Petition — School District No. 1 v. Keyes

IN THE

Supreme Court of the United States

October Term, 1975

No-€D- 701 |

SCHOOL DisTRICT No. 1, DENVER,

COLORADO, et al.,

Petitioners,

VS.

WILFRED KEYES, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

William K. Ris Thomas E. Creighton

1140 Denver Club Building Michael H. Jackson

Denver, Colorado 80202 Benjamin L. Craig

1415 Security Life Building

Denver, Colorado 80202

Attorneys for Petitioners

- BRADFORD PRINTING. DENVER

INDEX

PAGE

ED 65.6 bows cueees eneeecteneatence l

Se eae ee er ee ee 2

Constitutional Provision Involved ................. 2

RE eT eee ee ee 2

EPPO EPPTU CE TTT CULT ET IT CT 3

Reasons for Granting the Writ ................+5.. 15

I.

II.

III.

Certiorari Should Be Granted to Resolve Ques-

tions of Interpreting and Applying This Court’s

Standard for Determining the Existence of a

Dual School System, Where the Basis for Such

Determinations Is the Prior — and Since Rem-

edied — Existence of State-Imposed Segrega-

tion as to a Substantial Portion of That System .

Certiorari Should Be Granted to Resolve Ques-

tions Inherent in Applying Standards Developed

for Disestablishing Pure Dual School Systems

(Separate Schools for Each Race) to the Dis-

establishment of a Constructive Dual System

(Where Pupils Were Never Excluded on Ac-

count of Race and Where Races Are Mixed in All

Schools) Implied in Law From the Prior Ex-

istence of State-Imposed Segregation in a Sub-

stantial Portion of the System .............

Certiorari Should Be Granted to Correct Other

Departures, by the Courts Below, From This

Court’s Requirement That the Remedy for State

JImpcsed School Segregation Be Limited by the

Natuye and Extent of Such Segregation, Where

Those Courts Have Ordered Ethnic Quotas for

15

18

PAGE

Teacher Hiring and Continued Reassignment

of Pupils to Maintain Decreed Ethnic Ratios ... 22

ee no as nh oeneseekeeetecseeereunads 24

Attached Appendix ........2cccccccccccgecccce laa

TABLE OF AUTHORITIES

CASES

Alexander v. Holmes County Board of Education,

Fe Ch BCU ccc ccevdervovesvesess 18,19

Brown v. Board of Education (Brown II), 349

if & 7). | PrrrrrerrrrrrTrriT TT Tree 21

Calhoun and Armour v. Cook, No. 74-2784,

Sth Cie., Gotaber 23, 1975 2. cccccccccccces 18, 21n

Green v. County School Board of New Kent County,

BOO Cs GE CORED co cecccccccesvcsvvess 19,21

Higgins v. Board of Education of City of Grand. .

Rapids, 508 F. 2d 779 (6th Cir. 1974) ........ 22, 23

Keyes, et al. v. School District No. 1, 413 U.S.

Sa: | SPrrrerrrvres rc TT eee passim

Milliken v. Bradley, 418 U.S. 217 (1974) ....... 19n, 20

Spangler v. Pasadena City Board of Education, 375

F. Supp. 1304 (1974), cert. granted sub. nom.

Pasadena City Board of Education v. Spangler,

No. 75-164, November 11, 1975.) ...........4.. 24

Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971) .....-ceeeeees 18, 19, 20, 22, 24

United States v. School District of Omaha, 521 F.2d

530 (1975), cert. den., US. (1975) .... 15n

IN THE

Supreme Court of the Gnited States

October Term, 1975

SCHOOL DisTRICT No. 1, DENVER,

COLORADO, et al.,

Petitioners,

vs.

WILFRED KEYES, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Petitioners respectfully pray that a writ of certiorari issue

to review the judgment and opinion of the United States

Court of Appeals for the Tenth Circuit entered in this case

on August 11, 1975.

Opinions Below

The opinion of the Court of Appeals of August | 1, 1975, is

reported at 521 F.2d 465 and is printed in the separate Joint

Appendix to this petition at pp. 2a-91a. Three memorandum:

orders and a final decree of the United States District Court

for the District of Colorado, all of which were reviewed by the

Court of Appeals, are also printed in the Joint Appendix and,

except for the decree, are reported as follows: Order of De-

cember 11, 1973, determining that petitioner is a dual school

system, 368 F. Supp. 207 (Joint Appendix, pp. 270a-282a) ;

orders of April 8, 1974, and April 24, 1974, regarding pupil

reassignment and other matters, 380 F. Supp. 673 (Joint Ap-

2

pendix, pp. 122a-269a). The Final Judgment and Decree

entered April 17, 1974, is printed in the Joint Appendix at

pp. 92a-121a).

Jurisdiction

The judgment of the Court of Appeals was entered August

11, 1975. Petitions for rehearing were thereafter filed and on

September 16, 1975, the petitions were denied by the Court

of Appeals. (Joint Appendix, p. 1a.) The jurisdiction of this

Court is invoked pursuant to 28 U.S.C. §1254(1).

Constitutional Provision Involved

This case inve.ves the first section of the Fourteenth

Amendment to the Constitution of the United States, which

is set forth in the Joint Appendix, p. 283a.

Questions Presented

1. Did the courts below incorrectly follow the directions

of this Court in determining that petitioner School Dis-

trict’s conduct with respect to four schools in a system of

119 schools had sufficient effect, at the time of retrial more

than a decade later, to cause all of the racial imbalance now

existing in the other 115 schools in the system, thereby con-

stituting it a dual -vstem, and denying petitioners the oppor-

tunity to show that current ethnic imbalance, which arose

earlier in the “core city” part of the district, was not caused

by any segregative act of petitioners?

2. Is aschool district, found to be a dual school system

solely on the basis of acts of discrimination limited to four

schools at a time ten to fifteen years prior to such finding,

thereby required to reassign pupils throughout the entire

school district to achieve specified racial and ethnic balances

in the schools, to hire teachers with the goal of reaching ethnic

ratios that reflect pupil ethnic ratios, and to continue to re-

assign pupils to maintain the decreed ethnic ratios?

ee

3

Statement of the Case

Earlier History of the Case

This is an action brought in the names of several Denver

schoolchildren and their parents seeking orders declaring all

the racial and ethnic imbalance or segregation within the

schools in the Denver School District’ to have been un-

constitutionally created and maintained by the petitioner

School District, and for orders eliminating such segregation.

