Morgan v. Kerrigan

*222 MEMORANDUM OF DECISION AND REMEDIAL ORDERS

Table of Contents

I Introduction........................................... 222

II Prior Proceedings...................................... 224

III Findings and Conclusions .............................. 227

A. Plans submitted by the Parties....................... 228

B. General Principles Governing Remedy................. 229

C. School Districts .................................... 235

D. Guidelines for Assigning Students.................... 240

E. Examination Schools................................ 242

F. School Closings and Capacities....................... 245

G. Magnet Schools and Programs........................ 246

H. Citizen Participation, Monitoring, Reporting........... 248

IV Conclusion............................................. 249

V Student Desegregation Plan (excerpts from) .............. 250

A. The Community School Districts..................... 250

B. The Citywide School District........................ 256

C. Vocational Education (omitted) ..................... .

D. Guidelines for Assigning Students................... 261

E. Transportation .................................... 263

F. Cost Considerations................................ 264

G. Citizen Participation, Monitoring and Reporting....... 265

H. Timetable for Implementation....................... 269

I. Further Remedial Orders (omitted).................. .

J. Retention of Jurisdiction (omitted).................. .

VI Appendices (omitted)................................... .

Introduction 1

Boston has been a magnet for people searching for access to the larger American society ever since the founding of the nation. Boston’s magnetism has, in recent decades, attracted thousands of black Americans, Hispanic Americans, and Oriental Americans into its midst. Like those who preceded them from Europe, these Americans are being pushed by the hardships of their present life and pulled by the promise of opportunities that Boston has always represented.

Many Bostonians today face a different situation from the one faced by settlers in earlier generations, however. Many of today’s Bostonians, white, black, and other minorities, must bridge a cultural gap far wider than the one bridged by their predecessors.

Hard as the bridge to opportunity was to travel for most Bostonians from 1800 to 1946, the bridge did exist. Growing industries were in search of workers. The physical structure of Boston permitted the incoming ethnic groups, albeit after much struggle, to settle in enclaves within a city that was not yet overbuilt. Of equal importance, free public schools served as an open road across the gulf between the old cultures and the new. Public schools also provided, *223 through their instruction, access to semiskilled and skilled occupations.

Building upon a foundation laid in the colonial era, Boston became the bridge not only to liberty, but to the ideal of the free, universal, and inclusive public school. Horace Mann established in 1837 the nation’s first statewide education commission. In that decade, he achieved world wide renown as the Father of the Common School. Under his stimulus, Boston erected the Quincy School, still in use today in Boston, as the nation’s first multi-classroom public elementary school. Built in 1847, the Quincy School expressed in brick and mortar as well as program all that was ideal, urban, and progressive in the nineteenth century vision of the Common School.

Horace Mann's vision served the children and youth of Boston for more than a century. But, as the deterioration and segregation of the Quincy School make plain to the eye of any visitor, that vision began to dim after World War II. Public schools and school services became increasingly unequal in quality. Some became exclusive rather than inclusive of all groups.

Ethnic segregation, cultural isolation, overcrowding some schools and extreme underutilization in others, incoherent grade structures, discriminatory assignments and school admissions procedures, all combined to guarantee unequal and inferior educational opportunities for the children of Boston. By the late 1960's conditions had become so deplorable that one responsible investigator reported,

Of any generation of seventh graders, 85 percent do not complete four years of college; 75 percent do not even begin college. In any ghetto area, more than half never finish high school. 2

As the public schools of Boston declined, they also became outmoded. Speaking of them, the Harrington Report concluded, “Course offerings available to most public school students today are similar to those in the schools of their parents and grandparents.” 3 In the last few years, the Boston School Department has worked to introduce some innovations and improvements, but these have been handicapped by maneuvers to maintain segregation.

