Penick v. Columbus Bd. of Ed.
| Decision Date | 08 March 1977 |
| Docket Number | Civ. A. No. C-2-73-248. |
| Citation | 429 F. Supp. 229 |
| Parties | Gary L. PENICK et al., Plaintiffs, v. COLUMBUS BOARD OF EDUCATION et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
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Louis R. Lucas, Memphis, Tenn., Nathaniel R. Jones, New York City, Thomas I. Atkins, Boston, Mass., Richard M. Stein, J. Maynard Dickerson, William J. Davis, Leo P. Ross, Columbus, Ohio, for plaintiffs.
Samuel H. Porter, Curtis A. Loveland, Thomas P. Michael, Columbus, Ohio, Mark
O'Neill, Cleveland, Ohio, James W. McCarthy, Asst. Atty. Gen. of Ohio, Columbus, Ohio, for defendants.
This matter is before the Court following trial on the issue of liability. The Court sets forth hereinbelow its findings of fact and conclusions of law, in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.
The Court has listened to and then carefully examined the evidence in this most important case. After having considered the evidence and applied what I understand to be the law of the United States, I conclude that plaintiffs are entitled to judgment. It is the duty of the Court to set forth the reasons for arriving at that conclusion. In doing so, it is of the utmost importance that all concerned citizens are able to understand this decision clearly. I am well aware that many people are unfamiliar with and distressed by the law of the land which requires that school desegregation decisions, involving the education of our precious children, must often be made by a single judge rather than other governmental officials or the voters. Moreover, the language that the Court and lawyers traditionally use to communicate the reasons for our decisions is often unfamiliar and mysterious to those not trained in the law. In the writing that follows, the Court will strive to avoid language that may not be clear to all who choose to read this decision.
On the other hand, the Court cannot evade its responsibility to counsel in this case who have worked long, hard and sincerely in behalf of their clients. The legal authorities and precedents upon which the Court relies must be communicated to the lawyers. To facilitate a reading and understanding of this opinion, the Court has prepared an appendix containing a glossary of terms and a few maps.
The pages that follow contain a discussion of the evidence presented during the trial of this case, and an application of the law of the United States to that evidence. The Court will endeavor to describe the posture of the Columbus public schools at time of trial, and to examine how it came about. The complexity and the sheer volume of the evidence presented in this case have delayed this opinion long past the point at which the Court would have preferred to have rendered a decision. This delay in reaching a decision should not be construed to reflect a hesitancy on the part of the Court in determining the basic result required by the evidence and the law. I am firmly convinced that the evidence clearly and convincingly weighs in favor of the plaintiffs.
Since 1954, when the United States Supreme Court decided the now famous case Brown v. Board of Education ("Brown I"), 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, our citizens, parents, children, school officials, other local public officials, congressmen, presidents of the United States, and judges have to some degree or other grappled with the effect that this case and those cases that follow it have had upon a system of education that has been a significant contributor to the enormous progress of this nation.
Cases have arisen in the South and now the North, in rural as well as urban school districts, in Cincinnati, Cleveland, Dayton and now Columbus. A school desegregation problem is one we could all do better without, but there is no denying that it is just that — a problem for our community — a problem that simply won't go away if left alone. Although I have mentioned such problems in other areas of the country and Ohio, this case is unique; there are some identifiable similarities, but there are also marked differences. This fact is mentioned only to relate that this decision is based on those facts brought out in this trial and no others.
As mentioned above, I am sure there are those who earnestly believe that matters such as this should not be the subject of court decisions. Plaintiffs have claimed that they and the class of persons whom they represent have been denied the equal protection of the laws by defendants — thus, a constitutional issue is presented to the Court. Counsel for the Columbus defendants and for the State of Ohio defendants do not dispute the Court's jurisdiction. However, as I view it, the real reason that courts are in the school desegregation business is the failure of other governmental entities to confront and produce answers to the many problems in this area pursuant to the law of the United States. This Court is quick to admit that the litigation model is not the most efficient way to solve problems of far-reaching social impact, but our courts must always protect the constitutional rights of all our citizens.
Therefore, this Court in this case has done its best to find the facts and make reasonable conclusions. If my conclusions are in error, the error will be easy for those who review to discern. It is my duty as a judge of this Court to follow the law — and likewise it now is the duty of the citizens of this community to follow this decision so long as it is the law.
