School Distr. No. 1, Denver, CO v. Keyes Brief in Opposition to Certiorari

    I n  t h e

CEratrt of tip $mt?& Btat?s
O ctober T er m , 1975 

No. 75-701

S chool D istrict  No. 1, D enver , C olorado, et al.,

v.
Petitioners,

W ilfred  K eyes, et al.

BRIEF IN OPPOSITION TO CERTIORARI

G ordon G. G reiner  
R obert T . C onnery

500 Equitable Building 
730 17th Street 
Denver, Colorado 80202

J ack  G reenberg 
J am es M. N abrit , III 

10 Columbus Circle 
New York, New York 10019

Attorneys for Keyes, et al.



TABLE OF CONTENTS

Statement of the Case .............. -............- ....... -................ 1

Reasons for Denying the Writ:
I. As to violation, the Petition Presents No Sub­

stantial Legal Issues of General Applicability 
or Significance ....................................................  4

A. At Most, the Violation Question Relates
Only to the Application of This Court’s 
Standards to the Particular Pacts of the 
Denver School District .................................  4

B. The Petition Asserts No Conflict Among
the Circuits in Applying Keyes Generally, 
and There Are None ...........................-......... 4

C. The Courts Below Properly Decided That
Denver Was An Illegally Segregated School 
System _________________ ________ _______  5

1. The Controlling Factual Issue Remanded
Was Conceded by the School B oard...... 5

2. Both Courts Below, in Considering and 
Reviewing the School Board’s Evidence 
About Extraterritorial Effect, Pound
It Unconvincing ....................................... 7

3. The Petition Misstates the Holdings of
the Courts Below and Is Inconsistent 
With This Court’s Prior Decision .......... 9

II. As to the Scope of the Denver Remedy, the 
Petition Seeks to Relitigate Issues Determined 
by This Court’s Prior Opinion ........... .......... . 10

PAGE



11

A. Denver’s Asserted “Duality With a Differ­
ence” Has Already Been Rejected by This 
Court -....................................... ..... ................ 10

B. The Board’s Proposed Remedy Formula­
tion Resurrects the School-by-School Ap­
proach as to the Scope of the Remedy .......  11

III. As to the Other Components of the Remedial
Order, the Petition Raises No New or Sub-
tantial Issues ..................   12

A. The Trial Court Adopted the Board’s Own
Proposals As to An Affirmative Action Plan 
for the Recruitment of Additional Minority 
Teachers ................................................    12

B. There Is No Factual or Legal Basis for the
Contention That the District Court Erro­
neously Employed Racial Ratios in Assign­
ing Students ......................       13

C. None of the Issues Involved in the Pasa­
dena Case Were Litigated Below ..............  13

Conclusion ...............       14

T able oe Cases

Bradley v. School Bd. of City of Richmond, 382 U.S.
103 ....................... ............../............................................  13

Brinkman v. Gilligan, 503 F.2d 684 (6th Cir. 1974) ..... 4
Johnson v. San Francisco Unified School Dist., 500

F.2d 349 (9th Cir. 1974)

PAGE

4



Ill

Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 1974), cert, 
denied, 421 U.S. 963 ......................................................  4

Oliver v. Michigan State Board of Ed., 508 F.2d 178 
(6th Cir. 1974), cert, denied, 421 U.S. 963 ........... . 4

Rogers v. Paul, 382 U.S. 198 .............................. ......... . 13
Spangler v. Pasadena City Board of Education, 519 

F.2d 430 (9th Cir. 1975), cert, granted, 44 U.S.L.W.
3279 (No. 75-164, Nov. 11, 1975) ............................... 13,14

United States v. Montgomery County Bd. of Educ.,
395 U.S. 225 .................................. ............................... 13

United States v. School District of Omaha, 521 F.2d 
530 (8th Cir. 1975), cert, denied,------U.S.

