Oliver v. Kalamazoo Board of Education

• Decision Date: 26 July 1972
• Docket Number: C. A. No. K-88-71.
• Citation: 346 F. Supp. 766
• Parties: Michelle OLIVER, by her Father and Next Friend, et al., Plaintiffs, v. KALAMAZOO BOARD OF EDUCATION, a body corporate, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

346 F. Supp. 766

Michelle OLIVER, by her Father and Next Friend, et al., Plaintiffs, v. KALAMAZOO BOARD OF EDUCATION, a body corporate, et al., Defendants.

C. A. No. K-88-71.

United States District Court, W. D. Michigan, S. D.

August 25, 1971.

Memorandum Opinion and Modified Preliminary Injunction October 7, 1971.

On Motion for Protective Order July 26, 1972.

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Howard & Howard, Kalamazoo, Mich., Nathaniel R. Jones, Gen. Counsel, NAACP, New York City, Dunnings & Gibson by Stuart J. Dunnings, Jr., Lansing, Mich. (Philip Hummer by Richard Enslen, Kalamazoo, Mich., of counsel), for plaintiffs.

Foster, Lindemer, Swift & Collins by James A. White, Lansing, Mich. (Theodore W. Swift, Lansing, Mich., of counsel), for Kalamazoo City Education Assn. and Michigan Education Assn., as amici curiae.

Ford, Kriekard, Staton & Allen by Arthur Staton, Jr., Gordon H. Kriekard and W. Fred Allen, Jr., Kalamazoo, Mich., Michael H. Jackson, Denver, Colo., for defendant, Kalamazoo Board of Education.

Eugene Krasicky, Asst. Atty. Gen., Lansing, Mich., for Michigan State Board of Education and John W. Porter.

OPINION OF THE COURT

FOX, Chief Judge.

The jurisdiction of this Court is properly invoked under 28 U.S.C. Sections 1331(a), 1343(3) and (4), this being a suit in equity authorized by Title 42 U. S.C. Sections 1983, 1988 and 2000d.

Jurisdiction is also invoked under 42 U.S.C. § 1981, and further invoked under 28 U.S.C. Sections 2201 and 2202, this being a suit for declaratory judgment seeking to declare the July 6, 1971 resolution of the Kalamazoo, Michigan, Board of Education unconstitutional, and other relief.

On August 12, 1971, this Court entered a Temporary Restraining Order enjoining the defendants, Kalamazoo Board of Education, its agents, employees and other persons acting in concert with them from implementing the voluntary open enrollment plan contained in the July 6th resolution of the Kalamazoo Board of Education, pending further hearing on plaintiffs' application for a preliminary injunction. Plaintiff's application seeks extension of the injunctive order of August 12, direction of implementation of the plan of school desegregation adopted by the Kalamazoo Board in its earlier resolution of May 7, 1971, and an injunction restraining the defendants from further school construction and requiring assignment of school faculty and staff personnel so as to achieve racial balance for the purpose of acquiring equal opportunity for education and quality education.

Having examined numerous documentary exhibits, attendance zone maps, administrative studies, and having heard the testimony of several witnesses over a two-day period, and the oral arguments of counsel, this Court finds the following factual circumstances:

The schools maintained and operated by the Kalamazoo Board of Education are racially segregated. There appears no dispute as to the fact that five elementary schools—Lincoln, Woodward, Edison, Roosevelt, and Northglade —are predominantly populated by black students, although the population of the Kalamazoo School District as a whole is merely approximately 17.6¹ percent black. The remaining twenty-four schools are predominantly "white" schools.

Thus we begin this decision confronted with the undisputed fact that Negro black children are being deprived of quality education in the Kalamazoo School System, and that early deprivation of innocent young children culminates in permanent, devastating, irreparable harm—harm incapable of subsequent correction. This is best described by the Brown v. Board of Education opinion of the United States Supreme Court, 347 U.S. 483 commencing on page 492, 74 S.Ct. 686, on page 691, 98 L.Ed. 873:

"In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 was written."

These are the words of Chief Justice Warren. (Continuing) "We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

"Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

"We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other `tangible' factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.

"In Sweatt v. Painter, supra 339 U. S. 629, 70 S.Ct. 848, 94 L.Ed. 1114, in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on `those qualities which are incapable of objective measurement but which make for greatness in a law school.' In McLaurin v. Oklahoma State Regents, supra 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149, the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: `. . . his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.'"

Skipping a little further.

"Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. namely, . . .

"`Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retard the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racially integrated school system.'"

That is a quote by the Court from a Kansas case.

"We conclude that in the field of public education the doctrine of `separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment."

The officials of the Kalamazoo Board of Education in the school system have, by their actions, admitted that these black children are being given an inferior education, psychologically damaging to their self-image and economically damaging to their ability to perform in an adult world. To a child, segregation "reinforces the idea that he is different, separate and inferior" . . and the cause of that segregation is irrelevant "as it would make no difference whether it be de jure or whether it be by circumstance . . . de facto", the harm remains. Davis v. School District of Pontiac, D.C., 309 F.Supp. 734, page 736

I am discussing now simply as to the effect on the child. I am not engaging in legal terminology. I am not making a precise lawyer-legalistic distinction. I am categorically saying that whether the segregation is de facto or de jure, the impact on each and every individual black child so situated is the same; and this is seventeen years after Brown.

On May 7, 1971 the Kalamazoo Board of Education adopted a plan for the redefinition of attendance areas designed to effect substantially increased racial integration. The parties are agreed that this plan, if implemented, would achieve this intended result.

Every school official and every member of the School Board who testified who were members of the Board at the time of the adoption of the May 7, 1971 plan, admitted this fact.

In June of 1971, a School Board election campaign was dominated by out-pourings of community resentment of and hostility towards the integration plan promulgated on May 7. As a result of the June 14, 1971 election, two new members were elected to the Board. These individuals had campaigned vigorously on a platform which promised the nullification of the May 7th resolution and the overturning of the integration plan incorporated therein.

At the very first Board meeting following the election, on the motion of Mr. Hoekstra, supported by Dr. Pattison who drafted the resolution, the newly constituted Board passed a resolution which effectuated this promise. In lieu of the structural changes provided under the extinguished plan, the new resolution of July 6th provided for a "Voluntary Open-Enrollment Plan."

As was observed in the most recent Tenth Circuit Keyes' case Keyes v. School District No. 1, 445 F.2d 990 cited by defense counsel in arguments, Judge Hill concluded that the experiences with the voluntary plans were far less than satisfactory.

Evidence of the effect of a voluntary plan may be gathered in part by the fact that up until seven days ago from July 6th forward, the...