School District Denver v. Keyes Brief in Opposition to Certiorari

    No. 89-1698

In The

Suprem e Court of tfte U m teb  S ta te s
October Term, 1989

School District No. 1, Denver, Colorado,
Petitioner,

v.

Wilfred Keyes, et a l,

On Petition For WTrit  of C ertiorari 
To the United States Court of Appeals 

For the Tenth Circuit

B R IEF IN  OPPOSITION TO CERTIORARI

Antonia Hernandez 
E. Richard Larson 
Norma V. Cantu 
Maldef
140 E. Houston St.
Suite 300
San Antonio TX 78205 
(512) 224-5476

P eter Roos 
M.E.T.A., Inc.
524 Union St.
San Francisco CA 94133 
(415) 398-1977

* Counsel of Record

* Gordon G. Greiner 
Holland & Hart 
P.O. Box 8749 
Denver CO 80201 
(303) 295-8235
J ulius L. Chambers 
Charles S. Ralston 
Norman J. Chachkin 
99 Hudson Street 
New York NY 10013 
(212) 219-1900

James M. Nabrit III 
7211 16th St. N.W. 
Washington DC 20012 
(202) 723-5916

Counsel fo r  Respondents

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



RESTATED QUESTION PRESENTED

Whether, where a school district has failed to 

completely desegregate, the trial court properly exercised 

its discretion by retaining jurisdiction while relaxing 

supervision under an Interim Decree, which enjoined the 

Board to achieve integration under this Court’s Swann 

principles without mandating any detailed pupil 

assignment plan.



11

Restated Question P resen ted .......................  i

Table of A uthorities.......................................  iv

S ta tem en t.........................................................  1

REASONS FO R DENYING TH E W RIT .. 15

I. CERTIORARI SHOULD BE DENIED 
BECAUSE TH E PETITION PRESENTS 
NO CONFLICT WITH EITHER THE 
DECISIONS OF THIS COURT O R OF 
O THER COURTS OF A PPEA LS....... 15

A. Some Of The Questions Presented 
Are Premised Upon Assumptions 
Which Are Directly Contradicted By 
The Findings Of Both Courts Below .. 15

1. In Denver The Transition From A
Dual System Is Not C om plete ...... 15

a. The remedial plan in Denver has 
been accomplished through a 
series of interim amendments to 
the 1974 d ec ree .......................... 15

TABLE OF CONTENTS

Page



Ill

TABLE OF CONTENTS (continued)

Page

b. The school authorities have 
disobeyed the injunction as to 
both pupil assignment and faculty 
integration and have resegregated 
schools which were previously
in tegrated ....................................  19

c. The asserted conflicts do not exist 23

2. The District Court’s Temporary 
Replacement Of The 1974-76 Decree 
With The Interim Decree Was Not 
Premised On The Unitary Status Of 
The D istrict.....................................  24

B. The Issues Purportedly Raised In 
Questions 3 And 4 Are Not Pre­
sented By This Case, Whose Actual 
Remedial Processes Conflict With 
No Other P recedents........................ 26

II. CERTIORARI SHOULD NOT BE 
GRANTED TO REVIEW  THE 
INTERIM INJUNCTION WHICH 
CONFLICTS WITH NO OTHER 
JUDICIAL D EC ISIO N .......................... 31



IV

TABLE OF CONTENTS (continued)

Page

III. TH E DENIAL OF THIS WRIT 
SHOULD NOT BE D EFERRED  
PENDING TH E OUTCOM E IN TH E 
OKLAHOMA CITY SCHOOL CASE .. 39

A. Contrary To Petitioner’s Assertion 
There Is No Relationship Between 
The Issues Accepted For Review In 
Oklahoma City And The Proceedings
Below In D en v er......................     39

B. The Denial Of Certiorari Should
Not Be D elayed .................................  42

Conclusion .......................................................  44

Table of Authorities

Cases:

Board of Education of Oklahoma City v.
Dowell, No. 89-1080, 58 U.S.L.W. 3610
(U.S. March 27, 1990)............................ 38, 40, 41, 42,

43

Brown v. Board of Educ., 349 U.S. 294 
(1955)(Brown I I ) .............................. 34



V

Dayton Board of Educ. v. Brinkman, 443
U.S. 526 (1979)(Dayton I I ) ....................  34

Dowell v. Board of Educ. of Oklahoma City 
Public Schools, 890 F.2d 1483 (10th Cir.
1989), cert, granted, 58 U.S.L.W. 3610
(U.S. March 27, 1990), No. 89-1080 .....  39, 40

Dowell v. Board of Educ. of Oklahoma City,
338 F. Supp. 1256 (W.D. Okla.), affd,
465 F.2d 1012 (10th Cir.), cert, denied,
409 U.S. 1041 (1972).............................  39n

Keyes v. School Dist. No. 1, Denver, 423
U.S. 1066 (1975).....................................  2n

Keyes v. School Dist. No. 1, Denver, 413
U.S. 189 (1973)....................................... In

Keyes v. School Dist. No. 1, Denver, 521
F.2d 465 (10th Cir. 1975)........................  2n

Keyes v. School Dist. No. 1, Denver, 670
F. Supp. 1513 (D. Colo. 1987)..............  9n

