Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 68-C-225 -- S. Hugh Dillin, Judge .
Before Fairchild, Chief Judge, and Swygert and Tone, Circuit Judges.
The Indianapolis School desegregation case is now entering its second decade.*fn1 It involves a municipality, the (present) City of Indianapolis, which contains within its borders more than a half dozen separate and autonomous school districts. Eight years ago the district court determined that the fourteenth amendment violations committed by the largest of those districts (the Indianapolis Public Schools-IPS) and the State of Indiana could be remedied only by a desegregation plan which would transfer students from IPS to the predominately white school districts which surround it.*fn2 After an appeal and a remand to the district court for further consideration,*fn3 we affirmed, finding that the standard for interdistrict relief established by Milliken v. Bradley, 418 U.S. 717, 94 S. Ct. 3112, 41 L. Ed. 2d 1069 (1974) were met in this case, at least with regard to those districts within the (present) City of Indianapolis.*fn4 The Supreme Court vacated and remanded for further consideration in light of Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976) and Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977).*fn5 On reconsideration we reaffirmed our holding that certain acts of the State of Indiana, particularly in connection with the "Uni-Gov" legislation which created the new city boundaries, had interdistrict effect, but remanded the case to the district court for findings of intent in light of the cases mentioned by the Supreme Court and evaluation of other issues, particularly regarding the location of public housing projects, in light of Milliken, Arlington Heights, and Dayton Board of Education v. Brinkman (I) (433 U.S. 406, 97 S. Ct. 2766, 53 L. Ed. 2d 851 (1977)).*fn6
In his most recent opinions, which are the ones now before us, the district court judge found that the exclusion of schools from the Uni-Gov legislative scheme was done with a racially discriminatory purpose. He found a similar racially discriminatory purpose in the failure of the Housing Authority of the City of Indianapolis (HACI) to build any units outside of the old central city of Indianapolis despite legislative authority to do so. He also held that certain legislation*fn7 enacted by the Indiana legislature in response to his earlier decisions in the case allowed him to implement an interdistrict remedy without regard to the legislative intent questions posed by the Supreme Court and by our decision. He rejected, however, attempts by the IPS to establish that intradistrict violations by IPS had a segregative impact on housing patterns and school enrollment patterns throughout the city. He also denied requests by the United States and IPS to allow immediate implementation of an intradistrict remedy. On the issue of remedy he reaffirmed his earlier determination that the appropriate remedy is a student reassignment plan which would transfer black students from IPS to the other districts within the city until each of the surrounding districts is approximately 15% black and then reassign the remaining IPS students within IPS to achieve complete desegregation within the IPS boundaries. He also ordered that certain in-service training programs be implemented, with the cost to be borne by the State of Indiana, and made permanent his injunction against any expansion of public housing (except for the elderly) within the boundaries of IPS.
Although virtually all of these decisions are challenged by one or more of the parties to these appeals, the central issue remains the propriety of a desegregation plan that extends to those parts of the City of Indianapolis which are in separate and independent school districts outside the boundaries of the Indianapolis Public Schools. We will address that issue in Part I of the opinion, discussing in turn the evidence regarding Uni-Gov, housing, and the interdistrict effects of segregation within IPS. In Part II we will turn to the other issues raised by the various appellants.
As we noted in our last opinion (573 F.2d 400), an interdistrict remedy such as that ordered by the district court must be predicated on a finding that official action, taken with a discriminatory purpose, was a substantial cause of interdistrict segregation. Milliken v. Bradley, 418 U.S. 717, 744-45, 94 S. Ct. 3112, 41 L. Ed. 2d 1069 (1974); Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976). The plaintiffs here pursued two independent avenues of proof in their attempt to make the requisite showings. The first centered around the exclusion of the Indianapolis Public Schools from the 1969 legislation which for most other purposes created a single metropolitan form of government for Marion County. The second concerned the governmental decision to locate all public housing projects within the old city of Indianapolis (and thus within the borders of IPS). In addition, IPS attempted to prove that de jure segregation of the IPS schools was in part responsible for the segregated housing patterns found throughout the county. The district court found that only the Uni-Gov and housing evidence supported an interdistrict remedy, rejecting as not credible the expert witnesses called by IPS in its attempt to establish the third point.
In our last opinion we held that the exclusion of schools from the Uni-Gov legislation passed in 1969
"meets the requirements of Milliken and therefore can be used as a basis for imposing an interdistrict remedy if the district court finds that the General Assembly, in enacting the series of legislation, acted with a discriminatory intent or purpose."
