolutely critical in both the liability and the remedial phase of a school desegregation case. However, statistical measures of racial identifiability are measures of racial balance, a valid sociological objective, but not a constitutional command with respect to student assignment. Nevertheless, this court determines that once a plaintiff has shown statistical racial identifiability in a former de jure system, the plaintiff has established a current condition of segregation. Court's Opinion at 859-60, 869-70.
If a school is not racially identifiable as to student assignment by statistical measures, that certainly does not suggest an absence of segregation to this court. Rather one must look to a "broadly defined," Court's Opinion at 859-60, concept of racial identifiability which considers "demography, geography and the individual history of particular schools and areas of the city," in an effort to find liability. Id. at 861. Although the court acknowleges that one-race schools may evolve from "modern urban demography and geography," id. at 860 n. 18, and that "the mere existence of racially identifiable schools does not violate the Constitution," id. at 886, it completely fails to incorporate these observations in its analysis of this system. Nor does it consider other statistical measures relied upon by the district court which support a finding of no current condition of segregation and compliance with the affirmative duty to dismantle the dual system. See id. at 869-72, 876 n. 71. What the court has done is to apply an absolute presumption against the Topeka schools from the outset because of de jure status in 1954. Even if the presumption applies, the court has given no weight to the substantial evidence concerning de facto influences on racial composition in those schools. Although the court ratifies its conclusion concerning a current condition of segregation with descriptive references to geography, residential population and history, there is no attempt to consider causation in light of the substantial demographic testimony offered by defendants. Id. at 873, 876-77.
The district court implicitly recognized, Brown, 671 F.Supp. at 1295, "that once a court has found an unlawful dual school system," School Bd. v. Baliles, 829 F.2d 1308, 1311 (4th Cir.1987), the plaintiffs are "`entitled to the 892 presumption that current disparities are causally related to prior segregation, *892 and the burden of proving otherwise rests on the defendants.'" See Court's Opinion at 863 (quoting Baliles, 829 F.2d at 1311); see also Dayton II, 443 U.S. at 537, 99 S.Ct. at 2979 (1979); Keyes v. School Dist. No. 1, 413 U.S. 189, 210-11, 93 S.Ct. 2686, 2698-99, 37 L.Ed.2d 548 (1973); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 25-26, 91 S.Ct. 1267, 1280-81, 28 L.Ed.2d 554 (1971) (discussing remedy once a violation is established). If the system has achieved unitariness, the presumption ends. Baliles, 829 F.2d at 1311; Riddick v. School Bd., 784 F.2d 521, 543 (4th Cir.1986).

In a former de jure system, plaintiffs may establish the prima facie case by proving that there is a current condition of intentional segregation, that the de jure system or its vestiges remain or were reestablished in part of the school system. Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 464, 467, 99 S.Ct. 2941, 2950, 2951, 61 L.Ed.2d 666 (1979); Keyes, 413 U.S. at 200, 210, 93 S.Ct. at 2693, 2698. Even an isolated condition of current segregation, resulting from past or present segregative acts, would violate the affirmative duty to eliminate the dual system and its vestiges and to convert to a unitary system in which racial discrimination is eradicated. Dayton II, 443 U.S. at 537, 99 S.Ct. at 2979; Columbus, 443 U.S. at 459, 99 S.Ct. at 2948; Swann, 402 U.S. at 15, 91 S.Ct. at 1275; see also L. Tribe, American Constitutional Law 1498-1500 (2d ed. 1988) (discussing Supreme Court school desegregation cases).
That critical finding shifts the burden of proof to the defendants because it provides "a sufficient basis for an inferential finding of system-wide discriminatory intent" which in turn will be applied to explain "racial separation in other parts of the school system." Columbus, 443 U.S. at 467-68, 99 S.Ct. at 2951-52. At that point, the defendants must come forward with "proof sufficient to support a finding that segregative intent was not among the factors that motivated their actions." Keyes, 413 U.S. at 210, 93 S.Ct. at 2698. If intent cannot be disproved, the defendants must show that their "past segregative acts did not create or contribute to the current segregated condition," in the other parts of the system. Id. at 211, 93 S.Ct. at 2699; see Dayton II, 443 U.S. at 538, 99 S.Ct. at 2979 ("Board has a `heavy burden' of showing that actions that increased or continued the effects of the dual system serve important and legitimate ends").
The district court correctly cited Keyes and Swann in its discussion concerning the burden of proof and noted that the factual justification in this case for the legal presumption was doubtful.[5]Brown, 671 F.Supp. at 1295, 1295 n. 4 & 5. I take this to mean that the plaintiffs simply had not proven a current condition of segregation (a constitutional violation) in the Topeka schools which would warrant sustaining the presumption. But the district court went further when it focused on the defendants and held that, in the alternative and regardless of any presumptions in favor of the plaintiffs, the defendants had proven the existence of a unitary system. Id. Merely because the district court properly discussed an absence of discriminatory intent does not negate the fact that in this record[6] there is evidence tending to show that any past segregative acts of this school district are not responsible for schools currently which do not approach the system-wide minority average. See infra pt. VII, p. 935 (analyzing schools which court claims are racially identifiable and segregated). Indeed, this court at various points acknowledges an absence of evidence of segregative intent by current school officials. Court's Opinion at 893 868 ("we agree with the district court's findings that the current school administration *893 is not presently acting with discriminatory intent"), see also id. at 880, 886; but see id. at 872, (concerning faculty/staff assignment in 1985-86, "it is difficult to posit a [racially] neutral explanation") ,879 & id. at 883 ("It is thus clear that Quinton Heights' current boundaries are the result of continued manipulation by the school district."). The district court also considered circumstantial evidence of past segregative intent manifesting itself in the current system, concerning the prima facie case and beyond. Of course, the district court had much quantitative and qualitative evidence to evaluate. Having performed its required task, it found that "the district's student and staff assignment criteria do not have the effect of discriminating against students because of their race." Brown, 671 F.Supp. at 1310 (denying relief based on Title VI regulation) (emphasis added). Because the record supports the district court's determination that there is not unlawful segregation in Topeka and that the system is unitary, albeit on conflicting evidence, I respectfully dissent.
In its opinion, the court dismisses my dissent as a product of misconstruing the principles of school desegregation law. Court's Opinion at 862-63, 867 n. 47, 868 n. 49, 869 n. 51. Apparently, the court views the affirmative duty to eliminate segregation and its vestiges as completely independent from, if not inconsistent with, the intent inquiry. To be sure, those statutory dual systems operating at the time of Brown I automatically assumed an affirmative duty to eliminate not only the dual system, but also the effects of that dual system on present school operations. Keyes, 413 U.S. at 200, 93 S.Ct. at 2693. However, the initial affirmative duty arises from the presence of intentional segregation whether once commanded by statute or practice.
Moreover, the intent inquiry is inclusive of whether a school board has acted affirmatively, not merely neutrally, to eliminate a dual system existing in 1954. A school board's proven failure to heed its affirmative duty and eliminate a dual system and its vestiges, whether that failure be by inaction or by conscious decision, is indicative of

segregative intent and compounds the harm of an unconstitutional dual system. See Columbus, 443 U.S. at 461, 99 S.Ct. at 2948 ("Whatever the Board's current purpose with respect to racially separate education might be, it knowingly continued its failure to eliminate the consequences of its past intentionally segregative policies."); see also Green v. County School Bd., 391 U.S. 430, 437-38, 88 S.Ct. 1689, 1693-94, 20 L.Ed.2d 716 (1968). In deciding whether a school system is unitary, the ultimate inquiry must be whether past or present segregative intent has been eliminated from the present school operations.
Thus, a current condition of purposeful separation may arise either from a failure to eliminate 1954 de jure segregation and its effects or by subsequent actions which are segregative in their own right. Stated another way, plaintiffs are entitled to a system-wide desegregation order upon a finding that there is current racial separation which is the result of segregative intent, past or current. Plaintiffs are not entitled to a system-wide desegregation order based upon proven de facto racial separation not attributable to the actions of the school board. Keyes, 413 U.S. at 208, 93 S.Ct. at 2697 ("We emphasize that the differentiating factor between de jure segregation and socalled de facto segregation to which we referred in Swann is purpose or intent to segregate.") (emphasis in original). Thus, contrary to this court's reading of my dissent, I agree that school board action which has the effect of failing to disestablish the dual system violates the school board's affirmative duty. See Court's Opinion at 862 (quoting Pitts v. Freeman, 755 F.2d 1423, 1427 (11th Cir.1985)); Columbus, 443 U.S. at 449, 99 S.Ct. at 2942.
I must reject however, this court's contention that "[t]his is not a liability case in which plaintiffs must prove that the school board has committed unconstitutional acts; that was established in 1954." Court's Opinion at 862 894 (emphasis omitted). While this is not a case of initial liability, id. at 868, it is not a case like Swann, see Court's *894 Opinion at 862, in which all parties agreed that the 1969 Charlotte-Mecklenburg school system was not unitary given the Supreme Court's 1968 Green decision, announced three years after the first desegregation plan implemented by that district in 1965. Swann, 402 U.S. at 7, 91 S.Ct. at 1271. In Swann, the issue was whether the district court was correct in selecting among alternative desegregation plans put forth by the parties. Id. at 11, 91 S.Ct. at 1273. Contrary to this court's assertion, Court's Opinion at 862, 868 n. 49, ours is not now a remedy case. Upon the reopening of this case in 1979, some 24 years after the first court-approved desegregation plan, the district court's task was to determine whether liability for the prior de jure system remained. Unlike Swann, the parties in our case hotly contested this issue.
If the liability inquiry in this case was frozen as of 1954 as suggested by the court, id. at 862, we merely would decree a remedy based upon the failure of the school board to have absolute racial balance at every school and much of this court's opinion arguing that (1) there is a current condition of segregation, (2) the school board has failed to fulfill its affirmative duty, and (3) there is a link between present school operations and the prior de jure system, would be superfluous. The inquiry in this case is not so simple because two complex factual issues are involved. The first is whether current disparities in this case comprise a current condition of segregation given that there is not a single one-race minority or virtually one-race minority elementary, middle or high school, in this system. But if there is a current condition of segregation, the burden of proof would shift to the school board as discussed above. The next complex factual issue in the case then becomes whether the effects of any past intentional segregation have been eliminated. An "essential predicate" for a system-wide remedy in this case is that the "Board's purposefully discriminatory conduct and policies, had current, system-wide impact." Columbus, 443 U.S. at 466 n. 15, 99 S.Ct. at 2951 n. 15.
The court also claims that the defendants' experts, the district court and I have erred because we have considered the school board's proof that, having dismantled a dual school system, it is not liable for schools which do not approach the system-wide minority average in student assignment. See Court's Opinion at 876-77. Who could argue with the court's statement that demographic change does not excuse a school board's failure to comply with its affirmative duty to eliminate the effects of a dual system? Id. (relying on Vaughns, 758 F.2d at 988, and Lee v. Macon County Bd. of Educ., 616 F.2d 805, 809-10 (5th Cir.1980)). In both Vaughns and Lee, the appellate court was concerned with virtually one-race minority schools which had not lost their racial identities. Vaughns, 758 F.2d at 991; Lee, 616 F.2d at 808, 811 (5 one-race minority schools). The disagreement between the court's opinion and my dissent on this point is that I view the school board as having accomplished its affirmative duty and having eliminated the effects that may be charged to a once-dual system. All virtually onerace minority schools have been eliminated, and there are no schools on the threshold of virtually one-race minority status. In any event, the school board is allowed to prove that schools which do not approach the

system-wide minority average are not the product of past or present segregative intent or, stated another way, the school board may prove that its recent and remote actions are not the cause of present racial imbalance. In Keyes, the Court recognized that school officials may defend by showing that current racial separation is not a product of past segregative actions. Keyes, 413 U.S. at 211, 93 S.Ct. at 2698. Although the passage of time does not make intentional segregative acts which occurred decades ago any less intentional, id. at 210-11, 93 S.Ct. at 2698-99, the effects of such action may well be attenuated, given the dynamic environment of a school system. The court's absolute refusal to consider this evidence is tantamount to imposing strict liability on the school board in the absence of perfect racial balance.
895 *895 I.
This action began when the original plaintiffs challenged Topeka's maintenance of a segregated system of schools for grades kindergarten through six (K-6). Brown v. Board of Educ., 98 F.Supp. 797 (D.Kan.1951), rev'd, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). At the time, Topeka operated 22 elementary schools, 18 for white children and 4 for black children. Id. Many black children were bused a considerable distance to the 4 black schools. Id. at 798. The challenge involved both the contention that separate schools were inherently unequal and the contention that the physical facilities, curricula, faculty and student services of the black schools were inferior. Id. at 797-98. Circuit Judge Huxman, writing for a three-judge district court, adhered to precedent, Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), and held that separate but equal facilities were constitutional. Brown, 98 F.Supp. at 798-99; see generally In Memoriam, 474 F.2d preface at 13-14 (1973) (discussing judge's difficult decision). The district court entered as a finding of fact that the "physical facilities, the curricula, the courses of study, qualification of and quality of teachers, as well as other educational facilities in the two sets of schools are comparable." Brown, 98 F.Supp. at 798. The judgment was appealed to the Supreme Court, with initial arguments during the 1952 Term.
During September 1953, and prior to the Supreme Court's opinion, the Topeka school board adopted a policy to terminate the maintenance of segregation in the elementary grades. Rec. ex. vol. II at 60. The board adopted the first step of a desegregation plan which terminated the white-only segregation at two elementary schools (Southwest & Randolph) and discontinued the board's supplied transportation to 15 black children in those districts. In January 1954, the board adopted the second step of the desegregation plan to become effective in September 1954. Rec. ex. vol. II at 61. The second step terminated the white-only segregation in 12 more elementary schools, eliminated transportation for black students in these 12 districts, and permitted black students to continue at their former schools, if desired. Id.
In May 1954, the historic decision of the Supreme Court reversed the three-judge district court. Brown I, 347 U.S. 483, 74 S.Ct. 686. The Court held that "the segregation of children in public schools solely on the basis of race" denied minority group children equal educational opportunities contrary to the fourteenth amendment. Id. at 493, 74 S.Ct. at 691. With respect to the Kansas case, the Court expressly found that the non-elementary grade levels of the public schools were "operated on a non-segregated basis." Id. at 486 n. 1, 74 S.Ct. at 687 n. 1. The Court did not alter the finding of the district court of substantial equality "with respect to buildings, transportation, curricula, and educational qualifications of teachers." Id. at 486 n. 1, 74 S.Ct. at 687 n. 1.
In February 1955, the Topeka board adopted the third step of the desegregation plan to become effective in September 1955. Rec. ex. vol. II at 63. The plan addressed the four black elementary schools (McKinley, Buchanan, Monroe and Washington). Under the third step, McKinley was closed, and Buchanan, Monroe and Washington were placed within the general framework of the elementary school attendance districts. Id. All elementary students affected were given the option of finishing elementary school in their present schools, with the exception of McKinley students. Children entering kindergarten in school year 1955-56 were given the option of attending the school they would have attended in 1954-55, had they been old enough.
Having decided the question of constitutional liability, the Court ordered further argument on a remedy and issued its next opinion concerning appropriate relief in May 1955. Brown v. Board of Educ. (Brown II), 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). The Court noted that "substantial progress" had been made in Kansas "from the 896 transition to a system of public education freed of racial discrimination." Id. at 299, 75 S.Ct. at 755. Recognizing

*896 that full implementation of Brown I might "require solution of varied local problems" by school authorities, the Court remanded this case to the three-judge district court for consideration of whether the actions of school authorities constituted a good faith implementation of Brown I. Id. School authorities were to make a "prompt and reasonable start toward full compliance" with Brown I. Id. at 300, 75 S.Ct. at 756.
Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis.... They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system.
Id. at 300-01, 75 S.Ct. at 756-57. The district courts were to be guided by principles of equity and to retain jurisdiction during the transition period. Id. In June 1955, the Supreme Court mandate ordered the district court to take such actions "as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases." Id. at 301, 75 S.Ct. at 757.
On remand, the district court held a hearing on the formulation of a decree and judgment. In October 1955, the panel approved the plan already adopted and partially implemented by the Topeka board "as a good faith beginning to bring about complete desegregation." Brown v. Board of Educ., 139 F.Supp. 468, 470 (D.Kan.1955) (per curiam). The court characterized the plan as follows:
The central principle of the plan is that hereafter, except in exceptional circumstances, school children irrespective of race or color shall be required to attend the school in the district in which they reside and that color or race is no element of exceptional circumstances warranting a deviation from this basic principle.
Id. at 469. The court noted that in several respects, which were minor and not discussed, the plan did not comply fully with the Supreme Court mandate. Id. One serious objection to the plan was that part which permitted kindergarten children to attend the school which they would have attended had they started school one year previously. But because that part was temporary and not part of the permanent plan, it did not defeat a finding of good faith.
At the hearing, the plaintiffs objected to certain schools, such as Buchanan, remaining all black. The district court rejected this as a defect in the plan, stating:
Desegregation does not mean that there must be intermingling of the races in all school districts. It means only that they may not be prevented from intermingling or going to school because of race or color.
If it is a fact, as we understand it is, with respect to Buchanan School that the district is inhabited entirely by colored students, no violation of any constitutional right results because they are compelled to attend the school in the district in which they live.
Id. at 470. In 1973, the Supreme Court indicated that this limited interpretation of Brown was rejected in 1968 by its decision in Green, 391 U.S. at 437-38, 88 S.Ct. at 1693-94. Keyes, 413 U.S. at 200-01 n. 11, 93 S.Ct. at 2693-94 n. 11. Meanwhile, the district court retained jurisdiction of this case for the purpose of entering a final decree pending full compliance with the Supreme Court's mandate to desegregate. The court's order approving the plan was not appealed.
897 In December 1956, the Topeka board considered the fourth step of its plan to comply *897 with the Supreme Court's mandate in Brown II as ordered by the district court. Rec. ex. vol. IV at 120. This final step of the plan was to become effective in September 1956, and eliminated the kindergarten option provision criticized by the district court. Rec. ex. vol. II at 66. The plan also required all elementary students moving into districts, not designated

as optional districts between two or more elementary schools, to attend the elementary school in the requisite district, subject only to traditional exceptions. Id. at 66. Two board members opposed the plan's optional features as prolonging the time before complete integration. Id. at 67. Concern was expressed about the future of the teachers at the de jure black elementary schools. Id. Notwithstanding, the superintendent, under questioning from the board, indicated that no additional steps were contemplated and that the adoption of the plan brought Topeka "into full compliance with the law." Id.
The fourth step of the plan was opposed by the president of the NAACP, Mr. Burnette. Mr. Burnette told the board that the NAACP only took legal action in this case as a "last resort." Rec. ex. vol. IV at 120. He opposed the plan because "it would take seven long years to terminate racial segregation" and no steps had been taken to integrate black teachers. Id. at 120-21. The fourth step of the plan was approved in January 1956. Id. at 121. The plan had been implemented fully as of the 1960-61 school year, and by 1961-62, all elementary students, who had been permitted to continue at the school which they attended prior to implementation of step four of the plan, had completed their elementary education.
Two observations should be made at this point. First, the school board hardly can be faulted for implementing its plan to desegregate the elementary schools. In its revised opinion, the court has downgraded the school board's initial desegregation efforts from "a remarkably enlightened beginning in the mid-1950's," see Brown v. Board of Educ., No. 87-1668, slip op. at 42 (filed Jul. 2, 1989 & withdrawn Jul. 19, 1989), to "a `good faith' beginning", Court's Opinion at 874 (quoting Brown, 139 F.Supp. at 470). This court then characterizes "[t]he mid-50s to mid-60s," as "no doubt" segregative under modern authority. Court's Opinion at 874-75. The board had the approval of the district court and federal authority well into the 1970's, including that of this circuit, which echoed the district court's conclusion that Brown I and Brown II, while prohibiting segregation, did not require concern 898 with integrative racial balancing in neighborhood schools.[7]See Keyes v. School Dist. No. 1, *898 445 F.2d 990, 1005 (10th Cir.1971) ("We never construed Brown to prohibit racially imbalanced schools provided they are established and maintained on racially neutral criteria, and neither have other circuits considering the issue."), modified, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973); Board of Educ. v. Dowell, 375 F.2d 158, 166 (10th Cir.) ("It is still the rule in this Circuit and elsewhere that neighborhood school attendance policies, when impartially maintained and administered, do not violate any fundamental Constitutional principles or deprive certain classes of individuals of their Constitutional rights."), cert. denied, 387 U.S. 931, 87 S.Ct. 2054, 18 L.Ed.2d 993 (1967); Downs v. Board of Educ., 336 F.2d 988, 995-96, 998 (10th Cir.1964) (neighborhood schools which may result in racial imbalance not actionable; no duty to integrate), cert. denied, 380 U.S. 914, 85 S.Ct. 898, 13 L.Ed.2d 800 (1965); Bell v. School City of Gary, 324 F.2d 209, 213 (7th Cir.1963) (neighborhood school plan drawn with no intent or purpose to segregate is constitutional even if effect is that some schools will not be racially balanced), cert. denied, 377 U.S. 924, 84 S.Ct. 1223, 12 L.Ed.2d 216 (1964). Second, courts do not speak unless spoken to and cannot decide what is not before them. Here, the school board made hundreds of decisions since 1952 that the plaintiffs contend reflect segregative intent and effect, yet not until 1979 was the court asked to intervene. While this in no way would excuse noncompliance with the constitutional command to desegregate the schools, it does furnish a backdrop against which to understand the liability focus of this case.
II.
The amplification of Brown I and Brown II began with the Court's decision in Green, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). The New Kent County, Virginia system was considerably smaller than the Topeka system, with an enrollment of 1300 students in two schools, approximately 57% black and 43% white. Id. at 432, 88 S.Ct. at 1691. The court considered a plan which allowed a student to choose between schools which were essentially one-race schools with respect to "faculty, staff, transportation, extracurricular activities and facilities." Id. at 435, 88 S.Ct. at 1693. In every way, the schools were a product of de jure segregation. Although students had a choice between schools, attendance patterns largely reflected the de jure system. Id. at 441, 88 S.Ct. at 1696. Eighty-five percent of the black children attended an all-black school. Id. at 441, 88 S.Ct. at 1696. The court made it clear that school boards operating state-compelled dual school systems at the time of Brown II"were ... clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." Id. at 437-38, 88 S.Ct. at 1693-94.

From 1955-1969, the Topeka school district underwent substantial transition. Due to annexation and unification between 1957 and 1964, the size of the district more than doubled, increasing from 16.60 to 37.45 square miles, which "fundamentally changed the system." See rec. vol. XI at 2399 (commenting upon changes from 1955-60). The population in Topeka grew until 1970, and thereafter declined. Rec. vol. XI at 2292-93; ex. vol. I at 12. This trend was reflected in school enrollment which has declined substantially in recent years.[8] The black and 899 hispanic population *899 increased significantly. Rec. ex. vol. I at 12. And the Topeka school board continued with its responsibility to eliminate de jure segregation and its vestiges.
In the 1955-56 school year, the board operated 23 elementary schools,[9] 7 junior high schools,[10] and 1 high 900 school. Brown, 671 F.Supp. at 1293; rec. ex. vol. IV at 38; *900 supp. vol. XI at 186, 225. At the time of Brown I,
the Court recognized that Topeka did not operate de jure secondary schools. Brown I, 347 U.S. at 486 n. 1. In the 1955-56 school year, black elementary students attended 18 out of 23 elementary schools. Brown, 671 F.Supp. at 1293. At the elementary school level, the total black student population was 10.4% and three schools were 90 + % black (Buchanan, Monroe and Washington). See supra note 9. 45.6% of the black elementary students attended these three schools. Id. Thirteen elementary schools were 90 + % white. Id. At the junior high school level, the total black student population was estimated to be 11.2%. See supra note 10. There were no 90 + % black junior high schools, but 3 schools were 90 + % white (Holliday, Roosevelt & Capper).
In the 1968-69 school year, the school board operated 34 elementary schools,[11] 11 junior high schools[12] and 901 3 high *901 schools,[13] having added Highland Park High School in 1959 through annexation and Topeka West
High School in 1961 through construction. Rec. ex. vol. IV at 64; supp. vol. XI at 225. The system had 25,737 students. Rec. ex. vol. IV at 65; see supra note 8. Three of the four initially de jure black elementary schools had been closed by the 1968-69 school year. McKinley was closed in 1955, Buchanan in 1959, and Washington in 1962. Brown, 671 F.Supp. at 1293. Monroe, the only remaining de jure black elementary school (Monroe) had an enrollment which was 25% white. Id. At the elementary school level, the total minority[14] student population was 17.39% minority (12.40% black), and one school (Parkdale) was 90+% minority and three others were 50+% minority (Belvoir, Lafayette, Monroe). See supra note 11. Eighteen elementary schools were 90+% white. Id. At the junior high school level, the total minority student population was 16.50% (11.81% black). See supra note 12. There were no 90+% black junior high schools, but five junior high schools were 90 + % white (Capper, Eisenhower, Jardine, Landon & Roosevelt). Id. There were no 90+% black high schools, but one high school was 90+% white (Topeka West). See supra note 13. Minority students attended every school in the district, but in widely varying numbers. See supra notes 11-13.
In 1971, the Supreme Court provided greater guidance for the remedial phase of desegregation. Swann, 402 902 U.S. at 18, 91 S.Ct. at 1277. The Charlotte-Mecklenburg school system was considerably larger than *902 the
Topeka system, with an enrollment of more than 84,000 and 107 schools. Id. at 6, 91 S.Ct. at 1271. The racial composition was 71% white and 29% black. To support liability, the Supreme Court mentioned that two-thirds of 21,000 black students in Charlotte city schools attended 21 schools which were 99+% black. Id. at 7, 91 S.Ct. at 1271. The district court's objective was to have the schools approximate the racial composition of the system, 71% white and 29% black. Id. at 9-10 n. 4, 91 S.Ct. at 1272-73 n. 4. To that end, the district court endorsed a plan that called for busing to achieve schools 9% to 38% black. Id. at 9, 91 S.Ct. at 1273.
As a remedial phase case, Swann is important because it speaks "to what extent racial balance or racial quotas may be used as an implement in a remedial order to correct a previously segregated system." Id. at 22, 91 S.Ct. at 1279. The school board argued that the district court erred by seeking racial balance in the 71%-29% range for each school. Id. at 23, 91 S.Ct. at 1279. The Court recognized that the district court's "use ... of mathematical ratios was no more than a starting point in the process of shaping a remedy, rather than an inflexible requirement," and was within the district court's equitable discretion. Id. at 25, 91 S.Ct. at 1280.
The Court spoke to whether there is any constitutional requirement of racial balance.
If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing, that approach would be disapproved and we would be obliged to reverse. The constitutional command to desegregate the

schools does not mean that every school in the community must always reflect the racial composition of the school system as a whole.

Id. at 24, 91 S.Ct. at 1280. This is of paramount importance for this case because, despite the court's citation of this principle, see Court's Opinion at 861, 886, the court has not allowed it to operate. Rather, even after the Topeka board has implemented fully two desegregation plans and the system "improved dramatically in the last ten years as far as desegregation is concerned," Court's Opinion at 877, the liability focus of the plaintiffs and the court is unmistakably on the principle that more could have been done to achieve greater racial balance, that is more schools could approach the system-wide minority average in student assignment. See Court's Opinion at 876, 877-78, 882-84 (analyzing schools which plaintiffs suggest have "clear racial identities," id. at 882, and essentially criticizing school board decisions which resulted in these schools not approximating the system-wide average of minority students). However, "the fact that a school board's desegregation plan leaves some disparity in racial balance among various schools in the system does not alone make that plan unacceptable." Wright v. Council of the City of Emporia, 407 U.S. 451, 464, 92 S.Ct. 2196, 2204, 33 L.Ed.2d 51 (1972) (footnote omitted).

Equally important for this case is the Supreme Court's discussion in Swann of "whether every all-Negro and allwhite school must be eliminated as an indispensable part of a remedial process of desegregation." Swann, 402 U.S. at 22, 91 S.Ct. at 1279. In a section entitled "One-Race Schools," the Court applied a common-sense approach to the problem of racial concentration in various parts of a metropolitan area.

The record in this case reveals the familiar phenomenon that in metropolitan areas minority groups are often found concentrated in one part of the city. In some circumstances certain schools may remain all or largely of one race until new schools can be provided or neighborhood patterns change. Schools all or predominantly of one race in a district of mixed population will require close scrutiny to determine that school assignments are not part of state-enforced segregation.

In light of the above, it should be clear that the existence of some small number of one-race, or

903

virtually one-race, schools within a district is not in and of itself the *903 mark of a system that still

practices segregation by law. The district judge or school authorities should make every effort to

achieve the greatest possible degree of actual desegregation and will thus necessarily be

concerned with the elimination of one-race schools.

Id. at 25-26, 91 S.Ct. at 1280-81. When there has been intentional segregation in the past, there is a presumption against schools that are one-race minority or virtually one-race minority, and the school board has the burden of showing assignment is genuinely nondiscriminatory. Id. at 26, 91 S.Ct. at 1281; Price, 694 F.2d at 353-56. The district court recognized this presumption, although it noted that this case does not "fit the Swann presumption easily." Brown, 671 F.Supp. at 1295. Even though the proportion of minority students in this system is smaller than in many cases and there are no one-race minority or virtually one-race minority schools, the literal Swann presumption could be applied to the 90+% white schools. See Price 694 F.2d at 364-65.

This court acknowledges the critical importance of a finding of "one-race" schools to support a current condition of segregation and liability overall. Court's Opinion at 860-61. The court correctly notes that the significance of "one-race" white schools in this case is limited because of Topeka's large majority white student population (74.05% in 1985). Id. at 869; see also Price, 694 F.2d at 364-65 (recognizing major purpose behind school desegregation cases is to secure rights of minority groups; literal compliance with Swann may not be required when system is heavily white and all schools are majority white). But the court departs from Swann when it imposes liability on the basis of student assignment in the absence of "one-race" minority schools or a district court finding of current intentional segregation. This court imposes liability for a lack of racial balance, while virtually ignoring the demographic testimony of defendants' expert (and other evidence adduced by the defendants), which was credited by the district court. See Court's Opinion at 869 n. 52 ("In a school system with a 26% minority student population, we think the number of schools in Topeka that approach or are over the 50% minority mark constitute persuasive evidence that the school system has not met its duty to desegregate.") (emphasis added).

In 1973, the Supreme Court added an important presumption which expanded the consequences of a current condition of intentional segregation in any part of a school system. Keyes, 413 U.S. at 208, 93 S.Ct. at 2697. The

district court in that case had found contemporary and intentional segregation, including student and teacher assignment, with respect to schools in the Park Hill area in Denver, which were attended by almost 38% of the black student population. Id. at 199, 93 S.Ct. at 2692. Blacks comprised 14% of the students in the system, hispanics comprised 20%; for a system minority population of 34%. Id. at 195, 93 S.Ct. at 2690. Three of five elementary schools in the Park Hill area were 89+% minority; one junior high was 76+% minority and the other was 96+% minority. Id. at 199 n. 10, 93 S.Ct. at 2692 n. 10. Near Park Hill were 22 core city schools, all 22 were 70+% minority and 11 were 90+% black. The district court and the court of appeals essentially required independent proof that the core city schools were a product of official segregation. Id. at 205, 93 S.Ct. at 2695. The Court stated:
[W]e hold that a finding of intentionally segregative school board actions in a meaningful portion of a school system, as in this case, creates a presumption that other segregated schooling within the system is not adventitious. It establishes, in other words, a prima facie case of unlawful segregative design on the part of school authorities, and shifts to those authorities the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions.
Id. at 208, 93 S.Ct. at 2697. The Court emphasized that purpose or intent to segregate is what differentiates 904 actionable de jure segregation from de facto segregation. Id. Thus, plaintiffs would be entitled *904 to the Keyes
presumption upon a showing of purposeful segregation in a meaningful part of the school system. Id. at 208-09, 93 S.Ct. at 2697-98. As noted, once the presumption is invoked, the defendant school board must come forward with evidence showing that "the existence of subsequent or other segregated schooling within the same system ... is not also the result of intentionally segregative acts." Keyes, 413 U.S. at 210, 93 S.Ct. at 2698. The school board must either disprove segregative intent or show "that its past segregative acts did not create or contribute to the current segregated condition." Id. at 211, 93 S.Ct. at 2699.
The framework in Keyes formed the basis for the Court's decisions in Columbus and Dayton II. These cases held that if a school board was operating a dual school system in 1954, even absent a state provision so allowing, a plaintiff may satisfy his initial burden of proof by relying upon evidence of "recent and remote intentionally segregative actions" of the school board. Columbus, 443 U.S. at 463-65, 99 S.Ct. at 2949-51 (emphasis added); see Dayton II, 443 U.S. at 537, 99 S.Ct. at 2979. In both cases, the affirmative duty to eradicate the effects of past segregative conduct not only had been unfulfilled, but also segregative practices persisted. Columbus, 443 U.S. at 460-63, 99 S.Ct. at 2948-49; Dayton II, 443 U.S. at 537, 99 S.Ct. at 2979. Either type of violation would satisfy the intent requirement under the fourteenth amendment; the basis for a system-wide remedy was "purposefully segregative practices with current segregative impact." Columbus, 443 U.S. at 466, 99 S.Ct. at 2951; Dayton II, 443 U.S. at 537-38, 99 S.Ct. at 2978-79.
This court questions the applicability of Keyes and Columbus because those cases involved initial determinations of liability concerning policy-based dual, rather than statutorily dual, school systems. See Court's Opinion at 862. The court explains that the presumption developed in Keyes is limited only "to establish[ing] initial de jure segregation in a case where no statutorily mandated segregation exists." Court's Opinion at 863 n. 27; see also Columbus, 443 U.S. at 458, 99 S.Ct. at 2946 (using Keyes presumption to establish system-wide segregation in 1954); Dayton II, 443 U.S. at 535, 99 S.Ct. at 2978 (same). According to the court, a different presumption "applies ... after either statutorily-mandated or policy-based de jure segregation has been established." Court's Opinion at 863 n. 27. The court then cites Dayton II in a later discussion for support. Court's Opinion at 863. However, like Columbus, Dayton II involved an initial determination of system-wide liability in Ohio where statutorily mandated segregation ceased after 1888. 443 U.S. at 534-35, 537, 99 S.Ct. at 2977-78, 2979; Columbus, 443 U.S. at 455-56, 455 n. 4, 99 S.Ct. at 2945-46, 2945 n. 4. Segregation by official policy, not by statute, was at issue.
In both Columbus and Dayton II, the Keyes presumption was employed to decree a current system-wide remedy on the basis of recent and remote purposefully segregative action, including the failure to satisfy the affirmative duty to eliminate a dual system. Columbus, 443 U.S. at 467-68, 99 S.Ct. at 2951-52 (discussing use of Keyes); Dayton II, 443 U.S. at 537, 99 S.Ct. at 2979 (citing Keyes), 443 U.S. at 534, 541-42, 99 S.Ct. at 2977, 2981-82 (consequences of 1954 dual system and intentionally segregative effect of actions since 1954 furnished basis of

liability). Thus, the Supreme Court not only affirmed lower court findings of officially dual school systems as of 1954, but also approved current system-wide remedies based upon the authority of Keyes. Columbus, 443 U.S. at 467-68, 99 S.Ct. at 2951-52.
III.
In 1973, an action was filed against U.S.D. 501 and various other governmental defendants principally alleging that children in east and north Topeka (with higher concentrations of minority students) received inferior educational opportunities and facilities as compared to children in west and south Topeka. Johnson v. Whittier, No. T-5430 (D.Kan. filed Sept. 10, 1973). The filing of Johnson led to an investigation in November and 905 December *905 of 1973, by the U.S. Department of Health, Education and Welfare (HEW) to determine whether U.S.D. 501 was in compliance with Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Rec. ex. vol. II at 30.
In January 1974, HEW released its findings by letter. The findings of HEW are very similar to the plaintiffs' allegations in this case. Specifically, HEW determined four areas of non-compliance. First, HEW claimed that a "substantial number of ... schools continue to operate with student racial compositions not consonant with a unitary plan of student assignment capable of fully desegregating [the] district." Rec. ex. vol. V at 13. HEW found that five elementary schools "have substantially disproportionate minority student compositions clearly the result of a former dual pattern of operation." Id. The schools and minority percentages were: Monroe (73.98%), Lafayette (61.22%), Lowman Hill (49.08), Parkdale (91.81%) and Belvoir (71.90%). Id.; rec. ex. vol. II at 72. Second, optional attendance zones were criticized. In the "most extreme" (and only) case mentioned "students transferring from areas outside the Lafayette attendance area constitute approximately one-third of the minority enrollment." Rec. ex. vol. V at 13. Thus, HEW was concerned with transfers by minorities to schools with already high minority percentages. Third, HEW found that junior high school facilities in schools with higher minority percentages (Crane, 50.85%; Curtis, 28.90%; East Topeka, 63.32%; and Highland Park, 27.16%) generally were inferior to and older than the four schools with the lowest percentage of minority enrollment (French, 2.97%; Landon, 1.89%, Jardine, 2.13% and Capper, 1.23%). Id. at 13-14; rec. ex. vol. IV at 84 (1973-74 racial inventory). Fourth, HEW found that a larger percentage of minority students, as compared to white students, attended elementary schools with inadequate kindergarten rooms and smaller library media centers. Rec. ex. vol. V at 14; vol. X at 1435.
In February 1974, the board, while not admitting liability, directed Copr. (C) West 2004 No Claim to Orig. U.S. Govt. Works its administrative staff to develop a plan for compliance which could include reassigning students, redefining attendance areas, closing schools and constructing new or modifying existing facilities. Rec. ex. vol. II at 72. The plan developed by the staff was presented in April 1974, and called for changing the attendance areas of 22 schools and closing 7 schools. Id. A concerned parents group complained about the lack of parental involvement and sought to be involved in the development of any plan. Id. at 74. Unlike a federal court, a democratically elected school board is charged with listening to parental concerns. The plan prepared by the staff was not adopted. Id. at 80. Instead, the board unanimously rejected the plan as creating inconvenience and hardship while lowering the quality of education. Id. at 80, 82. The board resolved that the "District determine if inequality of educational opportunities exist, and if so, take the remedial steps necessary to rectify the same, retaining the neighborhood school concept wherever possible." Id. at 80.
In June 1974, HEW initiated formal administrative proceedings to terminate federal funds for the district's alleged lack of compliance with Title VI. See In re Topeka Unified School District No. 501, HEW Docket No. S-79. In the Notice of Opportunity for Hearing, HEW's litigating position unfolded. Rec. ex. vol. V at 150-58. HEW alleged that Topeka never fully desegregated its elementary and junior high schools as required by Brown I and that there were a substantial number of schools that were "one-race, virtually one-race, or substantially disproportionate in student racial composition." Id. at 155 (¶¶ 12, 13). In addition to alleging a dual system with respect to student assignment and facilities, HEW claimed that the school district "has continued to assign faculty in a manner which reinforces the racial identity of its substantially disproportionate and one-race schools." Id. at ¶ 14.

The board went to federal court and sought to enjoin HEW from holding the hearing and cutting off federal funds. 906 The board took the position that the entire Topeka system was still under the 1955 *906 order to comply with
Brown I. See Brown v. Board of Educ., 84 F.R.D. 383, 390-91 (D.Kan.1979). The district judge agreed and concluded that the district court was the proper forum for resolving desegregation claims. Id. at 391. The board then developed a short-range facilities plan which resulted in the closing of two elementary schools (Clay, 25.35% minority percentage, and Monroe, 82.73%) and two junior high schools (Crane, 52.85%, and Curtis, 25.64%), all at the end of the 1974-75 school year. Rec. ex. vol. II at 90-92, 96; ex. vol IV. at 87-88; vol. X at 1436. Monroe Elementary was the last formerly de jure black school, and it was closed at the end of the 1974-75 school year. Rec. ex. vol. II at 84, 90. Ironically, the board hired Dr. Gordon Foster, assisted by Mr. Lamson, who presented alternate suggestions. These parties became the plaintiffs' lead expert witnesses in this case.
By May 1975, the board had adopted an affirmative action plan, and approved the creation of a citizens' advisory committee and a specialized learning center to "be operated in a manner intended to encourage integration among minority and majority students." Rec. ex. vol. II at 94; ex. vol. IV at 3-8; vol. X at 1449-52. All of these programs are still in place, including the learning center which is known as the Topeka Adventure Center.[15]See Brown, 671 F.Supp. at 1309 (discussing Adventure Center).
In March 1976, a divided board adopted a long-range facilities plan, after sharing the proposal with and receiving input from the advisory committee and the community. Rec. ex. vol. II at 96, 99; vol. X at 1437. The plan was a major restructuring of the Topeka schools and it required five years for implementation due to budgetary limitations (cost of capital improvements) and to avoid a reduction in force. Rec. ex. vol. II at 97-98; rec. vol. X at 1454-55 (deputy superintendent Henson). The plan had three purposes: economic efficiency resulting in better conditions for students and staff alike, educational efficiency with respect to facilities and improvement of racial composition in the schools. Rec. vol. X at 1439. Board member Stratton[16] noted that financial concerns were important because of declining enrollment 0907 the district had lost almost one-quarter of its enrollment (6,000 students) in five years. Rec. ex. vol. II at 97. Board member Hurd noted the overwhelming support in the community for the neighborhood school concept. Id. at 98. The plan contemplated the construction of new schools, the closing of older facilities, and the redrawing of attendance boundaries, taking into consideration the anticipated effects on the racial composition of the schools. For our purposes, the principal components of the plan, which this court refers to as a "brief flurry of action," Court's Opinion at 874, included: elimination of all remaining optional attendance areas; closure of five junior high schools (Boswell, Capper, East Topeka, Highland Park and Roosevelt); transfer of the ninth grade to the senior high schools in the 1980-81 school year, conversion of Central Park Elementary to a middle school and construction of a new middle school at the Holliday-State 907 Street site; and the closure of six elementary schools (Central Park, Grant, Parkdale, Polk, Rice *907 and Sheldon). Rec. ex. vol. II at 97-99, 100 (elimination of optional attendance zone at high schools); rec. vol. X at 1439-43 (discussion of middle school concept). In April, HEW officials came to Topeka for two days and discussed the long-range facilities plan, the capital improvements plan, the citizen's advisory group, the affirmative action plan and the Adventure Center. Rec. ex. vol. II at 101.
In September 1976, HEW moved to dismiss its administrative enforcement proceedings on the grounds that the school district had "adopted a plan to remedy the violations of Title VI ... alleged in the Notice of Opportunity for hearing in this matter." Id. at 175. An order of dismissal without prejudice was entered. Id. at 173. In April 1979, HEW received a complaint from Richard Gellar, M.D., alleging that the district's proposed closing of Central Park Elementary (which was to be converted into Robinson Middle School) "could result in the segregated placement of students within the District on the basis of race." Id. at 181. Dr. Gellar then amended his complaint to allege that the implementation of the Long-Range Facilities Plan "has resulted in increased segregation of students in schools since 1976." Id. at 184.
The Office of Civil Rights conducted an investigation and concluded that "there is not sufficient evidence to conclude that the District's pupil assignment practices implemented pursuant to the adoption of its Long Range Facilities Plan violate Title VI." Id. at 185. The Office found that the district was complying with the Long-Range Facility Plan and "reassigning students in a nondiscriminatory manner." Id. at 186. The Office also concluded that an open enrollment policy, which permitted students to attend a school other than their neighborhood school, "had not significantly affected the racial composition of its schools at this time," but continued monitoring was

promised. Id. at 187. The concern was that open enrollment would contribute to increased minority enrollments at schools with high minority percentages. During the second year of the open enrollment policy, the board imposed a majority to minority limitation on the program which assured that transfers would only be approved if they enhanced racial balance. See rec. vol. XIII at 2700-01.
By the 1981-82 school year, the Long-Range Facilities Plan was implemented. Due to the conversion to middle schools, approximately 190 teachers were reassigned in 1980 "to achieve a distribution of minority staff members which will comply with the requirements of the law." Rec. ex. vol. IV at 218. In 1981-82, the board operated 26 elementary schools, 6 middle schools, and 3 high schools. See infra note 18. The administrative staff designed the Long-Range Plan to have an integrative effect as the district court apparently recognized, but this court ignores. Rec. vol. X at 1460-1461, XIII at 2719 (deputy superintendent Henson); Brown 671 F.Supp. at 1299 -1300. For example, the junior high school areas formerly served by East Topeka (71.4% minority in 1979), were combined with those of Holliday and Curtis (lower minority percentages), to be served by Chase Middle School which opened in 1980 with 38.5% minority students. Rec. vol. IV at 106, 110, X at 1461, XIII at 2722. Rice Elementary (33.6% minority in 1980), which the district court noted had a desirable racial balance, 671 F.Supp. at 1299, was closed, but its attendance area was divided between Lafayette and Belvoir, thereby reducing the minority percentage in these schools. Rec. ex. vol. IV at 109; vol. X at 1461; vol. XIII at 2721. Lafayette went from 61.3% minority to 56%, while Belvoir went from 75.6% to 62.8% minority. Rec. ex. vol. IV at 109, 122. Likewise, the closing of Crane Junior High (52.9% minority in 1974) resulted in most of those students attending Boswell which increased minority students from 14.6% to 28.5%. Id. at 88, 91. Then Boswell (42.5% minority in 1979) was combined with Roosevelt (19.5% minority in 1979), and all students were sent to the new Robinson Middle School which opened with 32.9% minority students. Id. at 106, 110; rec. vol. XIII at 2722-23. Moreover, this court 908 points out that "the target minority percentages approved by HEW in 1976 have either been met or improved *908 on." Court's Opinion at 878 n. 76.[17]
With one exception resulting in the combination of two middle schools (Landon into French), the school boundaries for U.S.D. 501 remained constant from the 1981-82 school year until the end of the 1985-86 school year. Rec. vol. X at 1503-04. All schools remained open and the grade configurations remained the same. Thus, in analyzing whether there is a current condition of segregation, the district court had stable boundaries for a fiveyear period and could analyze data which was consistent (compiled the same way) and comparable (measuring the same phenomenon). What is apparent is that the racial composition remained stable, and even became more integrated, given slightly increased minority enrollment.[18]Brown, 671 F.Supp. at 1298.
909 *909 IV.
Having discussed the two desegregation plans completely implemented by the board as the law developed, I now contrast the district court findings with this court's understanding of those findings. As an initial matter, it is useful to consider the scope of the school board's affirmative duty to desegregate and the scope of our review of the district court's findings.
A.
This court tells us that "[w]hat more can and should be done, if anything, is the final component in a determination of unitary status." Court's Opinion at 865. It is up to the school district to "demonstrate thatit has done everything feasible." Id. at 866. Topeka has implemented twodesegregation plans, one court-ordered and one effectively imposed by the federal government. Apparently, this court does not think that either plan counts for much, repeating in stentorian tone, that there is "no pattern to the changes over the years." Court's Opinion at 878 (emphasis omitted). Past efforts do not conform to the court's vision of that which must be done. See id. at 878 ("The school district has unquestionably had the opportunity to draw upand execute a scheme designed to lead to comprehensive desegregation.") (emphasis added). This court is unable to see the desegregative effect of many changes because it has strayed far beyond the purpose of desegregation law.

To comply with federal constitutional standards, the purpose of a desegregation plan, whether voluntary or decreed, is to eliminate an unconstitutional dual system and its vestiges arising from state-imposed segregation. Swann, 402 U.S. at 15, 28, 91 S.Ct. at 1275, 1282. A desegregation plan should be matched with the nature and scope of the constitutional violation. Id. at 16, 91 S.Ct. at 1276; see also Pasadena City Board of Education v. Spangler, 427 U.S. 424 at 434, 96 S.Ct. 2697 at 2703, 49 L.Ed.2d 599 (1976); Milliken v. Bradley (Milliken I), 418 U.S. 717, 738, 94 S.Ct. 3112, 3124, 41 L.Ed.2d 1069 (1974). The plan should be remedial, designed to restore the victims of discriminatory conduct to the position they would have been in had the discriminatory conduct not occurred. Milliken I at 746, 94 S.Ct. at 3128. And in evaluating the plan, the intrinsic value of state and local control of public education should be considered. Dayton v. Board of Educ. (Dayton I), 433 U.S. 406 at 410, 97 S.Ct. 2766 at 2770, 53 L.Ed.2d 851 (1977). To those three ends, Milliken II, 433 U.S. at 280-81, 97 S.Ct. at 2757-58, a voluntary plan should accomplish the most desegregation feasible. Feasibility includes not only geographic factors, but also funding and transportation factors. Lee v. Anniston City School System, 737 F.2d 952, 957 (11th Cir.1984). "The effectiveness of a remedy is the question and it makes no sense to construct 910 decrees that do not grasp the real world." *910 United States v. Pittman, 808 F.2d 385, 394 (5th Cir.1987) (Higginbotham, J., concurring). Or, as stated by the First Circuit: "A realistic approach, moreover, serves the broader objective of ensuring that the courts do not intervene in school affairs any longer than is strictly necessary." Morgan, 831 F.2d at 324.
Thus, unitary or desegregated status does not mean that every school must approach the system-wide average of minority composition. As noted by the Fifth Circuit:
The constitution does not require school districts to achieve maximum desegregation; that the plan does not result in the most desegregation possible does not mean that the plan is flawed constitutionally. "The constitutional command to desegregate the schools does not mean that every school in the community must always reflect the racial composition of the school system as a whole." [Swann, 402 U.S. at 24, 91 S.Ct. at 1280.]. "The school board's constitutional duty is to cure the continuing effects of the dual system, not to achieve an ideal racial balance." [Lee v. Tuscaloosa City School System, 576 F.2d 39, 41 (5th Cir.1978).].
Monteilh v. St. Landry Parish School Bd., 848 F.2d 625, 632 (5th Cir.1988) (footnotes omitted); accord Morgan, 831 F.2d at 325 ("Both the Supreme Court and this court have repeatedly stated that a judicially imposed desegregation remedy goes too far if it attempts to engineer some sort of idealized racial balance in the schools."); Flax v. Potts, 864 F.2d 1157, 1160 (5th Cir.1989) ("There is no constitutional mandate that each school in the school district reflect the racial composition of the school district as a whole."); Pitts v. Freeman, 755 F.2d 1423, 1427 (11th Cir.1985) ("We do not hold, however, that the defendants' affirmative duty compels them to adopt the most desegregative alternative available."); Lee, 737 F.2d 956-57.
When the constitutional violation is purposeful separation of the races caused by school officials in student and faculty/staff assignment, "[t]he mix that would have occurred but for the racism is a judicially created hypothetical." United States v. Overton, 834 F.2d 1171, 1176 (5th Cir.1987). The remedy is to match the school system to a model of unitary or desegregated status. Id. at 1176-77. A major focus of this court's liability analysis is on schools which are predominantly white due to residential migration to the western part of Topeka. But the dominant purpose of desegregation law is to remedy the racial discrimination against minority groups, discrimination which was ineluctably part of a de jure system. See Price, 694 F.2d at 364-65. Merely because some schools are largely white in this predominantly white system is not "per se offensive to the Constitution." Valley v. Rapides Parish School Bd., 702 F.2d 1221, 1226 (5th Cir.), cert. denied, 464 U.S. 914, 104 S.Ct. 276, 78 L.Ed.2d 256 (1983). What would be offensive to the Constitution would be the retention of all-minority or virtually all-minority schools "where reasonable alternatives may be implemented." Id. (quoted in Monteilh, 848 F.2d at 633); see, e.g., United States v. Pittman, 808 F.2d 385, 391 (5th Cir.1987) (rejecting magnet school plan which did not eliminate 2 one-race black schools serving 40% of the black elementary students). Given the district court's findings, that condition is not present here because: 1) there are no all-minority or virtually allminority schools in this system, and 2) those schools which have higher than average concentrations of minority students are not due to the effect of segregative actions by the defendants given the well-supported findings of the district court.

