Michelle OLIVER et al., Plaintiffs-Appellees, v. KALAMAZOO BOARD OF EDUCATION et al., Defendants-Appellees, State Board of Education et al., Defendants-Appellants, 640 F.2d 782

BAILEY BROWN, Circuit Judge. This school desegregation case involving the city schools of Kalamazoo, Michigan began in August, 1971, when this action was brought by the National Association for the Advancement of Colored People and certain students in the system. The Kalamazoo Board of Education and its individual members (referred to in the record and herein collectively as KBE) were named as defendants.

Early in the litigation, the Kalamazoo Education Association and the Michigan Education Association, teacher organizations, intervened first as amici and then as parties plaintiff, and the Michigan State Board of Education and its Superintendent of Public Instruction (referred to in the record and herein collectively as SBE) were joined as defendants. The district judge, Honorable Noel P. Fox, promptly entered a temporary injunction placing a desegregation plan in effect immediately.

This injunction was made final two years later in 1973, KBE and SBE being held jointly liable with respect to the unconstitutional racial segregation found to have existed in the school system, and both decrees have been affirmed on appeal. The present round of litigation began in 1977 when plaintiffs sought additional and ancillary relief. The district court ordered KBE to file a progress report, which was done, and then the district court appointed experts to study the report and the school system and to make recommendations to it.

In November, 1978 and in January, 1979, the district court entered three orders requiring SBE to pay the accrued salaries of the staff of the experts, and these orders are the subject of two of the instant appeals. (Nos. 79-1042 and 79-1101). In the fall of 1979, the report and recommendations of the experts having been filed, plaintiffs moved the district court in behalf of minority students to order implementation of the recommendations, which the court did after a hearing in November.

The district court granted no relief with respect to some racial imbalance found by the report to exist in some schools and took no action with respect to the racial composition of the teachers, administrators, and supporting staff, but ordered to be implemented all of the recommendations as to ancillary programs, both cognitive and behavioral.

This order is the subject of another appeal by SBE that is before this panel (No. 79-1723) and is the subject of an appeal by KBE (No. 80-1006) heard by another panel (Engel, Brown and Peck, JJ.) Also, in the fall of 1979, when it appeared that KBE would not be able to obtain continued financing for 1979-1980 from the federal government for certain of its ongoing ancillary cognitive and behavioral programs for minority students under the Emergency School Aid Act, 20 U.S.C. §§ 1601 et seq., (referred to in the record and herein as ESAA), it moved the district court to require SBE to make up this deficit or to reimburse it.

The district court, at the conclusion of the aforementioned November, 1979, hearing, likewise ordered SBE to pay such amount to KBE, and this order is also a subject of SBE’s appeal in No. 79-1723 before this panel. Although we have just set out a brief overview of this litigation in order to indicate in a general way the issues on the appeals before us, it is necessary, in dealing with the issues presented, to develop the history of this litigation in considerable detail.

I Prior to 1971, there had been considerable activity by citizens of Kalamazoo, particularly the Citizens Racial Balance Committee, to desegregate the Kalamazoo public schools. In the spring of that year, using information as to pupil identity, race, location, and grade supplied to it by KBE, the Illinois Institute of Technology, by employing computers, devised a desegregation plan. This plan was adopted by KBE on May 7, 1971.

However, shortly thereafter, two of the members of KBE, as a result of an intervening election, were replaced, and in July, 1971, the action of KBE approving the plan was rescinded by a divided vote, and the former school attendance boundaries were reestablished but with voluntary open enrollment. This action was then filed on August 12, 1971. On August 12, 1971, the district court entered a temporary restraining order, restraining KBE from implementing the voluntary open enrollment plan.

Then, on August 20, 1971, the district court, after a hearing, issued a temporary injunction, placing the plan that had been adopted by KBE on May 7, 1971 immediately in effect, and the plan was thereby made applicable to the 1971-72 school year. 346 F.Supp. 766 (W.D.Mich.1971). In so doing the district court found that, according to the 1970 school census, the school system was 17.6% black, that five of the elementary schools were majority black, that the other schools in the system, twenty-four, were majority white, and that the system was unconstitutionally segregated.

Under this plan, some of the elementary schools (grades K-6) became schools with grades K-3 and others became schools with grades K, 4-6. The plan called for considerable busing. This court affirmed the granting of the temporary injunction on August 30, 1971, 448 F.2d 635 (6th Cir. 1971), holding that the district court’s issuance of the temporary injunction was not. contrary to a rule of equity or an improvident exercise of judicial discretion, but it expressly refrained from approving all of the language and holdings of the district judge.

In 1973, the district court held a plenary hearing, and determined again that the Kalamazoo schools had been racially segregated in 1971, that the segregation was de jure since it resulted from policies and practices carried out by KBE to accomplish segregation or with knowledge that such would bring about segregation, and therefore, on October 4, 1973, it reaffirmed the liability of KBE for the segregation. 368 F.Supp. 143 (W.D.Mich.1973).

The district court also held that SBE was liable for such segregation on two grounds: (1) that segregated schools had resulted from segregated neighborhoods which were in part a result of the enforcement of racial covenants by Michigan courts and (2) that under the Michigan constitution and statutes, SBE had the authority and the duty to supervise and regulate local school boards and activities, including the duty to prevent unconstitutional segregation, and SBE had failed to exercise this authority and carry out this duty.

In its order of October 4, 1973, the district court made permanent the existing temporary injunction by which the plan that had been adopted by KBE on May 7, 1971 had been placed in effect on August 20,1971. The court retained jurisdiction to supervise implementation of the plan, and the order provided that any party moving for alteration or amendment of the plan would have the burden of justifying the changes. SBE was required to render assistance to KBE in the execution of the court’s order.

KBE was ordered to apply to the federal government for such financial assistance as might be available to aid KBE in executing the order. SBE was ordered to apply to the Michigan legislature for financial assistance for KBE and to aid KBE in making its federal applications and to join with KBE in its applications to the Michigan legislature for aid. During the course of the proceedings leading up to the plenary hearing, counsel for KBE, on August 2, 1972, moved the district judge to recuse himself.

The affidavit in support of the motion charged bias on the part of the judge in favor of plaintiffs, its counsel, and their position and against KBE, its counsel and its position. More particularly, the affidavit charged, inter alia, that the judge had prejudged the issues and had exhibited a difference in his treatment of counsel and witnesses on plaintiffs’ side and on KBE’s side. This motion was denied, and the denial was a subject of the appeal of the court’s entry of the permanent injunction.

On the appeal by KBE and SBE of the granting of the permanent injunction, this court, by a divided panel, affirmed. 508 F.2d 178 (6th Cir. 1974), cert. denied 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975). The majority held that the court had applied a correct legal standard for determining liability, that is, that liability for segregation in schools is established if it is shown that there was action or inaction by the public officials, that there was a segregative purpose, and that such results in increased or continued segregation in the public schools.

The majority also found that the factual findings of the district judge were adequately supported by the record. The court held that SBE was properly found to be liable because it had the authority and duty to act to prevent unconstitutional segregation and had not done so. The majority likewise held that the affidavit as to bias, even if taken as true, was insufficient under 28 U.S.C. § 144 since the bias necessary for recusal must be personal bias.

The dissenting judge was of the view that the district judge had acted too hastily in initially implementing the desegregation plan, had made errors of law with respect to liability, and that the affidavit sufficiently alleged the kind of bias that requires recusal. The next activity of consequence to the present round of litigation took place in 1977.

