Kelly v. Guinn, 71-2332
| Citation | 456 F.2d 100 |
| Decision Date | 03 April 1972 |
| Docket Number | No. 71-2332,71-2340 and 71-2422.,71-2332 |
| Parties | Herbert E. KELLY, Sr., et al., Plaintiffs-Appellees, v. Kenneth GUINN, Superintendent of Schools, Clark County School District, et al., Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
COPYRIGHT MATERIAL OMITTED
Robert L. Petroni (argued), Las Vegas, Nev., for appellant in Nos. 71-2332 and 71-2340.
Norman J. Chachkin (argued), Jack Greenberg, New York City, Frank A. Schreck (argued), Charles L. Kellar, Las Vegas, Nev., for appellee in Nos. 71-2332 and 71-2340.
Norman J. Chachkin (argued), Jack Greenberg, New York City, Charles L. Kellar, Las Vegas, Nev., for appellant in No. 71-2422.
Robert L. Petroni (argued), Frank A. Schreck (argued), Las Vegas, Nev., for appellee in No. 71-2422.
Before BROWNING and KILKENNY, Circuit Judges, and JAMESON,* District Judge.
The district court held that elementary schools in the Clark County (Nevada) School District, which includes the City of Las Vegas, were racially segregated. The court ordered implementation of a so-called "Sixth Grade Center Plan" to desegregate the schools. Defendant school officials appeal, asserting that no constitutional violation was established. Plaintiffs cross-appeal, contending that the "Sixth Grade Center Plan" is inadequate, and that the district court erred in failing to award attorneys' fees and costs. We affirm on both appeals.
At the outset we emphasize that the individual defendants are sued only in their representative capacity as incumbent officials of the Clark County School District. The policies which we hold violative of the Constitution were initiated and implemented primarily by their predecessors. In the words of the district court:
The district court also stated that aspects of defendants' efforts to eliminate segregation "are useful and disclose an enlightened attitude . . . regarding the social problems inherent in segregated schools."
We agree with this appraisal.
This is a class action under 42 U.S.C. §§ 1981 and 1983 (1964), alleging violation of the Fifth and Fourteenth Amendments. It was filed May 13, 1968, on behalf of the named plaintiffs and other residents of Clark County. The Superintendent of Schools and the members of the Board of Trustees of the Clark County School District were made defendants. The complaint alleged that the policies and practices of the school district "obligate the great majority of the Negro children to attend segregated schools in the area of Las Vegas known as the West Side." Equitable relief was sought.
Trial was held October 14, 15, and 16, 1968. Upon completion of the testimony, the district court orally announced its conclusion that elementary schools in Las Vegas were racially segregated. The court instructed school officials to prepare and submit an integration plan.
On April 10, 1969, the school district submitted "An Action Plan for Integration of the Six Westside Elementary Schools," referred to as the "freedom of choice" plan. It permitted black students to transfer to predominately white schools elsewhere in the district, and permitted white students to transfer from these predominately white schools to a "prestige" school established within the Westside area. A variety of special programs and a low teacher-pupil ratio were offered to induce white students to transfer to the "prestige" school.
On June 23, 1969, the court entered an order approving the "freedom of choice" plan for the school year beginning September 1969. The order required school officials to file a progress report by March 1, 1970. The required report was filed. Plaintiffs filed a response, and a hearing regarding the effectiveness of the "freedom of choice" plan was held on August 17 and 19, 1970.
On December 2, 1970, the court entered its judgment and decree.1 The court concluded that the "freedom of choice" plan had failed to integrate elementary schools in the Clark County School District, and would fail to do so in the future. The court ordered the school district to adopt and effectuate an integration plan for the school year beginning September 1971 that would result in a black student enrollment of no more than 50 per cent in any grade level in any elementary school in the district.
The school district appealed from the December 2, 1970, judgment. Meanwhile, however, pursuant to the judgment, the school district prepared and submitted a "Sixth Grade Center Plan." Under this plan each Westside elementary school was to be clustered with a group of white elementary schools, with the Westside school serving as a sixth grade attendance center for the group.
A number of post-judgment motions were filed. The school district filed a motion for reconsideration of the judgment based upon the subsequent decision in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), and sought a stay pending appeal. On their part, plaintiffs filed a motion to amend the "Sixth Grade Center Plan," and to stay its implementation. They also filed a motion for allowance of attorneys' fees and costs.
We remanded the case to the district court to permit it to consider these motions. On June 11, 1971, the district court granted the school district's motion to stay the December 2 judgment pending appeal, and denied the remaining motions.
