Keyes v. School Dist. No. 1, Denver, Colo.

• Decision Date: 30 January 1990
• Docket Number: 87-2634,Nos. 85-2814,s. 85-2814
• Citation: 895 F.2d 659
• Parties: 58 Ed. Law Rep. 906 Wilfred KEYES, et al., Plaintiffs-Appellees, and Congress of Hispanic Educators, et al., Plaintiffs/Intervenors-Appellees, v. SCHOOL DISTRICT NO. 1, DENVER, COLORADO, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 659

895 F.2d 659

58 Ed. Law Rep. 906

Wilfred KEYES, et al., Plaintiffs-Appellees and Congress of Hispanic Educators, et al Plaintiffs/Intervenors-Appellees, v. SCHOOL DISTRICT NO. 1, DENVER, COLORADO, et al Defendants-Appellants.

Nos. 85-2814, 87-2634.

United States Court of Appeals Tenth Circuit.

Jan. 30, 1990.

Phil C. Neal of Neal, Gerber, Eisenberg & Lurie, Chicago, Ill. (Michael H. Jackson of Semple & Jackson, Denver, Colo., with him on the brief) for defendants-appellants.

Gordon G. Greiner of Holland & Hart, Denver, Colo., for plaintiffs-appellees (James M. Nabrit, III, New York City, with him on the brief for plaintiffs-appellees; Norma V. Cantu of Mexican American Legal Defense and Educational Fund, Inc., San Antonio, Tex., and Peter Roos, San Francisco, Cal., with him on the brief for plaintiffs/intervenors-appellees).

Wm. Bradford Reynolds, Asst. Atty. Gen., Roger Clegg, Deputy Asst. Atty. Gen., and David K. Flynn, Atty. Dept. of Justice, Washington, D.C., filed a brief on behalf of the U.S. as amicus curiae.

Before LOGAN, SETH and ANDERSON, Circuit Judges.

LOGAN, Circuit Judge.

This is yet another chapter in the slow and acrimonious desegregation of Denver Public School District No. 1. In the district court, the school district moved for a declaration that it had attained unitary status and for the termination of this case and of the court's continuing jurisdiction over operation of the schools. The court denied both requests and later ordered the district to prepare a plan for further desegregation of certain schools and programs that it believed were preventing the district from attaining unitary status. Case number 85-2814 is the district's appeal from the court's denial of its motion for termination of continuing jurisdiction and from the court's later order. Case number 87-2634 is the district's appeal from the court's order approving the district's response but retaining jurisdiction, and its subsequent "interim decree" in which the court eliminated reporting requirements and mandated certain general desegregation actions. The court styled its "interim decree" an intermediate step towards a final, permanent injunction.

I

This case began in 1969 when plaintiffs, parents of children then attending the Denver public schools, sought an injunction against the school district's rescission of a proposed voluntary desegregation plan. Since that time the parties have made many trips to the courthouse, resulting in numerous opinions, including two by this court and one by the full Supreme Court of the United States. ¹ In the instant appeals we are concerned primarily with the district court's actions in Keyes XIV through Keyes XVII.

From 1974, see Keyes IX, 380 F.Supp. 673, to the present the school district has operated under a court-ordered desegregation plan, which occasionally has been modified with the district court's approval. See, e.g., Keyes XII, 540 F.Supp. at 404; Keyes XI, 474 F.Supp. at 1276. In 1984 the district moved for an order declaring the Denver schools unitary, dissolving the injunction as it related to student assignments, and terminating the court's jurisdiction in the case. Plaintiffs opposed the motion and moved for an order directing the school district to prepare and submit numerous plans and policies to remedy what they considered shortcomings in the district's desegregation efforts. The court held a full hearing on the motions and later filed an opinion denying the district's motion, but refusing to rule on plaintiffs' motion pending further negotiations between the parties. Keyes XIV, 609 F.Supp. at 1521-22.

In its opinion, the court rejected the district's argument, id. at 1498, that compliance for an extended period of time with the 1974 court-approved desegregation plan, as modified in 1976, entitled the district to a declaration of unitariness. The court reasoned that the district's argument hinged on the thesis that the "1974 Final Judgment and Decree, as modified in 1976, was a complete remedy for all of the constitutional violations found in this case." Id. However, the court had indicated at the time of its 1976 order that further remedial changes would be necessary in the future. Id. at 1500.

