For the fourth time this court is called upon to review the protracted proceedings
*245
of this action brought by plaintiffs
1
to obtain relief from alleged unconstitutional segregation of the Dayton public schools resulting from actions by defendants.
2
Reference is made to the previous decisions of this court for a detailed recitation of facts and issues.
See Brinkman v. Gilligan,
In its initial opinion filed February 7, 1973, the district court found that racially imbalanced schools, optional attendance zones, and the rescission by the Dayton Board of Education (hereinafter Board) of three resolutions calling for racial and economic balance in each public school were “cumulatively in violation of the Equal Protection Clause” of the Constitution. In
Brinkman I, supra,
Following remand, this court again rejected the desegregation plan adopted by the district court on the grounds that the plan failed to eliminate the “basic pattern of one-race schools” and the “continuing effects of past segregation” throughout the Dayton school system.
Brinkman II, supra,
On remand we direct that the court adopt a system-wide plan for the 1976-77 school year that will conform to the previous mandate of this court and to the decisions of .the Supreme Court in
Keyes
[Keyes v.
School District No. 1,
After evidentiary hearings and the appointment of a master, the district court ordered the implementation of a systemwide desegregation plan for the 1976-77 school year subject to flexible guidelines. 4
*246
In
Brinkman III, supra,
first determine whether there was any action in the conduct of the business of the school board which was intended to, and did in fact, discriminate against minority pupils, teachers, or staff.
* * * * * *
If such violations are found, the District Court in the first instance, subject to review by the Court of Appeals, must determine how much incremental segre-gative effect these violations had on the racial distribution of the Dayton school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy must be designed to redress that difference, and only if there has been a system-wide impact may there be a systemwide remedy, (citations omitted).
On remand, the district court conducted evidentiary hearings November 1 — i, 1977, and in its decision issued December 15,1977, held that:
[TJhere is a burden upon plaintiffs to establish by a preponderance of evidence both a segregative intent and an incremental segregative effect in order to establish a violation of the Equal Protection Clause of the Fourteenth Amendment. (emphasis added). JA-I at 104. Pursuant to this misunderstanding 6 of the Supreme Court’s mandate, the district court individually examined each alleged constitutional violation both for segregative intent and incremental segregative effect. The district court concluded that plaintiffs had failed to meet this burden of proving a constitutional violation and dismissed the complaint. Following the filing of this appeal, this court on January 16,1978, ordered defendants “to cause said system-wide desegregation plan to remain in effect pending appeal, or until further order of this court.”
Appellants and the United States as ami-cus curiae (hereinafter collectively referred to as appellants) contend that various findings of fact and conclusions of law of the district court are both clearly erroneous and are based upon incorrect legal standards. They urge this court to address the legal and factual issues previously reserved in
Brinkman I, supra,
Upon a review of the entire record, the arguments of counsel, and upon consideration of the legal and factual issues previously reserved by this court in
Brinkman I, supra,
I. Pre-Brown violations
This court previously reviewed defendants’ purported intentional segregative acts alleged to have occurred prior to 1954 and concluded that “the Dayton school system has been and is guilty of de jure segregation practices” 8 which constituted a “basically dual system,” 9 at the time of Brown I. Although we believe this finding to have been implicit in the previous decisions of this court, we now expressly hold that at the time of Brown I, defendants were intentionally operating a dual school system in violation of the Equal Protection Clause of the fourteenth amendment. Our holding is based upon substantial evidence, much of which is undisputed. The finding of the district court to the contrary 10 is clearly erroneous, Rule 52, Fed.R.Civ.P., and is based upon both a failure to attribute the proper legal significance to the evidence of pre-Brown I violations and upon various errors of law.
Our review of the record reveals that as of the 1951-52 school year — the last period prior to
Brown I
for which racial statistics were compiled — the Dayton school board pursued an overt policy of faculty segregation and, through a variety of measures, endeavored to segregate pupils on a racial basis. Defendants admitted that prior to 1951 the Board forbade the assignment of black teachers to white or mixed classrooms “pursuant to an explicit segregation policy.”
11
The district court found that “until
*248
1951 the Board’s policy of hiring and assigning faculty was purposefully segrega-tive.”
