Brown v. Board of Educ. of Topeka, Shawnee County, Kan., 87-1668

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before McKAY, SEYMOUR and BALDOCK; SEYMOUR; BALDOCK
• Citation: 892 F.2d 851
• Parties: 57 Ed. Law Rep. 1167 Oliver BROWN, et al., Plaintiffs, and Charles Smith and Kimberly Smith, Minor Children, By Their Mother And Next Friend, Linda Brown Smith, et al., Intervening Plaintiffs-Appellants, v. BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS, et al., Defendants-Appellees.
• Docket Number: No. 87-1668,87-1668
• Decision Date: 11 December 1989

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892 F.2d 851 57 Ed. Law Rep. 1167 Oliver BROWN, et al., Plaintiffs,
and
Charles Smith and Kimberly Smith, Minor Children, By Their
Mother And Next Friend, Linda Brown Smith, et al.,
Intervening Plaintiffs-Appellants,
v.
BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS, et
al., Defendants-Appellees. No. 87-1668. United States Court of Appeals,
Tenth Circuit. Dec. 11, 1989.
Rehearing and Rehearing En Banc Denied Jan. 29, 1990.

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Christopher A. Hansen (Richard Jones, Wichita, Kan., Charles Scott, Sr., Charles Scott, Jr., Kansas City, Mo., and Joseph Johnson, Topeka, Kan., with him on the

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brief), American Civil Liberties Union Foundation, for plaintiffs-appellants.

Dan Biles, of Gates & Clyde, Overland Park, Kan., Carl Gallagher, Asst. Atty. Gen. (Robert T. Stephan, Atty. Gen. with him on the brief), and K. Gary Sebelius (Ann L. Baker, Charles D. McAtee and Charles N. Henson with him on the brief) of Eidson, Lewis, Porter & Haynes, Topeka, Kan., for defendants-appellees.

Before McKAY, SEYMOUR and BALDOCK, Circuit Judges.

SEYMOUR, Circuit Judge.

"[O]nce you begin the process of segregation, it has its own inertia. It continues on without enforcement." ¹ This comment by one expert on segregation in schools succinctly summarizes the state of affairs in Topeka. As a former de jure segregated school system, Topeka has long labored under the duty to eliminate the consequences of its prior state-imposed separation of races. Brown v. Board of Educ., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). The district court concluded that Topeka has fulfilled that duty, and that the school system is now unitary. Because we are convinced that Topeka has not sufficiently countered the effects of both the momentum of its pre-Brown segregation and its subsequent segregative acts in the 1960s, we reverse. Specifically, we hold that the district court erred in placing the burden on plaintiffs to prove intentional discriminatory conduct rather than according plaintiffs the presumption that current disparities are causally related to past intentional conduct. We are convinced that defendants failed to meet their burden of proving that the effects of this past intentional discrimination have been dissipated. We also reverse the district court's holding that the Topeka school district has not violated Title VI. However, we affirm the court's dismissal of the Governor of the State of Kansas and its ruling that the State Board of Education bears no liability for segregation in Topeka's schools.

I.

LEGAL HISTORY

Prior to 1954, a Kansas statute permitted certain cities to maintain separate schools for white and black children below the high school level. In 1941, however, the Kansas Supreme Court held segregation in Topeka's junior high schools to be unconstitutional. See Graham v. Board of Educ., 153 Kan. 840, 114 P.2d 313 (1941) (separate facilities not equal). Topeka was thus legally permitted to operate segregated schools only at the elementary level. The Topeka Board of Education operated such a system. In 1951, black citizens of Topeka filed a class action challenging the constitutionality of the Kansas law authorizing school segregation. Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I ), followed, beginning a new era of American jurisprudence by bringing an end to the doctrine of "separate but equal" and declaring segregation unconstitutional.

The Topeka Board of Education did not wait for the decision in Brown I before taking steps towards desegregating Topeka's elementary schools. It began that process in 1953 by permitting black students to attend two formerly all-white schools. It then gradually increased the number of schools black students might attend. Accordingly, when the Supreme Court considered the question of the relief

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appropriate in school desegregation cases, it noted that "substantial progress" had already been made in Topeka. Brown v. Board of Educ., 349 U.S. 294, 299, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955) (Brown II ). On remand, the district court criticized one aspect of the Board's desegregation plan but described it overall as "a good faith effort to bring about full desegregation in the Topeka Schools in full compliance with the mandate of the Supreme Court." Brown v. Board of Educ., 139 F.Supp. 468, 470 (D.Kan.1955). The court retained jurisdiction of the case, and the decision was not appealed.

