Appendix — Keyes v. School Dist. No. 1, Denver

: , | 7 FILED

COPY |} Cis wn

& ROBERT SEAVER, CLERK

Ix THE

amn mn en

Oocroser Term, 1971

1 is

Win Keyes, et al.,

Petitioners,

V.

School. District No. 1, Denver, Conorapo, et al.

ee

APPENDIX TO PETITION FOR CERTIORARI

OPINIONS BELOW

Jack GREENBERG

James M. Nasarr, III

Cuaries STERN Ratstox

Norman J. Cuacuxkrn

10 Columbus Circle

New York, New York 10019

Gorpon G. Gremver

Rosert T. Connery

500 Equitable Building

Denver, Colorado 80202

Attorneys for Petitioners

INDEX

PAGE

Opinion of District Court of July 31, 1969 (Granting

Preliminary Injunction) la

Opinion of District Court of August 14, 1969 (On re-

mand from Court of Appeals, making Supplemental,

Findings and Conclusions and amending the Pre-

liminary Injunction to make it more specific) ) 20a

Opinion of District Court of March 21, 1970 (Opinion

on merits) 44a

Opinion of District Court of May 21, 1970 (Opinion

on relief) 99a

Opinion of Court of Appeals of June 11, 1971 122a

Judgment of Court of Appeals 159a

Opinion of District Court of July 31, 1969

UNITED STATES DISTRICT COURT

D. CoLoRADO

Civ. A. No. C-1499

July 31, 1969

Wr Keyes, individually and on behalf of

Cuzist1 Kzyes, a minor, et al.,

Plaintiffs,

Vr

Sono, Districr Numpze Ox R, Denver, Cotorano, et al.,

Defendants.

Memoranpum Opinion AND OnpER

Wix E. Doyzs, District Judge

I. Jugispicrion

This is before us on a motion for temporary injunction.

Examination of the complaint reveals that jurisdiction is

invoked by reason of Title 28 U.S.C, § 1343 (3) (4), which

authorizes the Court to entertain suits which seek to redress

injuries resulting from violations of the Constitution of

the United States. Although the Declaratory Judgment Act

has been invoked, this does not of itself confer any inde-

pendent jurisdiction. The Civil Rights Act is also drawn

into play, Title 42 U.S.C. §§ 1983, 1985. It is alleged that

the State of Colorado, acting through its agents, violated

plaintiffs’ constitutional rights. By reason of the allega-

la

2a

Opinion of District Court of July 31, 1969

tions of the complaint and the facts which have been pre-

sented, it is determined that there is subject matter juris-

diction to hear the cause.

their parents that their rights have been violated and con-

tinue to be violated through acts that have been described.

Consequently, they are aggrieved persons. There is no dis-

pute about their identity or their interest in the case, nor

is there any question raised as to the propriety of a class

action on behalf of all persons similarly situated. Conse-

quently, there does not appear to be any problem about

jurisdiction, personal or subject matter, to entertain the

cause. Both sides have conceded that it is a matter that

needs immediate attention and that it should be disposed of

without delay.

II. TAI Issuns

The pleadings describe alleged injuries resulting from

the plaintiffs having been subjected to unequal treatment

with respect to their right to an education. They seek to

enjoin the implementation of a resolution of the School

Board passed on June 9h of this year which would have

rescinded previous resolutions which had made some effort

to mitigate or reduce segregation which allegedly had ex-

isted in schools in the northeast part of Denver. The de-

fendants deny that there has been any actionable segrega-

tion. Although no answer has been filed, they maintain

that segregation, if any, exists by reason of maintaining

neighborhood schools and natural migration, and that no

action on their part has brought this about or intensified it.

Basically, this is the issue which has been tried here, and

has been tried rather extensively.

3a

Opinion of District Court of July 31, 1969

The complaint herein contains several causes of action

and counts. At this stage of the proceedings we are con-

gerned only with the first cause of action and the counts

which are related to it. All of these allegations pertain to

the rescission of School Board Resolutions 1520, 1524 and

1531, which resolutions made changes in the attendance

areas of certain high schools, junior high schools and ele-

mentary. schools in northeast Denver, and undertook to

desegregate these schools, all of which had become or were

becoming predominantly Negro schools. It is alleged that

on June 9, 1969, the newly elected School Board, by motion,

rescinded all three resolutions. The complaint alleges that

the action of the Board was in violation of the plaintiffs’

Constitutional rights—the Fourteenth Amendment—and

seeks a decree reinstating Resolutions 1520, 1524 and 1531.

The motion for preliminary injunction which is now

before us seeks to enjoin the implementation of Board Res-

olution 1533 which would adopt and follow the policy which

would carry out the practices which existed prior to the

Board’s adoption of Resolutions 1520, 1524 and 1531. The

temporary injunction seeks maintenance of the status quo

and, specifically, an order enjoining the School Board from

modifying the purchase order for school buses, destroying

documents relating qr pertaining to the implementation of

Resolutions 1520, 1524 and 1531 and, thirdly, from taking

any action or making any communications to faculty, staff,

parents or students during the pendeney of the suit which

would make it impossible or more difficult to proceed with

the implementation of Resolutions 1520, 1524 and 1531. The

defendants have not filed an answer. However, at the hear-

ing they denied that any of their acts were invalid and

generally maintained that they had made good faith efforts

to integrate the schools in question to the extent that it was

4a

Opinion of District Court of July 31, 1969

possible to do so considering the geographic circumstances.

They further maintained that the segregation, if any, was

merely de facto growing out of the neighborhood char-

acter of the schools, and that the acts of the School Board

do not amount to actionable or de jure segregation.

er III. Tae Evwence or rar Case |

Attention at this hearing has focused primarily on the

schools in northeast Denver, and particularly on the area

which is commonly called Park Hill. The alleged segre-

gated schools, elementary and junior high schools in this

ten years. The primary reason for this has been the migra-

tion of the Negro community eastward from a confined

community surrounding what is commonly called “Five

Points.” Before 1950 the Negroes all lived in a community

bounded roughly by 20th Avenue on the south, 20th Street

on the west, York Street on the east and 38th Avenue on

the north. The schools in this area were, and are now,

largely Negro schools. However, we are not presently con-

cerned with the validity of this condition. During this

period the Negro population was relatively small, and this

condition had developed over a long period of time. How-

ever, by 1960 and, indeed, at the present time this popula-

tion is sizable. As the population has expanded the move

has been to the east, first to Colorado Boulevard, a natural

dividing line, and later beyond Colorado Boulevard, but

within a narrow corridor—more or less fixed north-south

boundaries. The migration caused these areas to become

substantially Negro and segregated.

The trend of the population was apparent long before the

migration of the Negro population eastward to Colorado

Boulevard was completed. Notwithstanding this fact, the

5a

Opinion of District Court of July 31, 1969

Barrett Elementary School was built in the late 1950’s for

the purpose of serving a residential area west of the school,

which area was destined in a short time to become popu-

lated by Negro families. When this school was completed

and opened, its population was predominantly Negro. In

a few years it became overwhelmingly Negro in its com-

In the early 1960’s Colorado Boulevard was somewhat of

a dividing line and the area east of Colorado was for the

most part Anglo. Thus Stedman School, which was a few

blocks east of Colorado Boulevard, was almost entirely

Anglo, while Barrett was predominantly Negro. The migra-

tion soon continued across Colorado Boulevard and within

a very short time not only was the Stedman School pre-

dominantly Negro, the other elementary schools in that

area, including Hallett at 2950 Jasmine Street, Smith at

3590 Jasmine Street and Phillips at 6550 East 2ist Avenue

(to a lesser degree) were also predominantly Negro. The

single junior high school, Smiley, at 2540 Holly Street, also

became predominantly Negro. Since these students attend

_ East High School, this development threatened to result in

East becoming a Negro school as well.

It is noteworthy that notwithstanding that Barrett and

Stedman Schools were close to one another, no effort was

made by the School Board to incorporate any part of the

Stedman district into Barrett. The latter had been con-

structed as a small school tailored to accommodate the

segregated population west of Colorado Boulevard only.

None of Stedman’s overcrowded white population were

diverted to Barrett, and, of course, none of the Barrett

students were diverted to the white Stedman.

_It is also noteworthy that Negro children who had, prior

to the construction of Barrett, attended Park Hill School

6a

Opinion of District Court of July 31, 1969

opening of Barrett, required to attend the latter school

so er cA A i a aati

Hill predominantly white.

nV iealeanbiniay is thensasontsde,

tion was made in 1963 to construct a junior high: school at

32nd and Colorado Boulevard near the Barrett School.

This project was rejected after much debate and following

.. n.

TVC

Committee on Equality of Educational Opportunity in the

Denver Publie Schools was created. Its mission was to

“study and report on the present status of educational op-

portunity in the Denver Public Schools, with attention to

racial and ethnic factors in the areas of curriculum, instruc-

tion and guidance; pupils and personnel; buildings, equip-

ment, libraries and supplies, administration and organiza-

tion; school-community relations, and to recommend im-

provements in any or all of such specific areas.” The report

of the Committee criticized the Board’s establishing of

school boundaries so as to perpetuate existing de facto

segregation “and its resultant inequality in the educational

opportunity offered.” It recommended that the Board

policy consider racial, ethnic and socioeconomic factors in

establishing boundaries and locating new schools so as to

minimize the effects of de facto segregation. It also recom-

mended that boundaries be set so that the neighborhood

established represent a heterogeneous school community.“

—

VVV

% Sh ths BRS cabin the Committee finds

that de facto segregation exists in Denver, especially in re-

7a

Opinion of District Court of July 31, 1969

Following the finding of the Study Committee Report,

the Board adopted Policy 5100 which called for changes or

adaptations which would result in a more diverse or hetero-

geneous racial and ethnic school population. However, dur-

ing the years following the adoption of Policy 5100, al-

though there was debate, there was no effective effort in the

way of implementation. Finally, another Study Committee

was appointed for the purpose of examining existing con-

ditions and recommending specific procedures and guide-

lines to be taken. At this time there was a proposal to build

an addition to the Hallett School and, indeed, it was built

over the protest that it would result in intensified segrega-

tion. The final report of the second Study Committee was

filed on February 23, 1967. The report of the Committee

also noticed the intensified segregation in the northeast

schools and recommended that there be no more schools

constructed in northeast Denver. Finally, on May 16, 1968,

the Board adopted the so-called Noel Resolution. This noted

that the continuance of neighborhood schools had resulted

in the concentration of minority and ethnic groups and

8 Even though the Denver Public

Schools have not created this pattern of residential segrega-

tion, the concentration of certain racial and ethnic groups in

certain parts of the city does impose on the schools the same

education is W unequal education. The

Committee further believes that this community pattern of

racial and ethnic concentration which produces racially and

ethnically concentrated schools affects equal educa-

tional . It further believes that both

school and community have a bility to minimize the

effects of segregation if the of the Declaration of

I and the Constitution are to be a reality growing

out of the daily living experience of all children in the Denver

community.

8a

Opinion of District Court of July 31, 1969

called for the establishment of an integrated school popula-

tion so as to achieve equality of educational opportunity.

On or about January 30, 1969, following the presentation

of a plan of integration by the superintendent of schools,

the Board adopted Resolution 1520 which made changes in

attendance areas of certain secondary schools in the school

district, and on March 20, 1969, Resolution 1524, also hav-

ing to do with secondary schools and junior high schools,

was adopted. Resolution 1531, on the other hand, sought

to change attendance areas of the elementary schools. In

essence, each of these resolutions sought to reverse the

segregation trend in some of the segregated schools by

boundary changes which would have resulted, had they

become effective, in segregated schools becoming predomi-

nantly white. It sought to spread the Negro populations

of these schools to numerous other schools, thereby achiev-

ing what has been described as racial balance in all of

them so that their predominantly Negro populations would

become roughly 20 percent and white students from other

areas would produce an Anglo population in each school

of about 80 percent. At least preliminary efforts had been

made by the superintendent and his staff to implement these

resolutions. However, on June 9, 1969, following a School

Board election and a change in the composition of the Board,

the resolutions were rescinded following what was regarded

as a voter mandate. Two new Board members were elected

and two who had supported the integration policies were

defeated. The rescission was by specific motions, and there

followed a new Resolution, 1538, which undertook to restore

the old order.

IV. Apprrionat Finvprves

The important facts adduced at the hearing deserve spe-

cial mention as circumstances which serve to show clear

9a

Opinion of District Court of July 31, 1969

patterns of segregation reinforced by official action, and

which also show knowing and purposeful conduct.

1. All of the actions of the School Board here under con-

sideration occurred during the last ten years. Thus, they

took place long after the decision of the Supreme Court in

Brown v. Board of Education of Topeka, 347 U.S. 483, 74

S.Ct, 686, 98 L.Ed. 873 (1954).

2. The School Board Study Committee of 1964 and 1968

warned the members of the Board concerning the segrega-

tion trends and strongly recommended measures which

would avoid or remedy these conditions. The recommenda-

tions contained in the 1964 report* were, for the most part,

ignored, and this led to the appointment of a second im-

plementation Committee which once again was positive and

specific in its recommendations.

8. During the entire decade there was regular debate and

although resolutions were adopted, no effective action oc-

curred, and many of the actions which were taken had the

effect of intensifying rather than alleviating the segrega-

tion problem.

4. Assignment of Teachers, Schools with predominantly

minority student populations were shown to be staffed by

a greater proportion of teachers on probationary status,

teachers with less than ten years experience and minority

group teachers than were schools with a predominantly

Anglo student population.’

The Board has been reluctant to place Negro and Hispano

teachers in white schools because of concern over a possible

* Plaintiffs’ Exhibit 20.

* Plaintiffs’ Exhibits 92, 93, 94, 96, 8-G, 8-F, 9-G, 9-H.

10a

Opinion of District Court of July 31, 1969

lack of acceptance by the white community and because of

a fear of lack of support by some faculties and principals.‘

The Special Study Committee on Equality of Educational

Opportunity in the Denver Public Schools (March 1, 1964)

recommended that minority teachers be assigned through-

out the system. This recotimendation was never adopted

by the Board.

By established Board policy (Policy No. 1617 A) seniority

of service is given consideration in making transfers, and

teachers on probationary status are not to be transferred

except in unusual situations. Thus, teachers on probation

or with less seniority became entrenched i in the minority

schools where they currently serve.

This tendency to concentrate minority teachers in minor-

ity schools has helped to seal off these schools as permanent

5. Establishment of Barrett School. Plaintiffs’ Exhibits

40 and 41 show that Barrett was opened in a segregated area

in 1960; that it was located with conscious knowledge that

it would be a segregated school; that it has remained segre-

gated to the present date; and that the school would have

been desegregated under Resolution 1531. At the time

Barrett was built Stedman School, in a predominantly white

eee day ante east of Barrett, was operating

at approximately 20 percent over capacity. Yet Barrett

was built as a relatively small school and was not utilized

to relieve the conditions at Stedman.

6. Boundary Changes. In 1962, Superintendent Ober-

holtzer recommended certain boundary changes to the

Board. ee ee

“4 Plaintiffs’ Exhibit 20, Pg. D-13.

lla

Opinion of District Court of July 31, 1969

have affected the overcrowded conditions at Stedman. The

failure to make this proposed change tended to “aggravate

and intensify the containment of the Negro population in

Stedman at that time.“ Those boundary changes which

were made pertained to areas with Negro populations of

less than 3 percent. Other boundary changes not only

failed to alleviate Negro concentration; they added to it.

In some instances the changes resulted in transfer of white

students to white schools.

7. Concentration in Existing Schools. In June 1965, the

Board considered the addition of eight classrooms at Hallett

School. Hallett was at the time overcrowded and had a

predominantly Negro student population. Objection was

made to the additions on the grounds that they would in-

‘erease segregation at Hallett.‘ The Board nevertheless pro-

ceeded with the additional classrooms. The additions were

built despite Paragraph 1b (6) of Board Policy No. 1222C

and Paragraph 4 of Policy No. 5100, which provided that

ethnic and racial characteristics of a school population

should be considered in determining boundaries and that

steps should be taken to achieve more heterogeneous school

8. Mobile Classrooms. The building of 28 mobile units

in the Park Hill area in 1964 (at the time there were only

29 such units in all of Denver) resulted in a further con-

centration of Negro enrollment in Park Hill schools. The

retention of these units on a more or less permanent basis

tended to continue this concentration and segregation.

Transcript, Pp. 180-81.

‘Transcript, Pg. 87.

12a

Opinion of District Court of July 31, 1969

9. Effect of Resolutions 1520, 1524 and 1531. Had the

reseinded resolutions been implemented, Dr. Bardwell esti-

mated (based on 1968 enrollment figures) that the “segrega-

tion index” in senior high schools would have decreased

from 50 to 28; that the index in junior high schools would

have decreased from 65 to 35; and that the decrease in the

index for elementary schools would have been from 60 to

43 which, he testified, would approximately result in de-

segregation of elementary schools.