The court also indicates its concern with the few schools which have majority-minority or near majority-minority student enrollments, see supra note 18. Court's Opinion at 869 n. 52, 872-73 n. 59. In a system which has achieved unitariness, a "no majority of any minority" requirement would be beyond what the Constitution requires. Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 434, 96 S.Ct. 2697, 2703, 49 L.Ed.2d 599 (1976). But even in a system which has not been declared unitary, the lack of absolute racial balance which is not attributable 911 to the school *911 board is not tantamount to hindering the process of desegregation.
B.
Although this case involves constitutional claims of racial segregation by school officials, it is essential to keep in mind the proper division of functions between this court and the district court. Dayton Board of Educ. v. Brinkman (Dayton I), 433 U.S. 406, 410-11, 97 S.Ct. 2766, 2770-71, 53 L.Ed.2d 851 (1977). The district court is charged with hearing the evidence and rendering findings of fact. Our task is to review those findings under the clearly erroneous standard, with due regard for the power which Congress has invested in the district courts to make such findings. See Fed.R.Civ.P. 52(a). "The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court." Anderson, 470 U.S. at 573, 105 S.Ct. at 1511. Overstep, we have!
"Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous." Fed.R.Civ.P. 52(a). A finding is clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948) (emphasis added). This standard is not a license to replace the district court's view of the evidence with that of the reviewing court; the reviewing court may not reverse merely because it would have viewed the evidence differently or "given greater weight to certain evidence." 5A J. Moore & J. Lucas, Moore's Federal Practice, ¶ 52.03[1] (1989); accord Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 855-58, 102 S.Ct. 2182, 2189-91, 72 L.Ed.2d 606 (1982); United States v. National Ass'n of Real Estate Bds., 339 U.S. 485, 495-96, 70 S.Ct. 711, 717-18, 94 L.Ed. 1007 (1950). "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson, 470 U.S. at 574, 105 S.Ct. at 1511. Applying these standards, the district court should be affirmed.
There is "great value" in relying on the factual findings of the district court. Dayton II, 443 U.S. at 534-35 n. 8, 99 S.Ct. at 2977-78 n. 8. The intent inquiry in school desegregation litigation almost always concerns objective numerical evidence that is circumstantial, in addition to testimonial evidence by school officials and other desegregation experts. Given the law, the intent inquiry in a desegregation case, including whether segregative intent from 1954 and beyond remains due to non-compliance with the board's affirmative duty, "is an issue that can present very difficult and subtle factual questions." See Columbus, 443 U.S. at 470-71, 99 S.Ct. at 2983-84 (Stewart, J., concurring in result).
This court apparently views its initial inquiry, concerning a current condition of segregation, as largely numerical. But "[W] here numbersalone are insufficient to define racially identifiable schools," the court invokes a broader form of racial identifiability which concerns "demography, geography, and the individual history of particular schools and areas of the city," to virtually assure liability. See Court's Opinion at 861. This approach is the one urged by plaintiffs' expert, Mr. Lamson. See rec. vol. III at 285-286, vol. IV at 459, 493-94, 522. While it is indisputable that racial identifiability may exist without reference to student assignment, and that faculty/staff assignment, facilities or extracurricular activities may result in a school being racially identifiable, see Keyes, 413 U.S. at 196, 93 S.Ct. at 2691 (citing Keyes v. School District No. One, 313 F.Supp. 61 at 74 (D.Colo.1970); Swann, 402 U.S. at 18, 91 S.Ct. at 1277, the court's expanded definition of racial identifiability is not supported by several of the cases it cites.[19] Court's Opinion at 861 n. 25.
912 *912 The court justifies its de novo review of the numerical data as follows:
As a general matter, it is important to note that much of the record evidence consists of statistics and other undisputed facts. Our differences with the district court lie mainly in how the essentially

undisputed facts are assessed in light of the school district's mandate to dismantle the segregated school system. We believe that the district court's finding of unitariness is flawed by the undue deference it gave to the school district's neighborhood school policy and the court's failure to give the proper weight to its own findings that certain actions and omissions by the school district had a segregative effect.
Id. at 868-69 (footnotes omitted). The court then makes the rather incredible statement that, in reaching its decision, "we did not rely upon the experts' opinions." Id. at 868 n. 50; compare id. at 869 n. 52 ("In a school district with a 26% minority student population, we think the number of schools in Topeka that approach or are over the 50% minority mark constitute persuasive evidence that the school system has not met its duty to desegregate.") with rec. vol. V at 622-23 (Dr. Foster's citing the presence of 3 elementary schools which are over 50% minority and 4 which are over 42% minority when asked his opinion of whether vestiges of the former dual school system exist).
The court contends that its disagreement with the district court merely concerns assessment of "essentially undisputed" facts, id. at 869, and of "basically uncontroverted evidence," id. at 868 n. 50; however, in no way can it be said that the implications of the numerical data in this case were uncontested. Indeed, the month-long trial of this case belies that notion. Moreover, the characterization of the numerical data is inherently the province of the district court.
In 1985, the Supreme Court settled that the clearly erroneous standard applies "even when the district court's findings do not rest on credibility determinations, but are based on physical or documentary evidence or inferences from other facts." Anderson, 470 U.S. at 574, 105 S.Ct. at 1511. In 1985, Rule 52 also was amended to encompass documentary evidence. The Advisory Committee addressed and rejected considerations offered in 913 support of the view that it was not necessary to give special deference to factual determinations *913 based on documentary evidence as opposed to credibility determinations:
These considerations are outweighed by the public interest in the stability and judicial economy that would be promoted by recognizing that the trial court, not the appellate tribunal, should be the finder of the facts. To permit courts of appeals to share more actively in the fact-finding function would tend to undermine the legitimacy of the district courts in the eyes of litigants, multiply appeals by encouraging appellate retrial of some factual issues, and needlessly reallocate judicial authority.
Advisory Committee on Civil Rules, Proposed Amendments to the Rules of Federal Civil Procedure, 105 F.R.D. 218, 223 (1984). There are sound policy reasons for adhering to the clearly erroneous rule in all cases, whether documentary or testimonial evidence is involved.
C.
Another reason given for this court's rejection of the district court's factual findings is that it gave "undue deference" to the school district's neighborhood school policy. Court's Opinion at 869. A neighborhood school policy is not, in and of itself, violative of the fourteenth amendment. Crawford v. Board of Educ., 458 U.S. 527, 537 n. 15, 102 S.Ct. 3211, 3217 n. 15, 73 L.Ed.2d 948 (1982). Just as equal educational opportunity is a national policy, so too is neighborhood schooling. See 20 U.S.C. § 1701. There are significant advantages to neighborhood schooling, such as students walking to school, the absence of long bus rides, easier participation in extracurricular activities and possibly greater parental involvement. Of course, the advantages of neighborhood schools cannot outweigh the school board's duty to comply with the Constitution and "dismantle the dual school system." Swann, 402 U.S. at 28, 91 S.Ct. at 1282. To that end, this court has insisted that a neighborhood school plan be "impartially maintained and administered," and "not used as a mask to further and perpetuate racial discrimination." Dowell, 375 F.2d at 166.
The Supreme Court has spoken in the remedial phase of school desegregation litigation concerning neighborhood school plans:

Absent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems.
No fixed or even substantially fixed guidelines can be established as to how far a court can go, but it must be recognized that there are limits. The objective is to dismantle the dual school system. "Racially neutral" assignment plans proposed by school authorities to a district court may be inadequate; such plans may fail to counteract the continuing effects of past school segregation resulting from discriminatory location of school sites or distortion of school size in order to achieve or maintain an artificial racial separation. When school authorities present a district court with a "loaded game board," affirmative action in the form of remedial altering of attendance zones is proper to achieve truly non-discriminatory assignments. In short, an assignment plan is not acceptable simply because it appears to be neutral.
Swann, 402 U.S. at 28, 91 S.Ct. at 1282. As the above passage makes clear, it is a present constitutional violation which empowers a federal court to depart from a neighborhood school plan in favor of some other form of assignment in order to dismantle a dual school system. See Davis v. Board of School Commr's, 402 U.S. 33, 914 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971) (remedy dependent on having found a violation). *914 If the dual school system has been dismantled and there is no constitutional violation, a neighborhood school policy is constitutionally permissible.
In the liability phase of this case, it was entirely appropriate for the district court to consider whether the school district had maintained and administered its neighborhood school policy in a neutral fashion, particularly because the district court found that "the effects of school segregation on residential choice, if any, are not cognizable today." Brown, 671 F.Supp. at 1297 (emphasis added). There are other reasons to reject the court's criticism of the district court's findings on this point. See Court's Opinion at 867, 867, n. 48. First, the district court was compelled to make its findings that the board maintained its neighborhood school policy in a race-neutral fashion because the major part of the plaintiffs' case was devoted to proving otherwise. See, e.g., rec. vol. II at 23-26; vol. X at 1418; supp. vol. XI at 241 (summaries of Mr. Lamson's findings). That is crystal clear on this 3,000 page plus record. The district court found that the neighborhood boundaries were not gerrymandered. Brown, 671 F.Supp. at 1301. Second, a fair reading of the district court's opinion in this case makes it evident that the district court was well aware of its responsibility to look beyond direct evidence concerning the intent of the school board, and also consider a foreseeability test in deciding whether the school board had failed to dismantle the dual system. The district court looked beyond the neighborhood school plan for segregative effect, thoroughly analyzing quantitative measures of racial composition.
D.
Another reason the court gives for rejecting the district court's factual findings is that this court would weigh the evidence differently. Court's Opinion at 869 (discussing "court's failure to give proper weight to its own findings that certain actions and omissions by the school district had a segregative effect" and citing Diaz v. San Jose Unified School Dist., 733 F.2d 660 (9th Cir.1984) (en banc), cert. denied, 471 U.S. 1065, 105 S.Ct. 2140, 85 L.Ed.2d 497 (1985), for an analagous proposition about clearly erroneous district court findings concerning segregative intent). Regrettably, this court does not give a fair recitation of the district court findings. We are told: "The district court made the following findings:
(1) that the neighborhood school attendance boundaries drawn in 1955 had the effect of maintaining segregation." Court's Opinion at 867 (emphasis added). What the district court said was:

A review of the school boundaries as they have developed over thirty years does not reveal a segregative pattern that remains today. The boundaries set around the former de jure black elementary schools after this case was remanded by the Supreme Court appear to have perpetuated the racial identity of those schools. But, the schools have long been closed and the segregative effects of those boundaries have attenuated entirely.

Brown, 671 F.Supp. at 1300. It was not clearly erroneous for the district court to find that 1955 boundaries for closed schools do not figure large into the current situation, over 30 years later. Though a court must look closely and carefully, conduct which resulted in segregative effect thirty years ago may indeed be so attenuated as to be insufficient to support a finding of intentional segregation caused by the school board. Keyes, 413 U.S. at 211, 93 S.Ct. at 2698; Higgins v. Board of Educ., 508 F.2d 779, 792 (6th Cir.1974). Moreover, this finding demonstrates that the district court did consider the effect of school board action or inaction.

(2) "that the construction of new schools since that time had the effect of `promot[ing] racial separation;'" Court's Opinion at 867 (emphasis added).

The district court said:

Although, on its face, the construction of schools, particularly on the west side of the district,

appears to have promoted racial separation, the court does not believe that the district's school

915

construction *915 policy was intended to maintain or promote segregation. Most of the

construction occurred during the peak years of student enrollment. More schools were needed.

The location of the schools in areas of residential expansion was consistent with the race-neutral

neighborhood school concept. There is no evidence that the students attending these schools

could have been accommodated in the existing schools or that land was available in the older,

more racially mixed areas of the district to build new schools.

....

In sum, it does not appear that the district's school construction policy has promoted segregated residential patterns or segregated schools.

Brown, 671 F.Supp. at 1300 (emphasis added). This is a key finding, because with it, the trial court rejected Mr. Lamson's theory that the school board could have sent students to inner city schools with higher minority concentrations that were underutilized, rather than construct new facilities in areas that were expanding and predominantly white. See, e.g., rec. vol. II at 150-51, 179; III at 268-73, 311-14, 334-36; supp. vol. XI at 40-49. Contrary to this court's opinion, the trial court did not find that school construction since 1955 promoted racial separation.

(3) "that the reassignment of students from previous de jure schools to adjacent schools with higher-thanaverage percentages of minority students had the effect of increasing those percentages;" Court's Opinion at 867 (emphasis added). The district court discussed only one situation involving a de jure school on the page cited by this court, namely the transfer of Monroe students to Quinton Heights elementary school. See 671 F.Supp. at 1301. Monroe was closed at the end of the 1974-75 school year because at the beginning of that school year it only had 102 students. Rec. ex. vol. IV at 84, 90. Students were reassigned to Polk, Highland Park North and Quinton Heights. Rec. supp. vol. XI at 173. The minority percentage at Quinton Heights went from 37% (84 out of 227) in 1974-75 to 39.09% (77 out of 197) in 1975-76. Rec. ex. vol. IV at 87, 94. Thus, after Monroe closed, 7 fewer minority students attended Quinton Heights even after the Monroe students were added. Given that the percentage increase (2.09%) of minority enrollment was so small and was accompanied by a decrease in the absolute number of minority enrollment, it is hard to fault the district court for finding that the school district did not act improperly when it sent Monroe students to three neighborhood schools, including Quinton Heights.

(4) "and that the assignment of faculty had the effect of placing minority faculty disproportionately at schools with higher-than-average minority student percentages." Court's Opinion at 867 (emphasis added).

The district court said:

Plaintiffs' major contention with regard to faculty and staff is that the assignment of faculty and staff has served to racially identify the schools in the district.
....
Examining the school system as a whole, despite the tendency to have more minority staff in schools with a greater than average minority student population, the court does not believe the district's assignment policies serve to identify schools as intended for white or black students. The pattern identified by plaintiffs is not monolithic. The current percentages of minority staff in the district's schools are generally within ranges acceptable to other courts in desegregation litigation. Other facets of faculty and staff policies are nondiscriminatory. In sum, the record before the court with regard to the district's approach to faculty and staff is not indicative of a dual system of education.
Id. at 1304-05. As discussed below, the faculty/staff assignment pattern in this case was almost within the range set by plaintiffs' own expert, Dr. Foster, for the one year in which substantially complete data was available to 916 him. See infra note 31 and accompanying text. The district court's finding that the faculty/staff assignment *916 was not indicative of a current condition of segregation is supported by the record, particularly considering the assignment figures for the 1986-87 year.
Continuing with its description of the lower court findings, this court concludes that (5) "the school district's use of space additions, [(6)] its siting of Topeka West high school, [(7)] its drawing of attendance boundaries, and [(8)] its failure to adopt various reorganization plans did not further the process of desegregation." Court's Opinion at 867 (emphasis added) (citing Brown 671 F.Supp. at 1298-1301, 1308-09). That is only true if desegregation is viewed as replicating the system-wide minority average in every school, in addition to eliminating a de jure system and its vestiges. The emphasis of the plaintiffs' case was on the alleged segregative intent and effect of school board actions and the board's inattention to racial balance. The board came forward with legitimate, nondiscriminatory reasons (strong enough to disprove segregative intent) for many of its actions and attributed the racial composition of several schools to demographic forces. More importantly, the school board was able to convince the district court that there was not a current condition of segregation in Topeka, something which is amply supported by the record and not refuted by this court's opinion.
Contrary to the study by the plaintiffs' expert, the district court found that space additions were not "intentionally used to promote segregation or that schools are racially imbalanced today because of space additions." Brown, 671 F.Supp. at 1299.
As for the siting of Topeka West high school, it must be remembered that Topeka never had a dual system of education at the high school level. The site for Topeka West was acquired in the early or mid-50's from a single family because it was big (40 acres) and well-located. Rec. vol. X at 1433, 1506-07. The district court found that the construction of Topeka West was a logical response to the overcrowding of Topeka High and the rapid population growth which was occurring in the western part of the district. Brown, 671 F.Supp. at 1300; see also rec. ex. vol. I at 14 (building patterns indicating that over half of new housing built in Topeka from 1950-70 was in the west area); rec. vol. X at 1432-33 (Topeka High School was overcrowded; Topeka West was built, without a planned athletic facility, only after a second bond election). Topeka doubled in population between 1955 and 1965. Rec. supp. vol. VII at 2094. Indeed, the enrollment at Topeka West was so great that some of the attendance area was transferred back to Topeka High School, furthering integration. Rec. vol. X at 1434. A site in west Topeka made sense because the newly annexed Highland Park High served the east part of the city, while Topeka High was centrally located. Brown, 671 F.Supp. at 1300; rec. ex. vol. I at 14. Moreover, the site was large enough to meet the school board's needs. Rec. vol. X at 1507.
Reorganization plans N and X, proposed in 1984, assumed that no school would have a minority enrollment of greater than 50%, and projections indicated that number would be reduced to 45%. Rec. ex. vol. V at 51; Brown, 671 F.Supp. at 1308-09. In 1985-86, three schools had majority-minority populations: Belvoir (61.86%); Lafayette (56.81%) and Highland Park North (57.93%). Brown, 671 F.Supp. at 1294. The district court was correct in finding that Plans N and X did not constitute a forgone opportunity to improve the racial composition of the schools.

Indeed, the failure of Topeka to adopt Reorganization Plans N and X in 1984 should count for nothing in this case. See Court's Opinion at 877 n. 75 (acknowledging opposition to plans). If there is one consistent theme in this record it is that the plans were expensive ($13 million for N; $15 million for X) and that they were opposed by every segment in Topeka. See rec. vol. XII (testimony of former board members) at 2451 (opposition came from every quadrant geographically, as well as every racial segment), 2452 (plans were expensive), 2467 (cost of plans), 2471-72 (plans would have closed many schools and created some very large schools), 2479 (no sector 917 of community would support plans), 2481 (NAACP vigorously *917 opposed plans); vol. XIII (testimony of deputy superintendent) at 2728 (community attached tremendous importance to neighborhood schools and opposed plans).
In determining that there is no current condition of segregation in Topeka, the district court carefully examined 18 factors: statistical measures of student population; student transfer policy; optional attendance zones; space additions; school closings; school openings; school site locations; school boundary locations; history of the schools; facilities; extracurricular activities; curriculum; transportation; faculty and staff; community attitudes; equality of education; opportunities for desegregation; and other factors. The district court properly examined the traditional factors which bear on unitariness, in addition to those factors raised by plaintiffs which might have a bearing on unitariness. Baliles, 829 F.2d at 1312. Its findings in favor of the defendants in each area are supported by the record, and its ultimate finding of unitariness is likewise supported.
V.
This court's criticism of the district court is succinctly stated:
The court evidently believed that if these two criteria, i.e., no intent to discriminate and consistency with a race-neutral neighborhood school plan, were met, the school district's actions would pass constitutional muster.
....
While it did find that the school district had taken some actively desegregative actions, we are convinced that the court's overall conclusion on unitariness was fatally infected by the inadequacy of the burden of proof to which it held the school district.
Court's Opinion at 867, 868. The district court's attention to the neighborhood school plan already has been discussed in part. See supra p. 913-14. This court misses the mark if it is implying that intent is not relevant in this case. At a minimum, there must be a finding that the condition complained of is the effect of discriminatory intent, whether that discriminatory intent originated in 1954 or since. The district court made permissible inferences given the evidence. It determined that there was not a current condition of segregation and, therefore, the plaintiffs were not entitled to a presumption that the racial imbalance in the school system was a product of past segregative actions.
The whole of desegregation law is predicated upon a constitutional violation. "The school desegregation cases have also adhered to the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose." Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597 (1976). The Constitution does not employ a no-fault approach to liability when it comes to school board actions. Contrary to the court's opinion, intent is still relevant because it bears on causation. Only intentional state action which brings about or maintains segregation results in a constitutional violation. Columbus, 443 U.S. at 464, 99 S.Ct. at 2950. Even in a system that once was dual, whether by statute or practice, "[d]isparate impact and foreseeable consequences, without more, do not establish a constitutional violation.... [But] actions having foreseeable and anticipated disparate impact are relevant evidence to prove the ultimate fact, forbidden purpose." Id. Thus, a district court may consider a school board's adherence to a neighborhood school policy which may lead to racial imbalance, as one factor among many, in deciding "`whether an inference of segregative intent should be drawn.'" Id. at 465, 99 S.Ct. at 2950 (quoting Penick v. Columbus Bd. of Educ., 429 F.Supp. 229, 255 (S.D.Ohio 1977), aff'd in part and vacated in part, 583 F.2d 787 (6th Cir.1978), aff'd, 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979)). "The inference is permissive,

not mandatory." Higgins, 508 F.2d at 793 ("While it is true that a court may infer such an intent [purposeful segregation] from the circumstances there is no authority for the proposition that such an intent must be inferred 918 in all cases *918 where segregated patterns exist in fact") (emphasis in original).

In Dayton II, the Court said:

We have never held that as a general proposition the foreseeability of segregative consequences makes out a prima facie case of purposeful racial discrimination and shifts the burden of producing evidence to the defendants if they are to escape judgment; and even more clearly there is no warrant in our cases for holding that such foreseeability routinely shifts the burden of persuasion to defendants. Of course, as we hold in Columbus today, ante [443 U.S.], at 464-65 [99 S.Ct. at 2950-51], proof of foreseeable consequences is one type of quite relevant evidence of racially discriminatory purpose, and it may itself show a failure to fulfill the duty to eradicate the consequences of purposefully discriminatory conduct.

Dayton II, 443 U.S. at 536 n. 9, 99 S.Ct. at 2978 n. 9. Merely because Topeka built and operated neighborhood schools that fall outside the statistical measures proposed by plaintiffs' experts does not mean that there is a current condition of segregation in Topeka. After two desegregation plans, this case is, at best, one of "foreseeability" based upon effect, although plaintiffs contended that they had shown more. See, e.g., rec. vol. II at 23-26 (opening statement), III at 381 (plaintiffs' expert cataloged effect of school board actions), IV at 449 (plaintiffs' expert took "racial balance as your starting point," in proposing alternatives to board's administrative choices).

To be sure, "the measure of the post-Brown I conduct of a school board under an unsatisfied duty to liquidate a dual system is the effectiveness, not the purpose, of the actions in decreasing or increasing the segregation caused by the dual system." Dayton II, 443 U.S. at 538, 99 S.Ct. at 2979; Columbus, 443 U.S. at 458-59, 99 S.Ct. at 2946-47; Green, 391 U.S. at 437-38, 88 S.Ct. at 1693-94. That, however, does not bar the district court from considering the school board's evidence that its actions have been effective in dismantling the dual system, that the current racial composition of the school system is not a product of discriminatory intent originating before Brown I and living on in effect to the present day. This court's opinion, by downplaying intent and causation, specifically the school board's evidence that segregative effects of past discriminatory intent no longer remain, has imposed liability based on the inferences it wishes to draw from certain objective evidence and testimony upon which reasonable people could differ as to interpretation. On the surface, this process may appear to have the advantage of simplicity and consistency. But the close evidence in this case was hardly simple and we are not allowed such consistency at the expense of district court findings which have support in the record.

The district court was well aware that quantitative data in school desegregation cases may be indicative of past or present segregative intent. Brown, 671 F.Supp. at 1295. It also was cognizant of the school board's affirmative duty to dismantle the dual system. Id. at 1292-93. Finally, the district court recognized that it could draw an inference of segregative intent or an inference of the lack thereof, based upon the efficacy of the school board's desegregation efforts, including compliance with its affirmative duty:

Evidence of segregative motive or the absence of such intent is relevant but not controlling in determining unitariness. "The measure of the post-Brown I conduct of a school board under an unsatisfied duty to liquidate a dual system is the effectiveness, not the purpose, of the actions in decreasing or increasing the segregation caused by the dual system." Dayton II, supra, 443 U.S. at 538, 99 S.Ct. at 2935.

In sum, a unitary school system is one in which the characteristics of the 1954 dual system either do not exist or, if they exist, are not the result of past or present intentional segregative conduct of defendants or their predecessors.

Brown, 671 F.Supp. at 1293.

919

The court shall examine many factors to decide whether illegal segregation exists *919 in U.S.D. #

501. But, the statistical measures of racial makeup of the schools' student bodies are of prime

importance. Often in school desegregation cases such statistics alone prove a pattern of discrimination.
Id. at 1295.
If a district has consistently dragged its feet on desegregation, then the vestiges of the segregated system may remain.
Id. at 1308. Thus, I vehemently disagree with the court's conclusion that the district court incorrectly considered intent, while ignoring the board's affirmative duty.
The district court in this case discussed those factors which supported an inference of segregative intent or noncompliance with the affirmative duty to desegregate. It then explained why it rejected those inferences. See Alexander v. Youngstown Bd. of Educ., 675 F.2d 787, 792-93 (6th Cir.1982) (trial court may reject inferences of segregative intent). That critical discussion, however, is the departure for this court's reversal. See Court's Opinion at 867 (summarizing district court's findings). This court simply does not agree with the district court's declining to draw those inferences. Although this court claims that the district court did not properly evaluate the evidence for segregative effect, no fair reading of the district court opinion would support that conclusion. The district court's exhaustive discussion of statistical racial identifiability and its implications, as well as its detailed treatment of each school alleged to be racially identifiable, belie this court's conclusion that the district court "failed adequately to weigh the conduct of the school district." Id. at 868.
Perhaps the court has decided to dispense with the intent and causation inquiry because it seeks to ameliorate the effects of "subconscious racial discrimination." Court's Opinion at 865-66. Indeed, the court'sremark concerning "longstanding racism" carries with it an implication which is unwarranted. See Id.at 866 ("Courts must assess the school district's achievements with an eye to the possible and practical, but they must not let longstanding racism blur their ultimate focus on the ideal."). The court's explanation of the presumption it invokes, which I maintain is the same presumption discussed in Keyes, conforms with the tenor of the court's opinion:[20] "This presumption ensures that subconscious racial discrimination does not perpetuate the denial of equal protection to our nation's school children." Court's Opinion at 863 (footnote omitted).
The court tells us that a presumption different than the one in Keyes, see supra note 20, applies in this case because the school district was operating a de jure system in 1954. Court's Opinion at 862-63, 863 n. 27. Reliance is placed on a footnote in Keyes, 413 U.S. at 211 n. 17, 93 S.Ct. at 2699 n. 17. That footnote is contained in a discussion of defenses the school board may raise to the prima facie case, including the defense that the effects of past segregative acts have been completely attenuated. The footnote explains that once the presumption is invoked, plaintiffs are not forced to prove non-attenuation because the burden shifts to the school board to prove attenuation. Id. Express language in Keyes makes it clear that the presumption is not limited only "to establish[ing] initial de jure segregation in a case where no statutorily mandated segregation exists." Court's Opinion at 863 n. 27. The Keyes Court stated:
Thus, be it a statutory dual system or an allegedly unitary system where a meaningful portion of the system is found to be intentionally segregated, the existence of subsequent or other segregated schooling within the same system justifies a rule imposing on the school authorities the burden of proving that this segregated schooling is not also the result of intentionally segregative acts.
413 U.S. at 210, 93 S.Ct. at 2698; see also Columbus, 443 U.S. at 457 n. 5, 99 S.Ct. at 2946 n. 5.
920 *920 The reason for the presumption is that "`the prior doing of other similar acts, whether clearly part of a scheme or not, is useful as reducing the possibility that the act in question was done with innocent intent.'" Keyes, 413 U.S. at 207-08, 93 S.Ct. at 2696-97 (quoting 2 J. Wigmore, Evidence 200 (3d ed. 1940)). Thus, "a finding of illicit intent as to a meaningful portion of the item under question has substantial probative value on the question of illicit intent as to the remainder." Keyes, 413 U.S. at 207-08, 93 S.Ct. at 2696-97. The Supreme Court has yet to incorporate subconscious racial discrimination into the equal protection analysis.[21] While a finding of de jure segregation pursuant to statute in 1954 eases the plaintiffs' evidentiary burden, Columbus, 443 U.S. at

457 n. 5, 99 S.Ct. at 2946 n. 5, intent, whether proven by direct or circumstantial evidence, remains an essential element. This court apparently concedes as much, when in the context of its discussion of the burden of proof and unitariness states:
Finally, objective proof of the school district's intent must be considered. How a district lobbies its patrons and government agencies on issues that affect desegregation, whether it seeks and heeds the desegregation recommendations of others, and the cooperativeness of the district in complying with court orders, for example, bear on the manner in which the district has shaped current conditions in the school district.
Court's Opinion at 865 (emphasis added and footnotes omitted). Several cases, including one of our own, also have considered good faith of the school district in deciding unitariness. Dowell v. Board of Educ., 890 F.2d 1483, 1499 (10th Cir.1989); Morgan, 831 F.2d at 321; Ross, 699 F.2d at 226. Good faith speaks to intent and causation and making such inquiries is inconsistent with claiming that intent is irrelevant.
The court comments that: "A focus on provable intent alone would deny a remedy to too many Americans." Court's Opinion at 863. While this may be true once there has been a finding of a current condition of segregation in a meaningful portion of a school system with a relevant history of segregation by law, see Keyes, 413 U.S. at 210, 93 S.Ct. at 2698, such a finding should be a prerequisite to invoke the presumption discussed in Keyes and insure that any resultant system-wide desegregation order is linked to past or present racial discrimination. What the court has done in this case is to substitute its judgment for that of the district court concerning the degree of imbalance necessary to invoke and sustain the presumption. Nowhere is this more evident than in the court's discussion of whether there is a current condition of segregation with respect to student and faculty/staff assignment in the Topeka schools.
VI.
921 It is clear that to sustain the presumption, the plaintiffs were required to prove *921 "a current condition of segregation from intentional state action" with respect to "a meaningful portion of [the] school system."[22]Keyes, 413 U.S. at 205, 208, 93 S.Ct. at 2696, 2697. "Significant racial imbalance" in schools may operate as a "signal" to shift burden of proof, but even that "is a very different matter from equating racial imbalance with a constitutional violation calling for a remedy." Milliken v. Bradley (Milliken I), 418 U.S. 717, 741 n. 19, 94 S.Ct. 3112, 3125 n. 19, 41 L.Ed.2d 1069 (1974). Turning first to student assignment, what the court has done is to decide that if certain schools do not fall within certain percentages of minority enrollment, say 11% to 41% or even 10% to 60%, those schools are racially identifiable and indicative of a current condition of segregation resulting from the prior de jure system. Court's Opinion at 869-70.
A.
Plaintiffs' expert Mr. Lamson testified that a school was racially identifiable as black if it had more than twice the system-wide average of black students. Rec. vol. III at 365. In 1985-86, the black student percentage was 18.4%, so a school with than more than 36.8% black students would have been racially identifiable. On the other hand, a school was racially identifiable white if it had less than one-half the system-wide average of black students. Id. Thus, a school would have been racially identifiable white if it had less than 9.2% black students. Moreover, under Mr. Lamson's view of racial identifiability, a school which had the system-wide average of black students still might be racially identifiable and segregated if neighboring schools had a greater percentage of white students. Rec. vol. IV at 531-32. Thus, according to his view, in 1952-53, Belvoir was segregated when it had 20.8%[23] black students and system-wide black percentage was 11%. Id. at 456-59. Likewise, in 1985-86, Robinson Middle School was racially disproportionate, according to Mr. Lamson, when it had 20.84% black students and the system-wide middle school black percentage was 19.01%. Id. at 486-88. Plaintiffs' expert Dr. Foster did not agree with Mr. Lamson that a school which had the system-wide minority average still could be racially identifiable. Rec. vol. V at 687-88.

Dr. Foster advocated using a measure of ± 15% of the system-wide minority percentage to come up with racially identifiable schools, although he acknowledged using ± 20% in other cases he had worked on. Rec. vol. IV at 549-51; vol. V at 705-10. When the system-wide minority percentage was below 15% or 10%, Dr. Foster used a sliding scale of ± 10% or ± 5%. Rec. vol. IV at 553-54, 575-78. The trial judge seems to have analyzed the plaintiffs' case in part with a ± 15% standard. Brown, 671 F.Supp. at 1295-96; see rec. vol. V at 578. But he came to a very different ultimate finding than this court, which has attached far more significance to the measure: "[W]e believe it perfectly reasonable to use a ± 15% deviation in assessing whether the school system ever achieved unitariness." Court's Opinion at 870 n. 54. Using this standard, there were 15 racially identifiable elementary schools in 1985-86; 7 racially identifiable minority, 8 racially identifiable white. Rec. vol. V at 593, 711; supp. vol. XIII (pl. ex. 155D); see Court's Opinion at 872-73 n. 59. There were 4 racially identifiable secondary schools using the ± 15% standard; 1 racially identifiable minority, 3 racially identifiable white. Rec. supp. vol. XIII (pl. ex. 155G); see Court's Opinion at 872-73 n. 59.

922 *922 The court discusses the testimony of defendant's expert, Dr. Armor, and gives the impression that Dr. Armor suggested a standard whereby a school would not be racially identifiable (segregated) if it contained minority students within a 10% to 60% range. Court's Opinion at 870, 873 see also id. at ___ (court's discussion of "predominantly white schools."). The court then concludes, using this standard, that there are 9 schools which are racially identifiable. Id. at 870. Yet, Dr. Armor was critical of the concept of basing liability on quantitative measures of racial identifiability.[24]

In the interest of completeness, this court should have summarized Dr. Armor's testimony concerning the implications of his "range of acceptability of 10-60%." Id. at 870. This court should have explained that Dr. Armor, under questioning from the court, offered his conclusion, based on three quantitative measures (his absolute standard, the dissimilarity index and the relative exposure index) that the school board had met its affirmative duty under Brown I and had desegregated the elementary grades as to student assignment.[25] Rec. vol. XIII at 2641-42. Had the court done so, it would not have been able to attribute a finding of nine racially identifiable schools by student assignment which result in a current condition of segregation, to Dr. Armor. See Court's Opinion at 870, 873, 884 (invoking Dr. Armor's approach to justify findings).

Dr. Armor did point out that under his 10-60% range, one elementary school (Belvoir; 61.86) exceeded it and five elementary schools fell below it (Crestview, 8.94%; Gage 9.43%; McCarter, 9.16%; McClure, 7.21%; Potwin 7.73%). Rec. vol. XIII at 2580; ex. vol. IV at 170-74. Applying this 10-60% range to the secondary schools, three schools were below (French, 6.23%; Landon, 9.29% [now closed]; Topeka West, 7.94%). See rec. ex. vol. IV at 175-76. However, Dr. Armor preceded and concluded his list with the caveat that merely being outside his range is not necessarily indicative of a current condition of segregation. Rec. vol. XIII at 2579, 2580. This is in accord with plaintiffs' expert Dr. Foster who admitted that racially identifiable schools under his ± 15% standard are not necessarily unlawfully segregated. Rec. vol. VI at 792-93. Dr. Armor testified as follows:

923

*923 What I have been talking about in terms of this standard or a definition of integrated school

has been primarily from the social science conception of what would constitute, what we ought to

define as an integrated school or a desegregated school. It doesn't necessarily mean that a

school that falls outside that range is, is in violation of the [C]onstitution or is wrong or is improper.

One has, in any liability analysis one has to add to that 0907 even my standard one needs to add the

analysis of why a school is 5 percent minority or 70 percent minority outside my ideal range

because if it's not, if it's that way because of demographic factors, then I don't, I don't see

necessarily a basis for why it has to be changed; but I would still hold that ideally or what you

strive for ought to be schools within that range.

Rec. vol. XIII at 2579. The district court's finding that "students are not separated on the basis of race," Brown, 671 F.Supp. at 1298, is supported by Dr. Armor's testimony and the factual findings regarding the above schools contained in the balance of the district court's opinion. Id. at 1294, 1301-04.

Assuming, arguendo, that this court's interpretation of Dr. Armor's testimony concerning the 10-60% range had merit, I submit that it would be anomalous to find a current condition of segregation regarding student assignment

based on only one elementary school (Belvoir) which exceeded the target minority percentage and just barely (by 1.86%). Regarding the 8 predominantly white schools mentioned by Dr. Armor, in a system with low minority percentages overall, it is not unexpected to find some schools which will have large percentages of white students. Court's Opinion at 869. More importantly, every single one of those predominantly white schools identified by Dr. Armor, with the exception of McCarter (which went from a 9.20% minority percentage to 9.16%), has increased the percentage of minority enrollment when the 1985-86 figures are compared to those in 1981-82. See supra note 18.
Moreover, the district court considered other measures of integration in deciding that unlawful segregation did not exist. Brown, 671 F.Supp. at 1298. Specifically, Dr. Armor testified concerning the dissimilarity index and the relative exposure index which are measures of system-wide integration. It is passing strange for the court to all but dismiss the significance of these measures in its discussion of whether there is a current condition of segregation, yet report them[26] and rely upon them concerning the positive effects of the board's implementation of its second desegregation plan. Court's Opinion at 870 n. 55 (rejecting measures because they would not identify a hypothetical all-black school), 875-76, 876 n. 71 (relying on measures to indicate success of school district's desegregation efforts from 1975-81). The court's criticism of these measures, that "they say nothing about the racial balance in individual schools," Court's Opinion at 870 n. 55, is really only partially correct because the formulas rely upon data concerning each individual school. Dr. Armor readily indicated that these indices are to be supplemented by looking at individual schools. Rec. vol. XIII at 2655; see also Court's Opinion at 870 n. 55. And so the district court did.
The dissimilarity index measures the departure of a school system from perfect racial balance.[27]Id. at 2581. If every school had the system-wide minority composition, there would be perfect racial balance and the index 924 would have a value of zero. Id. On the other hand, if every *924 school were completely segregated, the index value would be expressed as 1.0 (or 100).[28]Id. The relative exposure index measures the opportunity for interracial contact given the number of whites and minorities in the system. Id. at 2582. A value of zero indicates total interracial contact, whereas a value of 1.0 (or 100) indicates a total separation. Id. Thus, regarding either measure, a decreasing value reflects a desegregative effect. Dr. Armor preferred the exposure index because it is less a measure of racial balance. Id. at 2583.
Dr. Armor calculated the dissimilarity index and relative exposure index for Topeka over time.[29] Regarding the elementary schools, he testified that from 1966 to 1985 both indices dropped significantly indicating that: 1) there has been a "very substantial decline in the level of segregation" over 20 years, and 2) this improvement came at a time when the percentage of minority students increased from less than 20% (16.5%) to its present level of 26%, and 3) the 1985 value of approximately 15 in the exposure index suggests that a "very substantial degree of interracial contact" is occurring at the elementary level. Id. at 2587. Regarding the middle schools, he reported similar trends, though not quite as dramatic: declines in both indices, improvement during a time when the percentage of minority students rose from 15% to its present level of 26%, and "a very substantial degree of desegregation." Id. at 2587-88. As to the high schools, neither index shows appreciable change over time, although both indices have dropped slightly. Id. at 2588. The reason for this is that both indices started out quite low and it is difficult to get below 10 on the exposure index (1985 value for high schools was 7.3). Id. at 2588.
Dr. Armor reasoned that had Topeka done nothing concerning integration, it is very likely that the indices would have remained at their significantly higher 1966 levels. Id. at 2589-90. Contrary to this court's appellate factfinding, see Court's Opinion at 880 (attendance boundaries) & 881-82 (school closings), Dr. Armor testified that "the reason why desegregation has improved to this extent was a series of school closings and boundary changes" affecting predominantly minority or white schools. Rec. vol. XIII at 2590. Dr. Armor also testified that the system's transfer policies over the years had no significant effects, either segregative or desegregative. Id. at 925 2598. The policies were *925 neutral. Id. This evidence favorable to the defendants was corroborated by defendants' other expert, who considered what would have happened had school boundaries been held constant as of 1963.[30]

B.
The plaintiffs' experts disputed Dr. Armor's work, just as he disputed theirs. For example, plaintiffs' expert Dr. Crain testified concerning the limitations of these indices and that other cities had lower dissimilarity and exposure indices and that more could be done as evidenced by Plans N and X that were not adopted. Rec. vol. IX at 1270-73, 1282-84, 1287; but see F. Welch & A. Light, New Evidence on School Desegregation-U.S. Comm'n on Civil Rights Clearinghouse Pub. No. 92, 38 (1987) ("The fact that the dissimilarity index is useful in depicting changes within a district does not imply that it is useful in comparing districts."). Dr. Foster indicated that he used the dissimilarity index "to determine the progress made across the State of Florida in school desegregation from year to year when data are available," and explained that it was not used "on a school-toschool basis." Rec. vol. IV at 556, vol. V at 686. In short, the experts disagreed concerning the proper approach and whether there was a current condition of segregation regarding student assignment.
For this reason, we need pay particular attention to the Supreme Court's conclusion in Anderson that a factual finding cannot be clearly erroneous when "there are two permissible views of the evidence," when credibility is at issue, and even when it is not. 470 U.S. at 574, 105 S.Ct. at 1511. We have noted:
The Anderson Court justified this conclusion by asserting that "[t]he rationale for deference to the original finder of fact is not limited to the superiority of the trial judge's position to make determinations of credibility. The trial judge's major role is the determination of fact, and with experience in fulfilling that role comes expertise." Anderson, 470 U.S. at 574, 105 S.Ct. at 1512. Although even the trial judge may not always be confident that he "knows" what happened, he is in the best position to "determine whether the plaintiff has succeeded in presenting an account of the facts that is more likely to be true than not." Id. at 580, 105 S.Ct. at 1515.
Pitre v. Western Elec. Co., Inc., 843 F.2d 1262, 1266 n. 1 (10th Cir.1988). If ever there were a case for application of these principles, this is the one.
For this case not only involves documentary evidence, it also involves credibility determinations. At one point, in consistently exercising his discretion to admit evidence that might bear upon the truth of the issues, the trial judge 926 remarked: "Let me *926 say, it is the duty of a court to listen to the experts on both sides, and decide which set of experts to believe. I think it is necessary that I hear everything I can hear on this subject." Rec. vol. IX at 1222. It does not surprise me that the trial judge exercised his prerogative to believe the defendants' experts.
Even on this cold record, it appears that the defendants' experts may have had a patina of believability that comes with acknowledging ambiguity (the evidence is rarely all one way), yet still supporting a position. See M. Chesler, J. Sanders & D. Kalmuss, Social Science in Court 0907 Mobilizing Experts in the School Desegregation Cases 90-106 (1988). For example, defendants' expert Dr. Armor testified that the open enrollment plan which operated for two years and then was discontinued in 1980 had a slightly segregative effect. Rec. vol. XIII at 2624; Brown, 671 F.Supp. at 1298. Likewise, defendant's expert Dr. Clark testified that a boundary change for Parkdale between 1963-64 and 1966-67, which resulted in a greater concentration of minority students "could be discussed in terms of having partly segregative effects, partly demographic effects." Rec. vol. XI at 2326; ex. vol. I at 43. The court notes this fact in its opinion, Court's Opinion at 875, while completely ignoring the conclusion of defendants' expert which supports the district court's findings.
The plaintiffs put on much testimony concerning factual matters which the Supreme Court decided as a matter of law years ago, namely the educational and psychological harms of segregation. Brown I, 347 U.S. at 494-95, 74 S.Ct. at 691-92. Plaintiffs' expert Dr. Crain testified that segregated schools are responsible for the following problems as they affect blacks who might attend such schools: 1) depressed performance on standard achievement tests, which cannot be remedied by compensatory education, 2) higher failure rates on minimum competency testing, 3) a propensity to attend black colleges, 4) a propensity to quit college, if a white college is selected, 5) lack of clear career aspirations, 6) employment discrimination, 7) discomfort with white supervisors, 8) more frequent job changes, 9) higher juvenile delinquency, 10) higher teenage pregnancy, 11) greater unhappiness at age 40, 12) a desire to live in an unintegrated area, 13) infrequent home ownership, and 14)

greater discomfort around whites. Rec. vol. IX at 1231, 1237, 1243, 1251-52, 1254, 1255, 1257, 1259, 1260, 1261, 1262. Viewing the transcript, I do not think that this remarkable list, which Dr. Crain claimed was applicable to Topeka based on his brief visit, id. at 1264-65, enhanced his credibility. Nor did his definition of a segregated system seem consistent with that term as commonly understood in desegregation cases. Dr. Crain testified that, in his view, a segregated system was "when you have that perception of unequal racial composition," because "the harmful effects are going to start occurring because the whole process of desegregation is going to start hitting." Rec. vol. IX at 1289. Finally, Dr. Crain was quite willing to criticize the work of defendants' expert Dr. Poggio, by equating a cognitive abilities test with the Kansas Minimum Competency Test, yet Dr. Crain clearly was unaware of the sequence of the tests and the characteristics of each 0907 regarding the Kansas Minimum Competency test, he did not know its objectives, what it purports to measure, how the test was designed or whether the passing scores change from year to year. Rec. supp. vol. X at 2862-71; supp. vol. IX at 2922-31 (Dr. Poggio's refutation of Dr. Crain's criticisms). Without question, the trial court credited Dr. Poggio's analysis over that of Dr. Crain. Brown, 671 F.Supp. at 1307-08.

Plaintiffs' expert Mr. Lamson was similarly emphatic. He testified that his task was "to identify all of those instances where administrative action would have tended to affect the racial composition of the schools." Rec. vol. III at 363, see also vol. II at 105. After looking at hundreds of physical and administrative decisions (construction, portable building use, attendance boundaries, optional attendance zones) that affect student assignment for thirty years, Mr. Lamson's conclusion is notable for its simplicity and its partiality:

927

*927 I can confidently state that I was unable to find one instance where any of those physical and

administrative educational tools were used as a part of a purposeful and ongoing program of

affirmative pupil desegregation at either the elementary, junior high or middle, or senior high

school level.

Quite to the contrary ... all of those administrative tools were used in an ongoing manner to actively separate the Black and white elementary, junior high and middle, and senior high students of the Topeka school system wherever and whenever feasible.

Rec. supp. vol. XI at 240-41. Mr. Lamson's testimony proves a bit much. Analyzing the motivations and actions of multimembered public bodies over three decades is difficult at best, but concluding that the Topeka system underwent no desegregation 25 years after Brown I blinks reality. Common sense tells us that even a broken clock is right twice a day. Yet too much of Mr. Lamson's methodology has found its way into this court's opinion, given the trial court's rejection of the proposed findings supporting it. This is especially true concerning the court's comments about optional attendance zones, attendance boundaries, and school openings and closings, Court's Opinion at 877-82, because plaintiffs' other lead expert, Dr. Foster, did not do an independent analysis of these factors. Rec. vol. V at 693; vol. VI at 739.

C.

