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Berry v. Sch. Dist. of City of Benton Harbor, 515 F. Supp. 344
Date: 07, 2021

INTRODUCTION

This is a school desegregation action involving three local school districts in Berrien County, Michigan. Berrien County is located in the southwestern corner of Michigan, bounded on the west by Lake Michigan and on the south by the Indiana border. The county's population is approximately 172,000. Twenty-five percent of that population lives in three principal cities of Benton Harbor, St. Joseph, and Niles. Benton Harbor, with a population of approximately 15,000 is the largest city.

The Benton Harbor Area School District (BHASD) is the largest school district in Berrien County with approximately 9,100 students. The district presently has 77% black student enrollment. It has been the major focus of this school desegregation litigation. Coloma and Eau Claire are both predominantly white, rural school districts that abut the borders of the BHASD. Coloma School District is contiguous to BHASD directly to the north and northeast. The Eau Claire district borders the southern peninsula of the BHASD on its east border and southwest corner.

This attendance figure for the Benton Harbor School District is taken from attendance data compiled in a district-wide pupil count taken on October 3, 1980. Coloma and Eau Claire School Districts attendance below, data is taken from a district-wide pupil count conducted on September 26, 1980.

BHASD is the largest of these three school districts. It was formed in 1965 by consolidation of 16 kindergarten through eighth grade school districts, whose high school students attended the Benton Harbor High School. Subsequently, two additional K-8 districts were added to the consolidated district.

Coloma and Eau Claire are substantially smaller K-12th grade school districts with a significantly different racial makeup in their student populations. The Coloma district is the largest of these two districts with enrollment of 2,433 students, six of whom are black. The Eau Claire district has 879 students. Seventy-three of its students are black. The City of Benton Harbor lies at the far west end of the school district and is approximately 15 miles southwest of the City of Coloma and 15 miles northwest from the Township of Eau Claire.

Both Coloma and Eau Claire are small, rural, homogeneous agricultural communities with little, if any, business, social or economic interaction with Benton Harbor. These towns do not form a metropolitan area with the City of Benton Harbor. In addition to the physical distance between the City of Benton Harbor and the City of Coloma and the Township of Eau Claire, other physical barriers exist between these communities. They are separated by wide expanses of agricultural land. In addition, an expressway from Chicago to Detroit circles the east of Benton Harbor, limiting east-west traffic in and out of the city.

It is also important to understand the population migration in and out of Benton Harbor within the past 15 years. Black students constituted 37.3% of the Benton Harbor district enrollment in 1966, 73.1% in 1976, and approximately 77% in 1981. Several factors account for this rapid change in the racial composition of the area and its school district. Movement of white population out of the city has accelerated and at the same time black movement into the city has increased. In addition, the black population presently has a birth rate that exceeds the white birth rate by 200%. These population trends are not unique to Benton Harbor, but have been characteristic of most urban centers throughout the country in the past two decades. In 1968, the Whirlpool Corporation, Economic and Marketing Department, completed a demographic study of the area entitled: "Population and Mobility Trends in Benton Harbor". In this report, Whirlpool recognized this established population trend and projected that black population in the area and enrollment in the school district would continue to increase.

See, Sterlieb and Hughes, J.W., "The Changing Demography of the Central City", Scientific American, Volume 243, No. 2, at 448 (August 1980).

In addition, the City of Benton Harbor has suffered an economic disaster within the past decade. This fact cannot be ignored in assessing the segregative impact of the unconstitutional acts of these defendants. Benton Harbor presently totters on the brink of bankruptcy. The downtown business district is a blighted area. It covers 11 square blocks and in that area over 90% of the stores have been closed. Unemployment is up 700% since the 1960s. The city is hopelessly in debt, existing on a day-to-day basis and over the past several months has seriously contemplated receivorship.

I mention these facts only to demonstrate the seriousness of problems that Benton Harbor has experienced and the complexity of devising an effective desegregation remedy in an atmosphere of urban uncertainty, decay and chaos.

In spite of this gloomy overview, it is apparent that Benton Harbor still has a large number of dedicated school officials, board members and interested parents dedicated to improving the quality of the children's education.

This desegregation case has been in the federal judicial system for more than ten years. It has previously been assigned to two different federal district judges who have heard and decided the liability phase of the litigation. In February, 1980, the case was reassigned to me for formulating, adopting and implementing a remedy. This opinion includes the court's desegregation remedy plan.

This school desegregation case was originally heard by Judge W. Wallace Kent. Judge Kent found that several practices of the defendant BHASD were discriminatory. However, he concluded that the racial imbalance in the Benton Harbor schools was not a result of de jure segregation. The Sixth Circuit affirmed in part and reversed in part, finding that a prima facie case of de jure segregation had been made out against the Benton Harbor School District. ( 505 F.2d 238 (6th Cir. 1974)). The case was remanded to the district court to provide an opportunity for the school district to rebut.

On remand, the case was reassigned to Judge Noel P. Fox. Motions by plaintiffs to add additional defendants and to enjoin transfer of a predominantly white area (Sodus II) out of the BHASD to the Eau Claire district was granted. The added defendants were the Michigan State Board of Education; John W. Porter, as Superintendent of Public Education of the Board of Education of the State of Michigan; the Berrien County Intermediate School District and the Boards of Education of the Eau Claire School District and the Coloma School District. The Sixth Circuit affirmed both the issuance of the injunction and the court's order adding additional defendants. Liability was heard and decided in two phases by Judge Fox. The first phase included findings of liability against the Benton Harbor School District, 442 F. Supp. 1280 (6th Cir. 1977). The second phase included findings of liability against the added defendants, 467 F. Supp. 630 (6th Cir. 1978).

HISTORY OF THE CASE

This action was initiated in November, 1967, by parents of black students in the Benton Harbor Area School District (BHASD) and by the National Association for the Advancement of Colored People (NAACP) against the Benton Harbor School District. In August, 1974, the plaintiffs' complaint was amended to include the Governor of the State of Michigan, the Michigan Attorney General, the Michigan State Board of Education, the State Superintendent of Public Education, (hereinafter referred to as state defendants) and the Coloma and Eau Claire School Districts as additional defendants.

All of the defendants added in August, 1974, including the state defendants and the Coloma and Eau Claire School Districts, are referred to as "added defendants".

The facts underlying the present litigation have been fully discussed by the court in its earlier opinions. Consequently, a complete recitation of the facts need not be repeated here. The court refers the interested reader to two opinions on liability that appear at 442 F. Supp. 1280 (6 Cir., 1977) and 467 F. Supp. 630 (6 Cir., 1978) for a full understanding of the facts. In addition, see this court's opinion affirming the findings and conclusions on liability which appears at 494 F. Supp. 118 (D.C., 1980). Liability of each of these defendants has already been determined. The issue presently before the court is establishment of a constitutionally acceptable, fair, understandable and workable remedy.

The touchstone of any school desegregation remedy is that the "scope of the remedy is determined by the nature and extent of the constitutional violation." Swann v. Charlotte-Mecklenburg Board of Education, et al, 402 U.S. 1, at 16, 91 S.Ct. 1267, at 1276, 28 L.Ed.2d 554 (1970). Consequently, a brief review of the findings of fact made by the court on the question of liability is appropriate.

Liability was tried and findings on liability were made in two separate phases. Phase I dealt only with the conduct of the Benton Harbor Area School District. In Phase II, the court considered the conduct of the additional defendants, including the Governor of Michigan, the Attorney General of Michigan, the Superintendent of Public Instruction of Michigan, the State Board of Education, the Berrien County Intermediate School District and its Superintendent, and finally, the Coloma and Eau Claire School Districts and their superintendents.

In Phase I of this litigation, the court found that the BHASD failed to rebut a prima facie showing of de jure segregation established in an earlier proceeding before Judge Kent. The unconstitutional, segregative conduct of the district prevaded the entire school district. The continuing purpose of the school authorities in several of their policies, was to isolate black students in certain schools and within certain classrooms while preserving the predominantly white character of other schools and classrooms. The evidence demonstrated that within the Benton Harbor District, decisions with respect to assignment of teachers, use of a "tracking" program at one junior high school, attention to conditions of school structures, provision of educational supplies, busing of students, established feeder patterns, placement of portable classrooms and temporary facilities, and inconsistent application of a neighborhood school policy were undertaken with an intent to segregate students and teachers by race. In addition, in 1973 the district acted with an unconstitutional racially-animated purpose in approving the Sodus II property transfer to the Eau Claire District, which would have had a segregative impact on the Benton Harbor district.

These actions, over a course of several years, perpetuated racial isolation and separation within the public schools. Severe and unfortunate consequences have followed from this imposed segregation. Students have been given and denied education opportunities based on their race. The school district has been plagued with chronic developmental and achievement problems in most of their schools. This pattern of conduct and the results that followed set the stage for the exodus of white families from the district and attempted property transfers out of the consolidated district by white property owners. Today, Benton Harbor is a predominantly black school district in chronic need of assistance. Seven of the districts' 21 elementary schools and one of its junior high schools have in excess of 98% black student enrollment. Eleven of its 21 elementary schools and all three junior high schools are identified, based on fourth grade and seventh grade student performance on the most recent state-wide achievement tests, as schools with "high needs" in mathematics or reading and more frequently in both areas of achievement.