The district court has now found that the actions of the General Assembly "were done, at least in part, with the racially discriminatory intent and purpose of confining black students in the IPS school system to the 1969 boundaries of that system, thereby perpetuating the segregated white schools in suburban Marion County." 456 F. Supp. 183. The appellants vigorously assert that there is no support in the record for that finding, disputing not so much the evidence itself, but rather whether taken as a whole, it supports the district court's conclusion.
In its remand for consideration of the discriminatory purpose question, the Supreme Court referred us to Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1967) and Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977). Washington v. Davis sets forth the intent requirement, but says little about how it is to be met, apart from noting that
"Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than on another. . . . Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution."
426 U.S. 229, 242, 96 S. Ct. 2040, 2048-2049, 48 L. Ed. 2d 597.
Justice Stevens, concurring, notes that the degree and type of proof needed to establish intent may vary considerably from one sort of case to another, and that
"Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor. For normally the actor is presumed to have intended the natural consequences of his deeds. This is particularly true in the case of governmental action which is frequently the product of compromise, of collective decisionmaking, and of mixed motivation. It is unrealistic, on the one hand, to require the victim of alleged discrimination to uncover the actual subjective intent of the decisionmaker or, conversely, to invalidate otherwise legitimate action simply because an improper motive affected the deliberation of a participant in the decisional process."
The Arlington Heights decision provides considerably more guidance. That decision calls for "a sensitive inquiry into such circumstantial and direct evidence of intent as may be available" and then suggests as possible lines of inquiry, in addition to discriminatory impact, "the historical background of the decision," "the specific sequence of events leading up to the challenged decision," "departures from the normal procedural sequence," "substantive departures . . . particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached," and "legislative or administrative history." 429 U.S. 252, 266-268, 97 S. Ct. 555, 564-565, 50 L. Ed. 2d 450. With these guidelines in mind, we turn to the evidence on which the district court rested its decision.
Indianapolis and Marion County, before Uni-Gov, were not unlike dozens of other metropolitan areas throughout the country. The central city, Indianapolis, was losing population and becoming more predominately black and poor while the surrounding suburban areas were growing rapidly, but, with a few exceptions, remaining almost exclusively white. School enrollments were following a similar pattern. By 1970 IPS enrolled less than 60% of the county's total students, but over 97% of the black students in the county. These demographic facts of life, of course, can no more support a metropolitan desegregation plan here than could a similar pattern in Detroit (the focus of Milliken v. Bradley ) or any other major city. They form an important backdrop, however, for the historical events, which are of somewhat more significance to this case.
As the district court noted, Indiana has had a long history of both public and private discrimination against its black citizens. This history has been described at length in earlier opinions and will not be repeated here, but ranged from state legislation which affirmatively sanctioned the de jure segregation of the Indianapolis Public Schools until 1949 to numerous instances of private housing discrimination, some of which were still being openly practiced past the date suit was filed. Other official acts of discrimination included a prohibition on marriage across racial lines, not repealed until 1965; a requirement that only white males could serve in the militia, finally repealed in 1936; and a policy enforced until after World War II that blacks could enter state parks only on a segregated basis. The state was also implicated in the deliberate policies of segregation practiced by IPS, particularly with regard to its role in selection of sites for new schools.*fn8 These historical facts are not conclusive, of course, but may properly be considered by the court in its attempt to determine whether there was a discriminatory intent in the legislature's failure to include schools in the Uni-Gov consolidation.
Of greater relevance, however, is the history of school district expansion and consolidation in Indiana. As we have said in prior decisions,*fn9 Indiana has for generations pursued a legislative policy that school district lines should grow as the corporate lines of their cities grow. That policy was recognized by the Indiana courts as early as 1867*fn10 and was subsequently made explicit by legislation.*fn11 The policy was modified in 1959 to allow greater consolidation among Indiana's many small school districts*fn12 but was reaffirmed as to the Indianapolis district in particular by legislation enacted in 1961.*fn13 Although the legislation did not always achieve its stated purpose the policy it expressed was clear and although there was seldom a perfect correspondence between civil city and school boundaries the exceptions were generally in favor of larger, rather than smaller, school districts.
