Brinkman v. Gilligan

• Decision Date: 20 August 1974
• Docket Number: 73-1975,Nos. 73-1974,s. 73-1974
• Citation: 503 F.2d 684
• Parties: Mark BRINKMAN et al., Plaintiffs-Appellants, v. John J. GILLIGAN et al., Defendants-Appellees. Mark BRINKMAN et al., Plaintiffs-Appellees, v. DAYTON BOARD OF EDUCATION, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 684

503 F.2d 684

Mark BRINKMAN et al., Plaintiffs-Appellants, v. John J. GILLIGAN et al., Defendants-Appellees.

Mark BRINKMAN et al., Plaintiffs-Appellees, v. DAYTON BOARD OF EDUCATION, Defendants-Appellants.

Nos. 73-1974, 73-1975.

United States Court of Appeals, Sixth Circuit.

Argued April 4, 1974.

Decided Aug. 20, 1974.

Louis R. Lucas, Ratner, Sugarmon & Lucas, Memphis, Tenn., for Mark Brinkman, et al.; Paul R. Dimond, Ann Arbor, Mich., Nathaniel R. Jones, New York City, Richard Austin, Dayton, Ohio, on briefs.

John D. Holschuh, Alexander, Ebinger, Holschuh, Fisher & McAlister, Columbus, Ohio, for John J. Gilligan, et al.; Alvin J. McKenna, Columbus, Ohio, Asher Bogin, Dayton, Ohio, David C. Greer, Leo F. Krebs, Dayton, Ohio, Thomas V. Martin, Asst. Atty. Gen., Columbus, Ohio, on briefs.

David C. Greer, Bieser, Greer & Landis, Dayton, Ohio, for Dayton Board of Education; Leo F. Krebs, Bieser, Greer & Landis, Dayton, Ohio, on briefs.

Before PHILLIPS, Chief Judge, and PECK and MILLER, Circuit Judges.

PHILLIPS, Chief Judge.

This is a school desegregation case directed against the public school system of Dayton, Ohio. For the reasons set forth below, we affirm in part and remand the case to the District Court for further proceedings.

Plaintiffs-appellants are black and white Dayton parents who bring this class action on their own behalf, on behalf of their minor children, and on behalf of all others similarly situated. In addition, the National Association for the Advancement of Colored People (NAACP) joined as a party plaintiff. The complaint named the Governor of Ohio, the Attorney General of Ohio, the Ohio State Board of Education, the Superintendent of Public Instruction of the Ohio Department of Education, the Dayton Board of Education, the six individual members of the Dayton Board and the Superintendent of the Dayton School District as parties defendants. ¹ The Dayton Board of Education has cross appealed.

I. Chronology of Proceedings

In their complaint filed on April 17, 1972, appellants sought, inter alia, an injunction enjoining the Dayton defendants from continuing their allegedly unconstitutional policy of operating the public schools in Dayton in a manner that perpetuated racial segregation. The complaint further averred numerous racially discriminatory practices for which the State defendants had allocated educational resources.

The complaint was filed in the United States District Court for the Southern District of Ohio, Eastern Division, which is located at Columbus, Ohio, rather than in the Western Division at Dayton (the situs of the subject schools) on the basis that the State defendants were domiciled in Franklin County (Columbus). Motions to dismiss for failure to join necessary parties and for improper venue and alternative motions to transfer the action to the District Court at Dayton were filed by the State defendants, the Dayton Board of Education and three individual Dayton Board members. On June 22, 1972, the District Court overruled the motions to dismiss for improper venue and denied the motions to transfer, but did not rule on the motion to dismiss for want of necessary parties. Thereafter, on July 24, 1972, the Dayton defendants and the State defendants filed their answers denying the material allegations of the plaintiffs' complaint.

