No. 87-1668.United States Court of Appeals, Tenth Circuit.
December 11, 1989. Rehearing and Rehearing En Banc Denied January 29, 1990.
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Christopher A. Hansen (Richard Jones, Wichita, Kan., Charles Scott, Sr., Charles Scott, Jr., Kansas City, Mo., and Joseph Johnson, Topeka, Kan., with him on the
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brief), American Civil Liberties Union Foundation, for plaintiffs-appellants.
Dan Biles, of Gates Clyde, Overland Park, Kan., Carl Gallagher, Asst. Atty. Gen. (Robert T. Stephan, Atty. Gen. with him on the brief), and K. Gary Sebelius (Ann L. Baker, Charles D. McAtee and Charles N. Henson with him on the brief) of Eidson, Lewis, Porter Haynes, Topeka, Kan., for defendants-appellees.
Appeal from the United States District Court for the District of Kansas.
Before McKAY, SEYMOUR and BALDOCK, Circuit Judges.
SEYMOUR, Circuit Judge.
[1] “[O]nce you begin the process of segregation, it has its own inertia. It continues on without enforcement.”[1] This comment by one expert on segregation in schools succinctly summarizes the state of affairs in Topeka. As a former de jure segregated school system, Topeka has long labored under the duty to eliminate the consequences of its prior state-imposed separation of races. Brown v. Board of Educ., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). The district court concluded that Topeka has fulfilled that duty, and that the school system is now unitary. Because we are convinced that Topeka has not sufficiently countered the effects of both the momentum of its pre-Brown segregation and its subsequent segregative acts in the 1960s, we reverse. Specifically, we hold that the district court erred in placing the burden on plaintiffs to prove intentional discriminatory conduct rather than according plaintiffs the presumption that current disparities are causally related to past intentional conduct. We are convinced that defendants failed to meet their burden of proving that the effects of this past intentional discrimination have been dissipated. We also reverse the district court’s holding that the Topeka school district has not violated Title VI. However, we affirm the court’s dismissal of the Governor of the State of Kansas and its ruling that the State Board of Education bears no liability for segregation in Topeka’s schools.I. [2] LEGAL HISTORY
[3] Prior to 1954, a Kansas statute permitted certain cities to maintain separate schools for white and black children below the high school level. In 1941, however, the Kansas Supreme Court held segregation in Topeka’s junior high schools to be unconstitutional. See Graham v. Board of Educ., 153 Kan. 840, 114 P.2d 313 (1941) (separate facilities not equal). Topeka was thus legally permitted to operate segregated schools only at the elementary level. The Topeka Board of Education operated such a system. In 1951, black citizens of Topeka filed a class action challenging the constitutionality of the Kansas law authorizing school segregation. Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I), followed, beginning a new era of American jurisprudence by bringing an end to the doctrine of “separate but equal” and declaring segregation unconstitutional.
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appropriate in school desegregation cases, it noted that “substantial progress” had already been made in Topeka. Brown v. Board of Educ., 349 U.S. 294, 299, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955) (Brown II). On remand, the district court criticized one aspect of the Board’s desegregation plan but described it overall as “a good faith effort to bring about full desegregation in the Topeka Schools in full compliance with the mandate of the Supreme Court.” Brown v. Board of Educ., 139 F. Supp. 468, 470 (D.Kan. 1955). The court retained jurisdiction of the case, and the decision was not appealed.
[5] Nineteen years later, in 1974, the Office of Civil Rights (OCR) of the Department of Health, Education, and Welfare (HEW) notified the Topeka school district that it was not in compliance with section 601 of Title VI of the Civil Rights Act of 1964.[2] After the Topeka Board of Education failed to adopt a plan designed to remedy the non-complying conditions identified by OCR, HEW began administrative enforcement proceedings against the Topeka school district. The Board filed suit in federal court and obtained a preliminary injunction against the administrative proceeding on the ground that the district court’s 1955 decision was a final order, and that the school district was still operating under that court order and still subject to the court’s jurisdiction. HEW was thereby precluded from taking administrative action. See generally Brown v. Board of Educ., 84 F.R.D. 383, 390-91 (D.Kan. 1979). In 1976, the Board submitted a plan acceptable to HEW, and both the administrative proceeding and the suit in federal court were dismissed. The Board implemented the plan over the next five years. [6] In 1979, a group of black parents and children sought to intervene in Brown as additional named plaintiffs on the ground that they were members of the original class and that the original named plaintiffs no longer had a sufficient interest in the matter to represent their interests. The intervenors asserted that Topeka has failed to desegregate its schools in compliance with the Supreme Court’s mandate, and that the Topeka school district currently maintains and operates a racially segregated school system. Their request to intervene was granted.[3] See Brown, 84 F.R.D. 383. A long discovery and motion stage followed the granting of the intervenors’ motion. [7] Trial took place in October 1986. The court found the Topeka school district to be an integrated, unitary school system Brown v. Board of Educ., 671 F. Supp. 1290 (D.Kan. 1987). The court also held that the Topeka school district had not violated Title VI of the Civil Rights Act of 1964, dismissed the Governor of Kansas from the case, and found that the State Board of Education bore no liability for racial conditions in the school district. This appeal followed.II. [8] BRIEF FACTUAL HISTORY [9] A. Population Change
[10] In 1950, Topeka’s population was approximately 10% black. While Topeka’s population grew significantly until 1970 and then dropped, the black percentage of the population remained approximately the same. The Hispanic population of Topeka has been slightly less than 5% since 1970. Other minorities make up less than 1.5% of the population.
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recently, the western side of Topeka was almost exclusively white. The black population of Topeka was concentrated in a few areas in the center of the city in the 1950s; it has since spread widely throughout the eastern part of the city and has gradually begun to move into the western side of Topeka.
[12] The percentage of black and minority children in the Topeka schools has long been higher than the percentage of blacks and minorities in the Topeka population as a whole and has risen over time. In 1952, black students constituted 8.4% of the total number of students in Topeka. By 1966, the percentage of black students in the Topeka school district was 11.6% and the percentage of minority students was 16.0%. In 1975, black students constituted 14.7%, and minority students 20.9%, of the school population. The latest figures used at trial, those for the 1985 school year, showed 18.4% black and 25.95% minority children in the system.[13] B. Elementary Schools
[14] In 1951, four Topeka elementary schools were reserved for black children, Buchanan, McKinley, Monroe, and Washington. Eighteen elementary schools educated white children. Black children were bused to their schools; white children attended neighborhood schools. 671 F. Supp. at 1291. Under the four-step plan approved by the district court in 1955, all elementary schools were to be opened by September of 1956 to black and white children under a neighborhood school policy. Id. at 1293. As a result of the new neighborhood school policy, three schools remained all- or virtually all-black (Buchanan (100%), Monroe (100%), Washington (99.4%)), and two others became more than 20% black in a school district with a black elementary student population of less than 10%.[4] McKinley was closed.
black schools (Buchanan, and Washington); another de jure
school (McKinley) had already been closed. The new schools were built in the newly acquired white areas and opened with all or virtually all white students. [16] Racial statistics were not kept in an organized fashion from 1956 to 1966. In 1966, the school district operated thirty-five elementary schools. There were some white students in every school. Minority students were present in thirty-two schools. Nineteen of the schools were 90 + % white. An additional seven schools were 80-90% white. Four schools were more than 50% minority, and a fifth was almost 50%. The highest percentage of minority students was 93.1% (Parkdale), and the lowest was 0% (Lyman, McEachron, and Potwin). Sixty-five percent of white students attended 90 + % white schools and an additional 18.7% attended 80-90% white schools. Close to half of all minority students attended 50 + % minority schools.[5] [17] A second major reorganization of the elementary schools took place in the late 1970s, after the HEW complaint was filed. Eight elementary schools closed over a six-year period, including the last of the four former de jure black schools (Monroe). In September 1982, when the reorganization had ended, minority and white students were present in each of the district’s twenty-six
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elementary schools.[6] Five schools were 90 + % white, and another seven were 80-90% white. Four schools were 50 + % minority, two of them were schools that had been 50 + % minority since 1966. The highest percentage of minority students was 60.6% (Highland Park North), and the lowest was 3.4% (McClure). Close to one-quarter of all white students attended the 90 + % white schools, and another third attended 80-90% white schools, totalling 58% overall. The percentage of minority students in 50 + % minority schools was 35.5%.[7] This was the status of the elementary schools three years after plaintiffs moved to intervene in this lawsuit on the grounds that the school system had not met its mandate to desegregate.
[18] With one or two exceptions, the relative percentages of white and minority students in the elementary schools have changed only by two or three percentage points since that time. The most significant change is that the schools with the highest white percentages have gained some minority students. Thus, in 1985, the lowest percentage of minority students in any school was 7.2% (McClure).[8][19] C. Secondary Schools
[20] In 1954, the Topeka school district operated six junior highs and one high school. Two schools were 90 + % white, and three were 80 + % white. The estimated percentage of black students at the junior high schools ranged from 1.7% (Roosevelt) to 30% (East Topeka).[9] While the dissent emphasizes that segregation was not mandated by law for the secondary schools when Brown I was decided, and the student bodies were racially mixed, Linda Brown Smith testified that the junior high school she attended in 1955 (Curtis) had an all-white faculty.[10] When she entered Topeka High school, she recalls that it had one black faculty member.[11]
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three junior highs were built. At the high school level, Highland Park high school was annexed, and Topeka West high school was built. All of these schools were in the newly acquired white outer part of the school district and opened as white or primarily white schools. 671 F. Supp. at 1299.
[22] In 1966, there were thus eleven junior high and three high schools. At that time, the average minority percentage for the junior high and high schools was 15.3% and 14.9%, respectively.[12] Of the junior highs, five had 90 + % white students and another three had 80-90% white students; one had 50 + % minority students. The highest percentage of minority students at one school was 61.8% (East Topeka), and the lowest percentage was 0% (Capper). Of the high schools, Topeka High was nearly one-quarter minority, Highland Park High had close to 15% minority students, and Topeka West had .4% minority students. French junior high school opened in 1970 in the southwestern part of the school district as a primarily white school. 671 F. Supp. at 1299. [23] The reorganization of the late 1970s in response to the HEW complaint included the junior high schools. Two junior highs closed in 1975. In 1980, five more junior highs closed and two schools were opened as the district shifted from a junior high (6-3-3) to a middle school (6-2-4) format. In 1981, after the end of the reorganization, there were six middle schools in the Topeka school district. Two were 90 + % white and one was 80-90% white. The highest percentage of minority students was 45.7% (Eisenhower) and the lowest 5.5% (French). By 1985, the relative percentages at some schools had altered by approximately 5%, but the pattern across the district had not changed.[13] The percentage of minority students at the three high schools was 39.8% (Highland Park), 32.5% (Topeka High), and 5.25% (Topeka West) in 1981, and 33.6% (Highland Park), 30.9% (Topeka High), and 7.9% (Topeka West) in 1985.III. [24] THE PARTIES
[25] All of the parties to this case have changed. The original plaintiff children have long since left the Topeka school system. The school district has been reorganized, and the State Board of Education came into existence in 1969. These changes have affected the posture of the litigation to some extent. The original named plaintiffs represented black elementary school children and their parents. Current named plaintiffs represent black children throughout the school system and their parents. The school district grew considerably in size as the city of Topeka annexed territory, although the school district’s boundaries were fixed about 1960 while the city continued to grow. The district was also renamed Unified School District # 501 as part of a state-wide reorganization of school districts in 1965. 671 F. Supp. at 1292. The State Board of Education is the product of a 1966 state constitutional amendment. Its powers differ
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considerably from those of its predecessor. Id.; Brief for Individually-Named Defendants Associated with the State Board of Education at 1, 3-4.
IV. [26] GENERAL PRINCIPLES OF UNITARINESS
[27] Unitariness is a finding of fact reviewed under the clearly erroneous standard.[14] Before we assess the status of school desegregation in Topeka, we set forth the principles that guide our consideration of the unitariness issue.
[30] A. Current Condition of Segregation
[31] The actual condition of the school district at the time of trial is perhaps the most crucial consideration in a unitariness determination. The plaintiff bears the burden of showing the existence of a current condition of segregation. The case law is decidedly unclear as to the precise meaning of that term.[17]
In our view, a plaintiff
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must prove the existence of racially identifiable schools, broadly defined, to satisfy the burden of showing a current condition of segregation. Racially identifiable schools may be identifiable by student assignment alone, in the case of highly one-race schools, or by a combination of factors where the school is not highly one-race in student assignment.
[32] Keyes v. School Dist. No. 1, 413 U.S. 189, 196, 93 S.Ct. 2686, 2691, 37 L.Ed.2d 548 (1973). [33] Although virtual one-race schools “require close scrutiny,” they are not always unconstitutional.[18] Swann, 402 U.S. at 26, 91 S.Ct. at 1281. Their existence in a system with a history of de jure segregation, however, establishes a presumption that they exist as the result of discrimination and shifts the burden of proof to the school system. Id. The presence of essentially one-race schools is thus sufficient to satisfy a plaintiff’s initial burden of showing a current condition of segregation. [34] Courts have used various standards to define “one-race schools.”[19] Standards may appropriately differ from school district to school district because the percentage of minority students may likewise vary.[20] Whatever the minority percentage district-wide, however, it is clear that a school with 90 + % students of one race is a predominantly one-race school.[21] Moreover, this is true whether the students at the school in question are white or minority.[22] [35] Where racial imbalance in student assignment is still extreme in a system that formerly mandated segregation, appellate courts have reversed findings of unitariness“What is or is not a segregated school will necessarily depend on the facts of each particular case. In addition to the racial and ethnic composition of a school’s student body, other factors, such as the racial and ethnic composition of faculty and staff and the community and administration attitudes toward the school, must be taken into consideration.”
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without looking to other factors.[23] However, no particular degree of racial balance is required by the Constitution.[24] A degree of imbalance is likely to be found in any heterogeneous school system. Therefore, the existence of some racial imbalance in schools will often not be conclusive in itself.
[36] Where numbers alone are insufficient to define racially identifiable schools, courts look to demography, geography, and the individual history of particular schools and areas of the city.[25] While a multi-race school cannot be classified as racially identifiable merely by tallying up the race of the students who attend it, such a school may be racially identifiable “simply by reference to the racial composition of teachers and staff, the quality of school buildings and equipment, or the organization of sports activities,” among other factors. Swann, 402 U.S. at 18, 91 S.Ct. at 1277.[26] These factors alone can establish a prima facia case of a constitutional violation. Id. Therefore, a plaintiff may prove a school to be racially identifiable by factors that may, but need not, include student assignment.[37] B. The Parties’ Burdens
[38] Once a plaintiff has proven the existence of a current condition of segregation, the school district bears the substantial burden of showing that that condition is not the result of its prior de jure segregation. Under the relevant Supreme Court decisions, mere absence of invidious intent on the part of the school district is not sufficient to satisfy its “heavy burden” of proof; the district’s duty is to act affirmatively, not merely to act neutrally.
[39] Dayton II, 443 U.S. at 538, 99 S.Ct. at 2979 (emphasis added) (citations omitted). See also Swann, 402 U.S. at 26, 91 S.Ct. at 1281 (burden on school board to establish current racial composition of schools not the result of their present or past actions). The school district must show that no causal connection exists between past and present segregation, not merely that it did not intend to cause current segregation. The causal link between prior and current segregation is not snapped by the absence of discriminatory intent alone, or even by a“[T]he measure of the post-Brown I conduct of a school board under an unsatisfied duty to liquidate a dual system is the effectiveness, not the purpose,
of the actions in decreasing or increasing the segregation caused by the dual system. As was clearly established in Keyes and Swann, the Board had to do more than abandon its prior discriminatory purpose. The Board has had an affirmative responsibility to see that pupil assignment policies and school construction and abandonment practices `are not used and do not serve to perpetuate or re-establish the dual school system.'”
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firm commitment to desegregation, where it is not accompanied b action that in fact produces a unified school district. Id.
[40] The dissent clearly has misconstrued the parties’ burdens. The emphasis throughout the dissent is on the necessity o plaintiffs proving a current condition of intentionalsegregation before any burden shifts to the school district. Although the revised dissent has removed a number of its prior references to “intentional” when discussing “current condition of segregation,” and contends that it has not misapplied the burden, the tenor of the current version of the dissent belies this assertion. See Dissent at 892 (“In a former de jure system, plaintiffs may establish the prima facie case by proving that there is a current condition of intentional segregation”) (emphasis added); id. at 904 (“a plaintiff may satisfy his initial burden of proof by relying upon evidence of `recent and remote intentionally segregative actions’ of the school board”) (emphasis added); id. at 917 (“This court misses the mark if it is implying that intent is not relevant in this case.”); id. at 920 (“intent, whether proven by direct or circumstantial evidence, remains an essential element.”); id. at 920-21 (“It is clear that to sustain the presumption, the plaintiffs were required to prove `a current condition of segregation fro intentional state action.'”) (emphasis added); id. at 952 (“The requirement of a current condition of segregation resulting from past or present segregative intent (as opposed to segregation resulting from voluntary demographic change), prior to the operation of the presumption, allows a school system to redeem itself.”) See also Dowell v. Board of Educ., 890 F.2d 1483, 1519 (10th Cir. 1989) (Baldock, J., dissenting) (“To understand the problems with this court’s approach, it is necessary to understand how the burden of proof is allocated before a school district becomes unitary. In a system that was statutorily or officially dual, plaintiffs may establish the prima facie case by proving that there is a current condition of intentional segregation; that the de jure system or its vestiges remain or were reestablished in part of the school system.”) (emphasis added). [41] On the contrary, however, once a school system has been declared unconstitutional because of the existence of de jure
segregation, “[u]ntil the . . . School System achieves unitary status, official action that has the effect of perpetuating or reestablishing a dual school system violates the defendants’ duty to desegregate.” Pitts v. Freeman, 755 F.2d 1423, 1427 (11th Cir. 1985) (emphasis in original); see also, e.g., Morgan v. Nucci, 831 F.2d 313, 329 (1st Cir. 1987) (“[T]he fact that a particular school policy or program may be `racially neutral,’ in that it no longer reflects discriminatory animus, does not prove that the effects of prior discrimination have been purged”). Even the dissent in Dayton II recognized that “the affirmative duty renders any discussion of segregative intent after 1954 gratuitous.” 443 U.S. at 542-43, 99 S.Ct. at 2982-83. [42] The dissent falls into this error by viewing this case as one of initial liability. The cases the dissent relies on for its statements about plaintiffs’ need to prove intentional segregation are all cases describing a plaintiff’s duty to establish de jure segregation in the first instance. See, e.g., Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979) (dissent at 892, 903-904, 911, 917) Keyes (dissent at 892, 903-904, 919, 920-21). This is not such a case. As in Swann, plaintiffs here are alleging that a school system which has already been declared unconstitutional in earlier years has never fulfilled its affirmative duty to eradicate the effects of that segregation. Under these circumstances, plaintiffs need only show that current racial disparities exist, not that such disparities are the result of current intentional segregation on the part of the school board. See Swann, 402 U.S. at 26, 91 S.Ct. at 1281. This is not a liability case in which plaintiffs must prove that the school board has committed unconstitutional acts; that was established in 1954.
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[43] Where a plaintiff has established segregation in the past and the present, it is “entitled to the presumption that current disparities are causally related to prior segregation, and the burden of proving otherwise rests on the defendants.”[27] School Board of the City of Richmond v. Baliles, 829 F.2d 1308, 1311 (4th Cir. 1987); see also Dayton II, 443 U.S. at 536, 99 S.Ct. at 2978 (systemwide nature of de jure schools in 1954 “furnished prima facie proof that current segregation . . . was caused at least in part by prior intentionally segregative official acts [and] judgment for the plaintiffs was authorized and required absent sufficient countervailing evidence by the defendant school officials.”); Keyes, 413 U.S. at 211 n. 17, 93 S.Ct. at 2699 n. 17 (after de jure segregation is established, “the burden becomes the school authorities’ to show that the current segregation is in no way the result of those past segregative actions.”); Vaughns v. Board of Educ., 758 F.2d 983, 991 (4th Cir. 1985) (same). This presumption ensures that subconscious racial discrimination does not perpetuate the denial of equal protection to our nation’s school children.[28] A focus on provable intent alone would deny a remedy to too many Americans. [44] The dissent asserts that under this view of the law, liability in this case would be frozen as of 1954 and “we merely would decree a remedy based upon the failure of the school board to have absolute racial balance at every school and much of this court’s opinion . . . would be superfluous.” Dissent at 894. Of course, liability is not frozen; it just remains until the school board, not the plaintiffs, bears the burden of proving that current racial disparities in the school system are not the result of the prior segregated school system. [45] Contrary to the district court’s apparent conclusion, see 671 F. Supp. at 1297, remoteness in time does not make past intentional acts less intentional. See Dayton II, 443 U.S. at 535-36, 99 S.Ct. at 2977-78; Keyes v. School Dist. No. 1, 413 U.S. 189, 210-11, 93 S.Ct. 2686, 2698-99, 37 L.Ed.2d 548 (1973). The passage of time merely presents an opportunity for a school district to show that the presumptive relationship between th de jure system and the current system is so attenuated that there is no causal connection. See id. at 211, 93 S.Ct. at 2699. [46] What the school district has done to integrate is crucial in determining whether the causal link between the prior segregation and the current disparities has been severed. The district may carry its burden by showing that it has acted affirmatively to desegregate. Absent such proof, the court must presume that current segregation is the result of prior intentional state action. A showing that the school district has not promoted segregation andPage 864
has allowed desegregation to take place where natural forces worked to that end is insufficient.
[47] The ultimate test of what the school district has done is its effectiveness, most significantly its effectiveness in eliminating the separation of white and minority children.[29]While a district is not always required to choose the most desegregative alternative when it selects a particular option,[30] the result of the sum of the choices made by the district must be to desegregate the system to the maximum possible extent.[31] Furthermore, the school district may “not . . . take any action that would impede the process of disestablishing the dual system and its effects.” Dayton II, 443 U.S. at 538, 99 S.Ct. at 2979. [48] One choice frequently made by school districts, and the one made in Topeka, is to use a neighborhood school plan as the basis for student assignment. Neighborhood schools are a deeply rooted and valuable part of American education.[32] To the extent that neighborhoods are themselves segregated, however, such plans tend to prolong the existence of segregation in schools.[33] Thus, they must be carefully scrutinized. They are not “per se
adequate to meet the remedial responsibilities of local boards.”Davis, 402 U.S. at 37, 91 S.Ct. at 1292; see United States v. Board of Educ., Indep. School Dist. No. 1, Tulsa County, 429 F.2d 1253 (10th Cir. 1970).[34] [49] Neighborhood school plans must be both neutrally administered and effective. A plan that is administered in a scrupulously neutral manner but is not effective in producing greater racial balance does not fulfill the affirmative duty to desegregate.[35] It is equally important that a plan’s neutrality be more than surface-deep. We have specifically held that when minorities are concentrated in certain areas of the city, neighborhood school plans may be wholly insufficient to fulfill the district’s affirmative duty to eliminate the vestiges of segregation. Tulsa County, 429 F.2d at 1258-59. Even when neighborhood school plans hold the promise of being effective, courts must recognize that the school district’s choices on such questions as where to locate new schools, which schools to close, how to react to overcrowding or underutilization, and what transfer policy to offer, all have obvious impact on the school
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attendance boundaries the district can draw under a neighborhood school plan.[36] If these choices are not made with an eye toward desegregation, a neighborhood school plan may “further lock the school system into a mold of separation of races.”Swann, 402 U.S. at 21, 91 S.Ct. at 1278. Ultimately, whether the use of a neighborhood school plan in a particular case is consistent with a school district’s duty to desegregate turns on whether the “school authorities [have made] every effort to achieve the greatest possible degree of actual desegregation taking into account the practicalities of the situation.”Davis, 402 U.S. at 33, 91 S.Ct. at 1290. Contrary to the dissent’s suggestion, dissent at 897, a school district which chose a neighborhood school system in 1954 is not insulated from a later contention that neighborhood schools did not result in desegregation.[37] “A school system is not . . . automatically desegregated when a constitutionally acceptable plan is adopted and implemented, for the remnants of discrimination are not readily eradicated.” Ross v. Houston Indep. Sch. Dist., 699 F.2d 218, 225 (5th Cir. 1983).[38]
[50] Actions the school district has not taken are also relevant in considering what the district has done. A school district which has not made use of such classic segregative techniques as gerrymandering, discriminatory transfer policies, and optional attendance zones is more likely to have fulfilled its duty to desegregate than a district that has done so.[39] Similarly, a school district that has made use of the various techniques available to encourage voluntary desegregation is more likely to have fulfilled its duty than one that has not.[40] Such techniques may include, for example, the establishment of magnet schools and vigorous official encouragement of desegregative transfers. [51] Finally, objective proof of the school district’s intent must be considered. How a district lobbies its patrons and government agencies on issues that affect desegregation, whether it seeks and then heeds the desegregation recommendations of others, and the cooperativeness of the district in complying with court orders, for example, bear on the manner in which the district has shaped the current conditions in the school district.[41] [52] C. Maximum Practicable Desegregation[53] What more can and should be done, if anything, is the final component in a determination of unitary status.[42]
Essentially,
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a defendant must demonstrate that it has done everything feasible. Courts must assess the school district’s achievements with an eye to the possible and practical, but they must not let longstanding racism blur their ultimate focus on the ideal.[43]
[54] In most unitariness cases, the school district has been implementing a court-approved desegregation plan under active court supervision. The question is usually whether closer adherence to the plan is practical or whether the plan has achieved its objectives.[44] The district court in such cases has been intimately involved with the process of desegregation and is well aware of the obstacles it faces. The court can thus make an informed judgment on the possibilities of further desegregation. Where the school district has complied with the desegregation plan to the best of its ability, and has done what can be done in spite of the obstacles in its way, it is reasonable to conclude that no further desegregation is feasible.[45] [55] The present case is one of those rare ones in which the unitariness determination is not directly tied to the execution of a particular desegregation plan. In such a case, the consideration of whether further desegregation is practicable must include the obstacles that are likely to stand in its way, and whether they may be circumvented without imperiling students’ health or the educational process. See Swann, 402 U.S. at 30-31, 91 S.Ct. at 1282-83. Where there are no significant barriers to desegregation, or such barriers as exist may be overcome without undue hardship, further desegregation is practicable. See id. at 28, 91 S.Ct. at 1282 (mere awkwardness or inconvenience is no barrier to carrying out desegregation plan). [56] In sum, when a school system was previously de jure, a plaintiff bears the burden of showing that there is a current condition of segregation. It may do so by proving the existence of racially identifiable schools. The school district must then show that such segregation has no causal connection with the prior de jure segregation, and that the district has in fact carried out the maximum desegregation practicable for that district. We now apply these legal principles to Topeka.V. [57] THE FINDING OF UNITARINESS
[58] Because Topeka’s schools formerly operated under a system o de jure segregation, “[t]he board’s continuing obligation . . . [has been] `to come forward with a plan that promises realistically to work . . . now, . . . until it is clear that state-imposed segregation has been completely removed.'”Columbus Board of Educ. v. Penick, 443 U.S. 449, 459, 99 S.Ct. 2941, 2947, 61 L.Ed.2d 666 (1979). Prior to this case, no court had pronounced the Topeka school system unitary; hence, this duty never dissipated. The district court concluded, however, that the effects of de jure segregation have been eliminated in Topeka. On appeal, plaintiffs attack this determination.
