Opposition Brief — Lorain Board of Education v. Ohio Department of Education

NO 92-1713

IN THE iis ae

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

LORAIN BOARD OF EDUCATION, et al.,

Petitioners,

V.

OHIO DEPARTMENT OF EDUCATION,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

LEE FISHER

Attorney General of Ohio

RITA S. EPPLER

Chief, Employment Law Section

Counsel of Record

LAUREN M. ROSS

Assistant Chief, Education Section

CONSTANCE M. GREANEY

Assistant Attorneys Genera!

Employment Law Section

30 East Broad Street, 26th Floor

Columbus, Ohio 43266-0410

(614) 644-7257

COUNSEL FOR RESPONDENT

KKK

TABLE OF AUTHORITIES

STATEMENT OF CASE

REASONS FOR DENYING THE WRIT

TABLE OF CONTENTS

|. THIS CASE DOES NOT WARRANT EXERCISE

OF THIS COURT’S JURISDICTION WHERE

THE LOWER COURT'S DECISION

SUPPORTED BY SOUND PRINCIPLES OF

PUBLIC POLICY AND PRESENTS NO

CONFLICT WITH CASE LAW OF THIS COURT

OR OTHER CIRCUITCOURTS

A. The Sixth Circuit's Decision Limiting A

B.

District Court's Ability To Expand A

Consent Decree To Increase The

Obligations Of A Party Where No

Liability Has Been Admitted Or

Adjudicated Is Supported By Sound

Principles Of Public Policy ........--

The Sixth Circuit's Decision That A

District Court May Not Modify A

Consent Decree To Increase The

Obligations Of A Party Where No

Liability Has Been Admitted Or

Adjudicated Is Consistent With The

Decisions Of This Court .........---

The Sixth Circuit's Decision Is

Consistent With The Other Circuits

Which Have Addressed The Issue Of

Attempted Expansion Of A Party's

Obligations Under A Consent Decree

iS

.

PAGE

ll. THESIXTH CIRCUIT APPLIED THE CORRECT

STANDARD OF APPELLATE REVIEW, AND NO

INSTRUCTION IS NEEDED FOR THE LOWER

COURTS

CONCLUSION

TABLE OF AUTHORITIES

CASES PAGE(S)

Black Law Enforcement Officers Ass'n v. Akron,

824 F.2d 475 (6th Cir. 1987)

Board of Educ. of Oklahoma City Public Schools v. Dowell,

117 S. Vt. GBT (19987) ww ce ewer c enn nvervens 13, 14

Brinkman v. Gilligan,

503 F.2d 684 (6th Cir. 1974),

appeal after remand, 518 F.2d 853 (6th Cir. 1975),

cert. denied, 423 U.S. 1000 (1975),

appeal after remand, 539 F.2d 1084 (6th Cir. 1976),

vacated sub nom. Dayton Bd. of Educ. v. Brinkman,

433 U.S. 406 (1977),

on remand, 561 F.2d 652 (6th Cir. 1977),

on remand, 446 F. Supp. 1232 (S.D. Ohio 1977),

rev'd, 583 F.2d 243 (6th Cir. 1978),

aff'd sub nom. Dayton Bad. of Educ. v. Brinkman,

443 U.S. 526 (1979),

later proceeding, 610 F. Supp. 1288 (S.D. Ohio 1985),

remand without opinion, 835 F.2d 877 (6th Cir. 1987),

remand without opinion, 835 F.2d 878

SUMMED pecs c css esc e cesses veseseesce 2

Brown v. Board of Educ.,

eee 14

Dayton Bd. of Educ. v. Brinkman,

OE ne 2, 20

Donaghy v. City of Omaha,

933 F.2d 1448 (8th Cir. 1991),

cert. denied, 112 S. Ct. 938 (1992) ..... cee eee eee 11

Fox v. United States Dept. of Hous. and Urban Dev.,

680 F.2d 315 (3rd Cir. 1982) ........ eee eeees 12, 16, 18

CASES PAGE(S)

Freeman v. Pitts,

112 S. Ct. 14390 (1992)... eee eee eee were reer renee 13

Heath v. DeCourcy,

888 F.2d 1105 (6th Cir. 1989),

following remand, No. 9|-3778/92-3317,

1993 U.S. App. LEXIS 9933

(6th Cir. April 30, 1993) 26... ee eee eee eee eee eens 6, 13

Lorain NAACP v. Lorain Bd. of Educ.,

768 F. Supp. 1224

(N.D. Ohio, 1991) we eee eee eee ee eee eee 1, 3, 7, 8, 10

Lorain NAACP v. Lorain Bd. of Educ.,

979 F.2d 1141 (6th Cir. 1992) ....... 1, 2, 8-10, 13-15, 20

Milliken v. Bradley,

418 U.S. 717 (1974) 2. cc cece ee eee eee renee eres 13

Penick v. Columbus Bd. of Educ.,

429 F. Supp. 229 (S.D. Ohio 1977),

aff'd, 583 F.2d 787 (6th Cir. 1978),

aff'd in part and remanded in part, 443 U.S. 449 (1979),

on remand, 519 F. Supp. 925 (S.D. Ohio 1981),

aff'd, 663 F.2d 24 (6th Cir. 1981),

cert. denied, 455 U.S. 1018 (1982) «1... eee eee eens 2

Planned Parenthood of Southeastern Penn. v. Casey,

112 S. Ct. 2791 (1992) 2... cece eee e were ee eences 20

Rajender v. University of Minnesota,

730 F.2d 1110 (8th Cir. 1984) ..... eee eee eees 12, 16, 17

Reed v. Rhodes,

422 F. Supp. 708 (N.D. Ohio 1976),

remanded without opinion, 559 F.2d 1220 (6th Cir. 1977),

on remand, 455 F. Supp. 546 (N.D. Ohio 1978),

supp. opinion, 455 F. Supp. 569 (N.D. Ohio 1978),

later proceeding, 581 F.2d 570 (6th Cir. 1978),

20

CASES PAGE(S)