PAGE

4



Ik t h e

(Enurt nf %  llmUb States
O ctober T erm , 1975 

No. 75-701

S chool D istrict  No. 1, D enver , C olorado, et al.,

Petitioners,
v.

W ilfred  K eyes, et al.

BRIEF IN OPPOSITION TO CERTIORARI

Statement o f the Case

The judicial findings and determinations preceding this 
Court’s prior opinion on the merits in this school deseg­
regation litigation are amply set forth by the Court, 413 
U.S. 189, at pp. 191-195.

We need not dwell upon the School Board’s restatement 
of that history, since the legal significance of those events 
was fully settled by this Court’s determination of that ap­
peal. From those events this Court concluded that the 
School Board had been “found guilty of following a delib­
erate segregation policy” as to substantial portion of the 
school system. 413 U.S. at 199.

The proceedings in the district court after remand in­
cluded a trial on the issue of district-wide violation under 
the principles set forth in Part II of this Court’s opinion, 
413 U.S. at pp. 198-205. The district court considered



2

whether there was any factual basis for finding the Park 
Hill area to be a unit separate, identifiable, or unrelated 
to the rest of the school district. On uneontested facts the 
trial court determined that Park Hill was indeed an inte­
gral part of the whole district.

Notwithstanding this finding as to Park Hill, the School 
Board contended that under this Court’s mandate it was 
entitled to show that its acts of intentional segregation had 
no effect on schools outside the Park Hill area. The dis­
trict court admitted and considered this evidence, ultimately 
holding it to be “merely conclusory and . . . lacking in 
substance.” 368 P. Supp. 207 at 210; App. 280a.

On appeal the Tenth Circuit upheld these findings (521 
F.2d 465, at 471-72; App. at 14a, 16a-19a), and the con­
clusion that Denver was an illegally segregated dual school 
system.

Contrary to the assertions of the School Board (Pet. at 
pp. 13-14, 17), neither of the courts below based its deter­
mination that Denver’s was an illegally segregated dual 
system on a finding that the “Park Hill” segregation in 
the 1960’s caused segregation in all the other schools 
throughout the district. That type of causal determination 
was rendered unnecessary by this Court’s prior rejection 
of requiring proof as to segregation on a school by school 
basis. 413 TT.S. at 200.

Nor, as asserted by the School Board, did the courts be­
low base their conclusion on the assumption that this 
Court’s opinion established a conclusive presumption of 
an illegal dual system in Denver. (Pet. pp. 13-14) Eather, 
the conclusion of a dual system was based upon the School 
Board’s failure to prove Park Hill to be unrelated to the 
rest of the school district, and their failure of proof in 
rebutting the “common sense” presumption that their sub­



3

stantial segregatory acts had reciprocal effects outside of 
Park Hill. 413 U.S. at 203.

Having found Denver to be an illegally segregated school 
system, the district court ordered the parties to submit 
desegregation plans, ultimately adopting the pupil reassign­
ment plan authored by its consultant. The trial court’s 
plan required extensive preparation of pupils, faculty, ad­
ministration and the community to ensure effective im­
plementation of the decree and a smooth transition to a 
unitary system. That preparation proved effective, as the 
district-wide plan was implemented in September 1974 with­
out incident and remains in effect today.

Those aspects of the district court’s remedial plan about 
which the School Board here complains were affirmed by 
the court of appeals as an appropriate exercise of the dis­
trict court’s discretion in formulating an effective, district­
wide faculty and pupil desegregation remedy. 521 F.2d at 
pp. 476-77, 484-85; App. at 32a-37a, 62a-65a.

In the courts below the School Board did not contest or 
litigate any issue relating to the district court’s continuing 
jurisdiction over the implementation, adjustment or pres­
ervation of its remedial decree. In fact, under the issues 
remanded by the court of appeals the plan is not yet com­
plete. Nor was there any issue raised below as to the trial 
court’s relinquishment of jurisdiction.



