Deal v. Cincinnati Board of Education

• Decision Date: 09 December 1969
• Docket Number: No. 19210.,19210.
• Citation: 419 F.2d 1387
• Parties: Tina DEAL, a minor by Frank L. Deal, her father and next friend, et al., Plaintiffs-Appellants, v. The CINCINNATI BOARD OF EDUCATION et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

419 F.2d 1387 (1969)

Tina DEAL, a minor by Frank L. Deal, her father and next friend, et al., Plaintiffs-Appellants, v. The CINCINNATI BOARD OF EDUCATION et al., Defendants-Appellees.

No. 19210.

United States Court of Appeals Sixth Circuit.

December 9, 1969.

Norris Muldrow, Cincinnati, Ohio (Robert L. Carter, Lewis M. Steel, Barbara Morris, New York City, on the brief), for appellants.

C. R. Beirne, Cincinnati, Ohio (William A. McClain, City Sol., Cincinnati, Ohio, Robert E. Manley, Beirne, Wirthlin & Manley, Cincinnati, Ohio, on the briefs), for appellees.

Before PHILLIPS, Chief Judge, and WEICK and O'SULLIVAN, Circuit Judges.

WEICK, Circuit Judge.

In the first appeal which involved a claim of alleged de facto rather than de jure segregation, we affirmed the judgment of the District Court on the issue of racial imbalance, holding that the Board of Education was not required by the Constitution to bus Negro or white children out of their neighborhoods, or to transfer classes, for the sole purpose of alleviating racial imbalance which was not caused by any act of discrimination on the part of the Board but resulted from the racial concentrations in the neighborhoods in which the schools were located, and further, that the Board had no like duty to select new school sites solely in furtherance of such a purpose. We further held that the findings of fact adopted by the District Court with respect to racial discrimination in specific schools and programs were too general to afford an adequate basis for review of those issues. We remanded the case to the District Court —

"* * * for further findings on the issues of claimed discrimination in specific schools and programs and claimed harm to Negro students, allegedly caused by racially imbalanced schools, and for the taking of such additional relevant evidence as either party may offer."

Deal v. Cincinnati Bd. of Educ., 369 F.2d 55 (6th Cir. 1966), affirming 244 F. Supp. 572, cert. denied, 389 U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114 (1967).

On the remand Circuit Judge Peck sat as District Judge by designation because he had presided at the original trial. He held a pretrial conference to consider the programming of the proceedings on the remand. Plaintiffs took the position that new evidence of occurrences which had transpired since the first trial should be introduced. The Board contended that on the remand the issue was limited solely to adoption of supplementary findings of fact with respect to claimed discrimination in specific schools and programs and claimed harm to Negro students, allegedly caused by racially imbalanced schools, which could be determined from the original record.

Judge Peck indicated that although he had doubt as to the admissibility of evidence of subsequent events under the terms of the remand, he suggested, and it was agreed by the parties, that plaintiffs set forth their claims formally either by tendering a second amended compaint or by seeking pertinent information by discovery procedures so that the matter could be adjudicated by the Court.

However, after the lapse of six months, and because the plaintiffs failed to take any action whatsoever, the Judge notified all counsel that he interpreted plaintiffs' inaction as an abandonment of any intention to supplement or attempt to supplement the record with additional evidence, and he invited counsel on both sides to submit suggested supplemental findings, which they did simultaneously. On September 30, 1968, Judge Peck filed a memorandum opinion and subsidiary findings of fact, a copy of which is appended hereto.¹

The plaintiffs filed a notice of appeal, which stated in part:

"* * * Plaintiffs above named, hereby appeal from the memorandum and subsidiary findings of fact entered September 30, 1968, affirming the original judgment rendered on the 9th day of August, 1968."

At the outset, appellees stated in their brief:

"There is a question as to whether or not this appeal was properly taken, because the District Court did not file an appealable order on September 30, 1968, and the only order from which the appeal is being taken was entered on the 9th day of August 1965. This order already has been reviewed. ^*

It is not understandable why appellants did not ask the District Judge to enter judgment on his memorandum and subsidiary findings of fact, as the entry of a judgment thereon would have eliminated any question about our jurisdiction.