12
A review of the record establishes to our satisfaction that the assignment of faculty was purposefully segregative;
13
but contrary to the finding of the district court, we found in
Brinkman I, supra,
The undisputed evidence reflects that during the 1951-52 school year, the faculty at the four 100 percent black schools (Garfield, Dunbar, Willard, and Wogamon) was 100 percent black whereas with one exception,
14
the faculty at all other schools in the system was 100 percent white.
15
Defendants further admitted that as of 1954, 91.4 percent of the 162 non-travelling black teachers were assigned to schools with all black student populations.
16
Thus, at the time of
Brown I,
it was possible to identify a “black school” in the Dayton system without reference to the racial composition of pupils. In
Swann v. Charlotte-Mecklenburg Board of Education,
Independent of student assignment, where it is possible to identify a ‘white school’ or a ‘Negro school’ simply by reference to the racial composition of teachers and staff ... a prima facie case of violation of substantive constitutional rights under the Equal Protection Clause is shown. 17
The district court, however, failed to attribute the proper legal significance to the deliberate policy of faculty segregation adopted and applied by defendants.
The purposeful segregation of faculty by race was inextricably tied tо racially motivated student assignment practices. The record reflects that in the 1951 — 52 school year, 77.6 percent of all students attended schools in which one race accounted for 90 percent or more of the students and 54.3 percent of the black students were assigned
*249
to the four schools that were 100 percent black.
18
We recognize that racial imbalance in student attendance patterns is not in itself a constitutional violation.
See Dayton Board of Education v. Brinkman, supra,
We reject any suggestion that remoteness in time has any relevance to the issue of intent. If the actions of school authorities were to any degree motivated by segregative intent and the segregation resulting from those actions continues to exist, the fact of remoteness in time certainly does not make those actions any less ‘intentional.’
Second, with respect to the question of attenuation, defendants have failed to meet their burden of proving that the effects of any past intentional actions have become attenuated.
Keyes, supra,
Garfield school was the site of intra-school racial segregation which began in 1912 and was ruled illegal by the Supreme Court of Ohio in
Board of Education of School District of City of Dayton v. State ex rel. Reese,
The district court found that Dunbar high school intentionally had been established as a district-wide school for only black students with an all black faculty and a black principal. 23 The record reveals that black students throughout Dayton automatically were assigned or otherwise were induced to attend Dunbar and that, in many instances, black students crossed attendance boundaries to do so. 24 Defendants further admitted that until approximately 1947, Dunbar was not allowed to participate in the city athletic conference and consequent *250 ly, Dunbar athletic teams played other all black high schools from other cities. 25 Defendants also admitted that until several months after the decision in Brown I, black childrеn were transported by bus from an orphanage past white schools to Dunbar. 26 The district court found that this practice was “arguably ... a purposeful seg-regative act.” 27 To the extent that this finding implies that this practice was not purposefully segregative, it is clearly erroneous.
Defendants assert that since attendance at Dunbar was voluntary, there is no justification for finding that the establishment and operation of the school constituted intentionally segregative acts. This argument misses the point entirely. First, until at least as late as 1952, the option of attending Dunbar was available only to blacks since, pursuant to school board policy, whites could not be taught by Dunbar’s all black faculty. Second, the record reflects that many black children were automatically assigned or otherwise encouraged to attend Dunbar regardless of choice. 28 Finally, the record indicates that the “choice” of attending Dunbar, in many instances, may have been merely a less drastic alternative than attending other schools which practiced intra-school segregation and discrimination. 29
In this manner and through these procedures, the Board intentionally operated Dunbar as an all black school until it was closed as a high school in 1962. The operation of Dunbar clearly had the effect of keeping other high schools throughout the district predominantly white during those years. 30
The record reflects that during the early 1940’s, the student body of Wogamon elementary school became predominantly black in part because the Board permitted white students to transfer to predominantly white schools. 31 In June 1945, Wogamon closed with an all white staff and reopened in September 1945 with an all black staff and a black principal. 32 Wogamon subsequently became and presently is an all black school. Similarly, the record reflects that in the 1930’s the Willard school became predominantly black due to increased black enrollment and the transfer of white students. The record indicates that in 1934, Willard school had a 50 perсent black student body and a faculty which was 38 percent black. The following year, however, the student body became approximately 95 *251 percent black with an all black faculty. 33 By 1947, Willard was 100 percent black in student enrollment and subsequently it has remained a one race school.
