Reed v. Rhodes

• Decision Date: 25 July 1980
• Docket Number: No. C73-1300.,C73-1300.
• Citation: 500 F. Supp. 363
• Parties: Robert Anthony REED, III, et al., Plaintiffs, v. James A. RHODES, Cleveland City Board of Education, Ohio State Board of Education, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

500 F. Supp. 363

Robert Anthony REED, III, et al., Plaintiffs, v. James A. RHODES, Cleveland City Board of Education, Ohio State Board of Education, et al., Defendants.

No. C73-1300.

United States District Court, N. D. Ohio, E. D.

July 25, 1980.

COPYRIGHT MATERIAL OMITTED

James L. Hardiman, Theresa Demchak, Cleveland, Ohio, Thomas I. Atkins, N.A.A. C.P., New York City, for plaintiffs.

Michael Sussman, Civil Rights Division, Dept. of Justice, Washington, D. C., for amicus curiae.

Daniel R. McCarthy, Cleveland, Ohio, for Special Master.

James P. Murphy, George I. Meisel, William H. Baughman, Jr., Squires, Sanders & Dempsey, Mark O'Neill, Weston, Hurd, Fallon, Paisley & Howley, John H. Bustamante, Cleveland, Ohio, for defendants.

MEMORANDUM OPINION AND ORDER

BATTISTI, Chief Judge.

The process of desegregating the Cleveland city school district is now in a critical phase. The fundamental issue presented to the Court is whether the Cleveland defendants have both the commitment and the capacity to effectively, efficiently, and lawfully implement this Court's Remedial Order of February 6, 1978 ("Remedial Order"), and thereby vindicate the Constitutional rights of the plaintiffs by eradicating the effects of past intentional segregative conduct. In addition, the Court is called upon to determine whether the defendants should be cited for civil contempt for their continuing failure to comply with court orders.

The issues are before the Court pursuant to two separate requests, one by the Special Master and another by the plaintiffs. On January 31, 1980, the Special Master submitted a lengthy report which detailed serious deficiencies in the implementation of the Remedial Order. The Special Master urged this Court "to conduct hearings regarding continuing problems which appear to be impairing full and effective implementation of the educational components and ancillary relief ordered by the Court as an integral part of its desegregation remedy." Report Regarding Remedial Order and Implementation Recommendations By the Special Master, filed January 31, 1980 ("Special Master's Report of January 31, 1980").

The seriousness of the problems addressed by the Special Master prompted this Court to conduct hearings on the Cleveland defendants' state of preparedness for Phase II implementation¹ from March 11 to 14, 1980. The Court scheduled additional hearings on April 1, 1980, to address the remaining aspects of the Special Master's Report of January 31, 1980.

On March 25, 1980, less than ten days after the commencement of Phase II desegregation, the plaintiffs filed a motion requesting this Court to order the members of the Cleveland Board of Education, the Superintendent of the Cleveland Public Schools, and the Deputy Superintendent for Desegregation Implementation to show cause why they should not be found in civil contempt for failure to comply with Court orders relating to desegregation implementation. The plaintiffs' motion proposed as a sanction the imposition of a "partial receivership."

In response to the plaintiffs' motion, this Court ordered that hearings on civil contempt be conducted commencing on April 7, 1980. This Court specified nineteen separate factual issues which would be aired at the hearings,² consisting of matters raised by both the plaintiffs and the Special Master. Also included were various areas that had been subjects of an investigation conducted by the Department of Justice. That investigation, undertaken pursuant to an order of this Court, found that probable cause existed in four areas to believe that the Cleveland defendants and their employees were in criminal contempt for failing to comply with orders of the Court. Report of the United States Pursuant to the Court's Order of April 2, 1979 Concerning Criminal and Civil Contempt, filed November 14, 1979.

At the April 1 hearings on the Special Master's Report of January 31, 1980, the local defendants requested that the separate hearings on civil contempt and the Special Master's Report be consolidated. Accordingly, the hearings were consolidated and beginning on April 7 and continuing until May 23, 1980 the Court received testimony from twenty-two witnesses, nineteen of whom are or have been members of the Cleveland Board of Education, top administrators of the school system responsible for desegregation implementation or employees of the system.

I.

A.

