Keyes v. School District No. 1 Denver, CO. Brief for Defendants-Appellants
Public Court Documents
March 29, 1988
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Brief Collection, LDF Court Filings. Keyes v. School District No. 1 Denver, CO. Brief for Defendants-Appellants, 1988. 3f4837e7-b99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/57762236-e9ca-40f8-817f-547698738e9a/keyes-v-school-district-no-1-denver-co-brief-for-defendants-appellants. Accessed October 08, 2025.
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Nos. 85-2814, 87-2634 ?,/fJ
IN UNITED STATES COURT
OF APPEALS FOR THE TENTH CIRCUIT
WILFRED KEYES, et al.,
Plaintiffs-Appellees,
and
CONGRESS OF HISPANIC EDUCATORS, et al.,
Plaintiffs-Intervenors-Appellees,
v.
SCHOOL DISTRICT NO. 1, DENVER, COLORADO, et al.,
Defendants-Appellants.
Appeal from the United States
District Court for the
District of Colorado
BRIEF FOR DEFENDANTS-APPELLANTS
Phil C. Neal
NEAL, GERBER, EISENBERG & LURIE
208 South LaSalle Street
Suite 900
Chicago, Illinois 60604
Michael H. Jackson
SEMPLE & JACKSON
The Chancery Building
1120 Lincoln Street
Suite 1300
Denver, Colorado 80203
Nos. 85-2814, 87-2634
IN UNITED STATES COURT
OF APPEALS FOR THE TENTH CIRCUIT
WILFRED KEYES, et al. ,
Plaintiffs-Appellees,
and
CONGRESS OF HISPANIC EDUCATORS, et al.,
Plaintiffs-Intervenors-Appellees,
v.
SCHOOL DISTRICT NO. 1, DENVER, COLORADO, et al.,
Defendants-Appellants.
CERTIFICATION PURSUANT TO TENTH CIRCUIT RULE 28.2(a)
The undersigned certifies that the following parties or
attorneys are now or have been interested in this litigation or
any related proceedings. These representations are made to
enable judges of the Court to evaluate the possible.need for
disqualification or recusal.
PARTIES:
Plaintiffs:
WILFRED KEYES, individually and on behalf of CHRISTI KEYES,
a minor; CHRISTINE A. COLLEY, individually and on behalf of
KRIS M. COLLEY and MARK A. WILLIAMS, minors; IRMA J.
JENNINGS, individually and on behalf of RHONDA 0. JENNINGS,
a minor; ROBERTA R. WADE, individually and on behalf of
GREGORY L. WADE, a minor; EDWARD J. STARKS, JR.,
individually and on behalf of DENISE MICHELLE STARKS, a
minor; JOSEPHINE PEREZ, individually and on behalf of CARLOS
A. PEREZ, SHEILA R. PEREZ and TERRY J. PEREZ, minors; MAXINE N. BECKER, individually and on behalf of DINAH L. BECKER, a minor; and EUGENE R. WEINER, individually and on behalf of SARAH S. WEINER, a minor.
Plaintiff Intervenors:
MONTBELLO CITIZENS' COMMITTEE, INC., CONGRESS OF HISPANIC EDUCATORS, an unincorporated association; ARTURO ESCOBEDO and JOANNE ESCOBEDO, individually and on behalf of LINDA
ESCOBEDO and MARK ESCOBEDO, minors; EDDIE R. CORDOVA,
individually and on behalf of RENEE CORDOVA and BARBARA CORDOVA, minors; ROBERT PENA, individually and on behalf of
THERESA K. PENA and CRAIG R. PENA, minors; ROBERT L. HERNANDEZ and MARGARET M. HERNANDEZ, individually and on
behalf of RANDY R. HERNANDEZ, ROGER L. HERNANDEZ, RUSSELL C. HERNANDEZ, RACHELLE J. HERNANDEZ, minors; FRANK MADRID, individually and on behalf of JEANNE S. MADRID, a minor;
RONALD E. MONTOYA and NAOMI R. MONTOYA, individually and on
behalf of RONALD C. MONTOYA, a minor; JOHN E. DOMINGUEZ and ESTHER E. DOMINGUEZ, individually and on behalf of JOHN E.
DOMINGUEZ, MARK E. DOMINGUEZ and MICHAEL J. DOMINGUEZ,
minors; and JOHN H. FLORES and ANNA FLORES, individually and on behalf of THERESA FLORES, JONI A. FLORES and LUIS E.
FLORES, minors; MOORE SCHOOL COMMUNITY ASSOCIATION and MOORE
SCHOOL LAY ADVISORY COMMITTEE, CITIZENS ASSOCIATION FOR NEIGHBORHOOD SCHOOLS, an unincorporated association, and on behalf of all others similarly situated.
Additional Intervenors;
SUSAN TARRANT, WADE POTTER, DEBORAH POTTER, DANIEL J. PATCH,
MARILYN Y. PATCH, CHRIS ANDRES, RONALD GREIGO, DORA GREIGO and RANDY FRENCH.
Defendants;
SCHOOL DISTRICT NUMBER ONE, DENVER, COLORADO; THE BOARD OF
EDUCATION, SCHOOL DISTRICT NUMBER ONE, DENVER, COLORADO; WILLIAM C. BERGE, individually and as President, Board of
Education, School District Number One, Denver, Colorado;
STEPHEN J. KNIGHT, JR., individually and as Vice President,
Board of Education, School District Number One, Denver,
Colorado; JAMES C. PERRILL, FRANK K. SOUTHWORTH, JOHN H.
AMESSE, JAMES D. VOORHEES, JR., and RACHEL B. NOEL,
individually and as members, Board of Education, School
District Number One, Denver, Colorado; ROBERT D. GILBERTS,
individually and as Superintendent of Schools, School
District Number One, Denver, Colorado; and their successors,
EDWARD J. GARNER, as President, Board of Education, School
11
District Number One, Denver, Colorado; JUDY MORTON, as Vice President, Board of Education, School District Number One, Denver, Colorado; NAOMI L. BRADFORD, WILLIAM R. SCHUMACHER, PAUL SANDOVAL, DOROTHY GOTLIEB and CAROLE H. McCOTTER, as members, Board of Education, School District Number One, Denver, Colorado; and JAMES B. BAILEY, as Acting
Superintendent of Schools, School District Number One, Denver, Colorado.
Defendant Intervenors:
MR. AND MRS. DOUGLAS BARNETT, individually and on behalf of JADE BARNETT, a minor; MR. AND MRS. JACK PIERCE, individually and on behalf of REBECCA PIERCE and CYNTHIA PIERCE, minors; MRS. JANE WALDEN, individually and on behalf
of JAMES CRAIG WALDEN, a minor; MR. AND MRS. WILLIAM B. BRICE, individually and on behalf of KRISTIE BRICE, a minor; MR. AND MRS. CARL ANDERSON, individually and on behalf of
GREGORY ANDERSON, CINDY ANDERSON, JEFFERY ANDERSON and TAMMY ANDERSON, minors; MR. AND MRS. CHARLES SIMPSON,
individually and on behalf of DOUGLAS SIMPSON, a minor; MR.
AND MRS. PATRICK MCCARTHY, individually and on behalf of
CASSANDRA MCCARTHY, a minor; MR. RICHARD KLEIN, individually
and on behalf of JANET KLEIN, a minor; and MR. AND MRS.
FRANK RUPERT, individually and on behalf of MICHAEL RUPERT and SCOTT RUPERT, minors.
ATTORNEYS:
For the Plaintiffs;
Gordon G. Greiner Holland & Hart
555 17th Street, Suite 2900
Denver, CO 80201
James M. Nabrit, III
NAACP Legal Defense & Educational Fund, Inc.99 Hudson Street, 16th Floor
New York, NY 10013
For the Plaintiff Intervenors;
Norma V. Cantu
Mexican American Legal Defense & Educational Fund 314 East Commerce, Suite 200
San Antonio, TX 78205
- iii -
Ken Siegel
Ken Salazer
Sherman & Howard
633 17th Street, Suite 2900Denver, CO 80202
Roger L. Rice
Camilo Perez-Bustillo META Project
Larsen Hall, 5th Floor 14 Appian Way
Cambridge, MA 02138
Peter Roos
2111 Mission Street, Room 401 San Francisco, CA 94110
Joaquin G. Avila MALDEF
28 Geary Street, 3rd Floor San Francisco, CA 94110
Janica Martynow, C.S.R.P.O. Box 8775
Denver, CO 80201-8775
For the Defendants:
Phil C. Neal
Ralph T. Russell, Jr.Stephen Fedo
Neal Gerber Eisenberg & Lurie
208 South LaSalle Street, Suite 900Chicago, IL 60604
Michael H. Jackson
SEMPLE & JACKSON
The Chancery Building
1120 Lincoln Street, Suite 1300Denver, CO 80203
For Amici Curiae:
John P. Moore, Atty. Gen.
John E. Bush, Deputy Atty. Gen.
Jack E. Hanthorn, First Asst. Atty. Gen.
Charles M. Elliott, Asst. Atty. Gen.
for State Board of Education, State of Colorado
IV
Gerald A. Caplan Richard E. Bump
Caplan & Earnest Boulder, CO
for Colorado Association of School Executives
Reese Miller Jay W. Swearingen Denver, CO
for Colorado Association of School Boards
Phil C. Neal
NEAL GERBER EISENBERG & LURIE
208 South LaSalle Street, Suite 900 Chicago, IL 60604
(312) 269-8000
Michael H. JacksonSEMPLE & JACKSON
The Chancery Building
1120 Lincoln Street, Suite 1300Denver, CO 80203
(303) 595-0941
ftiil C. Neal
Attorney of Record for
Defendants School District
Number One, Denver, Colorado, et al.
By:
v
TABLE OF CONTENTS
Page
CERTIFICATION PURSUANT TO TENTH CIRCUIT RULE 28.2(a) . . . .i
TABLE OF CONTENTS......................................... vi
TABLE OF AUTHORITIES..................................... viii
STATEMENT AS TO JURISDICTION............................. 1
STATEMENT OF ISSUES....................................... 1
STATEMENT OF THE CASE..................................... 2
A. The Present Appeals............................. 2
B. The Desegregation of the Denver Public Schools. . .7
ARGUMENT..................................................15
I. THE SCHOOL DISTRICT WAS AND IS ENTITLEDAS A MATTER OF LAW TO A DETERMINATION THAT
IT IS UNITARY AS TO STUDENT ASSIGNMENTS..........15
A. Having Once Implemented a Fully Effective
Plan Producing a Racially Neutral
Attendance Pattern, the District Court
Had Fully Performed Its Remedial Function
with Respect to Student Assignments...........15
B. The Small Degree of Racial Imbalance Existing
in DPS Eight Years After Entry of the
Decree Did Not Justify the District
Court's Refusal To Find DPS Unitary As
To Student Assignments......................18
1. Such Racial Imbalances As Existed Were
Not Caused By Any Segregative Actions
of the Defendants........................18
2. The Level of Desegregation Achieved
and Maintained in the Denver Public
Schools Entitled the District to a
Finding of Unitariness..................21
vi
C. The District Court Gave No Other Sufficient Reason for Refusing To Terminate Its
Jurisdiction Over Student Assignments........2 5
1. The District Court Had No Basis for
Finding Any Reasonable Expectation That Constitutional Violations Would Recur. . .25
2. The Colorado Constitutional Provision Furnished No Justification for Continued Judicial Control OverStudent Assignments......................31
3. The District Court's Rulings Regarding
Faculty Assignments and Hardship
Transfers Provided No Basis For
Declining Termination of Judicial
Control Over the Student
Assignment Plan..........................33
II. THE DISTRICT COURT'S ORDER OF OCTOBER 6, 1987,IS IMPROPER INSOFAR AS IT IMPOSES NEW AND
INDEFINITE OBLIGATIONS ON THE DEFENDANTS........3 6
A. It Was Improper for the District Court
To Attempt To Maintain Control Over
Student Assignments Once It Determined
that the Finger Plan Need No LongerBe Followed.................................. 37
B. The Decree Does Not Comply With the
Requirements of Federal Rule 65(d).......... 39
CONCLUSION................................................ 49
REQUEST FOR ORAL ARGUMENT.................................. 4 9
ORDERS TO BE REVIEWED (Attachments)
Memorandum Opinion and Order, 609 F.Supp. 1491 (D. Colo. 1985).
Order for Further Proceedings, Oct. 29, 1985.
Memorandum Opinion and Order, 653 F.Supp. 1536
(D. Colo. 1987).
Memorandum Opinion and Order, Oct. 6, 1987.
CERTIFICATE OF SERVICE
V l l
TABLE OF AUTHORITIES
Cases Page(s)
Bradley v. Baliles. 639 F.Supp. 680 (E.D. Va.
1986), aff'd 829 F.2d 1308 (4th Cir. 1987)........ 24
Calhoun v. Cook. 522 F.2d 717 (5th Cir. 1975).......... 24
David v. Travisono. 495 F.2d 562 (1st Cir. 1974) . . . . 41
Dayton Board of Education v. Brinkman.433 U.S. 404 (1977).............................. 26, 48
Dowell v. Bd. of Educ. of Oklahoma Citv.
795 F. 2d 1516 (10th Cir. 1986).................... 21, 45, 48
International Longshoremen^ Ass'n v.
Philadelphia Marine Trade Association.389 U.S. 64 (1967)................................ 40, 41
Keves v. School District No. 1. Denver.
Colorado. 413 U.S. 189 (1973).................... 7, 26, 47
Keves v. School District No. 1. Denver.
Colorado. 521 F.2d 465 (10th Cir. 1975).......... 8, 9, 20
Keves v. School District No. 1, Denver.
Colorado. 653 F.Supp. 1536 (D. Colo. 1987)........ 6, 23, 35
Keves v. School District No. 1, Denver.
Colorado. 609 F.Supp. 1491 (D. Colo. 1985)........ passim
Keves v. School District No. 1, Denver.
Colorado. 540 F.Supp. 399 (D. Colo. 1982) ........ 3, 11
Keves v. School District No. 1, Denver.
Colorado. 474 F.Supp. 1265 (D. Colo. 1979)........ 11
Keves v. School District No. 1. Denver.
Colorado. 380 F.Supp. 673 (D. Colo. 1974) . . . . . 8, 10, 12, 20
Lee V. Nvcruist. 402 U.S. 935 (1971).................... 32
Mapp v. Bd. Educ. of Chattanooga. 648 F.Supp.
992 (E.D. Tenn. 1986)............................ 24, 25
Mapp v. Bd. Educ. of Chattanooga. 630 F.Supp.
876 (E.D. Tenn. 1986)............................ 24, 25
- viii -
Milliken v. Bradley. 433 U.S. 267 (1977)........... . 39, 44
Mishawaka v. American Electric Power Co.. Inc.
616 F. 2d 976 (7th Cir. 1980)...................... 41
Morgan v. Nucci. 831 F.2d 313 (1st Cir. 1987).......... 17, 23, 24, 38,
39, 43
Morgan v. Nucci. 620 F.Supp 214 (D. Mass. 1985)........ 38
North Carolina Bd. of Educ. v. Swann.
402 U.S. 43 (1971)................................ 32,33
Pasadena City Bd. of Education v. Spangler.
427 U.S. 424 (1976).............................. 15, 16, 18, 19,
20, 34, 36, 39,
40
Payne v. Travenol Laboratories. Inc.
565 F. 2d 895 (5th Cir. 1978)...................... 41
Price v. Denison Independent School District.
694 F. 2d 334 (5th Cir. 1982)...................... 43
Ross v. Independent School Dist.. 699 F.2d218 (5th Cir. 1983)............................ . 24
School District Number One, Denver. Colorado
v. Keves. No. 404-69 (August 5, 1969,
10th Cir.)......................................... 40
Spangler v. Pasadena City Bd. of Educ.. 611 F.2d
1239 (9th Cir. 1979).............................. 15, 28, 29,
30, 31, 38
Swann v. Charlotte Mecklenberg Bd. of Educ..
402 U.S. 1 (1971)................................18, 19, 39
Village of Arlington Heights v. Metropolitan
Housing Development Corp.. 429 U.S.
457 (1982)........................................ 26, 48
Washington v. Davis. 426 U.S. 229 (1976).............. 26, 47, 48
Washington v. Seattle School Dist. No. 1.
458 U.S. 457 (1982)............................. 32
IX
Statutes and Constitution
28 U.S.C. §§1331 and 1343..............................1
28 U.S.C. §§1292(a)(1) ................................ 1
Colo. Const. Art. IX, § 8 ..............................32
Miscellaneous
Welch and Light, New Evidence on School
Desegregation (U.S. Govt. Printing Office
1987)............................................ 14, 25
Rule 65(d), Fed. R. Civ. P............................. 3 9 , 40, 41
Prior or Related Appeals
Garcia v. Bd. of Educ.. School District No, 1. Denver.
Colorado. 573 F.2d 676 (10th Cir. 1978).
Keves v. School District No. 1. Denver. Colorado. 521 F. 2d 465(10th Cir.
Keves v. School
1975).
District No. 1. Denver. Colorado. 445 F.2d 990(10th Cir.
Keves v. School
1971) .
District No. 1. Denver. Colorado. Nos. 336-70and 337-70
Keves v. School
(10th Cir. Aug. 30, 1971).
District No. 1. Denver. Colorado. Nos. 336-70and 337-70
School District
(10th Cir. March 26, 1971).
No. 1. Denver. Colorado v. Keves. No. 432-69(10th Cir.
School District
Sept. 15, 1969).
No. 1. Denver. Colorado v. Keves. No. 432-69(10th Cir.
School District
Aug. 27, 1969).
No. 1. Denver, Colorado v. Keves. No. 404-69(10th Cir. Aug. 5, 1969).
x
STATEMENT AS TO JURISDICTION
The jurisdiction of the district court is based on 28
U.S.C. §§ 1331 and 1343. The jurisdiction of this Court is based
on 28 U.S.C. § 1292 (a) (1) .
Case No. 85-2814 is an appeal from the district court's
orders of June 3, 1985 and October 29, 1985. The notice of
appeal was filed on November 27, 1985. On December 30, 1985 the
plaintiffs-appellees filed their motion to dismiss the appeal for
lack of appellate jurisdiction. On May 7, 1986 this Court denied
the motion.
Case No. 87-2634 is an appeal from the district court's
order of October 6, 1987. The notice of appeal was filed on
November 4, 1987.
STATEMENT OF ISSUES
1. Whether a school district that fully implemented a
remedial plan that resulted in a racially neutral, desegregated
school-attendance pattern, and that has maintained full com
pliance with the court-ordered plan for more than ten years, is
entitled to be declared unitary at least with respect to that
aspect of a unitary school system.
2. Whether the district court, having determined that the
school district need no longer adhere to the previously ordered
school-attendance plan, was entitled to place the school district
under a continuing injunction apparently requiring the indefinite
maintenance of some indeterminate degree of racial balance,
regardless of any discriminatory intent on the part of the school
authorities.
3. Whether various provisions of the district court's
"interim" injunction were invalid for failure to satisfy the
specificity requirement of Rule 65(d) of the Federal Rules of
Civil Procedure.
STATEMENT OF THE CASE
A. The Present Appeals.
These are related appeals from orders of the district
court, entered in 1985 and 1987 respectively, in the Denver
school desegregation litigation, which has been pending in the
district court since 1969. The appeals involve issues concerning
the scope of a district court's powers to maintain continuing
remedial jurisdiction over a school district that has been in
substantially full compliance with a prescribed desegregation
remedy for a period of twelve years.
The appealed orders arise from a motion filed by defendants
Denver Public Schools and its Board ("DPS" or "the District") on
January 19, 1984. The motion requested the district court to
declare the District unitary and terminate the court's
jurisdiction or, in the alternative, to modify the existing
injunction by dissolving that part relating to student
assignments. Plaintiffs opposed the defendants' motion and
moved for wide-ranging additional relief including revision of
student attendance assignments for a number of schools.
2
The proceedings on these two motions, which have taken
nearly four years to complete, are summarized in the following
paragraphs.
1. An evidentiary hearing was held in April and May, 1984.
A year later, on June 3, 1985, the district court issued a
Memorandum Opinion and Order, 609 F.Supp. 1491 (attached hereto),
denying the District's motion. The court did not then rule on
plaintiffs' motion but instead encouraged the parties to resume
negotiations with a view to resolving the case by agreement. 609
F.Supp. at 1521-22. The parties complied but on October 4, 1985
advised the court that they had been unable to reach a settle
ment. The plaintiffs then renewed their motion for additional
relief and on October 29, 1985, the district court issued its
Order for Further Proceedings (attached hereto).
2. The district court's opinion of June 3, 1985 referred
to four factors as grounds for denying unitary status to the
District: (1) racial imbalance or racial identifiability as to
three named schools (Barrett, Harrington, and Mitchell) ,
(2) deficiencies in the District's execution of the teacher-
assignment provision of the original remedial decree, (3) in
adequate monitoring of student "hardship" transfers, and (4)
concerns about the School Board's intentions as to the future
operation of the District. 609 F.Supp. 1491.
3. The Order for Further Proceedings stated that the
"Board should now be required to submit plans for achieving
unitary status as that has been defined in this court's Memoran
dum Opinion and Order of May 12, 1982 (540 F.Supp. 399), and to
3
provide reasonable assurance that future Board policies and
practices will not cause resegregation." The Order directed the
defendants to "submit plans" addressing four specified matters:
(1) The identification of Barrett, Harrington and Mitchell
elementary schools as schools for minority children; (2) the
"hardship" transfer policy; (3) faculty assignments; and (4)
plans for implementation of Resolution No. 2233, the Board's
resolution setting forth its policies to preserve the integrated
character of the District for the future.1
4. The District appealed the orders of June 3 and
October 29 pursuant to 12 U.S.C. §1292(a)(l). Plaintiffs moved
to dismiss the appeal for want of appellate jurisdiction. This
Court denied the motion to dismiss by its Order of May 7, 1986.
At the same time, however, and periodically thereafter, this
Court postponed briefing on the merits of the appeal in the
expectation that a further order would be forthcoming from the
district court in the near future. As a result, defendants'
appeal from the order of June 3, 1985 and October 29, have in
effect been stayed for approximately two and a half years.
5. Notwithstanding their appeal from the Order for Further
Proceedings, the defendants complied with that order, while
expressly reserving their objections to the order. On December
2, 1985, defendants submitted their Response, setting forth (1)
plans adopted by the Board for improving the racial balance at
1 Resolution 2233 (DX C-6) appears in the Addendum to Brief
for Defendants-Appellants at 171. Hereinafter, references
to the Addendum will appear as "DPS Add. at __________."
4
the Barrett, Harrington and Mitchell schools through specified
program innovations (DX B(86) , DPS Add. at 193) ; (2) a new
policy, already adopted by the Board (Policy 1226D), setting
stricter standards and procedures for granting hardship
transfers (DX D(86), DPS Add. at 215); (3) new teacher-
assignment guidelines, already implemented by the District's
administration, setting a stricter standard for assignment of
minority teachers than that prescribed by the 1974 decree (DX
A (86), DPS Add. at 189); and (4) a staff report on the
implementation of Resolution 2233 (DX E(86), DPS Add. at 215).
Defendants also reiterated their contention that no "detailed
plan" for long-range implementation of the broad policies adopted
in Resolution 2233 was realistically feasible or should be
required. Defendants submitted that no further remedial orders
were required or appropriate.2
Plaintiffs submitted proposals for further relief. They
urged still further revision of defendants' policies regarding
transfers and teacher-assignment, and the creation of new
pairings or clusters of elementary schools to improve the racial
balance at Barrett, Harrington, and Mitchell schools.
The court ordered an evidentiary hearing on the Responses to
its Order for Further Proceedings. The hearing was held on March
13-15, 1986.
2 In view of the Board's voluntary adoption of the new
policies regarding teacher assignment and hardship trans
fers, defendants do not on this appeal challenge the
court's decision of June 3, 1985 insofar as it was based on
those matters. See infra. pp. 35-36.
/
/
5
6. A year later, on February 25, 1987 the district court
issued its Memorandum Opinion and Order. 653 F.Supp. 1536
(attached hereto). The opinion rejected the plaintiffs' requests
for further relief and entered no order modifying the existing
decree or requiring the District to alter its policies or take
any further action. It found that "[d]espite disagreement with
this court's conclusion that the District has not achieved
unitary status, the defendants have made a sincere and strenuous
effort to meet the requirements of the October 1985 Order." In
view of that effort, and "accepting the declarations of
Resolution 2233 as official District policy," the court
determined that "it is time to relax the degree of court control
over the Denver Public Schools." However, the court continued,
"After a reasonable time, the District will be required to return
to court to prove that it has performed its duty. If it fails,
[plaintiffs'] and other suggestions will be considered."
653 F.Supp. at 1540. The court then ordered (1) that the
defendants "may proceed with" implementation of their plans and
policies, (2) that the plaintiffs' requests for further relief be
denied, and (3) that the parties meet with the court to discuss
"immediate modifications of the existing orders, a time for the
District to prove the effectiveness of its programs, and a final
order of permanent injunction." 653 F.Supp. at 1542.
7. In compliance with the court's request, and without
conceding that any "interim decree" was appropriate, defendants
then submitted a suggested form of interim decree, as did the
plaintiffs. On October 6, 1987 the district court issued its
6
Memorandum Opinion and Order (attached hereto) substituting its
Interim Decree for the original decree and outstanding orders
modifying it. The new decree provides that DPS is no longer
required to maintain the student assignment plan that has been in
place since 1976. Instead, the District is enjoined to comply
with a series of broadly-phrased prohibitions and affirmative
duties. The "interim decree" is to remain in force "until the
entry of a final permanent injunction."
Defendants filed their notice of appeal from the October 6,
1987 order on November 4, 1987.
B. The Desegregation of the Denver Public Schools.
Following the decision of the Supreme Court in Keves v.
School District No. 1, Denver. Colo.. 413 U.S. 189 (1973), the
Denver public school system was desegregated pursuant to a
comprehensive plan ordered by the district court in 1974 and
modified in 1976 (sometimes referred to herein as "the Decree").
(The 1974 and 1976 orders appear at DPS Add. at 1 and 18.) The
following paragraphs outline the remedy prescribed and the
results achieved, as shown by the evidence presented by. the
District at the 1984 hearing on its motion to be declared
unitary.3
1. On April 17, 1974 the district court (Judge Doyle)
entered its "Final Judgment and Decree" (DPS Add. at 1) , ordering
a detailed plan for the reorganization of the Denver public
3 The background facts of the case may be found in the cited
Supreme Court opinion. Other antecedent opinions are
listed in the Table of Cases.
7
schools at all levels (elementary, junior high, and high
schools). (DPS Add. at 1; see 380 F.Supp. 673.) The
reorganization was based on a plan known as the Finger Plan. The
plan altered the attendance zones for every one of Denver's 120
schools in conformity with a grid system. It also created
"satellite" attendance areas for some schools, provided for part-
time pairing of many elementary schools, and consolidated two
high schools, East and Manual. In addition to those student-
assignment provisions, the decree dealt comprehensively with
facilities, faculty, transportation, extracurricular activities,
and other aspects of the District's operations. It also
prescribed a bilingual education program (the Cardenas plan).
2. The reorganization of schools went into effect in the
1974-75 school year, while appeals were taken by all parties. On
August 11, 1975 this Court affirmed the district court's plan
with the following exceptions: (1) Part-time pairing was
disapproved and the district court was directed to adopt a plan
of full-time desegregation for the schools involved.
(2) Reconsideration was ordered as to five predominantly Hispano
elementary schools that had not been desegregated. (3) The
bilingual program and the consolidation of East and Manual
schools aspect of the decree were set aside as being unrelated to
any constitutional violation found, and therefore as exceeding
the remedial powers of the federal court. 521 F.2d 465.
3. On remand the district court modified its 1974 decree
by (1) requiring full-time pairing in the previously part-time-
paired schools, and (2) desegregating the five predominantly
8
Hispano schools by pairing them with other schools. The modified
decree was entered on March 26, 1976 and was implemented for the
1976-77 school year. DPS Add. at 18.
4. Neither the district court nor this Court mandated that
the District must achieve any prescribed level of racial balance
in each school. Instead the Decree itself prescribed the
attendance area for each school. The Plan was designed, however,
to meet certain guidelines and almost all schools were projected
to meet the guidelines. This Court stated in reviewing the
decree:
At the outset, the court adopted as its
desegregation guideline a range of from 40%
to 70% Anglo enrollment for each elementary school, and a "somewhat higher" minimum Anglo
e n r o l l m e n t figure for secondary schools . . . . Projected junior high school enrollments range from 43.1% to 75.7%
Anglo. Projected high school enrollments
range from 42.5% to 80.1% Anglo.
