THE ROLE 0F TSDTCEAL REE’TEW m THE DETERMTETETTON GE EBUGETTONAL POLICY AME ACEGTTS A CASE FOR CAETTON L‘issarfsaii-an fer the Degree 91’ Ph D. MTEHESAH STATE UNWERSIW FEATTCTS E}. STEVEENM 1973 WW‘I‘V‘: Wm .. f , M. ,3 a 3 ' 9“ h n h .- :_ [‘4 . . in ' ‘i I." t .7“ CF! " d 8 1,3 - . . 604 , LL. t .mvcrsz‘ay j" H" t...“— 6 h‘.‘ h“ m~.<_ This is to certify that'the thesis entitled THE ROLE OF JUDICIAL REVIEW IN THE DETERMINATION OF EDUCATIONAL POLICY AND ACTIONS A CASE FOR CAUTION i presented by Francis D . Silvernail has been accepted towards fulfillment of the requirements for Social-Philosophi cal Ph D - o o #d m agree Rmdatlons [/ / "j N Z» ’ I degfirgim/ Major professor Date' 10-19-73 0-7639 ABSTRACT THE ROLE OW JUDICIAL REVIEW IN THE DETERMINATION 3? EDUCATIONAL pOLICY AND ACTIONS A CASE “OR CAUTION by Francis D. Silvernail There is an ever increasing number of issues from the field of education which can only seem to be resolved by litination. To verifv such a trend it is only necessary to count the number of recent cases being reported in the various Court Reporters, both at the federal level and at the state level. Such demands on the courts have caused considerable concern bv some educators that, more and more, the courts rather than the school boards or educators are becomine determiners of educational policv. These demands on the court and the resultinq concern of who is to reallv determine educational policv, provides the framework for focusinfi attention on the concept of judicial review. Even thouzh this concept has been written about throuchout our iudicial historv, the volume of recent leqal literature and judicial commentarv about the subject, especiallv in relation to education, indicates that there is a neei for continued reflection about, and develonnent o? processes which mav improve the comfortableness o? the relationship between the Judiciarv and education. ‘ Francis D. Silvernail In the research for this dissertation one decision was evaluated in depth, in an attempt to determine the problems faced when the Judiciary is called upon to Judge litigation involving educational conflict. That decision was the Hobson v. Hanson decision of 1967. Secondly, an extensive study was made of the legal literature, especially Journal articles and court decisions, pertaining to the concept of Judicial review. In the research, the reasoning for both more and less Judicial review was evaluated. The study led to the conclusion that the relationship of the Judiciary to education will continue to be an uneasy one but one which requires continued attention in an attempt to assure equal educational Opportunity and the protection of constitutional rights. It was concluded that in order to improve on the assurance of those rights, it is necessary to direct attention to a concept of separation of powers which utilizes the competencv of educators for educational functions and Judges For Judicial functions. It was also concluded that, the separation of powers, as a conceptual framework, can provide the basis for copperation between the Judiciary and education. This cooperation allows for an improved utilization of the competency of the educator in the evaluation of educational material, even for constitu- tional ends. Alternatives for carrying out this process are also presented in Chapter Five. THE ROLE OF JUDICIAL REVIEW IN THE DETERMINATION OF EDUCATIONAL POLICY AND ACTIONS A CASE FOR CAUTION by Francis D; Silvernail A DISSERTATION Submitted to Michigan State University in partial fulfillment of the requirement for the degree of DOCTOR OF PHILOSOPHY Department of Secondary Education and Curriculum 1973 TO: Pat for her patience, understanding, and belief in the value of the study; WarJorie Lynn who helped me maintain a per- spective when at three years old she asked, "Daddy, how is the dissertation doing?" To which I replied, ”Oh not too bad", and she said, "H-m-m-m, not too bad, that means good doesn't it?" and to Ar. Robert Grav mv home town banker who before the davs of envernment insured educational loans was able to say yes For request for monev to complete my undergraduate education, which of course was the preliminary to further studv. ACKNOWLEDGMENTS Sincere and intense thanks is offered to all those who helped make the completion of this dissertation possible. Their help, concern and support has been invaluable. Speci- fically the help and support of the members of the doctoral committee: Dr. Carl Gross, Chairman, Dr. John F.A. Taylor, Dr. Samuel Moore and Dr. John Hanson is acknowledged. A special acknowledgement is in order for Dr. Gross' willing- ness to serve as Chairman of the committee and for his long years of support in that capacity. Also a special thanks to Dr. John Hanson for his encouragement to me to consider graduate education at the time he supervised my student teaching. I must also acknowledge the encouragement of Dr. George W. Johnson, that I undertake such a dissertation topic. His support in the develonment of the proposal was most valuable. iii TABLE OF CONTENTS CHAPTER I. THE RATIONALE, PURPOSE, BACKGROUND AND OVERVIEW ................................... 