Keyes v. School Dist. No. 1, Denver, 653
F. Supp. 1536 (D. Colo. 1987)..............  6n

Table of Authorities (continued)

Page



VI

Table of Authorities (continued)
Page

Keyes v. School Dist. No. 1, Denver, 609
F. Supp. 1491 (D. Colo. 1985)..............  5n

Keyes v. School D ist No. 1, Denver, 540
F. Supp. 399 (D. Colo. 1982)................  4n

Keyes v. School Dist. No. 1, Denver, 474
F. Supp. 1265 (D. Colo. 1979)............. . 17

Keyes v. School Dist. No. 1, Denver, 380
F. Supp. 673 (D. Colo. 1974) ........ . 2n

Keyes v. School Dist. No. 1, Denver, 368
F. Supp. 207 (D. Colo. 1974)................  2n

Morgan v. Nucci, 831 F.2d 313 (1st Cir.
1987)............................................... . 23, 41

Pasadena Bd. of Educ. v. Spangler, 427
U.S. 424 (1976)..................................... . 11, 13, 23, 41

Riddick v. School Bd. of Norfolk, 784 F.2d 
521 (4th Cir.), cert, denied, 107 S. Ct.
420 (1986)............................................... . 42

Scandia Down Corp. v. Euroquilt, Inc., 772
F.2d 1423 (7th Cir. 1985) ................... . 37



vu

Spangler v. Pasadena Bd. of Educ., 611 F.2d
1239 (9th O r. 1979)...............................  23n

Swann v. Charlotte-Mecklenburg Board of
Educ., 402 U.S. 1 (1971)........................ i, 10, 33, 34,

36

United States v. Overton, 834 F.2d 1171
O r. 1987).....................      42

United States v. Swift & Co., 286 U.S. 106
(1932) ..............................    40

Rules:

Fed. R. Civ. P. 6 5 ........................................... 31

Table of Authorities (continued)

Page



No. 89-1698

IN TH E
SUPREM E COURT O F TH E UNITED STATES 

OCTOBER TERM, 1989

SCHOOL DISTRICT NO. 1, DENVER, COLORADO,
Petitioner,

vs.

W ILFRED KEYES, et. al.

On Petition For Writ of Certiorari 
To the United States Court of Appeals 

For the Tenth Circuit

BRIEF IN OPPOSITION TO CERTIORARI

Statement

Respondent pupils and parents have sought the 

desegregation of the public schools of Denver, Colorado 

since 1969. After this Court’s 1973 opinion in this case,1

1 Keyes v. School Dist. No. 1, 413 U.S. 189 (1973).



2

the District Court on remand found that the school 

system had been unconstitutionally segregated.2 When 

the school board failed to make an acceptable proposal, 

the court ordered the implementation in 1974 of a 

desegregation plan designed by the Court’s consultant.3 

In a 1975 opinion the Tenth Circuit affirmed the liability 

finding and modified the remedy to eliminate "part-time" 

desegregation provisions.4 This Court then denied 

review.5

In 1976 the trial court approved a stipulated 

modification of the pupil assignment plan to carry out 

the appellate mandate, and included an agreed three-

2 Keyes v. School Dist. No. 1, 368 F. Supp. 207 (D. Colo.
1974).

3 Keyes v. School D ist No. 1, 380 F. Supp. 673 (D. Colo.
1974) .

4 Keyes v. School Dist. No. 1, 521 F.2d 465 (10th Cir.
1975) .

5 423 U.S. 1066 (1975).



3

year moratorium on changes of the plan. When the 

moratorium expired in 1979, the parties returned to 

Court, because the Board wished to close certain 

schools. The trial judge ordered certain plan changes 

and noted the Board’s "dereliction" in its duty to propose 

acceptable desegregation arrangements in order to avoid 

criticism by putting that burden on the Court. App. 

B19.6

The Board did not appeal the 1979 finding that the 

system was not "unitary". App. B20. Instead the Board 

embarked on purported integration planning through the 

mechanism of the "Ad Hoc Committee." This process 

was abandoned when the Board, in 1981, proposed its 

'Total Access Plan." That proposal would have 

permitted any pupil in the system to attend any school,

6 Petitioner’s Appendix of Opinions Below, cited herein as
’’App."



4

without assignments by the authorities. After a hearing 

in 1982, the Total Access Plan was rejected with an 

opinion finding that it would "result in resegregation."7

To accommodate a grade reorganization desired by 

the Board, the Court approved the Board’s subsequently 

presented "Consensus Plan" ~ modifying the prior plan -- 

for one year only in 1982. The court appointed an 

expert "Compliance Assistance Panel" to assist the Board 

to develop a more permanent arrangement and to 

establish a unitary system. The Board obtained a one- 

year extension of the "Consensus Plan" in 1983 while it 

supposedly planned assignment revisions. The 

"temporary plan" remained in effect several more years 

after adversary litigation resumed in 1984, when the 

Board rejected the proffered help of the court’s panel,

7 Keyes v. School Dist. No. 1, 540 F. Supp. 399, 402 (D. 
Colo. 1982).



5

declared that the system was already unitary, and moved 

for dismissal of the case and dissolution of the 

injunction.

