Brinkman v. Gilligan, Civ. A. No. C-3-75-304.

• Decision Date: 15 December 1977
• Docket Number: Civ. A. No. C-3-75-304.
• Citation: 446 F. Supp. 1232
• Parties: Mark BRINKMAN et al., Plaintiffs, v. John J. GILLIGAN et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

446 F. Supp. 1232

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

Civ. A. No. C-3-75-304.

United States District Court, S. D. Ohio, W. D.

December 15, 1977.

COPYRIGHT MATERIAL OMITTED

Richard Austin, Dayton, Ohio, Louis R. Lucas, Memphis, Tenn., for plaintiffs.

David C. Greer, Leo F. Krebs, Dayton, Ohio, for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

CARL B. RUBIN, District Judge.

I INTRODUCTION

This matter is once again before the Court pursuant to the mandate of the Supreme Court of the United States. The nature of that mandate is such that although five years and four appeals have intervened, all evidence presented must be reexamined in light of a standard enunciated by the Supreme Court, and plaintiffs' cause of action must be reconsidered ab initio.

In accordance with instructions of the Supreme Court¹ an evidentiary hearing commenced November 1, 1977. Plaintiffs were given an opportunity to enlarge upon the existing record by the presentation of additional evidence and testimony. Eleven witnesses were called during four days of testimony. Following the hearing the Court reexamined in full the record developed at the initial hearing of this matter in November, 1972.

The course of this protracted litigation has been marked by conceptual differences not only as to the facts, but as to the legal significance of those facts. If the passage of five years has moved us no closer to a resolution of this case, it has finally produced a more precise framework by which violations and remedial measures under the Equal Protection Clause of the Fourteenth Amendment may be determined.

The Court finds it essential to describe this framework at the outset of this Order in order that the Findings of Fact may be evaluated by the appropriate legal principles.

Prior to 1976 there was support for the proposition that a violation of the Equal Protection Clause could be proved by a mere showing that actions of state officials had a segregative or discriminatory effect, regardless of their intent. See Kennedy Park Homes Association v. Lackawanna, 436 F.2d 108, 114 (2d Cir. 1970) cert. denied 401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546 (1971); Hawkins v. Town of Shaw, 437 F.2d 1286 (5th Cir. 1971), aff'd on rehearing en banc, 461 F.2d 1171 (5 Cir. 1972)².

Recognizing that some of the language in the earlier cases (particularly Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971), and Wright v. Council of the City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972)), might have led to this conclusion, the Supreme Court in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), stated that "to the extent that those cases rested on or expressed a view that proof of discriminatory racial purpose is necessary in making out an equal protection violation, we are in disagreement." Washington v. Davis, supra at 245, 96 S.Ct. at 2050.

In regard to school desegregation cases, the Court also noted that: "The invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose. That there are both predominantly black and predominantly white schools in a community is not alone violative of the Equal Protection Clause." 426 U.S. at 240, 96 S.Ct. at 2048. The Court reaffirmed this principle sub silentio by its summary remand in Austin Independent School District v. United States, 429 U.S. 990, 97 S.Ct. 517, 50 L.Ed.2d 603 (1976).

While discriminatory effect may be relevant to a determination of segregative intent, it is conclusive on this question only in the rarest of circumstances. See, e. g., Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960).

In Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252, 267, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977), the Court enumerated other factors which might be relevant to the question of segregative intent:

1 The historical background of the decision is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes. . . .

2 The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker's purposes. . . .

3 Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. . . .

4 The legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.

Given the Court's decision in Davis, Austin and Arlington Heights as a predicate, the return of this case for reexamination was inevitable. The original decision of February, 1973 lacked the guidance of the 1976 determinations.

The Supreme Court first reviewed the substance of this Court's finding of "cumulative violations", a term which it found to be "not free from ambiguity". It noted that this Court's finding of racial imbalance in a substantial portion of the schools does not constitute "a violation of the Fourteenth Amendment in the absence of a showing that this condition resulted from intentionally segregative actions on the part of the Board".³

It also found that the effect of optional zones pertained only to high schools, and that the rescission of certain Board resolutions to desegregate the system had significance only if there was a constitutional duty to desegregate ab initio. The Court then concluded that "Judged most favorably to the petitioners, . . . the District Court's finding of constitutional violation did not, under our cases, suffice to justify the remedy imposed."⁴

The Court remanded the case to this Court with the following directions:

The duty of both the District Court and the Court of Appeals in a case such as this where mandatory segregation by law of the races in the schools has long since ceased⁵ is to first determine whether there was any action in the conduct of the business of the school board which was intended to and did in fact discriminate against minority pupils, teachers or staff. . . . If such violations are found the District Court . . . 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 violation. The remedy must be designated to redress that difference and only if there has been a system-wide impact may there be a system-wide remedy.

While the requirement of segregative intent is not new to school desegregation cases (Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 208, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973)), the concept of incremental segregative effect is. As explained by the Supreme Court, it stands as a more precise formulation of the principle that "the extent of an equitable remedy is determined by and may not properly exceed the effect of the constitutional violation." Austin Independent School District v. United States, 429 U.S. 990, 995, 97 S.Ct. 517, 519, 50 L.Ed.2d 603 (1976) (Powell, J. concurring).

We read this language as imposing a burden upon the plaintiffs to prove the effect of any purposeful segregative act, not merely on a theoretical basis, but on a factual basis. The necessity for such burden may be found in the following statement by Justice Powell:

The individual interests at issue here are as personal and important as any in our society. They relate to the family, and to the concern of parents for the welfare and education of their children, especially those of tender age. Families share those interests wholly without regard to race, ethnic origin or economic status. It also is to be remembered in granting equitable relief, that a desegregation decree is unique in that its burden falls not upon the officials or private interests responsible for the offending action, but, rather, upon innocent children and parents. Austin, supra, 429 U.S. at 995, footnote 7, 97 S.Ct. at 519.

Consistent with the admonitions of the Supreme Court, a full review of all evidence and testimony has been undertaken. Pursuant to Rule 52 of the Federal Rules of Civil Procedure, the Court submits its Findings of Fact and Conclusions of Law.

II HISTORICAL PERSPECTIVE

A. Since shortly after the 1913 flood, Dayton's black population has centered almost exclusively on the West Side of Dayton. (T.R.1-623)⁶ Since that time this population has moved steadily north and west. (Defendant's Exhibit BY) Without question the prime factor in this concentration has been housing discrimination, both in the private and public sector. Until recently, realtors avoided showing black people houses which were located in predominantly white neighborhoods. (T.R.1 2040-2055) In the 1940's, public housing was strictly segregated according to race. (T.R.1 182-186) This segregated housing pattern has had a concomitant impact upon the composition of the Dayton public schools. (T.R.2-380, 382-Robert Rice)

B. There is little dispute between the parties concerning early practices of the Dayton school system in its treatment of black students. See Request for Admissions filed October 16, 1972 and Answers to Plaintiff's Requests for Admissions filed October 26, 1972. Many of those practices, if they existed today, would violate the Equal Protection Clause. Among them are the following:

1. Between approximately 1910 and 1920, black elementary children were taught in separate and inadequate facilities located in the back of Garfield School. (T.R.1-619-623-Ella Lowrey)

In the 1920's black children were moved into the main brick building. However, two to three times as many black children as white children were assigned to a classroom.

These practices continued until approximately 1934. At

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