On motion of plaintiffs, on August 15, 1977, the district court ordered KBE to file a full report within twenty-one days on the implementation of its desegregation order and to give details on the progress in “eliminating the effects of prior segregation” and on the efforts that KBE deemed necessary to “cure the condition found to offend the Constitution.” KBE was also ordered to consider the “educational components examined and upheld by the United States Supreme Court in Milliken v. Bradley, [97 S.Ct. 2749, 53 L.Ed.2d 745] 45 U.S. L.W. 4873).” KBE filed the report as directed and within the short time allowed.

On motion of plaintiffs, on December 7, 1977, the district court appointed Dr. Wilbur J. Cohen, Dean of the School of Education at the University of Michigan and Dr. Robert L. Green, Dean of the College of Urban Development, Michigan State University, as the court’s experts to evaluate the report and make recommendations, and the order authorized them to employ staff, and it provided that fees and expenses incurred in preparation of such report would be assessed as costs to be paid by SBE.

The district court then entered orders on November 27, 1978, January 10, 1979 and January 23, 1979 directing SBE to pay specific amounts to cover salaries of the staff aiding Green and Cohen, and the appeals by SBE from these orders are now before this court (Nos. 79-1042 and 79-1101) for decision. II Plaintiffs-appellees contended in a motion to dismiss these appeals that these orders requiring SBE to pay the accrued salaries of the Green-Cohen staff are interlocutory and not appealable.

We are, however, of the opinion that these orders are in the nature of an injunction and are appeal-able under 28 U.S.C. § 1292(a)(1). Reed v. Cleveland Board of Education, 581 F.2d 570 (6th Cir. 1978). SBE contends that the district court had no authority to issue the orders requiring it to pay the salaries of the Green-Cohen staff because the staff’s mission was not in any wise to determine whether KBE had complied with the desegregation orders that had been entered but rather was to determine whether additional and ancillary cognitive and behavioral programs were required.

The short answer to this argument is that, as will be seen upon consideration of the district court’s order requiring KBE to file the above outlined report, one of the purposes of requiring the report was to determine whether KBE had complied with the desegregation orders. SBE also argues that, in any event, the main purpose of requiring KBE to file the report and in appointing experts to study the report and to make recommendations was to determine whether ancillary cognitive and behavioral programs should be ordered by the court.

SBE further argues that once the desegregation ordered by the court had been accomplished, the district court was without power to order implementation of such ancillary programs, relying on Pasadena City Board of Education et al. v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976).

It is true that the Court there held that if, under a court-ordered desegregation plan, a school system reaches a state of constitutional grace with respect to desegregation, it is not required to make changes in student assignments where there has been a subsequent change in the racial mix in the schools caused by factors for which the school board could not be considered responsible. 427 U.S. at 434, 96 S.Ct. at 2703.

Pasadena did not, however, hold that a district court did not have the authority and duty to order such ancillary programs if such were found to be necessary to cure the effects on the black children of the prior unconstitutional school segregation. Moreover, while we will deal with this question hereafter in more detail in considering other issues, Milliken v.

Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Milliken II), clearly held that a district court has the authority to order the implementation of such ancillary programs if it is shown that such are necessary to cure the effects of prior unconstitutional school segregation. Accordingly, we conclude that the district cout acted within its authority and did not abuse its discretion in ordering SBE to pay the salaries of the Green-Cohen staff and that these orders of the district court must therefore be affirmed. Ill On August 15, 1979 the Green-Cohen report was filed.

The report, including appendix, consists of 453 pages. There are twenty-eight pages of conclusions,

summary and recommendations. On September 18, 1979, KBE filed a motion to join the state Treasurer as a party defendant (this was done) and to require state funding of the ESAA programs for minority students for 1979-80 since such funding was no longer available from the federal government and KBE had been unsuccessful in persuading the Michigan legislature to appropriate the funds. On September 20, plaintiffs filed a motion to require the implementation of the recommendations of the Green-Cohen report “in toto.” The district court held concurrent hearings in late October and early November.

It then ordered on November 30, 1979 that KBE continue the ESAA programs and that the State of Michigan pay $651,289.54 to KBE to replace or reimburse funding for ESAA programs for 1979-80 that was no longer available from the federal government. It also ordered that all recommendations of the Green-Cohen report must be implemented by September 1, 1980, except those having to do with some racial imbalance in the schools and those having to do with the racial composition of the teachers, administrators and supporting staff.

It further ordered KBE to devise specific programs to implement these ancillary recommendations, both cognitive and behavioral, of the Green-Cohen report by February 15, 1980. It still further ordered KBE: “In drafting these programs, District officials are to consult with Dr. Robert Green and his staff and are to abide by any of their suggestions.” Lastly, the order provided: “After drafting these programs, the District is to submit them to the court.

A hearing will be held at a later date, at which the remedies and their expected costs will be examined; at that time I will determine who should bear the costs of these programs.” As has been stated, SBE has appealed the order requiring the State of Michigan to pay to KBE $651,289.54 to replace ESAA funds and has appealed the order requiring the implementation of the Green-Cohen recommendations (No. 79-1723). As has also been stated, KBE has appealed the order requiring the implementation of the Green-Cohen recommendations (No. 80-1006), which appeal was heard by another panel.

Before discussing the instant appeal by SBE in No. 79-1723, we will describe briefly later developments in the district court. As it was directed to do by the district court, KBE filed with the court on February 15, 1980 a specific program-plan to carry out the Green-Cohen recommendations. This document consists of eighty-eight pages, and the program has a projected three-year cost of eight and one-half million dollars. On February 28, 1980, the district court scheduled a hearing to begin on March 19 to consider the KBE plan to carry out the Green-Cohen recommendations.

SBE sought a continuance of such hearing on the ground that the district court had no jurisdiction since SBE had appealed the court’s November 30, 1979 order requiring the implementation of the Green-Cohen recommendations, that the appeal had been argued in February, 1980, and that the appeal had been taken under advisement by this court. The district court denied the continuance, stating that it would hear and determine the jurisdictional question at the inception of the hearing on the propriety of the plan submitted by KBE. This meant, of course, that SBE would have to continue to prepare for the hearing.

On application of SBE, this court, on March 17, 1980, ordered that the proceedings contemplated by the district court be held in abeyance since, in view of SBE’s pending appeal, the district court had no jurisdiction. Hogg v. United States, 411 F.2d 578 (6th Cir. 1969). In the same order, this court stayed the order of the district court of November 30, 1979 requiring payment by the state of funds to replace ESAA funds and requiring implementation of the Green-Cohen recommendations.

On March 10, 1980, apparently acting sua sponte and after KBE had filed its plan of programs to implement the Green-Cohen recommendations as was required by the district court, the district court in an order determined that its order of November 30, 1979 was erroneous in one respect. It determined that it had improperly delegated its judicial authority in ordering KBE: “In drafting these programs, the District is to consult with Dr. Green and his staff and is to abide by any of their suggestions.” The order of November 30, 1979 was in effect amended to provide that KBE should “consult with Dr.

Green and his staff on how to implement the recommendations of the Green-Cohen report.” The plan had, of course, already been prepared weeks before and filed by KBE with the court. IV SBE contends that the district court had no jurisdiction to hold the hearings in late October and early November, 1979 and to issue its order on November 30, 1979 with respect to continuance of and payment for the ESAA programs and with respect to implementation of the Green-Cohen recommendations because SBE had appealed the prior orders of the district court requiring it to pay the accrued salaries of the Green-Cohen staff.