10. The above noted Board actions must be considered

in the light of the trend toward increased segregation in

northeast Denver schools (for example, between 1960 and

1966 Stedman increased from 4 percent Negro to 89 per-

cent Negro; in that same period Hallett increased from 1

ban Negro to 7⁵ percent Negro).

11, . valesinativn eck ofthe Beard-wes

the June 9 rescission of Resolutions 1520, 1524 and 1531.

Four members of the Board voted to rescind the resolutions

and adopted Resolution 1533, which embraced policies in

derogation of the previous policies as expressed in the men-

tioned resolutions. The majority of the Board (Board

members Voorhees, Noel and Amesse voted against it)

acted officially to reject the integration effort and to restore

and perpetuate segregation in the area. Although this was

carried out in response to what was called a voter mandate,

there can be no gainsaying the purpose and effect of the

action as one designed to segregate.

J r ee wd

or odious intent. At the same time, it was action which

was taken with knowledge of the consequences, and the con-

sequences were not merely possible, they were substantially

13a

Opinion of District Court of July 31, 1969

certain. Under such conditions the action is unquestionably

wilful.’

V. Tae Appticaste Law

The foundation stone in any case involving discrimina-

tion in public schools is the Constitution of the United

States and, in particular, the Equal Protection Clause of the

Fourteenth Amendment to the Constitution. That Clause,

in guaranteeing to every citizen the equal protection of the

laws, forbids state action which results in unreasonable

classifications and deprivations. It prohibits arbitrary

classifications which bear no rational relation to any valid

governmental purpose.

The history of modern case law 5 with the invalid

discrimination resulting from school segregation dates

from 1954, the year in which the Supreme Court handed

down Brown v. Board of Ed., 347 U.S. 483, 74 S. Ct. 686.

The Supreme Court there held that segregation in public

schools violated the Equal Protection Clause. However,

the case certainly went much further than this. The Court

plainly stated that segregated schools are incapable of pro-

viding quality education and also said that the effect of

segregation in the school system was to place an indelible

stamp of inferiority on those Negro children who were

compelled to attend “Negro” schools. Thus, the clear im-

port of the Brown decision is that neither a state nor its

agencies may establish, maintain or lend support to a

system of segregated public education. Furthermore, if the

state or any of its agencies prior to or after Brown take any

action which creates or furthers segregation, a positive

duty arises to remove the effects of such de jure segregation.

— —bꝗ

Restatement of Torts, 5 500, comments f and g at 1296 (1934).

14

Opinion of District Court of July 31, 1869

Admittedly, the facts of the case at bar are different from

Brown, but the legal implications of the Brown case are

fully applicable here. These legal implications have been

considered in two opinions of our Court of Appeals. The

first of these cases, Downs v. Board of Ed., 336 F. 2d 988

(10th Cir., 1964), dealt with the Kansas City school system.

Until 1951 this school system had been segregated by law

and, at the time that Brown was decided, the schools re-

mained substantially segregated. Thereafter, the school

board took affirmative steps to alleviate the situation

created by the prior policy of segregated schools. The trial

court found that the board had acted in good faith to re-

move segregation in the school system and that the mini-

mum requirements of Brown had been met. The board had

also undertaken to change certain school district boundaries

and these changes had the effect of aggravating segregation

in at least one of the city’s junior high schools. The trial

court held that the board’s action did not violate the Four-

teenth Amendment since the boundary change was made

in good faith and not for the purpose of promoting or

maintaining segregation.

In affirming the district court, the Court of Appeals laid

down guiding principles to be applied in future cases. It

distinguished two factual situations: (1) Where the school

board takes affirmative action which has the effect of pro-

moting or maintaining segregation ; and (2) Where because

of population shifts and housing patterns certain schools

have become segregated—so-called de facto segregation.

As to the former, the Court said that it must appear that

the board’s action not only resulted in aggravating segrega-

tion, but also that the board acted purposefully with this

object in mind. As to the latter, the Court said that the

better rule was that there is no affirmative duty to integrate

15a

Opinion of District Court of July 31, 1969

races in the public schools.* The trial court in Downs had

found that the school board in that case had made a good

faith attempt to conform to the law. The Circuit Court

was reluctant to overturn these findings since the district

court had heard the evidence.

In Board of Ed. of Oklahoma City Public Schools, ete. v.

Dowell, 375 F.2d 158 (10th Cir. 1967), the Tenth Circuit

16

Opinion of District Court of July 31, 1969

trial court and the Tenth Circuit read the Brown decision

as requiring affirmative action to remove segregation which

had been purposefully caused by prior actions of the school

board. The opinion by Judge Hill saw nothing new in a

court of equity taking positive steps to integrate the

schools. 1 225

It is sufficient to say that we are not here faced with the

kind of simple or innocent de facto segregation which was

found to exist in Downs. We have seen that during the ten

year period preceding the passage of Resolutions 1520, 1524

and 1531, the Denver School Board has carried out a

segregation policy. To maintain, encourage and continue

segregation in the public schools in the face of the clear

mandates of Brown v. Board of Ed. cannot be considered

innocent. The many cases decided subsequent to Brown,

including our own Circuit’s Board of Ed. v. Dowell, impose

an affirmative duty on the School Board to take positive

steps to remove that segregation which has developed as a

result of its prior affirmative acts. In response to this duty,

the Denver School Board passed Resolutions 1520, 1524 and

1531. In light of Brown and Dowell, the effort of the Board

to renounce this constitutional duty by rescission must be

rejected as arbitrary state legislative action.

The defendants have alluded to the fact that Resolution

1533 represents the will of the people, and that any action

taken by this Court which would adversely affect the Reso-

lution would frustrate that will. But as we have seen Brown

v. Board of Ed. and all of the subsequent cases hold that

equal protection of the laws is synonymous with the right

to equal educational opportunities and that segregated

schools can never provide that equality. The constitutional

protections afforded by the Bill of Rights and the Four-

teenth Amendment were designed to protect fundamental

17a

Opinion of District Court of July 31, 1969

rights, not only of the majority but of minorities as well,

even against the will of the majority. The effort to accom-

modate community sentiment or the wishes of a majority of

voters, although usually valid and desirable, cannot justify

abandonment of our Constitution. Reitman v. Mulkey, 387

U.S. 369, 87 S.Ct. 1627, 18 L. Ed. 2d 830 (1967); Lucas v.

Forty-Fourth General Assembly, 377 U.S. 713, 84 S.Ct.

1459, 12 L.Ed.2d 632 (1964).

It is to be emphasized finally that this present case, except

for the presence of clear evidence of purpose manifested

by the precipitate rescission, is by no means novel. The

right to equality in education has, since Brown, become

recognized as a sensitive constitutional right. Courts

throughout the country have taken positive, affirmative

steps in order to uphold these rights. In our own Circuit,

both the Downs and Dowell opinions have clearly identified

and explained the governing legal principles. In other

jurisdictions, United States Courts have granted broad

affirmative relief in such situations, including orders re-

quiring the adoption of detailed plans for segregation.’®

In this case, the Supreme Court struck down a California con-

Stitutional amendment on the

repeal of a positive action

See, ¢.g., United States v. School Dist. 151, 286 F.Supp. 786

N. D. II.), af d., 404 F.2d 1125 (7th Cir. 1968) ; Coppedge v.

_ Franklin County Bd. of Ed., 273 F.Supp. 289 (E. D. N. Car.), af’d.,

_ 894 F.2d 410 (4th Cir. 1968) ; Hobson v. Hansen, 269 F.Supp. 401

D.. 1967), aff'd sub nom., Smuck v. Hobson, 408 F.2d 175

9.0. Cir. 1969) ; Blocker v. Board of Ed., 226 F.Supp. 208 (E. D.

N.. 1964) ; Taylor v. Board of Ed., 191 F.Supp. 181 (S.D.N.Y.),

2 d., 294 F.2d 36 (2d Cir. 1961).

18a

Opinion of District Court of July 31, 1969

In the present case, this Court has held only that the Denver

School Board may not constitutionally take action which

perpetuates segregation, and so it sets no new precedent.

In determining that the plaintiffs are entitled to the

preliminary relief sought, we are not to be understood as

holding that Resolutions 1520, 1524 and 1531 are exclusive.

It is true that the case is extraordinary in that there are

only two plans presented, one calling for integration and

one for segregation. The status quo has the effect of restor-

ing the integration plan. However, the Board is by no

means precluded from adopting some other plan embodying

the underlying principles of Resolutions 1520, 1524 and

1531.

VI. Conctusion

Under the Fourteenth Amendment the plaintiffs, as eiti-

zens of the United States, have the right to be protected

from official action of state officers which deprives them of

equal protection of the laws by segregating them because

of their race. The denial of an equal right to education is

a deprivation which infringes this constitutional guarantee.

The precipitate and unstudied action of four of the mem-

bers of the Board rescinding and nullifying the school

integration plan, which plan had been adopted after almost

ten years of debate and study, and the adoption in its place

of a substitute pies which. would have had the effect. of

lans were the Court of

cool Baatd of .

SOUL) 26, 876 Prod 158 (iow Gs 1967)

In genen Creut Judge Wright, sitting by, asignment in Dis

trict Court, adopted an intricate and detailed integration plan.

19a

ö „ of District Comet of July 81, 1969

.. ut km a chilling

effect upon their rights; it had a freezing effect. Under the

law of the case, we have no alternative. The action taken

must be ruled unconstitutional, and the proposed action

must be enjoined. _

The case is a proper one for injunctive relief because (1)

Plaintiffs have no adequate remedy at law; (2) Plaintiffs

would suffer irreparable injury if relief were denied; and

(3) Plaintiffs will probably succeed at trial, at least on the

cause of action under consideration.

The motion for preliminary injunction is granted.

Opinion of District Court of August 14, 1969

"UNITED STATES DISTRICT COURT

D. Cororapvo

Civ. A. No. C-1499

Ang. 14, 1969.

Wureep Keyes, individually and on behalf of

Cr Kzyzs, a minor, et al.,

Plaintiffs,

— a

ee ee et al.,

Defendants.

bras, Fixbrxos, Concivsions anp TemPoRARY

InsuNCTION

WILIA E. Dori, District Judge.

This case is before the Court following remand issued

by the United States Court of Appeals for the Tenth Cireuit

on August 7, 1969. In its opinion the Court of Appeals

(1) questioned the sufficiency in terms of specificity of our

injunctive order, and (2) directed that this Court consider

Title IV, § 407 (a) of the 1964 Civil Rights Act, 42 U.S.C.

§ 2000c-6(a). 7

A hearing was held on August 7, 1969. The Court, having

heard the arguments, does hereby issue a more specific

injunctive order. The question of the applicability of the

above mentioned statute will be considered in a supple-

mental opinion. Also, the following supplemental findings

Opinion of District Court of August 14, 1969

are added to the oral findings of fact given from the bench

on July 23, 1969, and the formal findings of fact contained

in this Court’s opinion issued on the 31st day of July, 1969.

The findings hereinafter set forth are directed to the

schools which received particular attention at the trial.

These findings undertake to describe the special circum-

stances surrounding these particular schools, and the con-

clusions which are to be drawn from these findings.

Frxorxos or Facr

Barrett Elementary School (Located at East 29th Avenue

and Jackson Street.)

1. Barrett Elementary School was opened in 1960. At

that time its student body was 89.6 percent Negro.

Presently the racial composition of Barrett is virtually

100 percent minority students (93% Negro, 7% Hispano).

Thus, from the time of its establishment until the present

Barrett has always been a segregated school.

2. The average percentage of Negro teachers in elemen-

tary schools in School District No. 1 as of September 1968

was 8.5 percent. In Barrett school the percentage of Negro

teachers is 52.6 percent. This concentration of Negro teach-

ers in a “Negro” school has further contributed to the

oategorization of Barrett as a segregated school.

3. Between 1950 and 1960 the Negro population, which

previously had been concentrated in an area known as “Five

Points“ began to expand to the east. By 1960 it had moved

up to Colorado Boulevard, a natural dividing line. This

trend of population was apparent long before the migra-

22a

Opinion of District Court of August 14, 1969

tion of the Negro population eastward to Colorado Boule-

vard was completed. With full knowledge of this popula-

tion trend and the fact that Barrett would be a segregated

school from the time of its establishment, the Board pro-

ceeded with and carried into. effect the plans for the build-

ing of that school.

4. At the time that Barrett was built, the School Board

created the eastern boundary of the Barrett district along

Colorado Boulevard. ‘Thus, the eastern boundary of Bar-

rett school district was made coterminous with the eastern

boundary of Negro population movement at that time. This

insured the character of Barrett as a segregated school.

5. When Barrett was built, Stedman Elementary School,

in a predominantly white area east of Colorado Boulevard

a few blocks from the Barrett site, was operating at ap-

proximately 20 percent over, capacity. Had the eastern

boundary of the Barrett district been set to the east of

Colorado Boulevard, it would have resulted in some integra-

tion of Barrett, while alleviating somewhat the overcrowded

conditions at Stedman. By establishing Colorado Boule-

vard as the eastern boundary of the Barrett district, the

Board declined to utilize Barrett to achieve these salutary

effects.. Furthermore, Barrett was built as a relatively

small school (capacity 450) which further prevented its use

to relieve overcrowded conditions in the neighboring

“white” Stedman. Se ers wee ee On GRRE Oe

a segregated school.

6. In light of the facts as they existed in 1960, there can

be no doubt that the positive acts of the Board in establish-

23a

Opinion of District Court of August 14, 1969

ing Barrett and defining its boundaries were the proximate

cause of the segregated condition which has existed in that

school since its creation, which condition exists at present.

7. The action by the Board with respect to the creation

of Barrett school was taken with knowledge of the con-

sequences, and these consequences were not merely possible,

they were substantially certain. Under such conditions

we find that the Board acted purposefully to create and

maintain segregation at Barrett.

8. The Board maintained the segregated condition which

it had created at Barrett by failing to take any action

to correct it between 1960 and 1969. On April 24, 1969, the

Board passed Resolution 1531 (operative September 1969)

which would have desegregated Barrett by altering school

district boundaries. Prior to the passage of Resolution

1531, Barrett was 93 percent Negro and 7 percent Hispano.

The racial composition in that school subsequent to imple-

mentation of 1531 would have been 73 percent Anglo, 24

percent Negro, 3 percent Hispano.

9. On June 9, 1969, the Board, by a 4 to 3 vote, rescinded

Resolution 1531 and thereby reaffirmed its prior policy of

maintaining and perpetuating segregation at Barrett. Al-

though this was carried out in response to what was called

a voter mandate in a school board election, there can be

no doubt that the purpose and effect of the action was

segregation.

Stedman Elementary School (This school is located at East

29th Avenue and Dexter Street, approximately 8 blocks east

of Barrett Elementary School.)

24a

Opinion of District Court of August 14, 1969

1. Stedman Elementary School was in 1960 a predom-

inantly “white” school, the student body being only 4 per-

cent Negro. However, as a result of Negro population

trends and rigid adherence to school boundaries by the

Board, by 1962 Stedman was 50-65 percent Negro.

2. In 1962 and for several years prior thereto, Stedman

had been overcrowded. Although Stedman could not be

considered a segregated school at that time, it was clear

by virtue of area population movement that it would become

segregated in the near future if immediate steps were not

taken to alleviate the overcrowding and stabilize the racial

composition. Seven boundary changes were proposed in

1962, three of which would have relieved overcrowding at

Stedman by placing the overflow in Smith, Hallett, and

Park Hill, each of which was predominantly Anglo at that

time. The Board rejected the three Stedman proposals,

adopting the other four which pertained to areas with

Negro populations of less than three percent. By refusing

to pass the proposed boundary changes for Stedman, over-

crowding was perpetuated and Negro students at that

school were prevented from attending nearby “Anglo”

schools.

3. By 1963 Stedman was only 18.6 percent Anglo and was

still overcrowded. In 1964, the Board adopted several

boundary changes, two of which had the immediate effect

of aggravating the segregated situation at Stedman by

transferring predominantly Anglo portions of the Stedman

district to other “white” schools in the area. First, a pre-

dominantly White“ portion of the Stedman zone was

detached to Hallett. Second, the Park Hill-Stedman op-

tional zone was transferred to Park Hill. This area was

25a

Opinion of District Court of August 14, 1969

approximately 96 percent Anglo, and represented that part

of the Stedman district with the lowest Negro population.

These changes did not significantly reduce overcrowding

at Stedman. Rather, they tended to further segregate

Stedman by removing the option open to many Anglo

students to attend Stedman and preventing Negro students

at that school from attending the predominantly Anglo

schools in Park Hill.

