Reed v. Rhodes, C73-1300.
| Decision Date | 23 September 1980 |
| Docket Number | No. C73-1300.,C73-1300. |
| Citation | 500 F. Supp. 404 |
| Parties | Robert A. REED et al., Plaintiffs, v. James A. RHODES et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
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James L. Hardiman, Theresa Demchak, Cleveland, Ohio, Thomas I. Atkins, NAACP, New York City, for plaintiffs.
Michael Sussman, Civ. Rights Div., Dept. of Justice, Washington, D. C., for amicus curiae.
Daniel R. McCarthy, Cleveland, Ohio, Special Master.
James P. Murphy, George I. Meisel, William H. Baughman, Jr., Squire, Sanders & Dempsey, Cleveland, Ohio, Mark O'Neill, Weston, Hurd, Follon, Paisley & Hawley, John Bustamante, Cleveland, Ohio, for defendants.
On August 23, 1979, the Court of Appeals for the Sixth Circuit remanded for further consideration this Court's findings that the Ohio State Board of Education and the Superintendent of Public Education were liable for the intentional segregation of the Cleveland public schools. Reed v. Rhodes, 607 F.2d 714 (6th Cir. 1979), cert. denied, 445 U.S. 935, 100 S.Ct. 1329, 63 L.Ed.2d 770 (1980). Accordingly, additional hearings were held from April 21 to April 24, 1980 on the issue of whether the State defendants violated the plaintiffs' Fourteenth Amendment right to equal protection of the laws.
In 1976, this Court found both the Cleveland Board of Education, its members, and Superintendent ("Cleveland defendants") and the State Board of Education, its members and Superintendent ("state defendants") liable for intentionally and deliberately operating a racially dual public school system in the City of Cleveland. 422 F.Supp. 708 (N.D.Ohio 1976). This determination of liability was appealed to the Court of Appeals for the Sixth Circuit, which remanded the case back to this Court for further consideration in light of the intervening Supreme Court decision of Dayton Board of Education v. Brinkman, (Dayton I), 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 85 (1977). 559 F.2d 1220 (6th Cir. 1977).
Upon reconsideration, the original findings were carefully reviewed, affirmed and readopted, 455 F.Supp. 546 (N.D.Ohio 1978) and a Remedial Order was issued. 455 F.Supp. 569 (N.D.Ohio 1978). The state defendants again appealed from both the Remand and Remedial Orders.
In its August 23, 1979 decision, the Court of Appeals affirmed this Court's findings of intentional systemwide segregation with respect to the Cleveland defendants. Reed v. Rhodes, 607 F.2d 714 (6th Cir. 1979), aff'g in relevant part, 422 F.Supp. 708 (N.D.Ohio 1976), cert. denied, 445 U.S. 935, 100 S.Ct. 1329, 63 L.Ed.2d 770 (1980). However, with regard to the liability of the state defendants, the Sixth Circuit Court of Appeals wrote:
While in some respects the findings of segregative purpose on the part of the state serve to meet the Dayton requirements, Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 85 (1977), Dayton appears to us to negate a state liability finding entered principally on the ground of failure of the state to compel its subdivision to comply with the United States Constitution. As we have indicated in the Columbus opinion, Penick v. Columbus Board of Education, 583 F.2d 787 (6th Cir. 1978), aff'd 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979), knowledge by the state of intentional segregative practices on the part of the local board and intentional support of the local board in pursuing such practices appear to be requirements for a finding of constitutional violation. For these reasons, the question of state board liability is again remanded to the District Court for answers to the questions posed in Penick v. Columbus Board of Education.
In Penick v. Columbus Board of Education, 583 F.2d 787 (6th Cir. 1978), aff'd 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979), the Court of Appeals developed the following guidelines to determine the question of state liability:
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 reasons for de facto segregation, and 5) the effect of findings if any, under 1, 2, 3 and 4 above, as suggested in Dayton Board of Education v. Brinkman, 433 U.S. 406, 420, 97 S.Ct. 2766, 2775, 53 L.Ed.2d 85 (1977).