We conclude that, on the contrary, such appeal of the orders requiring SBE to pay the accrued salaries of the experts’ staff did not remove jurisdiction from the district court to make the determinations with respect to the ESAA programs and the Green-Cohen recommendations because such payment orders did not finally determine the entire action and the issues presented at the November 30,1979 hearing on ESAA and Green-Cohen were not involved in the prior appeals. 9 Moore’s Federal Practice § 203.11.

With respect to the payment orders, the only issue on appeal was whether the district court abused its discretion in requiring SBE to pay the accrued salaries of the Green-Cohen staff who were investigating and reporting to the court as to whether KBE had complied with the desegregation orders and as to the progress of minority students. This was not the issue considered by the district court at its hearing on the constitutional necessity of continuing the ESAA programs and implementing the Green-Cohen recommendations.

We therefore conclude that the district court retained jurisdiction to hold such hearings and to issue the order requiring continuance of the ESAA program to be funded by the state and requiring implementation of the Green-Cohen recommendations.

V The propriety of the district court’s requiring the continuance of the ESAA programs and requiring the State of Michigan to pay $651,289.54 to KBE to reimburse it for the costs of continuing such programs that had been funded under ESAA and the propriety of its requiring the implementation of the ancillary cognitive and behavioral recommendations of the Green-Cohen report present one underlying and overriding common issue.

This issue is: does the record support the conclusion that black pupils in the Kalamazoo school system would be denied equal protection unless such ESAA programs were continued and such Green-Cohen recommendations were implemented?

It is true, as will be seen, that the programs that had been supported by ESAA funds and the programs indicated by the Green-Cohen recommendations are somewhat different in their approach and thrust in seeking to enhance black achievement in the school system, but the district court, as also will be seen, had no authority to order the continuance of the ESAA program or the implementation of the Green-Cohen recommendations unless such was constitutionally required. There are, of course, other issues.

One such issue is whether, assuming the district court was correct in determining that the continuation of the ESAA program was constitutionally necessary, it was proper for the district court to place the entire burden of such program on all of the taxpayers of the State of Michigan rather than to place the entire or at least part of the burden directly on the taxpayers of Kalamazoo.

Another issue is whether, assuming the record supports the constitutional necessity for some ancillary cognitive and behavioral programs to aid minority students, it has been shown that either of these programs is reasonably calculated to be effective. VI As before indicated, SBE contends that the district court had no authority to order the continuance of the ESAA programs and the implementation of the Green-Cohen recommendations.

In so contending, SBE seems to argue that, under the Pasadena decision, supra, once the Kalamazoo system was constitutionally desegregated, no further remedy could constitutionally be required. However, Pasadena, as we have before stated, does not so hold. Moreover, as we also before stated, in Milliken v.

Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Milliken II), the Court squarely held that, in addition to ordering desegregation of a school system, the district court may properly order ancillary programs to enhance the achievement of black children if such is necessary to cure the effect on the black children of unconstitutional school segregation. It is true that, in Milliken, the ancillary programs approved by the Court had been proposed by the Detroit School Board itself.

It is also true that, in Milliken, the programs were found to be necessary and were implemented at the inception of the desegregation of the Detroit system. However, there is no indication in the Milliken opinion that the fact that the ancillary program had been proposed by the local school board was necessary to the decision. Further, there is no indication in the opinion that such ancillary programs may only be required at the time the system is desegregated.

In Milliken II, the Court stated (433 U.S. at 281-282, 97 S.Ct. at 2757): The well-settled principle that the nature and scope of the remedy are to be determined by the violation means simply that federal-court decrees must directly address and relate to the constitutional violation itself. Because of this inherent limitation upon federal judicial authority, federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation, see Pasadena Bd. of Education v.

Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976) or if they are imposed upon governmental units that were neither involved in nor affected by the constitutional violation, as in Milliken I, supra. Hills v. Gautreaux, 425 U.S. 284, 292-296, 96 S.Ct. 1538, 1543, 47 L.Ed.2d 792 (1976).

But where, as here, a constitutional violation has been found, the remedy does not “exceed” the violation if the remedy is tailored to cure the “ ‘condition that offends the Constitution.’ ” Milliken I, supra [418 U.S. 717] at 738, 94 S.Ct. 3112 [at 3124] 41 L.Ed.2d 1069. (Emphasis supplied.) The “condition” offending the Constitution is Detroit’s de jure segregated school system, which was so pervasively and persistently segregated that the District Court found that the need for the educational components flowed directly from constitutional violations by both state and local officials.

These specific educational remedies, although normally left to the discretion of the elected school board and professional educators, were deemed necessary to restore the victims of discriminatory conduct to the position they would have enjoyed in terms of education had these four components been provided in a nondiscriminatory manner in a school system free from pervasive de jure racial segregation.

We therefore conclude that the district court had the constitutional authority to order the continuance of the ESAA program and the implementation of the Green-Cohen recommendations if such were shown to be necessary and were tailored to cure the effects of the unconstitutional condition that had been found by the court. VII It is necessary now to set out in some detail the Green-Cohen report and recommendations, as well as the testimony of the witnesses, particularly that of Dr.

Green, before discussing the November 30, 1979 opinion and order of the court in which it determined that equal protection of the laws required that the ESAA program be continued and the Green-Cohen ancillary recommendations, both cognitive and behavioral, be implemented. With respect to the Green-Cohen report, it should be said at the outset that there is every reason to believe that those who were responsible for the report were sensitive to the claims of plaintiffs and would not be likely to understate the basis for such claims. Dr.

Green, as he testified, had been a witness for plaintiffs in this case at the time that the temporary and final injunctions were obtained and had been a witness for other plaintiffs in twelve to fifteen desegregation eases throughout the country. While it appears that Dr. Green and Dr. Cohen conferred about selection of staff, twenty of them came from the school with which Dr. Green is connected (Michigan State) and two came from the school with which Dr. Cohen is connected (University of Michigan). The amount of input Dr. Cohen had during the preparation of the Green-Cohen report is not clear, but Dr.

Green did affirm that Dr. Cohen, who did not testify, had approved it. We mention these facts because, as will be seen, while fault was found with the way in which KBE had operated the school system from the point of view of the black minority since desegregation, there was also, the report found, much to be applauded.

While the district court granted no relief in the areas that are referred to in the Green-Cohen report as areas involving “Primary Relief,” that is, (1) distribution of black students among buildings and (2) the racial composition of teachers, administrators, and supporting staff and the use and treatment of minority teachers, administrators and supporting staff, and while the district court’s November 30, 1979 opinion expressly states that the issues involving such “primary relief” were not before the court, we believe that it is necessary to set out the facts in these areas as a background for considering other areas that were addressed by the district court in which extensive relief was granted.

A In 1970, the year before the initial desegregation order, Kalamazoo had a population of 85,661 of which 8,500 were black and 1580 were Hispanics. Seventy-five percent of these black people lived in census tracts two and three, one of which was 79.8% and the other of which was 58.7% black. (Green-Cohen report at 2) Just prior to desegregation, there were 2541 (15.9%) black and 13,412 (84.1%) white and other students in the system.