4, Between May 1964 and May 1965, four mobile units

were placed at Stedman to relieve the overcrowded condi-

tions. This, like the previous actions of the Board with

respect to school boundaries in the Stedman district, had

the effect of preserving the Anglo character of certain Park

Hill schools and the segregated status of Stedman.

5. As of 1968, Stedman was 94.6 percent Negro and 3.9

percent Anglo. On April 24, 1969, the School Board passed

Resolution 1531 which was designed to alleviate the contain-

ment of Negro students in Stedman which had resulted

from the Board’s conscious efforts to preserve the Anglo

character of other Park Hill schools. While 1531 would

not have substantially reduced the percentage of Negro

students at Stedman, it did provide that an additional 120

Negro children were to be transported from Stedman to

predominantly Anglo schools (prior to this time 286 Sted-

man students were being bussed to Force, Schenck, and

Dension schools). This would have provided an additional

outlet for Negro children at Stedman, enabling them to

attend a racially integrated school, and at the same time

would have removed the need for the four mobile units.

This was designed to relieve and mitigate the intense

segregation condition at Stedman as well as to relieve over-

a .

nie

ah

Seg

26a

Opinion of District Court of August 14, 1969

6. On June 9, 1969, the School Board repealed Resolu-

tion 1531. The natural and probable consequence of the

Board’s action was to continue the containment of Negro

students at Stedman and to reassign Negro children who

would have attended an integrated school under Resolu-

tion 1531 to the segregated Stedman.

7. The actions of the Board with respect to boundary

changes, installation of mobile units and repeal of Resolu-

tion 1531 shows a continuous affirmative policy designed

to isolate Negro children at Stedman and to thereby pre-

serve the “white” character of other Park Hill schools.

Park Hill and Philips Elementary Schools (Park Hill is

located at 5050 East 19th Avenue, which is approximately

8 blocks south and 6 blocks east of Barrett. Philips is lo-

cated at 6550 East Ast Avenue, which is 7 blocks south

and 25 blocks east of Barrett.)

—

1. In 1960 both Park Hill and Philips Elementary

Schools. were overwhelmingly Anglo in racial composition.

Despite continued Negro population movement into these

school districts, Park Hill and Philips presently continue

to have a majority of Anglos in the student body. This

characteristic of both schools is due at least in part to

the efforts of the Board to prevent the use of Park Hill

and especially Philips to relieve the overcrowding at Sted-

2. By 1968 the racial composition of Park Hill was 71.0

percent Anglo. 23.2 percent Negro and 3.9 percent Hispano.

The racial composition of Philips was 55.3 percent Anglo,

36.6 percent Negro and 5.2 percent Hispano. The prob-

27a

Opinion of District Court of August 14, 1969

able result of maintaining rigid school boundaries in these

districts combined with the present trend of Negro popula-

tion movement would be the transition of Philips and Park

= sto substantially segregated schools.

3 on April 24, 1969, the Board passed Resolution 1531

which would have stabilized the racial composition of these

two schools (Park Hill would have been stabilized at 79

percent Anglo, 13 percent Negro, 8 percent Hispano;

Philips would have been stabilized at 70 percent Anglo,

22 percent Negro, 8 percent Hispano), by a system of

transporting some 70 students at Park Hill to Steele and

Steck Elementary Schools and 80 students from Philips

to Ashley and Palmer Elementary Schools. Also, 80 stu-

dents would be transported to Philips from Palmer and

Montclair Elementary Schools. Resolution 1531 recognized

the interrelationship between Philips and Park Hill schools

and Stedman, Barrett and Hallett. Thus, even though

Philips and Park Hill were not segregated as of 1969, the

Board felt that effective desegregation could take place at

Barrett, Stedman and Hallett only if other Park Hill area

schools were included in a total plan.

4. The School Board repealed Resolution 1531 on June

9, 1969. The effect of this action was to restore the origi-

nal boundaries in the Park Hill and Philips districts, the

probable result of which would be a gradual increase of

Negro students into Park Hill and Philips schools ul-

timately approaching a segregated situation. Furthermore,

by repeal of 1531 Park Hill and Philips would be reestab-

lished as buffers against the influx of Negro children into

other Anglo schools in the Park Hill area. Stedman, Bar-

rett and Hallett would be returned to their status as over-

iM

28a

Opinion of District Court of August 14, 1969

crowded, segregated schools with no effective outlet pro-

F

and Palmer.

5. In light of the natural and probable segregative con-

sequences of removing the stabilizing effect of Resolution

1531 on Park Hill and Philips and reestablishing the origi-

nal district boundaries, the Board must be regarded as

having acted with a purpose of approving those conse-

quences.

25. These boundary changes for Park Hill and Philips

are necessary to the success of the entire plan called for in

Resolution 1531.

Hallett Elementary School (Hallett is located at 2950

Jasmine Street, 20 blocks east of Barrett.)

3 The Negro enrollment at Hallett Elementary School

has increased from approximately one percent in 1960 to

90 percent in 1968.

2. In 1962 several boundary changes in the Park Hill

elementary school districts were proposed and all but three

were adopted by the Board. One of the three boundary

proposals considered but not adopted would have detached

part of the Stedman district to Hallett. At that time Sted-

man was 50-65 percent Negro and was overcrowded,

whereas. Hallett was operating under capacity and was ap-

proximately 85-95 percent Anglo. The adoption of this

boundary change would have relieved some overcrowding

at Stedman while increasing Negro enrollment at Hallett.

By refusing to adopt the change, Negro students were con-

fined in an overcrowded, segregated school and were de-

nied the opportunity of attending an integrated school.

: 29a

Opinion of District Court of August 14, 1969

3. One of the 1962 boundary changes which was adopted

assigned the Hallett-Philips optional zone to Philips. This

reassigned zone was predominantly Anglo and Philips was

at this time virtually 100 percent Anglo. There was no

problem of overcrowding at either Hallett or Philips. All

that was accomplished was the moving of Anglo students

from a school district which would gradually become pre-

dominantly Negro to one which has remained predom-

inantly Anglo.

4. By 1964 Hallett was 68.5 percent Anglo. A boundary

change in that year detached a predominantly Anglo area

from the Stedman district to Hallett, and detached an 80

percent Anglo area from Hallett to Philips. This latter

area constituted the section of highest Anglo concentra-

tion in the Hallett district. After the 1964 boundary

changes, Hallett was only 41.5 percent Anglo. This de-

crease in Anglo enrollment was due in part to the transfer

of the predominantly “white” portion of Hallett’s at-

tendance area to Philips.

5. In 1965 four mobile units were constructed at Hallett.

Shortly thereafter the Board also approved the construc-

tion of additional classrooms. At this time Hallett was

approximately 75 percent Negro. The effect of the mobile

units and additional classrooms was to solidify segregation

at Hallett increasing its capacity to absorb the additional

_ influx of Negro population into the area.

6. Resolution 1531, adopted by the Board on April 24,

1969, provided that the Superintendent develop and insti-

_ tate plans to make Hallett a demonstration integrated

school by use of voluntary transfer of pupils. The pro-

30a

Opinion of District Court of August 14, 1969

posed plan would have transferred 500 Anglo students to

Hallett while transporting 500 Hallett pupils to predom-

inantly Anglo schools. This would have decreased the

Negro concentration at Hallett from approximately 90

percent to shout 40 percent.

% —. e theirs.

scission of Resolution 1531, also provides for a voluntary

exchange plan“ for Hallett. Although this latter resolution

does not refer to the purpose of integration, as did Resolu-

tion 1531, its intention seems to be substantially similar

to that of 1531 with regard to the Hallett situation.

Smile Junior High School (Smiley is located at 2540

Holly Street.)

1. In 1968 Smiley Junior High School was 23.6 percent

Anglo, 71.6 percent Negro and 3.7 percent. Hispano. The

elementary school feeders for Smiley are Hallett (10.1

percent Anglo, 84.4 percent Negro, 3.7 percent Hispano) ;

Park Hill (71 percent Anglo, 23.2 percent Negro, 3.9 per-

cent Hispano); Smith (2.8 percent Anglo, 94.9 percent

Negro, 1.6 percent Hispano); Philips (55.3 percent Anglo,

36.6 percent Negro, 5.2 percent Hispano); Stedman (3.9

percent Anglo, 92.4 percent Negro, 2.9 percent Hispano) ;

Ashley (85.8 percent Anglo, 6.4 percent Negro, 5.8 percent

Hispano) ; and Harrington (5.0 percent Anglo, 77.7 pereent

Negro, 15.2 percent Hispano). Because of Negro popula-

tion movement into this area, it is substantially certain that

continuance of the boundaries as reestablished by repeal

oe mene sen Soar ae eet b

ing almost completely oes te in the future.

3la

Opinion of District Court of August 14, 1969

2. Smiley has the second highest number of minority

teachers of any junior high school in the city. There are

23 Negro and Hispano teachers at Smiley, while no other

junior high school, with the exception of Cole, has more

than six teachers from racial minority groups.

3. In light of the racial composition of the Smiley stu-

dent body and faculty in 1968, the racial composition of the

Smiley feeders, and Negro population movément into the

area, we find that in 1968 Smiley was a segregated school.

4. In 1969 the School Board undertook to correct the

segregated situation at Smiley by the adoption of Resolu-

tions 1520 and 1524. These Resolutions were designed to

desegregate Smiley by a substantial alteration of junior

high school boundary lines. Had the Resolutions been

implemented, the racial composition of Smiley would have

been 72 percent Anglo, 23 percent Negro, and 5 percent

Hispano. *

5. On June 9, 1969, the Board repealed Resolutions 1520

and 1524. The effect of this repeal was to reestablish

Smiley as a segregated school by affirmative Board action.

At the time of the repeal, it was certain that such action

would perpetuate the racial composition of Smiley at over

75 percent minority and that future Negro population

movement would ultimately increase this percentage. Thus,

the Board acted with full knowledge of exactly what the

consequences of the repeal would be. We, therefore, find

that the action of the Board in rescinding Resolutions 1520

and 1524 was wilful as to its effect on Smiley.

SA oy * a

—

32a

Opinion of District Court of August 14, 1969

East High School (East is located at 1545 Detroit Street.)

1. Before passage of Resolution 1520, East High School

was approximately 54 percent Anglo, 40 percent Negro

and 7 percent Hispano, Resolution 1520 would have re-

duced the racial minority enrollment at East to 32 percent.

Neither before nor after the passage of 1520 could East

be considered a segregated school.

2. The boundary. changes embodied in Resolutions 1520,

1524, and 1531 would have indirectly affected. the racial

composition of East through changes in East's feeder

schools. Rescission of these Resolutions might, through

the feeder system, result in a segregated situation at East

in the future.

Summary or Fixpines

All of the elementary schools discussed in the supple-

mental findings set forth above are located in the Park

Hill area. There is a high degree of interrelationship among

these schools, so that any action by the Board affecting the

‘ racial composition of one would almost certainly have an

effect on the others. Furthermore, since all of these ele-

mentary schools operate as feeders for Smiley Junior High

School (with the exception of Barrett), any factors affect-

ing the racial composition of the elementary schools will

also have a similar effect on Smiley. It is significant to

note that Board actions between 1960 and 1969, such as

the 1962 and 1964 boundary changes, dealt with the entire

Park Hill area and had some effect on each school in that

section of the city. Thus, the Board itself has continu-

ously recognized the interrelationship of schools in north-

east Denver.

33a

Opinion of District Court of August 14, 1969

Between 1960 and 1969 the Board’s policies with respect

to these northeast Denver schools show an undeviating

purpose to isolate Negro students first in Barrett, and

later in Stedman and Hallett while preserving the Anglo

character of schools such as Philips and Park Hill. The

ultimate effect of the Board’s actions and policies in the

face of a steady influx of Negro families into the area was

to create and maintain segregated situations at Barrett,

Stedman, and Hallett which ultimately led to a substan-

tially segregated situation at Smiley.

In adopting Resolutions 1520, 1524 and 1531, the Board

recognized its constitutional responsibility to desegregate

schools in northeast Denver. These Resolutions were

adopted by a five to two majority following the recom-

mendations of both the Special Study Committee created

in 1962 and a second committee created in 1966, and recom-

mendations contained in the report of Dr. Gilberts and the

Board staff submitted in October 1968. The reports of

the 1962 and 1966 committees made clear that the con-

tinued rigid adherence to the established school boundary

lines had led to segregation in several Park Hill schools.

These Resolutions constituted legitimate legislative action

designed to remove the ségregation in Park Hill schools

by means which were both moderate and reasonable in light

of existing conditions.

Resolutions 1520, 1524, and 1531 were designed to relieve

segregation in Barrett, Stedman, Hallett and Smiley by

_ altering school district boundaries. Among other things

these Resolutions would have transferred heavily concen-

_ trated Negro portions of the Barrett, Park Hill, Philips

and Smiley districts to predominantly Anglo schools, while

_ transporting a substantial number of Anglo students to

1 the segregated schools. Segregation at Hallett and Sted-

Opinion of District Court of August 14, 1969

the will of the majority of the electorate.

and which furnishes little promise.

Coxciusions or Law

tute de jure segregation.

tion.

man was to be relieved by a vigorous policy of voluntary

bussing. Although at the time these Resolutions were

passed Philips and Park Hill schools were not segregated,

the Board recognized that they were key elements in deal-

ing with the interrelated situation in northeast Denver

and that any overall scheme for desegregating Barrett,

Hallett, Stedman and Smiley would necessarily require

affirmative action with respect to Park Hill and Phillips.

On June 9, 1969, the Board rescinded Resolutions 1520,

1524 and 1531. This action was taken with little study and

was not justified in terms of educational opportunity, edu-

cational quality or other legitimate factors. The only stated

purpose for the rescission was that of keeping faith with

The effect of the rescission was to restore and perpetuate

the status quo as it existed in northeast Denver prior to

the passage of Resolutions 1520, 1524 and 1531. This status

quo was one of segregation at Barrett, Hallett, Stedman

and Smiley. As a replacement for proposals embodied in

Resolutions 1520, 1524, and 1531, the Board adopted Reso-

lution 1533 which in essence provides for desegregation on

a voluntary basis, a program which has been unsuccessful

1. The policies and actions of the Board prior to the

adoption of Resolutions 1520, 1524 and 1531, which conduct

is specifically described in the foregoing findings, consti-

, The adoption of Resolutions 1520, 1524 and 1531 was

a bona fide attempt of the Board to recognize the constitu-

tional rights of the persons affected by the prior segrega-

fee Opinion of District Court of August 14, 1969

2 2 Tue resciseion of Resolutions 1520, 1524 and 1531 was

ae ive act which had for its purpose restoration of

„ quo and was designed to perpetuate segrega-

uon in the affected area. This act in and of itself was an

eee segregation. It was unconstitutional and

4. Section 407 (a) of the Civil Rights Act of 1964, Title

42 U.S.C. § 2000c-6(a) has been fully considered. It does

not apply to a private civil rights action asserting viola-

tion of the Constitution. A supplemental opinion will ex-

pound the reasons in support of this conclusion.

Pretiminary InzUNOCTION

This matter having come on for hearing upon remand by

the Court of Appeals for the Tenth Circuit on the motion

of plaintiffs for a preliminary injunction, and the Court

having heard the testimony of the witnesses, having re-

viewed and considered the exhibits in evidence herein, and

having heard the statements of counsel:

The Court finds that:

1. The Court has jurisdiction over the subject matter

of this action under 28 U. S. C. Sections 1343(3) and 1343(4).

This is a civil action authorized by law and arising under

Title 42 U.S.C. Section 1983 and the Fourteenth Amend-

ment of the Constitution of the United States;

2. The Court has jurisdiction over the parties herein;

3. Plaintiffs and the classes which they represent have

no adequate remedy at law;

4. Unless this preliminary injunction issues, plaintiffs

and the classes which they represent will suffer irreparable

injury ; :

36a

Opinion of District Court of August 14, 1969

5. Plaintiffs and their classes have demonstrated a rea-

.] ann

a full trial of the merits herein.

Based upon the foregoing findings together with those

contained in the opinion heretofore rendered it is

Ordered, adjudged and decreed that the motion for a

temporary injunction should be and the same is hereby

ranted. to the following exteiite

The defendants, their agents and servants are enjoined

and restrained, during the pendency of this action, from

any conduct which would modify the status quo as it ex-

isted prior to June 9, 1969, in respect to acquisition of

equipment, destruction or relocation of documents, writings

and memoranda, and are further enjoined and restrained

. from implementing Resolution 1533, insofar as that Resolu-

tion is an integral part of the rescission of Resolutions

1520, 1524 and 1531, and would seek to restore the segre-

gated conditions which existed prior to the adoption of

Resolutions 1520, 1524 and 1531.

