Brown v. Board of Education Brief for Plaintiffs

    UNITED STATES COURT OF APPEALS 

FOR THE 'TENTH CIRCUIT

F I L E D
United States Court of Appeals 

Tenth Circuit

OLIVER BROWN, et al., )
)

Plaintiffs, )
)

and )
)

CHARLES SMITH and KIMBERLY SMITH, )
Minor Children, By Their Mother )
And Next Friend, LINDA BROWN )
SMITH, et al., )

)
Intervening Plaintiffs/ )
Appellants, )

)
v. )

)
BOARD OF EDUCATION OF TOPEKA, )
SHAWNEE COUNTY, KANSAS, et al., )

)
Defendants, )

)
and )

)
UNIFIED SCHOOL DISTRICT #501, )
Shawnee County Kansas, et al., )

)
Defendants-Appellees. )

JtIM 0 2 1989

ROBERT L. HDECKER 
Clerk

No. 87-1668

Appeal from the United States District Court 
for the District of Kansas 

(D.C. No. T-316)

Christopher A. Hansen (Richard Jones, Charles Scott, Sr., Charles 
Scott, Jr., and Joseph Johnson with him on the brief), American 
Civil Liberties Union Foundation, for Plaintiffs-Appellants.

Dan Biles, of Gates & Clyde, Overland Park, Kansas, Carl 
Gallagher, Assistant Attorney General (Robert T. Stephan, Attorney 
General with him on the brief), Topeka, Kansas, 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, 
Kansas for Defendants-Appellees.

Before MCKAY, SEYMOUR, and BALDOCK, Circuit Judges.

SEYMOUR, Circuit Judge.



"[0]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 Education, 349 U.S. 294 (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. *

x Statement by Dr. William Lamson during trial. Rec., vol. II, 
at 162-63.

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LEGAL HISTORY

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 Education, 114 P.2d 313 

(Kan. 19-41) (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 Education, 347 U.S. 483 

(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.

The Topeka Board of Education did not wait for the decision 

in Brown I before taking steps towards desegregating Topeka's 

elementary schools. It began that process in 1953 by permitting 

black students to attend two formerly all-white schools. It then 

gradually increased the number of schools black students might 

attend. Accordingly, when the Supreme Court considered the 

question of the relief appropriate in school desegregation cases, 

it noted that "substantial progress" had already been made in

I .

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Topeka. ■ Brown v. Board of Education, 349 U.S. 294, 299 (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 Education, 139 F. Supp. 468, 470 (1955). The 

court retained jurisdiction of the case, and the decision was not 

appealed.

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 noncomplying 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

z Section 601 states:

"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. S 200d (1982). The Topeka school district received 
federal funds through the Kansas State Department of Education.

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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 Education, 

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.

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.-* See Brown, 84 

F.R.D. 383. A long discovery and motion stage followed the 

granting of the intervenors' motion.

Trial took place in October 1986. The court found the Topeka 

school district to be an integrated, unitary school system. Brown 

v. Board of Education, 671 F. Supp. 1290 (D. Kan. 1987). The 

court also held that the Topeka school district had not violated

Linda Brown, a child named plaintiff in the original suit, is 
now the mother of two intervening child plaintiffs.

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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.

BRIEF FACTUAL HISTORY

A. Population Change

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.

The distribution of Topeka's population has changed more 

significantly than its composition. In general, the outer parts 

of Topeka, particularly on the western side, have grown 

considerably in population, while the inner city has declined. 

Until 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.

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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.

B. Elementary Schools

In 1951, four Topeka elementary schools were reserved for 

black children. 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.

During the late 1950s, the school district acquired by 

annexation the Avondale (outer Topeka, south) and Highland Park

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(middle and outer Topeka, east) school districts as well as other 

territory on the edges of the district. Existing schools within 

the acquired area were either primarily white or primarily black. 

As school enrollments grew and the population began to shift, the 

school district began to close elementary schools in the inner 

part of the city and open them in the rapidly growing outer part 

of the city. Three of the closed schools were former de jure 

black schools (McKinley, Buchanan, and Washington). The new 

schools were built in the newly acquired white areas and opened 

with all or virtually all white students.

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.4

4 Rec., ex. vol. IV, at 54-56. The record on appeal consists 
of pleadings, transcripts, and exhibits. We cite them 
respectively as "Rec., doc. #," "Rec., vol. #," and "Rec., ex. 
vol. #".

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A second major reorganization of the elementary schools took

place in the late 1970s, under the plan approved by HEW. 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 

elementary schools.5 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%.6

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,

Lyman elementary school had been deannexed in 1967. Rec., 
vol• III, at 281.

6 Rec., ex. vol. IV, at 134-38.

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the lowest percentage of minority students in any school was 7.2% 

(McClure).7

C. Secondary Schools

In 1954, the Topeka school district operated six junior high 

schools 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).®

7
Percentage of Minority Students 

In Topeka Elementary Schools In 1985

School % School %

Avondale East 44.1 Lundgren 15.8
Avondale West 16.6 McCarter 9.2
Belvoir 61.9 McClure 7.2
Bishop 10.5 McEachron 10.3
Crestview 8.9 Potwin 7.7
Gage 9.4 Quincy 20.5
Highland Park Central 35.1 Quinton Heights 49.4
Highland Park North 57.9 Randolph 14.8
Highland Park South 28 Shaner 20.7
Hudson 46.55 State Street 26.3
Lafayette 56.8 Stout 26.8
Linn 29.4 Sumner 31.5
Lowraan Hill 41.9 Whitson 10.2

27.2% of all elementary students in 1985 were minorities.

Source: Rec., ex. vol. IV, at 170-74.

8 Rec., vol. Ill, at 306-07. Plaintiffs' expert Lamson used 
the figures for black rather than minority students in his 
analysis and testimony. Where we repeat his figures, we therefore 
refer to black students and white students. We also refer to 
black students when we discuss pre-1966 numbers, as it is only in 
that year that figures begin to be available for minority students

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_ During the late 1950sjrearly 1960s period of annexations and 

building, two junior high schools joined the school system, and 

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.

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.* 9 

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.

generally. Otherwise we refer to minority students. See Keyes v. 
School Dist. No. 1 , 413 U.S. 189, 197 (1973). The parties are in 
agreement that the difference in analysis between black students 
and minority students is not significant in this case. Rec., vol. 
IV, at 409-10; rec., vol. V, at 598, 602-03.

9 Rec., ex. vol. II, at 56-57.

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The reorganization of the late 1970s under the HEW-approved 

plan 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. None 

were 50+% minority. 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.10 The 

percentage of minority students at the three high schools was 

39.8% (Highland Park), 32.5% (Topeka High), and 5.25% (Topeka

10
Percentage of Minority Students 

In Topeka Secondary Schools in 1985

Middle Schools % High Schools_________ %

Chase 33.4
Eisenhower 48.7
French 6.2
Jardine 17.3
Landon* 9.3
Robinson 28.5

Highland Park 33.6 
Topeka High 30.9 
Topeka West 7.9

The percentage of minority students in all middle schools was 
26.9%, while the minority percentage at the high school level was 
23.8%.