1 CHAPTER II. HOBSON V. HANSEN: AN ANALYSIS ................ I“ Overview Student Segregation De-facto segregation and neighborhood schools CODrt's suggestions to overcome educational segregation resulting from neighborhood segregation Court Review of Legislative Acts Personnel Segregation School Board and general administration School faculty segregation Statistics Teacher transfer and turnover rate Teacher placement Administrative and teacher segregation in the individual schools Equality of Distribution of Educational Resources Building construction Library facilities School congestion Faculty differences Actual per-pupil expenditures Curriculum and special programs Ambiguities of Judicial conclusions Unequal facilities, de—facto and de—jure concepts Remedies The Track System Judicial evaluation of reasons for the track system Race, class and tracks Educational theory and the track system Testing, placements and liberal education Track rigidity Judicial remedies Parting Comments CHAPTER III. THE REVIEW OF LITERATURE AND COURT DECISIONS SUPPORTING THE ARGUMENT FOR JUDICIAL RESTRAINT IN POLICY DETERMINATIONS ........................................ 101 Introduction Separation of Governmental Powers: Position of Courts iv Reviewability of Legislative Questions and Administrative Actions: Judicial Commentary Specific Reasoning for Non-Review of Administrative Agencies ' * - Questions Political in Nature Should be Resolved by the Legislative and Executive Branches: Education is one of those Political Questions Competency as a Basis for Policy Determination: Competency of the Judiciary in Non-Judicial Matters, Questioned Impropriety of the Judiciary Substituting its Policies for those Developed by Another Governmental Body or Agency The Courts Function is Not That of An Advisory Agency for Other Governmental Branches or Agencies Courts and Agency Discretion, AS Long as an Administrative Decision is Reasonable, Fair and Non-Abritrary, The Court Must Let the Decision Stand. CHAPTER IV: REVIEW OF THE LITERATURE AND COURT DECISIONS SUPPORTING GREATER REVIEW OF EDUCATIONAL LITIGATION, ISSUES AND PROBLEMSOOOOOOCOOOOOOOOOOOOOOOOOOCOOOOOUOOOO1914 Introduction Constitutionality and Reviewability The Reality of Judicial Review of Legislative and Educational Issues Substitution of Judicial Opinions for Agency or Legislative Opinion is Appropriate Questions Political or Educational in their Essence, Are Not Categorically Outside the Domain of the Courts Questions of Competency do not in Themselves Deter Judicial Involvement Abuse of Discretion Requires Judicial Review The Judiciary is Responsible for Providing Relief when Administrators or Administrative Agencies Act Capri- ciously or Arbitrarily and/or Unreasonably Summary CHAPTER V. CONCLUSIONS AND ALTERNATIVES FOR JUDICIAL REVIEW OF EDUCATIONAL POLICIES ................................ 2N7 A Quasi-Legal Body A Committee for Judging Educational Questions Professional Committee BIBLIOGRAPHY .............................................. 300 CHAPTER I THE RATIONALE, PURPOSE, BACKGROUND, AND OVERVIEW The primary purpose in writing this dissertation is to state the results of an investigation of the potential educational consequences of court encroachment upon educa- tional policy. While the emergence of this problem is not recent and the problem has historical precedent and commentary, the reemergence of conflict between the Judiciary and education as observed in such cases as Robson v. Hansenl suggests that the problem needs further investigation and clarification. Hobson provides an excellent Justification for reaffirming the necessity of directing careful attention to the development of alternatives which can possibly reduce the tension in this conflict. Rationale The pursuit of equal educational opportunity for an increasing number of students is a major concern of contemporary educators. This pursuit is not unique to our lJulius W. HOBSON, individually and on behalf of Jean Marie Robson and Julius W. Hobson, Jr., at al., Plaintiffs, v. Carl F. HANSEN, Superintendent of Schools of the District of Columbia, the Board of Education of the District of Columbia, et al., Defendants. Civ. A. No. 82-66. United States DistriEE CEurt, District of Columbia, June 19, 1967. 