After a 1984 hearing and briefing (and a delay 

during unsuccessful settlement negotiations), the Court 

issued an opinion June 3, 1985 which rejected the 

District’s claim that it was unitary and denied the 

request to dissolve all pupil assignment injunctions.8 An 

order of October 4, 1985 required the Board to file a 

plan to correct four deficiencies:

(1) Correction of resegregation at Barrett, 

Harrington and Mitchell elementary schools which had 

been caused by the Board’s "Consensus Plan";

(2) Elimination of abuses of hardship and "baby­

sitting" transfer policies;

8 Keyes v. School District, 609 F. Supp. 1491 (D. Colo. 
1985); App B.



6

(3) Corrections of faculty desegregation practices 

which had violated the injunction since 1974;

(4) Plans to assure that future school construction, 

utilization and planning decisions would not reestablish 

the dual system. App. C l.

The Board appealed the two 1985 orders, but there 

being no request for a stay, also filed a plan which was 

considered at a hearing in March 1986. The Court ruled 

that the Board could proceed with that plan in 

September 1986 pending an opinion, which was filed 

February 25, 1987.9 The Court held that it could not 

determine in advance whether the Board’s proposals 

would be effective, but it permitted continued 

implementation of the District’s proposals. Because of 

various uncertainties about the effectiveness of the plans,

9 Keyes v. School District, 653 F. Supp. 1536 (D. Colo. 
1987); App. D.



7

such as the fact the District had eschewed any new 

mandatory pupil assignments to deal with the three 

elementary schools, choosing instead various measures 

designed to induce voluntary integration, the Court ruled 

that it would await the results of the plan before making 

any final determination. App. D8-9. The plan included 

such features as a "grade-a-year" magnet plan to 

integrate Mitchell, cosmetic improvement of buildings 

and grounds at the three black schools to make them 

comparable to paired Anglo schools, and strict 

enforcement of new transfer rules to prevent abuses of 

the baby-sitting transfer policy. The Court said that the 

Board should return to court when it was in a position 

to demonstrate that its proposals had been implemented 

and were effective. App. DIO. The Court rejected the 

plaintiffs’ requests for further injunctive relief, reserving



8

them for further consideration if the Board’s plans 

proved ineffective. Id

The opinion also said that in the interim, pending 

the Board’s further showing, the Court would reduce 

judicial supervision of the district and would no longer 

require the Board to get court approval before changing 

assignments or other aspects of the desegregation plan. 

The Court also advised that it would relinquish 

jurisdiction over the case and enter a permanent 

injunction as soon as the Board proved the effectiveness 

of its plans. App. DIO-13. The Court found a 

permanent injunction necessary, among other reasons, 

because without an injunction the dual system would be 

re-established under the compulsion of Colorado’s Anti- 

Busing Amendment. App. D ll-12.

During the three years since that order, the Board 

has steadfastly pursued appeals but declined the trial



9

court’s invitation to demonstrate the effectiveness of its 

plan and thus precipitate the end of the case.10

On October 6, 1987, the Interim Decree was 

issued.11 The court noted that the interim decree 

"removes obsolete provisions of existing orders, 

relinquishes reporting requirements, and eliminates the 

need for prior court approval before making changes in 

the District’s policies, practices and programs." App. E4. 

The interim decree supersedes all prior injunctions. The 

Board is no longer obligated to follow the Finger Plan 

or any particular plan of pupil assignment. Rather the

10 In addition to the language in the opinions so stating, 
the Court at a status conference on November 13, 1987 made clear 
that it would schedule a hearing at the Board’s request, and that if 
the Board made a satisfactory showing the court would enter a 
permanent injunction and end active jurisdiction of the case. See 
Tr. of Pretrial Conference, Nov. 13, 1987 (Resp. 10th Circuit 
Addendum at 154-168). Although there have been no stays 
pending appeal, and years have passed, the Board has not asked for 
the hearing.

11 Keyes v. School District, 670 F. Supp. 1513 (D. Colo. 
1987). See decree at App. E5-8.



10

Board is directed to achieve and maintain desegregation 

under the Interim Decree’s principles. In language 

intended to adopt this Court’s Swann standard, the 

Board was enjoined in language modeled on the Swann 

case from "operating schools or programs which are 

racially identifiable as a result of their actions."12 An 

appeal, which was consolidated with the appeal of the 

1985 orders, followed.

The Tenth Circuit affirmed the orders of the trial 

court in most respects, with a remand directing certain 

changes in the language of the Interim Decree. The 

Tenth Circuit wrote that "the record evidence adequately 

supports the court’s specific finding that student 

assignments are non-unitary," with the court noting that

12 U 2 applies the rule of Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S. 1, 26 (1971). Where "schools . . . are 
substantially disproportionate in their racial composition" the board 
has a burden of showing that the "racial composition is not the 
result of present or past discriminatory action on their part."



