U.S. v. Board of School Com'rs of City of Indianapolis, 97-1530

• Decision Date: 14 October 1997
• Docket Number: No. 97-1530,97-1530
• Citation: 128 F.3d 507
• Parties: 121 Ed. Law Rep. 966 UNITED STATES of America, Plaintiff-Appellee, v. BOARD OF SCHOOL COMMISSIONERS OF THE CITY OF INDIANAPOLIS, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 507

128 F.3d 507

121 Ed. Law Rep. 966

UNITED STATES of America, Plaintiff-Appellee,

v.

BOARD OF SCHOOL COMMISSIONERS OF THE CITY OF INDIANAPOLIS,

et al., Defendants-Appellants.

No. 97-1530.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 15, 1997.

Decided Oct. 14, 1997.

Judith A. Stewart, Office of the United States Attorney, Indianapolis, IN, Dennis J. Dimsey, Gregory B. Friel (argued), Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, for United States of America.

John O. Moss (argued), Moss & Associates, John P. Ward, Indianapolis, IN, Charles D. Kelso, Sacramento, CA, for Donny Brurell Buckley and Alicia Marquese Buckley.

Patricia A. Brannan (argued), Maree Sneed, Hogan & Hartson, Washington, DC, B. Keith Shake, Eugene L. Henderson, Henderson, Daily, Withrow & Devoe, Indianapolis, IN, for Board of School Commissioners of the City of Indianapolis, Indiana and Esperanza Zendejas.

Robert E. Cambridge (argued), Bloomington, IN, for Metropolitan School District of Decatur Township, Marion County, Indiana.

John A. Kitley, Jr., Beech Grove, IN, for Franklin Township Community School Corporation, Marion County, Indiana.

David R. Day (argued), Johnson, Smith, Pence, Densborn, Wright & Heath, Indianapolis, IN, for Metropolitan School District of Lawrence Township, Marion County, Indiana.

Louis H. Borgmann, Jackson & Borgmann, Inidanapolis, IN, for Metropolitan School District of Perry Township, Marion County, Indiana.

David R. Day, Johnson, Smith, Pence, Densborn, Wright & Heath, Indianapolis, IN, for Metropolitan School District of Warren Township, Marion County, Indiana.

George T. Patton, Jr., Jon M. Bailey, Bose, McKinney & Evans, Indianapolis, IN, for Metropolitan School District of Wayne Township, Marion County, Indiana.

Before POSNER, Chief Judge, and CUMMINGS and ROVNER, Circuit Judges.

POSNER, Chief Judge.

Almost two decades ago, the federal district court in Indianapolis issued an injunction requiring the busing of public schoolchildren living in certain parts of the city that were primarily black to public schools located in primarily white suburban areas of Marion County. 506 F.Supp. 657, 676-77 (S.D.Ind.1979), aff'd in relevant part, 637 F.2d 1101, 1112-15 (7th Cir.1980). (Indianapolis is now coterminous with Marion County, but the Indianapolis Public School District, where the children in question live, is limited to the original city and thus excludes the county's suburban areas.) Earlier this year, the Indianapolis Board of School Commissioners, the ruling body of the Indianapolis Public School District (IPS, as the parties call it), asked the district judge to lift the injunction. He refused, and in passing ordered all kindergarten students in the designated sections of the city to be bused too, rescinding an earlier order that had permitted, at parental option, the busing of kindergartners from some but not all of the parts of the inner city covered by the injunction. The board has appealed.

There is no question that in adding compulsory busing of kindergarten students to the original injunction, the district judge modified that injunction, and an order modifying an injunction is appealable without regard to finality. 28 U.S.C. § 1292(a)(1). But there is a question whether the part of his order that continues the underlying injunction in force is similarly appealable.

The board moved to lift the injunction and dismiss the suit (now in its thirtieth year) on the ground that the Indianapolis Public School District has achieved what in the euphemistic lexicon of school segregation cases is called "unitary status," which means that the district is not (or, as here, is no longer) discriminating. The district court declined to address this issue, saying that it was "not fully advised as to whether IPS should be declared 'unitary' in whole or in part, and [the court] will therefore take additional evidence on this issue at a further hearing to be scheduled in the near future." The hearing has not yet been held, or, so far as we know, even scheduled.