269 F. Supp. A01 (1967). times as can be attested to by the historical development of the concept of formal education for the few to formal education for most, if not all, in the United States. To assure that the greatest number shall receive the best possible education, discrimination in education procedures must be based on other than racial or social distinctions. The Hobson decision attempts to affirm that principle as a legal principle and to direct the District of Columbia Public Schools to develop particular remedies to overcome the results of inappropriate discrimination in times past. The decision declared de fagtg segregation unconsti- tutional and attacked the track system. The legal point that .92 1233 segregation is unconstitutional had been previously established in such cases as Brown v. Board pf Education gf 3 Topeka2 and Bolling v. Sharpe_ and the extension of this concept to de £3929 segregation was significant. However, the Hobson decision can cause questions to be raised as a result of suggested remedies for changing the educational framework in the District Schools. The remedies and the interpretation of educational material weakens the case and does little to assure educationally the constitutional protection of the children in the District of Columbia. However, the decision also illustrates the need for educators 23147 U.S. A83, 7A S.Ct. 686, 98 L.Ed. 873 (195A). 33A? U.S. A97, 7A S.Ct. 693, 98 L.Ed. 88A (195A). to create affirmative approaches which will enhance the fulfillment of the constitutional rights of children during the time they are students in educational institutions. The potential educational change to be brought about by the court directives is questionable and in some instances appears to be no more sound than the very practices that the court hoped to overcome. It is necessary, in light of Hobson, to again consider the separation of governmental powers and functions. The historical triad of powers is executive, legislative, and Judicial and the case provides the basis for the discussion of the appropriate separation of and exercise of Judicial power. The argument put forth is that the limits of Judicial power have been well defined and that it should remain for the Judiciary to decide only those issues that come clearly within its domain. The actions of educators are, in essence, administrative even though the authority for such actions is derived from the legislative branch. However, it is not for the legis- lature to pass Judgment upon those acts, though the legisla- ture can change the law or statute to affect the legal basis upon which the educator Operates in the similar way that the Judicial branch, by declaration of unconstitutionality, forces the legislature to consider alternative modes of legislation. Hence, this writer believes that the Judgment of educational process or policy should properly be placed in the hands of and carried out by professional educators. The refusal of the appeals court" to reverse the Hobson case leaves the decision as law and implies the acceptance of an ever expanding involvement of the court in educational policy; hence, encroachment by the courts into administrative and legislative matters. Furthermore the principle that interpretation of educational material for the purpose of determining legal questions and constitutionality can adequately be done by the Judiciary continues unchecked. The debate as to the decision's potential as a land- mark case continues. It is certain, though, that it has influenced education and specifically educational patterns in the public schools of the District of Columbia. Evaluation of this decision leads to the conclusion that it is a decision which should not stand as a landmark case. It unJustifiably encroaches upon the legislative branch of government and it verifies Judge Wright's own Judgment that "it is regrettable, of course, that in deciding this case this court must act in an area so alien to its expertise."5 The literature following the decision containsl numerous articles about the decision in a broad spectrum of periodicals, ranging from popular magazines such as Saturday ”Infra, p.10. Smuck v. Hobson, A08 F.2d. 175 (1969), appeal dismissed 393 U.S. 801, 89 S.Ct. 40 (1968). 5Hobson, 517. Review6 and US News and World Report7 to the more professional Harvard Law Review.8 The debates in this literature focus on whether this was a landmark decision or one of dubious value, as well as the implications of the decision. There is little evidence in the case that the court understood what the consequence of its directives and remedies might be as they affect the lives of the peOple involved in the system. If the purpose of the decision is to change the schools so as to improve in reality the quality of education it is questionable that the decision will succeed. One of the obJectives of school systems must be the reduction of failure in achieving the primary purpose of educating youth; therefore, alternatives other than those suggested by the Ju- diciary must be develOped and evaluated and which will provide greater potential for success than those presented in Hobson. Concern by both educators and legal experts about encroachment by the legal profession upon educational matters indicates a need to evaluate what the role of the courts ought to be in the determination of educational policy. Increased Judicial review of education is a concern 6"Judge Wright Faces North," Saturday Review, L (July 15, 1967), 51. 