After hearing evidence for a total of i8 days in 1969 and

1970, the district judge found that several acts by the School

District in the early 1960s, during a period of massive racial

change in the neighborhood involved, tended to have segrega-

tive effect as to three elementary schools and one junior high

school, and ordered reassignment of pupils to reduce the

proportions of Negro* pupils in those four schools.* But as to

all the other racial and ethnic imbalance in the school sys-

tem complained of, chiefly in the “core city” area, the trial

judge found “no comprehensive policy” of segregation. 313

F. Supp. 76. As to what the plaintiffs call the two “pivotal

black schools in the core city area,”* the judge held that the

racial proportions were caused by housing patterns and not

by the School District. 313 F. Supp. at 75. The court similarly

exonerated the School District as to all other core city schools

brought into question.”

'The district is co-extensive with the City and County of Denver, embracing over

100 square miles, and served, in 1973-74, a total of 85,438 pupils in 120 schools.

Cf. 413 US. at 191, n. 2, and 192.

“The terms for the three principal ethnic groups — Negro, Hispano, and Anglo

— used earlier in this case (413 U.S. at 195, n. 6) are carried forward here.

“Minority” as used in this petition means Negro and Hispano combined.

8A summary of the procedural history is set forth at 413 U.S. at 194, n. 5.

‘Manual High School and Cole Junior High School (brief of Keyes, et al., peti-

tioners, in this Court in No. 71-507, p. 91), which, at time of trial, had Negro

pupil proportions of 60.2% and 72.1%, respectively.

Morey, Boulevard, and Columbine. See 313 F. Supp. at 75 & 76.

4

The case was in this posture, with four schools’ found to

have been affected by segregative acts and with remedy orders

in effect, when the case was reviewed by this Court on cer-

tiorari. Keyes v. School District No. 1, 413 U.S. 189 (1972).

In making the findings regarding the four schools in the

Park Hill area, the trial court described the several acts’

between 1960 and 1965 in terms of a “policy.” The policy

was held to have the purpose of isolating Negro pupils “first

in Barrett and later in Stedman and Hallett . . . in the face of

a steady influx of Negro families into the area” with the

“ultimate effect” of creating “segregated situations” at those

three schools and at Smiley. 303 F. Supp. at 294, 295.

In 1969 and prior to this suit the Board of Education

adopted pupil reassignment resolutions deemed designed to

improve racial balance in the four schools, but the resolu-

tions were rescinded before they were implemented and were

replaced by voluntary pupil transfer provisions. This act was

held by the trial judge to be an act of restoring and perpetua-

ting the segregation at those four schools. 303 F. Supp. at

295. On these findings, the trial court observed that the

“segregation policy” as to the four schools in Park Hill was

followed for nearly ten years prior to 1969. Id., at 287, 294.

The rescinded resolutions were also later found to be de-

signed to counteract racial transition in progress at a nearby

high school* and to decrease pupil-teacher ratios at Cole; in

both cases the trial court found that the rescission threatened

“Barrett, Stedman, and Hallett Elementary Schools, and Smiley Junior High

School.

7The acts consisted of construction in 1960 of an elementary school (Barrett) in

a neighborhood which had recently become predominantly Negro, boundary ad-

justments between elementary schools in 1962 and 1964 affecting Hallett and

Stedman Schools, the addition of pupil capacity at Hallett School in 1964 and

1965 by means of mobile classrooms and a building addition, and permitting the

proportion of Negro teachers at Barrett and Smiley to rise significantly above the

district-wide average in the early 1960s. 413 U.S. at 192; cf. 521 F.2d at 469,

Appendix, pp. 5a, 6a.

‘East High School.

5

to damage the quality of education and was for that reason

unconstitutional. 313 F. Supp. at 67.

The Court of Appeals expressly did not decide whether

the rescission of the racial balancing plans was an uncon-

stitutional act, having sustained the finding as to the earlier

acts affecting the four schools. 445 F. 2d at 1002. But upon

review by this Court, the respondents presented a tabulation’

which not only included the four schools found to have been

affected by segregative acts, but also East and Cole, where

the sole offending act was to cancel plans having educational

rather than desegregative effect, and Park Hiil and Philips

Elementary Schools which, with East, had been expressly

held not to be segregated schools. 303 F. Supp. at 292, 294,

and 313 F. Supp. at 67.

This tabulation, not part of any finding by courts below,

was adopted by the Court in the opinion by Mr. Justice Bren-

nan, which observed that the “segregation policy” of the

School District affected pupils in eight schools, rather than

four, and that the eight schools served a large proportion

(37.7% ) of the Negro pupils in the district. 413 U.S. at 199."

This observation, coupled with the trial judge’s description

of a policy extending over a ten-year period in the 1960's,

made it possible for this Court to suggest that the Denver

school system resembled one which has “carried out a

systematic program of segregation affecting a substantial

portion of the students, teachers, and facilities within the

school system.” Id., at 201. The Court then held that

in such a case, “there exists a predicate for a finding of the

existence of a dual school system.” Ibid. But such a finding,

if it was to be made, was to be a function of the trial court, and

the Court accordingly directed that on remand, “the District

"Brief of Keyes, et al., petitioners, in No. 77-507, p. 17.

'If the four schools found to be segregated by School District action are used

for comparison, the total minority pupil population of those schools was 8.9%

of the district-wide total.

6

Court should decide in the first instance whether respondent

School Board’s deliberate racial segregation policy with re-

spect to the Park Hill schools constitutes the entire Denver

school system a dual system.” 413 U.S. at 204.

The summary of the mandate went on to explain that “{i]f

the District Court determines, however, that the Denver

school system is not a dual school system by reason of the

Board’s actions in Park Hill, the court [then] will afford re-

spondent School Board the 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.” 413 U.S. at 213."

In reviewing this case, this Court thus concluded that

both lower courts had failed to apply the correct legal

standards in addressing the plaintiffs’ claims of deliberate

segregation in the core city schools, and vacated the judg-

ment of the Court of Appeals as to those schools and re-

manded the case to the district court for further proceedings

in the light of two legal standards announced. The standards

were both to be applied in cases where it is shown that a

school district has been found to have engaged in intentional

segregation affecting a substantial portion of the pupils in

the district.