The court also has found a current condition of segregation pertaining to faculty and staff assignment. Court's Opinion at 870-72. The court's reasoning here is questionable because, after rejecting the plaintiffs' standard as "very narrow," id. at 870 n. 56, the court then finds liability when, even under the plaintiffs'"very narrow" standard, all that would have been necessary to eliminate racial identifiability regarding certificated faculty would have been to exchange 13 pairs of faculty members in 1981-82. Rec. vol. V at 663-66. That is only 26 certificated faculty out of 911 then employed, or 2.85%.[31]Id.; rec. vol. VI at 773-74. Faculty members are not fungible; whether this could be accomplished depends upon being able to send 13 minority faculty members into different schools, and replacing them with 13 white faculty members, while making sure that all have the right teaching certificates. Rec. vol. V at 664-65.
We begin with the proposition that "principals, teachers, teacher-aides and other staff who work directly with children at a school" may not be assigned so that the racial composition of the staff will indicate that a school is intended for white or minority students. Singleton v. Jackson Mun. Separate School Dist., 419 F.2d 1211, 1217-18 (5th Cir.) (remedy phase), rev'd on other grounds, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 530 (1970). Even if the

racial composition of a school could be identified by assignment of faculty, that factor, in and of itself, does not mean that the school system is dual with respect to student assignment. Dayton II, 443 U.S. at 536 n. 9, 99 S.Ct. at 2978 n. 9. While a school should not be racially identifiable by its faculty, United States v. Montgomery County Bd. of Educ., 395 U.S. 225, 236, 89 S.Ct. 1670, 1676, 23 L.Ed.2d 263 (1969), the racial composition of the 928 faculty need not *928 be equivalent to that of the student population, Fort Bend Indep. School Dist. v. City of Stafford, 651 F.2d 1133, 1138 (5th Cir.1981). It is possible for a school district to be unitary with respect to student assignment, but not with respect to faculty/staff assignment. Pasadena, 427 U.S. at 436, 96 S.Ct. at 2704-05; Morgan, 831 F.2d at 318-19.
Topeka is not heavily populated, has not been growing and does not have a large minority population as a percentage of the total population.[32] This is reflected in the data on minority employment, which has remained fairly constant over the last five years.[33] Dr. Foster indicated that faculty composition should approximate the minority percentage enrollment in a school system, something which has not occurred in Topeka.[34] Rec. vol. V at 656. Dr. Foster acknowledged, however, that one would have to look at the relevant labor pool, an analysis that was not performed here. Id. at 657-58; see also Hazelwood School Dist. v. United States, 433 U.S. 299, 308, 97 S.Ct. 2736, 2741-42, 53 L.Ed.2d 768 (1977) . But, Dr. Foster did testify that the demand far exceeds the supply of minority faculty members and that he found no fault with the district's recruiting policies. Rec. vol. VI at 757-59.
Dr. Foster analyzed faculty staff assignment, "not as a raw figure of percentage points from the mean," e.g. 929 +-15% of the mean minority percentage. Rec. vol. V at 646. For example, in 1985-86, the percentage of *929
minority faculty staff at the elementary schools was 11.23%. Rec. ex. vol. IV at 261. 15% of 11.23% is 1.68%; thus, a school could vary by +-1.68% from the minority percentage of 11.23%. Id.; rec. vol. V at 650. This means that a school would be racially identifiable if it had more than 12.9% (11.23% plus 1.68%) or less than 9.6% (11.23% minus 1.68%) minority faculty/staff. Id. Applying this concept to the secondary schools which had a minority faculty staff percentage of 12.65%, a school would be racially identifiable if it had more than 14.6% (12.65% plus 1.90%) or less than 10.8% (12.65% minus 1.90%) minority faculty staff. Rec. ex. vol. IV at 262. Applying this very tight standard is based on the theory that the school district has greater control over faculty staff assignments and that, insofar as possible, we should "get every school just like every other." Rec. vol. V at 646, 650-51. Under this method, 22 out of 26 elementary schools are racially identifiable and 8 out of 9 secondary schools are racially identifiable. Rec. ex. vol. IV at 261-62.
This court has rejected Dr. Foster's standard. The court has also rejected the district court's approach which used a +-10% variation around the mean because in one year, 1975, the standard would not have classified elementary schools as racially identifiable even if they had no minority faculty and staff. Court's Opinion at 879; see Brown, 671 F.Supp. at 1305 (noting that in 1985 only six schools had minority staff percentages beyond +-10% of the district-wide average and that all schools have been within +-10% range in last 10 years). In fairness to the district court, the problem identified by this court with the +-10% standard would have occurred only for the first of the ten years; in all other years, the district-wide elementary minority staff percentage exceeded 10%.[35] Moreover, it should be noted that in Dowell, Dr. Foster testified that he had "`no problem'" with a +-10% standard, however, the system-wide average of black faculty in the school district at issue (Oklahoma City) was 36.9%. Dowell v. Board of Educ., 890 F.2d at 1537 (10th Cir.1989) (Baldock, J., dissenting).
In finding its "distinct pattern of correlation," Court's Opinion at 879, between minority enrollment and assignment of minority staff, the court initially used an ad hoc approach which was difficult to apply objectively. In its revised opinion, the court has indicated that a school is racially identifiable as to faculty/staff assignment if it is racially identifiable minority as to student assignment, using a +-15% standard, and 17.3% or more of the faculty/staff at the school is minority. Court's Opinion at 872-73 n. 59. Likewise, a racially identifiable white school (using a 930 +-15% standard) is racially identifiable as to student assignment if 5.6% or less of the faculty is minority. *930 Id. Using this method, there are 14 out of 19 schools racially identifiable by faculty/staff assignment in 1985-86. This means that not all of the schools identified as racially identifiable by the court as to student assignment are racially identifiable as to faculty/staff assignment.

Racially Identifiable Schools by Student Assignment (+-15% std.) (Asterisk* Indicates Racial Identifiability as to Faculty/Staff) Under the Court's Method

Elementary Schools(26)

1985-86 Minority Students

1985-86 Minority Faculty/Staff

1986-87 Minority Faculty/Staff

Belvoir Highland Park North Lafayette Quinton Heights Avondale East Hudson Lowman Hill Bishop McEachron Whitson Gage McCarter Crestview Potwin McClure Middle Schools (6)
Eisenhower Landon French High Schools (3)
Topeka West

61.9 57.9 56.8 49.4 44.1 46.6 41.9 10.5 10.3 10.2
9.4 9.2 8.9 7.7 7.2
48.7 9.3 6.2
7.9

14.8 19.2* 17.3* 21.6* 33.3* 19.2* 25.4*
1.7* 4.3* 2.8* 4.8* 10.9 10.7 14.1 0.0*
18.5* 9.6 5.6*
2.5*

16.67 18.18 14.81 12.50 18.18 15.38 13.04
5.56 5.26 7.69 7.14 9.09 12.00 7.69 5.00

7 r.i. min.
8 r.i. white

15.56 closed 13.89

1 r.i. min.
2 r.i. white

5.88

1 r.i. white

Id. at 872-73, n. 59 & 60, 873-74 n. 61; supp. vol. XIII (pl. ex. 155D & 155G); rec. ex. vol. IV at 122-29, 170-77, 261-62; rec. ex. vol. II at 160-61.

Although the court plainly has adopted a +-15% standard for analyzing racial identifiability as to student assignment, it is interesting to compare the schools that the court finds racially identifiable as to faculty/staff assignment with the schools identified (as to student assignment) using Dr. Armor's "most generous" method. See Court's Opinion at 870, 872-73, 879; see also supra p. 922 (listing schools identified by Dr. Armor for further study). There are only four schools in common to both lists (Gage, McClure, French and Topeka West). All of these schools have increased minority student representation over the years and in 1986-87, had increased minority faculty and administrative personnel.

The court notes that the data concerning faculty and staff was not as complete as it might be, and the problem seems to be that a breakdown of minority teaching and managerial personnel for each school was not available. Rec. vol. V at 660. Dr. Foster was able to prepare a breakdown of the district by employment category which tends to refute some of the court's statements, however. Dr. Foster broke the data down into two areas overall. I suspect that the first group must be certificated.

931 *931

Categories

1985-86 Minority Employees

Total Employees

% Minority Employees

District-wide Managerial School-based Managerial Elementary Classroom Teachers Secondary Classroom Teachers Other Teachers & Professional Staff
Subtotal Teacher Aides Clerical/Secretarial Skilled & Technical Service Workers
Subtotal Total

8

54

8

50

42

373

28

349

44 ___ 130
37 14 10 43 ___ 104 235[36] ===

467 _____ 1,293
195 165
83 212 _____ 655
1,948 =====

14.8 16.0
11.3 8.0
9.4
19.0 8.5
12.0 20.3
12.1 ====

Rec. ex. vol. IV at 268. According to Dr. Foster, given the 12.1% minority average, minorities were slightly underrepresented as elementary classroom teachers and were considerably underrepresented as secondary classroom teachers and clerical/secretarial workers. Rec. vol. V at 662. The court tells us that "minorities are represented more heavily in staff positions than in faculty positions." Court's Opinion at 872. After comparing the percentages, the court then makes the statement that "[a]ny one [minority] faculty/staff person listed at any one school is thus more likely to be a teacher aide or service worker than a teacher." Id. Given the similarity in the absolute numbers of elementary and secondary minority teachers (70) and teacher aide and service workers (80) in the system, one does not have to be a statistician to realize the limited significance of this simplistic appellate finding. Still, that questionable finding is the springboard for the perhaps well-meaning, but very condescending, comment by the court that "because minority employees are more heavily represented as staff than as faculty, it is quite possible that the one minority faculty/staff person at McEachron, for instance, is a janitorial staff person or other service worker rather than a teacher or other professional role model." Court's Opinion at 879; see also id. at 877.

In that same vein, the court remarks that the "practice of disproportionate assignments also reinforces the irrational notion that minority teachers are inferior and not fit to teach white children." Court's Opinion at 872. There simply is no evidence of that in the current Topeka system based on this record. No one disputes that it is important to have white and minority students exposed to positive role models of different races, see rec. vol. VI at 761, but the court's remark is simply inflammatory. Indeed, in a colloquy between Dr. Foster and counsel for the school board, it was revealed that as late as 1971, representatives of the black community appeared before the board seeking "the assignment of black teachers as black role models in predominantly black schools." Rec. vol. VI at 762. Dr. Foster testified that "blacks consistently across the country have demanded that their schools not be staffed predominantly by white teachers, but that black principals and black teachers also appear before the black children." Id. Of course, the bottom line here is the constitutional imperative that staffing decisions be 932 neutral and "that you don't want an absence of *932 either race or ethnic group in any school if you can avoid it." Id.

The court tells us that the distinction between faculty and staff is important, but never comes to grips with what that distinction is. Court's Opinion at 871-72. On the basis of absolute numbers, it appears that 167 minority employees are involved with the educational function (the first group above plus teacher aides) and 67 minority employees are involved with the service function. The strong implication of this court 0907 that minorities are being hired merely for janitorial and service jobs 0907 is not supported. Moreover, such an implication is inconsistent with

the court's observation that the current superintendent is black, as are several principals and managerial personnel. Court's Opinion at 879.
The district court recognized that there was a "tendency to have more minority staff in schools with a greater than average minority student population," yet after a careful review of all the evidence, decided that there was not a current condition of segregation with respect to staff assignment. Brown, 671 F.Supp. at 1305. In deciding that faculty/staff assignment remains segregated, Court's Opinion at 872, this court has relied in part upon the extremes of the data to conclude there is an unlawful pattern. For example, in 1985-86, every elementary school had some minority staff, with the exception of McClure.[37] Only one elementary school had more than 7 minority faculty/staff, Avondale East at 10.45 faculty/staff members. Yet, that is the one the court uses to illustrate its apparent conclusion that there is a segregated system of faculty staff assignment at the elementary level. Court's Opinion at 872; see also id. at 879. When one looks at the elementary data, it is apparent that a perfectly uniform 933 distribution is unlikely given the lack of elementary minority personnel 0907 there were 42 elementary *933 classroom teachers and 74.50 minority faculty/staff members to be assigned to 26 elementary schools. Rec. ex. vol. IV at 261, 268.
Likewise, the court compares Robinson Middle School with 12.20 minority staff members out of 49.35, not with other middle schools[38], but with Topeka West High School which had 3 minority out of 120. Court's Opinion at 872. Note that in 1984-85 Topeka West had almost three times the minority faculty/staff (8.55 out of 114.30) than it did in 1985-86.
Given the court's interest in complete data which breaks out the professional staff that actually works in the particular schools, it is most surprising that the court's opinion does not cite or discuss the minority staffing report for 1986-87 which finally includes administrative and certificated staff assigned to the schools. Rec. ex. vol. II at 160-61. Although admitted over plaintiffs' objection, rec. vol. XVI at 2523-2525, this more current and more relevant report presents a far less extreme picture of minority assignment for the system. Every school in the system has minority personnel. With a 10.78% minority average for elementary school personnel (55 out of 510), elementary schools range from 4.35% minority staffing (Quincy) to 18.18% (Avondale East and Highland Park 934 North).[39] More significant, because of the *934 small numbers involved, is that every elementary school has from one to four minority personnel. Rec. vol. II at 161.
With a 13.22% minority average for middle school personnel (23 out of 174), schools range from 6.67% (Jardine) to 16.67% (Robinson).[40] Every school has from two to seven minority personnel. Finally, at the high school level there is a minority average of 9.77% for high school personnel, ranging from 5.88% (Topeka West) to 11.84% (Highland Park High).[41] The range is from five to eleven minority faculty members.
D.
The district court recognized that the "pattern identified by the plaintiffs is not monolithic." Brown, 671 F.Supp. at 1305. And it is not. The numerical evidence on this point cuts both ways. But this court's finding that this is "a system that has kept white faculty at primarily white schools and minority faculty at predominantly minority 935 schools," Court's Opinion at 879, appears *935 radical given these numbers. Moreover, I agree with the district court that "as important as the racial percentages of the faculty and staff is the fair assignment of qualified and dedicated faculty throughout the district." Id.; see also Milliken v. Bradley (Milliken II), 433 U.S. 267, 280 n. 15, 97 S.Ct. 2749, 2757 n. 15 (one must not lose sight of educational function of schools). This is a school district that is applying the research concerning effective schools.[42]See U.S. Dep't of Education, What Works-Research About Teaching and Learning 45 (1986) ("The most important characteristics of effective schools are strong instructional leadership, a safe and orderly climate, school-wide emphasis on basic skills, high teacher expectations for student achievement, and continuous assessment of pupil progress."); rec. supp. vol. V at 1584-1608, 1635-36 (district has uniform curriculum guides), 1641-42, 1651-53, 1749; supp vol. VII at 2033; vol. XII at 2521-22. It is a system in which schools throughout the district have received outside recognition. Rec. supp. vol. V at 1617-18 (Highland Park H.S., 1984), 1619-20 (Topeka West H.S., 1985), 1620-21 (Eisenhower Middle School, 1985), 1621 (Highland Park Central, 1985), 1622 (School District, 1986), 1623, (Topeka West

H.S. 0907 National School of Excellence, 1984; Robinson Middle School 0907 National School of Excellence, 1985), 1624 (Bishop Elementary School 0907 State Program of Excellence, 1986), 1732 (Head Start, 1974). Finally, the evidence clearly established that the Topeka schools are committed to an awareness of cultural diversity and equal educational opportunity for all. Rec. supp. vol. V at 1759, 1632, 1653-54, 1657-58, 1686, 1717, 1760-61, 1772-73; vol. XII at 2444-45. Ironically and commendably, this is a district that includes the study of Brown v. Board of Education in its curriculum. Rec. supp. vol. V at 1722.
VII.
At trial, plaintiffs contended that eight schools were "racially identifiable non-white or vestige schools." Brown, 671 F.Supp. at 1297. These included Eisenhower Middle School and seven elementary schools: Avondale East, Belvoir, Highland Park North, Hudson, Lafayette, Lowman Hill and Quinton Heights. The court has analyzed the latter six of these schools for "what the district did and did not do," Court's Opinion at 882, totally ignoring the district court's findings and the de facto reasons for the racial composition of these schools. Court's Opinion at 882-85. Part of the court's analysis of these schools is contained in an earlier part of its opinion. See Court's Opinion at 880 (discussing attendance boundaries of Lafayette, Quinton Heights and Lowman Hill). Appendix A contains the 1969-70 elementary school attendance boundaries; appendix B contains those for 1985-86.
Ironically, this court's analysis of these racially identifiable schools is placed in a section entitled "The Causal Link Between De jure Segregation and Current Condition of Segregation." Court's Opinion at 874. The court steadfastly refuses to consider an alternative interpretation of the evidence which would show the absence of a link between the present lack of perfect racial balance and the prior de jure segregation. The court's position is that any consideration of demographic factors which resulted in a lack of racial balance would be to absolve the 936 school board of its affirmative *936 duty. Id. at 876-77, 882. Not so. Courts routinely have considered the presence or absence of demographic factors over which the school board had no control in deciding whether school systems were unitary. See, e.g., Morgan, 831 F.2d at 320 (system unitary; court considered racial concentration in court-drawn school districts); Lawrence, 799 F.2d at 1043 ("In Lawrence County, unlike the situation in Pasadena Board of Education, the School Board's failure to achieve a desegregated school system has not resulted from population migration into, or out of, or within this small rural county."); Ross, 699 F.2d at 226 (system unitary; current housing patterns after desegregation order resulted in several one-race schools). The rationale for this is best stated by this court in a passage concerning one-race schools:
Although virtual one race schools "require close scrutiny," they are not always unconstitutional.18
18 Given modern urban demography and geography, one-race schools may well have evolved for reasons beyond school board control. See Calhoun v. Cook, 522 F.2d 717, 719 (5th Cir.1975). Thus, where a school system consists of de facto one-race schools, rather than de jure, the system is not unconstitutional.
Court's Opinion at 860, 860 n. 18. The above is equally applicable to schools which depart from the system-wide minority average 0907 "they are not always unconstitutional" for they "may well have evolved for reasons beyond school board control." Id.
Concerning these eight schools that the plaintiffs contend are "racially identifiable," the district court found that "the schools are attended by more white students than black students (1,248 white students, 1,079 black students). Indeed, white students make up close to half (49.3%) of all the students that attend these allegedly non-white schools." Brown, 671 F.Supp. at 1298. As the following reveals, there is no need for the appellate fact finding that is going on here, the district court's finding that these schools do not reflect a current condition of unlawful segregation is not clearly erroneous; indeed, it is amply supported by the record and the weight of the evidence. Moreover, the district court's factfinding is free of several errors which permeate the appellate factfinding.

A.
Belvoir elementary was annexed in approximately 1959, thus plaintiffs cannot claim it was a vestige of the former de jure system. Rec. supp. vol. XI at 148. This court attaches significance to the fact that Belvoir's student population has not been less than 50% minority. Court's Opinion at 882. Yet, the district court carefully explained why this does not create liability:
Belvoir Elementary School is centered in an area with a high minority population. It is surrounded by other schools with higher than average minority populations. It is not the black school in a racially mixed area. It is a school with a higher than average black student population in a residential area with a higher than average black population.
Brown, 671 F.Supp. at 1300 (emphasis in original). The district court made further findings, which certainly are 937 corroborated by the data on racial composition.[43] The *937 district court's findings also are supported by the
defendants' expert Dr. Clark, who analyzed Belvoir's hypothetical racial composition, assuming its boundaries remained constant. Rec. ex. vol. I at 28, 34-35.
The district court found that two federally subsidized housing projects constructed in 1963 (Pine Ridge; 210 family units) and in 1965 (Trail Ridge; 148 family units) caused the minority elementary student population to increase to over 50%. Brown, 671 F.Supp. at 1302; rec. ex. vol. IV at 215. Plaintiffs' expert Mr. Lamson did not take these housing projects into account. Rec. vol. IV at 463. The district court also found that closing Rice Elementary in 1981 and reassigning some of those students to Belvoir improved the racial balance at Belvoir. Brown, 671 F.Supp. at 1302. This court characterizes the closing as having "a modest desegregative effect at Belvoir," Court's Opinion at 882, but the data reveal that the minority percentage dropped by approximately 13%. See supra note 43. The Belvoir attendance district now is largely minority and the changed racial mix in the school has been caused by actions other than those of the school board. See Higgins, 508 F.2d at 791 ("the law imposes no affirmative duty upon school officials to correct the effects of segregation resulting from factors over which they have no control").
B.
This court's complaint about Hudson Elementary is that "[w]hile the passage of time has dissipated Hudson's identity as a white school, this change is due solely to the spread of minorities into its attendance area, not to any action by the school district." Court's Opinion at 882. It seems anomalous to find fault with the school board concerning residential movement which altered the original racial composition at Hudson. But it is consistent with this court's view that residential patterns which detract from racial balance are always the responsibility of the school board, while residential migration which improves racial balance should not inure to the benefit of the school board insofar as liability is concerned. See Court's Opinion at 863-64 ("A showing that the school district has not promoted segregation and has allowed desegregation to take place where natural forces worked to that end is insufficient."). Following this logic, residential movement could lead to absolute racial balance and still support a finding of school board liability, especially given the court's view that a school which approaches the system-wide minority average may still be racially identifiable.
Apparently, the defendants are constitutionally liable for Hudson because it now exceeds the system-wide minority average by 20%, with a 46.55% minority student population. See Court's Opinion at 882. The plaintiffs view Hudson as racially identifiable black, notwithstanding that 53.45% of the students were white in 1985-86. Appellants' Brief at 38; Brown, 671 F.Supp. at 1301. Hudson is perhaps the archetype for illustrating the court's refusal to consider the effect of demographic factors which result in changing student racial composition at various schools. The district court gave clear reasons explaining the racial composition at Hudson, reasons which do not encompass liability for these defendants. Hudson was constructed in 1963 and has steadily increased in 938 minority *938 enrollment.[44] The boundaries of Hudson have not changed since 1964. Rec. ex. vol. IV at 13-29. The district court found that "the construction of subsidized housing projects in the Hudson attendance area" in

1965 (Colonial Townhouses; 137 family units), in 1967 (Highland Park Apartments; 200 family units) and in 1970 (Deer Creek; 92 family units), together "with the general increase of minority residents on the east side," was responsible for the increase in minority enrollment at Hudson. Brown, 671 F.Supp. at 1302; rec. ex. vol. IV at 215. Plaintiff's expert Mr. Lamson did not take into account the effect of any of these demographic changes. Rec. vol. IV at 464-65.
Plaintiffs' position concerning Hudson and Avondale is legally untenable. After conceding that the increased minority enrollment at Hudson and Avondale East is "purely [the] result of residential change," plaintiffs continue:
In a de jure school system, the school board has the duty to react to residential change to ensure that no school becomes disproportionately Black. Swann, 402 U.S. at 14 [91 S.Ct. at 1275]. The failure of the Topeka School Board to prevent Hudson and Avondale East from becoming disproportionately Black is a constitutional violation.
Appellants' Brief at 38. Plaintiffs' position is not supported by the law or the facts. After two desegregation plans and over thirty years after Brown I and Brown II, it cannot be said that Topeka operates a de jure system. Apparently, plaintiffs' conception of the duty imposed by the Supreme Court is never-ending. The Court, however, has declared to the contrary. In Swann, the Court recognized that once the constitutional violation is eliminated, school authorities are not "constitutionally required to make year-by-year adjustments of the racial composition of student bodies" even if the community experiences demographic changes. Swann, 402 U.S. at 31-32, 91 S.Ct. at 1283-84. Moreover, there is no requirement that every school in the district reflect the system-wide average minority enrollment, either before or after a finding of unitariness. See Pasadena, 427 U.S. at 434, 96 S.Ct. at 2703.
C.
Like Belvoir, Highland Park North Elementary was not part of the Topeka system in 1954. Instead it was annexed 939 in *939 1959, rec. vol. IV at 394, and is estimated to have had close to the system-wide average of minority
students then.[45] There has been a steady increase in minority students attending due to residential patterns. Brown, 671 F.Supp. at 1302. This court's complaint is that when Parkdale closed in 1978, the "reassignment [of Parkdale students] increased Highland Park North's minority percentage at a time when it was already high." Court's Opinion at 882. As the district court points out, however, the school board was able to close Parkdale, a predominantly black school (85.6% minority) while reassigning its students to a nearby school, Highland Park North. Brown, 671 F.Supp. at 1302. Moreover, as footnote 45 indicates, the increased minority percentage for 1978-79 was caused by two factors: an increase of 43 (170-127) minority students and a decrease of 21 (142-121) white students. Considering the court's fleeting approach to some of these schools, see, e.g., Court's Opinion at 882, it is unclear how the court's observation trumps the district court's reasoned analysis rejecting constitutional liability.
D.
Lafayette Elementary began as an all-white de jure school. Brown, 671 F.Supp. at 1302. It has increased in minority enrollment and has remained a majority-minority school, although the composition of the minority groups 940 has varied over the years.[46]Id. *940 (noting that minority composition was 56-59% over the last five years, with a varied composition). This court notes that federally subsidized housing projects were built in the area in the early 1960's. Court's Opinion at 883; rec. ex. vol. IV at 215 (1961-Eastboro Apts.; 28 family units; 1962-Eastboro Apts.; 76 family units). More units were built in 1970. Rec. ex. vol. IV at 215 (Ripley Park Apts., 102 family units).
This court first looks to 1966 and reports the racial compositions of Lafayette's neighboring schools (omitting Highland Park North). Court's Opinion at 77. I have done the same in chart form comparing the minority percentages with the surrounding schools, in 1966 and now.
Direction

School

from Lafayette

1966-67 Minority %

1985-86 Minority %

Lafayette

Parkdale

SW

Sumner

NW

State Street

NE

Rice

E

Belvoir

SE

Highland P.N.

SW

54.49 93.12 12.29 27.52
3.00 59.72 21.60

56.81 closed 1978 (85.62% min.) 31.47 26.26 closed 1981 (33.55% min.) 61.86 57.93

Rec. ex. vol. II at 48-A, 49-B; ex. vol. IV at 54-55, 97, 109, 170-74.
The court then concludes that Lafayette "remains a transition school between schools with higher minority percentages to the south and lower percentages to the north and west." Court's Opinion at 77. To understand what the court means, it is necessary to refer to the court's previous discussion on school boundaries. Court's Opinion at 70. There, the court decides that Lafayette is the product of segregated boundaries because it has a different minority percentage than every one of its neighboring schools. In the words of the court:
The border between Lafayette and State Street, the school to Lafayette's north, has functioned as the boundary between the mostly white area served by State Street and the school to its north [Lundgren] ... and the schools to its south and southwest [Highland Park North and Belvoir]. Lafayette has long had twice the minority population of State Street; thus, since 1966, Lafayette's minority population has ranged from 52% to 69% while State Street's has ranged from 27% to 34%.
941 *941 Id. (footnote omitted). This conclusion is remarkable not only because it is appellate factfinding concerning intent including noncompliance with the affirmative duty on "objective" facts that are far from obvious, but also because it ignores that the surrounding population of the Lundgren and State Street schools (as of 1980) had far less black concentration than did the surrounding population of Lafayette, Highland Park North and Belvoir. See rec. ex. vol. I at 49. Moreover, it conflicts with the district court's finding on this point attributing the increased minority percentage to demographic factors, Brown, 671 F.Supp. at 1303, rather than a "segregative effect" of boundary changes by defendants. The district court's finding is supported by common sense and the defendants' expert, Dr. Clark. See rec. ex. vol. I at 35, 43-45.
Once again, the district court's findings make more sense than ours. Looking at the chart, see supra p. 940, it is apparent that Topeka closed two schools with greater and lesser minority concentrations than Lafayette. The district court noted that the closing of Parkdale resulted in the Lafayette minority percentage increasing by four percent (from 62% to 66%), Brown, 671 F.Supp. at 1302; however, the next year saw the percentage return to its prior level (from 66% to 62%), and decrease thereafter. See supra note 42. The district court then thought that the closing of Rice, which resulted in reassignment of some students to Lafayette, may have contributed to the minority percentage decreasing in future years. Brown, 671 F.Supp. at 1302. Dr. Clark, defendants' demographic expert, using residential population data which had a high correlation (.8 to .9 out of 1.0) with school attendance data, viewed the increased minority percentage at Lafayette as a result of demographic changes. He concluded that the closure of Parkdale, with respect to Lafayette, was overall desegregative. Rec. vol. XI at 2338, 2373, 2388-89; ex. vol. I at 35, 43, 45.
This court's ultimate conclusion, that "[u]nder its neighborhood school plan, the school district simply maintained Lafayette as a school with disproportionate minority percentages," Court's Opinion at 883; see also id. at 880, ignores the demographic factors involved and implies that the school district had an obligation to racially balance Lafayette because it exceeded the system-wide minority percentage.

E.
Like Lafayette, Quinton Heights Elementary began as an all-white de jure school. Brown, 671 F.Supp. at 1303. The district court noted the steady increase in minority student population, and that the minority concentration 942 has remained approximately 50% over the last several years.[47]Id. This *942 court's approach to analyzing the school has been to adopt the conclusion of plaintiffs' expert contained in his report and testimony, while simplifying the analysis and not discussing the effect of allegedly segregative optional attendance zones, as did Mr. Lamson. See Court's Opinion at 883; rec. vol. XI at 139-48, 173-78 (Lamson Report on Quinton Heights, School Closings), vol. III at 248-59 (Lamson testimony concerning Quinton Heights) (cited in Court's Opinion at 883 n. 88), 284, 287, 290-93 (closure of Monroe and Polk and affect on Quinton Heights); see also Court's Opinion at 874-75 (summarizing 1955-65 in Topeka system 0907 "Plaintiffs introduced evidence tending to show that the school district's use of portable classrooms and optional attendance zones served to maintain segregation by concentrating students of one race at certain schools."). Of course, to adopt the full analysis with the discussion of optional attendance zones would conflict with the district court's finding that "any segregative effect of the zones was slight and does not remain today." Brown, 671 F.Supp. at 1298. The district court's finding, which necessarily includes the optional attendance zones discussed by plaintiffs' expert, is supported by the testimony and report of defendants' expert Dr. Clark. Rec. vol. XI at 2304-05, 2309-10, 2318-19, 2321-22, 2327-28. Dr. Clark analyzed the effect of boundary changes in Topeka, including optional attendance zones. See supra note 30; see also rec. ex. vol. I at 19. But concerning school closings, the court has been convinced by the testimony of plaintiffs' expert.
Again, we track this court's odyssey. The court begins by considering two closings: Pierce and Van Buren. In 1957, Pierce was annexed to the district; in 1958 the adjacent schools to the west with which it shared a common boundary were Quinton Heights and Monroe. Rec. supp. vol. XI at 140; rec. ex. vol. IV at 12. In 1958, the enrollment began to decline at Quinton Heights at an average rate of 21 students per year. Rec. supp. vol. XI at 142. In 1959, the 79 remaining black students at Pierce were assigned to three other elementary schools: Quinton Heights, Highland Park North, and Highland Park Central. Id. at 142. Plaintiffs' expert admitted that what effect this had on the racial composition of Quinton Heights is not known. Id. at 143. Mr. Lamson also reported that during 1956-66 Quinton Heights lost white students while gaining black students. Id. at 142.
In 1962, the attendance boundary of Quinton Heights was expanded northward into what had been areas served by Van Buren and Central Park. Id. at 144; rec. vol. III at 251. This resulted in a gain of 45 students for Quinton Heights after it had lost an average of 21 students for the previous 4 years. Rec. supp. vol. XI at 144. Van Buren, however, still had an attendance area and continued to operate. In 1964, Van Buren was closed; most students were sent to Monroe; some were sent to Quinton Heights.[48] Rec. vol. III at 255; supp. vol. XI at 145-46.
943 *943 This court continues with the observation that by 1966 the minority percentage of Quinton Heights was 36.4% and certain schools surrounding Quinton Heights had greater and lesser concentrations of minority students. Court's Opinion at 883. And so we continue. The following chart provides more detail.

School
Quinton Heights
Highland Park Central Avondale East Avondale West

Direction from Quinton Heights

1966-67 Minority %

36.42

SE

16.64

SE

14.96

SW

1.26

1985-86 Minority %
49.43
35.09 44.14 16.61

Stout

W

Central Park

NW

Polk

N

Monroe

NE

Highland

Park North

NE

.50 15.49 11.54 79.45
21.60

26.83 closed 1980 (42.90% min.) closed 1979 (48.00% min.) closed 1975 (82.73% min.)
57.93

Brown, 671 F.Supp. at 1299; rec. ex. vol. I at 48A; ex. vol. IV at 54-55, 87, 101, 105, 170-73. The court tells us that by 1966 Quinton Heights "was bordered by heavily minority Monroe elementary school and otherwise by primarily white schools." Court's Opinion at 883. This statement is in error.

The average minority percentage in 1966 for elementary schools was 16.49%. Rec. ex. vol. IV at 56. Keeping this in mind, it appears that other schools, besides neighboring Monroe, had minority percentages which very nearly met, or exceeded, the system-wide elementary average. As the above chart points out, Highland Park Central, Avondale East, Central Park and Highland Park North simply are not one-race white or virtually one-race white schools. Moreover, I do not see the significance of the court's statement that Quinton Heights had the seventh largest minority population out of 35 schools. How does this fact create liability? Thus, the district court did not err when it rejected the attempt to "characterize the reassignments in the 1960s as part of a process of focusing Quinton Heights as a school for black students." Court's Opinion at 883.

The court next demonstrates its ability to find its own facts by describing the population density maps in relation to a neighboring school of Quinton Heights: "Indeed, on the maps available to us, it is quite noticeable that Polk's boundaries in 1970 correspond closely to a patch of white population surrounded by minority population assigned to other schools, including Quinton Heights." Id. The court's subjective observation demonstrates the limitations of its approach. The map cited by the court, rec. ex. vol. I at 67, tells us the percentage of black population by block. Notwithstanding the intended breadth of the court's analysis, the map does not tell us about other minorities, e.g., hispanic. Nor does it tell us much about population density or anything about student density. See rec. vol. IV at 485. Yet, the court's clear implication from looking at the map is that the boundary around Polk as of 1970 was drawn in such a way as to exclude minorities. The following chart, comparing the minority percentages of Polk with its neighboring schools, including Quinton Heights, as of 1970, the date of the map, undercuts the court's finding.

944 *944 School

Direction from Polk

1970 Minority %

Polk

Monroe

SE

Quinton

Heights

S

Central Park

SW

Lowman Hill

NW

Clay

NW

21.33 79.91
45.86 24.53 41.52 21.26

Rec. ex. vol. I at 48A; rec. ex. vol. IV 70-71. The court's finding is suspect for at least two reasons. First, as the above chart shows, the minority population in the area is dispersed to several schools in the area. Polk is hardly an all-white school, with a 78.67% white student enrollment. Indeed, after Monroe closed in 1975, plaintiffs' expert Mr. Lamson testified that Polk was racially disproportionate black with a 30.4% black enrollment, while the elementary average was 14.82%. Rec. vol. III at 284 and supp. vol. XI at 173; ex. vol. IV at 91. Second, Polk exceeded the system-wide minority elementary average which was 18.67% in 1970. Rec. ex. vol. IV at 72. These factors, not considered by this court, convince me that the court has made a finding in error.

Continuing with the analysis of Quinton Heights, the court next complains about two adjacent school closures in the 1970's because they resulted in extending the northern boundary of Quinton Heights into northern areas with

high minority concentrations. Court's Opinion at 883. Unfortunately, the court does not share with us which closings are involved, id., but I suspect they are Monroe which closed in 1975, and Polk which closed in 1979. When Monroe closed, its attendance area was divided between Polk, Highland Park North and Quinton Heights. Rec. supp. vol. XI at 173. As I previously noted, the effect on Quinton Heights was negligible; although the minority percentage increased from 37 to 39.09%, seven fewer minority students attended in 1975. See supra p. 915 (noting that 2.09% increase largely due to declining white enrollment). Indeed, not until the fall of 1979 did the number of minority students at Quinton Heights exceed what existed immediately prior to the closing of Monroe. Thus, expanding Quinton Heights' attendance area northward when Monroe closed could hardly support a firm and definite conviction that Quinton Heights' boundaries were being manipulated so as to racially identify the school as intended for minority students.
Apparently the closing of Polk resulted in the reassignment of its students to Quinton Heights, Sumner, and Lowman Hill. Rec. vol. III at 291. The minority percentage at Quinton Heights did increase from 38.95% (in 1978-1979) to 50.23% (in 1979-80), with the addition of 44 minority students and 5 white students. This is the only action here which arguably is indicative of inattention to the affirmative duty. The district court, however, rejected that inference. Brown, 671 F.Supp. at 1303. Based on the foregoing, I cannot agree with the statement that: "It is thus clear that Quinton Heights' current boundaries are the result of continued manipulation by the school district." Court's Opinion at 883. The court's analysis is inconsistent with its contention that the district court should not have focused on intent, and that there was indeed none. Court's Opinion at 868.
The court attaches great significance to the fact that Quinton Heights is a relatively long district which extends into minority populations in the north and east. Id. at 883. But what the court does not point out is that the southernmost part includes all of the area for Topeka Country Club and the Kansas National Guard Armory, which easily comprises one-quarter of the school's attendance area. See rec. ex. vol. I at 49; rec. ex. vol. V at 60. These areas probably have few, if any, elementary students; thus from a practical perspective, the Quinton Heights area is not as long as it may appear because its southernmost area is occupied by large institutions. Merely because the balance of the school's attendance boundaries includes minority population, or that the school includes Topeka Avenue or railroad tracks, does not compel a conclusion that the boundaries were drawn 945 with segregative intent or effect. See rec. vol. III at 291-92 (Mr. Lamson *945 commenting about undesirable configuration of attendance area). Indeed, the presence of natural barriers in elementary attendance areas is hardly unique in this system. See rec. ex. vol. V at 225-228 (listing 20 elementary schools with natural barriers, e.g. institutional spaces, major thoroughfares, waterways, railroad tracks).
The court's earlier discussion of "peculiar-looking attendance boundaries" is peculiar in itself because, like the court's subjective approach to map reading, the court of appeals has moved far beyond its review function into the realm of a trial court. Court's Opinion at 880. Still, based on this untethered perception of "peculiarity," the court declares that Quinton Heights' current boundaries are segregative. Id. Put simply, the court seeks to overturn the district court's factual finding that the attendance zones are not gerrymandered. Brown, 671 F.Supp. 1300. Notwithstanding the countless hours spent on this case by the panel, I remain firmly convinced that we have added very little to the district court's amply supported findings. Admittedly, the evidence is not perfectly consistent and all in defendants' favor. But it is not nearly so one-sided or in favor of the plaintiffs' as this court apparently believes. The trial judge had a firm grip on the applicable law and a superb command of the facts in this complex case. We have done no better, even assuming that we were so empowered.
F.
Notwithstanding that Lowman Hill Elementary began as an all-white de jure school, this court finds that "[t]he school appears to have been designed and maintained as a school with a concentration of minority students." Court's Opinion at 884. The court begins by describing plaintiffs' contention concerning optional attendance zones, see Appellants' Brief at 13 n. 20; rec. supp. vol. XI at 96-98; vol. III at 235-41; however, it is unclear whether the court accepts those contentions, in light of the district court's rejection of those same contentions. Court's Opinion at 883-84; see Brown, 671 F.Supp. at 1298 (optional attendance zones (all eliminated in 1976) did not have significant segregative effect; any effect attenuated). The emphasis of this court seems to be on the inclusion of two areas that have greater concentrations of black residents[49] in the northwestern part of central

Topeka, within the Lowman Hill attendance boundaries. The district court pointed out that these two areas "are closer to the Lowman Hill Schools than other schools in the area." Brown, 671 F.Supp. at 1301. Indeed, that was the observation of defendants' expert Dr. Clark.[50] Rec. vol. XI at 2344-45.
946 *946 In 1959, a new and expanded Lowman Hill school was constructed which received black students from Buchanan. Rec. supp. vol. XI at 92. This increased Lowman Hill's minority percentage to 49.63% by 1966, but the school has never had a majority-minority population.[51]Brown, 671 F.Supp. at 1301. The district court gave very close attention to this school and its relationship to surrounding schools.
This court mentions the closings of three surrounding schools and complains that these closings "did not affect the minority student percentage at Lowman Hill." Court's Opinion at 880. The court then provides the answer to "why not?" when it tells us that "the student population it [Lowman Hill] acquired was apparently of the same makeup as its existing population." Id. at 884. The answer is not surprising when one compares the minority percentages of the schools that closed in relation to Lowman Hill.

Year

School Closed

Minority % Year Closed

Lowman Hill Minority % Year Other School Closed

1975 1979
1980

Clay Polk Central Park

25.35 48.00
42.90

47.04 40.74
43.13%

947 *947 Rec. ex. vol. IV at 86, 101, 105. The above chart indicates that the schools that were closed were very similar in minority concentration to Lowman Hill. If anything, the presence of racially similar neighboring schools that were ultimately closed undercuts the court's finding that Lowman Hill is racially identifiable and used to concentrate minorities.

Looking at the neighboring schools and their racial composition in 1985 hardly compels the conclusion that Lowman Hill is racially identifiable.

School

Direction from Lowman Hill

1985-86 Minority %

Lowman

Hill

Quinton

Heights

SE

Randolph

SW

Gage

NW

Potwin

N

Sumner

NE

41.89
49.43 14.81
9.43 7.73 31.47

Rec. ex. vol. I at 49B; rec. ex. vol. IV at 170, 173-74. It should be pointed out that nearby Quinton Heights had a higher minority percentage than Lowman Hill. The district court recognized that although several surrounding schools had a lower minority percentage, this alone did not require it to conclude that the actions of the school board resulted in a segregative effect. Brown, 671 F.Supp. at 1301. It noted that Lowman Hill was centrally located and had stable boundaries over time. Id. Perhaps if this court had de novo review, the panel majority

would come to a different conclusion, but on these very mixed facts the district court's call was certainly not clearly erroneous.
G.
The court next shifts to "primarily white schools," as racially identifiable. These apparently are schools which this court has determined should have greater minority enrollments, both in the past and the future.[52] Court's 948 Opinion at 884. These *948 schools purportedly have an identity as "schools for white children," id. at 884, which I suspect can only be changed to the court's satisfaction by strict racial balancing, regardless of the de facto reasons for their current racial composition. The purpose of desegregation law is to wipe out the effects of the prior de jure system, not to eliminate every difference in racial composition between schools. See supra p. 909-11. Moreover, many of these schools have experienced increases in minority percentages as a result of residential movement. Brown, 671 F.Supp. at 1303-04. Despite this court's clear view that positive changes in racial composition due to demographic factors are not relevant to determining whether the vestiges of a prior de jure system remain, see Court's Opinion at 874, 875, one would expect that a school district operating a dual system would have taken action to oppose or modify the effects of trends. That is not what has happened in Topeka. Brown, 671 F.Supp. at 1304.
Concerning the location of new schools, this court makes the following statement which could give the wrong impression:
All of the elementary schools and all but one of the secondary schools opened by the school district since Brown II were built in the white outer part of the district. Robinson middle school, which serves the central part of Topeka, is the sole exception. Furthermore, many of these schools were built near to the edges of the district.
Court's Opinion at 881; see also id. at 874-75. The judgment in Brown II was announced May 31, 1955. To be sure, numerous schools were opened in the western part of the district and had substantial white enrollments. The district court identified these as:
McClure, Sheldon, McEachron, McCarter, Bishop and Hudson elementary schools, as well as Jardine [1961], Eisenhower [1961] and Landon Junior High Schools [1963] and Topeka West Senior High School [1961]. These schools were in areas of residential expansion. During the same period, new schools with mixed racial compositions replaced existing facilities at Lowman Hill, Lafayette, Highland Park Central, Central Park and Belvoir elementary schools.
Brown, 671 F.Supp. at 1299; rec. supp. vol. XI at 194, 225. It should be added that Quinton Heights was replaced in 1954. Rec. supp. vol. XI at 40, 50. Thus, several schools which were not on the outer edge of Topeka were included in the district's new school construction during and subsequent to the mid-50's: Lowman Hill, 1959; Quinton Heights, 1954; Lafayette, 1956; Highland Park Central, 1965; Belvoir, 1967; Central Park, 1967. Brown, 671 F.Supp. at 1299; rec. supp. vol. XI at 40, 43, 50, 92, 166, 170.
Based on its erroneous finding that Topeka's neighborhood school plan resulted only in the construction of schools for white children in the far reaches of the district, thereby increasing segregation, the court tells us that "[a] school district conscious of its constitutional duty would have attempted to counteract that effect." Court's Opinion at 881 (citing Diaz, 733 F.2d at 667-69); see also Court's Opinion at 864 and 864 n. 31 (endorsing "castigation" approach). Although Diaz contains helpful language that a neighborhood school policy must be carefully analyzed as to application and enforcement before constitutional liability may be imposed, 733 F.2d at 664, the case is both legally and factually distinguishable. The duty of the school board in Diaz was different than 949 that of these defendants; clearly established California *949 state law required affirmative action to relieve segregation, regardless of the cause. Diaz, 733 F.2d at 666-67. Moreover, according to the majority in Diaz, the board failed to consider state guidelines and rejected alternatives which would have enabled it to comply with its duty. Id. at 669. That is not what occurred here. Noticeably absent from the plaintiffs' evidence is any complaint to the school board or the district court, when the school construction in question occurred.

Finally, I come to Topeka West High School, built in 1961 and considered by the plaintiffs and the court[53] as "the quintessential example of deliberate channeling of white students to schools in the western part of the school district." Court's Opinion at 884; see also id. at 881 (plaintiffs/court finding "that Topeka deliberately placed new schools as far as possible from minority residential areas in order to polarize the district into white outer and minority inner schools."). Once again, this court's focus on "deliberate" conduct is inconsistent with its criticism of the district court for considering intent. Although this court criticizes the location of the school, which is near the western edge of the district, there were valid reasons, which have been discussed elsewhere, for placing the school in that location. See supra p. 916; see also Brown, 671 F.Supp. at 1300. The notion that Topeka West was built to channel white students from Topeka High, as contended by the plaintiffs, is not supported by the facts. In 1961, Topeka High was a winner of the prestigious Bellamy Award. Rec. vol. X at 1500. But it was overcrowded with 2,300 students. Rec. vol. IX at 1442-43. Topeka West opened with 700 students the first year, 900 the second, 1100 the third and continued to grow until 1969 when part of the attendance area was transferred back to Topeka High. Id. at 1434. Topeka High led high school enrollment totals for several years after the opening of Topeka West. Like Topeka High, Topeka West has won a prestigious award: Topeka West was designated a National School of Excellence recently, rec. supp. vol. V at 1622-23. Topeka West has had increased minority enrollment over the years as the western portion of Topeka becomes more residentially integrated.[54]
950 *950 H.
In addition to school openings, the court has undertaken to overturn the district court's finding that, on the whole, school closings were "an integrative device." Brown, 671 F.Supp. at 1299. Again, the court takes shelter in describing the plaintiffs' contention: "that school closings of highly segregated schools were not desegregative in practice because the school district simply reassigned the students at those schools en masse to a nearby school which then took over the segregated status of the school closed." Court's Opinion at 881; see also supra note 53. The court then adopts this as its finding: "The evidence supports this contention for the 1950s and 1960s." Court's Opinion at 881. Regarding the 1970's on the whole, the court tells us that most closings were not segregative or desegregative. Id.
In its section on school closings, the district court mentioned 13 closings by name. Brown, 671 F.Supp. at 1299. I have discussed several closings in the context of this dissent and see no reason why the district court should be overturned. This court's one paragraph summary analysis of school closings, while giving the appearance of completeness, does not facilitate my review. I cannot respond to the court's position without knowing which closings are covered by its findings and why.
VIII.
The district court recognized that the plaintiffs "hinge their case on this absence of racial balance in all schools and the failure of the defendants to promote racial balance." Brown, 671 F.Supp. at 1295.
At any time, more could have been done to achieve racial balance in the schools. But, it begs the issue of this case to argue that racial balancing must be done today because it was not done yesterday. More should be done to improve racial balance in the schools if the existing imbalance follows from defendants' past intentional segregative conduct.
Id. at 1309. Thereafter, the district court found that the present racial imbalance does not derive from "the de jure system or a foot-dragging segregationist policy." Id.
In 1985-86, Topeka had no one-race or virtually one-race minority schools. Whether we look at percentages or absolute numbers, the district court was not clearly erroneous in deciding that the Topeka system was not currently segregated. Of 34 schools, only three had majority-minority populations. Brown, 671 F.Supp. at 1294. Those three schools (Belvoir, 146 minority students (ms); Lafayette, 217 ms; and Highland Park North, 179 ms) served 542 minority elementary students or one-quarter of the minority elementary population (2,141 ms). See rec. ex. vol. IV at 170, 171, 174; Court's Opinion at 877. Five elementary schools (Crestview, 32 ms; Gage, 25

ms; McCarter, 35 ms; McClure, 23 ms; Potwin, 18 ms) had 90 + % white enrollment, yet they served 6.2% of the minority elementary population. Id. at 170, 172, 174. Two of the middle schools which are now combined (French, 241 white students (ws); and Landon, 205 ws) served 31 percent of the white middle school population (1,446 ws); while serving 6.95% of the minority middle school population (37 ms/532 ms). Id. at 175-176. At the high school level, Topeka West had a 90 + % white enrollment, serving 41.6% (1391 ws/3349 ws) of the white high school population, but also serving 11.48% (120 ms/1045 ms) of the minority high school population. Id. at 176-77. Though this court views the evidence differently, I submit that the district court's finding is supported by these numbers, when considered on this record, and looking back to the prior years. See supra text accompanying notes 9-13; see also supra note 18.
Although the court repeatedly tells us that racial balancing is not the objective, the court does acknowledge that "numbers are usually the focus of desegregation plans." Court's Opinion at 886; see also id. at 860. Without question, numbers resulting in better (strict) racial balance are the only remedy for what the court perceives as 951 "schools that are now and always have been white, schools that are now and *951 long have been heavily minority, and others." Court's Opinion at 886. The court seems to be leaning toward replication of the systemwide minority average in every school when it indicates that even compliance with a ± 15% standard for student assignment would be insufficient. Court's Opinion at 885. In the words of this court:
Dr. Foster also pointed out that such an approach would move schools now just beyond the 15% range to just within it, an improvement he did not find greatly desegregative as would preserve the existence of schools differing by as much as 30% in their minority percentage and thus still marked as minority or white schools.
Id. at 885-86. (footnote omitted). The inherent nature of a 15+-% standard for student assignment means that some schools may vary by as much as 30%, though many probably will not. My research has not disclosed any court finding that compliance with a ± 15% standard as to student assignment was indicative of a current condition of segregation.
When one looks carefully at the most recent data we have on student assignment, see supra note 18, while considering the racial composition of this system (74% white), this court's views are unique, given the wide distribution of minority students throughout the system and the absence of one-race minority schools. Indeed, several courts reviewing desegregation plans have given effect to the language in Swann that some "one-race, or virtually one-race, schools within a district [are] not in and of [themselves] the mark of a system that still practices segregation by law." 402 U.S. at 26, 91 S.Ct. at 1281. See, e.g., Morgan, 831 F.2d at 323 (Boston system with majority-minority student enrollment unitary; there was "substantial degree of integration" despite several schools with 80%+ enrollments of one race and several schools out of compliance with court-ordered desegregation plan); Calhoun v. Cook, 522 F.2d 717, 719 (5th Cir.1975) (Atlanta system with 85% black enrollment unitary; 92/148 schools 90%+ black); Ross v. Houston Indep. School Dist., 699 F.2d 218, 219, 226 (5th Cir.1983) (Houston system with 74% minority enrollment unitary; 55/226 schools were 90%+ black and 2 schools all white). I submit that the presence of some predominantly white schools in this system and three schools which have a slight majority of minority students does not violate the equal protection clause. Washington, 426 U.S. at 240, 96 S.Ct. at 2047-48 (predominantly one-race schools not alone violative of equal protection).
Because the numbers are not indicative of a current condition of segregation, and the testimony relied upon by the district court supports the very opposite, it becomes necessary for the court to engage an unyielding presumption against the Topeka system from the outset. The court simply has jumped the gun in invoking the Keyes presumption to arrive at the preliminary and critical conclusion that there is a current condition of segregation in Topeka. Nowhere is this more evident than in footnote 61, Court's Opinion at 873-74, when the court explains that its discussion of the current condition does not conflict with the district court's conclusion that there is no unlawful segregation in Topeka. This court reasons that because the district court "did find the existence of racial disparities in school enrollment and staff/faculty assignment," it should have immediately invoked a presumption against Topeka: "Our disagreement with the district court is chiefly on the significance of these findings in a district with Topeka's history, and bearing the weight of a presumption against it which the district court failed to accord." Court's Opinion at 874 n. 61. This court's understanding of the district court's findings differs from mine. See supra p. 914-17. But even granting the comparatively small departure from perfect

