U.S. v. Board of School Com'rs of City of Indianapolis, Ind., s. 75-1730

• Decision Date: 14 February 1978
• Docket Number: Nos. 75-1730,s. 75-1730
• Citation: 573 F.2d 400
• Parties: UNITED STATES of America, Plaintiff-Appellee, and Donny Brurell Buckley, et al., Intervening Plaintiffs-Appellees, v. BOARD OF SCHOOL COMMISSIONERS of the CITY OF INDIANAPOLIS, INDIANA, et al., Defendants-Appellants. through 75-1737, 75-1765, 75-1936, 75-1965 and 75-2007.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 400

573 F.2d 400

UNITED STATES of America, Plaintiff-Appellee, and Donny Brurell Buckley, et al., Intervening Plaintiffs-Appellees, v. BOARD OF SCHOOL COMMISSIONERS of the CITY OF INDIANAPOLIS, INDIANA, et al., Defendants-Appellants.

Nos. 75-1730 through 75-1737, 75-1765, 75-1936, 75-1965 and 75-2007.

United States Court of Appeals, Seventh Circuit.

Feb. 14, 1978.

Theodore L. Sendak, Atty. Gen., Donald P. Bogard, Asst. Atty. Gen., William F. Harvey, Special Counsel, Atty. Gen., William M. Evans, Lewis C. Bose, Donald A. Schabel, Richard D. Wagner, Richard L. Brown, Charles W. Hunter, Indianapolis, Ind., William O. Schreckengast, Beech Grove, Ind., Lawrence McTurnan, Charles G. Reeder, Robert P. Kassing, Gary R. Landau, Indianapolis, Ind., for defendants-appellants.

R. Davy Eaglesfield III, John O. Moss, John Preston Ward, Charles D. Kelso, James B. Capehart, Indianapolis, Ind., Samuel J. Flanagan, Jr., Civ. Rights Div., Dept. of Justice, Brian K. Landsberg, Dept. of Justice, Washington, D. C., James B. Young, U. S. Atty., Indianapolis, Ind., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, and SWYGERT and TONE, Circuit Judges.

SWYGERT, Circuit Judge.

Our decision today is a continuation of protracted litigation which began in 1968 over whether and to what extent the public schools of Indianapolis must be desegregated. In our most recent opinion, we affirmed the district court's order calling for the busing of black students from within the Indianapolis Public School District ("IPS") to schools which are outside IPS but within Marion County ("Uni-Gov"). United States v. Board of School Commissioners, 541 F.2d 1211 (7th Cir. 1976). The Supreme Court vacated our judgment and remanded the case to this court for further consideration in light 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 Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), which require proof of racially discriminatory intent or purpose to show a violation of the Equal Protection Clause. See 429 U.S. 1068, 97 S.Ct. 802, 50 L.Ed.2d 786 (1977). For the reasons and in the areas set forth below, we now remand this case to the district court for further findings of fact.

I

Because of the age of this suit, its sheer size, the number of parties which have intervened or have been added during the course of the proceedings, and the fact that this case has made several trips through the appellate process, ¹ we think it would help to summarize the present posture of this case, namely, to identify those issues which have been settled and those which remain unresolved. Before proceeding to do so, however, it is important to understand the three geographical areas which have at some point been the subject of this litigation. As illustrated by the diagram below, those three areas include: (1) IPS, whose boundaries are coterminous with the City of Indianapolis (before Uni-Gov), (2) suburban school districts within Marion County and, since the enactment of the Uni-Gov Act in 1969, within the boundaries of the City of Indianapolis (after Uni-Gov), ² and (3) school districts which are outside of and adjacent to Marion County.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On August 18, 1971, the district court found that the Indianapolis School Board was deliberately operating a de jure dual system on May 17, 1954 (date of Brown I ), and had not changed its policies since that year in order to eliminate that de jure segregation. United States v. Board of School Commissioners, 332 F.Supp. 665 (S.D.Ind.1971). In affirming, this court said, "(I)t is clear that the district court found a purposeful pattern of racial discrimination based on the aggregate of many decisions of the Board and its agents." 474 F.2d 81, 84 (7th Cir.), cert. denied, 413 U.S. 920, 93 S.Ct. 3066, 37 L.Ed.2d 1041 (1973). After reviewing the district court's findings regarding the gerrymandering of school attendance zones, the segregation of faculty, the use of optional attendance zones among the schools, and the pattern of school construction and placement, we held: "(T)he evidence of both segregatory intent and causation is substantial enough to support the district court's findings." Id. at 85.