521 F.2d at 475-76. The ranges indicated were approximately 15
percentage points on either side of the districtwide Anglo
percentages at the respective levels (elementary, junior high,
high). See DX A-26, DPS Add. at 142. Between 1973 and 1975,
however, the Anglo percentage in the elementary schools dropped
five percentage points, from 54% to 49%, and in his order on
remand Judge Doyle recognized that the 40% to 70% range was to be
adjusted to 34% to 64%. Order, March 26, 1976 at Ex. B, p.l, DPS
Add. at 25. In the ensuing 1976 school year the Anglo percentage
in the elementary schools had dropped another 3 percentage points
to 46%. The high school Anglo percentage had fallen from 65% in
9
1973 to 55% in 1976 and the junior high school Anglo percentage
had fallen from 56% to 47%. DX A-26, DPS Add. at 144-45.
5. The modified Decree fully desegregated the Denver
public schools in the very first year of implementation. In
1976-77 all but three of the 92 elementary schools had Anglo
enrollments not more than 15% below the districtwide Anglo
percentage; the three that fell below did so by 1.6, 3.1, and
3.5 percentage points respectively. All but five had Anglo
enrollments not more than 15% above the districtwide percentage;
the five that exceeded that range did so by 0.7, 0.7, 1.0, 1.0,
and 2.3 percentage points respectively. DX A-2* at 5-6, DPS Add.
at 51-52. Every one of the 18 junior high schools was within
+15% of the districtwide Anglo percentage at the junior high
level. Id. at 7, DPS Add. at 53. Eight of the 9 senior high
schools were virtually within +15% of the high school district
wide Anglo percentage. (Two deviated by 0.4 and 0.8 percentage
points respectively.) Id. at 8, DPS Add. at 54. Only West High
School, at 36% Anglo, was significantly below the range (by 8
percentage points) (id.), and the district court in 1974 had
projected that West would have an Anglo percentage below the
guidelines. See 380 F.Supp at 693, 722. In sum, not only was
there no school in the District that was either one-race or
racially identifiable as a minority or Anglo School, but out of
the 119 schools in the District only one school deviated by more
than a de minimis amount from being within 15% of the
districtwide percentage.
10
6. The Decree provided that "The defendants shall not
alter or deviate from the Finger Plan without the prior approval
and permission of the Court." Order of April 17, 1974 at 14, DPS
Add. at 5. The plan as implemented in the 1976-77 school year
has continued in effect in the Denver public schools for twelve
school years, including the present one, except as it has been
modified as to individual schools by orders of the district
court.
7. The principal adjustments occurred in 1979 and 1982.
In late 1978 the district court sua sponte ordered the Board to
submit a "detailed comprehensive plan for the assignment of
students to schools for the year 1979-80." See Order of
November 29, 1978 and 474 F.Supp. 1265, 1268 (D. Colo. 1979).
The Board complied by submitting proposals for closing four
elementary schools, reassignments related thereto, and a number
of other reassignments. After a hearing the district court
approved the closings but made its own detailed reassignments
affecting 15 to 20 elementary schools. 474 F.Supp. at 1272-76.
The district court continued to press the Board to come
forward with comprehensive long-range plans for the operation of
"a unitary school system." See. e.q.. Order of November 12, 1981
at pp. 4-5 (rejecting alternative proposals submitted by Board).
Ultimately the Board submitted and the court approved a plan
referred to as the "Consensus Plan." That plan further modified
the original Finger Plan by creating some additional neighborhood
schools, eliminating some pairings, and creating others. See
Memorandum Opinion and Order of May 12, 1982, 540 F.Supp. 399
11
(D. Colo. 1982) . There has been no subsequent order requiring
any change.
8. The total enrollment and the racial/ethnic composition
of the Denver public schools have changed materially over the
years that the Finger Plan has been in effect, as shown by the
following table:
Total enrollment Anglo enrollment % Anglo
1973-74 87,620 49,394 56% 1976-77 61,680 30,427 49%
1983-84 51,159 20,043 39%
(See 380 F.Supp. 673, 674; DX A-l*, DPS Add. at 43-46.)
9. In addition to the change in composition of the total
school population, there was extensive movement of population
within Denver. Between 1970 and 1980, 49% of Hispano and 45% of
Black households with school-age children moved at least once
within the city. DX C-ll, DPS Add. at 173. In 1970 the Black
population was highly concentrated in the inner-city area and
lived in neighborhoods that were 50% or more Black. DX C-18 at
46-49, DPS Add. at 178-81. By 1980 many Black families were
living in areas that had been predominantly or exclusively Anglo
in 1970. DX C-18 at 47-51, DPS Add. at 179-83. In 1970 many of
the neighborhoods in which Hispanos were living were between 5%
and 25% Hispano. By 1980 most of those neighborhoods were
between 25% and 50% Hispano. Ross, May 21, 1984 Tr. at 288-300.
10. These demographic changes produced significant changes
in the composition of the public-school population in most of the
attendance zones established by the Finger Plan, resulting in
continuing changes in the school-by-school racial/ethnic
12
percentages that resulted in 1976 from the Finger Plan. Tables
1-6, DX A-5, DPS Add. at 106-22.
11. Notwithstanding the extensive demographic changes, DPS
has remained a well-desegregated school system since the
implementation of the 1976 Decree. There have been no one-race
schools. There have not in any year been more than a small
number of schools failing to come within the guidelines used in
framing the Decree. Even within that number the extent of the
deviation has in most instances been small. Moreover, the set of
schools falling outside the range has not been constant; some
schools that have been marginally outside the range in some years
have come back within the range in later years. By 1981, the
sixth year of implementation of the Decree, only six elementary
schools varied by as much as 2 percentage points from +15% of the
districtwide average, and only three of those by more than 5
percentage points (5.6, 5.9, and 12.2 respectively). Of the
three, one had been within the guideline range for four out of
the six years and another for three.4
12. The high level of desegregation achieved and maintained
in the Denver public school system is also shown by "desegrega
tion indexes" commonly used in judging the effectiveness of
desegregation plans. The OCR index is used by the Office of
Civil Rights of the United States Department of Education in
monitoring school systems throughout the country. On that index,
perfect integration is represented by the number 1.0. According
4 The school-by-school data, showing for each year the extent
of deviation from +15% of the districtwide Anglo percentage,
are presented in the tables in DX A-4*, DPS Add. at 91-105.
13
to the OCR index, Denver moved from .69 in 1973 to .95 in 1976,
the year following full implementation of the Decree, and stood
at .94 in 1980. DX A-11, DPS Add. at 141. A recently published
survey prepared for the United States Civil Rights Commission
reports the desegregation results achieved in 125 school
districts in which judicially-ordered desegregation plans have
been implemented. The survey uses an index called the "dis
similarity" index. On that index, in contrast to the OCR Index,
complete segregation is represented by 1.0 and complete integra
tion by 0.0. The survey reports that Denver moved from 0.62 in
1967 to 0.24 in 1985. The 1985 index number is among the lowest
reported for major-city school systems in the United States. See
F. Welch and A. Light, New Evidence on School Desegregation 37-
38, 74-82 (U.S. Gov't Printing Office, 1987).
14
ARGUMENT
I. THE SCHOOL DISTRICT WAS AND IS ENTITLED AS A
MATTER OF LAW TO A DETERMINATION THAT IT IS UNITARY AS TO STUDENT ASSIGNMENTS.5
A. Having Once Implemented a Fully Effective Plan Producing a Racially Neutral Attendance Pattern, the District Court Had Fully Performed Its Remedial Function with Respect to Student Assignments.
The district court found that the District implemented the
pupil assignment plan of the 1976 Decree in the school year 1976-
77. It further found: "Accordingly, during that particular
school year, the Denver school system can be considered desegre
gated with respect to pupil assignments." 609 F.Supp. at 1508.
(Emphasis added). The district court did not find that there
after the District had made any alteration in the desegregated
student assignment system that had thus been achieved, other than
modifications made pursuant to court order. It did not find that
any changes in the racial balance in particular schools that
occurred after the school year 1976-77 were caused by any
racially discriminatory action on the part of the District.
On those facts, the Supreme Court's decision in Pasadena
City Bd. of Education v. Spangler. 427 U.S. 424, (1976),
5 The errors asserted in Part I of this brief were errors as
to the applicable legal principles and standards, and the
issues raised are therefore subject to de novo determination
by this court. Cf. Spangler v. Pasadena City Bd. of Educ. .
611 F.2d 1239, 1241 (9th Cir. 1979) (determination whether
school district was unitary not reviewable on "abuse of discretion" standard).
15
required the district court to declare the Denver school system
unitary as to student assignments. In that case the Court
declared:
In this case the District Court approved a plan designed to obtain racial neutrality in the attendance of students at Pasadena's public schools. No one disputes that the
initial implementation of this plan accomplished that objective. . . . [H]aving once
implemented a racially neutral attendance
pattern in order to remedy the perceived
constitutional violations on the part of the
defendants, the District Court had fully
performed its function of providing the appropriate remedy for previous racially discriminatory attendance patterns.
Therefore, the Court held, any further order requiring read
justment of school attendance zones was beyond the district
court's authority and the petitioners had thus "plainly
established that they were entitled to relief from the District
Court's injunction insofar as it required them to alter atten
dance zones in response to shifts in demographics within the
[school district]." 427 U.S. at 436-37, 440.
Despite that plain holding, the district court apparently
believed that it did not apply unless the Denver school district
were found to be unitary in every respect. See 609 F.Supp. at
1508, 1516-17. This was plain error. In the Spangler case the
Supreme Court expressly recognized that the Pasadena school
system might not yet have achieved unitary status in all
respects, but held that that fact did not permit the district
court to exercise further authority over pupil assignments. See
427 U.S. at 436 and 438 n.5.
16
The district court's error in this respect is underscored by
the recent decision of the First Circuit in Morgan v. Nucci.
831 F.2d 313 (1987). The issue in the case was whether the
Boston school system was unitary as to pupil assignments. The
threshold question was whether such a finding could be made
separate from a finding of unitariness in all other respects, and
the court held that that question was settled by the Spangler
decision:
Appellee State Board argues that until
every facet of the school system has become
unitary, the district court's remedial power is virtually unlimited - so broad in fact
that the district court may continue to issue
orders even in specific areas of school
operations where discrimination has ceased and the effects of past discrimination have
been eradicated. The Supreme Court's opinion
in Pasadena City Board of Education v.Spangler . . . forecloses this argument. In
Spangler, the Court found that unitary status
had been attained in student assignments,
even though not in other facets of the school system's operations.
831 F.2d at 318-19. (Emphasis added.)
The district court also appears to have considered that the
principle of the Spangler case was inapplicable because the
"racially neutral attendance pattern" effected by the 1976
decree had been modified by subsequent orders which were said to
be interim orders. See 609 F.Supp at 1507, 1517. In short, the
district court assumed that once it embarked upon a course of
modifying the implemented plan, it could continue indefinitely to
exercise such power merely by declaring each time that its orders
were merely provisional.
17
The principle of the Spangler decision cannot be nullified
by such a bootstrap theory of federal judicial power. If the
district court were correct, all that would be necessary to
overcome the "inherent limitation upon federal judicial author
ity" emphasized in Swann v. Charlotte Mecklenberq Bd. of Educ..
402 U.S. 1 (1971), Spangler, and other Supreme Court decisions
would be for a court itself to declare that it retains power to
modify its orders from time to time as it deems circumstances may
require. Such a result would be wholly inconsistent with the
idea that federal judicial supervision of local school authori
ties must come to an end when the constitutional violations have
been remedied.
B. The Small Degree of Racial Imbalance Existing in
DPS Eight Years After Entry of the Decree Did Not
Justify the District Court's Refusal To Find DPS Unitary As To Student Assignments. 1
1. Such Racial Imbalances As Existed Were Not Caused
By Any Segregative Actions of the Defendants.
The Supreme Court in both Swann and Spangler made clear that
once desegregation in student assignments is accomplished, there
is no duty to make subsequent adjustments in order to correct for
changes in the racial balances achieved, if those changes have
not resulted from segregative actions by the school authorities.
In Spangler the court said:
There was also no showing in this case
that those post-1971 changes in the racial
mix of some Pasadena schools which were
focused upon by the lower courts were in any
manner caused by segregative actions
chargeable to the defendants.
18
427 U.S. at 435. That was enough, the Court said, to bring the
case within the principle declared in Swann: "Neither school
authorities nor district courts are constitutionally required to
make year-by-year adjustments of the racial composition of
student bodies once the affirmative duty to desegregate has been
accomplished and racial discrimination through official action is
eliminated from the system." 402 U.S. at 31-32.
In this case, as in Spangler, "there was no showing that the
post-197[6] changes in the racial mix of some [Denver] schools
which were focused upon by the lower court were in any manner
caused by segregative actions chargeable to the defendants." The
district court did not find, as plaintiffs/intervenors had urged,
that the submission of the Consensus Plan in 1982 showed
segregative intent. The court could hardly have found
segregative intent in the action of a School Board in submitting
a proposed plan (in response to a court order) and then
implementing that plan with the court's approval.
In disregard of the Spangler decision, however, the district
court declared that the issue of segregative intent was ir
relevant because the court "continues to have jurisdiction in
this case, and no new intentional acts are required to justify
the exercise of that jurisdiction." 609 F.Supp. at 1507.
This was the identical error for which the Supreme Court
reversed the Court of Appeals in Spangler. The district court
concluded that it had continuing jurisdiction to require
adjustments in the school attendance pattern of Denver because a
small number of schools had fallen below racial balance guide-
19
lines. It pointed to the fact that three of the more than 80
elementary schools were below the +15% range in 1976, two of them
fell further by 1979, and two more had fallen outside in 1983.
609 F.Supp. at 1506-7. Those changes were even slighter than the
ones referred to in Spangler. where minority enrollment "at 5 out
of 32 of the regular Pasadena schools came to exceed 50% during
the 4-year period from 1970 to 1974." 427 U.S. at 435.
Moreover, in Spangler those schools were "out of compliance" with
the decree, which had required maintenance of a specified ratio.
The Denver schools referred to were not even out of compliance,
since the Decree did not require any specific ratio and the
percentage ranges were "guidelines only" and not inflexible
requirements. See 380 F.Supp. at 686-7, 692-3; 521 F.2d at 476-
77.
The district court erroneously assumed that it had
authority to order readjustment of attendance patterns in order
to redress racial imbalances resulting from demographic change.
After describing the extensive demographic changes in the
District, the court observed that "Maintenance of stable ethnic
distributions of students is more difficult in the elementary
schools" because "elementary school attendance zones are smaller
and more sensitive to local demographic changes." 609 F.Supp.
1507. (Emphasis added).6
6 Although the court also stated later that it was "not
persuaded that demographic change is the reason for the
development of racial imbalance in the schools," the context
indicates that the latter statement meant only that the
court was not persuaded that there had been a large
migration of Anglo families from Denver to the suburbs. See 609 F.Supp. at 1508.
20
The assumption that "maintenance of stable ethnic
distributions" is required was plainly erroneous. It was
contrary not only to the Supreme Court's decisions in Swann and
Spangler but to this Court's own opinion in Dowell v. Bd. of
Educ. of Oklahoma Citv. 795 F.2d 1516 (1986). In the latter case
this Court said:
We are not faced with an attempt to achieve
further desegregation based upon minor demographic changes not "chargeable" to the Board . . . .
Given the sensitive nature of school desegregation litigation and the peculiar
matrix in which such cases exist, we are
cognizant that minor shifts in demographics
or minor changes in other circumstances which
are not the result of an intentional and
racially motivated scheme to avoid the
consequences of a mandatory injunction cannot
be the basis of judicial action [citing Spangler and Swann].
795 F.2d at 1522. (Emphasis added.)
Whatever racial imbalances occurred in the Denver public
schools after implementation of the 1976 Decree fell squarely
within the foregoing principle enunciated in the Dowell opinion;
they were the result neither of any disobedience or neglect of
any court order nor of any racially motivated action. They could
not therefore be the basis for further judicial action aimed at
redressing racial imbalances.
2. The Level of Desegregation Achieved and Maintained
in the Denver Public Schools Entitled the District
to a Finding of Unitariness.
For reasons we have already set forth, the Supreme Court's
decision in the Spangler case is sufficient alone to require a
21
finding of unitariness as to student assignments on the facts of
this case. Since it was conceded by the district court that the
1976 Decree had fully desegregated the student attendance pattern
when it was implemented, and since no segregative action of the
District had occurred since then, whatever changes had occurred
in the racial balance in particular schools provided no basis for
the continued exercise of judicial authority over student
assignments.
However, even if the extent of racial balance existing in
1984 was relevant, the facts relied on by the district court for
denying defendant's motion could not support the court's
conclusion.
In denying the motion the court pointed to what it called
"resegregation" after the adoption of the Consensus Plan
modifications in 1982. The court found the "resegregation" in
the drop in Anglo percentages in three elementary schools,
Barrett, Harrington, and Mitchell. In 1983 those schools were,
respectively, 18%, 15%, and 12% Anglo. See 609 F.Supp. at 1507.
In its Order for Further Proceedings the court directed that
plans be submitted for remedying those three schools (and no
others), and added the statement that Barrett and Mitchell had
been racial ly-identif iable schools "throughout this entire
litigation." Order of October 29, 1985 at 2.
The district court was incorrect. All three of the
identified schools had come within the guideline range
immediately on implementation of the 1976 Decree, and all three
had remained within the range for a sustained period thereafter
22
- six consecutive years for Barrett and Harrington and five
consecutive years for Mitchell. DX A-4*, DPS Add. at 91-95. The
court acknowledged the error in its February 1987 opinion but did
not change its conclusion. See 653 F.Supp. at 1540 n.l.
Quite apart from the court's error as to the facts, the
existence of some number of racially identifiable schools many
years after a remedy has been fully implemented has not
heretofore been held to be sufficient reason for denying unitary
status as to pupil assignments. The case that is perhaps most
nearly in point is Morgan v. Nucci. supra. the First Circuit's
recent decision in the Boston school case. In that case the
court of appeals reversed the district court's refusal to find
the Boston system unitary as to student assignments. It did so
because it concluded that the school authorities had since 1975
been under an obligation to implement an assignment plan drawn by
the court, that they had "substantially complied with these
orders," and that "the once segregated Boston schools have
achieved a substantial degree of racial integration."
831 F.2d at 322-23. The court of appeals reached its conclusion
notwithstanding the facts (1) that there remained 3 out of 14.
high schools, 11 out of 26 middle schools, and 11 out of 78
elementary schools that were "unjustifiably out of compliance"
with the prescribed racial balances; (2) that there remained 13
one-race schools (defined by the court as schools with 80
percent or more of one race) out of 118 schools in the system,
of which 8 were black and 5 were white schools; and (3) that so
far as appears none of the 25 schools that were "unjustifiably
23
out of compliance" had ever been within the prescribed racial
balances and none of the 13 one-race schools had ever been
desegregated. See 831 F.2d at 320-21, 323-34.
In great contrast to Boston, the Denver schools were all
desegregated as early as 1976, there have been no schools "out of
compliance" with any court order, and the District has been
"substantially" desegregated - indeed highly desegregated - for
the entire period since initial implementation of the court-
ordered remedy. The district court's targeting of three
elementary schools as ground for denying unitary status suggests
a wholly different standard than that applied in Morgan v. Nucci
or, for that matter, in any other reported cases (save the lower
court decisions in the Spangler case itself). See. e.g.. Ross
v. Independent School Dist.. 699 F.2d 218 (5th Cir. 1983)
(Houston school system found unitary despite facts that 55
schools were more than 90% Black, 22 of them since 1960, two
schools were all-Anglo, and not all the remedial measures
approved in Swann had been employed); Calhoun v. Cook. 522 F.2d
717 (5th Cir. 1975) (Atlanta school district declared unitary
even though the district had never used noncontiguous busing
zones to achieve a greater degree of racial balance, and 92 of
148 schools were over 90% Black); Bradley v. Baliles. 639
F.Supp. 680 (E.D. Va. 1986), aff'd 829 F.2d 1308 (4th Cir. 1987)
(Richmond school district was unitary notwithstanding the fact
that 21 out of 43 schools remained over 90% Black); Mapp v. Bd.
Educ. of Chattanooga. 630 F.Supp. 876, 885, 887-88; 648 F.Supp.
992 (E.D. Tenn. 1986) (Chattanooga school system declared unitary
24
even though 39 of its 55 schools were found to be outside court-
ordered racial balance guidelines).
So far as defendants are aware, there is no reported case in
which a major school district that has been as thoroughly
desegregated as the Denver public schools has been refused a
determination that it is unitary. Indeed, comparison with the
foregoing cases and examination of other reported data suggests
that Denver has one of the most fully desegregated school systems
among major cities in the United States. See F. Welch and A.
Light, New Evidence on School Desegregation 74-82 (Table A2)
(U.S. Gov't Printing Office, 1987). If the level of
desegregation achieved long ago and maintained over many years in
Denver does not qualify the school district for unitary status,
it is difficult to know what standard it is required to meet,
other than making perpetual adjustments to maintain a prescribed
degree of racial balance. The Supreme Court has made it clear
that a school district is not to be subjected to such an ever-
moving set of goal posts.
C. The District Court Gave No Other Sufficient Reason
for Refusing To Terminate Its Jurisdiction Over
Student Assignments.
1. The District Court Had No Basis for Finding Anv
Reasonable Expectation That Constitutional
Violations Would Recur.
The district court advanced as a further ground for denying
defendants' motion the fact that the court was not satisfied that
constitutional violations would not recur in the future. In its
25
opinion of June 3, 1985 (609 F.Supp. at 1514, 1515) the court
said:
Accepting the defendants' argument that the modified 1974 Final Judgment and Decree was a complete and adequate remedy which the
District has fully implemented, jurisdiction should continue because the record does not
support a finding that there is adequate protection against resegregation.
* ★ *
[T]here is nothing before the court to give
any assurance that the Board of Education will not permit resegregation to occur as a
result of benign neglect. The District has done nothing to establish any means for
monitoring operations to assure the avoidance of racial disadvantage.
In its Order for Further Proceedings the court phrased its
holding on this point as follows:
This court also found that . . . the School
District had failed to take any meaningful
action to provide any reasonable expectation that constitutional violations will not recur
in the future after this case is
closed . . . . [T]he defendant Board should
now be required . . . to provide reasonable assurance that future Board policies and
practices will not cause resegregation.
Order of October 29, 1985, pp. 1-2.
There was no basis in the record for finding any reasonable
expectation that a constitutional violation would recur. The law
is clear that violation of the Fourteenth Amendment requires
intentional discrimination on account of race. Keves v. School
District No. 1, Denver. Col.. 413 U.S. 189, 198 (1973); Washing
ton v. Davis. 426 U.S. 229, 240 (1976); Village of Arlington
Heights v. Metropolitan Housing Development Corp.. 429 U.S. 252,
266 (1977); Davton Board of Education v. Brinkman. 433 U.S. 404,
26
413, 417 (1977). There was no evidence that the defendant School
District or any of its Board members or anyone else connected
with the school district had ever taken any action with discrimi
natory or segregative intent during the entire lengthy period
that the District had been operating under the desegregation
decree. The court made no finding that any such discriminatory
action had ever occurred. Nor was there any evidence or any
finding that the Board or the District had ever been recalcitrant
in carrying out any orders of the court or had not acted entirely
in good faith in implementing the remedial decree.
If it was permissible under these circumstances to find an
expectation of a recurrence of constitutional violations, the
same would be true of every school district ever placed under
judicial decree for prior segregative actions. So far as the
evidence or the findings go, the Denver school district had been
free of any action violative of the Fourteenth Amendment for at
least ten years at the time of the hearing on which the district
court based its decision (and for another four years at the time
of the court's most recent order) . If that fact alone was not
sufficient to negate the likelihood of any recurrence of a
constitutional violation, it is unclear how the Board could ever
provide the "assurances" the district court said were lacking.
Moreover, the district court had before it the Board's
Resolution 2233, adopted for the very purpose of committing the
Board to a set of policies for the future and informing the court
as to what those policies would be. DX C-6, DPS Add. at 171.
The resolution was adopted unanimously, and members of the Board
27
testified at the hearing as to their determination to follow it.
Bradford, 4/19/84 Tr. at 691-702; Blair, 4/19/84 Tr. at 806-13;
Sandoval, 4/20/84 Tr. at 901-03; Mullen, 4/25/84 Tr. at 1246-55.
The resolution pledged the Board to abide by the Constitution and
to maintain the unitary character of the Denver public schools.
In addition, it specifically declared the Board's intention to
maintain in force the existing student assignment plan upon
termination of court jurisdiction, except as changes might be
made over time that were consistent with maintaining the unitary
character of the district. The Board did candidly express its
intention to preserve existing integrated neighborhood schools
and to create new ones "whenever it appears that stable
integration can be maintained" in such areas, but only to the
extent that such measures would be consistent with maintaining a
unitary school district. The Board also expressed the intention
to foster stable integration through voluntary measures such as
additional magnet schools. DX C-6, 114, 5, 8, DPS Add. at 171-
72.
As the Ninth Circuit said of a similar (but less specific)
resolution in the Spangler case:
The Board's resolution is an official
act. It is entitled to be viewed by the
judiciary as a pledge made in good faith,
with and among its members, the patrons of
the school district, and the general public.
To anticipate in this court that the
resolution will be forgotten, or to attribute
its adoption to motives of expediency, is unwarranted.
If the Board, after the conclusion of
this litigation, should prove that we are
wrong, the courts remain open. Any future
28
act of de jure segregation will be dealt with according to law.
Spangler v. Pasadena City Bd. of Educ. . 611 F.2d 1239, 1241
(1979) .
Here, the district court professed to accept the "good
faith" of the Board in adopting Resolution 2233 but nevertheless
found the resolution wanting. It said, "The court does not doubt
the good faith of members of the Board of Education and their
intention to follow the law. The doubt is with respect to their
understanding of the law." 609 F.Supp. at 1520.
The court's doubts about the Board's "understanding of the
law" evidently derived from the Board's expressed interest in
moving the Denver public school system in the direction of an
increased number of neighborhood schools. The court said:
The total return to neighborhood schools
throughout the system under the residential
patterns which have existed and now exist
would inevitably result in the resegregation of some schools, particularly at the elementary level.
609 F.Supp. at 1519.
In so saying the court apparently overlooked the pertinent
language in the Board's resolution. The Board did not propose a
"total return to neighborhood schools under the residential
patterns which now exist." To the contrary, the resolution
clearly rejected the idea of any immediate or wholesale return to
neighborhood schools, and contemplated movement in that direction
only as changing neighborhood residential patterns might make
that feasible - and then only to the extent consistent with
maintaining a unitary school system.
29
More importantly, the court's statements reflect an
incorrect view of the law. The court evidently considered a
commitment to "neighborhood schools" as incompatible with the
District's continuing duty to obey the constitution. This was
clearly erroneous. Identical views formed the basis of the
district court's refusal to relinquish jurisdiction in the
Spangler case after remand from the Supreme Court. The Ninth
Circuit emphatically rejected the district court's rationale. In
language that closely fits the district court's decision in the
present case, Judge (now Justice) Kennedy stated:
The district court held also that
jurisdiction should be retained because of a likelihood that the Board would engage in new
acts of intentional discrimination.
* * *
The principal finding relied on by the
district court to support its conclusion was
that the Board, if released from the court's
jurisdiction, would return to some form of
neighborhood schools policy, which in turn
would increase racial imbalance in Pasadena schools. The court noted that various
members of the Board had expressed publicly a
desire to change the Pasadena Plan. Another
factor considered important by the court was
that at times since 1970 the Board had
tentatively explored in studies and surveys
alternative student assignment methods, some
of which apparently would increase racial
imbalance in relation to the Pasadena Plan. I
I assume, without deciding, that the
likelihood a school board will engage in new
acts of intentional discrimination may be
considered by a court as one factor in favor
of retaining jurisdiction . . . . The
district court's conclusion, nevertheless, is
clearly erroneous based on this record. A
policy favoring neighborhood schools is not
synonymous with an intent to violate the
constitution.
30
Spangler. supra. at 1244-45. (Emphasis added.)7
The fundamental legal error in the approach of the district
court, as in that of the district court in the Spangler case, was
its assumption that actions of a school board may constitute
constitutional violations, absent any purposeful discrimination,
if they tend to increase racial imbalance in schools. The error
is reflected in various statements by the court, but perhaps most
sharply its comment that the Board's Resolution 2233 "can be
considered a statement of intention to avoid acts taken with
discriminatory intent. It does not indicate that the Board, the
District and its officers and employees will take any action to
avoid any discriminatory impact of any policy or program."
609 F.Supp. at 1518. (Emphasis added.) The suggestion that
there is any such duty to avoid "discriminatory impact" has no
legal foundation. The Supreme Court has repeatedly made clear
that the test of a Fourteenth Amendment violation is intentional
discrimination, not disparate impact. See supra. p. 26, and
infra. pp. 45-56.
2. The Colorado Constitutional Provision Furnished No
Justification for Continued Judicial Control Over Student Assignments.