racial balance in this system, Topeka's history is one factor, among many, that a court may consider in deciding whether the presumption should be invoked. "While that history of discrimination cannot and should not be ignored, it `cannot in the manner of original sin, condemn governmental action that is not itself unlawful.'" Riddick, 952 784 F.2d at 539 (quoting *952 City of Mobile v. Bolden, 446 U.S. 55, 74, 100 S.Ct. 1490, 1503, 64 L.Ed.2d 47 (1980) (plurality opinion by Justice Stewart)). To require perpetual application of the presumption would mean that no school district which had a de jure system in 1954, could ever be free of the presumption and achieve unitary status. The requirement of a current condition of segregation resulting from past or present segregative intent (as opposed to segregation resulting from voluntary demographic change), prior to the operation of the presumption, allows a school system to redeem itself and, one day, be free of federal court supervision. See Riddick, 784 F.2d at 538-39 (rejecting argument "that the Norfolk school board must continue to justify all of its actions because of the history of segregation."). That day should come for U.S.D. 501 in Topeka.
Alternatively, even if the presumption applies, the school board may adduce proof that the effects of past segregative intent have attenuated completely. Keyes, 413 U.S. at 211, 93 S.Ct. at 2699. This was recognized in Dayton II when the Court indicated that the Dayton school board "had failed to come forward with evidence to deny `that the current racial composition of the school population reflects the systemwide impact' of the Board's prior discriminatory conduct." Id. 443 U.S. at 537-38, 99 S.Ct. at 2979-80 (quoting Brinkman, 583 F.2d at 258). Here, "the Board was given ample opportunity to counter the evidence of segregative purpose and current, systemwide impact," Columbus, 443 U.S. at 467-68, 99 S.Ct. at 2951-52, and such evidence was credited by the district court.
In repeatedly castigating the defendants for noncompliance with the affirmative duty, the court relies upon the same incomplete approach that plaintiffs' expert took 0907 not considering regional and local migration and other demographic factors which necessarily influence school board decisions. See rec. vol. IV at 510-511. For example, the court criticizes the defendants for building new schools in the late 1950's and 60's to accommodate population growth in western Topeka and concludes that "the erection of so many schools devoted to educating white children had a significant segregative effect on the district."[55] Court's Opinion at 881. In arriving at this conclusion, the court apparently relies upon the following: "With respect to the new schools themselves, [the plaintiffs] argue that Topeka should have taken advantage of the underutilized inner schools; that is, that Topeka should have voluntarily bused white children from outer Topeka to the inner city schools instead of putting up new buildings." Court's Opinion at 881; see also rec. supp. vol. XI at 158-72 (Lamson theory). It is one thing to theorize that students could have been bused to a slightly underutilized seven grade (K-6) elementary school (e.g. Lowman Hill with an average of 43 spaces unused from 1957-66, or Quinton Heights with 28 spaces unused in 1966), but it is quite another to match the grade levels of spaces available each year with the grade levels of a hypothetical group that would be assigned to the school annually. See rec. vol. IV at 448-49 (underutilization analysis did not consider grade level of students); vol. X at 1538-41; supp. vol XI at 169. Moreover, this suggestion ignores the complaint that HEW had in 1974 concerning educating students in older schools. See supra p. 905.
Another of the administrative possibilities suggested by Mr. Lamson to improve racial balance would have been to combine Highland Park Central and Highland Park South in 1968, and build a school between the two. This proposal would have entailed abandoning two existing buildings with large enrollments, and the expense of building a new school. Rec. vol. X at 1475-76. The combined enrollment of the new school would have been 1,334 students, something which has never occurred in Topeka, and what deputy superintendent Henson thought 953 was "too large an elementary school for this community or any community." Id.; rec. vol. IV at 512-13; see *953 also supp. vol. XI at 170. Moreover, in suggesting alternatives for the 1950's and 1960's decisions concerning elementary boundaries, some of these alternatives would have required busing and lunch provisions for students, but Mr. Lamson did not consider that the Topeka system lacked a hot lunch program until the mid-60's. Rec. vol. IV at 443-448, 510; supp. vol. XI at 34-35, 56.
Unfortunately, one could get the wrong impression concerning the board members' attitude about desegregation. This court seems to fault the board members for not testifying that they regularly took desegregation concerns into account. Court's Opinion at 878. I do not read their testimony as precluding such concerns. Mr. Dennis C. Payne, board member from 1957-65, explained that the neighborhood concept was in keeping with the desegregation required by Brown because, previously, black children were not allowed to attend the schools

closest to their homes. Rec. vol. XII at 2417 ("So we felt the neighborhood concept was what everybody wanted and what we wanted."). Mr. Payne testified to an absence of gerrymandering for racial segregation. Id. He also testified that he was aware of white flight due to the original four step plan and adherence to the neighborhood school plan. This court quotes his response: "What could we do? We can't make people move, no way." Id. at 2423 (quoted in Court's Opinion at 878). Considering the time period to which this statement refers, and the school district's then-recent adoption of a plan which met with the approval of this court, I would suggest that the school board could not prohibit people from moving, although perhaps it could have changed the consequences of a move with respect to school assignment. Cf. Ross, 699 F.2d at 225 (when district has successfully implemented plan to achieve unitary status, there is "no affirmative fourteenth amendment duty to respond to the private actions of those who vote with their feet").
Mr. Joe Douglas, Jr., the fire chief of the City of Topeka, and a board member from 1977-85 (board president for two years), testified that he and the other black member of the board opposed the open enrollment plan, which was adopted due to pressure from working parents who wanted their children to attend schools close to day care arrangements. Rec. vol. XII at 2441; see Court's Opinion at 878 n. 81. The plan was soon discontinued because of its effect on minority percentages. Rec. vol. XII at 2442-43. It was replaced by a majority to minority transfer plan.[56]Id. at 2443-44; Brown, 671 F.Supp. at 1298. While he was on the board, Mr. Douglas advocated that no school in the district should exceed 50% minority, but the fact that some schools exceeded that percentage was not indicative of segregation, which he termed "as in the eye of the beholder." Rec. vol. XII at 2454-55. Contrary to the court's assertion that board members did not consider desegregation concerns, Mr. Douglas testified that the school board that he served on "took as a priority the lowering of minority percentages."[57]See Court's 954 Opinion at *954 878; rec. vol. XII at 2456. The current superintendent of schools, Dr. Edwards, supported the commitment to improve the racial composition of the schools. Rec. vol. XII at 2530.
During trial, there was testimony about concerns identified by the National Commission on Excellence in Education which prepared A Nation at Risk. Rec. supp. vol. VII at 1996-99. The Commission emphasized that improved education is essential not only to assure that the United States will remain competitive internationally, but also to assure "the intellectual, moral and spiritual strengths of our people which knit together the very fabric of our society." National Commission on Excellence in Education, A Nation at Risk: The Imperative For Educational Reform, at 7. It appears that Topeka has heeded the call to provide "all, regardless of race or class or economic status, ... a fair chance and ... the tools for developing their individual powers of mind and spirit to the utmost," for "individuals in our society who do not possess the levels of skill literacy, and training essential to this new era will be effectively disenfranchised, not simply from the material rewards that accompany competent performance, but also from the chance to participate fully in our national life." A Nation at Risk at 4, 7. "No person of goodwill toward his fellow man can logically argue" with the naturally correct premise of Brown I: equal educational opportunity in a unitary system for all children regardless of race. Keyes v. School Dist. No. 1, 521 F.2d 465, 490 (10th Cir.1975) (Barrett, J., concurring), cert. denied, 423 U.S. 1066, 96 S.Ct. 806, 46 L.Ed.2d 657 (1976). But neither this court's opinion nor the record convinces me that the equal opportunity and benefits provided to all by Topeka's neighborhood schools will be improved by the protracted federal court supervision which is sure to follow at the expense of valued local control.[58]See Milliken I, 418 U.S. at 741, 94 S.Ct. at 3125 (recognizing virtues of local control of public education).
Like the district court, I do not think that the constitutional command to eliminate the dual system goes unheeded 35, or even 30, years after Brown I. Within that time, tremendous demographic and social change has affected Topeka and its school system. The school board has demonstrated concern for improving the racial composition in the Topeka schools while retaining the neighborhood school concept. In some cases, the two are not compatible, but in this system substantial integration has been achieved, and the system is now unitary, although not perfect. Because I am not persuaded of a remaining constitutional violation, and I am persuaded that the 955 appellate court has retried the case for a different outcome, I *955 would affirm the district court's judgment declaring the Topeka system unitary at last.[59]Brown, 671 F.Supp. at 1311.
956 *956 Appendix A

957 *957 Appendix B
[1] Statement by William Lamson during trial. Rec., vol. II, at 162-63. Mr. Lamson has done demographic studies in desegregation cases since 1970. His services as an expert have been utilized by the Department of Justice, the Department of H.E.W., the N.A.A.C.P., the A.C.L.U., and various school boards. Rec., supp. vol. 12 pl. ex. 25. In 1975, the defendant Board of Education hired him to put together a ten-year forecast of student enrollments. Rec., vol. II, at 103.
The district court echoed Mr. Lamson's view about the nature of segregation: "[R]acially conscious student assignment with the goal of racial balance has been approved as a remedy in desegregation litigation. This is because school segregation has an inertia which often cannot be countered by a purely neutral force." Brown v. Board of Educ., 671 F.Supp. 1290, 1297 (D.Kan.1987) (citation omitted) (emphasis added).
[2] Section 601 states:
"No person in the United States shall, on the ground of race, color, or national origin be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."
42 U.S.C. § 2000d (1982). The Topeka school district received federal funds through the Kansas State Department of Education.
[3] Linda Brown, a child named plaintiff in the original suit, is now the mother of two intervening child plaintiffs.
[4] Rec., ex. supp. vol. 13, pl. ex. 155 B. The record on appeal consists of pleadings, transcripts, and exhibits. We cite them respectively as "Rec., doc. # ," "Rec., vol. # ," and "Rec., ex. vol. #".
[5] Rec., ex. vol. IV, at 54-56.
[6] Lyman elementary school had been deannexed in 1967. Rec., vol. III, at 281.
[7] Rec., ex. vol. IV, at 134-38.
[8] Percentage of Minority Students In Topeka Elementary Schools In 1985 School Per Cent School Per Cent ----------------------------------------------------------------------- Avondale East 44.1 Lundgren 15.8 Avondale West 16.6 McCarter 9.2 Belvoir 61.9 McClure 7.2 Bishop 10.5 McEachron 10.3 Crestview 8.9 Potwin 7.7 Gage 9.4 Quincy 20.5 Highland Park Central 35.1 Quinton Heights 49.4 Highland Park North 57.9 Randolph 14.8 Highland Park South 28 Shaner 20.7 Hudson 46.55 State Street 26.3 Lafayette 56.8 Stout 26.8 Linn 29.4 Sumner 31.5 Lowman Hill 41.9 Whitson 10.2 27.2% of all elementary students in 1985 were minorities. Source: Rec., ex. vol. IV, at 170-74.
[9] Rec., vol. III, at 306-07. Plaintiffs' expert Lamson used the figures for black rather than minority students in his analysis and testimony. Where we repeat his figures, we therefore refer to black students and white students. We also refer to black students when we discuss pre-1966 numbers, as it is only in that year that figures begin to be available for minority students generally. Otherwise we refer to minority students. See Keyes v. School Dist. No. 1, 413 U.S. 189, 197, 93 S.Ct. 2686, 2691, 37 L.Ed.2d 548 (1973). The parties are in agreement that the difference in analysis between black students and minority students is not significant in this case. Rec., vol. IV, at 409-10; rec., vol. V, at 598, 602-03.
[10] Rec., vol. VII, at 1050.
[11] Id. at 1051.
[12] Rec., ex. vol. II, at 56-57.

[13] Percentage of Minority Students In Topeka Secondary Schools in 1985 Middle Schools Per Cent High Schools Per Cent ---------------------------------------------------------------------------- Chase 33.4 Highland Park 33.6 Eisenhower 48.7 Topeka High 30.9 French 6.2 Topeka West 7.9 Jardine 17.3 Landon* 9.3 Robinson 28.5 The percentage of minority students in all middle schools was 26.9%, while the minority percentage at the high school level was 23.8%. Source: Rec., ex. vol. IV, at 175-77. * Landon is now closed.
[14] See, e.g., Riddick v. School Bd. of the City of Norfolk, 784 F.2d 521, 533 (4th Cir.), cert. denied, 479 U.S. 938, 107 S.Ct. 420, 93 L.Ed.2d 370 (1986); United States v. Texas Educ. Agency, 647 F.2d 504, 506 (5th Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1002, 71 L.Ed.2d 295 (1982); cf. Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 534 & n. 8, 99 S.Ct. 2971, 2977 & n. 8, 61 L.Ed.2d 720 (1979) (whether school district is intentionally operating a dual school system is a question of fact).
[15] The Fifth Circuit defines unitariness as "`a district in which schools are not identifiable by race and students and faculty are assigned in a manner that eliminates the vestiges of past segregation.'" Monteilh v. St. Landry Parish School Bd., 848 F.2d 625, 629 (5th Cir.1988) (quoting United States v. Lawrence County School Dist., 799 F.2d 1031, 1034 (5th Cir.1986)).
[16] Cf. Morgan v. Nucci, 831 F.2d 313, 319 (1st Cir.1987) (considering number of one-race or racially identifiable schools, good faith on the part of the school district, and maximum practicable desegregation); Ross v. Houston Indep. School Dist., 699 F.2d 218, 227 (5th Cir.1983) (considering conditions in district, accomplishments to date, and feasibility of further measures).
[17] The Supreme Court desegregation cases involved school systems in which the degree of segregation was sufficiently great that the parties did not seriously dispute on appeal that the plaintiffs had satisfied their burden on this issue. See Dayton II, 443 U.S. at 529, 99 S.Ct. at 2975 (Dayton public schools "highly segregated by race"); Wright v. Council of City of Emporia, 407 U.S. 451, 455, 92 S.Ct. 2196, 2199, 33 L.Ed.2d 51 (1972) (complete segregation); Swann, 402 U.S. at 24, 91 S.Ct. at 1280 (no challenge to finding of prior dual system); Green v. County School Bd. of Educ., 391 U.S. 430, 435, 88 S.Ct. 1689, 1692, 20 L.Ed.2d 716 (1968) (complete racial identification of schools). The issue was potentially more significant in recent circuit cases in which a school district had been under court order for some time and many of the vestiges of prior de jure segregation had been eliminated. Even in these more recent cases, however, no clear standard has been articulated. See Morgan, 831 F.2d at 319-21 (considering number of one-race schools as part of unitariness determination); Price v. Denison Indep. School Dist., 694 F.2d 334, 347-68 (5th Cir.1982) (discussing need to consider various factors in determining whether constitutionally violative condition of segregation exists).
[18] Given modern urban demography and geography, one-race schools may well have evolved for reasons beyond school board control. See, e.g., Calhoun v. Cook, 522 F.2d 717, 719 (5th Cir.1975). Thus, where a school system consists of de facto one-race schools, rather than de jure, the system is not unconstitutional.
[19] See Morgan, 831 F.2d at 320 (listing standards ranging from 70% to 90% and declining to decide whether 80% or 90% is more appropriate for Boston); Tasby v. Wright, 713 F.2d 90, 91 n. 2, 97 n. 10 (5th Cir.1983) (90% standard for one-race schools; 75% standard for predominantly one-race schools). Swann did not define the term "one-race school," presumably because two-thirds of Charlotte-Mecklenburg's black students attended schools that were 99+% black. See Swann, 402 U.S. at 7, 91 S.Ct. at 1271.
[20] See Morgan, 831 F.2d at 320 n. 7 (rejecting 75% standard in district 72% black); Castaneda v. Pickard, 781 F.2d 456, 461 (5th Cir.1986) (school 97.88% Mexican-American not a vestige of discrimination in district 88% Mexican-American); Ross, 699 F.2d at 220, 226 (affirming finding of unitariness for district 80% minority although 57 out of 226 schools were 90 + % one-race); Price, 694 F.2d at 336, 339-40 (schools not necessarily racially identifiable in district 88% white although 7 out of 8 elementary schools 90 + % white); Calhoun, 522 F.2d at 718-19 (85% black district unitary although more than 60% of schools all or substantially all black).
[21] See Dayton II, 443 U.S. at 529 n. 1, 99 S.Ct. at 2975, n. 1; Milliken v. Bradley, 418 U.S. 717, 726, 94 S.Ct. 3112, 3118, 41 L.Ed.2d 1069 (1974); Ross, 699 F.2d at 226; Lee v. Macon County Bd. of Educ., 616 F.2d 805, 808-09 (5th Cir.1980).

[22] See Morgan, 831 F.2d at 320; Tasby, 713 F.2d at 91 n. 2; Ross, 699 F.2d at 226; Price, 694 F.2d at 364; Stout v. Jefferson County Board of Education, 537 F.2d 800 at 802 (5th Cir.1976).
[23] See Texas Educ. Agency, 647 F.2d at 508; cf. Lee v. Tuscaloosa City School System, 576 F.2d 39 (5th Cir.) (per curiam); United States v. Board of Educ. of Valdosta, Ga., 576 F.2d 37 (5th Cir.) (per curiam) cert. denied, 439 U.S. 1007, 99 S.Ct. 622, 58 L.Ed.2d 684 (1978); Carr v. Montgomery County Bd. of Educ., 377 F.Supp. 1123, 1134 (M.D.Ala.1974), aff'd, 511 F.2d 1374 (5th Cir.) (per curiam), cert. denied, 423 U.S. 986, 96 S.Ct. 394, 46 L.Ed.2d 303 (1975).
[24] See Milliken v. Bradley, 433 U.S. 267, 280 n. 14, 97 S.Ct. 2749, 2757 n. 14, 53 L.Ed.2d 745 (1977); Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 434, 96 S.Ct. 2697, 2703, 49 L.Ed.2d 599 (1976); Swann, 402 U.S. at 24-26, 91 S.Ct. at 1280-81.
[25] See Morgan, 831 F.2d at 320 (noting difficulty of further desegregating schools located in geographically isolated or heavily black sections of Boston); United States v. Lawrence County School Dist., 799 F.2d 1031, 1043-44, 1047 (5th Cir.1986) (considering demography and geography in reversing trial court's refusal to order new student assignment plan). Price, 694 F.2d at 347-68 (authoritatively demonstrating that degree of racial balance is only one of many factors to be considered); Stout, 537 F.2d 800 (affirming remedy leaving three schools one-race because of geographic isolation and barriers); cf. Carr, 377 F.Supp. at 1141 (criticizing formulas for determining racial balance as "highly artificial" and severely disruptive).
[26] See Keyes v. School Dist. No. 1, 413 U.S. 189, 196, 93 S.Ct. 2686, 2691, 37 L.Ed.2d 548 (1973) (what is a segregated school depends on facts of the particular case; faculty and staff percentages and community and administrative attitudes as well as racial composition of student body are relevant); Price, 694 F.2d at 347-68; Lawrence County School Dist., 799 F.2d at 1039-40 (looking to student and faculty percentages and history and location of school).
[27] The dissent mistakenly refers to this as the "Keyes presumption." Dissent at 904, 919-920, 920-21. The Keyes presumption states "that a finding of intentional segregative school board actions in a meaningful portion of a school system ... creates a presumption that other segregated schooling within the system is not adventitious." Keyes, 413 U.S. at 208, 93 S.Ct. at 2697. This is a presumption that is used to establish initial de jure segregation in a case where no statutorily mandated segregation exists. The presumption referenced in the instant case applies only after either statutorily-mandated or policy-based de jure segregation has been established. See id. at 211 n. 17, 93 S.Ct. at 2699 n. 17 (Keyes court making this distinction); see also Tasby v. Wright, 713 F.2d 90, 94 (5th Cir.1983) (district court relied on wrong presumption). The dissent's misunderstanding of this difference has an obvious and critical impact on its assessment of this record. See dissent at 920-21 ("It is clear that to sustain the presumption, the plaintiffs were required to prove `a current condition of segregation from intentional state action'"); id. at 951 ("The court simply has jumped the gun in invoking the Keyes presumption to arrive at the preliminary and critical conclusion that there is a current condition of segregation in Topeka."); see also id. at 951-52 (dire predictions if Keyes presumption is required at the outset). The presumption required here is not the Keyes presumption but the presumption placed on all school districts previously found liable for operating a de jure system.
[28] As one commentator has observed, "[A]mericans share a historical experience that has resulted in individuals within the culture ubiquitously attaching a significance to race that is irrational and often outside their awareness." Lawrence, The Id, the Ego, and Equal Protection: Reckoning With Unconscious Racism, 39 Stan.L.Rev. 317, 327 (1987).
[29] See Wright v. Council of City of Emporia, 407 U.S. 451, 462, 92 S.Ct. 2196, 2203, 33 L.Ed.2d 51 (1972); Davis, 402 U.S. at 37, 91 S.Ct. at 1292; Swann, 402 U.S. at 25, 91 S.Ct. at 1280.
[30] See Pitts v. Freeman, 755 F.2d 1423, 1427 (11th Cir.1985).
[31] See Diaz v. San Jose Unified School Dist., 733 F.2d 660 (9th Cir.1984) (en banc) (castigating school district for consistently choosing more segregative alternatives), cert. denied, 471 U.S. 1065, 105 S.Ct. 2140, 85 L.Ed.2d 497 (1985).

[32] See 20 U.S.C. § 1701 (1982) (declaring it to be the public policy of the United States that neighborhood schools are the appropriate basis for determining public school assignments); Crawford v. Los Angeles Bd. of Ed., 458 U.S. 527, 537 n. 15, 102 S.Ct. 3211, 3217 n. 15, 73 L.Ed.2d 948 (1982); Diaz, 733 F.2d at 677 (Choy, J., dissenting).
[33] See Swann, 402 U.S. at 28, 91 S.Ct. at 1282; Diaz, 733 F.2d at 664.
[34] On remand, the district court in Tulsa County developed a plan to desegregate Tulsa's schools, which we subsequently affirmed. 459 F.2d 720 (10th Cir.1972). The Supreme Court then summarily reversed our affirmance of the proposed plan and remanded for reconsideration in light of Keyes. 413 U.S. 916, 93 S.Ct. 3048, 37 L.Ed.2d 1038 (1973). We then determined that "the factual premise upon which we based our original decision ha[d] been so materially changed both by lapse of time and the specific and voluntary actions taken by the School Board and the students themselves that our further consideration under the present record would serve no useful purpose." 492 F.2d 1189 (10th Cir.1974). We remanded to the district court for such further proceedings as might be necessary to bring the school district in conformity with the Keyes mandate. Our original decision overturning the district court's finding of no constitutional violation remains the law of this circuit.
[35] See Morgan, 831 F.2d at 328-29 (racial neutrality is "unreliable talisman"); Diaz, 733 F.2d at 664 (adherence to neighborhood plan not determinative on question of segregative intent); Adams v. United States, 620 F.2d 1277, 1285-86 (8th Cir.1980) (en banc) (adoption of neighborhood school plan did not fulfill duty to desegregate); cf. Pitts, 755 F.2d at 1426 (mere adoption of desegregation plan insufficient to render a dual system unitary).
[36] See Columbus Bd. of Educ., 443 U.S. 449, 462 & nn. 9-11, 99 S.Ct. 2941, 2949 & nn. 9-11, 61 L.Ed.2d 666 (1979); Swann, 402 U.S. at 28, 91 S.Ct. at 1282; Diaz, 733 F.2d at 667-71; Tulsa County, 429 F.2d at 1256-57.
[37] See Swann, 402 U.S. at 21, 28, 91 S.Ct. at 1278, 1282; Adams, 620 F.2d at 1286.
[38] See also Columbus, 443 U.S. at 459-60, 99 S.Ct. at 2947-48 ("In Swann, it should be recalled, an initial desegregation plan had been entered in 1965 and had been affirmed on appeal. But the case was reopened, and in 1969 the school board was required to come forth with a more effective plan"); United States v. Lawrence County School Dist., 799 F.2d 1031, 1043 (5th Cir.1986) ("the adoption of the plan does not exhaust the power of the court to direct elimination of vestiges of segregation that remain or become apparent only after the plan has been put into place"); Pitts, 755 F.2d at 1426.
[39] See Adams, 620 F.2d at 1288-91 (intact busing, school site selection, block busing, transfer policy, and segregated faculty assignments); Higgins v. Board of Educ., 508 F.2d 779, 787 (6th Cir.1974) (listing segregative techniques); Tulsa County, 429 F.2d at 1257 (transfer policy).
[40] See Ross, 699 F.2d at 222, 227; Price, 694 F.2d at 351-53; cf. Diaz, 733 F.2d at 672-73 (criticizing school district for implementing none of desegregation proposals made by citizens' committee).
[41] See Columbus, 443 U.S. at 463 n. 12, 99 S.Ct. at 2949 n. 12 (Board refused to seek advice on desegregation or implement recommendations); Morgan, 831 F.2d at 321 (noting cooperation with court orders); Diaz, 733 F.2d at 671-74 (manipulation of committee studying segregation; statements suggesting failure of bond issue would lead to forced busing); Ross, 699 F.2d at 222-23 (school district appointed community task force to develop magnet plan, opposed efforts to disrupt integration plans, and promoted interdistrict transfer).
[42] See Davis, 402 U.S. at 37, 91 S.Ct. at 1292; Morgan, 831 F.2d at 322-25; Ross, 699 F.2d at 224-25.
[43] See Morgan, 831 F.2d at 324; Ross, 699 F.2d at 225.
[44] See Morgan, 831 F.2d at 322-25; Riddick, 784 F.2d at 532-34; Calhoun, 522 F.2d 717.
[45] See Ross, 699 F.2d at 224 (further remedial efforts would be unreasonable and inadequate); Calhoun v. Cook, 525 F.2d 1203, 1203 (5th Cir.1975) (per curiam) ("It would blink reality ... to hold the Atlanta School System to be nonunitary because further integration is theoretically possible and we expressly decline to do so.").
[46] For example, the district court stated:

"Although, on its face, the construction of schools, particularly on the west side of the district, appears to have promoted racial separation, the court does not believe that the district's school construction policy was intended to maintain or promote segregation."
671 F.Supp. at 1300 (emphasis added).
[47] The dissent has fallen into the same error, as we have discussed supra at 862-63 & n. 27. The dissent also asserts that we should have remanded to let the district court make appropriate findings in accordance with the presumption and burden-shifting principles we believe apply. Dissent at 890. "But fact findings made under an erroneous view of the law or in the absence of a defined legal standard are not binding on appeal." Oil, Chemical & Atomic Workers v. Amoco Oil Co., 885 F.2d 697, 710 (10th Cir.1989) (Baldock, J., dissenting and urging reversal of trial court's fact findings on grounds it applied erroneous view of legal standard).
[48] See, e.g., 671 F.Supp. at 1298-99 ("the use of space additions was consistent with a race-neutral neighborhood policy.... [I]t has not been shown that space additions were intentionally used to promote segregation...."); id. at 1300 ("The court believes the siting of Topeka West High School was a race-neutral decision."); id. at 1301 ("The district has consistently applied race-neutral, neighborhood school principles to the demarcation of attendance zones."); id. at 1309 ("The court does not believe the district's conduct over thirty years indicates a desire to perpetuate segregation by foregoing opportunities to desegregate schools.").
[49] The dissent recognizes this holding in Swann, dissent at 913, but emphasizes that Swann was a remedial case. As we have previously pointed out, one of the dissent's major errors is its treatment of this case as if plaintiffs were required to establish an initial case of de jure segregation. This is a remedy case. The question presented is whether the school board has remedied the de jure segregation that existed in 1954. One thing is abundantly clear: Creating neighborhood schools in 1954 did not integrate the Topeka schools. See supra at 856 (Three of the four previously all-black schools remained all-black or virtually so under the new neighborhood school policy.); see also Adams, 620 F.2d at 1281 (St. Louis post-Brown neighborhood school plan did not change segregated nature of the system. "Those pre-Brown white schools located in the black neighborhoods ... turned virtually all black immediately after the plan was implemented.").
[50] The dissent argues that it is the district court's job, not ours, to decide which party's experts are more believable. We, of course, agree. In reaching our conclusion that the district court was clearly erroneous in its determination that the Topeka school system has become unitary, we did not rely on the experts' opinions but rather on the undisputed statistics about the racial makeup of the various schools and their faculty/staffs, and the basically uncontroverted evidence about what the school board did, or failed to do, to meet its affirmative duty to dismantle the segregated system.
[51] We are similarly convinced that the dissent's review of the record is colored by its erroneous understanding of the burdens of proof and the role of intent. See supra at 862-63 & n. 27.
[52] The dissent is favorably impressed that only three of 34 Topeka schools currently have majority-minority populations. Dissent at 950. The dissent is similarly impressed that of the eight schools that plaintiffs identified at trial as racially identifiable minority, white students make up 49.3% of the total student population at these schools. Dissent at 936. We are not so favorably impressed. In a school system with a 26% minority student population, we think the number of schools in Topeka that approach or are over the 50% minority mark constitute persuasive evidence that the school system has not met its duty to desegregate.
[53] Plaintiffs do not contest the district court's finding that the Topeka school system is unitary with respect to facilities, extracurricular activities, curriculum, transportation, and equality of education. See Brown, 671 F.Supp. at 1307-08. There are currently no optional attendance zones, and the district's transfer policy is a majority-tominority program. See id. at 1298.
Plaintiffs commissioned a public opinion survey in order to determine whether Topekans perceive some schools as black/minority and others as white, whether they perceive some schools as providing an inferior education, and whether there is a correspondence between the two. While the results of the survey provide some support for plaintiffs' contentions, the survey was extensively criticized as unreliable by several of the school district's

experts. The district court discussed additional flaws and concluded that the survey was not strong evidence of the existence of segregation. 671 F.Supp. at 1305-06. We see no error in that conclusion. We therefore disregard the survey results.
[54] The dissent attacks the use of a +-15% deviation from the district average of minority students to assess the racial identifiability of the schools, while at the same time conceding that "[t]he trial judge seems to have analyzed the plaintiffs' case in part with a +-15% standard," dissent at 921. In Swann, the Court accepted the district-wide average of 71% white/29% black, with no deviation, as an acceptable starting point for the district court in shaping a remedy. 402 U.S. at 24-25, 91 S.Ct. at 1280-81. Where, as here, the school district has been held liable for imposing an unconstitutional segregated school system, we believe it perfectly reasonable to use a +-15% deviation in assessing whether the school system ever achieved unitariness.
[55] The school district also offered two indices as a measure of desegregation in Topeka's schools. Rec., vol. XIII, at 2574-80. The dissimilarity index measures how dissimilar schools are compared to the district's mean. Rec., vol. IV, at 558. The exposure index is a measure of the potential for interracial contact. The indices are measures of system-wide desegregation, however; they say nothing about the racial balance in individual schools. Rec., vol. IV, at 554-57; rec., vol. XIII, at 2581. The dissent places great reliance on these indices, pointing out that they have shown significant improvement since 1954. Dissent at 923-25. Defendants' expert Dr. Armour agreed, however, that the indices are only summary measures, rec., vol. XIII, at 2623-24, and conceded that it is possible to have a school system with a good exposure index that nonetheless contains an all-black school, id. at 2653-54. Therefore, even if a school system has relatively good rates on these indices, it is still necessary to look at the racial statistics at individual schools to get a true picture.
[56] The range used by plaintiffs was very narrow, and it was extremely difficult for any school to fall within it. In 1985, for example, only four of the twenty-six elementary schools were not racially identifiable under plaintiffs' standard. While it is appropriate to use a harsher standard for analyzing faculty assignments than student assignments, since the school district may assign faculty as it sees fit, plaintiffs' standard is simply too difficult to meet in this case. We note, moreover, that the school district is limited to some extent in its ability to assign faculty because different teachers are certified in different fields. This is particularly true at the secondary level.
[57] Minority Faculty/Staff In Topeka's Elementary Schools, 1985-86 School Total Minority Per Cent ----------------------------------------------------------------------- Avondale East 31.4 10.45 33.3 Avondale West 25.8 1.0 3.9 Belvoir 25.95 3.85 14.8 Bishop 23.8 .4 1.7 Crestview 31.65 3.4 10.7 Gage 21.0 1.0 4.8 Highland Park Central 34.6 3.9 11.3 Highland Park North 28.6 5.5 19.2 Highland Park South 29.2 5.4 18.5 Hudson 19.75 3.8 19.2 Lafayette 32.6 5.65 17.3 Linn 17.8 .3 1.7 Lowman Hill 25.6 6.5 25.4 Lundgren 21.55 2.8 13.0 McCarter 27.4 3.0 10.9 McClure 25.1 0.0 0.0 McEachron 23.5 1.0 4.3 Potwin 14.15 2.0 14.1 Quincy 32.35 1.0 3.1 Quinton Heights 20.4 4.4 21.6 Randolph 27.0 1.0 3.7 Shaner 21.9 2.0 9.1 State Street 22.9 1.3 5.7 Stout 20.6 2.0 9.7 Sumner 23.3 1.85 7.9 Whitson 35.35 1.0 2.8 Average minority faculty/staff: 11.2%. Rec., ex. vol. IV, at 261.
[58] Minority Faculty/Staff In Topeka's Secondary Schools, 1985-86 School Total Minority Per Cent ----------------------------------------------------------------------- Chase 40.5 7.45 18.4 Eisenhower 65.25 12.1 18.5 French 42.6 2.4 5.6 Jardine 39.65 3.8 9.6 Landon 31.1 3.0 9.6 Robinson 49.35 12.2 24.7 Highland Park 118.25 13.65 11.5 Topeka 150.1 25.5 17.0 Topeka West 120.0 3.0 2.5 Average minority faculty/staff: 12.65%. Rec., ex. vol. IV, at 262.
[59] The racially identifiable schools in 1985-86 under the ±15% standard were as follows:

1985-86

Elementary Schools (26)

Min

W

Total

% Min

Belvoir Highland Park North Lafayette Quinton Heights

146

90

236

61.9

179

130

309

57.9

217

165

382

56.8

129

132

261

49.4

Hudson

108

Avondale East

128

Lowman Hill

155

Bishop

36

McEachron

30

Whitson

38

Gage

25

McCarter

35

Crestview

32

Potwin

18

McClure

23

Rec., ex. supp. vol. 13, pl. ex. 155 D.

124

232

46.6

7 schools

162

290

44.1

ident. minority

215

370

41.9

by enrollment

306

342

10.5

261

291

10.3

334

372

10.2

240

265

9.4

347

382

326

358

215

233

296

319

9.2

8 schools

8.9

ident. white

7.7

by enrollment

7.2

1985-86

Secondary Schools (9)

Min

W

Total

% Min

Eisenhower 218

230

448

48.7

1 school ident. minority by enrollment

Landon Topeka West High School French

21

205

120

1391

16

241

226

9.3

3 schools

ident. white

1511

7.9

by enrollment

257

6.2

Id. pl. ex. 155 G.

When the schools in these tables are looked at in notes 57 and 58 supra, one sees that all but one of the racially identifiable minority elementary and junior high schools have minority faculty/staff percentages ranging from 17.3% to 33.3%. Six of the schools identified as racially identifiable white have minority faculty/staff percentages ranging from 0.0% to 5.6%.

[60] For two of these schools, Gage and Potwin, the district court specifically found that they have been predominantly white schools since the Supreme Court's decision in this case, and remain predominantly white schools adjacent to schools with higher-than-average minority student population. 671 F.Supp. at 1303.

[61] We do not consider this part of our opinion necessarily in conflict with the district court's conclusion that there is no illegal segregation in Topeka, because the court did not separately consider the issue of current segregation apart from the question of causation. As we previously pointed out, the district court did find the existence of racial disparities in school enrollment and staff/faculty assignment. See supra at 867, 869. Our disagreement with the district court is chiefly on the significance of these findings in a school district with Topeka's history, and bearing the weight of a presumption against it which the district court failed to accord.

[62] Thus, one of the school district's experts, after reluctantly admitting that Lowman Hill elementary school's attendance boundaries were drawn in the 1950s with the effect of encompassing the only two areas of black population in that part of Topeka, and that the school was long surrounded by other schools with few to no black students, objected that "the boundaries of those school districts [were] in place." Rec., vol. XI, at 2345.

[63] See Dayton II, 443 U.S. at 539 n. 11, 99 S.Ct. at 2980 n. 11 ("[F]aculty segregation disappeared completely only after efforts of the Department of Health, Education, and Welfare."); Columbus, 443 U.S. at 461 & n. 8, 99 S.Ct. at 2948 & n. 8 (practices of assigning black teachers to schools with substantial black populations and creating optional attendance zones to permit white students to avoid predominantly black schools ceased respectively only after Ohio Civil Rights Commission complaint and the instant lawsuit); Tasby, 713 F.2d at 93 ("` [T]he District has never voluntarily moved to desegregate the Dallas school system; every step toward desegregation has been due to court action.'").
[64] In 1955, 3 elementary schools were 99 + % black and 14 elementary schools were 90 + % white for a total of 17 out of the 23 elementary schools. In 1966, 1 elementary school was 90 + % minority and 19 elementary schools were 90 + % white, for a total of 20 out of the 35 elementary schools. Rec., ex. vol IV, at 39-40, 54-56. Pages 30-181 of volume IV of the exhibits consist of student enrollments for individual schools from 1950 to 1985. We henceforth refer to this part of the record as Student Tables.
[65] In 1955, about half of Topeka's black students attended three schools that were 99+% black. In 1966, approximately the same percentage of minority students attended one 90+% minority school and three 50-80% minority schools. Student Tables, 1955, 1966.
[66] Rec., vol. XI, at 2326.
[67] Student Tables, 1966, 1974. Lyman elementary school was deannexed during this period.
[68] In 1966, Belvoir elementary school had 59.7% minority students and Lafayette elementary school had 54.5% minority students. By 1974, Belvoir had 67.1% minority students and Lafayette had 68.9%. At the secondary level, Crane junior high rose from 34.45% minority in 1966 to 52.9% in 1974, while East Topeka junior high remained more than 60% minority. Student Tables, 1966, 1974.
[69] Rec., vol. V, at 12-14.
[70] Rec., vol. XII, at 2485-91; rec., ex. vol. V, at 245-47.
[71] Topeka's dissimilarity index for elementary schools dropped from 62.1 in 1955 to 51.6 in 1975, a drop of approximately 10 points. In 1981 the index stood at 40.8. Topeka's relative exposure index for elementary schools fell from 47.7 in 1955 to 27.1 in 1975, and further to 17.2 in 1981. These drops indicate that the school system as a whole was becoming less segregated. Rec., ex. vol. II, at 156-57.
[72] Student Tables, 1975, 1981; compare rec., ex. vol. I, at 48-B (1974 map) with id. at 49-A (1979 map; no change to Bishop, Avondale West, or Lundgren).
[73] Student Tables, 1985 (McEachron and Whitson).
[74] Rec., vol. XII, at 2473-75.
[75] Plaintiffs point to the school board's refusal to adopt two desegregative reorganization plans proposed in 1984 by the Topeka school administration as evidence that the district is not presently committed to desegregation. These plans were violently opposed by minorities and whites alike because they would have destroyed the neighborhood school system, and we do not believe that the failure to adopt them reflects a current lack of commitment to desegregation. Nevertheless, the proposal of plans described as completely unworkable by a then-member of the Board does not satisfy the district's duty to desegregate its schools.
[76] Two elementary schools with more than 80% minority students were closed (Monroe 1975, Parkdale 1978) and the target minority percentages approved by HEW in 1976 have either been met or improved on. Compare rec., ex. vol. V, at 37 (projected enrollments of elementary schools under plan designed to satisfy HEW) with Student Tables, 1985. It should be noted that HEW did not approve the projected enrollments of more than 70% minority for Lafayette and Belvoir under the plan cited above. Rec., ex. vol. II, at 173. In the last five years, minority enrollments have increased in the primarily white schools, bringing them towards or over 10% minority, while the percentage of minority students at disproportionately minority schools has remained steady or dropped

slightly. Student Tables, 1980-1985. The difference between schools that are more heavily minority and those that are primarily white have thus been narrowing.
[77] Cf. Stout v. Jefferson County Bd. of Educ., 537 F.2d 800 (5th Cir.1976) (mountain range and dangerous roads).
[78] Cf. Morgan v. Nucci, 831 F.2d 313, 320 (1st Cir.1987) (racially identifiable schools in heavily black areas or cut off by harbor); Ross v. Houston Indep. School Dist., 699 F.2d 218, 224 (5th Cir.1983) (segregated schools located at opposite ends of large urban school district).
[79] We do not mean to suggest that the school district has not faced opposition on other grounds. Both the reorganization of the late 1970s and two plans proposed in 1984 for further reorganization were met by community resistance. Rec., vol. XIII, at 2437-38.
[80] Cf. Tasby v. Wright, 713 F.2d 90, 93 (5th Cir.1983); Ross, 699 F.2d at 222.
[81] Rec., vol. XII, at 2418 (Board member 1957-1965: no discussions on segregative or desegregative effects of actions); rec., vol. XII, at 2440-41 (Board member 1977-1985: Board voted for open enrollment plan although warned it might have segregative effect); rec., vol. XII, at 2491 (Board member 1973-1977: Board resisted HEW efforts because it considered system unitary then).
[82] Rec., vol. XII, at 2423.
[83] Brown II, 349 U.S. at 301, 75 S.Ct. at 757; Green, 391 U.S. at 437-38, 88 S.Ct. at 1693-94.
[84] According to Dr. Foster, the school district administrator in charge of personnel for 1984 stated in a deposition that he had "no knowledge of an assignment policy regarding assignment of minority personnel." Rec., vol. V, at 632. The school district does not deny that there was no policy directed expressly at assignment. Instead, it claims that its 1963 policy against discrimination in recruitment was broad enough to cover assignment. Rec., vol. X, at 1517; rec., vol. XII, at 2428-29; rec., vol. XII, at 2692-99; rec., ex. vol. II, at 58-59; rec., ex. vol. IV, at 217-19.
[85] Clay closed in 1975. At the time, Clay had approximately 25% minority students while Lowman Hill had approximately 45%. Rec., vol. III, at 282-83. Student Tables, 1975. Polk closed in 1979, and Central Park in 1980. Rec., vol. III, at 290-92.
[86] Student Tables, 1966-1985.
[87] Student Tables, 1966-1985.
[88] Rec., vol. III, at 249-51, 254-55. The area assigned to Quinton Heights when Van Buren closed was apparently empty of people at the time. The school district had already extended Quinton Heights into Van Buren's attendance area before Van Buren was closed, however. Rec., vol. III, at 251-53.
[89] Rec., vol. I, at 48.
[90] Rec., vol. III, at 291-92, rec., vol. X, at 1536, rec., ex. vol. V, at 227.
[91] Rec., ex. vol. I, at 48.
[92] The schools are Bishop, Crestview, Gage, McCarter, McClure, McEachron, Potwin, and Whitson.
[93] Bishop was 10.5% minority, McEachron was 10.3% minority, and Whitson was 10.2% minority.
[94] See, e.g., Morgan v. Nucci, 831 F.2d at 323 ("little more can be done to integrate these schools given the available numbers of white students"); Ross v. Houston Indep. Sch. Dist., 699 F.2d at 229 (district court concluded that further measures would be impractical).
[95] See, e.g., United States v. Lawrence County School Dist., 799 F.2d at 1047 ("greater balance of students by race achievable").

[96] Cf. Morgan v. Nucci, 831 F.2d 313 (1st Cir.1987) (harbour and concentration of black population in certain districts); Stout v. Jefferson County Bd. of Educ., 537 F.2d 800 (5th Cir.1976) (mountain range and dangerous roads).
[97] In this regard, the district court questioned defendants' expert Dr. Armour about these possibilities. The questions and answers are instructive:
"THE COURT: ....
"Let me ask you a layman's question here. Say we have a school that has a 55 percent minority or 60 percent minority, and we want to change that situation, and try to get it down below 50 percent minority. Has there been any experience in anything that you have run into where they have gone into what you might call a voluntary busing program where you would ask the people in that community voluntarily to come forward, and allow their children to go to another area to try to redress the racial 0907 have you had any experience on that, or do you know of any experiences on that, or is that fanciful to think that that might happen?
THE WITNESS: Not at all. In fact that can be done. It can be done without the mandatory assignment, and has been done in many school districts, in fact with schools a lot more imbalanced than 55 percent minority.
What you try to do in those cases is two-fold. One, you have an M to M program usually with transportation provided. You really encourage and do a lot of publicity and a lot of encouragement of the minority transfers out of that school, so that helps by reducing the minority population because they will frequently 0907 minority students will frequently, given the incentives, transfer out of that school to a predominantly white school in a different part of the district.
Other [sic] thing you do in a school like that generally that is successful is you put a special program in a magnet, call them a magnet program. White parents or white students will generally not transfer out of a predominantly white area neighborhood school into a school that is predominantly minority without an academic incentive, usually because they unlike some of the minority parents they feel their school is doing a fine job. So you will need to offer an attractive program. We have learned that computer science magnets, business, health professions. Depending upon the grade level, there are programs that are very attractive to white parents, and will actually induce them to transfer into that school.
The combination of those two can frequently bring a school into the composition that you want."
Rec., vol. XII, at 2638-39 (emphasis added).
[98] Rec., vol. VI, at 794-801.
[99] The faculty/staff analysis was performed for 1981, the only year for which there is faculty-alone data. Dr. Foster concluded that the movement of 25 faculty/staff, or approximately 3% of total faculty/staff, would satisfy plaintiffs' formula. This 25 includes the movement both out of and into schools. Rec., vol. V, at 663-64; rec., vol. VI, at 764-67, 773-74.
[100] Section 601 reads:
"No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."
42 U.S.C. § 2000d (1982).
[101] The state had been dismissed as a party to the action in 1979. Brief of Appellee John Carlin at 3.
[102] See Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (affirming remedy based in part on state liability); Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (state provided funds for transporting white students but not for desegregative busing, enacted laws designed to delay desegregation plan and maintain segregation, rescinded city's voluntary desegregation plan, and approved

school sites and construction with segregative results); Liddell v. State of Missouri, 731 F.2d 1294, 1298 (8th Cir.) (state constitution mandated segregation until 1976 and state took no action to desegegate schools after Brown I ), cert denied, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984); Los Angeles Branch NAACP v. Los Angeles Unified School Dist., 714 F.2d 946, 948 n. 2 (9th Cir.1983) (listing state policies and acts that helped to maintain segregation), cert. denied, 467 U.S. 1209, 104 S.Ct. 2398, 81 L.Ed.2d 354 (1984). Furthermore, in both Milliken and Los Angeles Branch NAACP there was clear state law giving the state, as opposed to local school authorities, a prominant role. See Milliken, 418 U.S. at 726 n. 5, 94 S.Ct. at 3118 n. 5 (Michigan constitution assigns "the whole subject" of education to the state); Los Angeles Branch NAACP, 714 F.2d at 949 (listing California cases detailing responsibility of state organs to aid in desegregation).
[103] Reply Brief for Plaintiffs-Appellants, plaintiff's exhibits 45, 47.
[104] See, e.g., rec., ex. vol. II, at 190-235.
[1] Mr. Lamson is a demographic consultant, whose principal source of income is fee applications from desegregation cases. Rec. ex. vol. V at 4; vol. II at 372. Mr. Lamson does not appear to have pursued any formal study in the field of demographics; indeed, his resume candidly reports that he has no degrees, advanced or undergraduate. Rec. supp. vol. XII at 4. Despite Mr. Lamson's previous service in this field as outlined by this court, Court's Opinion at 854 n. 1, the district court was free to accept or reject his conclusions.
While the district court acknowledged that segregation may continue of its own inertia, id. (quoting Brown v. Board of Educ., 671 F.Supp. 1290, 1296 (D.Kan.1987)), the district court specifically found that segregation had not so continued in this school district, rather "the effects of de jure segregation have been substantially countered." Brown, 671 F.Supp. at 1296.
[2] The record on appeal in this case generally will be identified as Rec. vol. # or supp. vol. #, indicating pleadings or transcript. Selected exhibits, which were paginated and bound by the parties in five volumes, will be identified as Rec. ex. vol. #.
[3] The difference between de jure and de facto segregation has been described as follows:
De jure ("by law") segregation is racial separation which is the product of some purposeful act by governmental authorities. De facto ("by the facts") segregation occurs because of housing and migration patterns and is unconnected to any purposeful governmental action to racially segregate schools.
2 R. Rotunda, J. Nowak & J. Young, Treatise on Constitutional Law § 18.9 at 413 (1986); see also Keyes v. School Dist. No. 1, 413 U.S. 189, 208, 93 S.Ct. 2686, 2697, 37 L.Ed.2d 548 (1973); Swann v. CharlotteMecklenburg Bd. of Educ., 402 U.S. 1, 17-18, 91 S.Ct. 1267, 1276-77, 28 L.Ed.2d 554 (1971). De jure segregation violates the equal protection clause, but "if a school district becomes unintentionally (de facto) segregated, there is no constitutional violation." R. Rotunda, J. Nowak & J. Young, supra, at 413.
[4] At the time of the district court hearing in Dayton II, 44.6% of the students were black, 47 out of 68 schools were virtually one race (22 black and 25 white). Dayton II, 443 U.S. at 529-30, n. 1, 99 S.Ct. at 2974-75 n. 1. This pattern of one-race schools in a system that was almost evenly composed of white and black students was present in 1951-52, 1963-64 and 1971-72. Id. at 537, 99 S.Ct. at 2979.
[5] In allowing the current plaintiffs to intervene in this action, the trial judge correctly discussed the presumption and burden shifting principles potentially applicable to this case. Brown v. Board of Educ., 84 F.R.D. 383, 399-400, 401-02 (D.Kan.1979).
[6] Trial of this matter lasted from October 6 to October 31, 1986, and consisted of the testimony of 37 witnesses, including 11 experts, and hundreds of exhibits. A 3,000 page trial transcript in 18 volumes was filed at the district court.
[7] The court relies on United States v. Board of Educ. (Tulsa I), 429 F.2d 1253 (10th Cir.1970) (Lewis, C.J.) for the proposition that "when minorities are concentrated in certain areas of the city, neighborhood school plans may be wholly insufficient to fulfill the district's affirmative duty to eliminate the vestiges of segregation." Court's Opinion at 864. To the extent that the court implies that this circuit has premised constitutional liability on de facto

segregation, the court is in error. In Tulsa I, the court required that neighborhood plans evolve "from racially neutral demographic and geographical considerations," and that the board adhere "solely to those stated considerations in implementing and updating the neighborhood policy." Id. at 1258. The Tulsa system failed both tests. The court first determined that enforcement of restrictive covenants and discriminatory housing practices were responsible for the concentration of blacks in north Tulsa. Tulsa I at 1255. In a clear attempt to circumvent Brown I and Brown II, the board drew boundaries for the 1955-56 school year which corresponded precisely with the previously segregated system. Id. at 1255-56. These "superimposed" attendance zones were designed to maintain racial segregation, and were hardly neutral. Moreover, the neighborhood system was inconsistent with its stated objectives. Id. at 1256, 1259.
In United States v. Board of Educ. (Tulsa II), 459 F.2d 720 (10th Cir.1972) (Lewis, C.J.), vacated, 413 U.S. 916, 93 S.Ct. 3048, 37 L.Ed.2d 1038 (1973), the court made it clear that it did not intend to change the rule in this circuit concerning neighborhood schools. The court cited Tulsa I and other Tenth Circuit cases for the following proposition:
The law of this circuit has been consistently stated by the court to be that neighborhood school plans, when impartially maintained and administered, do not violate constitutional rights even though the result of such plans is racial imbalance.
Id. at 724. Of course, Tulsa II was vacated for reconsideration in light of the Keyes presumption which held that "a finding of intentionally segregative school board actions in a meaningful portion of a school system ... creates a presumption that other segregated schooling within the system is not adventitious." Keyes, 413 U.S. at 208, 93 S.Ct. at 2697. Racial imbalance in a neighborhood school plan does not in and of itself support a constitutional violation. Indeed, the Court has consistently refused to consider whether racial imbalance inherent in a neighborhood school policy will support a constitutional violation in the absence of a finding of current de jure segregation in some part of the school system. Keyes, 413 U.S. at 212, 93 S.Ct. at 2699 ; Swann, 402 U.S. at 23, 91 S.Ct. at 1279.
[8] The total enrollment for all USD 501 programs has declined over the recent years. Enrollment for the 1985-86 school year was 41.6% less than the peak enrollment in 1969-70.

