Brown v. Board of Educ. of Topeka, Shawnee County, Kan.

• Decision Date: 27 October 1992
• Docket Number: No. 87-1668,87-1668
• Citation: 978 F.2d 585
• Parties: , 78 Ed. Law Rep. 292 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.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 585

978 F.2d 585

61 USLW 2279, 78 Ed. Law Rep. 292

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.

Oct. 27, 1992.

Rehearing Denied Jan. 28, 1993.

Christopher A. Hansen (Richard Jones, Charles Scott, Jr., and Joseph Johnson with him, on the brief), American Civil Liberties Union Foundation, for plaintiffs-appellants.

Dan Biles, of Gates & Clyde, Overland Park, Kan., Carl Gallagher, Asst. Atty. Gen., Topeka, Kan., and K. Gary Sebelius (Anne L. Baker and Charles N. Henson with him, on the brief) of Davis, Wright, Unrein, Hummer, and McAllister, Topeka, Kan., for defendants-appellees.

Before MCKAY, SEYMOUR, and BALDOCK, Circuit Judges.

SEYMOUR, Circuit Judge.

More than three years ago, we reversed the district court's decision in this landmark school desegregation case. Brown v. Board of Educ., 892 F.2d 851 (10th Cir.1989). The Supreme Court recently vacated our lengthy opinion, Board of Educ. v. Brown, --- U.S. ----, 112 S.Ct. 1657, 118 L.Ed.2d 381 (1992), remanding for further consideration in light of Board of Educ. v. Dowell, 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991), and Freeman v. Pitts, --- U.S. ----, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992). After oral argument and due consideration of Dowell and Freeman, we reinstate our prior opinion in full, with the additions set out below. ¹

I.

On remand we are required to determine whether recent Supreme Court authority has altered the landscape of desegregation law so as to change our prior opinion. We reversed the district court in part because it "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." ² Brown, 892 F.2d at 854. In its opinion, the district court wrote that, "after 30 years, one cannot assume that the racial imbalance which remains is a vestige of the de jure system or other illegal segregation." Brown v. Board of Educ., 671 F.Supp. 1290, 1297 (D.Kan.1987). In Freeman, the Supreme Court said simply: "The school district bears the burden of showing that any current [racial] imbalance is not traceable, in a proximate way, to the prior violation." --- U.S. at ----, 112 S.Ct. at 1447 (emphasis added). See also Lee v. Etowah County Bd. of Educ., 963 F.2d 1416, 1425 (11th Cir.1992). Freeman thus explicitly reaffirms one of the principles that required our reversal of the district court. The Court further held that a court may relinquish supervisory control over a former de jure school system in an incremental manner, Freeman, --- U.S. at ----, 112 S.Ct. at 1445.

Dowell underscored the equitable nature of the desegregation decree, and indicated that the term "unitary" has no magical import. 498 U.S. at ---- - ----, 111 S.Ct. at 635-36. Our prior opinion does not treat unitariness as a rigid concept; it instead insists that a school district seeking freedom from continued judicial oversight must prove that any current racial imbalance is not connected to the prior de jure system. Dowell does not mark a retreat from the principle that "[t]he measure of any desegregation plan is its effectiveness." Davis v. School Comm'rs, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971); see also Freeman, --- U.S. at ----, 112 S.Ct. at 1446. We previously applied this test in assessing the district court's unitariness ³ finding under the clearly erroneous standard. Brown, 892 F.2d at 868.

The Supreme Court's cases charge school boards that once operated school systems segregated by law "with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." Green v. County School Bd., 391 U.S. 430, 437-38, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968). After an initial finding of liability, the district court may enforce this duty "without any new proof of a constitutional violation." Freeman, --- U.S. at ----, 112 S.Ct. at 1456 (Blackmun, J. concurring). Here, the question is not whether plaintiffs successfully established in the 1986 trial that the school system operated in a manner inconsistent with the constitutional guarantee of equal protection; that question was answered in 1955. Instead, as we made clear in our initial opinion, the question is whether Topeka has successfully discharged the duty imposed by the Constitution to eliminate the vestiges of de jure segregation.

