The boundary lines of the original kindergarten through twelve schools have remained unchanged for the most part since they were originally established. In 1953, there was a change in the line between the Emerson and Roosevelt Districts from 20th Avenue to 19th Avenue which affected the students from grades seven through twelve who lived in the area affected by the boundary change. The plaintiffs contend that this shift was made in order to put all of the students in these grades from the Dorrie Miller housing project, which is occupied by Negroes, in the Roosevelt School, a predominantly Negro school, rather than the Emerson School which is a predominantly white school, for the purpose of segregating the races. The defendant, on the other hand, claims there were no racial considerations involved in this change. The change was made on August 26, 1953 after a careful study had been made by the school boundary committee. The report of the Boundary Committee reads as follows: "Introduction:

"The School Boundary Committee at their meeting, August 26, 1953, recommended that the south line of the Emerson School Boundary, grades 7 to 12, be changed from 20th Avenue to 19th Avenue. That is, to change to a line running East and West along 19th Avenue from Virginia Street to the City Limits.

"A. Reasons for Change:

"1. Because of the completion of the Dorrie Miller Project, it was necessary to redefine this Emerson Boundary Line. The present line (20th Avenue) divides the Project Area in half. Also, 20th Avenue is not marked when it reaches the Project Area. It is not considered good for children of a closely knit community, such as the Project, to attend different schools.

"2. Another consideration faced by the committee was the fact that in the Pulaski Area, and in Aetna, some 1200 new homes have been built or will soon be completed. On the average, each home represents slightly over one grade school child. So these facts had to be evaluated carefully in shifting this school boundary.

"B. Effect on Emerson and Roosevelt :

"1. As a result of this boundary change, there will be less than ten children shifted from one school to the other at the present time. This is because:

"a. Over 90% of the families moving into this area have children less than twelve years old.

"b. Students already enrolled in the 7-12th grade level are permitted to remain.

"2. It will be from three to five years before there may be any increase of enrollment either at Emerson or Roosevelt at the 7-12th grade level because of the younger families in the area, as well as the fact that Pulaski plans to enlarge its grade capacity to include the 7th and 8th. "C. Other Possibilities Considered:

"1. One suggestion considered was to move the boundary line from 20th Avenue to 15th Avenue. However, consideration of the capacity of the schools, distance of travel of the students, indicated that this was not feasible.

"2. Another suggestion was to keep the line at 20th Avenue, until it reaches Ohio Street, and then North on Ohio to 19th Avenue, and then East to the City Limits.

"Again at this time only about six 7th graders would be affected by this move. Just south of Pulaski School, between 19th and 20th Avenues, there are 176 new family units. It will be four years until many of this group are in High School.

"The majority of the committee members believed that there was an advantage of making boundaries along straight lines. Since the 19th Avenue line would be the line on one side of Ohio Street, they believed it could just as well extended over to Virginia.

"D. General Considerations:

"The committee believed that this should be considered as a temporary boundary line for this year. More facts about the movement of population into these areas will have to be obtained before making long range plans. The development of Pulaski School will also affect any future recommendations." There was also testimony at the trial that plans were then under way for the construction of a new junior high school on the Roosevelt campus which comprises a large area and permitted the construction of additional facilities on

the site in accordance with the requirements of the State Department of Education, whereas the Emerson land area was much smaller and would not permit the expansion of the facilities in accordance with the requirements of the State because of the lack of sufficient ground.

The plaintiffs only other serious contention that redistricting was done for the purpose of maintaining Negro students in a school separate from white students was in the Washington Elementary School district. The Washington School district was originally a rectangular area approximately fifteen blocks east and west by eighteen blocks north and south. The Washington School building was located in the northwest quarter of this section. When the school population in the area became too great to be accommodated in the Washington School because of new housing in the southern portion of the district, the Locke School was constructed and was located in what was roughly the southeast quarter of the district, approximately eight blocks south and three blocks east of the Washington School. After the Locke School was built, the former Washington School district was divided into two districts by dividing the area at 19th Avenue which required all of the students south of the avenue to go to the Locke School and all of the students north of the avenue to continue to go to Washington. As a result, Locke, in the 1961-1962 school year, was populated by 99 per cent Negro students whereas Washington School had a Negro population of twenty-four per cent. Plaintiffs contend that by drawing the boundary of the new districts north and south along Whitcomb Street that the percentage of Negroes at both schools would have been approximately equal. The defendant, however, contends that drawing the boundary line as suggested would require students in the two districts to travel a much greater distance to get to school and that students living in the southernmost portion of the district near Whitcomb Street would have to travel fourteen or fifteen blocks to school and go directly past the Locke School which is located approximately three blocks from their homes. Likewise, students living in the northern part of the Washington district near Whitcomb Street would travel approximately the same distance to Locke School and in order to get there would have to go within two blocks of the Washington School which, at most, would be five blocks from their homes. The defendant contends that there was no racial consideration in the location of the schools and the only consideration in the location of the Locke School was the availability of land in the areas which would best serve the students within the area. At the time Washington School was constructed there were no racial considerations involved.