On remand, the plaintiffs' basic position is that the state defendants possessed substantial information regarding the existence of intentional segregation in the Cleveland public school district. Despite this information, they structured and operated the State Board of Education and the Department of Education in a manner which permitted them to fail to act upon this relevant and extensive information regarding the existence of dual educational systems in Cleveland and other municipalities in Ohio. The plaintiffs claim that such structuring and operation cannot serve to immunize the state defendants from liability solely because of the resulting lack of knowledge of segregative practices. The plaintiffs also contend that the information of intentional racial segregation in the possession of the state defendants is so overwhelming that knowledge can be imputed.
The plaintiffs are joined by the Cleveland defendants and the Department of Justice appearing as amicus, who argue that the state defendants had substantial knowledge of intentional segregative acts in the Cleveland public school district. Given this knowledge, the state defendants unlawfully and deliberately failed to enforce the State of Ohio's anti-segregation laws and supported intentional racial segregation in Cleveland.
The state defendants defend their actions by stressing the distinction between de jure and de facto segregation. They admit an awareness of racially unbalanced schools within Cleveland and large urban areas in Ohio. However, because such imbalances were considered de facto and therefore not violative of the Constitution, there was no obligation to investigate or take corrective action. The State defendants also claim that they possessed no knowledge of the Cleveland defendants' de jure practices, and defend their administration and procedures in the desegregation area.
During the past decade, numerous courts have determined that local officials of Ohio public school districts engaged in intentional segregative practices in violation of the Fourteenth Amendment. See e. g., Reed v. Rhodes, 422 F.Supp. 708 (N.D.Ohio 1976), 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 Cir. 1978), aff'd, 443 U.S. 526, 99 S.Ct. 2971, 61 L.Ed.2d 720 (1979). However, this intentional racial segregation in Ohio public schools is not a new phenomenon. It has deep historical roots in the laws and traditions of the State of Ohio which for many years treated blacks as inferior beings and second-class citizens. Recounting this history does not make pleasant reading but is critical to developing a proper understanding of the State's involvement in segregation. A brief summary will suffice.
Throughout the nineteenth century, the constitutions and laws of the State of Ohio were used to "regulate black and mulatto persons." 29 Stat. 439 (See Plaintiffs' Exhibit 3). Blacks were denied the right to vote, Const. of 1802, art. IV, § 1, Const. of 1851, art. V, § 1, the opportunity to serve on juries, Laws of Ohio 26:43, 29:43, the ability to gain a legal settlement, Laws of Ohio 27:35 and the ability to testify in any court proceeding involving a white. See, e. g. Gray v. The State, 4 Ohio Rep. 353 (1831). The laws also placed restrictions on the right of a "Negro or mulatto person" to "emigrate or settle within this state," 29 Stat. 439, and established criminal and civil penalties designed to secure the right of slave owners in slaveholding states to recover slaves who escaped to Ohio. 37 Stat. 38. State law also was used "to prevent the amalgamation of the white and colored races" by declaring it unlawful "for any person of pure white blood to intermarry ... with any ... person having a distinct and visible mixture of African blood." Laws of Ohio 58:6.
Racial discrimination in the area of public education also was authorized by state law. The foundations for the public school system were established in 1821, Laws of Ohio 19:5, but black children were totally excluded from public education until 1848. (See Plaintiffs' Exhibit 1; 2). The early history of public education in Ohio was summarized by the Ohio Supreme Court in Van Camp v. Board of Education of Logan, 9 Ohio St. 406 (1859):
Prior to 1848 there was not any legislative provision in Ohio for the education of any but the white youth resident in the various districts. Most of the previous statutes-and they are quite numerous-merely make provision for the instruction of the white youth, and exempt the property of blacks and mullatoes from taxation for school purposes, while some, like the act of February 10, 1829, Laws of Ohio 27:72 in express terms, exclude blacks and mulattoes from the schools.
It was not until 1848 that the State of Ohio passed legislation to provide public education for children of black residents. 2 Curwen Rev.Stat. 1428 (Plaintiffs' Exhibit 4). Shortly thereafter, a law "conceived in a more liberal and patriotic spirit", Van Camp v. Board of Education of Logan, supra at 409, was enacted which required local boards of education "to establish within their respective jurisdictions, one or more separate schools for colored children."...
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