Brown v. TOPEKA BD. OF ED. SHAWNEE CTY., KAN., T-316.

• Citation: 671 F. Supp. 1290
• Decision Date: 09 April 1987
• Docket Number: No. T-316.,T-316.
• Parties: Oliver BROWN, et al., Plaintiffs, and Charles and Kimberly Smith, minor children, by their mother and next friend, Linda Brown Smith, et al., Intervening Plaintiffs, v. BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS, et al., Defendants.
• Court: United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas

671 F. Supp. 1290

Oliver BROWN, et al., Plaintiffs, and Charles and Kimberly Smith, minor children, by their mother and next friend, Linda Brown Smith, et al., Intervening Plaintiffs, v. BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS, et al., Defendants.

No. T-316.

United States District Court, D. Kansas.

April 9, 1987.

Richard E. Jones, Charles Scott, Jr., Topeka, Kan., Christopher A. Hansen, New York City, for plaintiffs.

Gary Sebelius, Charles McAtee, Topeka, Kan., for defendant USD # 501.

Dan Biles, Overland Park, Kan., Carl Gallagher, Asst. Atty. Gen., Topeka, Kan., for defendant Members of the State Bd. of Educ.

MEMORANDUM AND ORDER

ROGERS, District Judge.

I. Introduction.

In 1954, the Supreme Court's landmark decision in this case signaled the close of a disgraceful period of de jure segregation in schools of Topeka, Kansas and other parts of the nation. This case has returned to this court for a trial to determine whether the vestiges of de jure segregation have been eliminated. The trial was conducted from October 6, 1986 to October 31, 1986. Post-trial briefs were filed in December, 1986. Reply briefs followed on January 28, 1987. The court is now prepared to issue the following findings of fact and conclusions of law.

II. History of the Case.

This case started in 1951 as a class action challenging a state statute which gave the defendant Board of Education of Topeka, Shawnee County, the power to organize separate schools for black and white elementary students, grades one through six. At that time, there were eighteen white elementary schools and four black elementary schools. White students were assigned to the schools on the basis of neighborhood districts. No transportation was afforded white students. Transportation to the black schools was provided by the Board of Education. Students could attend the black school of their choice. In practical effect, one of the original plaintiffs, Oliver Brown, was suing for the right to have his daughter, Linda, attend a neighborhood white school instead of taking a bus to a black school.

The State of Kansas intervened in the trial to defend the constitutionality of the state legislation authorizing elementary school segregation at the option of school boards in cities of the first class. The trial court, on August 3, 1951, refused to "substitute our own views for the declared law by the Supreme Court" and upheld the constitutionality of state-authorized segregation in Topeka's public elementary schools. 98 F.Supp. 797, 798.

The Supreme Court accepted the trial court's finding that the physical facilities of white and black schools in Topeka and other "tangible" factors were equal, but concluded that "in the field of public education the doctrine of `separate but equal' has no place." 347 U.S. 483, 495, 74 S.Ct. 686, 692, 98 L.Ed. 873 (1954). This finding was based on the conclusion that separating children "from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." 347 U.S. at 494, 74 S.Ct. at 691.

At the close of the Court's opinion, reargument was ordered on the question of relief. One year later, in May 1955, the Court noted that "substantial progress" in the elimination of racial discrimination in public schools had been made in Kansas. 349 U.S. 294, 299, 75 S.Ct. 753, 755, 99 L.Ed. 1083. The case was then remanded to the U.S. District Court of Kansas to fashion and effectuate such an equitable decree as was "necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases." 349 U.S. at 301, 75 S.Ct. at 757. The Court noted that: "Traditionally, equity had been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs." 349 U.S. at 300, 75 S.Ct. at 756.

Following the remand of this case from the Supreme Court, the district court considered a remedial decree submitted by the Board of Education. The "central principle" of the decree, as described by the district court, was that children, regardless of color, would attend the school in the district of their residence. 139 F.Supp. 468, 469 (S.D.Kan.1955). Addressing the concern that some all-black schools remained under the Board's plan, the court stated:

Desegregation does not mean that there must be intermingling of the races in all school districts. It means only that they may not be prevented from intermingling or going to school together because of race or color.

If it is a fact, as we understand it is, with respect to Buchanan School that the district is inhabited entirely by colored students, no violation of any constitutional right results because they are compelled to attend the school in the district in which they live.

