CLARK, Circuit Judge.
This is a class action brought by eleven Negro children through their parents, on behalf of all Negro children situated in the Lincoln Elementary School District in New Rochelle, New York. Plaintiffs seek principally a permanent injunction enjoining the defendants, the Board of Education and the Superintendent of Schools of the New Rochelle City School District, from requiring them to be registered in a racially segregated public elementary school and requiring the defendants to register them in .a public elementary school that is racially integrated. After an extensive trial the District Court, per Kaufman, J., on January 24, 1961, wrote a detailed opinion, reported in D.C.S.D.N.Y., 191 F.Supp. 181, malting findings of fact and conclusions of law supporting the plaintiffs’ case and directing the defendant Board to present to the court on or before April 14, 1961, a plan for desegregation to begin no later than the start of the 1961-62 school year. Reference is made to this opinion for a detailed statement of the facts here relevant.
The defendants took an appeal, which this court, by divided vote, dismissed as premature. Taylor v. Board of Education, etc., 2 Cir., 288 F.2d 600. Thereafter proceedings were had below resulting in an opinion and decree of May 31, 1961, D.C.S.D.N.Y., 195 F.Supp. 231, which directed the defendants to allow students in the Lincoln Elementary School (the school here in issue) to transfer to other elementary schools within New Rochelle. To comply with the court’s directive the defendants had submitted with reluctance a plan for such transfers under conditions which the court found unduly burdensome. So the court in accepting the plan rejected all conditions — other than those of detail as to the time and manner of application— except two, viz., that parents must provide any necessary transportation at their own expense and that there must be ¡available school space for the transferees. It is from this decree — further details of which are noted hereinafter — that the present appeal is taken.
A major finding of the court below was that the defendant School Board had deliberately created and maintained Lincoln School as a racially segregated school. This crucial finding is, we conclude, supported by the record. Thus, around 1930, an area of several blocks, occupied by whites, was carved out of the Lincoln District and added to the Daniel Webster District, even though this area was adjacent to the Lincoln School and was a relatively long distance from the Webster School. When Negroes later moved into this area it was restored to the Lincoln District. In addition, children from the predominantly white Rochelle Park within the Lincoln District were removed from that district and assigned to the Mayflower School. It also appears that until 1949 the Board allowed white children within the Lincoln District to transfer to other schools, with the result that Lincoln School in 1949 was 100 per cent Negro. The defendants sharply attack the testimonial evidence received on this issue; but the basic facts just recited, which appear incontrovertible, support the finding and leave as the vital problem the later conduct of the Board and its present responsibility for the conditions stimulated prior to 1949.
On January 11, 1949, the Bo.ard adopted a policy of refusing further transfers and of admitting new students only to the school of the district in which they reside. This policy of attendance at the school of the district of residence, the “neighborhood school policy” or NSP, had been in existence for some time, but with the amelioration provided by the system of permissive transfers; henceforth it was to be applied with complete rigor. While it did mean that a small number of white children were retained in the district, yet it served to fix the Lincoln School as a segregated one, so that it is now 94 per cent Negro. At the same time that the Board settled its policy in 1949, it promised a study of district lines with a view to setting up school districts in terms of the best interests of all the children and of the most complete utilization of the present physical plant; and thereafter it caused several surveys to be made by its own school personnel or others. One of the most complete was that made by a professorial team from Teachers College, Columbia, and the School of Education of New York University, resulting in December 1957 in the Dodson Report, so called from its Director, Professor Dan W. Dodson, a specialist in the field who testified for the plaintiffs below. This report, whose official title was “Racial Imbalance in Public Education in New Rochelle, New York,” was a most comprehensive statement of the problem and an admonition to the Board to make a broadly based attack upon the evil of segregation, with specific recommendations more extensive and drastic than those in the decree under appeal. See D.C.S.D.N.Y., 191 F.Supp. 181, 188-190.
