Keyes v. School District Number One, Denver, Colorado

• Decision Date: 05 August 1969
• Docket Number: Civ. A. No. C-1499.
• Citation: 303 F. Supp. 279
• Parties: Wilfred KEYES, individually and on behalf of Christi Keyes, a minor, et al., Plaintiffs, v. SCHOOL DISTRICT NUMBER ONE, DENVER, COLORADO, et al., Defendants.
• Court: U.S. District Court — District of Colorado

303 F. Supp. 279

Wilfred KEYES, individually and on behalf of Christi Keyes, a minor, et al., Plaintiffs, v. SCHOOL DISTRICT NUMBER ONE, DENVER, COLORADO, et al., Defendants.

Civ. A. No. C-1499.

United States District Court D. Colorado.

July 31, 1969.

Vacated and Remanded August 5, 1969.

Barnes & Jensen, by Craig S. Barnes, Gerald L. Jensen, Holland & Hart, by Gordon G. Greiner, Lawrence W. Treece, Robert T. Connery, Denver, Colo., Vilma Martinez Singer, New York City, for plaintiffs.

Henry, Cockrell, Quinn & Creighton, by Richard C. Cockrell, Victor Quinn, Thomas E. Creighton, Benjamin L. Craig, Michael Jackson, Denver, Colo., Beirne, Wirthlin & Manley, by Robert E. Manley, Cincinnati, Ohio, for defendants, except John H. Amesse, James D. Voorhees, Jr., and Rachel B. Noel, as individuals.

MEMORANDUM OPINION AND ORDER

WILLIAM E. DOYLE, District Judge.

I. JURISDICTION

This is before us on a motion for temporary injunction. Examination of the complaint reveals that jurisdiction is invoked by reason of Title 28 U.S.C. § 1343(3) (4), which authorizes the Court to entertain suits which seek to redress injuries resulting from violations of the Constitution of the United States. Although the Declaratory Judgment Act has been invoked, this does not of itself confer any independent jurisdiction. The Civil Rights Act is also drawn into play, Title 42 U.S.C. §§ 1983, 1985. It is alleged that the State of Colorado, acting through its agents, violated plaintiffs' constitutional rights. By reason of the allegations of the complaint and the facts which have been presented, it is determined that there is subject matter jurisdiction to hear the cause.

The plaintiffs, who are school children, allege through their parents that their rights have been violated and continue to be violated through acts that have been described. Consequently, they are aggrieved persons. There is no dispute about their identity or their interest in the case, nor is there any question raised as to the propriety of a class action on behalf of all persons similarly situated. Consequently, there does not appear to be any problem about jurisdiction, personal or subject matter, to entertain the cause. Both sides have conceded that it is a matter that needs immediate attention and that it should be disposed of without delay.

II. THE ISSUES

The pleadings describe alleged injuries resulting from the plaintiffs having been subjected to unequal treatment with respect to their right to an education. They seek to enjoin the implementation of a resolution of the School Board passed on June 9th of this year which would have rescinded previous resolutions which had made some effort to mitigate or reduce segregation which allegedly had existed in schools in the northeast part of Denver. The defendants deny that there has been any actionable segregation. Although no answer has been filed, they maintain that segregation, if any, exists by reason of maintaining neighborhood schools and natural migration, and that no action on their part has brought this about or intensified it. Basically, this is the issue which has been tried here, and has been tried rather extensively.

The complaint herein contains several causes of action and counts. At this stage of the proceedings we are concerned only with the first cause of action and the counts which are related to it. All of these allegations pertain to the rescission of School Board Resolutions 1520, 1524 and 1531, which resolutions made changes in the attendance areas of certain high schools, junior high schools and elementary schools in northeast Denver, and undertook to desegregate these schools, all of which had become or were becoming predominantly Negro schools. It is alleged that on June 9, 1969, the newly elected School Board, by motion, rescinded all three resolutions. The complaint alleges that the action of the Board was in violation of the plaintiffs' Constitutional rights — the Fourteenth Amendment — and seeks a decree reinstating Resolutions 1520, 1524 and 1531.

