# Bronson v. Board of Education

> District Court, S.D. Ohio · February 11, 1982 · 535 F. Supp. 846

URL: https://www.frixlaw.com/law-library/cases/8877983

## Case

- **Full name:** Mona BRONSON v. BOARD OF EDUCATION OF the SCHOOL DISTRICT OF the CITY OF CINCINNATI
- **Court:** District Court, S.D. Ohio
- **Decided:** February 11, 1982
- **Citations:** 535 F. Supp. 846; 3 Educ. L. Rep. 889; 1982 U.S. Dist. LEXIS 10910
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Rice
- **Judges:** Rice
- **Cited by:** 3 later opinions in the Frix Law Library

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## Opinion text

TABLE OF CONTENTS
INTRODUCTION ......................... 849
I. Positions of the Parties................ 850
A. Plaintiffs ....................... 850
B. Defendants...................... 851
II. Summary of Discussion................ 852
III. Synopsis of Conclusions................ 860
DISCUSSION ............................ 861
I. Pre-1975 School Desegregation Cases Considered by Sixth Circuit: Held to Have Changed No Law Applicable to Deal..... 861
A. Green, Raney, and Monroe: Considered by District Court and Sixth Circuit in Deal II, 1968, 1969 ....... 861
1. Conclusion of District Court and Sixth Circuit: Inapplicability of Green, Raney, and Monroe to Deal 861
2. As Remedy Cases, Green, Raney, and Monroe Were Inapplicable to Deal 864
*849 B. Swann and Keyes: Considered by the Sixth Circuit in Bronson, 1975 ....... 865
1. Inapplicability of Swann to Deal 866
2. Keyes: No Changes in the Law of School Desegregation Warranting Departure From the Application of Collateral Estoppel .......... 867
a. Keyes: Supreme Court Holding That a Finding of Contemporary De Jure Segregation in a Portion of the School System Is Highly Relevant in Assessing Claim of Current, Systemwide De Jure Segregation ..................... 869
1. The District Court ...... 869
2. The Tenth Circuit Court of Appeals............. 870
3. The Supreme Court ..... 870
b. Sixth Circuit’s Discussion of Keyes in Bronson .......... 874
c. Most of the Principles Developed by the Supreme Court in Keyes Were Not Directly Applicable to Deal Because, Unlike the Keyes Plaintiffs, the Deal Plaintiffs Failed to Prove Contemporary De Jure Segregation in any Portion of the Cincinnati School System 875
II. Columbus and Dayton II: Post-1975 School Desegregation Cases, Not Considered by the Sixth Circuit in Connection With Deal and Bronson......................... 878
A. Preliminary Comments ............ 878
B. Evolutionary Developments: Extension of Keyes’ Principles to Non-Statutory Dual School Systems, Created and Maintained by Remote, Intentionally Segregative Acts ................. 879
C. Reconsideration of Deal in Light of Columbus and Dayton II: Conflict in Legal Principles.................. 883
1. Re-examination of Deal: Legal Import of Historical Facts ...... 883
2. Sixth Circuit’s Position on the Legal Import of Historical Facts in Deal Unaffected by Pre-1975 Supreme Court Desegregation Cases ....................... 886
3. Sixth Circuit’s Position on the Legal Import of Historical Facts in Deal Compared to Supreme Court’s Position as Developed in Columbus and Dayton II........ 887
a. Re-examination of Columbus and Dayton II............. 888
b. Supreme Court Position on Evidence of School Board’s Remote Discriminatory Practices Offered to Meet Plaintiffs’ Initial Burden of Proof 891
e. Sixth Circuit’s Position in Deal II Eliminated as a Viable Legal Option Under Columbus and Dayton II............. 892
III. The Sixth Circuit 1975 Bronson Opinion and the Application of Collateral Estoppel • In Light of Columbus and Dayton II..... 894
A. Collateral Estoppel: General Principles and Necessary Inquiries........ 894
B. Sixth Circuit 1975 Bronson Opinion: Conclusions as to Appropriate Application of Collateral Estoppel.......... 898
C. Appropriate Application of Collateral Estoppel In Light of Columbus and Dayton II....................... 900
1. Broader Rules of Res Judicata Inapplicable.................. 900
2. Identity of Issues In Light of Columbus and Dayton II........ 900
a. Collateral Estoppel Inapplicable to Issues Not Actually Litigated and Determined in Deal..................... 900
b. Collateral Estoppel Technically Applicable to Issues Actually Litigated and Determined in Deal............... 903
3. Columbus and Dayton II Have Not Significantly Changed the Law Applicable to the Issues Actually Litigated and Determined in Deal........................ 904
4. Columbus and Dayton II Present No Reason, Not Discernible in 1975, to Justify an Exception to Collateral Estoppel With Respect to Issues Actually Litigated and Determined in Deal............ 906
IV. Conclusions ......................... 907
A. Issues Not Actually Litigated and Determined in Deal............... 907
B. Issues Actually Litigated and Determined in Deal.................... 908
C. Practical Effect on Conclusions on Admissibility and Consideration of PreJuly 26, 1965 Evidence............. 908
Tentative Agenda For Meeting Between Court and Counsel on Friday, February 26,1982 ...... 909
Appendix................................ 910
DECISION AND ENTRY CONCERNING APPLICABILITY OF COLLATERAL ESTOPPEL; CONFERENCE SET
RICE, District Judge.
INTRODUCTION
On October 17, 1980, the Court met with counsel for all parties in this school desegregation case for the primary purpose of discussing the Court’s Entry of October 16, 1980, 1 “Setting Forth This Court’s Interpre *850 tation of Sixth Circuit Opinion in Bronson v. Board of Education, 525 F.2d 344 (6th Cir. 1975).” (doc. # 476) In the Entry, the Court stated its opinion that the Sixth Circuit’s decision, if applicable in this case, foreclosed the Bronson plaintiffs from relitigating the issues raised and resolved in the first Cincinnati school desegregation litigation. Deal v. Cincinnati Board of Education, 244 F.Supp. 572 (S.D.Ohio 1965) (Deal I), aff’d, 369 F.2d 55 (6th Cir. 1966), cert. denied, 389 U.S. 847 , 88 S.Ct. 39 , 19 L.Ed.2d 114 (1967); Deal v. Cincinnati Board of Education, 419 F.2d 1387 (6th Cir.. 1969) (Deal II), cert. denied, 402 U.S. 962 , 91 S.Ct. 1630 , 29 L.Ed.2d 128 (1971). Therein, Judge Peck had found that the Cincinnati Board of Education was not liable or legally responsible for the racial composition of the Cincinnati school system in 1965, because the racial imbalance existing in the system at that time had not been intentionally caused by the practices and policies of the board. In short, the Court found no intent to discriminate or segregate on the part of the school board, and thus, no violation of plaintiffs’ fourteenth amendment rights. This Court concluded that the Sixth Circuit had determined that Deal I and II were still good law in 1975, and that the Bronson plaintiffs were collaterally estopped from attacking Judge Peck’s findings of fact and conclusions of law. In reaching that conclusion, this Court necessarily adopted the position taken by the Sixth Circuit that, between July 26, 1965 (the date of the District Court’s decision in Deal I) and September 24, 1975 (the date of the Sixth Circuit’s Bronson decision), there had been no significant changes in the law applicable to this case that would render the application of collateral estoppel inappropriate.
A secondary purpose of the October 17 meeting was to discuss briefly the question currently before the Court, namely, whether the Sixth Circuit’s 1975 Bronson opinion is now obsolete in light of the Supreme Court decisions rendered subsequent to its filing, thereby making the application of collateral estoppel inappropriate at this juncture. This question was raised by plaintiffs a few days prior to the meeting. See, Plaintiffs’ Memorandum in Support of the Admissibility of Pre-1965 Evidence Against the State and Cincinnati Defendants, October 14, 1980. (doc. # 475). The Court’s October 16, 1980, Entry was explicitly limited to an interpretation of the Sixth Circuit’s 1975 Bronson opinion, and did not address what, if any, impact the intervening Supreme Court decisions might have on that opinion. 2 Thus, at the October 17 meeting, the Court requested that the defendants submit memoranda in response to plaintiffs’ position, and afforded plaintiffs an opportunity to reply thereto. On November 24, 1980, the matter came on for an oral hearing.
I. Positions of the Parties
The parties have skillfully and exhaustively advocated their positions on the issue, both in writing, see, doc. # 475, 481, 483, 485, 488, and at the oral hearing. A detailed reiteration of the written memoranda would be redundant and would serve no useful purpose. Therefore, the Court will pause only briefly to highlight the positions which have been presented.
A. Plaintiffs
Plaintiffs contend that the Supreme Court’s decisions in Columbus Board of Education v. Penick, 443 U.S. 449 , 99 S.Ct. 2941 , 61 L.Ed.2d 666 (1979) (Columbus), and Dayton Board of Education v. Brinkman, 443 U.S. 526 , 99 S.Ct. 2971 , 61 L.Ed.2d 720 *851 (1979) (Dayton II), “mark a significant development in the constitutional law of school desegregation.” (doc. # 475, at 4). Plaintiffs assert that, in these two cases, the Supreme Court approved a new theory of liability in school desegregation cases, referred to by them as the “pre-Brown” theory, and that this theory had not been developed, articulated or suggested in 1965, and “was not apparent at the time of the Sixth Circuit’s 1975 Bronson decision.” Id. at 13. According to plaintiffs, under this theory, a trial court’s initial inquiry focuses on whether a school board had, by remote intentionally segregative actions, created and maintained a racially dual school system when the Supreme Court rendered its landmark decision in Brown v. Board of Education, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954) (Brown I). If this threshold question is answered affirmatively, that is, if the court finds that the school system was a racially dual one as of 1954, the court then focuses on the boards’ actions, inactions and policies in the period subsequent to 1954, to determine whether the board had effectively met its affirmative duty to dismantle the duality extant in 1954.
Plaintiffs maintain that this “pre-Brown” theory was neither presented nor litigated in Deal, wherein the courts and the plaintiffs treated the pr e-Brown historical facts regarding the Cincinnati school system as largely irrelevant to the question whether the board had intentionally caused the racial imbalance that existed when Deal was filed. They further contend that if the “pre-Brown” theory were applied to the unchanging historical facts, it would now be abundantly clear that, as of 1954, the Cincinnati Board of Education operated a “classic state-imposed dual school system,” doc. # 475 at 7, and that this dual system remained unliquidated in 1965. Since the Deal courts only considered the board’s policies and practices still in existence when the suit was commenced in reaching the conclusion that the school board was not liable or legally responsible for the racial composition of the Cincinnati school system in 1965, and did not consider whether the board had created and maintained a dual system as of 1954, which remained unliquidated in 1965, plaintiffs contend that Deal would be decided differently under Columbus and Dayton II, and that the Deal judgment is, therefore, manifestly wrong in light of the intervening decisions. For these reasons, plaintiffs contend that the Sixth Circuit’s 1975 Bronson opinion is now obsolete in light of the intervening changes in the law, and that the doctrine of collateral estoppel is, therefore, inapplicable in the present case.
Alternatively, plaintiffs argue that even if collateral estoppel is not altogether inapplicable, they are nonetheless entitled to proceed with their proof under the “pre Brown” theory, as a new charge or issue, which was not litigated in Deal, because the Deal courts treated pr e-Brown historical facts as irrelevant to the extent that they considered them at all. Plaintiffs further assert that the state defendants are not entitled to assert collateral estoppel based on Deal to preclude plaintiffs from attempting to prove primary state liability, even prior to 1965, because this issue was never litigated in Deal. Finally, plaintiffs urge the Court to conduct a trial on the pre-1965 facts, unrestrained by any preclusive restrictions, in order that those facts can be assessed in light of current legal principles.
B. Defendants
The defendants in their memoranda and during oral argument did not necessarily stress the same points in opposition to the plaintiffs’ contentions. However, they are unanimous in their contention that neither Columbus nor Dayton II significantly changed the law of school desegregation subsequent to the Sixth Circuit’s Bronson opinion in 1975. They assert that the decisions in Columbus and Dayton II are fully grounded in the Supreme Court’s pre-1975 decisions, and merely reflect an application of the earlier authorities to different fact situations. Because the Sixth Circuit rejected the claims of both the Deal and Bronson plaintiffs that any pre-1975 decisions had so changed the law of school desegregation as to warrant a departure *852 from the application of collateral estoppel, the defendants urge that it would be inappropriate for this Court to depart from that stance on the basis of more recent decisions that simply follow and apply the pre-1975 precedent.
