313 F.Supp. 61 (D.Colo. 1970), Civ. A. C-1499, Keyes v. School Dist. No. One, Denver, Colorado

Docket Nº:Civ. A. C-1499
Citation:313 F.Supp. 61
Party Name:Keyes v. School Dist. No. One, Denver, Colorado
Case Date:March 21, 1970
Court:United States District Courts, 10th Circuit, District of Colorado
 
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313 F.Supp. 61 (D.Colo. 1970)

Wilfred KEYES, individually and on behalf of Christi Keyes, a minor, et al., Plaintiffs,

v.

SCHOOL DISTRICT NUMBER ONE, DENVER, COLORADO, the Board of Education, School District Number One, Denver, Colorado, William C. Berge, individually and as President, Board of Education, School District Number One, Denver, Colorado, Stephen J. Knight, Jr., individually and as Vice President, Board of Education, School District Number One, Denver, Colorado, James C. Perrill, Frank K. Southworth, John H. Amesse, James D. Voorhees, Jr., and Rachel B. Noel, individually and as members, Board of Education, School District Number One, Denver, Colorado; Robert D. Gilberts, individually and as Superintendent of Schools, School District Number One, Denver, Colorado, Defendants, Mr. and Mrs. Douglas Barnett, individually and on behalf of Jade Barnett, a minor, et al., Intervening Defendants.

Civ. A. No. C-1499.

United States District Court, D. Colorado.

March 21, 1970

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Barnes & Jensen, by Craig S. Barnes, Holland & Hart, by Gordon G. Greiner, Denver, Colo., Conrad K. Harper, New York City, for plaintiffs.

Wood, Ris & Hames, by William K. Ris, Henry, Cockrell, Quinn & Creighton, by Thomas E. Creighton, Benjamin L. Craig, Michael Jackson, Denver, Colo., for defendants, except John H. Amesse, James D. Voorhees, Jr., and Rachel B. Noel, as individuals.

Charles F. Brega, Robert E. Temmer, Denver, Colo., for intervening defendants.

MEMORANDUM OPINION AND ORDER

WILLIAM E. DOYLE, District Judge.

This is an action in which plaintiffs, parents of children attending Denver Public Schools, sue individually and on 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(1) The Board of Education for School District No. One, Denver, unconstitutionally rescinded certain resolutions which were designed to desegregate specific schools within the District;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 maintained 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 their unconstitutional acts.

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).

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 testimony 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 discrimination.

Plaintiffs' first claim for relief deals solely with the purpose and effect of the rescission of Resolutions 1520, 1524 and 1531. Plaintiffs' second claim for relief consists of three counts. 1 The first count of the second claim alleges that the Board of Education has purposely created and/or maintained racial segregation in certain schools within the District through boundary changes, school site selection and the maintenance of the

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neighborhood school policy. The second count alleges that the segregated schools within the District are grossly inferior and provide an unequal educational 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, considering the explanatory evidence offered at trial. Secondly, we will consider the evidence which has been offered relative to segregation and discriminatory educational opportunity in the core city schools and, finally, we will discuss possible remedies.

I.

Plaintiffs' first claim for relief alleges that the rescission of School Board Resolutions 1520, 1524 and 1531 was unconstitutional because its purpose and effect was to perpetuate racial segregation in the affected schools. This claim for relief was the subject of the hearing on plaintiffs' motion 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, Stedman, 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 concentrated 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 line. Since 1960, this migration has extended east of Colorado Boulevard into Park Hill. It is the acts of the defendants, taken in the face of this population movement, which plaintiffs contend created the de jure segregation complained of in the first claim for relief.

Barrett Elementary School was opened in 1960 at East 29th Avenue between Jackson Street and Colorado Boulevard. 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. 2 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 predominantly 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 boundary 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

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than to accommodate any significant projected increase in area population.

The above factors fail to provide a basis for inferring that a justifiably rational purpose existed for the action taken with respect to Barrett. First, the District owned other sites east of Colorado Boulevard. 3 Had a school been 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 1060 many elementary school subdistricts included areas on both sides of busy thoroughfares indicates that safety was not a primary factor in setting school boundaries. 4 Third, because of Barrett's small size and the location of its subdistrict boundaries, Barrett relieved overcrowding only at the two predominantly Negro elementary schools west of Colorado Boulevard while affording no relief to the overcrowded Anglo Stedman elementary 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 in some Park Hill schools to relieve overcrowding. 5 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...

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