11

it had conducted its own "independent review of the 

record." App. A15. Both courts below rejected the 

Board’s arguments that the case was factually like the 

Pasadena13 case and that resegregation had been caused 

by demographic change. App. A15. The Tenth Circuit 

wrote that the existence of racially identifiable schools 

"especially when they once have been eliminated and 

then resurface as a result of board action, is strong 

evidence that segregation and its effects have not been 

eradicated." App. A15-16. The Board failed to meet its 

burden of showing that "such schools are nondiscrim- 

inatory and that their composition is not the result of 

present or past discrimination. Dayton II, 443 U.S. at 

538; Swann, 402 U.S. at 26." App. A16. The Tenth 

Circuit also noted that the "district does not dispute the

13 Pasadena Board of Educ. v. Spangler, 427 U.S. 424
(1976).



12

standard employed by the district court in determining 

whether a school is ‘racially identifiable.’" App. A15, n.3.

Of course two additional grounds upon which the 

trial court based its continuing jurisdiction were not even 

challenged on appeal. The Board did not contest the 

findings that the district was not unitary because of the 

administration of hardship and baby-sitting transfers and 

the failure properly to desegregate the faculties. The 

baby-sitting transfers contributed to resegregation by 

permitting white pupils to escape former minority 

schools. App. B43-46; D5. The effect of some of the 

transfers was to undercut certain pupil assignments and 

defeat goals of the desegregation plan. The faculty 

assignment policy continued the concentration of 

minority teachers in Park Hill and Denver core city 

schools where the 1960’s constitutional violations



13

occurred, while placing minimal numbers of minority 

teachers in schools located in Anglo areas.

The Court of Appeals also rejected, with one 

exception,14 the Board’s arguments that the Interim 

decree was too vague. The Court specifically held that 

paragraphs 2, 9(A) and 9(C) should not be interpreted 

"to require that racial balance in any school or 

department necessarily reflect the racial proportions in 

the district as a whole," and cited the Spangler case. 

App. A21. Otherwise, the Court found the order a 

"commendable attempt to give the Board more freedom 

to act within the confines of the law," and acknowledged 

the difficulty in drafting an "injunction that will allow the 

district maximum latitude in formulating policies, while

14 The Court found too vague paragraph 4 of the Interim 
Decree on the ground that it merely required the district to obey 
the law. That provision was unchanged from the 1974 Decree 
which was affirmed in 1975.



14

at the same time making the injunction sufficiently 

specific." Id  The Court found the Interim Decree 

sufficiently specific "in light of the difficult subject 

matter." Id. The Court concluded that "in Denver the 

district has not accomplished all desegregation possible 

and practical." Id. at A l l .



1 5

REASONS FOR DENYING TH E WRIT 

I

CERTIORARI SHOULD BE DENIED BECAUSE 
TH E PETITION PRESENTS NO CONFLICT W ITH 

EITH ER TH E DECISIONS O F THIS COURT O R OF 
OTHER COURTS O F APPEALS.

A. Some O f The Questions Presented Are Premised 
Upon Assumptions Which Are Directly Contradicted By 
The Findings O f Both Courts Below.

1. In Denver The Transition From A  Dual System Is 
Not Complete.

a. The remedial plan in Denver has been 
accomplished through a series of interim 
amendments to the 1974 decree.

The Board’s assertion as to purported conflicts rests 

in part upon the false premise that, upon the 

implementation of the stipulated changes to the 1974 

student assignment injunction in 1976, a complete, 

effective and permanent plan for effecting a transition 

from a dual system was in place. The Petition expresses



1 6

this idea in several ways by stating: (1) that the 1974-76 

decrees constituted implementation of " . . .  a 

comprehensive remedial plan . . . see Question 1; (2) 

that ". . . the remedial process of desegregation has been 

carried to completion," Pet. at 11; (3) that ". . . the 

judicially prescribed remedy was complete . . . id. at 

12; (4) that ". . . the affirmative duty to desegregate 

schools has been accomplished . . . id. at 13; and (5) 

that ". . . the purposes of the remedial plan have been 

fulfilled . . . ,"  id. at 14.

No matter how many different self-serving ways the 

Board describes the situation in Denver, those assertions 

are directly contradicted by the concurrent findings of 

both courts below. App. A15 n.2; A22. Those courts 

determined that the combined 1974-76 decrees were not 

intended to be a "complete" plan because it was known 

at the time that the integration would be undone by



1 7

changes already contemplated by the Board. App. B15; 

18-19. Question 1 is thus not presented by this case 

because the 1974-76 injunction was not in fact "a 

complete plan" as urged by the Petition.

Similarly, in 1979 the district court with specific 

reference to Spangler disavowed the implementation of a 

single comprehensive plan intended to be a complete 

remedy. Instead it characterized its necessary approach 

as utilizing "the entry of interim orders" to "define and 

determine the existence of a unitary system so that 

jurisdiction over the Denver schools may finally be 

relinquished." 474 F. Supp. 1265, 1271 (D. Colo. 1979).

In 1982, after rejection of its Total Access Plan the 

Board presented the "Consensus Plan" as a temporary 

solution. App. B22-23. After a hearing, over plaintiffs’ 

objections that the Consensus Plan would also 

resegregate schools integrated under the then current



1 8

plan, the district court accepted the interim approach, 

reluctantly approving the plan for only one school year 

"as an expedient which will accommodate the 

educational policy decision to move to middle schools 

• • • App. B25. It is thus equally clear that both the 

Board and the district court did not intend the 1982 

Consensus Plan as a "comprehensive" or "complete 

plan," as the Petition contends, but rather as a

temporary expedient, where both the district court and 

all parties contemplated the need for future changes to 

bring the district into compliance with respect to pupil 

assignment.

