Board of School Directors v. State of Wis.

• Decision Date: 29 April 1985
• Docket Number: No. 84-C-877.,84-C-877.
• Citation: 649 F. Supp. 82
• Parties: BOARD OF SCHOOL DIRECTORS OF the CITY OF MILWAUKEE; Kristine D. Leopold, as a Member of the Board of School Directors of the City of Milwaukee and as parent and next friend of Cassandra R. Leopold, Christopher Leopold; Joyce P. Mallory, as a Member of the Board of School Directors of the City of Milwaukee and as parent and next friend of Damien Warren Mallory, Plaintiffs, v. STATE OF WISCONSIN; Anthony S. Earl, in his official capacity as Governor of the State of Wisconsin; Herbert S. Grover, in his official capacity as State Superintendent of Public Instruction; Agency School Committee of CESA 19; Virginia Stolhand, in her official capacity as President of the Agency School Committee of CESA 19; Cooperative Educational Service Agency 19; William D. Bergum, in his official capacity as Executive Administrator of CESA 19; Paule Kolff, in her official capacity as chairperson of the CESA 19 Board of Control; Board of Education of Brown Deer School District; Board of Education of Cudahy School District; Board of Education of Elmbrook School District; Board of Education of Fox Point Joint No. 2 School District; Board of Education of Fox Point Joint No. 8 School District; Board of Education of Franklin School District; Board of Education of Germantown School District; Board of Education of Glendale Joint No. 1 School District; Board of Education of Greendale School District; Board of Education of Greenfield School District; Board of Education of Hamilton School District; Board of Education of Menomonee Falls School District; Board of Education of Mequon-Thiensville School District; Board of Education of Muskego-Norway School District; Board of Education of New Berlin School District; Board of Education of Nicolet Union High School District; Board of Education of Oak Creek-Franklin School District; Board of Education of St. Francis School District; Board of Education of Shorewood School District; Board of Education of South Milwaukee School District; Board of Education of Wauwatosa School District; Board of Education of West Allis School District; Board of Education of Whitefish Bay School District; Board of Education of Whitnall School District, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

649 F. Supp. 82

BOARD OF SCHOOL DIRECTORS OF the CITY OF MILWAUKEE; Kristine D. Leopold, as a Member of the Board of School Directors of the City of Milwaukee and as parent and next friend of Cassandra R. Leopold, Christopher Leopold; Joyce P. Mallory, as a Member of the Board of School Directors of the City of Milwaukee and as parent and next friend of Damien Warren Mallory, Plaintiffs, v. STATE OF WISCONSIN; Anthony S. Earl, in his official capacity as Governor of the State of Wisconsin; Herbert S. Grover, in his official capacity as State Superintendent of Public Instruction; Agency School Committee of CESA 19; Virginia Stolhand, in her official capacity as President of the Agency School Committee of CESA 19; Cooperative Educational Service Agency 19; William D. Bergum, in his official capacity as Executive Administrator of CESA 19; Paule Kolff, in her official capacity as chairperson of the CESA 19 Board of Control; Board of Education of Brown Deer School District; Board of Education of Cudahy School District; Board of Education of Elmbrook School District; Board of Education of Fox Point Joint No. 2 School District; Board of Education of Fox Point Joint No. 8 School District; Board of Education of Franklin School District; Board of Education of Germantown School District; Board of Education of Glendale Joint No. 1 School District; Board of Education of Greendale School District; Board of Education of Greenfield School District; Board of Education of Hamilton School District; Board of Education of Menomonee Falls School District; Board of Education of Mequon-Thiensville School District; Board of Education of Muskego-Norway School District; Board of Education of New Berlin School District; Board of Education of Nicolet Union High School District; Board of Education of Oak Creek-Franklin School District; Board of Education of St. Francis School District; Board of Education of Shorewood School District; Board of Education of South Milwaukee School District; Board of Education of Wauwatosa School District; Board of Education of West Allis School District; Board of Education of Whitefish Bay School District; Board of Education of Whitnall School District, Defendants.

No. 84-C-877.

United States District Court, E.D. Wisconsin.

April 29, 1985.

COPYRIGHT MATERIAL OMITTED

Irvin B. Charne, Charne, Glassner, Tehan, Clancy & Taitelman, S.C., Milwaukee, Wis., David S. Tatel, Allen R. Snyder, Hogan & Hartson, Washington, D.C., for plaintiffs.

Edward S. Marion, Madison, Wis., Thomas J. Arenz, Charles H. Bohl, Frisch, Dudek and Slattery, Ltd., Mark E. Vetter, Harney B. Stover, Jr., Davis & Kuelthau, S.C., Thomas L. Shriner, Jr., Foley & Lardner, Timothy E. Hawks, Shneidman, Myers, Dowling, Blumenfield, William J. Mulligan, Mulcahy & Wherry, S.C., Michael J. Spector, Ralph A. Weber, Quarles & Brady, Warren L. Kreunen, Timothy G. Dugan, William C. Pickering, von Briesen & Redmond, S.C., Milwaukee, Wis., Juan Colas, Robert J. Mussallem, Robert E. Lindquist, Madison, Wis., Lloyd A. Barbee, William H. Lynch, Curry First, Perry, First, Reiher, Lerner & Quindel, S.C., Milwaukee, Wis., for defendants.

