Brinkman v. Gilligan, 78-3060

• Decision Date: 27 July 1978
• Docket Number: No. 78-3060,78-3060
• Citation: 583 F.2d 243
• Parties: Mark BRINKMAN et al., Plaintiffs-Appellants, v. John J. GILLIGAN et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 243

583 F.2d 243

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

No. 78-3060.

United States Court of Appeals Sixth Circuit.

Argued April 10, 1978.

Decided July 27, 1978.

Paul R. Dimond, O'Brien, Moran & Dimond, Ann Arbor, Mich., Nathaniel R. Jones, NAACP, Gen. Counsel, New York City, Louis R. Lucas, Ratner, Sugarmon, Lucas, Salky & Henderson, Memphis, Tenn., William E. Caldwell, Lawyers' Committee for Civil Rights Under Law, Washington, D.C., for plaintiffs-appellants.

Roy F. Martin, Asst. Atty. Gen., Columbus, Ohio, for Gilligan.

David C. Greer, Leo F. Krebs, Dayton, Ohio, for Dayton Bd. of Ed.

Armistead W. Gilliam, Jr., Charles J. Faruki, Dayton, Ohio, for Ohio State Bd. of Ed. & State Super. of Pub. Inst.

Drew S. Days, III, Brian K. Landsberg, Joel L. Selig, Dept. of Justice, Washington, D.C., for amicus curiae United States.

Before PHILLIPS, Chief Judge, LIVELY, Circuit Judge, and PECK, Senior Circuit Judge.

PHILLIPS, Chief Judge.

For the fourth time this court is called upon to review the protracted proceedings of this action brought by plaintiffs ¹ to obtain relief from alleged unconstitutional segregation of the Dayton public schools resulting from actions by defendants. ² Reference is made to the previous decisions of this court for a detailed recitation of facts and issues. See Brinkman v. Gilligan, 539 F.2d 1084 (6th Cir. 1976) (Brinkman III ), Vacated and remanded sub nom., Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977); Brinkman v. Gilligan, 518 F.2d 853 (6th Cir. 1975) (Brinkman II ); Brinkman v. Gilligan, 503 F.2d 684 (6th Cir. 1974) (Brinkman I ).

In its initial opinion filed February 7, 1973, the district court found that racially imbalanced schools, optional attendance zones, and the rescission by the Dayton Board of Education (hereinafter Board) of three resolutions calling for racial and economic balance in each public school were "cumulatively in violation of the Equal Protection Clause" of the Constitution. In Brinkman I, supra, 503 F.2d 684, this court affirmed the holding of the district court that the Dayton public schools were unlawfully segregated by race and also reviewed four school practices ³ which allegedly maintained and expanded the segregated school system. This court determined that at that time it was unnecessary to consider whether these four practices should be included as part of the constitutional violation in view of the conclusion that the remedy ordered by the district court was inadequate "considering the scope of the cumulative violations." Id. at 704.

Following remand, this court again rejected the desegregation plan adopted by the district court on the grounds that the plan failed to eliminate the "basic pattern of one-race schools" and the "continuing effects of past segregation" throughout the Dayton school system. Brinkman II, supra, 518 F.2d at 857. We again remanded the case to the district court with the following instructions:

On remand we direct that the court adopt a system-wide plan for the 1976-77 school year that will conform to the previous mandate of this court and to the decisions of the Supreme Court in Keyes (Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548) and Swann (Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554). We direct that this plan be adopted not later than December 31, 1975, so that it may be placed in effect at the beginning of the new school year in September 1976. Id. at 857.

After evidentiary hearings and the appointment of a master, the district court ordered the implementation of a systemwide desegregation plan for the 1976-77 school year subject to flexible guidelines. ⁴

In Brinkman III, supra, 539 F.2d 1084, this court approved the systemwide plan which thus became operative for the 1976-77 school year. Subsequently, the Supreme Court vacated the judgment ⁵ of this court and ordered that the case be remanded to the district court for further proceedings. Dayton Board of Education v. Brinkman, supra, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977). The Supreme Court directed that the district court:

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 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. (citations omitted). 433 U.S. at 420, 97 S.Ct. at 2775.

