U.S. v. Board of School Com'rs of City of Indianapolis, Ind.

• Citation: 637 F.2d 1101
• Decision Date: 06 October 1980
• Docket Number: 78-1871,Nos. 78-1800,78-1996,s. 78-1800
• Parties: UNITED STATES of America, Plaintiff-Appellee, Donny Brurell Buckley and Alycia Marquese Buckley, etc., Intervening Plaintiffs-Appellees, v. The BOARD OF SCHOOL COMMISSIONERS OF the CITY OF INDIANAPOLIS, INDIANA et al., Defendants-Appellants, The Metropolitan School District of Perry Township, Marion County, Indiana, et al., Added Defendants-Appellants. through 78-2006, 78-2039, 78-2221, 79-1831 through 79-1838, 79-1874 and 79-1875.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1101

637 F.2d 1101

UNITED STATES of America, Plaintiff-Appellee, Donny Brurell Buckley and Alycia Marquese Buckley, etc., Intervening Plaintiffs-Appellees, v. The BOARD OF SCHOOL COMMISSIONERS OF the CITY OF

INDIANAPOLIS, INDIANA et al., Defendants-Appellants,

The Metropolitan School District of Perry Township, Marion

County, Indiana, et al., Added Defendants-Appellants.

Nos. 78-1800, 78-1871, 78-1996 through 78-2006, 78-2039,

78-2221, 79-1831 through 79-1838, 79-1874 and 79-1875.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 25, 1979.

Decided April 25, 1980.

Certiorari Denied Oct. 6, 1980. See 101 S.Ct. 114, 115.

Donald A. Schabel, Richard D. Wagner, Donald P. Bogard, Deputy Atty. Gen., William F. Harvey, Special Counsel to Atty. Gen., William M. Evans, Indianapolis, Ind., for defendants-appellants.

John O. Moss, John Preston Ward, Indianapolis, Ind., Thomas I. Atkins, Boston, Mass., William L. Taylor, Center for Nat'l Policy Review, Catholic Univ. Law School, Washington, D.C., Richard J. Darko, Indianapolis, Ind., Mark L. Gross, Dept. of Justice, Washington, D.C., for intervening plaintiffs-appellees.

Before FAIRCHILD, Chief Judge, and SWYGERT and TONE, Circuit Judges.

FAIRCHILD, Chief Judge.

The Indianapolis School desegregation case is now entering its second decade. ¹ It involves a municipality, the (present) City of Indianapolis, which contains within its borders more than a half dozen separate and autonomous school districts. Eight years ago the district court determined that the fourteenth amendment violations committed by the largest of those districts (the Indianapolis Public Schools-IPS) and the State of Indiana could be remedied only by a desegregation plan which would transfer students from IPS to the predominately white school districts which surround it. ² After an appeal and a remand to the district court for further consideration, ³ we In his most recent opinions, which are the ones now before us, the district court judge found that the exclusion of schools from the Uni-Gov legislative scheme was done with a racially discriminatory purpose. He found a similar racially discriminatory purpose in the failure of the Housing Authority of the City of Indianapolis (HACI) to build any units outside of the old central city of Indianapolis despite legislative authority to do so. He also held that certain legislation ⁷ enacted by the Indiana legislature in response to his earlier decisions in the case allowed him to implement an interdistrict remedy without regard to the legislative intent questions posed by the Supreme Court and by our decision. He rejected, however, attempts by the IPS to establish that intradistrict violations by IPS had a segregative impact on housing patterns and school enrollment patterns throughout the city. He also denied requests by the United States and IPS to allow immediate implementation of an intradistrict remedy. On the issue of remedy he reaffirmed his earlier determination that the appropriate remedy is a student reassignment plan which would transfer black students from IPS to the other districts within the city until each of the surrounding districts is approximately 15% black and then reassign the remaining IPS students within IPS to achieve complete desegregation within the IPS boundaries. He also ordered that certain in-service training programs be implemented, with the cost to be borne by the State of Indiana, and made permanent his injunction against any expansion of public housing (except for the elderly) within the boundaries of IPS.