Black, racially-identifiable schools within the Benton Harbor School District and their percentage of black enrollment in the 1980-81 school year are: Bard — 99.7%, Boynton — 99.9%, Calvin Britain — 98.1%, Martin Luther King — 99.2%, Morton — 99.2%, Seely McCord — 98%, Sterne Brunson — 98.8%, and Benton Harbor Junior High School — 98%. These enrollment statistics are taken from attendance data compiled in a district-wide count on October 3, 1980.

This achievement information is taken from the most recent scores on the Michigan Educational Assessment Program 1980-81 (MEAP), Proportions Reports.

In addition, the court found that the state defendants were aware as early as 1970 of racial segregation established in the Benton Harbor Public Schools. Information gained in State Board of Education hearings conducted on property transfers in 1971 and 1972 and through participation by the State Board on the "Blue Ribbon Planning Committee" in May and June of 1971 could only have added to their awareness of racially-motivated decisions and serious race related problems within the schools. In spite of this awareness, the state defendants failed to undertake any affirmative action to assist in desegregating these schools or to bring an end to race-based policy decisions within the district. By failing to act, the state defendants abandoned their statutory and constitutional roles and condoned segregative conduct within the district and assured continuing segregation and resulting loss of educational opportunities for black students. This inaction, the court found, was contrary to duties under the Michigan Constitution and laws and inconsistent with the State Board of Education's articulated policies on desegregation. Failure to take steps to remedy these problems has resulted in serious developmental damage to children within the schools.

On April 23, 1966, the State Board of Education and the Michigan Civil Rights Commission adopted a Joint Policy Statement on Equality of Educational Opportunity. This Joint Policy Statement was reaffirmed by the State Board of Education in 1973. The Statement is reproduced in the court's opinion in Oliver v. Kalamazoo Board of Education, 346 F. Supp. 766, at 776 (W.D.Mich. 1973).

The Berrien County Intermediate School District, as well, failed to satisfy any affirmative duty to act, to discontinue race-based, segregative policy decisions within the Benton Harbor District. The Intermediate District established a "Blue Ribbon Planning Committee" in May of 1971, to address the problems of violence and declining educational achievement in the Benton Harbor Schools. Ultimately the efforts and recommendations of that committee led to the creation of the "Redistricting Planning Committee". Both committees considered redistricting proposals which would have divided the BHASD into racially-segregated subdistricts and in the end would have resulted in the abandonment and isolation of the predominantly black central city area. Under supervision of the Intermediate District, the Redistricting Committee's report included recommendations of two racially-animated and segregative redistricting plans. This report and the apparent Intermediate District support of it encouraged the hopes of white parents and property owners whose purpose was to fragment the district along racially-grouped residential lines. The Intermediate District never acted to communicate the constitutional limits to any policy decisions or conduct related to redistricting.

In addition, the Intermediate District, after a hearing held in April of 1973 on the Sodus II property transfer, voted to grant that transfer. If this transfer had been implemented, the predominantly white southern peninsula of the Benton Harbor district would have been transferred out of the district and attached to the Eau Claire School District. The property transfer was also approved by the State Board of Education, enjoined by this court and consequently never realized. The court found that the transfer would have had a segregative impact on the district and found that the Intermediate District, aware of this fact, acted with a segregative purpose in granting the petition.

Likewise, the court found that both Coloma and Eau Claire undertook to support and accomplish transfer of contiguous white residential areas from the BHASD to their own white, rural districts. Coloma participated in 1970 and 1971 in the process that led to the successful transfer of the Eamon residential area, in the northwest corner of the Benton Harbor School District. The Eamon area was transferred out of the Benton Harbor district and has been a part of the Coloma district since 1971. In 1973, Eau Claire invited annexation of the Sodus area, the southern portion of the BHASD, to its school district. The court found that both of these property transfer efforts were products of racially-inspired plans and policies within the Coloma and Eau Claire school administration.

While Eau Claire's approval of the Sodus II transfer was considerably more open than the more subtle, behind the scenes conduct of Coloma related to the Eaman transfer, both efforts were found to be racially motivated. The Eamon transfer was successful and had a segregative impact on the BHASD by withdrawing 150 white students from the district. The Sodus II transfer was enjoined by the court. However, had it been successful, it too would have withdrawn white students from the Benton Harbor School system. In addition, Eau Claire accepted tuition students from Benton Harbor, a policy designed to prevent white students from being required to attend classes with increasing numbers of black students in the Benton Harbor system.

SCOPE OF THE REMEDY

Several alternatives are open to the court in forming a remedy for the constitutional violations that these three districts have been found to have committed. Within the plans that the court has received, several options have been recommended to it. In at least two plans, experts have recommended that these three school districts be consolidated into one in order to achieve a sufficient amount of desegregation, to create learning opportunities that will remedy the losses that students have suffered and to lay a basis for improving the quality of education for the Benton Harbor area. Three other plans recommend that the Benton Harbor district alone be totally desegregated. Under the plan submitted by Dr. Michael Stolee, Dean of the School of Education at the University of Wisconsin, Milwaukee (the court-appointed expert), the Benton Harbor schools would be desegregated and in addition, these three local districts would participate together in establishing desegregated magnet programs open to students from all three districts, and encourage voluntary interdistrict transfers. This would encourage and provide the means for voluntary desegregation.

Judge Fox, in his November 8, 1979, opinion, adopted the recommendation found in the Candoli Plan and the Foster/Green Plan, both of which called for dissolution of the three independent school districts, followed by the complete consolidation of the three districts into one and elimination of all racially identifiable schools within the newly-created district. After this school desegregation case had been reassigned to me, in an order dated June 19, 1980, I stayed the order of Judge Fox in which he mandated a three district consolidation as a necessary part of any equitable remedy in this case. This court has since had the benefit of hearing testimony and argument offered by all parties, including Coloma and Eau Claire on the question of the "incremental segregative effect" of their segregative conduct on their neighboring school district.

The Supreme Court has said in Dayton Board of Education v. Brinkman, 433 U.S. 406, at 420, 97 S.Ct. 2766, at 2775, 53 L.Ed.2d 851 (1977) ( Dayton I), that the extent of a defendant's participation in a desegregation remedy should be determined by "how much incremental segregative effect these violations had on the racial distribution of the . . . school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy should be designed to represent that difference . . ." (Emphasis added)

To begin with, I agree with several important findings discussed by Judge Fox in his analysis of the incremental segregative effect created by conduct of the Coloma and Eau Claire Districts. First, their segregative conduct had an effect on an already vulnerable school district. These effects went far beyond the removal of 150 white students from the Eamon area and 100 or more white tuition students from the Benton Harbor schools. Hopes and expectations created by the successful Eamon transfer out and attachment to Coloma contributed to a series of property transfer petitions by white property owners in 1971 and 1972. Parents began to conclude that their children's best interests would be served outside of the BHASD and believed that they could abandon the district with impunity and without responsibility for correcting behavioral and education problems plaguing the schools. Realistically, the incremental effect on racial segregation and existing educational problems cannot be quantitatively measured. This court need not measure precisely the adverse effects that followed the Eamon transfer in order to conclude the results were devastating to the school district and to the quality of education it was able to offer. One school board member described the resulting chaos in the district as like "riding a moving iceberg as it fragmented beneath you."

At least two district courts have rejected the "alternative universe theory" suggested by the discussion of "incremental segregative effect" in Dayton I. See, Booker v. Special School District No. 1, Minneapolis, 451 F. Supp. 659 (Minn. 1978), and Armstrong v. O'Connell, 463 F. Supp. 1295 (E.D.Wis. 1979). When factors such as housing, economic and employment discrimination, as well as conduct by school administrations, result in racial changes and racial isolation within an area, it is difficult, if not impossible, to separate each factor and measure precisely the extent of the impact or present effect of any one segregative action.

The evidence, however, does not warrant a finding that Coloma and Eau Claire were the exclusive or major contributors to the continuing situation of racial separation and chronic low achievement in the Benton Harbor district. The system-wide effects of the constitutional violations of the Benton Harbor district itself, the State Board of Education and Superintendent of Education, and the Intermediate District all contributed to perpetuating racial isolation within the school district. I do agree with Judge Fox, however, that the practices and episodes in which Coloma and Eau Claire were involved added a significant "increment" to a situation that had a substantial segregative impact. I also agree with Judge Fox that it is unrealistic to believe that return of the Eamon area and Eau Claire's tuition students alone would give Benton Harbor back its lost stability or create educational opportunities that can remedy the losses Benton Harbor students have already suffered.