The defendants, their agents and servants are further

ordered to make effective the following integration policies :

Resolution 1520 insofar as it applies to Smiley Junior

High Sehool (specifically, paragraphs six and seven of

the boundary changes «embodied in the said Resolution

1520) ;

Resolution 1524 insofar as it applies to Smiley Junior

High School (specifically, paragraphs one through nine,

inclusive, of the boundary changes embodied in Resolution

1524) (paragraphs eight and nine being necessary to the

desegregation of Smiley Junior High School). Paragraphs

A, B, C, and D of Resolution 1524, which deal with Cole

37a

Opinion of District Court of August 14, 1969

Junior High School, are not here considered, but nothing

herein contained is intended to prevent the implementa-

tion of those boundary changes. Ruling on these changes

is reserved until the trial.

Resolution 1531 insofar as it applies to boundary changes

concerning Barrett, Park Hill and Philips Elementary

Schools, and insofar as it directs the Superintendent to

establish Hallett Elementary School as a demonstration

integrated school through voluntary transportation and to

continue the practice of transporting students from Sted-

man Elementary School to relieve overcrowding and to

permit the removal of mobile classroom units at that school.

Resolutions 1520, 1524 and 1531 do not expressly call

for compulsory transportation; however, the Board has

had for many years and now has a policy of transporting

students who live a certain distance from their schools.

Such transportation is probably necessary in order to carry

out this decree, but nothing in this order shall be construed

to require the Board to use such transportation if it can

be dispensed with.

Nothing in this order shall prevent the School Board

from proposing and submitting to this Court any other

plan for integration.

Rulings concerning East High School and Cole Junior

High School are hereby reserved pending consideration

of this action at the trial on the merits.

This temporary, injunction shall continue during the

pendency of this suit and until the action is tried on its

merits. —

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39a

Opinion of District Court of August 14, 1969

Orpion As to Appiicasmiry or Szorion 407 (a)

or THE Civi Ricuts Aor or 1964

The Court of Appeals for the Tenth Circuit has re-

manded this case in part for this Court’s prior determina-

tion of the applicability and effect of Section 407(a) of the

Civil Rights Act of 1964 (42 U.S.C. 9 2000c-6(a)), which

Section contains the following proviso:

provided that nothing herein shall empower any official

or court of the United States to issue any order seeking

to achieve a racial balance in any school by requiring

the transportation of pupils or students from one school

to another or one school district to another in order to

achieve such racial balance, or otherwise enlarge the ex-

isting power of the court to insure compliance with

constitutional standards.

We have considered the arguments of counsel, both oral

and in briefs. We conclude that the above proviso does

not limit the power of this Court to direct the School Board

to implement Resolutions 1520, 1524 and 1531 to the extent

ordered.

Section 407 (a) refers to actions brought by the Attorney

General of the United States under the authority granted

him by that Section. The proviso appears in this context,

and thus on its face does not apply to a case such as this,

which is not brought by the Attorney General. Defendants

call our attention to a comment made by then Senator

Humphrey during Congressional debate on the Act to the

effect that the proviso applies to the entire 1964 Civil Rights

Act. Assuming that construction to be correct, the instant

40a,

Opinion of District Court of August 14, 1969

case is not brought under the 1964 Civil Rights Act but

rather under 28 U.S.C. § 1343 and 42 U.S.C. § 1983.

The legislative history of Section 407 (a) indicates that

the proviso meant only that Congress was not taking a

position on the question of the propriety of transportation

to achieve racial balance in a case of de facto segregation.

See United States v. Jefferson County Bd. of Ed.; 372 F.2d

836, 880 (5th Cir. 1966), af d on rehearing with order modi-

fied, 380 F.2d 385 (5th Cir. 1967) (en bance).

We have concluded that the instant case is one in which

the Board has actively contributed to the segregated condi-

tions found to exist. The act applies, if at all, to a de facto

segregation situation. The Court of Appeals for the Sev-

enth Circuit made this distinction in United States v. School

District 151 of Cook County, IIlinois, 404 F.2d 1125 (7th

Cir. 1968), where it was held that the proviso in Section

407(a) had no application where transportation was “not

done to achieve racial balance, although that may be a re-

sult, but to counteract the legacy left by the Board’s history

of discrimination.” 404 F.2d at 1130. Counteracting a

legacy is precisely what the order in the instant case is

intended to do.

The language of the proviso indicates that its purpose

was to prevent the implication that Section 407(a) enlarged

the powers of the federal courts. The proviso states that the

Section grants a court no power to order transportation

to achieve racial balance, nor does the Section “otherwise

enlarge the existing power of the court to insure compli-

ance with constitutional standards.” The equitable powers

of the courts in directing compliance with constitutional

mandates exist independent of the 1964 Civil Rights Act.

United States v. Jefferson County Bd. of Ed., 372 F. ad 836,

4la

Opinion of District Court of August 14, 1969

880.(5th Cir. 1966). The proviso merely explains that Sec-

tion 407(a) is not to be construed to enlarge the powers of

the courts; it does not limit those powers.

It would be inconsistent to construe the proviso as a limi-

tation on the power of the courts to correct a deprivation

of rights which Section 407(a) itself is intended to remedy.

The Congressional policy behind the 1964 Act should not be

diluted by such a construction.

In United States v. School District 151 of Cook County,

Illinois, 286 F.Supp. 786 (N. D. III. 1968), the district court

considered the instant question and concluded:

That provision of 42 U.S.C. §2000c-6 which with-

holds from the courts the power to require transporta-

tion of pupils to overcome racial imbalance in public

schools must be construed to relate to so-called de facto

or adventitious segregation. It is inapplicable where,

as here, the existing segregation of pupils and teachers

is inseparable from the practices and policies of the

defendants. 286 F.Supp. at 799.

In affirming this construction of the statute the Court of

Appeals for the Seventh Circuit used the following strong

language:

Defendants next contend that they have no constitu-

tional duty to bus pupils, in the District, to achieve a

_. racial balance, It is true that 42 U.S.C. § 2000-6 with-

holds power from officials and courts of the United

States to order transportation of pupils from one

school to another for the purpose of achieving racial

balance. However, this question is not before us. Al-

though we recognize that past residential segregation

itself, in the District, severely unbalanced racially the

42a

Opinion of District Court of August 14, 1969

school population, the district court’s judgment is di-

rected at the unlawful segregation of Negro pupils

from their White counterparts which is a direct result

of the Board’s discriminatory action. Therefore, the

~ district court’s order is directed at eliminating the

school segregation that it found to be unconstitutional,

by means of a plan which to some extent will distribute

pupils throughout the District, presumably by bus.

This is not done to achieve racial balance, although that

may be a result, but to counteract the legacy left by

the Board’s history of discrimination.

The Constitution forbids the enforcement by the

Illinois School District of segregation of Negroes from

Whites merely because they are Negroes. The congres-

sional withholding of the power of courts in Section

2000c-6 cannot be interpreted to frustrate the constitu-

tional prohibition. The order here does not direct that

a mere imbalance of Negro and White pupils be cor-

rected. It is based on findings of unconstitutional, pur-

poseful segregation of Negroes, and it directs defen-

dants to adopt a plan to eliminate segregation and re-

frain from the unlawful conduct that produced it.

United States v. School District 151 of Cook County,

IIlin ois, 404 F. 2d 1125, 1130 (7th Cir. 1968).

Judge Wisdom, writing for the Court of Appeals for the

Fifth Circuit in the Jefferson County case, also considered

the applicability of the statute to a de jure case and deter-

mined that it did not apply.

The above are the sum total of court decisions on the

1 subject. However, they dispel any doubt as to its applica-

bility.

43a

Opinion of District Court of August 14, 1969

We add that in reevaluating the case in light of the stat-

ute and in reconsidering Resolutions 1520, 1524 and 1531,

we determined that the effort in 1520 to desegregate East

High School was not within the ambit of a preliminary

injunction either because of the statute or for the equally

good reason that the evidence as of now fails to disclose a

condition at East which merits a preliminary injunction.

44a

Opinion of District Court of March 21, 1970

UNITED STATES DISTRICT COURT

1 D. CoLorapo

Civ. A. No. C1499

March 21, 1970

Wurasp Kurns, individually and on behalf of Christi Keyes,

a minor, et al.,

Plaintiffs,

V.

Snoot, Distaiot Numser One, Denver, Cotonavo, the Board

of Education, School District Number One, Denver,

Colorado, William C. Berge, individually and as Presi-

dent, Board of Education, School District Number One,

Denver, Colorado, Stephen J: Knight, Jr., individually

and as Vice President, Board of Education, School Dis-

trict Number One, Denver, Colorado, James C. Perrill,

Frank K. Southworth, John H. Amesse, James D. Voor-

hees, Jr., and Rachel B. Noel, individually and as mem-

bers, Board of Education, School District Number One,

Denver, Colorado; Robert D. Gill individually and

as Superintendent of Schools, chool District Number

One, Denver, Colorado,

Defendants.

Mr. and Mrs. Douglas Barnett, individually and on behalf

of Jade Barnett, a minor, et al.,

Intervening Defendants. -

Memoranpum Orixiox anp Onpnn

Wurm E. Dovtz, District Judge.

This is an action in which plaintiffs, parents of children

attending Denver Public Schools, sue individually and on

45a

Opinion of District Court of March 21, 1970

behalf of their minor children. It is also brought on behalf

of a class and has proceeded as a Rule 23 class action.

The complaint contains numerous causes of action and

counts, but essentially it is complained that

(1) The Board of Education for School District No. One,

Denver, unconstitutionally rescinded certain resolutions

which were designed to desegregate specific schools within

the District;

(2) The named defendants have created and/or main-

tained segregated student bodies and faculties in many of

the schools in School District No. One;

(3) The said School District has provided an unequal

educational opportunity to students attending segregated

schools within the District.

Plaintiffs pray for a declaratory judgment that the above

acts are unconstitutional and also seek broad injunctive

relief prohibiting the defendants from continuing their

prior policies and requiring them to remove the effects of

In July 1969, an extensive trial was had on plaintiffs’

motion for a preliminary injunction as to their first claim

for relief, which claim alleged that the rescission of the

remedial School Board Resolutions 1520, 1524 and 1531 was

an unconstitutional act. This Court held that this attempted

rescission was in fact unconstitutional, and ordered that

Specified portions of Resolutions 1520, 1524 and 1531 be

effectuated pending full trial on the merits, Keyes v. School

_ District No. 1, Denver, Colorado, 303 F.Supp. 279 (D. Colo.),

Supplemental Findings and Conclusions, 303 F.Supp. 289

(D. Colo. 1969).

8

„

46a

Opinion of District Court of March 21, 1970

In February 1970, the case was tried on its merits. The

plaintiffs, the defendants and the intervening defendants

were fully heard. This was a trial which continued for

fourteen trial days. It produced over 2,000 pages of testi-

mony and several hundred exhibits. Thus, the case has been

fully tried with the exception of submission by the parties

of tangible plans. This phase of the case was deferred

pending decision on the issues involving alleged discrimina-

tion.

Plaintiffs’ first claim for relief deals solely with the pur-

pose and effect of the rescission of Resolutions 1520, 1524

and 1531. Plaintiffs’ second claim for relief consists of three

counts.’ The first count of the second claim alleges that

the Board of Education has purposely created and/or main-

tained racial segregation in certain schools within the Dis-

trict through boundary changes, school site selection and

the maintenance of the neighborhood school policy. The

second count alleges that the segregated schools within the

District are grossly inferior and provide an unequal educa-

tional opportunity for minority students; that these schools

do not even meet the separate but equal standard of Plessy

v. Ferguson and that the Board is obligated to remedy this

inequality regardless of its cause.

Finally, plaintiffs contend that several schools were

created and/or maintained as segregated schools by actions

of the Board, and that regardless of purpose or intent these

acts are unconstitutional. We will deal first with the schools

which were the subject of the preliminary hearing, consider-

ing the explanatory evidence offered at trial. Secondly, we

will consider the evidence which has been offered relative

1 The plaintiffs’ fourth count of the second claim for relief, based

upon maintenance of a “track system,” has been abandoned.

Jae

47a

Opinion of District Court of March 21, 1970

to segregation and discriminatory educational opportunity

in the core city schools and, finally, we will discuss possible

ii 5

I.

Plaintiffs’ first claim for relief alleges that the rescission

of School Board Resolutions 1520, 1524 and 1531 was un-

constitutional because its purpose and effect was to perpe-

tuate racial segregation in the affected schools. This claim

for relief was the subject of the hearing on plaintiffs’ mo-

tion.for preliminary injunction.

Resolutions 1520, 1524 and 1531, promulgated in 1969,

were designed to relieve segregation and the tendency

toward segregation in schools located in the Park Hill area

of Northeast Denver. These schools include Barrett, Sted-

man, Hallett, Smith, Phillips and Park Hill Elementary

Schools; Smiley and Cole Junior High Schools; and East

High School.

The evidence presented at the preliminary hearing has

been fully incorporated in the present record. We deem

it unnecessary to describe it in detail since it is fully set

forth in 303 F.Supp, 279, 289. A recap will, however, serve

to bring those proceedings into context.

Prior to. 1950, the Negro population of Denver was con-

dbentrated in a portion of the city known as “Five Points,”

Which is located west of Park Hill, Beginning in 1950, the

. Negro population began an eastward migration which, by

1960, had reached Colorado Boulevard, a natural dividing

Une. Since 1960, this migration has extended east of

Oolorado Boulevard into Park Hill. It is the acts of the

2 _ defendants, taken in the face of this population movement,

2 plaintiffs contend created the de jure segregation

Bes complained of in the first claim for relief.

48a

Opinion of District Court of March 21, 1970

Barrett Elementary School was opened in 1960 at East

29th Avenue between Jackson Street and Colorado Bou-

levard. The site selected for Barrett, along with the size

of the school and its established boundary lines insured

that it would be a segregated school from the date of its

opening. From these and other facts, we concluded at the

preliminary hearing, and we now affirm that holding, that

the School Board intended to create Barrett as a segregated

school and prevent Negro children from attending the pre-

dominantly Anglo schools east of Colorado Boulevard.

At trial (on the merits) defendants attempted to justify

Barrett on the ground that until 1964 the Board maintained

a racially neutral policy. Racial and ethnic data were not

maintained by the District, and race was not considered

as a factor in any decision. Defendants further stated that

(1) the Barrett site had been owned by the District since

1949 and a school was needed in that general vicinity; (2)

Colorado Boulevard was established as the eastern bound-

ary of the Barrett attendance zone because it was a six

lane highway and would have been a safety hazard were

children required to cross it; and (3) Barrett was built

relatively small because its main function was to relieve

overcrowding in existing schools rather than to accommo-

date any significant projected increase in area population.

The above factors fail to provide a basis for inferring

a ts justifiably’ thtiondl Durpobe eilsted for ‘the action

taken with respect to Barrett. First, the District owned

ether sites east of Colorado Boulevard.* Had a school been

‘When Barrett opened in 1960, ita stadent body was 60.6 per

cent Negro,

Dey: sestified thas at-the tiene Barvett-wae boilh,:the

School also owned sites at 35th and Dahlia and 36th and

F (Pe. ve. O07

49a

Opinion of District Court of March 21, 1970

built on one of these sites, it would have not only served

the Barrett area, it would also have been integrated.

- Second, the fact that in 1960 many elementary school sub-

districts included areas on both sides of busy thoroughfares

indicates that safety was not a primary factor in setting

school boundaries.‘ Third, because of Barrett’s small size

and the location of its subdistrict boundaries, Barrett re-

lieved overcrowding only at the two predominantly Negro

elementary schools west of Colorado Boulevard while

affording no relief to the overcrowded Anglo Stedman ele-

mentary school eight blocks east of the Barrett site.

Finally, at the time the decision to build Barrett at 29th

and Jackson was made public, a large portion of the Negro

community opposed the plan on the ground that Barrett

would clearly be a segregated school. This opposition was

made known to the Board, and, thus, the School Board

cannot now claim that it was uninformed as to the racial

consequences of its decisions. Indeed, at that time it was

the view of the school administration that it was precluded

from taking action which would have an integrating effect.

Between 1960 and 1965, several boundary changes were

made in the Park Hill area and mobile units were employed

50a

Opinion of District Court of March 21, 1970

in some Park Hill schools to relieve overcrowding.’ The

effect of these various acts on the racial composition of

Park Hill schools was identical. Each tended to isolate

and concentrate Negro students in those schools which had

become segregated in the wake of Negro population influx

into Park Hill while maintaining for as long as possible

the Anglo status of those Park Hill schools which still

remained predominantly white. From this uniform pattern

we concluded that the School Board knew the consequences

and intended or at least approved of the resultant racial

concentrations. We find nothing in the evidence presented

at the trial which detracts from this conclusion.

As noted in our former opinion, in 1962 a Special Study

Committee on Equality of Educational Opportunity in the

Denver Public Schools (Voorhees Committee) was created.

