U.S. v. School Dist. of Omaha, s. 74-1964

Decision Date07 July 1975
Docket NumberNos. 74-1964,74-1993,s. 74-1964
Citation521 F.2d 530
PartiesUNITED STATES of America, Plaintiff-Appellant, and Nellie Mae Webb et al., Plaintiffs-Intervenors-Appellants, v. SCHOOL DISTRICT OF OMAHA et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Brian K. Landsberg, Atty., Dept. of Justice, Washington, D. C., for plaintiff-appellant.

Robert V. Broom, Legal Aid Society, Omaha, Neb., for intervenor Webb.

Gerald P. Laughlin, Omaha, Neb., for defendants-appellants.

Before JONES, Senior Circuit Judge, * and HEANEY and BRIGHT, Circuit Judges.

HEANEY, Circuit Judge.

The issue presented by this appeal is whether the undisputed racial segregation which exists in the Omaha public schools denies to black students the equal protection of the laws guaranteed by the fourteenth amendment. Because segregated educational facilities were never mandated by law, it is conceded that a finding of unconstitutionality is dependent on a finding that the segregation was brought about or maintained by intentional state action. We conclude that sufficient evidence was presented to establish that segregation in the Omaha School District 1 was intentionally created and maintained by the defendants. 2 Accordingly, we require that the Omaha School District be integrated, establish guidelines for achieving that goal, and remand to the District Court to supervise the process.

I. THE SEGREGATED NATURE OF THE SCHOOL DISTRICT.

The Omaha public schools are segregated. The District Court so found, and the defendants do not contest that finding. Nevertheless, we briefly describe the segregated nature of the schools. In 1973-74, the School District of Omaha had a student population of 60,502, of whom 20% Were black. It operated eight high schools, twelve junior highs, one middle school (grades 5-7), and seventy-eight elementary schools. Over 50% Of the black students in the District attended schools which had an 80% To 100% Black enrollment, 3 while 73% Of the white students attended schools with black enrollments of less than 5%.

At the high school level, Tech was 96% Black, and shared a common attendance zone with Central, which was 32% Black. North was 36% Black, Benson was 14% Black, and South was 3% Black. The remaining three high schools enrolled less than fifteen black students.

At the junior high level, Horace Mann was 97% Black, Monroe was 39% Black, McMillan was 36% Black, Indian Hill was 19% Black, Hale was 10% Black, and Lewis and Clark was 5% Black. 4 The six remaining junior high schools had enrollments of less than 3% Black. One middle school, Martin Luther King, opened in September, 1973, with an 82% Black enrollment.

At the elementary level, three schools (Kennedy, Lothrop, and Conestoga) were over 90% Black. An additional seven were between 75% And 90% Black, two were between 50% And 75% Black, two were between 35% And 50% Black, ten were between 10% And 35% Black, three were between 5% And 10% Black, and eighteen were between 1% And 5% Black. Thirty-three elementary schools were either all white or had less than 1% Black enrollment.

The faculties were also segregated. In 1972-73, the latest year for which figures were provided in the record, the District employed 193 black teachers. Of that number, 121 or 62% Were assigned to majority black schools, 5 and 159 or 82% Were assigned to the twenty-three schools which had a black enrollment exceeding 25%. Thus, only 18% Of the black teachers were assigned to the seventy-five schools with enrollments less than 25% Black.

At the high school level, 23 of the 49 black teachers were assigned to Tech (95% Black), and 44 black teachers (90% Of the total) were assigned to the three high schools with more than 30% Black enrollment: Tech, Central and North. Only five black high school teachers were assigned to the five remaining high schools, and two of those were assigned to Benson, which was 10% Black. One high school, Northwest, had no black teachers.

At the junior high level, 18 or the 38 black teachers were assigned to Mann (98% Black), and 28 black teachers (74% Of the total) were assigned to the three junior high schools with more than 30% Black enrollment: Mann, McMillan and Monroe. The ten remaining black teachers were assigned to five junior high schools. Four junior high schools had no black teachers.

