N. A. A. C. P. v. Lansing Bd. of Educ.

• Decision Date: 26 July 1977
• Docket Number: No. 76-1267,76-1267
• Citation: 559 F.2d 1042
• Parties: NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, Lansing Branch, Cynthia Taylor, Judith Taylor and Andrea Taylor, by their father and Next Friend, James R. Taylor, Melinda Lea Hedley, Christine Michele Hedley, Douglas John Hedley and Daniel Joseph Hedley, by their mother and Next Friend, Joan L. Hedley, Peter Miller and Elizabeth Miller, by their father and Next Friend, Charles Miller, Frank J. Pennoni and James Pennoni, by their mother and Next Friend, Kathleen Pennoni, and David Kron and Lisa Kron, by their father and Next Friend, Walter V. Kron, Plaintiffs-Appellees, v. LANSING BOARD OF EDUCATION, a body corporate, and Members of the Lansing Board of Education, viz., Vernon D. Ebersole, Clare D. Harrington, Michael F. Walsh, Ray A. Hannula, Joan Hess, J. C. Williams, Bruce Angell, Joseph E. Hobrla and Max D. Shunk, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1042

559 F.2d 1042

NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE Lansing Branch, Cynthia Taylor, Judith Taylor and Andrea Taylor, by their father and Next Friend, James R. Taylor Melinda Lea Hedley, Christine Michele Hedley, Douglas John Hedley and Daniel Joseph Hedley, by their mother and Next Friend, Joan L. Hedley, Peter Miller and Elizabeth Miller by their father and Next Friend, Charles Miller, Frank J Pennoni and James Pennoni, by their mother and Next Friend, Kathleen Pennoni, and David Kron and Lisa Kron, by their father and Next Friend, Walter V. Kron, Plaintiffs-Appellees, v. LANSING BOARD OF EDUCATION, a body corporate, and Members of the Lansing Board of Education, viz., Vernon D. Ebersole, Clare D. Harrington, Michael F. Walsh, Ray A. Hannula, Joan Hess, J. C. Williams, Bruce Angell, Joseph E. Hobrla and Max D. Shunk, Defendants-Appellants.

No. 76-1267.

United States Court of Appeals, Sixth Circuit.

Argued April 21, 1977.

Decided July 26, 1977.

Fred C. Newman, Newman & Mackay, Lansing, Mich., for defendants-appellants.

John W. Davis, Lansing, Mich., for plaintiffs-appellees.

Before CELEBREZZE, PECK and LIVELY, Circuit Judges.

CELEBREZZE, Circuit Judge.

The Board of Education and its individual members appeal from a finding of liability in a suit brought to desegregate public elementary schools in Lansing, Michigan. The suit was brought as a class action by the National Association for the Advancement of Colored People (NAACP) and by children and parents of children who are elementary students in the Lansing school system. Chief Judge Noel P. Fox of the Western District of Michigan, Southern Division, found that the Lansing School Board, through its acts and omissions, has created and maintained a racially segregated school system. The District Court enjoined the School Board from enforcing resolutions of February 1, 1973, rescinding a voluntary cluster-school desegregation plan instituted on June 29, 1972. The Court ordered that the cluster plan for desegregating Lansing's elementary schools remain in effect until a final remedy is submitted by the Board and approved by the Court. Appellants raise three issues on appeal: whether the District Court applied an incorrect legal standard; whether the Court's findings of fact are clearly erroneous; and whether the Board of Education was denied a fair trial. For the reasons stated below, we affirm.

