Armstrong v. Brennan, 76-1130

• Decision Date: 22 September 1976
• Docket Number: No. 76-1130,76-1130
• Citation: 539 F.2d 625
• Parties: Kevin ARMSTRONG, * a minor, by Roosevelt Savage and Rochelle Savage, his parents and next friends, et al., Plaintiffs-Appellees, v. Thomas BRENNAN et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 625

539 F.2d 625

Kevin ARMSTRONG, ^* a minor, by Roosevelt Savage and Rochelle Savage, his parents and next friends, et al., Plaintiffs-Appellees, v. Thomas BRENNAN et al., Defendants-Appellants.

No. 76-1130.

United States Court of Appeals, Seventh Circuit.

Argued June 2, 1976.

Decided July 23, 1976.

Rehearing and Rehearing En Banc Denied September 22, 1976.

L. C. Hammond, Jr., Milwaukee, Wis., for defendants-appellants.

Lloyd A. Barbee, Irvin Charne, Milwaukee, Wis., for plaintiffs-appellees.

Before TONE and WOOD, Circuit Judges, and GRANT, Senior District Judge. ^**

TONE, Circuit Judge.

Before us on this interlocutory appeal is the District Court's ruling that the Board of School Directors of the City of Milwaukee and its members "have knowingly carried out a systematic program of segregation affecting all of the city's students, teachers, and school facilities, and have intentionally brought about and maintained a dual school system." Amos v. Board of School Directors of the City of Milwaukee, 408 F.Supp. 765, 821 (E.D.Wis.1976).

The plaintiffs are five black children, representing a class of all blacks who are or will be enrolled in the Milwaukee public schools, and three nonblack children, representing a similar class of nonblacks. ¹ Also appearing before us in support of affirmance is the Wisconsin Civil Liberties Union as amicus curiae. Defendants are the individual members of the school board, the superintendent of schools, and the board's secretary-business manager. ² In the order appealed from, they have been enjoined from future acts of segregation, and a special master has been appointed to assist in fashioning further relief. We have jurisdiction under 28 U.S.C. § 1292(a)(1), because the interlocutory order appealed from grants an injunction. To insure appealability, the District Court also certified the case under 28 U.S.C. § 1292(b) as appropriate for interlocutory review, 408 F.Supp. at 825, and we permitted the appeal to be taken upon application made within ten days. We affirm the District Court's order.

I. Overview of the Milwaukee School System and Its Operation

The Milwaukee public school system, the territory of which is coterminous with that of the City of Milwaukee, is one of the 15 largest school systems in the country. Since 1950, it has grown rapidly geographically, and in both total enrollment and black enrollment. ³ Thirty-five percent of the system's students are now black. In 1972-1973, 71 elementary schools had student bodies at least 90 percent white, 23 were at least 90 percent black, and 27 were in between. ⁴ In the same school year (the year before trial), some 80 percent of the city's black students attended majority black schools and over three quarters attended schools that were 80 percent or more black.

As in many cities, in Milwaukee the black population is concentrated in a central area, called "the core" by the parties. The core contained about 90 percent of the city's blacks in 1970, with the percentage of blacks ranging from 75-80 percent in the center of the core to 40 percent on the periphery. The District Court found that "(s)ubstantial numbers of blacks and whites have seldom resided in the same neighborhood or attended the same schools for a substantial period of time." 408 F.Supp. at 812. Once blacks comprise about 30 percent of the population of a neighborhood or a school, "white flight" generally begins, and whites leave in large numbers. The rate varies but the process is seldom reversed. Id.

Student population in the core area has grown rapidly, creating serious problems for the school system. Generally, schools there became overcrowded as older white residents were replaced by younger black families with children. When overcrowding was thought to be temporary, defendants converted into classrooms space in school buildings that had been used for other purposes, such as basement rooms, auditoriums, and gyms. In addition, they attempted to find vacant classrooms in nearby schools and moved students to those schools through busing, redistricting, or transferring grades (e. g., moving the entire ninth grade from a junior high school to a senior high school). If the crowding was thought to be long-term, the solutions included building an addition to an existing building, renting private school facilities, reopening an unused school building, and building a new school. Id. at 782. In making these and other decisions, defendants were guided by their neighborhood school policy. The goal was to assign students to schools within walking distance of their homes, in order to foster a close relationship between community and school, maximize convenience for students and their families, and minimize compartmentalization of the student's life between home and school. Id. at 780-781.

