Opposition Brief — School District No. 1 v. Keyes

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No. 89-1698 MAY 29 ne

mg RG itbintiant ANION, JRE

tT ae

Supreme Court of the Gnited States

OCTOBER TERM, 1989

ScHOOL District No. 1, DENVER, COLORADO,

Petitioner,

Vv.

WILFRED KEYES, et al.,

On Petition For Writ of Certiorari

To the United States Court of Appeals

For the Tenth Circuit

BRIEF IN OPPOSITION TO CERTIORARI

ANTONIA HERNANDEZ *GORDON G. GREINER

E. RICHARD LARSON HOLLAND & HART

Norma V. CANTU P.O. Box 8749

MALDEF Denver CO 80201

140 E. Houston St. (308) 295-8235

Suite 300

JuLIus L. CHAMBERS

CHARLES S. RALSTON

NORMAN J. CHACHKIN

San Antonio TX 78205

(512) 224-5476

PETER Roos 99 Hudson Street

M.E.T.A., Inc. New York NY 10013

524 Union St. (212) 219-1900

San Francisco CA 94133

(415) 398-1977 JAMES M. Naprirt III

7211 16th St. N.W.

Washington DC 20012

*Counsel of Record (202) 723-5916

Counsel for Respondents

PRESS OF BYRON 8. ADAMS, WASHINGTON, D.C. (202) 347-8203

RESTATED QUESTION PRESENTED

Whether, where a school district has failed to

completely desegregate, the trial court properly exercised

its discretion by retaining jurisdiction while relaxing

supervision under an Interim Decree, which enjoined the

Board to achieve integration under this Court’s Swann

principles without mandating any detailed pupil

assignment plan.

TABLE OF CONTENTS

Page

Restated Question Presented ; i

Table of Authorities iv

Statement 1

REASONS FOR DENYING THE WRIT .. 15

I. CERTIORARI SHOULD BE DENIED

BECAUSE THE PETITION PRESENTS

NO CONFLICT WITH EITHER THE

DECISIONS OF THIS COURT OR OF ~

OTHER COURTS OF APPEALS ....... 15

A. Some Of The Questions Presented

Are Premised Upon Assumptions

Which Are Directly Contradicted By

The Findings Of Both Courts Below .. 15

1. In Denver The Transition From A

Dual System Is Not Complete ....... 15

a. The remedial plan in Denver has

been accomplished through a

series of interim amendments to

the 1974 decree - 15

Il.

TABLE OF CONTENTS (continued)

b. The school authorities have

disobeyed the injunction as to

both pupil assignment and faculty

integration and have resegregated

schools which were previously

integrated

c. The asserted conflicts do not exist

2. The District Court’s Temporary

Replacement Of The 1974-76 Decree

With The Interim Decree Was Not

Premised On The Unitary Status Of

The District

B. The Issues Purportedly Raised In

Questions 3 And 4 Are Not Pre-

sented By This Case, Whose Actual

Remedial Processes Conflict With

No Other Precedents

CERTIORARI SHOULD NOT BE

GRANTED TO REVIEW THE

INTERIM INJUNCTION WHICH

CONFLICTS WITH NO OTHER

JUDICIAL DECISION

Page

TABLE OF CONTENTS (continued)

Page

Ill. THE DENIAL OF THIS WRIT

SHOULD NOT BE DEFERRED

PENDING THE OUTCOME IN THE

OKLAHOMA CITY SCHOOL CASE .. 39

A. Contrary To Petitioner’s Assertion

There Is No Relationship Between

The Issues Accepted For Review In

Oklahoma City And The Proceedings

Below In Denver 39

B. The Denial Of Certiorari Should

Not Be Delayed 42

Conclusion 44

Table of Authorities

Cases:

Board of Education of Oklahoma City v.

Dowell, No. 89-1080, 58 U.S.L.W. 3610

(U.S. March 27, 1990) 38, 40, 41, 42,

Brown v. Board of Educ., 349 U.S. 294 -

(1955)(Brown II) 34

Table of Authorities (continued)

Dayton Board of Educ. v. Brinkman, 443

US. 526 (1979)(Dayton IT)

Dowell v. Board of Educ. of Oklahoma City

Public Schools, 890 F.2d 1483 (10th Cir.

1989), cert. granted, 58 U.S.L.W. 3610

(U.S. March 27, 1990), No. 89-1080 ......