Additional evidence also establishes that prior to 1954, the Board pursued a policy of racial separation. Defendants admit that until approximately 1950, “separate facilities, including separate swimming pools and locker room facilities were maintained at Roosevelt [school] for black and white students.” 34 In addition, during the late 1940’s and early 1950’s, defendants operated one race classrooms in officially one race housing projects which the district court found were “strictly segregated according to race.” 35
Upon a review of this evidence, the relevant inquiry is whether at the time of
Brown I,
or any time thereafter, defendants were operating a dual school system in violation of the Equal Protection Clause of the fourteenth amendment. In
Keyes v. School District No. 1, supra,
In
Brinkman II, supra,
The district court erred both in failing to accord the proper legal significance to the facts extant at the time of
Brown I
and in failing to apply the appropriate presumption and burden-shifting principles of law. The district court failed to attribute the proper legal significance to the deliberate policy of faculty segregation which, at the time of
Brown I,
made it possible to identify a “black school” in the Dayton system without reference to the racial composition of pupils.
39
The district court also failed to attribute the proper legal significance to the evidence that at the time of
Brown I,
Garfield, Willard, Wogamon and Dunbar schools were deliberately segregated or racially imbalanced due to the actions of defendants. These facts were sufficient to constitute a prima facie violation of the fourteenth amendment under the rule of
Swann, supra,
A presumption of segregative purpose arises when plaintiffs establish that the natural, probable, and foreseeable result of public officials’ action or inaction was an increase or perpetuation of public school segregation. The presumption becomes proof unless defendants affirmatively establish that their action or inaction was a consistent and resolute application of racially neutral policies, (citations omitted).
Accord, Arthur v. Nyquist,
[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 segrega-tive actions. This is true even if it is determined that different areas of the school district should be viewed independently of each other because, even in that situation, there is high probability that where school authorities have effectuated an intentionally segregative policy in a meaningful portion of the school system, similar impermissible considerations have motivated their actions in other areas of the system.
The district court erred in failing to shift the burden of proоf to defendants.
A review of the entire record indicates that defendants have not established that the character of the school system extant in 1954 was the result of racially neutral acts. We emphasize that defendants’ intentional segregative practices cannot be confined in one distinct area.
43
To the contrary, defendants’ segregative practices at the time of
Brown I
infected the entire Dayton public school system. There is no doubt that “racially inspired school board actions have an impact beyond the particular schools that are the subjects of those actions.”
Keyes, supra,
*253 II. Post-Brown violations
The district court’s error in failing to find that defendants were operating a dual school system at the time of
Brown I
resulted also in its failure to evaluate properly the Board’s
post-Brown I
actions, which must be judged by their efficacy in eliminating the continuing еffects of past discrimination. In
Brinkman I, supra,
Once the plaintiffs-appellants have shown that state-imposed segregation existed at the time of
Brown
(or any point thereafter), school authorities 'automatically assume an affirmative duty . . . to eliminate from the public schools within their school system “all vestiges of state-imposed school segregation.” ’
Keyes, supra,
Thus, for 24 years defendants have been under a constitutional duty to desegregate the Dayton public schools.
See Penick v. Columbus Board of Education,
A. Faculty and student assignment practices
In
Brinkman I, supra,
For example, in 1962 the Willard and Garfield schools, previously operated for blacks only, were closed and the all black Dunbar high school building was converted into McFarlane elementary school. Most of the children from the Willard and Garfield attendance areas simply were assigned to the McFarlane school which opened with an all black student body and an all black faculty. Some children from the Willard and Garfield areas also were assigned to the all black Miami Chapel and Irving elementary schools. Simultaneously, the new Dunbar high school opened with a virtually *254 all black student body and faculty. Defendants should have been required to rebut the reasonable presumption that the simultaneous assignment of both a predominantly black faculty and student body at these schools was the product of segrega-tive intent and an effort to perpetuate the dual school system extant at the time of Brown I.
This error was compounded by imposing upon plaintiffs the additional burden of proving specific causal relationships between the widespread faculty segregation practices and the substantial student segregation existing at the time of trial.
Nowhere in the record do defendants convincingly demonstrate that the systemwide student racial imbalance characteristic of the Dayton public school system since at least the time of
Brown I
likewise was not the product of segregative acts.
Keyes, supra,
[I]f respondent School Board cannot disprove segregative intent, it can rebut the prima facie case only by showing that its past segregative acts did not create or contribute to the current segregated condition of the core city schools.