Any remedy that can be expected to work effectively and work immediately to correct the losses suffered by children in the Benton Harbor Schools must include the active participation of all three districts, based on their incremental contribution to school segregation and its related educational problems. However, an effective remedy need not compromise the autonomy of the three school districts. Under this court's plan, the boundaries of these separate and autonomous school districts will not be set aside. The remedy plan will include interdistrict cooperation in developing integrated magnet programs located in each school district and open to students from each of these districts. The court is confident that the remedial purpose of this plan can be achieved and the constitutional rights of the plaintiffs be vindicated without consolidation of these school districts.

Until the entry of final judgment disposing of this litigation, this court has the inherent power to correct any error in the findings of facts or decisions of the court in this litigation. See, Jettro Construction, Inc. v. South Memphis Lumber Company, 531 F.2d 348, 351 (6th Cir. 1976). Consequently, the findings of fact on the question of "incremental segregative effect" incorporated in this opinion complement and in the ultimate conclusion supercede decisions in the opinion issued by this court's predecessor in this case on November 8, 1979.

I do not disagree with Judge Fox's assessment of the seriousness of the conduct involved. Neither would I dispute his conclusion that under the principles articulated in Milliken v. Bradley, 418 U.S. 717, at 744-45, 94 S.Ct. 3112, at 3126-28, 41 L.Ed.2d 1069 (1974) ( Milliken I) as applied to the facts of this case, the court has the authority to set aside the boundaries of these autonomous districts and consolidate them for remedial purposes. However, I am satisfied from the evidence that such extreme recourse is neither wise, necessary nor constitutionally mandated to achieve the remedial purposes of this plan.

Several considerations support this decision to not consolidate these three local school districts. First, the contribution of Coloma and Eau Claire to Benton Harbor's segregation and ensuing problems is significant, but is neither the exclusive nor primary cause of these problems. Secondly, the geographic structure of the area and the natural boundaries have the affect of dividing these three districts into separate, identifiable areas unrelated by any common pattern of interaction or any common governments. Third, the tradition of local control over the operation of schools is deeply rooted in public education and is perceived as a unique characteristic contributing to successful public education in this country. Preserving the autonomy of the districts and continuing local control of their public schools may in fact contribute to the practical success of this plan and to the quality of educational opportunities offered to students in all three districts.

The U.S. Supreme Court found in its opinion in Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, at 203, 93 S.Ct. 2686, at 2695, 37 L.Ed.2d 548 (1972) that a determination of state-imposed segregation and a substantial portion of a school district could support a finding of de jure segregation throughout the district. The Court, however, indicated that in some circumstances the physical and geographic makeup of an area might prevent a district court from applying this presumption.

"This is not to say, of course, there can never be a case in which the geographical structure of, or the natural boundaries within, a school district may have the effect of dividing the district into separate, identifiable and unrelated units. Such a determination is essentially a question of fact to be resolved by the trial court in the first instance, but such cases must be rare."

The importance of local control over schools and children's education was emphasized by Dr. Herbert Walburg, Professor of Urban Education and Human Development and Learning at the University of Illinois, in his testimony on the issue of achievement motivation. Local control of schools has been identified as unique to the American system of public education and a significant factor contributing to success of public education. See also, Milliken I, 418 U.S. at 741-742, 94 S.Ct. at 3125-3126, "No single tradition in public education is more deeply rooted than local control over the obligation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process."

Basic principles established by the Supreme Court guide this court in its responsibilities to formulate, adopt and implement a plan to remedy the conditions created by unconstitutional action and inaction of these defendants. These guiding principles are both simple and direct. The first, of course, is that principles of equity apply.

"In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by facility for adjusting and reconciling public needs."

The Supreme Court in desegregation cases has repeatedly emphasized that:

"The task is to correct, by a balancing of the individual and collective interests, `the condition that offends the Constitution.' A federal remedial power may be exercised `only on the basis of a constitutional violation' and, `as with any equity case, the nature of the violation determines the scope of the remedy.'"

Once invoked, however, "the scope of the district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." Swann, supra, at 15, 91 S.Ct. at 1275.

Application of these equitable principles requires this court to focus on three factors.

"In the first place, like other equitable remedies, the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. [1] at 16, 91 S.Ct. 1267 [at 1276] 28 L.Ed.2d 554. The remedy must therefore be related to `the condition alleged to offend the constitution . . .' Milliken I, 418 U.S., at 738, 94 S.Ct. 3112 [at 3124] 41 L.Ed.2d 1069. Second, the decree must indeed be remedial in nature, that is, it must be designed as nearly as possible `to restore the victims of discriminary conduct to the position they would have occupied in the absence of such conduct.' Id. at 746, 94 S.Ct. 3112 [at 3128] 41 L.Ed.2d 1069. Third, the federal courts in devising a remedy must take into account the interest of state and local authorities in managing their own affairs, consistent with the Constitution."

A three district remedy designed to achieve an established degree of racial balance in each school in these three local districts would be remarkedly sweeping. In my opinion, the scope of such a remedy sweeps too broadly. Such a far reaching remedy imputes to school officials in Coloma and Eau Claire an intent far more pervasive than the evidence justifies.

In Milliken I, supra, 418 U.S. at 744-745, 94 S.Ct. at 3126-3128, the court described the nature and extent of constitutional violations that would warrant consolidation of separate school districts or imposition of an interdistrict plan for remedial purposes. The court said:

"Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes or by imposing a cross-district remedy, it must first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district. Specifically, it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation. Thus an interdistrict remedy might be in order where the racially discriminatory acts of one or more school districts' racial segregation in an adjacent district, or where district lines have been deliberately drawn on the basis of race. In such circumstances an interdistrict remedy would be appropriate to eliminate the interdistrict segregation directly caused by the constitutional violation. Conversely, without an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy."

Interdistrict violations with interdistrict effects of sufficient seriousness have been established in this record on liability to warrant interdistrict involvement in a remedy under this test. The actions of Coloma and Eau Claire not only contributed to segregation, they also contributed to disruption within the Benton Harbor District which rendered school officials unable to solve the racial and educational problems facing the district. Coloma's contribution to these problems, if measurable and if measured, would certainly be perceived as being greater than any incremental contribution made by Eau Claire school officials. The effect of any racially inspired conduct on the part of Eau Claire by school officials is diminished by the fact that the Sodus II property transfer was never completed. The successful Eamon transfer had a much more grave effect on the events that followed it than the aborted Sodus II transfer. This disparity in incremental contributions, however, exists not because of any different degree of racially inspired conduct in the two school districts, but because the Sodus II transfer was enjoined by this court.

Both districts participated in racially motivated planning that in one instance did and in the other would have, created opportunities for white property owners and students to abandoned the fragmenting iceberg. Violations by both school districts have had a clear, interdistrict effect. These constitutional wrongs call for an interdistrict remedy, but something less than consolidation of these three districts and less than complete desegregation in each district.

The extent of this three district remedy is appropriately limited by other factors that the court must consider, including the crucial importance of local control over public education. Local control has been identified as unique to American education and essential to continuing community contribution to the quality of education. Continued local control of Coloma and Eau Claire School will not only enhance the quality of educational opportunities for their students, but will also inure to the benefit of Benton Harbor students who participate in distinctive magnet programs established in this plan.

In Milliken I, supra, in discussing circumstances under which a federal court may order desegregation that includes more than one school district, the court cautioned against treating school boundaries as "no more than arbitrary lines on a map drawn for `political convenience'". The court said:

"Boundary lines may be bridged where there has been a constitutional violation calling for interdistrict relief, but the notion that school district lines may be casually ignored or treated as a mere administrative convenience is contrary to the history of public education in our country. No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process. See Wright v. Council of the City of Emporia, 407 U.S. 451, at 469 [ 92 S.Ct. 2196 at 2206, 33 L.Ed.2d 51]. Thus, in San Antonio School District v. Rodriguez, 411 U.S. 1, 50 [ 93 S.Ct. 1278, 1305, 36 L.Ed.2d 16] (1973), we observed that local control over the educational process affords citizens an opportunity to participate in decisionmaking, permits the structuring of school programs to fit local needs, and encourages `experimentation, innovation, and a healthy competition for educational excellence.'"

The condition that offends the Constitution here can be corrected without sacrificing the autonomy of Coloma and Eau Claire districts. In fact, the collective interests of all three districts may well be best served by the continued existence of these districts. The success of this plan turns on the resolve and the ability of these three districts to work cooperatively in creating opportunities for quality, integrated education for their students.

The court cannot be blind to the potential disruption of the entire educational process by an order overly broad, not warranted by the evidence, which in effect would destroy the existence of three lawfully-constituted school districts. I am satisfied that the great majority of black and white parents and children have no objection to integrated schools as such. All parents object strenuously, however, to a system that appears to use children as pawns to bring about desirable social and economic goals that adults have as yet failed to achieve; such as fair and equal housing, freedom of mobility, and equal employment opportunities. One need not be told by experts to know that our children's future economic success, happy, useful and worthwhile lives depend to a large degree on the quality of their education. Parents, black and white, unquestionably place achievement of their children in academically acceptable schools as their top educational priority. It is my hope and expectation that the court's plan will accomplish just that in a safe, harmonious, cooperative desegregated environment.

