Bell v. Board of Educ., Akron Public Schools

• Decision Date: 08 July 1982
• Docket Number: 80-3507,Nos. 80-3390,s. 80-3390
• Citation: 683 F.2d 963
• Parties: Doris BELL, Maynard Bell, Ann H. Benoit, Cecil R. Benoit, Paulette McGregor, and Jacques McGregor, Plaintiffs-Appellants, v. BOARD OF EDUCATION, AKRON PUBLIC SCHOOLS; Conrad C. Ott, Superintendent, Akron Public Schools; City of Akron; Mayor John S. Ballard; Akron Metropolitan Housing Authority; David Levey, Director, Akron Metropolitan Housing Authority; and Paul J. Everson, President, Ohio Real Estate Commission, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 963

683 F.2d 963

Doris BELL, Maynard Bell, Ann H. Benoit, Cecil R. Benoit, Paulette McGregor, and Jacques McGregor, Plaintiffs-Appellants, v. BOARD OF EDUCATION, AKRON PUBLIC SCHOOLS; Conrad C. Ott, Superintendent, Akron Public Schools; City of Akron; Mayor

John S. Ballard; Akron Metropolitan Housing Authority; David

Levey, Director, Akron Metropolitan Housing Authority; and

Paul J. Everson, President, Ohio Real Estate Commission,

Defendants-Appellees.

Nos. 80-3390, 80-3507.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 6, 1981.

Decided July 8, 1982.

Robert Allen Sedler, Detroit, Mich., Daniel T. Wilson, Anna Maria Barnum, Randall L. Johnson, Akron, Ohio, for plaintiffs-appellants.

John M. Glenn, Buckingham, Doolittle & Burroughs, Edward Riegler, Eugene Oestreicher, Akron, Ohio, B. Douglas Anderson, Asst. Atty. Gen. of Ohio, Columbus, Ohio, for defendants-appellees.

Before EDWARDS, Chief Judge, and MERRITT and BROWN, Circuit Judges.

MERRITT, Circuit Judge.

In this school desegregation case from Akron, Ohio, plaintiffs-appellants sought to prove in the court below, and they argue on appeal, three basic liability claims against the school board:

1. Pre-1965 School Board Conduct.-"(A)s a direct result of intentionally segregative acts and omissions by 1965, the Akron school board was maintaining an enclave of racially identifiable black schools in the middle-western portion of Akron." Brief for plaintiffs-appellants, Docket No. 80-3507, p. 17. Plaintiffs describe the "segregative acts" in question as follows: "In the period from 1954-1965, the Akron school board made a number of attendance zone changes and established a number of optional zones that removed white students in substantial numbers from South High School, West and Thornton Junior High Schools, and Crouse and Schumacher Elementary Schools." Id. at 18. "Optional zones" in Akron permit students living within the zone to choose between two schools in the area.

2. Post-1965 School Board Conduct.-"Because a dual school system for constitutional purposes was established by the intentionally segregative acts and omissions of the Akron school board no later than 1965, the Akron school board was under a continuing and affirmative duty both to dismantle the dual school system, and until that duty was satisfied, to prevent other school in the system from becoming racially identifiable. For this reason, proof of segregative intent is not necessary with respect to the post-1965 actions of the board .... Far from satisfying its constitutional duty to dismantle the school system, in the period after 1965, the Akron school board engaged in intentional acts and omissions that perpetuated and increased the racially segregative character of the school system." Id. at 47-48. The plaintiffs argue that "the measure of the post-1965 conduct of the Akron school board must be segregative effect rather than segregative intent." Id. at 48.

3. School Board Responsibility to Dismantle Segregative Effect of Housing Discrimination By Other Governmental Agencies.-"In this case, the Akron school authorities contended ... that the condition of school segregation in the system and the existence of a large number of racially identifiable schools was not due to intentional racially discriminatory and segregative actions on their part but instead was due to patterns of residential racial segregation, which, interacting with geographic attendance zoning as the primary method of school assignment, produced racially segregated schools. Count II of the complaint proceeds on the assumption (which is disputed in Count I of the complaint) that the school authorities are correct in this contention. The theory of Count II of the complaint is that if the intentional racially discriminatory actions of governmental agencies at all levels (federal, state and local) contributed to those patterns of residential racial segregation, the resulting school segregation is de jure and subject to redress." Appellant's Brief, Docket No. 80-3390, p. 5.