DECISION AND ORDER

CURRAN, District Judge.

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today, it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954).

Thirty years after the landmark decision in Brown v. Board of Education, the Board of School Directors of the City of Milwaukee filed this school desegregation lawsuit seeking injunctive and declaratory relief, including an interdistrict remedy. The plaintiffs allege that the defendants created and maintained a metropolitan-wide racially dual structure of education, thereby giving rise to a cause of action under: the United States Constitution, article VI, clause 2¹ and the Thirteenth² and Fourteenth³ Amendments; 42 U.S.C. §§ 1981,⁴ 1983,⁵ 1985,⁶ 1988⁷ & 2000d⁸; the Wisconsin Constitution, article I, section 1⁹ and article X, section 3¹⁰; and sections 116.51(2)¹¹ and 118.13¹² of the Wisconsin Statutes. Jurisdiction over the parties and subject matter of their claims is predicated upon 28 U.S.C. §§ 1331(a), 1343(3) & (4), 2201, 2202, and pendent jurisdiction with respect to the state law causes of action.

On July 26, 1984, the plaintiffs filed an Amended Complaint which added as plaintiffs two members of the Board who are also suing as parents and next friends of three minor plaintiffs. In the Preliminary Statement of their Amended Complaint the plaintiffs set forth the bases and objectives of their lawsuit:

1. This complaint requests declaratory and injunctive relief to redress the deprivation under color of state law of the rights, privileges, and immunities secured by the Constitutions and laws of the United States and the State of Wisconsin to the plaintiffs and the schoolchildren of the City of Milwaukee. It seeks to remedy the illegal racial segregation and the resulting inequality of educational opportunity and metropolitan-wide racially dual structure of education created and maintained by defendants in the Milwaukee metropolitan area.

2. As set forth in detail below, defendants and their predecessors have cooperated for many years to isolate and confine Milwaukee area black students within the City of Milwaukee and to foster and maintain segregation and inequality of educational opportunity in the metropolitan area. In conjunction with governmental actions which have created and maintained residential segregation in the Milwaukee area, this conduct has resulted in the creation and maintenance of a racially dual metropolitan-wide structure of public education in which black students are confined almost exclusively to the City of Milwaukee. Over 95% of the 44,000 black students in the Milwaukee metropolitan area go to school in Milwaukee. Despite significant desegregation efforts in the city since this Court's 1976 order, the Milwaukee public schools are almost 50% black, with 18 schools over 80% black. By comparison, the suburban school districts around Milwaukee are over 96% white, and all but two are less than 5% black.

3. Residential statistics reflect similar segregation in the Milwaukee area. Over 97% of the area's 150,000 black residents live in the city. Although the City of Milwaukee is over 23% black, the surrounding suburbs are less than 0.05% black. Measured in terms of black concentration in central city areas, Milwaukee is the second most segregated large metropolitan area in the country. Such residential segregation, which has been fostered and maintained as described below by government agencies, including those under the control of the State of Wisconsin, has contributed significantly to the creation and maintenance of school segregation in the metropolitan area and has impeded court-ordered desegregation of the Milwaukee public schools.

4. For the reasons summarily set out above and detailed below, plaintiffs request that this Court declare the public schools in the Milwaukee metropolitan area to be unconstitutionally segregated, and order development and implementation of a desegregation plan for the Milwaukee metropolitan area that will eliminate the racial isolation, inequality of educational opportunity, and racially dual structure of education which continue to exist in the Milwaukee metropolitan area today.

Amended Complaint at ¶¶ 2-4.

In lieu of filing answers, the defendants have all brought motions to dismiss pursuant to Federal Rule of Civil Procedure 12. While each of the defendants reserves the right to defend individually, they have filed their motions to dismiss based on an alignment into three groups: (1) the twenty-four suburban boards of education (Suburban Defendants); (2) the State of Wisconsin, its Governor Anthony S. Earl, and its State Superintendent of Public Instruction, Herbert S. Grover (State Defendants); and (3) Agency School Committee of CESA 19 and its president Virginia Stolhand, Cooperative Educational Service Agency 19 and its executive administrator William D. Bergum and the chairperson of its board of control, Paule Kolff (Regional Defendants).

The twenty-four Suburban Defendants are moving to dismiss on the ground that the plaintiffs lack standing. See Federal Rule of Civil Procedure 12(b)(1). The State Defendants agree that the plaintiffs lack standing and also say that the court lacks jurisdiction over them and that the complaint fails to state a claim upon which relief can be granted. See Federal Rule of Civil Procedure 12(b)(1) & (6). The Regional Defendants are moving the court to dismiss the claims against them on the ground that they do not possess the capacity to be sued. See Federal Rules of Civil Procedure 9(a), 12, 17(b) and 25(d). These motions are fully briefed and ready for decision. The court will also consider the Supplementary Memorandum of Twenty-Four Suburban School Boards in Support of Motion to Dismiss Amended Complaint, as is permissible when ruling on a motion to dismiss. See Trecker v. Scag, 481 F.Supp. 861, 864 (E.D. Wis.1979).

Chief Justice Burger has summarized the law a district court must follow in considering a motion to dismiss:

When a

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