The first standard is that such a showing forms a “predicate

for” and will “suffice to support a finding of” the existence

of a dual school system. 413 U.S. at 201, 203. The second

standard is that such a showing “creates a presumption that

other segregated schooling within the system is not adventi-

tious” (Id., at 208) and shifts the burden of proof to the

School District “of showing that their actions as to other

11In the summary of the mandate, the Court’s opinion also adds a preliminary

matter: The determination of whether there may be a physical or geographical

barrier confining the effect of the Park Hill acts to that area. The School District

had never urged that Park Hill was so separated, and did not urge the point at

the hearing following remand.

7

segregated schools within the system were not motivated by

segregative intent.” (Id., at 209) and that such actions did

not have segregative effect either at the time of the acts or at

the time of trial. Id., at 211.

The Proceedings on Remand: the Rulings of the District

Court.

(a) On extent of violation

Following remand to the district court, a hearing was held,

as directed, to determine, first, whether the School District's

actions with respect to the Park Hill schools in the 1960s

constituted the entire school system a dual system. The court

and the parties agreed that the School District would later

have the opportunity to show that its actions with respect to

the core city schools were free from segregative intent or that

the School District did not cause the existing ethnic imbal-

ance in those schools in the event that the court first deter-

mined that Denver is not a dual system. 368 F. Supp. at 209,

n. 2, Appendix, p. 276a.

At the hearing the School District took the position that the

test of whether the segregative acts with respect to the schools

in Park Hill made (or “constituted” ) the entire system a dual

system was one of cause and effect, and that the mechanism

of this cause and effect is what this Court had described as

reciprocal effect. 413 U.S. at 201, 202. This principle was

understood to mean that if a school district changes a school’s

attendance zone or builds a new school so as to concentrate

Negro pupils in that school, then, if no other variables are at

work, such acts would have the reciprocal and equal effect

of concentrating non-Negro pupils in nearby schools. The

same might happen as a result of actions having the effect

of earmarking a school by race. As thus formulated, there

is what amounts to a presumption, but a rebuttable presump-

tion, that there was a reciprocal segregative effect beyond the

schools affected by the segregative acts, and the burden of

8

showing lack of current reciprocal and extra-territorial ef-

fect rests, accordingly, with the School District where inten-

tional segregation has been shown.

With this view of the issue, the School District undertook

to present evidence as to each of the specific segregative acts

making up the “conduct in Park Hill’ to show that they did

not “have impact beyond the particular schools” (413 U.S.

at 203), had not “affected the racial composition of schools

throughout the District,” (id., at 204), and were con-

fined in their impact to the Park Hill area.

The evidence offered was limited, of course, to the several

acts in the 1960’s in Park Hill and to ethnic changes oc-

curring in schools outside that area from and after that time.

The School District offered a statistical study and the

opinion of a statistician to show that the building of Barrett

school in 1960 did not have any continuing segregative effect

in Park Hill or elsewhere in the School District. This evi- —

dence showed that the numbers and percentages of Anglo

pupils declined steadily in that part of the School District

outside of Park Hill during the years after 1960, despite

what the district judge had called “a steady influx of Negro

families in to the [Park Hill] area” during that same period.

303 F. Supp. at 295. From this trend contrary to the principle

of reciprocal effect, and from the uniform and steady pat-

tern of ethnic change, the expert concluded that the construc-

tion of Barrett School did not have the effect of intensifying

ethnic segregation outside of Park Hill. The expert reached

the same conclusion as to the rescission of unimplemented

racial balance resolutions at the other end of the decade in

1969.

As for the three boundary changes in 1964 found to have

confined Negro pupils at Stedman and Hallett, the School

District tendered very specific evidence which showed, the

parties agreed (Transcript, p. 346), that the change affect-

9

ing Stedman actually moved 24 pupils to the nearby school,

20 of whom were minority children, and that the change af-

fecting Hallett actually moved 13 pupils, all Negro, to the

nearby school. It had previously been shown (Transcript,

trial on merits, pp. 1500-1504) that the other change affect-

ing Hallett School actually moved 70 pupils to the nearby

school, 50 of whom were Negro pupils. Thus, all of these

_ boundary changes previously held to have intensified Negro

disproportions at Stedman and Hallett were shown to have

had the actual integrative effect of reducing white propor-

tions in the adjoining schools.

The School District also offered an exhibit (WV) which

illustrated, the parties agreed, thai percentages of Negro

pupils increased, rather than decreased, at the schools ad-

joining Stedman and Hallett in 1964 and in most cases at a

far faster rate than at the two schools held to have been

segregated by the boundary changes that year. Exhibit WV

was also offered with regard to the expansion of classroom

Capacity ‘at Hallett in 1964 and 1965; the exhibit showed

that percentages of Negro pupils at nearby schools were in-

creasing, in those years, more rapidly than at Hallett.

During the course of the hearing the district judge ap-

peared to exclude all of this evidence insofar as it was of-

fered to rebut the presumption that the actions in Park Hill

had segregative effect elsewhere in the School District. Thus,

the judge’s ruling as to the evidence offered by the statis-

tician was to “receive it only insofar [as] it might have some

probative value in showing the motivation of the Board .. .

[its] purposes in other parts of the city. That’s the only issue

we have before us.” (Transcript, p. 270) The evidence of-

fered to prove that the actions in 1964 and 1965 with respect

to Stedman and Hallett actually contributed to faster-rising

Negro enrollments in adjoining schools, the accuracy of

which was agreed upon, was also excluded as irrelevant for

10

the sole reason that the adjoining schools were not outside

Park Hiil (Transcript, p. 341)

Finally, the district court excluded evidence offered to

show that in 1973, at time of hearing, the Denver system

currently bore none of the indicia of a dual system, that it was

then being operated as a racially non-discriminatory school

system. The judge ruled that the evidence “is not material

... | cannot take into account his appraisal of the system as

it exists now.” (Transcript, pp. 358-360)

Following the hearing, the district court, ina memorandum

opinion (368 F. Supp. at 207, Appendix, pp. 270a-282a)

held and concluded “that the Denver system is a dual system

within the Supreme Court’s definitions.” Id., at 210, Appen-

dix, p. 282a. The first two-thirds of the opinion is given over

to a discussion of the burden-shifting branch of the Supreme

Court’s opinion, which has not yet been reached in this case,

and to the possibility of geographical or physical separateness

of Park Hill, which was not an issue. The district court then

addresses the issue to be determined. Id., at 209, Appendix, p.

