Booker v. Special Sch. Dist. No. 1, Minneapolis, 4-71-Civ. 382.

• Decision Date: 22 May 1978
• Docket Number: No. 4-71-Civ. 382.,4-71-Civ. 382.
• Citation: 451 F. Supp. 659
• Parties: Jeanette BOOKER et al., Plaintiffs, v. SPECIAL SCHOOL DISTRICT NO. 1, MINNEAPOLIS, MINNESOTA, et al., Defendants and Third-Party Plaintiffs, v. The HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR the CITY OF MINNEAPOLIS and Carla Hills, Secretary of the United States Department of Housing and Urban Development, et al., Third-Party Defendants.
• Court: U.S. District Court — District of Minnesota

451 F. Supp. 659

Jeanette BOOKER et al., Plaintiffs, v. SPECIAL SCHOOL DISTRICT NO. 1, MINNEAPOLIS, MINNESOTA, et al., Defendants and Third-Party Plaintiffs, v. The HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR the CITY OF MINNEAPOLIS and Carla Hills, Secretary of the United States Department of Housing and Urban Development, et al., Third-Party Defendants.

No. 4-71-Civ. 382.

United States District Court, D. Minnesota, Fourth Division.

May 22, 1978.

Charles Quaintance, Jr., Maslon, Kaplan, Edelman, Borman, Brand & McNulty, Minneapolis, Minn., for plaintiffs.

Norman L. Newhall, Lindquist & Vennum, Duane W. Krohnke, Faegre & Benson, Minneapolis, Minn., for defendants and third-party plaintiffs.

Francis X. Hermann, Asst. U. S. Atty., Minneapolis, Minn., for third-party defendants.

MEMORANDUM ORDER

LARSON, Senior District Judge.

The defendant School Board has submitted its Tenth Semi-Annual Report on desegregation in the Minneapolis schools as required by this Court's Order of May 24, 1972. The Court now has before it defendants' motions to terminate the litigation, or, in the alternative, to modify previous Court orders relating to the desegregation of the student population of the district. Plaintiffs, representatives of a class of all school children in the district, oppose both motions. A hearing has been held and hundreds of pages of documents and exhibits have been submitted, which the Court has examined with care. Some preliminary discussion of the background of this case is in order before turning to the merits.

In May 1972, this Court found that defendants, through decisions on the size and location of schools, attendance zones, enrollment policies, transfer policies, and teacher assignments, had acted intentionally to maintain or increase racial segregation in the schools. The Court ordered implementation of the district's own Desegregation/Integration (D/I) plan with certain modifications, one of which was a 35% limitation upon the proportion of minority students in any one school. The D/I plan was akin to a "step at a time" plan. Faculty integration was to be accomplished by the opening of the 1973-74 school year, whereas integration of the student body was to be completed by the 1974-75 school year. The district was ordered to submit semi-annual reports to the Court. Findings of Fact, Conclusions of Law, and Order for Judgment, May 24, 1972 (hereafter Findings).¹

Various changes were made in the D/I plan over the years to reflect changing conditions or to correct portions of the plan that proved unsuccessful. In May 1975 the percentage limitation on minority pupils in any one school was raised to permit not more than 42% of all minorities at one school and not more than 35% of any one minority. Memorandum Order, May 7, 1975. By July 1977 the School Board had fully complied with the Court's 1972 Order, as modified, with the exception of balancing the racial makeup of the student body at a number of schools. The district has never been in full compliance at any one time with that portion of the Court's orders. In July the court rejected the School Board's motion to terminate jurisdiction and ordered full compliance with the 35/42 guidelines by the fall of 1978. Memorandum and Order July 11, 1977.² On August 5, 1977, defendants moved to vacate the July Order and the Court denied the motion. Order, August 8, 1977. No appeals have ever been taken from any of the orders of the Court.

I. Res Judicata.

Plaintiffs oppose defendants' motions on the ground that they are barred by res judicata. Plaintiffs contend that the July 1977 Order was a final judgment from which defendants could have appealed and that they should not now be permitted to reopen issues previously decided. Although there is some force to plaintiffs' contentions, supervision of an equitable decree requires continued willingness by the Court to inquire whether changing circumstances of fact or law mandate modification of its prior orders. Pasadena v. Spangler, 427 U.S. 424, 437, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1975). The Court is therefore of the view that defendants' motions should be reviewed on the merits to determine whether defendants have raised issues that may require changes in the Court's orders.

