Keyes v. School District No. 1 Denver, CO. Brief for Respondents
Public Court Documents
October 4, 1971
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Brief Collection, LDF Court Filings. Keyes v. School District No. 1 Denver, CO. Brief for Respondents, 1971. 52c63ff3-b99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/43a093ed-0ed3-42f5-a590-dd2a997e4e9d/keyes-v-school-district-no-1-denver-co-brief-for-respondents. Accessed May 03, 2025.
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IN THE
Supreme Court of tfje Umte& States
October Term 1971
No. 71-507
Wilfred Keyes, et al,
vs
School D istrict N o . 1, D enver
Colorado, et al,
Petitioners,
Respondents.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
BRIEF FOR RESPONDENTS
WILLIAM K.RIS
1140 Denver Club Building
Denver, Colorado 80202
THOMAS E. CREIGHTON
BENJAMIN L. CRAIG
MICHAEL H. JACKSON
1415 Security Life Building
Denver, Colorado 80202
Attorneys for Respondents
BRAD FO R lS^ S jillN T IN G , D E N V E R
1
TABLE OF CONTENTS
Opinions Below ............. 1
Jurisdiction ..................... ............................................ 1
Constitutional Provision Involved ............................... 1
Question Presented ........... 2
Statement ......... 2
1. PROCEDURAL HISTORY .......................... 2
2. THE CITY AND COUNTY OF DENVER
AND SCHOOL DISTRICT NO. 1 ................ 7
A. Political System .......................... 7
B. Geography ....... 9
C. Demography ............................................ 9
3. DENVER’S SCHOOLS ................. 13
A. General Background ......... 13
B. Pupil Assignment Policies and Practices .... 16
C. Measures Utilized by the School District
to Relieve Overcrowding............. 23
(1) Construction of New Schools........ . 24
(2) Construction of Additions to
Existing Schools ............... 29
(3) Mobile Units .............. 30
Page
11
Page
(4) Subdistrict Boundary Changes.......... 31
a. Columbine Elementary School .... 32
b. 1956 Secondary School Boundary
Changes ....................................... 32
c. 1962 Elementary School
Boundary Changes ....................... 33
d. 1962 Junior High School
Boundary Changes....... .............. 34
e. 1964 Boundary Changes.............. 35
(5) Double Sessions..................... 36
(6) Transportation Out to Relieve
Overcrowding .................. 37
D. School District Policies Regarding Racial
Imbalance .................................................. 37
E. School District Resources.......................... 47
(1) School Facilities............................... 47
(2) Teachers ........................................... 47
a. Assignment Practices.................. 47
b. Experience of Teachers.............. 49
c. Transfers ..................................... 50
(3) Curricula........................................... 50
(4) Dollar Inputs................. ................... 50
F. Educational Results—Achievement.......... 51
G. Remedy...................................................... 52
Summary of Argument.................................................. 59
Argument ................................................................... 63
I. SUMMARY OF APPLICABLE
CONSTITUTIONAL PRINCIPLES .............. 63
A. INTRODUCTION ...... 63
B. ELEMENTS OF A CONSTITUTIONAL
VIOLATION ........................................... 66
C. THE BURDEN OF PROOF.................... 70
II. RACIAL IMBALANCE IN DENVER
PUBLIC SCHOOLS WAS NOT CAUSED
BY STATE ACTION..................................... 72
A. THE COURTS BELOW CORRECTLY
FOUND NO STATE-IMPOSED SEG
REGATION IN THE CORE CITY
SCHOOLS ................................................ 73
1. The Findings Regarding the Core City
Schools were Fully Supported by the
Evidence and were Correctly Sustained
by the Court of Appeals...................... 73
2. The Policy of the Denver School District
has been Nondiscriminatory
Throughout ......................................... 79
3. The Courts Below Correctly Allocated
the Burden of Proof............................. 82
iii
Page
IV
B. THE ONLY ACTIONABLE SEGREGA
TION FOUND AS TO THE RESOLU
TION SCHOOLS WAS THE RESCIS
SION OF THREE RESOLUTIONS, A
FINDING WHICH IS ERRONEOUS AS
A MATTER OF LAW .......................... 88
1. The Findings Regarding the Three
Elementary Schools and the Junior
High School did not Include a Finding
of Present Segregative Effect and do
not Support a Finding of Actionable
Segregation ......................................... 88
2. The Findings as to the Four Resolution
Schools were Ultimately Used by the
Trial Court Only as a Basis for Finding
Segregatory Intent in the Rescission of
the Unimplemented Racial Balancing
Resolutions ......................................... 93
3. The Trial Court Erred in Concluding
that the Rescission of the Resolutions
Was an Act of State-Imposed
Segregation in and of Itself .............. 96
C. THE SCOPE OF THE REMEDY IS
LIMITED BY THE EXTENT OF
A VIOLATION ..................................... 99
HI. THE NEIGHBORHOOD SCHOOL POLICY,
AS APPLIED IN DENVER, DOES NOT
OPERATE TO DEPRIVE ANY PUPIL OF
AN EQUAL EDUCATIONAL OPPORTUN
ITY, AND THE HOLDING OF THE COURT
OF APPEALS TO THAT EFFECT SHOULD
BE AFFIRMED ................................................ 101
Page
V
Page
A. INTRODUCTION
1. Neighborhood School Policy—
Generally ................... 101
2. Equality of Educational Opportunity .. 102
3. Points Argued ........................... 103
B. THE SCHOOL DISTRICT DID NOT
CAUSE THE ALLEGED INFERIOR
ITY IN THE COURT-DESIGNATED
SCHOOLS ................................................ 104
1. Summary of District Court Findings
that Low Test Scores Evidenced
Inferior Schools, that Racial and
Ethnic Concentrations Caused Infer
ior Schools, but that the Concentrations
were not Caused by the School District 104
2. The Court of Appeals, in View of the
Trial Court’s Findings, Correctly Re
versed, Finding No State Action
Causing the Educational Outcomes at
the Schools in Question...................... 106
(a) The Trial Court had Found that
the School District did not Cause
the Racial Imbalance.................. 106
(b) The Court of Appeals Correctly
Based its Reversal of the District
Court on the Absence of Findings
of Causal Relationship................ 108
VI
(c) The Court of Appeals did not
Require a Showing of Racial Pur
Page
pose, Whether or not it is
Required ..................................... 109
(d) The Neighborhood School Policy
does not Operate as a Racial
Classification ...... ........................ 110
3. The Court-Designated Schools were
Located, Built, and Assigned Atten
dance Areas Without Any Segregatory
Purpose or Effect, and the School
District has done Nothing Since to
Affect Their Racial Composition....... I l l
4. Allocations of Resources to Core Area
Schools were Equal or Greater............ 112
C. ON TWO OTHER GROUNDS THE DIS
TRICT COURT’S JUDGMENT
SHOULD HAVE BEEN REVERSED .... 114
1. Achievement Test Scores are not a
Valid Basis for Comparing Educa
tional Opportunity among schools..... 115
2. The Conclusion that Racial or Ethnic
Concentrations are the Principal Cause
of “Inferior” Schools is not Supported
by Expert Opinion Relevant to Denver
or by any Other Competent Evidence .. 119
Vll
D. EDUCATIONAL DIFFICULTIES
ARISING FROM CIRCUMSTANCES
NOT CAUSED BY STATE ACTION
ARE NOT WITHIN THE POWER OF
FEDERAL COURTS TO RESOLVE;
THE REMEDY FOR EDUCATIONAL
PROBLEMS AS DISTINCT FROM
CONSTITUTIONAL VIOLATIONS
MUST BE LEFT TO THE PLENARY
POWERS OF SCHOOL
Page
AUTHORITIES ....................................... 122
1. Absent a Constitutional Violation,
There is no Authority for a Court
to Order a Remedy............................... 122
2. The Scope of the Remedy is Limited by
the Civil Rights Act of 1964 as to
“De Facto Segregation” ........ ............. 123
3. The Denver School District has Con
stantly been Searching for Better
Means to Improve Educational Results 124
4. Even if ihe Courts had the Power to
Intervene in Solving the Educational
Problems and the Competence to
Prescribe Effective Educational
Measures, the Remedy Urged by Peti
tioners—Racial and Ethnic Balancing
—Would Not Meet the Tests of Either
Practical Effectiveness or Recognition
of Competing Values.......................... 126
Conclusion 132
Vlil
TABLE OF AUTHORITIES
Cases: Page
Alexander v. Holmes County Board of Education,
396 U.S. 19 (1970) ................................................. 64
Barksdale v. Springfield School Committee,
237 F.Supp. 543 (D.C. Mass. 1965), rev’d,
348 F.2d 261 (1st Cir. 1965) .............................72, 122
Bell v. School City of Gary, 324 F.2d 209
(7th Cir. 1963), cert. den. 377 U.S. 924
(1963) .........................................................69,101,122
Bell v. School City of Gary, Indiana,
213 F.Supp. 819 (N.D. Ind. 1963) ......................... 71
Bolling v. Sharpe, 347 U.S. 497
(1954) ............................................. 85
Brown v. Board of Education, 347 U.S. 483
(1954) ..............16, 25, 63, 64, 65, 67, 68, 74, 80, 131
Brown v. Board of Education, 349 U.S. 294 (1955) ..64, 68
Brown v. Board of Education, 139 F.Supp. 468
(D.C. Kan. 1955) .................................................... 69
Burton v. Wilmington Parking Authority,
365 U.S. 706 (1961) ................................................ 109
Capitol Federal Savings and Loan Association v. Smith,
136 Colo. 265, 316 P.2d 252 (1957 )...................... 15
Craggett v. Board of Education of Cleveland,
234 F. Supp. 381 (N.D. Ohio 1964) ...................... 71
IX
Deal v. Cincinnati Board of Education, 369 F.2d 55
(6th Cir. 1966), cert. den. 389 U.S. 847
Page
(1967) ..................................................69,71,101,122
Deal v. Cincinnati Board of Education, 244 F.Supp.
572 (S.D. Ohio, W.D. 1965) ................................. 71
Downs v. Board of Education, 336 F.2d 988 ( 10th
Cir, 1964), cert. den. 380 U.S. 914
(1965) ...............................69, 70, 72, 80, 101, 105, 122
Gayle v. Browder, 352 U.S. 903 (1956)................. . 68
Green v. County School Board,
391 U.S. 430 (1 9 6 8 )...................................87, 100, 131
Hobson v. Hansen, 269 F.Supp. 401 (D. D.C.
1967) .....................................................................71,84
Holmes v. City of Atlanta, 350 U.S. 879 (1955)....... 68
Hunter v. Erickson, 393 U.S. 385 (1969) .................. 97
James v. Valtierra, 402 U.S. 137 (1970 ).................... 97
Lynch v. Kenston School Dist., 229 F.Supp. 740
(N.D. Ohio E.D. 1964) .................. 72
Mayor and City Council of Baltimore City v. Dawson,
350 U.S. 877 (1955) ................................................ 68
McLaurin v. Okla. State Regents, 339 U.S. 637
(1950) ..................................................................... 131
Muir v. Louisville Park Theatrical Association,
347 U.S. 971 (1954) 68
X
Northcross v. Board of Education, 333 F.2d 661
Page
(6th Cir. 1964), cert. den. 370 U.S. 944 (1964) .... 72
Reiman v. Mulkey, 387 U.S. 369 (1 9 6 7 )................97, 98
Shelley v. Kraemer, 334 U.S. 1 (1948) ........................ 15
Spencer v. Kugler, U.S____ _ 30 L.Ed.2d 723
(1972) .....................................................................64-65
Springfield School Committee v. Barksdale, 348 F.2d
261 (1st Cir. 1965) ..................................... 69, 101, 130
Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971) ....... 6, 64, 65, 66, 67, 68, 77, 87, 88,
92, 98,99,122, 123
Taylor v. Board of Education of City School District of
New Rochelle, 191 F.Supp. 181 (S.D.N.Y. 1961),
appeal dismissed, 288 F.2d 600 (2nd Cir. 1961),
195 F.Supp. 231 (S.D.N.Y. 1961), aff’d 294 F.2d
36 (2nd Cir. 1961), cert. den. 368 U.S. 940
(1961) .................................................................70, 100
Willis v. Burch, et al, Civil Action No. B-71888,
Denver District Court (1964) ............................... 40
Wright v. Rockefeller, 376 U.S. 52 (1964) ................ 71
Statutes and Constitutional Provisions:
Federal:
U.S. Const, amend. X IV ................1, 69, 110, 114, 115
1964 Civil Rights Act, 42 U.S.C. §2000c.............. 123
1964 Civil Rights Act, 42 U.S.C. §2000c-6 (a) ..... 4
XI
1964 Civil Rights Act, 42 U.S.C. §2000c-6 (a) (2).. 124
Fed. R. Civ. P. 52 .......................... 2, 66, 74, 75, 83, 108
State:
Colorado’s Enabling Act, COLO. REV. STAT.,
Vol. 1, p. 52 (1963) ......................................... 15-16
CONST. COLO., Art. IX, § 8 ..................13, 14, 39, 64
Page
CONST. COLO., Art. XX, § 7 ........................... .. 8
COLO. REV. STAT. ANN. §25-1-1 (1963) .......... 16
COLO. REV. STAT. ANN. §25-2-3 (1963) .......... 16
COLO. REV. STAT. ANN. §25-3-1 et seq. (1963) 16
COLO. REV. STAT. ANN. §69-7-1 et seq. (1963) 16
COLO. REV. STAT. ANN. §127-17-14 (1963) .... 49
COLO. REV. STAT. ANN. §139-21-4(5) (1963) 9
COLO. SESS. LAWS, p. 489 (1959) .................... 16
Other Authorities:
D. Armor, The Evidence on Busing, The Public
Interest, No. 28, Summer 1972, p. 90 ............... 128
A. Bickel, THE SUPREME COURT AND THE
IDEA OF PROGRESS, (1970) ................... ......... 129
Coleman on the Coleman Report, Educational
Researcher, March, 1972, Vol. 1, No. 3, p. 13....118,128
xu
Page
Coleman, et al., Equality of Educational Opportunity
(U.S. Office of Education, 1966) ........................... 54
Dimond, School Segregation in the North: There is
but One Constitution, 7 Harvard Civil Rights—
Civil Liberties Law Review 1 (1972) ..........83, 84, 118
N. Glazer, Is Busing Necessary?, Commentary, March
1972, p. 50;___ CONG. REC_____(daily ed.
Mar. 13, 1972, S-3855) ......................................... 109
Mosteller and Moynihan, ON EQUALITY OF
EDUCATIONAL OPPORTUNITY,
Vintage Books, New York (1972) ................117, 118
Inequality in Education, Center for Law and Education,
Harvard University, (Aug. 3, 1971)........................ 129
IX Wigmore, Evidence, §2486 (1940 ed.) 85
IN THE
Supreme Court of tf>e fim teb
October T erm 1971
No. 71-507
W ilfred Keyes, et al,
vs
School D istrict No. 1, Denver
Colorado, et al,
Petitioners,
Respondents.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
BRIEF FOR RESPONDENTS
OPINIONS BELOW
The principal opinions of the courts below are adequately
set forth in the Brief for Petitioners.
JURISDICTION
The jurisdictional statement is adequately set forth in the
Brief for Petitioners.
CONSTITUTIONAL PROVISION
INVOLVED
This case involves the Equal Protection Clause of the
Fourteenth Amendment to the Constitution of the United
States.
— 2 —
QUESTION PRESENTED
The sole question presented by Petitioners is: Whether
petitioners are entitled to obtain system-wide relief to deseg
regate the Denver Public Schools. Four legal theories are
propounded thereunder by Petitioners.
STATEMENT
The Brief for Petitioners contains a complex and lengthy
statement. Portions thereof consist of preliminary findings
of fact by the district court made following a hearing on
motion for preliminary injunction, which are not sup
ported by the ultimate findings made after a full hearing
on the merits; portions consist of reiteration of some find
ings of fact and additional new findings of fact by the trial
court after the hearing on the merits; portions pertain to as
serted inferences from facts in evidence but not adopted by
the trial court in its findings of fact; portions consist of con
clusions of counsel but not of the lower courts; and other
portions contain argumentative matters. For these reasons,
respondents present a detailed statement to put this case in
proper chronology and perspective.
1. PROCEDURAL HISTORY.
This action was commenced in the United States District
Court for the District of Colorado on June 19, 1969, by
Anglo (white, excluding Hispano), Negro, and Hispano
(Spanish surnamed) parents of children attending public
schools in Denver, Colorado, suing individually, on behalf
of their minor children, and, under Rule 23, Federal Rules
of Civil Procedure, on behalf of classes of persons similarly
situated. They alleged violations of their constitutional
rights and sought reinstatement of certain rescinded resolu
tions of the Board of Education, desegregation of certain
schools alleged to have been segregated by acts of the Board
— 3 —
of Education, desegregation of the entire district, and other
relief.
The complaint contained two separate causes of action.1
The first cause of action addressed itself only to a small
number of schools in a portion of northeast Denver known
as Park Hill, and alleged that the rescission of three resolu
tions of the Board of Education numbered 1520, 1524, and
1531, containing plans for stabilization of the racial and
ethnic pupil composition of those schools (“resolution
schools”) in northeast Denver was unconstitutional and
void and prayed that the resolutions be reinstated by order
of the court.
The three resolutions contained plans for reassignment of
pupils from eight northeast Denver neighborhood schools to
other schools more distant. Only four of the eight were pre
dominantly Negro and none was predominantly Hispano.
The second (main) cause of action alleged the existence
of racially and ethnically segregated residential patterns in
Denver, and with knowledge thereof, the superimposition
by the Board of a “neighborhood school policy” resulting in
state imposed segregation on the basis of race and ethnicity
at schools in the central or core city area of Denver (“core
city schools”) and an unequal allocation of facilities, re
sources and faculty to predominantly minority schools of
the school district.
Although various forms of relief were sought, the Ques
tion Presented herein by petitioners is limited to the refusal
of the lower courts to order system-wide “desegregation” in
the Denver schools.
’Joint Appendix, pp. 2a-70a, hereinafter cited A. For ease of reference,
the citation conventions adopted by petitioners in footnote 3 of their
brief will be used in this brief. The Appendix to Petition for Certiorari
is hereinafter cited as “A.P.”, the Brief for Petitioner is cited as
“Pet. Br.”
— 4 —
Only the first cause of action was considered on motion
for preliminary injunction to reinstate and implement the
three rescinded resolutions. After hearing in July of 1969,
the district court granted the preliminary injunction, hold
ing the rescission unconstitutional.2
On application for stay of the preliminary injunction, the
Tenth Circuit Court of Appeals remanded the case to the
district court to make its injunction more specific and for
consideration of the applicability of section 407(a) of the
1964 Civil Rights Act, 42 U.S.C. §2000c(6) (a).3
On remand the district court held section 407(a) of the
Civil Rights Act of 1964 inapplicable and made its injunc
tion more specific by ordering implementation of the resolu
tions as to five elementary schools, only three of which were
predominantly minority and the one junior high school they
fed, a total of only four minority schools. It reserved ruling
on the second minority junior high school involved in the
resolutions until trial on the merits.4 The court also held
that East High School, one of the eight resolution schools,
was not within the ambit of a preliminary injunction be
cause of section 407(a) and because the evidence failed to
disclose a condition at East which merited a preliminary in
junction (East was and has remained predominantly
Anglo.)5
On August 27, 1969, the court of appeals stayed the pre
liminary injunction until further order of court stating that
the important and difficult questions presented in the case
2Opinion of the District Court of July 31, 1969, 303 F.Supp. 279,
A.P. 18a and 19a.
3Opinion of the Court of Appeals of August 5, 1969. A. 455a.
4Opinion of the District Court of August 14, 1969, 303 F.Supp. 289,
296, A.P. 37a.
5Opinion of the District Court of August 14, 1969, 303 F.Supp. 289,
299, A.P. 43a.
■— 5 —
should not be decided on application for preliminary injunc
tion and questioned the piece-meal consideration of the
case,®
On August 29, 1969, the Friday before the opening of
school on September 2, 1969, Mr. Justice Brennan, Acting
Circuit Justice, reinstated the preliminary injunction on the
grounds that the stay was improvidently granted, the court
of appeals not having said that the grant of the preliminary
injunction was an abuse of discretion.6 7 8
The court of appeals on September 15, 1969, denied a
motion to amend its August 27, 1969, stay order to specifi
cally hold that the district court abused its discretion in
granting the preliminary injunction, the schools having
opened in compliance therewith and any change at that time
would have had a disruptive effect on them.s
After trial on the merits from February 2 to February 24,
1970, the district court, in an opinion dated March 21,
1970, “considered the explanatory evidence offered at trial”
(313 F.Supp. 61, 64, A.P. 46a) as to the first cause of ac
tion and made specific findings of fact and conclusions of
law concerning the resolution schools reiterating the finding
of unconstitutional rescission of the three resolutions. The
court made the injunction permanent and included therein
the second minority junior high school and one high school
(East High), although it was a predominantly Anglo
school. The court further held that the racial imbalance in
the schools which were the subject of the second cause of ac
tion (core city schools) was not caused by state action, but
that the schools which were over 70% Negro or over 70%
6Opinion of the Court of Appeals of August 26, 1969. A. 459a.
1Keyes v. School District No. One, 396 U.S. 1215 (August 29, 1969).
A. 463a.
8Opinion of the Court of Appeals of September 15, 1969. A. 467a.
— 6
Hispano were not providing an equal educational opportun
ity in violation of the Fourteenth Amendment.9
The district court issued a “Decision re Plan or Remedy”
on May 21, 1970, after a further hearing on remedies and
ordered a plan of massive compensatory education and the
desegregation of seventeen “court designated” schools—
fourteen elementary, two junior high and one senior high,
all located in the core city area of Denver—-which it con
cluded were not providing an equal educational opportunity,
although not segregated by state action.10 These included
two elementary and one junior high resolution schools.
A Final Decree and Judgment was entered on June 11,
1970,11 which was appealed by both parties. After a stay by
the court of appeals12 pending decisions of this Court in
Swann v. Charlotte-Mecklenburg Board of Education and
other cases was vacated by this Court, per curiam,13 follow
ing the announcement of its decision in Swann14 * and other
cases, the court of appeals issued its opinion on June 11,
1971.13
The court of appeals affirmed the holding of the district
court on the first cause of action, not on the grounds of un
constitutional rescission of the three resolutions, but instead
on the basis of certain school districting in the Park Hill
area involving only four predominantly minority schools; af
°Opinion of the District Court of March 21, 1970, 313 F.Supp. 61,
A.P. 44a.
“ Opinion of the District Court of May 21, 1970, 313 F.Supp. 90,
A.P. 99a.
“ A. 1970a.
“ Opinion of the Court of Appeals of March 26, 1971, A. 1981a.
13Keyes v. School District Number One, Denver, Colorado, (April
26, 1971). A. 1984a.
14402 U.S. 1 (1971).
“ Opinion of Court of Appeals of June 11, 1971, 445 F.2d 990, A.P.
122a.
firmed the findings of the district court that the core city
schools which were the subject of the second cause of action
were not segregated by state action; and reversed the judg
ment of the district court decreeing desegregation of the
court designated schools on the ground that its decree was
beyond the power of the court, there having been no state
action causing the “de facto” segregation and therefore no
constitutional violation.
Plans to implement the district court’s Final Decree and
Judgment regarding desegregation of the court designated
schools were formulated and approved by the district court
prior to the announcement of the opinion of the court of ap
peals on June 11, 1971, but were not implemented because
of the reversal of the district court’s decision in the interim.
As a result of an opinion of the court of appeals issued on
August 30, 1971,1(3 on motion for clarification, the district
court ordered additional cross-busing to further reduce mi
nority percentages at two elementary schools hi northeast
Denver* 17 which were determined by the court of appeals in
its June 11, 1971, opinion to be “de jure” segregated inde
pendently of the rescission of the three resolutions of the
Board of Education. That order was implemented in Janu
ary of 1972, after this Court granted certiorari on January
17,1972.
2. THE CITY AND COUNTY OF DENVER
AND SCHOOL DISTRICT NO. 1.
A. Political System
The City and County of Denver was created as a home
rule city by amendment to the Constitution of Colorado in
1902 and has a mayor-council form of government. Article
“ Opinion of Court of Appeals of August 30, 1971. A. 1987a.
17Stedman and Hallett, both of which were resolution schools.
XX of the Constitution of Colorado provides in pertinent
part:
“Section 7. City and county of Denver single
school district—consolidations.—The city and
county of Denver shall alone always constitute
one school district, to be known as District No. 1,
but its conduct, affairs and business shall be in
the hands of a board of education consisting of
such numbers, elected in such manner as the gen
eral school laws of the state shall provide.. . .
“Upon the annexation of any contiguous mu
nicipality which shall include a school district or
districts or any part of a district, said school dis
trict or districts or part shall be merged in said
‘District No. 1,’ which shall then own all the prop
erty thereof, real and personal, located within the
boundaries of such annexed municipality, and
shall assume aind pay all the bonds, obligations
and indebtedness of each of the said included
school districts, and a proper proportion of those
partially included districts . . . . ”
The respondent School District No. 1 was thus created by
the Constitution of Colorado along with the City and
County of Denver in 1902. The school district is governed
by a seven-member board of education elected for staggered
six-year terms and is both fiscally and politically indepen
dent from the city and county. The boundaries of these two
political subdivisions are identical. Until 1967 the City and
County of Denver had exclusive control over annexation of
surrounding lands into the city and county and, by virtue of
the Constitution, into School District No. 1. Since then, con
— 9
templated annexations must be approved by School District
No. I.18
B. Geography
Geographically, Denver is roughly square, (See map, Ap
pendix to respondents’ Brief in Opposition to Petition for
Certiorari) approximately 11 miles north to south and 9Vz
miles east to west, or approximately 100 square miles. The
South Platte River flows from south to north curving to the
west near the center of the city. The principal business and
commercial area is located in the center of the city.
Denver’s major growth has been to the east and south
over the past 25 years, much of it by territorial annexation
of undeveloped land, subsequently developed primarily for
residential uses, neighborhood business and suburban shop
ping centers. The annexations to Denver since World War
II have totaled approximately 40 of Denver’s present 100
square miles. DIX L, A. 2148a; DX HK, A. 2158a; and PX
20, Map No. 2, A. 2018a.