Dowell v. Board of Educ. of Oklahoma City,

338 F. Supp. 1256 (W.D. Okla.), affd,

465 F.2d 1012 (10th Cir.), cert. denied,

409 U.S. 1041 (1972)

Keyes v. School Dist. No. 1, Denver, 423

U.S. 1066 (1975)

Keyes v. School Dist. No. 1, Denver, 413

US. 189 (1973)

Keyes v. School Dist. No. 1, Denver, 521

F.2d 465 (10th Cir. 1975)

Keyes v. School Dist. No. 1, Denver, 670

F. Supp. 1513 (D. Colo. 1987) 2.00

Keyes v. School Dist. No. 1, Denver, 653

F. Supp. 1536 (D. Colo. 1987) .......sss0

Page

39, 40

39n

Table of Authorities (continued)

Page

Keyes v. School Dist. No. 1, Denver, 609

F. Supp. 1491 (D. Colo. 1985) ....seecseesees Sn

Keyes v. School Dist. No. 1, Denver, 540

F. Supp. 399 (D. Colo. 1982) ......secseesseees 4n

Keyes v. School Dist. No. 1, Denver, 474

F. Supp. 1265 (D. Colo. 1979) ...csessecsee: 17

Keyes ‘v. School Dist. No. 1, Denver, 380

F. Supp. 673 (D. Colo. 1974) ..rcecsecssesseees 2n

Keyes v. School Dist. No. 1, Denver, 368

F. Supp. 207 (D. Colo. 1974) ...e.ccecsessseees 2n

Morgan v. Nucci, 831 F.2d 313 (1st Cir.

1987) 23, 41

Pasadena Bd. of Educ. v. Spangler, 427

1).S. 424 (1976) 11, 13, 23, 41

Riddick v. School Bd. of Norfolk, 784 F.2d

521 (4th Cir.), cert. denied, 107 S. Ct.

420 (1986) 42

Scandia Down Corp. v. Euroquilt, Inc., 772

F.2d 1423 (7th Cir. 1985) , 37

vii

Table of Authorities (continued)

Page

Spangler v. Pasadena Bd. of Educ., 611 F.2d

1239 (9th Cir. 1979) 23n

Swann v. Charlotte-Mecklenburg Board of

Educ., 402 U.S. 1 (1971) i, 10, 33, 34,

United States v. Overton, 834 F.2d 1171

Cir. 1987) 42

United States v. Swift & Co., 286 US. 106

(1932) 40

Rules:

Fed. R. Civ. P. 65 31

No. 89-1698

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

SCHOOL DISTRICT NO. 1, DENVER, COLORADO,

Petitioner,

vS.

WILFRED KEYES, et. al.

On Petition For Writ of Certiorari

To the United States Court of Appeals

For the Tenth Circuit

BRIEF IN OPPOSITION TO CERTIORARI

Statement

Respondent pupils and parents have sought the

desegregation of the public schools of Denver, Colorado

since 1969. After this Court’s 1973 opinion in this case,’

" Keyes v. School Dist. No. 1, 413 U.S. 189 (1973).

the District Court on remand found that the school

system had been unconstitutionally segregated. When

the school board failed to make an acceptable proposal,

the court ordered the implementation in 1974 of a

desegregation plan designed by the Court’s consultant.*

In a 1975 opinion the Tenth Circuit affirmed the liability

finding and modified the remedy to eliminate "part-time"

desegregation provisions.‘ This Court then denied

review.”

In 1976 the trial court approved a_ stipulated

modification of the pupil assignment plan to carry out

the appellate mandate, and included an agreed three-

2 Keyes v. School Dist. No. 1, 368 F. Supp. 207 (D. Colo.

1974).

3 Keyes v. School Dist. No. 1, 380 F. Supp. 673 (D. Colo.

1974).

* — Keyes v. School Dist. No. 1, 521 F.2d 465 (10th Cir.

1975).

> 423 USS. 1066 (1975).

—EE—E—EE

year moratorium on changes of the plan. When the

moratorium expired in 1979, the parties returned to |

Court, because the Board wished to close certain

schools. The trial judge ordered certain plan changes

and noted the Board’s "dereliction" in its duty to propose

acceptable desegregation arrangements in order to avoid

criticism by putting that burden on the Court. App.

B19.°

The Board did not appeal the 1979 finding that the

system was not “unitary”. App. B20. Instead the Board

embarked on purported integration planning through the

mechanism of the "Ad Hoc Committee." This process

was abandoned when the Board, in 1981, proposed its

"Total Access Plan." That proposal would have

permitted any pupil in the system to attend any school,

“App.”

without assignments by the authorities. After a hearing

in 1982, the Total Access Plan was rejected with an

opinion finding that it would "result in resegregation."”

To accommodate a grade reorganization desired by

the Board, the Court approved the Board’s subsequently

presented "Consensus Plan" - modifying the prior plan -

for one year only in 1982. The court appointed an

expert "Compliance Assistance Panel" to assist the Board

to develop a more permanent arrangement and to

establish a unitary system. The Board obtained a one-

year extension of the "Consensus Plan" in 1983 while it

supposedly planned assignment revisions. The

"temporary plan" remained in effect several more years

after adversary litigation resumed in 1984, when the

Board rejected the proffered help of the court’s panel,

7 Keyes v. School Dist. No. 1, 540 F. Supp. 399, 402 (D.

Colo. 1982).

declared that the system was already unitary, and moved

for dismissal of the case and dissolution of the

injunction.