The district court offered as a further reason for
maintaining its control over student assignments the existence of
the "anti-busing" amendment to the Colorado Constitution, which
7 Judge Kennedy's "concurring" opinion was joined in by
another member of the three-judge panel and therefore is as
authoritative an expression of the Ninth Circuit as the
briefer opinion for the court.
31
provides: "[N]or shall any pupil be assigned or transported to
any public educational institution for the purpose of achieving
racial balance." Colo. Const. Art IX, §8.
The district court reasoned that in the absence of a federal
judicial order compelling student assignments the District would
be obliged to comply with Colorado law and therefore could not,
even if it wished to, maintain the existing assignment plan or
any non-segregative assignment plan. 609 F.Supp. at 1514-15;
Order of October 29, 1985, p.3.
If the district court's reasoning were sound, it would mean
that the Denver school district must be under federal court order
as to its student assignment plan for the indefinite future, a
result the district court's own opinions have repeatedly dis
claimed.
There is little substance to the court's concern. The
Supreme Court decisions have established that provisions
indistinguishable from that in the Colorado Constitution are
unconstitutional, and there have apparently been no efforts to
enforce Colorado's provision either against DPS or against any
other school district. The pertinent Supreme Court decisions
are: North Carolina Bd. of Educ. v. Swann. 402 U.S. 43 (1971),
Lee v. Nyquist. 402 U.S. 935 (1971), and Washington v. Seattle
School Dist. No. 1. 458 U.S. 457 (1982). In striking down the
North Carolina Anti-Busing Law, the Supreme Court stated:
[A]s a matter of educational policy
school authorities may well conclude that
some kind of racial balance in the schools is
desirable quite apart from any constitutional
requirements. However, if a state-imposed
limitation on a school authority's discretion
32
operates to inhibit or obstruct the operation of a unitary school system or impede the
disestablishing of a dual school system, it must fall; state policy must give way when it
operates to hinder vindication of constitutional guarantees.
North Carolina Bd. of Educ. v. Swann. 402 U.S. at 45. (Emphasis
added.)
In any event, to whatever extent the concern does have sub
stance, it could be readily met by a simple declaratory judgment
or injunctive provision relieving the District of any obligation
to comply with the Colorado anti-busing provision. That
provision cannot properly be made a pretext for perpetual
judicial control of the Denver Public Schools.
3. The District Court's Rulings Regarding FacultyAssianments and Hardship Transfers Provided NoBasis For Declinina Termination of JudicialControl Over the Student Assignment Plan.
In finding that DPS was not unitary, the district court
also relied on deficiencies it found with respect to faculty
assignments and hardship transfers of pupils. 609 F.Supp. at
1508-1514; see also Order of October 29, 1985, pp. 1-2. As to
those matters the court found (1) that the District had not
assigned minority faculty in accordance with the 1976 Decree as
now interpreted, for the first time, by the district court; and
(2) that there was "some evidence" that for certain schools "the
hardship transfer may have been used to avoid the desegregation
plan" and that the evidence "shows a lack of concern about the
possibility of misuse and a lack of monitoring of the effects" of
such transfers. Id. at 1514.
33
We need discuss these matters only briefly, because it is
clear that they were not sufficient to justify refusal to
terminate jurisdiction with respect to the student assignment
plan. The District was entitled to a separate determination of
unitariness as to student assignments. Spangler; Morgan v.
Nucci; see supra pp. 16-18. Moreover, any continuing issues as
to those matters have been removed by the Board's subsequent
actions.
As to the teacher-assignment issue, the district court
acknowledged "ambiguity" in the original Decree. See. Order of
October 29, 1985, p. 2. The District's method of calculating the
minority-teacher requirement had been followed consistently by
the District since the entry of the Decree in 1974 and had never
been questioned by any party. Any differences between the
results under the method used by defendants and the method
proposed by plaintiffs (and adopted by the court) were insubstan
tial. For example, by plaintiffs' proposed method, in 1983 there
was a total deficit of 22 minority assignments in the entire
school system (PX 719, DPS Add. at 187), whereas by defendants'
method there was a deficit of 14 (DX B-4, Tables 1 and 2, DPS
Add. at 149-56) . The 44 reassignments that would have been
required to achieve perfect compliance under plaintiffs' method
represented approximately 1.4% of the 3250 teachers in the
system (DX B-l, p. 2, DPS Add. at 147).
As to hardship transfers, the district court did not find
that the District was in violation of the provisions of the
Decree or ever had been. It limited itself to saying there was
34
evidence that should give the District concern and cause closer
monitoring. Like the teacher-assignment issue, the issue of
transfers had never previously been raised in the ten-year
period since the Decree was entered.
In response to the criticisms made during the 1984 hearing,
the District re-examined its policies and as a result was able to
report to the district court, in response to the Order For
Further Proceedings, that new policies had already been put in
place.
As to teacher assignments, the District voluntarily narrowed
the targeted variance of the proportion of minority teachers at
-any school to one-third of the district average rather than the
one-half prescribed by the 1974/76 Decree, and made that degree
of variance a maximum as well as a minimum. DX A(86) at p.2, DPS
Add. at 189. As to transfers, the District adopted more detailed
procedures and guidelines to insure that any transfers granted
are based on demonstrated hardship and only after taking into
account the projected effects on the racial balance of sending
and receiving schools. DX D(86), DPS Add. at 215. See 653
F.Supp. 1536, 1537-38. Evidence as to the adoption of those
policies was presented at the March 1986 hearing on the court's
Order for Further Proceedings. On the basis of that evidence the
district court declined to order any additional relief with
respect to transfers and teacher assignments. Memorandum Opinion
and Order of February 25, 1987, 653 F.Supp. 1536.
In view of these subsequent developments, defendants do not
now challenge the district court's ruling insofar as the court
35
found the District not completely unitary because of the
teacher-assignment and hardship-transfer issues. Instead
defendants suggest that the Court should direct the district
court on remand to ascertain whether the revised policies
discussed in the district court's opinion of February 25, 1987
have been implemented in good faith and, if so, to find the
District unitary in all respects. Cf. Spangler v. Pasadena City
Bd. of Educ.. 427 U.S. 424, 440-41.
II. THE DISTRICT COURT'S ORDER OF OCTOBER 6, 1987, IS
IMPROPER INSOFAR AS IT IMPOSES NEW AND INDEFINITE OBLIGATIONS ON THE DEFENDANTS.8
Having determined on February 25, 1987, more than three
years after defendants' motion for unitary status was filed, that
the plaintiffs' requests for additional relief should be denied,
the district court nevertheless proceeded to frame and enter what
it has termed an "interim decree." The court's objective in
doing so was to "relax court control" and to give the defendants
"greater freedom to respond to changing circumstances and
developing needs in the educational system." Memorandum Opinion
and Order, October 6, 1987, p. 2. Laudable as that objective was
from the standpoint of the school board, the order entered has
just the opposite tendency. While purportedly relieving the
District of any duty to maintain the Finger Plan of student
8 The issue raised in Point II, A is one of law, subject to
this court's independent review. The issues raised in
Point II, B relate to whether the district court abused its
discretion in formulating the injunction but also involve
questions of law as to the limits of the district court's authority.
36
assignments, the interim decree subjects the District to new and
indefinite obligations with respect to student assignments, and
as to other matters as well.
Since the defendants are subject to being held in contempt
for violating the decree, and since any violation found would
provide further grounds for asserting that judicial control over
the District must continue, the "freedom" accorded by the interim
decree is illusory. In point of fact the decree puts the
District at peril in a manner that confines its discretion and
that is inconsistent with the requirements of specificity in
injunctions. Moreover, to the extent that the decree purports to
require new remedies, never a part of the remedy the District has
been implementing since 1976, the new decree exceeds the proper
limits of the district court's remedial authority.
A. It Was Improper for the District Court To
Attempt To Maintain Control Over Student
Assignments Once It Determined that the Finger Plan Need No Longer Be Followed.
A threshold objection to the district court's interim decree
is that the very effort to maintain a "relaxed degree of control"
over student assignments was erroneous. Although the district
court had refused on June 3 and October 29, 1985, to find the
District "unitary" as to student assignments, its October 6,
1987 order decided that the remedial plan of student assignments
ordered by the initial decree need no longer be followed. That
was necessarily a determination that the remedy was complete, so
far as student assignments were concerned. Any possible doubt as
to the applicability of the Supreme Court's decision in the
37
Spangler case was eliminated by that determination. Accordingly,
the court should have simply vacated the provisions of the 1976
Decree ordering implementation of the Finger Plan. Spangler v.
Pasadena City Bd. of Educ.. 611 F.2d 1239 (9th Cir. 1976); Morgan
v. Nucci. 831 F.2d 313 (1st Cir. 1987).
The district court's effort to establish some "looser" but
continuing control over student assignments in this case closely
resembles the action of the district court in Boston that was
found improper by the First Circuit in Morgan v. Nucci. supra.
There the district court had entered a set of purportedly "final"
orders that imposed continuing obligations on the Boston school
district. As to its order concerning student assignments the
district court had explained that
the final orders seek to provide assignment
guidelines for future years which are as
flexible as consistency with a workable
student desegregation plan permits; and an
irreducible minimum of safeguards for insuring a future in which the Boston public
schools may flourish on a racially unitary,
racially unidentifiable, yet flexible and clear foundation of equal access and equal
educational opportunity for all students.
620 F.Supp. 214, 222 (D. Mass. 1985).
The Court of Appeals held the order improper. Finding the
Boston school district to be unitary as to student assignments on
the basis of the record before it, the Court of Appeals ordered
the district court's order vacated. Furthermore, it ordered that
unless new or different facts should appear on remand, the
injunction should be vacated permanently. 831 F.2d at 326. In
doing so, the court also addressed and rejected the idea, shared
by the district court in the present case, that a need for
38
"monitoring" could justify any continuing injunction. The court
said:
Similarly, we think it obvious that the need for further monitoring, Morgan v. Nucci.
620 F.Supp. 214, 218 (D. Mass. 1985), does
not prevent a finding of unitariness relative to assignments. The schools are either
unitary or not in respect to student assignments. Monitoring - even less than the
other pieces of unfinished business such as the securing of more minority teachers - does
not demonstrate the need for a continued injunction relative to student assignments.
831 F.2d at 326. (Emphasis added.)
The same propositions apply in this case. The district
court's new injunction is not made proper merely because it is
labeled "interim" rather than "final." The Denver school
district is "either unitary or not in respect to student
assignments." If there is no longer any need that it follow the
Finger Plan, the District has reached unitariness in that
respect. Once a remedy is complete the remedial function of the
federal court has been performed and it is required to return
full authority to the school board. See Swann, 402 U.S. at 16,
31-32; Spangler. 427 U.S. at 436; Milliken v. Bradley. 43 3 U.S.
267, 280-81 and nn. 14, 15 (1977). A court is not entitled to
keep a school board in the custody of a "half-way house," either
permanently or for some indeterminate "interim" period.
B. The Decree Does Not Comply With the
Requirements of Federal Rule 65(d).
Rule 65(d) of the Federal Rules of Civil Procedure provides
that "Every order granting an injunction . . . shall be specific
39
in its terms [and] shall describe in reasonable detail . . . the
act or acts sought to be restrained."
This Court has had occasion heretofore to invoke this
requirement of Rule 65, at an early stage of this very lawsuit.
See School District Number One. Denver. Colorado v. Keves. No.
404-69, Opinion of August 5, 1969, DPS Add. at 40. In the cited
appeal the Court vacated a preliminary injunction entered by the
district court that prohibited the Board of Education from taking
any action which "would rescind integration policies which
existed on June 9, 1969, and prior thereto . . . [or] would adopt
policies which would have the effect of restoring the segregation
which existed prior to the enactment of Resolutions 1520, 1524,
and 1531." The Court doubted that the order was sufficient to
satisfy the requirements of Rule 65(c) [now in Rule 65(d)]
because the term "policies" was undefined.
The Supreme Court in the Spangler case emphasized the
importance of compliance with the specificity requirement of Rule
65:
Violation of an injunctive decree such as
that issued by the District Court in this
case can result in punishment for contempt in
the form of either a fine or imprisonment....
Because of the rightly serious view courts
have traditionally taken of violations of
injunctive orders, and because of the
severity of punishment which may be imposed
for such violation, such orders must in
compliance with Rule 65 be specific and reasonably detailed.
427 U.S. at 438-39.
In International Longshoremen's Ass'n v. Philadelphia
Marine Trade Association. 389 U.S. 64 (1967), the Supreme Court
40
applied the Rule 65(d) requirement to invalidate an order
enforcing an arbitrator's award, where the order merely said that
the union must "comply with and abide by the said Award," and
where there were questions as to the meaning of the award. The
Court said, "The judicial contempt power is a potent one. When
it is founded upon a decree too vague to be understood, it can be
a deadly one." Id. at 76. The Court also pointed out that
Congress in enacting Section 19 of the Clayton Act, the
predecessor of Rule 65(d), had said that its purpose was to
assure that "defendants . . . never be left to guess at what they
are forbidden to do." Id. at 75. (Emphasis added.) See also
Pavne v. Travenol Laboratories. Inc.. 565 F.2d 895, 897-98 (5th
Cir. 1978); Mishawaka v. American Electric Power Co., Inc.. 616
F• 2d 976 (7th Cir. 1980); David v. Travisono. 495 F.2d 562 (1st
Cir. 1974).
The following provisions of the district court's interim
decree (Order of October 6, 1987, attached hereto) fall far short
of defining the required or prohibited actions with any
reasonable degree of specificity and require the defendants to
guess at what they are forbidden or required to do:
1. Paragraph 1 of the decree provides in part that:
They shall continue to take action
necessary to disestablish all school segregation, eliminate the effects of
the former dual system and prevent
resegregation.
Every part of this requirement is impossibly vague. The
school district contends and believes that segregation in the
Denver public schools has been "disestablished." The district
41
court has not pointed out in what respects it considers that
segregation has not been disestablished, other than the matters
that were addressed in its October 1985 order, and as to each of
those matters the court has declined to prescribe any specific
further remedy. What else does "disestablish" embrace?
Similarly, the district court has pointed to no "effects" of the
former dual system that remain to be eliminated. How are the
defendants to know what the "effects" are that they are commanded
to eliminate? Similarly, what is meant by "preventing resegrega
tion"? Does it mean, for example, maintaining the racial
balances attained under the Finger Plan, which the court has now
told the defendants they are free to depart from? Does it mean
maintaining any degree of racial balance? If it does not mean
either of these things, what does it mean? And finally, as to
all of these matters, what are the "action[s] necessary" to
achieve whatever are the objectives mandated by this provision?
The district court evidently drew the above language of the
interim decree from paragraph 1 of the 1974 Decree. However,
there is a crucial difference. The analogous provision in the
original decree stated:
As set out more particularly in the body of
the decree. they shall take affirmative
action to disestablish all school
desegregation and to eliminate the effects of
the dual school system.
DPS Add. at 2.
Thus the original decree recognized, as the new interim
decree does not, that the general language must be made specific.
That was the very purpose of the detailed requirements that
42
followed paragraph 1 of the original decree. Without such
specific requirements the equivalent general language of the new
decree renders the provision fatally defective.
2. Paragraph 2 of the interim decree provides in part:
The defendants are enjoined from operating schools or programs which are racially
identifiable as a result of their actions.
The term "racially identifiable" has no recognized
definition adequate for purposes of injunctive relief. The term
"racially identifiable" is commonly used in desegregation cases,
but its ordinary use is in appraising an existing situation - to
determine, for example, whether a remedy has been far-reaching
enough or whether a school district is unitary. Even in such
uses the term has no fixed meaning. See. e.g. . discussion in
Morgan v. Nucci. supra. 831 F.2d at 319-320; Price v. Denison
Independent School District. 694 F.2d 334, 353-64 (5th Cir.
1982) . But it is one thing to employ such an imprecise and
varying concept in characterizing a given result and quite
another to use it as a measure of duty in an injunctive command
enforceable by contempt.
The vagueness of the term "racially identifiable" is
increased by the circumstances in this case. There is no
definition of a "racially identifiable" school in the Decree that
has governed the defendants until now, but there has been a good
deal of usage - exemplified by the district court's own usage in
its June 3, 1985 opinion - that has equated "racially
identifiable" with the standard of +15% of the districtwide Anglo
percentage. See. e.g.. 609 F.Supp. at 1506-07. If the district
43
court intended the defendants to follow that standard it should
have said so. If it had a different standard in mind, it should
have specified what that different standard was. If it did not
have any specific standard in mind, it should not have left it to
the defendants to guess at one.
There is, of course, an obvious difficulty with making the
term "racially identifiable" specific enough to tell the
defendants how to obey. The difficulty is the fact that the
Supreme Court has repeatedly stated that the Constitution does
not require any specific degree of racial balance. "An order
contemplating the '"substantive constitutional right [to a]
particular degree of racial balance or mixing"' is . . . infirm
as a matter of law." Milliken v. Bradley. 433 U.S. 267, 280,
n.14 (1977) (Milliken II) . No doubt the district court was
concerned, and properly so, lest the interim decree transgress
that principle. But the answer cannot be to foist upon defen
dants the task of making up a standard, subject to the second-
guessing of a court in contempt proceedings. The answer can only
be that no general injunction to a school district to achieve or
maintain racial balance is possible consistent with the require
ment that an injunction be definite. This, indeed, is one of the
compelling reasons for concluding, as the First and Ninth
Circuits have done, that once a school district has become
unitary as to student assignments all injunctive orders concern
ing student assignments should be vacated.
The district court alluded to the question of indefiniteness
of the term "racially identifiable schools" but concluded that
44
any concern on that score was eliminated by the fact that its
injunction related only to "action" by the school district.
Order of October 6, 1987, p. 4. It must be said that the court's
reasoning on this point is a non sequitur. The fact that only
"action" producing effects is enjoined may meet the point that
school districts are not required to correct for demographic
changes, but it does nothing to meet the indefiniteness of the
term "racially identifiable" itself. The forbidden result is not
made definite by identifying the "cause" that must not bring it
about.
3. Paragraph 4 of the interim decree provides in part:
The duty imposed . . . by this interim decree
is the desegregation of schools and the
maintenance of that condition.
This provision is objectionable for the same reasons as
Paragraph 1 of the decree. The school district is already
desegregated in every respect of which defendants are aware. If
it is not, the decree should specify in what respects it is not
so that the defendants may know what they are ordered to do.
4. Paragraph 7 of the interim decree provides:
The defendants shall maintain programs and
policies designed to identify and remedy the
effects of past racial segregation.
This provision is not only entirely vague but it appears to
contemplate an obligation on the part of the District to
undertake some new and continuing set of remedies, never before
specified. If so, the requirement is wholly unwarranted, there
being no findings of any conditions requiring such a modification
of the prior decree. See Dowell v. Bd. of Educ. of Oklahoma
45
City. 795 F.2d at 1522. Even if the provision means only to
require the continuation of some existing "programs and poli
cies," it is impermissibly vague without identification of the
programs or policies referred to.
This provision of the interim decree had no counterpart in
the 1974/76 Decree unless it was Paragraph 10 of that decree.
(DPS Add. at 7.) That paragraph provided:
The defendants shall to the extent feasible maintain its present programs of collateral
services such as the hot breakfast program, free lunch, tutorial programs, health services, remedial and compensatory education
programs. Defendants shall report to the
Court as to the impact, if any, of the implementation of this Decree upon the
financing for, or availability of, any such programs.
That provision was evidently intended to insure that the District
would not use the transportation costs of the desegregation
decree as a reason for cutting back on existing programs
beneficial to minority students. Paragraph 7 of the interim
decree has no such apparent purpose or limitation, and it
identifies no particular programs, let alone "policies."
* * *
Independent of the terms of the injunction itself, the
district court's order has the further infirmity that it fails to
prescribe any limits on the duration of the "interim" decree, or
to specify what remains to be done by the District to achieve
unitary status. To the extent that the court's opinion contains
any intimations on these matters, it suggests that the court
accepts erroneous conceptions of law that will delay indefinitely
the restoration of DPS to a status of full autonomy.
46
An especially troubling aspect of the opinion is its
reference to "institutional intent" as the measure of the
District's constitutional obligation (apparently both before and
subsequent to achieving unitary status). October 6, 1987
Memorandum Opinion and Order, p. 5. That phrase, coupled with
the court's observation that "what the District does will control
over what the Board says," suggests that the court does not
accept the distinction between discriminatory intent and
disparate impact that the Supreme Court's decisions have
emphasized.
In the Keyes case itself, the Supreme Court stated that
establishing a violation of the Equal Protection Clause requires
proof "not only that segregated schooling exists but also that it
was brought about or maintained by intentional state action,"
(413 U.S. 189, 198) and went on to stress the "intentional"
aspect of the principle, stating: "We emphasize that the
differentiating factor between de jure segregation and so-called
de facto segregation . . . is purpose or intent to segregate."
Id. at 208 (emphasis in original; footnote omitted). In
Washington v. Davis. 426 U.S. 229 (1976), the Court reiterated
this critical distinction in the course of reaffirming that the
Equal Protection Clause condemns only state action taken with the
subjective intention of discriminating on the basis of race, and
not state action that merely impacts differently on persons of
different races. Surveying its prior decisions, the Court held
that the Equal Protection Clause proscribes only action tainted
47
with a "racially discriminatory purpose" (Id. at 239), and the
Court repeated that
The essential element of de jure segregation is "a current condition of segregation resulting from intentional state action . . . the differentiating factor between de jure segregation and so-called de facto segregation . . . is purpose or intent to segregate.
Id. at 240. (Emphasis in original.) See also Village of
Arlington Heights v. Metropolitan Housing Development Coro.. 429
U.S. 252, 266 (1977); Davton Bd. of Educ. v. Brinkman,
433 U.S. 404, 414 (1977); and this Court's opinion in Dowell v.
Bd. of Educ. of Oklahoma City. 795 F.2d at 1522.
Once a judicially-prescribed desegregation remedy for prior
constitutional violations has been fully implemented and
maintained for as long as it has been in Denver, the school
district's performance of its constitutional duties must be
measured by the law established in the foregoing cases. In the
present case the district court apparently intends to subject the
District and its Board for an indeterminate "interim" period, and
perhaps permanently, to a different measure of conformity with
the Equal Protection Clause.
Accordingly, this Court on remand should clearly specify
what conditions, if any, the district court is entitled to impose
prior to a full declaration of unitariness, and should further
make clear that upon meeting those conditions the District and
its Board are entitled to be restored to full autonomy, subject
only to the constitutional duty not to engage in purposeful
racial discrimination or segregation.
48
Although the district court recognized in its 1985 opinion
the pertinence of the question "If not now, and on this showing,
when, and on what showing?" (609 F.Supp. at 1519), it has failed
in the almost three years since then to provide any clear answer.
This Court should now do so.
CONCLUSION
For the reasons set forth above, each of the orders appealed
from should be reversed, with directions to the district court to
1. Declare the Denver Public Schools unitary as to student
assignments;
2. Vacate the interim decree;
3. Promptly determine whether the District's policies with
respect to teacher assignment and hardship transfers referred to
in the district court's opinion of February 25, 1987 have been
implemented in good faith and, if so, declare the Denver Public
Schools unitary in all respects; and
4. Thereupon dissolve all outstanding orders, other than
those relating to the Language Rights Consent Decree of August
17, 1984, and terminate the court's jurisdiction over this case
except for purposes of enforcing the Language Rights Consent
Decree.
REQUEST FOR ORAL ARGUMENT
Pursuant to Tenth Circuit Rule 28.2(i), defendants request
that oral argument be entertained in this case. Defendants
respectfully submit that oral argument is appropriate because of
49
the exceptional public importance of this case and the
substantial questions raised concerning determination of unitary
status in this Circuit.
Respectfully submitted,
Phil C. Neal
NEAL, GERBER, EISENBERG & LURIE 208 South LaSalle Street, Suite 900 Chicago, Illinois 60604 312/269-8000
Michael H. JacksonSEMPLE & JACKSON
The Chancery Building
1120 Lincoln Street, Suite 1300Denver, Colorado 80203303/595-0941
Attorneys for Defendants-Appellants
50
SCHOOL DISTRICT NO. L DKNVUL
COLORADO. at aL. IW W u ti.
O . A.No. C-14M.
Uaitad 3<ata District Court,
D. Colorado.
Jbm S. IMS.
Drarar cehod board award for aa or-
d v declaring that school district v ia a
u ita i7 system mad taraiactiog joriadietioa
of court ia dsasgrsgitioo com. Tbs Dfe»
Met Court, Mataeh, J , bald that
••u ld bo denied, w o though ijsisin could
be ecocide rad desegregated with respect to
popfl assignments duriag jm ti>uU>
Tear, considering that it wac aot dseegrw-
1492 «0» FEDERAL SUPPLEMENT
C*t«d with respect to faculty assignments,
there waa do adequate protection
reaegregation, particularly given
th»t ^segregation would be inevitable if
•ehool board followed state law prohibiting
"forced busing."
Motion denied.
1. C onstitutional Law ^ 2 2 0 (2 )
The Constitution prohibits any govern
mental use of race, color or ethnicity to
impose an impediment to the seeking of
benefits o f public educational services.
L Schools ^ 1S(«), 122.1, 1STA
An adequate desegregation plan must
mehide more than assignm ent o f pupils to
avoid racial identification of schools; it
must also address policies and practices
with respect to faculty, staff, transporta
tion extracurricular activities and
additionally, an adequate remedy must a*
sure against any future use of school con
struction and abandonment to serve, per
petuate, or to reestahliah a dual system .
S. Schools ^ 1 2 (0
Adequacy o f any desegregation plan »
measured not by its intentions bat by its
effectiveness.
4. Schools ^ 1 * 2 2 )
D istrict court m ust retain jnrwdictlon
in a desegregation suit until it ■ convinced
there is no reasonable expectation that con
stitutional violations w B near.
5. Schools
can be no pennanent
requiring a school district to n fa ta in any
by racial tmtioa in the echooh.** ****
«• Schools • * ! « » ) , 122J
Mottan- to d e d u e Denver eriy^q Aim.
triet a unitary school ij slain to term inate
4—ep ogation jurisdiction, and to vacate or
modify final deereo or injunction would bo
deaiod, even though school system could bo
“ “•^dered desegregated with respect to
pupil assignm ents for particular school
year, considering that thare waa a su ffi
cient residue o f segregation in faculty as
signment* to deny s finding that district
was desegregated in that respect, that evi
dence ahowed a lack of concern about pos-
aibOity of misuse hardship transfer policy,
and that there was no adequate protection
egainat resegregation, particularly consid
ering that reaegregation would be inevita
ble if school board followed state law forbid
ding "forced busing.”
Gordon G. Greiner, Holland A Hart, Den
ver, Colo., James M. Nsbrit, HI, New York
City, for plaintiffs.
Norma V. Cantu, Morris J. Bailer, Mexi
can American Legal Defsnae and Edu
cational Fund, San Frandaco, C*L, Kenneth
Siegel, Kenneth Salazar, Sherman A How
ard, Denver, Colo, for phuntiff-intervenora.
Michael H. Jackson, Semple A Jackson,
Denver, Colo., PhD C. N eel. Friedman A
Koven, Chicago, HL, for defendants.
Wm. Bradford Reynolds, A sst A tty.
Gen., Charles J. Cooper, Deputy A sst Atty.
Gen., Hugh Joeeph Beard, Jr. and Michael
Carrin, A ttyi., Civil Rights D iv , U.S. D ept
o f Justice, W ashington, D .C , Robert N.
U.S. A U /, Denver, Colo., amicus
curiae.
MEMORANDUM OPINION
AND ORDER
MATSCH, D istrict Judge.
The Board o f Education o f School Die-
'h ct No. 1 seeks to end this esse by wto^ing
for s determination that the Dwtriet has
provided an equal educational opportunity
for aO students and has remediad iD past
fe ilu n s to comply with the requirements of
the United States Constitution. More par-
tieulariy, the matter new before this court
is a motion, filed January I t , 1964, tar
entry o f the following orders:
1. An order declaring that the D e
fendant School Dfctriet k a snfcary
school system in the following respects:
a) Faculty, b) Staff, e) Transportation, 4)
Extracurricular Activities, •) FadUtiaa,
and f) Composition of Student Body.
1493KEYES v. SCHOOL DIST. NO. 1. DENVER, COLO.
CM* a> M * F-V qrp. 14*1 fD C C o**. IW )
2. An order modifying and dissolving
the injunction as it relates to the assign
ment of students to schools.
S. An order declaring that the reme
dy previously ordered in this case to cor
rect the Constitutional violation as found
has been implemented, and that there is
no need for continuing court jurisdiction
in the matter.
The purpose of the motion is set forth in
the following paragraphs from i t
Throughout the proceedings herein,
the Court has urged upon the parties the
need to develop and define a process and
procedure whereby the Court and the
parties might have the opportunity to
present evidence to the Court on the
unitary nature of the district and the
extent of the School District’s compliance
with the remedial orders of the Court,
and for the need, if any, for continuing
court jurisdiction over the affairs of
School District No. 1.