C. Demography
The city of Denver is most densely populated near its cen
ter. In the early 1940’s, the relatively small Negro popula
tion lived in a rather small area immediately north of the
center of the city, commonly called “Five Points”. A.P. 47a.
Hispanos generally lived further to the north, as well as to
the south and west of the city’s center. After World War II,
the Negro population increased in size substantially and,
supplemented by immigration from other areas of the coun
try, migrated to the east.
A large number of the Negroes who came to Denver after
the war were from the rural South, unskilled, partially edu
18Colorado Revised Statutes 1963, §139-21-4(5).
— l o
cated, burdened by traditions of legally imposed inequality,
and unable to compete successfully. PX 20, A. 2001a.
A large number of the Hispanos came from New Mexico
and southern Colorado, forced to the city by the closing of
mines, the seasonal nature of agricultural work and mecha
nization of farms, bringing value patterns and cultural char
acteristics which interfered with adjustment to urban life.
PX 20, A. 2002a.
The change in population is reflected by the following
s t a t i s t i c s : 19
A n glo N egro H ispano O thers T otal
Y ear N o . % N o . % N o . % N o . % Population
19 3 0 2 7 9 ,8 1 4 9 7 .2 7 ,2 0 4 2 .5 In c l. in O th e rs 843 0 .3 2 8 7 ,8 6 1
1940 313,810 9 7 .3 7 ,3 8 6 2 .4 In c h in A n g lo 7 6 6 0.3 3 2 2 ,4 1 2
195 0 3 9 7 ,4 9 1 9 5 .6 1 5 ,0 5 9 3 .6 In c l. in A n g lo 3 ,2 3 6 0 .8 4 1 5 ,7 8 6
1960 3 9 8 ,3 3 2 8 0 .7 3 0 ,2 5 1 6.1 6 0 ,2 9 4 12 .2 5 ,0 1 0 1.0 4 9 3 ,8 8 7
1970 3 7 1 ,8 4 2 7 2 .3 4 7 ,0 1 1 9.1 8 6 ,3 4 5 16.8 9 ,4 8 0 1.8 5 1 4 ,6 7 8
Following World War II, the Negro population began to
migrate eastward and by 1950 had reached York Street, a
main north-south thoroughfare. Between 1950 and 1960,
the migration continued eastward from York Street to Colo
rado Boulevard, another principal north-south six-lane tho
roughfare which the trial court recognized as a natural di
viding line. 303 F.Supp. 282 and 290, A.P. 4a, 21a. In the
early 1960’s, the Negro migration continued to the east of
Colorado Boulevard into a middle class residential area
known as Park Hill and on to the easterly city limits. 313
F.Supp. 64, A.P. 47a.
The change in the Negro population between York Street
and Colorado Boulevard is roughly reflected in the follow
ing figures:20
“ Source. U.S. Bureau of Census.
20PX 38, Table 3, p. 6, A. 2116a; U.S. Bureau of Census for 1970
figures.
— 1 1 -
Negro Total Percent
Year Population Population Negro
1940 86 12,482 0.7
1950 898 16,028 5.6
1960 8,715 17,216 50.6
1970 10,506 15,047 69.8
The Park Hill population changes, Colorado Boulevard
eastward to Quebec Street, are shown by the following
figures:21
Negro Total Percent
Year Population Population Negro
1950 54 20,201 0.3
1960 566 32,679 1.7
1966 12,222 32,944 37.1
1970 18,516 36,893 50.2
The 1966 census of the Park Hill area was conducted by
petitioners’ witness Bardwell in a study for the City and
County of Denver (not the School District), wherein he
made the following concluding remarks:
“If one adopts the position that a balance and sta
ble mixture of Negro and white residents in Park
Hill is a desirable public goal, the results of the
1966 census are not encouraging. There is ample
evidence that the Negro movement into Park Hill
is persistent and growing in momentum. The re
sults suggest that a massive shift in racial compo
sition in new residents moving into the area will
be required to reverse this trend.
“A number of factors suggest a continuing and
mounting pressure for school facilities. The aver-
21PX 38, Table 4, p. 6, A. 2116; U.S. Bureau of Census for 1970
figures.
— 12
age size Negro family in the 1966 census is about
one-fourth larger than the white family in the
1960 census. This disparity is even more pro
nounced if the average white family in the 1966
census is used. Moreover, there is a relatively
high vacancy rate in ‘transitional’ areas in Park
Hill. These factors, together with the prospect of
higher proportion of Negroes in Park Hill, point
to an impact on school populations which is likely
to be more severe than that experienced to date.”
PX 38, p, 23, A. 2116a.
The Hispano population of the city of Denver also mi
grated but over a larger and less well-defined area, generally
north and west of the city’s center. The record does not re
flect the Hispano movement as clearly as it does the Negro
movement. An example which is typical, however, is illus
trated by Boulevard Elementary School, in an older section
of west Denver, which in 1946-1947 had an enrollment of
576 whites (93.4% ), no Negroes and 31 Hispanos
(6.6%). PX 336, A. 2084a. The 1969-1970 enrollment for
Boulevard was 118 Anglo (30.3% ), 2 Negro (0.5% ) and
269 Hispano (69.1%). DX S-l, A. 2166a. The older part
of the school was demolished and not replaced prior to
1969.
The Five Points area and the Hispano residential areas
just north and west of the city’s center had the lowest me
dian family income and the lowest adult educational attain
ment level in 1960. The Park Hill area was near the median
of family income for the same year, and the areas in the
south and southeast parts of the city showed the highest me
dian family income. PX 20, Map No. 5.
Population mobility was highest in the area of the core
city schools. As examples, Emerson Elementary School and
Morey Junior High School each experienced pupil popula
13 —
tion mobility of over 100% during a single school year.
Oberholtzer, A. 1361a.
In summary, Denver experienced normal growth prior to
World War II, but shared in the dramatic postwar popula
tion movement to the cities, perhaps more than some cities
because its territorial annexation policy in the 1940’s,
1950’s and 1960’s enabled it to accommodate more of the
population influx than some metropolitan areas where
growth has been primarily in the suburbs.
3. DENVER’S SCHOOLS
A. General Background
At the time the action was commenced, School District
No. 1 operated 118 schools consisting of 92 elementary
schools, 15 junior high schools, 9 senior high schools includ
ing 2 junior-senior high schools, an opportunity school and
a metropolitan youth education center.
At the beginning of the school year 1968-69, immediately
prior to the commencement of this action, Anglo students
were enrolled in all 92 elementary schools, Negro students
in 78, and Hispano students in 88. Anglo students were en
rolled in all 15 junior high schools, Negro students in 14 of
the 15, and Hispano students in all 15. Anglo and Hispano
students were enrolled in all 9 senior high schools and
Negro students in 8 of the 9. PX 242, A. 2051a; PX 273,
A. 2075a; and PX 302, A. 2079a.
Prior to 1947, a racial and ethnic survey had been taken
annually by the school district. Oberholtzer, A. 1309a. When
Kenneth E. Oberholtzer took office as Superintendent of
Schools that year, there was brought to his attention the ex
istence of published reports of racial data and the provisions
of the Constitution of Colorado, Article IX, Section 8,
which provides in pertinent part:
14
“Section 8. Religious test and race discrimination
forbidden— . . . No sectarian tenets or doctrines
shall ever be taught in the public schools, nor
shall any distinction or classification of pupils be
made on account of race or color.”
The superintendent sought and received advice of counsel
(A. 1309a) and was advised that the survey conflicted with
the constitutional provision. He thereupon directed that the
practice be discontinued. A. 1309a. This continued as the
policy of the administration and the Board until 1962, when
racial and ethnic surveys of pupils and teachers were made
in May of that year as a result of the need to have such data
available for the Office of School-Community Relations and
the Special Study Committee created that year. A. 1352a.
These surveys were made annually thereafter by observa
tions of pupils in the classroom in the fourth week of Sep
tember in each year. No indication of race appeared on the
individual records of the pupils.
The time frame covered by this lawsuit coincides approxi
mately with the tenure of Dr. Oberholtzer as superintendent
of the Denver schools from 1947 to his retirement in 1967.
During those twenty years the school population more
than doubled from 45,000 to over 97,000 pupils and the
number of classroom teachers increased from approxi
mately 1600 to more than 4000.22 Over 100 million dol
lars was spent during that time for construction and
equipping school facilities in all areas of Denver to ac
commodate this school population explosion. Oberholtzer,
A. 1304a, Map PX 20, A. 2018a. Yet funds were never
adequate to provide schools in all locations where they
were needed to accommodate Denver’s growing and shift
82Oberholtzer, A. 1306a. See also comparative data, 1940 to 1969, DX
HK A. 2158a.
— 15 —
ing school population, particularly in newly annexed areas
from which children had to be transported to the nearest
available spaces in their grade levels.
Sizeable capital outlays were expended on renovation
and maintenance of older buildings and facilities to keep
them in good condition and provide up-to-date lighting,
seating and other educational equipment. Oberholtzer, A.
1365a.
Schools were constructed over the years where they were
needed to accommodate resident pupils without regard to
the race or color of the pupils until 1964. Oberholtzer, A.
1316a, 1317a, and A. 1370a.
These schools reflect the racial and ethnic composition of
the areas of the city that they serve. As that composition
changed, so did that of the schools.
There is no evidence that the school district or any other
governmental agency either caused or had any control over
the changing racial characteristics of the neighborhood
areas involved.
The public policy of the State of Colorado as shown by its
laws and decisions was to prohibit discrimination based on
race and protect the right of the individual to choose his
place of residence regardless of race, creed, color, sex, na
tional origin or ancestry.23
Section 4 of Colorado’s Enabling Act provided in perti
nent part:
“. . . whereupon the said convention shall be and
is hereby authorized to form a constitution and
23The Supreme Court of Colorado in Capitol Federal Savings and Loan
Association v. Smith, 136 Colo. 265, 316 P.2d 252 (1957) went
further than this Court in Shelley v. Kraemer, 334 U.S. 1 (1948) and
following cases, when it held that no rights, duties or obligations what
ever could be based on a private racially restrictive covenant on real
property and, in essence, declared such covenants absolutely void.
— 16
state government for said territory; provided, that
the constitution shall be republican in form, and
make no distinction in civil or political rights on
account of race or color. . . Colorado Revised
Statutes 1963, Vol. l ,p. 52.
In 1895, Colorado enacted statutes prohibiting discrimi
nation in public accommodations. Colorado Revised Stat
utes 1963, Section 25-1-1. Subsequent, statutes in 1917
broadened the anti-discrimination provisions. Colorado Re
vised Statutes 1963, Section 25-2-3. In 1957, The Colorado
Antidiscrimination Commission was created, which has
since been granted broader powers. Colorado Revised Stat
utes 1963, Chap. 25, Art. 3. The Colorado Fair Housing
Act of 1959 (Colorado Revised Statutes 1963, Chap. 69,
Art. 7) made it unlawful and prohibited a person having the
right of ownership or possession to real property to refuse to
transfer, rent or lease to any person because of race, creed,
color, sex, national origin or ancestry; or to discriminate
against such persons in connection with housing, including
lending, making of restrictions, advertising or aiding or
abetting such conduct. Jurisdiction was given to The Colo
rado Antidiscrimination Commission to enforce the provi
sions thereof with appropriate judicial review and enforce
ment. (Laws of 59, p. 489; Chap. 69, Art. 7.)
In the period shortly after Brown v. Board of Education
347 U.S. 483 (1954), Superintendent Oberholtzer re
quested opinion of counsel and was advised that Brown did
not apply to Denver as it did not have separate schools for
the races and Brown applied only to state-imposed dual sys
tems and not to racial imbalance in schools resulting from
residential concentrations. Oberholtzer, A. 1310a.
B. Pupil Assignment Policies and Practices
The Denver School District has never maintained a sys
tem of separate schools for children of different races or a
- 1 7 -
dual system. 445 F.2d 990, 996; A.P. 126a. The school dis
trict has always utilized a neighborhood school policy of as
signing children to schools. Under this policy, the school dis
trict is divided into geographic subdistricts. A school is pro
vided for each subdistrict generally within ready walking
distance for all children in the attendance area (subdis
trict). There is a subdistrict for each level of education, ele
mentary, junior high and senior high. Elementary school at
tendance areas are smaller than the upper levels to accom
modate the younger children and limit walking distances to
school, generally no more than one mile. Junior high school
attendance areas are generally limited to a two-mile walking
distance. Senior high school subdistricts are much larger
and rely on various forms of transportation to and from
school such as public transit, private automobiles and bicy
cles. Oberholtzer, A. 1308a.
The school district has never assigned pupils to its schools
on the basis of race or other individual characteristic except
that children with extreme physical handicaps are trans
ported to a special school at district expense, some children
with learning disabilities are assigned to special education
classes outside the subdistricts where such classes are not
provided at their neighborhood schools, and in recent years,
a Voluntary Open Enrollment or majority to minority trans
fer policy has permitted transfers from the neighborhood
school to another school on the basis of race or ethnicity
where such transfers improve integration at both the send
ing and receiving schools.
The district court found:
“It is to be emphasized here that the Board has
not refused to admit any student at any time be
cause of racial or ethnic origin. It simply requires
everyone to go to his neighborhood school unless
— 18 —
it is necessary to bus him to relieve overcrowd
ing.” 313 F.Supp. 73 A.P. 67a.
The school district never took into account race or eth
nicity as a factor in establishing school subdistrict bounda
ries until 1964. Oberholtzer, A. 1370a.
Benefits of the neighborhood school concept include a ra
tional distribution of school population, convenience to the
child in getting to and from school, a close home and school
relationship with parents and teachers and placement of pu
pils in relation to maximum use of school plants. PX 20, p.
A-2, A. 2008a.
The neighborhood school policy has had some exceptions
in its application based on necessity but non-discriminatory.
These include transportation of children in newly annexed
areas, where there are no schools, to the nearest schools
with space available at the required grade levels. Other vari
ations of the neighborhood school policy have included op
tional attendance areas, eliminated in 1964; individual
transfers for a limited number of purely personal non-racial
reasons; transportation out to relieve overcrowding; and
Voluntary Open Enrollment.
In 1962, concern developed over a proposal to construct
a new junior high school on the northern portion of a large
site in northeast Denver at East 32nd Avenue and Colorado
Boulevard, purchased for that purpose in 1949 when the
neighborhood was predominantly Anglo. Many in the com
munity were of the opinion that the rapidly changing racial
composition of the area would cause the new school to be
predominantly Negro if built. The School Board deferred
action on the proposal and appointed A Special Study Com
mittee (sometimes referred to as “Voorhees Committee”)
to study the question and report generally on the status of
educational opportunity in the Denver Public Schools. The
— 1 9 -
committee was composed of representatives of the varied ra
cial, ethnic, cultural and economic groups which form the
total Denver community. PX 20, p. 10, A. 2006a. After an
exhaustive study, the committee made a written report to
the Board with recommendations on March 1, 1964. PX
20, A. 1997a.
In that report the committee generally endorsed the appli
cation of the neighborhood school concept in the organiza
tion of the Denver school system (PX 20, p. A-l, A.
2008a), recommended that the Board formalize into a writ
ten policy the criteria theretofore utilized in establishing
school boundaries and locating new schools (PX 20, p. A-
6), and recommended that the Board continue the neighbor
hood school principle except that it should establish a lim
ited open enrollment plan. PX 20, p. A-10, A. 2011a. The
committee also recommended that a matter to be considered
with all other factors was that school boundaries and the lo
cation of new schools should be determined so that the
school neighborhoods will represent, to the extent possible,
a heterogeneous school community. PX 20, pp. A-6 and A-
7. Such a policy was promptly adopted by the Board on
May 6, 1964. PX 1, Policy No. 5100, A. 1989a.
As to optional attendance areas, the committee found
that they often were continued after the reasons for their es
tablishment ceased to exist and were no longer necessary to
a rational boundary system, and therefore recommended
that they be abolished. PX 20, p. A-13, A. 2013a. The re
maining few were abolished by the Board shortly after re
ceipt of the committee’s report in 1964. The racial effects of
optional areas were insignificant and there were no findings
that optional areas or their abandonment in any way caused
racially concentrated schools.
The committee also reviewed the school district’s trans
portation policies and concluded that while transportation is
— 2 0 —
sometimes necessary, it is never desirable and that transpor
tation of pupils for the sole purpose of integrating school
populations was regarded by the committee as impractical.
It was recommended that transportation should be regarded
as an expedient rather than a solution to problems including
the problem of racial imbalance in the schools. PX 20, p. 11
and 12, A. 2011a and 2012a.
The transportation of pupils from newly annexed areas,
where there were no schools, to the nearest available space
at the appropriate grade level involved approximately 1000
pupils in 1964. PX 20, p. A -ll, A. 2011a. Petitioners com
plained that these children, who were predominantly Anglo,
were not transported to available space in minority schools.
The great majority of these children lived in the southwest
and southeast areas of Denver where there was space availa
ble in schools near their homes. Basically, the petitioners’
complaint was that these children were not bused additional
miles to integrate minority schools and not that the school
district used such transportation as a device to maintain
“segregation.”
The Court: Are you maintaining here that the
transportation is used to maintain segregation,
that transportation is employed in order to avoid
integration?
Mr. Greiner: The latter, yes, Your Honor, that
certain students are bused past schools with space
in them to schools further distant. A. 769a.
The evidence was not as counsel stated. The evidence
was that minority students from Smith School who were
transported out to relieve overcrowding were bused past
some Anglo schools to other Anglo schools. Bardwell, A.
770a.
This type of busing — to relieve overcrowding —
was different from the type of busing employed to trans
— 21 —
port children from areas which had no schools until such
time as schools could be built. Petitioners do not com
plain about busing to relieve overcrowding. The example
cited on page 26 of their brief — transporting a small
number of pupils from Montbello to Lake Junior High
instead of to Cole Junior High which was closer in
terms of miles but not on the Interstate highway route util
ized was evaluated by the Court in considering the effect
of Resolution 1524 on Cole Junior High School.
“The purpose of this change [reduction of the
pupil membership by 275 students] was to de
crease the pupil-teacher ratio at Cole and to make
room for a number of special programs to be in
stituted there. This was also a good faith effort by
the Board to improve the quality of education at
predominantly Negro Cole.” 313 F.Supp. 67 A.P.
54a.
Having determined on educational grounds to reduce the
membership at Cole, it would have been inconsistent for the
school district to bus additional children into Cole at the
same time. School capacity as explained numerous times in
the testimony was related directly to the type of educational
program conducted at the school and was not simply the
product of number of classrooms times 30, the average pu
pil-teacher ratio for the district, as petitioners assumed.
The district court made no findings that the use of
transportation as an adjunct to the neighborhood school pol
icy in any way contributed to or caused “segregation” in any
of the schools.
Regarding individual pupil transfers between schools, the
Special Study Committee stated that there was every evi
dence that the rules governing such transfers have been fol
lowed carefully and without prejudice. These were extreme
— 2 2
ly small in number (during 1963, 122 at the elementary
level and 29 at the junior and senior high level. PX 20,
A-9) and thus were insignificant in relation to the issues
in this case.
The Limited Open Enrollment program (LOE) recom
mended by the Special Study Committee was instituted in
1964. LOE did not employ racial criteria. It simply permit
ted a student to transfer from his assigned school to any
other school in the system where space was available in his
grade level on a first come, first served basis. No transporta
tion was provided by the School District. Petitioners state in
their brief (p. 32) that LOE involved only 267 elementary
students and had a negligible effect on integration.
LOE was instituted to enable minority children who de
sired an integrated school environment the opportunity to
obtain it. To further improve integration, LOE was re
placed in the fall of 1968 with a majority to minority trans
fer policy based on race, with transportation provided by
the school district. This program was called Voluntary
Open Enrollment (VOE). It was not expected that VOE
would racially balance the entire school system although it
had that potential. Koeppe, A. 432a. It was designed to give
students an opportunity to attend another school where
their race was in the minority and at the same time, to im
prove the racial balance of both the sending and receiving
schools. Perrill, A. 1082a, Koeppe, A. 428a.
The VOE principle was incorporated into the Hallett Ele
mentary School Voluntary Exchange Program and was in
tended to integrate Hallett. Koeppe, A. 425a. As petitioners
note in their brief at page 33, the program reduced the
Negro percentage at Hallett from 84% Negro to 58.4%
Negro during the pendency of this litigation in the summer
of 1969, despite the disruptive effects of this litigation. The
Hallett plan was contained in Resolution 1531 and also in
23
its replacement, Resolution 1533. PX 6a, A. 2111a. In ad
dition, the district-wide VOE policy was reaffirmed on June
9, 1969, and the Superintendent was ordered to initiate con
centrated and effective plans and programs to accomplish,
through voluntary transfers, the results intended by Resolu
tions 1520 and 1524. PX 6, A. 2110a and Koeppe, A.
433a.
C. Measures Utilized by the School District to Relieve
Overcrowding
During the period in question, the school district was
obliged not only to provide school facilities for children in
newly annexed areas and newly developed areas within the
city, but it was faced with increasing school population
within some of the existing subdistricts and particularly, the
Park Hill area. School buildings in these subdistricts had
been adequate to house the children residing therein until
the postwar population explosion.
The problem was particularly acute in northeast Denver
which was experiencing an influx of young Negro families
on the average about one-fourth larger than the white fami
lies they displaced. As pointed out by petitioners’ witness
Bardwell in his 1966 study of the area, the impact on school
population was severe. PX 38, p. 23, A. 2116a.
Several means of handling this overcrowding were em
ployed by the school district: permanent construction, tem
porary buildings or mobile units, boundary changes where
adjacent subdistricts were less crowded, double sessions and
busing out to nonadjacent subdistricts where space was
available.
Permanent construction was preferred. Former Superin
tendent Oberholtzer testified: “Now, our ideal was to pro
vide permanent construction wherever possible. We had the
— 2 4 -
usual problems of insufficient funds to do all the things that
we wanted to, to meet the needs. A great many of the needs
were met through the three bond issues and the other pro
gram that I referred to, but a lot of them were not met.” A.
1333a.
(1) Construction of New Schools.
School District No. 1 spent more than 100 million dollars
on school construction from 1947 to 1967, involving 100 or
more building projects. Oberholtzer, A. 1304a.
Petitioners complain of only two new schools. The first
was not the creation of a new school to relieve overcrowd
ing, but was simply the replacement of the old Manual High
School building which had been constructed sometime prior
to 1900, and was the oldest high school in the city. Planning
and the decision to build the replacement facility were made
some years prior to 1951. The new building was constructed
on lots immediately adjacent to the old building and opened
in 1953. The old building was then razed and the site was
used for athletic fields and playgrounds for the new school.
PX 356, p. 19. Attendance boundaries for the new building
were not changed and remained the same as for the old
building and the district court so found. 313 F.Supp. 69-70,
A. 59a. In 1950, Manual High School was 27.7% Negro.
In 1953, when new Manual opened, the Negro enrollment
was 35%. PX 401.
Petitioners’ statements to the effect that new Manual was
designed to serve the minority community imply that it was
planned for a discriminatory purpose. This ignores the fact
that the existing school building was simply replaced by the
new structure and the area served was exactly the same as
the area served by the old building. Former Superintendent
Oberholtzer testified that race and color were simply not
25 —
considered in the school district’s decision making. Ober
holtzer, A. 1316a.
The district court commented on this testimony.
“Former Superintendent Oberholtzer testified at
great length to the fact that the administration,
including the Board, followed a policy of strict
neutrality as far as segregation or integration was
concerned. Indeed, Superintendent Oberholtzer
stated that even after the decision in Brown v.
Board of Education, supra, he was of the opinion
that it was not permissible for him to classify Ne
groes as such, even for the purpose of bringing
about integration.” 313 F.Supp. 73. A. P. 66a.
The court found:
“Quite apart from the cause element which will
be discussed further below, it cannot be said that
the acts were clearly racially motivated. One
would have to labor hard in order to come up
with this conclusion.
“It can, however, be concluded that the segre
gation (or racial concentration) which presently
exists at Manual is not de jure.’’ 313 F.Supp. 75,
A.P. 71a.
As the court had earlier pointed out, “The impact of the
housing patterns and neighborhood population movement
stand out as the actual culprits.” 311 F.Supp. 75, A.P.7 la.
The other new school of which petitioners complain is
Barrett Elementary School located at East 29th Avenue and
Jackson Street and constructed in the late 1950’s for the
purpose of relieving extreme overcrowding at neighboring
schools then serving the area.
— 2 6 —
The district court, after the preliminary injunction hear
ing, held that Barrett Elementary School was built in the
late 1950’s for the purpose of serving a residential area
which was destined in a short time to become populated by
Negro families. When the school was completed and
opened, its population was predominantly Negro. 303
F.Supp. 282, A.P. 5a. This had come about, the court
found, by reason of the Negro migration from the core
city area to the east, first to Colorado Boulevard and later
beyond, which “caused these areas to become substantially
Negro and segregated.” 303 F.Supp. 282, A.P. 4.
The court further found fault with the school district for
failing to build Barrett larger and not extending its bounda
ries further east across Colorado Boulevard, a six-lane high
way, to encompass the westerly portion of the Stedman Ele
mentary School and relieve its overcrowding, and at the
same time obtain some white students in order to integrate
Barrett. 303 F.Supp. 290, A.P. 22a.
Yet the principal of Stedman from 1958 to 1963 testi
fied at the trial on the merits that she resided in the 2900
block of Albion Street in 1960 (one block east of Colorado
Boulevard and directly east of Barrett School), that there
were more Negro families than white families living in the
two block area immediately east of Colorado Boulevard;
and that the children from that area were attending Sted
man Elementary School, which was also receiving children
bused from the Ftallett area immediately to the east of Sted
man. McLaughlin, A. 1135a.
Thus, extending the Barrett boundaries to the east of Col
orado Boulevard would have exposed the children to the
hazards of a busy six-lane highway without accomplishing
any of the salutary purposes assumed by the district judge.
Further, as the district judge found, the school dis
trict did not segregate the children in the area served by
27 —
Barrett. The migration had done that. The school district
simply provided a neighborhood school building for the chil
dren who were already there. The only alternatives were to
build an addition to Harrington School to the north, as some
in the community had suggested,2:1 or increase busing out
on a permanent basis to whatever schools had space avail
able from time to time.24 25 Busing out was not only against
the wishes of most parents but also contrary to school
policy at the time. The essence of the district court’s find
ings as to Barrett is that the school district, although it
had no responsibility whatever for the racial concentra
tion in the Barrett area, violated the Constitution when it
did exactly what it did in other areas of the city, built
schools where the children were.26
The district court commented on the school district’s evi
dence:
“At trial (on the merits) Defendants attempted
to justify Barrett on the ground that until 1964
the Board maintained a racially neutral policy.