After a 1984 hearing and briefing (and a delay

during unsuccessful settlement negotiations), the Court

issued an opinion June 3, 1985 which rejected the

District’s claim that it was unitary and denied the

request to dissolve all pupil assignment injunctions. An

order of October 4, 1985 required the Board to file a

plan to correct four deficiencies:

(1) Correction of resegregation at Barrett,

Harrington and Mitchell elementary schools which had

been caused by the Board’s "Consensus Plan";

(2) Elimination of abuses of hardship and "baby-

sitting” transfer policies;

8 Keyes v. School District, 609 F. Supp. 1491 (D. Colo.

1985); App B.

(3) Corrections of faculty desegregation practices

which had violated the injunction since 1974;

(4) Plans to assure that future school construction,

utilization and planning decisions would not reestablish

the dual system. App. C1.

The Board appealed the two 1985 orders, but there

being no request for a stay, also filed a plan which was

considered at a hearing in March 1986. The Court ruled

that the Board could proceed with that plan in

September 1986 pending an opinion, which was filed

February 25, 1987.2 The Court held that it could not

determine in advance whether the Board’s proposals

would be effective, but it permitted continued

implementation of the District’s proposals. Because of

various uncertainties about the effectiveness of the plans,

% Keyes v. School District, 653 F. Supp. 1536 (D. Colo.

1987); App. D.

such as the fact the District had eschewed any new

mandatory pupil assignments to deal with the three

elementary schools, choosing instead various measures

designed to induce voluntary integration, the Court ruled

that it would await the results of the plan before making

any final determination. App. D8-9. The plan included

such features as a "grade-a-year" magnet plan to

integrate Mitchell, cosmetic improvement of buildings

and grounds at the three black schools to make them

comparable to paired Anglo schools, and _ strict

enforcement of new transfer rules to prevent abuses of

the baby-sitting transfer policy. The Court said that the

Board should return to court when it was in a position

to demonstrate that its proposals had been implemented

and were effective. App. D10. The Court rejected the

plaintiffs’ requests for further injunctive relief, reserving

them for further consideration if the Board’s plans

proved ineffective. Id.

The opinion also said that in the interim, pending

the Board’s further showing, the Court would reduce

judicial supervision of the district and would no longer

require the Board to get court approval before changing

assignments or other aspects of the desegregation plan.

The Court also advised that it would relinquish

jurisdiction over the case and enter a permanent

injunction as soon as the Board proved the effectiveness

of its plans. App. D10-13. The Court found a

permanent injunction necessary, among other reasons,

because without an injunction the dual system would be

re-established under the compulsion of Colorado’s Anti-

Busing Amendment. App. D11-12.

During the three years since that order, the Board

has steadfastly pursued appeals but declined the trial

court’s invitation to demonstrate the effectiveness of its

plan and thus precipitate the end of the case.'®

On October 6, 1987, the Interim Decree was

issued.'' The court noted that the interim decree

"removes obsolete provisions of existing orders,

relinquishes reporting requirements, and eliminates the

need for prior court approval before making changes in

the District’s policies, practices and programs." App. E4.

The interim decree supersedes all prior injunctions. The

Board is no longer obligated to follow the Finger Plan

or any particular plan of pupil assignment. Rather the

'0 In addition to the language in the opinions so stating,

the Court at a status conference on November 13, 1987 made clear

that it would schedule a hearing at the Board’s request, and that if

the Board made a satisfactory showing the court would enter a

permanent injunction and end active jurisdiction of the case. See

Tr. of Pretrial Conference, Nov. 13, 1987 (Resp. 10th Circuit

Addendum at 154-168). Although there have been no stays

pending appeal, and years have passed, the Board has not asked for

the hearing.

"| Keyes v. School District, 670 F. Supp. 1513 (D. Colo.

1987). See decree at App. ES-8.

Board is directed to achieve and maintain desegregation

under the Interim Decree’s principles. In language

intended to adopt this Court’s Swann standard, the

Board was enjoined in language modeled on the Swann

case from “operating schools or programs which are

racially identifiable as a result of their actions.""* An

appeal, which was consolidated with the appeal of the

1985 orders, followed.

The Tenth Circuit affirmed the orders of the trial

court in most respects, with a remand directing certain

changes in the language of the Interim Decree. The

Tenth Circuit wrote that "the record evidence adequately

supports the court’s specific finding that student

assignments are non-unitary," with the court noting that

"= #3 applies the rule of Swann v. Charlotte-Mecklenburg

Board of Education, 402 U.S. 1, 26 (1971). Where "schools . . . are

substantially disproportionate in their racial composition" the board

has a burden of showing that the “racial composition is not the

result of present or past discriminatory action on their part."

it had conducted its own "independent review of the

record." App. Al5. Both courts below rejected the

Board’s arguments that the case was factually like the

Pasadena’* case and that resegregation had been caused

by demographic change. App. Al5. The Tenth Circuit

wrote that the existence of racially identifiable schools

"especially when they once have been eliminated and

then resurface as a result of board action, is strong

evidence that segregation and its effects have not been

eradicated." App. A15-16. The Board failed to meet its

burden of showing that "such schools are nondiscrim-

inatory and that their composition is not the result of

present or past discrimination. Dayton II, 443 US. at

538; Swann, 402 US. at 26." App. Al6. The Tenth

Circuit also noted that the "district does not dispute the

‘3 Pasadena Board of Educ. v. Spangler, 427 US. 424

(1976).

standard employed by the district court in determining

whether a school is ‘racially identifiable.” App. A15, n.3.