On remand, the district court conducted evidentiary hearings November 1-4, 1977, and in its decision issued December 15, 1977, held that:

(T)here is a burden upon plaintiffs to establish by a preponderance of evidence Both a segregative intent and an incremental segregative effect in order to establish a violation Of the Equal Protection Clause of the Fourteenth Amendment. (emphasis added). JA-I at 104.

Pursuant to this misunderstanding ⁶ of the Supreme Court's mandate, the district court individually examined each alleged constitutional violation both for segregative intent and incremental segregative effect. The district court concluded that plaintiffs had failed to meet this burden of proving a constitutional violation and dismissed the complaint. Following the filing of this appeal, this court on January 16, 1978, ordered defendants "to cause said system-wide desegregation plan to remain in effect pending appeal, or until further order of this court."

Appellants and the United States as amicus curiae (hereinafter collectively referred to as appellants) contend that various findings of fact and conclusions of law of the district court are both clearly erroneous and are based upon incorrect legal standards. They urge this court to address the legal and factual issues previously reserved in Brinkman I, supra, 503 F.2d 684 and to find that the alleged constitutional violations have a systemwide impact which requires reinstatement of the systemwide remedy approved by this court in Brinkman III, supra, 539 F.2d 1084. Appellants raise four principal assignments of error. First, they contend that the district court misinterpreted the legal relevance of the Board's conduct prior to the time of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I ), and that the district court's finding that "(a)t no time . . . did defendant maintain a dual system of education" ⁷ was either based upon the application of incorrect legal standards or was a clearly erroneous factual finding. Appellants argue that as a result of these errors, the district court ignored the principle that if the Board was operating a dual school system at the time of Brown I, or at any time thereafter, it subsequently had an affirmative duty to eliminate the systemwide effects of its prior acts of segregation. Second, appellants argue that the district court erred in applying improper legal standards for determining segregative intent. They assert that the district court both failed to utilize the established burden-shifting principles in determining whether various practices were the product of segregative intent and disregarded the established legal standards for determining segregative intent. Third, appellants contend that the district court erred in failing to apply the presumption and burden-shifting principles concerning causation and the impact of unconstitutional conduct. Finally, appellants assert that the district court misallocated the burden of proof on the issue of the incremental segregative effect of the alleged constitutional violations. They argue that the district court erred in holding that plaintiffs were required to demonstrate both the existence of racial discrimination and the specific effects of that discrimination.

Upon a review of the entire record, the arguments of counsel, and upon consideration of the legal and factual issues previously reserved by this court in Brinkman I, supra, 503 F.2d 684, we conclude that the systemwide desegregation plan approved by this court in Brinkman III, supra, 539 F.2d 1084, should be reinstated. The record demonstrates conclusively that at the time of Brown I, defendants intentionally operated a dual school system and that subsequently, defendants never fulfilled their affirmative duty to eliminate the systemwide effects of their prior acts of segregation. To the extent that any findings of fact and conclusions of law of the district court are to the contrary, they are either clearly erroneous, Rule 52, Fed.R.Civ.P., or are incorrect as a matter of law.

I. Pre-Brown violations

This court previously reviewed defendants' purported intentional segregative acts alleged to have occurred prior to 1954 and concluded that "the Dayton school system has been and is guilty of de jure segregation practices" ⁸ which constituted a "basically dual system," ⁹ at the time of Brown I. Although we believe this finding to have been implicit in the previous decisions of this court, we now expressly hold that at the time of Brown I, defendants were intentionally operating a dual school system in violation of the Equal Protection Clause of the fourteenth amendment. Our holding is based upon substantial evidence, much of which is undisputed. The finding of the district court to the contrary ¹⁰ is clearly erroneous, Rule 52, Fed.R.Civ.P., and is based upon both a failure to attribute the proper legal significance to the evidence of pre-Brown I violations...