Racial and ethnic data were not maintained by
the District, and race was not considered as a fac
tor in any decision. Defendants further stated that
(1) the Barrett site had been owned by the Dis
trict since 1949 and a school was needed in that
general vicinity; (2) Colorado Boulevard was es
tablished as the eastern boundary of the Barrett
attendance zone because it was a six-lane high
way and would have been a safety hazard were
24DX GC. Harrington would have had a racial composition similar to
Barrett and by 1963, was 81.1% Negro. PX 243, A. 2054a.
25A11 the elementary schools to the east of Colorado Boulevard were
overcrowded less than two years after Barrett had opened. McLaughlin,
A. 1130a.
26Denison School, in southwest Denver was built at the same time from
the same plans as Barrett for the same reason— to house children.
Oberholtzer, A. 1343a.
2 8
children required to cross it; and (3) Barrett was
built relatively small because its main function
was to relieve overcrowding in existing schools
rather than to accommodate any significant pro
jected increase in area population.” 313 F.Supp.
64, A. P. 48a.
The court then held that these factors failed to provide a
basis for inferring that a justifiably rational purpose existed
for Barrett. First, it held that the District owned other sites
east of Colorado Boulevard. The court misunderstood the
evidence on this point. The evidence was that the school dis
trict owned two sites east of Colorado Boulevard in 1952,
eight years before Barrett was built. One had already been
used for Smith School in 1955 and the other was five blocks
north of Stedman and eight blocks east of Colorado Boule
vard, completely away from the residential area to be served
and too close to Stedman. Oberholtzer, A. 1346a and A.
1442a.
Second, the court stated there were other school sites on
both sides of busy thoroughfares indicating that safety was
not a primary factor. Of twelve elementary schools near
Colorado Boulevard, two have boundaries crossing it. DX
HL. One was built in 1920 and the other in 1930 before
traffic was a substantial hazard. One now utilizes an ele
vated crossing, built after two pupils were killed while
crossing Colorado Boulevard. Armstrong, A. 1281a.
Third, the court would have had Barrett relieve over
crowding east of Colorado Boulevard as well as west of Col
orado Boulevard. Overcrowding east of Colorado Boule
vard was indeed to become a major problem later because
of the influx of new families with more school age children.
PX 38, p. 23, A. 2116a. It would have required an ele
mentary school of enormous size to solve this problem and if
it had been built by the school district, petitioners un
— 29 —
doubtedly would have complained that it was intended to
capture Negro students east of Colorado Boulevard.
The decision to build Barrett was made in 1958 before
the 1960 federal census which was used by petitioners to
show that the school district should have known that Barrett
would have opened with a predominantly Negro school pop
ulation. PX 41, A. 2022a. That census did show that in
1960 the southern portion of the Barrett attendance area
was 73% Negro and that the northern portion was 51%
Negro. But the 1960 census was not available to the school
district until some time after Barrett opened. Had the
school district been basing its decisions on racial factors,
which it was not, (Oberholtzer, A. 1346a) the 1950 census
showed that the area was only 5.6% Negro at that time. PX
38, Table 3, p. 6, A. 2116a.
Speaking of the 1956 Manual boundary change, the dis-
rict court found that extension of the mandatory Manual at
tendance area to Colorado Boulevard at that time would
have resulted in the inclusion of a predominantly Anglo
neighborhood. 313 F.Supp. 70, A.P. 61a. Yet it concluded
that the school district should have known that the area was
predominantly Negro just two years later when the decision
to build Barrett was made.
(2) Construction of Additions to Existing Schools. Be
tween 1940 and 1964, the school district constructed 39
new school buildings, 5 replacement buildings and 46 addi
tions to existing buildings (some were additions to buildings
also constructed during that time). PX 20, p. B5. These ad
ditions were evenly distributed throughout the city. Of the
36 additions constructed between 1940 and 1960, 18 were
constructed east of Broadway, the main north-south
thoroughfare near the center of the city and 18 were con
structed west of Broadway. Sixteen were constructed north
of Colfax Avenue, the main east-west thoroughfare slightly
— 30
to the north of the geographical center of the city, and 20
were constructed south of Colfax Avenue. PX 20, App. No.
2. Thus each of the four quadrants of the city contained 9
additions.
Petitioners made no complaint about the construction of
additions to existing schools except the addition at Hallett.
The district court found that this increased the school’s ca
pacity to absorb the influx of Negro population into the
area. 303 F.Supp. 293, A. P. 29a. The court did not suggest
what other measures to deal with overcrowding would have
been acceptable and did not find that this measure caused
the racial concentration in the Hallett subdistrict.
(3) Mobile Units. Mobile units, or more properly, self-
contained classrooms, installed on concrete foundations
with air-conditioning and toilet facilities, were erected as a
temporary measure at some schools when permanent con
struction was not feasible and after other measures to re
lieve overcrowding had been considered. Oberholtzer, A.
1333a. Petitioners complained of the use of mobile units in
northeast Denver to accommodate the large migration of
students into that area in the 1960’s. However, the Special
Study Committee approved their use as a temporary meas
ure to relieve overcrowding PX 20, B-10. The district court
found that, as to Stedman and Hallett, this measure to re
lieve overcrowding did just that and that it provided more
room for students moving into these school subdistricts. 303
F.Supp. 291, 293, A. P. 25a, 29a. There was no finding
that the use of mobile units caused the Negro concentrations
within the subdistricts or that other measures should have
been used to relieve the overcrowding within such subdis
tricts. Four mobile units were placed at Stedman in 1965
and four mobile units were placed at Hallett between May
of 1964 and May of 1965. Boundary changes to adjust for
crowding had already been used. Busing out of Stedman
— 31 —
had to be employed in 1966 as an alternative to double ses
sions. Burch, A. 972a, Oberholtzer, A. 1350a. At Smith
Elementary School, adjacent to and northeast of Stedman,
also predominantly Negro, some 12 mobile units were
used because the parents preferred them to busing out (A.
106a and A. 1337a), and the court made no findings
whatever with regard to mobile units at Smith.
(4) Subdistrict Boundary Changes. During the years in
question, a great number of minor subdistrict boundaries
were changed by the school district throughout the city as a
means of adjusting for pupil population changes. For exam
ple, in 1962, subdistrict boundary changes were made by
the administration involving some 32 schools at the elemen
tary level (DX BD, Hedley A. 855a), and the same year,
some 18 boundary changes were being considered at the
junior high level. PX 405, Johnson, A. 951a. Junior and
senior high school boundary changes were made by the
Board of Education. By Board by-law, the superintendent
had power to change elementary school boundaries.
A number of the school district’s witnesses, including for
mer board members and its former superintendent, testified
that racial and ethnic characteristics were never considered
by them as a factor in their decision making for any purpose
until 1964. Johnson, A. 899a, Burch, A. 968a, Oberholtzer,
A. 1371a. This fact was noted by the district court in its
opinion following trial on the merits which found that the
boundary changes of the core city schools were neither
“willful or malicious actions of the Board or the admini
stration.” 313 F.Supp. 73, A.P. 66a.
Of the numerous school subdistrict boundary changes
made by the school district over the years since World War
II, petitioners complained of the few treated by the district
court in its opinions. In every case, the boundary changes in
question were minor and were made in response to a need to
32 —
adjust numbers of children because of overcrowding in
some schools. Unnecessary boundary changes were not
made because of the educational disruption caused to the
children involved. McLaughlin, A. 1138a.
a. Columbine Elementary School. In 1946, Columbine,
located north of City Park and east of York Street, had an
enrollment of 510 pupils, 39 of whom were Negro. PX 336,
A. 2081a. In 1950, Columbine School was overcrowded
and on double sessions (PX 406a, A. 991a) and in 1951,
its Negro enrollment was 24%. A.P. 65a. In 1952, three
optional zones were established around Columbine—Colum-
bine-Harrington, Columbine-Mitchell, and Columbine-Sted-
man—for the purpose of relieving overcrowding at Colum
bine and they did have the effect of decreasing the over
crowding at Columbine so that double sessions could be
eliminated. 313 F.Supp. 75, A.P. 72a. The district court
found no actions based on racial considerations, no willful
or malicious actions on the part of the board or the ad
ministration, and no segregative effect. 313 F.Supp. 73,
75; A.P. 66a, 67a, 72a.
b. 1956 Secondary School Boundary Changes. In 1956, a
new junior high school, Hill, opened in the eastern part of
the city to house the large increase in the area’s pupil popu
lation occasioned by new residential construction and an
nexations to the city. Establishment of boundaries for the
new junior high school caused a domino effect in changing
boundaries for all other junior high schools in the area, Smi
ley, Gove, Morey and Cole. As a result, high school bounda
ries between Manual and East high schools also required
adjustment because of changes in their feeder junior high
schools. Oberholtzer, A. 1314a. There was objection to the
high school changes and Cole-Smiley changes by some in
the minority community primarily because they felt that
these changes should have been more extensive to obtain a
— 33 —
better racial mix at Cole and Manual. The district court
held that the effect of these actions, on the minority concen
trations at Cole and Manual is not known and that “the in
stant situation then cannot be placed at the administration
doorstep.” 313 F.Supp. 75, A.P. 72a.
c. 1962 Elementary School Boundary Changes. In 1962,
minor boundary changes were proposed involving more
than 30 elementary schools. McLaughlin, A. 1138a. One of
these was Boulevard Elementary School located west of the
South Platte River in the northwest quadrant of Denver.
The change there was made necessary by the decision to
raze the older portion of Boulevard School and the re
sulting reduction of the capacity of the school. The district
court held that there was absolutely no evidence presented,
other than the fact of the boundary change, upon which to
base a finding that the school district was motivated by an
intent to segregate Hispano students at Boulevard but did
find that the boundary change was necessitated by the
legitimate need to reduce pupil enrollment. 313 F.Supp.
75, A.P. 73a.
There was no evidence whatever as to any boundary
change involving any other predominantly Hispano school.
Stedman Elementary School located just east of Colorado
Boulevard in Park Hill was another of the more than 30
schools involved in the proposed 1962 boundary changes.
The administration proposed that some minor changes be
made in the Stedman subdistrict, (PX 53, A. 2026a) but
after a meeting and discussion with the principals involved
the suggested changes were not made. The district court
found after preliminary hearing that the refusal to change
these boundaries confined Negro students in Stedman (50-
65% Negro) and denied them the opportunity to attend an
integrated school at Hallett (85-95% Anglo) immediately
— 34 —
to the east of Stedman. In the next finding, the court held
that Hallett would gradually become predominantly Negro.
303 F.Supp. 293, A.P. 28a, 29a. The court of appeals held
that “The Board’s refusal to alter the Stedman attendance
area in 1962 was not an affirmative act which equates with
de jure segregation.” 445 F.2d 1001, A.P. 136a.
The administration did make a proposed minor change
from Hallett to Philips by making the optional area between
the two schools a part of the Philips mandatory attendance
area. The district court made two assumptions: (1) that the
children who lived in the area were 100% Anglo and (2)
that all the children in that optional area had opted to at
tend Hallett in the 1961-62 school year. Neither of these
two assumptions was supported by the evidence. There is no
evidence to indicate how many of the children in the for
mer optional area had opted for Philips in previous
years. The district court commented on the result: “All that
was accomplished was the moving of Anglo students from a
school district which would gradually become predomi
nantly Negro [but was then predominantly Anglo] to one
which has remained predominantly Anglo.” 303 F.Supp.
293, A.P. 29a. There was no finding that this change
caused Hallett to become predominantly Negro or that it
was racially motivated. In fact, Hallett remained pre
dominantly Anglo for two years after the change. PX 243,
A. 2054a.
d. 1962 Junior High School Boundary Changes. In 1962,
18 separate boundary changes were proposed at the junior
high school level. PX 405, p. 22. It was alleged that the
elimination of optional areas and changes involving Cole,
Morey and Byers located from north to south in the geo
graphic center of the city were racially motivated. The dis
trict court found:
— 35 —
“The removal of the Morey Junior High op
tional zones in 1962 did have the effect of in
creasing the concentration of minority students at
that school. It also had the salutary effect of re
lieving the concentration of Negro students at
Cole, a result consistent with defendants’ claim
that it was carrying out a racially neutral policy.
Both the desirable and undesirable consequences
of the 1962 changes appear to have been by-prod
ucts of a general redistribution. In view of that, it
would strain both the facts and the law to say that
the administration acted with an unlawful pur
pose or design in this instance.” 313 F.Supp. 76,
A.P. 73a.
e. 1964 Boundary Changes. Twenty-one minor boundary
changes were made at the elementary level in 1964. Hedley,
A. 857a. Petitioners contended that the boundary changes
affecting four elementary schools in Park Hill resulted in
“segregation” at two of the schools, Stedman and Hallett.
These boundary changes included one from Stedman to
Hallett and another making the Stedman-Park Hill optional
area mandatory to Park Hill which was proposed by the ad
ministration in 1962 but not made until 1964. PX 71, A.
2030a. They also included changes from Park Hill to Phil
ips and Hallett to Philips. The size of the areas changed
could not have made a significant difference in the enroll
ment in any school. If anything, the changes should have re
duced the enrollment at Stedman. Yet whatever reductions
were made were more than offset by the influx of pupils
into the Stedman district. The total enrollment increased
from 796 in 1963 to 838 in 1964. Anglos decreased by 52
and Negros increased by 99. The following table made from
plaintiffs’ Exhibit 242 (A. 2052a) shows the enrollment by
race in all four schools in 1963 before the changes and in
— 36 —
1964 after the changes. Considering all four schools, An
glos decreased by 201, Negroes increased by 357, and His-
panos increased by 29. None of these changes could be at
tributed to boundary changes among these four schools.
1963 1 9 6 4
A N H T o ta l A N H T o ta l
S te d m a n 127 611 58 7 9 6 7 5 7 1 0 53 83 8
H a l le t t 4 1 7 183 28 62 8 2 3 9 2 9 6 42 5 7 7
P a r k H il l 7 79 10 4 793 7 4 5 63 16 8 2 4
P h i l l ip s 4 8 6 4 9 4 9 9 53 9 9 6 17 6 5 2
1809 80 8 99 2 7 1 6 1598 1165 128 2 8 9 1
The district court found that the change in the Stedman
optional area removed the option open to “many” Anglos
residing in the optional area to attend Stedman. 303
F.Supp. 291, A.P. 25a. In view of the undisputed fact that
Park Hill not only failed to gain Anglos after the change but
lost 34 and gained 53 Negroes, this finding is clearly erro
neous. The court also found that the predominantly “white”
portion of Stedman was detached to Hallett. 303F.Supp.
291, A.P. 24a. As shown in the table above, Stedman lost
only 52 Anglos and 5 Hispanos from all causes. If there
were any whites at all in the area transferred to Hallett,
there were only a handful.
The change from Hallett to Philips involved some 70 pu
pils of whom approximately 50 were Negro. McLaughlin,
A. 1141a. The table above shows that the Negro enrollment
at Philips increased from 4 to 96 for a gain of 92 Negroes.
(5) Double Sessions. Extended days and double sessions
were other measures used by the school district temporarily
to relieve overcrowding resulting from increased pupil pop
ulation. Double sessions were used in preference to con
structing temporary buildings. At times, the school district
had as high as 200 classrooms on double sessions. Ober-
holtzer, A. 1333a. There was no evidence of the use of dou
ble sessions for containment and no findings of such.
37
(6) Transportation Out to Relieve Overcrowding,
Transportation of children out of overcrowded school sub
districts was utilized by the school district as a temporary
solution to overcrowding when other means of relieving
overcrowding were not available. At times parents were
given a choice of measures to relieve overcrowding. In
1966, Stedman parents preferred busing out to predominant
ly Anglo schools over double sessions. At the same time,
Smith parents chose mobile units instead of busing out.
Oberholtzer, A. 1337a, Burch, A. 972a.
D. School District Policies Regarding Racial Imbalance.
Until 1962, the school district followed a policy of strict
racial neutrality. Its administration and Board members
were of the opinion that the provisions of the Colorado Con
stitution would not permit them to classify pupils by race for
any purpose. 313 F.Supp. 73, A.P. 66a.
In 1962, the administration proposed to construct a new
junior high school in northeast Denver. Protests from the
community, both majority and minority, caused it to post
pone the decision and refer the broad question of what to do
about growing concentrations of racial and ethnic minori
ties in the Denver Public Schools to a special study commit
tee (the Voorhees Committee). A. 2005a. This decision
marked the beginning of a change in official policy from
that of strict racial neutrality to that of a conscious racial
awareness. Oberholtzer, A. 1319a.
Also, in 1962, the Board created the Office of School-
Community Relations on the recommendation of the Super
intendent. Oberholtzer, A. 1351a. That office then com
piled the first comprehensive racial survey of students and
teachers since 1946.
In March of 1964, the report of the Special Study Com
mittee was received (PX 20) and in April of 1964 the Su
— 38 —
perintendent made a summary of the 155 recommendations
and distributed it to every member of the school adminis
trative staff. Oberholtzer, A. 1323a.
Action was taken on a large number of the recommenda
tions over the following two-year period. Optional attend
ance areas were discontinued; racial and ethnic characteris
tics of school population were added to the criteria for set
ting subdistrict boundaries; experimental low cost lunch
programs were set up in low income areas; an industrial arts
facility was added to Smiley Junior High School (a resolu
tion school); social studies programs to promote cultural un
derstanding were added; teachers were given special train
ing in human relations concepts; books dealing with inter
group relations were added to school libraries; special feder
ally-funded educational programs including Headstart, team
teaching of language, reading and arithmetic were estab
lished in core city schools; a Metropolitan Youth Education
Center was established to provide basic educational training
to unemployed youths; counselling time was doubled in core
city secondary scools; recruitment of well-qualified minority
group teachers was intensified and they were assigned to
nearly all schools of the district; a community study hall pro
gram was instituted in northeast Denver; and various other
actions were taken to implement the recommendations of
the Special Study Committee. DX H.O. and H.P., Ober
holtzer, A. 1382a-1388a.
On May 6, 1964, the Board of Education adopted Den
ver Public Schools Policy 5100 (PX 1, A. 1989a) which
provided in pertinent part:
“The continuation of neighborhood schools has
resulted in the concentration of some minority ra
cial and ethnic groups in some schools. Reduction
of such concentrations and the establishment of
- 3 9 -
more heterogeneous or diverse groups in schools
is desirable to achieve equality of educational op
portunity. This does not mean the abandonment
of the neighborhood school principle, but rather
the incorporation of changes or adaptations
which result in a more diverse or heterogeneous
racial and ethnic school population, both for pu
pils and for school employees.” PX 1, A. 1989a,
A. 1990a.
At the same time, the Board eliminated the optional at
tendance area between Cole and Smiley Junior High
Schools, a predominantly Negro area, and assigned that
area on a mandatory basis to Gove Junior High School, a
predominantly Anglo school further to the south. This was
the first time that the Board endeavored to take into ac
count racial and ethnic factors pursuant to Policy 5100,
and the result was integrative. Oberholtzer, A. 1375a.27
At the same meeting, the Board, in eliminating optional
attendance areas between high schools, assigned a predomi
nantly Negro optional area between Manual High School
and East High School to predominantly Anglo East High
27As a result of the 1964 boundary changes, a suit was instituted
on May 14, 1964, against the Superintendent, the Board of Education
and the School District by a white parent alleging that his children, who
attended Park Hill Elementary School and Smiley Junior High School,
would be affected by the boundary changes and "that the changes were
made
. . with distinctions and classifications of pupils made on
account of race or color, all in contravention of Article IX,
Section 8, of the Constitution of the State of Colorado, which
prohibits any distinction or classification of pupils on account
of race or color.”
“4. That said boundaries were established for the express
purpose of ‘racial balancing’ and with racial distinctions in
mind.”
* * *
“6. That said defendants at the same meeting on May 6,
40 —
School. Oberholtzer, A. 1376a. An area on the easterly
edge of the city in the path of the Negro migration was as
signed from East to almost totally Anglo George Washing
ton High School. Oberholtzer, A. 1377a. Both actions were
taken with the intention of changing the racial-ethnic fac
tors to the extent feasible in accordance with Policy 5100.
Oberholtzer, A. 1378a.
Also, in May of 1964, the Board adopted the limited
open enrollment policy (LOE) recommended by the Spe
cial Study Committee. Oberholtzer, A. 1369a, A. 1978a.
On March 17, 1966, the Board appointed the Advisory
Council on Equality of Educational Opportunity which con
sidered the question of whether the school district’s neigh
borhood school policy (as defined in Board Policy 1222C
dealing with criteria for establishing or changing school sub
district boundaries) should be applied to the location of
new schools and additions to schools in northeast Denver.
Oberholtzer, A. 1380,1381a.
The Council submitted its final report and recommenda
tions dated February, 1967 (PX 21) in which it recom
mended that no new schools should be built in northeast
1964, adopted a ‘Statement of General Policy’ relating to the
establishment of school attendance boundaries and the fac
tors to be considered in their establishment, which Statement
contained the following factor for consideration:
‘(f) The ethnic and racial characteristics of the school
population-—making, to the extent possible, a heterogeneous
school community.’
which Statement, together with the school boundaries as en
acted, are annexed hereto as Exhibits A and B and by this
reference incorporated herein.
“7. That the Board and the Superintendent have exceeded
their jurisdiction and abused their discretion in enacting and
approving said boundaries.”
The suit was eventually dismissed on motion of the School District on
July 31, 1964. Willis v. Burch, et al., Civil Action No. B-71888, in the
District Court in and for the City and County of Denver and State of
Colorado. No appeal was taken. "
— 41 —
Denver until plans were developed to implement the pre
viously adopted policies of the school district to consider ra
cial and ethnic characteristics in order to obtain more heter
ogeneous school communities. The Council also recom
mended a school capacity study, a cultural arts center, a su
perior school program, educational centers and continua
tion of the advisory council. All of these recommendations
were implemented except the educational centers and con
tinuation of the council. DX H.Q. Oberholtzer, A. 1389a.
As a result of the decision not to build new schools in
northeast Denver and the pressing need for additional ca
pacity at the junior high school level dating back to the pro
posal to build a new junior high school at East 32nd Ave
nue and Colorado Boulevard in 1962, the Board authorized
the construction of Hamilton Junior High School in south
east Denver to be utilized to relieve overcrowding at Smiley
Junior High School in northeast Denver. This permitted the
transfer of minority pupils out of the Smiley area to Hamil
ton. Later similar transfers were made to another new junior
high school (Place) in southeast Denver. Noel, A. 98a,
103a and 104a.
In 1967, the Board proposed a bond issue to finance con
struction of needed capital improvements in all parts of the
city. The proposal provided for the establishment of middle
schools to accommodate pupils in grades 4, 5 and 6 which
would serve areas larger than the traditional elementary
schools. The middle schools proposed would have been lo
cated in or near northcentral and northeast Denver and
would have contained more heterogeneous school popula
tions than existing elementary schools. PX 24, pp. 1-15.
The bond proposal was defeated at a special bond elec
tion that fall.
In May of 1968, the Board passed Resolution 1490 (PX
2, A. 1991a) which was designed to further implement Pol
— 42
icy No. 5100. PX 1, 1989a. Resolution 1490 provides in
pertinent part:
“Therefore, in order to implement Policy
5100, the Board of Education hereby directs the
Superintendent to submit to the Board of Educa
tion as soon as possible, but no later than Septem
ber 30, 1968, a comprehensive plan for the inte
gration of the Denver Public Schools. Such a plan
then to be considered by the Board, the Staff and
the community and, with such refinements as
may be required, shall be considered for adoption
no later than December 31,1968.”
Pursuant to Resolution 1490, the then Superintendent
(Dr. Robert D. Gilberts, who had succeeded Dr. Ober-
holtzer upon his retirement in 1967) with the aid of edu
cational consultants, prepared his report entitled “Planning
Quality Education” (DX D, A. 2128a) which he sub
mitted to the Board in October of 1968. Basic to the pro
posals contained in the plan was the consideration that
integration alone did not assure quality education and
there was a need for intensified educational programs for
children of all races who come from deprived environ
ments to overcome the limitations imposed by their back
grounds. DX D, p. 6, A. 2133a.
The Superintendent’s plan embodied, as its key feature, a
Model-School Complex which involved a grouping of sev
eral schools into one administrative unit, preserving the
neighborhood school as the basic unit in accordance with
Policy 5100, but providing maximum social and racial inte
gration through special programs in the larger area compris
ing the cluster. Other features included continued transpor
tation of minority students out of overcrowded schools to
majority Anglo schools, the Voluntary Open Enrollment
Plan (VOE) embodying the principle of majority to m inor
— 43
ity transfers with transportation provided, and innovative
educational programs. DX D, pp. 6, 7, A. 2134, A. 2135a.
In November of 1968, the Board adopted the VOE pro
gram to become effective at the beginning of the second se
mester of that school year in January of 1969, at which time
approximately 850 students were transferred under the
plan. Koeppe, A. 428a.
Despite limited applicability of VOE due to the manda
tory injunctive orders of the district court, 1,648 students
obtained transfers under VOE during the first semester of
the 1969-1970 school year. Of those, 408 were Anglo, 94
were Hispano and 1,146 were Negro, (DX VA, p. 51, A,
2161a) or approximately 8.2% of all Negro students en
rolled in all of the Denver Public Schools in 1969. DX S-l,
A. 2166a.
Also, in November of 1968, the Superintendent com
menced planning one element of his program for quality
education, the “stabilization” of schools in northeast Den
ver. Gilberts, A. 228a. This included improving the per
centage composition of Philips and Park Hill Elementary
Schools and East High School (all predominantly Anglo)
as well as the reversal of the racial composition of Barrett
Elementary School and Smiley Junior High School. Gilberts,
A. 229a. As the plans eventually evolved, certain areas were
carved out of the attendance areas of these schools and as
signed to noncontiguous majority Anglo schools in other
parts of the city and children from some predominantly
Anglo schools in the city, who were being transported be
cause they lived beyond walking distance from their schools,
were diverted and reassigned to these northeast Denver
schools. These plans included innovative educational plan
ning and reduction in pupil membership in Cole Junior
High School and Stedman Elementary School. They also in
cluded a voluntary exchange program to integrate Hallett
44 —
Elementary School. The purpose of the entire planning was
to attempt to reverse the trend of growing minority con
centrations in the schools of northeast Denver and, as a side
benefit, to test the hypothesis of whether an integrated set
ting provides a better educational opportunity for minority
children. Gilberts, A. 235a, 313 F.Supp. 95, A.P. 109a.