Of course two additional grounds upon which the

trial court based its continuing jurisdiction were not even

challenged on appeal. The Board did not contest the

findings that the district was not unitary because of the

administration of hardship and baby-sitting transfers and

the failure properly to desegregate the faculties. The

baby-sitting transfers contributed to resegregation by

permitting white pupils to escape former minority

schools. App. B43-46; DS. The effect of some of the

transfers was to undercut certain pupil assignments and

defeat goals of the desegregation plan. The faculty

assignment policy continued the concentration of

minority teachers in Park Hill and Denver core city

schools where the 1960’s_ constitutional violations

occurred, while placing minimal numbers of minority

teachers in schools located in Anglo areas.

The Court of Appeals also rejected, with one

exception,’ the Board’s arguments that the Interim

decree was too vague. The Court specifically held that

paragraphs 2, 9(A) and 9(C) should not be interpreted

"to require that racial balance in any school or

department necessarily reflect the racial proportions in

the district as a whole," and cited the Spangler case.

App. A21. Otherwise, the Court found the order a

“commendable attempt to give the Board more freedom

to act within the confines of the law," and acknowledged

the difficulty in drafting an "injunction that will allow the

district maximum latitude in formulating policies, while

6 The Court found too vague paragraph 4 of the Interim

Decree on the ground that it merely required the district to obey

the law. That provision was unchanged from the 1974 Decree

which was affirmed in 1975.

at the same time making the injunction sufficiently

specific." Id. The Court found the Interim Decree

sufficiently specific "in light of the difficult subject

matter." Id. The Court concluded that "in Denver the

district has not accomplished all desegregation possible

and practical." Jd. at A22.

REASONS FOR DENYING THE WRIT

CERTIORARI SHOULD BE DENIED BECAUSE

THE PETITION PRESENTS NO CONFLICT WITH

EITHER THE DECISIONS OF THIS COURT OR OF

OTHER COURTS OF APPEALS.

A. Some Of The Questions Presented Are Premised

Upon Assumptions Which Are Directly Contradicted By

The Findings Of Both Courts Below.

1. In Denver The Transition From A Dual System Is

Not Complete.

a. The remedial plan in Denver has_ been

accomplished through a series of interim

amendments to the 1974 decree.

The Board’s assertion as to purported conflicts rests

in part upon the false premise that, upon the

implementation of the stipulated changes to the 1974

student assignment injunction in 1976, a complete,

effective and permanent plan for effecting a transition

from a dual system was in place. The Petition expresses

this idea in several ways by stating: (1) that the 1974-76

decrees constituted implementation of a

comprehensive remedial plan . . . ," see Question 1; (2)

that ". . . the remedial process of desegregation has been

carried to completion,” Pet. at 11; (3) that ". . . the

judicially prescribed remedy was complete ... ," id at

12; (4) that ". . . the affirmative duty to desegregate

schools has been accomplished ag Oe ee and (5)

that ". . . the purposes of the remedial plan have been

fulfilled ... ," id at 14.

No matter how many different self-serving ways the

Board describes the situation in Denver, those assertions

are directly contradicted by the concurrent findings of

both courts below. App. Al5 n.2; A22. Those courts

determined that the combined 1974-76 decrees were not

intended to be a "complete" plan because it was known

at the time that the integration would be undone by

changes already contemplated by the Board. App. B15;

18-19. Question 1 is thus not presented by this case

because the 1974-76 injunction was not in fact "a

complete plan" as urged by the Petition.

Similarly, in 1979 the district court with specific

reference to Spangler disavowed the implementation of a

single comprehensive plan intended to be a complete

remedy. Instead it characterized its necessary approach

as utilizing "the entry of interim orders" to "define and

determine the existence of a unitary system so that

jurisdiction over the Denver schools may finally be

relinquished." 474 F. Supp. 1265, 1271 (D. Colo. 1979).

In 1982, after rejection of its Total Access Plan the

Board presented the "Consensus Plan" as a temporary

solution. App. B22-23. After a hearing, over plaintiffs’

objections that the Consensus. Plan would also

resegregate schools integrated under the then current

plan, the district court accepted the interim approach,

reluctantly approving the plan for only one school year

"as an expedient which will accommodate the

educational policy decision to move to middle schools

.." App. B25. It is thus equally clear that both the

Board and the district court did not intend the 1982

Consensus Plan as a "comprehensive" or "complete

plan," as the Petition contends, but rather as a

temporary expedient, where both the district court and

all parties contemplated the need for future changes to

bring the district into compliance with respect to pupil

assignment.

