United States v. SCHOOL DIST. OF OMAHA, STATE OF NEB.

• Decision Date: 15 October 1974
• Docket Number: Civ. No. 73-0-320.
• Citation: 389 F. Supp. 293
• Parties: UNITED STATES of America, Plaintiff, and Nellie Mae Webb et al., Intervenors, v. The SCHOOL DISTRICT OF OMAHA, STATE OF NEBRASKA, et al. Defendants.
• Court: U.S. District Court — District of Nebraska

389 F. Supp. 293

UNITED STATES of America, Plaintiff, and Nellie Mae Webb et al., Intervenors, v. The SCHOOL DISTRICT OF OMAHA, STATE OF NEBRASKA, et al. Defendants.

Civ. No. 73-0-320.

United States District Court, D. Nebraska.

October 15, 1974.

COPYRIGHT MATERIAL OMITTED

Ross L. Connealy, Dept. of Justice, Washington, D. C., for plaintiff.

Robert V. Broom, R. Ladd Lonnquist, Legal Aid, Omaha, Neb., and Robert Pressman and Stephen E. Cotton, Center for Law and Education, Cambridge, Mass., for intervenors.

Gerald P. Laughlin, Baird, Holm, McEachen, Pedersen, Hamann & Haggart, Omaha, Neb., for defendants.

MEMORANDUM OPINION

SCHATZ, District Judge.

This school desegregation case was filed by the United States on August 10, 1973, under the authority of 42 U.S.C. § 2000c-6(a). Jurisdiction is also present under 28 U.S.C. § 1345. The defendants are the School District of Omaha, State of Nebraska; the Superintendent of Schools for the School District; and the twelve members of the Board of Education for the School District. The plaintiff's complaint alleges that the defendants have engaged in racial discrimination in the operation of the Omaha Public Schools in violation of Title IV of the Civil Rights Act of 1964 and the Fourteenth Amendment to the United States Constitution. The defendants deny that the Omaha Public Schools have been operated in a manner which discriminates against any students on the basis of race, and affirm the School District's adherence to a racially neutral neighborhood school assignment policy.

The plaintiff's complaint was accompanied by a motion for a preliminary injunction. A full evidentiary hearing was held, and the motion was denied, United States v. School District of Omaha, State of Nebraska, 367 F.Supp. 179 (D.Neb.1973). Thereafter, certain black children attending the Omaha Public Schools and their parents, representing a class of all other similarly situated black children and their parents, were permitted to intervene as plaintiffs in this lawsuit under Rule 24(b), Fed. R.Civ.P., 367 F.Supp. 198 (D.Neb.1973).

The trial of this case was begun on March 4, 1974, and concluded on March 20, 1974. A schedule for the preparation of post-trial briefs and proposed findings of fact was established, and the entire matter was submitted to the Court on June 5, 1974.

The Omaha Public Schools have never been operated under a statutorily or constitutionally required dual system. Therefore, the legal principles upon which claims with respect to this school system must be resolved are those set forth by the Supreme Court in Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). Under Keyes, a constitutional violation is found where:

1) There is a current condition of racial segregation; and

2) This condition has been caused or maintained by intentional state action.

There is no question here that the actions of the defendants constitute state action. Nor is it open to doubt that there is a substantial degree of racial imbalance within some of the Omaha Public Schools. The issue upon which this litigation is focused is whether the racial imbalance has been intentionally caused or maintained by the defendants.

A determination of the intent of a person or a public body with respect to action or inaction on any question is necessarily difficult. In evaluating the evidence introduced at trial the Court has kept in mind certain principles concerning the finding of intent:

1) The burden of proof on this issue lies upon the plaintiff and the intervenors to show an intentionally segregative policy practiced in a meaningful or significant portion of the school system. The burden then shifts to the defendants to show that their actions as to any other segregated schools within the system were not motivated by segregative intent. Keyes, 413 U.S. at 208-209, 93 S.Ct. 2686.

2) There are very few school desegregation cases in which the defendants admit segregative intent. Such intent must then be inferred from objective actions of the defendants. United States v. Board of School Commissioners of Indianapolis, Indiana, 474 F.2d 81 (7th Cir. 1973), cert. denied, 413 U.S. 920, 93 S.Ct. 3066, 37 L.Ed.2d 1041 (1973).