7"As Nation's Capital Goes All Out for Integration," US News and World Report, LXIII (July 17, 1967), SA. 8"Hobson v. Hansen: Judicial Supervision of the Color-Blind School Board,” 81 Harvard Law Review, 1511 (1968). eXpressed throughout educational circles and society generally. This concern is often expressed in such a way as to imply a negative rather than positive attitude about the involve- ment of the legal profession in education. Hobson contributes to that Obncern. To give the courts further reason to pause before claiming the right to evaluate educational policm,it should be remembered that the court has been willing to admit that some conceptualizations in their field, such as that of Judicial power,9 are not capable of precise definition but they have 10 Education is been willing to define what education is. no more eligible for precise, absolute definition than is Judicial review. It must also be remembered that education is a political or governmental right and not a constitutional or private right.11 A crucial concern here is the quality of education which is available to the student, not that which might hope- fully be brought about someday. The need to develop policies which enhance the constitutional rights of the individual citizen to equal opportunity of education is without question. The issue to be resolved is whether the desired quality of 9 7 Ruling Case Law 1029. State v. Creamer, 97 N.E. 607. 10 19 Corpus Juris 1014. 28 Corpus Juris Secundum 832 and citations in both instances. ll 79 Corpus Juris Secundum 3A9, para. NAB. education is best achieved when educators are required to carry out their obligations or when the courts make the decisions about educational policies. For the courts to decide is to discourage leadership and encourage mediocrity on the part of the profession. It can delay policy decisions for unnecessary lengths of time. Such procedures take away the right of the profession to exert its leadership except through court testimony and such things as amicus curiae briefs. A clarification of and delineation of a more satisfactory functioning of the courts and of the education profession can provide us with more assurance of the protection of constitutional rights educationally and of a higher quality of education for all. Judicial review is for the purpose of reviewing constitutional questions. Of that review there is no question. The review of educational policy for educational purpose by the court is questioned. An analysis of the Hobson decision and an investigation of the more general principles of law will help achieve a clarification of a more satisfactory functioning of the courts and of the profession. It may appear that the Judiciary must accept all of the blame for encroachment upon the field of education. However, the Judiciary has been forced to this encroachment by the unwillingness of educators to provide leadership in affirming the law as developed by the courts. In no way is the educational field excused for this failure. This lack of leadership requires that educators share the blame equally with the Judiciary for the latter's involvement in educational policy. With relative consistency the courts' review and involvement has been to correct unconstitutional behavior on the part of the profession and to correct the profession's continued and blatant refusal even to carry out the letter, not to mention the spirit of the law. Purpose An analysis of the Hobson decision is one of the pur- poses for writing this dissertation. The analysis requires consideration of the consequences of the court's remedies to the educational profession and consideration of the potential impact of the decision upon the education received by students in the District of Columbia. Germans to this purpose, as stated earlier, is an evaluation of the impact of the court's exceeding its constitutional limitations and of the court's determining educational policy. Also,a purpose of this study is an investigation of established court precedent and the theoretical literature in reference to court encroachment upon educational policy. Still another major concern in.this dissertation is the development of alternatives which will help to resolve the problem of conflict between the Judiciary and professional