Oliver v. Kalamazoo Bd. of Ed.

• Decision Date: 15 December 1980
• Docket Number: 79-1101 and 79-1723,Nos. 79-1042,s. 79-1042
• Citation: 640 F.2d 782
• Parties: Michelle OLIVER et al., Plaintiffs-Appellees, v. KALAMAZOO BOARD OF EDUCATION et al., Defendants-Appellees, State Board of Education et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 782

640 F.2d 782

Michelle OLIVER et al., Plaintiffs-Appellees, v. KALAMAZOO BOARD OF EDUCATION et al., Defendants-Appellees, State Board of Education et al., Defendants-Appellants.

Nos. 79-1042, 79-1101 and 79-1723.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 14, 1980.

Decided Dec. 15, 1980.

Frank J. Kelley, Atty. Gen. of Mich., Thomas L. Casey, Gerald F. Young, Richard P. Gartner, Asst. Attys. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Mich., Michael H. Jackson, Denver, Colo., Louis R. Lucas, Ratner, Sugarmon, Lucas, Salky & Henderson, Memphis, Tenn., for defendants-appellants State Bd. of Ed. et al.

Arthur Staton, Jr., Ford, Krickard, Staton, Allen & Decker, Kalamazoo, Mich., for defendants-appellees Kalamazoo Bd. of Ed. et al.

Philip L. Hummer, Kalamazoo, Mich., Nathaniel R. Jones, Gen. Counsel, NAACP, New York City, Stuart J. Dunnings, Jr., Dunnings & Canady, Lansing, Mich., John A. Dziamba, Williamatic, Conn., Thomas I. Atkins, Boston, Mass., for plaintiffs-appellees.

James A. White and Thomas A. Baird, Foster, Swift, Collins & Coey, Lansing, intervenors.

James S. Brady, U. S. Atty., Grand Rapids, Mich., Samuel J. Flanagan, Jr., Brian K. Landsberg, Dept. of Justice, for U. S. intervenors.

Before WEICK and BROWN, Circuit Judges, and PECK, Senior Circuit Judge.

BAILEY BROWN, Circuit Judge.

This school desegregation case involving the city schools of Kalamazoo, Michigan began in August, 1971, when this action was brought by the National Association for the Advancement of Colored People and certain students in the system. The Kalamazoo Board of Education and its individual members (referred to in the record and herein collectively as KBE) were named as defendants. Early in the litigation, the Kalamazoo Education Association and the Michigan Education Association, teacher organizations, intervened first as amici and then as parties plaintiff, and the Michigan State Board of Education and its Superintendent of Public Instruction (referred to in the record and herein collectively as SBE) were joined as defendants.

The district judge, Honorable Noel P. Fox, promptly entered a temporary injunction The present round of litigation began in 1977 when plaintiffs sought additional and ancillary relief. The district court ordered KBE to file a progress report, which was done, and then the district court appointed experts to study the report and the school system and to make recommendations to it. In November, 1978 and in January, 1979, the district court entered three orders requiring SBE to pay the accrued salaries of the staff of the experts, and these orders are the subject of two of the instant appeals. (Nos. 79-1042 and 79-1101).

placing a desegregation plan in effect immediately. This injunction was made final two years later in 1973, KBE and SBE being held jointly liable with respect to the unconstitutional racial segregation found to have existed in the school system, and both decrees have been affirmed on appeal.

In the fall of 1979, the report and recommendations of the experts having been filed, plaintiffs moved the district court in behalf of minority students to order implementation of the recommendations, which the court did after a hearing in November. The district court granted no relief with respect to some racial imbalance found by the report to exist in some schools and took no action with respect to the racial composition of the teachers, administrators, and supporting staff, but ordered to be implemented all of the recommendations as to ancillary programs, both cognitive and behavioral. This order is the subject of another appeal by SBE that is before this panel (No. 79-1723) and is the subject of an appeal by KBE (No. 80-1006) heard by another panel (Engel, Brown and Peck, JJ.) ¹ Also, in the fall of 1979, when it appeared that KBE would not be able to obtain continued financing for 1979-1980 from the federal government for certain of its ongoing ancillary cognitive and behavioral programs for minority students under the Emergency School Aid Act, 20 U.S.C. §§ 1601 et seq., (referred to in the record and herein as ESAA), it moved the district court to require SBE to make up this deficit or to reimburse it. The district court, at the conclusion of the aforementioned November, 1979, hearing, likewise ordered SBE to pay such amount to KBE, and this order is also a subject of SBE's appeal in No. 79-1723 before this panel.