Source: Rec., ex. vol. IV, at 175-77.

*Landon is now closed.

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West) in 1981, and 33.6% (Highland Park), 30.9% (Topeka High), and 

7.9% (Topeka West) in 1985.

III.

THE PARTIES

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 

considerably from those of its predecessor. Id.; Brief for 

Individually-Named Defendants Associated with the State Board of 

Education at 1, 3-4.

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IV.

GENERAL PRINCIPLES OF UNITARINESS

Unitariness is a finding of fact reviewed under the clearly 

erroneous standard.^ Before we assess the status of school 

desegregation in Topeka, we set forth the principles that guide 

our consideration of the unitariness issue.

The district court defined a unitary school system as "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" the school district. 671 F. 

Supp. at 1293. These are necessary ingredients in a unitariness 

determination, because once a violation is found, H[t]he Board has 

. . . an affirmative responsibility to see that pupil [and 

faculty] assignment policies and school construction and 

abandonment practices 'are not used and do not serve to perpetuate 

or re-establish the dual school system.'" Dayton Board of 

Education v. Brinkman, 443 U.S. 526, 538 (1979) (Dayton II) 

(quoting Columbus Board of Education v. Penick, 443 U.S. 449, 460 

1979). An additional essential requirement of unitariness, 11

11 See, e .q . , Riddick v. School Bd. of the City of Norfolk, 784 
F .2d 521, 533 (4th Cir.), cert, denied, 107 S. C t . 420 (1986); 
United States v. Texas Educ. Agency, 647 F.2d 504, 506 (5th Cir. 
1981), cert, denied, 454 U.S. 1143 (1982); cf. Dayton Bd. of Educ. 
v. Brinkman, 443 U.S. 526, 534 & n.8 (1979) (whether school 
district is intentionally operating a dual school system is a 
question of fact).

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however, is whether "school authorities [have made] every effort 

.to achieve the greatest possible degree of actual desegregation, 

taking into account the practicalities of the situation." Davis

v. Board of School Commissioners, 402 U.S. 33, 37 (1971).

I

To determine whether a school district has become unitary, 

therefore, a court must consider what the school district has done 

or not done to fulfill its affirmative duty to desegregate, the 

current effects of those actions or inactions, and the extent to 

which further desegregation is feasible.* 13 After a plaintiff 

establishes intentional segregation at some point in the past and 

a current condition of segregation, a defendant then bears the 

burden of proving that its past acts have eliminated all traces of 

past intentional segregation to the maximum feasible extent.

A. Current Condition of Segregation

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

See also Swann v. Charlotte-Mecklenburq Bd. of. Educ., 402
D.S. 1, 26 (1971); Morqan v. Nucci, 831 F.2d 313, 322-25 (1st Cir. 
1987).

13 C f . Morqan, 831 F.2d at 319 (considering number of one-race 
or racially identifiable schools, good faith on the part of the 
school district, and maximum practicable desegregation); Ross v. 
Houston Indep. School Dist., 699 F.2d 218, 227 (5th Cir. 1983) 
(considering conditions in district, accomplishments to date, and 
feasibility of further measures).

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existence of a current condition of segregation. The case law is 

decidedly unclear as to the precise meaning of that term.14 In 

our view, a plaintiff 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.

Although virtual one-race schools "require close scrutiny," 

they are not always unconstitutional.1  ̂ Swann v. Charlotte- 

Mecklenburq Board of Education, 402 D.S. 1, 26 (1971). Their

The 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 this issue. See Dayton II, 443 D.S. 
at 529 (Dayton public schools "highly segregated by race"); Wright 
v. Council of City of Emporia, 407 U.S. 451, 455 (1972) (complete 
segregation); Swann, 402 U.S. at 24 (no challenge to finding of 
prior dual system); Green v. County School Bd, of Educ., 391 U.S. 
430, 435 (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).

15 Given modern urban demography and geography, one-race schools 
may well have evolved for reasons beyond school board control.
See, e .g ., Stout v. Jefferson County Bd. of Educ., 537 F.2d 800, 
803 (5th Cir^ 1976); Calhoun v. Cook, 522 F.2d 717, 719 (5th Cir. 
1975) .

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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.

Courts have used various standards to define "one-race 

schools."15 * Standards may appropriately differ from school 

district to school district because the percentage of minority 

students may likewise vary.17 18 * * 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. °

ib See Morgan, 831 F.2d at 320 (listing standards ranging from 
70% to 90% and declining to decide whether 80% or 90% is more 
appropriate for Boston); Tasby v. Wright, 713 F.2d 90, 91 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.

17 See Morgan v. Nucci, 831 F.2d 313, 320 n.7 (1st Cir. 1987)
(rejecting 75% standard in district 72% black); Castaneda v. 
Pickard, 781 F.2d 456, 461 (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).

18 See Dayton II, 443 U.S. at 529 n.l; Milliken v. Bradley, 418
U.S. 717, 726 (1974); Ross, 699 F.2d at 226; Lee v. Macon County
Bd. of Educ., 616 F.2d 805, 808-09 (5th Cir. 1980).

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Moreover, this is true whether the students at the school in 

question are white or minority.^

Where racial imbalance in student assignment is still extreme 

in a system that formerly mandated segregation, appellate courts 

have reversed findings of unitariness without looking to other 

factors.20 However, no particular degree of racial balance is 

required by the Constitution.21 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.

Where numbers alone are insufficient to define racially 

identifable schools, courts look to demography, geography, and the 

individual history of particular schools and areas of the city.22

See Morqan, 831 F.2d at 320; Tasby, 713 F.2d at 91 n.2; Ross, 
699 fTIH at 226; Price, 694 F.2d at 364; Stout, 537 F.2d at 802.

20 See Texas Educ. Agency, 647 F.2d at 508; c f . Lee v.
Tuscaloosa City School System, 576 F.2d 39 (5th Cir.) (per 
curiam), cert, denied, 439 U.S. 1007 (1978); United States v.
Board of Educ. of Valdosta, Ga., 576 F.2d 37 (5th Cir.) (per 
curiam) cert, denied  ̂ 439 U.S. 1007 (1978); Carr v. Montgomery 
County Bd. of Educ.~ 377 F.Supp. 1123, 1134 (M.D. Ala. 1974), 
aff'd, 511 F.2d 1374 (5th Cir.) (per curiam), cert, denied, 423 
U.S. 986 (1975)..

21 See Milliken v. Bradley, 433 CJ.S. 267, 280 n.14 (1977); 
Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 434 (1976);
Swann, 402 U.S. at 24-26.

22 See Morgan, 831 F.2d at 320 (noting difficulty of further 
desegregating schools located in geographically isolated or 
heavily black sections of Boston); Price, 694 F.2d at 347-68 
(authoritatively demonstrating that degree of racial balance is

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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 D.S. at 18. J 

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.