The Court has jurisdiction of the issues pursuant to 28 U.S.C. §§ 1331(a) and 1343(3) and (4). The civil rights claimed to have been violated are those secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The parties at the trial of this case are as follows and will be so identified in these findings and conclusions:
Intervening Plaintiffs. The intervening plaintiffs are 11 students attending schools in the Columbus Public Schools and their parents, representing a class of persons similarly situated. This plaintiff group was permitted to intervene in March, 1975. It is represented by counsel associated with the national office of the National Association for the Advancement of Colored People, one of whom was designated as lead counsel for all plaintiffs by order of the Court. The intervening plaintiffs are sometimes also referred to herein as the "intervenors" or the "plaintiffs."
Original Plaintiffs. The original plaintiffs are 14 students in the Columbus Public Schools and their parents, representing a class of persons similarly situated. This action was originally filed on behalf of these students and parents. Following the intervention and the designation of lead counsel, the original plaintiffs and their counsel presented evidence at trial on certain issues that they believed were not included within the case presented by the intervening plaintiffs.
Columbus Defendants. The Columbus Board of Education, its seven elected members, and Dr. John Ellis, Superintendent of the Columbus Public Schools, are collectively referred to herein as the Columbus defendants.
State Defendants. The State Board of Education, State Superintendent of Public Instruction Dr. Martin Essex, Governor James A. Rhodes, and Attorney General William J. Brown are also named defendants. For ease of reference the will refer to all four of these defendants.
The case was filed on June 21, 1973, by Gary L. Penick and 13 other named children (or their parents) who are students in the Columbus school system. These plaintiffs claimed that 89.5 million dollars earmarked for school construction had to be expended in such a manner as to require the Columbus defendants to carry out affirmative action to guarantee integrated educational experiences. Looking to the Board's resolutions germane to the bond issue from which the construction funds were generated, plaintiffs alleged that those resolutions, the United States Constitution, and a claimed Board reluctance to abide the requirements of its resolutions in their construction planning processes entitled plaintiffs to declaratory and other equitable relief.
On October 9, 1973, the original plaintiffs moved for a preliminary injunction to stop the construction program. The motion was heard by Judge Carl B. Rubin of this Court on April 15 and 17, 1974. At the time of the hearing, only the original plaintiffs and the Columbus defendants were parties, the Court having previously dismissed the State defendants upon the plaintiffs' own motion. After presenting evidence but before resting, the plaintiffs moved to withdraw their motion and sought leave to file an amended complaint. The Court permitted the withdrawal and amendment.
The original plaintiffs filed their amended complaint on July 19, 1974, renaming the State defendants and adding the Franklin County Recorder as a defendant. A second amended complaint was filed on October 22, 1974.
The second amended complaint was styled as a class action. It alleged that the Columbus defendants had intentionally segregated the public schools by creating and maintaining a neighborhood school policy notwithstanding a segregated housing pattern in the city. The new school construction program was claimed to further segregation. The original plaintiffs also claimed that the Columbus defendants had segregated the schools by using optional attendance areas, by segregating teachers and principals, by failing to desegregate, and by conspiring with the County Recorder to violate the Fair Housing Law of 1968. The State defendants were alleged to be liable for failing to bring about the desegregation of the Columbus schools. The plaintiffs sought an order requiring desegregation of the Columbus Public Schools.
The motion to intervene was filed on February 5, 1975, by NAACP...
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Freeman v. Pitts
...in part on the finding that the school board " 'never actively set out to dismantle [the] dual system,' " Penick v. Columbus Bd. of Education, 429 F.Supp. 229, 260 (SD Ohio 1977)); Dayton II, supra, 443 U.S. at 534, 99 S.Ct., at 2977 (adopting Court of Appeals holding that the "intentionall......
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Columbus Board of Education v. Penick
...students in the system were black. About 70% of all students attended schools that were at least 80% black or 80% white. 429 F.Supp. 229, 240 (SD Ohio 1977). Half of the 172 schools were 90% black or 90% white. 583 F.2d 787, 800 (CA6 1978) . Fourteen named students in the Columbus school s......
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Reed v. Rhodes, C73-1300.
...aff'd 607 F.2d 714 (6th Cir. 1979), cert. denied, 445 U.S. 935, 100 S.Ct. 1329, 63 L.Ed.2d 770 (1980); Penick v. Columbus Board of Education, 429 F.Supp. 229 (S.D. Ohio 1977), aff'd in relevant part, 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979); Brinkman v. Gilligan, 583 F.2d 243 (6th......
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Jenkins by Agyei v. State of Mo.
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