Reed v. Rhodes, C-73-1300.

• Decision Date: 31 August 1976
• Docket Number: No. C-73-1300.,C-73-1300.
• Citation: 422 F. Supp. 708
• Parties: Robert Anthony REED, III, et al., Plaintiffs, v. James A. RHODES et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

422 F. Supp. 708

Robert Anthony REED, III, et al., Plaintiffs, v. James A. RHODES et al., Defendants.

No. C-73-1300.

United States District Court, N. D. Ohio, E. D.

August 31, 1976.

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COPYRIGHT MATERIAL OMITTED

James L. Hardiman, Cleveland, Ohio, Nathaniel R. Jones, Gen. Counsel, NAACP, New York City, Thomas I. Atkins, Roxbury, Mass., for plaintiffs.

James E. Michael, Asst. Atty. Gen., State of Ohio, Columbus, Ohio, for defendant Gov. James Rhodes and Atty. Gen., State of Ohio.

Mark O'Neil, Weston, Hurd, Fallon, Paisley & Howley, Cleveland, Ohio, Mary A. Lentz, Ohio Dept. of Ed., Columbus, Ohio, for defendant Ohio State Bd. of Ed. and Martin W. Essex, Supt. of Public Instruction, Ohio Dept. of Ed.

Charles F. Clarke, George I. Meisel, William C. Hartman, James P. Murphy, Squire, Sanders & Dempsey, John H. Bustamante, Bustamante, Donohoe, Palmisano & Co., L. P. A., Cleveland, Ohio, for defendant Cleveland City Bd. of Ed. and its members, and Superintendent of the Cleveland City School Dist., Paul Briggs.

MEMORANDUM OPINION AND ORDER

BATTISTI, Chief Judge.

During at least the last 20 years, patterns of racial isolation in the Cleveland public school system have become steadily more pronounced. This situation is illustrated by a review of the percentage of all students attending regular¹ Cleveland Public schools whose school was a one-race² school:

                          1940:     88.37%
                          1950:     74.09%
                          1955:     71.55%
                          1960:     79.09%
                          1970:     86.07%
                          1975:     88.21%
                

Looking only to the above statistics, one could reasonably conclude that the Cleveland school system was in essentially the same position with respect to racial integration in both 1940 and 1975. A single statistical measure seldom is a full representation of an actual situation. In trying to understand racial patterns in the recent history of the Cleveland public school system, another measure sheds additional light on the subject. Examining the percentage of black students attending regular schools which were one-race schools in various years indicates that from 1940 to 1974, there was a steady trend toward concentration of black students in segregated schools:

                          1940:     51.03%
                          1950:     58.08%
                          1955:     57.72%
                          1960:     76.03%
                          1970:     90.00%
                          1975:     91.75%
                

These figures show that with one exception, the proportion of black students in the Cleveland public schools who have been regularly receiving their education in an integrated setting has steadily diminished during the past 35 years.

These statistics and the underlying situation which they describe give rise to many troubling questions. Most of these questions however are beyond the purview of this court in resolving the issue now before it. In reviewing the above facts as well as all of the evidence included in the voluminous record in this case, the court has sought an answer to a single question of constitutional law. To what extent, if any, are the defendants in this case, public officials and public agencies, responsible for creating or for maintaining or both the segregated situation in the Cleveland public schools?

The plaintiffs are certain named students in the Cleveland public school system and their parents and the National Association for the Advancement of Colored People. They are proceeding on behalf of all persons in the state of Ohio who are similarly situated to them. Their complaint alleges that the defendants, the Governor and Attorney General of Ohio, the State Board of Education, the Superintendent of Public Instruction of the Ohio Department of Education, the Cleveland Board and its individual members and the Superintendent of the Cleveland City Schools, under color of state law, have pursued policies, customs, practices or usages in operating the Cleveland public school system in a manner that had the "purpose and effect of perpetuating a segregated public school system."

It is deceptively easy to state the three elements which the plaintiffs must prove to establish their case. The court has the guidance of many recent court opinions explicating what duties the 14th Amendment of the Federal Constitution imposes on public officials in operating programs of public education. At the outset, it is useful to summarize the state of the law to focus the task of this court.