Total Enrollment U.S.D. 501

Year

Students

Year

Students

Year

Students

1953-54 1954-55
1966-67 1967-68 1968-69 1969-70 1970-71

11,977 12,517
24,631 25,255 25,737 25,847 25,002

1971-72 1972-73 1973-74 1974-75 1975-76 1976-77 1977-78 1978-79

24,183 23,060 21,751 20,596 20,242 19,293 18,383 17,480

1979-80 1980-81 1981-82 1982-83 1983-84 1984-85 1985-86

16,875 16,408 15,960 15,670 15,264 15,106 15,103

Rec. ex. vol. IV at 34, 36, 57, 61, 65, 69, 73, 77, 81, 85, 89, 92, 96, 100, 104, 108, 112, 133, 145, 157, 169 & 181.

[9] Racial Inventory of U.S.D. 501 Elementary Students School Year 1955-56 School Black White Total % Black Buchanan 88 0 88 100.0 Central Park 16 354 370 4.3 Clay 20 180 200 10.0 Crestview 0 687 687 0 Gage 0 645 645 0 Grant 75 296 371 20.2 Lafayette 47 314 361 13.0 Lincoln 73 438 511 14.3 Lowman Hill 46 242 288 15.9 Lundgren (Oakland) 0 436 436 0 Monroe 149 0 149 100.0 Parkdale 67 240 307 21.8 Polk 2 227 229 .9 Potwin 0 441 441 0 Quincy 34 407 441 7.7 Quinton Heights 23 308 331 6.9 Randolph 2 543 545 .4 State Street 27 504 531 5.1 Stout 0 263 263 0 Sumner 7 312 319 2.2 Van Buren 42 206 248 16.9 Washington 172 1 173 99.4 Whitson 8 716 724 1.1 _____ ______ ______ _______ Total 898 7,760 8,658 10.4 ===== ====== ====== =======

Rec. ex. vol. IV at 39-40.
[10] Racial Inventory of U.S.D. Junior High Students School Year 1955-1956 School Black White Total % Black E. Topeka 136 313 449 30.3 Crane 75 292 367 20.4 Boswell 55 454 509 10.9 Curtis 35 235 270 12.9 Holliday 9 335 344 2.6 Roosevelt 9 491 500 1.7 Capper 1 407 408 0.2 ___________ _____ _____ ______ _______ Total 320 2,527 2,847 11.2 ===== ===== ====== =======
Rec. supp. vol. II at 186 (Lamson Report). This information also appears in supp. vol. XI at 186. Although Mr. Lamson's report appears in a pleading at supp. vol. II, I ordered supp. vol. XI, which is the report as admitted into evidence by the district court. Henceforth, I will refer to the report as contained in supp. vol. XI.
[11] Racial Inventory of USD 501 Elementary Students School Year 1968-69 School Minority White Total % Minority Avondale East 107 445 552 19.38 Avondale Southwest 14 457 471 2.97 Avondale West 7 568 575 1.22 Belvoir 294 224 518 56.76 Bishop 15 488 503 2.98 Central Park 65 298 363 17.91 Clay 46 180 226 20.35 Crestview 5 525 530 0.94 Gage 2 393 395 0.51 Grant 121 215 336 36.01 H.P. Central 140 533 673 20.80 H.P. North 145 368 513 28.27 H.P. South 37 570 607 6.10 Hudson 23 312 335 6.87 Lafayette 275 247 522 52.68 Linn 35 369 404 8.66 Lowman Hill 174 210 384 45.31 Lundgren 7 395 402 1.74 McCarter 3 548 551 0.54 McClure 3 493 496 0.60 McEachron 6 471 477 1.26 Monroe 172 58 230 74.78 Parkdale 377 38 415 90.84 Polk 30 174 204 14.71 Potwin 5 362 367 1.36 Quincy 61 313 374 16.31 Quinton Heights 103 192 295 34.92 Randolph 3 521 524 0.57 Rice 30 293 323 9.29 Sheldon 17 287 304 5.59 State Street 155 400 555 27.93 Stout 7 365 372 1.88 Sumner 38 248 286 13.29 Whitson 3 433 436 0.69 _____ ______ ______ _______ Total 2,525 11,993 14,518 17.39 ===== ====== ====== =======
Rec. ex. vol. IV at 62-63.
[12] Racial Inventory of USD 501 Junior High Students School Year 1968-69 School Minority White Total % Minority Boswell 85 490 575 14.78 Capper 2 565 567 0.35 Crane 133 201 334 39.82 Curtis 83 169 252 32.94 East Topeka 339 222 561 60.43 Eisenhower 47 476 523 8.99 Highland Park 111 444 555 20.00 Holliday 89 324 413 21.55 Jardine 12 896 908 1.32 Landon 7 500 507 1.38 Roosevelt 27 445 472 5.72 ____ _____ _____ _______ Total 935 4,732 5,667 16.50 ==== ===== ====== ======
Rec. ex. vol. IV at 64.
[13] Racial Inventory of USD 501 Senior High Students School Year 1968-69 School Minority White Total % Minority Highland Park 220 1,202 1,422 15.47 Topeka 584 1,480 2,064 28.29 Topeka West 10 1,552 1,562 0.64 ___ _____ _____ _____ Total 814 4,234 5,048 16.13 === ===== ===== =====
Rec. ex. vol. IV at 65.
[14] The initial data concerning the 1955-56 school year only contained information about black and white enrollment. As noted in the court's opinion at 12 n. 9, in years subsequent to 1966, the board began keeping data on whites and minorities more broadly defined. See rec. vol. IV at 432. Contrary to the court's assertion, however, it is far from clear that the "parties are in agreement that the difference between black and minority students is not significant." Id.; see rec. vol. IV at 562, 566 & 572. Minority students in 1985-86 number 3,919 (25.95%) of the 15,103 students. Of the minority amount, 2,784 (18.43%) are black; 758 (5.02%) are hispanic; 240 (1.59%) are American Indian; and 137 (.91%) are Asian American. Rec. ex. vol. IV at 181.
In Dowell v. Board of Educ., No. 88-1067, slip op. at 7, 7 n. 2, 22, 32, 44 (10th Cir. filed Oct. 6, 1989), this court declined to aggregate the number of minority students of different races for purposes of analyzing the racial composition of the Oklahoma City elementary schools. See id. dissent at 892-96 (Baldock, J., dissenting) (arguing that aggregation appropriate). The Supreme Court has indicated that minority groups should be treated together for the purpose of applying desegregation law. See Keyes, 413 U.S. at 195-98, 93 S.Ct. at 2690-92. Thus, the court's approach to aggregation in this case is consistent with Supreme Court authority, but inconsistent with our own precedent in Dowell.
[15] The Adventure Center seeks to emulate adult society by combining students from five or six different schools from various parts of Topeka and assigning the students various jobs in a model economy. Rec. supp. vol. VII at

2109-10, 2144. In the Adventure Center, all students become productive members of society by holding various "salaried" jobs. Id. at 2110. Students in third grade spend two days a year at the Adventure Center; students in fifth grade spend two weeks, and all students participate. Id. at 2107.
[16] It is easy to criticize the performance of school board members, but far more difficult to be a school board member facing difficult choices. For example, in adopting the long-range facilities plan, Mr. Stratton said:
It is very difficult to be able to satisfy all wishes of the patrons of the district. I think about all a Board Member can do is attempt to weigh the interests of each individual, not only the students or parents of a district but also other people that live in the city, taxpayers, perhaps those who are on limited incomes and try to arrive at a decision which is as acceptable as possible.
Rec. ex. vol. II at 97. Mr. Stratton testified on behalf of the school board in this trial. Rec. vol. XII at 2482.
[17] The court points out that "HEW did not approve the projected enrollments of more than 70% minority for Lafayette or Belvoir." Court's Opinion at 878 n. 76 (citing rec. ex. vol. II at 173) (letter from school board attorney to HEW summarizing proposed agreement between U.S.D. 501 and HEW). Under the plan, after the closure of Parkdale Elementary, Belvoir was expected to be 74.6% minority, while Lafayette was expected to be 70.7%. Rec. ex. vol. V at 37. The letter from the board's lawyer concerning the agreement between HEW and the board indicates that HEW was going to "express its concern that Lafayette and Belvoir Elementary Schools are expected to contain a disproportionate number of minority students" in a report to the district court. No such letter is contained in the record designated. Moreover, in 1985-86, Belvoir was 62.78% minority and Lafayette was 56.08% minority, well below the plan. Rec. ex. vol. IV at 170-71.
[18] Racial Inventory of USD 501 Students School Years 1985-1986 compared with 1981-82 Elementary Schools 1985-86 1985-86 1981-82 School Minority White Total % Minority % Minority Avondale East 128 162 290 44.14 35.18 Avondale West 45 226 271 16.61 15.91 Belvoir 146 90 236 61.86 62.78 Bishop 36 306 342 10.53 10.18 Crestview 32 326 358 8.94 5.85 Gage 25 240 265 9.43 7.92 H.P. Central 140 259 399 35.09 35.58 H.P. North 179 130 309 57.93 60.90 H.P. South 110 283 393 27.99 29.98 Hudson 108 124 232 46.55 38.26 Lafayette 217 165 382 56.81 56.08 Linn 57 137 194 29.38 31.44 Lowman Hill 155 215 370 41.89 41.79 Lundgren 38 202 240 15.83 12.99 McCarter 35 347 382 9.16 9.20 McClure 23 296 319 7.21 3.23 McEachron 30 261 291 10.31 9.06 Potwin 18 215 233 7.73 5.16 Quincy 61 236 297 20.54 16.47 Quinton Heights 129 132 261 49.43 56.18 Randolph 64 368 432 14.81 10.87 Shaner 71 272 343 20.70 19.37 State Street 78 219 297 26.26 25.71 Stout 88 240 328 26.83 26.30 Sumner 90 196 286 31.47 36.36 Whitson 38 334 372 10.22 8.29 _____ _____ _____ _____ _____ Elem. Total 2,141 5,981 8,122 26.36 25.22 ===== ===== ===== ===== ===== Middle Schools 1985-86 1985-86 1981-82 School Minority White Total % Minority % Minority Chase 105 209 314 33.44 34.15 Eisenhower 218 230 448 48.66 45.71 French 16 241 257 6.23 5.49 Jardine 57 273 330 17.27 12.41 Landon 21 205 226 9.29 6.29 Robinson 115 288 403 28.54 33.18 ___ _____ _____ ______ ______ Middle School Totals 532 1,446 1,978 26.90 25.05 === ===== ===== ====== ====== Senior High Schools 1985-86 1985-86 1981-82 School Minority White Total % Minority % Minority Highland Park High 427 845 1,272 33.57 39.81 Topeka High 498 1,113 1,611 30.91 32.52 Topeka West 120 1,391 1,511 7.94 5.25 _____ _____ _____ ______ _____ Senior High Totals 1,045 3,349 4,394 23.78 25.92 ===== ===== ===== ===== ===== Rec. ex. vol. IV at 122-129, 170-177.
[19] Three of the four relevant cases cited by the court involve situations in which courts have looked beyond the number of one-race schools or other numerical indications of racial identifiability in student assignment, and have concluded that, due to other factors, there was not necessarily a constitutional violation. In Morgan v. Nucci, 831 F.2d 313, 320 (1st Cir.1987), the court decided that out of 118 public schools in Boston, one 90+% school or thirteen 80+% schools (eight of which were 80+% black) would not preclude a finding of unitariness. In Price, 694 F.2d at 348, 350, the court decided that merely because a school had an enrollment less than 6.6% or greater than 17.6% black, it was not necessarily a racially identifiable school because racial identifiability is a question of fact, not of law. The court also recognized that the existence of "all-white or virtually all-white schools," in the various circumstances of ten previous Fifth Circuit cases, did not necessitate the finding of a constitutional violation. Id. at 365-66. In Carr v. Montgomery County Bd. of Educ., 377 F.Supp. 1123, 1141 (M.D.Ala.1974), aff'd, 511 F.2d 1374 (5th Cir.), cert. denied, 423 U.S. 986, 96 S.Ct. 394, 46 L.Ed.2d 303 (1975), the district court decided that a +-15% variation from the system-wide average, which would result in schools less than 33.5% or

more than 63.5% black being "racially identifiable," was "highly artificial." Id. Certain schools which were "racially identifiable" under the formula were nonetheless approved. Thus, the factors the court cites, "demography, geography, and the individual history of particular schools and areas of the city," Court's Opinion at 861, often have been used to narrow constitutional liability, not expand it.
This court also cites United States v. Lawrence County School Dist., 799 F.2d 1031 (5th Cir.1986), which appears to have decided as a matter of law that residential racial separation is generally a product of past segregated schools. See id. at 1043-44. This approach was criticized by Judge Higginbotham in his concurring and dissenting opinion in Lawrence. Id. at 1052-1060 (Higginbotham, J., concurring and dissenting).
"Where numbers alone are insufficient to define racially identifiable schools," Court's Opinion at 861, there probably is not constitutional liability when it comes to student assignment. But, the court's opinion seems to say that, even in the absence of one-race schools or schools which are "racially identifiable" given some numerical standard, there still may be an unlawful condition of segregation given "demography, geography and the individual history of particular schools and areas of the city." Id.
[20] "[A] finding of intentionally segregative school board actions in a meaningful portion of a school system ... creates a presumption that other segregated schooling within the system is not adventitious." Keyes, 413 U.S. at 208, 93 S.Ct. at 2697.
[21] As support for the notion that unconscious racism is prevalent, the court cites Lawrence, The Id, the Ego, and Equal Protection: Reckoning With Unconscious Racism, 39 Stan.L.Rev. 317, 327 (1987). Court's Opinion at 863 n. 28. In that article, the author concludes that "[t]he intent requirement is a centerpiece in an ideology of equal opportunity that legitimizes the continued existence of racially and economically discriminatory conditions and rationalizes the superordinate status of privileged whites." Lawrence. at 387. The author suggests that a "cultural meaning" test be incorporated into equal protection for the purpose of dealing with unconscious racism. Id. at 323-24, 355-81. Under the test, state action would be evaluated
to determine whether it conveys a symbolic message to which the culture attaches racial significance. A finding that the culture thinks of an allegedly discriminatory governmental action in racial terms would also constitute a finding regarding the beliefs and motivations of the governmental actors: The actors are themselves part of the culture and presumably could not have acted without being influenced by racial considerations, even if they are unaware of their racist beliefs. Therefore, the court would apply strict scrutiny.
Id. at 324; see also id. at 355-56. The author does discuss the lack of judicial restraint such a proposal involves, but is not dissuaded: "In short, it would not be a bad thing for judges to base constitutional decisions on their own sense of what values best reflect our cultural tradition, so long as the conflicting perspectives competing to define those values are made explicit." Id. at 386; see also id. at 381-87.
[22] This court evidences some confusion concerning the meaning of a "current condition of segregation," when it tells us that "[t]he case law is decidedly unclear as to the precise meaning of the term." Court's Opinion at 859 (footnote omitted). In its explanatory footnote, this court does not cite Keyes, 413 U.S. at 205-06, 93 S.Ct. at 2695-96, from which the phrase originated. In Keyes, the Court explained that one of the elements of de jure segregation was "a current condition of segregation resulting from intentional state action." Id.
[23] It appears that the correct figure was 14.8%, as indicated by the numbers from the Annual Report of the County Superintendent of Shawnee County, 1952-53. Rec. vol. IV at 460.
[24] Dr. Armor recognized that the concept of racial identifiability is one of racial balance. Rec. vol. XIII at 2567. So did the district court. Brown, 671 F.Supp. at 1294-95. Dr. Armor did not think deviating from some given numerical standard was an appropriate measure for liability, because the concept was developed for remedial purposes, and although "nearly one-race" schools may prompt initial inquiry, one must look at the causes. Rec. vol. XIII at 2566-67. One must then determine whether school board action or demographic changes or both resulted in the current situation. Id. at 2571. Beyond that, use of the concept, even in the remedial phase of school desegregation, is becoming less prevalent because an attempt to attain racial balance in every school, say within a +-15% tolerance, requires techniques, such as pairing and clustering of schools, that are dependent on cross-district busing. Id. at 2567-68. Mandatory busing, in turn, often leads to white flight 0907 existing students

moving out of the district or enroll in private schools and potential students not moving into the district. Id. at 2568-69. Dr. Armor noted that "the white flight problem has been so severe in most central city school districts that were pursuing integration that what we have had is resegregation and school districts that become predominantly minority because of the loss of the white population." Id. at 2569. He also commented that the racial balance standard is difficult to apply to districts with very small minority composition. Id. at 2569-70. Finally, Dr. Armor testified that measures of racial balance, because they emphasize a certain distribution of students at each school, do not give sufficient weight to whether there is "a meaningful opportunity for contact among black and white students." Id. at 2570. "That kind of contact can be attained in a whole variety of different configurations other than a system that is strictly racially balanced." Id. at 2570-71.
[25] Plaintiffs' counsel attempted to impeach Dr. Armor with deposition testimony indicating that he would not address compliance with the affirmative duty, rec. vol. XIII at 2643-48. In his responses, Dr. Armor explained how he came to the conclusion, id. at 2642-43, and explained three times why his deposition answers were not inconsistent with the scope of his trial testimony. Id. at 2646-48. The district court chose to credit Dr. Armor's testimony. See Brown, 671 F.Supp. at 1298 (finding high levels of integration based on dissimilarity index and exposure index).
[26] Both the elementary and "all schools" values of these indices present a picture of steady improvement over the years, reflecting the greater integration in the Topeka schools. See infra note 29. Significantly, the values of the these indices have continued to improve even after 1981, when Topeka's second desegregation plan was implemented completely.
[27] For discussion of the formulas for the dissimilarity index and exposure index, see F. Welch & A. Light, New Evidence on School Desegregation 0907 U.S. Comm'n on Civil Rights Clearinghouse Pub. No. 92, 37-39, 48 n. 52 (1987); see also Dowell v. Board of Educ., 890 F.2d 1483, 1525 n. 16 (10th Cir.1989) (Baldock, J., dissenting).
[28] Sometimes the indices are expressed as ranging from 0 to 1.0, other times, from 0 to 100. Rec. vol. XIII at 2582.
[29] Desegregation Indexes Based on Actual Enrollment Data Selected Years 1955 1966 1968 1975 1981 1985 PERCENT MINORITY Elementary 10.4 16.5 17.4 21.5 25.2 26.4 Junior High 0.0 15.3 16.5 20.2 25.1 26.9 High School 0.0 14.9 16.1 19.1 25.9 23.8 All Schools 10.4 15.9 16.9 20.6 25.4 25.7 DISSIMILARITY Elementary 62.1 62.0 57.7 51.6 40.8 36.6 Junior High 0.0 53.2 52.0 39.8 39.1 32.1 High School 0.0 34.4 36.8 32.8 34.7 30.1 All Schools 62.1 55.1 52.4 43.8 38.8 33.6 RELATIVE EXPOSURE Elementary 47.7 38.7 33.0 27.1 17.2 14.6 Junior High 0.0 26.1 24.4 18.8 12.9 11.2 High Schools 0.0 8.1 10.0 8.0 11.0 7.3 All Schools 47.7 30.9 26.7 20.8 14.7 12.1 Rec. ex. vol. II at 156-57.
[30] For the most part, this court has chosen to discount the final conclusion of Dr. Clark, the defendants' expert demographer. See Court's Opinion at 876. Dr. Clark analyzed the attendance boundary changes for the 11 elementary school attendance areas with the highest residential concentration of black residents (from 1963-64 through the 1985-86 school year). His findings certainly are relevant to this court's contention that various school board actions have resulted in segregative effects from which segregative intent could be inferred:
The overall conclusion of this analysis of population growth, its geographic dispersal over time and the attendance boundary analysis is that the major force driving the system of change in the Topeka school system was the demographic process and not the changes in attendance areas. The changes in school enrollment were due to the changing growth rates of the white and black populations and to their geographic locations and not to the year to year attendance area shifts. Even the analysis of the optional zones in the earlier years had only minimal impact on the percent black in the attendance areas. Indeed focusing on the last dozen years the school district has made changes which have provided real evidence of desegregative or neutral impacts. Given the declining white population and the increasing black population, the imbalances which exist are the result of the demographic forces and not the result of boundary changes.
Rec. ex. vol. I at 45; accord vol. XI at 2338-39. Although plaintiffs contended that the study, by beginning with 1963-64 boundaries, did not take into account any segregative effects remaining in those boundaries, the point of the study was to identify the role of demographic transition. Rec. vol. XI at 2359.

[31] The court discusses this finding as part of larger discussion responding to an imaginary contention made at trial "that further desegregation is, in effect, not worth the trouble." Court's Opinion at 885. Defendants did elicit from Dr. Foster that the school district could be in statistical compliance with his faculty/staff standard by moving 26 certificated faculty in 1981-82, and in compliance with his +-15% standard for racial identifiability in student assignment for 1985-86 by moving 265 out of 8,122 (3.26%) elementary students to different schools and by moving 77 secondary students out of 6,372 (1.20%) to different schools. Rec. vol. VI at 773-74, 797-800. The point of this "illuminating exercise," Court's Opinion at 886, was to show that even under the plaintiffs' strict standard, statistical racial identifiability was slight, and it was a close question as to statistical racial identifiability, given less strict standards. Moreover, mere statistical racial identifiability does not mean that there is unlawful segregation, especially on these numbers. That is why it was important for the district court to look beyond statistical racial identifiability, before deciding whether those schools so identified were indicative of a current condition of segregation.
[32] Shawnee County, Kansas City of Topeka, Kansas Year Total Persons Year Total Persons 1986 160,800 1986 118,580 1980 154,916 1980 118,690 Population Characteristics Population Characteristics 1984 1980 Race Percent Race Percent White 89.92 White 86.17 Black and Black 9.51 Other 10.08 Am. Indian Eskimo & Aleut 1.05 Asian or Pac. Islander .53 Hispanic 4.64 Source: U.S. Bureau of the Census, County and City Data Book-A Statistical Abstract Supplement 185, 650 (1988).
[33] Racial Inventory Employees Minority Professional Teaching Other Minority Total Year Staff Employees Employees % Minority 1981-82 84 141 1,974 11.4 1982-83 108 116 1,933 11.6 1983-84 114 116 1,926 11.9 1984-85 120 121 1,938 12.4 1985-86 114 121 1,948 12.1 Rec. ex. vol. IV at 266-68.
[34] While the school system must observe its affirmative action policy, the students have no constitutional right to attend a school with any particular racial composition. Quarles v. Oxford Mun. Separate School Dist., 868 F.2d 750, 756 (5th Cir.1989); Oliver v. Kalamazoo Bd. of Educ., 706 F.2d 757, 762 (6th Cir.1983).
[35] Elementary Minority Staff Percentage Minority Total Year Staff Staff % Minority 1973-74 127 708 17.94 1974-75 116 933 12.43 1975-76 99 997 9.93 1976-77 94.6 589.7 16.04 1977-78 109.8 780.2 14.07 1978-79 92.1 745.6 12.35 1979-80 89.2 721.4 12.36 1980-81 90.5 706.5 12.81 1981-82 82.3 666.5 12.35 1982-83 76.10 678.65 11.21 1983-84 78.15 635.0 12.31 1984-85 75.40 662.10 11.39
Rec. ex. vol. IV at 238, 240, 242, 244, 246, 248, 250, 252, 254, 255, 257, 259, 261.
[36] Should be 234.
[37] Elementary School Faculty/Staff Assignment 1985-86 Staff Elementary School Minority Total Minority % White % Avondale East 10.45 31.40 33.3 66.7 Avondale West 1.00 25.80 3.9 96.1 Belvoir 3.85 25.95 14.8 85.2 Bishop .40 23.80 1.7 98.3 Crestview 3.40 31.65 10.7 89.3 Gage 1.00 21.00 4.8 95.2 Highland Park Central 3.90 34.60 11.3 88.7 Highland Park North 5.50 28.60 19.2 80.8 Highland Park South 5.40 29.20 18.5 81.5 Hudson 3.80 19.75 19.2 80.8 Lafayette 5.65 32.60 17.3 82.7 Linn 0.30 17.80 1.7 98.3 Lowman Hill 6.50 25.60 25.4 74.6 Lundgren 2.80 21.55 13.0 87.0 McCarter 3.00 27.40 10.9 89.1 McClure 0.00 25.10 00.0 100.0 McEachron 1.00 23.50 4.3 95.7 Potwin 2.00 14.15 14.1 85.9 Quincy 1.00 32.35 3.1 96.9 Quinton Heights 4.40 20.40 21.6 78.4 Randolph 1.00 27.00 3.7 96.3 Shaner 2.00 21.90 9.1 90.9 State Street 1.30 22.90 5.7 94.3 Stout 2.00 20.60 9.7 90.3 Sumner 1.85 23.30 7.9 92.1 Whitson 1.00 35.35 2.8 97.2 _____ ______ _____ _____ Total 74.50 663.25 11.23 88.77 ===== ====== ===== ===== Rec. ex. vol. IV at 261.
[38] Middle School and High School Faculty/Staff Assignment 1985-86 Staff School Minority Total Minority % White % Chase 7.45 40.50 18.4 81.6 Eisenhower 12.10 65.25 18.5 81.5 French 2.40 42.63 5.6 94.4 Jardine 3.80 39.65 9.6 90.4 Landon 3.00 31.10 9.6 90.4 Robinson 12.20 49.35 24.7 75.3 Highland Park H.S. 13.65 118.25 11.5 88.5 Topeka H.S. 25.50 150.10 17.0 83.0 Topeka West 3.00 120.00 2.5 7.5 _____ ______ _____ _____ Total 83.10 656.83 12.65 87.35 ===== ====== ===== ===== Rec. ex. vol. IV at 262.
[39] Minority Staffing Report Elementary Schools Includes Administrative and Certificated Staff 1986-87 Staff Elementary School Minority Total Minority % Avondale East 4.0 22.0 18.18 Avondale West 1.0 19.0 5.26 Belvoir 3.0 18.0 16.67 Bishop 1.0 18.0 5.56 Crestview 3.0 25.0 12.00 Gage 1.0 14.0 7.14 Highland Park Central 4.0 25.0

16.00 Highland Park North 4.0 22.0 18.18 Highland Park South 4.0 23.0 17.39 Hudson 2.0 13.0 15.38 Lafayette 4.0 27.0 14.81 Linn 1.0 12.0 8.33 Lowman Hill 3.0 23.0 13.04 Lundgren 1.0 16.0 6.25 McCarter 2.0 22.0 9.09 McClure 1.0 20.0 5.00 McEachron 1.0 19.0 5.26 Potwin 1.0 13.0 7.69 Quincy 1.0 23.0 4.35 Quinton Heights 2.0 16.0 12.50 Randolph 1.0 22.0 4.55 Shaner 2.0 17.0 11.76 State Street 1.0 19.0 5.26 Stout 2.0 19.0 10.53 Sumner 3.0 17.0 17.65 Whitson 2.0 26.0 7.69 ______ ______ _______ Total 55.0 510.0 10.78 ======= ======= ======= Rec. ex. vol. II at 160-61.
[40] Minority Staffing Report Middle Schools Includes Administrative and Certificated Staff 1986-87 Staff Middle School Minority Total Minority% Chase 3.0 27.0 11.11 Eisenhower 7.0 45.0 15.56 French 5.0 36.0 13.89 Jardine 2.0 30.0 6.67 Robinson 6.0 36.0 16.67 ______ _______ _______ Total 23.0 174.0 13.22 ====== ======= ======= Rec. ex. vol. II at 160-61.
[41] Minority Staffing Report High Schools Includes Administrative and Certificated Staff 1986-87 Staff High School Minority Total Minority% Highland Park H.S. 9.0 76 11.84 Topeka H.S. 11.0 95.0 11.58 Topeka West H.S. 5.0 85.0 5.88 _____ _____ _____ Total 25.0 256.0 9.77 ===== ===== ===== Rec. ex. vol. II at 160-61.
[42] Dr. Herbert Walberg testified, based on his on-site visits and review of the school system that "it's an excellent system that is concentrating its resources on improving the children 0907 improving the education and achievement of all the children in the system." Rec. supp. vol. VII at 2042-43. He found that: 1) "effective schools' techniques were apparent in the schools," 2) uniform curriculum guides were in use throughout the district, 3) students are tested regularly and there are high expectations placed on students, 4) the Adventure Center, see supra note 15, was "one of the most impressive educational experiences [he had] seen in public schools" and it gives white and black students exposure to one another, 4) there is "a great deal of constructive parental involvement," 5) schools are safe, orderly and well-maintained, 6) there is "an award-winning Head Start program and many multi-cultural and ethnic programs," and 7) the preceding items account for "the district's outstanding achievement test scores which have been high and rising for the past several years." Rec. supp. vol. VII at 2033-35.
[43] Racial Inventory-Belvoir Elementary 1952-1985 Year Minority White Total % Minority 1952 66 379 445 14.8 1960 82 276 358 22.7 1966-67 255 172 427 59.72 1967-68 276 210 486 56.79 1968-69 294 224 518 56.76 1969-70 274 176 450 60.88 1970-71 232 131 363 63.91 1971-72 187 124 311 60.51 1972-73 228 135 363 62.81 1973-74 218 102 320 68.12 1974-75 198 97 295 67.12 1975-76 168 67 235 71.49 1976-77 190 45 235 80.85 1977-78 163 48 211 77.25 1978-79 159 57 216 73.61 1979-80 150 52 202 74.26 1980-81 152 49 201 75.62 1981-82 167 99 266 62.78 1982-83 156 107 263 59.32 1983-84 121 82 203 59.61 1984-85 112 81 193 58.03 1985-86 146 90 236 61.86 Rec. vol. IV at 460, supp. vol. XI at 149, 152; ex. vol. IV at 54, 58, 62, 66, 70, 74, 78, 82, 86, 90, 93, 97, 101, 105, 109, 122, 134, 146, 158 & 170.
[44] Racial Inventory-Hudson Elementary 1966-1985 Year Minority White Total % Minority 1966-67 18 202 220 8.18 1967-68 24 272 296 8.11 1968-69 23 312 335 6.87 1969-70 33 306 339 9.73 1970-71 68 322 390 17.44 1971-72 83 268 351 23.71 1972-73 80 223 303 26.40 1973-74 83 211 294 28.23 1974-75 79 202 281 28.11 1975-76 99 175 274 36.13 1976-77 88 176 264 33.33 1977-78 86 154 240 35.83 1978-79 71 148 219 32.42 1979-80 80 155 235 34.04 1980-81 78 155 233 33.48 1981-82 88 142 230 38.26 1982-83 88 142 230 38.26 1983-84 105 124 229 45.85 1984-85 105 132 237 44.30 1985-86 108 124 232 46.55 Rec. ex. vol. IV at 54, 58, 62, 66, 70, 74, 78, 82, 86, 90, 93, 97, 101, 105, 109, 123, 135, 147, 159 & 171.
[45] Racial Inventory-Highland Park North Elementary 1952-1985 Year Minority White Total % Minority 1952 18 1,158 1,176 1.5 1960 47 500 547 8.5 1966-67 119 432 551 21.60 1967-68 157 371 528 29.73 1968-69 145 368 513 28.27 1969-70 180 350 530 33.96 1970-71 143 319 462 30.95 1971-72 159 282 441 36.05 1972-73 152 245 397 38.29 1973-74 135 211 346 39.01 1974-75 142 194 336 42.26 1975-76 146 201 347 42.07 1976-77 140 169 309 45.31 1977-78 127 142 269 47.21 1978-79 170 121 291 58.42 1979-80 169 103 272 62.13 1980-81 149 111 260 57.31 1981-82 190 122 312 60.90 1982-83 197 128 325 60.62 1983-84 198 121 319 62.07 1984-85 174 125 299 58.19 1985-86 179 130 309 57.93 Rec. supp. vol. XI at 149, 152; ex. vol. IV at 54, 58, 62, 66, 70, 74, 78, 82, 86, 90, 93, 97, 101, 105, 109, 123, 135, 147, 159, & 171.
[46] Racial Inventory-Lafayette Elementary 1953-1985 Non-Black Year Minority Black White Total % Minority 1953 0 0 382 382 0 1954 0 0 332 332 0 1955 0 47 314 361 13.0 1956 0 50 315 365 13.7 1966-67 136 125 218

479 54.49 1967-68 133 140 188 461 59.22 1968-69 131 144 247 522 52.68 1969-70 157 152 244 553 55.88 1970-71 162 170 249 581 57.14 1971-72 134 186 261 581 55.07 1972-73 108 177 167 452 63.05 1973-74 91 190 163 444 63.28 1974-75 102 179 127 408 68.87 1975-76 67 221 140 428 67.29 1976-77 36 117 86 239 64.02 1977-78 36 124 97 257 62.26 1978-79 48 170 110 328 66.46 1979-80 47 131 108 286 62.24 1980-81 40 143 131 314 58.28 1981-82 60 166 177 403 56.08 1982-83 58 180 163 401 59.35 1983-84 59 187 194 440 55.91 1984-85 60 161 172 393 56.23 1985-86 59 158 165 382 56.81 Rec. supp. vol. XI at 56, 57, 58, 59; ex vol. IV at 54, 58, 62, 66, 70, 74, 78, 82, 86, 90, 93, 97, 101, 105, 109, 123, 135, 147, 159 & 171; see also ex. vol. IV at 37-38 (estimating 8.4% minority percentage in 1955 which district court relied upon).
[47] Racial Inventory-Quinton Heights Elementary 1953-1985 Year Minority White Total % Minority 1953 0 187 187 0 1954 10 288 298 3.4 1955 23 308 331 6.9 1956 26 329 355 7.3 1966-67 114 199 313 36.42 1967-68 102 184 286 35.66 1968-69 103 192 295 34.92 1969-70 113 161 274 41.24 1970-71 133 157 290 45.86 1971-72 108 188 296 36.48 1972-73 93 161 254 36.61 1973-74 92 160 252 36.51 1974-75 84 143 227 37.00 1975-76 77 120 197 39.09 1976-77 78 126 204 38.24 1977-78 62 120 182 34.07 1978-79 67 105 172 38.95 1979-80 111 110 221 50.23 1980-81 119 115 234 50.85 1981-82 150 117 267 56.18 1982-83 138 127 265 52.08 1983-84 151 125 276 54.71 1984-85 149 140 289 51.56 1985-86 129 132 261 49.43 Rec. supp. vol. XI at 56, 57, 58, 59; ex. vol. IV at 55, 59, 63, 67, 71, 75, 79, 83, 87, 90, 94, 97, 101, 105, 109, 125, 137, 149, 161 & 173; see also ex. vol. IV at 37-38 (estimating 2.8% minority percentage in 1955 which district court relied upon).
[48] In footnote 88, Court's Opinion at 883, the court tells us about these two northward expansions of the boundary of Quinton Heights. Regarding the second expansion, we are told: "The area assigned to Quinton Heights when Van Buren closed was apparently empty of people at the time." Id. I don't think so. If that statement were true, there would have been no students to send to Quinton Heights when Van Buren closed in 1964. The discussion in the transcript concerning the uninhabited area pertains to only a part of the area which was added 0907 the fairgrounds. See rec. vol. III at 252-253 (1962 northward expansion took in 3 areas; central third is the fairgrounds without permanent residents, eastern third is east of the fairgrounds and 0-100% black, and western third is west of the fairgrounds and 0-89.9% black), id. at 1255 (remainder of fairgrounds added to Quinton Heights' attendance area in 1964, as well as part of the residential areas of Van Buren and Monroe).
[49] The court tells us that Lowman Hill "remains the school whose attendance boundaries include the only significant group of minority population in the northwestern quarter of the school district," and also discusses Lowman Hill as containing "the only two significant areas of minority population in that part of Topeka." Court's Opinion at 880, 884 (emphasis added). As support for its finding, the court refers to the same map discussed above which indicates percent black population by block. Id. at 884 n. 91. Again the court's statement is too broad, we really have no way of knowing the concentration of other minority groups (e.g. hispanic) in the Lowman Hill area.
[50] In footnote 62, Court's Opinion at 874, the court claims that defendants' expert Dr. Clark admitted that the Lowman Hill boundaries were drawn with the effect of encompassing the black population in northwestern central Topeka, and that he essentially threw up his hands claiming that the boundaries already "were" in place. If this was true, it might provide some support for this court's finding that the Lowman Hill boundaries were drawn with the intent or effect of segregating the black elementary students in northwestern central Topeka. The transcript of Dr. Clark's testimony does not support that account, however. Dr. Clark explained why his work concerning schools with larger concentrations of minority students (including Lowman Hill) depended upon a more detailed analysis than a visual inspection of attendance areas would permit. Concerning Lowman Hill, the following exchange occurred:
Mr. Hansen: But this is an example where on visual analysis the boundaries were drawn in such a way 0907 from visual analysis the boundary [sic] were drawn in such a way as to incorporate virtually all the black people in that part of town into one school in that part of town. Isn't that right? Dr. Clark: No, I don't think they were drawn to incorporate all the black people in that part of town. There are areas of yellow [indicating lesser concentrations of black residents] that are outside that. But the boundaries of those school districts are in place; and yes, they have substantial numbers of black people. As I said earlier in the direct testimony, I took all those areas which were substantially black, and under racial transition for more detailed analysis.

Rec. vol. XI at 2345 (emphasis added). Taken in context and without the benefit of the court's creative editing, e.g. changing "are" to "were," the above is hardly the admission that the court would cast it to be. But this court's approach to Dr. Clark's testimony has not been one of balance. See, e.g., Court's Opinion at 875 (out of 8 potentially segregative cases concerning boundary changes, Dr. Clark concludes that all are "overall desegregative or generated by demographic trends," rec. ex. vol. I at 43, yet this court discusses the one case concerning a now-closed school which could be considered partly demographic and partly segregative).
[51] Racial Inventory-Lowman Hill Elementary 1953-1985 Year Minority White Total % Minority 1953 0 292 292 0 1954 0 274 274 0 1955 46 242 288 16.0 1956 53 251 304 17.4 1966-67 199 202 401 49.63 1967-68 184 245 429 42.89 1968-69 174 210 384 45.31 1969-70 186 219 405 45.93 1970-71 157 222 379 41.42 1971-72 164 198 362 45.30 1972-73 140 193 333 42.04 1973-74 133 151 284 46.83 1974-75 127 143 270 47.04 1975-76 137 167 304 45.07 1976-77 143 155 298 47.99 1977-78 117 159 276 42.39 1978-79 99 144 243 40.74 1979-80 113 149 262 43.13 1980-81 151 196 347 43.52 1981-82 145 202 347 41.79 1982-83 120 207 327 36.70 1983-84 134 203 337 39.76 1984-85 127 214 341 37.24 1985-86 155 215 370 41.89
Rec. supp. vol 11 at 56, 57, 58, 59; ex. vol. IV at 54, 58, 62, 66, 70, 74, 78, 82, 86, 90, 93, 97, 101, 105, 109, 124, 136, 148, 160 & 172.
[52] Concerning Gage (9.4% minority) and Potwin (7.7% minority), this court tells us that "the district court specifically found that they have been predominantly white schools since the Supreme Court's decision in this case, and remain predominantly white schools adjacent to schools with higher-than-average minority student population." Court's Opinion at 873 n. 60 (citing Brown, 671 F.Supp. at 1303). While the district court apparently considered Gage and Potwin "schools with low minority percentages," I simply cannot find, on the page cited by the court, any finding that these schools "remain predominantly white schools adjacent to schools with higherthan-average minority student population." Court's Opinion at 873 n. 60. Lest the wrong impression be given, that Gage and Potwin are totally surrounded by schools with higher-than-average minority concentrations, perhaps creating an inference of segregative intent including non-compliance with the board's affirmative duty, it is necessary to view the racial composition of those schools in relation to schools with neighboring attendance areas. Regarding Gage:

School

Direction from Gage

1985-86 Minority%

Gage

9.43

Lowman

Hill

SE

Randolph

SE

Whitson

SW

McCarter

SW

Potwin

NE

41.89 14.81 10.22
9.16 7.73

Rec. ex. vol. I at 49B, ex. vol. IV at 170, 172-74. Thus, only Lowman Hill has a higher-than-average minority concentration (avg. minority concentration 26.36%).
Regarding Potwin:

School

Direction

from

1985-86

Potwin

Minority%

Potwin

Sumner

SE

Lowman

Hill

SW

Gage

SW

Quincy

NE

7.73 36.36
41.89 9.43
20.54

Rec. ex. vol. I at 49B, ex. vol. IV at 170, 172-74. Thus, only Sumner and Lowman Hill have higher than average minority concentrations.

The district court noted that schools with low minority percentages located in the western part of the district are expected to increase in minority enrollment if current trends continue. Brown, 671 F.Supp. at 1303-04.

[53] For some reason, perhaps to lessen the appearance of its factual overinvolvement, the court constantly describes (and refines) the contentions of the plaintiffs (while ignoring those of the defendants) and then makes its factual findings, affirming the plaintiffs' contentions. See Court's Opinion at 878-79, 881-82, 883; see also id. at 874-75.

[54] Racial Inventory-Topeka West High School 1966-1985 Year Minority White Total % Minority 1966-67 5 1,241 1,246 0.40 1967-68 7 1,414 1,421 0.49 1968-69 10 1,552 1,562 0.64 1969-70 10 1,626 1,636 0.61 1970-71 9 1,580 1,589 .57 1971-72 9 1,567 1,576 .57 1972-73 18 1,522 1,540 1.17 1973-74 19 1,485 1,504 1.26 1974-75 35 1,421 1,456 2.40 1975-76 31 1,399 1,430 2.17 1976-77 31 1,355 1,386 2.24 1977-78 39 1,299 1,338 2.91 1978-79 57 1,286 1,343 4.24 1979-80 63 1,248 1,311 4.81 1980-81 70 1,505 1,575 4.44 1981-82 77 1,391 1,468 5.25 1982-83 95 1,388 1,483 6.41 1983-84 97 1,363 1,460 6.64 1984-85 112 1,388 1,500 7.47 1985-86 120 1,391 1,511 7.94

Rec. ex. vol. IV at 57, 61, 65, 69, 73, 77, 81, 85, 89, 91, 95, 99, 103, 107, 111, 128, 140, 153 & 164 & 176.

[55] The court's choice of words is unfortunate because the clear implication of the court's reference to "schools devoted to educating white children," is that Topeka was unconcerned with educating minority children. The court's implication is not supported by the record.

[56] Perhaps because there was no evidence concerning "vigorous official encouragement of desegregative transfers" this court views the majority to minority plan as "minimally effective" and as "a slightly desegregative transfer plan that potentially could be significant." Court's Opinion at 865, 885, 885 n. 97, 878. Nonetheless, the Supreme Court has endorsed such plans, see Swann, 402 U.S. at 26-27, 91 S.Ct. at 1281-82, and it is unclear what feature of the plan this court objects to, particularly considering the lack of evidence on this point at trial. See Court's Opinion at 884 ("The feasibility of further measures was not a focus of this case, and there was little evidence on this question.").

[57] Mr. Douglas was asked the following question on direct concerning the goal of eliminating majority-minority schools in the Topeka system:

Mr. McAtee: The fact that that goal has not yet been achieved or does not exist today in this district, Mr. Douglas, is that an indication to you that actions of this Board of Education present and past or inactions of the Board of Education present and past have been undertaken with an intent to achieve a segregative effect?