This demise over a period of three decades took place alongside the rising hunger of Bostonians for schools that could help them bridge the gap between ethnic isolation and access to the larger and ever more complex urban society. The children of second and third generation white ethnic families suffered as the schools located within their residential enclaves came to reinforce rather than reduce the educational distance between their neighborhood and access to the larger society. Black and other minority children, meanwhile, suffered even greater educational deprivations as the schools they attended were the most crowded, the oldest, the least well maintained, and the most poorly staffed that the school committee could offer.

In the court’s quest for a remedy adequate to reviving the vision of an equitable and effective public school system, it has planned for schools that will be free, universal, inclusive, and sound in ways that meet the educational needs and aspirations of all of Boston’s citizens. It believes that the reconstruction of the ideal of the Common School requires a common concern with equality and excellence throughout all institutions and groups in the entire Greater Boston area.

While it has obligated the Boston School Committee and its Department to eliminate segregation and the effects of discrimination in the public schools, it has also solicited the talent, support, and assistance of colleges, universities, and business and other organizations in de *224 veloping learning opportunities that will remedy the losses students have already suffered and that will lay a basis for improving the quality of education for the total City.

II

Prior Proceedings

On June 21, 1974 the court issued an opinion holding that Boston’s public schools had been unconstitutionally segregated by the purposeful actions of the school committee and superintendent. Morgan v. Hennigan, D.Mass.1974, 379 F.Supp. 410. This finding was affirmed by the Court of Appeals in December of 1974. Morgan v. Kerrigan, 1 Cir. 1974, 509 F.2d 580. The finding was based on a history of school committee actions and inactions spanning a decade, involving overcrowding and underutilization of facilities, placement of portable classrooms, use of new facilities, districting, feeder patterns, open enrollment policies, and hiring and assignment of faculty and staff, which intentionally brought about and maintained a dual school system in Boston. In 1971-72 the system contained 59,300 whites (61%) and 30,600 blacks (32%), yet only five of 140 elementary schools had a racial composition that came within 10% of the citywide ratio. Eight-four percent of white students in Boston attended schools more than 80% white; 62% of black students attended schools more than 70% black. 379 F.Supp. at 424. Added to the background of this case were efforts by the school committee beginning in 1965 to evade the effects of the Racial Imbalance Act passed by the Massachusetts legislature. Mass.G.L. c. 71, §§ 37C and 37D, and c. 15, §§ II, 1J and IK. Following an unsuccessful attack by the Boston School Committee on the constitutionality of the statute, a series of orders of the State Board of Education and judicial proceedings in state courts culminated in orders from the Supreme Judicial Court that the school committee implement in the 1974-75 school year a plan formulated by the State Board of Education (the “state plan”).

In the court’s opinion of June 21, 1974 the defendants Boston School Committee and Superintendent (the “city defendants”) were found to have “knowingly carried out a systematic program of segregation affecting all of the city’s students, teachers and school facilities and have intentionally brought about and maintained a dual school system.” 379 F.Supp. 410, 482. The court ordered these defendants to “begin forthwith the formulation and implementation of-plans which shall eliminate every form of racial segregation in the public schools of Boston, including all consequences and vestiges of segregregation previously practiced by the defendants.” 379 F.Supp. at 484. As an interlocutory order, the court enjoined the defendant school committee and superintendent from failing to comply with the state plan.

In July 1974 the school committee and superintendent, dissatisfied with the state plan, requested time in which to prepare a substitute plan which would accomplish desegregation in two stages, secondary schools in September 1974 and elementary schools in September 1975. The court granted time until July 29. At the end of this period, the defendants reported that they had been unable to develop a satisfactory substitute for the state plan, and the efforts of the court and parties turned to the implementation of the state plan. The state plan is only a partial plan in terms of the constitution^.^,, requirements of this case. Drawn under constraints of state law regarding assignments, it sought to decrease the number of racially imbalanced schools, i. e., having a majority of nonwhite students, from 68 to 44. It left large areas of the city such as Charles-town and East Boston unaffected and permitted the continuation of a number of virtually all black middle and elementary schools.

