Bronson v. BD. OF EDUCATION, ETC., No. C-1-74-205.

• Court: United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
• Citation: 535 F. Supp. 846
• Docket Number: No. C-1-74-205.
• Parties: Mona BRONSON, et al., Plaintiffs, v. BOARD OF EDUCATION OF the SCHOOL DISTRICT OF the CITY OF CINCINNATI, et al., Defendants.
• Decision Date: 11 February 1982

535 F. Supp. 846

Mona BRONSON, et al., Plaintiffs,
v.
BOARD OF EDUCATION OF the SCHOOL DISTRICT OF the CITY OF CINCINNATI, et al., Defendants.

No. C-1-74-205.

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

February 11, 1982.

535 F. Supp. 847

COPYRIGHT MATERIAL OMITTED

535 F. Supp. 848

Thomas I. Atkins, Teresa Demchak, NAACP Special Contribution Fund, New York City, G. Phillip Arnold, William Caldwell, Ratner & Sugarmon, Memphis, Tenn., Elizabeth A. McKanna, Cincinnati, Ohio. Leonard D. Slutz, Wood, Lamping, Slutz & Reckman, Cincinnati, Ohio, Solvita McMillan, Cleveland, Ohio, for plaintiffs

John A. Lloyd, Jr., Nancy A. Lawson, Glenn Weissenberger, Cincinnati, Ohio, for defendant City of Cincinnati School Dist.

A. David Nichols, Metzger, Phillips & Nichols Co., LPA, Cincinnati, Ohio, Mark O'Neill, Weston, Hurd, Fallon, Paisley & Howley, Cleveland, Ohio, for State of Ohio; Special Counsel to Attorney Gen., State of Ohio; Represents State Bd. of Ed.

Gary E. Brown, Richard W. Ross, Asst. Attys. Gen., Columbus, Ohio, for defendants William J. Brown, Atty. Gen. and James A. Rhodes, Governor.

James W. Farrell, Jr., Mark A. Vander Laan, Dinsmore, Shohl, Coates & Deupree, Cincinnati, Ohio, for defendants Deer Park City School Dist., Madeira City School Dist., Mariemont City School Dist., North College Hill City School Dist., Norwood City School Dist., St. Bernard-Elmwood Place City School Dist., Reading Community City School Dist.

Bruce I. Petrie, John B. Pinney, Graydon, Head & Ritchey, Cincinnati, Ohio, for defendant Indian Hill Exempted Village School Dist.

George E. Roberts, III, Ennis & Roberts, Cincinnati, Ohio, for defendant Lackland City School Dist.

Michael E. Maundrell, Rendigs, Fry, Kiely & Dennis, Cincinnati, Ohio, for defendant Princeton City School Dist.

Lawrence McTurnan, McTurnan & Meyer, Indianapolis, Ind., for defendants Finneytown Local School Dist., Forest Hills Local School Dist., Northwest Local School Dist., Three Rivers Local School Dist., Hamilton County School Dist.

John C. Elam, Suzanne K. Richards, Vorys, Sater, Seymour & Pease, Columbus, Ohio, for defendant Wyoming City School Dist.

James W. Harper, Cincinnati, Ohio, for defendant Oak Hills Local City School Dist.

Arnold Morelli, Bauer, Morelli & Heyd, Cincinnati, Ohio, for defendant Green-Hills Forest Park City School Dist.

William E. Santen, William B. Singer, Santen, Santen & Hughes Co., LPA, Cincinnati, Ohio, for defendant Sycamore City School Dist.

 TABLE OF CONTENTS
                INTRODUCTION .......................................... 849
                 I. Positions of the Parties ...................... 850
                 A. Plaintiffs ................................. 850
                 B. Defendants ................................. 851
                 II. Summary of Discussion ......................... 852
                 III. Synopsis of Conclusions ....................... 860
                DISCUSSION ............................................ 861
                 I. Pre-1975 School Desegregation Cases Considered
                 by Sixth Circuit: Held to Have
                 Changed No Law Applicable to Deal.................... 861
                 A. Green, Raney, and Monroe: Considered
                 by District Court and Sixth
                 Circuit in Deal II, 1968, 1969 ................... 861
                 1. Conclusion of District Court and
                 Sixth Circuit: Inapplicability of
                 Green, Raney, and Monroe to Deal 861
                 2. As Remedy Cases, Green, Raney,
                 and Monroe Were Inapplicable to
                 Deal .......................................... 864
                

