the minority composition of the Arts Alternative Program was 22% African-American and 0.8% Hispanic. Despite its own mixed enrollment for this school year, the Arts Alternative Program existed as a separate 77% white program within Ellis School, in contrast to a regular Ellis enrollment of 85% African-American (163 of 192 students).
Low-Status Alternative Programs
About one-third of the alternative programs in the RSD were low-status programs for "slow learners" or "underachievers". The low-status programs were established for the same policy reasons as the high-status programs, that is, to locate unique programs in predominantly minority schools where they would attract transfer students in order to desegregate school enrollments. See Alternative Enrollments and Minority Percentages, 12/15/80, B4068; Driscoll Report, B24821; D10747; D10755; D10709; D10581. While the high-status programs were almost exclusively white, the "slow learners" and "underachiever" low-status programs had large proportions of minority students.
The Get It Together (GIT) Program was designed for capable but underachieving students. D10709. The program was a self-contained basic skills program. In the Fall of 1980, the GIT Elementary Program was in two locations. The Barbour location was 14% African-American and 2% Hispanic. The Froberg location was 62% African-American and 4% Hispanic. B4068. In the 1986-87 school year, GIT was located only at Barbour, with 25% African-American and 3% Hispanic students enrolled. B24820. At that time the program contrasted with the regular enrollment at Barbour that was 86% African-American and 7% Hispanic. In the 1988-89 school year, 26% African-American and 6% Hispanic students were enrolled. D10709.
The Career Awareness and Survival Skills (CASS) Program was initiated in the RSD in 1979. The program was designed for "slow learners" who formerly would have qualified for Special Education, but under the new federal guidelines were to be mainstreamed into regular classrooms. Instead, these students were placed into the CASS Program, which was a "self-contained" alternative program. D10747.
In the Fall of 1980, CASS was located at Ellis School, and had a 56% African-American enrollment and a 3% Hispanic enrollment. B4068. In 1986-87, the racial composition of the CASS Program was 50% African-American and 0% Hispanic, with similarly-composed classrooms located at both Haskell and Jackson Schools. B24820. In the 1988-89 school year, the composition of the CASS Program was 60% minority, located at the same two schools. D10747.
The Transition Program was identified by the RSD as an alternative program in its 1989 interrogatory answers. That program was established for students who were perceived to have failed kindergarten, those not ready to enter regular first grade. In the 1988-89 school year, the transition program was located at fourteen elementary schools, five of which were in the Southwest Quadrant. The overall composition of the fourteen sites was 45% African-American and 2% Hispanic.
CONCLUSIONS OF LAW
Intentional conduct that causes segregation within particular schools is the same as intentional conduct resulting in systemwide segregation. Such "internal segregation" is unlawful. Reed v. Rhodes, 607 F.2d 714, 731 (6th Cir. 1979); Hobson v. Hansen, 269 F. Supp. 401, 511-14 (D. D.C. 1967), aff'd sub. nom., Smuck v. Hobson, 132 U.S. App. D.C. 372, 408 F.2d 175 (D.C. Cir. 1969). As far as the students are concerned, internal segregation may be even more invidious than segregation by schools, since its effects are observable to the students each day. Hart v. Community School Bd. of Educ., New York School Dist. #21, 383 F. Supp. at 699, 740 (E.D.N.Y. 1974), aff'd, 512 F.2d 37 (2nd Cir. 1975).
A school district may not segregate students within a putatively integrated school by educating them in racially imbalanced classes or programs that are separate, isolated and insulated educational units. See Reed, 607 F.2d at 731; United States v. Yonkers Bd. of Educ., 624 F. Supp. 1276, 1460 (S.D.N.Y. 1985), aff'd, 837 F.2d 1181 (2d Cir. 1987). Courts have found within-school segregation unlawful in various types of programs, including gifted programs. See, e.g., Spangler v. Pasadena City Bd. of Educ., 311 F. Supp. 501, 519 (C.D. Cal. 1970) (special interest programs); Yonkers, 624 F. Supp. at 1445-46 (special education programs and tracked programs); and Hart, 383 F. Supp. at 740.