The district court itself in its 1985 opinion

recognized and explicitly rejected the Board’s assertion 

that "The 1974 Decree, as modified in 1976, called for a

complete and adequate remedy for the segregative

effects of Denver’s dual system." App. B29, 30-35. It



19

also reviewed its remedial orders after 1976 and noted 

their temporary, interim nature. Id.

The school board’s contention here, that the 

remedial orders were intended to be complete upon 

implementation without further review, is entirely 

unsupported in the record and directly contradicted 

there. In view of this absolute lack of support one 

wonders how the Board can justify this assertion.

b. The school authorities have disobeyed the 
injunction as to both pupil assignment and 
faculty integration and have resegregated 
schools which were previously integrated.

The Petition’s second false premise for the alleged 

conflicts is the alleged "full compliance" with the district 

court’s remedial orders, also directly contradicted by the 

findings below.

Those findings show that as to pupil assignment the 

Board fostered evasion of the injunction’s assignments by



20

its lax administration of permissive policies allowing 

parent-initiated "hardship" transfers, abuse of which the 

district court found had adversely affected the level of 

integration at a number of schools. App. B44-47.

The Court also determined that the substantial 

changes in pupil assignments effected under the 

Consensus Plan, as predicted by the plaintiffs, had 

resegregated a number of elementary schools. The 

Board’s alternative explanation based on demographic 

change was rejected. App. A14-15. Three such schools, 

Harrington, Barrett and Mitchell were targeted for relief.

With respect to faculty integration the Court found 

that since 1974 the District had been in violation of 

express provisions of the Decree’s faculty desegregation 

requirements (App. B38) and had been interpreting 

those provisions in such a way as to minimize the 

representation of minority faculty in previously



21

predominately white schools (App. B37). Moreover the 

Court recognized that the earlier order was deficient in 

that it did not prevent the Board from still concentrating 

minority teachers in the segregated minority schools of 

Park Hill and core city Denver. App. B38-41. The 

Board was required to provide plans and policies which 

would cure these defects. App. C4.

The foregoing findings hardly support the Board’s 

assertion here of "full compliance" with the district 

court’s remedial orders (Question 1).

The Tenth Circuit had no trouble recognizing as 

erroneous the Board’s assertions as to the 

"completeness" of the plans (App. A15, n.2) and its full 

compliance with them (App. A4-5). It considered the 

numerous reasons underlying the district court’s 

determination that the school district had not attained



22

unitary status as to pupil assignment,15 and found them 

supported in the record. App. A14.

The Court of Appeals also had no difficulty in 

sustaining the lower court’s continued exercise of 

jurisdiction in requiring a remedy proposal for these 

vestiges of the dual system and in retaining jurisdiction 

to see whether the Board’s new plans were in fact 

effective. App. A15-16.

The district court took a similar approach with 

respect to the efficacy of Resolution 2233 in maintaining 

integration during the interim decree. The Court 

declared: "What the District does in the operation of its 

schools will control over what the Board says in its 

resolutions." The Petition implies that this

15 In this proceeding the Board does not contest the 
findings below as to its violation of the faculty integration 
provisions and the adverse impact of parent-initiated transfers on 
the results of the desegregation plan.



23

demonstration was the only reason the Tenth Circuit 

upheld continuing jurisdiction (Pet. at 15), but as 

discussed supra that was not the case. Moreover, in a 

district such as Denver where the transition from a dual 

system is not complete, Spangler’s presumption that the 

Board should be allowed to conduct its own affairs free 

from judicial supervision obviously does not apply.

c. The asserted conflicts do not exist.

Given the fact that in Denver the remedial plans 

were never intended to be complete upon inception 

without further judicial review, that school authorities 

violated the remedial orders, and that those violations in 

turn required a remedial effort which is not complete, 

the asserted conflicts with the decisions in Morgan and 

Spangler16 do not exist. Moreover, "Question 1" is not

16 Morgan v. Nucci, 831 F.2d 313 (1st Cir. 1987); Spangler 
v. Pasadena Board of Educ., 611 F.2d 1239 (9th Cir. 1979).



2 4

presented on the facts and findings in this case, 

concurred in by both courts below.

2. The District Court’s Temporary Replacement O f The 
1974-76 Decree With The Interim Decree Was Not 
Premised On the Unitary Status O f The District.

The Board, against the express findings of the 

district court, also attempts to equate that court’s 

decision to vacate the original final decree with an 

unexpressed finding of unitary status. See Question 2. 

The petitioner faults the Tenth Circuit because: "It failed 

or declined to recognize that the very fact of dissolution 

of the 1976 decree, and the express determination that 

the school district need no longer follow the Finger Plan, 

was the equivalent of a finding in 1987 that the district



2 5

had become unitary at least as to student assignments." 