B. The School District's Burden

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 *

only one of many factors to be considered); Stout, 537 F.2d 800 
(affirming remedy leaving three schools one-race because of 
geographic isolation and barriers); c f . Carr, 377 F. Supp. at 1141 
(criticizing formulas for determining racial balance as "highly 
artificial" and severely disruptive).

^  See Keyes v. School Dist. No. 1 , 413 D.S. 189, 196 (1973) 
(what is a segregated school depends on facts of the particular 
case; faculty and staff percentages and community and 
administrative attitudes as well as racial composition of student 
body are relevant); Price, 694 F.2d at 347-68; United States v. 
Lawrence County School Dist., 799 F.2d 1031, 1039-40 (5 th Cir. 
1986) (looking to student and faculty percentages and history and 
location of school).

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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. Dayton II, 443 U.S. 

at 538. 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 firm 

commitment to desegregation, where it is not accompanied by action 

that in fact produces a unified school district. Id.

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." School 

Board of the City of Richmond v. Baliles, 829 F.2d 1308, 1311 (4th 

Cir. 1987).24 This presumption ensures that subconscious racial 

discrimination does not perpetuate the denial of equal protection 

to our nation's school children.25 A focus on provable intent 

alone would deny a remedy to too many Americans.

See Keyes, 413 U.S. at 211; Vaughns v. Board of Educ., 758 
F .2d 983, 991 (4th Cir. 1985).

25 As one commentator has observed, "[A]mericans share a 
historical experience that has resulted in individuals within the 
culture ubiquitously attaching a significance to race that is 
irrational and often outside their awareness." Lawrence, The Id, 
the Ego, and Equal Protection: Reckoning With Unconscious Racism,
39 Stan. L. Rev. 317, 327 (1987).

-20-



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; Keyes v. School District No. 1 , 413 O.S. 189, 210-11 

(1973). The passage of time merely presents an opportunity for a 

school district to show that the presumptive relationship between 

the de jure system and the current system is so attenuated that 

there is no causal connection. See id. at 211.

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 and has allowed desegregation to take place where 

natural forces worked to that end is insufficient.

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. ^  While a district 

is not always required to choose the most desegregative *

See Wright v. Council of City of Emporia, 407 U.S. 451, 462 
(1972); Davis, 402 U.S. at 37; Swann, 402 UTS. at 25.

-21-



the result ofalternative when it selects a particular option,27 

the sum of the choices made by the district must be to desegregate 

the system to the maximum possible extent.28 29 * 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 C.S. at 538.

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.28 To the extent that 

neighborhoods are themselves segregated, however, such plans tend 

to prolong the existence of segregation in schools.20 Thus, they 

must be carefully scrutinized. They are not "per se adequate to 

meet the remedial responsibilities of local boards." Davis, 402 

O.S. at 37; see Dnited States v. Board of Education, Independent

See Pitts v. Freeman, 755 F.2d 1423, 1427 (11th Cir. 1985).

28 See Diaz v. San Jose Unified School Dist., 733 F.2d 660 (9th 
Cir. 1984") (en banc) (castigating school district for consistently 
choosing more segregative alternatives), cert, denied, 471 U.S. 
1065 (1985).

29 See 20 D.S.C. S 1701 (1982) (declaring it to be the public 
policy of the Dnited States that neighborhood schools are the 
appropriate basis- for determining public school assignments); 
Crawford v. Los Angeles Bd. of Ed., 458 D.S. 527, 537 n.15 (1982); 
D\az, 733 F.2d at 677 (Choy, J ., dissenting).

30 See Swann, 402 O.S. at 28; Diaz, 733 F.2d at 664.



School District No. 1, Tulsa County, 429 F.2d 1253 (10th Cir.

1970).31

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.32 

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

On remand, the district court in Tulsa County developed a 
plan to desegregate Tulsa's schools, which we subsequently 
affirmed. 459 F.2d 720 (10th Cir. 1972). The Supreme Court then 
summarily reversed our affirmance of the proposed plan and 
remanded for reconsideration in light of Keyes. 413 D.S. 915
(1973). We then determined that "the factual premise upon which 
we based our original decision ha[d] been so materially changed 
both by lapse of time and the specific and voluntary actions taken 
by the School Board and the students themselves that our further 
consideration under the present record would serve no useful 
purpose.” 492 F.2d 118S (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.

32 See Morgan v, Nucci, 831 F.2d 313, 328-29 (1st Cir. 1987) 
(racial neutrality is "unreliable talisman"); Diaz, 733 F.2d at 
664 (adherence to neighborhood plan not determinative on question 
of segregative intent); Adams v. Dnited States, 620 F.2d 1277, 
1285-86 (8th Cir. 1980) (en banc) (adoption of neighborhood school 
plan did not fulfill duty to desegregate); c f . Pitts, 755 F.2d at 
1426 (mere adoption of desegregation plan insufficient to render a 
dual system unitary).

-23-



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 attendance boundaries the district 

can draw under a neighborhood school plan.33 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. 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.

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.34 Similarly, a

See Columbus Bd. of Educ., 443 U.S. 449, 462 & nn. 9-11 
(1979); Swann, 402 U.S. at 28; Diaz, 733 F.2d at 667-71; Tulsa 
County, 429 F.2d at 1256-57.

34 See Adams, 620 F.2d at 1288-91 (intact busing, school site 
selection, block busing, transfer policy, and segregated faculty

-24-



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.35 36 Such techniques 

may include, for example, the establishment of magnet schools and 

vigorous official encouragement of desegregative transfers.

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.36

assignments); Higgins v. Board of Educ., 508 F.2d 779, 787 (6th 
Cir. 1974) (listing segregative techniques); Tulsa County, 429 
F.2d at 1257 (transfer policy).

35 See Ross, 699 F.2d at 222, 227; Price, 694 F.2d at 351-53; 
c f . Diaz, 733 F.2d at 672-73 (criticizing school district for 
implementing none of desegregation proposals made by citizens' 
committee).

36 See Columbus, 433 O.S. at 463 n.12 (Board refused to seek 
advice on desegregation or implement recommendations); Morgan, 831 
F.2d at 321 (noting cooperation with court orders); Diaz, 733 F.2d 
at 671-74 (manipulation of committee studying segregation; 
statements suggesting failure of bond issue would lead to forced 
busing); Ross, 699 F.2d at 222-23 (school district appointed 
community task force to develop magnet plan, opposed efforts to 
disrupt integration plans, and promoted interdistrict transfer).

-25-



C. Maximum Practicable Desegregation

What more can and should be done, if anything, is the final 

component in a determination of unitary status.3^ Essentially, 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.* 38
i

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.39 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

See Davis, 402 U.S. at 37; Morgan, 831 F.2d at 322-25; Ross, 
699 F773 at 224-25.

38 See Morgan, 831 F.2d at 324; Ross, 699 F.2d at 225.

39 See Morqan, 831 F.2d at 322-25; Riddick, 784 F.2d at 532-34; 
Calhoun, 522 F.2d 717.

-26-



of the obstacles in its way, it is reasonable to conclude that no 

further desegregation is feasible.4®

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 D.S. at 30-31. 

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 (mere awkwardness or 

inconvenience is no barrier to carrying out desegregation plan).