535 F. Supp. 849
                 B. Swann and Keyes: Considered by the
                 Sixth Circuit in Bronson, 1975 .................. 865
                 1. Inapplicability of Swann to Deal 866
                 2. Keyes: No Changes in the Law of
                 School Desegregation Warranting
                 Departure From the Application
                 of Collateral Estoppel ......................... 867
                 a. Keyes: Supreme Court Holding
                 That a Finding of Contemporary
                 De Jure Segregation in
                 a Portion of the School System
                 Is Highly Relevant in
                 Assessing Claim of Current
                 Systemwide De Jure Segregation ............. 869
                 1. The District Court ...................... 869
                 2. The Tenth Circuit Court
                 of Appeals .............................. 870
                 3. The Supreme Court ....................... 870
                 b. Sixth Circuit's Discussion of
                 Keyes in Bronson ........................... 874
                 c. Most of the Principles Developed
                 by the Supreme Court
                 in Keyes Were Not Directly
                 Applicable to Deal Because
                 Unlike the Keyes Plaintiffs,
                 the Deal Plaintiffs Failed to
                 Prove Contemporary De Jure
                 Segregation in any Portion of
                 the Cincinnati School System 875
                 II. Columbus and Dayton II: Post-1975 School
                 Desegregation Cases, Not Considered by
                 the Sixth Circuit in Connection With Deal
                 and Bronson ........................................ 878
                 A. Preliminary Comments ............................ 878
                 B. Evolutionary Developments: Extension
                 of Keyes' Principles to Non-Statutory
                 Dual School Systems, Created and
                 Maintained by Remote, Intentionally
                 Segregative Acts ................................ 879
                 C. Reconsideration of Deal in Light of
                 Columbus and Dayton II: Conflict in
                 Legal Principles ................................ 883
                 1. Re-examination of Deal: Legal
                 Import of Historical Facts ................... 883
                 2. Sixth Circuit's Position on the
                 Legal Import of Historical Facts
                 in Deal Unaffected by Pre-1975
                 Supreme Court Desegregation
                 Cases ........................................ 886
                 3. Sixth Circuit's Position on the
                 Legal Import of Historical Facts
                 in Deal Compared to Supreme
                 Court's Position as Developed in
                 Columbus and Dayton II ....................... 887
                 a. Re-examination of Columbus
                 and Dayton II ............................. 888
                 b. Supreme Court Position on
                 Evidence of School Board's
                 Remote Discriminatory Practices
                 Offered to Meet Plaintiffs'
                 Initial Burden of Proof 891
                 c. Sixth Circuit's Position in Deal
                 II Eliminated as a Viable
                 Legal Option Under Columbus
                 and Dayton II ............................. 892
                 III. The Sixth Circuit 1975 Bronson Opinion
                 and the Application of Collateral Estoppel
                 In Light of Columbus and Dayton II ................ 894
                 A. Collateral Estoppel: General Principles
                 and Necessary Inquiries ....................... 894
                 B. Sixth Circuit 1975 Bronson Opinion:
                 Conclusions as to Appropriate Application
                 of Collateral Estoppel ......................... 898
                 C. Appropriate Application of Collateral
                 Estoppel In Light of Columbus and
                 Dayton II ...................................... 900
                 1. Broader Rules of Res Judicata
                 Inapplicable ................................ 900
                 2. Identity of Issues In Light of
                 Columbus and Dayton II ...................... 900
                 a. Collateral Estoppel Inapplicable
                 to Issues Not Actually
                 Litigated and Determined in
                 Deal ..................................... 900
                 b. Collateral Estoppel Technically
                 Applicable to Issues Actually
                 Litigated and Determined
                 in Deal .................................. 903
                 3. Columbus and Dayton II Have
                 Not Significantly Changed the
                 Law Applicable to the Issues Actually
                 Litigated and Determined in
                 Deal ........................................ 904
                 4. Columbus and Dayton II Present
                 No Reason, Not Discernible in
                 1975, to Justify an Exception to
                 Collateral Estoppel With Respect
                 to Issues Actually Litigated and
                 Determined in Deal .......................... 906
                 IV. Conclusions ........................................ 907
                 A. Issues Not Actually Litigated and
                 Determined in Deal ............................. 907
                 B. Issues Actually Litigated and Determined
                 in Deal ........................................ 908
                 C. Practical Effect on Conclusions on
                 Admissibility and Consideration of Pre-July
                 26, 1965 Evidence .............................. 908
                 Tentative Agenda For Meeting Between Court
                 and Counsel on Friday, February 26, 1982 ............... 909
                 Appendix .............................................. 910
                

DECISION AND ENTRY CONCERNING APPLICABILITY OF COLLATERAL ESTOPPEL; CONFERENCE SET

RICE, District Judge.

INTRODUCTION

On October 17, 1980, the Court met with counsel for all parties in this school desegregation case for the primary purpose of discussing the Court's Entry of October 16, 1980,¹ "Setting Forth This Court's Interpretation

535 F. Supp. 850

of Sixth Circuit Opinion in Bronson v. Board of Education, 525 F.2d 344 (6th Cir. 1975)." (doc. # 476) In the Entry, the Court stated its opinion that the Sixth Circuit's decision, if applicable in this case, foreclosed the Bronson plaintiffs from relitigating the issues raised and resolved in the first Cincinnati school desegregation litigation. Deal v. Cincinnati Board of Education, 244 F.Supp. 572 (S.D.Ohio 1965) (Deal I), aff'd, 369 F.2d 55 (6th Cir. 1966), cert. denied, 389 U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114 (1967); Deal v. Cincinnati Board of Education, 419 F.2d 1387 (6th Cir. 1969) (Deal II), cert. denied, 402 U.S. 962, 91 S.Ct. 1630, 29 L.Ed.2d 128 (1971). Therein, Judge Peck had found that the Cincinnati Board of Education was not liable or legally responsible for the racial composition of the Cincinnati school system in 1965, because the racial imbalance existing in the system at that time had not been intentionally caused by the practices and policies of the board. In short, the Court found no intent to discriminate or segregate on the part of the school board, and thus, no violation of plaintiffs' fourteenth amendment rights. This Court concluded that the Sixth Circuit had determined that Deal I and II were still good law in 1975, and that the Bronson plaintiffs were collaterally estopped from attacking Judge Peck's findings of fact and conclusions of law. In reaching that conclusion, this Court necessarily adopted the position taken by the Sixth Circuit that, between July 26, 1965 (the date of the District Court's decision in Deal I) and September 24, 1975 (the date of the Sixth Circuit's Bronson decision), there had been no significant changes in the law applicable to this case that would render the application of collateral estoppel inappropriate.

A secondary purpose of the October 17 meeting...