# Appendix — Keyes v. School Dist. No. 1, Denver > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0182%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1973 - **Citation:** 413 U.S. 189 ## Text : , | 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. — 8 = ¥ 26 ave 2 rg , 8 5 * — — 3 44 11 8 i 16% ~ Ave. 8 N 8 : aes ~ 44 PRON Tv 16 : Biro. W egg fe- Mile | a ee. | , — oe nt nt CO Fax 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0182%3A06. Public record. Not legal advice.