Mr. Douglas: I certainly do not believe that and I have no knowledge of any such actions or inactions by the board. I certainly believe at this particular point in time that this district is not in noncompliance or is outside the law and I don't really feel that the district needs the ACLU or anyone else to mandate any directives as to what should be done in this district and that includes, if I may say so respectfully, this court. I think that the board has clearly exhibited, at least I know for the eight years that I was there and in looking at and listening to what had happened previously, it certainly is indicative to me that the board has faced up to the problem and one of the kinds of things that they feel that they could do. I don't think that anything is perfect. I'm certainly not perfect, but I don't think I want to throw me away or I'm not going to go have myself made over because I'm not perfect. I hope that I have a little time to continue to improve myself and that's the same way that I see the district and with all of the problems that are facing education today, there's an old adage that I think is really appropriate for this

particular situation. It goes, while standing knee deep in alligators, it is sometimes difficult to remember that your original reason for being there was to drain the swamp, and if you serve on a Board of Education today with all the myriad of problems that comes before you, I think it's commendable that this board has taken as a priority, at least the board that I was on, took as a priority the lowering of minority percentages and the monitoring of those situations that could cause those problems.
Rec. vol. XII at 2455-56.
[58] Although the court is impressed with magnet schools to attract white students, see Court's Opinion at 885 n. 97, and voluntary transfers to improve racial balance, it is most unlikely that these techniques can produce the type of racial balance so essential to the court's decision. See F. Welch & A. Light, supra note 27, at 23-25, 57 (smallest decrease in dissimilarity index associated with magnet programs); see also J. Hochschild, The New American Dilemma-Liberal Democracy and School Desegregation 70-79 (1984); L. Hughes, W. Gordon & L. Hillman, Desegregating America's Schools 17-20 (1980).
[59] Accordingly, I would affirm the district court's judgment insofar as denying relief under Title VI. I concur in this court's judgment insofar as it affirms the dismissal of the Governor and the state board of education defendants from this action. See Court's Opinion at 887 ("We affirm both of these rulings.").
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 </s> 978 F.2d 585 (1992)
Oliver BROWN, et al., Plaintiffs, and Charles Smith and Kimberly Smith, Minor Children, by their Mother and Next Friend, Linda
Brown Smith, et al., Intervening Plaintiffs/Appellants, v.
BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS, et al., DefendantsAppellees.
No. 87-1668.
United States Court of Appeals, Tenth Circuit.
October 27, 1992. Rehearing Denied January 28, 1993.
5867 *586 *587 Christopher A. Hansen (Richard Jones, Charles Scott, Jr., and Joseph Johnson with him, on the brief), American Civil Liberties Union Foundation, for plaintiffs-appellants.
Dan Biles, of Gates & Clyde, Overland Park, Kan., Carl Gallagher, Asst. Atty. Gen., Topeka, Kan., and K. Gary Sebelius (Anne L. Baker and Charles N. Henson with him, on the brief) of Davis, Wright, Unrein, Hummer, and McAllister, Topeka, Kan., for defendants-appellees.
Before MCKAY, SEYMOUR, and BALDOCK, Circuit Judges.
SEYMOUR, Circuit Judge.
588 More than three years ago, we reversed the district court's decision in this landmark *588 school desegregation case. Brown v. Board of Educ., 892 F.2d 851 (10th Cir. 1989). The Supreme Court recently vacated our lengthy opinion, Board of Educ. v. Brown, ___ U.S. ___, 112 S.Ct. 1657, 118 L.Ed.2d 381 (1992), remanding for further consideration in light of Board of Educ. v. Dowell, 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991), and Freeman v. Pitts, ___ U.S. ___, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992). After oral argument and due consideration of Dowell and Freeman, we reinstate our prior opinion in full, with the additions set out below.[1]
I.
On remand we are required to determine whether recent Supreme Court authority has altered the landscape of desegregation law so as to change our prior opinion. We reversed the district court in part because it "erred in placing the burden on plaintiffs to prove intentional discriminatory conduct rather than according plaintiffs the presumption that current disparities are causally related to past intentional conduct."[2]Brown, 892 F.2d at 854. In its opinion, the district court wrote that, "after 30 years, one cannot assume that the racial imbalance which remains is a vestige of the de jure system or other illegal segregation." Brown v. Board of Educ., 671 F.Supp. 1290, 1297 (D.Kan. 1987). In Freeman, the Supreme Court said simply: "The school district bears the burden of showing that any current [racial] imbalance is not traceable, in a proximate way, to the prior violation." ___ U.S. at ___, 112 S.Ct. at 1447 (emphasis added). See also Lee v. Etowah County Bd. of Educ., 963 F.2d 1416, 1425 (11th Cir.1992). Freeman thus explicitly reaffirms one of the principles that required our reversal of the district court. The Court further held that a court may relinquish supervisory control over a former de jure school system in an incremental manner, Freeman, ___ U.S. at ___, 112 S.Ct. at 1445.
Dowell underscored the equitable nature of the desegregation decree, and indicated that the term "unitary" has no magical import. 498 U.S. at ___ - ___, 111 S.Ct. at 635-36. Our prior opinion does not treat unitariness as a rigid concept; it instead insists that a school district seeking freedom from continued judicial oversight must prove that any current racial imbalance is not connected to the prior de jure system. Dowell does not mark a retreat from the principle that "[t]he measure of any desegregation plan is its effectiveness." Davis v. School Comm'rs,

402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971); see also Freeman, ___ U.S. at ___, 112 S.Ct. at 1446. We previously applied this test in assessing the district court's unitariness[3] finding under the clearly erroneous standard. Brown, 892 F.2d at 868.
The Supreme Court's cases charge school boards that once operated school systems segregated by law "with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." Green v. County School Bd., 391 U.S. 430, 437-38, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968). After an initial finding of liability, the district court may enforce this duty "without any new proof of a constitutional violation." Freeman, ___ U.S. at ___, 112 S.Ct. at 1456 (Blackmun, J. concurring). Here, the question is not whether plaintiffs successfully established in the 1986 trial that the school system operated in a manner inconsistent with the constitutional guarantee of equal protection; that question was 589 answered in 1955. Instead, as we *589 made clear in our initial opinion, the question is whether Topeka has successfully discharged the duty imposed by the Constitution to eliminate the vestiges of de jure segregation.
Both Dowell and Freeman address the means by which a school system may be discharged from the active supervision of the courts. In Dowell, the Court required the district court to consider "whether the Board had complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination had been eliminated to the extent practicable."[4]Dowell, 498 U.S. at ___, 111 S.Ct. at 638; Freeman, ___ U.S. at ___ - ___, 112 S.Ct. at 1449-50. Dowell reaffirmed Green's requirement that a court considering whether the vestiges of past segregation have been eliminated must look to "every facet of school operations." 498 U.S. at ___, 111 S.Ct. at 638 (quoting Green, 391 U.S. at 435, 88 S.Ct. at 1692).
Freeman expanded on this requirement by explicitly stating that "[a] federal court in a school desegregation case has the discretion to order an incremental or partial withdrawal of its supervision and control," ___ U.S. at ___ ___, 112 S.Ct. at 1444-45, thereby allowing a school system to achieve compliance in one facet of its operations before it has fulfilled the whole of its affirmative duty. Neither Dowell nor Freeman suggests that the plaintiffs in the remedial phase of school desegregation litigation must make a new showing of discriminatory intent in order to obtain relief from a current condition of segregation. The district court here wrongly required the plaintiffs to make such a showing. See Brown, 671 F.Supp. at 1295 ("Plaintiffs have the burden of proving that illegal segregation exists in U.S.D. # 501.").
"Proper resolution of any desegregation case turns on a careful assessment of its facts." Freeman, ___ U.S. at ___, 112 S.Ct. at 1437. The facts underlying this case are far different than those before the Supreme Court in either Dowell or Freeman. In Oklahoma City, the school board adopted a comprehensive plan to desegregate the school system in 1972 and operated under that plan for many years. See Dowell v. Board of Educ., 890 F.2d 1483, 1486-87 (10th Cir.1989), rev'd, 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991). In DeKalb County, the district court had approved a plan to achieve maximum practicable desegregation. Freeman, ___ U.S. at ___, 112 S.Ct. at 1447. Subsequent to the implementation of the plan, demographic changes resulted in largely segregated residential neighborhoods. At the same time, the population of DeKalb County increased dramatically. See id. ___ U.S. at ___, 112 S.Ct. at 1438-40. In the face of these changes, the school system aggressively employed a Minority-to-Majority transfer program and several magnet school programs in an effort to maintain some level of racial balance in student assignment. Id. ___ U.S. at ___, 112 S.Ct. at 1440. In Topeka, in contrast, the school board did very little to desegregate its student assignment practices.[5]See Brown, 892 F.2d at 874. 590 Fortunately, increasing residential integration actually helped to *590 decrease racial segregation in some of the city's neighborhood schools. Unlike DeKalb County, the best that can be said of Topeka's efforts is this: "The district has not bucked the demographic forces that have improved the racial balance of schools." Brown, 671 F.Supp. at 1309 (emphasis added).[6]
"Our post-Green cases provide that, once state-enforced school segregation is shown to have existed in a jurisdiction in 1954, there arises a presumption, ... that any current racial imbalance is the product of that violation." Freeman, ___ U.S. ___, 112 S.Ct. at 1453 (Scalia, J. concurring); see United States v. Fordice, ___ U.S. ___, ___, 112 S.Ct. 2727, 2735, 120 L.Ed.2d 575 (1992). This is the presumption that the district court failed to accord plaintiffs in this case. See Brown, 892 F.2d at 867-68. At the time of trial, the Topeka school system operated a number of racially identifiable schools. See id. at 870. In the continuing remedial phase of this

litigation, then, the district court must impose upon defendants the substantial burden of demonstrating the absence of a causal connection between any current condition of segregation and the prior de jure system. Until the school district meets this burden, the district court must retain some measure of supervision over the school system.[7]
In this case, the district court disregarded Topeka's history of inaction, observing: "At any time, more could have been done to achieve racial balance in the schools. But, it begs the issue of this case to argue that racial balancing must be done today because it was not done yesterday." Brown, 671 F.Supp. at 1309. To expect the lingering effects of legally mandated separation to magically dissolve with as little effort as the Topeka school district exerted, see Brown 892 F.2d at 874, is to expect too much. "[S]tubborn facts of history linger and persist," Freeman, ___ U.S. at ___, 112 S.Ct. at 1448, and, if left unattended, they fester. The Constitution does not permit the courts to ignore today's reality because it is temporally distant from the initial finding that the school system was operated in violation of the constitutional rights of its students. Temporal distance matters only to the extent that changes across that time period, unconnected to the de jure system's lingering effects, are responsible for what is observable today. See Freeman, ___ U.S. at ___, 112 S.Ct. at 1448 ("fundamental changes ... not attributable to the former de jure regime" responsible for currently segregated schools).
The district court's conclusion that the Topeka system had achieved unitary status depended on its belief that the 591 "district's conduct over thirty years [did not] *591 indicate[] a desire to perpetuate segregation." 671 F.Supp. at
1309; see id. at 1311 ("The racially imbalanced schools are not the product of overt or covert intentional segregative conduct."). This belief does not adequately support the court's decision. The absence of affirmatively discriminatory action or intent across time is insufficient, without more, to demonstrate the lack of a causal connection between the prior de jure system and the present system. It is far easier to demonstrate an absence of segregative intent than it is to rebut the presumed causal connection between current conditions and legally mandated segregation.[8]See Freeman, ___ U.S. at ___, 112 S.Ct. at 1453 (Scalia, J. concurring) (presumed connection is powerful).
The lesson of Freeman is not that demographic changes in a district absolve a school board of its affirmative duty to desegregate. Instead, the case teaches that demographic change may produce racially identifiable schools in a district that has fulfilled its affirmative duty. What matters is whether current racial identifiability is a vestige of a school system's de jure past, or only a product of demographic changes outside the school district's control. If the current condition is a vestige then the school system has not fulfilled its affirmative duty. "If the State has not discharged this duty, it remains in violation of the Fourteenth Amendment." Fordice, ___ U.S. at ___, 112 S.Ct. at 2735.
We have little reason to doubt defendant's repeated insistence that its various decisions were not motivated by racial animus. Indeed, the innovative character of the school system by the time of trial suggests a genuine commitment to providing quality education to all its students. See Brown, 892 F.2d at 889. The district court thought such a showing sufficient. As a matter of law, it was not. See Dayton Board of Educ. v. Brinkman, 443 U.S. 526, 538, 99 S.Ct. 2971, 2979, 61 L.Ed.2d 720 (1979) ("As was clearly established in [prior cases], the Board had to do more than abandon its prior discriminatory purpose."); Harris v. Crenshaw County Bd. of Educ., 968 F.2d 1090, 1095 (11th Cir., 1992) ("[S]chool officials are obligated not only to avoid any official action that has the effect of perpetuating or reestablishing a dual school system, but also to render decisions that further desegregation and help to eliminate the effects of the previous dual school system."). The school system failed to demonstrate that the current racial identifiability of its schools is not connected to its prior practice of segregation. See Brown, 892 F.2d at 877. Nothing in Freeman or Dowell compels us to alter that conclusion.
II.
In shaping a remedy on remand the district court should, in accordance with Freeman's incremental approach, consider whether it would be appropriate to relinquish supervision of those areas of the school system plaintiffs conceded were unitary. See Brown, 892 F.2d at 869 n. 53 ("Topeka school system is unitary with respect to facilities, extracurricular activities, curriculum, transportation, and equality of education."). In so doing, the district court must assess

whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good faith commitment to the whole of the court's decree and to those provisions of the law and the constitution that were the predicate for judicial intervention in the first instance.
Freeman, ___ U.S. ___, 112 S.Ct. at 1446 (emphasis added). Freeman thus requires the district court to make two findings before withdrawing its supervision incrementally. First, the court must find that the relinquishment of 592 control over the facet *592 at issue would not make it impossible to craft a remedy that will achieve compliance in the system's other facets. Next, the court must find that the school system has demonstrated good faith. This second inquiry is not limited to an individual facet. Instead, the court must consider the system's efforts to desegregate, as a whole, across time. Id.
In its initial opinion, the district court did not evaluate the school system's good faith. On remand, it must make such a finding and its evaluation must be based on objective criteria. See id. Mere protestations of an intention to comply with the Constitution in the future will not suffice. Instead, specific policies, decisions, and courses of action that extend into the future must be examined to assess the school system's good faith. Id.
In its brief, after the Supreme Court remanded this case to us, the school district argued that:
If Plaintiffs prevail in this case and a court-ordered remedy is implemented, the danger is that in Topeka, as in Oklahoma City and DeKalb County, the remedy will not have more than a temporary effect upon student attendance figures. Depending upon the nature of the remedy, white flight from the racially balanced schools may occur, as well as community resentment over court interference and the expenditure of resources for noncurricular purposes. Under the teaching of Dowell, after the Topeka school district would have complied with such a plan in good faith for a number of years, court jurisdiction could then be withdrawn. It is highly probable that the neighborhood schools at the time of withdrawal would be more imbalanced than they are today. Why should Topeka schools be burdened for no long-term benefit?
Brief of Appellee at 36 (citation omitted) (emphasis added). It is difficult to understand how the district can contend that compliance with the Constitution does not confer a long-term benefit upon the students in Topeka. At the same time, the district's argument highlights a potential problem with Dowell. Depending on the definition of "good faith," the possibility of immediate resegregation following a declaration of unitariness seems all too real. For this reason, we are convinced that evaluation of the "good faith" prong of the Dowell test must include consideration of a school system's continued commitment to integration. A school system that views compliance with a school desegregation plan as a means by which to return to student assignment practices that produce numerous racially identifiable schools cannot be said to be acting in "good faith." See Dowell, 498 U.S. ___, 111 S.Ct. at 637 (prior to discharge, district court must find "that it was unlikely that the school board would return to its former ways.").
In order to show good faith, for purposes of either incremental or final discharge from ongoing court supervision, Topeka must demonstrate that "its policies form a consistent pattern of lawful conduct directed to eliminating earlier violations." Freeman, ___ U.S. at ___, 112 S.Ct. at 1446. The inquiry into Topeka's good faith, like the inquiry into whether further remedial efforts are necessary, must consider whether Topeka has taken such affirmative steps in the direction of desegregation so as to establish a "consistent pattern of lawful conduct." A comprehensive plan, adopted and followed by the school board, aimed at eliminating the vestiges of segregation to the system would be evidence of good faith; so might a school board resolution declaring the school board's intention to comply with the Constitution in the future, see Lee v. Talladega County Bd. of Educ., 963 F.2d 1426, 1428 (11th Cir.1992), but only if coupled with affirmative efforts across time. As we have observed above, inaction in the face of the affirmative duty to desegregate is not lawful conduct. A school system that does not take the required steps cannot be found in good faith and may not be discharged from continued supervision with respect to any facet of its operations.

The decision of a court to relinquish supervisory control over one or more facets of the school system is not 593 tantamount to *593 an abandonment of jurisdiction. Therefore, if it were later to appear that a vestige of
segregation in a facet still under the court's control has led to a reemergence of segregation in a facet over which the court had relinquished control, the court would not be powerless to react. "[B]ecause the court retains jurisdiction over the case, it should of course reassert control over [the relinquished area] if it finds that this does happen." Freeman, ___ U.S. at ___, 112 S.Ct. at 1455 (Souter, J. concurring). In such an event, because the reemergence would be linked to a vestige of the past system, it would itself be a vestige. Consequently, no showing of discriminatory intent would be needed to enable the court to address the problem.
With respect to the areas of student assignment and faculty/staff assignment, which were not unitary when the trial was held in this case, the district court must consider the current situation in Topeka schools in order to fashion an appropriate remedy. Six years have passed since the trial, and it is likely that many changes have occurred in the school system. The district court should inquire into the recent history of Topeka's efforts to fulfill its affirmative duty, and should assess the effects of those efforts on student and faculty staff assignments. It must shape a remedy that addresses the remaining vestiges of segregation in the Topeka school system, and that promises to eliminate them to the extent practicable. See Dowell, 498 U.S. ___, 111 S.Ct. at 638.
III.
We are mindful of the limited authority and ability of the courts to reshape society, but we possess an abiding respect for the constitutional guarantee of equal protection and the responsibility of the courts to insure that government fulfills its promise to all its citizens. The law that required reversal of this case in 1989 has not been changed by Freeman or Dowell. The opinion we reinstate today is consistent with these most recent Supreme Court pronouncements in the area of school desegregation. We say simply that because Topeka has not fulfilled its affirmative duty in the areas of student and faculty/staff assignments, the district court erred in concluding that the system as a whole had achieved unitary status. The district court must instead formulate an appropriate remedy.
Accordingly, we again REVERSE the decision of the district court, and we REINSTATE our prior opinion.
BALDOCK, Circuit Judge, dissenting.
Nothing so needs reforming as other people's habits.
0907 Pudd'nhead Wilson's Calendar
Mark Twain, Pudd'nhead Wilson ch. XV.
The Supreme Court vacated this court's judgment in Brown v. Board of Educ., 892 F.2d 851 (10th Cir.1989), and remanded for reconsideration in light of its two most recent pronouncements in the field of public school desegregation, Board of Educ. v. Dowell, 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991), and Freeman v. Pitts, ___ U.S. ___, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992). See Board of Educ. v. Brown, ___ U.S. ___, 112 S.Ct. 1657, 118 L.Ed.2d 381 (1992). The vacation of the judgment and remand were apt because both Supreme Court cases address "the duties of a district court during the final phases of a desegregation case...." See Freeman, ___ U.S. at ___, 112 S.Ct. at 1446.
Parsing those decisions for the minimal support they provide its prior resolution, this court again reverses the district court's judgment and reinstates its prior opinion "in full." Court's Opinion at 588, 593. This court again finds the Topeka system not unitary and requires another desegregation plan, at least in the areas of student and faculty/staff assignment, notwithstanding that the Supreme Court has announced important new principles concerning the later phases of school desegregation.
Dowell and Freeman reaffirmed that federal court involvement in school desegregation was always meant to be 594 temporary, confined to remedying a constitutional violation and restoring control to state *594 and local
authorities. Freeman, ___ U.S. ___, 112 S.Ct. at 1445; Dowell, 498 U.S. at ___, 111 S.Ct. at 636; Lee v.

Talladega County Bd. of Educ., 963 F.2d 1426, 1430 (11th Cir.1992). Thus, a federal court may withdraw from supervision of a school district in increments as the district achieves unitary status over each facet of its operations. Freeman, ___ U.S. at ___, 112 S.Ct. at 1445. Once a school district has achieved unitary status, actions concerning student assignment, even if they result in racial imbalance, must be evaluated under traditional equal protection principles which require a showing of intentional discrimination. Dowell, 498 U.S. at ___, 112 S.Ct. at 638; United States v. Overton, 834 F.2d 1171, 1175-76 (5th Cir.1987). See also Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 22-23, 91 S.Ct. 1267, 1279-1280, 28 L.Ed.2d 554 (1971) (discussing the use of school desegregation cases for purposes beyond their scope). To read this court's latest opinion, one would be hard pressed to divine that the school officials prevailed in both Dowell and Freeman, and the Supreme Court reversed the lower appellate courts as going too far.
This court remains convinced that the district court incorrectly (1) required the plaintiffs to prove discriminatory intent, (2) did not accord the plaintiffs the presumption that racially imbalanced schools are attributable to the de jure system, and (3) did not insist on a sufficient showing by the defendant school district to prove compliance with its affirmative duty. Court's Opinion at 589-91. For several reasons explained previously, I disagree that the district court incorrectly applied the presumption and burden shifting principles involved in a school desegregation case.[1]See Brown, 892 F.2d at 889 (Baldock, J., dissenting). The district court recognized that Topeka had an affirmative duty to eliminate the vestiges of segregation and apparently concluded that the school board had overcome the presumption against it inherent in racially imbalanced schools. See Brown v. Board of Educ., 671 F.Supp. 1290, 1292-93, 1295 (D.Kan.1987). See also Lee v. Etowah County Bd. of Educ., 963 F.2d 1416 (11th Cir.1992). As conceded at oral argument, however, the district court's short discussion of the burden of proof is not free from ambiguity. See Brown, 671 F.Supp. at 1295.
This case should be remanded to the district court for complete reconsideration. We could then be assured of the district court's application of the correct presumption and burden shifting principles and have the advantage of the district court making the myriad of required factual findings. More importantly, the district court can incorporate into its analysis the Supreme Court's recent guidance concerning the role of good faith and demographic change in the later phases of school desegregation.
Given the sharply differing views of the experts in this case, this court should reconsider its insistence on trying the case on appeal. In both Dowell and Freeman, the Supreme Court acknowledged the importance of a district 595 court's evaluation of the evidence, including expert testimony,[2] in *595 deciding whether a school district has complied with the Constitution. See Dowell, 498 U.S. at ___, 111 S.Ct. at 638 (remanding to the district court to decide "whether the Board made a sufficient showing of constitutional compliance"); Freeman, ___ U.S. at ___, 112 S.Ct. at 1440 (concerning whether DCSS had met its affirmative duty, "[p]etitioners and respondents presented conflicting expert testimony about the potential effects that desegregative techniques not deployed might have had upon the racial mix of the schools. The District Court found that the petitioner's experts were more reliable...."); id. ___ U.S. at ___, 112 S.Ct. at 1439 (in deciding that DeKalb County School System ["DCSS"] was unitary as to student assignment in 1969 despite the presence of two majority-minority schools, district court relied on "expert witness testimony that Terry Mill [school] had become a majority black school as a result of demographic shifts unrelated to the actions of petitioners or their predecessors"). The record in this case is filled with conflicting evidence concerning the unitary status inquiry demanded by Dowell: "whether the Board had complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination had been eliminated to the extent practicable." 498 U.S. at ___, 111 S.Ct. at 638 (footnote omitted). See also Etowah County, 963 F.2d at 1424 n. 9 (Dowell provides standard for unitariness inquiry).
This court's decision that Topeka did not comply with its affirmative duty and did not prove that racial imbalance was not attributable to de jure segregation is tantamount to directing a verdict in favor of the plaintiffs. But this is not a case where the evidence "is so one-sided that one party must prevail as a matter of law." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986) (discussing directed verdict standard); Etowah County, 963 F.2d at 1425 (district court improperly granted summary judgment given "a genuine issue of material fact as to the defendant's attainment of unitary status"). The massive record in this case contains evidence concerning student and faculty/staff assignment[3] which could support either side. See

Brown, 892 F.2d at 890, 911-13 (Baldock, J., dissenting). We should rely "on the informed judgment of the district court[] in the first instance." See Swann, 402 U.S. at 28, 91 S.Ct. at 1282.
Although this court recognizes, as it must given the clear language of Dowell and the concession of the plaintiffs at oral argument, that the district court must consider "whether the Board had complied in good faith with the desegregation decree since it was entered," 498 U.S. at ___, 111 S.Ct. at 638, this court then limits the good faith inquiry to events subsequent to 1986 by apparently deciding as a matter of law that Topeka cannot 596 demonstrate good faith before 1986.[4]See Court's Opinion at 592. *596 In evaluating good faith compliance, the district court may consider that "with the passage of time the degree to which racial imbalances continue to represent vestiges of a constitutional violation may diminish. ..." Freeman, ___ U.S. at ___, 112 S.Ct. at 1446. Deciding these highly factual points as a matter of law is perfectly consistent with this court's prior appellate factfinding and strong reluctance to return this case to the district court to revisit events prior to 1986.
This court's remand of the case for formulation of another desegregation plan may be a costly and unnecessary exercise in social engineering given the demographic characteristics which the district court determined were now responsible for student assignment patterns.[5] The Supreme Court recognized that the mobility of American society and the private residential choices of Americans frequently contribute to racial imbalance. Freeman, ___ U.S. at ___, 112 S.Ct. at 1448. See also Flax v. Potts, 915 F.2d 155, 161-62 (5th Cir.1990). The Court held that a school district is not required to racially balance student assignments "in the late phases of carrying out a decree, when the imbalance is attributable neither to the prior de jure system nor to a later violation by the school district but rather to independent demographic forces." Freeman, ___ U.S. at ___, 112 S.Ct. at 1447.
In reaching this holding, the Supreme Court apparently relied on the following facts:
In the case before us the District Court designed a comprehensive plan for desegregation of DCSS in 1969, one that included racial balance in student assignments. The desegregation decree was designed to achieve maximum practicable desegregation. Its central remedy was the closing of black schools and the reassignment of pupils to neighborhood schools, with attendance zones that achieved racial balance. The plan accomplished its objective in the first year of operation, before dramatic demographic changes altered residential patterns. For the entire 17year period the respondents raised no substantial objection to the basic student assignment system....
Id. Although the Court indicated that the plan achieved racial balance, the plaintiffs introduced evidence that 5.6% of the student population was black in 1969, yet two elementary schools had majority-minority student assignment (76% and 51% black). Id. ___ U.S. at ___, 112 S.Ct. at 1439. As noted, the district court "found the racial imbalance in these schools was not a vestige of the prior de jure system." Id.
Here, the district court concluded that demographic forces are responsible for the racial composition in Topeka's schools. Brown, 671 F.Supp. at 1310. This court claims that such a conclusion "is in considerable tension with the district court's observations that demographics have had a desegregative influence on student assignment in Topeka's schools." Court's Opinion at 590 n. 6 (citing Brown, 892 F.2d at 874). The district court, however, appears to have made that observation primarily in the context of increased minority enrollment in schools which have had high concentrations of white enrollment. See Brown, 671 F.Supp. at 1300. The district court did attribute higher than average minority enrollment in many schools to demographic factors, unrelated to school board action. See id. at 1301-03. This court also discounts the demographic element given "the school district's failure to ever operate without racially identifiable schools, and the district court's failure to apply the appropriate legal standard...." Court's Opinion at 590 n. 6. This statement rests on this court's overinclusive definition of racial identifiability, see Brown, 892 F.2d at 911-912 (Baldock, J., dissenting); Lee v. Macon County Board of Educ., 970 F.2d 767, 774 n. 23 (11th Cir.1992) (noting that a school which is 64% black is not racially identifiable; a school 597 which is 94% black *597 is), and liability in the absence of racial balance, regardless of the showing made by the school district which has the substantial, but not insurmountable, "burden of showing that any current imbalance is not traceable, in a proximate way, to the prior violation."[6]See Freeman, ___ U.S. at ___, 112 S.Ct. at 1447 (emphasis added). I would require the district court to reconsider the demographic variable on remand. Use of current data is essential.[7]

This court attempts to distinguish Dowell and Freeman from Brown on the basis that school authorities in Oklahoma City and DeKalb County conducted aggressive desegregation efforts, but that Topeka did "very little" and the best that can be said is that Topeka did not resist demographic changes which improved racial balance. First, Topeka has successfully implemented two desegregation plans. See Brown, 892 F.2d at 895-98, 904-08 (Baldock, J. dissenting). Second, Topeka has no one-race minority or virtually one-race minority schools; only three schools were majority-minority in 1985-86; Belvoir (61.86% minority), Highland Park North (57.93%) and Lafayette (56.81%).[8]See id. at 936-37 n. 43, 939 n. 45, 939-40 n. 46.
There are remarkable similarities between Freeman and the facts of this case, but Topeka has far less racial imbalance than DCSS[9] and probably has done at least as much as DCSS (and over a longer period of time) to encourage racial balance. Of obvious concern to the plaintiffs in Freeman were the following facts: (1) in a system in which forty-seven percent of the students were black, fifty percent of the black students attended schools which were 90+% black, (2) five out of twenty-two high schools were 90%+ black, and (3) eighteen of seventy-four elementary schools were 90%+ black. Topeka has no 90%+ black schools, although it does have three elementary schools which have a slight majority of minority students. Approximately twenty-five percent of the black elementary students attend these three schools.
Notwithstanding the understandable concerns of the Freeman plaintiffs concerning racial balance, the Supreme Court necessarily determined that DCSS had satisfied its affirmative duty to desegregate as to student assignment after the first year of a 1969 plan which closed black schools and reassigned students to 598 neighborhood *598 schools, with attendance zones that achieved racial balance.[10] ___ U.S. at ___, 112 S.Ct. at 1447. Topeka also employed a neighborhood plan. In Freeman, the district court determined that two majorityminority schools in 1969 were not vestige schools. ___ U.S. at ___, 112 S.Ct. at 1439. Here, the district court determined that the three majority-minority schools were not vestige schools. Brown, 671 F.Supp. at 1301-03. In Freeman, the plaintiffs did not raise their complaint about the student assignment system for seventeen years after enactment of the plan, ___ U.S. at ___, 112 S.Ct. at 1447; Brown was dormant for twenty-four years, 671 F.Supp. at 1291-92.
Even at this late stage in the desegregation litigation (thirty-seven years after Brown I, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954)), the school board is obligated to remedy racial imbalance, but only if it is a vestige of the de jure system. Freeman, ___ U.S. at ___, 112 S.Ct. at 1447. We cannot lose sight that "[t]he mix that would have occurred but for the racism is a judicially created hypothetical." Overton, 834 F.2d at 1176. After thirty-seven years, the school district must be allowed to focus on the promise of a public school education to develop the potential in every child, notwithstanding declining enrollments, limited governmental resources and social problems. Our Constitution does not elevate punitive over practical considerations. See Harris v. Crenshaw County Bd. of Educ., 968 F.2d 1090, 1096-97 (11th Cir.1992); Overton, 834 F.2d at 1177.
Once a school district has demonstrated that it has operated free of the taint of intentional segregation, control must devolve to local authorities. Withholding unitary status until perfect racial balancing occurs cannot guarantee tolerance, remedy ignorance or obliterate prejudice. Rather, it serves to distance the patrons of the school district from school officials by permanently displacing state and local authority guaranteed by the Constitution. It also minimizes the arduous gains in racial equality and reneges on the promise of eventual autonomy made to a school district which has operated in good faith. Imposing a remedy on Topeka in the manner adopted by this court, when the district court legitimately could find otherwise were it allowed to exercise its traditional factfinding power, betrays "the sense of basic fairness inherent in equity," especially important in this sensitive area. See Swann, 402 U.S. at 31, S.Ct. at 12. Because I believe that the case should be remanded for reconsideration of all issues by the district court in light of the directly relevant and new authority commended 599 to *599 us by the Supreme Court, I respectfully dissent.
[1] We do not address the district court's Title VI holding, its dismissal of the Governor of the State of Kansas, or its ruling that the State Board of Education bears no liability for segregation in Topeka's schools. Each of these issues is resolved by our prior opinion.

[2] After a review of the record, we also held clearly erroneous the district court's findings that the school system had reached unitary status in student assignment and faculty and staff assignment practices.
[3] The term "unitary" describes a school system or a facet of a school system that has been brought into compliance with the constitution. See Board of Educ. v. Dowell, 498 U.S. 237, ___, 111 S.Ct. 630, 636, 112 L.Ed.2d 715 (1991).
[4] Any tension perceived by the school board between this standard and our requirement that the school system must "eliminate[] all traces of past intentional segregation to the maximum feasible extent," Brown v. Board of Educ., 892 F.2d 851, 859 (10th Cir.1989), is more imagined than real. Indeed, a leading dictionary defines "practicable" as "feasible." See Webster's Third New International Dictionary at 1780 (1981). The same dictionary defines "vestige" as "a remaining bit that constitutes a memorial or trace." Id. at 2547.
[5] The same is true with regard to faculty/staff assignment practices. "In Topeka, ... there is a clear pattern of assigning minority faculty/staff in a manner that reflects minority student assignment." Brown, 892 F.2d at 872. This pattern may itself reinforce racial identifiability, and if left unattended "will act as an incubator for resegregation in other[]" facets of the school system. Freeman v. Pitts, ___ U.S. ___, ___, 112 S.Ct. 1430, 1455, 118 L.Ed.2d 108 (1992) (Souter, J. concurring). Nothing in the recent Supreme Court cases alters our holding with regard to faculty/staff assignments. We reiterate that a failure to achieve compliance with regard to faculty/ staff assignment is particularly disturbing because it is the one facet within the exclusive control of the local school authorities.
[6] The district court's decision in Freeman rested in part on its holding that the DeKalb County schools were successfully desegregated in student assignment in 1969. Freeman, ___ U.S. at ___, 112 S.Ct. at 1439. Subsequent resegregation, the district court held, was caused by demographic changes unconnected to the prior de jure system. Id. ___ U.S. at ___, 112 S.Ct. at 1438-40. In the present case, the district court did state: "Demographic forces, uncontrolled by defendants, form the racial composition of the schools." Brown v. Board of Educ., 671 F.Supp. 1290, 1310 (D.Kan.1987). This comment, however, is in considerable tension with the district court's observations that demographics have had a desegregative influence on student assignment in Topeka's schools. See Brown, 892 F.2d at 874. Moreover, in light of the school district's failure to ever operate without racially identifiable schools, and the district court's failure to apply the appropriate legal standard, the court's conclusion that demographics caused segregation simply does not amount to a supportable holding that the current condition of segregation in Topeka is wholly unconnected to the prior de jure school system. The absence of a moment at which Topeka achieved compliance with the Constitution is vital because it is only "[o]nce the racial imbalance due to the de jure violation has been remedied [that] the school district is under no duty to remedy imbalance that is caused by demographic factors." Freeman, ___ U.S. at ___, 112 S.Ct. at 1447 (emphasis added).
[7] This supervision does not amount to the imposition of federal jurisdiction in perpetuity. "[F]ederal supervision of local school systems was intended as a temporary measure to remedy past discrimination." Dowell, 498 U.S. at ___, 111 S.Ct. at 637. We simply insist that the school board accomplish the required "transition to a system of public education freed of racial discrimination," id. (quoting Brown v. Board of Educ., 349 U.S. 294, 299-301, 75 S.Ct. 753, 755-57, 99 L.Ed. 1083 (1955)), prior to the relinquishment of federal court jurisdiction.
[8] Indeed, several of the school district's actions across time had directly segregative effects. See Brown, 892 F.2d at 874-77.
[1] The district court's observation that the passage of time and demographic changes "detract from the justification," Brown v. Board of Educ., 671 F.Supp. 1290, 1295 (D.Kan.1987), for the presumption that racial imbalance is attributable to the school board is similar to Justice Scalia's observation in Freeman: "At some time, we must acknowledge that it has become absurd to assume, without any further proof, that violations of the Constitution dating from the days when Lyndon Johnson was President, or earlier, continue to have an appreciable effect upon current operation of schools." ___ U.S. at ___, 112 S.Ct. at 1453 (Scalia, J., concurring). Be that as it may, the district court indicated that, regardless of the presumption, the "defendants have proven by

a preponderance of the evidence that U.S.D. # 501 is a unitary school system." Brown, 671 F.Supp. at 1295 (emphasis added).
[2] In its prior opinion holding the district court's unitariness finding "clearly erroneous," this court claimed that it did not rely on expert opinion, but rather uncontroverted evidence concerning the racial composition of the various schools and what the school district did or did not do to meet its affirmative duty. Brown, 892 F.2d at 868 n. 50. See also id. at 911-913 (Baldock, J., dissenting). The Supreme Court is fully aware of the importance of expert testimony in school desegregation cases. This case is no different. The conflicting expert testimony in this case should be considered by the trier of fact.
[3] The data on faculty/staff assignment is particularly well-suited for district court findings. See Brown, 892 F.2d at 927-935 (discussing problems with this court's factual findings).
[4] Identifying a "potential problem with Dowell," this court determines that to demonstrate "good faith," before incremental withdrawal of federal control will be allowed, a school system must demonstrate its "continued commitment to integration." Court's Opinion at 592. This requirement could make the withdrawal of federal court supervision more apparent than real if it requires the promise of affirmative conduct on the part of the school board once a district becomes unitary. Good faith compliance with a desegregation decree "over a reasonable period of time" is relevant because it is "evidence that any current racial imbalance is not the product of a new de jure violation, and enables the district court to accept the school board's representation that it has accepted the principle of racial equality and will not suffer intentional discrimination in the future." Freeman, ___ U.S. at ___, 112 S.Ct. at 1449-50 (emphasis added and citation omitted). Although this court is anxious to deal with "the possibility of immediate resegregation following a declaration of unitariness," Court's Opinion at 592, that question is not before us. This court's forward cast to the definition of good faith appears to be from the same bolt of cloth as Dowell v. Board of Educ., 890 F.2d 1483, 1490 (10th Cir.1989) ("For this reason, the court's jurisdiction extends beyond the termination of the wrongdoing ... because an injunction seeks to stabilize a factual setting with a judicial ordering and maintain that condition which the order sought to create.") (citation omitted), rev'd, 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991).
[5] The district court found that de jure system was not responsible for residential choice which resulted in racially imbalanced schools. Brown, 671 F.Supp. 1290. See also Freeman, ___ U.S. at ___, 112 S.Ct. at 1454 (Souter, J., concurring) (school segregation may cause residential segregation).
[6] The similarity between Justice Blackmun's opinion concurring in the judgment in Freeman, ___ U.S. at ___, 112 S.Ct. at 1457-60, and this court's opinion in Brown, 892 F.2d 851, is all too obvious. Justice Blackmun thought it imperative that the district court reexamine its conclusion that DCSS had met its affirmative duty and was unitary with respect to student assignment. Freeman, ___ U.S. at ___, 112 S.Ct. at 1460. He was of the view that, analyzed under the correct legal principles, DCSS could not prove that its past segregative acts were not responsible for current (and pronounced) racial imbalance. A majority of the Court, however, did not join in that approach. We should not follow it here.
[7] As Judge Selya recently observed in another context:
One implication of the recent Supreme Court school desegregation decisions is that federal courts, at least in the minerun of civil rights and institutional reform cases, have no choice but to make decisions about the maintenance, modification, or dissolution of structural remedial orders by referring to the most current population statistics readily available. After all, knowledge of demographic shifts is essential for determining whether patterns of minority representation in state institutions and organizations reflect state action, which has constitutional implications, or private preferences, which, generally, do not. See, e.g., Freeman v. Pitts, ___ U.S. ___, ___ - ___, ___ - ___, 112 S.Ct. 1430, 1437-38, 1447-48, 118 L.Ed.2d 108 (1992)
Mackin v. City of Boston, 969 F.2d 1273, 1276-77 (1st Cir.1992).
[8] Belvoir and Highland Park North were annexed to the Topeka district in 1959 with substantial majorities of white students; Lafayette was an all white de jure school in 1954. See Brown, 892 F.2d at 936, 938-39 (Baldock, J., dissenting). The district court in Freeman relied on similar facts in concluding that two majority black schools were not vestige schools in 1969. ___ U.S. at ___, 112 S.Ct. at 1439.

[9] Topeka also has far less racial imbalance than that created in Oklahoma City under a 1984 student reassignment plan. The plan resulted in eleven out of sixty-four elementary schools becoming 90%+ black as to student assignment. Dowell, 498 U.S. at ___, 111 S.Ct. at 634.
[10] The court of appeals had flatly rejected the district court's decision that DCSS had no further responsibility concerning student assignment:
The plaintiffs argue that DCSS never achieved a constitutionally-sufficient level of desegregation. The plaintiffs argue that until the DCSS achieves unitary status, it must affirmatively move toward the maximum practical level of desegregation. The plaintiffs also argue that demographic shifts do not excuse the DCSS's resegregation.
The DCSS argues that it fulfilled its duties in the area of student assignment when it closed all de jure black schools following the district court's 1969 order. The DCSS argues that the district court properly refused to find it responsible for segregation caused by demographic changes.
We hold that a school system that has not achieved unitary status must take affirmative steps to gain and maintain a desegregated student population. The DCSS may not shirk its constitutional duties by pointing to demographic shifts occurring prior to unitary status. Accordingly, we reverse the district court's conclusion that DCSS fulfilled its constitutional obligations in the area of student assignment.
....
Student segregation, prior to achieving unitary status, indicates that vestiges remain. Therefore, the DCSS must continue to work toward desegregation until it removes all vestiges. The fact that the DCSS achieved racial parity in the area of student assignment on the day it closed the de jure black schools does not demonstrate that it fulfilled its duties to achieve maximum possible desegregation and to avoid the reestablishment of a dual system.
Pitts v. Freeman, 887 F.2d 1438, 1448-49 (11th Cir.1989) (footnote omitted), rev'd, ___ U.S. ___, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992).
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 </s> Brown v. Board of Ed. of Topeka, Shawnee County, Kansas, 84 F.R.D. 383 (1979)

84 F.R.D. 383 United States District Court, D. Kansas.
Oliver BROWN et al., Plaintiffs, and
Charles and Kimberly Smith, minor children, by their Mother and next friend, Linda Brown Smith, Danielle Threatt, a minor child, by her Mother and next friend, Juda Gaines, Shawn, Tanya and Tara Woods, minor children, by their Mother and next
friend, Joyce Woods, Cordellia Mitchell and Connie Maxwell, minor children, by their Mother and next friend, Barbara Mitchell, Arlene Jackson,
a minor child, by her Mother and next friend, Charlene Burkes, Carlesia and Cheryl Robinson, minor children, by their Mother and next friend, Patricia Robinson, Rufus D. and Michelle Kelley, minor children, by their Father and next friend,
Rufus Kelley, John, Jackie, Johnny and Viola Davis, minor children, by their Mother and next
friend, Ruby Davis, Intervening Plaintiffs, v.
BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS, et al.,
Defendants.
No. T-316. | Nov. 29, 1979.
Attorneys and Law Firms
*386 Richard E. Jones, Charles Scott, Sr. and Charles Scott, Jr., Joseph D. Johnson, Topeka, Kan., Bruce J. Ennis, Jr., Nonresident Atty., National Legal Director of the American Civil Liberties Union, New York City, E. Richard Larson, Nonresident Atty., New York City, for intervenors.
Charles N. Henson, Jr., K. Gary Sebelius, Topeka, Kan., for defendants.
Opinion
ROGERS, District Judge.
I. INTRODUCTION
On August 22, 1979, certain Black parents and school children currently enrolled in Unified School District # 501 filed two motions in this case: (1) Motion to Intervene as Named Plaintiffs, and (2) Motion For An Order Commanding Compliance With the Supreme Court Mandate to Desegregate the Schools in the Case of Brown v. Board of Education of Topeka, 349 U.S. 294, 75 S.Ct.

753, 99 L.Ed. 1083. This case comes before the Court for decision on the motion to intervene. The Court is now prepared to rule upon the request that another chapter be written in what has been termed “the Case of the Century.”1

1

H. Speer, The Case of the Century: A Historical and

Social Perspective on Brown v. Board of Education of

Topeka With Present and Future Implications, 1 (1968).

II. HISTORICAL SETTING
The Court deems it appropriate and helpful to set forth in some detail the history of *387 school desegregation litigation in Topeka. Many of the facts which will appear in this background discussion are relevant to a resolution of the pending motion to intervene.
A. BROWN v. BOARD OF EDUCATION, T-316. This historic action was commenced on February 28, 1951. The amended complaint, filed March 22, 1951, reflects that plaintiffs were twenty Black elementary school students who brought this action by and through their parents. Defendants included the Board of Education of Topeka, the superintendent of the Topeka Public Schools, and the principal of an elementary school.
The complaint alleged that while White Children of elementary school age were allowed to go to the school within the designated boundaries of the school district within which they lived, the plaintiffs were forced to leave the districts within which they lived to attend separate all-Negro schools solely on the basis of race in violation of the Fourteenth Amendment to the Constitution of the United States.
The case was filed as a class action; the complaint alleged:
Plaintiffs bring this action on their own behalf and also on behalf of all citizens similarly situated and affected, pursuant to Rule 23A of the Federal Rules of Civil Procedure, there being common questions of law and fact affecting the rights of all Negro citizens of the United States similarly situated who reside in cities in the State of Kansas in which separate public schools are maintained for white
1

Brown v. Board of Ed. of Topeka, Shawnee County, Kansas, 84 F.R.D. 383 (1979)

and Negro children of public school age, and who are so numerous as to make it impracticable to bring them all before the Court.
Plaintiffs requested injunctive and declaratory relief. The ruling of the court was sought as to the following questions:
(a) The question of whether the state statute Ch. 721724 of the General Statutes of Kansas, 1935, is unconstitutional in that it gives to defendants the power to organize and maintain separate schools for the education of white and colored children in the City of Topeka, Kansas.
(b) The question of whether the customs and practices of the defendants operating under Ch. 72-1724 of the General Statutes of Kansas, 1935, are unconstitutional in that they deny infant plaintiffs the rights and privileges of enrolling, attending and receiving instruction in public schools of the district within which they live while such rights and privileges are granted to white children similarly situated; where the basis of this refusal and grant is the race and color of the children, and that alone.
(c) The question of whether the denial to infant plaintiffs, solely because of race, of educational opportunities equal to those afforded white children is in contravention of the Fourteenth Amendment to the United States Constitution as being a denial of the equal protection of the laws.
On June 11, 1951, the State of Kansas intervened as a defendant in the case. Trial to a three-judge court was held on June 25 and 26, 1951. The Court’s findings of fact, conclusions of law, and opinion were filed on August 3, 1951. 98 F.Supp. 797. There were two major aspects to the court’s holding. First, it was held that the evidence showed the schools for Black children and the schools for White children were comparable in facilities, curricula, courses of study, and quality of teachers. Second, the court, citing Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) and Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 72 L.Ed. 172 (1927), declined to hold that segregation of the races, Per se, was a violation of the Fourteenth Amendment.
Plaintiffs appealed the three-judge court’s decision to the United States Supreme Court where the case was consolidated with similar actions from South Carolina, Virginia, Delaware, and the District of Columbia. The Supreme Court rendered its momentous decision (“Brown I” ) on May 17, 1954. 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. Speaking for a unanimous Court, Chief Justice Warren framed the issue as follows:

*388 Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.
In explaining the ruling, the opinion relied heavily upon a finding of fact issued by the trial court in this case. Justice Warren wrote:
To separate (children in grade and high schools) from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:
“Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of the child to learn. Segregation with the sanction of law, therefore, has a tendency to (retard) the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial(ly) integrated school system.”
We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. (347 U.S. at 494-495, 74 S.Ct. at 691692)
The Supreme Court’s opinion concluded by ordering reargument on the issue of relief in light of the “considerable complexity” of the matter due to the fact, Inter alia, that “these are class actions.” 347 U.S. at 495,
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Brown v. Board of Ed. of Topeka, Shawnee County, Kansas, 84 F.R.D. 383 (1979)

74 S.Ct. 686.
The Supreme Court’s order on relief (“Brown II” ) was issued on May 31, 1955. 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083. Recognizing the variety of problems that would be confronted and the essentially local nature of the responsibility for education, the opinion remanded the cases to the trial courts for further hearings. The trial courts were directed to “require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling.” (349 U.S. at 300, 75 S.Ct. at 756). Noting that the trial courts should hold such proceedings and enter such orders as would be necessary to admit the plaintiffs to public schools on a racially nondiscriminatory basis with “all deliberate speed,” the Supreme Court directed that “(d)uring this period of transition, the (trial) courts will retain jurisdiction of these cases.” (349 U.S. at 301, 75 S.Ct. at 756).
In accordance with the Supreme Court’s mandate, the three-judge court held a hearing on August 24, 1955, to determine whether the Topeka school board’s proposed four-step desegregation plan would fully comply with the Supreme Court’s decision in Brown I. The court’s decision, rendered on October 28, 1955 (139 F.Supp. 468), concluded as follows:
It is the conclusion of the court that while complete desegregation has not been accomplished in the Topeka School System, a good faith effort toward that end has been made and that, therefore, the plan adopted by the Board of Education of the City of Topeka be approved as a good faith beginning to bring about complete desegregation. Jurisdiction of the cause for the purpose of entering the final decree is retained until such time as the Court feels there has been full compliance with the mandate of the Supreme Court. (139 F.Supp. at 470)
*389 Although the school board’s four-step plan was fully implemented by September 1, 1961, no further orders were issued by the Court in this case. At no time has this Court held that the Topeka school system was (or was not) in “full compliance” with the Supreme Court’s rulings.
It appears that there was no further litigation regarding desegregation of the Topeka school system until the filing of Johnson v. Whittier, No. T-5430.
B. JOHNSON v. WHITTIER, T-5430.

Johnson was filed on September 10, 1973. Defendants included various state agencies and officials and the board of education of Unified School District # 501, successor to the Topeka board of education.2 Johnson was filed as a class action brought on behalf of a class originally defined as all Black children who were then or had during the past ten years been students of elementary and junior high schools in East Topeka and North Topeka. The complaint concentrated more on equality of facilities than distribution of students, alleging that the children in West Topeka and South Topeka received vastly superior educational facilities and opportunities, including buildings, equipment, libraries and faculties, than could be obtained by students in the areas of East Topeka and North Topeka, which contained higher percentages of minority students. Johnson requested injunctive relief and damages in the sum of $10,000 actual damages and $10,000 punitive damages for each of an estimated 10,000 class members.

2

On July 1, 1966, Kansas law replaced the Board of

Education of Topeka, also known as Topeka School

District No. 23, Shawnee County, Kansas with Unified

School District # 501.

Judge Templar denied class action status in an order dated October 9, 1975. An appeal of that order was dismissed by the Tenth Circuit, and certiorari was denied by the Supreme Court. The case proceeded for a time as an individual action and was eventually settled and dismissed on December 15, 1978.
Several notable features of the Johnson case should be briefly mentioned. First, the filing of the Johnson case spawned an investigation by the Department of Health, Education and Welfare into the practices of the Topeka public schools regarding race discrimination. This investigation led to the filing of U. S. D. # 501 v. Weinberger, No. 74-160-C5, to be discussed Infra. On August 27, 1974, plaintiff in Johnson moved to consolidate that action with the Weinberger case and with this case. The motion to consolidate, so far as we can determine from the file, was never decided.
Second, we note that throughout the course of the Johnson litigation it was the position of defendant school board that the action should be dismissed and plaintiff should be required to intervene in this case in order to press her discrimination claim. On May 29, 1973, the board of education moved to dismiss the Johnson case, stating:
In support hereof, movant would show that the issues herein are already subject to the jurisdiction of this Court, retained in Brown v. Board of Education of Topeka, 139
3

Brown v. Board of Ed. of Topeka, Shawnee County, Kansas, 84 F.R.D. 383 (1979)

F.Supp. 468 (1955), where no final decree has been entered.

In a brief filed on March 3, 1977, the school board made the following statement in opposing plaintiff’s motion for reconsideration of the class action issue:
The District Court in Brown has never entered a decree ending its jurisdiction respecting desegregation of Topeka schools and none of the Brown Plaintiffs have filed objections to its plan of desegregation approved by the Court and carried out by the school administration.
By September 1, 1963, the desegregation plan was fully implemented. Since that time, the Topeka school system has been maintained according to the approved plan, as a completely desegregated neighborhood system. The Plaintiff in this case should not be allowed to maintain this action independently of Brown; but should be required to file a motion to intervene in Brown. *390 This action should simply be dismissed. (Brief at p. 23)3

3

See also March 3, 1977 brief at p. 25, and the statement

of counsel Fisher at May 3, 1977 hearing, Tr. 8.

C. U. S. D. # 501 v. WEINBERGER, 74-160-C5. As indicated above, the filing of the Johnson suit apparently led to initiation of an investigation of the Topeka schools by H.E.W. That investigation resulted in H.E.W.‘s conclusion that the Topeka schools were not in full compliance with the law regarding desegregation. Therefore, pursuant to 42 U.S.C. s 2000d-5, H.E.W. prepared to cut off federal aid to the Topeka schools and scheduled an administrative hearing on the matter.
On August 7, 1974, U.S.D. # 501 filed an action to enjoin the cut off of federal funds and to enjoin H.E.W. from holding the administrative hearing. It was the school board’s theory that Brown v. Board of Education was still an open case and that H.E.W. was thereby precluded from holding an administrative hearing by 45 C.F.R. 80.4(c), which stated that a school system shall be deemed to be in compliance with the relevant statutes if it “is subject to a final order of a court of the United States for the desegregation of such school or school system.” (Complaint, p. 4)
At the August 15, 1974 preliminary injunction hearing, the school Board’s attorney Porter made the following statement concerning the board’s position:

When no ruling was made on the motion to dismiss, the school board filed a motion requesting such a ruling. On August 24, 1978, the motion requesting a ruling was orally overruled for unspecified reasons.
Finally, we note that Judge Templar, in his order denying class certification, stated:
The actions pending in this Court, Unified School District No. 501 v. Weinberger, No. 74-160-C5, and Brown v. Board of Education, Civil Action No. T-136, while not technically class actions, are consolidated actions brought to obtain the identical declaratory and injunctive relief sought by the plaintiff. These actions are already commenced and are pending an early disposition. (Order, p. 8)
On the basis of the pendency of Weinberger and Brown, Judge Templar held that Johnson’s claim for declaratory and injunctive relief could not proceed as a class action because it did not meet the requirement of F.R.Civ.P. 23(b)(3) that the class action be superior to other methods available for the fair and efficient resolution of the controversy.