The Cincinnati and Suburban defendants also briefly respond to plaintiffs’ alternative contention that they (the plaintiffs) are not collaterally estopped from presenting pre-1965 evidence in an attempt to prove pre-1965 liability under the “pre-Brown ” theory, because this matter was not litigated in Deal. The Cincinnati defendants flatly disagree that the matter was not litigated in the prior suit. They state that “[i]n Deal, this Court found as a matter of fact that at the time of the Brown decision the Cincinnati School System was not a racially dual one but, to the contrary, that it was a unitary, non-segregated school system,” doc. # 481, at 13, and assert that this finding was central to the Sixth Circuit’s ruling that plaintiffs are collaterally estopped from retrying Deal. Id. The Suburban defendants are of a similar opinion. They contend that plaintiffs’ new, “pre-Brown” theory does not represent a new charge or issue that was not litigated in Deal. It is their position that, because this theory is related to the subject matter and is relevant to the issues adjudged in Deal, “Deal is conclusive on the new theory of plaintiffs.” (doc. # 485, at 17). These defendants suggest that the doctrine of collateral estoppel would be rendered meaningless if a party were permitted to raise, in a second action, new or different legal theories which could have been, but were not raised in the prior action. Id.
II. Summary of Discussion
In the discussion section, the Court sets forth in minute detail its reasons for concluding that the Sixth Circuit’s 1975 Bronson opinion has been rendered obsolete to the extent that it forecloses any and all inquiries prior to July 26, 1965, on the ground that Columbus and Dayton II, by supplementing the body of school desegregation law existing in 1975, have established the propriety and necessity of considering certain issues that were not addressed in Deal. The Court also sets forth its reasons for concluding that Columbus and Dayton II provide no basis for departing from the Sixth Circuit’s 1975 Bronson opinion to the extent that it forecloses the relitigation of the issues that were actually litigated and determined in Deal, should these issues become relevant in the case at bar. The following summary is not intended as a substitute for the discussion itself; rather, it is merely intended to apprise the parties of the Court’s approach in determining the appropriate application of collateral estoppel under the now-prevailing Supreme Court authority, and to state, in general terms, the underpinnings of the Court’s conclusions.
In order to explain fully this Court’s reasons for concluding that the Sixth Circuit’s 1975 Bronson opinion has, in part, become obsolete in light of Columbus and Dayton II, it is necessary to explore and identify the factors which distinguish these cases from their pre-1975 predecessors. The reasons for so doing should be fairly obvious. In Deal II, the plaintiffs contended that three intervening Supreme Court decisions had changed the law since the judgment in Deal I. The District Court and the Sixth Circuit considered these eases, but concluded that they had not changed any aspect of the law applicable to Deal. In Bronson , as argued before the Sixth Circuit in 1975, plaintiffs contended that certain aspects of Deal had been “overtaken” by Supreme Court cases decided after Deal, thereby rendering the application of collateral estoppel inappropriate. The plaintiffs also argued that the public policy considerations in this school desegregation case warranted an exception to the application of collateral estoppel. On the basis of the authority cited, the Sixth Circuit found that the law of school desegregation had been refined and clarified since Deal II, but rejected plaintiffs’ claim that the intervening Supreme Court cases had “overtaken” or significantly changed any aspect of the law applied in Deal. The court also rejected plaintiffs’ public policy arguments. Having thus con *853 sidered the circumstances of the case, as they then appeared, together with the Supreme Court authority available at that time, the Sixth Circuit concluded that the doctrine of collateral estoppel was applicable, and that there was no compelling reason to except plaintiffs from its application.
This Court is bound by the Sixth Circuit’s determinations in both Deal II and the 1975 Bronson opinion, insofar as they are grounded upon pre-1975 Supreme Court precedent. The Court has no authority to question or depart from these determinations. Therefore, before it can declare itself released, in any way, from the Sixth Circuit’s 1975 Bronson opinion, the Court must demonstrate that Columbus and Dayton II have affected or contributed to the law of school desegregation, in a way that the earlier decisions did not.
To this end, Part I of the Discussion is devoted to an examination of the pre-1975 Supreme Court decisions that were considered by the Sixth Circuit in Deal II and Bronson , and were held to have changed no law applicable to Deal. The Court begins with the Supreme Court cases presented to the Sixth Circuit in Deal II. After a brief discussion of the cases, themselves, the Court summarizes the reasons given by the District Court and Sixth Circuit for rejecting the Deal plaintiffs’ contentions that these decisions were applicable to Deal or changed any law applicable thereto. This Court then adds some additional comments to highlight why these cases, all dealing with issues concerning remedies to achieve desegregation in systems which had been segregated under state law in 1954, were distinguishable from, and, therefore, inapplicable to Deal, which involved the threshold issue of liability in a school system that had not been racially dual pursuant to state law at the time of Brown I, or for almost seventy years before that landmark decision.
Thereafter, the Court turns to the two Supreme Court cases relied upon by the Bronson plaintiffs in 1975, in support of their contention that certain aspects of Deal had been overtaken, thereby rendering the application of collateral estoppel inappropriate. The discussion of Swann, the first of the two cases, is relatively brief. This Court notes that the Sixth Circuit, itself, did not discuss Swann in detail, but simply reiterated that remedy cases, which addressed matters arising only after a school system has been adjudged constitutionally deficient, were distinguishable from a case like Deal, which involved the threshold question of liability. This Court identifies the similarities between Swann, and the three remedy cases considered by the Sixth Circuit in Deal II. It also illustrates why none of the developments emerging from Swann were applicable to Deal, and would only have been applicable if a constitutional violation had been established in Deal.
The Court’s discussion of Keyes, the second of the two cases considered in Bronson , is much more detailed. As the first school desegregation case in which the Supreme Court addressed the requisite elements for a finding of current, systemwide de jure segregation in a school system which had never been racially segregated under state law, Keyes, unlike the remedies cases, presented a situation much closer to Deal, where there had been no state-imposed segregation since 1887. This Court, therefore, considered it imperative to look closely at Keyes, and at the Sixth Circuit’s reasons for concluding that the case, despite its general similarity to Deal, and despite its contributions to the law of school desegregation, presented no reason for permitting plaintiffs to present any evidence for the purpose of attempting to establish a constitutional violation prior to July 26, 1965.
Initially, the Court sets forth the general characteristics of Keyes which, similar to Deal, distinguished it from the previously considered remedies cases. Then, as a predicate for further discussion, the Court takes a closer look at Keyes, tracing its progression from the trial level to the Supreme Court, to highlight certain nuances that are not discernible when the case is described only in general terms. In particular, the Court focuses on the precise question decid *854 ed by the Supreme Court, from which most of the innovative principles emerged.
Upon completion of this close examination of Keyes, the Court turns to the Sixth Circuit’s discussion of Keyes in the Bronson decision. The Court specifically notes that in Bronson , the Sixth Circuit considered Keyes to determine whether the standard to which the Deal plaintiffs were held, i.e., to prove that the board had implemented policies and practices with the purpose to segregate, had been eliminated in favor of a test that looked only to the effects of, rather than the motivation behind, the board’s actions. Thereafter, this Court examines Keyes, in greater detail than was necessary to resolve the narrow question presented in Bronson , to consider why most of the principles developed therein were not directly applicable to Deal. This inquiry reveals that Keyes gave no indication that the Deal courts’ assessment of plaintiffs’ evidence was unduly restrictive or that plaintiffs’ evidence on the board’s discontinued programs and practices raised any issues relevant to the question whether the school board was liable or legally responsible for the racial imbalance existing in the system, as of July 26, 1965. It also provides underlying support for this Court’s conclusion that there are certain relevant or potentially relevant pre-July 26, 1965 issues in this case, as they now appear in light of the supplementary developments in the law of school desegregation emerging from Columbus and Dayton II, that were not addressed in Deal, to which collateral estoppel is inapplicable.
By attempting to apply the methodology developed by the Supreme Court in Keyes to Deal, the Court demonstrates that Deal is not susceptible to a strict Keyes -type analysis. Although the two cases shared certain general similarities, Keyes ceased to be directly analogous or applicable to Deal at the point where the lower Keyes courts and the Deal courts, applying virtually the same standard in their initial inquiries into plaintiffs’ claims of intentional segregation by the school authorities, reached contrary conclusions on the basis of evidence spanning an almost identical period of time pri- or to the commencement of each litigation. Whereas the lower Keyes courts found that the Denver school authorities had used numerous intentionally or purposefully segregative devices in Park Hill between 1960 and 1969, which supported a finding of contemporary de jure segregation therein, the Deal courts, considering evidence between approximately 1956 and 1965, found that the board had not only not employed any comparable devices, but had actually attempted to improve the racial balance in some schools.
By comparing the factual findings made by Judge Peck in Deal II with those made by the District Court in Keyes, the Court illustrates the significant differences between what was occurring in a substantial portion of the Denver school district, and what was apparently not occurring in any portion of the Cincinnati school system, in the decade preceding each litigation. Because the evidence considered by the Deal courts failed to support a finding of contemporary intentional or de jure segregation in any portion of the system, the Deal courts were not confronted with the question actually considered and decided by the Supreme Court in Keyes, namely, whether, and to what extent, a finding of contemporary de jure segregation in a substantial portion of the system is relevant in assessing plaintiffs’ claim of current de jure segregation in the remainder of the system.
Moreover, because the Keyes petitioners were held to have met their initial burden of proof on the basis of their evidence of intentional segregation in the Park Hill schools during the decade prior to 1969, the Supreme Court had no occasion to establish any guidelines or methodology for assessing evidence of a school board’s remote programs or practices in the context of plaintiffs’ initial burden of proof. By declining to review the lower courts’ finding in Park Hill, the Supreme Court simply had no opportunity to consider what, if any, legal significance should be accorded to the type of evidence to which the Deal courts accorded little or no import, and about which the Sixth Circuit made no ruling, i.e., the *855 schools, programs and practices discontinued before the lawsuit was filed.
Since almost all of the principles developed by the Supreme Court in Keyes were grounded in the finding of contemporary de jure segregation in Park Hill, they had no direct application to Deal where, after conducting similar inquiries, addressing similar issues and applying a similar standard, the Deal courts reached a contrary conclusion on the threshold question of liability. Thus, under the circumstances, as they then appeared, Keyes provided no support for permitting the Bronson plaintiffs to present any evidence for the purpose of attempting to establish a constitutional violation prior to July 26, 1965.
After completing a review of the Supreme Court authorities considered by the Sixth Circuit as of 1975, and elaborating on the reasons why almost none of the principles developed therein could be said to have been directly applicable to Deal, this Court moves to Part II of the Discussion, which considers Columbus and Dayton II. Initially, the Court sets forth what it perceives to be the evolutionary, as opposed to revolutionary, developments in the law of school desegregation signaled by these cases. Specifically, the Court discusses the Supreme Court’s extension of Keyes’ principles to these cases, which involved school systems that had been officially dual at the time of Brown I, but which were not so segregated at that time under any state authorization or permission. The Court also stresses that, in these two cases, the Supreme Court unequivocally established that where plaintiffs’ evidence demonstrates the existence of an official, dual school system at the time of Brown I, created or maintained by remote acts of the local school authorities, the fact that the duality was not sanctioned by state law is irrelevant.
At this point, the Court steps back to re-examine Deal II, wherein the Sixth Circuit’s inquiry into the causes of the segregated condition of the system, as of July 26, 1965, was limited to issues raised with respect to specific schools, programs and practices that were still in existence when the lawsuit was filed. The Court focuses on the position adopted by the Sixth Circuit in Deal II, which accorded paramount importance to the fact that segregation had been outlawed in Ohio in the late nineteenth century, and which accorded a lack of import to any of the board’s programs and practices discontinued before the suit was commenced. Of particular interest is the Sixth Circuit’s explicit statement that it need not make any ruling with respect to any schools, programs or practices discontinued before the suit was filed.