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

See Ross, 699 F.2d at 224 (further remedial efforts would be 
unreasonable and inadequate); Calhoun v. Cook, 525 F.2d 1203, 1203 
(5th Cir. 1975) (per curiam) ("It would blink reality . . .  to 
hold the Atlanta School System to be nonunitary because further 
integration is theoretically possible and we expressly decline to 
do so.").

-27-



the maximum desegregation practicable for that district. We now 

apply these legal principles to Topeka.

V.

THE FINDING OF UNITARINESS

Because Topeka's schools formerly operated under a system of 

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 Education v. Penick, 443 U.S. 449, 459 (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.

A. Burden of Proof

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 th^ prior de jure system. Plaintiffs quote 

a number of sentences from the district court's opinion as support

-28-



for their argument that the court placed on them the burden of 

proof on intent. Brief for Plaintiffs-Appellants at 27.41 The 

court itself expressed some confusion 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 O.S. 526 (1979).

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

41 For example, the district court stated:

"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).

-29-



schools since that time had the effect of "promoting] 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 that 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.^ 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

See, e.q., 671 F. Supp. at 1298-99 ("the use of space 
additions was consistent with a race-neutral neighborhood 
policy. . . . [I]t has not been shown that space additions were 
intentionally used to promote segregation. . . ."); .id. at 1300 
("The court believes the siting of Topeka West High School was a 
race-neutral decision."); id. at 1301 ("The district has 
consistently applied race-neutral, neighborhood school principles 
to the demarcation of attendance zones."); id. at 1309 ("The court 
does not believe the district's conduct over thirty years 
indicates a desire to perpetuate segregation by foregoing 
opportunities to desegregate schools.").

-30-



met, the school district's actions would pass constitutional 

muster.

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 that 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. 

"[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 O.S. at 538. A lack of intent to discriminate is therefore 

insufficient. "'Racially neutral' assignment plans . . . may be 

inadequate; such plans may fail to counteract the continuing 

effects of past school segregation . . . .  In short, an 

assignment plan is not acceptable simply because it appears to be 

neutral." Swann, 402 U.S. at 28. Mere adherence to a race- 

neutral but ineffective neighborhood school plan is therefore alio 

insufficient. In general, any course of action that fails to

-31-



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 (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.

B. The Evidence

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. Our differences with the district court lie 

mainly in how the essentially undisputed facts are characterized. 

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.

-32-



1 . Current Condition of Segregation in Topeka

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.

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. 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

-33-



point primarily to student assignment, and faculty and staff 

assignment. We consider each in turn, and then together.

a. Student Assignment

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,

Drs. Lamson and Foster, each used standards that took the 

percentage of black or minority students actually enrolled in the 

elementary or secondary schools (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

Plaintiffs do not contest the district court's finding that 
the Topeka school system is unitary with respect to facilities, 
extracurricular activities, curriculum, transportation, and 
equality of education. See Brown, 671 F. Supp. at 1307-08. There 
are currently no optional attendance zones, and the district's 
transfer policy is a majority-to-minority program. See id. at 
1298.

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.

-34-



minus 15%). 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%.44

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.

44 The school district also offered two indices as a measure of 
desegregation in Topeka’s schools. Rec., vol. XIII, at 2574-80. 
The dissimilarity index measures how dissimilar schools are 
compared to the district's mean. Rec., vol. IV, at 558. The 
exposure index is a measure of the potential for interracial 
contact. The indices are measures of system-wide desegregation, 
however; they say nothing about individual schools. Rec., vol. 
IV, at 554-57; rec., vol. XIII, at 2581.

-35-



b. Faculty and Staff Assignment

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.1

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 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%.  ̂ In the secondary schools, the 1 2

1 The range used by plaintiffs was very narrow, and it was 
extremely difficult for any school to fall within it. In 1985, 
for example, only four of the twenty-six elementary schools were 
not racially identifiable under plaintiffs' standard. While it is 
appropriate to use a harsher standard for analyzing faculty 
assignments than student assignments, since the school district 
may assign faculty as it sees fit, plaintiffs' standard is simply 
too difficult to meet in this case. We note, moreover, that the 
school district is limited to some extent in its ability to assign 
faculty because different teachers are certified in different 
fields. This is particularly true at the secondary level.

2
Minority Faculty/Staff In 

Topeka's Elementary Schools, 1985

School______________________ Total_____Minority_________%
Avondale East 31.4 10.45 33.3

-36-



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%.^

Avondale West 25.8 1.0 3.9
Belvoir 25.95 3.85 14.8
Bishop 23.8 .4 1.7
Crestview 31.65 3.4 10.7

Gage 21.0 1.0 4.8
Highland Park Central 34.6 3.9 11.3
Highland Park North 28.6 5.5 19.2
Highland Park South 29.2 5.4 18.5
Hudson 19.75 3.8 19.2

Lafayette 32.6 5.65 17.3
Linn 17.8 .3 1.7
Lowman Hill 25.6 6.5 25.4
Lundgren 21.55 2.8 13.0
McCarter 27.4 3.0 10.9

McClure 25.1 0.0 0.0
McEachron 23.5 1.0 4.3
Potwin 14.15 2.0 14.1
Quincy 32.35 1.0 3.1
Quinton Heights 20.4 4.4 21.6

Randolph 27.0 1.0 3.7
Shaner 21.9 2.0 9.1
State Street 22.9 1.3 5.7
Stout 20.6 2.0 9.7
Sumner 23.3 1.85 7.9
Whitson 35.35 1.0 2.3

Average minority faculty/staff: 11.2%.

, , ex. vol. IV, at 261 •

Minority/Staff In
Topeka's Secondary Schools, 1985

School Total Minority %
Chase 40.5 7.45 18.4
Eisenhower 65.25 12.1 18.5
French 42.6 2.4 5.6
Jardine 39.65 3.8 9.6
Landon 31.1 3.0 9.6

-37-



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 faculty 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 twice as likely to 

be a teacher aide or service worker as a teacher.

Robinson 49.35 12.2 24.7

Highland Park 118.25 13.65 11.5
Topeka 150.1 25.5 17.0
Topeka West 120.0 3.0 2.5

Average minority faculty/staff:

Rec., ex. vol. IV, at 262.

-38-

12.65%.



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. We therefore conclude that faculty/staff assignment in 

Topeka remains segregated.

c. Factors considered together

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 O.S. 457, 472 (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

-39-



white or minority. This practice of disproportionate assignments 

also reinforces the irrational nation that minority teachers are 

inferior and not fit to teach white children.

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. The 

school district has not attempted to provide one.

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,

-40-



The same is true of theareas with mostly white populations.4 

.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 infra part 

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.^ * 30

4 For two of these schools, Gage and Potwin, the district court 
specifically found that they have been predominantly white schools 
since the Supreme Court's decision in this case, and remain 
predominantly white schools adjacent to schools with higher-than- 
average minority student population. 671 F. Supp. at 1303.

