Keyes v. Congress of Hispanic Educators

• Decision Date: 12 September 1995
• Docket Number: Civ. A. No. C-1499 (69-M-1499).
• Citation: 902 F. Supp. 1274
• Parties: Wilfred KEYES, et al., Plaintiffs, v. CONGRESS OF HISPANIC EDUCATORS, et al., Plaintiff-Intervenors, v. SCHOOL DISTRICT NO. 1, DENVER, COLORADO, et al., Defendants, and The State of Colorado ex rel. Gale A. Norton, Defendant-Intervenor.
• Court: U.S. District Court — District of Colorado

902 F. Supp. 1274

Wilfred KEYES, et al., Plaintiffs, v. CONGRESS OF HISPANIC EDUCATORS, et al., Plaintiff-Intervenors, v. SCHOOL DISTRICT NO. 1, DENVER, COLORADO, et al., Defendants, and The State of Colorado ex rel. Gale A. Norton, Defendant-Intervenor.

Civ. A. No. C-1499 (69-M-1499).

United States District Court, D. Colorado.

September 12, 1995.

Gordon G. Greiner, Holland & Hart, Denver, CO, Norman Chachkin, New York City, for Plaintiff.

Albert H. Kauffman, Mexican American Legal Defense and Educational Fund, San Antonio, TX, Peter Roos, San Francisco, CA, for Plaintiff-Intervenors.

Michael H. Jackson, Semple & Jackson, Denver, CO, Phil C. Neal, Neal Gerber & Eisenberg, Chicago, IL, for Defendant.

William E. Thro, Assistant Attorney General, State of Colorado, Denver, CO, for Defendant-Intervenor.

MEMORANDUM OPINION AND ORDER

MATSCH, Chief Judge.

SUMMARY OF DECISION

Pursuant to the following detailed findings of fact and the guidance of recent United States Supreme Court opinions, it is now determined that defendant School District No. 1, Denver, Colorado, ("District") has complied in good faith with the desegregation decrees entered in this case and that the vestiges of past discrimination by the defendant have been eliminated to the extent practicable. The defendant's second motion to terminate jurisdiction is granted and full authority is restored to the District's Board of Education for governance of Denver's schools under applicable laws of the State of Colorado and the United States. This civil action is, therefore, closed with a final order of dismissal. The allegations of failure to comply with the Language Rights Consent Decree of August 17, 1984, made by plaintiff-intervenor Congress of Hispanic Educators, are removed from this civil action and will be dealt with as a separate and independent proceeding designated as Civil Action No. 95-M-2313, with its own jurisdictional base under the Equal Educational Opportunities Act of 1974, codified in 20 U.S.C. §§ 1701-1721 and particularly §§ 1703(f) and 1708.

The District filed its second motion to terminate jurisdiction on January 31, 1992. The pre-trial statements included challenges to the constitutionality of Article IX, Section 8 of the Colorado Constitution, commonly called the "Busing Clause." Upon receipt of notice, as required by 28 U.S.C. § 2403(b), the Attorney General of the State of Colorado moved to intervene as a defendant on a cross-claim and counterclaim for declaratory judgment affirming the validity of that provision. The motion to intervene was granted. The plaintiffs, plaintiff-intervenors and defendant District seek a judgment declaring the Busing Clause to be a violation of the Fourteenth Amendment of the United States Constitution. They contend that this state restriction adversely affects the District's ability to implement Resolutions 2233 and 2314, as set out in a stipulation of facts filed July 29, 1994. By adopting those resolutions, the District's Board of Education has resolved to make future changes in the current pupil assignment plan only through specified procedures after termination of this court's jurisdiction. A decision on the Busing Clause issue is necessary to guide the District upon termination of this court's jurisdiction.

In relevant part, Article IX, Section 8 of the Colorado Constitution provides:

No sectarian tenets or doctrines shall ever be taught in the public school, nor shall any distinction or classification of pupils be made on account of race or color, nor shall any pupil be assigned or transported to any public educational institution for the purpose of achieving racial balance.

On its face this language prohibits the use of race or color as a basis for treating students differently and precludes the adoption of "racial balance" as the goal in making pupil assignments. As explained hereafter, the Busing Clause is not inconsistent with the Fourteenth Amendment of the U.S. Constitution.