With the two exceptions mentioned above, there is no serious contention on the part of the plaintiffs that the boundary lines of the various school districts were especially drawn for the purpose of segregating the races in the public schools.

The Board of School Trustees is a bipartisan Board consisting of five members appointed by the Mayor for staggered four year terms. The Board elects its own officers. Dr. Leroy W. Bingham, a Negro, is now the Board's President. He testified that it was the policy of the Board to construct and to enlarge school buildings where they are needed for the purpose of serving students in the area, whether that area be populated by Negroes or whites, or by both races. He also testified that there was no policy of segregation of races in the Gary school system; that beginning with the school year 1961 the Board adopted a policy of total integration of its staff from the administrative level on down. He also stated that in order to alleviate congestion in the more heavily populated areas, the Board adopted a policy of transferring students from several congested areas to less congested areas in order to try to balance the loads in the various buildings. He also testified that this was done without any consideration of race whatsoever, but for the purpose of relieving congestion wherever possible and using every building to its total capacity; that the policy of the Board was to make complete use of the facilities available for the benefit of all of the children in the school system without regard to race so that all students could be afforded the best education possible.

Mr. Samuel Moise, immediate past president of the Board, also testified to the same effect and it was stipulated by counsel that the other three members, if called to testify, would substantiate the testimony given by Dr. Bingham and Mr. Moise.

Relative to the integration of the staff, a Negro occupies the position of Assistant Superintendent of Schools in charge of the Bureau of Research and Publication. He is one of three assistant superintendents, all of whom have equal rank. The Coordinator of Secondary Education is also a Negro as is the Supervisor

of Special Education, the Mathematics Consultant in charge of the Mathematics program in secondary education, a coordinator in the Food Services Department, elementary supervisor and a member of the Special Services Department who devotes a large part of his work to the problem of proper boundary lines for attendance areas. There are 18 Negro principals and 38 white principals.1 The teaching staff consists of 7982 Negro teachers, 8331⁄2 white teachers and 3 orientals. All schools with the exception of one small elementary school have at least one Negro teacher on the staff. All but five of the forty-two schools have at least one white teacher.

2

As a result of the policy of transferring students from overcrowded schools to less crowded schools, 123 children, 92 of whom are Negroes, have been transferred from Tolleston, a predominantly Negro school to Mann, a predominantly white school. Eighty-seven Negro students have been transferred from Tolleston to Edison, a predominantly white school. One hundred and forty students, 120 of whom are Negroes have been transferred from Froebel, a predominantly Negro school to Chase, a predominantly white school. In most, if not all instances, the transferred students are transported by bus at a cost of $20.00 a day per bus load and because of the cost and other factors the Board hopes to utilize facilities within walking distance to the schools as soon as possible. It was stated that this transfer policy, now in effect, is intended to be temporary and was instituted to alleviate overcrowded conditions wherever possible and was not done because of any racial considerations.

The transfer of students generally, from one school to another, is handled on an individual basis. There is no transfer as a matter of right from one school district to another, but on the application of an individual student or his parent, the reason for the transfer request is considered and is allowed or denied depending upon the apparent reasonableness and desirability of the transfer and no racial factors are considered in allowing or disallowing a transfer.

From time to time protests have been made to the School Board by Negro groups concerning the construction of contemplated buildings on the ground that the planned location would create a racial imbalance in the school. The evidence indicates that consideration was given to all of these protests and that on one or more occasion the construction of schools already planned for a certain location was held up or cancelled because of these protests.

