Armstrong v. Board of School Directors of City of Milwaukee, 79-1655

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation616 F.2d 305
Docket NumberNo. 79-1655,79-1655
PartiesKevin ARMSTRONG et al., Plaintiffs-Appellees, and Jeffrey Jackson et al., Intervening Plaintiffs-Appellants, v. BOARD OF SCHOOL DIRECTORS OF the CITY OF MILWAUKEE et al., Defendants- Appellees, and Milwaukee Teachers' Education Association, Intervening Defendant.
Decision Date28 April 1980

Thomas I. Atkins, Atkins & Brown, Boston, Mass., for intervening plaintiffs-appellants.

Lloyd A. Barbee, Milwaukee, Wis., for plaintiffs-appellees.

L. C. Hammond, Quarles & Brady, Milwaukee, Wis., for defendants-appellees.

Before SPRECHER and CUDAHY, Circuit Judges, and DUMBAULD, Senior District Judge. *

SPRECHER, Circuit Judge.

The issue in this appeal is whether the district court properly approved a settlement agreement terminating the Milwaukee public school desegregation class action after fifteen years of litigation. The intervening class members, the appellants here, contend that the district court failed to apply the correct standard in its evaluation of the settlement agreement. We conclude that the district court acted properly and affirm.


The original complaint in this litigation was filed in 1965, pursuant to 42 U.S.C. § 1983. An amended complaint was filed in 1968 alleging that the Milwaukee public school system was unlawfully segregated on the basis of race in violation of the Equal Protection Clause of the Fourteenth Amendment. The trial began in September 1973, and consumed thirty full days on the district court's calendar until its conclusion in January 1974. The parties produced approximately fifty witnesses and hundreds of exhibits during the trial and submitted proposed findings of fact and post-trial briefs after its conclusion. The district court then took the case under advisement.

In January 1976, the district court issued its decision and order, finding that the defendants had knowingly and intentionally carried out a systematic program of faculty and student segregation and had created and maintained a dual school system. Amos v. Board of School Directors of the City of Milwaukee, 408 F.Supp. 765, 821 (E.D.Wis.1976). In its decision and order, the district court also certified the litigation as a class action pursuant to Fed.R.Civ.P. 23(b)(2), 1 and appointed counsel for the class. 408 F.Supp. at 771-76. 2 An immediate appeal from the district court's finding of a violation was brought to this court pursuant to 28 U.S.C. § 1292(b).

In addition to finding a violation of the Equal Protection Clause, the district court, in its initial decision, also permanently enjoined the defendants from any future acts of racial discrimination and appointed a special master to assist in the formulation of an appropriate remedy. While defendants' appeal was pending, they petitioned the district court to stay enforcement of the permanent injunction and to revoke the appointment of the special master until final resolution of the appeal by this court. In a decision issued in May 1976, the district court declined to stay the injunction, revoke the appointment of the special master or suspend his activities. Armstrong v. O'Connell, 416 F.Supp. 1325, 1344 (E.D.Wis.1976). 3 Soon thereafter, the district court ordered the defendants to begin desegregation of students and faculty pursuant to an interim plan. Armstrong v. O'Connell, 416 F.Supp. 1344 & 1347 (E.D.Wis.1976). The defendants complied with the district court's orders and exceeded the goals established by the court.

This court issued its decision affirming the district court's initial finding of a constitutional violation in July 1976. Armstrong v. Brennan, 539 F.2d 625, 637 (7th Cir. 1976). Defendants filed a petition for certiorari in the Supreme Court in December 1976, after unsuccessfully petitioning this court for rehearing and rehearing en banc. While the certiorari petition was pending in the Supreme Court, the district court held further hearings with respect to the adoption of a final desegregation plan for the Milwaukee public schools. In March 1977, the district court issued its final desegregation order, which encompassed both faculty and student body desegregation. Armstrong v. O'Connell, 427 F.Supp. 1377 (E.D.Wis.1977). The defendants appealed from this order, but also began to act in compliance with it.