[59] A. Burden of Proof
[60] Plaintiffs argue initially that the district court improperly required them to prove intentional discriminatory conduct on the part of the school district over the course of the decades instead of according them the benefit of a presumption that current segregation stems from the prior de jure system. Plaintiffs quote a number of sentences from the district court’s opinion as support for their argument that the court placed on them the burden of proof on intent. Brief for Plaintiffs-Appellants at 27.[46] The court itself expressed some confusion
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as to the proper burden of proof. 671 F. Supp. at 1295. We have considered both these citations and the tenor of the district court’s opinion as a whole, and we are convinced that the court focused too greatly on the school district’s lack of discriminatory intent. Although the percentage of minority students in Topeka is lower than in other cities involved in desegregation cases and consequently the statistics alone do not appear as egregious, we are persuaded that this overemphasis on the school district’s intent led the court to make the same errors as did the district court in Dayton II. It failed “to apply the appropriate presumption and burden-shifting principles of law.” Brinkman v. Gilligan, 583 F.2d 243, 251 (6th Cir. 1978), aff’d sub nom. Dayton Board of Education v. Brinkman, 443 U.S. 526, 99 S.Ct. 2971, 61 L.Ed.2d 720 (1979).[47]
[61] The district court made the following findings: that the neighborhood school attendance boundaries drawn in 1955 had the effect of maintaining segregation; that the construction of new schools since that time had the effect of “promot[ing] racial separation”; that the reassignment of students from previous de jure schools to adjacent schools with higher-than-average percentages of minority students had the effect of increasing those percentages; and that the assignment of faculty had the effect of placing minority faculty disproportionately at schools with higher-than-average minority student percentages. 671 F. Supp. at 1300, 1301, 1304-05. It is clear from the court’s other findings that the school district’s use of space additions, its siting of Topeka West high school, its drawing of attendance boundaries, and its failure to adopt various reorganization plans did not further the process of desegregation. Id. at 1298-1301, 1308-09. Nevertheless, the court’s discussion of most of these aspects of Topeka’s history ends with the conclusion tha because these actions were not taken with the intent to discriminate and were consistent with a “race-neutral” neighborhood school plan, they did not promote segregation.[48] The court evidently believed that if these two criteria, i.e., no intent to discriminate and consistency with a race-neutral neighborhood school plan, were met, the school district’s actions would pass constitutional muster. The Supreme Court has made clear, however, that a “race-neutral” neighborhood school policy is not sufficient where it fails to remedy de jure segregation:[62] Swann, 402 U.S. at 28, 91 S.Ct. at 1282 (emphasis added).[49] [63] While we agree with the district court’s findings that the current school administration is not presently acting with discriminatory intent — indeed, there is evidence that the present school board has some commitment to desegregation — we are persuaded that the court failed adequately to weigh the conduct of the school district for the past thirty years, and the current effects of the conduct. The court erred by limiting the school district’s burden merely to showing that it had nondiscriminatory reasons for acting as it did. As thirty years of desegregation law have made clear, the Constitution requires more than ceasing to promote segregation. See part IV supra.“Absent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the interim
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period when remedial adjustments are being made to eliminate the dual school systems.
“. . . `Racially neutral’ assignment plans proposed by school authorities to a district court may be inadequate; such plans may fail to counteract the continuing effects of past school segregation
resulting from discriminatory location of school sites or distortion of school size in order to achieve or maintain an artificial racial separation. When school authorities present a district court with a `loaded game board,’ affirmative action in the form of remedial altering of attendance zones is proper to achieve truly non-discriminatory assignments. In short, an assignment plan is not acceptable simply because it appears to be neutral.“
“[T]he measure of the post-Brown I conduct of a school board under an unsatisfied duty to liquidate a dual system is the effectiveness, not the purpose, of the actions in decreasing or increasing the segregation caused by the dual system.” Dayton II, 443 U.S. at 538, 99 S.Ct. at 2979. A lack of intent to discriminate is therefore insufficient. “In short, [a student] assignment plan is not acceptable simply because it appears to be neutral.” Swann, 402 U.S. at 28, 91 S.Ct. at 1282. Mere adherence to a race-neutral but ineffective neighborhood school plan is insufficient. In general, any course of action that fails to provide meaningful assurance of prompt and effective disestablishment of a dual system is unacceptable. Wright v. Council of City of Emporia, 407 U.S. 451, 460, 92 S.Ct. 2196, 2202, 33 L.Ed.2d 51 (1972). The district court did not heed this mandate. While it did find that the school district had taken some actively desegregative actions, we are convinced that the court’s overall conclusion as to unitariness was fatally infected by the inadequacy of the burden of proof standard to which it held the school district.
[64] B. The Evidence
[65] In order to assess the district court’s finding of unitariness under the appropriate burden of proof and the general principles we have outlined, we turn to a more specific review of the record. As a general matter, it is important to note that much of the record evidence consists of statistics and other undisputed facts[50] Our differences
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with the district court lie mainly in how the essentially undisputed facts are assessed in light of the school district’s mandate to dismantle the segregated school system. We believe that the district court’s finding of unitariness is flawed by the undue deference it gave to the school district’s neighborhood school policy and by the court’s failure to give proper weight to its own findings that certain actions and omissions by the school district had a segregative effect.[51] Cf. Diaz v. San Jose United School Dist., 733 F.2d 660, 674 (9th Cir. 1984) (on banc) (“In making its determination in respect to the Board’s intent, the district court erred in failing to give weight to the cumulative impact of the evidence”; district court’s findings that defendants acted without segregative intent held clearly erroneous).
[66] 1. Current Condition of Segregation in Topeka[67] The district court found that “there are disparities in the racial makeup of various schools enrollments,” and that “[p]laintiffs have demonstrated that in general there are a greater than average number of minority faculty and staff in schools with a greater than average number of minority students.”671 F. Supp. at 1295, 1304. Like most courts, however, the district court did not discuss separately the issues of current segregation and the causal connection between that segregation and the prior de jure segregation. [68] As we have pointed out, the simplest and most compelling evidence of segregation is the presence of predominantly one-race schools. In a system such as Topeka’s, however, in which the minority student population is relatively small, there may be a number of primarily white schools even though minority students are spread through a significant number of other schools. In such a system, it is the concentration of minority students that is usually the hallmark of discrimination.[52] Because the significance of mostly white schools is therefore not necessarily as great in a mostly white system as it would be in a system with a heavy minority population, we focus on the broader form of racial identifiability discussed in part IV A above. In support of their argument that there is currently segregation in Topeka, plaintiffs point primarily to student assignment, and faculty and staff assignment.[53] We consider each in turn, and then together. [69] a. Student Assignment
[70] Each of the experts who testified at trial used a different standard for determining whether a school was racially identifiable in student assignment. Plaintiffs’ main experts, Mr. Lamson and Dr. Foster, each used standards that took the percentage of black or minority students actually enrolled in the elementary or secondary schools
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(26% in 1985), and then added and subtracted some number to obtain a range within which they did not consider schools to be racially identifiable on the basis of student assignment alone. Their methods differ to some extent, but for 1985 either method leads to a range of 11-41% (26% plus or minus 15%).[54] The school district’s primary expert on this issue, Dr. Armor, used an absolute rather than a relative standard. In his view, desegregated schools should optimally have 20-50% minority students, regardless of the percentage of minority students in the system. Dr. Armor also allowed a variance, which resulted in a range of acceptability of 10-60%.[55]
[71] As plaintiffs point out, under any of these methods there are schools in Topeka that are racially identifiable by student assignment. Even under the most generous of these numerical standards, proposed by the school board’s expert, there are six elementary and three secondary schools that are racially identifiable by student assignment. [72] Notwithstanding the dissent’s view that the statistics regarding the percentages of minorities in the racially overbalanced schools do not add up to a current condition of segregation, we believe the figures speak for themselves. See supra at 856-58. In this connection, the charts in the dissent showing the racial inventories over the years at Belvoir, Hudson, Highland Park North, Lafayette, Quinton Heights, and Lowman Hill speak more eloquently about the current condition of segregation in Topeka than words ever could. See dissent at 936 n. 43; 938 n. 44; 939 n. 45; 939-40 n. 46; 941-42 n. 47; 946 n. 51. [73] b. Faculty and Staff Assignment[74] To determine racial identifiability by faculty/staff assignment, plaintiffs again used a standard based on the actual percentage of minority employees and a range of a few percentage points above and below that number. The school district contested the accuracy of plaintiffs’ standard but presented no alternative one. We do not adopt plaintiffs’ standard, but instead evaluate the data on its face.[56] [75] In 1985, the percentage of minority faculty/staff in the Topeka school system was 11.2% for the elementary schools and 12.65% for the secondary schools. In the
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elementary schools, the percentage of minority faculty/staff at individual schools ranged from 0% to 33.3%. Nine schools had less than 5% minority faculty/staff, and two had more than 25%.[57] In the secondary schools, the percentage ranged from 2.5% to 24.7%. One school had less than 5% minority faculty/staff, an additional three schools had less than 10%, and one had more than 20%.[58]
[76] Faculty/staff data have been kept only since 1973 and, except for 1981, that data does not distinguish between faculty and staff. Rec., ex. vol. IV, at 263-68. Faculty/staff includes managerial personnel at both the school and district level, teacher aides, clerical/secretarial employees, skilled and technical employees, and service workers, as well as teachers and other professional staff. The distinction between facultyPage 872
and staff is particularly relevant because the percentage of minority employees has always been lower than the minority student population, and has fallen steadily at the elementary level over the period such data was kept. Moreover, minorities are represented more heavily in staff positions than in faculty positions. In 1985, for example, district-wide statistics showed that 11.3% of elementary teachers and 8.0% of secondary teachers were minorities, while 19% of teacher aides and 20% of service workers were minorities. Rec., vol. IV, at 268. Any one faculty/staff person listed at any one school is thus more likely to be a teacher aide or service worker than a teacher.
[77] We recognize that the small number of faculty and staff at any one school means that the presence or absence of one minority employee may have a considerable effect on the school’s minority percentage. Nevertheless, we see no obviously neutral reason why McClure elementary school has no minority employees among its 25 faculty/staff and Topeka West high school has 3 among 120, while Avondale East elementary school has 10 minority faculty/staff out of a total of 31 employees and Robinson middle school has 12 out of 49. [78] c. Factors considered together[79] Because faculty/staff assignment is largely within the control of the school district, it is a potent tool for demonstrating that the district does or does not itself identify certain schools as white or minority. It also provides an opportunity for undoing some of the harm of segregated student assignments, because both white and minority students may benefit from the presence of minority role models. See Washington v. Seattle School District, No. 1, 458 U.S. 457, 472, 102 S.Ct. 3187, 3196, 73 L.Ed.2d 896 (1982) (“white as well as Negro children benefit from exposure to ethnic and racial diversity in the classroom”). Conversely, if the district disproportionately assigns minority faculty/staff to those schools with the highest percentages of minority students, the district is in effect reinforcing the identification of particular schools as white or minority. This practice of disproportionate assignments also reinforces the irrational notion that minority teachers are inferior and not fit to teach white children. [80] In Topeka, although the correlation is not completely uniform see 671 F. Supp. at 1305, there is a clear pattern of assigning minority faculty/staff in a manner that reflects minority student assignment. This correlation is fatal to the school district’s effort to show a lack of current segregation. Both student assignment and faculty/staff assignment can be expected to vary from school to school, the former because of population distribution, and the latter, to a lesser extent, because of differing teacher credentials. When they vary together, as they do in Topeka, leading to schools that are noticeably more white or more minority in both students and faculty, it is difficult to posit a neutral explanation.[59] The school district has not attempted to provide one.
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[81] Moreover, when we look beyond the numbers, we find that the schools that are marked as white or minority by their students and faculty/staff are also so marked by their geography, the residential population in their attendance areas, and by their history. Of the six racially identifiable elementary schools detected by Dr. Armor’s method, five are now and always have been attended almost exclusively by white students. They are located on the western and northwestern edges of the school district, areas with mostly white populations.[60] The same is true of the three secondary schools. See infra part V B(2)(c)(vii). The one remaining elementary school, Belvoir, is located on the eastern edge of the school district. The area has long been inhabited by a significant minority population, and the school’s student population is now and has been for over twenty years more than half minority. See infra part V B(2)(c)(i). Finally, the correlation between student assignment and faculty/staff assignment is not a one-year fluke. The same correlation has existed throughout the course of this litigation. See infrapart V B(2)(b)(ii). Considering all of these factors together, there is sufficient evidence to support plaintiffs’ contention that there is a current condition of segregation in Topeka.[61]
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[82] 2. The Causal Link Between De jure Segregation and the Current Condition of Segregation[83] Brown I established that the Topeka school system was one o de jure segregation. Because there is a current condition of segregation, we turn our attention to the causal link between these two conditions of segregation, which must be assessed in light of the burden and factors set out in part IV B, supra. We are convinced that the school district failed to meet its burden of showing the absence of this link. This failure, which the district court did not see because it failed to impose on defendants the proper burden of proof, is the key to our reversal. [84] Timing is central to an assessment of the Topeka school district’s actions. After what was described as a “good faith” beginning, Brown, 139 F. Supp. at 470, the course the school district followed in the late 1950s and early 1960s may fairly be characterized as segregative. The decade from 1956 to 1966 is important because it established a framework from which the school district subsequently deviated very little.[62] A period of quiescence then followed, during which the system was simply administered as it stood. It was not until HEW threatened to withhold federal funds in the mid-1970s that the school district undertook some positive action to desegregate its schools. After that brief flurry of action, the school district again turned its attention elsewhere, but to its good fortune the oft-maligned forces of demography began to work in its favor. Two things are apparent from the record. First, Topeka has largely acted as if it had fulfilled its duty to desegregate at the conclusion of the four-step plan implemented in the 1950s. Second, although Topeka’s schools have in fact become less segregated in the last decade, this lessening of segregation is due in part to forces beyond the control of the school district. Moreover, those desegregative actions which the school board did undertake were primarily the result of pressure from the federal government, or were instituted after this lawsuit was filed.[63] Although its record is better than that of many other school districts, Topeka has engaged in voluntary desegregation with little enthusiasm. [85] a. The general pattern in each decade[86] i. The mid-50s to mid-60s
[87] This period was one of significant change in the Topeka school district. Most notably, the district expanded greatly with several city-imposed annexations at the end of the 1950s, the beginning of a spurt in population growth and shift to the newly annexed areas, and the school district’s consequent opening of new schools in this outer white part of Topeka. As the white population moved outwards, the inner city population became increasingly heavily minority, and inner city schools were closed. [88] The mid-60s found the Topeka school system still heavily segregated. While the numeric polarization between schools had
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decreased to some extent systemwide,[64] and minority students were somewhat less concentrated,[65] the number of schools serving primarily white children had increased. Geographic polarization also increased, as a result of the building of so many primarily white schools on the outer edges of the district. Plaintiffs introduced evidence tending to show that the school district’s use of portable classrooms and optional attendance zones served to maintain segregation by concentrating students of one race at certain schools. The school district’s expert, Dr. Clark, conceded that his study of changes in attendance zone population because of changed attendance boundaries led him to conclude that one such boundary change might have had segregative effects not explainable solely by demographic shifts.[66]
[89] We have no doubt that during this period the school district in fact maintained and perhaps promoted a segregated system by current standards. Moreover, the system that existed after the wave of school openings and closings ended, i.e., the location of schools and the race of their students, formed the basis for the current elementary system. Therefore, while the school district should not be judged primarily by actions now twenty or more years in the past, neither can those actions be ignored.[90] ii. Mid-60s to Mid-70s
[91] This period was one of quiescence in the school district. Enrollment in the Topeka school system peaked in 1969, substantially ending the need for new school buildings. Outer Topeka continued to grow in white population, particularly in the western part of the city. Minority population began to spread out of its highly concentrated central areas into eastern Topeka.
It is apparent that while Topeka did not promote a segregated school system during this period, it maintained the system then in effect notwithstanding its affirmative duty to eliminate segregated schools.
[93] iii. Mid-70s to the present
[94] In 1974, the HEW compliance action began the third phase of the Topeka school system since Brown I. At the elementary level, HEW cited unequal facilities for minority and white children as well as “student
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racial compositions not consonant with a unitary plan.” Five elementary schools were specifically listed as having “substantially disproportionate minority student compositions clearly the result of a former dual pattern of operation.” At the secondary level, HEW found that the junior high schools attended by most minority students were inferior in facilities to those schools attended largely by white students. In addition, the district’s transfer plan was criticized.[69] The Board denied that the district was in noncompliance and obtained an injunction against further HEW administrative proceedings. Nevertheless, the Board agreed to take “administrative steps to assure a more perfect unitary school district.”[70] It developed and implemented two plans largely approved by HEW.
[95] These plans had some success. At the end of the reorganization, there were no 90 + % minority elementary schools, the attendance boundaries of two 90 + % white schools had been redrawn so that they were no longer one-race, and a third one-race white school had been closed. At the secondary level, two heavily minority and one primarily white junior high school had been closed, although the minority population of one other junior high school had risen significantly as a result of the reorganization. The school district’s desegregation indices for elementary schools dropped significantly between 1975 and 1981.[71] [96] Some of this decline, however, was the result of the movement of minorities into the western part of the school district. During the same six-year period, three additional elementary schools rose above the 10% minority level solely because of this demographic change.[72] This movement has continued. In 1985, two additional elementary schools were just barely no longer one-race for that reason.[73] [97] The defendants’ experts, Dr. Clark, see, e.g., rec., vol. XI, at 2338-39, and Dr. Armour, see, e.g., rec., vol. XIII, at 2579, the district court, see 671 F. Supp. at 1302-03, 1310, and the dissent, see, e.g., dissent at 937, 938, 939, 941, all mistakenly believe that the changing demographics which resulted in unfavorable racial balances at various schools excuses the school board from achieving more acceptable racial balances. This view is clearly wrong where, as here, the school system is under an affirmative duty to dismantle a dual school system. “Until a unitary system is created, a school system is not absolved from this duty by reason of demographic changes.” Vaughns v. Board of Educ., 758 F.2d at 988; see also, Lee v. Macon County Bd. of Educ., 616 F.2d 805, 809-10 (5th Cir. 1980); cf. Tasby v. Wright, 713 F.2d at 91 n. 3, 93 (school districts’ white population was 58.2% when lawsuit filed in 1970 and dropped to 29.53% by 1981; school district not yet unitary). It is only[98] Ross v. Houston Indep. Sch. Dist., 699 F.2d at 225. The school district’s excuse for the racial imbalance which exists today in Topeka’s schools is that shifting residential patterns caused the problem. That is an unacceptable excuse when the school“[w]hen state officials have not only made good-faith efforts to eliminate the vestiges of segregation, but have actually achieved a school system clean of every residue of past official discrimination, [that] immutable geographic factors and post-desegregation demographic changes that prevent the homogenation of all student bodies do not bar judicial recognition that the school system is unitary.”
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district has never fully dismantled the effects of the prior de jure segregation.
[99] Other changes that took place in Topeka from the mid-70s to the date of trial are as follows: elections to the Board were changed in 1976 to ensure that all parts of the city were fairly represented; the Board has now, and has had for some time, significant minority representation; in 1981, the district abandoned a slightly segregative majority-to-minority transfer policy for a transfer policy that is slightly desegregative; in 1984, while this trial was pending, a black superintendent was appointed; and, five days before the beginning of trial, the district adopted an explicit policy against discrimination in faculty and staff assignment.[74] These changes are deliberate and voluntary actions on the part of the school district, and constitute evidence that the district is, as it claims, now committed to desegregation.[75] [100] There is no doubt that the Topeka school system has improved dramatically in the last ten years as far as desegregation is concerned. However, the system was equally undoubtedly in need of such improvement. The question now is whether these changes broke the causal link between the system that existed prior to them and the current system. Based on our review of the record, we have a definite and firm conviction that they did not. Approximately one quarter of Topeka’s minority elementary students still attend three schools more than 50% minority, two of which have fallen into this category since at least 1966. One-race white schools have existed throughout the relevant period; many remain, and those that are no longer within the 90 + % white range are still heavily white schools. Most of the reorganization took place in the center of the school district; the schools on the periphery — the ones most clearly marked as minority or white schools — were largely unaffected. The distribution of faculty/staff has improved, but in 1985 there was still one school with no minority faculty/staff and eight schools with only one full- or part-time minority faculty/staff person, who may or may not be a teacher or other professional, and these schools are those same schools that have lacked minority faculty/staff since the 1960s. This is a system improved, but it is still the same system. [101] b. Individual Factors[102] Green v. County School Board, 391 U.S. 430, 435, 88 S.Ct. 1689, 1693, 20 L.Ed.2d 716 (1968), identified faculty, staff transportation, extracurricular affairs, and facilities as facets of school operations that must be considered in determining racial identifiability of schools. Swann added student attendance, school siting, opening and closing, and the drawing of attendance boundaries as factors to be weighed. Swann, 402 U.S. at 25-29, 91 S.Ct. at 1280-83. The district court made detailed findings as to most of these. We discuss below those factors that most clearly demonstrate the continuing causal link between past and present segregation.
[103] i. Student assignment over time
[104] We begin by considering the subsequent history of the schools in existence at the time of Brown II. No real pattern emerges. Seventeen elementary schools have more or less maintained the same racial identity for the last twenty years, while nine have changed. For the most part, the major shifts in student attendance mandated by the school district have had relatively little effect, although there has been some
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improvement in the last ten years.[76] Nevertheless, the record convinces us that the causal connection between the Topeka school system in 1955 and the same system in 1985 has not been broken. The school district has unquestionably had the opportunity to draw up and execute a scheme designed to lead to comprehensive desegregation. Moreover, Topeka does not have the kind of geographical barriers that have sometimes frustrated desegration plans.[77] Its minority population is spread over half the city, not concentrated in hard-to-reach enclaves.[78] It has altered the attendance boundaries of almost every school and closed many of them; it has in place a slightly desegregative transfer plan that potentially could be significant; and it has apparently faced little or no racially-motivated opposition from the community.[79] Nonetheless, there is, we repeat, no pattern to the changes over the years. There should have been one. We simply see no evidence that Topeka dedicated itself to desegregation prior to the reopening of this case.[80] Although former members of the Board testified that they did not vote for plans with segregative effects, they did not testify that they regularly took desegregation concerns into account.[81] The reaction of at least one Board member to the white flight of the 1950s and 1960s was “What could we do? We can’t make people not move, no way.”[82] After hearing the testimony of the Board members, the district court commented, “I am not interested in just any intentional acts that would hinder integration. I am also wondering if there is any action taken by this school board and past school boards to promote that integration, rather than hinder. . . . [A]re we going to get to this . . .?” Rec., vol. XII, at 2534. This perceptive question focused on precisely what is missing from the school district’s evidence. By no stretch of imagination can the school district’s conduct be characterized as action “with all deliberate speed” to “convert to a unitary system in which racial discrimination would be eliminated root and branch.”[83]
[105] We do not ignore the changes made to the school system in the late 1970s. In our view, however, the effect of these changes was to make a system that was highly segregated as to student assignment into a system that is still segregated, although somewhat less so.Page 879
[106] ii. Faculty/staff assignment over time
[107] Plaintiffs do not dispute the district court’s finding that th hiring of minority faculty and staff is not now discriminatory. 671 F. Supp. at 1304. They do challenge the court’s conclusion with respect to the assignment of faculty and staff. They point out that the court in fact found that the assignment of faculty/staff is disproportionate, and they argue that this disproportion, and its consistency over time, is “one of the classic indices of a segregated school system.” Brief for Plaintiffs-Appellants at 38. They criticize the district court for having unduly minimized the import of this evidence of segregation.
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[111] iii. Attendance boundaries and how (not) changed
[112] Attendance boundaries determine the neighborhoods from which neighborhood schools draw their students. They can be used as an important tool in either imposing or undoing segregation under an ostensibly race-neutral neighborhood school policy. We do not disagree with the district court’s finding that attendance boundaries have not been drawn in recent years with racial animus. In the past, however, the school district drew boundaries with significantly segregative effects, although for the most part it avoided obvious gerrymandering. Many of the schools affected by segregative boundary changes were subsequently closed, and other schools lost their status as predominantly minority schools bordered by schools with much lower percentages of minority students when minorities moved into the residential areas of the bordering schools.
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[117] iv. Location of new schools
[118] All of the elementary schools and all but one of the secondary schools opened by the school district since Brown II were built in the white outer part of the district. Robinson middle school, which serves the central part of Topeka, is the sole exception. Furthermore, many of these schools were built near to the edges of the district. Plaintiffs criticize both the location of these schools and the fact that they opened at all. With respect to the location, they argue that Topeka deliberately placed new schools as far as possible from minority residential areas in order to polarize the district into white outer and minority inner schools. With respect to the new schools themselves, they argue that Topeka should have taken advantage of the underutilized inner schools; that is, that Topeka should have voluntarily bused white children from outer Topeka to the inner city schools instead of putting up new buildings.
[120] v. School closings
[121] In contrast to school openings, the majority of school closings took place in the central and middle parts of Topeka. Like school openings, this pattern was dictated largely by the population shift to the outer part of the school district. Plaintiffs do not contend that schools were closed for any other reason, or that the impact of the closings was borne primarily by minority students. They focus instead on the effect of school closings, primarily on the opportunity closings provided for more equitably distributing students to other schools. They contend that school closings of highly segregated schools were not desegregative in practice because the school district simply reassigned the students at those schools en masse to a nearby school which then took over the segregated status of the school closed. The evidence supports this contention for the 1950s and 1960s. Although most of the receiving schools remained schools with a majority of white students, plaintiffs argue that these reassignments served to identify the schools to which the school district would subsequently channel minority students. School closings in the 1970s and beyond had less segregated effects. In this decade, the effects of closings have been mixed. A few school closings were desegregative. These later closings have not completely undone the effect of the earlier closings, however. On the whole, most school closings in the 1970s cannot be said to be either segregative or desegregative.
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in the assignment of faculty and staff. In addition, the location of new schools intensified the system’s dual nature. The drawing of attendance boundaries and other means of reassigning students were rarely used to desegregate. The closing of schools is the most significant desegregative device Topeka utilized. Even here, it is only in a few cases that a closing can unqualifiedly be characterized as desegregative. As we stated earlier, Topeka notably failed to focus its efforts on the complete eradication of the effects of prior segregation.
[123] c. Individual schools[124] The dissent spends a great deal of time attacking our analyses of individual schools. The main point of that attack is that the increasing minority percentages for these schools resulted from demographics, not from school board actions. As we have previously stated, however, a school district is not absolved by demographics from its affirmative duty to desegregate before it achieves unitariness. See supra at 876-77. [125] Plaintiffs describe the history of the school district as one of targeting certain schools as minority. According to plaintiffs, while the identity of those schools shifts as population moves, the district as a whole is always polarized into schools with clear racial identities. We therefore consider what the district did and did not do with respect to individual schools.
[126] i. Belvoir elementary school
[127] Belvoir is and has been since the 1960s a school with one of the highest minority populations in the district. The school was annexed in the late 1950s and lies on the eastern edge of the current district boundary. Two federal housing projects were built within its attendance area in 1963 and 1965. Since 1966, its student population has never been less than 50% minority.[87] It is located in an area of minority population that was bordered by white populations to the north and south and a minority population to the west when the school was annexed. The bordering areas are now all areas with substantial minority populations.
[129] ii. Hudson elementary school
[130] The school district built Hudson in 1963 in newly annexed territory. It is on the southeastern edge of the district and opened as a primarily white school. While the passage of time has dissipated Hudson’s identity as a white school, this change is due solely to the spread of minorities into its attendance area, not to any action by the school district. The school was 46.55% minority in 1985-76. Rec., ex. vol. IV at 171.
[131] iii. Highland Park North elementary school
[132] Highland Park North was annexed to the school district in the late 1950s. Its percentage of minority students has risen significantly over the years: 21.6% in 1966, 42.1% in 1975, and 57.9% in 1985. This rise was paralleled by a shift in the surrounding residential population from primarily white to heavily minority. This shift is characteristic of the eastern part of the city, where Highland Park North is located. The only significant action the school district took with respect to Highland Park North was to assign it Parkdale students when that school closed. This reassignment increased Highland Park North’s minority percentage at a time when it was already high.