Tracking and ability grouping are common means of maintaining racial isolation within a putatively desegregated school. See, Hart, 383 F. Supp. at 740; Spangler, 311 F. Supp. at 519. Ability grouping and tracking practices are not unconstitutional per se. See, e.g., Quarles v. Oxford Mun. Separate School Dist., 868 F.2d 750, 753 (5th Cir. 1989); Castaneda v. Pickard, 648 F.2d 989, 994 (5th Cir. 1981). Rather whether a district may use ability grouping and tracking that has a disparate impact on minorities depends upon: (1) whether the school district is unitary; and (2) whether the program or procedures are tainted by racial discrimination. See, United States v. Gadsden County School Dist., 572 F.2d 1049 (5th Cir. 1978); Spangler, 311 F. Supp. at 519. Generally, school districts operating under an affirmative duty to desegregate may use ability grouping or tracking practices only if such practices do not have a racially segregative effect. See e.g., Gadsden County School District, 572 F.2d at 1051-52 (ability grouping system unlawful because it perpetuated past discrimination); Lemon v. Bossier Parish School Bd., 444 F.2d 1400, 1401 (5th Cir. 1971) (testing as a basis for assignment to schools prohibited when school district not unitary). No school district may act with segregatory or discriminatory intent in utilizing grouping or tracking practices. See, Georgia State Conf. of Branch of NAACP, 775 F.2d at 1403, 1415-15 (11th Cir. 1985); Spangler, 311 F. Supp. at 519.
One important factor in evaluating an ability grouping program is whether the program, once sufficiently established, is effective in overcoming the problems it was designed to address. See Gadsden, 572 F.2d at 1052. In this regard, movement of students between ability groups provides a crucial indication: if ability grouping is providing all students with better educational opportunities, there should be movement of students from the lower sections to higher sections. Id.; see also, Quarles, 868 F.2d at 755 (court notes impressive degree of movement among achievement levels by African-American students as well as white students). In an unlawful program, minority students may be locked into achievement groups and fail to move upward over time. Cf. Georgia State Conference of Branch of NAACP, 775 F.2d at 1419-20.
The practices of screening and steering minority students into particular educational programs are another cause of within school segregation. See e.g., Yonkers, 624 F. Supp. at 1445; Smuck v. Hobson, 132 U.S. App. D.C. 372, 408 F.2d 175, 183 (D.C. Cir. 1969). "Steering" occurs when minority students receive academic counselling different from that received by white students. Yonkers, 624 F. Supp. at 1445-46. One common form of steering involves advising or encouraging minority students to enroll in a high school's general program (geared for non-college-bound students) instead of the school's regular academic program. Id.
"Screening" involves the discriminatory use of procedures and requirements in order to limit minority enrollment in particular programs. Yonkers, 624 F. Supp. at 1448-50. Some of the mechanisms that may be employed to limit minority enrollment in educational programs (and hence increase segregation) are counselor recommendations, reports on student behavior and educationally imprecise standards and test scores. Id. Particularly significant is when a school board is aware of the racially disproportionate consequences of the admissions process for a program, but fails to take action to address this condition. Id.
"Intact busing" is another form of within school segregation. Intact busing is "a classic segregative technique" in which African-American (or white) children are bused away from their neighborhood school to an identifiably opposite-race school. The transfer students are then isolated in classrooms separate from the receiving school's student population. Higgins v. Bd. of Education of Grand Rapids, 508 F.2d 779, 787 (6th Cir. 1974); Berry v. School Dist. of Benton Harbor, 442 F. Supp. 1280, 1306 (W.D. Mich. 1977). Intact busing serves to "convert integrative opportunities to racially segregative nightmares for the children involved." Reed, 455 F. Supp. at 563. Intact busing not only is a constitutional violation, but also constitutes strong evidence of discriminatory intent. See Reed, 455 F. Supp. at 563; Berry, 442 F. Supp. at 1306; Armstrong v. O'Connell, 451 F. Supp. 817, 836-844 (E.D. Wis. 1978).
Based upon the foregoing, the court finds that on repeated occasions, the RSD engaged in intentional conduct causing the unlawful segregation of students by race within schools. The RSD engaged in a series of purported "desegregation" transfer programs. Among the proposed and implemented "desegregation programs" promoting within-school segregation were:
The Grade Exchange Plan, which was in reality a system of intact busing with white students being sent to their own classrooms at black schools and vice-versa;