US v. South Bend Community School Corp., S 80-35.

• Decision Date: 17 April 1981
• Docket Number: No. S 80-35.,S 80-35.
• Citation: 511 F. Supp. 1352
• Parties: UNITED STATES of America, Plaintiff, v. SOUTH BEND COMMUNITY SCHOOL CORPORATION; James P. Scamman, Superintendent; The Board of School Trustees of the South Bend Community School Corporation; Robert M. Sweeney, Donald W. Yates, Marilyn Kalamaros, Eileen Bender, Hollis E. Hughes, Jr., Anthony V. Luber, William L. Wilson, members of the Board of School Trustees, Defendants.
• Court: U.S. District Court — Northern District of Indiana

511 F. Supp. 1352

UNITED STATES of America, Plaintiff, v. SOUTH BEND COMMUNITY SCHOOL CORPORATION; James P. Scamman, Superintendent; The Board of School Trustees of the South Bend Community School Corporation; Robert M. Sweeney, Donald W. Yates, Marilyn Kalamaros, Eileen Bender, Hollis E. Hughes, Jr., Anthony V. Luber, William L. Wilson, members of the Board of School Trustees, Defendants.

No. S 80-35.

United States District Court, N. D. Indiana, South Bend Division.

April 17, 1981.

COPYRIGHT MATERIAL OMITTED

David T. Ready, U. S. Atty., South Bend, Ind., for plaintiff.

Bruce R. Bancroft and Franklin A. Morse, II, South Bend, Ind., for defendants.

MEMORANDUM AND ORDER

ALLEN SHARP, District Judge.

I.

On February 8, 1980, this action was commenced by the filing of a complaint by the Attorney General of the United States under Title IV of the Civil Rights Act of 1964 and under the Equal Educational Opportunities Act of 1974. Subject matter jurisdiction was predicated upon Section 407(a) and (b); Section 207 of the Equal Educational Opportunities Act of 1974, 20 U.S.C. 1706; and the statute providing original jurisdiction in the district courts of all civil actions brought by the United States as a plaintiff, 28 U.S.C. 1345.

These statutes fix original subject matter jurisdiction in this Court. See, e. g., United States v. Board of School Commissioners of City of Indianapolis, 332 F.Supp. 655 (S.D.Ind.1971), aff'd, 474 F.2d 81 (7th Cir. 1973), cert. den., 413 U.S. 920, 93 S.Ct. 3066, 37 L.Ed.2d 1041 (1973); Spangler v. Pasadena City Board of Education, 311 F.Supp. 501 (C.D.Cal.1970), aff'd, 427 F.2d 1352 (9th Cir. 1970). A district court in a school desegregation case, upon issuing a desegregation order, retains jurisdiction to make and enforce such decrees in equity as are necessary to accomplish constitutional objectives. United States v. School District 151 of Cook County, Illinois, 286 F.Supp. 786 (N.D.Ill.1968), aff'd, 404 F.2d 1125 (7th Cir. 1968), on remand, 301 F.Supp. 201 (N.D. Ill.1969); United States v. Board of School Commissioners of City of Indianapolis, supra, 322 F.Supp. at 677. Thus it was that the original Consent Decree entered in this case provided that "the Court shall retain jurisdiction of this action for all purposes." Consent Decree, February 8, 1980, ¶ 12.

Although not binding upon this Court, the opinion of Judge Shadur in U. S. v. Board of Education of the City of Chicago, 88 F.R.D. 679 (N.D.Ill.1981), provides an interesting analogue to the course of proceedings reflected in the record of this case. In the Chicago case, as is the situation here, the complaint was filed and a consent decree was entered on the same date. As is the situation here, that consent decree was agreed upon by the United States and the Board of Education following extended negotiations. And, as is the situation here, the school board in the consent decree neither admitted nor denied the allegations of the complaint that there had been intentional racial and ethnic origin discrimination against students by the Board's maintenance of a segregated school system. Noting that, "this case is in an unusual posture for considering intervention", the district court in the Chicago case described the effect of the consent decree as follows:

Here the Consent Decree, requiring the prompt development and implementation of a desegregation plan, has been entered without the need to establish that the Board's predecessors in office have violated the Constitution. Thus the case can move directly to the determination of relief against the acknowledged pattern of racial isolation, without previously having to litigate the issue of the Board's liability. 88 F.R.D. 681.

"That result," said Judge Shadur, "is obviously desirable from the prospectives of both legal and public policy considerations." Id.

In support of his entry of the consent decree, Judge Shadur relied upon Armstrong v. Board of School Directors of the City of Milwaukee, 616 F.2d 305, 312-13, 318 (7th Cir. 1980). Had he wished, the district judge could also have relied upon Metropolitan Housing Development Corp. v. Village of Arlington Heights, 469 F.Supp. 836 (N.D.Ill.1979), aff'd, 616 F.2d 1006 (7th Cir. 1980).

