Keyes v. School District No. 1 Denver, CO. Reply Brief for Defendants-Appellees

    Nos. 85-2814, 87-2634

IN UNITED STATES COURT
OF APPEALS FOR THE TENTH CIRCUIT

WILFRED KEYES, et al.,
Plai.ntif fs-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

REPLY 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.

Reply Brief for Defendants-Appellants 
School District No. 1 

Denver, Colorado



TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES...................... .. ii
ARGUMENT...................... : . ................... 1

Introduction.........................................1
1. Plaintiffs' arguments of mootness, lack of

jurisdiction, waiver, and prematurity are 
without merit..................................... 2

2. The district court's 1985 opinion did not
provide "solid grounds" for refusing to find 
the District unitary as to the student atten­
dance pattern..................................... 7

(a) Transfer "abuses" and
faculty "segregation." ..........  . . .  9

(b) "Construction and abandonment
policies.".............................. 12

(c) "Resegregation" of three schools . . . .  14
(d) The Language Consent Decree..............17

3. The interim decree conflicts with 
applicable legal principles and 
therefore is not an "appropriate
exercise of judicial discretion."................17

CONCLUSION 24



TABLE OF AUTHORITIES

Cases Page( s)

Adashunas v. Neqlev. 626 F.2d 600
(7th Cir. 1980).................................. 3

Battle v. Anderson. 708 F.2d 1523 (1983)..............  13, 14
Davis v. School Commissioners of Mobile.

402 U.S. 33 (1971).................. .............. 16
Deckert v. Independence Shares Corp.,

311 U.S. 282 (1940).............................. 3
Dowell v. Bd. of Educ. of Oklahoma City.

795 F. 2d 1516 (10th Cir. 1986)....................  16, 21
Keves v. School District No.. 1. Denver

Colorado. 576 F.Supp. 1503 (D. Colo. 1983)........ 17
Keves v. School District No. 1, Denver.

Colorado. 609 F.Supp. 1491 (D. Colo. 1985)........  8, 10, 12, 14
Morgan v. Nucci. 831 F.2d 313 (1st Cir. 1987)..........  2, 4, 8, 9, 22
Ortiz v. Eichler. 794 F.2d 889

(3d Cir. 1986).....................................3
Pasadena City Bd. of Education v. Spangler.

427 U.S. 424 (1976)..............................  1, 5, 8,16, 21
Riddick v. School Bd. of Norfolk.

784 F. 2d 521 (4th Cir. 1986)......................  22
Scandia Down Corp. v. Euroquilt. Inc..

722 F. 2d 1423 (7th Cir. 1985)....................  20
Skirvin v. Mesta. 141 F.2d 668

(10th Cir. 1944).................................. 3
Spangler v. Pasadena City Bd. of Educ.. 611 F.2d

1239 (9th Cir. 1979)..............................  2, 4, 22
Swann v. Charlotte Mecklenberq Bd. of Educ..

402 U.S. 1 (1971).......................... .. 16

li



Table of Authorities (cont'd)

Cases Page(s)

Tasbv v, Wright, 713 F.2d 90
(5th Cir. 1983).................................. 4

United States v. Overton. 834 F.2d
1171 (5th Cir. 1987)............................... 22

Vaughns v. Bd. .of Educ. of Prince George's County.
758 F. 2d 983 (4th Cir. 1985)...................... 4

Statutes
28 U.S.C. §§1292(a)(1) . . .  ..............  . . . . . .  3, 4
20 U.S.C. §1701................................ .. 17
Miscellaneous 
9 Moore's Federal Practice

1110.25[1] (2d ed. 1987). ....................... .. 4
Rule 65(d), Fed. R. Civ. P............................. 19, 20, 21

- iii -



ARGUMENT

Introduction.

Plaintiffs' brief largely ignores the central issues in 
this case, which concern the legal principles that determine 
unitariness and the extent of a district court's authority when 
that point has been reached. Those issues of law are before the 
Court on this appeal. They were raised by defendants' motion 
that gave rise to the orders appealed from. They were ruled on 
by the district court in denying that motion. Those substantive 
issues must be addressed if this appeal, which the district 
court encouraged the defendants to take in order to clarify 
important questions, and which has been pending now for over two 
years, is to serve the interests of justice and efficient 
judicial administration by providing guidance for the future 
course of this case.

Instead of responding on the substantive issues, plaintiffs 
would have this Court avoid them by suggestions of mootness, 
waiver, acquiescence, untimeliness and "prematurity." As to the 
merits of the district court's 1985 orders, plaintiffs content 
themselves with arguing that various grounds supported 
"injunctive relief" and "retention of jurisdiction." They fail 
to address the serious questions as to the nature and scope of 
any permissible injunctive relief br retention of jurisdiction 
that are raised by the decisions of the Supreme Court in 
Pasadena City Bd. of Educ. v. Spangler. 427 U.S. 424 (1976), of



the Ninth Circuit in the same case (Spangler v. Pasadena City 
Bd. of Educ. . 611 F.2d 1239 (9th Cir. 1979)), and of the First
Circuit in Morgan v. Nucci. 831 F.2d 313 (1st Cir. 1987), 
decisions with which the district court's rulings and reasoning 
in this case are plainly in conflict.