The opening of school under the state plan in September of 1974 was accompa *225 nied by some violence and much fear. School buses were stoned, their windows broken and some children cut by shattered glass. Angry crowds of white parents and students gathered in front of schools to protest the entry of black students assigned there. Student boycotts of varying effectiveness were organized. Many students stayed home or were kept home by their parents out of fear for their personal safety. Several city high schools were the scenes of racially-connected fights and incidents. As the school year continued, violence subsided, then recurred. The court and the parties took several steps in an effort to provide security and reduce racial tensions. Racial-ethnic councils of parents and students were established. In October federal marshals were requested by the Mayor, but it developed that such assistance was available at the federal level only after city and state resources were exhausted. State troopers joined city police in large numbers in troubled areas, such as predominantly white South Boston and Hyde Park. Even today 166 state and local police officers are stationed in the halls of South Boston High School and another 134 are stationed in the vicinity during school hours. In December a white student was stabbed inside South Boston High School by a black student. Community residents gathered and surrounded the high school building, trapping black students inside until a decoy operation by police permitted the departure of the black students. In the aftermath of this incident, all schools in the South Boston-Roxbury district were closed early for the Christmas vacation and reopened late, and then only against advice of city and state police officials who urged the permanent closing of South Boston High. The court issued orders designed to keep crowds from gathering along bus routes and around school buildings, and to keep non-students out of school buildings during class hours. The student code of discipline was amended to prohibit the use of racial epithets to antagonize others. The parties developed alternative plans for students at South Boston High should its permanent closing have become necessary. A monitoring program was developed by the Community Relations Service of the United States Department of Justice, under which volunteers have been stationed in troubled schools to watch for signs of increasing tension.

In many schools this year the atmosphere has been one of felt tension, where the educational process has suffered. In others, notably at the middle and elementary school levels, but also at some high schools, students and teachers have gone about the business of learning and have developed integrated learning programs of which they are proud.

As these events were occurring, planning was renewed for the development of a citywide desegregation plan to be implemented in September 1975. After several hearings on proposals of the parties as to its terms, the court entered an order on October 31, 1974 establishing the filing date and general contents of a student desegregation plan to be filed by the defendants. This order required the filing of progress reports on the development of the plan and filing of the plan itself by December 16, 1974. It also stated that “the plan shall be approved by vote of the defendant school committee before submission to the court.” In setting standards for the plan, the court said:

Taking into account the safety of students and the practicalities of the situation, the student desegregation plan shall provide for the greatest possible degree of actual desegregation of all grades in all schools in all parts of the city. . In drafting the plan, the defendants shall utilize as a starting point and keep in mind the goal that the racial composition of the student body of every school should generally reflect the ratios of white and black students enrolled at that grade level of schools, elementary, intermediate and secondary, throughout the system.

*226 The order provided that parties and other interested community groups would have until January 20, 1975 to file criticisms of the school committee plan or to file alternative plans.

Progress reports were duly filed by the defendants, but on the deadline for filing its plan, December 16, the school committee by a three to two vote refused to approve for filing with the court the plan developed by the school department at the school committee’s direction and about which the progress reports had been made. Counsel for the defendants filed the plan (known as “the December 16 plan”) despite the school committee vote, then asked the court’s permission, granted when new counsel was later obtained, to withdraw from the case.

Plaintiffs filed motions that the three members of the school committee voting against submission of the December 16 plan be held in criminal and civil contempt. In preparation for the hearing on these motions, the court required written answers from these three school committee members to questions about their willingness to obey future orders of the court and their willingness to take affirmative steps to decrease racial tensions and peacefully implement the state plan. In every case the members stated that they would obey orders by the court but would take no other steps except where they deemed actions would reduce racial antagonism and provide adequate safety for the school children. The questions and the then chairman Kerrigan’s answers, which were typical, appear as Appendix A. At hearing on the contempt motions the members testified that their votes had been based on conscientious opposition to any form of ■ “forced busing,” i. e., assignments to schools beyond walking distance, which made them unable to endorse any desegregation plan containing forced busing. This view was adhered to even though there might be no desegregation without mandatory busing. The then chairman Kerrigan testified as follows:

I certainly am against the forced busing of school children. I have always been against the forced busing of school children. I ran for office stating that I would never vote for a plan that involved the busing of school children. It is unfortunate that is the way our society exists, the way the housing patterns are laid out, but the only way you are going to desegregate city schools is through forced busing.