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[133] iv. Lafayette elementary school
[134] Lafayette was a white school in the Topeka school system at the time of Brown I. It was 13.7% black at the end of the four-step plan in 1956. Federally subsidized housing projects were built in Lafayette’s area in 1961 and 1962. By 1966, the school was 54.5% minority (26.1% black). The school was then a transition school between Parkdale elementary school to the southwest, with 85% minority students, and Sumner, State Street, and Rice elementary schools to the north and east, with 12.3%, 27.5% and 3% minority students, respectively. Belvoir, to the south, had approximately the same percentage of minority students. Lafayette has remained 55-65% minority (25-50% black). In 1985, Lafayette was 56.8% minority (41.4% black). It remains a transition school between schools with higher minority percentages to the south and lower percentages to the north and west.
[136] v. Quinton Heights elementary school
[137] Quinton Heights was a white school at the central southern part of the school district in the 1950s. At the end of the four-step desegregation plan it was 7.3% black. In 1959, Pierce, an annexed black school, and in 1964, Van Buren, a formerly all-white school, were closed and some of their students sent to Quinton Heights. Quinton Heights’ attendance boundary was extended to the north as a result.[88] By 1966, its minority student percentage was 36.4%. It was bordered by heavily minority Monroe elementary school to the northeast and otherwise by primarily white schools, including schools to the south annexed in the late 1950s.
[140] vi. Lowman Hill elementary school
[141] Lowman Hill was a white school in the pre-Brown Topeka school system. It had 17.4% black students at the end of the four-step plan in 1956. During the next decade a number of small adjustments were made to optional attendance zones around the school. Plaintiffs describe these adjustments as a process of drawing
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Lowman Hill’s boundaries to include as many black and as few white students as possible. In 1959, an all-black school, Buchanan, was closed and its students sent to Lowman Hill. By 1966, Lowman Hill was 49.6% minority. The minority percentage at the five surrounding schools ranged from .2% to 15.6%. It is noticeable on the maps in the record that in 1970 Lowman Hill’s boundaries included the only two significant areas of minority population in that part of Topeka.[91]
[142] Lowman Hill’s minority student percentage has ranged in the 40s since that time, dipping briefly into the high 30s in the early 1980s. It was not affected in any significant way by the reassignment of students due to the closing of neighboring Clay elementary school in 1975 and Polk in 1979; while its boundaries expanded somewhat, the student population it acquired was apparently of the same makeup as its existing population. Thus, the history of Lowman Hill is that the boundaries drawn in the 1950s and 1960s largely remain, as do their effects. Lowman Hill still has a significantly higher minority student percentage than its neighbors, although the disparity between them is less (in 1985, Lowman Hill was 41.9% minority while its four neighbors ranged from 7.7% to 31.5%). The school appears to have been designed and maintained as a school with a concentration of minority students. At best, it has been neglected in recent decades. See infra Part V B(2)(b)(iii).[143] vii. Predominantly white schools
[144] Eight elementary schools were at time of trial and have been during the course of this litigation primarily white schools.[92] Even in 1985, only three of these schools crossed the 10% minimum that the school district’s expert proposed, and did so only just barely.[93] The schools are in or near the western part of the district. Similarly, at the time of trial two middle schools and one high school — one-third of the secondary school system — were, and had been since they opened, primarily white schools. They too are in the western part of Topeka.
[147] We look at last away from what has been done and what should have been done to what can still be done. The feasibility of further measures was not a focus of the case, and there was little evidence on the question. The district court explicitly found that “[a]t any time, more could have been done to achieve racial balance in the schools.” Other courts that have found school systems to be unitary have specifically found that additional desegregation was impracticable.[94] Similarly, courts have
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refused to find school systems unitary where greater integration is achievable.[95]
[148] It is apparent from this record that further desegregation in Topeka is not constrained by geographic obstacles as in some other cities.[96] Furthermore, out of the panoply of desegregation tools that have been developed, Topeka at present apparently uses only one: its minimally effective majority-to-minority transfer plan. We have no reason to think that Topeka has exhausted the repertoire available for desegregating schools. For example, it has failed to try magnet schools or to aggressively encourage voluntary transfers to improve racial balance.[97] [149] Indeed, there is every reason to believe that further desegregation in Topeka is feasible. The present commitment of the school board and district administration, the already widespread distribution of minorities, and the expected continued movement of minorities into western Topeka should make the course of further desegregation relatively smooth. [150] It was suggested at trial that further desegregation is, in effect, not worth the trouble. Under questioning from counsel for the State Board of Education, plaintiffs’ expert Foster admitted that in the 1985 school year the movement of only 265 elementary students, or 3% of all elementary students, and 77 secondary students, or 1.2% of all secondary students, would have been sufficient to bring all of Topeka’s schools into plaintiffs’ 15 + / % range. Dr. Foster pointed out that this figure was arrived at by simply removing students from schools outside the 15 + / % range, without analyzing where they would go or which students would take their place. The actual movement of students would thus be more complex and burdensome than the numbers suggest. Dr. Foster also pointed out that such an approach would move schools now just beyond the 15% range to just within it, an improvement he did not find greatly desegregative as it would preserve the existence of schools differing by 30% in their minority percentage and thus still marked as minority orPage 886
white schools.[98] A similar analysis was performed with respect to faculty/staff.[99]
[151] The exercise above is illuminating in a number of respects. First, it indicates again that the desegregation plan which must be developed may not be too burdensome, a circumstance for which all can be thankful. Second, it reminds us of the dangers of focusing on numbers alone. Although numbers are usually the focus of desegregation plans, racial balance in itself is not the goal. The goal is to wipe out the effects of prior segregation. Setting target ranges is one means to that goal. It is clearly not the only one. Furthermore, as we have emphasized, schools are not racially identifiable by student and faculty assignment alone. [152] The lack of evidence or any attempt to argue that further desegregation is impracticable is perhaps the largest flaw in the school district’s case. When the law requires the maximum desegregation reasonably feasible, and evidence suggests that more can be done, unitariness must await the implementation of those further steps. When it can be said that Topeka can do no more to eradicate the effects of past segregation and segregative acts, the Topeka school system may be declared legally unitary.[153] C. Conclusion on Unitariness
[154] After reviewing the record, we have concluded that there is a current condition of segregation in Topeka. Contrary to the district court, we are convinced that this condition is causally connected to the prior de jure system of segregation. This causal connection for the most part does not stem from active promotion of segregation. Topeka has generally heeded the prohibition against this form of discrimination.
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583 F.2d 243 (6th Cir. 1978), aff’d sub nom. Dayton Board of Education v. Brinkman, 443 U.S. 526, 99 S.Ct. 2971, 61 L.Ed.2d 720 (1979).
VI. [157] TITLE VI
[158] Plaintiffs argue that the school district violated both section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and 34 C.F.R. § 100.3(b). Section 601 forbids programs and activities receiving federal funds from discriminating on the basis of race, among other factors,[100] and 34 C.F.R. § 100 contains regulations implementing Title VI. The Topeka school system receives federal funds.
(1978), that discrimination under Title VI is to be measured by the constitutional standard of the Equal Protection Clause. Id.
at 284-87, 98 S.Ct. at 2745-47. Because we have concluded that Topeka’s school system is not unitary under constitutional standards, we necessarily reverse the district court’s holding that the school district has not violated Title VI.
VII. [160] STATE DEFENDANTS
[161] The state of Kansas intervened as a defendant in Brown I to defend the constitutionality of the Kansas law permitting segregation. It was not again actively involved in the litigation of the case until May 1980, when the Governor and members of the State Board of Education were joined as defendants for the purpose of granting injunctive relief.[101] The district court granted summary judgment before trial for the Governor on both the constitutional and Title VI claims. After trial, it held that the State Board of Education was not responsible for the racial conditions in the Topeka school district. We affirm both of these rulings.
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authority to exercise general supervision of the public schools Miller, 511 P.2d at 708. Apparently, the only method used by the state to encourage segregation was the permission granted by the law struck down in Brown I for segregation below the high school level. The Kansas legislature promptly repealed this statute in its next full session after Brown I, and has since enacted civil and criminal laws against racial discrimination See Kan.Stat.Ann. §§ 21-4003, and §§ 44-1001 et. seq. This history is in contrast to the actions of other states that have been held liable for promoting segregation.[102] Moreover, the state was never held expressly liable for the actual segregation in Topeka’s schools.
[164] It is not necessary for us to decide whether requiring more of the state at this point would be consistent with the principle that a remedy may be no broader than the scope of the violation found, because plaintiffs have not shown that the State Board of Education has the power to act as they would have it act. The Kansas Constitution provides both for the State Board of Education and for locally elected school boards. The State Board is given the power of “general supervision” of the local boards. Kan. Const. art. 6, §§ 2, 5. The Kansas Supreme Court has defined this power as “something more than to advise but something less than to control.” Miller, 511 P.2d at 713. Among the powers of the State Board is accreditation of schools. Plaintiffs argue that the State Board could have withheld accreditation of segregated schools, citing evidence that the Board is empowered to withhold accreditation on this basis.[103] The evidence refers, however, to hypothetical situations such as an official policy of not hiring black teachers or complete segregation of students. This does not establish that the State Board had the power to deny accreditation under the facts of this case. In addition, exhibits in the record show that the State Board was aware that there was actual segregation in some Kansas cities, and drew up a number of proposals to provide advisory assistance to these cities in desegregating.[104] These proposals are consistent with the State Board’s argument that its role is primarily advisory in the area of desegregation. [165] Kansas statutes authorize local school boards to appoint employees to serve at the board’s pleasure, set attendance boundaries, open and close schools, and adopt all necessary rules and regulations. Kan.Stat. Ann. §§ 72-8202e, 72-8212, 72-8213. These tools are the primary means of desegregating. No evidence suggests that the State Board exercises control over these tools. Plaintiffs argue that after Brown I some agency of the state had a duty to ensure that desegregation occurred. We are not persuaded that any authority other than the Topeka school district had then or has now the power to desegregate Topeka’s schools.VIII. [166] CONCLUSION
[167] In concluding, we begin by stressing what we do not have in Topeka. We do not
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have a school system or a community actively resisting desegregation. Nor, on our record, has Topeka ever interposed the kind of obstacles to desegregation found in other cities. In recent times, the school district has won national recognition for its innovative work on its curriculum and has been honored with various awards for the excellence of its schools. In short, the Topeka school district is actively engaged in improving the education of its students.
[168] This active engagement has largely been directed at concerns other than desegregation, however. Once the four-step plan approved by the district court in the 1950s was implemented, Topeka did not until very recent times, on our record, give serious consideration to the question of whether the duty imposed by Brown II had been fulfilled, save under the urging of HEW. Although that urging led to distinct improvements, for the most part the Topeka school district has exercised a form of benign neglect. The duty imposed by the Constitution, and articulated in numerous cases by the highest court in this land, requires more. [169] We reverse the finding of the district court that the Topeka school system is legally unitary. We remand the case to the district court for the formation of an appropriate remedy.The district court echoed Mr. Lamson’s view about the nature of segregation: “[R]acially conscious student assignment with the goal of racial balance has been approved as a remedy in desegregation litigation. This is because school segregation has an inertia which often cannot be countered by a purely neutral force.” Brown v. Board of Educ., 671 F. Supp. 1290, 1297 (D.Kan. 1987) (citation omitted) (emphasis added).
“No person in the United States shall, on the ground of race, color, or national origin be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
42 U.S.C. § 2000d (1982). The Topeka school district received federal funds through the Kansas State Department of Education.
(1972) (complete segregation); Swann, 402 U.S. at 24, 91 S.Ct. at 1280 (no challenge to finding of prior dual system); Green v. County School Bd. of Educ., 391 U.S. 430, 435, 88 S.Ct. 1689, 1692, 20 L.Ed.2d 716 (1968) (complete racial identification of schools). The issue was potentially more significant in recent circuit cases in which a school district had been under court order for some time and many of the vestiges of prior de jure
segregation had been eliminated. Even in these more recent cases, however, no clear standard has been articulated. See Morgan, 831 F.2d at 319-21 (considering number of one-race schools as part of unitariness determination); Price v. Denison Indep. School Dist., 694 F.2d 334, 347-68 (5th Cir. 1982) (discussing need to consider various factors in determining whether constitutionally violative condition of segregation exists).
one-race schools, rather than de jure, the system is not unconstitutional.
n. 2, 97 n. 10 (5th Cir. 1983) (90% standard for one-race schools; 75% standard for predominantly one-race schools). Swann did not define the term “one-race school,” presumably because two-thirds of Charlotte-Mecklenburg’s black students attended schools that were 99 + % black. See Swann, 402 U.S. at 7, 91 S.Ct. at 1271.
(5th Cir. 1986) (school 97.88% Mexican-American not a vestige of discrimination in district 88% Mexican-American); Ross, 699 F.2d at 220, 226 (affirming finding of unitariness for district 80% minority although 57 out of 226 schools were 90 + % one-race); Price, 694 F.2d at 336, 339-40 (schools not necessarily racially identifiable in district 88% white although 7 out of 8 elementary schools 90 + % white); Calhoun, 522 F.2d at 718-19 (85% black district unitary although more than 60% of schools all or substantially all black).
n. 2; Ross, 699 F.2d at 226; Price, 694 F.2d at 364; Stout v. Jefferson County Board of Education, 537 F.2d 800 at 802 (5th Cir. 1976).
presumption.” Dissent at 904, 919-20, 920-21. The Keyes
presumption states “that a finding of intentional segregative school board actions in a meaningful portion of a school system . . . creates a presumption that other segregated schooling within the system is not adventitious.” Keyes, 413 U.S. at 208, 93 S.Ct. at 2697. This is a presumption that is used to established initial de jure segregation in a case where no statutorily mandated segregation exists. The presumption referenced in the instant case applies only after either statutorily-mandated or policy-based de jure segregation has been established. See id. at 211 n. 17, 93 S.Ct. at 2699 n. 17 (Keyes court making this distinction); see also Tasby v. Wright, 713 F.2d 90, 94
(5th Cir. 1983) (district court relied on wrong presumption). The dissent’s misunderstanding of this difference has an obvious and critical impact on its assessment of this record. See dissent at 920-21 (“It is clear that to sustain the presumption, the plaintiffs were required to prove `a current condition of segregation from intentional state action'”); id. at 951 (“The court simply has jumped the gun in invoking the Keyes
presumption to arrive at the preliminary and critical conclusion that there is a current condition of segregation in Topeka.”) see also id. at 951-52 (dire predictions if Keyes presumption is required at the outset). The presumption required here is not the Keyes presumption but the presumption placed on all school districts previously found liable for operating a de jure
system.
(9th Cir. 1984) (en banc) (castigating school district for consistently choosing more segregative alternatives), cert. denied, 471 U.S. 1065, 105 S.Ct. 2140, 85 L.Ed.2d 497 (1985).
(10th Cir. 1974). We remanded to the district court for such further proceedings as might be necessary to bring the school district in conformity with the Keyes mandate. Our original decision overturning the district court’s finding of no constitutional violation remains the law of this circuit.
“Although, on its face, the construction of schools, particularly on the west side of the district, appears to have promoted racial separation, the court does not believe that the district’s school construction policy was intended to maintain or promote segregation.”
671 F. Supp. at 1300 (emphasis added).
neighborhood school plan did not change segregated nature of the system. “Those pre-Brown white schools located in the black neighborhoods . . . turned virtually all black immediately after the plan was implemented.”).
n. 27.
Plaintiffs commissioned a public opinion survey in order to determine whether Topekans perceive some schools as black/minority and others as white, whether they perceive some schools as providing an inferior education, and whether there is a correspondence between the two. While the results of the survey provide some support for plaintiffs’ contentions, the survey was extensively criticized as unreliable by several of the school district’s experts. The district court discussed additional flaws and concluded that the survey was not strong evidence of the existence of segregation. 671 F. Supp. at 1305-06. We see no error in that conclusion. We therefore disregard the survey results.
the Court accepted the district-wide average of 71% white/29% black, with no deviation, as an acceptable starting point for the district court in shaping a remedy. 402 U.S. at 24-25, 91 S.Ct. at 1280-81. Where, as here, the school district has been held liable for imposing an unconstitutional segregated school system, we believe it perfectly reasonable to use a ± 15% deviation in assessing whether the school system ever achieved unitariness.
has relatively good rates on these indices, it is still necessary to look at the racial statistics at individual schools to get a true picture.
When the schools in these tables are looked at in notes 57 and 58 supra, one sees that all but one of the racially identifiable minority elementary and junior high schools have minority faculty/staff percentages ranging from 17.3% to 33.3%. Six of the schools identified as racially identifiable white have minority faculty/staff percentages ranging from 0.0% to 5.6%.
n. 11 (“[F]aculty segregation disappeared completely only after efforts of the Department of Health, Education, and Welfare.”) Columbus, 443 U.S. at 461 n. 8, 99 S.Ct. at 2948 n. 8 (practices of assigning black teachers to schools with substantial black populations and creating optional attendance zones to permit white students to avoid predominantly black schools ceased respectively only after Ohio Civil Rights Commission complaint and the instant lawsuit); Tasby, 713 F.2d at 93 (“`[T]he District has never voluntarily moved to desegregate the Dallas school system; every step toward desegregation has been due to court action.'”).
(5th Cir. 1976) (mountain range and dangerous roads).
(5th Cir. 1976) (mountain range and dangerous roads).
“THE COURT: . . . .
“Let me ask you a layman’s question here. Say we have a school that has a 55 percent minority or 60 percent minority, and we want to change that situation, and try to get it down below 50 percent minority. Has there been any experience in anything that you have run into where they have gone into what you might call a voluntary busing program where you would ask the people in that community voluntarily to come forward, and allow their children to go to another area to try to redress the racial — have you had any experience on that, or do you know of any experiences on that, or is that fanciful to think that that might happen?
THE WITNESS: Not at all. In fact that can be done. It can be done without the mandatory assignment, and has been done in many school districts, in fact with schools a lot more imbalanced than 55 percent minority.
What you try to do in those cases is two-fold. One, you have an M to M program usually with transportation provided. You really encourage and do a lot of publicity and a lot of encouragement of the minority transfers out of that school, so that helps by reducing the minority population because they will frequently — minority students will frequently, given the incentives, transfer out of that school to a predominantly white school in a different part of the district.
Other [sic] thing you do in a school like that generally that is successful is you put a special program in a magnet, call them a magnet program. White parents or white students will generally not transfer out of a predominantly white area neighborhood school into a school that is predominantly minority without an academic incentive, usually because they unlike some of the minority parents they feel their school is doing a fine job. So you will need to offer an attractive program. We have learned that computer science magnets, business, health professions. Depending upon the grade level, there are programs that are very attractive to white parents, and will actually induce them to transfer into that school.
The combination of those two can frequently bring a school into the composition that you want.“
Rec., vol. XII, at 2638-39 (emphasis added).
“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
42 U.S.C. § 2000d (1982).
(listing California cases detailing responsibility of state organs to aid in desegregation).
Defendants
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also contended that recent school boards were committed to pursuing racial balance in student and faculty/staff assignment, and equal educational opportunity. Finally, defendants relied upon the implementation of two desegregation plans after Brown v. Board of Educ. (Brown I), 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and explained other steps taken to achieve and maintain a unitary system. The district court found in favor of the defendants on all issues and declared the system unitary Brown v. Board of Educ., 671 F. Supp. 1290 (D.Kan. 1987). On appeal, plaintiffs challenge the district court’s judgment concerning student and faculty/staff assignment.
[173] If appellate courts were empowered to make findings of fact, perchance the approach of this court on the issues of student and faculty/staff assignment could be justified. But for reasons which the Supreme Court has made clear, we must accept the factual findings of the district court unless they are clearly erroneous. Fed.R.Civ.P. 52(a); Anderson v. City of Bessemer City, 470 U.S. 564, 573-76, 105 S.Ct. 1504, 1511-13, 84 L.Ed.2d 518 (1985); see also Alexander v. Youngstown Bd. of Educ., 675 F.2d 787, 792-93 (6th Cir. 1982). Although this court acknowledges that the district court’s finding of unitariness must be upheld unless clearly erroneous, Court’s Opinion at 859, the court has failed to give effect to this principle. Instead, this court has duplicated “the role of the district court” and has impermissibly engaged in “an exercise in appellate factfinding.” See Jenkins v. Missouri, 807 F.2d 657, 667 (8th Cir. 1986) (en banc). This is apparent throughout the court’s opinion, but is especially salient in the court’s characterization of what really occurred in Topeka during each decade subsequent to Brown I, a characterization which totally ignores the district court’s findings and forgets that we do not try cases at the court of appeals. See Court’s Opinion at 874-77. The same evidence that the district court found wanting this court accepts. This court is “engaging in an original evaluation of the voluminous and ofttimes contradictory record seeking an ultimate conclusion more satisfactory than that reached by the district court.” Jenkins, 807 F.2d at 668. [174] The court claims that the district court erred because it misunderstood the burden of proof in this desegregation case. Court’s Opinion at 854, 866-67. If that is true, why does the court not remand the case to the district court for appropriate findings in accordance with the correct presumption and burden-shifting principles, given that this is very much a record case? See infra note 6; Vaughns v. Board of Educ., 758 F.2d 983, 992 (4th Cir. 1985) (court remanded for new findings in light of correct legal principles). Instead, the court makes its own factual findings and remands the case for an appropriate remedy. [175] Moreover, I do not agree with this court that the district court “failed `to apply the appropriate presumption and burden-shifting principles of law.'” Court’s Opinion at 867 (quoting Brinkman v. Gilligan, 583 F.2d 243, 251 (6th Cir. 1978), aff’d, Dayton Board of Educ. v. Brinkman (Dayton II), 443 U.S. 526, 99 S.Ct. 2971, 61 L.Ed.2d 720 (1979)). This court compares the district court’s action with that of the errant district court in Dayton II. The comparison misses the mark primarily because, as this court points out, Dayton II,like most of “[t]he Supreme Court desegregation cases[,] involved school systems in which the degree of segregation was sufficiently great that the parties did not seriously dispute on appeal that the plaintiffs had satisfied their burden on” [“the existence of a current condition of segregation.”]. Court’s Opinion at 859-60 n. 17, 859-60. While the “Dayton public schools [were]
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`highly segregated by race'[.]”[4] Court’s Opinion at 859 n. 17 (quoting Dayton II, 443 U.S. at 529, 99 S.Ct. at 2974), this is not so in Topeka. Here, there exists a genuine issue of fact as to whether there is even a current condition of segregation, particularly in the absence of any one-race minority or virtually one-race minority schools in this district. To be sure, there are eight 90% + white schools (ranging from 6.23% to 9.43% minority); however, those schools have steadily increased in minority enrollment over the years, and this is a system in which 31 out of 34 schools are majority white in student assignment. See infra note 18. Of the three schools that are majority-minority in student assignment, the greatest concentration is 61.86% minority. Id. This court’s overinclusive approach to racial identifiability leads it to an incorrect finding that there is a current condition of segregation in Topeka.
[176] The court begins by saying that, in a former de jure system, a school is racially identifiable and part of a current condition of segregation if it deviates, plus or minus (±) 15% or 20% or some other arbitrary amount, from a system-wide average of minority composition. See Court’s Opinion at 869-70, 872-73 n. 59, 873; but see Price v. Denison Indep. School Dist., 694 F.2d 334, 360-64 (5th Cir. 1982) (statistical racial identifiability not necessarily indicative of liability). Numbers reflecting the racial composition of student and faculty/staff assignment within a school system are absolutely critical in both the liability and the remedial phase of a school desegregation case. However, statistical measures of racial identifiability are measures of racial balance, a valid sociological objective, but not a constitutional command with respect to student assignment. Nevertheless, this court determines that once a plaintiff has shown statistical racial identifiability in a former de juresystem, the plaintiff has established a current condition of segregation. Court’s Opinion at 859-60, 869-70. [177] If a school is not racially identifiable as to student assignment by statistical measures, that certainly does not suggest an absence of segregation to this court. Rather one must look to a “broadly defined,” Court’s Opinion at 859-60, concept of racial identifiability which considers “demography, geography and the individual history of particular schools and areas of the city,” in an effort to find liability. Id. at 861. Although the court acknowledges that one-race schools may evolve from “modern urban demography and geography,” id. at 860 n. 18, and that “the mere existence of racially identifiable schools does not violate the Constitution,” id. at 886, it completely fails to incorporate these observations in its analysis of this system. Nor does it consider other statistical measures relied upon by the district court which support a finding of no current condition of segregation and compliance with the affirmative duty to dismantle the dual system. See id. at 869-72, 876 n. 71. What the court has done is to apply an absolute presumption against the Topeka schools from the outset because of de jure
status in 1954. Even if the presumption applies, the court has given no weight to the substantial evidence concerning de facto
influences on racial composition in those schools. Although the court ratifies its conclusion concerning a current condition of segregation with descriptive references to geography, residential population and history, there is no attempt to consider causation in light of the substantial demographic testimony offered by defendants. Id. at 873, 876-77. [178] The district court implicitly recognized, Brown, 671 F. Supp. at 1295, “that once a court has found an unlawful dual school system,” School Bd. v. Baliles, 829 F.2d 1308, 1311 (4th Cir. 1987), the plaintiffs are “`entitled to the presumption that current disparities are causally related to prior segregation,
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and the burden of proving otherwise rests on the defendants.'”See Court’s Opinion at 863 (quoting Baliles, 829 F.2d at 1311); see also Dayton II, 443 U.S. at 537, 99 S.Ct. at 2979
(1979); Keyes v. School Dist. No. 1, 413 U.S. 189, 210-11, 93 S.Ct. 2686, 2698-99, 37 L.Ed.2d 548 (1973); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 25-26, 91 S.Ct. 1267, 1280-81, 28 L.Ed.2d 554 (1971) (discussing remedy once a violation is established). If the system has achieved unitariness, the presumption ends. Baliles, 829 F.2d at 1311 Riddick v. School Bd., 784 F.2d 521, 543 (4th Cir. 1986).
(“Board has a `heavy burden’ of showing that actions that increased or continued the effects of the dual system serve important and legitimate ends”). [181] The district court correctly cited Keyes and Swann in its discussion concerning the burden of proof and noted that the factual justification in this case for the legal presumption was doubtful.[5] Brown, 671 F. Supp. at 1295, 1295 n. 4 5. I take this to mean that the plaintiffs simply had not proven a current condition of segregation (a constitutional violation) in the Topeka schools which would warrant sustaining the presumption. But the district court went further when it focused on the defendants and held that, in the alternative and regardless of any presumptions in favor of the plaintiffs, the defendants had proven the existence of a unitary system. Id.
Merely because the district court properly discussed an absence of discriminatory intent does not negate the fact that in this record[6] there is evidence tending to show that any past segregative acts of this school district are not responsible for schools currently which do not approach the system-wide minority average. See infra pt. VII, p. 935 (analyzing schools which court claims are racially identifiable and segregated). Indeed, this court at various points acknowledges an absence of evidence of segregative intent by current school officials. Court’s Opinion at 868 (“we agree with the district court’s findings that the current school administration
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is not presently acting with discriminatory intent”), see also id. at 880, 886; but see id. at 872 (concerning faculty/staff assignment in 1985-86, “it is difficult to posit a [racially] neutral explanation”), 879 id. at 883 (“It is thus clear that Quinton Heights’ current boundaries are the result of continued manipulation by the school district.”). The district court also considered circumstantial evidence of past segregative intent manifesting itself in the current system, concerning the prima facie case and beyond. Of course, the district court had much quantitative and qualitative evidence to evaluate. Having performed its required task, it found that “the district’s student and staff assignment criteria do not have the effect of discriminating against students because of their race.” Brown, 671 F. Supp. at 1310 (denying relief based on Title VI regulation) (emphasis added). Because the record supports the district court’s determination that there is not unlawful segregation in Topeka and that the system is unitary, albeit on conflicting evidence, I respectfully dissent.