As to the 1987 "interim" injunction, plaintiffs' brief 
makes little serious attempt to defend its terms. Plaintiffs 
argue merely that "some form" of injunction was appropriate, and 
that the decree is a "reduced intrusion" into the Board's 
control. As to the terms of the injunction, plaintiffs scarcely 
discuss the serious problems pointed out by defendants but 
rather dismiss those problems with conclusory assertions that 
the provisions of the decree are "sufficiently specific" and 
that the decree "imposes no obligation to undertake new 
remedies." From the feeble defense plaintiffs offer, it would 
appear that plaintiffs themselves regard the injunction as 
difficult to support.

1. Plaintiffs' arguments of mootness, lack of jurisdic­
tion, waiver, and prematurity are without merit.

Plaintiffs argue that the appeal in No. 85-2814 is moot 
because the 1974 decree has been superseded by the new 
injunction that is the subject of the appeal in No. 87-2634. 
The argument is incorrect. The district court's 1985 orders 
(June 3 and October 29) did not grant the relief from the 1974 
injunction that defendants' motion had sought, and the new 
injunction does not do so either. Defendants' appeal from the 
1985 orders as interlocutory orders refusing to modify an

2



injunction therefore presents issues that have not been mooted 
by any subsequent order of the district court.

Plaintiffs' argument that the mere entry of a subsequent 
modified injunction automatically moots an appeal from a 
previous order refusing to dissolve or modify an injunction 
would enable a district court to abort appeals perpetually. All 
a trial court would need to do to moot a pending appeal from an 
injunctive order (or a refusal to dissolve or modify one) would 
be to issue a new, slightly different, injunctive order. This 
would "supersede" the previous order and, on plaintiff's theory, 
moot the appeal. Appellate review under 28 U.S.C. §1292(a) is 
not meant to be such a cat-and-mouse game.

Equally without merit is plaintiffs' argument that the 
issue of unitariness is unreviewable because a "refusal to issue 
a declaratory judgment" is not a reviewable interlocutory order. 
The issue of unitariness is inseparable from the question of the 
correctness of the district court's refusal to modify the 
injunction by eliminating any injunctive order controlling 
defendants' student-assignment plan. A court of appeals' 
jurisdiction under 28 U.S.C. §1292(a)(l) is not limited solely 
to the consideration of the orders giving rise to the appeal. 
It has been long established that other interlocutory orders 
that are both interdependent with and underlie the orders 
supporting the appeal also lie within the jurisdiction of the 
appellate court. Deckert v. Independence Shares Coro.. 311 U.S. 
282, 286-87 (1940); Skirvin v. Mesta. 141 F.2d 668, 671-72 (10th 
Cir. 1944); Ortiz v. Eichler. 794 F.2d 889, 892 (3d Cir. 1986); 
Adashunas v. Neglev. 626 F.2d 600, 602 (7th Cir. 1980); 9

3



Moore's Federal Practice U110.25[l], at 270 (2d ed. 1987). 
Here, there can be no question that the district court's orders 
"refusing to modify" and, subsequently, "modifying" the 
outstanding injunction are appealable under the specific terms 
of 28 U.S.C. §1292(a)(l). That being true, the trial court's 
contemporaneous refusal to declare the District unitary is also 
reviewable because of its fundamental interdependence with the 
orders that are now properly before this Court for review.

If plaintiffs' argument were correct, no school district 
could ever appeal the refusal of a district court to determine 
that it is unitary, for all such refusals are necessarily 
interlocutory. However, other courts have seen no difficulty 
with exercising jurisdiction to review such a refusal, no doubt 
for the obvious reason that any such refusal is not just a 
refusal "to issue a declaratory judgment that a defendant has 
complied with an injunction" but is a refusal to grant relief 
from an injunction. See, e.g. . Morgan v. Nucci, 831 F.2d 313; 
Vaughns v. Bd. of Educ. of Prince George's County. 758 F.2d 983 
(4th Cir. 1985); Tasbv v. Wright. 713 F.2d 90 (5th Cir. 1983); 
Spangler v. Pasadena City Bd. of Educ.. 611 F.2d 1239.