The district court itself in its 1985 opinion

recognized and explicitly rejected the Board’s assertion *

that "The 1974 Decree, as modified in 1976, called for a

complete and adequate remedy for the segregative

effects of Denver’s dual system." App. B29, 30-35. It

also reviewed its remedial orders after 1976 and noted

their temporary, interim nature. I/d.

The school board’s contention here, that the

remedial orders were intended to be complete upon

implementation without further review, is entirely

unsupported in the record and directly contradicted

there. In view of this absolute lack of support one

wonders how the Board can justify this assertion.

b. The school authorities have disobeyed the

injunction as to both pupil assignment and

faculty integration and have _ resegregated

schools which were previously integrated.

The Petition’s second false premise for the alleged

conflicts is the alleged "full compliance" with the district

court’s remedial orders, also directly contradicted by the

findings below.

Those findings show that as to pupil assignment the

Board fostered evasion of the injunction’s assignments by

its lax administration of permissive policies allowing

parent-initiated “hardship" transfers, abuse of which the

district court found had adversely affected the level of

integration at a number of schools. App. B44-47.

The Court also determined that the substantial

changes in pupil assignments effected under the

Consensus Plan, as predicted by the plaintiffs, had

resegregated a number of elementary schools. The

Board’s alternative explanation based on demographic

change was rejected. App. Al4-15. Three such schools,

Harrington, Barrett and Mitchell were targeted for relief.

With respect to faculty integration the Court found

‘that since 1974 the District had been in violation of

express provisions of the Decree’s faculty desegregation

requirements (App. B38) and had been interpreting

those provisions in such a way as to minimize the

representation of minority faculty in _ previously

predominately white schools (App. B37). Moreover the

Court recognized that the earlier order was deficient in

that it did not prevent the Board from still concentrating

minority teachers in the segregated minority schools of

Park Hill and core city Denver. App. B38-41. The

Board was required to provide plans and policies which

would cure these defects. App. C4.

The foregoing findings hardly support the Board’s

assertion here of “full compliance" with the district

court’s remedial orders (Question 1).

The Tenth Circuit had no trouble recognizing as

erroneous the Board’s assertions as to _ the

"completeness" of the plans (App. A15, n.2) and its full

compliance with them (App. A45). It considered the

numerous reasons underlying the district court’s

determination that the school district had not attained

unitary status as to pupil assignment,'* and found them

supported in the record. App. Al4.

The Court of Appeals also had no difficulty in

sustaining the lower court’s continued exercise of

jurisdiction in requiring a remedy proposal for these

vestiges of the dual system and in retaining jurisdiction

to see whether the Board’s new plans were in fact

effective. App. A15-16.

The district court took a. similar approach with

respect to the efficacy of Resolution 2233 in maintaining

integration during the interim decree. The Court

declared: "What the District does in the operation of its

schools will control over what the Board says in its

resolutions." The Petition implies that this

5 In this proceeding the Board does not contest the

findings below as to its violation of the faculty integration

provisions and the adverse impact of parent-initiated transfers on

the results of the desegregation plan.

demonstration was the only reason the Tenth Circuit

upheld continuing jurisdiction (Pet. at 15), but as

discussed supra that was not the case. Moreover, in a

district such as Denver where the transition from a dual

system is not complete, Spangler’ss presumption that the

Board should be allowed to conduct its own affairs free

from judicial supervision obviously does not apply.

c. The asserted conflicts do not exist.

Given the fact that in Denver the remedial plans

were never intended to be complete | upon inception

without further judicial review, that school authorities

violated the remedial orders, and that those violations in

turn required a remedial effort which is not complete,

the asserted conflicts with the decisions in Morgan and

Spangler'® do not exist. Moreover, "Question 1" is not

‘© Morgan v. Nucci, 831 F.2d 313 (1st Cir. 1987); Spangler

v. Pasadena Board of Educ., 611 F.2d 1239 (9th Cir. 1979).

presented on the facts and findings in this case,

concurred in by both courts below.

2. The District Court’s Temporary Replacement Of The

1974-76 Decree With The Interim Decree Was Not

Premised On the Unitary Status Of The District.

The Board, against the express findings of the

district court, also attempts to equate that court’s

decision to vacate the original final decree with an

unexpressed finding of unitary status. See Question 2.

The petitioner faults the Tenth Circuit because: "It failed

or declined to recognize that the very fact of dissolution

of the 1976 decree, and the express determination that

the school district need no longer follow the Finger Plan,

was the equivalent of a finding in 1987 that the district

aria! cin TEN aS —

had become unitary at least as to student assignments."

Pet. at 10.'”

