Keyes v. School District No. 1 Denver, CO. Petition for Rehearing and for Stay of Mandate

    IN THE

Supreme Court of tf?e W n itzb H>tate£
October Term 1971

No. 71-507

Wilfred Keyes, et al.,
Petitioners, 

vs

School D istrict No. 1. Denver 
Colorado, et al..

Respondents.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT

PETITION FOR REHEARING 
AND FOR STAY OF MANDATE

WILLIAM K. RIS 
1140 Denver Club Building 
Denver, Colorado 80202
THOMAS E. CREIGHTON 
BENJAMIN L. CRAIG 
MICHAEL H. JACKSON
1415 Security Life Building 
Denver, Colorado 80202
A ttorneys for Respondents

B R A D F O R D  P R I N T I N G ,  D E N V E R



IN THE

Supreme Court of tfje ®mteb States
October T erm 1971

No. 71-507

Wilfred Keyes, et al.,

vs

School D istrict No. 1, D enver 
Colorado, et al.,

Petitioners,

Respondents.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT

PETITION FOR REHEARING 
AND FOR STAY OF MANDATE

Respondents respectfully petition the Court for a rehear­
ing on one of the two questions decided by the Court in its 
Opinion of June 21, 1973, namely, whether the courts 
below applied the correct legal standard in addressing peti­
tioners’ claims of state-imposed segregation in the core city 
schools; and as to that question, respondents seek rehearing 
only as to that part of the question relating to the shifting of 
the burden of proof discussed in Part III of the Opinion.



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Respondents also request that the mandate be stayed 
until disposition of this petition.

Grounds for the Petition
1. Summary

The Opinion leaves doubt as to whether the school au­
thorities have the burden of proving lack of segregative in­
tent as to their actions prior to the intentionally segregative 
actions, first occurring in 1960, proven by the petitioners.

All precedent and authority hold that prior intentional 
acts are probative on the question of the intent associated 
with later acts. Yet the Opinion does not explicitly confine 
the effect of the burden-shifting principle to actions at or 
after the time of the proven intentional segregative acts.

Whether the respondents’ burden of proof extends to 
school district actions prior to 1960, when the first segrega­
tive act, the building of Barrett School, was shown, will 
make a substantial difference, upon remand, in the scope of 
the proceedings, including the time required for trial prepa­
ration, the duration of the trial, and the expense to the 
school district. It will make the difference of whether the 
school district must carry the burden of proof respecting the 
intent of all of its actions for only the 14-year period extend­
ing back to 1959, or for a much longer period of at least 
twice that duration to the early 1940’s when ethnic concen­
trations first began to appear in the Denver schools.

2. The Authorities and Precedents

All of the treatises and cases cited by the Court refer to 
prior or concurrent conduct. The touchstone for the bur­
den-shifting rule is the

“. . . well-settled evidentiary principle that ‘the 
prior doing of other similar acts, whether clearly



3

part of a scheme or not, is useful as reducing the 
possibility that the act in question was done with 
innocent intent.’ II Wigmore, Evidence 200 (3d 
ed. 1940).” (emphasis added) (Opinion, p. 17)

The example of the application of the principle from the 
criminal context (Nye & Nissen v. United States, 336 U.S. 
613 [1949]) involved presentation of false invoices during 
the same period of time as the acts charged (332 U.S. at 
618).

The school desegregation cases cited by the Court — 
Swann v. Charlotte-Mecklenburg Board of Education, 402 
U.S. 1 (1971), and the teacher discharge cases — all in­
volved a “history of segregation,” which the Court expressly 
defines:

“Indeed, to say that a system has a ‘history of 
segregation’ is merely to say that a pattern of in­
tentional segregation has been established in the 
past.” (emphasis added) (Opinion, p. 20)

The Court then restates its holding, in the light of these 
authorities, as follows:

“Thus, be it a statutory dual system or an aleg- 
edly unitary system where a meaningful portion 
of the system is found to be intentionally segre­
gated, the existence of subsequent or other segre­
gated schooling within the same system justifies a 
rule imposing on the school authorities the bur­
den of proving that this segregated schooling is 
not also the result of intentionally segregative 
acts.” (emphasis added) (Opinion, p. 20)

The use of the words “subsequent or other,” especially in 
light of the authorities cited, is consistent with the applicabil­
ity of the shift of burden to subsequent or contemporaneous



4  —

situations, excluding prior segregated schooling from the 
operation of the burden-shifting rule.

3. The Application of the Rule by the Courts Below

The courts below clearly recognized that prior segrega­
tive acts have probative value on the issue of segregative 
intent with respect to later acts.