Having set forth and discussed the Sixth Circuit’s position on the legal import of historical facts in Deal, the Court then briefly sets forth its reasons for concluding that the soundness of this position had not been questioned, or, in any way, impugned by Supreme Court authority existing when the Sixth Circuit rendered its 1975 Bronson opinion. The remedy cases had involved statutorily-mandated dualities, and, therefore, raised no questions regarding a school board’s remote acts in a system where statutory segregation had been abolished decades before Brown I. Keyes did not address the potential legal significance of a school board’s remote acts in the context of petitioners’ initial burden of proof. In Keyes, the prima facie case of current, systemwide de jure segregation was predicated on the finding of contemporary de jure segregation in Park Hill, that is, on the basis of the evidence of the board’s actions during the decade prior to commencement of the litigation. Whether or not such a showing could be predicated on a board’s remote acts was not a question presented or considered in Keyes. Thus, as of 1975, the Sixth Circuit’s position in Deal II was consistent, or could be reconciled with all available Supreme Court authority.
This compatibility is effectively eliminated by the Supreme Court’s opinions in Columbus and Dayton II. In those cases, the Court supplemented or added to the pre-existing body of school desegregation law by settling certain matters which had not been raised or considered in any of the pre-1975 cases. More specifically, Columbus and *856 Dayton II are the first two cases in which plaintiffs were held to have met their initial burden of proof, at least in part, on the basis of evidence of the board’s remote intentionally segregative practices and which, therefore, established the necessity of conducting an initial inquiry into such practices.
Unlike the Sixth Circuit in Deal II, the Supreme Court in Columbus and Dayton II, attributed virtually no legal significance or relevance to the fact that the State of Ohio had abolished segregated schooling in 1887-1888. Instead, the Supreme Court looked to, and drew its legal conclusions from the plaintiffs’ evidence regarding the board’s remote acts. Based on that evidence, the Court found that, prior to 1954, the school authorities had acted in contravention of state law by implementing various intentionally segregative devices, which either created or maintained segregated schooling. Relying on this evidence, the Court concluded that the racial segregation existing in the systems at the time of Brown I was not merely a fortuitous happenstance. Rather, it found in both cases that the evidence supported a finding that the school authorities were officially operating racially dual school systems in 1954. Once this finding was made, the burden shifted to the school board to show that it had taken effective action to dismantle the pre-Brown duality.
The Supreme Court rejected the opportunity to impose a lesser constitutional duty to desegregate in this situation than it had where the dual system had been sanctioned by law, or had been created by a school board’s contemporary, as opposed to remote, intentionally segregative acts. Because the Supreme Court’s position, as developed in Columbus and Dayton II, is almost diametrically opposed to the one taken by the Sixth Circuit in Deal II (i.e., that segregative activities which had been discontinued prior to suit were of no relevance), this Court concludes that the Sixth Circuit’s position, although legally sound when adopted, and while retaining all semblance of vitality as of 1975, has now ceased to be legally viable in cases similar to Deal.
The preceding conclusion leads the Court to Part III of the Discussion, which reconsiders the Sixth Circuit’s 1975 Bronson opinion, and the appropriate application of collateral estoppel in light of Columbus and Dayton II. As a starting place, the Court sets forth the governing principles of the doctrine and the necessary inquiries thereunder. After a threshold determination is made that res judicata is inapplicable, the three potentially relevant collateral estoppel inquiries are: (1) whether there is an identity between the issues in the second action and those actually litigated and determined in the prior action; if so, (2) whether there have been any changes in the controlling facts or law sufficient to render the application of collateral estoppel inappropriate; and, if the issues are determined to be substantially the same, and there have been no significant changes in the controlling facts or law, (3) whether there is any other special reason presented in the second action that would justify an exception from the general operation of the doctrine. The first of the above inquiries, regarding the identity of issues, is a threshold question to determine the extent to which collateral estoppel is technically applicable. Where the threshold inquiry discloses an identity between the issues in the second action and those actually litigated and determined in the prior action, the second and third inquiries are conducted to determine the appropriate application of collateral estoppel.
This Court then returns to the 1975 Bronson opinion to determine how the Sixth Circuit answered each of these questions. After determining that res judicata did not apply, that Court, at least implicitly, determined that the issues in this case, as they then appeared, were substantially the same as those decided in Deal. With respect to the second inquiry, the Sixth Circuit explicitly rejected the plaintiffs’ contention that there had been any significant changes in the controlling law. The Sixth Circuit also conducted the third and final inquiry. Although cognizant of, and sensitive to the public policy against the continuation of racial segregation in public schools, the Court determined that the proper balance *857 between this and the competing public policy in favor of finality of judgments would be achieved by applying “issue preclusion,” i.e., collateral estoppel. Having found an identity of issues but no significant changes in the law and no other sufficiently compelling reason to justify an exception, the Court concluded that collateral estoppel should be applied to bar the relitigation of the issues decided in Deal. The Court, therefore, prohibited all inquiries into the board’s segregative intent and its actions, inactions and policies prior to July 26, 1965, for the purpose of establishing a constitutional violation. 3
When this Court reconsiders the same questions in light of the supplementation to the law of school desegregation brought about in Columbus and Dayton II, it concludes that the absolute ban against any and all inquiries prior to July 26, 1965, as set forth in the Sixth Circuit’s 1975 Bronson opinion, has become obsolete, but that its mandate foreclosing the relitigation of the issues that were actually litigated and determined in Deal retains vitality. Preliminarily, the Court notes that it has become aware of no reason for departing from the Sixth Circuit’s determination that the more strict rules of res judicata are inapplicable to this case. Thereafter, the Court reconsiders the threshold collateral estoppel question, regarding identity of issues, in light of Columbus and Dayton II, where the Supreme Court supplemented, rather than overruled or radically departed from its pre-1975 authority, by combining and extending the application of certain pre-1975 legal principles to matters it had not previously considered. Under this inquiry, the Court concludes that there are several relevant or potentially relevant pre-July 26, 1965 issues in this case, as they now appear in light of the evolutionary, as opposed to revolutionary, developments emerging from Columbus and Dayton II, that are not substantially the same as, or identical to those actually litigated and determined in Deal. More specifically, the Court concludes that there is a category of threshold issues directly relating to the board’s remote acts, (i.e., as of 1954 or before), and a second category of issues relating to the board’s post-Brown actions, inactions or policies, which may arise from the findings on the threshold issues, that were neither contemplated nor considered in Deal.
First, because the Sixth Circuit, in Deal II, accorded paramount legal import to the fact that the State had outlawed segregated schooling in 1887, and concluded from this fact that the Cincinnati school system had been desegregated for some 70 years before Brown I, it made no ruling on any school, program or practice discontinued before the lawsuit was filed and made no inquiry into the board’s remote or preBrown acts. Instead, it limited the scope of its inquiry into the causes of the racial imbalance existing as of July 26, 1965, to the board’s policies and practices between roughly 1956 and 1965. The Sixth Circuit did not, therefore, address the threshold issues which, under Columbus and Dayton II, must now be considered in cases where plaintiffs present evidence of the board’s remote acts as part of their initial burden of proof. Generally stated, these broad threshold issues, upon which plaintiffs have the burden of proof are: (1) whether the board was officially operating a dual system at the time of Brown I, created and/or maintained in contravention of state law by the board’s remote, intentionally segregative acts; or (2) whether, as a result of the board’s remote, intentionally segregative acts, a substantial portion of the school system was segregated by race in 1954 which, when coupled with proof that the system is currently highly segregated by race, will establish a prima facie case of current, systemwide de jure segregation.
Second, because the Sixth Circuit considered the board’s remote or discontinued programs and practices to be irrelevant, to *858 the extent that it considered them at all, and did not address the threshold issues identified above, it could not and did not consider the issues which are raised and need only be considered if plaintiffs prevail on the threshold issues, as they did in Columbus and Dayton II. Stated generally, and corresponding to the threshold issues from which they arise, the issues relating to the board’s post-Brown actions, inactions and policies, upon which the board, rather than plaintiffs, have the burden of proof are: (1) if plaintiffs’ proof supports a finding that the board was officially operating a dual school system at the time of Brown I, whether the board effectively dismantled same in the subsequent years, or whether its actions, inactions and policies in the ensuing years perpetuated and/or exacerbated the condition extant in 1954; or (2) if plaintiffs make a prima facie showing of current, systemwide de jure segregation, predicated on a finding that a substantial portion of the system was segregated in 1954, whether the board’s remote, intentionally segregative acts, in any way, caused or contributed to the current condition of segregation. The board’s failure to carry its burden on these issues would require judgment for plaintiffs and warrant a system-wide desegregation order.
The Court recognizes that the resolution of this second category of issues, which may arise from the threshold inquiries, would undoubtedly turn, at least in part, on the evidence previously considered in Deal. However, the Court explains that the potential sameness of evidence should not be confused or equated with a sameness or identity of issues, In Deal, the burden of proof, at all times, remained upon plaintiffs and the inquiry therein was limited to determining whether, in the absence of a duty to desegregate arising from an established constitutional deficiency existing at the time of Brown I, the board had acted with segregative intent between approximately 1956 and 1965. In contrast, if the Bronson plaintiffs prevail on the threshold issues, they will have established that the system was unconstitutionally constituted in 1954 and the continuing, affirmative duty to correct that deficiency would attach to the board. Thereafter, the school board would have the burden of proof, and the evidence previously considered in Deal would be considered herein on the issue whether the board had remedied the effects of its remote, intentionally segregative acts, or whether, on the contrary, the current condition of segregation can be traced to those remote acts.
Having accorded virtually no legal import to the board’s discontinued programs and practices in Deal II, the Sixth Circuit did not conduct the now mandatory threshold inquiries, nor did it address the issues that only arise as a result of those inquiries. Under the well-settled principles of collateral estoppel, the doctrine is only applicable to preclude the relitigation of issues that were actually litigated and determined in a prior action; it does not operate to preclude the litigation of issues that might have been raised and determined, but were not. Therefore, the Court concludes that collateral estoppel is wholly inapplicable to those two categories of issues which, under Columbus and Dayton II, are or may become relevant in this case and which either directly relate to, or potentially arise from plaintiffs’ evidence regarding the schools, programs and practices discontinued by the board before commencement of the Deal litigation.
Although the Court acknowledges the possibility that this case could be resolved without any overlapping with the pre-July 26, 1965 issues actually litigated and determined in Deal, as distinguished from an overlapping or similarity of evidence, the Court recognizes that this is not an inevitable result. On the contrary, if plaintiffs do not prevail on the threshold issues relating to the board’s remote acts, the second category of issues relating to the board’s post- Brown policies and practices, upon which the board would have the burden of proof, would not be before this Court, as they were in Columbus and Dayton II. Instead, and in contrast to the more recent Supreme Court cases, the burden of proof would remain upon plaintiffs and the relevant in *859 quiry with respect to the board’s post-Brown programs and practices would focus on whether, absent a duty to improve the racial balance arising from an established constitutional deficiency in the system at the time of Brown I, the board had acted with segregative intent in the subsequent years, thereby causing the former unitary system to become de jure segregated. At least with respect to the actions, inactions and policies of the board between approximately 1956 and July 26, 1965, the issues that would become relevant herein are substantially the same, if not identical to those actually litigated and determined adversely to the Deal plaintiffs. With respect to these issues, which meet the threshold- identity requirement, the Court concludes that the doctrine of collateral estoppel remains technically applicable.
The conclusion that there may remain relevant issues in this case which are substantially the same as those decided in Deal, if plaintiffs do not prevail on the threshold issues, to which collateral estoppel is technically applicable, requires the Court to consider whether it remains appropriate to invoke the doctrine with respect to these issues. The Court, therefore, proceeds to the second collateral estoppel inquiry to determine whether Columbus and Dayton II have so changed the law of school desegregation since 1975 as to render the Sixth Circuit’s 1975 Bronson opinion obsolete to the extent that it forecloses the relitigation of the pre-July 26, 1965 issues that were actually litigated and determined in Deal.
In responding to this question, the Court reiterates that Columbus and Dayton II did not overrule any pre-1975 Supreme Court precedent nor did they radically depart therefrom. Rather, in these cases, the Supreme Court supplemented or added to the body of school desegregation law which has been steadily evolving since Brown I, by combining and extending the application of certain pre-1975 legal principles to matters which it had not previously had an occasion or opportunity to consider. This supplementation, which is evolutionary, as opposed to revolutionary, in nature established the propriety and necessity of considering the threshold issues that were not addressed in Deal, regarding the board’s remote acts, and the issues that may arise as a result of the threshold inquiries which were, likewise, not addressed in Deal.