This assertion of an equivalency to unitary status

flowing from the decision to utilize an interim decree

ignores the district cual express findings, which have

uniformly rejected assertions of unitary status since 1976,

and it ignores the expressed reasons underlying the

decision. Those reasons included the Court’s

determination that while the District had not yet attained

unitary status, the Interim Decree’s “principal purpose is

to enable the defendants to operate the school system

under general remedial standards, rather than specific

judicial directives." App. E4. The court’s objective was

7 The school board similarly attempts to explain the

reason for replacement of tre original decree as to pupil

assignment as there being no further necessity for it because that

remedy was complete: ". . . [T]he original remedial order has been

fully executed and a court has determined that it need no longer be

followed." Pet. at 12. We have dealt with the "completeness"

contention earlier.

to see whether, left to its own discretion without specific

court formulas and directives, the District could attain

unitary status. That the Court was not yet willing to

completely free pupil assignment from judicial review

was reflected in the Interim Decree’s provisions relating

to that subject. App. A18-19. In opposing this position,

the Board argues for a rule embracing a rigid all-or-

nothing approach to pupil assignment provisions, which

is inconsistent with the flexibility inherent in equitable

relief and which finds no support whatsoever in any

reported case. Pet. at 12.

B. The Issues Purportedly Raised In Questions 2 and 4

Are Not Presented By This Case, Whose Actual

Remedial Processes Conflict With No Other Precedents.

Nothing in the Interim Decree requires periodic

adjustments of pupil assignments to maintain racial

balance in the schools. Thus the Question 2 assertion of

a requirement "to maintain racial balance in all schools

of the district for an indeterminate period of time (and

perhaps permanently)" contains a number of hypotheses

contradicted by the record.

The first hypothesis presumably is that me or

both of paragraphs 4 and 2 of the Interim Decree which

required "maintenance" of the desegregated condition

and prohibited the operation of "racially identifiable

schools" carry the questioned requirement. See Pet. at

13. Yet as a result of the Tenth Circuit’s review, both

of these contentions have been laid to rest. Paragraph 4

has been stricken. App. Al8. Paragraph 2 has been

given a gloss which prevents the Board’s interpretation.

Id. at A21.

Contrary to petitioner’s assertions there is nothing

in the Interim Decree which requires "continuing

adjustments in order to preserve racial balance" unless

that imbalance is the result not of demographic change,

but the Board’s own actions. This provision in no way

enaiiicts with Pasadena, supra, where the plan was

complete and this Court struck down a requirement of

the maintenance of racial balance where imbalances

were the result of demographic changes rather than

Board action.

The second hypothesis, as to the indeterminate life

of the Interim Decree, hides the fact that it is the

petitioner here who controls when the district court will

hear the issue of the adequacy and effectiveness of its

1987 proposals; when that showing is accepted, the

district court stands ready to lift the Interim Decree:

"When that has been done, the remedial stage of this

case will be concluded and a final decree will be entered

to give guidance for the future." App. E4.

re eC

Thus the petitioner can trigger the final stage of this

case whenever it believes that it can demonsirate that its

programs which the court conditionally accepted in 1987

have been effective. Requiring this showing is

particularly appropriate because, as the district court

noted at the time, the school district chose to use

untried techniques, including a "grade-a-year" magnet

plan, to reestablish integration, and there was no

guarantee that they would in fact be effective. App. D8.

"It is precisely because the Board has selected the more

subtle methods for inducing change that this court must

retain jurisdiction to be certain that those methods are

effective." Jd at 9. Similarly, it was reasonable to

require the Board to demonstrate the effectiveness of its

new policies as to baby-sitting transfers and faculty

desegregation. Since these matters constitute "unfinished

business," requiring this showing from the Board was

entirely reasonable and offends no precedent of which

we are aware. The very existence of this unfinished

business negates petitioner’s assertion that the remedy

was already complete. A remedy was put in place in the

Fall of 1987, but with its effectiveness remaining to be

determined.

The third hypothesis assumes the existence of a

permanent decree with hypothetical senate of

periodic adjustments for racial balance. The short

answer is that such a permanent decree does not

currently exist in this case, and there is no basis for

assuming that any permanent relief ultimately provided

would include such a requirement.

Thus none of the issues asserted under Question 2

actually exist in this case, and the remedial approach

actually adopted by the district court is unremarkable

and conflicts with no other precedent.

For the same reasons the issues supposedly

described in Question 4, which also attacks alleged

injunctive requirements of racially balancing every school

in the District, are in fact not presented by the decisions

below. See App. A20-21.

The remaining issues contained in Questions 3 and

4 relate to the Interim Decree’s compliance with Fed. R.

Civ. P. 65, which we will now address.

CERTIORARI SHOULD NOT BE GRANTED TO

REVIEW THE INTERIM INJUNCTION WHICH

CONFLICTS WITH NO OTHER JUDICIAL

DECISION

1. This question of the supposed vagueness of the

Interim Decree presents no serious issue beyond that of

alleged error, and thus fails to meet the Court’s

standards for granting certiorari. No conflict among the

Circuits is urged or demonstrated. At most the decree is

merely interim in nature; the Board controls its duration,

and if left to its own pursuits, the district court will

shortly replace the interim decree with final orders which

may Or may not present the other issues which this

Petition prematurely anticipates.