Standing alone, the language that we have just quoted would signify that the court was not ruling on the board's request to lift the injunction because the request depended on a factual determination that would require further proceedings. Postponement of a ruling on a request to dissolve an injunction is not treated as a denial for purposes of appealability--otherwise the movant could appeal before the judge had had a chance to consider his motion--unless it is so protracted that it has the practical effect of a denial; in that event it is deemed a constructive denial, and immediate appeal is allowed. IDS Life Ins. Co. v. SunAmerica, Inc., 103 F.3d 524, 526-27 (7th Cir.1996); Middleby Corp. v. Hussmann Corp., 962 F.2d 614 (7th Cir.1992); Kelley v. Metropolitan County Board of Education, 436 F.2d 856, 862 (6th Cir.1970). But when context is restored, it is apparent that the district judge was not making a procedural ruling. He went out of his way to make clear that however the issue of "unitary status" was resolved, the injunction would remain in effect--would, as he put it, be "permanent." The reason he gave was that the injunction is an "interdistrict" rather than an "intradistrict" remedy.

Judges may not issue busing orders ("transfer orders," in another bit of school segregation litigation jargon) that send the kids outside the boundaries of the public school district in which they live, if the only violation of the equal protection clause is by that school district. Missouri v. Jenkins, 515 U.S. 70, 89-93, 115 S.Ct. 2038, 2049-52, 132 L.Ed.2d 63 (1995); Milliken v. Bradley, 418 U.S. 717, 744-45, 94 S.Ct. 3112, 3127, 41 L.Ed.2d 1069 (1974); United States v. Mississippi, 921 F.2d 604, 607 (5th Cir.1991). If New York City discriminates against black schoolchildren, a federal district court cannot order the children bused to Scarsdale. If, however, the discrimination crosses district lines--for example, if New York State had a law forbidding black people to live in Scarsdale--then an "interdistrict" remedy would be appropriate. E.g., Milliken v. Bradley, supra, 418 U.S. at 745, 94 S.Ct. at 3127. The busing order at issue in this case is interdistrict. Although the inner-city children are being bused to schools that are also within the city boundaries, they live in a different school district, the IPS. The order is based on two acts of cross-district discrimination. The first is that in 1969, when by a law known as "Uni-Gov" the Indiana legislature extended the boundaries of the City of Indianapolis to make them coterminous with those of Marion County, the boundaries of IPS were deliberately not extended, in order to prevent black public schoolchildren from being in the same school district as white ones. Second, the Housing Authority of the City of Indianapolis, which as a result of Uni-Gov became responsible for public housing throughout Marion County, refused to build outside of IPS, so that black children living in public housing would not reside in any of the suburban school districts and attend school there. The interdistrict busing order was designed to remedy these alleged acts of interdistrict discrimination.

There is, as a result, an element of non sequitur in the school board's request for the dissolution of the interdistrict busing order on the ground that IPS is no longer engaged in racial discrimination. IPS was found to have engaged in racial discrimination and was placed under orders designed to remedy that discrimination; but the interdistrict order is based upon, and seeks to remedy, acts of other public entities altogether.

The non sequitur weakens (though, as we are about to see, it does not destroy) IPS's case on the merits, but at least shows that we have jurisdiction over the appeal without our having to invoke the controversial and embattled doctrine of pendent appellate jurisdiction, on which see Swint v. Chambers County Comm'n, 514 U.S. 35, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995); IDS Life Ins. Co. v. SunAmerica, Inc., supra, 103 F.3d at 528; In re Rimsat, Ltd., 98 F.3d 956, 964 (7th Cir.1996). The postponed hearing on "unitary status" is, in the district judge's view, irrelevant to the continued validity of the interdistrict busing order. His refusal to dissolve that order is therefore not procedural, is not a mere postponement until he has a chance to take evidence on unitariness. As the ruling that IPS is trying to appeal is impervious to further evidence--as it definitively denies the relief that IPS seeks--IPS is entitled to appeal.

Coming to the merits, we begin by observing that if all that the board were arguing was that it is no longer discriminating, the appeal would border on the frivolous for the reason just indicated--the fundamental difference between interdistrict and intradistrict remedies in school segregation cases. But there is more. The board argues that after thirty years of litigation, and eighteen years of busing, it is time to put this suit on the path to a conclusion by taking a careful look to see whether the litigation and the decree have accomplished their purpose. It points out that the Supreme Court disfavors permanent injunctions in school cases. The administration of public schools is a state executive function rather than a federal judicial function, and so ought not to be subjected to the perpetual tutelage of the federal courts. The Court has said that "local autonomy of school districts is a vital national tradition," and that "a district court must strive to restore the state and local authorities to the control of a school system operating in compliance with the Constitution." Missouri v. Jenkins, supra, 515 U.S. at 99, 115 S.Ct. at 2054; see also Board of...