277a. In discussing this issue — whether the School District

had shown that the Park Hill acts did not have segregative ef-

fect in schools elsewhere — the judge stated (1) that all of

the School District’s tendered evidence had been considered

(despite exclusionary rulings to the contrary), (2) that the

evidence was intended to show that ethnic imbalance outside

Park Hill was “in no way the product of any acts or omissions

by” the School District (emphasis added), and (3) that this

evidence was not sufficient to make the required showing.

Ibid., Appendix, pp. 280a, 281a. The district court also men-

tioned the plaintiffs’ evidence on the preliminary matter of

the separateness of Park Hill, and referred to the presumption

of system-wide intent which was not involved in the duality

issue. The district court then stated that this Court had con-

11

Clusively determined that Denver was a dual system, making

the trial court’s conclusion “inescapable.” Ibid., Appendix,

p. 282a.

(b) On Further Remedy

Further hearings were then held to determine the form of

remedy for the constitutional violation found to exist, and

these determinations were set forth in a memorandum order

and opinion dated April 8, 1974.’* This order, and the

previous order of December 1 1, 1973, were then incorporated

in a final judgment entered April 17, 1974.

At the request of the district court, the parties'* submitted

plans for the conversion of the “dual system” to a racially

nondiscriminatory school system. After hearings, the plans

of both principal parties were found unacceptable, the plain-

tiffs’ because of excessive busing, and the School District’s

because not enough busing was used. The district court then

requested a plan from an educational consultant selected by

the court, and his plan was adopted by the court after further

hearings.

The district court’s plan postulated that where Negro and

Hispano pupils made up more than 60% (40%-50% at the

secondary school level) or less than 30% of a particular

school’s enrollment, such a school was “segregated or . . .

nonintegrated”"* as the product of the School District’s prior

action,” and therefore required correction by pupil reassign-

ment. The reassignment plan changed the attendance areas

of every school in the system. It required that 25% of the dis-

'2Reopened and amended in minor particulars, April 24, 1974.

15Who now included numerous intervenors, including Congress of Hispanic Edu-

cators, an association of Spanish-surnamed teachers, joined by a number of

Spanish-surnamed pupils and their parents.

14380 F. Supp. at 686, Appendix, p. 17 1a.

15Necessarily those in the Park Hill area in the 1960s.

12

trict’s pupils be bused to schools in distant neighborhoods."®

Minimum percentages for Anglo pupils were fixed by the

court for Manual high school (56% ) (380 F. Supp. at 726,

Appendix, p. 268a), and for Morey and Cole junior high

schools (50% and 60% ) (Appendix, p. 96a).

The projected result of this plan was to bring the minority

pupil percentages within the specified limits, except in five

elementary schools in predominantly Hispano neighbor-

hoods,’ (Appendix, p. 107a) and the pupil population at

those five schools remained predominantly Hispano. Eigh-

teen other elementary schools with minority enrollments ex-

ceeding 60% were paired with other predominantly non-

minority schools for half day attendance there.

In addition to provisions for periodic reporting, ethnically

balanced school assignment of teaching and administrative

staff, and monitoring of compliance, the district court’s final

decree also included orders regulating the hiring, promotion,

retention, and dismissal of teachers, staff, and administrators.

The court directed the implementation of a program for the

hiring of minority personnel with a goal, on a date to be fixed,

of ratios of Negro and Hispano personnel which would “re-

flect more truly” the ratios among the pupils in the schools.

Appendix, pp. 116a, 117a. However, there had been no issue

raised, no evidence presented, and no findings made that the

School District ever engaged in discriminatory hiring prac-

tices.

The Appeals; the Rulings of the Court of Appeals.

Appeals were taken to the Court of Appeals by both

principal parties and by Congress of Hispanic Educators.

The Court of Appeals, in an opinion by Chief Judge Lewis,

16Some busing is necessary in Denver under its neighborhood assignment plan, but

a much smaller number of pupils would be involved, excluding pupils making

use of the majority-to-minority transfer plan and those bused under the Park Hill

remedy orders, than the 14,500 figure mentioned by the trial judge (380 F. Supp.

at 686, Appendix p. 167a.)

17This exception was made in order to implement a pilot program of bilingual-

bicultural education at four of the schools.

13

affirmed the District Court’s holding and conclusion that the

Denver system is a dual school system, and affirmed in part

and reversed in part the district court’s orders relating to the

desegregation of the system.

Judge Lewis’ opinion, while holding that the School Dis-

trict’s evidence of lack of extra-territorial effect of the Park

Hill acts are relevant (521 F.2d at 471, Appendix, p. 15a),

limited such relevance to the preliminary and undispositive

issue’* of “whether Park Hill is a ‘separate, identifiable, and

unrelated unit’ within the district” (Id., at 472, Appendix, p.

16a).

Further, Judge Lewis’ opinion also interprets the District

Court’s memorandum opinion to mean that the expert testi-

mony and statistical evidence regarding Barrett School was

fully considered on the issue, as framed by the trial judge, of

whether “segregated conditions . . . outside the Park Hill

area are wholly the product of external factors such as demo-

graphic trends and housing patterns, and are in no way the

product of any acts or omissions by defendants.” (Emphasis

supplied) (Id., at 473, Appendix, p. 21a)"

Finally, on the question of whether the Denver system is a

dual system, both Judge Seth (Id., at 487, Appendix, p. 76a)

and Judge Barrett (Id., at 489, Appendix, p. 84a) rested

their concurrences on a holding that the Supreme Court it-

self held that Denver was a dual system, making the District

Court’s conclusion “inescapable,” and leaving no opportunity

for a contrary finding. As we point out in stating the reasons

for granting the writ, this means that a majority of the court

held, in effect, that Denver is a dual system because the Su-

Judge Seth aptly called it a “non-issue” (521 F.2d at 488, Appendix, p. 81a.)

19As we point out in stating the reasons for granting the writ, this was not the

issue to be heard because the School District, at that hearing, was obligated only

to exclude the Park Hill acts as factors in causing ethnic imbalance elsewhere

in the system. Cf. Judge Lewis’ later and, we submit, correct formulation of the

. School authorities’ burden: “to prove the absence of any causal relation between

those acts [i.e., the Park Hill acts] and current levels of racial segregation.” 521

F.2d at 474, Appendix, p. 25a.