If the District Court had not entered judgment on its original opinion and findings, we would have no hesitancy in dismissing this appeal for lack of jurisdiction. But judgment was entered by the District Court on its original findings, and in the appeal which followed we did not disturb the judgment but affirmed it on the issue of racial imbalance and remanded only for subsidiary findings to aid us in the review of other issues with respect to discrimination in specific schools and programs, which we had not decided. Although we did not expressly retain jurisdiction, it could be argued that we did so by implication.

The District Court has completely complied with our order of remand, and the record and files have been docketed in our Court under the number of a new appeal, although they could have been filed in the first appeal.

The parties have briefed the issues on the merits. No motion to dismiss the appeal has been made. We will therefore consider and decide the issues left undecided in the original appeal. In so doing, we eliminate any further delay of this litigation, which already has been pending too long in all of the federal courts.

Upon the remand, the District Court properly made findings only on the specific issues referred to him in the mandate of this Court. Appellants had urged that the Court reconsider the entire case and adopt conclusions of law inconsistent with our opinion in the first appeal. This it declined to do.

The basic issue in the case was whether the Board had a constitutional duty to establish a program to balance the races in the Cincinnati School System. We dealt with this issue extensively in our opinion in the first appeal and held that there was no such duty where the imbalance had resulted from racial concentrations in the school neighborhoods and not from any act of discrimination on the part of the Board. We were of the belief that the Constitution prohibited enforced segregation but did not require forced integration. 369 F.2d 55. In so holding we followed appellate decisions in the Tenth and Seventh Circuits. Downs v. Bd. of Educ. of Kansas City, 336 F.2d 988 (10th Cir. 1964), cert. denied, 380 U.S. 914, 85 S.Ct. 898, 13 L. Ed.2d 800 (1965); Bell v. School City of Gary, 324 F.2d 209 (7th Cir. 1963), cert. denied, 377 U.S. 924, 84 S.Ct. 1223, 12 L.Ed.2d 216 (1964). See also decisions of the Second and First Circuits in Offermann v. Nitkowski, 378 F.2d 22 (2d Cir. 1967), and Springfield School Committee v. Barksdale, 348 F.2d 261 (1st Cir. 1965); cf., Mapp v. Board of Education of Chattanooga, Tenn., 373 F.2d 75, 78 (6th Cir. 1967).

Appellants petitioned the Supreme Court for certiorari in the first appeal and it was denied. Certiorari was also denied in Downs and Bell, supra. The denial of certiorari in the present case ought to constitute our opinion in the first appeal as the law of the case, but appellants contend that the law has been changed by the recent decisions of the Supreme Court in Green v. County School Bd. of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Raney v. Bd. of Educ. of Gould School District, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968); Monroe v. Bd. of Comm'rs of City of Jackson, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968).

In our opinion, these three decisions did not change any law applicable to our case and appellants' reliance on them is misplaced. The gist of the holdings in these cases was that in desegregating a dual school system, a plan utilizing "freedom of choice" or a variant "free transfer" is not an end in itself and would be discarded where it did not bring about the desired result.

On the other hand, our case involves the operation of a long-established unitary non-racial school system — just schools where Negro as well as white children may attend in the district of their residence. There is not an iota of evidence in this record where any of the plaintiffs or any of the class which they represent, was denied admission to a school in the district of his residence.

It is the contention of appellants that the Board owed them a duty to bus white and Negro children away from the districts of their residences in order that the racial complexion would be balanced in each of the many public schools in Cincinnati. It is submitted that the Constitution imposes no such duty.² Appellants are not the only children who have constitutional rights. There are Negro, as well as white, children who may not want to be bussed away from the school districts of their residences, and they have just as much right to attend school in the area where they live. They ought not to be forced against their will to travel out of their neighborhoods in order to mix the races.^2a

It was more than eighty-two years ago that the Legislature of Ohio abolished segregation in the public schools. 84 Ohio Laws 34, enacted February 22, 1887. The Supreme Court of Ohio upheld and enforced the law in the following year. Board of Educ. v. State, 45 Ohio St. 555, 16 N.E. 373 (1888). After enactment of this statute, the Cincinnati Board of Education promptly discontinued compulsory segregation in its school system, and ever since that time Negro children have had the opportunity to attend the neighborhood schools in Cincinnati on the same basis as white children living in the same locality. In the 60th Annual Report of the Public Schools of Cincinnati for the School Year ending August 31, 1889, it is stated:

"An increasing number of colored pupils are attending

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