aff'd in part, 607 F.2d 714 (6th Cir. 1979),

cert. denied, 445 U.S. 935 (1980),

on remand, 500 F. Supp. 404 (N.D. Ohio 1980),

aff'd, 662 F.2d 1219 (6th Cir. 1981),

cert. denied, 455 U.S. 1018 (1982) ..... ce eee eee eee 2

Rufo v. Inmates of Suffolk County Jail,

bee Mee fi er ee ee 13

San Francisco NAACP v. San Francisco Unified Sch. Dist.,

896 F.2d 412 (Oth Cir. 1990) ....... cee eens 12, 18, 19

Stuart v. Roche,

951 F.2d 446 (1st Cir. 1991),

cert. denied, 112 S. Ct. 1948 (1992) ....... ee ee eee 11

Swann v. Charlotte-Mecklenburg Bd. of Educ.,

GT BE a) ee ee eee ee eee 13

Thornburgh v. American College of

Obstetricians and Gynecologists,

Pe SUE See) ee ee ee ee 20

United States v. Armour & Co.,

Po GE be 2 fs | ee ee ere oe ee 17

United States v. Swift & Co.,

y BEE A 9g: ee i ee 18

Walker v. U.S. Dept. of Hous. and Urban Dev.,

912 F.2d 819 (Sth Cir. 1990) ....... cee eeeeee 12, 17, 18

STATUTES AND RULES

2B U.S.C. SIZ01(ANT) onc ccc r ee eceeeevecnsveceseces 19

a a A eee EES ETO LE LEE ES See eee 20

STATEMENT OF THE CASE

This school desegregation action was initiated by

Complaint filed by Petitioner Lorain NAACP and others in

September of 1979. The Defendants were Petitioner Lorain

Board of Education (“Lorain Board”) and its individual

members, the Ohio State Board of Education and its individual

members, the Ohio Superintendent of Public Instruction, and

Respondent, the Ohio Department of Education (“Ohio

Department’).

The Complaint was filed after the Lorain Board had closed

a single school building, resulting in a disproportionate

impact on Black and Hispanic students. Officials at the Ohio

Department were of the opinion that the Co-Defendant, the

Lorain Board, could be found liable as a result of this action.

Lorain NAACP v. Lorain Bd. of Educ., 979 F.2d 1141, 1152

(6th Cir. 1992) (A.20).! However, because of the unique

circumstances leading up to the Complaint and the fact that

the State Board of Education and the Ohio Department were

not made aware of these circumstances, officials at the Ohio

Petitioners misstate the record by relying on the testimony of one

of the Ohio Department's witnesses and cite to the District Court, Lorain

NAACP v. Lorain Bd. of Educ., 768 F. Supp. 1224, 1238 (1991) (A.56),

in support of the proposition that the Ohio Department “was anxious

to settle [this litigation] to avoid the heavy costs of litigation and the

certainty of an adverse verdict." (Pet. at 19). In fact, the Sixth Circuit

found it necessary to address this particular statement of the District

Court directly and conciuded:

[A]s a “finding of fact” [this declaration] not only runs counter

to the express provision of the consent decree, but appears

to improperly delve into the State's motivation for compromise

and misstates the record.

979 F.2d at 1152 (emphasis added) (A.20).

Department believed that the State’s potential liability was

not consistent with the previous Ohio school desegregation

cases. /d

After extensive discovery and settlement discussions, the

parties entered into a Consent Decree filed and approved

by the District Court in August of 1984. (A.77-94). No trial

was ever conducted, and no liability on the part of any of

the Defendants was either admitted or established.

The Consent Decree included a Goal Statement which

required the Lorain Board to “[e]liminate racially identifiable

schools” and “[a]ssign students to school attendance areas

so that each school will establish a composite minority

student ratio of no more than a deviation of +20 or -15 percent

from the District Average percentage of each identifiable

minority’s student racial composition.” (A.83).

The Goal Statement also included a provision concerning

2 In previous school desegregation cases filed in Ohio, the State's

liability was premised on the conclusion that State education officials

had known about the school districts’ intentional discrimination and

segregative acts and continued to provide state funding to the districts.

See Penick v. Columbus Bd. of Educ., 429 F. Supp. 229 (S.D. Ohio 1977),

aff'd, 583 F.2d 787 (6th Cir. 1978) aff'd in part and remanded in part,

443 U.S. 449 (1979), on remand, 519 F. Supp. 925 (S.D. Ohio 1981), aff'd,

663 F.2d 24 (6th Cir. 1981), cert. denied, 455 U.S. 1018 (1982), Reed

v. Rhodes, 422 F. Supp: 708 (N.D. Ohio 1976), remanded without opinion,

559 F.2d 1220 (6th Cir. 1977), on remand, 455 F. Supp. 546 (N.D. Ohio

1978), supp. opinion, 455 F. Supp. 569 (N.D. Ohio 1978), /ater proceeding,

581 F.2d 570 (6th Cir. 1978), aff'd in part, 607 F.2d 714 (6th Cir. 1979),

cert. denied, 445 U.S. 935 (1980), on remand, 500 F. Supp. 404 (N.D.