14

preme Court conclusively found it to be so. Moreover, both

concurring judges confused the burden-shifting part of the re-

mand (Part Iil) with the duality question (Part Il). Judge

Barrett observed that it was “impossible” for the School Dis-

trict to meet the burden of showing that its actions “as to be

‘segregated schools’ . . . outside the Park Hill area were not

likewise motivated by a segregative intent.” (521 F.2d at 489,

Appendix, pp. 84a, 85a). Judge Seth understood that the trial

court, following the Supreme Court’s directions, reversed the

time sequence and “related back in time [the Park Hill acts]

to show intent” at the earlier time when the segregation in the

core city developed. (Id., at 488, Appendix, p. 78a) But

the presumption of similar intent is the basis for the burden-

shifting rule explained in Part III (413 U.S. at 207, 208),

which was not involved in the hearing on duality.

As for the district court’s remedial orders for the elimina-

tion of effects of prior acts of segregation and for the estab-

lishment of an ethnically nondiscriminatory school system,

the Court of Appeals affirmed the system-wide reassignment

of pupils to achieve ethnic ratios within prescribed ranges.

But the appellate court reversed and remanded those parts of

the pupil assignment plan which involved half day reassign-

ment and directed that further hearings be held regarding the

five predominantly Hispano schools.

The Court of Appeals also reversed and vacated the edu-

cational policy portions of the district court’s order calling

for the installation of a form of bilingual-bicultural program

on a pilot basis at several schools and directing the consolida-

tion of two high schools on a campus basis. But the Court of

Appeals viewed the minority teacher recruitment program,

with its goal a minority teacher ratio close to the district’s

minority pupil ratio, as a measure “to ensure faculty desegre-

gation” rather than a remedy for discriminatory hiring and

affirmed the order in that regard, without mentioning the

absence of findings of any unlawful hiring practices.

15

REASONS FOR GRANTING THE WRIT

I.

Certiorari should be granted to resolye questions of in-

terpreting and applying this Court’s standard for determining

the existence of a dual school system, where the basis for such

determination is the prior — and since remedied — existence

of state-imposed segregation as to a substantial portion of

that system.

This case illustrates the need for more explicit guidance

to district courts dealing with claims that prior segregative

acts of a school district, limited in time and place and there-

after remedied, have current and system-wide effect on ethnic

proportions in schools where pupil assignment is on a neigh-

borhood basis.

The Denver School District is ready to show, under the

terms of Part III*’ of this Court’s opinion governing this case,

that the racial and ethnic imbalance existing in the Denver

schools is not the result of any discriminatory acts of the

School District.*. The School District seeks the chance to

show, this time with the burden of proof*™, that, as the trial

judge put it following the original trial on the merits in 1970,

“(t]he impact of housing patterns and neighborhood popula-

tion movement stand out as the actual culprit.” 313 F. Supp.

at 75.”

Standing in the way of this opportunity is the district

court’s conclusion, following hearing on remand from this

Court and applying the standard set forth in Part II** of the

court’s opinion, that “the Denver system is a dual system

20413 US. at 205-214.

21The discrimination found to have affected the four Park Hill schools had been

long since fully remedied.

“1“This opportunity is expressly given to petitioners (413 U.S. at 211, 214). Cf.

United States vy. School District of Omaha, 521 F.2d 530 (1975), cert. den.

U.S. , (November 11, 1975).

*22As Judge Seth observed, the allegations of unconstitutional acts were fully

litigated in the original trial and “[t]he trial court expressly found that no such

acts Or improper intent existed at any prior time.” 521 F.2d at 489, Appendix at

p. 78a.

23413 U.S. at 198-250.

16

within the Supreme Court’s definition.” 368 F. Supp. at 210;

Appendix p. 282a. The direction from this Court, in that

branch of the case, was to

“determine whether respondent School Board’s

conduct over almost a decade after 1960 in carry-

ing out a policy of deliberate racial segregation in

the Park Hill schools constitutes the entire school

system a dual system.” 413 U.S. at 213.

This test, as a preliminary hurdle to permitting the School

District to clear itself of fault for the ethnic imbalance in the

core city schools, was, we submit, misunderstood and wrongly

applied by the courts below.*' Only this Court can now cor-

rect the holdings below and give the School District its op-

portunity to meet the burden of proof as required by Part III.

In this case, we submit, the district court held the school

district to proof of far more than the absence of a causal

connection between the Park Hill acts in the 1960’s and the

current ethnic proportions in all of Denver’s schools today.

As the Court of Appeals found, “the trial court experienced

difficulty in interpreting the Supreme Court’s opinion.” 521

F.2d at 472, Appendix p. 19a. This difficulty involved the

persistent confusion of the court’s task under Part II of this

Court’s opinion governing this case, with Part III of the

opinion.

Specifically, the district court, throughout its evidentiary

rulings and its memorandum opinion on the issue, referred

to the presumption of system-wide segregative intent, which

is the basis for the burden-shifting rule announced in Part

III, and, in the end, required the school district to show that

ethnic imbalance outside Park Hill is “in no way the product

of any acts or omissions by” the school district. (emphasis

added) 368 F. Supp. at 210, Appendix p. 281a. But this is

“'The test itself was disapproved by two members of the Court (Mr. Justice

Powell, 413 U.S. at 224. and Mr. Justice Rehnquist, Id., at 264), and may not

have been aprroved by a third (Mr. Chief Justice Burger, who concurred in the

result, Id., at 214).

17

the showing to be made under Part III, where the school dis-

trict must show that “other segregated schools within the sys-

tem are not also the result of [any] intentionally segregative

actions.” 413 U.S. at 208. The showing required under the

Part II duality test is much narrower: it is limited to showing

that the specific segregative acts in Park Hill in the 1960's

were not the cause of the current ethnic imbalance through-

out the school district.

Chief Judge Lewis, for the Court of Appeals, while gen-

erally successful in addressing the issue framed by Part II,*°

nevertheless ultimately adopted the same overbroad require-

ment of proof imposed by the trial court. 521 F.2d at 473,

Appendix p. 21a.