II. Motion to Terminate Jurisdiction.

Defendants' major argument on their motion to terminate jurisdiction stems from Dayton v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977). In that case the Supreme Court vacated a Court of Appeals decision approving a district court remedy for racial segregation in the schools of Dayton, Ohio. The district court in 1972 had found three separate indicia of violations of the Equal Protection Clause: (1) the pupil population in the Dayton schools was racially imbalanced; (2) use of optional attendance zones for three high schools had "demonstrable racial effects", and (3) the School Board had rescinded resolutions passed by the previous board which had acknowledged a role played by the Board in creating segregative patterns of school attendance. The district court originally ordered a limited remedy to correct the violations found, but the Court of Appeals, after two reversals of the district court, in effect imposed a remedy that would require elimination of systemwide patterns of one race schools in the district.

The Supreme Court held that the mandated remedy could not stand in light of the limited violations found by the district court. It remanded to the district court for reconsideration of whether violations had occurred in light of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), and, if so, formulation of an appropriately tailored remedy. In relation to the latter, the Court said:

"If such violations are found, the District Court in the first instance, subject to review by the Court of Appeals, must determine how much incremental segregative effect these violations had on the racial distribution of the Dayton school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy must be designed to redress that difference, and only if there has been a systemwide impact may there be a systemwide remedy." Dayton v. Brinkman, supra, at 2775.

Viewing Dayton in context, the Court does not perceive it as a statement of particularly novel legal principles for school desegregation cases. The three limited violations were simply not sufficient to support the comprehensive systemwide busing order imposed by the district court in response to the Court of Appeals. The Supreme Court reiterated and applied in a particular fact situation the long-established principle that a court's equitable discretion to fashion a remedy for constitutional wrongs is not plenary and is limited by the scope of the wrongs themselves. Swann v. Charlotte-Mecklenberg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976); Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974). In this light, Dayton appears to have little application to the motion to terminate jurisdiction here; but defendants have placed such emphasis upon the case that the Court deems it necessary to examine their views with some care.

Defendants attribute considerable importance to the portion of Dayton quoted above and conclude that the Supreme Court's directions apply not only to the initial formulation of a remedy but also to the question of terminating jurisdiction in an on-going suit. They ascribe to the language both a qualitative and a quantitative meaning. In quantitative terms, defendants argue, Dayton requires that desegregation remedies involving pupil redistribution be designed to achieve the numerical "amount" of desegregation that would have occurred absent constitutional violations; therefore, they urge, it can also be applied to determine whether a long standing partially implemented court ordered remedy has "worked."

This view requires use of what may be termed an "alternate universe theory," see Brinkman v. Gilligan, D.C., 446 F.Supp. 1232 (S.D.Ohio 1977), on remand, since a remedy's "success" is to be measured against a hypothetical condition. Defendants suggest that district courts are to receive statistical evidence depicting an "alternate universe" where no violations occurred, to compare that hypothetical data with what in fact exists, and to fashion a remedy designed to correct any discrepancy between the hypothetical and the actual facts, and that alone. Similarly, jurisdiction should be terminated when that discrepancy has been corrected.

To that end, defendants have submitted numerous statistical projections setting out the present minority population of certain schools specifically mentioned in the May 1972 Order and hypothetical figures purporting to show what the present minority populations would have been in those schools absent any violations. In each case, the actual figures are lower than the hypothetical figures.³ From this defendants conclude that the "incremental segregative effect" has been erased. In other words, the hypothetical minority population of a particular school is regarded as the norm and so long as the present population is less than that norm, the discrepancy created by the constitutional violations presumably has been cured.

The Court doubts that the Supreme Court intended Dayton to be quantified in precisely this manner. But even assuming the validity of defendants' view, their attempted application of it is fraught with difficulties. The hypothetical figures representing "what would have happened" are based on numerous retrospective assumptions of questionable soundness. For example, this Court found in 1972 that the use of portable classrooms at Mann and Bancroft in 1968-69 increased segregation in those schools, Findings ¶ 11; the district offered no...