Ohio 1980), aff'd, 662 F.2d 1219, (6th Cir. 1981), cert. denied, 455 U.S.

1018 (1982); Brinkman v. Gilligan, 503 F.2d 684 (6th Cir. 1974), appeal

after remand, 518 F.2d 853 (6th Cir. 1975), cert. denied, 423 U.S. 1000

(1975), appeal after remand, 539 F.2d 1084 (6th Cir. 1976), vacated sub

nom. Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406 (1977), on remand,

561 F.2d 652 (6th Cir. 1977), on remand, 446 F. Supp. 1232 (S.D. Chio

1977), rev'd, 583 F.2d 243 (6th Cir. 1978), aff'd sub nom. Dayton Bd.

of Educ. v. Brinkman, 443 U.S. 526 (1979), later proceeding, 610 F. Supp.

1288 (S.D. Ohio 1985), remand without opinion, 835 F.2d 877 (6th Cir.

1987), remand without opinion, 835 F.2d 878 (6th Cir. 1987).

NN eeeeeeEeEeeeeeE SS

bilingual programs aimed at the Lorain City School District's

Hispanic students. (A.83). Specifically, the Consent Decree

required the Lorain Board to retain an independent

contractor to evaluate its existing programs, to eliminate any

shortcomings discovered in the evaluation process and

implement modifications, and to maintain bilingual programs

for Hispanic students. (A.83).

Finally, the Goal Statement required the Lorain Board to

achieve a hiring goal for all staff equal to the ‘“minority/

majority ratio of the adult population in Lorain in the year

of achievement.” (A.88). By 1991, all the goals of the Consent

Decree had been achieved except the one pertaining to

hiring of minority employees. Lorain NAACP v. Lorain Bd.

of Educ., 768 F. Supp. 1224, 1234 (N.D. Ohio 1991) (A.47).

The Consent Decree clearly identified the role each party

was to play in implementing desegregation in the Lorain

City School District. Contrary to Petitioners’ contentions, the

Defendants, the Lorain Board and the Ohio Department, did

not agree to share equally the costs of desegregating the

Lorain City Schoo! District. (Pet. at 8-9, 10, 20, 21, 25). In

fact, the financial obligation of the Ohio Department was

expressly limited to making a specific contribution over

seven school years, 1984-85 through 1990-91, that

represented the lesser amount of either 50 percent of the

cost of desegregation or one million dollars. (A.80).

Petitioners rely on a partial quotation of paragraph 4 of

the Consent Decree in order to claim ambiguity regarding

the intent of the parties concerning the Ohio Department's

funding obligation. (Pet. at 25). However, when the provision

is read in its entirety it is abundantly clear no ambiguity

exists. The pertinent language on the funding obligation of

the parties is as follows:

4. The State of Ohio will pay to the Lorain City

School District 50 percent of the expenses incurred

by the Lorain City School District in designing,

implementing, administering and maintaining

educationally sound programs reasonably

expected to reduce racial isolation to the standards

defined in the Goal Statement. The State of Ohio

will pay 50 percent of the unreimbursed expenses

attributed to the transportation of students who are

being transported for the reduction of racial

isolation. “Unreimbursed expenses” shal! mean

the portion of this expense which remains after

deducting the state transportation reimbursement

applicable to students involved in such

transportation.

The total of the expenses referred to above shal!

be limited to those incurred during the seven school

years 1984-85 through 1990-91, and the State of

Ohio payments shall not exceed $1 million during

the seven year term, or 50 percent of the actual

reduction of racial isolation costs, whichever is

less.

Beginning in December 1984, payments made

by the State shall be made semi-annually in the

months of December and June upon the

submission of vouchers covering costs actually

incurred by the Lorain City School District. Such

payments shall be in addition to all other state and

federal funds to which the Lorain City School

District may be entitled under law and regulations

existing at the time of the submission of the

vouchers.

(A.80) (emphasis added).

With regard to the bilingual program, the Ohio

Department's obligation was specified as follows:

The cost of such evaluation shall be considered

part of the cost of implementation of the Consent

Decree and up to 50 percent of the cdst shall be

reimbursed by the State of Ohio as provided in

Item No. 4 of the Consent Decree.

(A.83) (emphasis added). Thus, the funding to be provided

by the Ohio Department was firmly in place and fixed to

a maximum of one million dollars, with the only reimbursable

cest associated with the bilingual program being the

independent evaluation.

No attempt was made, by either the Lorain Board or the

Ohio Department, to calculate the costs of implementing the

desegregation plan at the time the funding provisions of the

Consent Decree were negotiated. Indeed, at the time the

Ohio Department agreed to pay fifty percent of the Lorain

Board's costs up to one million dollars, the Lorain Board

had not even decided on the method it was going to utilize

to desegregate its school district. That decision was not made

until the parties were unable to agree on a plan to be utilized

to acheve the objectives of the Consent Decree, and the

District Court directed the Lorain Board to present a revised

proposed plan for implementation.

The Proposed Plan, with some modifications, was adopted

by Memorandum Opinion and Order issued April 1, 1985.

The Proposed Plan identified six schools that were out of

compliance with the student racial composition requirement

of the Consent Decree, and identified 654 as the number

of students that needed to be moved to achieve the requisite

racial composition. Under the Proposed Plan, the Lorain

Board chose to use magnet schools as the method for moving

students and achieving the racial composition goals.

