U.S. v. Board of School Com'rs of City of Indianapolis, Indiana

Citation503 F.2d 68
Decision Date03 October 1974
Docket NumberNos. 73-1968,s. 73-1968
PartiesUNITED STATES of America, Plaintiff-Appellee, Donny Brurell Buckley et al., Intervening Plaintiffs-Appellees, v. BOARD OF SCHOOL COMMISSIONERS OF the CITY OF INDIANAPOLIS, INDIANA, et al., Defendants-Appellants. through 73-1984.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

William C. Graves and Brian K. Landsberg, Attys. U.S. Dept. of Justice, Washington, D.C., Stanley B. Miller, U.S. Atty., Donald P. Bogard, Deputy Atty. Gen., Donald A. Schabel, Fred S. White, Richard D. Wagner, William M. Evans, William F. Harvey, Indianapolis, Ind., for appellant.

John O. Moss, John Preston Ward, Indianapolis, Ind., for appellee.

Craig Eldon Pinkus, R. Davy Eaglesfield, III, Indianapolis, Ind., for amicus curiae.

Before SWYGERT, Chief Judge, KILEY, Senior Circuit Judge, and SPRECHER, Circuit Judge.

SPRECHER, Circuit Judge.

This is a school desegregation case originally brought by the United States against the Board of School Commissioners of Indianapolis, Indiana, but later expanded to include as defendants school districts located in the surrounding metropolitan area. These 17 separate appeals raise a host of divergent issues.

I THE BACKGROUND

The United States initiated this action on May 31, 1968, pursuant to section 407(a) and (b) of Title IV, of the Civil Rights Act of 1964 (42 U.S.C. 2000c-6(a) and (b)). The complaint charged the Board of School Commissioners for the City of Indianapolis with racial discrimination in the assignment of faculty and students.

The faculty portion of the charge was resolved first. On August 5, 1968, the district court concluded (pursuant to stipulation by the parties that racial factors had been considered in the assignment of teachers and staff members) that racial composition of faculty and staff deprived students of equal protection in violation of the Fourteenth Amendment. The court entered a consent decree ordering remedial injunctive relief commencing with the school year of 1968-69. Faculty and staff desegregation is one 'important aspect of the basic task of achieving a public school system wholly free from racial discrimination.' United States v. Montgomery County Board of Education, 395 U.S. 225, 232, 89 S.Ct. 1670, 1674, 23 L.Ed.2d 263 (1969).

Public school teachers in Indianapolis then brought a class action in an Indiana state court and obtained a temporary restraining order to prevent transfers of teachers and staff without the consent of the teachers involved. Defendant school board and its members removed the case to the federal district court, which promptly dissolved the restraining order. Burns v. Board of School Commissioners, 302 F.Supp. 309 (S.D.Ind.1969), aff'd, 437 F.2d 1143 (7th Cir. 1971).

The student portion of the 1968 case was tried before the court on July 12-21, 1971. In accordance with Brown v. Board of Education (Brown I), 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the court found that the Indianapolis school board was deliberately operating a de jure dual school system on May 17, 1954 (the date of Brown I), and had not changed its policies in order to eliminate de jure segregation on or before May 31, 1968 (the date of the government's complaint). Pursuant to Brown v. Board of Education (Brown II), 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), the court on August 18, 1971 ordered interim relief, retained jurisdiction to order further relief and directed the school board to file plans of affirmative action for the school year 1971-72 as required by Green v. County School Board, 391 U.S. 430, 437-438, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). ('School board(s) . . . (were) . . . clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination (would) be eliminated root and branch.') United States v. Board of School Commissioners (Indianapolis I), 332 F.Supp. 655 (S.D.Ind. 1971), aff'd, 474 F.2d 81 (7th Cir.), cert. denied, 413 U.S. 920, 93 S.Ct. 3066, 37 L.Ed.2d 1041 (1973).

In Indianapolis I, the court concluded that the common law of Indiana was that the boundaries of a school district and of a civil city were coterminous, a rule finally recognized by statute in 1931. 1 Statutes passed in 1961 2 and in 1969 3 provided that, if Indianapolis' boundaries were extended, those of its school district could likewise be expanded. Such expansion, however, would be subject to a separate remonstrance or veto by a specified percentage of persons affected.