[182] In its opinion, the court dismisses my dissent as a product of misconstruing the principles of school desegregation law. Court’s Opinion at 862-63, 867 n. 47, 868 n. 49, 869 n. 51. Apparently, the court views the affirmative duty to eliminate segregation and its vestiges as completely independent from, if not inconsistent with, the intent inquiry. To be sure, those statutory dual systems operating at the time of Brown I automatically assumed an affirmative duty to eliminate not only the dual system, but also the effects of that dual system on present school operations. Keyes, 413 U.S. at 200, 93 S.Ct. at 2693. However, the initial affirmative duty arises from the presence of intentional segregation whether once commanded by statute or practice. [183] Moreover, the intent inquiry is inclusive of whether a school board has acted affirmatively, not merely neutrally, to eliminate a dual system existing in 1954. A school board’s proven failure to heed its affirmative duty and eliminate a dual system and its vestiges, whether that failure be by inaction or by conscious decision, is indicative of segregative intent and compounds the harm of an unconstitutional dual system. See Columbus, 443 U.S. at 461, 99 S.Ct. at 2948 (“Whatever the Board’s current purpose with respect to racially separate education might be, it knowingly continued its failure to eliminate the consequences of its past intentionally segregative policies.”); see also Green v. County School Bd., 391 U.S. 430, 437-38, 88 S.Ct. 1689, 1693-94, 20 L.Ed.2d 716 (1968). In deciding whether a school system is unitary, the ultimate inquiry must be whether past or present segregative intent has been eliminated from the present school operations. [184] Thus, a current condition of purposeful separation may arise either from a failure to eliminate 1954 de jure segregation and its effects or by subsequent actions which are segregative in their own right. Stated another way, plaintiffs are entitled to a system-wide desegregation order upon a finding that there is current racial separation which is the result of segregative intent, past or current. Plaintiffs are not entitled to a system-wide desegregation order based upon proven de factoracial separation not attributable to the actions of the school board. Keyes, 413 U.S. at 208, 93 S.Ct. at 2697 (“We emphasize that the differentiating factor between de jure segregation and so-called de facto segregation to which we referred in Swann
is purpose or intent to segregate.”) (emphasis in original). Thus, contrary to this court’s reading of my dissent, I agree that school board action which has the effect of failing to disestablish the dual system violates the school board’s affirmative duty. See Court’s Opinion at 862 (quoting Pitts v. Freeman, 755 F.2d 1423, 1427 (11th Cir. 1985)); Columbus, 443 U.S. at 449, 99 S.Ct. at 2942. [185] I must reject however, this court’s contention that “[t]his is not a liability case in which plaintiffs must prove that the school board has committed unconstitutional acts; that was established in 1954.” Court’s Opinion at 862 (emphasis omitted). While this is not a case of initial liability, id. at 868, it is not a case like Swann, see Court’s
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Opinion at 862, in which all parties agreed that the 1969 Charlotte-Mecklenburg school system was not unitary given the Supreme Court’s 1968 Green decision, announced three years after the first desegregation plan implemented by that district in 1965. Swann, 402 U.S. at 7, 91 S.Ct. at 1271. In Swann,
the issue was whether the district court was correct in selecting among alternative desegregation plans put forth by the parties Id. at 11, 91 S.Ct. at 1273. Contrary to this court’s assertion, Court’s Opinion at 862, 868 n. 49, ours is not now a remedy case. Upon the reopening of this case in 1979, some 24 years after the first court-approved desegregation plain, the district court’s task was to determine whether liability for the prior de jure system remained. Unlike Swann, the parties in our case hotly contested this issue.
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I.
[188] This action began when the original plaintiffs challenged Topeka’s maintenance of a segregated system of schools for grades kindergarten through six (K-6). Brown v. Board of Educ., 98 F. Supp. 797 (D.Kan. 1951), rev’d, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). At the time, Topeka operated 22 elementary schools, 18 for white children and 4 for black children. Id.
Many black children were bused a considerable distance to the 4 black schools. Id. at 798. The challenge involved both the contention that separate schools were inherently unequal and the contention that the physical facilities, curricula, faculty and student services of the black schools were inferior. Id. at 797-98. Circuit Judge Huxman, writing for a three-judge district court, adhered to precedent, Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), and held that separate but equal facilities were constitutional. Brown, 98 F. Supp. at 798-99; see generally In Memoriam, 474 F.2d preface at 13-14 (1973) (discussing judge’s difficult decision). The district court entered as a finding of fact that the “physical facilities, the curricula, the courses of study, qualification of and quality of teachers, as well as other educational facilities in the two sets of schools are comparable.” Brown, 98 F. Supp. at 798. The judgment was appealed to the Supreme Court, with initial arguments during the 1952 Term.
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that full implementation of Brown I might “require solution of varied local problems” by school authorities, the Court remanded this case to the three-judge district court for consideration of whether the actions of school authorities constituted a good faith implementation of Brown I. Id. School authorities were to make a “prompt and reasonable start toward full compliance” wit Brown I. Id. at 300, 75 S.Ct. at 756.
[193] Id. at 300-01, 75 S.Ct. at 756-57. The district courts were to be guided by principles of equity and to retain jurisdiction during the transition period. Id. In June 1955, the Supreme Court mandate ordered the district court to take such actions “as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.” Id. at 301, 75 S.Ct. at 757. [194] On remand, the district court held a hearing on the formulation of a decree and judgment. In October 1955, the panel approved the plan already adopted and partially implemented by the Topeka board “as a good faith beginning to bring about complete desegregation.” Brown v. Board of Educ., 139 F. Supp. 468, 470Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a non-racial basis. . . . They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system.
(D.Kan. 1955) (per curiam). The court characterized the plan as follows:
[195] Id. at 469. The court noted that in several respects, which were minor and not discussed, the plan did not comply fully with the Supreme Court mandate. Id. One serious objection to the plan was that part which permitted kindergarten children to attend the school which they would have attended had they started school one year previously. But because that part was temporary and not part of the permanent plan, it did not defeat a finding of good faith. [196] At the hearing, the plaintiffs objected to certain schools, such as Buchanan, remaining all black. The district court rejected this as a defect in the plan, stating:The central principle of the plan is that hereafter, except in exceptional circumstances, school children irrespective of race or color shall be required to attend the school in the district in which they reside and that color or race is no element of exceptional circumstances warranting a deviation from this basic principle.
[197] Id. at 470. In 1973, the Supreme Court indicated that this limited interpretation of Brown was rejected in 1968 by its decision in Green, 391 U.S. at 437-38, 88 S.Ct. at 1693-94 Keyes, 413 U.S. at 200-01 n. 11, 93 S.Ct. at 2693-94 n. 11. Meanwhile, the district court retained jurisdiction of this case for the purpose of entering a final decree pending full compliance with the Supreme Court’s mandate to desegregate. The court’s order approving the plan was not appealed. [198] In December 1956, the Topeka board considered the fourth step of its plan to complyDesegregation does not mean that there must be intermingling of the races in all school districts. It means only that they may not be prevented from intermingling or going to school because of race or color.
If it is a fact, as we understand it is, with respect to Buchanan School that the district is inhabited entirely by colored students, no violation of any constitutional right results because they are compelled to attend the school in the district in which they live.
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with the Supreme Court’s mandate in Brown II as ordered by the district court. Rec. ex. vol. IV at 120. This final step of the plan was to become effective in September 1956, and eliminated the kindergarten option provision criticized by the district court. Rec. ex. vol. II at 66. The plan also required all elementary students moving into districts, not designated as optional districts between two or more elementary schools, to attend the elementary school in the requisite district, subject only to traditional exceptions. Id. at 66. Two board members opposed the plan’s optional features as prolonging the time before complete integration. Id. at 67. Concern was expressed about the future of the teachers at the de jure black elementary schools. Id. Notwithstanding, the superintendent, under questioning from the board, indicated that no additional steps were contemplated and that the adoption of the plan brought Topeka “into full compliance with the law.” Id..
[199] The fourth step of the plan was opposed by the president of the NAACP, Mr. Burnette. Mr. Burnette told the board that the NAACP only took legal action in this case as a “last resort.” Rec. ex. vol. IV at 120. He opposed the plan because “it would take seven long years to terminate racial segregation” and no steps had been taken to integrate black teachers. Id. at 120-21. The fourth step of the plan was approved in January 1956. Id. at 121. The plan had been implemented fully as of the 1960-61 school year, and by 1961-62, all elementary students, who had been permitted to continue at the school which they attended prior to implementation of step four of the plan, had completed their elementary education. [200] Two observations should be made at this point. First, the school board hardly can be faulted for implementing its plan to desegregate the elementary schools. In its revised opinion, the court has downgraded the school board’s initial desegregation efforts from “a remarkably enlightened beginning”, in the mid-1950’s,” see Brown v. Board of Educ., No. 87-1668, slip op. at 42 (filed Jul. 2, 1989 withdrawn Jul. 19, 1989), to “a `good faith’ beginning”, Court’s Opinion at 874 (quoting Brown, 139 F. Supp. at 470). This court then characterizes “[t]he mid-50s to mid-60s,” as “no doubt” segregative under modern authority. Court’s Opinion at 874-75. The board had the approval of the district court and federal authority well into the 1970’s, including that of this circuit, which echoed the district court’s conclusion that Brown I and Brown II, while prohibiting segregation, did not require concern with integrative racial balancing in neighborhood schools.[7] See Keyes v. School Dist. No. 1,Page 898
445 F.2d 990, 1005 (10th Cir. 1971) (“We never construed Brown to prohibit racially imbalanced schools provided they are established and maintained on racially neutral criteria, and neither have other circuits considering the issue.”), modified, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973); Board of Educ. v. Dowell, 375 F.2d 158, 166 (10th Cir.) (“It is still the rule in this Circuit and elsewhere that neighborhood schools attendance policies, when impartially maintained and administered, do not violate any fundamental Constitutional principles or deprive certain classes of individuals of their Constitutional rights.”), cert. denied, 387 U.S. 931, 87 S.Ct. 2054, 18 L.Ed.2d 993 (1967); Downs v. Board of Educ.,
336 F.2d 988, 995-96, 998 (10th Cir. 1964) (neighborhood schools which may result in racial imbalance not actionable; no duty to integrate), cert. denied, 380 U.S. 914, 85 S.Ct. 898, 13 L.Ed.2d 800 (1965); Bell v. School City of Gary, 324 F.2d 209, 213 (7th Cir. 1963) (neighborhood school plan drawn with no intent or purpose to segregate is constitutional even if effect is that some schools will not be racially balanced), cert. denied, 377 U.S. 924, 84 S.Ct. 1223, 12 L.Ed.2d 216 (1964). Second, courts do not speak unless spoken to and cannot decide what is not before them. Here, the school board made hundreds of decisions since 1952 that the plaintiffs contend reflect segregative intent and effect, yet not until 1979 was the court asked to intervene. While this in no way would excuse noncompliance with the constitutional command to desegregate the schools, it does furnish a backdrop against which to understand the liability focus of this case.
II.
[201] The amplification of Brown I and Brown II began with the Court’s decision in Green, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). The New Kent County, Virginia system was considerably smaller than the Topeka system, with an enrollment of 1300 students in two schools, approximately 57% black and 43% white. Id. at 432, 88 S.Ct. at 1691. The court considered a plan which allowed a student to choose between schools which were essentially one-race schools with respect to “faculty, staff, transportation, extracurricular activities and facilities.” Id.
at 435, 88 S.Ct. at 1693. In every way, the schools were a product of de jure segregation. Although students had a choice between schools, attendance patterns largely reflected the de jure system. Id. at 441, 88 S.Ct. at 1696. Eighty-five percent of the black children attended an all-black school. Id. at 441, 88 S.Ct. at 1696. The court made it clear that school boards operating state-compelled dual school systems at the time o Brown II “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.” Id. at 437-38, 88 S.Ct. at 1693-94.
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increased significantly. Rec. ex. vol. I at 12. And the Topeka school board continued with its responsibility to eliminate de jure segregation and its vestiges.
[203] In the 1955-56 school year, the board operated 23 elementary schools,[9] 7 junior high schools,[10] and 1 high school Brown, 671 F. Supp. at 1293; rec. ex. vol. IV at 38;Page 900
supp. vol. XI at 186, 225. At the time of Brown I, the Court recognized that Topeka did not operate de jure secondary schools. Brown I, 347 U.S. at 486 n. 1, 74 S.Ct. at 687 n. 1. In the 1955-56 school year, black elementary students attended 18 out of 23 elementary schools. Brown, 671 F. Supp. at 1293. At the elementary school level, the total black student population was 10.4% and three schools were 90 + % black (Buchanan, Monroe and Washington). See supra note 9. 45.6% of the black elementary students attended these three schools. Id. Thirteen elementary schools were 90 + % white. Id. At the junior high school level, the total black student population was estimated to be 11.2%. See supra note 10. There were no 90 + % black junior high schools, but 3 schools were 90 + % white (Holliday, Roosevelt Capper).
[204] In the 1968-69 school year, the school board operated 34 elementary schools,[11] 11 junior high schools[12] and 3 highPage 901
schools,[13] having added Highland Park High School in 1959 through annexation and Topeka West High School in 1961 through construction. Rec. ex. vol. IV at 64; supp. vol. XI at 225. The system had 25, 737 students. Rec. ex. vol. IV at 65; see supra
note 8. Three of the four initially de jure black elementary schools had been closed by the 1968-69 school year. McKinley was closed in 1955, Buchanan in 1959, and Washington in 1962 Brown, 671 F. Supp. at 1293. Monroe, the only remaining de jure black elementary school (Monroe) had an enrollment which was 25% white. Id. At the elementary school level, the total minority[14] student population was 17.39% minority (12.40% black), and one school (Parkdale) was 90+% minority and three others were 50+% minority (Belvoir, Lafayette, Monroe). See supra note 11. Eighteen elementary schools were 90+% white Id. At the junior high school level, the total minority student population was 16.50% (11.81% black). See supra note 12. There were no 90+% black junior high schools, but five junior high schools were 90+% white (Capper, Eisenhower, Jardine, Landon
Roosevelt). Id. There were no 90+% black high schools, but one high school was 90+% white (Topeka West). See supra note 13. Minority students attended every school in the district, but in widely varying numbers. See supra notes 11-13.
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the Topeka system, with an enrollment of more than 84,000 and 107 schools. Id. at 6, 91 S.Ct. at 1271. The racial composition was 71% white and 29% black. To support liability, the Supreme Court mentioned that two-thirds of 21,000 black students in Charlotte city schools attended 21 schools which were 99+% black. Id. at 7, 91 S.Ct. at 1271. The district court’s objective was to have the schools approximate the racial composition of the system, 71% white and 29% black. Id. at 9-10 n. 4, 91 S.Ct. at 1272-73 n. 4. To that end, the district court endorsed a plan that called for busing to achieve schools 9% to 38% black. Id. at 9, 91 S.Ct. at 1273.
[206] As a remedial phase case, Swann is important because it speaks “to what extent racial balance or racial quotas may be used as an implement in a remedial order to correct a previously segregated system.” Id. at 22, 91 S.Ct. at 1279. The school board argued that the district court erred by seeking racial balance in the 71%-29% range for each school. Id. at 23, 91 S.Ct. at 1279. The Court recognized that the district court’s “use . . . of mathematical ratios was no more than a starting point in the process of shaping a remedy, rather than an inflexible requirement,” and was within the district court’s equitable discretion. Id. at 25, 91 S.Ct. at 1280. [207] The Court spoke to whether there is any constitutional requirement of racial balance.[208] Id. at 24, 91 S.Ct. at 1280. This is of paramount importance for this case because, despite the court’s citation of this principle, see Court’s Opinion at 861, 886, the court has not allowed it to operate. Rather, even after the Topeka board has implemented fully two desegregation plans and the system “improved dramatically in the last ten years as far as desegregation is concerned,” Court’s Opinion at 877, the liability focus of the plaintiffs and the court is unmistakably on the principle that more could have been done to achieve greater racial balance, that is more schools could approach the system-wide minority average in student assignment. See Court’s Opinion at 876, 877-78, 882-84 (analyzing schools which plaintiffs suggest have “clear racial identities,” id. at 882, and essentially criticizing school board decisions which resulted in these schools not approximating the system-wide average of minority students). However, “the fact that a school board’s desegregation plan leaves some disparity in racial balance among various schools in the system does not alone make that plan unacceptable.” Wright v. Council of the City of Emporia, 407 U.S. 451, 464, 92 S.Ct. 2196, 2204, 33 L.Ed.2d 51 (1972) (footnote omitted). [209] Equally important for this case is the Supreme Court’s discussion in Swann of “whether every all-Negro and all-white school must be eliminated as an indispensable part of a remedial process of desegregation.” Swann, 402 U.S. at 22, 91 S.Ct. at 1279. In a section entitled “One-Race Schools,” the Court applied a common-sense approach to the problem of racial concentration in various parts of a metropolitan area.If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing, that approach would be disapproved and we would be obliged to reverse. The constitutional command to desegregate the schools does not mean that every school in the community must always reflect the racial composition of the school system as a whole.
[210] Id. at 25-26, 91 S.Ct. at 1280-81. When there has been intentional segregation in the past, there is a presumption against schools that are one-race minority or virtually one-race minority, and the school board has the burden of showing assignment is genuinely nondiscriminatory. Id. at 26, 91 S.Ct. at 1281; Price, 694 F.2d at 353-56. The district court recognized this presumption, although it noted that this case does not “fit the Swann presumption easily.” Brown, 671 F. Supp. at 1295. Even though the proportion of minority students in this system is smaller than in many cases and there are noThe record in this case reveals the familiar phenomenon that in metropolitan areas minority groups are often found concentrated in one part of the city. In some circumstances certain schools may remain all or largely of one race until new schools can be provided or neighborhood patterns change. Schools all or predominantly of one race in a district of mixed population will require close scrutiny to determine that school assignments are not part of state-enforced segregation.
In light of the above, it should be clear that the existence of some small number of one-race, or virtually one-race, schools within a district is not in and of itself thePage 903
mark of a system that still practices segregation by law. The district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation and will thus necessarily be concerned with the elimination of one-race schools.
one-race minority or virtually one-race minority schools, the literal Swann presumption could be applied to the 90+% white schools. See Price 694 F.2d at 364-65. [211] This court acknowledges the critical importance of a finding of “one-race” schools to support a current condition of segregation and liability overall. Court’s Opinion at 860-61. The court correctly notes that the significance of “one-race” white schools in this case is limited because of Topeka’s large majority white student population (74.05% in 1985). Id. at 869; see also Price, 694 F.2d at 364-65 (recognizing major purpose behind school desegregation cases is to secure rights of minority groups; literal compliance with Swann may not be required when system is heavily white and all schools are majority white). But the court departs from Swann when it imposes liability on the basis of student assignment in the absence of “one-race” minority schools or a district court finding of current intentional segregation. This court imposes liability for a lack of racial balance, while virtually ignoring the demographic testimony of defendants’ expert (and other evidence adduced by the defendants), which was credited by the district court. See
Court’s Opinion at 869 n. 52 (“In a school system with a 26% minority student population, we think the number of schools in Topeka that approach or are over the 50% minority mark constitut persuasive evidence that the school system has not met its duty to desegregate.”) (emphasis added). [212] In 1973, the Supreme Court added an important presumption which expanded the consequences of a current condition of intentional segregation in any part of a school system. Keyes, 413 U.S. at 208, 93 S.Ct. at 2697. The district court in that case had found contemporary and intentional segregation, including student and teacher assignment, with respect to schools in the Park Hill area in Denver, which were attended by almost 38% of the black student population. Id. at 199, 93 S.Ct. at 2692. Blacks comprised 14% of the students in the system, hispanics comprised 20%; for a system minority population of 34%. Id. at 195, 93 S.Ct. at 2690. Three of five elementary schools in the Park Hill area were 89+% minority; one junior high was 76+% minority and the other was 96+% minority. Id. at 199 n. 10, 93 S.Ct. at 2692 n. 10. Near Park Hill were 22 core city schools, all 22 were 70+% minority and 11 were 90+% black. The district court and the court of appeals essentially required independent proof that the core city schools were a product of official segregation. Id. at 205, 93 S.Ct. at 2695. The Court stated:
[213] Id. at 208, 93 S.Ct. at 2697. The Court emphasized that purpose or intent to segregate is what differentiates actionable de jure segregation from de facto segregation. Id. Thus, plaintiffs would be entitled[W]e hold that a finding of intentionally segregative school board actions in a meaningful portion of a school system, as in this case, creates a presumption that other segregated schooling within the system is not adventitious. It establishes, in other words, a prima facie case of unlawful segregative design on the part of school authorities, and shifts to those authorities the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions.
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to the Keyes presumption upon a showing of purposeful segregation in a meaningful part of the school system. Id. at 208-09, 93 S.Ct. at 2697-98. As noted, once the presumption is invoked, the defendant school board must come forward with evidence showing that “the existence of subsequent or other segregated schooling within the same system . . . is not also the result of intentionally segregative acts.” Keyes, 413 U.S. at 210, 93 S.Ct. at 2698. The school board must either disprove segregative intent or show “that its past segregative acts did not create or contribute to the current segregated condition.”Id. at 211, 93 S.Ct. at 2699.
[214] The framework in Keyes formed the basis for the Court’s decisions in Columbus and Dayton II. These cases held that if a school board was operating a dual school system in 1954, even absent a state provision so allowing, a plaintiff may satisfy his initial burden of proof by relying upon evidence of “recent and remote intentionally segregative actions” of the school board Columbus, 443 U.S. at 463-65, 99 S.Ct. at 2949-51 (emphasis added); see Dayton II, 443 U.S. at 537, 99 S.Ct. at 2979. In both cases, the affirmative duty to eradicate the effects of past segregative conduct not only had been unfulfilled, but also segregative practices persisted. Columbus, 443 U.S. at 460-63, 99 S.Ct. at 2948-49; Dayton II, 443 U.S. at 537, 99 S.Ct. at 2979. Either type of violation would satisfy the intent requirement under the fourteenth amendment; the basis for a system-wide remedy was “purposefully segregative practices with current segregative impact.” Columbus, 443 U.S. at 466, 99 S.Ct. at 2951; Dayton II, 443 U.S. at 537-38, 99 S.Ct. at 2978-79. [215] This court questions the applicability of Keyes an Columbus because those cases involved initial determinations of liability concerning policy-based dual, rather than statutorily dual, school systems. See Court’s Opinion at 862. The court explains that the presumption developed in Keyes is limited only “to establish[ing] initial de jure segregation in a case where no statutorily mandated segregation exists.” Court’s Opinion at 863 n. 27; see also Columbus, 443 U.S. at 458, 99 S.Ct. at 2946 (using Keyes presumption to establish system-wide segregation in 1954); Dayton II, 443 U.S. at 535, 99 S.Ct. at 2978 (same). According to the court, a different presumption “applies . . . after either statutorily-mandated or policy-based de jure segregation has been established.” Court’s Opinion at 863 n. 27. The court then cites Dayton II in a later discussion for support. Court’s Opinion at 863. However, lik Columbus, Dayton II involved an initial determination of system-wide liability in Ohio where statutorily mandated segregation ceased after 1888. 443 U.S. at 534-35, 537, 99 S.Ct. at 2977-78, 2979; Columbus, 443 U.S. at 455-56, 455 n. 4, 99 S.Ct. at 2945-46, 2945 n. 4. Segregation by official policy, not by statute, was at issue. [216] In both Columbus and Dayton II, the Keyes presumption was employed to decree a current system-wide remedy on the basis of recent and remote purposefully segregative action, including the failure to satisfy the affirmative duty to eliminate a dual system. Columbus, 443 U.S. at 467-68, 99 S.Ct. at 2951-52(discussing use of Keyes); Dayton II, 443 U.S. at 537, 99 S.Ct. at 2979 (citing Keyes), 443 U.S. at 534, 541-42, 99 S.Ct. at 2977, 2981-82 (consequences of 1954 dual system and intentionally segregative effect of actions since 1954 furnished basis of liability). Thus, the Supreme Court not only affirmed lower court findings of officially dual school systems as of 1954, but also approved current system-wide remedies based upon the authority of Keyes. Columbus, 443 U.S. at 467-68, 99 S.Ct. at 2951-52.
III.
[217] In 1973, an action was filed against U.S.D. 501 and various other governmental defendants principally alleging that children in east and north Topeka (with higher concentrations of minority students) received inferior educational opportunities and facilities as compared to children in west and south Topeka Johnson v. Whittier, No. T-5430 (D.Kan. filed Sept. 10, 1973). The filing of Johnson led to an investigation in November and December
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of 1973, by the U.S. Department of Health, Education and Welfare (HEW) to determine whether U.S.D. 501 was in compliance with Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Rec. ex. vol. II at 30.
[218] In January 1974, HEW released its findings by letter. The findings of HEW are very similar to the plaintiffs’ allegations in this case. Specifically, HEW determined four areas of non-compliance. First, HEW claimed that a “substantial number of . . . schools continue to operate with student racial compositions not consonant with a unitary plan of student assignment capable of fully desegregating [the] district.” Rec. ex. vol. V at 13. HEW found that five elementary schools “have substantially disproportionate minority student compositions clearly the result of a former dual pattern of operation.” Id.The schools and minority percentages were: Monroe (73.98%), Lafayette (61.22%), Lowman Hill (49.08), Parkdale (91.81%) and Belvoir (71.90%). Id.; rec. ex. vol. II at 72. Second, optional attendance zones were criticized. In the “most extreme” (and only) case mentioned “students transferring from areas outside the Lafayette attendance area outside the Lafayette attendance area constitute approximately one-third of the minority enrollment.” Rec. ex. vol. V at 13. Thus, HEW was concerned with transfers by minorities to schools with already high minority percentages. Third, HEW found that junior high school facilities in schools with higher minority percentages (Crane, 50.85%; Curtis, 28.90%; East Topeka, 63.32%; and Highland Park, 27.16%) generally were inferior to and older than the four schools with the lowest percentage of minority enrollment (French, 2.97%; Landon, 1.89%, Jardine, 2.13% and Capper, 1.23%). Id. at 13-14; rec. ex. vol. IV at 84 (1973-74 racial inventory). Fourth, HEW found that a larger percentage of minority students, as compared to white students, attended elementary schools with inadequate kindergarten rooms and smaller library media centers. Rec. ex. vol. V at 14; vol. X at 1435. [219] In February 1974, the board, while not admitting liability, directed its administrative staff to develop a plan for compliance which could include reassigning students, redefining attendance areas, closing schools and constructing new or modifying existing facilities. Rec. ex. vol. II at 72. The plan developed by the staff was presented in April 1974, and called for changing the attendance areas of 22 schools and closing 7 schools. Id. A concerned parents group complained about the lack of parental involvement and sought to be involved in the development of any plan. Id. at 74. Unlike a federal court, a democratically elected school board is charged with listening to parental concerns. The plan prepared by the staff was not adopted. Id. at 80. Instead, the board unanimously rejected the plan as creating inconvenience and hardship while lowering the quality of education. Id. at 80, 82. The board resolved that the “District determine if inequality of educational opportunities exist, and if so, take the remedial steps necessary to rectify the same, retaining the neighborhood school concept wherever possible.” Id. at 80. [220] In June 1974, HEW initiated formal administrative proceedings to terminate federal funds for the district’s alleged lack of compliance with Title VI. See In re Topeka Unified School District No. 501, HEW Docket No. S-79. In the Notice of Opportunity for Hearing, HEW’s litigating position unfolded. Rec. ex. vol. V at 150-58. HEW alleged that Topeka never fully desegregated its elementary and junior high schools as required by Brown I and that there were a substantial number of schools that were “one-race, virtually one-race, or substantially disproportionate in student racial composition.” Id. at 155 (¶¶ 12, 13). In addition to alleging a dual system with respect to student assignment and facilities, HEW claimed that the school district “has continued to assign faculty in a manner which reinforces the racial identity of its substantially disproportionate and one-race schools.” Id. at ¶ 14. [221] The board went to federal court and sought to enjoin HEW from holding the hearing and cutting off federal funds. The board took the position that the entire Topeka system was still under the 1955
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order to comply with Brown I. See Brown v. Board of Educ., 84 F.R.D. 383, 390-91 (D.Kan. 1979). The district judge agreed and concluded that the district court was the proper forum for resolving desegregation claims. Id. at 391. The board then developed a short-range facilities plan which resulted in the closing of two elementary schools (Clay, 25.35% minority percentage, and Monroe, 82.73%) and two junior high schools (Crane, 52.85%, and Curtis, 25.64%), all at the end of the 1974-75 school year. Rec. ex. vol. II at 90-92, 96; ex. vol IV. at 87-88; vol. X at 1436. Monroe Elementary was the last formerl de jure black school, and it was closed at the end of the 1974-75 school year. Rec. ex. vol. II at 84, 90. Ironically, the board hired Dr. Gordon Foster, assisted by Mr. Lamson, who presented alternate suggestions. These parties became the plaintiffs’ lead expert witnesses in this case.