It was against this backdrop that the Uni-Gov legislation was enacted in 1969. Civil, as well as school, annexations had become all but impossible to achieve because of opposition from the suburban areas which would be affected. Richard Lugar, then the Mayor of Indianapolis, along with other governmental and business leaders, was convinced that a county-wide governmental structure would be in the best interests of greater Indianapolis and conceived of Uni-Gov as a way of "sidestepping" the problems of direct annexation. The Uni-Gov legislation, officially entitled the "Consolidated First-Class Cities and Counties Act" included all of Marion County in a new governmental unit called the City of Indianapolis. All residents of the new city now vote in elections for mayor and members of the City-County Council. The new council has taken over most of the functions of county government (and of numerous special service districts) as well as the functions of the Common Council of the old City of Indianapolis. Some governmental units remain unchanged however. The airport authority, building authority, county courts, and hospital authority remain separately governed. There are special provisions for police and fire districts. In addition, the "excluded cities" of Beech Grove, Speedway, and Lawrence retain their own local governments and provide their own municipal services. Nonetheless the City-County Council has authority over building code enforcement, municipal planning, thoroughfare control and air pollution regulation even in the "excluded cities" and the residents of those cities vote in Uni-Gov elections.
Under the 1961 Act, if the Uni-Gov legislation could be characterized as an extension of Indianapolis' civil city boundaries by civil annexation, it would have followed that the boundaries of IPS would have expanded to cover the area included in the new City of Indianapolis. Section 1(e) of the 1961 Act defines "civil annexation" as "any action whereby the civil boundaries of any civil city are extended." The Uni-Gov Act in turn defined the new boundaries of the "City of Indianapolis" as "all of the territory of a First Class City and of the County, except for the territory located in Excluded Cities." Indiana Acts 1969, Ch. 173, § 102(f). Nevertheless the appellants argue vigorously that the Uni-Gov legislation was not such an annexation as defined by the 1961 Act and that therefore it is inappropriate to read any racially discriminatory intent into its limited scope. What convinces us that such a reading may be appropriate is the fact that the state legislature was sufficiently concerned about the possible expansion of IPS that might, under the 1961 Act, follow the enactment of the Uni-Gov legislation that it passed a special bill, just sixteen days before final passage of the Uni-Gov legislation, to repeal the applicable portions of the 1961 Act. As we have noted before, the repeal of section 9 of the 1961 Act appears to have been done in direct response to concerns that otherwise the boundaries of IPS would expand with the borders of the new City of Indianapolis. 573 F.2d 400, 407 (7th Cir. 1978). We do not think that the Indiana legislature thought it was engaged in a futile act or that the repeal was unrelated to the Uni-Gov legislation then pending. As Mayor Lugar testified, the Uni-Gov legislation would not have passed if it would have meant that city and suburban school districts would be consolidated. Given the starkly segregated conditions then existing in Marion County it is also clear, as it must have been then, that the likely result of that special legislation would be a continuation of the racial disparity then existing between IPS and other school districts in Marion County.
The appellants nonetheless assert that there were valid, non-racial reasons for the repeal of the 1961 Act. They point particularly to evidence that both the Marion County School Reorganization Committee in 1961, and IPS in 1967, had recommended that county-wide school consolidation not be pursued. Mayor Lugar testified that these recent rejections of a county-wide system were the reason that there was never any consideration of including schools in the Uni-Gov scheme, even though he personally thought, and argued, that it would be wise to have at least a county-wide common school tax. The opposition of IPS was apparently based largely on a determination that the district was better off financially with the students and tax base it already had than with the expanded tax base, but even more expanded long-term capital obligations, that would accompany consolidation. The reasons for the opposition of the Reorganization Committee are far less clear. The Committee originally supported a county-wide district and retreated from that position only when strong public opposition to consolidation was encountered. As the district court noted, however, the suburban districts throughout this period were engaged in a variety of cooperative ventures with each other, but never with IPS.