Dr. Gilberts was not convinced that there was a direct re
lationship between school integration and improved aca
demic achievement. Gilberts, A. 245a.
The plans for the racial stabilization of these northeast
Denver schools were embodied in three resolutions passed by
the Board between January and April, 1969. Resolution
1520 (PX 3 annexed to Complaint, A. 42a), approved on
January 30, 1969, recited that because of housing patterns,
East High School and Smiley Junior High School contained
growing numbers of racial and ethnic minorities and that re
duction of such numbers was desirable as one of the steps to
improve educational opportunity in those schools. The Res
olution then made a series of boundary changes to accom
plish the reduction of minorities at those schools effective as
of the opening of school in September, 1969, with trans
portation provided.
Resolution 1524 (PX 4 annexed to Complaint, A. 49a),
approved on March 20, 1969, made additional boundary
changes by detaching areas from the Smiley Junior High
School area containing approximately 850 students and as
signing them to other noncontiguous predominantly Anglo
junior high schools with transportation provided. Addition
ally, portions of the Cole Junior High School attendance
area were detached and assigned to other predominantly
Anglo junior high schools.
Resolution 1531 (PX 5 annexed to Complaint, A. 60a),
passed by the Board on April 25, 1969, contained many of
the same recitals as Resolution 1520 and directed the super
— 45 —
intendent to implement the model-school complex concepts
contained in his plan in response to Resolution 1490, by ac
tivating elementary school complexes 1 and 2 in September
of 1969; made boundary changes affecting Philips, Park
Hill and Barrett Elementary Schools; directed the superin
tendent to implement pre-primary educational programs in
northcentral Denver; directed the superintendent to make
Hallett Elementary School a demonstration integrated
school as of September, 1969, by use of voluntary transfers;
continued the transportation of pupils from Stedman Ele
mentary School to permit removal of mobile units; and di
rected that cooperative plans be developed to group schools
in complex 5 (northcentral Denver) with other schools out
side the complex.
Some planning was begun during the month of May,
1969, in preparation for the implementation of the three
resolutions in September of that year. A school board elec
tion was held in May of 1969, and two new members of the
Board were elected. A majority of the reconstituted Board
rescinded the three resolutions on June 9, 1969, nearly
three months before they were to become effective.
At the same meeting, Resolution 1533 (PX 6a, A.
2111a) was passed by the Board. It was designed to replace
rescinded Resolution 1531 and contained all of the ele
ments of the rescinded resolution except the mandatory
boundary changes. It recited that the Board had rescinded
the three resolutions because they were inappropriate to ac
complish their intended purposes and lacked community
support. Other recitals included consideration of Resolution
1490 and the need to stabilize pupil memberships in certain
schools of the district. The Board then found that many of
the same steps contained in the previous Resolution 1531
were necessary and appropriate to the improvement of
education in the Denver Public Schools and adopted them
in Resolution 1533.
46 —
Consistent with its policy of voluntary rather than man
datory integrative efforts, the Board also passed a motion at
its June 9, 1969, meeting designed to apply that principle
vigorously to accomplish the same objectives contained in
rescinded Resolutions 1520 and 1524—reversal of the mi
nority racial concentrations at Smiley Junior High School
and improvements in the percentage composition at East
High School. PX 6, A. 2110a.
Both the mandatory plan and the voluntary plan were
formulated on the premise that racial concentrations existed
in Denver as a result of housing patterns and not as a result
of any action on the part of the school district. Both plans
were alternative evolutionary steps in Denver’s developing
educational policies to provide the best educational op
portunities for all the children of Denver. Both were de
signed to reverse the trend of growing racial minority con
centrations in northeast Denver schools as one of the steps
to improve the quality of the educational programs in those
schools. Only the means were different and the petitioners’
major complaint regarding rescission and replacement of the
three resolutions was the effectiveness of the replacement.
Gilberts, A. 250a—A. 255a.
The Board has continued to pursue its policy of attempt
ing always to improve the quality of education offered to
the children of Denver. Following the trial on the merits and
the opinion of the district court on March 21, 1970, the
Board adopted Resolution 1562 (Appendix II to the Opin
ion of the Court of Appeals of June 11, 1971, 445 F.2d
1010, A.P. 156a) which reaffirms utilization of Voluntary
Open Enrollment (VOE) while at the same time directing
that intensified educational efforts be employed to improve
the quality of education offered to children at the schools
designated by the district court regardless of the final out
come of this litigation.
— 47
The court of appeals commented on this resolution in its
opinion of June 11, 1971: “The salutary potential of such a
program cannot be minimized, and the Board is to be com
mended for its initiative.” 445 F.2d 1005, A.P. 146a.
E. School District Resources
(1) School Facilities.
In their second cause of action, petitioners alleged that
the school facilities serving predominantly minority school
populations were old and therefore inferior. The evidence
indicates that some of the buildings located in the core city
are older, but they are well maintained by an extensive
maintenance and improvement program. Armstrong, A.
1284a. Of 39 elementary schools constructed prior to 1921,
only four were court-designated schools to be desegregated
(PX 24, p. 33), and of these, three had new additions con
structed in the 1960’s (PX 24, pp. 33-36), and the fourth,
Elmwood, is currently being replaced by a new building. Of
the three court designated secondary schools, Cole was con
structed in 1925, Baker in 1957, and Manual in 1953. PX
24, pp. 52, 54. The district court held, in its opinion of
March 21, 1970, that in general terms a disparity in age of
buildings and size of sites exists between predominantly mi
nority and predominantly Anglo schools. Based on the evi
dence of ages of buildings, the disparity favors the court
designated schools. The court then found, “However, we do
not think that the age of a building and site size are, in and
of themselves, substantial factors affecting the educational
opportunity offered at a given school.” 313 F.Supp. 81,
A.P. 83a.
(2) Teachers.
a. Assignment Practices. At no time, has any school fac
ulty or staff been 100% minority in the Denver schools.
With one exception, no school ever had more than 50% mi
48 —
nority teaching staff. The exception was at Barrett School
which, for a short period of time, had more Negro than
white teachers, there being available several Negro teachers
with special skills in the teaching of reading and other sub
jects, which expertise was needed at that school. Stetzler, A.
1167-9a.
In 1970, Negro teachers were assigned to 70 of the dis
trict’s 92 elementary schools. Stetzler, A. 1166a. No school
had more than 50% minority teachers, two schools had 41
to 50%, two schools had 31 to 40%, five schools had 21 to
30%, and all the rest had fewer than 20%. Of the three
court designated secondary schools, Cole had 61% Anglo
teachers, Baker had 83.6% Anglo teachers and Manual had
68.6% Anglo teachers. DX S-l, A. 2166a.
Dr. Stetzler testified that for some years it was considered
discriminatory to identify teachers or applicants by race,
through photographs or even requiring place of birth. Such
was a policy of the Colorado Antidiscrimination Commis
sion. A. 1168-9a.
Although the district court made no findings with regard
to the racial composition of teachers in its opinion after trial
on the merits, the petitioners argued in the court of appeals
that the assignment of minority teachers was probative of
segregatory intent. The court of appeals held that the
Board’s teacher assignment practices were not reflective of
segregative desires.
“It operated on the prevailing educational theory
of the day, the Negro pupils related more thor
oughly with Negro teachers. The rationale was
that the image of a successful, well educated
Negro at the head of the class provided the best
kind of motivation for Negro children and that in
turn the Negro teacher had a greater understand
— 49 —
ing for the Negro pupil’s educational and social
problems. Although the validity of that theory is
under severe attack today, we do not agree that
the results of its past application infer segregatory
intent. In response to new educational theories,
the Denver public school system has today as
signed Negro teachers to schools throughout the
system and has reduced the percentages of Negro
teachers in the predominantly minority schools.”
445 F.2d 1007, A.P. 150a.
b. Experience of Teachers. There was no finding by the
district court that any certain level of experience was su
perior to any other level or that teachers without prior ex
perience were inferior to older and more experienced teach
ers. Nor was there any evidence to support such contentions.
All teachers must be licensed by the State of Colorado
with a bachelor’s degree from a standard institution of
higher learning as one of the qualifications. Colorado Re
vised Statutes 1963, §127-17-14. Thus all Denver schools
were assigned teachers with comparable educational back
grounds.
Petitioners’ evidence on experience level of the faculty at
the core city schools was severely distorted by their use of
Denver public school experience only. The more significant
evidence was that between 38 and 50% of the new teachers
employed by respondents between 1962 and 1968 had prior
teaching experience in other school districts. DX DA, A.
2143a. Of those, 18 to 24% had three or more years’ prior
experience. DX DB, A. 2144a. Further, about 9% of the
new teachers hired by respondents had advanced degrees.
Stetzler, A. 1156a.
Dr. James S. Coleman was of the opinion that teacher
experience and graduate degrees were not important fac
50 —
tors. A. 1557a. The Negro principal at Barrett Elementary
School, Mr. William Smith, testified for the petitioners and
his evidence included his opinion that new teachers were as
capable and competent as those with more experience. A.
1701a. Dr. Stetzler testified that new teachers of the
younger generation were better prepared and with greater
social awareness than those of even five years earlier. A.
1170a.
The record contains no other significant evidence despite
any claim by the petitioners pertaining to teacher inexperi
ence as a cause of or relation to unequal educational oppor
tunity in the core city schools.
c. Transfers. The school district’s agreement with Denver
Classroom Teachers Association, an affiliate of the Na
tional Educational Association (NEA), permitted transfers
by teachers between schools, on the basis of seniority,
within the district. The district court found that this created
more vacancies in minority schools which were typically
filled by new teachers with little or no Denver Public School
experience. 313 F.Supp. 80, A.P. 82a. There was no finding
that this resulted in an inferior educational offering at these
schools.
(3) Curricula. Petitioners alleged in the second count of
their second cause of action that the school district allocated
inferior resources to predominantly minority schools. One
of the items specified was curricula. They produced no evi
dence of disparate curricula and the court made no findings
that curricula was inferior in any school. Dr. Oberholtzer
testified that there were differences in curriculum offerings
within specific subject areas, depending on the needs of the
pupils and their interests, but the basic subjects were taught
in all of the schools. A. 1366a.
(4) Dollar Inputs,. There was abundant evidence that
the predominantly minority schools received proportion
51
ately more of the district’s financial resources than predomi
nantly Anglo schools. Petitioners point only to a possibility
that the total salaries paid to teachers at minority schools
was comparatively less because the district’s salary schedule
is based partly on experience. But the slight difference in
salaries paid based on experience is far outweighed by a
lower pupil-teacher ratio at minority schools, teacher aides,
expensive compensatory educational programs, newer types
of curriculum materials, more community trips, more teach
er-developed educational materials, assignment of special
reading teachers, and funds in substantial amounts allo
cated to low-income area schools under federal programs
limited to such schools. Oberholtzer, A. 1367a, 1368a. The
district court made no findings of unequal allocation of any
resources to the core city schools.
F. Educational Results—Achievement.
The district court found lower academic achievement in
the court designated schools by considering results of stan
dardized achievement tests (1968 Stanford Achievement
Tests). The school district had published a report in 1968
containing an alphabetical listing of all schools in the dis
trict and the results of the various standardized tests given
in each school that year.
The average of the median for each test given at a partic
ular school was used by the court as indicative of that
school’s overall achievement level.
The court then found from this data that children at mi
nority schools achieved at a lower level than the city wide
average for all schools (the city wide average was an aver
age of the average median scores for all schools at the same
level). 313 F.Supp. 79, A.P. 79a, 80a.
Individual pupil achievement in all schools ranged to
highs between the ninty-fifth and the ninty-ninth percentile,
— 52 —
thus demonstrating conclusively that individual students in
all minority schools achieve at the highest level shown by
the standardized tests. Klite, A. 574, 576a, PX 379, PX 83.
Achievement expectancies at all schools were based on
individual IQ tests previously administered. Expectancies
were not based on racial or ethnic composition of the
schools. School expectancies were then computed based on
the individual expectancies of their pupils. PX 83, PX 379,
Cavanaugh, A. 650a. In almost all cases achievement test
results exceeded expectancies thus established. PX 379.
The finding of comparatively low average achievement
was the single most important factor in the court’s conclu
sion that the court-designated schools were inferior.
G. Remedy
The district court concluded, following trial on the mer
its, that “segregation, regardless of its cause, is a major fac
tor in producing inferior scools and unequal educational op
portunity.” 313 F.Supp. 82, A.P. 86a, 87a. The court then
proceeded to a discussion of remedies which included a
“program of improvement” for the court-designated schools
and a suggestion that the Board guarantee space for minor
ity students who wished to transfer out of the court-desig
nated schools under VOE. 313 F.Supp. 84, 85, A.P. 90a,
93a. The court observed as to the latter:
“Arguably, at least, this method satisfies the Con
stitution in that it recognizes the right of every
student and makes that right available to him
without forcing it on him. Comments of the liti
gants on this will be considered at a further hear
ing.” 313 F.Supp. 85, A.P. 94a.
At the later hearing on remedies, the Board presented a
plan (DX VA, A. 2160a) responsive to the suggestions of
53
the district court. It contained a specific program for im
provement in the quality of education and included VOE
with space guaranteed. Through Resolution 1562 (A.
2160a) the Board committed itself to continue improve
ment in the quality of education offered in its schools re
gardless of the final outcome of this litigation. In its discus
sion of remedies, however, the district court discarded the
question of whether VOE would satisfy the Constitution
and stated that the crucial factual issue was whether com
pensatory education alone in a segregated setting is capable
of bringing about the necessary equalizing effects or
whether desegregation and integration are essential. 313
F.Supp. 94, A.P. 107a.
Petitioners’ position was that both desegregation and
massive compensatory education were essential to satisfy
the Constitution. Respondents’ position was that there was
no competent evidence that desegregation or traditional
compensatory education had any significant effect on im
provement of educational achievement and that solution of
the problem required continued experimentation with var
ied innovative approaches to educational policies until an
effective solution was found.
The district court summarized the testimony of the expert
witnesses produced by both sides, substantially all of which
was designated and appears in Volume 4 of the Joint Ap
pendix.
None of the experts could suggest an unqualified solution
to the problem of low achievement of children with low so
cio-economic family background and attendant cultural dis
advantages. The solutions suggested were studied but un
proven theories. None of petitioners’ experts had studied the
Denver school system. They expressed general opinions not
addressed to Denver specifically but to every school system
- 5 4 -
in the country. None of them prescribed a specific solution
to Denver’s problems.
The testimony of Dr. James Coleman, who supervised the
survey reported in the publication entitled “Equality of Ed
ucational Opportunity” (PX 500), makes it abundantly
clear that the causes of low achievement are socio-economic
and are not a matter of race. A. 1546a and A. 1558a.
This conclusion of the experts that the cause of low
achievement was not a matter of race but rather a product
of the socio-economic status of the students was made so
clear that the court remarked in colloquy with Dr. Cole
man:
“The thing that worries me about all this is that
what you say is that the schools are not inferior as
counsel proved at the trial, but that the students
are inferior. They proved it overwhelmingly that
the schools were inferior. Now, in coming up with
a new tack—it’s not the schools at all, it’s the stu
dents and their economic and cultural deprivation
that makes the educational experience one that is
non-competitive. It’s dull; not exciting. I mean, I
get that from what you’re saying. Sort of a self-de
feating proposition. They proved the Constitution
was violated and now they are unproving it.” A.
1546a.
Dr. Coleman admitted his survey did not show the effects of
racial integration one way or the other because the survey
was limited to one point in time and did not purport to be a
controlled study of a before and after situation. A. 1542a.
The report did not examine innovative educational pro
grams designed to improve the quality of education and Dr.
Coleman could not comment on the programs proposed by
the school district or on those underway at Manual and
55
Cole. A. 1537a, 1553, 1554a. When asked for the primary
factor present in a predominantly Anglo school which
would improve the education of a minority child, he stated
that his answer was based on a mere statistical inference:
“What that means in effect is that, if the in
ference is correct, is that a child from a lin
guistically-impoverished background will be most
affected by a school situation which has a—which
is more linguistic, particularly the rich or differ
ent educated environment.” A. 1543a.
Dr. Neal Sullivan, former superintendent of schools in
Berkeley, California, and, at the time of trial, Secretary to
the Massachusetts State Board of Education, also testified
for petitioners. His duties included administration of a Mas
sachusetts statute requiring local school committees to elim
inate racial imbalance. He had implemented a voluntary
program of integration in Berkeley, California, prior to
leaving his position there.
He testified that Boston, Massachusetts, had in the plan
ning stage a proposal to construct educational parks costing
$200 million as a means of racially balancing that school
system, and that some 2000 minority students were being
bused to suburban schools under a voluntary transfer plan.
A. 1565a. He testified that research indicated that the black
child’s achievement improved under the voluntary plan (A.
1566a), but gave no specifics. Dr. Sullivan left the Berkeley
school system at about the same time the integration plan
went into effect and could not testify that integration alone
would be sufficient to improve education in any event.
“Q. You need something more than integration?”
“A. You bet. Massive reform,” A. 1595a.
Petitioners’ rebuttal witness, Dr. Robert O’Reilly, a re
search psychologist employed by the New York State Board
— 56
of Education, described a research study of compensatory
education programs carried on in various parts of the
United States. This study, he admitted was really a study of
the reports of other studies and not an independent study,
A. 1925a. In his opinion, all the various types of intensive
educational programs categorized as compensatory educa
tion were entirely valueless, even in an integrated setting,
from all indications. A. 1929a, 1930a.
His general opinion was that, with regard to integration,
knowledge of the process is not yet so complete nor is what
is known so systematically applied that any startling changes
in educational development should become evident in de
segregated minority students. A. 1957a, 1958a.
Dr. O’Reilly’s primary objection to compensatory educa
tion programs was that they were generally just more of
what the schools already have. A. 1933a. He would recom
mend new approaches:
“So, what I’m trying to communicate to you, I
guess, is that this is a very unsettled field. There
are no hard and fast rules to go on. It’s very un
likely that anybody is ever going to come up with
a treatment that is going to be generally effective
with minority students at all. What has to be done
is basically many, many years of experimentation
in which we slowly and carefully identify and de
velop specific programs designed for specific
groups, specific minority groups. Because they
differ so greatly.” A. 1932a.
Dr. O’Reilly testified that the effectiveness of the educa
tional program should not be based on a single indicator
and that “there are many, many indicators of the effective
ness of the school that are not necessarily achievement test
data.” A. 1957a. He would look at such items as students’
opinions and how many of the students go on to college.
— 57 —
The court of appeals also recognized that achievement
scores were not the sole indicator of the effectiveness of the
educational opportunities in the schools and commented
that:
“Pupil dropout rates and low scholastic achieve
ment are indicative of a flaw in the system, but as
indicated by appellee’s experts, even a completely
integrated setting does not resolve these problems
if the schooling is not directed to the specialized
needs of children coming from low socio-eco
nomic and minority racial and ethnic back
grounds. Thus it is not the proffered objective in
dicia of inferiority which causes the substandard
academic performance of these children, but a
curriculum which is allegedly not tailored to their
educational and social needs.” 445 F.2d 1004,
A.P. 144a.
Mr. James Ward, principal of Manual High School, has
instituted innovative educational programs designed to meet
the needs of high school students from low socio-economic
areas because the basic traditional program was not meeting
the needs of those students. A. 1845a. These included pre
professional studies and work-study vocational training.
The district court summarized some of these programs at
Manual, Cole and Bryant-Webster at 313 F.Supp. 95, A.P.
110a, and ultimately ordered the school district to continue
these programs.
The effectiveness of these new approaches is dramatically
illustrated by use of the “indicators” established by petition
ers’ expert witness Dr. O’Reilly. The dropout rate at Man
ual has been reduced and the students are staying in school
(Ward, A. 1859a) and more Manual graduates applied to
college (58% ) than did the graduates of three predomi
— 58 —
nantly Anglo schools (Thomas, A. 1233, 1234a) and 51%
of the graduates actually entered college. Ward, A. 1859a.
None of the petitioners’ experts had ever made any stud
ies of or visited any of Denver’s schools. In fact, the national
survey directed by Dr. Coleman did not include Denver. A.
1562a.
Respondents’ main witness at the hearing on remedy was
Dr. Robert Gilberts, who had resigned as Superintendent of
Schools for the respondent school district effective Septem
ber 1, 1970, to take a new position as Dean of the College
of Education at the University of Oregon. A. 1707a.
Dr. Gilberts had supervised preparation of the respon
dents’ plan to comply with the district court’s opinions fol
lowing trial on the merits (DX VA, A. 2160a) which in
cluded a detailed plan for improvement and continuation of
the VOE program with space guaranteed, both of which
were discussed as remedies in the district court’s opinion and
which had been included in the Superintendent’s original
proposal for quality education (DX D). The district court
characterized the respondents’ plan as “designed to recon
struct the educational climate” and summarized many of its
elements in the Decision Re Plan or Remedy. A.P. 109a.
In Dr. Gilberts’ opinion, desegregation was not an abso
lute and necessary first step to the solution of the complex
problem of comparatively low achievement among children
from low socio-economic environments. A. 1712a. He said:
“I agree with Dr. Sullivan’s comments. . . that some mas
sive changes are necessary. . . in the entire form of educa
tion.” A. 1713a. Respondents’ plan emphasized new and
different approaches to the problem and not just more of the
same.
Dr. Gilberts testified that integration is a voluntary proc
ess of changing attitudes so that individuals are accepted re
— 59 —
gardless of their race or ethnicity (A. 1762a) and that, as
such, it is necessary in the larger society to prevent the ill ef
fects of racial polarization. A. 1751a. Yet he was not con
vinced that desegregation in terms of simple racial mixing
had any educational advantage per se and that one of the
reasons for proposing the resolutions in northeast Denver
was to test the hypothesis in that regard. A. 1752a. In his
opinion, the plan proposed by the respondents had a better
probability of success in improving education than that
proposed by petitioners. A. 1762a.
SUMMARY OF ARGUMENT
Respondents oppose the demand of petitioners that this
Court decree racial and ethnic desegregation, on a system-
wide basis, of the Denver school district. Respondents’ posi
tion is that judicial intervention in the conduct of the Denver
school system was never warranted, there having been no
constitutional violation properly found by the courts below.
The detailed Statement in this brief is intended not only
to show the entire relevant history of the school district’s
conduct of its affairs, but also to demonstrate that the Den
ver school district is quite different from the school district de
scribed by petitioners. The Denver school district has never
excluded a child from any school by reason of race or ethnic
origin; it has not continuously, obsessively, and covertly
pursued a policy of discrimination toward its pupils; and it
has not devoted inferior or different resources to any of its
schools. The full facts in this case show that Denver has
never practiced discrimination toward any racial or ethnic
group and that, until 1964 when Denver adopted an af
firmative policy of seeking racial and ethnic heterogeneity
to the extent feasible within the neighborhood school policy,
the Denver schools had followed a completely color-blind
policy as far as pupil assignment was concerned. In short, the
6 0 —
Denver school district is and always has been a unitary sys
tem conducted in accordance with the Colorado constitution
al mandate prohibiting “any distinction or classification of
pupils. . . on account of race or color.”
1. The claims of state-imposed segregation.
The claims of segregation in the Denver school system
were made as to two groups of schools, each substantially
separate from the other. The first group was referred to by
the courts below as the core city schools, and the second as
the resolution schools.
The district court expressly found that the existing racial
imbalance in the core city schools was caused by housing pat
terns and neighborhood population movement and not as a
result of any state action. In making these findings, the trial
court placed upon the plaintiffs the burden of proving action
able segregation unaided by any presumption that racially
imbalanced schools, in a unitary system with no history of
discrimination, was caused by school district action. In such
a case as Denver’s, the allocation of burden of proof was in
accordance with all authority and experience in such cases,
and was correctly approved by the court of appeals.
As for the resolution schools, the district court failed to
find in its earlier opinions that the claimed acts of segrega
tion in the early 1960s caused the racial imbalance existing
at the time of trial in any of the schools involved, and thus
erred in its apparent conclusion that a constitutional viola
tion existed as to three elementary schools and one junior
high school. The evidence clearly showed such imbalance
resulted from a massive movement of Negroes into the in
volved neighborhoods.
The district court erroneously found state-imposed segre
gation by reason of the rescission of three resolutions of the
— 61 —
Denver School Board in 1969. These resolutions would
have required mandatory busing from the resolution school
area. By rescission, the Board substituted a voluntary trans
fer plan which contained all of the elements of the rescinded
resolutions except the mandatory boundary changes. The
mandatory plan was preliminary, experimental and had not
been implemented. No students had been transferred prior
to the rescission nor were any transferred by reason of the
rescission.
In its later opinion following trial on the merits, the dis
trict court noted that the findings of segregative acts in the
early 1960s were discussed only as they were probative on
the issue of the segregative purpose of the 1969 rescission,
and held, in its ultimate finding on this part of the case, that
the rescission, per se, was the operative act of segregation,
and ordered the implementation of the rescinded resolutions.
The court of appeals affirmed the earlier findings regard
ing the claimed segregative acts at the four schools, and then
erroneously concluded that those acts caused the present
racial imbalance in the resolution schools, and thereafter er
roneously declined to rule on the question of whether the
rescission, in and of itself, was unconstitutional.
On the resolution school part of the case, therefore, the
court of appeals should have found that the acts complained
of in the early 1960s were not the cause of existing racial
imbalance, and, further, that the school board’s rescission of
the racial balancing resolutions in 1969 was not, as a matter
of law, an act of segregation causing the existing racial im
balance.
Nor should the remedy for acts found to have tended to
intensify racial imbalance in four schools in the early 1960s
extend beyond the reduction of racial imbalance as to those
particular schools. Any remedy beyond correcting the ef
— 62 —
fects, if any, of the earlier violations would be in excess of
the power of the courts.