educators and to enhance more adequate interpretation of educational matters which are involved in the pursuit which guarantees students equal protection under the law. General principles of law emerge from the analysis of Hobson,and in this dissertation there is an attempt to clarify these principles and to search out their significance as they affect educators and educational policy. Finally, Hobson has numerous merits in its implica- tions for educators which might have been clarified and affirmed in the appeal. However, the appellate court's review was limited and did not significantly contribute to a clarification of these issues. Therefore, it is the purpose here to clarify some of those issues. Background The writer became interested in the Hobson case during his tenure in Washington, D.C., as Director of the Antioch Graduate School's Urban Teaching Intern Program. This posi- tion required his involvement in the problems of the District of Columbia's education system and his awareness of the frustrations in attempts to improve the system. For teaching interns in this program seminars were arranged with both Mr. Julius Hobson and Dr. Carl Hansen. In these seminars and in private conversations, it was possible to learn about both men's hopes and frustrations as they attempted to improve the system. This direct involvement in the District of Columbia Public School System was the catalyst for interest in this case and for following the prelude to the case and its arrival in court. The reading of the 10 decision in July of 1967 as it appeared in the Congressional Record on June 21, 1967, caused great concern about the implications of this decision for educators. It seemed certain that the case would be appealed and that many of the issues in the case would be apprOpriately clarified, deleted, or extended. The decision was upheld on January 21, 1969, by a four-to-three decision with the United States Court of 2 Appeals for the District of Columbia sitting en banc.1 Overview The basic point from which this dissertation develops is that the Judgment in Hobson is an encroachment upon admin- istrative actions and to some degree upon the legislative branch of government, which in this instance were the actions of the Superintendent of Schools and the Board of Education. This point is established in Chapter Two as a result of analyzing the case page by page. Also in Chapter Two, general principles of law which are germane to the problem of Judicial acts, ultra vires in nature, in cases involving education are developed. The detailed analysis is used for the purpose of illustrating why the courts ought to be cautious when dealing with educational matters and even when interpreting educational issues for constitutional Judgments. The mis—internretation and resulting poor theory becomes q 1CSupra n. A, p. A. It is of interest to note that one of the dissenting opinions in this decision was written by Warren Burger who was later sworn in as Chief Justice of the U.S. Supreme Court on June 23, 1969. ll apparent in the analysis. The Justification for cautioning against increased expansion of court action is developed upon potentially negative educational consequences. The role of the courts in policy determination as deve10ped by court precedent and by the theoreticians is the concern of Chapters Three and Four. To consider this role adequately, investigation of administrative law and Judicial review in cases where the substance of the case was other than education was necessary. Chapter Three deals specifically with the Justification for non—involvement by the courts,and Chapter Four deals with the specific conditions under which it is justifiable for the courts to be involved in what appear to be educational policies. Throughout both of these chapters it is necessary to consider a related issue in cases which are substantively educational. In the general sense the topic is one of jurisdictional rights. Specifically it deals with the use of Judges for non-judicial matters, a concern most germane in the analysis of hohson. One complete 13 section of the first Hobson case deals with this very matter. The arguments are presented in this dissertation because they support the need for Judiciary caution when the judiciary is tempted to involve itself in matters foreign to its expertise. l3Hobson v. Hansen, 265 F.Supp. 902 (1967). Note that ’ ' -known decision and was tation 18 to the less well . . Sgiidgé prior to the case handled in depth throughout this dissertation. 