However, Columbus and Dayton II have not significantly changed or altered any of the legal principles applicable in a case where the school system involved is found to have been unitary, in a constitutional sense, at the time of Brown I. Thus, if the evidence adduced at trial supports a finding that the Cincinnati school system was truly a unitary one as of 1954, that is, if plaintiffs do not prevail on the threshold issues directly relating to the board’s remote acts, the posture of this case will be virtually the same as it was in Deal II, where the inquiry focused on whether, in the absence of a pre-existing duty, the board had acted with segregative intent in the years after Brown I, thereby causing or contributing to the racial imbalance existing, as of July 26, 1965. The resolution of the issues based solely on the board’s actions, inactions and policies after 1954, through July 26,1965, as well as those based on the board’s actions, inactions and policies after Deal, would be controlled, not by any new principles announced in Columbus and Dayton II, but rather, by principles of school desegregation law developed prior to 1975. Thus, although the supplementary developments emerging from Columbus and Dayton II have established the propriety and necessity of considering certain relevant and potentially relevant issues that were not addressed in Deal, the Court concludes that, with respect to the issues that were actually litigated and determined in Deal, Columbus and Dayton II have not significantly changed or altered any aspect of the applicable law since 1975. Therefore, under the second collateral estoppel inquiry, the Court concludes that' the Sixth Circuit’s 1975 Bronson opinion retains full vitality to the extent that it forecloses the relitigation of the pre-July 26,1965 issues decided in Deal.
The Court then conducts the third and final collateral estoppel inquiry and concludes that Columbus and Dayton II do not *860 present any other compelling reasons, not discernible in 1975, that would now justify excepting plaintiffs from the application of collateral estoppel with respect to the issues actually litigated and determined in Deal. The only differences between the circumstances of this case, as they now appear and those existing in 1975, all relate to the propriety and necessity of resolving issues to which collateral estoppel is inapplicable because they were not addressed in Deal. Once again, if plaintiffs do not satisfy their initial burden of proof on the threshold issues, regarding the board’s remote practices, the circumstances of this case will thereafter be essentially the same as they were when the Sixth Circuit considered the appropriate application of collateral estoppel in 1975. Given the Sixth Circuit’s specific consideration of the circumstances of this case, as they then appeared, and its rejection of plaintiffs’ claim that a departure from the general operation of the doctrine was warranted, the Court concludes that the Sixth Circuit’s 1975 Bronson opinion, foreclosing the relitigation of the preJuly 26, 1965 issues actually litigated and determined in Deal, remains binding.
III. Synopsis of Conclusions
Upon completion of the third collateral estoppel inquiry, the Court moves to Part IV of the Discussion, which capsulizes the Court’s conclusions based on all of the preceding discussion. The Court declares that the Sixth Circuit’s 1975 Bronson opinion has been rendered obsolete by Columbus and Dayton II to the extent that it forecloses any and all inquiries into the board’s segregative intent and constitutional violations prior to July 26, 1965. The Court stresses that it reaches this conclusion not because Columbus and Dayton II have significantly changed the law, in the sense of overruling or radically departing from any pre-1975 Supreme Court authority, but because the supplementary developments emerging from these cases have established the propriety and necessity of considering numerous relevant and potentially relevant preJuly 26,1965 issues that are not substantially the same as, or identical to those actually litigated and determined in Deal. In other words, although the major thrust of the parties’ arguments, both orally and in writing, dealt with the second collateral estoppel question, that is, whether Columbus and Dayton II have so changed the law since 1975 that it would no longer be appropriate to invoke collateral estoppel, this Court has reached its conclusion, that the Sixth Circuit’s 1975 Bronson opinion has, in part, become obsolete, under the threshold collateral estoppel inquiry regarding identity of issues. Plaintiffs raised this matter in their alternative contention that, even if collateral estoppel is not altogether inapplicable in this case, they should nonetheless be permitted to proceed under the pr e-Brown theory, as a charge or issue that was not litigated in Deal, and was not recognized under the pre-1975 Supreme Court authority. Insofar as the pr e-Brown theory refers to the two categories of issues that do not share the requisite identity with those decided in Deal, the Court agrees that plaintiffs are entitled to present their proof unrestrained by the July 26, 1965 cut-off date established in the Sixth Circuit’s 1975 Bronson opinion. However, the Court rejects plaintiffs’ primary contention that collateral estoppel is now altogether inapplicable because Columbus and Dayton II have significantly changed the law of school desegregation since 1975. The doctrine remains fully and appropriately applicable with respect to the issues that were actually litigated and determined in Deal.
Thus, under the threshold collateral estoppel inquiry, regarding identity of issues, the Court concludes that the doctrine of collateral estoppel is wholly inapplicable to the threshold issues directly relating to the board’s remote acts, and to the issues relating to the board’s post-Brown actions, inactions and policies, which will arise and become relevant herein only if plaintiffs prevail on the threshold issue. With respect to these issues, the Court specifically releases plaintiffs from the July 26, 1965 cut-off date established by the Sixth Circuit in its 1975 Bronson opinion. With respect to these issues, the Court also specifically re *861 leases plaintiffs from the restrictions set forth in its Entry of October 16, 1980, on the presentation and consideration of preJuly 26, 1965 evidence. The preclusion order imposed upon plaintiffs by Judge Porter on March 10, 1980, is not affected, and therefore, remains in full force and effect.
Notwithstanding the above, the Court further concludes that the vitality of the Sixth Circuit’s 1975 Bronson opinion has, in no way, been impaired or diminished by Columbus and Dayton II to the extent that it forecloses the relitigation of the pre-July 26, 1965 issues that were actually litigated and determined in Deal. Whether these issues will become relevant in this case depends upon the determinations made on the threshold issues that were not addressed in Deal, to which collateral estoppel does not apply. However, in the event that plaintiffs’ evidence regarding the board’s remote acts fails to support a finding that the board was officially operating a dual or substantially segregated system in contravention of state law at the time of Brown I, the burden of proof will remain upon plaintiffs, and the issues that would thereafter become relevant with respect to the board’s actions, inactions and policies after Brown I through July 26, 1965, are essentially the same as those settled by the Deal judgment. The Court, therefore, concludes that collateral estoppel is technically applicable to these issues. Moreover, because Columbus and Dayton II have not significantly changed any aspect of the law applicable to these issues, and because the more recent cases present no compelling reason, not discernible in 1975, that would now justify excepting plaintiffs from the general operation of the doctrine, the Court concludes that collateral estoppel is appropriately invoked to foreclose the relitigation of the issues decided in Deal.
The practical effect of the Court’s ruling is that all of the plaintiffs’ evidence, both pre- and post-July 26, 1965, will be admissible at trial, subject to the normal operation of the Federal Rules of Evidence. Initially, the Court will consider plaintiffs’ preBrown evidence for the purpose of resolving the threshold issues that were not addressed in Deal. These inquiries will determine what issues will become relevant in this case with respect to the board’s post-Brown actions, inactions and policies, both before and after July 26,1965, and will also determine the purposes for which the evidence regarding the board’s programs and practices after Brown through July 26,1965 will be considered. If plaintiffs prevail on the threshold issues, the burden of proof will shift to the board, the second category of issues not addressed in Deal will be raised, and the parties’ pre-July 26, 1965 evidence will be considered, together with the post-July 26,1965 evidence, for the purpose of determining whether the school board is liable or legally responsible for the current racial composition of the Cincinnati Public Schools. If, however, plaintiffs do not prevail on the threshold issues, the burden of proof will remain on plaintiffs and, although the issues that were actually litigated and determined in Deal would be relevant, collateral estoppel applies to foreclose the relitigation of same. Consequently, plaintiffs’ claim of current de jure segregation will, at that point, be assessed only on the basis of evidence regarding the board’s actions, inactions and policies after July 26, 1965. None of the pre-July 26, 1965 evidence previously admitted will be considered for any purpose other than those expressly approved by the Sixth Circuit in its 1975 Bronson opinion, as interpreted by this Court in its Entry of October 16, 1980.
DISCUSSION
I. Pre-1975 School Desegregation Cases Considered by Sixth Circuit: Held to Have Changed No Law Applicable to Deal
A. Green, Raney, and Monroe: Considered by District Court and Sixth Circuit in Deal II, 1968, 1969
1. Conclusion of District Court and Sixth Circuit: Inapplicability of Green, Raney, and Monroe to Deal
On remand to the trial court in Deal II, 419 F.2d 1387, 1395 (6th Cir. 1968), for further factual findings, the plaintiffs con *862 tended that the law had been substantially modified by three Supreme Court decisions rendered subsequent to the Sixth Circuit’s opinion in Deal I, 369 F.2d 55 (6th Cir. 1966). The three cases presented similar issues, were argued together, and were decided by the Supreme Court on the same day. Green v. County Board of New Kent County, 391 U.S. 430 , 88 S.Ct. 1689 , 20 L.Ed.2d 716 (1968) (Green); Raney v. Board of Education of the Gould School District, 391 U.S. 443 , 88 S.Ct. 1697 , 20 L.Ed.2d 727 (1968) (Raney); and Monroe v. Board of Commissioners of the City of Jackson, 391 U.S. 450 , 88 S.Ct. 1700 , 20 L.Ed.2d 733 (1968) (Monroe). Each case involved a school system which had been racially segregated under compulsion of state statute in 1954, when the Supreme Court declared de jure or statutorily-imposed segregation to be unconstitutional. Brown I, 347 U.S. 483, 487 , 74 S.Ct. 686, 688 , 98 L.Ed. 873 (1954). Each school system remained racially segregated a year later, when the Supreme Court commanded the abolition of dual school systems existing pursuant to state statute in 1954. Brown v. Board of Education, 349 U.S. 294, 300-301 , 75 S.Ct. 753, 756-57 , 99 L.Ed. 1083 (1955) (Brown II).
The petitioners in Green, Raney and Monroe sought injunctive relief against the respective school boards on the ground that each had continued to maintain a dual school system up to the filing of the lawsuits, despite the mandate to desegregate laid down in Brown II. Although, by the mid-1960’s, each school board had implemented a desegregation plan, the petitioners challenged the plans as falling short of bringing the systems into compliance with Brown II. In Green and Raney , the school boards had adopted “freedom of choice” plans, under which a pupil was allowed to select the school he would attend. Green, supra, 391 U.S. at 433-434, 88 S.Ct. at 1692 ; Raney, supra, 391 U.S. at 445, 88 S.Ct. at 1698 . In Monroe , the school board had adopted a slightly different plan, known as a “free transfer” plan, which enabled a student originally assigned to one school to transfer freely therefrom, provided that the receiving school had space to accommodate the student. 391 U.S. at 453-54, 88 S.Ct. at 1702.
The Supreme Court gave its most detailed analysis in Green , and the principles articulated therein were then applied in Raney and Monroe . The Court described the segregation existing in the New Kent County school system at the time of the litigation as “precisely the pattern of segregation to which Brown I and Brown II were addressed, and which Brown I declared unconstitutionally denied Negro school children equal protection of the laws.” 391 U.S. at 435, 88 S.Ct. at 1692. The Court stated:
It was such dual systems that 14 years ago Brown I held unconstitutional and a year later Brown II held must be abolished; school boards operating such school systems were required by Brown II “to effectuate a transition to a racially nondiscriminatory school system.” 349 U.S. at 301 , 75 S.Ct. at 757 .
391 U.S. at 435, 88 S.Ct. at 1692 (emphasis in the original).
In the face of a clearly established statutory duality in 1954, the Court viewed its task in Green as that of measuring “the effectiveness of respondent School Board’s ‘freedom-of-choice’ plan to achieve” the mandatory transition to a non-discriminatory, unitary system. Id. at 437 , 88 S.Ct. at 1693. The Court framed the issue as follows:
In light of the command of ... [Brown II], what is involved here is the question whether the Board has achieved the “racially nondiscriminatory school system” Brown II held must be effectuated in order to remedy the established unconstitutional deficiencies of its segregated system.
Id. (emphasis added).
The Court acknowledged that “Brown II was a call for the dismantling of well-entrenched dual systems tempered by an awareness that complex and multifaceted problems would arise which require time and flexibility for a successful resolution.” Id. However, the Court stressed:
*863 School boards such as the respondent then operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.