4

REASONS FOR DENYING THE WRIT

I.

As to Violation, the Petition Presents No Substantial 
Legal Issues o f General Applicability or Significance.

A. At Most, the Violation Question Relates Only to the
Application of This Court’s Standards to the Partic­
ular Facts of the Denver School District.

The School Board’s quarrel with the application and in­
terpretation of this Court’s Keyes principles by the courts 
below relates merely to the application of those principles 
to Denver’s particular facts. As it presents no issues of 
general applicability or significance, the Petition does not 
comport with the standards of Rule 19 of the Rules of this 
Court.

B. The Petition Asserts No Conflict Am.ong the Circuits 
in Applying Keyes Generally, and There Are None.

The Petition does not rely upon any alleged conflicts 
among the circuit courts of appeals in either interpreting 
or applying this Court’s decision in Keyes. Many such 
courts have now had occasion to consider K eyes*  and it 
is apparently being uniformly applied.

As must be apparent from their Petition, the essence 
of the School Board’s appeal here is not disagreement with 
the lower courts’ utilization of this Court’s mandate, hut 
with the mandate itself and its underlying opinion. The

* See, for example, United States v. School District of Omaha,
521 F.2d 530 (8th Cir. 1975), cert, den.,------U.S. -------; Morgan
v. Kerrigan, 509 F.2d 580 (1st Cir. 1974), cert, denied, 421 U.S. 
963; Oliver v. Michigan State Board of Ed., 508 F.2d. 178 (6th 
Cir. 1974) ( cert, denied, 421 U.S. 963; Brinkman v. OUtigdn, 503 
F.2d 684 (6th, Cir. 1974); Johnson v. San Francisco Unified 
School Dist., 500 F.2d 349 (9th Cir. 1974).



5

School Board’s collateral attack begins upon this Court’s 
prior determination that the quantum of proven illegal 
segregation was substantial, and continues through dis­
agreement with this Court’s rejection of the school by 
school approach to both violation and remedy. Again, the 
School Board’s Petition fails to meet Rule 19’s standards.
C. The Courts Below Properly Decided That Denver 

Was An Illegally Segregated School System.

1. The Controlling Factual Issue Remanded Was 
Conceded by the School Board.

In Part II of its prior opinion, this Court determined 
that proven intentional segregation in Denver affected “ a 
substantial portion of the students, schools, teachers and 
facilities.” 413 U.S. 201. In view of the substantial nature 
of this systematic discrimination, this Court rejected the 
Board’s contention that plaintiffs “must bear the burden 
of proving the elements of de jure segregation as to each 
and every school or each and every student within the 
school system.” Id. at 200. The Court concluded that this 
proven substantial state-imposed segregation

will suffice to support a finding by the trial court of 
the existence of a dual system. Id. at 203.

The only factual issue remanded was whether Denver 
presented one of the “rare” instances

in which the geographical structure of, or the natural 
boundaries within, a school district [has] the effect 
of dividing the district into separate, identifiable and 
unrelated units. Id. at 203.

This Court was also aware that the School Board’s task 
of establishing the separateness would be difficult:

We observe that on the record now before us there 
is indication that Denver is not a school district which



6

might be divided into separate, identifiable and un­
related units. Id. at 203.

On remand, the School Board, as noted in its Petition, 
p. 6, n. 11, did not even attempt to prove that the Park 
Hill area was separate or unrelated, conceding it was not. 
The plaintiffs introduced uncontroverted evidence demon­
strating that Park Hill was an integral part of the school 
district. This evidence considered geography, structure, 
school organization, public transportation, police, fire and 
other municipal services, political, zoning and a multi­
plicity of other relationships firmly linking Park Hill with 
the rest of the school district. The district court therefore 
determined that Park Hill was not a separate, identifiable 
or unrelated unit of the school district. 368 F. Supp. at 
209-10; App. at 277a-78a.

