Keyes v. SCHOOL DIST. NO. 1, DENVER, COLO., Civ. A. No. C-1499.

• Decision Date: 03 June 1985
• Docket Number: Civ. A. No. C-1499.
• Citation: 609 F. Supp. 1491
• Parties: Wilfred KEYES, et al., Plaintiffs, Congress of Hispanic Educators, et al., Plaintiff-Intervenors, v. SCHOOL DISTRICT NO. 1, DENVER, COLORADO, et al., Defendants.
• Court: U.S. District Court — District of Colorado

609 F. Supp. 1491

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

Civ. A. No. C-1499.

United States District Court, D. Colorado.

June 3, 1985.

Gordon G. Greiner, Holland & Hart, Denver, Colo., James M. Nabrit, III, New York City, for plaintiffs.

Norma V. Cantu, Morris J. Baller, Mexican American Legal Defense and Educational Fund, San Francisco, Cal., Kenneth Siegel, Kenneth Salazar, Sherman & Howard, Denver, Colo., for plaintiff-intervenors.

Michael H. Jackson, Semple & Jackson, Denver, Colo., Phil C. Neal, Friedman & Koven, Chicago, Ill., for defendants.

Wm. Bradford Reynolds, Asst. Atty. Gen., Charles J. Cooper, Deputy Asst. Atty. Gen., Hugh Joseph Beard, Jr. and Michael Carvin, Attys., Civil Rights Div., U.S. Dept. of Justice, Washington, D.C., Robert N. Miller, U.S. Atty., Denver, Colo., amicus curiae.

MEMORANDUM OPINION AND ORDER

MATSCH, District Judge.

The Board of Education of School District No. 1 seeks to end this case by moving for a determination that the District has provided an equal educational opportunity for all students and has remedied all past failures to comply with the requirements of the United States Constitution. More particularly, the matter now before this court is a motion, filed January 19, 1984, for entry of the following orders:

1. An order declaring that the Defendant School District is a unitary school system in the following respects: a) Faculty, b) Staff, c) Transportation, d) Extracurricular Activities, e) Facilities, and f) Composition of Student Body.

2. An order modifying and dissolving the injunction as it relates to the assignment of students to schools.

3. An order declaring that the remedy previously ordered in this case to correct the Constitutional violation as found has been implemented, and that there is no need for continuing court jurisdiction in the matter.

The purpose of the motion is set forth in the following paragraphs from it:

Throughout the proceedings herein, the Court has urged upon the parties the need to develop and define a process and procedure whereby the Court and the parties might have the opportunity to present evidence to the Court on the unitary nature of the district and the extent of the School District's compliance with the remedial orders of the Court, and for the need, if any, for continuing court jurisdiction over the affairs of School District No. 1.

The earliest definitions of a unitary school system enunciated six criteria to be considered by a court in its determination of whether a school system was dual or unitary. They included: Faculty, Staff, Transportation, Extracurricular Activities, Facilities, and Composition of Student Body. Green v. County School Board, 391 U.S. 430, 435 88 S.Ct. 1689, 1692, 20 L.Ed.2d 716 (1968) An analysis has been conducted by staff utilizing the criteria as set forth above, and the working definition of the unitary school system, as announced by this Court in its Memorandum and Opinion dated May 12, 1982. The School District is prepared to show to the Court its compliance with the criteria and with the Court's definition at an evidentiary hearing for that purpose.

Although the parties to the litigation have been before the Court on numerous occasions with respect to proposed changes in the orders as they relate to matters of pupil assignment, none of these hearings were designed to permit the parties to explore the extent to which the School District has fulfilled its remedial obligations; and, as a result, neither the parties nor the Court have had a full opportunity to examine the data and the evidence that bears upon the question of whether the School District has in fact fully implemented the court ordered remedy and that the remedy has accomplished its purpose.

The requested full evidentiary hearing was held in May, 1984, and the plaintiffs, defendants and intervenors have filed comprehensive briefs. The United States Department of Justice has also filed both pretrial and post-trial memoranda as amicus curiae. The court is fully informed on the issues and arguments relevant to the motion.

GENERAL PRINCIPLES

The parties approach the issues and evidence in this case from different perspectives reflecting differing interpretations of the scope of the equal protection clause. Perhaps, as with visual perspectives, the difference is influenced by the relative positions of the parties. The Board of Education looks at the case from the high ground occupied by those holding the power of governance. In that position there may be a tendency to accept a more static overview of a somewhat distant scene characterized by stability and serenity. The plaintiffs/intervenors represent people whose historical disadvantages give them an alternate viewpoint. For those who are still deep in the valley, struggling for survival, and for those moving upward on the mountain, educational opportunity is the path to progress. They are on the move, seeing only transient scenery, and their primary concern is the direction of their movement. Is the trail going forward and upward, or downward and backward?

The difference between the parties may also be illustrated with a different analogy. The defendants ask that we look at the Denver school system by making detailed comparisons of enlarged aerial photographs taken in 1976 and 1984. The plaintiffs/intervenors ask us to view a movie film record of events from 1968 to 1984, with close-ups of a few of the frames at different intervals. The choice turns on conflicting interpretations of constitutional law based on alternative approaches in analyzing Supreme Court opinions.

That process of interpretation of constitutional law will also be affected by methodology in establishing viewpoint. Does one plumb the depths of the relevant opinions as a series of pools, or is it more appropriate to look at the Court's language as the flow of a meandering stream with eddies, backwaters and even changes of direction? The latter view is more consistent with the guiding role of the Court.¹ School desegregation cases differ from most litigation in that much of the evidence is developed while the case is in court. In most lawsuits, the court's focus is retrospective. The issues arise from historical events and the evidentiary disputes are resolved by the court's findings of the probabilities about matters which occurred in the past. In school desegregation cases, there are political and demographic changes which occur while the case is in court and even the court's processes and decrees — at least the public perception of them — can be factors influencing some of those changes. It is also important to remember that the applicable principles of constitutional law have evolved under circumstances of change in the characteristics of our national community and in the course of developing new information and understanding about sociology and psychology.

Only 128 years ago, the Supreme Court asked:

The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.

Dred Scott v. Sandford, 60 U.S. (19 How) 393, 403, 15 L.Ed. 691 (1856).

The Court sought justification for its negative answer by finding that the founding fathers did not intend to recognize slaves or their descendants as citizens. Chief Justice Taney made the following observation about the status of Negroes at the time of adoption of the Declaration of Independence and the Constitution:

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.

And in no nation was this opinion more firmly fixed or more uniformly acted upon than by the English Government and English people. They not only seized them on the coast of Africa, and sold them or held them in slavery for their own use; but they took them as ordinary articles of merchandise to every country where they could make a profit on them, and were far more extensively engaged in this commerce than any other nation in the world.

The opinion thus entertained and acted upon in England was naturally impressed upon the colonies they founded on this side of the Atlantic. And, accordingly, a negro of the African race was regarded by them as an article of property, and held, and bought and sold as such, in every one of the thirteen colonies which united in the Declaration of Independence, and afterwards formed the Constitution of the United States.

Id. 60 U.S. at 407-8.

The Dred Scott opinion was, of course, reversed by the adoption of the Thirteenth and Fourteenth Amendments to the United States Constitution after the Civil War. Yet, the power of the continuing public perception of inferiority of Blacks was reflected...