On January 29, 1990, the Lorain Board filed a Motion for

an Order Requiring the Defendant State Board of Education

to Increase its Share of the Costs of Implementing and

Completing the Desegregation Plan. (“Lorain Board's

Motion”). Neither the Lorain NAACP nor the Coalition for

Hispanic Issues and Progress (“CHIP”), which was granted

leave to intervene in the action in April cf 1989 to represent

the interests of the Hispanic students and community in the

Lorain City School District, joined in the motion.

On May 24, 1990, the District Court issued an Order

denying the Lorain Board's Motion, finding that:

The language of the Consent Decree clearly limits

the State’s financial exposure to the cost of the

desegregation plan incurred during the seven

school years 1984-85 through 1990-91 to $1 million

dollars or 50 percent of the actual cost, whichever

is less. There is no provision in the Consent Decree

for increased contribution on the part of the State

should the cost of the desegregation plan exceed

the original estimate.

The District Court went on to apply the standard set forth

in Heath v. DeCourcy, 888 F.2d. 1105 (6th Cir. 1989)

(“Heath !’), following remand, No.91-3778/92-3317, 1993 U.S.

App. LEXIS 9933, (6th Cir. April 30, 1993) (“Heath //’), for

modifying a consent decree and found:

The goal of the Consent Decree at issue in this

case is to desegregate the Lorain schoo! system

pursuantto the terms set out in the Consent Decree

and to maintain an effective bilingual program.

While the greater than anticipated cost of the

program may constitute a changed circumstance,

it does not go to the heart of the purpose of the

Consent Decree.

The Lorain Board filed a Motion for Reconsideration of

the District Court's May 24, 1990, Order. The Ohio Department

opposed the motion for reconsideration, and on July 26, 1990,

the District Court conducted a hearing. After the hearing

and submission of post-hearing briefs, the District Court on

August 17, 1990, directed the Lorain Board and the Ohio

Department to enter into discussions for the purpose of

renegotiating the Consent Decree. The Co-Defendants were

further directed, if unable to reach agreement, to submit their

own respective proposals to the District Court. Following

clarification from the District Court that this was not a final

appealable Order, the Ohio Department entered into

negotiations with the Lorain Board. After no resolution was

reached, the Ohio Department and the Lorain Board

submitted separate proposals to the Court in early 1991.°

A hearing on the Lorain Board’s Motion was held in April

and May of 1991. Evidence presented at the hearing showed

that since 1985 the Lorain Board had increased the scope

of its magnet program and the number of students involved.

The District Court concluded that it was necessary for the

Lorain Board to move more than 650 students to maintain

a viable desegregation program, despite the Lorain City

School District's stable population, both in percentage of

racial composition and geographic location. 768 F. Supp.

at 1231 (A.40). In addition, by the spring of 1991, in addition

to the approximately 1300-1350 students in “court ordered”

magnet programs, there were an additional 2000-2200

students in “non-court ordered magnet programs.’ As the

District Court correctly noted:

7. Lorain has expanded its magnet school

program beyond the magnet programs necessary

to achieve the goals of the Consent Decree in the

above-captioned case. Seventeen out of twenty-

one schools in Lorain currently have magnet

programs. ... The additional magnet programs in

place in the Lorain City School District help Lorain

to maintain desegregation in its schoo! district but

are not necessary for Lorain to maintain

compliance with the terms of the Consent Decree

with respect to composition of student population.

. Petitioners incorrectly contend that the record shows that the Ohio

Department failed to negotiate. (Pet. at 10-11, 20). What the record reveals

is simply that the negotiations were unsuccessful.

“There are approximately 3,500 students involved in magnet programs

in Lorain out of a total student population in the District of about 12,300

students.” 768 F. Supp. at 1232. (A.41). This is in dramatic contrast to

the 654 students initially identified in the Proposed Plan as the number

needed to be moved to achieve the requisite racial composition. See

supra at 5.

768 F. Supp. at 1231-1232 (A.41), (footnote and transcript

citations omitted) (emphasis in original).

On June 21, 1991, the District Court issued a Memorandum

Opinion and Judgment Entry ordering the Ohio Department

to pay fifty percent of the Lorain Board's claimed

desegregation costs for the 1989-90 school year, for a total

of $2,600,917.00. 768 F. Supp. at 1244, 1245 (A.73). The

District Court further ordered the Ohio Department to pay

forty percent of the desegregation costs for the 1990-91

school year; thirty percent for the 1991-92 school year; twenty

percent for the 1992-93 school year; and ten percent for

the 1993-94 school year. 768 F. Supp. at 1246 (A.74).

The District Court estimated that the payments over the

five years would total approximately nine million dollars. 768

F. Supp. at 1246 n.30 (A.74). The District Court provided the

Lorain Board with leave to file an application for

reimbursement for each of the remaining four school years

and provided the Ohio Department thirty days to file

objections challenging the accountings in the applications.

768 F. Supp. at 1246 (A.75). The District Court also ordered

the Ohio Department to pay interest, at the rate prescribed

by law, from the date of the Judgment Entry, unless the Ohio

Department paid the principal amount of the initial judgment,

$2,600,917.00 within sixty days. /d.

The Ohio Department appealed to the Sixth Circuit,

asserting that the District Court had erred as a matter of

law by imposing additionai financial obligations on the Ohio

Department under the guise of modifying the Consent

Decree. Petitioner Lorain NAACP was not a party to the

appeal because it had not followed the Sixth Circuit's rules

for notice of appearance of counsel and had not timely filed

a brief.