As to plaintiffs' arguments of "waiver" and "untimeliness," 
it is difficult to understand the purpose of the arguments. 
(See PI. Br. 27-29.) The validity of the district court's 1979 
and 1982 orders is not before the Court. As plaintiffs observe, 
defendants did not appeal those orders. Contrary to what 
plaintiffs suggest, however, defendants are not "complaining" 
about those orders or seeking belatedly to deny the district 
court's jurisdiction in the period between 1979 and 1983. The

4



present question is whether the defendants' decision not to 
appeal those earlier orders prevents them from now asserting 
that the District is unitary and has been so since even before 
the district court's 1982 order. Plaintiffs apparently mean to 
suggest, without actually saying so, that defendants' failure to 
appeal the earlier orders does bar them from so contending. If 
so, plaintiffs are plainly in error. The Supreme Court took 
note of such an argument in the Spangler case and rejected it, 
saying:

At least one of the judges of the Court 
of Appeals expressed the view that while all 
of the petitioners' contentions which we 
have discussed might be sound, they were 
barred from asserting them by their 
predecessors' failure to appeal from the 
1970 decree of the District Court. But this 
observation overlooks well-established rules 
governing the modification of even a final 
decree entered by a court of equity.

Pasadena City Bd. of Educ. v. Spangler. 427 U.S. 424, 437.
As with plaintiffs' other procedural arguments, their 

"waiver" theory proves too much. If it were valid, it would 
mean that any school district that ever "acquiesced" in a 
district court's remedial order at a time when the school 
district arguably was unitary has forever waived its right to 
challenge further orders, and therefore has become subject to 
the continuing power of the district court for as long as the 
court chooses to exercise such power. Plaintiffs cite no 
authority for such a proposition, nor any reason why a school 
district that has "acquiesced" in earlier orders of a district 
court should be subject to the continuing jurisdiction of a

5 -



federal court any longer than districts that have attempted at 
the earliest possible time to be declared unitary.

Having contended that all arguments as to the unitariness 
of the District are "too late," plaintiffs then seek to avoid 
all arguments as to the future by contending that they are "too 
soon." Thus plaintiffs suggest that it is "premature" to answer 
the arguments of the United States as amicus curiae against the 
entry of a permanent injunction at the conclusion of the case. 
PI. Br. 1, note 1. But the same issues are raised, in 
substance, in defendants' brief. Plaintiffs make no effort to 
answer or discuss the arguments in defendants' brief either.

The issues are raised in defendants' brief because almost 
all of the objections defendants urge as to the "interim" 
injunction would apply a fortiori to a permanent injunction cast 
in those terms, and because it is quite apparent that no 
permanent injunction seeking to regulate future changes in the 
student attendance pattern in the Denver Public Schools could 
avoid those objections.

The issues as to the permissibility of a permanent 
injunction are not premature. As the amicus brief notes, the 
district court has clearly indicated its intention to impose a 
permanent injunction regulating the student assignment practices 
of the defendant District. Furthermore, the plaintiffs in 
submitting their proposals for an interim injunction - which 
were largely adopted by the district court - clearly indicated 
that they regarded the proposals as suitable for a permanent 
injunction as well. There is little doubt that, unless this 
Court instructs otherwise, plaintiffs will urge that the interim

6



decree prescribes the obligations that should be imposed on the 
school district permanently. It is disingenuous of plaintiffs 
to suggest that these issues are premature because a permanent 
injunction "does not exist" and because "fact findings" are 
necessary to the "substantive analysis." The dispositive
questions are questions of law. They are fully reflected in the 
opinions of the district court. They are not "premature" if 
this Court's remand is to give any guidance to the district 
court and avert the need for protracted additional proceedings 
in this case, including a likely further appeal to this Court.

2. The district court's 1985 opinion did not provide 
"solid grounds" for refusing to find the District 
unitary as to the student attendance pattern.

Plaintiffs' brief asserts that the district court's June 
1985 opinion provided "several solid grounds" for rejecting the 
Board's "position." PI. Br. 29-30. However, in discussing 
those grounds (which we examine further below) plaintiffs 
disregard a proposition that was fundamental to defendants' 
"position" in the district court. That proposition was that a 
school district may have achieved unitary status with respect to 
desegregation of student assignments to schools - and thus be 
entitled to relief from any further orders adjusting school 
assignments for the purpose of improving racial balance - even 
though it may not be unitary in all other respects. Defendants 
relied for this proposition on the Supreme Court's decision in 
the Spangler case.

7



The plaintiffs opposed defendants' contention and the
district court rejected it. The district court observed, and 
plaintiffs now repeat the observation, that defendants were 
relying on "a very expansive interpretation" of the Spangler 
decision. PI. Br. 38. But the First Circuit has now addressed 
the issue, and it has not only adopted the interpretation that 
plaintiffs characterize as "expansive" but has regarded the 
conclusion as too obvious to require discussion. Morgan v. 
Nucci, 831 F.2d at 318-19 (see Def. Br. 17). Yet plaintiffs'
brief is written as though there were no conflict between the 
district court's decision in this case and the decisions in 
Spangler and Morgan v. Nucci - in short, as if any ground that 
might exist for continued jurisdiction in the district court is 
sufficient to support unlimited continuing judicial supervision 
over the assignment of pupils for racial-balance purposes.