There were three majority black elementary schools—Lincoln (93.7%), Northglade (82.7%), and Woodword (57.3%)—all located in census tracts two and three. (Green-Cohen report at 3) At that time twenty-six other elementary schools, all of the junior high schools (five) and all of the senior high schools (two) were majority white. There were thirteen schools with less than a one percent black population (Green-Cohen report at 3). With desegregation, approximately 60% of the student population has been provided with bus transportation for desegregation purposes. (KBE report at 212) The Green-Cohen report contains a

section entitled “An Analysis of Equity in the Distribution of Students.” To the extent that the black population in a school varies more than plus or minus 15% from the percentage of black students in the system as a whole, according to the report, such represents a failure to obtain equity in distribution and the school is racially identifiable. (Green-Cohen report at 29) As to the elementary level, Green-Cohen reports that just prior to desegregation, twenty buildings deviated more than ± 15 percent and thus were racially identifiable, four being identifiably black and sixteen being identifiably white.

Upon desegregation in 1971, only one elementary was so racially identifiable.

By 1978-79 of the twenty-three existing elementary schools, three had been identifiably black and one identifiably white for one or more years. (Green-Cohen report at 30) The report also points out that more school buildings could be considered to be racially identifiable if the applicable test is dropped to ± 10% but that the inclusion of Hispanics, American Indians and Asians as minorities would not have a substantial effect on the identifiability of school buildings. (Green-Cohen report at 35) Even before desegregation, according to the Green-Cohen report, none of the five junior high buildings was racially identifiable applying the ± 15% test, but by 1978-79, in spite of desegregation, one such building was racially identifiable and three other buildings would be identifiable if a ± 5% test were applied. (Green-Cohen report at 38) Moreover, prior to desegregation, neither of the two senior highs were racially identifiable, and in 1978-79 the racial composition of the high schools continues, according to Green-Cohen, “to substantially approximate the percentage of Black senior high students district-wide.” (Green-Cohen at 39).

Under its “Conclusions Regarding Primary Relief—Racial Distribution of Students,” Green-Cohen states only this at 289: The Kalamazoo School District has made substantial progress in meeting the requirement of Judge Fox’s order to desegregate all school buildings. While in 1970-71 there were twenty racially identifiable elementary school buildings using the ± 15 percent standard, this figure dropped to one in the year in which desegregation was implemented (1971-72).

Since 1976-77, however, there has been an increase in the number of racially identifiable elementary schools; by 1978-79, there were four such schools. While no junior high schools were racially identifiable using the ± 15 percent standard prior to or at the onset of desegregation, since 1977-78 one school (Oak-wood) has been racially identifiable. The uneven distribution of Black students in the two senior high schools prior to desegregation was eliminated in 1972-73, and neither high school has been racially identifiable since implementation of the desegregation plan.

Green-Cohen does not comment on the possibility that, to the extent the school system moved away from racial balance, this might in part be a result of the increase in percentage of black students in the system since 1970-71 (15.9%) to, in 1978-79, 30.6% and of a decrease in the overall student population. (Green-Cohen at 3 and 22). In any case, it is without dispute that all black students in the Kalamazoo school system have, since 1971-1972, attended majority white schools.

B Next Green-Cohen takes up “An Analysis of Equity in Employment.” While we will quote below the part of the report styled “Conclusions Regarding Primary Relief— Staff Employment and Staff Assignment” we point out that, judged by labor market indicators, the system has accomplished equity so far as teachers and administrators are concerned (though it has not reached its own affirmative action goal) but has not accomplished equity with respect to employment of blacks in food services, clerical and maintenance positions.

Green-Cohen concludes with respect to staff employment and assignment at 290-291: Staff Employment The proportion of Blacks in the District-wide work force and within each major employee classification has increased since desegregation. According to several labor market indicators, Blacks are equitably represented in the Kalamazoo Public Schools staff except in food service, clerical, and some maintenance positions. According to the District’s affirmative action goals, Blacks are not equitably represented on the Kalamazoo Public Schools staff except in administrative and custodial positions.

The District has taken recruitment measures which were designed to increase the number of applications received from Blacks. With respect to administrator applications, a substantial number have been received from Black applicants. Although the number of Black teacher applications may be reflective of the number expected, it may not be sufficiently substantial to permit the rapid achievement of the District’s affirmative action goal.

With respect to certain noncertificated position applications, while the number of Black applications again may reflect the number expected, the number may not be sufficiently substantial to permit the elimination of Black underrepresentation in those positions or the achievement of the District’s goal. Black applicants generally have been selected in substantial numbers and, except for administrator applicants, have been selected at equitable rates as compared to White applicants.

With respect to all reasons for termination, Black employees are underrepresented among administrator terminations, but overrepresented among teacher terminations. In neither group are Blacks overrepresented among District-initiated terminations.

Staff Assignment The practice of assigning Black teachers and administrators disproportionately to identifiably Black buildings has been abolished, but this practice continues to some extent with Black noncertificated staff. c The Green-Cohen report next sets out in great detail “An Analysis of Educational Equity,” and the report’s recommendations in this area were ordered to be implemented by the district court.

C-l The first subject dealt with is that of academic course offerings, that is, whether “offerings at the elementary, junior high, and senior high levels are substantially equivalent.” (Green-Cohen report at 98) The report found no substantial variations to exist as between elementary schools nor as between junior highs as to the seventh grade (Green-Cohen report at 98-99). In the eighth grade, all required courses are offered at all five junior highs. However, the report noted that South, which is 17% black, has more electives than Oakwood (42% black) and Hillside (32% black). (Green-Cohen report at 99).

The Green-Cohen report (at 100-101) then makes the following comments as to high school course offerings, which well illustrates the strict scrutiny given this school system, and summarizes its findings as to offerings as follows (omitting the footnotes): There are two senior high schools: Loy Norrix is 23 percent Black and Central is 25 percent Black. While the percentage of Blacks in each school is about the same, there are a few variations in their offerings. For example, Loy Norrix has an Employment-Bound Youth Program and Central does not. Other variations are more subtle and may not have any significance.

For example, in the home economics area, Norrix offers a beginning clothing class and Central offers Sewing for Fun and Profit. In industrial education, Norrix offers auto body trades courses and Central offers welding trades courses, small engine repair and technical illustration. In the field of music the variations are similar—Norrix offering concert band and wind ensemble, while Central offers A band and B band. In the areas of English and social studies, some offerings are also different but comparable.

For example, Central offers Black history, Civil Rights and Responsibilities, reading improvement, and acting. Norrix offers Black literature, criminal law, grammar review, and dramatics. Manual communications (finger spelling and sign language) is offered only at Norrix. The only radio broadcasting station is at Norrix. Central students are eligible to take the radio broadcasting course at Norrix, however. In

summary, then, there are no noteworthy variations in required course areas currently offered in the elementary and secondary schools in the District. Elementary schools identifiable as Black* prior to the Court decision can, therefore, be said to currently offer courses which are substantially equivalent to courses offered at elementary schools which were formerly identifiable as nonminority.** In terms of the elective courses, however, junior high schools that have the higher percentages of Black students*** appear to be lacking courses in the language arts and creative arts areas. As Oakwood may be said to be currently identifiable as a Black school (see

Chapter II of this report), this suggests inequity in terms of some course offerings between junior high schools which are racially identifiable and those which are not. No significant variations in course offerings are apparent at the high school level. C-2 Next, under the heading “An Analysis of Educational Equity,” the Green-Cohen report takes up, with respect to junior high and high schools, the question whether blacks are over- or under-represented in classes in various course offerings.

The report proceeds on the theory that if in a particular course in a school the number of black students taking the course exceeds by 15% the number of blacks in that grade in that school, blacks are over-represented in the course and if the number is less than 15% of blacks in that grade in that school, blacks are under-represented (Green-Cohen report at 104). If blacks are over- or underrepresented in a course, such is considered to be an instance of a failure to achieve educational equity.

