It is further ordered that the defendants take, at a minimum, the following specified actions to fulfill their affirmative duty to achieve a nondiscriminatory school system: 1. Immediately take steps to assign faculty and staff so that no school is racially identifiable from the racial composition of its faculty or staff. Mandatory assignments or reassignments are to be made if necessary, and the assignments to achieve full desegregation will be made prior to or with the opening of schools in September 1971. This Court further notes that the evidence adduced in this cause shows that, in faculty and staff reassignment heretofore effected, these reassignments have tended to result in more experienced Negro faculty and staff being transferred and/ or assigned to schools attended predominantly by white students and more inexperienced white faculty and staff being transferred and/or assigned to schools attended predominantly by Negro students. Defendants should, accordingly, redress or tend to redress this situation in making whatever assignments or reassignments that are necessary to comply with this order. 2. Immediately continue with their plans to desegregate and relocate Crispus Attucks High School. 3. Immediately amend the "majority-to-minority" transfer policy to conform to the requirements enunciated by the Supreme Court in Swann, so that such transfers are not to be dependent upon availability of space in the receiving school and so that transportation will be provided, upon request, to students making such transfers. Provided, however, that the board may request authority to designate the transferee school or schools in the event that extreme diffusion of requests presents practical problems of transportation, or in the event that extreme concentration of requests threatens the racial stability of a given school, that is, the tipping point factor. 4. Immediately give all possible publicity to students and parents of students who may be eligible for transfer under (3), regarding the new policy. 5. Immediately attempt to negotiate with the outside school corporations for possible transfer of minority race students to such outside schools, including high schools, for the coming school year.99 6. Immediately resurvey the probable racial make-up of all schools for the 1971-72 school year, and take appropriate action to prevent schools, including high schools, now having a reasonable white-black ratio from reaching the tipping point. Transportation of students into or out of such schools shall be resorted to as required.100 "If the outside school corporations have the capacity to accept transfer of white students, they have the capacity to accept minority race students. Further, the board has available many portable classrooms and could, with a little imagination, "lend-lease" teachers, if necessary. This Court regards the outcry made in some quarters against "busing" as ridiculous, in this age of the automobile. Most students in the outside school corporations have been bussed for years, with never a complaint against busing per se. Students required to be bused could be required to walk to their former schools for ease of pickup and speed in delivery. 7. Immediately cease and desist from going forward with construction of the Forest Manor School until the Court hears further evidence on this subject. It is recognized that the orders thus far made will not result in significant desegregation of majority-black schools immediately, unless the voluntary transfer and outside school corporation transfer policies are unusually successful. It is also recognized that mandatory transfers to maintain stability pursuant to subparagraph (6) may largely involve Negro students, as is certain with regard to transfers to the outside school corporations. Neither of these facts seems "fair" in a theoretical sense, and have caused the Court a great deal of concern. However, there is a limit to what can be accomplished at one time, and final plans cannot be made until answers are found to the seven legal questions posed. Determination of such questions will be expedited to the utmost degree consistent with due process. Meanwhile, the defendants are directed to file, on or before September 3, 1971, the plans they propose for the 1971-72 school year pursuant to the within order and on their own initiative, with the usual copies to counsel and amicus curiae, who shall have the right to object thereto and/or to make their own suggestions within 10 days thereafter. Such plans shall include their current proposals regarding the site of and assignment of pupils to the proposed Forest Manor Middle School. It is finally considered and adjudged that the defendant school board pay the costs of this action. All of which is considered, ordered and adjudged this 18th day of August, 1971. S. HUGH DILLIN, Judge. BRADLEY v. RICHMOND Civ. Action 3353 (D.C. Va. 1972) MEMORANDUM The hearing on the issues currently before the court in this school desegregation case, which has been before the court in one posture or another for many years, encompassed weeks of trial, involving eight separate groups or parties, each represented by a team of lawyers, and included the introduction of more than 325 exhibits. The primary defendants in the instant issue are members of the Virginia State Board of Education; the State superintendent of public instruction; and the members of the respective school boards and boards of supervisors of Henrico and Chesterfield Counties, both of which adjoin the city of Richmond, Va.; and the school board and city council of the city of Richmond. The task of complying with the requirements of F.R.C.P. 52 in setting out the court's findings of fact and conclusions of law requires that this memorandum be divided generally into a brief history of the litigation, general findings of fact and conclusions of law, and a section containing precise and specific findings as illustrative instances of the more general findings. The court has jurisdiction over all necessary parties in this appropriate class action, 28 U.S.C. section 1343 (3) and (4); 42 U.S.C. section 1983; rule 23 (a) and (b) (2) of the Federal Rules of Civil Procedure. Excerpts from this court's opinion in Bradley v. School Board of City of Richmond, 317 F. Supp. 555 (1970), establish the present stage of this litigation. At the time, the