Bell v. Board of Education

BAILEY BROWN, Circuit Judge,

concurring.

I concur in the opinion authored by Judge Merritt but add a few words of my own.

As pointed out in that opinion, appellants have made it absolutely clear that, to the extent that they base their case on conduct of the Board of Education of Akron, they contend that the Board was guilty of unconstitutional discrimination before Arnold v. Ott (the prior Akron school case) and that the Board had the affirmative duty after Arnold v. Ott to undo the effects of such conduct, which it had not done. In this connection, after making this position clear in their brief, appellants’ reply brief again states:

It is on the basis of the evidence presented in this case — which was not presented in Arnold v. Ott — that it must be determined whether a dual school system for constitutional purposes existed in the Akron Public Schools as of 1965. If such a dual school system existed, the board has the affirmative obligation to dismantle that dual school system, and the existence of that obligation in 1980 cannot be precluded by a finding in the board’s favor in a different action in 1968.

Appellants contend that the issue preclusion principles of Bronson v. Board of Education, 525 F.2d 344 (6th Cir. 1975) cannot be applied in the instant case because there was no order of certification as a class action in Arnold v. Ott. There are at least two answers to this contention. In the first place, as pointed out in Bronson ( 525 F.2d at 349 ), Deal (the prior Cincinnati school case to which Bronson was directed) was not filed as a true class action but instead was a “spurious” class action under Rule 23 before the 1966 amendments. It was for this reason that the Bronson court gave only collateral estoppel or issue preclusion effect to Deal rather than res judicata effect. 525 F.2d at 349 . Thus Bronson supports the proposition that issue preclusion would apply here if Arnold v. Ott were not *970 a true class action. The fact is, however, that Arnold v. Ott was filed as a class action to which the 1966 amendments applied, was treated as such by the parties, and while an order of certification was not entered, the district court’s opinion twice refers to it as a class action. Accordingly, for our purposes it was a true class action. Senter v. General Motors Corp., 532 F.2d 511, 522 (6th Cir. 1976). It follows, then, that issue, preclusion is the minimum effect that can be given to Arnold v. Ott.

I agree with Judge Merritt’s interpretation of the holding in Bronson , considering the opinions by Judge Lively, Judge Phillips, and Judge Weick (including the opinion on the petition to rehear). In a nutshell, this holding is, as applied to the instant case, that while evidence of facts prior to Arnold v. Ott could be considered as background material to the contention that the Board was guilty of intentional discrimination after that opinion, appellants were precluded from contending that the Board was guilty of intentional discrimination prior to that decision. The sound policy reasons for applying issue preclusion in this case are well set out in Judge Lively’s opinion in Bronson ( 525 F.2d at 349 ) and Judge Merritt’s opinion in this case.

I also agree with Judge Merritt’s opinion to the effect that intentionally segregative housing actions by other governmental entities, even if proved, cannot be the basis of ordering the Board of Education of Akron to attempt to remedy the results thereof in the schools. In addition to the statement of Justice Powell upon the grant of certiorari in Austin Independent School District v. United States, 429 U.S. 990 , 97 S.Ct. 517 , 50 L.Ed.2d 603 (1976), quoted by Judge Merritt, this court in Bronson, 525 F.2d at 345-346 , referring to Deal I, 369 F.2d 55 (1966), said:

This court declared that the critical fact determination in an action charging a school board with violation of the rights of minority pupils is whether an existing racial imbalance is intentionally caused by discriminatory practices of the board. A statistical imbalance standing alone is not enough; official discrimination is required to invoke the protection of the Fourteenth Amendment. On this basis we upheld the exclusion by the district court of evidence of alleged discrimination in the public and private housing market of Cincinnati — acts over which the school board had no control. (Emphasis added.)

For these reasons I concur in Judge Merritt’s opinion.