[222] By May 1975, the board had adopted an affirmative action plan, and approved the creation of a citizens’ advisory committee and a specialized learning center to “be operated in a manner intended to encourage integration among minority and majority students.”Rec. ex. vol. II at 94; ex. vol. IV at 3-8; vol. X at 1449-52. All of these programs are still in place, including the learning center which is known as the Topeka Adventure Center.[15] See Brown, 671 F. Supp. at 1309 (discussing Adventure Center). [223] In March 1976, a divided board adopted a long-range facilities plan, after sharing the proposal with and receiving input from the advisory committee and the community. Rec. ex. vol. II at 96, 99; vol. X at 1437. The plan was a major restructuring of the Topeka schools and it required five years for implementation due to budgetary limitations (cost of capital improvements) and to avoid a reduction in force. Rec. ex. vol. II at 97-98; rec. vol. X at 1454-55 (deputy superintendent Henson). The plan had three purposes: economic efficiency resulting in better conditions for students and staff alike, educational efficiency with respect to facilities and improvement of racial composition in the schools. Rec. vol. X at 1439. Board member Stratton[16] noted that financial concerns were important because of declining enrollment — the district had lost almost one-quarter of its enrollment (6,000 students) in five years. Rec. ex. vol. II at 97. Board member Hurd noted the overwhelming support in the community for the neighborhood school concept. Id. at 98. The plan contemplated the construction of new schools, the closing of older facilities, and the redrawing of attendance boundaries, taking into consideration the anticipated effects on the racial composition of the schools. For our purposes, the principal components of the plan, which this court refers to as a “brief flurry of action,” Court’s Opinion at 874, included: elimination of all remaining optional attendance areas; closure of five junior high schools (Boswell, Capper, East Topeka, Highland Park and Roosevelt); transfer of the ninth grade to the senior high schools in the 1980-81 school year, conversion of Central Park Elementary to a middle school and construction of a new middle school at the Holliday-State Street site; and the closure of six elementary schools (Central Park, Grant, Parkdale, Polk, RicePage 907
and Sheldon). Rec. ex. vol. II at 97-99, 100 (elimination of optional attendance zone at high schools); rec. vol. X at 1439-43 (discussion of middle school concept). In April, HEW officials came to Topeka for two days and discussed the long-range facilities plan, the capital improvements plan, the citizen’s advisory group, the affirmative action plan and the Adventure Center. Rec. ex. vol. II at 101.
[224] In September 1976, HEW moved to dismiss its administrative enforcement proceedings on the grounds that the school district had “adopted a plan to remedy the violations of Title VI. . . alleged in the Notice of Opportunity for hearing in this matter.”Id. at 175. An order of dismissal without prejudice was entered. Id. at 173. In April 1979, HEW received a complaint from Richard Gellar, M.D., alleging that the district’s proposed closing of Central Park Elementary (which was to be converted into Robinson Middle School) “could result in the segregated placement of students within the District on the basis of race.”Id. at 181. Dr. Gellar then amended his complaint to allege that the implementation of the Long-Range Facilities Plan “has resulted in increased segregation of students in schools since 1976.” Id. at 184. [225] The Office of Civil Rights conducted an investigation and concluded that “there is not sufficient evidence to conclude that the District’s pupil assignment practices implemented pursuant to the adoption of its Long Range Facilities Plan violate Title VI.”Id. at 185. The Office found that the district was complying with the Long-Range Facility Plan and “reassigning students in a nondiscriminatory manner.” Id. at 186. The Office also concluded that an open enrollment policy, which permitted students to attend a school other than their neighborhood school, “had not significantly affected the racial composition of its schools at this time,” but continued monitoring was promised Id. at 187. The concern was that open enrollment would contribute to increased minority enrollment at schools with high minority percentages. During the second year of the open enrollment policy, the board imposed a majority to minority limitation on the program which assured that transfers would only be approved if they enhanced racial balance. See rec. vol. XIII at 2700-01. [226] By the 1981-82 school year, the Long-Range Facilities Plan was implemented. Due to the conversion to middle schools, approximately 190 teachers were reassigned in 1980 “to achieve a distribution of minority staff members which will comply with the requirements of the law.” Rec. ex. vol. IV at 218. In 1981-82, the board operated 26 elementary schools, 6 middle schools, and 3 high schools. See infra note 18. The administrative staff designed the Long-Range Plan to have an integrative effect as the district court apparently recognized, but this court ignores. Rec. vol. X at 1460-1461, XIII at 2719 (deputy superintendent Henson); Brown 671 F. Supp. at 1299-1300. For example, the junior high school areas formerly served by East Topeka (71.4% minority in 1979), were combined with those of Holliday and Curtis (lower minority percentages), to be served by Chase Middle School which opened in 1980 with 38.5% minority students. Rec. vol. IV at 106, 110, X at 1461, XIII at 2722. Rice Elementary (33.6% minority in 1980), which the district court noted had a desirable racial balance, 671 F. Supp. at 1299, was closed, but its attendance area was divided between Lafayette and Belvoir, thereby reducing the minority percentage in these schools. Rec. ex. vol. IV at 109; vol. X at 1461; vol. XIII at 2721. Lafayette went from 61.3% minority to 56%, while Belvoir went from 75.6% to 62.8% minority. Rec. ex. vol. IV at 109, 122. Likewise, the closing of Crane Junior High (52.9% minority in 1974) resulted in most of those students attending Boswell which increased minority students from 14.6% to 28.5%. Id. at 88, 91. Then Boswell (42.5% minority in 1979) was combined with Roosevelt (19.5% minority in 1979), and all students were sent to the new Robinson Middle School which opened with 32.9% minority students. Id. at 106, 110; rec. vol. XIII at 2722-23. Moreover, this court points out that “the target minority percentages approved by HEW in 1976 have either been met or improvedPage 908
on.” Court’s Opinion at 878 n. 76.[17]
[227] With one exception resulting in the combination of two middle schools (Landon into French), the school boundaries for U.S.D. 501 remained constant from the 1981-82 school year until the end of the 1985-86 school year. Rec. vol. X at 1503-04. All schools remained open and the grade configurations remained the same. Thus, in analyzing whether there is a current condition of segregation, the district court had stable boundaries for a five-year period and could analyze data which was consistent (compiled the same way) and comparable (measuring the same phenomenon). What is apparent is that the racial composition remained stable, and even became more integrated, given slightly increased minority enrollment.[18] Brown, 671 F. Supp. at 1298.Page 909
IV.
[228] Having discussed the two desegregation plans completely implemented by the board as the law developed, I now contrast the district court findings with this court’s understanding of those findings. As an initial matter, it is useful to consider the scope of the school board’s affirmative duty to desegregate and the scope of our review of the district court’s findings.
A.
[229] This court tells us that “[w]hat more can and should be done, if anything, is the final component in a determination of unitary status.” Court’s Opinion at 865. It is up to the school district to “demonstrate that it has done everything feasible.” Id. at 866. Topeka has implemented two desegregation plans, one court-ordered and one effectively imposed by the federal government. Apparently, this court does not think that either plan counts for much, repeating in stentorian tone, that there is “no pattern to the changes over the years.” Court’s Opinion at 878 (emphasis omitted). Past efforts do not conform to the court’s vision of that which must be done. See id. at 878 (“The school district has unquestionably had the opportunity to draw up and execute a scheme designed to lead to comprehensive
desegregation.”) (emphasis added). This court is unable to see the desegregative effect of many changes because it has strayed far beyond the purpose of desegregation law.
at 746, 94 S.Ct. at 3128. And in evaluating the plan, the intrinsic value of state and local control of public education should be considered. Dayton v. Board of Educ. (Dayton I), 433 U.S. 406 at 410, 97 S.Ct. 2766 at 2770, 53 L.Ed.2d 851 (1977). To those three ends, Milliken II, 433 U.S. at 280-81, 97 S.Ct. at 2757-58, a voluntary plan should accomplish the most desegregation feasible. Feasibility includes not only geographic factors, but also funding and transportation factors. Lee v. Anniston City School System, 737 F.2d 952, 957 (11th Cir. 1984). “The effectiveness of a remedy is the question and it makes no sense to construct decrees that do not grasp the real world.”United States v.
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Pittman, 808 F.2d 385, 394 (5th Cir. 1987) (Higginbotham, J., concurring). Or, as stated by the First Circuit: “A realistic approach, moreover, serves the broader objective of ensuring that the courts do not intervene in school affairs any longer than is strictly necessary.” Morgan, 831 F.2d at 324.
[231] Thus, unitary or desegregated status does not mean that every school must approach the system-wide average of minority composition. As noted by the Fifth Circuit:[232] Monteilh v. St. Landry Parish School Bd., 848 F.2d 625, 632The constitution does not require school districts to achieve maximum desegregation; that the plan does not result in the most desegregation possible does not mean that the plan is flawed constitutionally. “The constitutional command to desegregate the schools does not mean that every school in the community must always reflect the racial composition of the school system as a whole.” [Swann, 402 U.S. at 24, 91 S.Ct. at 1280.]. “The school board’s constitutional duty is to cure the continuing effects of the dual system, not to achieve an ideal racial balance.” [Lee v. Tuscaloosa City School System, 576 F.2d 39 41 (5th Cir. 1978).].
(5th Cir. 1988) (footnotes omitted); accord Morgan, 831 F.2d at 325 (“Both the Supreme Court and this court have repeatedly stated that a judicially imposed desegregation remedy goes too far if it attempts to engineer some sort of idealized racial balance in the schools.”); Flax v. Potts, 864 F.2d 1157, 1160
(5th Cir. 1989) (“There is no constitutional mandate that each school in the school district reflect the racial composition of the school district as a whole.”); Pitts v. Freeman, 755 F.2d 1423, 1427 (11th Cir. 1985) (“We do not hold, however, that the defendants’ affirmative duty compels them to adopt the most desegregative alternative available.”); Lee, 737 F.2d 956-57. [233] When the constitutional violation is purposeful separation of the races caused by school officials in student and faculty/staff assignment, “[t]he mix that would have occurred but for the racism is a judicially created hypothetical.” United States v. Overton, 834 F.2d 1171, 1176 (5th Cir. 1987). The remedy is to match the school system to a model of unitary or desegregated status. Id. at 1176-77. A major focus of this court’s liability analysis is on schools which are predominantly white due to residential migration to the western part of Topeka. But the dominant purpose of desegregation law is to remedy the racial discrimination against minority groups, discrimination which was ineluctably part of a de jure system. See Price, 694 F.2d at 364-65. Merely because some schools are largely white in this predominantly white system is not “per se offensive to the Constitution.” Valley v. Rapides Parish School Bd., 702 F.2d 1221, 1226 (5th Cir.), cert. denied, 464 U.S. 914, 104 S.Ct. 276, 78 L.Ed.2d 256 (1983). What would be offensive to the Constitution would be the retention of all-minority or virtually all-minority schools “where reasonable alternatives may be implemented.” Id. (quoted in Monteilh, 848 F.2d at 633) see, e.g., United States v. Pittman, 808 F.2d 385, 391 (5th Cir. 1987) (rejecting magnet school plan which did not eliminate 2 one-race black schools serving 40% of the black elementary students). Given the district court’s findings, that condition is not present here because: 1) there are no all-minority or virtually all-minority schools in this system, and 2) those schools which have higher than average concentrations of minority students are not due to the effect of segregative actions by the defendants given the well-supported findings of the district court. [234] The court also indicates its concern with the few schools which have majority-minority or near majority-minority student enrollments, see supra note 18. Court’s Opinion at 869 n. 52, 872-73 n. 59. In a system which has achieved unitariness, a “no majority of any minority” requirement would be beyond what the Constitution requires. Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 434, 96 S.Ct. 2697, 2703, 49 L.Ed.2d 599 (1976). But even in a system which has not been declared unitary, the lack of absolute racial balance which is not attributable to the school
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board is not tantamount to hindering the process of desegregation.
B.
[235] Although this case involves constitutional claims of racial segregation by school officials, it is essential to keep in mind the proper division of functions between this court and the district court. Dayton Board of Educ. v. Brinkman (Dayton I), 433 U.S. 406, 410-11, 97 S.Ct. 2766, 2770-71, 53 L.Ed.2d 851
(1977). The district court is charged with hearing the evidence and rendering findings of fact. Our task is to review those findings under the clearly erroneous standard, with due regard for the power which Congress has invested in the district courts to make such findings. See Fed.R.Civ.P. 52(a). “The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court.” Anderson, 470 U.S. at 573, 105 S.Ct. at 1511. Overstep, we have!
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[239] The court justifies its de novo review of the numerical data as follows:[240] Id. at 868-69 (footnotes omitted). The court then makes the rather incredible statement that, in reaching its decision, “we did not rely upon the experts’ opinions.” Id. at 868 n. 50 compare id. at 869 n. 52 (“In a school district with a 26% minority student population, we think the number of schools in Topeka that approach or are over the 50% minority mark constitute persuasive evidence that the school system has not met its duty to desegregate.”) with rec. vol. V at 622-23 (Dr. Foster’s citing the presence of 3 elementary schools which are over 50% minority and 4 which are over 42% minority when asked his opinion of whether vestiges of the former dual school system exist). [241] The court contends that its disagreement with the district court merely concerns assessment of “essentially undisputed” facts, id. at 869, and of “basically uncontroverted evidence,”id. at 868 n. 50; however, in no way can it be said that the implications of the numerical date in this case were uncontested. Indeed, the month-long trial of this case belies that notion. Moreover, the characterization of the numerical date is inherently the province of the district court. [242] In 1985, the Supreme Court settled that the clearly erroneous standard applies “even when the district court’s findings do not rest on credibility determinations, but are based on physical or documentary evidence or inferences from other facts.” Anderson, 470 U.S. at 574, 105 S.Ct. at 1511. In 1985, Rule 52 also was amended to encompass documentary evidence. The Advisory Committee addressed and rejected considerations offered in support of the view that it was not necessary to give special deference to factual determinationsAs a general matter, it is important to note that much of the record evidence consists of statistics and other undisputed facts. Our differences with the district court lie mainly in how the essentially undisputed facts are assessed in light of the school district’s mandate to dismantle the segregated school system. We believe that the district court’s finding of unitariness is flawed by the undue deference it gave to the school district’s neighborhood school policy and the court’s failure to give the proper weight to its own findings that certain actions and omissions by the school district had a segregative effect.
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based on documentary evidence as opposed to credibility determinations:
[243] Advisory Committee on Civil Rules, Proposed Amendments to the Rules of Federal Civil Procedure, 105 F.R.D. 218, 223 (1984). There are sound policy reasons for adhering to the clearly erroneous rule in all cases, whether documentary or testimonial evidence is involved.These considerations are outweighed by the public interest in the stability and judicial economy that would be promoted by recognizing that the trial court, not the appellate tribunal, should be the finder of the facts. To permit courts of appeals to share more actively in the fact-finding function would tend to undermine the legitimacy of the district courts in the eyes of litigants, multiply appeals by encouraging appellate retrial of some factual issues, and needlessly reallocate judicial authority.
C.
[244] Another reason given for this court’s rejection of the district court’s factual findings is that it gave “undue deference” to the school district’s neighborhood school policy. Court’s Opinion at 869. A neighborhood school policy is not, in and of itself, violative of the fourteenth amendment. Crawford v. Board of Educ., 458 U.S. 527, 537 n. 15, 102 S.Ct. 3211, 3217 n. 15, 73 L.Ed.2d 948 (1982). Just as equal educational opportunity is a national policy, so too is neighborhood schooling. See 20 U.S.C. § 1701. There are significant advantages to neighborhood schooling, such as students walking to school, the absence of long bus rides, easier participation in extracurricular activities and possibly greater parental involvement. Of course, the advantages of neighborhood schools cannot outweigh the school board’s duty to comply with the Constitution and “dismantle the dual school system.” Swann, 402 U.S. at 28, 91 S.Ct. at 1282. To that end, this court has insisted that a neighborhood school plan be “impartially maintained and administered,” and “not used as a mask to further and perpetuate racial discrimination.”Dowell, 375 F.2d at 166.
[246] Swann, 402 U.S. at 28, 91 S.Ct. at 1282. As the above passage makes clear, it is a present constitutional violation which empowers a federal court to depart from a neighborhood school plan in favor of some other form of assignment in order to dismantle a dual school system. See Davis v. Board of School Commr’s, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577Absent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems.
No fixed or even substantially fixed guidelines can be established as to how far a court can go, but it must be recognized that there are limits. The objective is to dismantle the dual school system. “Racially neutral” assignment plans proposed by school authorities to a district court may be inadequate; such plans may fail to counteract the continuing effects of past school segregation resulting from discriminatory location of school sites or distortion of school size in order to achieve or maintain an artificial racial separation. When school authorities present a district court with a “loaded game board,” affirmative action in the form of remedial altering of attendance zones is proper to achieve truly non-discriminatory assignments. In short, an assignment plan is not acceptable simply because it appears to be neutral.
(1971) (remedy dependent on having found a violation).
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If the dual school system has been dismantled and there is no constitutional violation, a neighborhood school policy is constitutionally permissible.
[247] In the liability phase of this case, it was entirely appropriate for the district court to consider whether the school district had maintained and administered its neighborhood school policy in a neutral fashion, particularly because the district court found that “the effects of school segregation on residential choice, if any, are not cognizable today.” Brown, 671 F. Supp. at 1297 (emphasis added). There are other reasons to reject the court’s criticism of the district court’s findings on this point. See Court’s Opinion at 867, 867 n. 48. First, the district court was compelled to make its findings that the board maintained its neighborhood school policy in a race-neutral fashion because the major part of the plaintiffs’ case was devoted to proving otherwise. See, e.g., rec. vol. II at 23-26; vol. X at 1418; supp. vol. XI at 241 (summaries of Mr. Lamson’s findings). That is crystal clear on this 3,000 page plus record. The district court found that the neighborhood boundaries were not gerrymandered. Brown, 671 F. Supp. at 1301. Second, a fair reading of the district court’s opinion in this case makes it evident that the district court was well aware of its responsibility to look beyond district evidence concerning the intent of the school board, and also consider a foreseeability test in deciding whether the school board had failed to dismantle the dual system. The district court looked beyond the neighborhood school plan for segregative effect, thoroughly analyzing quantitative measures of racial composition. D.
[248] Another reason the court gives for rejecting the district court’s factual findings is that this court would weigh the evidence differently. Court’s Opinion at 869 (discussing “court’s failure to give proper weight to its own findings that certain actions and omissions by the school district had a segregative effect” and citing Diaz v. San Jose Unified School Dist., 733 F.2d 660 (9th Cir. 1984) (en banc), cert. denied, 471 U.S. 1065, 105 S.Ct. 2140, 85 L.Ed.2d 497 (1985), for an analogous proposition about clearly erroneous district court findings concerning segregative intent). Regrettably, this court does not give a fair recitation of the district court findings. We are told: “The district court made the following findings:
[250] Brown, 671 F. Supp. at 1300. It was not clearly erroneous for the district court to find that 1955 boundaries for closed schools do not figure large into the current situation, over 30 years later. Though a court must look closely and carefully, conduct which resulted in segregative effect thirty years ago may indeed be so attenuated as to be insufficient to support a finding of intentional segregation caused by the school board Keyes, 413 U.S. at 211, 93 S.Ct. at 2698; Higgins v. Board of Educ., 508 F.2d 779, 792 (6th Cir. 1974). Moreover, this finding demonstrates that the district court did consider the effect of school board action or inaction. [251] (2) “that the construction of new schools since that time hadthe effect of `promot[ing] racial separation;'” Court’s Opinion at 867 (emphasis added). [252] The district court said:A review of the school boundaries as they have developed over thirty years does not reveal a segregative pattern that remains today. The boundaries set around the former de jure black elementary schools after this case was remanded by the Supreme Court appear to have perpetuated the racial identity of those schools. But, the schools have long been closed and the segregative effects of those boundaries have attenuated entirely.
Although, on its face, the construction of schools, particularly on the west side of the district, appears to have promoted racial separation, the court does not believe that the district’s school construction
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policy was intended to maintain or promote segregation. Most of the construction occurred during the peak years of student enrollment. More schools were needed. The location of the schools in areas of residential expansion was consistent with the race-neutral neighborhood school concept. There is no evidence that the students attending these schools could have been accommodated in the existing schools or that land was available in the older, more racially mixed areas of the district to build new schools.
. . . .
[253] Brown, 671 F. Supp. at 1300 (emphasis added). This is a key finding, because with it, the trial court rejected Mr. Lamson’s theory that the school board could have sent students to inner city schools with higher minority concentrations that were underutilized, rather than construct, new facilities in areas that were expanding and predominantly white. See, e.g., rec. vol. II at 150-51, 179; III at 268-73, 311-14, 334-36; supp. vol. XI at 40-49. Contrary to this court’s opinion, the trial cour did not find that school construction since 1955 promoted racial separation. [254] (3) “that the reassignment of students from previous de jureschools to adjacent schools with higher-than-average percentagesof minority students had the effect of increasing thosepercentages;” Court’s Opinion at 867 (emphasis added). The district court discussed only one situation involving a de jureIn sum, it does not appear that the district’s school construction policy has promoted segregated residential patterns or segregated schools.
school on the page cited by this court, namely the transfer of Monroe students to Quinton Heights elementary school. See 671 F. Supp. at 1301. Monroe was closed at the end of the 1974-75 school year because at the beginning of that school year it only had 102 students. Rec. ex. vol. IV at 84, 90. Students were reassigned to Polk, Highland Park North and Quinton Heights. Rec. supp. vol. XI at 173. The minority percentage at Quinton Heights went from 37% (84 out of 227) in 1974-75 to 39.09% (77 out of 197) in 1975-76. Rec. ex. vol. IV at 87, 94. Thus, after Monroe closed, 7 fewer minority students attended Quinton Heights even after the Monroe students were added. Given that the percentage increase (2.09%) of minority enrollment was so small and was accompanied by a decrease in the absolute number of minority enrollment, it is hard to fault the district court for finding that the school district did not act improperly when it sent Monroe students to three neighborhood schools, including Quinton Heights. [255] (4) “and that the assignment of faculty had the effect ofplacing minority faculty disproportionately at schools withhigher-than-average minority student percentages.” Court’s Opinion at 867 (emphasis added). [256] The district court said:
Plaintiffs’ major contention with regard to faculty and staff is that the assignment of faculty and staff has served to racially identify the schools in the district.
. . . .
[257] Id. at 1304-05. As discussed below, the faculty/staff assignment pattern in this case was almost within the range set by plaintiffs’ own expert, Dr. Foster, for the one year in which substantially complete data was available to him. See infraExamining the school system as a whole, despite the tendency to have more minority staff in schools with a greater than average minority student population, the court does not believe the district’s assignment policies serve to identify schools as intended for white or black students. The pattern identified by plaintiffs is not monolithic. The current percentages of minority staff in the district’s schools are generally within ranges acceptable to other courts in desegregation litigation. Other facets of faculty and staff policies are nondiscriminatory. In sum, the record before the court with regard to the district’s approach to faculty and staff is not indicative of a dual system of education.
note 31 and accompanying text. The district court’s finding that the faculty/staff assignment
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was not indicative of a current condition of segregation is supported by the record, particularly considering the assignment figures for the 1986-87 year.
[258] Continuing with its description of the lower court findings, this court concludes that (5) “the school district’s use ofspace additions, [(6)] its siting of Topeka West high school,[(7)] its drawing of attendance boundaries, and [(8)] its failureto adopt various reorganization plans did not further the processof desegregation.” Court’s Opinion at 867 (emphasis added) (citing Brown 671 F. Supp. at 1298-1301, 1308-09). That is only true if desegregation is viewed as replicating the system-wide minority average in every school, in addition to eliminating de jure system and its vestiges. The emphasis of the plaintiffs’ case was on the alleged segregative intent and effect of school board actions and the board’s inattention to racial balance. The board came forward with legitimate, non-discriminatory reasons (strong enough to disprove segregative intent) for many of its actions and attributed the racial composition of several schools to demographic forces. More importantly, the school board was able to convince the district court that there was not a current condition of segregation in Topeka, something which is amply supported by the record and not refuted by this court’s opinion. [259] Contrary to the study by the plaintiffs’ expert, the district court found that space additions were not “intentionally used to promote segregation or that schools are racially imbalanced today because of space additions.” Brown, 671 F. Supp. at 1299. [260] As for the siting of Topeka West high school, it must be remembered that Topeka never had a dual system of education at the high school level. The site for Topeka West was acquired in the early or mid-50’s from a single family because it was big (40 acres) and well-located. Rec. vol. X at 1433, 1506-07. The district court found that the construction of Topeka West was a logical response to the overcrowding of Topeka High and the rapid population growth which was occurring in the western part of the district. Brown, 671 F. Supp. at 1300; see also rec. ex. vol. I at 14 (building patterns indicating that over half of new housing build in Topeka from 1950-70 was in the west area); rec. vol. X at 1432-33 (Topeka High School was overcrowded; Topeka West was built, without a planned athletic facility, only after a second bond election). Topeka doubled in population between 1955 and 1965. Rec. supp. vol. VII at 2094. Indeed, the enrollment at Topeka West was so great that some of the attendance area was transferred back to Topeka High School, furthering integration. Rec. vol. X at 1434. A site in west Topeka made sense because the newly annexed Highland Park High served the east part of the city, while Topeka High was centrally located. Brown, 671 F. Supp. at 1300; rec. ex. vol. I at 14. Moreover, the site was large enough to meet the school board’s needs. Rec. vol. X at 1507. [261] Reorganization plans N and X, proposed in 1984, assumed that no school would have a minority enrollment of greater than 50%, and projections indicated that number would be reduced to 45%. Rec. ex. vol. V at 51; Brown, 671 F. Supp. at 1308-09. In 1985-86, three schools had majority-minority populations: Belvoir (61.86%); Lafayette (56.81%) and Highland Park North (57.93%) Brown, 671 F. Supp. at 1294. The district court was correct in finding that Plans N and X did not constitute a forgone opportunity to improve the racial composition of the schools. Indeed, the failure of Topeka to adopt Reorganization Plans N and X in 1984 should count for nothing in this case. See Court’s Opinion at 877 n. 75 (acknowledging opposition to plans). If there is one consistent theme in this record it is that the plans were expensive ($13 million for N; $15 million for X) and that they were opposed by every segment in Topeka. See rec. vol. XII (testimony of former board members) at 2451 (opposition came from every quadrant geographically, as well as every racial segment), 2452 (plans were expensive), 2467 (cost of plans), 2471-72 (plans would have closed many schools and created some very large schools), 2479 (no sector of community would support plans), 2481 (NAACP vigorously
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opposed plans); vol. XIII (testimony of deputy superintendent) at 2728 (community attached tremendous importance to neighborhood schools and opposed plans).