The school district appealed the denial of their motion to reconsider the judgment. Plaintiffs cross-appealed from the denial of their motion to modify the "Sixth Grade Center Plan," and from the denial of their motion for attorneys' fees and costs.
Plaintiffs also appealed the granting of the school board's motion for stay pending appeal, and petitioned this court to vacate the stay. At our request the district court entered special findings of fact relevant to this application. On August 18, 1971, we denied plaintiffs' application to vacate the district court's stay, and ordered the various appeals expedited.
In 1954, when Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, was decided, there were only three schools in the Westside area. All had racially mixed enrollments. After 1954 the population of Westside increased rapidly and became increasingly black in racial composition.
In 1956, to avoid racial segregation in junior and senior high schools, the school district announced that no new junior and senior high schools would be built in Westside. Thereafter, Westside pupils were bused to junior and senior high schools outside the area. At these grade levels the Clark County school system was, and is, completely integrated.
In contrast, between 1956 and 1966, four new elementary schools were constructed in Westside and one of the two existing schools was extensively renovated to accommodate additional students. The first of the four new elementary schools opened the same year the school district decided to open no new secondary schools in the area to avoid racial segregation at those grade levels. When the complaint was filed in 1968, black student enrollment in each of the six Westside elementary schools exceeded 97 per cent.
During the same period, in 1965, the school district closed two predominately white schools on the fringe of Westside, between black and white neighborhoods. If these schools had not been closed, their enrollment would now be about half white students and half black.2 At about the same time, the school district built a new elementary school in a more distant white residential area.3
When the complaint was filed, 102 of the 1359 teachers in Clark County elementary schools were black. Of the 102 black teachers, 83 were assigned to Westside schools, and only 19 to schools outside the area. These figures appear to be representative of prior years.4
Defendants argue that under Swann v. Charlotte-Mecklenburg Board of Education, supra, 402 U.S. 1, 91 S.Ct. 1267, a school district is required to integrate racially imbalanced schools only if the school district caused the racial imbalance. Defendants contend that the segregated conditions in Clark County's elementary schools do not result from discriminatory acts or omissions of the school district. They maintain that the school district is simply adhering to a neighborhood school policy under which children are assigned to schools nearest their homes. They claim that whatever imbalance exists stems not from any official action of the school district but rather from the racial composition of the Westside population, which is almost completely black.
Defendants point out that the Swann case involved a school district "having a long history of maintaining two sets of schools in a single school system deliberately operated to carry out a governmental policy to separate pupils in schools solely on the basis of race." 402 U.S. at 5-6, 91 S.Ct. at 1271. Defendants claim that there has been no finding that the segregated condition in Clark County elementary schools are a result of such official action. Therefore, since no constitutional violation by the school district has been established, and since, under Swann, there is no legal requirement that racial balance exist in every school (see 402 U.S. at 24, 91 S.Ct. 1267), they conclude that they have no affirmative duty to integrate Clark County schools.
We agree with defendants that...
To continue reading
Request your trial
-
NAACP v. Wilmington Medical Center, Inc.
...v. Kerrigan, 530 F.2d 401 (C.A. 1), cert. denied sub nom. Doherty v. Morgan, 426 U.S. 935, 96 S.Ct. 2649, 49 L.Ed.2d 386 (1976); Kelly v. Guinn, 456 F.2d 100 (C.A. 9), cert. denied, 413 U.S. 919, 93 S.Ct. 3408, 37 L.Ed.2d 1041 (1972). Implicit in this argument, of course, is the view that a......
-
Liddell v. State of Mo.
...Milliken, 484 F.2d 215, 243 (6th Cir.), rev'd on other grounds, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974); Kelley v. Guinn, 456 F.2d 100, 108-109 (9th Cir.1972), cert. denied, 413 U.S. 919, 93 S.Ct. 3048, 37 L.Ed.2d 1041 (1973). Yet the criticisms in these cases generally apply to......
-
Morgan v. Kerrigan
...be outside the pattern established by Yarbrough v. Hulbert-West Memphis School Dist. No. 4, 457 F.2d 333 (8th Cir. 1972); Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972), and Booker v. Special School Dist. No. 1, 351 F.Supp. 799 Moreover, the court apparently had available to it new data about......
-
Oliver v. Kalamazoo Board of Education
...U.S. 20-21, 91 S.Ct. 1278-1279. See also Keyes, supra, 413 U.S. at 199, 93 S.Ct. at 2693; Davis, supra, 443 F. 2d at 576; Kelley v. Guinn, 456 F.2d 100 (9th Cir. 1972). (Emphasis The Board alleges that for many decades before the adoption of the May 7, 1971 plan, it exercised its extensive ......