Oliver v. Michigan State Bd. of Ed.

Decision Date09 December 1974
Docket NumberNos. 74-1104,74-1105,s. 74-1104
Citation508 F.2d 178
PartiesMichelle OLIVER et al., Plaintiffs-Appellees, v. MICHIGAN STATE BOARD OF EDUCATION et al., Defendants-Appellants, and KalamazooBoard of Education et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

Frank J. Kelley, Atty. Gen. of Mich., Robert A. Derengoski, Eugene Krasicky, George L. McCargar, Jr., Thomas F. Schimpf, Lansing, Mich., for State Board of Education.

Louis R. Lucas, Ratner, Sugarmon & Lucas, Memphis, Tenn., Nathaniel R. Jones, Gen. Counsel, NAACP, New York City, Philip L. Hummer, Richard A. Enslen, Kalamazoo, Mich., James A. White, Foster, Lindemer, Swift & Collins, Lansing, Mich., for plaintiffs-appellees.

Arthur Staton, Jr., Ford, Kriekard, Staton & Allen, Kalamazoo, Mich., Michael H. Jackson, Denver, Colo., for Kalamazoo Board of Education.

Before WEICK, CELEBREZZE, and PECK, Circuit Judges.

CELEBREZZE, J., delivered the opinion of the Court, in which PECK, J., joined. WEICK, J., (pp. 187-197) filed a dissenting opinion.

CELEBREZZE, Circuit Judge.

These appeals present the merits of a school desegregation suit brought against the Kalamazoo Board of Education, its Members, and its Superintendent, and against the Michigan State Board of Education and its Superintendent. 1 The District Court's Order grants permanent injunctive relief in the form of a desegregation plan adopted by the Kalamazoo Board of Education on May 7, 1971, but revoked on July 6, 1971. The injunction requires the State and local defendants to refrain from further segregative actions and inactions. The District Court assessed the costs of the proceedings against Appellants, but left the question of attorney fees for subsequent resolution.

The State and local defendants filed appeals, which have been consolidated in this proceeding. The issues are essentially three: whether the District Judge should have recused himself, whether the District Court's standard of liability was incorrect, and whether the District Court's findings were clearly erroneous.


Appellants moved, pursuant to 28 U.S.C. 144 (1968), 2 that the District Judge, Noel P. Fox, recuse himself because of his personal bias or prejudice in the case. The affidavit which accompanied the recusal motion contained numerous allegations about the propriety of certain rulings of the District Judge. Finding that the allegations failed to establish the personal bias or prejudice required to sustain a recusal motion, the District Court denied the motion.

Appellants' affidavit included allegations that the District Judge held 'an unshakable conviction' that there is no distinction between de facto and de jure segregation for constitutional purposes; that the relief granted was biased in favor of the black plaintiffs and prejudicial to poor whites; that personal bias for the plaintiffs was demonstrated by the manner in which the parties were characterized and the treatment accorded the irrelevant and erroneous finding was irrelevant and reeoneous finding was made with regard to certain advice given by the defendants' attorney; that a Motion for Protective Order filed by plaintiffs was given improper treatment; and that there was undue delay in holding the trial on the merits of the case. All these allegations relate to, and are sought to be supported by, proceedings in and rulings by the District Court.

Treating the facts alleged in the affidavit as true and looking only to the sufficiency of those facts in considering the recusal motion, Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921), we find that the allegations do not suffice to support a claim of personal bias or prejudice on the part of the District Judge. As we have stated previously:

The bias or perjudice which will disqualify a judge must be 'personal' bias or prejudice as distinguished from a judicial one . . ..

It is not sufficient if the alleged bias or prejudice arises out of the judge's background and associations rather than his appraisal of the complaining party personally . . ..

Nor is it sufficient that the alleged bias or prejudice arises from the judge's view of the law, which may have been expressed by him in some prior case . . ..

A judge is not disqualified merely because he believes in upholding the law, even though he says so with vehemence . . ..

Adverse rulings during the course of the proceedings are not by themselves sufficient to establish bias and prejudice. Knapp v. Kinsey, 232 F.2d 458, 466 (6th Cir. 1956).