[262] In determining that there is no current condition of segregation in Topeka, the district court carefully examined 18 factors: statistical measures of student population; student transfer policy; optional attendance zones; space additions; school closings; school openings; school site locations; school boundary locations; history of the schools; facilities; extracurricular activities; curriculum; transportation; faculty and staff; community attitudes; equality of education; opportunities for desegregation; and other factors. The district court properly examined the traditional factors which bear on unitariness, in addition to those factors raised by plaintiffs which might have a bearing on unitariness. Baliles, 829 F.2d at 1312. Its findings in favor of the defendants in each area are supported by the record, and its ultimate finding of unitariness is likewise supported. V.
[263] This court’s criticism of the district court is succinctly stated:
The court evidently believed that if these two criteria, i.e., no intent to discriminate and consistency with a race-neutral neighborhood school plan, were met, the school district’s actions would pass constitutional muster.
. . . .
[264] Court’s Opinion at 867, 868. The district court’s attention to the neighborhood school plan already has been discussed in part See supra pp. 913-14. This court misses the mark if it is implying that intent is not relevant in this case. At a minimum, there must be a finding that the condition complained of is th effect of discriminatory intent, whether that discriminatory intent originated in 1954 or since. The district court made permissible inferences given the evidence. It determined that there was not a current condition of segregation and, therefore, the plaintiffs were not entitled to a presumption that the racial imbalance in the school system was a product of past segregative actions. [265] The whole of desegregation law is predicated upon a constitutional violation. “The school desegregation cases have also adhered to the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.”Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597 (1976). The Constitution does not employ a no-fault approach to liability when it comes to school board actions. Contrary to the court’s opinion, intent is still relevant because it bears on causation. Only intentional state action which brings about or maintains segregation results in a constitutional violation. Columbus, 443 U.S. at 464, 99 S.Ct. at 2950. Even in a system that once was dual, whether by statute or practice, “[d]isparate impact and foreseeable consequences, without more, do not establish a constitutional violation . . . . [But] actions having foreseeable and anticipated disparate impact are relevant evidence to prove the ultimate fact, forbidden purpose.” Id.While it did find that the school district had taken some actively desegregative actions, we are convinced that the court’s overall conclusion on unitariness was fatally infected by the inadequacy of the burden of proof to which it held the school district.
Thus, a district court may consider a school board’s adherence to a neighborhood school policy which may lead to racial imbalance, as one factor among many, in deciding “`whether an inference of segregative intent should be drawn.'” Id. at 465, 99 S.Ct. at 2950 (quoting Penick v. Columbus Bd. of Educ., 429 F. Supp. 229, 255 (S.D.Ohio 1977), aff’d in part and vacated in part, 583 F.2d 787 (6th Cir. 1978), aff’d, 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979)). “The inference is permissive, not mandatory.” Higgins, 508 F.2d at 793 (“While it is true that a court may infer such an intent [purposeful segregation] from the circumstances there is no authority for the proposition that such an intent must be inferred in all cases
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where segregated patterns exist in fact”) (emphasis in original).
[266] In Dayton II, the Court said:[267] Dayton II, 443 U.S. at 536 n. 9, 99 S.Ct. at 2978 n. 9. Merely because Topeka built and operated neighborhood schools that fall outside the statistical measures proposed by plaintiffs’ experts does not mean that there is a current condition of segregation in Topeka. After two desegregation plans, this case is, at best, one of “foreseeability” based upon effect, although plaintiffs contended that they had shown more. See, e.g., rec. vol. II at 23-26 (opening statement), III at 381 (plaintiffs’ expert cataloged effect of school board actions), IV at 449 (plaintiffs’ expert took “racial balance as your starting point,” in proposing alternatives to board’s administrative choices). [268] To be sure, “the measure of the post-Brown I conduct of a school board under an unsatisfied duty to liquidate a dual system is the effectiveness, not the purpose, of the actions in decreasing or increasing the segregation caused by the dual system.” Dayton II, 443 U.S. at 538, 99 S.Ct. at 2979 Columbus, 443 U.S. at 458-59, 99 S.Ct. at 2946-47; Green, 391 U.S. at 437-38, 88 S.Ct. at 1693-94. That, however, does not bar the district court from considering the school board’s evidence that its actions have been effective in dismantling the dual system, that the current racial composition of the school system is not a product of discriminatory intent originating befor Brown I and living on in effect to the present day. This court’s opinion, by downplaying intent and causation, specifically the school board’s evidence that segregative effects of past discriminatory intent no longer remain, has imposed liability based on the inferences it wishes to draw from certain objective evidence and testimony upon which reasonable people could differ as to interpretation. On the surface, this process may appear to have the advantage of simplicity and consistency. But the close evidence in this case was hardly simple and we are not allowed such consistency at the expense of district court findings which have support in the record. [269] The district court was well aware that quantitative date in school desegregation cases may be indicative of past or present segregative intent. Brown, 671 F. Supp. at 1295. It also was cognizant of the school board’s affirmative duty to dismantle the dual system. Id. at 1292-93. Finally, the district court recognized that it could draw an inference of segregative intent or an inference of the lack thereof, based upon the efficacy of the school board’s desegregation efforts, including compliance with its affirmative duty:We have never held that as a general proposition the foreseeability of segregative consequences makes out a prima facie case of purposeful racial discrimination and shifts the burden of producing evidence to the defendants if they are to escape judgment; and even more clearly there is no warrant in our cases for holding that such foreseeability routinely shifts the burden of persuasion to defendants. Of course, as we hold in Columbus
today, ante, [443 U.S.], at 464-65 [99 S.Ct. at 2950-51], proof of foreseeable consequences is one type of quite relevant evidence of racially discriminatory purpose, and it may itself show a failure to fulfill the duty to eradicate the consequences of purposefully discriminatory conduct.
[270] Brown, 671 F. Supp. at 1293.Evidence of segregative motive or the absence of such intent is relevant but not controlling in determining unitariness. “The measure of the post-Brown I conduct of a school board under an unsatisfied duty to liquidate a dual system is the effectiveness, not the purpose, of the actions in decreasing or increasing the segregation caused by the dual system.” Dayton II, supra, 443 U.S. at 538, 99 S.Ct. at 2935.
In sum, a unitary school system is one in which the characteristics of the 1954 dual system either do not exist or, if they exist, are not the result of past or present intentional segregative conduct of defendants or their predecessors.
[271] Id. at 1295.The court shall examine many factors to decide whether illegal segregation exists
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in U.S.D. # 501. But, the statistical measures of racial makeup of the schools’ student bodies are of prime importance. Often in school desegregation cases such statistics alone prove a pattern of discrimination.
[272] Id. at 1308. Thus, I vehemently disagree with the court’s conclusion that the district court incorrectly considered intent, while ignoring the board’s affirmative duty. [273] The district court in this case discussed those factors which supported an inference of segregative intent or non-compliance with the affirmative duty to desegregate. It then explained why it rejected those inference. See Alexander v. Youngstown Bd. of Educ., 675 F.2d 787, 792-93 (6th Cir. 1982) (trial court may reject inferences of segregative intent). That critical discussion, however, is the departure for this court’s reversal See Court’s Opinion at 867 (summarizing district court’s findings). This court simply does not agree with the district court’s declining to draw those inferences. Although this court claims that the district court did not properly evaluate the evidence for segregative effect, no fair reading of the district court opinion would support that conclusion. The district court’s exhaustive discussion of statistical racial identifiability and its implication, as well as its detailed treatment of each school alleged to be racially identifiable, belie this court’s conclusion that the district court “failed adequately to weigh the conduct of the school district.” Id. at 868. [274] Perhaps the court has decided to dispense with the intent and causation inquiry because it seeks to ameliorate the effects of “subconscious racial discrimination.” See Court’s Opinion at 865-66. Indeed, the court’s remark concerning “longstanding racism” carries with it an implication which is unwarranted Id. at 866 (“Courts must assess the school district’s achievements with an eye to the possible and practical, but they must not let longstanding racism blur their ultimate focus on the ideal.”). The court’s explanation of the presumption it invokes, which I maintain is the same presumption discussed in Keyes,If a district has consistently dragged its feet on desegregation, then the vestiges of the segregated system may remain.
conforms with the tenor of the court’s opinion.[20] “This presumption ensures that subconscious racial discrimination does not perpetuate the denial of equal protection to our nation’s school children.” Court’s Opinion at 863 (footnote omitted). [275] The court tells us that a presumption different than the one i Keyes, see supra note 20, applies in this case because the school district was operating a de jure system in 1954. Court’s Opinion at 862-63, 863 n. 27. Reliance is placed on a footnote i Keyes, 413 U.S. at 211 n. 17, 93 S.Ct. at 2699 n. 17. That footnote is contained in a discussion of defenses the school board may raise to the prima facie case, including the defense that the effects of past segregative acts have been completely attenuated. The footnote explains that once the presumption is invoked, plaintiffs are not forced to prove non-attenuation because the burden shifts to the school board to prove attenuation. Id. Express language in Keyes makes it clear that the presumption is not limited only “to establish[ing] initial de jure segregation in a case where no statutorily mandated segregation exists.” Court’s Opinion at 863 n. 27. Th Keyes Court stated:
[276] 413 U.S. at 210, 93 S.Ct. at 2698; see also Columbus, 443 U.S. at 457 n. 5, 99 S.Ct. at 2946 n. 5.Thus, be it a statutory dual system or an allegedly unitary system where a meaningful portion of the system is found to be intentionally segregated, the existence of subsequent or other segregated schooling within the same system justifies a rule imposing on the school authorities the burden of proving that this segregated schooling is not also the result of intentionally segregative acts.
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[277] The reason for the presumption is that “`the prior doing of other similar acts, whether clearly part of a scheme or not, is useful as reducing the possibility that the act in question was done with innocent intent.'” Keyes, 413 U.S. at 207-208, 93 S.Ct. at 2696-97 (quoting 2 J. Wigmore, Evidence 200 (3d ed. 1940)). Thus, “a finding of illicit intent as to a meaningful portion of the item under question has substantial probative value on the question of illicit intent as to the remainder.”Keyes, 413 U.S. at 207-08, 93 S.Ct. at 2696-97. The Supreme Court has yet to incorporate subconscious racial discrimination into the equal protection analysis.[21] While a finding of de jure segregation pursuant to statute in 1954 eases the plaintiffs’ evidentiary burden, Columbus, 443 U.S. at 457 n. 5, 99 S.Ct. at 2946 n. 5, intent, whether proven by direct or circumstantial evidence, remains an essential element. This court apparently concedes as much, when in the context of its discussion of the burden of proof and unitariness states:[278] Court’s Opinion at 865 (emphasis added and footnotes omitted). Several cases, including one of our own, also have considered good faith of the school district in deciding unitariness Dowell v. Board of Educ., 890 F.2d 1483, 1499 (10th Cir. 1989) Morgan, 831 F.2d at 321; Ross, 699 F.2d at 226. Good faith speaks to intent and causation and making such inquiries is inconsistent with claiming that intent is irrelevant. [279] The court comments that: “A focus on provable intent alone would deny a remedy to too many Americans.” Court’s Opinion at 863. While this may be true once there has been a finding of a current condition of segregation in a meaningful portion of a school system with a relevant history of segregation by law, see Keyes, 413 U.S. at 210, 93 S.Ct. at 2698, such a finding should be a prerequisite to invoke the presumption discussed in KeyesFinally, objective proof of the school district’s intent must be considered. How a district lobbies its patrons and government agencies on issues that affect desegregation, whether it seeks and heeds the desegregation recommendations of others, and the cooperativeness of the district in complying with court orders, for example, bear on the manner in which the district has shaped current conditions in the school district.
and insure that any resultant system-wide desegregation order is linked to past or present racial discrimination. What the court has done in this case is to substitute its judgment for that of the district court concerning the degree of imbalance necessary to invoke and sustain the presumption. Nowhere is this more evident than in the court’s discussion of whether there is a current condition of segregation with respect to student and faculty/staff assignment in the Topeka schools.
VI.
[280] It is clear that to sustain the presumption, the plaintiffs were required to prove
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“a current condition of segregation from intentional state action” with respect to “a meaningful portion of [the] school system.”[22] Keyes, 413 U.S. at 205, 208, 93 S.Ct. at 2696, 2697. “Significant racial imbalance” in schools may
operate as a “signal” to shift burden of proof, but even that “is a very different matter from equating racial imbalance with a constitutional violation calling for a remedy.” Milliken v. Bradley (Milliken I), 418 U.S. 717, 741 n. 19, 94 S.Ct. 3112, 3125 n. 19, 41 L.Ed.2d 1069 (1974). Turning first to student assignment, what the court has done is to decide that if certain schools do not fall within certain percentages of minority enrollment, say 11% to 41% or even 10% to 60%, those schools are racially identifiable and indicative of a current condition of segregation resulting from the prior de jure
system. Court’s Opinion at 869-70.
A.
[281] Plaintiffs’ expert Mr. Lamson testified that a school was racially identifiable as black if it had more than twice the system-wide average of black students. Rec. vol. III at 365. In 1985-86, the black student percentage was 18.4%, so a school with than more than 36.8% black students would have been racially identifiable. On the other hand, a school was racially identifiable white if it had less than one-half the system-wide average of black students. Id. Thus, a school would have been racially identifiable white if it had less than 9.2% black students. Moreover, under Mr. Lamson’s view of racial identifiability, a school which had the system-wide average of black students still might be racially identifiable and segregated if neighboring schools had a greater percentage of white students. Rec. vol. IV at 531-32. Thus, according to his view, in 1952-53, Belvoir was segregated when it had 20.8%[23]
black students and system-wide black percentage was 11%. Id. at 456-59. Likewise, in 1985-86, Robinson Middle School was racially disproportionate, according to Mr. Lamson, when it had 20.84% black students and the system-wide middle school black percentage was 19.01%. Id. at 486-88. Plaintiffs’ expert Dr. Foster did not agree with Mr. Lamson that a school which had the system-wide minority average still could be racially identifiable. Rec. vol. V at 687-88.
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[283] The court discusses the testimony of defendant’s expert, Dr. Armor, and gives the impression that Dr. Armor suggested a standard whereby a school would not be racially identifiable (segregated) if it contained minority students within a 10% to 60% range. Court’s Opinion at 870, 873; see also id. at 884 (court’s discussion of “predominantly white schools.”). The court then concludes, using this standard, that there are 9 schools which are racially identifiable. Id. at 870. Yet, Dr. Armor was critical of the concept of basing liability on quantitative measures of racial identifiability.[24] [284] In the interest of completeness, this court should have summarized Dr. Armor’s testimony concerning the implications of his “range of acceptability of 10-60%.” Id. at 870. This court should have explained that Dr. Armor, under questioning from the court, offered his conclusion, based on three quantitative measures (his absolute standard, the dissimilarity index and the relative exposure index) that the school board had met its affirmative duty under Brown I and had desegregated the elementary grades as to student assignment.[25] Rec. vol. XIII at 2641-42. Had the court done so, it would not have been able to attribute a finding of nine racially identifiable schools by student assignment which result in a current condition of segregation, to Dr. Armor. See Court’s Opinion at 870, 873, 884 (invoking Dr. Armor’s approach to justify findings). [285] Dr. Armor did point out that under his 10-60% range, one elementary school (Belvoir; 61.86) exceeded it and five elementary schools fell below it (Crestview, 8.94%; Gage 9.43%; McCarter, 9.16%; McClure, 7.21%; Potwin 7.73%). Rec. vol. XIII at 2580; ex. vol. IV at 170-74. Applying this 10-60% range to the secondary schools, three schools were below (French, 6.23%; Landon, 9.29% [now closed]; Topeka West, 7.94%). See rec. ex. vol. IV at 175-76. However, Dr. Armor preceded and concluded his list with the caveat that merely being outside his range is not necessarily indicative of a current condition of segregation. Rec. vol. XIII at 2579, 2580. This is in accord with plaintiffs’ expert Dr. Foster who admitted that racially identifiable schools under his ± 15% standard are not necessarily unlawfully segregated. Rec. vol. VI at 792-93. Dr. Armor testified as follows:Page 923
[286] Rec. vol. XIII at 2579. The district court’s finding that “students are not separated on the basis of race,” Brown, 671 F. Supp. at 1298, is supported by Dr. Armor’s testimony and the factual findings regarding the above schools contained in the balance of the district court’s opinion. Id. at 1294, 1301-04. [287] Assuming, arguendo, that this court’s interpretation of Dr. Armor’s testimony concerning the 10-60% range had merit, I submit that it would be anomalous to find a current condition of segregation regarding student assignment based on only one elementary school (Belvoir) which exceeded the target minority percentage and just barely (by 1.86%). Regarding the 8 predominantly white schools mentioned by Dr. Armor, in a system with low minority percentages overall, it is not unexpected to find some schools which will have large percentages of white students. Court’s Opinion at 869. More importantly, every single one of those predominantly white schools identified by Dr. Armor, with the exception of McCarter (which went from a 9.20% minority percentage to 9.16%), has increased the percentage of minority enrollment when the 1985-86 figures are compared to those in 1981-82. See supra note 18. [288] Moreover, the district court considered other measures of integration in deciding that unlawful segregation did not exist Brown, 671 F. Supp. at 1298. Specifically, Dr. Armor testified concerning the dissimilarity index and the relative exposure index which are measures of system-wide integration. It is passing strange for the court to all but dismiss the significance of these measures in its discussion of whether there is a current condition of segregation, yet report them[26] and rely upon them concerning the positive effects of the board’s implementation of its second desegregation plan. Court’s Opinion at 870 n. 55 (rejecting measures because they would not identify a hypothetical all-black school), 875-76, 876 n. 71 (relying on measures to indicate success of school district’s desegregation efforts from 1975-81). The court’s criticism of these measures, that “they say nothing about the racial balance in individual schools,” Court’s Opinion at 870 n. 55, is really only partially correct because the formulas rely upon data concerning each individual school. Dr. Armor readily indicated that these indices are to be supplemented by looking at individual schools. Rec. vol. XIII at 2655; see also Court’s Opinion at 870 n. 55. And so the district court did. [289] The dissimilarity index measures the departure of a school system from perfect racial balance.[27] Id. at 2581. If every school had the system-wide minority composition, there would be perfect racial balance and the index would have a value of zero Id. On the other hand, if everyWhat I have been talking about in terms of this standard or a definition of integrated school has been primarily from the social science conception of what would constitute, what we ought to define as an integrated school or a desegregated school. It doesn’t necessarily mean that a school that falls outside that range is, is in violation of the [C]onstitution or is wrong or is improper. One has, in any liability analysis one has to add to that — even my standard one needs to add the analysis of why a school is 5 percent minority or 70 percent minority outside my ideal range because if it’s not, if it’s that way because of demographic factors, then I don’t, I don’t see necessarily a basis for why it has to be changed; but I would still hold that ideally or what you strive for ought to be schools within that range.
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school were completely segregated, the index value would be expressed as 1.0 (or 100).[28] Id. The relative exposure index measures the opportunity for interracial contact given the number of whites and minorities in the system. Id. at 2582. A value of zero indicates total interracial contact, whereas a value of 1.0 (or 100) indicates a total separation. Id. Thus, regarding either measure, a decreasing value reflects a desegregative effect. Dr. Armor preferred the exposure index because it is less a measure of racial balance. Id. at 2583.
[290] Dr. Armor calculated the dissimilarity index and relative exposure index for Topeka over time.[29] Regarding the elementary schools, he testified that from 1966 to 1985 both indices dropped significantly indicating that: 1) there has been a “very substantial decline in the level of segregation” over 20 years, and 2) this improvement came at a time when the percentage of minority students increased from less than 20% (16.5%) to its present level of 26%, and 3) the 1985 value of approximately 15 in the exposure index suggests that a “very substantial degree of interracial contact” is occurring at the elementary level. Id.at 2587. Regarding the middle schools, he reported similar trends, though not quite as dramatic: declines in both indices, improvement during a time when the percentage of minority students rose from 15% to its present level of 26%, and “a very substantial degree of desegregation.” Id. at 2587-88. As to the high schools, neither index shows appreciable change over time, although both indices have dropped slightly. Id. at 2588. The reason for this is that both indices started out quite low and it is difficult to get below 10 on the exposure index (1985 value for high schools was 7.3). Id. at 2588. [291] Dr. Armor reasoned that had Topeka done nothing concerning integration, it is very likely that the indices would have remained at their significantly higher 1966 levels. Id. at 2589-90. Contrary to this court’s appellate factfinding, see
Court’s Opinion at 880 (attendance boundaries) 881-82 (school closings), Dr. Armor testified that “the reason why desegregation has improved to this extent was a series of school closings and boundary changes” affecting predominantly minority or white schools. Rec. vol. XIII at 2590. Dr. Armor also testified that the system’s transfer policies over the years had no significant effects, either segregative or desegregative. Id. at 2598. The policies were
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neutral. Id. This evidence favorable to the defendants was corroborated by defendants’ other expert, who considered what would have happened had school boundaries been held constant as of 1963.[30]
B.
[292] The plaintiffs’ experts disputed Dr. Armor’s work, just as he disputed theirs. For example, plaintiffs’ expert Dr. Crain testified concerning the limitations of these indices and that other cities had lower dissimilarity and exposure indices and that more could be done as evidenced by Plans N and X that were not adopted. Rec. vol. IX at 1270-73, 1282-84, 1287; but see F. Welch A. Light, New Evidence on School Desegregation-U.S. Comm’n on Civil Rights Clearinghouse Pub. No. 92, 38 (1987) (“The fact that the dissimilarity index is useful in depicting changes within a district does not imply that it is useful in comparing districts.”). Dr. Foster indicated that he used the dissimilarity index “to determine the progress made across the State of Florida in school desegregation from year to year when data are available,” and explained that it was not used “on a school-to-school basis.” Rec. vol. IV at 556, vol. V at 686. In short, the experts disagreed concerning the proper approach and whether there was a current condition of segregation regarding student assignment.
[294] Pitre v. Western Elec. Co., Inc., 843 F.2d 1262, 1266 n. 1 (10th Cir. 1988). If ever there were a case for application of these principles, this is the one. [295] For this case not only involves documentary evidence, it also involves credibility determinations. At one point, in consistently exercising his discretion to admit evidence that might bear upon the truth of the issues, the trial judge remarked: “Let meThe Anderson Court justified this conclusion by asserting that “[t]he rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility. The trial judge’s major rule is the determination of fact, and with experience in fulfilling that role comes expertise.” Anderson, 470 U.S. at 574, 105 S.Ct. at 1512. Although even the trial judge may not always be confident that he “knows” what happened, he is in the best position to “determine whether the plaintiff has succeeded in presenting an account of the facts that is more likely to be true than not.” Id. at 580, 105 S.Ct. at 1515.
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say, it is the duty of a court to listen to the experts on both sides, and decide which set of experts to believe. I think it is necessary that I hear everything I can hear on this subject.” Rec. vol. IX at 1222. It does not surprise me that the trial judge exercised his prerogative to believe the defendants’ experts.
[296] Even on this cold record, it appears that the defendants’ experts may have had a patina of believability that comes with acknowledging ambiguity (the evidence is rarely all one way), yet still supporting a position. See M. Chesler, J. Sanders D. Kalmuss, Social Science in Court — Mobilizing Experts in the School Desegregation Cases 90-106 (1988). For example, defendants’ expert Dr. Armor testified that the open enrollment plan which operated for two years and then was discontinued in 1980 had a slightly segregative effect. Rec. vol. XIII at 2624 Brown, 671 F. Supp. at 1298. Likewise, defendant’s expert Dr. Clark testified that a boundary change for Parkdale between 1963-64 and 1966-67, which resulted in a greater concentration of minority students “could be discussed in terms of having partly segregative effects, partly demographic effects.” Rec. vol. XI at 2326; ex. vol. I at 43. The court notes this fact in its opinion, Court’s Opinion at 875, while completely ignoring the conclusion of defendants’ expert which supports the district court’s findings. [297] The plaintiffs put on much testimony concerning factual matters which the Supreme Court decided as a matter of law years ago, namely the educational and psychological harms of segregation Brown I, 347 U.S. at 494-95, 74 S.Ct. at 691-92. Plaintiffs’ expert Dr. Crain testified that segregated schools are responsible for the following problems as they affect blacks who might attend such schools: 1) depressed performance on standard achievement tests, which cannot be remedied by compensatory education, 2) higher failure rates on minimum competency testing, 3) a propensity to attend black colleges, 4) a propensity to quit college, if a white college is selected, 5) lack of clear career aspirations, 6) employment discrimination, 7) discomfort with white supervisors, 8) more frequent job changes, 9) higher juvenile delinquency, 10) higher teenage pregnancy, 11) greater unhappiness at age 40, 12) a desire to live in an unintegrated area, 13) infrequent home ownership, and 14) greater discomfort around whites. Rec. vol. IX at 1231, 1237, 1243, 1251-52, 1254, 1255, 1257, 1259, 1260, 1261, 1262. Viewing the transcript, I do not think that this remarkable list, which Dr. Crain claimed was applicable to Topeka based on his brief visit, id. at 1264-65, enhanced his credibility. Nor did his definition of a segregated system seem consistent with that term as commonly understood in desegregation cases. Dr. Crain testified that, in his view, a segregated system was “when you have that perception of unequal racial composition,” because “the harmful effects are going to start occurring because the whole process of desegregation is going to start hitting.” Rec. vol. IX at 1289. Finally, Dr. Crain was quite willing to criticize the work of defendants’ expert Dr. Poggio, by equating a cognitive abilities test with the Kansas Minimum Competency test, yet Dr. Crain clearly was unaware of the sequence of the tests and the characteristics of each — regarding the Kansas Minimum Competency test, he did not know its objectives, what it purports to measure, how the test was designed or whether the passing scores change from year to year. Rec. supp. vol. X at 2862-71; supp. vol. IX at 2922-31 (Dr. Poggio’s refutation of Dr. Crain’s criticisms). Without question, the trial court credited Dr. Poggio’s analysis over that of Dr. Crain. Brown, 671 F. Supp. at 1307-08. [298] Plaintiffs’ expert Mr. Lamson was similarly emphatic. He testified that his task was “to identify all of those instances where administrative action would have tended to affect the racial composition of the schools.” Rec. vol. III at 363, see also vol. II at 105. After looking at hundreds of physical and administrative decisions (construction, portable building use, attendance boundaries, optional attendance zones) that affect student assignment for thirty years, Mr. Lamson’s conclusion is notable for its simplicity and its partiality:Page 927
[299] Rec. supp. vol. XI at 240-41. Mr. Lamson’s testimony proves a bit much. Analyzing the motivations and actions of multi-membered public bodies over three decades is difficult at best, but concluding that the Topeka system underwent no desegregation 25 years after Brown I blinks reality. Common sense tells us that even a broken clock is right twice a day. Yet too much of Mr. Lamson’s methodology has found its way into this court’s opinion, given the trial court’s rejection of the proposed findings supporting it. This is especially true concerning the court’s comments about optional attendance zones, attendance boundaries, and school openings and closings, Court’s Opinion at 877-82, because plaintiffs’ other lead expert, Dr. Foster, did not do an independent analysis of these factors. Rec. vol. V at 693; vol. VI at 739.I can confidently state that I was unable to find one instance where any of those physical and administrative educational tools were used as a part of a purposeful and ongoing program of affirmative pupil desegregation at either the elementary, junior high or middle, or senior high school level.
Quite to the contrary . . . all of those administrative tools were used in an ongoing manner to actively separate the Black and white elementary, junior high and middle, and senior high students of the Topeka school system wherever and whenever feasible.
C.