The report states that black students have generally been substantially over-represented in reading courses in junior highs and have been under-represented during some years in some junior high schools in varying degrees in the following courses: Creative Drama, Advanced English, Public Speaking and Speech and Drama (Green-Cohen report at 105 and 106). With respect to reading, the report summarizes at 111: In

summary, Blacks have been overrepresented in the reading courses over the recent three-year period in which course enrollments were analyzed. The placement of students in the reading course is done through diagnostic testing, and the course is designed for students reading at the fifth grade level or below. Because Black students are increasingly over-represented as they advance from grades 7 to 8 to 9, this indicates that reading programs are not effecting necessary changes in the students’ reading competency.

With respect to mathematics in junior high, the report concludes that black students are generally over-represented in non-accelerated courses (regular and individual math) and under-represented in accelerated math. (Green-Cohen report at 111-112 and 119) Blacks are properly represented in social studies in junior highs and are also properly represented in science in grades seven and eight, such being required courses, but are under-represented in ninth grade science in two schools. (Green-Cohen at 123) Blacks are greatly under-represented in junior high German, French, Latin and Spanish and are .over-represented in a course called “Introduction to Language” in one school. (Green-Cohen report at 124-125) Black students are properly represented in junior high typing but are generally over-represented in home economics and industrial arts.

Blacks were under-represented in some music courses and, at one junior high, in two art courses. (Green-Cohen report at 127-128) With respect to black under-representation in the junior high classes, the Green-Cohen report summarizes as follows at 129:

Section

Summary As Table 4-2 shows, there were increases in the percentage of non-representative classes in English, reading, math, science, music and art in the junior high schools over the three years reviewed. The changes in Black enrollment in the English, reading, and math courses are of critical importance. These data indicate that Black students were placed in lower-level courses, while White students were placed in the accelerated and/or college-oriented courses. Furthermore, over the three years, this trend became more pronounced.

Black students have seldom had the opportunity to take the more demanding courses and, consequently, the odds are that they will not be able to perform academically at the level .at which White students perform. As will be seen in the

section on Senior High School Enrollments which follows, these enrollment patterns continue and become even more apparent. With respect to senior high schools, the Green-Cohen report states that black students were over-represented for some years at Central High in Communication Skills, General English, and Public Speaking and at Loy Norrix High in “Con. Comm.,” Dramatics, Grammar Review, Mass Media, Publications and Reading Skills. In both schools, blacks were over-represented in Black Literature. (Green-Cohen report at 131-132) They were over-represented in reading courses at both high schools.

On the other hand, at Central black students were under-represented in English Literature, World Literature, Bible as Literature, Journalism, Creative Writing, College English, Debate and Forensics, Mythology and American Novel. (Green-Cohen report at 133) At Loy Norrix High blacks were likewise under-represented in the literature and writing and forensics courses but also in Newspaper, Phychology of Language, Science Fiction and Yearbook. (Green-Cohen at 134) With respect to mathematics in the high schools, Green-Cohen found that black students are over-represented in basic skill courses such as Consumer Math and are under-represented in such courses as trigo-, nometry and statistics that are for college-bound, academically-oriented pupils. (Green-Cohen report at 137) As to foreign languages in high schools, again blacks are under-represented in all courses except Spanish 1 and 2. (Green-Cohen report at 139) In the high schools, black students tended to be under-represented in such science courses as chemistry, physics, and biology and over-represented in such science courses as Applied Life Science, Earth Science, Physical Science Survey and Biological Science Survey.

However, by 1978-79, some improvement in such under-representation was noted. (Green-Cohen report at 141-142) ‘ As to social science in high schools, blacks were under-represented in World History, World Geography, World Heritage, Military History, Russia & U.S.S.R. and Sociology and were over-represented in Psychology of Self, Major Events, Consumer Economics, 20th Century Events, Society Today, Home & Family, Black History, Student Government and Student Activities. As to business courses in the high schools, black students were over-represented in some and under-represented in some.

For example, at Central blacks were over-represented in stenography but were, in such course, under-represented at Loy Norrix. In business education, as between the two high schools, the report noted that there have been “marked differences between the two high schools in the representativeness of Black- enrollments ...” (Green-Cohen report at 144-145), and this last statement also applies to music courses (Green-Cohen report at 146), but the report drew no conclusion from this difference between the high schools.

Health and Safety is required and blacks and whites are properly represented but blacks are both over- and under-represented in various art courses in the two high schools. (Green-Cohen report at 147) Black students are over-represented in some high school industrial arts courses and under-represented in others.

For example, in Loy Norrix, blacks are over-represented in Architectural Drawing 3 and 4 and Woodworking and under-represented in Architectural Drawing 1 and 2, Welding and Machine Shop. (Green-Cohen report at 148-149) The report made no particular comment on the apparently unusual fact that in 1975-76 there were no blacks in Architectural Drawing 1 and 2 while, in 1978-79, black students made up 50% of the classes in Architectural Drawing 3 and 4.

Black students are generally over-represented in high schools in Home Economics and Media. (Green-Cohen report at 150-152) The Green-Cohen report then summarizes academic course enrollments by stating that in the Kalamazoo junior and senior high schools “educational equity does not exist,” summarizing as follows at 153:

Summary of Academic Course Enrollments It is evident from the analysis of the data, both at the junior and senior high school levels, that educational equity does not exist in the Kalamazoo public schools. At the junior high school level, it was found that (1) a majority (10 out of 11) of the courses were non-representative in Black enrollments for 1978-79; (2) the number of courses which had representative Black enrollments decreased from 1975-76 to 1978-79; and

(3) Black enrollments were higher in the lower-level non-college-bound courses (e. g., reading and individual and regular math). The same findings were evident at the senior high school level. The only difference between the junior and senior high schools is that at the senior high school level, the extent of course segregation has increased. For example, 20 percent of the English courses were not representative in their Black enrollments at the junior high school level in 1978-79 (Table 4-2). At the senior high school level, this figure rose to 40 percent (Table 4r-4).

Only 7 percent of the science courses were not representative at the junior high school level in 1978-79 (Table 4-2). At the senior high school level, however, 62 percent of the science courses at Loy Norrix and 50 percent of the science courses at Central were not representative (Table 4—4). The pattern of racially disproportionate representation is consistent. Black students were never over-represented in the accelerated classes. They were never over-represented in College English classes, in select math classes, nor in advanced biology courses.

While the District has stated that students freely make their own choices of class in which they enroll, in reality, little free choice is involved. Once a student is placed in a reading class, or in a lower-track math class, this limits other “free choices,” not only at the time the decision is made, but for all subsequent school years. As will be seen, the Green-Cohen report takes the position, as does Dr.

Green in his testimony, that much of this failure to attain “educational equity” with respect to achievement in reading, English, mathematics and science and the reason why blacks are not proportionately represented in such classes is that too many blacks are placed in a slower track because errors may be made in judging the capability of black students early in their school careers, and, more importantly, blacks remain in such slower tracks because the system is not delivering effective compensatory and special education.

It is also clear, however, that they are of the opinion that the system is failing to deliver “educational equity” if blacks are not proportionately represented in the classes in these areas for any reason. In this connection, KBE argues that, in the report it is damned because blacks are not achieving on the level with whites and, at the same time, because too many of them are in compensatory education classes.