Plaintiffs contended that once the trial court determined 
that Park Hill was not separate, it inexorably followed 
from this Court’s mandate that Denver was a dual school 
system. We still maintain that this is a correct reading 
of this Court’s opinion.

Nevertheless, the School Board insisted that it had a right 
to attempt to rebut the “common sense” conclusion

. . . that racially inspired school board actions have 
an impact beyond the particular schools that are the 
subjects of those actions. Id. at 203.

The School Board thereupon introduced evidence attempt­
ing to prove that its intentional segregatory acts had no 
impact beyond the Park Hill schools. It asserted that if 
it could prove this lack of “ extraterritorial effect,” then 
the trial court could not conclude that Denver was a dual 
system. We believe this issue to have been settled by this 
Court’s determination of the substantial nature of proven



7

Denver discrimination and by its rejection of the need 
for proving de jure segregation in every school. Yet, if 
the Board’s theory were accepted under Part II, it would 
then be necessary to consider the issues remanded under 
Part III of this Court’s opinion as to the “ core city” 
schools. 413 U.S. at pp. 205-213.

2. Both Courts Below, in Considering and Review­
ing the School Board’s Evidence About Extra­
territorial Effect, Found It Unconvincing.

The district court considered all of the School Board’s 
evidence relevant to their assertion that their segregatory 
actions had no extraterritorial effect outside of Park Hill. 
That evidence consisted mainly of the testimony of a 
statistician who attempted to demonstrate the lack of effect 
through statistical studies.

After considering the evidence the district judge con­
cluded :

We have fully considered all of this evidence pre­
sented by defendants, both that offered in this hearing 
and all evidence of record from previous proceedings 
in this case. Insofar as that evidence was offered to 
support defendants’ contention that the Denver school 
district is not a dual system, we conclude that it is 
merely conclusory and is lacking in substance. The 
intended thrust of that evidence has been that segre­
gated conditions in individual schools outside the Park 
Hill area are wholly the product of external factors 
such as demographic trends and housing patterns, and 
are in no way the product of any acts or omissions by 
defendants. We are not persuaded by the evidence 
presented, nor have defendants succeeded in dispelling 
the presumption that the segregative intent of the 
School Board was clearly evidenced by its actions in



Park Hill permeating the entire district. The affirma­
tive evidence is to the contrary, that defendants ac­
tions in Park Hill are reflective of its attitude toward
the school system generally.

The Supreme Court’s viewpoint based on the record 
before it is that the Denver school system is a dual 
system. There can be no doubt as to its view of the 
case in the absence of new and cogent evidence. 368 
F. Supp. at 210; App. 280a-81a.

The court of appeals carefully reviewed the record and 
had no difficulty affirming the trial court’s determination. 
It noted that plaintiffs’ evidence afforded three separate 
bases for disbelieving the School Board’s evidence. 521 
F.2d at 472; App. 17a-18a. The appellate court stated:

On the basis of our review of the record, we cannot 
say that the trial court erred either in choosing to 
disbelieve the School Board’s evidence or in conclud­
ing that the Board failed to overcome plaintiffs’ pnma 
facie case establishing the existence of a dual system 
in Denver. 521 F.2d at 4/2; App. 18a.

Thus contrary to the School Board’s assertions the pro­
ceedings below not only followed this Court’s explicit in­
structions as to the factual issue of the separateness of 
Park Hill, but also fully considered (unnecessarily,^ we 
assert) and rejected on its merits the Board’s assertions 
regarding the absence of extraterritorial effect. This was 
not the result of the courts below applying an erroneous 
standard of proof, as asserted by the Board (Pet. 16, 17), 
but rather of the basically unconvincing nature of the 
board’s evidence.



9

3. The Petition Misstates the Holdings of the Courts 
Below and Is Inconsistent With This Court’s Prior 
Decision.

To the extent that the School Board implies that the 
courts below determined Denver to be a dual system be­
cause they thought that the “Park Hill” acts of intentional 
segregation caused all of the current segregation in Den­
ver’s schools, the assertion is patently ridiculous. It is 
obvious that segregatory acts in the 1960’s could not have 
“ caused” earlier segregation in the core city schools.

