Armstrong v. O'CONNELL
| Decision Date | 01 June 1978 |
| Docket Number | Civ. A. No. 65-C-173. |
| Citation | 451 F. Supp. 817 |
| Parties | Kevin ARMSTRONG and Kraig Armstrong, minors, by Roosevelt Savage and Rochelle Savage, their parents and next friends, Mary Lou Hicks and Presten Hicks, minors, by Paul L. Hicks and Rose B. Hicks, their parents and next friends, Jean Robinson, by Alonzo Robinson and Theresa Robinson, their parents and next friends, and Andrew Smith, Grantley H. Smith, and Kermit Smith, minors, by Kenneth L. Smith and Phyllis G. Smith, their parents and next friends, Plaintiffs, v. Donald J. O'CONNELL, Thomas Brennan, Anthony S. Busalacchi, Margaret Dinges, Gerald P. Farley, Stephen Jesmok, Jr., Marian McEvilly, Maurice J. McSweeney, Edward S. Michalski, Clara A. New, Evelyn T. Pfeiffer, Lorraine M. Radtke, Lois Riley, Doris Stacy, and Leon W. Todd, Jr., Members of the Board of School Directors of the City of Milwaukee, Lee R. McMurrin, Superintendent of Schools of the City of Milwaukee, and Thomas A. Linton, Secretary-Business Manager of the Board of School Directors of the City of Milwaukee, Defendants, Milwaukee Teachers' Education Association, Undesignated Intervenor. |
| Court | U.S. District Court — Eastern District of Wisconsin |
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Lloyd A. Barbee, Milwaukee, Wis., for named plaintiffs.
Irvin B. Charne, Milwaukee, Wis., for the absent members of the plaintiff classes.
L. C. Hammond, Jr., Patrick W. Schmidt, and Ronald E. Klipsch, Milwaukee, Wis., for defendants.
Curry First, Milwaukee, Wis., for Milwaukee Teachers' Education Association, undesignated intervenor.
TABLE OF CONTENTS
Page
I. INTRODUCTION ............................................................ 820
II. THE APPLICABLE LAW ...................................................... 822
III. THREE GENERAL MATTERS PERTAINING TO INTENT .............................. 826
A. The Previous Direct Evidence of Discriminatory Intent ................ 826
B. The Absence of Any Significantly Integrative Actions ................. 827
C. The "Neighborhood" School Policy ..................................... 829
IV. FACULTY ASSIGNMENT ...................................................... 830
A. The Statistics Reflecting Teacher Segregation ........................ 830
B. Teachers' Placement Preference, the Teacher Shortage, and the
Collective Bargaining Agreement Seniority Provisions ................. 832
C. The Defendants' Responsibility for the Segregation of Teachers ....... 835
D. Other Relevant Findings .............................................. 836
V. INTACT BUSSING .......................................................... 836
A. Definitions .......................................................... 836
B. The Development of MPS Bussing Practices ............................. 838
C. The Defendants' Response to Overcrowding in the Schools .............. 844
D. The Defendants' Recess Practices ..................................... 845
VI. STUDENT TRANSFERS ....................................................... 852
VII. BOUNDARY CHANGES, SITE SELECTION, AND SCHOOL CONSTRUCTION ............... 857
A. An Overview of MPS Boundary Changes, Site Selection, and School
Construction ......................................................... 857
B. Specific Examples of Discrimination in MPS Boundary Changes, Site
Selection, and School Construction ................................... 861
C. Conclusion ........................................................... 866
VIII. CONCLUSION .............................................................. 866
DECISION AND ORDER (Including Findings of Fact and Conclusions of Law)
The Court hereby finds, for the reasons stated below, that the defendants discriminated against the plaintiffs with segregative intent, as further specified below, and in so doing violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and the Civil Rights Act of 1871, 42 U.S.C. § 1983.