2. If there is any difficulty in framing a less specific

injunction, that difficulty has nothing to do with whether

or not the new provisions are "replacing a satisfied

remedial order ... ," Pet. at 16, but rather lies in the

complexity of the problem.

3. The Board’s real position is that there can be no

acceptable student assignment or school utilization or

construction decree unless it speaks in terms of mgid

mathematical formulas or specific schools and since the

Interim Decree here does not use that approach, it must

fail for vagueness. The focal point of this attack is the

injunction’s use of the term "racially identifiable,’ which

the district court equated with Swann’s "schools which

are substantially disproportionate in their racial

composition," (Swann, 402 U.S. at 26) or "one-race or

virtually one-race schools, (id.), or schools which are "all

or predominately of one race," (id.) or "disproportionate

racial concentrations," id. at 23. App. E5. We doubt

that any of these other legal standards from Swann

would be any more acceptable to petitioner, yet this is

the correct legal standard, and the district court here did

follow it.

4. At footnote 11 the petitioner rails against the

injunction’s supposed prohibition against any racially

identifiable school, and ignores’ the _ contrary

interpretation and instruction of the Circuit Court.

Compare Pet. at 17, n. 11 with App. A at 21. When it

recognizes the Tenth Circuit’s interpretation it then

faults it for not enunciating a mathematical formula for

the Board to follow. Pet. at 17. Footnote 11 also

complains that this provision prohibits the district from

having one-race schools which might otherwise be

acceptable under Swann, but there is no support for this

contention. The Board seems to be contending that it is

as of right entitled to some one-race schools, regardless

of their cause, and that this provision takes away this

entitlement.

5. The Board then erroneously contends that even

though it has not yet eliminated discrimination root and

branch in Denver, as this Court’s prior opinion required

(413 US. at 213), it should nevertheless be required only

to refrain from intentional discrimination and to be free

from any responsibility for the results of its actions. Pet.

at 18. This assertion is contrary to the teachings of

Swann, Brown II, and Dayton IT. See App. A13-14.

a a ee

6. The Board’ next contends, somewhat

disingenuously in view of the nearly two decades of

litigation about its conduct in the remedial stages of this

case, that it has no idea of what it can or cannot do in

the operation of the District and is subject to "the

constant peril of future judicial intervention in the form

of contempt proceedings (as well as continued extension

of judicial control)." Pet. at 18-19. If the Interim

Decree’s vagueness leads the Board into an unwitting

violation of it, that very eaneitiie would protect them

from contempt, as the Decree would be construed in

their favor. See the discussion of this point in the Tenth

Circuit opinion, App. A21.

7. While the Board argues that a more "specific"

decree would give it clear direction as to future lawful

conduct, that assertion itself is sophistry. The

combination of factors and considerations that go into

eT eT

consideration of issues relating to pupil assignment,

school construction and utilization, to name just a few

topics of everyday school district life are too complex to

be captured and prejudged by any rigid formula. To

even approach the level of “certainty” desired by the

school district would require a decree scores of pages

long, with every uncovered or unthought-of hypothetical

creating the same type of "peril." It is exactly for this

reason that the principled approach chosen by the

district court is a far better alternative than the rigid

formula approach contended for by the Board. As

noted by the Tenth Circuit: "The degree of specificity

may be determined in light of the difficult subject

matter." App. A21. The Swann opinion acini the

same difficulty in defining the remedy.'®

‘8 "However, in seeking to define the scope of remedial

power or the limits on remedial power in an area as sensitive as we

deal with here, words are poor instruments to convey the sense of

There will always be gray areas where countervailing

considerations could lead to differing points of view as

to the appropriate choice. But in those instances school

authorities can always seek guidance from the court.

Contrary to the Board’s contention the Board does not

have to act at its peril if it truly is in doubt. Scandia

Down Corp. v. Euroquilt, Inc., 772 F.2d 1423 (7th Cir.

1985).

8. The Petition at 19 attempts to make this

“vagueness" a problem endemic to any permanent or

continuing obligation which follows a determination that

the remedy is complete. We believe that question

should be left to a later day when such an injunction is

in place. That is not the case today, and of course it

may not be the case in the future; there is little reason

basic fairness inherent in equity. Substance, not semantics must

govern, and we have sought to suggest the nature of limitations

without frustrating the appropriate scope of equity." 402 U.S. at 31.

to grant certiorari today to consider the propriety of

injunctive provisions that do not exist. Pet. at 19. When

Denver is in fact a school district that has "fulfilled the

prescribed remedy for a constitutional violation" the time

will be ripe for the courts below to consider what

continuing obligations are appropriate. Pet. at 19.

Indeed if the Court’s opinion in Oklahoma City is

applicable the courts below will follow it. Thus there is

no purpose to be served by holding this Petition to await

the outcome in Oklahoma Cut.