HISTORY

From 1960 to 1969, the District's Board of Education pursued a deliberate policy of racial segregation in Denver's schools. The Board actively attempted to contain what was then called the "Negro" population by keeping black families out of the Park Hill area, a residential neighborhood east of Colorado Boulevard. As a result, segregation in Denver schools was de jure, meaning that it was created by the deliberate acts of the governing authority. Some Board members tried to reverse these discriminatory practices, but their efforts to integrate some of the schools were repudiated in a school board election in May, 1969. This lawsuit began in June, 1969, when the original plaintiffs, children in the Denver Public Schools, challenged the constitutionality of the Board's discriminatory acts. The case has had a long history, and has been the subject of many court opinions.¹

The District's obligation in this case has always been to remove the effects of its own past discriminatory policies. No school district has responsibility under the Constitution to eradicate the effects of racial discrimination by other agencies of government or in the larger community. Milliken v. Bradley, 418 U.S. 717, 738-45, 94 S.Ct. 3112, 3124, 41 L.Ed.2d 1069 (1974). The United States Constitution does not burden public education with remedying all of the disadvantages experienced by racial or ethnic groups in this nation's history. There is hope that education will enlighten and energize societal efforts to relieve and redress injustice and unfairness, but the courts have neither the competence nor the power to compel public schools to make that effort.

Determining whether the District has fulfilled its constitutional obligation requires revisiting earlier decisions in this case to recall the particular discriminatory conduct that caused court intervention. The case was originally assigned to Judge William E. Doyle, who discussed the history of the District's discriminatory policies in the following passage, taken from an early Keyes opinion:

Prior to 1950, the Negro population of Denver was concentrated in a portion of the city known as "Five Points," which is located west of Park Hill. Beginning in 1950, the Negro population began an eastward migration which, by 1960, had reached Colorado Boulevard, a natural dividing line. Since 1960, this migration has extended east of Colorado Boulevard into Park Hill....

Barrett Elementary School was opened in 1960 at East 29th Avenue between Jackson Street and Colorado Boulevard. The site selected for Barrett, along with the size of the school and its established boundary lines insured that it would be a segregated school from the date of its opening....

Between 1960 and 1965, several boundary changes were made in the Park Hill area and mobile units were employed in some Park Hill schools to relieve overcrowding. The effect of these various acts on the racial composition of Park Hill schools was identical. Each tended to isolate and concentrate Negro students in those schools which had become segregated in the wake of Negro population influx into Park Hill while maintaining for as long as possible the Anglo status of those Park Hill schools which still remained predominantly white....

In 1962 a Special Study Committee on Equality of Educational Opportunity in the Denver Public Schools (Voorhees Committee) was created. Following a thorough study, the Committee recommended that the School Board consider racial, ethnic and socioeconomic factors in establishing boundaries and locating new schools, and that boundaries be set so as to establish heterogeneous school communities. Pursuant to this recommendation, the Board adopted Policy 5100, which called for changes or adaptations which would result in a more diverse or heterogeneous racial and ethnic school population.

A second study committee (Berge Committee) was established in 1966 to examine the policies of the Board with respect to the location of new schools in Northeast Denver and to suggest changes which would lead to integration of student population in Denver schools. This committee recommended that no new schools be built in Northeast Denver; that a cultural arts center be established which would be attended by students from various schools on a half-day basis once or twice a week; that educational centers be created; and that a superior school program be initiated for Smiley and Baker junior high schools.

After more than six years of studying and discussing these committee reports and recommendations, the Board in 1968 passed the "Noel Resolution" (Resolution 1490). The "Noel Resolution" noted that Policy 5100 recognized that continuation of neighborhood schools had resulted in the concentration of minority racial and ethnic groups in some schools within the District and that these schools provided an unequal educational opportunity. The Resolution directed the Superintendent of Schools to submit to the Board a comprehensive plan for the integration of the Denver Public Schools.

Pursuant to the "Noel Resolution's" directive, the Superintendent submitted a report entitled "Planning Quality Education — A Proposal for Integrating the Denver Public Schools." Between January and April 1969, the Board studied the Superintendent's report and passed three resolutions — 1520, 1524 and 1531. These Resolutions were the product of intense study and discussion and were developed only after considering some fourteen alternative plans. Basically, their purpose was to eliminate segregation in the Negro schools in Park Hill while stabilizing the racial composition of schools in transition. Thus, these Resolutions constituted the first acts of departure from the Board's prior undeviating policy of refusing to take any positive action which would bring about integration of the Park Hill schools.

In May 1969, a School Board election was held. Much of the campaign revolved around Resolutions 1520, 1524 and 1531, especially those portions

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