Following a thorough study, the Committee recommended

economic factors in establishing boundaries and locating

new schools, and that boundaries be set so as to establish

5la

Opinion of District Court of March 21, 1970

student population in Denver schools. This committee rec-

ommended that no new schools be built in Northeast

Denver; that a cultural arts center be established which

would be attended by students from various schools on a

half-day basis once or twice a week; that educational centers

be created; and that a superior school program be initiated

for Smiley and Baker junior high schools.

_. After more than six years of studying and discussing

these committee reports and recommendations, the Board

im 1968 passed the “Noel Resolution” (Resolution 1490).

The “Noel Resolution” noted that Policy 5100 recognized

that continuation of neighborhood schools had resulted in

the concentration of minority racial and ethnic groups in

some schools within the District and that these schools

provided an unequal educational opportunity. The Resolu-

tion directed the Superintendent of Schools to submit to

the Board a comprehensive plan for the integration of the

Denver Public Schools.

Pursuant to the “Noel Resolution’s” directive, the Super-

intendent submitted a report entitled “Planning Quality

Education—A Proposal for Integrating the Denver Public

Schools.” Between January and April 1969, the Board

studied the Superintendent’s report and passed three reso-

lutions—1520, 1524 and 1531. These Resolutions were the

product of intense study and discussion and were developed

only after considering some fourteen alternative plans.

Basically, their purpose was to eliminate segregation in the

Negro schools in Park Hill while stabilizing the racial com-

position of schools in transition. Thus, these Resolutions

constituted the first acts of departure from the Board’s

VVV

Opinion of District Court of March 21, 1970

salesmen ees . „

Hill schools.“

In May 1969, 8 School Board election was held. Much of

the campaign revolved around Resolutions 1520, 1524 and

1531, especially those portions which called for mandatory

had pledged to rescind Resolutions 1520, 1524 and 1531 were

elected. On June 9, 1969, the three Resolutions were re-

seinded and in their stead the Board passed Resolution

1533, which sought to achieve desegregation on a voluntary

basis.“ The rescissions were effectuated with little study

and were justified only as a response to the community

sentiment expressed in the School Board election.

We concluded at the hearing on preliminary injunction

that the adoption of Resolutions 1520, 1524 and 1531 was a

“bona fide attempt of the Board to recognize the constitu-

tional rights of the persons affected by the prior segrega-

tion.” 303 F.Supp. at 295. We further concluded, on the

other hand, that the act of the Board repudiating these salu-

tary policies was a legislative act and one of de jure segre-

The rescission of Resolutions 1520, 1524 and 1531 was

a legislative act which had for its purpose restoration

53a

Opinion of District Court of March 21, 1970

of the old status quo and was designed to perpetuate

g segregation in the affected area. This act in and of it-

» self was an act of de jure segregation. It was uncon-

© -stitutional and void. 303 F.Supp. at 295.

At trial defendants claimed that the three Resolutions had

in effect that no rights had ever vested under them. Yet

the only apparent purpose of the rescission was to maintain

a segregated condition at those schools which, but for the

rescission, would have been afforded considerable relief.

True, the resolutions had not been carried out, but extensive

preparations were in progress. In any event, this cannot

be made to turn on any property right analogy. Plaintiffs

were deprived of a right to seek and possibly to attain

e.

Our preliminary injunetion ordered full implementation

of Resolutions 1520, 1524 and 1531, except to the extent

that the Resolutions apply to East High School and Cole

Junior High School. We now hold that the rescission as it

applied to East and Cole was also unconstitutional. The

growing numbers of minority pupils and that this rapid

advance toward segregation threatened the high quality of

education which had always been characteristic of East

High School: It was, therefore, considered desirable to

reduce the number of minority students at East and to

am

Lede the pane erg 1620 the Fat Narr .

ior 0 eee would be to reduce

minority enrollment at East to 32 percent.

yes

5

54

Opinion of Distriot Court of March 21, 1970

school in transition. Left alone it will quickly become segre-

gated. The School Board, with the passage of Resolution

1520, was administering preventive justice. It was making

a reasonable and good faith effort to prevent East from be-

coming a segregated school.

Even though the racial composition at Cole Junior High

School was not significantly changed by Resolution 1524,

the Resolution did reduce the pupil membership at that

school by 275 students. The purpose of this change was to

decrease the pupil-teacher ratio at Cole and to make room

for a number of special programs to be instituted there.

This was also a good faith effort by the Board to improve

the quality of education at the predominantly Negro Cole.

The action of the Board in aborting and frustrating this

effort cannot stand.

We conclude then that the effect of the rescission of

Resolution 1520 at East High was to allow the trend toward

segregation at East to continue unabated. The rescission

of Resolution 1524 as applied to Cole Junior High was an

action taken which had the effect of frustrating an effort at

Cole which at least constituted a start toward ultimate im-

provement in the quality of the educational effort there.

It perhaps looked to ultimate desegregation. We must hold

then that this frustration of the Board plan which had for

its purpose relief of the effects of segregation at Cole was

unlawful. Resolutions 1520 and 1524, as they apply to

East and Cole, should be implemented.

In reaching the above conclusion, we have very carefully

considered both the majority and minority opinions in the

now famous Supreme Court decision of Reitman v. Mulkey,

387 US. 369, 87 S. Ot. 1627, 18 L. Ed. 2d 830 (1967), and have

concluded that both opinions fully support the position

which we have taken.

55a

Opinion of District Court of March 21, 1970

It will be recalled that Mulkey, like the case at bar, had

to do with the repeal of legislative acts which recognized

rights guaranteed by the equal protection clause of the

Fourteenth Amendment. These were in the form of Cali-

fornia statutes prohibiting the denial by individuals of the

right to be free and equal regardless of race. The plaintiffs

were tenants in apartment buildings, who were denied ac-

commodations. By initiative a constitutional amendment,

Proposition 14, was adopted. This seemingly innocuous

provision guaranteed to everyone unlimited right to de-

cline to sell or rent his property in his uncontrolled discre-

tion. Thus, Proposition 14, or Article I, Section 26, effec-

tively repealed the statute relied on by plaintiff.

The Supreme Court struck down the California amend-

ment adopted by popular vote and did so despite its neutral

visage. The Court held that it had the effect of involving

the state in “private racial discriminations to an unconstitu-

tional degree.” The majority opinion of Mr. Justice White,

in concluding that this was discriminatory state action, said:

None of these cases squarely controls the case we

now have before us. But they do illustrate the range

of situations in which discriminatory state action has

been identified. They do exemplify the necessity for

a court to assess the potential impact of official action

in determining whether the State has significantly in-

volved itself with invidious discriminations. Here we

are dealing with a provision which does not just repeal

an existing law forbidding private racial discrimina-

tions. Section 26 was intended to authorize, and does

authorize, racial discrimination in the housing market.

The right to discriminate is now one of the basic poli-

cies of the State. The California Supreme Court be-

Opinion of District Court of March 21, 1970

involve the State in private discriminations. We have

been presented with no persuasive considerations indi-

FFF

U.S. at 380-381, 87 S. Ot. at 1634.

Aux an io A anions weer

rescission of a previous enactment which extended and up-

held non-discriminatory rights. Our case is stronger than

Mulkey in that there the statute was brought to bear on

private transactions. Here, on the other hand, there can be

eee eee whether eee whieh Jeet

nating.

nah Ml tor We b i oiiida ir eating thar.

lan was that the constitutional provision was not state ac-

tion; that it was merely a proclamation of state neutrality

in transactions private in nature. The opinion of Mr. Jus-

tice Harlan states:

In the case at hand California, acting through the

initiative and referendum, has decided to remain ‘neu-

tral’ in the realm of private discrimination affecting

the sale or rental of private residential property; in

such transactions private owners are now free to act

in a discriminatory manner previously forbidden to

them. In short, all that has happened is that California

has effected a pro tanto repeal of its prior statutes

forbidding private discrimination. This runs no more

afoul of the Fourteenth Amendment than would have

California’s failure to pass any such antidiscrimination

statutes in the first instance. The fact that such repeal

was also accompanied by a constitutional prohibition

against future enactment of such laws by the California

57a

Opinion of District Court of March 21, 1970

_» Legislature cannot well be thought to affect, from a

_ federal constitutional standpoint, the validity of what

California has done. The Fourteenth Amendment does

not reach such state constitutional action any more

than it does a simple legislative repeal of legislation

_. forbidding private discrimination. 387 U.S. at 389, 87

see mt AOR:

—. thnanes at bar thet the legislative

—. Botad was neutral. The Board specif-

ically repudiated measures which had been adopted for the

purpose of providing a measure of equal opportunity to

plaintiffs and others. The School Board action was, to say

the least, not neutral and the causal relation between the

School Board action and the injuries is direct. We find and

conclude then that Mulkey not only supports our position,

it is a compelling authority in support of the conclusion

which we have reached. It is so closely analogous that we

would be remiss if we failed to follow it.

II.

The evidentiary as well as the legal approach to the

remaining schools is quite different from that which has

been outlined above. For one thing, the concentrations of

minorities occurred at an earlier date and, in some in-

stances, prior to the Brown decision by the Supreme Court.

Community attitudes were different, including the attitudes

of the School Board members. Furthermore, the transitions

were much more gradual and less perceptible than they were

in the Park Hill schools.

Still another distinguishing point is that we do not here

have legislative action similar to the rescission of Resolu-

tions 1520, 1524 and 1531.

Opinion of District Court of March 21, 1970

The first count of plaintiffs’ second claim for relief al-

leges that de jure segregation exists at Manual High School;

Cole Junior High School; Morey Junior High School;

Boulevard Elementary School; Columbine Elementary

School and Harrington Elementary School as a result of

School Board action designed to isolate Negro and Hispano

children in the above schools, Furthermore, plaintiffs claim

that this intentional isolation of minority children aggra-

ee ee E, ne ge, en e elite

in question.

In support of their allegations, plaintiffs have offered

boundary changes and other acts on the part of the School

Board as constituting de jure segregation.

Before discussing the acts which are relied on, one other

factor needs to be mentioned. In some of the schools there

are concentrations of Hispanos as well as Negroes. Plain-

tiffs would place them all in one category and utilize the

total number as establishing the segregated character of

the school. This is often an oversimplification (certainly if

relief is to be granted in a school, the Hispano should re-

ceive the same benefit as the Negro.) The plaintiffs have

accomplished this by using the name “Anglo” to describe

the white community. However, the Hispanos have a wholly

different origin, and the problems applicable to them are

often different.

One of the things which the Hispano has in common with

the Negro is economic and cultural deprivation and dis-

imination, However, whether it is permissible to add the

bers of the two groups together and lump them into a

singl@\minority category for purposes of classification as a

segregated school remains a problem and a question.

It would seem then that to the extent that Hispanos, as a

group. are isolated in concentrated numbers, a school in

59a

Opinion of District Court of March 21, 1970

which this has occurred is to be regarded as a segregated

school, either de facto or de jure.

We turn now to a consideration of the evidence offered by

plaintiffs regarding boundary changes and elimination of

optional areas, which evidence is presented in support of

their argument that de jure segregation exists in the affected

schools. Our comments and legal conclusions will follow.

1. New Manual High School (Location: 1700 East 28th

Avenue. Present Racial Composition: 60.2 percent Negro,

27.5 percent Hispano, 8.2 percent Anglo)

Both the old and the new Manual were and are located in

the older part of the city. This is an area which has long

been occupied by the Negroes and is now partly occupied

by the Hispanos as well. In the very earliest days of Denver

it probably had no racial or ethnic character, and before

the Negroes it was in all likelihood-oceupied by laboring

people of various national origins.

The Negro movement has always been eastward because

this has been the only open corridor, and this continues to

be the case. Plaintiffs’ big complaint is that the school was

built in this old location and was thus earmarked for minor-

ity occupants. However, we have to be mindful of the

evidence that it was opened in 1953 at a time prior to Brown

v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L.Ed.

873 (1954), and we are told that this location had the con-

sent of the people in the neighborhood. At that time there

was much less concern about minority concentration. The

community concern was with the nature and character of

the new facility. In any event, the new Manual High School

had the same attendance boundaries as the old. The eastern

: _ boundary of the mandatory Manual attendance zone was be-

Opinion of District Court of March 21, 1970

tween Williams and High Streets, just one-half block east

of the school site.’

In 1953, Manual was operating under its capacity, while

East High School, to the southeast, was filled to capacity.“

Although data is not available as to the 1953 Hispano en-

rollment at Manual, we know that in 1949-50 this figure was

23.5 percent. The Negro enrollment at Manual in 1953 was

35 percent. We can infer, therefore, that when new Manual

opened in 1953, it was a minority school if Negroes and

Hispanos are aggregated. Nearby East High School was

predominantly Anglo, with a Negro enrollment of only two

By 1956, Manual High School was 42 percent Negro.

easternmost point of Negro population movement, by 1956

the Negro population had expanded eastward to roughly

York Street. In January 1956, the school administration

recommended that the Manual boundary be moved east to

York Street, thus including a portion of the former East-

i a '

The new Manual attendance area was irregularly shaped with

its northern boundary at the city limits, its western boundarv at

the Platte River, and its southern boundary at 17th Avenue. Only

the eastern boundary, between Williams and High Streets, is rele-

purposes of this case.

utilization of a school is a function of school size

d number of students. Plaintiffs have computed school capacity

1

Gla

Opinion of District Court of March 21, 1970

Manual optional zone.“! This proposed boundary, therefore,

coincided with the eastern movement of Negro population

in that area,

The 1956 Manual boundary change was resisted by some

members of the Negro community on the ground that it

would serve to contain Negro students living between Wil-

liams and York at Manual by cutting off their prior option

to attend East. This concern was communicated to the

School Board at a series of public meetings. The school ad-

ministration justified the change on the basis of the over-

erowding at Bast and the underutilization at Manual.

Manual had sufficient capacity to accommodate more stu-

dents than those to be transferred under the proposed

boundary change. It was, therefore, suggested that the

Board move the Manual boundary east to Colorado Boule-

vard. This would have embraced a predominantly Anglo

neighborhood. Such a move would not only have further

alleviated overcrowding at East, but would also have had

some integrating effect at Manual. How much we do not

know. It would not have substantially changed its character,

and the integrating effect would have been temporary, only

because in a few years this neighborhood became Negro.

2. Cole Junior High School (Location : 3240 Humboldt

In 1952, the eastern boundary of Cole Junior High was

four blocks east of the school, between High and Race

Streets." At this time Cole was undercapacity while

e percent.

.

f we may infer was a m

School at that time from t Angles 21 eg Negro, 29 perent io a

percent Hispano

By 1882 th the 1 sa enrollment at Cole

62a

Opinion of District Court of March 21, 1970

Smiley Junior High, a predominantly Anglo school a short

distance east of Cole, was overcapacity by approximately

300 students. Although the empty space at Cole would

have been utilized to alleviate overcrowding at Smiley, this

course of action was not taken.” Instead, the school ad-

ministration determined to construct an addition at Smiley.

In 1956, a boundary change was proposed whereby the

eastern boundary of Cole would be extended to York Street,

thus transferring part of the Cole-Smiley optional zone

to Cole.“ This proposed change was criticized by members

of the Negro community on the ground that its tendency

was to preclude Negro students who were living between

Race and York Streets from attending Smiley and would

force them to attend Cole, which, by this time, was rapidly

becoming a segregated school. Nevertheless, the Cole-

Smiley boundary proposal was adopted. After the shift in

the Cole boundary, Smiley remained overcapacity while

Cole was substantially undercapacity.

In 1958, another addition was built at Smiley. As in 1952,

in March 1960, the School Board adopted Resolution 1524,

which called for the reduction of student population at

Cole. This action was designed to improve the educational

opportunity offered to those students remaining at Cole,

63a,

Opinion of District Court of March 21, 1970

while making room for special education programs for low

achieving students. Resolution 1524 was rescinded in June

1969."*

3. Morey Junior High School (Location: 840 East 14th

Avenue. Present Racial Composition: 52.4 percent Negro;

26,8 percent Anglo; 18.6 percent Hispano)

The racial composition of Morey Junior High School in

1961 was between 65 and 80 percent Anglo. Morey was

surrounded on four sides by optional zones. In 1962, the

all but one of the Morey optional zones.* After this en-

.

: aay te Morey. prey. The

ni

64a

Opinion of District Court of March 21, 1970

actment became effective, the estimated Anglo enrollment

at Morey declined to between 45 and 49 percent. Thus, the

1962 Morey boundary changes were largely responsible for

the transformation of Morey from a predominantly Anglo

school in 1961 to a predominantly minority school in 1962.