[1, 2] From a consideration of all the evidence and the record, the Court can not see that the Board of Education has deliberately or purposely segregated the Gary schools according to race. In the Court's opinion the plaintiffs have failed to sustain their burden of showing that the School Board has so drawn the boundary lines of the school districts within the Gary School system so as to contain the Negroes in certain districts and the whites in others. The only real attempt by the plaintiffs to show such action on the part of the School Board was in connection with the Washington-Locke district as a result of the construction of the new Locke School and in the Roosevelt-Emerson districts in changing the boundary lines from 19th to 20th Avenue. In the Court's opinion there were compelling reasons for districting these two areas in the manner in which it was accomplished, aside from any racial consideration and the Court cannot presume that the Board acted in bad faith. Furthermore, the evidence shows that Negro students were attending both the Emerson School and the Washington School at the time this redistricting was done.

An examination of the school boundary lines in the light of the various factors involved such as density of population, distances that the students have to travel and the safety of the children, particularly in the lower grades, indicates that the areas have been reasonably arrived at and that the lines have not been drawn for the purposes of including or excluding children of certain races. The safety factors are difficult to solve in this school system. Three U.S. Highways and the Indiana Toll Road traverse Gary from East to West. At least nine railroads cross the city, mostly at grade, as they converge on Chicago from the east or southeast. Some of these railroads have multiple tracks through the city and the streets crosing them are several blocks apart in some areas. The Little Calumet River crosses the city from east to west and is infrequently bridged. These are all safety factors that have to be considered in locating schools and fixing attendance districts.

1 Assistant principals are included in these figures.

2 The 2 teacher refers to teachers who work one-half time.

The evidence shows that the Board has consistently followed the general policy of requiring the students to attend the school designated to serve the district in which they live regardless of race. This is clearly demonstrated by the attendance figures in the 1951-52 and 1961-62 school years in certain school districts. The Tolleston School for example, in 1951-52 had 1,698 students, 74 or 4.3% of whom were Negroes. With no change in the school boundary lines in 1961-62 the school had 1,898 students and 1,455 or 76.65% were Negroes. Another example is the Froebel School which, in the 1951-52 school year had an enrollment of 2,260 students and 1,266 or 56% were Negro. In the 196162 school year the same school, with the same boundary lines, had 2,109 students and 2,004 or 95% were Negro. Beveridge Elementary School in 1951-52 had 465 students, 69 or 14.8% of whom were Negroes. In 1961-62 Beveridge had an enrollment of 470 students and 392 or 83% were Negro.

The problem in Gary is not one of segregated schools but rather one of segregated housing. Either by choice or design, the Negro population of Gary is concentrated in the so-called central area, and as a result the schools in that area are populated by Negro students. If the Negro population was proportionately scattered throughout the city, the racial percentages within the schools would be in relative proportion of Negroes to whites.

[3] The plaintiffs attempted to prove that students attending predominantly Negro Schools are discriminated against because of inferior instruction, inferior curriculum and overcrowded conditions but the evidence was unimpressive.

The evidence as to inferior instruction consisted of figures showing more nontenure teachers with lower pay in some of the predominantly Negro schools, and the results of certain achievement tests disclosing a lower standard of achievement by the students in some of these schools than by the students attending some of the predominantly white schools.

A tenure teacher in Indiana is one who has taught in a school system for at least five years. After that time he attains certain employment security which protects him from discharge, except for cause. Tenure status has nothing to do with his skill or ability as a teacher, except that his employment for the sixth year probably indicates that his first five years of service were satisfactory, otherwise he would not be retained. Since the greatest expansion of students and staff in Gary has been in the schools attended predominantly by Negroes it is only natural that more new teachers would be found there. This does not mean that these teachers are inferior. The evidence shows that the same standards are used in selecting all teachers and that in all cases the administration seeks to select the very best teacher available.

Since the salary increases for the teaching staff is based on years of service in the system, the newer teachers naturally receive less compensation, but again this has nothing to do with the teachers' ability. All teachers with the same length of service receive the same pay.

A comparison of achievement tests sheds little or no light on the quality of instruction, unless there is a corresponding showing of ability to achieve. The only evidence of inferior curriculum was that certain elective subjects are offered in some schools and not in others. It was explained that these electives are offered on the basis of whether or not there are sufficient students interested in the course in a given school to constitute a class large enough to justify assigning an instructor.