[300] The court also has found a current condition of segregation pertaining to faculty and staff assignment. Court’s Opinion at 870-72. The court’s reasoning here is questionable because, afte rejecting the plaintiffs’ standard as “very narrow,” id. at 870 n. 56, the court then finds liability when, even under the plaintiffs “very narrow” standard, all that would have been necessary to eliminate racial identifiability regarding certificated faculty would have been to exchange 13 pairs of faculty members in 1981-82. Rec. vol. V at 663-66. That is only 26 certificated faculty out of 911 then employed, or 2.85%.[31] Id.; rec. vol. VI at 773-74. Faculty members are not fungible; whether this could be accomplished depends upon being able to send 13 minority faculty members into different schools, and replacing them with 13 white faculty members, while making sure that all have the right teaching certificates. Rec. vol. V at 664-65.
(1970). Even if the racial composition of a school could be identified by assignment of faculty, that factor, in and of itself, does not mean that the school system is dual with respect to student assignment. Dayton II, 443 U.S. at 536 n. 9, 99 S.Ct. at 2978 n. 9. While a school should not be racially identifiable by its faculty, United States v. Montgomery County Bd. of Educ., 395 U.S. 225, 236, 89 S.Ct. 1670, 1676, 23 L.Ed.2d 263 (1969), the racial composition of the faculty need not
Page 928
be equivalent to that of the student population, Fort Bend Indep. School Dist. v. City of Stafford, 651 F.2d 1133, 1138
(5th Cir. 1981). It is possible for a school district to be unitary with respect to student assignment, but not with respect to faculty/staff assignment. Pasadena, 427 U.S. at 436, 96 S.Ct. at 2704-05; Morgan, 831 F.2d at 318-19.
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minority faculty staff at the elementary schools was 11.23%. Rec. ex. vol. IV at 261, 15% of 11.23% is 1.68%; thus, a school could vary by ± 1.68% from the minority percentage of 11.23%. Id.;
rec. vol. V at 650. This means that a school would be racially identifiable if it had more than 12.9% (11.23% plus 1.68%) or less than 9.6% (11.23% minus 1.68%) minority faculty/staff. Id.
Applying this concept to the secondary schools which had a minority faculty staff percentage of 12.65%, a school would be racially identifiable if it had more than 14.6% (12.65% plus 1.90%) or less than 10.8% (12.65% minus 1.90%) minority faculty staff. Rec. ex. vol. IV at 262. Applying this very tight standard is based on the theory that the school district has greater control over faculty staff assignments and that, insofar as possible, we should “get every school just like every other.” Rec. vol. V at 646, 650-51. Under this method, 22 out of 26 elementary schools are racially identifiable and 8 out of 9 secondary schools are racially identifiable. Rec. ex. vol. IV at 261-62.
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Id. Using this method, there are 14 out of 19 schools racially identifiable by faculty/staff assignment in 1985-86. This means that not all of the schools identified as racially identifiable by the court as to student assignment are racially identifiable as to faculty/staff assignment.
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Page 932
either race or ethnic group in any school if you can avoid it.”Id.
[311] The court tells us that the distinction between faculty and staff is important, but never comes to grips with what that distinction is. Court’s Opinion at 871-72. On the basis of absolute numbers, it appears that 167 minority employees are involved with the educational function (the first group above plus teacher aides) and 67 minority employees are involved with the service function. The strong implication of this court — that minorities are being hired merely for janitorial and service jobs — is not supported. Moreover, such an implication is inconsistent with the court’s observation that the current superintendent is black, as are several principals and managerial personnel. Court’s Opinion at 879. [312] The district court recognized that there was a “tendency to have more minority staff in schools with a greater than average minority student population,” yet after a careful review of all the evidence, decided that there was not a current condition of segregation with respect to staff assignment. Brown, 671 F. Supp. at 1305. In deciding that faculty/staff assignment remains segregated, Court’s Opinion at 872, this court has relied in part upon the extremes of the data to conclude there is an unlawful pattern. For example, in 1985-86, every elementary school had some minority staff, with the exception of McClure.[37] Only one elementary school had more than 7 minority faculty/staff, Avondale East at 10.45 faculty/staff members. Yet, that is the one the court uses to illustrate its apparent conclusion that there is a segregated system of faculty staff assignment at the elementary level. Court’s Opinion at 872 see also id. at 879. When one looks at the elementary data, it is apparent that a perfectly uniform distribution is unlikely given the lack of elementary minority personnel — there were 42 elementaryPage 933
classroom teachers and 74.50 minority faculty/staff members to be assigned to 26 elementary schools. Rec. ex. vol. IV at 261, 268.
[313] Likewise, the court compares Robinson Middle School with 12.20 minority staff members out of 49.35, not with other middle schools[38] , but with Topeka West High School which had 3 minority out of 120. Court’s Opinion at 872. Note that in 1984-85 Topeka West had almost three times the minority faculty/staff (8.55 out of 114.30) than it did in 1985-86. [314] Given the court’s interest in complete data which breaks out the professional staff that actually works in the particular schools, it is most surprising that the court’s opinion does not cite or discuss the minority staffing report for 1986-87 which finally includes administrative and certificated staff assigned to the schools. Rec. ex. vol. II at 160-61. Although admitted over plaintiffs’ objection, rec. vol. XVI at 2523-2525, this more current and more relevant report presents a far less extreme picture of minority assignment for the system. Every school in the system has minority personnel. With a 10.78% minority average for elementary school personnel (55 out of 510), elementary schools range from 4.35% minority staffing (Quincy) to 18.18% (Avondale East and Highland Park North).[39] More significant, because of thePage 934
small numbers involved, is that every elementary school has from one to four minority personnel. Rec. vol. II at 161.
[315] With a 13.22% minority average for middle school personnel (23 out of 174), schools range from 6.67% (Jardine) to 16.67% (Robinson).[40] Every school has from two to seven minority personnel. Finally, at the high school level there is a minority average of 9.77% for high school personnel, ranging from 5.88% (Topeka West) to 11.84% (Highland Park High).[41] The range is from five to eleven minority faculty members.D.
[316] The district court recognized that the “pattern identified by the plaintiffs is not monolithic.” Brown, 671 F. Supp. at 1305. And it is not. The numerical evidence on this point cuts both ways. But this court’s finding that this is “a system that has kept white faculty at primarily white schools and minority faculty at predominantly minority schools,” Court’s Opinion at 879, appears
Page 935
radical given these numbers. Moreover, I agree with the district court that “as important as the racial percentages of the faculty and staff is the fair assignment of qualified and dedicated faculty throughout the district.” Id.; see also Milliken v. Bradley (Milliken II), 433 U.S. 267, 280 n. 15, 97 S.Ct. 2749, 2757 n. 15 (one must not lose sight of educational function of schools). This is a school district that is applying the research concerning effective schools.[42] See U.S. Dep’t of Education, What Works-Research About Teaching and Learning
45 (1986) (“The most important characteristics of effective schools are strong instructional leadership, a safe and orderly climate, school-wide emphasis on basic skills, high teacher expectations for student achievement, and continuous assessment of pupil progress.”); rec. supp. vol. V at 1584-1608, 1635-36 (district has uniform curriculum guides), 1641-42, 1651-53, 1749; supp vol. VII at 2033; vol. XII at 2521-22. It is a system in which schools throughout the district have received outside recognition. Rec. supp. vol. V at 1617-18 (Highland Park H.S., 1984), 1619-20 (Topeka West H.S., 1985), 1620-21 (Eisenhower Middle School, 1985), 1622 (School District, 1986), 1623, (Topeka West H.S. — National School of Excellence, 1984; Robinson Middle School — National School of Excellence, 1985), 1624 (Bishop Elementary School — State Program of Excellence, 1986), 1732 (Head Start, 1974). Finally, the evidence clearly established that the Topeka schools are committed to an awareness of cultural diversity and equal educational opportunity for all. Rec. supp. vol. V at 1759, 1632, 1653-54, 1657-58, 1686, 1717, 1760-61, 1772-73; vol. XII at 2444-45. Ironically and commendably, this is a district that includes the study of Brown v. Board of Education in its curriculum. Rec. supp. vol. V at 1722.
VII.
[317] At trial, plaintiffs contended that eight schools were “racially identifiable nonwhite or vestige schools.” Brown, 671 F. Supp. at 1297. These included Eisenhower Middle School and seven elementary schools: Avondale East, Belvoir, Highland Park North, Hudson, Lafayette, Lowman Hill and Quinton Heights. The court has analyzed the latter six of these schools for “what the district did and did not do,” Court’s Opinion at 882, totally ignoring the district court’s findings and the de facto reasons for the racial composition of these schools. Court’s Opinion at 882-85. Part of the court’s analysis of these schools is contained in an earlier part of its opinion. See Court’s Opinion at 880 (discussing attendance boundaries of Lafayette, Quinton Heights and Lowman Hill). Appendix A contains the 1969-70 elementary school attendance boundaries; appendix B contains those for 1985-86.
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duty. Id. at 876-77, 882. Not so. Courts routinely have considered the presence or absence of demographic factors over which the school board had no control in deciding whether school systems were unitary. See, e.g., Morgan, 831 F.2d at 320
(system unitary; court considered racial concentration in court-drawn school districts); Lawrence, 799 F.2d at 1043 (“In Lawrence County, unlike the situation in Pasadena Board of Education, the School Board’s failure to achieve a desegregated school system has not resulted from population migration into, or out of, or within this small rural county.”); Ross, 699 F.2d at 226 (system unitary; current housing patterns after desegregation order resulted in several one-race schools). The rationale for this is best stated by this court in a passage concerning one-race schools:
[319] Court’s Opinion at 860, 860 n. 18. The above is equally applicable to schools which depart from the system-wide minority average — “they are not always unconstitutional” for they “may well have evolved for reasons beyond school board control.” Id. [320] Concerning these eight schools that the plaintiffs contend are “racially identifiable,” the district court found that “the schools are attended by more white students than black students (1,248 white students, 1,079 black students). Indeed, white students make up close to half (49.3%) of all the students that attend these allegedly non-white schools.” Brown, 671 F. Supp. at 1298. As the following reveals, there is no need for the appellate fact finding that is going on here, the district court’s finding that these schools do not reflect a current condition of unlawful segregation is not clearly erroneous; indeed, it is amply supported by the record and the weight of the evidence. Moreover, the district court’s factfinding is free of several errors which permeate the appellate factfinding.Although virtual one race schools “require close scrutiny,” they are not always unconstitutional.[18] [18] Given modern urban demography and geography, one-race schools may well have evolved for reasons beyond school board control. See Calhoun v. Cook, 522 F.2d 717, 719 (5th Cir. 1975). Thus, where a school system consists of de facto one-race schools, rather than de jure, the system is not unconstitutional.
A.
[321] Belvoir elementary was annexed in approximately 1959, thus plaintiffs cannot claim it was a vestige of the former de jure
system. Rec. supp. vol. XI at 148. This court attaches significance to the fact that Belvoir’s student population has not been less than 50% minority. Court’s Opinion at 882. Yet, the district court carefully explained why this does not create liability:
[322] Brown, 671 F. Supp. at 1300 (emphasis in original). The district court made further findings, which certainly are corroborated by the data on racial composition.[43] TheBelvoir Elementary School is centered in an area with a high minority population. It is surrounded by other schools with higher than average minority populations. It is not the black school in a racially mixed area. It is a school with a higher than average black student population in a residential area with a higher than average black population.
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district court’s findings also are supported by the defendants’ expert Dr. Clark, who analyzed Belvoir’s hypothetical racial composition, assuming its boundaries remained constant. Rec. ex. vol. I at 28, 34-35.
[323] The district court found that two federally subsidized housing projects constructed in 1963 (Pine Ridge; 210 family units) and in 1965 (Trail Ridge; 148 family units) caused the minority elementary student population to increase to over 50%. Brown, 671 F. Supp. at 1302; rec. ex. vol. IV at 215. Plaintiffs’ expert Mr. Lamson did not take these housing projects into account. Rec. vol. IV at 463. The district court also found that closing Rice Elementary in 1981 and reassigning some of those students to Belvoir improved the racial balance at Belvoir. Brown, 671 F. Supp. at 1302. This court characterizes the closing as having “a modest desegregative effect at Belvoir,” Court’s Opinion at 882, but the data reveal that the minority percentage dropped by approximately 13%. See supra note 43. The Belvoir attendance district now is largely minority and the changed racial mix in the school has been caused by actions other than those of the school board. See Higgins, 508 F.2d at 791 (“the law imposes no affirmative duty upon school officials to correct the effects of segregation resulting from factors over which they have no control”).B.
[324] This court’s complaint about Hudson Elementary is that “[w]hile the passage of time has dissipated Hudson’s identity as a white school, this change is due solely to the spread of minorities into its attendance area, not to any action by the school district.” Court’s Opinion at 882. It seems anomalous to find fault with the school board concerning residential movement which altered the original racial composition at Hudson. But it is consistent with this court’s view that residential patterns which detract from racial balance are always the responsibility of the school board, while residential migration which improves racial balance should not inure to the benefit of the school board insofar as liability is concerned. See Court’s Opinion at 863-64 (“A showing that the school district has not promoted segregation and has allowed desegregation to take place where natural forces worked to that end is insufficient.”). Following this logic, residential movement could lead to absolute racial balance and still support a finding of school board liability, especially given the court’s view that a school which approaches the system-wide minority average may still be racially identifiable.
Page 938
enrollment.[44] The boundaries of Hudson have not changed since 1964. Rec. ex. vol. IV at 13-29. The district court found that “the construction of subsidized housing projects in the Hudson attendance area” in 1965 (Colonial Townhouses; 137 family units), in 1967 (Highland Park Apartments; 200 family units) and in 1970 (Deer Creek; 92 family units), together “with the general increase of minority residents on the east side,” was responsible for the increase in minority enrollment at Hudson. Brown, 671 F. Supp. at 1302; rec. ex. vol. IV at 215. Plaintiff’s expert Mr. Lamson did not take into account the effect of any of these demographic changes. Rec. vol. IV at 464-65.
[326] Plaintiffs’ position concerning Hudson and Avondale is legally untenable. After conceding that the increased minority enrollment at Hudson and Avondale East is “purely [the] result of residential change,” plaintiffs continue:[327] Appellants’ Brief at 38. Plaintiffs’ position is not supported by the law or the facts. After two desegregation plans and over thirty years after Brown I and Brown II, it cannot be said that Topeka operates a de jure system. Apparently, plaintiffs’ conception of the duty imposed by the Supreme Court is never-ending. The Court, however, has declared to the contrary. In Swann, the Court recognized that once the constitutional violation is eliminated, school authorities are not “constitutionally required to make year-by-year adjustments of the racial composition of student bodies” even if the community experiences demographic changes. Swann, 402 U.S. at 31-32, 91 S.Ct. at 1283-84. Moreover, there is no requirement that every school in the district reflect the system-wide average minority enrollment, either before or after a finding of unitariness. See Pasadena, 427 U.S. at 434, 96 S.Ct. at 2703.In a de jure school system, the school board has the duty to react to residential change to ensure that no school becomes disproportionately Black. Swann, 402 U.S. at 14 [91 S.Ct. at 1275]. The failure of the Topeka School Board to prevent Hudson and Avondale East from becoming disproportionately Black is a constitutional violation.
C.
[328] Like Belvoir, Highland Park North Elementary was not part of the Topeka system in 1954. Instead it was annexed in
Page 939
1959, rec. vol. IV at 394, and is estimated to have had close to the system-wide average of minority students then.[45]
There has been a steady increase in minority students attending due to residential patterns. Brown, 671 F. Supp. at 1302. This court’s complaint is that when Parkdale closed in 1978, the “reassignment [of Parkdale students] increased Highland Park North’s minority percentage at a time when it was already high.” Court’s Opinion at 882. As the district court points out, however, the school board was able to close Parkdale, a predominantly black school (85.6% minority) while reassigning its students to a nearby school, Highland Park North. Brown, 671 F. Supp. at 1302. Moreover, as footnote 45 indicates, the increased minority percentage for 1978-79 was caused by two factors: an increase of 43 (170-127) minority students and a decrease of 21 (142-121) white students. Considering the court’s fleeting approach to some of these schools, see, e.g., Court’s Opinion at 882, it is unclear how the court’s observation trumps the district court’s reasoned analysis rejecting constitutional liability.
D.
[329] Lafayette Elementary began as an all-white de jure school Brown, 671 F. Supp. at 1302. It has increased in minority enrollment and has remained a majority-minority school, although the composition of the minority groups has varied over the years.[46] Id.
Page 940
(noting that minority composition was 56-59% over the last five years, with a varied composition). This court notes that federally subsidized housing projects were built in the area in the early 1960’s. Court’s Opinion at 883; rec. ex. vol. IV at 215 (1961-Eastboro Apts.; 28 family units; 1962-Eastboro Apts.; 76 family units). More units were built in 1970. Rec. ex. vol. IV at 215 (Ripley Park Apts., 102 family units).
[330] This court first looks to 1966 and reports the racial compositions of Lafayette’s neighboring schools (omitting Highland Park North). Court’s Opinion at 883. I have done the same in chart form comparing the minority percentages with the surrounding schools, in 1966 and now.The border between Lafayette and State Street, the school to Lafayette’s north, has functioned as the boundary between the mostly white area served by State Street and the school to its north [Lundgren] . . . and the schools to its south and southwest [Highland Park North and Belvoir]. Lafayette has long had twice the minority population of State Street; thus, since 1966, Lafayette’s minority population has ranged from 52% to 69% while State Street’s has ranged from 27% to 34%.
Page 941
[332] Id. (footnote omitted). This conclusion is remarkable not only because it is appellate factfinding concerning intent including non-compliance with the affirmative duty on “objective” facts that are far from obvious, but also because it ignores that the surrounding population of the Lundgren and State Street schools (as of 1980) had far less black concentration than did the surrounding population of Lafayette, Highland Park North and Belvoir. See rec. ex. vol. I at 49. Moreover, it conflicts with the district court’s finding on this point attributing the increased minority percentage to demographic factors, Brown, 671 F. Supp. at 1303, rather than a “segregative effect” of boundary changes by defendants. The district court’s finding is supported by common sense and the defendants’ expert, Dr. Clark See rec. ex. vol. I at 35, 43-45. [333] Once again, the district court’s findings make more sense than ours. Looking at the chart, see supra p. 940, it is apparent that Topeka closed two schools with greater and lesser minority concentrations than Lafayette. The district court noted that the closing of Parkdale resulted in the Lafayette minority percentage increasing by four percent (from 62% to 66%), Brown, 671 F. Supp. at 1302; however, the next year saw the percentage return to its prior level (from 66% to 62%), and decrease thereafter See supra note 42. The district court then thought that the closing of Rice, which resulted in reassignment of some students to Lafayette, may have contributed to the minority percentage decreasing in future years. Brown, 671 F. Supp. at 1302. Dr. Clark, defendants’ demographic expert, using residential population data which had a high correlation (.8 to .9 out of 1.0) with school attendance data, viewed the increased minority percentage at Lafayette as a result of demographic changes. He concluded that the closure of Parkdale, with respect to Lafayette, was overall desegregative. Rec. vol. XI at 2338, 2373, 2388-89; ex. vol. I at 35, 43, 45. [334] This court’s ultimate conclusion, that “[u]nder its neighborhood school plan, the school district simply maintained Lafayette as a school with disproportionate minority percentages,” Court’s Opinion at 883; see also id. at 880, ignores the demographic factors involved and implies that the school district had an obligation to racially balance Lafayette because it exceeded the system-wide minority percentage.E.
[335] Like Lafayette, Quinton Heights Elementary began as an all-white de jure school. Brown, 671 F. Supp. at 1303. The district court noted the steady increase in minority student population, and that the minority concentration has remained approximately 50% over the last several years.[47] Id. This
Page 942
court’s approach to analyzing the school has been to adopt the conclusion of plaintiffs’ expert contained in his report and testimony, while simplifying the analysis and not discussing the effect of allegedly segregative optional attendance zones, as did Mr. Lamson. See Court’s Opinion at 883; rec. vol. XI at 139-48, 173-78 (Lamson Report on Quinton Heights, School Closings), vol. III at 248-59 (Lamson testimony concerning Quinton Heights) (cited in Court’s Opinion at 883 n. 88), 284, 287, 290-93 (closure of Monroe and Polk and affect on Quinton Heights); see also Court’s Opinion at 874-75 (summarizing 1955-65 in Topeka system — “Plaintiffs introduced evidence tending to show that the school district’s use of portable classrooms and optional attendance zones served to maintain segregation by concentrating students of one race at certain schools.”). Of course, to adopt the full analysis with the discussion of optional attendance zones would conflict with the district court’s finding that “any segregative effect of the zones was slight and does not remain today.” Brown, 671 F. Supp. at 1298. The district court’s finding, which necessarily includes the optional attendance zones discussed by plaintiffs’ expert, is supported by the testimony and report of defendants’ expert Dr. Clark. Rec. vol. XI at 2304-05, 2309-10, 2318-19, 2321-22, 2327-28. Dr. Clark analyzed the effect of boundary changes in Topeka, including optional attendance zones. See supra note 30; see also rec. ex. vol. I at 19. But concerning school closings, the court has been convinced by the testimony of plaintiffs’ expert.
[336] Again, we track this court’s odyssey. The court begins by considering two closings: Pierce and Van Buren. In 1957, Pierce was annexed to the district; in 1958 the adjacent schools to the west with which it shared a common boundary were Quinton Heights and Monroe. Rec. supp. vol. XI at 140; rec. ex. vol. IV at 12. In 1958, the enrollment began to decline at Quinton Heights at an average rate of 21 students per year. Rec. supp. vol. XI at 142. In 1959, the 79 remaining black students at Pierce were assigned to three other elementary schools: Quinton Heights, Highland Park North, and Highland Park Central. Id. at 142. Plaintiffs’ expert admitted that what effect this had on the racial composition of Quinton Heights is not known. Id. at 143. Mr. Lamson also reported that during 1956-66 Quinton Heights lost white students while gaining black students. Id. at 142. [337] In 1962, the attendance boundary of Quinton Heights was expanded northward into what had been areas served by Van Buren and Central Park. Id. at 144; rec. vol. III at 251. This resulted in a gain of 45 students for Quinton Heights after it had lost an average of 21 students for the previous 4 years. Rec. supp. vol. XI at 144. Van Buren, however, still had an attendance area and continued to operate. In 1964, Van Buren was closed; most students were sent to Monroe; some were sent to Quinton Heights.[48] Rec. vol. III at 255; supp. vol. XI at 145-46.Page 943
[338] This court continues with the observation that by 1966 the minority percentage of Quinton Heights was 36.4% and certain schools surrounding Quinton Heights had greater and lesser concentrations of minority students. Court’s Opinion at 883. And so we continue. The following chart provides more detail.Page 944
Page 945
commenting about undesirable configuration of attendance area). Indeed, the presence of natural barriers in elementary attendance areas is hardly unique in this system. See rec. ex. vol. V at 225-228 (listing 20 elementary schools with natural barriers, e.g. institutional spaces, major thoroughfares, waterways, railroad tracks).
[346] The court’s earlier discussion of “peculiar-looking attendance boundaries” is peculiar in itself because, like the court’s subjective approach to map reading, the court of appeals has moved far beyond its review function into the realm of a trial court. Court’s Opinion at 880. Still, based on this untethered perception of “peculiarity,” the court declares that Quinton Heights’ current boundaries are segregative. Id. Put simply, the court seeks to overturn the district court’s factual finding that the attendance zones are not gerrymandered. Brown, 671 F. Supp. 1300. Notwithstanding the countless hours spent on this case by the panel, I remain firmly convinced that we have added very little to the district court’s amply supported findings. Admittedly, the evidence is not perfectly consistent and all in defendants’ favor. But it is not nearly so one-sided or in favor of the plaintiffs’ as this court apparently believes. The trial judge had a firm grip on the applicable law and a superb command of the facts in this complex case. We have done no better, even assuming that we were so empowered. F.
[347] Notwithstanding that Lowman Hill Elementary began as an all-white de jure school, this court finds that “[t]he school appears to have been designed and maintained as a school with a concentration of minority students.” Court’s Opinion at 884. The court begins by describing plaintiffs’ contention concerning optional attendance zones, see Appellants’ Brief at 13 n. 20; rec. supp. vol. XI at 96-98; vol. III at 235-41; however, it is unclear whether the court accepts those contentions, in light of the district court’s rejection of those same contentions. Court’s Opinion at 883-84; see Brown, 671 F. Supp. at 1298 (optional attendance zones (all eliminated in 1976) did not have significant segregative effect; any effect attenuated). The emphasis of this court seems to be on the inclusion of two areas that have greater concentrations of black residents[49] in the northwestern part of central Topeka, within the Lowman Hill attendance boundaries. The district court pointed out that these two areas “are closer to the Lowman Hill Schools than other schools in the area.” Brown, 671 F. Supp. at 1301. Indeed, that was the observation of defendants’ expert Dr. Clark.[50] Rec. vol. XI at 2344-45.
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[348] In 1959, a new and expanded Lowman Hill school was constructed which received black students from Buchanan. Rec. supp. vol. XI at 92. This increased Lowman Hill’s minority percentage to 49.63% by 1966, but the school has never had a majority-minority population.[51] Brown, 671 F. Supp. at 1301. The district court gave very close attention to this school and its relationship to surrounding schools. [349] This court mentions the closings of three surrounding schools and complains that these closings “did not affect the minority student percentage at Lowman Hill.” Court’s Opinion at 880. The court then provides the answer to “why not?” when it tells us that “the student population it [Lowman Hill] acquired was apparently of the same makeup as its existing population.” Id.at 884. The answer is not surprising when one compares the minority percentages of the schools that closed in relation to Lowman Hill.
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[350] Rec. ex. vol. IV at 86, 101, 105. The above chart indicates that the schools that were closed were very similar in minority concentration to Lowman Hill. If anything, the presence of racially similar neighboring schools that were ultimately closed undercuts the court’s finding that Lowman Hill is racially identifiable and used to concentrate minorities. [351] Looking at the neighboring schools and their racial composition in 1985 hardly compels the conclusion that Lowman Hill is racially identifiable.Perhaps if this court had de novo review, the panel majority would come to a different conclusion, but on these very mixed facts the district court’s call was certainly not clearly erroneous.
G.
[353] The court next shifts to “primarily white schools,” as racially identifiable. These apparently are schools which this court has determined should have greater minority enrollments, both in the past and the future.[52] Court’s Opinion at 884. These
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schools purportedly have an identity as “schools for white children,” id. at 884, which I suspect can only be changed to the court’s satisfaction by strict racial balancing, regardless of the de facto reasons for their current racial composition. The purpose of desegregation law is to wipe out the effects of the prior de jure system, not to eliminate every difference in racial composition between schools. See supra p. 909-11. Moreover, many of these schools have experienced increases in minority percentages as a result of residential movement Brown, 671 F. Supp. at 1303-04. Despite this court’s clear view that positive changes in racial composition due to demographic factors are not relevant to determining whether the vestiges of a prior de jure system remain, see Court’s Opinion at 874, 875, one would expect that a school district operating a dual system would have taken action to oppose or modify the effects of trends. That is not what has happened in Topeka. Brown, 671 F. Supp. at 1304.
[354] Concerning the location of new schools, this court makes the following statement which could give the wrong impression:[355] Court’s Opinion at 881; see also id. at 874-75. The judgment i Brown II was announced May 31, 1955. To be sure, numerous schools were opened in the western part of the district and had substantial white enrollments. The district court identified these as:All of the elementary schools and all but one of the secondary schools opened by the school district since Brown II were built in the white outer part of the district. Robinson middle school, which serves the central part of Topeka, is the sole exception. Furthermore, many of these schools were built near to the edges of the district.