I certainly could go for magnet schools. I certainly could go for an increase in the METCO program. I could go for any plan that would give the parents whom I represent a choice of the school. I can’t vote for a plan that includes the forced busing of school children. The hypocrisy in that statement is there is no way that it can be done without the forced busing of children.

The court denied the motions for criminal contempt but held the three committeemen in civil contempt of the October 31 order. In order to continue the planning process, however, the court directed the parties to file critiques and alternatives to the December 16 plan, unsponsored though it was. On December 30 the court outlined sanctions to begin January 9, 1975 which could be avoided or purged by a vote to authorize the submission of a student desegregation plan. On January 7, after applications for a stay of sanctions were denied by this court and by the Court of Appeals, the school committee voted to direct the school department to draw up a desegregation plan without forced busing and to authorize the submission to the court of that plan. The court found that the three committeemen had thereby purged themselves of civil contempt provided the plan was authorized and filed by January 20, later extended to January 27. The school committee did authorize and file a plan on January 27.

An alternative plan was filed on January 20 by the plaintiffs, along with criticisms of the December 16 plan by parties including the state defendants, the *227 Mayor and Public Facilities Department, the Boston Teachers Union, as well as numerous community groups and individuals. El Comité de Padres Pro Defensa de la Educación Bilingüe (hereinafter referred to as “El Comite”) was permitted to intervene on behalf of the Hispanic children and parents and also filed comments on the various submissions. The parties then filed comments on each other’s submissions to clarify points of disagreement.

The Home and School Association, comprising chapters of parents, was permitted to intervene on the question of the student desegregation remedy and filed a plan and supporting memoranda which the court treated as a motion to modify its October 31 order. The association attempted to show that certain segregated schools had not been affected by defendants’ actions and therefore were not required to be desegregated in formulating a remedy. The association argued that even within an admittedly dual school system, the remedy should reach only those schools in the system as to which specific findings as to the effect of segregative actions had been made. The court held a separate hearing on February 5, rejected the association’s motion and refused to allow further consideration of its plan.

The court determined that because of the complexity and multiplicity of the school desegregation plans and proposals filed, the use of a panel of masters to hold evidentiary hearings and make recommendations on a desegregation plan to the court was advisable. On January 31, the court appointed two experts, Dr. Robert A. Dentler, Dean of the Boston University School of Education, and Dr. Marvin B. Scott, Associate Dean of the same school, to assist the masters and the court in the task of adopting a student desegregation plan for September 1975.

In an order on February 7, the court formally appointed a panel of four masters (they had been designated on February 5 to allow parties to object to their identity and to terms of the proposed order of reference): retired Supreme Judicial Court Justice Jacob J. Spiegel, who presided at the hearings; former United States Commissioner of Education Francis Keppel; former state Attorney General Edward J. McCormack, Jr.; and Professor of Education at Harvard University Dr. Charles V. Willie. The masters held two weeks of evidentiary hearings, beginning February 10. On March 31, after having heard the parties’ comments on their draft report, the masters filed their final report with the court which recommended a plan prepared by them incorporating elements of the plans submitted by the parties and proposals of their own. The parties then filed objections to the masters’ report. After hearings on these objections, and on objections to modifications proposed by the court after examination by its experts of updated data furnished on April 10 by the school department, the court decided upon the modified version of the plan recommended by the masters which is established by the remedial orders herein promulgated.

