Keyes v. School Dist. No. 1, Denver, Colo., Nos. 74-1349

• Decision Date: 16 September 1975
• Docket Number: Nos. 74-1349,74-1350 and 74-1351
• Citation: 521 F.2d 465
• Parties: Wilfred KEYES et al., Plaintiffs-Appellees-Cross-Appellants (Number 74-1350), v. SCHOOL DISTRICT NO. 1, DENVER, COLORADO, et al., Defendants-Appellants-Cross-Appellees (Number 74-1350), Appeal of CITIZENS ASSOCIATION FOR NEIGHBORHOOD SCHOOLS, an unincorporatedassociation, Intervenor-Appellee (Number 74-1351). Congress of Hispanic Educators et al., Intervenors. Colorado Association of School Boards et al., Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 465

521 F.2d 465

Wilfred KEYES et al., Plaintiffs-Appellees-Cross-Appellants (Number 74-1350), v. SCHOOL DISTRICT NO. 1, DENVER, COLORADO, et al Defendants-Appellants-Cross-Appellees (Number 74-1350) Appeal of CITIZENS ASSOCIATION FOR NEIGHBORHOOD SCHOOLS, an unincorporatedassociation, Intervenor-Appellee (Number 74-1351) Congress of Hispanic Educators et al., Intervenors Colorado Association of School Boards et al., Amici Curiae.

Nos. 74-1349, 74-1350 and 74-1351.

United States Court of Appeals, Tenth Circuit.

Submitted Feb. 10, 1975.

Decided Aug. 11, 1975.

Rehearing Denied Sept. 16, 1975.

Michael H. Jackson, Denver, Colo. (William K. Ris, Thomas E. Creighton and Benjamin L. Craig, Denver, Colo., with him on the brief), for School Dist. No. 1 and others.

Gordon G. Greiner, Denver, Colo. (Robert T. Connery, Denver, Colo., and James M. Nabrit, III, New York City, with him on the brief), for Wilfred Keyes and others in Nos. 74-1349 and 74-1351.

Sanford Jay Rosen, San Francisco, Cal. (Vilma S. Martinez, Joaquin G. Avila, Carlos Alcala and Drucilla S. Ramey, San Francisco, Cal., and R. Pete Reyes, Denver, Colo., with him on the brief), for intervenors.

Reese Miller, Denver, Colo. (Jay W. Swearingen, Denver, Colo., with him on the brief), for amicus curiae Colorado Assn. of School Boards.

Gerald A. Caplan and Richard E. Bump of Caplan & Earnest, Boulder, Colo., on brief for amicus curiae Colorado Assn. of School Executives.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Jack E. Hanthorn, First Asst. Atty. Gen., Charles M. Elliott, Asst. Atty. Gen., Denver, Colo., on brief for amicus curiae State Board of Education, State of Colorado.

Before LEWIS, Chief Judge, and SETH and BARRETT, Circuit Judges.

LEWIS, Chief Judge.

These combined cases reach this court by appeal following remand directly to the district court by the Supreme Court, Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548. After extensive hearings the trial court entered its judgment, 368 F.Supp. 207. All parties appeal with typical inflexibility of position, understandably, perhaps, because of the great complexity of the problem and the inevitable intrusion of naked emotion and worrisome economic problems. Public objectivity is not to be even hoped for and judicial objectivity is difficult indeed. Although we do not affirm the judgment of the trial court in its entirety we do recognize that court's objective and stern effort to follow the law and the complete necessity of the court's rejection of the various plans advocated by the subjectively interested parties. And to place the orders of the district court in perspective, we will summarize the course of litigation in these cases from their inception in 1969, giving particular attention to the terms of the Supreme Court's remand. We will then consider whether the district court properly concluded that segregative acts of the defendant School Board during the 1960s render the entire Denver school system an illegal dual system. Next we will take up challenges to those portions of the court's remedial order concerning the reassignment and transportation of students. Finally, we will consider portions of the court's order dealing with the institution of bilingual-bicultural education in Denver schools, combination of East and Manual High Schools on a campus basis, and faculty and staff desegregation.

I.