The other two members of the Court of Appeals panel, who

concurred in this part of Judge Lewis’ opinion, appeared to

do so for reasons which go beyond the appellate court’s opin-

ion and which further illustrate the need for more explicit

guidance to lower courts on the application of the standard

here involved. As explained in the Statement of the Case

(p. 13, supra), both concurring judges adopt the district

court’s view that the presumption of duality was conclusive

and irrebuttable, and also bring in the system-wide presump-

tion of intent related to the other branch of the case.

The result of these rulings is that both courts below, by

requiring the school district to meet the far broader and more

comprehensive burden under Part III, measured the school

district’s evidence, which was directed to show the lack of

extra-territorial effect of specific acts during a specific period

of time, against the wrong standard. Petitioner school dis-

trict has thus been deprived of its opportunity to show that

its prior actions with regard to all other schools in the system

during the relevant past have been free from segregative in-

2“the relationship between the Board's segregative acts during the 1960s and

current racial conditions . . . Under the terms of the Supreme Court's remand,

this was the sole issue for trial.” 521 F.2d at 475, Appendix p. 27a, and see n.

19, supra.

18

tent or current segregative effect — in short, deprived of the

chance to show that petitioners are now in fact operating a

unitary system, free from discrimination or the effects of any

prior discrimination.

This opportunity is, of course, important to petitioners.

The importance goes beyond freedom from intervention in

the management of the school system by the judicial branch.

Of the seven members of the Denver school board, three in-

cluding its president and vice president, are members of

minority ethnic groups. A majority of the pupils in Denver’s

elementary schools are now minority group members, and a

similar situation is near at the secondary school level. If,

given the chance, the Denver school district shows that it

did not cause the ethnic imbalance in its schools, there is

every reason to expect that the system will continue to be

managed free from discrimination. Calhoun and Armour vy.

Cook, No. 74-2784, Sth Cir., October 23, 1975. Attached

Appendix, at p. 3aa.

II

Certiorari should be granted to resolve questions inherent

in applying standards developed for disestablishing pure dual

school systems (separate schools for each race) to the dis-

establishment of a constructive dual system (where pupils

were never excluded on account of race and where races are

mixed in all schools) implied in law from the prior existence

of state-imposed segregation in a substantial portion of the

system.

This Court has, until now, considered the duties of school

authorities and the powers of federal courts in eliminating

dual school systems and establishing unitary systems only in

the context of school districts maintaining two sets of schools,

one for white pupils and one for Negro pupils within a single

school system. Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1, at5 & 6 (1971); Alexander v. Holmes

19

County Board of Education, 396 U.S. at 19 (1969) .* In such

a school system it was not unreasonable to postulate that all

racial imbalance was the consequence of the state-enforced

separation of races, and that, accordingly, in such “state-

compelled dual systems” (Green v. County School Board of

New Kent County, 391 U.S. 430 (1968) ) the undoing of the

effects of the complete separation of the races would require,

as a starting point, “the greatest possible degree of actual

desegregation”. Swann, supra., at 26.

But where, as in Denver, the dual nature of the system is

derived from the presumed system-wide effects of a limited

number of segregative acts affecting four schools in a limited

time period ending nearly ten years before retrial, the “dual

system” resulting must logically be different from the kind of

dual system previously considered by the Court. In other

words, if Denver’s is a dual system, it is a dual system with a

difference.

The most important difference is that the ethnic imbalance

in the Denver system existing prior to the segregative acts in

Park Hill, whose effects render the system a dual system,

cannot possibly have been caused by the acts in Park Hill.*‘

Causes inherently can only have prospective effects.

This means that only that segregation which developed in

the Denver school system during (and possibly after) the

1960’s, when the Park Hill acts occurred, can be attributed

to the School District and considered as part of the dual

nature of the system. The plaintiffs, in attacking the School

26Milliken v. Bradley, 418 U.S. at 217, although dealing with a school district

found to be segregated throughout the system by deliberate actions of the school

authorities, dealt with the validity of a cross-district remedy, rather than a single

district remedy. And the previous decision of this Court in this case (413 U.S.

189) addressed the question of violation, not remedy. Id., at 198.

“*Circuit Judge Seth noted the problem of retroactive consequences of the Park

Hill acts, but he discusses it in the context of the burden-shifting branch of the

case (Part III) which imputes segregative intent backward in time. He noted, sig-

nificantly, that “all the time problems were not . . . resolved.” (521 F.2d at 488,

Appendix at p. 78a) and voted to remand for a complete reconsideration of the

remedy.

20

District’s evidence offered to prove the lack of exira-terri-

torial effect of the Park Hill acts, recognized this temporal

limitation of the effect of those acts, and sought to show that

other factors at work, after 1960, extended the effects of the

building of Barrett Elementary School that year outside

Park Hill. Appendix at p. 17a, 18a.

The implications of this difference in fashioning a remedy

for Denver’s particular kind of dual system were ignored by

the District Court in rejecting the School District’s remedy

plan and developing its own plan. Yet, this Court has clearly

stated that “the nature of the violation determines the scope

of the remedy” (Swann, supra. at 16) and that “the scope

of the remedy is determined by the nature and extent of the

... Violation.” Milliken v. Bradley, supra. at p. 744. It follows

that the remedy in Denver’s case, while system-wide and not

limited to the Park Hill area, is limited to those schools in the

system which were affected by the acts in Park Hill in the

1960's. The School District would have the burden of show-

ing, in the remedy phase of the case, which schools were un-

affected by the acts in Park Hill in the 1960’s.~ And the con-

cern of the Court of Appeals in that regard (521 F.2d at 476,

Appendix at p. 34a) is misplaced. Thus, the School District

may. but need not, as a constitutional matter, remedy such

ethnic imbalance as existed prior to 1960 and which was not

intensified by the presumed system-wide effects of the Park

Hill acts after that year.

This is entirely in harmony with the directions of this

Court regarding the remedial duties of the School District in

the event the system is determined to be a dual system. In

such event,

“As in cases involving statutory dual systems, the

School authorities have an affirmative duty ‘to

“*Analogous to the burden of school districts operating statutory dual systems in

justifying the continued existence of predominately minority schools. Swann,

supra. at 26.

