Brinkman v. Gilligan, C-3-75-304.

• Decision Date: 17 June 1999
• Docket Number: No. C-3-75-304.,C-3-75-304.
• Citation: 85 F.Supp.2d 761
• Parties: Mark BRINKMAN, et al., Plaintiffs, v. John J. GILLIGAN, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

Page 761

85 F.Supp.2d 761

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

No. C-3-75-304.

United States District Court, S.D. Ohio, Western Division.

June 17, 1999.

Michael Sussman, Sussman Bergstein Wotorson & Whateley, Goshen, NY, for Plaintiffs.

Roger Francis Carroll, James G. Tassie, Ohio Attorney General, Columbus, OH, Steven Routh, Hogan & Hartson, Washington, DC, Dwight Allan Washington, Dwight A. Washington Co LPA, Dayton, OH, Scott F. Sturges, Buckley King & Bluso, Columbus, OH, James Alan Dyer, Karl R. Ulrich, Sebaly, Shillito & Dyer, Dayton, OH, for Defendants.

DECISION AND ENTRY OVERRULING, FOR WANT OF JURISDICTION, DAYTON DEFENDANTS' MOTION TO SECURE ADDITIONAL RELIEF (DOC. # 274); DECISION AND ENTRY REJECTING JURISDICTIONAL CHALLENGE TO DAYTON DEFENDANTS' MOTION TO MODIFY STUDENT ASSIGNMENT PLAN (DOC. # 275); CONFERENCE CALL SET

RICE, Chief Judge.

On April 17, 1972,¹ the Plaintiffs, a group of school children, their parents and the NAACP, initiated this lawsuit, alleging that the public schools of the Dayton Public School System were segregated in violation of the Equal Protection Clause of the Fourteenth Amendment. The Plaintiffs named two groups of Defendants, to wit: 1) the Dayton Board of Education, six of its members and its superintendent ("Dayton Defendants"); and 2) the Governor of the state of Ohio, the state Attorney General, the Ohio State Board of Education, the Ohio Department of Education and the State Superintendent of Public Instruction ("State Defendants").² Although the Plaintiffs brought this lawsuit as a class action under Rule 23 of the Federal Rules of Civil Procedure (see Doc. # 1 at ¶ 3), there is no indication that this litigation has been certified as such, either at the Plaintiffs' request or otherwise.³ After being dormant for more than ten years, this litigation was resuscitated in December, 1997, when the Dayton Defendants filed their Motion to Secure Additional Relief (Doc. # 274) and their Motion to Modify Student Assignment Plan (Doc. # 275). Thereafter, this Court entered Case Management Order No. 1, in which it directed the parties and the amicus curiae to address initially whether it has jurisdiction to entertain either of these motions and established a briefing schedule on that issue. See Doc. # 281. The parties have filed their memoranda, and the Court now turns to the issue of whether it has subject matter jurisdiction to reach the merits of either or both of those motions, beginning its analysis with a review of the path of this litigation through the federal courts.

Before proceeding with the above analysis, however, the Court must stress in the most emphatic of language, that, contrary to the popular belief in the community and in the media which informs that community, there is not presently pending before this Court a motion to end busing in the Dayton school system. Although the Dayton Defendants have filed a motion seeking to modify the school assignment system (see Doc. # 275), by dividing the school district into three zones, each of which would have a racial balance which is within 15%, plus or minus, of the racial balance of the system as a whole, with students assigned, at least at the elementary school level, to such a school located within the particular zone in which they reside, each such school having a racial balance of plus or minus 15% of the zone in which it is located, that motion most definitely is not a request to end busing and to declare that the Dayton school system is unitary.

Judge Carl B. Rubin, now deceased, oversaw this litigation from its inception through the entry of a Consent Judgment between the two groups of Defendants on December 9, 1987 (Doc. # 273).⁴ That judicial officer decided to bifurcate the issues of liability presented by the Plaintiffs' Complaint (Doc. # 1), proceeding first with their claims against the Dayton Defendants and reserving their claims against the State Defendants for later resolution. See Doc. # 35. Thus, the initial trial of this litigation focused exclusively on the question of whether the actions of the Dayton Defendants had caused the Dayton Public Schools to be segregated, in violation of the Equal Protection Clause of the Fourteenth Amendment. Id. (indicating that the initial trial would address only "whether the school system of Dayton [was] a segregated one by reason of the acts of the Dayton Board of Education").