Although we have just set out a brief overview of this litigation in order to indicate in a general way the issues on the appeals before us, it is necessary, in dealing with the issues presented, to develop the history of this litigation in considerable detail.

I

Prior to 1971, there had been considerable activity by citizens of Kalamazoo, particularly the Citizens Racial Balance Committee, to desegregate the Kalamazoo public schools. In the spring of that year, using information as to pupil identity, race, location, and grade supplied to it by KBE, the Illinois Institute of Technology, by employing computers, devised a desegregation plan. This plan was adopted by KBE on May 7, 1971. However, shortly thereafter, two of the members of KBE, as a result of an intervening election, were replaced, and in July, 1971, the action of KBE approving the plan was rescinded by a divided vote, and the former school attendance boundaries were reestablished but with voluntary open enrollment. This action was then filed on August 12, 1971.

On August 12, 1971, the district court entered a temporary restraining order, restraining KBE from implementing the voluntary open enrollment plan. Then, on August 20, 1971, the district court, after a hearing, issued a temporary injunction, placing the plan that had been adopted by KBE on May 7, 1971 immediately in effect, and the plan was thereby made applicable to the 1971-72 school year. 346 F.Supp. 766 (W.D.Mich.1971). In so doing the district court found that, according to the 1970 school census, the school system was 17.6% This court affirmed the granting of the temporary injunction on August 30, 1971, 448 F.2d 635 (6th Cir. 1971), holding that the district court's issuance of the temporary injunction was not contrary to a rule of equity or an improvident exercise of judicial discretion, but it expressly refrained from approving all of the language and holdings of the district judge.

black, that five of the elementary schools were majority black, that the other schools in the system, twenty-four, were majority white, and that the system was unconstitutionally segregated. Under this plan, some of the elementary schools (grades K-6) became schools with grades K-3 and others became schools with grades K, 4-6. The plan called for considerable busing.

In 1973, the district court held a plenary hearing, and determined again that the Kalamazoo schools had been racially segregated in 1971, that the segregation was de jure since it resulted from policies and practices carried out by KBE to accomplish segregation or with knowledge that such would bring about segregation, and therefore, on October 4, 1973, it reaffirmed the liability of KBE for the segregation. 368 F.Supp. 143 (W.D.Mich.1973). The district court also held that SBE was liable for such segregation on two grounds: (1) that segregated schools had resulted from segregated neighborhoods which were in part a result of the enforcement of racial covenants by Michigan courts and (2) that under the Michigan constitution and statutes, SBE had the authority and the duty to supervise and regulate local school boards and activities, including the duty to prevent unconstitutional segregation, and SBE had failed to exercise this authority and carry out this duty.

In its order of October 4, 1973, the district court made permanent the existing temporary injunction by which the plan that had been adopted by KBE on May 7, 1971 had been placed in effect on August 20, 1971. The court retained jurisdiction to supervise implementation of the plan, and the order provided that any party moving for alteration or amendment of the plan would have the burden of justifying the changes. SBE was required to render assistance to KBE in the execution of the court's order. KBE was ordered to apply to the federal government for such financial assistance as might be available to aid KBE in executing the order. SBE was ordered to apply to the Michigan legislature for financial assistance for KBE and to aid KBE in making its federal applications and to join with KBE in its applications to the Michigan legislature for aid.

During the course of the proceedings leading up to the plenary hearing, counsel for KBE, on August 2, 1972, moved the district judge to recuse himself. The affidavit in support of the motion charged bias on the part of the judge in favor of plaintiffs, its counsel, and their position and against KBE, its counsel and its position. More particularly, the affidavit charged, inter alia, that the judge had prejudged the issues and had exhibited a difference in his treatment of counsel and witnesses on plaintiffs' side and on KBE's side. This motion was denied, and the denial was a subject of the appeal of the court's entry of the permanent injunction.

On the appeal by KBE and SBE of the granting of the permanent injunction, this court, by a divided panel, affirmed. 508 F.2d 178 (6th Cir. 1974), cert. denied 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975). The majority held that the court had applied a correct legal standard for determining liability, that is, that liability for segregation in schools is established if it is shown that there was action or inaction by the public officials, that there was a segregative purpose, and that such results in increased or continued segregation in the public schools. The majority also found that the factual findings of the district judge were adequately supported by the record. The court held that SBE was properly found to be liable...