Nineteen years later, in 1974, the Office of Civil Rights (OCR) of the Department of Health, Education, and Welfare (HEW) notified the Topeka school district that it was not in compliance with section 601 of Title VI of the Civil Rights Act of 1964. ² After the Topeka Board of Education failed to adopt a plan designed to remedy the noncomplying conditions identified by OCR, HEW began administrative enforcement proceedings against the Topeka school district. The Board filed suit in federal court and obtained a preliminary injunction against the administrative proceeding on the ground that the district court's 1955 decision was a final order, and that the school district was still operating under that court order and still subject to the court's jurisdiction. HEW was thereby precluded from taking administrative action. See generally Brown v. Board of Educ., 84 F.R.D. 383, 390-91 (D.Kan.1979). In 1976, the Board submitted a plan acceptable to HEW, and both the administrative proceeding and the suit in federal court were dismissed. The Board implemented the plan over the next five years.

In 1979, a group of black parents and children sought to intervene in Brown as additional named plaintiffs on the ground that they were members of the original class and that the original named plaintiffs no longer had a sufficient interest in the matter to represent their interests. The intervenors asserted that Topeka has failed to desegregate its schools in compliance with the Supreme Court's mandate, and that the Topeka school district currently maintains and operates a racially segregated school system. Their request to intervene was granted. ³ See Brown, 84 F.R.D. 383. A long discovery and motion stage followed the granting of the intervenors' motion.

Trial took place in October 1986. The court found the Topeka school district to be an integrated, unitary school system. Brown v. Board of Educ., 671 F.Supp. 1290 (D.Kan.1987). The court also held that the Topeka school district had not violated Title VI of the Civil Rights Act of 1964, dismissed the Governor of Kansas from the case, and found that the State Board of Education bore no liability for racial conditions in the school district. This appeal followed.

II.

BRIEF FACTUAL HISTORY

A. Population Change

In 1950, Topeka's population was approximately 10% black. While Topeka's population grew significantly until 1970 and then dropped, the black percentage of the population remained approximately the same. The Hispanic population of Topeka has been slightly less than 5% since 1970. Other minorities make up less than 1.5% of the population.

The distribution of Topeka's population has changed more significantly than its composition. In general, the outer parts of Topeka, particularly on the western side, have grown considerably in population, while the inner city has declined. Until

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recently, the western side of Topeka was almost exclusively white. The black population of Topeka was concentrated in a few areas in the center of the city in the 1950s; it has since spread widely throughout the eastern part of the city and has gradually begun to move into the western side of Topeka.

The percentage of black and minority children in the Topeka schools has long been higher than the percentage of blacks and minorities in the Topeka population as a whole and has risen over time. In 1952, black students constituted 8.4% of the total number of students in Topeka. By 1966, the percentage of black students in the Topeka school district was 11.6% and the percentage of minority students was 16.0%. In 1975, black students constituted 14.7%, and minority students 20.9%, of the school population. The latest figures used at trial, those for the 1985 school year, showed 18.4% black and 25.95% minority children in the system.

B. Elementary Schools

In 1951, four Topeka elementary schools were reserved for black children, Buchanan, McKinley, Monroe, and Washington. Eighteen elementary schools educated white children. Black children were bused to their schools; white children attended neighborhood schools. 671 F.Supp. at 1291. Under the four-step plan approved by the district court in 1955, all elementary schools were to be opened by September of 1956 to black and white children under a neighborhood school policy. Id. at 1293. As a result of the new neighborhood school policy, three schools remained all- or virtually all-black (Buchanan (100%), Monroe (100%), Washington (99.4%)), and two others became more than 20% black in a school district with a black elementary student population of less than 10%. ⁴ McKinley was closed.

During the late 1950s, the school district acquired by annexation the Avondale (outer Topeka, south) and Highland Park (middle and outer Topeka, east) school districts as well as other territory on the edges of the district. Existing schools within the acquired area were either primarily white or primarily black. As school enrollments grew and the population began to shift, the school district began to close elementary schools in the inner part of the city and open them in the rapidly growing outer part of the city. Two of the closed schools were former de jure black schools (Buchanan, and Washington); another de jure school (McKinley) had already been closed. The new schools were built in the newly acquired white areas and opened with all or virtually all white students.

Racial statistics were not kept in an organized fashion from 1956 to 1966. In 1966, the school district...