The defendants’ testimony was to the effect that these

changes were made ih order to better utilize the capacities

of Hill, Byers and Baker junior high schools. The testi-

mony also showed that at that time Cole Junior High School,

which. was then predominantly Negro, was overcapacity

and Morey. was the most convenient school available for

the purpose of accomplishing the objective. The effect,

of course, was to relieve somewhat the concentration of

peg Pere at eh Y substantially i increasing the number

igh sn — e

worked out a more equitable distribution, but it cannot be

said that this was carried out with the design and for the

purpose of causing. Morey to become a minority. school.

The Board could not have escaped criticism for the plain-

tiffs if it had continued the concentration of Negroes at

Cole rather than transferring them to Morey.

4. Boulevard Elementary School (Location: 2351 Federal

Boulevard. Present Racial Composition: 68.1 percent His-

pano, 29.9 percent Anglo) °~ ©

In 1961, Boulevard Elementary School was undercapac-

ity and its racial e ion was 59 percent Anglo and 40

pereent ee Brown Elementary cae five blocks

l 1 2 EE ‘cent Angk 10 id Blen ntary

Gates Das ere eo

5 ercent Anglo and 37 percent Hispano.

sting of, a portion of Boulevard résulted in a de

65a

Opinion of District Court of March 21, 1970

erease in that school’s capacity, requiring the administra-

tion to adjust the Boulevard boundaries. The western por-

tion of the Boulevard subdistrict was transferred to Brown

and the southwest part of the Ashland attendance zone was

assigned to Boulevard: As a result of these boundary al-

- terations, the Hispano population of Boulevard was in-

' greased to 60 percent while reducing the Anglo enroll- |

ment to 39 percent, thus transforming Boulevard from a

predominantly Anglo to a predominantly Hispano. school.

The school administration denied that this decision had

any racial or ethnic character, maintaining that it was a

matter of necessity because of the age and condition of

tme building destroyed.

ie Columbine Elementary School (Location: 2545 East

Avenue. Present Racial Composition: 97.2 percent

ro; 2.2 percent Hispano; 6 percent Anglo)

: ; 1951, Columbine Elementary School was overcapacity

a its Negro enrollment ‘was 24 percent. Harrington Ele-

mentary was slightly overcapacity and had no Negro stu-

de ts. Stedman Elementary School, which has been con-

sidered in part I of this opinion, at 29th and Dexter, was

ati FFF .

‘a effect of the administration’s action was to

tly decrease overcrowding at Columbine while cre-

an overcrowded situation at Harrington and Sted-

Furthermore, a study of the racial composition of

66a

Opinion of District Court of March 21, 1970

these schools one year after the creation of the optional

zones indicated that the options were apparently employed

by Anglo stüdents as a means of escaping from Columbine

to the almost totally Anglo Harrington and Stedman."

Before considering the legal consequences of the above

discussed actions of the School Board, there are some other

facts which should be mentioned. Former Superintendent

Oberholtzer testified at great length to the fact that the

administration, including the Board, followed a policy of

strict neutrality as far as segregation or integration was

concerned. Indeed, Superintendent Oberholtzer stated

that even after the decision in Brown v. Board of Educa-

tion, supra, he was of the opinion that it was not permissible

for him to classify Negroes as such, even for the purpose

of bringing about integration. Thus, it was his belief that

he was committed to maintaining the status quo in the.

schools, Other members of the Board also denied vigor-

ously that they had ever been motivated by either an inten-

tion or desire to discriminate, Their testimony was that

the boundary changes and their other actions were taken

in order to utilize school capacities and carry out the neigh-

borhood school concept.

In examining the boundary changes and removal of

optional zones in connection with the several schools which

are discussed above, we do not find any wilful or malicious

actions on the part of the Board or the administration

(in relationship to elementary schools). As to these schools,

JJ ͤ ͤ T

“WT Between 1981 and and 1952, the Negro

67a

Opinion of District Court of March 21, 1970

administration pursued discriminatory policies, since the

_ Negroes and, to an extent the Hispanos as well, always

_ seem to end up in isolation. The substantial factor in

this condition is twofold: First, a failure on the part of

the Board or of the administration to take any action hav-

ing an integrating effect, and secondly, deeply established

housing patterns which have existed for a long period of

time and which have been taken for granted.

It should also be kept in mind that prior to Brown v.

Board of Education, supra, it was apparently taken for

granted by everybody that the status quo, as far as the

- Negroes were concerned, should not be disturbed because

this was the desire of the majority of the community. Time

and again the Board members testified to the fact that

in making decisions they held hearings and finally bowed

ae to the community sentiment. Thus, they say they did not

_ intend to segregate or refuse to integrate. They just found

e consensus and followed it.

_ Under the present state of the law, particularly in the

8 ‘Tenth Circuit, a condition such as we have described above

does not dictate the conclusion that this is de jure segre-

_ gation which calls for an all-out effort to desegregate. It

is more like de facto segregation, with respect to which

te rule is that the court cannot order desegregation in

order to provide a better balance.

It is to be emphasized here that the Board has not re-

fused to admit any student at any time because of racial

or ethnic origin. It simply requires everyone to go to his

PPP

3 overcrowding.

From the cases, we gleaned the following principles as

wares

: ente of de jure segregation:

68a

Opinion of District Court of March 21, 1970

(1) The State, or more specifically, the school adminis-

ee ne Seer nen en anne ©

segregate ;

(2) this action must have in fact created or aggravated

segregation at the school or schools in question;

(3) a current condition of segregation must exist; and

(4) there must be a causal connection between the acts

of the school administration complained of and the cur-

rent condition of segregation.

The first of the above requirements actually consists of

two elements state action and a purpose to segregate. It

seems unnecessary to elaborate on the element of state

action at this time, since plaintiffs here emphasize only

The important distinguishing factor between de facto

and de jure segregation is purpose to segregate. See, e. g.,

Board of Education, ete. v. Dowell, 375 F.2d 158 (10th Cir.

1967), cert. denied, 387 U.S, 931, 87 S.Ct. 2054, 18 L.

Ed. 2d 993 (1967) ; Downs v. Board of Education of Kansas

City, 336 F.2d 988 (10th Cir. 1964), cert. denied, 380 U.S.

914, 85 8. Ot. 898, 13 L.Ed.2d 800 (1965). As the Court of

Appeals for the Tenth Cireuit stated in Dowell, supra:

In Downs the trial court found: the plan was not being

used to deprive students of their Constitutional rights

and here the trial court, in substance, found to the

contrary. It is still the rule in this Cirenit and else-

_ where that neighborhood school attendance policies,

when impartially maintained and administered, do not

violate any fundamental Constitutional principle. or

- stitutional rights. 275 F.2d at 166.

69a

Opinion of District Court of March 21, 1970

Segregative purpose may be overt, as in the dual sys-

tem maintained in some states prior to Brown v. Board

ol Education, supra, or it may be covert, in which case pur-

pose normally must be proved by circumstantial evidence.

In order to satisfy this element of purpose, the intent to

segregate need not be the sole motive for a school district’s

action; it need only be one of several factors which mo-

_ tivated the school administration. Thus, regardless of how

Se e ee it: e Mat

the constitutional rights of- children not to be dis-

, criminated against in school admission on grounds of

race or color * * can neither be nullified openly and

directly by state legislators or state executive or ju-

Aiüicial officers, nor nullified indirectly by them through

evasive schemes for segregation whether attempted

1 f or ingenuously” Cooper v. Aaron, 358

= 1, 17, 78 S. Ot. 1401, 1409, 3 L. Ed. 2d 5, 19 a

The second requirement, assuming purposeful me ac-

e

stantially aggravated segregation. A threshold problem

here is a definition of “segregation.” This term connotes

_ first and foremost a very heavy concentration of a minority

_ group within the school in question. Once you have a

opened minority school population, other factors

oo m of faculty and staff, e.g, Bradley v. School

a 5 a, 882 UA, 18, 86 Gt 27 25. iu lu, Gh,

gon v u, 269 F.Supp. 401, 502 (D.D.C. 1967),

, sub nom., Smuck v. Hobson, 132 U.S. App. D. C. 372,

F. 2d 175 (1969); the equality of educational oppor-

t; offered at the school; and the community and ad-

istration attitudes toward the school.

70a

Opinion of District Court of March 21, 1970

The third requirement, that a condition of segregation

presently exists, recognizes the fact that the term “de

jure segregation” speaks in present terms. In other words,

if a past condition of segregation has been remedied,

either through positive state action or through the natural

course of events, there is, of course, no present injury jus-

tifying equitable relief.

The final and most important element in this case is

that of a causal relationship between the discriminatory

action complained of and the current condition of segre-

gation in the school or schools involved, Thus, it would be

inequitable to conclude de jure segregation exists where a

de jure act had no more than a trifling effect on the end

result which produced the condition.“ In such a case no

relief can be granted, for it is not the duty of a court of

equity to punish a school board for all past sins, but rather

to afford a remedy only where past sins have resulted in

present injury.

This necessity of a causal connection between present

injury and past discriminatory acts was recognized in

Hobson v. Hansen, supra. Prior to 1954 the District of

Columbia schools had been segregated by law. In 1954 a

7¹

Opinion of District Court of March 21, 1970

that the effects of the dual system still remained and that

they were entitled to relief. Judge Wright held that the

dual system was insignificant as a cause of the present

segregation :

This suit was begun 12 years after the institution of

the neighborhood school policy, * * . Many concurrent

causes have combined with the Board’s 1954 decisions

in the evolution of present reality. If the segregation

in the Distriet's schools is not currently objectionable

“under either an independent de facto or de jure ra-

tionale, it would be very difficult to strike it down

merely because the neighborhood school policy failed

to produce sufficient integration when it replaced an

overt de jure system 13 years ago. 269 F.Supp. at 495.

o

So also in our case, the complained of acts are remote

in time and do not loom large when assessing fault or cause.

The impact of the housing patterns and neighborhood

population movement stand out as the actual culprits.

_ Plaintiffs have argued that the construction of the new

Manual in 1953 at the old site virtually insured its segre-

_ gated character and that this act, as well as the Manual

and Cole boundary changes, together with the Smiley addi-

tions at a time when Cole was undercapacity, are acts of

de jure segregation. Quite apart from the cause element

which will be discussed further below, it cannot be said

~ that the acts were clearly racially motivated. One would

_ have to labor hard in order to come up with this conclusion.

It ean, however, be concluded that the segregation (or

racial concentration) which presently exists at Manual and

Cole, except insofar as Cole was affected by Resolution

1524 and its rescission as explained above in part I, is not

de jure. How much of an impact the Board’s decisions at

72a

Opinion of District Court of March 21, 1970

the time had on minority concentrations we do not know.

We do know that much of the concentration occurred long

after these decisions were made. For example, the Negro

population at Cole and Manual increased over 20 percent

between 1963 and 1968, and the only contribution which the

Board could have made to that resulted from inaction. An

essential requisite of a violation of the equal protection

clause of the Constitution in the present context is positive

legislative or administrative state action which discrim-

inates on account of race, and which produces the condition

complained of. The instant situation then cannot be placed

at the administration doorstep; if cause or fault has to be

ascertained it is that of the community as a whole in impos-

ing, in various ways, housing restraints.

Similarly, it is doubtful whether the 1952 boundary

change at Columbine can now be classified as a de jure act.

To be sure, it increased the minority concentration at

Columbine; yet there is a dearth of evidence that this was

accompanied by a purpose to segregate rather than a pur-

pose to eliminate double sessions, which was also a result

of the change. In any event, as in the case of Manual and

Cole, this act appears in restrospect to have had little to

do with the present minority population at. Columbine.

Between 1953, the year following the Columbine boundary

modification, and 1969, the percentage of Negro enrollment

at the school more than doubled, Even the 1960 census tract

data shows that almost the entire Columbine subdistrict

was in an area with over 50.1 percent Negro population.

It is not conceivable then that this 1952 boundary change,

the immediate effects of which were relatively insignificant,

could be a current cause of segregation at Columbine.

The Boulevard boundary change of 1962 was necessitated

by the legitimate need to reduce pupil enrollment due to

73a

Opinion of District Court of March 21, 1970

the razing of a portion of the school. Furthermore, there

is absolutely no evidence presented, other than the fact of

the 1962 change, upon which to base a finding that the

School District was motivated by an intent to segregate

Hispano students at Boulevard Elementary School.

The removal of the Morey Junior High School optional

zones in 1962 did have the effect of increasing the concentra-

tion of minority students at that school. It also had the

salutary effect of relieving the concentration of Negro

students at Cole, a result consistent with defendants’ claim

that it was carrying out a racially neutral policy. Both the

desirable and undesirable consequences of the 1962 changes

appear to have been by-products of a general redistribution.

In view of that, it would strain both the facts and law to

say that the administration acted with an unlawful purpose

er design in this instance.

Moreover, whether Morey is presently a segregated

— uarection: To so categorize it requires the

lumping together of all non-Anglo groups. The current

5 racial composition at Morey is 52.4 percent Negro, 26.8

percent Anglo, 18.6 percent Hispano. Over 80 percent of

the classroom teachers at Morey are Anglo. Morey is un-

8 questionably racially imbalanced, is in transition and will

offer a concentration problem unless the Board acts to

stabilize it.

Plaintiffs’ further claim is that the neighborhood school

policy itself has been maintained by the School Board for

: the purpose and with the effect of segregating minority

pupils to the degree that it is unconstitutional. They rely

on the rulings of our Court of Appeals that the deliberate

use ofa neighborhood school system to perpetuate segrega-

tion is unlawful. Board of Education, ete. v. Dowell, 375

‘F.2d 158 (10th Cir. 1967), cert. denied, 387 U.S. 931, 87

74a

Opinion of District Court of March 21, 1970

S. Ct. 2054, 18 L.Ed.2d 993 (1967); Downs v. Board of Edu-

cation, 336 F.2d 988 (10th Cir. 1964), cert. denied, 380 U.S.

914, 85 S.Ct. 898, 13 L. Ed. 2d 800 (1965). What we have said

above regarding boundary changes disposes of this conten-

tion. There is no comprehensive policy apparent other than

the negative approach which has been described which could

be considered in this context. The Board’s eye-closing and

head-burying is not the kind of conduct which the Circuit

Court had in mind in Dowell and Downs.

Finally, the third count of plaintiffs’ second claim for

relief urges us to adopt a rule of law that a neighborhood

school policy may in and of itself create and/or maintain

unconstitutional segregation, even if the adoption of such

a policy is motivated by legitimate factors. Plaintiffs’ argu-

ment in essence is that the neighborhood school system is

unconstitutional if it produces segregation in fact. We

recognize that some courts have moved along this line.“

However, the law in our Circuit, as enunciated in Downs

and Dowell, supra, is that a neighborhood school policy,

ff ate yaa ag unlawful if:

it is carried out in good faith and is not used as a mask

to further and perpetuate racial discrimination. Board

of Education, etc. v. ä (10th

Cir. 1967).

The United States Supreme Court has not yet ruled on

this question, and we are here subject to the strong pro-

nouncements of our Circuit Court. Under these decisions

Ts eee e 401 (D. D. C. 1967), sub nom.,

Smuek v. Boe 132 U.S. App. D. C. 372, 25 F.2d 175 (1969) ;

Mass.1965), ae 88 en 281 (st G. 1965) Blocker v.

Board of 8 226 F.Supp. 208 (ED NY 1901); Branche v.

Board of Education, 204 F.Supp. 150 (E.D.N.Y.1962).

75a,

Opinion of District Court of March 21, 1970

plaintiffs are not entitled to relief merely upon proof that

de facto segregation exists at certain schools within the

School District.”

In summary then, we must reject the plaintiffs’ conten-

tions that they are entitled to affirmative relief because

of the above mentioned boundary changes and elimination

of optional zones. We hold that the evidence is insufficient

to establish de jure segregation.

III.

The third count of plaintiffs’ second claim for relief

alleges that defendants are maintaining certain schools

within the District which provide an unequal educational

opportunity for the students attending them; that these are

segregated schools; and that, therefore, the students at

these schools are being denied the equal protection of the

law. The plaintiffs seek relief for a large number of schools

at every level and in various conditions of racial concentra-

tion, These include Barret, Boulevard, Bryant-Webster,

Columbine, Crofton, Ebert, Elmwood, Fairmont, Fairview,

Garden Place, Gilpin, Greenlee, Hallett, Harrington,

Mitchell, Smith, Stedman, Whittier, Wyatt and Wyman

_ Elementary Schools; Baker, Cole, Morey and Smiley Junior

High Schools; and East, Manual and West High Schools.“

5 where, as here, it is claimed that schools

provide an unequal educational opportunity, it is irrelevant whether

we schools in question are de jure or de facto segregated. This

25 point is discussed later in this section.

_ % These schools were selected by plaintiffs through f proba-

bility theory. Weer tly sala: hal Or ath anne ee es

76a

Opinion of District Court of March 21, 1970

In addition to the charge that all these schools are segre-

gated, plaintiffs maintain these are inferior schools and

that racial concentration produces the inferiority. They

use several indicia to establish the inferiority and in-

equality. All of these schools, they say, have (1) low aver-

age scholastic achievement; (2) less experienced teachers ;

(3) higher rates of teacher turnover; (4) higher dropout

rates; and (5) older buildings and smaller sites.