It is the conclusion of the court that while complete desegregation has not been accomplished in the Topeka School System, a good faith effort toward that end has been made and that, therefore, the plan adopted by the Board of Education of the City of Topeka be approved as a good faith beginning to bring about complete desegregation.

139 F.Supp. at 470.

No appeal was taken from the district court's order. This case remained inactive until 1979 when a new group of parents with school children in Topeka's public schools were permitted to intervene. The new plaintiffs charge that the mandate to desegregate Topeka's schools has never been completed. After a long process of discovery and the consideration of pretrial motions, the trial of this case was accomplished.

III. The Parties.

The new named plaintiffs in this case are a group of parents with black children attending various schools in Unified School District # 501. In place of the Board of Education of Topeka, Shawnee County, Kansas, Unified School District (U.S.D.) # 501 has been named a defendant. In 1965, by a state statute unifying school districts across Kansas, U.S.D. # 501 was designated as the successor to Topeka Public Schools No. 23, the district served by the original defendant Board of Education. U.S.D. # 501 includes public schools in the same area concerned in the original complaint plus substantial additional territory annexed by the City of Topeka since this case was filed. Prior to the creation of U.S.D. # 501, the boundaries of Topeka Public Schools No. 23 grew with the city limits of Topeka. The boundaries of U.S.D. # 501 and the city limits are no longer coterminous. There are three other school districts in areas outlying Topeka, Kansas. These districts are not parties to this action.

The State Board of Education (SBE) is a party defendant in this case. It was created by state constitutional amendment in 1966. The SBE became an operating body in 1969. It supervises elementary and secondary education in Kansas.

IV. Legal Principles.

Since 1955, the defendant school district and its predecessor have been charged "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 Board, 391 U.S. 430, 437-38, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968). "Each instance of a failure or refusal to fulfill this affirmative duty continues the violation of the Fourteenth Amendment." Columbus Board of Education v. Penick, 443 U.S. 449, 459, 99 S.Ct. 2941, 2947, 61 L.Ed.2d 666 (1979).

Unfortunately, even in 1987, it is not clear what unitariness entails. Note, Allocating the Burden of Proof After A Finding of Unitariness in School Desegregation Litigation, 100 HARV.L.REV. 653, 662 (1987). "The nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation." Milliken v. Bradley, 433 U.S. 267, 280, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977). De facto segregation (segregation caused by private choice) and segregation caused by authorities other than those sued in this case, are not part of the constitutional violation found in 1954. See Keyes v. School District No. 1, 413 U.S. 189, 198, 93 S.Ct. 2686, 2692, 37 L.Ed.2d 548 (1973); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 23, 91 S.Ct. 1267, 1279, 28 L.Ed.2d 554 (1971). Therefore, a unitary school system must be one that has reversed the segregation caused by the school board's dual system in 1954. Dayton Board of Education v. Brinkman, 443 U.S. 526, 538, 99 S.Ct. 2971, 2979, 61 L.Ed.2d 720 (1979) ("Dayton II").

The mixing of students of different races in the schools is probably the most important factor in determining unitariness. (After all, separate but equal schools violate the Constitution.) But, complete racial balance is not required by the Constitution. Swann, supra, 402 U.S. at 24, 91 S.Ct. at 1280; Dayton Board of Education v. Brinkman, 433 U.S. 406, 413 and 417, 97 S.Ct. 2766, 2772 and 2774, 53 L.Ed.2d 851 (1977) ("Dayton I"). Even the existence of a "small number of one-race or virtually one-race schools within a district is not in and of itself the mark of a system that still practices segregation by law." Swann, supra, 402 U.S. at 26, 91 S.Ct. at 1281. Many other factors should be considered as well. Green, supra, 391 U.S. at 435, 88 S.Ct. at 1692 (faculty, staff, transportation, extracurricular activities and facilities); Keyes, supra, 413 U.S. at 196, 213-14, 93 S.Ct. at 2691, 2699-700 (school site location, school size, school renovations and additions, student attendance zones, student assignment and transfer options, mobile classroom units, transportation of students, assignment of faculty and staff, community and school administration attitudes).

Evidence of segregative motive or the absence of such intent is relevant but not controlling in determining unitariness. "The measure of the post-Brown I conduct of a school...