5

The Ohio Department also assigned as error several issues including

the payment of interest and matters relating to the District Court's

calculation of the additional financial obligation. These factual

assignments of error were not ruled upon by the Sixth Circuit. Lorain

_ NAACP, 979 F.2d at 1153 n. 5 (A.23).

in an Opinion issued November 12, 1992, the Sixth Circuit

Court of Appeals reversed the District Court, holding that:

a district court may not, in the name of

modification, circumvent the express terms of a

defendant party's consent in the absence of an

adjudicated or admitted violation of law. In the

absence of an adjudication or admission of

constitutional violation, the district court's authority

to impose additional obligations on a defendant

is constrained by the terms of agreement entered

by the parties to the consent decree.

Lorain NAACP. 979 F.2d at 1153 (A.22). A motion for rehearing

and suggestion for rehearing en banc was denied by the

Sixth Circuit on January 5, 1993. (A.93).

REASONS FOR DENYING THE WRIT

|. THIS CASE DOES NOT WARRANT EXERCISE

OF THIS COURT’S JURISDICTION WHERE

THE LOWER COURT'S DECISION IS

SUPPORTED BY SOUND PRINCIPLES OF

PUBLIC POLICY AND PRESENTS NO

CONFLICT WITH CASE LAW OF THIS COURT

OR OTHER CIRCUIT COURTS

A. The Sixth Circuit's Decision Limiting A

District Court's Ability To Expand A

Consent Decree To Increase The

Obligation Of A Party Where No Liability

Has Been Admitted Or Adjudicated Is

Supported By Sound Principles Of

Public Policy

Petitioners attempt to disguise the Lorain Board's effort

to fundamentally change the Consent Decree as merely a

request to enforce or modify the Consent Decree when, in

fact, what the Lorain Board asked the District Court to do

was to vastly expand the obligations of the Ohio Department.

Both Lower Courts acknowledged that the Consent Decree,

10

as expressly written, did not provide for any state funding

beyond one million dollars. 768 F. Supp at 1243-1244

n. 24 (A.68-69); 979 F.2d at 1147 (A.9).

Petitioners incorrectly allege that the Sixth Circuit, in

refusing to permit a modification which would have increased

the Ohio Department's obligation from one million to nine

million dollars, promulgated a new rule of law, without

precedent which would eliminate a district court's power

to modify a consent decree. (Pet. at 3). The Ohio Department

has never contested the District Court's authority to adopt,

enforce, or interpreta consent decree or modify it by reducing

a party's obligations. As noted by the Sixth Circuit:

[t]he state’s appeal in this case did not challenge

the district court's authority to modify a consent

decree generally nor question the proper standard

for modification; it is concerned instead with the

court's authority to modify the decree by

substantially increasing the State’s burden, over its

objection and witnout any finding or

acknowledgment that the State has violated the

Plaintiff's constitutional rights.

979 F.2d at 1150 (A.15).

In addressing this issue the Sixth Circuit held:

[A] district court may not, in the name of

modification, circumvent the express terms of a

defendant party’s consent in the absence of an

adjudicated or admitted violation of law. In the

absence of an adjudication or admission of

constitutional! violation, the district court’s authority

to impose additional obligations on a defendant

is constrained by the terms of agreement entered

by the parties to the consent decree.

979 F.2d at 1153 (A.22). The decision of the Sixth Circuit

prevents radically different obligations from being imposed

on a governmental defendant, which entered into and has

11

fully complied with a consent decree, but which never had

an opportunity to defend itself on the issue of liability and

was never found liable for any constitutional violation. This

holding is a reasonable method of balancing the interests

of the parties to institutional reform litigation. To hold

otherwise would mean that a governmental agency could

be required to take action, including the expenditure of public

money, far in excess of what it had originally agreed to settie

the litigation.

Contrary to Petitioners’ assertion, it is this unlimited

potential for increased obligations on a defendant, not the

unavailability of such increases at the request of plaintiffs

or co-defendants, which would have a chilling effect on

parties’ willingness to enter into consent decrees. Uniess

a party can be certain that the terms of its compromise will

not be altered in a manner which increases its obligations,

it cannot reasonably be expected to give up its right to

establish its lack of liability at trial.®

6 Petitioners make several inaccurate statements about the significance

of the use of a liability disclaimer provision in the Consent Decree.

First, Petitioners state that the Sixth Circuit viewed the disclaimer as

pivotal to its decision. (Pet. at 17). However, what the Sixth Circuit viewed

as pivotal was that the Ohio Department had not admitted or been

adjudicated liable of a constitutional violation. The disclaimer illustrates

this but was not the basis for the Sixth Circuit's reversal of the District

Court.

Petitioners then assert that a disclaimer is to be given very little weight,

citing Stuart v. Roche, 951 F.2d 446 (1st Cir. 1991), cert. denied, 112

S. Ct. 1948 (1992), and Donaghy v. City of Omaha, 933 F.2d 1448 (8th

Cir. 1991), cert. denied, 112 S. Ct. 938 (1992) in support of this conclusion.

(Pet. at 17-18). These cases do not support Petitioners’ argument,

however, as they are both factually and legally distinct. Both Stuart and

Donaghy deal with third party reverse discrimination challenges to

consent decrees. Both cases hold that the liability disclaimer does not

mean that the consent decree cannot be considered remedial for

purposes of withstanding third party challenges of reverse

discrimination. Neither case stands for the proposition that all disclaimers

are to be considered surplusage.