The district court was clearly of the same erroneous view. 
It said:

Accordingly, during that particular school 
year [1976-77], the Denver school system can 
be considered desegregated with respect to 
pupil assignments. That, of course, is but 
one of the elements in a unitary system.

609 F.Supp. at 1508. The court then proceeded to consider
"Faculty Assignments" and "Hardship Transfers" as additional
"elements", and concluded by observing that there was no
challenge as to the District's treatment of facilities and
physical resources, or any racial disadvantage with respect to
extracurricular activities. 609 F.Supp at 1514. It is plain,
then, that the district court was rejecting the notion that the
Denver schools might be found unitary as to student assignments

8



even though it acknowledged that the District had been 
desegregated in that respect.

That error of the district court requires correction, as 
the similar errors of the lower courts were corrected in 
Spangler and Morgan v. Nucci. because of its important 
implications for further proceedings. In both of those cases 
the appellate court directed the district court on remand to 
address itself to certain limited unfinished business only, with 
clear indications that jurisdiction should be promptly 
terminated thereafter. The same result is called for in this 
case.

The foregoing error is sufficient to require reversal. In 
addition, however, there are serious defects in plaintiffs' 
arguments as to each of the specific "grounds" plaintiffs urge 
as supporting "injunctive relief and retained jurisdiction."

(a) Transfer "abuses" and faculty "segregation." 
Plaintiffs' brief both misstates defendants' position on the 
faculty-assignment and hardship-transfer issues and distorts the 
district court's findings on those matters.

Defendants' brief did not "concede the validity of the 
court's findings" on these matters. (PI. Br. 30.) Rather, 
defendants stated that it did not challenge those rulings on 
this appeal because defendants had already taken action 
remedying the deficiencies perceived by the district court and 
the correctness of the court's rulings can therefore be regarded 
as moot. (Def. Br. 5 n.2.)

The district court did not in fact make any findings that 
support the pejorative descriptions in plaintiffs' brief.

9



Plaintiffs' brief is replete, for example, with references to 
"transfer abuses" and the Board's having "permitted parents to 
abuse" the transfer policy. The district court did not find any 
"abuse" by anyone, or any violation by the Board of any 
provision of the decree under which it had been operating for 
ten years. All that the court found was that enrollment data 
indicated that transfers (including all kinds of transfers) had 
"contributed to the racial identification" of certain schools, 
and that the effects of the transfer policy had not been 
adequately monitored by the District. Indeed, the court 
specifically found that the evidence did not support plaintiffs' 
accusation that the District had maintained the equivalent of an 
"open enrollment" system by the transfer policies. 609 F.Supp. 
at 1514.

Similarly, the district court did not find, as plaintiffs 
state, that the defendants had "violated" the desegregation 
decree with respect to faculty assignments. There were two 
issues as to the faculty assignment matter. One was how the 
minimum quota of minority teachers should be calculated. The 
defendants had calculated separate quotas for black and Hispanic 
teachers, in deference to seemingly clear language in the 1974 
decree. DPS Add. at 12-13, 119A. The district court appears 
to have ruled, in reliance on language from this Court's 1975 
opinion, that the minorities should be lumped together for this 
purpose (although in odd inconsistency the district court then 
proceeded to differentiate between "black" and "Hispanic" 
faculty for the remainder of its analysis). The district court 
recognized that this was a new issue of interpretation, which

10



resulted in the District's having been "out of compliance" all 
along. Although the District believed, and believes, that the 
district court's interpretation of the original decree was 
erroneous, adoption of the method declared by the court to be 
the correct one was readily feasible and the District therefore 
acquiesced. As defendants' brief has pointed out, the 
difference in results was de minimis.

The other faculty assignment issue related to the maximum 
rather than minimum quota for minority teachers. The district 
court conceded that the decree did not prescribe any maximum. 
Therefore there could be no "violation" by the District in 
failing to adopt one. The decree required that the ethnic 
composition of a school's faculty be such that it will not 
"indicate that a school is intended for minority students or 
Anglo students." DPS Add. at 13. The District maintained - and 
would still maintain - that the presence of minority faculty 
amounting to as much as 3 6% of a school's faculty hardly 
indicates that the school "is intended for minority students." 
Further, the District maintained that if such an allocation were 
to be prohibited or frowned upon, that fact should have been 
made clear at some earlier point during the ten years the 
District had been before the court, rather than being suddenly 
"discovered" as a ground for modifying the decree ten years 
later and denying unitariness. Nevertheless, the district 
court's new prescription could readily be complied with, the 
District had no policy reason for not doing so, and hence the 
Board acquiesced by changing its policy to include a specific 
maximum.