12 Evidence presented,both in the cases reviewed and in theoretical discussions by those whose competency is in law,conflict. The arguments on both sides must be recognized as well-reasoned and appear to be a matter of disagreement between honest men of intellectual and legal integrity. However, people must make choices about the conflict and in Chapter Five the nature of the conflict is investigated. By use of the now famous principle that we are a nation of laws not of men,lu suggestions are made as to potential alternatives for resolving the dilemma as the legal profession continues to be called upon to Judge educational issues and interpret educational policy. Based then upon the acceptance of the propositions that the present Judicial processes for making educational decisions are inadequate and that educators are often remiss in carrying out their professional obligations, need for change becomes clear. Also in Chapter Five possible alterna- tives for both the Judiciary and educators, but especially for educators, are presented and evaluated. These alternatives require that consideration be given to further investigation into related areas. The areas are delineated and explanations are given for their particular significance. There are, of course, many other issues which could be appropriate concerns of this dissertation. However, these lLlMarbury v. Madison, 5 U.S. (Crunch) 137 (1803); 2 L.Ed. 60 (1803). 13 concerns are separate studies in and of themselves. They are stated throughout the dissertation and when appropriate included in footnote references. Alternatives suggested as a result of this study are limited to the obligation of education to carry out the law and to the potential for the use of court-appointed referees or special commissions to interpret and pass Judgment on educational matters. CHAPTER II HOBSON Y. HANSEN: AN ANALYSIS Overview In 1966 Julius W. Hobson, et_al,, brought suit in Civil Action No. 82-66 against Carl Hansen,Superintendent of Schools of the District of Columbia, the Board of Education which included each Board member, the Judges of the District Court for the District of Columbia, and members of the Board of Elections of the District of Columbia. With the exception of Carolyn Hill Stewart,the Plaintiffs were acting individually and on behalf of their children enrolled in schools in the District of Columbia. The Plaintiffs also presented the action as a class action. The members of the Board changed during the time that the action was in process and as new members were appointed they also became Defendants. During the time the action was in process the necessary changes were being made in the matter of election processes and statutes in the Code of the District of Columbia to make the Board an elected body. This was completed and the Plaintiff Julius w. Hobson was elected to the Board following the decision in this case and he also became the Board president. He served for one term and was defeated for reelection in 1970. IA 15 Carl Hansen,the Superintendent of Schools resigned in conflict with the Board over an appeal of this decision soon after the decision was handed down. The District of Columbia Public Schools were then under the direction of Mr. BenJamin Henley, Acting Superintendent, followed by Dr. Manning and then Dr. Hugh J. Scott, who served into 1973. In charges filed January 13, 1966, Plaintiffs contended that, in essence, the Board of Education was functioning unconstitutionally because of the process of appointing its members by Judges of the District Court. Because the Board was alleged to be functioning unconstitu- tionally the Plaintiffs also contended that Dr. Hansen, having been hired by the Board, was functioning unconstitu- tionally as Superintendent of Schools. This cause of action was separated and heard in another case before a three-Judge court.l That decision upheld the constitutionality of the process for selecting the Board though it was a split two-one decision. The dissenting Judge was J. Skelly Wright who later became the Judge sitting alone to hear the remainder of the causes for action. The second cause for action, according to the Plaintiffs, was that: lHobson v. Hansen, 265 F.Supp. 902 (1967). 16 The defendants, and each of them, have at all times operated and, unless restrained as a result of this action, will continue to operate the public school system of the District of Columbia in such a manner as to discriminate against the infant plaintiffs solely because of their race and/or color, all in violation of the Fifth Amendment to the Constitution of the United States. 