Id. at 437-38, 88 S.Ct. at 1693-94 (emphasis added) (citations omitted).
The Court remarked that the Board’s failure to initiate a desegregation plan until some 11 years after Brown I and 10 years after Brown II “could only have compounded the harm of such a system,” id. at 438, 88 S.Ct. at 1694, and then announced that “[s]uch delays are no longer tolerable . ... ” Id. The Court set forth the standard by which desegregation plans implemented by school boards which had formerly operated under statutorily-imposed segregation would, henceforth, be judged: “The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now.” Id. at 439, 88 S.Ct. at 1695 (emphasis in the original).
Assessing the New Kent County School Board plan against this standard, the Court concluded:
[T]he school system remains a dual system. Rather than further the dismantling of the dual system, the plan has operated simply to burden children and their parents with a responsibility which Brown II placed squarely on the School Board.
Id. at 441-42, 88 S.Ct. at 1696. The Court, therefore, ordered the board to formulate a new desegregation plan; one which included “steps which promise realistically to convert promptly to a system without a ‘white’ school and a ‘Negro’ school, but just schools.” Id. at 442, 88 S.Ct. at 1696. The Court reached similar conclusions about the desegregation plans that had been implemented in Raney and Monroe , and ordered that new plans be developed for each school system. See, 391 U.S. at 449, 88 S.Ct. at 1700; 391 U.S. at 459-60, 88 S.Ct. at 1704-05.
In Deal II, Judge Peck, sitting as District Judge by designation, see 419 F.2d at 1389 , considered the three cases but concluded that “none of [them] is applicable because each involved a review by the Supreme Court of desegregation plans in school districts that had formerly operated under de jure segregation.” Appendix: Memorandum and Subsidiary Findings of Fact, 419 F.2d 1395, 1396 (S.D.Ohio 1968). He noted that the plans adopted by the school boards “did not comply with the desegregation requirement of” Brown II. Id. Distinguishing the cases from the one before him, Judge Peck recalled Chief Judge Weick’s preliminary observation on appeal in Deal I:
“At the outset it should be pointed out that the State of Ohio abolished segregation in public schools on February 22, 1887, which was more than 67 years before the Supreme Court barred it on constitutional grounds in the momentous decision of Brown v. Board of Education, 347 U.S. 483 [ 74 S.Ct. 686 , 98 L.Ed. 873 ] . . . (1954).”
419 F.2d at 1396 , quoting, Deal I, 369 F.2d 55, 58 (6th Cir. 1966). Judge Peck then added this observation:
The record herein clearly supports our earlier determination that while segregation in the Cincinnati public educational system was practiced between 1849 and 1887, since that date Negroes have attended neighborhood schools on the same basis as white children living in the same locality.
419 F.2d at 1396 . He, therefore, concluded that “[t]he group of cases cited above [Green, Raney and Monroe ] dealt with situations in which the imbalance between white and Negro children was caused by an act of discrimination on the part of the school authorities, and accordingly present an entirely different situation than that here under consideration.” Id. at 1396-97.
The Deal plaintiffs disputed the District Court’s conclusions, but the Sixth Circuit agreed that these cases did not change any law applicable to Deal. The Court found appellants’ reliance on them to be misplaced:
*864 The gist of the holdings in these cases was that in desegregating a dual school system, a plan utilizing “freedom of choice” or a variant “free transfer” is not an end in itself and would be discarded where it did not bring about the desired result.
On the other hand, our case involves the operation of a long-established unitary non-racial school system — just schools where Negro as well as white children may attend in the district of their residence. There is not an iota of evidence in this record where any of the plaintiffs or any of the class which they represent, was denied admission to a school in the district of his residence.
419 F.2d 1387, 1390 (emphasis in the original).
2. As remedy cases, Green, Raney, and Monroe were inapplicable to Deal
This Court is bound by the Sixth Circuit’s conclusion that Green, Raney and Monroe did not change or modify any law applicable to Deal. Moreover, given the factual differences, and the disparity between the issues presented and resolved therein and the issue presented in Deal, this Court wholly agrees with the Sixth Circuit’s conclusion.
Liability arising from intentionally caused segregation was a foregone conclusion in Green and its companion cases. Statutorily-imposed school segregation had been struck down as a matter of constitutional law in Brown I . Because the school systems involved in the 1968 trilogy had operated under a state segregation statute at the time of Brown I , each school board had, since Brown II, been under an affirmative duty to convert its school system into a non-segregated, unitary system. The Supreme Court’s inquiry and discussion in these cases centered on issues which arose only after de jure segregation or intent to discriminate had been established. The developments in the law of school desegregation articulated in these decisions concerned the adequacy of school authorities’ efforts, in the years after 1955, “to remedy the established unconstitutional deficiencies of [their] segregated system[s].” Green, supra, 391 U.S. at 437, 88 S.Ct. at 1693 (emphasis added). Testing the adequacy of the remedial measures selected by the boards, the Court found that each board had taken actions after Brown II, which tended to perpetuate the segregation formerly imposed by statute. The Court also found that the boards had omitted or failed to implement plans that would realistically work to achieve desegregation. Consequently, the Court concluded that the respondent school boards had failed to meet their duty to remedy the deficiencies existing in their school systems in 1954.
In Deal, however, the courts were presented with the very issue that was settled in Green, Raney and Monroe . Before the principles developed in these later cases, regarding the adequacy of remedial measures, could properly be considered in Deal, it was necessary to determine, as a threshold matter, whether the school board was liable for the existing racial imbalance. Since the imbalance could not be traced to a segregation statute, as was the situation in the 1968 Supreme Court cases, the Deal courts considered whether the racial imbalance had been caused by the Cincinnati school authorities through some other intentionally segregative means. Green, Raney, and Monroe provided little, if any, guidance for resolving this question.
When the Sixth Circuit remanded Deal for more comprehensive factual findings, it identified the issue as “whether the racial imbalance was intentionally caused by gerrymandering or by other alleged discriminatory practices on- the part of the Board.” Deal I, 369 F.2d 55, 64 . Having no basis for treating any of the board’s omissions to act as giving rise to liability, in the absence of an established duty to desegregate, and having been affirmed by the Sixth Circuit on his previous conclusion that desegregation had occurred in Cincinnati upon repeal of Ohio’s segregation statute in 1887, Judge Peck limited the scope of his inquiry on remand to evidence of contemporary school board programs and practices. As the Subsidiary Findings of Fact indicate, during the years which he considered relevant to *865 the inquiry, Judge Peck “found and determined that neither gerrymandering nor any other alleged practice on the part of the Board brought about such racial imbalance as existed . ... ” 419 F.2d at 1398 . After a review of those findings, the Sixth Circuit affirmed, and agreed with Judge Peck that there was no reason to rule on practices and policies which had been discontinued prior to the filing of the lawsuit. Id. at 1395 . Relying on evidence for the period between approximately 1956-1965, the Deal courts concluded that the school board was not liable or legally responsible for the racial composition of the Cincinnati school system, as of July 26, 1965.
Absent the existence of a state segregation statute in 1954, which would have settled the initial issue of liability, and absent a finding that the board had intentionally acted to bring about the racial imbalance in the system after Brown I and II, the Deal courts had no reason or occasion to reach the matters raised and resolved in Green and its companion cases. Those cases dealt with the affirmative duty to desegregate school systems which were formerly segregated under state statute, and with the adequacy of remedies to achieve the goal of desegregation. They had no bearing on Deal, which dealt solely with the threshold issue of liability, and they, therefore, changed no law applicable to Deal.
B. Swann and Keyes: Considered by the Sixth Circuit in Bronson , 1975
In Bronson v. Board of Education, 525 F.2d 344, 345 (6th Cir. 1975), the Sixth Circuit granted an interlocutory appeal in the case at bar “to consider the important question of the applicability of the doctrine of res judicata to this school desegregation litigation.” Judge Lively, writing for the Court, began the opinion by tracing the history of the proceedings, including a brief history of Deal. He recalled that in Deal II, the District Court and the Sixth Circuit rejected the Deal plaintiffs’ assertions concerning changes in the law since Deal I. Regarding Green, Raney, and Monroe , he commented:
These three cases were viewed as holding that a court may require a school board to discard as inadequate a plan based on “freedom of choice” or “free transfer” which has not effectively desegregated a dual school system, and thus as applying only to districts formerly having de jure segregation.
Id. at 346.
The Court then considered “whether intervening changes had occurred in the law applicable to school desegregation litigation since Deal I and II which would make it inappropriate to permit the defendants [in Bronson ] to rely on res judicata or collateral estoppel.” Id. at 346-47 . As a prelude, Judge Lively summarized the District Court’s handling of the question. First, he pointed out that the District Court had concluded “that the basic holdings of Deal I and II have not been reversed or overruled.” Id. at 347. The summary continued:
It was noted that instances where school boards had been charged with the affirmative duty to weed out all vestiges of segregation “root and branch” involved remedy proceedings where previous actions or proceedings had established constitutional violations. The district court held that the Supreme Court decisions impose no such affirmative duty in the absence of a finding that a board has operated a dual school system or that de jure segregation has been practiced.
Id. (emphasis in the original). Judge Lively also noted that the District Court had acknowledged “ ‘developments and refinements’ in the law since Deal," but none “so drastic as to permit a relitigation of the issues” determined in Deal I and II. Id. The Court reiterated the District Court’s holding that “the question of segregative intent was critical to the decisions in Deal I and II and . . . this issue was settled by a finding that the Cincinnati Board had no such intent up to July 26, 1965, when the Deal inquiry ended.” Id.
As to the District Court’s first conclusion, the Sixth Circuit held that “[it] was clearly correct in finding that Deal I and II contin *866 ue to have ‘vitality.’ ” Id. The Court also pointed out that the plaintiffs “in the present case agree ... that the ‘holding [of Deal] that racial imbalance alone does not justify a school desegregation order by a Federal District Court . .. remains good law ....’” Id. (ellipses in the original).
The Court thereafter turned its attention to the Bronson plaintiffs’ contention “that certain aspects of Deal have been ‘overtaken’ by more recent decisions of the Supreme Court and this court.” Id. The two Supreme Court decisions urged by plaintiffs as having “changed the law sufficiently to render collateral estoppel inapplicable to the present case,” id. at 347-48, were Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 , 91 S.Ct. 1267 , 28 L.Ed.2d 554 (1971) (Swann), and Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189 , 93 S.Ct. 2686 , 37 L.Ed.2d 548 (1973) (Keyes). However, after distinguishing Keyes , and briefly commenting on several of its own school desegregation decisions rendered subsequent to Deal, the Sixth Circuit concluded that “there has been no such change in the law since Deal as to prevent altogether the application of the doctrine of collateral estoppel to this case.” Id. at 348-49.
1. Inapplicability of Swann to Deal
Swann and its companion cases 4 “arose in States having a long history of maintaining two sets of schools in a single school system deliberately operated to carry out a governmental policy to segregate pupils solely on the basis of race.” Swann, supra, 402 U.S. at 5-6, 91 S.Ct. at 1271 . In Swann , the proceeding which culminated in Supreme Court review “was initiated in September 1968 by petitioner Swann’s motion for further relief based on Green v. County Board . . . and its companion cases.” Id. at 7 , 91 S.Ct. at 1271 (emphasis added) (footnote omitted). The Court stated that it was presented with “issues as to the duties of school authorities and the scope of powers of federal courts under this Court’s mandates to eliminate racially separate public schools established and maintained by state action . .. (Brown /).” Id. at 5, 91 S.Ct. at 1271. The Court explained that the cases under consideration “present us with the problem of defining in more precise terms than heretofore the scope of the duty of school authorities and district courts in implementing Brown I and the mandate to eliminate dual systems and establish unitary systems at once.” Id. at 6, 91 S.Ct. at 1271 (emphasis added) (footnote omitted).
In Bronson , the Sixth Circuit made no explicit determination as to the impact of Swann on the law applicable to Deal, or to this case. Aside from noting that the District Court had distinguished remedy cases, of which Swann is one, from cases like Deal and Bronson, which involved the threshold question of liability, and later citing Swann as one of the cases upon which the Bronson plaintiffs relied in support of their position, 525 F.2d at 347 , Judge Lively made no specific comments about Swann . However, since the Sixth Circuit did not disagree with the District Court on the distinguishability of remedies cases from liability cases, it is fairly obvious that the Sixth Circuit agreed with Judge Porter’s conclusion, and therefore, implicitly agreed that the principles set forth in Swann did not change any law applicable to Deal that would support a departure from the application of collateral estoppel.