Two goals must be achieved to make the court's plan a success: (1) greater numbers of children in Benton Harbor must be educated in desegregated school environments; (2) Benton Harbor children must be provided with increased opportunities for quality educational experiences with professional and compassionate assistance to enable them to improve their achievement motivation and task performance. The Benton Harbor, Coloma, and Eau Claire School Districts, the Berrien Intermediate School District, and the State Board of Education have each been sufficiently implicated in contributing to segregation and resulting developmental problems, that each entity must contribute actively to this court's conceived remedy plan.

THE COURT'S DESEGREGATION PLAN Introduction

In February, 1980, this case was reassigned to me for formulating, adopting and implementing a remedy. Motions for reconsideration of the liability were filed by all of the added defendants and denied. In an opinion dated June 19, 1980, the court reaffirmed the findings and conclusions on liability as determined by Judge Fox. The court has since heard at least 27 days of testimony, including testimony of 9 expert witnesses, and has had the benefit of the parties' briefs and proposed findings of fact and conclusions of law on the question of an appropriate remedy. In addition, five different plans proposed to remedy the unconstitutional conduct of the defendants have been submitted to the court and have been the subject of testimony as well.

This opinion includes the court's desegregation remedy plan in which all defendants are directed and expected to participate cooperatively. The extent of involvement of each defendant is based on the nature and extent of its unconstitutional conduct and its adverse, segregative impact on the Benton Harbor School District. The court is of course guided in fulfilling its duties and limited in the exercise of its power to impose a remedy on any defendant by the mandate that the scope of the remedy not exceed the scope of the constitutional violation. Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977); Austin Independent School District v. United States, 429 U.S. 990, 991, 97 S.Ct. 517, 50 L.Ed.2d 603 (1976) (Powell, J. concurring); Pasedena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976); Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971).

The court has made every effort to remain faithful to this objective. In addition, the court is aware that the Supreme Court has directed district courts in school desegregation cases to determine how much "incremental segregative effect" each constitutional violation has had on the racial distribution of the school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy then must be designed to redress that difference in racial distribution. See, Dayton Board of Education v. Brinkman, 433 U.S. 406, at 420, 97 S.Ct. 2766, at 2775 (1977) ( Dayton I). It is apparent, however, that precise measurement of the incremental contribution of each defendant to segregation and its resulting problems in the Benton Harbor schools is impossible. However, the extent of involvement of each defendant in the remedy has been tailored, as closely as possible, to the extent of the impact of their unconstitutional conduct on the Benton Harbor School District.

This is an equitable remedy. Therefore, it follows no hard and fast established rules. Of necessity it is a product of judicial judgment. It is a plan that has emerged after careful and thoughtful analysis of the evidence. It is intended to be practical and fair. It is not intended to be punitive. It is conceived as a plan designed to work effectively and immediately to correct an unfortunate situation caused and contributed to by conduct in violation of the Fourteenth Amendment.

This plan has not been developed in isolation from the greater ongoing debates about educational benefits of court imposed school desegregation. The court is, of course, aware that scholars, members of Congress, and members of the Supreme Court have engaged in public policy debates on the subject of court imposed school desegregation. Many people question the proper limits of the role of the federal courts in confronting problems of public education. Criticism has been leveled at judicial approaches to desegregation which in many instances relied heavily on use of court imposed student transportation and establishment of precise racial balance in schools.

Academic debate has intensified about the question of the extent of educational benefits realized by children as a result of integrated education. Researchers and writers find it difficult to agree on the effect of desegregation on black student achievement. See, Coleman, "New Incentives for Desegregation", 7 Human Rights, No. 3, at 10 (1978), Crane, R. and Mahard, R. "Desegregation and Black Achievement: A Review of the Research", 42 Law and Contemporary Problems, No. 3, at 17 (1978). See also, Justice Powell's dissenting opinions in Austin Independent School District v. United States, 429 U.S. 990, at 991, 97 S.Ct. 517, at 517, 50 L.Ed.2d 603 (1976); and Columbus Board of Education v. Pennick, 443 U.S. 449, at 479, 99 S.Ct. 2941, at 2987, 61 L.Ed.2d 666.

The plan, hereinafter detailed, uses transportation of students as a limited and necessary tool to achieve racial desegregation. The plan does not, however, rely exclusively on imposed racial balance in schools or on extensive transportation of children. In my judgment, those techniques alone will not solve the educational problems related to imposed racial separation and isolation in these three school districts. To some, the plan may be seen as going too far; to others not going far enough. It utilizes traditional desegregation techniques and some unique educational interventions as well. Very simply, it is designed to achieve two critical objectives: to enhance desegregation within the three local school districts and to improve academic achievement within the Benton Harbor schools without impairing the high standards already established in Coloma and Eau Claire. First, it creates opportunities for quality education in an integrated environment in each of these three local school districts. In some instances, use of that opportunity depends on the interest and initiative of students and parents. Secondly, it includes introduction of innovative educational programs designed to improve achievement motivation and performance within the Benton Harbor schools.

It is well established that successful public education depends to a large extent on family and community support for its effectiveness. When substantial elements of the community abandon their schools their quality diminishes. It is equally obvious that a child's enrollment is not determined by government policy or judicial order alone. It is as much determined by parental decision. If parents perceive court imposed educational desegregation as unfair or inequitable overreaching by the court, they will do all in their power to oppose it. Likewise, parents under such circumstances frequently resort to withdrawing their children from schools out of fear or resentment or a combination of both feelings.

These practical considerations have not traditionally played a role in the judicial task of formulating and adopting a desegregation remedy plan. However, they cannot be ignored by this court. The goal of creating desegregated educational environments, if they are to be lasting and conducive to quality education, must have the support of parents. Recognized studies indicate that parental support is the single, most important factor in contributing to children's scholastic achievement.

The importance of the role of the parent in stimulating achievement was emphasized by Dr. Walberg in his testimony on the factors that contribute to achievement stimulation and achievement lag. There has been found a high correlation between the extent of emotional support from parents, parental interest in children's schoolwork, parental intellectual stimulation of children and a child's achievement and motivation.

To achieve desegregation and quality education, the school districts, the Intermediate School District, and the State Board of Education are directed to develop attractive incentives to interdistrict transfers that will expand minority enrollment in Coloma and Eau Claire and enhance desegregation in all three districts. Distinctive and imaginative magnet educational programs will be used at all grade levels throughout the three districts as a primary incentive to interdistrict transfer.

In addition, joint three district wide community and parent involvement is encouraged in several particular components of the plan. The court has directed that a committee of educators, students, parents, and interested community members be established to review existing discipline codes in the three districts. This committee is directed to develop a uniform code of conduct and discipline. It is the court's opinion that clear and unambiguous statements of conduct expected and limits on behavior, as well as procedures for uniform discipline, is crucial to the students' perception of fairness in the schools and ultimately to the success of interdistrict aspects of this plan. Within the Benton Harbor district, parent participation in school classrooms and extracurricular activity will be encouraged as a productive and necessary part of the achievement component of the plan. Finally, the court has established a Community Education Council made up of parents and concerned community members who are genuinely willing to support the desegregation effort that these schools are about to embark upon. The court seeks individuals willing to abandon fears and prejudices, willing to accept school desegregation and determined to make this plan for these districts a success. This group will play several roles including acting as liaisons from the community to the school boards and liaisons to the court reporting both successes and problems in implementation of the plan.

Parents and members of the three communities will be invited to attend public meetings where the components of the plan will be explained by persons who are familiar with its details. These opportunities for parent and community involvement will enable and encourage broad-based understanding of the processes and purposes of the court's plan. Communication among all elements of the community is crucial to success of this plan. The plan will be widely explained to the end that people who understand it will support the school districts in their efforts to implement it.

An innovative and unique component of the plan is an achievement and social skills intervention to be implemented within the Benton Harbor school system. I realize fully that federal courts are not equipped with any particular competence in developing educational policies or long-term solutions to educational problems. However, my decision to outline in some detail the process of intervention in this area has been made deliberately. It is a decision necessitated by the existence of chronic achievement problems that the school district itself has been unable to address.

The performance of fourth grade students on 1980 Michigan Statewide Achievement Tests indicate that at least 11 of the 21 elementary schools have "high needs" for improvement in achievement motivation and cognitive skills. Three of these 21 elementary schools have only kindergarten through third grade classes. No fourth grade achievement tests were given in those schools. All three junior high schools are identified as schools with "high needs", based on the most recent seventh grade performance on achievement tests. There is a high correlation between low achievement and racially-identifiable black schools.