The earliest definitions of a unitary
school system enunciated six criteria to
be considered by a court in its determina
tion of whether a school system was dual
or unitary. They included: Faculty,
Staff, Transportation, Extracurricular
Activities, Facilities, and Composition of
Student Body. Green v. County School
Board, 391 U.S. 490, 495 [88 S.C t 1689,
1692, 20 LE<L2d 716] (1968) An analysis
has been conducted by sta ff utilising the
criteria as set forth above, and the work
ing definition of the unitary school sys
tem, as announced by this Court in its
Memorandum and Opinion dated May 12,
1982. The School D istrict is prepared to
show to the Court its compliance with the
criteria and with the Court's definition at
an evidentiary hearing for that purpose.
Although the parties to the litigation
have been before the Court on numerous
with respect to proposed
changes in the orders as they relate to
m atters o f pupil assignm ent, none of
these hearings were designed to permit
the parties to explore the extent to which
the School D istrict has fulfilled its reme
dial obligations; and, as a result, neither
the parties nor the Court have had a full
opportunity to examine the data and the
evidence that bears upon the question of
whether the School District has in fact
fully implemented the court ordered rem
edy and that the remedy has accom
plished its purpose.
The requested full evidentiary hearing
was held in May, 1984, and the plaintiffs,
defendants and intervenors have filed com
prehensive briefs. The United States De
partment of Justice has also filed both pre
trial and poet-trial memoranda as amicus
curiae. The court is fully informed on the
issues and arguments relevant to the mo
tion.
GENERAL PRINCIPLES
The parties approach the issues and evi
dence in this case from different perspec
tives reflecting differing interpretations of
the scope of the equal protection danse.
Perhaps, as with visual perspectives, the
difference is influenced by the relative posi
tions of the parties. The Board of Edu
cation looks at the case from the high
ground occupied by those bolding the pow
er of governance. In that position there
may be a tendency to accept a more static
overview of s somewhat distant scene char
acterised by stability sad serenity. The
plain tiffs/intervenors represent people
whose historical disadvantages give them
an alternate viewpoint For those who arc
still deep in the valley, struggling for sur
vival, and for those moving upward on the
mountain, educational opportunity is the
path to progress. They are on the move,
seeing only transient scenery, and their
primary concern is the direction o f their
m ovem ent Is the trail going forward and
upward, or downward and backward?
The difference between the parties may
also be illustrated with a different analogy.
The defendants ask that are look at the
Denver school system by making detailed
comparisons o f enlarged aerial photo
graphs taken in 1976 and 1964. The plain-
tiffs/intervenors ask us to view a movie
film record of events from 1968 to 1984,
with close-ups of a few o f the frames at
1494 •09 FEDERAL SUPPLEMENT
intervals. H it choice turns on
conflicting interpretations of constitutional
law based on alternative approaches in ana
lyzing Supreme Court opinions.
That process of interpretation of consti
tutional law will also be affected by meth
odology in establishing viewpoint Does
one plumb the depths of the relevant opin
ions as a series of pools, or is it more
appropriate to look at the Court’s language
aa the flow of a meandering stream with
eddies, backwaters and even changes of
direction? The latter view is more consist
ent with the guiding role of the C ourt1
School desegregation eases differ from
most litigation in that much of the evidence
is developed while the case is in court In
most lawsuits, the court’s focus is retro
spective. Tire issues arise from hwtorical
events and the evidentiary disputes are re
solved by the court's findings o f the proba
bilities about matters which occurred in the
p a st In school desegregation cases, there
are political and demographic changes
which occur while the case is in court and
even the court's processes and decree*—at
least the public perception of them—can be
factors influencing some of those changes.
It is also important to remember that the
applicable principles o f com titu lions! law
have evolved under circum stances of
change in the characteristics o f our nation
al community and in the course o f develop
ing new information and undentandm g
about soekdogy and psychology.
Only 128 years ago, the Supreme Court
asked:
The question is simply this: Can a
DeST0’ whose ancestors were imported
into this count iy , and sold s s sieves, be-
I. Sm h » w «. h e rf of fidbnefieo, 349 U i
2*4. 73 L O . 731. 99 Lfid. 10U (1933) ( * o m
Oft
, "plahiws of [A ew i 1 declaring the fun-
principle that racial <tiarrimieari^
la pnhtfc edneanoe is uaconodtutioaal. sm
Inrarpotsiad hereto by reference.
M l impiemcmados of those cpMtjtetloanl
Prtadplos may require aohakm of varied lo-
cal school problems. School authoritios have
the primary rapooabiliry for ehiddatiog, m-
••■riag. and solving these prnhlum. courts
come s member of the political communi
ty formed and brought into existence by
the Constitution of the United States,
and as such become entitled to all the
righta, and privileges, and immunities,
guarantied by that instrument to the citî
ten? One of which rights is the privilege
of suing in a court of the United States
in the cases specified in the Constitution.
Drtd Scott v. Sandford, 60 U.S. (19 How)
393, 403, 15 LEd. 691 (1856).
The Court sought justification for its
negative answer by finding that the found
ing fathers did not intend to recognize
slaves or their descendants as citizens.
Chief Justice Taney made the following
observation about the status of Negroes at
the time of adoption of the Declaration of
Independence and the Constitution:
They had for more than a century be
fore been regarded as beings of an inferi
or order, and altogether unfit to associ
ate with the white race, either in soda! or
political relations; and ao far inferior,
t*1** they had no rights which the white
man was bound to respect; and that the
negro might justly and lawfully be re
duced to slavery for his benefit He was
bought and sold, and treated aa an ordi-
“" 7 article o f merchandise and traffic,
whenever a profit could be rnnAm ^
This opinion was at that time fixed and
univeraal in the civilised portion of the
white race. It was regarded as an axiom
m morals as w»0 as m polities, which no
one thought o f disputing, or supposed to
be open to dispute; and men in every
grade and position in society daily and
habitually acted upon it in their private
pursuits, as well as m m atters o f pubbe
w in n ev e io " M B U K aCDOQ O t
good faith tm-school author! tiaa
i of the
s s e of tbdr prondsaity to lo
cal coodJtioae and the poaribie aaed far fur-
thar hearings. the courts which originally
hoard these caaaa can beat perform thia judi
cial apprariaL
/d. m 29*. 73 SXl at 733 (footac
Sat oho Schauar. Aeftau* the
.ftmcriaw of (he Sipi’u iu Court, 17 U iifa-fci t~
Ref, 1-24 (19S4).
1495KEYES v. SCHOOL DIST.
O u m tO* F-Supp. 14
concern, without doubting for a moment
the correctness of this opinion.
And in no nation was this opinion more
firmly fixed or more uniformly acted
upon than by the English Government
and English people. They not only
seised them on the coast of Africa, and
sold them or held them in slavery for
their own use; but they took them as
ordinary articles of merchandise to every
country where they could make a profit
on them, and were far more extensively
engaged in this commerce than any other
nation in the world.
The opinion thus entertained and acted
upon in England was naturally impressed
upon the colonies they founded on this
side of the Atlantic. And, accordingly, a
negro of the African race was regarded
by them as an article o f property, and
held, and bought and sold as such, in
every one of the thirteen colonies which
united in the Declaration of Independ
ence, and afterwards formed the Consti
tution of the United States.
Id. 60 U £ at 407-8.
"Hie Dred Scott opinion was, o f course,
reversed by the adoption of the Thirteenth
and Fourteenth Amendments to the United
States Constitution after the Civil War.
Yet, the power o f the continuing public
perception o f inferiority o f Blacks was re
flected in the adoption o f the “separate but
equal doctrine” in Pleatg v. Ferguson, 163
U B. 537, 16 S .C t 1188, 41 LEd. 256 (1896).
*n>«ro. the majority o f the Supreme Court
approved a lo u is iana statute requiring sep
aration o f white and “colored” races in
railroad coaches with the following lan
guage:
The object o f the [Fourteenth] amend-
was undoubtedly to enforce the
absolute equality o f the two races before
the law, but in the nature o f things it
could not have bean intended to abolish
distinctions baaed upoo color, or to en
force social, as distinguished from politi
es] equality, or a commingling o f the two
races upon terras unsatisfactory to ei-
2. The Court's use of matter* of common knowl
edge concerning broad societal pattern* was de-
NO. 1, DENVER. COLO.
'I (O-CColo. I«SS)
ther. Laws permitting, and even requir
ing, their separation in places where they
are liable to be brought into contact do
not necessarily imply the inferiority of
either race to the other, and have been
generally, if not universally, recognized
as within the competency of the state
legislatures in the exercise of their police
power. The most common instance of
this is connected with the establishment
of separate schools for white and colored
children, which has been held to be a
valid exercise of the legislative power
even by courts of States where the politi
cal rights of the colored race have been
longest and most earnestly enforced.
Id. at 544, 16 S.C t at 1140.
The force of that assumption of inferiori
ty is reflected in these words from the
dissenting opinion of Justice Harl».y
The white race deems itself to be the
dominant race in this country. And so it
is, in prestige, in achievements, in edu
cation, in wealth and in power. So, I
doubt n ot it wfl] continue to be for all
time, if it remains true to its great heri
tage and holds fast to the principles of
constitutional liberty.
Id. at 559, 561, 16 S.C t at 1146, 1147.
In Brown v. Board of Education, 347
U B. 483, 74 S.C t 686, 98 UEd. 873 (1954),
the Supreme Court took notice o f the his
torical experience of the Negro in America,
and it was that history of racial disadvan
tage in our social, economic and political
bfe which formed the predicate for the
conclusion that racially-segregated schools
are inherently unequal. In overruling
Plesry v. Ferguson, the Supreme Court
made a fundamental change in the interpre
tation and application of the equal protec
tion clause o f the Fourteenth Amendment.
Departing from its past practice of decid
ing such issues by discoursing on political
theory, the Court considered evidence of
the actual effects o f rarial separation well
beyond the record before it, n«mg second
ary sources o f information.1 Thus, in af-
fended in Black. The Uwfubmtt of the Stgrqo-
1496 «0* FEDERAL SUPPLEMENT
firming the Kansas case finding that segre
gation has a detrimental effect upon Negro
children, the Court said:
Whatever may have been the extent of
psychological knowledge at the time of
Plesey v. Ferguson, this finding is amply
supported by modern authority.
Broum, 347 U.S. at 494, 74 S.C t at 692
(footnote omitted). The footnote for that
statem ent referred to several publications,
including E.F. Frazier, The N eg ro in the
U n ite d S ta te s , 674-681 (1949). The follow
ing passages appear in that work:
The theory of separate but equal edu
cational and other facilities has never
worked out in practice. Separate edu
cation for Negroes has always meant
inferior schools and inferior t»a/»hing per-
sonncl for Negro children. Inferior
schools have caused a high rate of Qliter-
aey to continue among Negroes since
Emancipation. The resulting mental iso
lation of Negroes which continued a half
century was only partially broken down
by the mass migrations of Negroes to
northern cities during and following
World War I. Because of the discrimina
tions in regard to employment the Negro
has been kept in the lowest paid and
unskilled occupations, and thus there has
been no premium placed upon exception
al skill and talent among Negroes.
. . . Consequently, the Negro has never
been permitted to achieve the full stature
of a man through competition with
whites. Many o f his leaders have owed
their pre-eminence to the fact that they
have played the role o f m ediaton in a
pattern o f race relations based upon the
economic dependence and social subordi
nation of the Negro. The dominant
white interests have singled out mediocre
Negroes for the role of "great N egroes,”
while Negroes of superior mental endow
ment and courage have been crushed as
irresponsible radicals. Thus s factual
and objective basis for the charge that
the Negro is a "child” race has been
provided in the whole system of racial
discrimination. It is no wonder that
since the Negro has been treated and
regarded as a "child” race, whites have
not taken him seriously. In fact, as the
result o f the system of discrimination,
the Negro has not been permitted to play
a serious role in the economic and |
life of the nation.
Id. at 674-677.
Another of the publications cited in **»»t
footnote is G. Myrdal, An American Di
lemma: The Negro Problem and Modem
Democracy (1944) which includes the fol
lowing observations:
But when segregation and discrimina
tion are the outcome o f individual action,
the second main norm o f the American
Creed, namely, liberty, can be invoked in
their defense. It m ust be left to the
individual white man’s own discretion
whether or not he wants to receive Ne
groes in his home, shake with
them, and eat with them If npbeM
solely by individual choice, social segre
gation manifested by all white people in
an American community can be—and
is—defended by the norm o f personal
liberty. When, however, legal, economic,
or social sanctions are applied to enforce
conformity from other whites, and when
Negroes are made to adjust their behav-
M Tats LJ. 421 (1940). Prate-
The case seems as encoded that it is hard to
make out what is bat^ protaaud
when h is asked, rhetorically, how the Court
can poaeiMy advise itself of the real character
of the segregation sysum. It teems that whet
is being said is that while so actud
exist* as to what tepngaboe is for end what
kind of societal patters it wpports sod inc ite
menu, there is no ritually lenrtinned way in
which the Court, as a Court can permiaaibty
leant whet is obvious to everybody alee sod to
the Justices as individuals. Bin surely, cow
fronted with nich s |wwhu... « n u ^ .
has only one proper taak-that of develops*
ways to make it pennisaibie for the Court to
use what it knows; any other coumal b of
da^air. And. emmOy surely, the fact that the
Court has assumed as true a master of com
mon knowledge in regard to broad societal
panama, is (to any the very laam) pretty far
down the list of thb*» to praam -g-1—
UL at 427-421.
KEYES ». SCHOOL DIST. NO. 1. DENVER, COLO.
C«*M «0*F.SHp t . I«*l (D.CCoio. IMS) 1497
hr in response to ortsnizcd white de-
mnnd*. this violate* the norm of personal
liberty. In the national ideology, the
point where approved liberty change*
into disapproved restriction on liberty ia
left somewhat uncertain. The old liberal
formula that the individual shall be left
free to follow the dictates of his own will
so long as he does not substantially ham
per the liberty of other person* does not
solve the problem, because it is not defi
nite enough. A* remarked in an earlier
chapter, the American Creed is in a pro
cess of change from "rugged individual-
i*m." It is giving increasing weight to
"the other fellow ’s” liberty, and thus
narrowing the scope of the actions which
become condoned by the individualistic
liberty formula, (emphasis in original)
To apply the American value premises
in this condition o f internal conflict with
in the concept o f liberty itself—which is
only another aspect o f its external con
flict with the concept o f equality—stress
ha* to be laid on the actual amount of
diMTunination. When there is substan
tial discrimination present, liberty for the
white person has to be overruled by
equality. To discern discrim ination m
m ust take into account the indirect ef
fe te of segregation in terms of cultural
isolation, political and legal disabili
ties, and economic disadvantages,
which art often much mors important
than the direct social discrimination.
(emphasis added)
A t at 578-674.
Tbe impact o f the Brown decision was
feh far beyond the achools. In a firm and
consistent line o f decisions, the ruling was
“ tended to prohibit public segregation of
other public farflttiss, such as transporta
tion system s, Gagle e. Browder, 852 U.S.
90«, 77 S.Ct. 145, 1 LE<L2d 114 (1956Y,
parks and playgrounds, New Orleans City
Pdrk Improvement A ss* v. Detisgs, 858
U A 54, 79 S .C t 99, 8 L E dJd 46 (1958),
Wright v. Georgia, 878 U 5 . 284, 88 S.C t
1240, 10 L E dJd 849 (1968), Watson v.
Memphis, 878 U3 . 526, 88 S.C t 1814, 10
LEd. 2d 529 (1968); go lf courses, Holmes v.
City of Atlanta, 850 U.S. 879, 76 S .C t 141,
100 LEd. 776 (1955); beaches and bath
houses, Mayor of Baltimore v. Dawson,
850 U.S. 877, 76 S.C t 1S8, 100 LEd. 774
(1955); auditoriums, Muir v. Louisville
Park Theatrical Ass'n, 847 U.S. 971 74
S.C t 783. 98 LEd. 1112 (1954); court
houses, Johnson v. Virginia, 878 U.S 61
88 S.C t 1058, 10 LEd.2d 195 (1968); park
ing garages, Burton v. Wilmington Park
ing Authority, 865 U.S. 715, 81 S.C t 856, 6
LE d.2d 45 (1961); and airports, Turner v.
City of Memphis, 869 U.S. 350, 82 S.Ct
805, 7 LEd.2d 762 (1962). See also, Lov
ing v. Virginia, 888 U.S. 1, 87 S.C t 1817
18 LEd.2d 1010 (1966) (striking down sum
miscegenation laws.) "The principles an
nounced in [Brown ] . . . according to the
command of the Constitution, are indispen-
sible for the protection of the freedoms
guaranteed by our fundamental charter for
all of us. Our constitutional ideal of equal
justice under law is thus mad* a Bring
truth.” Cooper v. Aaron, 858 U.S. 1, 19-
20, 78 S.C t 1401, 1410, 8 LFA m 5 (igfig).
In this very a r il action, the Supreme
Court formally recognised that ^
•uffered from much of the same economic
and cultural deprivations. Keyes v. School
District No. 1, Denver, Cola, 413 U A 189,
197, 98 S.Ct. 2686, 2691, 87 L M M 548
(1978). Indeed, the Court mad* the follow
ing specific determine Ison with respect to
the Denver, Colorado community at parr
198 o f the opinion:
th o u g h of different origins, Negroes
and Hiepanos in Denver suffer t t - t r * ]
discrimination in treatm ent when com
pared with the treatment afforded Anglo
students. In that dreum stance, we »ama
petitioners are entitled to have schools
with a combined predominance of Ne-
groea and Hispanos included in the cate
gory of "segregated” achook.
Perhaps much o f the confusion, contro-
▼•rsy and continuing litigation » *»><* a—
occurred natioeaDy in the 81 yea n sine*
Brown, and loeaDy in the 12 yean
Keyes, have been caused by a failure to
appreciate the Court's connection of school
policy with national history. It is not
the schools have been singled out as expert-
1498 «0» FEDERAL SUPPLEMENT
mental vehicle* to redrew all of the past
injustice and inequity suffered by racial
minoritie*; it is that the court* have pro
hibited school officials from perpetuating
the disadvantages caused by pw t practices
o f the larger society.
n»e reason that racial separation in pub
lic schools is a denial o f equal protection of
the laws in contravention of the restraint
of the Fourteenth Amendment is that in
1954, and 1973, and still today, the Anglo,
the Black and the His pane continue to oc
cupy different positions in our pluralistic
nation. To find segregative intent, it is not
necessary to find that an act or omission
resulted from bad purpose or evil motive;
it is sufficient if it reflects a disparate
perception of relative worth. The attitude
o f neutrality characterized by the newly
popular phrase "color blindness” avoids the
obligation to recognize the continuing ef
fects o f past prejudices, practices and pas
sions.
P I Stripped, o f all legalese, the present
state o f the law is that whatever other
dmadvantages n ay be visited upon an indi
vidual in the accident o f birth, the Coratitu-
tion prohibits any governmental use of
n e e , color or ethnicity to hnpnat an impedi
ment to the seeking o f benefits o f public
educational services.
Ih e scientific community to
find significant evidence to su ggest that
aaeh human being may be predestined by
an individual genetic code in very signifi
cant ways. These individual differences
may be influences on mental and physical
development, behavioral adjustment and
risk factors for M------- . aD independently
o f rues, sex or other group characteristics.
Ih ase findings o f physical compel a
reeding o f the "eattwvidsa t truth” t ia t "all
men are created equal,” to moan that the
g o v sn a a u t m ust act “as iT each person
has equal potential for achievem ent No
school policy and no court order eaa assure
any particular level o f success in public
schools any more than in any other aspect
of life. Individual students will flunk, be
come disciplinary problems, drop out or
otherwise fail to m eet expectations for rea
sons wholly unrelated to race, ethnicity,
and environment The true causes for
those results are properly matters of inter
est to educators, sociologists, psycholo
gism, physicians and other disciplines.
Neither cause nor effect can be used in
applying constitutional principles.
Stated w a prohibitive, what the Consti
tution requires is that the government
must not itself act w an agent of predesti
nation in association with any immutable
characteristics of birth. There a no scien
tific evidence to suggest that such group
characteristics ss race or sthnidty ate lim
iting factors on any individual To the
extent that race is s disadvantage, it is the
result of prejudices, attitudes and historical
deprivation. Data suggesting different
achievement levels according to race are
relevant only as circumstantial evidence of
the effects o f discriminatory attitudes and
practices. To aacape the intangible effects
of any stereotyping or latent bias, govern
ment officials must avoid the use of racial
identifications in x ’+fag on public issues.
That is true whether governm ent sets to
regulate and restrict conduct or to provide
services such i s educational opportunity.
THE DEFENDANTS' POSITION
'Hw defendants’ carefully constructed ar-
gum ent in support o f the subject motion
has ths appeal o f logic. Stated succinctly
at page 2 o f the defendants’ poet-trial brief,
the contention is this:
Ones a school district has <v»mpiM with
a constitutionally-acceptable court-or
dered remedy that is to deseg
regate the system in the full sense, and
has maintained substantial enmpHatw
with that remedy for a sustained period
of time, the school dis trict is entitled to
be declared unitary unlaw th en have
been intervening acts o f dfccriminatioo.
The prime thesis o f this argum ent is that
this court’s 1974 Final Judgm ent and De
cree, as modified in 197C, was a complete
remedy for all o f the coratitutioaal viola
tions found in this case. The validity of
that theais is critical to tbs contention that
by complying with the requirements o f that
S ’ J S S a
eradication of the e f f * ^ .! * and
n r * * 1 J 1 2 ? . r i f s -
of E d u c a to r * * ? J ^ S T b ? ? !
out of the White residential farniI,e*
e « t of Colorado B oultv^d W J 0? 10? *
in^ attendance areas H . , by n“ a,P“lat-
s r * - .
SSKS£?=S
Wl£ S S ” °U°“°ilT' — “““Ik ‘
a w a v -T 0001 to“ t*d on|y * few blocks
It J a . operating at 20% over capacity
£ rT V p?Hnt »«•«. 2 S £ '
S L y L yg,?-,.^ n ™ ° « r y
Black n n n l » T ^ ^ *“ "**»** Of
class M b°* *®d additional
Pm o the capacity o f thoae schools while
s s y * * w d « £ v x :
^ o o te ^ L ^*™ **1 “^ o r to o d s . the
^ - f t a s S t t a r * -
them w ith^Jw PBplacio»
W i“ * 2
tha court. a J l ? ’ tiffs came to
in llS k preliminary injunction
Throa*h »D of the intei-rening yean th .
n o rth J !! n -T ***17 ° f eootamment in
Dourer affect the D w rer Public
School System as a whole! What
quired to re more those effects’ Those
* • « — * a d . c m ^ o b ^ r
*• S S S J W r - NO. , DENVER. COLOK *“®’ FA*rr i**i (D.ccoio. i«ui 1499
sidered by two judges in this court
judges of the Tenth Circuit C oJ£ £ ? *
Peals, and the Justices of t h .^ f Ap_
Court of the United States * A thJrfPr*me
ith h“ b~- >•£* *"£ s
ows, now comes to the spotlight WhTt
m“ t k* koiw u, p r o t ^ T ^
JET***"
J ‘ k w of th i. case that the 1974
Fmal Judgment and Decree r u not in
sdequate remedy for segregated sc h £ o
•ignm ents. The Tenth
Peal, m ^ S c k o o l^ t r £
ver- Colo., 521 F.2d 465 noth
a r t denied. 423 U.S 10M ae c _5*LW5>-
L.Ed.23 657< m « * S C t 806 «
'» pppa S»
« « S *We hold that the » •* . .
component o f the court's r e ^ y £ ? £
•egregation of elementary schools it not
“ Perm anent prem ise for rfntmnu, ■
y k “ k " < *« P n J Z £ Z ? Z Z
Z ' ™ read this innorabon a*
by the trial court as an*ad*
h* t0,*r4Ud onJT as such undtt
a J ^ J L ? J toWmrd ^ integration.
J i ? * oonrtJg
“ "““ •d by the constitutional
m*nt ^ t the court make MeTerr*rffa!ttO Ifkitkwa aL. """ y w o r t
k fy * * o f
the ®to account
practicalities o f the situation." /v>
Z & S Z * * ” 1 COmmU™>*T* of "obiU County, 402 U5 . 88 « 01 q r*
®™» the record and the datriet court's
^ J * on’ "7* ^nd bo insurmountable prac-
***1 impediment to fulW m e arr^TT
Jn d ^ both the court a n d T ^
* « dt s :
Part tune classroom pairing would easily
nrert to a fu lk im e program. The
P*rt^lrat Pi»n offers some o f the
moat serenely segregated schools in the
1500 •0* FEDERAL SUPPLEMENT
district only put-tim e desegregation; of
the eighteen predominantly minority
schools in the put-tim e program, thir
teen have projected enrollments of less
than ten percent Anglo pupils. Under
the circumstances a partial solution for
these schools is not enough.
Id. at 477-478 (emphasis added) (footnote
omitted).
The Tenth Circuit also faulted the district
court’s plan for leaving Boulevard, Chelten
ham, Del Pueblo, Elyria and Garden Place
as segregated Hiapano schools, and re
versed the conclusion that remedial edu
cation was an acceptable substitute for
reassignm ent of students. With respect to
those schools, the Court remanded with the
following instruction:
We therefore remand this portion of
the case for a determination whether the
continued segregation of students at the
five mentioned schools may be justified
on grounds other than the institution and
development of bOingual-bicultural pro
grams at the schools. "The district
judge . . . should make every effort to
•chieve the greatest possible degree of
**■01*1 desegregation and will thus neces
sarily be concerned with the elimination
of one-racs schools.” Swann, supra,
402 U.S. at 26, 91 S.C t at 1281.
Id at 480.
The establishm ent o f tbs East-Manual
complex was also reversed. Finally, the
appellate court affirm ed the district court's
requirements with respect to the desegre
gation o f faculty and sta ff, n«™g the fol
lowing language:
During the 1978-74 school year, da-
proportionate numbers o f the Denver
school system 's minority teachers were
assigned to schools with high concentra
tions o f minority students. Despite the
D istrict’s institution o f a minority re
cruitment program in recent years, the
percentage o f minority faculty members
in the system has not increased appreci
ably. Of the view that faculty desegre- S-
S- In fact these issues were litigated at length in
May. 19(2. resulting in the Memorandum Opin
ion and Order oe Language 1—'*i which ap-
gation is essential to the process of
school desegregation, th e d is tr ic t co u r t
o rd e re d the D is tr ic t to a ss ig n i ts p e r
s o n n e l so th a t, in each school, th e ra tio
o f m in o r i t y tea ch ers a n d s t a f f to A n g lo
tea ch ers a n d s t a f f s h a l l n o t be less th a n
S0% o f th e ra tio o f m in o r i t y to A n g lo
s t a f f in th e e n t ir e sy s te m . The School
Board does not dispute the propriety of
this component of the court's remedy.
Contrary to the School Board, we be
lieve that these measures to ensure fac
ulty desegregation were properly pert of
the court’s order. Faculty and staff
desegregation is an ”important aspect
of the basic task of achieving a public
school system wholly free from racial
discrim ination." (citations omitted)
We believe that the court's faculty and
sta ff desegregation orders were proper
and we affirm.
Id at 484 (footnotes omitted) (emphasis
added).
The March 28, 1976 Order, entered by
Judge Doyle, approved the use o f an
agreed plan in reeponse to the 0f
the Court of Appeals. It is eleer. however,
that future change was expected nrr
the court said:
The School Board, in Resolution 1897,
haa requested that no changes be
in student school assignm ents far three
yeen ; this in the interest o f continuity
and stability. In the court’s view the
objective is good with the exception
some flexibility should be retained so as
to make adjustments for substantial pop
ulation changes.
Additionally, the issue o f bilingual edu
cation was left open. At that tim e, it was
expeeted that a stipulated proposal for the
modification o f the bilingual program
would be immediately forthcoming.*
Thk court hooored the request to avoid
altering the student assignm ent pi»»» for a
•• Keyes v. School Use. Ms 1. Dmsem.
Colo.. 576 FAupp. 1303 (DXolo.1363).
KEYES
period of three years, and the only changes
made were thoae requested by the District
for the limited circumstances of particular
situations. To plan for declining pupil en
rollment and consequent excess plant ca
pacity, in 1977 the Board of Education ap
pointed an advisory committee of citizens
to study the utilization of school buildings
and to recommend criteria for closures and
consolidations. That committee made a re
port which was accepted by the Board in
April, 1978. The committee did not con
template action to make changes before
September, 1981. The Board changed that
time to September, 1980. After the Com
munity Education Council, a court-appoint
ed monitoring group, expressed concerns
that imbalances in racial composition and
crowded conditions had developed in some
•choola, hearings were held in this court in
January, 1979 to consider the status of
those schools.
v. SCHOOL DIST. NO. 1. DENVER, COLO.
