Bronson v. Board of Ed. of City School Dist. of Cincinnati, 75--1244

• Citation: 525 F.2d 344
• Decision Date: 30 October 1975
• Docket Number: No. 75--1244,75--1244
• Parties: Mona BRONSON et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF CINCINNATI, its members, etal., Defendants-Appellees. . Cause
• Court: U.S. Court of Appeals — Sixth Circuit

Page 344

525 F.2d 344

Mona BRONSON et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF

CINCINNATI, its members, etal., Defendants-Appellees.

No. 75--1244.

United States Court of Appeals, Sixth Circuit.

Cause Argued April 23, 1975.

Decided Sept. 24, 1975.

Rehearing Denied Oct. 30, 1975.

Nathaniel R. Jones, Gen. Counsel, N.A.A.C.P., New York City, Louis R. Lucas, Ratner, Sugarmon & Lucas, Memphis, Tenn., James H. Skiles, Washington, D.C., Leslie I. Gaines, Jr., Gaines & Gaines, Leonard D. Slutz, Cincinnati, Ohio, John A. Dziamba, Williamantic, Conn., J. Harold Flannery, Paul R. Dimond, Washington, D.C., for plaintiffs-appellants.

C. R. Beirne, Beirne, Wirthlin & Manley, Marlene Penny Manes, James Hengelbrok, John A. Lloyd, Jr., Cincinnati, Ohio, James E. Michael, Asst. Atty. Gen., Columbus, Ohio, for defendants-appellees.

Before PHILLIPS, Chief Judge, and WEICK and LIVELY, Circuit Judges.

LIVELY, Circuit Judge.

The court granted this interlocutory appeal by an order appearing at 512 F.2d 719 to consider the important question of the applicability of the doctrine of res judicata to this school desegregation litigation. In Deal v. Cincinnati Board of Education (Deal I), 244 F.Supp. 572, 582 (S.D.Ohio 1965), the district court denied relief upon a finding that the 'plaintiffs have failed to establish a deprivation of rights under the law or under the Constitution of the United States . . .' It had been stipulated that the Cincinnati school system included a number of schools attended almost entirely by Negro pupils, a number attended entirely by white pupils and a number attended by both Negro and white pupils in various percentages. The district court found the Cincinnati school system had been operated on the 'neighborhood plan' and that 'the racial composition of each school is simply a result of the racial composition of the neighborhoods which they serve.' Id. at 580.

Deal I was affirmed on appeal to this court, 369 F.2d 55 (1966), and certiorari was denied by the Supreme Court, 389 U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114 (1967). We held that where the sole limitation imposed by state action on the choice of schools by pupils results from adherence to the neighborhood school concept this limitation does not share 'the arbitrary, invidious characteristics of a racially restrictive system.' 369 F.2d at 60. This court declared that the critical fact determination in an action charging a school board with violation of the rights of minority pupils is whether an existing racial imbalance is intentionally caused by discriminatory practices of the board. A statistical imbalance Though the judgment of the district court in Deal I was affirmed on the finding that the racial imbalance which existed in the Cincinnati school system as a whole was not intentionally caused by the Board, the case was remanded for further findings with respect to claimed discrimination in specific schools and programs, and alleged harmful effects of the racial imbalance that did exist. New findings were made by the district court following remand, and the case was brought to this court once again. In affirming Deal II, Deal v. Board of Education, 419 F.2d 1387 (1969), cert. denied, 402 U.S. 962, 91 S.Ct. 1630, 29 L.Ed.2d 128 (1971), we upheld the findings that there was a high correlation between the distribution of Negro pupils throughout the school system and the general neighborhood residential patterns of the City; that there were topographical and man-made barriers which required irregular boundary lines for various attendance districts; and, specifically, that there was no evidence of racial discrimination by the Cincinnati Board in locating schools, assigning teachers and staff or in failing to furnish equal facilities to different schools.

standing alone is not enough; official discrimination is required to invoke the protection of the Fourteenth Amendment. On this basis we upheld the exclusion by the district court of evidence of alleged discrimination in the public and private housing markets of Cincinnati--acts over which the school board had no control.