This plan includes program components designed to generate community support, alter organizational features in schools involved, promote classroom innovations and enable individuals within the schools to change and adapt to racial changes in the schools and in their larger society. All of the components recommended in this plan have been features in at least one school system's desegregation plan or in one instance, in an inner-city achievement motivation project. Finally, each component offers considerable promise for helping to achieve desegregated education that benefits the students involved. In the end, the success of this effort depends on the resourcefulness and cooperation of persons within each of these three districts, in accepting desegregation and working cooperatively to everyone's mutual benefit. If the communities and school districts are able to work cooperatively in implementing each component of the plan, the plan promises to work effectively and to work now.

INJUNCTION OF PROPERTY TRANSFERS AND TUITION STUDENTS

The Eamon residential area which lies to the northwest of the Benton Harbor School District and has been part of the Coloma School District for the past ten years shall be transferred back to the Benton Harbor district. The small, four-room Eamon elementary school shall be returned to the Benton Harbor district as well. There will be no financial liability on the Benton Harbor district for purchase of this building. In addition, the defendant school boards and the State Board of Education are permanently enjoined and prohibited from initiating, encouraging, approving or granting a request for transfer of the Eamon area to the Coloma School District, or to any other school district.

Similarly, transfer of the Sodus II area, or any area of the Benton Harbor School District which includes any part of the Sodus II territory, is permanently enjoined. The defendants are enjoined and prohibited from initiating, encouraging, approving or granting a request for transfer of the Sodus II area out of the Benton Harbor School District to the Eau Claire School District or any other neighboring school district. In addition, the Eau Claire School District is permanently enjoined from receiving tuition students from the BHASD, except under the terms and conditions included in the interdistrict transfer aspects of this court's desegregation plan.

PUPIL REASSIGNMENT

A complete desegregation plan must be implemented within the Benton Harbor school system. The court is not directing that the school district adopt and implement the court's recommended student reassignment plan. The court is, however, directing that the district adopt a student reassignment plan that will eliminate racial identifiability of schools and achieve desegregation within all schools in the district. Any plan to be acceptable to the court must achieve the same, or a greater degree of desegregation as that achieved in the court's plan. In addition, the court recommends that the school district place a high priority on using a uniform grade structure which allows children in grades one through four to remain in the same school building. The school district should make every effort to use minimal additional transportation, without compromising the purpose of achieving desegregation.

Planning for student reassignment and transportation under an acceptable district-wide desegregation plan should be made the first priority of the Benton Harbor School District. Plans for student reassignment within the Benton Harbor district should be made by a staff team appointed by the superintendent, acting under the supervision and with the assistance of the court's representative. Their task should be completed and a plan for student reassignment adopted by the district by no later than May 12, 1981. The adopted plan must not be based on "phased/in" desegregation. It must be fully put in place on the opening day of school in the 1981-82 school year.

Fundamentally, any effective desegregation plan must desegregate the schools and eliminate racial identifiability of schools. Once faculty reassignment has been accomplished, and the marks of a school's racial identification have been corrected, the racial composition of the student body remains as a critical identifying characteristic of the school.

Having found a history of segregative practices in the Benton Harbor district followed by a default within that district it is within the equitable powers of this court to use racial ratios as a starting point in formulating the remedy plan. See, Swann, supra, 402 U.S. at 24, 91 S.Ct. at 1280. Benton Harbor's school population of 9,100 is approximately 77% black, 22% white and 1% other minorities. Seven of its 21 elementary schools and one of its three junior high schools are racially identifiable as black schools. Each of these schools has a black student population that represent 98% or more of the school's total enrollment. At least three schools are identifiable as white schools by their pupil population alone. The school district has not sustained its burden of showing, in the face of district-wide segregative practices, that any of these school assignments were genuinely non-discriminatory. Consequently, the racial identifiability of these schools must be eliminated as a part of this plan.

See footnote 6, supra.

Schools that are racially identifiable as white schools within the Benton Harbor School District followed by the percentage of their white student population are: Martindale — 71.9%, Millberg — 96.9%, and Pearl — 65.4%.

No fixed or undeviating degree of racial proportions of pupils in each school is required. The court has attempted to build in some flexibility in the use of racial ratios without compromising the purpose of achieving desegregation. However, the racial composition of the district as a whole provides a reference for determining what are or are not racially identifiable schools within the school system. A racially identifiable school is one that is substantially disproportionate in its racial composition when compared to the composition of the school district as a whole. Swann, supra, at 26, 91 S.Ct. at 1281.

Racial identifiability of schools must be eliminated as part of this plan in order to create an educational atmosphere where both blacks and whites are perceived as equal. This school district should strive to become a place where children, regardless of their race, are perceived and treated as equal in their status and in their ability to achieve. One-race schools are likely to be perceived by members of the black community as an affront. Racially identifiable schools perpetuate feelings of inferiority in one race and a perception among both blacks and whites that they are not, in fact, equals in the endeavors of public education. These schools act as reminders of past segregative practices within the district. In addition, minority students assigned to identifiably black schools are cut off from the majority culture which is widely reflected in standards both explicit and implicit, that determine success in our society. An individual may choose to separate himself or herself from the majority culture, but that separation should be chosen and not imposed by the public schools.

The Supreme Court long ago in Brown v. Board of Education, 347 U.S. 483, at 494, 74 S.Ct. 686, at 691, 98 L.Ed. 873 (1955) ( Brown I), identified the existence of one race schools and the exclusionary practices that create them as generating within black children "a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone."

Inevitably the court's primary concern with desegregation conflicts with other legitimate concerns. The court has attempted to accommodate other important educational interests without compromising the principal purpose of achieving desegregation.

The court's recommended plan uses pairings and clusterings of elementary schools in order to eliminate racial identifiability of schools. Inner-city, predominantly black schools have been paired with schools that presently have larger white student populations, to create eight elementary attendance areas. Student reassignments are to be made by the school district within each pair or cluster to achieve desegregation in each school building and each classroom. The court recommends that three predominantly white elementary schools be closed and their students reassigned to achieve desegregation.

Feeder patterns to the junior high schools are adjusted to achieve better desegregation. The minority population in the predominantly black inner-city Benton Harbor Junior High School (presently 98% black student body) is reduced to 78.6% of that school's enrollment. In addition, it is recommended that the district discontinue the use of space within the Hull elementary building for seventh and eighth grade classes.

There is one senior high school in the district. Consequently, all students within the system will attend the Benton Harbor High School.

The pairs and clusters in this plan have been drawn in such a way to minimize required transportation. However, given the location and capacities of existing school buildings and the racial concentrations of its population, it is impossible to achieve any meaningful desegregation of this school district without some mandatory transportation of its pupils. It should be remembered that transportation by bus has been commonly used within this school district since consolidation in 1965. It is not new to the district, nor is it a new experience for many of these children.

Attendance assignment in pairs and clusters allows people who come together in early elementary school, to remain together through their elementary and secondary education in the system. Opportunities for children to establish and maintain stable peer relationships is important to their personal development and to development of racial understanding. In order for children of different races to achieve mutual understanding and respect for one another, they must be brought together and allowed to continue to have contact with each other over a period of years, regardless of their residential neighborhood. Under this pairing and clustering plan, children who are brought together for grades one through four can expect to be assigned together to a second elementary school for grades five and six, to the same junior high school and finally to senior high school. Achieving this planned continuity will, of course, depend on whether the child and his family remains in the original, first grade neighborhood. While consistent continuity for each child cannot realistically be expected, it is nonetheless important to create the opportunity for children to develop and maintain stable peer relationships. This assignment plan will achieve that important purpose for at least some of these children.

With the elimination of the use of space in Hull elementary school for seventh and eighth grade classes, junior high feeder patterns have been established to maintain a neighborhood pattern in junior high attendance as well. The district is divided into two junior high school attendance areas along an east-west access. Children from the northern half of the district attend the Benton Harbor Junior High School and those in the southern section of the district attend the Fairplain Junior High School.

Elimination of racial identifiability of schools can most simply and consistently be achieved by the school district by using a guideline based on the racial composition of the district as a whole. The court expects the school district to use the following guidelines for pupil reassignment in this or any other desegregation plan that it may adopt. The recommended limits on variation and racial population in each school is based on the percentage of black representation in the student population of the district as a whole. A constant increment of ten percent is used to define variation limits of racial composition in each school.

In the Benton Harbor district, based on the October, 1980, student attendance count, black students at all grade levels represented 77% of the total school's population. Thus, recommended limits for the percentage of black student population in each school building should be 67% to 87%. Under the court's recommended plan, most elementary schools would have black pupil attendance within a five percent deviation from the racial composition of the school district as a whole. The court emphasizes that this guideline for racial composition in each school is simply that, a guideline. The school district should keep this degree of racial mixing as its goal in any plan that it adopts. It is, however, not an inflexible, undeviating rule that must be applied in every instance. Exceptional circumstances occasionally can justify exceptions to pursuant of this goal. However, the goal remains.