CH« m «m F Jupp . I«*| (D-CColo. IMS) 1501
At that time the court was informed that
the Board o f Education had directed the
of a report by an Administration
Task Force on school closings and school
assignm ents in March, 1979. Accordingly
the court set May 1, 1979 as the date for
the filing of a comprehensive student as
signm ent plan, and set June 1, 1979 as a
date to report on the status of compliance
with orders requiring affirm ative action in
the hiring, assignm ent and in-service train
ing o f teachers, administrators and staff.
A new plan, adopted in Resolution No.
2060, met opposition from the plaintiffs/in-
tervenors and, accordingly, a further hear
ing was held oo July 20, 1979 on the motion
of the defendant School D istrict No. 1 to
implement those portions o f Resolution No.
2060 dealing with school closings and pupil
assignments for the school year 1979-1980.
No one suggested then that tha court
did not have jurisdiction to modify the 1976
popfl assignm ent plan. Moreover, while
the Board wanted to eloae four schools, it
failed to take any action to consider the
objections and concerns which had been
expresaed at the hearing. The Board mem
bers simply did not meet in legislative ses
sion, and left it to this court to make the
necessary changes in pupil assignm ents.
That dereliction of the Board’s duty permit
ted its members to avoid criticism from the
community, and positioned them to contin
ue their popular protest of judicial interven
tion into local self-governance.
This court addressed the question of the
extent of desegregation which existed in
1979 in the Memorandum Opinion and Or
der which appears as Keye» v. School Dial
No. 1, Denver, Colo., 474 F.Supp. 1265
(D.Colo.1979). The court noted that the
Board of Education and administration rec
ognized that Gilpin, Fairview and Greenlee
Elementary Schools had not met the deseg
regation guidelines, and Mid-
What is now needed is recognition by the
Board of Education, school administra
tion, and sta ff that they have not yet
established a unitary, non-radal school
system in Denver, Colorado and that
they have a legal obligation to demon
strate to this court that they are
appropriate action to reach that resu lt
Id. at 1272.
This court then adopted the plain-
tiffs/intervenors' proposal tor the reassign-
ment of students from the dosed Ellsworth
Elementary School; mads its own reassign
ment of students from the rlneed Emerson
Elementary School; made assignm ents to
the new McKmley-Thateher School; reject
ed the Board's proposed removal of Aahlsy
mobile units; approved the reassignment
o f pupils from dosed Elyria Elementary
School; adjusted the attendance sons of
Belmont School; adjusted the Fairview-
Greenlee-Traylor grouping by pairing Fair-
*»w and Rosedale; and authorised the es
tablishment of an Oakland-McGlone pair.
There was no adjustment for Gilpin and
Mitchell, which remained segregated
schools.
There was no appeal from the 1979 Or
der. To the contrary, the court’s view that
unitary status had not been achieved ap
peared to have been accepted when the
Board appointed an Ad Hoc Committee in
May, 1980 to create a definition o f a uni
tary system and to develop guide lines for
its identification. That action was taken by
1502 «09 FEDERAL SUPPLEMENT
Resolution No. 2110, which included the
charge that the Ad Hoc Committee should
also design s new student assignment plan
for pupil assignments to elementary and
middle schools based on demographic data
which had been presented to the Board by
the long-range planning committee in
March, 1980.
The long-range planning committee had
been created by Resolution No. 2079 in
August, 1979. Its report recommended de
veloping a middle school program, eliminat
ing junior high schools and establishing
four-year senior high schools. That edu
cational change required reassignment of
all ninth grade pupils, thereby disrupting
the existing attendance tones. According
ly, the work of both committees converged.
The Ad Hoc Committee’s pupil assign
ment proposal was the subject of detailed
study by the Board of Education during the
summer of 1981. Despite a division on the
issue of “busing,” the Board developed a
student assignm ent plan. It was sub
mitted to this court along with an alterna
tive open enrollment plan approved by a
divided vote and without sta ff study. In
the “Submission of Plans” filed October 30,
1981, the D istrict said;
PURSUANT to the action of the Board
of Education, School D istrict No. 1, . . .
submits the attached proposals entitled,
Community Neighborhood School Open
Enrollment Concept, sad The Denver
Public Schoolk A Unitary Syetem, to
the Court for its consideration.
At the the Board directed the
submission of these proposals, the fol
lowing morion w as adopted:
That the Board o f Education submit
to the United States D istrict Court, for
its consideration, the proposals enti
tled, Community Neighborhood
School Open Enrollment Concept and
The Denver Public School*: A Uni
tary Syctem, as developed by the
Board of Education with the following
recommendations:
A. The Community Neighborhood
School Open Enrollment Concept
plan is the desirable plan.
B. If the Court insists on the mainte
nance of pupil assignments which are
based upon the racial and ethnic identi
fication of students, the Board submits
the alternate plan for the Court’s con
sideration provided, however, that in
those instances where schools are
paired, that the Court authorize the
discontinuance of the pairing and re
turn of the paired schools to neighbor
hood schools at such time as the racial
and ethnic percentages within the
paired schools fall within a range of
20-63% Anglo.
That following submission of the
plans, that the Court determine that with
the implementation of either plan, that
the School D istrict is a unitary school
system and establish a specific timetable
for the relinquishment of the Court’s jur
isdiction.
Upon this court’s refusal to choose be
tween two such dramatically divergent ap
proaches, the Board submitted the open
enrollment concept in what came to be
called the "Total Access Plan.” It was the
subject of a two-week evidentiary hearing
in March, 1982, which resulted in the
court’s rejection of that plan upon the find
ing that it was lacking in "concern, commit
ment and capacity.” The Board then sub
mitted the “Consensus Plan” which consist
ed of the October 30, 1981 student assign
ment plan with two magnet schools as edu
cational enhancements which had been sug
gested in the Total Access Plan. The inter
im nature of the Consensus Plan is identi
fied in the following language from the
introduction to i t
in t r o d u c t io n
In response to the order of the Federal
District Court of March 15, 1982, and in
accordance with th t D tnvtr Board of
Education motion of March 18, 1982, a
pupil assignm ent plan ia being submitted
for the achievement o f a unitary, non-re-
cial system of public education.
KEYES v. SCHOOL DIST. NO. 1, DENVER, COLO.
O U M tM F .au p p .1 4 9 t (D.CCoio. 1*95)
This Pupil Assignment Plan combines the
Concensus Plan of October 1981 with
certain educational enhancements of the
Total Access Plan of December 1981. It
reflects the determination of the Board
of Education to provide a quality edu
cational experience for all children which
will:
•create as many walk-in schools as
possible
■remove as many pupils as possible
from required busing
• bring stability to pupil assignment ar
eas
• continue the effort to realize and
maintain a unitary school system
• remain sensitive to the changing
needs of a diverse, urban pupil popula
tion
• be in compliance with the United
States District Court Order.
The Pupil Assignm ent Plan includes the
mandatory assignm ent of pupils, the
closing of nine schools, and the imple
mentation of the middle school program
now in preparation.
The preparation of the Consensus Plan
included extensive community involve
ment, intensive study by an Ad Hoc Com
mittee of the Board of Education, and
direct personal involvement of all mem
bers of the Board o f Education in the
final decision making process, resulting
in a comprehensive plan for adjusting
existing school attendance boundaries
Two educational enhancements o f the
Pupil Assignm ent Plan are the Funda
mental School to be conducted at Knight
Elementary School and a self-supporting
extended day school at Gilpin Elementa
ry School The ethnic ratio in each of
these schools shall reflect the pupil popu-
l*tioo in the D istrict in keeping with
Court determined pupil ethnie assign
ment ratios. Knight FSiitdem—
School will be open to all pupils in the
District; the GQpin School population will
include pupils in the home attendance
area and pupils from the entire D istrict
who are enrolled in the extended day
program.
1503
Upon Court approval of the Pupil Assign
ment Plan, staff will begin preparations
for further educational enhancements for
possible addition each year as an ongoing
feature of District educational planning
policy.
In addition, the Plan includes three sig
nificant Denver Public Schools initiatives,
components of the Total Access Plan!
which are designed to enhance education
al opportunity:
■ District and School Accountability
Councils
• Guidelines for Pupil Placement
•Standards for School Effectiveness.
The presently authorized District and
School Accountability Councils are used
in the Plan as monitors of educational
quality and equity, achievement of goals,
and equitable disciplinary policies and
procedures.
Guidelines for Inschool Pupil Placement
were approved by the Board of Edu
cation in February 1982. These guide
lines ensure that pupils will participate in
experiences that are relevant to the cul
tural, ethnic, and racial diversity of the
school and that grouping is based on s
fair assessm ent of pupils’ skills, inter
acts, needs, and aptitudes.
The “Standards for School Effective
ness’ is based on extensive research
which has identified characteristics o f ef
fective schools. The “Standards” in
cludes specific instruments for •■ -rtting
these characteristics and m « ,( f„r
taming effective practices and improving
areas of weakness in each school
Finally, the Board o f Education submits
for the Court's approval plans for build
ing a needed elementary school facility in
Monthsllo and a replacement facility in
the Columbian area.
The basic instructional programs and ed
ucational enhancements presently in
place in the Denver Public Schools also
are described and included in this report
In approving the Consensus Plan, this
court emphasised that the approval was for
an interim solution, recognising that the
plaintiffs/intervenors had made objections
1504 *09 f e d e r a l s u p p l e m e n t
to portions of it with sn evidentiary show
ing that it would probably produce resegre-
gative effects in some elementary schools.
The court’s reservations were expressed in
the following language:
In this case, I am now accepting the
modified consensus plan for the single
school year of 1982-83. I do so with
considerable reservation because I am
not convinced that the incumbent school
Board has shown a commitment to the
creation of a unitary school system which
will have adequate capacity for the deliv
ery of educational services without racial
disadvantages.
The consensus plan is an expedient
which wfll accommodate the educational
policy decision to move to middle schools
and which will attenuate the divisive ef
fects from the factionalism found in the
present board o f education. The positive
element in this plan is that it reflects a
consensus o f tbs views of the board
members. Acceptance of this plan for a
single school year is not to be construed
as an abdication o f this court's authority
and responsibility to compel compliance
with the desegregation mandate.
K eftt v. School D iet No. I, Denver, Colo.,
540 F.Supp. 899, 408 (D.Colo.1982).
Along with that reaarvation, the court
attempted to set som e direction for the
anticipated future planning by adopting the
Ad Hoe Committee’s definition o f a unitary
school system as foOoars:
A unitary school system is one in which
all o f the students have equal access to
the opportunity for education, with the
publicly provided educational resources
distributed equitably, and with the expec
tation that aD students can acquire a
community tiafhed level o f knowledge
and sldDs conaistent with their individual
efforts and abilities It provides a
chance to develop fully each individual’s
potentials, without being res tricted by an
identification with any racial or ethnic
groups.
Id. at 409-404.
This court also expressed a favorable
view of the Ad Hoe Committee’s guidelines
as criteria for identifying a unitary system
in operation. Believing that progress to
ward the defined goal of unity required
both effective monitoring and expert advice
from appropriate academic disciplines, and
after consultation with counsel for all par
ties, the court appointed the Compliance
Assistance Panel, composed of three out
standing scholars who had appeared at var
ious times as expert witnesses in this case.
The court’s charge to that committee
was to perform the following duties:
1. To meet with the Board of Edu
cation, any committee or administrative
sta ff designated by the Board, and with
counsel for the parties herein, for the
purpose of preparing a timetable for the
preparation and submission of a pupil
assignm ent plan for the school year
1988-84.
2. To meet with the Board of Edu
cation, any committee or administrative
sta ff designated by the Board, and with
counsel for the parties herein, for the
purpose of preparing appropriate guide-
tines for pupil assignm ent plans for sub
sequent years, including long-range plan-
ning.
8. To prepare and submit a set of
criteria for the identification of a Unitary
School System, using the Unitary School
System Plan Final Report of the Ad Hoc
Committee, prseanted June 5, 1981 (De
fendant's Exhibit D -2) as an initial work
ing document.
4. To develop a plan to review, ana
lyse and report on the present affirma
tive action plan for faculty and staff,
including in service training, and eonti-
gency plans for recruitment and reduc
tion of faculty and sta ff, according to
needs, on a non-discriminatory basis, con
sistent with *” *»"g collective bargain
ing contracts.
5. To prepare a plan for review, anal
ysis and reporting on any radaDy die-
criminatory effects from present practic
es in the measurement o f educational
achievement and student diseiptine.
1505KEYES v. SCHOOL DIST. NO. 1. DENVER, COLO.QUMWFiwMI (D.CCoto. IMS)
6. To develop recommendations for
establishing criteria for school closings
and new construction.
7. To develop a recommendation for
constraints to be considered in proposals
for the establishment of additional mag
net schools and any other proposals for
enhancement of educational opportuni
ties to ensure racial and ethnic equality
in the availability of such services.
8. To develop recommendations for
interaction with local, state and national
governmental agencies whose decisions
concerning housing, zoning, transporta
tion and other governmental services
may influence and affect school policies
and programs, including the demograph
ics of the district
9. To develop a plan for the collection
and collation of the vicars of identifiable
organizations and groups concerned snth
equal educational opportunity.
10. To develop a plan for the assess
ment of the effectiveness of the monitor-
. ing and self-evaluation methods adopted
by the School D istrict
It now appears from the testimony of
Board members and administrative sta ff at
the hearing on the subject motion that the
court's appointees were seen as interlopers,
and that this court eras considered to be
intervening in the operation o f the school
system far beyond any appropriate role. It
is also now apparent that contrary to what
was being represented to the court and to
the community, the Board had adopted a
secret agenda to hire a mathematician ex
perienced in the display o f statistical data
in desegregation cases and a new lawyer,
who had succeeafuDy repi sssnted another
school district in Pooadona City Board of
Education % Spongier, 427 U.S. 424, 96
S .C t 1087, 49 L X dJd 699 (1976), to devel
op the display prassntod with the effort to
terminate this litigation. In consequence,
the spirit of cooperation which had seemed
to exist among counsel in this case was
replaced by the okl adversarial confronta
tion necessary for the proper presentation
o f the very different view s which are now
before this court
In approving submission of the subject
motion, the Board of Education altered its
position in this litigation. All of the mem
bers of the Board adopting Resolution No.
2228 have testified to their individual inten
tions in taking that action. The common
theme was the expression of a shared con
cern that continuation under court control
stigm atizes the Denver school system with
consequent adverse effects on the schools
and the community as a whole. There is a
perception that families have fled to pri
vate schools and to the suburbs to avoid
forced busing, and a belief that this court’s
involvement creates a climate of coercion
which prevents the development of positive
and innovative educational programs.
This court does not discount the reality
of the declining enrollment and the possibil
ity of a causal relationship with court-or
dered reassignments as suggested by some
o f the data in the evidence. It is also
unquestioned that people who devote their
time and energy to the extremely difficult
task of serving on the Board of Education,
without remuneration, are citizens with
outstanding qualities of commitment to the
public welfare and dedication to the beet
interests of future generations. They are
chosen from the community to express and
implement the wfll o f the electorate, and it
m ust be assumed that the subject motion
was the sense of the majority o f the voters
in D istrict No. 1. Yet, School Board mem
bers, as all other elected re presentatives of
the people, m ust also boar and bead the
commands of the Constitution which often
conflict with majoritarian opinion. The
courts have the duty to articulate and ap
ply those constitutional limitations in par
ticular circumstances.
HAS A UNITARY SCHOOL SYSTEM
BEEN ESTABLISHED IN DENVER?
In answering affirm atively, the defend
ants set forth a simple syllogism . Major
premise: The 1974 Decree, as modified in
1976, called for a complete and adequate
remedy for the segregative effects of Den
ver's dual system . Minor prem ise The
District has complied with all of the re-
1506 M» FEDERAL SUPPLEMENT
quiremenu of thv Decree since 1976. Con
elusion: Denver has achieved desegrega
tion and is now a unitary district.
f2] As already discussed, the Tenth Cir
cuit Court of Appeals determined the 1974
Final Decree to be inadequate. Therefore,
the question to be asked with respect to the
major premise in this argument is whether
the 1976 modifications, coupled with the
remaining portions of the 1974 Decree, con
stituted a sufficient plan to desegregate
the entire Denver Public School System
root and branch.” 4 As counsel for the
District recognize, an adequate desegrega-
t»n plan must include more than the as
signment of pupils to avoid the racial iden
tification of schools. It must also address
the policies and practices with respect to
faculty, staff, transportation, extracurric
ular activities and facilities. Green v.
County School Board, 391 U.S 480 88
S.C t 1689, 20 L.Ed.2d 716 (1968). Addi
tionally, an adequate remedy must ensure
*8*inst any future use o f school construc
tion and abandonment to serve, perpetuate,
or re-establish s dual system . Swann v.
Ckarlotte-Mecklenbury Board of Edu
cation, 402 U S . 1, 91 S.Ct. 1287 28
L.Ed.2d 554 (1971).
As noted above, the 1976 Order was sim
ply the approval o f a stipulated plan sub
mitted in a spirit o f compromise and, by
Resolution No. 1897, the Board Indicated
clearly the expectation that efengea would
be required in future y ea n . That was the
rmaon the Board requested a three-year
moratorium. Nothing in the 1974 Order,
and nothing in the 1996 agreed plan, estalh
lished any mechanism to avoid future seg
regation in mat ing school construction and
school abandonment dedeiow . A t this
point, it is wall to return to the
iM guage o f the Supreme Court in Swann.
In devising remedies where legally im-
P°Md segregation has been w tablhhed,
■ the responsibility o f local authorities
and district courts to see to it that future
school construction and abandonment are
**,. T * .'rc? branch* requirement wm escab-
^ 'LCota'r* 5c*ooi Koard, 391 VS. 430. 434, 14 S.O. 1649. 1694. 20 1 RH 7 1 4
not used and do not aerve to perpetuate
or f^^atabliah the dual system. W hen
necessary , d is tr ic t c o u r ts s h o u ld r e ta in
ju r i s d ic t io n to a s su re th a t these res
p o n s ib i l i t ie s a re c a r r ie d o u t
idLd)S' ̂ 21’ 91 S Ct at 1279 (emPbasis
[3] Plainly, the court and all parties
were aware that the remedy phaae of thia
caae did not end with the aigning o ff on the
1976 agreed modifications and intended the
retention of jurisdiction for the indefinite
future. The adequacy of any desegrega
tion plan is, o f course, measured not by its
attentions but by it . effectiveness. See
Dayton Board of Education e. Brink-
u s - “ 6. 588, 99 S.C t 2971, 61
LEd.2d 720 (1979) (Dayton II). Thus, de
termination of the adequacy o f the 1974
pl»n, as modified in 1976, is directly related
not only to the degree of compliance by the
defendant District in the intervening Tears
but also to whether the implementation of
tbe plan achieved the results intended.
Therefore, the major premise and minor
premise may be addressed together in re-
**•*“ 8 the subsequent everts.
lccom Pb«hed between
1976 and 1980? Mitchell, Gilpin and Fair-
view Schools fall below the then Ht
guideline o f a minimum 84% Anglo en rol
ment in the fall o f 1976. In 1979, Mitchell
had a 26J% Anglo enrollment, and
had fallen to 19.6%. The need to does
•om e school farititiaa became apparent aa
m riy as the 1976-1977 school year. Thk
court's Order set May 1, 1979 as the date
* * the Board to file a comprehenaive stu
dent assignm ent plan, and June 1, 1979 as
the reporting date on the status o f other
aspects of the plan, including affirm ative
motion and in-service training. As earliar
notad, a plan was submitted by Resolution
No. 2060, and the plaintiffs/intervenon
fflod objections with alternative propoeab.
Ib the abeenee o f further Board aetirei to
° » e t thoee objections and to ~w- ia— the
Alternative proposals, thh court
(1961). and was msdftcally appUad lo Daevsr la
Keyes, 413 UA at 213, 93 &CL at 2449.
1507KEYES v. SCHOOL DIST. NO. 1. DENVER, COLO.au m to* F-Bupp. 14*1 (D-CXaio. IMS)
pelted to mike the reassignment of pupila
from the closed schools ind to attempt to
lite r the rsciil isolation of Fairview. The
court did not act to remedy the racial iden
tification of Gilpin and Mitchell Schools,
and it was partially for this reason that the
court expressly recognized that the 1979
order was interim action required to meet
an "existent emergency.” Keyes, 474
F.Supp. at 1271. The court also, as earlier
noted, made an explicit finding of fact and
conclusion of law that the School District
had not achieved unitary status, and there
was no appeal from that determination.
The adoption of the Consensus Plan was
explicitly identified as another interim ex
pedient, made necessary by the Board’s
abrupt change of position in submitting the
Total Access Plan, implicitly repudiating
the work of its own Ad Hoc Committee.
Keyes, 540 FBupp. at 404. During the
1982 hearings, the plaintiffs addressed
very specific objections to features of the
Consensus Plan and predicted resegrega-
bve effects from its implementation. It is
important to recognise that the “consen
sus” of the “Consensus Plan” referred to a
6-1 consensus of the School Board mem
bers, and did not involve any agreem ent by
the plaintiffs or the interrsnore. It is also
clear that the basis for the formation of the
Board consensus was an effort to reduce
“forced busing” by attem pting to expand
walk-in attendance areas. The proposal
was premised on a hope that there would
be a discernible movement toward natural
integration o f theae attendance tones by
changes in housing patterns.
The evidence new before the court shows
that the plaintiffs’ objections and the
court's concerns about the Consensus Plan
were weB founded. Barrett and Hairing-
too have become racially identifiable
schools, with their res pective Anglo popula
tions falling from 48.8% and 25.8% in 1981
to 18% and 15% in 1968. Mitchell fell from
22.5% to 12% Anglo. The plaintiffs/into r-
venors argue that the reeegregation of
these schools as a result o f the adoption of
the Consensus Plan establishes proof of
official segregative action which justifies
remedial action by this court The defend
ants counter with the contention that the
loss of Anglo enrollment at these schools is
additional evidence of the phenomenon of
white fligh t and that the existence of three
racially identifiable elementary schools
does not indicate a return to a dual system.
Indeed, a basic dispute between the parties
in this case is the manner in which statis
tics should be used to measure desegrega
tion, as will be discussed later in this opin
ion.
It is not necessary to deal with the con
tention that the Consensus Plan showed
segregative intent The conclusion of this
court is that it has had and continues to
have jurisdiction in this case, and no new
intentional acta are required to justify the
exercise of that jurisdiction.
Over the last nine yean , the Denver
Public School System has become smaller,
both in num ben of students and schools.
In 1976-77, the school system contained
61,680 students in 119 schools. In 1988-84,
the Denver Public School system contained
51,159 students in 107 schools. The ethnic
ity of the pupil population has also
changed. In 1976-77, the D istrict was
49.88% Anglo, 28.28% Hispano and 20.90%
Black. In 1988-84, the District was 89.18%
Anglo, 88.38% Hispano and 22.72% Black.
There are now three levels o f schools in
the system , elementary schools, middle
schools (grades 7-8), and high schools
(grades 9-12). In 1983-84, 80 schools, or
nearly 75% o f the schools in the school
system , were elementary schools. The
number of schools and their sixes are sig
nificantly different at the throe levels.
Maintenance of stable ethnic distributions
o f students is more difficult in the elemen
tary schools than in either the middle or
senior high schools, because the same abeo-
lute change in the number of students in an
elementary school has a greater relative
effect on ethnic percentages in the school.
Typically, elementary school attendance
zones are smaller and more sensitive to
local demographic changes. T helargerthe
school, the more elastic is its response to
small changes in school populations.
1508 •09 FEDERAL SUPPLEMENT
The defendants have presented a vast
array of statistical data and expert opinion
to support the claim that since 1976, the
City and County of Denver and the Denver
Public School System have undergone de
mographic changes which have had a
striking effect on student attendance
patterns. The District urges that “exten
sive movement” of population within Den
ver and “a steady and large decline in
enrollment, almost all of which represented
a loss of Anglo students” are reasons for
the development of racial imbalance in cer
tain schools. In making that argument,
defendants place heavy emphasis on an
exhibit derived from a question in the 1980
kmg-form census questionnaire (which
asked where people lived five years ago) to
suggest that there was a large migration
of Anglo families with school-age children
from Denver out to the suburbs between
1975 and 1980, and that there was no sig
nificant converse movement
This presentation is flawed by the omis
sion o f information about persons who
lived in Denver in 1975 and moved away
from the entire metropolitan area. The
exhibit titled “Patterns o f Demographic
Mobility and Family Income Within Denver
SMSA” presents data in three groups.
Group A is titled “Denver Residents,”
group B is "Suburban Residents,” and
group C is “In-M igrants.” Tbe universe
from which the percentages are computed
for groups A and B is not complete. Group
A only makes sense as a description of
what has happened to the set o f people who
were Denver residents in 1975. It indudss
those 1960 Denver residents who answered
that they did not move or moved only with
in Denver. It also includes those residents
in the Denver suburbs in 1980 who re
sponded that they lived in Denver 6 yean
However, Group A does not in
clude the persons who did Uve in Denver in
1975 but who moved away from the Denver
SMSA (Standard Metropolitan Statistical
Area) before 1960. The '^ ^ I stv'ns for
Group B contain the sam e omission. With
out knowing how many households moved
away from the Denver metropolitan area
since 1976, accurate percentages cannot be
computed, and the data are not very help
ful in the present analysis. This court is
not persuaded that demographic change is
the reason for the development of racial
imbalance in the schools.
HAS DISTRICT NO. 1 COMPLIED
WITH THE COURT ORDERS?
S tu d e n t A te ig n m e n ta
The District did implement the pupil as
signment plan accepted by the 1976 Decree
in the school year 197&-1977. Transporta
tion was provided and, on the whole, pupils
were required to attend the designated
schoola. Accordingly, during that particu
lar school year, the Denver school system
can be considered desegregated with re
spect to pupil assignments. That, of
course, is but one of the elements in a
unitary system.
Faculty Assignment!
The plaintiffs/intervenors contend that
there has never been compliance with the
faculty assignm ent provision of the 1974
Decree. On this point, the evidentiary
hearing on the subject motion presented a
question o f which this court eras not previ
ously aware. Paragraph 19A of the 1974
Decree imposed the following requirement
with respect to faculty assignments:
E ffective not later than the beginning of
the 1974-75 school year, the principals,
tseehers, tee rher aides and other sta ff
who work directly with children at a
school shall be so assigned that in no
case will the racial or ethnic composition
of a sta ff indicate that a school is intend
ed for minority students or Anglo stu
dents. Tbs D istrict shall assign the staff
described above so that the ratio o f mi
nority to Anglo teachers and other staff
in each school shall be not leas than 50%
o f the ratio o f such teachers and other
sta ff to the teachers and other staff,
respectively, in the entire school system .
Because o f the present small number of
Chieano teachers in the system , complete
achievement o f the required ratios as to
Chieano teachers is not required immedi
ately, but should be achieved ss soon as
possible.
1509KEYES t. SCHOOL DIST. NO. 1. DENVER, COLO.
C lu M «M F-Supp 14*1 <D C.C®k>. IMS)
The parties have differing interpreta
tions of that language. The District inter
prets paragraph 19A to require that the
ratio of Black teachers to the total of
Black, Hispano and Anglo teachers in each
school be compared with the district-wide
ratio of Black teachers to the district-wide
total of Black, Hispano and Anglo teachers,
and that similar but separate ratios also
should be computed for Hispano teachers.
Further, the District has determined that
in applying these ratios for a particular
school, if the required number of Black or
Hispano teachers is some integer number
plus a fraction which is less than one-half,
then a school is in compliance with the
decree if its faculty includes only the whole
number of such teachers. Any fractional
part less than one-half has been ignored.
For example, in 1981-82, the district ratio
of Black classroom teachers to the total of
Black, Hispano and Anglo classroom teach
er* was 0.1350, and one-half o f this number
is 0.0675. Carson Elementary School had
25 Black, Hispano and Anglo teachers. To
have a Black facplty percentage greater
than 50% of the district-wide ratio, Canon
would require 0.0675 x 25, or 1.69 Black
teachers. In 1981-82, Canon had 3 Black
teachen and satisfied paragraph 19A as
interpreted by the District. However, in
1981-82, Johnson elementary school had 22
Black, Hispano and Anglo teachen and
would need 0.0675 x 22, or 1.485 Black
teachen to satisfy the test. Johnson had 1
Black teacher. Because the remaining
fraction was leas than 0.5, the District de
termined the school to be in compliance.
Another important aspect of the Dis
trict’s approach is the use of the prior
year’s district-wide teachers' n tio s to de
termine the degree of compliance for a
current year because it is the District’s
practice to assign faculty members in the
spring for the following fall. A possible
result is that the district-wide n tio s used
are less than the actual n tio s of minority
to total teachen in the district for the
following year if, in fa ct the proportion of
minority teachen increases from year to
year, as a result of the affirmative action
hiring program. That has, indeed, oc
curred. The District defends this as the
proper way to determine compliance be
cause it is the only basis on which faculty
assignm ents for a new school year can be
made. There is no explanation for that
conclusion.