2. The claims of unequal educational opportunity.
The other branch of the case does not involve state-
imposed segregation. It involves, rather, the question of
whether any constitutional violation arises where it is shown
that the median scores on standardized achievement tests
differ substantially as among the several schools in the Den
ver school system, and where some, but by no means all, of
the schools with relatively low scores also have relatively high
percentages of Negro and Spanish surnamed pupils.
The district court found that certain court-designated
schools showing low test scores were inferior schools com
pared with others, that concentrations of Negro and Spanish
surnamed pupils were the cause of the inferiority, but that
the racial and ethnic concentrations were not caused by
actions of the school district. On the basis of these findings,
the district court ordered racial balancing of the court-
designated schools, together with implementation of the
school district’s existing program of compensatory educa
tion and voluntary majority-to-minority transfer.
The court of appeals, finding no state action causing the
racial imbalance nor the educational outcomes in the schools,
reversed. The holding of the court of appeals was correct
and should be affirmed by this Court.
The neighborhood school policy, as applied in Denver,
did not determine the racial or ethnic composition of the
schools. This was determined, the trial court found, by
housing patterns and population movement. Therefore, the
school district did not cause the racial or ethnic concentra
tions which the trial court had held created an unequal edu
cational environment.
— 63
In addition, the evidence in this case and available to the
Court shows that median achievement test scores were not
a valid basis for comparing educational opportunity among
schools within a school system. Nor does the evidence sup
port the conclusion that racial or ethnic concentrations were
the cause of claimed inferior schools characterized by low
test scores. Both of these conclusions of the district court were
clearly erroneous and provide additional grounds for affirm
ing the reversal of the district court by the court of appeals.
The Denver school district has never excluded any pupil
at any time because of racial or ethnic origin. It operates on
a neighborhood school plan free from racial discrimination
and, in addition, for educational reasons, seeks to encourage
racial and ethnic heterogeneity through voluntary majority-
to-minority transfers with transportation provided. The Den
ver school district is carrying out its responsibility in full
compliance with all the requirements of the United States
Constitution.
ARGUMENT
I .
SUMMARY OF APPLICABLE
CONSTITUTIONAL PRINCIPLES
A. INTRODUCTION
This case is a class action by parents of children attend
ing the public schools of Denver who complained that their
rights to equal protection of the laws under the Fourteenth
Amendment to the Constitution of the United States have
been violated by alleged racial and ethnic segregation and
resulting unequal educational opportunity.
Unlike Brown v. Board of Education, 347 U.S. 483
(1954), this case does not arise in a state “having a long
history of maintaining two sets of schools in a single school
— 64
system deliberately operated to carry out a governmental
policy to separate pupils solely on the basis of race” as the
Brown situation was described by this Court in Swann v.
Charlotte-Mecklenburg Board of Education, 402 U.S. 1, at
p. 6 (1971). The policy of the State of Colorado as con
tained in its Constitution adopted in 1876 is that:
“No sectarian tenets or doctrines shall ever be
taught in the public schools, nor shall any distinc
tion or classification of pupils be made on ac
count of race or color.” Article IX, Section 8,
Constitution of Colorado.
No “dual system” has ever existed in Denver. Its school
system has always been operated as a “unitary system,” de
fined by this Court in Alexander v. Holmes County Board
of Education, 396 U.S. 19 (1970), as one “within which no
person is to be effectively excluded from any school because
of race or color.” After trial on the merits the district court
below found:
“It is to be emphasized here that the Board has
not refused to admit any student at any time be
cause of racial or ethnic origin. It simply requires
everyone to go to his neighborhood school unless
it is necessary to bus him to relieve overcrowd
ing.” 313 F.Supp. 73, A.P. 67a. (emphasis
added)
School assignment in Denver has always been on the basis
of residence in a geographic attendance area, a principle of
pupil assignment contemplated by this Court in Brown 11,
349 U.S. 294 (1955): . . [Rjevision of school districts
and attendance areas into compact units to achieve a system
of determining admission to the public schools on a nonra-
cial basis. . . .” 349 U.S. 300, 301.
With the possible exception of Spencer v. Kugler, ------
— 65 —
U.S. ------ , 30 L.Ed.2d 723 (1972), this is the first
case to reach this Court in which it is claimed that racial
segregation exists in a unitary school system. Brown and the
several school segregation cases decided by this Court since
Brown have dealt solely with the duty of school authorities
to dismantle, disestablish and convert former dual systems
into unitary systems. Swann anticipated the day when for
mer dual systems will have complied with Brown I and be
come unitary systems. At that point:
“It does not follow that the communities served
by such systems will remain demographically sta
ble, for in a growing, mobile society, few will do
so. Neither school authorities nor district courts
are constitutionally required to make year-by
year adjustments of the racial composition of stu
dent bodies once the affirmative duty to desegre
gate has been accomplished and racial discrimi
nation through official action is eliminated from
the system. This does not mean that federal
courts are without power to deal with future
problems; but in the absence of a showing that ei
ther the school authorities or some other agency
of the State has deliberately attempted to fix or
alter demographic patterns to affect the racial
composition of the schools, further intervention
by a district court should not be necessary.” 402
U.S. 31,32.
Denver does contain a growing, mobile society and it has
experienced swift and massive demographic changes in the
years since World War II which have caused racial imbal
ance in its schools.28
During the years that Denver’s minority population grew
in size and moved about the city, Denver’s school officials
,,!8See statement supra, pp. 9-13.
— 6 6
made the numerous policy decisions and took the many ac
tions necessary to govern and administer a fast growing
large urban school system.
Of all these actions, petitioners focused in their first
cause of action on the building of one new school, a few
minor subdistrict boundary changes in the early 1960’s, and
a policy decision in 1969 to change some unimplemented
racial balancing plans from a mandatory to a voluntary ap
proach. After a four-day hearing on preliminary injunction,
the district court held that these actions amounted to state-
imposed segregation as to four schools in northeast Denver.
The court of appeals applied Rule 52, FRCP, and affirmed.
The second cause of action, heard seven months later at
the trial on the merits, concerned a larger number of schools
located in the core city area of Denver and involved a time
period of roughly the ten years preceeding the actions com
plained of in northeast Denver. The district court held that
the evidence did not support the conclusion that state-im
posed segregation existed at those schools and that the
neighborhood school policy was not unconstitutional per se.
Both of these holdings were affirmed by the court of ap
peals. The district court also held that the racial imbalance
at these schools, even though not caused by the school dis
trict, resulted in unequal educational opportunity for the
children attending them and ordered, as a remedy, reduc
tion of racial and ethnic concentrations. The court of ap
peals reversed on the ground that no state action had caused
the condition.
B. ELEMENTS OF A CONSTITUTIONAL
VIOLATION
Swann reminds us that judicial powers may be exercised
only on the basis of a constitutional violation (402 U S. 16)
and teaches that:
67 —
“[I]n the absence of a showing that either the
school authorities or some other agency of the
State has deliberately attempted to fix or alter de
mographic patterns to affect the racial composi
tion of the schools, further intervention by a dis
trict court should not be necessary.” 402 U.S. 32.
The Court was speaking of a former dual system which had
complied with Brown and become “unitary.”
Denver always has maintained a unitary system. Plain
tiffs, in attacking the existence of schools which are substan
tially disproportionate in their racial composition, are not
aided by the presumption of the continuance of a dual sys
tem which arises only in a system with a long history of
state-imposed segregation. Swann, at 402 U.S. 26.
The court of appeals recognized this principle and ap
plied it below:
“Where, as here, the system is not a dual one, and
where no type of state-imposed segregation has
previously been established, the burden is on
plaintiff to prove by a preponderance of evidence
that the racial imbalance exists and that it was
caused by intentional state action.” 445 F.2d
1006, A.P. 148a.
This formulation is firmly based on this Court’s holding in
Brown I and other decisions of lower federal courts apply
ing that holding to school districts where the question of a
constitutional violation is put in issue, as distinct from cases
involving concededly dual systems where only the remedy is
in issue.
In Brown I, this Court held that the creation and mainte
nance by the state of separate schools for Negroes, solely on
the basis of their race, was inherently unequal treatment
and, therefore, violated the equal protection clause. The
— 6 8 —
precise question and holding in Brown I was “Does segrega
tion of children in public schools solely on the basis of race,
even though the physical facilities and other ‘tangible’ fac
tors may be equal, deprive the children of the minority
group of equal educational opportunities? We believe that it
does.” 347 U.S. at p. 493.
Analytically, the Court’s holding involved (1) separate
schools for Negroes, (2) caused by state action, (3) pur
posefully taken solely on the basis of race, and (4) unequal
treatment.
Since Brown it has been deemed unnecessary to prove the
fourth element because the Court found that state-imposed
segregation (the combination of the first three elements) re
sults in unequal treatment per se.29 This Court in Swann
described the constitutional violation announced in Brown I
in terms of these elements. If, by state action, pupils are
deliberately segregated in the schools solely on the basis of
race, the Constitution is violated. 402 U.S. 5, 6.
In cases involving dual systems, the objective is to correct
the violation by the remedial measures of Brown II and sub
sequent cases. Disestablishment cases are therefore not con
cerned with the violation, but with the remedy and the school
authorities are required to show that all vestiges of state-im
posed segregation have been eliminated. Swann, 402 U.S.
15.
In unitary systems such as Denver’s, one who alleges a
29Stated another way, the Court held race to be an arbitrary and im
permissible criterion for governing the use of public facilities. The
principle was promptly applied to public parks (Muir v. Louisville
Park Theatrical Assn., 347 U.S. 971, 98 L.Ed. 1112, 74 S.Ct.
(1954) ) public beaches and bathhouses (Mayor and City Council of
Baltimore City v. Dawson, 350 U.S. 877, 100 L.Ed. 774, 76 S.Ct. 133
(1955) ), municipal golf courses (Holmes v. City of Atlanta, 350 U.S.
879, 100 L.Ed. 76 S.Ct. 141 (1955)) and municipal buses (Gayle v.
Browder, 352 U.S. 903, 1 L.Ed.2d 114, 77 S.Ct. 145 (1956)), all on
the authority of Brown.
— 69 —
constitutional violation must show the existence of all the
elements of a violation.
First, it must be shown that there is racial separation in
the public schools of the system. Something more than mere
racial imbalance is necessary; how much more is a problem
in itself.30 Even separation to the extent that the system con
tains some schools which are all Negro and others that are
all white is not sufficient, standing alone, to justify a con
clusion that the Fourteenth Amendment has been violated.31
The second element necessary to the legal conclusion that
the Fourteenth Amendment has been violated is a finding
that such racial separation is caused by state action. Only
actions of the state which deny persons the equal protection
of the laws are proscribed by the terms of that Amendment.
In Deal v. Cincinnati Board of Education, the Sixth Circuit
observed:
“[T]he crucial fact to be found is whether the ra
cial imbalance was intentionally caused by gerry
mandering or by other alleged discriminatory
practices on the part of the Board.” 369 F.2d
55, 64. (emphasis added)
The third element necessary to support a conclusion that
the Fourteenth Amendment has been violated is that the
state action causing the racial separation must have been
30“We pass the unsettling problem which would face every school com
mittee of anticipating what amount of imbalance the local federal court
would consider equivalent to segregation. . . . Deciding what is exces
sive racial imbalance necessarily involves the resolution of expert ap
praisals of highly intangible factors.” Springfield School Committee v.
Barksdale, 348 F.2d 261 at 264. (1st Cir. 1965).
’'Deal v. Cincinnati Board of Education, 369 F.2d 55, 60 (6th Cir.
1966) cert, den 389 U.S. 847 (1966); Downs v. Board of Education,
336 F.2d 988, 996 (10th Cir. 1964) cert, den 380 U.S. 910 (1964);
Bell v. School City of Gary, 324 F.2d 209 (7th Cir. 1963) cert, den
i l l U.S. 924 (1963); Brown v. Board of Education, 139 F.Supp.
468, 470 (D.C.Kan. 1955).
— 70 —
based solely on race. This requires proof of purposeful and
deliberate action to classify persons on the basis of race.
Mere coincidence of result is not enough. The court of ap
peals for the Second Circuit, in Taylor v. Board of Educa
tion of City School District of New Rochelle, 294 F.2d 36
(2nd Cir. 1961) cert. den. 368 U.S. 940 (1961), approved
the crucial finding that race was made the basis for school
districting with the purpose and effect of producing a sub
stantially segregated school. In Downs, the Tenth Circuit
recognized that the element of racial purpose was necessary
to a constitutional violation:
“Of course, we agree with the appellants that the
school authorities cannot, under applicable con
stitutional standards heretofore discussed, use
such a change in boundary lines or the neighbor
hood school system as a guise for the purpose of
perpetuating racial segregation. The trouble is
that there is no evidence to show that the bound
ary line was change for that purpose.” 336 F.2d
996. (emphasis added)
But of the several elements making up the constitutional
violation, the most important, as emphasized by the district
court, is a “causal relationship between the discriminatory
action complained of and the current condition of segrega
tion in the school or schools involved.” 313 F.Supp. 74, A.P.
70a.
It is the absence of this causal relationship, in addition to
the absence of segregatory purpose, which required the
courts below to conclude that there was no actionable segre
gation in the Denver school system, except arguendo as to
four resolution schools.
C. THEBURDEN OF PROOF
The rules relating to the burden of proof of the elements
of actionable segregation which have governed actions in
— 71
volving school districts which do not maintain dual systems
were well summarized by the court of appeals:
“Once a prima facie case is made, the defendants
have the burden of going forward with the evi
dence. Hobson v. Hansen, 269 F.Supp. at 429.
They may attack the allegations of segregatory in
tent, causation and/or defend on the grounds of
justification in terms of legitimate state interest.
But the initial burden of proving unconstitutional
segregation remains on plaintiffs.” 445 F.2d
1006, A.P. 148a.
This accurately formulates the universal rule regarding bur
den of proof followed in the federal courts in cases involv
ing no relevant history of segregation (See, e.g. Deal at p.
571, Wright v. Rockefeller, 376 U.S. 52 at 56 (1964). This
rule is related to the presumption accorded to school author
ities, bound by state constitutions or laws making state-im
posed racial segregation in the schools unlawful, that their
actions are taken in accordance with law. In Deal v. Cincin
nati Board of Education, 244 F.Supp. 572 (1965), the dis
trict judge, commenting on the failure of plaintiffs to carry
their burden of proof, said at pp. 581,582:
“In a case involving similar issues, a colleague
in this Circuit has recently recognized the well es
tablished principle that \ . . public officials are
presumed to have properly discharged their du
ties.’ (Craggett v. Board of Education of Cleve
land, 234 F.Supp. 381, 386 (N.D. Ohio 1964,
Kalbfleisch, J.) ) . . . . This proposition has also
been in part at least the basis of determinations
sustaining school boards in Bell v. School, City of
Gary, Indiana, 213 F.Supp. 819 (N.D.Ind.),
aff’d, 324 F.2d 209 (7th Cir.), cert, denied, 377
U.S. 924, 84 S.Ct. 1223, 12L.Ed.2d216 (1963)
— 72 —
(Plaintiffs’ contend this case to have been
‘wrongly decided.’); Downs v. Board of Educa
tion, 336 F.2d 988 (10th Cir. 1964), cert, de
nied, 380 U.S. 914, 85 S.Ct. 895, 13 L.Ed.2d
800 (1965); Lynch v. Kenston School Dist., 229
F.Supp. 740 (N.D.Ohio E.D. 1964), (appeal to
the 6th Circuit Court of Appeals dismissed by
plaintiffs-appellants July 2nd, 1965); Northcross
v. Board of Education, 333 F.2d 661 (6th Cir.),
cert, denied, 370 U.S. 944, 82 S.Ct. 1586, 8
L.Ed.2d 810 (1964); and Barksdale v. Spring-
field School Committee, 237 F.Supp. 543
(D.C.Mass.), rev’d, 348 F.2d 261, (1st Cir.
1965).” (emphasisadded)
Petitioners seek the adoption of a new standard of proof
which would, in effect, cast upon school authorities the bur
den of disproving allegations of actionable segregation in
any racially imbalanced school system. There is no author
ity for such a reversal of the burden of proof in a unitary
system such as Denver’s. This contention is fully discussed
later in this brief at pp. 82-87.
II.
RACIAL IMBALANCE IN DENVER
PUBLIC SCHOOLS WAS NOT
CAUSED BY STATE ACTION
In the two opinions following the preliminary hearing, it
is clear that the District Court misapprehended the elements
of a constitutional violation when it concluded, in essence,
that the failure of the Board to take action to alleviate racial
imbalance, although not state-created, amounted to a viola
tion of the Constitution.
By the time of the trial on the merits, the district court
— 73 —
had a clearer view of the constitutional principles of law as
enunciated by this Court and some lower courts and recog
nized that judicial powers were limited to state-created seg
regation in schools, in violation of the Constitution. This is
evident by the court’s remarks during the trial on the merits
and the substance of its opinions following that trial. The
court then recognized that to be actionable, the school au
thorities must have acted with the purpose and effect of cre
ating segregation in the school or schools in question, and
that such action must have been die cause of racial imbal
ance present and existing at the time of trial. 313 F.Supp.
73-75, A.P. 67-7la.
Accordingly, the findings of the district court in the opin
ions following the preliminary hearing must be evaluated in
light of the opinions subsequent to the hearing on the mer
its.
It was the absence of the element of causal relationship,
in addition to the absence of segregative purpose, which was
the basis for the conclusion of the courts below that there
was no actionable segregation in the Denver school system
(except in four specific schools, which we shall show was
the result of an erroneous conception of the law).
A. THE COURTS BELOW CORRECTLY FOUND NO
STATE-IMPOSED SEGREGATION IN THE CORE
CITY SCHOOLS.
1. The findings regarding the core city schools were fully
supported by the evidence and were correctly sustained
by the court of appeals.
With respect to these core city schools, the following por
tions of the district court’s opinion following trial on the
merits are pertinent:
— 74
“The evidentiary as well as the legal approach to
the remaining schools is quite different from that
which has been outlined above. For one thing, the
concentrations of minorities occurred at an ear
lier date and, in some instances, prior to the
Brown decision by the Supreme Court. Commu
nity attitudes were different, including the atti
tudes of the School Board members. Further
more, the transitions were much more gradual
and less perceptible than they were in the Park
Hill schools.” 313 F.Supp. 69, A.P. 57a
“It is to be emphasized here that the Board has
not refused to admit any student at any time be
cause of racial or ethnic origin. It simply requires
everyone to go to his neighborhood school unless
it is necessary to bus him to relieve overcrowd
ing.” 313 F.Supp. 73, A.P. 67a
* * *
“So also in our case, the complained of acts are
remote in time and do not loom large when as
sessing fault or cause. The impact of the housing
patterns and neighborhood population movement
stand out as the actual culprits.” 313 F.Supp. 75,
A.P. 71a
^ 'i* "S '
“In summary, then, we must reject the plaintiffs’
contentions that they are entitled to affirmative
relief because of the above mentioned boundary
changes and elimination of optional zones. We
hold that the evidence is insufficient to establish
de jure segregation.” 313 F.Supp. 77, A.P. 75a.
The court of appeals as to these schools affirmed under
Rule 52, as follows:
— 75 —
“The trial court held that cross-appellants
[petitioners] failed in their burden of proving (1)
a racially discriminatory purpose and (2) a causal
relationship between the acts complained of and
the racial imbalance admittedly existing in those
schools.
“The evidence in this case is voluminous, and we
have attempted to carefully scrutinize it. Thor
ough review reflects that cross-appellants have in
troduced some evidence which tends to support
their assertions. However, there is also evidence
of record which supports the findings of the trial
court, so under Rule 52 F.R.Civ.P. 28 U.S.C., we
must affirm.” 445 F.2d 1006, A.P. 148a.
While professing not to challenge the district court’s fact
findings regarding core city scools, petitioners contend that
as to findings on two such schools, Manual and Cole, the
court should have found discriminatory acts on the part of
the school district and secondly, that such acts were the
cause of the racial imbalance in those schools at the time of
trial.
The trial court expressly found contrary to those claims
of the petitioners as demonstrated by the above quoted por
tions of the court’s opinion. As to intent, the district court
also found:
“Quite apart from the cause element which will
be discussed further below, it cannot be said that
the acts were clearly racially motivated. One
would have to labor hard in order to come up
with this conclusion.” 313 F.Supp. 75, A.P. 71a.
There was ample evidence to support this finding.
The district court thoroughly considered the construction
— 76 —
of a new Manual High School building at the same site as the
old building and with the same attendance area.
As the court of appeals pointed out (445 F.2d 1006, A.P.
149a), the racial change at the school since 1927 had been
gradual. PX 356, p. 5, A. 2086a. The racial makeup in
1950, when the planning for the new school was taking
place, was majority white,32 and the “community concern
was with the nature and character of the new facility,”
rather than its racial makeup. 313 F.Supp. 70, A.P. 59a.
As for the 1956 Manual-East boundary change, the trial
court found that it was justified by the overcrowding at East
and that the suggested alternative of a larger boundary
change would not have had any significant or enduring
integrative effect. 313 F.Supp. 70, A.P. 61a.
Similarly, the claim that the Manual and Cole boundary
changes in 1956 “insured” that the schools would later be
come predominantly Negro cannot stand analysis. In es
sence, petitioners claim that the district court failed to find
present segregative effect. The trial court, in discussing this
claim, recalled that an essential requisite of a constitutional
violation is state action which produces the presently exist
ing segregation complained of. Upon a review of the evi
dence, the court found that the boundary changes did not
have segregative effect either at the time in 1956 or at the
time of trial. 313 F.Supp. 75, A.P. 71a, 72a. Again, the
court made express findings on the acts complained of and
there was ample evidence to support the finding.
The effect of the boundary change on minority concen
trations in 1956, the court found, was simply not known or
shown. 313 F.Supp. 75, A.P. 71a, 72a. Moreover, since
much of the racial and ethnic concentration in the schools
occurred after 1956, without any action on the part of the
3-27.7% Negro, 23.5% Spanish origin, 40.7% other white, and
8.1% Oriental PX 356, p. 5, A 2086a.
77 —
school district, there was ample evidence to support the
court’s finding that the present concentrations in those
schools were not caused by the school district. 313 F.Supp.
75, A.P. 72a.
In criticizing these findings, petitioners analogize to an
inapplicable principle from Swann. They rely on the princi
ple that a school district, in dismantling a dual system, must
avoid closing racially mixed schools and building new
schools remote from Negro population centers, thereby
promoting segregated residential patterns. Swann, 402 U.S.
at 21. This never happened in Denver. The proper analogous
principle, instead, is that in a unitary system such as Den
ver’s, there is no constitutional duty to make year-by-year ad
justments in racial balance, in the face of demographic
change, where the school district is not shown to have de
liberately acted to change demographic patterns to effect the
racial composition in the schools. Swann, 402 U.S. at 32.
In the case at bar, segregative purpose and effect as to bound
ary changes must have been shown before an actionable vio
lation can be found. These elements were not shown and the
trial court so held.
Finally, petitioners fault the court of appeals for not con
sidering a factor the district court had also refused to con
sider with respect to these schools, namely, the continuing
but declining (DX DG, A. 2146a) disproportion of Negro
teachers teaching in several majority-Negro schools.
Teacher assignments received great emphasis by plaintiffs
in their evidentiary presentation and in their arguments
here. With one exception, no Denver school ever had more
than 50% minority teaching staff and that justifiable ex
ception is discussed in the Statement at pp. 47-49, supra,
along with the distribution of minority teachers throughout
the system.
The district court made no mention of the racial propor
— 78 —
tions of teachers in either the core city schools or the resolu
tion schools in its opinion on the merits.
In Denver, teachers were never assigned with either the
purpose or effect of identifying particular schools by race.
Denver has vigorously pursued a policy of recruitment of
minority teachers since 1964 and has assigned such teachers
throughout the system. Stetzler, A. 1155a-l 171a.
The teacher assignment policy prior to 1964 and the sub
sequent policy followed since then are best described in the
opinion of the court of appeals:
“[The Board] operated on the prevailing educa
tional theory of the day, the Negro pupils related
more thoroughly with Negro teachers. The ration
ale was that the image of a successful, well edu
cated Negro at the head of the class provided the
best kind of motivation for Negro children and
that in turn the Negro teacher had a greater un
derstanding for the Negro pupil’s educational and
social problems. Although the validity of that
theory is under severe attack today, we do not
agree that the results of its past application infer
segregatory intent. In response to new educa
tional theories, the Denver public school system
has today assigned Negro teachers to schools
throughout the system and has reduced the per
centages of Negro teachers in the predominantly
minority schools.” 445 F.2d 1007, A.P, 150a,
151a.
The record abundantly supports the refusal of both lower
courts to find evidence of segregatory intent from the as
signment of teachers.
— 79
2. The policy of the Denver School District has been
non discriminatory throughout.
Petitioners assert in their brief, that the school district fol
lowed a ten year policy of racial segregation during the
1960s. On this assertion, petitioners then build the argu
ment that as to their claims of state-imposed segregation in
the core city, the burden of proof as to the elements of in
tent and of causation and the burden of justification of ra
cial imbalance should be shifted to the school district.
This argument quite obviously disregards the time of the
alleged segregative acts with regard to the core city schools.
The evidence at the trial on the merits relating to these
schools consisted of the replacement of one school building
and some school boundary changes during the 1950s. The
claimed “policy of segregation” is not only non-existent as
we show below, but the alleged discriminatory acts in north
east Denver occurred in the 1960s, after the core city actions
were taken. Petitioners would thus apply such a policy retro
actively and impute unlawful intent to the acts of the 1950s
from acts of the 1960s.
Secondly, the alleged ten year policy applied only to 4
predominantly minority and 4 Anglo northeast Denver
schools, as petitioners candidly admit in their brief, p. 71,
and not to other areas of the system.
Thirdly, petitioners’ assertions regarding the ten year
policy are not supported by the ultimate findings of the dis
trict court. Here, it is necessary to take a careful look at
what the trial court found and at what stage of the develop
ment of the case. It should be remembered that the district
court entered four principal opinions over a period from
August 14, 1969, to May 21, 1970. The first two opinions
followed a hearing on a motion for preliminary injunction,
were prepared under the pressure of the approach of the
opening of school in September, 1969, on the basis of only
80
four days of evidentiary hearings and without having heard
the case fully on the merits. Thus, where inconsistencies ap
pear between the early opinions in 1969 and the later opin
ions in March and May of 1970, after full hearing on the
merits, the opportunity for more careful and complete con
sideration of issues in the later opinions becomes significant.