Id.
at 211,
Defendants have failed to establish that their prior segregative acts did not create or contribute to the current segregated condition of the Dayton schools.
In
Brinkman I, supra,
Enrollment data from the Dayton system reveals the substantial lack of progress that has been made over the past 23 years in integrating the Dayton school system. In 1951-52, of 47 schools, 38 had student enrollments 90 per cent or more one race (4 black, 34 white). Of the 35,000 pupils in the district, 19 per cent were black. Yet over half of all black pupils were enrolled in the four all black schools; and 77.6 per cent of all pupils were assigned to virtual one race schools. ‘Virtual one race schools’ refers to schools with student enrollments of 90 per cent or more one race. In 1963-64, of 64 schools, 57 had student enrollments 90 per cent or more one race (13 black, 44 white). Of the 57,400 pupils in the district, 27.8 per cent were black. Yet 79.2 per cent of all black pupils were enrolled in the 13 black schools; and 88.8 per cent of all pupils were enrolled in such one race schools.
In 1971-72 (the year the complaint was filed), of 69 schools, 49 had student enrollments 90 per cent or more one race (21 black, 28 white). Of the 54,000 pupils 42.7 per cent were black; and 75.9 per cent of all black students were assigned to the 21 black schools. In 1972-73 (the year the hearing was held) of 68 schools, 47 were virtually one race (22 black, 25 white); fully 80 per cent of all classrooms were virtually one race. (Of the 50,000 pupils in the district, 44.6 per cent were black).
Every school which was 90 per cent or more black in 1951-52 or 1963-64 or 1971-72 and which is still in use today remains 90 per cent or more black. Of the 25 white schools in 1972-73, all opened 90 per cent or more white and, if open, were 90 per cent or more white in 1971-72, 1963-64 and 1951-52.
Nowhere in the record have defendants demonstrated that the present systemwide racial imbalance would have occurred even in the absence of their segregative acts. As the Supreme Court noted in
Swann, supra,
*255
The conclusion that the maintenance of persistent racial imbalance in the Dayton schools was not merely adventitious is bolstered by defendants’ use of optional attendance zones for racially discriminatory purposes in clear violation of the Equal Protection Clause.
51
In 1973, the district court determined that some optional attendance zones had been created intentionally for racially segregative purposes and that the zones had demonstrable racial effects.
52
These findings of fact were affirmed by this court in
Brinkman I, supra,
B. School construction and site selection
The evidence of record establishes that of 24 new schools constructed between 1950 and the time this action was instituted, 22 opened 90 percent or more black or white.
55
During the same period, 78 of the 86 additions of classroom space for which racial compositions are known were made to schools 90 percent or more one race.
56
Coupled with these practices were some instances of the coordinate racial assignment of professional staffs to these schools and additions on the basis of the racial composition of the pupils served by the schools.
57
This court noted in
NAACP v. Lansing Board of Education,
The district court’s conclusion that defendants’ school construction and site selection practices had no segregative effect likewise is clearly erroneous. Instead of meeting their affirmative duty to disestablish the dual school system extant at the time of Brown I and to diffuse black and white students throughout the Dayton school system, defendants pursued a policy of containment through school construction and site selection practices. As noted previously, at the time of the initial hearings in this case, approximately 80 percent of all classrooms in the Dayton school system were virtually one race. On the basis of the evidence of record, the conclusion is inescapable that defendants’ school construction and site selection practices were segregative in effect.
C. Grade structure and reorganization
Appellants’ principal objection in this area is to the establishment in the 1971-72 school year of a middle school system which allegedly had a segregative effect. In a report issued in 1971, the Ohio Department of Education characterized the middle school system as the apparent addition of
one more action to a long list of state-imposed activities which are offensive to the Constitution and which are degrading to school children. Along with many other affirmative duties which the Dayton Board must fulfill, correction of this particular offense must ocсur. PX 12, JA-V at 454.
The report further opined that:
Of the five sets of schools currently involved in the process of conversion to feeder and middle schools, the following seems to be occurring:
1. two sets of schools will be totally black;
2. racial isolation will actually be increased in one set of schools; and
3. only in the Dayton View area, which was previously integrated, could conversion to middle schools possibly result in reduction of racial and economic isolation and insulation. Id.