With this background in mind, we turn to a consideration of the actions alleged to be part of a pattern of deliberate segregation.

II. Acts of the Defendants Having Segregative Effects

A. Boundary Changes and School Siting

The District Court found that the effect of school boundary changes from 1950 to 1968

"was to increase the degree of racial imbalance in these schools. Of the 63 boundary changes, 29 increased the concentration of black students in ghetto schools. In one case it resulted in a number of black students attending a white school for the first time. Twenty-eight changes had no effect because there were no differences in the racial makeup of the losing school or the gaining school. In five cases the results were inconclusive as they affected schools that differed in their racial makeup, although in five cases majority black schools were involved." 408 F.Supp. at 813.

We cannot say this finding was clearly erroneous. It was based on a study by plaintiffs' expert, Dr. Robert P. Stuckert, in which he tabulated the racial composition of city blocks transferred in each boundary change between 1950 and 1968 as the changes affected schools that were 50 percent black by the 1968-1969 school year. Dr. Stuckert calculated that in 22 boundary changes affecting these schools, the percentage of black residents in the group of blocks transferred was lower than the percentage of black pupils in the "losing" school from which they were transferred. In each case, they were transferred to "gaining" schools that also had fewer blacks than the losing school. In other words, comparatively white blocks were in these instances shifted from black schools to white schools, or at least to schools with fewer blacks. In eight other instances, the percentage of black residents in the group of blocks transferred was higher than the percentage of black pupils in the losing school; in seven of these cases the gaining school had a lower percentage of whites. In sum, blocks with racial characteristics different from the losing school were shifted to schools with racial characteristics more like those of the transferred blocks.

Defendants argue that the District Court did not consider the racial impact on the "gaining" school. Although that court's opinion does not discuss this aspect of the transfers, it appears to us that over two thirds of them had a neutral effect on the gaining school, and, as for the rest, the integrative gains in some gaining schools are balanced by integrative losses in others. Thus, the effect on the gaining schools did not offset the adverse impact on the losing schools, and the net effect of the transfers was to increase racial imbalance.

Defendants also argue that Dr. Stuckert used an unreliable method to determine the racial composition of the blocks. For transfers during, immediately preceding, or immediately after a census year, block data from the census were used. For transfers during the period between the 1960 and 1970 censuses, data were obtained by interviewing people who had lived or worked in the area at the time of the boundary change, who were asked to estimate the racial composition of the blocks. The interviewing was done by Dr. Stuckert's assistants, for the most part over the period 1967-1969. Where possible, these estimates were checked against estimates by other people and against later census data (on the assumption that the percentage of blacks increased with the passage of time). Interviewees were generally not asked about a block's racial composition before 1960, since the 1960 census showed most of the blocks previously involved in boundary changes to have been all-white. Thus, estimates were primarily relied on for the period from 1962 to 1968. The information was not otherwise available.

Defendants do not object to the data based on interviews as hearsay, ⁵ but they argue that this evidence was so unreliable that it should have been given no credence. Dr. Stuckert testified that this was a "standard procedure in many kinds of social scientific research" whenever there is no other way to obtain the data, and at oral argument in this court counsel for defendants was unable to suggest any better procedure for obtaining the necessary information. The evidence was not so unreliable that the district judge abused his discretion in receiving it and considering it. ⁶

The District Court further found that "the Board's consistent response (to overcrowding) was the restriction or 'compression' of boundary lines, often accompanied by an expansion of facility capacity through such techniques as the building of additions and the utilization of substandard classrooms," and that this had the effect of keeping the concentrated black student population from spreading to the rest of the city and "increased the concentration of black pupils in Central City schools and the degree of racial imbalance in the system as a whole." 408 F.Supp. at 784. The court also found that

"(t)he disproportionate use of substandard classrooms in the black schools resulted in concentrating black students at times when the use of facilities at nearby white schools would...