And then in this decision (of October 28, 1955) the District Court approved a plan for desegregation, which had been submitted by the Defendant Board of Education. The Court the District Court in this latter decree, which I refer to specifically retained jurisdiction for the purpose of entering it’s (sic) Final Decree until such time as the Court feels that there has been full compliance with the mandate of the Supreme Court. And the allegations and contentions are that the Court has exclusive jurisdiction to determine whether or not the Topeka school system is in violation of the Final Order or Judgment and the Court approved plan for desegregation. (Tr. 7)
During the hearing, the school board placed Dr. Merle Bolton, then Superintendent of Schools in U.S.D. # 501 on the witness stand. When queried regarding the status of this action, Dr. Bolton stated: “I don’t think there is any question about the fact that this school system has been under Court Order.” (Tr. 52)
4

Brown v. Board of Ed. of Topeka, Shawnee County, Kansas, 84 F.R.D. 383 (1979)

H.E.W. took the position that the October 28, 1955 order of the three-judge court was not a final order within the meaning of the pertinent regulation. The H.E.W. attorney also stressed that while the original plaintiffs in our case were attacking segregation at only the elementary school level, H.E.W. was charged with investigating discrimination in all its aspects at all levels of the public school system. (Tr. 76)
*391 Noting that 42 U.S.C. s 2000(d)-5 provided that compliance with “a final order or judgment of a Federal court for the desegregation of the school or school system” should be deemed compliance with the statute, Judge Templar granted U.S.D. # 501’s motion for a preliminary injunction by order of August 23, 1974. Judge Templar emphasized the wording of the October 28, 1955 order in which the three-judge court retained jurisdiction of the action, and he characterized said order as a final appealable judgment. Judge Templar wrote, in part:
The opinion and order of this Court constituted a judgment. The fact that jurisdiction was retained for the purpose of giving the matter further consideration did not make the opinion and order any less a judgment. Many judgments are entered by this Court with the provision that jurisdiction be reserved for the purpose of seeing to it that the Court’s judgment is carried out correctly. 10 Wright & Miller, Federal Practice & Procedure, s 2651, p. 14; Rodriquez v. San Antonio School District, 337 F.Supp. 280. (Order at p. 5)
Judge Templar, in language quite relevant to the matter at hand, further stated:
This Court is open and available to hear any charges or claims that legal requirements have not been met by the School District as it relates to racial discrimination condemned in Brown v. School Board. (Order at p. 7)
The Weinberger case was eventually dismissed by stipulation of the parties on October 20, 1976.
D. MILLER v. BOARD OF EDUCATION, 79-1408, and CHAPMAN v. BOARD OF EDUCATION, 791473. The Miller case is a class action filed on August 8, 1979.

The complaint alleges illegal segregation in U.S.D. # 501 and requests injunctive relief, including cross-town busing.
Chapman was filed on September 7, 1979. It is a class action alleging illegal segregatory practices and requesting primarily monetary relief for a proposed class of 10,000 along the lines of Johnson v. Whittier.
No substantial activity has yet occurred in either case.

E. THE PENDING MOTION TO INTERVENE. An attempt is now being made to reactivate this case as a part of the latest round of desegregation litigation in Topeka. Various Black children who attend grade schools, junior high schools, and high schools in Topeka have sought by and through their parents to intervene as named plaintiffs in this action.4 Served as defendant is U.S.D. # 501. The State of Kansas was not served and has been dismissed from the action upon agreement of the parties.

4

It is interesting to note that Linda Brown Smith whose

name graces the caption of this case is one of the

present applicants acting on behalf of her children.

The applicants for intervention assert that this action is still open for such intervention, that they are members of the original class represented in this case, that the original named plaintiffs do not have a sufficient interest in the matter to represent applicants’ interests, and that applicants are “successors” to the original named plaintiffs, and have a current stake in the litigation. Applicants wish to appear before this Court to request a further exercise of the Court’s jurisdiction in order to review and mandate compliance with the Supreme Court’s decisions in Brown I and Brown II.
If allowed to intervene, applicants would claim that the defendant has failed to comply with the Supreme Court mandate in the following respects:
1. The School District has established school attendance zones which perpetuate racially segregated schools;
2. The facilities, equipment, curriculum and instruction provided in those schools with disproportionately high Black enrollment are substantially inferior to those provided for the schools where there is a disproportionately high White enrollment;
*392 3. Black teachers, counselors and other Black personnel are assigned to schools where Black enrollment is disproportionately high. White teachers,
5

Brown v. Board of Ed. of Topeka, Shawnee County, Kansas, 84 F.R.D. 383 (1979)

counselors and other White personnel are assigned to schools where White enrollment is disproportionately high;
4. The School District has adopted and implemented an open enrollment policy which will continue to perpetuate racially segregated schools; and
5. The long range facilities plan adopted and implemented by the School District further perpetuates the racially segregated schools.
The motion for leave to intervene was filed on August 22, 1979. On October 17, 1979, defendant U.S.D. # 501 filed a brief in opposition to the motion. Oral judgment was held on November 9, 1979, and the Court is now prepared to rule.
III. STATEMENT OF THE ISSUE.
It should be emphasized that the merits of the applicants’ claims, which are contained in their motion for an order commanding compliance, are in no way involved in the resolution of the pending motion. The Court recognizes, and defendant apparently admits, that the applicants have the right to present their claim that defendant is not complying with the mandates of Brown I and Brown II. The difference of opinion arises over which vehicle the applicants should utilize to present their claims. Applicants seek to present their claims within the framework of this case. Defendant claims that the claims should be presented in an entirely new lawsuit. This procedural dispute is the only question presented for the Court’s consideration at this time.
[1] Thus, the issue presented may be simply stated: Should the Court, within its discretion, permit the applicants to assert their claims within the framework of this action? The question, we believe, is a close one. The answer, we hold, is in the affirmative.

A. IS THERE A CASE OR CONTROVERSY SUFFICIENT TO SUPPORT THIS COURT’S JURISDICTION? Defendant asserts that because the claims of all original named plaintiffs in this case are now moot, applicants cannot intervene to keep the action alive because this was never a properly certified class action.
[2] As a general rule, consideration of a motion for leave to intervene presupposes the existence of an action into which intervention can be accomplished. Black v. Central Motor Lines, Inc., 500 F.2d 407, 408 (4th Cir. 1974); Hofheimer v. McIntee, 179 F.2d 789, 792 (7th Cir.), Cert. denied, 340 U.S. 817, 71 S.Ct. 47, 95 L.Ed. 600 (1950); In re V-I-D, 177 F.2d 234, 236 (7th Cir. 1949), Cert. denied, 339 U.S. 904, 70 S.Ct. 518, 94 L.Ed. 1333 (1950); Hartley Pen Co. v. Lindy Pen Co., 16 F.R.D. 141, 146 (S.D.Cal.1954) (“A pending suit within federal jurisdiction is by definition prerequisite to intervention.”).
[3] [4] The parties agree that the original named plaintiffs in this action no longer have a life stake in its continued litigation. Their claims are moot.5 It is clear that *393 mootness deprives a court of jurisdiction. As the Supreme Court noted in its Per curiam opinion in DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 1705-1706, 40 L.Ed.2d 164 (1974):

5

Defendant also points out that a case can be mooted by

a change in a challenged law, citing Sanks v. Georgia,

401 U.S. 144, 91 S.Ct. 593, 27 L.Ed.2d 741 (1971).

The law challenged in this action, Section 72-1724, was

repealed by the Kansas Legislature effective June 29,

1957. See 1957 Kan.Session Laws, Ch. 389. However,

defendant does not seriously contend that the mandate

of Brown I and Brown II was met by the mere repeal of

this offending law. As applicants point out, the

“affirmative action to dismantle the dual system is not

discharged simply by opening the doors of white

schools to Negro applicants.” United States v. Choctaw

County Board of Education, 417 F.2d 838, 839 (5th

Cir. 1969), quoting United States v. Jefferson County

Board of Education, 372 F.2d 836, 846 (5th Cir. 1966),

Cert. denied, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103

(1967).

IV. DISCUSSION
Defendant opposes the motion to intervene on two grounds. First, defendant claims that there no longer exists any case or controversy sufficient to support the Court’s jurisdiction. Second, defendant argues that applicants do not meet the tests for intervention established by F.R.Civ.P. 24. We shall divide our discussion between these two major contentions.

The starting point for analysis is the familiar proposition that “federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them.” North Carolina v. Rice, 404 U.S. 244, 246, (92 S.Ct. 402, 404, 30 L.Ed.2d 413) (1971). The inability of the federal judiciary “to review moot cases derives from the requirement of Art. III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.” Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3 (, 84 S.Ct. 391, 394, 11 L.Ed.2d 347) (1964); see also
6

Brown v. Board of Ed. of Topeka, Shawnee County, Kansas, 84 F.R.D. 383 (1979)

Powell v. McCormack, 395 U.S. 486, 496, n. 7 (, 89 S.Ct. 1944, 1950, 23 L.Ed.2d 491) (1969); Sibron v. New York, 392 U.S. 40, 50 n. 8 (, 88 S.Ct. 1889, 1896, 20 L.Ed.2d 917) (1968). Although defendant admits that the applicants have a live and concrete interest in the compliance of the Topeka public schools with the mandate of Brown I and Brown II, it argues that the mootness of the claims of the original named plaintiffs ends the case and blocks intervention. Defendant relies primarily upon a line of cases anchored in the Supreme Court’s holding in Indianapolis School Commissioners v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975). In Jacobs, plaintiff high school students claimed that defendants had violated the First and Fourteenth Amendments by interfering with a student newspaper. By the time the action reached the Supreme Court, all named plaintiffs had graduated. The Supreme Court dismissed the case as moot after determining that no class had been properly certified or identified. (420 U.S. at 129-130, 95 S.Ct. 848)
Defendant cites numerous post-Jacobs cases holding that a Court must dismiss an alleged class action where the individual claim of the class representative has become moot, in the absence of a proper certification of the class. See Vun Cannon v. Breed, 565 F.2d 1096, 1098-1099 (9th Cir. 1977); Inmates v. Sheriff Owens, 561 F.2d 560, 562 (4th Cir. 1977); Winokur v. Bell Federal Sav. & Loan Ass’n, 560 F.2d 271, 276-277 (7th Cir.), Cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 530 (1977); Lasky v. Quinlan, 558 F.2d 1133, 1136 (2d Cir. 1977); Napier v. Gertrude, 542 F.2d 825, 827 (10th Cir. 1976), Cert. denied, 429 U.S. 1049, 97 S.Ct. 759, 50 L.Ed.2d 765 (1977).
[5] [6] We do not find defendant’s reliance upon the Jacobs line of cases to be persuasive. The law is clear that where a class action exists, members of the class may intervene to keep an action alive after the claims of the named plaintiff are rendered moot. In 3B Moore’s Federal Practice P 23.90(2), p. 23-548 (1978), we find:
Where for some reason the original named party may no longer represent the class, e. g., his claim has become moot or he no longer represents the interests of the class, intervention is often permitted in order to allow the action to continue.
See Rogers v. Paul, 382 U.S. 198, 199, 86 S.Ct. 358, 15 L.Ed.2d 265 (1965); Goodman v. Schlesinger, 584 F.2d 1325, 1333 (4th Cir. 1978); Gaddis v. Wyman, 304 F.Supp. 713, 715-716 (S.D.N.Y.1969); Smith v. Josten’s Am. Yearbook Co., 78 F.R.D. 154, 172 (D.Kan.1978); Taylor v. Kerr, 73 F.R.D. 691, 694 (M.D.N.C.1977).

[7] Indeed, it is well known that desegregation cases can involve prolonged litigation. Therefore, the mootness problem caused by the graduation of named plaintiffs is a constant consideration. It has long been recognized that the class action device should be used in desegregation cases for this very reason. Class Actions: A Study of Group-Interest Litigation, 1 Race Rel.Rep. 991, 1009 (1956); 20 Univ. of Chi.L.Rev. 577, 578-579 (1953). Thus, in one such *394 lengthy siege, Kelley v. Metropolitan County Bd. of Ed. of Nashville, 463 F.2d 732, 743 (6th Cir.), Cert. denied, 409 U.S. 1001, 93 S.Ct. 322, 34 L.Ed.2d 262 (1972), the court noted:

. . . such a class action as this

dealing

with

continuing

constitutional violations does not

become moot because of years of

delay (much of it attributable to

appellants) which occasioned the

graduation of the named, original

student plaintiffs from the school

system before final decision.

Defendant takes the position that this case is not a class action and therefore, as in the Jacobs line of cases, there is no viable action in which to intervene now that the claims of the named plaintiffs have been mooted. After reviewing the file, the Court cannot accept defendant’s conclusion. We find this case to be a class action. This case was filed as a class action; Rule 23 was specifically mentioned in plaintiffs’ amended complaint. The Supreme Court in Brown I specifically referred to the actions before it as class actions. In Brown II, the lower courts were ordered to retain jurisdiction of the cases during the implementation of the mandate of Brown I without regard to the possible graduation of named plaintiffs. The legal literature of the time and the legal literature today refers to this case as a class action. See Jurow, School Desegregation, Class Suits, and the Vexing Problem of Group Remedies, 80 West Va.L.Rev. 25, 26 (1976); 1 Race Rel.Rep., Supra at 991. This Court is not inclined to tell the Supreme Court that it erred in Brown I when it stated “these are class actions.” (347 U.S. at 495, 74 S.Ct. 686).
Defendant’s second-line position is that even if this case was treated as a class action by the trial court, the Supreme Court, and the legal literature, it was inadequately certified, as was the action in Jacobs. Defendant claims that the class was not properly identified and class members would therefore be unable to adequately protect their interests were this case reactivated at this date.
[8] [9] While we find defendant’s position reasonable, we do not believe that it is completely realistic to blindly
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Brown v. Board of Ed. of Topeka, Shawnee County, Kansas, 84 F.R.D. 383 (1979)

apply Jacobs to an action brought twenty years earlier. It is true that this action was not properly certified pursuant to F.R.Civ.P. 23(c). It is also true that this provision for class certification did not come into existence until the 1966 amendments to Rule 23. 7A C. Wright & A. Miller, Federal Practice and Procedure: Civil s 1785, p. 128 (1972). Lack of certification is therefore not surprising. Defendant correctly points out that the exact definition of the class in this case was never concretely established. However, under the rudimentary class action law existing at the time this action was filed, no such requirement clearly existed. 20 U.Chi.L.Rev., Supra at 586.
In short, we believe it would be unfair and unrealistic to judge the handling of the class action portion of this case in 1951 by the standards which did not come into existence until nearly fifteen years later. This was intended to be a class action. It was a prototypical class action. From the relief ordered, it seems obvious that the class consisted of Black students attending elementary schools in the Topeka school district. In light of the prospective nature of the relief ordered, it is further obvious that the class definition included future members of the class. To clarify this definition at this time would not prejudice any past members of the class; defendant’s claims in this regard are illusory. Proper provision for notice at this time would prevent prejudice to any present and future members of the class.6

6

The parties should give serious consideration, as will

the Court, to the question of whether some sort of class

action notice might be appropriately sent class

members at this time. Entertaining all of applicant’s

claims will require expansion of the original class

definition. The Court stands ready to allow such

amendments as will be required to frame applicant’s

claims for proper resolution. We recall that class

actions are an essential part of the judicial arsenal for

combating racial discrimination and for that reason

courts will respond with flexibility to such claims.

Satterwhite v. City of Greenville, 578 F.2d 987, 998

(4th Cir. 1978). Post-judgment class certification is not

unheard of. Marshall v. Kirkland, 602 F.2d 1282, 1301

(8th Cir. 1979).

*395 Even if we were to assume that this was not a proper class action, and we do so for purposes of argument only, we would find unpersuasive defendant’s reliance upon the Jacobs line of cases. None of defendant’s cases, except the 1963 decision in Becton v. Greene County Board of Education, 32 F.R.D. 220 (E.D.N.C.1963), involved a situation in which intervenors were attempting to keep the action alive. In Jacobs and the cases cited by defendant which have followed it, there were no potential intervenors to keep the action alive. There is a strong line of cases which holds that even if the named plaintiff’s claims are moot, a court may, in its discretion, hear claims

of intervenors even if it has to treat them as an entirely new lawsuit.
In Hackner v. Guaranty Trust Co. of New York, 117 F.2d 95, 98 (2d Cir.), Cert. denied, 313 U.S. 559, 61 S.Ct. 835, 85 L.Ed. 1520 (1941), the case came before the court upon a motion to add a new named plaintiff after it was clear that none of the original plaintiffs had a claim in the jurisdictional amount. The court held that the claims of the new proposed plaintiff, Eastman, could be considered within the context of the existing action:
This disposes of the case as to all the plaintiffs except Eastman. Since she alleged grounds of suit in the federal court, the only question is whether or not she must begin a new suit again by herself. Defendants’ claim that one cannot amend a nonexistent action is purely formal, in the light of the wide and flexible content given to the concept of action under the new rules. Actually she has a claim for relief, an action in that sense; as the Supreme Court has pointed out, there is no particular magic in the way it is instituted. Chisholm v. Gilmer, 299 U.S. 99, 57 S.Ct. 65, 81 L.Ed. 458, upholding a suit instituted by mere motion for judgment. . . . Hence, no formidable obstacle to a continuance of the suit appears here, whether the matter is treated as one of amendment or of power of the court to add or substitute parties, Federal Rule 21, or of commencement of a new action by filing a complaint with the clerk, Rule 3. In any event we think this action can continue with respect to Eastman without the delay and expense of a new suit, which at long last will merely bring the parties to the point where they are now.
This rule of law was applied by our Circuit in Miller & Miller Auction, Inc. v. G. W. Murphy Indus., Inc., 472 F.2d 893, 895-896 (10th Cir. 1973), which was an auctioneer’s interpleader action in which the federal government intervened to protect a tax lien. Although the Court held that the main action had to be dismissed as an improper interpleader because plaintiff failed to deposit in the court registry the entire sum in controversy, it nonetheless determined to hear the intervenor’s claims:
8

Brown v. Board of Ed. of Topeka, Shawnee County, Kansas, 84 F.R.D. 383 (1979)

Nor does the fact this interpleader action was improperly brought destroy the government’s judgment on its counterclaim as an intervenor. A court has discretion to treat pleadings of an intervenor as a separate action to adjudicate claims raised by the intervenor. See Hackner v. Guaranty Trust Co., 117 F.2d 95 (2d Cir. 1941), cert. denied 313 U.S. 559, 61 S.Ct. 835, 85 L.Ed. 1520; Pikor v. Cinerama Prods. Corp., 25 F.R.D. 92 (S.D.N.Y.1960); Truncale v. Universal Pictures Co., 76 F.Supp. 465 (S.D.N.Y.1948); 3B Moore, Federal Practice s 24.16(2) at 24613, 614 (2d ed. 1969); 7A Wright & Miller, Federal Practice & Procedure, Civil s 1917 (1972). The court may properly exercise this discretionary procedure where it appears the intervenor has a separate and independent basis for jurisdiction and in which failure to adjudicate the claim will result only in unnecessary delay.

See also Healy v. Edwards, 363 F.Supp. 1110, 1112-1113 (E.D.La.1973); In re Raabe, Glissman & Co., 71 F.Supp. 678, 680 (S.D.N.Y.1947).
[10] This discretionary rule of law has been utilized at least twice to keep alive *396 non-class action school desegregation cases where it clearly appeared that the claims of the named plaintiffs were not viable. See Atkins v. State Board of Education of North Carolina, 418 F.2d 874, 876 (4th Cir. 1969); Fuller v. Volk, 351 F.2d 323, 328-329 (3d Cir. 1965). We believe that the general criteria for application of this rule are present in the case at hand. It is clear that the intervenors present their claims in an adversary relationship sufficient to fulfill the “live controversy” requirement. Franks v. Bowman Transportation Co., 424 U.S. 747, 755-756, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). Therefore, if it is assumed for purposes of argument that this is not a proper class action, we nonetheless decline to apply Jacobs7 and determine to hear the merits of the applicants’ claims within the framework of this action If the proper criteria for intervention are met. It is to the question of the propriety of intervention that we now turn our attention.

7

The latest supplements to the treatises by Moore and

Wright & Miller give no indication that Jacobs

eliminated a court’s discretion to hear an intervenor’s

claim after the claims of the named plaintiff are

rendered moot. See also Health Research Group v.

Kennedy, 82 F.R.D. 21, 30 (D.D.C.1979).

B. DO APPLICANTS SATISFY THE RULE 24 PREREQUISITES FOR INTERVENTION? [11] Intervention in federal actions is governed by F.R.Civ.P. 24,8 which provides for four basic types of intervention: statutory intervention of right (24(a)(1)), nonstatutory intervention of right (24(a)(2)), statutory permissive intervention (24(b)(1)), and nonstatutory permissive intervention (24(b)(2)). Applicants do not claim any statutory basis for their intervention. Therefore, we must determine whether there is a proper nonstatutory basis for intervention under either Rule 24(a)(2) or 24(b)(2). Our discussion shall center upon nonstatutory intervention of right.

8

Although Rule 24 generally governs intervention, in

Resurrecting Claims through Post-Judgment Appeal of

Class Certification Denial, 64 Iowa L.Rev. 964 n. 3

(1979) it is noted:

Rule 23(c)(2) of the Federal Rules of Civil

Procedure might provide a second intervention

mechanism for class actions. Compare Kaplan,

Continuing Work of the Civil Committee: 1966

Amendments of the Federal Rules of Civil

Procedure (I), 81 Harv.L.Rev. 356, 392 n. 137

(1967) (no intervention procedure implied by rule

23(c)(2), With Comment, The Litigant and the

Absentee in Federal Multiparty Practice, 116

U.Pa.L.Rev. 531, 553 (1968) (rule 23(c)(2)

provides separate intervention procedure from that

in rule 24).

See also Groves v. Insurance Co. of North America,

433 F.Supp. 877, 888 (intervention in class actions is

governed by both Rules 23 and 24).

The general rule appears to be that to the extent Rule

23 does bear on the intervention question, it should

be construed in a manner consistent with Rule 24. 7A

C. Wright & A. Miller, Supra at s 1799, p. 252; 3B

Moore’s Federal Practice, Supra at P 23.90(1), p. 23-

539.

The criteria for intervention under Rule 24(a)(2) are clearly established:
Intervention of right is required under the rule when: (1) the petitioners assert an interest in the subject matter of the primary litigation; (2) there exists a possibility that the petitioners’ interest will be impaired by the final disposition of the litigation; (3) there exists a danger of inadequate protection by the party
9

Brown v. Board of Ed. of Topeka, Shawnee County, Kansas, 84 F.R.D. 383 (1979)

representing the petitioners’ interests; and the petitioners have made timely application to intervene. (Liddell v. Caldwell, 546 F.2d 768, 770 (8th Cir. 1976), Cert. denied 433 U.S. 914, 97 S.Ct. 2987, 53 L.Ed.2d 1100 (1977))
See also United States v. Perry County Bd. of Ed., 567 F.2d 277, 278-279 (5th Cir. 1978); Johnson v. San Francisco Unified School District, 500 F.2d 349, 356 (9th Cir. 1974); Fox Hill Surgery Clinic v. City of Overland Park, No. 77-4120 (D.Kan., 11/9/77, unpublished); 7A Wright & Miller, Supra, at s 1908, p. 495.
[12] The general rule is that intervention is freely allowed. National Farm Lines v. I. C. C., 564 F.2d 381, 384 (10th Cir. 1977); Greer v. Blum, 462 F.Supp. 619, 625 (S.D.N.Y.1978); Assoc. Gen. Contractors of Calif. v. Sec. of Commerce, 459 F.Supp. 766, 771 (C.D.Cal.1978); *397 Fox Hill Surgery Clinic v. City of Overland Park, supra. This rule of liberal intervention has been emphasized by the courts, including the Tenth Circuit, in school desegregation cases. Dowell v. Bd. of Ed. of Oklahoma City, 430 F.2d 865, 868 (10th Cir. 1970); Atkins v. State Bd. of Ed. of North Carolina, supra, 418 F.2d at 876.
With these concepts in mind, we turn to a discussion of the specific criteria for nonstatutory intervention of right.
1. DO APPLICANTS HAVE A PROTECTABLE INTEREST? [13] [14] The first question to be determined in examining an application for intervention of right is whether the applicants assert an interest in the subject matter of the primary litigation. We do not believe that defendant even bothers to dispute that the applicants have a valid, present, and vital interest in the question of whether the defendant’s operation of the Topeka public school system meets the mandates of Brown I and Brown II, as those decisions have been interpreted and applied by the Supreme Court over the years. In fact, the case law indicates that students and parents have a natural legal interest in seeing that a court’s desegregation order is properly carried out. In Johnson v. San Francisco Unified School District, supra, 500 F.2d at 353, the court pointed out:
. . . other courts have recognized that, for purposes of Rule 24(a)(2), all students and parents, whatever their race, have an interest in a sound educational system and in the operation of that system in accordance with the law. (Citing in

n. 5: United States v. Board of School Commissioners of Indianapolis, Indiana, 466 F.2d 573, 575 (7th Cir. 1972); Hatton v. County Board of Education of Maury County, Tennessee, 422 F.2d 457, 460-461 (6th Cir. 1970); Atkins v. State Board of Education of North Carolina, 418 F.2d 874, 876 (4th Cir. 1969); Moore v. Tangipahoa Parish School Board, 298 F.Supp. 288, 293 (E.D.La.1969))
And in Liddell v. Caldwell, supra, 546 F.2d at 770, we find this statement:
We note public interest in the operation of a lawful school system and the fact that students and parents, regardless of race, have standing to challenge a De jure segregated school system.
Whether the Court follows the more liberal standard of cases such as Smuck v. Hobson, 132 U.S.App.D.C. 372, 408 F.2d 175 (D.C. Cir. 1966), or the less liberal Fifth Circuit view which seldom allows intervention to hinder implementation of a desegregation plan (See United States v. Perry County Bd. of Ed., supra, 567 F.2d at 279), it is clear that intervenors who seek proper implementation of a desegregation order have a protectable interest under Rule 24(a)(2).

2. DOES THERE EXIST A POSSIBILITY THAT APPLICANTS’ INTEREST WILL BE IMPAIRED BY THE FINAL DISPOSITION OF THIS ACTION? [15] [16] [17] Defendant argues that the requirement of potential impairment of interest cannot be met in this case because applicants could present their interests in another lawsuit should intervention be denied here. However, when such independent lawsuits have been instituted in the past, defendant has taken the position that they should be dismissed in light of the pendency of this action.9 The Court is not convinced that some derivative of that argument would not be made by defendant were such a separate action filed by intervenors.

9

In fact, because defendant has previously taken the

position that claims such as applicants seek to assert

could not be brought in a separate action but must be

brought through intervention in this case, applicants ask

us to estop defendant from opposing the pending

motion on the basis of the doctrine of judicial estoppel.

Several factors make such an application of the judicial

10

Brown v. Board of Ed. of Topeka, Shawnee County, Kansas, 84 F.R.D. 383 (1979)

estoppel doctrine inappropriate in this situation. For example, a normal prerequisite to application of the doctrine is identity of parties, an element not present here. 28 Am.Jur.2d Estoppel and Waiver s 70, p. 698 (1966). Also, the doctrine normally applies only to statements of fact, not legal conclusions. 31 C.J.S. Estoppel s 117, p. 613 (1964). Nonetheless, in ruling on the pending motion the Court is making many discretionary decisions and the inequity of allowing defendant to assume inconsistent positions need not be totally ignored.
*398 Clearly the intervenors’ interests could be impaired if the defendant came before the Court asking for a declaration of formal compliance with the October 28, 1955 order of the three-judge court. Although defendant claims such compliance, it has never petitioned the Court for such an order. Should such a request be made, the mootness of the original plaintiffs’ claims would mean that no party would be before the Court to present applicants’ point of view. In such an eventuality, the applicants’ interests could be impaired.
Even in the absence of a formal order from the Court, the existence of the October 28, 1955 order’s finding of a “good faith beginning” could impair applicants’ assertion of their claims in another lawsuit. See Stallworth v. Monsanto, 558 F.2d 257, 268 (5th Cir. 1977). Defendant has already made claims of Res judicata and collateral estoppel within the context of this motion, and we foresee that a collateral estoppel claim might be asserted by the defendant, on the basis of the unamended October 28, 1955 order, were intervenors to bring a separate action. See Bronson v. Board of Education, 525 F.2d 344 (6th Cir. 1975), Cert. denied 425 U.S. 934, 96 S.Ct. 1665, 48 L.Ed.2d 175 (1976).
We believe there is a possibility that applicants’ interests could be impaired by the final disposition of this litigation.
3. DOES THERE EXIST A DANGER OF INADEQUATE PROTECTION BY THE PARTY REPRESENTING THE PETITIONERS’ INTERESTS? This requirement for intervention of right is clearly met and needs little discussion. Because the claims of the original representative plaintiffs are now moot, we have little difficulty determining that no party presently in this case would adequately represent the applicants’ interests.
Now that we have concluded that the first three requirements for intervention of right have been met in this case, we turn to a discussion of the final requirement timeliness.

4. IS APPLICANTS’ MOTION TIMELY FILED? [18] [19] [20] The timely filing of a motion for intervention is a prerequisite for leave to intervene under both Rule 24(a) and Rule 24(b). NAACP v. New York, 413 U.S. 345, 365, 93 S.Ct. 2591, 37 L.Ed.2d 648 (1973); United States v. Marion County School Dist., 590 F.2d 146, 148 (5th Cir. 1979); Lumbermens Mutual Casualty Co. v. Rhodes, 403 F.2d 2, 5 (10th Cir. 1968), Cert. denied, 394 U.S. 965, 89 S.Ct. 1319, 22 L.Ed.2d 567 (1969). However, such a motion is less likely to be denied on timeliness grounds if it is made of right. See, Jones, Litigation Without Representation: The Need for Intervention To Affirm Affirmative Action, 14 Harv.C.R.-C.L.L.Rev. 31, 78 (1979). The determination as to timeliness is a flexible one and must be made on a case-by-case basis taking into account all the appropriate circumstances. Stallworth v. Monsanto Co., supra, 558 F.2d at 263-264; McClain v. Wagner Elec. Corp., 550 F.2d 1115, 1120-1121 (8th Cir. 1977); Liddell v. Caldwell, supra, 546 F.2d at 770. The decision is, of course, within the sound discretion of the trial court. NAACP v. New York, supra, 413 U.S. at 365, 93 S.Ct. 2591.
Defendant accurately points out that this case has been essentially inactive for 24 years. There is no doubt that it would be highly unusual to allow intervention in a case which has lain dormant so long. Although defendant suggests that the applicants have slept on their rights, the delay that may be attributed to them is not nearly so long a period of time. Applicants are mere school children, some just in elementary school. Many or all of the applicants, no doubt, were not even born when the last order of the court was issued in this case.
Defendant emphasizes that post-judgment intervention is usually frowned upon by the courts. In McClain v. Wagner Elec. Corp., supra, 550 F.2d at 1120-1121, it was noted:
. . . the fact that a judgment has been entered in the case does not necessarily preclude later intervention. *399 Nevilles v. EEOC, 511 F.2d 303 (8th Cir. 1975); Kozak v. Wells, 278 F.2d 104, 109 (8th Cir. 1960); See generally 7A Wright & Miller, Federal Practice & Procedure, Civil, s 1916. However, there is “considerable reluctance on the part of the courts to allow intervention after the action has gone to judgment and a strong showing will be required of the applicant. Motions for intervention after judgment ordinarily fail to meet this exacting standard and are denied.” Wright & Miller, Supra at pp. 579-80.
[21] [22] Normally, prejudice to the parties is the key factor in determining whether a petition to intervene is timely filed. McDonald v. E. J. Lavino Co., 430 F.2d 1065, 1073
11

Brown v. Board of Ed. of Topeka, Shawnee County, Kansas, 84 F.R.D. 383 (1979)

(5th Cir. 1970); Clanton v. Orleans Parish School Bd., 72 F.R.D. 164, 168 (E.D.La.1976); United States v. International Business Machines Corp., 62 F.R.D. 530, 541-542 (S.D.N.Y.1974). Post-judgment interventions are generally disfavored because of the assumption that they will (1) prejudice the rights of existing parties, and (2) interfere with the orderly processes of the court. Stallworth v. Monsanto, supra, 558 F.2d at 266; United States v. United States Steel, 548 F.2d 1232, 1235 (5th Cir. 1977); Fox Hill Surgery Clinic v. City of Overland Park, supra. However, if neither of these factors is evident, there is no strong reason to deny the motion to intervene merely because it is made after judgment has been rendered.
If neither of these results ((1) prejudice to the rights of the existing parties, or (2) substantial interference with the orderly processes of the court) would occur the mere fact that judgment already has been entered should not by itself require an application for intervention to be denied. Thus although the cases “tend to involve unique situations” and to require “a close examination of all the circumstances of the case,” in a significant number of cases intervention has been allowed even after judgment.
We now turn our inquiry to a determination of whether granting the motion to intervene would prejudice the existing parties or disrupt the processes of the court.
(a) Prejudice to the parties. If applicants were allowed to intervene at this late stage of the litigation, the Court cannot conceive of any prejudice that would occur to the original plaintiffs in this action. Defendant claims that it would be prejudiced in two ways. First, defendant claims that the allocation of the burden of proof might be different if applicants were allowed to proceed within the context of this case rather than initiating a new suit. Second, defendant claims that it would be prejudiced by the new issues which applicants seek to place in issue in this suit.
Regarding the burden of proof, the Court is unable at this stage to find any prejudice to defendant for it appears that the applicants will bear the same burden of proof whether they press their claims as intervenors in this action or as named plaintiffs in new litigation. After a general survey of the case law, it appears to the Court that the initial burden of proof will be upon the applicants under either course of action.
In every case across the country, a plaintiff in a segregation suit faces essentially the same burden to prove that the actions of the defendant school board are not in compliance with the mandates laid down In this case, as those mandates have been interpreted and applied

by the Supreme Court over the years. Thus, whether applicants proceed in this case or another, the orders originally filed in this case, as interpreted and applied over the years, control.
[23] [24] Under either procedural course of action, applicants will have the burden of proof to show (1) that segregated schooling exists, and (2) that it was brought about or maintained by intentional state action. Columbus Board of Education v. Penick, 443 U.S. 449, ——, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979). This showing must be “satisfactorily established by factual proof and justified by a reasoned statement of legal principles.” Dayton Board of Education v. Brinkman, 433 U.S. 406, 410, 97 S.Ct. 2766, 2770, 53 L.Ed.2d 851 (1977) (Dayton I). Once a plaintiff meets this burden of proof *400 as to a meaningful portion of a school district the burden shifts to the school board to show that its actions as to other segregated schools within the system were not also motivated by segregative intent. Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189, 209, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973).
[25] All school systems in the nation which maintained dual schools in 1954 have been under a continuous obligation since that time to establish that dual system. As the Supreme Court stated in Columbus Board of Education v. Penick, supra:
. . . both courts below declared that since the decision in Brown v. Board of Education (II), 349 U.S. 294 (, 75 S.Ct. 753, 99 L.Ed. 1083) (1955), the Columbus Board has been under a continuous constitutional obligation to disestablish its dual school system and that it has failed to discharge this duty . . . Under the Fourteenth Amendment and the cases that have construed it, the Board’s duty to dismantle its dual system cannot be gainsaid.
Where a racially discriminatory school system has been found to exist, Brown II imposes the duty on local school boards to “effectuate a transition to a racially nondiscriminatory school system.” 349 U.S., at 301 (75 S.Ct., at 756). “Brown II was a call for the dismantling of well-entrenched dual systems,” and school boards operating such systems were “clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” Green v. County School Board, 391 U.S. 430, 437-438 (88 S.Ct. 1689, 1694, 20 L.Ed.2d 716) (1968). Each instance of a failure or refusal to fulfill this affirmative duty continues the violation of the Fourteenth Amendment. Dayton I, 433 U.S., at 413-414 (97 S.Ct., at 2771, 2772); Wright v. Council of City of Emporia, 407 U.S. 451, 460 (92 S.Ct. 2196, 2202, 33 L.Ed.2d 51) (1972); United States v. Scotland Neck City Board of Education, 407 U.S. 484 (92 S.Ct. 2214, 33 L.Ed.2d
12

Brown v. Board of Ed. of Topeka, Shawnee County, Kansas, 84 F.R.D. 383 (1979)

75) (creation of a new school district in a city that had operated a dual school system but was not yet the subject of court-ordered desegregation).
See also Dayton Board of Education v. Brinkman, 443 U.S. 526, ——, 99 S.Ct. 2971, 61 L.Ed.2d 720 (1979) (Dayton II); United States v. U.S.D. # 500, 610 F.2d 688 (10th Cir.1979).
[26] Defendant’s counsel suggested in oral argument that although a constitutional violation has already been established in this case, were a new suit instituted the applicants would have the burden to prove that Topeka had a dual school system in 1954. The Court, we believe, may take judicial notice of the fact of the dual school system in 1954. F.R.E. 201. Defendant’s position would not be aided in this regard by forcing applicants to file a new suit. Whether in this action or another, applicants have the initial burden to show that the mandate of Brown I and Brown II has not been met. If they show segregation in fact, then the burden will shift to the school board under either proposed action.10

10

Justice Stewart’s dissent in the Columbus Board of

Education v. Penick case suggests that the majority has

placed too much reliance on the state of the school

system in 1954. Justice Rehnquist’s dissent also pointed

out that there may come a point in time where the

relationship between past segregative acts and present

segregation may become so attenuated as to be

incapable of supporting a finding of De jure segregation

justifying judicial intervention, quoting the Keyes case,

413 U.S. at 211, 93 S.Ct. 2686.

The second aspect of defendant’s claim of prejudice regards the injection of new issues into the action. As originally filed, this case involved only Topeka’s elementary schools, which were segregated by law. Junior and senior high schools were not segregated by law in Topeka in 1951 and therefore were not a part of this action. The present applicants seek to expand the scope of the Court’s inquiry to include junior and senior high schools. The applicants also ask the Court to look at the equality of facilities between schools in U.S.D. # 501 that are predominantly attended by White *401 students and those that are predominantly attended by Black students. Defendant claims that the original trial court order in this case found in favor of defendant on the equality of facilities issue and that the issue cannot be inquired into again. Finally, the applicants seek to litigate the legality of policies such as the newly-adopted “open enrollment” plan, which were not in existence in 1951 or 1955.
We observe initially that it is impossible for defendant to claim prejudice from the injection of new issues into this action when defendant’s announced position is that applicants are free to pursue each and every one of those

claims in a separate action.
[27] Further, we note that in light of the wording of the October 28, 1955 order of the trial court and the fact that no order of compliance has ever been issued, this action, although dormant, has been technically open for the past 24 years. When, as here, a court retains jurisdiction over a school desegregation case in order to enforce its orders, changes in the law must be applied as they occur. United States v. Board of Ed. of Valdosta, Ga., 576 F.2d 37, 38 (5th Cir. 1978); United States v. South Park Independent School Dist., 566 F.2d 1221, 1225 (5th Cir. 1978). Had the case been actively supervised by the Court since 1955, all of these supposedly new issues would have been matters for the Court’s scrutiny in a determination of whether the direct mandate of Brown II had been met.
[28] [29] As we noted earlier, the Supreme Court held in Keyes that where a plaintiff shows purposeful segregation in a meaningful portion of a school district, the burden shifts to the school board to prove that segregation of other schools in the district was not purposeful. This shifting of the burden of proof is based upon three presumptions: (1) segregation in one area is presumed to have a reciprocal effect in contiguous zones; (2) segregation of a particular school is presumed to have a “magnet” effect on the racial composition of the surrounding residential neighborhood; and (3) intent to segregate part of a school system is probative of intent to segregate other parts of the same system. Keyes v. School District No. 1, Denver Colo., supra, 413 U.S. at 201-207, 93 S.Ct. 2686; See Kanner, From Denver to Dayton: The Development of a Theory of Equal Protection Remedies, 72 NW.U.L.Rev. 382, 386-387 (1977).

Topeka intentionally segregated elementary schools in 1951. Elementary schools constitute a meaningful portion of the school district.11 The Keyes presumptions, in light of Topeka’s use of a “feeder” school system, provide a basis for finding that segregation in junior high and high schools, if any, is purposeful. Thus, continued supervision of the Topeka schools under the decree in Brown II would naturally have led the Court over the years to turn its attention to the possibility of segregation in the junior and senior high schools, and now to the middle schools which are being adopted in Topeka.

11

Normally, the Keyes presumptions are applied in a

geographic context. We believe they apply just as well

in determining whether purposeful segregation of

elementary schools affects the racial composition of

junior and senior high schools.

This fact was recognized in the Weinberger case by the defendant which argued that the School system was under court supervision in opposition to the government’s
13

Brown v. Board of Ed. of Topeka, Shawnee County, Kansas, 84 F.R.D. 383 (1979)

position that an HEW investigation of the entire system was not barred because this case, as originally filed, involved only elementary schools.
Regarding equality of facilities, we find this is a factor which the Court must examine in determining whether the mandate of Brown II has been met, whether or not that examination occurs within or without the context of this case. As the Supreme Court noted in Columbus Board of Education v. Penick, supra:
In determining whether a dual school system has been disestablished, Swann (V. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554) also mandates that matters aside from student assignments must be considered.
*402 “(W)here it is possible to identify a ‘white school’ or a ‘Negro school’ simply by reference to the racial composition of teachers and staff, the quality of school buildings and equipment, or the organization of sports activities, a Prima facie case of violation of substantive constitutional rights under the Equal Protection Clause is shown.” 402 U.S., at 18, 91 S.Ct., at 1277.
We do not think defendant can realistically contend that because the trial court found equality of facilities in 1951, the issue would have been closed to review by the court following the Brown II remand.12 More pertinently, defendant cannot claim the 1951 finding would be a basis for Res judicata or even collateral estoppel were a separate action filed by applicants now. See Note, Subsequent Developments in the Law and the Applications of Collateral Estoppel in School Desegregation Cases, 7 Toledo L.Rev. 683 (1976).

12

Surely defendant does not contend that after receiving

the favorable ruling on equality of separate schools in

1951 it could have avoided court review under Brown

II while engaging in “backsliding” by neglecting

facilities in schools attended predominantly by minority

students.

Kelley v. Metropolitan Bd. of Ed. of Nashville, supra, 463 F.2d at 745-746. Thus, it is a court’s obligation to monitor actions taken after rendition of judgment which may increase segregation in the school system. See Davis v. East Baton Rouge Parish School Board, 570 F.2d 1260, 1263 (5th Cir. 1978), Cert. denied 439 U.S. 1114, 99 S.Ct. 1016, 59 L.Ed.2d 72 (1979); Steele v. Board of Public Instruction of Leon County, 371 F.2d 395, 397 (5th Cir. 1967).
In summary, had the Court’s retention of jurisdiction remained active or were applicants to file a new action, all the matters which lead the defendant to claim prejudice would have or would soon come within the Court’s scrutiny. Therefore, we find that no substantial prejudice would accrue to defendant were applicants allowed to press their claims as intervenors in this action rather than as plaintiffs in a separate action. We turn now to examination of the second matter of concern in postjudgment intervention cases interference with the orderly processes of the Court.
(b) Interference with the orderly processes of the Court. In determining whether post-judgment intervention would substantially disrupt the orderly process of the Court, we think it important to recall once again the wording of the October 28, 1955 order of the three-judge court:
Jurisdiction of the cause for the purpose of entering the final decree is retained until such time as the Court feels there has been full compliance with the mandate of the Supreme Court. (139 F.Supp. at 470)
This retention of jurisdiction, it should further be remembered, was explicitly ordered by the Supreme Court in Brown II when it stated: “(d)uring this period of transition, the courts will retain jurisdiction of these cases.”

[30] In looking at the issue of prejudice, we turn to defendant’s final point which is that applicants’ attempt to challenge present plans and policies of the board, such as the open enrollment policy and the long range facilities plan, would unduly prejudice defendant. This claim is answered by the fact that had the Court’s retention of jurisdiction since 1955 been an active one, these matters would have come before the Court’s direct scrutiny because a court which has retained jurisdiction to enforce a desegregation order must take into account changed circumstances. Mapp v. Board of Education of Chattanooga, 477 F.2d 851, 852 (6th Cir.), Cert. denied 414 U.S. 1022, 94 S.Ct. 445, 38 L.Ed.2d 313 (1973);

The retention of jurisdiction is not an unusual procedure. In 46 Am.Jur.2d Judgments s 230, p. 463 (1969) it is stated that parties to an action “are regarded as still in court after the rendition of a judgment, for the purpose of giving effect thereto.” And in 10 C. Wright & A. Miller, Supra at s 2651, p. 14 it is noted that a “court may enter a final and appealable judgment and still retain jurisdiction over the action so as to make sure its order is applied correctly.”
*403 The reasons why retention of jurisdiction may be required in desegregation cases are not difficult to fathom:
Prophylactic relief is particularly important in
14

Brown v. Board of Ed. of Topeka, Shawnee County, Kansas, 84 F.R.D. 383 (1979)

desegregation cases, in which resistance and evasion have proven all too common, often delaying any meaningful relief until years after the court’s finding of a constitutional violation. The advent of desegregation has opened new opportunities for discrimination: segregatory tracking and other discrimination within a school does not become possible until both black and white students are attending. Courts should learn from these past unhappy experiences and avoid their reiteration.
. . . the court itself should retain jurisdiction and adjudicate claims of new or continuing discrimination. (Leubsdorf, Completing the Desegregation Remedy, 57 B.U.L.Rev. 39, 55-56 (1977))
[31] For these reasons, the Supreme Court continues to emphasize the need for retention of jurisdiction by district courts in desegregation cases. Swann v. CharlotteMecklenburg Board of Education, 402 U.S. 1, 21, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Green v. County School Board, 391 U.S. 430, 439, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). Jurisdiction should be retained until the court can determine that there has been full compliance with the Constitution, and until such a finding is made the case remains “active” under the court’s jurisdiction. U. S. v. South Park Independent School District, supra, 566 F.2d at 1225.13

13

There are no established criteria now in existence to

guide a district court as to precisely when it should

relinquish its retained jurisdiction in a school

desegregation case. However, some helpful suggestions

are contained in Comment, Retention of Jurisdiction in

Desegregation Cases: A Causal and Attitudinal

Analysis, 52 So.Cal.L.Rev. 195, 228-230 (1978). See

also Bradley v. Milliken, 476 F.Supp. 257

(E.D.Mich.1979); Martin v. Charlotte-Mecklenburg Bd.

of Ed., 475 F.Supp. 1318 (W.D.N.C.1979).

Thus, it has been stated that “(a)lthough in other litigation the court’s decision virtually marks the end of the case, in a school desegregation action it is scarcely the beginning.” Leubsdorf, Supra, 57 B.U.L.Rev. at 64. As the Fifth Circuit recently recognized:
. . . the district court has a continuing responsibility to appraise the system in the light of actual conditions and experience and make required changes to assure the maintenance of a unitary system. Lee v. Macon County Board of Education, 584 F.2d 78 (5th Cir. 1978) makes clear that in the absence of a final judgment or dismissal of the case subject matter

jurisdiction is retained . . . (Pate v. Dade County School Board, 588 F.2d 501, 504 (5th Cir. 1979)).

See also Lee v. Macon County Bd. of Ed., 584 F.2d 78, 82 (5th Cir. 1978); Pickens v. Okolona Municipal Separate Sch. Dist., 594 F.2d 433, 436 (5th Cir. 1979).
In this case we have no final order, no order of dismissal, and no finding of compliance with the unitary school concept. Thus, this case has never been officially closed. It is true that the action has remained open an exceptionally long time, but such a circumstance is not unknown in school desegregation litigation.14 Given this state of affairs, the proper method of presenting a claim such as applicants assert, it appears, is through intervention in this action. A strong line of Fifth Circuit cases15 supports this intervention procedure.

14

In 1978, the Fifth Circuit’s opinion in Davis v. East

Baton Rouge Parish Sch. Bd., supra, 570 F.2d at 1260,

noted that the suit had been instituted some 22 years

earlier in 1956. In Davis v. Bd. of School Com’rs of

Mobile County, supra, 517 F.2d at 1046, it is indicated

that the action had been in litigation for some 12 years,

since 1963. The Sixth Circuit noted in Kelley v.

Metropolitan County Bd. of Ed. of Nashville, supra,

463 F.2d at 734 that the action had been through “17

years of continuous litigation.”

15

A survey of the case law indicates to this Court that the

Fifth Circuit is the single court most experienced in

dealing with the problems attendant to attempts to carry

out desegregation orders. That experience is one of the

reasons we find this line of cases persuasive.