11



(b) "Construction and abandonment policies.” Plaintiffs 
reach far in attempting to depict "construction and abandonment 
policies" as a ground for supporting the district court's 1985 
order. PI. Br. 32-33. Although the district court referred in 
passing to the "proposition . . . that school construction and 
abandonment practices cannot be used to perpetuate or 
reestablish a dual school system" (609 F.Supp. at 1517), the 
court at no point referred to any construction or abandonment 
actions or policies of the District as a reason for refusing in 
1985 to find the District unitary. The district court made no 
finding, and there was no evidence nor even any contention, that 
the District had at any time since the decree in this case was 
entered in 1974 engaged in any segregative actions relating to 
construction or abandonment of schools. See. 609 F.Supp. at 
1514. The court's order of October 29, 1985 did not even 
mention "construction and abandonment" as a problem for which 
the Board was required to propose further remedies. The court's 
opinion of February 25, 1987, following the 1986 hearing 
pursuant to the October 1985 order, did not mention 
"construction and abandonment."

There is simply no basis in the record of this case, or in 
anything the district court has said about it, for holding that 
the Denver school system is not unitary because of any 
"construction or abandonment" policies or practices, other than 
the very practices that were the basis for the original findings 
of liability in this case. If continued jurisdiction is 
justified in this case for the purpose of insuring against any 
improper actions regarding construction or abandonment, it is

12



not apparent when if ever the District (or any other school 
district, for that matter) could be deemed unitary and be 
entitled to release from court supervision. Neither the Supreme 
Court nor any other appellate court, so far as we are aware, has 
ever considered that jurisdiction may continue just to insure 
that a school district does not improperly use construction or 
abandonment policies to cause resegregation.

Although the district court cited this Court's decision in 
Battle v. Anderson. 708 F.2d 1523 (1983), and plaintiffs repeat 
the reference (PI. Br. 33), the court made no findings that 
could properly support retention of jurisdiction under the test 
enunciated in the Battle decision. The Battle opinion stated 
that the district court must exercise supervisory power over the 
Oklahoma prison system "until it can say with assurance that the 
unconstitutional practices have been discontinued and that there 
is no reasonable expectation that unconstitutional practices 
will recur." In this case, as defendants' opening brief 
discussed at length (Def. Br. 25-31), the district court had no 
evidence before it that could justify concluding that there was 
any "expectation that unconstitutional practices will recur." 
In the setting of a school desegregation case, "unconstitutional 
practices" means actions undertaken with discriminatory intent. 
(See discussion and cases cited in Def. Br. 26-27, 4 7 - 4 8 . The

1 The Battle case involved the Eighth Amendment, not the 
Fourteenth. There is an important distinction. Under the 
Eighth Amendment it is a "condition" (i.e. prison 
conditions amounting to cruel and unusual punishment) that 
produces a constitutional violation, not intent. Hence a 
likely recurrence of the constitutional violation could be 
inferred from facts indicating a trend toward the forbidden 
conditions. There were strong findings of such facts by

13



district court made no finding that there was any reasonable 
expectation that the District's Board would in the future engage 
in any intentional discrimination. It had no basis for any such 
finding. And, indeed, the court professed to accept the Board's 
good faith. 609 F.Supp. at 1520.

Instead of finding any such basis for expecting future 
constitutional violations, the district court expressed concern 
about effects that would flow from the Colorado Constitution, 
from the Board's professed interest in neighborhood schools, and 
from the Board's failure to provide assurances that it would 
take action "to avoid any discriminatory impact of any policy or 
program." 609 F.Supp. at 1518 (emphasis added).

Thus, to whatever extent the district court relied on the 
Battle decision as supporting its refusal to find the District 
unitary, it did so as a result of its erroneous assumptions as 
to the constitutional obligations of the Board, as our opening 
brief has pointed out.

(c) "Resegregation" of three schools. Plaintiffs' brief 
next focuses on three schools, as did the district court's order 
of October 29, 1985, that had unquestionably been fully 
desegregated by the court's own criteria for a period of at 
least five years but whose Anglo percentage had dropped to 18%, 
15%, and 14% respectively after the adoption of the Consensus

the district court in the Battle case: "[T]he system is 
clearly in the state of rapid decline. [It] has slipped 
into the twilight of constitutional compliance and could 
well slip into its previous unconstitutional condition." 
See 708 F.2d at 1539. No analogous findings have been or 
could be made with respect to the Denver school system, 
and this is true even if "condition" rather than 
discriminatory intent were the constitutional test.