In both of the opinions following the preliminary hearing,
it is apparent that the court misapprehended the law. The
court went beyond the constitutional concept that only state
created segregation was violative of the 14th Amendment.
Although having recognized the historical practice of pupil
assignment in Denver under the neighborhood school pol
icy, the court obviously concluded at that time that the state
of the law proscribed not only state-imposed segregation,
but also mere inaction or continuance of a neighborhood
school policy without affirmative attempts to alleviate the
resulting racial imbalance in an urban school district. As in
dicative of the erroneous concept of Brown I as applied to a
dual system, the court stated:
“Thus the clear import of the Brown decision is
that neither a state or its agencies may establish,
maintain or lend support to a system of segre
gated public education. Furthermore, if the state
or any of its agencies prior to or after Brown take
any action which creates or furthers segregation,
a positive duty arises to remove the effects of such
de jure segregation.” 303 F.Supp. 286, A.P. 13a
(emphasis supplied to demonstrate the disjunc
tive)
Although the court proceeded to discuss the 10th Circuit
decision in Downs v. Board of Education, 336 F.2d 988,
(1964), the district judge questioned that opinion particu
larly in view of the decisions in the 5th Circuit. 303 F.Supp.
286,287, n 8, A.P. 15a.
— 81 —
Thus prior to the hearing on the merits, the district court
proceeded on the premise that the mere maintenance or con
tinuance of racial imbalance in some schools was a constitu
tional violation and hence it made a general finding of a ten
year policy of segregation. After making its general finding
of ten years of segregation, the court further stated:
“To maintain, encourage and continue segrega
tion in the public schools in the face of the clear
mandate of Brown v. Board of Ed. cannot be con
sidered innocent” 303 F.Supp. 287, A.P. 16a.
A later statement by the court that a duty existed to re
move segregation which had developed as a result of prior
affirmative acts does not lessen the impact of the foregoing
statements.
Following trial on the merits lasting over a period of 4
weeks, the court made some new findings and incorporated
some old ones. It did not incorporate the mentioned ten
year segregation policy and made no similar new findings,
after having heard the school district’s evidence. The signifi
cant findings as to the boundary changes for the core area
from 1952 to 1962 was as follows:
“There is no comprehensive policy apparent other
than the negative approach which has been
described . . . ” 313 F.Supp. 76, A.P. 74a.
In the opinion after the hearing on the merits, there is
clearly apparent a change and tightening up in the court’s
thinking and understanding of the constitutional concepts.
Thus the district court discussed in detail the various ele
ments necessary to be proven to establish a constitutional vi
olation and held that there must be not mere inaction but af
firmative acts of segregation purposefully or intentionally
done and with a causal relationship to the conditions of racial
imbalance existing at the time of trial. See Opinion of March
— 82 —
21, 1970, 313 F.Supp. 61, particularly pages 73 to 75;
A.P. 67a to-7Qa.
The court also found that in 1962 the school district “was
carrying out a racially neutral policy” in connection with
boundary changes that year. 313 F.Supp. 76, A.P. 73a. Fi
nally, and most significantly, the court describes the Board’s
policies during the ten years of rapid racial change in Park
Hill as a
“[Pjrior undeviating policy of refusing to take
any positive action which would bring about inte
gration in the Park Hill Schools.” 313 F.Supp.
66, A.P. 51a, 52a.
Even this description of the school district’s policy, stated in
terms of racially neutral inaction rather than affirmative ac
tion, was, we submit, contrary to the facts. Significant steps
were taken from 1962 onward, as a matter of educational
policy, to promote racial and ethnic heterogenity in the
schools. (see Statement pp. 37 to 47).
After trial on the merits the district judge described the
policy of the 1960s in Park Hill as one of racially neutral in
action while racial changes in the Park Hill neighborhoods
resulted in corresponding changes in the schools there. The
district court thus significantly modified its earlier com
ments regarding a “policy of segregation in Park Hill,”
made seven months earlier after the hearing on the prelimi
nary injunction but before hearing on the merits.
3. The courts below correctly allocated the burden of
proof.
Under the rules relating to burden of proof discussed ear
lier (supra pp. 70-72), as applied by the trial court in this
case, the plaintiffs failed to prove, as to the acts complained
of in the core city area, both segregative purpose and any
— 83 —
causal relationship to the present racial imbalance. The trial
court found, accordingly, that there was no state-imposed
segregation as to those schools. The court of appeals af
firmed, applying Rule 52 F.R.C.P.
Petitioners complain that the courts below misplaced the
burden of proof of actionable segregation. They seek to
have this Court enunciate a new rule, substantially as fol
lows: “Where a court finds one or more instances of dis
criminatory practices or factors in a school system and there
exists within that system some degree of racial imbalance
(even though not state-imposed), then the burden, not of
going forward, but of proof, shifts to the school district to
prove that the racial imbalance is justified by some compel
ling state interest.”
Such a rule finds no authority in decided cases. Petition
ers cite as their only source a law review article.38
To support the application of such a rule in this case, pe
titioners resort to charges such as “blatant discrimination”,
racially “distorted management”, “covert policy”, and sub
terfuge”, none of which are contained in the record or in the
findings of the district court.
The facts, as found by the courts below, are in sharp con
trast with these assertions. Discriminatory acts were found
to have occurred only as to three elementary schools during
the early 1960s four or more years after the acts com
plained of relating to the core city schools, and would not,
therefore, be part of a “history of discrimination” at the
time in question. Thus, the court of appeals correctly re
fused to impose on the school district the burden of proving
the non-existence of segregative acts, since “no type of state
83Dimond, School Segregation in the North: There is but One Con
stitution, 7 Harvard Civil Rights—Civil Liberties Law Review 1
(1972), (hereinafter, Dimond.) which describes the rule as a “pro
posed standard” (p. 32)
— 84 —
imposed segregation has previously been established” 445
F.2d 1006, A.P. 148a.
The petitioners’ urging of such a rule was considered by the
court of appeals, which stated:
“• • • • [I]t would be incongruous to require the
Denver School Board to prove the non-existence
of a secret, illicit, segregatory intent___Such an
onerous burden does not fall on school boards
who have not been proved to have acted with seg
regatory intent.” 445 F.2d 1005, 1006, A P
147a.
We submit that if three instances of problematical segre
gative acts affecting three elementary schools in a system of
119 schools over a twenty-year period of inquiry, meets the
test of “one or more instances of discriminatory practices or
factors , and if “some degree of racial imbalance” means
simply racial imbalance without proof of cause, as it surely
must, then the proposed rule is nothing more nor less than
the application of rules governing dual school systems to all
public school systems in the Nation wherever racial imbal
ance exists, regardless of cause.84
In short, the rule petitioners urge has no application to
the Denver case. The rule urged actually is that racial im
balance within a school system creates a conclusive pre
sumption of state imposed segregation. Such a rule has no
basis in any authority, and its proponents can offer none.
Of the many cases dealing with school systems which were
not concededly dual systems at the time of trial, Hobson v.
Hansen, 269 F.Supp. 401 (D.D.C., 1967), speaks most di
rectly to petitioners contention that “some” discrimination,
8‘Indeed, this is exactly what Mr. Dimond proposes. “The standard
tor review set forth here holds all school segregation actionable
unless insubstantial or adequately justified.” Dimond, p. 11 (n. 43).
85
coupled with racial imbalance, triggers a shift of burden of
proof. In the District of Columbia, the school authorities had
deliberately maintained a dual system with complete racial
separation until only 12 years prior to trial. (In Denver, the
alleged discriminatory acts in northeast Denver occurred
after the alleged acts pertaining to the core city). When the
District of Columbia desegregated in 1954, immediately after
the decisions in Bolling v. Sharpe, 347 U.S. 497 (1954)
and Brown I, by the adoption of a neighborhood school
plan, 27 % of its schools remained one-race. This racial im
balance intensified during the next 12 years, so that by the
time of trial in 1966, 87% of the District’s schools were
more than 85% of one race. 259 F.Supp., at 411, 412. Yet
Judge Wright refused to relieve the plaintiffs of the burden
of proof or shift the burden of justification to the school au
thorities. 259 F.Supp. at 495.
The standards formulated by the court of appeals repre
sent the consistent rule of the federal courts in these non
dual cases, as we have discussed above, pp. 70-72. When
school districts operate under state laws making racial sepa
ration in the schools illegal or unconstitutional, the school
authorities are entitled to the presumption that their actions
are lawful, and the burden is on the party challenging such
actions to establish unlawful discrimination.
While there is no universal working rule as to the alloca
tion of burden of proof, the standards develop out of experi
ence in different types of situations as “a question of policy
and fairness based on experience in the different situations.”
IX Wigmore, Evidence, Sec. 2486 (1940 ed.). The rules
applied in cases of this kind are the ones which have best
satisfied the basic requirements of fairness.
The “fairness” of the rule must be evaluated by consider
ing the complexities of a school system in a large urban city.
The over-all racial composition of large urban school dis
— 86
tricts, and the schools within them, is determined by a myr
iad of factors completely outside the control of the school
authorities. These factors, many of which this case illustrate,
may and often do include rapid and unpredictable popula
tion growth and movement, annexation by separate govern
mental entities, freeway and urban renewal construction,
and construction or abandonement of neighborhood par
ochial schools. To require such a school district to overcome
the virtually conclusive presumption that all racial imbal
ance in its schools is the result of allegedly discriminatory
acts would impose a punitive burden wholly unrelated to
fairness. Furthermore, in this case, as the record shows, the
plaintiffs had access to and analyzed with computer assis
tance all of the records of the school district. There were no
facts or expertise available to the school district not equally
available to the plaintiffs and in fact used by the plaintiffs in
a most thorough manner.
Where, as in this case, multiple classifications of ra
cial and ethnic groups are involved, and where plaintiffs
purport to sue on behalf of all of the several classes, a seri
ous danger would be introduced if the school authorities
were put in the position of being required to justify repeat
edly all existing aggregations of minority and ethnic pupils
merely at the instance of a suit by one or two of their mem
bers. Other members of the classes represented may not per
ceive their neighborhood residential and school attendance
arrangements as being contrary to their own interests. At
the beginning of the hearing on remedy following trial on
the merits, the district judge took note of this problem:
“The Court: Now, you undertake to represent the
Hispano community too?
Mr. Greiner: That’s correct, Your Honor.
* * He ❖
The Court: . . . I’m merely saying that our basic
87 —
legal problem is remedying the invasion of the
constitutional rights. And if it’s true that there is
a segment that says their rights are not violated,
why, I don’t see that it is any of our business to
say, ‘Well, they are. And you’re going to get them
remedied whether you like it or not.’ I just don’t
—Not a single Spanish-origin person has ap
peared here demanding relief or even suggesting
that any should be granted to them.
Mr. Greiner: Well, I think the only basis upon
which we can proceed, Your Honor, is the status
of the record and the record—in the record there
is no dissenting Hispano intervenors.” A. 1515a,
1516a.
Nor does the rationale for the presumption applied in
Swann to substantially one-race schools in a dual system in
the process of desegregating (Swann, 402 U.S. 26) warrant
the carrying over of that presumption to racially imbalanced
unitary systems. In a dual system, especially at this late
date, the constitutional right and remedy are so clear-cut
and the instances of evasion of duty by dual school systems
(e.g. Green v. County School Board, 391 U.S. 430 (1968))
have been so frequent that a shift of burden is warranted.
But the circumstances are vastly different in a school sys
tem like Denver’s which has never been a dual one and
which has no history of state-imposed segregation ex
cept, arguendo, as to the four resolution schools which was
not substantial but de minimus under all of the circum
stances of this case.
We submit that neither experience, fairness, authority,
nor logic requires a departure from the principles of burden
of proof followed by the courts below.
— 8 8 —
B. THE ONLY ACTIONABLE SEGREGATION
FOUND AS TO THE RESOLUTION SCHOOLS
WAS THE RESCISSION OF THREE RESOLU
TIONS, A FINDING WHICH IS ERRONEOUS AS A
MATTER OF LAW.
1. The findings regarding the three elementary schools
and the junior high school did not include a finding
of present segregative effect and do not support a
finding of actionable segregation.
We are here concerned with whether there has been a vio
lation of the Constitution.
“[I]t is important to remember that judicial pow
ers may be exercised only on the basis of a consti
tutional violation. Remedial judicial authority
does not put judges automatically in the shoes of
school authorities whose powers are plenary.”
Swann, 402 U.S. 16.
A constitutional violation requires a showing of intentional
state action causing presently existing racial segregation.
We refer again to the Constitutional principles discussed in
Part I above, pp. 66-70.
When the district court’s findings with regard to the reso
lution schools are viewed in the light of such principles, it
must be concluded that such findings were insufficient to
support the court’s legal conclusion of state-imposed segre
gation as to any of those schools. The legal conclusion was
therefore erroneous.
The findings related to only three elementary scools and
one junior high school. The first of these schools was Bar
rett elementary, where substantial racial imbalance was
found to exist at the time it was built and opened in 1960.
The trial court found that the school district built Barrett
89
with the intent to create a predominantly Negro school
(313 F.Supp. 64, A.P. 48a) stating, as the principal reason,
that the school could have been built with greater capacity
to serve an area on the other side of a major traffic artery
where fewer Negroes lived. 313 F.Supp. 65, A.P. 49a. The
court of appeals likewise found segregative intent on those
facts. 445 F.2d 1000,135a, 136a.
But neither court found that the construction of Barrett
had any continuing effect, at the time of trial, on the racial
characteristics of Barrett or any other school in Denver. The
construction of Barrett had no racial effect on either resi
dential patterns or school racial proportions. There was no
significant change in the number of children living in the
area served by Barrett and the four schools surrounding it
between 1959 and I96035. Thus, no new pupils were drawn
into the area by the building of Barrett; the new school sim
ply added needed school capacity in a neighborhood where
the pupil population had previously increased causing an
overcrowded condition in the existing schools. See State
ment, pp. 26-29.36
As a preface to discussion of other boundary changes
among the other three northeast Denver elementary schools
in the decade between 1960 and the trial in 1970, it must be
kept in mind that such actions were taken during substantial
demographic changes. Between 1960 and 1970 the Negro
population for the entire City of Denver increased from
30,251 (6.1%) to 47,011 (9.1 % ). During the same period
the Park Hill (northeast Denver) Negro population in
creased from 566 (1.7%) to 18,516 (50.2%) with an in
35See 445 F.2d 1000, A.P. 135a, n. 3.
86A Negro spokesman had suggested to the school board in 1959, as
an alternative to a new school, the addition of capacity to Harrington,
immediately to the north (PX GC), which illustrates that the pur
pose of the construction of Barrett was to meet the then existing need
for increased school capacity, not to alter or influence demographic
patterns.
— 90 —
crease of the total population of the area from 32,679 to
36,893 residents (Statement, pp. 10,11, supra.)
As to the assignment of the Hallett-Philips optional area
to Philips in 1962, the court assumed that the white pupils
residing in the area were choosing to attend Hallett and then
found that they were thereby reassigned to Philips. 303
F.Supp. 293, A.P. 29a. Actually, both schools were insignif
icantly different in racial composition in the spring of 1962
when the superintendent made the change (Hallett was
95.8% white, Philips was 99.6% white. PX 393). There
fore, both the assumption and the finding were erroneous.
But more importantly, there was no finding that this action
had or could have had any effect on the racial composition
of either school in 1970 at the time of trial.
In 1964, in response to the Special Study Committee rec
ommendations (A. 301a), the two-block optional area be
tween Stedman and Park Hill was abolished and assigned to
less crowded Park Hill, another two-block strip on the east
side of Stedman’s attendance area was assigned to Hallett,
and an area in the southeast corner of the Hallett area was
assigned to Philips equidistant to the south. As between
Stedman and Hallett, both schools gained about 100 Negro
pupils after the boundary change between them (PX 242,
A. 2050a), a result which could not possibly have been
caused by the boundary change. Hallett’s Negro percentage
increased from 28% to 42% (P. 243, A. 2053a), despite
the fact that the pupils in the area changed from Hallett to
Philips were 70% Negro (McLaughlin, A. 1143a), which
is confirmed by the increase of Negro pupils at Philips from
4 to 96 after the boundary change. PX 243, A. 2053a. The
evidence thus showed that the boundary changes among
Stedman, Hallett, and Philips in 1964 had no segregatory
effect at the time, despite the findings of the district court
made prior to the trial on the merits. No boundary changes
— 91 —
were made among these schools between 1964 and the time
of trial, and during that period the racial change within the
schools continued unabated.37. On this record there is no
possible basis for a finding that the 1964 boundary changes,
whatever their effect at the time, had any effect on the racial
balance in the resolution schools at the time of trial in 1970.
Indeed, the district judge, in his opinion on the merits, sug
gested as much. 313 F.Supp. 74, A.P. 70a, n. 18. Earlier,
he stated: “The migration caused these areas to become
substantially Negro and segregated.” 303 F.Supp. 282, A.P.
4a. (emphasis added)
Findings regarding the fourth school, Smiley Junior High,
appear only in the district court’s second opinion. 303
F.Supp. 293, 294, A.P. 30a, 31a. The sole connection be
tween school district action and Smiley’s racial composition,
the trial court found, was the so-called feeder relationship.
The court attached a map as an appendix to the opinion
(303 F.Supp. 297, A.P. 38a) to explain its finding that
“[A]ny factors affecting the racial composition of
the elementary schools will also have a similar ef
fect upon Smiley.” 303 F.Supp. 294, A.P. 32a.
and that
“[SJegregated situations at Barrett, Stedman, and
Hallett. . . ultimately led to a substantially segre
gated situation at Smiley.” 303 F.Supp. 295, A.P.
33a.
The fallacy of the court’s latter finding on Smiley is dem
onstrated by the map itself, which shows that the Smiley at
tendance area encompassed all of the schools affected by
the boundary changes in 1962 and 1964. The elementary
87At the time of the preliminary hearing, the Negro percentages were:
Stedman, 92.4%; Hallett, 84.4%; Philips, 36.6%; and Park Hill,
23.2% (PX 243, A. 2053a).
— 92 —
school attendance areas are all within the Smiley Junior
High School subdistrict, and boundary changes among them
could have no effect whatsoever on the pupil population at
Smiley. Whether or not the changes were made, the same
children would go on fo Smiley.
Similarly, whether or not crowding was relieved at Sted-
man or Hallett by added classrooms or mobile units, the pu
pils at those schools would continue to live in the Smiley
subdistrict. Nor did the existence or non-existence of Barrett
school change or affect the racial composition of Smiley. The
children in the Barrett area, until 1964, were in an optional
area with Smiley, and thereafter were assigned, in accord
ance with Policy 5100, to Gove Junior High to the south, in
order to improve racial balance at both junior high schools.
The inherent difficulty in the trial court’s findings of fact
as to Smiley led the court of appeals to go beyond the find
ings and refer to testimony in the record that white students
in the Smiley attendance area were permitted to transfer to
another school. 445 F.2d 1001, A.P. 138a. But the court of
appeals failed to notice that the testimony referred to only
four families, one of whom was Negro, during the entire pe
riod from 1964 to 1969, and that the assignments were
made for valid non-racial reasons. Morton, A. 657a. Nei
ther court below expressly found that the school district had
acted to confine Negro pupils in Smiley, and there was no
finding of any school district action causing racial imbal
ance at Smiley at the time of trial.
With respect to the legal conclusion that the four resolu
tion schools were segregated, the essential element that state
action caused the present racial imbalance at those schools
was wholly absent and therefore, no constitutional violation
exists. “Absent a constitutional violation there would be no
basis for judicially ordering assignment of students on a ra
cial basis.” Swann, 402 U.S. 28.
93 —
2. The findings as to the four resolution schools were ul
timately used by the trial court only as a basis for
finding segregatory intent in the rescission of the un
implemented racial balancing resolutions.
The original findings regarding the resolution schools
were made after the hearing on the preliminary injunction
prayed for in plaintiffs’ first cause of action, which the dis
trict court said “deals solely with the purpose and effect of
the rescission of [the] Resolutions.” 313 F.Supp. 63, A.P.
46a (emphasis added). These resolutions, the court added,
“were designed to relieve [de facto] segregation38 and the
tendency toward [de facto] segregation in schools located
in . . . northeast Denver.” 313 F.Supp. 64, A.P. 47a. The
plaintiffs claimed, the court said, that the rescission of the
resolutions was “unconstitutional because its purpose and
effect was to perpetuate racial segregation” in the affected
schools. 313 F.Supp. 64, A.P. 47a. The rescission of the
three earlier resolutions was accompanied by the adoption
of a substitute resolution, No. 1533 (PX 6a, A. 2111a),
which contained all the elements of the substituted resolu
tions except the mandatory pupil reassignment for racial
balancing purposes.
The plaintiffs’ efforts, then, in seeking an injunction under
their first cause of action, was to show that the school
board, knowingly and with segregatory motive, maintained
previously existing racial and ethnic separation and thus re
segregated children on the basis of race and ethnic origin.
88We add “de facto” where the district judge uses the word “segrega
tion” or “segregated” without the “de jure” qualification. The judge
consistently used the unqualified terms in the descriptive or neutral
sense of racial imbalance or de facto segregation not resulting from
school district action. He was careful always to use “de jure segrega
tion” or “de jure segregated” when he meant racial concentrations
caused by school district action. Nevertheless, because “segregation”
is freighted with connotations of deliberate or purposefully imposed
separation, we have used throughout this brief other terms such as
“racial imbalance.”
— 9 4 -
Third and fourth counts, A. 20a, A. 21a. To obtain a decla
ration that the change of plans violated the Constitution
would require a showing that the act of rescission was taken
(a) with segregatory purpose and (b) with the effect of
bringing about racial separation.
We submit that the district court’s findings of state-im
posed segregation in the early 1960s at Barrett, Stedman,
Hallett, and Smiley were not, in the final analysis, the basis
for the court’s order directing the implementation of the re
scinded resolutions.
The injunction order rested, instead, squarely on the con
clusion of law that the rescission “in and of itself was an act
of de jure segregation” in 1969. 303 F.Supp. 295, A.P. 35a;
313 F.Supp. 66-67, A.P. 52a.
The court explained this in the opinion following trial on
the merits:
“Although past discriminatory acts may not be a
substantial factor contributing to present segrega
tion, they may nevertheless be probative on the
issue of the segregative purpose of other discrimi
natory acts which are in fact a substantial factor
in causing a present segregated situation. Thus, in
Part I of this opinion, we discussed the building
of Barrett, boundary changes and the use of mo
bile units as they relate to the purpose of the re
scission of resolutions 1520, 1524, and 1531.”
313 F.Supp. 74, A.P. 70a, n. 18 (emphasis
added).
The purpose of the rescission, the court found, was to
maintain existing de facto segregation in majority-Negro
schools and permit the trend of increasing Negro percent
ages to continue in those schools, such as East, Park Hill,
and Philips, which were still majority-white in 1969. 313
— 95 —
F.Supp. 67, A.P. 53a, 54a; 303 F.Supp. 292, A.P. 27a. The
substitution of the mandatory measures for undoing the ef
fects of racial shifts with a voluntary program (Resolution
1533) was found to be a constitutional violation. 313
F.Supp. 67, A.P. 53a.
The district judge’s last retrospective summary of what he
had done is the most telling. In his opinion of May 21,
1970, three months after his opinion on the merits, he re
called what had happened during an intensive year of hear
ings. trials, and multitudes of briefs and arguments. He had
found, he wrote:
“[T]hat certain schools, elementary, junior high
and high schools within an area of Denver known
as Park Hill, and also some 15 schools within the
core city, were segregated.” 313 F.Supp. 91, A.P.
100a.
Significantly, the district judge is including in the one cate
gory of “segregated”, East High School, Cole Junior High,
and Park Hill and Philips Elementary Schools, all of which
were expressly found not to be de jure segregated, as well as
all of the remaining core city schools, also expressly found
not to be de jure segregated. He was using “segregated”,
standing alone, in his consistent sense of de facto segre
gated. In other words, all schools were found, in 1970, to be
de facto and not de jure segregated (absent effects of re
scission as to the resolution schools).
Then the district judge succinctly stated his finding re
garding de jure segregation:
“[The Order of March 21, 1970] also concluded
that our temporary injunction entered in August
1969, finding a condition of de jure segregation
in certain schools resulting from the Denver
Board of Education’s action rescinding Resolu
— 96
tions 1520, 1524 and 1531, which had been de
signed to have an integrating effect on Park Hill
schools, must be made permanent.” 313 F.Supp.
91, A.P. 100a. (emphasis added)
We submit, accordingly, that the only act of actionable
segregation found by the district court to have effect at the
time of trial was the rescission of the resolutions.39. The
only way the court could extend the injunction to non-segre-
gated schools such as East and Cole was on the basis of a
holding that the rescission was the operative de jure act. 313
F.Supp. 67-69, A.P. 54a-57a.
Thus, the court of appeals, in reviewing and sustaining,
under Rule 52, the district court’s findings of earlier acts re
garding the three elementary schools (445 F.2d 1000-1003,
A.P. 126a-139a), and deeming it unnecessary to decide fur
ther whether the rescission was an act of de jure segregation
(445 F.2d 1003, A.P. 139a), misconceived the final true
basis of the district court’s order enjoining the rescission.
3. The trial court erred in concluding that the rescission
of the resolutions was an act of state-imposed segrega
tion in and of itself.
The full history of the three resolutions and the rescission
thereof is summarized at pp. 44 to 46 of the Statement.
The rescinded resolutions reassigned pupils, effective in
September, 1969, from 15 schools.40 These plans were re
scinded and the substitute plans embodied in Resolution
1533 (PX 6, A. 2111a) were adopted by the Board on June
39Logic, as well as the district judge’s own holdings, leads also to the
same conclusion.
40PX 10, A. 2112a and PX 11, A. 2114a. Pupils from three senior
high schools, four junior high schools, and eight elementary schools
were reassigned. Only four of the fifteen schools were predominantly
minority.
— 97 —
9, 1969, three months before their effective date. The pre
vious plans were never put into effect as far as the pupils
were concerned.41 With the adoption and later rescission of
the resolutions, nothing happened insofar as there was any
school district action to affect racial proportions in the
schools. To hold, as the district court did, that the rescission
was a legislative act which “in and of itself was an act of de
jure segregation” (303 F.Supp. 295, A.P. 35a, 313 F.Supp.