The District apparently has adopted the
interpretation which requires the few est
minority teachen in schools which previ
ously had a predominantly Anglo faculty.
In 1983-84, there were 13 schools with one
Black teacher and 27 schools with one or no
Hispano teachen. After the large scale
administrative reassignment of teachen in
1974, the minimum ratios have been main
tained principally through assignm ent of
new teachen and voluntary teacher trans
fe n .
The plaintiffs contend that the correct
interpretation of the requirement is to use
a ratio o f all minority teachen to Anglo
teachen. Additionally, they urge that
fractions of leas than one-half should not
be disregarded and current year data
should be used. With tt»k interpretation,
the plaintiffs determined that for 1983-84,
there w en these deficits:
KlemmUry Middle
P-»---1jmOQi Deficit School
Facet 1 Henry
Newien 1 Baker
Cheltenham
11
Sabin 1
Westwood 1
Johnson 1
sol High School
Deficit School Deficit
2 Jefferson 4
1 Kennedy S
liMrUfi 1
West 2
1510 $09 FEDERAL SUPPLEMENT
In this particular dispute, the parties
have overlooked the language of the Tenth
Circuit Court of Appeals. Whatever ambi
guity may exist in paragraph 19A of the
district court's 1974 Decree, the appellate
court made it clear that it was affirming an
order which it construed as requiring that
the District "assign its personnel so that, in
each school, the ratio of minority teachers
and staff to Anglo teachers and staff shall
not be leas than 50% of the ratio of minori
ty to Anglo staff in the entire system.”
K ey*s, 521 F.2d at 484. There is no ambi
guity in that language, and it is the law of
the case, binding on this court as well as
the parties. Accordingly, the District’s
view is incorrect and the District has been
out of compliance with this requirement
during all of the intervening school yean.
Additionally, “rounding down” instead of
“rounding up” of fractions is not in compli
ance with the tenor of the Decree which
was to remedy, as much as possible, the
prior practice of assigning Black taache n
to Black schools as “role mods Is.”
The April 17, 1974 Order did not express
ly require the District to reduce minority to
Anglo teacher ratios in sack school below a
specified maximum; however, paragraph
19A provides that “principals, taachen,
tsachsr-aides and other sta ff who work di
rectly with children at a school shall be so
assigned that in no ease will tbs racial or
ethnic composition of a sta ff indicate that a
school is intended for minority students or
Anglo students."
The evidence presented dt the hearing
indicates that the D istrict has not had any
expressed policy o f lim iting the concentra
tion o f minority teachart in the minority
schools using spocM r guidelines such as
are sat out in the April, 1974 Order fur
schools with a high concentration of Anglo
teachers. On cross-examination Dr. Ststs-
ler, executive director o f personnel for the
school system from 1974 to 1962, testified
that the District never did establish any
guidelinesfor determining when a school
had too many minority teachers, stating
that it was “s matter of judgm ent”
Dr. Welch, the District’s expert witness
on teacher assignment and affirmative ac
tion at the hearing, testified that he did not
examine, and by implication was not asked
to examine, the extent to which the schools
with historic concentrations of minority
teachers, or formerly segregated minority
schools, still had minority teachers dispro
portionately represented or over-represent
ed.
As support for its assertion that the Dis
trict is unitary with regard to the assign
ment of school faculty, the defendants ar
gue, somewhat disingenuously, that in 1976
there were only 8 schools whose Black
faculty exceeded 20% and only one school
whose Hispano faculty exceeded 20%. It is
Dot clear why the District chose 20% as a
comparison figure. In 1976-77, the per
centage of Black teachers in the district
was 10.67% and the percentage of Hispano
teachers was 6.17%, so that the 20% figure
for minority teachers in s particular school
is significantly above the 1976 minority av
erages. However, using the same 20% fig
ure for later yean,"the District fails to
point out that the number of schools at
which the Black faculty equalled or exceed
ed 20% steadily increased so that in 1988-
84 there were 38 schools in which the Black
faculty equalled or exceeded 20% and 11
schools in which the Hispano faculty eq
ualled or exceeded 20%.
In 1976-77, th en w en no schools whose
Black or Hispano faculty was greater than
or equal to 80% of the total faculty. In
1968-84 th en were 8 schools whose Black
faculty m et or exceeded 80% and 5 schools
whose Hispano faculty exceeded 80%. It is
true that during this period the percentage
of minority taachen in the district in
creased. In 1968-84 the district-wide per
centage of Black taachen was still only
18.79%, and the Hispano percentage was
9.67%. Therefore, the 20% fig u n used by
the D istrict was nearly 1.5 tim es the dis
trict average for Black teachers, and twice
the D istrict aven g e for Hispano taach en .
The schools with a high percentage of
minority taachen a n , in large part, the
same Park HiD and core d ty schools identi-
1511KEYES t. SCHOOL DIST. NO. 1. DENVER, COLO.
d u n W F-lupp . 14*1 (D.C-Coio. I W I
fied by the Supreme Court in K eyes, 413
U3. at 192-193 nn. 3. 4, 93 S.Ct at 2689
nn. 3, 4. Seventy-five percent of the
schools listed below are north of Ninth
Avenue. Comparing the location of the
listed school with its percentage of minori-
Schools with not less than 20%
Black faculty in 1983-84 (% Black
faculty in district — 18.79%)
Amasse 36.0% -
Ford 86.0% -
Tsllsr 36.7%
Stsdman 86.0% *
McGlone 82.0% -
Ebert 80.8% «
Oakland 80.8% -
Wyman 80.0% «
Cols 29.2% «
Montclair 28.6%
Barrett 27.8% ‘
Smith 28.9% ‘
Whiteman 28.3%
Park Hill 26.9% ‘
Smiley 26.0% ‘
Swansea 28.8% *
Palmer 28.1%
MootbeBo 22.7% -
Columbine 22.7% »
Hallett 22.7% ‘
Harrington 22.7% *
Holm 22.2%
GOpin 22.2% #
Canon 22-2%
Mitchell 21.4% »
Grant 21.2%
McMeen 21.1%
Cowell 21.1%
Aabtuy 20.0%
Philips 20.0% *
Samuels 20.0%
Manual 20.0% »
‘ Park Hill schools
• Cote city schools
- New schools boQt is MontbeDo area since 1973.
Comparing the same variables for the
•ebook with an aaaigned allocation of An
glo faculty greater than 88% indicates that
many o f these schools, marked below with
a " + are located in extrem e south and
southw est Denver. 1
ty teachers and the minority residential
patterns in Denver, reflected in the census
data maps submitted by the District, it
appears that the concentration of minority
teachers in the schools is correlated to mi
nority residential patterns.*
Schools with not less than 20% His-
peso faculty in 1983-84 (% Hispano
faculty in district — 9.67%)
Bryant-Webeter 40.7% *
Fairmont 34.6% *
Crofton 33.3% *
Gilpin 33.3% #
Dei Pueblo 33.1%
Greenlee 29.4% #Columbian 25.0%Fairview 22.2% *
Smedley 21.7% »
Edison 21.4%Valdez 20.6%
•
Newton 88.74%
Force 89.74
Rtmmftoo 89.47%
T Jefferson 89.25% +
Cheltenham 88.89%
Sabin 88.89% +
Kenaady 88.76% +
Henry 88J7% 4-
1 It is to be remembered that there now are bilingual programs in effect at some schools as s consequence of this court's orders entered in
that phase of this litigatloct. The interaction of the language proficiency order and the desegregation requirements is discussed infra.
1512 *0* FEDERAL SUPPLEMENT
Using an upper limit of 50% above the
district average for Black and Hiapano
tsscheri, in 1983-84 there were 28 achoola
which exceeded that limit for Black teach-
er*’ “ d 21 achoola which exceeded that
limit for Hiapano teachera.
Dr. Charlea Willie, an expert witneaa
called by the plaintiffa, examined the cur
rent distribution of the Diatrict’a teachera
and determined that the Black teachera
within the Denver School Syatem were not
randomly diatributed in a way that would
be aimilar to their proportion in the total
diatrict Using a deployment criterion of
- ‘A of the Diatrict average for Black and
Hiapano teachera, Dr. Willie teetified that
in the 1983-84 achool year there were ap
proximately 35 achoola in Denver in which
the proportion of Black teachera wax great
er than Mi of the diatrict-wide percentage.
There were approximately 33 achoola, or
63% of the achoola in the diatrict, in which
the proportion of Black teachera waa a mall,
er than % of the diatrict-wide percentage.
Similar reauha were obtained for Hiapano
taaehera. Dr. Willie opined that the Den
ver School Syatem needa clearer and more
apedfic guidelinea becauae ita good faith
efforta have not enabled it to deploy ita
teachera to avoid racial identification of
achoola.
Dr. Willie also teetified that while he waa
a member o f the Compliance A ssistance
Panel, he recommended aeveral de
ployment guidelinee which the Diatrict
could uae. The Diatricfa initial response
waa that the court never ruled on the
fuideiinee for the hiring, retention and de
ployment o f teachera, and becauae the
court had never ruled on that iaaue, the
School Syatem waa not inclined to inatitute
aoeh requirement* voluntarily From the
totality o f the evidence, this court fad e
th atth e Diatrict haa tended to interpret the
Decree'* mandate for minimum percent-
agee o f minority taeehera aa the msTimnm
for achoola with large Anglo enro Omenta
and haa failed to place any w» ™ « i»ii mi.
nority percentage# for the achoola with
large minority pupil populatiooa. 110 eon-
ehiaion ia that there ie a sufficient reeidue
of segregation in faculty assignm ent* to
deny a finding that the Diatrict haa been
desegregated in that reaped.
H a rd sh ip T ra n s fe rs
Both in the 1982 and the 1984 evidentiary
hearings, the plaintiff*/intervenon have
asserted that the "hardship transfer" poli
cy haa functioned aa the equivalent of a
“voluntary transfer” program resulting in
reaegregative effecta on pupil assignments
The evidence on this point is somewhat
limited by the recordkeeping practice* of
the Diatrict While the application for a
hardship transfer, made by the parent* and
processed through the school of assign
m ent request* information concerning race
and the reason for the transfer, the effects
of the transfer on the transferor and trans
feree achoola are not reflected in the
record* kept in the school administration
office where this process ia completed.
The principal reasons for hardship trans
fer! are babysitting in the elementary
schools and work opportunities for etu-
denta in high school. Becauae a transfer
wfl] be given to the school nearest the
residence of the babysitter, and to a high
school closer to the work place, there ia an
obvious opportunity for manipulation by
the transferors. 'Dint opportunity haa pro
vided the basis for the suspicions asserted
by the plaintiffs who have pointed to
impact on schools such as Mitch# 1L
In response to interrogatories, the Dw-
triet provided data on the hardship trans
fers approved m the 1988-84 achool year by
race or ethnidty into and out of each
•cbooL With this information, the plain
tiffs’ expert w itness computed the net ef
fect of hardship transfers on the Anglo
percentage in each school. Tbs response to
plaintiffs’ interrogatories listed each school
with a count o f the transfers into the
school by race and the of the tnum-
feror school From this information, the
w itness calculated the total tra w fen into
and out o f a particular school by ethnidty
and combined these figures to obtain a net
change. H ie net effect oe the percentage
of Anglo students was computed by com-
paring the percentage of Anglos in s pertic-
1513KEYES v. SCHOOL DIST. NO. 1. DENVER. COLO.
CHi h W F J u p p . I « t l (D.CXoio. IMS)
ular school without any transfers to the
percent Anglo in the school with hardship
transfers. The net Anglo change does re
flect the overall effect on a particular
school but does not indicate whether the
change is due primarily to Anglo student
transfers in or minority student transfers
out.
The final results of this analysis show 17
elementary schools with an Anglo popula
tion which either increased or decreased by
more than 1.5 percentage points due to
hardship transfers, and 4 elementary
schools with an Anglo percentage which
changed by more than 8 points. There are
no middle or senior high schools with a net
Anglo change greater than 1.6 points.
While the defendants argue that in the
context of the entire school system these
changes are insignificant, a look at the
particular schools involved is instructive
and shows small scale effects which can be
considered significant in light of the histo
ry of this case.
The four elementary schools with great
er than a 8 point change in 1988-84 are
Barrett, -4.02, Crofton, -6.48, Mitchell,
-3.38, and BromweH, +4.72. In 1988-84,
all o f these schools were outside of the
accepted range for Anglo population. Bar
rett and Crofton would have been within
the range without the hardship transfers.
Since 1979-80, the percentage o f Anglo stu
dents at Bromwell, which is not a paired
school, has been steadily increasing and
has varied between + 7.8 and +18.5 per
centage points above tbs range. Sines
1988-84, Mitchell has been below the range
by at least 6 points. Barrett, Crofton and
Mitchell are formerly racially identifiable
schools in the Park HiD or core city area.
(In 1968, Barrett was 0.3% Anglo; Crofton
was 5.0% Anglo; Mitchell eras 0.8% Anglo;
and Bromwell, which is located in central
Denver, was 92.0% Anglo).
The middle and senior high schools arith
the greatest changes were Cole with a net
Anglo decrease of 1.86%, and Manual with
a net Anglo decrease of 1.86%. As a result
o f hardship transfers, there was a net in
crease of 22 Black and Hispano students at
Manual. Cole and Manual were the only
junior and senior high schools in 1968
which were over 95% Black. From 1974 to
1982, the percentage Anglo in both Cole
and Manual was between 50% and 60%. In
1982, the percentage Anglo in Cole de
creased to 35% and dropped to 34% in 1983-
84. The percentage Anglo at Manual re
mains at approximately 50%.
In commenting on the plaintiffs’ transfer
analysis, the defendants’ witness, Dr. Ross,
testified that in 1983-84, more minority
than Anglo students received hardship or
babysitting transfers, which indicates that
the District is not permitting such trans
fers to be used to svoid the desegregation
plan. In 1983-84, there were a total of
1674 transfers granted, including 679 An
glo students, 515 Hispano students and 400
Black students. There also were a few
transfers for Asian and Native American
students. Expressed as percentages, there
were 40.56% Anglo, 80.76% Hispano and
28.89% Black student transfers. These
percentages are nearly equal to the per
centages of the total student population for
these groups in 1988-84, which were
89.18% Anglo, 83.83% Hispano and 22.72%
Black. No conclusion can be drawn from
the aggregate distribution of student trans
fers among Anglos, Blacks and Hispanos.
The District also argues that the plain
tiffs' data do not show whether the trans
fe n which resulted in Anglo loos in the
identified schools had a positive effect on
the ethnic compoeition o f the sending
school A look at the individual data for
Bromwell shows that the students who
transferred into Bromwell were almost ex
clusively Anglo students. Thirty-one of
the 84 transfers into Bromwell ware Anglo
students, and 18 of the 81 students trans
ferred from the core d ty and Park Hill
schools—Crofton, Fairmont, Harrington,
Smedley, Smith, Stedman and W h ittier-
identified by the Supreme Court in JTeyaa
Bromwell may be atypical. There is no
other school with such a large net increase
in Anglo population due to transfers. Yet
the fact that the schools with the largest
net changes are the schools which have
1514 •09 FEDERAL SUPPLEMENT
historically been the racially identifiable
schools is some evidence that for those
schools the hardship transfer may have
been used to avoid the desegregation plan.
The District has done the minimum re
quired in keeping records and maintaining
the policy that it would refuse s transfer if
the express reason given was “race.” The
District has failed to monitor the system-
wide effect of the transfers, leaving the
decision to the principal of the receiving
school. In fa ct prior to the 1982 hearing,
no record of ethnicity was kept in the cen
tral card filing system . The plaintiffs’
analysis o f 1983-84 transfer data appears
to be the first such system-wide analysis,
and it does reveal that the effects of trans
fers in certain schools are significant and
are contributing to the racial identification
of those schools. In addition, the schools
affected are some of the schools initially at
issue in this law suit
While the resulting finding is that the
plaintiffs’ data will not support the argu
ment that the District has maintained an
"open enrollment” policy through hardship
transfers, the evidence shows a lack of
concern about the possibility of misuse and
a lack of monitoring o f the effects of the
policy.
<n>ere has been no challenge to the man
ner in which the D istrict has applied the
facilities and physical resources, and there
is no contention that there 1ms bean any
racial disadvantage operating in the cztrs-
curricular activities in the d istrict
THE FUTURE
[4] The District seeks an order that not
only would declare the school system uni-
tary, but would vaerte the permanent in
junction entered in this action and end tha
court's jurisdiction over the matter. H m
law in the Tenth Circu it is the* a district
court m ust retain jurisdiction in these tir-
cum staness until it is convinced tlmt there
is no reasonable expectation that constitu
tional violations win recur.
Wo believe that the court, in exercising
continuing jurisdiction to achieve struc
tural reform, cannot terminate its juris
diction until it has eliminated the consti
tutional violation "root and branch." See
Green v. County School Board, 391 U S
430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).
The court must exercise supervisory
power over the matter until it can say
with aasurance that the unconstitutional
practices have been discontinued and
that there is no reasonable expectation
that unconstitutional practices will recur.
Battle v. Anderson, 708 F.2d 1523, 1588
(10th Cir.1983), cert dismissed — U S
------, 104 S.C t 1019, 79 LEd.2d 248 (1984)
(footnote omitted). The opinion in Battle
cited Green as precedent in bolding »h>»
the district court had not abused its discre
tion in retaining jurisdiction over Oklahoma
state prisons although the constitutional
violations had been eliminated.
Accepting the defendants’ argument th»*
the modified 1974 Final Judgment and De
cree was s complete and adequate remedy
which the District has fuDy implemented,
jurisdiction should continue the
record does not support a finding *>«•*
there is adequate protection against rsaeg-
regation. To the contrary, the court m
compelled to conclude that rseegregation is
inevitable if the School Board follows state
law.
Resolution No. 2228, modeled after the
resolution in Spangler, reaffirm s the com
mitment o f the Board o f Education to the
operation of a unitary school system . Nei
ther the resolution, nor the testim ony of
the individual members o f the Board of
Education, gives any indication of how that
will be accomplished in the w of con
tinued "forced busing,” so long as the
neighborhood school concept is preferred
and the neighborhoods are not integrated.
But, as the plaintxffi have observed in their
brief, the Constitution o f the atvtv of Cokh
redo expressly prohibits the use o f such
busing in the following language of the
"anti-busing” amendment, adopted in 1974:
No sectarian tenets or * *«*»>— «K«n
ever be taught m the public school, nor
shall any distinction or rlssstfiritinn of
pupils be made on account o f n e e or
color, nor shall any pupil be assigned
1515KEYES v. SCHOOL DIST. NO. 1. DENVER, COLO.
C lu aa SO* F S upp . 14*1 (D C.Coio IMS)
or transported to any public education
al institution for the purpose o f achiev
ing racial balance.
Colo. Const. Art. IX, $ 8 (emphasis added).
That is the organic law of the State of
Colorado, and it ia directly in conflict with
the pupil assignment plan now in effect in
the Denver School system . If the court’s
jurisdiction is removed it must be presumed
that the members of the Board of Edu
cation, under the oath required of them by
state law, will obey this requirement of the
state constitution, and dismantle the entire
pupil assignm ent plan. To this argument,
the District has made no response in the
reply brief. 11118 constitutional provision,
standing alone, makes this case far differ
ent from the Spangler decision upon which
the District so heavily relies. Putting the
point simply and directly, it is the authority
of this court, under the supremacy clause
of the United States Constitution, that per
mits the operation o f the Denver public
schools under the existing plan which
would otherwise be a clear violation of the
Colorado Constitution and in the absence of
that plan, the system would be dual.
Above and beyond this legal impediment
to maintaining a unitary school system ,
there is nothing before the court to give
any assurance that the Board of Education
will not permit reaegregation to occur as a
result o f benign neglect. The District has
done nothing to establish any rntans for
monitoring operations to assure the avoid
ance of racial disadvantage. There ■ no
clear commitment to the use of the guide
lines prepared by the Ad Hoc Committee
and adopted by the Board. In this regard,
the court has some concern about the de
fendants’ response to the contentions made
in the intarvenors’ brief. Essentially, that
response is that these are matters which
are outside of this litigation. Yet these
concerns about the effects o f discriminate-
*• Disparate impact and disparate treatment arc alternative theories for relief m*W Title VTL 42 U-S-C. H 2000e-2000e-17. -While proof of dis
criminatory motive is necessary under a disparate treatment theory, such proof is not required under a disparate impact theory. (Citation omitted) For the latter, it is enough that the
ry attitudes on academic achievement, dis
cipline and dropouts are the very core of
the whole matter of segregative policy in
education as a violation of the United
States Constitution. It is true that there is
nothing in the law which does or could
require equality in the results of education
al services. But, since the sociologists tell
us that sanctioned discrimination has these
adverse effects on the individuals within
the affected groups, the existence of dis
parate results suggests the possibility that
continued discriminatory practices are
present. It was to address these matters
that the court offered the services of the
members of the Compliance Assistance
Panel. There is cause for concern about
commitment when the Board and adminis
trative sta ff seem to have not only reject
ed, but scorned such an effort at assistance
in a difficult task.
In the defendants’ briefs, much is " f i t
of the argument that findings in this «-»vt
based on broad constitutional principles
rather than narrow statutes. That is true
in a technical legal sense. Yet, as the
courts have considered cases under the civil
rights acts, both those adopted shortly af
ter the approval o f the Fourteenth Amend
ment to the United States Constitution, and
those of more recent vintage, it is increas
ingly apparent that Congress has sought to
assist in making the principle o f equal pro
tection of the laws a more practical and
workable doctrine by giving it more specif
ic definition in such areas as employment,
voting and participation in ppbliely funded
programs. Thus there is an observable
convergence of constitutional principle and
statutory prohibition. It may weD be that
in future school desegregation litigation,
the concepts of “disparate treatment” and
“disparate impact," so well known in em
ployment cases, will come to be the focus
of attention.*
employment practices had a discriminatory ef
fect.' (Emphasis ia original). WUHems v. Colo
rado Springs, Colorado School District No It,
641 TM 833, 139 (10th Clr.lMl). Sot oho
Sogmr v. Smith. 738 FJd 1249 (D.CClr.l9i4),
denied. — VS. -----, 105 S.CI. 2357. 86
LEdJd 258 (1983): Gey v. Waiters' end Dairy
1516 609 FEDERAL SUPPLEMENT
It is paradoxical that the defendants’ pre
sentation to this court in support of the
subject motion has placed such heavy em
phasis on the use of statistical displays to
demonstrate the establishment of a unitary
system when the thrust of the Spangler
decision is to decry the rigidity of defining
desegregation according to any fixed racial
ratio. Both in 1979 and in 1982, this court
emphasized the importance of recognizing
that establishing and maintaining a unitary
school system requires more than meeting
a statistically satisfactory pupil assignment
plan. The expert testimony in this case
concerning the use of racial balance and
racial contact indices, and the differing con
clusions reached by the experts called by
the respective parties, demonstrate once
again the facility with which numerical
data may be manipulated and discriminato
ry policies may be masked.
The plaintiffs/intervenor* have strongly
suggested that the Board of Education act
ed in bad faith in adopting Resolution No.
.2228 in December, 1988 after giving this
court and the parties assurance in a bear
ing memorandum filed April 15, 1968, that
the D istrict was following the Ad Hoc Com
mittee guidelines in planning for pupQ as
signm ents for 1984 and subsequent years.
The plaintiffs also cite the testimony of
School Board members from the trial that
after the May, 1968 School Board election,
Board members determined that there
would be no changes in the plan.
The issue o f good or bad faith of those
Board members is irrelevant As the histo
ry of this case* has shown, the philosophical
and political views a f the elected Board sril]
vary as is to be rrpsctiri in representative
governm ent Indeed, remembering that
tins case began when a Board resolution
was repealed by a succeeding Board, little
rebaace can be placed upon Resolution No.
2228, or any other resolution, as directing
future boards. What m ust be accom
plished in constructing the final and ulti
mate permanent injunction in this ease is
the creation of means and mechanisms to
prevent any future policy of discrimination,
Uatckmen't Union. Local No. MX 694 F_2d S31
whether it results from intentional govern
mental action or simply in consequence of a
policy of disregard or permissive passivity.
The District has made a very expansive
interpretation of the Supreme Court’s
Spangler opinion. The contention is that
once a district has implemented an ade
quate desegregation plan and has main
tained it for a reasonable period of time, it
is entitled to be freed from further court
jurisdiction even if resegregation occurs in
the sense that schools become racially iden
tifiable, if that result obtains from “demo
graphic changes” and not because of offi
cial board action. The point is emphasized
because under Swann there is no right to a
particular degree of racial balance in each
school. The fundamental error made by
the district court in Spangler was the im
position of the rigid requirement that there
be “no majority of any minority” in any
school in perpetuity. The language of the
majority opinion in Spangler can be read to
eupport the defendants' contention. Yet,
Spangler must be read in context with
Green and Swann, as well as the language
in the later cases of Dayton II and Colum
bia Board of Education v. Penick, 448
U B. 449, 99 S.C t 2941, 61 LJkL2d 666
(1979). As the defendants’ counsel have
noted, the Supreme Court has not clearly
articulated the time and manner within
which a school desegregation ease should
be dosed. Additionally, the Court has nev
er defined “unitary.** In this case, the
School Board itself has been cooperative
with the court in constructing a working
definition of that concept by the adoption
of the Ad Hoc Committee report and its
guidelines, which this court approved in the
1982 opinion, and which the Board has
again recognised in Resolution No. 2228.
What is of first importance in consider-
ing whether Spangler requires this court
to terminate this case at this time is wheth
er the Denver Public School System was
unitary for the years 1976 through 1979.
That, in turn, depends upon whether it is
appropriate to parse the criteria in Green,
and this court’s own definition of unitari-
(9th Or. 1962).
— ~| ■ ■ «wc uui
from the other element*.
d « ^ L ^ “ UPe, 0 f . th* of any***re*atK>n plan u it. effectiveness, u
wou d be inappropriate to consider that a
pupil assignment plan which .jmni “ ***
li»hes certain ouuidT
minority and Anglo s c e n t s £
“ . effective elimination of the effects of
Pnor segregative policies. That b '
fL- «^*K»tion. In this cim it
Z t Z r .t I T - p t “ » '
Beyond that, it i . this court’s view t w
* Dayton / / and Columlnu strongly
h w ! * 1 * m° Pe limite<1 reading of the Dr J
hibitjon in Spangler. Thus, Justice White
^ ^ l ^ . Pr0PO,itiOn fP°m tj* t
^ ' “ >“ t? ctlon and abandonment prac-
* * * c*anot be used to perpetuate or r Z l
“ l i t e W h S " ' ' » * ■ » < «’ Ju*t,c* White. »««in writing for the
majonty. said that pupfl a o ^ n t PJ £
are also not to be used to w n e f ,, .; .
reestablish dual school system s. °T
to *>"• to™ elementary
*** ch*n« e o f educational p S
cy to co n v m t junior high school, to
£"**■*. brought **" D**™* back*
this court m 1982. Those change, o f
» u ree . required a redeterm inabon^f’ the
P f i . p ta . tod Urn ^
in the Consensus Plan. JWa______ ..
B y ! £ p ^ ‘ n̂
f l i iIl9atntioa o f the white
flight phenomenon after s court order rw»T
aigna attendance sonea. Tha court m not
**“ P eW itio o has been
by the evidence. Am m rim
^ ^ •PP*1’ *<> be flaw, in thT2 lS
F U r * ? aubmitted on the subject
f l i g h t ^ fK̂ h t But> white
“ '"'"unity response to s <W g-
P “ “ elem*nt » meas^g
U effectJvene« Indeed, that was the res*
1517" S S r i ? L Na *• DENVE^ COLO._____ “ *0 * F -S -P P ISS1 (D.CColo IM S)
E T Z Z L " * - * — * son ^ t Judge Doyle sppomted the Co
munity Educsbon ( L n c ^ a J J * ,
committee to help the School Board obuin
anTwertStmCCePUn“ ' h therefo«. no
^ ^ a r s T " * ■ " " « * •
conL^^k0 “ “appropriate response to contend that this resegregabve effLt can-
^ considered because the 1989 #*•*;
•ppr « iu,.c ^ r p t o
S p S S S ^ I " d “ "* “ • ^ of
While it is true that this haa not been .
^ b“ n an effort to
P step at a tune planning ” it is slan
T “»> “o o th . b T ! ? ! l ‘ ' . ! j"
an parses and the court were working with
prem ia that long-range p l a S ^
required, and that some fm«i - ***
-o-h
- " * f « M 5m at the District had not become unitary.
„ “ cJeM ^ m the testimony of the
^ “ olB oard members that the idea that
had b e « achieved
S Z V iL Z Z L ? ‘ with e w
t» e m statistical analysis. The data devel-
f J L ^ ! 4 8tUdy P « “ ded the Board
S l Z E T * * * °ecurPKl when mea-
? ? t* k ac* and racial con-
caet indicw. The argument that d esem -
S r iu ” “ tb*Pe,0Pe danxmatrated is j l l f ^
o f the district court in
The testimony of tbs Board member,
also makss it clear that their nv*>«.