Extensive and detailed evidence has been presented

establishing the inferiority of plaintiffs’ target schools.

Some of these have high concentrations of either Negroes

or Hispanos. Others are substantial, but at the same time

r e

men . . and consequently low morale. However, our mis-

sion is to determine inequality based upon race or ethnic

that all injustices ever encountered should be rooted out.

Tentatively, at least, we have determined that for the

present purpose a concentration of either Negro or Hispano

77

Opinion of District Court of March 21, 1970

students in the general area of 70 to 75 percent is a con-

centrated school likely to produce the kind of inferiority

which we are here concerned with.

In the columnar list below, the elementary, junior and

senior high schools with respect to which the plaintiffs

have presented evidence are shown. It is to be noted that

some of these schools are subject to the findings and conclu-

sions contained in part I of this opinion, but they are never-

theless included here because of their racial concentrations,

if not in every instance their educational inferiority.

ee Exementary ScHoois

Schoo] Anglo(%) Negro(%) Hispano (%)

*Barrett 67.0 30.5 14

Boulevard 29.9 5

Bryant-Webster 5

Columbine 1 97.2

Orofton 38.4

bert 34.6

~ Elmwood +! 00.0

Fairmont 00.0

Fairview . 8.2

Garden Place d 17.2

. i 36.4

9.0

58.4

76.3

70.9

91.7

92.7

94.0

46.4

38.0

Ses

Opinion of District Court of March 21, 1970

| Juxron Hien Scxoors

School Anglo (%) Negro (%) Hispano (%)

Baker 11.6 6.7 8¹.4

Cole 1.4 72.1 25.0

Morey 26.8 52.4 18.6

Smiley 61.2 30.4 6.9

*Barrett and Smiley have been integrated by the pre-

limi ace ber

Saxon Hiex Scions

School Anglo (%) Negro (%) Hispano ()

East 50.1 39.9 74

West 56.6 9.0 34.0

Manual . 60.2 27.5

Based on the rule of thumb adopted above, we are here

primarily concerned with the following schools: Bryant-

Webster, Columbine, Elmwood, Fairmont, Fairview, Green-

lee, Hallett, Harrington, Mitchell, Smith, Stedman and

Whittier Elementary Schools; Baker and Cole Junior High

Schools; and Manual High School.

A. Achievement

Plaintiffs’ evidence establishes that the scholastic achieve-

ment in the above schools is significantly lower than in the

other schools in the city. To evidence this, they point to

the 1968 Stanford Achievement Test results, which results

are designed to measure the achievement level of each pupil

in specific scholastic areas, such as spelling, arithmetic, and

science, Achievement data for elementary, junior and senior

high schools appears in Appendix I.

79a

Opinion of District Court of March 21, 1970

At the elementary school level, these Stanford Tests

results are reported in terms of grade level scores for

_ the third and fifth grades in May 1968. Since May 1 marks

the approximate date at which the eighth month of school

begins, we are told that a third grade student should be

achieving at a 3.8 level at this time, while a fifth grade

student should be achieving at a 5.8 level.

We find that in May 1968, the children in the third grade

at the segregated schools in question achieved at a grade

level of approximately 2.96, and accordingly, were almost

one full year below the level at which they should have

been achieving. With respect to all 91 schools in the Dis-

trict in 1968, the average median grade level was 3.57, or

approximately six months above the achievement level of

the schools listed above.

Similarly, the average achievement among fifth grade

students at the 12 segregated elementary schools was 4.30.

All fifth graders in the District averaged 5.22, which is

almost a full year ahead of the 12 segregated schools.

The data with respect to junior high schools, also shown

in Appendix I, is based upon the May 1968 Stanford

Achievement Tests, and is reported in terms of percentile

- geores (no grade placement scores were available for

junior or senior high schools). A percentile score shows

the percentage of pupils nationally whose scores are below

the given percentile. For example, if a student’s percentile

score on a given test is 75, then 75 percent of the students

in his grade nationally have scored lower on that test.

_ Similarly, 25 percent of the students taking the test have

Scored higher.

The average percentile score for all ninth graders on all

s administered is 53.8. However, the two segregated

ior high schools (Baker and Cole) achieved at an aver-

Opinion of District Court of March 21, 1970

age percentile score of only 28.2. This is some 29 per-

centiles below the average percentile score among all ninth

graders. It is interesting to note that the highest average

percentile score of the two segregated junior high schools

is lower than the lowest average percentile score at any

of the other junior high schools in the city.

Senior high school data is based upon tests given in May

1968, to all eleventh grade students in the District, and,

like the junior high school data, these scores are reported

in terms of average median percentile.

The average median percentile score for all high schools

at the eleventh grade level was 52. For Manual, the only

minority concentrated high school, the average percentile

score was 30. Thus, at the eleventh grade level Manual

achievement was some 22 percentiles lower than the high

school average for the city, and 70 percent of all students

nationally performed better than the median at Manual.

B. Teacher Experience

Faculty experience is an important factor in determining

the educational opportunity offered at a particular school,

and plaintiffs have produced evidence which shows the per-

centage of faculty at a given school with (1) no years of

prior Denver Public School experience; (2) probationary

status (0-3 years of experience); and (3) 10 or more years

experience. Teacher experience data for elementary, junior

and senior high schools appears in Appendix II. At the

elementary school level plaintiffs have compiled teacher

experience data for their 20 target schools and 20 selected

schools with high Anglo enrollment. We have here selected

only those schools out of plaintiffs’ list of target schools

which we find'to be segregated, and have compared teacher

experience in them with teacher e in plaintiffs’

selected Anglo schools.

Sla

Opinion of District Court of March 21, 1970

The evidence establishes that in the 12 segregated ele-

_ mentary schools in 1968, 23.9 percent of the teachers had

uo previous DPS experience, 48.6 percent were on proba-

tion and 17.4 percent had 10 or more years experience. In

contrast, in the 20 selected Anglo schools, only 9.8 percent

of the faculty had no previous experience, 25.6 percent

were on probation and 47.1 percent—nearly half—had 10 or

schools, only one—Bryant-Webster—had a higher percent-

age of teachers with 10 or more years experience than

teachers with no experience or on probation, while sixteen

of the 20 Anglo schools had more teachers with 10 or more

years experience than non-experienced or probationary

becher.

As to junior high schools, plaintiffs have introduced

ben e ele ini er.

istenoe in 1968 (see Appendix II). This evidence estab-

shes that the segregated schools have more probationary

and non-experienced teachers and fewer teachers with 10

or more years experience than the selected Anglo schools.

The data with respect to senior high schools is similar

to that on junior high schools. As was the case with the

junior high schools, there are more high school teachers

with no or little experience and fewer with over 10 years

nea than in other senior high schools.

0. Teacher Turnover

_ Phe effect of teacher turnover on the quality of educa-

tional opportunity is twofold. First, a high teacher turn-

over rate tends to have a disorganizing effect on the school

question. Furthermore, and more important, the teacher

turnover rate in a particular school significantly affects

the experience of the faculty at that school. In the present

82a

Opinion of District Court of March 21, 1970

case, plaintiffs have established that the present policy with

respect to teacher transfers has the effect of creating a

much higher turnover rate at predominantly minority

schools than at predominantly Anglo schools. This in turn

results in more faculty vacancies at these minority schools

nnn with: TAs dr

no Denver Public School experience. —

Denver Public Schools Policy 1617A deals with transfers

for faculty. On or about April 20 of each year, the Assistant

Superintendent for Personnel Services posts in each school

a list of teaching, vacancies to be filled the following

school year. Those teachers who wish to transfer to schools

with vacancies submit an application. Although the prin-

cipal criterion for determining whether to grant an appli-

cation for transfer is “whether the request will result in

the best educational program for the School District,” one

of the major considerations for filling vacancies is seniority.

Thus, teachers with the most seniority are normally given

preference in making transfers. This transfer policy is

embodied in an Agreement between School District Number

One and the Denver Classroom Teachers Association.

This policy results in the more experienced teachers at

minority schools transferring out of those schools when

vacancies are opened at predominantly Anglo schools, with

the resulting vacancies being filled by inexperienced

teachers.

D. Pupil Dropout Rates

Plaintiffs’ evidence as to dropout rates in junior and

senior high schools“ is set forth in terms of projected and

by law, it is mandatory that children attend school until

ee . ae

893

83a

Opinion of District Court of March 21, 1970

| geeks dropout rates. The annual dropout rate merely

indicates the percentage of students who leave school dur-

ing a given year. The projected dropout rate for a given

year reflects the percentage of students beginning at a

Se shes she will drop out before graduation (see

3 JJJ%J%%%ꝓꝙ¼w0%J4 ͤ ̃ (

„„ eee

(Baker and Cole) and Manual Senior High School than at

e e ee De

n. Building Facilities

Plaintiffs have introduced evidence in an attempt to show

a disparity in the age of school buildings and the size of

school sites between predominantly minority and predomi-

nantly Anglo schools, We would agree that, in most gen-

eral terms, this disparity exists. However, we do not think

that the age of a building and site size are, in and of them-

selves, substantial factors affecting the educational oppor-

tunity offered at a given school. However, we do recognize

that in schools which are segregated, have less experienced

teachers and produce generally low achieving students, the

fact that the physical plant is old may aggravate the aura

of inferiority which surrounds the school.

The above material summarizes plaintiffs’ evidence and

our findings as to the objective indicia of inequality at the

schools for which they seek relief. Although plaintiffs claim

chat factors such as inexperienced faculty tend to contrib-

ute to the inferior educational opportunity provided at

these schools, their main argument is that the segregation

_ which exists at many of these schools makes a major con-

tribution to this inferiority.

Opinion of District Court of March 21, 1970

Dr. Dodson, a professor of education at New York Uni-

versity, who has for the past 15 years studied the relation-

‘ship between the scholastic performance of minority chil-

dren and segregated schools, testified that a segregated

school adversely affects a Negro child’s ability to achieve.

He indicated that studies show that by the time a school

CC

munity as being inferior.

JJ

segregated school as a legitimate institution for social and

economic advancement. Since the students do not feel that

the school is an effective aid in achieving their goal—accep-

tance and integration into the mainstream of American life

they are not motivated to learn. Furthermore, since the

parents of these Negro students have similar feelings with

respect to the segregated school, they do not attempt to

motivate their children to learn. Teachers assigned to these

schools are generally dissatisfied and try to escape as soon

as possible. Furthermore, teachers expect low achieve-

spies fepen e eee eee eee end thus do little

to stimulate higher performance.

The defendants do not acknowledge that segregated

schools per se produce lower achievement and an inferior

educational opportunity. They point to other factors, such

as home and community environment, socioeconomic status

of the family, and the educational background of the par-

ents as the major causes of inferior achievement. We do

not disagree that these factors are relevant, but we cannot

ignore the overwhelming evidence to the effect that isola-

tion or segregation per se is a substantial factor in pro-

ducing unequal educational opportunity.

hse Stet bully of the equality afabemtiona) opportunity

in the Denver Public Schools conducted by the Voorhees

28

9

Opinion of District Court of March 21, 1970

Committee recognized this. In its 1964 report to the Board

of Education this Committee stated that

In a “neighborhood” school 1 inevitable result

ok concentrations of races and ethnic groups because

of housing patterns is concentrations of children in the

schools into the same groups. There is abundant au-

thority to the effect that “de facto” separation in

__ Schools may result in educational inequalities, and there

is in Denver wide belief among the racial and ethnic

minorities that the schools to which their children go

are in some way unequal. In addition, however, there

is the fact that there is not available to many children

(perhaps a majority of the total school population,

regardless of race or ethnic background) the demo-

8 oratie experience of education with members of other

races and groups with which they will have to live and

compete. The responsibility to eliminate or reduce

this result where possible and to compensate for it

where elimination is not possible by the removal of

prejudice (whether based on color, ethnic or religious

background, false values, or any other cause) must be

the responsibility of the school to its pupils. Voorhees

Committee Report, pp. 6-7.

The Committee also said:

1 1954 the United States Supreme Court stated that

_- segregated education is inherently unequal education.

There was then and is now ample authority for such

a statement. While the Court in that instance was

_ eoncerned with segregation. established by law, the

_ correctly be made where de facto segregation of minor.

86a

Opinion of District Court of March 21, 1970

ity races occurs because of other factors, the most obvi-

ous of which is a pattern of housing restriction. The

Committee feels that in adhering without obvious devi-

ation to the principle of establishing school boundaries

without regard to racial or ethnic background, the

Board and the administration have concurred, perhaps

- inadvertently, in the perpetuation of existing de facto

segregation and its resultant inequalities in the educa-

tional opportunities offered. Voorhees Committee Re-

port, pg. A-5.

As a result of the Voorhees Report, the School Board, on

May 6, 1964, adopted Policy 5100 providing that henceforth

the school administration would maintain statistical data on

the racial and ethnic composition of students in the Denver

Public Schools. In adopting the philosophy of the Voor-

hees Report the Board said:

The continuation of neighborhood schools has re-

sulted in the concentration of some minority racial

and ethnic groups in some schools. Reduction of such

concentration and the establishment of heterogeneous

or diverse groups in schools is desirable to achieve

equality of educational opportunity.

In 1966 the School Board again created a committee to

investigate inequality of educational opportunity due to

racial concentration in schools (the Berge Committee). The

Committee’s report is replete with references to the in-

ferior education which results from segregation.

When we consider the evidence in this case in light of

the statements in Brown v. Board of Education that segre-

gated schools are inherently unequal, we must conclude that

segregation, regardless of its cause, is a major factor in

87a

Opinion of District Court of March 21, 1970

producing inferior schools and unequal edueational oppor-

tunity.

57 EE

ment prohibits any state from denying to any person the

equal protection of the laws. Simply stated, a state may not

treat persons differently without a legitimate reason for

doing so. In the area of economic regulation the courts

_ grant broad leeway to the states in creating classes of

individuals and treating them differently. All that need

be shown is a minimal justification in terms of a legitimate

state interest for the inequality of treatment.

The courts, however, have jealously guarded the rights

of disadvantaged groups such as the poor or minorities,

and have held that where state action, even if non-discrimi-

natory on its face, results in the unequal treatment of the

poor or a minority group as a class, the action is uncon-

stitutional unless the state provides a substantial justifica-

tion in terms of legitimate state interest. See, e. g., Griffin

v. Illinois, 351 U.S, 12, 18 n. 11, 76 S. Ot. 585, 100 L. Ed. 891

(41956); Douglas v. California, 372 U.S. 353, 83 S. Ot. 814,

9 L. Ed. 2d 811 (1963).“ This general principle of consti-

Under a claim for relief based separate-but-unequal

minorities as a class. See Griffin v. Illinois, 351 U.S. 12, 76 S. Ot.

oT (i887), wach — 90 0 a a e e Hansen, 269 F. Supp.

88a

Opinion of District Court of March 21, 1970

tutional law is fully applicable to school segregation cases.

The present state of the law is that separate educational

facilities (of the de facto variety) may be maintained, but

a fundamental and absolute requisite is that these shall be

equal. Once it is found that these separate facilities are

unequal in the quality of education provided, there arises

a substantial probability that a constitutional violation ex-

ists. This probability becomes almost conclusive where

minority groups are relegated to the inferior schools. As

Judge Wright stated in Hobson v. Hansen, supra:

Theoretically, therefore, purely irrational inequali-

ties even between two schools in a culturally homoge-

neous, uniformly white suburb would raise a real con-

stitutional question. But in cases not involving Negroes

or the poor, courts will hesitate to enforce the separate-

but-equal rule rigorously, *'* * But the law is too

deeply committed to the real, not merely theoretical

(and present; not deferred) equality of the Negro’s

educational experience to compromise its diligence * * *

when cases raise the rights of the Negro poor. 269

F.Supp. at 497.

As Judge Wright further pointed out in the Hobson

case, de facto segregation today stands in the same position

as did de jure segregation prior to Brown v. Board of Edu-

cation. Under the old Plessy doctrine (Plessy v. Ferguson,

163 U.S. 537, 16 S.Ct. 1138, 41 L. Ed. 256 (1896)) a school

board was under no constitutional duty to abandon dual

school systems created by law so long as all schools were

equal in terms of the educational opportunity offered.

Today, a school board is not constitutionally required to

integrate schools which have become segregated because

TTT

89a

Opinion of District Court of March 21, 1970

school system. However, if the school board chooses not

to take positive steps to alleviate de facto segregation, it

must at a minimum insure that its schools offer an equal

educational opportunity. 4

The evidence in the case at bar establishes, and we do

find and conclude, that an equal educational opportunity is

not being provided at the subject segregated schools within

the District.* (See page 78, supra, for a list of these

schools.) The evidence establishes this beyond doubt. Many

factors contribute to the inferior status of these schools,

but the predominant one appears to be the enforced isola-

tion imposed in the name of neighborhood schools and

housing patterns. It strikes one as incongruous that the

community of Denver would tolerate schools which are in-

ferior in quality.