21

effectuate a transition to a racially non-discrimi-

natory school system’” [Brown II, 340 U.S. at

301] 413 U.S. at 203 (emphasis added)

This duty was stated in essentially the same terms thirteen

years after Brown II in Green, supra., at 438, as an

“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.” (emphasis added)

When the duty of the Denver school authorities was re-

stated in the summary of the mandate in this case (413 US.

at 213) the reference to the “root and branch” requirement

in Green equates the duty to “desegregate the entire system”

with the familiar duty to “eliminate racial discrimination”

root and branch.” Of course, the continuing effects or ves-

tiges of prior discrimination must be eliminated, as well as

active current discrimination, and where all racial segrega-

tion is the result of prior complete separation of race by law,

“the greatest possible degree of actual desegregation” will be

required. Swann, supra. at 26. But that is quite different from

applying, as the District Court did in this case, a percentage

test to the ethnic composition of every school in the system,

without regard to the nature of the school’s ethnic composi-

tion prior to 1960, when segregative acts first occurred. As

Judge Seth put it in urging reversal of the entire remedy order

in this case,

“However, where as here, the unconstitutional acts

are Clearly identifiable, are specific, and are limited

in time and scope, it would appear that the remedy

can be more effective if it is related to the specific

“°The Court of Appeals for the Fifth Circuit (Wisdom, Thornberry, and Clark,

JJ) understands that it is the elimination of discrimination (and its effects),

rather than racial balance, which is the aim of the Fourteenth Amendment. Cal-

houn and Armour v. Cook, Attached Appendix, at p. 4aa.

22

wrongs rather than to what is right as well as what

was wrong. Any remedy must zero in on the viola-

tion if it is to be effective and responsive. It was

error, in my opinion, for the trial court to apply the

mechanical or computer mix recommended by Dr.

Finger.” (521 F.2d at 488, 489, Appendix at pp.

8la, 82a).

Ill

Certiorari should be granted to correct other departures,

by the courts below, from this Court’s requirement that the

remedy for state imposed school segregation be limited by

the nature and extent of such segregation, where those courts

have ordered ethnic quotas for teacher hiring and continued

reassignment of pupils to maintain decreed ethnic ratios.

This case presents a plain illustration of how judicial au-

thority can improperly enter the area of the plenary powers

of school authorities, when care is not taken to examine the

nature of the violation. Swann, supra, p. 16.

With regard to teachers, school districts can violate their

Fourteenth Amendment rights by racial discrimination in

hiring or assigning them to schools. School districts can also

discriminate against pupils by racially earmarking schools

through racially-based assignments of teachers. These are

three separate and distinct kinds of violation.

In this case, the practice, prior to 1964, of assigning Negro

teachers to schools with substantial numbers of Negro pupils”

was held to have the effect of tending to earmark two of the

four segregated schools. 303 F. Supp. at 290, 294. That find-

ing was made at the very outset of this case, and at no time

since then, until the formulation of the present decree, was

the trial judge asked to make orders regarding the assign-

ment of teachers. See Higgins v. Board of Education of City

‘“’LUnder the now-outmoded educational theory of the day. 445 F. 2d and 1007;

cf. 303 F. Supp. at 284.

23

of Grand Rapids, 508 F. 2d at 783, n. 3 (6th Cir. 1974) And

there was never any claim in this case that Denver practiced

racial discrimination in hiring teachers; the only evidence on

this point was to the contrary, that Denver has for years made

special efforts to seek out and hire minority teachers; and

there are no findings in this case of hiring discrimination.

Yet the district court ordered the School District to hire

minority teachers on a priority basis with the goal of teacher

ratios “more truly” reflecting the ratios of minority pupils in

the schools, and attached conditions regarding reporting and

justification. Appendix, pp. 1 16a-118a. But where the viola-

tion is pupil segregation by school earmarking, the only

remedy required is to prohibit the earmarking and order

the uniform proportionate assignment of teachers by race,

throughout the system.

Nevertheless, the Court of Appeals included the affirma-

tive hiring order among the desegregation measures (521

F.2d at 484, Appendix, pp. 63a, 64a) and approved them.

In the absence of a finding of discrimination in hiring, the

order in that regard exceeds the powers of the courts below.

Finally, the district court imposed on the School District

“a duty to control the assignment of pupils so as to prevent

any school from becoming racially identifiable as a segre-

gated school.” (Appendix, p. 100a)

Denver is not a demographically static community. The

total numbers of pupils and percentages by ethnicity in the

Denver system, at the time this suit was commenced, at the

time the remedy order under discussion was entered, and

today are as follows (413 U.S. at 195, n. 6; Defendants’ Ex-

hibit YI):

9/69 9/73 9/75

Negro 14.1% 17.6% 19.1%

Hispano 20.2% 24.1% 27.2%

Anglo 65.7% 57.1% 50.7%

Total pupils 96,580 85,438 76,503

24

If the decree now in effect and being carried out establishes

a unitary system, then the order to make periodic adjustments

in the racial composition of the schools, in the absence of

deliberate altering of such composition by an agency of the

State, goes beyond the remedial powers of the court (Swann,

supra, at 32.), and the order should be qualified accordingly.

(See Spangler v. Pasadena City Board of Education, 375 F.

Supp. 1304 (1974), cert. granted sub. nom. Pasadena City

Board of Education v. “pangler, No. 75-164, November 11,

1975.)

CONCLUSION

WHEREFORE, petitioners respectfully pray that a writ

of certiorari be granted.

Respectfully submitted,

William K. Ris Thomas E. Creighton

1140 Denver Club Building Michael H. Jackson

Denver, Colorado 80202 Benjamin L. Craig

1415 Security Life Building

Denver, Colorado 80202

Attorneys for Petitioners

laa

Attached Appendix

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 74-2784

VIVIAN CALHOUN, et al,

Plaintiffs-A ppellants

EMMA ARMOUR, et al,

Intervenor-A ppellants

Ep S. Cook, et al,

Defendants-A ppellees

On Appeal from the United States District Court for

the Northern District of Georgia

(October 23, 1975)

Before WisDOM, THORNBERRY and CLARK, Circuit Judges:

CLARK, Circuit Judge:

Since 1958 when this school desegregtaion suit was filed,

the winds of legal effort have driven wave after wave of

judicial rhetoric against the patrons of the Atlanta public

school system. Today hindsight highlights the resulting

erosion, revealing that every judicial design for achieving

racial desegregation in this system has failed. A totally

segregated system which contained 115,000 pupils in 1958

has mutated to a substantiaily segregated system serving only

80,000 students today. A system with a 70% white pupil

majority when the litigation began has now become a district

in which more than 85% of the students are black. Notwith-

standing the lack of success in integrating these classrooms,

our task is to test whether the plan approved for district

2aa

operation realistically promises effective protection now for

the right of the pupils to a nondiscriminatory education.

