Reed v. Rhodes

• Decision Date: 23 August 1979
• Docket Number: 76-2604,Nos. 76-2602,78-3156 and 78-3157,s. 76-2602
• Citation: 607 F.2d 714
• Parties: Robert Anthony REED, III et al., Plaintiffs-Appellees, v. James A. RHODES et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 714

607 F.2d 714

Robert Anthony REED, III et al., Plaintiffs-Appellees, v. James A. RHODES et al., Defendants-Appellants.

Nos. 76-2602, 76-2604, 78-3156 and 78-3157.

United States Court of Appeals Sixth Circuit.

Argued Aug. 4, 1978.

Decided Aug. 23, 1979.

Thomas I. Atkins, Boston, Mass., Joseph P. Meissner, James L. Hardiman, Cleveland, Ohio, Nathaniel R. Jones, N.A.A.C.P., New York City, Louis R. Lucas, Memphis, Tenn., Teresa Demchak, Cleveland, Ohio, Jeremiah Glassman, John C. Hoyle, Civ. Rights Div., Dept. of Justice, Washington, D. C., Vincent Campanella, Cleveland, Ohio, for plaintiffs-appellees.

George I. Meisel, Charles F. Clarke, James P. Murphy, Squire, Sanders & Dempsey, John H. Bustamante, Bustamante, Donohoe & Palmisano Co., L.P.A., Cleveland, Ohio, James E. Michael, Roy F. Martin, Asst. Attys. Gen., Columbus, Ohio, Mark O'Neill, Weston, Hurd, Fallon & Howley, James L. McCrystal, Jr., Cleveland, Ohio, for defendants-appellants.

Victor DeMarco, Dennis Kelly, Jones, Day, Reavis & Pogue, Cleveland, Ohio, for

Cleveland Trust Co. and National City Bank.

John R. Climaco, Shimon Kaplan, Cleveland, Ohio, for amicus curiae The Brotherhood of Cleveland Public School Custodians and Employees, Local Union 777.

Wayne G. Hawley, American Civil Liberties Union of Cleveland Inc., Cleveland, Ohio, amicus curiae American Civil Liberties Union.

John Hoyle, Dept. of Justice, Civil Div., Appellate Section, Washington, D. C., for amicus curiae U. S.

Eleanor Rickey-Stevens, Cleveland, Ohio, amicus curiae.

Before EDWARDS, Chief Judge, and LIVELY and ENGEL, Circuit Judges.

EDWARDS, Chief Judge.

In this opinion we review the findings of the District Judge and a lengthy record of trial in a case charging the Cleveland Board of Education and the State Board of Education of Ohio with operating a school system which was unconstitutionally segregated on the basis of race. The District Judge found that in 1973, when this case was filed, the Cleveland School Board was operating such a dual school system:

In 1973, the District maintained 170 regular elementary, junior high, and senior high schools for its pupils, approximately 57% Of whom were black. Of these 170 schools, 67 had student populations which were 90-100% White and 83 had student populations which were 90-100% Black. Moreover, approximately 92% Of all black students in the system attended one or another of these 83 virtually all-black schools. Defendants have conceded the existence of systemwide segregation in the Cleveland School District.

Reed v. Rhodes, 455 F.Supp. 546, 553 (N.D.Ohio 1978). (Hereinafter Reed II.)

The District Judge recognized, however, that statistical proofs of segregated schools, absent intentional segregation on the part of school authorities, did not constitute violation of the Fourteenth Amendment's prohibition against denial of the equal protection of the law. On the issue of the Cleveland School Board's intentions during the years preceding the year of trial, 1973, he found, "proof of systemwide constitutional violations (which) supports a finding that the Cleveland school officials are operating a dual school system, entitling plaintiffs to comprehensive, systemwide relief." Reed II, supra at 552.

The District Judge's lengthy opinions reviewed over 200 school board policies, plans, decisions and episodes which he found to represent intentional segregation. With reference to the Supreme Court's then most recent school segregation decision, Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977), he held that "The 'segregative effect . . . on racial distribution' (Dayton, supra at 420, 97 S.Ct. 2766) extends chronologically and geographically throughout the district." Reed II, supra at 552.

Our independent review of this record demonstrates that it supports findings of intentional segregative practices having substantial systemwide effect. We affirm both the liability finding and the District Judge's holding that the plaintiffs are entitled to systemwide relief against the Cleveland School Board for the unconstitutional practices found herein.