In 1968 different plaintiffs in a class action sponsored by the National Association for the Advancement of Colored People litigated and lost issues similar to those described in the first paragraph above. Arnold v. Ott, No. G65-707 (N.D.Ohio, October 16, 1968). The 1968 plaintiffs dismissed their appeal in this Court, No. 19258 (6th Cir. March 10, 1969). The District Court in 1968 decided the case against plaintiffs and the class consisting of black students in the Akron schools. The District Court found that the defendant school board had not fixed school zone boundaries or made zone changes or created optional zones with segregative intent. On the issue respecting optional zones allegedly created with a segregative intent-the same basic claim as in the instant case-the 1968 decision concluded that plaintiffs had failed to prove the following claims:

"In answer to interrogatories seeking to elicit specific answers of board discriminatory policy, plaintiffs responded: "The Board of Education employs optional zones which give pupils residing in a certain area the choice of attending one of two schools. When these optional zones are analyzed, it appears that those students residing in white residential areas have the option of attending either a racially imbalanced school or a white school.'

"Plaintiffs' exhibit GG-2 details what purports to be over a dozen such optional zones. The 'options' presented are numerous. For example, all white optional zones have the choice of attending either of two all-white school (Windemere-Ritzman); predominantly Negro optional zones have the choice of attending predominantly Negro or predominantly white schools (Miller-Leggett)."

Uncertain of the precise effect to be given the 1968 decision, the District Court in the instant case again heard the case on the merits and decided that the defendant board had not drawn school zone boundaries or created optional zones with segregative intent. On Count II, the housing count, the court declined to rule on the alleged discriminatory housing practices of the federal and state governments because they were not parties and ruled on the merits that the other governmental agencies were not guilty of conduct undertaken with segregative intent.

I. THE EFFECT OF THE 1968 AKRON DECISION

The initial question presented on appeal concerns the effect of the 1968 decision. We conclude that the issues presented on appeal in the instant case respecting the actions of the board prior to 1965 are so similar to the issues adjudicated in the 1968 action as to preclude reconsideration here. Although the 1968 court did not formally certify the plaintiff class by separate order prior to its decision on the merits, the record reveals no objection to the class, and the court in the first and second paragraphs of its 1968 opinion refers with approval to the action as one on behalf of "Negro students as a class."

Our decision on the effect of the 1968 Akron decision is governed by Bronson v. Board of Education, 525 F.2d 344 (6th Cir. 1975), a similar school desegregation class action case. The Court weighed traditional common law and due process principles favoring the finality of judgments in cases previously decided against principles favoring the vindication of constitutional rights and the correction of errors of constitutional magnitude. The Court, in an opinion by Judge Lively, concurred in by Chief Judge Phillips, held that a 1965 decision in the Cincinnati school desegregation case precluded the reconsideration of the specific issues considered and decided earlier. The decision was based on a finding that the class was adequately represented in the prior case and that there has been no significant change in the law. The Court concluded that "a public body should not be required to defend repeatedly against the same charge of improper conduct if it has been vindicated in an action brought by a person or group who validly and fairly represent those whose rights are alleged to have been infringed." Id. at 349. The Court said that "these issues have been decided and under the issue preclusion application of collateral estoppel may not be reopened." Ibid.

Judge Lively's opinion considers two factors in addition to the similarity of issues in the two cases. The first is the adequacy of representation of the class members in the earlier action and the relationship between the named plaintiffs and class members in the earlier action and in the later action. "Though the plaintiffs in the instant action are not the same persons as those who instituted" the earlier case, the Court observed, "that action was brought to vindicate the rights of all minority school children and parents affected by the actions and policies of the Cincinnati board." The Court found that "there is a strong community interest between" the two sets of plaintiffs and class members because "both actions sought relief on behalf of the same group of black citizens." 525 F.2d at 349.

The second factor considered in Judge Lively's opinion was whether "intervening decisions ... have changed the law sufficiently to render collateral estoppel inapplicable to the present case." Id. at 347-48. After reviewing developments in the law, the Court concluded that principles of liability in de facto school desegregation cases had not changed significantly from 1965 when the first case was decided to 1975 when Judge Lively's opinion was written.

We note that were we to apply a contrary principle rejecting collateral estoppel in school desegregation cases, we would open up for relitigation all school desegregation judgments in de facto school cases. A plaintiff who disagrees with a prior final determination of liability-for example in Columbus or Dayton-would be entitled to relitigate the finding of liability. Rights and duties in desegregation cases previously litigated and established would never become final. They...