445 F.2d 990 (10th Cir. 1971), 336-70, Keyes v. School Dist. No. 1, Denver, Colo.

Docket Nº:336-70, 337-70.
Citation:445 F.2d 990
Party Name:Wilfred KEYES et al., Plaintiffs-Appellees, v. SCHOOL DISTRICT NO. 1, DENVER, COLORADO, et al., Defendants-Appellants. Wilfred KEYES et al., Plaintiffs-Appellants, v. SCHOOL DISTRICT NO. 1, DENVER, COLORADO, et al., Defendants-Appellees.
Case Date:June 11, 1971
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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445 F.2d 990 (10th Cir. 1971)

Wilfred KEYES et al., Plaintiffs-Appellees,

v.

SCHOOL DISTRICT NO. 1, DENVER, COLORADO, et al., Defendants-Appellants.

Wilfred KEYES et al., Plaintiffs-Appellants,

v.

SCHOOL DISTRICT NO. 1, DENVER, COLORADO, et al., Defendants-Appellees.

Nos. 336-70, 337-70.

United States Court of Appeals, Tenth Circuit.

June 11, 1971

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Gordon G. Greiner, Denver, Colo. (Conrad K. Harper, New York City, on the brief), for Keyes, and others.

William K. Ris, Denver, Colo. (Benjamin L. Craig and Michael H. Jackson, Denver, Colo., on the brief), for School District No. 1, and others.

Before PICKETT, HILL and SETH, United States Circuit Judges.

HILL, Circuit Judge.

This is a suit in which the parents of children attending Denver Public Schools sued individually, on behalf of their minor children, and on behalf of classes of persons similarly situated, to remedy the alleged segregated condition of certain Denver schools and the effects of that condition. The School District, the present Board of Education and its Superintendent were all named as defendants. The action was brought under 42 U.S.C. §§ 1983, 1985, 28 U.S.C. § 1343 (3), (4), and the Fourteenth Amendment of the United States Constitution seeking to enjoin defendants from maintaining, requiring, continuing, encouraging and facilitating separation of children and faculty on the basis of race, and further from unequally allocating resources, services, facilities and plant on the basis of race. Declaratory relief was also sought under 28 U.S.C. § 2201. On appeal, defendants appear as appellants and cross-appellees, and plaintiffs appear as appellees and cross-appellants.

The reported background is extensive. In July, 1969, appellees' motion for preliminary injunction was granted in an opinion found at 303 F.Supp. 279. The motion sought to enjoin the rescission of Resolutions 1520, 1524 and 1531. The preliminary injunction was appealed and was remanded by this court for further findings and consideration of additional questions. Thereafter, the preliminary injunction was supplemented and modified at 303 F.Supp. 289. The decision on the merits is recorded at 313 F.Supp. 61, and the remedies are set forth in an opinion at 313 F.Supp. 90.

The complaint set out two separate causes of action. The first cause contained six counts, all of which pertained to rescission of School Board Resolutions 1520, 1524 and 1531. Therein the plaintiffs alleged that these Resolutions were an attempt by the School Board to desegregate and integrate the public schools of Northeast Denver, and that the rescission

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of these resolutions was unconstitutional because the purpose and effect was to perpetuate racial segregation in the affected schools. In connection with this cause of action, plaintiffs urge that the rescission of the Board Resolutions constituted affirmative state action resulting in de jure segregation in the schools affected thereby. The second cause of action contained three counts that are pertinent here. The first count, in effect, alleged that through affirmative acts the defendants and their predecessors deliberately and purposely created and maintained racial and ethnic segregation in the so-called 'core' area schools within the district. The second count, in effect, alleged that the defendants had purposely maintained inferior schools by their method of allocation to the schools, and such practice has caused those schools to be substantially inferior to other schools within the district with predominantly Anglo students. The effect of such practice, plaintiffs urged, denied the minority students an equal educational opportunity in violation of the equal protection clause of the Fourteenth Amendment. The third count was an attack upon the school district's neighborhood school policy. They urge such policy to be unconstitutional because it results in segregated education.