In Hines v. Rapides Parish School Board, 479 F.2d 762 (5th Cir. 1973), the district *404 court dismissed a class action brought by parents who alleged that a unitary school system envisioned by the court’s desegregation order in a previous case had not been achieved. The Fifth Circuit agreed that the proper course of action was dismissal with leave to intervene in the case that had been reduced to judgment:
. . . we feel that the proper course for parental groups seeking to question current deficiencies in the implementation of desegregation orders is for the group to petition the district court to allow it to intervene in the prior action. The petition for intervention would bring to the attention of the district court the precise issues which the new group sought to represent and the ways in which the goal of a
15

Brown v. Board of Ed. of Topeka, Shawnee County, Kansas, 84 F.R.D. 383 (1979)

unitary system had allegedly been frustrated. The district court could then determine whether these matters had been previously raised and resolved and/or whether the issues sought to be presented by the new group were currently known to the court and parties in the initial suit. If the court determined that the issues these new plaintiffs sought to present had been previously determined or if it found that the parties in the original action were aware of these issues and completely competent to represent the interests of the new group, it could deny intervention. If the court felt that the new group had a significant claim which it could best represent, intervention would be allowed. (479 F.2d at 765)
In Spangler v. Pasadena City Board of Ed., 552 F.2d 1326, 1328-1329 (9th Cir. 1977), the Ninth Circuit adopted the view that the proper method of challenging a school board’s compliance with a desegregation order is through intervention into the pending case rather than the filing of a new action. See also Pate v. Dade County School Bd., supra, 588 F.2d at 503-504; Davis v. East Baton Rouge Parish School Bd., supra, 570 F.2d at 1260; Davis v. Bd. of School Com’rs of Mobile County, 517 F.2d 1044, 1046-1047, 1049 (5th Cir. 1975) Cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976); Calhoun v. Cook, 487 F.2d 680, 682 (5th Cir. 1973); Lee v. Macon County Bd. of Ed., 482 F.2d 1253, 1254 (5th Cir. 1973); Givhan v. Bd. of Ed. of Western Line Consol. Sch. Dist., 363 F.Supp. 714, 716 (N.D.Miss.1973); Strange v. Bd. of Ed. of Greenville, 70 F.R.D. 465, 466 (N.D.Miss.1975).
It is precisely this line of cases that defendant relied upon in moving to dismiss the Johnson v. Whittier case. As pointed out earlier in this opinion, in both Johnson v. Whittier and U.S.D. # 501 v. Weinberger, defendant contended that this action was open and available for the presentation of all claims that the mandates of Brown I and Brown II were not being followed. As also pointed out earlier, Judge Templar accepted, at least partially, defendant’s position in both those cases. See Johnson v. Whittier, T-5430 (D.Kan., 10/9/75, unpublished); and U.S.D. # 501 v. Weinberger, No. 74-160-C5 (D.Kan., 3/23/74, unpublished). We read both these opinions as strongly implying that the proper course of action for a party seeking to present desegregation claims is intervention of the very type now proposed by applicants. We call particular attention to the following passages from the Weinberger opinion:

Under the circumstances, this Court is bound to hold that indeed a judgment was rendered (in Brown v. Board of Education, supra, 139 F.Supp. at 470) and that it remains in full force and effect. The Court must further determine that the proviso in 42 U.S.C. 2000d-5 applies here and that the Court has retained jurisdiction authorizing it to make a further determination as to whether there has been full compliance with the mandate of the Supreme Court. This Court has always been open and available to any party having an interest to demonstrate that the mandate of the Supreme Court has or has not been fully complied with. Until now, no party has submitted any facts or evidence one way or the other.
This Court invites and requests all defendants to present and submit to this *405 Court any facts or evidence they have which should be considered in now determining whether the mandate of the Supreme Court and all other obligations and requirements of law have been complied with. This Court is open and available to hear any charges or claims that legal requirements have not been met by the School District as it relates to racial discrimination condemned in Brown v. School Board.
[32] It appears that intervention by applicants would not disrupt the orderly processes of the Court. In fact, the case law is strong that intervention of this type is precisely the proper manner in which to assert a claim of the type applicants seek to present. The general reasons for holding post-judgment intervention in disfavor are clearly inapplicable in a school desegregation situation where the proposed intervenors seek to encourage compliance with the Supreme Court’s rulings.
[33] [34] [35] We determine that applicants may intervene pursuant to F.R.Civ.P. 24(a)(2).16

16

Even if applicants were not entitled to intervene of

right, we would hold, in our discretion, that they should

be allowed permissive intervention under Rule

24(b)(2). Permissive intervention is discretionary with

the Court. Shump v. Balka, 574 F.2d 1341, 1345 (10th

Cir. 1978); Montgomery v. Rumsfeld, 572 F.2d 250,

255 (9th Cir. 1978). It does not require that the

intervenor’s claim involve facts identical to those being

litigated, but can be supported by a common question

of law, which is clearly present here. Swift v. Toia, 450

F.Supp. 983, 990 (S.D.N.Y.1978) Aff’d 598 F.2d 312

(2d Cir. 1979); Davis v. Smith, 431 F.Supp. 1206, 1209

(S.D.N.Y.1977). Because defendant cannot be

prejudiced by the intervention in light of the applicants’

conceded right to assert their claims in another action,

we find strong grounds for granting permissive

intervention.

16

Brown v. Board of Ed. of Topeka, Shawnee County, Kansas, 84 F.R.D. 383 (1979)

V. CONCLUSION
In concluding this opinion, we emphasize once again that the merits of applicants’ claims are not presented for decision at this time. This order is addressed to the purely procedural question of whether applicants should be allowed to intervene in this action or should be required to initiate a separate action. For all the reasons explained herein, the Court has determined to exercise its discretion in favor of granting the motion to intervene. The judges of this court and the defendant have invited intervention of this type. In the usual case, such intervention is clearly the proper method for asserting a claim that a school board under court order to desegregate is not complying with the law as interpreted by the Supreme Court. It is true that granting intervention in a case which has lain dormant for 24 years is an extraordinary measure. However, we do not believe it can be gainsaid that this is an extraordinary case presenting extraordinary circumstances. After weighing all of those circumstances, the Court concludes the motion to intervene should be sustained.
The Court now refers this action to Magistrate Crow so

that pretrial proceedings, including discovery, may be initiated immediately and prosecuted vigorously. We stand prepared to make whatever rulings are necessary to place this case in a posture for early trial. If we find that U.S.D. # 501 is in full compliance with all constitutional requirements, we intend to enter an order of compliance and close the case so that questions such as we have just resolved are not presented to another judge 24 years from now. If we find that U.S.D. # 501 is not in full compliance with all constitutional requirements, we intend to enter and enforce the orders necessary to obtain such compliance and then close the case.
We commend the parties for the fine presentation of the pending motion. We urge the parties to cooperate in matters of discovery so that this case can be ready for trial in the near future.
IT IS THEREFORE ORDERED that the motion to intervene as named plaintiffs be, and is hereby, granted.
	
  

17

 </s> Unified School Dist. No. 501, Shawnee County, Kan. v. Smith..., 509 U.S. 903 (1993)

113 S.Ct. 2994 Supreme Court of the United States
UNIFIED SCHOOL DISTRICT NO. 501, SHAWNEE COUNTY, KANSAS, petitioner,
v. Charles SMITH and Kimberly Smith, minor children, by their mother and next friend Linda
Brown SMITH, et al.
No. 92–1568. | June 21, 1993.
Former decision, Bd. of Educ. of Topeka, Shawnee Cty., Kan. v. Brown, 112 S.Ct. 1657.
Opinion

Case below, 671 F.Supp. 1290; 892 F.2d 851; 978 F.2d 585.
Petition for writ of certiorari to the United States Court of Appeals for the Tenth Circuit.
Denied.
Parallel Citations 113 S.Ct. 2994 (Mem), 125 L.Ed.2d 688, 61 USLW 3851, 61 USLW 3849, 61 USLW 3751
	
  

1

 </s> Brown v. Board of Ed. of Topeka, Shawnee County, Kan., 347 U.S. 483 (1954)

74 S.Ct. 686 Supreme Court of the United States
BROWN et al. v.
BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KAN., et al. BRIGGS et al. v. ELLIOTT et al. DAVIS et al. v.
COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, VA., et al. GEBHART et al. v. BELTON et al.
Nos. 1, 2, 4, 10. | Reargued Dec. 7, 8, 9, 1953. | Decided May 17, 1954.
Class actions originating in the four states of Kansas, South Carolina, Virginia, and Delaware, by which minor Negro plaintiffs sought to obtain admission to public schools on a nonsegregated basis. On direct appeals by plaintiffs from adverse decisions in the United States District Courts, District of Kansas, 98 F.Supp. 797, Eastern District of South Carolina, 103 F.Supp. 920, and Eastern District of Virginia, 103 F.Supp. 337, and on grant of certiorari after decision favorable to plaintiffs in the Supreme Court of Delaware, 91 A.2d 137, the United States Supreme Court, Mr. Chief Justice Warren, held that segregation of children in public schools solely on the basis of race, even though the physical facilities and other tangible factors may be equal, deprives the children of the minority group of equal educational opportunities, in contravention of the Equal Protection Clause of the Fourteenth Amendment.
Cases ordered restored to docket for further argument regarding formulation of decrees.
Attorneys and Law Firms
**686 No. 1:
Mr. *484 Robert L. Carter, New York City, for appellants Brown and others.
**687 Mr. Paul E. Wilson, Topeka, Kan., for appellees Board of Education of Topeka and others.
Nos. 2, 4:
Messrs. Spottswood Robinson III, Thurgood Marshall,

New York City, for appellants Briggs and Davis and others.
Messrs. John W. Davis, *485 T. Justin Moore, J. Lindsay Almond, Jr., Richmond, Va., for appellees Elliott and County School Board of Prince Edward County and others.
Asst. Atty. Gen. J. Lee Rankin for United States amicus curiae by special leave of Court.
No. 10:
Mr. H. Albert Young, Wilmington, Del., for petitioners Gebhart et al.
Mr. Jack Greenberg, Thurgood Marshall, New York City, for respondents Belton et al.
Opinion
*486 Mr. Chief Justice WARREN delivered the opinion of the Court.

These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion.1

1

In the Kansas case, Brown v. Board of Education, the

plaintiffs are Negro children of elementary school age

residing in Topeka. They brought this action in the

United States District Court for the District of Kansas

to enjoin enforcement of a Kansas statute which

permits, but does not require, cities of more than 15,000

population to maintain separate school facilities for

Negro and white students. Kan.Gen.Stat.1949, s

72—1724. Pursuant to that authority, the Topeka Board

of Education elected to establish segregated elementary

schools. Other public schools in the community,

however, are operated on a nonsegregated basis. The

three-judge District Court, convened under 28 U.S.C. ss

2281 and 2284, 28 U.S.C.A. ss 2281, 2284, found that

segregation in public education has a detrimental effect

upon Negro children, but denied relief on the ground

that the Negro and white schools were substantially

equal with respect to buildings, transportation,

curricula, and educational qualifications of teachers. 98

F.Supp. 797. The case is here on direct appeal under 28

U.S.C. s 1253, 28 U.S.C.A. s 1253.

In the South Carolina case, Briggs v. Elliott, the

plaintiffs are Negro children of both elementary and

high school age residing in Clarendon County. They

brought this action in the United States District Court

for the Eastern District of South Carolina to enjoin

enforcement of provisions in the state constitution and

statutory code which require the segregation of Negroes

and whites in public schools. S.C.Const. Art. XI, s 7;

S.C.Code 1942, s 5377. The three-judge District Court,

1

Brown v. Board of Ed. of Topeka, Shawnee County, Kan., 347 U.S. 483 (1954)

convened under 28 U.S.C. ss 2281 and 2284, 28 U.S.C.A. ss 2281, 2284, denied the requested relief. The court found that the Negro schools were inferior to the white schools and ordered the defendants to begin immediately to equalize the facilities. But the court sustained the validity of the contested provisions and denied the plaintiffs admission to the white schools during the equalization program. 98 F.Supp. 529. This Court vacated the District Court’s judgment and remanded the case for the purpose of obtaining the court’s views on a report filed by the defendants concerning the progress made in the equalization program. 342 U.S. 350, 72 S.Ct. 327, 96 L.Ed. 392. On remand, the District Court found that substantial equality had been achieved except for buildings and that the defendants were proceeding to rectify this inequality as well. 103 F.Supp. 920. The case is again here on direct appeal under 28 U.S.C. s 1253, 28 U.S.C.A. s 1253. In the Virginia case, Davis v. County School Board, the plaintiffs are Negro children of high school age residing in Prince Edward County. They brought this action in the United States District Court for the Eastern District of Virginia to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Va.Const. s 140; Va.Code 1950, s 22—221. The three-judge District Court, convened under 28 U.S.C. ss 2281 and 2284, 28 U.S.C.A. ss 2281, 2284, denied the requested relief. The court found the Negro school inferior in physical plant, curricula, and transportation, and ordered the defendants forthwith to provide substantially equal curricula and transportation and to ‘proceed with all reasonable diligence and dispatch to remove’ the inequality in physical plant. But, as in the South Carolina case, the court sustained the validity of the contested provisions and denied the plaintiffs admission to the white schools during the equalization program. 103 F.Supp. 337. The case is here on direct appeal under 28 U.S.C. s 1253, 28 U.S.C.A. s 1253. In the Delaware case, Gebhart v. Belton, the plaintiffs are Negro children of both elementary and high school age residing in New Castle County. They brought this action in the Delaware Court of Chancery to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Del.Const. Art. X, s 2; Del.Rev.Code, 1935, s 2631, 14 Del.C. s 141. The Chancellor gave judgment for the plaintiffs and ordered their immediate admission to schools previously attended only by white children, on the ground that the Negro schools were inferior with respect to teacher training, pupil-teacher ratio, extracurricular activities, physical plant, and time and distance involved in travel. Del.Ch., 87 A.2d 862. The Chancellor also found that segregation itself results in an inferior education for Negro children (see note 10, infra), but did not rest his decision on that ground. 87 A.2d at page 865. The Chancellor’s decree was affirmed by the Supreme Court of Delaware, which intimated, however, that the defendants might be able to obtain a modification of the decree after equalization of the Negro and white schools had been accomplished. 91 A.2d 137, 152. The

defendants, contending only that the Delaware courts had erred in ordering the immediate admission of the Negro plaintiffs to the white schools, applied to this Court for certiorari. The writ was granted, 344 U.S. 891, 73 S.Ct. 213, 97 L.Ed. 689. The plaintiffs, who were successful below, did not submit a cross-petition.

**688 *487 In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, *488 they have been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called ‘separate but equal’ doctrine announced by this Court in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256. Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools. The plaintiffs contend that segregated public schools are not ‘equal’ and cannot be made ‘equal,’ and that hence they are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the Court took jurisdiction.2 Argument was heard in the 1952 Term, and reargument was heard this Term on certain questions propounded by the Court.3

2

344 U.S. 1, 73 S.Ct. 1, 97 L.Ed. 3, Id., 344 U.S. 141, 73

S.Ct. 124, 97 L.Ed. 152, Gebhart v. Belton, 344 U.S.

891, 73 S.Ct. 213, 97 L.Ed. 689.

3

345 U.S. 972, 73 S.Ct. 1118, 97 L.Ed. 1388. The

Attorney General of the United States participated both

Terms as amicus curiae.

*489 Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it **689 is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most
2

Brown v. Board of Ed. of Topeka, Shawnee County, Kan., 347 U.S. 483 (1954)

avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among ‘all persons born or naturalized in the United States.’ Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.

An additional reason for the inconclusive nature of the Amendment’s history, with respect to segregated schools, is the status of public education at that time.4 In the South, the movement toward free common schools, supported *490 by general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world. It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates. Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states; and compulsory school attendance was virtually unknown. As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education.

4

For a general study of the development of public

education prior to the Amendment, see Butts and

Cremin, A History of Education in American Culture

(1953), Pts. I, II: Cubberley, Public Education in the

United States (1934 ed.), cc. II—XII. School practices

current at the time of the adoption of the Fourteenth

Amendment are described in Butts and Cremin, supra,

at 269—275; Cubberley, supra, at 288—339,

408—431; Knight, Public Education in the South

(1922), cc. VIII, IX. See also H. Ex. Doc. No. 315, 41st

Cong., 2d Sess. (1871). Although the demand for free

public schools followed substantially the same pattern

in both the North and the South, the development in the

South did not begin to gain momentum until about

1850, some twenty years after that in the North. The

reasons for the somewhat slower development in the

South (e.g., the rural character of the South and the

different regional attitudes toward state assistance) are

well explained in Cubberley, supra, at 408—423. In the

country as a whole, but particularly in the South, the

War virtually stopped all progress in public education.

Id., at 427—428. The low status of Negro education in

all sections of the country, both before and immediately

after the War, is described in Beale, A History of

Freedom of Teaching in American Schools (1941), 112—132, 175—195. Compulsory school attendance laws were not generally adopted until after the ratification of the Fourteenth Amendment, and it was not until 1918 that such laws were in force in all the states. Cubberley, supra, at 563—565.

In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race.5 The doctrine of *491 “separate but **690 equal” did not make its appearance in this court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation.6 American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the ‘separate but equal’ doctrine in the field of public education.7 In Cumming v. Board of Education of Richmond County, 175 U.S. 528, 20 S.Ct. 197, 44 L.Ed. 262, and Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 72 L.Ed. 172, the validity of the doctrine itself was not challenged.8 In more recent cases, all on the graduate school *492 level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifications. State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208; Sipuel v. Board of Regents of University of Oklahoma, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247; Sweatt v. Painter, 339 U.S. 629, 70 s.Ct. 848, 94 L.Ed. 1114; McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149. In none of these cases was it necessary to re-examine the doctrine to grant relief to the Negro plaintiff. And in Sweatt v. Painter, supra, the Court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education.

5

In re Slaughter-House Cases, 1873, 16 Wall. 36,

67—72, 21 L.Ed. 394; Strauder v. West Virginia, 1880,

100 U.S. 303, 307—308, 25 L.Ed. 664.

’It ordains that no State shall deprive any person of life,

liberty, or property, without due process of law, or deny

to any person within its jurisdiction the equal protection

of the laws. What is this but declaring that the law in

the States shall be the same for the black as for the

white; that all persons, whether colored or white, shall

stand equal before the laws of the States, and, in regard

to the colored race, for whose protection the

amendment was primarily designed, that no

discrimination shall be made against them by law

because of their color? The words of the amendment, it

is true, are prohibitory, but they contain a necessary

implication of a positive immunity, or right, most

valuable to the colored race,—the right to exemption

from unfriendly legislation against them distinctively as

colored,—exemption from legal discriminations,

implying inferiority in civil society, lessening the

security of their enjoyment of the rights which others

3

Brown v. Board of Ed. of Topeka, Shawnee County, Kan., 347 U.S. 483 (1954)

enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.’ See also State of Virginia v. Rives, 1879, 100 U.S. 313, 318, 25 L.Ed. 667; Ex parte Virginia, 1879, 100 U.S. 339, 344—345, 25 L.Ed. 676.

6

The doctrine apparently originated in Roberts v. City of

Boston, 1850, 5 Cush. 198, 59 Mass. 198, 206,

upholding school segregation against attack as being

violative of a state constitutional guarantee of equality.

Segregation in Boston public schools was eliminated in

1855. Mass. Acts 1855, c. 256. But elsewhere in the

North segregation in public education has persisted in

some communities until recent years. It is apparent that

such segregation has long been a nationwide problem,

not merely one of sectional concern.

7

See also Berea College v. Kentucky, 1908, 211 U.S. 45,

29 S.Ct. 33, 53 L.Ed. 81.

8

In the Cumming case, Negro taxpayers sought an

injunction requiring the defendant school board to

discontinue the operation of a high school for white

children until the board resumed operation of a high

school for Negro children. Similarly, in the Gong Lum

case, the plaintiff, a child of Chinese descent,

contended only that state authorities had misapplied the

doctrine by classifying him with Negro children and

requiring him to attend a Negro school.

In the instant cases, that question is directly presented. Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other ‘tangible’ factors.9 Our decision, therefore, cannot turn on merely a comparison of these tangible factors **691 in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education.

9

In the Kansas case, the court below found substantial

equality as to all such factors. 98 F.Supp. 797, 798. In

the South Carolina case, the court below found that the

defendants were proceeding ‘promptly and in good

faith to comply with the court’s decree.’ 103 F.Supp.

920, 921. In the Virginia case, the court below noted

that the equalization program was already ‘afoot and

progressing,’ 103 F.Supp. 337, 341; since then, we

have been advised, in the Virginia Attorney General’s

brief on reargument, that the program has now been

completed. In the Delaware case, the court below

similarly noted that the state’s equalization program

was well under way. 91 A.2d 137, 139.

[1] In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout *493 the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.
[2] Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.
[3] We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.
In Sweatt v. Painter, supra (339 U.S. 629, 70 S.Ct. 850), in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on ‘those qualities which are incapable of objective measurement but which make for greatness in a law school.’ In McLaurin v. Oklahoma State Regents, supra (339 U.S. 637, 70 S.Ct. 853), the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: ‘* * * his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.’ *494 Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro
4

Brown v. Board of Ed. of Topeka, Shawnee County, Kan., 347 U.S. 483 (1954)

plaintiffs: ’Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to (retard) the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial(ly) integrated school system.’10

10

A similar finding was made in the Delaware case: ‘I

conclude from the testimony that in our Delaware

society, State-imposed segregation in education itself

results in the Negro children, as a class, receiving

educational opportunities which are substantially

inferior to those available to white children otherwise

similarly situated.’ 87 A.2d 862, 865.

**692 Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.11 Any language *495 in Plessy v. Ferguson contrary to this finding is rejected.

11

K. B. Clark, Effect of Prejudice and Discrimination on

Personality Development (Midcentury White House

Conference on Children and Youth, 1950); Witmer and

Kotinsky, Personality in the Making (1952), c. VI;

Deutscher and Chein, The Psychological Effects of

Enforced Segregation: A Survey of Social Science

Opinion, 26 J.Psychol. 259 (1948); Chein, What are the

Psychological Effects of Segregation Under Conditions

of Equal Facilities?, 3 Int. J. Opinion and Attitude Res.

229 (1949); Brameld, Educational Costs, in

Discrimination and National Welfare (MacIver, ed.,

1949), 44—48; Frazier, The Negro in the United States

(1949), 674—681. And see generally Myrdal, An

American Dilemma (1944).

[4] We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.12

[5] Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question—the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument this Term.13 The Attorney General *496 of the United States is again invited to participate. The Attorneys General of the states requiring or permitting segregation in public education will also be permitted to appear as amici curiae upon request to do so by September 15, 1954, and submission of briefs by October 1, 1954.14

13

‘4. Assuming it is decided that segregation in public

schools violates the Fourteenth Amendment

’(a) would a decree necessarily follow providing that,

within the limits set by normal geographic school

districting, Negro children should forthwith be admitted

to schools of their choice, or

’(b) may this Court, in the exercise of its equity powers,

permit an effective gradual adjustment to be brought

about from existing segregated systems to a system not

based on color distinctions?

’5. On the assumption on which questions 4(a) and (b)

are based, and assuming further that this Court will

exercise its equity powers to the end described in

question 4(b),

’(a) should this Court formulate detailed decrees in

these cases;

’(b) if so, what specific issues should the decrees reach;

’(c) should this Court appoint a special master to hear

evidence with a view to recommending specific terms

for such decrees;

’(d) should this Court remand to the courts of first

instance with directions to frame decrees in these cases,

and if so what general directions should the decrees of

this Court include and what procedures should the

courts of first instance follow in arriving at the specific

terms of more detailed decrees?‘

14

See Rule 42, Revised Rules of this Court, effective July

1, 1954, 28 U.S.C.A.

12

See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693,

concerning the Due Process Clause of the Fifth

Amendment.

It is so ordered.
**693 Cases ordered restored to docket for further 5

Brown v. Board of Ed. of Topeka, Shawnee County, Kan., 347 U.S. 483 (1954)

argument on question of appropriate decrees. Parallel Citations

74 S.Ct. 686, 38 A.L.R.2d 1180, 98 L.Ed. 873, 53 O.O. 326
	
  

6

 </s> Brown v. Board of Educ. of Topeka, Kan., 349 U.S. 294 (1955)

75 S.Ct. 753 Supreme Court of the United States
Oliver BROWN, et al., Appellants, v.
BOARD OF EDUCATION OF TOPEKA, Shawnee County, KANSAS, et al.
Harry BRIGGS, Jr., et al., Appellants, v.
R. W. ELLIOTT, et al. Dorothy E. DAVIS, et al., Appellants,
v. COUNTY SCHOOL BOARD OF PRINCE
EDWARD COUNTY, VIRGINIA, et al. Spottswood Thomas BOLLING, et al., Petitioners,
v. C. Melvin SHARPE, et al. Francis B. GEBHART, et al., Petitioners,
v. Ethel Louise BELTON, et al.
Nos. 1 to 5. | Argued April 11, 12, 13 and 14, 1955. | Decided May 31, 1955.
Class actions by which minor plaintiffs sought to obtain admission to public schools on a nonsegregated basis. On direct appeals by plaintiffs from adverse decisions in United States District Courts, District of Kansas, 98 F.Supp. 797, Eastern District of South Carolina, 103 F.Supp. 920, and Eastern District of Virginia, 103 F.Supp. 337, on certiorari before judgment on appeal to the United States Court of Appeals for the District of Columbia from adverse decision in United States District Court for the District of Columbia, and on certiorari from decision favorable to plaintiffs in the Supreme Court of Delaware, 91 A.2d 137, the Supreme Court, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, and 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884, held that racial discrimination in public education was unconstitutional and restored cases to docket for further argument regarding formulation of decrees. On further argument, the Supreme Court, Mr. Chief Justice Warren, held that in proceedings to implement Supreme Court’s determination, inferior courts might consider problems related to administration, arising from physical condition of school plant, school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve system of determining admission to public schools on a nonracial basis, and revision of local laws and regulations, and might consider adequacy of any plans school authorities might propose to meet these problems and to effectuate a transition to racially nondiscriminatory school systems.
Judgments, except that in case No. 5, reversed and cases

remanded with directions; judgment in case No. 5 affirmed and case remanded with directions.
Attorneys and Law Firms
**754 *296 Mr. Robert L. Carter, New York City, for appellants in No. 1.
Mr. Harold R. Fatzer, Topeka, Kan., for appellees in No. 1.
Messrs. Thurgood Marshall, New York City, and Spottswood W. Robinson, III, Richmond, Va., for appellants in Nos. 2 and 3.
Messrs. S. E. Rogers, Summerton, S.C., and Robert McC. Figg, Jr., Charleston, S.C., for appellees in No. 2.
**755 Messrs. Archibald G. Robertson, Richmond, Va., and J. Lindsay Almond, Jr., Atty. Gen., for appellees in No. 3.
Messrs. George E. C. Hayes and James M. Nabrit, Jr., Washington, D.C., for petitioners in No. 4.
Mr. Milton D. Korman, Washington, D.C., for respondents in No. 4.
*297 Mr. Joseph Donald Craven, Wilmington, Del., for petitioners in No. 5.
Mr. Louis L. Redding, Wilmington, Del., for respondents in No. 5.
Messrs. Richard W. Ervin and Ralph E. Odum, Tallahassee, Fla., for State of Florida, I. Beverly Lake, Raleigh, N.C., for State of North Carolina, Thomas J. Gentry, Little Rock, Ark., for State of Arkansas, Mac Q. Williamson, Oklahoma, City, Okl., for State of Oklahoma, C. Ferdinand Sybert, Ellicott City, Md., for State of Maryland, John Ben Shepperd and Burnell Waldrep, Austin, Tex., for State of Texas, Sol. Gen. Simon E. Sobeloff, Washington, D.C., for the United States, amici curiae.
Opinion
*298 Mr. Chief Justice WARREN delivered the opinion of the Court.
[1] These cases were decided on May 17, 1954. The opinions of that date,1 declaring the fundamental principle that racial discrimination in public education is unconstitutional, are incorporated herein by reference. All provisions of federal, state, or local law requiring or permitting such discrimination must yield to this
1

Brown v. Board of Educ. of Topeka, Kan., 349 U.S. 294 (1955)

principle. There remains for consideration the manner in which relief is to be accorded.

1

347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, 347 U.S.

497, 74 S.Ct. 693, 98 L.Ed. 884.

Because these cases arose under different local conditions and their disposition will involve a variety of local problems, we requested further argument on the question of relief.2 In view of the nationwide importance of the decision, we invited the Attorney General of the United *299 States and the Attorneys General of all states requiring or permitting racial discrimination in public education to present their views on that question. The parties, the United States, and the States of Florida, North Carolina, Arkansas, Oklahoma, Maryland, and Texas filed briefs and participated in the oral argument.

2

Further argument was requested on the following

questions, 347 U.S. 483, 495—496, note 13, 74 S.Ct.

686, 692, 98 L.Ed. 873, previously propounded by the

Court:

’4. Assuming it is decided that segregation in public

schools violates the Fourteenth Amendment

’(a) would a decree necessarily follow providing that,

within the limits set by normal geographic school

districting, Negro children should forthwith be admitted

to schools of their choice, or

’(b) may this Court, in the exercise of its equity powers,

permit an effective gradual adjustment to be brought

about from existing segregated systems to a system not

based on color distinctions?

’5. On the assumption on which questions 4(a) and (b)

are based, and assuming further that this Court will

exercise its equity powers to the end described in

question 4(b),

’(a) should this Court formulate detailed decrees in

these cases;

’(b) if so, what specific issues should the decrees reach;

’(c) should this Court appoint a special master to hear

evidence with a view to recommending specific terms

for such decrees;

’(d) should this Court remand to the courts of first

instance with directions to frame decrees in these cases,

and if so what general directions should the decrees of

this Court include and what procedures should the

courts of first instance follow in arriving at the specific

terms of more detailed decrees?‘

These presentations were informative and helpful to the Court in its consideration of the complexities arising from the transition to a system of public education freed of racial discrimination. The presentations also demonstrated that substantial steps to eliminate racial discrimination in public schools have already **756 been taken, not only in some of the communities in which these cases arose, but in some of the states appearing as amici curiae, and in

other states as well. Substantial progress has been made in the District of Columbia and in the communities in Kansas and Delaware involved in this litigation. The defendants in the cases coming to us from South Carolina and Virginia are awaiting the decision of this Court concerning relief. [2] [3] Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts.3

3

The cases coming to us from Kansas, South Carolina,

and Virginia were originally heard by three-judge

District Courts convened under 28 U.S.C. ss 2281 and

2284, 28 U.S.C.A. ss 2281, 2284. These cases will

accordingly be remanded to those three-judge courts.

See Briggs v. Elliott, 342 U.S. 350, 72 S.Ct. 327, 96

L.Ed. 392.

*300 [4] [5] In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies4 and by a facility for adjusting and reconciling public and private needs.5 These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.

4

See Alexander v. Hillman, 296 U.S. 222, 239, 56 S.Ct.

204, 209, 80 L.Ed. 192.

5

See Hecht Co. v. Bowles, 321 U.S. 321, 329—330, 64

S.Ct. 587, 591, 592, 88 L.Ed. 754.

[6] [7] [8] [9] While giving weight to these public and private considerations, the courts will require that the defendants
2

Brown v. Board of Educ. of Topeka, Kan., 349 U.S. 294 (1955)

make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools *301 on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases.
**757 The judgments below, except that in the Delaware case, are accordingly reversed and the cases are remanded

to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases. The judgment in the Delaware case—ordering the immediate admission of the plaintiffs to schools previously attended only by white children—is affirmed on the basis of the principles stated in our May 17, 1954, opinion, but the case is remanded to the Supreme Court of Delaware for such further proceedings as that Court may deem necessary in light of this opinion.
It is so ordered.
Judgments, except that in case No. 5, reversed and cases remanded with directions; judgment in case No. 5 affirmed and case remanded with directions.
Parallel Citations
75 S.Ct. 753, 99 L.Ed. 1083, 71 Ohio Law Abs. 584, 57 O.O. 253
	
  

3

 </s> Board of Educ. of Topeka, Shawnee County, Kan. v. Brown, 503 U.S. 978 (1992)

112 S.Ct. 1657 Supreme Court of the United States
BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS, petitioner,
v. Oliver BROWN, et al.
No. 89-1681. | April 20, 1992
Case below, 671 F.Supp. 1290; 892 F.2d 851.
Opinion
On petition for writ of certiorari to the United States Court of Appeals for the Tenth Circuit. The petition for

writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Tenth Circuit for further consideration in light of Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992) and Board of Education of Oklahoma City Public Schools, Independent School District No. 89, Oklahoma County, Oklahoma v. Dowell, 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991).
Parallel Citations
112 S.Ct. 1657 (Mem), 118 L.Ed.2d 381, 60 USLW 3013, 60 USLW 3709, 60 USLW 3715, 73 Ed. Law Rep. 616
	
  

1


[CONTENT] the U.S. Supreme Court | 1954 | 1955 ||| American ||| Topeka | Kansas ||| the Supreme Court ||| February 28, 1951 | Topeka | Kansas | the U.S. District Court | Kansas ||| NAACP | Charles Bledsoe | 8 | the Civil Rights Act | 1870 ||| the Fourteenth Amendment |||  ||| two miles ||| three | 28 ||| March 22, 1951 ||| the State of Kansas ||| May 29, 1951 |||  ||| June 7, 1951 ||| four ||| June 15, 1951 | second | Topeka | first |||  ||| that summer ||| approximately ten days | August 3, 1951 | three |||  |||  ||| Supreme Court | Plessy | Ferguson | 163 | U.S. | 1896 | Supreme Court ||| Brown v. Board of Education | 96 ||| 797 | D. | 1951 | Walter August Huxman ||| the U.S. Supreme Court | under 28 | 1253 ||| the Supreme Court | Kansas | three | South Carolina | Virginia | Delaware ||| two ||| Kansas ||| Topeka ||| South Carolina | Virginia ||| Delaware |||  ||| Delaware | Supreme Court | two ||| May 17, 1954 | the United States | the U.S. Supreme Court | the Fourteenth Amendment ||| Brown v. Board of Education | 347 | U.S. | 483 | 1954 | Earl Warren ||| four | the Supreme Court ||| Court ||| Warren | Kansas |||  ||| Court | the United States ||| Court ||| years later | Supreme Court | Robert H. Jackson ||| William H. Rehnquist | Court | the early 1950's | Court | Constitution ||| Plessy | Ferguson ||| Jackson ||| The Supreme Court's | May 31, 1955 ||| Warren | Court |||  |||  |||  ||| Court ||| Delaware | four | Supreme Court ||| Brown v. Board of Education | 399 | U.S. | 294 | 1955 ||| Brown | Topeka | August 2, 1955 | Kansas ||| August 24, 1955 | three | October 28, 1955 ||| that school year |||  ||| that year | the Supreme Court's ||| at least one |||  ||| the Supreme Court | Green v. School Board of New Kent County | Swann w. Charlotte | Mecklenberg |||  ||| 1979 |||  ||| Topeka ||| Richard Dean Rogers ||| Brown v. Board of Education | 84 | D. Kan. 1979 ||| four | that decade | Topeka | at least two | Brown v. Board of Education | Constitution ||| 1 | 2 | 3 | 4 | 5 ||| Rogers ||| the Supreme Court's ||| Discovery | April 9, 1987 ||| Brown v. Board of Education | 671 | F. Supp ||| 1290 | D. | 1987 ||| Rogers | 1954 ||| Topeka | 1951 |||  |||  |||  |||  ||| Rogers | one ||| Title VI | the Civil Rights Act ||| Rogers | Kansas ||| Topeka |||  ||| ACLU | the U.S. Court of Appeals | the Tenth Circuit ||| 2 ||| Brown v. Board of Education | 892 | 10th Cir. 1989 ||| Stephanie Kulp Seymour ||| Seymour |||  ||| Title VI | Seymour ||| the U.S. Supreme Court ||| Brown v. Board of Education | 503 | U.S. | 978 | 1992 | the Tenth Circuit's | two | Supreme Court | Freeman | 503 | U.S. | 467 | 1992 | Oklahoma City | Dowell | 498 | U.S. | 1991 |||  ||| Seymour | 2 | Supreme Court ||| Brown v. Board of Education | 978 | 585 | 10th Cir. 1992 ||| The Supreme Court ||| December 3, 1993 | Rogers ||| the Tenth Circuit ||| Discovery |||  ||| New York | ACLU ||| Rogers |||  ||| 501 | 878 ||| 1430 | D. | 1995 ||| 1999 |||  |||  ||| Rogers ||| recent years | 15% |||  ||| Rogers | Constitution ||| July 27, 1999 ||| 501 | 56 | D. Kan. | 1999 [SUMMARY] This is the case in which the U.S. Supreme Court announced in 1954 that segregated schools were inherently unequal, and in 1955 required school districts to desegregate "with all deliberate speed."  It is the most famous civil rights case in American history.  But it also had a specific set of plaintiffs -- schoolchildren in Topeka, Kansas -- and a specific history in its own community.  This summary focuses on that history, rather than the broader setting and the Supreme Court jurisprudence.  

On February 28, 1951, a group of black parents and children residing in the Topeka, Kansas, school district filed, in the U.S. District Court for the District of Kansas, a complaint naming as defendants the district's school board and certain school administrators.  The plaintiffs were represented by local NAACP cooperating attorney Charles Bledsoe and sought class action status for their case, which they filed citing what was then 8 U.S.C. § 43, part of the Civil Rights Act of 1870.  Their complaint alleged that the defendants, acting pursuant to state statute, denied the plaintiff's equal protection rights under the Fourteenth Amendment by operating separate public schools for white and black children, denying black children the right to enroll in and attend the schools attended by similarly-situated white children.  The plaintiffs alleged that the defendants' conduct denied, solely on the basis of "race and color," to the child plaintiffs educational advantages, opportunities and facilities equal to those provided to white children, and that the black children forced by state law to attend racially-segregated schools "do not and cannot" enjoy the educational benefits afforded to whites.  The plaintiffs alleged that some black students had to travel two miles farther to attend an all-black school than if allowed to attend the nearest all-white school.  The plaintiffs sought declaratory and injunctive relief, as well as attorneys' fees, and asked that the court convene a three judge panel, then required by 28 U.S.C. § 2281, to consider the constitutionality of the state statute. 

On March 22, 1951, plaintiffs filed an amended complaint making the same basic allegations and seeking the same relief.  It named as an intervening defendant the State of Kansas.  The amended complaint was itself amended on May 29, 1951, when plaintiffs' counsel amended a paragraph to specify that the education opportunities provided by the defendants to the plaintiff children were inferior to those provided to white children in numerous respects, including "physical facilities, curricula, teaching, resources, student personnel services, access, and all other educational factors, tangible and intangible...."  Moreover, the amended paragraph alleged that, apart from all other factors, the racial segregation practiced by the defendants "in and of itself" constituted an inferiority in educational opportunity offered to blacks, when compared to that offered to whites.

The school board's June 7, 1951, answer denied the claimed violations of constitutional rights.  It also sought to correct or clarify certain claims made in the complaint, asserting that the operation of separate schools only occurred in the district's elementary-level facilities, that the city had but a single district with multiple attendance territories, that it provided free transportation for black children to any of the four black elementary schools operated for them in the district while providing no transportation for white elementary school students, and that, on average, the distances traveled to schools by black and by white children were the same.  The state's answer, filed on June 15, 1951, generally denied the plaintiffs' allegations, specifically denying that the state statute was unconstitutional (and added, as had the other defendants' answer,  that the plaintiffs' complaint had mis-cited  the state statute of which they complained, by citing one applicable to cities of the second class, whereas Topeka was a city of the first class).  The state also asserted that the complaint failed to state a claim upon which relief could be granted.  That claim must have been rejected in an unpublished ruling, for the case was tried that summer.

After a trial of approximately ten days, on August 3, 1951, the three-judge panel sitting as the district court issued its opinion upholding the state statute and denying the plaintiffs' claims for relief.  The court briefly reviewed the issues of facilities, curricula, instruction, and travel, finding that comparable educational facilities and services were provided to students of both races.  It concluded that in the maintenance and operation of the separate schools "there is no willful, intentional or material discrimination."  Recognizing that prior Supreme Court precedent (including Plessy v. Ferguson, 163 U.S. 537 (1896)) allowing segregation in state-provided services seemed, to some degree, undercut by recent Supreme Court decisions, the district court adjudged that the prior cases, not having been overruled, controlled.  Brown v. Board of Education, 96 F. Supp. 797 (D. Ks. 1951) (Circuit Judge Walter August Huxman).   The plaintiffs appealed directly to the U.S. Supreme Court, as then permitted under 28 U.S.C. § 1253.

At the Supreme Court, the Kansas case was heard along with three other cases (from South Carolina, Virginia, and Delaware) challenging segregation in public education.  These other cases, two of which had elementary and high school age plaintiffs and one with only high school age plaintiffs, all involved state constitutions and statutes that required segregation in public education.  In contrast, the Kansas statute permitted, but did not require, cities above a certain population to maintain racially-separate school facilities.  (Topeka's school board had elected to maintain segregated elementary schools.)  In the South Carolina and Virginia cases, the lower federal courts found the black students' schools to have been inferior and the states were directed to equalize the facilities and services;  however, the states' segregation laws were upheld and the plaintiffs were not provided access to the white students' schools during the mandated equalization programs.  In the Delaware case, a state trial court awarded the plaintiffs an order requiring their immediate admission to the white students' schools. The trial court cited the inferiority of the schools the state had provided to black students and accepted the view that segregation itself results in an inferior education.  Delaware's Supreme Court affirmed but intimated that, once equalization of the two sets of schools had been accomplished, the state might be able to obtain a modification of the decree.

On May 17, 1954, after twice having the parties and the United States, as amicus curiae, argue the case, the U.S. Supreme Court issued its unanimous opinion declaring that racially segregated schools were inherently unequal, and therefore deprived the plaintiffs of the equal protection of the laws guaranteed by the Fourteenth Amendment.  Brown v. Board of Education, 347 U.S. 483 (1954) (Earl Warren, Chief Justice).  In the four cases at issue, the lower courts had found the separate schools' "tangible" factors equal (or satisfactorily becoming so);  accordingly, the Supreme Court focused on the "effect" of segregation itself on public education.  In view of the importance of education as a state-provided function, the Court stated that once a state has undertaken to provide educational opportunity it must make the right available to all on equal terms.  Chief Justice Warren quoted the Kansas district court's observation that public school segregation has a detrimental effect which is greater when sanctioned by law, denoting black inferiority and affecting motivation to learn.  He found this observation amply supported by modern psychological authority, citing several recent studies and reports.  Recognizing the wide applicability of its decision and the variety of local conditions to which it must be applied, the Court requested the parties and the United States to again argue the case, specifically to address the formulation of remedial decrees.  In addition to restoring the case to the docket for further argument, the Court also invited amicus curiae briefs from those states requiring or permitting segregation in public education.

(In something of a sidelight to this historic decision, years later an internal memorandum became available which revealed the thoughts of a then-law clerk to Supreme Court Justice Robert H. Jackson about the school desegregation cases.  The law clerk, William H. Rehnquist, later became a member of the Court (and its Chief Justice) but, as a law clerk in the early 1950's, he wrote that the desegregation cases' plaintiffs were wrongly asking the Court to read its own sociological views and personal moral preferences into the Constitution.  In his view, Plessy v. Ferguson was right and should be re-affirmed.  As the unanimous decision reflects, Justice Jackson did not follow his law clerk's advice.)

The Supreme Court's next decision in the case occurred on May 31, 1955.  In another unanimous opinion, again written by Chief Justice Warren, the Court remanded the cases to the trial courts for the crafting of appropriate decrees.  The opinion observed that these courts were best suited to assess local conditions and the good faith efforts of local school officials to implement governing constitutional principles.  The lower courts were reminded to consider the plaintiffs' personal interests in admission to public schools "as soon as practicable" on a nondiscriminatory basis, as well as the public interest in eliminating obstacles to such relief in an "orderly and systematic" manner.  The courts were directed to require the defendants to make a "prompt and reasonable start toward full compliance" with the earlier ruling.  This imprecise timeframe for action was not appreciably honed by the Court's directive that the lower courts, on remand, should "take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases."  (The Delaware case, having been the sole affirmance of the four appealed cases, was remanded to that state's Supreme Court for proceedings it deemed necessary.)  Brown v. Board of Education, 399 U.S. 294 (1955).  

On remand in the Brown case, in Topeka, on August 2, 1955, the Kansas plaintiffs filed a motion in the district court for a hearing on the formulation of a decree.  The hearing occurred on August 24, 1955, followed by issuance of a per curiam opinion by the three judge court on October 28, 1955.  The court approved the plan the school board put in force for that school year.  The plan's central principle was that children would be required to attend school within the district of their residence, with rare exceptions, and that race or color would not be any part of any exception to the general rule.  Although the court viewed as insufficient one aspect of the plan, allowing (for that year only) kindergarten children to opt to attend schools inside or out of their residence district, the court decided that the plan sufficiently reflected the good faith of school authorities in attempting to adhere to the Supreme Court's rulings.  The court also noted that at least one all-black school would, because of residence demographics, remain all-black.  This result was acceptable, reasoned the court, because desegregation did not require intermingling but, instead, that children not be prevented from going to school together because of race or color.  (This conceptualization of the desegregation obligation was later disapproved by the Supreme Court in Green v. School Board of New Kent County and Swann w. Charlotte/Mecklenberg.)  The court retained jurisdiction over the case and regarded acceptance of the school board's plan as an interim measure.  

The docket is devoid of any subsequent activity of importance until 1979.  At that point, represented by private counsel, a group of black parents and schoolchildren filed a motion in the case to intervene as plaintiffs.  They also filed a motion asking the court to command compliance with the earlier ruling to desegregate Topeka's schools.  District Judge Richard Dean Rogers granted the motion to intervene.  Brown v. Board of Education, 84 F.R.D. 383 (D. Kan. 1979).  He noted that four separate cases had been filed during that decade seeking to eliminate alleged racial discrimination in Topeka's schools and that, in at least two of them, the state and the school board's successful positions had been that the plaintiffs in those cases should not be permitted to proceed and, instead, should file motions seeking relief in Brown v. Board of Education, since the court had expressly retained jurisdiction to enforce compliance with the Constitution.  The intervening plaintiffs alleged (1) the school board had created attendance zones that perpetuate racial discrimination, (2) schools with predominately black enrollment had facilities, equipment, curricula, and instruction substantially inferior to that provided in schools with predominately white enrollment, (3) racial disparity existed in school personnel assignments, (4) the school board had adopted an open enrollment policy perpetuating school segregation, and (5) the board adopted a long range facilities plan which also perpetuated school segregation.  Without resolving any of these claims, Judge Rogers made the procedural ruling that the movants could appropriately intervene as plaintiffs.  He found  it unpersuasive that passage of time had mooted the original plaintiffs' interest in the case, because the case was a class action (even though modern procedures for certifying a class action did not exist when the case had begun) and the intervenors had appropriate interests in seeking compliance with the Supreme Court's earlier orders.  

Discovery and motion proceedings followed, as did a trial, which resulted in the district court's order of April 9, 1987. Brown v. Board of Education, 671 F. Supp. 1290 (D. Kan. 1987).  Reviewing the case's history as well as other desegregation rulings, Judge Rogers observed that, in determining whether a unitary school system existed, he would assess whether characteristics of the dual system existing in 1954 either do not exist or, if they exist, whether they are not the result of past or present intentional segregative conduct of the defendants or their predecessors. He then reviewed the history of desegregation efforts in the Topeka schools, noting that some desegregation, at the high school level, preceded the 1951 filing of this case.  The trial evidence included statistics which, according to the plaintiffs, demonstrated a lack of racial balance in the district's schools, in the sense that many schools' racial mix did not reflect the racial mix of the district.  The judge, however, saw the statistics as a result of residential patterns, not as remnants of past discrimination nor of present intentionally discriminatory conduct.  He added that the plaintiffs had not presented sufficient evidence for him to find that the residential patterns were the product of discriminatory conduct.  Likewise, school transfer policies, attendance zone decisions, school space and site decisions, school closings and openings, school boundary locations, facilities quality, activities and curriculum, transportation, faculty and staff assignments, test scores, opportunities to take desegregative action, and other factors were reviewed and found racially neutral.  Judge Rogers stated that the existence of some schools having a statistical predominance of one race was not the product of overt or covert intentionally segregative conduct.  Thus, the new plaintiffs also could not prevail on their claim that the defendants violated Title VI of the Civil Rights Act of 1964, since that act prohibits only intentional discrimination in operation of schools receiving federal funds and the act's implementing regulations prohibiting racially discriminatory effects had not been shown to have been violated.  Judge Rogers also ruled that the Kansas governor was dismissed as a defendant and that no evidence established liability of the state's school board.  The public school system in Topeka was adjudged a unitary one.  The plaintiffs' claims for relief were denied and they were ordered to pay the defendants' costs.

With assistance from ACLU attorneys, plaintiffs appealed to the U.S. Court of Appeals for the Tenth Circuit.  In a lengthy opinion, the appellate court upheld, 2-1, limited aspects of the district court's ruling but reversed the lower court's main conclusions.  Brown v. Board of Education, 892 F.2d 851 (10th Cir. 1989) (Circuit Judge Stephanie Kulp Seymour).  In sum, Judge Seymour faulted the district court's placing the burden of proving intentional discrimination on the plaintiffs, rather than according plaintiffs the presumption that existing racial disparities in the school system were causally related to past discriminatory conduct.  Reviewing the evidence with the burden of proof properly assigned, the appellate court concluded that the defendants had failed in meeting their burden of proving that the effects of past intentional discrimination had dissipated.  The lower court's ruling on the alleged Title VI violation also was error, according to Judge Seymour, who affirmed the district court's dismissal of the state's governor from the case and the finding that the state's recently-created school board had no liability.  

The defendants sought review in the U.S. Supreme Court.  In a brief order, Brown v. Board of Education, 503 U.S. 978 (1992), that court granted certiorari, vacated the Tenth Circuit's judgment, and remanded the case for further proceedings in light of two recent Supreme Court decisions, Freeman v. Pitts, 503 U.S. 467 (1992), and Bd. of Educ. of Oklahoma City v. Dowell, 498 U.S. 237 (1991), each of which suggested that district courts should aim in school desegregation cases to relinquish jurisdiction when possible.  

On remand, the appellate court reinstated its prior opinion in full, again citing the local school board's failure of proof and its' inaction rather than taking sufficient affirmative steps in the area of student and faculty/staff assignments to eliminate the vestiges of past discrimination.  Judge Seymour, again writing for a 2-1 court, was of the view that the recent Supreme Court decisions changed nothing in the analysis.  Brown v. Board of Education, 978 F.2d 585 (10th Cir. 1992).  The Supreme Court declined review, so the case returned to the district court.

There, in a December 3, 1993, unpublished order, Judge Rogers stated that the issue before him was limited to the crafting of a remedial plan to eliminate the vestiges of de jure segregation in student and faculty/staff assignments.  In his view, other aspects of the school system, such as educational performance, disciplinary outcomes, or classroom assignments were not part of the direct mandate from the Tenth Circuit.  Discovery on remand was to be limited accordingly.  

Also addressed on remand were the plaintiffs' motions for recovery of their attorneys' fees and litigation costs.  The district court ruled that the fees would be calculated using local standards, rather than the higher rates prevailing in New York, where the ACLU attorneys were housed.  Judge Rogers also ruled that volunteer paralegals' time spent on the case would not result in reimbursement, nor would counsel's travel time or secretarial and word processing costs.  He decided, however, not to reduce the amount of recovery based on the fact that the plaintiffs were not fully successful.  Brown v. Unified School District No. 501, 878 F. Supp. 1430 (D. Kan. 1995).  

In 1999, the district court made its final ruling in the case.  The ruling resulted from the motion of the defendant for a declaration of unitary status and order of dismissal. The plaintiffs did not oppose the motion.  In ruling on the motion, Judge Rogers considered that the school board, after the most recent remand from the appellate court, had adopted and implemented a remedial plan with guidelines which prevented any school from being identified as a majority or minority school on the basis of the race of its faculty and staff.  Likewise, the plan addressed student assignments at individual elementary, middle, and high schools in a way that, in recent years, kept minority and majority student populations within 15% of the minority and majority student figures for the district at large.  The court also noted the defendant's on-going multi-cultural education programs for students, faculty, and staff, and an announced commitment to diversity and intolerance of discrimination.  Granting the motion for a declaration of unitary status for the school district, Judge Rogers ruled that the vestiges of past discrimination in the school district had been eliminated to the extent practicable; and defendant had demonstrated a good faith commitment to the law and the Constitution which presaged no future need for judicial intervention.  He dismissed the case on July 27, 1999.  Brown v. Unified School District No. 501, 56 F. Supp.2d 1212 (D. Kan. 1999).