Pet. at 10.17

This assertion of an equivalency to unitary status 

flowing from the decision to utilize an interim decree 

ignores the district court’s express findings, which have 

uniformly rejected assertions of unitary status since 1976, 

and it ignores the expressed reasons underlying the 

decision. Those reasons included the Court’s 

determination that while the District had not yet attained 

unitary status, the Interim Decree’s "principal purpose is 

to enable the defendants to operate the school system 

under general remedial standards, rather than specific 

judicial directives." App. E4. The court’s objective was

17 The school board similarly attempts to explain the 
reason for replacement of the original decree as to pupil 
assignment as there being no further necessity for it because that 
remedy was complete: ". . . [T]he original remedial order has been 
fully executed and a court has determined that it need no longer be 
followed." Pet at 12. We have dealt with the "completeness" 
contention earlier.



2 6

to see whether, left to its own discretion without specific 

court formulas and directives, the District could attain 

unitary status. That the Court was not yet willing to 

completely free pupil assignment from judicial review 

was reflected in the Interim Decree’s provisions relating 

to that subject. App. A18-19. In opposing this position, 

the Board argues for a rule embracing a rigid all-or- 

nothing approach to pupil assignment provisions, which 

is inconsistent with the flexibility inherent in equitable 

relief and which finds no support whatsoever in any 

reported case. Pet. at 12.

B. The Issues Purportedly Raised In Questions 2 and 4 
Are Not Presented By This Case, Whose Actual 
Remedial Processes Conflict With No Other Precedents.

Nothing in the Interim Decree requires periodic 

adjustments of pupil assignments to maintain racial 

balance in the schools. Thus the Question 2 assertion of



2 7

a requirement "to maintain racial balance in all schools 

of the district for an indeterminate period of time (and 

perhaps permanently)" contains a number of hypotheses 

contradicted by the record.

The first hypothesis presumably is that either or 

both of paragraphs 4 and 2 of the Interim Decree which 

required "maintenance" of the desegregated condition 

and prohibited the operation of "racially identifiable 

schools" carry the questioned requirement. See Pet. at 

13. Yet as a result of the Tenth Circuit’s review, both 

of these contentions have been laid to rest. Paragraph 4 

has been stricken. App. A18. Paragraph 2 has been 

given a gloss which prevents the Board’s interpretation. 

Id. at A21.

Contrary to petitioner’s assertions there is nothing 

in the Interim Decree which requires "continuing 

adjustments in order to preserve racial balance" unless



2 8

that imbalance is the result not of demographic change, 

but the Board’s own actions. This provision in no way 

conflicts with Pasadena, supra, where the plan was 

complete and this Court struck down a requirement of 

the maintenance of racial balance where imbalances 

were the result of demographic changes rather than 

Board action.

The second hypothesis, as to the indeterminate life 

of the Interim Decree, hides the fact that it is the 

petitioner here who controls when the district court will 

hear the issue of the adequacy and effectiveness of its 

1987 proposals; when that showing is accepted, the 

district court stands ready to lift the Interim Decree: 

"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." App. E4.



2 9

Thus the petitioner can trigger the final stage of this 

case whenever it believes that it can demonstrate that its 

programs which the court conditionally accepted in 1987 

have been effective. Requiring this showing is 

particularly appropriate because, as the district court 

noted at the time, the school district chose to use 

untried techniques, including a "grade-a-year" magnet 

plan, to reestablish integration, and there was no 

guarantee that they would in fact be effective. App. D8. 

"It is precisely because the Board has selected the more 

subtle methods for inducing change that this court must 

retain jurisdiction to be certain that those methods are 

effective." Id. at 9. Similarly, it was reasonable to 

require the Board to demonstrate the effectiveness of its 

new policies as to baby-sitting transfers and faculty 

desegregation. Since these matters constitute "unfinished 

business," requiring this showing from the Board was



3 0

entirely reasonable and offends no precedent of which 

we are aware. The very existence of this unfinished 

business negates petitioner’s assertion that the remedy 

was already complete. A remedy was put in place in the 

Fall of 1987, but with its effectiveness remaining to be 

determined.

The third hypothesis assumes the existence of a 

permanent decree with hypothetical requirements of 

periodic adjustments for racial balance. The short 

answer is that such a permanent decree does not 

currently exist in this case, and there is no basis for 

assuming that any permanent relief ultimately provided 

would include such a requirement.

Thus none of the issues asserted under Question 2 

actually exist in this case, and the remedial approach 

actually adopted by the district court is unremarkable 

and conflicts with no other precedent.



3 1

For the same reasons the issues supposedly 

described in Question 4, which also attacks alleged 

injunctive requirements of racially balancing every school 

in the District, are in fact not presented by the decisions 

below. See App. A20-21.

The remaining issues contained in Questions 3 and 

4 relate to the Interim Decree’s compliance with Fed. R. 

Civ. P. 65, which we will now address.

II

CERTIORARI SHOULD NOT BE GRANTED TO 
REVIEW  TH E INTERIM INJUNCTION W HICH 

CONFLICTS W ITH NO OTHER JUDICIAL 
DECISION

1. This question of the supposed vagueness of the 

Interim Decree presents no serious issue beyond that of 

alleged error, and thus fails to meet the Court’s 

standards for granting certiorari. No conflict among the



32

Circuits is urged or demonstrated. At most the decree is 

merely interim in nature; the Board controls its duration, 

and if left to its own pursuits, the district court will 

shortly replace the interim decree with final orders which 

may or may not present the other issues which this 

Petition prematurely anticipates.