Unrebutted testimony concluded that the effect of the middle school system was to increase or maintain segregation rather than to eradicate it in accordance with defendants’ affirmative duty to disestablish the dual system. 60 The district court found that the middle schools had both “a segre-gative effect and an integrative effect." 61 Nevertheless, the district court concluded that plaintiffs had failed to establish segre-gative intent in the establishment of the middle schools. This finding is questionable in light of plaintiffs’ convincing demonstration that the natural, probable, and foreseeаble result of the establishment of the middle schools was an increase or perpetuation of segregation. The district court failed to recognize the middle school system as one of the areas in which defendants failed to disestablish Dayton’s dual school system.
Upon consideration of the record, the conclusion is inescapable that, rather than eradicate the systemwide effects of the dual system extant at the time of
Brown I,
defendants’ racially motivated policies with respect to the assignment of faculty and students, use of optional attendance zones, school construction and site selection, and grade structure and reorganization perpetuated or increased public school segregation in Dayton. Thus, defendants have utterly failed to comply with their ongoing 24 year
*257
obligation to desegregate the Dayton public schools,
Penick v. Columbus Board of Education, supra,
III. Remedy
In
Dayton Board of Education v. Brinkman, supra,
[T]he District Court in the first instance, subject to review by the Court of Appeals, must determine how much
incremental segregative effect,
these violations had on the racial distribution of the Dayton school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy must be designed to redress that difference, and only if there has been a systemwide impact may there be a systemwide remedy.
Keyes,
Contrary to the conclusion of the district court,
62
we are convinced that the term “incremental segregative effect” used by the Supreme Court in the
Brinkman
decision, was not intended to change the standards for fashioning remedies in school desegregation cases.
Penick v. Columbus Board of Education, supra,
The district court committed two errors in its approach to this inquiry. First, it individually examined each alleged constitutional violation as if it were an isolated occurrence and sought to determine the incremental segregative effect of that occurrence. In
Keyes, supra,
We have never suggested that plaintiffs in school desegregation cаses must bear the burden of proving the elements of de
jure
segregation as to each and every school or each and every student within the school system. Rather, we have held that where plaintiffs prove that a current condition of segregated schooling exists within a school district where a dual system was compelled or authorized by statute at the time of our decision in
Brown v. Board of Education,
The district court’s act-by-act approach is no more valid than the school-by-school approach rejected in
Keyes.
As this court noted in
Penick, supra,
Dayton does not . . . require each of fifty segregative practices or episodes to be judged solely upon its sepa *258 rate impact on the system. The question posed concerns the impact of the total amount of segregation found — after each separate practice or episode had added its ‘increment’ to the whole. It was not just the last wave which breached the dike and caused the flood.
Secondly, the district court erred in allocating the burden of proof on the issue of incremental segregative effect to plaintiffs, requiring them to establish both racial discrimination and the specific incremental effect of that discrimination. Where plaintiffs prove, as here, a systemwide pattern of intentionally segregative actions by defendants, it is the defendants’ burden to overcome the presumption that the current racial composition of the school population reflects the systemwide impact of those violations.
See Keyes, supra,
We hold further that each of defendants’ poliсies and practices detailed in this opinion added an increment to the sum total of the constitutional violations.
Finding that the constitutional violations before the court have a systemwide impact,
Brinkman, supra,
Notes
. Parents of children attending schools operated by the defendant Board of Education (hereinafter Board) filed this action on April 17, 1972, alleging that defendants were responsible for operating a racially segregated school system in violation of the fourteenth amendment and Federal civil rights statutes, 42 U.S.C. §§ 1981, 1983-88, 2000d.
. Defendants included the Dayton Board of Education, its superintendent and individual members, and the governor, attorney general, State Board of Education, and superintendent of public instruction of the State of Ohio. Appellants have not sought any relief against the State defendants on the present appeal. “Defendants,” as used in this opinion, refers to the local defendants.
. These practices are in the areas of faculty and staff assignment; school closing and site selection; grade structure and reorganization; and pupil transfers and transportation. The district court did not include any of these practices within its finding of a cumulative constitutional violation.
. The plan required that the racial distribution of each school be brought within 15 percent of the black-white population ratio of Dayton whiсh was 48 percent black and 52 percent white. In its order of December 29, 1975, the district court stated:
In the achieving of the redistribution required on a school-by-school basis, the guidelines will be followed wherever possible for elementary students.
1. Students may attend neighborhood walk-in schools in those neighborhoods where the schools already have the approved ratio;
2. Students should be transported to the nearest available school.
*246 3. No student should be transported for a period of time exceeding twenty (20) minutes, or two (2) miles whichever is shorter.