Certain exhibits were introduced by the plaintiffs for the purpose of showing that there was overcrowding in some of the predominantly Negro schools and that the classes were larger in such schools. The defendant offered evidence to show that these exhibits were either inaccurate or misleading. In any event, the variance between class sizes in the various schools was not great. Larger classes and more crowded conditions in the Negro districts might reasonably be expected because that is the area where the greatest increase in student population has occurred in the past ten years. While the greater expansion of facilities has also been in this area, it has been difficult if not impossible, to keep up with the needs. There is no convincing evidence of any discrimination as claimed by the plaintiffs.

The plaintiffs in their briefs have relied heavily upon the case of Taylor v. Board of Education, 191 F. Supp. 181 and 2 Cir. 294 F. 2d 36, to sustain their position that the School Board has deliberately segregated the Gary Schools. The facts here are entirely different than in the Taylor case. The evidence there showed that the Board had deliberately drawn the district lines of the Lincoln School for the purpose of containing most of the Negroes and excluding most of the whites. There is no such evidence in this case and in the Court's opinion

the decision in Taylor does not apply because of lack of intent or purpose on the part of the defendant here to segregate the races in certain schools.

[4] The fact that certain schools are completely or predominantly Negro does not mean that the defendant maintains a segregated school system. See Brown v. Board of Education of Topeka, 139 F. Supp. 468. There, the three judge Court, charged with the duty of implementing the decision of the Supreme Court, 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083, held, in passing upon the plan submitted by the school board for de-segregation of the Topeka schools, that a school is not segregated because it is attended by all Negro students if the district is inhabited entirely by Negroes and they are compelled to attend the school in the district in which they live.

The plaintiffs contend, however, that regardless of the motive or intent of the defendant, actual segregation of the races in the Gary schools exists because a large percentage of the Negro children are required to attend schools that are totally or predominantly Negro in composition, whereas, a large percentage of the white students attend schools that are totally or predominantly white. is the position of the plaintiffs that regardless of school districts or the residence of the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 494, 74 part of the defendant to integrate the races so as to bring about, as nearly as possible, a racial balance in each of the various schools in the system.

It

In support of their proposition, the plaintiffs cite language from the decision of the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 494, 74 S. Ct. 686, 691, 98 L. Ed. 873, to the effect that:

"To separate them (Negroes) from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."

The plaintiffs concede the question which they now urge has not been passed upon by the Supreme Court, or by any other Court where the question was specifically presented. They contend however that the language above quoted from the Supreme Court in the Brown case, together with language found in certain other cases, principally Taylor v. The Board of Education, supra, and Branche v. Board of Education, 204 F. Supp. 150, indicates that it is the policy of the law that those in charge of the administration of our schools are not only prohibited from segregating the races but they also have the affirmative duty to integrate the races and see that there is racial balance maintained in the schools under their supervision.

Without reviewing the language of the cited decisions here, it must be remembered that in Taylor the Court was dealing with a situation where it found that the School Board had deliberately segregated the races in their school district and whatever the Court said there was stated in the light of the Court's mandate to de-segregate a school which was purposely segregated. In its final analysis Taylor mandated the School Board to undo what had been illegally done. In the Branche case the Court was passing upon a motion for summary judgment filed by the Board of Education. The Court's opinion was that the Board's showing on its motion for summary judgment was not sufficiently convincing and that therefore there must be a trial on the merits. Whatever language the Court used in this posture could not be decisive of the question here. At the trial of this case the plaintiffs offered an expert, a Dr. Max Wolff, a sociology professor with no experience in public school administration, or for that matter no experience in the field of public school education.

Dr. Wolff defined a segregated school as "any school where the percentage of Negro to white students was one-third greater or one-third less than the percentage of Negro students to white students in the entire system." Applying his formula to the Gary schools he concluded that any school with less than 36 percent Negro students was a segregated white school and any school with more than 72 percent colored students was a segregated Negro school. Dr. Wolff cited no authority for his definition of segregated schools other than himself. Dr. Wolff's definition of a segregated school may be a good sociological definition, but the Court can find no authority which would indicate that it is a good legal definition. The Court is of the opinion that a simple definition of a segregated school, within the context in which we are dealing, is a school which a given student would be otherwise eligible to attend, except for his race or color, or, a school which a student is compelled to attend because of his race or color.

[5] The neighborhood school which serves the students within a prescribed district is a long and well established institution in American public school education. It is almost universally used, particularly in the larger school sys