This conclusion, that Swann changed no law applicable to Deal, is not subject to review by this Court, nor would this Court disagree with that conclusion even if it had the power to do so. By more precisely defining “the scope of the duty of school authorities and district courts in implementing Brown I and the mandate to eliminate *867 dual systems and establish unitary systems at once,” 402 U.S. at 6, 91 S.Ct. at 1271, Swann did, indeed, bring about further refinements in the law of school desegregation. However, those changes, all of which pertain to remedial considerations once a constitutional deficiency has been established, were no more applicable to Deal, or to the threshold questions of liability presented in the case at bar, than the changes brought about by the Supreme Court’s decisions in Green, Raney, and Monroe .
Like the 1968 cases, Swann focused on matters that arose only after de jure segregation had been established, and the constitutional duty to desegregate had attached to the school board. Also like the 1968 cases, the Court in Swann was not presented with, and did not consider the question at issue in Deal of whether the racial imbalance in the system had been intentionally caused by the practices and policies of the school board. That question was settled in Swann , as it had been in Green, Raney, and Monroe , by virtue of the fact that the school system involved had been segregated under the state statute at the time of Brown I . This fact obviated the need for any threshold inquiry into the board’s intent to discriminate. Thus, Swann , like its 1968 predecessors, presented an entirely different situation from that presented in Deal, where there had been no statutorily-imposed segregation since 1887, and where the courts had found no de jure segregation in the years after Brown I and II.
In Swann , the Court made no pronouncements that would have authorized the Deal courts to order the school board to alleviate racial imbalance that it was held not to have caused. On the contrary, the Court stressed that, absent a finding of constitutional violation, the federal courts had no power or authority to order a school board to improve the racial balance of its schools. 402 U.S. at 16. The Court stated that a school board, in its discretion, could formulate a policy of prescribing ratios of blacks to white schools, reflecting the racial composition of the district, but such a policy “would not be within the authority of a federal court,” “absent a finding of constitutional violation . ... ” Id. Conversely, “[o]nce a right and a violation have been shown, the scope of the district court’s equitable power to remedy past wrongs is broad . . . . ” Id. at 15, 91 S.Ct. at 1275 (emphasis added). Moreover, the Court explained that under the circumstances presented in Swann , a neighborhood school policy was an ineffective remedy to achieve conversion from a dual system to a unitary one, but “[ajbsent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis.” Id. at 28 , 91 S.Ct. at 1282.
The Deal courts were simply not presented with a school system which had been racially dual under compulsion of state statute in 1954, and which, despite the mandate of Brown II, had remained unliquidated or largely unremedied in the intervening years. Rather, their inquiry concentrated on whether the racial imbalance existing in the system when the suit was filed could be traced to contemporary, intentionally segregative actions and policies of the school board. Finding no indicia of segregative intent on the part of the board in the years after Brown I and II, and having no reason to believe that a broader temporal inquiry was required, the requisite finding of liability that would have made Swann applicable, was absent. The conclusion in Deal that no remedial desegregation order was warranted or appropriate was entirely consistent with the principles set forth in Swann . Without the initial determination that the school system was, in some way, constitutionally deficient, Swann , like Green, Raney, and Monroe , did not change any law applicable to Deal. On the contrary, Swann gave all appearances of reinforcing the soundness of the findings and conclusions reached in Deal. It, therefore, presented no compelling reason for excepting the Bronson plaintiffs from the application of collateral estoppel.
2. Keyes : No Changes in the Law of School Desegregation Warranting Departure From the Application of Collateral Estoppel
Keyes , the second post-1968 Supreme Court decision relied upon by the Bronson *868 plaintiffs in 1975 to avoid the preclusive effect of the Deal judgment, was immediately distinguishable from the cases previously considered by the Sixth Circuit. Unlike the earlier cases, Keyes did not involve a school system that had been statutorily dual at the time of Brown I . In fact, as the Supreme Court noted in its statement of the case, the Denver school system had “never been operated under a constitutional or statutory provision that mandated or permitted racial segregation in public education.” Keyes, supra, 413 U.S. at 191 , 93 S.Ct. 2688 . Further, unlike the plaintiffs in the Green trilogy or in Swann , whose claims for relief were grounded in the school boards’ failure to meet their affirmative constitutional duty to effectively dismantle the dual systems existing pursuant to state statute in 1954, the Keyes plaintiffs sought relief on the grounds that the “School Board alone, by use of various techniques . . . [had] created or maintained racially or ethnically (or both racially and ethnically) segregated schools throughout the school district . ... ” Id. (emphasis added). Therefore, unlike the earlier cases, all of which involved issues arising from previously established de jure segregation, i.e., a former state segregation provision, Keyes presented the broad, threshold question whether the racial imbalance in the Denver schools, which could not be traced to a comparable state segregation provision, had been caused by the school authorities, thereby rendering it de jure, as opposed to de facto, segregation.
Of all the cases considered by the Sixth Circuit as of 1975, the potential for some aspect of Deal being overtaken by intervening Supreme Court authority was, by far, greatest in Keyes. The general features of Keyes, which distinguished it from the Green trilogy and Swann , were much the same as those identified to illustrate the inapplicability of those cases to Deal, e.g., the absence of a segregation statute for nearly eighty years before the action was brought; plaintiffs’ claims of school board discrimination in specific schools and programs within the system; and the need to determine the question of liability, as a threshold matter. Keyes, therefore, unlike any of its predecessors, provided the Sixth Circuit with its first opportunity to test the soundness of the approach and legal principles (e.g-., application of the dominant purpose test) underlying the Deal courts’ conclusion that the racial imbalance in the Cincinnati schools- was not violative of the constitutional rights of minority students and their parents. However, despite the general similarities, the Sixth Circuit ultimately found nothing in the guidelines developed by the Supreme Court in Keyes to justify permitting the Bronson plaintiffs to relitigate the issues decided in Deal.
Before turning to the Sixth Circuit’s discussion of Keyes in its 1975 Bronson opinion, this Court must digress to consider certain, specific aspects of Keyes that are not reflected when the case is described in general terms. Specifically, it is necessary to examine how the lower Keyes’ courts assessed plaintiffs’ claims and the conclusions they reached based on their factual findings and their methodologies. Thereafter, it is necessary to consider the precise question with which the Supreme Court was concerned, to which it devoted most of its opinion, and from which the Court developed the appropriate methodology to be applied in cases similar to Keyes.
Admittedly, this digression will disrupt the continuity of the instant discussion, to a certain extent. However, it will serve at least three purposes. First, it will provide an element of perspective to the Sixth Circuit’s relatively brief and narrowly focused discussion of Keyes in its Bronson opinion. Additionally, it will, by calling attention to certain important nuances in the case, establish the groundwork for this Court’s consideration of why most of the principles developed therein by the Supreme Court were not directly applicable to Deal. Finally, it will lay the necessary foundation for differentiating between Keyes, and Columbus and Dayton II. This, of course, is an essential predicate to this Court’s conclusion that the more recent Supreme Court cases have supplemented the law of school desegregation since 1975, by establishing the ne *869 cessity of considering certain issues that were not addressed in Deal, thereby rendering the Sixth Circuit’s 1975 Bronson opinion obsolete to the extent that it would bar the litigation of these issues.
a. Keyes: Supreme Court Holding That a Finding of Contemporary De Jure Segregation in a Portion of the School System Is Highly Relevant in Assessing Claim of Current, System-wide De Jure Segregation (1) The District Court
The Keyes plaintiffs brought suit in June, 1969, shortly after a newly elected Denver school board voted to rescind three resolutions adopted by the predecessor board, which had been “designed to desegregate the schools in the Park Hill area of the northwest portion of the city.” Keyes, supra, 413 U.S. at 192 , 93 S.Ct. at 2689 . When the cause came on for trial the following year, the plaintiffs were essentially proceeding on three claims for relief. The first claim alleged that the schools in Park Hill had been deliberately segregated by the school authorities, and that the rescission of the resolutions was unconstitutional. See, id.; see also, 313 F.Supp. 61, 63 . The second claim alleged that the school board had “created or maintained .. . segregated schools throughout the school district.” 413 U.S. at 191 , 93 S.Ct. at 2689 ; see also, 313 F.Supp. at 63 . The third claim alleged that the school authorities had “provided an unequal educational opportunity to students attending segregated schools within the District.” Id.
The District Court considered plaintiffs’ claims seriatim. On the basis of evidence of the board’s actions in the Park Hill area during a ten year period preceding commencement of the litigation, see, 303 F.Supp. 279, 284 , the District Court held that the board had “engaged over almost a decade after 1960 in an unconstitutional policy of deliberate racial segregation with respect to the Park Hill schools.” 413 U.S. at 192 , 93 S.Ct. at 2689 (footnote omitted). This holding was supported by findings that the board had, inter alia, constructed a “relatively small elementary school ... in the middle of the Negro community west of Park Hill,” id.; that it had gerrymandered attendance zones, id.; that it had used “ ‘optional zones,’ ” id., and that there had been an “excessive use of mobile classroom units.” Id. Having concluded that the board’s deliberate policy of discrimination in these schools for nearly a decade constituted de jure segregation, the District Court ordered the board to desegregate these schools by implementing the resolutions that had been rescinded. Id.
The District Court then turned to plaintiffs’ second claim, which sought a desegregation order for “all segregated schools in the city . . ., particularly the heavily segregated schools in the core city area.” Id. (footnote omitted). In addressing this claim, the Court made certain threshold determinations. It concluded that “its finding of a purposeful and systematic program of racial segregation ... in the Park Hill area did not, in itself, impose on the School Board an affirmative duty to eliminate segregation throughout the school district.” Id. at 193 , 93 S.Ct. at 2689 . Additionally, it concluded that “its finding of intentional segregation in Park Hill was not in any sense material to the question of segregative intent in other areas of the city.” Id. (emphasis added). Consequently, plaintiffs were required “to make a fresh showing of de jure segregation in each area of the city for which they sought relief.” Id.
In contrast to its conclusion regarding the existence of de jure segregation in Park Hill, the District Court determined the evidence adduced with respect to the other areas, and without regard to the finding in Park Hill, “was insufficient to ‘dictate the conclusion that this is de jure segregation .... [Instead, the Court concluded,] It is more like de facto to which the rule is that the court cannot order desegregation to provide a better balance.’ ” Id., quoting, 313 F.Supp. at 73 . Therefore, the Court granted no relief on plaintiffs’ second claim.
However, the District Court did find in favor of plaintiffs on their third claim. Specifically, it found plaintiffs’ evidence *870 sufficient to establish “that the segregated core city schools were educationally inferior to the predominantly ‘white’ or ‘Anglo’ schools in other parts of the district .. . . ” 413 U.S. at 193 . To alleviate the inequalities, the Court concluded that the board must adopt a program “ ‘of desegregation and integration which provides compensatory education in an integrated environment.’ ” Id. 413 U.S. at 194 , 93 S.Ct. at 2690 , quoting, 313 F.Supp. 90, 96 .
Thus, of the three claims presented to the trial court, only the first, regarding contemporary de jure segregation in Park Hill, and the third, regarding unequal educational opportunity in the core city schools, were found to be supported by the evidence. The evidence presented by plaintiffs with respect to the second claim regarding de jure segregation primarily in the core city schools, which was assessed separate and apart from the finding of contemporary de jure segregation in Park Hill, was found to be insufficient to support the relief sought, that is, “all-out desegregation,” id., of the entire Denver school district.
(2) The Tenth Circuit Court of Appeals
The Tenth Circuit’s opinion can be summarized with relative dispatch. With respect to plaintiffs’ first claim, and the trial court’s finding of contemporary de jure segregation in the Park Hill schools, the Court concluded, “there is ample evidence in the record to sustain the trial court’s findings that race was made the basis for school districting with the purpose and effect of producing substantially segregated schools in the Park Hill area.” 445 F.2d at 990, 1002; see also, 413 U.S. at 194 , 93 S.Ct. at 2690 . The Court rejected plaintiffs’ contentions with respect to the second claim and left undisturbed the trial court’s finding of no de jure segregation in the core city schools. However, the Tenth Circuit reversed the trial court’s determination with respect to the third claim regarding unequal educational opportunity in the core city schools. Id. at 194-95 , 93 S.Ct. at 2690 . Like the District Court, “the Court of Appeals also disregarded . .. [the] Board’s deliberate racial segregation policy respecting the Park Hill schools .. .id. at 195, 93 S.Ct. at 2690 , in assessing plaintiffs’ claims respecting the core city schools. Based on its review, the Tenth Circuit upheld the trial court’s order that the Park Hill schools be desegregated, but set aside that portion of the decree requiring the implementation of remedial measures- in the core city schools. Id.
