The opinion of the court was delivered by: WRIGHT
This action by nine parents of white children at Gordon Junior High School asserts that a recent boundary decision by the Board of Education of the District of Columbia violates this court's order of June 19, 1967 in Hobson v. Hansen, D.D.C., 269 F. Supp. 401, which permanently enjoined discrimination on the basis of racial or economic status in the operation of the District of Columbia public school system. By order of September 15, 1970, these parents were permitted to intervene in the Hobson case to argue their motion for further enforcement of the 1967 decree.
The specific act of the Board of Education challenged by intervenors relates to an amendment to the so-called "cluster plan" which the Board adopted for eight of the 30 junior high schools in the District of Columbia. The cluster plan permits a complete sixth grade graduating class to matriculate in one junior high school rather than have that graduating class dispersed into two or more junior high schools whose boundaries cut through the area served by the elementary school. The cluster plan, as recommended by the Acting Superintendent, proposed that Horace Mann and Phoebe Hearst Elementary Schools be placed in the Gordon Junior High School cluster. In adopting the cluster plan, however, the school board amended it so as to reverse this particular recommendation and transfer both Mann and Hearst Elementary Schools from the Gordon to the Alice Deal Junior High School cluster. It is this amendment which intervenors seek to enjoin the Board and the Superintendent of Schools from effecting.
By its order of June 19, 1967, this court enjoined defendants from discriminating against poor and black pupils and required that they file in the record a plan of pupil assignment complying with the court's decree. On January 2, 1968, defendants filed a report in compliance with this directive, setting forth their intent to adopt redrawn junior and senior high school boundaries which "will not only increase socio-economic and racial integration but will also achieve maximum use of school buildings and insure an equitable distribution of staff." These same criteria were again listed by the president of the school board, under deposition by defendants, as being "generally used" in establishing boundaries. Nonetheless, the record shows that the objective effect of the school board's cluster amendment was -- and that the Board was aware that the effect of the amendment would be -- to move children from an undercrowded to an overcrowded school; to move white children from a school perilously clinging to its integrated status to an already whiter school; and to move relatively wealthier children, at the behest of their parents, from a school with a lower socio-economic standing to one with a higher standing.
In this connection, intervenors cite this court to its own notation in 1967 that the southern half of the area in the District west of Rock Creek Park was "Washington's most thoroughly integrated area, both residentially and in school enrollments." This is the area of Gordon Junior High School, which was at the time the only junior high school in the "integrated" 33 to 67 per cent range of racial division. 269 F. Supp. at 440, 452. Intervenors are parents whose children attend Gordon and who are concerned to preserve its unique possibilities for providing an integrated education. Intervenors state that the undercrowded condition of Gordon, exacerbated by the transfer of Mann and Hearst to the Deal cluster, will undoubtedly lead to pupil transfers to Gordon from elsewhere, as was the case a year ago. Except for Gordon and Deal, no junior high school in the District has any substantial white enrollment, and transfers into undercapacity Gordon will therefore have to come from predominantly black junior high schools. Intervenors have argued that there is a tipping point in the life of an integrated school, past which changes in the racial composition of the school intensify and "snowball." While they admit that the integrated status of Gordon is in jeopardy primarily because of the voluntary exodus of white children from the District of Columbia public school system,
intervenors ask this court to prevent and undo any affirmative action on the part of the Board itself which furthers the dis-integration of Gordon and brings it perilously close to the tipping point.
While admitting the cluster plan amendment will have some adverse effect upon its goals of reducing crowding and maximizing integration, the Board claims that the "deviation from its boundary criteria is only" de minimis. According to defendants, as of October 22, 1970, Gordon is at 85 per cent of capacity and Deal is at 114 per cent of capacity. Had the pupils from Hearst and Mann attended Gordon instead of Deal, Gordon would be at 87 per cent of capacity and Deal would be at 113 per cent of capacity. Had the 18 white and three black pupils from Hearst and Mann attended Gordon instead of Deal, the number of whites at Gordon would be raised from 85 to 103, an increase of 21 per cent, and the enrollment in the seventh grade of Gordon on October 22, 1970 would be 35 per cent white instead of 31 per cent white as it now is.
In support of their contention that these objective effects of the boundary decision are de minimis, defendants stress the context of this decision. Defendants first state that on October 16, 1969, the enrollment in the seventh grade at Gordon was 67 per cent white, while approximately a year later, on October 22, 1970, the enrollment in the seventh grade at Gordon is 31 per cent white. In view of the 32 per cent exodus of white students from Gordon, which is admittedly beyond their control, defendants argue that the extra four per cent loss caused by their boundary decision is relatively minor. Defendants also state that there were countervailing justifications for their decision, namely that Deal was closer to the pupils' homes and that some of the pupils had older siblings already attending Deal. They further assert, from their experience with busing of pupils from overcrowded schools, that parents, be they black or white, are willing to tolerate some overcrowding for the sake of convenience of transportation or preservation of family routine, particularly in the absence of any evidence that some overcrowding damages the educational offering. Defendants' position is that the Board of Education has demonstrated a valid purpose in clustering Hearst and Mann Elementary Schools with Deal Junior High School and that the burden of proof now rests with intervenors to show that the Board of Education was motivated by a segregatory purpose.
Without conceding that the segregatory effect of defendants' action is de minimis, intervenors have sought to meet defendants on the issue of segregatory intent. Although the analysis of the objective results of the Board's decision reveals only a relatively small segregatory effect, the mere fact that the Board made such a decision -- a decision which admittedly went counter to its own established criteria for boundary decisions -- is itself suggestive, though not determinative, of such intent. Bearing this in mind, the court will now turn its attention to the other evidence offered by intervenors in their attempt to establish the Board's segregatory intent.
Intervenors urge the court to remember that the Gordon/Deal area of Washington has a history of segregatory intent. They cite to a portion of the 1967 opinion which banned the use of "optional zones," one of which was in the Gordon/Deal area:
"* * * One other optional zone eased the withdrawal of students from an integrated junior high (Gordon) into the city's one predominantly white junior high school, Deal. * * Beginning back in the 1940's when both were Division I white high schools, an optional zone lay between Wilson and Western Senior Highs. At that time Deal fed into Wilson, Gordon into Western; these are today's arrangements also. The Wilson-Western optional zone until 1963 fell entirely within Gordon's province. Parents in the zone who preferred Wilson High School complained to Superintendent Hansen about the junior high assignment to Gordon. Ostensibly their reasoning was that their children suffered the awkwardness of having to acquire wholly new classmates when they graduated from Gordon into Wilson, and that families were inconvenienced by having children simultaneously attending Gordon and Wilson, at opposite directions from the zone itself. In 1963 the Superintendent, in response to these complaints, converted the zone from compulsory Gordon to Gordon-Deal optional territory. Two years later, admittedly because a civil rights group publicly argued that the zone parents were principally seeking a white school, the Superintendent changed directions, not only returning the junior high optional zone to the Gordon district, but merging the senior high zone into the exclusively Western district.
"Although, the Superintendent testified, the 1963 change was an 'unwise decision because of the racial overtones,' 'The racial overtones,' he said, 'are interjected into this by others.' * * * The zone parents' pre-1963 professed non-racial grievances do, however, seem disingenuous, since the inconvenience they cited they had invited upon themselves by choosing Wilson rather than Western High School for their older children. Further, that the Superintendent granted such relief upon the civil rights group's protest evidently reflected his concession that one apparent intent of the zone parents was segregatory. Accordingly, the court finds that the underlying motive of at least some of the zone parents, not unappreciated by the Superintendent, lay in their preference for the greater white enrollment at Deal and Wilson."