Ill

Findings and Conclusions

The findings of fact and conclusions of law that follow constitute many but by no means all of the factual and legal underpinnings of the court’s student desegregation plan and related remedial orders. Numerous findings descriptive of the Boston public school system, its facilities, student body, curriculum, administration and the like, appear in the plan itself. Also, the transcripts of several hearings in open court on the remedial aspects of the case contain many oral findings and rulings by the court which are pertinent. This memorandum of decision deals mainly with the reasons for particular features of the desegregation plan that have been of major concern to the parties.

*228 A.

Plans Submitted by Parties

The plan submitted by the school committee on January 27, 1975 was constitutionally inadequate because it did not promise realistically to desegregate the public schools. It proposed a phased assignment process based on choices by parents and students among a series of options. The assignment process would require a period of up to seven weeks and up to five communications between the school department and the individual parent or student who would be allowed but one week in which to respond to each communication. Magnet programs in citywide and zonal schools would be open on a desegregated basis only, but the ultimate composition of the majority of schools in a zone would be determined by parental choice. For schools which remained “racially isolated”, defined by the school department as more than 15% beyond the racial ratio of the zone at that level, as a result of parent and student choices, the plan provided for mandatory participation of students at those schools at desegregated “third-site Resource Centers” one day a week for elementary schools and one day every two weeks for middle schools.

As pointed out by the masters, any plan that places complete reliance on parental choice to desegregate Boston’s schools cannot be constitutionally adopted. Such plans must be rejected where, as here, there are more effective methods of desegregation reasonably available. Green v. School Board of New Kent County, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716. Complete freedom-of-choice plans have a long history of failing in many cases when adopted to result in desegregation. E. g., Green v. School Board of New Kent County, supra; Monroe v. Board of Commissioners, 1968, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733; Hall v. St. Helena Parish School Bd., 5 Cir. 1969, 417 F.2d 801; United States v. Jefferson County Board of Education, 5 Cir. 1969, 417 F.2d 834.

We need not rely on experience elsewhere, however, to predict the ineffectiveness of such a plan in Boston. Boston’s own experience with open enrollments, feeder patterns and options, and the opening of the Hennigan and Lee schools, set out in detail in the court’s June 21 opinion, Morgan v. Hennigan, supra, at 430-441-56, shows the segregative effects that have occurred under such options in Boston and which in all likelihood would occur again if the school committee plan were to be adopted.

Certainly there have been some magnet programs in Boston, such as the model demonstration subsystem elementary program at the Trotter School, that have achieved integrated enrollments through volunteer applications. To the extent that desegregation in Boston can be achieved on a voluntary basis, the court endorses the concept and incorporates it into the plan adopted. But to disregard the history of desegregation efforts throughout the country and in Boston as the school committee urges we do by adopting its proposal on a trial basis would be to place the realization of the rights of Boston’s black students in a vessel that would begin its voyage rudderless against the wind.

The addition of “third-site resource center” experiences does not save the school committee plan from its otherwise total and therefore unacceptable reliance on voluntary choices to produce desegregation. An integrated experience is no substitute for a desegregated education. The court agrees with Judge Doyle in Denver, who stated, when faced with a similar proposal,

The special education programs which are suggested involving the enrichment offerings together with the open school concept and the special programs designed for use in segregated schools are desirable, but the emphasis is on enriched education and can *229 scarcely be considered a plan for desegregation. Thus, the transporting of students from concentrated schools to enrichment centers for three weeks on a half day basis to intermingle with other ethnic groups while engaging in special programs does not pretend to be a desegregation plan. It impresses us, on the contrary, as a plan which is more designed to avoid adoption of a desegregation plan.