Major recommendations of the Dodson Report included proposals for the rebuilding of a larger Lincoln School on the same site, with the discontinuance of nearby Washington School, together with extensive redistricting and a more flexible use of NSP in the future. But the Board took no action other than to propose rebuilding the Lincoln School on its present site, which in the light of the Board’s policy of refusal to allow children to transfer to schools in other districts would mean a freezing in of segregation at Lincoln. The proposal, once defeated, was, however, eventually carried by referendum vote of the New Rochelle voters in May 1960; and the imminence of plans for the rebuilding of Lincoln precipitated this class action instituted in October and brought to trial in November 1960.
It must be acknowledged that the problems facing the Board, while not peculiar to this community, are serious and difficult. They arise when people of a single racial group tend to settle in a particular neighborhood such as the Lincoln District here, and the trend -is accelerated by housing developments and real estate transactions increasing the group numbers. Even so, the action of public bodies, of which school boards are most potent because of the importance of public education in American life, must be in accordance with the constitutional standards as expounded by the Supreme Court. The facts recited above showing the Board’s acceleration of segregation at Lincoln up to 1949 and its actions since then amounting only to a perpetuation and a freezing in of this condition negate the argument that the present situation in Lincoln School is only the “chance” or “inevitable” result of applying a neighborhood school policy to a community where residential patterns show a racial imbalance. Rather they make it appear that the Board considered Lincoln as the “Negro” school and that district lines were drawn and retained so as to perpetuate this condition. In short, race was made the basis for school districting, with the purpose and effect of producing a substantially segregated school. This conduct clearly violates the Fourteenth Amendment and the Supreme Court decision in Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, 38 A.L.R.2d 1180. See Clemons v. Board of Education of Hillsboro, Ohio, 6 Cir., 228 F.2d 853, certiorari denied Board of Education of Hillsboro, Ohio v. Clemons, 350 U.S. 1006, 76 S.Ct. 651, 100 L.Ed. 868; Holland v. Board of Public Instruction of Palm Beach County, Fla., 5 Cir., 258 F.2d 730.
So the present 94 per cent Negro enrollment at the Lincoln School goes beyond mere “racial imbalance,” and approximates closely the harmful conditions condemned in the Brown case. Since these conditions were the result of the deliberate conduct of the Board, the plaintiffs and those similarly situated are entitled to some form of relief.
The plan which the court eventually adopted is one noteworthy for its moderation. It is not one supported by the Dodson Report, but it appears to have been followed with at least fair success in other cities such as Baltimore. It can be put into operation with little administrative difficulty or public expense, as the Board showed in the submission of its own plan, which is the actual basis of the decree finally entered. Under this decree, students who would normally enroll at Lincoln School may apply for transfer to other elementary schools in New Rochelle. They may list at least four choices in order of preference, and are entitled to transfer to the same grade as they would attend at Lincoln, without any necessity of emotional or academic testing or approval. The parents of the students who elect to transfer are obligated to furnish transportation at their own expense; and the right to transfer is subject to the existence of room in the other schools, within the limits of the Board’s present policy of maximum class size. We think this plan an eminently fair means of grappling with the situation, in accord with the principles stated in the Brown case. Doubtless it will not solve all problems, but it does call for a sincere attempt at recognition of the principle of desegregation in this community. The court’s retention of jurisdiction to assure full compliance with the decree gives it also power to make or consider modifications as the need therefor may appear.
The decree must therefore be affirmed. On remand the district court, in view of the delay, will undoubtedly wish to set a later date for applications for transfer for the current school year. We see no occasion to grant a stay of the decree; the Board is called upon for no new public expenditures and will suffer no loss, while the school children will be prejudiced by what will soon be necessarily a year’s delay at this crucial period in their education.
Decree affirmed.
. The Board makes much of a decision in its favor in an adversary proceeding brought by these plaintiffs before the State Commissioner of Education. But from the terms of the decision we are forced to conclude that that official did not feel himself subject to the eonstitutional constraint to the same extent as we do.
. Under the circumstances we need not examine the interesting issue how far a public body may save itself from constitutional constraint by mere inaction.
. The petition to intervene presented by Seth M. Glickenhaus et al., the throe minority and dissenting members' of the nine-member Board, is denied, since the point they wish to make, that the appeal here-was not authorized by official Board action, appears not to be well taken. Of course their . general stand in favor of more affirmative action against school segregation accords with the decision here and in the court below.
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is an appellant.