We do not consider this part of our opinion necessarily in 
conflict with the district court's conclusion that there is no 
illegal segregation in Topeka, because the court did not 
separately consider the issue of current segregation apart from 
the question of causation. As we previously pointed out, the 
district court did find the existence of racial disparities in 
school enrollment and staff/faculty assignment. See supra at pp.
30, 33. 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.

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2 . The Causal Link Between De jure Segregation and the Current

Condition of Segregation

Brown I established that the Topeka school system was one of 

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.

Timing is central to an assessment of the Topeka school 

district’s actions. After a remarkably enlightened beginning in 

the mid-1950s, the course it followed in the early 1960s may 

fairly be characterized as segregative. This decade from 1956 to 

1966 is important because it established a framework from which 

the school district subsequently deviated very little.® A period 

of quiescence then followed, during which the system was simply 

administered as it stood. Finally, under the impetus of the HEW

° Thus, one of the school district's experts, after reluctantly 
admitting that Lowraan Hill elementary school's attendance 
boundaries were drawn in the 1950s with the effect of encompassing 
the only two areas of black population in that part of Topeka, and 
that the school was long surrounded by other schools with few to 
no black students, objected that "the boundaries of those school 
districts [were] in place." Rec., vol. XI, at 2345.

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proceedings in the mid-1970s, 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 its duty 

to desegregate had been fulfilled 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 actions 

undertaken by the school board were primarily the result of 

pressure from the federal government. Although its record is 

better than that of many other school districts, Topeka has 

engaged in voluntary desegregation with little enthusiasm.

a. The general pattern in each decade

i. The mid-50s to raid-60s

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

-43-



population moved outwards, the inner city population became 

increasingly heavily minority, and inner city schools were closed.

The mid-60s found the Topeka school system still heavily 

segregated. While the numeric polarization between schools had 

decreased to some extent systemwide,”̂ and minority students were 

somewhat less concentrated,* 8 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

' In 1955, 3 elementary schools were 99+% black and 14 
elementary schools were 90+% white for a total of 17 out of the 23 
elementary schools. In 1966, 1 elementary school was 90+% 
minority and 19 elementary schools were 90+% white, for a total of 
20 out of the 35 elementary schools. Rec., ex. vol IV, at 39-40, 
54-56. Pages 30-181 of volume IV of the exhibits consist of 
student enrollments for individual schools from 1950 to 1985. We 
henceforth refer to this part of the record as Student Tables.

8 In 1955, about half of Topeka's black students attended three 
schools that were 99+% black. In 1966, approximately the same 
percentage of minority students attended one 90+% minority school 
and three 50-80% minority schools. Student Tables, 1955, 1966.

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one such boundary change might have had segregative effects not
Q

explainable solely by demographic shifts.7

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.

ii. Mid-60s to Mid-70s

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.

The only significant change in the school system at the end 

of this period was that the number of virtually all-white schools 

dropped. At the elementary level, 19 out of a total of 35 *

® Rec., vol. XI, at 2326.

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elementary schools were virtually one-race in 1966; 13 out of a 

total of 34 were virtually one-race in-1974.^  The difference at 

the secondary level was less: from 6 out of 14 schools in 1966,

to 5 out of 15 schools in 1974. This change took place primarily 

in schools on the outskirts of the southeastern part of Topeka, 

the area into which minorities were spreading. The school 

district's conduct during this period can thus be summarized as 

letting demographic forces work without interference or 

encouragement. This also means that schools already heavily 

minority were allowed to increase in minority population.11 It is 

apparent that while Topeka did not promote a segregated school 

system during this period, it maintained the system then in 

effect.

iii. Mid-70s to the present

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 racial compositions not consonant with a unitary 10 11

10 Student Tables, 1966, 1974. Lyman elementary school was 
deannexed during this period.

11 In 1966, Belvoir elementary school had 59.7% minority 
students and Lafayette elementary school had 54.5% minority 
students. By 1974, Belvoir had 67.1% minority students and 
Lafayette had 68.9%. At the secondary level, Crane junior high 
rose from 34.45% minority in 1966 to 52.9% in 1974, while East 
Topeka junior high remained more than 60% minority. Student 
Tables, 1966, 1974.

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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.* 13 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."13 It developed and implemented 

two plans largely approved by HEW.

These plans had some success. At the end of the 

reorganization, there were no 90+1 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 dropped as much in the

Rec., vol. V, at 12-14.

13 Rec., vol. XII, at 2485-91; rec., ex. vol. V, at 245-47.

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six years from 1975 to 1981 as they had fallen in the previous 

twenty years.14 15

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.^ This movement has continued. In 1985, two 

additional elementary schools were just barely no longer one-race 

for that reason.1®

Other changes that took place in this decade 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

14 Topeka's dissimilarity index dropped from 62.1 in 1955 to 
51.3 in 1976, a drop of approximately 10 points. In 1981 the 
index stood at 40.8. Topeka's relative exposure index fell from 
47.7 in 1955 to 27.1 in 1975, and further to 16.2 in 1981. These 
drops indicate that the school system was becoming less 
segregated. Rec., ex. vol. II, at 156-57.

15 Student Tables, 1975, 1981; compare rec., ex. vol. I, at 48-B 
(1974 map) with id. at 49-A (1979 map; no change to Bishop, 
Avondale West, or Lundgren).

1® Student Tables, 1985 (McEachron and Whitson).

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of trial, the district adopted an explicit policy against 

discrimination in faculty and staff assignment.* 1-7 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.

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. 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;

Rec., vol. XII, at 2473-75.

1® Plaintiffs point to the school board's refusal to adopt two 
desegregative reorganization plans proposed in 1984 by the Topeka 
school administration as evidence that the district is not 
presently committed to desegregation. These plans were violently 
opposed by minorities and whites alike because they would have 
destroyed the neighborhood school system, and we do not believe 
that the failure to adopt them reflects a current lack of 
commitment to desegregation. Nevertheless, the proposal of plans 
described as completely unworkable by a then-member of the Board 
does not satisfy the district's duty to desegregate its schools.

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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.

b. Individual Factors

Green v. County School Board, 391 U.S. 430, 435 (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. 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.

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Student assignment over timei .

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 improvement in the 

last ten years.19 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.20 Its minority population

Two elementary schools with more than 80% minority students 
were closed (Monroe 1975, Parkdale 1978) and the target minority 
percentages approved by HEW in 1976 have either been met or 
improved on. Compare rec., ex. vol. V, at 37 (projected 
enrollments of elementary schools under plan designed to satisfy 
HEW) with Student Tables, 1985. It should be noted that HEW did 
not approve the projected enrollments of more than 70% minority 
for Lafayette and Belvoir under the plan cited above. Rec., ex. 
vol. II, at 173. In the last five years, minority enrollments have 
increased in the primarily white schools, bringing them towards or 
over 10% minority, while the percentage of minority students at 
disproportionately minority schools has remained steady or dropped 
slightly. Student Tables, 1980-1985. The difference between 
schools that are more heavily minority and those that are 
primarily white have thus been narrowing.