Keyes v. School District No. 1, Denver, D.Colo.1974, 380 F.Supp. 673, 682. See also United States v. Texas Educ. Agency, 5 Cir. 1972, 467 F.2d 848; United States v. Board of Educ. of Webster County, 5 Cir. 1970, 431 F.2d 59; Dowell v. Board of Educ. of Oklahoma City, W.D.Okla.1972, 338 F.Supp. 1256, aff’d, 10 Cir. 1972, 465 F.2d 1012, cert. denied, 409 U.S. 1041, 93 S.Ct. 526, 34 L.Ed.2d 490; Spangler v. Pasadena City Board of Educ., C.D.Cal. 1974, 375 F.Supp. 1304.

The school committee plan presented no more than a hope for desegregation in Boston. The proposed assignment process promised an administrative nightmare, contemplating a seven-week-long individualized assignment process for over 80,000 children. Ultimately it failed to do what the school committee hoped it would, viz., avoid “forced busing”, since it required mandatory transportation of students to resource centers for desegregation purposes. For these reasons and those set out in the Masters’ Report in Part I, pp. 9-16, the court adopts their recommendation and holds the school committee plan to be constitutionally inadequate.

Added to the inadequacy of the school committee plan is a history of the committee’s failing, when granted time by the court, to file promised plans. The promised Option A alternatives to the state court plan last July were filed but not approved by the Boston School Committee. The time granted from September, when a filing date was established, to December 16, resulted in the committee’s repudiation of the plan developed by its school department staff. The month of January was granted for formulation of a plan that failed to promise substantial desegregation. Now, approximately three months before school is due to open in September, time does not permit another court request to the school committee to produce yet another desegregation plan. Under the circumstances the court has no alternative but to take the initiative in devising a desegregation plan. “In default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion a remedy that will assure a unitary school system.” Swann, infra, 402 U.S. at 16, 91 S.Ct. at 1276.

The masters have, in accordance with the court’s order of reference, analyzed and considered the plan filed by the plaintiffs and the plan, repudiated by the school committee, which was filed on December 16 with the court. For the reasons stated by the masters in Part I, pp. 17-28 of their report filed March 31, 1975, and because the court finds the plan proposed by the masters with revisions ordered by the court to be preferable for reasons of feasibility, the court declines to adopt either the plaintiffs’ proposed plan or the December 16 proposed plan.

B.

General Principles Governing Remedy

In making its findings as to plans submitted by the parties and in deciding upon the remedial orders herein promulgated the court has observed and relied upon the legal principles which are set forth under the subheadings which follow.

Basis of Court’s Power and Duty

The power of the court to order desegregation arises out of the court’s finding in June 1974 that the plaintiffs have been discriminated against because of their race and denied equal educational opportunity through intentional segregation. The court is obliged, as it is *230 empowered, to remedy this wrong. An abiding concern must be to assure that minority students are afforded equal educational opportunity. The plan which the court adopts as a remedy in this case does not rest on any supposed constitutional right of a student to attend a school that has a particular ethnic composition, or whose ethnic composition matches that of the school system as a whole.- Swann v. Charlotte-Mecklenburg Board of Education, 1971, 402 U.S. 1, 16, 24, 91 S.Ct. 1267, 28 L.Ed.2d 554; Milliken v. Bradley, 1974, 418 U.S. 717, 741, 94 S.Ct. 3112, 41 L.Ed.2d 1069 n. 19. Nor does the plan reflect any imagined independent constitutional power of the court to decide what educational policies are desirable for the public school system of the City of Boston. Education is a matter entrusted initially to elected local authorities and appointed state authorities. Even after unlawful segregation has been found, responsibility falls initially upon the local school authorities to remedy the effects of this segregation. Brown v. Board of Education, 1955, 349 U.S. 294, 299, 75 S.Ct. 753, 99 L.Ed. 1083 (“Brown II”); Swann, supra, 402 U.S. at 16, 91 S.Ct. 1267. Only the default of the school committee in this case has obliged the court to employ the help of the appointed experts and masters and to draw an adequate plan.