14



Plan in 1982. (DPS Add. at 91, 94, and 95.)2 The question that 
should have been considered but which plaintiffs7 brief does not 
address was whether the fact that three schools dropped to those 
percentages, under the circumstances in which their 
"resegregation" occurred, was sufficient to render the school 
district as a whole non-unitary in its student assignments. All 
the precedents as to unitariness of which we are aware point to 
the conclusion that those facts were not sufficient to negate 
unitariness, because (1) the schools in question were clearly 
not one-race schools, (2) viewed against the degree of 
desegregation or racial balance in the district as a whole the 
existence of three schools with such percentages was a 
negligible circumstance, and (3) the failure of the three 
schools to meet the projections of the Consensus Plan3 was not 
the result of any disobedience of a court order or of any

2 In its October 1985 opinion the district court proceeded on 
the erroneous assumption that the three schools had not 
been previously desegregated. See Def. Br. 22-23.

3 Plaintiffs7 brief misleadingly implies that the low Anglo 
percentages enrolled at Barrett, Harrington and Mitchell 
after 1982 were deliberately caused by the Consensus Plan. 
They were not. The Plan itself projected that both Barrett 
and Harrington would be within +15% of the districtwide 
average and that the Anglo percent at Mitchell would be 
lowered by only 1.4%. (DX A-5, DPS Add. at 113.) And, 
contrary to plaintiffs7 assertion (PI. Br. 35), defendants 
never contended that "demographic changes" were the cause 
of the unexpected drop at those three schools. (The Board 
merely contended that demographic change was demonstrably 
large throughout the district as a whole, explaining much 
of the variation of schools generally from their initial 
ratios in 1976.) The Board had no explanation, except for 
the fact that, as is well known, students often fail to 
appear in the numbers and proportions that planners 
have projected - in itself a compelling reason for not 
keeping a school system in a constant state of flux 
attempting to achieve "racial balance" at every school.

15



"intentional and racially motivated scheme to avoid the 
consequences of a mandatory injunction" (Dowell v. Bd. of Educ. 
of Oklahoma Citv. 795 F.2d 1516, 1522 (10th Cir. 1986).)

Plaintiffs' brief studiously avoids comparison of 
desegregation in the Denver school system with that in Boston or 
any of the other "unitary" school systems described in the cases 
cited in defendants' brief. (Def. Br. 23-25.) Instead it 
argues that the district court was justified in requiring "new 
plans" because of the "atfirmative duty" standards of the Swann 
and Davis cases. (PI. Br. 3 4.) But that argument merely begs 
the question. The "affirmative duty" standards of the Swann and 
Davis cases apply to a school district that has not remedied a 
previous constitutional violation. They do not apply to a 
district that has already once remedied the violation - a 
district that has, in the language of the Spangler case, 
"implemented a racially neutral attendance pattern." (See Def. 
Br. 16.)4 Plaintiffs do not offer any explanation of the source 
of the supposed "affirmative duty" to revise the attendance 
plans for Barrett, Harrington and Mitchell in order to improve 
racial balance at those schools.

4 Plaintiffs cavil that the Finger Plan was not "racially 
neutral" but rather was "racially-explicit." PI. Br. 2. 
Of course, the same could be said of every remedial plan in 
desegregation cases. The point is not that the process of 
assignment is racially neutral, but that the resulting 
pattern of student assignments is racially neutral. That 
is why the Spangler opinion explicitly refers to a 
"racially neutral attendance pattern" even though the 
Pasadena plan explicitly relied on zone lines drawn with 
racial considerations in mind. Just as in Pasadena. there 
is no doubt that the Finger Plan in Denver did achieve a 
"racially neutral pattern" of student attendance.

16



(d) The language consent decree. The district court did 
not in any way rest its 1985 orders denying defendants' motion 
on the existence of the consent decree relating to bilingual 
instruction. Nor has the district court itself ever suggested 
that it must retain jurisdiction over all aspects of the Denver 
school system until it terminates supervisory jurisdiction over 
the language decree. Plaintiffs' suggestion (PI. Br. 36) that 
the district court must do so to "avoid conflict" is without 
merit. The language decree derives from a "supplemental 
complaint," based on the Equal Educational Opportunities Act, 20 
U.S.C. §1701 et sea. See 576 F.Supp. 1503, 1506. There can be 
no conflict between the District's obligations under the consent 
decree and its constitutional obligations under the Fourteenth 
Amendment. The latter are paramount. If any party to the 
language decree contends at any time that any obligations 
imposed by the consent decree are in conflict with the 
District's obligations under the Fourteenth Amendment, that 
party can raise such objection under the language decree and, if 
the court so determines, the language decree must be modified. 
No such issue has arisen during the four years thus far of 
implementation of the language decree and there is no reason to 
suppose it will occur in the future. Plaintiffs' conjectures 
are another stratagem to further postpone indefinitely 
resolution of the issues raised by this appeal.

3. The interim decree conflicts with applicable legal 
principles and therefore is not an "appropriate 
exercise of judicial discretion."