The motion for preliminary injunction which is now before us seeks to enjoin the implementation of Board Resolution 1533 which would adopt and follow the policy which would carry out the practices which existed prior to the Board's adoption of Resolutions 1520, 1524 and 1531. The temporary injunction seeks maintenance of the status quo and, specifically, an order enjoining the School Board from modifying the purchase order for school buses, destroying documents relating or pertaining to the implementation of Resolutions 1520, 1524 and 1531 and, thirdly, from taking any action or making any communications to faculty, staff, parents or students during the pendency of the suit which would make it impossible or more difficult to proceed with the implementation of Resolutions 1520, 1524 and 1531. The defendants have not filed an answer. However, at the hearing they denied that any of their acts were invalid and generally maintained that they had made good faith efforts to integrate the schools in question to the extent that it was possible to do so considering the geographic circumstances. They further maintained that the segregation, if any, was merely de facto growing out of the neighborhood character of the schools, and that the acts of the School Board do not amount to actionable or de jure segregation.

III. THE EVIDENCE OF THE CASE

Attention at this hearing has focused primarily on the schools in northeast Denver, and particularly on the area which is commonly called Park Hill. The alleged segregated schools, elementary and junior high schools in this area, have acquired their character as such during the past ten years. The primary reason for this has been the migration of the Negro community eastward from a confined community surrounding what is commonly called "Five Points." Before 1950 the Negroes all lived in a community bounded roughly by 20th Avenue on the south, 20th Street on the west, York Street on the east and 38th Avenue on the north. The schools in this area were, and are now, largely Negro schools. However, we are not presently concerned with the validity of this condition. During this period the Negro population was relatively small, and this condition had developed over a long period of time. However, by 1960 and, indeed, at the present time this population is sizable. As the population has expanded the move has been to the east, first to Colorado Boulevard, a natural dividing line, and later beyond Colorado Boulevard, but within a narrow corridor — more or less fixed north-south boundaries. The migration caused these areas to become substantially Negro and segregated.

The trend of the population was apparent long before the migration of the Negro population eastward to Colorado Boulevard was completed. Notwithstanding this fact, the Barrett Elementary School was built in the late 1950's for the purpose of serving a residential area west of the school, which area was destined in a short time to become populated by Negro families. When this school was completed and opened, its population was predominantly Negro. In a few years it became overwhelmingly Negro in its composition.

In the early 1960's Colorado Boulevard was somewhat of a dividing line and the area east of Colorado Boulevard was for the most part Anglo. Thus Stedman School, which was a few blocks east of Colorado Boulevard, was almost entirely Anglo, while Barrett was predominantly Negro. The migration soon continued across Colorado Boulevard and within a very short time not only was the Stedman School predominantly Negro, the other elementary schools in that area, including Hallett at 2950 Jasmine Street, Smith at 3590 Jasmine Street and Phillips at 6550 East 21st Avenue (to a lesser degree) were also predominantly Negro. The single junior high school, Smiley, at 2540 Holly Street, also became predominantly Negro. Since these students attend East High School, this development threatened to result in East becoming a Negro school as well.

It is noteworthy that notwithstanding that Barrett and Stedman Schools were close to one another, no effort was made by the School Board to incorporate any part of the Stedman district into Barrett. The latter had been constructed as a small school tailored to accommodate the segregated population west of Colorado Boulevard only. None of Stedman's overcrowded white population were diverted to Barrett, and, of course, none of the Barrett students were diverted to the white Stedman.

It is also noteworthy that Negro children who had, prior to the construction of Barrett, attended Park Hill School which had been substantially integrated, were, after the opening of Barrett, required to attend the latter school thus further assuring that Barrett would be black and Park Hill predominantly white.

Notwithstanding the Barrett experience, a recommendation was made in 1962 to construct a junior high school at 32nd and Colorado Boulevard near the Barrett School. This project was rejected after much debate and following public protest that it would be a racially segregated junior high school.

After this junior high school experience, a Special Study Committee on Equality of Educational Opportunity in the Denver Public Schools was created. Its mission was to "study and report on the present status of educational opportunity in the Denver Public Schools, with attention to racial and ethnic factors in the areas of curriculum, instruction and guidance; pupils and personnel; buildings, equipment, libraries and supplies, administration and organization; school-community relations, and to recommend improvements in any or all of such specific areas." The report of the Committee criticized the Board's establishing of school boundaries so as to perpetuate existing de facto segregation "and its resultant inequality in the educational opportunity offered." It recommended that the Board policy consider racial, ethnic and socioeconomic factors in...