This Court commenced its discussion of the burden-shift­
ing principle with the observation that the District Court 
had considered “past discriminatory acts . . .  in assessing the 
causes of current segregation . . . ” (emphasis added) 
(Opinion, n. 14, p. 16). The District Court had limited its 
consideration of the Park Hill actions in 1960 (building 
Barrett), 1962 and 1964 (boundary changes at Stedman 
and Hallett), and 1965 (mobile units at Stedman and Hal- 
let), to the assessment of segregative purpose of the later 
1969 acts (the repeal of the racial balancing resolutions). 
Thus, the limitation of the District Court’s comment is 
chronological, not geographical.

When the Court of Appeals agreed with the District 
Court that the “petitioners had failed to prove” intentional 
discriminatory acts causing present racial imbalance in the 
core city schools, the Court of Appeals clearly limited the 
imposition of the burden on petitioners to the time period 
prior to 1960 when there were no prior segregative acts 
shown:

“Where, as here, the system is not a dual one, and 
where no type of state imposed segregation has 
previously been established, the burden is on 
plaintiff to prove by a preponderance of evidence 
that the racial imbalance exists and that it was 
caused by intentional state action, (emphasis 
added) (445 F. 2d at 1006, A.P. 148a)



5

4. The Structure of the Case and the Order of Events
The segregative acts in Park Hill occurred in the 1960’s, 

as the Opinion notes (p. 8); but, with one exception, the 
Opinion nowhere identifies the time period in which the acts 
with respect to the core city schools took place. The excep­
tion is the reference to actions in the core city area antedat­
ing the 1954 decision in Brown, where the focus of the 
Opinion was on the attenuation of causal effect, as distinct 
from intent. (Opinion, p. 20)

Respondents believe that it is probable that the Court, in 
formulating the burden-shifting principle, misapprehended 
the order of events as between the Park Hill schools and the 
core city schools. This could easily have happened because 
the Park Hill evidence was presented at the first hearing in 
support of the first cause of action, and the trial court’s 
opinions thereon were announced and reported first. The 
District Court discussed the Park Hill evidence in the first 
part of its opinion on the merits, and the Court of Appeals 
did likewise in its opinion. Petitioners, in their brief, consis­
tently reversed the chronology in discussing the evidence 
and other aspects of the case, and discussed the Park Hill 
events first before turning to the earlier events in the core 
city area.

Actually, almost all of the actions of the school district 
with respect to the core city area took place in the 1950’s, 
under wholly different school boards, ten years before the 
Park Hill events.

5. The Secondary Issue of Causal Attenuation
Nor does the discussion of causal attenuation (Opinion, 

pp. 20, 21) appear to carry the application of the burden- 
shifting principle back to actions taken prior to the period 
of proven intentional segregation. This is because the show­
ing of causal attenuation comes into play as to those acts



6  —

which cannot be shown to lack segregative intent. (Opinion, 
p. 21) And such intent, by all authorities cited, can be in­
ferred only on the basis of prior or contemporaneous 
segregative acts, and not on the basis of subsequent in­
tentional acts many years later.

Conclusion
We are assured by Biblical authority that the iniquities 

of the fathers will not be visited on the children. Con­
versely, the Court should not visit the “sins” of one genera­
tion of school board members and administrators upon the 
men and women serving in such capacities in an earlier 
generation.

WHEREFORE, respondents respectfully pray that re­
hearing be granted on the question of whether proven dis­
criminatory acts may be deemed probative on the issue of 
the segregative purpose of earlier acts, thus shifting the bur­
den of proof as to such earlier acts. A resolution of this 
question is of substantial importance in determining the 
scope of the future conduct of this litigation.

This petition is filed after the Court has adjourned; re­
spondents, accordingly, also respectfuly request that the 
mandate of the Court be stayed until disposition of this 
petition, in the interests of orderly further proceedings 
below.

Respectfully submitted,
WILLIAM K. RIS 
1140 Denver Club Building 
Denver, Colorado 80202 
THOMAS E. CREIGHTON 
BENJAMIN L. CRAIG 
MICHAEL H. JACKSON 
1415 Security Life Building 
Denver, Colorado 80202 
Attorneys for Respondents



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CERTIFICATE

The undersigned, counsel for respondents, certify that the 
foregoing Petition for Rehearing is presented in good faith 
and not for the purpose of delay, and that the petition is 
restricted to substantial grounds now available to respond­
ents in view of the Opinion herein.

Attorneys for Respondents