•w iring » termination order ■ t fT S e e r e
^ f ^ a t the school syrtem wiD benefit by
R o v in g a sb g m .” that they babero h j
attached to it from the court's involvement
court for approval has mh&ited o m o «
Panning and new educational developm ent
While that may be the perception o f many
there is no support for it in the record of
1518 M* FEDERAL SUPPLEMENT
thi« court’* involvement. In 1979, the
Board wi* encouraged to puraue new ini-
tiativ**. The Knight Fundamental School
and Gilpin Extended Day School have re
ceived the court’* approval and the commu
nity responae ha* been enthuiiaitic a* thi*
record show*. There has never been any
effort to suppress new and innovative de
velopments, and this court has never
•ought to impose any educational policy.
Indeed, in rejecting the request to choose
between the Total Access Plan and the
student assignment plan, the court again
took pains to point out the differing roles
»nd responsibilities of the Board of Edu
cation and this court.
It is disturbing to hear the views that
stigm a, punishment and trauma are in
volved in the processes of this court in this
ease. It is true that the case has been here
for almost a decade, but it is also true that
the effort haa been to reverse the effects
o f segregative actions for a similar time.
*n>e notion that this court has sought to
punish this Board of Education, this sta ff
»ad the children now in the Denver School
System , for past practices is simply wrong.
What the court seeks, and what the Consti
tution demands, is assurance that minority
people will not be disadvantaged in the
opportunity for education. Thus, it h not
punishment, but protection, that a the ob
jective.
Tha court has carefully considered B sso
lution No. 2288. That resolution, adopted
in April, 1984, after the riling o f the subject
motion, is a declaration o f policies which
the Board intends to follow upon tsrmi-
nation o f additional supervision. a»»«««g
those policies is the statem ent that “these
shall be no sudden alteration of the couri-
approved school assignm ent plan then in
sffs tti It is this which is
directly contradictory to the prohibitions of
the State Constitution and, as aar-
lier, the reply brief filed for the School
Board did not even address thk legal dOem-
The resolution also indicates the
Board's continuing interest in neighbor-
hood schools with the following paragraph:
The Board of Education, believing that
the beneficial effect* of integration sre
most fully realized in stably integrated
neighborhood schools, shall preserve con
tiguous attendance zones for schools that
are integrated and shall eatabliah contig
uous attendance zones whenever it ap-
Pe*r* that stable integration can be
maintained in the school* serving such
areas.
What ia not indicated is whether the
Board would proceed if the establishment
of contiguous attendance zone* to serve
"stably integrated neighborhood achoola”
haa a reaegregative affect on other schools,
as measured by pupil assignm ent ratios.’
Other aspects of Resolution No. ram ware
discussed in the testimony of Board mem
bers, and s fair summation of that testimo
ny is that many matters would have to be
studied before detailed implementation of
of the paragraphs of the Resolution
could be achieved.
It is also intereating to consider the
***** of paragraph 2 of the Resolution:
Thin Board, the District, and offieera
and employees of the District shall not
adopt any policy or program, institute
any practice or procedure, or or
c y r y out any decision for the purpose of
discriminating against any person by rea-
aon of race, color, or ethnic identification.
The paragraph can be considered a state-
msnt of intention to avoid acta taken with
discriminatory in tent It doss not
that the Board, the D istrict and Ha officers
and employees will take any action to avoid
any discriminatory impact o f any policy or
Pr°C '*at In the testim ony of
Board mem b en , th en ia, again, the coat-
plaint that the necessary planning and poli
cy development suggested in the Resolu
tion could not take place under court auper-
rision. Again, the record in thk case » to
the contrary. In the 1979 Order, thk court
u p m a ly encouraged innovative and erea-
tive thinking by the Board, and t
willingness to considar changes. Indeed,
the 1962 Order did approve the change to
Biddle achoola even though t w
had what the court hoped would be a teat-
K£YDS t. SCHOOL DIHT. NO. l, u ? cm w vuw .
Q u M «M F J u f r . 14*1 (D-CXafa. IW )
porary resegregative effect on the elemen
tary school*. Put *imply, there i* nothing
in Resolution No. 2233 that the Board could
not accomplish while still under the super
vision of the court, and certainly nothing
that could not be accomplished with s per
manent injunctive order in effect
The Board’s brief adopts language from
the Ninth Circuit in S p a n g le r v. P a ssa d e n a
C ity B o a rd o f E d u c a tio n , 611 F.2d 1239 at
1240 (1979), to ask this court to address the
basic question at this stage in this case:
"If not now, and on this showing, when,
and on what showing?” Because the court
has answered the first part of that ques
tion in the negative, it is appropriate to
give some guidance with respect to what
this court believes the proper showing
would be, although this discussion must be
prefaced with the caveat that trial courts
do not give advisory opinions. The adver
sary process must be permitted to function
in the remaining stages of this litigation.
[5] The Denver Board of Education has
obviously been advised that the controlling
law on terminating jurisdiction in a school
desegregation case is that Ninth Circuit
Spangler opinion which followed the Su
preme Court’s opinion. That case was de
cided by a three judge panel with two sepa
rate opinions and one judge concurring in
both of them. Without question, both the
Supreme Court opinion and the subsequent
Ninth Circuit opinion make it elsar that
there can be no permanent injunction re
quiring a district to maintain any given
degree of desegregation as measured by
racial ratios in the schools. 1111* court
certainly agrees and has made the same
statem ent in both the 1979 and 1962 opin
ions. Moreover, this court has no disagree
ment with the view that school desegrega
tion cases Uke all other litigation must
someday come to an end. In the 1982
opinion, this court urged the D istrict to
proceed with planning for the purpose of
developing a final order which could bring
this ease to conclusion, and said the follow-
mg-
The Denver Board of Education contin
ued its positive response in May, 1980,
when it adopted Resolution No. 2110, es
tablishing an "Ad Hoc Committee” to
design s new student assignment plan
and to develop both s definition of and
guidelines for constructing s unitary
school system. During subsequent hear
ings, I encouraged that undertaking and
said that it was consistent with an order
ly approach to creating the conditions
and climate for concluding this litigation.
K eyet, 540 F.Supp. at 401.
This court has always recognized that
the operations of a public school system,
and the determination of the types and
amount of educational services to be pro
vided in it, are fundamentally matters of
local self-governance. What the history of
this case shows, however, is that each time
the Denver Board of Education has been
given the full opportunity to develop a pu
pil assignment plan which would avoid the
racial identification of any schools, the
Board has failed to perform that duty.
The reason is self-evident The total re
turn to neighborhood schools throughout
the system under the residential patterns
which have existed and now exist would
inevitably result in the resegregation of
some schools, particularly at the elementa
ry level. Therefore, it is not possible to
avoid forced busing of part of the pupil
population, and because overwhelming pub
lic opinion in Denver is against forced bus
ing, elected officials have refused to take
responsibility for ordering i t It is political
ly convenient to continue to contend that
this contradiction of community will is the
result o f orders from a court which has
misconstrued the law. The length of this
opinion is warranted only for the purpose
of once again making a full explanation of
this court's reasoning. While the court has
been patient in the continuing efforts to
persuade the parties and the public with
respect to the law, it has also repeatedly
expressed concern that young people are
being disadvantaged in the one opportunity
given to them to obtain some level o f edu
cational achievement at public expense.
This court is now asked to rely on the
good intentions expressed in Resolution
I
1520 609 FEDERAL SUPPLEMENT
No. 2288. In the S p a n g le r opinion, the
Ninth Circuit judge* correctly it*ted that
when such resolution* are made as official
acta, they are entitled to be viewed as a
pledge made in good faith by the board
members and the people they represent.
The court does not doubt the good faith of
members of the Board of Education and
their intention to follow the law. The
doubt is with respect to their under
standing of the law. That doubt is fueled
by the testimony of some Board members
who said that since people are and should
be free to live in any neighborhood they
choose, segregation in neighborhood
schools is acceptable.7 That view is direct
ly contrary to the Brown decision and
would be a return to Plessy v. Ferguson.
Along with the assumption that the
Board members will obey the law as they
know it, the court must assume that these
Board members sril] comply with the re
quirement of the Colorado Constitution
that prohibit* forced busing. How can this
court assume that-ensal educational oppor
tunity will be given to minority students in
Denver, Colorado when the Board of Edu
cation officially proclaims a commitment to
neighborhood schools while there are still
segregated neighborhoods, and whan the
effective means for integration wiD be de
nied them under the organic law of the
State o f Colorado?
Resolution No. 2228 and the testim ony of
Board members have given vague allusions
to increasing the use of magnet schools,
voluntary enrollment with spen al pro
grams. It is that kind o f speculation whieh
caused the refaction o f the Total Access
Plan which whs presented to the court with
so provision for the land o f constraints
requited to protect against segregative ef
fects. It may well be that through their
creativity and industry, the Board and sta ff
wd] develop plans and programs which can
avoid segregative effeeta, m eet the require
ments o f a unitary system under the
court's definition, and avoid conflicts with
the Colorado Constitution. Such a showing
with appropriate injunctive orders to aa-
7. Totimony of Board member Paul Sandoval.
sure continued effectiveness can certainly
result in an order which could terminate
this case. Nothing of the kind is in the
present record.
The demonstrated uncertainty about the
requirements of the law in this case is
exactly the reason that a final injunctive
order is required to end i t As all counsel
in this case and as many lower courts have
observed, the Supreme Court has never
defined a unitary school system with any
specificity. That is not the function o f the
Supreme Court of the United States. It
exists to give general guidance on broad
principles of constitutional law, and it a the
work of the district courts, as trial courts,
to apply those principles to the specific
situation with specific orders. That was
made clear m Brown a Board of Edu
cation, 349 U.S. 294, 75 S.Ct 758, 99 LEd.
1088 (1955) {Brown II), and it is also elaar
from opinions in the Fifth Circuit Court of
Appeals, a court which has been called
upon to attempt to articulate the bases
upon which school desegregation eases can
be ended.
In testing whether the past bee bean
eradicated so far aa it remama ia tbs
power of school officials and marts ts do
so, we must keep in mind that sneh
school district is unique. Tbs constitu
tional -»«**♦*»* against racial dtacrioiina-
tion is eatsgorie, but the detannfaatioa of
remediea for its past violation tan a on
the fffiKjibw a in a iurtf*"***' district.
[Citation omitted.] In like fashion, the
decision that public officials have satis
fied their responsibility to sredteats seg
regation and its vestiges must be baaed
on conditions in the district, tbs seeom-
pbahments to date, and the feeaibitity of
furtber measures.
Rom 9. Houston Indspendsnt School
D ist, 899 F id 218, 227 (6th Ctr.1988).
The Fifth Circuit Court of Appeals re
quires a district court to retain junsdiAon
over a school desegregation aetioc **
three years following the determination
that the district is unitary to assure that
Tr. 913-916.
1521KEYES v. SCHOOL DIST. NO. 1. DENVER. COLO.
Cli* u tot F̂ tjpp. 14*1 (D.C.Colo. ItU)
the determination of unitary status is not
premature. During that time, the district
is required to file semiannual reports with
the court. At the end of the three years, a
hearing is held at which the plaintiffs may
show cause why the case should not be
dismissed. The district court then makes a
final determination as to whether the dis
trict has achieved unitary status and may,
at that time, dismiss the case. Ross, su
pra; United States v. Texas, 509 F.2d 192
(5th Cir.1975); Youngblood v. Board o f
Public Instruction o f Bay County, 448
F.2d 770 (5th Cir.1971).
If the present Board members who have
been in this court and who have some
working knowledge of the issues in this
case are confused about what is required of
them, certainly it can be expected that fu
ture Board members will fail to understand
how particular decisions concerning school
construction, school closing, faculty assign
ments, transportation, facilities and extra
curricular activities could have segregative
effects because of the past policy in this
particular district. Again, the court hopes
that the recapitulation of the history of the
case contained in this lengthy opinion will,
itself, be of some value to decision makers
in the future.
Contrary to the perception shown in the
defendants' reply brief, the proposed per
manent injunction is not criminal in its na
ture and need not, therefore, be as specific
as may be indicated in some of the cases
cited. The injunction is equitable and
seeks to protect the constitutional rights of
persons yet unborn. It need not require
particular ratios of pupil assignments to
various schools, percentages of faculty eth
nicity in schools, specific affirmative action
hiring plans, or even any commitment to
transportation. It is not required that
there be any firm commitment to neighbor
hood schools, magnet programs or other
matters of educational policy. What will
be required is the development of a struc
ture within which these decisions will be
made by local government which will pro
vide assurance that those who make such
decisions will obtain necessary information,
give an adequate opportunity for minority
views to be heard, and act with concern for
and commitment to the constitutional prin
ciples of equal educational opportunity. In
this respect, what the court is requiring is
something not unlike the stop, look and
listen requirements of environmental policy
legislation.
This court has implied and now makes
explicit the view that the Ad Hoc Commit
tee guidelines are a good working frame
work within which that kind of structure
can and should be developed.
The plaintiffs have asked for a general
injunctive order with certain provisions re
stricting some of the policies of the Dis
tric t They also seek certain immediate
remedial orders.
During the period established for the
briefing schedule at the conclusion of the
evidentiary hearing on the subject motion,
this court was informed by counsel that
they were engaged in serious negotiations
for settlement of this case. The briefing
schedule was altered to accommodate that
e ffo rt It now appears appropriate, having
determined that the District has not yet
achieved a completely unitary status for
the reasons set forth at length above, and
the court having defined what is necessary,
including the general outline of a perma
nent injunction, that the court should pro
vide a new opportunity for the parties to
come together to develop an agreed order.
It is hoped that negotiations will go for
ward and agreement will be reached just as
the limited English proficiency issues were
resolved after the entry of the court's
Memorandum Opinion defining the applica
ble principles of law. In that regard, in
accepting the stipulated program for limit
ed English proficient students by the Order
entered August 17, 1984, this court re
served for later decision the determination
of methods for reporting on the implemen
tation of that program and the question of
continuing jurisdiction. That reservation
was made to avoid any prejudging of the
m atter which is now being resolved by this
opinion. Accordingly, a t this time both
phases of this case converge, and the moni-
1522 609 FEDERAL SUPPLEMENT
toring of the language program and con
tinuing jurisdiction with respect to it will
also be matters to be discussed in the nego
tiations which will be undertaken.
Recognizing that a recent election has
been held and that there may be some
uncertainty about how negotiations may be
conducted and to what extent counsel will
be authorized to proceed with them, it
would be unrealistic to set a specific tim e
table for that effort. Accordingly, the
court will direct that counsel meet with the
court to discuss the scope and course of
negotiations.
Upon the foregoing, it is
[6] ORDERED, that the defendants’
motion to declare School District No. 1
unitary, to terminate jurisdiction, and to
vacate’ or modify the 1974 Final Decree and
Injunction is denied, and it is
FURTHER ORDERED, that counsel for
all parties shall meet with the court in the
court's conference room for a discussion of
the possibilities of negotiation and settle
ment on June 28, 1985 at 1:00 p.m.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. C-1499
O C T 2 9 1 9 8 5
. . /% *»,
SCHOOL DISTRICT NO. 1, et al.,
Defendants.
ORDER FOR FURTHER PROCEEDINGS
On January 19, 1984, the defendant. School District No. 1, Denver,
Colorado, filed a motion for orders (1) declaring that the defendant School
District is unitary, (2) modifying and dissolving the injunction as it relates to
the assignment of students to schools, and (3) declaring that the remedy
previously ordered in this case to correct the Constitutional violation as found
has been implemented, and that there is no need for continuing court
jurisdiction in this matter. The plaintiffs and plaintiff-intervenors opposed that
motion, and asserted their own motion for remedial orders and continuing
injunctive relief. After a full evidentiary hearing was held, this court made
extensive findings of fact and conclusions of law in the form of a Memorandum
Opinion and Order entered June 3, 1985.
In summary, this court found that the 1974 Final Judgment and Decree, as
modified in 1976, did not completely remedy the constitutional violations found
in the course of this litigation because it did not completely reverse and
eradicate the effects of the official policy of geographical containment of
black people in an area of northeast Denver. This court also found that the
defendant School District had not achieved unitary status because there were
racially identifiable schools; the policies relating to "hardship" transfers and the
monitoring thereof were inadequate to assure that there were no segregative
effects at either the transferee or the transferor schools; there was a failure
to comply with paragraph 19A of the 1974 Decree relating to the assignment of
minority faculty, and with regard to the over-representation of minority faculty
in formerly segregated minority schools with under-representation in formerly
segregated anglo schools; and, finally, the School District had failed to take
any meaningful action to provide any reasonable expectation that constitutional
violations will not recur in the future after this case is closed.
After making these findings and conclusions, this court did not order any
corrective action and urged the parties to seek a negotiated settlement of the
remaining issues. That effort has continued and, on October 4, 1985, counsel
for the parties advised the court that they had failed to reach a resolution
acceptable to all parties. Accordingly, this court must now act. Because
compliance with the law as interpreted in this litigation involves determinations
of educational policy within the sole authority of the Board of Education, the
defendant Board should now be required to submit plans-for achieving unitary
status as that has been defined in this court's Memorandum Opinion and Order
of May 12, 1982 (540 F.Supp. 399), and to provide reasonable assurance that
future Board policies and practices will not cause resegregation. The particular
matters to be addressed are as follows:
The identification of Barrett, Harrington and Mitchell elementary
schools as schools for minority children.
The construction of Barrett Elementary School in 1960 in a black
neighborhood was one of the most obvious indications of the former policy of
racial segregation in the Denver school system. Throughout this entire
litigation it has remained a racially-identifiable school, and the adoption of the
Consensus Plan had further segregative effects at that school. Mitchell
Elementary School has also existed as an identifiable minority school throughout
the years, and it, too, has been adversely affected by the Consensus Plan, as
has Harrington School. The trend toward racial isolation of these three schools
was one of the plaintiffs' and intervenors' objections to the Consensus Plan and
a primary reason for the reluctance with which this court accepted that plan
as an interim pupil assignment plan. It is past time to integrate these three
elementary schools into the Denver system.
-2-
2. The "hardship" transfer policy.
While this court did not find that the hardship transfer policy amounted
to an "open enrollment" program as contended by the plaintiffs and intervenors;
there is sufficient continuing doubt and suspicion about this program that the
District should take action to articulate definite standards for such transfers,
and to monitor the program to assure that these transfers do not have
segregative effects on either the transferor or transferee schools.
3. Faculty assignments.
The District has never been in compliance with the requirements of the
1974 Final Judgment and Decree relating to faculty assignments. The ambiguity
in paragraph 19A of that decree has now been resolved, and some reassignment
of faculty is necessary. Additionally, this court has found that there has been
a continuing failure to limit concentration of minority teachers in schools
correlated to minority residential patterns. Some additional teacher deployment
guidelines must be established to avoid any public perception that minority
teachers should be assigned primarily to schools with heavy minority pupil
populations.
4. Plans for implementation of Resolution No. 2233.
The defendant Board of Education has asked this court to rely on the
good intentions expressed in Resolution No. 2233 and return full responsibility
for the protection against future resegregation to those who are elected to
govern the District. In the June 3, 1985 Memorandum Opinion and Order, this
court observed that the defendants did not put forth any detailed plans for
implementing Resolution No. 2233 and, most particularly, the Board of Education
and its counsel failed to explain to this court how a non-segregative pupil
assignment plan could be followed without a court order when any such plan
would be in violation of the "anti-busing” amendment to the Colorado
Constitution, adopted in 1974 and incorporated in Article IX, Section 8 of the
Colorado Constitution.
Upon the foregoing, it is now
ORDERED that on or before December 2, 1985, the defendants will file
with this court plans which address the foregoing matters, and the plaintiffs
and plaintiff-intervenors shall have to and including December 16, 1985 within
-3-
which to file objections to or to file alternative plans on such matters, and the
disagreements among the parties will be the subject of further hearings in this
court.
Dated: October 3 , ^ . 1985
BY THE COURT:
- 4 -
1536 •M FEDERAL SUPPLEMENT
f«ctive; and (2) whether “A Broadway
Baby" would have been produced on Broed-
▼otring mandatory aaaignment or transpor
tation of students.
Ordered accordingly.way absent CBS’s alleged failure to per
form.
^ Dr the feaaoos outlined shore, pkin-
t if f s motion for summary judgment is de
nied.
SO ORDERED.
Wilfrad K ITES, at aL, Plaintiffs,
Ceacraas a t Hispa nic Educators, at aL,
Plaintiffs Tatarr—on.
Ve
•CHOOL DISTRICT NO. 1. at
AL, Defendants.
C3t. A. No. C-14M.
(Jatod States D istrict Court,
D. Colorado
Fab. *6, 1187.
Sebool district subject to integration
o n to rnoead t o order declaring school dis
trict tob eu artary , modifying and dhsolv-
iag erhring injunction rotating to aaaign-
inoBt o f pupfla to school and order dedar-
mg th at cm rt's remedial orders had been
faDy N p h u n ta d , whieii was denied
P « tto w a n ordered to submit plana t o
■rhiariag unitary stat i . Ifce District
Coart. Matoefa. J„ held th a t (1) despite
•ehool district's failure to achieve unitary
•tatas, school district's atocare, strenuous
t f t o t to meat requirement o f deaegrega-
tioo order warranted reduction o f dietrict
court's control in operation of school dk-
triet, and (2) in view o f proscrip tioo against
student transportation to achieve racial bal
ance contented in Colorado Constitution,
permanent injunctive order by district
court was nectesary to allow school dktnct
to implement student assignm ent plan m-
I. Schools ^ 1 K 1 6 )
Despite school district's failure to
sd u cTc unitary status, school d ktriefs sin
cere strenuous efforts to meet require
ments o f desegregation order, and its adop
tion of pobey not to allow race, color or
•thnidty to impede obtaining benefits of
fered by school district, warranted reduc
tion o f district court's control to operation
of school dietrict so as to allow board and
administration' sufficient freedom to
adaptations to enhance effectiveness of
oew programs and to accommodate
changed draxm stences.
2. Schools
In view efproocriptioo against student
transportation to achieve racial
contained m Colorado Constitution, final is-
junetiva order by district court was nacaa-
eary to allow school district to implement
student aaaignment plan involving manda
tory aaaignment or transportation of ata-
d a ta , which would otherwise be subject to
attack under state kw . Colo C o to A rt
9, « 8.
S. Injunction ^ 2 * 0 (1 )
Beneficiary o f permanent injunction
may come to court to enforce rights ob
tained in litigation by showing that injunc
tive decree ia not being obeyed.
4 Schools W 12(2t)
Final permanent injunctive order man
dating school integration ia binding upon
future school boards.
Gordon G. Greiner, Holland A Hart, Den-
C olo, Jamas M. Nabritt, m . New
York City, t o plaintiffs.
Antonia Hernandez, Norma V. Canto,
Mexican American Legal Defense and Edu
cational Fond, San Antonio, Tax., Kenneth
S»egal, Kenneth Salazar, Sherman A How
ard, Denver, Colo, for p lain tiffs-in ter-
venora.
1537KEYES v. SCHOOL DIST. NO. 1
C h .w M JF .B u p p . ISM (D.Coio. 1**7>
Michael H. Jackson, Semple A. Jackson,
Denver, Colo., Phil C. Neal, Neal, Gerber &
Eiaenberg, Chicago, 111., for defendant*.
MEMORANDUM OPINION
AND ORDER
MATSCH, District Judge.
On June 3, 1985, this court issued a Mem
orandum Opinion and Order ("June 1985
Opinion”) denying the defendants’ motion
of January 19, 1984. That motion request
ed an order declaring that School District
No. 1 is unitary, an order modifying and
dissolving the existing injunction relating
to the assignm ent of pupils to schools, and
an order declaring that this court’s remedi
al orders have been fully implemented and
there is no further need for continuing
court jurisdiction. After the parties report
ed that their, extensive efforts to reach a
negotiated settlem ent of the remaining is
sues had failed, this court entered an Order
For Further Proceedings on October 29
1985 ("October 1985 Order”). That ordeî
directed the defendant to submit pi»»« for
achieving unitary status as defined in this
court’s Memorandum Opinion and Order of
May 12, 1982, Keyes v. School District No.
1, Denver, Colorado, 540 F5upp. 899, 403-
04 (D.Cok>.1982), and to provide reasonable
assurance that future Board policies and
practices will not cause rsesgi sm liuu
H ie court directed that four particular mat
ters be addressed: (1) the identification of
Barrett, Harrington and Mitchell elementa
ry schools as schools for minority children,
(2) the ‘hardship” transfer policy, (8) facul
ty assignm ents, and (4) plans for implemen
tation of Resolution 2288.
The defendants appealed from the June
1985 Opinion and the October 1986 Order.
Daapite the appeal, the defendants have
responded to the court’s directions for fur
ther proceedings, and the plaintiffs and
plaintiff-intervenors (“plaintiffs”) filed a re
ply on December 16, 1985. A hearing was
held on March 13, 14 and 15, 1986. Evi
dence was presented concerning the actions
and plans set forth in the defendants' re
sponse and supplemental response and
plaintiffs’ alternative proposals.
The Defendants’ Responses
Barrett, Harrington and Mitchell
Schools. The District seeks to increase the
Anglo enrollment at Barrett, Harrington
and Mitchell elementary schools by the use
of special programs and educational en
hancements. The Barrett/Cory paired ele
mentary schools are using s teaching meth
od called the Whole Language Program,
designed to increase emphasis on language
development An instructional computer
program complements the curriculum. The
Ellis/Harrington paired elementary schools
use the Mastery Program, a pres
criptive teaching method, an hwtruc-
tional computer program. The Monteeeori
Method has been started at MkoK+fl to
improve the effectiveness o f the
M itchell/Force elementary pair.
The District has also increased communica
tion with parents and is upgrading the
physical appearance of these to
support the paired school concept
Student Transfers DPS Policy
provides new procedures for the admiww.
tration o f parent-initiated transfers from
the school o f assignm ent for day-care
needs at the elementary level, and program
needs at the secondary leveL It abo di
rects new record-keeping and analyses of
the effects o f such transfers. DX-EK86).
The A ssistant Superintendent has
bility for granting or denying such
tions, within stated restrictions on the exer
cise of discretion. The objective is to da-
courage requests for transfers that are not
based on genuine necessity by
independent verification of the need. Most
importantly, the new data *«■ and
monitoring processes should enable the ad
ministration to evaluate any rasegregativs
effects o f the policy.
Faculty Assignment A new policy an
teacher assignm ents has been implement
ed. It is stated as follows:
POLICY ON TEACHER ASSIGNMENT
The District will continue to assign teach
er* so that the teaching sta ff at each
school will reasonably reflect the re-
1538 «M f e d e r a l s u p p l e m e n t
cial/ethmc composition of the total teach
ing itaff.
Beginning with the school year 1985, this
shall mean that, to the extent practica
ble, the percentage of minority teachers,
respectively, at each school shall be with
in one-third of the applicable elementary
(1-6), middle (7-8), or high school (9-12),
percentages. When the required mini
mum number includes a fraction, the
minimum shall be considered to be the
next higher integer.
I t is recognized that fulfilling the re
quirements of the bilingual program will
require departure from the above guide
line in a number of schools and that
availability of qualified teachers for par
ticular positions is among the factors
that may make achievement of the above
gnal impracticable in some instances.
DX-A(86).
Mr. Andrew Raicevich, Director of Per
sonnel Services, testified that he has inter
preted this statem ent to mean that the
required percentage is the number of mi
nority teachers at the respective levels
compared to the total number o f teachers
at those levels, and that this percentage is
applied as both a mmmram mtvJ i w»rj.
mum. Additionally, in the reply brief, the
defendants have accepted the principle that
“rounding'’ o f fractions should be symmet
rical at both the lower and upper ends to
keep the whole numbers within the speci
fied range. TM policy provides for adjust
ments necessary for the bilingual program.
Farther U M T Sought By P laintiffs
The plaintiffs do not object to the ""pig
mentation o f thane programs >|ui pobcise,
but assert that they art inadaquate to
make the system unitary. Additionally,
they request further relief, not only by
providing more specific directions to imple
ment the 1974 Decree but, also, the entry
of new orders to remove all vestigea of
pest discrimination and to protect against
^segregation. They contend that the evi
dence developed at the 1984 and 1986 bear-
mgs supports the need for additional mea
sures.
Barrett, Harrington and U.i l ,
Schools. The plaintiffs' w itu« , t
lee, expressed skepticism about the
tiveness of the Whole Language Fv,
at Barrett, but he was e n f f i f e
the Mastery Learning Program at H x J?
ton and the Montesaori Program at
ell. The plaintiffs observe that only tim
will tell whether any of these
will increase Anglo enrollment tK J T *
apal concern is the potential effect o f Z
Montesson Program at Mitchell on For*
recognizing that a . the program develop
the non-Monteaaon pupils from Mitchell
will be assigned to Force. Additionally the
plaintiff, suggest that the nugnet p r ^
enrollments be controlled to within phu o r
minus 15% of the elementary Anglo per
centage, and that no transfers be allowed
from schools where the effect would be to
reduce the Anglo percentage below 10% of
the elementary average.