JA-I at 55. [Citations to the record are to the joint appendix (JA) and the volume of the appendix (e. g., -I) unless otherwise noted].
. The Supreme Court, however, directed that the plan approved by this court in Brinkman III should remain in effect for the 1977-78 school year “subject to such further orders of the District Court as it may find warranted following the hearings mandated by this opinion."
. See note 36, infra, and accompanying text.
. Order of March 10, 1975, JA-I at 38.
.
Brinkman II, supra,
.
Brinkman I, supra,
. See note 7, supra and accompanying text.
.
Brinkman I, supra,
9. Not until 1951 did the Board of Education adopt a policy of assigning any black citizen to teach in whitе or mixed classrooms.
See Answers to Plaintiffs’ Request for Admissions filed by defendants Dayton Board of Education, Josephine Groff, James D. Hart and William E. Goodwin (hereinafter Board admissions), admission 9, JA-I at 128; Answers to Plaintiffs’ Requests for Admissions filed by defendants Dr. Wayne M. Carle, Superintendent of Schools, and Jane Sterzer (hereinafter Carle admissions), admission 9, JA-I at 135. See generally Plaintiffs’ Exhibits (hereinafter PX) 100 A-E, JA-V at 502-06; PX 29, JA-V at 484-85.
In 1951-52, the Board substituted the following new but equally unacceptable policy:
*248 The school administration will make every effort to introduce some white teachers in schools in negro areas that are now staffed by negroes, but it will not attempt to force white teachers, against their will, into these positions.
The administration will continue to introduce negro teachers, gradually, into schools having mixed or white populations when there is evidence that such communities are ready to accept negro teachers. PX 21, JA-V at 481.
Cf. Cooper v. Aaron,
Superintendent Carle admitted that:
11. About 1951 the Board announced a pоlicy, again for the first time, of introducing white teachers in schools having Negro population; on November 30, 1954, only 8 full or part-time white teachers, or 0:6% of the 1409 white teachers were in these situations. Defendant French at that time as Superintendent attributed such lack of success to the reluctance of white teachers to teach in the black schools; moreover, it was then the District’s policy and so remained until the late 1960’s, not to assign or reassign white teachers to black schools against their will. Even into the late 1960’s white teachers often were not hired or refused employment or were assigned to predominately white schools in the District because of the availability of teacher openings in the suburban, all white schools, the personal beliefs and behavior of white applicants, and the policies and practices of the District.
Carle admission 11, JA-i at 135. The Board also admitted the above statement in substantial part. See Board admission 11, JA-I at 128-29.
. Opinion of December 15, 1977, JA-I at 73.
.
See, e. g.,
testimony of Dr. Wayne Carle, quoted in
Brinkman I, supra,
. The sole exception apparent from the record was one black teacher who was assigned during the 1951-52 school year to teach black students at a school with a 67.6 percent black enrollment — the highest black enrollment less than 100 percent. See PX 3, JA-I at 139; PX 100E, JA-V at 506; PX 130B, JA-V at 507.
. See PX 100E, JA-V at 506; PX 130B, JA-V at 507.
. See Board admission 10, JA-I at 128; Carle admission 10, JA-I at 135.
.
See United States v. Board of School Commissioners of Indianapolis, Indiana,
.
See
PX 2B, JA-V at 312;
Brinkman I, supra,
. Defendants admitted that:
1. In 1918 defendant Dayton Board assigned 4 black teachers to a frame two-story house which was converted to a school building for black students and which was located immediately behind the Garfield school, a brick building. All white children and all white teachers were assigned to the brick building; only black teachers and black students were assigned to the frame structure.
See Board admission 1, JA-I at 125; Carle admission 1, JA-I at 134.
. See Carle admission 2(b), (c), JA-I at 134.
. See Carle admission 2(d), JA-I at 134.
. See PX 1501, JA-V at 524; JA-II 260-61, 329-31.
. Opinion of February 7, 1973, JA-I at 3; Opinion of December 15, 1977, JA — I at 88. See Board admission 7(a), JA-I at 127; Carle admission 7(a), JA-I at 135.
. See JA-II, 268, 478-79; JA-III, 547-49, 632-33.
. See Board admission 7(f), JA-I at 128; Carle admission 7(f), JA-I at 135.