Plaintiffs' brief makes little attempt to meet the detailed 
objections defendants have advanced both as to (1) the propriety

17



of any kind of "interim" form of "at-your-peril" decree, once 
the original remedial plan is ended, and (2) the actual terms 
of the interim decree entered by the district court. Indeed, 
plaintiffs' brief on this part of the case is little more than a 
rather disjointed series of propositions stating in various 
ways, "There's nothing wrong with the decree." Accordingly, the 
main reply to plaintiffs' brief must be to refer the Court to 
the pertinent section of defendants' initial brief. (Def. Br. 
36-49.)

As with other parts of plaintiffs' brief, there are 
inaccuracies in plaintiffs' depiction of the record and of 
defendants' position that distort the legal issues. Thus 
plaintiffs refer (PI. Br. 42) to "the Board's repeated failures 
to measure up to remedial requirements." It is wholly unclear 
what "remedial requirements" are referred to. The citation to 
the district court's opinion given by plaintiffs provides no 
illumination. In the history of this case there has never been 
a finding of any failure of the District to comply with any 
"remedial requirements" imposed by the original decree or 
subsequent court orders, other than the hardship-transfer and 
teacher-assignment matters already discussed supra. pp. 9-11. 
As to those matters defendants took prompt remedial action. To 
characterize the Board on the basis of those two matters as 
having been guilty of "repeated failures to measure up to 
remedial requirements" is both untrue and unfair.

On the other hand, if plaintiffs have something else in 
mind, their accusation is simply another example of the 
vagueness that characterizes the interim decree itself. What

18



are the "remedial requirements" that defendants have failed to
"measure up to"? What are the "remedial requirements" that must 
now be met, under pain of contempt of court and under threat of 
indefinite future surveillance by the district court? Neither 
plaintiffs nor the district court's decree (which was taken 
largely from plaintiffs' proposals) provide answers to these 
questions.

Plaintiffs inaccurately state that defendants' objections 
to the vagueness of the decree are premised on "their assertion 
that all possible desegregation has been accomplished." (PI. 
Br. 42.) Defendants have not asserted that all "possible" 
desegregation has been accomplished. Obviously it is always 
possible that more "desegregation" could be accomplished, simply 
because it is always possible that more nearly perfect racial 
balance in every school could be accomplished by moving more 
pupils around. But that is exactly what the Supreme Court has 
emphatically said is not required. What defendants have said, 
and continue to say, is that they have "desegregated" the Denver 
schools by carrying out for a period of (now) twelve years the 
comprehensive remedial plan that the district court prescribed, 
and this Court approved, as an adequate plan for "desegregating" 
the school system.

If the system is still not "desegregated", notwithstanding 
that compliance, defendants are entitled to be told in specific 
terms what action is still necessary to desegregate the system, 
so that they may either carry out the requirement or test its 
validity by judicial processes other than contempt of court. 
They cannot properly, consistent with either Rule 65(d) or

19



common notions of fairness, be enjoined simply to "take action 
necessary to disestablish all school segregation."

Plaintiffs' effort to analogize the injunction entered by 
the district court to the use of the term "any colorable 
imitation" in the Scandia Down case borders on the ludicrous. 
The vagueness in the interim injunction in this case does not 
stem from the inadequacy of words to express an idea. It 
results from a deliberate purpose of the district court to leave 
the Board unguided, so that the district court may later 
appraise the Board's "performance" by the court's own subjective 
standards and pronounce that performance "good" or "bad" or "not 
yet convincing enough."

It is remarkable also, given the background of the 
injunction, that plaintiffs should argue that vagueness is no 
problem because defendants can always "ask the court in advance" 
if they are uncertain about the injunction's requirements. 
Defendants had proposed that very course as to certain matters 
that are incapable of clear advance prescription (such as school 
location, construction, and abandonment) and the court rejected 
it, on the ground that it wanted to put the Board on its own 
"responsibility."

Plaintiffs' suggestion, and indeed most of their argument 
as to the terms of the interim injunction, trivializes the 
meaning and purpose of Rule 65(d). The very objective of the 
requirement is that the defendant should not have to ask a court 
whether it is about to violate an injunction. That purpose is 
especially pertinent to the position of a school district when, 
under the legal principles enunciated by the Supreme Court, it

20



reaches the point where it is entitled to be restored to 
autonomy. A vague injunction is just another means of sharply 
circumscribing the discretion of the Board. The Supreme Court 
made clear in the Spangler case that the requirement of Rule 
65(d) is not to be cavalierly brushed aside as plaintiffs would 
do.

That the Denver school district has reached the point where 
it is entitled to autonomy, at least with respect to student 
assignments, is confirmed by the district court's termination of 
the Finger Plan. The district court's action cannot be 
interpreted in any manner other than as concluding that that 
plan has served its purposes. The district court has not 
ordered continued adherence to that plan or any other plan.5 
The court purportedly sets the Board free to pursue whatever 
plan the Board wishes - but subject to undefined, and 
unknowable, constraints. Those constraints, even if they were 
not so vague as to violate Rule 65(d), are inconsistent with the 
district court's implicit determination that the remedial 
purposes of the original decree have been acomplished as far as 
student assignments are concerned, a determination that can only 
mean that the District is unitary as to student assignments.