12

This is especially significant for governmental defendants

which have ongoing obligations to carry out their activities

in a constitutional manner and which also serve as stewards

of the public's money. Ironically, the direct beneficiary of the

sought after increased funding from the Ohio Department

in this case is the Lorain Board, another governmenta!

agency and a Co-Defendant in this litigation.

Contrary to Petitioners’ suggestion, prior court decisions

interpreting modifications of consent decrees in institutional

reform litigation do not indicate that parties have been

deterred from entering into consent decrees with

governmental agencies or that more cases have not been

settled and have gone to trial as a result of a court's inability

to increase a governmental defendant's liability in the

absence of an admission or an adjudication of a constitutional

violation. Nor do Petitioners provide this Court with any

rationale for their belief that the Sixth Circuit's decision will

cause a Chilling effect on parties’ willingness to enter into

consent decrees.

in fact, the Sixth Circuit's decision is consistent with the

holdings of the other circuit courts of appeals that have

considered this same issue. See Walker v. U.S. Dept. of Hous.

and Urban Dev., 912 F.2d 819 (5th Cir. 1990); Rajender v.

University of Minnesota, 730 F.2d 1110 (8th Cir. 1984); Fox

v. Dept. of Hous. and Urban Dev., 680 F.2d 315 (3rd Cir. 1982);

see also San Francisco NAACP v. San Francisco Unified

Sch. Dist., 896 F.2d 412, 415 (9th Cir. 1990). See infra at 15

- 19. No evidence has been presented from the experiences

of these circuits that would validate Petitioner's claims of

chilling effect. Moreover, the result urged by Petitioners could

easily result in an increase in complex institutional reform

cases that governmental entities would be compelled to

adjudicate through lengthy, hard fought trials.

13

B. The Sixth Circuit's Holding That A

District Court May Not Modify A

Consent Decree To Substantially

Increase A State’s Burden Over Its

Objections And Without Any Finding Or

Admission That A State Violated

Plaintiff's Constitutional Rights, Is

Consistent With The Well-Settled Law

Established By This Court.

The Sixth Circuit’s decision in the present case is

consistent with this Court’s longstanding principle that

federal judicial power “may be exercised ‘only on the basis

of a constitutional violation ....'” Milliken v. Bradley, 418

U.S. 717, 738 (1974) (quoting Swann v. Charlotte-

Mecklenburg Bad. of Educ., 402 U.S. 1, 16 (1971)). The principle

that federal judicial power must be tailored to remedying

a constitutional violation has been restated in this Court's

more recent decisions. Freeman v. Pitts, 112 S. Ct. 1430,

1445 (1992); Board of Educ. of Oklahoma City Public Schools

v. Dowell, 111 S. Ct. 631, 637 (1991).

Similarly, in Rufo v. Inmates of Suffolk County Jail, 112

S. Ct. 748, 762 (1992), this Court stated that “[f]Jederal courts

may not order States or local governments, over their

objection, to undertake a course of conduct not tailored to

curing a constitutional violation that has been adjudicated.”

Petitioners argue that the Sixth Circuit's decision eviscerates

the flexible standard established by this Court in Rufo for

modification of consent decrees and that this decision is

a departure that will erode the flexibility needed to ensure

dismantling of segregated institutions. (Pet. at 5, 7). The Sixth

Circuit, examining the basic principles of consent decree

interpretation and modification, clearly held that the less

stringent standard enunciated in Rufo and Heath /, 888 F.2d

1105 (6th Cir. 1989) would apply to school desegregation

cases. Lorain NAACP. 979 F.2d at 1149. (A.14). The recent

Sixth Circuit decision of Heath //, clearly indicates that the

Circuit understood and correctly applied Rufo. Heath /I/, No.

91-3778/92-3317, 1993 U.S. App. LEXIS 9933 at *13.

14

The Sixth Circuit decision in the case at bar is not a

departure from the Rufo standard governing modifications.

Lorain NAACP, 979 F.2d at 1148-49 (A.12-15). Rather, the Sixth

Circuit determined that Rufo had not addressed the situation

in which the modification sought to increase the obligations

of a party. 979 F.2d at 1152-53, n.4 (A.20-22).’ Therefore,

the Sixth Circuit's holding is limited to cases seeking to

impose an additional obligation on a party in the absence

of an adjudication or an admission of a constitutional

violation. This decision is consistent with the other courts

of appeals which have addressed this issue and is not in

contravention of this Court's decision in Rufo.

Moreover, the Sixth Circuit's decision is consistent with

the decisions of this Court which have repeatedly reiterated

the need for district courts to limit their involvement in school

desegregation cases as the school district becomes unitary.

Dowell, 111 S. Ct. at 637. This Court, in Dowell, cited the

“all deliberate speed” language from Brown v. Board of Educ.,

349 U.S. 294, 301 (1955), and noted that “[flrom the very

first, federal supervision of local school systems was

intended as a temporary measure to remedy past

discrimination.” 111 S. Ct. at 637. Thus, remedial orders in

school desegregation cases “are not intended to operate

in perpetuity.” /d. Significantly, this statement was made in

the context of a request by the Okiahoma City Board of

Education to dissolve the desegregation consent decree.

The Sixth Circuit’s decision in the present case prohibits

a modification which would have increased the Ohio

Department's financial obligation more than nine-fold, from

one million to over nine million dollars, and which would

have extended the Ohio Department's financial obligation

for an additional five years. This increase and extension were

ordered by the District Court at a time when all school

. Even Petitioner admits that in the context of modification of a consent

decree, this Court has never addressed a district court's ability to impose

additional financial obligations on a governmental defendant. (Pet. at

14).