The 'subsidiary findings' with respect to particular schools and programs were also upheld. The district court and this court disagreed with the contentions of the plaintiffs-appellants in Deal II that the law had been changed since Deal I by the Supreme Court decisions in Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Raney v. Board of Education of the Gould School District, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968); and Monroe v. Board of Commissioners of the City of Jackson, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). These three cases were viewed as holding that a court may require a school board to discard as inadequate a plan based on 'freedom of choice' or 'free transfer' which has not effectively desegregated a dual school system, and thus as applying only to districts formerly having de jure segregation. 419 F.2d at 1396.

The Deal case was brought as a class action on behalf of ninety-six named 'minor citizens of the State of Ohio' and on behalf of 'thousands of (other) Negro minors within the school district of Cincinnati, who are similarly situated because of race and color.' The present case was instituted as a class action by 'parents of minor children thereof, attending schools in the public school system of the State of Ohio and in the City of Cincinnati.' The action was brought by each plaintiff on behalf of himself and his minor children 'and on behalf of all persons in the State of Ohio similarly situated.' The complaint charges the defendants with engaging in numerous discriminatory acts, practices, policies and customs and seeks declaratory and injunctive relief. Each of the defendants in this action pled, inter alia, that the doctrine of res judicata bars relitigation in this case of the issues adjudicated in Deal I and II. In a 'Motion to Determine the Affirmative Defense' the plaintiffs requested the district court 'to resolve the issue raised by the affirmative defense of res judicata' which had been pled by the defendants.

The district court filed an opinion in response to this motion holding that 'defendants may properly assert the affirmative defense of res judicata in the present case, or, more precisely, that they may assert here the collateral estoppel aspect of that general doctrine.' The accompanying order contained a certification under 28 U.S.C. § 1292(b) for immediate appeal, which this court granted.

The district court considered the question of whether intervening changes had occurred in the law applicable to school While finding that changes in the law since Deal I and II have not been so drastic as to permit a relitigation of the issues decided in those cases, the district court did note 'developments and refinements' in the law since Deal. One such development or refinement was stated by the district court as follows:

desegregation litigation since Deal I and II which would make it inappropriate to permit the defendants to rely on res judicata or collateral estoppel. The court concluded that the basic holdings of Deal I and II have not been reversed or overruled. It was noted that instances where school boards had been charged with the affirmative duty to weed out all vestiges of segregation 'root and branch' involved remedy proceedings where previous actions or proceedings had established constitutional violations. The district court held that the Supreme Court decisions impose no such affirmative duty in the absence of a finding that a board has operated a dual school system or that de jure segregation has been practiced.

And, even where there has been no showing of duality or prior deliberate discrimination, a school board should certainly consider reasonable ways to alleviate racial imbalance and a failure to act in this regard could be part of the cumulative evidence of a possible constitutional violation in certain circumstances.

In its opinion the district court held that the question of segregative intent was critical to the decisions in Deal I and II and that this issue was settled by a finding that the Cincinnati Board had no such intent up to July 26, 1965, when the Deal inquiry ended. Thus, the court held that the inquiry in the present case is limited to the existence of segregative intent in the period since July 26, 1965. The court found that the class of plaintiffs in the present case is substantially the same as in Deal. Noting that an application of strict res judicata principles would bar any further litigation between the parties, the court concluded that the less comprehensive doctrine of collateral estoppel should properly be applied and held that the parties to the present action are foreclosed from 'the relitigation of essential facts or issues which were previously litigated by the parties (or their privies) and judicially determined.'

The district court was clearly correct in finding that Deal I and II continue to have 'vitality.' See Higgins v. Grand Rapids Board of Education, 508 F.2d 779 (6th Cir. 1974). In fact, the plaintiffs in the present case agree in their brief that the 'holding (of Deal) that racial imbalance alone does not justify a school desegregation order by a Federal District Court . . . remains good law . . ..' (Supp. Brief for Appellants at 21.) However, they maintain that certain aspects of Deal have been 'overtaken' by more recent decisions of the Supreme Court and this court. Plaintiffs maintain that to the extent the Deal finding of no segregative intent was based on a 'dominant purpose' test rather than one which looked to the natural and probable effects of the Board's actions and inactions the finding is no longer valid. In this respect plaintiffs rely, inter alia, on this court's opinions in Oliver v. Michigan State Board of Education, 6 Cir., 508 F.2d 178 (1974), ...