The goal of the court in formulating a remedy for intentional segregation of the schools is to eliminate government-imposed isolation of blacks within the school system. Largely as a result of school committee actions, most students in Boston attend schools that are either “black” or “white”. 4 The remedy in this case must convert this “dual” system to one “without a ‘white’ school and a ‘Negro’ school, but just schools.” Green v. County School Board, 1968, 391 U.S. 430, 442, 88 S.Ct. 1689, 1697, 20 L.Ed.2d 716. This does not mean that all schools in the system must show the same or nearly the same ethnic compositions, but rather that the remedy should eliminate assignment patterns that leave some schools so disproportionate in their ethnic makeup that they are in effect “Negro” or “white” schools—to use the language of Green. The remedy also should eliminate conditions likely to produce such school compositions in the future. Exceptional circumstances occasionally can justify exceptions to pursuit of this goal, but the goal remains.

Barring Affirmative Discrimination

The defendant school committee must be forbidden to take any further actions affirmatively discriminating against minority students on the basis of race. An order to this effect appeared in the court’s opinion and order entered June 21, 1974. Appendix B. It is upon this central concept that the entire desegregation plan rests: that minority students may not be excluded from public school programs or activities on the basis of race, either directly, as happened more than a century ago, cf. Roberts v. City of Boston, 1849, 5 Cush. 198, or indirectly, as has occurred more recently. See Swann, supra, 402 U.S. at 23, 91 S.Ct. 1267. The simplicity of the requirement that affirmative acts of discrimination must end does not, however, imply simplicity of enforcement. The consequences of years of segregative practices will be eradicated only with great effort and understanding. During desegregation, inefficiencies and failures of responsiveness that formerly were only troublesome can become intolerable. Therefore, the plan in this case includes means to assure effective administration, e. g., elementary schools must have principals. Cf. Plaquemines Parish School Board v. United States, 5 Cir. 1969, 415 F.2d 817, 821 n. 2. The plan calls on community *231 districts to develop educational programs suited to the varying needs of students in particular districts. See, e. g., United States v. Texas, E.D.Tex.1971, 342 F.Supp. 24, 30-34, aff’d, 5 Cir. 1972, 466 F.2d 518. And help that in other circumstances would be only desirable—the aid, for example, to be provided in this case by the universities and colleges, and by the several citizens’ groups—becomes essential. Cf. United States v. Texas, supra; and see generally, Hart v. Community School Board of Brooklyn, E.D.N.Y.1974, 383 F.Supp. 699, appeal dismissed, 2 Cir. 1974, 497 F.2d 1027. These points are expanded under the subheading, infra, entitled “Multiplicity of Measures.”

Preventing Continuing Injury

The plaintiffs in this case do not seek a remedy that would compensate them, as a class, for the injury already wrought by the defendants’ long-practiced racial discrimination. That injury, of course, is immense. 5 See Milliken, supra (White, J., dissenting), 418 U.S. at 779-780, 94 S.Ct. 3112. The desegregation plan that the court orders cannot make the plaintiffs whole, nor for that matter, anyone who has been affected by the racial divisions in this city, which are in part traceable to the defendants’ segregative practices. Rather, the remedy must go beyond an order that forbids further acts of affirmative discrimination in order to assure that past discriminatory practices will work no further harm.

Years of segregative manipulation of student assignment, school placement and expansion, and like practices found by the court in this ease, present what the Supreme Court has described as “a loaded game board”; applied to such a school system, student assignment policies that ignore race would perpetuate the effects of the past segregative practices. Swann, supra, 402 U.S. at 28, 91 S.Ct. 1267. The desegregation remedy in this case therefore must offer more than superficial neutrality. It must meet and neutralize the effects of past discrimination. The Supreme Court repeatedly has stressed this necessity, in requiring that a desegregation remedy do more than give effect to the “free” choices of students and parents, when the effect of these choices is simply to maintain the segregation of schools. See, Green, supra; Monroe v. Board of Commissioners of the City of Jackson, 1968, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733.

The day is past when desegregation is to be achieved through the struggle of a handful of pioneering black students willing to attend a school that is identifiably white. Nor