On remand, the district court determined that state officials are ultimately charged under Indiana law with the responsibility of operating the public schools. The court further determined that these officials had caused and promoted segregation within IPS, so that the State had an affirmative duty to assist the IPS Board in desegregating its schools. 368 F.Supp. 1191 (S.D.Ind.1973). We affirmed this holding on appeal. 503 F.2d 68, 80 (7th Cir. 1974), cert. denied, 421 U.S. 929, 95 S.Ct. 1654, 44 L.Ed.2d 86 (1975). These rulings, finding both the Board and the State guilty of de jure segregation within IPS, now constitute the law of this case. ³ Accordingly, the parties and the courts are precluded from reexamining them. Desegregation remedies within the confines of IPS are therefore wholly appropriate.

The district court when fashioning a remedy was understandably concerned with the problem of "white flight." The court was opposed to a desegregation plan limited solely to IPS because evidence showed that such a plan would accelerate the white exodus with the resultant effect of resegregating the Indianapolis schools. The only feasible permanent desegregation plan, in the district court's view, was to order an interdistrict remedy which encompassed the entire metropolitan area, including the suburban districts within Marion County and the adjacent districts outside of the county (areas 2 and 3 in the diagram above). 368 F.Supp. 1191 (S.D.Ind.1973).

This court, under Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974), reversed the district court's order pertaining to the interdistrict remedy as to those school districts outside Marion County (area 3). 503 F.2d 68, 86 (7th Cir. 1974), cert. denied, 421 U.S. 929, 95 S.Ct. 1654, 44 L.Ed.2d 86 (1975). This holding, as the one inculpating the State and the school board within IPS, is subject to the law of the case principle and therefore is closed to further examination.

The only issue before us, then, is whether the district court in the exercise of its equity jurisdiction may impose an interdistrict remedy which includes the transfer of students from IPS to the suburban districts within Marion County. Resolution of this issue necessarily presupposes an affirmative answer to each of the following subsumed questions: (1) whether at least one of the predicates for metropolitan relief as enunciated in Milliken v. Bradley is present, and (2) whether the relevant acts or omissions of state or local officials were motivated, at least in part, by a racially discriminatory purpose or intent as articulated in Washington v. Davis and Arlington Heights.

As will become more apparent below, resolution of these two preliminary questions requires remanding this case to the district court. On remand, the task of the district court is to make further findings of fact from evidence already in the record or, if necessary, as supplemented by additional evidence.

II

Any decision as to whether interdistrict school desegregation remedies may be imposed must begin with a consideration of the principles enunciated by the Supreme Court in Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974). The Court in reversing the proposed interdistrict remedy in that case did not foreclose all metropolitan desegregation plans. As said in Hills v. Gautreaux, 425 U.S. 284, 298, 96 S.Ct. 1538, 1546, 47 L.Ed.2d 792 (1976):

Nothing in the Milliken decision suggests a per se rule that federal courts lack authority to order parties found to have violated the Constitution to undertake remedial efforts beyond the municipal boundaries of the city where the violation occurred.

The underlying principle controlling the question of whether an interdistrict remedy is appropriate is that "the scope of the remedy is determined by the nature and extent of the constitutional violation." 418 U.S. at 744, 94 S.Ct. 3112, 3127. Interdistrict relief was found impermissible in Milliken because there was no evidence that either the State or any of the suburban school districts had engaged in unconstitutional activity which had a cross-district effect. Id. at 748, 94 S.Ct. 3112. The interdistrict decree was therefore impermissible because it was not commensurate with the constitutional violation to be repaired. See Gautreaux, 425 U.S. at 294, 96 S.Ct. 1538.

Before a court may impose an interdistrict remedy, a constitutional violation, i. e., intentional state action, must exist which has significant segregative interdistrict effects. ⁴ Milliken, 418 U.S. at 744-45, 94 S.Ct. 3112; Gautreaux, 425 U.S. at 294-96, 96 S.Ct. 1538. The Court in Milliken gave several examples of violations having an interdistrict effect, including actual district line crossings by students, deliberate drawing of district lines on the basis of race, and state actions that affect residential patterns by influencing the location of families with school children. 418 U.S. at 745, 94 S.Ct. 3112; 418 U.S. at 755, 94 S.Ct. 3112 (Stewart, J. concurring).

The district court in the instant case found two violations upon which it based the proposed interdistrict remedies. See 419 F.Supp. 180 (S.D.Ind.1975). The first was the failure of the State to extend the boundaries of IPS when the municipal government of Indianapolis and the other governmental units in Marion County were replaced by a consolidated county-wide government called "Uni-Gov." The second violation was the segregative housing practices by the State and its agents, such as the confinement of all public housing projects (in which 98% Of the residents were black) to areas within the boundaries of the ...