2 The Plaintiffs, to verify this charge, offered as evidence the use of the track system, practices which encourage Juvenile delinquency, distribution of supplies and public revenues, acceptance of private monies to further enhance the superior education of whites, use of policemen, teacher promotions, lack of utilization and improper distribution of Elementary and Secondary Education Act of 1965 funds, assignment of teachers, the drawing of geographical boundaries, and the refusal to carry out the mandate of the U.S. Supreme Court in Bolling 1. Sharpe.3 The third cause of action stated by the Plaintiffs was one that implied lack of educational leadership on the part of the Defendants. Defendants have failed, refused and neglected and continue to fail, refuse and neglect to demand adequate funds from the agencies of the District of Columbia and the Congress of the United States with which to [properly] operate A the public school system under their control. 2The Plaintiffs' Complaint as filed on January 13, 1966, in District Court of the District of Columbia, p. 9. 3Ibid., 10—13. thid., 13. 17 The remaining causes extended the charges to the area of economic deprivation as well as racial and/or color discrimination. The Plaintiffs were represented by William M. Kunstler, Jerry D. Anker and Herbert 0. Reid, Sr. Defendants were represented by John T. Duncan, Corporation Counsel for the District of Columbia, Matthew Mulaney, Jr. and John A. Earnest, Asst. Corporation Counsel, and James M. Cashman and Robert R. Redman, Asst. Corporation Counsel. The Judge for the case was J. Skelly Wright. Besides being the dissenting Judge in the earlier Hobson v. Hansen 5 decision, he had gained attention for his article,"Public School Desegregation: Legal Remedies for the Q§_Facto "6 Segregation and was the Judge in Bush X- Orleans Parish School Board.7 Judge Wright found, in essence, that the defendants did, in fact, operate the schools in such a way as to "unconstitutionally deprive the District's Negro and poor public school children of their right to equal educational opportunity."8 5Supra, n. 1, p. 15. 6J. Skelly Wright, "Public School Desegregation: Legal Remedies for Dg_Facto Segregation," 40 New York Law Review 285 (1965). 7138 F.Supp. 337 (1956). 8Hobson v. Hansen, 269 F.Supp. A01 (1967). Herein- after referred to as Hobson. Appeal dismissed 393 U.S. 801 89 S.Ct. 40 (1968). 18 To support the conclusion that he had reached,Judge Wrigrt offered eleven principal Findings of Facts, most of which supported the charges brought by the Plaintiffs in the original complaint. Judge Wright commented upon a broad spectrum of issues in these Findings of Facts. Briefly stated the areas covered and commented upon in support of the conclusions were as follows: Racial and social homogeneous grouping, Relationship of scholastic achievement to racial and socio-economic factors, Racial composition of the School Board, Neighborhood school policy, Teacher assignment, Per pupil expenditures, Overcrowding, Reading scores of the Plaintiffs as a class, and the lack of improvement in those scores, the Track system, and finally, the Testing program. As indicated in Chapter One, there is little debate about the purely legal aspects of Hobson in its extension of equal protection to those affected by dg_fagtg as well as 92.1EES segregation. That part of the decision is not analyzed in this chapter. What is analyzed is how Judge Wright interpreted the educational material, drew conclusions from that material, and Justified Judical review in this case in order to determine that; The Superintendent of Schools and the members of the Board of Education, in the operation of the public school system here, unconstitutionally deprive the District's Negro and poor public school children of their right to equal educa- tional opportunity with the District's white 9 and more affluent public school children. 91bid., uoé. 19 Prior to the development of the analysis it is appropriate to indicate that in addition to the use of the decision as it appears in the Federal Supplement, considerable time was given to reading the materials as they appeared in the four volumes of the offical court record on file at the Courthouse in Washington, D.C. The transcripts which were a part of the official record were also read and some of the exhibits explicitly filed with the case were examined. One other point which needs attention is the emphasis that Judge Wright placed on the designation of poor as well as Negro. In many of the instances referred to in the District, either category of classification is inclusive of the other. However, to suggest the poor as a classification raises a whole new area of consideration in the protection of the educational rights of citizens. The historical trend has been to assure that education will be more available to more people, but to evaluate this in terms of equality of facilities, personnel, and curriculum in the courts is to extend Judicial action beyond the present precedence in the assurance of civil rights. This concept has received significant attention from Arthur Wise, author of Rich Schools, Poor lO Schools: The Promise of Equal Educational Opportunity. loArthur Wise, Rich Schools, Poor Schools: The Promise of Equal Educational Opportunity, (Chicago, University Press, 1969). 