2. If there is any difficulty in framing a less specific 

injunction, that difficulty has nothing to do with whether 

or not the new provisions are "replacing a satisfied 

remedial order . . . ," Pet. at 16, but rather lies in the 

complexity of the problem.

3. The Board’s real position is that there can be no 

acceptable student assignment or school utilization or 

construction decree unless it speaks in terms of rigid 

mathematical formulas or specific schools and since the 

Interim Decree here does not use that approach, it must 

fail for vagueness. The focal point of this attack is the



33

injunction’s use of the term "racially identifiable," which 

the district court equated with Swann’s "schools which 

are substantially disproportionate in their racial

composition," {Swann, 402 U.S. at 26) or "one-race or 

virtually one-race schools, {id.), or schools which are "all 

or predominately of one race," {id.) or "disproportionate 

racial concentrations," id  at 23. App. E5. We doubt 

that any of these other legal standards from Swann 

would be any more acceptable to petitioner, yet this is 

the correct legal standard, and the district court here did 

follow it.

4. At footnote 11 the petitioner rails against the 

injunction’s supposed prohibition against any racially 

identifiable school, and ignores the contrary 

interpretation and instruction of the Circuit Court. 

Compare Pet. at 17, n. 11 with App. A  at 21. When it 

recognizes the Tenth Circuit’s interpretation it then



3 4

faults it for not enunciating a mathematical formula for 

the Board to follow. Pet. at 17. Footnote 11 also 

complains that this provision prohibits the district from 

having one-race schools which might otherwise be 

acceptable under Swann, but there is no support for this 

contention. The Board seems to be contending that it is 

as of right entitled to some one-race schools, regardless 

of their cause, and that this provision takes away this 

entitlement.

5. The Board then erroneously contends that even 

though it has not yet eliminated discrimination root and 

branch in Denver, as this Court’s prior opinion required 

(413 U.S. at 213), it should nevertheless be required only 

to refrain from intentional discrimination and to be free 

from any responsibility for the results of its actions. Pet. 

at 18. This assertion is contrary to the teachings of 

Swann, Brown II, and Dayton II. See App. A13-14.



3 5

6. The Board next contends, somewhat 

disingenuously in view of the nearly two decades of 

litigation about its conduct in the remedial stages of this 

case, that it has no idea of what it can or cannot do in 

the operation of the District and is subject to "the 

constant peril of future judicial intervention in the form 

of contempt proceedings (as well as continued extension 

of judicial control)." Pet. at 18-19. If the Interim 

Decree’s vagueness leads the Board into an unwitting 

violation of it, that very vagueness would protect them 

from contempt, as the Decree would be construed in 

their favor. See the discussion of this point in the Tenth 

Circuit opinion, App. A21.

7. While the Board argues that a more "specific" 

decree would give it clear direction as to future lawful 

conduct, that assertion itself is sophistry. The 

combination of factors and considerations that go into



3 6

consideration of issues relating to pupil assignment, 

school construction and utilization, to name just a few 

topics of everyday school district life are too complex to 

be captured and prejudged by any rigid formula. To 

even approach the level of "certainty" desired by the 

school district would require a decree scores of pages 

long, with every uncovered or unthought-of hypothetical 

creating the same type of "peril." It is exactly for this 

reason that the principled approach chosen by the 

district court is a far better alternative than the rigid 

formula approach contended for by the Board. As 

noted by the Tenth Circuit: "The degree of specificity 

may be determined in light of the difficult subject 

matter." App. A21. The Swann opinion recognized the 

same difficulty in defining the remedy.18

18
"However, in seeking to define the scope of remedial 

power or the limits on remedial power in an area as sensitive as we 
deal with here, words are poor instruments to convey the sense of



37

There will always be gray areas where countervailing 

considerations could lead to differing points of view as 

to the appropriate choice. But in those instances school 

authorities can always seek guidance from the court. 

Contrary to the Board’s contention the Board does not 

have to act at its peril if it truly is in doubt. Scaridia 

Down Corp. v. Euroquilt, Inc., 772 F.2d 1423 (7th Cir. 

1985).

8. The Petition at 19 attempts to make this 

"vagueness" a problem endemic to any permanent or 

continuing obligation which follows a determination that 

the remedy is complete. We believe that question 

should be left to a later day when such an injunction is 

in place. That is not the case today, and of course it 

may not be the case in the future; there is little reason

basic fairness inherent in equity. Substance, not semantics must 
govern, and we have sought to suggest the nature of limitations 
without frustrating the appropriate scope of equity." 402 U.S. at 31.



3 8

to grant certiorari today to consider the propriety of 

injunctive provisions that do not exist. Pet. at 19. When 

Denver is in fact a school district that has "fulfilled the 

prescribed remedy for a constitutional violation" the time 

will be ripe for the courts below to consider what 

continuing obligations are appropriate. Pet. at 19. 

Indeed if the Court’s opinion in Oklahoma City is 

applicable the courts below will follow it. Thus there is 

no purpose to be served by holding this Petition to await 

the outcome in Oklahoma City.