20 Cf^ Stout v. Jefferson County Bd. of Educ., 537 F.2d 800 
(5th Cir. 1976) (mountain range and dangerous roads).

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is spread over half the city, not concentrated in hard-to-reach 

enclaves.^ 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.22 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.^ 

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.24 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 * 22

Cf. Morgan v. Nucci, 831 F.2d 313, 320 (1st Cir. 1987) 
(racially identifiable schools in heavily black areas or cut off 
by harbor); Ross v. Biouston Indep. School Dist., 699 F.2d 218, 224 
(5th Cir. 1983) (segregated schools located at opposite ends of 
large urban school district).

22 we do not mean to suggest that the school district has not 
faced opposition on other grounds. Both the reorganization of the 
late 1970s and two plans proposed in 1984 for further 
reorganization were met by community resistance. Rec., vol. XIII, 
at 2437-38.

22 Cf. Tasby v. Wriqht, 713 F.2d 90, 93 (5th Cir. 1983); Ross, 
699 F .2d at 222.

24 Rec., vol. XII, at 2418 (Board member 1957-1965: no
discussions on segregative or desegregative effects of actions); 
rec., vol. XII, at 2440-41 (Board member 1977-1985: Board voted
for open enrollment plan although warned it might have segregative 
effect); rec., vol. XII, at 2491 (Board member 1973-1977: Board
resisted HEW efforts because it considered system unitary then).

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move, no way."“  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 

acting "with all deliberate speed” to "convert to a unitary system 

in which racial discrimination would be eliminated root and 

branch."2®

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.

ii. Paculty/staff assignment over time

Plaintiffs do not dispute the district court's finding that 

the hiring of minority faculty and staff is not now 25 26

25 Rec., vol. XII, at 2423.

26 Brown II, 349 U.S. at 301; Green, 391 D.S. at 437-38.

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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.

For example, while it is true that all of the district’s 

schools have been within 10% of the average percentage minority 

faculty/staff at least once in the last ten years, 671 F. Supp. at 

1305, that statement is misleading considering that the percentage 

of minority faculty/staff in'the system as a whole has ranged only 

from 9.9% to 16% in the last ten years at the elementary level and 

is currently about 11%. Thus, in 1975, when the average 

percentage was 9.9%, schools with no minority faculty or staff 

were still technically within 10% of the average. The 10% once- 

in-ten-years standard includes both McEachron, which had no 

minority faculty/staff for nine of the 13 years for which such 

statistics have been kept and in the last three years has had only 

one minority faculty/staff member out of approximately 25, and 

Lowman Hill, which has never had less than 15% and has once had 

more than 30% minority faculty/staff during the same time period. 

Furthermore, while it is true, as the district court noted, that

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the petcentage of minority faculty/staff assignment has not 

invariably tracked the percentage of minority students, there is 

nevertheless a distinct pattern of correlation. McClure, for 

example, which has had more than 5% minority students only in 1979 

and 1985, has had no minority faculty/staff since 1979, while 

Avondale East, which has generally had minority student 

percentages in the 30s and 40s has also generally had minority 

faculty/staff percentages in the 20s and 30s. Finally, because 

our data does not distinguish between faculty and staff, and 

because minority employees are more heavily represented as staff 

than as faculty, it is quite possible that the one minority 

faculty/staff person at McEachron, for instance, is a clerical or 

janitorial staff person rather than a teacher or other role model.

The long-standing pattern of imbalances coupled with the 

tracking of student assignment percentages is strong evidence of a 

dual system because, as pointed out above, faculty/staff 

assignment is far less difficult to adjust than a factor such as 

student assignment. While the ratio of minority faculty/staff in 

schools with different levels of minority students has improved 

over the twelve years that records have been kept, that 

improvement alone does not alter the pattern. It merely makes it 

less dramatic.

There is one area in which the Topeka school system is 

clearly desegregated. Minorities are well-represented, indeed

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statistically over-represented, at the managerial level. Several 

principals are minorities, as is the current superintendent. This 

is both laudable in itself and an indication that whatever bias 

lingers in the assignment of faculty/staff is not deliberate. 

Nevertheless, although there has been improvement in this area, 

racial disparity does in fact linger because the school district 

has not consciously addressed the problem.27 Inertia has thus led 

to the maintenance, albeit in less striking form, of a system that 

has kept white faculty at primarily white schools and minority 

faculty at predominantly minority schools.

iii. Attendance boundaries and how (not) changed

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

27 According to Dr. Foster, the school district administrator in 
charge of personnel for 1984 stated in a deposition that he had 
"no knowledge of an assignment policy regarding assignment of 
minority personnel." Rec., vol. V, at 632. The school district 
does not deny that there was no policy directed expressly at 
assignment. Instead, it claims that its 1963 policy against 
discrimination in recruitment was broad enough to cover 
assignment. Rec., vol. X, at 1517; rec., vol. XII, at 2428-29; 
rec., vol. XII, at 2692-99; rec., ex. vol. II, at 58-59; rec., ex. 
vol. IV, at 217-19.

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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. As a result, much but not all of the 

segregative effect of old attendance boundaries has been 

dissipated.

A number of existing schools do have peculiar-looking 

attendance boundaries. Randolph has an arm jutting out to the 

east. Stout and Quinton Heights both include areas to the north 

and east some distance away from the school building. In the case 

of Randolph and Stout, the extensions have a desegregative effect. 

The reverse is true of Quinton Heights' current boundaries. See 

infra Part V B(2)(c)(v). As far as the record reflects, the 

current boundaries of Randolph and Stout are the only examples 

that Topeka has manipulated attendance boundaries in order to 

desegregate.

As the district court acknowledged, the most serious example 

of segregative attendance boundaries is Lowman Hill. Lowman 

Hill's attendance area is a more or less square area with the 

school located in the center. Plaintiffs point out that this area 

includes, and has included for the last 25 years, two areas of

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heavy minority population. These areas are now part of a general 

central Topeka minority population, but were relatively isolated 

when Lowman Hill's boundaries were first drawn to include them. 

Within the last ten years, three elementary schools bordering the 

Lowman Hill area, one with a minority student percentage 

significantly lower than Lowman Hill's, have closed.28 The 

closings did not affect the minority student percentage at Lowman 

Hill. It remains a school with a heavy minority percentage 

bordered by schools with much lower minority percentages. It also 

remains the school whose attendance boundaries include the only 

significant group of minority population in the northwestern 

quarter of the school district. See infra Part VI B(2)(c)(vi).

The history of Lafayette is similar although not as extreme. 

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 and the heavily minority area served by Lafayette and the 

schools to its south and southwest. 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%.29 See infra Part VI

28 Clay closed in 1975. At the time, Clay had approximately 25% 
minority students while Lowman Hill had approximately 45%. Rec., 
vol. Ill, at 282-83. Student Tables, 1975. Polk closed in 1979, 
and Central Park in 1980. Rec., vol. Ill, at 290-92.

29 • Student Tables, 1966-1985.

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B(2)(c)(iv).