The court supported its factual finding that the district was not unitary by placing weight on the following factors: its recognition in 1979 and the school board's recognition in 1980 that the district was not yet unitary, id. at 1501; the board's uncooperative attitude in recent years, id. at 1505; the board's recognition in one of its resolutions that compliance with the court-approved plan was insufficient, in itself, to desegregate the district's schools, id. at 1506; the increasing resegregation at three schools, id. at 1507; the district's misinterpretation of the faculty/staff assignment policy so that the fewest number of minority teachers would be placed in previously predominantly Anglo schools, id. at 1509-12; and the district's "hardship transfer" policy, which the court found was implemented with "a lack of concern about the possibility of misuse and a lack of monitoring of the effects of the policy," id. at 1514. In addition, the court believed that the district had not given adequate assurances that resegregation would not occur if the court terminated jurisdiction, id. at 1515, and that in any event, even if the board affirmatively tried to prevent resegregation, it would be compelled to comply with Colo. Const. Art. IX Sec. 8 which outlaws "forced busing," compliance with which certainly would cause drastic resegregation of Denver's schools. Keyes XIV, 609 F.Supp. at 1515. Finally, the court noted that mere statistics indicating general integration in student assignments were insufficient to compel a finding of unitariness, id. at 1516, and indicated that the board had neither the understanding of the law nor the will to contravene community sentiment against busing that would be necessary for the district to achieve and maintain a unitary school system. Id. at 1519, 1520.

Following this ruling and the parties' failure to negotiate a settlement of their differences, the court ordered the school district to prepare and submit a plan "for achieving unitary status ... and to provide reasonable assurance that future Board policies and practices will not cause resegregation." Keyes XV, I R. Tab 29 at 2. Specifically, the court ordered the board to address four problem areas: (1) three elementary schools, Barrett, Harrington, and Mitchell, that were racially identifiable as minority schools; (2) the district's hardship transfer policy; (3) the assignment of faculty; and (4) plans to implement board Resolution 2233, which states the board's commitment to operation of a unitary school system. Id. at 2-3. It is from this order and the court's ruling in Keyes XIV that the school district appeals in case number 85-2814.

In February 1987, the district court noted that the board had responded positively to its order in Keyes XV, but that the plaintiffs still had ample reason for their concerns about the district's ability or willingness to achieve and maintain a unitary system. Keyes XVI, 653 F.Supp. at 1539-40. Nevertheless, the court cited the community's interest in controlling its school district and decided "that it is time to relax the degree of court control over the Denver Public Schools." Id. at 1540. At the same time, the court concluded that a permanent injunction should be constructed, in part because one board's resolutions could not bind a subsequent board, and the constitutional duty was to maintain, not simply achieve, a desegregated, unitary school system. Id. at 1541-42.

Later in 1987, the district court issued an "interim decree" that eliminated reporting requirements and allowed the school district to make changes in the desegregation plan without prior court approval. Keyes XVII, 670 F.Supp. at 1515. The court attempted to fashion an injunction sufficiently specific to meet the requirements of Fed.R.Civ.P. 65(d), while at the same time allowing the board to operate "under general remedial standards, rather than specific judicial directives." Id. The court summarized its order as enjoining "governmental action which results in racially identifiable schools," id. at 1516, and said its decree was a step towards a final decree that would terminate the court's supervisory jurisdiction and the litigation's remedial phase. Id. In case number 87-2634, the district appeals the court's February 1987 order and its later "interim decree."

II

Plaintiffs assert, as an initial matter, that this court does not have jurisdiction over case number 85-2814. Specifically, plaintiffs argue that subsequent orders of the district court have superseded Keyes XIV, and thus any appeal from the decision is moot. In the alternative, they contend that the court's "refusal to issue a declaratory judgment that a defendant has complied with an injunction," see Joint Brief of Appellees at 1, is not an appealable injunctive order under 28 U.S.C. Sec. 1292(a)(1), the school district's asserted basis for appellate jurisdiction. In addition, plaintiffs argue that the appeal from Keyes XV, the court's order for the district to submit certain desegregation plans, also is mooted by the interim decree and was not an injunctive order under 28 U.S.C. Sec. 1292(a)(1).

We hold that the school district's appeal from Keyes XIV is not moot and that we have jurisdiction to consider the appeal. A case becomes moot when the controversy between the parties no longer is "live" or when the parties have no cognizable interest in the appeal's outcome. Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982) (per curiam); Wiley v. NCAA, 612 F.2d 473, 475 (10th Cir.1979) (en banc), cert. denied, 446 U.S. 943, 100 S.Ct. 2168, 64 L.Ed.2d 798 (1980). Here, however, a decision favorable to the school district, reversing the district court's ruling that...