Three elementary schools under the court's recommended plan have black populations that fall below the court recommended variation. These are Fairplain East with a 64.7% black population, Hull School with a 60.3% black population and Stump-Nickerson School with a 44.1% black population.

The continued disproportionately low percentages of black student population in both Hull and Stump-Nickerson schools are acceptable because they result from an effort to accommodate other legitimate educational needs. It was difficult, if not impossible, to establish a uniform grade structure throughout the school district, given the location and capacity of existing school buildings without making some compromise in the degree of desegregation introduced into both of these schools. In my judgment, keeping students together through grades one through four in one school building for these crucial, early elementary years is important to their development and to activities and innovations expected to be introduced in the achievement component of the court's plan. I have recommended increasing the student-teacher contact in grades one through four to two years. Under the court's plan, this can be achieved. A uniform grade structure is used within the elementary schools in each pair and cluster with the exception of the Stump/Nickerson attendance area. In addition, the Stump/Nickerson school has a special education program and a facility designed for physically handicapped students. The court has avoided any disruption of this educational plan. These deviations from the court's established desegregation goals are legitimately warranted by these educational concerns.

Elementary Pairs and Clusters.

Table 1 shows how the elementary schools are paired and clustered under the court's plan to eliminate racial identifiability of schools within the school system. To accomplish this desegregation, eight attendance areas are created, including groups of two, three and four schools. Groupings of two or more schools in one attendance area are commonly referred to as a "cluster". Two 2-school pairings are made, three clusters of three schools, one cluster of four schools, and finally, two schools, Fairplain Northeast and Stump/Nickerson are left to continue with their existing attendance area. Fairplain Northeast has a 74.1% black population which approximates the racial composition of the district and indicates the presence of an integrated neighborhood. The Stump/Nickerson school has a low black population (44.1%). However, it has been left intact to accommodate other educational needs. It has not been included in any pair or cluster under the desegregation plan to avoid disruption to students in its special education program.

Student reassignment to achieve acceptable racial proportions in each school will be done within each attendance area. For example, in attendance area number I, any student who lives within the present attendance areas for Morton, Northshore, Lafayette, or Eamon schools knows that he or she will attend first grade through fourth grade in the Morton school. These same students will attend fifth and sixth grade in either Northshore or Lafayette schools. No student in cluster number I will be assigned to a school outside of that cluster to achieve desegregation within the school district.

Under the plan, kindergarten classes are held in some fifth and sixth grade school buildings. This is done to avoid disruption to kindergarteners in the first year of school desegregation. Within the second and third year, under the adopted desegregation plan, kindergarten classes should all be moved into kindergarten through fourth grade school buildings. TABLE I fn__

1980/81 enrollment estimated to be 69 non-black, 0 black

Includes 69 students currently assigned to Eamon in the Coloma School District

These eight attendance areas are depicted graphically on a map of the Benton Harbor School District included in Appendix B at the conclusion of this opinion.

The principals of elementary schools within each cluster shall form a Principal Cluster Council. These councils shall meet monthly, in the first semester under the desegregation plan. Thereafter, they shall meet at least quarterly through the school year. The purpose in establishing Principal Cluster Councils is to provide opportunities for meaningful dialogue on problems related to desegregation.

Junior High Feeder Patterns.

Student assignment to junior high schools under the plan are shown on Table 2. Use of the Hull Elementary School facility for grades seven and eight is discontinued. Students who would normally attend Hull school for junior high school under existing attendance plans are reassigned to the Benton Harbor Junior High School. Each elementary pair or cluster is assigned as a unit to one of the remaining junior high schools, with the exception of the King/Britain/Fairplain West/Fairplain Northwest cluster. When these students reach junior high school age, children attending King and Britain schools will go to the Benton Harbor Junior High School. Fairplain West and Fairplain Northwest students will attend Fairplain Junior High School. Benton Harbor Junior High School will have an estimated 78.6% black student population and Fairplain junior high school a 68.8% black student population. TABLE II Feeder fn_

Junior High population projected on a factor of 25.4% of elementary population

These junior high school feeder patterns are depicted graphically on a map of the school district included in Appendix C at the conclusion of the court's opinion.

School Closings.

The court recommends that the school board close three elementary schools under the court's plan. In the 1980-81 school year, the school districts closed three elementary schools: Columbus, Sodus and Spinks Corner. Columbus was an inner-city school with an 84-year-old structure. Sodus and Spinks Corner were both small, rural schools at the periphery of the district that had suffered significant reduction in student enrollment in the 1970s and were operating at less than half of their full capacities at the time they were closed. Sodus was a three-room school in the farthest southern portion of the school district with approximately 30 students attending it. Spinks Corner was a one-room school on the far east end of the school district, with only 28 students attending it.

The court recommends closing of three additional schools. They are: Eamon, Millburg, and Martindale. Each one of these schools is racially identifiable as a white school, based on their student enrollment and faculty composition. If these schools are closed, students from their attendance area can be reassigned in such a way to enhance the objectives of school desegregation.

The Eamon Schools student population is 100% white, Millburg has a 3.1% black student population and Martindale a 28.1% black student population.

Each of these three schools has a fairly limited capacity. Eamon is a small, four-room school on the farthest north end of the district, with a 100-student capacity. Since its transfer out of the district in 1972, it has been part of the Coloma School District. It has a 100% white student population. Millburg School is a 56-year-old school building in the northeast corner of the district. It has a capacity of 200 students, but is presently operating with an enrollment of approximately 80 students. Black children make up 3.1% of its student population. Martindale School is also a rural school, directly southeast of the Eamon School. Its capacity is 240 and it has been operating with an enrollment of approximately 195 students. Its black student population represents 28.1% of its total enrollment. Closing of these schools would be both cost effective, in reducing operating costs and serve the purposes of the court's desegregation plan.

Transportation.

The plan calls for transportation of approximately 2,500 students. The school district presently owns 32 buses. These vehicles can be used to transport students for the purpose of achieving desegregation. If the opening hour of elementary schools can be adjusted so that it is different from the high school opening time, some buses can be used for two pick-up and delivery runs each day. The pupil reassignment committee should explore the possibility of using an adjusted opening hour for elementary schools to make possible efficient use of the districts existing bus fleet. If adjusted opening hours for elementary schools can not be used, pupil reassignment under this plan can be accomplished with the purchase of not more than eleven, 65-passenger buses.

Dr. Franklin H. Westervelt, Professor of Engineering and Computer Sciences and Director of the Computer Service Center at Wayne State University, has been appointed as the court's transportation expert. He will be available to the Benton Harbor School District to assist it in planning a transportation schedule that makes efficient use of the district's existing fleet of buses and minimizes the need to purchase additional buses.

If additional buses are needed to accomplish transportation under this school district's desegregation plan, the district shall promptly inform the court of the number of additional buses needed to be purchased and explain the reasons why the plan cannot be accomplished with existing buses, presently owned by the district.

MAGNET PROGRAMS AND INTERDISTRICT TRANSFERS

The court has found that the State Board of Education, the Berrien County Intermediate School District, and the Coloma and Eau Claire School Districts have each contributed to racial isolation of students in the BHASD and to the problems related to racial separation and isolation experience in that school system. These districts are obligated then to participate in a remedy that creates quality educational opportunities for their own students and Benton Harbor students in an integrated school environment.

A plan should be developed that includes a number of distinctive magnet programs designed to attract students from throughout the three school district area. These attractive educational programs should include opportunities for students at all grade levels from kindergarten through twelfth grade. The plan should advance the positive goal of improving the quality of education available to all children in the Benton Harbor, Coloma and Eau Claire schools, whatever their race or ethnic origin. The quality of the education experience available to students in these programs should be such that the plan will motivate and encourage voluntary transfer of students between Benton Harbor and Coloma and Benton Harbor and Eau Claire, in such a way that all three districts will be further desegregated.

Dean Michael J. Stolee, the court-appointed desegregation and education expert, has recommended that a committee be made up of the superintendents of the BCISD, the BHASD, Coloma and Eau Claire School Districts and a representative of the State Board of Education to begin planning immediately for implementation of wide-ranging programs that will facilitate voluntary pupil transfers between the three districts. I am directing that such a committee made up of these members be constituted immediately to plan and prepare programs, to the extent feasible, for the 1981 fall semester. The process of planning is undoubtedly complex and will continue into the new school year with the expectation that these programs will be expanded in the 1982-83 and 1983-84 school years.

It is impossible to predict to what extent planning will be completed and readiness will be achieved for implementation by the fall of this year. The court does not expect achievement of unrealistic or unattainable goals within a limited time. However, minimally, a three-district vocational, technical and work-study program in cooperation with local businesses and industry should be established in the BHASD. Coloma and Eau Claire school districts are both directed to discontinue any existing interdistrict vocational educational programs with other school districts in order to enhance the success of the cooperative effort in vocational education with the BHASD. These three districts shall work together to solicit participation of area businesses and industry in a joint work-study program for the benefit of the high school students in the three districts.