In substance, the trial court found and concluded as to the first claim that the named schools in Northeast Denver were segregated by affirmative state action. In its findings, the trial court noted specific instances of boundary gerrymandering, construction of a new school and classrooms, minority-to-majority transfers, and excessive use of mobile classroom units in this section of the district, all of which amount to unconstitutional state segregation. In addition, it was held that the adoption of Resolutions 1520, 1524 and 1531 was a bona fide attempt by the Board to recognize the constitutional rights of the students affected by prior segregation, and that the act of repudiating these Resolutions was unconstitutional state action resulting in de jure segregation. As to the second claim, on the first count, the court found that the acts complained of in the core area were not racially inspired, and accordingly the allegations of de jure segregation were not accepted. On the second count, the court found that although the core area schools were not segregated by state action, fifteen designated schools should be granted relief because it was demonstrated that they were offering their pupils an unequal educational opportunity in violation of the Fourteenth Amendment equal protection clause. Upon findings that the Denver neighborhood school policy had been constitutionally maintained under the standards set forth in Board of Education of Oklahoma City Public Schools, Independent Dist. No. 89 v. Dowell, 375 F.2d 158 (10th Cir. 1967), and Downs v. Board of Education of Kansas City, 336 F.2d 988 (10th Cir. 1964), relief on the third count was denied.

On appeal in No. 336-70, appellants attack the findings and conclusions as to the first claim and the second count of the second claim. In the cross-appeal, No. 337-70, the Keyes class urge error in the findings and conclusions regarding the first and third counts of the second claim.

Appellants' initial argument in No. 336-70 makes a two-fold attack on the findings and conclusions regarding the existence of de jure segregation in the schools located in Denver's Northeast sector. First, it is contended that under a proper application of the law, the evidence will not support a finding of de jure segregation. Second, appellants argue that the act of rescinding Resolutions 1520, 1524 and 1531 was not an act of de jure segregation.

A complete understanding and resolution of the issues presented by appellants requires a survey of the events which preceded the Board's action in rescinding the three Resolutions. In the Denver Public School System, there are

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92 elementary schools, 16 junior high schools, and 9 senior high schools. 1 There has never been a law in Colorado requiring separate educational facilities for different races. The policy to which the School Board has consistently adhered is the neighborhood school plan. The goal is a centrally located school which children living within the boundary lines must attend. Although the Board has no written policy governing the setting of attendance boundaries, several factors have apparently been employed. Among these are current school population in an attendance area, estimated growth of pupil population, the size of the school, distance to be traveled, and the existence of natural boundaries. 2 The Board also attempts to draw junior high school and senior high school boundary lines so that all students transferring from a given school will continue their education together.

On several occasions during the 1960's, the Board formed committees to study the equality of educational opportunities being provided within the system. In 1962, the Voorhees Committee was assigned the onerous task. That group recognized that in a school district where there are concentrations of minority racial and ethnic groups, the result of a neighborhood school system may be unequal educational opportunities. Therefore, they recommended that the School Board consider racial, ethnic and socioeconomic factors in establishing boundaries and locating new schools in order to create heterogeneous school communities. The recommendations were apparently ignored.

Thereafter, in May, 1964, the Board passed Policy 5100 which also recognized that the neighborhood school plan resulted in the concentration of some minority racial and ethnic groups in certain schools. Rather than abandon the neighborhood school concept, however, the Board decided to incorporate 'changes or adaptations which result in a more diverse or heterogeneous racial and ethnic school population, both for pupils and for school employees.' But nothing of substance was accomplished.

In 1966, the Berge Committee was formed to examine Board policies with regard to the location of schools in Northeast Denver and to suggest changes which would lead to integration of Denver students. This committee recommended that no new schools be built in Northeast Denver; that a cultural arts center be established for student use; that educational centers be created; and that superior educational programs be initiated for Smiley and Baker Junior High Schools. Again, the recommendations were not effected.

In 1968, the Board passed the Noel resolution which again formally recognized the problem of concentrated racial and ethnic minority school populations in Northeast Denver and the possibility of resulting unequal educational opportunities. The resolution directed the

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Superintendent of Schools to submit to the Board a comprehensive plan for integrating the Denver schools. A plan was submitted, and after a four-month study, Resolutions 1520, 1524 and 1531 were passed. In essence, each of these resolutions sought to spread...

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