. See Carle admission 7(d), JA-I at 125; Board admissions 7(d) 31A, JA-I at 127, 131. The Board has adopted conflicting positions with respect to the termination of this practice. In admission 7(d), supra, the Board states that “this policy terminated as of 1950.” In admission 31A, however, the Board states that “this practice stopped in 1954.” Other evidence in the record establishes without question that this practice was not discontinued until September 1954. See PX 28, JA-V at 483.
. Opinion of December 15, 1977, JA-I at 78.
. See JA-II at 479; JA-III at 547-49.
. See JA-II at 253, 284; testimony of Dr. Wayne Carle, Joint Appendix vol. 4, at 1518a-19a filed in Brinkman I, supra. The relevant colloquy between counsel and Dr. Carle is as follows:
Q. Dr. Carle, I think you perhaps misunderstood my question. I am talking about Dunbar in its earliest stage. There was testimony from black witnesses that they 'chose Dunbar,’ and I asked you in the context of the pupil assignment practices whether or not such a choice is a free choice as if in the case of Roosevelt students were subject to discriminatory practices [sic].
A. I wouldn’t rate it as a free choice since social pressures are so persuasive and subtle and young people so impressionable and peer influence so all-encomрassing. That choice would be almost absent as I would understand it.
. The Supreme Court in
Keyes v. School District No. 1, supra,
A practice of concentrating Negroes in certain schools by structuring attendance zones or designating ‘feeder’ schools on the basis of race has the reciprocal effect of keeping other nearby schools predominantly white.
See JA-III at 634.
. See Carle admission 4(a), JA-I at 134.
. See PX 1501, JA-V at 524.
. Id
. See Board admission 7A(a), JA-I at 128; Carle admission 7A(a), JA-I at 135.
. Opinion of December 15, 1977, JA-I at 67. See PX 143B, JA-V at 510-12; PX 161B, JA-V at 540; JA-I at 194-206.
. Contrary to this clear standard, the district court held that plaintiffs must establish both segregative intent and incremental segregative effect in order to establish a constitutional violation. See note 6, supra, and accompanying text.
.
Keyes v. School District No. 1, supra,
. See note 7, supra, and accompanying text.
. See notes 16-17, supra, and accompanying text.
. See note 17, supra, and accompanying text.
.
See Village of Arlington Heights v. Metropolitan Housing Development Corp.,
.
See Keyes v. School District No. 1,
. The Dayton school system is not divided into “separate, identifiable and unrelated units.”
Keyes v. School District No. 1,
. See note 30, supra.
. Opinion of December 15, 1977, JA-I at 70, 76.
. For a detailed discussion of the Board’s post-Brown
I
faculty assignment practices, see
Brinkman I, supra,
. See, e. g„ JA-II 418; JA-III 644^5; PX 4, JA-V 316-17; PX 5A, JA-V 319; PX 5D, JA-V 320; PX 130C, JA-V 508; PX 130D, JA-V 509; board admissions 8, 12-18, JA-I 128-29; Carle admissions 8, 12-18, JA-I 135.
. Opinion of December 15, 1977, JA-I at 73.
. See note 17, supra, and accompanying text. Even at the time this action was instituted, it was possible to identify a “black school” in the Dayton school system without reference to the racial composition of the students.
. In
Keyes,
supra,
[A] connection between past segregative acts and present segregation may be present even when not apparent and that close examina *255 tion is required before concluding that the connection does not exist. Intentional school segregation in the past may have been a factor in creating a natural environment for the growth of further segregation.
.
See Brinkman I, supra,
. Opinion of February 7, 1973, JA-I at 5-6.
. Opinion of December 15, 1977, JA-I at 75.
. See generally JA-I at 81-91.
. See PX 4, JA-V 316-317; JA-III 562-63.
. JA-III at 649-50.
. See PX 4, JA-V 316-17; JA-III 644, 794-96; JA-IV 927-28.
. We note that:
While it is true that a court may infer such an intent from the circumstances there is no authority for the proposition that such an intent must be inferred in all cases where segregated patterns exist in fact. The inference is permissible, not mandatory, (emphasis in original).
Higgins v. Board of Education,
. JA-I at 97.
. See JA-III at 646.
. Opinion of December 15, 1977, JA-I at 77.
. See JA-IV at 909; opinion of December 15, 1977, JA--I at 103.
. See note 37, supra, and accompanying text.