schools of the city of Richmond were being operated under a freedom of choice plan, and the plan was approved primarily to insure the opening of schools on the then planned date in September 1970. HISTORY OF LITIGATION [Excerpts from Bradley, supra] "On March 10, 1970, the plaintiffs filed a motion for further relief, based upon the mandates of our appellate courts requiring school boards to put into effect school plans which would promptly and realistically convert public school systems into ones which were unitary, nonracial systems, removing all vestiges of racial segregation.” On March 12, 1970, the court ordered the defendants to "... within 10 days from this date, advise the court if it is their position that the public schools of the city of Richmond, Va., are being operated in accordance with the constitutional requirements to operate unitary schools as enunciated by the U.S. Supreme Court." On March 19, 1970, defendants filed a statement to the effect that "they had been advised that the public schools of the city of Richmond are not being operated as unitary schools in accordance with the most recent enunciations of the Supreme Court of the United States," and further that they had "requested the Department of Health, Education, and Welfare to make a study and recommendation as to a plan which would insure the operation of a unitary school system in compliance with decisions of the U.S. Supreme Court," said plan to be ready by May 1, 1970. A pretrial conference was held in open court on March 31, 1970. at which time the court having some doubt as to the effect or intent of the defendants' statement of March 19, 1970, "that they had been advised that the public schools of the city of Richmond are not being operated as unitary schools in accordance with the most recent enunciations of the Supreme Court of the United States," inquired as to whether defendants were desirous of an evidentiary hearing as to the plan they were then operating under, that is, freedom of choice. The defendant school board, by counsel, advised the court that such a hearing would not be necessary and admitted that their freedom of choice plan, although operating in accord with this court's order of March 30, 1966, was operating in a manner contrary to constitutional requirements. As a consequence thereof, the court on April 1, 1970, entered a formal order vacating its previous order of March 30, 1966, and mandatorily enjoining the defendants to disestablish the existing dual system of schools and to replace same with a unitary system, the components of which are not identifiable as either "white" or "Negro" schools. The defendant school board was directed to file its proposed plan by May 11, 1970. Plaintiffs were to file exceptions by June 8, 1970, and hearings were set for June 19, 1970. The court heard and considered motions to intervene and permitted all who so moved to intervene, pursuant to Fed. Rules Civ. Proc. Rule 24(b), 28 U.S.C. Exceptions to the HEW plan were filed by the plaintiffs and those intervenors described as Northside residents. The hearing on all proposed plans and exceptions thereto was commenced on June 19, 1970, and concluded on June 26, 1970, at which time the court, recognizing the necessity for expeditious rulings and intending to file these more detailed findings of fact and conclusions of law. advised the defendant school board that its proposed HEW plan was not acceptable-a conclusion which the court felt then and still feels should have been patently obvious in view of the opinion of the U.S. Court of Appeals for the Fourth Circuit in Swann v. Charlotte-Mecklenburg Board of Education, 431 F. 2d (4th Cir. 1970), which had been rendered on May 26, 1970. STUDENT POPULATION BY RACE UNDER FREEDOM OF CHOICE IN EFFECT 1969-70 As of May 1, 1970, the Richmond public school system enrolled approximately 52,000 students. The racial composition of the school stu dent population was roughly 60 percent black and 40 percent white. The board operated 61 school facilities. HIGH SCHOOLS Of the seven high schools, three were 100 percent black; one was 99.26 percent white; one was 92 percent white; one 81 percent white and one 68 percent black, the latter being John Marshall located on the Northside of the city. MIDDLE SCHOOLS Of the middle schools, three were over 99.91 percent black (99.92 percent, 100 percent, 100 percent); one was 88 percent black; one 73 percent black; three were over 91 percent white (91 percent, 97 percent, 98 percent), and one was 69 percent black. ELEMENTARY SCHOOLS Seventeen elementary schools were 100 percent black; four others were in excess of 99.29 percent black; one was 78 percent black; one was 37 percent black; and another was 30 percent black. Two schools were 100 percent white; 13 others were 90 percent or better white; two others were 86 percent or better white; five others were between 53 and 70 percent white. As to the 12 schools with special programs, two were 100 percent black; one was 92 percent black; one was 83 percent black; two others 60 percent or better black; four schools had white students ranging from 78 to 100 percent; two others were 53 percent or better white. FACULTY AND STAFF Out of a total faculty and staff of 2,501, excluding special program schools, 4 had 100 percent white faculty and staff; 13 had 100 percent black faculty and staff; 16 others had 90 percent or better white faculty and staff; FACULTY AND STAFF BY AREA East end side of city. 92.2 percent black- 7.8 percent white Southside area. 30.0 percent black-70.0 percent white Annexed area_ 2.5 percent black-97.5 percent white West end-Northside---- 50.6 percent black-49.4 percent white There is little doubt that under freedom of choice Richmond public schools had not achieved a unitary system as required by law-see Green v. County School Board of New Kent, supra. In 1965 the defendant school board was directed to desegregate the faculties and staffs of the public schools, Bradley v. School Board of City of Richmond, 382 U.S. 103, 86 S. Ct. 224, 15 L. Ed. 2d 187 (1965); yet out of a total of 658 faculty and staff members in the east end area schools, 607 were black and 51 white; in the southside area schools, 108 were black and 252 were white; in the west end-northside area schools, 459 were black and 448 were white (even there the assignment of faculty and staff |