It is equally obvious that under this Court’s prior opinion, 
no such findings were either required or appropriate as 
this type of causation analysis leads inexorably back to 
the school-by-school approach to violation explicitly re­
jected by this Court. 413 U.S. at 200.

In fact, the Board’s entire “extraterritorial effect” theory 
was but another attempt to invoke the school-by-school ap­
proach to violation, rather than the system-wide approach 
approved here in Keyes.

The School Board’s efforts, both in the courts below and 
here attempt to collaterally attack and relitigate matters 
settled by this Court’s prior decision, including the deter­
mination that proven segregation in Denver was substantial.

Despite the School Board’s protests it is clear that the 
results below are entirely in accord with this Court’s prior 
opinion. As contemplated, the Board was unable to show 
that Park Hill was separate. And as authorized, the trial 
court then held Denver to be an illegally segregated dual 
system. That conclusion led the trial court, again as con­
templated here, to require district-wide desegregation.



10

II.

As to the Scope o f the Denver Remedy, the Petition 
Seeks to Relitigate Issues Determined by This Court’s 
Prior Opinion.

A. Denver’s Asserted “ Duality With a Difference” Has 
Already Been Rejected by This Court.

The essence of the Board’s complaint is that Denver is 
a “dual system with a difference,” and that the remedy 
should therefore be “ limited to those schools in the system 
which were affected by the acts in Park Hill in the 1960’s.” 
Pet. at pp. 20, 21.

The Board makes this assertion in the face of this Court’s 
prior determination rejecting the legal significance of the 
alleged “difference” :

Of course, where that finding [of a “constructive” dual 
system] is made, as in cases involving statutory 
[“pure” ] dual systems, the school authorities have an 
affirmative duty “to effectuate a transition to a racially 
nondiscriminatory system.’’ 413 U.S. at 203.

And the Board ignores this Court’s mandate that upon 
a determination of Denver to be a dual system,

respondent School Board has the affirmative duty to 
desegregate the entire system “ root and branch.” 413 
U.S. at 213 (emphasis added).

Those pronouncements were made in the course of reject­
ing the same argument that the Board again attempts to 
rekindle here; that all particular violations had already 
been remedied, that the “ scope of the violation determines 
the scope of the remedy,” and hence no further desegre­



11

gation was required beyond the four schools already de­
segregated by district court order.

B. The Board’s Proposed Remedy Formulation Res­
urrects the School-by-School Approach as to the 
Scope of the Remedy.

Similarly, in disregard of this Court’s rejection of the 
school-by-school approach as to violation, 413 U.S. at 200, 
the Board seeks here to reassert that approach to limit the 
scope of the remedy.

Neither of the courts below had any difficulty discerning 
or dealing with this collateral attack upon the law of this 
case. As the court of appeals stated:

Whether a school system is illegally segregated by 
reason of statutory separation of the races or by rea­
son of past segregative acts of school authorities, the 
scope of the remedy must in either case be system-wide. 
521 F.2d at 476; App. 32a-33a.

Not only would the Board’s causation formulation re­
quire a school-by-school determination, its limitation to 
schools “affected by the acts in Park Hill in the 1960’s” 
would automatically prevent desegregation of the core city 
schools, which constitute nearly all of the minority segre­
gated schools remaining after the trial court’s 1969 pre­
liminary injunction.



12

III.

As to the Other Components o f the Remedial Order, 
the Petition Raises No New or Substantial Issues.

A. The Trial Court Adopted the Board’s Oivn Proposals 
As to An Affirmative Action Plan for the Recruit­
ment of Additional Minority Teachers.