A review and evaluation of the evidence presented during the hearings on civil contempt and the Special Master's Report of January 31, 1980 cannot be undertaken without reference to the entirety of the record that has been developed in this case. For the past eight years, this Court has been continually and intimately involved in assessing the conduct of the Cleveland defendants. Additionally, the Court has had numerous opportunities during the trial and other hearings to evaluate the credibility of the defendants.

During this time, liability has been established, see 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) and a Remedial Order designed to eliminate the effects of intentional segregative conduct has been issued. See Reed v. Rhodes, 455 F.Supp. 569 (N.D.Ohio 1978), 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). The record that has been amassed in this ongoing litigation is truly staggering. It consists of over 1300 docket entries, countless thousands of pages of court proceedings and hearings before the Special Master, hundreds of transcripts of meetings of the Cleveland Board of Education, hundreds of motions and briefs, numerous reports and memoranda of the Special Master, and voluminous reports from the Office on School Monitoring and Community Relations ("OSMCR"), and from the Cleveland Board of Education on the status of desegregation preparedness and implementation. District Courts are uniquely situated to consider the "very difficult and subtle factual questions" which arise during the course of school desegregation controversies and "to appraise the societal forces at work in the communities where they sit." Columbus Board of Education v. Penick, 443 U.S. 449, 470-471, 99 S.Ct. 2941, 2983, 61 L.Ed.2d 666 (1979) (Stewart, J., concurring). A careful review of the record in this case, combined with an awareness of the history of this litigation, provide deep insights into the ability and willingness of the Cleveland Board of Education, the Superintendent, and the Deputy Superintendent for Desegregation Implementation to comply with orders of this Court designed to remedy past discriminatory conduct.

B.

It has been 2½ years since this Court issued a Remedial Order designed to accomplish two major objectives: the reassignment of pupils to fully integrated schools and classrooms, and the establishment of educational programs and other ancillary relief that will correct the effects of prior segregated schooling to the greatest extent possible. During this time, the Cleveland defendants repeatedly have represented to this Court that they are willing to cooperate in bringing about court-ordered desegregation and are taking all of the necessary steps to accomplish this objective. Recognizing that they are legally responsible for ensuring compliance with Court orders, the defendants claim that they "have endeavored to implement the Remedial Order-and other court mandates-with a spirit of willingness and enthusiasm." Supplemental Response to January 31, 1980 Special Master's Report, filed March 7, 1980.

These expressions of commitment to compliance with Court orders have been made by Superintendent Peter Carlin (Transcript of Hearings on Civil Contempt and the Special Master's Report of January 31, 1980, 4747, 4771 (Tr. 4747, 4771)). Deputy Superintendent for Desegregation Implementation Margaret Fleming (Tr. 3803, 3886), and the leadership of the Cleveland Board of Education. For example, Board President John Gallagher has stated publicly that one of his major goals is "to facilitate the implementation of a court order to desegregate in a manner that would be educationally sound and yet peaceful and orderly." This statement according to Mr. Gallagher, is "unequivocally ... more consistent with most of the views" he has expressed on the matter of desegregation implementation. (Tr. 4536). Mr. Gallagher alluded to a resolution (Tr. 4537) and a speech (Tr. 4538) to indicate his constant support for safe, secure, and efficient desegregation. However, public statements urging the community to remain peaceful cannot be equated with a commitment or willingness to diligently pursue a desegregation remedy. Obviously the safety of students and the elimination of racial violence is of great importance. But safety can never be the sole goal of desegregation. The Court remains firmly committed to the concept of equal educational opportunity as embodied in the Remedial Order.

The representations made to this Court concerning the "commitment" to comply with court orders cannot be considered at face value. Public statements outside the limited confines of the courtroom, and ultimately actions undertaken, are important indicia. They reflect, perhaps more accurately, the underlying attitudes which motivate conduct. The public statements of elected school officials in leadership roles are important indicators of the existence of a willingness and readiness to achieve desegregation. Those who exert strong influences on the community through the public forum and their official positions can contribute greatly to the success or failure of the desegregation effort. United States Commission on Civil Rights, Fulfilling the Letter and Spirit of the Law: Desegregation in the Nation's Public Schools (1976).

Despite the representations made to the Court, the public statements of the leadership of the Cleveland Board of Education do not...