C-3 The next subject discussed in the Green-Cohen report under the general heading “An Analysis of Educational Equity” is a discussion of “Variations in Educational Offerings and Procedures.” Although there occasionally may be racially unbalanced groupings within classrooms, the report found no evidence in elementary schools of within-school classroom segregation. (Green-Cohen report at 157) We interpret this to mean that within a particular school, in assigning students to classes in, say, the same third grade arithmetic, there is no tendency to have blacks over- or under-represented in these classes.

This is also true in secondary schools, in non-tracked, regular courses. (Green-Cohen report at 157) In an effort to determine why black students are disproportionately represented in certain courses, Green-Cohen interviewed principals and counselors at the schools and summarized the conclusions from such interviews as follows at 166-167: The results of the principal and counselor interviews suggest that placement in classes is a function of prior student achievement in a subject area. An average of 58 percent of the respondents specified student “ability” as a factor underlying class assignment.

If achievement is an index of ability and placement is a function of ability, then it is not surprising that the enrollment in lower level junior high school mathematics and reading is disproportionately Black, since many Black students enter junior high school with poor achievement in reading and mathematics skills. (See MAT results cited in the

section on performance in this chapter.) A comparison of the District seventh grade placement criteria with the criteria listed in the responses given in the interviews with the sixth grade teacher-counselors indicates that both sets of criteria are in accord. The interview data show, however, that over half of these teacher respondents sometimes varied from the criteria in actual practice. Other criteria used by the teacher-counselors were student motivation and work habits.

In the interviews, the main reasons these teachers gave for poor Black student achievement were the following: lack of parental support, economic and environmental factors, less ability and low language skills, and a limited range of experiences. Since the sample of teachers who gave these reasons is random, the responses may be taken as indicative of attitudes that sixth grade teacher-counselors have about Black student achievement.

The Green-Cohen report (at 167-168) discusses student attendance, stating correctly: “If students are not attending school, they do not have an opportunity to learn.” Seven elementary principals who were interviewed saw no racial differences as to school absences. With respect to high schools, the Green-Cohen report (at 168) found absences from school were racially proportional at Loy Norrix but that “student absences at Central High School appear to indicate a trend of racial disproportionality.” The report does not speculate as to why there would be this difference in rate of absences at the two high schools.

The Green-Cohen report next, still dealing with “educational equity,” discusses student performance and retentions, and reaches the conclusion that black students, on the average, are not achieving as well, particularly in reading and mathematics, as white students, and as has been seen, this results in their, in disproportionate numbers, being placed in classes teaching basic skills as distinguished from college bound, academic-oriented courses.

As to this disparity in average achievement, Green-Cohen stated at 169-170: Student Performance and Retentions The degree of equity in education can also be assessed by considering the outcomes of the educational program. In order to do this, analyses of Metropolitan Achievement Test Scores were carried out in grades 2 through 9 for reading and mathematics, and in grades 5 through 9 for science and social studies for the years 1975-76 through 1977-78.

Figures 4-14 through 4-25 depict performance in each of these areas for each year as a function of grade level, grade equivalent unit level, and racial group (majority students, minority students). As can be seen from these figures, the gap in grade equivalent unit level increased between majority and minority students as a function of grade level, for each subject tested within each cited year. For example, a gap of one-half year in math for the second grade widened to two years for the ninth grade, while a gap of one-half year in reading for the second grade widened to almost three years for the ninth grade.

This would indicate that there was a decided discrepancy in the level of achievement between majority and minority students and that this difference increased as students moved through the school system. As can be seen from Table 4-7, at the early elementary school level for the years indicated, the percentage of early elementary school Blacks who were retained was about three times as high as the percentage of early elementary school Whites who were retained. At the later elementary level, this ratio varied between two to one and three to one.

Also, the figures in Table 4-6 show that there was about a 15 percent to 20 percent difference between the percentages of the total retained students who are Black and the percentages of Black students at each of these elementary school levels, for each of the years being considered. From this table, then, it is evident that Black (as well as Spanish-surname students) were disproportionately retained at each school level for these years. This is a further indication of the disparity in achievement between Black and White students and evidence that this disparity appears early in the educational system.

The Green-Cohen report further states at 294: Remediation Programs Placement in a compensatory education program begins at the elementary school level. These programs are disproportionately Black in their enrollments. Student equity of academic performance is not an outcome of these programs; rather than gaining and overcoming their disadvantages, a large proportion of these students are falling further behind each year. These programs help to lay the foundation for differentiation in course enrollments in secondary schools.

As will be seen, this disparity in achievement between black students and white students on the average is at the heart of this lawsuit, and the district court ultimately concludes that the reason for this phenomenon is that black students have been denied equal protection of the laws. The Green-Cohen report (at 185), in introducing its discussion of the compensatory education program in the Kalamazoo schools, as part of its discussion of “educational equity,” makes the following comment: Compensatory Education Evidence related to equity of educational development can also be obtained by reviewing (

a) enrollments in special programs to determine if they are racially disproportionate and (

b) outcomes of those programs to determine if they result in student equity.

The report concludes (at 185) that blacks are disproportionately represented in “ESEA I Title I enrollments for compensatory education ...” For this purpose the majority of students are compared with blacks, and the majority is defined to include “Whites and students who are neither Blacks, Native Americans, Orientals, or [sic] Spanish [sic].” (Green-Cohen report footnote at 186.) As we have stated, the Green-Cohen report takes the position that black students on the average are not achieving in certain areas as well as white students partly because the compensatory education program is not being properly directed.

It also contends, however, that the very fact that black students are over-represented in compensatory education is itself a failure to deliver educational equity. The Green-Cohen report (at 190) finds some “racial disproportionality in the secondary school reading classes ...” and then “overall, Black students were not achieving on a par with White students in reading.

This finding raises questions concerning the benefits of reading classes.” The Green-Cohen report (at 191) discusses the bilingual program (in Persian, Vietnamese, Spanish and Arabic), which apparently is carried out through “tutorial sessions offered students ... in either individual or group form.” The report states that changes in the program being required by the Office for Civil Rights may result in resegregation of bilingual students.

In any case, as we pointed out (footnote 6), the problems in the bilingual area have not been a subject of this litigation and the district court had no legal basis for implementing recommendations in this area. The Green-Cohen report next takes up (at 193-197) the special education program and investigates whether blacks were over-represented in classes for Emotionally and Mentally Impaired (EMI), Emotionally Impaired (El) and Learning Disabled (LD).

It found that blacks were not over-represented in the early elementary level but were over-represented in the later elementary level in EMI for four years and in LD for two years since 1971. It also found blacks over-represented in EMI and El classes in junior high, and this “racial disproportionality” is also true in the high schools.

C-4 The Green-Cohen report also discusses extra-curricular activities under the general heading of “An Analysis of Educational Equity.” It initially notes some difference in the extra-curricular offerings in the elementary, junior, and high schools (at 199-203) and notes considerable racial disparity in participation in various athletic and other activities (at 204-214) and then evaluates the process by which students become involved in extra-curricular activities as follows (at 215-216): There appeared to be no overt racial differences in these schools in the processes for selecting participants in extracurricular activities.

This conclusion could be misleading, however. For example, in the student government organizations, selection was on the basis of student voting. Racial differences could occur if there was a racial imbalance in the schools or in particular classrooms. In activities where the teachers and principals selected the participants, racial differences could also be a reflection of the attitudes and biases of the selectors. This same logic holds true for those activities where selection was based on judging by a group or committee.

The existence of any relationship between biases in attitudes and selection processes cannot be documented, however, with any of the available data. In most of the activities, the selection process was reported by the District to be one of voluntary participation at the elementary level. Participation in extracurricular activities in secondary schools is also chiefly voluntary. An exception is athletic teams, where the coaches select the team members.