In the landmark case of Brown v. Board of Education, 347 U.S. 483, 495, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I), the Supreme Court overruled the "separate-but-equal" doctrine of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), and held that racially segregated public education facilities are inherently unequal and that children who are forced to attend segregated schools are denied the equal protection of laws in violation of the Fourteenth Amendment. But to be violative of the Fourteenth Amendment, the racial segregation in public schools must result from some form of state action and not from factors, such as residential housing patterns, which are beyond the control of state officials. ¹ See Swann v. Board of Education,402 U.S. 1, 17-18, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). Where a dual educational system was authorized by state law at the time of Brown I, finding state action presents no serious problem. The state automatically assumes an affirmative duty "to effectuate a transition to a racially nondiscriminatory school system," Brown v. Board of Education, 349 U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955) (Brown II), by eliminating "all vestiges of state-imposed segregation." Swann v. Board of Education, 402 U.S. at 15, 91 S.Ct. at 1275. See also Green v. County School Board, 391 U.S. 430, 437-38, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). The problem of finding state action is more acute, however, in northern school districts which do not have a history of statutorily authorized segregated schools. See Keyes v. School District No. 1, 413 U.S. 189, 201, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). However, even in school districts which purport to be unitary, unlawful segregation exists where "school authorities have carried out a systematic program of segregation affecting a substantial portion of students, schools, teachers, and facilities within the school system . . . ." Keyes v. School District No. 1, 413 U.S. at 201, 93 S.Ct. at 2694. In Keyes the Supreme Court distinguished between de facto and de jure segregation. De jure segregation was defined as "a current condition of segregation resulting from intentional state action directed specifically (at) the (segregated) schools." Id. at 205-06, 93 S.Ct. at 2696. The Keyes Court stressed that the differentiating factor between de jure and de facto segregation is the "purpose or intent to segregate." Id. at 208, 93 S.Ct. 2686. The distinction between de facto and de jure segregation has been criticized and its abandonment has been urged. See Keyes v. School District No. 1, 413 U.S. at 216, 93 S.Ct. 2686. (Douglas, J., concurring); id. at 219-36, 93 S.Ct. 2686 (Powell, J., concurring in part, dissenting in part). In Cisneros v. Corpus Christi Independent School District, 467 F.2d 142, 148 (5th Cir. 1972), the Fifth Circuit rejected the de facto/de jure dichotomy and held that all that need be shown to establish illegal segregation is that official action had the discriminatory effect of denying equal educational opportunities to minority students. The "discriminatory effect" approach was, however, rejected in Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), when the Supreme Court reaffirmed the de facto/de jure distinction recognized in Keyes. See also Austin Independent School District v. United States, 429 U.S. 990, 97 S.Ct. 517, 50 L.Ed.2d 603 (1977). ² In Washington v. Davis, 426 U.S. at 240, 96 S.Ct. 2040, the Supreme Court cites Keyes for the proposition that a showing of "racially discriminatory purpose" is required in all equal protection cases. ³

Appellants contend that Washington v. Davis and Austin Independent School District v. United States require reversal of the lower court's decision because Judge Fox relied on the now-discredited "discriminatory effect" test in evaluating the Board's conduct. We reject this contention. In his opinion, Judge Fox explicitly adopted a test dependent on purposeful segregation by public school officials. While mentioning that the Fifth Circuit had rejected the de jure/de facto dichotomy in Cisneros v. Corpus Christi Independent School District, Judge Fox expressly followed the Supreme Court's lead in Keyes and assumed that de jure segregation was required to support a finding of constitutional violation, preferring to leave to future adjudication the question of whether something other than de jure segregation constitutes a violation of the Fourteenth Amendment. In finding Appellees guilty of acts of de jure segregation, the District Court applied the standards we announced in Oliver v. Michigan State Board of Education, 508 F.2d 178, 182 (6th Cir. 1974):

A finding of de jure segregation requires a showing of three elements: (1) action or inaction by public officials (2) with a segregative purpose (3) which actually results in increased or continued segregation in the public schools. A presumption of segregative purpose arises when plaintiffs establish that the natural, probable, and foreseeable result of public officials' action or inaction was an increase or perpetuation of public school segregation. The presumption becomes proof unless defendants affirmatively established that their action or inaction was a consistent and resolute application of racially neutral policies. (footnote omitted)

Appellants claim that our reference in Oliver to the inference of segregated purpose from "the natural, probable, and foreseeable result of public officials' action or inaction" was an adoption of the "discriminatory effect" test repudiated in Washington v. Davis and Austin Independent School District v. United States. On two previous occasions, we have rejected similar arguments. Bronson v. Board of Education, 525 F.2d 344, 348 (6th Cir. 1975); Higgins v. Board of Education, 508 F.2d 779, 790-91 (6th Cir. 1974). As we noted in Bronson v. Board of Education, 525 F.2d at 348, the correct reading of Oliver is that the Court did not dispense with the requirement that segregative intent or purpose be proven, but rather held that the required intent could be inferred from acts and policies of school authorities which had the natural and foreseeable effect of producing segregated schools. This is not a novel position. See, e. g., United States v. School District of Omaha, 521 F.2d 530, 535-36 (8th Cir. 1975), vacated on other grounds, --- U.S. ----, 97 S.Ct. 2905, 53 L.Ed.2d 1039 (1977) (per curiam); Hart v. Community School Board of Education, 512 F.2d 37, 50-51 (2d Cir. 1975); Morgan v. Kerrigan, 509 F.2d 580, 588-89 (1st Cir. 1974). Nor is it inconsistent with the principle of de jure segregation enunciated in Keyes and reiterated in Washington v. Davis. See Armstrong v. Brennan, 539 F.2d 625, 634-35 (7th Cir. 1976), vacated on other grounds, --- U.S. ----, 97 S.Ct. 2907, 53 L.Ed.2d 1044 (1977) (per curiam). In Washington v. Davis the Supreme Court admitted that "(n)ecessarily, an invidiously discriminatory purpose may often be inferred from the totality of relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. . . . Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution." 426 U.S. at 242, 96 S.Ct. at 2049. The majority's reference to the necessity or proving segregative intent from the totality of the circumstances was amplified by Justice Stevens in his concurring opinion:

Frequently the most probative evidence of intent will be...