The District Judge also found that in 1964 the Cleveland Board of Education was operating a dual school system consisting of schools for black children and schools for white children. He also found that from 1964 down to the date of trial, the School Board had a clear duty to desegregate the admittedly segregated school system it was operating in 1964. He further found that in the succeeding years the School Board not only did not act to desegregate the schools, but on the contrary, acted so as to "exacerbate" segregation. Reed v. Rhodes, 422 F.Supp. 708, 792 (N.D.Ohio 1976) (hereinafter Reed I.) He termed the Board's policies as "containment" of black students and found them to be intentional and to have a systemwide impact. Reed II, supra Our review of this record supports the District Judge's findings of fact in this regard and we find no fault in his conclusions of law, as stated above. The findings of fact certainly cannot be termed clearly erroneous, and the conclusions of law which pertain to his 1973 findings and his 1964 findings are both entirely consistent with the opinions of the Supreme Court in Columbus Board of Education v. Penick, --- U.S. ----, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979), and Dayton Board of Education v. Brinkman, --- U.S. ----, 99 S.Ct. 2971, 61 L.Ed.2d 720 (1979). In the Columbus case, in his opinion for the Court, Justice White said:

at 556-57; Reed I, supra at 722, 726-27, 739, 759, 762, 769, 773, 782, 784, 788.

(T)he District Court repeatedly emphasized that it had found purposefully segregative practices with current, systemwide impact. 429 F.Supp. (229), at 252, 259-260, 264, 266; Pet.App. 95; 583 F.2d (787), at 799. And the Court of Appeals, responding to similar arguments, said:

"School board policies of systemwide application necessarily have systemwide impact. 1) The pre-1954 policy of creating an enclave of five schools intentionally designed for black students and known as 'black' schools, as found by the District Judge, clearly had a 'substantial' indeed, a systemwide impact. 2) The post-1954 failure of the Columbus Board to desegregate the school system in spite of many requests and demands to do so, of course, had systemwide impact. 3) So, too, did the Columbus Board's segregative school construction and siting policy as we have detailed it above. 4) So too did its student assignment policy which, as shown above, produced the large majority of racially identifiable schools as of the school year 1975-1976. 5) The practice of assigning black teachers and administrators only or in large majority to black schools likewise represented a systemwide policy of segregation. This policy served until July 1974 to deprive black students of opportunities for contact with and learning from white teachers, and conversely to deprive white students of similar opportunities to meet, know and learn from black teachers. It also served as discriminatory, systemwide racial identification of schools." 583 F.2d, at 814.

Nor do we perceive any misuse of Keyes (Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973)), where we held that purposeful discrimination in a substantial part of a school system furnishes a sufficient basis for an inferential finding of a systemwide discriminatory intent unless otherwise rebutted, and that given the purpose to operate a dual school system one could infer a connection between such a purpose and racial separation in other parts of the school system. There was no undue reliance here on the inferences permitted by Keyes, or upon those recognized by Swann (Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971)). Furthermore, the Board was given ample opportunity to counter the evidence of segregative purpose and current, systemwide impact, and the findings of the courts below were against it in both respects. 429 F.Supp., at 260; Pet.App. 95, 102, 105.

Columbus Board of Education v. Penick, supra, --- U.S. at ----, 99 S.Ct. at 2952 (footnotes omitted).

If we substitute Cleveland for Columbus in the Supreme Court language quoted above, and substitute in numbered sentence 1) "an east side enclave of many schools" for the phrase "an enclave of five schools," and in numbered sentence 2), substitute "post-1964" for "post-1954," and in numbered sentence 4), the school years "1973 and 1975" for the school year "1975-1976," the paragraph approved from this court's Columbus opinion becomes directly applicable to the Cleveland case.

When we turn to the defendant State Board of Education, the situation we find in the Cleveland case again parallels that which we found in the Columbus case.

On the heels of the Supreme Court decision in Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977), this court remanded the original liability findings of the District Judge for reconsideration under the standards mandated therein. The District Judge chose to respond to this court's remand by joining his response with his remedial orders. In the year which intervened, this court was required to deal with the Dayton standards as they apply to the question of state liability in somewhat greater detail and specificity:

While we believe that what we have quoted from the District Judge's opinion must be regarded as a general finding of intentional support of segregation by the State Board, it may well be argued that the Dayton opinion requires more detailed findings of fact pertaining to 1) the State Board's knowledge (if any) of the Columbus Board's intentional segregative practices, 2) the State Board's failure to protest or restrain them by withholding funds, 3) the State Board's continuance of support in the face of such knowledge, 4) the motivation of the State Board in failing to investigate the...