What this adds up to, we think, is the obvious conclusion that opinions about the merits of consolidation differed. On one hand there was the long-established, and recently reaffirmed, legislative determination that school boundaries, particularly in Marion County, should expand with civil city boundaries. On the other hand, there were those who felt that the students of Marion County were best served by smaller units of school government. The question is not whether one of these positions was racially invidious and the other not; the question is rather whether the legislative decision in 1969 to abandon its past policy in favor of the position advocated by the opponents of consolidation was done with a racially discriminatory purpose. The district judge considered the timing of the decision (shortly after this suit had been filed, signaling a likely end to the segregated conditions which had been prevailing within IPS), the history of state sanctioned discrimination against black students within IPS, the foreseeable impact of the decision on the minority population of Indianapolis, and the predominately political, rather than educational, reasons for the decision and concluded that it was made with a discriminatory purpose.*fn14 We do not think any of those factors was improperly considered under Washington v. Davis or Arlington Heights, nor do we believe that the conclusion of discriminatory purpose was clearly erroneous in light of evidence of record. We therefore affirm the district court's determination that the 1969 repeal of the 1961 Act was done with a discriminatory purpose. We will discuss at a later point whether this finding supports the specific remedy ordered by the district court.
In his concurring decision in Milliken v. Bradley, Justice Stewart explained
"This is not to say, however, that an interdistrict remedy of the sort approved by the Court of Appeals would not be proper, or even necessary, in other factual situations. Were it to be shown, for example, that state officials had contributed to the separation of the races . . . by purposeful racially discriminatory use of state housing or zoning laws, then a decree calling for transfer of pupils across district lines . . . might well be appropriate.
With specific reference to the facts before the Court in Milliken he noted that "(no) record has been made in this case showing that the racial composition of the Detroit school population or that residential patterns within Detroit and in the surrounding areas were in any significant measure caused by governmental activity . . . ." 418 U.S. 717, 756, 94 S. Ct. 3112, 3133 n.2, 41 L. Ed. 2d 1069. In our most recent remand opinion, we instructed the district court as follows:
(An) interdistrict desegregation remedy is appropriate if the following circumstances are shown to exist (given the fact that there is a vast racial disparity between IPS and the surrounding school districts within the "new" City of Indianapolis): (1) that discriminatory practices have caused segregative residential housing patterns and population shifts; (2) that state action, at whatever level, by either direct or indirect action, initiated, supported, or contributed to these practices and the resulting housing patterns and population shifts; and (3) that although the state action need not be the sole cause of these effects, it must have had a significant rather than a de minimis effect. Finally, an interdistrict remedy may be appropriate even though the state discriminatory housing practices have ceased if it is shown that prior discriminatory practices have a continuing segregative effect on housing patterns (and, in turn, on school attendance patterns) within the Indianapolis metropolitan area.
The record shows that the district court already has received evidence and has made certain findings in the area of housing discrimination. See Indianapolis I, 338 F. Supp. at 1204-05; Indianapolis IV, 419 F. Supp. at 183-85. It is important, however, that on remand the district court specify what state-responsible housing practices of a discriminatory nature, if any, have resulted, at least in part, in segregative residential patterns. This is necessary not only to determine initially whether an interdistrict remedy is appropriate, but also to fashion an appropriate remedy.
In addition, we made it clear that the intent requirement applied here as well, i.e., that the "official actions" must have been taken with a discriminatory purpose.
On remand, the district court, with one exception, did not attempt to determine how much, if any, of the current housing segregation within the new City of Indianapolis was caused by intentional state action rather than by non-discriminatory actions or by private acts of discrimination. In the absence of such findings, the history of past state involvement in housing segregation, detailed at 332 F. Supp. 655, 662-3, could not support the interdistrict remedy ordered by the court.*fn15 The question is narrowed therefore, to the one exception, which is the location of public housing within Marion County.
The Housing Authority of the City of Indianapolis (HACI) and the Metropolitan Development Commission of Marion County (Commission) have, since 1964, been responsible for the placement of public housing in much of Marion County. Under Indiana law in effect at the time, HACI's "area of operation" included all of the old City of Indianapolis as well as "the area within (5) miles of the territorial boundaries thereof." IC 1971 18-7-11-3. Of the eleven public housing projects in Marion County ten were built, mostly in the late 1960's, on sites selected by HACI and approved by the Commission.*fn16 Each of the eleven projects is within IPS. Those which house families are approximately 98% black.
It was obvious to the district court that the choice of location of those projects had an impact on school enrollments by keeping black students within IPS and out of the surrounding school districts. In our remand order we held that this presumably segregative impact could support an interdistrict school desegregation order only if a) the decision to locate public housing within IPS was the result of a discriminatory purpose, either on the part of HACI or on the part of surrounding governmental units which may have resisted the placement of public housing in their communities, and, b) those decisions had a "substantial" interdistrict effect. 573 F.2d 400, 410, 413-4. The district court has now made both of these findings. The ...