Reed v. Rhodes

• Decision Date: 21 October 1981
• Docket Number: No. 80-3700,80-3700
• Citation: 662 F.2d 1219
• Parties: 1 Ed. Law Rep. 120 Robert Anthony REED III, et al., Plaintiffs-Appellees, v. James RHODES, et al., Defendants, and Ohio State Board of Education and Ohio Superintendent of Public Instruction, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1219

662 F.2d 1219

1 Ed. Law Rep. 120

Robert Anthony REED III, et al., Plaintiffs-Appellees, v. James RHODES, et al., Defendants, and Ohio State Board of Education and Ohio Superintendent of

Public Instruction, Defendants-Appellants.

No. 80-3700.

United States Court of Appeals, Sixth Circuit.

Argued June 19, 1981.

Decided Oct. 21, 1981.

Mark O'Neill, Weston, Hurd, Fallon, Paisley & Howley, Cleveland, Ohio, for defendants-appellants.

Thomas I. Atkins, Teresa Demchak, Gen. Counsel, NAACP, New York City, James L. Hardiman, Cleveland, Ohio, William E. Caldwell, Elizabeth McKanna, Ratner & Sugarmon, Memphis, Tenn., Solvita McMillan, Cleveland, Ohio, for plaintiffs-appellees.

James P. Turner, Walter W. Barnett, Joan A. Magagna, Dept. of Justice, Washington, D. C., for amicus curiae, U.S.A.

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

GEORGE CLIFTON EDWARDS, Jr., Chief Judge.

This is the Cleveland desegregation case which has been returned to this court after our remand to the District Court for new findings of fact concerning the question of intentional segregation on the part of the defendants-appellants, Ohio State Board of Education and Ohio Superintendent of Public Instruction. 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); Reed v. Rhodes on remand, 500 F.Supp. 404 (N.D.Ohio 1980). The District Judge on remand entered eight findings of fact which he viewed as establishing that the State Board and its Superintendent had knowledge of serious and intentional discrimination against black children in the Cleveland School system and continued to support that school system including its segregative practices through state financing in spite of that knowledge and in spite of a state law duty to withhold such financing. He held that this record represents intentional segregation within the meaning of Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), and Dayton Board of Education v. Brinkman This court's remand spelled out our understanding of intentional segregation as the Supreme Court has employed that concept in these cases (and others).

443 U.S. 526, 99 S.Ct. 2971, 61 L.Ed.2d 720 (1979). We affirm.

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 851 (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.

607 F.2d at 718.

In the Penick opinion, we remanded for the District Judge to make findings on the following:

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 851 (1977)).

583 F.2d at 818.

The District Judge's answers and detailed findings of fact concerning defendants' knowledge of and participation in intentional segregation in Cleveland are as follows:

A. State Defendants' Knowledge of Intentional Segregative Practices in the Cleveland Public School District.

The Court finds that the State defendants either (1) had knowledge of the existence of substantial intentional segregative practices by the Cleveland defendants, or (2) were confronted with information of such magnitude that such knowledge could be imputed to them; and that their failure to investigate and to correct the violations was intentionally supportive of such practices.

This finding is based on the following:

1) As early as 1930, the State defendants were aware that the Cleveland Board of Education was operating special schools for significant numbers of black children. (Plaintiffs' Exhibit 21). These separate schools were being maintained long after the General Assembly and Supreme Court of Ohio had declared separate schools to be abolished.

2) In the late 1950's the State defendants granted a waiver to the Cleveland Board of Education from compliance with minimum hour-per-day standards. This permitted the Cleveland defendants to provide less than the required daily hours of education to students in over-crowded schools, the great majority of whom were black. This Court has previously found this action to be an intentional segregative act on the part of both the State and Cleveland defendants. 422 F.Supp. 708, 793; 455 F.Supp. 546, 565 (remand opinion).

The state defendants repeatedly have contended that they never were advised of the number or identity of the schools, or the race of the pupils involved. However, evidence now indicates that the State defendants did request the "names of schools and grade levels" to be affected (Plaintiffs' Exhibit 28) and no evidence suggests that this 3) In 1967, a report on "Racial Isolation in the Cleveland Public Schools" was prepared by Dr. Willard Richan of Case Western Reserve for the United States Commission of Civil Rights. (Plaintiffs' Exhibit 224 (Trial)). This report detailed certain intentionally segregative acts performed by the Cleveland Board of Education. (Tr. 225). Unbelievably, the State defendants claim they were never aware of such a study until the original liability trial in 1976. (Tr. 223-224). However, evidence indicates that this study was mentioned in a public presentation to the State Board of Education on racial problems in the Cleveland public schools in April 1970. (Plaintiffs' Exhibit 46). Specifically, the question was posed to the State Board: "Do you make use, for example, of U. S. Civil Rights Commission findings on policies of the Cleveland School System?" (Id. at 2). The fact that no copy was requested and no questions were asked regarding the findings cannot shelter the state defendants from knowledge of the existence of the report. This represents another example of highly relevant information concerning segregation made available but not pursued by the state defendants.

evidence was not produced. Moreover, at all times the State Department of Education had access to relevant data regarding the schools to which waivers were granted.

4) In 1970, racial tension in the Collinwood area of Cleveland in Collinwood High School reached a point where the Cleveland Police were no longer able to control the violence and the National Guard had to be alerted and stationed in the area. (Tr. 311-314, 442; Plaintiffs' Exhibit 47; 48). The adamant refusal of the Cleveland Board of Education to reassign black students from overcrowded, all-black Glenville High School to adjacent, underutilized and predominantly white Collinwood High School contributed to this tension. (Tr. 3945-3960; Plaintiffs' Exhibit 60).

The racial problems confronting the Collinwood and Glenville High Schools in Cleveland prompted concerned parents to seek assistance from the federal government. On April 10, 1970, a letter was sent to civil rights specialist Leonard Hamilton of the Department of Health, Education and Welfare by the Glenville Task Force on Education and the Collinwood Committee of Black Concern. (Plaintiffs' Exhibit 55). That letter requested the withholding of federal funds from the Cleveland Board of Education because of various segregative practices, including: discriminatory gerrymandering of the Collinwood High School district; discriminatory transfers of black students out of Collinwood High School; disproportionate black faculty; and overcrowding of all-black Glenville High School resulting in inferior facilities and education. (Id.) It stated that members of the community would "be pleased to present evidence to support our claims of discriminatory practices in the Cleveland schools." (Id.)

A copy of this letter calling "for an investigation of discriminatory practices in the Cleveland School System" was sent by Mrs. Gaines to Robert Greer, Assistant Superintendent of Urban Education, on April 27, 1970. (Plaintiff's Exhibit 56). Despite receipt of this letter detailing specific claims of segregative practices, the State defendants undertook no investigative or corrective actions. The State Superintendent was "not really sure of what happened with HEW" (Tr. 570) and claims that he was not informed of the contents of the HEW letter (Tr. 572).

Fortunately, the Department of Health, Education and Welfare did undertake to investigate the complaint of the Collinwood and Glenville parent groups. Its investigation revealed that

(1) Some education services provided to students at Glenville are not equal to those provided at Collinwood, (2) pupil assignment and boundary practices have created an overcrowded school at Glenville and an underutilized school at Collinwood.

HEW's report concluded that "(t)he comparison between Glenville High School, 100 percent minority, and Collinwood High 30 percent minority, indicates that an unequal situation exists between the two schools," in (Plain...