The Constitutional guarantees afforded under the Fourteenth Amendment entered a new era in 1954 with the landmark decision of the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). That Case, which serves as the benchmark in the area of school desegregation, set forth a holding, the simplicity and brevity of which belied its national import:

"in the field of public education the doctrine of `separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated . . . are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. . ." Id. at 495, 74 S.Ct. at 692.

In the wake of Brown, trial and appellate courts sought to ascertain what school districts bore the brand of unconstitutional duality and how such districts should be dismantled and reconstructed in a unitary fashion. Initial efforts were in the south. Northern school desegregation cases constitute a relatively recent development.³

As in so many areas of the law, the critical issue in school desegregation cases is intent. It is an amorphous term that can mean different things in different factual and legal contexts. Because intent is such a subjective element, existing in pure form only in the minds of individual people, courts have found it necessary to discern evidence of intent through an analysis of its objective manifestations.⁴ This is admittedly an artificial mechanism, but one not unknown to other areas of the law,⁵ and without which, courts would be hard put to protect individual rights.

At the outset it should be noted that the instant action does not involve a statutorily mandated dual school system that is segregated on the basis of race. Such systems were particularly prevalent in the south and were ultimately struck down in Brown.⁶ The segregation alleged in this case was not imposed by legislative fiat but rather is alleged to have been the result of purposeful action on the part of the defendants. This is to say that the segregation complained of is alleged to be de jure as opposed to de facto. The distinction transcends far more than semantics for the dichotomy between the two conditions appears to remain a very viable one.⁷

What then, is the yardstick against which the conduct complained of will be measured? The applicable law in this regard was set forth perhaps more succinctly in Oliver v. Michigan State Board of Education, 508 F.2d 178 (6th Cir. 1974). Therein the Sixth Circuit Court of Appeals stated:

"A finding of de jure segregation requires a showing of three elements: (1) action or inaction by public officials (2) with a segregative purpose (3) which actually results in increased or continued segregation in the public schools. A presumption of segregative purpose arises when plaintiffs establish that the natural, probable and foreseeable result of public officials' action or inaction was an increase or perpetuation of public school segregation. The presumption becomes proof unless defendants affirmatively establish that their action or inaction was a consistent and resolute application of racially neutral policies." Id. at 182 (footnote omitted).

In almost the same breath, the court went to great lengths to say that the inquiry does not go to individual motives or prejudices, but rather to the overall condition that has been brought about as a result of official action.

"When constitutional rights are involved, the issue is seldom whether public officials have acted with evil motives or whether they have consciously plotted with bigotry in their hearts to deprive citizens of the equal protection of the laws. Rather, under the test for de jure segregation, the question is whether a purposeful pattern of segregation has manifested itself over time, despite the fact that individual official actions, considered alone, may not have been taken for segregative purposes and may not have been in themselves constitutionally invalid." Id. at 182-83.

It is thus clear that the necessary intent upon which a finding of de jure segregation is predicated, may be evidenced by the natural and foreseeable effects of the official practices and policies pursued, Hart v. Community School Board of Education, 512 F.2d 37, 50 (2d Cir. 1975). These condemning effects can be either the creation of a segregated condition or the continuation of an existing segregated condition that may have found its genesis in extrinsic forces, Morgan v. Kerrigan, 509 F.2d 580, 585 (1st Cir. 1974).

The underpinning of this approach in the area of school desegregation is the Supreme Court's holding in Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). The precise holding of that case was:

"that a finding of intentionally segregative school board actions in a meaningful portion of a school system, as in this case, creates a presumption that other segregated schooling within the system is not adventitious. It establishes, in other words, a prima facie case of unlawful segregative design on the part of school authorities, and shifts to those authorities the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions." Id. at 208, 93 S.Ct. at 2697.

Thus, courts have combined the test for de jure segregation with the holding of Keyes to articulate the applicable standard of liability in a school desegregation case:

"We

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