15

buildings in the Lorain City Schoo! District had been in

compliance with the Consent Decree since the 1989-1990

school year and the Lorain Board had met ail of its obligations

under the Consent Decree except for the minority hiring

goals. Under these circumstances, the Sixth Circuit's

reversal of the District Court's modification order furthers

the important goal of removing the Lorain City School District

from continuing federal court supervision, a supervision

which has imposed obligations on the Lorain Board and

the Ohio Department since 1984.

C. The Sixth Circuit’s Decision Is

Consistent With The Other Circuits

Which Have Addressed The Issue Of

Attempted Expansion Of A Party's

Obligations Under A Consent Decree.

As pointed out by the Sixth Circuit in its Opinion, it could

find no authority, and none was provided by Petitioner:

. to support the contention that, absent an

adjudication of constitutional violation, the State of

Ohio is legally obliged, or may be judicially ordered

over its objection, to increase its share of the costs

of desegregation beyond the $1 million limitation

establishing the terms and scope of its consent.

979 F.2d at 1153 (A.22). However, other circuit courts of

appeals have addressed requests similar to the issue in this

case, that is, the attempted expansion of a party’s financial

obligation under a consent decree. In each case the court

of appeals reversed the district court's order expanding the

consent decree.

In Fox v. United States Dept. of Hous. and Urban Dev.,

The money ordered to be paid by Ohio Department was reimbursement

for the Lorain Board's expenses in operating its magnet programs and

its bilingual program and, except for several hundred dollars, had nothing

to do with minority hiring.

16

680 F.2d 315 (3rd Cir. 1982), the Third Circuit Court of Appeals

considered an order by the district court modifying a consent

decree by requiring defendant United States Department of

Housing and Urban Development ("HUD") to allocate eleven

million dollars to finance the rehabilitation and construction

of lower income housing. HUD, like the Ohio Department,

had never been found liable by either the consent decree

or by aprior adjudication on the merits. The Court recognized

that "[t]he plaintiffs have not sought enforcement of an

existing term, but imposition of an additional term beyond

the scope of HUD’s consent.” 680 F.2d at 322. In vacating

the district court’s modification order, the court reasoned

that:

Although we do not doubt the power of a court

to modify an injunctive order entered by consent,

we think that in the usual case a court may not

impose additional duties upon a defendant party

to a consent decree without an adjudication or

admission that the defendant violated the plaintiffs’

legal rights reflected in the consent decree and

that modification is essential tc remedy the

violation. . . . To impose additional duties under

the decree because of those changes is to

disregard the basic rights of litigants who waive

their right to litigate defenses by consenting to have

a decree entered against him. The conditions upon

which rights are waived must be respected.

680 F.2d at 323 (emphasis added).

In Rajender v. University of Minnesota, 730 F.2d 1110 (8th

Cir. 1984), the Eighth Circuit addressed an attempt to expand

a party's liability beyond the consent decree. Rajender

involved an employment discrimination suit brought by non-

student employees against the University. Prior to the

conclusion of the trial on the merits, the parties entered

into a consent decree which among other things, set a $6,000.

limit on attorney fees. Nine months later, the district court

changed the decree, over the objections of the University,

and expanded the University’s liability to include “all

17

reasonable” attorney’s fees without a limitation on the dollar

amount. 730 F.2d at 1114. The Eighth Circuit reversed, stating

that “[w]e cannot save the parties from a bad bargain, or

from a bargain that they now claim was bad.” 730 F.2d at

1117.

Most recently, Wa/ker v. United States Dept. of Hous. and

Urban Dev., 912 F.2d 819 (5th Cir. 1990), the Fifth Circuit

Court of Appeals was presented with the issue of whether

it should expand a consent decree and impose upon HUD

an additional financial obligation. As in the case at bar, the

co-defendant to the consent decree, the Dallas Housing

Authority, claimed that it could not continue the plan to

address racial housing segregation in Dallas under the

consent decree because another governmental entity and

co-defendant, HUD, had drastically reduced its federal

operating subsidy. The issue before the court was whether

the decree should be expanded to require HUD to increase

tne subsidy.

The Fifth Circuit refused to impose this type of expanded

liability and held:

As a general principle, a consent decree is a

product of negotiation and compromise entered

into by parties with divergent purposes, but aligned

for the simple reason of avoiding costly and

protracted litigation. See United States v. Armour

& Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757-

58, 29 L.Ed.2d 256 (1971). The respective

obligations of these parties are discerned strictly

from within the decree’s four corners, as written,

and not from the articulated purposes of either

party. /d. at 682, 91 S.Ct. at 1757.

Nor are courts at liberty to redraft the obligations

commanded by the decree absent consent of the

parties.

912 F.2d at 825. The Fifth Circuit concluded that it was “not

at liberty to r-odify the decree to bind HUD involuntarily

-

18

to additional financial obligations to which, as the court

admits, the agency never agreed.” The Fifth Circuit, relying

on the Third Circuit, stated:

As was the case in Fox, the parties “have not sought

enforcement of an existing term, but imposition of

an additional term beyond the scope of HUD's

consent.” Id. at 322. If the decree has been

frustrated because the parties’ respective fiscal

obligations were not memorialized in writing, the

decree should be vacated, renegotiated and, if

impasse persists, the cause scheduled for trial.