On January 19, 1976, the Court concluded that Milwaukee public "school authorities engaged in practices with the intent and for the purpose of creating and maintaining a segregated school system, and that such practices had the effect of causing current conditions of racial imbalance in the Milwaukee public schools." Amos v. Board of School Directors of the City of Milwaukee, 408 F.Supp. 765, 818 (E.D.Wis.1976). This holding of liability was affirmed by the court of appeals on July 23, 1976. See Armstrong v. Brennan, 539 F.2d 625 (7th Cir. 1976). On June 28, 1977, however, the Supreme Court vacated the judgment of the court of appeals 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, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977). See Brennan v. Armstrong, 433 U.S. 672, 97 S.Ct. 2907, 53 L.Ed.2d 1044 (1977). The court of appeals subsequently remanded the case to this court for proceedings consistent with the Supreme Court's mandate. Armstrong v. Brennan, 566 F.2d 1175. (7th Cir. 1977).
After consulting with the parties, the Court decided that the first issue to be considered on remand was the question of segregative intent. The plaintiffs and the defendants were permitted to supplement the original record with respect to this issue, and, as a result, an evidentiary hearing consuming 27 days of the court's calendar was held. As a result of the supplemental hearing, the record on the issue of segregative intent more than doubled. Approximately 65 witnesses testified at that hearing and almost 1,000 new exhibits were admitted in evidence. These included a complete set of the verbatim minutes of the Milwaukee School Board and its committees for the last twenty-five years, consisting of more than 490 bound volumes. Some of this new evidence dealt with matters not considered at the original trial. Other evidence presented at the supplemental hearing refined, and explained in greater detail, matters covered by the Court's January 19, 1976, decision. Still other evidence contradicted some of the findings contained in the Court's original decision.
At the conclusion of the evidentiary hearing held pursuant to the remand, the Court requested the parties to submit proposed findings of fact and conclusions of law on the issue of the presence or absence of discriminatory intent in the defendants' actions, and the Court informed the parties that those specific findings would be adopted which are supported by the evidence even though the specific findings do not support the general findings and conclusions reached by the Court. Thus, both specific findings relating to the presence or absence of intent and the general conclusions as to intent to be drawn from those findings are presented. This procedure is pointed out because in the appeal from the original decision finding the defendants liable for discrimination against the plaintiffs, the Seventh Circuit noted that there existed "an unexplained hiatus between specific findings of fact and conclusory findings of segregative intent." Armstrong v. Brennan, 539 F.2d at 636. The Seventh Circuit was rightfully concerned with a seeming contradiction between this Court's earlier conclusion that the defendants generally followed their policy, known as the "neighborhood" school policy, and the Court's conclusion that the defendants acted with discriminatory intent.
However, the record in this court contains numerous contradictions in the evidence. These contradictions, which are reflected in the specific findings of fact below, are caused by the fact that the defendants did not act with malice or a deliberate policy of overt separation of the races from all contact with each other in the school system. In fact, over the 25 years covered by these findings, black teachers have taught white children in white schools and white teachers have taught black children in black schools; black children have attended white schools and white children have attended black schools; white students have been intact bussed separately and together with black students; after the open transfer policy was adopted, black students have been free to transfer to any school in the system; and a number of members of the board of directors of the Milwaukee Public Schools (hereinafter "MPS") and many citizens of the City of Milwaukee over the years have been staunch advocates of increased integration within the system.
Therefore, it is not an easily discernible picture of relentless discriminatory intent that emerges from the evidence of the defendants' words and conduct over the years, and there are contradictions in the evidence. While this Court is convinced beyond any doubt that the evidence compels the finding that the defendants acted with discriminatory or segregative intent, this Court, at the risk of instigating further hiatuses, believes that its decision should also contain those specific findings of fact which indicate that the defendants were not always motivated by a discriminatory intent, and such findings are included within each specific area of findings below.
The findings and conclusions made in this decision are supplemental to those contained in the Court's original decision and generally are in harmony with those findings, but where they are not, it is specifically noted otherwise. In case of a conflict, however, between the findings and conclusions of the first decision, and the findings and conclusions of this decision, the later ones are intended as controlling. The terms and symbols used in this decision bear the same...
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Armstrong v. O'CONNELL, Civ. A. No. 65-C-173.
...of the Fourteenth Amendment to the United States Constitution and the Civil Rights Act of 1871, 42 U.S.C. § 1983." Armstrong v. O'Connell, 451 F.Supp. 817, 820 (E.D.Wis.1978). The Court also "F-89. The objective evidence previously described in detail demonstrates that defendants' decisions......
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