In 1969, after this suit had been commenced, the civil governments of the City of Indianapolis and of Marion County were consolidated into a unified, metropolitan city government by the socalled Uni-Gov Act, which expressly provides that the Indianapolis school district would not be affected by the expansion of the city. 4 In other words, the school district (or School City) of Indianapolis was confined to an area in the central part of the new Uni-Gov, where it is surrounded by eight township school systems and by two additional city school corporations (Beech Grove and Speedway City), all operating independently within the new unified City of Indianapolis and within Marion County.

The district court concluded that 'the easy way out . . . would be to order a massive 'fruit basket' scrambling of students within the School City,' but 'it won't work.' Resegregation would rapidly occur because of a white exodus from what would be substantially black schools. The resegregation problem 'would pale into insignificance if the (school) Board's jurisdiction were coterminous with that of Uni-Gov' and 'would be minimized still further if extended to . . . Beech Grove and Speedway City, and to certain parts of the adjoining counties practically indistinguishable from the City of Indianapolis . . ..' The court ordered the United States as plaintiff to join as additional parties defendant the municipal corporations and school corporations which would have an interest in the court's intended consideration of the entire metropolitan area. 332 F.Supp. at 678-680.

On September 7, 1971, the United States moved to add as parties defendant all school corporations in Marion County (eight townships and two city corporations). A few days later, the court permitted the Buckley plaintiffs (Donny Brurell Buckley and Aylcia Marquese Buckley by their parents and next friend, Ruby L. Buckley) to intervene in their own right and as representatives of a class consisting of 'all Negro school age children residing in the area served by' the Indianapolis school board. The intervening plaintiffs, in turn, joined as additional parties defendant the Governor and Attorney General of Indiana, the state Superintendent of Public Instruction, the state Board of Education and 19 school corporations (including the ten within Marion County which had been joined by the United states, plus nine in the adjoining counties of Boone, Hamilton, Hancock, Johnson, Morgan and Hendricks).

Citizens of Indianapolis for Quality Schools, Inc., a not-for-profit corporation, was permitted to intervene as a defendant. See United States v. Board of School Commissioners, 466 F.2d 573 (7th Cir. 1972), cert. denied. 410 U.S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271 (1973). Coalition for Integrated Education, an unincorporated association favoring a metropolitan plan of desegregation, was granted leave to file briefs as amicus curiae in both the district court and in this court.

The intervening plaintiffs filed an amended complaint in intervention in two counts. The first count alleged that the Indiana statutes effecting a governmental reorganization in Indianapolis were unconstitutional as racially discriminatory because schools were excluded from the consolidated metropolitan government, and prayed for an order consolidating the defendant school systems. The second count alleged and sought relief from racial discrimination by the state and by local school authorities in the operation of the public schools of Indianapolis and the surrounding school corporations.

The additional defendants filed various motions attacking their joinder, the complaint in intervention and the court's jurisdiction on a variety of grounds. All these motions were overruled by the district court. Several of the added defendants subsequently applied unsuccessfully to this court for writs of prohibition or mandamus to vacate the joinder and intervention orders; 5 to compel the convening of a three-judge district court; 6 and to compel the recusation of the district judge. 7

On September 28, 1972, the court for the first time ordered the development and submission of comprehensive plans for the desegregation of the Indianapolis district. 8 In response, the Indianapolis board on February 8, 1973 submitted a plan, denominated the 'Stabilization Plan.' The 'Stabilization Plan' was subsequently rejected by the court on June 11, 1973.

The remedy phase (Indianapolis II) was tried before the court from June 12 to July 6 and on July 18, 1973. On July 20, 1973, the court entered its decision, concluding that (1) desegregation promising a reasonable degree of permanence could not be accomplished within the present boundaries of the Indianapolis school district; (2) the State of Indiana, its officials and agencies, had by various acts and omissions promoted segregation and inhibited desegregation within the Indianapolis district, so that the state, as the agency ultimately charged under Indiana law with the operation of the public schools, has a continuing affirmative duty to desegregate the Indianapolis system; (3) the system could be effectively desegregated either by combining its territory with all or part of the territory served by the 19 surrounding school corporations in and adjacent to Marion County into a metropolitan system and then reassigning students within the expanded system or by...

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