At the elementary level, 79 of the 106 black teachers (or 75%) were assigned to ten schools with black enrollments of over 75%, and 86 black teachers (81% Of the total) were assigned to the sixteen elementary schools with black enrollments exceeding 25%. The remaining 20 black elementary teachers were sprinkled over the sixty-two schools with less than 25% Black enrollment. Lothrop elementary (96% Black) had more black elementary teachers than those sixty-two schools combined. At least forty-six elementary schools with predominantly white enrollments did not have a single black faculty member.

No discussion of the segregated nature of the Omaha public schools would be complete without mention of the segregated housing patterns in the city and some of the reasons therefor. The area in which most of the black community resides is commonly referred to as the "Near North Side." The area encompassed by that term has changed as blacks have spread out from the core area, particularly toward the northwest. Newly developing residential areas on the periphery of the city, as well as older residential areas beyond the Near North Side's "encroachment pattern," remain almost exclusively white.

The evidence established that segregated housing patterns in the city were the result of discriminatory state and private actions. Between 1938 and 1953, the Omaha Housing Authority opened five large family-occupied public housing projects. Four were constructed in, or adjacent to, the Near North Side, and each was over 95% Black in 1973. One was located in South Omaha, and became a "white project." The Housing Authority encouraged racially discriminatory housing assignment by allowing white applicants for public housing to turn down openings in "black" projects while remaining at the top of the priority list. Compare Gautreaux v. Chicago Housing Authority, 296 F.Supp. 907 (N.D.Ill.1969). By 1955, the school board was aware of the segregated nature of the housing projects and was struggling to cope with large increases in black enrollment causing overcrowding at Druid Hill, Kennedy, Kellom, Lake, and Lothrop elementary schools. 6

Private racial discrimination in the housing market was also prevalent. It was common for racial covenants to be included in deeds even after Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). In 1953, the Code of Ethics discouraged realtors from selling property to blacks in a white neighborhood. In the late 1960's sellers were given an option by the realtors to cross out a sentence barring discrimination in listing agreements. And, at least from 1965 through 1968, it was common practice to put the word "CONDITIONS" on any multiple listing where the seller had indicated that he did not wish to sell the property to minorities. Approximately one-third to one-half of multiple listing cards during that period had this notation.

II. THE LEGAL STANDARD GOVERNING PROOF OF UNCONSTITUTIONAL SCHOOL SEGREGATION.

Although Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), dealt only with a school system in which segregation was mandated by law, it has since been made clear in a series of "northern and western" cases 7 that no intentionally segregated school system can be tolerated under the Constitution. It is equally clear that the "intent" which triggers a finding of unconstitutionality is not an intent to harm black students, but simply an intent to bring about or maintain segregated schools. Thus, even if a school board believes that "separate but equal" is superior for black children, that belief will not save the intentional segregation from a finding of unconstitutionality. "Benevolence of motives does not excuse segregative acts." Oliver v. Michigan State Board of Education, 508 F.2d 178, 182-183 (6th Cir. 1974), Cert. denied, --- U.S. ---, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975). See also Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Hart v. Community School Bd. of Ed., N. Y. Sch. Dist. # 21, 512 F.2d 37, 50 (2nd Cir. 1975).

Since segregation in the Omaha public schools was obvious at the time of trial, the only question presented to the District Court was whether or not the defendants intended to bring about or maintain that condition. The District Court properly recognized that segregative intent usually must be inferred. It held, however, that the burden of proving such intent rested at all times on the appellants, and concluded that the appellants had failed to meet that burden, despite its findings that various acts and omissions of the defendants had the natural, probable, foreseeable and actual consequence of creating and maintaining segregation. 8

We hold that a presumption of segregative intent arises once it is established that school authorities have engaged in acts or omissions, the natural, probable and foreseeable consequence of which is to bring about or maintain segregation. 9 When that presumption arises, the burden shifts to the defendants to establish that "segregative intent was not among the factors that motivated their actions." Keyes v. School District No. 1, 413 U.S. 189, 210, 93 S.Ct. 2686, 2698, 37 L.Ed.2d 548 (1973).

Two other Circuits have recognized a presumption based on the natural, probable and foreseeable consequences test. Hart v. Community School Bd. of Ed., N. Y. Sch. Dist. # 21, supra 512 F.2d at 50-51; Oliver v. Michigan State Board of Education, supra 508 F.2d at 182. The Second Circuit reasoned:

* * * (W)e believe that a...

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