Linker v. Unified School District# 259, Wichita, Kansas

• Decision Date: 27 June 1972
• Docket Number: No. W-4681 and W-4686.,W-4681 and W-4686.
• Citation: 344 F. Supp. 1187
• Parties: Billy Joe LINKER and Nancy L. Farha et al., Plaintiffs, v. UNIFIED SCHOOL DISTRICT #259, WICHITA, KANSAS, et al., Defendants.
• Court: U.S. District Court — District of Kansas

344 F. Supp. 1187

Billy Joe LINKER and Nancy L. Farha et al., Plaintiffs, v. UNIFIED SCHOOL DISTRICT #259, WICHITA, KANSAS, et al., Defendants.

Nos. W-4681 and W-4686.

United States District Court, D. Kansas.

June 27, 1972.

COPYRIGHT MATERIAL OMITTED

Richard J. Rome, Hutchinson, Kan., Ted K. Sharp, Richard H. Rumsey, Wichita, Kan., for plaintiffs.

Donald R. Newkirk, of Fleeson, Gooing, Coulson & Kitch, Wichita, Kan., David L. Norman, Asst. Atty. Gen., Brian K. Landsberg and Joseph D. Rich, Attys., Dept. of Justice, Washington, D. C., Robert J. Roth, U. S. Atty., Wichita, Kan., for defendants.

MEMORANDUM OF OPINION FINDINGS OF FACT AND CONCLUSIONS OF LAW

WESLEY E. BROWN, Chief Judge.

This is a civil action for injunctive relief in which the plaintiffs, as next friends of their respective minor children, seek to enjoin the defendant school district from operating under the terms of a desegregation agreement which was adopted by the members of the defendant Board of Education on May 17, 1971, and which was implemented upon the opening of the 1971-72 school year.

Both actions were originally and independently brought in the District Court for Sedgwick County, Kansas, and upon application of defendant school district were removed over opposition of the Farha plaintiffs, to this Court pursuant to 28 U.S.C. § 1443(2).¹ Thereafter, the Court ordered that defendant Richardson, in his capacity as Secretary of Health, Education and Welfare HEW, be joined as an additional defendant. The cases were then consolidated, and following discovery and disposition of certain motions, the consolidated cases were pre-tried. Following the entry of the Pre-Trial Order, the Court ordered that the portion of the consolidated actions which purported to be a class action should be dismissed because it failed to meet the prerequisites of Rule 23, Federal Rules of Civil Procedure. The parties agreed to submit the case on agreed facts and briefs. Briefs having been filed, the case is now ripe for disposition on its merits.²

The contentions of the plaintiffs in addition to questions of jurisdiction and the class action are summarized as follows:

The Farha plaintiffs contend that the defendants do not have

a) the authority and power under Federal and State Constitutions, the Kansas Statutes and the Kansas common law to perform certain acts agreed to, and outlined in the plan or agreement between defendant HEW and defendant school district, hereinafter referred to as the "Plan" which is now in full force and effect within the jurisdiction of defendant school district hereinafter referred to as "District 259";

b) contend in the alternative that the Plan violated the Sixth Article of the Bill of Rights of the Kansas Constitution of the Thirteenth Amendment to the United States Constitution in that as a result of the implementation of said Plan certain selected pupils were forced against their will to spend additional time each day on a school bus, which, in effect, constituted an act of penal servitude enforced by the defendants;

c) contend in the alternative that defendant Richardson acted in violation of HEW departmental rules and regulations in violation of his delegated statutory authority in his course of dealing with District 259 and the officers and members of the Board of Education thereof hereinafter referred to as the "Board" in the formulation of the Plan;

d) contend in the alternative that the findings and conclusions of the Hearing Examiner which were made after the hearing in which District 259 was the respondent, and HEW was the complainant, should be judicially reviewed by this Court in accordance with P.L. 89-554 as incorporated within 5 U.S.C. § 551-9, for the purpose of determining whether the findings and conclusions of the Hearing Examiner should be overturned;

e) contend their attorneys are entitled to attorneys fees for their services.

The sole contention of plaintiff Linker is that the selection of the names of his children by the Board to participate in the Plan was accomplished in an arbitrary and capricious manner and thereby violated Linker's equal protection rights under the Fourteenth Amendment.

Each of these general contentions is divided into many component sub-contentions which we have considered and where necessary or appropriate, referred to in our legal conclusions.