While the boundaries of Loman Hill and Lafayette are 

consistent with a neighborhood school policy, as held by the 

district court, the original decisions to draw them to include the 

black population of the area had a segregative effect which the 

school district has never undone. The school district may not 

draw segregative attendance boundaries, maintain them for decades, 

and then take shelter behind the neutrality of its recent 

inaction. See Swann, 402 U.S. at 21.

iv. Location of new schools

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

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voluntarily bused white children from outer Topeka to the inner 

city.schools instead of putting up new buildings.

Almost all of the building in question took place in the late 

1950s and early 1960s, before the Supreme Court made clear that 

prior de jure school districts must do more than operate a neutral 

system. Green, 391 D.S. 430. Moreover, the city was annexing new 

territory during that time, a matter beyond the control of the 

school district, and it is not entirely unreasonable for the 

district to build schools "where the children are." Nevertheless, 

the erection of so many schools devoted to educating white 

children had a significant segregative effect on the district.

See infra Part V B(2)(a)(i). While the building of new schools to 

accommodate an influx of white children arguably had a legitimate 

basis at the time, the school district did nothing to diminish the 

segregative effect of those schools, even after it became clear 

that school districts under an unfulfilled duty to desegregate 

must do more than operate a facially neutral neighborhood school 

system. As we have said, neighborhood school plans are 

permissible i_f they are effective in actually reducing 

segregation. School openings and locations are a crucial variable 

in such plans. Swann, 402 U.S. at 20-21. In Topeka, school 

openings under the neighborhood school plan in fact worked to 

increase segregation. A school district conscious of its 

constitutional duty would have attempted to counteract that 

effect. See Diaz v. San Jose Unified School District, 733 F.2d

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660, 667-69 (9th Cir. 1984) (en banc), cert, denied, 471 U.S. 1065 

(1985). Topeka did nothing.

v. School closings

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

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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.

In sum, although the hiring of minority faculty and staff 

became nondiscriminatory, and even included significant 

representation of minorities in management, the district 

nevertheless maintained racial imbalance 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.

c. Individual schools

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

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the district did and did not do with respect to individual 

schools.

i. Belvoir elementary school

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.30 

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.

Belvoir's boundaries were once altered to take in part of the 

attendance areas of a school that was closed. That closing did 

have a modest desegregative effect at Belvoir, but it did not 

change Belvoir's status as the school with the highest minority 

percentage in the system. Although it is no longer surrounded by 

schools with markedly lower minority percentages, it remains an 

east-side minority school as opposed to the west-side white

30 Student Tables, 1966-1985..

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schools. It cannot be said that the neighborhood school plan has 

.been effective in desegregating Belvoir.

ii. Hudson elementary school

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.

iii. Highland Park North elementary school

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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I V  . Lafayette elementary school

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, 

«>nd 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.

The closing of three schools affected Lafayette's boundaries. 

We have insufficient information to evaluate one closing, in the 

1960s, and the other two closings had negligible effects on 

Lafayette's minority percentages. Under its neighborhood school 

plan, the school district simply maintained Lafayette as a school 

with disproportionate minority percentages.

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Quinton Heights elementary schoolv .

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.^1 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.

Plaintiffs characterize the reassignments in the 1960s as 

part of a process of focusing Quinton Heights as a school for 

black students. In 1966, Quinton Heights' minority student 

percentage was seventh highest out of thirty-five elementary 

schools, and its minority population bordered two schools with 

much lower minority percentages (Central Park, with 15.5%, and 

Polk, with 11.5%). Indeed, on the maps available to us, it is 

quite noticeable that Polk's boundaries in 1970 correspond closely

Rec., vol. Ill, at 249-51, 254-55. The area assigned to 
Quinton Heights when Van Buren closed was apparently empty of 
people at the time. The school district had already extended 
Quinton Heights into Van Buren's attendance area before Van Buren 
was closed, however. Rec., vol. Ill, at 251-53.

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to a patch of white population surrounded by minority population 

assigned to other schools, including Quinton Heights. *

Two adjacent, schools were closed during the 1970s. Each 

time, Quinton Heights' boundary was extended northwards. It is 

thus clear that Quinton Heights' current boundaries are the result 

of continued manipulation by the school district. They extend far 

into minority areas to the north and east of the school building 

and cross many natural barriers.^ Quinton Heights is a 

"neighborhood” school only in the sense that some of its students 

do live in the immediate area of the school buiding. Most do not. 

Quinton Heights is entirely the product of the school district's 

actions; as such, the district may not disclaim responsibility for 

the makeup of the students who attend it.

vi. Lowman Hill elementary school

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 Lowman Hill's boundaries to include as many black and as

32 Rec., vol
33 Rec. , vol
vol. V, at 227

I, at 48.

Ill, at 291-92, rec., vol. X, at 1536, rec., ex.

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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.34

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).

34 Rec., ex. vol. I, at 48.

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vii. Predominantly white schools

Eight elementary schools were at time of trial and have been 

during the course of this litigation primarily white schools.35 

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.35 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.

Plaintiffs focus on Topeka West High School as the 

quintessential example of deliberate channeling of white students 

to schools in the western part of the school district. The school 

was opened in 1961 six blocks from the western edge of the school 

district, the part of the district most distant from centers of 

minority population. Consequently, it was then and remains now a 

school with more than 90% white students, while the percentage of 

minority students at the other two high schools has been higher 

than average. Little evidence was introduced on the other white

The schools are Bishop, Crestview, Gage, McCarter, McClure, 
McEachron, Potwin, and Whitson.

35 Bishop was 10.5% minority, McEachron was 10.3% minority, and 
Whitson wau 10.2% minority.

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schools that has not already been discussed elsewhere. See infra 

Part V B(2)(b)(iv). To summarize, these schools were either 

annexed or built by the school district in the late 1950s and 

early 1960s. They opened as white schools with white faculty/ 

staff and have largely remained so. The school district offered 

no evidence that it had ever attempted to eliminate these schools’ 

identity as schools for white children.

3. Maximum Practicable Desegregation in Topeka

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. It is apparent from this record, 

however, that Topeka is not constrained by geographic obstacles as 

some other cities are.^7 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. 

Indeed, there is every reason to believe that further 

desegregation is feasible. The present commitment of the school 

board and district administration, the already widespread * *

^7 Cf. Morgan v. Nucci, 831 F.2d 313 (1st Cir. 1987) (harbour 
and concentration of black population in certain districts); Stout 
v. Jefferson County Bd. of Educ., 537 F.2d 800 (5th Cir. 1976)
(mountain range and dangerous roads).

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distribution of minorities, and the expected continued movement of 

minorities into western Topeka should make the course of further 

desegregation relatively smooth.

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 Poster 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 or white schools.38 A similar analysis 

was performed with respect to faculty/staff.39

38 Rec., vol. VI, at 794-801.

39 The faculty/staff analysis was performed for 1981, the only 
year for which there is faculty-alone data. Dr. Foster concluded 
that the movement of 25 faculty/staff, or approximately 3% of 
total faculty/staff, would satisfy plaintiffs' formula. This 25

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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.

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.

includes the movement both out of and into schools. Rec., vol. V, 
at 663-64; rec., vol. VI, at 764-67, 773-74.