(3) The Supreme Court
Although it may appear to be an unimportant point, this Court notes at the outset of its consideration of the Supreme Court’s opinion in Keyes that both the plaintiffs and the school board petitioned for certiorari. Plaintiffs petitioned for review of that portion of the Tenth Circuit’s judgment reversing “the District Court’s Final Decree as pertained to the core city schools (i.e., based on plaintiffs’ third claim).” Id. at 195, 93 S.Ct. at 2690 . The school board cross-petitioned for review of that portion of the Tenth Circuit’s judgment affirming “the District Court’s Final Decree as pertained to the Park Hill schools (i.e., based on plaintiffs’ first claim).” Id. The Supreme Court, however, granted certiorari only on plaintiffs’ petition; it denied the cross-petition, seeking review of the lower courts’ resolution of the plaintiffs’ claim with respect to Park Hill.
Given the posture of the case when it came before the Supreme Court, it is not surprising that, after briefly addressing an issue of no relevance herein, 5 the question identified by the Court as “the only . . . question that requires our decision at this time . . .,” id. at 198 , 93 S.Ct. at 2692 , had nothing whatever to do with the correctness of the lower courts’ finding of contemporary de jure segregation in the Park Hill schools. Instead, the Court’s attention was solely directed to the question “whether the District Court and Court of Appeals applied an incorrect legal standard in addressing *871 petitioners’ contention that respondent School Board engaged in an unconstitutional policy of deliberate segregation in the core city schools." Id. (emphasis added). In a footnote, the Court emphasized, in rebuttal to a point raised by the dissent, “[W]e have no occasion to review the factual findings concurred in by the two courts below. . .. We address only the question whether those courts applied the correct legal standard in deciding the case as it affects the core city schools.” Id. n.9 (emphasis added). Thus, the undisturbed finding of contemporary de jure segregation in Park Hill became the focal point for the analytical guidelines developed by the Supreme Court in Keyes. To put it another way, it became the predicate for both of the alternative inquiries that the Supreme Court said must be conducted by a court in assessing plaintiffs’ claim of current, systemwide de jure segregation in the absence of a former segregation statute.
To illustrate, the Court began its discussion with a general proposition regarding the plaintiffs’ initial burden of proof in a case where the school system had never been statutorily dual. In such a case, “plaintiffs must prove not only that segregated schooling exists but also that it was brought about or maintained by intentional state action.” Id. Applying this standard to the case before it, the Court immediately pointed out that, at least with respect to Park Hill, plaintiffs had proven that the board “had engaged in an unconstitutional policy of deliberate racial segregation,” id., for almost ten years prior to commencement of the litigation. The Court then added an observation that is not clearly reflected in the lower courts’ opinions, namely, that this finding of deliberate or de jure segregation in Park Hill “did not relate to an insubstantial or trivial fragment of the school system,” id. at 199, 93 S.Ct. at 2692 , but rather, in the 1969 school year, affected some “37.69% of Denver’s total Negro school population. . . . ” Id.
From the point at which the Court reiterated the lower courts’ finding in Park Hill, and remarked that the finding of de jure segregation therein had more than a de minimis effect on the Negro student population in the system as a whole, the question to which the Court thereafter directed its attention was, roughly stated, of what relevance is a finding of contemporary de jure segregation in a substantial portion of a school system in assessing plaintiffs’ claim that the entire school system is, likewise, unconstitutionally constituted. In other words, the Court considered whether, and to what extent, the lower courts’ total disregard of this finding of contemporary de jure segregation in a substantial portion of a school system (i.e., Park Hill) had been a fatal flaw in their methodologies with respect to the remainder of the system. The Supreme Court answered this question in two alternative ways, both of which made clear that such a finding is of potentially dispositive importance, and, as such, had been erroneously ignored by the lower courts.
The Court’s first answer, regarding the relevance of this finding of de jure segregation in Park Hill to the consideration of plaintiffs’ claim of de jure segregation in the core city, came in response to the following contention by the school board:
[A] finding of state-imposed segregation as to a substantial portion of the school system can be viewed in isolation from the rest of the district, and that even if state-imposed segregation does exist, it does not follow that the District Court could predicate on that fact a finding that the entire school system is a dual system.
Id. at 200 , 93 S.Ct. at 2693 . (emphasis added). The Court disagreed for several reasons. First, it stated that “a practice of concentrating Negroes in certain schools by structuring attendance zones or designating ‘feeder’ schools on the basis of race has a reciprocal effect of keeping other nearby schools predominantly white.” Id. at 201 , 93 S.Ct. at 2694 (footnote omitted). The Court also listed numerous other practices which, if racially motivated, “may have a profound reciprocal effect on the racial composition of residential neighborhoods within a metropolitan area, thereby causing *872 further racial concentration within the schools.” Id. at 202 , 93 S.Ct. at 2694 .
The Court acknowledged that, in rare cases, the physical characteristics of a school district “may have the effect of dividing the district into separate, identifiable and unrelated units.” Id. at 203 , 93 S.Ct. at 2695 . However, absent such a factual determination, the Court declared that “proof of state-imposed segregation in a substantial portion of the district will suffice to support a finding by the trial court of the existence of a dual system.” Id. (emphasis added).
Applying the above principle to the facts of the case, the Supreme Court directed the District Court on remand to determine, in the first instance, whether the Park Hill area of the district, wherein contemporary de jure segregation had been established, could be viewed in isolation from the remainder of the district. Id. at 213 , 93 S.Ct. at 2699 . If the Board failed to make such a showing, a finding of a dual system could properly be predicated on the finding of de jure segregation in Park Hill, and the Board would, thereafter, be under an affirmative duty to desegregate the entire Denver School system. See, id. at 203, 213 , 93 S.Ct. at 2695, 2699 .
The Court’s discussion did not, however, end when it directed the District Court to consider whether the finding of contemporary de jure segregation in Park Hill provided a predicate for finding the entire school system a dual one. Rather, the Court then proceeded to announce a second or alternative way in which this finding should have been considered in “addressing petitioners’ contentions of deliberate segregation in the core city schools,” id. at 205 , 93 S.Ct. at 2696 , that is, as a predicate for establishing a presumption or prima facie showing of current de jure segregation in those schools. The starting point for this discussion was the rejection of the District Court’s “premise that the finding as to the Park Hill schools was irrelevant to the consideration of the rest of the district,” id., and the concomitant requirement that plaintiffs prove “a current condition of segregation resulting from intentional state action directed specifically to the core city schools.” Id. at 205-06 , 93 S.Ct. at 2696 (footnote omitted).
The Court recalled that on the question of the board’s segregative intent, plaintiffs had “presented evidence tending to show that the Board, through its actions over a period of years, intentionally created and maintained the segregated character of the core city schools,” id. at 206 , 93 S.Ct. at 2696 , but that the lower courts had accepted the board’s explanation that the racial imbalance in these schools was the result of a “racially neutral ‘neighborhood school policy,’ ” id. at 206 , 93 S.Ct. at 2696 , and concluded therefrom that a finding of de jure segregation was impermissible. The Supreme Court found the lower courts’ assessment “clearly incorrect,” id. at 207 , 93 S.Ct. at 2697 , assigning as error the lower courts’ failure to perceive the relevance between the deliberate segregation proven to exist in Park Hill and petitioners’ contention of deliberate segregation in the core city schools. Specifically, the Court stated, “[ajlthough petitioners had already proven the existence of intentional school segregation in the Park Hill schools, this crucial finding was totally ignored when attention turned to the core city schools.” Id. (emphasis added).
The Court found this aspect of the lower courts’ methodology untenable because:
Plainly, a finding of intentional segregation as to a portion of a school system is not devoid of probative value in assessing the school authorities’ intent with respect to other parts of the same school system. On the contrary, where . .. the case involves one school board, a finding of intentional segregation is highly relevant to the issue of the board’s intent with respect to other segregated schools in the system.
Id. (emphasis added),
Applying certain well-established evidentiary principles, see, id. at 207-08 , 93 S.Ct. at 2696-97 , the Supreme Court articulated its second reason for finding error in the lower court’s approach with respect to the core city schools:
*873 [A] finding of intentionally segregative school hoard actions in a meaningful portion of a school system . . . creates a presumption that other segregated schooling within the system is not adventitious. It establishes, in other words, a prima facie case of unlawful segregative design on the part of school authorities, and shifts to those authorities the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions.
Id. at 208 , 93 S.Ct. at 2697 (emphasis added). The Court added that the presumption would be created and the prima facie case established, even if the system were determined to be comprised of independent units because:
[E]ven in that situation, there is a high probability that where school authorities have effectuated an intentionally segregative policy in a meaningful portion of the system, similar impermissible considerations motivated their actions in other areas of the system.
Id. The Court emphasized “that the differentiating factor between de jure segregation and so-called de facto segregation . .. is purpose or intent to segregate.” Id. (emphasis in the original) (footnote omitted).
Having announced that a prima facie showing of intentional segregation shifts the burden to school authorities to rebut the presumption that the segregation shown to exist was motivated by or resulted from intentionally segregative acts of the school board, the Court advanced to a discussion of the means by which school authorities could and could not meet their burden. For example, reliance “upon some allegedly logical, racially neutral explanation for their actions,” id. at 210 , 93 S..Ct. at 2698, would not satisfy the burden. On the other hand, proof that “segregative intent was not among the factors that motivated their actions,” id., would suffice.
Additionally, the Court, in essence, apprised the Keyes board that it could not rebut the presumption of current segregative intent in the core city schools, predicated on the finding of contemporary de jure segregation in Park Hill, merely by relying on the fact that its intentionally segregative acts in the core city schools had taken place at some point in the remote past. Id. at 210-11, 93 S.Ct. at 2698-99 . On the other hand, the presumption could be rebutted “by evidence ... that a lesser degree of segregated schooling in the core city area would not have resulted even if the Board had not acted as it did.” Id. The Court added that “if respondent School Board cannot disprove segregative intent, it can rebut the prima facie case only by showing that its past segregative acts did not create or contribute to the current segregated condition of the core city schools.” Id. (emphasis added).
The Supreme Court also indicated that an application of the above principles, concerning the establishment of a prima facie case and rebuttal of same by the school authorities, might not be called for under the peculiar facts of the case. If the District Court determined, on the basis of the board’s decade-long policy of deliberate segregation in Park Hill, that the entire school system was a dual one, the board’s duty to desegregate the entire system would attach, and no further inquiry into liability would be required. See, id. at 213 , 93 S.Ct. at 2699 . However, in the event that the District Court was unable to reach such a conclusion, it was then directed to inquire further. Specifically, the Supreme Court directed the trial court to “afford . .. [the] Board an opportunity to rebut petitioners’ prima facie case of intentional segregation in the core city schools raised by the finding of intentional segregation in the Park Hill schools.” Id. If the board failed to present sufficient evidence to rebut the presumption, the trial court was required to “decree all-out desegregation in the core city schools.” Id. at 214 , 93 S.Ct. at 2700 .