Student Transfer Policy. The plaintiffs
assert that the evidence at the 1986 hear
mg reinforces this court’s concern about
the segregative effects of the hardship
transfer policy expressed in the June 1985
Opinion. Importantly, the Dwtriet could
not produce adequate data concerning the
parent-initiated transfers, and Dr. Stelae
presented an analysis, with exhibits, show
ing that fifteen formerly Anglo had
their Anglo percentages increased by traiw-
fera, while fifteen formally minority
■ehools loet Anglos because of transfers.
More than 10% of all elementary pupils
attended schools other than their school of
assignm ent through use of the tranafsr
potiey. The focus of the new pobey is on
the impact of the transfer on the receiving
■cbool, rather than ou both the receiving
and sending schools. It is not daar if tim
policy will be applied to the magnet pro
grams. Only carefully monitored tmnls
mentation o f Pobey iM en wig
whether it effectively prevents dr
tion of the pupil assignm ent plan.
Faculty Assignment The plaintiffs
contend that the continued ovsr-repreaenta-
tion of minority teachers at former minori
ty schools and undar-repreeentation at for
mer Anglo schools, even under the new
1539KEYES v. SCHOOL DIST. NO. 1
O m a t O H ^ ISM (PC«M 11*7)
policy, m attributable to the fact that reas-
signroenta are made in the late spring or
late summer and not adjusted in the fall.
Additionally, they aaaert that the exclusion
of kindergarten and special education
teachers has no rational basis, and that the
District has not presented sufficient data to
justify the bilingual teacher exception.
Further Relief. The plaintiffs contend
that either by modification of the existing
remedial orders, or by the entry of-new
orders, this court should exercise its con
tinuing jurisdiction to provide more specific
directions on matters which go beyond the
October 1986 Order. More particularly,
they urge that this court direct the adop
tion of Dr. S to lee's majority to minority
transfer policy proposal as the principal
vehicle for the voluntary transfers into the
magnet programs, and to eliminate the
need for the hardship transfer policy. Dr.
Stolee proposed that any Anglo pupil in a
school with higher than tbs district.wide
average Anglo percentage can transfer to
any school where either the minority per
centage is higher than the district-wide av
erage, or to any Anglo school which has a
lower Anglo percentage than in the current
school of attendance. Similarly, minority
pupils in schools which are above the dfci-
trict-wid* minority average can transfer to
any school erhere the Anglo percentage is
above the district average, or to any minor-
ity school having a lower percentage of
minority pupils than the school of attend
ance.
The plaintiffs observe that although
large sad* changes in grads structure and
building utilization base bean discussed
publicly, ths District has aswar adopted any
suitably detailed pofibss to assure that
these changes wiD promote and not impede
integration. Thsy assert that ths pm m ists
of Resolution 2233 are insufficient The
plaintiffs request that this court make spe
cific orders for detailed monitoring and re
porting oo ths effects o f ths defendants’
proposals. They also urge a clarification
of the 1974 Decree to require expressly
that the Board eliminate concentrations of
minority teichers in schools historically
identified ss minority schools. The plain
tiffs seek controls to mssure that implemen
tation of the Language Consent Decree
does not impede the desegregation of stu
dents and teachers. Finally, the plaintiffs
urge this court to state its views on the
subject of permanent injunctive relief, and
they suggest language to be included in
such an order.
Resolution o f the Immediate Dispute
[1] The 1974 Decree imposed court con
trol over student assignments, use of facili
ties, faculty and sta ff employment, and
many other aspects of the operation of tha
Denver School System. That degree of
court involvement eras necessary to fulfill
tha Supreme Court’s mandate to ensure
that the School Board perform its “affirma
tive duty to desegregate the entire system
‘root and branch.' ” Key* a School Dis
trict S o 1, Denser, Colorado, 41S U.S.
189, 213, 93 S.C t 2886, 2700, 37 L E d2d
548 (1973) (quoting Green a County
School Board, 391 U.S. 490, 488, 88 S.Ct.
1689, 1694, 20 L.E<L2d 716 (1968)). Essen
tially, the plaintiffs urge this court to con
tinue such close supervision until the tran
sition to a unitary school system is com
plete with adequate measures to prevent
ressgrsgation. The defendants view tha
court’s continuing role aa stifling and stig-
m stic. Hue court made specific findings
oo the District’s failure to achieve unitary
status and tha reasons for continuing juris
diction in tha June 1986 Opinion. W hilt too
District responded positively to the October
1986 Order, the defendants have not
proved that the objectives wiD be achieved.
The defendants recognise the uncertainty
and, essentially, ask this court to rely on
the Board of Education, the administrative
staff, the faculty and ths community to
take the necessary action. Ths defendants*
position is that Resolution 2288, discussed
extensively in this court's June 1986 Opin
ion, is an adequate basis for assuring that
race, color and ethnidty wiD not be imperil-
manta to obtaining tbs benefits offered by
the Denver Public Schools.
H us court cannot determine the effec
tiveness of the programs for increasing
Anglo population at Barrett, Harrington
1540
and MrtcheU School, from the evidence at
the M a ^ 1986 h e ^ g . The defendants
have not demonstrated that the new trana-
t M l t y a“ i*n“ M t plan will
produce the required raaulta. There » am-
p l t reaaon for the plaintiff,’ continued
•keptioam about the concern, commitinem
capacity to achieve and maintain a
unitary achool ,y,tern in Denver. The only
wmprehenaive pfan developed by the
the “Conaenaua
p r o v e d reluctant,
y m 1982. That plan waa adopted only
^ t« r rejection of the irresponsible Total
Aceeaa Plan, and the Board*, ability to
*mve at it, own conaenaua waa undoubted-
^ k ^ ? * * * ? br to cloee nine
•choola « d eatabliah the middle .chool p
£ ” ht P sI?* Pr0«r»o“K n i^ t Fundamental Academy and the GO-
pm Extended Day Care Center have been
successful. the Conaenaua Plan had re-
eff*c t, on Harringtonw i Mitch#!! School# .1
The reaegregative e ffect, could eaailT be
r*n" <bed by additional adjuatinenttfa the
student aaaignment plan aa the plaintiff,
here luggeated. The Dfatriet ha. choeen
DO‘ tovt*ke that approach, m asoning that
such changes have a deeSaNkxfag effect on
the community resulting fa reduced sup-
p o r tfo r the public schools. m court
that assessm ent sad ancouraM
the effort to use alternative m e a m i l t k
precisely because the Board has selected
the more subtle methods for fadndng
change that this court m ust retain jurfadic-
t» n to be certain that fhoae m ethod, are
effective. are
D**prt# <*jM«raemsut with tha court's
achieved unitary status, ths defendants
T E S T ® * * 0etoUr
sttep tin r ths deefaratioos o f Resolution
2288 as official D istrict policy, tha court
MS FEDERAL SUPPLEMENT
now determine, that it ia h-
degree of court control ^ J? "Jf* the
Public Schools, and to reduce D*nver
role in the operation of * e D ie^L '*Urt'»
plaintiff, contend that them ^
b e d ^ a n d t h e h i a t o ^ f ^ ^
s shadow of doubt over the CMt*
ment of intentions fa * *Ut*-
court h - c o n a a f a n t j l ^ j 283-
importance of local M t o n o ^ ^ S l ^ l 1**
educational policy and
rnent Tho Bomd and s d m S S f a I
Have auffiefant fmedom to n £ e ^ T
don. to enhance the « « ■ * £ £ * * *
Z J T S T “ d * ^ ^ d a tchanged orcumatancea. W rtT faaT fr!!!
do® Eoe. the msponaibOity to m « t^ £
requirement, of federal law.
of court control depend, upon the ex u £ !?
comphance with that duty. *Xtont ?
!• The ptafnrlfTi hav, e ^ y mwatfoe lo tfa
identifUble throughout th i, UtigeOoe.
A, ibowu by the evidence at the 19S4 anTl9S6
D fafaS w T T ^ *** " W of the plant tiff , to impose the data co lk ctiT
mourtonng mtd reporting m qu im m «?£
forth « the plaintiff,’ post,hoarfag
H is this court's expectation f a s t f a . ^
will accompliah data collection u d
00 « • own. T b e B o « d a S
wdmmatratioo must be ahla to dsmoostmta
H bU nn of equal educational oooartB-
nrty for an atudenta fa the system.
1* . P on tiff.' n a t i o n , far a ,* *
Z T J Z ! * Pngna P*rtfcil»tion,edop.^ooof the majority to minority transfer
Proposal, tinring of teseher rsssaignments
and mduaxtn of kxndsrgartan and spaa!
education touchers fa the teacher safagn-
meat poBcy art rejected at thfa t i r n a m
court accepts the defendants’ cootaotiom
that there are adequate admfaatrstive and
•J™ * 00*1 pobcy reasons ter mteafag
«uggestions aad that the objectives
“ “ *>• echievsd without thorn. A ftw s
reasonable time, ths District wiS be re-
qotied to return to court to prove that it
b*4 performed ha duty. If it faik, these
*»d other suggestions will be
- ------- — — — pi i iu by fat 197*
Don*, and Mitchell atarty aa Both
" • tepegated by the C onseiw Han aa tbia
court found fa the 1915 Opinion. 609 FJubk
1491. 1307. - t — w
1541KEYES v. SCHOOL DIST. NO. 1
CM* a* *53 FSupp. 153* (D.Colo. 1W7)
Th* Future
A corollary to the decision to reduce
court control over the District’s activities is
the conclusion that the process of con
structing a final order of permanent injunc
tion should go forward. The defendants
have resisted this effort for the reasons
urged in the motion to vacate the existing
injunctive orden and to release the District
from jurisdiction. Although that issue is
on appeal, this court must proceed for sev
eral reasons.
First and foremost is the conviction that
a final order of permanent injunction is the
logical conclusion of this lawsuit because
this court has the responsibility to define
the duty owed to the plaintiffs by the de
fendants. Like any other litigation, that
question must be decided in the context of
an evidentiary record. That record reflects
changes which have occurred during the
course of this law suit Denver was a tri
ethnic community.' It is now multi-racial.
There have been adjustments in education
al policy by the adoption of middle schools
and magnet programs. Undoubtedly, new
approaches to enhancing the quality of edu
cation will involve alterations of the struc
ture of the Denver School System . It can
be expected that these changes will gener
ate controversy and the Board of Education
will make difficult decisions. In the ab
sence o f some workable definition o f a uni
tary school system , those decisions will
generate new charges of discriminatory im
pact and disparate treatm ent
A specific definition o f a unitary school
system for Denver, Colorado has evolved in
this case. It was ffaat proposed by the
Ad-Hoc Committee established by the
Board in 1960, and it was expressly
adopted by this court in June, 1982, as
follows:
A unitary school system is ooe in which
all o f the students have equal access to
the opportunity for education, with the
publicly provided educational resources
distributed equitably, and with the expec
tation that all students can acquire a
community defined level o f knowledge
and skills consistent with their individual
efforts and abilities. It provides a
chance to develop fully each individual’s
potentials, without being restricted by an
idenfification with any racial or ethnic
groups.
K eyes v. S c h o o l D is tr ic t N o. 1, D enver,
C olorado, 540 F.Supp. at 403-404. The
court considers the guidelines developed by
the Ad-Hoc Committee as useful criteria
for determining the existence of a unitary
system.
[2] A final injunctive order is also nec
essary because of the proscription against
student transportation to achieve racial bal
ance contained in the Colorado Constitu
tion, Art. IX, { 8, adopted in 1974. The
defendants assert that this provision is in
valid because it conflicts with the United
States Constitution. But this section is not
facially invalid. One can conceive of a
school district in which methods other than
mandatory student assignm ents may avoid
racial segregation, but that is certainly
not true in Denver, Colorado. Some
amount o f student transportation is re
quired to operate and maintain s unitary
school system in Denver because there are
segregated residential neighborhoods.
Without s federal court order, any student
assignm ent plan involving mandatory as
signment or transportation of etudenta
would be subject to new attack under the
state law. The Colorado Constitution can
not be ignored by the Board, but Ha appli
cation may be enjoined by this court
[3] A permanent injunction is necessary
for the protection of all those who may be
adversely affected by Board action. The
Tenth Circuit Court of Appeals has recent
ly emphasised and repeated the admonition
that “the purpose of courtordered school
integration is not only to achieve, but also
to maintain a unitary school system .”
Dowell v. Board of Education, 796 F .2d
1516, 1520, cert denied, — U JL ------, 107
S.C t 420, 93 L.Ed2d 370 (1966). Reeegre-
gatkm can occur ss much by benign neglect
ss by discriminatory in tent A beneficiary
of a permanent injunction may come to
court to enforce the rights obtained in this
litigation by showing that the injunctive
1542 «M FEDERAL SUPPLEMENT
m not being obeyed. Id. at 1621.
io mmk* thm remedy meaningful, the in-
juactiro order must survive beyood tb« pro-
oodural life of the litigation . . . " f± .»
1521. The District may "return to the
court if it wants to alter the duties imposed
upon it by a mandatory decree.” Id. at
1520.
M The defendant has resisted the de
velopment o f a final permanent injunctive
order because the Board believes that it
« n n o t bind future Boards. Th* court
“Hiat is exactly why there must be
a court order. Neither thfa Board, nor any
future Board, can escape the hfatory of this
. FURTHER ORDERED, that th- . •
^ftV ahernatiT . proposals and req u ests^
further relief are denied, and i t k ^ * *
FURTHER ORDERED, that coun^l
with the court on March 7 * ^ 2
10:30 am ., in the court's Conference ft
S -o n d Floor. P « t Office
and Stout Streets, Denver, C o ^ S f ’ ^
f a S S L ? " ? - *to P laintiff.' request
rorthe data collection, monitoring and re
porting requirements, this court wiD act a
ton* for the defendant to make a farther
evidentiary showing of the effectiveness of
its plana and operations fa achieving t uni-
*“ F achool system . 7fee court and m n it l
must proceed to determine the apebfie con
tents of a final order o f permanent fajune-
two. Additionally. immediate chaoses
m ost be made ia the orders.
There ia uncertainty about whether the
plus or minus 16% ratio o f the Finger Plan
ronaine in e ffec t This court hns mot re
quired that every school fa the Dfafaiet
“ • “ tain that ratio. 11m 1974 and 197*
Derrs as amphaah ed numbers »w.»
n i the starting point The spedfie pupil
aaeig iunent pfae adopted fa the 1979 Do-
aw e is no loager operative. I f a
mg commiemon hes b e * removed. There
• " •earn conflicts between the 1974 Decree
and the L a a fu a fi Ceneeot Decree. The
ZB—HI faafafag psegrmm fa
P ««»l> ha 1« throegh 90 of the 1974 De-
are a* 1-------- 'Mj—
withAccordingly, the
couneel to
o f the existing ordma.
tnct to prove the
and a final
vflU
far the Dfa-
o f ifa pro-
fa-
UP « the fategufag, it fa
ORDERED, that the defendant! may
proceed with the implementation o f the
IN TOE UNITED STATES DISTRICT COURT
FOR TOE DISTRICT OF COLORADO
C ivil Action No. C-1499
F I L E D
WILFRED KEYES, e t e l . . u m t 0 MOTHCT oourr
P la in t if f s
V.
O C T 6 B 8 7
•M M E S R . M A N SPEA K ER
CLERK
SCHOOL D is tr ic t NO. 1, Denver, Colorado, e t a l .
Defendants.
MEMORANDUM OPINION AND ORDER
MATSCH, Judge.
In the Memorandum Opinion and Order entered June 3, 1985, Keyes v.
School D is tr ic t No. 1, Denver, Colo., 609 F. Supp. 1491 (D. Colo. 1985),
th is court determined th a t the remedial phase of th is desegregation case
had not been completed and, therefo re , denied the defendants' motion to
declare the D is tr ic t un ita ry and term inate ju r isd ic tio n . A fter the
p a r t ie s ' unsuccessful a t t e s t s to reach a settlem ent, an Order For Further
Proceedings was entered on October 29, 1985, d irec tin g the D is tr ic t to
submit plans for achieving un itary s ta tu s . The defendants and p la in t i f f s
submitted th e ir respective proposals for fu rther remedial ac tion , re su ltin g
in the Memorandum Opinion and Order of February 25, 1987, 653 F. Supp. 1536
(D. Colo. 1987). That decision recognized the p la in t i f f s ' and
p la in tif f - in te rv e n o rs ' (p la in ti f f s ) skepticism about the concern,
commitment and capacity of the defendants to achieve and maintain a un ita ry
system in Denver, Colorado, given the h is to ry of th is l i t ig a t io n .
Nonetheless, th is court refused to grant the fu rther r e l ie f sought by the
p la in t if f s and accepted the defendants' approach in the m atters of:
(1) B a rre tt, Harrington and Mitchell elementary schools, (2) the "hardship"
tran sfe r policy , (3) facu lty assignments, and (4) plans for implementation
of Resolution 2233. A dditionally, th is court rejected the p la in t i f f s '
proposed data c o llec tio n , monitoring and reporting requirements, relying on
the defendants to e s tab lish and implement su ff ic ie n t data co llec tion and
monitoring to demonstrate the effectiveness of th e ir proposals when called
upon a t an appropriate tin®.
This court a lso looked to the future and recognized the need for
m odification of the ex is ting court orders to relax court control and give
the defendants g rea te r freedom to respond to changing circumstances and
developing needs in the educational system. Accordingly, the p a rtie s were
asked to submit proposals for an interim decree to replace ex is tin g orders.
Those suggested m odifications were received and a hearing was held on
June 24, 1987. The proposals, the memoranda concerning them and the
argianents of counsel a t the hearing have been carefu lly considered.
The e sse n tia l d ifference between the p a rtie s in approaching the task
a t hand i s th a t the defendants have asked the court to e s ta b lish standards
which w ill provide guidance for the D is tr ic t in taking the necessary
actions and which w ill a lso provide a measurement fo r conpliance. Thus,
the defendants suggest th a t changes in attendance zones, assignments to
schools, and grade-level s truc tu re from the student assignment plan in
e ffe c t fo r the 1986-87 school year not be made without p rio r court approval
^ pro jected e ffe c t would be to cause a schoo l's m inority percentage to
move fiv e percentage po in ts or more fu rther away from the then-current
d is tr ic t-w id e average fo r the level (elementary, middle or high school)
- 2 -
than in the year preceding the proposed change. Additionally, the
defendants suggest th a t no new magnet school or magnet program be
established unless enrollment is controlled so that the anglo and minority
enrollments, respectively , are a t le a s t 40% of the to ta l enrollment w ithin
a reasonable time. The defendants also suggest that p rio r court approval
must be obtained for any enlargement of ex is tin g school f a c i l i t i e s ,
construction of new schools, or the closing of any schools.
The p la in t i f f s contend th a t the defendants' request for specific
ju d ic ia l d irec tiv es demonstrates th e ir reluctance to accept resp o n sib ility
to eradicate the e ffe c ts of past segregation, and to assure th a t changes in
p o lic ie s , p rac tices and programs w ill not serve to reestab lish a dual
school system. The defendants' reliance on the court creates doubt about
th e ir a b il i ty and w illingness to meet the constitu tiona l mandate of equal
educational opportunity.
The in junctive decree must meet the requirements of Rule 65(d) of the
Federal Rules of C ivil Procedure and, y e t, th a t requirement of sp e c if ic ity
should not be perm itted to s t i f l e the c rea tive energy of those who plan,
supervise and operate the D is tr ic t , or to supplant th e ir au tho rity to
govern. The task , therefo re , i s to develop a decree which s tr ik e s a
balance between r ig id i ty and vagueness. The p rincipal purpose i s to enable
the defendants to operate the school system under general remedial
standards, ra ther than sp ec ific ju d ic ia l d irec tiv e s . This in terim decree
removes obsolete provisions of ex is ting o rders, relinquishes reporting
requirements, and elim inates the need for p rio r court approval before
making changes in the D is t r i c t 's p o lic ie s , p rac tices and programs. The
defendants are expected to ac t on th e ir own in i t ia t iv e , without p rio r court
approval, to make those changes in the student assignment plan of
- 3 -
attendance zones, pa irings, magnet schools or programs, s a te l l i te zones and
grade level s truc tu re which the Board determines to be necessary to meet
the cducfttiocuil needs of the people of Denver.
The interim decree is a necessary step toward a fin a l decree which
w ill terminate ju r isd ic tio n . The legal p rinc ip les involved continue to be
those a rtic u la te d by Chief Ju stice Burger for a unanimous Supreme Court in
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971). The
f in a l decree w ill be formed under the guidance of Dowell v. Board of
Education of Oklahoma C ity , 795 F.2d 1516 (10th Cir. 1986). The timing of
a f in a l order term inating the c o u rt 's supervisory ju risd ic tio n w ill be
d ire c tly re la ted to the defendants' performance under th is interim decree.
I t w ill be the defendants' duty to demonstrate th a t students have not and
w ill not be denied the opportunity to a ttend schools of like q u a lity ,
f a c i l i t i e s and s ta f fs because of th e ir race, color or e th n ic ity . When th a t
has been done, the remedial stage of th is case w ill be concluded and a
f in a l decree w ill be entered to give guidance for the fu ture.
The defendants object to the use of the term " rac ia lly id e n tif ia b le
schools" as too in d e fin ite and express apprehension tha t th is may be
construed to mean an affirm ative duty broader than th a t required by the
Equal P ro tection Clause of the Fourteenth Amendment to the C onstitu tion .
This concern i s elim inated by the requirement th a t rac ia l id e n t i f la b i l i ty
or su b s tan tia l disproportion must not re s u lt from the defendants' a c tio n s .
What i s enjoined i s governmental action which re su lts in ra c ia lly
id e n tif ia b le schools, as discussed in Swann. In the evolution of the law
since Brown v. Board of Education, the Supreme Court has indicated in the
opinions for the m ajority in Pasadena C ity Board of Education v, Spangler,
- 4 -
427 U.S. 424 (1976), and in Dayton Board of Education v. Brinkman, 433 u.S.
406 (1977), th a t some discrim inatory in ten t must be shown to prove a
v io la tion of the constitu tiona l requirement th a t educational opportunity
ffluŝ ^ *<jually av a ilab le . That in ten t is not, however, measured by the
good fa ith and well meaning of individual Board members or of the persons
who carry out the p o lic ie s and programs d irected by the Board. The in ten t
i s an in s t i tu t io n a l in ten t which can be proved only by circum stantial
evidence. What the D is tr ic t does in the operation of i t s schools w ill
control over what the Board says in i t s reso lu tions. In the renmdial stage
of a school desegregation case, the court must be concerned with the
affirm ative duty to erad ica te the e ffe c ts of past in ten tiona l governmental
d iscrim ination . When un itary s ta tu s is achieved, court-supervision can be
removed only when i t i s reasonably certa in th a t fu ture actions w ill be free
from in s ti tu t io n a l discrim inatory in te n t.
Upon the foregoing, i t i s now
ORDERED AND ADJUDGED:
1. The defendants, th e ir agents, o ff ic e rs , employees and successors and
a l l those in ac tiv e concert and p a rtic ip a tio n with them, are permanently
enjoined from discrim inating on the basis of race, color or e th n ic ity in the
operation of the school system. They sh a ll continue to take action necessary
to d ise s ta b lish a l l school segregation, elim inate the e ffe c ts of the former
dual system and prevent resegregation.
2. The defendants are enjoined from operating schools or programs which
are ra c ia lly id e n tif ia b le as a re su lt of th e ir a c tio n s . The Board is not
required to m aintain the current student assignment plan of attendance zones,
p a irin g s, magnet schools or programs, s a t e l l i t e zones and grade-level
s tru c tu re . Before making any changes, the Board must consider specific data
- 5 -
•bowing the e ffe c t of such changes on the projected ra c ia l/e th n ic composition
of the student enrollment in any school affected by the proposed change. The
Board must ac t to assure th a t such changes w ill not serve to reestab lish a
dual school system.
3. The constra in ts in paragraph 2 are applicable to fu ture school
construction and abandonment.
4. The duty imposed by the law and by th is interim decree is the
desegregation of schools and the maintenance of th a t condition. The
defendants are d irec ted to use th e ir expertise and resources to cooply with
the co n stitu tio n a l requirement of equal educational opportunity for a l l who
are e n ti t le d to the benefits of public education in Denver, Colorado.
5. The D is tr ic t re ta in s the au thority to in i t i a te tra n s fe rs for
adm inistrative reasons, including special education, b ilin g u a l education and
programs to enhance voluntary in teg ra tion . The defendants sh a ll maintain an
estab lished policy to prevent the fru s tra tio n , hindrance or avoidance of a
D is tr ic t student assignment plan through parent in i t ia te d tra n s fe rs and sh a ll
use adm inistrative procedures to investiga te , v a lid a te and authorise tran sfe r
requests using c r i t e r i a estab lished by the Board. I f tra n s fe rs are sought on
grounds of "hardship", race, color or e th n ic ity w ill not be a v a lid basis upon
which to demonstrate "hardship". The defendants sh a ll keep records of a l l
tra n s fe rs , the reasons th e re fo r, the race, color or e th n ic ity of the student,
and of the effects on the population of the tran sferee and tran sfe ro r schools.
6. No student sh a ll be segregated or discrim inated against on account of
race, color or e th n ic ity in any serv ice , f a c i l i ty , a c t iv i ty , or program
(including ex tra cu rricu la r a c t iv i t ie s ) conducted or sponsored by the school in
which he or she i s en ro lled . All school use or school-sponsored use of
a th le t ic f ie ld s , meeting rooms, and a l l other school re la te d serv ices,
- 6 -
f a c i l i t i e s and a c t iv i t ie s , and programs such as commencement exercises and
parent-teacher meetings which are open to persons other than enrolled
students, shall be open to a l l persons without regard to race, color or
e th n ic ity . The D is tr ic t shall provide i t s resources, services and f a c i l i t ie s
in an equ itab le , nondiscriminatory manner.
7. The defendants shall maintain programs and p o lic ies designed to
id en tify and remedy the e ffec ts of past rac ia l segregation.
8. The defendants shall provide the transporta tion serv ices necessary to
s a t is fy the requirements of th is interim decree notwithstanding the provisions
of A rtic le IX, Section 8 of the Colorado C onstitu tion .
9(A). The p rin c ip a ls , teachers, teacher-aides and other s ta f f who work
d ire c tly with children a t a school sh a ll be so assigned th a t in no case w ill
the ra c ia l or ethnic composition of a s ta f f ind icate th a t a school is intended
for m inority students or anglo students.
(B). S ta ff members who work d ire c tly with children , and professional
s ta f f who work on the adm inistrative level w ill be h ired , assigned, promoted,
paid , demoted, dism issed, and otherwise trea ted without regard to race, color
or e th n ic ity .
(C). Defendants are required to use an e ffec tiv e affirm ative action plan
for the h irin g of m inority teachers, s ta f f and adm inistrators w ith the goal of
a tta in in g a proportion which i s consisten t with the ava ilab le labor force; the
plan sh a ll contain yearly tim etables and a reasonable ta rg e t date for the
attainm ent o f the a ffirm ative action goals.
10. The D is tr ic t w ill continue to inclement the provisions of the
program for lim ited English proficiency students heretofore approved by the
Court in the Language Rights Consent Decree of August 17, 1984. Nothing in
th is in terim decree sh a ll modify or a ffe c t the Language Rights Consent Decree
- 7 -
of August 17, 1984, and the p rio r orders entered in th is case re la tin g thereto
sha ll remain in fu l l force and e ffe c t.
11. I t is fu rther provided th a t th is interim decree i s binding upon the
defendant Superintendent of Schools, the defendant School Board, i t s members,
agents, servants, employees, present and fu ture, and upon those persons in
active concert or p a rtic ip a tio n with them who receive actual notice of th is
interim decree by personal service or otherwise.
12. This interim decree, except as provided herein, sh a ll supersede a l l
p rio r injunctive orders and sh a ll control these proceedings u n ti l the entry of
a f in a l permanent in junction .
Dated: October 6, 1987
BY TOE COURT:
- 8 -
CERTIFICATE OF SERVICE
I certify that the foregoing Brief for Defendants- Appellants was served upon each of the persons listed below by depositing same with Federal Express, this 29th day of March,
1988.
Gordon G. Greiner Holland and Hart 555 17th Street, Suite 2900
Denver, Colorado 80201
James M. Nabrit, III
NAACP Legal Defense & Educational Fund, Inc.99 Hudson Street, 16th Floor New York, New York 10013
Norma V. Cantu
Mexican American Legal Defense & Educational Fund
314 East Commerce, Suite 200
San Antonio, Texas 78205
David Flynn
Department of Justice, Civil Rights DivisionAppellate Section
10th and Constitution Avenues
Washington, D.C. 20530