. tution requires a School Board to provide equal educe.

15

45

7

on :

2 Ps 7

.

4

90a

Opinion of District Court of March 21, 1970

IV.

Discussion o REMEDIES

A. The Northeast Denver Schools

Our preliminary injunction decree dealt largely with the

Park Hill schools and, in effect, specifically enforced Reso-

lutions 1520, 1524 and 1531, with the exception of that part

of the resolution having to do with Last Denver High

School and that part having to do with Cole Junior High

School.

In part I of this opinion we have determined that the

plaintiffs are entitled to full relief in accordance with the

Resolutions and are also entitled to have the Hast and

Cole resolutions implemented in the final judgment. Inas-

much as we have concluded that the preliminary injunction

should be made final, an appropriate form of judgment can

be prepared to cover this. The preliminary order will re-

main in effect for the remainder of this year, and the

present judgment will take effect in September 1970.

B. A Program of Improvement

Although we have concluded that there is not de jure

segregation in the so-called core city schools,“ we have

found and concluded that there is a denial of equal oppor-

tunity for education in these schools, We have found and

concluded that the achievement level in these schools is

markedly lower and dropout rates are high; and that there

has been a concentration of minority and inexperienced

teachers.

How to remedy this condition, that is how to extend to

the plaintiffs equal educational opportunity, poses a seri-

2. That is, the segregated schools referred to in part III above.

91

Opinion of District Court of March 21, 1970

ous and difficult problem, and we do not here present any

cure-all. One obvious answer, of course, is that these

schools must be renovated as educational institutions. The

stress here is not on the inferiority of the buildings, and,

indeed, they are oftentimes older and less attractive.

Rather, the emphasis is on improving these as educational

institutions. One obvious equalizing factor would be to

have faculty members who are as competent as the faculty

members at Anglo schools.

At the present time, teachers with seniority can select

the superior schools and they do so. When these transfers

occur a degrading effect on the school which they leave

necessarily results. All concerned are reminded that theirs

is a less desirable school. It may be that the administra-

tion will have to adopt a rule which prohibits these optional

transfers by faculty members. These schools are entitled

to at least their fair share of the most competent teachers.

The administration may have to assign their very best

teachers even if premium salaries have to be paid in order

to accomplish this.

It is also clear from the evidence that the remedial or

special education programs which have been carried on in

these schools have not resulted in any significant improve-

ment and so other methods are indicated. It does not fill

the bill to merely apply for a federal grant and reduce

tho teacher-pupil ratio.

Aͤbove all, these schools need pride and spirit so that the

” participants, teachers and pupils, will feel that they are

part of a meaningful effort. Certainly a first step in

_ instilling this is to provide them with leadership—dedicated

personnel plus the tools to carry out programs. Whether

this objective is possible cannot be determined until a genu-

e good faith effort is forthcoming. In Superintendent

92a

Opinion of District Court of March 21, 1970

Gilberts and his staff the Board has access to experts who

are capable of formulating such a program. Obviously

this Court does not have this expertise, but it anticipates

eee e nne the Board staff.

0. Compulsory ‘Transportation

‘The evidence in this case shows that neither the plain-

tiffs nor the defendants nor other interested parties are

in favor of bussing as such. It is, however, conceded to be

a necessity where integration is ordered, and it would

appear to be the only way to implement the Resolutions

(1520, 1524 and 1531) and to carry out Part I of this opinion.

In connection with equalizing the educational oppor-

tunity, it is not so clear that compulsory transportation

is the answer. To be sure, if the children could go to

school together on a natural basis, it would undoubtedly

provide the most effective antidote for the inferiority.

However, setting up an artificial and extensive system of

bussing which compels cross-movement and which is not

supported by either side has some tendency to undermine

the program from the start.

There is a dearth of law in connection with the remedy

applicable to equalizing the educational opportunity, and

compulsory integration is not yet at least the prescribed

remedy. However, it is conceivable that this could become

the only effective remedy as a matter of law, and it con-

ceivably could become recognized as a matter of constitu-

tional law. Nevertheless, at this writing, the fashioning

of a remedy is a 8 af Weighing and balancing the

equities.

From the intervenors and from ethic sources at the

trial, the difficulties and vicissitudes of mandatory bussing

have been presented. One persuasive point arises from the

Opinion of District Court of March 21, 1970

proof of the plaintiffs. Their evidence establishing the

inferiority of the subject schools is so convincing that it

raises a serious equitable question about subjecting any

pupils, minority or majority, to them. It would be im-

posing a sanction on pupils from good schools—a sanction

for an offense which they did not commit.

D. Voluntary Transfer Policy

We have a single suggestion apart from improvement

and that is a system of genuine voluntary transfer out of

inferior schools to good schools, This would be a matter

of right without the need for securing a reciprocal trans-

fer from an Anglo school to a minority school. Persons

desiring this immediate improvement of their educational

opportunity could get it, and the District would, in aceord-

ance with its present policy based on distance, be required

to furnish transportation. Moreover, the Board would be

required to furnish space for these students. On the other

hand, pupils attending the better schools would not be

compelled to transfer to the core city schools. They could

do so if they wished,

Our suggestion recognizes that there are members of the

minority groups who are not enthusiastic about compulsory

bussing. These parents have the same apprehensions as

the majority parents about sending their children into un-

known conditions, and perhaps into hostile atmospheres.

At the same time, in many instances, they have the same

hopes and aspirations for their children as do members of

the majority and are willing to make the sacrifice in order

to improve the educational opportunity for them.

, n would not, of course, apply to students subject to part I

cf this opinion and the integration Resolutions because actual inte-

Opinion of District Court of March 21, 1970

Arguably, at least, this method satisfies the Constitution

in that it recognizes the right of every student and makes

that right available to him without forcing it on him. Com-

ments of the litigants on this will be considered at a fur-

ther hearing. =

E. Voluntary Open Enrollment

As to the voluntary open enrollment policy of the School

Board, certainly they should be free to pursue and develop

this to the nth degree. Their position at the trial was that

this would ultimately produce integration. One questions

whether it would, but if it can be operated successfully,

the Board should be encouraged to carry it out. It should

be noted, however, that this is neither “voluntary” nor is

it “open” because it requires that there be spaces avail-

able in the transferee school or that there be an exchange

program. It seems clear to us that there would be few

participants in an exchange program with the core city

schools. It seems highly unlikely that students would elect

to go to these schools from white neighborhoods and so it

is questionable whether any integration would be achieved

in a substantial way from this program. On the other

hand, the method selected above has no such “catch” in it.

It is contemplated that any decree which is finally pro-

mulgated here will not be effective until next fall. On the

other hand, the preliminary injunction heretofore entered

would continue for the remainder of this school year until

next September when the final judgment would be effective.

This opinion does not purport to be a judgment for the

purpose of appeal. Final judgment will be entered after

a meeting with counsel which hopefully can be carried out

within the next 30 days.

Opinion of District Court of March 21, 1970

Arran Il: Teacuen EXpErience

(Plaintiffs’ 20 Selected Target Schools)

None 10 or

21.1 31.6

16.7 5

2

k

| rary 1

U

Average

is

verage

. 60.7

14.0 43.9

39.6 65.9

31.0 45.2

19.5 34.1

14.5 33.7

14.5 50.7

6.0 32.5

10.6 40.9

20.3 55.9

16.2 35.1

27.8 53.7

16.7 36.7

15.0 38.3

35.7 63.3

211 46.7

Target Schools

None Probation

$2.1 60.7

39.6 65.9

27.8 58.7

35.7 63.3

34.8 61.9

ee

Opinion of District Court of March 21, 1970

APPENDIX I: TEACHER 8 (continued )

Target Schools

School None — Probation 10 or more years

East 17.2 34.4 36.7

Manual 17.1 87.8 32.4

West 145 500 40.0

Total Average 16.3 34.1 36.4

8 Anglo Schools

School None Probation 10 or more years

George Washington 8.9 17.0 54.1

Kennedy 6.6 15.4 48.5

Thomas Jefferson 68 22.2 50.6

Total Average 74 18.5 51.0

Apprenprx III: Porn. Dropout Rares

Junior High Schools Projected Annual

Baker 12.9 4.5

Byers 3.8 1.3

Cole 7.0 2.4

Gove 19 6

Grant 3.0 1.0

Hill 3 3

Kunsmiller 17 6

Lake 63 2.1

| Morey 157 51

Rishel 41 14

Skinner 2.1 8

Smiley 6.1 ai

John F. Kennedy 3 2

Thomas & 2

Senior High Schools Projected Annual

Abraham Lincoln 38.1 14.7

.

Manual 57.0 24.4

North 51.8 21.9

South 39.6 15.3

1 140 13

Thomas Jefferson 9.9 17

N | Opinion of District Court of May 21, 1970

-___ UNITED STATES DISTRICT COURT

D. CoLonADO

Civ. A. No. C-1499

May 21, 1970

Wir Keyss, individually and on behalf of Christi Keyes,

a minor, et al.,

Plaintiff's,

v.

ö Scxoor District NumsBer Onn, Denver, Cotorapo, the Board

of Education, School District Number One, Denver,

Colorado, William C. Berge, individually and as Presi-

dent, Board of Education, School District Number One,

Denver, Colorado, Stephen J. Knight, Jr., individually

and as Vice President, Board of Education, School Dis-

~ trict Number One, Denver, Colorado, James C. Perrill,

Frank K. Southworth, John H. Amesse, James D. Voor-

bees, Jr., and Rachel B. Noel, individually and as mem-

bers, Board of Education, School District Number One,

Denver, Colorado, Robert D. Gilberts, individually and

as Superintendent of Schools, School District Number

One, Denver, Colorado,

tig Defendants.

5 Decision RR Pian on Remepy

WAN E. Doxxx, District Judge.

5 It is to be recalled that this suit, which has been previ-

_ ously before the Court, was instituted as a class action by

| Collen ewe e erg 3, 1970

„ M

Kens pa 8 Pohle schoo! students and their Went

Plaintiffs complained that there was de jure segregation

in many of the schools in School District Number One,

Denver, Colorado, and that an unequal educational oppor-

tunity was being provided in the segregated schools within

the District. On March 21, 1970, after approximately three

weeks of trial, this Court handed down a memorandum

opinion and order finding that certain schools, elementary,

junior high and a high school within an area of Denver

known as Park Hill, and also some 15 schools within the core

city, were segregated. It was also concluded that our tempo-

rary injunction entered in August 1969, finding a condition

of de jure segregation in certain schools resulting from the

Denver Board of Education's action rescinding Resolutions

1520, 1524 and 1531, which had been designed to have an

integrating effect on Park Hill schools, must be made per-

manent, We ordered full implementation of these Resolu-

tions. D.C., 313 F. Supp. 61.

A further determination was that certain schools within

the core city were segregated as the result of housing pat-

terns and the neighborhood school system ; that this consti-

tuted de facto segregation and was not unconstitutional per

se. A corollary finding and conclusion was that the segre-

gated core city schools in question were providing an un-

equal education opportunity to minority groups as evi-

denced by low achievement and morale. The causes of this

inferiority were held to be the segregated condition, to-

gether with concentration of minority teachers, low teacher

experience and high teacher turnover in each of the schools.

We stated that:

The present state of the law is that separate educa-

tional facilities (of the de facto variety) may be main-

tained, but a fundamental and absolute requisite is that

Opinion of District Court of May 21, 1970

these shall be equal. Once it is found that these sepa-

agarate facilities are unequal in the quality of education

provided, there arises a substantial probability that a

Constitutional violation exists. This probability be-

domes almost conclusive where minority groups are

| Relegated to the inferior schools. 313 F.Supp. at 83.

es e 1

We thus that the School Distriet had violated

the equal clause of the Fourteenth Amendment

by maintaining and operating schools which deprived the

recipients of an equal educational opportunity. Both plain-

tiffs and defendants were asked to submit plans to remedy

the inequality found to exist.

The cause is then presently before us for the purpose of

fashioning a remedy which hopefully will establish equality

of educational opportunity in the Court designated segre-

gated schools.

Both plaintiffs and defendants have submitted lengthy

plans for improving educational opportunity and many of

the foremost authorities on this subject, both with respect to

_ the Denver area and nationwide, have been called upon to

testify...

I.

e Drscnrrriox or Plans

Plaintiffs’ proposed plan involves a three-step process

for raising achievement and equalizing educational oppor-

_ tunity. The first step is desegregation, or the elimination of

racial isolation of minority students through cross-trans-

_ portation of pupils. Plaintiffs have concentrated on this

Phase of the program and the plans for desegregation are,

kor the most part, the product of computer analysis. The

. Om.

second phase involves integration, which the plaintiffs define

e

102a

Opinion of District Court of May 21, 1970

as the educational process of promoting mutual respect and

understanding among students, teachers and the commun-

ity. The final portion of the plaintiffs’ plan suggests a sys-

tem of compensatory education programs, carried out in an

integrated environment, designed to equalize achievement.

At the outset we note that plaintiffs urge that the Court

‘should reconsider certain schools which plaintiffs consider

“target” schools, but which the Court found not to be

segregated inferior schools. Plaintiffs call attention to the

fact that two schools, namely Elyria and Smedley, are not

only inferior in terms of achievement, but also meet the

guideline set by the Court that the school contain at least

70 to 75 percent Negro or Hispano students. Furthermore,

plaintiffs ask us to reconsider at least nine other schools

which have a combined minority population of over 70

percent.“ Failure to include Elyria and Smedley Schools

was due to oversight. These must now be included in a

plan for relief. We have concluded that none of the plans

are wholly suitable and that a carefully tailored plan con-

sisting of parts of the submitted ideas should be adopted.

Nevertheless, a brief description of the plaintiffs’ and de-

fendants’ proposals will furnish some understanding of

the problem and of this order.

Plaintiffs propose four alternative plans for desegrega-

tion of elementary schools. The first of these desegregates

the Court designated elementary schools by a system of

cross-bussing. The total number of schools involved would

be 29; the total number of students to be transported

would be 8,380; the average miles traveled per student one-

1 We concluded in our March 21 opinion that it was not ap-

propriate to place Negroes and Hispanos in one category to arrive

at a minority population of over 70 pereent. 313 F.Supp. at 69.

108a

Opinion of District Court of May 21, 1970

_ way would be 6.4; the minimum Anglo enrollment at any

school designated by the Court would total 54 percent.

The second proposed alternative plan calls for enrolling

only pupils in grades 4-6 in the 12 Court designated ele.

mentary schools. Each of these schools would be paired

Vith one or more Anglo schools which would be used only

for grades K-3, This plan would involve 31 schools; 11,109

students would be transported; the average number of

miles traveled per student one-way would be 6.3; minimum

Anglo enrollment at the Court designated schools would be

51 percent.

Plan three is similar to plan one except that it would

inelude all of plaintiffs’ target elementary schools rather

than just the Court designated elementary schools. It

would, of course, require a much greater transportation

effort involving as it does numerous schools which the

Court has not included.

Plan four is similar to plan two, except that all of plain-

tiffs’ target schools are provided with relief.

Alternative plans are submitted by plaintiffs for deseg-

regating junior high schools. The first of these would de-

- gegregate Cole Junior High School by reassigning to Cole

some 1,038 students already being bussed to Thomas Jef-

ferson and John F. Kennedy. Also, students now being

bussed to Cole would be bussed instead to Thomas Jeffer-

son and John F. Kennedy. This plan would increase Anglo

- enrollment at Cole to 66 percent. The second alternative

plan would desegregate not only Cole, but also Horace

Mann, Lake, Morey and Baker Junior High Schools by a

system of cross-bussing similar to that involved in the first

alternative plan.

Plaintiffs also propose alternative programs for equaliz-

ing educational opportunity at Manual High School. First,

ee

104a

Opinion of District Court of May 21, 1970

they recommend alteration of the school attendance bound-

aries of Manual, East and South, to create long narrow

north-south corridors for each of the above schools. This

would result in many Anglo students from south Denver

attending Manual. As a second alternative, the plaintiffs

suggest that Manual be made an open school which could

be attended by any student in the District and which would

specialize in vocational and pre-professional training. This

plan is essentially the same as that proposed by the Board

with respect to Manual.

Finally, plaintiffs have suggested several programs

which would aid in creating cultural understanding and

respect as well as programs for equalizing educational

opportunity through compensatory education. These in-

clude faculty and staff inservice training and orientation,

programs for community involvement, use of paraprofes-

sionals, tutorial

This text is long and has been trimmed here. Open the source document for the complete record.