affirmed, finding that the standard for interdistrict relief established by Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) were met in this case, at least with regard to those districts within the (present) City of Indianapolis. ⁴ The Supreme Court vacated and remanded for further consideration in light of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) and Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). ⁵ On reconsideration we reaffirmed our holding that certain acts of the State of Indiana, particularly in connection with the "Uni-Gov" legislation which created the new city boundaries, had interdistrict effect, but remanded the case to the district court for findings of intent in light of the cases mentioned by the Supreme Court and evaluation of other issues, particularly regarding the location of public housing projects, in light of Milliken, Arlington Heights, and Dayton Board of Education v. Brinkman (I) (433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977)). ⁶

Although virtually all of these decisions are challenged by one or more of the parties to these appeals, the central issue remains the propriety of a desegregation plan that extends to those parts of the City of Indianapolis which are in separate and independent school districts outside the boundaries of the Indianapolis Public Schools. We will address that issue in Part I of the opinion, discussing in turn the evidence regarding Uni-Gov, housing, and the interdistrict effects of segregation within IPS. In Part II we will turn to the other issues raised by the various appellants.

I

As we noted in our last opinion (573 F.2d 400), an interdistrict remedy such as that ordered by the district court must be predicated on a finding that official action, taken with a discriminatory purpose, was a substantial cause of interdistrict segregation. Milliken v. Bradley, 418 U.S. 717, 744-45, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974); Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). The plaintiffs here pursued two independent avenues of proof in their attempt to make the

requisite showings. The first centered around the exclusion of the Indianapolis Public Schools from the 1969 legislation which for most other purposes created a single metropolitan form of government for Marion County. The second concerned the governmental decision to locate all public housing projects within the old city of Indianapolis (and thus within the borders of IPS). In addition, IPS attempted to prove that de jure segregation of the IPS schools was in part responsible for the segregated housing patterns found throughout the county. The district court found that only the Uni-Gov and housing evidence supported an interdistrict remedy, rejecting as not credible the expert witnesses called by IPS in its attempt to establish the third point.

UNI-GOV

In our last opinion we held that the exclusion of schools from the Uni-Gov legislation passed in 1969

"meets the requirements of Milliken and therefore can be used as a basis for imposing an interdistrict remedy if the district court finds that the General Assembly, in enacting the series of legislation, acted with a discriminatory intent or purpose."

573 F.2d 400, 408.

The district court has now found that the actions of the General Assembly "were done, at least in part, with the racially discriminatory intent and purpose of confining black students in the IPS school system to the 1969 boundaries of that system, thereby perpetuating the segregated white schools in suburban Marion County." 456 F.Supp. 183. The appellants vigorously assert that there is no support in the record for that finding, disputing not so much the evidence itself, but rather whether taken as a whole, it supports the district court's conclusion.

In its remand for consideration of the discriminatory purpose question, the Supreme Court referred us to Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1967) and Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). Washington v. Davis sets forth the intent requirement, but says little about how it is to be met, apart from noting that

"Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than on another. . . . Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution."

426 U.S. 229, 242, 96 S.Ct. 2040, 2048-2049, 48 L.Ed.2d 597.

Justice Stevens, concurring, notes that the degree and type of proof needed to establish intent may vary considerably from one sort of case to another, and that

"Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor. For normally the actor is presumed to have intended the natural consequences of his deeds. This is particularly true in the case of governmental action which is frequently the product of compromise, of collective decisionmaking, and of mixed motivation. It is unrealistic, on the one hand, to require the victim of alleged discrimination to uncover the actual subjective intent of the decisionmaker or, conversely, to invalidate otherwise legitimate action simply because an improper motive affected the deliberation of a participant in the decisional process."

426 U.S. 229, 253, 96 S.Ct. 2040, 2054, 48 L.Ed.2d 597.

The Arlington Heights decision provides considerably more guidance. That decision calls for "a sensitive inquiry into such circumstantial and direct evidence of intent as may be available" and then suggests as possible lines of inquiry, in addition to discriminatory impact, "the historical background of the decision," "the specific sequence of events leading up to the challenged Indianapolis and Marion County, before Uni-Gov, were not unlike dozens of other metropolitan areas throughout the country. The central city, Indianapolis, was losing population and becoming more predominately black and poor while the surrounding suburban areas were growing rapidly, but, with a few exceptions, remaining almost...