The school districts are directed to employ teachers and administrators that are reasonably necessary to work on this joint planning process during the summer months. In addition, the State Board of Education shall contribute personnel to assist in planning and in the fall implementation of this component of the plan. The first task to be undertaken by this committee shall be the conducting of a needs assessment in the three school districts. This effort should identify the educational program needs and gaps in existing educational programs based on information from students, parents, educators and other residents. The committee should become familiar with magnet education programs used to compliment or motivate desegregation in other school districts such as Boston, Massachusetts; Dallas, Texas; Cincinnati, Ohio; and Milwaukee, Wisconsin. The committee shall explore the use of enriched educational programs in the arts, sciences and foreign languages at the elementary and secondary levels in this component of the plan. At the elementary level, the committee shall explore the use of the Montessori learning system in one or more elementary schools situated geographically to attract an inter-racial student population from more than one district.

Ultimately, the task of the Magnet Programs Committee is to develop quality, cooperative educational programs that will be attractive to students and their parents and to locate them throughout the three districts in such a way that black Benton Harbor students will voluntarily attend schools in Coloma and Eau Claire, and white students from the outlying, rural districts will likewise be motivated to attend schools in the Benton Harbor district.

It is the court's expectation that 10% to 25% of the students attending magnet programs will be interdistrict transfer students, who by their race contribute to decreasing racial isolation in each school system. Seventy-five per cent of positions in any magnet program should be open to students within the school district where the program is located.

The school boards jointly shall have the authority to employ consultants to assist and advise the Committee in the development, implementation, evaluation and continuing improvement of these distinctive education programs for the next two school years.

The committee shall establish and recommend to the school boards an annual calendar and daily opening and closing times for schools for the purpose of facilitating transfer of students among the three school districts. The court-appointed transportation expert shall make himself available to the committee to establish workable transportation arrangements for students attending schools in a district other than their residential district. Members of the committee should discuss and resolve questions such as scope of authority over programs, personnel and resources used in these distinctive magnet programs, division of responsibility and handling of financing and make recommendations on these issues to the school boards of each district. Joint school board decisions shall be reached on these issues. The court is concerned that education programs used in this component of the plan be perceived by the students, parents, teachers, and administrators as joint three-district-wide programs. To accomplish that end, some joint governing of these programs must be established, perhaps in the form of a joint committee with representation from each school board. The committee should recommend to the school boards an appropriate structure for joint governing of these magnet programs, that will include the involvement of all three districts in assuring the vitality and quality of these educational programs.

Decisions about the content and location of distinctive and attractive magnet programs to be included in the 1981-82 school year should be completed by July 1, 1981. A report including information on these magnet programs and any planning completed for the 1982-83 school year shall be submitted to the court, to the three school boards, the Intermediate School Board and the Community Education Council by July 1, 1981. Proposed literature explaining magnet programs and the process for electing participation in interdistrict programs should be included in this report and submitted to the three local school boards for their approval. The school boards should complete their review and comments on magnet programs and the accompanying literature by July 15, in order to allow sufficient time for the literature to be printed and prepared by the end of July. Clear and articulate information about magnet programs and opportunities for interdistrict transfer shall be distributed to all students and parents in the three districts by July 31, 1981.

Each school district shall designate one or more desegregation representatives to go to schools within its district and meet with students and parents to explain the content of the magnet program and the interdistrict transfer program and encourage students to participate in these educational opportunities. It is recommended that an individual with experience in elementary education or elementary school administration be responsible for this task within the elementary schools. An individual with similar professional experience in secondary education should be responsible to encourage student interest and participation in magnet programs and interdistrict transfers at the junior high school and senior high school levels.

Interdistrict Transfers:

In addition to interdistrict transfer for participation in attractive magnet programs, any student, at any grade level, who is a resident in the Benton Harbor School District shall be given an opportunity to elect to attend school in either the Coloma or Eau Claire District. Likewise, any resident at any grade level, who is a resident in the Coloma or Eau Claire School Districts should be given an opportunity to elect to attend school in the Benton Harbor School District. The exercise of this choice should be limited to elections that will result in decreasing racial segregation in each school system. Educational and transportation costs related to the exercise of choice of interdistrict transfers shall not be borne by the student or parent or guardian of the student involved, but shall be paid by the state and the district as stated below in the section of this opinion which discusses allocation of financial responsibility for this desegregation remedy.

Exercise of Choice:

The period for exercising a choice to participate in either of these programs in the 1981-82 school year shall begin on August 1, and end on August 20, 1981. In future years, the period for exercising choice to participate in a magnet program or to attend a school in another school district, under this plan, shall begin no later than May 1 and shall be open for one month, in the school year preceding the year for which the choice of attendance is made.

No student who exercises his choice during the open period shall be given a preference because of the date within the period on which he or she exercised that choice. A failure to exercise a choice within the open period shall not preclude any student or parent from exercising a choice at any time before the opening day of school for the year for which the attendance choice applies. However, the preference of any student exercising a late choice may be subordinate to the choices of students made before the expiration of the spring open choice period.

Public notice of the open choice period shall be published conspicuously in at least three newspapers of broad circulation within the three district area. This notice shall be printed at least three times in each newspaper, within the 30 days immediately preceding the beginning of the spring open choice period. Published notice shall explain the content of distinctive and attractive magnet programs. In addition, the notice shall explain the fact that the opportunity is open to students and parents in the three districts to elect to attend or send their child to attend any of the magnet programs or to exercise the choice of interdistrict transfers to schools where a student, by his or her race, will contribute to desegregation of the school population. The notice shall state clearly that any educational or transportation costs connected to interdistrict transfer or attendance in a magnet program will not be borne by the student or parent or guardian of the student. The deadline for exercise of such attendance choices shall be conspicuously stated, with a statement that choices may be exercised until the opening day of school, but that a choice made beyond the deadline may affect the preference of the student for a magnet educational program, should the program be full.

No interdistrict transfer made by a student under this plan to a district other than the district of his or her residence will jeopardize or adversely affect the eligibility of that student to participate in interscholastic athletics. Once a student has elected an interdistrict transfer, if he or she should return to the home school district, that student's participation in interscholastic athletics shall likewise not be affected by that decision. This information should be included in any literature distributed to students and parents describing opportunities to participate in magnet programs and interdistrict transfers under the court's plan.

Superintendents Council.

In order to assure communication among the school administration of these three districts, the superintendents of Benton Harbor, Coloma and Eau Claire shall form a Superintendents Council. This council shall meet at least monthly through the first year under this desegregation plan. These meetings will provide opportunities for meaningful discussion, at the highest level within the administration, of problems related to desegregation and interdistrict aspects of the plan. This dialogue among superintendents should include ongoing planning, discussion of constructive and cooperative solutions to problems in order to prevent repetition of problems relating to desegregation in the schools.

Each superintendent will be responsible for the safety of students who transfer into his school district under this desegregation plan. These superintendents should work together to devise plans that will prevent threats to the personal safety of any child participating in an interdistrict transfer program.

Dr. Stolee will be available to attend Superintendents Council meetings, to consult with and advise superintendents in solving problems that arise in the course of this desegregation process.

ACHIEVEMENT AND SOCIAL SKILLS

The problem of most concern to the court in addition to the racial separation and isolation of large numbers of children in these three school districts is the chronic low achievement levels of students in the Benton Harbor School system. At least 11 out of 21 elementary schools and all of the three junior high schools in the district have been identified by students performance on the 1981 state-wide achievement tests as having "high needs" in at least one, and more frequently in both, of the areas tested, i.e., reading and mathematics. These facts paint a picture of a school district in desperate need of assistance.

Dr. Stolee, the court's appointed expert, has recommended to the court that its plan include a program to improve the quality of instruction provided to students in the Benton Harbor School District and to raise the level of student achievement, until achievement within the district reaches the average attained by Michigan students in the Michigan Educational Achievement Program (MEAP). Establishment of an achievement component in the Benton Harbor schools is crucial to any complete and effective remediation of harm that has resulted from defendant's unconstitutional segregative conduct. This aspect of the court's plan is important to a complete remedy in at least two respects. In its findings on liability, the court concluded that system-wide segregation, such as the Benton Harbor district has created and the State Board of Education condoned and perpetuated by its inaction, results in measurably reduced achievement. In addition, of course, student achievement levels in the Benton Harbor district become particularly important in any voluntary desegregation plan. If Benton Harbor schools are going to attract students from Coloma and Eau Claire the schools must offer quality education and an atmosphere conducive to productive educational achievement.

The court in its Phase I opinion on liability said: "Segregated black children tend to infer that they are isolated from the white majority because of their race, and, drawing on the observations of the deprivations experienced by black adults, they also tend to infer their own potential as limited because of their race. It is not surprising that black children have evidenced reduced self-esteem in a segregated environment and concomitant diminished motivation to succeed. The culturally-induced lack of self-esteem and diminished motivation in turn operate to measurably reduce achievement." See, Berry v. Benton Harbor, 442 F. Supp. 1230, at 1289 (D.C., 1977).