In summary, the Supreme Court in Keyes dismissed the board’s petition to review the lower court’s legal conclusion that the Park Hill schools had been intentionally segregated by the board during the ten years prior to commencement of the litigation, and declined to review any of the factual *874 findings upon which that conclusion rested. Instead, the Court directed, its attention toward determining whether, and in what manner, the lower courts had applied a faulty methodology in assessing plaintiffs’ claims of current de jure segregation in the core city schools. The flaw identified by the Supreme Court was the lower courts’ total disregard of the finding of contemporary de jure segregation in, what the Court described as, a substantial portion of the school district, i.e., Park Hill. The Court discussed two different ways in which this finding should have been considered. First, it should have been considered for the purpose of determining whether it provided a predicate for finding the entire school system a dual one, thereby ending the inquiry into liability and requiring systemwide desegregation. Second, even if the finding in Park Hill did not constitute the entire system a dual one, it, nonetheless, established a prima facie case of current, systemwide de jure segregation which, if not rebutted by the school authorities, also ended the inquiry into liability and required an “all-out” desegregation order.
b. Sixth Circuit’s Discussion of Keyes in Bronson
Having examined Keyes in some detail, highlighting certain vagaries of the litigation from its inception through the Supreme Court’s review, this Court now turns to the Sixth Circuit’s discussion of Keyes in its 1975 Bronson opinion, which is relatively brief and narrowly focused. In Bronson, supra, 525 F.2d at 347 , the Sixth Circuit specifically considered Keyes in connection with plaintiffs’ contention that “the Deal finding of no segregative intent” had been rendered invalid “to the extent that [it] was based upon a ‘dominant purpose’ test rather than one which looked to the natural and probable effects of the Board’s action and inactions . ... ” The Court focused on the aspects of Keyes which plainly refuted plaintiffs’ claim.
Rather than supporting the proposition that the Supreme Court had directly or indirectly disavowed an inquiry into purpose or intent to segregate in a case similar to Deal, in favor of one that looked only to the effects of the board’s actions, the Sixth Circuit found that the Keyes’ plaintiffs had been held to a burden of proof which specifically included a showing of intent or purpose to segregate. The Sixth Circuit observed:
[I]n Keyes .. . which involved a school system like Cincinnati’s, where there had never been state-mandated segregation, the plaintiffs were required to prove “not only that segregated schooling exists but also that it was brought about or maintained by intentional state action.” 413 U.S. at 198 [ 93 S.Ct. at 2692 ] ... In Keyes, the Court emphasized that the “differentiating factor between de jure segregation and so-called de facto segregation ... is purpose or intent to segregate.” 413 U.S. at 208 [ 93 S.Ct. at 2697 ] . .. (emphasis in the original).
525 F.2d at 348 . Given the above, explicit language from Keyes, the Sixth Circuit reasoned that “contrary to plaintiffs’ claim [that the “dominant purpose” test used in Deal had been replaced by an “effects” test], the Supreme Court appears to have held that intent is synonymous with purpose in determining whether racial imbalance ... in a school system that was never segregated by state law results in a constitutional violation.” Id.
The Court stressed that in Keyes the Supreme Court had retained, rather than eliminated, the distinction between de jure and de facto segregation, and that it had continued “to apply different standards to the determination of two different questions.” Id. To clarify, the Sixth Circuit explained that in cases where the school system had formerly been segregated under state law, an inquiry into the board’s intent was unnecessary because “[t]he state action requirement of the Fourteenth Amendment is not an issue.” Id. Consequently, the pertinent question in such a case is whether “the methods adopted by a school board [are] effective to dismantle a dual system.” Id. (emphasis added). In contrast, where the school system involved had never been segregated under a state segregation provi *875 sion, the state action requirement is at issue, and is satisfied only if the segregation is “shown to result from intentional acts, omissions or policies of public officials or public bodies.” Id In this type of school desegregation case, the pertinent question is whether “a racial imbalance in a unitary system exist[s] because of actions and policies of public officials, primarily the school board, which reflect and carry out a purpose or intent to segregate.” Id. (emphasis added). Of these two, separate and distinct questions, Keyes involved only the later inquiry. In Bronson , the Sixth Circuit recognized that it, too, was “concerned only with the second question.” Id.
Thus, in Bronson , the Sixth Circuit illustrated that the general burden of proof adopted by the Supreme Court in Keyes, for plaintiffs in a case where the school system had never been statutorily dual, was virtually the same as that to which the plaintiffs had been held in Deal, where statutorily-mandated segregation had been abolished nearly eighty years prior to the commencement of the litigation. In view of these similarities, the correctness of the standard applied by the Deal courts, underlying their finding of no segregative intent, was fully reinforced, rather than invalidated by Keyes. Since Keyes had not significantly changed the requirement that intent or purpose to segregate be proven to establish de jure segregation in the absence of a former segregation statute, the Sixth Circuit concluded that Keyes had not overtaken Deal and, therefore, provided no basis for excepting plaintiffs from the application of collateral estoppel.
c. Most of Principles Developed by Supreme Court in Keyes Were Not Directly Applicable to Deal Because, Unlike the Keyes Plaintiffs, the Deal Plaintiffs Failed to Prove Contemporary De Jure Segregation in Any Portion of the Cincinnati School System
This Court is unquestionably bound by the Sixth Circuit’s conclusion in Bronson , that Keyes presented no reason for permitting plaintiffs to present any evidence for the purpose of attempting to establish a constitutional violation prior to July 26, 1965. The Court is also well aware that Keyes is the authority most heavily relied upon by the Supreme Court in Columbus and Dayton II, and that, because of this reliance, defendants herein contend that a departure from the Sixth Circuit’s 1975 Bronson opinion cannot be justified on the basis of the intervening authority.
As a final step before turning to Columbus and Dayton II to consider how the developments therein have supplemented the body of school desegregation law existing in 1975, and in so doing have, in part, rendered the Sixth Circuit’s 1975 Bronson opinion obsolete, it is necessary to consider why, when the Sixth Circuit considered Keyes in 1975, none of the principles developed therein, regarding the ingredients of a prima facie case of current, systemwide de jure segregation, burden shifting, or the means by which a school board could and could not meet its burden, were directly applicable to Deal. This inquiry will disclose the reasons why Keyes, standing alone in 1975, gave no indication that the Deal courts had not addressed all of the relevant issues arising or potentially arising from plaintiffs’ evidence, in concluding that the school board had not caused or contributed to the racial imbalance existing in the system, as of July 26, 1965. Moreover, it will provide underlying support for this Court’s conclusion that the supplementary developments emerging from Columbus and Dayton II have rendered the Sixth Circuit’s 1975 Bronson opinion obsolete to the extent that it would foreclose litigation of certain pre-July 26, 1965 issues which are or may become relevant in this case, that were not discernible to the Sixth Circuit in 1975, and which were not actually litigated and determined in Deal.
When this Court attempted to apply the methodology advanced by the Supreme Court in Keyes to Deal, it became apparent almost immediately that, because of significant differences between the factual findings concurred in by the lower Keyes courts and those concurred in by the Deal courts, Deal is not susceptible to a strict Keyes *876 type analysis. There are general similarities between the two cases, e.g., plaintiffs’ claims of current de jure segregation in the absence of a state segregation statute at the time of Brown I , and the necessity of considering the question of liability, as a threshold matter. However, the analogy between them ends abruptly at the point where the lower Keyes courts and the Deal courts, applying virtually the same standard, reached contrary conclusions on the first question they considered, that is, whether the school authorities had intentionally segregated certain schools in the system during the decade or so prior to the commencement of the respective lawsuits. More specifically, Keyes ceases to be directly applicable to Deal when the lower Keyes courts, considering plaintiffs’ evidence from approximately 1960 to 1969, found that the board had used a variety of intentionally segregative devices in the Park Hill schools, whereas the Deal courts, considering plaintiffs’ evidence of the board’s programs and practices in certain schools between approximately 1956 and 1965, see, Deal II, supra, 419 F.2d at 1395, 1398-1401 , found no comparable indicia of the use of intentionally segregative devices anywhere in the Cincinnati school system.
Looking first at Keyes, it will be recalled that, in addressing plaintiffs’ first claim regarding de jure segregation in Park Hill, all the board actions considered by the District Court occurred “during the last ten years.” 303 F.Supp. at 285 . On the basis of that evidence, the Keyes’ plaintiffs were held to have met their general burden of proof on this claim, by showing that the school board had implemented numerous intentionally segregative tactics, to wit:
[B]y construction of a new, relatively small elementary school ... in the middle of the Negro community west of Park Hill, by gerrymandering student attendance zones, by use of so-called “optional zones,” and by the excessive use of mobile classroom units, among other things . . . over almost a decade after 1960 ....
413 U.S. at 192 , 93 S.Ct. at 2689 (footnote omitted). Based on these factual findings, sustained by the Tenth Circuit, and unreviewed by the Supreme Court, the District Court found that:
“[Bjetween 1960 and 1969 the Board’s policies with respect to these northwest Denver schools shows an undeviating purpose to isolate Negro students” in segregated schools “while preserving the Anglo character of [other] schools.” 303 F.Supp. at 294 .
413 U.S. at 198-99 , 93 S.Ct. at 2692-93 . It was this “crucial finding . . . totally ignored,” id. at 207 , 93 S.Ct. at 2897 , by the lower Keyes’ courts, which became the starting point for the Supreme Court’s discussion, and which precipitated the development of most of the principles emerging from the Supreme Court’s opinion.
The factual findings in Deal are markedly different. Although the Deal plaintiffs offered evidence about the past history of the Cincinnati school system, the trial court focused its attention on the contemporary evidence presented by plaintiffs in support of their claim of board discrimination in specific schools and programs. See, Deal II, 419 F.2d at 1398-1401 (Subsidiary Findings of Fact). Only two of these findings make any reference to events or occurrences in the early 1950’s or before. See, id. at 1398, 1399 (Subsidiary Findings of Fact # 1, 8). Moreover, the Sixth Circuit explicitly declined to rule on remote programs and practices, discontinued prior to commencement of the litigation. Id. at 1395 . Thus, the temporal scope of the Deal courts’ inquiry, approximately 1956-1965, closely parallels the District Court’s initial inquiry in Keyes, roughly 1960-1969.
However, in contrast to the evidence in Keyes, which showed that the Denver school board had employed various intentionally segregative techniques to segregate the schools in Park Hill between 1960 and 1969, Judge Peck found no evidence that the Cincinnati school board had employed similar techniques between 1956 and 1965. Specifically, the District Court in Deal found no evidence of gerrymandering, see 244 F.Supp. at 572 ; 419 F.2d at 1398, 1399, 1400 (Findings of Fact, # 5, 6, 12); no *877 evidence of attendance zones being drawn with segregative intent, id. at 1398- 1400 (Findings of Fact, # 7, 8, 10 -12); no evidence of an intentionally segregative transfer policy, id. at 1400-01 (Findings of Fact # 13-15); and no evidence of intentionally segregative school site selection or construction. Id. at 1399-1400 (Findings of Fact # 8, 9, 12). Although there was evidence regarding the transportation of students, the trial court found that such transportation was not only not undertaken with intent to segregate, but that it had actually brought the races into closer proximity. Id. at 1400 (Findings of Fact # 13 14). The Sixth Circuit made an additional finding that there had been no evidence of discrimination in the hire or assignment of faculty or staff. Id. at 1393-1394 .
Additionally, in contrast to the Deal plaintiffs’ claim that the school board had intentionally segregated schools in Cincinnati, and in contrast to the findings supported by the evidence presented by Keyes’ plaintiffs regarding the Park Hill schools, Judge Peck found, from the evidence considered, that the attendance zones in Cincinnati reflected an “avoidance where possible of predominantly Negro schools to the extent that the Board had any control over the causes which create such predominance,” id. at 1398 (Findings of Fact # 2); that the board had “consistently withstood efforts to assign children on the basis of race,” id. at 1401 (Findings of Fact # 15); and that the board had denied “[application for transfer from one school to another to avoid attendance with schools [sic] of another race . . . . ” Id.
The above juxtaposition of the factual findings supported by the evidence considered in Keyes and Deal discloses significant differences between what was occurring in the Park Hill area of the Denver school district, and what was apparently not occurring in any portion of the Cincinnati school system in the ten year periods preceding the lawsuits. Given these disparities, it is not surprising that the courts reached different conclusions on the intent issue, while applying virtually the same standard. The record in Keyes is replete with evidence supporting the finding that “for almost a decade after 1960 respondent School Board had engaged in an unconstitutional policy of deliberate racial segregation in the Park Hill schools.” 413 U.S. at 198 , 93 S.Ct. at 2692 . In direct contrast, the evidence presented by the Deal plaintiffs, with respect to the board’s programs and practices between approximately 1956 and 1965, fully supported the finding that “neither gerrymandering nor any other alleged discriminatory practice on the part of the Board brought about such racial imbalance as existed ... [in the Cincinnati school system, as of July 26, 1965].” 419 F.2d at 1398 .
Because of the

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8877983. Public record. Not legal advice.