3) There is some dispute among the parties concerning how the Court is to weigh the natural and foreseeable consequences of the defendants' decisions to act or not to act in any given area. Prior to Keyes, it had been held that school boards were accountable for the natural and foreseeable consequences of their actions, regardless of intent or motivation, United States v. Texas Education Agency, 467 F.2d 848, 863-865 n. 25 (5th Cir. 1972). This view no longer appears to be the law in light of the Keyes emphasis on intent. The Ninth Circuit has specifically so held, Johnson v. San Francisco Unified School District, 500 F.2d 349 (1974); Soria v. Oxnard School District Board of Trustees, 488 F.2d 579 (9th Cir. 1973). But the error reversed in Johnson and Soria was the rejection by the trial courts of the importance of determining intent, not the method of determining it. This Court is of the opinion that the natural and foreseeable consequences of the defendants' actions are neither determinative nor immaterial, but rather constitute one additional factor to be weighed in evaluating the defendants' overall intent. Oliver v. Kalamazoo Board of Education, 368 F. Supp. 143 (W.D.Mich.1973).

I. BACKGROUND

The defendant School District of Omaha has within its boundaries the majority of the City of Omaha, Nebraska, as well as a part of Sarpy County, Nebraska. A portion of Omaha in the southwest sector of the City is served by School District 66. The schools operated by the defendants, however, are commonly referred to as the Omaha Public Schools. United States census data show that in 1940 there were 12,015 black citizens in Omaha, comprising 5.3 per cent of the population. By 1950 the number was 16,311, or 6.5 per cent of the total. In 1960 it was 25,155, or 8.3 per cent, and in 1970, it was 34,431, or 9.9 per cent. By way of comparison, the percentage of black students enrolled in the Omaha Public Schools has increased from 6.6 per cent in 1940 to 9.4 per cent in 1950, to 14.2 per cent in 1960, to 18.6 per cent in 1970, and to 19.8 per cent in 1973-74.

During the 1950's, black persons in Omaha resided generally in an area known as the Near North Side, bounded roughly by Cuming Street on the south, Wirt Street on the north, 33rd Street on the west, and Florence Boulevard on the east. Census tract information is available which was compiled by the School District of Omaha as required by state law and which shows the concentration of black school age children, ages five through twenty, throughout the City on a scale of less than one per cent, one to twenty-five per cent, twenty-six to fifty per cent, fifty-one to seventy-five per cent, and seventy-six to one hundred per cent. This information shows that in 1952-53, the only elementary attendance zone with as high as seventy-six to one hundred per cent black school age children was the Long school zone. This zone sits almost directly in the center of the Near North Side. The only zones with fifty-one to seventy-five per cent black school age children were Lake, immediately to the northeast of Long, and Howard Kennedy, immediately to the northwest of Long. The only zone with twenty-six to fifty per cent black school age children was Kellom, immediately to the southeast of Long. Various other zones had one to twenty-five per cent black school age children, and they were scattered near the schools above mentioned and in the eastern and southeastern portion of the School District.

By 1959-60, there were seventy-six to one hundred per cent residential concentrations of black school age children in the Long, Howard Kennedy and Lothrop (immediately north of Lake) zones. Fifty-one to seventy-five per cent concentration resided in the Lake and Druid Hill (immediately north of Kennedy and west of Lothrop zones). The only twenty-six to fifty per cent concentration was again in Kellom. One to twenty-five per cent concentrations resided on the north and southwest fringes of the above-mentioned schools, in two isolated schools in the central portion of the District, and in a cluster of seven zones in the southeastern portion of the District.

By 1969-70, there were seventy-six to one hundred per cent residential concentrations of black school age children in the Long, Kennedy, Lake, Kellom, Lothrop and Druid Hill zones. Fifty-one to seventy-five per cent concentrations resided in the Monmouth Park (immediately to the northwest of Druid Hill). Saratoga (immediately to the north of Lothrop) and Franklin (immediately to the west of Long and Kennedy) zones. Twenty-six to fifty per cent concentrations resided in the Clifton Hill (immediately to the west of Franklin, Kennedy and Druid Hill), Central Park (immediately to the west of Monmouth Park) and Indian Hill (in the southeastern portion of the District) zones. Schools with one to twenty-five per cent concentrations generally bordered the above-mentioned zones. Thus, by 1969-70, the last year for which these census tracts are in evidence, there can be seen a definite increase in the concentration of black school age children residing in the northern and eastern portions of the District, including the area referred to in the 1950's as the Near North Side, and a gradual increase in concentration in the zones to the west and north of the Near North Side. Also, there was by 1969-70 a small but apparently growing concentration of black children residing in the southeastern portion of the District.

II. ELEMENTARY SCHOOLS

For the school year 1973-74, there were seventy-nine elementary schools within the defendant School District, serving 33,495 students, of whom 6,876 (or approximately twenty per cent) were black. The elementary schools are the heart of the...