The criteria for the selection of members on an athletic team are set forth in Team Regulations for Players, September, 1976, and Athletic Eligibility Procedures, November, 1978. None of these criteria is racially identifiable.

At the junior high and high school levels, while there appeared to be no overt racial differences in the state District processes for selecting participants in extracurricular activities, it is misleading to conclude that the selection processes were always equitable, given the trend of racial imbalance in several activities over the year—e. g., basketball, baseball, debating, choir, golf at Loy Norrix (see Table 4-14).

Although it is said that in athletic activities, selection is based on state eligibility rules which are standard for all participants, and while participation in most other extracurricular activities is voluntary, questions can still be raised regarding the real selection policies that guide students participation in extracurricular activities.

C-5 Next, again under the general heading of “An Analysis of Educational Equity,” the Green-Cohen report takes up “Teacher Goals, Objectives, and Expectations.” The Green-Cohen staff, for this purpose, interviewed a random sample of teachers which produced the following results (Green-Cohen report at 216-217). With respect to elementary school teachers, 54% said they had the same goals for all and 43% said they had different goals for some, and, of the later group, 67% said that their goals varied as a function of the students’ work.

These students were identified as having problems in the home, differing abilities, or attitude or behavioral problems. All said that the district provided them with goals in reading, mathematics, science, and social studies and 89% said they followed the goals. Ninety-six percent of the teachers grouped their students in the classrooms, with 61% grouping in accordance with performance and 36% by ability.

The Green-Cohen staff interpreted performance and ability to be essentially the same “since ability can be inferred from performance as judged by some type of test or standard.” (Green-Cohen report at 218-219) Further, 74% of the junior high and 76% of the senior high teachers said they had the same goals for all students. Of the junior high teachers who had different goals, most of them said the reason was the difference in skills of the students.

Also, 50% of the junior high teachers having different goals said that special education students (EMI, El and LD, supra) received different objectives. (Green-Cohen report at 219-220) Ninety-six percent of the junior high but only 48% of the senior high teachers said that the system provided them with specific goals for the subjects they taught. The goals of 87% of the junior high and 80% of the senior high were the same as the district’s goals. As to ability grouping, 83% of the junior high and 66% of the senior high teachers did not group students by ability.

Those who did group by ability gave as a reason their performance on MAT tests and reading levels. No racial differences were reported in these areas. (Green-Cohen report at 220-221) Lastly, most teachers reported no within-class ability grouping, but Green-Cohen warned that: “it should be remembered, as noted in the

section on course enrollments, that students have already been tracked into different classes on the basis of prior performance or judgments about presumed ability.” (Green-Cohen at 221) From this last, we deduce that the ability grouping referred to in the preceding two paragraphs refers to the grouping of students who are taking the same subject for assignment to classes. Goals for compensatory education were next discussed. Questions were asked of a sample of regular classroom teachers.

As to elementary teachers, 14% reported that compensatory education is carried out in the classroom, 54% said the students were sent out for this purpose, and 32% said they do both.

Forty-six percent said they had the same objectives for such students, and those who did not gave as reasons differing abilities, skills and motor development. (Green-Cohen report at 222-223) As to placement in compensatory education in elementary and junior high, the following reasons were given: teacher recommendations, MAT scores, or being at least one grade level below the acceptable level, and all reported that there were no racial differences in the application of placement criteria.

Fifty percent of the teachers said that the district provided specific objectives for such students and 75% of these said the objectives were the same for compensatory and non-compensatory students. Most teachers said that the goals for compensatory education students and the district’s goals were the same, individual needs and difference in ability levels being reasons for this.

Seventy-five percent said there were no identifiable groups for which there were different goals, and all teachers said the same criteria were applied regardless of race in removing from the compensatory education program, the criteria being passing tests and “being not less [sic] than a year below grade level ...” (Green-Cohen report at 224-225) The goals and objectives for special education students, as reflected by teacher answers, seemed in general to parallel their answers with respect to compensatory education students. (Green-Cohen report at 226-232) With respect to teacher expectations as to regular, compensatory and special education students, we will simply quote herewith the Green-Cohen report

summary (at 238):

Section

Summary Based upon the interview responses, it can be said that the expectations of teachers appear to differ as a function of the type of student being taught. At least half of the regular classroom teachers said they expected 80 percent or more of their students to master their goals and objectives, while only about 13 percent of these teachers expected 80 percent or more of the compensatory education students to master the goals and objectives of regular classroom students.

About half of the compensatory education teachers expected 80 percent or more of their students to master the objectives set for other students, while about 64 percent of the special education teachers had similar expectations for their students. About 17 percent of the regular classroom teachers said Blacks were less likely to master the goals and objectives which they set for their students.

Although more than half of the compensatory education teachers who were interviewed said they expected between one and two years’ growth in their students’ achievement, analyses of the compensatory education outcome data (see the

section in this chapter) indicate that these expectations have not been met. Three-fourths of the elementary special education teachers and 36 percent of the secondary special education teachers expected less than a year’s growth in their students’ achievement. Given these expectations, it is not surprising that about half of the compensatory education teachers and all of the special education teachers report that the average stay of the students in their program is at least two years.

Since participation in compensatory education and special education programs is disproportionately Black, the results of these interviews indicate that, for many Blacks, mastery of the material and movement out of the special programs are expectations that their teachers do not hold.

With respect to teacher in-service programs, the Green-Cohen report concluded (at 241) that since only “minimal data” were available, the contributions of such programs to the “attainment of student equity cannot be adequately assessed.” The report cautioned, however, that the available data “provide little evidence that there has been a concerted effort on the part of the District to conduct a program of District-wide workships in the area of desegregation and racial relations.” (at 242) D The next general heading in the Green-Cohen report is “An Analysis of Opportunities for Equity in Social and Psychological Development.” The district court also approved the Green-Cohen recommendations and granted relief in this area.

D-l The Kalamazoo school system has provided guidance and counseling services in its junior and senior highs, and the counselors are concerned with educational, social, emotional and occupational growth and development of each student. (Green-Cohen report at 248) There have been a total of thirteen such counselors in the five junior highs and twelve in the two high schools (at 250).

The report (at 254) draws the following conclusion with respect to such counselors: According to the results of the counsel- or interviews, then, the goals or purposes of the counselors are in line with the stated goals of the District. There is a lack of consensus, however, as to whether there are counseling guidelines, as well as to who is responsible for establishing those guidelines. This lack of consensus could contribute to a lack of uniformity in counseling practices within the District.

Also, more than half of the responses given by the counselors affirmed that many of the students’ social problems were racially identifiable, with about one-quarter of the junior high counselors stating that they saw more minority students for personal counseling than White students. While there is no evidence, based on the District responses or the interviews, that the processes followed by counselors in personal counseling are differentiated along the lines of race, it is the perception of counselors that many Black students are experiencing personal/social problems.

With respect to discipline, the policy of the school system is based on the belief “that reasonable behavior should be the goal for each student.

A student may be suspended or expelled if school personnel feel that it is in the better interest of the student population and the student himself.” (Green-Cohen report at 255) With respect to suspensions, the report found that proportionately more blacks were disciplined but does not state that the system’s Code of Conduct is not administered in a fair and even-handed way. (Green-Cohen report at 259 and 295) The report next takes up dropouts and states that, in addition to suspensions, the rate of dropouts provides “another index of equity in the area of social development .... ” (at 259) Although the report states (at 262 and 295) that minority dropouts are out of proportion to their numbers in the system, it was brought out on cross-examination of Dr.