20 In turn, however, the thesis of Mr. Wise has been challenged by David L. Kirp writing in the Phi Delta Kappan.ll Judge Wright made mention of the poor from time to time throughout the decision but did not really develop the case around the poor. Mainly he addressed his evaluation to the problem of the black children, some of whom were also economically poor. Commentary on this problem is provided in the Harvard Law Review. While noting the difficulties in dealing with the concept of the poor,yet attempting to save the principle as one which needed attention, in the review it was stated: The court seemingly uses the words 'poor' and 'Negro' interchangeably in its analysis of educational problems, . . . This approach is too facile; the constitutional status of the poor at least deserves separate analysis On balance, however, the court is probably correct in not trying to distinguish between the poor and the Negro in the application of its standard. . . . Although extending the Hobson standard to all 'disadvantaged minorities' gives the decision such broad scope that it may cause serious institutional problems, institutional problems do not Justify drawing an untenable distinction between2Negroes and equally under- privileged whites. 11David L. Kirp, "A Critique of Wise's Thesis", Phi Delta Kappan, LI:3 (November, 1969) lA8-l50. It must be noted that Judicial precedence is expanding to include the inequities caused through unequal financing even though the Supreme Court has now acted. See San Antonio Independent School District v. P. Rodriguez,93 S.Ct. 1278 (1973) an.re— versalcd‘337 F.Supp. 280, Serrano v. Priesg U87 P 2d. 1241 (1971) and Robinson v. Cahill, 287 A 2d 187(1972), l2"Hobson v. Hansen: Judicial supervision of the color-blind school board," 81 Harvard Law Review 1511 (1968), 1523. 21 The relevant point here is that had Judge Wright, in the decision,dea1t more significantly with the problem of the poor, it might have contributed significantly to the decision's potential as a landmark case. However, the uniqueness of dealing with the category of poor as well as Negro would have required a far greater amount of court activity in terms of testimony and legal delineation. A great deal more time would have been needed in order to evaluate fully what it would mean to assure equal protection of the law for the poor. The court record of the Hobson decision as it appeared in the Federal Supplement was organized around three sections: Findings of Fact, Opinion of Law, and Remedy. This Chapter is organized around the maJor subdivisions found in the section Findings of Fact. Some of these subdivisions have in turn been subtitled to enhance clarity and to reduce the need to discuss a tOpic a second and third time. The four maJor categories for analysis and discussion are: Student segregation, Personnel segregation, Equality of distribution of resources, and the Track system. At the end of Chapter Two is a short discussion of the principles of law which will be further examined in Chapters Three and Four. 22 Student Segregation In this subdivision the analysis indicates that the issue of student segregation contains little with which one can argue. It is quite clear that a school system with better than 90% Negro population will probably be segregated; unless I) The white and black populations are appropriately evenly dispersed throughout the district, or 2) The district abandons its neighborhood school pattern since the city's housing pattern is segregated, and/or consequently 3) The district develops procedures for transporting both black and white students into other neighborhoods in order to assure the desired racial integration. As the following discussion will illustrate, there are some interpretations of material which cannot help but raise questions about the credibility of the decision and of the remedies put forth. Judge Wright found that the operation of the schools, mainly by the administration, encouraged segregation of students as charged by the Plaintiffs. He suggested that the school system's policies resulted in more segregation than was necessary, a valid criticism even if the increased segregation was not the intent of the administration. It is apparent that Judge Wright felt that the integration of the schools could be improved if optional zones were no longer allowed, if the neighborhood school policy were rejected as a primary basis for geographical 23 school zones, and if some students were bussed voluntarily from east of Rock Creek Park to schools west of the Park. He made integration of schools a primary obJective by which to measure educational success or potential. Judge Wright overlooked some significant and difficult evidence that the integration