The Supreme Court granted defendants' petition for certiorari in June 1977, and, in a per curiam order, vacated this court's judgment and remanded the case for reconsideration in light of Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) and Dayton Board of Education v. Brinkman, 433 U.S. 406 (1977). Brennan v. Armstrong, 433 U.S. 672, 97 S.Ct. 2907, 53 L.Ed.2d 1044 (1977). On remand from the Supreme Court, this court vacated and remanded both the district court's original liability decision and its final desegregation order. 566 F.2d 1175 (7th Cir. 1977).

On remand, the district court allowed the parties to supplement the record with respect to the issue of segregative intent. This supplementation amounted to a hearing consuming twenty-seven days, during which sixty-five witnesses were called and almost 1,000 new exhibits were admitted; the record doubled in size as a result. On the basis of the expanded record, the district court found that the defendants had discriminated against the plaintiffs with segregative intent in violation of the Equal Protection Clause. Armstrong v. O'Connell, 451 F.Supp. 817, 820 (E.D.Wis.1978). Another evidentiary hearing, this one consuming eight days, was then conducted with respect to the present effects of the past segregative acts of the defendants. The district court found that the defendants' violations had had a "pervasive, systemwide impact (requiring) . . . a systemwide remedy encompassing both student population and teacher assignment . . . ." Armstrong v. O'Connell, 463 F.Supp. 1295, 1309 (E.D.Wis.1979). The court did not order any particular remedial action at that time; it instead ordered the parties to submit proposed desegregation plans. 4 Id. at 1310.

On March 1, 1977, the plaintiffs and defendants submitted for the court's approval a proposed settlement agreement; the agreement was the product of nine months of negotiations between counsel for both sides. This settlement agreement, which is the subject of this appeal, 5 deals only with desegregation of the student population. A separate faculty desegregation proposal was submitted but not made part of the agreement because an intervening party, the Milwaukee Teachers' Education Association, would not approve its terms. The court held an initial hearing on March 5 1979, to determine whether the settlement agreement was within the range of possible approval; finding that it was, the court approved a class notice which was sent to all class members on March 14, 1979, and published in five Milwaukee newspapers. 6 The notice informed all class members of their right to appear at the scheduled fairness hearing and of the procedures to be followed in making oral or written objections to the proposal.

At the fairness hearing, which was conducted on March 26, 27 and 29, 1979, the district court heard statements from all counsel, received a number of exhibits, and heard testimony from several witnesses and from forty-five class members responding to the notice, most of whom opposed the settlement. On the basis of this information, the district court, after a careful analysis of the factors to be considered in evaluating a class action settlement, entered its order approving the settlement agreement. Armstrong v. Board of School Directors, 471 F.Supp. 800, 813 (E.D.Wis.1979). The intervening class members appeal from this order. 7

On June 11, 1979, the intervening plaintiffs filed a motion in the district court for leave to intervene for the purpose of seeking an order vacating the settlement approval or, alternatively, for the purpose of appealing from that approval. The district court, in an order issued June 20, 1979, denied the motion on the ground that the notice of appeal contemporaneously filed by the intervening plaintiffs had transferred all jurisdiction over the case to this court, thus depriving the district court of jurisdiction to grant the motion. The district court indicated, however, that if it had possessed jurisdiction, it would have permitted intervention for purposes of appeal but would not have vacated the settlement. The intervening class members also appeal from the district court's denial of their motions to intervene.


The settlement agreement is published as Appendix A to the district court's decision, 471 F.Supp. 800, 813-20; it is therefore unnecessary to discuss its terms in detail in this opinion. We will, however, briefly describe its most important provisions insofar as they are relevant to our review of the district court's order.

The settlement agreement begins with a recital of the protracted history of the Milwaukee school desegregation litigation and a brief explanation of the reasons underlying plaintiffs' and defendants' decision to terminate the dispute through settlement. The first substantive provision of the agreement permanently enjoins the defendants, their successors, officers and agents from discriminating on the basis of race in the operation of the Milwaukee public schools. 471 F.Supp. at 815. The agreement contains one other injunctive provision, which requires that decisions respecting school openings and closings and the location of specialty programs not be made in a racially discriminatory manner. 471 F.Supp. at 818.

In addition to the injunctive provisions, the agreement places affirmative obligations upon the defendants in terms of active desegregation of the Milwaukee public schools. Every student in the system is given the right to attend a...

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