The opinion of the court was delivered by: WRIGHT
On May 19, 1970, Julius W. Hobson, an original plaintiff in the class action which led to this court's prior judgment and decree of June 19, 1967, 269 F. Supp. 401, affirmed, sub nom. Smuck v. Hobson, 132 U.S. App. D.C. 372, 408 F.2d 175 (1969) (en banc), filed an amended motion for both further relief and enforcement of the decree. Under the relief requested the per-pupil expenditures from the regular District of Columbia budget at each elementary school would not be allowed to deviate by more than five per cent from the average per-pupil expenditure for all elementary schools in the system; the five per cent variation might be exceeded only for adequate justification, which would be defined to include provision of compensatory education for educationally deprived pupils in accordance with the 1967 decision, or provision for special educational services for the mentally retarded or physically handicapped. To understand the meaning of plaintiffs' motion for further relief and enforcement, it is necessary briefly to review the beginnings of this long litigation.
In 1967 the basic question presented to the court was whether the defendants, the Superintendent of Schools and the members of the Board of Education, in the operation of the public school system here, were unconstitutionally depriving the District's Negro and poor public school children of their right to equal educational opportunity with the District's white and more affluent public school children. 269 F. Supp. at 406. The court concluded that they were, and its decree permanently enjoined the District of Columbia school board from discriminating on the basis of racial or economic status in the operation of the public school system. 269 F. Supp. at 517.
This decree was based in part upon the court's finding of a systematic discrimination favoring the west of Rock Creek Park schools in the distribution of District educational resources -- in the age and condition of school buildings, in school congestion, in quality of faculty and of textbooks, in curricula and special programs such as kindergarten, and lastly in per-pupil expenditures. With reference to these documented inequalities, the court held:
"* * * However the Supreme Court ultimately decides the question of a school board's duty to avoid pupil-assignment policies which lead to de facto segregation by race and class, it should be clear that if whites and Negroes, or rich and poor, are to be consigned to separate schools, pursuant to whatever policy, the minimum the Constitution will require and guarantee is that for their objectively measurable aspects these schools be run on the basis of real equality, at least unless any inequalities are adequately justified."
"The constitutional principle from which this modern separate-but-equal rule draws its sustenance is, of course, equal protection. Orthodox equal protection doctrine can be encapsulated in a single rule: government action which without justification imposes unequal burdens or awards unequal benefits is unconstitutional. The complaint that analytically no violation of equal protection vests unless the inequalities stem from a deliberately discriminatory plan is simply false. Whatever the law was once, it is a testament to our maturing concept of equality that, with the help of Supreme Court decisions in the last decade, we now firmly recognize that the arbitrary quality of thoughtlessness can be as disastrous and unfair to private rights and the public interest as the perversity of a willful scheme.
"Theoretically, therefore, purely irrational inequalities even between two schools in a culturally homogeneous, uniformly white suburb, would raise a real constitutional question. But in cases not involving Negroes or the poor, courts will hesitate to enforce the separate-but-equal rule rigorously. Through use of a generous de minimis rule or of a relaxed justification doctrine, or simply in the name of institutional comity, courts will tolerate a high degree of inequality-producing play, and delay, in the joints of the educational system. But the law is too deeply committed to the real, not merely theoretical (and present, not deferred) equality of the Negro's educational experience to compromise its diligence for any of these reasons when cases raise the rights of the Negro poor. * * *"
Id. at 497.
In its 1967 decree, the court attacked de jure segregation in the District directly, ordering the track system and optional attendance zones abolished and calling for integration of school faculties. The court held further that perpupil expenditure is a measure which summarizes most other relevant distributions of educational resources. But on the assumption that compliance with other items of the 1967 decree would have the secondary effect of equalizing overall resource distribution, the court deferred any more specific remedy for the inequality in per-pupil expenditures. The thrust of plaintiffs' 1970 amended motion for further relief and enforcement was that this hoped for secondary effect of the original decree has not occurred. Plaintiffs returned to the court asking for further relief in view of the fact that the spread in total expenditures per pupil at various District elementary schools had increased by over 100 per cent since 1964, the last year for which complete figures were available at the time of the original litigation.
Plaintiffs requested a more specific remedy to alleviate these inequalities.
After a year of discovery and argument by memoranda,
the record now before the court indicates that a striking differential in per-pupil expenditures for teachers' salaries and benefits
exists between schools east and west of the Park and that the differential is greater in fiscal 1971 than it was in fiscal 1970. The area west of the Park,
where despite voluntary busing the public school population is today 74 per cent white, is decidedly favored over the rest of the city where the school population is 98 per cent black, and is especially favored over Anacostia, one of the most poor and black sections of the city.
The following tables show the extent of existing inequities by comparison of pupil-teacher ratios, average cost per teacher, and average teacher cost per child for both fiscal 1970 and fiscal 1971.
DIFFERENCES BETWEEN WEST OF THE PARK ELEMENTARY
SCHOOLS AND SCHOOLS IN THE REMAINDER OF THE CITY
(excluding special schools)
West of Park Remainder West of Park
of City Advantage
Pupil-teacher ratio 21.4/1 22.9/1 7.0% smaller
Average teacher cost $11,734 $10,167 15.4% greater
per pupil $552 $444 24.3% greater
Pupil-teacher ratio 18.1/1 20.9/1 15.5% smaller
Average teacher cost $12,118 $11,048 9.7% greater
per pupil $669 $528 26.7% greater
DIFFERENCES BETWEEN WEST OF THE PARK ELEMENTARY
SCHOOLS AND ANACOSTIA ELEMENTARY SCHOOLS
West of Park Anacostia West of Park