[356] Brown, 671 F. Supp. at 1299; rec. supp. vol. XI at 194, 225. It should be added that Quinton Heights was replaced in 1954. Rec. supp. vol. XI at 40, 50. Thus, several schools which were not on the outer edge of Topeka were included in the district’s new school construction during and subsequent to the mid-50’s: Lowman Hill, 1959; Quinton Heights, 1954; Lafayette, 1956; Highland Park Central, 1965; Belvoir, 1967; Central Park, 1967. Brown, 671 F. Supp. at 1299; rec. supp. vol. XI at 40, 43, 50, 92, 166, 170. [357] Based on its erroneous finding that Topeka’s neighborhood school plan resulted only in the construction of schools for white children in the far reaches of the district, thereby increasing segregation, the court tells us that “[a] school district conscious of its constitutional duty would have attempted to counteract that effect.” Court’s Opinion at 881 (citing Diaz, 733 F.2d at 667-69); see also Court’s Opinion at 864 and 864 n. 31 (endorsing “castigation” approach). Althoug Diaz contains helpful language that a neighborhood school policy must be carefully analyzed as to application and enforcement before constitutional liability may be imposed, 733 F.2d at 664, the case is both legally and factually distinguishable. The duty of the school board in Diaz was different than that of these defendants; clearly established CaliforniaMcClure, Sheldon, McEachron, McCarter, Bishop and Hudson elementary schools, as well as Jardine [1961], Eisenhower [1961] and Landon Junior High Schools [1963] and Topeka West Senior High School [1961]. These schools were in areas of residential expansion. During the same period, new schools with mixed racial compositions replaced existing facilities at Lowman Hill, Lafayette, Highland Park Central, Central Park and Belvoir elementary schools.
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state law required affirmative action to relieve segregation, regardless of the cause. Diaz, 733 F.2d at 666-67. Moreover, according to the majority in Diaz, the board failed to consider state guidelines and rejected alternatives which would have enabled it to comply with its duty. Id. at 669. That is not what occurred here. Noticeably absent from the plaintiffs’ evidence is any complaint to the school board or the district court, when the school construction in question occurred.
[358] Finally, I come to Topeka West High School, built in 1961 and considered by the plaintiffs and the court[53] as “the quintessential example of deliberate channeling of white students to schools in the western part of the school district.” Court’s Opinion at 884; see also id. at 881 (plaintiffs/court finding “that Topeka deliberately placed new schools as far as possible from minority residential areas in order to polarize the district into white outer and minority inner schools.”). Once again, this court’s focus on “deliberate” conduct is inconsistent with its criticism of the district court for considering intent. Although this court criticizes the location of the school, which is near the western edge of the district, there were valid reasons, which have been discussed elsewhere, for placing the school in that location. See supra p. 916; see also Brown, 671 F. Supp. at 1300. The notion that Topeka West was built to channel white students from Topeka High, as contended by the plaintiffs, is not supported by the facts. In 1961, Topeka High was a winner of the prestigious Bellamy Award. Rec. vol. X at 1500. But it was overcrowded with 2,300 students. Rec. vol. IX at 1442-43. Topeka West opened with 700 students the first year, 900 the second, 1100 the third and continued to grow until 1969 when part of the attendance area was transferred back to Topeka High. Id. at 1434. Topeka High led high school enrollment totals for several years after the opening of Topeka West. Like Topeka High, Topeka West has won a prestigious award: Topeka West was designated a National School of Excellence recently, rec. supp. vol. V at 1622-23. Topeka West has had increased minority enrollment over the years as the western portion of Topeka becomes more residentially integrated.[54]Page 950
H.
[359] In addition to school openings, the court has undertaken to overturn the district court’s finding that, on the whole, school closings were “an integrative device.” Brown, 671 F. Supp. at 1299. Again, the court takes shelter in describing the plaintiffs’ contention: “that school closings of highly segregated schools were not desegregative in practice because the school district simply reassigned the students at those school en masse to a nearby school which then took over the segregated status of the school closed.” Court’s Opinion at 881; see also supra note 53. The court then adopts this as its finding: “The evidence supports this contention for the 1950s and 1960s.” Court’s Opinion at 881. Regarding the 1970’s on the whole, the court tells us that most closings were not segregative or desegregative. Id.
VIII.
[361] The district court recognized that the plaintiffs “hinge their case on this absence of racial balance in all schools and the failure of the defendants to promote racial balance.” Brown, 671 F. Supp. at 1295.
[362] Id. at 1309. Thereafter, the district court found that the present racial imbalance does not derive from “the de jureAt any time, more could have been done to achieve racial balance in the schools. But, it begs the issue of this case to argue that racial balancing must be done today because it was not done yesterday. More should be done to improve racial balance in the schools if the existing imbalance follows from defendants’ past intentional segregative conduct.
system or a foot-dragging segregationist policy.” Id. [363] In 1985-86, Topeka had no one-race or virtually one-race minority schools. Whether we look at percentages or absolute numbers, the district court was not clearly erroneous in deciding that the Topeka system was not currently segregated. Of 34 schools, only three had majority-minority populations. Brown, 671 F. Supp. at 1294. Those three schools (Belvoir, 146 minority students (ms); Lafayette, 217 ms; and Highland Park North, 179 ms) served 542 minority elementary students or one-quarter of the minority elementary population (2,141 ms). See rec. ex. vol. IV at 170, 171, 174; Court’s Opinion at 877. Five elementary schools (Crestview, 32 ms; Gage, 25 ms; McCarter, 35 ms; McClure, 23 ms; Potwin, 18 ms) had 90 + % white enrollment, yet they served 6.2% of the minority elementary population. Id. at 170, 172, 174. Two of the middle schools which are now combined (French, 241 white students (ws); and Landon, 205 ws) served 31 percent of the white middle school population (1,446 ws); while serving 6.95% of the minority middle school population (37 ms/532 ms). Id. at 175-176. At the high school level, Topeka West had a 90 + % white enrollment, serving 41.6% (1391 ws/3349 ws) of the white high school population, but also serving 11.48% (120 ms/1045 ms) of the minority high school population. Id. at 176-77. Though this court views the evidence differently, I submit that the district court’s finding is supported by these numbers, when considered on this record, and looking back to the prior years. See supra
text accompanying notes 9-13; see also supra note 18. [364] Although the court repeatedly tells us that racial balancing is not the objective, the court does acknowledge that “numbers are usually the focus of desegregation plans.” Court’s Opinion at 886; see also id. at 860. Without question, numbers resulting in better (strict) racial balance are the only remedy for what the court perceives as “schools that are now and always have been white, schools that are now and
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long have been heavily minority, and others.” Court’s Opinion at 886. The court seems to be leaning toward replication of the system-wide minority average in every school when it indicates that even compliance with a ± 15% standard for student assignment would be insufficient. Court’s Opinion at 885. In the words of this court:
[365] Id. at 885-86. (footnote omitted). The inherent nature of a ± 15% standard for student assignment means that some schools may vary by as much as 30%, though many probably will not. My research has not disclosed any court finding that compliance with a ± 15% standard as to student assignment was indicative of a current condition of segregation. [366] When one looks carefully at the most recent data we have on student assignment, see supra note 18, while considering the racial composition of this system (74% white), this court’s views are unique, given the wide distribution of minority students throughout the system and the absence of one-race minority schools. Indeed, several courts reviewing desegregation plans have given effect to the language in Swann that some “one-race, or virtually one-race, schools within a district [are] not in and of [themselves] the mark of a system that still practices segregation by law.” 402 U.S. at 26, 91 S.Ct. at 1281. See, e.g., Morgan, 831 F.2d at 323 (Boston system with majority-minority student enrollment unitary; there was “substantial degree of integration” despite several schools with 80% + enrollments of one race and several schools out of compliance with court-ordered desegregation plan); Calhoun v. Cook, 522 F.2d 717, 719 (5th Cir. 1975) (Atlanta system with 85% black enrollment unitary; 92/148 schools 90% + black); Ross v. Houston Indep. School Dist., 699 F.2d 218, 219, 226 (5th Cir. 1983) (Houston system with 74% minority enrollment unitary; 55/226 schools were 90% + black and 2 schools all white). I submit that the presence of some predominantly white schools in this system and three schools which have a slight majority of minority students does not violate the equal protection clause Washington, 426 U.S. at 240, 96 S.Ct. at 2047-48 (predominantly one-race schools not alone violative of equal protection). [367] Because the numbers are not indicative of a current condition of segregation, and the testimony relied upon by the district court supports the very opposite, it becomes necessary for the court to engage an unyielding presumption against the Topeka system from the outset. The court simply has jumped the gun in invoking the Keyes presumption to arrive at the preliminary and critical conclusion that there is a current condition of segregation in Topeka. Nowhere is this more evident than in footnote 61, Court’s Opinion at 873-74, when the court explains that its discussion of the current condition does not conflict with the district court’s conclusion that there is no unlawful segregation in Topeka. This court reasons that because the district court “did find the existence of racial disparities in school enrollment and staff/faculty assignment,” it should have immediately invoked a presumption against Topeka: “Our disagreement with the district court is chiefly on the significance of these findings in a district with Topeka’s history, and bearing the weight of a presumption against it which the district court failed to accord.” Court’s Opinion at 874 n. 61. This court’s understanding of the district court’s findings differs from mine. See supra p. 914-17. But even granting the comparatively small departure from perfect racial balance in this system, Topeka’s history is one factor, among many, that a court may consider in deciding whether the presumption should be invoked. “While that history of discrimination cannot and should not be ignored, it `cannot in the manner of original sin, condemn governmental action that is not itself unlawful.'” Riddick, 784 F.2d at 539 (quoting City ofDr. Foster also pointed out that such an approach would move schools now just beyond the 15% range to just within it, an improvement he did not find greatly desegregative as would preserve the existence of schools differing by as much as 30% in their minority percentage and thus still marked as minority or white schools.
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Mobile v. Bolden, 446 U.S. 55, 74, 100 S.Ct. 1490, 1503, 64 L.Ed.2d 47 (1980) (plurality opinion by Justice Stewart)). T require perpetual application of the presumption would mean that no school district which had a de jure system in 1954, could ever be free of the presumption and achieve unitary status. The requirement of a current condition of segregation resulting from past or present segregative intent (as opposed to segregation resulting from voluntary demographic change), prior to the operation of the presumption, allows a school system to redeem itself and, one day, be free of federal court supervision See Riddick, 784 F.2d at 538-39 (rejecting argument “that the Norfolk school board must continue to justify all of its actions because of the history of segregation.”). That day should come for U.S.D. 501 in Topeka.
[368] Alternatively, even if the presumption applies, the school board may adduce proof that the effects of past segregative intent have attenuated completely. Keyes, 413 U.S. at 211, 93 S.Ct. at 2699. This was recognized in Dayton II when the Court indicated that the Dayton school board “had failed to come forward with evidence to deny `that the current racial composition of the school population reflects the systemwide impact’ of the Board’s prior discriminatory conduct.” Id. 443 U.S. at 537-38, 99 S.Ct. at 2979-80 (quoting Brinkman, 583 F.2d at 258). Here, “the Board was given ample opportunity to counter the evidence of segregative purpose and current, systemwide impact,” Columbus, 443 U.S. at 467-68, 99 S.Ct. at 2951-52, and such evidence was credited by the district court. [369] In repeatedly castigating the defendants for noncompliance with the affirmative duty, the court relies upon the same incomplete approach that plaintiffs’ expert took — not considering regional and local migration and other demographic factors which necessarily influence school board decisions. See rec. vol. IV at 510-511. For example, the court criticizes the defendants for building new schools in the late 1950’s and 60’s to accommodate population growth in western Topeka and concludes that “the erection of so many schools devoted to educating white children had a significant segregative effect on the district.”[55]Court’s Opinion at 881. In arriving at this conclusion, the court apparently relies upon the following: “With respect to the new schools themselves, [the plaintiffs] argue that Topeka should have taken advantage of the underutilized inner schools; that is, that Topeka should have voluntarily bused white children from outer Topeka to the inner city schools instead of putting up new buildings.” Court’s Opinion at 881; see also rec. supp. vol. XI at 158-72 (Lamson theory). It is one thing to theorize that students could have been bused to a slightly underutilized seven grade (K-6) elementary school (e.g. Lowman Hill with an average of 43 spaces unused from 1957-66, or Quinton Heights with 28 spaces unused in 1966), but it is quite another to match the grade levels of spaces available each year with the grade levels of a hypothetical group that would be assigned to the school annually. See rec. vol. IV at 448-49 (underutilization analysis did not consider grade level of students); vol. X at 1538-41; supp. vol XI at 169. Moreover, this suggestion ignores the complaint that HEW had in 1974 concerning educating students in older schools. See supra p. 905. [370] Another of the administrative possibilities suggested by Mr. Lamson to improve racial balance would have been to combine Highland Park Central and Highland Park South in 1968, and build a school between the two. This proposal would have entailed abandoning two existing buildings with large enrollments, and the expense of building a new school. Rec. vol. X at 1475-76. The combined enrollment of the new school would have been 1,334 students, something which has never occurred in Topeka, and what deputy superintendent Henson thought was “too large an elementary school for this community or any community.” Id.; rec. vol. IV at 512-13; see
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also supp. vol. XI at 170. Moreover, in suggesting alternatives for the 1950’s and 1960’s decisions concerning elementary boundaries, some of these alternatives would have required busing and lunch provisions for students, but Mr. Lamson did not consider that the Topeka system lacked a hot lunch program until the mid-60’s. Rec. vol. IV at 443-448, 510; supp. vol. XI at 34-35, 56.
[371] Unfortunately, one could get the wrong impression concerning the board members’ attitude about desegregation. This court seems to fault the board members for not testifying that they regularly took desegregation concerns into account. Court’s Opinion at 878. I do not read their testimony as precluding such concerns. Mr. Dennis C. Payne, board member from 1957-65, explained that the neighborhood concept was in keeping with the desegregation required by Brown because, previously, black children were not allowed to attend the schools closest to their homes. Rec. vol. XII at 2417 (“So we felt the neighborhood concept was what everybody wanted and what we wanted.”). Mr. Payne testified to an absence of gerrymandering for racial segregation. Id. He also testified that he was aware of white flight due to the original four step plan and adherence to the neighborhood school plan. This court quotes his response: “What could we do? We can’t make people move, no way.” Id. at 2423 (quoted in Court’s Opinion at 878). Considering the time period to which this statement refers, and the school district’s then-recent adoption of a plan which met with the approval of this court, I would suggest that the school board could not prohibit people from moving, although perhaps it could have changed the consequences of a move with respect to school assignment. Cf. Ross, 699 F.2d at 225 (when district has successfully implemented plan to achieve unitary status, there is “no affirmative fourteenth amendment duty to respond to the private actions of those who vote with their feet”). [372] Mr. Joe Douglas, Jr., the fire chief of the City of Topeka, and a board member from 1977-85 (board president for two years), testified that he and the other black member of the board opposed the open enrollment plan, which was adopted due to pressure from working parents who wanted their children to attend schools close to day care arrangements. Rec. vol. XII at 2441; see Court’s Opinion at 878 n. 81. The plan was soon discontinued because of its effect on minority percentages. Rec. vol. XII at 2442-43. It was replaced by a majority to minority transfer plan.[56] Id.at 2443-44; Brown, 671 F. Supp. at 1298. While he was on the board, Mr. Douglas advocated that no school in the district should exceed 50% minority, but the fact that some schools exceeded that percentage was not indicative of segregation, which he termed “as in the eye of the beholder.” Rec. vol. XII at 2454-55. Contrary to the court’s assertion that board members did not consider desegregation concerns, Mr. Douglas testified that the school board that he served on “took as a priority the lowering of minority percentages.”[57] See Court’s Opinion at
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878; rec. vol. XII at 2456. The current superintendent of schools, Dr. Edwards, supported the commitment to improve the racial composition of the schools. Rec. vol. XII at 2530.
[373] During trial, there was testimony about concerns identified by the National Commission on Excellence in Education which prepare A Nation at Risk. Rec. supp. vol. VII at 1996-99. The Commission emphasized that improved education is essential not only to assure that the United States will remain competitive internationally, but also to assure “the intellectual, moral and spiritual strengths of our people which knit together the very fabric of our society.” National Commission on Excellence in Education, A Nation at Risk: The Imperative For Educational Reform, at 7. It appears that Topeka has heeded the call to provide “all, regardless of race or class or economic status, . . . a fair chance and . . . the tools for developing their individual powers of mind and spirit to the utmost,” for “individuals in our society who do not possess the levels of skill literacy, and training essential to this new era will be effectively disenfranchised, not simply from the material rewards that accompany competent performance, but also from the chance to participate fully in our national life.” A Nation at Risk at 4, 7. “No person of goodwill toward his fellow man can logically argue” with the naturally correct premise of Brown I: equal educational opportunity in a unitary system for all children regardless of race. Keyes v. School Dist. No. 1, 521 F.2d 465, 490 (10th Cir. 1975) (Barrett, J., concurring), cert. denied, 423 U.S. 1066, 96 S.Ct. 806, 46 L.Ed.2d 657 (1976). But neither this court’s opinion nor the record convinces me that the equal opportunity and benefits provided to all by Topeka’s neighborhood schools will be improved by the protracted federal court supervision which is sure to follow at the expense of valued local control.[58] See Milliken I, 418 U.S. at 741, 94 S.Ct. at 3125 (recognizing virtues of local control of public education). [374] Like the district court, I do not think that the constitutional command to eliminate the dual system goes unheeded 35, or even 30, years after Brown I. Within that time, tremendous demographic and social change has affected Topeka and its school system. The school board has demonstrated concern for improving the racial composition in the Topeka schools while retaining the neighborhood school concept. In some cases, the two are not compatible, but in this system substantial integration has been achieved, and the system is now unitary, although not perfect. Because I am not persuaded of a remaining constitutional violation, and I am persuaded that the appellate court has retried the case for a different outcome, IPage 955
would affirm the district court’s judgment declaring the Topeka system unitary at last.[59] Brown, 671 F. Supp. at 1311.
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[375] [EDITORS’ NOTE: APPENDIX A IS ELECTRONICALLY NON-TRANSFERRABLE.]Page 957
[376] [EDITORS’ NOTE: APPENDIX B IS ELECTRONICALLY NON-TRANSFERRABLE.]While the district court acknowledged that segregation may continue of its own inertia, id. (quoting Brown v. Board of Educ., 671 F. Supp. 1290, 1296 (D.Kan. 1987)), the district court specifically found that segregation had not so continued in this school district, rather “the effects of de jure
segregation have been substantially countered.” Brown, 671 F. Supp. at 1296.
De jure (“by law”) segregation is racial separation which is the product of some purposeful act by governmental authorities. De facto (“by the facts”) segregation occurs because of housing and migration patterns and is unconnected to any purposeful governmental action to racially segregate schools.
2 R. Rotunda, J. Nowak J. Young, Treatise on Constitutional Law § 18.9 at 413 (1986); see also Keyes v. School Dist. No. 1, 413 U.S. 189, 208, 93 S.Ct. 2686, 2697, 37 L.Ed.2d 548
(1973); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 17-18, 91 S.Ct. 1267, 1276-77, 28 L.Ed.2d 554 (1971). De jure segregation violates the equal protection clause, but “if a school district becomes unintentionally (de facto) segregated, there is no constitutional violation.” R. Rotunda, J. Nowak J. Young, supra, at 413.
44.6% of the students were black, 47 out of 68 schools were virtually one race (22 black and 25 white). Dayton II, 443 U.S. at 529-30, n. 1, 99 S.Ct. at 2974-75 n. 1. This pattern of one-race schools in a system that was almost evenly composed of white and black students was present in 1951-52, 1963-64 and 1971-72. Id. at 537, 99 S.Ct. at 2979.
(D.Kan. 1979).
the board drew boundaries for the 1955-56 school year which corresponded precisely with the previously segregated system Id. at 1255-56. These “superimposed” attendance zones were designed to maintain racial segregation, and were hardly neutral. Moreover, the neighborhood system was inconsistent with its stated objectives. Id. at 1256, 1259.
In United States v. Board of Educ. (Tulsa II), 459 F.2d 720
(10th Cir. 1972) (Lewis, C.J.), vacated, 413 U.S. 916, 93 S.Ct. 3048, 37 L.Ed.2d 1038 (1973), the court made it clear that it did not intend to change the rule in this circuit concerning neighborhood schools. The court cited Tulsa I and other Tenth Circuit cases for the following proposition:
The law of this circuit has been consistently stated by the court to be that neighborhood school plans, when impartially maintained and administered, do not violate constitutional rights even though the result of such plans is racial imbalance.
Id. at 724. Of course, Tulsa II was vacated for reconsideration in light of the Keyes presumption which held that “a finding of intentionally segregative school board actions in a meaningful portion of a school system . . . creates a presumption that other segregated schooling within the system is not adventitious.” Keyes, 413 U.S. at 208, 93 S.Ct. at 2697. Racial imbalance in a neighborhood school plan does not in and of itself support a constitutional violation. Indeed, the Court has consistently refused to consider whether racial imbalance inherent in a neighborhood school policy will support a constitutional violation in the absence of a finding of curren de jure segregation in some part of the school system. Keyes, 413 U.S. at 212, 93 S.Ct. at 2699; Swann, 402 U.S. at 23, 91 S.Ct. at 1279.
In Dowell v. Board of Educ., 890 F.2d 1483, 1487, 1487 n. 2, 1493, 1497, 1502 (10th Cir. 1989), this court declined to aggregate the number of minority students of different races for purposes of analyzing the racial composition of the Oklahoma City elementary schools. See id. dissent at 1509-13 (Baldock, J., dissenting) (arguing that aggregation appropriate). The Supreme Court has indicated that minority groups should be treated together for the purpose of applying desegregation law. See Keyes, 413 U.S. at 195-98, 93 S.Ct. at 2690-92. Thus, the court’s approach to aggregation in this case is consistent with Supreme Court authority, but inconsistent with our own precedent in Dowell.
It is very difficult to be able to satisfy all wishes of the patrons of the district. I think about all a Board Member can do is attempt to weigh the interests of each individual, not only the students or parents of a district but also other people that live in the city, taxpayers, perhaps those who are on limited incomes and try to arrive at a decision which is as acceptable as possible.
Rec. ex. vol. II at 97. Mr. Stratton testified on behalf of the school board in this trial. Rec. vol. XII at 2482.
(1975), the district court decided that a ± 15% variation from the system-wide average, which would result in schools less than 33.5% or more than 63.5% black being “racially identifiable,” was “highly artificial.” Id. Certain schools which were “racially identifiable” under the formula were nonetheless approved. Thus, the factors the court cites, “demography, geography, and the individual history of particular schools and areas of the city,” Court’s Opinion at 861, often have been used to narrow constitutional liability, not expand it.
This court also cites United States v. Lawrence County School Dist., 799 F.2d 1031 (5th Cir. 1986), which appears to have decided as a matter of law that residential racial separation is generally a product of past segregated schools. See id. at 1043-44. This approach was criticized by Judge Higginbotham in his concurring and dissenting opinion in Lawrence. Id. at 1052-1060 (Higginbotham, J., concurring and dissenting).
“Where numbers alone are insufficient to define racially identifiable schools,” Court’s Opinion at 861, there probably is not constitutional liability when it comes to student assignment. But, the court’s opinion seems to say that, even in the absence of one-race schools or schools which are “racially identifiable” given some numerical standard, there still may be an unlawful condition of segregation given “demography, geography and the individual history of particular schools and areas of the city.”Id.
to determine whether it conveys a symbolic message to which the culture attaches racial significance. A finding that the culture thinks of an allegedly discriminatory governmental action in racial terms would also constitute a finding regarding the beliefs and motivations of the governmental actors: The actors are themselves part of the culture and presumably could not have acted without being influenced by racial considerations, even if they are unaware of their racist beliefs. Therefore, the court would apply strict scrutiny.
Id. at 324; see also id. at 355-56. The author does discuss the lack of judicial restraint such a proposal involves, but is not dissuaded: “In short, it would not be a bad thing for judges to base constitutional decisions on their own sense of what values best reflect our cultural tradition, so long as the conflicting perspectives competing to define those values are made explicit.” Id. at 386; see also id. at 381-87.
(finding high levels of integration based on dissimilarity index and exposure index).
The overall conclusion of this analysis of population growth, its geographic dispersal over time and the attendance boundary analysis is that the major force driving the system of change in the Topeka school system was the demographic process and not the changes in attendance areas. The changes in school enrollment were due to the changing growth rates of the white and black populations and to their geographic locations and not to the year to year attendance are shifts. Even the analysis of the optional zones in the earlier years had only minimal impact on the percent black in the attendance areas. Indeed focusing on the last dozen years the school district has made changes which have provided real evidence of desegregative or neutral impacts. Given the declining white population and the increasing black population, the imbalances which exist are the result of the demographic forces and not the result of boundary changes.
Rec. ex. vol. I at 45; accord vol. XI at 2338-39. Although plaintiffs contended that the study, by beginning with 1963-64 boundaries, did not take into account any segregative effects remaining in those boundaries, the point of the study was to identify the role of demographic transition. Rec. vol. XI at 2359.
(6th Cir. 1983).
Mr. Hansen: But this is an example where on visual analysis the boundaries were drawn in such a way — from visual analysis the boundary [sic] were drawn in such a way as to incorporate virtually all the black people in that part of town into one school in that part of town. Isn’t that right?
Dr. Clark: No, I don’t think they were drawn to incorporate all the black people in that part of town. There are areas of yellow [indicating lesser concentrations of black residents] that are outside that. But the boundaries of those school districts are in place; and yes, they have substantial numbers of black people. As I said earlier in the direct testimony, I took all those areas which were substantially black, and under racial transition for more detailed analysis.
Rec. vol. XI at 2345 (emphasis added). Taken in context and without the benefit of the court’s creative editing, e.g. changing “are” to “were,” the above is hardly the admission that the court would cast it to be. But this court’s approach to Dr. Clark’s testimony has not been one of balance. See, e.g.,
Court’s Opinion at 875 (out of 8 potentially segregative cases concerning boundary changes, Dr. Clark concludes that all are “overall desegregative or generated by demographic trends,” rec. ex. vol. I at 43, yet this court discusses the one case concerning a now-closed school which could be considered partly demographic and partly segregative).
Regarding Potwin:
The district court noted that schools with low minority percentages located in the western part of the district are expected to increase in minority enrollment if current trends continue. Brown, 671 F. Supp. at 1303-04.
Court’s Opinion at 884 (“The feasibility of further measures was not a focus of this case, and there was little evidence on this question.”).
Mr. McAtee: The fact that that goal has not yet been achieved or does not exist today in this district, Mr. Douglas, is that an indication to you that actions of this Board of Education present and past or inactions of the Board of Education present and past have been undertaken with an intent to achieve a segregative effect?
Mr. Douglas: I certainly do not believe that and I have no knowledge of any such actions or inactions by the board. I certainly believe at this particular point in time that this district is not in noncompliance or is outside the law and I don’t really feel that the district needs the ACLU or anyone else to mandate any directives as to what should be done in this district and that includes, if I may say so respectfully, this court. I think that the board has clearly exhibited, at least I know for the eight years that I was there and in looking at and listening to what had happened previously, it certainly is indicative to me that the board has faced up to the problem and one of the kinds of things that they feel that they could do. I don’t think that anything is perfect. I’m certainly not perfect, but I don’t think I want to throw me away or I’m not going to go have myself made over because I’m not perfect. I hope that I have a little time to continue to improve myself and that’s the same way that I see the district and with all of the problems that are facing education today, there’s an old adage that I think is really appropriate for this particular situation. It goes, while standing knee deep in alligators, it is sometimes difficult to remember that your original reason for being there was to drain the swamp, and if you serve on a Board of Education today with all the myriad of problems that comes before you, I think it’s commendable that this board has taken as a priority, at least the board that I was on, took as a priority the lowering of minority percentages and the monitoring of those situations that could cause those problems.
Rec. vol. XII at 2455-56.
J. Hochschild, The New American Dilemma-Liberal Democracy and School Desegregation 70-79 (1984); L. Hughes, W. Gordon L. Hillman, Desegregating America’s Schools 17-20 (1980).
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