Metropolitan Housing was an action brought to remedy conduct of the Village of Arlington Heights alleged to have been racially discriminatory in violation of the Fourteenth Amendment and the Fair Housing Act of 1968, 42 U.S.C. 3601, et seq. Intervening landowners and a neighboring village sought to set aside a previously entered consent decree on grounds that, because there was no finding or admission that the defendant had committed a constitutional or statutory violation, the entry of the consent decree would effect unauthorized expansion of the jurisdiction of the federal court. 469 F.Supp. at 850. Following a discussion of applicable Supreme Court cases¹ and other authorities, the district court in Metropolitan Housing concluded that "it can enter a consent decree absent proof or admission of a constitutional or statutory violation." 469 F.Supp. at 851. Recognizing the principle that "the law generally favors and encourages settlements", the Seventh Circuit affirmed. 616 F.2d 1006. Jurisdiction, therefore, was not improperly or unlawfully expanded.

Thus, by Metropolitan Housing, the Seventh Circuit approved the entry of a consent decree entered in a case brought to rectify racial discrimination in violation of federal statute and the Constitution absent proof or admission of liability on the part of the defendant. The only distinction is that Metropolitan Housing was not a school desegregation case.

The issue faced by the Seventh Circuit in Armstrong was whether, after 15 years of litigation, it was possible to "settle" the remedial portion² of a school desegregation class action. 616 F.2d at 307-8, 316. Following careful analysis of employment discrimination cases, the court found that "settlement is an appropriate method of arriving at a school desegregation remedy". 616 F.2d at 317-318. The Circuit Court then concluded:

School desegregation is one of the areas in which voluntary resolution is preferable to full litigation because the spirit of cooperation inherent in good faith settlement is essential to the true long-range success of any desegregation remedy. 616 F.2d at 318. (citations omitted)

In Metropolitan Housing, the court approved a consent decree covering the issue of liability in a case involving racial discrimination in housing. In Armstrong, the court approved a consent decree covering the issue of the appropriate remedy in a case involving racial discrimination in the public schools. Thus it is obvious that a consent decree is an appropriate resolution of the litigation at this stage.

It is now axiomatic that school authorities have an affirmative duty to eliminate from the public schools all vestiges of state-imposed segregation as of the date on which de jure segregation became illegal under Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). It is also clear there is no constitutional duty imposed upon school authorities to remedy the effects of racial imbalance or to maintain any particular racial balance in the public schools insofar as it relates to purely de facto segregation unaided by any state action. See Swann v. Charlotte-Mecklenburg Board of Education, supra; Board of School Commissioners of the City of Indianapolis v. United States, 474 F.2d 81 (7th Cir. 1973), cert. den., 413 U.S. 920, 93 S.Ct. 3066, 37 L.Ed.2d 1041 (1973).

Notwithstanding there is no constitutional obligation to alleviate racial imbalance not caused by school boards, it is evident that under Indiana law they may do so should they desire. In fact, in order to effectuate public policy established by our Legislature,³ the Indiana Equal Educational Opportunity Act encourages them to do so:

... The governing body of any school corporation ... may take any affirmative actions that are reasonable, feasible and practical, to effect greater integration and to reduce or prevent segregation or separation of races in public schools for whatever cause. These actions may include, but are not limited to, site selection, revision of school district, curricula, or enrollment policies to implement equalization of educational opportunity for all. I.C. § 20-8.1-2-3. (emphasis added.)

The long-established right of school boards to eradicate the deleterious effects of segregation irrespective of cause was recognized by the Supreme Court of the United States in Swann:

School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities... 402 U.S. at 16, 91 S.Ct. at 1276, 28 L.Ed.2d at 566-67.

Following this pronouncement of the Supreme Court, in Higgins v. Board of Education of the City of Grand Rapids, 395 F.Supp. 444 (W.D.Mich.1973), aff'd, 508 F.2d 779 (6th Cir. 1974), the court first referred to a joint policy statement adopted by the Michigan Board of Education and the Michigan Civil Rights Commission and noted that:

... uniformally, it is acknowledged that elimination of racial imbalance, or de facto segregation, is desirable in and of itself, regardless of cause, and that it is educationally important to children of all races in preparing them to exist harmoniously in a pluralistic, melting-pot society. 395 F.Supp. at 486.

The court then readily acknowledged "the right of school authorities, under their broad powers to achieve better racial balance and to eliminate de facto segregation even absent a constitutionally imposed obligation to do so." Id.

As a...