On February 7, 1973, Judge Rubin issued his Decision, finding that the actions of the Dayton Defendants constituted cumulative violations of the Equal Protection Clause of the Fourteenth Amendment. See Doc. # 59. On July 17, 1973, Judge Rubin entered an Order in which he adopted, with one minor alteration, the remedial plan proposed by the majority of the Dayton Board of Education. See Doc. # 66. The Plaintiffs and the Dayton Defendants both appealed to the Sixth Circuit Court of Appeals. That court affirmed Judge Rubin's finding that the Dayton Defendants were liable; however, it concluded that the remedy imposed by that judicial officer was "inadequate, considering the scope of the cumulative violations" and remanded the matter. Brinkman v. Gilligan, 503 F.2d 684, 704 (6th Cir.1974) ("Brinkman I").⁵

On remand, Judge Rubin adopted a new remedial plan, which the Sixth Circuit once again rejected, because it failed to eliminate the basic pattern of one-race schools and the continuing effects of past segregation throughout the system. Brinkman v. Gilligan, 518 F.2d 853 (6th Cir.1975) ("Brinkman II"). Accordingly, the Sixth Circuit remanded the matter to Judge Rubin, directing him to adopt a system-wide plan for the 1976-77 school year. Id. at 857.

On December 29, 1975, and on March 23, 1976, Judge Rubin entered Orders (Docs. # 105 and # 121, respectively), under which every school in the Dayton system was required to have, by September 1, 1976, a racial balance which was within 15%, plus or minus, of the racial balance of the system as a whole. In his March 23rd Order, Judge Rubin wrote:

No determination herein shall be deemed to bar the submission of any other plan that would be consistent with the standards set forth in the order of December 29, 1975. The Court will at all times entertain a motion by any party for consideration of any specific procedure and approval will be freely granted so long as the restrictions set forth above are adhered to.

Doc. # 121 at 3.⁶ Upon appeal by the Dayton Defendants from those Orders, the Sixth Circuit affirmed. Brinkman v. Gilligan, 539 F.2d 1084 (6th Cir.1976) ("Brinkman III"). The Dayton Defendants then appealed to the United States Supreme Court, which reversed, concluding that the finding that the Dayton Defendants had engaged in cumulative violations was too ambiguous to support the district-wide remedy, "implicitly, if not explicitly, imposed by the [Sixth Circuit]." Dayton Board of Education v. Brinkman, 433 U.S. 406, 421, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977) ("Dayton I"). Accordingly, the Supreme Court remanded for further proceedings, including an additional evidentiary hearing.⁷

After having conducted such a hearing, Judge Rubin, on December 15, 1977, issued his Findings of Fact and Conclusions of Law, concluding that the Plaintiffs had failed to meet their burden of proof that the Dayton Defendants had operated a segregated school system in violation of the Equal Protection Clause, thus dismissing this litigation. See Doc. # 181. Upon the Plaintiffs' appeal, the Sixth Circuit reversed and directed Judge Rubin to reinstate his March 23, 1976, desegregation plan. Brinkman v. Gilligan, 583 F.2d 243 (6th Cir.1978) ("Brinkman IV"). Once again, the Dayton Defendants obtained review from the Supreme Court; however, on this occasion, the Supreme Court affirmed the decision of the Sixth Circuit. Dayton Board of Education v. Brinkman, 443 U.S. 526, 99 S.Ct. 2971, 61 L.Ed.2d 720 (1979) ("Dayton II"). Thus, with minor modifications,⁸ the Dayton Public Schools have been operated under Judge Rubin's March 23, 1976 Order (Doc. # 121), since the beginning of the 1976-77 school year.

The Supreme Court's decision in Dayton II brought to a close the portion of this lawsuit addressing the liability of the Dayton Defendants and the remedy to be imposed as a result of their constitutional violations. However, the State Defendants' liability had yet to be resolved. After having conducted a hearing on that issue, Judge Rubin issued his Decision, on May 24, 1985, concluding that the State Defendants, with the exception of the State Board of Education and the Ohio Department of Education,⁹ were jointly and severally liable with the Dayton Defendants for the illegal segregation that existed within the Dayton school system. Brinkman v. Gilligan, 610 F.Supp. 1288, 1297 (S.D.Ohio 1985). Judge Rubin based that conclusion on the finding that the State Defendants had an affirmative obligation, under both federal and state law, to investigate segregation within the Dayton public school system, and to eliminate such condition by withholding state funding from that system. Id. Finding that the failure of the State Defendants to take those actions was a proximate cause of the constitutional deprivation suffered by the Plaintiffs, he ordered that the individual State Defendants, the Governor, Attorney General and Superintendent of Public Instruction, "share equally with the Dayton Board of Education all expenses incurred to date, as well as future costs as they are incurred, in remedying the unconstitutional racial segregation in the Dayton school system." Id. at 1297-98. It bears emphasis that, in his Decision, Judge Rubin did not address the issue of what remedy was necessary to desegregate the Dayton Public Schools; that decision had been reached some nine years before. Rather, the issue resolved therein was whether the State Defendants would be held liable for paying for a portion of that remedy. Judgment was...