In 1969, black and CMcano teachers were 7% and 2% 
of the district’s faculty. By 1973, only 9% of the teachers 
were black, and less than 4% of them were Chicano. Even 
by 1973 there were only 520 black and Chicano teachers 
compared to 3,500 Anglo teachers (PX 921, 922B, 923). 
And minority teachers were still concentrated in minority 
schools. See 521 F.2d at 484, n. 23.

The School Board’s own remedial proposal not only rec­
ognized the need for faculty desegregation but also pro­
posed an affirmative action plan for the recruitment of addi­
tional minority teachers. The district court essentially 
adopted this aspect of the Board’s plan:

The ordered recruitment program for minority per­
sonnel is in substance the recruitment program con­
tained in the School District’s own desegregation plan 
as submitted to the court. Although the District’s pro­
posal failed to state its recruitment goals, Denver’s 
superintendent of schools testified at trial that the 
District’s affirmative action program would aim at 
achieving a racial-ethnic composition among profes­
sional staff that approximates the composition of the 
students in the District. We believe that the court’s 
faculty and staff desegregation orders were proper and 
we affirm. 521 F.2d 483-84; App. 64a-65a.

The appellate court also properly characterized this com­
ponent as “measures to ensure faculty desegregation” (521



13

F.2d at 483; App. 64a), in view of the low number and 
percentage of minority faculty members.

Effective faculty desegregation has long been considered 
by this Court as an important component of conversion to 
a nondiscriminatory system, and presents no new issue 
here. United States v. Montgomery County Bd. of Educ., 
395 U.S. 225; Bradley v. School Bd. of City of Richmond, 
382 U.S. 103; Rogers v. Paul, 382 U.S. 198.

B. There Is No Factual or Legal Basis for the Conten­
tion That the District Court Erroneously Employed 
Racial Ratios in Assigning Students.

The district judge was well aware of Swanns proscrip­
tion against “rigid adherence to percentage figures.” 380 
F. Supp. 686, App. 170a-171a. He employed the ratio as 
“guidelines only” in adopting a. student assignment plan 
which allowed a variety of resulting racial composition in 
the desegregated schools ranging from 40% to 80% Anglo. 
Thus there was no rigid requirement that all schools re­
flect the first racial composition of the school community, 
and the court of appeals affirmed, 521 F.2d at 477; App. 35a.

C. None of the Issues Involved in the Pasadena Case 
Were Litigated Below.

As an obvious afterthought following this Court’s grant­
ing of certiorari in the Pasadena case, Spangler v. Pasadena 
City Board of Education, 519 F.2d 430 (9th Cir. 1975), 
cert, granted, 44 U.S.L.W. 3279 (No. 75-164, Nov. 11, 
1975), the School Board attempts to contest the possible 
future alteration of the decree under the district court’s 
exercise of its continuing jurisdiction.

Unlike the situation in Pasadena, the School Board here 
has neither raised nor litigated below any issue relating to 
the trial court’s continuing jurisdiction.



14

Such attempted litigation is obviously premature where 
the final shape of the remedy is yet to be determined under 
the issues remanded by the court of appeals. 521 F.2d at 
479-480; App. 42a-43a, 45a-48a.

Thus, there is no basis for the Board’s attempted oppor­
tunism, and disposition of the Denver Board’s petition 
need not await this Court’s decision in Pasadena.

CONCLUSION

Respondents Keyes, el al. respectfully assert that on the 
basis of the law of this case and the lack of any substantial 
new issues presented by the Denver School Board, their 
petition for certiorari should be denied forthwith, so that 
the district court may immediately begin the formulation 
of the further desegregation plan required by the opinion 
of the court of appeals.

Respectfully submitted,

G ordon G. Greiner

R obert T. C onnery

500 Equitable Building 
730 17th Street 
Denver, Colorado 80202

J ack  Greenberg

J am es M. N abrit , III 
10 Columbus Circle 
New York, New York 10019

Attorneys for Keyes, et al.



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