5 This fact - i.e. the district court's dissolution of the 
injunction prescribing the Finger Plan - sharply 
differentiates this case from the situation considered by 
this Court in Dowell v. Bd. of Educ. of Oklahoma City. 795 
F.2d 1516. The controlling circumstance in that case was 
that, as this Court found, the injunction prescribing 
adherence to a specified plan had not been dissolved. Thus 
this Court had no occasion to consider what relief the 
school district might have been entitled to had it asked 
for relief from the injunction at the time the district 
court declared it unitary.

21



/

Four courts of appeals have now agreed that once a school 
district has reached the status where it has been declared or 
should be declared unitary, it should thereafter be subject only 
to the constitutional obligation not to engage in intentional 
segregation, i.e., that unitary status is inconsistent with any 
continuing injunction imposing constraints on the school 
district's management of its affairs. United States v. Overton. 
834 F. 2d 1171 (5th Cir. 1987); Morgan v. Nucci. 831 F.2d 313 
(1st Cir. 1987); Riddick v. Sch. Bd. of Norfolk. 784 F.2d 521 
(4th Cir. 1986) ; Spangler v. Pasadena City Bd. of Educ. . 611
F.2d 1239 (9th Cir. 1979). Plaintiffs' argument that the 
interim injunction is permissible because it represents a 
"reduced intrusion into total Board control" (PI. Br. 43) cannot 
save the injunction. As the court of appeals stated in Morgan 
v. Nucci. the district "is either unitary or not in respect to 
student assignments." (Def. Br. 39). Plaintiffs cite no case 
in which a federal court has ever been upheld in replacing the 
basic remedial decree in a desegregation case and substituting 
an interim decree representing "reduced intrusion into Board 
control." The district court attempted it in Morgan v. Nucci 
and the court of appeals reversed. The same should be done 
here, quite apart from the impermissibly vague provisions of the 
interim decree.

Plaintiffs charge defendants with "insincerity" in 
describing the interim decree as one that keeps the District 
under judicial control for an "indeterminate" period of time. 
(PI. Br. 43.) Instead, say plaintiffs, the district court has 
established a "timetable" for the District to demonstrate the

/

22



" e ffectiveness of its efforts" and " [a]ssuming
effectiveness, . . .  it is the court's intention to enter a
permanent injunction and cease active jurisdiction." It would
be well, however, to consult the court's own statements rather
than plaintiffs' interpretation of the court's "intention."
What the court said was this:

The timing of a final order terminating the 
court's supervisory jurisdiction will be 
directly related to the defendants' 
performance under this interim decree. It 
will be the defendants' duty to demonstrate 
that students have not and will not be 
denied the opportunity to attend schools of 
like quality, facilities, and staffs because 
of their race, color or ethnicity. When 
that has been done, the remedial stage of 
this case will be concluded and a final 
decree will be entered to give guidance for 
the future.

Memorandum Opinion of October 6, 1987, p. 4.
Defendants submit that the requirement thus stated by the 

court clearly subjects the school district not only to an 
"indeterminate" continuation of court supervision but to an 
"indeterminate" burden of proof for obtaining release from that 
supervision, a burden that is without precedent in any decision 
of which defendants are aware. The quoted statement of the 
district court epitomizes the reasons this case is before this 
Court after twelve years of compliance with a comprehensive 
desegregation decree, and the reasons why this Court's 
determination of the applicable legal principles is necessary in 
order to bring this litigation to an early end and restore the 
Board of Education to its full responsibility for the public 
school system of Denver.

23



CONCLUSION

For the foregoing reasons and the reasons set forth in 
defendants7 initial brief, the orders of the district court 
should be reversed, with directions as prayed in that initial 
brief (pp. 48-49).

Respectfully submitted,
Phil C. Neal
NEAL, GERBER, EISENBERG & LURIE 
208 South LaSalle Street 
Suite 900
Chicago, Illinois 60604 
312/269-8000
Michael H. Jackson 
SEMPLE & JACKSON 
The Chancery Building 
1120 Lincoln Street 
Suite 1300
Denver, Colorado 80203 
303/595-0941

Attorneys for Defendants-Appellants

24



CERTIFICATE OF SERVICE

I certify that the foregoing Reply Brief for Defendants- 
Appellants was served upon each of the persons listed below 
by depositing same with Federal Express, this 30th day of 
June, 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
Michael J. Norton 
Assistant U.S. Attorney 
1200 Byron G. Rogers Bldg.
Drawer 3615
Denver, Colorado 80294 
David Flynn
U. S. Department of Justice 
Civil Rights Division, Appellate Section 
10th & Constitution Avenues 
Washington, D.C. 20530