In 1969 the plaintiffs sought a preliminary injunction against the School Board's implementation of its Resolution 1533, which would have effectively rescinded the Board's previously formulated desegregation plan for schools in Denver's Park Hill area. In granting the preliminary injunction, 303 F.Supp. 279, the trial court found that during the previous decade the School Board had willfully undertaken to maintain and intensify racial segregation in Park Hill schools. The trial court based this finding upon proof (1) that the Board established Barrett School in 1960 to contain the eastward movement of the black population in northeast Denver; (2) that the Board ignored official study committee proposals in 1962 and 1966 for the rezoning of attendance areas in order to minimize the effects of de facto segregation; (3) that the Board employed 28 of the district's 29 mobile classrooms in the Park Hill area to contain an overflow of black students; (4) that the Board added eight new classrooms at Hallett School also to contain an expanding black student body; (5) that in 1962 and 1964 the Board manipulated school boundaries in Park Hill and thereby further isolated black school children; (6) that the Board staffed minority schools with disproportionately high numbers of probationary teachers, teachers with less than ten years' experience, and minority teachers. In a supplemental opinion, 303 F.Supp. 289, the trial court held that the Board's Resolution 1533 constituted a further act of de jure segregation. The trial court again enjoined implementation of Resolution 1533 and further ordered boundary changes in keeping with the Board's previously formulated desegregation policy.

At trial on the merits, plaintiffs alleged acts of de jure segregation both in Park Hill and in Denver's central or core city area. In its memorandum opinion, 313 F.Supp. 61, the trial court reaffirmed its position that the Board willfully followed a policy of racial concentration and isolation in Park Hill in violation of the rights of minority school children. With respect to the core city schools, however, that court determined minority concentrations did not result from affirmative conduct on the part of the Board; rather, black and Hispano concentrations in these schools stemmed from long-established housing and population patterns and from the Board's racially neutral "neighborhood school" policy. The court held, however, that irrespective of the causes of segregation in the core city, these schools unconstitutionally provided inferior education for their minority students. The trial court made final its preliminary injunction reinstating Resolutions 1520, 1524, and 1531, pursuant to which the Board was to eliminate segregation in Park Hill's predominantly black schools and to stabilize the racial composition of schools in transition. In a subsequent opinion, 313 F.Supp. 90, the district court ordered the desegregation of core city schools and the institution of a program of compensatory education for minority students.

On appeal, this court affirmed the trial court's conclusion that the Board's actions in Park Hill during the 1960s amounted to de jure segregation in violation of minority students' rights to equal protection of the laws. 445 F.2d 990. We did, however, reverse the district court's ruling that the Board's maintenance of de facto segregated schools in the core city transgressed the fourteenth amendment. Absent proof of affirmative Board action leading to segregated conditions, this court held, maintenance of educationally inferior segregated schools does not provide grounds for relief under the Constitution. In this connection, we stated that:

(W)here no type of state imposed segregation has previously been established, the burden is on plaintiff to prove by a preponderance of the evidence that the racial imbalance exists and that it was caused by intentional state action. Once a prima facie case is made, the defendants have the burden of going forward with the evidence. 445 F.2d at 1006.

However, we affirmed the trial court's conclusion that plaintiffs failed to make a prima facie case as respects the core city schools.

The Supreme Court granted plaintiffs' petition for certiorari and ultimately overturned this court's rulings relating to the existence of actionable segregation in core city schools. 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548. ¹ The High Court observed that where school authorities are proved to have "carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers, and facilities within the school system, it is only common sense to conclude that there exists a predicate for a finding of the existence of a dual school system." 413 U.S. at 201, 93 S.Ct. at 2694. The Supreme Court reasoned that the purposeful concentration of minority students in certain schools has the reciprocal effect of keeping other schools predominantly Anglo. Certainly natural boundaries or peculiarities in the geographic structure of a school district may prevent the district-wide impact of segregative acts directed at a portion of the district; but, as the Supreme Court acknowledged, such cases must be rare. The Court then held that in the absence of a determination that the school district is naturally fractionalized into separate, identifiable and unrelated units, "proof of state-imposed segregation in a substantial portion of the district will suffice to support a finding by the trial court of the existence of a dual system." 413 U.S. at 203, 93 S.Ct. at 2695. ²

The Supreme Court, then, established the presumption that the School Board's segregative acts in a substantial portion of the school district renders the entire district a dual system. At this point we must observe that the compulsion of the Court's opinion does not preclude the Board from rebutting this presumption with proof that the racial compositions of predominantly Anglo schools surrounding areas of minority concentration have been unaffected by the Board's segregative acts. The presumption of system-wide impact, however, derives from the pervasive interrelationship between school policy and the community's development; it is therefore not easily rebutted. The manipulation of attendance areas, the construction of new schools and classrooms, and the assignment of faculty and staff, all for racial effect, profoundly influence subsequent housing and population patterns throughout the district. In order to rebut the presumption...