Experts in education recognize that certain innovations in curriculum and in interpersonal relationships within the classroom exist and have been used successfully in other communities to reverse developmental and achievement lag. The court received testimony from Dr. Martin Maehr, Director of the Institute for Child Behavior and Development at the University of Illinois at Champagne, on the question of positive classroom intervention for the purpose of remediating damage to social and psychological development in a child. In addition, Dr. Herbert Walberg, a professor of urban education and human development and learning at the University of Illinois at Chicago Circle, has testified to similar classroom interventions that have improved achievement motivation in children. Effective classroom techniques that will improve achievement and task performance in children should be designed and put in place in the Benton Harbor Schools. These interventions should be aimed at improving self-esteem, achievement motivation, social skills, coping, behavior, and vocational and career awareness in students at all grade levels.

Research and writing on the issue of classroom interventions designed to improve self-esteem and achievement motivation include the following: Aronson, E., Stephan, C., Sikes, J., Blaney, N., and Snapp, M., Cooperation in the Classroom, Beverly Hills: Sage Publishing Company (1978); Asher, S.R., "Children's Peer Relations", in M.E. Lamb, Editor, Social and Personality Development, New York: Holtz, Reinhart and Winston (1978); Atkinson, J.W. and Raynor, J.O., Editors, Motivation and Achievement, New York: Wiley (1974); Carfield, J. and Wells, E.C., 100 Ways to Enhance Self Concept in the Classroom, Englewood Cliffs, New Jersey: Prentice Hall (1978); Dweck, C.S. and Reptuci, N.D., "Learned Helplessness and Reinforcement Responsibility in Children", 25 J. of Personality and Social Psychology, 109 (1973); Johnson, D.W., and Johnson, R., Learning Together and Alone: Cooperation, Competition and Individualization, Engelwood Cliffs, New Jersey: Prentice Hall (1975); McClelland, D.C., The Achieving Society, New York: Free Press (1961); Purkey, W., Inviting School Success: A Self-Concept Approach to Teaching and Learning, Belmont, California: Wadsworth (1978).

This component will be entitled the Social Skills and Achievement Component of the court's plan. It shall be developed, implemented and evaluated by the school boards and the school district superintendent, under the supervision and with assistance from Dr. James P. Comer, of the Yale University Child Study Center. The court cannot emphasize too strongly, the critical importance of this component to a complete equitable remedy of the adverse effects of defendant's segregative conduct. The court expects the full cooperation of all staff and administration in the Benton Harbor School System working toward success of this intervention project. In addition, the court expects cooperation and assistance from the State Board of Education, and the Berrien County Intermediate School District in this venture.

These innovative efforts designed to remedy developmental harm may be extremely difficult and in some instances children may require one-on-one contact to achieve positive changes. The nature of the program will be determined by an assessment of the nature and extent of the damages, the obstacles to effective learning and achievement and the needs identified in the schools. The very sensitive areas of human development involved will require a high degree of competence in the staff members with responsibility for this component.

If these children have learned to believe that their situation in school or in life is hopeless, efforts in this component should try to teach them that there are opportunities for them and to believe in themselves as capable of operating effectively in new experiences. Before children can achieve and operate effectively, they must perceive themselves as capable of doing things if they try. That things are worth doing. That there are possibilities and opportunities open to them where they can achieve and succeed.

This component should begin with an evaluation of the Benton Harbor School System using diagnostic techniques, achievement testing, and classroom observation. Evaluators and teachers together should identify obstacles to effective learning and achievement and needs of students and faculty which must be met in order to overcome these obstacles.

The existence of these developmental and achievement problems demonstrate the destructiveness of negative racial attitudes and the severe impact on children and the quality of their lives that result from racial isolation that is not chosen but is imposed. These problems are undoubtedly complex. Consequently, it may take several years of dedicated work by competent professionals to improve achievement and performance levels in children in the Benton Harbor Schools. The court does not intend to put a fixed limit or termination date on the activity connected with this component. The court will retain jurisdiction to supervise the progress and problems in this component and reserves the right to make additional orders related to this achievement component as required to fully effect a complete, equitable remedy. The goal of persons working within this component will be to raise the level of student achievement, until achievement within the district reaches the average attained by Michigan students in state-wide achievement tests. Once that goal has been achieved, the program will be phased out over two additional school years.

The court has become familiar with the successful work of Dr. James Comer dealing with developmental and achievement problems in two inner city elementary schools in New Haven, Connecticut. Dr. Comer is a professor of psychiatry at the Child Study Center of Yale University, and Associate Dean of the Yale University Medical School. Together with a staff of professionals, he has conducted a project in the Baldwin and King elementary schools in the inner city of New Haven, Connecticut, beginning in 1969. The project has been funded by a Ford Foundation Grant and Title I funds granted to the New Haven Public School System. Baldwin and King Schools are both predominantly black inner-city schools, that fell 33rd and 32nd in achievement levels among the 33 elementary schools in New Haven. After several years of involvement by the Yale Child Study Center team, achievement in these schools had improved to the extent that students in these schools scored the highest achievement scores of the 22 inner-city schools within the city.

Interventions used in this project and identified as having resulted in improved behavior and task performance in the children in these elementary schools are described in Comer, "Improving the Quality and Continuity of Relationships in Two Inner-City Schools", 16 Journal of Child Psychiatry, No. 3, at 535 (Summer 1976), in Comer, "The Education of Inner-City Children", 3 Grants Magazine No. 1, at 20 (March, 1980), and in Dr. Comer's recently published book, School Power: Implications of an Intervention Project, New York: Free Press (1980).

The Baldwin-King intervention has been based on the premise that application of behavior sciences in schools and to classroom problems can create a social environment where children will learn more effectively and be motivated and able to achieve. The program has focused on efforts to improve the quality of relationships within the schools and to address developmental needs of children. The project staff found that behavior and developmental problems are soon experienced by children as academic failure. This failure leads to student frustration, anger, conflict, self-doubt, withdrawal and poor achievement. Improvement in the quality of relationships within the schools and increasing the period of contact between teacher and child to two years were seen as extremely important aspects of the program, resulting in the greatest improvement in behavior and task performance in the children.

Because of his exceptional success with similar problems in the New Haven School System, I have invited Dr. Comer to serve as a consultant to the Benton Harbor Area School District School Board in the area of social skill and achievement development. He has advised the court of his interest and willingness to participate in this undertaking. He intends to make an exploratory trip to visit the school district before the end of this school year. I have every confidence that Dr. Comer is qualified to undertake the task of developing a social skills and achievement component of this remedial plan. In addition to his competence, I believe that he will be able to establish a high degree of trust with the Benton Harbor School administration, staff, parents and students.

Dr. Comer will be responsible for working with the school district in developing, implementing, and finally evaluating, a social skills and achievement component of the court's plan. The threshold task for Dr. Comer will be to conduct an evaluation of the elementary schools and junior and senior high schools in the Benton Harbor School System. This evaluation process should use diagnostic techniques, achievement testing and classroom observation. Teachers should be given adequate release time to discuss with members of the evaluation team their perceptions of problems and student and teacher needs within the school system. He is encouraged to use any staff reasonably necessary to conduct a comprehensive evaluation, including qualified graduate students. An evaluation report and recommendations for an intervention program should be submitted to the court the school board and the Community Education Council by November 1, 1981. Recommendations in this component should include plans, if appropriate, for coordination of this component with in-service training workshops and with the work of the in-service team in the schools.

The program shall begin no later than at the beginning of the second semester of the new school year. Dr. Comer will participate in the process of staff hiring for this component, in cooperation with the superintendent and members of the Benton Harbor School Board. In addition, he will act as a consultant to the social skills and achievement team and evaluate the performance of the team, reporting to the school board and the court on the accomplishments and problems of this component at the end of each semester.

In an effort to encourage and enhance the healthy cognitive, social and psychological development of children in the Benton Harbor schools, the court recommends to the school board that students entering grades 1, 2 and 3, in the next school year, remain with the same teacher through the 1982-83 school year. There are, of course, benefits and negative aspects to children remaining with the same teacher for a two-year period. However, the court is confident that the benefits gained from this change will outweigh any problems that it might create.

Among experts in the area of child development, it is recognized that the healthy, cognitive, social and psychological development of a young child requires affection, stimulation of inherent potential and continuing contact with a mature adult. By increasing the period of contact between teacher and child to two years, teachers will have a greater opportunity to achieve more than superficial insights into the personal needs and problems these children are experiencing. This should facilitate early identification of and attention to children who are at high risk of suffering academic failure. In the course of two years, teachers should have more opportunities for contact with parents. These contacts should be used by teachers to consult about children's needs, to develop better relationships with parents and to encourage parents' participation in the classroom, extracurricular activities, and school events. Pare

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