Board of Ed. of City School Dist. of City of Cincinnati v. Department of Health, Ed. and Welfare, Region 5, 75-1918

• Decision Date: 04 May 1976
• Docket Number: No. 75-1918,75-1918
• Citation: 532 F.2d 1070
• Parties: BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF CINCINNATI et al., Plaintiffs-Appellants, v. DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REGION 5, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1070

532 F.2d 1070

BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF CINCINNATI et al., Plaintiffs-Appellants, v. DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REGION 5, et al., Defendants-Appellees.

No. 75-1918.

United States Court of Appeals Sixth Circuit.

Argued Feb. 17, 1976.

Decided March 31, 1976.

Rehearing Denied May 4, 1976.

C. R. Beirne, Beirne & Wirthlin, John A. Lloyd, Jr., Frost & Jacobs, Cincinnati, Ohio, for plaintiffs-appellants.

William W. Milligan, U. S. Atty., Robert J. Kielty, Cincinnati, Ohio, Brian K. Landsberg, Marie E. Klimesz, Dept. of Justice, Washington, D. C., for defendants-appellees.

Before PHILLIPS, Chief Judge, and WEICK and LIVELY, Circuit Judges.

PER CURIAM.

This is an action for declaratory judgment and injunctive relief involving the denial of federal emergency school funds to The District Court denied the Board's motion for summary judgment and granted summary judgment in favor of HEW. The Board appeals. We reverse and remand.

the Cincinnati school system. The action was filed by the Cincinnati Board of Education against the Department of Health, Education and Welfare and the Commissioner and certain other personnel of that Department (HEW). The statute involved is the Emergency School Aid Act, 20 U.S.C. §§ 1601-19 (1974).

HEW denied the Board's application for school funds on four separate grounds. One of the grounds was alleged racial discrimination against children growing out of the Board's nonimplementation of a previously adopted desegregation plan. The District Court correctly held that this issue is "unresolvable on the present record." The summary judgment order was based on HEW's other three grounds for denial of funds: (1) That the Board's policy of teacher assignments did not comply with HEW requirements; (2) that "the Board had not given HEW assurance that it was not ineligible on the ground that it assigned students to ability groups etc. without educational justification" under the statute and regulations; and (3) that the Board had not provided HEW with assurance "that it was not ineligible on the ground that it was transferring property or services to any nonpublic school which is operated on a racially segregated basis" as specified in the statute and regulations.

Fed.R.Civ.P. 56(c) authorizes summary judgment only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967 (1944); Tee-Pak Inc. v. St. Regis Paper Co.,491 F.2d 1193, 1195 (6th Cir. 1974). In ruling on a motion for summary judgment, the court must construe evidence against the movant and in its most favorable light as to the party opposing the motion. Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962). As said by Judge Shackelford Miller, Jr., in S. J. Groves & Sons Co. v. Ohio Turnpike Commission, 315 F.2d 235, 237 (6th Cir. 1963), cert. denied, 375 U.S. 824, 84 S.Ct. 65, 11 L.Ed.2d 57 (1963): "This Court has on several cases expressed the view that a trial judge should be slow in disposing of a case of any complexity on motion for summary judgment."

We agree with the District Court that the issue of nonimplementation of a previously adopted desegregation plan involves genuine issues of material fact "unresolvable on the present record." We hold that the other three grounds advanced by HEW for denying the Board's application for funds also involve genuine issues of material fact. Therefore, the summary judgment must be reversed and the case remanded for appropriate evidentiary hearing and findings of fact.

There is now pending in the District Court a school desegregation case involving many of the issues of fact that are presented in the instant case. See, Bronson v. Board of Education, 525 F.2d 344 (6th Cir. 1975). The issues of fact involved in Bronson should be determined either before or contemporaneously with the determination of the issues of fact in the present case. To this end the District Court is directed, on remand, not to enter a final judgment in the present case until a final judgment has been entered in Bronson.

On June 21, 1974, the District Court entered an order and on June 27, 1974, a supplemental order in the present case directing the defendants to create and obligate a fund in the amount of $1,200,000 from fiscal year appropriations of the Emergency School Aid Act, "such moneys to be available in connection with the application in the event and to the extent that the plaintiff Board is found by this court or pursuant to its order to be entitled to such moneys." A copy of this order and supplemental order is made an appendix to this opinion.

On May 29, 1975, the District Court directed that its orders of June 21 and 27, 1974, continue in effect pending the appeal This court directs that the aforesaid orders of the District Court (appendix hereto) remain in force until final disposition of the present case at both the trial and appellate levels.

of this case unless...