3 9

III

TH E DENIAL O F THIS W RIT SHOULD NOT BE 
D EFERRED  PENDING TH E OUTCOM E IN TH E 

OKLAHOMA CITY  SCHOOL CASE

A. Contrary To Petitioner’s Assertion There Is No 
Relationship Between The Issues Accepted For Review 
In Oklahoma City And The Proceedings Below In 
Denver.

In Dowell,19 the school district had implemented the 

plan in 1972,20 been declared unitary in 1977, and then 

reverted partially to segregated schools in 1984. In 1977 

the district court relinquished jurisdiction but did not 

dissolve its injunction. No one had appealed those 

determinations.

19 Dowell v. Board of Educ. of Oklahoma City Public 
Schools, 890 F. 2d 1483 (10th Cir. 1989), cert granted, 58 U.S.LW. 
3610 (U.S. Mar. 27, 1990), No. 89-1080.

20 Dowell v. Board of Educ, 338 F. Supp. 1256 (W.D. 
Okla.), aff’d, 465 F.2d 1012 (10th Cir.), cert denied, 409 U.S. 1041 
(1972).



4 0

None of the five questions presented in Oklahoma 

City have any direct relationship to the decisions below 

in Keyes. Four of them are premised on the trial court’s 

finding of unitary status in Dowell (which never occurred 

in Keyes) and the fifth relates to the applicability of 

United States v. Swift & Co., 286 U. S. 106 (1932) to the 

modification or vacation of a desegregation decree 

following a finding of unitary status.

Since neither court below invoked Swift as the basis 

for refusing to vacate the Denver decree, this issue is 

also inapplicable to the decisions below in Keyes.

The petitioner in Oklahoma City seeks the Court’s 

definition of the legal significance of unitary status, both 

in terms of the school district’s continuing duties and the 

district court’s continuing jurisdiction. Those issues are 

not present in Keyes because Denver has not been found 

to have completed its conversion from the dual system,



4 1

either as to pupil assignments and transfers or faculty 

integration, the most basic components of such 

conversion.

It is not that the decision in Oklahoma City could 

have no future relevancy to Keyes, just as it could to any 

existing school case; but the Oklahoma City decision 

would not result in a determination that either the 

district court or the Tenth Circuit in this case had erred 

in the decisions below. Therefore, if certiorari is to be 

granted in Keyes it is for reasons totally unrelated to the 

questions presented in Oklahoma City.

Moreover, the conflicts which this Court granted 

certiorari in Oklahoma City to resolve have no 

relationship to the conflicts asserted in this Petition. This 

Petition relies on supposed conflicts with Morgan and 

Spangler, supra, while Oklahoma City, concerned with the 

rules for a school district’s unilaterally changing a court-



4 2

ordered plan after a unitary finding, is concerned 

exclusively with asserted conflicting results in Riddick v. 

School Bd. o f Norfolk, 784 F. 2d 521 (4th Cir.), cert, 

denied, 107 S. Ct. 420 (1986) and United States v. 

Overton, 834 F. 2d 1171 (5th Cir. 1987). As a reflection 

of how different the issues are in these two petitions, the 

Denver Petition does not even argue any conflict with 

either Riddick or Overton, and as discussed supra, only 

refers to Overton in the context of a final injunction 

which does not exist in the Denver case. Pet. at 19.

B. The Denial O f Certiorari Should Not Be Delayed.

The Denver Petition’s assertion that the issues in 

the two cases are "closely related" (Pet. at 20), borders 

on the extreme fringes of hyperbole.

In summary, whatever the decision in Oklahoma City 

it will have no impact upon the past conduct of the



4 3

Keyes case, since Oklahoma City is exclusively concerned 

with issues which arise after a school district is declared 

to be unitary. To the extent that this Court’s decision in 

Oklahoma City speaks to the future conduct of Keyes, 

such as the content of the permanent injunction, it is 

premature to address those issues in the Denver case. 

Therefore there is no reason to delay the denial of 

certiorari in this case. Upon such denial and the return 

of the case to the district court it is likely that, at the 

Board’s request, the district court will hold a final 

hearing and take whatever action is appropriate to 

conclude the case. That process of formulating a 

permanent injunction and dismissing the case has now 

been delayed several years by the Board’s appeal of the 

Interim Decree and refusal to attempt to prove the 

efficacy of its plans.



4 4

Conclusion

For the foregoing reasons, Respondents respectfully 

pray that the writ be denied forthwith.

Respectfully submitted,

Antonia Hernandez 
E. Richard Larson 
Norman V. Cantu 
MALDEF
140 E. Houston Street 
Suite 300
San Antonio, TX 7S205 
(512) 224-5476

Peter Roos 
M.E.T.A., Inc.
524 Union Street 
San Francisco, CA 94133 
(415) 398-1977

*Counsel of Record

*Gordon G. Greiner 
Holland & Hart 
P.O. Box 8749 
Denver, CO 80201 
(303) 295-8235

Julius L, Chambers 
Charles S. Ralston 
Norman J. Chachkin 
99 Hudson Street 
New York, NY 10013 
(212) 219-1900

James M. Nabrit, III 
7211 16th Street, N.W. 
Washington, D.C. 20012 
(202) 723-5916

Counsel for Respondents