Green (App. at 371A et seq.) that, according to the Green-Cohen report (at 263), the proportion of dropouts to their numbers in the system in 1977-78 as between minority and non-minority was almost the same, and we note that this was also approximately true in 1976-77 since in that year only 24.4% of the total dropouts were minority students. Moreover, in 1975-76, minority students made up only 28.6% of the total dropouts in the system, again close to the percentage of minority students in the system.

Under a heading of “Conclusions” with respect to “opportunities for equity in social and psychological development,” the Green-Cohen report states in part as follows at 279-280: 2. Code of Student conduct: There is a published code of student conduct in the Kalamazoo School District. However, because of the above-cited disproportionately high rate of Black suspensions and dropouts, a question must be raised regarding adherence to the standards of the code. Perhaps the personnel responsible for administering disciplinary actions are unaware of the standards, and hence inequities occur.

In any event, the code should be reviewed and after appropriate modifications, it should be disseminated to all students and teachers, as well as to all other personnel involved in handling discipline problems. When discrepancies such as those noted occur, measures should be taken to find an effective remedy- 3. Disciplinary procedures: There is a published uniform discipline policy.

However, the findings included the following: at three of the five junior high schools and at one of the two senior high schools, there were disproportionate Black suspension rates for Category I offenses; and at all seven schools, there were disproportionate Black suspension rates for the more serious Category II offenses. Furthermore, at all seven schools, there was a higher percentage of minority, as compared to majority, dropouts.

While 20 alternatives to suspension, 19 programs to prevent dropouts, and at least six inservice programs relating to discipline were conducted over the past few years, none seems to have had any noticeable effect on the disproportionate rates. Furthermore, no evaluation data were provided. Therefore, no conclusions can be reached regarding the impact that these programs had on Black or White students. E The Green-Cohen report (at 281) contains a

chapter on “Perceptions of Community Leaders Regarding The Desegregation Effort.” To obtain this information on such perceptions the Green-Cohen staff interviewed ten persons, six white and four black, nine of whom were male and one of whom was a black female. “These persons included past and present leaders of the NAACP, past and present school board members, a leading local journalist, a member of the financial community, a school official, two clergymen, and a community agency worker.” (Green-Cohen report at 282) The report does not quote any of the leaders but states (at 286) that “the opinions of the leaders were consistent with the findings of this report,” to wit (1) “the schools have made substantial progress toward racial balance at the building level (with the exception of four elementary schools and one junior high school, as noted earlier)”; (2) that the “schools cannot be considered to be desegregated, in view of disproportionate racial enrollments in certain academic areas”; and (3) “the inservice training which has been provided for school personnel has not been adequate to insure maximum educational benefits for all students.” While the Green-Cohen report indicates that some in the Kalamazoo community question the wisdom of the court-ordered desegregation plan that has been in effect since 1971 (at 283), it also makes clear that, as a community, Kalamazoo has cooperated in an effort to make the plan work, stating at 11: The implementation of the Court-ordered busing was essentially uneventful, with many volunteer parent groups involved in insuring a smooth transition.

A financial problem resulted from the increased cost of busing and the increased number of students to be bused. This was resolved by obtaining a special legislative permission for an additional school millage election which was passed by the Kalamazoo voters. F The Green-Cohen report (at 298) contains an overall

summary of its conclusions as follows:

Summary The Kalamazoo Public School District has made substantial progress in moving from a dual educational system toward a unitary system. This process will not be completed, however, until three major goals have been achieved: 1. The District must take steps to end the racial identifiability of the four elementary schools and one junior high school found to exceed the ±15 percent deviation with respect to racial balance. 2. The District must take steps to remove evidence of racial identifiability in various academic programs where resegregation within buildings has occurred. 3.

The District must take steps to achieve equity in achievement outcomes for all students—White, Black, and other racial minorities. Currently there is no evidence that past academic programs have resulted in a decrease in the achievement outcome disparity between Black and White students. Indeed, this disparity from 1970-71 through 1978-79 has increased. Recommendations, both administrative and academic in nature, will now be presented. If implemented, these recommendations should move the system toward unity status.

The Green-Cohen report (at 299) listed the areas in which it was making recommendations for action. These included “racial distribution of students among buildings” and “staff employment practices,” but the district court, as we have before stated, granted no relief in these areas at this time. The areas listed in the report as to which relief was granted are: “3. Curricula (academic programs). 4. Class absences, retentions, suspensions and dropouts. 5. Extracurricular activities. 6. Inservice Training. 7. Program monitoring. 8.

Community relations.” G Before outlining the recommendations of the Green-Cohen report which the district court ordered implemented, we will first discuss the extensive testimony of Dr. Green. Dr. Green was of the opinion that, with respect to attaining unitary status in pupil assignment, while the district had made “tremendous strides,” it never had reached such status since, applying the ± 15% test, one school remained segregated after the court’s desegregation order and four schools were segregated in 1979-80 (App. 276A-277A). Dr.

Green felt that not enough had been done, in order to acquire unitary status, in an effort to reduce suspension and dropouts and to furnish support services primarily in reading and math (App. 277A). Dr. Green believed that there were “some efforts to bring about a change in teacher attitudes through in-service training, that that effort was not direct and intensive enough. ...

We also felt that in-service training [should] be directed not just at teachers but administrators, clerical staff, supportive staff, general maintenance workers, janitors in the school, bus drivers, teacher aids; that that in-service training should be systematically rigorous and intensive from top to bottom; bottom up, top to bottom.” (App. at 278A) He believed that in-service training should be of “long duration” (App. at 303A), should include even “cafeteria workers” and “crossing guards,” (App. 311A) and would be the most expensive part of the programs he was recommending. (App. at 318A) Dr.

Green indicated that, due to lack of in-service training of teachers, a disproportionate number of black students were being assigned to special education classes. (App. at 280A) He further recommended as follows (App. at 284-285A): That youngsters be mainstreamed as quickly as possible beginning at the elementary-school level and provided with the necessary social-psychological support as well as actual cognitive support in order to become effective students.

In mainstreaming programs it’s our feeling that when young people are trapped or are placed in special programs, that these special programs themselves sometimes would reinforce and contribute to their lack of academic achievement. So, in the very beginning we recommended that that district begin an effort, make an effort to begin a program to systematically move these, to merge special programs with regular mainstream programs in order that youngsters who have historically lagged behind could pass and can catch up and become a part of the regular instructional process. Dr.

Green believed that a person experienced in education and desegregation should be employed from three to five years, with approval of the court, to monitor “the effectiveness of programs structured by the district to facilitate the achievement of unitary status” and report to KBE and the court regularly. (App. 287A-288A) He thought that, while Kalamazoo has been a very exceptional community in terms of its overt acceptance of desegregation,” he also thought that a “blue-ribbon” citizens committee should be formed “to provide support to the superintendent and to the school board in their efforts to achieve full unitary status.” (App. 288A-289A) He was not asked about and did not comment on the fact that the number of active Parent Teacher Organizations in Kalamazoo decreased from thirty-one in 1972 to sixteen in 1976. (KBE report at 132) Dr.

Green reached the conclusion that the ancillary cognitive and behavioral programs heretofore funded by ESAA had not been successful in “closing the gap” between white and black achievement but employees whose salaries were funded by ESAA should be kept to aid in carrying out the programs he was recommending. (App. 290A-292A) He thought that it is highly doubtful whether the ESAA programs have been of any value at all.

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