Almost predictably, changing circumstances during these

years of litigation have dissolved the initial unity of the plain-

tiffs’ position. This is most graphically demonstrated by the

fact that the instant appeal is taken frum a district court

order which adopts a plan developed and agreed to between

a substantial number of locally represented black plaintiffs

and the school district’s officials, the present majority of

whom are black. The moving force behind the present appeal,

the original counsel for the plaintiff class, emphasize that the

plan approved and implemented by the district court was and

still is objected to by them as constitutionally inadequate.

They urge that reasonably available techniques to achieve

further school desegregation, particularly the transportation,

zoning and pairing of white students into predominantly

black schools, have not been utilized. Finally, they emphasize

such desegregation as has been accomplished under the plan

approved has been effected entirely by the transportation of

black pupils to predominantly white schools.

The district has been operated under the plan in question

for the past two years. Its principal objective — to achieve

at least 30% black enrollment in every majority white school

in the system — has been substantially met. The plan also

achieved a goal of strengthening a program to encourage

voluntary transfers by pupils of the majority race group in

any school into any other school in which their race was in

the minority. However, the flow in this transfer program has

been only from black to white schools. The plan’s success in

these achievements has had little effect on the all, or sub-

stantially all, black schools. Out of 148 schools in the city

system, Atlanta still operates 92 schools with student bodies

which are over 90% black.

Following a suggestion initially advanced by the district

court in July, 1971 (332 F.Supp. at 809), a separate action

3aa

was brought before a three judge district court styled Armour

v. Nix, (Civil Action No, 16708, D.C., N.D.Ga.). It seeks

to combine or consolidate the Atlanta school system with the

public educational facilities in neighboring communities.

The order presently on appeal reserved any ruling on the

question of such consolidation pending the outcome of the

three judge action and notes that “all matters pertaining to

the metropolitan school systems have been severed from this

proceeding and are reserved for further resolution in Ar-

mour.”

The district-court found the plan submitted by the parties

to be constitutionally realistic and viable for the Atlanta

school district, and to accord with the prior directives of this

court in this case. It therefore adjudicated that “the Atlanta

school district was unitary and has purged itself of all vestiges

of the formerly state imposed dual system”. Appellants urge

that existing precedent will not allow us to affirm this ad-

judication of unitary status to a school district which has

never utilized non-contiguous pairing, has never bussed white

children into predominant black schools and in which over

60% of its schools are all — or substantially all — black.

These contentions appear to be supported by substantial prec-

edent. However for today and in Atlanta, the unique features

of this district distinguish every prior school case pronounce-

ment. The district court found that the black citizens who

occupy the majority of the posts on the school board, in two-

thirds of the posts in the school administration and staff and

in over 60% of the faculty, as well as the numerous non-

appealing black plaintiffs who agreed to and support the

present plan attest the district’s lack of discrimination against

black students as well as its freedom from the effects of past

race-based practices. The district court also found that At-

lanta’s remaining one-race schools are the product of its

preponderant majority of black pupils rather than a vestige

of past segregation. These findings are not clearly erroneous.

4aa

The aim of the Fourteenth Amendment guarantee of equal

protection on which this litigation is based is to assure that

state supported educational opportunity is afforded without

regard to race; it is not to achieve racial integration in public

schools. See Milliken v. Bradley, 418 U.S. 717, ...., 94

S.Ct. 3112, 3125, 41 L.Ed.2d 1069, .... (1974); Alexan-

der v. Holmes County Board of Education, 396 U.S. 19, 20,

90 S.Ct. 29, 29-30, 24 L.Ed.2d 19, 21 (1969); Brown .-.

Board of Education, 349 U.S. 294, 301, 75 S.Ct. 753, 756,

99 L.Ed. 1083 (1955). Conditions in most school districts

have frequently caused courts to treat these aims as identical.

In Atlanta, where white students now comprise a small mi-

nority and black citizens can control school policy, ad-

ministration and staffing, they no longer are. See Swann v.

Charlotte-Mecklenburg Board of Education (Part V), 402

U.S. at 22, 91 S.Ct. at 1279, 28 L.Ed.2d at .... (1971).

Plaintiff-appellants criticize the Majority to Minority

Transfer Plan which the district court ordered implemented

because the movement involved is entirely by black students.

However, participation in this program is solely on a volun-

tary basis. In ultimate analysis it requires no more or less

from pupils than the standard majority to minority provision

which we have traditionally required be incorporated in all

school desegregation orders in this circuit. See, e.g., Ellis v.

Board of Public Instruction, 423 F.2d 606 (Sth Cir. 1970).

Atlanta, “The City too busy to hate,” has developed the

reputation of being a community of racial and social good-

will dedicated to effective progress in both its business and

social conduct. Many intangibles we cannot now predict may

have a beneficial effect in the future on the degree of racial

integration in this system, but these possibilities are not the

basis for our affirmance. Rather, we refuse to disturb the

district court’s approval of the plan submitted for the present

operation of this school district, because based on live, pres-

Saa

ent reality it is free of racial discrimination and it wears no

proscribed badge of the past. See Bradley v. School Board of

City of Richmond, Virginia, 462, F.2d 1058 (1972) (en

banc), affirmed by equally divided court, 412 U.S. 92

(1973); Spencer v. Kugler, 326 F.Supp. 1235 (D.N.J.

1971), affirmed in memorandum decision, 404 U.S. 1027,

92 S.Ct. 707, 30 L.Ed.2d 723 (1972).

Thus, we affirm the court’s action in approving and direct-

ing implementation of the present plan for the operation of

the district and the related requirements for filing semi-an-

nual reports and for the strengthening of the functioning of

the Bi-Racial Committee. However, discretion clearly indi-

cates that the termination of this litigation should await the

final determination of the metropolitan area issues pending in

Armour v. Nix. Therefore, the district court must retain jur-

isdiction of this cause at least until that consolidated cause

has been finalized.

AFFIRMED