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C. Conclusion on Unitariness

‘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.

Our basic disagreement with the district court is centered 

around the fact that the duty to desegregate requires more. What 

Topeka did not do is actively strive to dismantle the system that 

existed. It opened and closed schools with little or no thought 

given to the effect of such actions on segregation, and observed 

the segregative or desegregative effects of such actions with 

indifference. Even those school board decisions that had some 

desegregative effect were not carried out in such a manner as to 

disestablish the dual system. For example, rather than integrate 

the former de jure black schools, Topeka gradually closed them. 

Their students were then reassigned virtually en masse to other 

schools, which then took on the same minority-school identity.

The shifting distribution of Topekans throughout the city 

sometimes hindered, sometimes aided, the cause of desegregation, 

but the school district sought neither to reduce the impact of the

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former nor to encourage the effects of the latter. It simply 

administered the system, with due regard for economic efficiency 

and the quality of education in the district, but without a 

commitment to undoing the segregated structure of that education. 

Consequently, it permitted Topeka's schools to fall into three 

categories: schools that are now and always have been white,

schools that are now and long have been heavily minority, and 

others. As we have noted, the mere existence of racially 

identifiable schools does not violate the Constitution. Where 

prior de jure segregation exists, however, we are convinced that 

permitting white schools and minority schools to remain racially 

identifiable as such without significant efforts to the contrary 

is in effect to permit the continuation of a dual system of 

education. Based on the evidence set out above, we have a 

definite and firm conviction that the district court erred when it 

found the Topeka school system to be unitary. Cf. Pitts v. 

Freeman, 755 F.2d 1423 (11th Cir. 1985); Diaz, 733 F.2d 660; Adams 

v. United States, 620 F.2d 1277 (8th Cir. 1980) (en banc);

Brinkman v. Gilliqan, 583 F.2d 243 (6th Cir. 1978), aff'd sub nom. 

Dayton Board of Education v. Brinkman, 443 U.S. 526 (1979).

VI.

TITLE VI

Plaintiffs argue that the school district violated both 

section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C.

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S 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,40 and 34 C.F.R. § 100 contains 

regulations implementing Title VI. The Topeka school system 

receives federal funds.

The Supreme Court held in Regents of the Oniversity of 

California v. Bakke, 438 U.S. 265 (1978), that discrimination 

under Title VI is to be measured by the constitutional standard of 

the Equal Protection Clause. Id. at 284-87. 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.

STATE DEFENDANTS

The state of Kansas intervened as a defendant in Brown I to 

defend the constitutionality of the Kansas law permitting

Section 601 reads:

"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. S 2000d (1982 ) .

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§ 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,40 and 34 C.F.R. § 100 contains 

regulations implementing Title VI. The Topeka school system 

receives federal funds.

The Supreme Court held in Regents of the University of 

California v. Bakke, 438 O.S. 265 (1978), that discrimination 

under Title VI is to be measured by the constitutional standard of 

the Equal Protection Clause. Id. at 284-87. 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.

STATE DEFENDANTS

The state of Kansas intervened as a defendant in Brown I to 

defend the constitutionality of the Kansas law permitting

Section 601 reads:

"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. S 200 0d (1982 ) .

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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.^ 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 -

The supreme executive power of the state of Kansas is vested 

in its Governor, who "shall be responsible for the enforcement of 

the laws of this state." Kan. Const, art. I, S 3 .  One of the 

Governor's powers is that of reorganizing state executive 

agencies. "[Constitutionally delegated functions of state 

officers and state boards" are exempt from this reorganization 

power. Id. § 6(a). The State Board of Education is such an 

exempt state board. Ij3. art. 6, S 2; State ex rel. Miller v.

Board of Education, 511 P.2d 705, 709 (Kan. 1973). Because the 

State Board of Education is the Kansas organ of government 

responsible for education, these provisions limit the Governor's 

executive power over education to that embodied in the power to 

enforce the laws of Kansas. Plaintiffs have not suggested that 

any Kansas law is now implicated in this litigation. The Governor

^  The state had been dismissed as a party to the action in 
1979. Brief of Appellee John Carlin at 3.

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is not vested by the provisions cited above with the power to 

enforce federal law, and plaintiffs have not shown any other 

source of such power. The district court was correct in 

concluding that the Governor is not able, under state law, to 

comply with such injunctive relief as may be ordered in this case. 

It was therefore proper to dismiss him from the case.

The correct disposition of the case against the members of 

the State Board of Education is more difficult to resolve.

Kansas, like many other states, assigns the primary responsibility 

for the day-to-day management of public schools to local school 

authorities. See Kan. Const, art. 6, S 5. At the time of Brown 

I, the Kansas Constitution provided for a Superintendent of Public 

Instruction with limited authority. In particular, this officer 

did not have the 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. SS 21-4003, and 

SS 44-1001 et. seq. This history is in contrast to the actions of 

other states that have been held liable for promoting

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segregation.42 Moreover, the state was never held expressly 

liable for the actual segregation in Topeka's schools.

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, SS 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

See Milliken v. Bradley, 433 D.S. 267 (1977) (affirming 
remedy based in part on state liability); Milliken v. Bradley, 418 
U.S. 717 (1974) (state provided funds for transporting white 
students but not for desegregative busing, enacted laws designed 
to delay desegregation plan and maintain segregation, rescinded 
city's voluntary desegregation plan, and approved school sites and 
construction with segregative results); Liddell v. State of 
Missouri, 731 F.2d 1294, 1298 (8th Cir.) (state constitution 
mandated segregation until 1976 and state took no action to 
desegegate schools after Brown I), cert denied, 469 U.S. 816 
(1984) ; Los Angeles Branch NAACP v. Los Angeles Unified School 
Dist. , 714 F .2d 946, 948 n.2 (9th Cir. 1983) (listing state 
policies and acts that helped to maintain segregation), cert. 
denied, 467 U.S. 1209 (1984). Furthermore, in both Milliken and 
Los Angeles Branch NAACP there was clear state law giving the 
state, as opposed to local school authorities, a prominant role. 
See Milliken, 418 U.S. at 726 n.5 (Michigan constitution assigns 
"the whole subject" of education to the state); Los Angeles Branch 
NAACP, 714 F.2d at 949 (listing California cases detailing 
responsibility of state organs to aid in desegregation).

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State Board could have withheld accreditation of segregated 

schools, citing evidence that the Board is empowered to withhold 

accreditation on this basis.4  ̂ 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.* 44 These proposals are consistent with the State 

Board's argument that its role is primarily advisory in the area 

of desegregation.

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. SS 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

4J Reply Brief for Plaintiffs-Appellants, plaintiff's exhibits 
45, 47.

44 See, e .q ., rec., ex. vol. II, at 190-235.

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that any authority other than the Topeka school district had then 

or has now the power to desegregate Topeka's schools.

VIII.

CONCLUSION

In concluding, we begin by stressing what we do not have in 

Topeka. We do not 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.

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.

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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.

Judge Baldock is dissenting and will file an opinion.

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