66, A.P. 52a) was an attempt by pure metaphysics to con
vert the substitution of unimplemented planning into an af
firmative unconstitutional act.
The district court relied on Reitman v. Mulkey, 387 U.S.
369 (1967), as authority for the holding. 313 F.Supp. 67-
69, A.P. 55a-57a. That case, we submit, does not support the
holding. The district judge understood Reitman to strike
down an initiated constitutional amendment which had the
effect of repealing legislation “which recognized rights guar
anteed by the equal protection clause.” 313 F.Supp. 67,
A.P. 55a. The amendment actually had the effect of repeal
ing pro tanto all statutes forbidding private discrimination
in housing. Its infirmity was not the repeal, but the finality
of the action, which disabled every level of government
from treating the problem, thereby authorizing and constitu
tionalizing the private right to discriminate. 387 U.S. at
377.42
In the case at hand, the rescission in no way disabled the
board from continuing to deal with the educational prob
lems of racial or socio-economic concentrations. After the
41As the district court put it, “True, the resolutions had not been
carried out, but extensive preparations were in progress.” 313 F.Supp.
67, A.P. 53a.
42In Hunter v. Erickson, 393 U.S. 385, 390 (1969), this Court ex
pressly stated that it was not holding that the mere repeal of legisla
tion enacted for the benefit of racial minorities violates the Fourteen
th Amendment. James v. Valtierra, 402 U.S. 137, (1970) applied the
same principle to repeal of legislation concerning other classifications.
98 —
rescission, the Board could and did take further legislative
action in this regard (e.g. Resolution 1533, PX 6a, A.
2111a, and Resolution 1562, 445 F.2d 1010, A.P. 156a).
Nor were the rescinded resolutions aimed at recognizing
constitutional rights. Of the 15 schools from which pupils
were to be reassigned, only 4 had been found to have been
the object of prior discriminatory acts, and, in those cases,
as we have shown, there was no finding by the court of pres
ent segregatory effect and, accordingly, no existing consti
tutional violation at the time of trial as to any of those
schools. Thus, the effect of the rescission was to repeal a
mandatory racial balancing plan originally adopted in re
sponse to an undertaking, for educational reasons, to in
crease efforts to find solutions to the “educational problems
of de facto . . . segregation.”43 The resolutions were to im
plement, as an educational policy, a racial balancing plan.
This was within the discretionary power of the school board.
But where no constitutional violation existed, the district
court exceeded its authority in ordering the rescinded plans
carried out. Swann, 402 U.S. 16.
The evidence was that the three resolutions represented
pilot plans educationally, and were part of the long-range
planning of the school district for improving educational
quality. This is a process of trial and error, which all experts
agreed was an extremely complex matter in which no cer
tain answers were known. Any rule of constitutional law
which would impute segregatory purpose and effect to the
repeal of plans, proposed as a matter of educational policy,
which include, among other measures, the reduction of racial
or ethnic concentrations, would have a chilling effect on fu
ture educational efforts to solve the complex problems of
public education. As Mr. Justice Harlan observed, in his
dissent in Reitman,
“3Resolution 1490, (PX 2, A. 1992a-1996a).
— 99
“I think that this decision is not only constitution
ally unsound, but in its practical potentialities
short-sighted. Opponents of state anti-discrimina
tion statutes are now in a position to argue that
such legislation should be defeated because, if en
acted, it may be unrepealable.” 387 U.S. at 395
Educational policy-making by the local school districts of
the Nation should not be thus inhibited by the threat of
being permanently enjoined to carry out every proposed in
novation and experimental educational plan which happens
to include measures for the reduction of racial or socio-eco
nomic imbalance as a matter of educational policy,
C. THE SCOPE OF THE REMEDY IS LIMITED BY
THE EXTENT OF A VIOLATION.
Petitioners seek system-wide desegregation of the Denver
public schools.
The background against which petitioners urge this argu
ment regarding remedy is that of a school district practicing
“covert segregation” with “hidden motives” involving
“shams . . . surreptitous practices” . . . and “underhanded
subterfuges.” In this case there were no findings or evidence
of such as to the Denver school district.
The findings of deliberate discrimination in the Denver
school system, if sustained, are limited to only four predomi
nantly minority schools which are only a small percentage
of the 119 schools in the District and are located in a rel
atively small geographical area. No issue of system-wide dis
criminatory violations is before this court.
One of the axioms stated in Swann which should apply to
a unitary system as well as a dual system is that:
“(T)he nature of the violation determines the
scope of the remedy. Swann, 402 U.S. 16.
— 1 0 0
Accordingly, the scope of the remedy must be limited to the
geographical area and the schools in that area.44
In the Denver case, the nature of the violation, as we
have shown was either the construction of one elementary
school in 1960 and several minor elementary school bound
ary changes in the early 1960s, all in northeast Denver, or it
was the modification of unimplemented mandatory racial
balancing plans in 1969 involving the same area. If the vio
lation was the former, it had no continuing or present effect
at the time of trial because of demographic changes in the
meantime. If the latter, the violation has been fully and pre
cisely remedied by the reinstatement of the rscinded plans
by injunctive decree of the district court.
Petitioners urge that various practical considerations re
quire a remedy going far beyond the few schools where seg-
regatory acts were found. The considerations they have dis
cussed find no basis in the evidence nor in the findings of
the courts below. The practicality argument grows out of
a series of dual system cases involving dilatory practices
resulting in unacceptable lack of progress. One of these
cases, Green, 391 U.S. 430, illustrates the proper applica
tion of practical considerations. There, this Court had be
fore it a problem involving a dual system operating two
schools. The most obvious way to have created a unitary
system in that situation was simple neighborhood zoning,
391 U.S. at 442, n. 6. This simple and workable solution
had clearly been by-passed in favor of a scheme, predictably
ineffective in that rural community, of “freedom of choice.”
44Accord: Taylor v. Board of Education, 191 F.Supp. 181, (S.D.N.Y.
1961) appeal dismissed. 288 F.2d 600 (2nd Cir. 1961), 195 F.Supp.
231 (S.D.N.Y. 1961) affd. 294 F.2d 36 (2nd Cir. 1961) cert. den.
368 U.S. 940 (1961) The district court found that one elementary
school (Lincoln) had been segregated by state action. The remedy was
limited by the nature of the violation and the decree was for the de
segregation of that school and did not require system-wide desegrega
tion.
— 101 —
This Court simply refused to accept a remedy based on the
oretical and unrealistic assumptions where a far more feasi
ble and specific remedy was at hand. The same pragmatic
approach here would find no further remedial intervention
necessary in Denver.
We submit that there is no evidence in this case and no
findings by the courts below which would warrant or consti
tutionally require system-wide racial balancing of the Den
ver school system.
III.
THE NEIGHBORHOOD SCHOOL POLICY, AS AP
PLIED IN DENVER, DOES NOT OPERATE TO DE
PRIVE ANY PUPIL OF AN EQUAL EDUCATIONAL
OPPORTUNITY, AND THE HOLDING OF THE
COURT OF APPEALS TO THAT EFFECT SHOULD BE
AFFIRMED.
A. INTRODUCTION
1. Neighborhood school policy—generally.
The neighborhood school policy, when impartially main
tained and administered, does not violate the Constitution
even though the result of such policy is racial imbalance in
certain schools of the system.
Various circuits have considered this question and all have
upheld the constitutionality of the neighborhood school
policy.43
iSDowns v. Board of Education of Kansas City, 336 F.2d 988 (10th
Cir., 1964), cert, den., 380 U.S. 914 (1965); Deal v. Cincinnati
Board of Education, 369 F.2d 55 (6th Cir., 1966), cert, den., 389
U.S. 847 (1967); Bell v. School City of Gary, 324 F.2d 209 (7th
Cir., 1963), cert, den., 337 U.S. 924 (1964), Springfield School Com
mittee v. Barksdale, 348 F.2d 261 (1st Cir. 1965).
— 102
2. Equality of Educational Opportunity.
Equality of educational opportunity is conceded to be a
constitutional right. It is also an ultimate objective in all ed
ucational planning. The elusive question is what constitutes
equality of educational opportunity? If all children were
born with equal mental capabilities and had equivalent envi
ronmental advantages, equal educational resources could be
allocated mechanically.
The facts of life are different in that the planning and
execution of educational programs is a complex social
science.
Does the providing of equal fiscal, physical and teaching
resources to all students and all schools constitute the pro
viding of equal educational opportunities? Or, is a school
district constitutionally required to evaluate the needs of
children individually and by class (socio-economic or
other) and provide greater but unequal resources to those
who are more disadvantaged than others in order to arrive
at the “equal protection” threshold? There is no question
that such evaluations are repeatedly made as matters of edu
cational policy. There is also no question that a school dis
trict constitutionally may allocate resources unequally for
specific classes, e.g., mentally retarded, physically handi
capped or culturally disadvantaged, as a matter of educa
tional policy. The question presented in this case is whether,
as a matter of Constitutional Law, courts should decree for
all the nation, a requirement that all low-achieving students
in a school district shall be considered a new class under the
Constitution, and order the implementation of a new educa
tional policy formulated by the judiciary and not by educa
tional experts? It is obvious that such is beyond both the
power and the expertise of the courts.
For years before the institution of this suit the school dis
trict in Denver had sought the optimum of equality of edu
— 103
cational opportunity for all students. School buildings were
maintained equally, core city schools were not shorted on
educational materials but, to the contrary, they were pro
vided extra dollars, lower pupil-teacher ratios, use of para-
professionals, compensatory education programs, and many
other programs and resources not made available to other
schools.
Thus an unequal but greater quantity and quality of re
sources were furnished the court-designated schools which
were found to be “inferior”. The fact that the median
achievement scores on standardized tests were below aver
age in those schools was in spite of such action. What would
have been the result but for the greater efforts and facilities
furnished to the specific schools? Undoubtedly even lower
median achievement scores and more drop outs.
Until sufficient controlled studies are made with empiri
cal results, any attempt by the courts to decree educational
programming through assignment of pupils by race, alloca
tion of resources, or designation of other criteria would be
well beyond the ability of the courts to perform and would
constitute an unlawful exercise of the power of the courts
under the present state of educational social science.
As is shown hereafter, the evidence is insufficient to es
tablish any constitutional deprivation of “equal educational
opportunity.”
3. Points argued.
Petitioners claim that minority children attending certain
Denver schools were consciously treated differently and dis-
criminatorily and have been denied equal educational oppor
tunities. We reply arguendo as follows: First, the existence of
unequal educational opportunities in such schools, if true,
was not caused by discriminatory acts of the respondents,
— 104 —
and did not, therefore, constitute a constitutional violation
warranting judicial intervention.
Second, the trial court’s conclusion that certain schools
were “inferior” on the basis of median scores on standard
ized achievement tests was clearly erroneous. Third, there
was no competent evidence in the record to support the trial
court’s conclusion that racial or ethnic imbalance was the
cause of inferiority in any schools.
Fourth, the apparent lack of achievement in certain
schools not being the result of state action (neither unequal
allocation of resources nor racial or ethnic concentration)
the remedy to alleviate existing educational difficulties is
outside the province of the federal courts, and must be fash
ioned by the school authorities as educational policy.
B. THE SCHOOL DISTRICT DID NOT CAUSE THE
ALLEGED INFERIORITY OF THE COURT-DES
IGNATED SCHOOLS.
1. Summary of district court findings that low test scores
evidenced inferior schools, that racial and ethnic con
centrations caused inferior schools, but that the con
centrations were not caused by the school district.
A clear summary of the claims as alleged in petitioner’s
complaint is found in the opinion of the court of appeals.
445 F.2d 994, A.P. 124. Under the main or second cause of
action, three counts were urged at time of trial ( the fourth
count having been expressly abandoned). The first count,
alleging deliberate and purposeful state-imposed segrega
tion, was rejected by the trial court. The second count,
which alleged an unequal allocation of resources to the core
city schools was also, in effect, rejected by the district court.
The third count attacked the neighborhood school policy,
even when operated without segregatory intent, claiming
105 -—
that it causes racial and ethnic segregation in some schools,
which, in turn, denies equal educational opportunity to pu
pils assigned there. A. 29a, 30a.
The district court made two rulings on the third count.
First, the court denied relief merely upon a showing of ra
cial concentrations resulting from the application of the
neighborhood school policy, citing Downs and Dowell. 313
F.Supp. 76, A.P. 74a-75a.
Then the court found that certain schools with high pro
portions of Negro or Spanish surnamed pupils ( the court-
designated schools), although not segregated by state ac
tion, were, nevertheless, providing an unequal educational
opportunity which was caused by the racial and ethnic con
centrations.
This circular reasoning was rejected by the court of ap
peals, which reversed the trial court on the ground that
there was no finding of state action causing the racial and
ethnic imbalance said to be the cause of the lower achieve
ment scores and inferior educational opportunity.
The trial court found that petitioners were not entitled to
relief upon a mere showing of de facto segregation (313
F.Supp. 73, A.P. 67a), and that “[A] neighborhood school
policy, even if it produces concentration, is not per se un
lawful if it is carried out in good faith and is not used as a
mask to further and perpetuate racial discrimination.” 313
F.Supp. 76, A.P. 74a. The district court then rejected peti
tioners’ claim that “the neighborhood school policy has been
maintained by the School Board for the purpose and with
the effect of segregating minority pupils.” 313 F.Supp. 76,
A.P. 73a.
The trial court’s findings of unequal educational oppor
tunity at the court-designated schools rest solely on the evi
dence of low average achievement and low morale (313
— 106
F.Supp. 77, 91, A.P. 76a, 100a) and that this condition was
caused by racial or ethnic concentrations. 313 F.Supp. 80-
82, A.P. 83-86a.
The district court reaffirmed this finding in the clearest
terms in its later opinion on remedy. Reviewing the earlier
order, the district court stated:
“We found at the trial that the schools in question
became segregated as a result of neighborhood
housing patterns—at least that this was the sub
stantial factor in producing the result. It was not
caused by positive law or as a result of official ac
tion. 313 F.Supp. 81, 82, A.P. 111a. (emphasis
added)
Thus, the trial court, having found unequal educational op
portunity and having identified its cause as racial or ethnic
concentration, nevertheless found that the concentration
was not caused by the school district.
The trial court then became concerned with educational
principles as opposed to Constitutional Principles and deter
mined that, despite its findings that the neighborhood school
policy was constitutional even though it produces (racial)
concentrations, the court-designated schools should be deseg
regated.
2. The court of appeals, in view of the trial court’s find
ings, correctly reversed, finding no state action caus
ing the educational outcomes at the schools in ques
tion.
(a) The trial court had found that the school district did
not cause the racial imbalance.
The opinion of the court of appeals shows that it fully un
derstood that the District Judge had (1) found unequal ed
ucational opportunity in the court-designated schools on the
— 107 —
evidence of low test scores and high drop-out rates and
other evidence of low morale, and (2) had concluded that
the racial and ethnic concentration, “regardless of its
cause,” was the cause of the unequal educational opportun
ity. 445 F.2d 1003, A.P. 142a The court of appeals agreed
with the district court that constitutional rights would be vi
olated if the education in one school was sub-standard when
compared with another school within the same school dis
trict, “provided, the state had acted to cause the harm.” 445
F.2d 1004, A.P. 143a (emphasis added).
But the court of appeals also understood that the district
court had expressly found that the school district had not
caused the racial and ethnic concentrations which had been
found, in turn, to be the cause of the educational problems.
The court of appeals itself concluded that the “educational
difficulties [arise] from circumstances ouside the ambit of
state action.” 445 F.2d 1004, A.P. 144a. Later, in the dis
cussion of plaintiffs’ cross-appeal, the appellate court put it
more plainly:
“The trial court held that cross-appellants
[petitioners herein] failed in their burden of prov
ing (1) a racially discriminatory purpose and
(2) a causal relationship between the acts com
plained of and the racial imbalance admittedly
existing in those schools.” 445 F.2d 1006, A.P.
418a
Racial imbalance in the schools can, and did in Denver, de
velop over a period of years when an impartially adminis
tered and racially neutral neighborhood pupil assignment
policy was followed by the school district. But that policy,
while it permits racial and ethnic change within school sub
districts, did not cause the adventitious racial imbalance in
the schools, and both courts below expressly so found.
— 108 —
(b) The court of appeals correctly based its reversal of
the district court on the absence of findings of causal
relationship.
Petitioners, ignoring the fact that the district court ex
pressly found no state action in the development of racial
and ethnic imbalance in the court-designated schools, pro
ceed to speculate as to various explanations for the same
finding by the court of appeals. Rule 52, F.R.C.P., is an
adequate explanation.
Petitioners suggest that the court of appeals confused in
dicia of inferiority with the cause of “inferiority”. To the
contrary, the court of appeals correctly noted that the indi
cia (low test scores and dropout rates) were obviously not
the cause of the low test scores. 445 F.2d 1004, A.P. 144a.
Petitioners suggest that the court of appeals may have
overlooked the district court’s finding that racial and ethnic
imbalance caused the alleged unequal educational oppor
tunity. The court of appeals was entirely aware of this find
ing as it was the basis of its reversal as to the core city
schools.
Finally, petitioners suggest that the court of appeals over
looked, in the record, the multiplicity of decisions by the
school board (as to school locations, size and boundaries,
pupil assignments, and educational input) as factors in
causing unequal educational opportunity. To the extent
these factors were part of the neighborhood school policy,
they were held by the district court not to have caused the
racial and ethnic imbalances. To the extent they refer to dif
ferences in teacher experience, the district court considered
it a symptom, not a cause (313 F.Supp. 81, A.P. 83a), and
the court of appeals found it insubstantial:
“[W]e cannot conclude from that one factor
[teacher experience]—as indeed neither could the
- 1 0 9 -
trial court—that inferior schooling is being of
fered.” 445 F.2d 1004, A.P. 144a.
At the hearing on remedy, Dr. James S. Coleman testified
that teacher experience and advanced degrees were not im
portant factors (A. 1557a), and Mr. Smith, an elementary
principal called by the plaintiffs confirmed that his new
teachers were as capable and competent as those with more
experience (A. 1701a).46
(c) The court of appeals did not require a showing of ra
cial purpose, whether or not it is required.
The other claimed error, that the court of appeals re
quired a finding of intent to deny equal educational oppor
tunities to the pupils in the racially and ethnically imbal
anced schools, is not relevant in view of the district court’s
finding that the imbalance in the core city schools was not
“de jure” or state imposed. In any case, the appellate court’s
reference to racially motivated intent (in this part of its
opinion) occurs only in connection with its observation that
instances of judicial intervention in school systems in Pon
tiac, Cook County, District of Columbia, Manhassett,
Hempstead, and Pasadena were cases where de jure segre
gation was expressly found, with its necessary element of ra
cial purpose. 445 F.2d 1006, A.P. 1480.
This case is clearly distinguishable from Burton v. Wil
mington Parking Authority, 365 U.S. 715 (1961) in which
the issue was whether exclusion by race from a public ac
commodation could be excused by delegating state author
ity to a private party by contract. Here we are concerned
with the power of the courts over educational decisions in
volving complex factors not caused by state action, not at
40“Anyone who believes [inexperience) is a serious disadvantage for a
teacher, has a faith in experience and degrees which is justified by no
known evidence.” N. Glazer, Is Busing Necessary? Commentary,
March, 1972, p . 5 0 ,------CONG. R E C .------ (daily ed. March 13,
1972, S-3855).
— 110 —
tempted delegation of state authority with concomitant un
constitutional wrongs.
(d) The neighborhood school policy does not operate as
a racial classification.
One other theme in petitioners’ argument on this point
remains to be dealt with. This is the contention that the
school district maintained two kinds of schools, good
schools and bad schools, and that the school district ar
ranged to have good schools where non-Spanish white chil
dren predominate and bad schools where Negro and Span
ish surnamed children predominate.47 This means, the argu
ment goes, that unequal schools were being provided on the
basis of a racial or ethnic classification, which was not justi
fied by any compelling state interest, and therefore was in
violation of the Fourteenth Amendment.
But it is at this point that the argument loses sight of its
causal predicate, which the court of appeals was careful to
keep in view. The cause of the good schools and bad
schools, according to the petitioners and the district court
(313 F.Supp. 82, A.P. 86a), was the absence or presence of
concentrations of children of certain racial or ethnic minori
ties in the schools. If this is the cause, then the school dis
trict cannot be providing or arranging for a poor school at
one place and a good school at another unless it also controls
the racial or ethnic makeup of the schools. This control, the
courts below both held, the school district simply did not
have or exert.
Nor did the school district set about to select or identify
schools with high Negro or Spanish surname concentrations
and proceed to arrange inferior education at such schools.
This was manifestly impossible because it was the racial or
47“The violation found was not cast in terms of racial segregation but
rather as the State’s unequal provision of public education to Den
ver’s minority children.” (Pet.Br., p. 117).
- I l l -
ethnic concentrations, not the school district’s allocation of
resources to the schools, which caused, the trial court held,
the inferior education.
In other words, since Denver’s neighborhood school pol
icy is racially neutral, it does not operate as a mechanism
for racial or ethnic classification, and any racial or ethnic
concentration which the neighborhood school policy permits
or produces is not attributable to school district action,
but to housing patterns. Accordingly, even assuming ar
guendo that the evidence in this case supports a finding that
the racial concentration in some schools causes unequal ed
ucational opportunity in those schools, the inequality can
not be attributable to the racially neutral classification or to
school district action.
3. The court-designated schools were located, built, and
assigned attendance areas without any segregatory
purpose or effect, and the school district has done
nothing since to affect their racial composition.
The Denver school system is not and never has been a
dual system (445 F.2d 1006, A.P. 148a), and the school
authorities have not refused to admit any student at any
time because of racial or ethnic origin. 313 F.Supp. 73,
A.P. 67a.
Thus, when each of the court-designated schools was
built and assigned its attendance area,48 the school system
was unitary in every sense of the word. Plaintiffs failed to
prove that the school authorities or any other state agency
had done anything to affect the racial composition of these
schools.49
48The newest of the court-designated schools (Smith) was built in
1955. (PX 106, A. 2042a; PX 20, Appendix 13-18).
49Except, arguendo, at Stedman and Hallett, but with no effect on
their present racial compositions.
— 1 1 2 — -
Not only did the courts below expressly find that there
was no such segregatory action, as discussed above, but the
elementary school subdistrict boundary maps in evidence in
this case show this graphically.
4. Allocation of resources to core city schools were equal
or greater.
In their brief, petitioners enumerate fourteen points as in
dicia of unequal educational opportunities in the court-des
ignated schools. An analysis of those points discloses dupli
cations, repetition of the same matters and nothing of a sub
stantial objective nature to prove causation of alleged inferi
ority of the schools.
There was no proof and no finding of inadequate or dis
parate physical facilities or educational materials in the core
city schools as compared to those in other parts of the city.
Some of the buildings located in the core city were older,
but the undisputed evidence was that they were as well
maintained as any of the others in the city. Of the court-des
ignated elementary schools, only 4 had been constructed be
fore 1921 and three of those have had new additions since
1960 with the fourth one currently being replaced with a
new building. None of the court-designated secondary
schools was constructed prior to 1925. See Statement p.
47, supra, as to further details.
Much was made of teacher inexperience and trans
fers. All teachers in all schools had college degrees and
there was no evidence of assignment to court-designated
schools of any teacher who was any less educated than those
assigned to other schools. There was no evidence that
younger teachers were less effective in teaching than older
teachers; in fact, the evidence was to the contrary. Much
can be said for the greater effectiveness of younger teachers
as compared to older ones, particularly many of those ap
113 —
proaching retirement age at the elementary level. There was
no evidence and no findings that teachers were more or less
competent by reason of their greater or lesser experience in
the Denver system or in a single school. See Statement, pp.
49,50.
The dollar inputs to the predominantly minority schools
were not only equal but often in excess of the amounts allo
cated to the other schools. See Statement, pp. 50, 51, supra.
The curricula varied among schools depending on the needs
and interests of the pupils but the same basic subjects were
taught at each and every one of the schools. A. 1366a.
In the end, the only objective evidence of a cause in all of
these fourteen points upon which petitioners could rely is that
of teacher inexperience, assignment and transfer; but both
lower courts found this was not a material factor in the lack
of achievement by the pupils in the court-designated
schools.
The other items contained in the fourteen points are not
causes (e.g., drop out rates and achievement results) or are
discussed in other parts of this brief (e.g., neighborhood
schools and boundaries).
The resources allocated to the core city schools being at
least equal and in many instances greater in quality or quan
tity, the conclusion of the trial court of “inferiority” in the
court-designated schools must rest primarily upon outputs
or results rather than inputs or resources. By reason of other
factors not within the control of the state, particularly the
early childhood deprivations of children from low socio-eco
nomic environments, it is erroneous to infer that below
average outputs or achievement levels were caused by un
equal inputs or resources.
— 114 —
C. ON TWO OTHER GROUNDS THE DISTRICT
COURT’S JUDGMENT SHOULD HAVE BEEN
REVERSED.
There were two additional reasons for refusing to affirm
the district court’s conclusion that Fourteenth Amendment
rights were being denied to pupils attending the court-desig
nated schools. The court of appeals did not find it necessary
to discuss these additional reasons because of the lack of
any finding of a causal connection to state action. But these
additional deficiencies in the district court’s approach to the
core city schools should be discussed, we believe, because of
their importance to the entire question of equal protection
principles as they apply to public education.
The district judge succinctly summarized his methodol
ogy and perception of the problem in the post-trial opinion
on remedy:
“[T]he [de facto] segregated core city schools in
question were providing an unequal education
opportunity to minority groups as evidenced by
low achievement and morale. The causes of this
inferiority were held to be the segregated condi
tion, together with concentration of minority
teachers, low teacher experience and high teacher
turnover in each of the schools.” 313 F.Supp. 91,
A.P. 100a
Indicia are clearly distinguished from causes, in the court’s
view. Evidence or indicia of “inferior” schools were found
to be low achievement and morale; the cause of such “inferi
ority” was held to be primarily (313 F.Supp. 81, A.P. 83a,
313 F.Supp. 82, A.P. 86a), racial or ethnic concentrations,
together with lower teacher experience. Respondents have
previously set forth the evidence on concentration of minor
ity teachers, teacher experience and turnover. See State
ment, pp. 47-50.