Both Dowell and Freeman address the means by which a school system may be discharged from the active supervision of the courts. In Dowell, the Court required the district court to consider "whether the Board had complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination had been eliminated to the extent practicable." ⁴ Dowell, 498 U.S. at ----, 111 S.Ct. at 638; Freeman, --- U.S. at ---- - ----, 112 S.Ct. at 1449-50. Dowell reaffirmed Green's requirement that a court considering whether the vestiges of past segregation have been eliminated must look to "every facet of school operations." 498 U.S. at ----, 111 S.Ct. at 638 (quoting Green, 391 U.S. at 435, 88 S.Ct. at 1692).

Freeman expanded on this requirement by explicitly stating that "[a] federal court in a school desegregation case has the discretion to order an incremental or partial withdrawal of its supervision and control," --- U.S. at ---- - ----, 112 S.Ct. at 1444-45, thereby allowing a school system to achieve compliance in one facet of its operations before it has fulfilled the whole of its affirmative duty. Neither Dowell nor Freeman suggests that the plaintiffs in the remedial phase of school desegregation litigation must make a new showing of discriminatory intent in order to obtain relief from a current condition of segregation. The district court here wrongly required the plaintiffs to make such a showing. See Brown, 671 F.Supp. at 1295 ("Plaintiffs have the burden of proving that illegal segregation exists in U.S.D. # 501.").

"Proper resolution of any desegregation case turns on a careful assessment of its facts." Freeman, --- U.S. at ----, 112 S.Ct. at 1437. The facts underlying this case are far different than those before the Supreme Court in either Dowell or Freeman. In Oklahoma City, the school board adopted a comprehensive plan to desegregate the school system in 1972 and operated under that plan for many years. See Dowell v. Board of Educ., 890 F.2d 1483, 1486-87 (10th Cir.1989), rev'd, 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991). In DeKalb County, the district court had approved a plan to achieve maximum practicable desegregation. Freeman, --- U.S. at ----, 112 S.Ct. at 1447. Subsequent to the implementation of the plan, demographic changes resulted in largely segregated residential neighborhoods. At the same time, the population of DeKalb County increased dramatically. See id. --- U.S. at ----, 112 S.Ct. at 1438-40. In the face of these changes, the school system aggressively employed a Minority-to-Majority transfer program and several magnet school programs in an effort to maintain some level of racial balance in student assignment. Id. --- U.S. at ----, 112 S.Ct. at 1440. In Topeka, in contrast, the school board did very little to desegregate its student assignment practices. ⁵ See Brown, 892 F.2d at 874. Fortunately, increasing residential integration actually helped to decrease racial segregation in some of the city's neighborhood schools. Unlike DeKalb County, the best that can be said of Topeka's efforts is this: "The district has not bucked the demographic forces that have improved the racial balance of schools." Brown, 671 F.Supp. at 1309 (emphasis added). ⁶

"Our post-Green cases provide that, once state-enforced school segregation is shown to have existed in a jurisdiction in 1954, there arises a presumption, ... that any current racial imbalance is the product of that violation." Freeman, --- U.S. ----, 112 S.Ct. at 1453 (Scalia, J. concurring); see United States v. Fordice, --- U.S. ----, ----, 112 S.Ct. 2727, 2735, 120 L.Ed.2d 575 (1992). This is the presumption that the district court failed to accord plaintiffs in this case. See Brown, 892 F.2d at 867-68. At the time of trial, the Topeka school system operated a number of racially identifiable schools. See id. at 870. In the continuing remedial phase of this litigation, then, the district court must impose upon defendants the substantial burden of demonstrating the absence of a causal connection between any current condition of segregation and the prior de jure system. Until the school district meets this burden, the district court must retain some measure of supervision over the school system. ⁷

In this case, the district court disregarded Topeka's history of inaction, observing: "At any time, more could have been done to achieve racial balance in the schools. But, it begs the issue of this case to argue that racial balancing must be done today because it was not done yesterday." Brown, 671 F.Supp. at 1309. To expect the lingering effects of legally mandated separation to magically dissolve with as little effort as the Topeka school district exerted, see Brown 892 F.2d at 874, is to expect too much. "[S]tubborn facts of history linger and persist," Freeman, --- U.S. at ----, 112 S.Ct. at 1448, and, if left unattended, they fester. The Constitution does not permit the courts to ignore today's reality because it is temporally distant from the initial finding that the school system was operated in violation of the constitutional rights of its students. Temporal distance matters only to the extent that changes across that...