912 F.2d at 827.

In each of these Circuits, the Courts of Appeals expressly

held that a district court cannot expand a consent decree

by imposing additional duties on one of the parties to a

consent decree without an admission or adjudication that

the party violated the plaintiffs’ legal rights.* Moreover,

Petitioners rely on San Francisco NAACP v. San Francisco

Unified Sch. Dist., 896 F.2d 412 (9th Cir. 1990) to support

their contention that a district court had authority to impose

additional financial obligations on a government defendant

when substantially changed circumstances warrant the

modification. (Pet. at 12). San Francisco NAACP involved a

challenge by a local schoo! district to the state’s reduction

in funding for desegregation which had been established

pursuant to a consent decree. The Ninth Circuit declined

to expand the scope of the consent decree given its language

® Petitioners state that Fox, 680 F.2d 315, and Walker, 912 F.2d 819,

applied the U.S. v. Swift & Co., 286 U.S. 106 (1932), strict standard of

review, which is no longer in force. (Pet. at 17 n.2). Petitioners are

incorrect because both Fox and Walker distinguish Swift and limit it

to cases in which a defendant was seeking to be released from

obligations imposed by a consent decree. Fox and Walker both involved

the imposition of new burdens on a defendant and are concerned with

the court's authority, not the standard of review to be used. Fox, 680

F.2d at 323; Walker, 912 F.2d at 827. The relaxation of the strict Swift

standard of review did not affect the validity of either of these cases.

——S—aeaaaaaaa—_. a=

19

and the lack of extrinsic evidence as to the intent of the

parties. 896 F.2d at 415. Similar to the other circuits

considering this issue, the Ninth Circuit “note[d] courts have

generally been reluctant to impose affirmative funding

obligations on governments where those obligations exceed

the express terms of aconsent decree.” /d. (citations omitted).

Accordingly, the Sixth Circuit's holding in this case that

a district court cannot modify a consent decree to impose

new and substantially burdensome obligations on a party

without that party’s consent, in the absence of an admission

or adjudication of constitutional liability by that party breaks

no new ground. It is entirely consistent with the holdings

of the other circuits which have addressed this issue.

ll. THE SIXTH CIRCUIT APPLIED THE CORRECT

STANDARD OF APPELLATE REVIEW AND NO

INSTRUCTION IS NEEDED FOR THE LOWER

COURTS

Petitioners’ second suggested reason for granting

certiorari is that it would provide this Court an opportunity

to instruct the district and appellate courts on the proper

standards for appellate review. This opportunity is not

needed because it is Petitioners, rather than the Sixth Circuit,

which misunderstand the role of the appellate court in

reviewing decisions of the district court.

The Sixth Circuit held that in circumventing the express

terms of the Consent Decree, the District Court abused its

discretion. Petitioners argue that the Sixth Circuit erred in

using this standard of review. (Pet. at 23). Petitioners are

wrong on this point, since abuse of discretion is the

appropriate standard of appellate review and the Sixth Circuit

applied it correctly in this case.

A consent decree is a form of injunctive relief, and an

appellate court's power of review is derived from 28 U.S.C.

1291(a)(1). Thornburgh v. American College of Obstetricians

and Gynecologists, 476 U.S. 747, 757 (1986), overruled on

other grounds, Planned Parenthood of Southeastern Penn.

20

v. Casey, 112 S. Ct. 2791 (1992). A court of appedts reviews

a district court's decision concerning a consent decree only

to see if the district court abused its discretion. Dayton Bd.

of Educ. v. Brinkman, 433 U.S. 406, 447-18 (1977); Fed. R.

Civ. P. 52. Abuse of discretion may be shown by

demonstrating that the district court relied on clearly

erroneous findings of fact, or improperly applied the law or

relied on an erroneous legal standard. /d. See a/so Black

Law Enforcement Officers Ass'n v. Akron, 824 F.2d 475 (6th

Cir. 1987).

In the present case, the Sixth Circuit clearly stated that

it reviewed the District Court's decision on an abuse of

discretion standard. Lorain NAACP, 979 F.2d at 1153 (A.23).

The Sixth Circuit found that the District Court had improperly

applied the law and overstepped its authority by imposing

additional obligations on the Onio Departmentin the absence

of an admission or adjudication of a constitutional violation.

979 F.2d at 1153 (A.23). This legal error constituted an abuse

of discretion. Dayton Bd. of Educ., 433 U.S. at 417-18.

Because the Sixth Circuit held that the District Court

applied the wrong legal standard and therefore abused its

discretion, the Sixth Circuit did not have to review the District

Court's factual findings. While the Sixth Circuit indicated that

it agreed with many of the District Court's findings, such

as the finding that the Consent Decree clearly limited the

Ohio Department's obligation to one million dollars, the Sixth

Circuit explicitly refrained from addressing many of the

factual issues because its legal analysis justified finding an

abuse of discretion on the part of the District Court. The

Sixth Circuit based its conclusion, that the District Court

had abused its discretion, on a finding that the District Court

had applied the wrong legal standard and not on any review

of the District Court's factual findings.

Thus, the Sixth Circuit identified and correctly applied the

right standard of review. There is no need for this Court

to grant this Petition to instruct the appellate courts on this

issue.

21

- CONCLUSION

For all the aforementioned reasons, this Court should deny

the petition for writ of certiorari.

Respectfully submitted,

LEE FISHER

Attorney General of Ohio

RITA S. EPPLER

Chief, Employment Law Section

Counsel of Record

LAUREN M. ROSS

Assistant Chief, Education Section

CONSTANCE M. GREANEY

Assistant Attorneys General

Employment Law Section

30 East Broad Street, 26th Floor

Columbus, OH 43266-0410

(614) 644-7257

COUNSEL FOR RESPONDENT

May 26, 1993