THE DENIAL OF THIS WRIT SHOULD NOT BE

DEFERRED PENDING THE OUTCOME IN THE

OKLAHOMA CITY SCHOOL CASE .

A. Contrary To Petitioners Assertion There Is No

Relationship Between The Issues Accepted For Review

In Oklahoma City And The Proceedings Below In

Denver.

In Dowell,'? the school district had implemented the

plan in 1972, been declared unitary in 1977, and then

reverted partially to segregated schools in 1984. In 1977

the district court relinquished jurisdiction but did not

- dissolve its injunction. No one had appealed those

determinations.

'9 Dowell v. Board of Educ. of Oklahoma City Public

Schools, 890 F. 2d 1483 (10th Cir. 1989), cert. granted, 58 U.S.L.W.

3610 (U.S. Mar. 27, 1990), No. 89-1080.

20 Dowell v. Board of Educ, 338 F. Supp. 1256 (WD.

Okla.), aff'd, 465 F.2d 1012 (10th Cir.), cert. denied, 409 U.S. 1041

(1972).

None of the five questions presented in Oklahoma

City have any direct relationship to the decisions below

in Keyes. Four of them are premised on the trial court’s

finding of unitary status in Dowell (which never occurred

in Keyes) and the fifth relates to the applicability of

United States v. Swift & Co., 286 U. S. 106 (1932) to the

modification or vacation of a desegregation decree

following a finding of unitary status.

Since neither court below invoked Swift as the basis

for refusing to vacate the Denver decree, this issue is

also inapplicable to the decisions below in Keyes.

The petitioner in Oklahoma City seeks the Court’s

definition of the legal significance of unitary status, both

in terms of the school district’s continuing duties and the

district court’s continuing jurisdiction. Those issues are

not present in Keyes because Denver has not been found

to have completed its conversion from the dual system,

either as to pupil assignments and transfers or faculty

integration, the most basic components of such

conversion.

It is not that the decision in Oklahoma City could

have no future relevancy to Keyes, just as it could to any

existing schooi case; but the Oklahoma City decision

would not result in a determination that either the

district court or the Tenth Circuit in this case had erred

in the decisions below. Therefore, if certiorari is to be

granted in Keyes it is for reasons totally unrelated to the

questions presented in Oklahoma City.

Moreover, the conflicts which this Court granted

certiorari in Oklahoma City to resolve have no

relationship to the conflicts asserted in this Petition. This

Petition relies on supposed conflicts with Morgan and

Spangler, supra, while Oklahoma City, concerned with the

rules for a school district’s unilaterally changing a court-

ordered plan after a unitary _ finding, is concerned

exclusively with asserted conflicting results in Riddick v.

School Bd. of Norfolk, 784 F. 2d 521 (4th Cir.), cert.

denied, 107 S. Ct. 420 (1986) and United States v.

Overton, 834 F. 2d 1171 (Sth Cir. 1987). As a reflection

of how different the issues are in these two petitions, the

Denver Petition does not even argue any conflict with

either Riddick or Overton, and as discussed supra, only

refers to Overton in the context of a final injunction

which does not exist in the Denver case. Pet. at 19.

B. The Denial Of Certiorari Should Not Be Delayed.

The Denver Petition’s assertion that the issues in

the two cases are "closely related" (Pet. at 20), borders

on the extreme fringes of hyperbole.

In summary, whatever the decision in Oklahoma City

it will have no impact upon the past conduct of the

Keyes case, since Oklahoma City is exclusively concerned

with ‘enue which arise after a school district is declared

to be unitary. To the extent that this Court’s decision in

Oklahoma City speaks to the future conduct of Keyes,

such as the content of the permanent injunction, it is

premature to address those issues in the Denver case.

Therefore there is no reason to delay the denial of

certiorari in this case. Upen such denial and the return

of the case to the district court it is likely that, at the

Board’s request, the district court will hold a final

hearing and take whatever action is appropriate to

conclude the case. That process of formulating a

permanent injunction and dismissing the case has now

been delayed several years by the Board’s appeal of the

Interim Decree and refusal to attempt to prove the

efficacy of its plans.

Conclusion

For the foregoing reasons, Respondents respectfully

pray that the writ be denied forthwith.

Respectfully submitted,

Antonia Hernandez *Gordon G. Greiner

E. Richard Larson Holland & Hart

Norman V. Cantu P.O. Box 8749

MALDEF Denver, CO 80201

140 E. Houston Street (303) 295-8235

Suite 300

San Antonio, TX 78205 Julius L. Chambers

(512) 224-5476 Charles S. Ralston

Norman J. Chachkin

Peter Roos 99 Hudson Street

M.E.T.A., Inc. New York, NY 10013

524 Union Street (212) 219-1900

San Francisco, CA 94133

(415) 398-1977 James M. Nabrit, III

7211 16th Street, N.W.

Washington, D.C. 20012

*Counsel of Record (202) 723-5916

Counsel for Respondents

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