The 6th U.S. Circuit Court of Appeals yesterday ordered Dayton Schools to open this fall under a desegregation plan that was dismissed by a district judge last November.

The court's unanimous decision, which calls for the busing of 13,000 of the district's 37,000 students, is the ninth federal court ruling rendered in the Dayton desegregation case since its inception in 1972.

The city had been operating peacefully under a busing plan for two years, although the period was marked by accelerated white flight from the city schools.Then last November, when U.S. District Court Judge Carl B. Rubin dismissed the desegregation case, masses of parents applied to return their children to local schools, Rubin, who originally ruled in 1973 that Dayton schools were segregated, had been ordered to reexamine the case in light to appellate and U.S. Supreme Court decisions.

The appellate court, which has had four major reviews of the case since 1973, concluded that the Dayton school board "intentionally operated a dual school system," and that they "perpetutated or increased public school segregation in Dayton."

he court said the school board "utterly failed to comply with its 24-year obligation to desegregate," and added they "have committed affirmatives acts that have exacerbated the existing racial segregation."

There was no immediate comment from school officials about the possibility of yet another appeal to the U.S. Supreme Court.

Board member Virginia McNeal, a black, said she was overjoyed with the decision. Board member Phil Sparks, a white, declined comment on the decision except to say, "I'm disappointed we'll have to continue busing this fall."

Initial reaction to the decision by East Dayton whites was predictably negative. West side blacks supported the decision.

Dayton schools have lost 25 percent of their enrollment since the NAACP filed for desegregation. No tax levies to support the school district have been passed since court proceedings began seven years ago.

Dayton's history of judicial pingpong:

In February 1973 U.S. District Court Judge Rubin ruled Dayton was operating a deliberately segregated school system. Five months later, he approved a desegregation plan submitted by the school board's conservative majority which relied on science centers and other part-time programs in a limited magnet school concept.

But the NAACP appealed the plan and one year later a three-judge 6th Circuit Court of Appeals panel ordered Rubin to develop anothe plan.

The board presented another plan relying on magnet schools and special programs to Rubin in 1975 and he approved it.

But the plan was appealed by the NAACP and Rubin was again ordered by the appellate court to prepare a new desegration plan.

In March 1976 Rubin approved the present plant, calling for the busing of 13,000 students between 37 elementary and four high schools.

The school board again appealed to the 6th Circuit Court of Appeals. The court rejected the board's arguments tha the plan exceeded th scope of the violations and the case was taken to the U.S. Supreme Court.

The high court ruled that the busing plan was "entirely out of proportion for the constitutional violations found in the lower courts." It sent the case back to Rubin.

School opened in September 1977 for the second year under court-ordered busing without violence.

But in November, Rubin ruled that under new legal guidelines, no unconstitutional segregation was present in Dayton schools and no plan was needed. The NAACP obtained a stay of Rubin's order and students were bused through the end of the year.

Tje appeals court yesterday concluded that the Supreme Court's decision "was not intended to change the standards for fashioning remedies in the school desegregation cases."