FINDINGS OF FACT

The parties have stipulated to the facts germain to this opinion. These stipulated facts, plus reasonable inferences arising from such facts, and found by the Court, are as follows:

As a matter of Kansas Constitutional³ and Statutory law,⁴ defendant District 259 is a body politic which includes Wichita and vicinity, and is governed by its Board of Education whose members are defendants herein. The Board receives all of its power and authority from the Kansas legislature and can act only through, or as the result of legislative grants.⁵

In addition to the authority granted to it by the Kansas legislature to govern District 259, the Board of the Unified School District is charged with certain duties imposed by other sections of the Kansas Statutes, applicable federal laws, and the Federal Constitution.

On July 13, 1965, District 259 submitted to the Department of Health, Education and Welfare a written assurance that it would comply with Title VI of the Civil Rights Act of 1964 and all regulations promulgated thereunder. 45 CFR Part 80. Since that date District 259 has applied for and received federal financial assistance. On February 16, 1970, HEW informed the Board that on the basis of a review of the operation of District 259, it was not in compliance with the Act or its regulations. On February 18, 1970, HEW served upon the Board a Notice for Opportunity for Hearing to be held for the purpose of determining whether District 259 was in compliance with Section 601 and 602 of the Civil Rights Act of 1964 or regulations promulgated pursuant to the Act. This notice prayed that if District 259 should be found not to be in compliance with the law and regulations, an order be issued terminating federal financial assistance. The hearing was held on June 8-12, 1970, and on February 16, 1971, the HEW Hearing Examiner issued his Initial Decision finding that the defendant Board was operating a dual system of schools on the basis of race at the elementary level and that District 259 was in violation of Title VI of the Civil Rights Act of 1964 and regulations pursuant thereto. In April, 1971, representatives of the Board and HEW met to discuss steps that needed to be taken to bring the District 259 into compliance with the law. On May 17, 1971, the Board adopted the desegregation plan which is the subject of this suit.

HEW informed the Board that the subject plan and the assurances made in regard to its implementation would meet the requirements of the law, and that deferral of federal funds could be lifted. Federal financial assistance to District 259 has never been terminated. From February 16, 1970, until August 18, 1971, District 259 was in a "deferred" status, i. e., they would continue to receive federal grants at pre-existing levels, but they were ineligible for new grants or increases in old grants.

In all proceedings above outlined, defendant Richardson and his predecessors in office were bound by the applicable provisions of the Rules and Regulations promulgated by HEW and incorporated in Title 45 CFR Part 80.

The desegregation plan adopted by the Board on May 17, 1971 and approved by HEW, applied only to the pupils attending elementary schools in District 259. The details of the Plan were developed after May 17, 1971, with the objective of establishing and maintaining racial integration in each elementary school. The standard used for the purpose of measuring racial integration of the elementary school was a ratio of black to white (we use this designation because the parties have done so) of not less than fifty per cent and not more than one-hundred and fifty per cent of black pupils on the basis of the total black elementary pupil population in the system.

The Board approved the Plan on June 21, 1971. The decision of the Board was partially induced by the urgings of federal officials under the supervision of defendant Richardson and by the fear of losing federal financial assistance to District 259. There is no evidence of any improper motive or arbitrary, unreasonable or capricious activity on the part of any member of the Board during the course of negotiations with HEW for federal funding and the adoption and implementation of the desegregation plan.

District 259 made no effort to obtain additional legislative authority for its actions at the time it adopted and implemented the Plan.

Three major aspects of the Plan are germain to the issues presented in this case. The first concerns the closing of certain elementary schools as classroom facilities and the demolition or diverting of these buildings to other uses. The second concerns the method by which students are selected for reassignment to schools other than their neighborhood schools. The third concerns the manner of its implementation, namely, "busing."

During the 1970-71 school year, there were 91 elementary schools in District 259. These schools were predominantly "neighborhood" schools, that is, their enrollment was determined primarily by a boundary system, and those students within the boundary attended their "neighborhood" school. Because there are some areas of Wichita whose racial composition is largely made up of Blacks, the enrollment of certain neighborhood schools was all, or practically all, of their children.

One facit of the Plan called for conversion of three of these neighborhood schools to integrated attendance centers. Ingalls, L'Ouverture, and Mueller. It was anticipated in the Plan that integration of these schools would be accomplished by assignment to these schools of 80-85% pupils of Whites. In addition, nine schools...