— 115 —
Both the indicia and the cause of what the district court
found to be unequal educational opportunity in its desig
nated schools must be questioned,
1. Achievement test scores are not a valid basis for com
paring educational opportunity among schools.
Of the two signs or indicia of inferior schools, one, low
morale, was the consequence of the other, pupil achieve
ment.50 Low morale was a combination of (a) relatively
high teacher turnover, which produces relatively lower
teacher experience (313 F.Supp. 79-80, A.P. 80a-82a),
and (b) relatively high pupil dropout rates (at the secondary
level) 313 F.Supp. 80, A.P. 83a. In other words, the district
court interpreted the tendency of teachers with seniority,
under the negotiated agreement with the teachers’ bargain
ing agent, to transfer to other schools, and the tendency of
pupils to leave school when legally permitted, as evidence
of low morale within the schools involved. But the court
evidently attributed these factors to the low pupil achieve
ment in the schools.
Thus, the sole, or at least dominant, sign of an inferior
school, in the district court’s view, was relatively low me
dian scores, by school, on standardized achievement test
scores. We submit that such evidence is not sufficient as a
basis for finding a violation of the Fourteenth Amendment.
The results of tests involved in this suit, the Stanford
achievement test given in May, 1968, were reported (PX
83, 379) in two different ways. Both displayed the scores of
the individual pupils, by school, along a scale. One scale (a
percentile chart) compared the scores of the school’s pupils
against nation-wide scores of pupils at that grade level. The
other scale (a grade equivalent chart) compared the pupils’
50“Low standards and consequently low morale.” 313 F.Supp. 77,
A.P. 76a. (emphasis added).
- 1 1 6 -
scores against the test publisher’s grade equivalent ex
pressed by the grade number followed by a decimal point
and a number expressing the month of the school year.51
There were eight different tests in the Stanford battery.
Plaintiffs averaged the median grade equivalent scores for
the eight tests, by school, and compared these averages with
a city-wide average, similarly computed. This analysis
showed that in the third grade in 1968, the Denver average
median grade equivalent was 3.6. Of the court-designated
elementary schools, their average grade equivalent ranged
from 2.7 (Mitchell, 70.9% Negro) to 3.4 (Elmwood,
91.6% Spanish surnamed) and averaged 3.0. In other
words, the average performance on this test by children in
the schools selected by the court was about 6 months behind
the city-wide average.
But both the percentile charts and the grade equivalent
charts also show the range of performance, and these charts
show that third grade children at Mitchell, for example,
tested as high as 7th grade 5th month in word study skills,
and above the 85th percentile, compared with the national
performance, in all eight tests, and at the 99th percentile in
three of them. This wide range of individual pupil perfor
mance in the court-designated schools was virtually the same
as in all other schools in the Denver system.
Another comparison made with these test data by the
school district was between expected or predicted achieve
ment test performance based on IQ tests given earlier, and
the actual achievement test results. This would give the staff
and teachers some measure of how well their pupils were
performing on the achievement tests in relation to their abil
ities as measured by the IQ tests. Generally, all Denver
school children performed at or above their expectancies.
The reports to teachers and parents, accordingly, could
51Thus, 3.6 means third grade, sixth month.
— 117 —
speak positively and encouragingly about the results of the
pupils’ and teachers’ efforts. Where results fell short of ex
pectancies, the report said so.52
All of this shows, we submit, that pupils in the court-des
ignated schools achieved not only throughout the entire
range of performance, but also in accordance with their ca
pabilities as measured by the IQ tests. This does not show
denial of opportunity to achieve on a district wide basis.
Recent intensive studies of the Coleman Report (PX
500) reach the same conclusion. Henry S. Dyer, Vice Presi
dent of the Educational Testing Service, writing on “The
Measurement of Educational Opportunity” in the published
papers deriving from the Harvard University Faculty Semi
nar on the Coleman Report53 54 criticizes both inputs and out
puts as valid measures of educational opportunity. Dyer re
gards it as a serious fallacy to assume that “any difference
in the results constitutes a measure of the degree to which
[schools] are unequal.”64 He points to both dropout rates
and achievement test scores as the usual measurements of
results, and says of the latter:
“The tendency is to assume that if on a reading
test the 6th-grade pupils in a slum school average
X points lower than those in a school in white
suburbia, then X is the measure of the difference
between the two schools in the effectiveness of
reading instruction. The case may be quite the
•^Petitioners do not quote, at page 49 of their brief, the full comment
on the Wyatt School tests, which said, “A comparison of these scores
with those of pupils tested in 1953 reveals gains at all levels of ability.
Several deficiencies have been corrected, and the general position of
the more able and average pupils is much stronger. A need is indi
cated for continued remedial work in the language area. The faculty
should be well pleased with these achievements.” (PX 379).
53MostelIer and Moynihan, On Equality of Educational Opportunity,
Vintage Books, New York, 1972.
54Id, p. 515.
— 1 1 8 -
opposite: the slum school may be more effective
than the suburban school in upgrading reading
competence, especially in light of the deficiencies
it has had to overcome. Thus, the pupils’ level of
performance as they emerge from any phase of
the educational system tells nothing in itself
about how well the system is functioning. One
needs to know, in addition, what the pupils have
gained during the time they have been under in
struction, how much of the gain may be reason
ably attributed to the instruction, and how much
to factors beyond the reach of the school.” (Id, p.
515)
As an advocate for petitioners’ position has put it, “Inso
far as the [equal educational opportunity] theory relies in
part on educational outcomes, especially to prove that either
inequality or harm result from disparate inputs, it is
suspect.”6® Here, there was no finding of effectively dispar
ate inputs, and the court was left only with a disparity of
outcomes—differences in achievement test scores. On such
a suspect basis a constitutional violation should not rest.
Dr. Coleman has also published a most enlightening cri
tique of his earlier publications and frankly states it was not
intended to and should not be used as forensic evidence in
determining constitutional issues.* 58 He says:
“It’s probably not appropriate to say on achieve
ment grounds alone that segregated schooling does
not provide equality of educational opportunity.
There is not sufficient evidence to show that the
kind of benefits to lower-class children that arise
05Dimond, op. cit., pp. 13, 14.
S8Coleman on The Coleman Report, Education Researcher, March,
1972, Vol. 1, No. 3, p. 13, published by American Educational Re
search Association, Wash. D.C.
— 119 —
from a socio-economically heterogeneous or ra
cially heterogeneous school can’t also be provided
by other means. I don’t think a judge can say
there is prima facie evidence of inequality in edu
cational opportunity on achievement grounds if
there is school segregation. In this sense, I think
judges have looked at that study and used the re
sults more strongly than the results warrant.
“I remain uncertain about the appropriate role
of social science evidence or statistical evidence
in relation to the courts. The concept of evidence
by lawyers or judges is very different from the con
cept of evidence in social science. When results
show that certain kinds of attendance patterns pro
vide higher achievement for children from lower
socio-economic levels, as our results did, the re
sults ought to contribute to the question of wheth
er schools should be integrated, and to the de
cision of how much effort should be put into
school integration. But I don’t think that a judicial
decision on whether certain school systems are
obeying or disobeying the constitution ought to
be based on that evidence.”
2. The conclusion that racial or ethnic concentrations
are the principal cause of “inferior” schools is not
supported by expert opinion relevant to Denver or
by any other competent evidence.
The only expert on this issue called by petitioners at the
trial on the merits was Dr. Dan Dodson, professor of educa
tion from New York City.31 Dr. Dodson admittedly knew
nothing of the problems in the Denver schools (A. 1507a)
nor of the minority groups in Denver. A. 1506a. He testi- 57
57It was later, at the hearing on the question of remedy, that the court
heard the other educational experts.
— 120 —
fied at length as to generalities of achievement as related to
race and socio-economic class. The trial judge pressed Dr.
Dodson for his “opinion as to causation.” A. 1472a. Dr.
Dodson answered by saying that a school has a problem of
adjusting its programs to minority children, and then drifted
off into an abstract account of negative community atti
tudes and low morale in predominantly minority schools.
A. 1473a. He did not directly answer the question until
cross-examination, when he finally stated:
“Q. Now, isn’t it also true that in your study you
found that race is not causally related to the
achievement level in these minority schools? A.
That’s right.” (A. 1508a)
The court also gathered from Dr. Dodson that the “Negro
community” typically regards a majority-Negro school as in
ferior. 313 F.Supp. 81, A.P. 84a. But the professor was not
speaking of Denver, where, in an opinion survey conducted
for the Special Study Committee in 1963, only 4% of
Negro parents believed that minority children have less op
portunity for a good education in Denver’s schools. PX 20,
Appendix 38, Table 2.
The trial court noted that the two study committees had
recognized the possibility that racial and ethnic concentra
tions might be a causative factor, and that the school board
had adopted a policy recognizing the desirability of reduc
ing such concentrations. 313 F.Supp. 81, 82, A.P. 85a, 86a.
But views and policy goals such as these do not suffice as
proof of a proposition upon which educational policy is to
be constitutionally mandated by judicial intervention.
The evidence in this case is, in fact, to the contrary. The
significant cause of poor achievement test performance, the
experts agreed, was socio-economic class, not race. In addi
tion to Dr. Dodson’s admission to that effect (A. 1508a),
— 121
Dr. James S. Coleman of Johns Hopkins University, author
of the celebrated Coleman Report on Equality of Educa
tional Opportunity testified:
“The Court: Well they say it’s the middle class—
upper middle class influence that produces most
significantly; whether the students are Negro or
whatever they are.
“The Witness: Yes, sir. That’s certainly the evi
dence of our survey.” (A. 1535a, 1536a)
And later:
“Q. And, regardless of the race, if it’s a low so
cio-economic homogeneous neighborhood, you
find low achievement? A. Yes.
“Q. And that is true regardless of the racial com
position of the school, if it’s a low socio-economic
area? A. Yes.”
“The Court: Well, that’s a problem for the legis
lators or the school board; not for the Court.” (A.
1558a)
In short, if inferior schools are not caused by racial or
ethnic concentrations, and if, further, as both courts below
have held, such concentrations were not caused by the
school district, then the court of appeals was surely correct
in refusing to find a violation of the equal protection clause
of the Fourteenth Amendment.
— 122
D. EDUCATIONAL DIFFICULTIES ARISING FROM
CIRCUMSTANCES NOT CAUSED BY STATE
ACTION ARE NOT WITHIN THE POWER OF
FEDERAL COURTS TO RESOLVE, THE REME
DY FOR EDUCATIONAL PROBLEMS AS DIS
TINCT FROM CONSTITUTIONAL VIOLATIONS
MUST BE LEFT TO THE PLENARY POWERS
OF SCHOOL AUTHORITIES.
1. Absent a constitutional violation, there is no authority
for a court to order a remedy.
The court of appeals held that federal courts are without
the power to play a role in correcting educational deficien
cies arising from circumstances outside the ambit of state
action 445 F.2d 1004, A.P. 144a, 145a. This holding is
soundly based not only on the decisions of four circuit
courts which have considered cases of racial imbalance not
caused by state action {Downs, Deal, Barksdale, and Bell
supra), but also on this Court’s decision in Swann:
“. . . [I]t is important to remember that judicial
powers may be exercised only on the basis of a
constitutional violation. Remedial judicial au
thority does not put judges automatically in the
shoes of school authorities whose powers are
plenary. Judicial authority enters only when local
authority defaults.
“School authorities are traditionally charged
with broad power to formulate and implement ed
ucational policy and might well conclude, for ex
ample, that in order to prepare students to live in
a pluralistic society each school should have a
prescribed ratio of Negro to white students reflect
ing the proportion for the district as a whole. To
do this as an educational policy is within the
— 123
broad discretionary powers of school authorities;
absent a finding of a constitutional violation,
however, that would not be within the authority
of a federal court.” (402 U.S. 1, at 16)
2. The scope of the remedy is limited by the Civil Rights
Act of 1964 as to “de facto segregation”.
The district court recognized that it could not, under
existing law, remedy self-imposed “segregation” resulting
from housing patterns. Nevertheless, it determined that racial
imbalance beyond an arbitrary standard set by the court
created a denial of equal educational opportunity. The
court’s remedy for such denial was reduction of the minority
pupil population in each affected school to a point below
50%. This necessarily required reassignment of pupils based
on race alone. It also necessarily required, given the geog
raphy and housing patterns in Denver, extensive busing to
accomplish such reassignment.
Thus, the trial court’s remedy was contrary to the various
Circuit Court holdings previously cited herein that de facto
segregation or racial imbalance cannot be judicially changed.
In adopting such a remedy, the district court imposed its
notions of social and educational policy upon a coordinate
branch of government. This was a usurpation of the powers
properly delegated by the people of Colorado to the de
fendant Board of Education. It also violated congressional
policy as expressed in Title IV of the Civil Rights Act of
1964, 42 U.S.C. §2000c. This Court, in Swann, recognized
and commented on this matter as follows:
“The legislative history of Title IV indicates that
Congress was concerned that the Act might be
read as creating a right of action under the Four
— 124
teenth Amendment in the situation of so-called
‘de facto segregation,’ where racial imbalance
exists in the schools but with no showing that this
was brought about by discriminatory action of
state authorities.” (401 U.S. 1, at 17,18)
The Civil Rights Act of 1964 treats school desegregation
in detail and ultimately determines that de facto or volun
tary segregation shall not be treated by the courts. The Act
provides that nothing contained therein “shall empower any
official or court of the United States to issue any order seek
ing to achieve a racial balance in any school by requiring the
transportation of pupils or students from one school to an
other or one school district to another in order to achieve
such racial balance or otherwise enlarge the existing power
of the court to insure compliance with constitutional stan
dards. 42 U.S.C. §2Q00c-6(a) (2).
Since the district court admittedly was not remedying
de jure segregation in this portion of its order, it was in
violation of clear Congressional policy.
3. The Denver school district has constantly been search
ing for better means to improve educational results.
The Special Study Committee had informed the Denver
school board, in 1964, that it was a “real possibility” that
“concentrations of races and ethnic groups because of hous
ing patterns” “may result in educational inequalities.” (PX
20, A. 2003a) The board promptly acted upon the commit
tee’s report and adopted, effective May 6, 1964, Policy
5100, which recognized two important principles: (1) that
the neighborhood school principle should be adapted in
order to reduce concentrations of minority racial and ethnic
groups in the schools,58 and (2) that the educational pro
S8“The continuation of neighborhood schools has resulted in the con
centration of some minority racial and ethnic groups in some schools.
Reduction of such concentration and the establishment of more hetero
geneous or diverse groups in schools is desirable to achieve equality
— 125
gram should be tailored to the individual educational needs
of the children.59
To implement this policy, and in further responding to the
committee recommendations, the board also established
pupil assignment guidelines which aimed for maximum ra
cial and ethnic heterogeneity consistent with the neighbor
hood school policy (PX 102), and established the optional
pupil transfer plan recommended by the committee (How
ard L. Johnson, A. 299a) known as Limited Open Enroll
ment (LOE).
The 1964 LOE plan, was used mainly and increasingly
by Negroes (DX CG, A. 2126a) as a means to transfer to
other schools. It was later, in 1968, changed to make it
more effective in furthering racial and ethnic heterogeneity
in the schools. The improved plan, Voluntary Open Enroll
ment (VOE), provided for majority-to-minority transfers
with transportation provided. The VOE plan was given
wide publicity (PX 10, A. 2112a) and was explained in de
tail to parents (DX J, A. 2156a). By the fall of 1969. in its
second semester of operation, nearly 9% of Denver’s Negro
elementary pupils chose VOE as a means to transfer to a
school where they would be in a minority.60
The potential of a voluntary transfer plan such as Den
ver’s with its majority-to-minority limitation and with trans
portation provided should not be underestimated as an effec
of educational opportunity. This does not mean the abandonment of
the neighborhood school principle, but rather the incorporation of
changes or adaptations which result in a more diverse or heterogeneous
racial and ethnic school population, both for pupils and for school
employees.” (PX 1, A. 1989a, 1990a).
“ “Because individuals differ greatly in their backgrounds, their
capacities, and their motivations, equality of educational opportunity
must not be conceived as the same opportunity for each person; that
is, for example, as schools with the same curriculum, guidance, and
instruction.” (PX 1, A. 1989a).
60DX VA, A. 2160a, last page (51), and PX S-l, A. 2166a, showing
728 of Denver’s 8,250 Negro elementary pupils participating.
— 126 —
tive mechanism for reducing racial imbalance while giving
due recognition to individual choice and perception of edu
cational need. Denver’s plan should not be confused with
freedom of choice plans which have been used elsewhere as
a device to impede the disestablishment of dual systems.
In addition to the opportunity and encouragement af
forded to Negro and Spanish-surnamed pupils to transfer
to schools where they would no longer be in a majority, the
school district reaffirmed, in Resolution 1562 adopted May
6, 1970 (A. 1709a), its intention to try to find answers to
educational difficulties shown by achievement test results.
The text of the resolution is set forth as an appendix to the
opinion of the court of appeals. 445 F.2d 1010, A.P. 156a-
158a.
4. Even if the courts had the power to intervene in solving
the educational problems and the competence to pre
scribe effective educational measures, the remedy
urged by petitioners— racial and ethnic balancing—
would not meet the tests of either practical effective
ness or recognition of competing values.
Given the district court’s theory that racial or ethnic im
balance causes poor schools, the remedy of racial balancing
had at least a surface appearance of consistency. But the ex
perts at the hearing on remedy brought the proceedings
about on “a new tack.” After hearing Dr. Coleman explain
that the social class composition of the school, not its racial
makeup, was the operative factor, the district judge caught
sight of a new explanation for poor academic achievement:
“[Ijt’s not the schools at all, it’s the students and their eco
nomic and cultural deprivation that makes the educational
experience one that is non-competitive.” (A. 1546a)
Dr. Coleman’s testimony was consistent with the conclu
sion of the Coleman Report itself:
— 127 —
“[T]he apparent beneficial effect of a student
body with a high proportion of white students
comes not from racial composition per se, but
from the better educational background and
higher educational aspirations that are, on the av
erage found among white students.” (PX 500, p.
307)
Dr. Neal Sullivan, testifying mainly from his experience as
a school administrator01 felt that each city should develop its
own plan. A. 1589a. He described his experience in
Berkeley, California, where a racial balancing plan was
adopted as a matter of educational policy. But he felt that
in a large city like Boston (with 100,000 public school
pupils, comparable to Denver) the solution to school prob
lems would be the construction of large educational parks
with massive state financial aid. A. 1565a. He had no knowl
edge regarding the Denver school system and could offer no
prescription tailored for Denver.
Dr. Robert O’Reilly, who likewise knew nothing about
Denver, was called by plaintiffs mainly to give his opinion
that compensatory educational programs, as tried in various
places in the country, were not significantly effective in rais
ing the scholastic achievement of minority children. A.
1928a. He described such programs as merely increasing
the educational inputs, and stated that “[t]here is no indica
tion that these [programs] would necessarily work in an in
tegrated setting.” A. 1929a, 1930a. He was utterly unable
to suggest any educational program to help minority pupil
achievement beyond mere racial balancing. A. 1931a-
1934a. And the most he could say for racial balancing was
that “[I]t can help.” A. 1935a.
Both Dr. Sullivan and Dr. O’Reilly agreed with Dr. Cole
81“School administrators typically think what they’re doing is great.”
O’Reilly, A. 1956a.
— U s
man that they were talking about socio-economic balancing,
not necessarily racial balancing (A. 1599a, A. 1950a), al
though Dr. O’Reilly (who had never previously studied or
visited Denver, A. 1948a), felt, from talking with others,
that there was a correlation between race and social class in
Denver (A. 1947a), so that racial and socio-economic bal
ance would be the same thing.
In any case, the Coleman Report, as more recently stud
ied, does not support the conclusion that racial or socio-eco
nomic balancing would have significant educational
effects.62 Dr. Thomas F. Pettigrew63 and others, in one of
the papers from the Harvard Seminar on the Coleman
Report64 concludes that:
“Our findings on the school racial composition
issue, then, are mixed . . . the initial Equality of
Educational Opportunity survey overstressed the
impact of school social class.. . . When the issue
is probed at grade 6, a small independent effect
on schools’ racial composition appeared, but its
significance for educational policy seems slight.”
(pp. 351,351) (emphasis added)
With such doubt as to the educational efficacy of racial
or ethnic balancing, it seems fair to raise the question of
competing social values which are diminished by any man
datory plan of pupil assignment by racial or ethnic classifi
cation.
62See Coleman on the Coleman Report, pp. 118, 119, supra. A current
analysis of race and achievement describes several studies which cast
doubt upon the theory that racial balance will improve achievement of
minority students. D. Armor, The Evidence on Busing, The Public In
terest, No. 28, Summer 1972, p. 90.
63The principal author of Racial Isolation in the Public School, (PX
27).
sl“Race and the Outcomes of Schooling,” in On Equality of Education
al Opportunity, supra note 53.
129 —
Beyond the obvious values of a neighborhood pupil as
signment plan which includes administrative efficiency,
safety, and convenience, there is the matter of the associa-
tional values and desires of the pupils and their parents.
The district judge expressed doubt that the Hispano65
community in Denver would accept reassignment of their
children outside their neighborhoods. A. 1515a, 1516a.
This view is confirmed in an article by Mr. Alan Exelrod,
one of the attorneys for Amicus Curiae, Mexican-American
Legal Defense and Educational Fund, in which he reports
that “in large urban areas, such as . . . Denver . . . there is
little desire for integration. The leaders of these ‘barrios’
resist education policies which undermine community con
trol of schools and retard the enactment of bilingual/bi-
cultural education.”00
Another value is the one just suggested—preserving or
developing a measure of localized control of school affairs.
One certain consequence of the remedy as was decreed by
the district court is the ever-increasing centralization and
enlargement of school administrative units, with corre
sponding loss of community control and individual self-
determination.67
Finally, there is the matter of balancing the interests of
all concerned. The court of appeals for the 1st Circuit after
holding that the Constitution does not require racial balane- 03
03“Hispano” is used in Denver because most Spanish origin persons
there come from rural New Mexico and southern Colorado (PX 20,
A. 2002a) rather than from Mexico. Dr. Valdes (Pet. Br., p. 5, n. 1)
writes, “ ‘Chicano’ is the diminutive of ‘Mejicano’, and is, therefore,
quite restrictive, and can be used only when referring to Mexicans or
Mexican-Americans.” (La Luz, June, 1972, p. 61).
86Inequality in Education, Center for Law and Education, Harvard
University, August 3, 1971, p. 28.
87See, generally, A. Bickel, The Supreme Court and the Idea of Prog
ress, (1970), esp. pp. 134, 135.
130 —
ing in the absence of state-imposed segregation, observed
that:
“When the goal is to equalize educational oppor
tunity for all students, it would be no better to
consider the Negro’s special interests exclusively
than it would be to disregard them completely.”
Springfield School Committee v. Barksdale, 348
F.2d 261, at 264. (IstCir. 1965)
The problems of modern education are far too complex
to yield to simplistic solutions of mathematical racial or eth
nic balancing. As plaintiffs’ witness, Dr. O’Reilly, said:
“So, what I’m trying to communicate to you, I
guess, is that this is a very unsettled field. There
are no hard and fast rules to go on. It’s very un
likely that anybody is ever going to come up with
a treatment that is going to be generally effective
with minority students at all. What has to be done
is basically many, many years of experimentation
in which we slowly and carefully identify and de
velop specific programs designed for specific
groups, specific minority groups. Because they
differ so greatly.” (A. 1932a)
The Denver schools will continue to search for ways to im
prove education for all, while providing maximum choice of
school assignment for each pupil consistent with its estab
lished policy of maximum feasible racial and ethnic
heterogeneity.08 This process should not be disrupted by the
imposition of doubtful policies through judicial intervention
without basis in constitutional violation.
The remedy for racial imbalance as adopted by the Den
ver School Board in May, 1970, and submitted to the district
“ Resolution 1562, 445 F.2d 1010 A.P. 156a.
- 1 3 1 -
court at the hearing on remedies provided for voluntary
transfer (VOE) rather than mandatory, with transportation
furnished and space guaranteed. This was not a subterfuge
as in Green, rather it was a bona fide effort by the respon
dents to meet the suggestions of the district court made at
the close of the trial on the merits. It was a proposal by the
Board to give each pupil whose race was the majority in his
neighborhood school the right to go to any other school
where his race would be in the minority.
Even though the pupils in the core city schools were not
subjects of state-imposed segregation, such a plan gave each
Negro or Hispano student the right to transfer to a predomi
nantly Anglo school, thus meeting all constitutional criteria
guaranteed by the equal protection clause. With transporta
tion furnished and space guaranteed, every element of equal
protection was present in fact as well as in theory.09
In contrast to the petitioners’ experts who admittedly
knew nothing about the Denver school system and could
offer no plans tailored to the Denver problems, substantial
expert testimony was received from members of the ad
ministrative staff of the Denver public schools. These men
knew the city, the schools, the faculties, the available re
sources and allocation thereof and had worked closely with
the Board of Education and the two study committees.
It would be beyond the scope of judicial power and cer
tainly beyond anything that this Court has done heretofore
to accept the general non-specific opinions of the petition
ers’ experts and make them “the law of the land” under the
guise of enlarging the scope of Brown /. Decreeing racial
and ethnic balancing as a constitutionally-required remedy
f;ySee McLaurin v. Okla. State Regents, 339 U.S. 637 (1950): “There
is a vast difference — a Constitutional difference — between re
strictions imposed by the state which prohibit the intellectual com
mingling of students, and the refusal of individuals to commingle
where the state presents no such bar,
— 132 —
for equalizing educational outcomes in all the schools
throughout the Nation would be unsound not only as a
matter of educational fact, but also as a matter of con
stitutional law.
CONCLUSION
Respondents pray that this Court order as follows:
1. That the judgment of the court of appeals reversing
that part of the district court judgment pertaining to the
core-city or court-designated schools be affirmed.
2. That the Court grant the conditional cross-petition for
certiorari in Case No. 71-572; and that the judgment of the
court of appeals affirming the judgment of the district court
in all other respects be reversed.
Respectfully submitted,
WILLIAM K. RIS
1140 Denver Club Building
Denver, Colorado 80202
THOMAS E. CREIGHTON
BENJAMIN L. CRAIG
MICHAEL H. JACKSON
1415 Security Life Building
Denver, Colorado 80202
Attorneys for Respondents
if d sti ~