In accordance with the proposed order of procedure, an expedited hearing before District Judge Carl B. Rubin was conducted from November 13 through December 1, 1972, limited to the single issue of whether the school system of Dayton was a segregated one by reason of acts of the Dayton Board of Education. On February 7, 1973, the District Court filed its Findings of Fact and Memorandum Opinion of Law in which it found that (1) racially imbalanced schools, (2) optional attendance zones, and (3) rescission by the Dayton Board of Education of three resolutions calling for racial and economic balance in each school in the Dayton system were 'cumulatively in violation of the Equal Protection Clause' of the Constitution. In its February 7, 1973, decision, the District Court ordered the Dayton Board to submit a plan which would (1) abolish all optional zones, (2) restate the priorities of the Board's Freedom of Enrollment program so that racial transfers would take precedence over curriculum transfers, (3) maintain faculty assignment practices so that each school would continue to reflect the approximate ratio of the total black-to-white faculty in the Dayton system, and (4) establish hiring practices that would enable the clerical and maintenance personnel employed by the Board to approximate the proportion of black-to-white population existing within the Dayton system. The district Court further stated that the foregoing elements 'shall be considered as a minimum' and that the plan to be submitted by the Board should otherwise conform in all respects to the requirements of law, citing Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) and Davis v. Board of School Commissioners of Mobile County, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971).

In compliance with the February 7, 1973, order of the District Court, the Dayton Board on March 19, 1973, submitted a desegregation plan to the District Court. This plan contained eleven points which are summarized below:

I. Elimination of Optional Zones-- eliminated optional attendance zones for elementary and high school students.

II. Freedom of Enrollment Priorities-- revised the system's Freedom of Enrollment program in accordance with a specified set of priorities.

III. Faculty Assignment Practices-- provided that faculty assignments for each school in the system should reflect the ratio of white-to-black faculty in the entire system.

IV. Hiring Policies for Classified Personnel-- provided that blacks would be hired for classified positions, e.g. clerical custodial and food service staff, to reflect the proportion of the black-to-white population residing within the Dayton School District.

V. Science Environmental Program-- proposed the establishment of a city-wide elementary science program guided by a trained staff working at four centers. The program was to be mandatory and children were to be bused to produce a racial mix that approximates the ratio between black and white students in the system as a whole.

VI. Patterson-Stivers Vocational High School-- combined two existing vocational schools into a new unified cooperative school with a district-wide attendance area.

VII. The Musical Stereopticon-- formed an elementary and high school band orchestra and chorus on an all-city basis.

VIII. Integrated Athletics-- required schools that have no minorities on their teams to schedule schools that do have minorities represented. High school schedules were to be administered by a central athletic office to insure that racial isolation did not exist.

IX. Minority Language Program-- required all classroom teachers and administrators at the elementary school level to participate in a series of in-service workshops on linguistic differences that exist in American English.

X. Living Arts Center-- created departments in art, creative writing, dance and drama to permit students, teachers, and parents to expand their knowledge in these areas.

XI. Control Centers-- created rumor control centers, school guidance centers, and area learning centers to create a more secure climate for quality education in the school system.

In addition to the plan submitted by the Dayton Board, separate plans were submitted to the District Court by the minority members of the Dayton Board and the Dayton Classroom Teachers' Association. The Board minority submitted its more comprehensive plan because it believed that the plan of the Board majority would maintain the status quoand hence did not comply with the February 7, 1973, order of the District Court to conform in all respects with Swann, supra, and Davis, supra. Further, the plaintiffs-appellants filed objections to the plan of the Board majority primarily on the grounds that the majority plan 'froze in' the present unconstitutional system of segregation and would fail to eliminate racially identifiable schools when other alternative remedies, such as busing of children to other schools, were available.

On July 13, 1973, after considering the three desegregation plans before it, the District Court issued its Supplemental Order on Remedy. The District Court essentially accepted the plan of the Board majority except that the Dayton Board was ordered to submit a freedom of choice plan for the Dayton high schools. The District Court, however, expressed its 'disappointment at the limited nature of Points V through XI' of the plan of the Board majority, and stated that the desired goal was not attained completely by the majority plan.

The District Court then stated:

'There remain for consideration two further questions which the Court has reserved: The matter of the socalled Metropolitan School District and the status of defendants State of Ohio through its Governor and the Ohio Department of Education.

'The findings by the Court in its Order of February 7, 1973, and the disposition of the Board of Education's plan appear to moot the metropolitan question and to require the dismissal of these non-Dayton defendants. Plaintiffs are hereby granted thirty (30) days within which to file memoranda on either or both of these questions. Defendants are granted thirty (30) days from the date of such filing to file answer memoranda and plaintiffs are granted thirty (30) days from defendants' filing to file reply memoranda. An evidentiary hearing will be granted upon either of such questions upon the showing of a need therefor.'

The District Court concluded its July 13, 1973, order as follows:

'Nothing that we have said today should be interpreted as a repudiation of the neighborhood school concept. To the contrary,...