See United States v. Amick, 439 F.2d 351, 369 (7th Cir. 1971); Plaquemines Parish School Board v. United States, 415 F.2d 817, 824-825 (5th Cir. 1969); Tynan v. United States, 126 U.S.App.D.C. 206, 376 F.2d 761, 764-765 (1967). We affirm the District Court's denial of the recusal motion.

Standard of Liability

Appellants challenge the standard of liability applied by the District Court, asserting that the District Court held them responsible for remedying de facto segregation and ignored the requirement that de jure segregation be shown as a predicate to a desegregation order.

We agree with Appellants that no remedy may be ordered when no constitutional violation has occurred. The federal courts are not free to intrude on the legitimate prerogatives of elected school officials. But the federal courts are guardians of constitutional rights and will protect minorities and majorities alike when they are deprived of the equal protection of the laws, despite an inevitable intrusion into decisions left to public officials in the absence of a constitutional violation. Given a constitutional violation, a remedy is not only proper but necessary. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 90 L.Ed. 873 (1954), 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971).

We need not confront the question whether de facto segregation in a public school district establishes a constitutional violation of the Equal Protection Clause. 3 The District Court explicitly adopted a test dependent on purposeful segregation by public school officials:

For the purposes of this case, the court assumes that the plaintiffs must establish that the defendants are guilty of de jure segregation of the Kalamazoo public schools.

. . . .pos

The major legal elements and conditioning factors of the constitutional tort of de jure segregation are reasonably clear. Under the Keyes theorem, in addition to showing that segregated schools exist, plaintiffs should establish (1) that the state to a significant degree caused or maintained these segregated conditions, and (2) that the state intentionally, i.e., purposefully, created or maintained them . . ..

Under Keyes, in an intentional case, to be guilty of a constitutional violation, the state and local authorities must have in fact caused or maintained the segregated conditions which are complained of. Under this theory, it is a complete defense that the state and local authorities have not at all caused or maintained these conditions. Similarly, the state will not be held legally responsible if it has only occasionally committed segregative acts and these acts are of trivial importance and bear no significant relation to the modern situation.

Rather, the standard must be that the state and local agencies to a substantial degree contributed to the creation or maintenance of segregated schooling in Kalamazoo . . ..

Under Keyes, defendants must not only have caused the schools to be segregated, but must have intentionally caused them to be segregated . . ..

Of course, in order to make its ultimate determination on the issue of intention, the court must fully consider the evidence and arguments presented by all the parties, including the claim by the Kalamazoo school board that it was resolutely applying a racially neutral neighborhood school policy . . ..

It is established that where an appropriate factual showing has been made, including a showing that an existing segregated situation is to a significant extent the natural probable, and actual result of the actions and inactions of the state and local agencies, the plaintiffs have laid an evidentiary foundation for the conclusion that the results, segregated schools, were intended to be reached by these authorities. 368 F.Supp. 143, 157, 159, 161, 162.

We find this to be a correct formulation of the de jure test, flowing directly from our holdings in Bradley v. Milliken 484 F.2d 215, 222, 241-242 (6th Cir. 1973) (en banc), rev'd on other grounds, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (July 25, 1974), and Davis v. School District of Pontiac, 443 F.2d 573 (6th Cir. 1971), aff'g 309 F.Supp. 734, 744 (E.D.Mich.1970), cert. denied, 404 U.S. 913, 92 S.Ct. 233, 30 L.Ed.2d 186 (1971), cited with approval in Keyes v. School District No. 1, 413 U.S. 189, 210, 93 S.Ct. 2686, 37 L.Ed.2d 1043 (1973). See also Brinkman v. Gilligan, 503 F.2d 684 (6th Cir. 1974); United States v. Board of School Commissioners, 474 F.2d 81 (7th Cir. 1973), aff'g 332 F.Supp. 655 (S.D.Ind.1971), cert. denied, 413 U.S. 920, 93 S.Ct. 3066, 37 L.Ed.2d 1041 (1973). Although our conclusion regarding a cross-district remedy was reversed by the Supreme Court in Milliken v. Bradley, the Supreme Court unanimously affirmed our determination that de jure segregation had been proven within the city of Detroit, on the basis of the same standard used by the District Court in this case. 4

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. 5 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...

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