Mona Bronson v. Board of Education of the City School District of Cincinnati, Its Members, Etal.

PHILLIPS, Chief Judge

(concurring).

I concur in the opinion prepared by Judge Lively affirming the decision of the District Court, as interpreted and modified by this court. I add these observations only to emphasize what I understand to be the practical effects of our decision.

Nothing in the doctrine of collateral estoppel prevents plaintiffs from introducing evidence of events occurring in the Cincinnati school system after July 26, 1965. Plaintiffs are free to offer this evidence and to argue for any interpretation of the evidence they consider necessary to vindicate their rights under the Fourteenth Amendment.

The evidence submitted to the District Court in Deal stands on a different footing. This evidence was the subject of exhaustive litigation and was considered fully by the District Court. This court ruled in Deal II that the findings of fact of the District Court in that case were not clearly erroneous. 419 F.2d 1387, 1395 (6th Cir. 1969). The Supreme Court *351 denied certiorari. 402 U.S. 962 , 91 S.Ct. 1630 , 29 L.Ed.2d 128 (1971). Accordingly, the findings of fact based upon this evidence are binding upon all the parties to the present case as of the effective date of Deal II. Plaintiffs may not now urge upon the court findings or interpretations of that evidence different from those made by the District Court in Deal.

This is not to say, however, that the findings made in Deal and the underlying evidence must be ignored in the present litigation. To the contrary, so long as the Deal findings are not directly or indirectly contradicted, the court in the case at hand is free to rely upon the evidentiary fruits of the earlier case in determining whether the present status of the Cincinnati school system is the result of constitutional violations on the part of the defendants.

The plaintiffs in Deal spent two and one-half years poring over the books and records of the Cincinnati school system. Vast quantities of documentary and testimonial evidence were presented at trial. It may seem unlikely that plaintiffs now could discover relevant evidence relating to the pre-1965 period that was not before the District Court when it made findings in Deal. Nevertheless, it is possible that such evidence may come to light during the course of the present litigation, and its effect must be considered. To the extent that newly discovered evidence of pre-1965 occurrences is relevant in assessing the constitutionality of defendants’ conduct after July 26, 1965, it may be admitted for that purpose. A more difficult question would be presented if the new evidence suggested that the findings in Deal were incorrect.

School children born or starting to school after the decision in Deal II are entitled to have introduced on their behalf in the present case relevant evidence as to matters occurring prior to July 26, 1965, regardless of whether that evidence contradicts the Deal findings. If new evidence of pre-1965 events, substantially undercutting the Deal findings, is introduced on behalf of school children born or starting to school after the decision in Deal II, the District Court may receive it and should consider whether some or all of those findings continue to be viable.

Thus it is apparent that collateral estoppel has only a limited effect in this case. Plaintiffs have wide latitude in marshalling evidence in support of their claim for relief. They are precluded only from relying on the evidence presented in Deal to support findings different from or inconsistent with those actually made in that case.